United States v. Raymond Leary

NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
File Name: 11a0311n.06
No. 09-5418 FILED
May 12, 2011
UNITED STATES COURT OF APPEALS LEONARD GREEN, Clerk
FOR THE SIXTH CIRCUIT
UNITED STATES OF AMERICA, )
)
Plaintiff-Appellee, ) ON APPEAL FROM THE
) UNITED STATES DISTRICT
v. ) COURT FOR THE EASTERN
) DISTRICT OF KENTUCKY
RAYMOND LEARY, )
)
OPINION
Defendant-Appellant. )
_______________________________________)
Before: MOORE and STRANCH, Circuit Judges; COHN, District Judge.*
KAREN NELSON MOORE, Circuit Judge. The defendant-appellant in this case,
Raymond Leary, was arrested on May 15, 2008, after the police found three guns and 3.48 grams of
crack cocaine in the apartment he shared with Betty Jo Luhman. Leary was charged with five counts
related to his possession of the drugs and guns, and, after the jury heard evidence regarding the
location in which the guns and drugs were found, along with several admissions from Leary to the
arresting officers and testimony from a government expert on drug trafficking, the jury convicted
Leary on all counts. During trial, however, Leary moved for a judgment of acquittal on the grounds
that there was insufficient evidence to permit a jury to find that he constructively possessed the drugs
and that he constructively possessed the guns in furtherance of a drug trafficking crime. He now
*
The Honorable Avern Cohn, United States District Judge for the Eastern District of
Michigan, sitting by designation.
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United States v. Leary
appeals the district court’s denial of those two motions. For the following reasons, we affirm in part
and reverse in part.
I. BACKGROUND
Raymond Leary met Betty Jo Luhman in February 2006 and developed a romantic
relationship with her shortly thereafter. By August 2006, he had moved into her apartment on the
east side of Lexington, Kentucky, but their relationship ended some time later because of an act of
domestic violence by Leary, for which he served 12 months in prison. Leary and Luhman kept in
touch while he was in prison, however, and upon his release, they resumed their relationship. Leary
moved back in with Luhman in April 2008.
Luhman’s second-floor apartment had a living room, a kitchen, and one bedroom, with a
large, walk-in closet. Leary and Luhman shared this closet; Luhman kept her clothes and jewelry
on the right side of the closet, and Leary kept his belongings on the left, including a few baseball hats
on a shelf at shoulder-level. In addition, although Leary and Luhman were the primary occupants
of the apartment, during the time when the key events in this case took place—April and May of
2008—two other individuals were frequently at the apartment. The first was Reginald Branch, a
friend of Leary’s. The second was Leary’s cousin, Aaron Rankins, who went by the name of “Easy”
and who began to stay at the apartment in mid-April after being picked up from Edenton, North
Carolina, by Leary, Branch, and Brittany Stephens. At trial, Stephens testified that when she picked
Easy up in Edenton with Leary and Branch, Easy brought a long, blue duffel bag with him into her
car, but she didn’t know what was in the bag, nor did she see it after this trip.
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Also in mid-April, Leary and Luhman got into an argument, during which Leary took a small,
black gun out of the ceiling and pointed it at Luhman’s head. Because Luhman had seen and perhaps
said something about the lack of ammunition in the gun, Leary went into the closet and took a long,
assault-rifle out of a duffel bag in the left side of the closet—this one clearly loaded —and pointed
it at her head. Greatly scared by this, Luhman went to Richmond, Kentucky the next day to stay with
her husband, from whom she had separated.
Luhman returned to Lexington by the end of April, but a similar event occurred a few weeks
later. On May 14, 2008, Luhman saw Leary in her car with another woman, which prompted an
argument between them. This time, Leary hit Luhman, and when Luhman indicated that she was
going to go to the police, Leary grabbed her and stopped her from going. Leary then left in
Luhman’s car. The following day, May 15, Luhman called her cousin to pick her up and take her
to the police. Her desire was to get the guns out of her apartment. After reporting to a deputy at the
police station what Leary had done the previous day, Luhman went back to her apartment, where she
was met by several officers in front of her apartment building. She told them that Leary had
threatened her and that he had put a gun to her head the day before. While she was speaking to the
officers, however, Leary called Luhman on her cell phone and threatened her; one of the officers
could overhear Leary telling Luhman, “I can see the police outside and I’m gonna beat your ass
later.” R. 55–56 (Trial Tr. at 58).
The officers looked for Luhman’s car and wondered where Leary could be if he could see
them, but when they couldn’t find Leary, they “finally just decided to go to the apartment to see if
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Mr. Leary was there.” Id. Leary met them at the door and complied with the officers’ request to step
outside, as did Branch and Easy, who were also in the apartment. Officer Justin Burnett spoke with
Leary outside, while Officer Nathaniel Muller went inside the apartment with Luhman to look
around. Leary received so many cell phone calls that the police had to tell him to stay off the phone
so they could talk to him. Inside the apartment, Luhman showed Officer Muller where the guns were
in the closet. When Officer Muller saw that the closet appeared to be shared by both Luhman and
Leary, he opted to go back outside to speak with Officer Burnett rather than go through what
appeared to be Leary’s belongings. Officer Burnett asked Leary if he would permit them to search
the closet, including, specifically, the clothes and duffel bag on the left side, and Leary gave them
his permission. When the officers asked to whom the clothing and other items belonged, including
the duffel bags, the colors of which they described, Leary stated that these items were all his. With
that, the officers went back inside and searched the closet. In the blue duffel bag were three firearms:
a black, Jennings .22 handgun; an AK-47 assault rifle, and an SKS assault rifle. Underneath the hats
on the shelf was a bag of crack cocaine; the cocaine was broken up into several pieces. Nothing else
of significance was found. Notably, the officers found no paraphernalia indicative of the use of
drugs.
Leary was then arrested. He had $448—made up of twenty $20 bills, two $10 bills, two $5
bills, and eighteen $1 bills—plus a black cell phone, which rang frequently while the police were
around Leary, on his person. Leary called Luhman on May 15 and told her to say the guns were hers.
He was indicted in federal court on October 16, 2008, and charged with:
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Count 1: Possession with intent to distribute cocaine base (21 U.S.C.
§ 841(a)(1));
Count 2: Possession of firearms in furtherance of a drug trafficking crime (18
U.S.C. § 924(c)(1)(A)(i));
Count 3: Possession of firearms by a convicted felon (18 U.S.C. §§ 922(g)(1)
and 924(a)(2));
Count 4: Possession of firearms while subject to a domestic violence order (18
U.S.C. §§ 922(g)(8) and 924(a)(2));
Count 5: Possession of firearms after having been convicted of a misdemeanor
crime of domestic violence (18 U.S.C. §§ 922(g)(9) and 924(a)(2)).
R. 1 (Indictment). His trial occurred on December 29 and 30, 2008. At trial, Leary stipulated to the
fact that (1) the substance found in the bag under the hats was 3.48 grams of cocaine base, (2) he had
previously been convicted of a felony, (3) he was subject to a domestic violence order on the night
of his arrest, (4) he had previously been convicted of a misdemeanor crime of domestic violence, and
(5) the guns and ammunition listed in the indictment had been shipped or transported in interstate
or foreign commerce prior to Leary’s arrest. Appendix at 1–2.
The government presented the testimony of Luhman, Officer Burnett, Officer Muller, and
Officer Thomas Perkins, who assisted with the search and arrest on May 15, 2008. In addition to
the above facts, Luhman testified that she had seen Leary with drugs in the past, but she had never
seen him use or sell them. She never knew him to have a job, and she said that Easy also kept some
of his belongings in the closet. The government called Shane Ensminger as an expert in drug crimes.
He testified that the amount of drugs found—3.48 grams—and the presence of guns were both
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indicative of an intent to distribute the drugs, as opposed to mere personal use, which would instead
likely result in the presence of drug-use paraphernalia. Leary, in turn, had only one witness testify:
Brittany Stephens testified as to her involvement picking up Easy in North Carolina with Leary and
Branch, and that Easy had brought a blue duffel bag with him, the contents of which she did not
know.
At the close of the government’s case, Leary moved for a judgment of acquittal. The district
court denied this motion; after Leary presented his own case, the jury found him guilty on all counts.
He received a sentence of 100 months in prison for Count 1, to run concurrently with the 100-month
sentences he received for Counts 3, 4, and 5, and a sentence of 60 months for Count 2—to run
consecutively to the others—bringing the total sentence to 160 months in prison. R. 42 (Judgment
at 2). Leary also received a five-year term of supervised release. Leary appeals the denial of his
motion for a judgment of acquittal.
II. ANALYSIS
We review the denial of a motion for a judgment of acquittal de novo, “‘but [we] affirm[]
the decision if the evidence, viewed in the light most favorable to the government, would allow a
rational trier of fact to find the defendant guilty beyond a reasonable doubt.’” United States v.
Burchard, 580 F.3d 341, 352 (6th Cir. 2009) (quoting United States v. Solorio, 337 F.3d 580, 588
(6th Cir. 2003)). “[We] will not substitute [our] judgment for that of the jury.” Id. “‘A defendant
claiming insufficiency of the evidence bears a very heavy burden. Circumstantial evidence alone is
sufficient to sustain a conviction and such evidence need not remove every reasonable hypothesis
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except that of guilt.’” United States v. Fortson, 194 F.3d 730, 735 (6th Cir. 1999) (quoting United
States v. Vannerson, 786 F.2d 221, 225 (6th Cir. 1986)).1
Leary focuses his arguments on two main points. First he argues that there was insufficient
evidence to prove that he possessed the drugs with intent to distribute, and second he contends that
there was insufficient evidence to prove that he possessed the guns in the blue duffel bag in
furtherance of a drug trafficking crime. Under his theory, insufficient evidence of drug possession
would necessarily require the reversal of his convictions on Counts 1 and 2, and insufficient evidence
of gun possession would necessarily require the reversal of his convictions on Counts 2, 3, 4, and
5.
A. Possession Of The Drugs
“To sustain the charge of possession with intent to distribute, the government was required
to prove beyond a reasonable doubt that on or about [May 15, 2008, Leary] (1) knowingly; (2)
possessed a controlled substance; (3) with intent to distribute.” United States v. McGee, 529 F.3d
691, 696 (6th Cir. 2008) (internal quotation marks omitted). Leary argues that there was insufficient
evidence to prove that he was “trafficking or was possessing the drugs with the intent to traffic,”
1
When a defendant who makes a motion for a judgment of acquittal at the close of the
government’s case fails to renew that motion at the close of all the evidence, we ordinarily review
for “manifest miscarriage of justice.” United States v. Rodriguez, 882 F.2d 1059, 1063 (6th Cir.
1989). The government, however, has not raised this argument on appeal, and instead argues that
our review is de novo, thereby waiving any objection to the application of the ordinary standard of
review. See United States v. Tosh, 330 F.3d 836, 840 n.4 (6th Cir. 2003) (deeming an argument not
made by the government on appeal to have been waived); FED . R. APP . P. 28(b) (stating the
requirements of appellee’s brief and noting that “the statement of the standard of review” need not
appear “unless the appellee is dissatisfied with the appellant’s statement”).
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taking issue with the government’s use of Shane Ensminger in particular. Leary Brief at 20. To
support his arguments Leary points out that Easy and Branch both had access to the closet, and Easy
even kept some of his belongings there. Leary also observes that Ensminger had no personal
knowledge of the facts of Leary’s case and that there were “no indications of paraphernalia, no
smells, no cooking materials, no scales, no notebooks, no anything other than the simple existence
of 4 grams of rock cocaine in a closet shared by at least 2 people and used by 3 or 4.” Id. at 21. We
do not believe there is merit in these arguments.
“A conviction for possessing a controlled substance with intent to distribute can be based
upon a showing of actual or constructive possession.” United States v. Hill, 142 F.3d 305, 312 (6th
Cir. 1998). “Constructive possession requires evidence supporting the conclusion that the defendant
had the ability to exercise knowing dominion and control over the items in question.” United States
v. Wettstain, 618 F.3d 577, 586 (6th Cir. 2010) (internal quotation marks omitted). The ability to
exercise dominion and control over the drugs can be direct or through others. United States v.
Cobbs, 233 F. App’x 524, 534 (6th Cir. 2007). Furthermore, this element may be established by
evidence showing Leary’s proximity to the drugs combined with some other evidence—a specific
nexus—linking him to the drugs. See, e.g., id. (“While mere proximity to the drugs is not sufficient,
proximity combined with other evidence of the defendant’s involvement in a conspiracy to distribute
crack cocaine will suffice to establish possession.”). Additionally, we have emphasized that
constructive possession requires a specific intent, see United States v. Bailey, 553 F.3d 940, 945 (6th
Cir. 2009); a defendant must “‘knowingly ha[ve] the power and the intention at a given time to
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exercise dominion and control over an object, either directly or through others,’” United States v.
Hadley, 431 F.3d 484, 507 (6th Cir. 2005) (emphasis added) (quoting United States v. Kincade, 145
F.3d 771, 782 (6th Cir. 1998)); United States v. Newsom, 452 F.3d 593, 606 (6th Cir. 2006). Proof
that one knowingly and intentionally has dominion over the premises where the contraband is found
“is sufficient to establish constructive possession.” Kincaide, 145 F.3d at 782.
Here, there is sufficient circumstantial evidence to permit a reasonable jury to find that Leary
constructively possessed the crack cocaine found in the closet. First, it is clear that Leary knowingly
and intentionally exercised dominion over the premises because he and Luhman admitted that they
both lived in the apartment, and he further admitted that he kept his possessions on the left side of
the walk-in closet. The drugs were also found on his side of the closet, underneath his hats. Officers
Burnett and Muller both testified that Leary admitted that the hats, along with the men’s clothing and
the duffel bags on that side of the closet, were his. In addition, Luhman testified that she had seen
Leary in the past with crack cocaine in a small, plastic bag, just as it was found here. This is
sufficient to establish that Leary had the “ability to exercise knowing ‘dominion and control’” over
the drugs. Wettstain, 618 F.3d at 586 (internal quotation marks omitted); Cobbs, 233 F. App’x at
534. Furthermore, although it is clear that others, namely Easy and Branch, had access to the closet
and could have possessed the drugs, the focus of this inquiry is on whether the evidence, “‘viewed
in the light most favorable to the government, would allow a rational trier of fact to find the
defendant guilty beyond a reasonable doubt.’” Burchard, 580 F.3d at 352 (quoting Solorio, 337 F.3d
at 588). The evidence, we believe, meets this standard.
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B. Intent To Distribute
With respect to the issue of Leary’s intent to distribute the crack cocaine, a jury may infer an
intent to distribute from “the quantity and manner of packaging of the drugs, and the presence of
weapons and equipment (an electronic scale) for the sale of drugs.” United States v. Coffee, 434
F.3d 887, 897 (6th Cir. 2006). Regarding the quantity of the drugs, it should be “‘too large for
personal use alone.’” United States v. McCreary-Redd, 475 F.3d 718, 724 n.8 (6th Cir. 2007)
(quoting United States v. Jackson, 55 F.3d 1219, 1226 (6th Cir. 1995)). For example, the McCreary-
Redd court noted that we have found an intent to distribute from “28 packages of marijuana, totaling
32 grams and eight individual bags of cocaine base, totaling 7.6 grams,” see Coffee, 434 F.3d at 897,
one kilogram of cocaine, see United States v. Phibbs, 999 F.2d 1053, 1065–66 (6th Cir.1993), and
123.6 grams of cocaine, see United States v. Giles, 536 F.2d 136, 141 (6th Cir.1976). McCreary-
Redd, 475 F.3d at 724 n.8. Lastly, expert testimony may be used to provide evidence of an intent
to distribute. E.g., United States v. Chavis, 296 F.3d 450, 456 (6th Cir. 2002) (citing United States
v. Peters, 15 F.3d 540, 544–45 (6th Cir. 1994)).
We believe that the evidence is sufficient to permit a reasonable jury to find beyond a
reasonable doubt that Leary had an intent to distribute. The jury knew that Leary had possessed
several grams of crack cocaine that were broken into several pieces and were kept in a small plastic
bag. The jury heard Ensminger tell them that at that time, drug dealers in Lexington often sold
pieces of crack cocaine out of one bag, rather than individually wrapping each rock for sale. Leary
also had $448 in his possession when he was arrested, mostly in $20 bills; according to Ensminger,
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because a rock costs about $20, street-level drug dealers often carry numerous $20 bills. Moreover,
Luhman testified that in the time she lived with Leary, including the month or two right before his
May 15, 2008 arrest, she had never seen him use drugs, nor had she known him to have any
legitimate job. Finally, the jury knew that no paraphernalia associated with the use of crack cocaine
was found in the apartment, which Ensminger stated supported an inference of possession with intent
to distribute. We believe this evidence provides support for the jury’s verdict.
Running slightly counter to this view, however, are several facts that a reasonable jury could
view as indicating personal use, rather than an intent to distribute, or simply as holes in the
prosecution’s theory. First, the amount of drugs found, only 3.48 grams, is substantially smaller than
the amounts involved in the cases cited in McCreary-Redd. Yet Ensminger viewed this amount as
enough to indicate an intent to distribute. He noted, for example, that crack is commonly consumed
on a per-rock basis, with a rock consisting of approximately 200 milligrams of crack cocaine. Three-
and-a-half grams is commonly known as an “eight-ball” and can provide between fifteen and twenty
rocks. On the other hand, Burnett admitted that an eight-ball can be sold to an individual user.
These two pieces of testimony together demonstrate that Leary’s possession of an eight-ball could
indicate that he is either a user or a seller. Consequently, the amount of drugs found here does not
provide a dispositive basis for a finding either in favor of or against an intent to distribute.
Second, officers found no paraphernalia indicative of the sale or distribution of drugs, such
as scales or notebooks. This fact, however, does not prove that Leary did not intend to distribute the
drugs; it is merely a piece of evidence that the jury did not find persuasive. Moreover, possession
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of an eight-ball without any scales or notebooks could—as Ensminger testified—easily be taken as
a sign that Leary was a low-level drug dealer, one who was at the bottom of the distribution chain
but who was a drug dealer nonetheless.
Third, we have noted on numerous occasions that an intent to distribute can be seen where
drugs are individually wrapped for sale, rather than grouped in one bag. See, e.g., United States v.
Savoires, 430 F.3d 376, 378, 382 (6th Cir. 2005); United States v. Whitehead, 415 F.3d 583, 589 (6th
Cir. 2005); United States v. Harris, 192 F.3d 580, 583, 589 (6th Cir. 1999). These cases, of course,
indicate that this would be an easier case if the pieces of crack cocaine here had been individually
wrapped, but they do not establish that the lack of individual wrapping necessarily precludes a
finding of an intent to distribute. Indeed, as mentioned above, Ensminger testified that drug dealers
in Lexington at that time often kept multiple rocks in one bag and let the buyer pick the rock out of
the bag—a “buyer’s choice,” of sorts.
Fourth, and lastly, the proximity of the guns to the drugs is used by the government to make
a circular argument: that (1) the drugs must have been intended for distribution because they were
found near the guns, and (2) the guns must have been intended to facilitate drug trafficking because
they were found near the drugs. The circle is also drawn by case law. Compare Coffee, 434 F.3d
at 897 (stating that finding guns near drugs can indicate that the drugs were intended for
distribution), with United States v. Mackey, 265 F.3d 457, 460–61 (6th Cir. 2001) (stating that
finding guns near drugs can indicate that the guns were intended to facilitate drug trafficking). We
need not place any reliance on this argument, however, because the jury’s finding of an intent to
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distribute does not necessarily rest on the proximity of the guns to the drugs here. Rather, the
evidence mentioned above supplies a sufficient basis for the jury’s verdict, thereby warranting
affirmance.
For these reasons, we believe that a reasonable jury could base a finding of intent to distribute
on the evidence mentioned above, despite the other permissible interpretations available in this case.
We therefore affirm Leary’s conviction on Count 1.
C. Possession Of The Guns
Regarding the gun charges, Leary appears to challenge the sufficiency of the evidence that
he constructively possessed the guns found in the blue duffel bag. The law on constructive
possession described above in relation to the possession of drugs also applies to the possession of
firearms. The government must simply prove, using either direct or circumstantial evidence, that
“the defendant had the ability to exercise knowing ‘dominion and control’ over the items in
question.” Wettstain, 618 F.3d at 586 (internal quotation marks omitted). Dominion and control
over the premises where the item is found is acceptable, see Kincaide, 145 F.3d at 782, but where
evidence of a defendant’s mere presence near the guns is presented, there must also be some “‘other
incriminating evidence’, coupled with presence, . . . [that] serve[s] to tip the scale in favor of
sufficiency.” Bailey, 553 F.3d at 947 (quoting United States v. Arnold, 486 F.3d 177, 183 (6th Cir.
2007) (en banc)) (alterations in original). Bailey and Arnold provide good examples for comparison
to the present case. In Bailey, we found the mere fact that the defendant had been driving the car in
which a gun was found without any other passengers to be insufficient to establish constructive
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possession. 553 F.3d at 948–49. In Arnold, by contrast, the defendant had been sitting in the
passenger’s seat of a car, under which police found a gun, but there was also other evidence linking
the defendant to that gun: a witness had called 9-1-1 shortly before the arrest to report that the
defendant had just threatened her with a gun matching the description of the one found in the car.
486 F.3d at 181–82.
The evidence of constructive possession of firearms here is much more similar to the
evidence in Arnold. Not only were the guns found in the closet—an area over which Leary exercised
dominion and control, albeit shared—but Leary openly admitted that the blue duffel bag on the left
side of the closet in which the guns were found was his, as were all of the other items on the left side
of the closet. Furthermore, as in Arnold, Luhman had just reported to the police that Leary had
pointed a small, black gun matching the description of one of the guns found in the blue duffel bag
at her. She had also seen him take one of the assault rifles out of a duffel bag when he pointed a gun
at her in mid-April. This evidence goes beyond that found to be sufficient in Arnold, thereby
providing the district court with ample reason to deny Leary’s motion for a judgment of acquittal.
We therefore affirm this portion of the district court’s decision as it relates to Counts Two
through Five.
D. The “In Furtherance Of” Element
With respect to the requirement in Count Two that Leary have possessed the guns “in
furtherance of” a drug trafficking crime, we have held that “[t]he term ‘furtherance’ should be
understood in its ordinary or natural meaning, which . . . is ‘a helping forward: advancement,
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promotion.’ In other words, the weapon must promote or facilitate the crime.” Mackey, 265 F.3d
at 460–61 (internal citation omitted); see also Cobbs, 233 F. App’x at 535 (“A firearm is possessed
‘in furtherance of’ a drug trafficking offense if it advances, promotes or facilitates the crime.”).
“[T]he possession of a firearm on the same premises as a drug transaction would not, without a
showing of a connection between the two, sustain a § 924(c) conviction.” Mackey, 265 F.3d at 462.
“By requiring that the possession be ‘in furtherance of’ the crime, Congress intended a specific nexus
between the gun and the crime charged.” Id. “In order for the possession to be in furtherance of a
drug crime, the firearm must be strategically located so that it is quickly and easily available for use.
. . . Other factors that may be relevant . . . include whether the gun was loaded, the type of weapon,
the legality of its possession, the type of drug activity conducted, and the time and circumstances
under which the firearm was found.” Id. On the other hand, we have distinguished the “in
furtherance of” prong from the “during and in relation to” prong also contained in § 924(c) by
holding that the “in furtherance of” prong “requires the government to prove a defendant used the
firearm with greater participation in the commission of the crime or that the firearm’s presence in
the vicinity of the crime was something more than mere chance or coincidence.” United States v.
Combs, 369 F.3d 925, 933 (6th Cir. 2004).
We believe that the evidence in this case is insufficient to permit a reasonable jury to find that
Leary possessed the guns in the blue duffel bag “in furtherance of” drug trafficking. The strongest
point in favor of such a finding is that the guns were in the closet where the drugs were found, but
as Mackey makes clear, this proximity alone is not enough to establish that the guns were possessed
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“in furtherance of” drug trafficking; there must be evidence tending to show “a connection between
the two.” Mackey, 265 F.3d at 462. The government argues that the presence of the guns in the
closet with the drugs shows that the guns were “strategically located so that [they were] quickly and
easily available for use,” id., but it cannot be true that any time a gun is found near drugs it is
necessarily the result of a strategic decision relating to drug activity. Indeed, the guns and the drugs
were found in a closet—a storage space, rather than a place from which drugs were sold. Acceptance
of the government’s argument would render meaningless the requirement that the government show
that “a defendant used the firearm with greater participation in the commission of the crime or that
the firearm’s presence in the vicinity of the crime was something more than mere chance or
coincidence.” Combs, 369 F.3d at 933.
Furthermore, we cannot say that the Mackey factors permit a finding that the guns were
possessed in furtherance of a drug trafficking crime. First, two of the guns in the blue duffel bag
were unloaded. Additionally, “the type of drug activity conducted,” see Mackey, 265 F.3d at 462,
was not very substantial, with the amount of drugs involved—3.48 grams—being commonly in
possession of both users and dealers. “[T]he time and circumstances in which the guns were found,”
id., is also unhelpful. There is no evidence that any drug sales took place in Luhman’s apartment,
much less in the closet connected to the bedroom, nor was any drug manufacturing equipment found
on the premises.
That leaves only “the type of weapon” and “the legality of its possession.” With respect to
the type of weapon, Ensminger testified that “[y]ou’ll find firearms, handguns and regular guns more
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commonly with a trafficker than you will a user,” but this testimony helped to establish only that the
presence of guns indicated that the drugs were intended for distribution, and that drug dealers often
need to protect themselves from other drug dealers and those who seek the money that drug dealers
usually keep in their possession. R. 55–56 (Trial Tr. 128–29). It does not establish a “specific
nexus” between these guns and the small amount of drugs found here; instead, it establishes only a
general one, suggesting that drug dealers generally possess guns for protection from drug users and
other drug dealers, not that the guns in this case were possessed for such drug-dealing-related
protection. See United States v. Nance, 40 F. App’x 59, 67 (6th Cir. 2002) (unpublished opinion)
(holding that a drug-agent’s testimony “that drug traffickers usually have guns to facilitate
trafficking” does not establish “specific facts linking [the] guns to the drugs found on [the
defendant’s] person”). There was no testimony to illuminate for the jury whether these particular
weapons were likely present to facilitate drug trafficking. Similarly, there was no testimony linking
Leary’s unlawful possession of these weapons to the “specific nexus” needed to prove the facilitation
of drug trafficking.
In several of our prior cases, a “strategic[] locat[ion]” of a gun can be seen where the
positioning and location of the gun is uniquely helpful to the defendant’s desire potentially to use
the guns to protect against drug-activity-related threats. See, e.g., United States v. Swafford, 385
F.3d 1026, 1029 (6th Cir. 2004) (noting that “[t]he gun was found loaded, with its handle pointing
up, within arm's reach of the bed where [the defendant] was lying”); United States v. Paige, 470 F.3d
603, 609–10 (6th Cir. 2006) (finding a “specific nexus” where “two loaded firearms were found
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under a cushion and next to the couch in the duplex from which crack was being sold at all hours of
the day and night and in which the officers found crack cocaine, $900 cash, and digital scales with
cocaine residue”); United States v. Lengen, 245 F. App’x 426, 435–36 (6th Cir. 2007) (finding a
“specific nexus” where one gun was found “in the headboard of defendant’s bed, only three or four
feet from the wall safe in which police found $25,000 in cash and a substantial amount of
methamphetamine,” and another was found “in a drawer in the defendant's office, either together
with or very close to a supply of cocaine and other scheduled drugs”); United States v. Ham, 628
F.3d 801, 804, 808–09 (6th Cir. 2011) (finding a “specific nexus” where a loaded gun “was located
about head-high on top of an armoire situated just outside the closet where the drugs were found”
and in which the defendant was hiding when the police found him). A “specific nexus” can also be
seen where the guns are simply located throughout the house, which may itself possibly be a strategic
decision. See, e.g., United States v. Penney, 576 F.3d 297, 315 (6th Cir. 2009) (finding a “specific
nexus” where guns were “placed throughout [the defendant’s] residence,” with several weapons next
to $1,300 in cash).
Beyond whether the guns were “strategically located,” a “specific nexus” is sometimes seen
where the premises in which the guns and drugs are found is one in which drugs are sold or
manufactured, thereby enhancing the inference that guns found on that premises may be “in
furtherance of” the drug activity; this is especially true where the house is used only for drug activity,
and not as a residence. See, e.g., United States v. Whitehead, 415 F.3d 583, 585–86, 589–90 (6th
Cir. 2005) (finding a “specific nexus” where drugs were sold out of the house in which the gun was
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United States v. Leary
found, the house was “unfit for habitation,” and the defendant was found with drugs on his person);
Paige, 470 F.3d at 609–10 (finding a “specific nexus” where “two loaded firearms were found under
a cushion and next to the couch in the duplex from which crack was being sold at all hours of the
day and night and in which the officers found crack cocaine, $900 cash, and digital scales with
cocaine residue”); United States v. Couch, 367 F.3d 557, 561 (6th Cir. 2004) (finding a “specific
nexus” where “a loaded assault rifle was in plain view at the location where the officers arrested [the
defendant],” and “the police located an additional eleven guns in [the defendant’s] garage—the area
where [the defendant’s] drug transactions were known to occur and where the officers located over
200 additional pills”).
A “specific nexus” between guns and drugs located on the same premises can also be seen
where there is evidence that the defendant had actual possession of a gun while committing a drug-
trafficking crime. See, e.g., United States v. Street, 614 F.3d 228, 236 (6th Cir. 2010) (finding a
“specific nexus” where the defendant had the gun on his person while selling drugs); United States
v. Brooks, No. 08-2514, 2010 WL 4781421, at *8 (6th Cir. Nov. 17, 2010) (unpublished opinion)
(finding a “specific nexus” where the defendant had a gun on his person and others testified that the
defendant carried a gun while selling drugs, and other guns were found on the premises at which
drug activity took place). Additionally, a “specific nexus” can be seen in situations in which there
is a large amount of drugs or money present, such that the very existence of these items on the
premises may be seen to warrant a gun for protection. See, e.g., Penney, 576 F.3d at 315 (noting that
guns were found near $1,300 in cash); Lengen, 245 F. App’x at 435–36 (noting that guns were found
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United States v. Leary
near “$25,000 in cash and a substantial amount of methamphetamine”). In all of these situations,
the evidence permitted an inference that the guns must have been used to protect the defendant or
otherwise to facilitate a drug crime.
Here, the trial evidence does not permit the same inference. The guns were found in a duffel
bag in the closet, not on Leary’s person or easily within his reach. There is no evidence that the sale
or manufacture of drugs occurred within Luhman’s apartment. There is no evidence that Leary
possessed a gun any time that Luhman saw him with drugs, and the amount of drugs and cash here
was relatively small. We are left, then, with nothing more than the fact that the guns were found in
a duffel bag near a relatively small amount of drugs in an apartment in which multiple people lived
and in which there is no other evidence indicating that the guns were possessed to facilitate or
promote drug trafficking. In such circumstances, we cannot say that a reasonable jury could find that
the “in furtherance of” element was proved beyond a reasonable doubt; there is no evidence that
would meaningfully indicate that the guns were present to facilitate drug trafficking. We therefore
reverse Leary’s conviction on Count Two.
III. CONCLUSION
For the reasons stated above, we AFFIRM Leary’s convictions on Counts One, Three, Four,
and Five, and we REVERSE Leary’s conviction on Count Two. We REMAND for further
proceedings in accordance with this opinion.
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