United States Court of Appeals
For the First Circuit
No. 03-1087
UNITED STATES OF AMERICA,
Appellee,
v.
OMAR GRACE,
Defendant-Appellant.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MAINE
[Hon. George Z. Singal, Chief U.S. District Judge]
Before
Lynch, Circuit Judge,
Stahl, Senior Circuit Judge,
and Lipez, Circuit Judge.
Cynthia A. Vincent, with whom Thomas and Thomas, Attys. was on
the brief, for Appellant.
Margaret D. McGaughey, Appellate Chief, with whom Paula D.
Silsby, U.S. Attorney, was on the brief, for Appellee.
May 7, 2004
LIPEZ, Circuit Judge. In this criminal appeal, we
conclude that the district court supportably found that the
defendant's possession of a firearm to protect her drugs and
proceeds of drug sales satisfied the nexus requirement in 18 U.S.C.
§ 924(c), which punishes possession of a firearm "in furtherance
of" a drug trafficking offense. We also resolve an unresolved
question about the consequences for a defendant making a
sufficiency of the evidence attack on appeal who, in a jury-waived
trial, failed to make a motion for a judgment of acquittal under
Fed. R. Crim P. 29.
I.
We draw the historical facts from the trial transcript
and present them in the light most favorable to the judgment of the
court in this jury-waived trial. United States v. Zenon-Rodriguez,
289 F.3d 28, 29 (1st Cir.), cert denied, 537 U.S. 886 (2002).
Defendant-appellant Omar Grace dealt Oyxcontin (oxycodone) and
cocaine from her single-family house in Exeter, Maine for
approximately twelve to eighteen months. She acquired the drugs
from a local drug courier named Harold Hawks, a longtime friend
named Michelle Landry, and members of a motorcycle gang called The
Iron Horsemen. These individuals delivered the drugs to Grace's
house and then returned some time later to pick up their share of
the proceeds. Grace conducted the sales in her kitchen and stored
the drugs and the proceeds in her computer room, which was
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separated from her bedroom with a curtain and connected to her
kitchen through a large, open doorway. She sold approximately
$1,000 to $4,000 worth of drugs per week in this manner.1
State and local police executed a search warrant at
Grace's home on November 14, 2001. The officers found cocaine,
Oxycontin, drug ledgers, and $2,585 in drug proceeds in her
computer room. They also found electronic scales and a .38 caliber
handgun in her bedroom. The handgun was found unloaded in a
plastic bag in a drawer under her bed. The drawer was blocked by
a duffel bag, a trash can, and a box of books. The police did not
find any ammunition in the house.
On February 12, 2002, a federal grand jury in Maine
returned a seven count indictment against Grace. The indictment
consisted of two counts of possession and distribution of
oxycodone, two counts of possession and distribution of cocaine,
one count of conspiracy to possess and distribute cocaine and
oxycodone, one count of possession of a firearm in furtherance of
a drug trafficking offense, and a civil forfeiture count that
required her to turn over at least $2,585 in drug proceeds. Grace
pled not guilty to all counts at her arraignment on March 8, 2002,
1
Grace testified that she averaged approximately $2,000 to
$3,000 in drug sales every week to two weeks but also noted that
she sold approximately $100,000 worth of drugs in the six months
prior to her arrest.
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and the district court released her on bond with several
conditions, including that she submit to random urine testing.
On August 21, 2002, the government moved to revoke
Grace's bail because two of her drug screens indicated that she had
used cocaine. Although she denied having used the drug and signed
an affidavit to that effect, the government presented laboratory
tests confirming one of the positive screens. The other screen was
determined to have been a false positive. Since Grace violated the
terms of her release and since it did not appear that the
government would be able to ensure that she did not continue to
violate those terms, the district court revoked her bail.
On October 7, 2002, the district court held a Rule 11
hearing where Grace pled guilty to the drug distribution charges
and stipulated to the civil forfeiture. She pled not guilty to the
firearm charge, waived her right to a jury trial, and was tried and
convicted by the district court on October 9, 2002.
The evidence presented to the court during Grace's trial
consisted primarily of the testimony of four individuals: two
police officers and one customs agent testified for the government,
and Grace alone testified for the defense. Detective William Flagg
of the Penobscot County Sheriff's Office, describing the search of
Grace's house, testified that he had not observed anything "of
value" in the house other than the drugs and drug proceeds. The
government introduced the recovered handgun as evidence during his
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testimony, and the parties stipulated that it "function[ed] as
designed."
Special Agent Ruth Duquette of the Maine Drug Enforcement
Administration, testifying about an interview she conducted with
Grace three days after the police searched her house, said that
Grace appeared tired but "fine" as she told Duquette about her drug
dealing activities and the handgun. Grace's home had been
burglarized twice. The thieves stole drugs in the first robbery
and $5,000 in collectible coins in the second robbery. Duquette
testified that Grace told her "that they had the firearm [in the
house] because they had been robbed two times." On cross-
examination, Grace's attorney asked Duquette: "So, in essence, she
told you that she purchased this firearm for protection because of
these prior break-ins; is that correct?" Duquette answered:
"Correct." Grace suspected that one of her drug sources, Harold
Hawks, committed the second robbery because Hawks' brother later
showed her one of the stolen coins.
Special Agent Phillip Riherd of the United States Customs
Service, who was also present at Grace's police interview,
reiterated Duquette's assertion that Grace said that thieves stole
drugs in the first robbery, and added that "[s]he said she had been
robbed on two occasions, and that's the reason why she had the
gun."
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Grace insisted in her testimony that her purchase of the
gun had nothing to do with her drug trafficking. Her husband was
rarely home and she was nervous about living alone "in the country"
with her sixteen year old daughter, especially after the two break-
ins. She purchased the gun from her friend and drug source,
Michelle Landry, for "protection." This was the first gun that she
had possessed since she got rid of her .22 hunting rifle eight to
ten years earlier. Grace kept the .38 under the bed because it
jammed soon after she purchased it when she and her friends shot a
box of ammunition in her friend's backyard. Although she asked
some other friends to help her to fix the gun and left it with a
repairman for approximately six weeks, she eventually concluded
that it was irreparable. Although Landry promised to return her
money, they could not "connect to get things swapped back around";
therefore, she stored the gun under the bed and never removed it.
She could not explain why the police were able to test fire the
weapon when they seized it. When the government asked her whether
she was as concerned about the need for protection at the time of
her arrest as she was when she purchased the gun, she replied:
"Yes [I] was."2
2
Both the government and Grace's attorney asked her why she
purchased the gun. When her attorney asked her whether she went
out and looked for a gun or just heard that Landry had one, Grace
said: "I think it was just we was talking about the fact that [my
husband] was gone, and Misty and I were home alone a lot, and that
we'd got broken into one night when I was working at the
convenience store in Corinna, and I started thinking about getting
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Although Grace denied that she told the police that
thieves stole drugs during the first robbery, she admitted that
they stole collectible coins and a strongbox containing her
important papers during the second robbery. She also admitted that
the only area that the thieves disturbed in the second robbery was
the area in which she stored her drugs and drug proceeds. She did
not report either robbery to the police.
After deliberating for approximately one hour, the
district court found Grace guilty of possession of a firearm in
furtherance of a drug crime. It sentenced her to 130 months of
imprisonment, seventy months for the drug crimes to which she pled
guilty and a mandatory minimum consecutive sentence of sixty months
for the firearm conviction.
a gun for protection where Don was gone and we was home alone so
much." Later, Grace and her attorney engaged in a colloquy
regarding the connection between the break-ins and the gun:
Attorney: "Now you've talked about getting [the gun] for
self-protection purposes?"
Grace: Yes.
Attorney: Because of prior break-ins?
Grace: Yes.
The government also asked her about the circumstances
surrounding her purchase of the gun:
Government: Ms. Grace, it's fair to say, and if I
understand you correct, is it not, that the reason you
got the gun was for protection?
Grace: Yes.
Government: That's the sole reason you got the gun?
Grace: Yes.
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II.
Grace claims that the government failed to present
sufficient evidence to prove that there was a nexus between her
firearm and her drug trafficking. The government claims that since
she failed to raise this sufficiency issue below with a Fed. R.
Crim. P. 29 motion,3 we should review her claim only for "clear and
gross injustice." Grace responds that she did not have to make
such a motion for acquittal during a bench trial to preserve the
normal de novo standard of review for sufficiency of the evidence
claims, often stated as follows: "[W]hether, after viewing the
evidence in the light most favorable to the prosecution, any
rational trier of fact could have found the essential elements of
the crime beyond a reasonable doubt." United States v. Casas, 356
F.3d 104, 126 (1st Cir. 2004) (internal quotation marks omitted).
We must resolve this conflict before we consider the substance of
Grace's claim.
3
Rule 29 provides, in pertinent part:
After the government closes its evidence or after the
close of all the evidence, the court on the defendant's
motion must enter a judgment of acquittal of any offense
for which the evidence is insufficient to sustain a
conviction. The court may on its own consider whether the
evidence is insufficient to sustain a conviction. If the
court denies a motion for a judgment of acquittal at the
close of the government's evidence, the defendant may
offer evidence without having reserved the right to do
so.
Fed. R. Crim. P. 29(a).
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A. Standard of Review
The government states that "neither [its] research nor
Grace's reveals any authority from this circuit that decides the
issue of whether a Rule 29 motion is also required to preserve a
sufficiency-of-the-evidence attack on appeal from a bench trial."
We agree that we have not squarely addressed this issue before.
The government argues that we should apply a deferential standard
of review rather than de novo review in these circumstances.
Rule 29 protects a defendant "against an improper or
irrational verdict of the jury. In other words, Rule 29 takes
cognizance of the reality that jurors may not always be capable of
applying strictly the instructions of the court, or of basing their
verdict entirely on the evidence developed at the trial." Moore's
Federal Practice § 629.02[4] (3d ed. 2002); see also 2A Charles
Allen Wright, Arthur R. Miller & Edward H. Cooper, Federal Practice
& Procedure § 461 (2000) (stating that Rule 29 vests judges with
the responsibility of directing a not guilty verdict when the facts
are so clear as to create a "risk that a jury may capriciously find
[the defendant] guilty though there is no legally sufficient
evidence of guilt"). It is odd to suggest that trial judges must
be given the opportunity with a Rule 29 motion to protect
themselves from their own capriciousness.
As the commentators note, "Rule 29 has no real
application when a case is tried by the court since the plea of not
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guilty asks the court for a judgment of acquittal." Moore's
Federal Practice § 629.02[3] (3d ed. 2002). A plea of not guilty
is the "functional equivalent" of a Rule 29 motion in a bench
trial. United States v. Atkinson, 990 F.2d 501, 503 (9th Cir.
1993) (en banc); see also Hall v. United States, 286 F.2d 676, 677
(5th Cir. 1961) ("The plea of not guilty asks the court for a
judgment of acquittal, and a motion to the same end is not
necessary."). The district court must conduct the same analysis of
the law and the evidence whether it evaluates a motion for
acquittal under Rule 29 or adjudicates a not guilty plea. Compare
Fed. R. Crim P. 29(a) (“[T]he court . . . must enter a judgment of
acquittal of any offense for which the evidence is insufficient to
sustain a conviction.”), with In re Winship, 397 U.S. 358, 364
(1970) (“[T]he Due Process Clause protects the accused against
conviction except upon proof beyond a reasonable doubt of every
fact necessary to constitute the crime with which he is charged.”).
Therefore, we join the circuits that have ruled that a
defendant does not have to make a Rule 29 motion in a bench trial
to preserve the usual standard of review for a sufficiency of the
evidence claim on appeal. See, e.g., United States v. Hogan, 89
F.3d 403, 404 (7th Cir. 1996); Atkinson, 990 F.2d at 503 (9th Cir.
1993); United States v. Besase, 373 F.2d 120, 121 (6th Cir. 1967);
United States v. Whitlock, 663 F.2d 1094, 1097 n.24 (D.C. Cir.
1980) (opinion of Robinson, J.); Hall, 286 F.2d at 677.
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Accordingly, we will review Grace's claim de novo, evaluating
"whether, after viewing the evidence in the light most favorable to
the prosecution, any rational trier of fact could have found the
essential elements of the crime beyond a reasonable doubt. We draw
all reasonable evidentiary inferences in harmony with the verdict
and resolve all issues of credibility in the light most favorable
to the government." Casas, 356 F.3d at 126 (internal quotation
marks and citations omitted).
B. Grace's Sufficiency of the Evidence Claim
In 1998, Congress amended 18 U.S.C. § 924(c)(1)(A) to
preserve a mandatory minimum consecutive sentence 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, . . . in furtherance of any such
crime, possesses a firearm . . . ." Pub. L. 105-386, 112 Stat.
3469 (1998) (codified at 18 U.S.C. § 924(c)(1)(A)). This amendment
responded to Bailey v. United States, 516 U.S. 137, 150 (1995), in
which the Supreme Court held that under the prior version of the
statute, "the Government must show that the defendant actively
employed the firearm during and in relation to the predicate
crime."4 The current version of the statute, therefore, does not
4
The version of the statute that the Court evaluated in Bailey
established a mandatory minimum five year consecutive sentence for
any person who "during and in relation to any . . . drug
trafficking crime . . . for which he may be prosecuted in a court
of the United States, uses or carries a firearm." 18 U.S.C.
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require defendants to have actively employed the firearm in
furtherance of the drug crime; however, they must have possessed
the gun to further the drug crime:
The 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.
United States v. Lawrence, 308 F.3d 623, 630 (6th Cir. 2002)
(quoting H.R. Rep. No. 105-344, at 12); see also United States v.
Carlos Cruz, 352 F.3d 499, 509 (1st Cir. 2003) ("[M]erely
determining that [the defendant] was in possession of a sidearm is
not enough to support the conviction; we must also consider whether
the weapon was possessed 'in furtherance of . . . a
drug-trafficking crime.'") (emphasis in original).
In United States v. Luciano, 329 F.3d 1 (1st Cir. 2003),
we concluded that a defendant's possession of a firearm to protect
drugs and drug proceeds provides the required nexus between the
drugs and the firearm. We relied on evidence that the defendant
stored firearms in a crawlspace with heroin to conclude that he
used those firearms to protect the drugs, and that this evidence
§924(c)(1) (1997) (emphasis added).
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provided a sufficient basis to trigger section 924 liability. Id.
at 6. Similarly, in United States v. Garner, 338 F.3d 78 (1st
Cir.), cert denied, 124 S.Ct. 948 (2003), a case in which the
police found drugs and a gun hidden in a hole in the defendant's
basement wall, we concluded:
When guns and drugs are found together and a
defendant has been convicted of possession
with intent to distribute, the gun, whether
kept for protection from robbery of drug-sale
proceeds, or to enforce payment for drugs, may
reasonably be considered to be possessed 'in
furtherance of' an ongoing drug-trafficking
crime.
Id. at 81.5
Although this case is closer than Luciano and Garner, we
conclude that there was sufficient evidence to establish beyond a
reasonable doubt that Grace possessed the .38 caliber firearm to
protect her drug supply and the proceeds of her drug sales. Grace
had not owned a firearm for approximately a decade prior to her
purchase of the .38, which she purchased after the room in which
she stored her drugs was burglarized. In light of the testimony of
5
Luciano cited United States v. Ceballos-Torres, 218 F.3d 409,
413-15 (5th Cir. 2000), which noted that the 'in furtherance of'
language in section 924(c) protects drug dealers whose only
firearms are "unloaded antiques mounted on the wall" or those who
keep a pistol for target shooting or hunting. Id. at 415. After
noting that the gun in that case was loaded, accessible, and stored
in an apartment with drugs and that the defendant acquired the gun
illegally, the Ceballos court concluded that the gun protected the
defendant's drugs and money against robbery and, therefore, that
the defendant's possession of the gun furthered his drug
trafficking. Id.
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Agent Duquette, the court was entitled to disbelieve Grace's claim
at trial that no drugs were stolen during the first robbery, and to
conclude that she purchased the handgun specifically to prevent
such robberies of drugs and drug proceeds in the future. Indeed,
Grace had good reason to fear such robberies. She routinely kept
thousands of dollars of cash and drugs in her computer room and
sold drugs in the adjoining room. Furthermore, she suspected that
one of her main drug suppliers was responsible for at least one of
the robberies.
To counter the conclusion that she possessed the gun to
protect her drugs and drug proceeds, Grace derides as "fanciful"
the notion that she could have used an unloaded gun to protect
herself and her drugs. Unfortunately for Grace, our own precedents
and those of other circuits demonstrate that a gun does not even
have to be operational, let alone loaded, to qualify as a firearm
for section 924 purposes. See, e.g., United States v. Kirvan 997
F.2d 963, 966 (1st Cir. 1993) ("It is common ground that the gun
need not be proved to be loaded or operable in order to convict .
. . ."); United States v. Taylor, 54 F.3d 967, 975 (1st Cir. 1995)
(relying on Kirvan to state that a firearm does not need to be
loaded or operational and concluding that "the prosecution
satisfies its burden simply by showing that the gun is a gun"); see
also United States v. Hunter, 101 F.3d 82, 85 (9th Cir. 1996)
("Congress intended the ten-year penalty to apply to unloaded and
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inoperable semiautomatic weapons as well."); United States v.
Coburn, 876 F.2d 372, 375 (5th Cir. 1989) ("The fact that a firearm
is 'unloaded' or 'inoperable' does not insulate the defendant from
the reach of section 924(c)."). Even an unloaded firearm can
intimidate others and help to further the defendant's drug-related
activities. See Hunter, 101 F.3d at 86 ("[I]ntimidation will be
caused by a semiautomatic assault weapon whether the gun is loaded
and operable or not."); United States v. Martinez 912 F.2d 419,
421 (10th Cir. 1990) ("Unloaded firearms have the same effect on
victims and observers when pointed or displayed, tending to
intimidate, and also increase the risk of violence by others who
may respond to the perceived danger represented by the (presumably)
loaded gun."). Although the unloaded gun is arguably helpful
evidence for Grace, see, e.g., Lawrence, 308 F.3d at 630-31
(considering the fact that the defendant's firearm was unloaded as
one piece of evidence demonstrating that the defendant did not
possess the gun in furtherance of a drug trafficking crime), it did
not require the judge to acquit her.6
6
Grace also argues that even if she did purchase the gun to
protect her drugs and drug proceeds, "the factual circumstances at
the time of her arrest months later demonstrate that any intent she
may have had no longer existed and in fact was abandoned." We do
not evaluate the legal efficacy of this "abandoned intent" argument
because the court had ample grounds to conclude, as we have already
noted, that she possessed the gun at the time of her arrest to
protect her drugs and drug proceeds.
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III.
Grace claims that she was denied effective assistance of
counsel at the sentencing hearing because her attorney failed to
address adequately a question from the court about her drug use
while she was out on bail and that, as a result, she did not
receive a reduction in her sentence for acceptance of
responsibility. The district court asked at the sentencing
hearing: "What relevance to my determination is it that during the
time she was on release that she used drugs? How does that impact
on remorse and acceptance of responsibility in this particular
case?" Her attorney answered: "That is a factor the court can
consider, and we would say that's one factor of many factors. And
when the court puts all the factors into the balance, that that
alone should not be sufficient to deny her acceptance of
responsibility, but certainly the court can consider that." Grace
characterizes that response as "vague" and "non responsive" and
says that there is a reasonable probability that the court would
have granted her a sentencing reduction if her counsel had been
more forthcoming.
"The rule in this circuit is that a fact-specific claim
of ineffective legal assistance cannot be raised initially on
direct review of a criminal conviction, but must originally be
presented to the district court." United States v. Osorio-Pena,
247 F.3d 14, 19 (1st Cir. 2001) (internal quotation marks omitted).
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This rule "allow[s] for full development of the record needed to
place the adequacy of a defendant's representation into proper
perspective." Id. at 19-20 (internal quotation marks and citation
omitted). We will deviate from this rule "where the critical facts
are not genuinely in dispute and the record is sufficiently
developed to allow reasoned consideration of an ineffective
assistance claim." United States v. Natanel, 938 F.2d 302, 309
(1st Cir. 1991).
There is no such record in this appeal from the
defendant's sentence. To establish an ineffectiveness of counsel
claim, Grace must show that her trial counsel's representation fell
below an objective standard of reasonableness, and that but for her
counsel's errors, there is a "reasonable probability" that she
would have received the requested reduction in her sentence. See
Strickland v. Washington, 466 U.S. 668, 687-88 & 694 (1984); Epsom
v. Hall, 330 F.3d 49, 53 (1st Cir. 2003) ("[An] incompetent counsel
[claim] requires two elements: first, trial counsel's performance
must be deficient in some way sufficiently substantial to deny him
effective representation; and second, that deficiency must have
resulted in prejudice, defined as a 'reasonable probability that,
but for counsel's unprofessional errors, the result . . . would
have been different.'") (quoting Strickland, 466 U.S. at 687); see
also Glover v. United States, 531 U.S. 198, 202-04 (2001) (applying
Strickland in the sentencing context); Robinson v. Ignacio, 360
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F.3d 1044, 1055 (9th Cir. 2004) (holding that although Strickland
dealt with the denial of counsel at trial, there is no reason not
to extend it to the sentencing context, since sentencing is a
"critical stage of the criminal proceeding."). We cannot determine
from this record why Grace's trial counsel gave the answer that he
gave nor whether his strategy, if any, was erroneous. Moreover, we
cannot say whether there is a reasonable probability that Grace
could have otherwise received the reduction. A sentencing court
must consider many factors to determine whether a defendant should
receive a reduction for acceptance of responsibility. See U.S.S.G.
§ 3E1.1 cmt. n.1. Having confronted the defendant in person, the
district court is in a "unique position" to do so. Id. § 3E1.1,
cmt. n.5. We simply cannot review Grace's ineffectiveness of
counsel claim on the record as it currently stands. See United
States v. Hughes, 330 F.3d 1068, 1068 (8th Cir. 2003).
Affirmed.
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