United States v. Lopez ( 2007 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA,  No. 06-10062
Plaintiff-Appellee,
v.  D.C. No.
CR-04-00375-RLH
CARLOS JAVIER LOPEZ,
OPINION
Defendant-Appellant.

Appeal from the United States District Court
for the District of Nevada
Roger L. Hunt, District Judge, Presiding
Argued and Submitted
December 5, 2006—San Francisco, California
Filed February 27, 2007
Before: Thomas G. Nelson, Ronald M. Gould, and
Consuelo M. Callahan, Circuit Judges.
Opinion by Judge T.G. Nelson
2205
2208 UNITED STATES v. LOPEZ
COUNSEL
Anne R. Traum, Assistant Federal Public Defender, Las
Vegas, Nevada, for the defendant-appellant.
Christina M. Brown, Assistant United States Attorney, Las
Vegas, Nevada, for the plaintiff-appellee.
UNITED STATES v. LOPEZ 2209
OPINION
T.G. NELSON, Circuit Judge:
Carlos Lopez (“Lopez”) appeals his convictions for posses-
sion of cocaine with intent to distribute (21 U.S.C. § 841(a))
and possession of a firearm in furtherance of a drug traffick-
ing offense (18 U.S.C. § 924(c)).
Lopez contends that insufficient evidence supported his
convictions under these counts because no rational jury could
have found each of the essential elements of the crimes
beyond a reasonable doubt. He further contends that the dis-
trict court plainly erred by failing to provide the meaning of
the term “in furtherance” to the jury, and that the district court
abused its discretion when it denied his motion to sever his
drug-related counts from the other charges. Harris v. United
States1 and United States v. Dare2 foreclose Lopez’s final
claim, that the mandatory minimum sentence imposed under
18 U.S.C. § 924(c) violated his Sixth Amendment rights.
We have jurisdiction pursuant to 28 U.S.C. § 1291. We
affirm.
I. BACKGROUND
The Government charged Lopez on five counts. Counts
One and Two charged Lopez with being a felon and an illegal
alien in possession of a firearm. Count Three charged him
with possessing that same firearm in furtherance of a drug
trafficking offense. Count Four charged Lopez with posses-
sion of cocaine with intent to distribute. Count Five charged
him with illegal reentry. Before trial, Lopez moved to sever
the firearm and illegal reentry charges from the drug-related
counts. The district court denied his motion.
1
536 U.S. 545 (2002).
2
425 F.3d 634 (9th Cir. 2005).
2210 UNITED STATES v. LOPEZ
At trial, one of Lopez’s arresting officers testified regarding
the events surrounding Lopez’s arrest. The officer explained
that he had responded to a 911 call placed at approximately
3:30 A.M. on August 11, 2004. The caller stated that he had
observed Lopez brandish a handgun, walk into a nearby apart-
ment complex, re-emerge, and then climb into a maroon
Dodge Stratus. Shortly after responding, the testifying officer
located the car and pulled up alongside it. He saw Lopez, who
was in the passenger seat, lean over as if he were placing
something under his seat. The officer followed the car and
signaled the driver to pull over. The driver turned into a park-
ing lot and stopped.
Lopez jumped out of the car and ran. He refused to stop
despite commands to do so in both English and Spanish. The
testifying officer and a back-up officer eventually cornered
and subdued him. During the struggle, a “purse” fell from
Lopez’s pants pocket. The purse contained $2,840.25 in unor-
ganized cash, including 63 twenty-dollar bills, and several
identification cards. After running the various names on the
identification cards through the police computer system, the
officers learned who Lopez was and that he was a convicted
felon and a previously-deported illegal alien.
When the officers asked Lopez about the large amount of
cash in the purse, he offered various conflicting explanations
including that he dealt in cars, painted houses, and had been
gambling. He also suggested that the money belonged to his
wife. Lopez was unable to provide any corroborating informa-
tion. For example, he failed to provide the name of a casino
where he had been gambling or an address where his wife
lived. Lopez did not introduce any evidence at trial regarding
the source of the money.
When the officers asked Lopez about the gun the eyewit-
ness had observed him brandish, Lopez said in Spanish, “[i]f
you don’t find a gun, you got nothing on me.” The officers
found a gun under the passenger seat of the maroon Dodge
UNITED STATES v. LOPEZ 2211
Stratus. They also found a canister in the center console that
contained 13.15 grams of cocaine. The cocaine was divided
into multiple “shaved” pieces of varying sizes. Lopez admit-
ted that he owned the maroon Dodge Stratus, but denied that
the gun or the drugs found in the car were his.
Officer Christopher Bunn from the Narcotics Bureau in the
Las Vegas Metropolitan Police Department testified at the
trial as an expert witness. He stated that, in his expert opinion,
the drugs recovered from Lopez’s car were for distribution.
He based his opinion on the quantity and packaging of the
cocaine, the area where the incident occurred, the cash
denominations and amount, and the presence of a firearm.
Officer Bunn testified that 13.15 grams amounted to 131 dos-
age units and that single dosage units typically sell for ten
dollars. Officer Bunn further testified that twenty dollars is a
very common purchase level.
With respect to the charge of possession of a firearm in fur-
therance of a drug trafficking offense, the district court
instructed the jury as follows:
The defendant is charged in Count Three of the
indictment with possessing a firearm in furtherance
of a drug trafficking crime in violation of Section
924(c)(1) of Title 18 of the United States Code. In
order for the defendant to be found guilty of that
charge, the Government must prove each of the fol-
lowing elements beyond a reasonable doubt:
First, the defendant committed the crime of drug
trafficking specified in Count Four of the indictment;
Second, the defendant knowingly possessed a fire-
arm; and
Third, the defendant possessed the firearm in fur-
therance of the crime.
2212 UNITED STATES v. LOPEZ
The jury instructions did not separately define the term “in
furtherance” in the third element.
A jury convicted Lopez on all five counts. Lopez appeals,
arguing that: (1) insufficient evidence existed to support con-
viction under Counts Three and Four; (2) the district court
plainly erred by failing to define “in furtherance” in the jury
instruction for Count Three; and (3) the district court abused
its discretion when it denied his motion to sever the drug-
related charges from the others.
II. ANALYSIS
We review claims of insufficient evidence de novo.3 Suffi-
cient evidence supports a conviction if, “after viewing the evi-
dence in the light most favorable to the prosecution, no
rational trier of fact could have found each of the essential
elements of the crime beyond a reasonable doubt.”4
We review a complaint regarding jury instruction for plain
error where a defendant neither proposed nor objected to a
jury instruction.5 Finally, we review the district court’s denial
of a motion to sever for abuse of discretion.6
A. Sufficient evidence supported the jury’s guilty
verdict on the charge of possession of cocaine with
intent to distribute.
[1] In order to convict under 21 U.S.C. § 841(a), the Gov-
3
United States v. Shipsey, 363 F.3d 962, 971 n.8 (9th Cir. 2004) (cita-
tion omitted).
4
United States v. Rios, 449 F.3d 1009, 1011 (9th Cir. 2006) (quoting
Jackson v. Virginia, 443 U.S. 307, 319 (1979)) (internal quotation marks
omitted).
5
United States v. Alferahin, 433 F.3d 1148, 1154 (9th Cir. 2006).
6
United States v. Nguyen, 88 F.3d 812, 815 (9th Cir. 1996) (citation
omitted).
UNITED STATES v. LOPEZ 2213
ernment must prove beyond a reasonable doubt that Lopez
both knowingly possessed cocaine and that he intended to dis-
tribute it.7 We will address each requirement in turn.
i. Knowing Possession
[2] Mere proximity to drugs does not establish knowing pos-
session.8 The Government must show some link between the
defendant and the drugs. Circumstantial proof of “exclusive
dominion or of some special relationship to the cocaine or
persons who directly control it” suffices.9
Several pieces of evidence link Lopez to the drugs and dis-
tinguish his case from those on which he relies. First, Lopez
owned the vehicle in which officers found the cocaine. Sec-
ond, the drugs were within his reach shortly before his arrest.
Third, according to an expert witness, the amount of cash in
Lopez’s possession suggested drug dealing. Lopez’s proxim-
ity to the drugs, when combined with the other evidence in the
case, suggests dominion and control over the drugs. These
facts also distinguish this case from Corral-Gastelum.10 In
that case, no such circumstantial evidence of possession
existed. The only thing that linked the defendant to the drugs
was his proximity to them. The defendant was arrested 30 to
110 yards from duffel bags containing marijuana.11
In addition, in his statement to the officers, Lopez flatly
denied ownership of the drugs and never offered a credible
explanation regarding his proximity to them even though the
cocaine was in his car and within his reach shortly before his
arrest. A jury may “consider as evidence a less than credible
7
United States v. Ocampo, 937 F.2d 485, 488 (9th Cir. 1991).
8
See United States v. Corral-Gastelum, 240 F.3d 1181, 1184 (9th Cir.
2001).
9
Ocampo, 937 F.2d at 489 (citation omitted).
10
240 F.3d 1181 (9th Cir. 2001).
11
Id. at 1183.
2214 UNITED STATES v. LOPEZ
explanation given by the defendant concerning his proximity
to the contraband.”12
[3] Lopez’s ownership of the vehicle where officers found
cocaine, the large amount of unorganized cash in his posses-
sion, his observed proximity to the cocaine, the ease with
which he could access the cocaine, and the absence of any
evidence to suggest that the drugs belonged solely to the
driver of the car or to another person supported an inference
that Lopez possessed the cocaine found in his car.13
Lopez argues that he could have been attempting to avoid
the police because he feared deportation rather than prosecu-
tion for a drug crime. He further argues that the absence of his
fingerprints on the canister in which the officers found the
cocaine could support an inference that the drugs belonged to
someone else. Although the jury could have interpreted the
evidence as Lopez suggests, it did not. The inferences that it
did draw were sufficiently supported by the evidence.
Accordingly, we may not substitute our judgment for that of
the jury.14
ii. Intent to distribute
[4] Where there is “other evidence of a plan or intent to distrib-
12
United States v. Grayson, 597 F.2d 1225, 1229 (9th Cir. 1979) (cita-
tion omitted); see also United States v. Jose Luis L., 978 F.2d 543, 545
(9th Cir. 1992) (finding that defendant’s proximity to a marijuana cache
did not establish possession because the defendant provided a plausible
explanation that his presence in the desert where the drugs were found was
for the sole purpose of attempting to cross the border).
13
Cf. Delgado v. United States, 327 F.2d 641, 642 (9th Cir. 1964) (find-
ing evidence insufficient to establish possession by either of two “common
law” spouses residing in the same home when officers found drugs in a
night stand because evidence did not provide a rational basis for resolving
the doubts as to whether one alone or both had possession).
14
See, e.g., Rios, 449 F.3d at 1011 (stating that court must draw all rea-
sonable inferences in favor of the Government).
UNITED STATES v. LOPEZ 2215
ute,”15 this court has held that possession of as little as four
or five grams may establish an intent to distribute cocaine.16
[5] Lopez possessed far more than four or five grams.
Moreover, other pieces of evidence permitted a reasonable
inference that Lopez obtained the cash in his possession from
drug trafficking. The evidence included: (1) inconsistent and
insufficient explanations regarding the source of the cash; (2)
the disorganized nature of the money; and (3) his possession
of 63 twenty-dollar bills coupled with expert testimony that
twenty dollars was a common purchase level. Furthermore,
Lopez’s ownership of the vehicle in which officers found dis-
tributable quantities of cocaine in divided pieces also sup-
ported an inference that Lopez intended to distribute the
cocaine in his possession. The record supports the jury’s find-
ing that Lopez intended to distribute cocaine.
[6] The Government introduced sufficient evidence from
which a reasonable jury could infer that Lopez both know-
ingly possessed cocaine and intended to distribute it. We
therefore affirm Lopez’s conviction under 21 U.S.C. § 841(a).
B. Sufficient evidence supported the jury’s guilty
verdict on the charge of possession of a firearm in
furtherance of a drug trafficking offense.
Lopez argues that the Government failed to introduce evi-
dence from which a rational jury could determine beyond a
15
United States v. Ramirez, 608 F.2d 1261, 1264 (9th Cir. 1979) (hold-
ing that defendant’s sharing of cocaine with his two companions estab-
lished intent to distribute even absent evidence of commercial
distribution).
16
Id. (citing evidence that a typical dose of cocaine can be as little as
one-fourth of a gram as sufficient for a reasonable jury to conclude that
five grams in defendant’s possession was a distributable amount).
2216 UNITED STATES v. LOPEZ
reasonable doubt that he possessed a firearm “in furtherance”
of a drug trafficking crime.17 His argument fails.
[7] To establish that Lopez possessed the firearm “in fur-
therance” of his drug crime, the Government must show that
Lopez intended to use the firearm to promote or to facilitate
his possession of cocaine with intent to distribute.18 While the
Government need not show actual use of the firearm to
advance the drug crime, mere possession of the gun is not
enough.19 In addition to possession, the Government must
demonstrate a nexus between the gun discovered and the
underlying offense.20 This court has held that a sufficient
nexus exists if the firearm was “readily accessible” during the
commission of the drug crime.21
[8] Because Lopez’s drug crime was possession of cocaine
with intent to distribute, evidence establishing the ready
accessibility of the gun while he was in possession of a distri-
butable amount of cocaine satisfied the “in furtherance”
requirement. The Government satisfied its burden when it
17
In order to convict under 18 U.S.C. § 924(c), the Government must
prove that Lopez: (1) possessed cocaine with intent to distribute; (2) pos-
sessed a firearm; and (3) possessed that firearm “in furtherance” of his
drug crime. Rios, 449 F.3d at 1012. In the previous section, we affirmed
the district court’s finding that Lopez possessed cocaine with intent to dis-
tribute. Thus, we resolved the first prong. Additionally, Lopez does not
argue that the Government presented insufficient evidence to establish that
he possessed a firearm. Thus, the second prong is not at issue.
18
Rios, 449 F.3d at 1012.
19
Id. at 1014 (discovery of sawed-off shotgun at defendant’s residence
where no drugs were found at residence did not establish that defendant
possessed a firearm in furtherance of a drug crime despite expert testi-
mony that drug traffickers often use firearms to further their drug crimes);
see also United States v. Mann, 389 F.3d 869, 880 (9th Cir. 2004) (defen-
dant’s possession of a firearm at a drug trafficking crime scene insufficient
to convict where firearm was in a locked safe inside of a parked truck).
20
Rios, 449 F.3d at 1014.
21
See id. at 1016.
 UNITED STATES v. LOPEZ 2217
presented evidence at trial that both the canister of cocaine
and the firearm were easily within Lopez’s reach at the time
when the officer pulled over Lopez’s car.
[9] We affirm Lopez’s conviction for possession of a fire-
arm in furtherance of a drug trafficking offense.
C. The district court properly instructed the jury on
the meaning of “in furtherance.”
The district court did not err, much less plainly err, by fail-
ing separately to define “in furtherance” in its instruction to
the jury on possession of a firearm in furtherance of a drug
trafficking offense. To the extent any ambiguity in the defini-
tion of “in furtherance” exists, it benefitted Lopez.
[10] Lopez argues that absent a separate definition of “in
furtherance,” the jury could have convicted him upon finding
mere possession of one firearm. His argument fails. The
instruction separately listed the requirements that “the defen-
dant knowingly possessed a firearm” and that “the defendant
possessed the firearm in furtherance of the crime.” Thus the
instruction clearly delineated between mere possession and
possession “in furtherance.” Additionally, “in furtherance is a
phrase of general use that naturally connotes more than mere
possession . . . .”22 The instruction as given eliminated the
possibility that a rational juror would equate mere possession
of a firearm with possession of a firearm “in furtherance” of
a drug crime. We affirm.
22
United States v. Robinson, 435 F.3d 1244, 1250 (10th Cir. 2006)
(internal quotation marks omitted); see also MERRIAM-WEBSTER’S
COLLEGIATE DICTIONARY 509 (11th ed. 2003) (defining “furtherance” as
“the act of furthering; advancement”).
2218 UNITED STATES v. LOPEZ
D. The district court did not abuse its discretion when it
denied Lopez’s motion to sever the drug-related
counts from the other charges.
[11] The district court did not abuse its discretion when it
denied Lopez’s motion to sever certain counts. Joinder was
not “so manifestly prejudicial that it outweigh[ed] the domi-
nant concern with judicial economy and compel[led] the exer-
cise of the court’s discretion to sever.”23 The jury’s knowledge
of Lopez’s status as a felon and a deported alien was not man-
ifestly prejudicial.24 Furthermore, the evidence regarding each
of the charges against Lopez was extensively interrelated, and
thus reasonably consolidated into one trial.
[12] Lopez admits that there was no testimony on the issue
of his status as a felon because he stipulated to that fact. This
prior felony stipulation and the strength of the evidence dis-
tinguish Lopez’s case from Lewis.25 In Lewis, this court
reversed a district court’s denial of the defendant’s motion to
sever. Several factors in Lewis led to the court’s reversal.
First, evidence in support of the defendant’s killing charge
was sparse.26 Second, the district court permitted otherwise
improper testimony and prosecutorial argument regarding the
defendant’s prior felony conviction and the fact that he had
lied under oath.27 None of these factors exist in this case.
Here, the evidence supporting Lopez’s convictions, particu-
larly his convictions related to firearm possession, was strong.
United States v. VonWillie28 provides a more apt compari-
23
United States v. Brashier, 548 F.2d 1315, 1323 (9th Cir. 1976).
24
See United States v. Lewis, 787 F.2d 1318, 1321, as amended by 798
F.2d 1250 (9th Cir. 1986) (defining “manifestly prejudicial” as “of such
magnitude that the defendant’s right to a fair trial was abridged”).
25
787 F.2d at 1323.
26
Id. at 1321.
27
Id. at 1322-23.
28
59 F.3d 922 (9th Cir. 1995).
UNITED STATES v. LOPEZ 2219
son. In VonWillie, a jury convicted the defendant on charges
of being a felon in possession of a firearm and of use of a fire-
arm in relation to a drug trafficking offense.29 As in Lopez’s
case, the prosecution stipulated to the prior felony conviction
and the trial court gave a limiting instruction to the jury.30
This court concluded that the district court did not abuse its
discretion by denying the defendant’s motion to sever.31
[13] No law supports Lopez’s contention that the jury’s
knowledge that he was an illegal alien created “prejudice of
such magnitude that the defendant’s right to a fair trial [was]
abridged.”32 Unlike evidence of a prior felony conviction, rel-
evant evidence that a person is a previously-deported illegal
alien is admissible.33
[14] Furthermore, concerns of judicial economy strongly
supported the denial of the motion to sever in this case. Each
of the alleged offenses arose from the same act or transaction,34
and there was significant overlap in the evidence for all
charges. Counts One, Two, and Three each required the Gov-
ernment to prove that Lopez possessed a firearm. Counts
Three and Four each required the Government to prove that
Lopez possessed cocaine with an intent to distribute. Counts
Two and Five each required the Government to prove that
Lopez was an illegal alien. Thus, separating any charge from
the others would have necessarily resulted in a duplicative
presentation of evidence. The burden on judicial resources
that would have resulted from hearing the charges and evi-
dence against Lopez in multiple trials outweighs any limited
29
Id. at 924.
30
Id. at 930.
31
Id.
32
Lewis, 787 F.2d at 1322.
33
See Fed. R. Evid. 402.
34
See FED. R. CRIM. P. 8(a) (permitting joinder of multiple offenses if
the offenses “are of the same or similar character, or are based on the same
act or transaction . . . .”).
2220 UNITED STATES v. LOPEZ
prejudice that Lopez may have experienced.35 We affirm the
district court’s denial of Lopez’s motion to sever counts.
III. CONCLUSION
Sufficient evidence supported Lopez’s convictions for pos-
session of cocaine with intent to distribute and for possession
of a firearm in furtherance of a drug trafficking offense. Addi-
tionally, the district court’s jury instruction, which did not
separately define “in furtherance,” was proper. Any ambiguity
in the instruction as given benefitted Lopez. Finally, the dis-
trict court did not abuse its discretion when it denied Lopez’s
motion to sever the firearm possession and illegal reentry
charges from the drug-related counts. The charges were
extensively interrelated and reasonably presented in a consoli-
dated trial in the absence of manifest prejudice to Lopez.
AFFIRMED.
35
See Brashier, 548 F.2d at 1323.