United States of America, Plaintiff-appellee, v. Ernest Michael Wilson, Defendant-appellant, 884 F.2d 174 (5th Cir. 1989)

Defendant-appellant, Ernest Michael Wilson ("Wilson"), appeals from his conviction under 18 U.S.C. § 924(c) (1), use or carrying of a firearm during and in relation to a drug trafficking offense. We affirm Wilson's conviction and hold that (1) there was sufficient evidence to establish that Wilson carried a firearm "in relation to" a drug trafficking offense, and (2) the indictment fairly imports the essential elements of the charged offense.

Wilson was observed approaching a parked Buick Regal which had been under surveillance by Fort Worth police officers in a residential area of Fort Worth, Texas.¹  As Wilson began to enter the vehicle, the officers approached and identified themselves as police. Wilson stepped back and reached toward the center part of his belt in the back of his pants. The officers then "grabbed" Wilson. In the waistband of Wilson's pants, the officers discovered a fully loaded Browning 9mm. automatic handgun. At that point, Wilson was arrested. The arresting officer noticed that Wilson's clothes smelled of phenylsylic acid--a chemical associated with the manufacture of methamphetamine. A search warrant was issued for the vehicle. The search revealed 139 grams of methamphetamine and a notebook containing columns of numbers and names and references to "owes" and "grams."

Wilson was charged on a one count indictment of carrying a firearm during and in relation to a drug trafficking offense in violation of 18 U.S.C. § 924(c) (1).²  He was convicted in a trial by jury after presenting no evidence. Wilson appeals his conviction alleging that (1) there was insufficient evidence to establish that he carried a firearm "in relation to" a drug trafficking offense, and (2) the indictment was fatally defective for failure to allege a scienter element for either the substantive or predicate offense.

Wilson first contends that his conviction should be reversed because there was insufficient proof that he carried a firearm "in relation to" a drug trafficking offense.³  In evaluating the sufficiency of the evidence, we look at the evidence in the light most favorable to the government and resolve all credibility inferences consistent with the jury's verdict. United States v. Hernandez-Palacios, 838 F.2d 1346, 1348 (5th Cir. 1988). The evidence is sufficient to support the jury's verdict if a rational trier-of-fact could have found the essential elements of the charged crime proven beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 313-14, 99 S. Ct. 2781, 2786, 61 L. Ed. 2d 560 (1979).

Section 924(c), as originally drafted in 1982, made it an offense to "carr [y] a firearm unlawfully during the commission of a felony." 18 U.S.C. § 924(c) (2) (1982) (emphasis added). In 1984, Congress revamped Sec. 924(c) and substituted the phrase "during and in relation to." 18 U.S.C. § 924(c) (1984) (emphasis added). The revision was earmarked to clarify the existing elements of the offense and to:preclude [Sec. 924(c)'s] application in a situation where [a weapon's] presence played no part in the crime....

S.Rep. No. 225, 98th Cong., 2nd Sess. 314 n. 10 (1983), reprinted in 1984 U.S.Code Cong. & Admin.News 3182, 3492 n. 10. As the Ninth Circuit puts it, the "in relation to" language was calculated to avoid convictions for "inadvertently carrying a firearm in an unrelated crime." United States v. Ramos, 861 F.2d 228, 231 (9th Cir. 1988). Thus, under the current version of Sec. 924(c), the government is shouldered with the burden of establishing some relationship between the firearm Wilson possessed and the predicate drug trafficking offense.

We have previously upheld convictions under Sec. 924(c) where large numbers of firearms were readily available in strategic locations near large quantities of drugs and money--under what has come to be known as the "fortress theory." United States v. Robinson, 857 F.2d 1006, 1010 (5th Cir. 1988) (residence contained seven firearms, ammunition, 444 gelatin capsules of cocaine, marijuana and thousands of dollars in cash and jewelry); see also United States v. Matra, 841 F.2d 837, 842-43 (8th Cir. 1988) (drug house included machine gun, three pistols, an assault rifle, a shotgun, ammunition, over $200,000 in cocaine and $10,000 in cash). In fortress type cases, the sheer volume of weapons and drugs makes reasonable the inference that the weapons involved were carried in relation to the predicate drug offense since they "increase [ ] the likelihood [the drug offense will] succeed." Robinson, 857 F.2d at 1010 (citing Matra, 841 F.2d at 843).

However, for cases that do not fit within the fortress analogy, something more than strategic proximity of drugs and firearms is necessary to honor Congress' concerns. In United States v. Raborn, 872 F.2d 589, 595 (5th Cir. 1989), we held that where a defendant actually carried a weapon during drug transactions, a jury could reasonably conclude that the weapon was carried in relation to, and for protection during, drug trafficking crimes. Similarly, in United States v. Coburn, 876 F.2d 372, 375 (5th Cir. 1989) we held that a jury could reasonably conclude that a shotgun, prominently displayed in the rear window of a pickup truck used to distribute marijuana, served as protection in relation to a drug trafficking offense.

In the present case, the district court instructed the jury that a separate element of a Sec. 924(c) violation was that a weapon be carried during and in relation to the predicate drug offense. The government's evidence included testimony that Wilson carried his weapon when entering the vehicle containing methamphetamine, and that when confronted by police, Wilson reached for the weapon. It would not have been unreasonable for the jury to infer that the presence of the weapon and drugs in close proximity, along with Wilson's affirmative act of reaching for the weapon, established that Wilson carried the weapon for protection in relation to his drug activities. Thus, we concluded that there was sufficient evidence to sustain Wilson's conviction.

Wilson's second contention alleges that his indictment was fatally defective because it failed to state the scienter requirement for either the substantive offense (18 U.S.C. § 924(c) (1)) or the predicate offense (21 U.S.C. § 841(c) (1)). The indictment charged:

On or about August 7, 1987, in the Fort Worth Division of the Northern District of Texas, ERNEST MICHAEL WILSON, defendant, did use or carry a firearm to wit: a Browning High Power Model, ... during and in relation to a drug trafficking crime, that is, a felony violation of federal law involving the possession with intent to distribute methamphetamine, in violation of Title 21, United States Code, Section 841(a) (1).

In violation of Title 18, United States Code, Section 924(c) (1).

In order to address Wilson's contentions, we must determine the scienter required under Sec. 924(c) (1)--an issue of first impression for this court.⁴  At the outset we note that Sec. 924(c) (1) does not explicitly state the scienter required in formal terms such as "knowingly" or "willfully."⁵  Wilson contends that the scienter for Sec. 924(c) (1) is, therefore, provided by the default scienter of "willfully" under Sec. 924(a) (1) (D).⁶  However, Sec. 924(a) (1), by its terms, excludes subsection (c). Thus, Sec. 924(a) (1) lends no aid to our construction of the scienter element in Sec. 924(c) (1).

In United States v. Nelson, 733 F.2d 364, 370-71 (5th Cir. 1984), we held that under the former version of Sec. 924(c), the government must prove that a defendant "knowingly carried a firearm...." Our holding in Nelson was consistent with the general rule of construction that "knowledge of the facts constituting the offense [ ] is ordinarily implied" where a "statute does not expressly mention any mental element." United States v. Barber, 594 F.2d 1242, 1244 (9th Cir.), cert. denied, 444 U.S. 835, 100 S. Ct. 69, 62 L. Ed. 2d 46 (1979) (citing Morissette v. United States, 342 U.S. 246, 252, 72 S. Ct. 240, 244, 96 L. Ed. 288 (1951) ("wrongdoing must be conscious to be criminal")).

None of the subsequent revisions of Sec. 924(c) casts doubt on our holding in Nelson. In fact, subsequent legislative history reaffirms Nelson.⁷  In 1986, the Firearms Owners' Protection Act set the stage for a revamping of Sec. 924. In assessing the scienter requirements under Sec. 924, it was stated:

Case law interpreting the criminal provisions of the Gun Control Act have required that the government prove that the defendant's conduct was knowing.... It is the Committee's intent, that unless otherwise specified, the knowing state of mind shall apply....

H.Rep. No. 99-495, 99th Cong., 2d Sess. 1, 25-26 (1986), reprinted in 1986 U.S.Code Cong. & Admin.News 1327, 1351-52. A proposal that "willfulness" be adopted as the mens rea for certain offenses was "specifically rejected." Id. We find this subsequent legislative history to be a reaffirmation of our holding in Nelson and an indication of what the authors of Sec. 924(c) intended. Thus, we conclude that the requisite mental state for a violation of Sec. 924(c) is knowledge of the facts constituting the offense.

Having established the scienter requirement under Sec. 924(c), we turn to the merits of Wilson's contention that his indictment was fatally defective for failing to set out the requisite scienter for the substantive and predicate offenses. The Fifth and Sixth Amendments demand that a grand jury indictment set forth each essential element of an offense.⁸  Russell v. United States, 369 U.S. 749, 763-65, 82 S. Ct. 1038, 1046-48, 8 L. Ed. 2d 240 (1962); United States v. Campos-Ascencio, 822 F.2d 506, 508 (5th Cir. 1987); United States v. Outler, 659 F.2d 1306, 1310 (5th Cir. 1981), cert. denied, 455 U.S. 950, 102 S. Ct. 1453, 71 L. Ed. 2d 665 (1982).

An objection that an indictment fails to state an essential element of a crime may be raised at any time. Fed. R. Crim. P. 12(b) (2); Campos-Ascencio, 822 F.2d at 508 n. 1; United States v. Oberski, 734 F.2d 1034, 1035 (5th Cir. 1984), cert. denied, 469 U.S. 1113, 105 S. Ct. 797, 83 L. Ed. 2d 790 (1985). However, where, as here, "the defendant demonstrates no prejudice and waits for appeal to assert his challenge, an appellate court will read the indictment liberally." Campos-Ascencio, 822 F.2d at 508. Under such circumstances, an indictment will be sufficient "unless it is so defective that it does not, by any reasonable construction, charge an offense for which the defendant is convicted." United States v. Trollinger, 415 F.2d 527, 528 (5th Cir. 1969) (per curiam).

The test of the validity of an indictment is "not whether the indictment could have been framed in a more satisfactory manner, but whether it conforms to minimal constitutional standards." United States v. Webb, 747 F.2d 278, 284 (5th Cir. 1984), cert. denied, 469 U.S. 1226, 105 S. Ct. 1222, 84 L. Ed. 2d 362 (1985). While a statutory citation cannot, standing alone, meet this test, a citation to the statute "reinforce [s] other references within the indictment." Campos-Ascencio, 822 F.2d at 508; United States v. Varkonyi, 645 F.2d 453, 456 (5th Cir. 1981) (citation to statute in indictment "direct [s] the reader" to it). An indictment that tracks the words of a statute is not sufficient "unless those words of themselves fully, directly, and expressly, without any uncertainty of ambiguity, set forth all the elements necessary to constitute the offense intended to be punished." Gordon, 780 F.2d at 1171. However, "the law does not compel a ritual of words," and a recitation of the exact scienter ("knowing") is not required where the pleading "fairly imports" knowledge. United States v. Purvis, 580 F.2d 853, 857-58 (5th Cir. 1978), cert. denied, 440 U.S. 914, 99 S. Ct. 1229, 59 L. Ed. 2d 463 (1979); United States v. Arteaga-Limones, 529 F.2d 1183, 1199-1200 (5th Cir.), cert. denied, 429 U.S. 920, 97 S. Ct. 315, 50 L. Ed. 2d 286 (1976).

The indictment in Purvis fully tracked the statutory language (which language did not formally set out the requisite scienter of "intentionally"), and the indictment referred to the relevant statutory citation. Further, since the indictment only tracked the statute, the indictment did not explicitly set out the scienter element.⁹  The court ruled that the indictment was sufficient despite the absence of specific words of intent because " [t]aken as a whole, the facts set forth in the indictment here sufficiently allege intent...." Purvis, 580 F.2d at 857.

In Arteaga-Limones, the defendant argued that his indictment was fatally defective for failing to include the scienter of "knowingly or intentionally."¹⁰  The court held that the indictment was sufficient because "it fairly imports knowledge of intent." Arteaga-Limones, 529 F.2d at 1199-200.

The present case is controlled by Purvis and Arteaga-Limones. The indictment here referred to both the predicate and substantive statutes. The scienter requirements for both statutes, while not present in the statutes,¹¹  were relatively clear. The mens rea for both Sec. 924(c) (1) and the possession element of Sec. 841(a) (1) was the lowest possible mental state short of strict liability--knowledge of the facts constituting the offense--and the indictment, liberally read,¹²  "fairly imports" this marginal mental state. Therefore, we conclude that the indictment sets out the essential elements of the predicate and substantive offenses.

Because it is our conclusion that the indictment in this case sufficiently set out the essential elements of the offense, and because the jury's verdict was based upon sufficient evidence, we AFFIRM the district court.