United States v. Rashawn Gill , 685 F.3d 606 ( 2012 )

RECOMMENDED FOR FULL-TEXT PUBLICATION
Pursuant to Sixth Circuit Rule 206
File Name: 12a0221p.06
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
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Plaintiff-Appellee, -
UNITED STATES OF AMERICA,
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No. 10-3642
v.
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Defendant-Appellant. -
RASHAWN GILL,
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Appeal from the United States District Court
for the Southern District of Ohio at Cincinnati.
No. 1:08-cr-120-1—Michael R. Barrett, District Judge.
Argued: May 31, 2012
Decided and Filed: July 17, 2012
Before: MARTIN and DAUGHTREY, Circuit Judges; MALONEY, District Judge.*
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COUNSEL
ARGUED: Gregory C. Padgett, COVINGTON & BURLING, LLP, Washington, D.C.,
for Appellant. Christopher K. Barnes, UNITED STATES ATTORNEY’S OFFICE,
Cincinnati, Ohio, for Appellee. ON BRIEF: Gregory C. Padgett, COVINGTON &
BURLING, LLP, Washington, D.C., for Appellant. Christopher K. Barnes, UNITED
STATES ATTORNEY’S OFFICE, Cincinnati, Ohio, for Appellee.
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OPINION
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BOYCE F. MARTIN, JR., Circuit Judge. Rashawn Gill was convicted by a jury
of being a felon in possession of a firearm; possessing cocaine with intent to distribute;
and possessing a firearm in furtherance of a drug-trafficking crime. Before trial, Gill
*
The Honorable Paul L. Maloney, Chief United States District Judge for the Western District of
Michigan, sitting by designation.
1
No. 10-3642 United States v. Gill Page 2
moved to suppress certain evidence. After his conviction, Gill moved for a judgment of
acquittal on the third charge; the district court denied both of these motions. Gill appeals
both denials. For the reasons that follow we AFFIRM the judgments of the district court.
I.
Following his arrest by Cincinnati, Ohio, police, William Holmes agreed to
become a confidential informant and set up a drug deal to help the police arrest the
person who had sold Holmes drugs. In the presence of officers, Holmes telephoned a
man he identified as Rashawn Gill. In that call, Holmes arranged to buy five ounces of
cocaine from Gill at a specific location on Vine Street in Cincinnati. The police did not
record the call, but they heard Holmes’s side of the call and debriefed Holmes after the
call. Holmes told officers that Gill would be driving a green Acura and that Holmes
would meet Gill later that day to complete the drug transaction.
Officers set up surveillance in the area where Holmes said he would meet Gill.
The officers observed Gill arrive in a green Acura, exit the car, and join a group of
people standing in front of a row house on Vine Street. The police approached Gill and
identified themselves as police officers. Gill briefly fled down the block about twenty
feet, dropping a set of keys as he ran. In response to the officers’ commands to stop, Gill
first lay prone on a nearby stoop and then stood up as the officers caught up with him.
He was directed to get on the ground and did so. As Gill was frisked by Special Agent
David Reames of the federal Drug Enforcement Agency, Reames discovered a small
quantity of marijuana in Gill’s waistband. Reames then arrested Gill. The officers also
found a loaded .45 caliber Smith & Wesson handgun under a child safety seat at the
same place on the stoop where Gill had stopped and lain down just a few minutes earlier.
The officers collected the dropped keys and approached the green Acura that Gill had
been driving. After a drug dog on the scene alerted on the car,1 the officers used the
dropped keys to open the car and searched the passenger compartment of the car. In the
center console, they found and seized five ounces of cocaine.
1
Because the drug dog was not shown to be sufficiently certified or trained, the United States
does not contend that the drug dog’s alerting on the car created probable cause for the officers to search
the car.
No. 10-3642 United States v. Gill Page 3
Gill was indicted for: (1) being a felon in possession of a firearm, in violation of
18 U.S.C. §§ 922(g)(1) and 924(a)(2); (2) possessing cocaine with intent to distribute,
in violation of 21 U.S.C. § 841(a)(1) and (b)(1)(c); and (3) possessing a firearm in
furtherance of a drug-trafficking crime, in violation of 18 U.S.C. § 924(c)(1)(A). Gill
moved to suppress certain of the physical evidence seized by the police, contending that
he had been stopped, searched, and arrested unlawfully. The district court held an
evidentiary hearing on the suppression motion and denied the motion.
Gill pleaded not guilty and went to trial before a jury. At the close of the
prosecution’s case, Gill moved for a judgment of acquittal, pursuant to Federal Rule of
Criminal Procedure 29, on Counts One and Three. The district court reserved ruling
until the close of evidence. Gill renewed the motion before the case was submitted to
the jury; the district court again reserved ruling. The jury found Gill guilty of all three
Counts. After the jury convicted Gill, the district court denied Gill’s renewed Rule
29 motion for acquittal. The district court sentenced Gill to two concurrent sentences
of five years and three months’ imprisonment on Counts One and Two, and to a
consecutive sentence of five years’ imprisonment on Count Three. Gill appeals the
denial of his motion to suppress evidence and the denial of his Rule 29 motion for
acquittal as to Count Three.
II.
On appeal from the denial of a motion to suppress, we “review[] the district
court’s findings of fact for clear error and its conclusions of law de novo.” United States
v. Caruthers, 458 F.3d 459, 464 (6th Cir. 2006). We may affirm the district court on any
ground supported by the record, United States v. Galaviz, 645 F.3d 347, 354 (6th Cir.
2011), and we may consider trial evidence in addition to evidence admitted at the
suppression hearing. United States v. Hardin, 539 F.3d 404, 417 (6th Cir. 2008).
“This court reviews de novo a denial of a motion for judgment of acquittal, but
affirms the decision if the evidence, viewed in the light most favorable to the
government, would allow a rational trier of fact to find the defendant guilty beyond a
reasonable doubt.” United States v. Solorio, 337 F.3d 580, 588 (6th Cir. 2003) (internal
quotation marks omitted).
No. 10-3642 United States v. Gill Page 4
III.
On appeal, Gill argues that the stop-and-frisk in which an officer found marijuana
on Gill’s person exceeded the scope of the frisk permissible under Terry v. Ohio,
392 U.S. 1 (1968), and its progeny; the district court erred in ruling that there was
sufficient justification for the search of the Acura incident to arrest; the district court
applied the wrong legal standard and overlooked certain suppression hearing testimony
in denying Gill’s motion to suppress; the evidence adduced at the suppression hearing
was insufficient to support a finding of reasonable suspicion; and the district court erred
in denying his motion for acquittal on Count Three.
A.
The United States contends that the police had probable cause to arrest Gill and
search the Acura prior to, and independent of, their discovery of the marijuana on Gill’s
person and their seizure of the gun near where Gill was stopped. In determining whether
probable cause existed, this Court “consider[s] whether there are facts that, given the
factual and practical considerations of everyday life, could lead a reasonable person to
believe that an illegal act has occurred or is about to occur.” United States v. Strickland,
144 F.3d 412, 416 (6th Cir. 1998). Here, prior to stopping and arresting Gill, the police
arrested Holmes for a drug offense. Holmes stated that Gill had sold Holmes drugs in
the past. The police knew Gill had a prior criminal conviction. In the presence of
officers, Holmes arranged by phone to buy from Gill five ounces of cocaine at a location
on Vine Street. According to Holmes, during this call, Gill told Holmes that Gill would
be driving a green Acura to the Vine Street location. Police waited near the location
where Holmes told the officers the transaction would take place. Gill arrived at the
location, driving a green Acura, and got out of the car. The police identified themselves
to Gill, and Gill fled briefly on foot, during which time officers observed him drop a set
of keys. Gill stopped his flight soon after the police repeatedly commanded him to stop.
The officers then arrested Gill. The drug transaction Gill had arranged with Holmes
never took place.
Strickland is a similar case. That case, as here, “involve[d] a detailed tip from
an informant, whose details were substantially corroborated by subsequent police
observation” but where “the police . . . did not witness any actual illegality.” Id. at 417.
And, as here, in Strickland the informant “told police officers the details of a planned
drug sale, based on a conversation with the suspect to which the officers were not privy.”
Id. Given these facts, we found sufficient probable cause existed to arrest the suspect.
No. 10-3642 United States v. Gill Page 5
In this case, as in Strickland, because there was also a detailed tip from an informant
about a planned drug sale, substantially corroborated by police, probable cause was
sufficiently established.
Gill argues that Strickland is distinguishable because here, unlike in Strickland,
there was no consummated drug sale. This argument misses the point. The law does not
require that an illegal act be completed for sufficient probable cause to develop; it
merely requires the existence of “facts that . . . could lead a reasonable person to believe
that an illegal act has occurred or is about to occur.” Id. at 416. Further, the police in
Strickland, as here, did not observe a drug transaction, yet in Strickland we found that
probable cause existed for all the other reasons described above. Gill also argues that
United States v. Higgins, 557 F.3d 381 (6th Cir. 2009), is more analogous to this case
than is Strickland. In Higgins, this Court held probable cause was lacking where an
informant was unknown to police and where the police did not “corroborate any of the
informant’s statements beyond the innocent fact that Higgins lived at the stated location
and the irrelevant (to the determination of whether Higgins’s house contained evidence
of a present-day crime) fact that Higgins had a criminal record.” Id. at 390. Here, the
police corroborated key elements of Holmes’s tip: the color and make of the car Gill was
driving and the location of the arranged drug sale. The police also heard Holmes’s end
of the phone conversation in which Holmes arranged to meet Gill for a drug deal, and
debriefed Holmes immediately following the call to ascertain what Gill had said. For
these reasons, probable cause to arrest Gill existed at the time of his arrest.
Gill’s arrest took place in 2008. The law in this Circuit at the time of Gill’s
arrest, before the Supreme Court’s decision in Arizona v. Gant, 556 U.S. 332 (2009),2
allowed police to search a vehicle incident to a suspect’s arrest even when the suspect
no longer occupied the vehicle. See, e.g., United States v. White, 871 F.2d 41, 43-44
(6th Cir. 1989); see also United States v. Buford, 632 F.3d 264, 266-67 (6th Cir. 2010)
(discussing a search of a vehicle incident to arrest, finding the search permissible under
Sixth Circuit case law in effect at the time and holding that “the good-faith exception
precludes application of the exclusionary rule when police act in objectively reasonable
reliance upon clear and settled Sixth Circuit precedent that is later overruled by the
United States Supreme Court”). Thus, the search of the Acura incident to Gill’s arrest
was lawful, and the district court did not err in denying Gill’s suppression motion.
Because we conclude that probable cause existed to arrest Gill when he arrived at the
2
Gant overruled, at least in part, prior cases such as United States v. White, 871 F.2d 41 (6th Cir.
1989), discussed above. Gant was not the law at the time of Gill’s arrest and so it is inapplicable here.
No. 10-3642 United States v. Gill Page 6
Vine Street location, we do not reach Gill’s other arguments concerning the Terry stop
and the seized handgun.
B.
Gill argues that we should vacate his convictions or remand the case based upon
the district court’s misuse of the phrases “reasonable suspicion” and “probable cause”
when ruling that the officers had legal justification for stopping Gill. It is not clear from
the district court’s opinion whether the court used the wrong standard. However, our
review of legal issues is de novo, and applying the correct standard, we find that the
officers had probable cause to arrest Gill. Because there was probable cause, we need
not address the defendant’s challenge based on reasonable suspicion.
C.
At trial, Gill was convicted of Count Three, which charged him with possessing
a firearm in furtherance of a drug-trafficking crime, in violation of 18 U.S.C. § 924(c).
Section 924(c) provides for a mandatory five-year term of imprisonment for “any person
. . . who, in furtherance of any [drug-trafficking] crime, possesses a firearm.” Gill
concedes that the jury could have reasonably found he possessed the firearm, which
satisfies the final clause of section 924(c).
To prove the “in furtherance” element of the statute, the United States must prove
“a specific nexus between the gun and the crime charged.” United States v. Ham, 628
F.3d 801, 808 (6th Cir. 2011). He argues that the United States did not prove that there
was a “specific nexus between the gun and the crime charged.” Id.In deciding whether the “in furtherance” element has been proved, we consider
whether the gun was “strategically located so as to be quickly and easily available for
use during [a drug] transaction.” Id. (quoting United States v. Mackey, 265 F.3d 457, 462
(6th Cir. 2001)). “Other factors to consider include: (1) whether the gun was loaded,
(2) the type of weapon, (3) the legality of its possession, (4) the type of drug activity
conducted, and (5) the time and circumstances under which the firearm was found.” Id.
at 808-09.
As to whether the gun was strategically located, there was evidence before the
jury that the gun was found at the point where Gill had lain down on a nearby stoop.
Although the gun was not found near the cocaine underlying Gill’s convictions here, a
rational trier of fact could reasonably infer that Gill carried the gun with him from the
No. 10-3642 United States v. Gill Page 7
car (where the cocaine was found) and placed it under the child safety seat on the stoop.
As to the “other factors,” there was evidence before the jury that the gun was loaded; the
gun was a Smith & Wesson .45 caliber handgun, which is a small weapon that is easily
transported or concealed on the body, making it more likely to be used “in furtherance”
of a drug crime than would be, for example, a rifle; and Gill—who concedes that his
possession of the gun was proved—was, at the time of possession, a convicted felon,
making his possession of the firearm illegal. All of this evidence supports a finding that
the gun was used “in furtherance” of the drug crime charged in Count Two, i.e.,
possession with intent to distribute. As discussed above, there was also evidence that
Gill drove to the location of his arrest for the purpose of conducting a drug sale and that
the contraband in question was found in his car. Finally, the firearm was found at the
location of Gill’s arrest, at the time of his arrest or shortly thereafter, on the stoop near
where he was arrested, in a partially concealed location under a child safety seat. All of
these facts would allow a rational trier of fact to conclude that Gill carried a concealable,
loaded gun with him in furtherance of the intended drug deal.
Gill argues that this case does not present the same level of “nexus” as other
cases in which we have upheld convictions for possession of a gun “in furtherance” of
drug-trafficking. For example, in Mackey, we upheld a conviction where “there was an
illegally possessed, loaded, short-barreled shotgun in the living room of [a] crack house,
easily accessible to the defendant and located near the scales and razor blades.
Defendant, stopped by police near the gun, possessed cocaine and a large sum of cash.”
265 F.3d at 462. Here, while Gill was not arrested in a house, there was evidence
indicating that he unlawfully possessed a loaded handgun; the gun was easily accessible
to him; and he had transported cocaine to the scene of his arrest for the purpose of a drug
transaction. While no scales and razor blades or other classic indicia of drug dealing
were present, the amount of cocaine recovered from the Acura matched exactly the
amount ordered by Holmes; this fact supports the inference that the drugs found in the
car were the drugs Gill sought to sell to Holmes. In Ham, 628 F.3d at 803, we upheld
a section 924(c) conviction where officers found a stolen but unloaded .38 caliber gun
and thirty-seven grams of crack cocaine in a closet where the suspect was hiding, though
they found a loaded 9mm handgun on an armoire in the house. Here, Gill, a convicted
felon, was found by the jury to possess a loaded handgun. While he was not arrested in
the car where the cocaine was found, he had driven the car to the scene and had just
exited the car. In United States v. Street, 614 F.3d 228, 230-31 (6th Cir. 2010), a section
924(c) conviction was upheld where the defendant possessed a revolver, three balloons
No. 10-3642 United States v. Gill Page 8
of methamphetamine, and digital scales. Here, Gill obviously had no digital scales with
him, but police had received information from Holmes that Gill intended to sell Holmes
five ounces of cocaine, and the police recovered that same amount of cocaine from the
Acura. As our comparisons to Mackey, Ham, and Street illustrate, the evidence here is
sufficient to sustain a section 924(c) conviction.
In sum, there was evidence before the jury to support every factor relevant to the
nexus inquiry that could have led a reasonable trier of fact to conclude that the “in
furtherance” element was satisfied. For these reasons, Gill’s argument fails on his
appeal of the denial of his Rule 29 motion for acquittal.
IV.
We AFFIRM the judgment of the district court as to the motion to suppress, and
we AFFIRM the denial of the motion for acquittal as to Count Three.