                                                                                                                           Opinions of the United
2005 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


11-2-2005

USA v. Taliaferro
Precedential or Non-Precedential: Non-Precedential

Docket No. 05-1288




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                                                                   NOT PRECEDENTIAL

                       UNITED STATES COURT OF APPEALS
                            FOR THE THIRD CIRCUIT
                                 ____________

                                       No. 05-1288
                                      ____________

                            UNITED STATES OF AMERICA

                                             v.

                               CLIFFORD TALIAFERRO,

                                            Appellant
                                      ____________

                     On Appeal from the United States District Court
                        for the Eastern District of Pennsylvania
                                (D.C. No. 03-cr-00733-1)
                       District Judge: Honorable John P. Fullam
                                     ____________

                       Submitted Under Third Circuit LAR 34.1(a)
                                   October 27, 2005

           Before: SLOVITER, FISHER and GREENBERG, Circuit Judges.

                                (Filed: November 2, 2005)
                                      ____________

                               OPINION OF THE COURT
                                    ____________

FISHER, Circuit Judge.

       Clifford Taliaferro appeals his conviction and sentence under 18 U.S.C. § 924(c) –

possession of a firearm in furtherance of a drug trafficking crime. Taliaferro argues that

there was insufficient evidence to support his conviction. We believe that the case of
United States v. Sparrow, 371 F.3d 851 (3d Cir. 2004), is controlling, and therefore we

will affirm Taliaferro’s conviction.

                                             I.

       As we write only for the parties, we set forth only those facts necessary to our

analysis. After receiving a tip from a confidential informant, officers of the Philadelphia

Police Department began an investigation of a drug organization being operated on the

4900 block of Catherine Street in Philadelphia. According to the confidential informant,

Clifford Taliaferro was the supplier for the suspected drug ring. After additional

investigation, the officers obtained a search warrant for Taliaferro’s residence. On May

21, 2003, the police stopped Taliaferro’s vehicle after he left his residence, and seized

cocaine with a net weight of approximately 189 grams.1

       Officers subsequently executed the search warrant for Taliaferro’s residence.

After being advised of and waiving his rights, Taliaferro directed police to a box on the

upper shelf of a bedroom closet. This box contained over one kilogram of cocaine and

drug paraphernalia. In addition, two semi-automatic pistols and an AK-47 semi-

automatic assault rifle were found in the closet in close proximity to the box containing

the one kilogram of cocaine. Police also discovered an additional two kilograms of


       1
        During the search of the vehicle, police also seized a fully loaded Sig Sauer .45
caliber semi-automatic pistol. This firearm formed the basis for Count 11 of the 12-count
indictment returned against Taliaferro and his co-conspirators. The District Court granted
the defendant’s pretrial motion to suppress evidence concerning the seizure of this
weapon.

                                              2
cocaine in a corner of the bedroom. This larger amount of cocaine was concealed in a

pile of men’s clothing.

       On October 29, 2003, a 12-count indictment was returned against Clifford

Taliaferro and others involved in the drug organization, charging them with conspiracy to

distribute more than five grams of cocaine base (“crack”) and 500 grams or more of

cocaine, in violation of 21 U.S.C. § 846 (Count 1). Taliaferro was also charged with

possession with intent to distribute more than 500 grams of cocaine, in violation of 21

U.S.C. § 841(a)(1) (Count 9); possession with intent to distribute cocaine, in violation of

21 U.S.C. § 841(a)(1) (Count 10); and possession of firearms in furtherance of a drug

trafficking felony, in violation of 18 U.S.C. § 924(c) (Counts 11 and 12).

       On July 16, 2004, Taliaferro was found guilty by a jury on Counts 1, 9, and 12.

The jury found Taliaferro not guilty on Count 10.2 On January 20, 2005, Taliaferro was

sentenced to an aggregate term of 120 months imprisonment,3 four years supervised

release, and a $300 special assessment.4 This timely appeal followed.



       2
        As a result of a pretrial ruling to suppress the evidence with respect to Count 11,
that count was not before the jury.
       3
       The District Court imposed a 60 month sentence for the conspiracy conviction and
a consecutive mandatory sentence of 60 months for the conviction of Possession of
Firearms in Furtherance of Drug Trafficking Felony.
       4
        The judgment of conviction originally included an erroneous order to forfeit
identified property seized from Taliaferro at the time of his arrest. On January 31, 2005,
the District Court entered an amended order imposing the same sentence, but omitting the
erroneous order to forfeit the seized property.

                                             3
                                             II.

       Taliaferro appeals his conviction at Count 12, alleging that there was insufficient

evidence presented at trial to conclude that the seized firearms were possessed “in

furtherance of” a drug crime pursuant to 18 U.S.C. § 924(c).

       In reviewing a sufficiency of the evidence claim, we examine the “totality of the

evidence, both direct and circumstantial,” and must credit “all available inferences in

favor of the government.” United States v. Gambone, 314 F.3d 163, 170 (3d Cir. 2003)

(citations omitted), cert. denied, 540 U.S. 815 (2003). We will sustain the verdict if “any

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

reasonable doubt. Thus, a claim of insufficiency of the evidence places a very heavy

burden on an appellant.” United States v. Dent, 149 F.3d 180, 187 (3d Cir. 1998)

(citations omitted).

                                            III.

       The Government contends that United States v. Sparrow controls this case.

Although Sparrow was before this Court in a different procedural context,5 the case

considered the precise issue in question here – whether there was sufficient evidence that




       5
        Sparrow involved an appeal from a denial of a habeas petition. The petition was
based on an allegation of ineffective assistance of counsel. The alleged ineffectiveness
was failing to advise Sparrow that there was allegedly insufficient evidence to support an
18 U.S.C. 924(c) charge prior to Sparrow pleading guilty to that charge. We held that
there was sufficient evidence to support that charge, and therefore affirmed the district
court’s denial of Sparrow’s habeas petition. Sparrow, 371 F.3d. at 854.

                                             4
a firearm was possessed in furtherance of a drug crime to support a conviction under 18

U.S.C. § 924(c). Under Section 924(c), the mere presence of a gun is insufficient to

establish the “in furtherance” element. “What is instead required is evidence more

specific to the particular defendant, showing that his or her possession actually furthered

the drug trafficking offense.” Sparrow, 371 F.3d at 853 (quoting United States v.

Ceballos-Torres, 218 F.3d 409, 414 (5th Cir. 2000)).

       Sparrow listed certain nonexclusive factors that are relevant in making a

determination of whether a firearm was possessed in furtherance of a drug crime. Those

factors are:

       the type of drug activity that is being conducted, accessibility of the firearm,
       the type of the 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.

Sparrow, 371 F.3d at 853 (quoting Ceballos-Torres, 218 F.3d at 414-15). The

Government does not need to prove all of these factors to support a Section 924(c)

indictment – they are only a guide. See id.

       In Sparrow, we noted that many of the Ceballos-Torres factors were satisfied. As

a convicted felon, Sparrow was not permitted to possess a firearm; the firearm was

loaded; the weapon was kept in the same floor compartment as the illegal drugs; and even

though the firearm was not easily accessible, it was strategically located. Therefore, we




                                              5
concluded that it was reasonable to assume that the firearm was possessed in furtherance

of Sparrow’s drug activities. Id. at 854.

       Taliaferro, however, argues that Sparrow is distinguishable for several reasons.

The first and most important challenge to the applicability of Sparrow is Taliaferro’s

argument that the evidence does not establish that the firearms were discovered in the

same place as the drugs. This argument is foreclosed by the testimony of Officer

Liciardello. Officer Liciardello testified that the firearms and the box containing the

cocaine were seized from the same bedroom closet. Officer Liciardello also testified that

the firearms and the box were both on a shelf within the closet. Crediting all available

inferences in favor of the Government, Gambone, 314 F.3d 170, there is sufficient

evidence to conclude that the drugs and firearms were discovered in close proximity to

each other.

       Taliaferro also argues that Sparrow is distinguishable because the firearms seized

from his closet were not loaded. Taliaferro and his girlfriend both testified that they

never kept the guns loaded because a child lived with them. Officer Liciardello testified,

however, that all three firearms were loaded when they were discovered. Once again, we

must credit all available inferences in favor of the Government. Gambone, 314 F.3d 170.

Based on Officer Liaciardello’s testimony, there is sufficient evidence to conclude that

the guns were loaded when they were discovered.




                                             6
       In addition, Taliaferro asserts that we relied in Sparrow on the fact that the gun

was found in the place where Sparrow routinely sold drugs. Taliaferro argues that since

he did not sell drugs in his bedroom, Sparrow is inapplicable. In Sparrow, however, we

did not specifically rely on the fact that the gun was found where drugs were sold.

Instead, we relied heavily on the fact that the drugs and the gun were found together, i.e.,

that the gun was “strategically located” with the drugs. The logic of Sparrow applies with

equal force to Taliaferro’s case, where the firearms were strategically located in his

bedroom closet adjacent to his stash of cocaine.

       Finally, Taliaferro argues that Sparrow is distinguishable because unlike Sparrow,

Taliaferro had a valid license to possess and carry a firearm. The fact that Sparrow

possessed the gun illegally was a minor consideration in Sparrow, and this distinction

does not render Sparrow inapplicable to this case. The fact that a defendant possessed a

firearm pursuant to a valid license or permit does not in any way preclude a finding that

the firearm was possessed in furtherance of a drug trafficking crime.

       This case is identical to Sparrow in all important and relative aspects. Sparrow,

thus, controls the outcome of this case.

       Viewing the totality of the evidence and crediting all available inferences in favor

of the Government, we find, based on our holding in Sparrow, that there is sufficient

evidence to conclude that Taliaferro possessed the firearms at issue in Count 12 in

furtherance of a drug trafficking offense.



                                             7
      As Taliaferro’s conviction under 18 U.S.C. § 924(c) is supported by sufficient

evidence, we will affirm the judgment of conviction and sentence.




                                           8
