United States v. Sherman

United States Court of Appeals
For the First Circuit

No. 08-1385

UNITED STATES,

Appellee,

v.

ALTON SHERMAN,

Defendant, Appellant.

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF MAINE

[Hon. John A. Woodcock, Jr., U.S. District Judge]

Before

Lynch, Chief Judge,
Boudin and Stahl, Circuit Judges.

Virginia G. Villa for appellant.
Margaret D. McGaughey, Appellate Chief, with whom Paula D.
Silsby, United States Attorney, was on brief, for appellee.

December 22, 2008
 STAHL, Circuit Judge. Defendant-Appellant Alton Sherman

appeals his conviction for possession of a firearm in furtherance

of a drug trafficking crime, a violation of 18 U.S.C. §

924(c)(1)(A). He primarily argues the evidence was not sufficient

to support the verdict. He also objects to the manner in which the

Magistrate Judge conducted voir dire and to the jury instructions

given at the close of evidence. Finding no error, we affirm the

conviction.

I.

"We recite the facts in the light most favorable to the

verdict." United States v. Garcia-Alvarez, 541 F.3d 8, 11 (1st

Cir. 2008).

In May 2002, the Piscataquis County Sheriff's Office

began an investigation after discovering two plots of land used for

the development of marijuana gardens in a remote section of the

county. Law enforcement periodically surveyed the locations and

observed potting soil, peat moss, and other items consistent with

marijuana cultivation. On June 7, aerial photographs confirmed

that over 80 marijuana plants had been transplanted to a clearing

and enclosed with logs to form a raised bed. Also in early June,

officers came upon Richard Rodrigue driving a pickup truck near the

clearing and traced his truck to a camp on Schoodic Lake. Officers

later observed Rodrigue driving an ATV loaded with potting soil

-2-
near the clearing. Based on this information, the Sheriff's Office

obtained a warrant to search the camp.

On June 11, 2002, at 9:00 a.m., five law enforcement

officers executed the search warrant at the Schoodic Lake camp in

Brownville, Maine, occupied by Defendant-Appellant Sherman. Upon

entering the small house through unlocked front and back doors, the

officers immediately smelled marijuana and then discovered

approximately 500 immature marijuana plants, ranging from seedlings

to plants three to four feet in height. In the twelve-by-twelve-

foot living room, on top of a stereo speaker, they found an

unloaded .32 caliber handgun next to a loaded clip of ammunition.

The officers asked Sherman, who had been sleeping in a loft above

the living room, and Rodrigue, who had been sleeping in the living

room, whether additional guns were in the house. Sherman alerted

the officers to a lunch box on a dresser in the living room.

Inside, the officers found a 9-millimeter semiautomatic pistol with

two magazines and a loaded ammunition clip. The pistol's serial

number had been obliterated. Both guns were located within six to

eight feet of the center of the living room. In the loft, the

officers found a box of 9-millimeter ammunition next to the

mattress where Sherman had been sleeping. The officers had never

come across either guns or security devices at the two surveyed

locations in the woods, and at trial, Deputy Sheriff George

-3-
McCormick agreed that the principal protection of the drugs and

equipment was "just that they were in the middle of nowhere."

Sherman and Rodrigue were indicted on the following

counts: Count One -- conspiracy to possess marijuana with intent to

manufacture and distribute in violation of 21 U.S.C. § 841(a)(1);

Count Two -- the manufacture and possession with intent to

distribute marijuana in violation of 21 U.S.C. § 841(a)(1) and 18

U.S.C. § 2; Count Three -- possession of firearms in furtherance of

the drug trafficking crimes in violation of 18 U.S.C. §

924(c)(1)(A); and Count Four -- possession of a firearm with an

obliterated serial number in violation of 18 U.S.C. §§ 922(k),

924(a)(1). The district court granted mutual severance requests,

and in addition to agreeing to forfeiture of property under 21

U.S.C. § 853(p), Sherman pled guilty to all counts except Count

Three, possession of a firearm in furtherance of a drug trafficking

crime, choosing to go to trial on that issue.

During jury selection, the Magistrate Judge declined to

ask a list of voir dire questions advanced by Sherman. Instead,

for more than 90 minutes, the Magistrate Judge asked prospective

jurors about their knowledge of the criminal incident, associations

or relationships with the participants or witnesses, prior

involvement with the criminal justice system, contacts with law

enforcement officers or substance abusers, and feelings about

firearms. The Magistrate Judge also informed the venire pool of

-4-
the duty "to apply the law as given to you by the judge" and asked

whether any of the prospective jurors would be unable to follow the

district court judge's instructions " on various legal principles."

Four jurors were excused for cause, two because of connections to

or attitudes toward drug users, one for scheduling problems, and

one for connections to police officers and feelings about guns. At

sidebar, Sherman requested the Magistrate Judge additionally

inquire into the venire's ability to follow a list of seven rules

of the criminal justice system including the government's burden of

proof and the presumption of innocence. The Magistrate Judge

refused to read Sherman's list, stating, "I ask them if they're

willing to follow the law as instructed by the court . . . And I

leave it to the court . . . to instruct on the law," and later, "I

don't know where to draw the line. There are many legal principles

that I could instruct them on, and it's not my job here at voir

dire to instruct them on the ones you've picked out."

A two-day jury trial commenced in September 2007.1 At

the charge conference, the district court told the parties it

planned to list factors the jury could consider when reaching a

verdict including the type of weapons involved, their proximity to

the drugs, the legality or illegality of their possession, whether

they were loaded, and whether their location suggested means of

1
Sherman presented his defense through the cross-examination
of government witnesses. He did not testify or call witnesses on
his behalf.

-5-
defense or deterrence. The court stated that he would charge the

jury that mere presence of firearms was insufficient to convict

under § 924(c); instead, specific facts were needed tie Sherman to

the firearms and show they were possessed to advance criminal

activity. Planning to rely on United States v. Felton, 417 F.3d 97

(1st. Cir 2005), cert. denied, 547 U.S. 1048 (2006), the court

explained it would counsel the jury that the difference between

mere presence and illegal presence was a matter of degree and

circumstance.

Sherman requested an instruction that there was no

evidence that the guns were possessed to help grow or sell

marijuana despite their constructive possession at the camp. The

court declined the request, finding it effectively ordered a

judgment of acquittal.

Permitting the jury to read along, each having a copy of

the instructions, the court reminded the jurors to apply the law as

explained by the court and listed the constitutional protections

Sherman enjoyed as a criminal defendant. The court then explained

that to convict, the jury must find a "sufficient nexus" between

the guns and the criminal activity, see United States v. Robinson,

473 F.3d 387, 399 (1st Cir. 2007), and listed the previously

discussed factors that might assist the jury. The court explained,

"By referring to these factors, I am making no comment on the

evidence itself." At sidebar, Sherman objected to the long

-6-
explanation and again requested his submitted jury instruction.

After 90 minutes of deliberation, the jury returned a verdict of

guilty.2

II.

We consider the following issues on appeal: (1) whether

the evidence was sufficient to support the verdict, (2) whether the

Magistrate Judge appropriately conducted voir dire, and (3) whether

the district court's jury instructions on the main issue were

sound.

Different standards of review apply to these separate

inquiries. Because Sherman preserved his sufficiency challenge, we

review the evidence de novo, considering "all the evidence, direct

and circumstantial, in the light most favorable to the prosecution,

drawing all reasonable inferences consistent with the verdict, and

avoiding credibility judgments, to determine whether a rational

jury could have found the defendant guilty beyond a reasonable

doubt." United States v. Baltas, 236 F.3d 27, 35 (1st Cir. 2001)

(citations omitted). "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." United

States v. Grace, 367 F.3d 29, 34 (1st Cir. 2004) (quoting United

2
Sherman was sentenced to a mandatory minimum of 60 months on
Counts One and Two and a term of 60 months on Count Four, all to
run concurrently with each other, but consecutively to the
mandatory minimum of 60 months for Count Three, for a total of 120
months, or 10 years, imprisonment.

-7-
States v. Casas, 356 F.3d 104, 126 (1st Cir. 2004)). We review

voir dire questioning for abuse of discretion. United States v.

Bergodere, 40 F.3d 512, 517 (1st Cir. 1994). Finally, because

Sherman argues that the district court's choice of language in its

otherwise legally correct jury instruction tended to mislead the

jury, we look for abuse of discretion. United States v. Deppe, 509

F.3d 54, 58 (1st Cir. 2007).

A. Sufficiency of the Evidence

Title 18 U.S.C. § 924(c)(1)(A) requires a mandatory

consecutive sentence for "any person who, during and in relation to

any . . . drug trafficking crime . . . in furtherance of such

crime, possesses a firearm." Thus, to obtain a conviction, the

government must show the defendant committed a drug trafficking

crime and possessed a firearm during that time, and the possession

of the firearm was in furtherance of the crime. United States v.

Marin, 523 F.3d 24, 27 (1st Cir. 2008). Sherman pled guilty to the

drug trafficking offenses3 at the trial and admitted possession of

the firearms, leaving the government to "illustrate through

specific facts, which tie the defendant to the firearm[s], that the

3
A "drug trafficking crime" means any felony punishable under
the Controlled Substances Act, see 18 U.S.C. § 924(c)(1)(D)(2),
such as manufacturing marijuana, see 21 U.S.C. § 841(a)(1), or
conspiracy to manufacture marijuana, see 21 U.S.C. § 846. We also
have observed that possession with intent to distribute is a drug
trafficking crime. United States v. Luciano, 329 F.3d 1, 6 (1st
Cir. 2003).

-8-
firearm[s] [were] possessed to advance or promote the criminal

activity." Grace, 367 F.3d at 35 (citations omitted).

Because the mere presence of a firearm is insufficient

for a § 924(c) conviction, id. at 35, the government must

demonstrate "some sufficient nexus between the firearm and the drug

trafficking offense." Robinson, 473 F.3d at 399. In our case law,

we have counseled that a sufficient nexus exists where the firearm

protects drug stockpiles or the defendant's territory, Luciano, 329

F.3d at 6, enforces payment for the drugs, United States v. Garner,

338 F.3d 78, 81 (1st Cir. 2003), or guards the sales proceeds,

Marin, 523 F.3d at 28.

Noting that "[t]he 'in furtherance of' element does not

have a settled, inelastic, definition," Marin, 523 F.3d at 27

(citations omitted), and recognizing that the legal issue is not

clearly settled, Felton, 417 F.3d at 104, we have evaluated "in

furtherance of" evidence from objective and subjective standpoints,

Marin, 523 F.3d at 27 (citing Felton, 416 F.3d at 104-05).

Applying the objective analysis, this court has acknowledged a

number of factors that the trier of fact may consider including

"whether the firearm was loaded, whether the firearm was easily

accessible, the proximity of the firearm to the drugs, and the

surrounding circumstances." Robinson, 473 F.3d at 400; see also

Felton, 417 F.3d at 105 (type of weapon and legality of

possession); United States v. Ceballos-Torres, 218 F.3d 409, 414

-9-
(5th Cir. 2000) (type of drug activity conducted). Compare Marin,

523 F.3d at 28 (affirming conviction where gun was purchased from

another cocaine dealer and discovered with a defaced serial number

and a loaded spare clip in the same residence as 700 grams of

cocaine) with United States v. Delgado-Hernandez, 420 F.3d 16, 28

(1st Cir. 2005) (finding error in accepting guilty plea where no

drug activity was detected in the rental car where the gun was

found). We also have observed that "a sufficient nexus is more

readily found in cases where the firearm is in plain view and

accessible to the defendant." Robinson, 473 F.3d at 399.

Meanwhile, although there generally is no direct proof of

subjective intent, we have noted that subjective intent may be

inferred from the objective circumstances. Felton, 417 F.3d at 105

n.5. Thus, in Marin, we inferred subjective intent to possess a

weapon in furtherance of the drug trafficking crime from the

obliterated serial number, proximity to drugs, and other factors.

Marin, 523 F.3d at 28.

In the present case, the two firearms were accessible and

easily loadable, compare Grace, 367 F.3d at 31 (affirming

conviction where the jammed gun was kept under a bed in a drawer

that was blocked by a duffel bag, trash can, and box of books and

no ammunition was in the house), and in close proximity to over 500

marijuana plants. One firearm was in plain view, and the other was

-10-
illegal to possess, see Marin, 523 F.3d at 28.4 On the other hand,

the doors to the camp were unlocked, and there was no direct

evidence of persons coming to the camp to transact business,5

compare Grace, 367 F.3d at 36 (affirming conviction where the

defendant had not owned a firearm for a decade until two robberies

of her home from which she was selling drugs). Further, a

government witness acknowledged that the remote location provided

the principal protection for the drug enterprise. Recognizing that

the sufficiency issue is arguably close, we believe a jury

rationally could determine that the firearms furthered the drug

trafficking crimes by protecting the fruits of the conspiracy.

This conclusion respects our "very circumscribed role in gauging

the sufficiency of the evidentiary foundation upon which a criminal

conviction rests," United States v. Noah, 130 F.3d 490, 494 (1st

Cir. 1997), and our deference "to inferences formulated by the jury

in the light of its collective understanding of human behavior in

4
Sherman was under no obligation to offer an innocent
explanation of the firearms. See Grace, 367 F.3d at 32 (Grace
testified that she purchased the gun to protect herself and her
daughter). However, the jury was free to note that the firearms
lacked an obviously innocent purpose. For example, they were
neither hunting rifles nor unloaded antiques mounted to the wall.
See Ceballos-Torres, 218 F.3d at 415.
5
During the June 11 search, the officers did, however, find
leaves scattered on the floors and concluded that some marijuana
had been processed into "shake," slang for the leaves of the
marijuana plant that can be sold more cheaply than the plant's bud.
The jury heard this evidence and reasonably could have believed
Sherman had been selling shake.

-11-
the circumstances revealed by the evidence," United States v.

Passos-Paternina, 918 F.2d 979, 985 (1st Cir. 1990) (citations

omitted).

These facts differs from those in United States v. Ellis,

168 F.3d 558 (1st Cir. 1999), a case on which Sherman relied both

in his brief and during argument. In Ellis, we found an

insufficient nexus between roughly 65 marijuana plants discovered

in a detached garage and a shotgun and handgun hidden under a

bureau in Ellis's small bedroom where it was difficult to shift

furniture and thus the guns were not easily accessible. Id. at

560, 563. Sherman's small camp housed all 500 marijuana plants and

both handguns, neither of which was contained or concealed beneath

cumbersome objects.6

We find equally unpersuasive Sherman's argument that the

marijuana plants had not matured and therefore had no present value

to warrant firearm protection. We think it obvious the plants had

significant value; otherwise, Sherman would not have engaged in the

time-consuming and extensive operation to plant hundreds of them.

Based on the going rate for marijuana in Piscataquis County, the

eventual sale of the 500 plants when matured would have produced

between $350,000 and $437,500. As common sense dictates and just

6
We find Sherman's reference to the Supreme Court's recent
Ressam decision at best irrelevant to this case. United States v.
Ressam, 128 S. Ct. 1858 (2008).

-12-
as the school boy invests in a government savings bond, the wine

connoisseur purchases a bottle he or she believes will age well,

and the student finances a college education, the future value of

the marijuana plants, on a natural continuum toward maturity,

factors into their present value. This common sense approach leads

us to hold that the jury could rationally conclude the two

handguns, one illegally possessed, in close proximity to 500

marijuana plants furthered the drug trafficking crimes.

B. Voir Dire

Sherman's contention that the Magistrate Judge abused her

discretion by refusing to ask his list of propounded questions is

unavailing. Federal judges are "accorded ample discretion in

determining how best to conduct the voir dire." United States v.

Orlando-Figueroa, 229 F.3d 33, 44 (1st Cir. 2000) (quoting United

States v. Brown, 938 F.2d 1482, 1485 (1st Cir. 1991) (internal

quotation marks omitted). This discretion is "subject only to the

essential demands of fairness." Real v. Hogan, 828 F.2d 58, 62 (1st

Cir. 1987). Because the trial court observes the demeanor and

reactions of the prospective jurors, we review its determination of

jury impartiality with "special deference." United States v.

Moreno Morales, 815 F.2d 725, 733 (1st Cir. 1987). A court "need

not permit counsel to dominate the process, nor pose every voir

dire question requested by a litigant. It is more than enough if

the court covers the substance of the appropriate areas of concern

-13-
by framing its own questions in its own words." Real, 828 F.2d at

62 (citations omitted).

The function of voir dire is not to counsel prospective

jurors on the rules and procedures of criminal law but rather to

expose potential bias or prejudice. Morgan v. Illinois, 504 U.S.

719, 729 (1992); United States v. Noone, 913 F.2d 20, 32 (1st Cir.

1990); Schlinsky v. United States, 379 F.2d 735, 738 (1st Cir.

1967) ("[T]he purpose of the voir dire is to ascertain

disqualifications."). See also United States v. Anagnos, 853 F.2d

1, 4-5 (1st Cir. 1988) (court should ask whether veniremen will

give additional credence to government witness testimony); United

States v. Pappas, 639 F.2d 1, 5 (1st Cir. 1980) (same). Thus,

Sherman's reliance on the capital case Morgan v. Illinois, in which

the Court noted the constitutional requirement of jury impartiality

and required an inquiry into the venire's potential bias toward a

death sentence following a finding of guilt, is misplaced. 504

U.S. at 739. Sherman's proposed questions dealt not with potential

juror prejudice but with seven general principles of the criminal

justice system. The Magistrate Judge correctly deemed the list

beyond the purview of voir dire. The record reveals that the

Magistrate Judge asked a series of questions designed to identify

bias, excused those veniremen who demonstrated reluctance or an

inability to be impartial, and appropriately deferred an

-14-
explanation of constitutional protections for criminal defendants

to the district court's jury instructions.

C. Jury Instruction

Sherman argues that the instruction given was misleading

in its choice of language, but he does not contend that it

contained any errors of law. While we would review de novo a claim

that an instruction embodied an error of law, we review for abuse

of discretion the claim that a trial judge's particular choice of

language was confusing to the jury. Deppe, 509 F.3d at 58; United

States v. Nascimento, 491 F.3d 25, 33-34 (1st Cir. 2007).

The district court did not abuse its discretion when

instructing the jury on the issue of whether Sherman's possession

of the firearms was "in furtherance of" the drug trafficking

crimes. As we have noted, the "in furtherance of" language lacks

a settled definition, and we thus afford the trial judge

"substantial latitude as to whether and how to elaborate." Felton,

417 F.3d at 106. We consider the challenged language not in a

vacuum but "in light of the charge as a whole." Deppe, 509 F.3d at

59. Here, the district court described the jury's duties,

discussed Sherman's constitutional protections, and outlined the

statutory requirements for a § 924(c) conviction, including a

detailed instruction regarding the distinction between mere

presence and illegal presence. Explaining that the difference was

"a matter of degree and circumstances," Felton, 417 F.3d at 106

-15-
(citation omitted), the court relied on circuit case law to

elucidate factors the jury might consider.7 See Robinson, 473 F.3d

at 399-400; Felton, 417 F.3d at 105. See also United States v.

Montañez, 105 F.3d 36, 39 (1st Cir. 1997) (noting that proposed

instruction was drawn directly from another circuit case).

The court also appropriately denied Sherman's requested

instruction. "We have repeatedly recognized that a defendant is

entitled to an instruction on his theory of defense if sufficient

evidence is produced at trial to support the defense and the

proposed instruction correctly describes the applicable law." Id.

In Montañez, we found fault with an instruction that omitted

certain elements of an entrapment defense previously enumerated by

this circuit which fell in the defendant's favor. Id. at 39-40.

In contrast, Sherman's proposed charge did not reflect a legal

theory but rather, as the district court correctly surmised,

effectively ordered a judgment of acquittal. Sherman did not

present sufficient evidence at trial to support such a charge.

We discern no error in the district court's charge. "The

jury instruction at the end of the trial . . . was an entirely

7
We agree with Sherman that the district court could have
included as a factor for consideration the location where the guns
were found (here, a remote camp) but recognize that the court
instead chose to proceed along a strict recitation of factors this
circuit already has promulgated. This decision was not an abuse of
discretion. See United States v. Prigmore, 243 F.3d 1, 17 (1st
Cir. 2001) ("[A]ttempts to clarify inherently nebulous concepts can
do more harm than good.").

-16-
correct statement of the law." Noone, 913 F.2d at 33 (citing

United States v. Silvestri, 790 F.2d 186, 191-92 (1st Cir. 1986)).

III.

For the foregoing reasons, we affirm Sherman's conviction

under 18 U.S.C. § 924(c)(1)(A).

-17-