UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 08-4978
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
MARIO FITZGERALD PETTIFORD,
Defendant - Appellant.
Appeal from the United States District Court for the Middle
District of North Carolina, at Durham. William L. Osteen, Jr.,
District Judge. (1:08-cr-00005-WO-1)
Submitted: June 29, 2009 Decided: July 24, 2009
Before TRAXLER, Chief Judge, and NIEMEYER and DUNCAN, Circuit
Judges.
Affirmed by unpublished per curiam opinion.
James B. Craven, III, Durham, North Carolina, for Appellant.
Anna Mills Wagoner, United States Attorney, Anand P. Ramaswamy,
Assistant United States Attorney, Greensboro, North Carolina,
for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Mario Fitzgerald Pettiford appeals his conviction,
following a jury trial, of possession with intent to distribute
9 grams of cocaine base, in violation of 21 U.S.C. § 841(a)(1)
(2006) (Count One), possession of a firearm in furtherance of a
drug trafficking crime, in violation of 18 U.S.C.
§ 924(c)(1)(A)(i) (2006) (Count Two), possession of body armor
by a violent felon, in violation of 18 U.S.C. § 931 (2006)
(Count Three), and possession of a firearm by a felon, in
violation of 18 U.S.C. § 922(g) (2006) (Count Four), and his
420-month imprisonment sentence. 1 On appeal, he challenges the
district court’s denial of his motion to suppress, and its
denial of his Fed. R. Crim. P. 29 motion for judgment of
acquittal as to Counts One and Two. We affirm.
Pettiford was arrested when law enforcement officers
received a report from a woman identified as “K.S.” that, while
visiting Pettiford at his home, Pettiford produced a small
handgun, prevented her from leaving the house, raped her, then
1
Pettiford was sentenced at the low end of the advisory
Guideline range to 360 months’ imprisonment, followed by eight
years of supervised release on Count One, 60 months’
imprisonment to run consecutive to Count One on Count Two, 36
months’ imprisonment to run concurrent to Count One on Count
Three, and 360 months’ imprisonment to run concurrent to Count
One on Count Four of the indictment, for a total term of
imprisonment of 420 months.
2
robbed her of six one-hundred dollar bills. K.S.’s husband was
a long-time friend of Pettiford, and was in jail at the time of
the incident. Police videotaped their interview of K.S. and,
using the information she provided, obtained a search warrant of
Pettiford’s house, seeking evidence of the rape, robbery, and
kidnapping. Pettiford was at home when the warrant was
executed, in a bedroom. In the top drawer of a dresser in the
bedroom in which Pettiford was located, police found a bag of
crack cocaine with a net weight of 9 grams, and $298.17 in
currency. In another dresser in the same bedroom, police found
a fully loaded .38 caliber Taurus revolver (manufactured in
Brazil), and a wallet containing $1000 in currency. Officers
also found a blue duffel bag containing a full-face ski mask,
black gloves, black hooded sweatshirt, black long-sleeved T-
shirt, black nylon cap, and ballistic vest body armor.
Following waiver of his Miranda 2 rights, police interviewed
Pettiford, who claimed he had consensual sex with K.S., admitted
possession of the firearm, possession of the crack, possession
of the body armor, and acknowledged he sold drugs. Pettiford
2
See Miranda v. Arizona, 384 U.S. 436 (1966).
3
was federally indicted as set forth above. The jury convicted
Pettiford on all counts. 3
Pettiford first challenges the district court’s denial
of his motion to suppress, specifically claiming the district
court erred in denying his motion for a full scale evidentiary
hearing pursuant to Franks v. Delaware, 438 U.S. 154 (1978),
advanced on the basis that the search warrant was based on false
information provided by the alleged rape victim. We review
legal conclusions underlying the denial of a motion to suppress
de novo, and factual findings for clear error. United States v.
Moreland, 437 F.3d 424, 429 (4th Cir. 2006). In reviewing the
legality of the issuance of a search warrant, the relevant
inquiry is whether, under the totality of the circumstances, the
issuing judge had a substantial basis for concluding that there
was probable cause to issue the warrant. Illinois v. Gates, 462
U.S. 213, 238 (1983). We give great deference to the district
court’s determination of probable cause. Id. at 236.
There is a heavy burden on a defendant in establishing
the need for a Franks hearing. United States v. Jeffus, 22 F.3d
3
At trial, there was no mention to the jury of the
allegations of K.S. as to the rape, robbery, or kidnapping, and
testimony included only that Pettiford’s home was searched with
a lawfully obtained search warrant. The 68-minute video
recording of Pettiford’s interview with authorities was redacted
to remove any mention of the rape, kidnapping, and robbery.
4
554, 558 (4th Cir. 1994). A defendant must "make a substantial
preliminary showing that a false statement knowingly and
intentionally, or with reckless disregard for the truth, was
included by the affiant in the warrant affidavit.” United
States v. Colkley, 899 F.2d 297, 300 (4th Cir. 1990) (quoting
Franks, 438 U.S. at 155-56). The “showing ‘must be more than
conclusory’ and must be accompanied by a detailed offer of
proof.” Id. (quoting Franks, 438 U.S. at 171). Allegations
should be accompanied by a statement of supporting reasons, and
affidavits or sworn or otherwise reliable statements of
witnesses should be furnished, or their absence satisfactorily
explained. Franks, 438 U.S. at 171.
In this case, Pettiford’s motion to suppress contained
merely the same arguments of unreliability he asserts on appeal. 4
No affidavits or sworn or otherwise reliable statements of
witnesses accompanied the motion and the absence of any offer of
proof was not explained, as is required under Franks. Without
such preliminary showing of falsity, Pettiford failed to meet
his burden to mandate a Franks hearing. Hence, the district
4
He claims the information on which the warrant was based
was unreliable because: (1) K.S. waited five days before
reporting the alleged rape to the police; (2) her husband and
Pettiford had served time together in prison and knew each
other; and (3) she was unworthy of belief because she did not
want her husband to know she had consensual sex with Pettiford.
5
court did not err in denying Pettiford his request for a Franks
hearing, nor did it err in denying his motion to suppress the
evidence obtained from the search warrant.
Nor do we find merit to Pettiford’s challenge to the
district court’s denial of his Rule 29 motion for judgment of
acquittal relative to Counts One and Two of the indictment. We
review de novo a district court’s denial of a motion for a
judgment of acquittal. United States v. Alerre, 430 F.3d 681,
693 (4th Cir. 2005). In conducting such a review, we are
obliged to sustain a guilty verdict if, viewing the evidence in
the light most favorable to the prosecution, the verdict is
supported by substantial evidence. United States v. Burgos, 94
F.3d 849, 862 (4th Cir. 1996) (en banc) (citing Glasser v.
United States, 315 U.S. 60, 80 (1942)). We have “defined
‘substantial evidence’ as ‘evidence that a reasonable finder of
fact could accept as adequate and sufficient to support a
conclusion of a defendant’s guilt beyond a reasonable doubt.’”
Alerre, 430 F.3d at 693 (quoting Burgos, 94 F.3d at 862). We
“consider circumstantial as well as direct evidence, and allow
the government the benefit of all reasonable inferences from the
facts proven to those sought to be established,” United States
v. Tresvant, 677 F.2d 1018, 1021 (4th Cir. 1982), and we assume
that the jury resolved all contradictions in the testimony in
favor of the Government. United States v. Brooks, 524 F.3d 549,
6
563 (4th Cir.), cert. denied, 129 S. Ct. 519 (2008). We “can
reverse a conviction on insufficiency grounds only when the
prosecution’s failure is clear.” United States v. Moye, 454
F.3d 390, 394 (4th Cir. 2006) (en banc) (internal quotation
marks and citation omitted).
To establish guilt on Count One, possession with
intent to distribute a controlled substance, the Government must
have proven, beyond a reasonable doubt, that Pettiford: (1)
knowingly; (2) possessed a controlled substance; (3) with the
intent to distribute it. United States v. Burgos, 94 F.3d 849,
873 (4th Cir. 1996). The discovery of the crack cocaine and
money by police, together with Pettiford’s statements, in
response to police questioning as to whether he sold drugs, that
he “hustle[d] a little bit” and that he obtained body armor by
trading drugs for the item, plus the failure to discover any
evidence of personal use of crack cocaine in Pettiford’s house,
was circumstantial evidence which amply supported the jury’s
determination that Pettiford possessed the crack cocaine with
the intent to distribute it.
To establish guilt on Count Two, the Government was
required to prove that “possession of a firearm furthered,
advanced, or helped forward a drug trafficking crime.” United
States v. Lomax, 293 F.3d 701, 705 (4th Cir. 2002). Factors
upon which a fact-finder may conclude that a firearm was used in
7
furtherance of a drug trafficking activity include the type of
drug activity that is being conducted, accessibility of the
firearm, the type of weapon, whether the weapon is stolen,
whether the weapon is legitimately or illegally possessed,
whether the gun is loaded, proximity of the firearm to drugs or
drug profits, and the time and circumstances under which the gun
is found. Id.
In this case, we find that the evidence of Pettiford’s
illegal possession of a loaded handgun, in a holster for wear on
the person, found in a drawer with his wallet in the same room
as Pettiford, crack cocaine, and a large amount of cash,
together with his admission of drug-selling, is sufficient, when
viewed in the light most favorable to the Government, 5 to support
the jury’s conclusion that Pettiford possessed the firearm in
furtherance of a drug trafficking crime. Thus, the district
court did not err in denying Pettiford’s Rule 29 motion relative
to Counts One and Two of the indictment.
Accordingly, we affirm Pettiford’s conviction and
sentence. We dispense with oral argument because the facts and
legal contentions are adequately presented in the materials
5
See Burgos, 94 F.3d at 862.
8
before the court and argument would not aid the decisional
process.
AFFIRMED
9