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

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Petition for Writ of Certiorari
- **Published:** January 1, 2009

## Text

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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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.”

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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]

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386017_0764%3A1. Public record. Not legal advice.