F OR P UBLICATION



### UNIT E D ST AT E S CO URT O F APPE AL S FO R T H E NINT H CIRCUIT

U N I T E D S T A T E S O F A M E R I C A , Plaintiff-Appellee

,

v

.

A N T H O N Y M A R C O S C H A D W

E L L , Defendant-Appellant

. N o. 14-30028

D.C. No. 1:13-cr-00014- DW M-1

OPI NI ON

A ppeal from the United States District Court for the District of Montana Donald W . Molloy , Senior District J udg e , Presiding

Arg ued and Submitted J uly 8, 2015—Portland, Oreg on

F iled Aug ust 19, 2015

B e fore: N. Randy

Smith and J o hn B . Owens, Circuit J udg es, and W illiam Q. Hay es, * District J udg e.

Opinion by

J udg e Hay es

* T h e Ho n orab le W illiam Q. H ay es, District J u d g e f o r th e U.S. District Co u rt f o r th e So u th ern District o f Calif o rn ia, sittin g b y

d esig n atio n

.U N I T E D S T A T E S V

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A D W E L L 2

SUMMARY * *

Crim inal Law

T h e p a nel affirmed a jury conviction a nd sentence f

o r being in possession of firearms while subject to a court order.

The panel held t h at the district court did not a buse its discretion or v iolate defendant’s rig h t t o b e present at all stag es of the trial un d e r Fe d

. R. Crim. P. 43(a) when it permitted the jury to view a properly admitted video ex hibit in the jury

room during deliberations.

The panel also held that the district court did no t e r r in

a p p l y i n g a f our-level sentencing enhancement under U.S.S.G

. § 2 K2.1(b)(6)(B ) for using or possessin g any firearm in connection with another felony offense.

COUNSEL

Cammi J

. W oodward (arg ued), W o odward L aw F irm, PL L C, B illing s, Montana, for Defendant-Appellant.

J ohn D. Sullivan (arg

ued), Assistant United States Attorney
, and Michael W. Cotter, U n ited States Attorney
, B illing s, Montana, for Plaintiff-Appellee.

** T h is su m m ary co n stitu

t es n o p ar t o f t h e o p in io n o f th e co u rt. It h as b een p rep ared b y

co u rt staf

f f o r th e co n v en i en ce o f

th e read er.U N I T E D S T A T E S V

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A D W E L L 3

OP INION

HAYES, District J udg e:

Appellant Anthony Marcos Ch adwell a ppeals his jury conviction and sentenc e for being in possession o f f irearms whi le subject to a court order in violation of 18 U .S.C. § 922(g ) (8). Chadwell contends that the d i s trict court (a) abused its discretion a

nd v iolated his rig ht to b e present at all stag es of the tr i a l when it p ermitted the jury to r e view a pr operly admitted video ex hibit in the jury room during deliber ations, and (b) erred in a pply ing the four-level enhancement under U.S. Sentencing Guidelines Ma n u al (“U.S.S.G.”) § 2K2.1(b)(6)(B ) f or u sing or possessing any firearm in connection with another felony offense to calculate his advisory g uideline rang e. We h a v e jurisdiction under 28 U.S.C. § 1291, and we affirm.

F ACTS AND P ROCEDURAL HISTORY

A. Of f ense Conduct

On Aug ust 26, 2012, B illing s Police Department Officer J ames W ard pulled over a vehicle driven by Chadwell. The video r ecording s y s t e m in Officer Ward’s p atrol vehicle activated when he turned on his top lig hts for the traffic stop. Chadwell immediately

informed Officer W ard that he was a habitual traffic offender. Officer W ard v erified the information with dispatch and informed Chadwell h e would be placed under arrest as a habitual traffic offender. Chadwell ex ited the vehicle and immediately closed the door. Officer W ard placed Ch adwell in handcuffs. W hen Officer W a r d aske d C h a dwell if he would find a ny thing in the vehicle, Chadwell became ag itated. Chadwell started to y ellU N I T E D S T A T E S V

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A D W E L L 4

at the passeng er, B r andon Robinson, to g et out of the vehicle. Robinson e x ited the vehicle, locked the doors, and sat on the trunk. Officer W ard a sked Chadwell whether he had proof o f insurance in the g love box

. Chadwell responded, “No, y ou’re not g etting in there. So just g ive me a no-insurance.”

After Chadwell was taken to jail, off icers searched the vehicl e. O f

ficer W a rd found a b ottle that contained two plastic s a n dwich bag g ies of c o caine on the driver’s side floorboard, a loaded .25 caliber s e miautomatic pistol with a round in the chamber between the center seats in the front o f the v ehicle, and an unloaded .22 c a liber semiautomatic p istol in the g love box . All of these events were video recorded.

Chadwell was charg ed i n an indictment w ith being in possession of firearms and amm u n i t i on while subject to a court order in violation of 18 U.S.C. § 922(g )(8).

B. Trial P roceedings

At the p r e t r ial conference, Chadwell stipulated to the admission of the two firearms and the amm u n ition found in the vehicle, a n ineteen-minute portion of the video recorded from Officer W ard’s vehicle, 1 an d t h e certified order o f protection prohibiting Chadwell from possessing a firearm.

At tria l

, the district court permitted the g overnment to pu b l i s h the n ineteen-minute video ex h ibit to the jury during the testimony of Officer W a rd. The g overnment r ested on the first day of trial and Chadwell did no t p r esent any evidence.

1 T h e en tire v i d eo lasted ap pro x im ately an h ou r. T h e s h o rten ed v i deo

ex h ib it, ad m itted b y stip u latio n o f t h e p arties, d id n o t in clu d e th e search

o f th e v eh icle o r th e d i sco v ery o f th e co cain e an d g u n s.U N I T E D S T A T E S V

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A D W E L L 5

The court submitted the case to the jury for deliberations at approx imately

3:45 p.m.

Shortly before 5:00 p.m., the court reconvened in the
courtroom o utside the presence of the jury with all counsel and Chadwell p resent. The district court informed the parties that the jury had sent out a question stating

, “How do we watch the DVD? ” The dis t r i c t court confirmed with the parties that the nineteen-min u t e video ex h ibit had been play ed in full in open court and that the video ex hibit was in the jury

room.

T h e jury was ex cused for the evening and returned the

nex t morning

. When cour t reconvened, the district court informed the parties that a television with a built-in video play er was set up in the jury r oom. D efense counsel objected

on the g rounds that the trial was sh o rt and the procedure unduly emphasiz ed one piece o f the e v i d e nce. The court overruled the defense objection. The court reconvened with the jury p resent. The court informed the jury that a television with a built-in video play er was a vailable in the jury r oom to play the video. The court cautioned t h e jury to g ive full consideration to all of the testimony and not to focus on any

one particular piece o f evidence. The jury returned to the jury

room to deliberate, and subsequen t l y r eturned a verdict o f
g uilty

.

C. Sentencing

Chadwell objected to the application of the four-level enhancement under U.S.S.G § 2K2.1(b)(6)(B ) for the use or possession of a firearm in connection w ith another felony

, which was recommended in t h e presentence report. At the sentencing hearing

, the g overnment presented the testimonyU N I T E D S T A T E S V

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A D W E L L 6

of Officer W ard and D etective Kenneth Tuss. Officer W ard testified reg arding the location of the drug s and t h e gu n s in the vehicle that Chadwell w as driving at the time of the traffic stop. Detec t i v e Tuss testified reg a rding a controlled sale o f

c o caine between a confidential informant and Chadwell o n Aug ust 1 5, 2012, e leven day s prior to the offense co n d u c t

. Det e c t i v e Tuss testified that Chadwell and Robinson sold cocaine t o a confidential informant in an alley after meeting up at the house of Robinson’s g randmother.

After hearing the evidence and the arg uments o f counsel, the district court found the g overnment had pr o v e n b y more than a p reponderance of evidence that Chadwell had the g un in his po ssession in c onnection with a specifically contemplated felon y

—the distribution, sale, or use o f cocaine—and that Chadwell formed a firm intent to have the
g un for protection or to embolden himself or others in either taking or not pay ing for the cocaine. The district court relied specifically upon evidence of the Aug ust 15 controlled buy o f cocaine, Chadwell’s obstreperous behavior at the traffic stop, and the close p rox imity of the firea r m an d t h e drug s in the vehicle. The d istrict court foun d : “ [ T] he facts very clearly establish . . . that Mr. Robinson a n d Mr. Chadwell were [ i] n the business of selling drug s, and that the firearms were there in connection w it h the drug s.” T h e district court concluded
t h a t t h e f

o u r

- l e v e l e n h a n c e m e n t u n d e r U

. S

. S

. G

. § 2K2.1(b)(6)(B ) for the u se or p o s s e s s ion of a firearm in connection with another felony applied in this c ase, a nd sentenced Chadwell to 48 months of incarceration f o llowed by three y ears of supervised release.U N I T E D S T A T E S V

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A D W E L L 7

STANDARD OF REVIEW

W e review for a

buse of d iscretion the distr i c t c o urt’s decision to allow the jury to take ex hibits into the jury room. See United States v. Abonce-Barrera

, 257 F .3d 959, 9 63 (9th Cir. 2001); see also United States v. DeCoito
, 764 F .2d 690, 695 (9th Cir. 1985).

“W e review ‘the district court’s interpretation of the Sentencing Guidelines de novo, the district court’s application of the Sentencing Guidelines to the f acts of [ the]

ca s e for abuse of discretion, and the district court’s f actual finding s for clear error.’” United S t a tes v. Rosas
, 6 15 F .3d 1058, 1 066 (9 t h Cir. 2010) (alteration in orig inal) (quoting United States v. Kimbr e w , 4 0 6 F .3d 1149, 1151 (9th Cir. 2005)).

ANALYSIS

A. Perm itting the Jury to Review the Video in t h e Jury Room

Chadwell arg ues that p ermitting the jury to review the video ex hibit alone in t h e j u ry room (a) was an abuse of the district court’s d i s c r e tion and (b) violated his rig h t to be present at a ll stag es of trial under F ederal Rule of Criminal Procedure 43(a). W e hold that the d istrict court did not abuse its discretion in sending the video ex h ibit to the jury r oom for replay and that a defendant ’ s rig ht to be present at a ll stag e s of the tr i a l u nder F ederal Rule of Criminal Procedure 43(a) does not ex tend to a jury ’s private review of evidence in the jury room.U N I T E D S T A T E S V

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A D W E L L 8

1. Sending Exhibits to the Jury Room

The decision to send properly a dmitted ex hi b its to the jury r oom during deliberations is within the discretion of the trial court. DeCoito
, 764 F

. 2 d at 695. J urors g enerally may

ex a mine all or part of any ex h ibit received into evidence a nd determine the weig h t to g ive that evidence during deliberations in the privacy of the jury room. Id. I n this c ase, the district court had d iscretion to send the video recording to the jury room during deliberations and to provid e the jury with the technolog y to view this p roperly admitted video

ex h ibit in the privacy of the jury room. T he district court did
not abuse its dis cretion by allowing the jury to ex amine the video ex hibit during d eliberations in the same private manner that the jury is entitled to view pap e r e x hibits, photog raphs, and phy sical e x hibits. See United States v. Cuozzo
, 962 F .2d 945, 953 ( 9th Cir. 1992) (holding t hat properly admitted “audio tapes” can be “made available to [ the] jury for r eview like all other evidentiary ex hibits”). 2

2 O t h er circu i ts allo w tap e p lay ers t o g o in to th e j u ry ro o m to rep lay
p ro p erly ad m itted ev id en ce. S ee, e.g

. , Un ited S ta tes v. Mo n serra teVa len t in
, 72 9 F.3 d 3 1
, 5 9 (1 st Ci r

. 2 0 1 3 ) (“ W e f ail to see h o w

. . . reco rd in g s are an y d if

f eren t f ro m th e o th er ty

p es o f d o cu m en tary ev id en ce th at are ro u

t in ely rev iew ed b y j u ro rs d u rin g th eir d elib eratio n s.”); Un ited S ta tes v. Pla t o , 6 2 9 F.3 d 6 4 6 , 6 5 2 (7 th Cir. 2 0 1 0) (“ W e h av e p rev io u sly
ap p ro v ed o f a d istrict co u rt’ s decisio n to sen d tap e reco rd i n g s an d a tap e p lay er in t o th e j u ry ro o m d u rin g d elib eratio n s

. . . .”); Un ited Sta tes v. Ro se , 5 2 2 F .3 d 7 1 0
, 7 1 5 (6 th Cir. 2 0 0 8 ) (“ A s w e h av e said in resp o n se to

o b j ectio n s to th e p resen ce o f t ap e p lay ers in th e j u ry ro o m , an au dio

ex h ib it s h o u l d n ot b e releg ated to m u ten ess b ecau se it can b e peru sed o n ly th ro u g h th e u se o f a tap e p lay er.” (in tern al q u otatio n m ark s om itted )); Un ited S ta t es v. S

o b amo wo , 8 92 F.2 d 9 0
, 9 7 (D.C. Ci r

. 1 9 8 9 ) (R.B

. Gin sb u rg , J .) (“ Co n trary to d ef en d an ts’ co n ten tio n s, th e tap e re play in g

w as n o t a stag e o f t r i al im p licatin g th e co n f

ro n tatio n clau se o r Ru le 4 3 (a).”); Un ited S ta tes v. Zep ed a -S a nta n a , 5 6 9 F .2 d 1 3 8 6
, 1 39 1 (5 th Cir.U N I T E D S T A T E S V

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A D W E L L 9

As the d istrict court in this case correctly concluded, permitting a jury to view properly admitted ex hibits is “quite different” from permit ting the jury to hear a readback o f actual trial testimony

. T r ial testimony may be read back to a jury at the district cour t’s d iscretion, but only where the

“ p a r ticular facts and c ircumstances of [ a] case” favor a readback and sufficient p ro t e c t i o ns are in place to avoid undue emphasis on any portion o f the testimony

. United States v. Hernandez

, 2 7 F .3d 1403, 1408 (9th Cir. 1994). Compare id. at 1408–09 (holding that the district co u rt abused its discretion in permitting the jury to take a transcript into the jury room during deliberations when the c ourt knew the jury intended to focus its verdict on a specific portion of

a transcript and did not instruct the jury not to emphasiz e that transcript or otherwise provide protective instructions), with United States v. Lujan
, 936 F .2d 406, 411–12 (9th Cir. 1 991) (per curiam) ( holding that the district court did not abuse its discretion by permitting the jury to take a copy of trial transcript into the jury room d uring delib e r at i ons w h en the district court took multiple precautions to avo i d undue emphasis on the transcript).

W e stat e d our concerns about permitting trial testimony readback during jury deliberations in United States v. Sacco
, 869 F .2d 499, 502 (9th C i r. 1989): “[ I ] n the privacy o f the

1 9 7 8 ) (“ It i s w ith in th e trial c o u rt’ s d iscretio n t o d ecid e w h eth er

ev id en tiary ex h ib i ts [tap ed co n v ersatio n s] sh o u ld acco m

p an y th e j u ry in to th e j u ry ro o m .”); Un ited Sta tes v. W i llia ms , 2 4 1 F. A

pp ’ x 6 81
, 6 8 4 (1 1 th Cir. 2 0 0 7 ) (“ A tap e reco rd in g is j u st an o th er piece o f r e a l e v id en ce.” (in t ern al q u o ta t i o n m ark s om itted )); Un ited S ta tes v. G ra u lich

, 3 5 F.3 d 5 7 4
, at * 8 (1 0 th C ir. 1 9 9 4 ) (u n pu b lish ed t ab le d ecisio n ) (“ W e h o ld th at th e tap es w ere p ro p erly ad m itted in ev id en ce an d th at th e d istrict co u rt d i d n o t ab u se its d iscretio n i n th ereaf ter allo w in g th e tap es to g o to t h e j u ry ro o m d u rin g d elib eratio n s.”).U N I T E D S T A T E S V

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A D W E L L 10

jury room, a jury

, unsupervised by the judg e, mig ht repeate d l y replay crucial moments of testimony before reaching a g uilty verdict.” I n this c ase, the video was a properly admitted e x hib it which was sent to the jury room along with the other ex hibits in the case—not trial testimony

. See Cuozzo
, 962 F .2d at 953 (“The g overnment’s a udio tapes

were not testimony

. . . .”). The concern for avoiding undue emphas i s on particular trial testimony did not limit the discretion of the district c ourt to send the video exhibit to the jury room “for review like a ll other evidentiary ex hibits.” Id

.

2. F ederal Rule of

Crim inal P rocedure 43(a)

Our case law concerning the defendant’s rig ht under F ederal Rule of Criminal Procedure 43(a)(2) to be personally present at “every trial stag e” is also inapposite. W e h a v e consistently held that the replay of audio ex h ibits for the jury during deliberations in the courtroom with outsiders present is properly viewed as a stag e of the trial at which the presence of the defendant is r equired. See Uni t ed States v. FelixRodriguez

, 22 F .3d 964, 966–67 (9th Cir. 1994) (holding that the replay of taped conversations i n t h e courtroom with the judg e, his law clerk, the c ourt clerk, a n d the court reporter present, but not the d efendant, violated Rule 43(a)(2)); United St a t e s v

. B rown , 832 F .2d 1 28, 129–30 (9th Cir. 1 987) ( h o l ding that the replay o f court reporter’s tape recording of

a prior p roceeding i n the courtroom with the case ag ent a nd the court clerk present, but n ot the defendant, viol a ted Rule 43(a)(2)); United States v. Kupau
, 781 F .2d 740, 743 (9th Cir. 1986) (holding that the r eplay of taped conversation s in the
courtr o om with an F B I ag e nt present, but not the defendant, violated Rule 43(a)(2)).U N I T E D S T A T E S V

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A D W E L L 11

I n each o f t h ese cases, we concluded that the procedure used by the district court violated the defendant’s rig hts under Rule 43(a) because outsiders were present. I n K u p a u , we

ex p ressed “serious concerns a b o u t

. . . a risk that someone

a s sociated with the prosecution, w hile alone with the j u r y after submission, could, in some fashion, influence its deliberations.” 781 F .2d at 742; see also Brown
, 8 32 F

. 2 d at 130 (“Any number of prejudicial events might have taken place when the case ag ent replay ed the tape for the jury

. . . . Such contact could be very s u b t l e, such as a n od at a sig nificant portion of the t a p e

. I t mig ht h ave been unin t e n d e d

, or even unnoticed by the case ag ent himself.”); Felix-Rodriguez

, 22 F .3d at 967–68 (holding t h at e rror was harmless because the “jurors were not ex posed to ex traneous matters”). I n this c a se, the distric t court provided the jury wi t h t h e t echnolog y to view the video ex hibit in the privacy of the jury room with no outsiders present. Unlike the cases cited above, this procedure raised no co n c ern that the deliberations would be tainted by outside influences.

Chadwell’s reliance on United States v. Noushfar

, 7 8 F .3d 1442 (9th Cir. 1996), amended by 140 F .3d 1244 (9th Cir. 1998), is similarly unavailing

. I n Noushfar

, we held that Rule 43(a) was violated w hen the d istrict c o urt allowed the jury to listen in the privacy o f the jury room to audio tapes that h ad

never been p resented in open court. U nlike the audio tapes in Noushfar

, the video ex hibit in t h i s c ase was play e d in its entirety in open court, and “presented and tested in fr ont o f the jury , judg e and defendant.” Id.

The district court thus did not a buse its discretion when it
sent the properly admitted video ex hibit into the jury room o r

w h e n it provided the jury with the technolog y to vie w t h e video e x hi b i t during deliberations in the privacy o f the juryU N I T E D S T A T E S V

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A D W E L L 12

room. Nor d id the procedure used by the district court violate Chadwell’s rig ht to be present at every stag e of the trial under Rule 43(a).

B. Application of

U.S.S.G

. § 2K 2.1(b)(6)(B)

U.S.S.G. § 2K2.1(b)(6)(B ) states in relevant part: “I f the defendant

. . . used or possessed any firearm or ammunition in connection with another felony offense; or pos s essed o r transferred any firearm o r a m munition with knowledg e , intent, or reason to believe that it would b e used or possessed in connection with a n other f elony offense, increase by 4 level s .” 3 The relevant application note states that “[ s] ubsection ( b)(6)(B )

. . . appl[ ies]

. . . in the case of a d rug trafficking offense in whic h a firearm is found in close
prox imity to d

rug s

. . . . I n these cases , a p p l i c ation o f subsection[ ] (b)(6)(B ) . . . is warranted because the presence of the firearm has the potential of f acilitating another felony offense

. . . .” U.S.S.G. § 2K2.1 cmt. n. 14(B )

. “The
g overnment bears the burden of producing s u f f i c i e nt evidence that the defendant intended to use o r possessed the firearm in connection with a specifically contemplated felony

. ” United States v. Noster , 590 F .3d 624, 635 (9th Cir. 2009).

The facts of this c ase are materially indisting uishable from those o f U

nited States v. P olanco

, 93 F .3d 555 (9th Cir. 1996). I n Polanco

, the d ef e n dant “was observed selling

3 “ ‘ A n o th er f

elo n y o f f en se,’ f o r p u rp o ses o f su

b sectio n (b )(6 )(B ), m ean s

an y f ed eral, s tate, o r lo cal o f

f en se, o t h e r t h a n th e ex p lo siv e or f irearm s p o ssessio n o r traf

f ick in g of f en se, p u n ish ab le by im

p riso n m en t f

o r a term

ex ceed in g o n e y ear, reg ard l ess o f w h eth er a crim in al ch arg e w as b ro u g h t,

o r a co n v ictio n ob t a in ed .” U.S. Sen t en cin g Gu id elin es Man u al § 2 K2 .1

cm t. n .1 4 (C).U N I T E D S T A T E S V

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A D W E L L 13

m a r i j u ana at the intersection of Pico B oulevard and Hoove r Street, not far from his car, which w as p arked at the corner o f that intersection. During the time he was s e l l ing marijuana, [ he] occasionally returned t o h i s p a rked car.” Id. at 567. F ollowing his arrest, the defendant’s g un was found “loaded

w i t h ammunition a

n d wedg e d between the driver’s seat a nd the c onsole of h is car.” Id. Observing that “[ t] he presence o f the g un in [ the defendant’s] car potentially e mboldened him
to undertake his illicit drug sales,” this court held that the
g overnment had “adduced suffi ci ent evidence to prove by a preponderance of evidence” that an enhancement under U.S.S.G. § 2K2.1(b)(6)(B ) was warranted. Id.

I n this case, a g un was also found near the c onsole of the defendant’s car and there w a s evidence the defendant was selling drug s out of his car—b a ggi e s of drug s were f ound inches away from the g un. The di s t r i ct court also cited several other pieces of e v idence establishing that the two g uns found in Chadwell’s car “emboldened him to undertake his illicit d

rug sales”: (1) the Aug u st 15 c ontrolled buy o f cocaine involving Chadwell and Robinson, which supported the conclusion that Chadwell and Robinson worked closely tog ether in the distribution of drug s; (2) the fact t hat Chadwell was under a r estraining o r der for thr e ats o f violence; and (3) the fact that Chadwell made every effort to keep the police from g etting into the vehicle o r searching the vehicle during the traffic stop that led to the offense o f conviction.

Taking all of this evidence into c onsideration, t h e r e was ample support in the record for the d istrict court’s conclusion. The district court did not abuse its discretion when it a pplied the four-level enhancement under U .S.S.G § 2K2.1(b)(6)(B ).U N I T E D S T A T E S V

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A D W E L L 14

CONCLUSION

The district court w as within its discretion to s e n d the properly admitted video evidence into the jury room and to provide the jury with the technolog y to view the video evidence d

uring d eliberations in the privacy of the jury room. The procedure used b y the district court did n ot violate Chadwell’s rig ht to be present at every stag e of the trial under Rule 43(a). The district court d id n o t a b use its discretion when it a pplied the four-level enhancement under U.S.S.G. § 2K2.1(b)(6)(B )

.

AF F IRMED.