NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
______
No. 12-4165
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UNITED STATES OF AMERICA
v.
WILLIAM JACKSON,
Appellant
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On Appeal from the United States District Court
for the Eastern District of Pennsylvania
(No. 09-cr-00475-001)
District Judge: Hon. Norma L. Shapiro
Submitted Pursuant to Third Circuit LAR 34.1(a)
February 10, 2014
Before: CHAGARES, SHWARTZ, and ALDISERT, Circuit Judges.
(Filed: July 31, 2014)
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OPINION
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CHAGARES, Circuit Judge.
A jury found William Jackson guilty of possession of cocaine base with intent to
distribute in violation of 21 U.S.C. § 841(a)(1), carrying a firearm in relation to a drug
offense in violation of 18 U.S.C. § 924(c)(1), possession of marijuana in violation of 21
U.S.C. § 844(a), and felon in possession of a firearm in violation of 18 U.S.C. §
922(g)(1). Jackson challenges his conviction on several grounds, arguing that: (1) the
District Court erred in denying his motion to suppress physical evidence; (2) the evidence
was insufficient to establish that Jackson possessed narcotics with the intent to distribute
or that he possessed a firearm in connection with a drug offense; and (3) the evidence was
insufficient to establish the interstate commerce element of the offense of felon in
possession of a firearm. For the reasons that follow, we will affirm Jackson’s conviction
on all counts.
I.
We write solely for the parties and therefore recite only the facts that are necessary
to our disposition.
On December 7, 2006, at approximately 11:08 p.m., Philadelphia Police Officers
Randy Cole and Gerald Logan reported to Kellis, a bar in Philadelphia, in response to a
radio call relaying an anonymous informant’s tip regarding a black male wearing a black
Adidas hooded sweatshirt and fatigue pants and possessing a gun. Upon entering the bar,
the officers noticed Jackson, who was seated at the bar and was wearing a black Adidas
hooded sweatshirt and blue jeans. The officers approached Jackson and asked him if he
would accompany them to the back of the bar to talk, and Jackson agreed to do so. He
walked to the rear of the bar with Officer Logan beside him and Officer Cole directly
behind him. Officer Logan testified that, while walking to the back of the bar, he placed
his hand on Jackson’s shoulder. Officer Cole testified that he may have placed his hand
on Jackson’s back. Both officers testified that the touching was brief and intended to
guide Jackson through the crowd towards the back of the bar.
2
At some point after Officer Cole touched Jackson’s back, Jackson informed him
that he was carrying a firearm. Officer Cole was unable to recall whether this admission
occurred while his hand was still on Jackson’s back. When the officers and Jackson
reached the back of the bar, Officer Cole ordered Jackson to place his hands on the wall.
Officer Cole seized Jackson’s firearm, handcuffed him, and placed him under arrest.
Outside the bar, Officer Logan searched Jackson and recovered forty-two small
ziplock baggies containing crack cocaine from his sweatshirt pocket. Officer Logan also
recovered a glass jar containing marijuana from Jackson’s sweatshirt pocket. Officer
Logan did not find any drug paraphernalia on Jackson.
Before trial, Jackson moved to suppress his statement that he possessed a firearm,
as well as the firearm, the ziplock baggies of crack, and the glass jar of marijuana.
Jackson argued that the evidence must be suppressed because he was seized in violation
of his Fourth Amendment rights. The District Court denied Jackson’s motion. See
Appendix (“App.”) 2-7. After a three-day trial, a jury convicted Jackson on all counts.
Jackson moved for acquittal and arrest of judgment or, in the alternative, a new trial,
arguing that the denial of the motion of suppress was in error and the evidence underlying
his convictions was insufficient. The District Court denied the motion. See App. 9-21.
On November 1, 2012, the District Court sentenced Jackson to 101 months of
imprisonment and five years of supervised release. Jackson filed a timely appeal.
II.1
1
The District Court had jurisdiction pursuant to 18 U.S.C. § 3231, and we have
jurisdiction pursuant to 28 U.S.C. § 1291 and 18 U.S.C. § 3742(a).
3
We review a District Court’s denial of a motion to suppress for “clear error as to
the underlying factual findings and exercise[] plenary review of the District Court’s
application of the law to those facts.” United States v. Perez, 280 F.3d 318, 336 (3d Cir.
2002) (citations omitted).
“Sufficiency of the evidence is a question of law, subject to plenary review.”
United States v. Moyer, 674 F.3d 192, 206 (3d Cir. 2012). A defendant claiming
insufficient evidence bears a heavy burden; this Court will overturn a verdict “only when
the record contains no evidence, regardless of how it is weighted, from which the jury
could find guilt beyond a reasonable doubt.” United States v. Riley, 621 F.3d 312, 329
(3d Cir. 2010) (quotation marks omitted). In making this determination, “we must view
the evidence in the light most favorable to the Government.” Id. (quotation marks
omitted). Ultimately, the verdict “must be upheld as long as it does not ‘fall below the
threshold of bare rationality.’” United States v. Caraballo-Rodriguez, 726 F.3d 418, 431
(3d Cir. 2013) (en banc) (quoting Coleman v. Johnson, 132 S.Ct. 2060, 2065 (2012)).
III.
A.
Jackson first argues that the District Court erred in denying his motion to suppress
physical evidence. Specifically, he asserts that Officers Cole and Logan had already
seized him, in violation of his Fourth Amendment rights, when he told them he was
carrying a handgun.
The Fourth Amendment provides that “[t]he right of the people to be secure in
their persons, houses, papers, and effects, against unreasonable searches and seizures,
4
shall not be violated.” U.S. Const. amend. IV. Evidence discovered during or pursuant
to an unreasonable search and seizure is inadmissible at trial as “fruit of the poisonous
tree.” See Wong Sun v. United States, 371 U.S. 471, 487-88 (1963). Accordingly, we
must determine whether Jackson was seized before he informed Officers Cole and Logan
that he possessed a firearm.2
“A seizure occurs when there is either (a) a laying on of hands or application of
physical force to restrain movement, even when it is ultimately unsuccessful, or (b)
submission to a show of authority.” United States v. Brown, 448 F.3d 239, 245 (3d Cir.
2006) (quotations omitted). The test for “existence of a show of authority is an objective
one: not whether the citizen perceived that he was being ordered to restrict his
movement, but whether the officer’s words and actions would have conveyed that to a
reasonable person.” Id. (quotations omitted). A seizure does not occur, however,
“simply because a police officer approaches an individual and asks a few questions. So
long as a reasonable person would feel free to disregard the police and go about his
business, the encounter is consensual . . . . The encounter will not trigger Fourth
Amendment scrutiny unless it loses its consensual nature.” Florida v. Bostick, 501 U.S.
429, 434 (1991) (citations omitted); see also United States v. Mendenhall, 446 U.S. 544,
554 (1980). In Mendenhall, the Supreme Court provided a non-exhaustive list of
examples of “circumstances that might indicate a seizure,” including “the threatening
2
The District Court found that the anonymous tip provided to Officers Cole and Logan
over the radio did not contain the “indicia of reliability” necessary to make a seizure
reasonable under Terry v. Ohio, 392 U.S. 1 (1968). App. 4. The parties do not dispute
this holding.
5
presence of several officers, the display of a weapon by an officer, some physical
touching of the person of the citizen, or the use of language or tone of voice indicating
that compliance with the officer’s request might be compelled.” 446 U.S. at 554.
Jackson asserts that the facts that the officers approached him, asked him to go to the
back of the bar, and placed their hands on his back and shoulders indicate that he was
seized by the officers before he stated that he had a handgun, such that any physical
evidence obtained after this seizure is inadmissible.
An analysis of the facts demonstrate that Jackson’s argument is without merit.
The District Court found, and Jackson does not dispute, that the officers placed their
hands on Jackson’s shoulder and back only after he had already agreed to accompany
them to the back of the bar. The initial encounter, accordingly, was consensual. The
District Court further found, and this Court agrees, that, as the bar was crowded, the
touching could reasonably be seen as an attempt to communicate with and guide Jackson
in a noisy environment. There is no indication in the record that Jackson attempted to
flee, or that the officers attempted to restrain him in any way. Merely placing a hand on
Jackson’s shoulder and back to guide him through a crowded bar, without more, is
insufficient to shift the nature of the interaction from consensual to involuntary.
In addition, taking into consideration the Mendenhall factors, the evidence reflects
that the two officers were the only officers present, that they did not brandish weapons,
and that they did not use language or a tone of voice indicating that Jackson’s compliance
might be compelled. See id.
6
Although Jackson asserts that no reasonable person would feel free to ignore a
request from police officers, the Supreme Court has stated that “[w]hile most citizens will
respond to a police request, the fact that people do so, and do so without being told they
are free not to respond, hardly eliminates the consensual nature of the response.” INS v.
Delgado, 466 U.S. 210, 216 (1984). To hold otherwise would threaten the ability of law
enforcement officials to approach people and ask questions in the course of their duties.
Accordingly, we hold that it was not error for the District Court to deny Jackson’s
motion to suppress physical evidence.3
B.
Next, Jackson argues that the evidence was insufficient to establish that (1)
Jackson possessed cocaine base with the intent to distribute, and (2) Jackson possessed a
firearm in relation to a drug offense.
1.
In order to prove possession with intent to distribute, the Government must prove
beyond a reasonable doubt that a defendant: (1) possessed a controlled substance; (2)
knew that the substance he possessed was a controlled substance; and (3) intended to
distribute the controlled substance. See United States v. Kim, 27 F.3d 947, 959 (3d Cir.
3
Jackson cites several cases for the proposition that he was seized when the officers
asked him to accompany them to the back of the bar and placed their hands on his
shoulder and back. See Jackson Br. 21-22. However, in each of the cited cases, the
officers acted in an attempt to restrict the defendants’ movements. Here, the officers did
not attempt to restrict Jackson’s movement; indeed, they had no reason to do so, as
Jackson consented to accompany them to the back of the bar.
7
1994). The Government may prove both possession and intent to distribute through
circumstantial evidence. United States v. Johnson, 302 F.3d 139, 149 (3d Cir. 2002).
Officer Logan found 42 individually bagged packets of crack cocaine on Jackson.
Detective Chris Marano, the Government’s expert, testified that, in his experience as an
undercover narcotics officer, the possession of 42 packets of crack cocaine is consistent
with an intent to distribute. He testified that individual users of crack only carry up to
nine packets at once, and more than that would put the user at risk of being robbed.
Detective Marano also testified that individual users could obtain more crack for a
cheaper price by purchasing it in bulk, rather than in individual packets.
Officers Cole and Logan testified that they did not find any paraphernalia for
personal use when they searched Jackson, although Officer Cole admitted it would be
“possible” to use the glass jar to vaporize crack. However, the jar did not have burn
marks on it. Detective Marano testified that a jar with no charred ends containing
marijuana could, but likely would not be, used as a crack pipe, because the user would
burn his or her fingers when the glass heats. Detective Marano also testified that
Jackson’s possession of an expensive firearm was consistent with a finding that he was a
distributor, not a personal user.
Jackson points out that the officers did not observe him selling crack and did not
conduct any controlled buys. He also notes that the officers found no money on him, and
one would expect to find money on a drug distributor. However, viewing the record as a
whole in the light most favorable to the Government, this evidence is more than sufficient
8
to support Jackson’s guilty verdict on possession of crack cocaine with intent to
distribute.
2.
To sustain a conviction under 18 U.S.C. § 924(c)(1), the Government must prove
beyond a reasonable doubt that, in addition to possession with intent to distribute,
Jackson knowingly carried a firearm during and in relation to drug trafficking activity.
United States v. Bobb, 471 F.3d 491, 496 (3d Cir. 2006). Jackson does not dispute that
he carried a firearm, but maintains that the evidence was insufficient for a reasonable jury
to find that he carried it during and in relation to a drug offense.
The mere presence of a firearm is insufficient to sustain a conviction under 18
U.S.C. § 924(c)(1). United States v. Sparrow, 371 F.3d 851, 853 (3d Cir. 2004). Rather,
the Government “must show that the firearm was possessed by the defendant to advance
or promote criminal activity.” Bobb, 471 F.3d at 496. In making this determination,
relevant, nonexclusive factors to consider include “‘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.’” Sparrow, 371 F.3d at 853 (quoting United States v. Ceballos-Torres, 218 F.3d
409, 414-15 (5th Cir. 2000)).
The officers found a loaded gun on Jackson, who was also in possession of
marijuana and a substantial amount of crack cocaine at the time. Accordingly, the gun
was in close proximity to the drugs, and was easily accessible to Jackson. Detective
9
Marano testified that the gun was a Desert Eagle 45, a “nice gun” that would go for
$1,000 on the street. App. 122. He also testified that “[g]uns and drugs go together.”
App. 148. In addition, Jackson’s possession of the firearm was illegal, as he had
previously been convicted of a felony. This evidence is sufficient to sustain Jackson’s
conviction under 18 U.S.C. § 924(c)(1).
C.
Finally, Jackson argues that the evidence was insufficient to establish the interstate
commerce element of 18 U.S.C. § 922(g)(1), felon in possession of a firearm. 18 U.S.C.
§ 922(g)(1) provides that persons who have been convicted of crimes punishable by
imprisonment for over one year cannot, among other things, “receive any firearm or
ammunition which has been shipped or transported in interstate or foreign commerce.”
It is undisputed that the firearm possessed by Jackson was manufactured in Israel
and imported into Minnesota, and, accordingly, has traveled in foreign and interstate
commerce. Although Jackson argues that this is insufficient to prove the interstate
commerce element of 18 U.S.C. § 922(g)(1), he acknowledges that this Court rejected
that argument in United States v. Singletary, 268 F.3d 196 (3d Cir. 2001). In Singletary,
we held that proof that a “gun had traveled in interstate commerce, at some time in the
past, was sufficient to satisfy the interstate commerce element” of 18 U.S.C. § 922(g)(1).
Id. at 205. We are, accordingly, bound by this Court’s precedent to find that the evidence
was sufficient to satisfy the interstate commerce element here, and Jackson raises this
argument only to preserve it for purposes of appeal.
IV.
10
For the foregoing reasons, we will affirm the District Court’s judgment of
conviction.
11