[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________ FILED
U.S. COURT OF APPEALS
No. 09-10836 ELEVENTH CIRCUIT
NOVEMBER 10, 2009
Non-Argument Calendar
THOMAS K. KAHN
________________________
CLERK
D. C. Docket No. 08-00284-CR-T-17-TBM
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
FASAHA ANGAZA GREY,
Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Middle District of Florida
_________________________
(November 10, 2009)
Before BIRCH, MARCUS and ANDERSON, Circuit Judges.
PER CURIAM:
Defendant-appellant, Fasaha Angaza Grey, appeals his conviction for
carrying and possessing a firearm in furtherance of a drug trafficking crime
pursuant to 18 U.S.C. §924(c)(1)(A). Grey argues that the evidence was
insufficient to convict him and that the prosecutor’s comments during the
government’s summation amount to misconduct and warrant a new trial. We
AFFIRM.
I. BACKGROUND
A federal grand jury indicted Grey for (1) one count of conspiracy to possess
with the intent to distribute 500 grams or more of cocaine, in violation of 21 U.S.C.
§§846 and 841(b)(1)(B) (Count One), and (2) one count of carrying a firearm
during and in relation to, and possessing a firearm in furtherance of, a drug
trafficking crime in violation of 18 U.S.C. §924(c)(1)(A) (Count Two). R1-24.
Edward Quinones, a narcotics detective for the City of Tampa, testified that
he helped to arrest Grey and Grey’s co-defendants by posing undercover as a
cocaine dealer. R3 at 31. Quinones stated that, during the transaction, he did not
notice any bulges in Grey’s clothing, that no one discussed whether Grey was
carrying a gun, and that he did not observe Grey with a gun at any point. R4 at 18-
20, 23-24, 33. Quinones said, though, that it would be unusual for someone in a
drug transaction to announce that he was carrying a weapon. Id. at 38-39.
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Anthony Tyson, a narcotics detective for the city of Tampa, also participated
in Grey’s arrest. R4 at 49. He saw another detective remove a holstered nine
millimeter pistol from the right side of Grey’s waistband immediately after the
arrest. Id. at 51. The detective then handed Tyson the weapon; Tyson removed the
15-round magazine and a live bullet from the chamber, identified the gun, holster,
magazine and ammunition; the government entered the gun into evidence. Id. at
52-56. Detectives found 39 additional rounds of nine millimeter ammunition
inside the car in which Grey drove to the warehouse and, in a post-Miranda
interview, Grey confirmed that he bought the gun three months earlier “for
protection.” Id. at 65-66.
At the close of the government’s case, Grey moved for acquittal pursuant to
Federal Rule of Criminal Procedure 29. R5 at 7-9. He argued that the government
had failed to produce evidence that the firearm he carried at the time of his arrest
was used “in furtherance of” the underlying drug trafficking offense, as required by
statute. Id. at 8-9; see 18 U.S.C. §924(c). Grey argued that “[t]here was no
evidence that he brought the firearm to the drug transaction for protection of the
drugs and in furtherance of the drug offense.” R5 at 8. This was demonstrated,
Grey argued, by Detective Quinones’s testimony that he was unaware Grey was
carrying a firearm. Id. The government responded that the statute does not require
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a defendant to use or brandish the weapon. Id. at 9. The court denied the motion
and another for acquittal on the underlying conspiracy charge. Id. at 10.
Grey rested and renewed his previous motions for acquittal but the court
renewed its denial. R5 at 11. After the government and Grey presented their
initial closing arguments, the government presented its rebuttal summation, during
which counsel for Grey objected:
[PROSECUTOR]: [Grey] didn’t have to brandish [the gun], he’s not
charged with brandishing it or actually using it. It gave him the
confidence to be calm no matter what happened in this drug
trafficking offense when he met these people that he didn’t know
anything about. That’s why it’s illegal.
And it’s not – it’s irrelevant that he was a prohibitive person or not.
And it’s irrelevant that – whether the gun was stolen or not. It doesn’t
matter. It could have been, you know, his own personal gun, he could
have had a license to carry anything. What made it illegal was for him
to walk into that drug trafficking offense with that firearm[.] That is
what made it illegal, that’s what makes it a [f]ederal offense. You
can’t bring a gun to a drug trafficking crime. And that’s the crime that
is charged in this case.
[DEFENSE COUNSEL]: May I object, Judge, there’s no need to approach,
if you could just note my objection.
[THE COURT]: All right, noted for the record, I’ll deal with it subsequently.
[PROSECUTOR]: And for that reason, ladies and gentlemen, we
believe that the evidence supports beyond a reasonable doubt, any
reasonable doubt, if you use your common sense in real life
experiences, that Mr. Grey brought that firearm in there to give him
the confidence to commit that crime that he committed and that was
the conspiracy to possess that cocaine with the intent to distribute it.
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(Id. at 35-36). After the jury rendered its verdict of guilty on both counts, Grey
renewed the objection made during the government’s summation. Grey’s motion
for a mistrial was denied. Id. at 85. After a sentencing hearing, the district court
sentenced Grey to a total of 123 months in prison. R6 at 10-11. Grey appealed.
II. DISCUSSION
A. Sufficiency of the Evidence
We review challenges to the sufficiency of evidence de novo, viewing
evidence in the light most favorable to the government and upholding a conviction
unless a jury could not reasonably have found the defendant guilty. United States
v. Emmanuel, 565 F.3d 1324, 1333 (11th Cir. 2009) (quotation omitted).
Section 924(c) provides enhanced penalties for carrying a firearm “during
and in relation to” a federal drug trafficking crime or for “possessing” a firearm “in
furtherance of” a drug trafficking crime. 18 U.S.C. §924(c)(1)(A). To prove that a
gun was possessed in furtherance of a drug trafficking crime, the government must
establish a nexus between the gun and the drug operation. United States v.
Timmons, 283 F.3d 1246, 1253 (11th Cir. 2002). We consider several factors
when determining whether a defendant possessed a firearm in furtherance of a drug
trafficking crime, including: the type of drug activity, accessibility of the firearm,
the type of weapon, whether the weapon was stolen, the legality of firearm
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possession, whether the gun is loaded, proximity to the drugs, and the time and
circumstances under which the gun is found. United States v. Woodard, 531 F.3d
1352, 1362 (11th Cir. 2008) (citation omitted).
Some of the Woodard factors are in Grey’s favor – the gun was not stolen
and Grey appears to have been its legal owner. The remainder, however, weigh
against him. The drug activity was a major transaction involving $18,000 and a
kilogram of cocaine. The weapon was fully loaded. It was on his person, attached
to his waistband, easy for him to reach and close to the drugs and the money that
were involved in the transaction. Viewing the evidence in the light most favorable
to the government, a reasonable factfinder could find that the gun facilitated the
offense by giving Grey confidence and security and that he therefore possessed it
in furtherance of the drug trafficking crime. Thus, there is sufficient evidence to
support Grey’s conviction under the statute.
B. Prosecutorial Misconduct
Ordinarily, we review allegations of prosecutorial misconduct de novo.
United States v. Merrill, 513 F.3d 1293, 1306 (11th Cir. 2008) (citation omitted).
To constitute prosecutorial misconduct, a prosecutor’s remarks must be improper
and must prejudicially affect the substantial rights of the defendant. United States
v. Eckhardt, 466 F.3d 938, 947 (11th Cir. 2006) (citation omitted).
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Considered in context, the prosecutor’s remarks were not improper. Grey
correctly argues that the mere possession of a firearm during a drug trafficking
offense is, without more, insufficient for a conviction under §924(c). Before the
objected-to statement, though, the prosecutor had said that the gun “gave [Grey]
the confidence to be calm” in a drug deal with persons unfamiliar to him. R5 at
35-36. After the objection, the prosecutor reiterated that point. In context, the
objected-to remarks cannot be considered part of an improper effort to mislead the
jury about what the offense required. The government made clear how its
argument fit within the requirements of the statute and hinged upon the promotion
of a feeling of confidence and security that furthered the offense.
Moreover, even if the government’s remarks were improper, Grey cannot
satisfy the second prong of prosecutorial misconduct. The record contains
sufficient evidence that Grey violated §924(c)(1) when he carried a loaded firearm
to a drug transaction. In the face of such independent evidence of guilt, “any error
is harmless.” Eckhardt, 466 F.3d at 947. The appellee’s prosecutorial misconduct
argument fails both prongs of the de novo standard.
III. CONCLUSION
Grey appeals on the twin bases that there was insufficient evidence to
convict him under §924(c)(1) and that the prosecution committed misconduct
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requiring a new trial. As we have explained, the conviction was proper and the
prosecution’s remarks did not amount to misconduct. Accordingly, judgment of
the district court is AFFIRMED.
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