United States v. Gonzalez ( 2008 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA,  No. 07-10326
Plaintiff-Appellee,
v.  D.C. No.
CR-06-00152-JMR
MICHAEL CARLOS GONZALEZ,
OPINION
Defendant-Appellant.

Appeal from the United States District Court
for the District of Arizona
John M. Roll, District Judge, Presiding
Argued and Submitted
May 13, 2008—San Francisco, California
Filed June 19, 2008
Before: Betty B. Fletcher and Pamela Ann Rymer,
Circuit Judges, and Kevin Thomas Duffy,* District Judge.
Opinion by Judge B. Fletcher
*The Honorable Kevin Thomas Duffy, Senior United States District
Judge for the Southern District of New York, sitting by designation.
7079
UNITED STATES v. GONZALEZ 7081
COUNSEL
T.S. Hartzell, Attorney at Law, Tucson, Arizona, for the
defendant-appellant.
7082 UNITED STATES v. GONZALEZ
Bradley W. Giles, Assistant United States Attorney, Tucson,
Arizona, for the plaintiff-appellee.
OPINION
B. FLETCHER, Circuit Judge:
Michael Gonzalez, a Border Patrol agent, appeals his jury
conviction for possession with intent to distribute less than 50
kilograms of marijuana, in violation of 21 U.S.C. §§ 841(a)(1)
and (b)(1)(D), and for use of a firearm in furtherance of that
drug trafficking offense in violation of 18 U.S.C.
§ 924(c)(1)(A)(I). Gonzalez, in uniform and carrying his
service-issued sidearm, was caught on videotape stealing a
distribution quantity of marijuana, while purporting to assist
an Arizona Department of Public Safety (“DPS”) officer with
a traffic stop. A jury found that the weight of the stolen mari-
juana was 10 kilograms. Gonzalez challenges the district
court’s denial of judgment of acquittal on both counts and its
denial of a motion to dismiss the firearm charge for lack of
jurisdiction and failure to state an offense. He further chal-
lenges the district court’s adoption of the jury’s finding
regarding the weight of the stolen marijuana. We have juris-
diction pursuant to 28 U.S.C. § 1291. We affirm.
I. Factual background and procedural posture
Arizona DPS Officer Duckett stopped a pickup truck on a
state highway in a remote desert area frequently used as a nar-
cotics trafficking corridor. The driver and a passenger fled
after the stop, abandoning the vehicle and its contents. Con-
cealed within the bed of the truck were thirty bales of mari-
juana. When Officer Duckett activated his emergency lights,
the dashboard-mounted video camera in his patrol car auto-
matically initiated recording. Soon after Officer Duckett
stopped the vehicle, three Border Patrol agents, dressed in
UNITED STATES v. GONZALEZ 7083
civilian clothing and driving a personal vehicle, also stopped,
identified themselves by showing their badges and guns, and
offered assistance in the chase after the truck’s occupants.
Two agents pursued the occupants immediately. Officer
Duckett then joined the chase with his service canine, leaving
the third Border Patrol agent, Agent Rogers, behind to protect
the vehicle and marijuana after performing a visual check to
verify Rogers’ credentials and his possession of a firearm.
Gonzalez then arrived in uniform driving a marked Border
Patrol vehicle and carrying his service-issued Baretta .40 cali-
ber sidearm on his hip. After Gonzalez and Rogers conferred
and inspected the vehicle together, Gonzalez told Rogers that
he thought he heard a gun shot. Rogers left the area to investi-
gate, entrusting Gonzalez to guard the vehicle and the mari-
juana.
The videotape shows that during the short period Gonzalez
was left alone with the vehicle, he removed one bale of mari-
juana from the bed of the pickup truck, rearranged the other
bales to fill in the space left by the removed bale, and placed
it in the trunk of his service vehicle. Agent Rogers returned,
having found no evidence of shots fired. Shortly after taking
the marijuana, Gonzalez made several cell phone calls to a
relative who had been convicted for marijuana distribution in
1992. Of the thirty bales, the twenty-nine remaining in the
truck were later weighed and found to weigh a total of about
304 kilograms, with an average weight per bale of 10.5 kilo-
grams.
Gonzalez’s theft of the marijuana was discovered thirteen
days later during a routine review of video footage. An agent
from the Department of Homeland Security Office of Inspec-
tor General (“OIG”) was called in to investigate. The OIG
agent questioned Gonzalez, confronting him with the video-
tape. On the day he was questioned by the OIG agent, Gonza-
lez resigned from the Border Patrol and surrendered his badge
and weapon.
7084 UNITED STATES v. GONZALEZ
At his four-day trial, Gonzalez testified that he was not act-
ing in his lawful capacity as a law enforcement officer when
he took the marijuana bale and that based on his experience,
he knew it was marijuana. He also testified that he did not
know he was being videotaped. He did not object to the prose-
cutor’s assertion that the bale weighed a little more than 10
kilograms. Photographs of several scenes from the videotape
were admitted into evidence. They showed Gonzalez, with his
face clearly visible, removing a bale, placing it into his ser-
vice vehicle, and rearranging the remaining bales. Gonzalez
filed a motion for judgment of acquittal at the close of the
government’s case.
The jury convicted Gonzalez of possession with intent to
distribute less than 50 kilograms of marijuana (resulting in a
30-month sentence), and use of a firearm in furtherance of
that drug trafficking offense (resulting in a consecutive 60-
month mandatory-minimum sentence). Responding to an
interrogatory, it also found beyond a reasonable doubt that the
weight of the marijuana was 10 kilograms. After the jury ver-
dict, Gonzalez filed a motion for judgment of acquittal, and
a motion to dismiss the firearm charge for lack of jurisdiction,
both of which were denied. Gonzalez was sentenced consecu-
tively for a total term of 90 months, a 36-month term of
supervised release and a fine of $30,000. He timely appealed
from the sentence and conviction. Gonzalez filed a written
motion within seven days of the date of the verdict renewing
his earlier motion for judgment of acquittal after the close of
the government’s case.
II. Motions for judgment of acquittal.
A) Post-verdict motion to renew a judgment for
acquittal.
In order to preserve the sufficiency of the evidence issue on
appeal, the defendant must move for a judgment of acquittal
during the trial pursuant to Fed. R. Crim. P. 29(a). Gonzalez
UNITED STATES v. GONZALEZ 7085
filed a motion for judgment of acquittal at the close of the
government’s case but did not move for a judgment of acquit-
tal at the close of all of the evidence. The government argues
that for this reason, we may review his sufficiency of the evi-
dence claim only to prevent a manifest miscarriage of justice
or for plain error. See United States v. Ross, 338 F.3d 1054,
1057 (9th Cir. 2003), cert. denied, 540 U.S. 1168 (2004).
However, we have traditionally imposed this higher standard
of review only in cases where a motion for judgment of
acquittal is never renewed. United States v. Alvarez-
Valenzuela, 231 F.3d 1198, 1200-1201 (9th Cir. 2000). Here,
Gonzalez did renew his earlier motion for judgment of acquit-
tal by filing a written motion within seven days of the date of
the verdict.
[1] We have not squarely addressed whether, as here, a
timely post-trial motion for a judgment of acquittal, pursuant
to Fed. R. Crim. P. 29(c)(1) preserves a sufficiency claim for
appellate review.1 The First and Fifth Circuits have addressed
the issue and held that a Rule 29(c) motion does preserve a
sufficiency claim. See United States v. Castro-Lara, 970 F.2d
976, 980 (1st Cir. 1992) (movant under Rule 29(c) is “entitled
to the benefit of the same standard of appellate review” as
movant under Rule 29(a)); United States v. Allison, 616 F.2d
779, 784 (5th Cir. 1980) (per curiam) (“Under Rule 29(c) of
the Federal Rules of Criminal Procedure, [the defendant] has
preserved her right of appellate review.”), cert. denied, 449
U.S. 857 (1980); see also United States v. Teague, 956 F.2d
1427, 1433 (7th Cir. 1992) (defendant waives sufficiency
claim by “fail[ing] to renew his motion for acquittal at the
1
In relevant part, the rule provides that “(1) A defendant may move for
a judgment of acquittal, or renew such a motion, within 7 days after a
guilty verdict . . . (2) If the jury has returned a guilty verdict, the court may
set aside the verdict and enter an acquittal . . . (3) A defendant is not
required to move for a judgment of acquittal before the court submits the
case to the jury as a prerequisite for making such a motion after jury dis-
charge.” Fed. R. Crim. P. 29(c).
7086 UNITED STATES v. GONZALEZ
close of trial or within seven days after the verdict pursuant
to Federal Rule of Criminal Procedure 29(c).”).
[2] We now join our sister circuits in holding that a timely
post-verdict motion under Rule 29(c)(1), renewing an earlier
motion for judgment of acquittal after the close of the govern-
ment’s case at trial, constitutes a sufficient “renewal” of the
motion to preserve the issue for de novo appellate review. The
rule specifically provides that a defendant may renew a
motion for acquittal “within 7 days after a guilty verdict” and
“is not required to move for a judgment of acquittal before the
court submits the case to the jury as a prerequisite for making
such a motion after jury discharge.” Fed. R. Crim. P. 29(c).
We read this provision to state that even absent any motion
for judgment of acquittal at trial, a defendant who files a
timely post-trial motion for acquittal stands on the same
footing—and is entitled to the benefit of the same standard of
appellate review—as a defendant who moves for acquittal at
the close of all the evidence. See Castro-Lara, 970 F.2d at
976; Allison, 616 F.2d at 784; see also 2A Charles A. Wright,
Federal Practice and Procedure § 465 (2008).
[3] Because Gonzalez’s post-trial motion for acquittal was
timely—it was filed within seven days of the date of the
verdict—there was no waiver; he is entitled to review for suf-
ficiency of evidence. There is sufficient evidence to support
a conviction if, viewing the evidence in the light most favor-
able to the prosecution, any rational trier of fact could have
found the essential elements of the crime beyond a reasonable
doubt. See Jackson v. Virginia, 443 U.S. 307, 319 (1979).
When a claim of sufficiency of the evidence is preserved by
making a motion for acquittal at the close of the evidence, this
court reviews the district court’s denial of the motion de novo.
See United States v. Stewart, 420 F.3d 1007, 1014 (9th Cir.
2005). We now apply this standard to review the district
court’s denial of judgment of acquittal on both counts.
UNITED STATES v. GONZALEZ 7087
B) Motions for judgment of acquittal on the 18 U.S.C.
§ 924(c) charge.
[4] The government may prove a § 924(c) offense by either
proving that the defendant carried or used a firearm “in rela-
tion to” a drug trafficking crime, or that the defendant pos-
sessed a firearm “in furtherance” of that crime.2 Here, the
government showed that Gonzalez’s possession of the firearm
during the drug trafficking offense was “in furtherance” of the
offense.3 Whether the “in furtherance” requirement is met is
a “fact-based inquiry into the nexus between possession of the
firearm and the drug crime[,]” including such factors as
“proximity, accessibility and strategic location of the firearms
in relation to the locus of drug activities.” United States v.
Hector, 474 F.3d 1150, 1156-57 (9th Cir. 2007) (internal cita-
tion omitted).
The central question before us is whether the gun that Gon-
zalez possessed for legitimate purposes was sufficiently used
in furtherance of the drug trafficking offense to invoke
2
The statute provides that a person “who, during and in relation to any
crime of violence or drug trafficking crime . . . for which the person may
be prosecuted in a court of the United States, uses or carries a firearm, or
who, in furtherance of any such crime, possesses a firearm, shall, in addi-
tion to the punishment provided for such crime of violence or drug traf-
ficking crime (i) be sentenced to a term of imprisonment of not less than
5 years . . . .” 18 U.S.C. § 924(c).
3
In Bailey v. United States, 516 U.S. 137 (1995), the Supreme Court
held that punishment under 18 U.S.C. § 924(c), which at the time per-
tained to those who used or carried a firearm, required “evidence sufficient
to show an active employment of the firearm.” Id. at 143 (emphasis in
original). The relevant portion of 18 U.S.C. § 924(c) has been amended—
in direct response to Bailey—to include mere possession in furtherance of
a drug trafficking crime. See, e.g. United States v. Grace, 367 F.3d 29, 34-
35 (1st Cir. 2004) (explaining that “[i]n 1998, Congress amended 18
U.S.C. § 924(c)(1)(A) to preserve a mandatory minimum consecutive sen-
tence” without requiring “defendants to have actively employed the fire-
arm in furtherance of the drug crime; however, they must have possessed
the gun to further the drug crime . . . .”).
7088 UNITED STATES v. GONZALEZ
§ 924(c) or whether, as Gonzalez claims, it was simply an
accoutrement of his uniform that played no part in his theft of
the marijuana. As the district court noted, other circuit courts
have sustained § 924(c) convictions against on-duty officers
who possessed service-issued weapons during the commission
of a predicate felony offense. See e.g., United States v. Patter-
son, 348 F.3d 218 (7th Cir. 2003); United States v. Vasquez-
Guadalupe, 407 F.3d 492 (1st Cir. 2005); United States v.
Villafane-Jiminez, 410 F.3d 74 (1st. Cir. 2005); United States
v. Guidry, 456 F.3d 493 (5th Cir. 2006)). We, too, are satis-
fied that a sufficient nexus exists between Gonzalez’s posses-
sion of the firearm and the commission of the predicate felony
drug-trafficking offense to sustain his § 924(c) conviction.
[5] Congress intended § 924(c) to apply when police offi-
cers, or in this case, Border Patrol agents abuse the privilege
of carrying a firearm by committing a crime with the weapon.
See United States v. Contreras, 950 F.2d 232, 241 (5th Cir.
1991) (citing S.Rep. No. 225, 98th Cong., 2d Sess. 315 n.10
(1983), reprinted in 1984 U.S.C.C.A.N. 3182, 3492 n.10).
However, courts have recognized that § 924(c) is not automat-
ically violated any time a uniformed law enforcement officer
commits a drug trafficking crime. See, e.g. Vasquez-
Guadalupe, 407 F.3d at 500 n.4 (1st Cir. 2005) (quoting
Castro-Lara, 970 F.2d at 983). There must be more to trigger
a violation of § 924(c). “The phrase ‘in relation to’ . . . clari-
fies that the firearm must have some purpose or effect with
respect to the drug trafficking crime; its presence or involve-
ment cannot be the result of accident or coincidence . . . .
[T]he gun at least must facilitate, or have the potential of
facilitating, the drug trafficking offense.” Smith v. United
States, 508 U.S. 223, 238 (1993) (internal quotations omit-
ted). A gun possessed for legitimate purposes will nonetheless
invoke § 924(c) if, for example, a defendant intends to have
it available as a device to lend courage during a drug-
trafficking offense. Vasquez-Guadalupe, 407 F.3d at 500 n.4.
Under Gonzalez’s view, the evidence was insufficient to
prove that his possession of a firearm was for the purpose of
UNITED STATES v. GONZALEZ 7089
facilitating his theft of the marijuana. To support this conten-
tion, he testified that Officer Rogers knew him, that they saw
each other regularly and that for this reason alone, Rogers
would have trusted him to watch the truck. Thus, he submits
that the government failed to demonstrate that his possession
of a firearm was more than a mere coincidence. We disagree.
[6] The government presented sufficient evidence for a
rational jury to find that Gonzalez possessed a firearm in rela-
tion to his theft of the marijuana. Agent Rogers testified that
he never would have left Gonzalez alone with the marijuana
had he been unarmed, because doing so would have put Gon-
zalez in danger. Agent Rogers testified that he had safety con-
cerns when leaving Gonzalez alone with the vehicle because
the occupants could have come back for the marijuana or
another vehicle could have ambushed him. He further testified
he would not leave an unarmed officer alone to protect a load
of marijuana and that the fact that Gonzalez had a gun was
“crucial” to his decision to leave Gonzalez there alone.
[7] Gonzalez himself admitted that he thought drug traf-
ficking was a dangerous activity and that having a service
weapon protected him. Gonzalez’s own testimony tends to
show that the weapon emboldened him and allowed him to
take control of the marijuana load, lent him an air of legiti-
macy, and reduced the chance that he would be interrupted.
Thus, sufficient evidence in the record supports Gonzalez’s
jury conviction for possession of a firearm “in furtherance” of
a drug trafficking offense. Accordingly, we conclude that the
district court did not err in denying Gonzalez’s motions for
judgment of acquittal on the § 924(c) count.
C) Motions for judgment of acquittal on the 21 U.S.C.
§ 841 charge.
[8] Gonzalez maintains that the government failed to prove
intent to distribute and that it presented insufficient evidence
to prove that he possessed marijuana at all. To support a con-
7090 UNITED STATES v. GONZALEZ
viction under 21 U.S.C. § 841(a),4 the government must prove
that Gonzalez knowingly possessed marijuana with intent to
distribute. See United States v. Magallon-Jimenez, 219 F.3d
1109, 1112 (9th Cir. 2000). Like the knowledge requirement,
the intent to distribute may be inferred. United States v.
Davila-Escovedo, 36 F.3d 840, 843 (9th Cir. 1994).
[9] Gonzalez possessed the marijuana: he admitted taking
the bale both to the OIG agent and at trial. The admission was
corroborated by the videotape and by the fact that the twenty-
nine recovered bales tested positive for marijuana. Further,
expert testimony established that the quantity of marijuana
stolen, approximately 10 kilograms, was a distribution
amount as opposed to a typically smaller personal-use
amount. Evidence showed that Gonzalez made several cell
phone calls to his relative, a convicted marijuana distributor.
The jury heard Gonzalez’s assurances that he intended to
report the seizure to Border Patrol and file the appropriate
paperwork, but that he never did. In addition, the jury heard
Gonzalez testify that he dumped the bale roadside and
planned to retrieve it, but that the he never did, and that the
bale was never retrieved. Viewing the evidence in the light
most favorable to the government, we conclude sufficient evi-
dence supports Gonzalez’ jury conviction for possession with
intent to distribute less than 50 kilograms of marijuana.
Accordingly, the district court did not err in denying Gonza-
lez’s motions for judgment of acquittal on the § 841 count.
III. Motion to dismiss the 18 U.S.C. § 924(c) charge for
lack of jurisdiction and failure to state an offense.
We review jurisdictional issues de novo. United States v.
4
The statute provides “[I]t shall be unlawful for any person knowingly
or intentionally (1) to manufacture, distribute, or dispense, or possess with
intent to manufacture, distribute, or dispense, a controlled substance; or
(2) to create, distribute, or dispense, or possess with intent to distribute or
dispense, a counterfeit substance.” 21 U.S.C. § 841(a).
UNITED STATES v. GONZALEZ 7091
Phillips, 367 F.3d 846, 854 (9th Cir. 2004). 18 U.S.C.
§ 925(a)(1),5 a statutory section entitled “Relief from disabili-
ties,” exempts firearms issued for the use of a United States
department or agency from the prohibitions of Chapter 44 of
the U.S. Code. Gonzalez argues that because his weapon was
issued to and for the Border Patrol, any use of that weapon
whatsoever is categorically exempted from possible prosecu-
tion under § 924(c). His reliance on § 925(a)(1) is misplaced;
it is simply inapplicable to his case.
[10] Under 18 U.S.C. § 922, certain individuals are prohib-
ited or “disabled” from possessing firearms. Section 925(a)(1)
allows some individuals—armed forces members and law
enforcement—relief from that prohibition and allows them to
carry firearms in connection with their public responsibilities
despite the prohibitions of § 922. See, e.g. United States v.
Lewitze, 176 F.3d 1022, 1027 n.4. (7th Cir. 1999). This provi-
sion has no application to an individual like Gonzalez, who
was never prohibited in the first instance from possessing fire-
arms under § 922. Thus, § 925(a)(1) has no effect on the gov-
ernment’s ability to prosecute Gonzalez for a § 924(c)
offense. See also United States v. Cruz, 50 F.3d 714, 716 (9th
Cir. 1995) (“While § 925(a)(1) excepts use of a firearm for a
government purpose . . . it does not permanently exempt those
firearms from the federal gun laws.”) The district court did
not err in denying Gonzalez’s motion to dismiss the firearm
charge.
5
The statute provides that “[t]he provisions of this chapter . . . shall not
apply with respect to the transportation, shipment, receipt, possession, or
importation of any firearm or ammunition imported for, sold or shipped
to, or issued for the use of, the United States or any department or agency
thereof or any State or any department, agency, or political subdivision
thereof.” 18 U.S.C. § 925(a)(1).
7092 UNITED STATES v. GONZALEZ
IV. The district court’s adoption of the jury’s finding
regarding the weight of the stolen marijuana.
We review factual findings made during sentencing, includ-
ing a determination of the quantity of drugs involved in an
offense, for clear error. United States v. Asagba, 77 F.3d 324,
325 (9th Cir. 1996). The district court at sentencing must find
drug quantities by a preponderance of the evidence through
sufficiently reliable information. United States v. Kilby, 443
F.3d 1135, 1140-41 (9th Cir. 2006). The district court must
err on the side of caution when approximating drug quantities.
Id.Gonzalez argues that a finding of a smaller weight would
result in a lower base offense level thereby requiring the court
to err on the side of caution to find that the stolen bale
weighed no more than the lightest bale, which weighed only
8.4 kilograms according to the government’s testimony. In
further challenging the weight, Gonzalez also highlights
expert testimony suggesting that wrappers can be heavy and
sometimes include grease or coffee.
The record reflects that of the thirty bales, the twenty-nine
remaining in the truck weighed about 304 kilograms together
and had an average weight of 10.5 kilograms, which is a “dis-
tribution weight” of marijuana. Gonzalez is correct to suggest
that the actual weight of the stolen bale could have been
below or above average weight of all the seized bales.
However, the jury found, beyond a reasonable doubt when
answering the interrogatory, that the bale was roughly ten
kilograms in weight after deducting an assumed wrapper
weight of 500 grams. Officer Duckett testified that the aver-
age weight of the other roughly consistently sized bales was
10.5 kilograms. The jury saw the video showing Gonzalez
stealing the bale, photographs of the similarly sized bales with
weights of more than ten kilograms written on them by the
smugglers, and the government form that tracked the weights
UNITED STATES v. GONZALEZ 7093
of the seized bales. Further, Gonzalez testified upon cross-
examination that although he estimated the load to be lighter,
he had no reason to contest the jury’s finding as to the weight.
[11] The district court found drug quantities by a prepon-
derance of the evidence aided by the jury’s answer to the
interrogatory. Accordingly, we conclude that the district court
did not clearly err in accepting the jury’s conclusion that the
bale Gonzalez took weighed ten kilograms. See Kilby, 443
F.3d at 1140-41.
AFFIRMED.