United States v. Bryant , 206 F. App'x 535 ( 2006 )

NOT RECOMMENDED FOR PUBLICATION
File Name: 06a0853n.06
Filed: November 21, 2006
No. 05-5958
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
UNITED STATES OF AMERICA, )
)
Plaintiff-Appellee, )
)
v. ) ON APPEAL FROM THE UNITED
) STATES DISTRICT COURT FOR THE
GEORGE BRYANT, ) EASTERN DISTRICT OF TENNESSEE
)
Defendant-Appellant. )
) OPINION
Before: GILMAN and GRIFFIN, Circuit Judges; and GWIN, District Judge.*
RONALD LEE GILMAN, Circuit Judge. A federal grand jury indicted George Bryant,
Crystal Keel, Scottie Magouirk, and Richard Whited on ten counts relating to the manufacture and
use of methamphetamine. Following a jury trial in Bryant’s case and guilty pleas in the cases of
Keel, Magouirk, and Whited, the district court imposed sentences of 100, 188, 151, and 151 months
in prison, respectively. Bryant raises the following two challenges to his convictions: (1) that the
evidence presented at trial was insufficient to support them, and (2) that the district court’s allowance
of certain unobjected-to testimony by a government witness constituted plain error and requires
reversal. He raises no challenges to the length of his sentence. For the reasons set forth below, we
AFFIRM the judgment of the district court.
*
The Honorable James S. Gwin, United States District Court for the Northern District of Ohio, sitting by
designation.
No. 05-5958
United States v. Bryant
I. BACKGROUND
A. Procedural background
A federal grand jury charged Bryant in three counts of the ten-count indictment that also
named Keel, Magouirk, and Whited. Count One charged all four individuals with a conspiracy to
knowingly manufacture methamphetamine between January of 2001 and April 22, 2004, in violation
of 21 U.S.C. §§ 841(a)(1), 841(b)(1)(C), and 846. Under Count Nine, the grand jury charged Bryant
and Whited with the related crime of aiding and abetting each other in knowingly attempting to
manufacture methamphetamine on April 22, 2004, in violation of the same three statutes as well as
18 U.S.C. § 2. Count Ten similarly charged Bryant and Whited with aiding and abetting each other
on April 22, 2004 in knowingly possessing equipment, chemicals, products, and materials that could
be used to manufacture methamphetamine, with the additional knowledge that such materials would
in fact be used to manufacture methamphetamine, all in violation of 21 U.S.C. § 843(a)(6) and 18
U.S.C. § 2. Unlike his codefendants, who pled guilty, Bryant demanded a jury trial. A one-day jury
trial on February 23, 2005 resulted in a verdict of guilty as to all three counts against him. On June
6, 2005, the district court sentenced Bryant to 100 months in prison. This timely appeal followed.
B. Factual background
The government called only two witnesses at Bryant’s trial: Dale Hesketh, an agent with the
Tennessee Alcoholic Beverage Commission, and Josh Melton, an agent with the Commission as well
as a task-force officer with the federal Drug Enforcement Administration (DEA). Bryant does not
dispute either agent’s testimony or the physical evidence introduced against him. He instead
--2--
No. 05-5958
United States v. Bryant
contends that, taken together, the testimonial and physical evidence was insufficient to support his
convictions. The relevant facts are set forth below.
1. The search of Whited’s trailer
Hesketh and Melton went to Whited’s trailer on April 22, 2004 to execute a state arrest
warrant for Whited. Based on Melton’s work with the DEA, the agents had reason to believe that
Whited and others were manufacturing methamphetamine on the premises. After Melton found
Whited alone in a detached garage near the trailer, he placed Whited under arrest. Melton then asked
Whited for consent to search the premises. Whited agreed, and led the agents to the back door of
the trailer, which he opened with the assistance of those inside. Upon entering, Hesketh immediately
noticed Bryant and another man, later identified as Chad Campbell, seated on the floor of a bedroom
directly in front of where Hesketh was standing. After identifying himself as a law-enforcement
officer and after asking Bryant and Campbell to stand with their hands up, Hesketh performed a pat
down of Bryant. Hesketh found and seized a single glass pipe in Bryant’s pocket as well as several
more glass pipes and a blue plastic envelope elsewhere on Bryant’s person. A lab test later
determined that the substance in the envelope was methamphetamine.
Hesketh then escorted Bryant and Campbell to Melton, who was in another room, and
continued searching the trailer. In the bathroom toilet, Hesketh observed two plastic baggies
containing what appeared to be white powder. Melton independently observed the baggies and later
smelled their contents. Both the fine grain of the powder and the pungency of its smell led Melton
to believe that the baggies contained methamphetamine. Lab tests later determined that the white
powder was pseudoephedrine, which when crushed is a precursor to the manufacture of
--3--
No. 05-5958
United States v. Bryant
methamphetamine. The combined weight of the pseudoephedrine in the two baggies was 12.7
grams.
Hesketh’s search ultimately uncovered numerous additional methamphetamine paraphernalia,
all of which were admitted at trial either in their actual physical form or via photograph. These items
included an unopened bottle of pseudoephedrine, digital scales, crystal iodine, five bottles of
hydrogen peroxide, coffee filters, rubber tubing, propane torches, a glass pyrex dish containing what
appeared to Melton to be red phosphorus residue, and an entire box of glass tubes of the type
commonly used to smoke methamphetamine. A partially used bottle of crystal iodine and the digital
scales were found in a trash can in the bathroom. Iodine and red phosphorous function jointly as
reagents in the manufacture of methamphetamine, and digital scales are typically used to measure
the reagents and the pseudoephedrine precursor to ensure a proper ratio between the two. When
crystal iodine, a rare substance, is unavailable, hydrogen peroxide can be mixed with a less pure
tincture of iodine to create the desired crystal form. Coffee filters assist in the manufacturing process
at numerous stages. Torches, finally, heat the glass tubes that are used to smoke the
methamphetamine.
2. The interrogation of Bryant
After having been read his Miranda rights while still at the trailer, Bryant agreed to talk with
Melton, first in the presence of Whited and then alone. In the presence of Whited, Bryant admitted
that he had thrown the crystal iodine and the digital scales into the trash can in the bathroom. Bryant
hesitated, however, when Melton asked whether the white powder in the baggies found in the toilet
was pseudoephedrine or methamphetamine. Only after consulting with and receiving permission
--4--
No. 05-5958
United States v. Bryant
to answer from Whited did Bryant admit that the powder was “ephedrine,” shorthand for
pseudoephedrine.
Later, outside the presence of Whited, Bryant insisted that he did not own either the crystal
iodine or the digital scales that he had thrown in the bathroom trash can. He nevertheless told
Melton that “I’ll take credit for it if it will keep everybody else out of trouble.” Melton responded
by saying that because their conversation was now private, Bryant “should not claim something
that’s not yours.” Bryant replied that “what goes on here in the house is, you know, adult decisions,
and between adults, and the way I look at it, we’re not hurting anybody.” He became “very
aggravated” with Melton shortly thereafter, telling Melton that “you’re not going to trick me with
the friendly talk,” whereupon the conversation between the two ended.
When later asked at trial to provide the context for Bryant’s statements, Melton said that by
“adult decisions” he understood Bryant to have been referring to the manufacture and use of
methamphetamine. Bryant did not object to this testimony. Finally, in another conversation with
Melton that took place sometime after the April 22, 2004 search of Whited’s trailer, Bryant admitted
that he had consistently used methamphetamine prior to that date in the amount of half an “eight-
ball” per use, which is approximately 1.75 grams.
II. ANALYSIS
A. The government’s evidence at trial was sufficient to support Bryant’s convictions
1. Standard of review
--5--
No. 05-5958
United States v. Bryant
In arguing insufficiency of the evidence, Bryant “bears a very heavy burden.” See United
States v. Spearman, 186 F.3d 743, 746 (6th Cir. 1999). Evidence in a criminal case is deemed
sufficient if we determine that, “after viewing the evidence in the light most favorable to the
government, any rational trier of fact could have found the elements of the crime beyond a
reasonable doubt.” United States v. Gardiner, 463 F.3d 445, 456 (6th Cir. 2006) (citing Jackson v.
Virginia, 443 U.S. 307, 319 (1979)). We view the evidence in the light most favorable to the
government by drawing all reasonable inferences from the testimony in its favor. United States v.
Abdullah, 162 F.3d 897, 903 (6th Cir. 1998).
2. Discussion
The evidence offered against Bryant at trial was more than sufficient to support his
convictions. Bryant was convicted under Count One of a conspiracy to manufacture
methamphetamine, in violation of 21 U.S.C. §§ 841(b)(1)(C) and 846. In order to establish a
conspiracy under 21 U.S.C. § 846, the government must prove beyond a reasonable doubt “the
existence of an agreement to violate the drug laws and that each conspirator knew of, intended to join
and participated in the conspiracy.” United States v. Pearce, 912 F.2d 159, 161 (6th Cir. 1990). The
government need not prove the existence of a formal agreement; rather, “a tacit or material
understanding among the parties is sufficient to show a conspiracy.” Id. In addition,
“[c]ircumstantial evidence alone is sufficient to sustain a conviction and such evidence need not
remove every reasonable hypothesis except that of guilt.” Spearman, 186 F.3d at 746 (quotation
marks omitted); see also United States v. Stone, 748 F.2d 361, 363 (6th Cir. 1984) (“[W]e hold once
and for all that our court on appeal will reverse a judgment for insufficiency of the evidence only if
--6--
No. 05-5958
United States v. Bryant
this judgment is not supported by substantial and competent evidence upon the record as a whole,
and that this rule applies whether the evidence is direct or wholly circumstantial.”). Finally, once
the government has established the existence of a conspiracy, “evidence connecting a particular
defendant to the conspiracy need only be slight.” United States v. Gibbs, 182 F.3d 408, 421 (6th Cir.
1999) (quotation marks omitted). “A buyer/seller relationship alone is not enough to establish
participation in the conspiracy, but further evidence indicating knowledge of and participation in the
conspiracy can be enough to link the defendant to the conspiracy.” Id. at 421-22.
In the present case, the government offered both physical and testimonial evidence against
Bryant. The physical evidence consisted of the numerous objects seized or photographed by agents
Hesketh and Melton during their arrest of Bryant and his codefendants at Whited’s trailer on April
22, 2004. Among these objects were the finished methamphetamine product found in an envelope
on Bryant’s person and the ground pseudoephedrine tablets found in the bathroom toilet.
Agent Melton’s testimony provided additional corroborating evidence that (1) Bryant and his
codefendants were in fact present at the home when and where Hesketh and Melton discovered the
physical evidence, (2) Bryant admitted to Melton that he had thrown the ground pseudoephedrine
into the toilet and a bottle of crystal iodine and a digital scale into the bathroom trash can after the
agents had arrived at the trailer, (3) Bryant, when asked by Melton to identify the substance in the
toilet, first looked to Whited for permission before answering Melton’s question, (4) Bryant told
Melton that “what goes on in the house is, you know, adult decisions, and between adults, and the
way I look at it, we’re not hurting anybody,” and (5) Bryant refused to answer Melton when the latter
asked who was manufacturing methamphetamine. Melton opined that these several statements by
--7--
No. 05-5958
United States v. Bryant
Bryant, when coupled with the physical evidence observed at and retrieved from the trailer, indicated
“obviously, that the manufacture of methamphetamine was occurring.”
Contrary to Bryant’s argument, the government offered far more than Bryant’s “mere
presence” as evidence that he was involved with his codefendants in a conspiracy to manufacture
methamphetamine. Bryant’s assertion that because “the defendant-appellant was in a trailer where
items were found which would be used to make meth does not of him make a meth-maker or a
conspirator” is, although an accurate statement of the law, an entirely insufficient summary of the
evidence against him. At least one rational juror could have found that, based on the evidence
presented, Bryant was guilty beyond a reasonable doubt of conspiring to manufacture
methamphetamine. This conclusion, moreover, applies equally to the intent-based challenges that
Bryant raises to his two aiding-and-abetting convictions, in defense of which Bryant offers no legal
or factual argument beyond the same meritless “mere presence” claim.
B. The admission of Agent Melton’s statements did not constitute plain error
1. Standard of review
Bryant further argues that the district court improperly allowed Agent Melton to “decode”
for the jury certain statements that Bryant had made to Melton at the time of Bryant’s arrest. First,
Bryant claims that Melton engaged in total speculation when Melton opined that Bryant was
referring to the manufacture of methamphetamine when Bryant said that “adult decisions” were
being made in the trailer. Bryant fails to mention, however, that Melton offered this opinion
specifically in response to the government’s question on direct examination as to the “context” into
which Bryant’s statement fit. Second, Bryant claims that Melton, again without proper
--8--
No. 05-5958
United States v. Bryant
“qualifications or special talents,” testified that the phrase “painting a car” meant “collecting drug
money.” This second claim is meritless for the simple reason that, as the government notes in its
brief, neither the phrase nor Melton’s interpretation of it is to be found anywhere in the record.
As to the first instance of “decoding,” we ordinarily review the admission of expert
testimony, as well as evidentiary decisions generally, under the deferential abuse-of-discretion
standard. United States v. Bender, 265 F.3d 464, 472 (6th Cir. 2001). Because Bryant did not object
to Melton’s allegedly impermissible statements at trial, however, we review Bryant’s challenge to
their admissibility under the even more deferential plain-error standard. See United States v.
Swafford, 385 F.3d 1026, 1030 (6th Cir. 2004), cert. denied, 543 U.S. 1169 (2005). Plain error is
difficult to demonstrate and exists only where, at a minimum, there is “(1) error, (2) that is plain, and
(3) that affects substantial rights.” Id. at 1028. Even then, a plain-error determination remains
subject to the discretion of the reviewing court, which may grant relief based upon the forfeited error,
“but only if (4) the error seriously affects the fairness, integrity, or public reputation of judicial
proceedings.” Id. If we determine that no error exists, of course, “our inquiry is at an end.” United
States v. Thomas, 11 F.3d 620, 630 (6th Cir. 1993).
2. Discussion
This court “regularly allows qualified law enforcement personnel to testify on characteristics
of criminal activity, as long as appropriate cautionary instructions are given, since knowledge of such
activity is generally beyond the understanding of the average layman.” Swafford, 385 F.3d at 1030.
Drug-dealing is one such activity. See id. (allowing the agent to testify as an expert on
methamphetamine investigations); United States v. Thomas, 74 F.3d 676, 682 (6th Cir. 1996)
--9--
No. 05-5958
United States v. Bryant
(“Courts have overwhelmingly found police officers’ expert testimony admissible where it will aid
the jury’s understanding of an area, such as drug dealing, not within the experience of the average
juror.”), abrogated on other grounds by Morales v. American Honda Motor Co., 151 F.3d 500, 515
(6th Cir. 1998).
Agent Melton’s testimony easily fits within these precedents. He was and still is a law-
enforcement officer. His testimony related to characteristics of methamphetamine production and
drug use generally, both types of criminal activity with which he had considerable familiarity given
his training and experience as an agent of the DEA. He even testified that he once had taught a
course about methamphetamine manufacturing to trainees of a Tennessee state agency. The district
court, moreover, specifically explained that although Melton would be allowed to testify about those
matters to which his expertise extended, such as the manufacture and production of
methamphetamine, it would not certify Melton as an expert or “put my particular imprimatur on his
expertness.” Bryant’s Daubert-reliability argument is accordingly misplaced. In addition, the
district court issued not one, but two separate limiting instructions to the jury sua sponte, clarifying
that
[Agent Melton is] not qualified to offer an opinion about who was doing what. His
opinion was the opinion that someone was making methamphetamine there, but his
opinion as to who was doing it this witness cannot render that. That will have to be
your opinion, your decision.
The district court later reiterated that
[y]ou do not have to accept an expert’s opinion. In deciding how much weight to
give it, you consider the witness’ qualifications and how he reached his conclusions.
Remember that you alone decide how much of a witness’ testimony to believe, and
how much weight that it deserves.
--10--
No. 05-5958
United States v. Bryant
Based on the record in this case, we conclude that the admission of Melton’s testimony did not
constitute error of any kind, much less that of the plain variety.
III. CONCLUSION
For all of the reasons set forth above, we AFFIRM the judgment of the district court.
--11--