United States Court of Appeals

FOR THE EIGHTH CIRCUIT

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No. 07-2160

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United States of America, *

*

Plaintiff - Appellee, *

* Appeal from the United States

v. * District Court for the Southern

* District of Iowa.

Gary Edward Close, *

*

Defendant - Appellant. *

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Submitted: December 11, 2007

Filed: March 10, 2008

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Before BYE, JOHN R. GIBSON, and MELLOY, Circuit Judges.

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JOHN R. GIBSON, Circuit Judge.

Gary Edward Close and his wife, Malinda Close, were indicted for conspiracy

to distribute methamphetamine, 21 U.S.C. §§ 846 & 841(b)(1)(A), possession with

intent to distribute methamphetamine, 21 U.S.C. § 841(a)(1) & (b)(1)(C), and

possession of a firearm in furtherance of drug trafficking, 18 U.S.C. § 924(c)(1)(A).

Malinda Close pled guilty to the conspiracy count and was sentenced according to a

plea agreement. Gary Close pled guilty to the counts of conspiracy and possession

with an intent to distribute, but was convicted by a jury of the firearms offense. The
1

The Honorable Ronald E. Longstaff, United States District Judge for the

Southern District of Iowa.

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district court1

 sentenced Gary Close to two concurrent 120-month sentences for the

first two counts and one 60-month sentence, to run consecutively, for the firearms

offense. On appeal, Close challenges the sufficiency of the evidence to support the

firearms conviction. We affirm.

On March 2, 2005, members of the Mid-Iowa Narcotics Enforcement Task

Force, pursuant to a search warrant, conducted a search of the residence of Gary and

Malinda Close in Des Moines, Iowa. The officers knocked, announced their presence,

waited approximately thirty seconds, and then forced entry into the residence.

Malinda Close was handcuffed after she came out of a back bedroom of the residence.

Polk County Deputy Sheriff Randy Tobey and another officer entered the bedroom

and observed Gary Close lying on the bed. Deputy Tobey observed Gary Close roll

off the bed, away from the officers, where he was on his knees with his hands out of

view. Close appeared to be searching for something on the floor. According to

Deputy Tobey, he and the other officer ordered Close to show his hands numerous

times, which caused Close to “search faster with his hands for whatever he was

looking for.” Finally, Close stopped and raised his hands. Deputy Tobey testified that

when he secured Close he appeared to be under the influence of methamphetamine.

The officers seized methamphetamine packaged for resale from the bedroom,

along with digital scales, packaging material commonly used to package drugs for

resale, and a small amount of cash. They also found three guns in the bedroom: a

shotgun under the bed, a rifle behind nightstand, and a semi-automatic pistol in the

nightstand. A video surveillance and recording system was also discovered in the

bedroom. It consisted of a fourplex monitoring system, showing four different

exterior views of the residence.
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Close argues there was insufficient evidence to support the jury verdict

convicting him of possession of a firearm in furtherance of drug trafficking. We

review sufficiency of the evidence de novo, and “will affirm if the record, viewed

most favorably to the government, contains substantial evidence supporting the jury's

verdict, which means evidence sufficient to prove the elements of the crime beyond

a reasonable doubt.” United States v. Lopez, 443 F.3d 1026, 1030 (8th Cir.) (en

banc), cert. denied, 127 S. Ct. 214 (2006). A conviction for possessing a firearm in

furtherance of a drug trafficking crime requires that the government prove a nexus

between the defendant’s possession of the firearm and the drug crime. United States

v. Bell, 477 F.3d 607, 613 (8th Cir. 2007). Mere possession of drugs and a firearm

at the same time is insufficient to support a conviction. Id. at 613-14. However, the

jury may infer that the firearm was used in furtherance of a drug crime when it is kept

in close proximity to the drugs, it is quickly accessible, and there is expert testimony

regarding the use of firearms in connection with drug trafficking. Id. See also United

States v. Sanchez-Garcia, 461 F.3d 939, 946-47 (8th Cir. 2006) (gun was kept in

bedroom directly adjacent to kitchen were drugs were kept and expert testified as to

use of firearms for protection of drugs).

The facts in Bell are similar to the facts in this case. When police entered the

bedroom while executing a search warrant, Bell slid from the bed to the floor and

reached toward the bed as if to retrieve something. A revolver was found in that area,

and Bell’s pants were close by. Crack cocaine was stashed in a pocket of his pants,

and Bell admitted the crack was his. Bell, 477 F.3d at 612-14. Here, the officers

found three guns in Close’s bedroom, which is where they also found

methamphetamine packaged for resale, digital scales, and packaging materials.

Deputy Tobey also testified that Close was reaching for something under the bed

when police entered the bedroom, which is where the shotgun was found, and that

Close had to be told at least ten times to put his hands up before he complied. There

was testimony in both Bell and here that firearms are used by drug dealers to protect

their money and their drugs from other drug dealers and from police. Id. at 614.
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Moreover, Close’s bedroom was equipped with sophisticated surveillance equipment

monitoring the exterior of the house, strengthening the proposition advanced by the

government that Close wanted to be warned about approaching danger so he could

take action.

Close argues that the jury failed to consider the unrebuked testimony of Close

and his wife that the guns were kept in the bedroom in order to keep them away from

their son and that they installed the surveillance equipment in response to recent

neighborhood burglaries. “A defendant challenging the sufficiency of the evidence

confronts a high hurdle.” Bell, 477 F.3d 614 (internal quotation marks omitted).

When reviewing a verdict, we do not question credibility determinations made by the

jury. United States v. Haney, 23 F.3d 1413, 1416 (8th Cir. 1994). A jury is free to

believe or reject a witness’s testimony in part or in whole. United States v. Montano,

506 F.3d 1128, 1133 (8th Cir. 2007). Close and his wife were biased witnesses and

we will not scrutinize the jury’s rejection of their testimony. Close’s conviction is

supported by sufficient evidence.

For these reasons, we affirm the judgment of the district court. 

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