United States v. Marlon Garth

ROTH, Circuit Judge,

Dissenting-

On the basis of the record before us, I do not believe that appellant, Marlon Garth, can satisfy the “actual innocence” exception to the bar of procedural default. For that reason, I do not agree with the majority that this case should be remanded to the District Court for further proceedings. I believe that we should affirm the judgment of sentence of the District Court.

Rather than going through each of the theories of possible conviction of the firearm offense, ie., actual use, actual carrying, constructive possession, and aiding and abetting, I will turn to only one, aiding and abetting, which I believe offers the strongest record to demonstrate that proof of the elements of the charged firearm offense are present in the record.

Garth pled guilty to Count One, knowingly and intentionally possessing more than five grams of cocaine with intent to distribute, and to Count Two, using and carrying a firearm during and in relation to any drug trafficking crime. Count Two charged the offense under both 18 U.S.C. § 924(c)(1) and § 2.1 Section 2 provides:

(a) Whoever commits an offense against the United States or aids, abets, counsels, commands, induces or procures its commission, is punishable as a principal.

*115Garth and three companions were arrested in the 30th Street Station, on their way to Ranson, West Virginia, to sell drugs. Garth had made this trip several times before. According to Garth’s Grand Jury testimony, they were going to West Virginia because the price that would be paid for the drugs there was four times the price paid in Philadelphia. SA 17a. Garth also testified before the Grand Jury that he was aware that one of his co-defendants was carrying a gun when the group of four men entered the railroad station:

MR. HALL: Your Honor, I was — I asked Mr. Garth before the grand jury: While you were walking into the train station did Michael Gilbert say anything to you?
A. Yes.
Q. What did he say?
A. He said that Keith Wilson had a gun.
Q. Do you remember what his words were?
A. He said: Keith has a gun. And I said I don’t know where it is. And then he said, said it’s in his waistband. Then we just kept on walking and went in.

SA at 8-9a. (This same testimony was cited by the government at the sentencing hearing. SA 66a.)

At the plea hearing, there was additional evidence cited to support the charges against Garth. The government proffered that Officer Michael Corbett would testify to Garth’s admissions regarding the possession of the crack, that Garth knowingly possessed the crack, and also that Garth knew that the gun was present at Thirtieth Street. SA 27a. The government also proffered that Michael Gilbert would testify that he told Garth about the presence of the firearm and that government experts would testify concerning the use of firearms for protection in drug trafficking and about the operability of the gun. SA 28a. The district judge then asked Garth if that essentially was correct, “is that what happened?” Garth replied, “Yes, your Hon- or.” Id.

In United States v. Price, 76 F.3d 526 (3d Cir.1996), we considered the elements of aiding and abetting a violation of § 924(c)(1). Price involved a crime of violence, a bank robbery, rather than a drug trafficking crime as we have here. The elements are easily translated, however, into the drug trafficking context. In Price, we determined that the conviction would be affirmed because the accomplice was plainly using and carrying a firearm in connection with a crime of violence; Price probably knew in advance and most certainly knew during the robbery what the accomplice was doing; but Price continued to participate in the offense. Id. at 530.

In the case before us, the four defendants were engaged in drug trafficking; they were carrying a gun with them in connection with their drug trafficking; Garth was aware that a gun was involved but even so he continued to participate in the transportation of the drugs to West Virginia; and experts were prepared to testified that drug traffickers carry firearms to protect themselves and their drugs. The fact that Keith Wilson did not take out the gun and brandish it demonstrates the difference between drug trafficking and bank robbery. The fact, however, that Congress intended the enhanced penalty to apply in both situations is clear from the language of § 924(c)(1): “Whoever, during and in relation to any crime of violence or drug trafficking crime ... uses or carries a firearm ...”

For the above reasons, I conclude that the record belies Garth’s claim of “actual innocence.” Because I see no need to remand this case for a hearing on that issue, I respectfully dissent.

. Count One also charged aiding and abetting under § 2, as well as charging the substantive offense.