United States v. Somkhit Thongsy

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA,  No. 08-30198
Plaintiff-Appellee,
v.  D.C. No.
1:07-cr-30023-PA
SOMKHIT THONGSY,
OPINION
Defendant-Appellant.

Appeal from the United States District Court
for the District of Oregon
Owen M. Panner, District Judge, Presiding
Argued and Submitted
May 5, 2009—Portland, Oregon
Filed August 17, 2009
Before: William A. Fletcher, Carlos T. Bea, and
Sandra S. Ikuta, Circuit Judges.
Opinion by Judge Ikuta
11149
11152 UNITED STATES v. THONGSY
COUNSEL
Robert M. Stone (briefed and argued), Medford, Oregon for
the defendant-appellant.
Karen J. Immergut (briefed), Judith R. Harper (briefed and
argued), Medford, Oregon for the plaintiff-appellee.
OPINION
IKUTA, Circuit Judge:
Somkhit Thongsy challenges his jury conviction for posses-
sion of a firearm in furtherance of a felony under 18 U.S.C.
UNITED STATES v. THONGSY 11153
§ 924(c). Thongsy argues that the evidence adduced at trial
was insufficient to prove he possessed a firearm because he
was asleep, no firearm was on his person, and he shared a tent
with two others. Thongsy also argues that, even if he pos-
sessed a firearm, the evidence was insufficient to prove he
possessed it in furtherance of the underlying illegal marijuana
operation. Finally, Thongsy argues that the district court gave
an improper jury instruction because the court stated the jury
could convict him if it found he possessed a firearm “during
and in relation to the crime,” as opposed to “in furtherance of”
the crime. Because the evidence presented was sufficient to
convict Thongsy, and because the district court’s error in for-
mulating the jury instruction was harmless, we affirm.
I
In the spring of 2007, Drug Enforcement Administration
agents located a marijuana farm on 160 acres of private land
in the remote Wolf Creek area of southern Oregon. After con-
ducting surveillance, agents determined the farm was a
sophisticated commercial operation. They raided the property
at dawn on July 31, 2007, discovering a camp area hidden
under heavy foliage seven to ten feet from the marijuana
plants. In a tent at the camp, DEA Special Agent Williams
observed three individuals in close quarters. The individual
sleeping in the middle, later identified as Thongsy, had a .45
caliber semi-automatic pistol lying on his sleeping bag at
waist level, within reach.
Agents removed Thongsy and the two other individuals,
Vichean Bun and Thomas Sujadee, from the tent. The agents
found a loaded rifle located near Bun’s feet, as well as a fanny
pack near his head containing a loaded .38 caliber pistol and
two fully loaded ammunition magazines. Another loaded
semi-automatic pistol was found underneath Sujadee. The
area inside the tent was small enough that each individual had
easy access to any of the weapons. Clothing seized from the
tent included a camouflage shirt. The pocket of that shirt con-
11154 UNITED STATES v. THONGSY
tained a magazine fitting the gun found next to Thongsy.
Video footage recovered from cameras that had been placed
around the site one week before the raid showed Thongsy
tending the farm’s watering system while wearing the shirt.
Agents ultimately seized 8,918 marijuana plants from the
farm. At the campsite, agents also seized drying marijuana,
fertilizer, irrigation equipment, gardening tools, food, trash,
utensils, a pesticide sprayer, fuel containers, and a propane
burner.
Thongsy was indicted by a grand jury on August 3, 2007,
for violations of 21 U.S.C. § 846 (conspiracy to manufacture
marijuana); 21 U.S.C. § 841(a)(1) and (b)(1)(A)(vii) (manu-
facture of marijuana); and 18 U.S.C. § 922(g)(5) (alien ille-
gally in the United States in possession of a firearm). On
March 7, 2008, the grand jury added a fifth and sixth count
to the indictment: being a felon in possession of a firearm in
violation of 18 U.S.C. § 922(g)(1) and possession of a firearm
in furtherance of a felony in violation of 18 U.S.C.
§ 924(c)(1)(A) and (B)(i).1
During the course of a two-day trial in March 2008, DEA
Agent Wright testified that large-scale marijuana farms, like
the one in this case, are run by organized groups. He also tes-
tified that firearms are regularly found at the farms to protect
the marijuana crop and that neither the rifle (which had been
altered for use as an assault rifle) nor the pistols seized from
the campsite would be used for hunting. Wright testified that
the marijuana plants at the farm had a value of approximately
$6.6 million.
1
18 U.S.C. § 924(c)(1)(A) and (B)(i) provide, in pertinent part, that:
“any person who, during and in relation to any crime of violence or drug
trafficking crime . . . for which the person may be prosecuted in a court
of the United States, 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 . . . be sen-
tenced to a term of imprisonment of not less than 5 years . . . .”
UNITED STATES v. THONGSY 11155
Toward the end of trial, Thongsy moved for judgment of
acquittal under Rule 29(a) of the Federal Rules of Criminal Pro-
cedure2 on Count 6, possession of a firearm in furtherance of
a felony. The district court denied the motion.3 Thongsy also
proposed the following jury instruction on Count 6:
Merely possessing a firearm contemporaneously
with manufacture of marijuana is insufficient to
establish possession in furtherance of a drug traffick-
ing offense. There must be some specific evidence
that the possession furthers the underlying offense.
The district court rejected this formulation in favor of a jury
instruction based on Ninth Circuit Model Instruction No.
8.65. Specifically, the district court delivered the following
instruction:
In count 6 of the indictment, the defendant is
charged with carrying a firearm during and in rela-
tion to a drug trafficking crime. For the defendant to
be found guilty of this charge, the government must
prove each of the following elements beyond a rea-
sonable doubt: First, the defendant committed con-
spiracy to manufacture marijuana, or manufacture of
marijuana, or both, as charged in counts 1 and 2 of
the indictment;
Second, the defendant knowingly carried a fire-
arm; and
2
Fed. R. Crim. P. 29(a) states, in pertinent part: “After the government
closes its evidence or after the close of all the evidence, the court on the
defendant’s motion must enter a judgment of acquittal of any offense for
which the evidence is insufficient to sustain a conviction.”
3
Thongsy also moved for judgment of acquittal on Count 4, alien ille-
gally in the United States in possession of a firearm. The district court
granted that motion, because the government did not meet its burden of
showing Thongsy was in the United States illegally.
11156 UNITED STATES v. THONGSY
Third, the defendant carried and/or possessed the
firearm during and in relation to the crime.
A person possesses a firearm “in relation to the
crime” if the firearm facilitated or played a role in
the crime.
The jury convicted Thongsy of Count 6, as well as three other
counts. On appeal, Thongsy argues that the district court erred
by denying his motion for judgment of acquittal as to Count
6, and that the court also erred by giving an improper jury
instruction on that count.
II
We review de novo the district court’s denial of Thongsy’s
motion for judgment of acquittal under Rule 29(a). United
States v. Hartz, 458 F.3d 1011, 1023 (9th Cir. 2006). We must
affirm the conviction “if, viewing the evidence in the light
most favorable to the government, any rational trier of fact
could have found the defendant guilty beyond a reasonable
doubt of each element” of the crime charged. United States v.
Mann, 389 F.3d 869, 878 (9th Cir. 2004) (internal quotation
marks and alteration omitted).
We also review de novo the question whether a trial court’s
jury instruction omitted or incorrectly described an element of
the offense. See United States v. Kaur, 382 F.3d 1155, 1157
(9th Cir. 2004). We apply harmless error analysis to an error
involving improper instructions on an element of the offense.
Neder v. United States, 527 U.S. 1, 8 (1999).
III
[1] We first consider Thongsy’s argument that the evidence
adduced at trial was insufficient to prove he possessed a firearm.4
4
The government argues that a plain error standard of review applies to
this challenge because Thongsy raises the issue for the first time on
appeal. While the record is not entirely clear, we conclude that Thongsy
raised this issue at trial.
UNITED STATES v. THONGSY 11157
“Possession under § 924(c)(1) can be shown through either
constructive or actual possession.” United States v. Krouse,
370 F.3d 965, 966 n.3 (9th Cir. 2004) (citing United States v.
Lott, 310 F.3d 1231, 1247 (10th Cir. 2002)). A defendant has
actual possession of an item “if the person knows of its pres-
ence and has physical control of it, or has the power and
intention to control it.” United States v. Cain, 130 F.3d 381(9th Cir. 1997) (internal quotation marks omitted). The defini-
tion of constructive possession is similar. “A person has con-
structive possession when he or she knowingly holds
ownership, dominion, or control over the object and the prem-
ises where it is found.” Lott, 310 F.3d at 1247 (internal quota-
tion marks omitted); see also United States v. Saddler, 538
F.3d 879, 888 (8th Cir. 2008). The government can prove
actual or constructive possession using circumstantial evi-
dence alone. United States v. Bernard, 48 F.3d 427, 430 (9th
Cir. 1995).
[2] Here, evidence adduced at trial showed that Thongsy
resided in a tent at a campsite containing marijuana process-
ing and cultivation equipment, worked on the adjacent mari-
juana farm, slept with a firearm close at hand, and wore a shirt
with a magazine in the pocket that matched the firearm.
Viewing the evidence in the light most favorable to the gov-
ernment, a rational juror could have found beyond a reason-
able doubt that Thongsy had knowledge and control of the
firearm. The firearm need not have been in Thongsy’s hand
or on his person, see Krouse, 370 F.3d at 968 (holding that
sufficient evidence supported a conviction under § 924(c)
when firearms “were strategically located within easy reach in
a room containing a substantial quantity of drugs and drug
trafficking paraphernalia”), nor is it availing that Thongsy
shared a tent with two cohorts, cf. United States v. Carrasco,
257 F.3d 1045, 1049 (9th Cir. 2001) (holding in the context
of a felon in possession conviction that there was sufficient
evidence to establish constructive possession by driver of car
where gun and shells were found under passenger’s seat,
because evidence suggested driver knew of the items and they
11158 UNITED STATES v. THONGSY
were within easy reach); United States v. Terry, 911 F.2d 272,
278 (9th Cir. 1990) (holding same where gun was found on
husband’s side of a closet shared with wife).
[3] Thongsy next argues that, even if he “possessed” the
firearm for purposes of § 924(c)(1), there was insufficient evi-
dence that the possession was “in furtherance of” the underly-
ing crime. The question whether possession of a firearm is “in
furtherance” of a crime is a “fact-based inquiry into the nexus
between possession of the firearm and the drug crime.”
United States v. Hector, 474 F.3d 1150, 1156 (9th Cir. 2007).
To determine whether the requisite nexus exists, we consider
“the proximity, accessibility, and strategic location of the fire-
arms in relation to the locus of drug activities.” Id. at 1157
(citing Krouse, 370 F.3d at 968 (internal quotation marks
omitted)). We have held that such a nexus is present where a
firearm is “easily accessible or strategically placed” in an area
used as a focal point for drug operations. Id. at 1158; see also
United States v. Mosley 465 F.3d 412, 417-18 (9th Cir. 2006)
(holding sufficient nexus was established when firearms were
found in a closet and on a shelf at the entrance to a house even
though the kitchen was the locus of drug production).
[4] Relying on our decisions in Mann, 389 F.3d at 878, and
United States v. Rios, 449 F.3d 1009, 1012 (9th Cir. 2006),
Thongsy claims the government failed to show a sufficient
nexus between the firearm and the underlying crime because
the focal point of the drug operation was the marijuana farm,
not the tent, and the government presented no evidence that
the firearm at issue was present in the immediate area of the
farm. We disagree. In Mann, firearms were found 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.
389 F.3d at 879. In Rios, police found an unloaded sawed-off
shotgun at the residence of a drug dealer, but no indication
that drug sales were taking place at that residence. 449 F.3d
at 1014-15. In each of those cases, we held that there was an
insufficient nexus between the firearm and the underlying
UNITED STATES v. THONGSY 11159
crime. Mann, 389 F.3d at 880; Rios, 449 F.3d at 1016. But
unlike the residence in Rios, the tent here was an integral part
of the drug operation. It was located in a work camp just a
few feet from the marijuana farm, and it sheltered individuals
who worked at the farm. Nor was the firearm inaccessible, as
in Mann. Rather, it was found within Thongsy’s easy reach,
giving rise to the ready inference that the firearm was strategi-
cally located to protect Thongsy, his cohorts, and the $6.6
million marijuana operation. See Hector, 474 F.3d at 1158(holding possession of firearm for protection was “in further-
ance of” underlying drug business). Accordingly, the evi-
dence was sufficient to show the requisite nexus between the
firearm and the drug operation, and a rational jury could find
beyond a reasonable doubt that Thongsy’s possession of the
firearm was “in furtherance of” the drug crime. Therefore, the
evidence adduced at trial was sufficient to convict Thongsy of
violating § 924(c).
IV
[5] Finally, Thongsy argues that the jury instruction did not
fairly and adequately cover the elements of possession of a
firearm in furtherance of a drug crime because it required the
jury to find that he “carried and/or possessed the firearm dur-
ing and in relation to the crime” instead of requiring the jury
to find that he possessed the firearm “in furtherance of” the
crime. We have established that § 924(c) makes criminal a
single offense that can be proven in two ways. See United
States v. Arreola, 467 F.3d 1153, 1159 (9th Cir. 2006). We
explained the distinction in Arreola:
What the statute proscribes as conduct in the first
clause is the use or carrying of a gun during (a tem-
poral connection) and in relation to (a substantive
connection) a predicate crime. What the statute pro-
scribes in the second clause is possessing a gun in
furtherance of (with a particular purpose of advanc-
ing) the specified crime.
11160 UNITED STATES v. THONGSY
Id. Here, the district court conflated the two clauses of
§ 924(c) by instructing the jury that it could convict Thongsy
if it found that he “possessed” a firearm (part of the second
clause) “during and in relation to the crime” (part of the first
clause).
The government argues that, even though the instruction
required the jury to find that Thongsy possessed the firearm
“during and in relation to the crime” instead of “in furtherance
of” the crime, the instruction was adequate because the court
also stated: “A person possesses a firearm ‘in relation to the
crime’ if the firearm facilitated or played a role in the crime.”
Although we have not held that a defendant possesses a fire-
arm “in furtherance” of a crime if the firearm merely “played
a role” in the crime, the government contends that a firearm
that played a role in a drug crime would necessarily facilitate
that crime.
[6] We disagree. As a general rule, a firearm that “played
a role” in a drug crime would likely also be “in furtherance
of” that crime. See United States v. Gonzalez, 528 F.3d 1207,
1213 (9th Cir. 2008) (holding that, where an armed border
patrol agent possessed marijuana with intent to distribute and
the firearm “emboldened” him and “lent him an air of legiti-
macy,” evidence was sufficient to convict the agent of posses-
sion of the firearm “in furtherance of” the crime under
§ 924(c)); see also Mann, 389 F.3d at 880 (“We recognize
that persons . . . engaged in criminal activities . . . will fre-
quently carry weapons to protect their enterprise.”). Neverthe-
less, in an unusual case, a defendant might unknowingly or
accidentally have a firearm at the scene of a drug transaction.
If such a firearm, upon discovery by other participants, dis-
rupted or stopped the transaction from proceeding, and the
defendant never intended his possession of the firearm to be
in furtherance of the crime, then the firearm could be said to
have played a role in the crime without also furthering the
crime. See Gonzalez, 528 F.3d at 1212-13 (indicating that
§ 924(c) is not violated if the presence of a firearm was the
UNITED STATES v. THONGSY 11161
result of accident or coincidence). Because the court’s instruc-
tion stated the jury could find Thongsy guilty if Thongsy pos-
sessed a firearm that merely “played a role in the crime,” as
opposed to “in furtherance of” the crime, we conclude that the
instruction was incorrect.5 See United States v. Nobari, ___
F.3d ___, 2009 WL 2195345, *11 (9th Cir. July 24, 2009)
(holding that the district court erred by confusing the two sep-
arate clauses of § 924(c)).
[7] The instructional error, however, was harmless in this
case. An error in misdescribing or omitting an element of the
offense in a jury instruction is harmless if it is “clear beyond
a reasonable doubt that a rational jury would have found the
defendant guilty absent the error.” Neder v. United States, 527
U.S. 1, 18 (1999). Here, the evidence demonstrating Thongsy
used the pistol to facilitate the criminal activity was over-
whelming. The evidence demonstrated Thongsy’s involve-
ment in a large, sophisticated, and highly lucrative criminal
marijuana enterprise. Agent Williams testified that organized
groups frequently run such enterprises, that firearms are fre-
quently used by the groups for protection, and that Thongsy’s
pistol would not be used for hunting. Under these circum-
stances, no rational juror could have found the firearm
“played a role in the crime,” without also finding that it facili-
tated the crime. See United States v. Lopez, 100 F.3d 98,
104-05 (9th Cir. 1996); accord United States v. Smith, 561
F.3d 934, 941 (9th Cir. 2009) (en banc). Because the evidence
showing Thongsy possessed the firearm in furtherance of the
5
Ninth Circuit Model Jury Instruction 8.65, which the district court fol-
lowed in part, does not correctly set forth the elements of § 924(c). In par-
ticular, the instruction does not track the language in § 924(c) that makes
it unlawful to possess a firearm “in furtherance of” a drug crime. Instead,
the instruction invites error by allowing a judge to instruct a jury that the
relevant offense involves possessing a firearm “during and in relation to
the crime.” Model Jury Instruction 8.65 thus should be revised to clarify
there are two ways to prove an offense under § 924(c): the defendant
either (1) used or carried a firearm “during and in relation to” a crime or
(2) possessed a firearm “in furtherance of” a crime.
11162 UNITED STATES v. THONGSY
drug crime was overwhelming, see Neder, 527 U.S. at 17, and
because Thongsy “did not, and apparently could not,” Id. at
19, introduce evidence to negate this element (for example,
that he unknowingly or accidentally had the firearm with him
in the tent), the district court’s error was harmless.
V
In sum, because the evidence adduced at trial was sufficient
to convict Thongsy under 18 U.S.C. § 924(c), the district
court did not err by denying Thongsy’s motion for judgment
of acquittal. Although the jury instruction given by the district
court was incorrect, the error was harmless because it is clear
beyond a reasonable doubt that a rational jury would have
found Thongsy guilty absent the error. Accordingly, Thong-
sy’s conviction is AFFIRMED.