USCA1 Opinion

UNITED STATES COURT OF APPEALS

FOR THE FIRST CIRCUIT
____________________
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]
___________________
____________________
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 w
________________
Sheldon Whitehouse, United States Attorney, was on brief for appell
__________________

____________________
March 24, 1995
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CYR, Circuit Judge.

CYR, Circuit Judge.
_____________
his conviction and
relation to
(c)(1).

Appellant Michael Crass challenges

sentence for

drug trafficking

using a firearm
crime.

See
___

during and

18 U.S.C.

in

924

Finding no error, we affirm.

On

June

4,

1993,

executed a search warrant

the

Providence

Police Department

at the Crass apartment and

discovered

marijuana
police

cocaine

throughout.1

found

seventeen

baggies

the

hand grip

on one

Although
loaded

and

and operable.

defense

that he

The

had left

repair six months prior

On

closet shelf,

of cocaine
firearm

and

two

was broken,

pistols.

both were

putative

owner testified

one unloaded

firearm with

to the search,

the

for

the

Crass for

and the other for

safe-

keeping a week before the search.

Crass first challenges the sufficiency of the evidence,

which

we

review in

United States
_____________

the light

v. Cotto-Aponte, 30
____________

Notwithstanding

their proximity

contends on appeal, as he
used

of 18 U.S.C.

that there

F.3d 4,
to the

to a drug
924(c)(1).

United States v. Bruce, 939 F.2d

_____________
_____
claim

the verdict.

(1st

Cir. 1994).

baggies of

cocaine, he

were not

trafficking crime within

He principally relies on

1053 (D.C. Cir. 1991), for

was insufficient

nexus," see United States

___ _____________

favorable to

did below, that the firearms

during and in relation

the meaning

most

evidence of

v. Paulino, 13
_______

the

a "facilitative

F.3d 20, 26 (1st

Cir.

____________________

1Crass pled guilty to three drug trafficking offenses based

on the evidence seized from his apartment.
2

1994), between the firearms

Under

our

and the drugs found in

"facilitative nexus"

test, a

the closet.2

section 924-

(c)(1) conviction may lie even though the evidence establishes no

more than that
relation to

a firearm served a passive purpose

_______

the commission of

means

of safeguarding

close

proximity

inside

between the

as by

affording a

possessed for

distribution.

firearms

the cocaine

and

The

seized

the same closet enabled the jury reasonably to infer that

Crass

kept

cocaine,
Cir.

drugs

a drug crime,

during and in

for

see United States v.

___ _____________

1994),

nexus."

the firearms

clearly

the purpose

of

safeguarding the

Bergodere, 40 F.3d
_________

establishing the

512, 519 (1st

necessary

"facilitative

See Smith v. United States, 113 S. Ct. 2050 (1993).

___ _____
_____________

Second, Crass claims surprise and prejudice from police

testimony concerning
the search.

the street value

At a pretrial

of expert testimony to
R. Crim.
government

testify[] about giving

seized in

hearing on his request for disclosure

be presented by the government,

P. 16(a)(1)(E), Crass
intended

of the cocaine

to

have

sought to ascertain
"police officers

opinions about

the use of
___ ___ __

see Fed.
___

whether the

com[e]

in

and

the guns
___ ____

and

being

consistent with their experience and

(emphasis added).

that kind of thing."

The government disavowed any such intention.

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2Neither party noted that Bruce had been overruled in United

_____
______
States v. Bailey, 36 F.3d 106, 115 (D.C. Cir. 1994) (en banc)
______
______
(Ginsburg, J.), cert. denied, 63 U.S.L.W. 3642 (U.S. 1995), which
____ ______
explicitly adopted our "facilitative nexus" test.
3

At trial,
cer's testimony on
caine,

the government
the current

presented a

street value of

for the purpose of establishing

narcotics offithe seized

co-

that Crass possessed the

firearms as a means of safeguarding the valuable cocaine stash he

kept in the
exclude

the

response to
that the

apartment.
testimony

Crass later urged the

because it

the Rule 16 motion.

testimony did

had

not

district court to
been

disclosed in

The court declined.

not come within

the pretrial

It ruled

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

under Rule 16 is triggered by a proper request.

Carrasquillo-Plaza,
__________________
trict

court

873 F.2d 10, 12

supportably

testimony proffered by
pretrial

ruled,

related to

the street value of

rectly to

the purpose for which

importantly, the

defense

United States v.
_____________

inter alia,
_____ ____

by the

that

did not

the

defense, because

police

the

it directly

and only indi-

Crass kept the guns.

requested

The dis-

come within

the seized drugs

neither

disclose

(1st Cir. 1989).

the government

motion submitted

to

Yet more

continuance

to

obtain its own evidence on street drug prices, nor does it allege
______
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,

___ ______________
_________

1178 (1st Cir. 1993) ("The lack

15 F.3d 1161,

of demonstrable prejudice sounds

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
U.S.S.G.

3E1.1.

The defendant

pursuant to

bears the burden of proof under

section 3E1.1 and we review the sentencing court ruling for clear
error.

United States v.
______________

1993).

Although

Guidelines generally

Morillo, 8
_______

Crass

expresses

(1st Cir.

the Sentencing

downward adjustment

for accep-

the defendant "puts the government

to its burden of proof at trial

elements of guilt, is

864, 871

acknowledges that

preclude a

tance of responsibility where

F.3d

by denying the essential factual

convicted, and only then admits

remorse," U.S.S.G.

3E1.1 (n.2),

he argues

guilt and

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 exercises his constitutional right to a trial.
This may occur, for example, where a defendant 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

for

acceptance of responsibility

the defense

that he qualified for a

represented, both at

the firearms were in

downward adjustment

notwithstanding the

fact that

trial and at

sentencing, that

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
____

intent to
______ __

facilitate drug trafficking.

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United States v. Reyes______________

______

Mercado, 22 F.3d 363, 367 (1st Cir. 1994) (defendant must possess
_______

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.").

to

blunt

the

government's case

intent, the defense

on

called the putative

who testified that he had delivered

safekeeping.

the

Further, defense

In an effort

essential

element of

owner of the

firearms,

them to Crass for repair and

counsel urged

the jury

to find

that the firearms were not possessed with intent to safeguard the
______
drugs.
Thus,
factual
_______

as was

his right,

Crass contested

element of intent both at trial

______

the jury could

not have

without

rejecting the

first

and at sentencing.

convicted Crass on
claim that

the central

he

the firearm
did not

But

charge

intend to

possess the firearms for

See
___

id.
__

see
___

U.S.S.G.

the purpose of safeguarding

Except in extraordinary circumstances not present here,

3E1.1

(n.2),

intent, like
______

element of the crime charged, may

dant without jeopardizing

any other

the jury,

evidence.
Cir.

the

a downward adjustment

defendant's interpretation

See United States v. Bennett,

___ ______________
_______

1994).

The district

for "acceptance

Affirmed.
Affirmed.
________
6

rejects, as

of the

relevant

37 F.3d 687, 697

court ruling was

law and the evidence.

essential

not be contested by the defen-

of responsibility" in the event the sentencing court

did

the drugs.

(1st

consistent with the