                                                           NOT PRECEDENTIAL

                       UNITED STATES COURT OF APPEALS
                            FOR THE THIRD CIRCUIT


                                       No. 09-1564


                           UNITED STATES OF AMERICA

                                            v.

                               CLARENCE MITCHELL,

                                                      Appellant.


                    On Appeal from the United States District Court
                               for the District of Delaware
                             (D.C. No. 1-08-cr-00023-001)
                      District Judge: Honorable Sue L. Robinson


                     Submitted Under Third Circuit L.A.R. 34.1(a),
                                  October 30, 2009

          Before: SLOVITER, FUENTES, and HARDIMAN, Circuit Judges.

                            (Opinion Filed: October 30, 2009)



                               OPINION OF THE COURT



FUENTES, Circuit Judge:

       Appellant Clarence Mitchell was convicted of, inter alia, possession with intent to

distribute cocaine and possession of a firearm in furtherance of drug trafficking. Before
his trial, he filed a motion to suppress evidence recovered during a search of North

Franklin Place in Wilmington, Delaware, a residence owned by his wife, and the

statements that he made to police following the search. Upon review of the affidavit and

application for a search warrant, the District Court denied the motion, holding that the

detectives acted in good faith in relying on the warrant. At trial, following the close of

the government’s evidence, Mitchell moved for a judgment of acquittal on the possession

of a firearm in furtherance of drug trafficking count. The District Court reserved

judgment, and the jury subsequently returned a guilty verdict. After the verdict, Mitchell

renewed his motion for acquittal, which was denied by the District Court. On appeal,

Mitchell challenges the denial of his suppression and acquittal motions. For the reasons

that follow, we will affirm the District Court.1

                                              I.

       Because we write primarily for the parties, we only discuss the facts and



       1
         The District Court had jurisdiction pursuant to 18 U.S.C. § 3231. This Court has
jurisdiction pursuant to 28 U.S.C. § 1291. “[W]hen a district court, in reviewing a
magistrate’s determination of probable cause, bases its probable cause ruling on facts
contained in an affidavit, we exercise plenary review over the district court’s decision.”
United States v. Ritter, 416 F.3d 256, 261 (3d Cir. 2005) (citation omitted). Both our
court and the district court review the magistrate’s initial probable cause determination
deferentially. Id. Our review of a district court’s conclusion regarding the applicability
of the good faith exception is plenary. United States v. Hodge, 246 F.3d 301, 307 (3d
Cir. 2001) (citations omitted). “We exercise plenary review over a district court’s grant
or denial of a motion for acquittal based on the sufficiency of the evidence, applying the
same standard as the district court.” United States v. Silveus, 542 F.3d 993, 1002 (3d
Cir. 2008) (citation omitted).

                                             -2-
proceedings to the extent necessary for the resolution of the case.

       Wilmington Police Department (“WPD”) Detectives Todd Riley and Robert

Cunningham conducted a ten-week undercover investigation of appellant Clarence

Mitchell. On five separate occasions, an informant made controlled purchases of crack

cocaine from Mitchell. Following each purchase, members of WPD covertly tailed

Mitchell in an effort to establish his residence. After the first purchase, the officers lost

Mitchell. During the second purchase, Mitchell was driving a blue Jeep Cherokee, which

was registered to Mitchell’s mother at her residence. The officers conducted surveillance

at this residence; Mitchell was never observed there, although another vehicle that he

operated, a blue Ford Taurus, was seen at this location. After the second purchase, the

officers tailed Mitchell to a bar.

       After the third controlled purchase, officers followed Mitchell to a barber shop,

where he remained for approximately twenty minutes. Mitchell then drove the blue Jeep

Cherokee to the residence at North Franklin Place, where he stayed for approximately

twenty minutes before departing. When officers returned to this location two hours later,

the blue Jeep Cherokee was parked on the same block as the residence, which was owned

by, Mitchell’s wife.2 During subsequent surveillance at this address, officers observed

Mitchell arrive at the residence in the blue Ford Taurus that had been seen at Mitchell’s


       2
         The record does not indicate that police knew that the house was owned by
Mitchell’s wife at the time of their surveillance or of their application for the challenged
warrant.

                                              -3-
mother’s residence. Mitchell entered the residence, stayed for a short time, then exited

and drove towards center-city Wilmington. Mitchell drove the same Ford Taurus to the

fourth controlled purchase. After the purchase, police terminated surveillance of Mitchell

when he entered the center-city area.

       For the fifth controlled purchase, the officers had the informant call Mitchell, order

drugs, and arrange a meeting spot. Surveillance officers then observed Mitchell exit a

barber shop, drive to North Franklin Place, enter the residence, remain inside for five

minutes, exit the residence, and drive to meet the informant. After the purchase, officers

followed Mitchell back to the barber shop. During the investigation, officers also

conducted surveillance at Mitchell’s last known residence, but at no time during the

investigation was Mitchell or any of the vehicles he operated during the controlled

purchases observed at this address.

       After the fifth controlled purchase, Detectives Riley and Cunningham applied for a

search warrant for the residence at North Franklin Place. Based on an affidavit detailing

the investigation, a Judge of the Justice of the Peace Court # 20 for the State of Delaware

found that the detectives had probable cause to search North Franklin Place and issued a

search warrant. On December 27, 2007, the detectives executed the search warrant and

recovered approximately 4.5 ounces of cocaine; drug packing paraphernalia, including

three plastic bags with a white powdery residue and small plastic bags commonly used for

packaging crack cocaine; approximately $6,415 in cash; and, underneath the mattress, a


                                            -4-
loaded .357 Sig Sauer firearm. Thereafter, Mitchell was indicted for being a felon in

possession of a firearm, in violation of 18 U.S.C. §§ 922(g)(1) and 924 (a)(2) (Count 1);

possession with intent to distribute cocaine, in violation of 21 U.S.C. § 841(a)(1) and

(b)(1)(c) (Count 2); and possession of a firearm in furtherance of a drug trafficking

crime, in violation of 18 U.S.C. § 924(c)(1)(A) and (c)(2) (Count 3).

       Mitchell filed an Amended Motion to Suppress Evidence and Statements,

challenging the search of North Franklin Place and the admissibility of his subsequent

statements to the police. On July 30, 2008, the District Court denied Mitchell’s

suppression motion in a Memorandum Order. In ruling on the suppression motion, the

District Court did not reach the issue of whether the judicial officer who issued the search

warrant had a substantial basis for finding probable cause. Instead, the Court ruled that

the good faith exception of United States v. Leon, 468 U.S. 897 (1984), applied as “it

was objectively reasonable for the detectives to rely on the Justice of the Peace Court’s

determination that probable cause existed when they searched Franklin Place.” (App.

18.)

       The District Court conducted a jury trial on Counts 2 and 3 of the Indictment.

After the close of the government’s evidence, Mitchell made a motion for judgment of

acquittal on Count 3, the § 924(c) count, pursuant to Federal Rule of Criminal Procedure

29 (“Rule 29”). The Court reserved judgment on the motion. After the jury found

Mitchell guilty of Counts 2 and 3, Mitchell renewed his Rule 29 motion, which the


                                            -5-
District Court denied. The Court then accepted Mitchell’s guilty plea to Count 1.

Subsequently, the District Court sentenced Mitchell to 24 months’ imprisonment on

Counts 1 and 2, to be served concurrently, and 60 months’ imprisonment on Count 3, to

be served consecutively.

       On appeal, Mitchell challenges the denial of his suppression and Rule 29 motions.

With respect to the suppression motion, he argues that the detectives did not have

probable cause to search North Franklin Place and that the Leon good-faith exception

was inapplicable. With respect to the Rule 29 motion, he contends that the evidence at

trial was insufficient to prove that he knowingly possessed a firearm in furtherance of a

drug trafficking crime.

                                             II.

       In an extensive written opinion ruling on Mitchell’s motion to suppress, the

District Court carefully and thoroughly considered the contentions that the parties raise in

this appeal. After a complete review of the record, including the detectives’ affidavit and

application for a search warrant, and the parties’ arguments, we find no basis for

disturbing the District Court’s ruling. Therefore, we will affirm the denial of Mitchell’s

motion to suppress for the reasons set forth by the District Court in its written opinion.

See United States v. Mitchell, No. 08-cr-23, 2008 WL 2942142 (D. Del. July 30, 2008).

       In reviewing the grant or denial of a Rule 29 motion, we exercise plenary review

and independently apply the same standard as the district court. Silveus, 542 F.3d at


                                             -6-
1002. That standard of review is deferential, “viewing ‘the record in the light most

favorable to the prosecution to determine whether any rational trier of fact could have

found proof of guilt beyond a reasonable doubt based on the available evidence.’” Id.

(quoting United States v. Smith, 294 F.3d 473, 476 (3d Cir. 2002)) (further citation

omitted). “A finding of insufficiency [of the evidence] should ‘be confined to cases

where the prosecution’s failure is clear.’” Smith, 294 F.3d at 476 (quoting United States

v. Leon, 739 F.2d 885, 891 (3d Cir. 1984)).

       When a defendant moves for a judgment of acquittal at the close of the

government’s case and the district court reserves decision on the motion, the district court

must “determine whether an acquittal was appropriate based solely on the evidence

presented by the government.” United States v. Brodie, 403 F.3d 123, 133 (3d Cir. 2005)

(citing Fed. R. Crim. P. 29(b)). We are “similarly limited” and will “examine only . . . the

evidence presented in the government’s case, which includes evidence elicited on cross-

examination of the government’s witnesses, but not evidence presented in the defense

case.” Id. at 133–34 (internal quotation marks & citations omitted). Specifically, we will

not consider the testimony of Mitchell’s wife and Pearl A. Ponzo who testified for the

defense.

       The essential elements of knowing possession of a firearm in furtherance of a drug

trafficking crime, in violation of 18 U.S.C. § 924(c) are: (1) the defendant committed the

crime of possession with intent to distribute a controlled substance; (2) the defendant


                                              -7-
knowingly possessed a firearm; and (3) the defendant knowingly possessed the firearm in

furtherance of the crime of possession with intent to distribute. United States v. Bobb,

471 F.3d 491, 496 (3d Cir. 2006). Mitchell argues that the government’s evidence was

insufficient to prove the third element—that he possessed the gun in furtherance of a

drug trafficking crime. To establish the third element, “the ‘mere presence’ of a gun is

not enough. . . . [T]he evidence must demonstrate that possession of the firearm advanced

or helped forward a drug trafficking crime.” United States v. Sparrow, 371 F.3d 851, 853

(3d Cir. 2004) (citations omitted). In making this assessment, we consider the following

nonexclusive factors:

       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.

Id. (quoting United States v. Ceballos-Torres, 218 F.3d 409, 414–15 (5th Cir. 2000)).

       The record in the instant case demonstrates that many of the Ceballos-Torres

factors are satisfied. A Sig Sauer .357 is a semiautomatic handgun, which, according to

Detective Cunningham, can be concealed on a person. Mitchell, as a prior felon, could

not lawfully possess a firearm. Moreover, at trial the government presented evidence that

the firearm was stolen and that Mitchell bought it “on the street.” (Gov’t Ex. 5, Clip 2.)

The gun was found, loaded, under the mattress in the bedroom at North Franklin Place,

where it was easily accessible. During the same search, police retrieved approximately


                                             -8-
$6,415 in cash from the house and approximately 4.5 ounces of cocaine from the garage

in the rear yard. Mitchell stated that he bought the gun “[b]ecause [he] was kind of scared

. . . because jokers was shooting jokers. They were running up on the block and robbing

people . . . . They catch the jokers going in their house and robbing them . . . .” (App.

330.) Based on this evidence, a rational juror could reasonably find that Mitchell

possessed the firearm to protect the drugs and drug proceeds located at North Franklin

Place, a type of possession that “furthers, advances, or helps forward” drug trafficking.3

Ceballos-Torres, 218 F.3d at 415.

                                             IV.

       For the foregoing reasons, we affirm the District Court’s denial of Mitchell’s

motion to suppress and the denial of his Rule 29 motion for judgment of acquittal.




       3
         The government also argues that the evidence was sufficient for a rational juror
to find that Mitchell brought the firearm with him for protection while he engaged in
drug sales. In light of our conclusion that the evidence was sufficient to support a
finding that Mitchell possessed the gun to protect his drug and drug proceeds, we see no
need to rule on the government’s alternative argument.

                                             -9-
