United States v. Mosley ( 2006 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA,  No. 05-30488
Plaintiff-Appellee, D.C. No.
v.  CR-04-00075-A-
CHARLES J. MOSLEY, JR., JKS
Defendant-Appellant.
 OPINION
Appeal from the United States District Court
for the District of Alaska
James K. Singleton, Chief Judge, Presiding
Argued and Submitted
July 26, 2006—Anchorage, Alaska
Filed October 11, 2006
Before: Alex Kozinski, Marsha S. Berzon, and
Richard C. Tallman, Circuit Judges.
Opinion by Judge Tallman
17511
UNITED STATES v. MOSLEY 17513
COUNSEL
Michael D. Dieni, Assistant Federal Defender, Anchorage,
Alaska, for the defendant-appellant.
Jo Ann Farrington, Assistant United States Attorney, Anchor-
age, Alaska, for the plaintiff-appellee.
17514 UNITED STATES v. MOSLEY
OPINION
TALLMAN, Circuit Judge:
Charles J. Mosley, Jr. was found guilty by a jury of posses-
sion of crack cocaine with intent to distribute under 21 U.S.C.
§§ 841(a)(1), (b)(1)(B) (Count One), and possession of a
firearm in furtherance of a drug trafficking offense under 18
U.S.C. § 924(c)(1)(A) (Count Two). He appeals his conviction.1
We have jurisdiction pursuant to 28 U.S.C. § 3231, and we
affirm.
I
On May 16, 2004, officers from the Anchorage, Alaska,
police department responded to a single-car accident involv-
ing Mosley. When the officers arrived at the scene they found
Mosley wandering outside his vehicle; he appeared to be ner-
vous, sweating, and under the influence of a controlled sub-
stance. Police discovered an outstanding warrant for his arrest
and took him into custody. An officer searched Mosley’s per-
son and discovered $2,300 in cash.
Before towing Mosley’s car, Officer Francis T. Stanfield
1
Mosley raises three issues in this appeal: (1) whether the district court
clearly erred in finding that an Anchorage police officer did not wilfully
or intentionally misrepresent the outcome of a field test on an affidavit in
support of a drug search warrant for Mosley’s apartment; (2) whether
there was insufficient evidence such that no rational trier of fact could
have found that Mosley possessed firearms in furtherance of a drug traf-
ficking offense; and (3) whether the district court abused its discretion in
denying Mosley’s motion for mistrial after the jury received improper evi-
dence.
In this opinion we only address the second issue, which concerns
whether the government presented evidence sufficient to support the
charge of possession of a firearm in furtherance of a drug trafficking
offense. We address the remaining two issues in a separate unpublished
memorandum disposition filed simultaneously with this opinion.
UNITED STATES v. MOSLEY 17515
searched the ground outside the vehicle. Under the car, Offi-
cer Stanfield found the plastic lid of a coffee grinder. The
officer noticed a “brownish crystalline” residue with green
flecks on the lid, which he believed to be methamphetamine
and marijuana. Officer Stanfield retrieved a field test kit sup-
plied by the Anchorage Police Department from his police
vehicle. Both tests Officer Stanfield used returned a positive
result. When questioned, Mosley admitted the coffee grinder
lid was his. Officer Stanfield then applied for and received a
warrant from a state court judge to search Mosley’s apartment
for the limited purpose of finding the coffee grinder that
matched the lid.2
While searching the small apartment, officers found drugs,
a gun, and ammunition in plain view. Officer Stanfield subse-
quently applied for a broader search warrant. During the sec-
ond, more thorough, search of Mosley’s apartment, police
found two additional firearms, cocaine, crack cocaine, and
assorted evidence of drug trafficking. Officer Stanfield
described during his testimony what the police found during
the two searches:
(1) On a small shelf just to the left of the front
door, officers found a Beretta Model 950 BS—
a .22-cal. semi-automatic handgun, loaded with
bullets in the magazine and one in the chamber,
with the hammer cocked and the safety on.
(2) In a closet to the left of the front door, officers
found a black backpack holding two semi-
automatic handguns—a Glock model 26, 9-
mm. caliber, threaded for use with a silencer,
with live rounds in the chamber and the maga-
zine, and a Remington Rand Model 1911, .45-
2
Mosley originally gave officers an incorrect apartment number. Before
applying for the search warrant, Officer Stanfield identified the correct
apartment.
17516 UNITED STATES v. MOSLEY
cal. semi-automatic pistol with rounds in the
magazine. White powder residue later con-
firmed to be cocaine was found on the back-
pack.
(3) In the kitchen, officers found the coffee grinder
that matched the lid Officer Stanfield had
found at the accident scene, a digital scale, a
plastic container holding a large amount of
what was later determined to be cocaine, pack-
aging materials, a bag of what was later deter-
mined to be crack cocaine, approximately
$7,000 in cash, ammunition for various fire-
arms, and evidence of crack cocaine produc-
tion.
(4) In the main living area, officers found ammuni-
tion for several different firearms.
The government argued during trial that Mosley’s apart-
ment was not a home, but a “stash house,” used as a base to
manufacture and package crack cocaine and as a place to store
his drugs, drug paraphernalia, and drug proceeds. The govern-
ment presented substantial evidence of crack cocaine produc-
tion, along with bills and other papers found in the apartment
that were addressed to Mosley at a different address. The evi-
dence demonstrated that the apartment was sparsely furnished
and had no bed and little furniture, although it contained sev-
eral personal items and food. The government presented
expert testimony to educate the jury on the connection
between drug dealing and weapons and the significance of the
firearms found near the entrance of a home or place of busi-
ness. In his defense, Mosley argued that the apartment was
not a stash house for drug production but was his home, and
that the three firearms found at or near its entrance were sim-
ply a collection of guns used for sport or legitimate self-
protection and not in any way related to running his crack
cocaine business.
UNITED STATES v. MOSLEY 17517
Following submission of the prosecution’s evidence at trial,
Mosley moved for acquittal on Count Two, arguing that there
was insufficient evidence for any jury to convict him on this
count. The district court denied the motion to dismiss under
Federal Rule of Criminal Procedure 29 and submitted the case
to the jury. The jury convicted Mosley on both counts. He
timely appeals his conviction.
II
Because Mosley properly preserved his objection to the
sufficiency of the evidence by making a timely Rule 29
motion at the close of the prosecution’s case-in-chief, we
review the district court’s denial of a motion to acquit de
novo. United States v. Carranza, 289 F.3d 634, 641 (9th Cir.
2002). We must determine “whether, after viewing the evi-
dence in the light most favorable to the prosecution, any ratio-
nal trier of fact could have found the essential elements of the
crime beyond a reasonable doubt.” Jackson v. Virginia, 443
U.S. 307, 319 (1979) (emphasis in original).
In relevant part, 18 U.S.C. § 924(c)(1)(A) provides:
[A]ny person who, during and in relation to any
crime of violence or drug trafficking crime . . . uses
or carries a firearm, or who, in furtherance of any
such crime, possesses a firearm, shall, in addition to
the punishment provided for such crime of violence
or drug trafficking crime—(i) be sentenced to a term
of imprisonment of not less than 5 years.
[1] To prove that Mosley possessed a firearm in furtherance
of a drug trafficking crime in violation of § 924(c)(1)(A), the
government must show that (1) Mosley possessed crack
cocaine with the intent to distribute, (2) Mosley possessed the
firearms, and (3) Mosley’s possession of the firearms was “in
furtherance” of the drug trafficking crime. See United States
v. Mann, 389 F.3d 869, 879 (9th Cir. 2004). Mosley contests
17518 UNITED STATES v. MOSLEY
only whether the government’s evidence sufficed to establish
the third “in furtherance” element.
A
We first articulated what it means to possess a firearm in
furtherance of a drug trafficking offense under § 924(c)(1)(A)
in United States v. Krouse, 370 F.3d 965 (9th Cir. 2004).
There, we reviewed a jury conviction on several drug and
firearms violations, including a violation of § 924(c)(1)(A).
Id. at 966. Police searched Krouse’s apartment and found five
high-caliber firearms, ammunition, 86.5 grams of cocaine,
and almost 150 pounds of marijuana. Id. The police discov-
ered the weapons in a dresser in Krouse’s home office “within
easy reach in a room containing a substantial quantity of
drugs and drug trafficking paraphernalia.” Id. at 968 & n.4.
[2] Krouse argued that there was insufficient evidence to
support his conviction under § 924(c)(1)(A), but we dis-
agreed. Id. at 966. In analyzing the scope of the statute, we
noted, “Evidence that a defendant merely possessed a firearm
at a drug trafficking crime scene, without proof that the
weapon furthered an independent drug trafficking offense, is
insufficient to support a conviction under § 924(c).” Id. at
967. We observed that supplementing evidence of possession
with expert testimony that drug traffickers often carry fire-
arms while doing business “presents a borderline case under
§ 924(c).” Id. Ultimately, we emphasized that a conviction
under the statute “requires proof that the defendant possessed
the weapon to promote or facilitate the underlying crime,” a
question that “turns on the intent of the defendant.” Id.
Krouse examined the eight-part test the Fifth Circuit uses
to help determine whether there is sufficient evidence to sup-
port a conviction under § 924(c)(1)(A).3 Id. (citing United
3
These eight factors are:
UNITED STATES v. MOSLEY 17519
States v. Ceballos-Torres, 218 F.3d 409, 415 (5th Cir. 2000);
United States v. Suarez, 313 F.3d 1287, 1292 (11th Cir.
2002)). We decided, however, that such a test was not helpful
in all cases since it did not “distinguish possession for the pro-
motion of drug trafficking from possession for other, perhaps
legitimate, purposes.” Id. at 968. This circuit has thus rejected
a “checklist” approach to determining whether a firearm was
possessed “in furtherance” of a drug trafficking offense. Id.
[3] Instead, we held in Krouse, that “sufficient evidence
supports a conviction under § 924(c) when facts in evidence
reveal a nexus between the guns discovered and the underly-
ing offense.” Id. This does not necessarily mean that if a fire-
arm is simply found somewhere on the same premises as
other evidence supporting the bases for operation of a drug
trafficking crime such a nexus is established. Id. Nor does the
fact that a firearm is loaded or unregistered, by itself, establish
a sufficient nexus between the crime and the gun. Id. These
factors, however, may be taken into account among all other
evidence adduced to establish a sufficient nexus. We con-
cluded that because five high-caliber firearms were found in
such close proximity to other evidence of drug trafficking,
sufficient evidence existed to support Krouse’s conviction
under § 924(c)(1)(A). Id.
Krouse was a fairly straight-forward case. Many cases,
including this one, involve more subtle factual situations, and
whether certain facts support a conviction under
§ 924(c)(1)(A) is sometimes ambiguous under current circuit
precedent. But, before we attempt to analyze the particular
the type of drug activity involved, the accessibility of the firearm,
the type of weapon, whether the weapon is stolen, whether the
defendant legally possessed the weapon, whether it is loaded, the
proximity of the weapon to the drugs, and the time and circum-
stances under which the gun is found.
Id. at 967 (citation omitted).
17520 UNITED STATES v. MOSLEY
facts of this case, we look at Mann, the leading case in our
circuit in which we determined that insufficient evidence
existed to support a conviction under § 924(c)(1)(A).
B
In Mann, we held that, when guns were in a locked safe in
a truck, the key to the truck was in a different location from
the drugs, and the truck was not immediately accessible to the
area where the defendants kept their drugs, there was an
insufficient nexus between the guns and the underlying drug
trafficking offense. Id. at 880. The defendants had set up a
methamphetamine lab at a campsite. Id. at 872. When police
searched the campsite, they found the lab, which consisted of
a “sleeping tent” and a “cooking tent.” Id. at 872-73. Police
also searched the defendants’ pickup truck, where they dis-
covered a semi-automatic pistol inside a locked safe, a loaded
“pen gun,” ammunition, thirty pseudoephedrine pills, and
other drug paraphernalia. Id. at 873. All evidence of drug traf-
ficking was found in the tents. Id.
Mann held Krouse not controlling because of critical fac-
tual differences. Because the firearms in Mann were locked
inside a safe with the key in the sleeping tent, the facts “ren-
der[ed] it more difficult to determine whether Appellants’
possession was for the promotion of drug trafficking, or
whether it furthered other, perhaps legitimate, purposes.” Id.
at 879. We declined to establish a rule that, if a particular type
of gun is “inherently dangerous and generally lacking in use-
fulness except for violent and criminal purposes,” then pos-
sessing such a weapon would satisfy the “in furtherance”
element. Id. at 880. And we made clear that merely possess-
ing a firearm contemporaneously with drug manufacture is
insufficient to establish possession in furtherance of a drug
trafficking offense, as to so hold would turn the crime into a
strict liability crime. Id. Instead we held that there must be
some specific evidence that the possession furthered the
underlying offense. Id. However, the nature of the firearm and
UNITED STATES v. MOSLEY 17521
the dual possession of firearms and drug trafficking parapher-
nalia are two more factors that may be considered in our anal-
ysis.
C
[4] More recently, in United States v. Rios, 449 F.3d 1009(9th Cir. 2006), we held that insufficient evidence existed to
support a conviction under § 924(c)(1)(A), where police
found an unloaded sawed-off shotgun at the residence of a
drug dealer, but found no drugs or drug trafficking parapher-
nalia at that residence. Id. at 1010-11. The court determined
that, under Krouse, “[w]hether the requisite nexus is present
may be determined by examining, inter alia, the proximity,
accessibility, and strategic location of the firearms in relation
to the locus of drug activities.” Id. at 1012 (citing Krouse, 370
F.3d at 968).
In addition, we examined the legislative history of
§ 924(c)(1), which was amended in 1998 to include the “in
furtherance” language. Id. at 1013. Specifically, we noted that
possession in furtherance of a drug trafficking offense must
include “more conduct under the statute than strict ‘use’ or
‘carrying.’ ” Id. (quoting H.R. Rep. No. 105-344, at 6 (1997)).
“[T]he government must illustrate through specific facts,
which tie the defendant to the firearm, that the firearm was
possessed to advance or promote the criminal activity.” Id.
(quoting H.R. Rep. No. 105-344, at 12.)
In Rios, the government presented general evidence regard-
ing the use of sawed-off shotguns and the common practice
of drug dealers. Id. at 1014. An expert witness testified that
drug dealers use firearms for protection and intimidation. Id.
The government presented particularized evidence seeking to
establish a connection between the firearm and the drug con-
spiracy at issue, but could not establish that the firearm was
ever present at the location of the drug deals or other drug
activities or that the dealer sold illegal drugs out of his resi-
17522 UNITED STATES v. MOSLEY
dence. Id. at 1014-15. As in Mann, the connection between
the underlying drug trafficking crime and the firearm was
held to be too tenuous.
III
Here, we are presented with a factual situation that falls
between those in Krouse, Mann, and Rios. We hold that the
evidence suffices to support a conviction under § 924(c)
(1)(A). There can be little doubt that Mosley’s apartment was
the base of operations for crack cocaine production and pack-
aging. The substantial sums of cash and the general lack of
furniture and personal items support the government’s theory
that the apartment was a textbook example of a stash pad. To
determine, however, whether the evidence sufficed to estab-
lish the requisite “nexus” between the three firearms and
Mosley’s illegal drug trafficking requires us to consider the
totality of the circumstances based on the evidence submitted
at trial.
Mosley’s kitchen was littered with cocaine, crack, and drug
paraphernalia used to package and distribute drugs, along
with approximately $7,000 in cash. Police found three loaded
semi-automatic handguns at or near the entrance, one of
which was cocked. Although the safety of the cocked gun was
activated, a rational jury could easily conclude it was ready
for immediate use. Rounds of ammunition remained in the
magazines of all these weapons and in the chambers of two
of the handguns. Police discovered cocaine residue on the
inside of the backpack that contained two of the weapons.
One pistol was threaded for use with a silencer. Mosley kept
ammunition for several guns in both the kitchen and the living
area. The government presented general expert testimony
about a typical drug dealer’s use of firearms as well as the
importance of Mosley’s weapons having been stored next to
the entrance, where any intruder looking to steal drugs or drug
proceeds could easily be stopped.
UNITED STATES v. MOSLEY 17523
[5] Taken together, these facts paint the picture of a drug
dealer ready to threaten or fire upon any would-be intruder
who might enter his base of operations to steal drugs or drug
proceeds. It is not necessary for the government to prove that
Mosley sold drugs at his apartment, as long as he manufac-
tured and stored the drugs and drug proceeds at that location.
The jury could infer that Mosley advanced his drug operation
by using the guns to secure his merchandise and profits so he
could continue his business. Additionally, although the jury
could reasonably believe that the apartment was not a resi-
dence but solely a production base for crack cocaine, it suf-
fices that the apartment was a production base, whether
Mosley lived there or not.
[6] Mosley contends that the weapons were too far from the
location of the drug manufacturing to establish a sufficient
nexus. Although proximity of the firearms to the illegal activ-
ity is one factor to consider, we have never held that the drugs
and guns must be in the same room. It is enough that the guns
were strategically located at the entrance of Mosley’s apart-
ment. The jury could reasonably infer that a suspicious knock
at the door, or a noise from outside, would send Mosley to the
entrance of the apartment where he could grab the Baretta
accessible on the adjacent shelf or retrieve a larger caliber
weapon from the nearby backpack. The apartment is rela-
tively small, and it would take only seconds to get from the
kitchen to the entrance. We hold the evidence sufficed to per-
mit any rational trier of fact to find beyond a reasonable doubt
the essential elements of § 924(c)(1)(A).
We reiterate that this inquiry is fact specific, and, as in
Krouse, we decline once again to adopt a checklist approach.
There are simply too many possible factual scenarios likely to
defy any test we may prognosticate based on so few cases in
our jurisprudence. However, several factors may combine to
provide a sufficient connection between the firearm and the
underlying drug trafficking offense. Ultimately, in cases that
present more complex, subtle factual scenarios, it is the total-
17524 UNITED STATES v. MOSLEY
ity of the circumstances, coupled with a healthy dose of a
jury’s common sense when evaluating the facts in evidence,
which will determine whether the evidence suffices to support
a conviction under § 924(c)(1)(A). The record here supports
the jury’s decision.
IV
The district court properly denied Mosley’s motion to
acquit on Count Two following the submission of the prose-
cution’s evidence.
AFFIRMED.