USCA1 Opinion
UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT
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No. 94-1789
UNITED STATES OF AMERICA,
Appellee,
v.
MICHAEL CRASS,
Defendant, Appellant.
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APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF RHODE ISLAND
[Hon. Ronald R. Lagueux, U.S. District Judge]
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Torruella, Chief Judge,
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Aldrich, Senior Circuit Judge,
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and Cyr, Circuit Judge.
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Edward C. Roy, with whom Roy & Cook was on brief for appellant.
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Zechariah Chafee, Assistant United States Attorney, with whom
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Sheldon Whitehouse, United States Attorney, was on brief for appellee.
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March 24, 1995
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CYR, Circuit Judge. Appellant Michael Crass challenges
CYR, Circuit Judge.
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his conviction and sentence for using a firearm during and in
relation to a drug trafficking crime. See 18 U.S.C. 924
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(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).
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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
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claim that there was insufficient evidence of a "facilitative
nexus," see United States v. Paulino, 13 F.3d 20, 26 (1st Cir.
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1Crass pled guilty to three drug trafficking offenses based
on the evidence seized from his apartment.
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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
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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
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Cir. 1994), clearly establishing the necessary "facilitative
nexus." See Smith v. United States, 113 S. Ct. 2050 (1993).
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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.
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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
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being consistent with their experience and that kind of thing."
(emphasis added). The government disavowed any such intention.
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2Neither party noted that Bruce had been overruled in United
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States v. Bailey, 36 F.3d 106, 115 (D.C. Cir. 1994) (en banc)
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(Ginsburg, J.), cert. denied, 63 U.S.L.W. 3642 (U.S. 1995), which
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explicitly adopted our "facilitative nexus" test.
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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.
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Carrasquillo-Plaza, 873 F.2d 10, 12 (1st Cir. 1989). The dis-
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trict court supportably ruled, inter alia, that the police
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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
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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,
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1178 (1st Cir. 1993) ("The lack of demonstrable prejudice sounds
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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.
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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
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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
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intent to facilitate drug trafficking. United States v. Reyes-
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Mercado, 22 F.3d 363, 367 (1st Cir. 1994) (defendant must possess
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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
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drugs.
Thus, as was his right, Crass contested the central
factual element of intent both at trial and at sentencing. But
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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,
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see U.S.S.G. 3E1.1 (n.2), intent, like any other essential
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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
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Cir. 1994). The district court ruling was consistent with the
law and the evidence.
Affirmed.
Affirmed.
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