Writing for a unanimous panel, Judge Tallman upholds a Section 924(c) conviction from a defense "in furtherance" attack. See United States v. Mosley, __ F.3d __, 06 Cal. Daily Op. Serv. 17511 (9th Cir. Oct. 11, 2006), decision available here. A loss for the defendant, but the restrained language in the decision may be a win for the Defense.
Players: Hard fought appeal by D. Alaska AFPD Michael Dieni.
Facts: After Mosley had a car accident a chain of events lead to two searches of his apartment. Id. at 17514-15. In the apartment, cops found a loaded, cocked .22 Beretta pistol (left) on a shelf near the door, two loaded pistols in a bag with cocaine powder on it, gear to make crack cocaine, crack, and seven grand. Id. at 17516. At trial, Mosley moved for a Rule 29 on the § 924(c) count – use of a gun “in furtherance” of a felony. Id. at 17517.
Issue(s): “To prove that Mosley [committed a] . . . violation of § 924(c)(1)(A), the government must show . .. Mosley’s possession of the firearm was ‘in furtherance’ of the drug trafficking crime . . . . Mosley contests only whether the government’s evidence sufficed to establish the third ‘in furtherance’ element.” Id. at 17517-18.
Held: “Here, we are presented with a factual situation that falls between those in Krouse, Mann, and Rios. We hold that the evidence suffices to support a conviction under § 924(c)(1)(A). There can be little doubt that Mosely’s apartment was the base of operations for crack cocaine production and packaging. The substantial sums of cash and the general lack of furniture and personal items support the government’s theory that the apartment was a textbook example of a stash pad. To determine, however, whether the evidence sufficed to establish the requisite ‘nexus’ between the three firearms, and Mosley’s illegal drug trafficking requires us to consider the totality of the circumstances based on the evidence submitted at trial.” Id. at 17522.
Of Note: Writing for the panel, Judge Tallman conceded that “Many cases, including this one, involve more subtle factual situations [than in other § 924(c) decisions], and whether certain facts support a conviction under § 924(c)(1)(A) is sometimes ambiguous under current circuit precedent.” Id. at 17519. This is not the last word on the § 924(c) “in furtherance” inquiry – this is one of precious few federal statutes where there still survives some ambiguity subject to defense challenge.
How to Use: If the Section 924(c) “in furtherance” cases make up a spectrum, Mosley falls pretty squarely into the “bad facts” side of this range. In this case, there was a loaded and cocked gun by the apartment entrance, a scale and other crack-manufacture paraphernalia in the apartment, and not much furniture: all facts emphasized by the Ninth. As Tallman explained, “[W]e reiterate that this inquiry is fact specific, and, as in Krouse, we decline once again to adopt a checklist approach. There are simply too many possible factual scenarios likely to defy any test we may prognosticate based on so few cases in our jurisprudence.” Id. at 17523. There’s still plenty of room to fight a § 924 charge after Mosley – read the decision’s descriptions of the Circuit’s other “in furtherance” cases: Krouse, Mann, and Rios.
For Further Reading: Judge Berzon was part of the unanimous panel in this decision (Kozinski was the third). Interestingly, Judge Berzon also wrote the great Rios decision, rejecting a § 924(c) charge in a sawed-off shotgun case. See blog here. While Mosley is a loss for the defense, the opinion pretty carefully limits its holding to the facts of this case and avoids any broad new rules for the “in furtherance” inquiry. Perhaps Judge Berzon hated to see her great language in the Rios decision undermined, and was a moderating influence in the language of the final decision?
Steven Kalar, Senior Litigator N.D. Cal. FPD. Website at www.ndcalfpd.org