United States v. Anthony Chadwell

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 14-30028
Plaintiff-Appellee,
D.C. No.
v. 1:13-cr-00014-
DWM-1
ANTHONY MARCOS CHADWELL,
Defendant-Appellant. OPINION
Appeal from the United States District Court
for the District of Montana
Donald W. Molloy, Senior District Judge, Presiding
Argued and Submitted
July 8, 2015—Portland, Oregon
Filed August 19, 2015
Before: N. Randy Smith and John B. Owens, Circuit
Judges, and William Q. Hayes,* District Judge.
Opinion by Judge Hayes
*
The Honorable William Q. Hayes, District Judge for the U.S. District
Court for the Southern District of California, sitting by designation.
2 UNITED STATES V. CHADWELL
SUMMARY**
Criminal Law
The panel affirmed a jury conviction and sentence for
being in possession of firearms while subject to a court order.
The panel held that the district court did not abuse its
discretion or violate defendant’s right to be present at all
stages of the trial under Fed. R. Crim. P. 43(a) when it
permitted the jury to view a properly admitted video exhibit
in the jury room during deliberations.
The panel also held that the district court did not err in
applying a four-level sentencing enhancement under U.S.S.G.
§ 2K2.1(b)(6)(B) for using or possessing any firearm in
connection with another felony offense.
COUNSEL
Cammi J. Woodward (argued), Woodward Law Firm, PLLC,
Billings, Montana, for Defendant-Appellant.
John D. Sullivan (argued), Assistant United States Attorney,
and Michael W. Cotter, United States Attorney, Billings,
Montana, for Plaintiff-Appellee.
**
This summary constitutes no part of the opinion of the court. It has
been prepared by court staff for the convenience of the reader.
UNITED STATES V. CHADWELL 3
OPINION
HAYES, District Judge:
Appellant Anthony Marcos Chadwell appeals his jury
conviction and sentence for being in possession of firearms
while subject to a court order in violation of 18 U.S.C.
§ 922(g)(8). Chadwell contends that the district court
(a) abused its discretion and violated his right to be present at
all stages of the trial when it permitted the jury to review a
properly admitted video exhibit in the jury room during
deliberations, and (b) erred in applying the four-level
enhancement under U.S. Sentencing Guidelines Manual
(“U.S.S.G.”) § 2K2.1(b)(6)(B) for using or possessing any
firearm in connection with another felony offense to calculate
his advisory guideline range. We have jurisdiction under
28 U.S.C. § 1291, and we affirm.
FACTS AND PROCEDURAL HISTORY
A. Offense Conduct
On August 26, 2012, Billings Police Department Officer
James Ward pulled over a vehicle driven by Chadwell. The
video recording system in Officer Ward’s patrol vehicle
activated when he turned on his top lights for the traffic stop.
Chadwell immediately informed Officer Ward that he was a
habitual traffic offender. Officer Ward verified the
information with dispatch and informed Chadwell he would
be placed under arrest as a habitual traffic offender.
Chadwell exited the vehicle and immediately closed the door.
Officer Ward placed Chadwell in handcuffs. When Officer
Ward asked Chadwell if he would find anything in the
vehicle, Chadwell became agitated. Chadwell started to yell
4 UNITED STATES V. CHADWELL
at the passenger, Brandon Robinson, to get out of the vehicle.
Robinson exited the vehicle, locked the doors, and sat on the
trunk. Officer Ward asked Chadwell whether he had proof of
insurance in the glove box. Chadwell responded, “No, you’re
not getting in there. So just give me a no-insurance.”
After Chadwell was taken to jail, officers searched the
vehicle. Officer Ward found a bottle that contained two
plastic sandwich baggies of cocaine on the driver’s side
floorboard, a loaded .25 caliber semiautomatic pistol with a
round in the chamber between the center seats in the front of
the vehicle, and an unloaded .22 caliber semiautomatic pistol
in the glove box. All of these events were video recorded.
Chadwell was charged in an indictment with being in
possession of firearms and ammunition while subject to a
court order in violation of 18 U.S.C. § 922(g)(8).
B. Trial Proceedings
At the pretrial conference, Chadwell stipulated to the
admission of the two firearms and the ammunition found in
the vehicle, a nineteen-minute portion of the video recorded
from Officer Ward’s vehicle,1 and the certified order of
protection prohibiting Chadwell from possessing a firearm.
At trial, the district court permitted the government to
publish the nineteen-minute video exhibit to the jury during
the testimony of Officer Ward. The government rested on the
first day of trial and Chadwell did not present any evidence.
1
The entire video lasted approximately an hour. The shortened video
exhibit, admitted by stipulation of the parties, did not include the search
of the vehicle or the discovery of the cocaine and guns.
UNITED STATES V. CHADWELL 5
The court submitted the case to the jury for deliberations at
approximately 3:45 p.m.
Shortly before 5:00 p.m., the court reconvened in the
courtroom outside the presence of the jury with all counsel
and Chadwell present. The district court informed the parties
that the jury had sent out a question stating, “How do we
watch the DVD?” The district court confirmed with the
parties that the nineteen-minute video exhibit had been played
in full in open court and that the video exhibit was in the jury
room.
The jury was excused for the evening and returned the
next morning. When court reconvened, the district court
informed the parties that a television with a built-in video
player was set up in the jury room. Defense counsel objected
on the grounds that the trial was short and the procedure
unduly emphasized one piece of the evidence. The court
overruled the defense objection. The court reconvened with
the jury present. The court informed the jury that a television
with a built-in video player was available in the jury room to
play the video. The court cautioned the jury to give full
consideration to all of the testimony and not to focus on any
one particular piece of evidence. The jury returned to the jury
room to deliberate, and subsequently returned a verdict of
guilty.
C. Sentencing
Chadwell objected to the application of the four-level
enhancement under U.S.S.G § 2K2.1(b)(6)(B) for the use or
possession of a firearm in connection with another felony,
which was recommended in the presentence report. At the
sentencing hearing, the government presented the testimony
6 UNITED STATES V. CHADWELL
of Officer Ward and Detective Kenneth Tuss. Officer Ward
testified regarding the location of the drugs and the guns in
the vehicle that Chadwell was driving at the time of the traffic
stop. Detective Tuss testified regarding a controlled sale of
cocaine between a confidential informant and Chadwell on
August 15, 2012, eleven days prior to the offense conduct.
Detective Tuss testified that Chadwell and Robinson sold
cocaine to a confidential informant in an alley after meeting
up at the house of Robinson’s grandmother.
After hearing the evidence and the arguments of counsel,
the district court found the government had proven by more
than a preponderance of evidence that Chadwell had the gun
in his possession in connection with a specifically
contemplated felony—the distribution, sale, or use of
cocaine—and that Chadwell formed a firm intent to have the
gun for protection or to embolden himself or others in either
taking or not paying for the cocaine. The district court relied
specifically upon evidence of the August 15 controlled buy of
cocaine, Chadwell’s obstreperous behavior at the traffic stop,
and the close proximity of the firearm and the drugs in the
vehicle. The district court found: “[T]he facts very clearly
establish . . . that Mr. Robinson and Mr. Chadwell were [i]n
the business of selling drugs, and that the firearms were there
in connection with the drugs.” The district court concluded
that the four-level enhancement under U.S.S.G.
§ 2K2.1(b)(6)(B) for the use or possession of a firearm in
connection with another felony applied in this case, and
sentenced Chadwell to 48 months of incarceration followed
by three years of supervised release.
UNITED STATES V. CHADWELL 7
STANDARD OF REVIEW
We review for abuse of discretion the district court’s
decision to allow the jury to take exhibits into the jury room.
See United States v. Abonce-Barrera, 257 F.3d 959, 963 (9th
Cir. 2001); see also United States v. DeCoito, 764 F.2d 690,
695 (9th Cir. 1985).
“We review ‘the district court’s interpretation of the
Sentencing Guidelines de novo, the district court’s
application of the Sentencing Guidelines to the facts of [the]
case for abuse of discretion, and the district court’s factual
findings for clear error.’” United States v. Rosas, 615 F.3d
1058, 1066 (9th Cir. 2010) (alteration in original) (quoting
United States v. Kimbrew, 406 F.3d 1149, 1151 (9th Cir.
2005)).
ANALYSIS
A. Permitting the Jury to Review the Video in the
Jury Room
Chadwell argues that permitting the jury to review the
video exhibit alone in the jury room (a) was an abuse of the
district court’s discretion and (b) violated his right to be
present at all stages of trial under Federal Rule of Criminal
Procedure 43(a). We hold that the district court did not abuse
its discretion in sending the video exhibit to the jury room for
replay and that a defendant’s right to be present at all stages
of the trial under Federal Rule of Criminal Procedure 43(a)
does not extend to a jury’s private review of evidence in the
jury room.
8 UNITED STATES V. CHADWELL
1. Sending Exhibits to the Jury Room
The decision to send properly admitted exhibits to the
jury room during deliberations is within the discretion of the
trial court. DeCoito, 764 F.2d at 695. Jurors generally may
examine all or part of any exhibit received into evidence and
determine the weight to give that evidence during
deliberations in the privacy of the jury room. Id. In this case,
the district court had discretion to send the video recording to
the jury room during deliberations and to provide the jury
with the technology to view this properly admitted video
exhibit in the privacy of the jury room. The district court did
not abuse its discretion by allowing the jury to examine the
video exhibit during deliberations in the same private manner
that the jury is entitled to view paper exhibits, photographs,
and physical exhibits. See United States v. Cuozzo, 962 F.2d
945, 953 (9th Cir. 1992) (holding that properly admitted
“audio tapes” can be “made available to [the] jury for review
like all other evidentiary exhibits”).2
2
Other circuits allow tape players to go into the jury room to replay
properly admitted evidence. See, e.g., United States v. Monserrate-
Valentin, 729 F.3d 31, 59 (1st Cir. 2013) (“We fail to see how . . .
recordings are any different from the other types of documentary evidence
that are routinely reviewed by jurors during their deliberations.”); United
States v. Plato, 629 F.3d 646, 652 (7th Cir. 2010) (“We have previously
approved of a district court’s decision to send tape recordings and a tape
player into the jury room during deliberations . . . .”); United States v.
Rose, 522 F.3d 710, 715 (6th Cir. 2008) (“As we have said in response to
objections to the presence of tape players in the jury room, an audio
exhibit should not be relegated to muteness because it can be perused only
through the use of a tape player.” (internal quotation marks omitted));
United States v. Sobamowo, 892 F.2d 90, 97 (D.C. Cir. 1989) (R.B.
Ginsburg, J.) (“Contrary to defendants’ contentions, the tape replaying
was not a stage of trial implicating the confrontation clause or Rule
43(a).”); United States v. Zepeda-Santana, 569 F.2d 1386, 1391 (5th Cir.
UNITED STATES V. CHADWELL 9
As the district court in this case correctly concluded,
permitting a jury to view properly admitted exhibits is “quite
different” from permitting the jury to hear a readback of
actual trial testimony. Trial testimony may be read back to a
jury at the district court’s discretion, but only where the
“particular facts and circumstances of [a] case” favor a
readback and sufficient protections are in place to avoid
undue emphasis on any portion of the testimony. United
States v. Hernandez, 27 F.3d 1403, 1408 (9th Cir. 1994).
Compare id. at 1408–09 (holding that the district court
abused its discretion in permitting the jury to take a transcript
into the jury room during deliberations when the court knew
the jury intended to focus its verdict on a specific portion of
a transcript and did not instruct the jury not to emphasize that
transcript or otherwise provide protective instructions), with
United States v. Lujan, 936 F.2d 406, 411–12 (9th Cir. 1991)
(per curiam) (holding that the district court did not abuse its
discretion by permitting the jury to take a copy of trial
transcript into the jury room during deliberations when the
district court took multiple precautions to avoid undue
emphasis on the transcript).
We stated our concerns about permitting trial testimony
readback during jury deliberations in United States v. Sacco,
869 F.2d 499, 502 (9th Cir. 1989): “[I]n the privacy of the
1978) (“It is within the trial court’s discretion to decide whether
evidentiary exhibits [taped conversations] should accompany the jury into
the jury room.”); United States v. Williams, 241 F. App’x 681, 684 (11th
Cir. 2007) (“A tape recording is just another piece of real evidence.”
(internal quotation marks omitted)); United States v. Graulich, 35 F.3d
574, at *8 (10th Cir. 1994) (unpublished table decision) (“We hold that the
tapes were properly admitted in evidence and that the district court did not
abuse its discretion in thereafter allowing the tapes to go to the jury room
during deliberations.”).
10 UNITED STATES V. CHADWELL
jury room, a jury, unsupervised by the judge, might
repeatedly replay crucial moments of testimony before
reaching a guilty verdict.” In this case, the video was a
properly admitted exhibit which was sent to the jury room
along with the other exhibits in the case—not trial testimony.
See Cuozzo, 962 F.2d at 953 (“The government’s audio tapes
were not testimony . . . .”). The concern for avoiding undue
emphasis on particular trial testimony did not limit the
discretion of the district court to send the video exhibit to the
jury room “for review like all other evidentiary exhibits.” Id.
2. Federal Rule of Criminal Procedure 43(a)
Our case law concerning the defendant’s right under
Federal Rule of Criminal Procedure 43(a)(2) to be personally
present at “every trial stage” is also inapposite. We have
consistently held that the replay of audio exhibits for the jury
during deliberations in the courtroom with outsiders present
is properly viewed as a stage of the trial at which the presence
of the defendant is required. See United States v. Felix-
Rodriguez, 22 F.3d 964, 966–67 (9th Cir. 1994) (holding that
the replay of taped conversations in the courtroom with the
judge, his law clerk, the court clerk, and the court reporter
present, but not the defendant, violated Rule 43(a)(2)); United
States v. Brown, 832 F.2d 128, 129–30 (9th Cir. 1987)
(holding that the replay of court reporter’s tape recording of
a prior proceeding in the courtroom with the case agent and
the court clerk present, but not the defendant, violated Rule
43(a)(2)); United States v. Kupau, 781 F.2d 740, 743 (9th Cir.
1986) (holding that the replay of taped conversations in the
courtroom with an FBI agent present, but not the defendant,
violated Rule 43(a)(2)).
UNITED STATES V. CHADWELL 11
In each of these cases, we concluded that the procedure
used by the district court violated the defendant’s rights under
Rule 43(a) because outsiders were present. In Kupau, we
expressed “serious concerns about . . . a risk that someone
associated with the prosecution, while alone with the jury
after submission, could, in some fashion, influence its
deliberations.” 781 F.2d at 742; see also Brown, 832 F.2d at
130 (“Any number of prejudicial events might have taken
place when the case agent replayed the tape for the jury. . . .
Such contact could be very subtle, such as a nod at a
significant portion of the tape. It might have been
unintended, or even unnoticed by the case agent himself.”);
Felix-Rodriguez, 22 F.3d at 967–68 (holding that error was
harmless because the “jurors were not exposed to extraneous
matters”). In this case, the district court provided the jury
with the technology to view the video exhibit in the privacy
of the jury room with no outsiders present. Unlike the cases
cited above, this procedure raised no concern that the
deliberations would be tainted by outside influences.
Chadwell’s reliance on United States v. Noushfar, 78 F.3d
1442 (9th Cir. 1996), amended by 140 F.3d 1244 (9th Cir.
1998), is similarly unavailing. In Noushfar, we held that Rule
43(a) was violated when the district court allowed the jury to
listen in the privacy of the jury room to audio tapes that had
never been presented in open court. Unlike the audio tapes in
Noushfar, the video exhibit in this case was played in its
entirety in open court, and “presented and tested in front of
the jury, judge and defendant.” Id.
The district court thus did not abuse its discretion when it
sent the properly admitted video exhibit into the jury room or
when it provided the jury with the technology to view the
video exhibit during deliberations in the privacy of the jury
12 UNITED STATES V. CHADWELL
room. Nor did the procedure used by the district court violate
Chadwell’s right to be present at every stage of the trial under
Rule 43(a).
B. Application of U.S.S.G. § 2K2.1(b)(6)(B)
U.S.S.G. § 2K2.1(b)(6)(B) states in relevant part: “If the
defendant . . . used or possessed any firearm or ammunition
in connection with another felony offense; or possessed or
transferred any firearm or ammunition with knowledge,
intent, or reason to believe that it would be used or possessed
in connection with another felony offense, increase by 4
levels.”3 The relevant application note states that
“[s]ubsection (b)(6)(B) . . . appl[ies] . . . in the case of a drug
trafficking offense in which a firearm is found in close
proximity to drugs . . . . In these cases, application of
subsection[] (b)(6)(B) . . . is warranted because the presence
of the firearm has the potential of facilitating another felony
offense . . . .” U.S.S.G. § 2K2.1 cmt. n. 14(B). “The
government bears the burden of producing sufficient evidence
that the defendant intended to use or possessed the firearm in
connection with a specifically contemplated felony.” United
States v. Noster, 590 F.3d 624, 635 (9th Cir. 2009).
The facts of this case are materially indistinguishable
from those of United States v. Polanco, 93 F.3d 555 (9th Cir.
1996). In Polanco, the defendant “was observed selling
3
“‘Another felony offense,’ for purposes of subsection (b)(6)(B), means
any federal, state, or local offense, other than the explosive or firearms
possession or trafficking offense, punishable by imprisonment for a term
exceeding one year, regardless of whether a criminal charge was brought,
or a conviction obtained.” U.S. Sentencing Guidelines Manual § 2K2.1
cmt. n.14(C).
UNITED STATES V. CHADWELL 13
marijuana at the intersection of Pico Boulevard and Hoover
Street, not far from his car, which was parked at the corner of
that intersection. During the time he was selling marijuana,
[he] occasionally returned to his parked car.” Id. at 567.
Following his arrest, the defendant’s gun was found “loaded
with ammunition and wedged between the driver’s seat and
the console of his car.” Id. Observing that “[t]he presence of
the gun in [the defendant’s] car potentially emboldened him
to undertake his illicit drug sales,” this court held that the
government had “adduced sufficient evidence to prove by a
preponderance of evidence” that an enhancement under
U.S.S.G. § 2K2.1(b)(6)(B) was warranted. Id.
In this case, a gun was also found near the console of the
defendant’s car and there was evidence the defendant was
selling drugs out of his car—baggies of drugs were found
inches away from the gun. The district court also cited
several other pieces of evidence establishing that the two
guns found in Chadwell’s car “emboldened him to undertake
his illicit drug sales”: (1) the August 15 controlled buy of
cocaine involving Chadwell and Robinson, which supported
the conclusion that Chadwell and Robinson worked closely
together in the distribution of drugs; (2) the fact that
Chadwell was under a restraining order for threats of
violence; and (3) the fact that Chadwell made every effort to
keep the police from getting into the vehicle or searching the
vehicle during the traffic stop that led to the offense of
conviction.
Taking all of this evidence into consideration, there was
ample support in the record for the district court’s conclusion.
The district court did not abuse its discretion when it applied
the four-level enhancement under U.S.S.G § 2K2.1(b)(6)(B).
14 UNITED STATES V. CHADWELL
CONCLUSION
The district court was within its discretion to send the
properly admitted video evidence into the jury room and to
provide the jury with the technology to view the video
evidence during deliberations in the privacy of the jury room.
The procedure used by the district court did not violate
Chadwell’s right to be present at every stage of the trial under
Rule 43(a). The district court did not abuse its discretion
when it applied the four-level enhancement under U.S.S.G.
§ 2K2.1(b)(6)(B).
AFFIRMED.