FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA, 

No. 08-30050 Plaintiff-Appellee,

D.C. No.

v.  CR-06-00091-LRS

ROBERT LEWIS NORWOOD,

OPINION Defendant-Appellant. 

On Remand From The United States Supreme Court

Filed February 17, 2010

Before: Thomas M. Reavley* Richard C. Tallman, and

Milan D. Smith, Jr., Circuit Judges.

Opinion by Judge Milan D. Smith, Jr.

*The Honorable Thomas M. Reavley, Senior United States Circuit

Judge for the Fifth Circuit, sitting by designation. 

2501
COUNSEL

Robert J. Pfister and Andrew B. Brettler, Simpson Thacher &

Bartlett LLP, Los Angeles, California, for the defendantappellant.

James A. McDevitt and K. Jill Bolton, United States Attorney, Spokane, Washington, for the plaintiff-appellee. 

OPINION

MILAN D. SMITH, JR., Circuit Judge: 

In this appeal, Defendant-Appellant Robert L. Norwood

challenges his jury conviction for possession of cocaine base

with intent to distribute in violation of 21 U.S.C. § 841(a)(1)

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

claims violation of his Sixth Amendment right to confront his

accuser and violation of his due process rights both in trial

and at sentencing. Norwood also claims that the evidence was

insufficient to convict him for possession of a firearm in furtherance of a drug trafficking crime. 

We affirmed Norwood’s conviction and sentence in United

States v. Norwood, 555 F.3d 1061 (9th Cir. 2009). The matter

is again before us on remand from the United States Supreme

Court. The Court vacated our earlier opinion and remanded

for reconsideration of Norwood’s Confrontation Clause claim

in light of Melendez-Diaz v. Massachusetts, 129 S. Ct. 2527

(2009). We again affirm Norwood’s conviction and sentence.

2504 UNITED STATES v. NORWOOD
FACTUAL AND PROCEDURAL BACKGROUND

In April of 2006, police responded to a domestic violence

call in Spokane, Washington. Upon entering the home, the

police encountered Norwood in the bedroom lying on his bed.

They smelled marijuana, and asked Norwood to step outside.

In response to police questioning, Norwood admitted he had

“just smoked a joint,” but denied having any other drugs in

the bedroom. The officers then arrested Norwood, and while

searching him discovered 0.86 grams of crack cocaine and

over $2500 dollars in his pockets. 

After obtaining a warrant, the police searched Norwood’s

home and vehicle. In the car, police found $7000 in cash, separated into $1000 tightly wrapped bundles. In the bedroom,

the police discovered two baggies containing a total of 7.7

grams of cocaine base and a digital scale dusted with drug

residue underneath the dresser next to the bed. Police also

found a wood box containing several “marijuana blunts,” or

butts of marijuana joints. In the closet, police found 42.4

grams of harvested marijuana in an ice cream box. Between

the mattress and the box spring of the bed, police found a 25

caliber semiautomatic handgun. The police did not find any

other drug paraphernalia. 

On August 2, 2007, Norwood was indicted in federal district court on three counts: (1) being a felon in possession of

a firearm in violation of 18 U.S.C. §§ 922(g)(1) and 924(e);

(2) possessing cocaine with the intent to distribute in violation

of 21 U.S.C. §§ 841(a)(1), 841(b)(1)(B), and 18 U.S.C. § 2;

and (3) possessing a firearm in furtherance of a drug trafficking crime in violation of 18 U.S.C. § 924(c)(1). The government eventually dismissed the first count and proceeded to

trial on the second and third counts. Norwood made a Federal

Rule of Criminal Procedure 29 motion to dismiss at the close

of the government’s case, another at the close of the defendant’s case, and still a third following trial, each of which was

denied. 

UNITED STATES v. NORWOOD 2505
As part of its case-in-chief, the government presented an

affidavit prepared by Jodi Arndt, an employee at the Washington Department of Employment Security, which certified

that “a diligent search of the department’s files failed to disclose any record of wages reported for [Norwood] from January 1, 2004 through March 31, 2007.” Although Arndt did not

appear in person to testify, the court admitted her affidavit as

circumstantial evidence that Norwood had no legal source for

the large amounts of cash that were found on his person and

in his car. 

During closing argument, Norwood’s counsel argued to the

jury that the drugs found in Norwood’s apartment were for

personal use, and suggested that Norwood had been smoking

the crack through the marijuana blunts that were found on the

scene, but which had not been seized or tested. The prosecutor

responded to the defense’s comments as follows: “When we

talk about those blunts, yeah, it would have been real nice if

the police got those. The police didn’t get those, but they

admitted that, but you know what, the defendant didn’t tell

them that he was smoking the marijuana with the crack

cocaine.” The defense immediately objected and moved for a

mistrial on the basis that Norwood’s right to silence had been

violated. The district court sustained the objection and

directed the jury not to consider the prosecution’s comment.

The court denied the motion for a mistrial. 

On October 31, 2007, the jury returned a verdict of guilty

on both counts. The district court sentenced Norwood to 120

months in prison for Count 2 and 60 months for Count 3, to

run consecutively. Norwood appealed to this court.

STANDARD OF REVIEW

Norwood alleges that his Sixth Amendment right to confront his accusers was violated when the district court admitted into evidence a written affidavit without requiring the

affiant to testify on the stand. We review admission of a

2506 UNITED STATES v. NORWOOD
declarant’s out-of-court statements de novo to test for possible

violations of the Confrontation Clause. Lilly v. Virginia, 527

U.S. 116, 137 (1999). If a constitutional violation has

occurred, we then review for harmless error. Chapman v. California, 386 U.S. 18, 21-22 (1967).

Norwood also alleges that the prosecution’s reference to the

fact that he had not spoken with police officers regarding possible use of cocaine in the marijuana blunts violated his due

process rights. We review a claim that the prosecution’s comment has violated the defendant’s right to silence de novo.

United States v. Bushyhead, 270 F.3d 905, 911 (9th Cir.

2001). If the prosecution’s comment is determined to be

improper, we then apply harmless error review. Id. 

Finally, Norwood argues that the evidence was insufficient

to convict him on the count of possession of a firearm in furtherance of a drug trafficking crime. When the defendant has

moved for a judgment of acquittal after the close of evidence,

this court reviews denial of the motion de novo. United States

v. Rios, 449 F.3d 1009, 1011 (9th Cir. 2006). We will not

overrule a conviction if “ ‘after viewing the evidence in the

light most favorable to the prosecution, any rational trier of

fact could have found the essential elements of the crime

beyond a reasonable doubt.’ ” Id. (quoting Jackson v. Virginia, 443 U.S. 307, 319 (1979)).

DISCUSSION

A. Claimed Violation of Norwood’s Sixth Amendment

Rights

[1] The Sixth Amendment of the U.S. Constitution guarantees an accused the right “to be confronted with the witnesses

against him.” U.S. CONST. amend. VI. The Supreme Court has

interpreted this right to apply to out-of-court statements as

well as in-court testimony. Crawford v. Washington, 541 U.S.

36, 50-51 (2004). As the Court summarized in Crawford,

UNITED STATES v. NORWOOD 2507
“[t]estimonial statements of witnesses absent from trial have

been admitted only where the declarant is unavailable, and

only where the defendant has had a prior opportunity to crossexamine.” Id. at 59. 

[2] The Supreme Court has yet to define the full extent to

which rights under the Confrontation Clause are applicable to

testimonial and nontestimonial statements. However, in

Melendez-Diaz, the Court provided additional guidance, concluding that “certificates of analysis” verifying the identity of

a contraband chemical substance are testimonial under Crawford. 129 S. Ct. at 2531, 2532. Quoting Crawford, the Court

explained that the “certificates of analysis” (which are “quite

plainly affidavits”) are “incontrovertibly a solemn declaration

or affirmation made for the purpose of establishing or proving

some fact” and “functionally identical to live, in-court testimony.” Id. (internal quotation marks omitted). Accordingly,

Melendez-Diaz held that such affidavits are inadmissible

unless the affiant testifies at trial, or is unavailable at trial but

had earlier been available for cross-examination. Id.

In this case, the government concedes that under MelendezDiaz, Washington Department of Employment Security

Assistant Records Officer Jodi Arndt’s affidavit, prepared for

use at Norwood’s trial to prove the absence of any record of

Norwood having legitimate employment, should not have

been admitted without Arndt presenting herself at trial for

examination.

[3] In light of the government’s concession that admission

of Arndt’s affidavit violated Norwood’s Sixth Amendment

rights, we must remand for a new trial unless the government

demonstrates beyond a reasonable doubt that admission of the

evidence was harmless. Chapman, 386 U.S. at 24. 

Whether such an error is harmless in a particular

case depends upon a host of factors . . . includ[ing]

the importance of the witness’ testimony in the pros2508 UNITED STATES v. NORWOOD
ecution’s case, whether the testimony was cumulative, the presence or absence of evidence

corroborating or contradicting the testimony of the

witness on material points, the extent of crossexamination otherwise permitted, and, of course, the

overall strength of the prosecution’s case.

Delaware v. Van Arsdall, 475 U.S. 673, 684 (1986).

Under the circumstances of this case, the government has

met its burden. Unlike the affidavit in Melendez-Diaz, the

affidavit in this case was not offered to prove an element of

the offense, nor was it the sole evidence of any relevant fact.

Rather, the testimony provided by the disputed affidavit was

not particularly important to the case, and was cumulative. 

Specifically, the affidavit was offered to prove the lack of

any record that Norwood had legitimate employment that

might explain his possession of $7,000 in cash stored in separate rolls of $1,000, bundled in duct tape, in the center console

of his vehicle, and another $2,531 in cash on his person.

The amount of cash and Norwood’s method of storing it

strongly suggest that the money did not derive from a legitimate source. Further, the jury heard evidence from Norwood’s girlfriend that he rarely left the house during the day,

did not receive paychecks from any regular employment, and

that his only job involved occasional cleaning of rental units.

Thus, Norwood’s girlfriend’s testimony established the same

fact as the disputed affidavit—that Norwood did not have any

sort of job that would have led to employment records with

the state—making the affidavit merely cumulative. Thus,

although the government relied on the affidavit in arguing to

the jury that the cash could not have derived from a legitimate

source, the government could have made precisely the same

argument based on the testimony of Norwood’s girlfriend.

Accordingly, the district court’s admission of the affidavit,

and the government’s reliance on it, were harmless.

UNITED STATES v. NORWOOD 2509
Other physical evidence suggested that Norwood was in the

drug distribution business. The smell of marijuana greeted the

officers when they arrived at Norwood’s house in response to

the domestic disturbance call. Norwood admitted to smoking

marijuana, and the police found two bags of marijuana in the

house. When the police found him, Norwood was lying on his

bed in his home. A loaded 25-caliber handgun was found

under his mattress. A tray bearing Norwood’s fingerprints

was found under the nightstand next to Norwood’s side of the

bed. On that tray were an electronic scale with traces of

cocaine on it, as well as baggies of crack cocaine. Bundles of

crack cocaine were also found on Norwood’s person when he

was searched incident to his arrest. 

[4] In sum, disregarding the affidavit entirely, the evidence

against Norwood on the elements of the offense of possession

of cocaine base with intent to distribute was sufficient to

establish his guilt beyond any reasonable doubt. Cf. United

States v. Larson, 495 F.3d 1094, 1108 (9th Cir. 2007) (en

banc) (concluding that a Confrontation Clause error was

harmless beyond any reasonable doubt where other evidence

established defendant’s participation in drug conspiracy).

B. Claimed Violation of Norwood’s Due Process Rights

at Trial and Sentencing 

Norwood charges that his due process rights were violated

both at trial and at sentencing. First, he argues that comments

made by the prosecution during closing arguments violated

his Fifth Amendment right to silence. Second, he argues that

the allegedly arbitrary sentencing distinction between crack

and powder cocaine violates the Due Process Clause of the

Fifth Amendment as well as the Eighth Amendment prohibition against cruel and unusual punishment. We address these

arguments in turn.

The Fifth Amendment protects a defendant’s right to

remain silent by assuring that “silence will carry no penalty,”

2510 UNITED STATES v. NORWOOD
and that the prosecution cannot use a defendant’s silence to

imply guilt. Doyle v. Ohio, 426 U.S. 610, 618 (1976). As

acknowledged by this court, “[t]he privilege against selfincrimination prevents the government’s use at trial of evidence of a defendant’s silence — not merely the silence itself,

but the circumstances of that silence as well.” Bushyhead, 270

F.3d at 913.

[5] However, where “the prosecutor’s reference to the

defendant’s opportunity to testify is a fair response to a claim

made by defendant or his counsel,” there is no Fifth Amendment violation. United States v. Robinson, 485 U.S. 25, 32

(1988). In Robinson, the defense counsel argued several times

in his closing argument that the government had denied Robinson the opportunity to explain his actions. Id. at 27. The

prosecutor responded by indicating that Robinson could have

explained himself by testifying. The Supreme Court ruled that

Robinson’s Fifth Amendment Rights were not thereby

infringed because this response did not “treat the defendant’s

silence as substantive evidence of guilt,” but rather answered

the defense’s claim that Robinson’s trial was unfair. Id. at 31-

32. 

[6] Similarly, in this case, the prosecutor merely responded

to Norwood’s implication of investigative misconduct.

Defense counsel implied that there was no evidence that Norwood had used crack cocaine only because the police had

failed to test the box of marijuana blunts. The prosecutor’s

comment was made to defend the police officers’ decision not

to test the marijuana blunts, not to suggest that Norwood’s

silence was substantive evidence of his guilt. 

[7] We will not reverse a lower court’s conviction “ ‘when

a prosecutorial comment is a single, isolated incident, does

not stress an inference of guilt from silence as the basis for

conviction, and is followed by a curative instruction.’ ”

United States v. Smith, 282 F.3d 758, 769 (9th Cir. 2002)

(quoting United States v. Tarazon, 989 F.2d 1045, 1051 (9th

UNITED STATES v. NORWOOD 2511
Cir. 1993)); see also United States v. Foster, 985 F.2d 466,

468 (9th Cir. 1993) (recognizing that “there is no Doyle violation if the district court promptly sustains a timely objection

to a question concerning post-arrest silence, and gives a curative jury instruction”). In this case, the prosecution’s allegedly

violative comment was a single incident in closing argument,

and as indicated above, served primarily to refute an implied

claim of investigative carelessness. The district court immediately sustained Norwood’s objection to the comment and provided a curative instruction. If any error existed on this

record, it was harmless. Based on these facts, we affirm Norwood’s conviction. 

The Fifth Amendment also guarantees a defendant the right

to due process at sentencing. Norwood argues that his sentence, authorized by 21 U.S.C. § 841(b), is cruel and unusual

in violation of the Eighth Amendment and based on an arbitrary distinction that violates the Due Process Clause of the

Fifth Amendment. See Chapman v. United States, 500 U.S.

453, 465 (1991). Norwood acknowledges that we have previously addressed this issue in United States v. Harding, 971

F.2d 410 (9th Cir. 1992). However, he raises the issue in this

appeal because “[n]o issue in the world of federal sentencing

has sparked more controversy or engendered more criticism

than the punishment scheme for crack and powder cocaine.”

Steven L. Chanenson & Douglas A. Berman, Federal

Cocaine Sentencing in Transition, 19 FED. SENT. R. 291 291

(2007).

[8] Under our precedents, Norwood must show that there

is not even a debatable basis for the distinction between crack

and powder cocaine in order to successfully challenge Congress’ statutory distinction between these two forms of

cocaine base. Harding, 971 F.2d at 413 (citing United States

v. Carolene Prods. Co., 304 U.S. 144, 154 (1938)). He has

failed to do so. 

In his brief, Norwood cites a series of Special Reports to

Congress provided by the Sentencing Commission for the past

2512 UNITED STATES v. NORWOOD
thirteen years. Although these reports indicate that some of

the alleged differences between crack and powder cocaine

cited by Congress in 1986 have been scientifically disproven,

the reports still suggest that the two forms have distinctive

qualities and that there are reasons for treating the two forms

differently. See United States Sentencing Commission, 2007

REPORT TO CONGRESS: COCAINE AND FEDERAL SENTENCING

POLICY (May 2007). 

[9] As Norwood himself seems to acknowledge, in a case

such as this it is the role of Congress to alter the relevant statutes, and we remain bound by the statutes currently in effect

so long as Congress has a debatable rationale for preserving

its rational-basis distinction. Norwood has also failed to provide any persuasive rationale for why his sentence should be

considered cruel and unusual under the Eighth Amendment.

Accordingly, we affirm Norwood’s sentence. 

C. Sufficiency of the Evidence

The standard of review for sufficiency of the evidence to

support a criminal conviction is well established. The

Supreme Court has long advised that a reviewing court is not

required to determine 

whether it believes that the evidence at trial established guilt beyond a reasonable doubt. Instead, the

relevant question is whether, after viewing the evidence in the light most favorable to the prosecution,

any rational trier of fact could have found the essential elements of the crime beyond a reasonable

doubt. 

Jackson, 443 U.S. at 319 (internal citation omitted). 

To obtain a conviction under § 924(c)(1), the government

must show that the defendant’s possession of the firearm was

“in furtherance” of his drug crime. United States v. Lopez,

UNITED STATES v. NORWOOD 2513
477 F.3d 1110, 1115 (9th Cir. 2007). As we noted in Rios,

449 F.3d at 1013, § 924(c)(1) was amended in 1998 to

employ the provision that the firearm be possessed “in furtherance of” the drug trafficking crime. This amendment

superceded the previous standard that the offender “use or

carry” a firearm “during and in relation to any . . . drug trafficking crime.” 18 U.S.C. § 924(c)(1) (1994), amended by 18

U.S.C. § 924(c)(1) (Supp. IV 1998). The amendment sought

to broaden the scope of § 924(c)(1) to include more conduct

than actually using or carrying the weapon during the course

of the drug trafficking offense. H.R. REP. NO. 105-344, at 6

(1997). See also Rios, 449 F.3d at 1013-14 (detailing the reasons behind the alteration, including Congress’s disapproval

of Bailey v. United States, 516 U.S. 137 (1995) (defining

“use” to require active employment of a firearm)). 

[10] However, “mere possession of a firearm by an individual convicted of a drug crime is not sufficient for a rational

trier of fact to convict” under § 924(c)(1). Rios, 449 F.3d at

1012. A conviction is only supported by sufficient evidence

when the facts “reveal a nexus between the guns discovered

and the underlying offense.” United States v. Krouse, 370

F.3d 965, 968 (2004). To prove this nexus, the government

must “illustrate through specific facts, which tie the defendant

to the firearm, that the firearm was possessed to advance or

promote the criminal activity.” Id. at 967 (quoting H.R. REP.

NO. 105-334, at 12 (1997)). Expert testimony indicating that

drug traffickers “generally use firearms to further their drug

crimes” is not sufficient. Rios, 449 F.3d at 1014.

In cases where the underlying drug offense is possession

with intent to distribute, the government has provided adequate evidence of a nexus between the firearm and the drug

crime by showing that the firearm is in the same room and

“within easy reach” of a “substantial quantity of drugs and

drug trafficking paraphernalia.” Krouse, 370 F.3d at 968; see

also Lopez, 477 F.3d at 1115 (“Because Lopez’s drug crime

was possession of cocaine with intent to distribute, evidence

2514 UNITED STATES v. NORWOOD
establishing the ready accessibility of the gun while he was in

possession of a distributable amount of cocaine satisfied the

‘in furtherance’ requirement.”). In this case, while the quantity of drugs is smaller and the circumstances establishing a

nexus are not as clear as those in Krouse or Lopez, we cannot

say that “[no] rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.” Jackson, 443 U.S. at 319. 

[11] The gun at issue in this case was found by the police

only a few feet from evidence that the jury found sufficient

to establish Norwood’s possession of cocaine with intent to

distribute conviction. Specifically, the police found a digital

scale, on which drug residue and Norwood’s fingerprints were

found, and 7.7 grams of cocaine packaged in two “eight ball”

sizes, which both parties stipulated is a commercial amount

that could be sold on the street. In addition, the police first

discovered Norwood lying on top of the mattress where the

gun was hidden, with over $2500 dollars in his pocket, along

with a smaller amount of cocaine, which witnesses testified

could still be considered a commercial amount. Given this

evidence, we affirm the district court’s ruling that “a reasonable jury could infer that [Norwood] possessed the firearm in

furtherance of the trafficking of crack, specifically to protect

himself and his business.” Order Den. Mot. For J. of Acquittal, United States v. Norwood, No. 06-091, (E.D. Wash.

2007). 

AFFIRMED.

UNITED STATES v. NORWOOD 2515