United States v. Swafford ( 2004 )

RECOMMENDED FOR FULL-TEXT PUBLICATION
Pursuant to Sixth Circuit Rule 206 2 United States v. Swafford No. 03-5468
ELECTRONIC CITATION: 2004 FED App. 0336P (6th Cir.)
File Name: 04a0336p.06 UNITED STATES ATTORNEY, Chattanooga, Tennessee,
for Appellee.
UNITED STATES COURT OF APPEALS GIBBONS, J., delivered the opinion of the court, in which
KEITH, J., joined. CLAY, J. (pp. 11-12), delivered a separate
FOR THE SIXTH CIRCUIT concurring opinion.
_________________
_________________
UNITED STATES OF AMERICA , X
OPINION
Plaintiff-Appellee, - _________________
-
- No. 03-5468
v. JULIA SMITH GIBBONS, Circuit Judge. Defendant-
-
> appellant Larry Swafford was charged in a three count
, indictment in the United States District Court for the Eastern
LARRY SWAFFORD , - District of Tennessee with (1) possession with intent to
Defendant-Appellant. - distribute fifty grams or more of methamphetamine, in
N violation of 21 U.S.C. § 841(a)(1) and (b)(1)(B);
Appeal from the United States District Court (2) possession with intent to distribute methamphetamine, in
for the Eastern District of Tennessee at Chattanooga. violation of 21 U.S.C. § 841(a)(1) and (b)(1)(C); and
No. 02-00014—Curtis L. Collier, District Judge. (3) possession of a firearm in furtherance of the drug
trafficking crimes charged in the first two counts, in violation
Argued: June 11, 2004 of 18 U.S.C. § 924(c). After a jury trial, Swafford was
convicted on all three counts and sentenced to 180 months
Decided and Filed: September 30, 2004 imprisonment. Swafford brought this appeal, arguing that the
evidence was insufficient to support his conviction for
Before: KEITH, CLAY, and GIBBONS, Circuit Judges. possession of a firearm in furtherance of a drug trafficking
offense and that the district court erred in admitting the
_________________ testimony of law enforcement officers who testified (1) that
the amounts of drugs possessed by Swafford were consistent
COUNSEL with resale and that dealers often carry firearms in connection
with their sales activities; and (2) that a name on a business
ARGUED: Nikki C. Pierce, FEDERAL DEFENDER card belonged to a known drug dealer and numbers on that
SERVICES, Greeneville, Tennessee, for Appellant. Paul W. card corresponded to common drug prices. For the following
Laymon, Jr., ASSISTANT UNITED STATES ATTORNEY, reasons, we affirm Swafford’s conviction.
Chattanooga, Tennessee, for Appellee. ON BRIEF: Nikki
C. Pierce, FEDERAL DEFENDER SERVICES, Greeneville,
Tennessee, for Appellant. Paul W. Laymon, Jr., ASSISTANT
1
No. 03-5468 United States v. Swafford 3 4 United States v. Swafford No. 03-5468
I. offense beyond a reasonable doubt.” United States v. Davis,
306 F.3d 398, 408 (6th Cir. 2002).
On November 15, 2001, Detective Jimmy Smith of the
Bradley County Sheriff’s Office acquired and executed a We generally review evidentiary decisions for an abuse of
search warrant for Swafford’s residence, a single family discretion. United States v. Talley, 164 F.3d 989, 1000 (6th
house in Cleveland, Tennessee. Smith, accompanied by other Cir. 1999). If, however, the appealing party did not raise an
officers, arrived at the residence shortly after 9:10 p.m. When objection to the introduction of the evidence at trial, we
Swafford’s wife answered the door, the officers entered and review the judge’s decision for plain error. United States v.
found Swafford lying in bed holding an infant. An officer Cowart, 90 F.3d 154, 157 (6th Cir. 1996). “[B]efore an
found a loaded .45 caliber semi-automatic pistol within arm’s appellate court can correct an error not raised at trial, there
reach of where he had been lying. The officer seized this must be (1) error, (2) that is plain, and (3) that affects
pistol, as well as two loaded .22 caliber pistols. The officers substantial rights. If all three conditions are met, an appellate
did not seize several rifles and shotguns found in a gun court may then exercise its discretion to notice a forfeited
cabinet. error, but only if (4) the error seriously affects the fairness,
integrity, or public reputation of judicial proceedings.”
An officer found ten to fifteen garbage bags in the bed of an Johnson v. United States, 520 U.S. 461, 467 (1997) (citations
old truck in a makeshift garage behind the house. The omitted).
officers found a Tupperware bowl containing three one-ounce
bags of marijuana and some loose marijuana in one of the III.
garbage bags. Also inside the bag were numerous sandwich
baggies, each of which had two corners cut out. The officers Swafford first argues that his conviction for possession of
also found methamphetamine weighing a total of 66.5 grams a firearm in furtherance of a drug offense was not supported
hidden in a stereo on a workbench in the garage. A shelf on by sufficient evidence. Eighteen U.S.C. § 924(c) provides:
the workbench held a blender which appeared to contain
methamphetamine residue, a set of digital scales, and a Any person who, during and in relation to any crime of
playing card.1 Officers found $934 in cash in Swafford’s violence or drug trafficking crime . . . for which the
wallet, as well as a lawyer’s business card, on the back of person may be prosecuted in a court of the United States,
which was written “Tony Perry 280” and “Ron 110.” uses or carries a firearm, or who, in furtherance of any
such crime, possesses a firearm, shall, in addition to the
II. punishment provided for such crime of violence or drug
trafficking crime –
In reviewing the sufficiency of the evidence for a criminal
conviction, we must determine whether, after viewing the (i) be sentenced to a term of imprisonment of not less
evidence in the light most favorable to the prosecution, “any than 5 years.
rational trier of fact could have found the elements of the
1
An officer testified that playing cards are commonly used to scoop
methamphetamine.
No. 03-5468 United States v. Swafford 5 6 United States v. Swafford No. 03-5468
18 U.S.C. § 924(c)(1)(A).2 This statute was interpreted by Finally, the gun was discovered as the officers executed a
this court in United States v. Mackey, where we stated: search warrant looking for drugs, which they ultimately
found. Thus, each of the Mackey factors points to the
[W]e emphasize that the possession of a firearm on the conclusion that this weapon was possessed in furtherance of
same premises as a drug transaction would not, without the drug offenses.
a showing of a connection between the two, sustain a
§ 924(c) conviction. In order for the possession to be in In addition, we have stated that “[a]lthough possession of
furtherance of a drug crime, the firearm must be a firearm in the same premises as the drug trafficking
strategically located so that it is quickly and easily activities alone is insufficient to support a conviction under
available for use. Other factors that may be relevant to section 924(c), a jury can reasonably infer that firearms which
a determination of whether the weapon was possessed in are strategically located so as ‘to provide defense or
furtherance of the crime include whether the gun was deterrence in furtherance of the drug trafficking’ are used in
loaded, the type of weapon, the legality of its possession, furtherance of a drug trafficking crime.” United States v.
the type of drug activity conducted, and the time and Couch, 367 F.3d 557, 561 (6th Cir. 2004). While in Couch
circumstances under which the firearm was found. the firearms were in closer proximity to the drugs than was
the case here, we also relied on testimony from a law
265 F.3d 457, 462 (6th Cir. 2001) (citations omitted). The enforcement officer that “at least one of the firearms
court noted that these factors would help the court “to discovered – the Smith & Wesson handgun – is commonly
distinguish possession in furtherance of a crime from innocent associated with drug trafficking crimes.” Id. The same
possession of a wall- mounted antique or an unloaded hunting testimony was offered here with regard to the .45. Also,
rifle locked in a cupboard.” Id. while the drugs were not found in the same room as the gun,
the garage where they were found was easily accessible from
In the present case, Swafford’s .45 caliber pistol was the bedroom where Swafford and the gun were found.
strategically located so that it was quickly and easily available Swafford could reach the garage, which was attached to the
for use. The gun was found loaded, with its handle pointing house by wooden boards, simply by walking ten to fifteen
up, within arm’s reach of the bed where Swafford was lying. feet out the bedroom door. In addition, the gun seems much
It can hold a large number of rounds, and because it is more useful for protection purposes if kept close to Swafford,
semiautomatic, it can fire these rounds in rapid succession. the potential user, rather than close to the drugs. Considering
Agent Frank Ledford of the Drug Enforcement this evidence, we conclude that a rational trier of fact could
Administration testified that such weapons play a role in drug have found the elements of the crime beyond a reasonable
distribution, as dealers carry them for protection and doubt.
intimidation purposes. Because Swafford had been convicted
of a prior felony, his possession of the gun was unlawful. Swafford next argues that the district court erred by
admitting Agent Ledford’s testimony that the drugs were
possessed with the intent to distribute and that the guns were
2
As this court has stated, § 92 4(c) “criminalizes two separate and
distinct offenses,” using or carrying a firearm during and in relation to a
drug offense, and possessing a firearm in furtherance of a drug offense.
United States v. Combs, 369 F.3d 9 25, 933 (6th Cir. 2004). Swafford was
charged with the latter.
No. 03-5468 United States v. Swafford 7 8 United States v. Swafford No. 03-5468
possessed in furtherance of the drug offenses.3 Swafford United States v. Bender, 265 F.3d 464, 472 (6th Cir. 2001)).4
contends that Agent Ledford testified to an ultimate issue in The recognized role of police officers as experts in cases such
the trial, thereby improperly invading the province of the jury as this one requires that we find no error in the admission of
and violating his Sixth Amendment right to a jury trial. Agent Ledford’s testimony.
Because Swafford did not object at trial, we review the
district court’s decision for plain error. Police officers are routinely allowed to testify that
circumstances are consistent with distribution of drugs rather
Agent Ledford testified on behalf of the government as an than personal use. See United States v. Jones, 81 Fed. Appx.
expert in the area of methamphetamine investigations. 45, 48 (6th Cir. 2003) (affirming defendant’s sentence where
Properly qualified expert testimony is generally admissible if police officer testified that the amount of drugs found, as well
it “will assist the trier of fact to understand the evidence or to as the presence of zip-lock bags and a digital scale, suggested
determine a fact in issue.” Fed. R. Evid. 702. “Our court that defendant intended to distribute the drugs); United States
regularly allows qualified law enforcement personnel to v. Dillard, 78 Fed. Appx. 505, 514-15 (6th Cir. 2003)
testify on characteristics of criminal activity, as long as (affirming defendant’s sentence where officer testified that
appropriate cautionary instructions are given, since amount of drugs was more consistent with distribution than
knowledge of such activity is generally beyond the with personal use); United States v. Quinn, 230 F.3d 862, 866
understanding of the average layman.” United States v. (6th Cir. 2000) (affirming defendant’s sentence where officer
Thomas, 99 Fed. Appx. 665, 668-69 (6th Cir. 2004) (citing testified that amount of drugs was more consistent with
distribution than with personal use).
In addition, we find that the district court did not err in
allowing Agent Ledford to testify that firearms play a role in
drug trafficking activity. We recently held admissible an
3
Agent Ledford testified as follows:
officer’s testimony that large-capacity pistols are commonly
Q: But based upon the factors that I’ve just set out for you that used in drug trafficking. See Thomas, 99 Fed. Appx. at 669.
you know to be the evidence, do you have an opinion as to
whether or no t this methamphetamine was possessed with
the intent to distribute it? 4
A: Yes, sir, that’s what it was designed for, that’s what it was In the instant case, the district court properly cautioned the jury:
doing.
Q: W hy, in your opinion, was that possessed with the intent to You have . . . heard the testimony of Drug Enforcement
distribute? Administration Special Agent Frank Ledford. Special Agent
A: Because you have the amount, 2½, maybe – approxim ately Ledford was offered as an expert in the area of
2½ ounces, you’ve got the blender where it’s been chopped methamphetamine investigations. An expert witness has special
up so it can be weighed out correctly on the scales, then you knowledge or experience that allows the witness to give an
have the baggies with the corners cut out of them. opinion.
Q: W hat about the presence of the firearms; does that have a
role in d istribution -of-drug activity? You do not have to accept an expert’s opinion. In deciding how
A: Yes, sir, it does. much weight to give it, you should co nsider the witness’s
Q: W hat is that? qualifications and how he reached his conclusions as well as any
A: W e see that drug dealers carry firearms for intimidation and other factors you think are relevant to determining whether the
protection of their product. expert is a credible witness.
No. 03-5468 United States v. Swafford 9 10 United States v. Swafford No. 03-5468
In that case, we observed that “[m]ost courts have taken a IV.
very tolerant view of the admissibility of expert testimony
linking the presence of firearms to drug trafficking activities.” For these reasons, we affirm Swafford’s conviction and
Id. (citing United States v. Allen, 269 F.3d 842, 845-46 (7th sentence.
Cir. 2001) (upholding admission of police expert testimony
that it is common for drug dealers to keep weapons to protect
themselves and their drugs) and United States v. Jackson, 67
F.3d 1359, 1366 (8th Cir. 1995) (same)). In addition, in
United States v. Pearce, we held admissible an officer’s
testimony that handguns found inside a suspicious building
were typical of guns found in crack houses. 912 F.2d 159,
163 (6th Cir. 1990). Similarly, the district court in this case
did not plainly err in allowing Agent Ledford to testify that
“drug dealers carry firearms for intimidation and protection of
their product.”
Last, Swafford argues that the district court erred in
admitting the testimony of Detective Smith who identified a
name handwritten on a business card found in Swafford’s
wallet as that of a known drug dealer and who stated that two
dollar amounts written on the card corresponded to the cost of
certain quantities of methamphetamine. Swafford argues that
this testimony was impermissibly based on hearsay and
speculation. Swafford did not object to the admission of this
testimony, contemporaneously or otherwise, although later in
the trial he objected to the admission of the business card on
relevancy grounds. We therefore review for plain error.
Smith’s testimony regarding common drug prices helped
the jury to understand the evidence presented, and therefore
was proper expert testimony. See Bender, 265 F.3d at 472.
Further, he did not state that the numbers actually represented
drug debts, which would have been beyond his knowledge,
just that they were consistent. Finally, Smith’s testimony,
elicited during cross examination, that Tony Perry, whose
name was written on the card, was a known drug dealer was
based on personal knowledge gleaned from past
investigations. The admission of Smith’s testimony was not
plain error.
No. 03-5468 United States v. Swafford 11 12 United States v. Swafford No. 03-5468
____________________ refrigerator in the kitchen and a loaded firearm on the top
shelf of a closet in an upstairs bedroom. Significantly, in Hall
CONCURRENCE the charges were under the “during and in relation to” clause
____________________ of § 924(c)(1)(A), which demands less evidence of a
connection to the drug trafficking offense than is required by
CLAY, Circuit Judge, concurring. I concur with the the “in furtherance of” clause that was charged in the instant
majority’s disposition but not with all of its reasoning on the case. Mackey, 265 F.3d at 462.
issue of whether Defendant possessed a firearm “in
furtherance of” a drug trafficking crime, under 18 U.S.C. The majority presents this issue as straightforward, but it is
§ 924(c)(1)(A). This issue is closer than the majority not. There is sufficient evidence to support a conviction, but
suggests. only by a close margin.
The majority states that “each of the Mackey factors points
to the conclusion that this weapon was possessed in
furtherance of the drug offenses.” This is not entirely true.
For one, “the time and circumstances under which the firearm
was found,” United States v. Mackey, 265 F.3d 457, 462 (6th
Cir. 2001), provide little evidence of any connection between
the firearm and drug trafficking. The firearm was not
discovered during any drug transaction but, rather, during a
police search of the residence. Another factor in Mackey was
the proximity of the firearm to the drugs. Id. at 462. In the
instant case, the facts are either ambiguous or favor
Defendant’s position, inasmuch as the firearm was found in
the bedroom and the drugs were in the garage.
There were Mackey factors supporting the connection
between the firearm and the drug offense, such as the gun
being loaded, illegally possessed, and in a very easily
accessible location. Based upon these factors it would not be
irrational for a factfinder to sustain a conviction under
§ 924(c)(1)(A). But this is a close issue, and any small
variation in the facts, diminishing the connection between the
gun and the drugs, might have been enough to render the
evidence insufficient to support the conviction. Under very
similar facts, in United States v. Hall, 20 F.3d 1084 (10th Cir.
1994), the Tenth Circuit ruled that there was insufficient
evidence to support a conviction under § 924(c), where a
police search of a house found drugs in a package on top of a