United States District Court, Western District of Pennsylvania
February 12, 2002
UNITED STATES OF AMERICA,
The opinion of the court was delivered by: Lancaster, District Judge.
On July 25, 2001, a federal grand jury returned a multi-count
indictment against defendant, William Yednak, including two
counts of possession of a firearm by a convicted felon in
violation of 18 U.S.C. § 922(g)(1) (Counts Nine and Twelve) and
one count of carrying a firearm during and in relation to a
drug-trafficking crime in violation of 18 U.S.C. § 924(c)(1)
(Count Ten). At a hearing held on November 30, 2001, Yednak
changed his initial plea of not guilty and, pursuant to a plea
agreement, entered a plea of guilty to seven counts of the
indictment, including Counts Nine, Ten, and Twelve.
At the November 30 hearing, the court expressed concern over
whether there was an adequate factual basis to support the
guilty plea as to Counts Nine, Ten and Twelve. Consequently, the
court accepted the guilty plea conditional upon the court's
satisfactory resolution of two outstanding issues: (1) whether
conviction on both Counts Nine and Twelve, possession of a
firearm by a convicted felon, would constitute two convictions
for the same crime in violation of the double jeopardy clause of
the Fifth Amendment to the United States Constitution and (2)
whether there was an adequate factual basis to support Yednak's
plea of guilty to carrying a firearm during and in relation to a
drug-trafficking crime — Count Ten.
After taking the matter under advisement and, for the reasons
that follow, the court will not accept Yednak's guilty plea as
to Counts Nine, Ten, and Twelve and will reject the plea
agreement between the government and Yednak in its entirety.
At the November 30, 2001 hearing, the government made the
following proffer as to the factual predicate for Counts Nine,
Ten, and Twelve of the indictment.
Regarding Counts Nine and Twelve, possession of a firearm by a
convicted felon, the government stated that it would show that
on May 7, 2001, another defendant in this case, Lara Casaldi,
went to a pawn shop at Yednak's insistence and acquired a
chrome-plated, black-handled, Smith & Wesson 9 millimeter
handgun for Yednak's use. Thereafter, the gun was in Yednak's
On May 10, 2001, a PNC Bank branch was robbed by a masked
robber brandishing what appeared to be a real weapon. The
government stated that this gun had the appearance of the gun
purchased by Casaldi for use by Yednak. Casaldi would testify at
trial that the bank robber was Yednak's brother, defendant
Patrick Yednak, and that William Yednak aided and abetted
Patrick in that robbery. William
Yednak was prohibited from possessing firearm due to previous
felony convictions This conduct is the basis of the first coun
of possession — Count Nine.
At approximately 1:00 a.m. the next day May 11, 2001, the
police stopped Casaldi's car, which was used in the PNC Bank
robbery. William Yednak was driving, Ca saldi was in the front
seat, and a third individual was in the back seat. The police
found the 9-millimeter handgun purchased from the pawnshop under
the seat of the vehicle. This is the factual basis underlying
the second count of possession — Count Twelve.
Regarding Count Ten, carrying a firearm during and in relation
to a drugtrafficking crime and/or possession of a firearm in
furtherance of a drug-trafficking crime, the government stated
as follows. When the police stopped Casaldi's vehicle on May 11,
2001, they found a small quantity of cocaine and less than 100
grams of heroin within Yednak's possession and control. As set
forth above, the 9-millimeter handgun was found under the seat.
The government stated that after the May 10, 2001 PNC Bank
robbery, Yednak and Casaldi took the gun to Duquesne,
Pennsylvania, to meet with the drug supplier who supplied them
with the heroin and cocaine. They returned to Yednak's residence
in McKeesport, Pennsylvania and stayed there until the early
hours of May 11 when they agreed to give a third person a ride
to housing projects in another neighborhood in McKeesport. At
this time, Yednak had the heroin and the 9-millimeter handgun in
his possession. According to the government, Yednak took the gun
with him because he was going to what he considered to be a
dangerous neighborhood while in possession of heroin.
When asked by the court, Yednak stated that he agreed with the
government's summary of what he did.
The court questions whether there is an adequate factual basis
to support Yednak's plea of guilty as to two counts of
possession of a firearm by a convicted felon (Counts Nine and
Twelve) and one count of carrying a firearm during and in
relation to a drug-trafficking crime and/or possession of a
firearm in furtherance of a drug-trafficking crime (Count Ten).
Upon consideration of the record, arguments of counsel, and
applicable law, the court is not satisfied that Yednak's guilty
plea as to these counts is supported by the facts and,
therefore, rejects the plea.
It is well-settled that a criminal defendant "`does not have
an absolute right under the Constitution to have his guilty plea
accepted by the court.'" United States v. Hecht, 638 F.2d 651,
653 (3d Cir. 1981) (quoting North Carolina v. Alford,
400 U.S. 25, 38 n. 11, 91 S.Ct. 160, 27 L.Ed.2d 162 (1970)); see also
Santobello v. New York, 404 U.S. 257, 262, 92 S.Ct. 495, 30
L.Ed.2d 427 (1971). In this regard, Fed.R.Crim.P. 11(f) directs
Notwithstanding the acceptance of a plea of guilty,
the court should not enter a judgment upon such plea
without making such inquiry as shall satisfy it that
there is a factual basis for the plea.
Fed.R.Crim.P. 11(f). In obedience to Rule 11, the Court of
Appeals for the Third Circuit has held that "where the factual
basis for a guilty plea is seriously undermined, a trial judge
may set aside that plea without the consent of the accused, and
furthermore require the accused to stand trial." Hecht, 638
F.2d at 653.
Whether to accept or reject a plea of guilty is within the
court's discretion. Id. at 656; see also Santobello, 404
262, 92 S.Ct. 495. The court, however, must exercise such
discretion "in relation to the composite of factors which
constitute the case." Hecht, 638 F.2d at 656.
With these principles in mind, we address each of the crimes
at issue in turn.
A. Counts Nine and Twelve: Possession of a Firearm by a
18 U.S.C. § 922(g)(1) makes it unlawful for a convicted felon
to possess a firearm. Yednak, a convicted felon within the
meaning of the statute, was indicted under this provision for
possessing the same handgun on two consecutive days, May 10 and
May 11, 2001. The issue is whether these two instances of
possession of the same firearm were separate criminal acts.
Although the Court of Appeals for the Third Circuit has not
addressed this precise question, other courts of appeals have
held that "possession" under this statute is a "course of
conduct" and that "by prohibiting possession Congress intended
to punish as one offense all of the acts of dominion which
demonstrate a continuing possessory interest in a firearm."
United States v. Jones, 533 F.2d 1387, 1391 (6th Cir. 1976)
(emphasis added); see also United States v. Horodner,
993 F.2d 191, 193 (9th Cir. 1993) (same); United States v. Rivera,
77 F.3d 1348, 1351 (11th Cir. 1996) (per curiam) (same). Therefore,
"[w]here there is no proof that possession of the same weapon is
interrupted, the Government may not arbitrarily carve a
possession into separate offenses." Rivera, 77 F.3d at 1351.
Indeed, to do so "would result in a multiplicitous indictment,
creating the risk of multiple convictions and punishments for a
single offense in violation of the Double Jeopardy Clause."
Id. at 1352.
In United States v. Jones, for example, Jones was charged
with three separate counts of unlawful possession of a firearm
based on the following three events: he purchased a revolver in
1970; in March, 1973, police officers conducting a driver's
license check stopped Jones in his vehicle and saw the same
revolver lying on the seat beside him; and in December, 1973,
police officers executing a search warrant in Jones' store asked
Jones where his gun was, and he told them it was behind the
counter. See Jones, 533 F.2d at 1389-90.
The court rejected the government's argument that Jones
possessed the revolver on three separate occasions and,
therefore, committed three separate offenses. Noting the
government's illogical position, the court remarked:
With equal propriety the Government might have
charged Jones with possession on more than 1100
separate days and obtained convictions to imprison
Jones for the rest of his life.
Id. at 1391. Because the government offered no proof that
there was any interruption in Jones' possession of the gun, the
court concluded that Jones could be convicted upon only one
count of possession. Id. at 1392; see also Horodner, 993
F.2d at 193 (holding that two convictions for unlawful
possession of the same firearm on two occasions ten days apart
was inappropriate where the possession was one uninterrupted
course of conduct).
We find the reasoning of these cases persuasive and will apply
the principles set forth there to this case. Here, the
government seeks two convictions under section 922(g)(1) based
on the fact that Yednak possessed the same gun on two separate
occasions — once either during or immediately after the May 10,
2001 bank robbery and again less than a day later when the car
he was driving was pulled over in the early morning hours of May
11. As in
Jones and Horodner, however, the government has not offered
anything to indicate that Yednak's possession of the gun was
interrupted between these two events. Rather, the government's
proffer merely shows that Yednak had the gun on May 10 and that
he still had the gun on May 11. Under these circumstances, we
find that there is no factual basis to support two separate
counts of possession under section 922(g)(1). Indeed, to hold
otherwise, i.e., to accept Yednak's plea and enter judgment of
conviction on both counts, would result in multiple convictions
for the same offense in violation of the Double Jeopardy clause
of the Fifth Amendment. See Horodner, 993 F.2d at 193-96;
Rivera, 77 F.3d at 1352.
B. Count Ten: Violation of 18 U.S.C. § 924(c)
We next examine whether there is a factual basis underlying
Count Ten of the indictment against Yednak. Count Ten charges
Yednak with carrying a firearm during and in relation to a
drug-trafficking crime or, alternatively, possessing a firearm
in furtherance of a drug-trafficking crime in violation of
18 U.S.C. § 924(c).*fn1 We find that the facts do not support a
guilty plea as to this count under either of these
1. Carrying a Firearm During and in Relation to a
Section 924(c) makes it unlawful to carry a firearm during and
in relation to a drug-trafficking crime. The statutory
definition of "drug-trafficking crime" is broad enough to
include simple possession of illegal drugs — the underlying
drug-trafficking crime in this case. See 18 U.S.C. § 924(c)(2)
(stating that the term "drug trafficking crime" means, inter
alia, any felony punishable under the Controlled Substances
Act, 21 U.S.C. § 801 et seq.).*fn3
We first examine whether the facts support a conclusion that
Yednak "carried" a firearm within the meaning of this prong. In
Muscarello v. United States, 524 U.S. 125, 118 S.Ct. 1911, 141
L.Ed.2d 111 (1998), the Supreme Court held that the statutory
definition of "carry" applies to a person "who knowingly
possesses and conveys firearms in a vehicle, including in the
locked glove compartment or trunk of a car, which the person
accompanies." Id. at 126-27, 118 S.Ct. 1911. The Court
explained that this definition best serves the basic purpose of
the statute — "to combat the `dangerous combination' of `drugs
and guns.'" Id. at 132, 118 S.Ct. 1911 (quoting Smith v.
United States, 508 U.S. 223, 240, 113 S.Ct. 2050, 124 L.Ed.2d
Here, the record indicates that the police found Yednak's gun
underneath the seat of the car he was driving and that Yednak
knowingly placed it there. Under the definition set forth in
Muscarello, these facts support a finding that Yednak
"carried" a firearm as contemplated by section 924(c).
Our inquiry, however, does not end there. We next must
determine whether the facts support a finding that Yednak
carried the firearm "during and in relation
to" a drug-trafficking crime. The Supreme Court in Muscarello
explained that Congress added the "during and in relation to"
language "in part to prevent prosecution where guns `played' no
part in the crime." Id. at 137, 118 S.Ct. 1911; see also id.
at 139, 118 S.Ct. 1911 ("The limiting phrase `during and in
relation to' should prevent misuse of the statute to penalize
those whose conduct does not create the risks of harm at which
the statute aims.").
Similarly, in Smith v. United States, the Supreme Court
stated that the phrase "in relation to," at a minimum,
"clarifies that the firearm must have some purpose or effect
with respect to the drug-trafficking crime." 508 U.S. at 238,
113 S.Ct. 2050. The carrying of a firearm is not "in relation
to" a drug crime if the firearm's presence is "coincidental or
entirely `unrelated' to the crime." Id. (quoting United
States v. Stewart, 779 F.2d 538, 539 (9th Cir. 1985)). Instead,
"the gun at least must `facilitat[e], or ha[ve] the potential of
facilitating,' the drug trafficking offense." Id. (quoting
Stewart, 779 F.2d at 540) (alterations in original); see also
United States v. Loney, 219 F.3d 281, 289 (3d Cir. 2000)
(stating that "the gun's relationship to a crime should not be
Here, the record is devoid of facts that would support a
finding that Yednak's carrying of the handgun was "in relation
to" his possession of heroin. As the record establishes, Yednak
was giving a third party a ride to housing projects in
McKeesport when he was stopped by the police. He was not going
to visit his drug supplier or anyone else in connection with the
drugs. Rather, he simply brought the drugs with him for personal
use. At the same time he had a gun under the seat. Under these
facts, the court fails to see any nexus between the gun and the
drug crime as required to support a conviction under section
924(c). To the contrary, the record indicates that Yednak
acquired and possessed the gun to assist him in the commission
of bank robberies, including the PNC Bank robbery less than a
day before. There is nothing on the record, other than the
government's suggestion, to support a finding that Yednak was
carrying the gun for any purpose related to the drugs.
Therefore, the court finds that there is no factual basis to
support the guilty plea to Count Ten of the indictment insofar
as it charges Yednak with carrying a firearm during and in
relation to a drug-trafficking crime.
2. Possession of a Firearm in Furtherance of a
Count Ten alternatively alleges that Yednak violated section
924(c) by possessing a firearm in furtherance of a
drugtrafficking crime. We find that the facts also fail to
support this allegation.
In 1998, Congress added language to section 924(c)
specifically prohibiting possession of a firearm in furtherance
of a drug-trafficking crime.*fn4 There is no question here
that Yednak possessed a firearm within the meaning of this
provision. The only issue is whether that possession was "in
furtherance of" the drug-trafficking crime.
Several courts, including the Court of Appeals for the Third
Circuit, have suggested that the "in furtherance of" standard is
similar to, if not more stringent than, the "in relation to"
component of the "carry" prong. See United States v. Loney,
219 F.3d at 287 (suggesting that "in furtherance of" is more
stringent than "in relation to"); see also United States v.
Mackey, 265 F.3d 457, 461 (6th Cir. 2001) (noting that the
legislative history indicates that Congress "intended the `in
furtherance of' limitation to be a higher standard than `during
and in relation to'"); United States v. Iiland, 254 F.3d 1264,
1274 (10th Cir. 2001).*fn5 In assessing whether a defendant
possessed a firearm in furtherance of a drug offense, pertinent
factors include the type of drug activity, accessibility of the
firearm, whether it was loaded, its proximity to drugs or drug
profits and the circumstances in which it was found. See Bressi
v. United States, No. Civ. A. 01-407, 2001 WL 395289, at *1
(E.D.Pa. Apr. 5, 2001) (citing United States v.
Ceballos-Torres, 218 F.3d 409, 414-15 (5th Cir. 2000)). The
"mere presence" of a firearm is not enough. See
Ceballos-Torres, 218 F.3d at 414. Rather, "[w]hat is . . .
required is evidence more specific to the particular defendant,
showing that his or her possession actually furthered the drug
trafficking offense." Id.; see also Mackey, 265 F.3d at 462
("Congress intended a specific nexus between the gun and the
The government has made no such showing here. Rather, for the
same reasons discussed in Section II.B.1, supra, an analysis
of the relevant factors does not support Yednak's plea of guilty
under this theory. For example, Yednak possessed the drugs for
personal use only. Further, Yednak was not in the car for any
reason related to the drugs; rather, he was driving a third
party to another neighborhood. Moreover, an analysis of the
surrounding circumstances indicates that Yednak acquired and
thereafter possessed the gun to assist him in the commission of
armed bank robberies, not to advance, promote, or otherwise
"further" the possession of heroin at issue.
For these reasons, the court is not satisfied that a factual
basis exists to support Yednak's guilty plea as to Count Ten of
the indictment under either theory espoused by the government.
C. The Court Must Reject the Plea Agreement in Its
Rule 11(e) makes clear that the court may accept or reject a
plea agreement reached between the parties. Fed.R.Crim.P.
11(e)(2), (4). As with the guilty plea itself, the decision
whether to accept or reject a plea agreement is within the
court's discretion. See, e.g., United States v. Greener,
979 F.2d 517, 519 (7th Cir. 1992); United States v. Carrigan,
778 F.2d 1454, 1461 (10th Cir. 1985).
The court, however, may only accept or reject a plea agreement
in its entirety. It does not have the authority simply to reject
those portions of the agreement with which it finds fault. See
United States v. Mukai, 26 F.3d 953, 956 (9th Cir. 1994)
(stating that "[i]f the court did not find the terms of [one
paragraph of the plea agreement] appropriate, its only option
was to reject the agreement in its entirety"); United States v.
Cunavelis, 969 F.2d 1419; 1422 (2d Cir. 1992) ("The district
court may accept or reject a . . . plea [agreement], but it
may not modify it.").
Here, the court has rejected Yednak's plea of guilty as to
Counts Nine, Ten, and Twelve of the indictment. Because Yednak
seeks to plead guilty to these counts pursuant to a plea
agreement with the government, the court also must reject that
plea agreement in its entirety.*fn6 As set forth above, the
court cannot simply strike the sections of the plea agreement
with which it has a problem.
For these reasons, the court does not accept defendant William
Yednak's plea of guilty as to Counts Nine, Ten, and Twelve of
the indictment and rejects the plea agreement between Yednak and
the government in its entirety. The court shall advise Mr.
Yednak in open court that it is not bound by the plea agreement,
shall afford him the opportunity to withdraw his guilty plea as
to Counts One, Three, Seven, and Eleven of the
indictment,*fn7 and shall otherwise comply with the
requirements of Fed.R.Crim.P. 11(e)(4).