United States v. Harold Habeck, II ( 2013 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 12-4891
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
HAROLD A. HABECK, II,
Defendant-Appellant.
Appeal from the United States District Court for the Eastern
District of Virgnia, at Richmond. John A. Gibney, Jr., District
Judge. (3:12-cr-00075-JAG-1)
Submitted: June 5, 2013 Decided: June 24, 2013
Before WILKINSON, KING, and GREGORY, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Michael S. Nachmanoff, Federal Public Defender, Alexandria,
Virginia; Nia A. Vidal, Assistant Federal Public Defender,
Patrick L. Bryant, OFFICE OF THE FEDERAL PUBLIC DEFENDER,
Richmond, Virginia, for Appellant. Neil H. MacBride, United
States Attorney, Alexandria, Virginia; Michael A. Jagels,
Special Assistant United States Attorney, OFFICE OF THE UNITED
STATES ATTORNEY, Richmond, Virginia, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Harold A. Habeck, II, appeals from his conviction by a jury
for possessing a firearm in furtherance of a drug trafficking
crime under 18 U.S.C. § 924(c). Habeck asserts that the
evidence at trial was insufficient to support the jury’s verdict
and that the district court erred in its instruction regarding
the “in furtherance” element of the crime. For the reasons that
follow, we affirm.
I.
Habeck was a resident of Richmond, Virginia, who conducted
an extensive marijuana growing operation out of his home. After
a month-long investigation and the arrest of one of Habeck’s
customers, who was seen exiting Habeck’s house and who admitted
to purchasing marijuana from him, police obtained a search
warrant for his house.
Upon entering, police discovered that Habeck had screwed
shut all of the windows and all of the doors except the one
through which they had entered. Habeck was subsequently given
Miranda warnings and interviewed. He informed the officers that
he was growing “top-end weed” for sale, J.A. 57, and identified
the locations of three firearms in the house. He also admitted
that he had screwed the doors and windows closed because he was
“paranoid that somebody may try to rob” him. J.A. 56.
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Police then conducted a search of Habeck’s house. They
discovered 397 marijuana plants, along with fertilizer, watering
tools, power converters, lights, an elaborate ventilation
system, and other accessories related to growing high-grade
marijuana. Habeck’s product was high-grade in that it sold for
between 10 and 20 times more than ordinary marijuana.
In addition to the drug paraphernalia, investigators also
found the three firearms Habeck had identified: one
semiautomatic handgun, one revolver, and one shotgun. The
handgun was hidden behind a television set in the lower story
den, the revolver was hidden behind a television set in Habeck’s
bedroom, and the shotgun was behind several golf clubs in the
dining room. All three weapons were loaded when they were
discovered. Neither the handgun nor the revolver had safety
features; both were primed to fire with a single pull of the
trigger. Furthermore, the handgun was loaded with “hollow
point” bullets, which are anti-personnel rounds that cause more
harm to humans than normal ammunition.
As a result of the investigation, Habeck was charged with
one count of knowingly possessing with intent to distribute one
hundred or more marijuana plants in violation of 21 U.S.C.
§§ 841(a)(1) and (b)(1)(B) and one count of possession of
firearms in furtherance of the drug trafficking offense in
violation of 18 U.S.C. § 924(c). Habeck pleaded guilty to the
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first count, but elected to go to trial on the second count.
The jury convicted him, and this appeal followed.
II.
Habeck argues principally that there was insufficient
evidence to support his conviction. This court reviews the
sufficiency of evidence underlying a criminal conviction “by
determining whether there is substantial evidence in the record,
when viewed in the light most favorable to the government, to
support the conviction.” United States v. Jaensch, 665 F.3d 83,
93 (4th Cir. 2011) (internal quotation marks omitted). We will
decline to overturn a jury verdict if “any rational trier of
fact could have found the essential elements of the crime beyond
a reasonable doubt.” United States v. Dinkins, 691 F.3d 358,
387 (4th Cir. 2012) (internal quotation marks omitted).
In order to convict Habeck, the jury was required to
determine that he had possessed a firearm in furtherance of a
drug trafficking crime. This court held in United States v.
Lomax, 293 F.3d 701, 705 (4th Cir. 2002), that whether or not a
firearm is used “in furtherance” of a crime is “ultimately a
factual question” entrusted to the fact-finder. We noted in
Lomax several factors that a jury might consider in deciding
whether there was a connection between the possession of a
firearm and a drug trafficking crime. These included, inter
alia, “the type of drug activity that is being conducted,
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accessibility of the firearm, the type of weapon, whether the
weapon is stolen, the status of the possession (legitimate or
illegal), whether the gun is loaded, proximity to drugs or drug
profits, and the time and circumstances under which the gun is
found.” Id. (internal quotation marks omitted).
In light of these factors, sufficient evidence was adduced
at trial to sustain the conviction. Habeck admitted that he
grew and sold high-grade marijuana as well as owned firearms.
Unrebutted testimony at trial established that three firearms
were found in the same house as the drugs, concealed
strategically in different places known only to Habeck. All
three weapons were loaded when they were found, two were ready
to fire with a single pull of the trigger, and one of those was
loaded with particularly deadly “hollow point” bullets.
Moreover, Habeck admitted he was “paranoid that somebody may try
to rob” him, and amply demonstrated that by screwing shut every
window and every door but one in the house. The jury could
certainly have concluded that his apprehension stemmed from a
perception that his house was an attractive target for robbers
due to the presence of expensive equipment and 397 plants that
were producing high-grade marijuana, and that he kept his
firearms to defend his operation. When taken together and
viewed in a light most favorable to the government, this
evidence was sufficient for a rational jury to determine that
Habeck possessed the guns in furtherance of trafficking drugs.
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We find unconvincing Habeck’s argument that a rational jury
could determine only that the above evidence showed that he had
both guns and drugs in the same house. Although the defendant
offered testimony that he owned the guns for self-defense and
hunting, the jury was not obligated to accept his explanation.
We decline to overturn the jury on this quintessentially factual
question, Lomax, 293 F.3d at 706, and it follows that the
conviction rested on sufficient evidentiary support.
III.
Habeck claims that the district court erred in instructing
the jury on the “in furtherance” element of 18 U.S.C. § 924(c).
We review a district court’s decision on whether or not “to give
a jury instruction and the content of an instruction” for abuse
of discretion. United States v. Ellis, 121 F.3d 908, 923 (4th
Cir. 1997) (internal quotation marks omitted). We do not review
an instruction in isolation, and “will not reverse provided that
the instructions, taken as a whole, adequately state the
controlling law.” United States v. Ryan-Webster, 353 F.3d 353,
364 n.17 (4th Cir. 2003) (internal quotation marks omitted).
In this case, the district court instructed the jury
regarding the “in furtherance” element as follows:
The term “to possess a firearm in furtherance of a
drug trafficking crime” means that the firearm helped
forward, advance or promote the commission of the drug
trafficking crime. The mere possession of a firearm
at the scene of such a crime is not sufficient under
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this definition. The government must present evidence
which proves beyond a reasonable doubt that the
firearm played some part in furthering the crime. In
making its determination, the jury may consider the
evidence as to the ways in which a firearm might be
involved in committing the crime of drug trafficking.
In addition, the jury may consider but is not limited
to considering the type of firearm, the accessibility
of the firearm, the firearm’s proximity to drugs or
drug profits, the circumstances under which the
firearm was found, and the nature of the drug
trafficking alleged in this case.
J.A. 296.
Habeck first argues that this instruction was needlessly
cumulative. We disagree. It was not an abuse of discretion for
the district court to provide some guidance to the jury rather
than assuming that the jury would come to an accurate
understanding of the law on its own. Here, the district court
simply offered several relevant factors and did not imply to the
jury how it should decide on those factors. It also accurately
described the governing legal principles.
Second, Habeck contends that the inclusion of several of
the Lomax factors in the instruction prejudiced him by focusing
the jury on the government’s theory of the case. However, it is
far-fetched to conclude that the jury was unduly focused on the
government’s theory as a result of this instruction. As an
initial matter, the record reveals that the district court
actually adopted language proposed by Habeck almost verbatim for
the first half of the instruction. The instruction explained
that the “in furtherance” element “means that the firearm helped
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forward, advance or promote the commission of the drug
trafficking crime,” that “mere possession of a firearm at the
scene of such a crime is not sufficient under this definition,”
and that the “government must present evidence which proves
beyond a reasonable doubt that the firearm played some part in
furthering the crime.” J.A. 296. Habeck thus cannot argue that
he did not have a substantial impact on the shape of the final
instruction, and we are hard pressed to imagine how the addition
of two sentences, which did no more than recite existing law,
prejudiced him.
Moreover, the district court took great care to instruct
the jury on its decisive role. It instructed the jury that
“[n]othing said in these instructions . . . is to suggest or
convey to you in any way or manner any intimation as to what
verdict I think you should return.” J.A. 299. The judge
plainly preserved the primacy of the jury’s fact-finding role:
“What the verdict shall be is the exclusive duty and
responsibility of the jury. As I have told you many times, you
are the sole judges of the facts.” Id.Taken in their totality, the instructions were well within
the district court’s discretion. We thus affirm the judgment.
AFFIRMED
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