United States v. Marcus Moody ( 2021 )


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  •                                     PUBLISHED
    UNITED STATES COURT OF APPEALS
    FOR THE FOURTH CIRCUIT
    No. 19-4857
    UNITED STATES OF AMERICA,
    Plaintiff - Appellee,
    v.
    MARCUS TROY MOODY,
    Defendant - Appellant.
    No. 19-4869
    UNITED STATES OF AMERICA,
    Plaintiff - Appellee,
    v.
    LATOYA PATRICE CARTER,
    Defendant - Appellant.
    Appeals from the United States District Court for the Eastern District of Virginia, at
    Newport News. Robert G. Doumar, Senior District Judge. (4:19-cr-00051-RGD-LRL-1,
    4:19-cr-00051-RGD-LRL-2)
    Argued: March 12, 2021                                        Decided: June 22, 2021
    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.
    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.
    2
    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
    3
    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
    4
    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
    5
    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.
    6
    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
    7
    (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 surrounding the defendant’s
    arrest and his alleged possession,” to establish constructive possession. Herder, 
    594 F.3d at 358
    .
    The government must also prove beyond a reasonable doubt that Moody and Carter
    had a specific intent to distribute the cocaine. See United States v. Fisher, 
    912 F.2d 728
    ,
    730 (4th Cir. 1990). When considering this element, a jury can look to circumstantial
    evidence such as the quantity of drugs, the presence of drug-packaging supplies, large
    amounts of cash, and the presence of firearms. 
    Id.
     at 730–31.
    Moody and Carter each separately argue that the government failed to establish their
    respective possession of the contraband. However, we conclude that the government has
    established constructive possession for both defendants.
    8
    1.
    On appeal, Moody contends there was no evidence that he either knew the cocaine
    was present in the Volkswagen or that he constructively possessed the cocaine. Moody’s
    arguments emphasize types of evidence missing from the government’s case. Moody never
    admitted to knowing about the cocaine, and the government never found any direct
    evidence linking him to the cocaine such as a list of drug customers, forensic evidence,
    drug residue on Moody’s body, or cell phone data revealing drug sales. Moody therefore
    attempts to analogize this case to United States v. Blue, 
    957 F.2d 106
    , 107–08 (4th Cir.
    1992). In Blue, we held that a passenger’s proximity to contraband combined with a single
    furtive movement in the direction of that contraband is insufficient to prove possession.
    
    Id. at 108
     (“Blue’s shoulder dip alone does not transform Blue from a mere passenger in
    the car to a possessor of whatever is discovered underneath the seat in which he is sitting.”).
    True, we noted in Blue that the government failed to provide any physical evidence of
    possession, any connection with the car in which the gun was found, or evidence of prior
    gun possession. 
    Id.
     But Moody’s reliance on Blue to focus on the types of evidence
    missing from the government’s presentation ignores what the government did present here:
    other evidence on which the jury could have reasonably relied in convicting Moody.
    Even after Blue, proximity to contraband remains a factor for the jury to consider
    when assessing the evidence. United States v. Shrader, 
    675 F.3d 300
    , 308–09 (4th Cir.
    2012) (“[W]hile we have held that proximity alone is not conclusive on the question of
    dominion and control, we have never held it to be irrelevant.”).              And additional
    circumstantial evidence, combined with Moody’s proximity to the cocaine, could lead a
    9
    reasonable jury to conclude Moody possessed the cocaine. First, Moody and Carter were
    spotted at 3:42 AM driving away from an intersection known by Ronnenberg to be a
    frequent site of drug sales. See Herder, 
    594 F.3d at 359
     (recognizing presence in area
    known for illicit drug activity at night is relevant evidence). Second, after Paulino turned
    on his sirens, he saw Moody reach into the area of the car where the cocaine was located.
    Third, the jury could have found Moody’s non-responsive answer to Paulino’s question
    about why he was reaching into that area to be evasive or suspicious. 
    Id.
     (considering the
    defendant’s “suspicious answers” when analyzing constructive possession).           Fourth,
    Moody’s statement that Carter was “my girl” could be used by the jury to infer a
    relationship with Carter, who was driving the Volkswagen. See J.A. 40. Fifth, Moody was
    found with several thousand dollars of cash stored in various pockets in random amounts
    of mixed denominations. Based on Ronnenberg’s testimony, a reasonable jury could
    conclude that this large amount of money and the way it was hidden was consistent with
    drug sales. See Herder, 
    594 F.3d at 359
     (stating that seized money “consistent with the
    types of ‘folds’ used in drug distribution” could be considered).
    Taken together, a reasonable jury could have inferred from this evidence that Moody
    was in the area of Sixteenth and Ivy to sell cocaine, that he earned the money found in his
    pockets by selling cocaine, that he attempted to conceal the drugs once Paulino turned on
    his sirens, and that he answered evasively about that attempt when asked. Admittedly,
    there are potentially innocent explanations for each of these pieces of evidence. And this
    case lacks direct evidence like fingerprints or residue that could more conclusively tie
    10
    Moody to the cocaine. 1 But considering the totality of the circumstantial evidence, the
    district court did not err in sending this charge to the jury.
    2.
    Carter separately contends the evidence was insufficient to convict her of possession
    of cocaine with intent to distribute. Carter argues that (1) the cocaine was contained in a
    closed Nike bag behind her seat and therefore not in plain view; (2) there is no evidence
    she made any furtive movements toward the Nike bag containing the cocaine; (3) no
    forensic evidence tied her to the cocaine; and (4) she made no incriminating statements.
    However, the jury was entitled to consider Carter’s status as the driver of the
    Volkswagen in which the drugs were found. Notably, if a factfinder determines that a
    driver had dominion and control over a vehicle, that is sufficient to establish constructive
    possession of contraband hidden in that vehicle. See Herder, 
    594 F.3d at 358
    . This Court
    has looked to several factors to decide when an individual exercises dominion and control
    over a vehicle, although no one factor is dispositive and the inquiry is fact-specific. See
    United States v. Lawing, 
    703 F.3d 229
    , 240 (4th Cir. 2012) (driver and owner of vehicle);
    United States v. Armstrong, 
    187 F.3d 392
    , 396 (4th Cir. 1999) (owner and sole occupant
    of vehicle); United States v. Branch, 
    537 F.3d 328
    , 343 (4th Cir. 2008) (driver of vehicle
    1
    Moody and Carter do not raise a specific challenge to the sufficiency of the
    government’s evidence concerning the specific intent to distribute the cocaine, focusing
    instead on the failure to prove possession. Regardless, the jury could have reasonably
    concluded from Ronnenberg’s testimony combined with the value and quantity of the
    cocaine, its proximity to paraphernalia associated with drug sales, and the presence of
    compressed powder cocaine established the specific intent to distribute.
    11
    with permission of owner); Herder, 
    594 F.3d at 358
     (driver and sole occupant but
    ownership unclear).
    In this case, Carter was neither the sole occupant nor the owner of the Volkswagen,
    which weakens the inference of dominion and control based on her status as the driver of
    the Volkswagen. But the fact that Carter drove the Volkswagen remains relevant to
    determining whether she exercised knowing dominion and control over the cocaine.
    “There is an inference that the driver of the vehicle has knowledge of the contraband within
    it . . . .” United States v. Laughman, 
    618 F.2d 1067
    , 1076 (4th Cir. 1980). And additional
    circumstantial evidence helps to strengthen the connection between Carter, as driver, and
    the cocaine found behind her seat. See Burgos, 
    94 F.3d at 863
     (emphasizing “the complete
    picture that the evidence presents”). First, there was evidence of at least some relationship
    between Carter and Moody.         Second, Carter owned the loaded Glock 43 hidden
    strategically under her seat and found right next to the Nike bag holding the cocaine. The
    evidence also reveals that Carter had repurchased the Glock 43 from a pawnshop the day
    before the traffic stop. A reasonable jury could conclude from this evidence that Carter
    repurchased the Glock 43 and strategically concealed it under her seat because she knew
    she would be in possession of cocaine later that evening and wanted to protect it.
    12
    B.
    Moody and Carter next challenge their convictions for possession of a firearm in
    furtherance of a drug trafficking offense under § 924(c)(1)(A), (c)(2). 2 To sustain Moody’s
    and Carter’s § 924(c) convictions, we must conclude that a jury could find beyond a
    reasonable doubt that they (1) committed a drug trafficking offense and (2) possessed a
    firearm (3) in furtherance of that drug offense. See 
    18 U.S.C. § 924
    (c)(1)(A); United States
    v. Lomax, 
    293 F.3d 701
    , 704–05 (4th Cir. 2002). As discussed above, Moody and Carter
    possessed cocaine with intent to distribute. Therefore, the only remaining questions are
    whether they possessed the Glock 22 and Glock 43 pistols and whether they did so to
    further the drug trafficking offense. In Lomax, we endorsed the use of a variety of factors
    to decide whether possession of a firearm furthered a drug offense, including: the type of
    drug offense, the type of firearm, its proximity to drugs and drug profits, its accessibility,
    whether the firearm is illegally possessed, whether the firearm is stolen, whether the
    firearm is loaded, and the general circumstances surrounding the possession. See 
    293 F.3d at 705
    .
    Moody challenges the sufficiency of the evidence used to convict him both for his
    2
    § 922(g)(1) felon-in-possession counts and his § 924(c)(1)(A) counts.           Moody’s
    sufficiency argument regarding his § 922(g)(1) convictions turns entirely on the
    government’s failure to establish knowing possession of the pistols. Because Moody
    stipulated to the remaining elements of § 922(g)(1), we do not discuss that charge
    separately when assessing the sufficiency of the evidence.
    13
    1.
    Moody contends that the evidence is insufficient to establish his constructive
    possession of either the Glock 22 or Glock 43 pistols found in the Volkswagen. He argues
    that no forensic evidence or statements connect him to either weapon, he was not seen
    holding either weapon, neither weapon would have been visible to him from the
    passenger’s seat, and he did not own the Volkswagen in which the guns were found.
    Moody again analogizes to Blue to argue that his proximity to the guns along with his
    movements prior to being pulled over did not elevate him above the status of passenger to
    that of possessor.
    Blue does not support Moody’s position in the way he claims. Some further
    discussion of the facts of that case are warranted. In Blue, a police officer investigating
    drug crimes saw Blue and a second individual leave a house and get in a car, which the
    officer then pulled over. 
    957 F.2d at
    106–07. As the officer left his car, he saw Blue’s
    shoulder “dip as if the passenger were reaching under the seat with his right hand.” 
    Id. at 107
    .   When officers searched Blue—who was seated in the passenger’s seat—they
    discovered drug paraphernalia and “a small amount of heroin.” 
    Id.
     Officers also found a
    loaded firearm under the passenger’s seat. 
    Id.
     We held that this evidence was “just barely”
    insufficient to support a conviction. 
    Id. at 108
    .
    Here, prosecutors presented more evidence than in Blue to support Moody’s firearm
    convictions. We may “not examine evidence in a piecemeal fashion, but [must] consider
    it in cumulative context,” looking to “the complete picture, viewed in context and in the
    light most favorable to the Government.” Burgos, 
    94 F.3d at 863
    . Viewed cumulatively,
    14
    Paulino stopped Moody and Carter at 3:42 AM after spotting them leaving an intersection
    known for drug sales. Moody was found in a vehicle in close proximity to two firearms
    hidden under the passenger’s and driver’s seats. Both firearms were loaded and concealed
    under car seats and were found in the same car as a bag of cocaine valuing at least $8,000,
    which Moody possessed.
    As to the Glock 43 hidden under the driver’s seat, a reasonable jury could take this
    evidence and view it alongside Moody’s movements into the area of the Volkswagen where
    that pistol was hidden as well as his non-responsive statements about those movements.
    The jury was also free to consider Moody’s relationship to Carter and Carter’s recent
    repurchase of that firearm as well as evidence that .9-milimeter ammunition was in plain
    view next to Moody in the Volkswagen’s center console. There was sufficient evidence
    for a reasonable jury to conclude Moody had the knowledge and ability to exercise
    dominion and control required to constructively possess that pistol.
    More challenging is Moody’s conviction for possessing the Glock 22 found under
    the passenger’s seat. Unlike the Glock 43 found under the driver’s seat, there is no
    evidence of Moody reaching into the area of the car where the Glock 22 was found, no
    evidence of who owned the pistol, nor any ammunition for that pistol in plain view and
    within reach of Moody. However, the Glock 22 was loaded with an extended magazine
    and concealed in the same manner as the Glock 43 under the driver’s seat. Moody was
    also in close proximity to the Glock 22, which remains a relevant consideration for
    constructive possession. See Shrader, 
    675 F.3d at
    308–09. And the Glock 22 was located
    near the front of the driver’s seat with the magazine facing toward the passenger. Paulino
    15
    testified at trial that the pistol would have been readily accessible to the passenger. A
    reasonable jury, considering this evidence alongside the totality of the evidence discussed
    above, could conclude beyond a reasonable doubt that Moody had both knowledge of and
    the ability to control the Glock 22 and constructively possessed it in order to protect both
    the cocaine and money he was carrying.
    2.
    Carter’s possession of the two firearms is more easily established. First, the
    evidence reveals that Carter owned the Glock 43 pistol found under her seat, having
    repurchased it from a pawnshop the prior day. Constructive possession can be established
    via ownership of the contraband in question. Herder, 
    594 F.3d at 358
    . Because Carter
    owned the Glock 43 found under her seat, there was clearly sufficient evidence to establish
    constructive possession.
    Second, there was sufficient evidence, taken as a whole, to establish Carter’s
    possession of the Glock 22 pistol found under Moody’s seat. Carter’s status as the driver
    of the Volkswagen is relevant to her knowledge and ability to exercise dominion and
    control over the Glock 22. See Laughman, 
    618 F.2d at 1076
     (noting the “inference” that a
    car’s driver knows what contraband it contains). 3 And Carter’s status as the driver has to
    3
    The government argues that Carter’s “dominion and control over the vehicle in
    which two loaded and chambered firearms were located . . . alone is sufficient to support a
    conviction under [a] constructive possession theory.” Resp. Br. at 27. The government
    cites our opinion in Herder in support of this contention but reads the case too broadly. In
    Herder, the defendant was “the driver and sole occupant” of the vehicle and “the drugs
    16
    be viewed collectively alongside other evidence: namely, that Carter was driving a vehicle
    containing distribution quantities of cocaine next to a pistol that she admittedly owned,
    having repurchased it the previous day. That pistol—the Glock 43—was loaded and
    concealed under her seat just like the Glock 43 under Moody’s seat. Under the totality of
    these specific circumstances, a reasonable jury could have concluded both that Carter knew
    the Glock 22 was present and exercised joint possession of it with Moody. 4
    C.
    Finally, Moody and Carter challenge their Count One conspiracy convictions under
    § 846. To prove this conspiracy, the government had to establish (1) that Moody and Carter
    entered into an agreement to possess cocaine with intent to distribute; (2) that both
    defendants knew of the conspiracy; and (3) that both defendants knowingly and voluntarily
    entered into that conspiracy. United States v. Hackley, 
    662 F.3d 671
    , 678 (4th Cir. 2011).
    were within his reach,” both of which “indicat[ed] a high degree of dominion and control
    over the drugs.” 
    Id.
     at 358–59. Here, however, Carter was not the Volkswagen’s sole
    occupant, nor is it clear she could have reached the Glock 22 hidden under the front
    passenger’s seat. Herder does not dispose of this count on appeal.
    4
    Moody and Carter also indirectly attack the sufficiency of the evidence as to the
    requirement that their possession of the pistols further a drug trafficking offense. Moody
    contends that because he did not possess the cocaine, any possession of the pistols could
    not have furthered his commission of a trafficking crime. Carter argues that the proximity
    of her Glock 43 to the Nike bag was “a mere coincidence.” Opening Br. at 32. But under
    Lomax, a jury could have considered that the guns were loaded, that they were found near
    the cocaine and Moody’s profits from the cocaine, the street value of the cocaine, the fact
    that Moody possessed the guns illegally, as well as Ronnenberg’s testimony that dealers
    carry semi-automatic pistols as protection to reasonably conclude Moody and Carter
    possessed the pistols to protect the cocaine and profits earned from selling it. See 
    293 F.3d at 705
     (describing factors used to determine whether firearms furthered a drug offense).
    17
    Because Carter and Moody were the only defendants in this case, proof of an agreement
    between them will also constitute proof of knowledge of this limited conspiracy to possess
    the Nike bag of cocaine.
    Conspiracy offenses are distinguished from underlying crimes due to “[t]he
    presence of a knowing and voluntary agreement.” Id. at 679. Indeed, the “gravamen of
    the crime of conspiracy is an agreement to effectuate a criminal act.” Laughman, 
    618 F.2d at 1074
    . The agreement does not need to be explicit, and it can be proven entirely through
    circumstantial evidence. United States v. Gomez-Jimenez, 
    750 F.3d 370
    , 378 (4th Cir.
    2014). But the government may not simply use a defendant’s commission of an underlying
    substantive offense to prove the existence of a separate agreement to commit that offense
    with another person. “[I]f the object of the offense is the distribution through a sale of
    cocaine, . . . a conspiracy to commit the distribution offense must involve an agreement
    separate from the immediate distribution conduct that is the object of the conspiracy.”
    United States v. Edmonds, 
    679 F.3d 169
    , 173–74 (4th Cir. 2012), vacated on other grounds,
    
    568 U.S. 803
     (2012). “[T]he government must take care not to ask the jury to infer an
    agreement based on guilt of” underlying offenses alone. Hackley, 662 F.3d at 681.
    When assessing circumstantial evidence of an agreement, this Court has looked to
    a defendant’s “relationship with other members of the conspiracy, the length of this
    association, his attitude, conduct, and the nature of the conspiracy.” United States v.
    Collazo, 
    732 F.2d 1200
    , 1205 (4th Cir. 1984). The government presented very little
    evidence about the relationship between Moody and Carter beyond traveling in the same
    car and Moody’s statement about Carter: “that’s my girl.” J.A. 40. Although that evidence
    18
    certainly bears on Moody’s constructive possession of contraband by showing he was not
    in a stranger’s car, it does not describe the nature or duration of their relationship and is
    therefore less probative of the existence of a criminal agreement between the two. Cf.
    United States v. Yearwood, 
    518 F.3d 220
    , 224 (4th Cir. 2008) (evidence of “a longstanding
    social and business relationship”). Second, the government presented no evidence of any
    prior conversations or meetings that might suggest the formation of a plan. Cf. United
    States v. Carmichael, 
    685 F.2d 903
    , 907, 909 (4th Cir. 1982) (agreement established by
    multiple supper meetings at the defendant’s lake house); United States v. Caudle, 
    758 F.2d 994
    , 996 (4th Cir. 1985) (prior meetings to discuss criminal plans). Nor was there any trial
    testimony about the various roles different defendants played in the conspiracy. Cf. United
    States v. Chambers, 
    985 F.2d 1263
    , 1270 (4th Cir. 1993) (testimony of co-conspirator as
    to the contribution of other co-conspirators), superseded on other grounds by U.S.S.G.
    § 3B1.1 cmt. n.2.
    Most of the evidence in this case simply amounts to the circumstances surrounding
    Paulino’s traffic stop and subsequent search of the Volkswagen. However, there is
    ultimately a sufficient quantum of circumstantial evidence of an agreement to justify the
    conspiracy conviction. As stated above, there is at least some evidence of a relationship
    between Moody and Carter. And a reasonable jury could infer from Moody’s and Carter’s
    joint possession of the Glock 22 and Glock 43 pistols that they planned in advance to bring
    those weapons to further their cocaine possession. This inference is strengthened by
    evidence that both weapons were loaded and strategically hidden as well as by evidence
    that the car contained extra ammunition for the Glock 43. It is further supported by the
    19
    fact that Carter had repurchased one of the two pistols the day before the traffic stop, from
    which the jury could infer an intent to bring that gun as part of a plan to protect the cocaine.
    This evidence is separate from the mere fact of cocaine possession and avoids the
    conclusion that the jury could only have inferred an agreement from possession alone.
    When combined with the facts and circumstances surrounding Moody’s and Carter’s
    possession of the cocaine, there was sufficient evidence from which a reasonable jury could
    find both knowledge of and an agreement to enter the conspiracy. And a jury could find
    knowing and voluntary participation in this conspiracy based on evidence that Carter drove
    the car containing the drugs and firearms as well as Moody’s possession of drug-related
    cash.
    We reach this conclusion reluctantly. This prosecution highlights the unfortunate
    breadth of our modern conspiracy law and the government’s “growing habit to indict for
    conspiracy in lieu of prosecuting for the substantive offense itself, or in addition thereto,”
    which “constitutes a serious threat to fairness in our administration of justice.” Krulewitch
    v. United States, 
    336 U.S. 440
    , 445–46 (1949) (Jackson, J., concurring). Indeed, there is
    little to distinguish joint possession of the drugs and guns in this case from some
    independent agreement or scheme on the part of the defendants. And there is no evidence
    that the conspiracy extended beyond an agreement by Moody and Carter to possess the
    cocaine and guns found on the night in question. “Of course, it is for prosecutors rather
    than courts to determine when to use a scatter gun to bring down the defendant . . . .” 
    Id. at 452
    . But we are given pause by how easily substantive law and conspiracy layer onto
    20
    each other in the context of joint possession, despite the lack of any evidence suggesting a
    broader conspiracy, either in terms of members or duration.
    *      *      *
    The government did not present an overwhelming case against Moody and Carter.
    But, under Rule 29, we do not ask whether a reasonable jury could have acquitted the two,
    nor whether we—sitting as jury members—would have voted to acquit them. We ask only
    whether any reasonable jury could have convicted based on the evidence presented. If the
    evidence in Blue “f[ell] outside, but just barely, the realm of the quantum of evidence
    necessary to support a finding of constructive possession,” 
    957 F.2d at 108
    , then the
    additional evidence in this case falls inside that line—but just barely so.
    III.
    Moody separately challenges two of the jury instructions given by the district court.
    First, Moody argues that the court erroneously instructed the jury as to the required mens
    rea for his § 922(g) felon-in-possession counts.         Moody asks us to find the court’s
    instruction insufficient following Rehaif v. United States, 
    139 S. Ct. 2191
     (2019), because
    it did not require the jury to consider whether Moody knew that his prior felony conviction
    prohibited him from owning a firearm. Second, Moody challenges the district court’s
    instruction on aiding-and-abetting liability, contending that the jury was not required to
    consider whether Moody had advance knowledge Carter would bring firearms to further
    their joint possession of the cocaine. Moody did not object to either instruction at trial, so
    we review both instructions for plain error. Gregg v. Ham, 
    678 F.3d 333
    , 338 (4th Cir.
    21
    2012). “[P]lain error review requires 1) error; 2) plain under current law; 3) that affects
    substantial rights, i.e. is prejudicial to the defendant; and 4) which seriously affects the
    fairness, integrity or public reputation of judicial proceedings.” United States v. Rogers,
    
    18 F.3d 265
    , 268 (4th Cir. 1994).
    A.
    Moody was charged in Counts Five and Six with being a felon in possession of the
    Glock 22 and Glock 43 pistols pursuant to § 922(g)(1). The text of that provision
    criminalizes the possession of a firearm by a person “who has been convicted in any court
    of[] a crime punishable by imprisonment for a term exceeding one year.” 
    18 U.S.C. § 922
    (g)(1). A penalty provision contained in § 924(a) sets forth a statutory maximum
    penalty of ten years’ imprisonment for any person who “knowingly violates” § 922(g)(1).
    
    18 U.S.C. § 924
    (a)(2). Shortly before trial in this case, the Supreme Court decided Rehaif,
    which held that § 924(a)’s knowledge requirement applies both to § 922(g)’s possession
    element and to its status element. 
    139 S. Ct. at 2200
    . Thus, the government must prove
    beyond a reasonable doubt that a defendant “knew he belonged to the relevant category of
    persons barred from possessing a firearm.” 
    Id.
    Before trial, Moody and the government stipulated that he “was a convicted felon
    and knew on or before December 30, 2018, he had been previously convicted of a crime
    punishable by imprisonment for a term exceeding one year.” J.A. 166 (emphasis added).
    At trial, the district court instructed the jury that the government must prove the following
    beyond a reasonable doubt: (1) Moody’s knowing possession of the Glock 22 and 43
    22
    pistols; (2) Moody’s prior conviction of an offense punishable by longer than one year of
    incarceration; (3) Moody’s knowledge of that prior conviction at the time he possessed the
    firearms; and (4) that the firearms had entered the stream of interstate commerce. 5 The
    district court then instructed the jury that Moody “already stipulated that he knew that he
    was convicted and he knew he was a convicted felon.” J.A. 156. Moody did not object to
    this instruction.
    Moody argues for the first time on appeal that the district court did not properly
    describe the mens rea requirement because he believes Rehaif requires the government to
    prove not just knowledge of status but also knowledge that this status prohibits firearm
    possession. We have summarily rejected this argument in the past. United States v.
    Collins, 
    982 F.3d 236
    , 242 n.2 (4th Cir. 2020) (describing this assertion as “a mistake of
    law argument, which is not a valid defense”). 6
    And with good reason. Nothing in Rehaif suggests the reading that Moody invites
    us to adopt. In that case, the Supreme Court made clear that § 924(a)’s knowledge
    requirement should apply to both the possession and status elements of § 922(g) offenses.
    Rehaif, 
    139 S. Ct. at 2200
    . The Court’s holding was based on the typical presumption that
    5
    The parties stipulated to this last element, which is not challenged on appeal.
    6
    Six sister circuits to take up the issue have similarly decided that Rehaif does not
    require the government to prove knowledge that defendants’ status prohibits them from
    owning a firearm. United States v. Benton, 
    988 F.3d 1231
    , 1238–41 (10th Cir. 2021);
    United States v. Robinson, 
    982 F.3d 1181
    , 1187 (8th Cir. 2020); United States v. Johnson,
    
    981 F.3d 1171
    , 1189 (11th Cir. 2020); United States v. Singh, 
    979 F.3d 697
    , 727–28 (9th
    Cir. 2020); United States v. Maez, 
    960 F.3d 949
    , 954–55 (7th Cir. 2020); United States v.
    Bowens, 
    938 F.3d 790
    , 797–98 (6th Cir. 2019).
    23
    scienter should attach to “each of the statutory elements that criminalize otherwise innocent
    conduct.” 
    Id. at 2195
     (quoting United States v. X-Citement Video, Inc., 
    513 U.S. 64
    , 72
    (1994)). Because a defendant’s firearm possession may be “entirely innocent” but for
    falling into one of § 922(g)’s prohibited statuses, the Court merely concluded that there
    was no reason not to apply a scienter requirement to the offense’s status element. Id. at
    2195–97. This reasoning only extends to the elements of § 922(g), which the Supreme
    Court defined as: (1) status, (2) possession, (3) a firearm, and (4) a jurisdictional
    requirement that the gun have entered the stream of interstate commerce. Id. at 2195–96.
    There is no basis in the Court’s reasoning to extend the typical scienter requirement beyond
    these elements to the knowledge that possession of a firearm is prohibited. But there are
    several good reasons to reject such an extension.
    First, such a holding “would improperly elevate the mens rea required for
    conviction . . . from knowledge to willfulness.” United States v. Benton, 
    988 F.3d 1231
    ,
    1238 (10th Cir. 2021). A knowledge requirement “does not necessarily have any reference
    to a culpable state of mind or to knowledge of the law. . . . [U]nless the text of a statute
    dictates a different result, the term ‘knowingly’ merely requires proof of knowledge of the
    facts that constitute the offense.” Bryan v. United States, 
    524 U.S. 184
    , 192–93 (1998).
    Under § 922(g)(1), status is one of the facts of the offense to which a knowledge
    requirement could presumably apply. By contrast, “to establish a ‘willful’ violation of a
    statute, ‘the Government must prove that the defendant acted with knowledge that his
    conduct was unlawful.’” Id. at 191–92 (quoting Ratzlaf v. United States, 
    510 U.S. 135
    ,
    137 (1994)). Drawing on that distinction, we held prior to Rehaif that § 922(g) only
    24
    required the government to prove knowing possession but not the heightened mens rea of
    willfulness. See United States v. Gilbert, 
    430 F.3d 215
    , 218–19 (4th Cir. 2005) (“Congress
    specifically declined to require the showing of willfulness necessary to punish violations
    of certain other subsections of § 922”). Nothing in Rehaif undermined this conclusion, and
    we decline to extend the mens rea beyond our past precedent and that of the Supreme Court.
    Second, as we have previously suggested, Moody’s argument amounts to a mistake-
    of-law defense. Collins, 982 F.3d at 242 n.2. The Supreme Court in Rehaif acknowledged
    that ignorance of or mistake about the legal consequences of one’s actions is not a defense
    to a criminal charge. 
    139 S. Ct. at 2198
    . The Court carefully distinguished a mistake of
    law from a mistake about one’s legal status—which is a collateral question of law that can
    “negat[e] an element of the offense.” 
    Id.
     Moody effectively asks us to ignore this
    distinction. But “[t]he fact that § 922(g)(1) exists and prohibits certain conduct is not
    collateral . . . . It is the prohibition itself. Because § 924(a)(2) does not require willfulness,
    ignorance of the statutory prohibition itself is not a defense.” United States v. Maez, 
    960 F.3d 949
    , 955 (7th Cir. 2020).
    B.
    Finally, Moody challenges the district court’s instruction on aiding-and-abetting
    liability under 
    18 U.S.C. § 2
    , which holds individuals criminally liable for the substantive
    offenses that they aid and abet. To be convicted under an aiding-and-abetting theory of
    liability, a defendant must “(1) take[] an affirmative act in furtherance of [an underlying]
    offense, (2) with the intent of facilitating the offense’s commission.” Rosemond v. United
    25
    States, 
    572 U.S. 65
    , 71 (2014). A defendant must intend to aid the charged crime, and it is
    not enough to intend to further a different or lesser offense. 
    Id. at 76
    . Section 924(c) is a
    “compound” offense, which requires proving both the use or carry of a firearm and an
    underlying drug trafficking offense. 
    Id. at 71
    . Thus, the Supreme Court has held that to
    aid and abet a § 924(c) offense, a defendant who assists a drug trafficking offense needs
    advance knowledge that his or her co-defendant would commit a drug offense with a
    firearm. Id. at 78. Otherwise, that defendant cannot intend to facilitate the entire offense
    of carrying a firearm in furtherance of a drug trafficking offense. Id. Moody argues that
    the district court’s instruction on aiding and abetting was insufficient in this case because
    it failed to instruct the jury that Moody needed advance knowledge of and intent for Carter
    to possess firearms in furtherance of the drug offenses.
    Because we review the district court’s instruction for plain error, we need not decide
    whether the court’s instruction was erroneous. Under plain error review, Moody must also
    demonstrate that any error affects his substantial rights. United States v. Stitt, 
    250 F.3d 878
    , 883–84 (4th Cir. 2001). This requires Moody “to establish . . . actual prejudice” or
    that the instruction actually “resulted in his conviction.” 
    Id. at 884
     (cleaned up). “[A]
    showing of uncertainty as to ‘whether the verdict returned by the jury rested solely on the
    mis-instruction’ does not meet the defendant’s burden of establishing actual prejudice.”
    United States v. Ali, 
    991 F.3d 561
    , 575 (4th Cir. 2021) (quoting United States v. Hastings,
    
    134 F.3d 235
    , 243 (4th Cir. 1998)). Here, there was sufficient evidence for the jury to have
    convicted Moody of Counts Three and Four as a principal. And the verdict form asks only
    whether Moody was guilty or innocent, not which theory the jury relied upon. Therefore,
    26
    Moody cannot establish that the jury relied on aiding-and-abetting to convict him for any
    of his charged offenses. We are constrained to affirm the district court’s instruction, which
    cannot be said to have caused Moody actual prejudice.
    IV.
    For the foregoing reasons, the judgment of the district court is
    AFFIRMED.
    27
    

Document Info

Docket Number: 19-4857

Filed Date: 6/22/2021

Precedential Status: Precedential

Modified Date: 6/23/2021

Authorities (30)

United States v. Henry Tresvant, III , 677 F.2d 1018 ( 1982 )

United States v. Walter Lee Chambers, United States of ... , 985 F.2d 1263 ( 1993 )

United States v. Richard Thomas Stitt, A/K/A Patrick v. ... , 250 F.3d 878 ( 2001 )

United States v. David Mark Armstrong , 187 F.3d 392 ( 1999 )

United States v. Kellam , 568 F.3d 125 ( 2009 )

United States v. Yearwood , 518 F.3d 220 ( 2008 )

United States v. Herbert Randolph Blue , 957 F.2d 106 ( 1992 )

United States v. Rodney Rogers, A/K/A Koseem C. Sanders , 18 F.3d 265 ( 1994 )

United States v. Branch , 537 F.3d 328 ( 2008 )

united-states-v-ronald-bryce-laughman-thomas-e-niehaus-mitchell-dale , 618 F.2d 1067 ( 1980 )

united-states-v-catalino-collazo-united-states-of-america-v-moises , 732 F.2d 1200 ( 1984 )

united-states-v-ervis-lamont-hastings-united-states-of-america-v , 134 F.3d 235 ( 1998 )

United States v. Frank Kahled Burgos, United States of ... , 94 F.3d 849 ( 1996 )

united-states-v-raeford-melano-caudle-united-states-of-america-v-frank , 758 F.2d 994 ( 1985 )

Gregg v. Ham , 678 F.3d 333 ( 2012 )

united-states-v-david-lee-rusher-united-states-of-america-v-sarah-jean , 966 F.2d 868 ( 1992 )

United States v. James Bedford Fisher , 912 F.2d 728 ( 1990 )

United States v. Clarence J. Lomax , 293 F.3d 701 ( 2002 )

United States v. Edmonds , 679 F.3d 169 ( 2012 )

United States v. Chong Lam , 677 F.3d 190 ( 2012 )

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