Petition for Writ of Certiorari — Norwood v. United States (No. 09-69)

Supreme Court, U.S.

(1) ae FILED

No. _ 69-69 Jul 17 2009

OFFICE OF THE CLERK

IN THE

Supreme Court of the United States

ng ee

ROBERT LEWIS NORWOOD,

Petitioner,

UNITED STATES OF AMERICA,

Respondent.

ON PETITION FOR WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT

PETITION FOR WRIT OF CERTIORARI

ROBERT J. PFISTER

Counsel of Record

ANDREW B. BRETTLER

PETER R. JORDAN

SIMPSON THACHER & BARTLETT LLP

1999 Avenue of the Stars, 29th Floor

Los Angeles, California 90067

(310) 407-7500

Attorneys for Petitioner

Robert Lewis Norwood

QUESTION PRESENTED

Whether an ex parte affidavit prepared solely

for the purpose of establishing a critical fact at a

federal criminal trial—namely, that the Government

performed a “diligent search” but found no record of

defendant’s lawful employment, thus providing

circumstantial evidence that the defendant was

dealing (not merely using) narcotics—is “testimonial”

evidence subject to the demands of the Confrontation

Clause.

1

PARTIES TO THE PROCEEDINGS BELOW

The petitioner in this case (defendant-

appellant below) is Robert Lewis Norwood. The

respondent is the United States of America.

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TABLE OF CONTENTS

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Appendix

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TABLE OF AUTHORITIES

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Cases

Barba v. California,

557 U.S. __ (June 29, 2009) (mem. )..........cccccceeeeek 7

Crager v. Ohio,

557 U.S. (June 29, 2009) (mem.)...................00- 7

Lawrence v. Charter,

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Melendez-Diaz v. Massachusetts,

557 U.S._—s— (June 25, 2009) ................ raRere 5. 6, 7,9

Morales v. Massachusetts,

557 U.S. ___ (June 29, 2009) (mem.)...................... 7

Pimentel v. Massachusetts,

957 U.S. ___s (June 29, 2009) (mem.).................. 008 7

Rivera v. Massachusetts,

557 U.S. ss (June 29, 2009) (mem.)..............000.000- 7

United States v. Cervantes-Flores,

421 F.3d 825 (Oth Cir. 2005)..................cccccoccccccscees 7

United States v. Norwood,

555 F.3d 1061 (9th Cir. 2009)

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Sn The Supreme Court of the Gnited States

ROBERT LEWIS NORWOOD, PETITIONER

V.

UNITED STATES OF AMERICA, RESPONDENT.

On Petition for Writ of Certiorari to the United

States Court of Appeals for the Ninth Circuit

Robert Lewis Norwood respectfully petitions

for a writ of certiorari to review the judgment of the

United States Court of Appeals for the Ninth Circuit

in this case.

OPINIONS BELOW

The Ninth Circuit’s opinion (App. la) is

reported at 555 F.3d 1061.

JURISDICTION

The court of appeals affirmed Mr. Norwood’s

conviction and sentence by published opinion filed

February 18, 2009. United States v. Norwood, 555

F.3d 1061 (9th Cir. 2009) (App. la). The jurisdiction

of this Court is invoked under 28 U.S.C. § 1254(1).

Upon Petitioner’s application dated April 23, 2009,

Justice Kennedy extended the time to seek certiorari

to and including June 18, 2009. Upon Petitioner’s

further application dated May 29, 2009, Justice

Kennedy further extended the time to seek certiorari

to and including July 18, 2009.

Pe em ett PD ace Pai A 2 22

Lh

RELEVANT CONSTITUTIONAL AND

STATUTORY PROVISIONS

The Sixth Amendment to the U.S.

Constitution provides, in pertinent part, that “in all

criminal prosecutions, the accused shall enjoy the

right... to be confronted with the witnesses ayainst

him.’

section 841(a\1) of Title 21 of the U.S. Code

punishes “possess[ion] with intent to manufacture,

distribute, or dispense, a controlled substance.”

Section 924(c)(1) of Title 18 of the U.S. Code

punishes possession of a firearm “during and in

relation to any... . drug trafficking crime.”

Section 2106 of Title 28 of the U.S. Code

provides that “[t}he Supreme Court... may affirm,

modify, vacate, set aside or reverse any judgment,

decree, vr order of a court lawfully brought before it

fur review, and may remand the cause and direct the

entry of such appropriate judgment, decree, or order,

or require such further proceedings to be had as may

be just under the circumstances.”

eS A en eee ee ee es ee es ee

STATEMENT OF THE CASE

This case concerns Robert Norwood’s

constitutional right “to be confronted with the

witnesses against him,” U.S. Const. amend. VI, at his

federal criminal trial. The principle issue at trial

was whether narcotics found in Mr. Norwood’s home

were intended for distribution or mere personal use.

Given the presence of a firearm at the scene, the

possession-with-intent-to-sell charge carried =a

mandatory fifteen-year sentence, see 18 U.S.C.

§ 924(c\1); 21 U.S.C. § 841(b)\(1), while mere

possession would have resulted in a fraction of that

penalty, see 21 U.S.C. § 844(a).

The Government’s evidence of Mr. Norwood’s

alleged intent to distribute narcotics was sparse and

entirely circumstantial. No witness claimed to have

purchased drugs from Mr. Norwood, nor did any

witness claim to have observed Mr. Norwood selling

drugs to others. Instead, the Government relied on

the presence of circumstantial physical evidence—

including, inter alia, Mr. Norwood’s possession of a

sizeable amount of cash. Given the lack of any direct

evidence that Mr. Norwood was a drug dealer, the

district court characterized the Government’s case as

“closer to the edge rather than heavy duty.”

To bolster its case-in-chief, the Government

introduced an affidavit in which an employee of the

State of Washington claimed to have undertaken “a

diligent search of the department’s files” yet was

unable to find “any record of wages reported” for Mr.

Norwood for more than two years preceding his

arrest. 555 F.3d at 1064 (App. 4a, 22a). The

affidavit in question was created solely for the

purpose of establishing circumstantially a fact

necessary for Mr. Norwood’s conviction. Specifically,

the Government offered the affidavit as proof that

Mr. Norwood “had no legal source for the large

amounts of cash that were found on his person and

in his car,” id. at 1064 (App. 4a), and therefore that

the narcotics seized from Mr. Norwood’s home were

“knowingly or intentionally... possess{ed] with the

intent to manufacture, distribute, or dispense,” 2]

U.S.C. § 841(a)(1), rather than possessed for personal

use.

The affidavit at issue consisted of two pages.

The first page purported to be a complete copy of Mr.

Norwood's employment records from the first quarter

of 2004 through the first quarter of 2007. The second

page was a formal declaration by the affiant, an

employee at the Washington State Employment

Security Department, indicating that “a diligent

search of the department’s files failed to disclose any

record of wages” during that span. (App. 22a.)

However, according to Mr. Norwood’s ex-girlfriend,

Mr. Norwood did in fact have legitimate income

during the relevant period. She testified at trial that

Mr. Norwood worked part-time cleaning rental

properties, that he had recently received a lump sum

distribution from his prior employer’s 401(k) plan,

and that he was a successful gambler.

The state employee who executed the affidavit

did not appear at trial and was not subject to cross-

examination. Mr. Norwood objected to the

admissibility of the affidavit as a violation of his

Sixth Amendment right to confront witnesses

against him. (App. 18a—2la.) The trial judge

overruled Mr. Norwood’s objection and admitted the

affidavit, stating simply: “I am going to overrule the

objection. I will admit it at this time.” (App. 20a.)

Mr. Norwood was convicted of possession with intent

to distribute five grams or more of cocaine base and

possessing a firearm in furtherance of a drug

trafficking crime. He was sentenced to fifteen years

in federal prison.

On appeal, Mr. Norwood renewed his

contention that he was deprived of his Sixth

Amendment right to confront the Washington State

employee who provided evidence against him in the

form of an affidavit. The Ninth Circuit affirmed Mr

Norwood’s conviction and sentence, holding that the

affidavit, though expressly prepared for introduction

as evidence at Mr. Norwood’s criminal trial, was akin

to a “business record” and ~was_ therefore

nontestimonial and not subject to Sixth Amendment

scrutiny. 555 F.3d at 1066 (App. 7a—8a).

After the Ninth Circuit issued its decision, but

before Mr. Norwood’s time to petition for certiorari

had expired, this Court decided Melendez-Diaz v.

Massachusetts, 557 U.S. ___ (June 25, 2009). The

Court’s opinion in Melendez-Diaz held that so-called

“certificates of no record” (such as the affidavit here),

created solely for use as evidence at trial, are

“testimonial” and _ therefore subject to Sixth

Amendment scrutiny. This timely petition for

certiorari followed.

6

REASONS FOR GRANTING THE PETITION

The decision below cannot stand in light of

Melendez-Diaz v. Massachusetts, 557 US (June

25, 2009). Melendez-Diaz—which is squarely on

point—was decided after the Ninth Circuit’s opinion

but before the expiration of Mr. Norwood’s time to

petition for certiorari. Accordingly, this case is an

ideal candidate for an order granting certiorari,

vacating the judgment below and remanding the case

for further proceedings in light of Melendez-Diaz.

Pursuant to section 2106 of the Judicial Code,

this Court has broad power to grant, vacate and

remand (“GVR") a case when intervening

developments reveal a “reasonable probability that

the decision below rests upon a premise that the

lower court would reject if given the opportunity for

further consideration.” Lawrence v. Charter, 516

U.S. 163, 167 (1996). By issuing a GVR order, the

Court exercises its equitable power to give lower

courts the opportunity to reconsider judgments in

order to “avoid the unseemliness of holding

judgments to be in error” based on information that

was previously unavailable. /d. at 181 (Scalia, J.,

dissenting).

Here, in affirming the district court’s decision

to admit the affidavit from the Washington

Employment Security Department employee over

Mr. Norwood’s timely objection, the Ninth Circuit

categorized the affidavit as a so-called “certificate of

no record” (CNR), and determined (erroneously) that

it was not subject to Confrontation Clause scrutiny

because it is akin to a nontestimonial “business

record.” 555 F.3d at 1066 (App. 7a—8a) (citing United

an ' “-e .

;

States v. Cervantes-Flores. 421 F.3d B25. 831 (9th

Cir. 2005)) ‘our months later, in Melendez-Diaz.

this Court flatly rejected the application of such

reasoning to records—including both traditional

affidavits and CNRs—prepared olely for use a

evidence at trial

“IA! clerk’s certificate atte ting to the

fact that the clerk had searched for a

particular relevant record and failed

LO find it would Serve. as

substantive evidence against the

defendant whose guilt depended on

the nonexistence ol the record for

which the clerk searched ithereby

making the clerk} subject to

confrontation.” |\Melendez-Dia ay

US , Slip op. at 10.]

Given the strength of the Court’s holding in

Melendez-Diaz and its direct applicability here

Petitioner respectfully requests that the Court

summarily vacate the Ninth Circuit’s decision and

remand the matter for further proceedings in light of

Melendez-Diaz.'_ The Court took this very action in

five other cases in the days following Melendez-Diaz.

See Barba vy. California, 557 U.S. (June 29, 2009)

(mem.); Crager v. Ohio, 557 U.S. (June 29, 2009)

(mem.); Morales v. Massachusetts, 557 U.S. (June

29, 2009) (mem.); Pimentel v. Massachusetts, 557

U.S. (June 29, 2009) (mem.); Rivera v.

Massachusetts, 557 U.S. (June 29, 2009) (mem.).

Petitioner preserves all arguments raised on appeal to

the Ninth Circuit not specifically addressed in this petition

8

In the alternative, the Court should either

summarily reverse the Ninth Circuit or grant

plenary review and set this case for argument. At

trial, Mr. Norwood timely asserted his objection

regarding the admissibility of the affidavit. He

properly preserved that objection on appeal to the

Ninth Circuit. The affidavit served as a central piece

of evidence against him and led to his conviction.

This prejudicial error should not be left uncorrected.

9

CONCLUSION

For the reasons set forth above, the petition

for certiorari should be granted, the Ninth Circuit’s

decision should be vacated and the case should be

remanded for further proceedings in light of

Melendez-Diaz. Alternatively, the Court should

either summarily reverse the Ninth Circuit or grant

plenary review and set the case for argument.

Respectfully submitted,

ROBERT J. PFISTER

Counsel of Record

ANDREW B. BRETTLER

PETER R. JORDAN

SIMPSON THACHER &

BARTLETT LLP

1999 Avenue of the Stars

29th Floor

Los Angeles, California 90067

(310) 407-7500

Attorneys for Petitioner

Robert Lewis Norwood

APPENDIX

la

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

No. 08-30050

D.C. No. CR-06-00091-LRS

February 18, 2009

UNITED STATES OF AMERICA, Plaintiff-Appellee

V.

ROBERT LEWIS NORWOOD, Defendant-Appellant

Before:

THOMAS M. REAVLEY*, SENIOR CIRCUIT JUDGE, AND

RICHARD C. TALLMAN AND MILAN D. SMITH, JR.,

CIRCUIT JUDGES.

Opinion by:

JUDGE MILAN D. SMITH, JR.

*The Honorable Thomas M. Reavley, Senior United

States Circuit Judge for the Fifth Circuit, sitting by

designation.

Appeal from the United States District Court

for the Eastern District of Washington

Lonny R. Suko, District Judge, Presiding

AFFIRMED.

TRACY A. STAAB AND CHRISTINA HUNT, Federal

Defenders of Eastern Washington & Idaho,

Spokane, Washington, for the defendant-

appellant.

JAMES A. MCDEVITT AND K. JILL BOLTON, United

States Attorney, Spokane, Washington, for the

plaintiff-appellee.

MILAN D. SMITH, JR., Circuit Judge:

Defendant-Appellant Robert L. Norwood appeals

his jury conviction of possession of cocaine with

intent to distribute in violation of 21

U.S.C. § 841({aX1) and possession of a firearm in

furtherance of a drug trafficking crime in violation of

18 U.S.C. §924(cX1). On appeal, Norwood claims

violation of his Sixth Amendment right to confront

his accuser and violation of his duc process rights

both in trial and at sentencing. Norwood also claims

that the evidence was insufficient to convict him for

possession of a firearm in furtherance of a drug

trafficking crime. We have jurisdiction under 28

U.S.C. § 1291 and 18 U.S.C. § 3742, and we affirm

Norwuod’s conviction and sentence.

da

FACTUAL AND PROCEDURAL BACKGROUND

In April of 2006, police responded to a domestic

violence call in Spokane, Washington. Upon entering

the home, the police encountered Norwood in the

bedroom lying on his bed. They smelled marijuana,

and asked Norwood to step outside. In response to

police questioning, Norwood admitted he had “just

smoked a joint,” but denied having any other drugs

in the bedroom. The officers then arrested Norwood,

and while searching him discovered 0.86 grams of

crack cocaine and over $2500 dollars in his pockets.

After obtaining a warrant, the police searched

Norwood’s home and vehicle. In the car, police found

$7000 in cash, separated into $1000 tightly wrapped

bundles. In the bedroom, the police discovered two

baggies containing a total of 7.7 grams of cocaine

base and a digital scale dusted with drug residue

underneath the dresser next to the bed. Police also

found a wood box containing several “marijuana

blunts,” or butts of marijuana joints. In the closet,

police found 42.4 grams of harvested marijuana in an

ice cream box. Between the mattress and the box

spring of the bed, police found a 25 caliber

semiautomatic handgun. The police did not find any

other drug paraphernalia.

On August 2, 2007, Norwood was indicted in

federal district court on three counts: (1) being a

felon in possession of a firearm in violation of 18

U.S.C. §§ 922(g)(1) and 924(e); (2) possessing cocaine

with the intent to distribute in violation of 21 U.S.C.

§§ 841(aX1), 841(bX1XB), and 18 U.S.C. § 2; and (3)

possessing a firearm in furtherance of a drug

4a

trafficking crime in violation of 18 U.S.C. § 924(c\1).

The government eventually dismissed the first count

and proceeded to trial on the second and third

counts. Norwood made a Federal Rule of Criminal

Procedure 29 motion to dismiss at the close of the

government's case, another at the close of the

defendant’s case, and still a third following trial,

each of which was denied.

As part of its case-in-chief, the government

presented an affidavit prepared by Jodi Arndt, an

employee at the Washington Department of

Employment Security, which certified that “a

diligent search of the department’s files failed to

disclose any record of wages reported for [Norwood]

from January 1, 2004 through March 31, 2007.”

Although Arndt did not appear in person to testify,

the court admitted her affidavit as circumstantial

evidence that Norwood had no legal source for the

large amounts of cash that were found on his person

and in his car.

During closing argument, Norwood’s_ counsel

argued to the jury that the drugs found in Norwood’s

apartment were for personal use, and suggested that

Norwood had been smoking the crack through the

marijuana blunts that were found on the scene, but

which had not been seized or tested. The prosecutor

responded to the defense’s comments as follows:

“When we talk about those blunts, yeah, it would

have been real nice if the police got those. The police

didn’t get those, but they admitted that, but you

know what, the defendant didn’t tell them that he

was smoking the marijuana with the crack cocaine.”

The defense immediately objected and moved for a

5a

mistrial on the basis that Norwood’s right to silence

had been violated. The district court sustained the

objection and directed the jury not to consider the

prosecution’s comment. The court denied the motion

for a mistrial.

On October 31, 2007, the jury returned a verdict

of guilty on both counts. The district court sentenced

Norwood to 120 months in prison for Count 2 and 60

months for Count 3, to run consecutively. Norwood

appealed to this court.

STANDARD OF REVIEW

Norwood alleges that his Sixth Amendment right

to confront his accusers was violated when the

district court admitted into evidence a _ written

affidavit without requiring the affiant to testify on

the stand. We review admission of a declarant’s out-

of-court statements de novo to test for possible

violations of the Confrontation Clause. Lilly ov.

Virginia, 527 U.S. 116, 137 (1999).

Norwood also alleges that the prosecution’s

reference to the fact that he had not spoken with

police officers regarding possible use of cocaine in the

marijuana blunts violated his due process rights. We

review a claim that the prosecution’s comment has

violated the defendant’s right to silence de novo.

United States v. Bushyhead, 270 F.3d 905, 911 (9th

Cir. 2001). If the prosecution’s comment is

determined to be improper, we then apply harmless

error review. Id.

6a

Finally, Norwood argues that the evidence was

insufficient to convict him on the count of possession

of a firearm in furtherance of a drug trafficking

crime. When the defendant has moved for a

judgment of acquittal after the close of evidence, this

court reviews denial of the motion de novo. United

States v. Rios, 449 F.3d 1009, 1011 (9th Cir. 2006).

We will not overrule a conviction if “ ‘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.’ ” /d. (quoting Jackson v. Virginia,

443 U.S. 307, 319 (1979)).

DISCUSSION

A. Claimed Violation of the Norwood’s Sixth

Amendment Rights

The Sixth Amendment of the U.S. Constitution

guarantees an accused the right “to be confronted

with the witnesses against him.” U.S. CONST.

amend. VI. The Supreme Court has interpreted this

right to apply to out-of-court statements as well as

in-court testimony. Crawford v. Washington, 541

U.S. 36, 50-51 (2004). As the Court in Crawford

summarized, “[tlestimonial statements of witnesses

absent from trial have been admitted only where the

declarant is unavailable, and only where the

defendant has had a prior opportunity to cross-

examine.” Id. at 59.

The Supreme Court has yet to define the extent to

which rights under the Confrontation Clause are

applied to testimonial and nontestimonial

7a

statements. The opinion in Crawford traces the

history of the Sixth Amendment and _ identifies

“[s]ltatements taken by police officers in the course of

interrogations” as testimonial. Jd. at 51-52. However,

the Crawford Court declined to take up the issue of

nontestimonial statements, indicating only that “it is

wholly consistent with the Framers’ design to afford

the States flexibility in their development of hearsay

laws ...as would an approach that exempted such

[Inontestimonial] statements from Confrontation

Clause scrutiny altogether.” Id. at 68. The Court

then declined the opportunity “to spell out a

comprehensive definition of ‘testimonial,’ ” noting

only that the term would apply “at a minimum to

prior testimony at a preliminary hearing, before a

grand jury, or at a former trial; and te police

interrogations.” /d.

This Circuit has interpreted the Supreme Court’s

ruling in Crawford to allow the admission of

nontestimonial statements without scrutiny under

the Confrontation Clause. United States v.

Cervantes-Flores, 421 F.3d 825, 831 (9th Cir. 2005).

Our opinion in Cervantes-Flores also concluded that

a certificate of nonexistence of a record (CNR), which

contained language virtually identical to the affidavit

at issue here, is nontestimonial in nature because it

is similar to a business record. Jd. at 832 (citing

United States v. Rueda-Rivera, 396 F.3d 678, 680

(5th Cir. 2005) for the same conclusion). As we

explained,

[bly issuing the CNR, [the affiant] certified

that a record that the INS would keep in

the course of its regularly conducted

8a

activities did not exist in the agency’s files.

She certified this fact in the same manner

that she would certify that such a record

did exist in those files and that it was an

official record of the INS.

Id. Although we recognized that the CNR in

Cervantes-Flores was prepared for litigation, which is

“one of the circumstances that Crawford emphasizes

as a concern of the Sixth Amendment,” it addressed a

class of documents that were not prepared for

litigation, and were better classified as business

records. Jd. at 832-33. The CNR served merely to

inform the court that no public record kept in the

ordinary course of business could be found.

Cervantes-Flores controls this case. The affiant

here prepared a CNR indicating that there was no

record that Norwood had received taxable wages for

the period in question. Such a record would have

been among the business records of the Washington

State Employment Security Department kept in the

ordinary course of business, if Norwood had been

legally employed in Washington during that time.

Under the reasoning of Cervantes-Flores, the CNR in

this case is not testimonial and is admissible under

the Sixth Amendment.

Norwood urges this court to reconsider Cervantes-

Flores in light of the Supreme Court’s holding in

Davis v. Washington, 547 U.S. 813 (2006). Norwood

argues that Davis stands for the proposition that “a

certificate, created by a government employee for the

sole purpose of establishing a fact at trial, is clearly

testimonial.” However, Davis involved statements

Ya

garnered by police interrogation of domestic violence

victims who then failed to appear in court. According

to Davts:

Statements are nontestimonial when made

in the course of police interrogation under

circumstances objectively indicating that

the primary purpose of the interrogation is

to enable police assistance to meet an

ongoing emergency. They are testimonial

when the circumstances objectively

indicate that there is no such ongoing

emergency, and that the primary purpose

of the interrogation is to establish or prove

past events potentially relevant to later

criminal prosecution.

Davis, 547 U.S. at 822. Thus, the Davis Court limited

its holding to factual situations involving police

interrogation, and its holding does not undermine

this court’s ruling in Cervantes-Flores. Accordingly,

we affirm the district court’s decision to admit

Arndt’s affidavit.

B. Claimed Violation of Norwood’s Due Process

Rights at Trial and Sentencing

Norwood charges that his due process rights were

violated both at trial and at sentencing. First, h«

argues that comments made by the prosecution

during closing arguments violated his’ Fifth

Amendment right to silence. Second, he argues that

the allegedly arbitrary sentencing distinction

between crack and powder cocaine violates the Due

Process Clause of the Fifth Amendment as well as

the Eighth Amendment prohibition against cruel and

10a

unusual punishment. We address these arguments in

turn.

The Fifth Amendment protects a defendant’s

right to remain silent by assuring that “silence will

carry no penalty,” and that the prosecution cannot

use a defendant’s silence to imply guilt. Doyle v.

Ohio, 426 U.S. 610, 618 (1976). As acknowledged by

this court, “|tJhe privilege against self-incrimination

prevents the government’s use at trial of evidence of

a defendant’s silence — not merely the silence itself,

but the circumstances of that silence as well.”

Bushyhead, 270 F.3d at 913.

However, where “the prosecutor’s reference to the

defendant’s opportunity to testify is a fair response to

a claim made by defendant or his counsel,” there is

no Fifth Amendment violation. United States v.

Robinson, 485 U.S. 25, 32 (1988). In Robinson, the

defense counsel argued several times in his closing

argument that the government had denied Robinson

the opportunity to explain his actions. /d. at 27. The

prosecutor responded by indicating that Robinson

could have explained himself by testifying. The

Supreme Court ruled that Robinson’s Fifth

Amendment Rights were not thereby infringed

because this response did not “treat the defendant’s

silence as substantive evidence of guilt,” but rather

answered the defense’s claim that Robinson’s trial

was unfair. /d. at 31-32.

Similarly, in this case, the prosecutor mercly

responded to Norwood’s implication of investigative

misconduct. Defense counsel implied that there was

no evidence that Norwood had used crack cocaine

Lla

only because the police had failed to test the box of

marijuana blunts. The prosecutor’s comment was

made to defend the police officers’ decision not to test

the marijuana blunts, not to suggest that Norwood’s

silence was substantive evidence of his guilt.

We will not reverse a lower court’s conviction

~ ‘when a prosecutorial comment is a single, isolated

incident, does not stress an inference of guilt from

Silence as the basis for conviction, and is followed by

a curative instruction.’ ” United States v. Smith, 282

F.3d 758, 769 (9th Cir. 2002) (quoting United

States v. Tarazon, 989 F.2d 1045, 1051 (9th Cir.

1993)); see also United States v. Foster, 985 F.2d 466,

468 (9th Cir. 1993) (ruling that “there is no Doyle

violation if the district court promptly sustains a

timely objection to a question concerning post-arrest

silence, and gives a curative jury instruction”). In

this case, the prosecution’s allegedly violative

comment was a single incident in closing argument,

and as indicated above, served primarily to refute an

implhed claim of investigative carelessness. The

district court immediately sustained Norwood’s

objection to the comment and provided a curative

instruction. If any error existed on this record, it was

harmless. Based on these facts, we affirm Norwood’s

conviction

The Fifth Amendment also guarantees a

defendant the right to due process at sentencing.

Norwood argues that his sentence, authorized by 21

U.S.C. § 841(b), is cruel and unusual in violation of

the Eighth Amendment and based on an arbitrary

distinction that violates the Due Process Clause of

the Fifth Amendment. See Chapman v. United

12a

States, 500 U.S. 453, 465 (1991). Norwood

acknowledges that we have previously addressed this

issue in United States v. Harding, 971 F.2d 410 (9th

Cir. 1992). However, he raises the issue in this

appeal because “[nlo issue in the world of federal

sentencing has sparked more _ controversy or

engendered more criticism than the punishment

scheme for crack and powder cocaine.” Steven L.

Chanenson & Douglas A. Berman, Federal Cocaine

Sentencing in Transition, 19 FED. SENT. R. 291, 291

(2007).

Under this court’s precedent, Norwood must show

that there is not even a debatable basis for the

distinction between crack and powder cocaine in

order to successfully challenge Congress’ statutory

distinction between these two forms of cocaine base.

Harding, 971 F.2d at 413 (citing United States v.

Carolene Prods. Co., 304 U.S. 144, 154 (1938)). He

has failed to do so.

In his brief, Norwood cites a series of Special

Reports to Congress provided by the Sentencing

Commission for the past thirteen years. Although

these reports indicate that some of the alleged

differences between crack and powder cocaine cited

by Congress in 1986 have been scientifically

disproven, the reports still suggest that the two

forms have distinctive qualities and that there are

reasons for treating the two forms differently. See

United States Sentencing Commission, 2007 REPORT

TO CONGRESS: COCAINE AND FEDERAL SENTENCING

POLICY (May 2007).

l3a

As Norwood himself seems to acknowledge, in a

case such as this it is the role of Congress to alter the

relevant statutes, and we remain bound by the

statutes currently in effect so long as Congress has a

debatable rationale for preserving its rational-basis

distinction. Norwood has also failed to provide any

persuasive rationale for why his sentence should be

considered cruel and unusual under the Eighth

Amendment. Accordingly, we affirm Norwood’s

sentence.

C. Sufficiency of the Evidence

The standard of review for sufficiency of the

evidence to support a criminal conviction is well

established. The Supreme Court has long advised

that a reviewing court is not required to determine

whether it believes that the evidence at

trial established guilt beyond a reasonable

doubt. Instead, the relevant question is

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.

Jackson, 443 U.S. at 319 Gnternal citation omitted).

To obtain a conviction under § 924(c)(1), the

government must show that the defendant’s

possession of the firearm was “in furtherance” of his

drug crime. United States v. Lopez, 477 F.3d 1110,

1115 (9th Cir. 2007). As we noted in Rios, 449 F.3d at

1013, § 924(c)(11) was amended in 1998 to employ the

provision that the firearm be _ possessed “in

l4a

furtherance of? the drug trafficking crime. This

amendment superceded the previous standard that

the offender “use or carry” a firearm “during and in

relation to any .. . drug trafficking crime.” 18 U.S.C.

§ 924(c)(1) (1994), amended by 18 U.S.C. § 924(c)(1)

(Supp. IV 1998). The amendment sought to broaden

the scope of § 924(c){(1) t » include more conduct than

actually using or carrying the weapon during the

course of the drug trafficking offense. H.R. REP. No.

105-344, at 6 (1997). See also Rios, 449 F.3d at 1013-

14 (detailing the reasons behind the alteration,

including Congress’s disapproval of Bailey v. United

States, 516 U.S. 137 (1995) (defining “use” to require

active employment of a firearm)).

However, “mere possession of a firearm by an

individual convicted of a drug crime is not sufficient

for a rational trier of fact to convict” under

§ 924(cK1). Rios, 449 F.3d at 1012. A conviction is

only supported by sufficient evidence when the facts

“reveal a nexus between the guns discovered and the

underlying offense.” United States v. Krouse, 370

F.3d 965, 968 (2004). To prove this nexus, the

government must “illustrate through specific facts,

which tie the defendant to the firearm, that the

firearm was possessed to advance or promcte the

criminal activity.” Jd. at 967 (quoting H.R. R=p. No.

105-334, at 12 (1997)). Expert testimony inclicating

that drug traffickers “generally use firearms to

further their drug crimes” is not sufficient. Rios, 449

F.3d at 1014.

In cases where the underlying drug offense is

possession with intent to distribute, the government

has provided adequate evidence of a nexus between

15a

the firearm and the drug crime by showing that the

firearm is in the same room and “within easy reach”

of a “substantial quantity of drugs and drug

trafficking paraphernalia.” Krouse, 370 F.3d at 968;

see also Lopez, 477 F.3d at 1115 (“Because Lopez’s

drug crime was possession of cocaine with intent to

distribute, evidence’ establishing the ready

accessibility of the gun while he was in possession of

a distributable amount of cocaine satisfied the ‘in

furtherance’ requirement.”). In this case, while the

quantity of drugs is smaller and the circumstances

establishing a nexus are not as clear as those in

Krouse or Lopez, we cannot say that “[no] rational

trier of fact could have found the essential elements

of the crime beyond a reasonable doubt.” Jackson,

443 U.S. at 319.

The gun at issue in this case was found by the

police only a few feet from evidence that the jury

found sufficient to establish Norwood’s possession of

cocaine with intent to distribute conviction.

Specifically, the police found a digital scale, on which

drug residue and Norwood’s fingerprints were found,

and 7.7 grams of cocaine packaged in two “eight ball”

sizes, which both parties stipulated is a commercial

amount that could be sold on the street. In addition,

the police first discovered Norwood lying on top of

the mattress where the gun was hidden, with over

$2500 dollars in his pocket, along with a smaller

amount of cocaine, which witnesses testified could

still be considered a commercial amount. Given this

evidence, we affirm the district court’s ruling that “a

reasonable jury could infer that [Norwood] possessed

the firearm in furtherance of the trafficking of crack,

specifically to protect himself and his business.”

16a

Order Den. Mot. For J. of Acquittal, United States v.

Norwood, No. 06-091, (E.D. Wash. 2007).

AFFIRMED.

17a

[1]

IN THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF WASHINGTON

UNITED STATES OF AMERICA,

Plaintiff,

VS.

ROBERT LEWIS NORWOOD,

Defendant.

Case No. CR 06-091-LRS-1

Date: October 29th—31st, 2007

Spokane, Washington

Transcript of Jury Trial Proceedings

BEFORE THE HONORABLE LONNY R. SUKO

Appearances:

For the Plaintiff: Ms. Katherine Bolton

Assistant US Attorney

PO Box 1494

Spokane, Washington 99210

For the Defendant: Ms. Christina Hunt

Federal Public Defender

North Post

Suite 700

Spokane, Washington 99210

oe * *

18a

[219]

Richard Taylor/Direct Examination

* Kk

Q. All right. And are you concerned with whether or

not an individual is employed as you are looking at

the evidence in an investigation?

A. We will look at that as part of what we call

unexplained income.

Q. Okay.

MS. BOLTON: And, Your Honor, if 1 could approach

the witness?

THE COURT: You may.

Q. I have handed you what has been marked as

government’s Exhibit 20 for identification. This is an

exhibit you actually

{220}

obtained, is that right?

A. Yes, ma’am, it is.

Q. So are you familiar with that?

A. Yes, I am.

Q. Will you describe for the jury what it is?

19a

A. I requested a -- what we call an employment

securities check on the defendant, on Mr. Norwood,

reference any reported income within the State of

Washington.

Q. And how do you make that kind of a request for

information?

A. Well, it is done through a subpoena, but

fortunately for my office, we have an individual there

that I just ask her to do that for me.

Q. Okay. And this is, what is government’s Exhibit

20, is something you received back from the

Department of Employment Security?

A. Correct. It shows the Social Security number.

Employment is reported by Social Security number.

Q. Okay. And is that a certified copy? There is two

pages there to that document, is there a certification

that authenticates that as the document on file with

the Department of Employment Security?

A. Yes, there is.

MS. BOLTON: Your Honor, the government moves to

admit Exhibit 20.

[221]

Ms. Hunt: Your Honor, | would object in that it is not

only hearsay, but there is a proffered issue with it.

So there is a Sixth Amendment confrontation

problem.

20a

THE COURT: The inability to cross-examine the

information therein.

MS. BOLTON: Your Honor, it is a_ certified

document. I have set forth actually in the exhibit list

I have provided to the court, the Rules of Evidence

under which it is admissible.

It 1s a self authenticating document pursuant to

Federal Rule of Evidence 902[(4)], and is admissible

pursuant to Federal Rule of Evidence 803[(10)] in the

event of some hearsay objection.

MS. HUNT: Well, neither of those reach the

proffered objection, Your Honor.

THE COURT: Thank you. Give me just a moment. I

am going to overrule the objection. I will admit it at

this time.

(Exhibit 20 received)

Q. I am going to see here if I can pull it up. That is

government Exhibit 20, is that right?

A. Yes, ma’am.

Q. I can’t pull it up --

MS. BOLTON: Excuse me, if I could approach the

witness, Your Honor?

THE COURT: You may.

2la

Q. And can you see that there in front of the screen —

on

the screen in front of you?

A. Yes, ma’am, J can.

Q. And that is government’s Exhibit 20, right?

A. It is the top half, yes, and the first of two pages.

Q. All right. Let’s see if we can zoom out. The bottom

half there just has the exhibit number?

A. Correct, on this page and then the back page has

the certification.

Q. That second page there is just the certification by

Jody Arndt who is with the Department of

Employment Security?

A. Yes, ma’am.

Q. And will you read for us into the record what that

document says, government’s Exhibit 20?

MS. HUNT: Well, Your Honor, the document speaks

for itself.

THE COURT: I think it does.

22a

[LOGO]

Employment Security Department

WASHINGTON STATE

PO Box 9046 Olympia, WA 98507-9046

CERTIFICATION

RE: ROBERT NORWOOD

SSN: 538-56-8614

I, Jody Arndt, Assistant Records Officer, of the

Employment Security Department, of the State of

Washington and custodian of the department

records, do hereby certify that a diligent search of the

department’s files failed to disclose any record of

wages reported for the above named individual from

January 1, 2004 through March 31, 2007.

Dated on August 8, 2007.

/s/ Jody Arndt

Jody Arndt

STATE OF WASHINGTON

COUNTY OF THURSTON

On August 8, 2007, personally appeared before me,

Jody Arndt, to me known to be the Assistant Records

Officer for the Employment Security Department.

/s/ Shalina Rae Combes

Notary Public in and for the

State of Washington

Residing at County of Thurston

My Commission Expires 2010

[NOTARY PUBLIC SEAL]