UNITED STATES of America, Plaintiff-Appellee, v. Mario Fitzgerald PETTIFORD, Defendant-Appellant.
No. 08-4978.
United States Court of Appeals, Fourth Circuit.
Submitted: June 29, 2009. Decided: July 24, 2009.
352 Fed. Appx. 352
Before TRAXLER, Chief Judge, and NIEMEYER and DUNCAN, Circuit Judges.
Affirmed by unpublished PER CURIAM opinion.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Mаrio Fitzgerald Pettiford appeals his conviction, following a jury trial, of possession with intent to distribute 9 grams of cocaine base, in violation of
Pettiford was arrested when law enforcement officers received a report from a woman identified as “K.S.” that, while visiting Pettiford at his home, Pettiford produced a small handgun, prevented her from leaving the house, raped her, then robbed her of six one-hundred dollar bills. K.S.‘s husband was а long-time friend of Pettiford, and was in jail at the time of the incident. Police videotaped their interview of K.S. and, using the information she provided, obtained a search warrant of Pettiford‘s house, seeking evidence of the rape, robbery, and kidnapping. Pettiford was at home when the warrant was executed, in a bedroom. In the top drawer of a dresser in the bedroom in which Pettiford was located, police found a bag of crack cocaine with a net weight of 9 grams, and $298.17 in currency. In another dresser in the same bedroom, police found a fully loaded .38 caliber Taurus revolver (manufactured in Brazil), and a wallet containing $1000 in currency. Officers also found a blue duffel bag containing a full-face ski mask, black gloves, black hooded sweatshirt, black long-sleeved T-shirt, black nylon cap, and ballistic vest body armor. Following waiver of his Miranda2 rights, poliсe interviewed Pettiford, who claimed he had consensual sex with K.S., admitted possession of the firearm, possession of the crack, possession of the body armor, and acknowledged he sold drugs. Pettiford was federally indicted as set forth above. The jury convicted Pettiford on all counts.3
There is a heavy burden on а defendant in establishing the need for a Franks hearing. United States v. Jeffus, 22 F.3d 554, 558 (4th Cir.1994). A defendant must “make 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.” United States v. Colkley, 899 F.2d 297, 300 (4th Cir.1990) (quoting Franks, 438 U.S. at 155-56, 98 S.Ct. 2674). The “showing ‘must be more than conclusory’ and must be accompanied by a detailed offer of proof.” Id. (quoting Franks, 438 U.S. at 171, 98 S.Ct. 2674). Allegations should be accompanied by a statement of supporting reasons, and affidavits or sworn or otherwise reliable statements of witnesses should be furnished, or their absence satisfactorily explained. Franks, 438 U.S. at 171, 98 S.Ct. 2674.
In this case, Pettiford‘s motion to suppress contained merely the same arguments of unreliability he asserts on appeal.4 No affidavits or sworn or otherwise rеliable statements of witnesses accompanied the motion and the absence of any offer of proof was not explained, as is required under Franks. Without such preliminary showing of falsity, Pettiford failed to meet his burden to mandate a Franks hearing. Hence, the district court did not err in denying Pettiford his request for a Franks hearing, nor did it err in denying his motion to supprеss the evidence obtained from the search warrant.
Nor do we find merit to Pettiford‘s challenge to the district court‘s denial of his Rule 29 motion for judgment of acquittal relativе to Counts One and Two of the indictment. We review de novo a district court‘s denial of a motion for a judgment of acquittal. United States v. Alerre, 430 F.3d 681, 693 (4th Cir.2005). In conducting such a review, we are obliged to sustain a guilty verdict if, viewing the evidence in the light most favorable to the prosecution, the verdict is supported by substantial evidence. United States v. Burgos, 94 F.3d 849, 862 (4th Cir.1996) (en banc) (citing Glasser v. United States, 315 U.S. 60, 80, 62 S.Ct. 457, 86 L.Ed. 680 (1942)). We have “defined ‘substantial evi-
To establish guilt on Count One, possession with intent to distribute a controlled substance, the Government must have proven, beyond а reasonable doubt, that Pettiford: (1) knowingly; (2) possessed a controlled substance; (3) with the intent to distribute it. United States v. Burgos, 94 F.3d 849, 873 (4th Cir.1996). The discovery of the crack cocaine and money by police, together with Pettiford‘s statements, in response to police questioning as to whether he sold drugs, that he “hustle[d] a little bit” and that he obtained body armor by trading drugs for the item, plus the failure to discover any evidence of personal use of crack cocaine in Pettiford‘s house, was circumstantial evidence which amply supportеd the jury‘s determination that Pettiford possessed the crack cocaine with the intent to distribute it.
To establish guilt on Count Two, the Government was required to prove that “possession of a firearm furthered, advanced, or helped forward a drug trafficking crime.” United States v. Lomax, 293 F.3d 701, 705 (4th Cir.2002). Factors upon which a fact-finder may conclude that a firearm was used in furtherance of a drug trafficking activity include the type of drug activity that is being conducted, accessibility of the firearm, the type of weapon, whether the weapon is stolеn, whether the weapon is legitimately or illegally possessed, whether the gun is loaded, proximity of the firearm to drugs or drug profits, and the time and circumstances under which the gun is found. Id.
In this case, we find that the evidence of Pettiford‘s illegal possession of a loaded handgun, in a holster for wear on the person, found in a drawer with his wallet in the same room as Pettiford, crack cocaine, and a large amount of cash, together with his admission of drug-selling, is sufficient, when viewed in the light most favorable to the Government,5 to support the jury‘s conclusion that Pettiford possessed the firearm in furtherance of a drug trafficking crime. Thus, the district court did not err in denying Pettiford‘s Rule 29 motion relative to Counts One and Two of the indictment.
Accordingly, we affirm Pettiford‘s conviction and sentence. We dispense with oral argument because the facts and legal contentions are аdequately presented in the materials before the court and argument would not aid the decisional process.
AFFIRMED.