United States v. Lowery

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
UNITED STATES OF AMERICA, 
Plaintiff-Appellee,
v.  No. 02-4528
MICHAEL LEE LOWERY,
Defendant-Appellant.

Appeal from the United States District Court
for the Eastern District of North Carolina, at Wilmington.
James C. Fox, Senior District Judge.
(CR-01-11-FO)
Submitted: April 25, 2003
Decided: May 19, 2003
Before NIEMEYER and MICHAEL, Circuit Judges, and
HAMILTON, Senior Circuit Judge.
Affirmed by unpublished per curiam opinion.
COUNSEL
Thomas P. McNamara, Federal Public Defender, G. Alan DuBois,
Assistant Federal Public Defender, Jeanette Doran Brooks, Research
& Writing Attorney, Raleigh, North Carolina, for Appellant. Frank D.
Whitney, United States Attorney, Anne M. Hayes, Assistant United
States Attorney, Raleigh, North Carolina, for Appellee.
2 UNITED STATES v. LOWERY
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
OPINION
PER CURIAM:
Michael Lee Lowery was convicted by jury for maintaining a place
for the purpose of manufacturing, distributing, and using a controlled
substance, 21 U.S.C. § 856 (2000) (Counts One, Five, and Eight);
possession with the intent to distribute marijuana and cocaine, 21
U.S.C. § 841(a)(1) (2000) (Counts Two and Six); possession with
intent to distribute marijuana, 21 U.S.C. § 841(a)(1) (Count Nine);
possession of a firearm as a convicted felon, 18 U.S.C. § 922(g)(1)
(2000) (Counts Three, Seven, and Ten); and possession of a firearm
in furtherance of the drug trafficking crime charged in Count Two, 18
U.S.C. § 924(c)(1) (2000) (Count Four). The district court sentenced
Lowery to concurrent sentences of imprisonment of 262 months for
Counts Two, Three, Six, Seven, and Ten; 240 months for Counts One,
Five, and Eight; and 120 months for Count Nine. Additionally, the
district court imposed a consecutive sixty-month sentence on Count
Four, for an aggregate sentence of 322 months. Lowery asserts three
errors at trial. Finding no reversible error, we affirm.
First, Lowery asserts that the district court violated Fed. R. Civ. P.
30 when it revised the jury instructions during his closing argument.
He describes that the district court provided a conjunctive charge at
the charge conference prior to closing arguments and then modified
the instruction during closing arguments. Lowery contends that the
conjunctive instruction — he must possess marijuana and cocaine
with the intent to distribute, to be found guilty of the offense charged
in Counts Two and Six of the indictment — is a correct statement of
law. This court reviews de novo whether a district court has properly
instructed a jury on the statutory elements of an offense. See United
States v. Ellis, 121 F.3d 908, 923 (4th Cir. 1997).
The statute charged in Counts Two and Six, 21 U.S.C. § 841(a)(1),
criminalizes the possession of any one of numerous controlled sub-
UNITED STATES v. LOWERY 3
stances. Despite the fact that a defendant can be guilty of a violation
of § 841(a)(1) for possession with intent to distribute any one of many
illegal substances, when, as here, a defendant is charged with posses-
sion with intent to distribute more than one such substance, "federal
pleading requires that an indictment charge in the conjunctive to
inform the accused fully of the charges." United States v. Klein, 850
F.2d 404, 406 (8th Cir. 1988) (internal quotation marks and citations
omitted); see Turner v. United States, 396 U.S. 398, 420 (1970) (stat-
ing general rule that when jury returns guilty verdict on indictment
charging several acts in conjunctive, verdict stands if evidence is suf-
ficient with respect to any one act charged). Thus, the indictment
against Lowery properly charged in the conjunctive that he possessed
with intent to distribute both marijuana and cocaine. Nevertheless,
because culpability for possession with intent to distribute one illegal
substance is independent of culpability for possession with intent to
distribute a different illegal substance, the jury instruction with
respect to a charge involving more than one illegal substance is prop-
erly framed in the disjunctive. To instruct the jury in the conjunctive,
as Lowery urges, "would improperly add elements to the crime that
are not contained in the statute itself." United States v. Montgomery,
262 F.3d 233, 242 (4th Cir.), cert. denied, 534 U.S. 1034 (2001). We
thus find the instruction the district court initially accepted, which
required the jury to find possession with intent to distribute both mari-
juana and cocaine to convict under Counts Two and Six, to be an
improper instruction because it added elements to the § 841 crime not
required by the statute.
Moreover, the district court’s belated recognition that the proposed
jury instruction required modification does not entitle Lowery to
relief. Even in the face of a Rule 30 error, Lowery does not show that
the district court’s ruling on the jury instruction precluded him from
making any legally sufficient argument. "A violation of Rule 30
requires reversal only when the defendant can show actual prejudice."
United States v. Horton, 921 F.2d 540, 547 (4th Cir. 1990).
Second, Lowery contends that the district court abused its discre-
tion by directing the jury to resume deliberations after it returned a
verdict that was incomplete as to Counts Two and Six. A jury may
"remain undischarged and retain its functions, though discharge may
have been spoken by the court, if, after such announcement, it
4 UNITED STATES v. LOWERY
remains an undispersed unit, within control of the court, with no
opportunity to mingle with or discuss the case with others, and partic-
ularly where . . . the very case upon which it has been impaneled is
still under discussion by the court, without the intervention of any
other business." Summers v. United States, 11 F.2d 583, 586 (4th Cir.
1926); see Quesinberry v. Taylor, 162 F.3d 273, 278 (4th Cir. 1998)
(citing to Summers for the proposition that "as long as the jury
‘remains an undispersed unit, within control of the court,’ the jury had
not been finally discharged"). Our review of the record demonstrates
that given the short period of time that elapsed during which the jury
returned with its verdict, the district court published the verdict on the
ten counts charged in the indictment, the court thanked the jurors for
their service, the court announced that the jurors could leave, the
court directed the jurors to resume their seats, the court directed the
jury to complete its deliberations on Counts Two and Six, the jury
returned to the jury room to deliberate, the jury returned to the court-
room, the court published the remainder of the verdict, the court con-
firmed that the verdict was unanimous, and the court discharged the
jury. Lowery’s claim that the jurors were a dispersed unit is meritless.
Third, Lowery challenges the sufficiency of the evidence proving
his guilt as to Count Four, possession of a firearm in furtherance of
a drug trafficking crime. In reviewing a sufficiency claim on appeal,
this court must sustain the verdict if the record contains substantial
evidence, taking the view most favorable to the Government, to sup-
port it. See Glasser v. United States, 315 U.S. 60, 80 (1942). In apply-
ing this standard, we must give due regard to the fact finder’s
prerogative to resolve questions of credibility. See United States v.
Burgos, 94 F.3d 849, 862-63 (4th Cir. 1996) (en banc).
To establish a violation of 18 U.S.C. § 924(c)(1), the government
must prove that the defendant (1) used or carried a firearm during and
in relation to a crime of violence or drug trafficking crime; or (2) pos-
sessed a gun in furtherance of a crime of violence or drug trafficking
crime. 18 U.S.C. § 924(c). This court has stated that the "statutory
term ‘furtherance’ should be given its plain meaning" and, thus,
"§ 924(c) requires the government to present evidence indicating that
the possession of a firearm furthered, advanced, or helped forward a
drug trafficking crime." United States v. Lomax, 293 F.3d 701, 705
(4th Cir.), cert. denied, 123 S. Ct. 555 (2002). The underlying drug
UNITED STATES v. LOWERY 5
conviction is not in dispute. United States v. Hill, 971 F.2d 1461,
1464 (10th Cir. 1992).
Here, the rifles were found in Lowery’s ten-by-twelve-foot kitchen
in close proximity to drugs and to other equipment and supplies used
in drug trafficking. The time and circumstances under which the rifles
were found provide further support for the jury’s verdict. When police
officers arrived at Lowery’s home on March 16, 2000, he had cocaine
and marijuana ready for distribution and $4799 in his wallet. The
accessibility and visibility of the rifles supports a finding that the
rifles furthered Lowery’s drug trafficking business by deterring the
theft of drugs or profits, enabling Lowery to collect payment for
drugs, and preventing transactions from souring. See Lomax, 293 F.3d
at 705. We find that the evidence was sufficient to sustain Lowery’s
conviction for possession of a firearm in furtherance of a drug traf-
ficking crime.
Accordingly, we affirm Lowery’s convictions and sentence. We
dispense with oral argument because the facts and legal contentions
are adequately presented in the materials before the court and argu-
ment would not aid the decisional process.
AFFIRMED