U.S. v. King

• Decision Date: 19 January 2011
• Docket Number: No. 09–5179.,09–5179.
• Citation: 632 F.3d 646
• Parties: UNITED STATES of America, Plaintiff–Appellee,v.Jerrel Montel KING, Defendant–Appellant.
• Court: U.S. Court of Appeals — Tenth Circuit

632 F.3d 646

UNITED STATES of America, Plaintiff–Appellee,

v.Jerrel Montel KING, Defendant–Appellant.

No. 09–5179.

United States Court of Appeals, Tenth Circuit.

Jan. 19, 2011.

C. Robert Burton of The Burton Law Firm, P.C., Tulsa, OK, for Defendant–Appellant.Leena Alam, Assistant United States Attorney (Thomas Scott Woodward, United States Attorney, with her on the brief), Tulsa, OK, for Plaintiff–Appellee.Before LUCERO, BALDOCK, and HOLMES, Circuit Judges.^*HOLMES, Circuit Judge.

A jury found Jerrel Montel King guilty of one count of possession of marijuana with intent to distribute, in violation of 21 U.S.C. § 841(a)(1) and (b)(1)(D), and one count of possession of a firearm in furtherance of a drug-trafficking crime, in violation of 18 U.S.C. § 924(c)(1)(A)(i). He now appeals his conviction only as to the firearms count, arguing that the government presented insufficient evidence to show either that he “possessed” the firearm or that he did so “in furtherance” of a drug-trafficking crime. Exercising jurisdiction under 28 U.S.C. § 1291, we conclude that sufficient evidence was presented to support the jury's verdict. Accordingly, we affirm Mr. King's conviction.

I. BACKGROUND

Shortly after 11:00 p.m. on May 27, 2009, police were dispatched to the South Glen Apartments in Tulsa, Oklahoma, to address a reported disturbance involving a man with a gun. Upon her arrival at the scene, Officer Aubrie Thompson saw a number of people milling about outside two of the buildings in the apartment complex. After questioning a group of individuals gathered outside an open apartment, Officer Thompson turned her attention to two men, Mr. King and Shawnte Bryant, whom she spotted loitering between the two buildings.

As Officer Thompson questioned the two men about the disturbance, she noticed that Mr. King was “very agitated” and was being very uncooperative. R., Vol. II, at 22 (Trial Tr., dated Sept. 23, 2009). She also observed that Mr. Bryant was making circles during the course of their conversation and was “frantically looking [for something] on the ground.” Id. at 24–25. Finding this behavior odd, Officer Thompson shined her light on the area where Mr. Bryant was searching and observed a pistol lying on the ground about four inches away from Mr. King's foot. During this time, the two men were joined by Leginia Washington, a female companion of Mr. King, who previously had been sitting in a nearby parked car. Officer Thompson drew her weapon and told the two men and Ms. Washington to back away from the pistol. She then radioed dispatch, asking for additional units to be sent to the scene. Backup arrived shortly thereafter, and the police secured the gun—a chamber-loaded Hi–Point nine-millimeter semi-automatic pistol.

The police then took Mr. King, Mr. Bryant, and Ms. Washington into investigative detention, and Mr. King was patted down for weapons. The frisking policeman, Officer Robert Johnson, discovered more than $500 in cash and a set of digital scales with marijuana residue in Mr. King's pockets. Mr. King also had a cell phone on his person which, upon inspection, revealed several text messages that appeared to be drug-related and a photograph showing a Hi–Point rifle with an extended magazine.

Also present at the scene was Officer Todd Taylor. While assisting in the investigation, Officer Taylor received information from another officer that a car parked in the complex parking lot might contain contraband.¹ Ms. Washington was identified as the owner of the vehicle, and Officer Taylor obtained her permission to search it. In the vehicle, he discovered a chamber-loaded Stoeger .40 caliber semi-automatic pistol on the passenger-side front floorboard, as well as a “blunt” ² in the front passenger seat. A search of the trunk further revealed two large “bricks” of marijuana—one weighing 1119.53 grams and the other 1522.19 grams—and a loaded Hi–Point nine-millimeter rifle with an extended magazine.

Following this discovery, Officer Taylor took Mr. King into custody and advised him of his Miranda rights.³ Mr. King indicated at that time that all of the contraband found in the car was his, telling Officer Taylor, “it's all mine[;] I'll take it as long as my baby's mama don't go to jail.” R., Vol. II, at 59. Later, he repeated this admission during the intake process at the police station. Mr. King ultimately disclaimed ownership of the Stoeger pistol, however, after Officer Taylor warned him that he “d[id]n't want [him] to claim anything that is not [his].” Id. at 61. Yet, when the officer held up the Hi–Point pistol, Mr. King stated, “yeah, that one is mine.” Id. He also claimed ownership of both the rifle and the marijuana again, reiterating that “it's all mine, as long as ... my baby's mama don't go to jail.” Id. Nevertheless, when Officer Johnson asked Mr. King to write a statement detailing these facts, Mr. King refused to do so.

Mr. King was subsequently charged in a two-count indictment with possessing marijuana with the intent to distribute and possession of all three firearms in furtherance of a drug-trafficking crime. At trial, the government based its case primarily on the testimony of Officers Thompson, Taylor, and Johnson, who all detailed their roles in Mr. King's arrest. It also introduced the photograph found on Mr. King's phone of a rifle with an extended magazine, which Officer Taylor testified “appear[ed] to be” the weapon seized from the trunk of Ms. Washington's car. Id. at 62. Officer Taylor also read several text messages to the jury from Mr. King's cell phone that the officer believed related to drug trafficking.⁴ Officer Taylor admitted, however, that he did not observe Mr. King dealing drugs or physically possessing a weapon.

In addition, the government presented expert testimony from Officer Ronnie Leatherman, a ten-year veteran of the Tulsa Police Department. Officer Leatherman testified that the “bricks” of marijuana found in the trunk of Ms. Washington's car, which he valued at between $1200 and $1500 each, were consistent with distribution, and inconsistent with personal use, based on their size and packing. He also stated that scales like the one found on Mr. King's person are often used to weigh narcotics for sale, and he confirmed Officer Taylor's understanding that the text messages recovered from Mr. King's phone contained references to narcotics transactions. He further testified to the various roles firearms play in the drug-trafficking business. Officer Leatherman observed that, while the smaller guns would likely be carried by the dealer for personal protection, the Hi–Point rifle, due to its size, normally would be kept in either a car or house “for some type of protection, intimidation type purpose.” Id. at 94. As the rifle was locked in the trunk with the drugs, Officer Leatherman opined that “[t]he gun would be protection for the marijuana.” Id. at 98.

Finally, the government offered testimony from the manager of the Tulsa Police Department's forensic laboratory. The manager was responsible for processing the three firearms recovered during Mr. King's arrest and checking the weapons for latent fingerprints. He admitted that the one latent fingerprint found on the weapons did not match the fingerprint sample that Mr. King provided, but stated that this did not foreclose the possibility that Mr. King had handled the firearms. More specifically, he described how the “human factor”—i.e., the variable conditions of people's fingers and palms—can often make finding latent fingerprints a difficult endeavor. Id. at 104.

At the close of the government's case, Mr. King moved for a judgment of acquittal under Federal Rule of Criminal Procedure 29, citing insufficient evidence for a jury to infer either that the marijuana in the car was his or that he possessed the firearms in question. After the government withdrew its claim as to the Stoeger pistol, the district court denied Mr. King's motion, finding that there was “more than sufficient evidence from which a reasonable jury could infer that the Defendant possessed marijuana with the intent to distribute and possessed the two remaining firearms in connection with a drug trafficking crime.” Id. at 116. The defense then rested without presenting any additional evidence.

The jury eventually convicted Mr. King on the drug-trafficking count and on the firearm count, but only with respect to the Hi–Point rifle found alongside the marijuana in the trunk of Ms. Washington's car. Thereafter, Mr. King was sentenced to seventy-five months' imprisonment—fifteen months for possession with intent to distribute and the mandatory sixty months for possession of a firearm in furtherance of a drug-trafficking crime, to be served consecutively. This timely appeal followed.

II. DISCUSSION

Section 924(c)(1)(A) imposes a mandatory minimum five-year sentence upon “any person who, ... in furtherance of any [drug-trafficking] crime, possesses a firearm.” 18 U.S.C. § 924(c)(1)(A)(i). On appeal, Mr. King challenges the sufficiency of the evidence supporting his conviction under this statutory provision, contending that the evidence adduced at trial failed to show both essential elements of the charged offense—namely, that (1) he “possessed” the Hi–Point rifle found in Ms. Washington's trunk, and (2) he did so “in furtherance” of a drug-trafficking crime. Mr. King does not, however, challenge his conviction for possession of marijuana with intent to distribute.

“We review [a] challenge to the sufficiency of the evidence de novo, but in doing so we owe considerable deference to the jury's verdict.” United States v. Mullins, 613 F.3d 1273, 1280 (10th Cir.), cert. denied, ––– U.S. ––––, 131 S.Ct. 582, 178 L.Ed.2d 425 (2010). This court asks only “whether taking the evidence—both direct and circumstantial, together with the reasonable inferences to be drawn therefrom—in the light most favorable to the government, a reasonable jury could find the...