Proximity Of Gun Held Key In Drug Trafficking Count

A split Federal Appeals panel in Manhattan, in a narrow interpretation of the crime of using a firearm in relation to drug trafficking, has reversed a New York man' conviction of the offense which carries a mandatory 30-year sentence.

The link between a loaded machine gun recovered near the apartment of the girlfriend of the arrested man, Hector Colon, and Mr. Colon's street heroin dales a block away was too tenuous, declared the 2-1 ruling of the U.S. Court of Appeals for the Second Circuit. In US v. Melendez, 93-1087: The gun was thrown from the apartment window along with a box of heroin and records of drug transactions as police tried to gain entry.

"It would be naive to think defendant possessed such a lethal weapon for an innocent purpose," Second Circuit Judge Richard Cardamone wrote for a majority. "But for a defendant to incur the heavy sentence enhancement, a proof must establish the connection between the firearm and the drug trafficking crime, conviction; conviction must come from proof, not chance." Judge Cardomone's opinion, filed Jan. 26, was jointed in by Second Circuit Judge Frank X. Altimari, in dissent, Second Circuit Judge Ellsworth A. Van Graafelland, said the majority interpreted the law too narrowly.

The machine gun " was not a sporting weapon, such as might be used for hunting Judge Can Graafelland who added that it was recovered under circumstances linking it to drug dealing:being jettisoned from an apartment on Jan. 9, 1991, along with a record of drug transactions and heroin of the brand sold by Mr. Colon and his seven co-defendants.

After a three-month jury trial, Mr. Colon and the other defendants were convicted of various narcotics and weapons charges stemming from their heroin sales between 1988 and 1991 in the Bronx, Manhattan, Paterson, N. J., and a New York state prison. The jury found the men were members of a ring headed by Steven Ramos who had various roles in distributing massive amounts of heroin under the brand names "Pure Energy," "Absolute" and "Eternity."

Their sentences, imposed by Southern District Judge Robert Ward, ranged from 151 months (over 12 years) for one defendant , Antonio Sanchez, to 595 months (nearly 50 years) for Leonard Mas. Mr. Colon, 23, was sentenced to a mandatory 360 months for using a machine gun during and in relation to a drug trafficking crime, a sentence to run consecutively to a 151-month sentence for his narcotics convictions.


On appeal, the defendants challenged their convictions and sentences on multiple grounds. Judge Cardamone was persuaded only by Mr. Color's claims that proof was insufficient the machine gun was used "in relation to" drug trafficking.

Judge Cardamone noted a key to determining "in relation to" has been whether a gun is available to facilitate a narcotics offense. He noted prior cases have affirmed convictions when a gun was found on the floor or was under a mattress and when a gun was attached to a string at the bottom of a dumbwaiter shaft.

In another case, however the Second Circuit found no conviction warranted when a gun was found in a dresser drawer.

859 F.2d 250 (1988), Judge Cardamone noted.

Applying the precedents, Judge Cardamone concluded that evidence was "insufficient for any rational juror to find that Colon used the machine gun in relation to a drug trafficking crime. Because the gun was seized in his girlfriend's apartment, where no drug transactions were shown to occur, and because the gun was not in a place easily accessible to him in the event a contingency arose or for him to make his escape during a drug trafficking offense, Colon's conviction under § 924(c) was reversed."

In his dissent, Judge Van Graafelland countered, "Colon, a street vendor of drugs, had to store his valuable supplies some place; in this case he used his girlfriend's apartment. A rational jury readily could conclude that the presence together of the loaded machine gun and the drugs was not coincidental and that, in fact the loaded gun was present with the drug to protect the drug supply from depredation."

Leonard J. Levenson represented Mr. Colon, Christine Gray, John W. Auchincloss II, Nelson W. Cunningham, Alexandra Rebay and James M. Phillips. Assistant US Attorneys in the Southern District, represented the government.

Lawyers for other defendants included Roger Bennet Adler, Michael H. Sporn, Jerry L. Tritz, John Burke of Brooklyn, Hal Meyerson, Steven M.