Guns and Waterbeds Don't Mix

The Sixth Circuit’s recent decision in United States v. Barnes, recently confirmed two well-known facts: (a) it is not a good idea to hide guns in a waterbed; and (b) inmates will continue to ignore the advisory that their  jailhouse calls are being recorded.  In Barnes, federal agents executed a search warrant on Barnes’s trailer home.  In executing the warrant, agents not only discovered pills and cash, they also discovered two guns tucked into the corners of the waterbed mattress where Barnes was then sitting.  A grand jury subsequently indicted Barnes for several drug possession charges and for one count of unlawful possession of a firearm in violation of 18 U.S.C. §924(c) and one count of unlawful possession of a firearm by a felon in violation of 18 U.S.C. § 922(g)(1).

While he was being detained in a local jail, Barnes made a colossal error: he made three recorded telephone calls in which he appeared to discuss pill distribution, the handling of drug proceeds, and certain firearms.  Barnes subsequently moved to exclude the calls.  The district court subsequently granted his motion in part and denied it in part, ruling that the government could introduce only the portion of the recordings in which he appeared to make statements about distributing pills.  In reaching this decision, the district court concluded that the evidence was relevant to showing Barnes’s intent to distribute the pills found in his trailer.  A jury subsequently convicted barns of all six counts of the indictment.

On appeal, Barnes challenged the sufficiency of the evidence supporting his § 924(c) conviction, the district court’s decision to admit portions of his recorded jail calls, and his sentence.  With respect to his § 924(c) conviction, Barnes, who was apparently in poor health at the time, argued that due to his physical limitations, including his need for an oxygen tank, he lacked “the agility, quickness, and stamina” to reach the firearms underneath the waterbed mattress.  The Court disagreed.  Noting that one of the firearms was loaded and that the agents found the other weapon unloaded but stored with a loaded magazine, the Court held that a reasonable jury could have concluded that Barnes intended to use the firearms for both protection and deterrence.

Barnes also argued the district court should have excluded the calls under Fed. R. Evid. 404(b)(1) as “other crimes” evidence.  The Court again disagreed, holding that: (a) the Government did not have to prove the other acts were criminal; and (b) the phone calls were probative of Barnes’s intent to distribute drugs.

What can we take away from this case?  First, the proximity of the weapons to the defendant and ammunition is an important factor in supporting a §924(c) conviction.  Second, many defendants will continue to make terrible decisions from their jail cells.