UNITED STATES OF AMERICA,
JACQUELINE CHRISTINA CLAIRMONT,
[2001 DSD 27]
United States District Court
District of South Dakota--Central Division
FOR DISPOSITION OF
DEFENDANT'S MOTION TO DISMISS
Randolph J. Seiler, U.S. Attorney's Office, Pierre, SD
Attorney for Plaintiff
Tara L. Adamski, Adamski & Brugger, Pierre, SD
Attorney for Defendant
Hon. Mark A. Moreno, U. S. Magistrate Judge
[¶1] Defendant, Jacqueline Christina Clairmont, filed a Motion to Dismiss and supporting Memorandum on July 24, 2001, Docket No. 29. On August 8, 2001, plaintiff, United States of America, (government) filed a formal response to the Dismissal Motion, Docket No. 34. Because Clairmont's Motion is a dispositive one, this Court is only authorized to determine the same on a report and recommendation basis. Pursuant to 28 USC § 636(b)(1), the Court does now make and propose the following report and recommendation for disposition of the Motion.
[¶2] Clairmont is charged with one count of using or carrying a firearm during a crime of violence, or in the alternative, aiding and abetting the same, in violation of 18 USC §§ 924(c) and 2. She has pled not guilty to the offense and is currently out on bond (on a third-party custody basis) pending trial.
[¶3] In her Motion, Clairmont seeks a dismissal of the charge based on insufficiency of the evidence. Specifically, she argues that the government cannot prove beyond a reasonable doubt that she carried and/or used a firearm "during and in relation to" a crime of violence because "she did not use or avail herself of the weapon". Docket No. 29 at 1. She also argues that she cannot be convicted of a firearm offense because she was not present when the violent crimes alleged actually occurred. Id.
[¶4] In the alternative, Clairmont claims that the § 924(c) offense, as it pertains to her, is defectively charged and should be dismissed. The gravamen is her claim is that she is charged "only with the enhancement and not with a predicate crime for the enhancement". Id. at 2.
[¶5] After careful review of the evidence of record (1) and relevant precedent, the Court concludes that Clairmont's Motion should be DENIED in all respects, as explained in more detail below.
[¶6] Insofar as pertinent here, § 924(c) requires the imposition of specified penalties if a defendant "during and in relation to any crime of violence, uses or carries a firearm." By its terms, the statute requires the prosecution to make two showings. First, it must demonstrate that the defendant "use[d] or carrie[d] a firearm." Second, it must prove that the use or carrying was "during and in relation to" a crime of violence. Smith v. United States, 508 US 223, 227-28 (1993); see also, United States v. Barry, 98 F3d 373, 377-78 (8th Cir. 1996), cert. denied, 519 US 1140 (1997).
[¶7] The Supreme Court has held that the phrase "carries a firearm" applies to a defendant who knowingly possesses and conveys a firearm in a vehicle which he accompanies. Muscarello v. United States, 524 US 125, 127-39 (1998). Thus, § 924(c) applies not only when the defendant bears a firearm, i.e., carries the weapon on or about his person, but also, when he personally transports, possesses, or keeps a firearm anyplace in his vehicle. Id; see also, United States v. Turner, 157 F3d 552, 556-57 (8th Cir. 1998); Bradshaw v. United States, 153 F3d 704, 706-07 (8th Cir. 1998). (2)
[¶8] The phrase "in relation to" is expansive but not without boundaries. Smith, 508 US at 237. At a minimum, the firearm at issue must "have some purpose or effect with respect to the [ ] crime; its presence or involvement cannot be the result of accident or coincidence." Id. at 238. The "in relation to" language contemplates that "the gun at least must 'facilitat[e] or ha[ve] the potential of facilitating,' the [violent] offense." Id; see also, United States v. Damm, 133 F3d 636, 639 (8th Cir.) cert. denied, 523 US 1101 (1998).
[¶9] Clairmont is charged with being a principal or in the alternative, as an aider and abettor, under § 924(c). The Eighth Circuit has made it clear that a defendant may be found guilty of a § 924 offense as an aider and abettor. Barrett v. United States, 120 F3d 900, 901 (8th Cir. 1997); United States v. Simpson, 979 F2d 1282, 1284-86 (8th Cir. 1992), cert. denied, 507 US 943 (1993); see also, United States v. Davis, 154 F3d 772, 782-84 (8th Cir. 1998) (a defendant may be held liable under § 924(c) for the acts of others, even without actual knowledge, but the government must prove that the use or carrying of the firearm was reasonably foreseeable in furtherance of the crime of violence or drug trafficking offense), cert. denied, 525 US 1151 (1999). The Court has also recognized that a defendant who did not personally use or carry a firearm may nonetheless be convicted of violating § 924(c) even after Bailey v. United States, 516 US 137 (1995). Barrett, 120 F3d at 901.
[¶10] The aider and abettor statute, 18 USC § 2, provides that "one who aids, abets, counsels, commands, induces or procures", an offense against the United States "is punishable as a principal". This statute does not create a separate crime, instead, it makes the listed actions a primary violation of another, specific crime. Simpson, 979 F2d at 1285. Under § 2, the principal's acts become those of the aider and abettor as a matter of law. Pereira v. United States, 347 US 1, 8-11 (1954); see also, Nye & Nissen v. United States, 336 US 613, 620 (1949) ("aiding and abetting ... states a rule of criminal responsibility for acts which one assists another in performing").
[¶11] Applying these precepts to the instant case, the Court is easily able to find and conclude that there is sufficient evidence to enable the government to go forward with its prosecution of Clairmont on the firearms charge. Two Eagle is charged with eight crimes of violence that revolve around him shooting and seriously injuring four people. (3)
Clairmont was requested by Two Eagle to get him the rifle that he ultimately used to shoot the four alleged victims and to obtain ammunition for the same. She personally possessed and transported the rifle and gave it to Two Eagle at or near the crime scene and then drove him away, while he was still armed, within minutes after the shooting occurred. Under these circumstances, Clairmont "carried a firearm in relation to a crime of violence" within the meaning of § 924(c), or at the very least, aided and abetted Two Eagle in the violation of this statute. Whether Clairmont had the requisite knowledge and/or criminal intent to be convicted is, of course, for a jury to decide at trial.
[¶12] Contrary to her claim, the § 924(c) offense Clairmont is charged with, is a separate offense and not an enhancement. Castillo v. United States, 530 US 120, 123-31 (2000); United States v. Carlson, 217 F3d 986, 987-89 (8th Cir. 2000); cert. denied, 121 SCt 822 (2001); see also, Eighth Circuit Manual of Jury Instructions (Criminal) § 6.18.924(C) at 223 (2000). This being the case, Clairmont's defectiveness claim must fail.
[¶13] Based on the foregoing, it is accordingly
[¶14] RECOMMENDED that defendant's Motion to Dismiss, Docket No. 29, be DISMISSED in its entirety and with prejudice.
[¶15] Defendant Clairmont filed a motion to dismiss count IX of the indictment which motion included a supporting memorandum (Doc. 29). US Magistrate Judge Moreno examined the FBI 302 as to statements allegedly made by Clairmont and served a report and recommendation for disposition of Clairmont's motion (Doc. 38). The Court has conducted a de novo review of the FBI 302 and all the files and records herein. Clairmont has filed objections (Doc.42) to the recommendation of the magistrate and the objections have been considered.
[¶16] Clairmont made a number of inconsistent statements, according to the form 302. Some of those statements, if believed by the jury, would be sufficient to allow a jury to find Clairmont guilty of carrying a firearm in relation to a crime of violence or aiding and abetting the same. The objections should be overruled, the motion denied and the report and recommendation accepted. Now, therefore,
[¶17] IT IS ORDERED that the motion to dismiss (Doc. 29) is hereby denied.
[¶18] IT IS FURTHER ORDERED that the objections (Doc.42) should be and are hereby overruled and the report and recommendation (Doc. 38) should be and is hereby adopted.
Dated at Aberdeen, South Dakota, this 27th day of August, 2001.
BY THE COURT:
CHARLES B. KORNMANN
United States District Judge
1. In passing on Clairmont's Motion, the Court has considered the statements she made to FBI agents on June 6, 2001 which were produced by counsel for Duane Two Eagle, the co-defendant, in accordance with an order that was entered in response to Two Eagle's Motion for Severance, see Docket Nos. 26, 32, 36.
2. Prior to Muscallero, the Eighth Circuit had already determined that transporting a firearm in a vehicle satisfied the "carry" prong of § 924(c). See United States v. Willis, 89 F3d 1371, 1378 (8th Cir.), cert. denied, 519 U.S. 909(1996).
3. There can be no question that the assault offenses Two Eagle is charged with are crimes of violence under 18 USC § 924(c)(3).