Petition for Writ of Certiorari — Norwood v. United States

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Supreme Court US.

‘mee No. ___--- )-72)- 2.9. 700

OFFICE OF THE CLERK

IN THE

upreme Court of the Hnited States

A ARB at

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

PETER R. JORDAN TYLER B. ROBINSON

SIMPSON THACHER Counsel of Record

& BARTLETT LLP SIMPSON THACHER

1999 Avenue of the Stars, 29th Floor & BARTLETT LLP

‘Los Angeles, California 90067 CityPoint

(310) 407-7500 One Ropemaker Street

pjordan@stblaw.com London EC2Y 9HU

England

+44-(0)20-7275-6 1158

trobinson@stblaw.com

Attorneys for Petitioner Robert Lewis Norwood

Il.

ILI.

[V.

QUESTIONS PRESENTED

Whether the Ninth Circuit erred in finding

harmless error where the trial court admitted

into evidence an affidavit in violation of the

Sixth Amendment which = served as a

centerpiece of the Government's case 1n chief.

Whether the evidence was sufficient to support

Mr. Norwood’s conviction for possession of a

firearm in furtherance of a drug trafficking

crime when there was no evidence that

Mr. Norwood dealt drugs from the bedroom in

which the gun was found.

Whether Mr. Norwood’s Due Process Rights

were violated when the prosecutor commented

on his pest-arrest silence during closing

arguments.

Whether the crack cocaine — sentencing

disparity is unconstitutional.

PARTIES TO THE PROCEEDINGS BELOW

The Petitioner in this ease is Robert Lewis

Norwood.

The Respondent in this case is the United

States of America

TABLE OF CONTENTS

Page

QUESTIONS PRESENT BD voicceccccssscccsssecsssesssssscceessss i

PARTIES TO THE PROCEEDINGS BELOW .......... ll

TABLE OF AUTHORITIES ociciscscossscsssssnevecsvsvaccsccsies v1

OPINIONS AND ORDERS BELOW.......................... 1

Fe BE iki sven aaa en 2

RELEVANT CONSTITUTIONAL AND

STATUTORY PROVISIONS .............. Reecareanecas 2

STATEMENT OF THE CASE. .............c0..ss000sesesneccseee 4

REASONS FOR GRANTING THE PETITION......... 8

L. CERTIORARI SHOULD BE GRANTED

BECAUSE THE NINTH CIRCUIT ERRED

IN FINDING HARMLESS ERROR WHERE

THE TRIAL COURT ADMITTED INTO

EVIDENCE AN AFFIDAVIT IN

VIOLATION OF THE SIXTH

AMENDMENT WHICH SERVED AS A

CENTERPIECE OF THE

GOVERNMENT'S CASE IN CHIEF............... 8

JI. CERTIORARI SHOULD BE GRANTED

BECAUSE THE EVIDENCE WAS

INSUFFICIENT TO SUPPORT

MR. NORWOOD'S CONVICTION FOR

POSSESSION OF A FIREARM IN

FURTHERANCE OF A DRUG

TRAFFICKING CRIME WHEN THERE

Il.

IV.

WAS NO EVIDENCE THAT

MR. NORWOOD DEALT DRUGS FROM

THE BEDROOM IN WHICH THE GUN

ee NE itianscees schtick srcisicsasencnaiocnsaneesss 16

CERTIORARI SHOULD BE GRANTED

BECAUSE MR. NORWOOD'S DUE

PROCESS RIGHTS WERE VIOLATIED

WHEN THE PROSECUTOR

COMMENTED ON MR. NORWOOD'S

POST-ARREST SILENCE DURING

CLOSING ARGUMENTS. ....................ecscesseees 19

CERTIORARI SHOULD BE GRANTED TO

REMOVE THE UNCONSTITUTIONAL

DISPARITY BETWEEN CRACK AND

POWDER COCAINE, WHICH VIOLATES

DUE PROCESS PRINCIPLES AND THE

EIGHTH AMENDMENT.................ssessscceeeees 21

Se PUN Te eR oo goons sco c aca cdasakdy cad sasatusiansscaceeunavsucs 25

APPENDIX

Order and Amended Opinion of the United

States Court of Appeals for the Ninth

Circuit, dated April 1, 2010..........:..cceccscossesee la

Opinion of the United States Court of Appeals

for the Ninth Circuit, dated

UNI 8 0 SIO ion scevcccvedacsackdaakcanionsssnsveeis 18a

Order of the Supreme Court of the United

States, dated November 2, 2009.................. 34a

Opinion of the United States Court of Appeals

for the Ninth Circuit, dated

SP i I ray senitniasancasanntaeencs 36a

Order of the United States District Court for

the Eastern District of Washington,

dated December 28, 2007............ccscecssccsrsvees dla

TUBER CER OT IG BOOTIE ov isics ccisisicnstsccsececveticvessscaes 56a

Washington State Employment Security

EPO OTEIOTE FATIIII VG oe cvncccssicsceccscosecvvecsavevens 8la

TABLE OF AUTHORITIES

Cases

Berger v. United States,

Be Te AMEE se isedsnvevevcssiverecsess

Chapman vy. California,

2 eS el.)

Crawford v. Washington,

ee re, he Ce canitciassscessccssscsnacs

Darden v. Wainwright,

ei a! 6.) Ere

Davis v. Washington,

yes Bb os |

Delaware v. Van Arsdall,

Fy OE, OTS CLO) visisenisescsccsconssess

Donnelly v. DeChristoforo,

Phe Oo eve yy? |

Doyle v. Ohio,

Re OT 0 CLO TED once ccsecceccccssecses:

Jackson v. Virginia,

BRS ET, BOT CITED onic vccccsccccccccccess

Melendez-Diaz v. Massachusetts,

557 U.S. __, 129 S. Ct. 2527 (2009)

United States v. Krouse,

370 F.3d 965 (9th Cir. 2004)

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Page(s)

8, 9, 10

iinueiesrersiauiae 8,9

seeeciuaeeewierines 9, 10

cuephavivavnaeencancans 20

aa veateubeenens 20, 21

8,9, 16

United States v. Lopez,

477 F.3d 1110 (9th Cir. 2007)......................... 18, 19

United States v. Mann,

389 F.3d 869 (9th Cir. 2004) ...... 00... cc cc cececececeeee cee: 16

United States v. Nguyen,

565 F.3d 668 (9th Cir. 2009)................00..scccccesseeee 15

United States v. Norwood,

555 F.3d 1061 (9th Cir. 2009)..............00.0.0.0cccccee ey

United States v. Norwood,

595 F.3d 1025 (9th Cir. 2010)....................... 2, 4, 10

United States v. Olano,

Be te Fe ED va vc cvscocicnocaccavaseecececcveseccovenavasens 1$

United States v. Rios,

449 F.3d 1009 (9th Cir. 2006)................... 16, 17,18

United States v. Velarde-Gomez,

269 F.3d 1023 (9th Cir. 2001)..............c.c2ccceccesseees 15

U.S. Constitution

MG ai nines sc nae) 0aada ceded cased oseesubeudusaneseincatansensvadens 2

PN BE oo cic siden cxnineuncoscodedeesinlendnivanssdaraanemlaaaee 2

Statutes

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SST BORE ee kisviintiscccnicooie ee

a ie ihcceencdeces 4,19

Be, OD evesarvconcvasavesarcecassncessvecocscbes 3, 4, 16

Oe oie osccchasaxcovavacevaseonseeussoseenuvs 16, 21

a Oe passe cs aascnscdsaneciasnsieasncsesenevaeiivans 2]

a de soos chase cennosaogavabintatevineoaia 2

ra sa ives dusvssanveasioneons 2

Other Authorities

BER. REP. NO. 105-36 (1007) «...0:c0cccsccccsescsecssrccseasse. 18

Restoring Fairness to Federal Sentencing:

Addressing the Crack-Powder Disparity:

Hearing Before the S. Comm. on the Judiciary

Subcomm. on Crime and Drugs, 111‘ Cong.

(statement of Lanny A. Breuer, Assistant Att’y

Gen., Criminal Division, United States

Department of Justice) (2009) ....... ee cceeeeeeeeeeee: 24

Steven L. Chanenson & Douglas A. Berman,

Federal Cocaine Sentencing in Transition,

19 FED. SENT'G REP. 291 (2007) ........ccsscssccocesesocees 21

UNITED STATES SENTENCING COMMISSION, 1995

SPECIAL REPORT TO CONGRESS: COCAINE AND

FEDERAL SENTENCING POLICY vi (1995)................ 22

UNITED STATES SENTENCING COMMISSION, 2002

REPORT TO CONGRESS: COCAINE AND FEDERAL

SENTENCING POLICY 91 (2002) ..........-.cccecceeeees 22, 23

UNITED STATES SENTENCING COMMISSION,

PRELIMINARY CRACK COCAINE RETROACTIVITY

ee ot owe ge Eb | 23

In The Supreme Court of the Anited 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

Petitioner, Robert L. Norwood respectfully

prays that a writ of certiorari issue to review the

opinion of the United States Court of Appeals for the

Ninth Circuit, entered on April 1, 2010.

OPINIONS AND ORDERS BELOW

Following a jury trial, Robert Norwood was

convicted of possession of cocaine with intent to

distribute and possession of a firearm in furtherance

of a drug trafficking crime, and was sentenced to

imprisonment for 120 months and 60 months, to run

consecutively. App. 79a. Mr. Norwood timely

appealed his conviction and sentence. The Ninth

Circuit issued an opinion affirming the conviction

and sentence in United States v. Norwood, 555 F.3d

1061 (9th Cir. 2009), attached hereto as App. 36a—

50a. This Court granted Mr. Norwood’s subsequent

Petition for Certiorari, vacated the Ninth Circuit’s

judgment, and remanded the case for further

consideration in light of Melendez-Diaz v.

Massachusetts, 557 U.S. __, 129 S. Ct. 2527 (2009).

On remand, the Ninth Circuit issued an opinion

again affirming the conviction and sentence in

United States v. Norwood, 595 F.3d 1025 (9th Cir.

2010), attached hereto as App. 18a—83a. Following

Mr. Norwood’s Petition for Rehearing and/or

Rehearing En Banc, the Ninth Circuit issued an

amended opinion and denied Mr. Norwood’s petition

in United States v. Norwood, 603 F.3d 1063 (9th Cir.

2010), attached hereto as App. la—17a.

JURISDICTION

The Ninth Circuit Court of Appeals affirmed

petitioner’s conviction and sentence. The Court of

Appeals had jurisdiction pursuant to 28 U.S.C. §

1291. The jurisdiction of this Court is invoked

pursuant to Title 28, United States Code, section

1254(1).

RELEVANT CONSTITUTIONAL AND

STATUTORY PROVISIONS

The Fifth Amendment to the United States

Constitution provides, in pertinent part:

No person shall be . . . subject for the same

offence to be twice put in jeopardy of life or

limb ... nor be deprived of life, liberty, or

property, without due process of law... .

The Sixth Amendment to the United States

Constitution provides, in pertinent part:

In all criminal prosecutions, the accused

shall enjoy the right . . . to be confronted

with the witnesses against him... .

Section 841 of Title 18 of the U.S. Code

provides, in pertinent part:

(a) Unlawful acts

Kxcept as authorized by this

subchapter, it shall be unlawful for

any person knowingly or

intentionally

(1) to manufacture, distribute, or

dispense, or possess with intent

to manufacture, distribute, or

dispense, a controlled substance.

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

provides, in pertinent part:

(c)O)(A) Except to the extent that a greater

minimum sentence is otherwise provided

by this subsection or by any other provision

of law, any person who, during and in

relation to any crime of violence or drug

trafficking crime (including a crime of

violence or drug trafficking crime that

provides for an enhanced punishment if

committed by the use of a deadly or

dangerous weapon or device) for which the

person may be prosecuted in a court of the

United States, uses or carries a firearm, or

who, in furtherance of any such crime,

possesses a firearm, shall, in addition to

the punishment provided for such crime of

violence or drug trafficking crime (i) be

sentenced to a term of imprisonment of not

less than 5 years

STATEMENT OF THE CASE

Robert Lewis Norwood was convicted at trial

of possession with intent to distribute cocaine (8

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

furtherance of druy trafficking 18 U.S.C. § 924(c)).

At trial, Mr. Norwood stipulated that he possessed

the drugs and, through his attorney, admitted that

he was a drug user but denied that he was a drug

dealer or that he possessed a gun in furtherance of

drug trafficking.

‘The Government's evidence of drug dealng

was sparse and entirely circumstantial. Indeed, the

district court characterized the Government’s case as

“closer to the edge rather than heavy duty.” App.

75a The Government acknowledged that the

quantum of drugs recovered from Mr. Norwood was

relatively small, but it argued that the jury should

infer drug dealing from the large amount of cash Mr.

Norwood possessed at the time of his arrest, coupled

with his alleged lack of legitimate income.

In order to prove the second half of its

argument—that Mr. Norwood had no. source of

legitimate income to account for the money found in

his possession—the Government offered — into

evidence an affidavit from an employee of the State

of Washington who 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 the three years preceding his arrest

Norwood, 595 F.3d at 1028; App. 5a. At the same

time, Mr. Norwood’s ex-girlfriend testified that Mr.

Norwood did in fact have legitimate income during

the relevant period. App. 67a—74a. Specifically, she

testified 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. Id.

Meanwhile, the Government offered no direct

evidence of Mr. Norwood's alleged drug dealing.

There were no witnesses who claimed to have

purchased drugs from Mr. Norwood, nor were there

any witnesses claiming to have observed Mr.

Norwood selling drugs. Nevertheless, the

Government argued that Mr. Norwood must have

possessed the gun found under his mattress in

furtherance of drug trafficking because the gun was

found in proximity to the drugs Mr. Norwood had

stipulated to possessing for his personal use.

On appeal, in addition to challenging the

sufficiency of the evidence on the firearm conviction,

Mr. Norwood contended that the trial court violated

his Sixth Amendment right to confront any witnesses

against him by admitting testimonial evidence of his

employment history through the declaration of a

non-testifying witness. Norwood, 603 F.3d at 1067:

App. 6a. Mr. Norwood also argued that the district

court abused its discretion by not declaring a mistrial

after the prosecutor argued in closing that Mr.

Norwood had failed to tell the police that his

marijuana “blunts” were laced with crack cocaine.

Id. at 1067-68; App. 6a. Finally, in order to preserve

issues for Supreme Court review, Mr. Norwood

challenged the constitutionality of his mandatory

minimum sentence for crack cocaine. Id. at 1070-71.

App. 12a—138a.

The facts of the case are as follows: Police

responded to a domestic violence call at the residence

of Mr. Norwood’s ex-girlfriend, Rebecca Holiday,

where they found Mr. Norwood lying on a bed. Id. at

1066: App. 4a. The police smelled marijuana and

Mr. Norwood admitted that he had just smoked a

Soint,” at which point the police arrested him and

conducted a search incident to arrest. Jd. Police

retrieved 0.86 grams of crack cocaine and $2,531 in

cash from Mr. Norwood’s pants pocket. Id.

In Mr. Norwood’s vehicle, police found a duct

tape ball containing $7,000 in cash, separated into

$1,000 bound rolls, but no drugs. /d. at 1067: App.

4a. In Mr. Norwood’s bedroom, police found a metal

plate and digital scale with drug residue and two

baggies containing 7.7 grams of crack cocaine. Id.

Police also found a wood box with several burned

marijuana blunts. Jd. Police did not seize the box or

the blunts, nor did they test the blunts for traces of

crack cocaine. Jd. Between the mattress and box

spring, police found a .25 caliber handgun. 7d.

At trial, Ms. Holiday testified that at the time

of his arrest, Mr. Norwood was smoking marijuana

on a daily basis using a “blunt,” or marijuana

wrapped in cigar paper. App. 62a- 64a. While she

had never seen Mr. Norwood sell or use crack

cocaine, she suspected that he had recently begun

smoking crack because of his irrational behavior. Id.

A detective from the Washington State Patrol

was allowed to testify regarding the quantum of

drugs typically characterized as a “user” amount.

App. 58a—-6la. The detective acknowledged that 7.7

grams of cocaine, the amount found in Mr. Norwood's

bedroom, constituted a “user” amount and that crack

cocaine could be added to marijuana and smoked in

that manner. Id.

With respect to Mr. Norwood’s income, Ms.

Holiday testified that Mr: Norwood did not keep a

bank account. App. 68a—74a. He worked part-time

cleaning rental properties, gambled successfully, and

had recently received a significant retirement check.

Id. Meanwhile, the detective from the Washington

Stute Patrol testified that he had received the

disputed affidavit from an employee at the

Washington Department of Employment Security

indicating that a diligent search had been conducted

that produced no record of legitimate income for Mr.

Norwood for the three years immediately preceding

his arrest. App. 81a.

Following Mr. Norwood’s’ conviction, the

district court imposed a mandatory minimum

sentence of 10 years for Mr. Norwood’s conviction for

possession with intent to distribute cocaine base,

plus a mandatory minimum five years, to be served

consecutively, for his conviction on possession of a

firearm in furtherance of drug trafficking. Norwood,

555 F.3d at 1065; App. 6a, 79a. While

acknowledging that 1t was bound by these mandatory

sentences, the district court indicated that if it had

discretion, it might consider a different sentence,

noting that Mr. Norwood’s prior offense was more

than 10 vears old and he would be 68 years old when

he was released under the mandatory minimum

sentences. App. 79a.

REASONS FOR GRANTING THE PETITION

a Certiorari Should be Granted because the

Ninth Circuit Erred in Finding Harmless

Error Where the Trial Court Admitted into

Evidence an Affidavit in Violation of the Sixth

Amendment Which Served as a Centerpiece of

the Government’s Case in Chief

Over the last seven years, this Court has

reinforced the right of criminal defendants to

confront any witnesses against them. See Melendez-

Diaz, 129 S. Ct. 2527: Davis v. Washington, 547 U.S.

813 (2006); Crawford v. Washington, 541 U.S. 36

(2004). However, this right comes to little where an

appellate court finds harmless error even when

unconstitutionally admitted evidence 1s made a

centerpiece of the Government’s case against a

defendant. The Ninth Circuit panel below reached

just such a conclusion. After prosecutors built their

case largely around an affidavit that even the

Government concedes was admitted in violation of

the Sixth Amendment, the Ninth Circuit found that

wrongful admission to be “harmless.”

This miscarriage of justice was made possible

by the Ninth Circuit’s improper application of the

harmless error standard set out by this Court in

Chapman v. California, 386 U.S. 18 (1967).

Specifically, the Ninth Circuit effectively substituted

the more lenient “sufficiency of the evidence”

standard from Jackson v. Virginia, 443 U.S. 307

(1979) in place of the Chapman standard and then,

when apprised of its mistake, simply amended the

language of its decision without altering its analysis.

As a result, the Ninth Circuit stood by its

harmlessness finding despite the significance of the

evidence that all sides acknowledge was wrongfully

admitted.

Consequently, here, for the first time since its

ruling in Melendez-Diaz, this Court has an

opportunity to address when the admission without

confrontation of testimonial evidence in the form of

an affidavit constitutes harmless error, particularly

when that evidence is central to the prosecution’s

ease. See Melendez-Diaz, 129 S. Ct. at 2542 n.14;

Davis, 547 U.S. at 829; Crawford, 541 U.S. at 42 n.1.

When evidence has been unconstitutionally

admitted, reversal on direct appeal is not a question

of whether the error was “outcome determinative,”

or even whether it “created a reasonable possibility

that the jury returned an inaccurate guilty verdict.”

Delaware v. Van Arsdall, 475 U.S. 673, 679-80, 684

(1986). Instead, reversal is required unless the

Government “provels] beyond a reasonable doubt”

that the error in question did not even “contribute to

the verdict obtained.” Chapman, 386 U.S. at 24

(emphasis added). Chapman's demanding standard

lies in stark contrast to the sufficiency of the

evidence standard articulated in Jackson, which

merely asks whether, considering “the evidence in

the hght most favorable to the prosecution, any

rational trier of fact could have found the essential

elements of the crime beyond a reasonable doubt.”

ackson, 443 U.S. at 319.

Initially, the Ninth Circuit explained that the

admission of the affidavit was harmless error

because “disregarding the affidavit entirely, the

evidence against Norwood on the elements of the

offense of possession of cocaine base with intent to

distribute was sufficient to establish his guilt beyond

any reasonable doubt.” Norwood, 595 F.3d at 1031;

App. 26a. This language closely tracks the lesser

standard set out in Jackson. Mr. Norwood

highhghted the crror in the court’s analysis in his

Petition for Rehearing And/Or Rehearing En Banc.

In response, the Ninth Circuit “amended” its opinion,

but did so only by tweaking its language—not its

analysis—to suddenly conform to the more

demanding Chapman standard.

Notwithstanding its “swapping out” of the

appropriate standard from Chapman, the Ninth

Circuit’s analysis and conclusion cannot be squared

with the reality of what transpired at trial. Indeed,

the record in this case forecloses any possibility that

the constitutional violation at Mr. Norwood's trial

was “so unimportant and insignificant” as to be

“harmless beyond a reasonable doubt.” Chapman,

386 U.S. at 22, 24. Specifically, the significance of

the wrongfully admitted affidavit is borne out by (i)

the affidavit’s centrality to the Government’s effort to

prove one of the key issues at trial (whether Mr.

Norwood had a legitimate source of income); (ii) the

absence of evidence corroborating the affidavit (on

the contrary, the affidavit was contradicted by a

defense witness); and (iii) the overall weakness of the

Government’s theory that Mr. Norwood was a

narcotics dealer and not just a narcotics user. See

Van Arsdall, 475 U.S. at 684 (setting out factors

relevant to harmlessness inquiry).

There was never any dispute that Mr.

Norwood possessed the narcotics in question. The

issue at trial was whether Mr. Norwood was merely

a narcotics user (as the defense contended) or

whether he was a_enarcotics dealer (as the

Government argued). The consequences of that

distinction are devastating. With a firearm at the

scene, the conviction on the possession-with-intent-

to-sell charge carried a_ statutory mandatory

minimum sentence of fifteen years in federal prison,

whereas a conviction for the lesser included offense

of mere possession would have yielded a fraction of

that penalty. As noted above, the Government

introduced no direct evidence that Mr. Norwood sold

narcotics. No witness claimed to have purchased

narcotics from him. No witness claimed to have

observed him selling narcotics to others. See, e.g.,

App. 54a (District Court’s post-trial observation that

“there was no direct evidence that anyone ever

purchased drugs from the Defendant or saw him sell

drugs”). Rather, the Government’s case rested on

two pieces of circumstantial evidence. The first was a

small digital scale with narcotics residue.

Referencing testimony by one of the Government's

witnesses, defense counsel argued that Mr. Norwood

used the scale to weigh narcotics that he purchased

for his own use:

Something else [Detective] Taylor

said that was very interesting. lle said

[that] dealers weigh [narcotics] because

they don’t want to short anybody,

because if you short someone, if you

short your customer, you could be in a

world of hurt.

Well, now, how would a customer

know if he has been shorted unless he

weighed it. He would have to weigh it to

know he had been shorted.

So why is it inconceivable that a

user would have a scale? ... Especially

if you are buying’ Costco _ style

marijuana.

App. 77a (Defense’s closing argument).

The second piece of circumstantial evidence on

which the Government’s case rested was the cash

found in Mr. Norwood’s vehicle and on his person at

the time of his arrest. The Government argued that

this cash was proof that Mr. Norwood was a narcotics

dealer—a theory that depends, at a minimum, on Mr.

Norwood having no legitimate source of income. To

establish that necessary logical predicate, the

Government introduced the disputed affidavit of the

Washington state employee, rather than calling a

witness to testify at trial. Norwood, 603 F.3d at

1067; App. 5a. The employee claimed in her affidavit

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

three years preceding his arrest. Jd. The affidavit

provides no information concerning the type of wages

that may not be reported to the Department of

Employment Security, such as cash income earned

“under the table,” gambling winnings, or retirement

plan distributions. Nor does the affidavit describe

how the employee conducted the search.

The unlawfully admitted affidavit was a

centerpiece of the Government’s case throughout

trial, as previewed in the Government’s opening

statement:

One of the bits of evidence you

will hear about in this case is that for

all of us who work legitimate jobs, our

employers report our income to what is

called the Department of Employment

Security.

So they tell the State of

Washington, okay, this person is

employed, here is how much they made

this year. Those records for’ the

defendant showed that he hadn’t had a

job, no legitimate reported income, since

2004.

App. 57a (Government’s opening statement).

To rebut the Government’s contention that Mr.

Norwood had no legitimate source of income, the

defense called Mr. Norwood’s girlfriend, Ms. Holiday,

to the stand. Ms. Holiday testified that she never

knew Mr. Norwood to sell narcotics, App. 64a—66a,

and she offered three plausible explanations for the

cash found in his possession:

First, Ms. Holiday testified that prior to Mr.

Norwood’s arrest, he was in possession of a $5,000

retirement check from his former employer. App.

67a—74a.

Second, Ms. Holiday testified that Mr.

Norwood gambled “[a]t least once a week,” and he

was “[mlore successful than not” when he gambled.

Id. She further testified that Mr. Norwood used his

gambling winnings to pay bills and was saving his

winnings to pay for his daughter to fly in from

Australia to visit him. Id.

Third, Ms. Holiday testified that Mr. Norwood

worked part-time at cleanup jobs for which he may

have been paid in cash. Id.

The Government’s closing argument to the

jury again emphasized the inexplicable source of the

cash, claiming that there was no source for that

income other than drug trafficking:

What we introduced to you was

evidence that the Department of

Employment Security when someone

works a legitimate job, employer [sic]

reports their income and there is

evidence that they have been employed

for a period of time.

We know from the evidence in

this case and what was introduced as to

the defendant, that he hasn’t worked in

a legitimate job in Washington State

since at least 2004.

So how is it that you don’t have a

job since 2004, you have got a house,

you have got a couple of cars, you have

got drugs, you have got a gun, you have

got kids apparently you are paying for,

and you have got that much cash?

Just inexplicable. There has been

no reasonable explanation for that

except that he was involved in drug

trafficking. ... There is no evidence that

he was out earning a legitimate income

anywhere.

App. 76a (Government’s closing argument).

The jury deliberated for nearly five hours

longer than the sum total of testimony by all eight

trial witnesses. The jury sent two notes to the Court

prior to announcement of the verdict. The second

note in particular (sent after nearly four hours of

deliberations) concerned the distinction between

using narcotics and dealing narcotics: “Please give us

the definition of ‘distribution.’ Does distributing

have to involve a monetary exchange?”

There can be no assurance (and certainly no

assurance “beyond a reasonable doubt”) that the

unlawfully admitted evidence did not influence the

jury's verdict. See, e.g., United States v. Velarde-

Gomez, 269 F.3d 1023, 1035—36 (9th Cir. 2001) (en

banc) (refusing to find harmless error even where the

alternative theory proffered by the defense was “not

necessarily compelling”); United States v. Nguyen,

565 F.3d 668, 675 (9th Cir. 2009) (“While the jury

could have concluded that [the defendant] knew the

litems] were stolen absent the [improperly admitted]

hearsay testimony, the government has not proven

that the jury would have so concluded beyond a

reasonable doubt.”). It follows that the Ninth Circuit

erred in concluding that the admission of the

affidavit was harmless error when it engaged in an

analysis perhaps proper to a sufficiency of the

evidence inquiry under Jackson but entirely out of

place in a Chapman harmless error analysis.

In order to rectify the Ninth Circuit’s error,

and to clarify the proper application of Chapman's

harmless error analysis to the unconstitutional

admission of testimonial evidence against a criminal

defendant in light of this Court’s recent ruling in

Melendez-Diaz, this Court should grant certiorari.

See United States v. Olano, 507 U.S. 725, 731 (1993)

(granting certiorari in order to clarify the proper

application of error analysis on appeal).

II. Certiorari Should be Granted because the

Evidence Was Insufficient to Support

Mr. Norwood’s Conviction for Possession of a

Firearm in Furtherance of a Drug Trafficking

Crime When There was No Evidence That

Mr. Norwood Dealt Drugs from the Bedroom

in Which the Gun Was Found

Mr. Norwood’s conviction included possession

of a firearm in furtherance of a drug trafficking

crime in violation of 18 U.S.C. 924(c). As a result,

the district court was required to impose a

mandatory five-year sentence, consecutive to the ten-

year mandatory minimum under 21 U.S.C. § 841(b).

However, there was absolutely no evidence that Mr.

Norwood possessed the firearm “in furtherance of”

the alleged dealing. The central question in

assessing whether a_ constitutionally sufficient

quantum of evidence was produced 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.

Under Section 924(c)(1)(A), the Government

was required to show that Mr. Norwood was

trafficking crack cocaine and possessed the gun in

furtherance of that crime. United States v. Rios, 449

F.3d 1009, 1012 (9th Cir. 2006). Simple possession of

a gun by an individual convicted of a drug trafficking

crime is not enough. Id. (citing United States v.

Mann, 389 F.3d 869, 879-80 (9th Cir. 2004), and

United States v. Krouse, 370 F.3d 965, 967 (9th Cir.

2004)). “Instead, the government must show that the

defendant intended to use the firearm to promote or

facilitate the drug crime.” Jd. This intent is

demonstrated by showing a nexus between the gun

recovered and the drug trafficking crime. /d.

Police found a firearm in Mr. Norwood’s

bedroom, under the mattress, a few feet from a “user

amount” of crack cocaine. Norwood, 603 F.3d at

1067, 1072. The Government's own expert admitted

that 7.7 grams of crack was the equivalent of a

quarter ounce, an amount commonly purchased by

drug users. App. 58a—60a. And, although police

found a scale in Mr. Norwood’s bedroom, there was

no other evidence that Mr. Norwood had ever stored

a larger amount of drugs there. Nor was there any

evidence of packaging materials in the room.

The only evidence that Mr. Norwood was

dealing drugs at all was the money found on his

person and in his car. There was no evidence that

Mr. Norwood had ever sold drugs from his room or,

more specifically, while he was armed with the

firearm. Indeed, Mr. Holiday testified that she had

never seen Mr. Norwood deal crack cocaine

anywhere, much less in the house. App. 62a 65a.

When it amended the statute in 1998 to add

the “in furtherance of’ provision, Congress

specifically noted that the provision:

requires the government to “clearly show

that a firearm was possessed to advance or

promote the commission of the underlying

offense. The mere presence of a firearm in

an area where a criminal act occurs is not a

sufficient basis for imposing this particular

mandatory sentence Rather, the

yovernment must illustrate through

specific facts, which tie the defendant to

the firearm, that the firearm was possessed

to advance or promote the criminal

activity.”

Rios, 449 F.3d at 1013 (quoting H.R. Rep. No. 105

344, at 6 (1997)).

No such “specific facts” were present. Instead,

the Government's case was based entirely upon the

general notion that drug dealers possess guns tor

protection and intimidation Such speculative

“evidence” could support a conviction in any case

where a drug dealer possessed a firearm; such a

result was not the Congressional intent underlying

the statute. Id. at 1014

In upholding the sufficiency of this evidence,

the Ninth Circuit relied on Krouse, 370 F.3d at 968,

for the proposition that the Government has

provided adequate evidence of a nexus between 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.” However, Krouse is

profoundly distinguishable from this case: the

defendant in Krouse was found with 86.5 grams of

cocaine and almost 150 pounds of marijuana. IZJd. at

966. Mr. Norwood, on the other hand, was found

with an amount the Government’s own expert

testified was consistent with mere personal use. !

' The Ninth Circuit also cited United States v. Lopez, 477

F.3d 1110, 1115 (9th Cir. 2007) as supporting its conclusion. In

Lopez, the defendant was found driving in a car with a firearm

This Court should grant certiorari in order to

resolve this marked expansion of the law

surrounding sufficiency of the evidence, as well as

the expansion of the reach of 18 U.S.C. §924(c).

Absent other indicia of drug dealing, the Ninth

Circuit’s rationale in this case approaches strict

liability for those who simultaneously possess guns

and a mere “personal use” quantity of drugs. The

statute and case law do not support such a result.”

Because it is clear that the statute was not intended

to criminalize possession of a firearm in mere

proximity to drugs, certiorari should be granted.

Il. Certiorari Should be Granted because

Mr. Norwood’s Due Process Rights Were

Violated When the Prosecutor Commented on

Mr. Norwood’s Post-Arrest Silence During

Closing Arguments .

A prosecutor's duty in a criminal case is to

seek justice, not to obtain a conviction by “improper

methods calculated to produce a_ wrongful

conviction.” Berger v. United States, 295 U.S. 78, 88

(1935). When such methods are employed and “so

infect[] the trial with unfairness as to make the

resulting conviction a denial of due process,” it

justifies a mistrial or reversal of the conviction.

Darden v. Wainwright, 477 U.S. 168; 181 (1986)

and divided packets of cocaine just after being seen brandishing

the handgun. Id. at 1111-12.

2 To the extent that the Ninth Circuit attempted to base

its decision on the money found in Mr. Norwood’s possession,

that evidence is questionable in light of the erroneous

admission of the affidavit allegedly showing that there was no

legitimate source of income.

(quoting Donnelly v. DeChristoforo, 416 U.S. 637,

643 (1974)).

The central issue at trial was whether

Mr. Norwood was simply a drug user or, as the

Government argued, a drug dealer. Mr. Norwood,

through his counsel, argued that the crack cocaine

found in his bedroom was solely for personal use.

The Government countered. that it could not have

been for personal use because crack cocaine is

gvenerally smoked in glass pipes, and no pipes were

found in the house. In response, Mr. Norwood’s

counsel elicited testimony from the Government's

own expert that crack can be added to marijuana

blunts and smoked in that fashion. App. 61a.

During closing argument, defense counsel

suggested that this theory could not be disproved

because the police had failed to seize or test the

marijuana blunts found next to Mr. Norwood's bed.

The Government responded by acknowledging that it

would have been nice if the police had seized the

blunts, “but you know what, the defendant didn’t tell

them that he was smoking the marijuana with the

crack cocaine.” Norwood, 603 F.3d at 1067.

The prosecutors comment was blatant

misconduct. It is beyond peradventure’ that

prosecutors are prohibited from commenting on a

defendant's silence during closing arguments. Doyle

v. Ohio, 426 U.S. 610, 618-19 (1976). “II]It would be

fundamentally unfair and a deprivation of due

process to allow the arrested person’s silence to be

used to impeach an explanation subsequently offered

at trial.” Jd. at 618. In addition to violating the Fifth

Amendment right to remain silent, the use of a

defendant’s post-arrest silence violates’ the

defendant's due process rights and is grounds for

reversal. Id. at 618-620.

IV. Certiorari Should be Granted to Eliminate the

Unconstitutional Disparity Between Crack

and Powder Cocaine, Which Violates Due

Process Principles and the Eighth Amendment

The Due Process Clause of the Fifth

Amendment, in concert with the Eighth

Amendment's prohibition against cruel and unusual

punishment, bars the arbitrary — sentencing

distinction between crack and powder cocaine

contained in 21 U.S.C. § 841(b). “No 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, Federa!

Cocaine Sentencing 1n Transition, 19 FED. SENT’G

REP. 291, 291 (2007).

Under § 841(b), a person who is convicted of

possessing at least five grams of crack cocaine with

the intent to distribute, with one prior felony drug

offense on his record, must receive a mandatory

minimum sentence of ten years. 21 U.S.C. §

841(b)(1)(B)(iii). But a person convicted of possessing

only five grams of powder cocaine, with one prior

conviction, would not be subject to any mandatory

minimum sentence. Instead, it would take 500

grams of powder cocaine to receive the same ten-year

mandatory minimum = sentence. 21 USC. 4

84 1(b)(1)(B) (ii).

It is now well-documented and _ generally

accepted that this distinction is arbitrary. Since

1995, the United States Sentencing Commission has

repeatedly observed that crack and powder cocaine

“are two forms of the same drug, containing the same

active ingredient.” See UNITED STATES SENTENCING

COMMISSION, 1995 SPECIAL REPORT TO CONGRESS:

COCAINE AND FEDERAL SENTENCING POLICY vi (1995).

Indeed every concern raised by Congress in its

frenzied enactment of the Anti-Drug Abuse Act of

1986 has been refuted by the Sentencing

Commission. In a 2002 report to Congress, the

Sentencing Commission emphatically stated:

After carefully considering all of the

information currently available - some 16

years - after the 100-to-1 drug quantity

ratio was enacted - the Commission firmly

and unanimously believes that the current

federal cocaine sentencing policy is

unjustified and fails to meet the sentencing

objectives set forth by Congress in both the

Sentencing Reform Act and the 1986 Act.

UNITED STATES SENTENCING COMMISSION, 2002

REPORT TO CONGRESS: COCAINE AND FEDERAL

SENTENCING POLICY 91 (2002) [hereinafter 2002

Commission Report] (emphasis added).

The Commission then applied this information

to the general sentencing goals set forth in 18 U.S.C.

§ 3553(a)(2). After evaluating “the current federal

cocaine penalty structure in light of those general

and specific objectives” the Commission concluded

that the current sentencing guidelines for crack

cocaine: (1) “exaggerate the relative harmfulness of

crack cocaine”; (2) “sweep too broadly and apply most

often to lower level offenders”: (3) “overstate the

seriousness of most crack cocaine offenses and fail to

provide adequate proportionality”: and

(4) disproportionately impact minorities. 2002

Commission Report at v-viil. The Commission

concluded by recommending an increase in the

threshold quantity of crack cocaine necessary to

invoke the mandatory minimum sentences. Id. at

Vili.

In response to Congress’s continued inaction,

the Sentencing Commission amended the federal

sentencing guidelines on May 1, 2007 to reflect its

oft-articulated frustration regarding the crack and

powder cocaine disparity. The amendments adjusted

the base offense levels downward by two levels and

the Commission applied the change retroactively.

See UNITED STATES SENTENCING COMMISSION,

PRELIMINARY CRACK COCAINE RETROACTIVITY DATA

REPORT 2-3 (2008) [hereinafter 2008 Commission

Report].

Following the retroactive application of the

crack cocaine amendments, the Sentencing

Commission issued a report analyzing recent court

decisions regarding motions to reduce sentences for

qualifying offenders, including the racial makeup of

those affected by the amendment. 2008 Commission

Report at 4-14. “Table 5” illustrates the racial

disparity inherent in the crack and powder cocaine

distinction. Of the 10,340 offenders considered for a

sentence reduction under the amendment, 93.2%

were Black or Hispanic. /d. at 8. This statistic

further emphasizes the crack and_ powder

distinction’s bias towards minority offenders.

The issue has recently been in the news as

well. Just recently, the Senate conducted hearings

regarding the disparity during’ which _ the

Department of Justice announced its attempt to try

and bring about legislation eliminating this

disparity. See Restoring Fairness to Federal

Sentencing: Addressing the Crack-Powder Disparity:

Hearing Before the S. Comm. on the Judiciary

Subcomm. on Crime and Drugs, 111 Cong.

(statement of Lanny A. Breuer, Assistant Att’y Gen.,

Criminal Division, United States Department of

Justice) (2009).

Mr. Norwood is yet another victim of the

arbitrary and racially disparate crack to powder

distinction. He is an African-American male,

sentenced to a mandatory minimum ten-year

sentence, leaving behind a young child and family.

Rather than curb the proliferation of cocaine use, the

crack to powder distinction injures communities,

specifically minority communities.

Despite the empirical evidence that crack and

powder cocaine are homogeneous, to date Congress

refuses to eliminate the disparity in sentences. This

failure to act is arbitrary because it is not based upon

a rational, scientific basis. It follows that the

disparate sentences between crack cocaine and

powder cocaine’ convictions are _— arbitrarily

disproportionate and, in turn, unconstitutional.

CONCLUSION

For the reasons set out above, the petition for

a writ of certiorari should be granted.

Respectfully submitted,

TYLER B. ROBINSON

PETER R. JORDAN Counsel of Record

SIMPSON THACHER & SIMPSON THACHER &

BARTLETT LLP BARTLETT LLP

1999 Avenue of the Stars CityPoint

29th Floor One Ropemaker Street

Los Angeles, California 90067 London EC2Y 9HU

(310) 407-7500 England

pjordan@stblaw.com +44-(0)20-7275-6118

trobinson@stblaw.com

Attorneys for Robert Lewis Norwood

APPENDIX

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

No. 08-30050

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

April 1, 2010

UNITED STATES OF AMERICA, Plaintiff-Appellee

ROBERT LEWIS NORWOOD, Defendant-Appellant

ORDER AND AMENDED OPINION

On Remand from The United States Supreme Court

Filed February 17, 2010

Amended April 1, 2010

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.

ROBERT J. PFISTER AND ANDREW B. BRETTLER,

Simpson Thacher & Bartlett LLP, Los Angeles,

California, for the defendant-appellant.

JAMES A. MCDEVITT AND K. JILL BOLTON, United

States Attorney, Spokane, Washington, for the

plaintiff-appellee.

ORDER

The opinion filed on February 17, 2010 is

amended as follows:

On slip opinion page 2510, the first sentence of

the second paragraph at Headnote [4] is deleted, and

replaced with the following: “In sum, we are

convinced beyond any reasonable doubt on the basis

of all the remaining evidence adduced at trial that

the jury would have convicted Norwood on the

elements of the possession with intent to distribute

offense regardless of the challenged affidavit.”

With this amendment, the panel has unanimously

voted to deny the petition for panel rehearing.

Judges Tallman and M. Smith have voted to deny

the petition for rehearing en banc, and Judge

Reavley has so recommended.

The full court has been advised of the petition for

rehearing en banc, and no judge of the court has

requested a vote on it. Fed. R. App. P. 35.

The petition for rehearing and petition for

rehearing en banc are DENIED. No further petitions

for rehearing may be filed.

OPINION

MILAN D. SMITH, JR., Circuit Judge:

In this appeal, Defendant-Appellant Robert L.

Norwood challenges his jury conviction for possession

of cocaine base with intent to distribute in violation

of 21 U.S.C. § 841(a)(1) and possession of a firearm in

furtherance of a drug trafficking crime in violation of

18 U.S.C. § 924(c)(1)(A). Norwood claims violation of

his Sixth Amendment right to confront his accuser

and violation of his due 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 affirmed Norwood’s conviction and sentence in

United States v. Norwood, 555 F.3d 1061 (9th Cir.

2009). The matter is again before us on remand from

the United States Supreme Court. The Court vacated

our earlier opinion and remanded for reconsideration

of Norwood’s Confrontation Clause claim in light of

Melendez-Diaz v. Massachusetts, 129 S. Ct. 2527

(2009). We again affirm Norwood’s conviction and

sentence.

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

fuund 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(a)(1), 841(b)(1)(B), and 18 U.S.C. § 2; and (3)

possessing a firearm in furtherance of a drug

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

The government eventually dismissed the first count

and proceeded to trial on the second and _ third

counts. Norwood made a Iederal 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 Sccurity, 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

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 $1, 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 8, to run consecutively. Norwood

appealed to this court.

STANDARD OF REVIEW

Norwood alleges that his Sixth Amendment riph*

to confront his accusers was violated when the

district court admitted into evidence a_— written

alfidavit without requiring the affhhant 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 v.

Virginia, 527 U.S. 116, 137 11999). If a constitutional

violation has occurred, we then review for harmless

error. Chapman v. California, 3886 U.S. 18, 21°22

(1967).

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 hus

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.

Finally, Norwood argucs that the evidence was

insufficient to convict him on the count of possession

of a firearm in furtherance of a druy 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.’” Id. (quoting Jackson v. Virginia,

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

DISCUSSION

I. Claimed Violation of |§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.

Vl. 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 summarized in Crawford,

“[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 full

extent to which rights under the Confrontation

Clause are applicable to testimonial and

nontestimonial statements. However, in Melendez-

Diaz, the Court provided additional guidance, con-

cluding that “certificates of analysis” verifying the

identity of a contraband chemical substance are

testimonial under Crawford. 129 S. Ct. at 2531, 2532.

Quoting Crawford, the Court explained that the

“certificates of analysis” (which are “quite plainly

affidavits”) are “incontrovertibly a solemn

declaration or affirmation made for the purpose of

establishing or proving some fact” and “functionally

identical to live, in-court testimony.” Jd. Gnternal

quotation marks omitted). Accordingly, Melendez-

Diaz held that such affidavits are inadmissible

unless the affiant testifies at trial, or is unavailable

at trial but had earlier been available for cross-

examination. ld.

In this case, the government concedes that under

Melendez-Diaz, Washington Department of

Employment Security Assistant Records Officer Jodi

Arndt’s affidavit, prepared for use at Norwood’s trial

to prove the absence of any record of Norwood having

legitimate employment, should not have _ been

admitted without Arndt presenting herself at trial

for examination.

In hght of the government's concession that

admission of Arndt’s affidavit violated Norwood’s

Sixth Amendment rights, we must remand for a new

trial unless the government demonstrates beyond a

reasonable doubt that admission of the evidence was

harmless. Chapman, 386 U.S. at 24.

Whether such an error is harmless in a

particular case depends upon a host of

factors . . . includling] the importance of

the witness’ testimony in the prosecution's

case, whether the testimony was

cumulative, the presence or absence of

evidence corroborating or contradicting the

testimony of the witness on material

points, the extent of cross-examination

otherwise permitted, and, of course, the

overall strength of the prosecution’s case.

Delaware v. Van Arsdall, 475 U.S. 673. 684 (1986).

Under the circumstances of this case, the

government has met its burden. Unlike the affidavit

in Melendez-Diaz, the affidavit in this case was not

offered to prove an element of the offense, nor was it

the sole evidence of any relevant fact. Rather, the

testimony provided by the disputed affidavit was not

particularly important to the case, and was

cumulative.

Specifically, the affidavit was offered to prove the

lack of any record that Norwood had legitimate

employment that might explain his possession of

$7,000 in cash stored in separate rolls of $1,000,

bundled in duct tape, in the center console of his

vehicle, and another $2,531 in cash on his person.

The amount of cash and Norwood's method of

storing it strongly suggest that the money did not

derive from a legitimate source. Further, the jury

heard evidence from Norwood’s girlfriend that he

rarely left the house during the day, did not receive

paychecks from any regular employment, and that

his only job involved occasional cleaning of rental

units. Thus, Norwood’s — girlfriend’s testimony

established the same fact as the disputed affidavit-

that Norwood did not have any sort. of job that would

have led to employment records with the state

making the affidavit merely cumulative. Thus,

although the government rehed on the affidavit in

arguing to the jury that the cash could not have

derived from a legitimate source, the government

could have made precisely the same argument based

on the testimony of Norwood’s __ girlfriend.

Accordingly, the district court’s admission of the

10a

affidavit, and the government’s reliance on it, were

harmless.

Other physical evidence suggested that Norwood

was in the drug distribution business. The smell of

marijuana greeted the officers when they arrived at

Norwood’s house in response to the domestic

disturbance call. Norwood admitted to smoking

marijuana, and the police found two bags of

marijuana in the house. When the police found him,

Norwood was lying on his bed in his home. A loaded

25-caliber handgun was found under his mattress. A

tray bearing Norwood’s fingerprints was found under

the nightstand next to Norwood’s side of the bed. On

that tray were an electronic scale with traces of

cocaine on it, as well as baggies of crack cocaine.

Bundles of crack cocaine were also found on

Norwood’s person when he was searched incident. to

his arrest.

In sum, we are convinced beyond any reasonable

doubt on the basis of all the remaining evidence

adduced at trial that the jury would have convicted

Norwood on the elements of the possession with

intent to distribute offense regardless of the

challenged affidavit. Cf. United States v. Larson, 495

F.3d 1094, 1108 (9th Cir. 2007) (en banc) (concluding

that a Confrontation Clause error was harmless

beyond any reasonable doubt where other evidence

established defendant's participation in drug

conspiracy).

Il. 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, he

lla

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

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, “[t]he 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.”

Bushvhead, 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. Id. 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

12a

answered the defense’s claim that Robinson’s trial

was unfair. Id. at 31-32.

Similarly, in this case, the prosecutor merely

responded to Norwood’s implication of investigative

misconduct. Defense counsel implied that there was

no evidence that Norwood had used crack cocaine

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) (recognizing 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 elosing argument,

and as indicated above, served primarily to refute an

imphed 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.

l3a

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

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 our precedents, 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

l4a

TO CONGRESS: COCAINE AND FEDERAL SENTENCING

POLICY (May 2007).

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.

Ill. 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 beheves 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 (internal 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)(1) was amended in 1998 to employ the

15a

provision that the firearm be _ possessed “in

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) to 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(c)(1). 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 promote the

criminal activity.” Id. at 967 (quoting H.R. Rep. No.

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

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

l6a

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 J.opez, 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.”

17a

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

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

AFFIRMED.

18a

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

No. 08-30050

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

February 17, 2010

UNITED STATES OF AMERICA, Plaintiff-Appellee

ROBERT LEWIS NORWOOD, Defendant Appellant

OPINION

On Remand from The United States Supreme Court

,efore:

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.

19a

Appeal from the United States District Court for

the Kastern District of Washington

Lonny R. Suko, District Judge, Presiding

AFFIRMED.

ROBERT J. PFISTER AND ANDREW B. BRETTLER,

Simpson Thacher & Bartlett LLP, Los Angeles,

California, for the defendant-appellant.

JAMES A. MCDEVITT AND K. JILL BOLTON, United

States Attorney, Spokane, Washington, for the

pPlaintiff-appellee.

OPINION

MILAN D. SMITH, JR., Circuit Judge:

In this appeal, Defendant-Appellant Robert L.

Norwood challenges his jury conviction for possession

of cocaine base with intent to distribute in violation

of 21 U.S.C. § 841(a)(1) and possession of a firearm in

furtherance of a drug trafficking crime in violation of

18 U.S.C. § 924(c)Q (A). Norwood claims violation of

his Sixth Amendment right to confront his accuser

and violation of his due 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 affirmed Norwood’s conviction and sentence in

United States v. Norwood, 555 F.3d 1061 (9th Cir.

2009). The matter is again before us on remand from

20a

the United States Supreme Court. The Court vacated

our earher opinion and remanded for reconsideration

of Norwood’s Confrontation Clause claim in lyht of

f{elendez-Diaz v. Massachusetts, 129 S. Ct. 2527

(2009). We again affirm Norwood’s conviction and

sentence.

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 demed having any other drugs

in the bedroom. The officers then arrested Norwood,

and while searching him discovered 0.86 prams 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.

Qn August 2, 2007, Norwood was indicted in

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

2la

felon in possession of a firearm in violation of 18

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

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

§§ 841(a)(1), 841(b)(1)(B), and 18 U.S.C. § 2; and (3)

possessing a firearm in furtherance of a drug

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

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. ‘he 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 mght

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. Luly v.

Virginia, 527 U.S. 116, 137 (1999). If a constitutional

violation has occurred, we then review for harmless

error. Chapman v. California, 386 U.S. 18, 21-22

(1967).

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. Bushvhead, 270 F.3d 905, 911 (9th

23a

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

determined to be improper, we then apply harmless

error review. Id.

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 tor 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 uf “‘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.” Id. (quoting Jackson v. Virginia,

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

DISCUSSION

I. Claimed Violation of 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 mght 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 summarized in Crawford,

“Itlestimonial 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 full

extent to which rights under the Confrontation

Clause are applicable to testimonial = and

24a

nontestimonial statements. However, in Melendez-

Diaz, the Court provided additional guidance, con-

cluding that “certificates of analysis” verifying the

identity of a contraband chemical substance are

testimonial under Crawford. 1295. Ct. at 2531, 2532.

Quoting Crawford, the Court explained that the

“certificates of analysis” (which are “quite plainly

affidavits”) are “incontrovertibly =a solemn

declaration or affirmation made for the purpose of

establishing or proving some fact” and “functionally

identical to live, in-court testimony.” Jd. Gnternal

quotation marks omitted). Accordingly, Melendez-

Diaz held that such affidavits are inadmissible

unless the affiant testifies at trial, or is unavailable

at trial but had earlier been available for cross-

examination. Id.

In this case, the government concedes that under

Melendez-Diaz, Washington Department of

Employment Security Assistant Records Officer Jodi

Arndt’s affidavit, prepared for use at Norwood’s trial

to prove the absence of any record of Norwood having

legitimate employment, should not have been

admitted without Arndt presenting herself at trial

for examination.

In hght of the government’s concession that

admission of Arndt’s affidavit violated Norwood's

Sixth Amendment rights, we must remand for a new

trial unless the government demonstrates beyond a

reasonable doubt that admission of the evidence was

harmless. Chapman, 386 U.S. at 24.

Whether such an error is harmless in a

particular case depends upon a host of

factors ... includling]the importance of the

witness testimony in the prosecution’s

25a

case, whether the testimony was cumula-

tive, the presence or absence of evidence

corroborating or contradicting the

testimony of the witness on material

points, the extent of cross-examination

otherwise permitted, and, of course, the

overall strength of the prosecution's case.

Delaware v. Van Arsdall, 475 U.S. 673, 684 (1986).

Under the circumstances of this case, the

government has met its burden. Unlike the affidavit

in Melendez-Diaz, the affidavit in this case was not

offered to prove an element of the offense, nor was it

the sole evidence of any relevant fact. Rather, the

testimony provided by the disputed affidavit was not

particularly important to the case, aid was

cumulative.

Specifically, the affidavit was offered to prove the

lack of any record that Norwood had legitimate

employment that might explain his possession of

$7,000 in cash stored in separate rolls of $1,000,

bundled in duct tape, in the center console of his

vehicle, and another $2,531 in cash on his person.

The amount of cash and Norwood’s method of

storing it strongly suggest that the money did not

derive from a legitimate source. Further, the jury

heard evidence from Norwood’s girlfriend that he

rarely left the house during the day, did not receive

paychecks from any regular employment, and that

his only job involved occasional cleaning of rental

units. Thus, Norwood’s. girlfriend’s testimony

established the same fact as the disputed affidavit—

that Norwood did not have any sort of job that would

have led to employment records with the state—

26a

making the affidavit merely cumulative. Thus,

although the government relied on the affidavit in

arguing to the jury that the cash could not have

derived from a legitimate source, the government

could have made precisely the same argument based

on the testimony of Norwood’s _- girlfriend.

Accordingly, the district court’s admission of the

affidavit, and the government's reliance on it, were

harmless.

Other physical evidence suggested that Norwood

was 1n the drug distribution business. The smell of

marijuana greeted the officers when they arrived at

Norwood’s house in response to the domestic

disturbance call. Norwood admitted to smoking

marijuana, and the police found two bags of

marijuana in the house. When the police found him,

Norwood was lying on his bed in his home. A loaded

25-caliber handgun was found under his mattress. A

tray bearing Norwood’s fingerprints was found under

the nightstand next to Norwood’s side of the bed. On

that tray were an electronic scale with traces of

cocaine on it, as well as baggies of crack cocaine.

Bundles of crack cocaine were also found on

Norwood’s person when he was searched incident to

his arrest.

In sum, disregarding the affidavit entirely, the

evidence against Norwood on the elements of the

offense of possession of cocaine base with intent to

distribute was sufficient to establish his guilt beyond

any reasonable doubt. Cf. United States v. Larson,

495 F.3d 1094, 1108 (9th Cir. 2007) (en banc)

(concluding that a Confrontation Clause error was

harmless beyond any reasonable doubt where other

evidence established defendant’s participation in

drug conspiracy).

Ill. 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, he

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

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, “[t]he 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. Jd. at 27. The

28a

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. Id. at 31- 32.

Similarly, in this case, the prosecutor merely

responded to Norwood’s implication of investigative

misconduct. Defense counsel implied that there was

no evidence that Norwood had used crack cocaine

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) (recognizing 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

implied claim of investigative carelessness. The

district court immediately sustained Norwood’s

29a

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

States, 500 USS. 53, 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 1n Transition, 19 FrEp. SENT. R, 291 291

(2007).

Under our precedents, 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

30a

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).

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.

Ill. 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 (internal citation omitted).

Sla

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)(1) was amended in 1998 to employ the

provision that the firearm be possessed “in

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) to 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(c)(1). 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 promote the

criminal activity.” Id. at 967 (quoting H.R. Rep. No.

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

that drug traffickers “generally use firearms to

32a

further their drug crimes” is not sufficient. Itios, 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

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.”

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

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

AFFIRMED.

I4a

Supreme Court of the United States

Office of the Clerk

Washington, DC 20543-0000!

Wilham K. Sutes

Clerk of the Court

(202) 479-301 J

December 4, 2009

Clerk

United States Court of Appeals

for the Ninth Circuit

P.O. Box 1989389

San Francisco, California 94119°3939

Re: Robert Lewis Norwood

v. United States

No. 09-69 (Your docket No. O8-30050)

Dear Clerk:

Attached please find a certified copy of the

judgment of this Court in the above-entitled case

You may obtain a copy of the opimion cited in the

judgment by Visiting our website

WWWW.Supremccourtus. gov

Sincerely.

WILLIAM K. SUTTER. Clerk

sy /s/ Khizabeth Brown

Klizabeth Brown

Judgments/Mandates Clerk

lone.

CC: Robert J. Pfister, Hsq.

Solicitor General

35a

Supreme Court of the United States

No. 09-69

ROBERT LEWIS NORWOOD,

Petitioner

UNITED STATES

ON PETITION FOR WRIT OF CERTIORARI to

the United States Court of Appeals for the Ninth

Circuit.

THIS CAUSE having been submitted on the

petition for writ of certiorari and response thereto.

ON CONSIDERATION WHEREOF, it is ordered

and adjudged by this Court that the petition for writ

of certiorari is granted. The judgment of the above

court 1s vacated, and the case is remanded to the

United States Court of Appeals for the Ninth Circuit

for further consideration in light of Melendez-Diaz v.

Massachusetts, 557 U.S. __ (2009).

November 2. 2009

[Seal of the Supreme Court of the United States]

A True copy WILLIAM K. SUTER

Test

Clerk of the Supreme Court of the United States

By: /s/ Cynthia Rapp

oba

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

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 HUNG, 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(a)(1) and possession of a firearm in

furtherance of a drug trafficking crime in violation of

18 U.S.C. § 924(c)(1). On appeal, Norwood claims

violation of his Sixth Amendment right to confront

his accuser and violation of his due 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

Norwood’s conviction and sentence.

38a

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 anv

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(¢)(1) and 924(e): (2) possessing cocaine

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

§§ 841(a)(1), 841(b)(1)(B), and 18 U.S.C. § 2; and (3)

possessing a firearm in furtherance of a drug

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

The government eventually dismissed the first count

39a

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

maryuana 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

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

40a

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 v.

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.

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).

4la

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.” Id. (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, “[t]estimonial 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

statements. The opinion in Crawford traces the

history of the Sixth Amendment and _ identifies

“[sltatements taken by police officers in the course of

interrogations” as testimonial. Id. 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

[nontestimoniall statements from Confrontation

Clause scrutiny altogether.” Jd. 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 to police

interrogations.” Id.

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. Id. 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

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

43a

prepared for litigation, and were better classified as

business records. Id. 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 ~f 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

garnered by police interrogation of domestic violence

victims who then failed to appear in court. According

to Davis:

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

44a

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

Arnat’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, he

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

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, “[t]he 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. Id. 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. Id. at 31-32.

Similarly, in this case, the prosecutor merely

responded to Norwood’s implication of investigative

misconduct. Defense counsel implied that there was

no evidence that Norwood had used crack cocaine

only because the police had failed to test the box of

marijuana blunts. ‘I'he 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

46a

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

implied 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

States, 500 U.S. 458, 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 “[njJo 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. SrNniT. 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

Ala

distinction between these two forms of cocaine base.

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

Carolene Prods. Co., 804 U.S. 144, 154 (1988)). 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).

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 1s not required to determine

whether it believes that the evidence at

trial established guilt beyond a reasonable

Aka

doubt. Instead, the relevant question 1s

whether, after viewing the evidence in the

light most favorable to the prosecution, any

rational trier of fact could have found the

essential eclements of the crime beyond a

reasonable doubt.

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

To obtain a conviction under § 924(e)01), 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 Itios, 449 F.8d at

1018, § 924490) was amended in 199% to employ the

provision that the firearm be possessed “in

furtherance of the drug traffieking crime. This

amendment superceded the previous standard that

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

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

(Supp. [IV 199%). The amendment sought to broaden

the scope of § 924(c)Q) to include more conduct than

actually using or carrying the weapon during the

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

105-344, at 6 (1997). See also Rios, 449 F.8d at JOLS

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)).

Hlowever, “mere possession of a firearm by an

individual convicted of a drug crime is not sufficient

for a rational tmer of fact to convict” under

§ 924(0)01). Rios, 449 F.8d at 1012. A conviction is

only supported by sufficient evidence when the facts

“reveal a nexus between the guns discovered and the

49a

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 promote the

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

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

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 the firearm and the drug crime bv

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’ drug crime was possession of

cocaine with intent to distribute, evidence

establishing the ready accessibility of the gun while

he was 1n 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 sav

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”

50a

sizes, Which both parties stipulated is a commercial

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

the police first discovered Norwood lving 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

che firearm in furtherance of the trafficking of crack,

specifically to protect himself and his business.”

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

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

AFFIRMED.

5Sla

UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF WASHINGTON

Noa. CR-06-00091-LRS

December 28, 2007

UNITED STATES OF AMERICA, Plaintiff-Appellee

ROBERT LEWIS NORWOOD, Defendant-Appellant

ORDER DENYING MOTION FOR

JUDGMENT OF ACQUITTAL

1. BACKGROUND

Jury tral was conducted in this matter on

October 29°31, 2007. On October 31, the jury

returned guilty verdicts against the Defendant on

Count 2 of the Superseding Indictment, Possession

With Intent To Distribute 5 Grams Or More Of

Cocaine Base, in violation of 21 U.S.C. §841(a)(1),

and Count 3, Possession Of Firearm In Furtherance

Of The Drug Trafficking Crime Of Possession With

Intent ‘To Distribute Cocaine Base. With regard to

Count 2, the jury specifically found the cocaine base

was “crack” or “rock” cocaine. With regard to Count

3, the jury specifically found the firearm had been

possessed in furtherance of the trafficking of cocaine

base.

52a

At the conclusion of trial, Defendant made an oral

motion for judgment of acquittal pursuant to Fed. R.

Crim. P. 29. The court reserved ruling on the motion

and directed that briefing be filed by the parties.

Said briefing has been filed and the court has

considered the same.

2. DISCUSSION

A motion for acquittal must be granted when the

evidence, viewed in the light more favorable to the

government, is such that a reasonable juror must

have a reasonable doubt as to the existence of any

essential element of the crime charged. Conversely, if

a reasonable juror would not have a reasonable doubt

as to the existence of any essential element of the

crime charged, the court should not disturb the

finding of guilt. United States v. Yoshida, 303 F.3d

1145, 1149 (9th Cir. 2002).

With regard to Count 2, Possession With Intent

To Distribute 5 Grams Or More Of Cocaine Base,

Defendant contends there was insufficient ev dence

to establish that he distributed cocaine base. With

regard to Count 3, Possession Of Firearm In

Furtherance Of The Drug Trafficking Crime Of

Possession With Intent To Distribute Cocaine Base,

Defendant contends that even if the evidence

established that a drug trafficking crime occurred, it

did not establish that Defendant possessed a firearm

or that he possessed it in furtherance of a drug

trafficking crime.

De‘fendant does not dispute that during a search

of lis person, residence and vehicle, the following

was found: 1) approximately $2,500 in cash on his

persom: 2) approximately $7,000 cash in his vehicle:

RQe

VIOA

3) .86 grams of cocaine base (crack) in his pants

pocket: 4) 7.7 grams of crack found on the floor,

packaged in 1/8 ounce packages, near a small digital

scale, beside the bed he was lying upon: 5) a .22

caliber pistol found beneath the mattress in the

bedroom the Defendant was occupying. Though not

seized by officers, several marijuana “blunts” were

also found and testimony at trial suggested that

Defendant was a user of that substance.

Between the .86 grams found on his person and

the 7.7 grams found in his residence, there was more

than sufficient evidence to establish that Defendant

had a distributable amount of cocaine base and that

he intended to distribute the same. “Where there is

‘other evidence of a plan or intent to distribute,’

possession of as lttle as four or five grams may

establish an intent to distribute cocaine.” United

States v. Lopez, 477 F.3d 1110, 1114 (9th Cir. 2007),

citing United States v. Ramirez, 608 F.3d 1261, 1264

(9th Cir. 1979). Here, there was sufficient “other

evidence of a plan or intent to distribute,” namely: 1)

the large amount of cash found on Defendant's

person and in his vehicle: 2) although he had

apparently cashed in a modest retirement account

from prior employment a number of months previous

to his arrest. the Defendant was unemployed and

had not been employed since 2001: 3) the cash found

in the vehicle was wrapped in seven separate $1,000

bindles/rolls, held together by rubber bands and

there was testimony by DEA Task Officer Rick

Taylor that drug trafficking is a cash business and

that sales of drugs are usually for set amounts based

on the relationship between the dealer and the

purchaser: and 4) the proximity of the digital scale to

the drugs located in the residence and testimony that

db4a

latent prints recovered from a metal plate on which

the digital scale was found matehed the known

prints of the Defendant. There was_ sufficient

evidence from which a reasonable jury could infer

that Defendant intended to distribute cocaine base.

The fact there was no direct evidence that anyone

ever purchased drugs from the Defendant or saw him

sell drugs is inconsequential.

While the government need not show actual use

of a firearm to advance a drug trafficking offence,

mere possession of a firearm is not enough. In

addition to possession, the government must

demonstrate a nexus between the firearm and the

underlying offense. A sufficient nexus exists if the

firearm was “readily accessible” during’ the

commission of the drug trafficking offense. Lopez,

477 F. 3a at 1115. The Ninth Circuit has rejected a

“checklist” approach to determining whether a

firearm was possessed “in furtherance” of a drug

trafficking offense and instead requires consideration

of the “totality of the circumstances based on the

evidence submitted at trial.” U.S. v. Mosley, 465 F.3d

412, 416-17 (9th Cir. 2006).

Here, the firearm was found under the mattress

of a bed on which the Defendant had been lying. The

firearm was easily accessible within the Defendant's

reach and therefore, “readily accessible” to him. On

the floor beside the bed were 7.7 grams of crack,

packaged in 1/8 ounce packages. Near the drugs was

a digital scale. On his person, the Defendant had

crack (86 grams in two separate bindles in his pants

pocket) and a large amount of cash ($2,500).

Evidence was presented that the firearm was loaded

and operable. From the totality of these

oda

circumstances, a reasonable jury could infer that

Defendant possessed the firearm in furtherance of

the trafficking of crack, specifically to protect himself

and his business.

Ss CONCLUSION

Viewing the evidence presented at trial in the

lhght most favorable to the government, this court

concludes that a rational tmer of fact would have

found beyond a reasonable doubt the existence of

each of the essential elements of the crimes of which

the Defendant was convicted. Accordingly,

Defendant’s motion for judgment of acquittal is

DENIED.

IT IS SO ORDERED. The District Court

Executive is directed to enter this order and provide

copies to council.

DATED this 28th day of December, 2007.

/s/ Lonny R. Suko

LONNY R. SUKO

United States District Judge

56a

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

* * *

Prosecution/Opening Statement

k**k*

They found on that bed right under where the

defendant had been laying between the mattress and

the box springs a 25 caliber pistol.

And then within just a few inches, maybe a foot or

two or maybe three feet, but right next to the bed

under the nightstand a metal plate, a small metal

plate.

On top of the metal plate was a digital scale and

-- or next to the digital scale on top of the metal plate

was more crack cocaine, 7 point 7 grams is what

DEA forensic laboratory testing will demonstrate.

So in combination, we have got the crack cocaine

in his pocket, we have got the crack cocaine next to

his bed next the to the firearm and then a search of

the defendant's car outside.

I talked about the circumstances. One of the bits

of evidence you will hear about in this case is that for

all of us who work legitimate jobs, our employers

report our income to what is called the Department

of Employment Security.

So they tell the State of Washington, okay, this

person is employed, here is how much they made this

year. Those records for the defendant showed that he

hadn't had a job, no legitimate reported income, since

2004.

x & *&

58a

[226]

Richard Taylor/Direct Examination

Q. And what is a user quantity? Give us a real life

example of what that is going to look lke?

A. Well, as I said, users that -- I was talking to

individual users would go and give them 20 dollars

and get a couple of rocks. They would go use those, a

rock or two over a period of time. A rock is very small

in proportion. It is not like a big throwing rock, it is

really a small chunk. It is almost -- I don't even know

how to describe it without drawing it. It 1s just hke a

speck.

Q. Okay. So are you familiar with like sugar packets

that

[227]

you get in a restaurant?

A. The Splenda?

Q. Would it be that much?

A. No, it would be less than that.

Q. So how much less than that?

A. I believe the Splenda packets are a couple of

grams. I can't remember the actual weight of what

that is. It would be like an eighth of a gram if you

want to call it that for a rock. I mean, really again it

depends, because they are manufacturing crack

cocaine from powder cocaine so it depends on how the

dealer breaks it into the smaller rocks. They break it

down once it 1s manufactured into, for better sense, a

59a

cookie type form where it is hard and then it is

broken into the smaller rocks. So they are not

uniform by any means. The only uniform would be

what the distributor makes then.

Q. And you explained in 2006, an ounce is about six

to eight hundred dollars on the street based on what

you knew in Spokane, Washington at that time’?

A. Correct.

Q. No taxes or cents involved typically in those

traits; are we dealing in whole dollar amounts?

60a

[240]

Richard Taylor/Cross-Examination

Q. Okay. And 7 point 7 grams, do you know what

that is in terms of what an ounce 1s?

A. Doing the math -- I mean, that is going to be -- of

an ounce, you are at seven prams, 28, so you are

going to be about a quarter.

Q. About a quarter of an ounce?

A. Roughly, yes.

@. Do you know what an eight ball is?

A. It is an eighth.

Q. An eighth of an ounce?

A. Correct.

Q. And is an eight ball something that drugs are

commonly sold as?

A. Yes, they sell them in eight ball quantities, yes.

xk«*k

Richard Taylor/Cross- Examination

kkk

Q. Okay. Hold on just a moment. Agent Taylor, the

consumption of these items, marijuana is sometimes

rolled into cigarettes or cigar sized joints, correct?

A. Most of them I see the cigarettes, I haven't scen

the cigar one, but --

@. Okay. And is it true that some people lace the

marijuana with things before they smoke it?

A. I have never -- are you talking a cigarette

themselves or the marijuana prior to putting in?

(). No, when they roll it?

A. Yeah, a lot of times they will dip those into lke an

LSD.

Q. Okay. Have you ever heard of a primo?

A. I have heard the slang, but I am not -- I have

heard of many things. It depends on what they are

referring to it and [ don't know exactly what they

would be referring to.

Q. And have you ever heard of marijuana laced with

crack cocaine being called a primo?

A. I have heard of it laced, | am not -- the term

primo, | would have to ask around about that, |

haven't specifically heard primo.

kxzk

[2453]

Rebecca Holiday/Direct Examination

x~ee

(). Now, you said that Robert smoked marijuana. Do

you know whether or not Robert had any other druy

problems?

A. Yes

Q. And what was that?

A. Pills.

@. What kind of pills?

A. Morphine, OxyContin, hydros, just about all of

them.

(). How long did that problem last?

A. A couple of years.

@. Was there a time when Robert stopped using the

pain pills?

A. When he ran out.

Q. And let me ask you this, did you know that Robert

was also using crack cocame?

A. I did not.

MS. BOLTON: Objection, Your Honor, that is

leading.

MS. HUNT: Did you know, the answer is either yes

or no. It doesn't sugpest the answer, Your Honor

THE COURT: | am going to overrule the objection,

but it is close to the line on leading because it does

suggest an answer. Go ahead,

Q. Do you know whether or not Robert used crack

cocaine?

A. I don't know.

Q. Now, were you aware that crack cocaine was

found in the house?

A. l was.

Q. And what was your reaction to that?

A. I thought he started using crack.

Q. And what made you think that?

A. Well, when I found out it was there, his attitude

the week before told me he was on something, but |

knew that it wasn't pills anymore so I figured that is

what it was.

MS. BOLTON: Your Honor, I object and move to

strike. Obviously it has come in and been presented

to the jury, but there has been no foundation laid for

this testimony and this witness isn't qualified -- she

has not been qualified to give this opinion.

MS. HUNT: Well, Your Honor, if | may be heard.

THE COURT: You may.

MS. HUNT: She is giving a lay opinion on what she

saw before and then what she saw after and then

what she believed was the case after she was told

what was found in the house and | think she is --

MS. BOLTON: And what she believed --

THE COURT: One at a time.

64a

MS. HUN'T: | think she is entitled to give a lay

opinion as to that based on what she saw of Mr.

Norwood's behavior.

THE COURT: Miss Bolton.

MS. BOLTON: What she beleved is a lay opinion,

not familar -- or with any foundation as to what

erack cocaine

[285]

does to an individual. It is not relevant and it is not

appropriate for this jury. No foundation has been laid

for that, and her opinion 1s not relevant as a result.

THE COURT: The question really is consumption of

drugs, and that is what we are involved with here

and the opinion is not being offered as that of an

expert as 1 have understood it. The objection is

overruled.

MS. HUNT: Thank you, Your Honor.

Q. So did you think that Robert was -- did you come

to the opinion that Robert must have been using

crack cocaine?

A. Yes.

MS. BOLTON: Objection, leading.

MS. HUNT: Your Honor, I am just rephrasing the

question after the objection.

THE COURT: Overruled, but they need to be --

MS. HUNT: T will move on.

THE COURT: Yes, let's move on.

Q. Now, have you ever known Robert Norwood to sell

drugs?

A. No.

Q@. Have you ever known him to sell marijuana?

A. No.

Q. Or to sell crack cocaine”?

A. No.

Q. Or to sell anything else?

A. No.

[286]

@. You said -- how often would you see Robert during

that four year period?

A. Every day.

QM. Okay. And during that every day period, where

did you see Robert?

A. Home.

Q. Okay. At whose home?

A. Either one of our homes.

Q. Okay. And can you tell me about whether or not

people were coming and going from your house?

A. No, they weren't.

@. Did you and Robert have cell phones?

A. Yes.

Q. And were there cell phones in the house on the

day of April 30th?

A. Yes.

Q. Do you know what happened to those cell phones?

A. I believe his got taken. 1 had mine with me.

66a

Q. Okay. Let me ask you this also, there has been

some well, let me just show it to you.

64a

[288]

Rebecca Holiday/Direct Examination

*ke* ¥

Q. Okay. Do you know whether or not Robert was

working?

A. Part-time.

Q. And what was he doing part time?

A. He

MS. BOLTON: Your Honor, I am going to object. If |

could just examine the witness in aid of an objection?

THE COURT: What is the objection?

MS. BOLTON: Well, if her response is based on what

the defendant told her, then it would be a hearsay

response.

THE COURT: | think that can come out in cross:

examination.

MS. BOLTON: Okay. The government's objection 1s

hearsay.

THE COURT: AH right.

Q. Do you know

THE COURT: Overruled.

MS. HUNT: Can she answer the question?

THE COURT: She can. Overruled.

Q What did he do?

68a

[289]

A. He cleaned cut rentals that people had moved out

of.

Q. Do you know if Robert- had ever worked for

Colvico?

A. Yes.

Q. And let me ask you this, there has been the

question of a large amount of money that was found

in the house?

A. Yes.

Q. Do you know what access to funds Robert had in

terms of cash?

A. What access he has’?

Q. Well, let me ask you this. That is not a good way

to ask it. Let me ask it this way, did Robert have a

bank account?

A. No.

Q. And as a result of not having a bank account, do

you know what he did with his money?

A. No.

Q. Do you know whether or not he ever had a

retirement fund, a retirement account?

A. lam not sure really.

Q. Okay. And were you of the impression that he had

cashed out a retirement account from Colvico?

MS. BOLTON: Your Honor, I am going to object, this

is leading.

69a

THE COURT: Sustained. You need to re ask the

question in a different format.

Q. All right. Do you know, because | don't think that

[290]

leading, do you know, the answer is either yes or no,

Your Honor, whether or not Robert cashed a

retirement fund check?

A. Yes.

Q. Do you know how much it was for?

MS. BOLTON: Your Honor, objection. Again, this is

going to call for a hearsay response. If I could

examine the witness in aid of an objection?

THE COURT: I think at this point I am going to

allow that. Go ahead.

VOIR DIRE EXAMINATION

BY MS. BOLTON:

Q. Miss Holiday, we know what the question is, it is

about a check that maybe you saw at some point. Is

that the basis for your opinion?

A. Yes.

Q. As to whether or not it was cashed?

A. Yes.

Q. So your testimony is based on a document that

you saw, right?

A. Right.

70a

Q. And you don't have that document here with you

today?

A. No.

Q. And was it based also on something the defendant

told you?

A. He showed it to me, he didn't say he cashed it.

MS. BOLTON: Again, our objection is hearsay.

[291]

THE COURT: Well, at this point, it appears that the

answer to the question would suggest that hearsay is

not the basis that I can sustain, so I am going -- at

least based on that answer, overruled.

DIRECT EXAMINATION - CONTINUED

BY MS. HUNT:

@. So do you know whether or not Robert -- well, let

me ask you this, tell us the document that you saw?

A. It was a check.

Q. Okay. And do you remember how much it was for?

MS. BOLTON: Your Honor, again, objection,

hearsay. She is giving a statement about an out-of-

court document and it is being offered for its truth.

MS. HUNT: She jis explaining what she saw, Your

Honor.

THE COURT: Overruled. That is correct, she is

indicating what she saw.

Jla

MS. HUNT: Right, and quite frankly, Your Honor,

the government opened the door to this in asking her

about the document.

Q. Do you remember how much it was for?

A. It was over 5,000 dollars.

@. Did you ever see that check again?

A. I did.

@. And do you remember about when that was?

[292]

A. About a month later.

Q@. And do you remember what this time period was

that you saw that check?

A. It was I believe October and November.

Q. Of 2005?

A. Yes.

@. Okay. Now, after that, you said Mr. Norwood did

not have a checking account?

A. Right.

Q. Okay. Do you know whether or not Mr. Norwood

ever cashed checks at places -- different places?

A. Yes.

Q. And primarily where would he cash those checks

if you know?

MS. BOLTON: Your Honor, I am going to object. The

testimony that is. being elicited is based on

statements the defendant made to her, and I would

like to lay some foundation for that if I could, or

simply object that it is hearsay based testimony.

MS. HUNT: Let me rephrase the question.

THE COURT: Yes.

Q. Of your own personal knowledge, okay, something

that you saw, do you know where Robert would cash

his checks?

A. I don't know.

Q. Okay.

T3a

[297]

Rebecca Holiday /Redirect Examination

**k*

Q. -- do you remember that? Let me ask you this, did

Robert gamble?

A. Yes.

Q. And how often would he gamble?

A. At least once a week.

Q. How successful was he at that?

A. I would say --

MS. BOLTON: Your Honor, I would object, this is

beyond the scope of the cross.

THE COURT: Well, the issue has been income and

the sources of income both on direct and cross so |

am going to allow it.

MS. BOLTON: I am going to object to an opinion as

to success in gambling.

THE COURT: Overruled.

Q. How successful was he?

A. More successful than not.

@. Okay. Let me ask you this, do you know what

Robert would do with his winnings, or with any of his

money?

A. Pay his bills.

Q@. Okay. Was there an event that was coming up

that you know that specifically that Robert was

saving for?

T4a

A. Yes.

Q@. What was that event?

[298]

A. His daughter, Monique (phonetic), coming from

Australia.

@. And what was he saving to do?

A. Pay for her air fare, passport, and while she was

here.

Q. The marijuana, you admitted to this jury that you

have smoked it?

A. Right.

Q. Right, and you have admitted to this jury that you

had smoked some of Robert's marijuana’?

A. Right.

(. Did you also purchase marijuana?

A. No.

Q. Ever?

A. Probably in my lifetime, yes.

MS. HUNT: That is all.

THE COURT: Thank you, Miss Hunt. Any recross?

MS. BOLTON: No, Your Honor.

THE COURT: All right. You may step down. Thank

you. You may call your next witness.

kx*k

[304]

Judge Lonny R. Suko/Motion for a Judgment of

Acquittal

kx*k

l am going to send this matter to the jury. It 1s

not the duty of the court to stand in the way of

credibility determinations where there is reasonable

evidence that might be considered.

1 would say editorially that this is a case in which

the normal facts that show up seem to be closer to

the edge rather than heavy duty.

Stated differently, the Alaska case, for example,

where there was no evidence of sale involved a much

more -- a less attenuated degree of evidence.

In other words, they found multiple weapons.

There was evidence of drug manufacture. There was

drugs found out and about in the place. There was

lots of ammunition.

In this case, this is a much, much closer question,

and we may yet revisit this matter again. If this were

a civil case, | would be telling the parties to take a

good hard look at settling the case.

Obviously I am not going to do that because it is a

criminal case and | can't do it, although it is one

perhaps the parties might have taken a different look

at.

l am going to take it under advisement. | am not

going to rule in advance of the jury decision at this

juncture, and | will rule promptly thereafter.

76a

[321]

Prosecution/Closing Arguments

What we introduced to you was evidence that the

Department of Employment Security when someone

works a legitimate job, employer reports their income

and there 1s evidence that they have been employed

for a period of time.

We know from the evidence in this case and what

was introduced as to the defendant, that he hasn't

worked in a legitimate job in Washington State since

at least 2004.

So how is it that you don't have a job since 2004,

you have got a house, you have got a couple of cars,

you have got drugs, you have got a gun, you have got

kids apparently you are paying for, and you have got

that much cash?

Just inexplicable. There has been no reasonable

explanation for that except that he was involved in

drug trafficking

A thousand dollars in his wallet, 15 hundred and

30 dollars cash in his pocket and those bindles right

there next to it.

Now, maybe that day he went out with four or

five bindles and that is why he came back with so

much cash 1n that pocket. That is what fits.

Viva

[330]

Defense/Closing Arguments

Now, we do know there was some crumbles on or

near that little metal plate where the scale was.

What do you think that was for?

Don't you think that that is because somebody

crumbled it up to put to lace their marijuana roll

with. Is there evidence of anything else in this case?

No, there is not.

So what kind of weight, what kind of stone of

evidence is the scale? It is simply not evidence of

anything. Something else Rick Taylor said that was

very interesting. He said, you know, dealers weigh it

because they don't want to short anybody because if

you short. someone, if you short your customer, you

could be in a world of hurt.

Well, now, how would a customer know if he has

been shorted unless he weighed it. He would have to

weigh it to know he had been shorted.

So why is it inconceivable that a user would have

a scale? Why doesn't the government make that

argument? Especially if you are buying Costco style

marijuana.

Remember what Rick Taylor said, the more you

buy, the cheaper it is. The heavier user you are, the

more you use it. The more you use it, the more

expensive it 1s, the more it makes sense to buy an

ounce and a half as opposed to run out and by a rock

of crack every time you want to smoke crack.

x** x

[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

* * *

79a

[5]

Judge Lonny R. Suko/Sentencing Hearing

THE COURT: All right. It is the Court's

understanding that | have no choice in this matter:

that I'm bound by the law; that I cannot impose a

sentence different than that which is mandated in

the minimum in this case. Count 2 brings a

mandatory 120-month sentence and Count 3 brings a

mandatory consecutive 60-month sentence, for a

total of 180 months.

The guideline provisions that we purportedly

start with in analyzing any sentence would provide

for a total offense level of 26, a criminal history score

of 7; and on the mandatory penalty count for Count

3, there would be a five-year sentence. The criminal

history score is category IV. The 3553(a) factors that

the Court would ordinarily analyze and apply do not

apply in this case because the Legislature, through

the Executive Branch, has mandated that the Court

impose the sentence that is specified specifically in

the law. So there's basically. as I understand the

current state of the law, no discretion. If there were

discretion, the Court might perhaps analyze this case

differently.

I note that you're 53 years of age. You've had

brushes

[6]

with the law in the past. In this case, the convictions

that you face will result in you being roughly 68

years of age or thereabouts before you can get out of

SOa

Drison, unless there is a difference that's apphed or a

change in the law or a different view of this case

taken by the Court of Appeals.

Taking into account all of the matters that the

Court has to consider, 1 am going to impose sentence

as follows: Pursuant to 18 U.S. Code, Section

3553(a), considering the sentencing guidelines as

best 1 can in the circumstances that confront us, it 1s

the judgment of the Court that you are hereby

committed to the custody of the United States

Bureau of Prisons, to be imprisoned for a term of 180

months. This term consists of 120 months on Count 2

and 60 months on Count 3. In accordance with 18

U.S. Code, Section 924()Q)(D)Gi), the penalty for

)

Count 3 must run consecutive to any sentence

imposed; and | hereby impose that sentence.

Sla

[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 381, 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]

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.