UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

No. 12-4891

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v.

HAROLD A. HABECK, II,

Defendant-Appellant.

Appeal from the United States District Court for the Eastern 

District of Virgnia, at Richmond. John A. Gibney, Jr., District 

Judge. (3:12-cr-00075-JAG-1)

Submitted: June 5, 2013 Decided: June 24, 2013

Before WILKINSON, KING, and GREGORY, Circuit Judges.

Affirmed by unpublished per curiam opinion.

Michael S. Nachmanoff, Federal Public Defender, Alexandria, 

Virginia; Nia A. Vidal, Assistant Federal Public Defender, 

Patrick L. Bryant, OFFICE OF THE FEDERAL PUBLIC DEFENDER, 

Richmond, Virginia, for Appellant. Neil H. MacBride, United 

States Attorney, Alexandria, Virginia; Michael A. Jagels, 

Special Assistant United States Attorney, OFFICE OF THE UNITED 

STATES ATTORNEY, Richmond, Virginia, for Appellee.

Unpublished opinions are not binding precedent in this circuit.
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PER CURIAM:

Harold A. Habeck, II, appeals from his conviction by a jury 

for possessing a firearm in furtherance of a drug trafficking 

crime under 18 U.S.C. § 924(c). Habeck asserts that the 

evidence at trial was insufficient to support the jury’s verdict 

and that the district court erred in its instruction regarding 

the “in furtherance” element of the crime. For the reasons that 

follow, we affirm.

I.

Habeck was a resident of Richmond, Virginia, who conducted 

an extensive marijuana growing operation out of his home. After 

a month-long investigation and the arrest of one of Habeck’s 

customers, who was seen exiting Habeck’s house and who admitted 

to purchasing marijuana from him, police obtained a search 

warrant for his house.

Upon entering, police discovered that Habeck had screwed 

shut all of the windows and all of the doors except the one 

through which they had entered. Habeck was subsequently given 

Miranda warnings and interviewed. He informed the officers that 

he was growing “top-end weed” for sale, J.A. 57, and identified 

the locations of three firearms in the house. He also admitted 

that he had screwed the doors and windows closed because he was 

“paranoid that somebody may try to rob” him. J.A. 56.
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Police then conducted a search of Habeck’s house. They 

discovered 397 marijuana plants, along with fertilizer, watering 

tools, power converters, lights, an elaborate ventilation 

system, and other accessories related to growing high-grade

marijuana. Habeck’s product was high-grade in that it sold for 

between 10 and 20 times more than ordinary marijuana.

In addition to the drug paraphernalia, investigators also 

found the three firearms Habeck had identified: one 

semiautomatic handgun, one revolver, and one shotgun. The 

handgun was hidden behind a television set in the lower story 

den, the revolver was hidden behind a television set in Habeck’s 

bedroom, and the shotgun was behind several golf clubs in the 

dining room. All three weapons were loaded when they were 

discovered. Neither the handgun nor the revolver had safety 

features; both were primed to fire with a single pull of the 

trigger. Furthermore, the handgun was loaded with “hollow 

point” bullets, which are anti-personnel rounds that cause more 

harm to humans than normal ammunition.

As a result of the investigation, Habeck was charged with 

one count of knowingly possessing with intent to distribute one 

hundred or more marijuana plants in violation of 21 U.S.C. 

§§ 841(a)(1) and (b)(1)(B) and one count of possession of 

firearms in furtherance of the drug trafficking offense in 

violation of 18 U.S.C. § 924(c). Habeck pleaded guilty to the 
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first count, but elected to go to trial on the second count. 

The jury convicted him, and this appeal followed.

II.

Habeck argues principally that there was insufficient 

evidence to support his conviction. This court reviews the 

sufficiency of evidence underlying a criminal conviction “by 

determining whether there is substantial evidence in the record, 

when viewed in the light most favorable to the government, to 

support the conviction.” United States v. Jaensch, 665 F.3d 83, 

93 (4th Cir. 2011) (internal quotation marks omitted). We will 

decline to overturn a jury verdict if “any rational trier of 

fact could have found the essential elements of the crime beyond 

a reasonable doubt.” United States v. Dinkins, 691 F.3d 358, 

387 (4th Cir. 2012) (internal quotation marks omitted).

In order to convict Habeck, the jury was required to 

determine that he had possessed a firearm in furtherance of a 

drug trafficking crime. This court held in United States v. 

Lomax, 293 F.3d 701, 705 (4th Cir. 2002), that whether or not a 

firearm is used “in furtherance” of a crime is “ultimately a 

factual question” entrusted to the fact-finder. We noted in 

Lomax several factors that a jury might consider in deciding 

whether there was a connection between the possession of a 

firearm and a drug trafficking crime. These included, inter

alia, “the type of drug activity that is being conducted, 
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accessibility of the firearm, the type of weapon, whether the 

weapon is stolen, the status of the possession (legitimate or 

illegal), whether the gun is loaded, proximity to drugs or drug 

profits, and the time and circumstances under which the gun is 

found.” Id. (internal quotation marks omitted).

In light of these factors, sufficient evidence was adduced 

at trial to sustain the conviction. Habeck admitted that he 

grew and sold high-grade marijuana as well as owned firearms. 

Unrebutted testimony at trial established that three firearms 

were found in the same house as the drugs, concealed 

strategically in different places known only to Habeck. All 

three weapons were loaded when they were found, two were ready 

to fire with a single pull of the trigger, and one of those was 

loaded with particularly deadly “hollow point” bullets. 

Moreover, Habeck admitted he was “paranoid that somebody may try 

to rob” him, and amply demonstrated that by screwing shut every 

window and every door but one in the house. The jury could 

certainly have concluded that his apprehension stemmed from a 

perception that his house was an attractive target for robbers 

due to the presence of expensive equipment and 397 plants that 

were producing high-grade marijuana, and that he kept his 

firearms to defend his operation. When taken together and 

viewed in a light most favorable to the government, this 

evidence was sufficient for a rational jury to determine that 

Habeck possessed the guns in furtherance of trafficking drugs.
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We find unconvincing Habeck’s argument that a rational jury 

could determine only that the above evidence showed that he had 

both guns and drugs in the same house. Although the defendant 

offered testimony that he owned the guns for self-defense and 

hunting, the jury was not obligated to accept his explanation. 

We decline to overturn the jury on this quintessentially factual 

question, Lomax, 293 F.3d at 706, and it follows that the 

conviction rested on sufficient evidentiary support.

III.

Habeck claims that the district court erred in instructing 

the jury on the “in furtherance” element of 18 U.S.C. § 924(c). 

We review a district court’s decision on whether or not “to give 

a jury instruction and the content of an instruction” for abuse 

of discretion. United States v. Ellis, 121 F.3d 908, 923 (4th 

Cir. 1997) (internal quotation marks omitted). We do not review 

an instruction in isolation, and “will not reverse provided that 

the instructions, taken as a whole, adequately state the 

controlling law.” United States v. Ryan-Webster, 353 F.3d 353, 

364 n.17 (4th Cir. 2003) (internal quotation marks omitted).

In this case, the district court instructed the jury 

regarding the “in furtherance” element as follows:

The term “to possess a firearm in furtherance of a 

drug trafficking crime” means that the firearm helped 

forward, advance or promote the commission of the drug 

trafficking crime. The mere possession of a firearm 

at the scene of such a crime is not sufficient under 
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this definition. The government must present evidence 

which proves beyond a reasonable doubt that the

firearm played some part in furthering the crime. In 

making its determination, the jury may consider the 

evidence as to the ways in which a firearm might be 

involved in committing the crime of drug trafficking. 

In addition, the jury may consider but is not limited 

to considering the type of firearm, the accessibility 

of the firearm, the firearm’s proximity to drugs or 

drug profits, the circumstances under which the 

firearm was found, and the nature of the drug 

trafficking alleged in this case.

J.A. 296.

Habeck first argues that this instruction was needlessly 

cumulative. We disagree. It was not an abuse of discretion for 

the district court to provide some guidance to the jury rather 

than assuming that the jury would come to an accurate 

understanding of the law on its own. Here, the district court 

simply offered several relevant factors and did not imply to the 

jury how it should decide on those factors. It also accurately 

described the governing legal principles.

Second, Habeck contends that the inclusion of several of 

the Lomax factors in the instruction prejudiced him by focusing 

the jury on the government’s theory of the case. However, it is 

far-fetched to conclude that the jury was unduly focused on the 

government’s theory as a result of this instruction. As an 

initial matter, the record reveals that the district court 

actually adopted language proposed by Habeck almost verbatim for 

the first half of the instruction. The instruction explained 

that the “in furtherance” element “means that the firearm helped 
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forward, advance or promote the commission of the drug 

trafficking crime,” that “mere possession of a firearm at the 

scene of such a crime is not sufficient under this definition,” 

and that the “government must present evidence which proves 

beyond a reasonable doubt that the firearm played some part in 

furthering the crime.” J.A. 296. Habeck thus cannot argue that 

he did not have a substantial impact on the shape of the final 

instruction, and we are hard pressed to imagine how the addition 

of two sentences, which did no more than recite existing law, 

prejudiced him.

Moreover, the district court took great care to instruct 

the jury on its decisive role. It instructed the jury that 

“[n]othing said in these instructions . . . is to suggest or 

convey to you in any way or manner any intimation as to what 

verdict I think you should return.” J.A. 299. The judge 

plainly preserved the primacy of the jury’s fact-finding role: 

“What the verdict shall be is the exclusive duty and 

responsibility of the jury. As I have told you many times, you 

are the sole judges of the facts.” Id.

Taken in their totality, the instructions were well within 

the district court’s discretion. We thus affirm the judgment.

AFFIRMED