Appeal from the United States District Court for the Eastern District of Pennsylvania, D.C. Criminal No. 87-00392-03.
Gibbons, Chief Judge, Becker and Weis, Circuit Judges.
We decide in this appeal that a conspiracy to distribute drugs may be a predicate offense to a statute providing an enhanced sentence for the use of a firearm during a "drug trafficking" offense. We also conclude that a city policeman assigned to the United States Drug Enforcement Agency may be a de facto agent within the scope of a statute prohibiting assaults on federal officials. Accordingly, we will affirm the convictions on these offenses, but because of a duplicitive sentence on two counts we will remand for the entry of a general sentence on those charges.
Defendant was convicted on four counts of an indictment charging in count 1, conspiracy to distribute cocaine, in violation of 21 U.S.C. § 846; count 3, assaulting a federal officer, in violation of 18 U.S.C. § 111; count 4, using a firearm during a drug trafficking crime, in violation of 18 U.S.C. § 924(c)(1); and count 5, using a firearm in connection with an assault on a federal officer, in violation of 18 U.S.C. § 924(c)(1). The district court imposed concurrent sentences of three years imprisonment on counts 1 and 3, and consecutive five-year terms on counts 4 and 5.
The defendant's convictions were based on events that occurred on October 16, 1987 at the intersection of Third and Ontario Streets in Philadelphia. While driving through the area, undercover police officers Ronald Abel and Jorge Cruz noticed the suspicious behavior of two men, Neris and DeJesus, standing on the street corner. The officers circled the block and parked their car near the intersection so that they had an unobstructed view of the two suspects' activities.
For some time, the policemen watched the two men take small packets from an aerosol can and sell them to certain passing motorists. The officers then drove into the intersection, stopping their car crosswise against the southwest corner. They inspected the can and, finding that it contained glassine packets of a white substance, arrested and handcuffed Neris and DeJesus. Officer Abel returned to the car to radio for assistance while Officer Cruz remained with the two suspects.
At this moment, defendant -- driving north on Third Street -- brought his car to a screeching stop at the intersection and, taking a carbine from the front seat, pointed it at Officer Abel as the policeman was radioing in the arrest report. Noticing the defendant's actions, Officer Cruz drew his revolver and shouted, "Police; Drop it or I'll shoot." Defendant lowered the carbine and surrendered it to Officer Cruz, who took him to where the two suspects were standing.
Defendant stretched out prone on the sidewalk as directed by the officers. After a few minutes, defendant attempted to rise and, as Officer Cruz forced him back down, defendant struck his head on the sidewalk, provoking DeJesus to exclaim: "Tony, stop. It won't help any." When defendant was searched, $942 in currency was found in his pocket.
DeJesus and Neris both pleaded guilty to narcotics charges, but defendant maintained his innocence. At his lawyer's request, defendant was examined before trial by a psychiatrist who reported that defendant asserted he was intoxicated at the time of his arrest. Defendant asked the court for, but was refused, a continuance to permit further mental evaluation by a psychologist.
At trial Officer Abel testified that he had been employed by the Philadelphia Police Department since 1981, and in June 1987 had been assigned to the Federal Drug Enforcement Administration Task Force. He stated that, though he remained a city policeman, he took an oath as a DEA Task Force member. DeJesus and Neris did not testify, nor did defendant or his psychiatrist.
After the trial concluded, defendant was evaluated by a psychologist. On the basis of the psychologist's comments about the defendant's alleged intoxication, defendant moved for a new trial. The district court denied the motion, ruling that the matters the psychologist had recounted were not newly discovered evidence.
On appeal defendant presses a number of theories for reversal. First, he contends that there was insufficient evidence to prove that he participated in the DeJesus/Neris conspiracy. Second, he asserts that the government's evidence that Officer Abel was a federal official at the time of the assault was inadequate. Third, he argues that conspiracy is not a predicate offense for enhanced punishment under section 924(c)(1). Fourth, he insists that his consecutive five-year sentences on the two section 924(c)(1) counts are duplicative, and that only one such term of imprisonment is permissible.*fn1
The prosecution concedes that only one firearm incident occurred here and, therefore, only one enhanced punishment may be imposed. The government agrees that the case must be ...