United States v. Norwood ( 2009 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA,  No. 08-30050
Plaintiff-Appellee,
v.  D.C. No.
CR-06-00091-LRS
ROBERT LEWIS NORWOOD,
OPINION
Defendant-Appellant.

Appeal from the United States District Court
for the Eastern District of Washington
Lonny R. Suko, District Judge, Presiding
Argued and Submitted
January 22, 2009—Seattle, Washington
Filed February 18, 2009
Before: Thomas M. Reavley*, Senior Circuit Judge, and
Richard C. Tallman and Milan D. Smith, Jr., Circuit Judges.
Opinion by Judge Milan D. Smith, Jr.
*The Honorable Thomas M. Reavley, Senior United States Circuit
Judge for the Fifth Circuit, sitting by designation.
1903
1906 UNITED STATES v. NORWOOD
COUNSEL
Tracy A. Staab and Christina Hung, Federal Defenders of
Eastern Washington & Idaho, Spokane, Washington, for the
defendant-appellant.
James A. McDevitt and K. Jill Bolton, United States Attor-
ney, Spokane, Washington, for the plaintiff-appellee.
OPINION
MILAN D. SMITH, JR., Circuit Judge:
Defendant-Appellant Robert L. Norwood appeals his jury
conviction of possession of cocaine with intent to distribute in
violation of 21 U.S.C. § 841(a)(1) and possession of a firearm
in furtherance of a drug trafficking crime in violation of 18
U.S.C. § 924(c)(1). On appeal, Norwood claims violation of
his Sixth Amendment right to confront his accuser and viola-
tion of his due process rights both in trial and at sentencing.
Norwood also claims that the evidence was insufficient to
convict him for possession of a firearm in furtherance of a
UNITED STATES v. NORWOOD 1907
drug trafficking crime. We have jurisdiction under 28 U.S.C.
§ 1291 and 18 U.S.C. § 3742, and we affirm Norwood’s con-
viction and sentence.
FACTUAL AND PROCEDURAL BACKGROUND
In April of 2006, police responded to a domestic violence
call in Spokane, Washington. Upon entering the home, the
police encountered Norwood in the bedroom lying on his bed.
They smelled marijuana, and asked Norwood to step outside.
In response to police questioning, Norwood admitted he had
“just smoked a joint,” but denied having any other drugs in
the bedroom. The officers then arrested Norwood, and while
searching him discovered 0.86 grams of crack cocaine and
over $2500 dollars in his pockets.
After obtaining a warrant, the police searched Norwood’s
home and vehicle. In the car, police found $7000 in cash, sep-
arated into $1000 tightly wrapped bundles. In the bedroom,
the police discovered two baggies containing a total of 7.7
grams of cocaine base and a digital scale dusted with drug
residue underneath the dresser next to the bed. Police also
found a wood box containing several “marijuana blunts,” or
butts of marijuana joints. In the closet, police found 42.4
grams of harvested marijuana in an ice cream box. Between
the mattress and the box spring of the bed, police found a 25
caliber semiautomatic handgun. The police did not find any
other drug paraphernalia.
On August 2, 2007, Norwood was indicted in federal dis-
trict court on three counts: (1) being a felon in possession of
a firearm in violation of 18 U.S.C. §§ 922(g)(1) and 924(e);
(2) possessing cocaine with the intent to distribute in violation
of 21 U.S.C. §§ 841(a)(1), 841(b)(1)(B), and 18 U.S.C. § 2;
and (3) possessing a firearm in furtherance of a drug traffick-
ing crime in violation of 18 U.S.C. § 924(c)(1). The govern-
ment eventually dismissed the first count and proceeded to
trial on the second and third counts. Norwood made a Federal
1908 UNITED STATES v. NORWOOD
Rule of Criminal Procedure 29 motion to dismiss at the close
of the government’s case, another at the close of the defen-
dant’s case, and still a third following trial, each of which was
denied.
As part of its case-in-chief, the government presented an
affidavit prepared by Jodi Arndt, an employee at the Wash-
ington Department of Employment Security, which certified
that “a diligent search of the department’s files failed to dis-
close any record of wages reported for [Norwood] from Janu-
ary 1, 2004 through March 31, 2007.” Although Arndt did not
appear in person to testify, the court admitted her affidavit as
circumstantial evidence that Norwood had no legal source for
the large amounts of cash that were found on his person and
in his car.
During closing argument, Norwood’s counsel argued to the
jury that the drugs found in Norwood’s apartment were for
personal use, and suggested that Norwood had been smoking
the crack through the marijuana blunts that were found on the
scene, but which had not been seized or tested. The prosecutor
responded to the defense’s comments as follows: “When we
talk about those blunts, yeah, it would have been real nice if
the police got those. The police didn’t get those, but they
admitted that, but you know what, the defendant didn’t tell
them that he was smoking the marijuana with the crack
cocaine.” The defense immediately objected and moved for a
mistrial on the basis that Norwood’s right to silence had been
violated. The district court sustained the objection and
directed the jury not to consider the prosecution’s comment.
The court denied the motion for a mistrial.
On October 31, 2007, the jury returned a verdict of guilty
on both counts. The district court sentenced Norwood to 120
months in prison for Count 2 and 60 months for Count 3, to
run consecutively. Norwood appealed to this court.
UNITED STATES v. NORWOOD 1909
STANDARD OF REVIEW
Norwood alleges that his Sixth Amendment right to con-
front his accusers was violated when the district court admit-
ted into evidence a written affidavit without requiring the
affiant to testify on the stand. We review admission of a
declarant’s out-of-court statements de novo to test for possible
violations of the Confrontation Clause. Lilly v. Virginia, 527
U.S. 116, 137 (1999).
Norwood also alleges that the prosecution’s reference to the
fact that he had not spoken with police officers regarding pos-
sible use of cocaine in the marijuana blunts violated his due
process rights. We review a claim that the prosecution’s com-
ment has violated the defendant’s right to silence de novo.
United States v. Bushyhead, 270 F.3d 905, 911 (9th Cir.
2001). If the prosecution’s comment is determined to be
improper, we then apply harmless error review. Id.Finally, Norwood argues that the evidence was insufficient
to convict him on the count of possession of a firearm in fur-
therance of a drug trafficking crime. When the defendant has
moved for a judgment of acquittal after the close of evidence,
this court reviews denial of the motion de novo. United States
v. Rios, 449 F.3d 1009, 1011 (9th Cir. 2006). We will not
overrule a conviction if “ ‘after viewing the evidence in the
light most favorable to the prosecution, any rational trier of
fact could have found the essential elements of the crime
beyond a reasonable doubt.’ ” Id. (quoting Jackson v. Vir-
ginia, 443 U.S. 307, 319 (1979)).
DISCUSSION
A. Claimed Violation of the Norwood’s Sixth
Amendment Rights
[1] The Sixth Amendment of the U.S. Constitution guaran-
tees an accused the right “to be confronted with the witnesses
1910 UNITED STATES v. NORWOOD
against him.” U.S. CONST. amend. VI. The Supreme Court has
interpreted this right to apply to out-of-court statements as
well as in-court testimony. Crawford v. Washington, 541 U.S.
36, 50-51 (2004). As the Court in Crawford summarized,
“[t]estimonial statements of witnesses absent from trial have
been admitted only where the declarant is unavailable, and
only where the defendant has had a prior opportunity to cross-
examine.” Id. at 59.
The Supreme Court has yet to define the extent to which
rights under the Confrontation Clause are applied to testimo-
nial and nontestimonial statements. The opinion in Crawford
traces the history of the Sixth Amendment and identifies
“[s]tatements taken by police officers in the course of interro-
gations” as testimonial. Id. at 51-52. However, the Crawford
Court declined to take up the issue of nontestimonial state-
ments, indicating only that “it is wholly consistent with the
Framers’ design to afford the States flexibility in their devel-
opment of hearsay laws . . . as would an approach that
exempted such [nontestimonial] statements from Confronta-
tion Clause scrutiny altogether.” Id. at 68. The Court then
declined the opportunity “to spell out a comprehensive defini-
tion of ‘testimonial,’ ” noting only that the term would apply
“at a minimum to prior testimony at a preliminary hearing,
before a grand jury, or at a former trial; and to police interro-
gations.” Id.[2] This Circuit has interpreted the Supreme Court’s ruling
in Crawford to allow the admission of nontestimonial state-
ments without scrutiny under the Confrontation Clause.
United States v. Cervantes-Flores, 421 F.3d 825, 831 (9th Cir.
2005). Our opinion in Cervantes-Flores also concluded that a
certificate of nonexistence of a record (CNR), which con-
tained language virtually identical to the affidavit at issue
here, is nontestimonial in nature because it is similar to a busi-
ness record. Id. at 832 (citing United States v. Rueda-Rivera,
396 F.3d 678, 680 (5th Cir. 2005) for the same conclusion).
As we explained,
UNITED STATES v. NORWOOD 1911
[b]y issuing the CNR, [the affiant] certified that a
record that the INS would keep in the course of its
regularly conducted activities did not exist in the
agency’s files. She certified this fact in the same
manner that she would certify that such a record did
exist in those files and that it was an official record
of the INS.
Id. Although we recognized that the CNR in Cervantes-Flores
was prepared for litigation, which is “one of the circum-
stances that Crawford emphasizes as a concern of the Sixth
Amendment,” it addressed a class of documents that were not
prepared for litigation, and were better classified as business
records. Id. at 832-33. The CNR served merely to inform the
court that no public record kept in the ordinary course of busi-
ness could be found.
[3] Cervantes-Flores controls this case. The affiant here
prepared a CNR indicating that there was no record that Nor-
wood had received taxable wages for the period in question.
Such a record would have been among the business records
of the Washington State Employment Security Department
kept in the ordinary course of business, if Norwood had been
legally employed in Washington during that time. Under the
reasoning of Cervantes-Flores, the CNR in this case is not
testimonial and is admissible under the Sixth Amendment.
Norwood urges this court to reconsider Cervantes-Flores in
light of the Supreme Court’s holding in Davis v. Washington,
547 U.S. 813 (2006). Norwood argues that Davis stands for
the proposition that “a certificate, created by a government
employee for the sole purpose of establishing a fact at trial,
is clearly testimonial.” However, Davis involved statements
garnered by police interrogation of domestic violence victims
who then failed to appear in court. According to Davis:
Statements are nontestimonial when made in the
course of police interrogation under circumstances
1912 UNITED STATES v. NORWOOD
objectively indicating that the primary purpose of the
interrogation is to enable police assistance to meet an
ongoing emergency. They are testimonial when the
circumstances objectively indicate that there is no
such ongoing emergency, and that the primary pur-
pose of the interrogation is to establish or prove past
events potentially relevant to later criminal prosecu-
tion.
Davis, 547 U.S. at 822. Thus, the Davis Court limited its
holding to factual situations involving police interrogation,
and its holding does not undermine this court’s ruling in
Cervantes-Flores. Accordingly, we affirm the district court’s
decision to admit Arndt’s affidavit.
B. Claimed Violation of Norwood’s Due Process Rights
at Trial and Sentencing
Norwood charges that his due process rights were violated
both at trial and at sentencing. First, he argues that comments
made by the prosecution during closing arguments violated
his Fifth Amendment right to silence. Second, he argues that
the allegedly arbitrary sentencing distinction between crack
and powder cocaine violates the Due Process Clause of the
Fifth Amendment as well as the Eighth Amendment prohibi-
tion against cruel and unusual punishment. We address these
arguments in turn.
The Fifth Amendment protects a defendant’s right to
remain silent by assuring that “silence will carry no penalty,”
and that the prosecution cannot use a defendant’s silence to
imply guilt. Doyle v. Ohio, 426 U.S. 610, 618 (1976). As
acknowledged by this court, “[t]he privilege against self-
incrimination prevents the government’s use at trial of evi-
dence of a defendant’s silence — not merely the silence itself,
but the circumstances of that silence as well.” Bushyhead, 270
F.3d at 913.
UNITED STATES v. NORWOOD 1913
[4] However, where “the prosecutor’s reference to the
defendant’s opportunity to testify is a fair response to a claim
made by defendant or his counsel,” there is no Fifth Amend-
ment violation. United States v. Robinson, 485 U.S. 25, 32
(1988). In Robinson, the defense counsel argued several times
in his closing argument that the government had denied Rob-
inson the opportunity to explain his actions. Id. at 27. The
prosecutor responded by indicating that Robinson could have
explained himself by testifying. The Supreme Court ruled that
Robinson’s Fifth Amendment Rights were not thereby
infringed because this response did not “treat the defendant’s
silence as substantive evidence of guilt,” but rather answered
the defense’s claim that Robinson’s trial was unfair. Id. at 31-
32.
[5] Similarly, in this case, the prosecutor merely responded
to Norwood’s implication of investigative misconduct.
Defense counsel implied that there was no evidence that Nor-
wood had used crack cocaine only because the police had
failed to test the box of marijuana blunts. The prosecutor’s
comment was made to defend the police officers’ decision not
to test the marijuana blunts, not to suggest that Norwood’s
silence was substantive evidence of his guilt.
[6] We will not reverse a lower court’s conviction “ ‘when
a prosecutorial comment is a single, isolated incident, does
not stress an inference of guilt from silence as the basis for
conviction, and is followed by a curative instruction.’ ”
United States v. Smith, 282 F.3d 758, 769 (9th Cir. 2002)
(quoting United States v. Tarazon, 989 F.2d 1045, 1051 (9th
Cir. 1993)); see also United States v. Foster, 985 F.2d 466,
468 (9th Cir. 1993) (ruling that “there is no Doyle violation
if the district court promptly sustains a timely objection to a
question concerning post-arrest silence, and gives a curative
jury instruction”). In this case, the prosecution’s allegedly
violative comment was a single incident in closing argument,
and as indicated above, served primarily to refute an implied
claim of investigative carelessness. The district court immedi-
1914 UNITED STATES v. NORWOOD
ately sustained Norwood’s objection to the comment and pro-
vided a curative instruction. If any error existed on this
record, it was harmless. Based on these facts, we affirm Nor-
wood’s conviction.
The Fifth Amendment also guarantees a defendant the right
to due process at sentencing. Norwood argues that his sen-
tence, authorized by 21 U.S.C. § 841(b), is cruel and unusual
in violation of the Eighth Amendment and based on an arbi-
trary distinction that violates the Due Process Clause of the
Fifth Amendment. See Chapman v. United States, 500 U.S.
453, 465 (1991). Norwood acknowledges that we have previ-
ously addressed this issue in United States v. Harding, 971
F.2d 410 (9th Cir. 1992). However, he raises the issue in this
appeal because “[n]o issue in the world of federal sentencing
has sparked more controversy or engendered more criticism
than the punishment scheme for crack and powder cocaine.”
Steven L. Chanenson & Douglas A. Berman, Federal
Cocaine Sentencing in Transition, 19 FED. SENT. R. 291, 291
(2007).
[7] Under this court’s precedent, Norwood must show that
there is not even a debatable basis for the distinction between
crack and powder cocaine in order to successfully challenge
Congress’ statutory distinction between these two forms of
cocaine base. Harding, 971 F.2d at 413 (citing United States
v. Carolene Prods. Co., 304 U.S. 144, 154 (1938)). He has
failed to do so.
In his brief, Norwood cites a series of Special Reports to
Congress provided by the Sentencing Commission for the past
thirteen years. Although these reports indicate that some of
the alleged differences between crack and powder cocaine
cited by Congress in 1986 have been scientifically disproven,
the reports still suggest that the two forms have distinctive
qualities and that there are reasons for treating the two forms
differently. See United States Sentencing Commission, 2007
UNITED STATES v. NORWOOD 1915
REPORT TO CONGRESS: COCAINE AND FEDERAL SENTENCING
POLICY (May 2007).
[8] As Norwood himself seems to acknowledge, in a case
such as this it is the role of Congress to alter the relevant stat-
utes, and we remain bound by the statutes currently in effect
so long as Congress has a debatable rationale for preserving
its rational-basis distinction. Norwood has also failed to pro-
vide any persuasive rationale for why his sentence should be
considered cruel and unusual under the Eighth Amendment.
Accordingly, we affirm Norwood’s sentence.
C. Sufficiency of the Evidence
The standard of review for sufficiency of the evidence to
support a criminal conviction is well established. The
Supreme Court has long advised that a reviewing court is not
required to determine
whether it believes that the evidence at trial estab-
lished guilt beyond a reasonable doubt. Instead, the
relevant question is whether, after viewing the evi-
dence in the light most favorable to the prosecution,
any rational trier of fact could have found the essen-
tial elements of the crime beyond a reasonable
doubt.
Jackson, 443 U.S. at 319 (internal citation omitted).
To obtain a conviction under § 924(c)(1), the government
must show that the defendant’s possession of the firearm was
“in furtherance” of his drug crime. United States v. Lopez,
477 F.3d 1110, 1115 (9th Cir. 2007). As we noted in Rios,
449 F.3d at 1013, § 924(c)(1) was amended in 1998 to
employ the provision that the firearm be possessed “in fur-
therance of” the drug trafficking crime. This amendment
superceded the previous standard that the offender “use or
carry” a firearm “during and in relation to any . . . drug traf-
1916 UNITED STATES v. NORWOOD
ficking crime.” 18 U.S.C. § 924(c)(1) (1994), amended by 18
U.S.C. § 924(c)(1) (Supp. IV 1998). The amendment sought
to broaden the scope of § 924(c)(1) to include more conduct
than actually using or carrying the weapon during the course
of the drug trafficking offense. H.R. REP. NO. 105-344, at 6
(1997). See also Rios, 449 F.3d at 1013-14 (detailing the rea-
sons behind the alteration, including Congress’s disapproval
of Bailey v. United States, 516 U.S. 137 (1995) (defining
“use” to require active employment of a firearm)).
[9] However, “mere possession of a firearm by an individ-
ual convicted of a drug crime is not sufficient for a rational
trier of fact to convict” under § 924(c)(1). Rios, 449 F.3d at
1012. A conviction is only supported by sufficient evidence
when the facts “reveal a nexus between the guns discovered
and the underlying offense.” United States v. Krouse, 370
F.3d 965, 968 (2004). To prove this nexus, the 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. at 967 (quoting H.R. REP.
NO. 105-334, at 12 (1997)). Expert testimony indicating that
drug traffickers “generally use firearms to further their drug
crimes” is not sufficient. Rios, 449 F.3d at 1014.
In cases where the underlying drug offense is possession
with intent to distribute, the government has provided ade-
quate evidence of a nexus between the firearm and the drug
crime by showing that the firearm is in the same room and
“within easy reach” of a “substantial quantity of drugs and
drug trafficking paraphernalia.” Krouse, 370 F.3d at 968; see
also Lopez, 477 F.3d at 1115 (“Because Lopez’s drug crime
was possession of cocaine with intent to distribute, evidence
establishing the ready accessibility of the gun while he was in
possession of a distributable amount of cocaine satisfied the
‘in furtherance’ requirement.”). In this case, while the quan-
tity of drugs is smaller and the circumstances establishing a
nexus are not as clear as those in Krouse or Lopez, we cannot
say that “[no] rational trier of fact could have found the essen-
UNITED STATES v. NORWOOD 1917
tial elements of the crime beyond a reasonable doubt.” Jack-
son, 443 U.S. at 319.
[10] The gun at issue in this case was found by the police
only a few feet from evidence that the jury found sufficient
to establish Norwood’s possession of cocaine with intent to
distribute conviction. Specifically, the police found a digital
scale, on which drug residue and Norwood’s fingerprints were
found, and 7.7 grams of cocaine packaged in two “eight ball”
sizes, which both parties stipulated is a commercial amount
that could be sold on the street. In addition, the police first
discovered Norwood lying on top of the mattress where the
gun was hidden, with over $2500 dollars in his pocket, along
with a smaller amount of cocaine, which witnesses testified
could still be considered a commercial amount. Given this
evidence, we affirm the district court’s ruling that “a reason-
able jury could infer that [Norwood] possessed the firearm in
furtherance of the trafficking of crack, specifically to protect
himself and his business.” Order Den. Mot. For J. of Acquit-
tal, United States v. Norwood, No. 06-091, (E.D. Wash.
2007).
AFFIRMED.