# Petition for Writ of Certiorari — Norwood v. United States

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Petition for Writ of Certiorari
- **Published:** January 1, 2010
- **Citation:** 562 U.S. 952

## Text

Supreme Court US.

‘mee No. ___--- )-72)- 2.9. 700
OFFICE OF THE CLERK
IN THE

Wp

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.

lV

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

vl

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]

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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).

2

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

6

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

9

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

10

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

1]

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.

12

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

13

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.

14

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).

15

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.

16

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.

17

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

18

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

19

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.

20

(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

22

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

-

23

(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.

i)
qn

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

la

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
v.

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.

2a

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.

3a

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.

4a

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

Hu

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

6a

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

7a

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

Sa

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.

9a

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

2a

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.

A
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
§ 924(c)1) (1994), amended by 18 U.S.C. § 924(c)01)
(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
DE

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

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

* * *

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 cr

[Text truncated at 120,000 characters. The full text is on the page linked above.]

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386017_2175%3A1. Public record. Not legal advice.