1 The Honorable Richard W. Goldberg, Judge, United States Court of International Trade, sitting by designation. 

## United States Court of Appeals FOR THE EIGHTH CIRCUIT

___________ No. 09-2389

___________ United States of America, *
* Plaintiff – Appellee, * * Appeal from the United States v. * District Court for the * Southern District of Iowa John W. Coleman, *
* Defendant – Appellant. *

___________ Submitted: January 14, 2010 Filed: April 28, 2010

___________ Before MURPHY and BYE, Circuit Judges, and GOLDBERG, 1 Judge.

___________ GOLDBERG, Judge.

Defendant-Appellant John Coleman (“ Coleman” or “defendant”) was convicted of possession of cocaine and ecstasy with intent to distribute, possession of a firearm in furtherance of drug trafficking, and felon in possession of firearms and2 The Honorable Robert W. Pratt, Chief Judge, United St ates District Court for the Southern District of Iowa.
-2- ammunition. He appeals the district court’s 2ruling denying his motion to suppress and the judgments and sentences entered against him following a trial by jury. We affirm.

Coleman was arrested when officers of the Des Moines Police Department stopped a vehicle for an alleged traffic violation. Coleman was sitting in the front seat passenger side of the vehicle. Duri ng questioning, Coleman provided false information to the officers. He was removed from the car and arrested. A 9 millimeter magazine was discovered on Co leman. A loaded Ruger 9 millimeter handgun, cocaine and ecstasy tablets were discovered in the glove box in front of Coleman’s seat. A loaded Taurus .40 caliber handgun and a loaded magazine were discovered behind Coleman’s seat.

Coleman proceeded to trial and the ju ry rendered a guilty verdict on all four charged counts. Coleman was sentenced to a total of 300 months’ imprisonment.

II. Discussion

A. The stop of the vehicle in which th e defendant was a passenger was lawful.

Coleman filed a motion to suppress, asserting that the vehicle stop was unlawful. The district court denied the motion, finding that although the officers did not have authority to stop the vehicle base d on the citation issued for stopping in the traveled portion of a roadway, the officer s had probable cause to stop the vehicle-3- based on a double-parking violation. The di strict court also upheld the vehicle stop based on reasonable suspicion that the occ upants were involved in a drug transaction.

On appeal, Coleman argues that the district court erred in denying his motion because his arrest and the ev idence against him were the products of an illegal vehicle stop. This Court reviews the factual fi ndings underlying a district court’s ruling on a motion to suppress for clear error and its conclusions of law de novo . United States v. Luken , 560 F.3d 741, 744 (8th Cir. 2009).

This Court has held numerous times that “ any traffic violation, regardless of its perceived severity, provides an officer with probable cause to stop the driver.” United States v. Jones , 275 F.3d 673, 680 (8th Cir. 2001) (emphasis original); see also United States v. Pereira-Munoz , 59 F.3d 788, 791 (8th Cir. 1995); United States v. Bloomfield, 40 F.3d 910, 915 (8th Cir. 1994). Here , the arresting officer believed he saw two traffic violations before initiati ng the stop: 1) violation of state law prohibiting stopping in the traveled portion of the roadway under Iowa Code § 321.354; and 2) violation of a city or dinance prohibiting double parking under Des Moines, Iowa, Mun. Code, ch. 114, art. VIII, § 114-358 (a)(9). The government concedes that Coleman was not guilty of th e first alleged traffi c violation because of a statutory exception for business and residential areas. See Iowa Code § 321.354.

Regardless of the validity of a stop ba sed on Iowa Code § 321.354, we agree with the district court that the stop was la wful because of the officer’s observation of a traffic violation for double parking. See Des Moines, Iowa, Mun. Code, ch. 114, art. VIII, § 114-358 (a)(9) (prohibiting stopping or parking a vehicle “on the roadway side of any vehicle stopped or parkedat the edge or curb of a street”). The record indicates that the vehicle in which Coleman wa s a passenger violated this ordinance. Nevertheless, Coleman argues that the government failed to introduce evidence to establish a prima facie violation of the doubl e parking ordinance because the testifying officer never specifically testified that Coleman’s vehicle was in fact stopped or-4- parked next to any other parked vehicle. Howe ver, the officer testified that stopping in the middle of the street next to a ve hicle already stopped on the curbside violates the city’s double parking ordinance and thatColeman’s vehicle was in fact stopped in the middle of a street w ith parked cars on both sides, blocking traffic from a nearby intersection. Although a minor infraction, the officer described his observation of a traffic violation. The stop was thereby lawful because the violation gave the officers probable cause to effectuate a tr affic stop on the vehicle. See Jones , 275 F.3d at 680.

Moreover, a vehicle stop is lawful ba sed upon reasonable suspicion of criminal activity. See United States v. Mora-Higuera , 269 F.3d 905, 909 (8th Cir. 2001) (“an investigative stop of a vehicle does not vi olate the Fourth Amendment if the police have reasonable suspicion that the vehicle or its occupants are involved in criminal activity.”) (citation omitted); Terry v. Ohio , 392 U.S. 1, 25-31, 88 S. Ct. 1868 (1968). A stop based on reasonable suspicion must be supported by specific and articulable facts. United States v. Hughes , 517 F.3d 1013, 1016 (8th Cir. 2008). In determining whether an officer had a “particularizedand objective basis for suspecting legal wrongdoing,” reviewing courts must look at the totality of the circumstances, allowing officers to draw on their experience a nd training. United States v. Arvizu , 534 U.S. 266, 273, 122 S. Ct. 744 (2002). “Factors consis tent with innocent travel, when taken together, can give rise to reasonable susp icion, even though some travelers exhibiting those factors will be innocent. ” United States v. Carpenter , 462 F.3d 981, 986 (8th Cir. 2006). Although reasonable suspicion must be more than a “hunch,” the Fourth Amendment only requires an officer to articulate “some, minimal objective justification for an investigatory stop.” United States v. Fuse , 391 F.3d 924, 929 (8th Cir. 2004).

Our review of the record convinces us the officers had reasonable suspicion of illegal activity sufficient to warrant the st op. The officers saw a car stopped illegally and blocking traffic in an area known for drug trafficking. The car had Illinois plates.-5- Officer testimony stated that Illinois was th e prime source state for cocaine in the Des Moines area and that an out-o f-state licence plate can be indicative that the vehicle is a rental being used for drug trafficki ng to make detection and identifying the occupants more difficult. The officers watched an individual known to be involved in narcotics activity in the past leave his own vehicle across the intersection and enter Coleman’s vehicle. At this point, an o ccupant of Coleman’s vehicle exited the car, opened the trunk, removed something from it, and re-entered the car. Even if an officer cannot see an actual drug exchange, the totality of circumstances may still give rise to reasonable suspicion of criminal activity. SeeUnited States v. Bustos-Torres , 396 F.3d 935, 942 (8th Cir. 2005). The observing officers were experienced in narcotics enforcement and recognized these ev ents as consistent with a street level drug sale. See United States v. Williams , 139 F.3d 628, 630 (8th Cir. 1998) (acts consistent with drug trafficking by a su spected drug dealer in area known for drug activity created reasonable suspicion jus tifying a stop). Taking the events and observations as a whole, an officer coul d reasonably suspect that drug activity was afoot warranting an investigatory stop of Coleman’s vehicle.

Therefore, the stop was lawful based on both the officer’s observation of a traffic violation and reasonable suspicion of drug activity. The motion to suppress was properly denied.

B. Right to effective assistance of counsel.

Claims of ineffective assistance of couns el normally are raised for the first time in collateral proceedings under 28 U.S .C. § 2255. United States v. Hill , 91 F.3d 1064, 1072 (8th Cir. 1996). Coleman first assert ed a claim of ine ffective assistance of counsel in his initial § 2255 petition. The district court found that Coleman’s trial counsel was ineffective for failing to file a timely notice of appeal. The district court dismissed the other ineffective assistance cl aim, failing to call defense witnesses, as3 The jury did not find that Coleman possessed the Taurus .40 caliber handgun, located in the backseat, in fu rtherance of drug trafficking.
-6- moot but without prejudice. On appeal, Coleman now argues he was denied his right to effective assistance of counsel under th e Sixth Amendment when his trial counsel conceded to the jury that Coleman was guilty of being a felon in possession of a firearm. This court has de termined that we will not r each Coleman’s new ineffective assistance of counsel argument on direct appeal but rather leave it for further development if Coleman chooses to file a § 2255 petition

.

C. The plain error in the jury instruction for 18 U.S.C. § 924(c) did not deny Coleman of his due process rights.

The jury received, without objection, th e then-existing 8th Circuit Model Jury Instruction for Possession of a Firearm infurtherance of a Drug Trafficking Offense under 18 U.S.C. § 924(c). The jury return ed a verdict finding Coleman guilty of possession of the Ruger 9 mm handgun, locat ed in the glove compartment, in furtherance of drug trafficking. 3 On appeal, Coleman assert s that he was denied his Fifth Amendment due process rights when th e trial court, without objection by trial counsel, failed to properly instruct the jury on this count.

Where the defendant did not object to th e challenged jury instruction at trial, this Court reviews the instruction for plain error. United States v. Kent , 531 F.3d 642, 655 (8th Cir. 2008). The defendant must show “(1) an error, (2) that was plain, (3) affects substantial rights, and (4)...seriously affects the fairness, integrity, or public reputation of judicial proceedings.” United States v. Rush-Richardson , 574 F.3d 906, 910 (8th Cir. 2009). The government admits th at the instruction was “error” that was “plain” based upon an 8th Circuit decision, ni ne months after the trial, finding a nearly5 In Kent , the Court reasoned that the instru ction defined “in furtherance of” in nearly identical terms as th e Supreme Court had defined “during and in relation to.” Since prior decisions had determined that “in furtherance of” was a slightly higher level of participation than “during and in relation to,” the court concluded that the instruction allowed the jury to convictthe defendant on the lesser activity of possessing the firearm “in relation to” the drug offense. Kent , 531 F.3d at 654.
-7- identical instruction erroneous. SeeUnited States v. Kent , 531 F.3d 642 (2008). 5 Therefore, the issue is whether the error affected Coleman’s substantial rights and seriously affected the fairness, integrity, or public reputation of judicial proceedings. See Rush-Richardson 574 F.3d at 910.

Coleman’s argument that the error affect ed his substantial rights fails because Coleman cannot demonstrate prejudice. See Kent , 531 F.3d at 656 (an error affects substantial rights if the error was prejudi cial, which requires showing “a reasonable probability that, but for [the error claime d], the result of the proceeding would have been different.”) “To convict a defendant of possessing a fi rearm in furtherance of a drug trafficking crime, the jury must have found a nexus between the defendant's possession of the firearm and the drug offense.” United States v. Thorpe, 447 F.3d 565, 568 (8th Cir. 2006). Coleman is unpers uasive in downplaying the nexus between his possession of the firearm and the drug offe nse. Coleman asserts that the gun could have been used for an independent firearm sale, a totally unrelated purpose not in furtherance of the drug sales. However, “we have repeatedly held that a jury may find the requisite nexus when a firearm is disc overed in close proximity with drugs so as to support an inference that the firearm is for the protection of the drugs.” United States v. Saddler , 538 F.3d 879, 888 (8th Cir. 2008), quoting United States v. Williams , 512 F.3d 1040, 1044 (8th Cir. 2008), cert. denied, --- U.S. ----, 128 S. Ct. 2918 (2008). The Ruger 9 mm was located al ong with cocaine and ecstacy in the glove box, directly in front of Coleman. Coleman also had a spare cartridge to the Ruger in his pocket and was actively selling cocaine and ecstasy prior to apprehension by the police. The proximity of the fi rearm to the drugs and Coleman himself-8- supports the jury’s conviction on this countand undermines Coleman’s claim that the jury instruction affected his substantial rights.

Coleman’s attempt to analogize the f acts of his case to Rush-Richardsonis unpersuasive. See Rush-Richardson574 F.3d at 912-913 (finding prejudice in the jury instruction for possession of a firearm in furtherance of drug trafficking). In Rush-Richardson , after a controlled buy from the de fendant, a subsequent search of the defendant’s house revealed guns in areas of the home other than the defendant’s room, located away from drugs, and the defe ndant claimed he was not aware of the guns’ presence. Id. In contrast, in this case, th e gun was stored with the narcotics, accessible to Coleman if necessary to prot ect the narcotics, a ny money obtained from dealing, or himself. Thus, Coleman has not established a reasonable probability that he would not have been convicted of the offense if a proper instruction was used.

Moreover, the error did not substantially affect the fairness, integrity, or public reputation of the judicial proceed ing. As the court found in Kent , a rule announcing that the judge’s failure to act sua sponte by striking the then-existing model jury instruction is a step toward “blurr[i ng] the line between an adversarial and inquisitorial system of justice.” Kent , 531 F.3d at 656. Therefore the jury instructions did not deny Coleman his due process rights.

III. Conclusion

For the foregoing reasons, the judgment of the district court is affirmed.

BYE, Circuit Judge, concurring in part and dissenting in part.

I join in the Court's decision in most re spects, but with one exception. I believe the erroneous jury instruction on the charge of possessing a firearm in furtherance of-9- a drug crime requires a new trial. I ther efore respectfully dissent from Section II(C) of the Court's opinion, and from the result.

The Court concludes the erroneous jury instruction did not affect Coleman's substantial rights without even conducting the appropriate inquiry, i.e., whether Coleman can show there is "a reasonable probability that, but for the error claimed,the result of the proceeding would have been different." United States v. RushRichardson , 574 F.3d 906, 911 (8th Cir. 2009) (citation omitted). Instead, the Court focuses on whether the evidence establishe d a nexus between the firearm and the drugs, citing sufficiency-of-the-evidence cases for the unremarkable proposition – inapplicable here – that evidence is sufficient for a jury to find the requisite nexus when a firearm is discovered in close pr oximity with drugs. But Coleman is not challenging the sufficiency of the evidence. He contends there is a reasonable probability the jury may have acquitted him of the firearm-in-furtherance charge if properly instructed on the charge. The factthat there was suffi cient evidence for the jury to convict him is irrelevant; the analysis conducted by the Court is entirely unhelpful, and threatens to add to the confus ion in future cases wh en courts are called upon to perform plain error review.

Notwithstanding the undisputed sufficiency of the evidence to convict Coleman of the firearm-in-furtherance charge, Cole man can show a reasonable probability the result of the proceeding would have been different if the jury had been properly instructed. As the Court acknowledges, Cole man asserted he was not using the Ruger 9 millimeter gun in furtherance of his drug sales. Coleman contends the gun was merely another one of his products, like the drugs, which he was attempting to sell. Direct evidence introduced by the governme nt's own witness supports Coleman's assertion.

The government called Eugene Brewer, oneof the occupants in the Grand Prix vehicle stopped and searched by the officers, as a witness. Brewer was sitting in the-10- back seat of the vehicle, on the passenger side. Coleman was sitting in the front passenger seat. Brewer testified to the ev ents which occurred in the vehicle prior to the traffic stop. Brewer told the jury wh en he entered the car, Coleman directed his attention to the map pocket on the back sideof Coleman's seat and told him he had "tools" for sale. "Tools" is a Chicago str eet term for guns. Inside the map pocket was the Taurus .40 caliber semi-automatic pistol.

Significantly, Brewer specifically referred to plural "tools" for sale, not a singular "tool." Thus, there was dir ect evidence introduced by the government indicating Coleman was selling both firearm s found in the car, rather than possessing either one of them in furtherance of a drug crime. Armed with th is direct evidence as to Coleman selling both firearms, I cannot say with certainty that an able and experienced defense counsel could not have persuaded at least one juror there was reasonable doubt to overcome the mere infere nce – due to the proximity of the drugs and one of the firearms – that the Ruger handgun was used in furtherance of the drug crime. Indeed, as the Court acknowledges, the jury did not find Coleman guilty of the possession-in-furtherance count with respect to the Taurus .40 caliber pistol also found in the vehicle, despite its relative proximity to the drugs.

Because there is no dispute the jury was erroneously instructed, and the evidence created a close question as to whether Coleman was merely selling both firearms rather than using one of them in furtherance of a drug crime, Coleman's conviction on the firearm charge should be vacated and this case should be remanded for a new trial on that count.

I therefore must and do respectfully dissent.

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