United States v. Askew

98 F.4th 116

UNITED STATES of America, Plaintiff - Appellee v. Jerod Montrel ASKEW, Defendant - Appellant.

No. 23-4222

United States Court of Appeals, Fourth Circuit

Argued: January 26, 2024

Decided: April 10, 2024

Appeal from the United States District Court for the Eastern District of Virginia, at Norfolk. Rebecca Beach Smith, Senior District Judge. (2:21-cr-00008-RBS-DEM-1)

ARGUED: Robert James Wagner, ROBERT J. WAGNER PLC, Richmond, Virginia, for Appellant. Jacqueline Romy Bechara, OFFICE OF THE UNITED STATES ATTORNEY, Alexandria, Virginia, for Appellee. ON BRIEF: Jessica D. Aber, United States Attorney, Aidan Taft Grano-Mickelsen, Assistant United States Attorney, Matthew Heck, Assistant United States Attorney, OFFICE OF THE UNITED STATES ATTORNEY, Richmond, Virginia, for Appellee.

Before WILKINSON, NIEMEYER, and BENJAMIN, Circuit Judges.

Affirmed by published opinion. Judge Wilkinson wrote the opinion, in which Judge Niemeyer and Judge Benjamin joined.

WILKINSON, Circuit Judge:

Following a jury trial, Jerod Montrel Askew was convicted of various crimes related to drug trafficking, including two counts of possession of a firearm in furtherance of a drug trafficking crime in violation of 18 U.S.C. § 924(c). He now appeals his convictions on various grounds. First, he asserts that the jury instructions for the firearm-related charges were erroneous and prejudicial. Second, he contends that the evidence was insufficient to support a guilty verdict for the firearm-related convictions. Next, he claims that the district court abused its discretion in offering a sua sponte jury instruction about the legality of the search warrants underpinning the investigation. Finally, he argues that the district court abused its discretion in denying his motion for a mistrial after the prosecution referred to his invocation of the right to counsel during closing arguments. After carefully reviewing each claim, we affirm Askew's conviction.

I.

A.

Law enforcement began investigating Askew for suspected drug trafficking in early 2020. Police first employed visual and electronic surveillance, tracking Askew to the turf of known narcotics distributors. Based on the information gleaned from surveillance, the police obtained search warrants for Askew's vehicle and apartment. With the warrants secured, police pulled Askew over while he was driving his Jeep and prompted their K-9 detection dog to sniff the car. The dog alerted to the center console, inside of which officers discovered a loaded firearm and a crumpled, empty plastic baggie. Askew told the police that "there was probably marijuana in it earlier." J.A. 305. Police recovered the firearm, the baggie, and two cellphones from the vehicle.

While the traffic stop was ongoing, a different squad of officers executed the search warrant at Askew's apartment. By all indications, the apartment appeared to be the nerve center for a drug trafficking enterprise. There police found a noteworthy collection of drugs and drug paraphernalia: copious quantities of heroin, cocaine, and marijuana, in addition to packaging supplies, cutting materials, scales, sifters, and blending equipment. Police also discovered six firearms, some of them loaded; over $11,000 in cash hidden in a trashcan; multiple cellphones; and a storage unit rental agreement in Askew's name. Upon these findings, Askew was placed under arrest and transported to the storage unit listed on the rental agreement, accompanied by a new search warrant for that property.

The storage unit contained more investigatory fruits. Law enforcement discovered multiple bags of marijuana, as well as various tools which could be used to package and distribute the drug, including a kilo press form, a sifter, and cutting agents. There were also various baggies containing cocaine residue. Within a safe, police found more marijuana, cash, a loaded firearm, and firearm magazines. All of this evidence would be collected and used by the government in its case-in-chief in the trial to come.

B.

Askew ultimately proceeded to trial on eight charges, including one count of conspiracy to distribute narcotics in violation of 21 U.S.C. §§ 841, 846; five counts of possession with intent to distribute in violation of 21 U.S.C. § 841; and two counts of possession of a firearm in furtherance of a drug trafficking crime in violation of 18 U.S.C. § 924(c).¹ Along with the physical evidence recovered from Askew's apartment and storage unit, the prosecution presented evidence from the cellphones found in Askew's vehicle. Data extractions revealed several text conversations between Askew and his contacts in the drug industry, where they discussed selling and trading narcotics and firearms. Two of the firearms discussed in these text conversations matched the descriptions of those recovered from the searches. The prosecution also discussed its electronic surveillance of Askew and testified that his patterns of movement were consistent with drug dealing. Additionally, the prosecution offered a police detective as an expert witness in drug distribution and firearms, who testified that firearms are considered "a tool of the trade" in drug trafficking, "not only to protect yourself from robbery but also to protect the assets." J.A. 590.

After a three-day trial, the jury returned verdicts of guilty on all counts. Askew moved for a new trial as well as for a judgment of acquittal, both of which the district court denied. He was sentenced to a total term of 198 months of imprisonment and five years of supervised release. Askew timely appealed.

II.

A.

Askew first claims that the jury instructions for his firearm-related charges were worded in such a way as to compel the jury to find him guilty. We begin by recounting what the jury was told about the firearm-related charges.

Askew's convictions were for possession of a firearm in furtherance of a drug trafficking crime, in violation of 18 U.S.C. § 924(c). The court informed the jury that the government had to prove three elements beyond a reasonable doubt in order to sustain its burden of proof on this charge: (1) that Askew "committed the drug trafficking crime of possession with intent to distribute"; (2) that he "knowingly possessed a firearm"; and (3) that his "possession of a firearm was in furtherance of the commission of a drug trafficking crime." J.A. 765. It is this third element, the "in-furtherance-of" element, at issue in this appeal.

The court defined the relevant terms of this element as follows: "The word 'possess' means to own or to exert control over something." J.A. 766. "The term 'knowingly' . . . means that he was conscious and aware of his actions, realized what he was doing or what was happening around him, and he did not act because of ignorance, mistake, or accident." J.A. 742. And the phrase " '[i]n furtherance of' means the act of furthering, advancing, or helping forward," meaning "the government must prove that the possession of a firearm furthered, advanced, or helped forward the drug trafficking crime." J.A. 767.

The court then discussed how the jury could reach the conclusion that the firearms were used in furtherance of the drug trafficking crimes:

For drug trafficking crimes, factors that the jury may consider in making the determination include the following: The type of drug activity that was being conducted, the accessibility of the firearm, the type of firearm, whether the firearm was stolen, the status of the possession, whether it was legitimate or illegal, whether the firearm was loaded, the proximity of the firearm to either drugs or drug profits, the time and circumstances under which the firearm was found, whether the firearm provided a defense against the theft of drugs and/or reduced the probability that such theft might be attempted. The possession is in furtherance if the purpose of the firearm is to protect or embolden the defendant.

Distribution of drugs and the common sense recognition that drug dealing is a dangerous and violent enterprise may support an inference that the defendant's possession of a firearm was to facilitate drug dealing.

J.A. 767-78.

Askew challenges the last paragraph of these instructions. He argues that this portion of the charge compelled the jury to find that "a gun found in the presence of drugs will necessarily be connected to the violence inherent in drug dealing" and thus conclude that "the mere presence of firearms in the general vicinity of controlled substances" satisfied the in-furtherance-of element. Appellant's Opening Br. 29-31.

We disagree. When reviewing the propriety of jury instructions, we inquire "whether the instructions construed as a whole, and in light of the whole record, adequately informed the jury of the controlling legal principles without misleading or confusing the jury to the prejudice of the objecting party." Noel v. Artson, 641 F.3d 580, 586 (4th Cir. 2011). Further, "we accept at the outset the well-established proposition that a single instruction to a jury may not be judged in artificial isolation, but must be viewed in the context of the overall charge." Cupp v. Naughten, 414 U.S. 141, 146-47, 94 S.Ct. 396, 38 L.Ed.2d 368 (1973). Such an approach "recognize[s] that a judgment of conviction is commonly the culmination of a trial which includes the testimony of witnesses, argument of counsel, receipt of exhibits in evidence, and instruction of the jury by the judge." Id. at 147, 94 S.Ct. 396. In other words, "not only is the challenged instruction but one of many such instructions, but the process of instruction itself is but one of several components of the trial which may result in the judgment of conviction." Id.

Here, the jury was repeatedly informed that it needed to find that the firearms furthered, advanced, or helped forward the drug trafficking counts, in precise conformity with the way this court has interpreted the in-furtherance-of element. See United States v. Lomax, 293 F.3d 701, 705 (4th Cir. 2002). The jurors were...