United States v. Iiland

F I L E D
United States Court of Appeals
Tenth Circuit

JUL 3 2001
PUBLISH
PATRICK FISHER
Clerk
UNITED STATES COURT OF APPEALS
TENTH CIRCUIT

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v. No. 00-5012

SIDNEY RONNELL IILAND,

Defendant-Appellant.

Appeal from the United States District Court
for the Northern District of Oklahoma
(D.C. No. 99-CR-20-K)

Submitted on the Briefs:

W. Creekmore Wallace, II, Sapulpa, Oklahoma, for Defendant-Appellant.

Stephen C. Lewis, United States Attorney, and Allen J. Litchfield, Assistant
United States Attorney, for Plaintiff-Appellee.

Before SEYMOUR and McWILLIAMS, Circuit Judges, and MILLS, * District
Judge.

SEYMOUR, Circuit Judge.

*
Honorable Richard Mills, United States District Judge, United States
District Court for the Central District of Illinois, sitting by designation.
 Sidney Ronnell Iiland and sixteen others were named in a multicount

indictment charging numerous offenses involving drug trafficking. Mr. Iiland

was convicted after a jury trial of distributing various controlled substances,

possessing a firearm after a former felony conviction, possessing a firearm in

furtherance of a drug trafficking offense, and maintaining a location for the

purpose of distributing cocaine. On appeal, Mr. Iiland asserts (1) the trial court

erred in failing to suppress wiretap evidence and evidence derived therefrom; (2)

the court erroneously allowed the admission of evidence discovered as a result of

a stale search warrant; (3) he was prejudiced by going to trial with three other

codefendants; and (4) the evidence was insufficient to sustain his conviction for

possessing a firearm in furtherance of a drug trafficking crime. We affirm in part

and reverse in part.

I

Wiretap Evidence

During the investigation of the criminal activity underlying the indictment,

the district court issued wiretap orders authorizing electronic eavesdropping on

the telephone at Mr. Iiland’s apartment for a sixty-day period. Before trial, Mr.

Iiland and other codefendants moved to suppress the audiotapes derived from

these wiretaps. After a hearing on the matter, the district court held defendants

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had failed to rebut the presumption that the wiretap orders were proper.

Recordings of intercepted calls obtained through these wiretaps were played for

the jury at trial. Mr. Iiland contends on appeal that the court committed

reversible error in failing to suppress these materials. We disagree.

Electronic eavesdropping by law enforcement officials is governed by the

federal wiretap statute, Title III of the Omnibus Crime Control and Safe Streets

Act of 1968, as amended. See 18 U.S.C. §§ 2510-22. The statute establishes a

three-part procedure for obtaining a wiretap order, under which an officer must

obtain administrative approval before applying to a federal judge for a wiretap,

the officer must present a written application to the judge, and the judge must

make certain findings and issue an order containing specified elements. See

United States v. Castillo-Garcia, 117 F.3d 1179, 1184-85 (10th Cir. 1997). The

statute contains a “necessity” requirement, under which the officer must establish

and the court must find that “normal investigative procedures have been tried and

have failed or reasonably appear to be unlikely to succeed if tried or to be too

dangerous.” 18 U.S.C. § 2518(3)(c). This requirement is intended “to ensure that

the relatively intrusive device of wiretapping ‘is not resorted to in situations

where traditional investigative techniques would suffice to expose the crime.’”

United States v. Edwards, 69 F.3d 419, 429 (10th Cir. 1995) (quoting United

States v. Kahn, 415 U.S. 143, 153 n.12 (1974)). “If an application was granted

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without meeting the necessity requirement, the wiretap evidence must be

suppressed.” United States v. Green, 175 F.3d 822, 828 (10th Cir. 1999). Mr.

Iiland contends the district court erred in ruling that the necessity requirement

was satisfied. 1

On appeal from a motion to suppress evidence obtained
pursuant to a wiretap, we accept the district court’s factual findings
unless clearly erroneous, review questions of law de novo, and view
the evidence in the light most favorable to the prevailing party. The
question of whether the government demonstrated sufficient
“necessity” . . . to support the issuance of a wiretapping order is a
question of law which we review de novo.

1
Mr. Iiland also appears to argue on appeal that the affidavits supporting
the wiretap applications contained material omissions and false statements.
“[A]pplication[s] and affidavit[s] for wiretap authorization are subject to the
requirements of Franks v. Delaware, 438 U.S. 154 (1978),” which mandates the
suppression of evidence obtained on the basis of an affidavit containing
knowingly false information. United States v. Green, 175 F.3d 822, 828 (10th
Cir. 1999). Evidence obtained because of material omission also must be
suppressed. Id.
Mr. Iiland did not make this argument to the district court during the
pretrial hearing on defendants’ motion to suppress evidence resulting from the
wiretaps. He challenged the admission of the wiretap evidence in his post-trial
motion for new trial, but he did not do so on the ground that the orders were
obtained in violation of Franks. Accordingly, we review the Franks claim only
for plain error. See Fed. R. Crim. P. 52(b).
We may correct an error not raised at trial under Rule 52(b) only if it is
“both ‘obvious and substantial.’” United States v. Nieto, 60 F.3d 1464, 1467
(10th Cir. 1995). The errors alleged by Mr. Iiland are neither, and therefore they
do not rise to plain error.

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Castillo-Garcia, 117 F.3d at 1186 (citations omitted). A wiretap order is

presumed proper and the defendant must bear the burden of overcoming this

presumption. Green, 175 F.3d at 829-30.

In examining necessity challenges to wiretap orders, we have
repeatedly held that law enforcement officials are not required “to
exhaust all other conceivable procedures before resorting to
wiretapping.” Consequently, we have upheld applications for
wiretap orders where the application indicated: (1) several
investigatory methods had been utilized prior to resort to
wiretapping; (2) normal investigative techniques had been frustrated
“by various problems local police were unable to overcome;” (3)
increased visual surveillance would have increased the possibility of
detection; and (4) potential witnesses were unwilling to testify in
court because of fear of reprisal.

Edwards, 69 F.3d at 429-30 (citations omitted).

We have carefully reviewed the applications for the wiretaps and the

supporting affidavits, as well as the transcript of the pretrial hearing on defense

motions to suppress the evidence derived from the taps, and we agree with the

district court that Mr. Iiland failed to rebut the presumption that the orders were

proper. The district court found that several investigatory methods had been tried

with little if any success, and supported this determination with specific evidence

presented by the government showing that the wiretaps were necessary to develop

the full scope and breadth of any conspiracy. Accordingly, the court did not err in

rejecting Mr. Iiland’s necessity challenge.

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 II

Search Warrants

On March 8, 1999, FBI agents obtained a warrant to search Mr. Iiland’s

residence and a mini storage unit he had rented. The search of the residence

uncovered weapons, ammunition and scales, and the search of the storage unit

revealed a substantial amount of powdered cocaine. Mr. Iiland moved to suppress

the results of these searches on the ground that the information in the affidavit

supporting the warrants was stale and therefore not sufficient to support a

probable cause determination. The district court denied the motion to suppress,

stating that adequate probable cause existed in view of the ongoing nature of the

criminal activity alleged. We agree.

Upon review of the denial of a motion to suppress, we view the evidence in

the light most favorable to the government and accept the district court’s factual

findings unless clearly erroneous. United States v. Le, 173 F.3d 1258, 1264 (10th

Cir. 1999). The ultimate determination of reasonableness, however, “is a question

of law which we review de novo, considering the totality of the circumstances.”

Id. Although we give the magistrate’s probable cause determination “great

deference,” we will not defer “if the affidavit does not provide a substantial basis

for concluding that probable cause existed.” Id. (internal quotations omitted).

Probable cause to search cannot be based on stale information
that no longer suggests that the items sought will be found in the

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 place to be searched. The determination of timeliness, however, does
not depend on simply the number of days that have elapsed between
the facts relied on and the issuance of the warrant; instead, whether
the information is too stale to establish probable cause depends on
“the nature of the criminal activity, the length of the activity, and the
nature of the property to be seized.”

United States v. Snow, 919 F.2d 1458, 1459-60 (10th Cir. 1990) (citations

omitted).

Mr. Iiland contends the facts recited in the affidavit supporting the search

warrants at issue were too remote in time to justify a finding that probable cause

existed at the time of issuance. It is true that many of the circumstances set out in

the affidavit concerned activities by Mr. Iiland and codefendants that occurred in

October and November of 1998, some three months before the warrant was

obtained. However, the affidavit also contains facts demonstrating that the

alleged drug trafficking activity was ongoing over a considerable period of time.

In these circumstances the passage of time between the suspected illegal activities

and issuance of the warrant diminishes in significance. See Le, 173 F.3d at 1266-

67 (“passage of time is not of critical importance” where offense ongoing);

United States v. Reyes, 798 F.2d 380, 382 (10th Cir. 1986) (not stale where

“repeated drug offenses at several month intervals”); United States v. Sherman,

576 F.2d 292, 295-96 (10th Cir. 1978) (affidavit valid where activities

“continuous in nature”). In addition, the affidavit tended to show that Mr. Iiland

kept the drugs he sold in the storage unit, and that he was still renting and visiting

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the unit a few days before the warrant was issued. Considering the totality of the

circumstances, we conclude that the information upon which probable cause was

based was not impermissibly stale.

III

Joint Trial

Mr. Iiland argues he was denied due process when made to stand trial with

three codefendants. He points out that he was not linked to the acts of his

codefendants, and that most of the evidence of criminal activity presented at trial

was directed to his codefendants’ involvement in the drug conspiracy. Although

Mr. Iiland was originally charged with conspiracy, the trial court granted his

motion for acquittal on that charge before the case was submitted to the jury.

Mr. Iiland did not seek a severance prior to trial. His argument on appeal

appears to be grounded on the fact that the trial court granted his motion for

acquittal on the conspiracy count, but he did not move for severance or a mistrial

at that time. We therefore review his claim for plain error, which must be “both

‘obvious and substantial.’” United States v. Nieto, 60 F.3d 1464, 1467 (10th Cir.

1995) (quoting United States v. Torres, 53 F.3d 1129, 1141 (10th Cir. 1995)). In

so doing, we bear in mind that

[s]everance should be granted only if Defendants will be prejudiced
by their joinder such that “‘there is a serious risk that a joint trial

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 would compromise a specific trial right of one of the defendants, or
prevent the jury from making a reliable judgment about guilt or
innocence.’” Defendants have the burden of showing prejudice.

United States v. Williams, 45 F.3d 1481, 1484 (10th Cir. 1995) (citation omitted);

see also Zafiro v. United States, 506 U.S. 534, 539 (1993).

Mr. Iiland has failed to show obvious and substantial prejudice arising from

his joint trial. He was charged with conspiracy at the start of trial, and “[i]n a

conspiracy trial it is preferred that persons charged together be tried together.”

Edwards, 69 F.3d at 434 (quotation omitted). The requisite showing of prejudice

arising from a joint trial is not made by a complaint that one defendant is less

culpable than another, Williams, 45 F.3d at 1484, or by an allegation that a

defendant would have a better chance of acquittal in a separate trial, Zafiro, 506

U.S. at 540, or by a complaint of the “spill-over” effect of damaging evidence

presented against a codefendant, Edwards, 69 F.3d at 434. Here the trial judge

minimized any possibility of prejudice by carefully instructing the jury to consider

the case against each defendant separately. 2 Limiting instructions will often cure

2
The jury was instructed:

A separate crime is charged against one or more of the
Defendants in each count of the indictment. Each count, and the
evidence pertaining to it, should be considered separately. The case
[against] each Defendant should be considered separately and
individually. The fact that you may find one or more of the
Defendants guilty or not guilty of any of the crimes charged should
(continued...)

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the risk of prejudice. See Zafiro, 506 U.S. at 540-41; Edwards, 69 F.3d at 434-

35. The conspiracy charge against Mr. Iiland was never submitted to the jury, and

the evidence of his guilt with respect to the remaining drug-related counts was

substantial. Under these circumstances, we conclude that Mr. Iiland has not

shown plain error resulting from his joint trial.

IV

Firearm Possession

Mr. Iiland was convicted of violating 18 U.S.C. § 924(c), which prohibits

use or possession of a firearm in connection with crimes of violence and drug

trafficking crimes. The applicable jury instruction required the government to

prove that “[d]uring and in relation to the commission of [a drug trafficking

crime], the Defendant knowingly used or carried a firearm, or alternatively, that

the Defendant possessed a firearm in furtherance of the commission of that

crime.” Supp. App., vol. II, doc 6 at 46. No evidence was introduced at trial to

show that Mr. Iiland used or carried a firearm during and in relation to a drug

2
(...continued)
not control your verdict as to any other crime or any other Defendant.
You must give separate consideration to the evidence as to each
Defendant.

Supp. App., vol. II, doc. 6 at 6.

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trafficking offense. He was convicted under the statute’s “possession” prong,

based on evidence that he was involved in drug trafficking and owned a gun that

was found along with scales in his apartment. Mr. Iiland contends this evidence

was insufficient to show that he possessed the firearm “in furtherance” of a drug

trafficking crime and that the trial court therefore erred in denying his motion for

acquittal on that charge. We agree.

The provision of section 924(c) directed to possessing a firearm in

furtherance of a drug crime was added in 1998 as one of several amendments to

that section promulgated in response to the Supreme Court’s decision in Bailey v.

United States, 516 U.S. 137 (1995). Although Bailey addressed the “use” prong

of section 924(c), that opinion and the congressional response shed considerable

light on the construction and application of the new provision punishing

possession of a firearm in furtherance of a drug crime.

In Bailey, the Supreme Court struck down the circuit court’s definition of

“use” as a consideration of the accessibility and proximity of the weapon. See

United States v. Bailey, 36 F.3d 106, 118 (D.C. Cir. 1994) (setting forth

“accessibility and proximity” test). The Court concluded that the term “requires

evidence sufficient to show an active employment of the firearm by the

defendant.” Bailey, 516 U.S. at 143 (emphasis in original). The Court addressed

only the “use” element and left undisturbed the circuit’s treatment of the other

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section 924(c) requirement, that the use be “during and in relation to” a drug

trafficking offense. See Bailey, 36 F.3d at 115-17. Relying on Smith v. United

States, 508 U.S. 223 (1993), the circuit court had pointed out that

the government must make two distinct showings in order to obtain a
conviction under § 924(c)(1): “that the defendant ‘use[d] or carrie[d]
a firearm’” and “that the use or carrying was ‘during and in relation
to’” a predicate offense. Therefore, in determining what the proper
standard should be, we must determine both what constitutes the use
or carrying of a gun and in what circumstances such a use or carrying
is in relation to a drug trafficking offense.

Bailey, 36 F.3d at 114 (citation omitted).

In Smith, the defendant had exchanged his gun for drugs. He conceded that

his “use” of a firearm occurred “during” a drug trafficking crime, but disputed

whether his use was “in relation to” the offense. Smith, 508 U.S. at 237.

Although declining to define the precise contours of the requirement, the Court

stated that the phrase “in relation to”

at a minimum, clarifies that the firearm must have some purpose or
effect with respect to the drug trafficking crime; its presence or
involvement cannot be the result of accident or coincidence. As one
court has observed, the “in relation to” language “allay[s] explicitly
the concern that a person could be” punished under § 924(c)(1) for
committing a drug trafficking offense “while in possession of a
firearm” even though the firearm’s presence is coincidental or
entirely “unrelated” to the crime. Instead, the gun at least must
“facilitat[e], or ha[ve] the potential of facilitating,” the drug
trafficking offense.

Id. at 238 (citations omitted).

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 As the Court pointed out in Bailey and Smith, the former section 924(c) was

not intended to punish possession alone. See id.; see also Bailey, 516 U.S. at 143.

The legislative history of the 1998 amendment adding “possession” to section

924(c) expressly clarified that the addition to the statute was not intended to cover

every possession of a firearm by one who also is a drug trafficker. Instead,

[t]he government must clearly show that a firearm was possessed to
advance or promote the commission of the underlying offense. The
mere presence of a firearm in an area where a criminal act occurs is
not a sufficient basis for imposing this particular mandatory
sentence. Rather, the government must illustrate through specific
facts, which tie the defendant to the firearm, that the firearm was
possessed to advance or promote the criminal activity.

H.R. R EP . N O . 105-344, 1997 WL 668339, at 9 (1997) (emphasis added).

Significantly, the House Report also states Congress’ view that the “in

furtherance of” requirement that accompanies “possession” “is a slightly higher

standard” than the “during and in relation to” standard set out in the “use” and

“carry” prongs, and therefore “encompasses the ‘during and in relation to’

language.” Id. (emphasis added). Thus, if the facts do not establish that a firearm

was possessed “during and in relation to” a drug crime, they will not satisfy the

more stringent “in furtherance of” language. Most telling for our case, the Report

states Congress’ opinion that the facts in Bailey may not have been sufficient to

sustain a conviction for possessing a firearm “in furtherance of” a drug crime

under the amended statute. Id. Mr. Bailey was convicted under section 924(c)(1)

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after police found a loaded pistol inside a locked bag in the trunk of his car and

cocaine in the car’s passenger compartment.

In that case, a prosecution expert testified at Mr. Bailey’s trial that
drug dealers frequently carry a firearm to protect themselves, as well
as their drugs and money. Standing on its own, this evidence may be
insufficient to meet the “in furtherance of” test. The government
would have to show that the firearm located in the trunk of the car
advanced or promoted Mr. Bailey’s drug dealing activity.

Id. (emphasis added).

While this court has not yet addressed the possession element and its “in

furtherance” requirement, 3 our cases discussing the terms “use and carry,”

3
It appears that only two published cases have addressed “possession”
under the amended version of section 924(c). See United States v. Ceballos-
Torres, 218 F.3d 409 (5th Cir. 2000), modified on denial of rehearing, 226 F.3d
651 (5th Cir. 2000), cert. denied, 121 S. Ct. 839 (2001); United States v. Speight,
95 F. Supp.2d 595 (S.D. W. Va. 2000). In Ceballos-Torres, officers found a
loaded handgun in plain view on a bed. A subsequent search uncovered a large
amount of cocaine, empty kilo wrappers, cash, an electronic scale and straws
modified for sniffing narcotics. The defendant was convicted of possessing a
firearm in furtherance of his drug trafficking offense and he appealed, contending
the evidence was insufficient. See 218 F.3d at 411. On appeal, the court
recognized that mere presence of the weapon at the scene is not enough to
convict. The court explained that it understood the legislative history of the
section 924(c) amendments

to re-emphasize that “mere presence” is not enough. The “mere
presence” test is one based on generality–anytime a drug dealer
possesses a gun, that possession is in furtherance, because drug
dealers generally use guns to protect themselves and their drugs.
What is instead required is evidence more specific to the particular
defendant, showing that his or her possession actually furthered the
drug trafficking offense.
(continued...)

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“during,” and “in relation to” inform our decision that the facts here do not meet

the “in furtherance” requirement. In United States v. Matthews, 942 F.2d 779

(10th Cir. 1991), for example, police executing a search warrant for the apartment

of a suspected drug dealer discovered Mr. Matthews, a guest who had arrived in

town the night before, attempting to flush drugs down the toilet. Two guns were

found in the living room beside a TV stand. A coconspirator testified at trial that

the guns were routinely used for protection during “drug-selling excursions.” Id.

at 782. Mr. Matthews was charged with “use” under section 924(c) and argued

that the evidence was insufficient. We agreed. Although we concluded that the

guns were readily accessible, nothing presented at trial showed that Mr. Matthews

intended to use the guns, that he ever handled the guns or saw another

coconspirator do so in connection with drug activities, that the firearms formed an

3
(...continued)

Id. at 414. The court ultimately concluded the proximity of the loaded weapon to
substantial quantities of drugs and cash supported a finding that the gun was kept
to guard against robbery and thus furthered the drug trafficking enterprise. Id. at
415.

In Speight, guns and drugs were found in an apartment, and one defendant
testified at trial that the guns were “obtained and kept . . . for the purpose of
protecting their drugs and money.” 95 F. Supp.2d at 597. The district court
dismissed the section 924(c) possession charge because the indictment had
erroneously stated the “during and in relation to” standard rather than the stricter
“in furtherance” standard applicable to possession. Id. at 599.

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integral part of the criminal conspiracy, or that Mr. Matthews intended or

approved their use. Id. at 783-84.

In United States v. Nicholson, 983 F.2d 983 (10th Cir. 1993), we

distinguished between the requirement that the firearm be used or carried and the

requirement that “the use or carriage of the weapon was ‘during and in relation

to’ the drug trafficking crime.” Id. at 990. Quoting Matthews, we stated that to

satisfy the relational requirement, the government must offer evidence that the

defendant intended the weapon to be available during the drug transaction. Id.

We held that the government had “met its burden of proving that the presence of

the gun played an integral role in the drug trafficking conspiracy by helping to

ensure its success.” Id. Although the defendant argued he always carried a

weapon for personal protection, even when engaged in lawful activities, we held

the presence of the gun could specifically “ensure [the] success” of the drug

distribution activities by protecting defendant’s drugs and cash. Id. Thus, the

gun was carried “in relation to” the drug trafficking offense.

In United States v. Baker, 30 F.3d 1278 (10th Cir. 1994), we did not clearly

distinguish the “use” and “during and in relation to” elements, instead defining

“use” to include relational and accessibility requirements. We held that a

defendant “uses a firearm for purposes of § 924(c)(1) when: (1) the defendant has

ready access to the firearm and (2) the firearm was an integral part of his criminal

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undertaking and its availability increased the likelihood that the criminal

undertaking would succeed.” Id. at 1279 (citation and internal quotations

omitted). The “integral part” element is presumed whenever there is ready access

to the firearm during commission of the offense, but a defendant may overcome

that presumption “by presenting evidence that the weapon was present for a

reason other than facilitating the drug transaction.” Id. at 1280 (citation omitted).

Mr. Baker’s gun was readily accessible during his drug transactions, and we

upheld his conviction upon concluding that a reasonable jury could have found

the gun was an integral part of his drug business and increased the likelihood of

its success. Id.

In United States v. Hall, 20 F.3d 1084 (10th Cir. 1994), drugs were found

on top of a refrigerator in the kitchen of a residence, while a firearm was located

on the top shelf of a closet in an upstairs bedroom. We affirmed the district

court’s dismissal of a section 924(c) charge, holding that “[t]he record fails to

establish any linkage between [the defendant] and the firearm or the firearm and

the drugs. All the government has proven is that the firearm was present in [the

defendant’s] residence.” Id. at 1089. Although the gun was at the scene where

the drug crime was committed, “‘[t]here [was] utterly no proof that [the] gun was

used at any time, for any reason, in any way related to the traffic of narcotics’ or

that defendant intended for it to be available for use.” Id. at 1090.

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 We also addressed the “during and in relation to” standard in United States

v. Richardson, 86 F.3d 1537 (10th Cir. 1996). We stated there that under this

standard the government was required to show that “the defendant intended the

weapon to be available for use during the drug transaction,” “that the defendant

availed himself of the weapon and that the weapon ‘played an integral role’ in the

drug offense.” Id. at 1548. While Mr. Richardson possessed firearms on his

person and in his truck, he did not at that time possess drugs, and no evidence

showed a firearm was present or even mentioned during the drug transactions at

issue. Consequently, we held the evidence was insufficient to support Mr.

Richardson’s conviction for carrying a firearm during and in relation to drug

possession. Id. 4

Finally, in United States v. Shuler, 181 F.3d 1188 (10th Cir. 1999), the

defendant was charged with carrying firearms during and in relation to a crime of

violence after he robbed a sporting goods store at gunpoint. The guns at issue

were part of the loot and “were simply carried out of the store during the robbery

and were not armed with ammunition, nor brandished or used to threaten the store

owner or to otherwise effectuate the robbery.” Id. at 1189. The defendant

conceded he “carried” the stolen guns “during” the robbery. Id. at 1190. The

4
We did, however, find the evidence supported a separate charge of
carrying the gun “during and in relation to a drug conspiracy.” Id. at 1549.

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sole issue on appeal was whether the carrying of those firearms “was ‘in relation

to’ the robbery within the meaning of § 924(c)(1).” Id. at 1190. We held the

evidence insufficient, stating that “[a] firearm is carried ‘during and in relation

to’ the underlying crime, when the ‘defendant avail[s] himself of the weapon and

. . . the weapon play[s] an integral role in the [underlying offense].’” Id. (citation

omitted). We pointed out that merely carrying the gun during the crime is not

enough to meet the “during and in relation to” element unless the government

proves the defendant intended the weapon to be available for use during the

crime. Id.

In sum, our cases make clear that the “during and in relation to”

requirement of section 924(c) necessitates some direct connection between the

firearm and the drug offense. The legislative history of the 1998 amendments

directs that the “in furtherance” requirement for possession is an even higher

standard. Here, trial testimony established that Mr. Iiland possessed the firearm

found in his apartment. He kept a large quantity of drugs in a separate storage

unit he had rented. In addition, he admitted he had sold cocaine and he had been

surveilled doing so. However, the legislative history of the 1998 amendment and

our prior cases require that specific evidence establish the guns were possessed

“in furtherance of” the drug crime, and here there is no evidence in the record

connecting the gun to the drug transactions.

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 The facts here show only that a drug dealer possessed a gun. No evidence

demonstrates that his possession furthered, promoted or advanced his illegal drug

activity. There was no evidence that the gun and drugs were ever kept in the

same place or that Mr. Iiland ever kept the gun accessible when conducting drug

transactions. The fact that drug dealers in general often carry guns for protection

is insufficient to show possession in furtherance of drug activity in Mr. Iiland’s

particular case. Because Mr. Iiland’s possession of the gun was not shown to be

“in furtherance of” any criminal activity, his conviction under section 924(c)

cannot be sustained.

Accordingly, we AFFIRM Mr. Iiland’s convictions for possessing a

firearm after a former felony conviction, possessing cocaine with intent to

distribute, and maintaining a location for the purpose of distributing cocaine. We

REVERSE his conviction for possessing a firearm in furtherance of a drug

trafficking crime, and we REMAND for further proceedings in light of this

opinion.

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No. 00-5012, United States v. Iiland

Judge McWilliams concurring in part and dissenting in part.

I concur in parts I, II, and III of the majority opinion. I respectfully dissent

from part IV of the majority opinion.

We are here concerned with that part of 18 U.S.C.§924(c) which makes it

unlawful for a person to “possess” a firearm “in furtherance of a drug trafficking

crime.” The jury convicted Iiland of that particular crime and in my view the

evidence is sufficient to support such conviction.

Firearms were found in a search of Iiland’s residence. Iiland stored drugs in

a storage unit several miles from his residence. Iiland, using his own name,

rented the storage unit. The search of Iiland’s residence revealed on Iiland’s

person the key to the storage unit. Evidence clearly indicated that Iiland was a

central figure in a drug operation in the Tulsa area which continued for several

years. Also found in Iiland’s residence were portable scales, which, according to

testimony of an FBI agent, were of a type suitable for weighing drugs, strongly

suggesting, to me, that drugs were weighed in Iiland’s residence. All things

considered, the evidence, in my view, was such that the jury could reasonably

infer, as it did, that the firearm in question was possessed in furtherance of a drug

trafficking crime. Evidence of the “in furtherance of” issue, when the charge is

“possession” of a firearm, will, of course, almost always be circumstantial. By

denouncing the “possession” of a firearm “in furtherance of a drug trafficking
crime,” Congress intended to add to the other provisions in 18 U.S.C. § 924(c)

which make it unlawful to “use” or “carry” a firearm “during and in relation to a

drug trafficking crime.” The majority opinion, in my view, virtually negates the

“possession” prong of 924(c).

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