United States v. Moody

• Decision Date: 22 June 2021
• Docket Number: No. 19-4869,No. 19-4857,19-4857
• Citation: 2 F.4th 180
• Parties: UNITED STATES of America, Plaintiff - Appellee, v. Marcus Troy MOODY, Defendant - Appellant. United States of America, Plaintiff - Appellee, v. Latoya Patrice Carter, Defendant - Appellant.
• Court: U.S. Court of Appeals — Fourth Circuit

2 F.4th 180

UNITED STATES of America, Plaintiff - Appellee,

v.Marcus Troy MOODY, Defendant - Appellant.

United States of America, Plaintiff - Appellee,

v.Latoya Patrice Carter, Defendant - Appellant.

No. 19-4857

No. 19-4869

United States Court of Appeals, Fourth Circuit.

Argued: March 12, 2021

Decided: June 22, 2021

ARGUED: Trevor Jared Robinson, TREVOR JARED ROBINSON, ATTORNEY AT LAW, Norfolk, Virginia; Mark Bodner, Fairfax, Virginia, for Appellants. Kristen Shannon Taylor, UNITED STATES DEPARTMENT OF JUSTICE, Washington, D.C., for Appellee. ON BRIEF: G. Zachary Terwilliger, United States Attorney, Alexandria, Virginia, Peter G. Osyf, Assistant United States Attorney, OFFICE OF THE UNITED STATES ATTORNEY, Newport News, Virginia, for Appellee.

Before GREGORY, Chief Judge, and FLOYD and THACKER, Circuit Judges.

Affirmed by published opinion. Judge Floyd wrote the opinion in which Chief Judge Gregory and Judge Thacker joined.

FLOYD, Circuit Judge:

Marcus Moody and Latoya Carter appeal their convictions of several drug and firearm counts arising out of an early morning traffic stop in Newport News, Virginia. Both Moody and Carter challenge the sufficiency of the evidence used to convict them, and Moody separately challenges two jury instructions given by the district court. This appeal highlights the unfortunate ease with which our law permits conspiracy convictions for conduct that overlaps almost entirely with underlying substantive offenses. Constrained as we are by the government's charging decisions and our past conspiracy precedent, we affirm on all counts.

I.

A.

At approximately 3:45 AM on December 30, 2018, Officer Christian Paulino spotted a Volkswagen sedan driven by Carter fail to stop before the white line at the intersection of Sixteenth Street and Ivy Avenue in Newport News, Virginia. Paulino did not pull the car over but started his body camera and followed the car for several more blocks. After Paulino started following the car, Carter tailgated the car in front of her and swerved several times into the parking lane. Paulino turned on his emergency lights and then saw Moody—who was sitting was in the Volkswagen's passenger's seat—reach behind the driver's seat twice as Carter pulled the car over.

At trial, Paulino claims to have smelled marijuana when he approached the car, although none was ever found. Paulino asked Moody why he reached behind the driver's side seat prior to being pulled over, and Moody answered several times "[b]ecause that's my girl." J.A. 40. Carter also told Paulino that a third passenger had been in the car earlier that night, but they had dropped that person off before the stop.

After a second officer arrived at the scene, Paulino searched Moody, Carter, and the Volkswagen. He started by ordering Moody out of the car and searching him, finding one cell phone and roughly $3,900 hidden in bundles of different sizes across nine pockets of Moody's clothing. Moody told Paulino he won the money at a dice game. Paulino then ordered Carter out of the car and searched her, finding only a cell phone.

Next, Paulino searched the Volkswagen. He started in the front of the car, finding a loaded, .9-millimeter magazine in the center console, next to the gearshift and below the air conditioner controls. He then moved to the back, spotting a blue Nike bag on the floorboard behind the driver's seat. Paulino moved the bag and searched underneath the driver's-side seat, revealing a Glock 43 pistol. The Glock 43 was loaded with .9-millimeter ammunition, including one bullet in the chamber. Paulino testified at trial that the Glock 43 would not have been accessible to the driver because it was hidden under the rear portion of the driver's seat. Paulino then searched the Nike bag, which contained four empty plastic baggies, three purple gloves, an electronics charger, a scale with white residue on it, and one clear plastic bag containing 21.33 grams of loose powder cocaine and 54.04 grams of compressed powder cocaine. Lastly, Paulino searched under the front passenger's seat, finding a Glock 22 pistol. The Glock 22 was loaded with an extended magazine containing .40-caliber ammunition, including one in the chamber. Neither Moody nor Carter made any statements during the search admitting to possession or knowledge of pistols or cocaine.

B.

On May 15, 2019, Moody and Carter were indicted for conspiracy to possess with intent to distribute cocaine in violation of 21 U.S.C. § 846 (Count One); possession with intent to distribute cocaine in violation of 21 U.S.C. § 841(a)(1), (b)(1)(C) (Count Two); and two counts of possession of a firearm in furtherance of a drug trafficking offense in violation of 18 U.S.C. § 924(c)(1)(A), (c)(2) (Counts Three and Four). Moody was separately charged with two counts of being a felon in possession of a firearm in violation of 18 U.S.C. §§ 922(g)(1), 924(a)(2) (Counts Five and Six).

Prior to trial, the parties agreed to several stipulations concerning the two Glock pistols. First, Moody and Carter stipulated that both pistols "were in operable condition on December 30, 2018," and both had "traveled in interstate ... commerce." J.A. 164. Moody also stipulated that on the day of the traffic stop, he "was a convicted felon and knew on or before [that date that] he had been previously convicted of a crime punishable by imprisonment for a term exceeding one year." J.A. 166.

The parties tried this case to a jury over two days in August 2019. First, the government called Paulino to testify about the traffic stop. Second, the government called Michael Kaelin—the store manager of Superior Pawn & Gun in Hampton, Virginia. Kaelin testified that Carter originally purchased the Glock 43 found under her driver's seat on October 29, 2018. Carter then pawned the pistol back to the store on November 5, 2018 and repurchased it on December 29, 2018—the day before the traffic stop. Third, the government called Sergeant Randy Ronnenberg—a twenty-nine-year veteran of the Newport News Police Department—as an expert witness on the various uses of narcotics.

Ronnenberg explained for the jury the difference between evidence of cocaine possession for individual use and evidence of cocaine possession with intent to distribute. First, cocaine users typically possess three-and-one-half grams or less of cocaine, whereas mid-level dealers generally carry ounces. According to Ronnenberg, the quantity of cocaine found in the Nike bag was more consistent with distribution than personal use and valued $8,000 to $10,000. Second, compressed cocaine—which Paulino found in the Nike bag—is indicative of distribution. Third, sellers are often found with both drugs and items like cell phones, scales, packaging materials, and gloves. Fourth, individuals engaged in narcotics distribution divide cash across various pockets in case they are robbed. Fifth, the intersection of Sixteenth Street and Ivy Avenue—where Paulino first observed Moody and Carter—was an area known for a high volume of drug sales.

After the government rested its case, Moody and Carter moved for judgment of acquittal under Federal Rule of Criminal Procedure 29. Although the district court expressed some skepticism as to whether Moody possessed the Glock 22 found under his seat, the district court ultimately denied the motions and sent the case to the jury. Neither Moody nor Carter presented a defense case. The jury ultimately convicted both Moody and Carter on all counts, and they timely appealed following sentencing.

II.

On appeal, Moody and Carter challenge the district court's denial of their Rule 29 motions and contend that the government's evidence was insufficient to convict them as a matter of law. Rule 29 directs district courts to "enter a judgment of acquittal of any offense for which the evidence is insufficient to sustain a conviction." Fed. R. Crim. P. 29(a). "We review de novo a district court's denial of a Rule 29 motion ...." United States v. Lam , 677 F.3d 190, 198 (4th Cir. 2012). We must affirm a conviction when substantial evidence viewed "in the light most favorable to the prosecution" supports the verdict. United States v. Kellam , 568 F.3d 125, 140 (4th Cir. 2009). In doing so, we make "all reasonable inferences" in favor of the government and do not weigh evidence or credibility. United States v. Tresvant , 677 F.2d 1018, 1021 (4th Cir. 1982). Evidence can be either direct or circumstantial, id. , and evidence is substantial when a reasonable jury could find it "adequate and sufficient" to establish guilt beyond a reasonable doubt, United States v. Burgos , 94 F.3d 849, 862 (4th Cir. 1996) (en banc). We begin our analysis with Moody's and Carter's substantive counts of convictions before turning to the conspiracy count.

A.

To prove possession of cocaine with intent to distribute, the government must establish that Moody and Carter (1) possessed the cocaine (2) knowingly and (3) with intent to distribute. Burgos , 94 F.3d at 873 ; 21 U.S.C. § 841(a)(1). "[P]ossession may be actual or constructive, and it may be sole or joint." United States v. Nelson , 6 F.3d 1049, 1053 (4th Cir. 1993), overruled on other grounds by Bailey v. United States , 516 U.S. 137, 116 S.Ct. 501, 133 L.Ed.2d 472 (1995). Constructive possession requires "ownership, dominion, or control over the contraband or the premises or vehicle in which the contraband was concealed" and "knowledge of the presence of the contraband." United States v. Herder , 594 F.3d 352, 358 (4th Cir. 2010). Because constructive possession requires knowledge of contraband, the same evidence that establishes constructive possession of cocaine will establish the first and second elements of § 841(a)(1). It is not sufficient for a defendant to simply be present where drugs are found or associate with another individual who possesses drugs. United States v. Rusher , 966 F.2d 868, 878 (4th Cir. 1992). But circumstantial evidence may be sufficient, "consider[ing] the totality of the circumstances...