
USCA1 Opinion

	




                            UNITED STATES COURT OF APPEALS                                FOR THE FIRST CIRCUIT                                                                                      ____________________        No. 94-1789                              UNITED STATES OF AMERICA,                                      Appellee,                                          v.                                    MICHAEL CRASS,                                Defendant, Appellant.                                                                                      ____________________                     APPEAL FROM THE UNITED STATES DISTRICT COURT                           FOR THE DISTRICT OF RHODE ISLAND                    [Hon. Ronald R. Lagueux, U.S. District Judge]                                             ___________________                                                                                      ____________________                               Torruella, Chief Judge,                                          ___________                            Aldrich, Senior Circuit Judge,                                     ____________________                               and Cyr, Circuit Judge.                                        _____________                                                                                      ____________________             Edward C. Roy, with whom Roy & Cook was on brief for appellant.             _____________            __________             Zechariah Chafee,  Assistant  United States  Attorney, with  whom             ________________        Sheldon Whitehouse, United States Attorney, was on brief for appellee.        __________________                                                                                      ____________________                                    March 24, 1995                                                                                      ____________________                    CYR, Circuit Judge.  Appellant Michael Crass challenges                    CYR, Circuit Judge.                         _____________          his conviction and  sentence for  using a firearm  during and  in          relation to  a  drug trafficking  crime.   See  18 U.S.C.     924                                                     ___          (c)(1).  Finding no error, we affirm.                    On  June  4,  1993,  the  Providence  Police Department          executed a search warrant  at the Crass apartment and  discovered          marijuana  and  cocaine  throughout.1   On  a  closet shelf,  the          police  found  seventeen  baggies  of cocaine  and  two  pistols.          Although  the  hand grip  on one  firearm  was broken,  both were          loaded  and operable.    The  putative  owner testified  for  the          defense  that he  had left  one unloaded  firearm with  Crass for          repair six months prior  to the search,  and the other for  safe-          keeping a week before the search.                     Crass first challenges the sufficiency of the evidence,          which  we  review in  the light  most  favorable to  the verdict.          United States  v. Cotto-Aponte, 30  F.3d 4,  5  (1st  Cir. 1994).          _____________     ____________          Notwithstanding  their proximity  to the  baggies of  cocaine, he          contends on appeal, as he  did below, that the firearms  were not          used  during and in relation  to a drug  trafficking crime within          the meaning  of 18 U.S.C.   924(c)(1).   He principally relies on          United States v. Bruce, 939 F.2d  1053 (D.C. Cir. 1991), for  the          _____________    _____          claim  that there  was insufficient  evidence of  a "facilitative          nexus," see United States  v. Paulino, 13  F.3d 20, 26 (1st  Cir.                  ___ _____________     _______                                        ____________________               1Crass pled guilty to  three drug trafficking offenses based          on the evidence seized from his apartment.                                          2          1994), between the firearms  and the drugs found in  the closet.2                    Under  our  "facilitative nexus"  test, a  section 924-          (c)(1) conviction may lie even though the evidence establishes no          more than that  a firearm served a passive purpose  during and in                                             _______          relation to  the commission of  a drug crime,  as by  affording a          means  of safeguarding  drugs  possessed for  distribution.   The          close  proximity  between the  firearms  and  the cocaine  seized          inside  the same closet enabled the jury reasonably to infer that          Crass  kept  the firearms  for  the purpose  of  safeguarding the          cocaine,  see United States v.  Bergodere, 40 F.3d  512, 519 (1st                    ___ _____________     _________          Cir.  1994),  clearly  establishing the  necessary  "facilitative          nexus."  See Smith v. United States, 113 S. Ct. 2050 (1993).                   ___ _____    _____________                    Second, Crass claims surprise and prejudice from police          testimony concerning  the street value  of the cocaine  seized in          the search.  At a pretrial  hearing on his request for disclosure          of expert testimony to  be presented by the government,  see Fed.                                                                   ___          R. Crim.  P. 16(a)(1)(E), Crass  sought to ascertain  whether the          government  intended  to  have  "police officers  com[e]  in  and          testify[] about giving  opinions about  the use of  the guns  and                                                  ___ ___ __  ___ ____          being  consistent with their experience and  that kind of thing."          (emphasis added).  The government disavowed any such intention.                                         ____________________               2Neither party noted that Bruce had been overruled in United                                         _____                       ______          States v. Bailey,  36 F.3d 106,  115 (D.C. Cir.  1994) (en  banc)          ______    ______          (Ginsburg, J.), cert. denied, 63 U.S.L.W. 3642 (U.S. 1995), which                          ____  ______          explicitly adopted our "facilitative nexus" test.                                            3                    At trial,  the government  presented a  narcotics offi-          cer's testimony on  the current  street value of  the seized  co-          caine,  for the purpose of establishing  that Crass possessed the          firearms as a means of safeguarding the valuable cocaine stash he          kept in the  apartment.  Crass later urged the  district court to          exclude  the  testimony  because it  had  not  been  disclosed in          response to  the Rule 16 motion.   The court declined.   It ruled          that the  testimony did  not come within  the pretrial  discovery          request, that it was on the cusp of fact and expert testimony and          that  defense counsel  would be  allowed to  "cross-examine about          [the  expert witness's] experience in this area and what he knows          about street prices of drugs."          The   duty  to   disclose          under Rule 16 is triggered by a proper request.  United States v.                                                           _____________          Carrasquillo-Plaza,  873 F.2d 10, 12  (1st Cir. 1989).   The dis-          __________________          trict  court  supportably  ruled,  inter alia,  that  the  police                                             _____ ____          testimony proffered by  the government  did not  come within  the          pretrial  motion submitted  by the  defense, because  it directly          related to  the street value of  the seized drugs  and only indi-          rectly to  the purpose for which  Crass kept the guns.   Yet more          importantly, the  defense  neither  requested  a  continuance  to          obtain its own evidence on street drug prices, nor does it allege                                                                     ______          prejudice.  Even on appeal Crass makes  no claim that the "street          price" for cocaine in Providence was different than the narcotics          officer  stated.  See United  States v. Sepulveda,  15 F.3d 1161,                            ___ ______________    _________          1178 (1st Cir. 1993) ("The lack  of demonstrable prejudice sounds                                          4          the death knell  for a  'delayed discovery' claim.").   Thus,  we          find neither error nor prejudice.                      Third, Crass claims that he was entitled to a two-point          downward adjustment for acceptance of responsibility  pursuant to          U.S.S.G.   3E1.1.  The defendant  bears the burden of proof under          section 3E1.1 and we review the sentencing court ruling for clear          error.   United  States v.  Morillo, 8  F.3d  864, 871  (1st Cir.                   ______________     _______          1993).         Although  Crass  acknowledges that  the Sentencing          Guidelines generally  preclude a  downward adjustment  for accep-          tance of responsibility where  the defendant "puts the government          to its burden of proof at trial  by denying the essential factual          elements of guilt, is  convicted, and only then admits  guilt and          expresses  remorse," U.S.S.G.    3E1.1 (n.2),  he argues  that he          fits within an exception to the general rule.                    In  rare situations  a defendant  may clearly                    demonstrate  an acceptance  of responsibility                    for his criminal conduct even though he exer-                    cises  his constitutional  right to  a trial.                    This may occur,  for example, where a  defen-                    dant  goes to  trial to  assert  and preserve                    issues  that do not  relate to  factual guilt                    (e.g. to make a constitutional challenge to a                    statute or a  challenge to the  applicability                    of a statute to his conduct.)          Id.  Crass contends  that he qualified for a  downward adjustment          ___          for  acceptance of responsibility  notwithstanding the  fact that          the defense  represented, both at  trial and at  sentencing, that          the firearms were in  no respect related to the  drug trafficking          offenses to which he had pled guilty.                    The district  court correctly instructed the  jury that          Crass could be convicted  only if he possessed the  firearms with                                                                       ____                                          5          intent to  facilitate drug trafficking.  United  States v. Reyes-          ______ __  __________                    ______________    ______          Mercado, 22 F.3d 363, 367 (1st Cir. 1994) (defendant must possess          _______          firearm with intent that it be "available for possible use during          or immediately following the  transaction, or [to facilitate] the          transaction by lending courage to the possessor.").  In an effort          to  blunt  the  government's case  on  the  essential  element of          intent, the defense  called the putative  owner of the  firearms,          who testified that he had delivered  them to Crass for repair and          safekeeping.   Further, defense  counsel urged  the jury  to find          that the firearms were not possessed with intent to safeguard the                                                    ______          drugs.                    Thus,  as was  his right,  Crass contested  the central          factual  element of intent both at trial  and at sentencing.  But          _______             ______          the jury could  not have  convicted Crass on  the firearm  charge          without  first  rejecting the  claim that  he  did not  intend to          possess the firearms for  the purpose of safeguarding  the drugs.          See  id.  Except in extraordinary circumstances not present here,          ___  __          see  U.S.S.G.   3E1.1  (n.2),  intent, like  any other  essential          ___                            ______          element of the crime charged, may  not be contested by the defen-          dant without jeopardizing  a downward adjustment  for "acceptance          of responsibility" in the event the sentencing court  rejects, as          did  the jury,  the  defendant's interpretation  of the  relevant          evidence.  See United  States v. Bennett,  37 F.3d 687, 697  (1st                     ___ ______________    _______          Cir.  1994).  The district  court ruling was  consistent with the          law and the evidence.                    Affirmed.                        Affirmed.                    ________                                          6
