Court: Court of Appeals for the Tenth Circuit; May 16, 1995; Federal Appellate Court
Donald K. Davis appeals his conviction for multiple drug-related offenses, including possession of cocaine and crack cocaine with intent to distribute, conspiracy, and two counts of using a firearm in relation to drug trafficking. He presents four issues on appeal: (1) alleged error in jury instructions regarding firearm use; (2) claims that jury instructions improperly amended the charged offenses; (3) challenges the legality of sentencing for two firearm convictions; and (4) argues that delays in adjudicating his appeal violated due process rights. The Tenth Circuit Court affirms the conviction and sentence.
The case originates from a traffic stop on July 20, 1992, in Kansas, where Officer Jim Weigel pulled over Davis and co-defendant Christopher Lewis for speeding. During the stop, the officer detected alcohol odor and, upon searching the vehicle, found a loaded firearm and suspected drug-related evidence. Davis allegedly consented to a search, leading to the discovery of approximately one kilogram of cocaine and later, during an inventory search, around 300 grams of crack cocaine and another firearm in the trunk.
Davis faced charges including possession with intent to distribute and firearm offenses. Following a jury trial, he was convicted on all counts in December 1992 and subsequently sentenced to a total of 20 years in prison, including consecutive sentences for the firearm counts. Davis's co-defendant, Lewis, had a separate trial and conviction affirmed by the same court.
The court examines Davis's claim that the jury instruction regarding the use of a firearm in connection with drug trafficking offenses was flawed. Since Davis did not object at trial to this instruction, a "plain error" standard applies. Plain error affects a defendant's fundamental right to a fair trial. The contested jury instruction outlined the requirements for conviction under Title 18, U.S.C. § 924(c)(1), detailing that the government must prove Davis's involvement in drug trafficking crimes and his use of a specific firearm during these offenses.
Davis contends that the jury instruction allowed for multiple convictions under § 924(c) based on a single underlying drug offense, violating the Double Jeopardy Clause. However, multiple convictions are permissible if the jury can link each firearm charge to distinct underlying offenses. The jury was instructed that conviction of the firearm counts required a finding of guilt for the corresponding drug counts and the specific firearm usage.
The court finds that the jury could ascertain clear links between each firearm charge and its respective drug offense since each firearm was specifically paired with a drug charge in the Indictment. Consequently, the court concludes that Jury Instruction No. 23 was not erroneous.
The discussion centers on whether jury instructions constructively amended the Sec. 924(c) offenses in the Indictment. A constructive amendment occurs when evidence and instructions allow for a conviction on charges not explicitly stated in the Indictment, which is a reversible error. Davis contends that the jury instructions led to confusion about which firearm corresponded with which drug charge. However, the court finds that the instructions clearly required the jury to match each firearm with a specific drug charge, thus no constructive amendment took place.
Davis also argues against being sentenced for two Sec. 924(c) convictions, asserting the drug counts represent a single underlying offense under double jeopardy principles. The government counters that since possession with intent to distribute crack and powder cocaine are treated as separate offenses, consecutive sentences can be imposed. The court agrees with the government, affirming that these offenses are distinct for double jeopardy purposes, allowing for multiple convictions.
Additionally, Davis claims that delays in his appeal violated his due process rights. The court evaluates four factors regarding the delay: its length, the justification for it, whether Davis asserted his right to a timely appeal, and any resulting prejudice. Although two years typically indicates inordinate delay, the court finds that the delay in Davis's case, largely due to his attorney's actions, does not constitute a due process violation. Consequently, the court affirms the judgment of conviction and sentence.
