United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued March 22, 2002 Decided May 17, 2002
No. 01-3063
United States of America,
Appellee
v.
Donell Wahl,
Appellant
Appeal from the United States District Court
for the District of Columbia
(No. 00cr00226-01)
Edward C. Sussman, appointed by the court, argued the
cause and filed the briefs for appellant.
Rhonda T. Redwood, Assistant U.S. Attorney, argued the
cause for appellee. With her on the brief were Roscoe C.
Howard, Jr., U.S. Attorney, John R. Fisher and Thomas J.
Tourish, Jr., Assistant U.S. Attorneys.
Before Sentelle and Rogers, Circuit Judges, and
Williams, Senior Circuit Judge.
Opinion for the Court filed by Circuit Judge Sentelle.
Sentelle, Circuit Judge: A jury convicted Donell Wahl of
one count of possession with intent to distribute in excess of
five grams of cocaine base, in violation of 21 U.S.C.
ss 841(a)(1) and 841(b)(1)(B)(iii); one count of unlawful pos-
session of a firearm by a convicted felon, in violation of 18
U.S.C. s 922(g); and one count of using, carrying and pos-
sessing a firearm during a drug trafficking offense, in viola-
tion of 18 U.S.C. s 924(c)(1). Wahl appeals, arguing that the
government produced insufficient evidence to support find-
ings that he constructively possessed a firearm and that he
possessed the firearm in furtherance of a drug trafficking
offense. Because Wahl failed to preserve his section 922(g)
claim, and because the government produced sufficient evi-
dence to support Wahl's 924(c)(1) conviction, we affirm.
I. Facts
On January 13, 2000, Metropolitan Police Department offi-
cers executed a search warrant at Donell Wahl's home in
Northeast Washington, D.C. The police arrived at Wahl's
apartment, knocked on the door and announced their pres-
ence. One of the officers then heard a person on the inside of
the house move away from the door. At that time, the police
forced open Wahl's door and entered his apartment.
Once inside, officers found Wahl standing with his left hand
inside the videotape slot of a videocassette recorder ("VCR")
housed in an entertainment center. The entertainment cen-
ter was located approximately ten to twelve feet from the
front door. One officer observed a handgun lying in plain
view on top of the entertainment center. The police officers
handcuffed Wahl and conducted a search of his apartment.
From the main room in the apartment they recovered a
9-mm, loaded handgun from the top shelf of the entertain-
ment center and a plastic bag protruding from the VCR's
videotape slot. This bag contained forty-seven smaller zi-
plock bags which held a total of 5.6 grams of cocaine base.
Police also recovered a small sum of money from in front of
the VCR. Upon searching the rest of the apartment, they
found two other occupants: a woman in the bedroom and a
man in the bathroom. From the bedroom, police recovered
.38 caliber ammunition, shell casings, marijuana, and $93 in
cash. A search of the second man turned up a single ziplock
bag of cocaine base. In the kitchen, officers found a paper
bag containing two packs of empty ziplock bags.
II. Proceedings Below
Wahl was charged with one count of possession with intent
to distribute in excess of five grams of cocaine base, in
violation of 21 U.S.C. ss 841(a)(1) and 841(b)(1)(B)(iii); one
count of unlawful possession of a firearm by a convicted felon,
in violation of 18 U.S.C. s 922(g); and one count of using,
carrying and possessing a firearm during a drug trafficking
offense, in violation of 18 U.S.C. s 924(c)(1). At trial, the
parties stipulated to the facts that Wahl was previously
convicted of a felony, the weapon recovered from Wahl's
apartment was a 9-mm firearm, the firearm and ammunition
were transported in interstate commerce, and no fingerprints
were recovered from the firearm.
After the government rested its case, Wahl moved for a
judgment of acquittal on all charges. See Fed. R. Crim. P.
29. The trial court took the motion under advisement as it
related to the section 924(c)(1) charge, and denied it with
respect to the remaining charges. See Fed. R. Crim. P.
29(b). Wahl then presented his evidence, which consisted of
two witnesses who testified as to reputation in the community
for truthfulness of one of the arresting officers. A jury
convicted Wahl on all counts and thereafter the judge denied
Wahl's reserved motion for judgment of acquittal on the
section 924(c)(1) charge. This appeal followed.
III. Analysis
A. Waiver
As an initial matter, we address the government's conten-
tion that Wahl waived his insufficiency of the evidence argu-
ment on the section 924(c)(1) charge because he failed to
renew his Rule 29 motion at the close of all the evidence.
The government relies on our decision in United States v.
Sherod, 960 F.2d 1075, 1077 (D.C. Cir. 1992), wherein we held
that if a defendant offers evidence in his own defense after a
judge denies his Rule 29 motion, then the defendant waives
his objection to the denial (absent manifest injustice) unless
he renews his motion at the close of all the evidence.
We reject the government's waiver argument. The district
court did not immediately deny Wahl's motion as was the case
in Sherod, but reserved a decision on Wahl's motion under a
1994 amendment to Rule 29(b). Rule 29(b) as amended
allows the district court to defer a motion for judgment of
acquittal brought at the end of the government's case in order
to "remove the dilemma in those close cases in which the
court would feel pressured into making an immediate, and
possibly erroneous, decision." United States v. Byrne, 203
F.3d 671, 675 (9th Cir. 2001) (internal quotation omitted).
Specifically, Rule 29(b) provides that a district court
may reserve decision on a motion for judgment of acquit-
tal, proceed with the trial (where the motion is made
before the close of all the evidence), submit the case to
the jury and decide the motion either before the jury
returns a verdict or after it returns a verdict of guilty or
is discharged without having returned a verdict. If the
court reserves decision, it must decide the motion on the
basis of the evidence at the time the ruling was reserved.
Fed. R. Crim. P. 29(b). Unlike Rule 29(a), under which the
district court either grants or denies a motion for judgment of
acquittal and then the case proceeds accordingly, Rule 29(b),
as amended, allows the court to reserve the actual ruling until
after the case is submitted to the jury. Therefore, the
government's reliance on our decision in Sherod is misplaced
as it pertains to his section 924(c)(1) appeal. Of course,
Wahl's section 922(g) motion, having been denied by the
district court, is unavailable for review given Wahl's failure to
renew that motion at the close of all the evidence, and given
no risk of manifest injustice occurring as a result of our
decision to preclude review.
Obedient to Rule 29(b), the district court, having reserved
ruling on Wahl's motion, took up the motion after the jury
returned its verdict even though Wahl never renewed the
motion as would be required under Rule 29(a). This case is
therefore distinguishable from Rule 29 appeals, such as Sher-
od, in which a defendant has failed to renew his motion and,
consequently, the district court never issued a ruling on the
motion. In this case the district court actually ruled on the
Rule 29 motion. Thus we are not deciding whether a waiver
occurs when a defendant fails to renew a reserved motion at
the close of all the evidence and the district court does not
rule. Cf. Sherod, 960 F.2d at 1077. We are instead deciding
for the first time whether an appellate court can review a
district court's reserved Rule 29(b) decision if the defendant
fails to renew the motion but the district court nonetheless
takes up the motion and decides it on its own accord.
The Federal Rules are silent as to whether a reserved
motion must be renewed. See Fed. R. Crim. P. 29. For this
reason, we see no basis for penalizing a defendant who
appears before an efficient district court judge who returns to
a reserved motion without prompting and enters a ruling.
We therefore hold that when a defendant moves for judgment
of acquittal at the close of the government's case and the
court reserves ruling until after the case is submitted to the
jury under Rule 29(b), and when the court does, in fact, rule
on that motion absent a renewal of that motion at the close of
all evidence by the defendant, the defendant is not required
to take any additional procedural steps to preserve the issue
for appellate review.
We recognize Rule 29(b)'s instruction that any ruling must
be decided on the basis of the evidence presented at the time
the ruling was reserved. The district court in this case
reserved Wahl's motion at the close of the government's case.
Any ruling on that motion, then, should have been made
solely on the evidence offered by the government. We see
nothing to suggest that the district court did otherwise. In
sum, we hold that Wahl's sufficiency of the evidence argu-
ment is subject to appellate review as to the possession in
furtherance charge.
B. Sufficiency of the Evidence
Although we hold that Wahl's challenge to the sufficiency of
the evidence is properly before us as to the section 924(c)(1)
charge, upon review of the record we conclude that the
challenge fails on the merits. In considering a defendant's
challenge to the sufficiency of the evidence, we review the
evidence of record de novo, considering that evidence in the
light most favorable to the government, and affirm a guilty
verdict where "any rational trier of fact could have found the
essential elements of the crime beyond a reasonable doubt."
Jackson v. Virginia, 443 U.S. 307, 319 (1979) (emphasis in
original). The evidence in this case survives that review.
Prior to 1998, a defendant violated 18 U.S.C. s 924(c)(1)
only if he "use[d] or carrie[d] a firearm" during a crime of
violence or drug trafficking. 18 U.S.C. s 924(c)(1) (1994). In
applying this statute, courts have employed various tests to
evaluate whether a defendant "used" a firearm during a drug
trafficking crime. We previously applied an "accessibility and
proximity" test, and held that a defendant violated section
924(c)(1) if he "puts or keeps the gun in a particular place
from which one (or one's agent) can gain access to it if and
when needed to facilitate a drug crime." See United States v.
Bailey, 36 F.3d 106, 115 (D.C. Cir. 1994) (en banc). The
Supreme Court reversed our decision, requiring instead evi-
dence "sufficient to show an active employment of the firearm
by the defendant." Bailey v. United States, 516 U.S. 137, 143
(1995) (emphasis in original). The Court clarified that a
defendant does not violate section 924(c)(1) "merely for stor-
ing a weapon near drugs or drug proceeds." Id. at 149.
Following the Supreme Court's decision in Bailey, Con-
gress amended section 924 to broaden its reach. Section
924(c)(1)(A) now imposes a mandatory five-year consecutive
penalty for "any person who, during and in relation to any
crime of violence or drug trafficking crime ... for which the
person may be prosecuted in a court of the United States,
uses or carries a firearm, or who, in furtherance of any such
crime, possesses a firearm." 18 U.S.C. s 924(c)(1)(A) (2000)
(emphasis added). Wahl argues correctly that even under
the amended statute, the mere presence of a firearm at the
scene of drug trafficking is insufficient to support a conviction
under section 924(c)(1). Wahl continues that because the
government failed to produce any evidence suggesting that
the presence of the gun in the apartment furthered his drug
trafficking crime, his conviction was not supported by suffi-
cient evidence.
In order to uphold a conviction for violation of 18 U.S.C.
s 924(c)(1), we must first determine whether the government
has offered sufficient evidence to support a finding that the
defendant knowingly possessed a firearm or ammunition. Cf.
United States v. Gilliam, 167 F.3d 628, 639 (D.C. Cir. 1999).
The prosecution offered ample evidence to support a finding
that Wahl possessed the firearm recovered from his apart-
ment. While there was no evidence placing the firearm in
Wahl's actual possession, possession may be either actual or
constructive. Constructive possession is established with evi-
dence supporting a finding that the defendant "had the ability
to exercise knowing 'dominion and control' over the items in
question." United States v. Morris, 977 F.2d 617, 619 (D.C.
Cir. 1992) (quoting United States v. Hernandez, 780 F.2d 113,
116 (D.C. Cir. 1986)). The evidence before us supports such a
finding. First, the firearm was found on top of the entertain-
ment center immediately in front of Wahl when the police
first entered his apartment, apparently within his reach.
Second, "[a] jury is entitled to infer that a person exercises
constructive possession over items found in his home." Id. at
620 (citation omitted). While that inference may not alone
compel a conclusion that Wahl had constructive possession,
given that the firearm was recovered from Wahl's apartment
in close proximity to him, the jury had sufficient evidence to
support a finding of possession. What remains is to deter-
mine if there was sufficient evidence to support a finding that
Wahl's possession was "in furtherance of" a drug trafficking
crime.
Although this is our first occasion to construe the language
of the statutory amendment "in furtherance of" a drug traf-
ficking crime, other circuits have addressed the issue, and we
find their reasoning useful in our analysis. In United States
v. Ceballos-Torres, 218 F.3d 409, 414 (5th Cir. 2000), the Fifth
Circuit identified several factors as helpful in "determin[ing]
whether a particular defendant's possession furthers, ad-
vances, or helps forward a drug trafficking offense...." Id.
at 414. These include: the type of drug activity conducted;
accessibility of the firearm; type of firearm; whether the
firearm is stolen; whether the possession of the firearm is
legal or illegal; whether the firearm is loaded; the proximity
of the firearm to the drugs or drug profits; and the time and
circumstances under which the firearm is found. Id. at 414-
15. In Ceballos-Torres, the court held that evidence that the
police recovered an illegally possessed, loaded, and easily
accessible firearm from the defendant's apartment along with
a substantial amount of drugs and money, "reasonably sup-
port[ed] a finding that [the defendant's] gun protected his
drugs and money against robbery" and therefore upheld a
jury verdict that the defendant was guilty of possession of a
firearm in furtherance of drug trafficking. Id. at 415.
In United States v. Mackey, 265 F.3d 457 (6th Cir. 2001),
the Sixth Circuit held that "furtherance" requires that "the
weapon must promote or facilitate the crime." Id. at 460-61.
The court then offered a nonexclusive list of factors helpful to
a court distinguishing between "possession in furtherance of a
crime" and "innocent possession." Id. at 462. The court held
it essential that the firearm be "strategically located so that it
is quickly and easily available for use," id., and included as
relevant factors
whether the gun was loaded, the type of weapon, the
legality of its possession, the type of drug activity con-
ducted, and the time and circumstances under which the
firearm was found.
Id. (citing Ceballos-Torres, 218 F.3d at 414-15). We agree
with the Fifth and Sixth Circuits that the enumerated factors
are useful, and we have applied them in evaluating the
sufficiency of the evidence before us.
The firearm was on the top shelf of the entertainment
center, in front of which Wahl was standing when the police
entered. The gun was loaded with nine rounds in the maga-
zine and one in the chamber. The gun was also found in close
proximity to 5.6 grams of cocaine base and a small amount of
cash. The fact that Wahl was found in possession of 47 bags
of cocaine and another person was found in the bathroom
with one bag of cocaine leads to the reasonable inference that
the gun was recovered shortly after a drug transaction had
taken place. Finally, Wahl possessed the gun illegally. Tak-
en together, this evidence could lead a reasonable jury to
infer that the firearm recovered from Wahl's apartment
provided a defense or deterrent in furtherance of the drug
trafficking for which Wahl was arrested. See Ceballos-
Torres, 218 F.3d at 415; see also Mackey, 265 F.3d at 462-63.
We therefore conclude that the government introduced suffi-
cient evidence to support Wahl's conviction for possession of a
firearm in furtherance of drug trafficking.
Wahl also sets forth two additional arguments concerning
evidence produced at trial and the scope of his closing argu-
ment. After careful consideration, we find these additional
arguments are not well taken and do not merit further
discussion.
IV. Conclusion
For the reasons stated, Wahl's conviction on all charges is
affirmed.