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U. S. C. $ 924(c)(1). In the course of searching Johnny Lee Mukes' house, officers found, in the top drawer of a nightstand in the bedroom, two plastic bags containing 32.9 grams of cocaine, a loaded .38-caliber derringer, and an unloaded .25-caliber automatic pistol. 1992 U. S. App. LEXIS 544 (CA6) (unpublished). When the police found James Edward Langston, he was standing at a table covered with cocaine base, six to eight feet from which was a loaded .38-caliber semiautomatic pistol hidden under a mattress. United States v. Featherson, 949 F. 2d 770 (CA5 1991).
The Courts of Appeals for the Fifth and Sixth Circuits, construing the term “uses” broadly, held that the jury could reasonably conclude that the presence of the firearms was connected to the trafficking in that they could protect the petitioners' merchandise. See also United States v. Blake, 941 F. 2d 334, 342–343 (CA5 1991); United States v. Molinar-Apodaca, 889 F. 2d 1417, 1424 (CA5 1989). Other courts have adopted the same approach. See, e. g., United States v. Wilkinson, 926 F. 2d 22, 25–26 (CA1), cert. denied, 501 U. S. 1211 (1991); United States v. Paz, 927 F. 2d 176, 179 (CA4 1991); United States v. Young-Bey, 893 F. 2d 178, 181 (CA8 1990); United States v. Martinez, 967 F. 2d 1343, 1346-1347 (CA9 1992); United States v. Handa, 1991 U. S. App. LEXIS 21752 (CAI) (unpublished); United States v. Poole, 878 F. 2d 1389, 1393– 1394 (CA11 1989).
The petitioners insist that $ 924(c) does not contemplate presuming an intent to use a firearm in relation to drug trafficking from the fact that a gun was found in the same room as drugs and related paraphernalia. The Sixth Circuit remarked that Mukes' position “has some support in case law from other circuits,' and, in particular, cited the Second Circuit's decision in United States v. Feliz-Cordero, 859 F. 2d 250, 254 (1988). See 1992 U. S. App. LEXIS 544, *2 (“[Feliz-Cordero) is difficult to reconcile with our circuit precedent. ... Insofar as there is a conflict, of course, and unless the Supreme Court or Congress should instruct us
1 Title 18 U.S. C. $ 924(c)(1) provides: “Whoever, during and in relation to any crime of violence or drug trafficking crime . . uses or carries a firearm, shall, in addition to the punishment provided for such crime be sentenced to imprisonment for five years These cases involve only the “use" prong of the statute.
otherwise, we must follow our own precedents"). Id., at *6.2 Petitioners also rely on cases from the Third and District of Columbia Circuits. See United States v. Bruce, 939 F. 2d 1053, 1054-1056 (CADC 1991); United States v. Theodoropoulos, 866 F. 2d 587, 597–598 (CA3 1989). But see United States v. Jefferson, 974 F. 2d 201 (CADC 1992).
Because this issue arises with some frequency, and in light of the conflict in the Circuits, which shows no signs of abating, I would grant certiorari to clarify the meaning and scope of $ 924(c).
No. 91–8167. SMITH v. UNITED STATES; and
No. 91–8328. HARRIS v. UNITED STATES. C. A. D. C. Cir. Certiorari denied. JUSTICE WHITE would grant certiorari. JUSTICE THOMAS took no part in the consideration or decision of these petitions. Reported below: 294 U. S. App. D. C. 300, 959 F. 2d 246.
No. 91–8230. FRANK v. UNITED STATES. C. A. 9th Cir. Certiorari denied. Reported below: 956 F. 2d 872.
Opinion of JUSTICE STEVENS, respecting the denial of the petition for writ of certiorari.
This case illustrates the important difference between an order denying a petition for certiorari and a ruling on the merits.
The Insanity Defense Reform Act of 1984 ensures that a federal criminal defendant found not guilty by reason of insanity will not be released onto the streets. It provides that “the Attorney General shall hospitalize the person [found not guilty by reason of insanity) in a suitable facility' until a State assumes responsibility for his care and treatment or the Attorney General finds that his release would not create a risk of harm to people or property. 18 U. S. C. $ 4243(e). The question presented by the petition for certiorari is whether a defendant who has pleaded not guilty by reason of insanity is entitled to a jury instruction explaining the effect of this statute. If such an instruction is not given, there is a strong possibility that the jury will be reluctant to accept a
2 In United States v. Jackson, 1991 U. S. App. LEXIS 1757, *170 (CA6) (unpublished), cert. denied, 502 U. S. 828 (1991), the Sixth Circuit noted that some courts had held that “the 'in relation to' language of section 924(c) requires more than 'mere availability': the circumstances must suggest that the defendant intend to and be able to use the firearms during the offense. This, however, has not been the law of the Sixth Circuit.”
meritorious defense because of fear that a dangerous, mentally ill person will go free.
For reasons that I explained at some length 18 years ago, refusal to give such an instruction in an appropriate case can constitute plain error. Until 1984 the refusal to give such an instruction was justified by the absence of a federal statute providing for mandatory commitment. In the District of Columbia, however, where such a statute had been in place since 1955, the instruction was required. Now that the reason for a different rule in different parts of the federal system has been eliminated, the wise rule adopted by then-Judge Warren Burger and his colleagues on the District of Columbia Circuit should be applied throughout the system.
Because the denial of a writ of certiorari is not a ruling on the merits, the Court's action today is not inconsistent with that conclusion. Rather, the Court's action is supported by the fact that a square conflict between two Courts of Appeals has not arisen since the enactment of the 1984 statute, and by the Court's normal practice of awaiting such a conflict before considering the significance of new federal legislation.
No. 91–8333. PALMER V. UNITED STATES. C. A. D. C. Cir. Certiorari denied. JUSTICE THOMAS took no part in the consider
1 United States v. Greene, 497 F.2d 1068, 1092 (CA7 1974) (dissenting opinion) (“[T]he failure of the trial judge to give any advice at all to the jury on a matter that must have loomed large in their deliberations constituted plain error. It is almost inconceivable to me that if the jury had put to one side any concern about the consequences of a not guilty verdict, they would not have entertained a reasonable doubt as to the defendant's sanity').
2 See Pope v. United States, 372 F. 2d 710, 731–732 (CA8 1967) (en banc) (Blackmun, J.).
3 Lyles v. United States, 103 U. S. App. D. C. 22, 25, 254 F. 2d 725, 728 (1957) (en banc) (opinion of Burger and Prettyman, JJ.) (“We think the jury has a right to know the meaning of this possible verdict as accurately as it knows by common knowledge the meaning of the other two possible verdicts”), cert. denied, 356 U. S. 961 (1958). Judges Burger and Prettyman found historical support in Hadfield's Case, 27 How. St. Tr. 1282, 1354–1355 (K. B. 1800), where the Lord Chief Justice instructed the jury that a defendant found not guilty by reason of insanity would be confined. Lyles, 103 U. S. App. D. C., at 26, n. 3, 254 F. 2d, at 729, n. 3.
4 See Singleton v. Commissioner, 439 U.S. 940, 942 (1978) (STEVENS, J., respecting denial of certiorari) and cases cited therein.
ation or decision of this petition. Reported below: 294 U. S. App. D. C. 300, 959 F. 2d 246.
No. 92-2. ASHLEY, WARDEN v. BYERLY. Ct. App. Ky. Motion of respondent for leave to proceed in forma pauperis granted. Certiorari denied. Reported below: 825 S. W. 2d 286.
No. 92–72. SABINE CONSOLIDATED, INC., ET AL. V. TEXAS. Ct. App. Tex., 3d Dist. Certiorari denied. JUSTICE WHITE would grant certiorari. Reported below: 816 S. W. 2d 784.
No. 92-5049. THOMPSON v. UNITED STATES. C. A. 8th Cir. Certiorari denied. JUSTICE WHITE would grant certiorari.
No. 92-5214. RAMOS v. UNITED STATES. C. A. 1st Cir. Certiorari denied. JUSTICE WHITE would grant certiorari. Reported below: 961 F. 2d 1003.
No. 92–174. VAN CAMP V. AT&T INFORMATION SYSTEMS ET AL. C. A. 6th Cir. Certiorari denied. JUSTICE O'CONNOR took no part in the consideration or decision of this petition. Reported below: 963 F. 2d 119.
No. 92–267. UJB FINANCIAL CORP. ET AL. V. SHAPIRO ET AL. C. A. 3d Cir. Motions of Dean Witter Reynolds, Inc., et al., New York Clearing House Association, and American Bankers Association for leave to file briefs as amici curiae granted. Certiorari denied. Reported below: 964 F. 2d 272.
No. 92–285. KEENE CORP. v. LINDSAY. Sup. Ct. Tex. Certiorari denied. JUSTICE WHITE and JUSTICE BLACKMUN would grant certiorari.
No. 92–297. KOONS v. ROGERS ET AL. C. A. 2d Cir. Motion of National Artists Equity Association for leave to file a brief as amicus curiae granted. Certiorari denied. Reported below: 960 F. 2d 301.
No. 92–5556. OMOIKE V. COCA-COLA BOTTLING Co. C. A. 5th Cir. Certiorari denied. JUSTICE BLACKMUN took no part in the consideration or decision of this petition. Reported below: 968 F. 2d 16.
No. 92–5800. GAMBLE v. EAU CLAIRE COUNTY, WISCONSIN, ET AL. C. A. 7th Cir. Certiorari before judgment denied.
An order of THE CHIEF JUSTICE designating and assigning Justice Powell (retired) to perform judicial duties in the United States Court of Appeals for the Fourth Circuit on September 28 and 30, 1992, and for such time as may be required to complete unfinished business, pursuant to 28 U. S. C. $294(a), is ordered entered on the minutes of this Court nunc pro tunc pursuant to 28 U. S. C. $295.
OCTOBER 19, 1992 Certiorari Granted—Vacated and Remanded
No. 91–1633. HATCHER, WARDEN, ET AL. V. DEUTSCHER. C. A. 9th Cir. Motion of respondent for leave to proceed in forma pauperis granted. Certiorari granted, judgment vacated, and case remanded for further consideration in light of Sawyer v. Whitley, 505 U. S. 333 (1992). Reported below: 946 F. 2d 1443.
MORELAND ET UX. v. VELSICOL CHEMICAL CORP. Motion to direct the Clerk to file petition for writ of certiorari out of time denied.
BARNARD V. COLLINS, DIRECTOR, TEXAS DEPARTMENT OF CRIMINAL JUSTICE, INSTITUTIONAL DIVISION. Motion for leave to proceed in forma pauperis without an affidavit of indigency executed by petitioner granted.
No. D-1135. IN RE DISBARMENT OF PIKEN. Disbarment entered. [For earlier order herein, see 504 U. S. 970.]
No. D-1138. IN RE DISBARMENT OF JACOBO. Disbarment entered. [For earlier order herein, see 504 U. S. 981.]
No. D-1139. IN RE DISBARMENT OF FINE. Disbarment entered. [For earlier order herein, see 504 U. S. 981.]
No. D-1141. IN RE DISBARMENT OF ELLIS. Disbarment entered. [For earlier order herein, see 505 U. S. 1202.]
No. D-1144. IN RE DISBARMENT OF DRISCOLL. Disbarment entered. [For earlier order herein, see 505 U. S. 1237.]
No. D-1145. IN RE DISBARMENT OF VAN RYE. Disbarment entered. (For earlier order herein, see 505 U. S. 1237.]