USA V. RHETT IRONS, No. 20-30056 (9th Cir. 2022)
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After Defendant sold fentanyl to an undercover officer, federal agents executed a search warrant at his home, leading to the discovery of fentanyl, oxycodone and a loaded firearm. Defendant was indicted on conspiracy to distribute a substance containing fentanyl, possession with intent to deliver fentanyl, and possession of a firearm in furtherance of drug trafficking.
At trial, Defendant contested only the conspiracy and firearms charges. As to the firearm offense, Defendant presented a witness who testified that he sold the gun to Defendant. The witness claimed that he was moving out of the state and did not have any place to store the gun. The witness also testified that the gun had nothing to do with any drug transaction. Defendant was convicted on all charges and sentenced to 120 months incarceration on the drug offenses and 60 months on the firearm offense.
Defendant appealed, challenging the district court's supplemental instruction to the jury that allowed the jury to convict him by finding that the drug had a connection to the drug trafficking charges. The Ninth Circuit agreed, reversing Defendant's firearm conviction. Applying a plain error standard, the panel determined that the district court erred in instructing the jury "in furtherance of" meant that “there must be a connection between the firearm and the drug trafficking offense. The district court's definition failed to explain to the jury that it needed to find the firearm somehow facilitated the drug trafficking offenses to convict Defendant.
Court Description: Criminal Law. The panel affirmed the defendant’s convictions, after a jury trial, on charges of conspiracy to distribute fentanyl (21 U.S.C. § 846) and possession of fentanyl with intent to distribute (21 U.S.C. §§ 841(a)(1), 841(b)(1)(B)(vi)); reversed his conviction on a charge of possession of a firearm in furtherance of that drug trafficking (18 U.S.C. § 924(c)); and remanded for a new trial on the § 924(c) charge. The defendant contended that the district court's instructions failed adequately to explain the elements of the § 924(c) offense. His chief complaint was that, while the statute required the jury to find that he possessed a firearm “in furtherance of” a drug trafficking crime, the court gave a supplemental instruction, in response to a jury note, that allowed the jury to convict merely by finding that defendant’s possession of the gun had a “connection” to the trafficking. The panel held that the defendant failed to adequately preserve this objection and that, as a result, the panel’s review is only for plain error. In so holding, the panel construed Fed. R. Crim. P. 30(d)’s requirement that an objection be made “before the jury retires to deliberate” as applicable to a situation in which the court or a party proposes to give a supplemental jury instruction in response to a note from a jury that is already deliberating. The panel UNITED STATES V. IRONS 3 wrote that the fact that the defendant had previously proposed instructions that happened to bear on the point raised in the jury’s note is not sufficient to preserve the position that those instructions should then be given in response to the jury’s note. Reviewing for plain error, the panel held: 1. The district court erred by instructing the jury that the “in furtherance of” requirement in 18 U.S.C. § 924(c)(1)(A) means that “there must be a connection between the firearm” and the alleged drug trafficking offense, thereby improperly permitting the jury to convict without finding that the defendant possessed the firearm with the intent that it further or advance a determination crime. 2. The error is plain. Noting that the district court relied on an unpublished decision of this court that directly supported its position, the panel explained that Henderson v. United States, 568 U.S. 266 (2013), requires this court to assess whether this court’s analysis reveals the question at issue to have a “plain” answer with the benefit of hindsight. With the advantage of that hindsight, the panel concluded that its textual analysis is sufficiently one-sided, and sufficiently dictates the answer, that the district court’s error is “plain.” 3. The defendant carried his burden to show that the error affected his substantial rights because the error in the instruction effectively removed from the jury’s consideration the only disputed issue concerning the § 924(c) charge—the defendant’s intent in having the gun under his mattress while living in his home. 4 UNITED STATES V. IRONS 4. Reversal is warranted because the evidence is not so overwhelming that reversal would impugn the integrity or fairness of the proceedings. As to the defendant’s other arguments concerning his § 924(c) conviction, the panel concluded that a reasonable jury could find beyond a reasonable doubt that the defendant possessed the firearms in furtherance of his drug trafficking; and that on remand the district court must make the requisite reliability findings before admitting any expert testimony concerning general practices of drug traffickers. As to the predicate drug trafficking convictions, the panel rejected the defendant’s arguments (1) that the district court erred in instructing the jury that, in determining the amount of drugs involved in the conspiracy charge and the possession-with-intent-to-distribute charge, the “government does not have to prove that the defendant knew the quantity of the controlled substance”; and (2) that the district court plainly erred by instructing the jury that “a defendant who is a member of a conspiracy to distribute controlled substances, including fentanyl, is responsible for . . . the amount of fentanyl distributed or intended to be distributed by coconspirators, if the defendant could reasonably foresee that amount to be a necessary or natural consequence of the unlawful agreement.” Dissenting in part, Judge Watford would affirm the defendant’s § 924(c) conviction because, in his view, the defendant cannot show that the instructional error affected his substantial rights, given that the government’s evidence as to the “in furtherance of” element was quite strong, and the defendant did not show a reasonable probability that, but for the error, the jury would have reached a different result. UNITED STATES V. IRONS 5
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