FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v.

ANTHONY MARCOS CHADWELL,

Defendant-Appellant.

No. 14-30028

D.C. No.

1:13-cr-00014-

DWM-1

OPINION

Appeal from the United States District Court

for the District of Montana

Donald W. Molloy, Senior District Judge, Presiding

Argued and Submitted

July 8, 2015—Portland, Oregon

Filed August 19, 2015

Before: N. Randy Smith and John B. Owens, Circuit

Judges, and William Q. Hayes,* District Judge.

Opinion by Judge Hayes

* The Honorable William Q. Hayes, District Judge for the U.S. District

Court for the Southern District of California, sitting by designation.
2 UNITED STATES V. CHADWELL

SUMMARY**

Criminal Law

The panel affirmed a jury conviction and sentence for

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

The panel held that the district court did not abuse its

discretion or violate defendant’s right to be present at all

stages of the trial under Fed. R. Crim. P. 43(a) when it

permitted the jury to view a properly admitted video exhibit

in the jury room during deliberations.

The panel also held that the district court did not err in

applying a four-level sentencing enhancement under U.S.S.G.

§ 2K2.1(b)(6)(B) for using or possessing any firearm in

connection with another felony offense.

COUNSEL

Cammi J. Woodward (argued), Woodward Law Firm, PLLC,

Billings, Montana, for Defendant-Appellant.

John D. Sullivan (argued), Assistant United States Attorney,

and Michael W. Cotter, United States Attorney, Billings,

Montana, for Plaintiff-Appellee.

** This summary constitutes no part of the opinion of the court. It has

been prepared by court staff for the convenience of the reader.
UNITED STATES V. CHADWELL 3

OPINION

HAYES, District Judge:

Appellant Anthony Marcos Chadwell appeals his jury

conviction and sentence for being in possession of firearms

while subject to a court order in violation of 18 U.S.C.

§ 922(g)(8). Chadwell contends that the district court

(a) abused its discretion and violated his right to be present at

all stages of the trial when it permitted the jury to review a

properly admitted video exhibit in the jury room during

deliberations, and (b) erred in applying the four-level

enhancement under U.S. Sentencing Guidelines Manual

(“U.S.S.G.”) § 2K2.1(b)(6)(B) for using or possessing any

firearm in connection with another felony offense to calculate

his advisory guideline range. We have jurisdiction under

28 U.S.C. § 1291, and we affirm.

FACTS AND PROCEDURAL HISTORY

A. Offense Conduct

On August 26, 2012, Billings Police Department Officer

James Ward pulled over a vehicle driven by Chadwell. The

video recording system in Officer Ward’s patrol vehicle

activated when he turned on his top lights for the traffic stop. 

Chadwell immediately informed Officer Ward that he was a

habitual traffic offender. Officer Ward verified the

information with dispatch and informed Chadwell he would

be placed under arrest as a habitual traffic offender. 

Chadwell exited the vehicle and immediately closed the door. 

Officer Ward placed Chadwell in handcuffs. When Officer

Ward asked Chadwell if he would find anything in the

vehicle, Chadwell became agitated. Chadwell started to yell
4 UNITED STATES V. CHADWELL

at the passenger, Brandon Robinson, to get out of the vehicle. 

Robinson exited the vehicle, locked the doors, and sat on the

trunk. Officer Ward asked Chadwell whether he had proof of

insurance in the glove box. Chadwell responded, “No, you’re

not getting in there. So just give me a no-insurance.”

After Chadwell was taken to jail, officers searched the

vehicle. Officer Ward found a bottle that contained two

plastic sandwich baggies of cocaine on the driver’s side

floorboard, a loaded .25 caliber semiautomatic pistol with a

round in the chamber between the center seats in the front of

the vehicle, and an unloaded .22 caliber semiautomatic pistol

in the glove box. All of these events were video recorded.

Chadwell was charged in an indictment with being in

possession of firearms and ammunition while subject to a

court order in violation of 18 U.S.C. § 922(g)(8).

B. Trial Proceedings

At the pretrial conference, Chadwell stipulated to the

admission of the two firearms and the ammunition found in

the vehicle, a nineteen-minute portion of the video recorded

from Officer Ward’s vehicle,1and the certified order of

protection prohibiting Chadwell from possessing a firearm.

At trial, the district court permitted the government to

publish the nineteen-minute video exhibit to the jury during

the testimony of Officer Ward. The government rested on the

first day of trial and Chadwell did not present any evidence. 

1 The entire video lasted approximately an hour. The shortened video

exhibit, admitted by stipulation of the parties, did not include the search

of the vehicle or the discovery of the cocaine and guns.
UNITED STATES V. CHADWELL 5

The court submitted the case to the jury for deliberations at

approximately 3:45 p.m.

Shortly before 5:00 p.m., the court reconvened in the

courtroom outside the presence of the jury with all counsel

and Chadwell present. The district court informed the parties

that the jury had sent out a question stating, “How do we

watch the DVD?” The district court confirmed with the

parties that the nineteen-minute video exhibit had been played

in full in open court and that the video exhibit was in the jury

room.

The jury was excused for the evening and returned the

next morning. When court reconvened, the district court

informed the parties that a television with a built-in video

player was set up in the jury room. Defense counsel objected

on the grounds that the trial was short and the procedure

unduly emphasized one piece of the evidence. The court

overruled the defense objection. The court reconvened with

the jury present. The court informed the jury that a television

with a built-in video player was available in the jury room to

play the video. The court cautioned the jury to give full

consideration to all of the testimony and not to focus on any

one particular piece of evidence. The jury returned to the jury

room to deliberate, and subsequently returned a verdict of

guilty.

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 with another felony,

which was recommended in the presentence report. At the

sentencing hearing, the government presented the testimony
6 UNITED STATES V. CHADWELL

of Officer Ward and Detective Kenneth Tuss. Officer Ward

testified regarding the location of the drugs and the guns in

the vehicle that Chadwell was driving at the time of the traffic

stop. Detective Tuss testified regarding a controlled sale of

cocaine between a confidential informant and Chadwell on

August 15, 2012, eleven days prior to the offense conduct. 

Detective Tuss testified that Chadwell and Robinson sold

cocaine to a confidential informant in an alley after meeting

up at the house of Robinson’s grandmother.

After hearing the evidence and the arguments of counsel,

the district court found the government had proven by more

than a preponderance of evidence that Chadwell had the gun

in his possession in connection with a specifically

contemplated felony—the distribution, sale, or use of

cocaine—and that Chadwell formed a firm intent to have the

gun for protection or to embolden himself or others in either

taking or not paying for the cocaine. The district court relied

specifically upon evidence of the August 15 controlled buy of

cocaine, Chadwell’s obstreperous behavior at the traffic stop,

and the close proximity of the firearm and the drugs in the

vehicle. The district court found: “[T]he facts very clearly

establish . . . that Mr. Robinson and Mr. Chadwell were [i]n

the business of selling drugs, and that the firearms were there

in connection with the drugs.” The district court concluded

that the four-level enhancement under U.S.S.G.

§ 2K2.1(b)(6)(B) for the use or possession of a firearm in

connection with another felony applied in this case, and

sentenced Chadwell to 48 months of incarceration followed

by three years of supervised release.
UNITED STATES V. CHADWELL 7

STANDARD OF REVIEW

We review for abuse of discretion the district court’s

decision to allow the jury to take exhibits into the jury room. 

See United States v. Abonce-Barrera, 257 F.3d 959, 963 (9th

Cir. 2001); see also United States v. DeCoito, 764 F.2d 690,

695 (9th Cir. 1985).

“We review ‘the district court’s interpretation of the

Sentencing Guidelines de novo, the district court’s

application of the Sentencing Guidelines to the facts of [the]

case for abuse of discretion, and the district court’s factual

findings for clear error.’” United States v. Rosas, 615 F.3d

1058, 1066 (9th Cir. 2010) (alteration in original) (quoting

United States v. Kimbrew, 406 F.3d 1149, 1151 (9th Cir.

2005)).

ANALYSIS

A. Permitting the Jury to Review the Video in the

Jury Room

Chadwell argues that permitting the jury to review the

video exhibit alone in the jury room (a) was an abuse of the

district court’s discretion and (b) violated his right to be

present at all stages of trial under Federal Rule of Criminal

Procedure 43(a). We hold that the district court did not abuse

its discretion in sending the video exhibit to the jury room for

replay and that a defendant’s right to be present at all stages

of the trial under Federal Rule of Criminal Procedure 43(a)

does not extend to a jury’s private review of evidence in the

jury room.
8 UNITED STATES V. CHADWELL

1. Sending Exhibits to the Jury Room

The decision to send properly admitted exhibits to the

jury room during deliberations is within the discretion of the

trial court. DeCoito, 764 F.2d at 695. Jurors generally may

examine all or part of any exhibit received into evidence and

determine the weight to give that evidence during

deliberations in the privacy of the jury room. Id. In this case,

the district court had discretion to send the video recording to

the jury room during deliberations and to provide the jury

with the technology to view this properly admitted video

exhibit in the privacy of the jury room. The district court did

not abuse its discretion by allowing the jury to examine the

video exhibit during deliberations in the same private manner

that the jury is entitled to view paper exhibits, photographs,

and physical exhibits. See United States v. Cuozzo, 962 F.2d

945, 953 (9th Cir. 1992) (holding that properly admitted

“audio tapes” can be “made available to [the] jury for review

like all other evidentiary exhibits”).2

2 Other circuits allow tape players to go into the jury room to replay

properly admitted evidence. See, e.g., United States v. MonserrateValentin, 729 F.3d 31, 59 (1st Cir. 2013) (“We fail to see how . . .

recordings are any different from the other types of documentary evidence

that are routinely reviewed by jurors during their deliberations.”); United

States v. Plato, 629 F.3d 646, 652 (7th Cir. 2010) (“We have previously

approved of a district court’s decision to send tape recordings and a tape

player into the jury room during deliberations . . . .”); United States v.

Rose, 522 F.3d 710, 715 (6th Cir. 2008) (“As we have said in response to

objections to the presence of tape players in the jury room, an audio

exhibit should not be relegated to muteness because it can be perused only

through the use of a tape player.” (internal quotation marks omitted));

United States v. Sobamowo, 892 F.2d 90, 97 (D.C. Cir. 1989) (R.B.

Ginsburg, J.) (“Contrary to defendants’ contentions, the tape replaying

was not a stage of trial implicating the confrontation clause or Rule

43(a).”); United States v. Zepeda-Santana, 569 F.2d 1386, 1391 (5th Cir.
UNITED STATES V. CHADWELL 9

As the district court in this case correctly concluded,

permitting a jury to view properly admitted exhibits is “quite

different” from permitting the jury to hear a readback of

actual trial testimony. Trial testimony may be read back to a

jury at the district court’s discretion, but only where the

“particular facts and circumstances of [a] case” favor a

readback and sufficient protections are in place to avoid

undue emphasis on any portion of the testimony. United

States v. Hernandez, 27 F.3d 1403, 1408 (9th Cir. 1994). 

Compare id. at 1408–09 (holding that the district court

abused its discretion in permitting the jury to take a transcript

into the jury room during deliberations when the court knew

the jury intended to focus its verdict on a specific portion of

a transcript and did not instruct the jury not to emphasize that

transcript or otherwise provide protective instructions), with

United States v. Lujan, 936 F.2d 406, 411–12 (9th Cir. 1991)

(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 during deliberations when the

district court took multiple precautions to avoid undue

emphasis on the transcript).

We stated our concerns about permitting trial testimony

readback during jury deliberations in United States v. Sacco,

869 F.2d 499, 502 (9th Cir. 1989): “[I]n the privacy of the

1978) (“It is within the trial court’s discretion to decide whether

evidentiary exhibits [taped conversations] should accompany the jury into

the jury room.”); United States v. Williams, 241 F. App’x 681, 684 (11th

Cir. 2007) (“A tape recording is just another piece of real evidence.”

(internal quotation marks omitted)); United States v. Graulich, 35 F.3d

574, at *8 (10thCir. 1994) (unpublished table decision) (“We hold that the

tapes were properly admitted in evidence and that the district court did not

abuse its discretion in thereafter allowing the tapes to go to the jury room

during deliberations.”).
10 UNITED STATES V. CHADWELL

jury room, a jury, unsupervised by the judge, might

repeatedly replay crucial moments of testimony before

reaching a guilty verdict.” In this case, the video was a

properly admitted exhibit which was sent to the jury room

along with the other exhibits in the case—not trial testimony. 

See Cuozzo, 962 F.2d at 953 (“The government’s audio tapes

were not testimony . . . .”). The concern for avoiding undue

emphasis on particular trial testimony did not limit the

discretion of the district court to send the video exhibit to the

jury room “for review like all other evidentiary exhibits.” Id.

2. Federal Rule of Criminal Procedure 43(a)

Our case law concerning the defendant’s right under

Federal Rule of Criminal Procedure 43(a)(2) to be personally

present at “every trial stage” is also inapposite. We have

consistently held that the replay of audio exhibits for the jury

during deliberations in the courtroom with outsiders present

is properly viewed as a stage of the trial at which the presence

of the defendant is required. See United States v. FelixRodriguez, 22 F.3d 964, 966–67 (9th Cir. 1994) (holding that

the replay of taped conversations in the courtroom with the

judge, his law clerk, the court clerk, and the court reporter

present, but not the defendant, violated Rule 43(a)(2)); United

States v. Brown, 832 F.2d 128, 129–30 (9th Cir. 1987)

(holding that the replay of court reporter’s tape recording of

a prior proceeding in the courtroom with the case agent and

the court clerk present, but not the defendant, violated Rule

43(a)(2)); United States v. Kupau, 781 F.2d 740, 743 (9th Cir.

1986) (holding that the replay of taped conversations in the

courtroom with an FBI agent present, but not the defendant,

violated Rule 43(a)(2)).
UNITED STATES V. CHADWELL 11

In each of these cases, we concluded that the procedure

used by the district court violated the defendant’s rights under

Rule 43(a) because outsiders were present. In Kupau, we

expressed “serious concerns about . . . a risk that someone

associated with the prosecution, while alone with the jury

after submission, could, in some fashion, influence its

deliberations.” 781 F.2d at 742; see also Brown, 832 F.2d at

130 (“Any number of prejudicial events might have taken

place when the case agent replayed the tape for the jury. . . . 

Such contact could be very subtle, such as a nod at a

significant portion of the tape. It might have been

unintended, or even unnoticed by the case agent himself.”);

Felix-Rodriguez, 22 F.3d at 967–68 (holding that error was

harmless because the “jurors were not exposed to extraneous

matters”). In this case, the district court provided the jury

with the technology to view the video exhibit in the privacy

of the jury room with no outsiders present. Unlike the cases

cited above, this procedure raised no concern that the

deliberations would be tainted by outside influences.

Chadwell’s reliance on United States v. Noushfar, 78 F.3d

1442 (9th Cir. 1996), amended by 140 F.3d 1244 (9th Cir.

1998), is similarly unavailing. InNoushfar, we held that Rule

43(a) was violated when the district court allowed the jury to

listen in the privacy of the jury room to audio tapes that had

never been presented in open court. Unlike the audio tapes in

Noushfar, the video exhibit in this case was played in its

entirety in open court, and “presented and tested in front of

the jury, judge and defendant.” Id.

The district court thus did not abuse its discretion when it

sent the properly admitted video exhibit into the jury room or

when it provided the jury with the technology to view the

video exhibit during deliberations in the privacy of the jury
12 UNITED STATES V. CHADWELL

room. Nor did the procedure used by the district court violate

Chadwell’s right to be present at every stage of the trial under

Rule 43(a).

B. Application of U.S.S.G. § 2K2.1(b)(6)(B)

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

defendant . . . used or possessed any firearm or ammunition

in connection with another felony offense; or possessed or

transferred any firearm or ammunition with knowledge,

intent, or reason to believe that it would be used or possessed

in connection with another felony offense, increase by 4

levels.”3 The relevant application note states that

“[s]ubsection (b)(6)(B) . . . appl[ies] . . . in the case of a drug

trafficking offense in which a firearm is found in close

proximity to drugs . . . . In these cases, application of

subsection[] (b)(6)(B) . . . is warranted because the presence

of the firearm has the potential of facilitating another felony

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

government bears the burden of producing sufficient evidence

that the defendant intended to use or 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 case are materially indistinguishable

from those of United States v. Polanco, 93 F.3d 555 (9th Cir.

1996). In Polanco, the defendant “was observed selling

3

“‘Another felony offense,’ for purposes ofsubsection (b)(6)(B), means

any federal, state, or local offense, other than the explosive or firearms

possession or trafficking offense, punishable by imprisonment for a term

exceeding one year, regardless of whether a criminal charge was brought,

or a conviction obtained.” U.S. Sentencing Guidelines Manual § 2K2.1

cmt. n.14(C).
UNITED STATES V. CHADWELL 13

marijuana at the intersection of Pico Boulevard and Hoover

Street, not far from his car, which was parked at the corner of

that intersection. During the time he was selling marijuana,

[he] occasionally returned to his parked car.” Id. at 567. 

Following his arrest, the defendant’s gun was found “loaded

with ammunition and wedged between the driver’s seat and

the console of his car.” Id. Observing that “[t]he presence of

the gun in [the defendant’s] car potentially emboldened him

to undertake his illicit drug sales,” this court held that the

government had “adduced sufficient evidence to prove by a

preponderance of evidence” that an enhancement under

U.S.S.G. § 2K2.1(b)(6)(B) was warranted. Id.

In this case, a gun was also found near the console of the

defendant’s car and there was evidence the defendant was

selling drugs out of his car—baggies of drugs were found

inches away from the gun. The district court also cited

several other pieces of evidence establishing that the two

guns found in Chadwell’s car “emboldened him to undertake

his illicit drug sales”: (1) the August 15 controlled buy of

cocaine involving Chadwell and Robinson, which supported

the conclusion that Chadwell and Robinson worked closely

together in the distribution of drugs; (2) the fact that

Chadwell was under a restraining order for threats of

violence; and (3) the fact that Chadwell made every effort to

keep the police from getting into the vehicle or searching the

vehicle during the traffic stop that led to the offense of

conviction.

Taking all of this evidence into consideration, there was

ample support in the record for the district court’s conclusion. 

The district court did not abuse its discretion when it applied

the four-level enhancement under U.S.S.G § 2K2.1(b)(6)(B).
14 UNITED STATES V. CHADWELL

CONCLUSION

The district court was within its discretion to send the

properly admitted video evidence into the jury room and to

provide the jury with the technology to view the video

evidence during deliberations in the privacy of the jury room. 

The procedure used by the district court did not violate

Chadwell’s right to be present at every stage of the trial under

Rule 43(a). The district court did not abuse its discretion

when it applied the four-level enhancement under U.S.S.G.

§ 2K2.1(b)(6)(B).

AFFIRMED.