United States v. Irons

• Decision Date: 11 April 2022
• Docket Number: 20-30056
• Citation: 31 F.4th 702
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Rhett IRONS, AKA Luck, AKA Lucky, Defendant-Appellant.
• Court: U.S. Court of Appeals — Ninth Circuit

31 F.4th 702

UNITED STATES of America, Plaintiff-Appellee,

v.Rhett IRONS, AKA Luck, AKA Lucky, Defendant-Appellant.

No. 20-30056

United States Court of Appeals, Ninth Circuit.

Argued and Submitted June 10, 2021 Seattle, Washington

Filed April 11, 2022

Dennis Carrol (argued), Assistant Federal Public Defender, Office of the Federal Public Defender, Seattle, Washington, for Defendant-Appellant.

Michael S. Morgan (argued), Assistant United States Attorney; Brian T. Moran, United States Attorney; United States Attorney's Office, Seattle, Washington; for Plaintiff-Appellee.

Before: William A. Fletcher, Paul J. Watford, and Daniel P. Collins, Circuit Judges.

Dissent by Judge Watford

COLLINS, Circuit Judge:

Rhett Irons was convicted, after a jury trial, on charges of conspiracy to distribute fentanyl, possession of fentanyl with intent to distribute, and possession of a firearm in furtherance of that drug trafficking. We affirm his convictions on the two drug trafficking charges. However, we reverse his conviction on the firearms charge due to a faulty jury instruction, and we remand for a new trial on that count only.

I

A

After a cooperator who had been involved in trafficking fentanyl identified Rhett Irons as his supplier, an undercover agent purchased 199 fentanyl pills from Irons for $4,600 on June 22, 2018. Thereafter, in February 2019, agents obtained and executed a search warrant on Irons' home. The agents conducting the search found 542 fentanyl pills and 341 oxycodone pills in Irons' master bedroom. Agents also discovered a loaded Glock .380 caliber semiautomatic pistol underneath the queen-sized mattress in that bedroom. The gun was in a holster that contained two fully-loaded magazines, and its grip was visible outside of the holster. In the master bathroom adjacent to Irons' bedroom, agents found cocaine residue, a scale, small baggies, credit cards, and a rolled-up hundred-dollar bill. Agents discovered additional cash totaling more than $52,000 in various other locations throughout the house.

In November 2019, Irons was indicted on three charges: (1) conspiracy to distribute 400 grams or more of a substance containing fentanyl in violation of 21 U.S.C. §§ 841(a)(1), 841(b)(1)(A)(vi), 846 ; (2) possession, with intent to distribute, of 40 grams or more of a substance containing fentanyl in violation of 21 U.S.C. §§ 841(a)(1), 841(b)(1)(B)(vi) ; and (3) possession of a firearm in furtherance of a drug trafficking crime in violation of 18 U.S.C. § 924(c)(1)(A)(i). The indictment identified the two drug trafficking counts as the predicate drug trafficking crimes on which the § 924(c) charge was based.

B

In his opening statement at the ensuing jury trial, Irons' counsel conceded that Irons was involved in a drug trafficking conspiracy, that he possessed fentanyl with the intent to distribute, that he possessed a firearm, and that he sold or possessed at least 100 grams of fentanyl. However, he argued that (1) Irons did not possess the firearm "in furtherance of" a drug trafficking crime, as required to convict under the § 924(c) charge, see 18 U.S.C. § 924(c)(1)(A) ; and (2) Irons was not responsible for the quantity of drugs alleged in the conspiracy charge, i.e. , "400 grams or more" of a substance containing fentanyl, see 21 U.S.C. § 841(b)(1)(A)(vi). Irons' counsel thus indicated that Irons contested only the conspiracy and firearms charges and not the possession-with-intent-to-distribute charge. Likewise, in closing arguments, Irons' counsel contested only these two specific issues and told the jury that "I'm going to leave it up [to] your deliberative process as to the rest of the counts."

The Government introduced testimony from a number of persons who were involved in Irons' drug trafficking activities, and they stated that many of these transactions took place in Irons' bedroom or the adjoining master bathroom. For example, over an eight-month period, Nicholas Startzman bought thousands of fentanyl pills from Irons for nearly $470,000, and Startzman testified that these transactions occurred "[m]ainly in the master bathroom." Irons' former girlfriend, Deana West, testified that, on any given day, two to four people would go into Irons' bedroom or bathroom to buy drugs. Barry Horn testified that he sold drugs for Irons while living at his house and that, at any point in time, approximately five different people were regularly coming to the home to purchase drugs for redistribution.

The jury heard testimony that the firearm that was under Irons' mattress was readily accessible and would not take long to fire. A detective involved in the search stated that it took "just a couple of seconds" to lift the mattress completely. He also testified that, although there was "no round in the chamber," it would take "less than a second" to chamber a round from the gun's loaded magazine. Another police officer testified to the same effect.

The Government did not present any evidence that Irons had ever held, brandished, or discharged the firearm during a drug transaction. Startzman testified that he had never seen the gun before. West stated that she had seen the gun once when changing the sheets in Irons' bedroom and that Irons once told her that he was bringing "a gun" with him during a visit to Disneyland. Horn testified that one time when he woke up Irons at his prior residence, Irons reached under the mattress for his pistol in "hysteria." Horn "laughed it off," asking Irons, "Were you going to shoot me?" and Irons said no.

Over Irons' objection, Detective Brandon James was permitted to testify as an expert on drug traffickers' use of firearms. James testified that "because of the inherent dangerousness in the drug world," drug traffickers "will oftentimes arm themselves with weapons, including firearms to protect themselves and their product and cash." He stated that drug traffickers often have large amounts of cash on hand and that they are frequently robbed. He stated that when they are robbed, they typically do not report the robbery to the police because "[i]t's an odd 911 call to say that you've been robbed of your drugs."

Irons called a single witness at trial, Matthew Alway. Alway testified that he had sold Irons the firearm because Alway was moving out of Washington and did not have a place to store it. Alway stated that he intended to buy back the gun at some point but that he never did. Alway testified that the sale did not "have anything at all to do with a drug transaction of any sort."

The jury convicted Irons on all charges and, by special verdict, expressly found that Irons conspired to distribute 400 grams or more of a substance containing fentanyl and that he possessed with intent to distribute 40 grams or more. Irons received concurrent sentences of 120 months on the two drug trafficking charges, which was the mandatory minimum sentence for the conspiracy offense. See 21 U.S.C. §§ 841(b)(1)(A)(vi), 846. He was sentenced to the additional mandatory consecutive term of 60 months on the § 924(c) firearm charge. See 18 U.S.C. § 924(c)(1)(A)(i), (D)(ii). Irons timely appealed.

II

Irons contends that the district court's instructions failed adequately to explain the elements of the § 924(c) offense. His chief complaint is that, while the statute required the jury to find that Irons possessed a firearm "in furtherance of" a drug trafficking crime, see 18 U.S.C. § 924(c)(1)(A) (emphasis added), the court gave a supplemental instruction, in response to a jury note, that allowed the jury to convict merely by finding that Irons' possession of the gun had a "connection" to the trafficking. We agree with Irons that the supplemental instruction was flawed and that reversal is warranted.

A

As a preliminary matter, we address the parties' vigorous dispute over whether Irons sufficiently preserved below the jury-instruction objections he now raises and whether, as a result, we should review these objections only for plain error. See FED. R. CRIM. P. 52(b) ("A plain error that affects substantial rights may be considered even though it was not brought to the court's attention."); United States v. Powell , 955 F.2d 1206, 1210 (9th Cir. 1992) ("We review an instruction for plain error when the defendant has not raised a proper objection at trial."). To properly evaluate this issue, we set forth the relevant proceedings concerning the court's jury instructions in some detail.

The relevant language of § 924(c) imposes criminal punishment on any person "who, in furtherance of any such crime"—i.e. , a "crime of violence or drug trafficking crime"—"possesses a firearm." 18 U.S.C. § 924(c)(1)(A). The Government's proposed instruction on the § 924(c) charge was based on the then-applicable Ninth Circuit pattern jury instruction, and it did not contain any definition of the phrase "in furtherance of." Irons initially proposed two alternative instructions defining that phrase. The first defined this element as follows:

"In furtherance of" means furthering, advancing or helping forward.

Evidence that a defendant merely possessed a firearm at a drug trafficking crime scene is insufficient. There must be proof that the defendant intended that the weapon promote or facilitate the underlying crimes of conspiracy to distribute fentanyl or possession with intent to distribute fentanyl.

Irons' second, alternative instruction retained only the first sentence and deleted the further explanation in the second paragraph.

After receiving Irons' proposed jury instructions, the Government argued that "in furtherance of" should not be defined but that, if the court disagreed, it should instruct the jury to determine "whether the firearm was possessed to advance or promote the drug trafficking offense based on the totality of the circumstances, including the strategic location of the firearms, and its proximity and accessibility to the drugs."

The district court subsequently circulated a proposed set of jury instructions to the parties and held a conference...