NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
No. 09-1564
UNITED STATES OF AMERICA
v.
CLARENCE MITCHELL,
Appellant.
On Appeal from the United States District Court
for the District of Delaware
(D.C. No. 1-08-cr-00023-001)
District Judge: Honorable Sue L. Robinson
Submitted Under Third Circuit L.A.R. 34.1(a),
October 30, 2009
Before: SLOVITER, FUENTES, and HARDIMAN, Circuit Judges.
(Opinion Filed: October 30, 2009)
OPINION OF THE COURT
FUENTES, Circuit Judge:
Appellant Clarence Mitchell was convicted of, inter alia, possession with intent to
distribute cocaine and possession of a firearm in furtherance of drug trafficking. Before
his trial, he filed a motion to suppress evidence recovered during a search of North
Franklin Place in Wilmington, Delaware, a residence owned by his wife, and the
statements that he made to police following the search. Upon review of the affidavit and
application for a search warrant, the District Court denied the motion, holding that the
detectives acted in good faith in relying on the warrant. At trial, following the close of
the government’s evidence, Mitchell moved for a judgment of acquittal on the possession
of a firearm in furtherance of drug trafficking count. The District Court reserved
judgment, and the jury subsequently returned a guilty verdict. After the verdict, Mitchell
renewed his motion for acquittal, which was denied by the District Court. On appeal,
Mitchell challenges the denial of his suppression and acquittal motions. For the reasons
that follow, we will affirm the District Court.1
I.
Because we write primarily for the parties, we only discuss the facts and
1
The District Court had jurisdiction pursuant to 18 U.S.C. § 3231. This Court has
jurisdiction pursuant to 28 U.S.C. § 1291. “[W]hen a district court, in reviewing a
magistrate’s determination of probable cause, bases its probable cause ruling on facts
contained in an affidavit, we exercise plenary review over the district court’s decision.”
United States v. Ritter, 416 F.3d 256, 261 (3d Cir. 2005) (citation omitted). Both our
court and the district court review the magistrate’s initial probable cause determination
deferentially. Id. Our review of a district court’s conclusion regarding the applicability
of the good faith exception is plenary. United States v. Hodge, 246 F.3d 301, 307 (3d
Cir. 2001) (citations omitted). “We exercise plenary review over a district court’s grant
or denial of a motion for acquittal based on the sufficiency of the evidence, applying the
same standard as the district court.” United States v. Silveus, 542 F.3d 993, 1002 (3d
Cir. 2008) (citation omitted).
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proceedings to the extent necessary for the resolution of the case.
Wilmington Police Department (“WPD”) Detectives Todd Riley and Robert
Cunningham conducted a ten-week undercover investigation of appellant Clarence
Mitchell. On five separate occasions, an informant made controlled purchases of crack
cocaine from Mitchell. Following each purchase, members of WPD covertly tailed
Mitchell in an effort to establish his residence. After the first purchase, the officers lost
Mitchell. During the second purchase, Mitchell was driving a blue Jeep Cherokee, which
was registered to Mitchell’s mother at her residence. The officers conducted surveillance
at this residence; Mitchell was never observed there, although another vehicle that he
operated, a blue Ford Taurus, was seen at this location. After the second purchase, the
officers tailed Mitchell to a bar.
After the third controlled purchase, officers followed Mitchell to a barber shop,
where he remained for approximately twenty minutes. Mitchell then drove the blue Jeep
Cherokee to the residence at North Franklin Place, where he stayed for approximately
twenty minutes before departing. When officers returned to this location two hours later,
the blue Jeep Cherokee was parked on the same block as the residence, which was owned
by, Mitchell’s wife.2 During subsequent surveillance at this address, officers observed
Mitchell arrive at the residence in the blue Ford Taurus that had been seen at Mitchell’s
2
The record does not indicate that police knew that the house was owned by
Mitchell’s wife at the time of their surveillance or of their application for the challenged
warrant.
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mother’s residence. Mitchell entered the residence, stayed for a short time, then exited
and drove towards center-city Wilmington. Mitchell drove the same Ford Taurus to the
fourth controlled purchase. After the purchase, police terminated surveillance of Mitchell
when he entered the center-city area.
For the fifth controlled purchase, the officers had the informant call Mitchell, order
drugs, and arrange a meeting spot. Surveillance officers then observed Mitchell exit a
barber shop, drive to North Franklin Place, enter the residence, remain inside for five
minutes, exit the residence, and drive to meet the informant. After the purchase, officers
followed Mitchell back to the barber shop. During the investigation, officers also
conducted surveillance at Mitchell’s last known residence, but at no time during the
investigation was Mitchell or any of the vehicles he operated during the controlled
purchases observed at this address.
After the fifth controlled purchase, Detectives Riley and Cunningham applied for a
search warrant for the residence at North Franklin Place. Based on an affidavit detailing
the investigation, a Judge of the Justice of the Peace Court # 20 for the State of Delaware
found that the detectives had probable cause to search North Franklin Place and issued a
search warrant. On December 27, 2007, the detectives executed the search warrant and
recovered approximately 4.5 ounces of cocaine; drug packing paraphernalia, including
three plastic bags with a white powdery residue and small plastic bags commonly used for
packaging crack cocaine; approximately $6,415 in cash; and, underneath the mattress, a
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loaded .357 Sig Sauer firearm. Thereafter, Mitchell was indicted for being a felon in
possession of a firearm, in violation of 18 U.S.C. §§ 922(g)(1) and 924 (a)(2) (Count 1);
possession with intent to distribute cocaine, in violation of 21 U.S.C. § 841(a)(1) and
(b)(1)(c) (Count 2); and possession of a firearm in furtherance of a drug trafficking
crime, in violation of 18 U.S.C. § 924(c)(1)(A) and (c)(2) (Count 3).
Mitchell filed an Amended Motion to Suppress Evidence and Statements,
challenging the search of North Franklin Place and the admissibility of his subsequent
statements to the police. On July 30, 2008, the District Court denied Mitchell’s
suppression motion in a Memorandum Order. In ruling on the suppression motion, the
District Court did not reach the issue of whether the judicial officer who issued the search
warrant had a substantial basis for finding probable cause. Instead, the Court ruled that
the good faith exception of United States v. Leon, 468 U.S. 897 (1984), applied as “it
was objectively reasonable for the detectives to rely on the Justice of the Peace Court’s
determination that probable cause existed when they searched Franklin Place.” (App.
18.)
The District Court conducted a jury trial on Counts 2 and 3 of the Indictment.
After the close of the government’s evidence, Mitchell made a motion for judgment of
acquittal on Count 3, the § 924(c) count, pursuant to Federal Rule of Criminal Procedure
29 (“Rule 29”). The Court reserved judgment on the motion. After the jury found
Mitchell guilty of Counts 2 and 3, Mitchell renewed his Rule 29 motion, which the
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District Court denied. The Court then accepted Mitchell’s guilty plea to Count 1.
Subsequently, the District Court sentenced Mitchell to 24 months’ imprisonment on
Counts 1 and 2, to be served concurrently, and 60 months’ imprisonment on Count 3, to
be served consecutively.
On appeal, Mitchell challenges the denial of his suppression and Rule 29 motions.
With respect to the suppression motion, he argues that the detectives did not have
probable cause to search North Franklin Place and that the Leon good-faith exception
was inapplicable. With respect to the Rule 29 motion, he contends that the evidence at
trial was insufficient to prove that he knowingly possessed a firearm in furtherance of a
drug trafficking crime.
II.
In an extensive written opinion ruling on Mitchell’s motion to suppress, the
District Court carefully and thoroughly considered the contentions that the parties raise in
this appeal. After a complete review of the record, including the detectives’ affidavit and
application for a search warrant, and the parties’ arguments, we find no basis for
disturbing the District Court’s ruling. Therefore, we will affirm the denial of Mitchell’s
motion to suppress for the reasons set forth by the District Court in its written opinion.
See United States v. Mitchell, No. 08-cr-23, 2008 WL 2942142 (D. Del. July 30, 2008).
In reviewing the grant or denial of a Rule 29 motion, we exercise plenary review
and independently apply the same standard as the district court. Silveus, 542 F.3d at
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1002. That standard of review is deferential, “viewing ‘the record in the light most
favorable to the prosecution to determine whether any rational trier of fact could have
found proof of guilt beyond a reasonable doubt based on the available evidence.’” Id.
(quoting United States v. Smith, 294 F.3d 473, 476 (3d Cir. 2002)) (further citation
omitted). “A finding of insufficiency [of the evidence] should ‘be confined to cases
where the prosecution’s failure is clear.’” Smith, 294 F.3d at 476 (quoting United States
v. Leon, 739 F.2d 885, 891 (3d Cir. 1984)).
When a defendant moves for a judgment of acquittal at the close of the
government’s case and the district court reserves decision on the motion, the district court
must “determine whether an acquittal was appropriate based solely on the evidence
presented by the government.” United States v. Brodie, 403 F.3d 123, 133 (3d Cir. 2005)
(citing Fed. R. Crim. P. 29(b)). We are “similarly limited” and will “examine only . . . the
evidence presented in the government’s case, which includes evidence elicited on cross-
examination of the government’s witnesses, but not evidence presented in the defense
case.” Id. at 133–34 (internal quotation marks & citations omitted). Specifically, we will
not consider the testimony of Mitchell’s wife and Pearl A. Ponzo who testified for the
defense.
The essential elements of knowing possession of a firearm in furtherance of a drug
trafficking crime, in violation of 18 U.S.C. § 924(c) are: (1) the defendant committed the
crime of possession with intent to distribute a controlled substance; (2) the defendant
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knowingly possessed a firearm; and (3) the defendant knowingly possessed the firearm in
furtherance of the crime of possession with intent to distribute. United States v. Bobb,
471 F.3d 491, 496 (3d Cir. 2006). Mitchell argues that the government’s evidence was
insufficient to prove the third element—that he possessed the gun in furtherance of a
drug trafficking crime. To establish the third element, “the ‘mere presence’ of a gun is
not enough. . . . [T]he evidence must demonstrate that possession of the firearm advanced
or helped forward a drug trafficking crime.” United States v. Sparrow, 371 F.3d 851, 853
(3d Cir. 2004) (citations omitted). In making this assessment, we consider the following
nonexclusive factors:
the type of drug activity that is being conducted, accessibility of the firearm,
the type of the weapon, whether the weapon is stolen, the status of the
possession (legitimate or illegal), whether the gun is loaded, proximity to
drugs or drug profits, and the time and circumstances under which the gun is
found.
Id. (quoting United States v. Ceballos-Torres, 218 F.3d 409, 414–15 (5th Cir. 2000)).
The record in the instant case demonstrates that many of the Ceballos-Torres
factors are satisfied. A Sig Sauer .357 is a semiautomatic handgun, which, according to
Detective Cunningham, can be concealed on a person. Mitchell, as a prior felon, could
not lawfully possess a firearm. Moreover, at trial the government presented evidence that
the firearm was stolen and that Mitchell bought it “on the street.” (Gov’t Ex. 5, Clip 2.)
The gun was found, loaded, under the mattress in the bedroom at North Franklin Place,
where it was easily accessible. During the same search, police retrieved approximately
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$6,415 in cash from the house and approximately 4.5 ounces of cocaine from the garage
in the rear yard. Mitchell stated that he bought the gun “[b]ecause [he] was kind of scared
. . . because jokers was shooting jokers. They were running up on the block and robbing
people . . . . They catch the jokers going in their house and robbing them . . . .” (App.
330.) Based on this evidence, a rational juror could reasonably find that Mitchell
possessed the firearm to protect the drugs and drug proceeds located at North Franklin
Place, a type of possession that “furthers, advances, or helps forward” drug trafficking.3
Ceballos-Torres, 218 F.3d at 415.
IV.
For the foregoing reasons, we affirm the District Court’s denial of Mitchell’s
motion to suppress and the denial of his Rule 29 motion for judgment of acquittal.
3
The government also argues that the evidence was sufficient for a rational juror
to find that Mitchell brought the firearm with him for protection while he engaged in
drug sales. In light of our conclusion that the evidence was sufficient to support a
finding that Mitchell possessed the gun to protect his drug and drug proceeds, we see no
need to rule on the government’s alternative argument.
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