Case o' The Week: Close Enough for Government Work - Chadwell, and Gun "In Connection" with Drugs
United States v. Chadwell, 2015 WL 492536 (9th Cir. Aug. 19, 2015), decision available here.
Players: Decision by DJ Hayes, joined by Judges N.R. Smith and Owens.
Facts: Chadwell was pulled over and the cop’s car video started. Id. *1. He was arrested for being a “habitual traffic offender,” and was agitated when the police started to search the car. Id. The search revealed cocaine in the driver’s side floorboard, a loaded pistol between the front seats, and an unloaded pistol in the glove box. Id. “All of these events were video recorded.” Id. Chadwell stipulated to admission of the guns and ammo and to the admission of 19 minutes of the police video. Id.
On the first day of trial, the cop testified, then the government played the video and rested. Id. The next day the jury asked to watch the video, and then returned a guilty verdict. Id. at *2.
At sentencing, the government introduced testimony regarding the location of the drugs and the guns in the car. Id. Another officer testified about Chadwell’s drug sale to a C.I. eleven days before the stop. Id. The court found beyond a preponderance that the gun had been used “in connection” with the possession of drugs for sale, and applied the four offense-level increase in USSG § 2K2.1(b)(6)(B). Id.
Issue(s): “Chadwell contends that the district court . . . . erred in applying the four-level enhancement under . . . U.S.S.G. § 2K2.1(b)(6)(B) for using or possessing any firearm in connection with another felony offense to calculate his advisory guideline range.” Id. at *1.
Held: Taking all of this evidence into consideration, there was ample support in the record for the district court’s conclusion. The district court did not abuse its discretion when it applied the four-level enhancement under U.S.S.G. § 2K2.1(b)(6)(B). Id. at *6.
Of Note: The primary issue in this case was not the guideline challenge, but an interesting (albeit unsuccessful) attack on the jury’s view of the police video. Id. at *3-*5. Chadwell argued the court abused its discretion by allowing the jury to (again) watch the 19-minute video, alone in the jury room, without the parties or defendant being present. Id. at *3. The Ninth rejected the arguments that this was an undue emphasis on specific evidence, or that it violated Chadwell’s right to be present “at every trial stage.” Id. at *4 (discussing Fed. R. Crim. Proc. 43(a)). As police video and bodycams increase, Chadwell is an early indication of how this evidence will be treated in federal criminal trials.
How to Use: The Court explains that the facts of Chadwell of the sentencing issue are “materially indistinguishable” from the Ninth’s ‘96 Polanco decision. Id. at *5. In Polanco, however, the defendant sold drugs then returned to his car where the gun was stashed. 93 F.3d at 567. In Chadwell, the drug sale was eleven days before the arrest. 2015 WL 492536, at *2. In Polanco, a large amount of cash in the car supported the proof that the gun was used in connection with drug sales. 93 F.3d at 567. In Chadwell, no cash was found in the car or on the defendant. 2015 WL 492536, at *2. In Polanco, the drug-dealing defendant was the only one in or around the car. 93 F.3d at 569. In Chadwell, there was also a male passenger (presumably sitting next to the loaded gun). Id. at *1.
What other facts supported this whopping +4 bump in Chadwell? The (arguably irrelevant) fact that Chadwell was “under a restraining order for threats of violence,” and the fact that Chadwell made “every effort to keep the police from . . . searching the vehicle.” Id. at *5. The four offense-level increase in § 2K2.1(b)(6)(B) is a doozy, and Chadwell’s bar to prove that “connection” is distressingly low. The opinion merits a close read when drugs lurk around a gun case (and some careful thought when potential sentencing exposure).
For Further Reading: For a thorough (though Commission-centric) discussion of the “in connection” specific offense bump under § 2K2.1(b)(6)(B), see “Firearms Primer” at pgs. 21 – 23, available here.
“Guns and Drugs” sign from http://www.nichols-guns.com/
Steven Kalar, Federal Public Defender N.D. Cal. Website at www.ndcalfpd.org