    Case: 16-10819     Document: 00514287986    Page: 1   Date Filed: 12/28/2017




          IN THE UNITED STATES COURT OF APPEALS
                   FOR THE FIFTH CIRCUIT
                                                                 United States Court of Appeals
                                                                          Fifth Circuit
                                 No. 16-10819                           FILED
                                                                 December 28, 2017
                                                                   Lyle W. Cayce
                                                                        Clerk

UNITED STATES OF AMERICA,

                                           Plaintiff–Appellee,

versus

SHANNON DALE SMITH,

                                           Defendant–Appellant.




                 Appeal from the United States District Court
                      for the Northern District of Texas




Before SMITH, OWEN, and HIGGINSON, Circuit Judges.
JERRY E. SMITH, Circuit Judge:

      Shannon Smith pleaded guilty of interstate communications with intent
to extort in violation of 18 U.S.C. § 875(b). A jury found him guilty of posses-
sion of firearms in furtherance of a crime of violence (“COV”), 18 U.S.C.
§ 924(c).   He appeals the district court’s inclusion of the government’s re-
quested jury instruction and challenges the sufficiency of the evidence. We
affirm.
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                                 No. 16-10819
                                       I.
      Smith decided to extort money from the Boardmans, a local wealthy
family. Smith called Boardman, told Boardman he was being watched, and
directed him to a note on his door, instructing him to place $525,000 in cash or
gold coins in a duffel bag and await further instructions. The note warned that
Boardman, his wife, and his granddaughter were being watched and that
someone would be taken should he try to contact the police. Boardman in-
formed his friend, a retired state trooper, who contacted law enforcement.

      Two days later, Smith called again, graphically threatening Boardman’s
granddaughter. That evening, Smith made two more threatening phone calls.
Later, during the fourth call of the day, Smith directed Boardman to leave the
duffel bag filled with money on the east side of a barn. The final call confirmed
that Boardman had received the instructions and threatened that “there would
be hell to pay” should there be a GPS tracker or a dye pack in the bag.

      That evening, officers drove Boardman’s car to the drop site and placed
the duffel bag at the barn per Smith’s instructions. Six officers patrolled the
area while others conducted aerial surveillance. Smith approached the barn
in his vehicle and, exiting with his fourteen-year-old son, shined a spotlight in
the area of the drop location, whereupon the officers arrested them.

      Smith informed the officers that he was armed, and they found a Glock,
Model 23, .40 caliber semi-automatic pistol on his person. A Rock River Arms
.223 caliber semi-automatic rifle and a Ruger .22 caliber rifle were in Smith’s
truck. Although Smith told the officers he was hunting coyotes and an owl
with his son, he later confessed to the extortion and that he was at the barn to
see whether Boardman had left the money. He stated, however, that his son
did not know of the extortion and that he did not plan to retrieve the bag at
that time.

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                                     No. 16-10819
      A federal indictment charged Smith under 18 U.S.C. § 875(b) for making
threatening interstate communications with the intent to extort (Count One)
and under 18 U.S.C. § 924(c) for possession of a firearm in furtherance of a
COV (Count Two). Smith pleaded guilty to Count One and proceeded to trial
on Count Two. After the government’s case in chief, the court denied Smith’s
motion for judgment of acquittal under Federal Rule of Criminal Procedure
29(a) that claimed there was no evidence demonstrating the firearms were
used in furtherance of the extortion.

      Smith presented evidence that he frequently carried the Glock when he
left the house and that he used it for personal protection, not for hunting. He
did not renew his motion for acquittal at the close of all the evidence.

      The prosecution requested that a sentence be added to the end of the
Fifth Circuit pattern jury instruction stating, “It is not necessary to prove that
the defendant intended to possess the firearm in furtherance of the defendant’s
commission of the crime charged in Count One.” The prosecution stated that
that would clarify that the scienter requirement was knowledge, not intent.
Smith objected that the government must show specific intent that the
weapons further the crime, but the court included the sentence. The jury found
Smith guilty on Count Two.

                                          II.
      The court charged the jury using the Fifth Circuit pattern jury instruc-
tion with the government’s requested additional sentence. To prove the pos-
session was “in furtherance,” the instructions directed the jury that “the gov-
ernment must prove that the defendant possessed a firearm that furthers,
advances, or helps forward the crime of violence.” 1 That was followed by the


      1   FIFTH CIRCUIT PATTERN CRIMINAL JURY INSTRUCTIONS § 2.44 (2015).
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                                    No. 16-10819
government’s requested sentence: “It is not necessary to prove that the defen-
dant intended to possess the firearm in furtherance of the [COV].”

      Although we have upheld the pattern instructions as a correct statement
of the law, 2 Smith objected, stating that a defendant must have the specific
intent that the firearm further the crime and that the government’s addition
made the possession offense a strict-liability crime. The government counters
that § 924(c) requires a mens rea of knowing possession with an evidentiary
nexus requirement that the firearm further the crime and that the govern-
ment’s proffered sentence clarified that requirement.

      Though we find that the addition unnecessarily confused the issue and
should not have been included, it did not ultimately misstate the law and is
therefore not reversible error. We reaffirm our interpretation of § 924(c) that
possession in furtherance is a possession that furthers, advances, or helps for-
ward a COV or drug-trafficking crime.            United States v. Ceballos-Torres,
218 F.3d 409, 412−15 (5th Cir. 2000). We emphasize, however, that an addi-
tional sentence or other statement such as the one at issue here should not be
used in this circuit.

                                           A.
      The court generally reviews jury instructions for an abuse of discretion,
United States v. Kay, 513 F.3d 432, 446 (5th Cir. 2007), but where a challenge
to an instruction rests on grounds of statutory interpretation, our review is
de novo, United States v. Stanford, 823 F.3d 814, 828 (5th Cir.), cert. denied,
137 S. Ct. 453 (2016). Because the parties dispute the mens rea requirement
in § 924(c), de novo review is proper.



      2United States v. Harris, 740 F.3d 956, 965 & n.5 (5th Cir. 2014); United States v.
Yanez-Sosa, 513 F.3d 194, 203−04 (5th Cir. 2008).
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                                  No. 16-10819
                                       B.
      The statute does not answer the question of the requisite mental state.
It reads in relevant part,
   Except to the extent that a greater minimum sentence is otherwise pro-
   vided by this subsection or by any other provision of law, any person
   who, during and in relation to any crime of violence or drug trafficking
   crime . . . uses or carries a firearm, or who, in furtherance of any such
   crime, possesses a firearm, shall, in addition to the punishment pro-
   vided for such crime of violence or drug trafficking crime—be sentenced
   to a term of imprisonment of not less than 5 years.
18 U.S.C. § 924(c)(1)(A) (emphasis added)

      In 1998, Congress amended § 924 to include the crime of possession-in-
furtherance.   In Ceballos-Torres, this circuit was the first to address the
amended language. Though it does not specifically address what mental state
the statute requires, Ceballos-Torres answers the present dispute. It inter-
preted possession-in-furtherance to determine the scope of possessions the
statute criminalized. To determine what conduct the statute encompassed, we
looked to the dictionary definition of “furthered,” to canons of construction, and
to the House Report accompanying the 1998 amendment. Ceballos-Torres,
218 F.3d at 412−15.

      The court held that the “mere presence” of a firearm at a crime scene is
not enough to support a conviction. Id. at 414. Rather, there must be “evidence
more specific to the particular defendant, showing that his or her possession
actually furthered the [crime].” Id. (emphasis added). In other words, the mens
rea is more than strict liability, such that “a drug dealer whose only firearms
are unloaded antiques mounted on the wall does not possess those firearms ‘in
furtherance’” of his crime. Id. at 415. But the “something more” that the court
required to establish liability was not a defendant’s intent regarding the
weapon. Instead, “firearm possession that furthers, advances, or helps forward

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                                  No. 16-10819
the [offense] violates the statute.” Id. Thus the court looked for an evidentiary
link establishing the firearm’s actual effect on the crime.

      The court’s application of this standard to the facts elucidates the requi-
site mental state. In Ceballos-Torres, officers went to the defendant’s apart-
ment to conduct an immigration check. While in the bedroom, they noticed a
handgun on the bed. Using a subsequent search warrant, they found cocaine
in the closet along with other evidence of drug dealing. Id. at 411. The court
found that evidence sufficient to establish that the weapon furthered the drug
crime because it was loaded and easily accessible, was possessed illegally, and
was kept near a “substantial amount of drugs and money.” Id. at 415. The
gun “protected [the] drugs and money against robbery.” Id.

      To determine actual furtherance, the court laid out several factors that
it deemed helpful, but not exclusive, to distinguish innocent from criminal pos-
session: “the type of drug activity . . ., accessibility of the firearm, the type of
weapon, whether the weapon is stolen, the status of 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.” Id. at 414–15. Though
Ceballos-Torres involved a drug-trafficking crime instead of a COV, the analy-
sis regarding what constitutes possession-in-furtherance is the same.

      Significant for Smith’s case is Ceballos-Torres’s application of “in fur-
therance” as an evaluation of various circumstantial factors to answer the
factual question of whether the weapon actually advanced the crime. See id.
at 412. At no point did the court examine the defendant’s intended use for the
weapon.    Rather, it approached the question of furtherance with a multi-
factorial evidentiary approach. This supports the conclusion that the require-
ment is knowing possession with a nexus linking the defendant and the


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                                      No. 16-10819
firearm to the offense. Now we reaffirm that approach. 3

                                            III.
       Smith uses two arguments to question the sufficiency of the evidence.
The first is that the crime of extortion was already complete when he went to
pick up the money. At that time, all threats had been communicated; thus all
elements of § 875(b) had been satisfied, and firearms could not have furthered
an already completed offense. The second is the contingent claim that, even if
the crime were continuing, there was insufficient evidence that the firearms
furthered the extortion.

                                            A.
       Smith did not preserve his sufficiency challenge. After moving for judg-
ment of acquittal at the close of the government’s evidence, he failed to renew
his motion at the close of all the evidence, so we apply plain-error review,
requiring satisfaction of four prongs:
    First, there must be an error or defect . . . . Second, the legal error must
    be clear or obvious, rather than subject to reasonable dispute. Third,
    the error must have affected the appellant’s substantial rights, which
    in the ordinary case means he must demonstrate that it “affected the
    outcome of the district court proceedings.” Fourth and finally, if the
    above three prongs are satisfied, the court of appeals has the discretion
    to remedy the error—discretion which ought to be exercised only if the
    error “seriously affect[s] the fairness, integrity or public reputation of
    judicial proceedings.”
United States v. Delgado, 672 F.3d 320, 329 (5th Cir. 2012) (en banc) (quoting
Puckett v. United States, 556 U.S. 129 (2009)). Where, as here, the sufficiency


       3 See Harris, 740 F.3d at 964–65; United States v. Rose, 587 F.3d 695, 702 (5th Cir.
2009) (finding possession in furtherance satisfied when a firearm “furthers, advances, or
helps forward” the offense and reiterating the Ceballos-Torres factors the court should con-
sider in making its determination); United States v. McGilberry, 480 F.3d 326, 330 (5th Cir.
2007) (“[M]ere possession is criminal only when it furthers or advances the drug trafficking
offense.”).
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                                        No. 16-10819
claim is unpreserved, the second prong is satisfied only if there is a “manifest
miscarriage of justice,” id. at 331, which occurs only where “the record is devoid
of evidence pointing to guilt” or the evidence is so tenuous that a conviction
would be “shocking,” id. at 330−31.

                                               B.
       Extortion may continue until receipt of the payment. Although the ele-
ments of extortion were complete upon transmission of the threats, that does
not mean the crime was complete for purposes of furtherance. The crime of
robbery offers an example. Robbery “does not necessarily begin or end at the
front doors of the bank” but can include the escape. 4 In Pate, the court affirmed
a conviction of using or carrying a firearm in furtherance of robbery under
§ 924(c) even though the defendant did not carry the weapon into the bank but
had it in the vehicle upon his escape. See Pate, 932 F.2d at 738. These cases
demonstrate that liability does not necessarily end upon the satisfaction of the
last element required for indictment.

                                               C.
       Smith’s contingent sufficiency claim fails, because the record is not
“devoid of evidence.” Smith contends that the record does not show that he
had the specific intent to use the firearms to further the crime. As discussed
above, however, a showing of specific intent is not required. Rather, the statute
requires that the firearm “actually furthered” the COV.                     Ceballos-Torres,
218 F.3d at 414.

       To aid the jury in discerning actual furtherance, Ceballos-Torres laid out
the above-mentioned eight factors examining the circumstances surrounding



       4 United States v. Pate, 932 F.2d 736, 738 (8th Cir. 1991); see also United States v.
Willis, 559 F.2d 443, 444 (5th Cir. 1977) (holding that the escape phase is part of the robbery).
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                                     No. 16-10819
the firearm, the defendant, and the crime.              Because this is not a drug-
trafficking case, the circumstantial evidence is a bit different, but the factors
are still helpful. The gun was loaded, was on Smith’s person, was not a gun he
used to hunt, and was being carried as he approached the drop location. These
are the types of factors that allow a jury to infer that a firearm is possessed for
protection of the profits of the crime. 5 The hunting rifles provided Smith a
cover story to hide the crime from his son and law enforcement. Thus the rec-
ord is not devoid of evidence upon which a jury could have relied to find Smith
guilty under § 924(c).

      The key in determining whether a firearm furthered the crime is ensur-
ing that the evidence distinguishes coincidental or unrelated possession from
possession that furthers the crime. See id. at 415. The government’s evidence
fits that description. The prosecution presented specific facts linking Smith to
the firearms and the firearms to the extortion. It was not plain error for the
jury to find Smith guilty of possession of firearms in furtherance of the crime
of extortion.

      AFFIRMED.




      5 See, e.g., United States v. Mackey, 265 F.3d 457, 462–63 (6th Cir. 2001) (using the
Ceballos-Torres factors to distinguish possession in furtherance from innocent possession
such as a “wall-mounted antique or an unloaded hunting rifle locked in a cupboard”).
                                            9
