United States v. Givens , 314 F. App'x 706 ( 2009 )

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
March 13, 2009
No. 08-50321
Summary Calendar Charles R. Fulbruge III
Clerk
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
KEITH BERNARD GIVENS,
Defendant-Appellant.
Appeal from the United States District Court
for the Western District of Texas
No. 7:07-CR-198-1
Before SMITH, STEWART, and SOUTHWICK, Circuit Judges.
PER CURIAM:*
Keith Givens appeals his conviction of possession of a firearm in further-
ance of a drug-trafficking crime. He argues that the evidence is insufficient to
*
Pursuant to 5TH CIR . R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .
R. 47.5.4.
No. 08-50321
support his conviction. Givens moved for a judgment of acquittal at the close of
the government’s case; because he did not present any evidence in his defense,
he was not required to renew his motion after he rested. See United States v.
Resio-Trejo, 45 F.3d 907, 911 n.6 (5th Cir. 1995). Therefore, review is de novo.
See United States v. Ferguson, 211 F.3d 878, 882 (5th Cir. 2000).
A rational trier of fact could have found that the evidence established be-
yond a reasonable doubt that Givens possessed the firearm in furtherance of
drug-trafficking activity. See United States v. Ceballos-Torres, 218 F.3d 409, 411
(5th Cir.), amended on other grounds, 226 F.3d 651 (5th Cir. 2000). The parties
stipulated that Givens had entered guilty pleas to counts one through four,
which established that Givens had committed drug-trafficking offenses.
A confidential informant told police that Givens was distributing cocaine
base and assisted officers in making two controlled buys of cocaine base from
Givens. Officers followed Givens to his residence after the controlled buys, then
obtained a search warrant for Givens’s residence. During the search, officers
found the firearm, cocaine base in several locations, marihuana in the refrigera-
tor and in a car parked in the garage, a digital scale, and $866 in currency. The
firearm was found in a kitchen cabinet; although the firearm was not loaded, a
magazine containing ammunition was found next to it. A swab test of the fire-
arm revealed that it had cocaine residue.
In the kitchen, officers also found cocaine base, hidden in a false compart-
ment in a food can, and a digital scale. Givens’ codefendant and girlfriend,
Christina Nguyen, testified that she had seen the firearm in a laundry basket
and in a kitchen drawer after Givens moved into the residence. Nguyen testified
that she had observed Givens cooking crack cocaine in the kitchen and that he
sold drugs and did not work during the time he lived with her. In a statement
to police, Givens admitted that the firearm belonged to him and that he pos-
sessed it for protection.
The jury could have reasonably found that the firearm was easily access-
2
No. 08-50321
ible to Givens and that the close proximity of the firearm and ammunition to co-
caine base and a digital scale found in the kitchen indicates that the firearm was
used to protect the drugs. A rational trier of fact could have found that the evi-
dence established beyond a reasonable doubt that Givens possessed the firearm
in furtherance of drug-trafficking activity. See Ceballos-Torres, 218 F.3d at 411.
Givens argues that the district court abused its discretion in denying his
motion for disclosure of the confidential informant’s identity. He urges that the
informant could have provided exculpatory evidence relevant to whether Givens
possessed a firearm in furtherance of drug-trafficking activity on the dates of the
controlled buys. Because Givens pleaded guilty to counts one through four in-
volving the drug transactions, the informant’s testimony was not necessary to
convict Givens of these drug offenses. Further, the parties stipulated at trial, on
the firearms offense, that Givens had entered guilty pleas to counts one through
four. There is no evidence that Givens possessed a firearm on the dates of the
controlled drug transactions involving the informant.
Givens’s argument is speculative; he has not shown that the informant
could have provided evidence concerning the firearm offense that would have
been helpful to the defense. Further, the government had a interest in the non-
disclosure of the informant, who was assisting in other investigations. There-
fore, Givens has not shown that the district court abused its discretion in deny-
ing his request for disclosure of the informant’s identity. See United States v.
Sanchez, 988 F. 2d 1384, 1391 (5th Cir. 1993).
Givens contends that the district court erred in denying his motion to dis-
qualify the jury panel. He says that the panel did not represent a fair cross sec-
tion of the community, because blacks are a distinct group; there were no black
members in the venire from which the jury was chosen; and there was no explan-
ation for the exclusion. Givens has not established a prima facie case, because
he has not produced any evidence of systematic exclusion in the jury selection
process, see Duren v. Missouri, 439 U.S. 357, 364 (1979), and he relies solely on
3
No. 08-50321
the composition of the panel at his own trial, see United States v. Williams, 264
F.3d 561, 568 (5th Cir. 2001); Timmel v. Phillips, 799 F.2d 1083, 1086 (5th Cir.
1986).
AFFIRMED.
4