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

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No. 09-2389

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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. *

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Submitted: January 14, 2010

Filed: April 28, 2010

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Before MURPHY and BYE, Circuit Judges, and GOLDBERG,1

 Judge.

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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 and
2

The Honorable Robert W. Pratt, Chief Judge, United States District Court for

the Southern District of Iowa.

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ammunition. He appeals the district court’s2

 ruling 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. During questioning, Coleman provided false

information to the officers. He was removed from the car and arrested. A 9

millimeter magazine was discovered on Coleman. 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 jury 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 the 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 based on the citation issued for stopping in the

traveled portion of a roadway, the officers had probable cause to stop the vehicle
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based on a double-parking violation. The district court also upheld the vehicle stop

based on reasonable suspicion that the occupants were involved in a drug transaction.

On appeal, Coleman argues that the district court erred in denying his motion

because his arrest and the evidence against him were the products of an illegal vehicle

stop. This Court reviews the factual findings 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 initiating 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 ordinance 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 the first alleged traffic violation because of

a statutory exception for business and residential areas. See Iowa Code § 321.354.

Regardless of the validity of a stop based on Iowa Code § 321.354, we agree

with the district court that the stop was lawful 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 parked at the edge or curb of a street”). The record indicates

that the vehicle in which Coleman was a passenger violated this ordinance.

Nevertheless, Coleman argues that the government failed to introduce evidence to

establish a prima facie violation of the double parking ordinance because the testifying

officer never specifically testified that Coleman’s vehicle was in fact stopped or
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parked next to any other parked vehicle. However, the officer testified that stopping

in the middle of the street next to a vehicle already stopped on the curbside violates

the city’s double parking ordinance and that Coleman’s vehicle was in fact stopped

in the middle of a street with 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 traffic stop on the vehicle. See Jones, 275 F.3d at 680.

Moreover, a vehicle stop is lawful based 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 violate 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 “particularized and objective basis for suspecting legal

wrongdoing,” reviewing courts must look at the totality of the circumstances, allowing

officers to draw on their experience and training. United States v. Arvizu, 534 U.S.

266, 273, 122 S. Ct. 744 (2002). “Factors consistent with innocent travel, when taken

together, can give rise to reasonable suspicion, 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 stop. The officers saw a car stopped illegally

and blocking traffic in an area known for drug trafficking. The car had Illinois plates.
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Officer testimony stated that Illinois was the prime source state for cocaine in the Des

Moines area and that an out-of-state licence plate can be indicative that the vehicle is

a rental being used for drug trafficking 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 occupant 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. See United States v. Bustos-Torres,

396 F.3d 935, 942 (8th Cir. 2005). The observing officers were experienced in

narcotics enforcement and recognized these events 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 suspected drug dealer in area known for drug

activity created reasonable suspicion justifying a stop). Taking the events and

observations as a whole, an officer could 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 counsel 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 asserted a claim of ineffective 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 claim, failing to call defense witnesses, as
3

The jury did not find that Coleman possessed the Taurus .40 caliber handgun,

located in the backseat, in furtherance of drug trafficking.

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moot but without prejudice. On appeal, Coleman now argues he was denied his right

to effective assistance of counsel under the 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 determined that we will not reach 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, the then-existing 8th Circuit Model Jury

Instruction for Possession of a Firearm in furtherance of a Drug Trafficking Offense

under 18 U.S.C. § 924(c). The jury returned a verdict finding Coleman guilty of

possession of the Ruger 9 mm handgun, located in the glove compartment, in

furtherance of drug trafficking.3

 On appeal, Coleman asserts that he was denied his

Fifth Amendment due process rights when the trial court, without objection by trial

counsel, failed to properly instruct the jury on this count.

Where the defendant did not object to the 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 that the instruction was “error” that was

“plain” based upon an 8th Circuit decision, nine months after the trial, finding a nearly
5

In Kent, the Court reasoned that the instruction defined “in furtherance of” in

nearly identical terms as the 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 convict the defendant on the lesser activity of

possessing the firearm “in relation to” the drug offense. Kent, 531 F.3d at 654.

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identical instruction erroneous. See United 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 affected 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 prejudicial, which requires showing “a reasonable

probability that, but for [the error claimed], the result of the proceeding would have

been different.”) “To convict a defendant of possessing a firearm 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 unpersuasive in downplaying the nexus between

his possession of the firearm and the drug offense. 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 discovered 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 along 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 firearm to the drugs and Coleman himself
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supports the jury’s conviction on this count and undermines Coleman’s claim that the

jury instruction affected his substantial rights.

Coleman’s attempt to analogize the facts of his case to Rush-Richardson is

unpersuasive. See Rush-Richardson 574 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 defendant, 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 defendant claimed he was not aware of the

guns’ presence. Id. In contrast, in this case, the gun was stored with the narcotics,

accessible to Coleman if necessary to protect the narcotics, any 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 proceeding. 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[ing] 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 respects, but with one exception. I believe

the erroneous jury instruction on the charge of possessing a firearm in furtherance of
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a drug crime requires a new trial. I therefore 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 established 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 proximity 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 fact that there was sufficient evidence for the

jury to convict him is irrelevant; the analysis conducted by the Court is entirely

unhelpful, and threatens to add to the confusion in future cases when 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, Coleman 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, Coleman 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 government's own witness supports Coleman's

assertion.

The government called Eugene Brewer, one of the occupants in the Grand Prix

vehicle stopped and searched by the officers, as a witness. Brewer was sitting in the
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back seat of the vehicle, on the passenger side. Coleman was sitting in the front

passenger seat. Brewer testified to the events which occurred in the vehicle prior to

the traffic stop. Brewer told the jury when he entered the car, Coleman directed his

attention to the map pocket on the back side of Coleman's seat and told him he had

"tools" for sale. "Tools" is a Chicago street 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 direct evidence introduced by the government

indicating Coleman was selling both firearms found in the car, rather than possessing

either one of them in furtherance of a drug crime. Armed with this 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 inference – 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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