In United States v. Irons, --- F.4th ---, No. 20-30056 (9th Cir. 2022), the Court majority affirmed the defendant’s convictions on charges of conspiracy to distribute fentanyl (21 U.S.C. § 846) and possession of fentanyl with intent to distribute (21 U.S.C. §§ 841(a)(1), 841(b)(1)(B)(vi)); reversed his conviction on a charge of possession of a firearm in furtherance of that drug trafficking (18 U.S.C. § 924(c)); and remanded for a new trial on the § 924(c) charge.
The opinion focuses on the 924(c) instructions. After a lengthy discussion of whether Irons preserved his objection, the panel vacated the conviction on plain-error review. [Note: this case is a good reminder of how important it is to make specific objections to jury instructions.]
The Court concluded that, in considering whether an error is plain, Henderson v. United States, 568 U.S. 266 (2013), requires it to assess the question with the benefit of hindsight. In other words, even if the error was not plain at the time the district court ruled, it can still be plain. And with the advantage of hindsight, the Court concluded that the district court’s error was “plain.”
A “conviction for possession of a firearm ‘in furtherance of’ a drug trafficking offense or crime of violence under § 924(c) requires proof that the defendant possessed the weapon to promote or facilitate the underlying crime.” A simple connection to the underlying crime is not enough.
Also of note: "Irons contends that the district court improperly admitted Detective James’ expert testimony concerning certain general practices of drug traffickers without assessing the reliability of the opinions that he would express."
[A] district court “necessarily abuses its discretion[] when it makes no reliability findings,” which are required to satisfy its “gatekeeping duty” for determining the admissibility of expert testimony under Federal Rule of Evidence 702. We have further stated that “[a]n implicit reliability finding is not sufficient” and that “the court must make an explicit reliability finding.”
