                                                                                                                           Opinions of the United
2002 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


12-12-2002

USA v. Drozdowski
Precedential or Non-Precedential: Precedential

Docket No. 01-3190




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http://digitalcommons.law.villanova.edu/thirdcircuit_2002/797


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PRECEDENTIAL

       Filed December 12, 2002

UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT

No. 01-3190

UNITED STATES OF AMERICA

v.

DAVID DROZDOWSKI, Appellant

On Appeal From the United States District Court
For the Middle District of Pennsylvania
(D.C. No. Cr. 99-00200-1)
District Judge: Honorable Edwin M. Kosik

Argued: September 17, 2002

Before: BECKER, Chief Judge, SCIRICA and McKEE,
Circuit Judges.

(Filed: December 12, 2002)

       ENID W. HARRIS, ESQUIRE
        (Argued)
       Harris & Van Jura
       11 W. Market Street, Suite 700
       Wilkes-Barre, PA 18701-1991

       Counsel for Appellant




       THOMAS A. MARINO
       United States Attorney
       WILLIAM S. HOUSER (Argued)
       Assistant U.S. Attorney
       U.S. Attorney’s Office
       235 North Washington Avenue
       Suite 309, Federal Building
       Scranton, PA 18501

       Counsel for Appellee

OPINION OF THE COURT

BECKER, Chief Judge.

U.S.S.G. S 2D1.1(b)(1) requires courts to increase a
defendant’s offense level by two levels if a dangerous
weapon was possessed by the defendant in the course of a
drug trafficking offense. Note (3) of the Commentary to
S 2D1.1(b)(1) explains that this enhancement"reflects the
increased danger of violence when drug traffickers possess
weapons." The Note specifies that the "adjustment should
be applied if the weapon was present, unless it is clearly
improbable that the weapon was connected with the
offense." This appeal by David Drozdowski, who was
convicted of a drug offense and whose offense level was
increased by two levels pursuant to S 2D1.1(b)(1), presents
the question whether the adjustment applies when the
weapons involved were not only unloaded but also arguably
inaccessible because they were located under a desk, on
top of and in front of which was piled a quantity of boxes,
clothes, and bric-a-brac, much of which the investigating
trooper had to move in order to get to the desk and to
prevent its falling on him while he searched.

Because we find that the District Judge properly applied
this enhancement and committed no other error, we affirm.

I.

In 1998, the Drug Enforcement Administration and
Pennsylvania State Police initiated an investigation into

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cocaine trafficking in Luzerne County, Pennsylvania.
Drozdowski was identified as a distributor of cocaine who
had been operating, with the assistance of his wife and
other family members, since 1988. According to the
evidence, Drozdowski’s mother-in-law stored the cocaine at
her house and, unbeknownst to his father, Drozdowski
kept the proceeds from his business at his father’s house.
On several occasions in 1999, a confidential informant
bought cocaine from Drozdowski at his home. In addition,
the police kept Drozdowski under surveillance and
monitored several phone calls in which Drozdowski
arranged for the sale of cocaine. Drozdowski and his
associates were arrested in August 1999 and the police
executed search warrants at various locations, including
the home of Drozdowski’s father.

At trial, Trooper Jeffrey McGinness described the search
of Drozdowski’s father’s home. The search turned up two
revolvers: a .44 caliber and a .22 caliber. Neither of the
guns was loaded, although the .44 caliber was stored in a
leather case that also contained rounds for the pistol.
Trooper McGinness found both weapons underneath a desk
in a bedroom on the second floor of the house. In addition
to the guns, the Trooper seized more than $31,000 in cash
from a dresser in a second floor hallway and from another
dresser in the bedroom where the guns were found. The
police also discovered 1.2 grams of a chemical called
"Inositol," which in the Trooper’s experience is often used
as a cutting agent. In the bedroom where the guns were
discovered, the police found a box containing a large
number of plastic, zip-lock bags. Finally, the police
uncovered what Trooper McGinness described as "owe
sheets": lists which are used to record money owed on drug
transactions. On cross-examination, McGinness testified
that the owe sheets appeared to be "older." The search did
not uncover any drugs in the house.
As suggested above, the condition of the rooms in which
the police found the guns is critical to our inquiry. The
Trooper testified that the "upstairs bedrooms were piled
with boxes, clothes, all types of items." App. at 197. When
McGinness entered the room where he found the guns, he
saw a "portion of [a] desk sticking out from the wall." Id. at

                                3


198. This was the desk under which he discovered the
guns. When asked "[h]ow much of this stuff did you have
to move to get to this desk in the first place," the Trooper
stated that "I believe some of the top and a part of the right
side I could see and get to, but everything else there was
stuff piled on top and in front of the desk." Id. In response
to the question "you had to move a lot of stuff just to get
to this [desk] in the first place," the Trooper testified that

       There was sort of a walkway into the room where you
       could actually walk in where the stuff was piled so you
       could actually -- you may be able to get to the back
       closet and, like I said, is [sic] desk right on the right
       when you walk in, so I had to move some of the stuff
       from like underneath it and some of the things on top
       so it didn’t fall on me while I was searching.

Id. Mindful of the adage that "a picture is worth a
thousand words," we attach two photographs of the
bedroom and the area around the desk where the guns
were found. To those of the opinion writer’s vintage, the
quantity of junk in this room brings to mind what fell out
of Fibber McGee’s closet.1 Counsel for Drozdowski asked
Trooper McGinness whether it was accurate to state that
"to get at these guns . . . you couldn’t just reach right in
there and pull them out, you had to get this stuff out of the
way" and the Trooper responded "[t]hat’s correct." Id. at
199.

Drozdowski was found guilty of conspiracy to distribute
and possess with intent to distribute in excess of five
kilograms of cocaine in violation of 21 U.S.C. S 486,
possession with intent to distribute cocaine in violation of
21 U.S.C S 841(a)(1), and use of a communication facility in
_________________________________________________________________

1. For those not of the writer’s vintage, our reference is to the widely
popular Fibber McGee and Molly radio show, which ran on NBC from
1935-1959. One of the show’s standing gags involved the hall closet of
the stars’ 79 Wistful Vista residence. In searching for some lost object,
Fibber would inevitably determine that it was to be found in the hall
closet. Despite warnings from Molly, Fibber would open the door, only to
be showered in junk from the perpetually overstuffed closet. Fibber
would then famously declare, "gotta clean out that closet one of these
days."

                                4
the distribution of a controlled substance in violation of 21
U.S.C. S 843(b). He was sentenced to a total of 292 months
in prison.

The District Court had jurisdiction under 18 U.S.C.
S 3231 and this Court has jurisdiction pursuant to 28
U.S.C. S 1291 and 18 U.S.C. S 3742. As the District Court’s
decision to apply the enhancement was essentially factual,
we review for clear error. U.S. v. Isaza-Zapata , 148 F. 3d
236, 237 ( 3d Cir. 1998).

II.

Drozdowski argues that it was clearly improbable that
the weapons the police found in his father’s house were
connected with the conspiracy to distribute cocaine. He
bases his argument on the idea that because the guns were
unloaded and buried under boxes and assorted bric-a-brac,
they were inaccessible, and therefore it is clearly
improbable that they were being used in connection with
the conspiracy. Drozdowski also points to the facts that the
guns were not found at his residence, they were not
registered to him, and no drugs were discovered near the
guns. The Guidelines do not give much guidance as to what
constitutes "clearly improbable." The only light they shed
on this issue is that the enhancement would not be merited
if "the defendant, arrested at his residence, had an
unloaded hunting rifle in the closet." Note (3) of the
Commentary to S 2D1.1(b)(1).

It appears that defendants have rarely been able to
overcome the "clearly improbable" hurdle. Although one
court has characterized the jurisprudence as having
generally limited absolution from the guidelines to cases
"involving facts nearly identical to those of the hypothetical
[unloaded rifle in closet]," United States v. Garcia, 925 F. 2d
170, 173 (7th Cir. 1991), it is our view that the Note (3)
example is not meant to be exclusive.

Courts have relied on a number of variables in making
the "clearly improbable" determination, including: (1) the
type of gun involved, with clear improbability less likely
with handguns than with hunting rifles, see United States
v. Cantero, 995 F. 2d 1407, 1411 (7th Cir. 1993) (noting

                                5


that the handgun "is a ‘tool of the [drug] trade’ because it
is easy to conceal yet deadly") (quoting United States v.
Valencia, 913 F. 2d 378, 385 (7th Cir. 1990)); United States
v. Green, 889 F. 2d 187, 189 (8th Cir. 1989)("Unlike the
rifle in the hypothetical, however, [hand]guns like Green’s
are used only for personal protection"); (2) whether the gun
was loaded, see United States v. North, 900 F. 2d 131, 134-
35 (8th Cir. 1990) (clearly improbable that unloaded
shotgun owned by defendant’s son was used in drug
conspiracy); Green, 889 F. 2d at 187-89 (not clearly
improbable that unloaded handgun was used in connection
with drug offense); (3) whether the gun was stored near the
drugs or drug paraphernalia, see United States v. Williams,
10 F. 3d 590, 596 (8th Cir. 1993) (enhancement upheld
when "firearm was loaded and found in close proximity to
the cocaine, currency and drug paraphernalia"); United
States v. Eastland, 989 F. 2d 760, 770 (5th Cir. 1993)
(enhancement upheld where "methamphetamine, currency,
and paraphernalia" were present where the guns were
found); and (4), most relevant to our inquiry here, whether
the gun was accessible.

Despite the condition of the room in which the police
found the guns, as described above, we find that it was not
clearly improbable that these guns were connected to
Drozdowski’s cocaine distribution conspiracy. We come to
this conclusion on the basis of a number of considerations.
First, while the bedroom in which the trooper uncovered
the weapons contained a great deal of junk, which took
some time to move, the desk under which the guns were
stored was "right on the right when you walk in[to]" the
room and was not completely blocked. App. at 198. As the
attached photographs show, the junk itself does not appear
to have been heavy or difficult to move, and Trooper
McGinness was able to find the guns under the desk
relatively quickly. Clearly, the guns would have been much
more accessible to one who already knew where they were
located.

We also note that while there were no drugs in the house
where the guns were found, there was a great deal of drug
paraphernalia. Specifically, the room where the police
discovered the guns contained the Inositol and the"owe

                                6


sheets," both of which were in the drawers of the desk
itself, a large number of zip-lock bags, and a significant
amount of cash. All of these items were within steps of the
concealed guns. In addition, this conspiracy lasted several
years and we are convinced that it is not clearly improbable
that at some point during those years, these guns, found so
close to the drug money and the owe sheets, were used in
conjunction with the drug activity.

Ultimately, the question of whether it is clearly
improbable that a gun was used in connection with a drug
offense is a fact-bound determination. Applying the
principles derived from the cases discussed above, we
cannot say, in the circumstances of this case, that it was
clearly improbable that the defendant used these two
handguns in connection with his cocaine trafficking
conspiracy.2 First, both guns were handguns, which are
more likely to be used in connection with a drug offense
than long, hunting guns; second, while the guns were
unloaded, the .44 was stored in a case with its
ammunition; third, the guns were stored in close proximity
to currency and drug paraphernalia; and fourth, while the
weapons were stored under a pile of assorted junk, they
were not so inaccessible as to make it clearly improbable
that they had been used in connection with Drozdowski’s
drug offense.

We are buttressed in this last conclusion by cases from
a number of other Courts of Appeals that have rejected an
argument that because a gun was not immediately
accessible, it was clearly improbable that the weapon was
being used in conjunction with a drug offense. For example,
in United States v. Durrive, 902 F. 2d 1221 (7th Cir. 1990)
the Seventh Circuit upheld a two-level weapons
enhancement in a case in which the loaded weapon was
stored in a closet, a location the court described as
"inaccessible to strangers and casual visitors but readily
_________________________________________________________________

2. We would not go so far as to say that inaccessibility is never enough
to show that it is clearly improbable that a weapon is being used in
conjunction with a drug crime. A truly inaccessible weapon, especially
one not stored near any drug paraphernalia, would present a different
case from the one before us.

                                7


accessible to [the defendant]." Id. at 1232. In United States
v. Ewing, 979 F. 2d 1234 (7th Cir. 1992), the court upheld
a weapons enhancement for a defendant who kept a pistol
inside a locked box, along with his wallet, a quantity of
cocaine, and notebooks recording drug transactions. The
defendant had the key to the box in his pocket when he
was arrested. The court affirmed the weapons enhancement
despite the fact that the gun was unloaded and stored in
the locked box. Id. at 1238. Similarly, in United States v.
McGhee, 882 F. 2d 1095 (6th Cir. 1989), a search of the
defendant’s house uncovered eight rifles hidden in a secret
compartment in the floor under the living room couch, six
handguns in a secret compartment in the living room wall,
and a .38 caliber pistol in a safe in the bedroom. The court
held that while the defendant’s firearms "were hidden in
such a way as to be inaccessible to a stranger or casual
visitor, they would be readily accessible to anyone who
knew their location." Id. at 1099.

Because we find that it was not clearly improbable that
the guns the police discovered at Drozdowski’s father’s
house were connected with the drug activity, we affirm the
District Court’s application of the two-level enhancement
pursuant to U.S.S.G. S 2D1.1.(b)(1). As we find no other
error, the judgment of the District Court will be affirmed.3
_________________________________________________________________

3. In addition to the S 2D1.1.(b)(1) issue, Drozdowski raises a number of
other arguments on appeal, none of which has any merit.

First, Drozdowski asserts that the District Court erred by allowing into
evidence statements made by Jose "Pete" Hidalgo, arguing that the
statements were inadmissible hearsay and that they violated
Drozdowski’s Sixth Amendment right to confront witnesses. Hidalgo had
been indicted in the same conspiracy as Drozdowski and the
Government’s evidence had shown that Hidalgo had supplied cocaine to
Drozdowski on several occasions. Hidalgo fled before his trial. There are
four statements at issue: (1) statements made during a telephone call
between Hidalgo and Drozdowski on July 25, 1999; (2) statements made
to Trooper James Hischar during a traffic stop on July 27, 1999; (3)
statements made by Hidalgo while recording a message on the
defendant’s answering machine on July 27, 1999; and (4) statements
made during a telephone conversation with Drozdowski on July 27,
1999. We review for clear error, United States v. Vega, 285 F. 3d 256,
264 (3rd Cir. 2002).

                                8



_________________________________________________________________

Drozdowski urges that Hidalgo’s statements do not qualify for a
hearsay exception under Federal Rule of Evidence 801(d)(2)(E) because
there was no evidence that they were made during or in furtherance of
the conspiracy to sell cocaine. F.R.E. 801(d)(2)(E) provides that "a
statement by a co-conspirator of a party during the course of the
conspiracy" is not hearsay as to that party if four requirements are met:
"(1) that a conspiracy existed; (2) the declarant and the party against
whom the statement is offered were members of the conspiracy; (3) the
statement was made in the course of the conspiracy; and (4) the
statement was made in furtherance of the conspiracy. The district court
must be able to find these requirements by a preponderance of the
evidence." United States v. McGlory, 968 F. 2d 309, 333 (3d Cir. 1992),
(citing Bourjaily v. United States, 483 U.S. 171, 175 (1987)). Because we
are satisfied that all of the statements at issue were made both during
and in furtherance of the conspiracy, we agree with the District Court
that Hidalgo’s statements qualify for a hearsay exception under F.R.E.
801(d)(2)(E). The Government was able to show, by a preponderance of
the evidence, that (1) the July 25, 1999 phone call was used to set up
a meeting at which Drozdowski would give Hidalgo money with which to
purchase cocaine; that (2) Hidalgo’s statements to Trooper Hischar after
he had been pulled over, including that the cash he was carrying was
the proceeds from the sale of a car, were an effort to cover up the
conspiracy; and that (3) the last two phone calls were to inform
Drozdowski that the money had been seized and to concoct a plan to get
the money back.

We also reject the contention that the admission of Hidalgo’s
statements violated the Confrontation Clause of the Sixth Amendment of
the U.S. Constitution. The Supreme Court has made it clear that co-
conspirator declarations admissible under F.R.E. 801(d)(2)(E) do not
violate the Confrontation Clause. Bourjaily 483 U.S. at 182-83.
Therefore, the District Court did not err in admitting Hidalgo’s
statements into evidence.

Second, we find no merit in Drozdowski’s contention that the District
Court abused its discretion by refusing to give the"absent witness"
charge he requested. The "absent witness" jury instruction is to be given
in a case where the government fails to produce evidence, and the
instruction tells the jury that the failure to produce this evidence creates
a presumption that the evidence would be favorable to the defendant.
See Graves v. United States, 150 U.S. 118, 120-21 (1893). Drozdowski
asked for this instruction in relation to Jose Hidalgo, who was also
indicted in the conspiracy, but had been released on bail, cut off his
surveillance bracelet, and fled. A defendant is entitled to an absent
                                9


witness instruction when the testimony of a witness can only be
produced by the Government. United States v. Luvene, 245 F.3d 651,
655 (8th Cir. 2001). Here, however, the Government could not produce
Hidalgo: an active investigation by the U.S. Marshal’s service had been
unsuccessful in bringing him in. Because neither party could produce
Hidalgo, an absent witness instruction was inappropriate.

Third, Drozdowski’s argument that the District Judge erred in his jury
instructions by stating that the defendant had an obligation to testify
has no merit: Judge Kosik gave a correct instruction. Drozdowski
asserted that the Judge instructed the jury that"the Defendant did not
elect to testify, and the Defendant didn’t testimony (sic), and under our
Constitution, the Defendant has an obligation to testify."(emphasis in
original.) Appellant’s Brief at 26-27. The Government urged that the
Judge actually instructed the jury that "the Defendant did not elect to
testify, and the Defendant didn’t testify, and under our Constitution the
defendant has no obligation to testify or to present any other evidence.
. . ." (emphasis in original) Appellee’s Brief at 24. The audiotape of the
charge bears out the Government’s version and also shows that Judge
Kosik went on to admonish the jury in some detail that Drozdowski’s
choice not to testify could not be held against him.

Finally, we disagree with Drozdowski’s argument that the District
Court erred in declining to depart downward under 18 U.S.C. S 3553(b)
and U.S.S.G. S 5K.0 when the disparity between Drozdowski’s sentence
and those of his co-defendants was due to allegedly improper charging
decisions by the Government. Drozdowski relies heavily on United States
v. Contreras-Gomez, 991 F. Supp. 1242 (E.D. Wash. 1998), for the
proposition that the Government’s conduct in negotiating pleas may in
some circumstances amount to improper sentencing manipulation and
in such a situation a downward departure is warranted. Contreras-
Gomez was a very different case from this one, however. In that case, the
defendant was charged under 8 U.S.C. S 1362(b), which carries a
maximum penalty of 20 years, while every other similarly situated
defendant was charged under S 1362(b)(1), which caps the sentence at
two years. Here, the government charged most of the co-defendants with
the same offense as the defendant: conspiracy to distribute and possess
with intent to distribute in excess of 5 kilograms of cocaine. While
Drozdowski’s co-conspirators pled to lesser amounts of cocaine than
Drozdowski was charged with, and some were not assessed additional
offense levels for a leadership role in the conspiracy, or for use of a gun,
none of this requires a downward departure.

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A True Copy:
Teste:

       Clerk of the United States Court of Appeals
       for the Third Circuit

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