NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA,

Plaintiff

- Appellee,

v. MILES BARTON NICHOLS,

Defendant

- Appellant. No. 18

- 30067
D.C. No. 4:16

- cr - 06033

- EFS

- 1

MEMORANDUM *

Appeal from the United States District Court for the Eastern District of Washington Edward F. Shea, District Judge, Presiding Argued and Submitted July 10, 2019 Seattle, Washington Before: BERZON and WATFORD, Circuit Judges, and ROTHSTEIN, ** District Judge.
I. INTRODUCTION In October 2017, Defendant

- Appellant Miles Nichols was tried for and convicted of: (1) possession with intent to distribute five grams or more of

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36

- 3.

** The Honorable Barbara Jacobs Rothstein, United States District Judge for the Western District of Washington, sitting by designation. 

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methamphetamine in violation of 21 U.S.C. § 841(a)(1), (b)(1)(B)(viii) (Count One); (2) possession with intent to distribute 50 grams or more of methamphetamine in violation of 21 U.S.C. § 841(a)(1), (b)(1)(A)(viii) (Count Two); (3) possession of a firearm in furtherance of a drug trafficking crime in violation of 18 U.S.C. § 924(c)(1)(A) (Count Three); and (4) be ing a felon in possession of a firearm in violation of 18 U.S.C. § 922(g)(1) (Count Four). In this appeal, Nichols challenges four decisions of the district court: (1) denial of a motion to suppress evidence or, in the alternative, denial of an evidentiar y hearing on the reliability of a witness statement included in a search warrant affidavit; (2) denial of his motion in limine to exclude the government’s expert witness on drug trafficking modus operandi ; (3) denial of his request for a jury instruction o n the lesser included offense of simple possession; and (4) submitting to the jury a supplemental instruction on the definition of “in furtherance of,” with respect to the charge of possession of a firearm in furtherance of a drug trafficking offense. This c ourt has jurisdiction pursuant to 28 U.S.C. §1291.
II. FACTUAL BACKGROUND In December 2015, police officers were surveilling the M Hotel in Richland, Washington, an establishment known for recent criminal activity, and observed a

woman

— later identified a s Crystal Bowen

— knock on the door to Room Number3

114. Nichols, already known to the officers for suspected drug activity, let her in. Only a few minutes later, Bowen left the room. The officers then made contact with Nichols, who declined to allow them to search the hotel room. Nichols also gave the officers the name of the woman who had just left his room, giving a name that the officers later deemed to be false. On further investigation, the officers were able to identify Bowen from a booking photo. The officers ascertained there was an outstanding arrest warrant for Bowen, located her, and placed her under arrest. In an interview immediately after the arrest, Bowen confirmed that she had just been at the M Hotel, as the officers had observed. She further admitted she had just purchased $50 of methamphetamine from Nichols and had purchased methamphetamine from Nichols in the past. Based on Bowen’s statement and the officers’ observations at the M Hotel, the officers telephonically applied for and were gra nted a warrant to search Nichols’ room at the M Hotel. During the search, officers discovered approximately 29 grams of methamphetamine, drug paraphernalia, a digital scale, ledger paperwork, packaging materials, and two handguns, one found under the

mattr ess and one in the nightstand next to the bed. Nichols was not present. The officers subsequently located Nichols at a Days Inn in Kennewick, Washington, and took him into custody. During a recorded interview, Nichols4

admitted owning the firearms that wer e recovered at the M Hote l. He also told the officers that there were three ounces of methamphetamine in the nightstand drawer at the Days Inn; and said he sold an average of two pounds of methamphetamine a week. Officers subsequently obtained another sea rch warrant, this time to search Nichols’ room at the Days Inn. Upon executing the warrant, the officers discovered approximately 3.5 ounces of methamphetamine, drug paraphernalia, packaging material, ledger paperwork, and currency.
III. DISCUSSION
A. Motion to Suppress Evidence or for Franks Hearing Nichols filed a pretrial motion to suppress evidence seized pursuant to the first search warrant, and the additional evidence, subsequently obtained, as fruit of the p oisonous tree. In the alternative, he requested an evidentiary hearing into circumstances surrounding the first search warrant under Franks v. Delaware , 438 U.S. 154 (1978). 1 In support of his motion, Nichols argued that the officer seeking the warrant

1 In Franks , the Supreme Court held that the Fourth Amendm ent requires an evidentiary hearing at the defendant’s request on the validity of an affidavit underlying a search warrant “[1] where the defendant makes a substantial preliminary showing that a false statement knowingly and intentionally, or with reckless disregard for the truth, was included by the affiant in the warrant affidavit, and [2] if the allegedly false statement is necessary to the finding of probable cause.” 438 U.S. at 155

– 56.5

in tentionally or recklessly omitted from the warrant affidavit the fact that Bowen had six months earlier, in an unrelated matter, pleaded guilty to making a false statement to a public officer. The circumstances of that conviction were that Bowen told a pol ice officer that a man the police were looking for was not in the house with her, when in fact he was. The district court denied Nichols’ motion. On appeal, Nichols claims that the omission of information related to Bowen’s conviction was misleading, and that the omission was reckless or deliberate. He claims that the officers must have known that Bowen had been convicted of providing a false statement, as the outstanding warrant on which the officers arrested Bowen “stemmed from” the conviction and assert s that experienced narcotics officers would have known that Bowen’s conviction was material to the magistrate’s evaluation of probable cause. We review the district court’s denial of the motion to suppress or hold a Franks hearing de novo

. S ee United States v. McTiernan, 695 F.3d 882, 887 (9th Cir. 2012); United States v. Reeves , 210 F.3d 1041, 1044 (9th Cir. 2000). Whether false statements or omissions are intentional or reckless is a factual finding reviewed under the clearly erroneous standar d

. United States v. Dozier , 844 F.2d 701, 705 (9th Cir. 1988). We affirm the district court’s denial of the motion for a Franks hearing, on two alternate and independently sufficient grounds. First, Nichols has failed to meet the first requirement for a F ranks hearing,6

which requires a “substantial preliminary showing that a false statement knowingly and intentionally, or with reckless disregard for the truth, was included by the affiant in the warrant affidavit.” Franks , 438 U.S. at 155

– 56. I t was not cle ar error for the district court to find that there was “no evidence” that the officers had actual knowledge of Bowen’s conviction for making a false statement, or that “there is insufficient evidence of reckless disregard for the truth.” Second, Nichols f

ailed to establish that the alleged omission was material to the magistrate’s probable cause determination, the second requirement for a Franks hearing. In this regard, several factors bolstered Bowen’s reliability, all of which were shared with the issuin g magistrate: (1) Nichols’ prior convictions for multiple drug offenses; (2) the self

- incriminating nature of Bowen’s confession that she had just purchased methamphetamine; (3) the office rs’ observations at the M Hotel ; and (4) Nichols’ failure to name Cr ystal Bowen as the woman they had observed most recently leaving his room, which the officers belie ved had been a deliberate lie. Taken together, the information presented to the magistrate was sufficient to establish probab le cause justifying the warrant

. For this reason, we also affirm the district court’s finding that the search warrant was supported by probable cause, and its denial of the motion to suppress. We review a probable cause determination for clear error and “will not find a search warrant i nvalid if the magistrate judge had a ‘substantial basis’ for7

concluding that the supporting affidavit established probable cause.’” Reeves , 210 F.3d at 1046, citing United States v. Clark , 31 F.3d 831, 834 (9th Cir.1994) . As noted above, the officers gave the magistrate ample information corroborating Bowen’s statements. Under these circumstances, the district court correctly concluded that the magistr ate had a substantial basis for finding probable cause justifying the warrant.
B. The Trial Court’s Admission of Government’s Modus Operandi Expert Witness Was Not an Abuse of Discretion We also affirm the trial court’s denial of Nichols’ motion to exclude testimony of the government’s expert witness, who testified to the modus operandi of drug traffickers. As a general matter, this c ourt has repeatedly upheld such testimony. See, e.g. , Un ited States v. Anchrum , 590 F.3d 795, 804 (9th Cir. 2009) (“Law enforcement experts may ‘testify as to the general practices of criminals to establish the defendants’ modus operandi ’ which ‘helps the jury to understand complex criminal activities, and aler ts it to the possibility that combinations of seemingly innocuous events may indicate criminal behavior.’”); United States v.
Freeman , 498 F.3d 893, 906 (9th Cir. 2007) (“Government experts may ‘ testify as to the general practices of criminals to establish the defendants’ modus operandi

. ’ ”). Furthermore, the expert witness here did not, as Nichols argues, violate Federal Rule of Evidence 704(b), which prohibits an expert from opining whether8

a defendant did or did not have a mental state constituting an el ement of the crime charged. The expert avoided any commentary on Nichols’ actual mental state. Instead, the expert testified in response to several hypotheticals posed by the prosecution

. He stat ed that , in his experience, the amount of methamphetamine

rec overed from Nichols’ hotel rooms was “consistent with what is up for distribution.” This c ourt has upheld similar testimony in the past. See, e.g. , United States v. Hayat , 710 F.3d 875, 901 (9th Cir. 2013)

. Such testimony is allowed “so long as the expert does not draw the ultimate inference or conclusion for the jury and the ultimate inference or conclusion does not necessarily follow from the testimony.” Id. (quoting United States v. Morales , 108 F.3d 1031, 1038 (9th Cir. 1997) )

. Finally, Nichols challen ges the reliability of the expert’s dosage estimates for amounts of methamphetamine typically possessed for personal use as opposed to distribution. Nichols offers no evidence demonstrating that the expert’s estimate was incorrect; only that it was “incred ibly conservative” and different than estimates given in other cases. Nichols fails to cite any cases holding that an expert’s opinion is unreliable and should be excluded merely because it differs from other expert opinions. The district court properly al lowed the testimony.
C. The Trial Court’s Denial of Defendant’s Request for a Jury Instruction on Lesser Included Offense Was Not an Abuse of Discretion To be entitled to an instruction on a lesser included offense, a defendant9

must establish that , given the evidence produced at trial, a rational jury could find the defendant guilty of the lesser offense, yet acquit him of the greater. Schmuck v. United States , 489 U.S. 705, 716 n. 8, 109 (1989), citing Keeble v. United States , 412 U.S. 205, 208 (1973). Nichols argues that a rational jury could have acquitted him of possession with intent to distribute and convicted him of the lesser included offense of simple possession. He claims that the amount s recovered in each hotel

room

— approximately 29 grams and 94 grams, respectively

— were small enough that a rational jury could have discounted the testimony of the government’s expert as to usage doses, and rationally concluded that the amounts were intende d for personal use only

. Nichols’ argument fails to account for the substantial and mostly uncontroverted evidence corroborating an intent to distribute

. I n addition to the large quantities of methamphetamine recovered from the hotel rooms, the evidence
i nclud ed Nichols’ confession, observations of the officers surveilling the M Hotel, the testimony of witnesses, and the drug trafficking paraphernalia recovered from Nichols’ rooms. Under these circumstances, it was entirely within the trial court’s discret ion to refuse to give an instruction for simple possession. See United States v. Vaandering , 50 F.3d 696, 703 (9th Cir. 1995) (“[T]he district court may refuse to give an instruction on simple possession where there is a large quantity of a drug and other evidence tending to establish distribution.”).10

D. The Supplemental Instruction on “In Furtherance” Was a Correct Statement of the Law Finally, Nichols challenges the district court’s supplemental jury instruction on the definition of “in furtherance” as it related to Count III, being in possession of a firearm in furtherance of a drug trafficking crime. In response to a request for clarification of the phrase from the jury, the trial court stated: In furtherance of means there must be a connection betwe en the firearm and the defendant’s possession of methamphetamine with intent to distribute. In determining whether a firearm was possessed in furtherance of possession of methamphetamine with intent to distribute, you may consider the totality of the circu mstances, including the proximity, accessibility, and strategic location of the firearm as part of the defendant’s possession of a distribution amount of methamphetamine.
Nichols first argues that the definition does not adequately convey that the firear m must have played some part in furthering the drug crime, and would have allowed the jury to convict him under Count III for mere ly possessi ng the firearm

. This argument fails because as we have previously noted, “in furtherance is a phrase of general use that naturally connotes more than mere possession.” United States v. Lopez , 477 F.3d 1110, 1115

– 16 (9th Cir. 2007). As such, the definition given more than adequ ately conveyed the requisite “in furtherance” element of the crime

. Id

. Nichols also argues t hat in enumerating several factors that a jury could consider, the district court listed only those factors

— “proximity, accessibility, and11

strategic location of the firearm”

— weighing in favor of the government’s case, and not other factors that could have been exculpatory. But “[j]ury instructions need not be perfect to withstand challenge on appeal. The proper inquiry is whether, considering the charge as a whole, the trial court’s instructions fairly and adequately covered the issues presented, correctly stated the law, and were not misleading.” Floyd v. Laws , 929 F.2d 1390, 1394 (9th Cir. 1991). The trial court’s supplemental instruction, in concert with the primary instructions, met this standard. Most apparently, it correctly stated the law; this
Court has repeatedly upheld convictions in cases in which the only indicium of a firearm being used “in furtherance of” the drug crime was the strategic location or accessibility of that firearm to the business of drug trafficking. See, e.g., United
States v. M

ahan , 586 F.3d 1185, 1188 (9th Cir. 2009) (“When guns are located within strategic reach of a dealer such that they can use the guns to protect their illicit trade or the proceeds thereof, then a defendant’s possession would typically be characterized as ‘ in furtherance of’ the drug crime.”); Lopez , 477 F.3d at 1115 (“Because Lopez’s drug crime was possession of cocaine with intent to distribute, evidence establishing the ready accessibility of the gun while he was in possession of a distributable amount of cocaine satisfied the ‘in furtherance’ requirement.”). Moreover, the instruction was not misleading. The district court did not instruct the jury that it could consider only the proximity, access, and strategic12

location of the firearms

— to the contrary, i t explicitly said the jury “may consider the totality of the circumstances.” The supplemental instruction did not constitute

error. AFFIRMED 2

.

2 Appellee’s motion to submit case on briefs, docket 51, is denied as moot.1 United States v. Miles Nichols , No. 18
- 30067 BERZON, Circuit Judge, concurring : I agree with the majority disposition except for the following: In my view,
the district court erred by provid ing the jury with an inaccurate definition of the

term “in furtherance” contained in 18 U.S.C. § 924(c)(1)(A). I concur in affirming
the conviction , however, because th e instructional error w as ultimately harmless

. 1. As to the offense’s “in furtherance” element, the district court’s proposed
final jury instruction read: “The defendant possessed the firearm or firearms in furtherance of the crime of possession with intent to distribute methamphetamine.”
Nichols asked for a specific instruction defining “in furtherance

. ” He proposed the following language , which he took from the Modern Federal Jury Instructions : To possess a firearm in furtherance of the crime means that t he firearm helped forward, advance or promote the commission of the other crime. The mere possession or presence of the firearm at the scene of the crime is not sufficient under this definition. The firearm must have played some part in furthering the crime in order for this element to be satisfied. Possession in furtherance requires that the possession be incident to and an essential part of the crime. To be convinced beyond a reasonable doubt of this element, you need to find some specific nexus between the drug offense and the firearm. (emphasis added). His request was denied. Nichols objected to the r efusal to give his proffered instruction . He thought it imperative that the jury be provided with a substantive definition of “in 

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U.S. COURT OF APPEAL S2 furtherance , ” as he regarded the “term [a] s vague, and . . . invit [ing] the jury to come back with a question on what [it] mea ns.”
A s Nichols predicted, the jury sen t a note during deliberati on requesting a supplemental instruction as to the definition of “in furtherance.” The court then defined the term, with the following exchange occu r ring between the court and jury:
THE COURT: “ In furtherance ” means there must be a connection between the firearm(s) and defendant ’ s possession of methamphetamine with intent to distribute. In determining whether a firearm was possessed in furtherance of posse ssion of methamphetamine with intent to distribute, you may consider the totality of the circumstances, including the proximity, accessibility, and strategic location of the firearm(s) as part of the defendant ’ s possession of a distributable amount of meth amphetamine. JURY MEMBER: I ’ m sorry. That ’ s as clear as mud to me. Can you expound on that at all? THE COURT: No. I think if you just

-- if you just take some time and just talk about it, I think it will be helpful to you. So I don't think I can read it ag ain, but I suspect by interacting and dialoguing, like you do with all the instructions, a group

- think on this subject will be helpful to each of you. The jury did not ask for further clarification

. It later found Nichols guilty of possession of a firearm in furtherance of a drug trafficking crime. 2. T he district court’s supplemental instruction provid ed the jury with an affirmatively inaccurate definition of “in furtherance” and so misstated the law

. As a matter of plain language, “in furtherance” is not equivalent to any connection between drug possession for purpose of distribution and firearms. And our case3 law so recognizes, specifying that “in furtherance” includes a purpose or intent component

. In United States v. Lopez , for example, the “in furtherance” element was defined as “intend[ing] to use [a] firearm to promote or to facilitate ” a drug trafficking crime. 477 F.3d 1110 , 1115 (9th Cir. 2007)

. United States v. Krouse , adopt ing a House Ju diciary Committee report’s definition of the element, similarly explained that “[t]he government must clearly show that a firearm was possessed to advance or promote the commission of the underlying offense.” 370 F.3d 965 , 967 (9th Cir. 2004) (quoting H.R. Rep. No. 105

– 344 (1997), 1997 WL 668339, at *12). In each case, we required something more than just an amorphous “connection” between the firearm and the drug trafficking crime

— a purpose to facilitate, promote, or advance the commission of a drug traff icking crime was needed . And for good reason. Defining “in furtherance” solely as a “connection” or “nexus” between the firearm and drug trafficking crime, as the district court did, would capture conduct not meant to be criminal under § 924(c)(1)(A). Such a vague definition, for example, could result in a defendant being convicted under the statute if a firearm was accidentally left by a person purchasing drugs from him
or her. Without our circuit’s tailored definition , which req uires the defendant’s actual “inten[t] to use the firearm to promote or to facilitate” the drug trafficking4 crime, see Lopez , 477 F.3d at 1115, such happenstance could result in a conviction
under § 924(c)(1)(A). Rejecting this conclusion, t he majority focuses its inquiry concerning the validity of the “in furtherance” instruction on whether the court properly declined to include mere possession language in its supplemental instruction. The majority concludes that, because “in furtherance is a phrase of general use that naturally connotes more than mere possession,” the court’s instruction was proper. Maj. Op. at 10. In narrowing its inquiry in that manner, the majority misses the point. The
district court’s definition is not incorrect because it did not include mere possession language (although such language might have been quite useful to the jury) ; it is incorrect because the court improperly defined “in furtherance” as requiring only some “connection” between the firearm and drug trafficking crime.
Th at definition conflicts with the statutory language and our case law , which requires not any connection but a certain kind of connection

. Furthermore, contrary to the majority’s suggestion , t he rest of the district court’s supplemental instruction does not correct the mistake

. The instruction’s
second sentence enumerates the evidence that may prove “in furtherance , ” such as the “proximity, accessibility, and strategic location of the firearm(s)

. ” It does not correct the previous misstate ment of the definition or clarify what “in furtherance” actually means

.5 In sum, d espite the clear guidance from our case law , the district court provided the jury with a definition that was “as clear as mud,” as one ju ror aptly characterized it

. By doing so, the district court erred. 3. W here a district court gives an erroneous jury instruction, w e must consider whether the error was harmless. “An error in describing a n element of the offense in a jury instruction is harmless only if it is clear beyond a reasonable doubt that a rational jury would have found the defendant guilty
absent the error.” United States v. Liu , 731 F.3d 982, 992 (9th Cir. 2013) (internal citatio n omitted). I believe that standard is met here, so I concur in the judgment as a whole rather than dissent. The police officers recovered 29 grams of methamphetamine from a nightstand drawer in Nichols ’ hotel room in the M Hotel, as well as other drug pa raphernalia in the room indicating distribution of drugs. They also found two l oaded handguns, one under the left side of the mattress near the

same nightstand and the other in side that nightstand. The very close proximity, accessibility, and strategic location of loaded firearms to a distributable quantity of methamphetamine recovered demonstrates beyond a
reasonable doubt that the firearm s were kept “in furtherance” of a drug trafficking crime . Given their locati on s , the firearm s provid ed protection against theft of drugs or violence during drug transactions , as well as a6 means of enforcing payment

. T he district court’s error was therefore
harmless. In short, I concur in affirming the conviction but would hold

er roneous the “in furtherance” instruction given.