U.S. v. Grace

• Decision Date: 07 May 2004
• Docket Number: No. 03-1087.,03-1087.
• Citation: 367 F.3d 29
• Parties: UNITED STATES of America, Appellee, v. Omar GRACE, Defendant-Appellant.
• Court: U.S. Court of Appeals — First Circuit

367 F.3d 29

UNITED STATES of America, Appellee, v. Omar GRACE, Defendant-Appellant.

No. 03-1087.

United States Court of Appeals, First Circuit.

Heard December 1, 2003.

Decided May 7, 2004.

COPYRIGHT MATERIAL OMITTED

Cynthia A. Vincent, with whom Thomas and Thomas, Attys. was on the brief, for Appellant.

Margaret D. McGaughey, Appellate Chief, with whom Paula D. Silsby, U.S. Attorney, was on the brief, for Appellee.

Before LYNCH, Circuit Judge, STAHL, Senior Circuit Judge, and LIPEZ, Circuit Judge.

LIPEZ, Circuit Judge.

In this criminal appeal, we conclude that the district court supportably found that the defendant's possession of a firearm to protect her drugs and proceeds of drug sales satisfied the nexus requirement in 18 U.S.C. § 924(c), which punishes possession of a firearm "in furtherance of" a drug trafficking offense. We also resolve an unresolved question about the consequences for a defendant making a sufficiency of the evidence attack on appeal who, in a jury-waived trial, failed to make a motion for a judgment of acquittal under Fed. R. Crim P. 29.

I.

We draw the historical facts from the trial transcript and present them in the light most favorable to the judgment of the court in this jury-waived trial. United States v. Zenon-Rodriguez, 289 F.3d 28, 29 (1st Cir.), cert denied, 537 U.S. 886, 123 S.Ct. 130, 154 L.Ed.2d 146 (2002). Defendant-appellant Omar Grace dealt Oyxcontin (oxycodone) and cocaine from her single-family house in Exeter, Maine for approximately twelve to eighteen months. She acquired the drugs from a local drug courier named Harold Hawks, a longtime friend named Michelle Landry, and members of a motorcycle gang called The Iron Horsemen. These individuals delivered the drugs to Grace's house and then returned some time later to pick up their share of the proceeds. Grace conducted the sales in her kitchen and stored the drugs and the proceeds in her computer room, which was separated from her bedroom with a curtain and connected to her kitchen through a large, open doorway. She sold approximately $1,000 to $4,000 worth of drugs per week in this manner.¹

State and local police executed a search warrant at Grace's home on November 14, 2001. The officers found cocaine, Oxycontin, drug ledgers, and $2,585 in drug proceeds in her computer room. They also found electronic scales and a . 38 caliber handgun in her bedroom. The handgun was found unloaded in a plastic bag in a drawer under her bed. The drawer was blocked by a duffel bag, a trash can, and a box of books. The police did not find any ammunition in the house.

On February 12, 2002, a federal grand jury in Maine returned a seven count indictment against Grace. The indictment consisted of two counts of possession and distribution of oxycodone, two counts of possession and distribution of cocaine, one count of conspiracy to possess and distribute cocaine and oxycodone, one count of possession of a firearm in furtherance of a drug trafficking offense, and a civil forfeiture count that required her to turn over at least $2,585 in drug proceeds. Grace pled not guilty to all counts at her arraignment on March 8, 2002, and the district court released her on bond with several conditions, including that she submit to random urine testing.

On August 21, 2002, the government moved to revoke Grace's bail because two of her drug screens indicated that she had used cocaine. Although she denied having used the drug and signed an affidavit to that effect, the government presented laboratory tests confirming one of the positive screens. The other screen was determined to have been a false positive. Since Grace violated the terms of her release and since it did not appear that the government would be able to ensure that she did not continue to violate those terms, the district court revoked her bail.

On October 7, 2002, the district court held a Rule 11 hearing where Grace pled guilty to the drug distribution charges and stipulated to the civil forfeiture. She pled not guilty to the firearm charge, waived her right to a jury trial, and was tried and convicted by the district court on October 9, 2002.

The evidence presented to the court during Grace's trial consisted primarily of the testimony of four individuals: two police officers and one customs agent testified for the government, and Grace alone testified for the defense. Detective William Flagg of the Penobscot County Sheriff's Office, describing the search of Grace's house, testified that he had not observed anything "of value" in the house other than the drugs and drug proceeds. The government introduced the recovered handgun as evidence during his testimony, and the parties stipulated that it "function[ed] as designed."

Special Agent Ruth Duquette of the Maine Drug Enforcement Administration, testifying about an interview she conducted with Grace three days after the police searched her house, said that Grace appeared tired but "fine" as she told Duquette about her drug dealing activities and the handgun. Grace's home had been burglarized twice. The thieves stole drugs in the first robbery and $5,000 in collectible coins in the second robbery. Duquette testified that Grace told her "that they had the firearm [in the house] because they had been robbed two times." On cross-examination, Grace's attorney asked Duquette: "So, in essence, she told you that she purchased this firearm for protection because of these prior break-ins; is that correct?" Duquette answered: "Correct." Grace suspected that one of her drug sources, Harold Hawks, committed the second robbery because Hawks' brother later showed her one of the stolen coins.

Special Agent Phillip Riherd of the United States Customs Service, who was also present at Grace's police interview, reiterated Duquette's assertion that Grace said that thieves stole drugs in the first robbery, and added that "[s]he said she had been robbed on two occasions, and that's the reason why she had the gun."

Grace insisted in her testimony that her purchase of the gun had nothing to do with her drug trafficking. Her husband was rarely home and she was nervous about living alone "in the country" with her sixteen year old daughter, especially after the two break-ins. She purchased the gun from her friend and drug source, Michelle Landry, for "protection." This was the first gun that she had possessed since she got rid of her.22 hunting rifle eight to ten years earlier. Grace kept the.38 under the bed because it jammed soon after she purchased it when she and her friends shot a box of ammunition in her friend's backyard. Although she asked some other friends to help her to fix the gun and left it with a repairman for approximately six weeks, she eventually concluded that it was irreparable. Although Landry promised to return her money, they could not "connect to get things swapped back around"; therefore, she stored the gun under the bed and never removed it. She could not explain why the police were able to test fire the weapon when they seized it. When the government asked her whether she was as concerned about the need for protection at the time of her arrest as she was when she purchased the gun, she replied: "Yes [I] was."²

Although Grace denied that she told the police that thieves stole drugs during the first robbery, she admitted that they stole collectible coins and a strongbox containing her important papers during the second robbery. She also admitted that the only area that the thieves disturbed in the second robbery was the area in which she stored her drugs and drug proceeds. She did not report either robbery to the police.

After deliberating for approximately one hour, the district court found Grace guilty of possession of a firearm in furtherance of a drug crime. It sentenced her to 130 months of imprisonment, seventy months for the drug crimes to which she pled guilty and a mandatory minimum consecutive sentence of sixty months for the firearm conviction.

II.

Grace claims that the government failed to present sufficient evidence to prove that there was a nexus between her firearm and her drug trafficking. The government claims that since she failed to raise this sufficiency issue below with a Fed.R.Crim.P. 29 motion,³ we should review her claim only for "clear and gross injustice." Grace responds that she did not have to make such a motion for acquittal during a bench trial to preserve the normal de novo standard of review for sufficiency of the evidence claims, often stated as follows: "[W]hether, 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." United States v. Casas, 356 F.3d 104, 126 (1st Cir.2004) (internal quotation marks omitted). We must resolve this conflict before we consider the substance of Grace's claim.

A. Standard of Review

The government states that "neither [its] research nor Grace's reveals any authority from this circuit that decides the issue of whether a Rule 29 motion is also required to preserve a sufficiency-of-the-evidence attack on appeal from a bench trial." We agree that we have not squarely addressed this issue before. The government argues that we should apply a deferential standard of review rather than de novo review in these circumstances.

Rule 29 protects a defendant "against an improper or irrational verdict of the jury. In other words, Rule 29 takes cognizance of the reality that jurors may not always be capable of applying strictly the instructions of the court, or of basing their verdict entirely on the evidence developed at the trial." Moore's Federal Practice § 629.02[4] (3d ed.2002); see also 2A Charles Allen Wright, Arthur R. Miller & Edward H. Cooper, Federal Practice & Procedure § 461 (2000) (stating that Rule 29 vests judges with the responsibility of directing a not guilty verdict when the facts are so clear as to create a "risk that a jury...