2011 D e c i sion s O p inion s of the U nit e d S t a t e s C our t of Appe al s for the Thir d C ir c uit

11-22-2011 

# U S A v . An thon y J ohnson , J r

. P r e c e de n t i al or N on-P r e c e de n t i al : N on-P r e c e de n t i al
D ock e t N o . 10-3171

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w . v i l l a no v a . e du/thir dc ir c uit_2011/166NOT PRECEDENTIAL UNITED STATE COURT OF APPEALS FOR THE THIRD CIRCUIT

_____________

No. 10

- 3171

_____________ UNITED STATES OF AMERICA

v. ANTHONY JOHNSON, JR., Appellant

_____________ On Appeal from the United States District Court for the Western District of Pennsylvania ( D.C. Criminal No. 2:08

- cr - 00285 ) District Judge: Hon. Gustave Diamond

_____________ Submitted Under Third Circuit LAR 34.1(a) October 26, 2011 Before: FISHER, VANASKIE and ROTH Circuit Judges (Filed : November 22, 2011 )

_____________ OPINION

_____________ VANASKIE, Circuit Judge. Anthony Johnson , Jr. , appeal s his conviction on two counts of possession with intent to deliver more than five grams of crack cocaine in violation of 21 U.S.C § 841 (a)(1) and § 841(b)(1)(B)(iii) , and one count of possessing a firearm “ in relation to ” and “in furtherance” of a drug trafficking offens e in violatio n of 18 U.S.C. § 924(c)

.2 Johnson contends that the evidence i s insufficient to sustain a conviction on any of the three counts. Johnson also contends the D istrict C ourt incorrectly denied his motio n to suppress evidence seized from his person and did not properly instruct the jury regarding the elements of a violation of 18 U.S.C. § 924(c)

. We reject these argument s and will affirm.
I.
W e write primarily for the parti es, who are familiar with the facts and procedural history of this case . Accordingly , we will relate only those facts necessary to our analysis. Aliquippa Police Sergeant Robert Sealock was on routine patrol with another officer in a marked vehicle on Au gust 23, 2007 at about 12:20 a.m. , when he initiated a traffic stop of a Buick sedan being driven by Johnson. The Buick had dark

- tinted windows in violation of 75 Pa. C.S. § 4524(e)

. L oud musi c was also coming from the vehicle

. 1
As Sergeant Sealock a pproached the car , he observed Johnson through the open driver ’ s window leaning toward the passenger side of the vehicle

. When Sergeant Sealock addressed him, Johnson appeared nervous, and was s weating and stuttering

. Sealock recognized Johnson based upon prior encounters with him , and was aware that Johnson had been involved in several incidents involving firearms and that Johnson had

1 Johnson was charged in state court with disorderly conduct because of the loud music and with violating § 4524(e) of the Pennsylvania Motor Vehicle Code, which prohibits the operati on of a vehicle with “any sun screening device or other material which does not permit a person to see or view the inside of the vehicle through the windshield, side wing or side window of the vehicle.” 75 Pa. C.S. § 4524(e)

.3 been associated with drug traffickers. Sealock then observe d a n open box of plastic sandwich baggies inside the car

. Based on his training and experience, Sealock knew that sandwich baggies are sometimes used to package narcotics

. Sergeant Sealock asked Johnson to step out of the car

. Upon conducting a pat

dow n of Johnson ’ s outer clothing, Sealock felt a large bulge in Johnson ’ s right pocket , which , based on his experience, felt like crack cocaine

. He retrieved a sandwich baggie from Johnson ’ s right pocket and placed him under arrest

. Sealock opened the baggi e and counted eighty

- sev en individually

- wrapped rocks. The eighty

- seven rocks weighed 8.2 grams and were confirmed to be crack cocaine by the Pennsylvania Police Crime Lab. Sealock also found a cell phone and $160 on Johnson

. The Buick was inventoried a nd no drug use items, such as crack pipes, were found in the car or on Johnson ’ s person . Johnson was stopped by Sergeant Sealock for a second time on March 5, 2008

. Sealock, while responding to a call for back

- up on an unrelated traffic stop, observed a n Oldsmobile Alero pass a pick

- up truck in a no - passing zone. Sealock a ctivated his lights and siren to pass the Alero so he could proceed to the back

- up site. The Alero did not move over to allow Sealock to pass . I nstead , the Alero accelerated , traveli ng approximately 50 miles per hour in a 25 mile per hour speed zone while also speeding through a stop sign. The Alero eventually pulled over and Sealock nudged it with his police car. Johnson was driving the Alero and was the lone occupant of the vehicl e. Johnson jumped out of the Alero and proceeded toward the middle of the road

. Sealock caught Johnson and placed him under arrest

. Sealock patted Johnson down and found three cell phones.4 Officer Eric McPhilomy arrived on the scene and informed Sealoc k that he had observed crack cocaine inside the Alero

. Sealock then looked inside the Alero with a f

lashlight and observed a piece of suspected crack cocaine inside a plastic baggie on the floor in front of the driver’s seat

. Sealock and McPhilomy took p hotographs of the scene and then had the Alero towed to a garage . A search of the Alero on the afternoon of March 5, 2008 , pursuant to a warrant resulted in the discovery of crack cocaine in a sandwich baggie and a handgun . The weapon was found under t he driver ’ s seat, with the handle facing towards the front of the

car , in close proximity to the baggie of crack cocaine. 2

On July 30, 2008, a grand jury in the Western District of Pennsylvania returned a three

- count Superseding Indictment charging Johnson with two counts of possession with intent to distribute five grams or more of crack cocaine in violation of 21 U.S.C. §§ 841(a)(1) and 841(b)(1 )(B)(iii) (Counts One and Two), and carrying a firearm in furtherance of and in relation to a drug trafficking crime in violation of 18 U.S.C. § 924(c) (Count Three). Johnson filed a Motion to Suppress Evidence , and a hearing was The handgun had been reported as stolen from a private residence on February 21, 2007 , and i s a firearm as defined by 18 U.S.C. § 92 1(a)

. A live magazine was inside the firearm with one round inside the chamber, operable and ready to fire. Johnson did not have a license to carry a firearm or a valid sportsman ’ s firearms permit under Pennsylvania law

.

2 It was subsequently learned that the owner of the Alero was Johnson’ s girlfriend, Lakeya Whatley. Ms. Whatley had been driven to the hospital in the Alero by Johnson on March 4, 2008 , whe re she delivered a baby. Johnson had possession of the Alero thro ugh out March 5, 2008. Ms. Whatley denied ownership of the crack and the firearm found in her car

.5 held on December 1, 2009

. By Opinion and Order filed on January 27, 2010, the D istrict C ourt denied Johnson ’ s Motion to Suppress Evidence

. Johnson was tried by a jury beginning on March 9, 2010 , and found guilty on all counts on March 11, 2010

. On July 14, 2010, t he D istrict C ourt sentenced Johnson to a 120

- month term of imprisonment, consisting of 60 months on Counts One and Two plus a con secutive 60 months to be served on Count Three.
II. We have jurisdiction over this appeal pursuant to 18 U.S.C. § 3742(a) and 28 U.S.C. § 1291

. We will first address Johnson ’ s challenge to the sufficiency of evidence
to support his convictions.
A. Johnson moved for judgment of acquittal at the close of the Government ’ s case and at the close of testimony

. T he District C ourt denied the m otion

. When a sufficiency of evidence challenge has first been made in the district court, we exercise plenary review on appeal and ask “ whether there is substantial evidence that, when viewed in the light most favorable to the government, would allow a ration al trier of fact to convict. ” United
States v. Bornman , 559 F.3d 150, 152 (3d Cir. 2009) ( quoting United States v. Helbing , 209 F. 3 d 226, 238 (3d Cir. 2000 ) ) . Th ough plenary, the “ standard of review is highly deferential. ” Id

. ( quoting Helbing , 209 F. 3 d at 238 )

.

“ A conviction for possession with intent to distribute drugs requires that the defendant knowingly and i ntentionally possessed drugs with the intent to distribute them. ” United States v. Iafelice , 978 F.2d 92, 95 (3d Cir. 1992)

. John son concedes that6 he was found wit h crack cocaine on both dates

. Proof of his intent to distribute the crack cocaine could be made through circumstantial evidence

. See United States v. Johnson , 302 F.3d 139, 149 (3d Cir. 2002)

. Michael Warfield, a seventeen

- year veteran of the Pennsylvania State Police, testified as an expert, without objection by Johnson, regarding the c haracteristics of drug trafficking

. 3

3 We recognize that “operations of narcotics dealers is a proper field of expertise,” an expert may testify about “the quantity, purity, usage dosage unit s, and street value of narcotics,” and “experts may describe, in general and factual terms, the common practices of drug dealers.” United States v. Watson , 260 F.3d 301, 306 (3d Cir. 2001)

. Warfield explained the process of cu tting cocaine for distribution; the value of a “rock” of cocaine; how drug traffickers sell smaller quantities as street level dealers; the packaging of a rock of crack; and the significance of the presence of cash as well as the use of plastic baggies and multiple cell phones

. Warfield also explained the role firearms play in the world of drug trafficking. Based on his experience and training, Warfield concluded that Johnson ’ s possession of 5.6 grams of crack on March 5, 2008 and 8.2 grams of crack on Au gust 23, 2007 was consistent with someone possessing drugs with the intent to distribute them

. Warfield explained that w ith 8.2 grams of crack divided into 87 rocks, the rocks could have been sold for $870 , if they were sold as ten

dollar rocks , or for ov er $1,700 , if they were sold as twenty

- dollar rocks

. Warfield further testified that he would not expect someone who had eight grams or five grams of crack to be found with any drug paraphernalia becau se that person would be selling, not using , the d rug . This evidence was plainly sufficient to support a finding of guilt on the drug trafficking offenses charged in Counts One and Two of the Superseding Indictment.7 Johnson also challenges the sufficiency of the evidence on Count Thre e, charging him with a violation of 18 U.S.C. § 92 4(c)(1)(A) by carrying a firearm during and in relation to a drug trafficking crime and possessing a firearm in furtherance of such a crime. To prove a violation of 18 U.S.C. § 924(c) (1)(A) arising out of possession of a firearm in furtherance of a drug trafficking crime, the government must prove: (1) the defendant committed the crime of possession with intent to distribute n arcotics ; (2) the defendant knowingly possessed a firearm; and (3) the defendant knowingly possessed the firearm in furtherance of the offense of possession with intent to distribute. 4

The first element is established by virtue of the jury’s guilty ve rdict on Count Two of the Supers eding Indictment. The second element, knowing possession of a firearm, may be established by actual or constructive possession. See United States v. Cunningham , 517 F.3d 175, 178 (3d Cir. 2008)

. “ A person who, although not in actual
po ssession, knowingly has both the power and the intention at a given time to exercise United
States v. Bobb , 471 F.3d 491, 496 (3d Cir. 2006)

.

4 The elements the government must establish beyond a reasonable doubt to obtain a conviction for carrying a firearm during and in relation to a drug trafficking crime include the first two elements for possessing firearm in f urtherance of a drug trafficking crime. The additional element that the firearm be carried during and in relation to a drug trafficking crime requires proof that the firearm “facilitate[d], or ha[d] the potential [to] facilitat[e]” the drug trafficking cr ime. See United States v. Loney , 219 F.3d 281, 287 (3d Cir. 2000) (quoting Smith v. United States , 508 U.S. 223, 238 (1993)). We have acknowledged that “ C ongress may well have intended ‘in furtherance’ to impose a more stringent standard than ‘in relatio n to.’” Id. ; see also United States v. Combs , 369 F.3d 925, 932 (6th Cir. 2004) (noting that the “in furtherance” standard is a “ sli ghtly higher standard” and “encompass[es] the ‘during and in relation to’ language” ). Because we find the evidence suffici ent to sustain a conviction that Johnson possessed a firearm in furtherance of the drug trafficking crime, the evidence is also sufficient to sustain a conviction for carrying a firearm during and in relation to the drug trafficking crime.8 dominion or control over a thing, either directly or through another person or persons, is then in constructive possession of it. ” United States v. Garth , 188 F.3d 99, 11 2 (3d Cir. 1999) (quoting United States v. Blackstone , 940 F.2d 877, 883 (3d Cir

. 1991 ) ). Dominion and control need not be exclusive, but they must be established by something more than “ [m]ere proximity. ” United States v. Introcaso , 506 F.3d 260, 270

- 71 (3d Cir. 2007)

. The third element of the charged crime requires an assessment of the totality of the evidence to determine whether “ possession of the firearm advanced or helped forward a drug trafficking crime. ” United States v. Sparrow , 371 F.3d 851, 853 (3d Cir. 2004)

. The following non

- exclusive factors may be considered in determining that a gun was possessed “ in furtherance ” of a drug trafficking crime: “ the type of drug activity that is being conducted, accessibility of the firearm, the type of the weapon, whether the weapon is stolen, the status of the possession (legitimate or illegal), whether the gun is loaded, proximity to drugs or drug profits, and the time and circumstances under which the gun is found. ” Id. (quoting United States v. Ceballos

- Torres , 218 F.3d 409 , 414

- 15 (5th Cir. 2000) )

. With these factors in mind, and viewing the evidence in the light most favorable to the government, we conclude that the jury had sufficient evidence to support a conviction under 18 U.S.C. § 924(c) (1)(A). Johnson fled from the Aliquippa police on March 5, 2008 in a n Oldsmobile Alero

. Sergeant Sealock seized crack cocaine from the floor of the Alero and found a handgun under the driver ’ s seat, with the handle facing towards the front of the car

. The handgun is a firearm as defined by 18 U.S.C. § 921(a)

. A live9 magazine was inside the firearm with one round inside the chamber, operable and ready to fire. The handgun had been reported as stolen and Johnson did not have a license to carry a firearm or a valid sportsman ’ s firearms permit under Pennsylva nia law

. Although Johnson did not own the car, its owner

— Johnson’s girlfriend

— denied ownership of the
gun. It was quite reasonable for the j ury to conclude that the weapon w as placed strategically so that Johnson could defend his drugs and money. See Un ited States v.
Lawrence , 308 F.3d 623, 630 (6th Cir. 2002)

. Accordingly, Johnson’s challenge to the sufficiency of the evidence on Count Three fails.
B. Johnso n also contends the D istrict C ourt committed plain error in its instructions to the jury regarding the elements of 18 U.S.C. § 924(c)(1)(A)

. Specifically, Johnson argues that the D istric t C ourt erred by not instructing the jury that it must find that Johnson possessed a firearm both “in r elation to” and “in furtherance of ” drug trafficking activity because that is how the charge wa s described in the Superseding Indictment. Johnson did not raise an objection to the District C ourt ’ s instruction to the jury regarding a violation of 18 U.S.C. § 924(c)(1)(A) . Therefore, we review for plain error , and will reverse only if the trial court committed error that was fundamental and highly prejudicial. Alexander v. Riga , 208 F.3d 419, 426

- 27 (3d Cir. 2000)

. We have held that while an indi ctment employs the conjunctive, ju ry instructions may employ the disjunctive where , as here, the statute employs the disjunctive. United
States v. Cusumano , 943 F.2d 305, 311 (3d Cir. 1991)

. The D istrict C ourt instructed the jury on both the “in relation to” aspect of § 9 24(c)(1)(A), as well as the “in furtherance10 of” aspect , explaining that a unanimous finding of guilt on either would be sufficient to convict Johnson under § 924(c)(1)(A). This instruction clearly survives plain error review. C. Finally, Johnson challenges the D istrict C ourt ’ s deni al of hi s M otion to S uppress E vidence seized from his person by Sergeant Sealock on August 23, 2007

. We review the District C ourt ’ s denial of a motio n to suppress for clear error as to the underlyin g factual findings and exercise plenary review of the D istrict C ourt ’ s application of the law to those facts. United States v. Delfin

- Colina , 464 F.3d 392, 39 5

- 9 6 (3d Cir. 2006)

. A traffic stop of a vehicle and the detention of its occupants is a “ seizure ” under the Fourth Amendment. See Whren v. United States , 517 U.S. 806, 809

- 10 (1996)

. A warrantless seizure based on less than probable cause is permissible “ where a police officer observes unusual conduct which leads him reasonably to conclude in light of his experience that criminal activity may be afoot and that the person with whom he is dealing may be armed and presently dangerous .” Terry v. Ohio , 392 U.S. 1, 30 (1968)

. Under those circumstances, the officer “ is entitled for the protection of himself and others in the area to conduct a carefully limited search of the outer clothing of such persons in an attempt to discover weapons which might be used to assault him. ” Id

. The reasonable suspicion standard applies to routine traffic stops. Delfin

- Colina , 464 F.3d at 39 7

. The Government bears the initial burden of proving that authorities had specific, articulable facts to justify a reasonable suspicion that an individual has violated the traffic laws. Id

. “ ‘R easonable suspicion ’ is a less demanding standard than probable11 cause and requires a showing considerably less tha n preponderance of the evidence. ” Illinois v. Wardlow , 52 8 U.S. 119 , 123 (2000)

. Only a “ minimal level of objective justification” is necessary

. Id. The stop of the Buick was based on an articulable and re asonable suspicion that ei ther the vehicle or an occupant violated the law. See United States v. Johnson , 63 F.3d 242, 245 (3d Cir. 1995)

. Sergeant Sealock stopped Johnson ’ s vehicle because of the tinted wind ow s in violation of 75 Pa. C .S. § 4524(e ) and the loud music. After pulling the car over, Sealock recognized Johnson and had concerns for his safety because o f Johnson ’ s associatio n with individuals that traffic in narcotics . Sealock was also concerned for his safety because he knew Johnson had been involved in other incidents involving firearms

. Sealock saw Johnson making a furtive movement by leaning toward the passenger side of the car. Johnson also appeared nervous, and was sweating and stuttering

. Sealock then observed an open box of plastic sandwich bags inside the vehicle as he spoke with Johnson and he knew that plastic baggies are sometimes used in packaging narcotics

. Sealock also knew that people who traffic in narcotics carry firearms “ a lot of times

. ” (A. 132.) Based on this knowledge , Sealock was concerned that Johnson may be armed and dangerous

. Viewing these circumstances in their entirety, Sealock was justifie d in believing that Johnson may have been armed and dangerous , warranting a protective pat

- down for a weapon

. Johnson contends that the purpose of the protective pat

- down search was limited to a search for a weapon and that the seizure of crack cocaine ex ceeded the scope of the warrantless search. P olice officers may seize non

- threatening contraband detected during12 a protective pat

- down search “ so long as the officers ’ search stays within the bounds marked by Terry

. ” Minnesota v. Dickerson , 508 U.S. 366, 373 (1993)

. In United States

v. Yamba , we defined the scope of a “ plain feel ” search under Dickerson and determined that the proper inquiry “ is not the immediacy and certa inty with which an officer knows an object to be contraband or the amount of manipulation required to acquire that knowledge, but rather what the officer believes the object is by the time he co ncludes that it is not a weapon

. ” 506 F.3d 251, 259 (3d Cir. 2007)

. As we explained in Yamba , it is permissible to confiscate contraband if “ spontaneously discovered during a properly executed Terry search. ” Id. When determ ining whether the scope of a particular Terry search is proper , “ the areas of focus should be whether the officer had probable cause to believe an object was contraband before he knew it not to be a weapon and whether he acquired that knowledge in a manner consistent with a routine frisk

. ” Id

. If the officer develops probable cause to believe, given his training and experience, that an object is contraband before he eliminates the possibility that it is a weapon, he may lawfully
pe rform a more intrusive search , and if he discovers contraband, he may seize it and it will be admissible against the suspect

. Id

. Viewing the totality of the circumstances, we are satisfied that Sergeant Sealock had probable caus e to believe the object he felt in Johnson ’ s pocket was contraband at the same moment or before he determined it was not a weapon. As in Yamba , Sealock ’ s belief that the object he felt was crack cocaine “ was reached quickly and upon minimal manipulation , ” consistent with a routine Terry

- frisk

. See id. at 260

. Based on Sealock ’ s experience and training, he was able to identify the object as contraband. In short,13 Sealock was “ able to point to specific and articulable facts, which t aken together with rational inferences from those facts, reasonably warrant [ed] the intrusion. ” Terry , 392 U.S. at 21

. Accordingly, the District Court did not err in denying Johnson’s Motion to Suppress.
III. For the foregoing reas ons, we will affirm the conviction and judgment of the District Court.