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UNITED STATES v. JENKINS

July 24, 1998

UNITED STATES OF AMERICA
v.
WILLIAM R. JENKINS, Defendant



The opinion of the court was delivered by: NEALON

MEMORANDUM and ORDER

 Defendant, William R. Jenkins, was indicted in an eleven count indictment *fn1" and, after a jury trial, was found guilty on all counts except Count Nine which accused him of possessing thirteen machine guns in violation of 18 U.S.C. § 922(o). While the jury was deliberating, it was discovered that, in Count Eight of the indictment charging defendant with possession of firearms by a convicted felon, 18 U.S.C. § 922(g)(1), an improper reference was made of the felony itself, viz., 2nd degree murder. The jury was allowed to continue with its deliberations and returned the verdict as hereinabove described. Immediately thereafter, the court conducted an individualized voir dire and, after concluding that there was no prejudice to defendant because of the improper disclosure, the verdicts were received and entered. Defendant has filed posttrial motions for a judgment of acquittal on Count Four and for a new trial on the remaining counts. The motions have been fully briefed and are before the court for disposition. As explained hereafter, the motions will be denied.

 I.

 MOTION FOR JUDGMENT OF ACQUITTAL

 Defendant contends that the evidence at trial was insufficient as to Count Four to sustain a conviction under 18 U.S.C. 924(c)(1) which provides for additional penalties if the defendant "during and in relation to any crime of violence or drug trafficking crime, uses or carries a firearm." He concedes that, in certain circumstances, the exchange of a firearm for a controlled substance may constitute "use" of a firearm "during and in relation to a drug trafficking crime," Smith v. United States, 508 U.S. 223, 113 S. Ct. 2050, 124 L. Ed. 2d 138 (1993), but maintains that, in this case, the evidence was insufficient to show that the firearm was an operative factor in relation to the offense. Bailey v. United States, 516 U.S. 137, 116 S. Ct. 501, 133 L. Ed. 2d 472 (1995). However, interpreting the evidence in the light most favorable to the government, as we are required to do in deciding a motion for judgment of acquittal, See, United States v. McNeill, 887 F.2d 448 (3d Cir. 1989), cert. denied, 493 U.S. 1087; 110 S. Ct. 1152, 107 L. Ed. 2d 1055 (1990), leads to the conclusion that the machine guns were used to pay off a marijuana debt and to induce a co-conspirator, "G" *fn2" , to make another marijuana shipment from Arizona to the defendant in Pennsylvania. It should be noted also that defendant was charged in Count Four, not only as a principal, but also as an aider and abettor.

 David Sauve testified that he had participated in a drug conspiracy with defendant and "G" for a number of years and that marijuana was mailed by "G" to defendant on a bi-monthly basis. *fn3" Further, that Sauve received part of these shipments which he, in turn, sold to his customers. He stated that defendant, when he gave Sauve the machine guns in August, 1992, said "here, take these to "G"." When asked what defendant told him as to why he was sending these weapons to "G", Sauve responded "to pay off part of the bill he owed 'G', but as to, exactly, how much, I'm unaware." When he delivered the guns to "G", in Arizona, he was told by "G" to tell defendant "to expect a shipment." A shipment of marijuana was mailed from Tucson, Arizona *fn4" , on October 5, 1992, to defendant's brother, Glenn Jenkins, P.O. Box No. 492, Canadensis, Pa., who testified that defendant had previously asked him to allow defendant to use his post office box to accept delivery of a marijuana shipment from "G", and that defendant promised to pay him $ 1,600.00 for using his box. Later, he received a call from defendant to pick up a package at his Post Office box and, when he did, he was promptly arrested by postal authorities. The package contained approximately nine (9) pounds of marijuana. Additionally, another of defendant's brothers, Jake Jenkins, testified that defendant told him, immediately after Sauve returned from Arizona, that he had paid off his debt to "G" with machine guns.

 "A defendant challenging the sufficiency of the evidence bears a heavy burden." United States v. Casper, 956 F.2d 416, 421 (3d Cir. 1992). "Only when the record contains no evidence from which the jury could find guilt beyond a reasonable doubt, may the verdict be overturned." McNeill, 887 F.2d at 451. The trial court must uphold the jury's verdict unless no rational jury could have concluded beyond a reasonable doubt that the defendant committed the crime. United States v. Ashfield, 735 F.2d 101 (3d Cir. 1984). The evidence presented here was more than sufficient to show that the delivery of these firearms was directly related to past, present, and future drug transactions. The motion is without merit.

 II.

 Count Eight of the Indictment, charged defendant with possession of firearms after having been convicted of a crime punishable by imprisonment for a term exceeding one year, to wit: "second degree murder." Prior to trial, it was stipulated that the reference to Murder in the Second Degree be redacted. See, Old Chief v. United States, 519 U.S. 172, 117 S. Ct. 644, 136 L. Ed. 2d 574 (1997). Unfortunately, redaction did not occur and the Indictment went out with the jury when deliberations commenced. *fn5" After the jury had requested a clarification of the instruction on aiding and abetting, defense counsel inquired whether redaction of the Indictment had actually taken place. At the court's request, the Courtroom Deputy entered the jury room and retrieved the Indictment which revealed the failure to delete. The redaction was made and the Indictment was resubmitted to the jury. Shortly thereafter, the jury delivered the following note to the Court:

 
"Dear Judge Nealon:
 
We are aware of the omission that was made in Count Eight of the Indictment (the second degree murder conviction). We do, however, feel that this information will not cloud or sway our decision, several of which had been made before the time we were made aware of this.
 
Susan Lloyd."

 Defense counsel immediately moved for a mistrial which was denied inasmuch as a defense challenge would be moot if the jury returned not guilty verdicts on each Count. After further deliberation, the jury returned its verdict of guilty on Counts One through Eight, not guilty on Count Nine, and guilty on Counts Ten and Eleven.

 After reading the verdict, the court explained to the jury that an individual voir dire would have to be conducted because of the reference in the Indictment to the prior conviction of 2nd degree murder. At that time, all were directed not to discuss anything about the case in the jury room while awaiting their turns to appear in chambers and, after being questioned, each juror was instructed not to discuss their individual voir dire appearances with each other. During the voir dire, all jurors stated that verdicts of guilty had been reached on Counts Two and Three before ...


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