UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 05-4607
UNITED STATES OF AMERICA,
Plaintiff - Appellant,
versus
LARRY ANTHONY CLYBURN, a/k/a Shoan Clyburn,
Defendant - Appellee.
No. 05-4631
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
LARRY ANTHONY CLYBURN, a/k/a Shoan Clyburn,
Defendant - Appellant.
Appeals from the United States District Court for the Western
District of Virginia, at Abingdon. James P. Jones, Chief District
Judge. (CR-04-50)
Argued: March 17, 2006 Decided: May 17, 2006
Before GREGORY and DUNCAN, Circuit Judges, and HAMILTON, Senior
Circuit Judge.
Reversed and remanded in part; affirmed in part by unpublished
opinion. Judge Duncan wrote the opinion, in which Senior Judge
Hamilton joined. Judge Gregory wrote a separate concurring
opinion.
ARGUED: John L. Brownlee, United States Attorney, Roanoke,
Virginia, for Appellant/Cross-Appellee. Michael Allen Bragg,
Abingdon, Virginia for Appellee/Cross-Appellant. ON BRIEF: Jean B.
Hudson, Assistant United States Attorney, OFFICE OF THE UNITED
STATES ATTORNEY, Charlottesville, Virginia, for Appellant/Cross-
Appellee.
Unpublished opinions are not binding precedent in this circuit.
See Local Rule 36(c).
2
DUNCAN, Circuit Judge:
The government appeals from the district court's grant of
Larry Clyburn's Motion for Judgment of Acquittal on Count Six of a
seven-count indictment: possessing a firearm in furtherance of a
drug trafficking crime in violation of 18 U.S.C. § 924(c)(1).
Clyburn cross-appeals from the district court's denial of his
Motion for Judgment of Acquittal on Count One of the indictment:
conspiracy to manufacture fifty grams or more of a mixture or
substance containing a detectable amount of methamphetamine in
violation of 21 U.S.C. § 841(a)(1). Because, based on the evidence
adduced at trial, a rational trier of fact could find the essential
elements of both crimes beyond a reasonable doubt, we reverse the
grant of judgment of acquittal as to Count Six of the indictment
and affirm the denial of judgment of acquittal as to Count One of
the indictment.
I.
On August 11, 2003, law enforcement officers executed a search
warrant on Clyburn's residence. In addition to baggies containing
methamphetamine, the officers found multiple items associated with
the manufacture of methamphetamine, including Sudafed tablets,
plastic tubing, coffee filters with red residue, flasks and a Pyrex
dish. The greatest concentration of these items was found in the
master bedroom.
3
The officers also found a Mossberg 20-gauge shotgun behind the
door of the master bedroom. The shotgun was loaded with six shells
containing "seven and a half shot."1
The officers arrested Clyburn, who agreed to talk to DEA
special agent Brian Snedeker. Clyburn stated that he had learned
to manufacture methamphetamine from an individual named George
Harper. Clyburn also stated that he had manufactured
methamphetamine, employing the so-called "red phosphorous" method,
every one to two weeks for six months, using 200 thirty milligram
tablets, or six grams, of pseudoephedrine on each occasion.
According to Snedeker's testimony at trial, the red phosphorous
method yields 0.59 to 0.78 grams of methamphetamine from every gram
of pseudoephedrine.
On June 2, 2004, law enforcement officers returned to
Clyburn's residence, where Snedeker observed empty cold medicine
packs on top of trash cans located outside the back door. Clyburn
admitted to Snedeker that he had manufactured methamphetamine five
or six times since his arrest in August 2003, including once on May
30, 2004, at the residence of James and Joy Lovell. Clyburn was
arrested again.
1
Although shotguns, like rifles and handguns, can fire a
single projectile, shotgun ammunition typically consists of a shell
containing a load of small pellets. These pellets, which become
projectiles when the shotgun is fired, are available in several
sizes. "Seven and a half shot" refers to a pellet size used
primarily for hunting small birds and rabbits.
4
That same day, law enforcement officers executed a search
warrant on the Lovells' residence. The officers found multiple
items associated with the manufacture and use of methamphetamine,
including filters, plastic tubing, matchbooks with the striker
plates removed and glass pipes used for smoking methamphetamine.
The grand jury returned a seven-count indictment. Count One
charged Clyburn with conspiring, from on or about February 11,
2003, until on or about May 30, 2004, with the Lovells and others
known and unknown to the grand jury to manufacture fifty grams or
more of a mixture or substance containing a detectable amount of
methamphetamine in violation of 21 U.S.C. 841(a)(1). Count Six
charged him with on or about August 11, 2003, knowingly using and
carrying a firearm during and in relation to, and possessing a
firearm in furtherance of a drug trafficking crime in violation of
18 U.S.C. 924(c)(1).
Clyburn received a jury trial. At the close of the
government's case, he moved for acquittal and directed verdict as
to Count Six. The district court took this motion under
advisement. At the close of the evidence, Clyburn moved for
judgment of acquittal as to Count One. The district court denied
this motion. The jury returned a verdict of guilty on all seven
counts of the indictment.
Clyburn subsequently moved for judgment of acquittal
notwithstanding the verdict for Counts One and Six, claiming that
5
the evidence was insufficient to sustain the convictions. The
district court denied the motion as to Count One and granted the
motion as to Count Six.
II.
Where, as here, a motion for judgment of acquittal is based
upon insufficiency of the evidence, we review the district court's
decision de novo regardless of whether the district court granted
or denied the motion. See United States v. Lentz, 383 F.3d 191,
199 (4th Cir. 2004) (review of grant of judgment of acquittal based
upon insufficiency of the evidence), cert. denied, 125 S. Ct. 1828
(2005); United States v. Gallimore, 247 F.3d 134, 136 (4th Cir.
2001) (review of denial of judgment of acquittal based upon
insufficiency of the evidence). In doing so, if, viewing the
evidence in the light most favorable to the government, any
rational trier of fact could find the essential elements of the
crime beyond a reasonable doubt, we must sustain the fact finder's
verdict. See Lentz, 383 F.3d at 199; United States v. Lomax, 293
F.3d 701, 705 (4th Cir. 2002).
6
A.
The government claims that, because it presented sufficient
evidence in its case-in-chief2 from which the jury could have found
beyond a reasonable doubt that Clyburn possessed a firearm in
furtherance of a drug trafficking crime, the district court erred
in granting Clyburn's motion as to Count Six. We agree.
The elements of a § 924(c) violation are the commission of a
crime of violence or a drug trafficking crime and either (1) using
or carrying a firearm during and in relation to the crime or (2)
possessing a firearm in furtherance of the crime. 18 U.S.C.
§ 924(c). The jury found Clyburn guilty of Counts One through Five
of the indictment, each of which constitutes a drug trafficking
crime under § 924(c).3 Clyburn does not challenge those
2
Where, as here, the district court reserves its decision on
a motion of judgment of acquittal made at the close of the
government's evidence, it "must decide the motion on the basis of
the evidence at the time the ruling was reserved." Fed. R. Crim. P.
29(b). An appellate court must base its review of the district
court's decision on the same evidence. See United States v.
Brodie, 403 F.3d 123, 133 (3d Cir. 2005); Fed. R. Crim. P. 29
advisory committee's note (1994 Amendments).
3
As used in § 924(c), "the term 'drug trafficking crime' means
any felony punishable under the Controlled Substances Act (21
U.S.C. 801 et seq.), the Controlled Substances Import and Export
Act (21 U.S.C. 951 et seq.), or the Maritime Drug Law Enforcement
Act (46 U.S.C. App. 1901 et seq.)." 18 U.S.C. § 924(c)(2).
Clyburn does not dispute that each of the following counts of
the indictment, being a felony punishable under the Controlled
Substances Act, constitutes a drug trafficking crime: (1)
conspiring to manufacture fifty grams or more of methamphetamine in
violation of 21 U.S.C. 841(a)(1); (2) manufacturing fifty grams or
more of methamphetamine in violation of 21 U.S.C. § 841(a)(1); (3)
possessing pseudoephedrine with the intent to manufacture
7
convictions, and the government does not argue that he used or
carried the firearm during those crimes. Thus, the only question
is whether any rational trier of fact could find that Clyburn
possessed the shotgun in furtherance of one or more of the drug
trafficking crimes.
The mere presence of a firearm at the scene of a drug
trafficking offense is insufficient to establish this element of a
§ 924(c) violation. United States v. Ceballos-Torres, 218 F.3d
409, 414 (5th Cir. 2000). Rather, the government must present
evidence indicating that the possession "furthered, advanced or
helped forward a drug trafficking crime." Lomax, 293 F.3d at 705.
When considering the evidence, however, the fact finder may take
into account any of the myriad ways that a firearm might further or
advance the drug trafficking crime, including, for example,
providing a defense against the theft of drugs, or reducing the
probability that such a theft might be attempted. Id. Moreover,
this court has recognized a nonexclusive list of factors that might
lead a fact finder to conclude that a firearm was possessed in
furtherance of a drug trafficking crime:
"the type of drug activity that is being conducted,
accessibility of the firearm, the type of weapon, whether
methamphetamine in violation of 21 U.S.C. §§ 841(c)(1) and (2); (4)
maintaining a place for the purpose of manufacturing
methamphetamine in violation of 21 U.S.C. § 856(a)(1); and (5)
knowingly and intentionally creating a substantial risk of harm to
human life while manufacturing methamphetamine in violation of 21
U.S.C. § 858.
8
the weapon is stolen, the status of the possession
(legitimate or illegal), whether the gun is loaded,
proximity to drugs or drug profits, and the time and
circumstances under which the gun is found."
Id. (quoting Ceballos-Torres, 218 F.3d at 414-15).
Because a rational trier of fact could find that Clyburn
possessed the shotgun in furtherance of a drug trafficking crime,
we must sustain the jury's verdict and reverse the district court's
grant of judgment of acquittal. Law enforcement officers found the
loaded shotgun in a home used for the manufacture of
methamphetamine. The shotgun was located in close proximity to
both methamphetamine and many of the materials and equipment used
for its manufacture. In fact, the shotgun was in the same room as
the bulk of the items associated with the manufacture of
methamphetamine. Moreover, the jury could infer that the shotgun
was readily accessible to anyone who knew of its location behind
the bedroom door. Finally, Clyburn's possession of the shotgun was
illegal because he was an unlawful user of a controlled substance.4
See 18 U.S.C. § 922(g)(3). A rational trier of fact could readily
find, for instance, that Clyburn possessed the shotgun to protect
the drugs that he had manufactured, as well as the place and the
means to perform the manufacturing operation.
4
Count Seven of the indictment charged Clyburn with, and the
jury found him guilty of, knowingly possessing a firearm as an
unlawful user of a controlled substance in violation of 18 U.S.C.
§ 922(g)(3).
9
Clyburn argues that the factors cited in Lomax do not support
the jury's finding. He notes that neither the evidence adduced at
trial nor common knowledge suggests that methamphetamine
manufacturers making the drug for their own use, rather than
distribution, arm themselves for protection. He admits that the
shotgun was accessible,5 loaded, and in the same room as the
methamphetamine, but points out that it is not the type of weapon
normally associated with drug trafficking, that it was loaded with
"bird-shot,"6 and that the methamphetamine was in closed
containers. The weapon was not stolen, and Clyburn contends that
the fact that his possession was illegal because he was a drug user
does not aid the analysis of whether the firearm was used in
5
Clyburn subsequently argues that the fact that he made no
effort to retrieve the shotgun when law enforcement officers
entered his home is proof that it was not accessible. Clyburn's
inaction does not prove inaccessibility. Trial testimony
established that the law enforcement officers announced their
presence before entering the home and finding Clyburn in the bed
with a female companion. In light of those circumstances,
scenarios other than inaccessibility exist to explain Clyburn's
failure to retrieve the shotgun, including the failure to notice
the officers' presence in time and the decision not to confront law
enforcement officers with a loaded firearm.
6
The shells in the shotgun contained seven and a half shot,
ammunition used primarily for bird and rabbit hunting. However,
the shotgun was not configured for hunting. Virginia law requires
that a shotgun, when being used for hunting, contain a plug, a
device designed to limit its capacity to a total of three shells.
Va. Code Ann. § 29.1-519(A)(2). Clyburn's shotgun did not have a
plug and was loaded with six shells. Although Virginia law does
not require that a plug limiting the shotgun's capacity to three
shells be installed unless the weapon is being used for hunting,
the jury was entitled to consider the shotgun's configuration when
considering the purpose of Clyburn's possession.
10
furtherance of a drug trafficking crime. Finally, Clyburn notes
that the shotgun was found during a raid on his home in a rural
part of southwest Virginia, an area where households typically
contain firearms, at a time when no drug manufacturing or use was
taking place.
The facts cited by Clyburn do not compel the conclusion that
he possessed the shotgun for purposes other than furthering his
drug trafficking crimes, even if they could support such a
conclusion. Although a 20-gauge shotgun may not be the firearm of
choice for individuals engaged in drug trafficking, a jury could
conclude that a loaded shotgun, even one loaded with bird shot,
would serve to protect Clyburn's operation. It could also conclude
that Clyburn would be more likely to risk conviction for illegal
possession of a firearm--a conviction he ultimately received--to
protect his manufacturing operation and the product thereof than to
engage in recreational hunting. Finally, the fact that the
methamphetamine was in closed containers with no drug manufacturing
or use taking place when the law enforcement officers executed the
search warrant does not mean that the shotgun was not being used to
protect the methamphetamine. "'[I]f the evidence supports
different, reasonable interpretations, the jury decides which
interpretation to believe.'" Lentz, 383 F.3d at 199 (quoting
United States v. Wilson, 118 F.3d 228, 234 (4th Cir. 1997)). In
the present case, the jury decided to believe that Clyburn
11
possessed the shotgun in furtherance of a drug trafficking crime,
and this was a reasonable interpretation of the evidence.
B.
On cross-appeal, Clyburn claims that the district court erred
in denying his motion as to Count One because the government
presented insufficient evidence from which the jury could have
found beyond a reasonable doubt that Clyburn engaged in a
conspiracy to manufacture fifty grams or more of a mixture or
substance containing a detectable amount of methamphetamine.
Clyburn concedes that the government carried its burden of proof
with respect to the existence of a conspiracy between him and the
Lovells. At oral argument, Clyburn's counsel further conceded that
Clyburn had manufactured more than fifty grams of methamphetamine.
Clyburn argues only that the government failed to adduce sufficient
evidence to prove that the conspiracy's purpose was to manufacture
at least fifty grams of methamphetamine. We disagree.
The relevant evidence is undisputed. Clyburn admitted that he
had been taught to manufacture methamphetamine by an individual
named George Harper and had been manufacturing the drug for
approximately six months before the search warrant was executed at
his home in August 2003. He also admitted that he had obtained
additional information about manufacturing methamphetamine from his
ex-girlfriend and her acquaintances. Finally, he admitted that,
12
after his arrest in August 2003, he had told the Lovells what he
needed to manufacture methamphetamine, that they had provided the
materials, and that he had manufactured methamphetamine using the
materials provided by them on multiple occasions.
Based on this evidence, the jury reasonably could have
concluded that all of the individuals who knowingly assisted
Clyburn, by providing either knowledge or materials, engaged in a
single conspiracy with the common objective of manufacturing
methamphetamine. A conspiracy can exist without every member of
the conspiracy knowing its full scope or all of the other members
and without every member participating in all of its activities or
for the entire length of its existence. United States v. Burgos,
94 F.3d 849, 858 (4th Cir. 1996) (en banc). Therefore, the jury
reasonably could have concluded that the conspiracy to manufacture
methamphetamine began when Harper taught Clyburn the manufacturing
method and continued through Clyburn's interactions with his ex-
girlfriend, her acquaintances and the Lovells, with Clyburn acting
as the linchpin for the conspiracy. The result of that conspiracy
was the manufacture of more than fifty grams of methamphetamine.7
7
Although Clyburn did not concede at trial that he had
manufactured more than fifty grams of methamphetamine, the jury
reasonably could have reached that conclusion based on Snedeker's
testimony as to the frequency with which Clyburn engaged in the
manufacturing process, the amount of pseudoephedrine he used each
time and the yield of the manufacturing method.
13
The jury reasonably could have inferred that the object of the
conspiracy was to manufacture that amount of methamphetamine.8
III.
For the foregoing reasons, we reverse the district court's
grant of Clyburn's motion for judgment of acquittal notwithstanding
the verdict as to Count Six of the indictment and remand to the
district court to reinstate the jury's verdict of guilty. We
affirm the district court's denial of Clyburn's motion for judgment
of acquittal notwithstanding the verdict as to Count One of the
indictment.
REVERSED AND REMANDED IN PART;
AFFIRMED IN PART
8
This conclusion does not, as suggested in the concurring
opinion, constitute impermissible speculation. It simply points,
in response to a challenge to the sufficiency of the evidence, to
evidence adduced at trial from which the jury could have concluded
that Clyburn and those individuals who provided him with knowledge
and materials for his manufacturing operation engaged in a single
conspiracy, the intent of which was the manufacture of
methamphetamine for the use of the individuals involved.
14
GREGORY, Circuit Judge, concurring:
I write separately to express my reasons for affirming
Clyburn’s conviction for conspiracy to manufacture fifty grams or
more of a mixture containing a detectable amount of methamphetamine
under Count One. Clyburn concedes that he engaged in a conspiracy
with the Lovells to manufacture methamphetamine on May 30, 2004,
and only challenges the amount attributable to that conspiracy.
According to Clyburn’s trial testimony, the Lovells asked him to
make methamphetamine for a party they were hosting at their
residence. J.A. 191-92. The Lovells supplied Clyburn with two
boxes of matches and four boxes of thirty-milligram Sudafed pills.
Clyburn cooked and gassed the pseudoephedrine contained in the
pills into a liquid form at his own residence. J.A. 213-14.
Clyburn admitted that he then brought over a bottle filled with
approximately 500 grams of “water which contained a detectable
amount of methamphetamine.” J.A. 192, 203, 213-14.* Thus,
Clyburn’s direct testimony supported the jury’s finding that he
manufactured at least fifty grams of a mixture containing a
detectable amount of methamphetamine as part of a conspiracy with
the Lovells. I would therefore resolve the merits of this claim on
that testimony alone.
*
Although Clyburn claimed that the methamphetamine contained
in the water was not usable, he admitted he frequently injected
methamphetamine into his arm or leg with a syringe filled with
water and methamphetamine. J.A. 172, 203-04.
15
The majority proceeds, however, to delve into other
conspiracies that may have occurred during the six-month period in
which Clyburn manufactured methamphetamine. In so doing, the
majority impermissibly veers toward speculation by attributing the
total amount of methamphetamine (approximately fifty to ninety
grams) Clyburn had manufactured during this six-month period to an
overarching conspiracy between Clyburn, his various girlfriends,
his girlfriends’ unidentified acquaintances, Harper, and the
Lovells. There was no evidence to support the theory that Clyburn
was the “lynchpin” of these numerous, smaller conspiracies, which
began and ended at various times during the six-month period. In
effect, the majority simply collapses distinct instances of
Clyburn’s methamphetamine production with unrelated individuals
into a single conspiracy between all of these individuals based
solely on the fact that they occurred during the six-month period.
Cf. United States v. Barsanti, 943 F.2d 428, 439 (4th Cir. 1991)
(“A single conspiracy exists where there is one overall agreement,
. . . or one general business venture. . . . Whether there is a
single conspiracy depends upon the overlap of [the] main actors,
methods and goals.” (internal quotation marks and citations
omitted)).
I otherwise concur in the opinion and the judgment.
16