                     United States Court of Appeals
                            FOR THE EIGHTH CIRCUIT
                                   ___________

                                   No. 08-2414
                                   ___________

United States of America,               *
                                        *
             Appellee,                  *
                                        * Appeal from the United States
     v.                                 * District Court for the
                                        * Southern District of Iowa.
Ontario Rush-Richardson,                *
                                        *
             Appellant.                 *
                                   ___________

                             Submitted: March 13, 2009
                                Filed: July 9, 2009
                                 ___________

Before WOLLMAN, RILEY, and COLLOTON, Circuit Judges.
                           ___________

RILEY, Circuit Judge.

       A federal grand jury indicted Ontario Rush-Richardson (Rush-Richardson) for
possession with intent to distribute cocaine base (crack cocaine), and possession of
firearms in furtherance of drug trafficking. After pleading guilty to the drug charge,
Rush-Richardson proceeded to trial on the firearms charge. During trial, the district
court overruled Rush-Richardson’s motions for judgment of acquittal and his
objection to the jury instructions. The jury convicted Rush-Richardson on the
firearms charge. At sentencing, the district court denied Rush-Richardson a
downward adjustment based on acceptance of responsibility for the drug charge.
Rush-Richardson now appeals the district court’s rulings and his sentence. We
reverse based on the district court’s jury instructions.

I.    BACKGROUND
      On August 19, 2007, Davenport, Iowa, police officers administered a controlled
buy of crack cocaine from Rush-Richardson. The officers then obtained and executed
a search warrant for Rush-Richardson’s house. During the search, officers found
crack cocaine, marijuana, other drug related items, and three firearms.

      On September 12, 2007, a federal grand jury returned an indictment charging
Rush-Richardson with (1) possession with intent to distribute at least 50 grams of a
mixture or substance containing crack cocaine, in violation of 18 U.S.C. §§ 841(a)(1)
and 841(b)(1)(A); (2) possession of firearms in furtherance of a drug trafficking
crime, in violation of 18 U.S.C. § 924(c); and (3) forfeiture under 21 U.S.C. § 853.

       Rush-Richardson pled guilty to the drug charge in count one of the indictment,
and proceeded to trial on the firearms charge of count two. Rush-Richardson moved
for judgment of acquittal at the close of the government’s evidence and again at the
close of all evidence. The district court denied both motions. Before the jury was
instructed, Rush-Richardson’s counsel objected to Jury Instruction number 5
(Instruction 5), which was based on Eighth Circuit Model Criminal Jury Instruction
6.18.924C. The district court overruled the objection, and instructed the jury using
Instruction 5. During deliberations, the jury sent a note to the district court asking,
“#5 - can you please rephrase or elaborate on page 6 #5 regarding ‘possessed in
furtherance of[.]’ Can we get some clarification on the language? Thank you.” The
district court asked the jury for a more specific question, and the jury returned a note
stating, “No clarification is needed.” The jury then convicted Rush-Richardson on
count two, and in a special interrogatory, found Rush-Richardson possessed all three
firearms seized from his home in furtherance of drug trafficking.



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       Following Rush-Richardson’s conviction, a presentence investigation report
(PSR) calculated an advisory United States Sentencing Guidelines (U.S.S.G. or
Guidelines) range of 135 to 168 months imprisonment on the drug charge, and a
mandatory consecutive 60-month sentence on the firearms charge. The PSR also
recommended denying Rush-Richardson a two-level downward adjustment under
U.S.S.G. § 3E1.1(a) for acceptance of responsibility on the drug charge. At
sentencing, Rush-Richardson argued he was entitled to the downward adjustment.
The district court denied the downward adjustment and sentenced Rush-Richardson
to the bottom of Rush-Richardson’s advisory Guidelines range on the drug charge,
135 months imprisonment, and a consecutive mandatory minimum 60-month sentence
on the firearms charge. This appeal follows.

II.    DISCUSSION
       Rush-Richardson argues the district court: (1) erred in overruling Rush-
Richardson’s motions for judgment of acquittal; (2) erroneously overruled Rush-
Richardson’s objection to Instruction 5; and (3) improperly denied Rush-Richardson
a two-level downward adjustment for acceptance of responsibility on the drug charge.
Because we conclude Rush-Richardson’s conviction should be reversed based on
Instruction 5, we address that argument first.

       A.     Jury Instruction
       Rush-Richardson contends the district court erred in overruling his objection
to Instruction 5 because the definition of “possession in furtherance of” in Instruction
5 misstated the law. Rush-Richardson maintains Instruction 5 erroneously defined
“possession in furtherance of” with the language of the lower standard of “during and
in relation to.” Thus, Rush-Richardson asserts the district court’s submission of
Instruction 5 was both an abuse of discretion and plain error.

       “Generally, we review jury instructions for abuse of discretion,” and will affirm
the district court if the instructions, as a whole, sufficiently submit the issues to the

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jury. United States v. Farish, 535 F.3d 815, 821 (8th Cir. 2008) (citations omitted).
Rush-Richardson’s counsel objected to Instruction 5, arguing its definition of
“possession in furtherance of” was inconsistent, contradictory, and confusing.
However, Rush-Richardson’s counsel did not argue Instruction 5 misstated the law.1
Thus, we review Instruction 5 for plain error. See United States v. Kent, 531 F.3d
642, 655 (8th Cir. 2008) (reviewing an 18 U.S.C. § 924(c) jury instruction under plain
error review because the defendant failed to object on the specific ground appealed);
United States v. Young, 702 F.2d 133, 136 (8th Cir. 1983) (stating, an objection to a
jury instruction is waived unless made “in a timely and specific manner”). Plain error
review requires Rush-Richardson to show (1) an error, (2) that was “plain,”
(3) “affects substantial rights,” and (4) “the error seriously affects the fairness,
integrity or public reputation of judicial proceedings.” United States v. Olano, 507
U.S. 725, 735-36 (1993) (internal marks and citations omitted).

       Under 18 U.S.C. § 924(c), a defendant is subject to a consecutive mandatory
minimum 5-year sentence if he or she (1) used or carried a firearm “during and in
relation to” a crime of violence or drug trafficking crime, or (2) possessed a firearm
“in furtherance of” a crime of violence or drug trafficking crime. See United States
v. Brown, 560 F.3d 754, 766-67 (8th Cir. 2009). Rush-Richardson was charged with
possessing firearms in furtherance of a drug trafficking crime. Instruction 5 provided
the jury with the elements of § 924(c) and defined “possession in furtherance of” as,

             With respect to the second element, the phrase “possessed in
      furtherance of” means that the firearm must have some purpose or effect
      with respect to the aforementioned possession of crack cocaine with
      intent to distribute. Its presence or involvement cannot be the result of
      accident or coincidence. The firearm must facilitate or have the potential
      to facilitate the offense of possession with intent to distribute crack
      cocaine.


      1
       At oral argument, Rush-Richardson’s counsel conceded he did not argue
Instruction 5 misstated the law.

                                         -4-
       The district court’s submission of Instruction 5 was plain error. In Kent, 531
F.3d at 654-55, we analyzed the exact language of Instruction 5, and held it was plain
error to give this instruction for the “possession in furtherance of” offense of § 924(c).
We reasoned the definition of “possession in furtherance of” given in Instruction 5 is
almost identical to the Supreme Court’s definition of “in relation to.” Id. at 654. We
noted our case law has “determined that ‘in furtherance of’ is a slightly higher level
of participation than ‘during and in relation to.’” Id. at 655 (citing United States v.
Gamboa, 439 F.3d 796, 810 (8th Cir. 2006)). Thus, the instruction constitutes plain
error because it “would allow the jury to convict on the lesser finding of ‘in relation
to.’” Kent, 531 F.3d at 655; see also Brown, 560 F.3d at 767-68.

       Instruction 5 also affected Rush-Richardson’s substantial rights. “In order to
affect substantial rights, the error must have been prejudicial.” Kent, 531 F.3d at 655-
56 (citing Olano, 507 U.S. at 734; United States v. Dominguez Benitez, 542 U.S. 74,
83 (2004)). “An error is prejudicial if the defendant shows ‘a reasonable probability
that, but for [the error claimed], the result of the proceeding would have been
different.’” Id. at 656 (quoting Dominguez Benitez, 542 U.S. at 82). “The
defendant’s burden is to ‘satisfy the judgment of the reviewing court, informed by the
entire record, that the probability of a different result is sufficient to undermine
confidence in the outcome of the proceeding.’” Id. (quoting Dominguez Benitez, 542
U.S. at 83) (internal marks omitted).

        In Kent, 531 F.3d at 647, the defendant was charged with two counts of
possession of a firearm in furtherance of a drug trafficking crime. The first count
involved a firearm and crack cocaine found on the defendant during an arrest. Id. The
second count involved a firearm, cash, and crack cocaine found in the defendant’s
girlfriend’s bedroom. Id. We did not determine whether the defendant’s substantial
rights were affected. Id. at 656. We held the fourth plain error requirement was not
met because the defendant did not argue in the district court or on appeal that the jury


                                           -5-
instruction misstated the law. Id. at 656-57. However, we did state the evidence
created “a close question” whether the defendant’s substantial rights were affected.
Id. at 656.

       Subsequently, in Brown, 560 F.3d at 762, 766, 767-68, we analyzed a jury
instruction which was used for a charge that alleged the defendant used, carried, and
possessed a firearm during and in relation to a conspiracy to distribute marijuana.
Because the government only presented evidence that the defendant possessed the
firearm, and did not present any evidence that the defendant carried or used the
firearm, we held the defendant’s substantial rights had been affected. Id. at 767-68.
We stated, “By allowing the jury to convict based on possession of a firearm merely
‘in relation to’ the drug conspiracy, instead of in furtherance of that conspiracy, the
instructions likely affected the verdict on [the firearm charge].” Id. at 768.

       In this case, the jury was given an improper instruction defining the elements
of the § 924(c) offense with which Rush-Richardson was charged, and the jury was
allowed to convict Rush-Richardson of the possession offense based on the lower
“during and in relation to” standard. See Kent, 531 F.3d at 655. There is a reasonable
probability this error affected Rush-Richardson’s verdict. Brown, 560 F.3d at 768.
The jury found Rush-Richardson possessed the firearms. But the evidence was close
to support the lesser “during and in relation to” standard, indicating the slightly higher
level of proof for “in furtherance of” a drug trafficking offense would even be more
difficult to support.

       The jury was presented with evidence contradicting the government’s theory
that Rush-Richardson possessed the firearms “in furtherance of” crack cocaine
distribution. The government presented no definitive evidence of Rush-Richardson’s
fingerprints on, or physical evidence connecting Rush-Richardson to, the firearms.
One fingerprint was discovered on one firearm, and that fingerprint was not Rush-
Richardson’s. The firearms also were found in different rooms than the measurable

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quantities of drugs. The crack cocaine was found in Rush-Richardson’s bedroom, and
the marijuana was found in the living room. One firearm was discovered in a diaper
bag in a closet in the bedroom next to Rush-Richardson’s bedroom, and the other two
firearms were found inside a plastic grocery sack on top of the kitchen cabinets. This
evidence reasonably questions whether there was a sufficient “in furtherance” nexus
between the firearms and the crack cocaine distribution. See United States v.
Sanchez-Garcia, 461 F.3d 939, 946-47 (8th Cir. 2006) (explaining, to establish a
conviction for possession of a firearm in furtherance of a drug crime, “the government
must present evidence from which a reasonable juror could find a ‘nexus’ between the
defendant’s possession of the charged firearm and the drug crime, such that this
possession had the effect of ‘furthering, advancing or helping forward,’ the drug
crime;” and, “the jury must be able to infer that the defendant’s possession of the
firearm facilitated the drug crime, through evidence that the firearm was used for
protection, was kept near the drugs, or was in close proximity to the defendant during
drug transactions” (citations omitted)).

       The evidence here is relatively weaker to support a conviction “in furtherance
of” compared to the evidence presented in Kent, where we said the evidence presented
a “close question” whether substantial rights had been violated. See Kent, 531 F.3d
642-43 (describing crack cocaine and loaded firearm in defendant’s pockets, as well
as cocaine, cash, and loaded firearm in defendant’s bedroom). Thus, although “in
furtherance of” is only a slightly higher standard than “during and in relation to,” we
are convinced, in light of our statement in Kent and our holding in Brown, the
evidence in Rush-Richardson’s case suggests Rush-Richardson’s substantial rights
were affected, and this suggestion tends to undermine our confidence in the jury’s
verdict.

      The proceedings also amplified the effect of Instruction 5 on Rush-Richardson’s
substantial rights. The jury’s attention was drawn specifically to the definition of
“possession in furtherance of” found in Instruction 5. During closing argument, one

                                         -7-
of the government’s first points was to note the importance of the definition. The
government then recited the definition to the jury and argued that portions of the
definition “make[] sense” because the firearm “must have the potential to facilitate the
offense of possession with intent to distribute crack cocaine.” (Emphasis added).

       During deliberations, the jury was apparently initially confused by, or had some
concern with, the erroneous definition, because the jury’s first note to the district court
specifically asked for clarification or elaboration on the definition. Although the jury
eventually withdrew its clarification request, the government’s closing argument and
the jury’s first note imply the erroneous definition in Instruction 5 was influential to,
and a closely scrutinized part of, the jury’s verdict. See Francis v. Franklin, 471 U.S.
307, 324 n.9 (1985) (“The Court presumes that jurors, conscious of the gravity of their
task, attend closely the particular language of the trial court’s instructions in a criminal
case and strive to understand, make sense of, and follow the instructions given
them.”).

       Thus, because (1) the jury was given a plainly erroneous jury instruction, (2) the
evidence created a close question whether the firearms were possessed “in furtherance
of” drug trafficking, (3) in closing arguments, the jury’s attention was drawn
specifically to the improper definition in Instruction 5, and (4) the jury was focused
upon and confused by, or concerned with, the erroneous definition in Instruction 5,
Rush-Richardson has presented a reasonable probability that, but for the jury being
given the erroneous Instruction 5, the jury verdict would have been different.

       Finally, because the jury was given an erroneous jury instruction in a close case,
which instruction was highlighted by the government in closing argument and was
unclear to the jury, the fairness and integrity of Rush-Richardson’s trial was seriously
affected by Instruction 5. See Brown, 560 F.3d at 768 (holding the fairness of a
defendant’s trial was seriously affected when the § 924(c) jury instruction was
erroneous, there was no evidence of the charged crime, and the government’s closing

                                            -8-
argument “exacerbated the error”). We conclude the district court committed plain
error in giving Instruction 5, and Rush-Richardson’s conviction on count two of the
indictment should be reversed and vacated. See id. at 772.

       B.    Sufficiency of the Evidence and Downward Adjustment
       Because we reverse Rush-Richardson’s conviction on count two based on
Instruction 5, we need not address Rush-Richardson’s arguments regarding the
sufficiency of the evidence and downward adjustment.

III.   CONCLUSION
       Rush-Richardson’s conviction on count two of the indictment is reversed and
vacated, and the case is remanded to the district court for proceedings consistent with
this opinion.

COLLOTON, Circuit Judge, concurring.

       I concur in the judgment remanding for a new trial, in view of our court’s
decisions in United States v. Brown, 560 F.3d 754 (8th Cir. 2009), and United States
v. Kent, 531 F.3d 642 (8th Cir. 2008). Given the location of the firearms and
ammunition seized in Rush-Richardson’s residence, this was a reasonably close case
on whether the government established proof beyond a reasonable doubt under a jury
instruction that called for a verdict on what was the equivalent of possession “during
and in relation to” drug trafficking. If a comparable instruction created a “close”
question under the third prong of plain error analysis on the evidence in Kent, 531
F.3d at 656, and crossed the threshold in Brown – where a revolver, ammunition,
scale, $16,000 cash, and small amount of marijuana were seized from a vehicle owned
by the defendant and a semi-automatic rifle, ammunition, and 35 pounds of marijuana
were seized from a storage unit leased by a co-conspirator, 560 F.3d at 761, 767-68
– then it seems to follow that Rush-Richardson’s substantial rights were affected by
the instruction in this case. Our cases might have gone in a different direction on the

                                         -9-
substantial rights prong of plain error analysis, given the narrow circumstances in
which it appears that a firearm would be possessed “during and in relation to” drug
trafficking but not “in furtherance” of drug trafficking, see United States v. Combs,
369 F.3d 925, 933 (6th Cir. 2004), but I ultimately agree with the disposition of this
case in light of Brown and Kent.

        I add two observations. First, while the court cites the prosecutor’s statement
in final argument that a firearm possessed “in furtherance” of drug trafficking “must
have the potential to facilitate the offense of possession with intent to distribute crack
cocaine,” ante, at 8, the court does not hold that this argument misstated the law under
18 U.S.C. § 924(c). To the contrary, in Kent, we specifically rejected the defendant’s
argument that this same language – “[t]he firearm must . . . have the potential to
facilitate the offense of possession with intent to distribute crack cocaine” –
incorrectly defined the “in furtherance” element of § 924(c). 531 F.3d at 654. The
court explained that “‘in furtherance of’ is not a factual requirement that the firearm
advance the crime, but rather a requirement that the person possess the gun with the
intent of advancing the crime.” Id. Nothing in this decision calls into question the
conclusion in Kent that § 924(c) “authorizes conviction where the defendant intended
the firearm to advance or further the crime, but it did not actually do so.” Id.

       Our cases explain that the first two sentences of the “in furtherance” instruction
given in Rush-Richardson’s case, see ante, at 4, not the third sentence, misstate the
law under § 924(c). See Brown, 560 F.3d at 767 (“The instructions incorrectly
defined ‘possession in furtherance of’ to mean that ‘the firearm must have some
purpose of effect with respect to the [drug trafficking crime]; its presence or
involvement cannot be the result of accident or coincidence.’”); Kent, 531 F.3d at 654-
55. The prosecutor in this case did emphasize the first two sentences of the instruction
during final argument, immediately before making the statement quoted by the court.
T. Tr. 229. Therefore, I agree that “in closing arguments, the jury’s attention was
drawn specifically to the improper definition in Instruction 5.” Ante, at 8.

                                          -10-
       Second, the opinion in this case suggests that the absence of Rush-Richardson’s
fingerprints on the firearms, or physical evidence connecting him to the firearms,
“contradict[ed]” the government’s theory that Rush-Richardson possessed the firearms
“in furtherance of” drug trafficking, ante, at 6-7, but never explains why this is so.
The evidence at trial was that investigators found no fingerprints on the exterior of any
of the three firearms. One fingerprint was found underneath the hand grips on one
firearm after the hand grips were removed from the weapon during the fingerprinting
process. The examiner testified that this fingerprint could have been left during the
manufacturing process, or by the last person who removed the grips. When asked
about the lack of fingerprints on the exterior of the guns, the examiner explained that
there is a “very low success rate” in “finding identifiable fingerprints on firearms,” for
“several reasons, including the way a manufacturer designs a firearm, especially a
handgun.” He testified that the surface of a firearm grip is “not suitable for leaving
good latent fingerprints,” and that other areas that a person normally would touch
while operating a gun are “checkered” and “multisurfaced,” rather than a “smooth,
nice, easy surface” on which a person “would leave a consistent, nice fingerprint.”
He further explained that latent prints are usually very fragile, and that other surfaces,
such as a pocket, a waistband, or a gun case lined with cloth, would damage the prints
when making contact with the firearm. T. Tr. 172-75.

       The absence of fingerprints could support an argument that there was
reasonable doubt about whether Rush-Richardson possessed the firearms, although
the examiner’s unchallenged testimony in this case suggests that any inference drawn
from the fingerprint evidence is weak, and Rush-Richardson did not even argue the
point to the jury. In any event, the jury in this case found that Rush-Richardson did
possess the guns, and the error in the jury instruction had no effect on its finding of
possession. The lack of fingerprints or physical evidence is relevant on this appeal
only if it tends to show that Rush-Richardson did possess the firearms “during and in
relation to” drug trafficking, but did not possess them “in furtherance of” drug
trafficking. There might be hypothetical scenarios in which this is so – such as where

                                          -11-
a drug trafficking defendant posits that a firearm was inadvertently left behind at his
home by a drug buyer, see Combs, 369 F.3d at 933 – but this case was tried on the
theory that Rush-Richardson possessed the firearms for protection of his drug
trafficking activity, and the principal defense was that Rush-Richardson did not even
know about the guns. Given that the jury found knowing possession by Rush-
Richardson under a proper instruction, the absence of fingerprints and physical
evidence does not in my view materially advance Rush-Richardson’s showing that the
mistaken jury instruction affected his substantial rights on the “in furtherance”
element. Nothing in this decision, moreover, undermines our precedent that
fingerprint evidence is unnecessary to support a finding of possession of a firearm in
furtherance of drug trafficking. See United States v. Stevens, 439 F.3d 983, 990 (8th
Cir. 2006).
                         ______________________________




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