USA v. Sean S. Scott

[DO NOT PUBLISH]
In the
United States Court of Appeals
For the Eleventh Circuit
____________________
No. 23-11306
Non-Argument Calendar
____________________
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
SEAN S. SCOTT,
Defendant-Appellant.
____________________
Appeal from the United States District Court
for the Northern District of Florida
D.C. Docket No. 4:22-cr-00021-MW-MAF-1
____________________
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2 Opinion of the Court 23-11306
Before WILSON, LUCK, and ANDERSON, Circuit Judges.
PER CURIAM:
Sean Scott appeals his conviction for possession of a firearm
in relation to or in furtherance of a drug trafficking crime. On ap-
peal, he argues that there was insufficient evidence to establish the
requisite connection or nexus between his possession of a firearm
and his drug offense, because he legally owned the firearm for
self-protection and there was no evidence to suggest that he be-
lieved that he needed a gun during the drug deal. He also argues
on appeal that the government engaged in prosecutorial miscon-
duct by misstating the law during closing arguments and errone-
ously opening the door for the jury to misinterpret the legal stand-
ard.
I.
Where a defendant does not move the district court for a
judgment of acquittal at the close of all evidence, we will reverse
his conviction only “to prevent a manifest miscarriage of justice.”
United States v. Milkintas, 470 F.3d 1339, 1343 (11th Cir. 2006). “This
standard requires a finding that the evidence on a key element of
the offense is so tenuous that a conviction would be shocking.” Id.
(quotation marks omitted). In determining whether this standard
is met, we “must view the evidence in the light most favorable to
the government and accept all reasonable inferences and credibility
determinations that support the jury’s verdict. Id.
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23-11306 Opinion of the Court 3
The evidence will be sufficient to support a conviction if a
reasonable trier of fact could find that the evidence established the
defendant’s guilt beyond a reasonable doubt. United States v.
Jiminez, 564 F.3d 1280, 1284-85 (11th Cir. 2009). It is not enough
for a defendant to put forth a reasonable hypothesis of innocence,
because the issue is not whether the jury reasonably could have
acquitted, but whether it reasonably could have found the defend-
ant guilty. Id. at 1285. Although the evidence need not exclude
every reasonable hypothesis of innocence, we will not affirm a con-
viction predicated on “conjecture.” United States v. Toler, 144 F.3d
1423, 1433 (11th Cir. 1998). This test for sufficiency is the same,
regardless of whether the evidence is direct or circumstantial, but
where the government relied on circumstantial evidence, reasona-
ble inferences must support the conviction. United States v. Martin,
803 F.3d 581, 587 (11th Cir. 2015). “A jury’s verdict cannot be over-
turned if any reasonable construction of the evidence would have
allowed the jury to find the defendant guilty beyond a reasonable
doubt.” United States v. Watts, 896 F.3d 1245, 1251 (11th Cir. 2018)
(quotation marks omitted).
“[A] statement by a defendant, if disbelieved by the jury,
may be considered as substantive evidence of the defendant’s guilt.”
United States v. Brown, 53 F.3d 312, 314 (11th Cir. 1995) (emphasis
in original). In this context, “substantive evidence” means evi-
dence “adduced for the purpose of proving a fact in issue, as op-
posed to evidence given for the purpose of discrediting a wit-
ness . . . or of corroborating his testimony.” Id. (quotation marks
omitted). In other words, we have stated that, “when a defendant
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4 Opinion of the Court 23-11306
chooses to testify, he runs the risk that if disbelieved the jury might
conclude the opposite of his testimony is true.” Id. (quotation
marks omitted). However, a jury’s disbelief of a testifying defend-
ant cannot be used as the sole basis to support a conviction, in the
absence of other probative evidence in support thereof. United
States v. McCarrick, 294 F.3d 1286, 1293 (11th Cir. 2002). We are
“bound to follow a prior panel’s holding unless and until it is over-
ruled or undermined to the point of abrogation by an opinion of
the Supreme Court or of this Court sitting en banc.” United States
v. Gillis, 938 F.3d 1181, 1198 (11th Cir. 2019).
Section 924(c)(1)(A) of Title 18 of the U.S. Code provides for
enhanced criminal penalties for “any person who, during and in re-
lation to any crime of violence or drug trafficking crime . . . uses or
carries a firearm, or who, in furtherance of any such crime, pos-
sesses a firearm.” 18 U.S.C. § 924(c)(1)(A); United States v. Haile, 685
F.3d 1211, 1217 (11th Cir. 2012). To support a conviction under
§ 924(c)(1)(A), the government must prove either of two prongs:
the “during and in relation to . . . uses or carries” prong or the “in
furtherance of . . . possesses” prong. Haile, 685 F.3d at 1217 (quo-
tation marks omitted, alterations in original).
To sustain a conviction under the “carries” branch of the
first prong, “the government must show actual transporting of the
firearm during and in relation to the drug trafficking offense—i.e.,
that the defendant carried the firearm on his person or carried the
firearm in a vehicle used for drug distribution during and in relation
to the drug trafficking offense.” United States v. Chirinos, 112 F.3d
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23-11306 Opinion of the Court 5
1089, 1095 (11th Cir. 1997). The “in relation to” element of this
prong is expansive, and “at a minimum, [it] clarifies that the firearm
must have some purpose or effect with respect to the drug traffick-
ing crime; its presence or involvement cannot be the result of acci-
dent or coincidence.” Smith v. United States, 508 U.S. 223, 237-38
(1993). The “in relation to” element “allay[s] explicitly the concern
that a person could be punished under § 924(c)(1) for committing a
drug trafficking offense while in possession of a firearm even
though the firearm’s presence is coincidental or entirely unrelated
to the crime.” Id. at 238 (quotation marks omitted, alteration in
original). To be “in relation to” a drug trafficking offense, the fire-
arm “at least must facilitat[e], or ha[ve] the potential of facilitating,”
the offense. Id. (quotation marks omitted, alteration in original).
Additionally, the Supreme Court has stated that a firearm “merely
facilitates” a drug trafficking offense when it provides “a means of
protection or intimidation.” Id.
To support a conviction under the “in furtherance of”
prong, the government must establish that a defendant’s posses-
sion of a firearm “helped, furthered, promoted, or advanced” the
drug trafficking crime. United States v. Timmons, 283 F.3d 1246,
1252 (11th Cir. 2002). “[T]he presence of a gun within the defend-
ant’s dominion and control during a drug trafficking offense is not
sufficient by itself to sustain a § 924(c) conviction.” Id. at 1253. Ra-
ther, the government must show “some nexus between the firearm
and the drug selling operation.” Id. (quotation marks omitted).
We have articulated factors that are used to determine the presence
of a sufficient nexus between a firearm and drug trafficking:
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6 Opinion of the Court 23-11306
the type of drug activity that is being conducted, ac-
cessibility of the firearm, the type of the weapon,
whether the weapon is stolen, the status of the pos-
session (legitimate or illegal), whether the gun is
loaded, proximity to the drugs or drug profits, and the
time and circumstances under which the gun is
found.
Id. at 1253 (quoting United States v. Ceballos-Torres, 218 F.3d 409,
414-15 (5th Cir. 2000)).
We have recognized that “[t]here is a frequent and overpow-
ering connection between the use of firearms and narcotics traffic.”
United States v. Cruz, 805 F.2d 1464, 1474 (11th Cir. 1986); see also
United States v. Hromada, 49 F.3d 685, 689 (11th Cir. 1995) (“Guns .
. . go hand‑in‑hand with illegal drug operations.”); United States v.
Lopez, 649 F.3d 1222, 1242 (11th Cir. 2011) (“[A]s Forrest Gump
might say, drugs and guns go together like peas and carrots.”);
United States v. Martin, 794 F.2d 1531, 1533 (11th Cir. 1986) (describ-
ing firearms as “tools of the trade” in drug trafficking).
Here, Scott failed to renew his motion for a judgment of ac-
quittal at the close of all evidence, so his conviction may only be
reversed where necessary “to prevent a manifest miscarriage of jus-
tice.” Milkintas, 470 F.3d at 1343. Scott has failed to show that the
affirmance of his conviction under Count Two would result in a
miscarriage of justice. When reviewing all evidence in the light
most favorable to the government and drawing all reasonable in-
ferences and credibility determinations in support of the verdict,
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23-11306 Opinion of the Court 7
the evidence presented at trial is sufficient to support a finding by a
reasonable jury that Scott possessed the firearm “in relation to” or
“in furtherance of” the drug crime. Milkintas, 470 F.3d at 1343;
Watts, 896 F.3d at 1251. Scott correctly notes that § 924(c)(1)(A)
does not allow for one to be convicted when his possession of a
firearm is coincidental and entirely unrelated to the simultaneous
drug trafficking crime. Smith, 508 U.S. at 238. However, a defend-
ant’s possession of a firearm goes beyond coincidence when it pro-
vides “a means of protection or intimidation” during the perpetra-
tion of a drug crime. Id.
In Scott’s case, the evidence presented at trial, when all in-
ferences are drawn in favor of the verdict, supports a reasonable
finding that his possession of the firearm facilitated the drug deal
by providing him protection for himself, the marijuana, and the
cash that he expected to receive from Cauley. He knowingly car-
ried the firearm with him during his four-hour drive from Orlando
to Tallahassee to meet a man he had never met before, and he ex-
pressed concerns over his safety in text messages to Cauley.
While Scott testified that he owned the firearm for general
self-protection and always kept it in his vehicle when he travelled,
the jury could reasonably have found this testimony incredible and
found instead that he possessed the gun for the purpose of protect-
ing himself during the drug deal. Brown, 53 F.3d at 314. While the
purported disbelief of Scott’s testimony could not support his con-
viction on its own, the government also put forth evidence that
drug dealers are at a high risk for robbery, and evidence that Scott
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8 Opinion of the Court 23-11306
re-assembled and loaded the firearm between the first and second
traffic stops. McCarrick, 294 F.3d at 1293. Additionally, to the de-
gree that Scott argues that Brown is inapplicable to his case because
it stands for a misstatement of law, this Court is bound by the prior
panel precedent rule. Gillis, 938 F.3d at 1198. Moreover, Scott’s
argument that Brown relieves the government of its burden of
proof is unfounded, because this Court has clearly stated that
Brown does not allow for a conviction based solely on the defend-
ant’s testimony absent additional probative and relevant corrobo-
rative evidence. McCarrick, 294 F.3d at 1293. And there is ample
corroborative evidence in this case that Scott’s gun was there “in
furtherance of” the drug crime—e.g. that Scott reassembled and
loaded the weapon when (or before) he picked up the marijuana so
as to provide protection for the enhanced risk posed by the pres-
ence of $25,000 of marijuana in the car, and evidence that Scott was
concerned about his safety during the drug transaction.
As for the “in furtherance of” prong of § 924(c)(1)(A), the
government also put forth sufficient evidence to support Scott’s
conviction under the miscarriage of justice standard. Scott cor-
rectly states that the mere presence of a firearm is insufficient to
support a conviction § 924(c)(1)(A), and he argues that some of the
Timmons factors cut against a finding of a nexus between his firearm
possession and his drug crime. Timmons, 283 F.3d at 1253. How-
ever, other factors support a reasonable finding to the contrary.
Scott’s firearm was easily accessible in the center console of his ve-
hicle while he conducted a long-distance attempt to sell 20 pounds
of marijuana for $25,000. Id. The government also presented
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23-11306 Opinion of the Court 9
evidence that the firearm was loaded when it was found during the
second traffic stop, along with evidence that Scott was meeting a
man whom he had never met before and had expressed some con-
cern over his safety. Timmons, 283 F.3d at 1253. Additionally, this
Court has regularly articulated an understanding of an inherent
connection between illegal drugs and firearms. Cruz, 805 F.2d at
1474; also see Hromada, 49 F.3d at 689; Lopez, 649 F.3d at 1242; Mar-
tin, 794 F.2d at 1533. In light of the Timmons factors and precedent
of this Court, the government’s evidence was sufficient to support
a reasonable finding of a nexus between Scott’s possession of the
firearm and his drug trafficking offense. Timmons, 283 F.3d at 1253.
As for either prong of § 924(c)(1)(A), the government’s evi-
dence was not so lacking as to require “a finding that the evidence
on a key element of the offense is so tenuous that a conviction
would be shocking.” Milkintas, 470 F.3d at 1343 (quotation marks
omitted). Thus, there was sufficient evidence to support Scott’s
conviction under the “manifest miscarriage of justice standard.”
Accordingly, we affirm as to this issue.
II.
Where a defendant raises a prosecutorial misconduct claim
for the first time on appeal, we review only for plain error. United
States v. Frank, 599 F.3d 1221, 1238 (11th Cir. 2010). “Under
plain-error review, the defendant has the burden to show that there
is (1) error (2) that is plain and (3) that affect[s] substantial rights.”
United States v. Monroe, 353 F.3d 1346, 1349 (11th Cir. 2003) (quota-
tion marks omitted, alteration in original). If all three requirements
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10 Opinion of the Court 23-11306
are met, we may reverse only if the error “seriously affect[s] the
fairness, integrity, or public reputation of judicial proceedings.” Id.
(quotation marks omitted, alteration in original). An error “af-
fect[s] a substantial right of a party if [it] ha[s] a substantial influence
on the outcome of a case or leave[s] grave doubt as to whether [it]
affected the outcome of a case.” United States v. Cruickshank, 837
F.3d 1182, 1191 (11th Cir. 2016) (quotation marks omitted).
“[W]here the effect of an error on the result in the district court is
uncertain or indeterminate, the defendant has not met his burden
of demonstrating prejudice for purposes of plain error review. Id.
(quotation marks omitted).
“It is the law of this [Court] that, at least where the explicit
language of a statute or rule does not specifically resolve an issue,
there can be no plain error where there is no precedent from the
Supreme Court or this Court directly resolving it.” United States v.
Curtin, 78 F.4th 1299, 1310 (11th Cir. 2023) (quotation marks omit-
ted). “[A] close call is not enough for [an appellant] to prevail on
plain error review.” United States v. Kushmaul, 984 F.3d 1359, 1367
(11th Cir. 2021).
“To find prosecutorial misconduct, a two-element test must
be met: (1) the questions or comments must be improper, and
(2) the questions or comments must prejudicially affect the sub-
stantial rights of the defendant.” United States v. Schmitz, 634 F.3d
1247, 1267 (11th Cir. 2011). However, an error stemming from
prosecutorial misconduct is harmless “[w]hen the record contains
sufficient independent evidence of guilt.” United States v. Eckhardt,
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23-11306 Opinion of the Court 11
466 F.3d 938, 947 (11th Cir. 2006). “[A] slight misstatement of the
law by a prosecutor can be rendered harmless by the court’s proper
instructions to the jury.” United States v. Granville, 716 F.2d 819, 822
(11th Cir. 1983), on reh’g, 736 F.2d 1480 (11th Cir. 1984). To preju-
dicially affect a defendant’s substantial rights, a prosecutor’s im-
proper conduct must be “so pronounced and persistent that it per-
meate[d] the entire atmosphere of the trial.” United States v. Cooper,
926 F.3d 718, 739 (11th Cir. 2019) (quotation marks omitted, alter-
ation in original). To assess the prejudicial effect of improper state-
ments, we review them “in context.” United States v. Stefan, 784
F.2d 1093, 1100 (11th Cir. 1986).
Here, Scott has failed to prove a successful prosecutorial
misconduct claim under the plain error standard of review. The
primary statement challenged by Scott included the government’s
contention that it had presented sufficient evidence to prove that
(1) Scott possessed the firearm intentionally, and (2) the firearm
had the potential to facilitate the drug crime by providing Scott a
means of protection during his perpetration of the crime. These
statements, when viewed in proper context, are not a misstatement
of the law, but rather an accurate description of the proper legal
test for determining whether one’s possession of a firearm was “in
relation to” a drug trafficking offense. Moreover, to the degree the
government’s statements contained any minor misstatement of the
law, the court rectified them by providing jury instructions with a
correct statement of the law. Granville, 716 F.2d at 822. Addition-
ally, even if the government’s statements were an unrectified legal
error, any such error was harmless in light of the independent
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12 Opinion of the Court 23-11306
evidence establishing Scott’s guilt, as discussed previously. Scott’s
challenge to the government’s conduct concerns primarily one
statement during closing arguments, and he essentially makes no
argument that the government’s allegedly improper conduct was
“so pronounced and persistent that it permeate[d] the entire atmos-
phere of the trial.” Cooper, 926 F.3d at 739 (quotation marks omit-
ted, alteration in original). Accordingly, we affirm as to this issue.
For the foregoing reasons, the judgment of the district court
is
AFFIRMED.
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