United States v. Couch

Opinion

RECOMMENDED FOR FULL-TEXT PUBLICATION Pursuant to Sixth Circuit Rule 206 2 United States v. Couch No. 03-5109 ELECTRONIC CITATION: 2004 FED App. 0133P (6th Cir.) File Name: 04a0133p.06 Kentucky, Roger West, ASSISTANT UNITED STATES ATTORNEY, London, Kentucky, for Appellee. UNITED STATES COURT OF APPEALS _________________ FOR THE SIXTH CIRCUIT OPINION _________________ _________________

UNITED STATES OF AMERICA , X BOYCE F. MARTIN, JR., Circuit Judge. Ronald Couch appeals his jury conviction and sentence for distribution of Plaintiff-Appellee, - Oxycontin in violation of 21 U.S.C. § 846 and possession of - - No. 03-5109 a firearm during and in furtherance of a drug trafficking crime v. - in violation of 18 U.S.C. § 924(c). For the reasons that > follow, we AFFIRM. , RONALD COUCH , - I. Defendant-Appellant. - N During 2001, the Kentucky State Police began investigating Appeal from the United States District Court the activities of Roy Couch (Ronald Couch’s nephew) after for the Eastern District of Kentucky at London. learning that he was involved in the distribution of Oxycontin. No. 02-00006—Karen K. Caldwell, District Judge. The police made controlled buys of Oxycontin from Jamie Fields and Randall Napier. During these transactions, the Submitted: March 11, 2004 police learned that Roy Couch supplied Oxycontin to Fields and Napier for sale. Additionally, the police made controlled Decided and Filed: May 10, 2004 buys directly from Roy Couch as well as Vernon Todd Jelly. The police investigation revealed that Roy Couch obtained Before: MARTIN, CLAY, and CUDAHY, Circuit Judges.* Oxycontin from an individual in Saul, Kentucky. Upon Roy Couch’s arrest, Jelly began buying Oxycontin directly from _________________ Ronald Couch (“Couch”). With Jelly’s consent, the police searched his home and found Oxycontin. An interview with COUNSEL Jelly revealed that Couch had supplied Jelly with the Oxycontin from his home in Saul, Kentucky. ON BRIEF: Elizabeth Ann Cure, COLMAN & CURE, Bloomington, Indiana, for Appellant. Charles P. Wisdom, Jr., Following this interview, the police sought, received and ASSISTANT UNITED STATES ATTORNEY, Lexington, executed a warrant to search Couch’s home. When the police entered the home, they found Couch in his living room carrying six Oxycontin pills wrapped in aluminum foil and 2.295 grams of methamphetamine on his person and * The Honorab le Richard D. Cudahy, Circuit Judge of the United immediately arrested him. Nearby, the police discovered a States Court of Appeals for the Seventh Circuit, sitting by designation.

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loaded assault rifle in plain view on top of a cabinet. In a II. corner of Couch’s garage, the police discovered over $10,000 in cash and a loaded Smith & Wesson .357 caliber handgun–a On appeal, Couch argues that the district court erred in weapon that the police knew to be commonly associated with denying his motion to suppress the evidence found in his drug trafficking crimes. Elsewhere in Couch’s garage, the home. Specifically, he contends that the police lacked police discovered over 200 pills wrapped in aluminum probable cause to obtain a search warrant because the foil–including Zantac, Lorcet and other Schedule III pain affidavit filed by the police failed to show that Jelly was a killers–as well as nine shotguns and rifles. A search of reliable informant and the police failed to adequately and Couch’s vehicle revealed another loaded shotgun. independently corroborate the information that Jelly had provided. Additionally, Couch argues that there was On September 25, 2001, a multi-count indictment was insufficient evidence supporting his firearms conviction for issued against Couch, along with Roy Couch, Jelly, Greg violating 18 U.S.C. § 924(c). We find these arguments Hamblin, Napier and Fields. The grand jury specifically unpersuasive. charged Ronald Couch with conspiring to possess with the intent to distribute, and distributing, Oxycontin in violation of A. 21 U.S.C. §846, possession with the intent to distribute Oxycontin, methamphetamine, and hydrocodone in violation First, we address Couch’s argument that the district court of 21 U.S.C. § 841(a)(1), and possession of firearms in erred in denying his motion to suppress evidence. In furtherance of a drug trafficking crime in violation of reviewing a district court’s denial of a motion to suppress 18 U.S.C. § 924(c)(1). Additionally, pursuant to 21 U.S.C. evidence, we employ a two-fold standard of review. That is, § 853, a forfeiture charge was issued against Couch for the we uphold the district court’s factual determinations unless $10,466 in currency and twelve firearms found in his home. clearly erroneous, but we review the district court’s legal conclusions, such as the existence or absence of probable On November 21, 2001, Couch filed a motion to suppress cause, de novo. United States v. Carpenter, 360 F.3d 591, the evidence seized at his home, arguing that the search 594 (6th Cir. 2004). “‘When reviewing the denial of a motion warrant was unsupported by probable cause. The district to suppress, we must consider the evidence in the light most court denied the motion on April 25, 2002, after hearing favorable to the government.’” United States v. Rodriguez- arguments on the issue and requesting additional memoranda Suazo, 346 F.3d 637, 643 (6th Cir. 2003) (quoting United regarding the sufficiency of the affidavit supporting the States v. Garza, 10 F.3d 1241, 1245 (6th Cir. 1993)). search warrant. On May 13, Couch made an additional motion to suppress the evidence found at his home, which the “To justify a search, the circumstances must indicate why district court denied on May 15. On May 20, a jury found evidence of illegal activity will be found ‘in a particular Couch guilty on all counts contained in the indictment. place.’ There must, in other words, be a ‘nexus between the Couch was sentenced to six years imprisonment on each of place to be searched and the evidence sought.’” Carpenter, his drug convictions, to be served concurrently, as well as five 360 F.3d at 594 (quoting United States v. Van Shutters, 163 years imprisonment on his firearms conviction, to be served F.3d 331, 336-37 (6th Cir. 1998)). Consistent with the consecutively–for a total of eleven years imprisonment. This preference that searches are conducted pursuant to a search timely appeal followed. warrant, however, this Court affords “great deference” to the magistrate’s probable cause determination. Rodriguez-Suazo, No. 03-5109 United States v. Couch 5 6 United States v. Couch No. 03-5109

346 F.3d at 643. The relevant inquiry becomes whether “‘the B. magistrate had a substantial basis for finding that the [supporting] affidavit established probable cause to believe Second, we review Couch’s argument that insufficient that the evidence would be found at the place cited.’” Id. evidence supported his firearms conviction for violating (quoting United States v. Davidson, 936 F.2d 856, 859 (6th 18 U.S.C. § 924(c). This Court, in reviewing a claim of Cir. 1991)). Probable cause, while “incapable of precise insufficient evidence, must examine the evidence most definition or quantification into percentages,” Maryland v. favorable to the United States and determine whether “any Pringle, 124 S.Ct. 795, 800 (2003), exists when from the rational trier of fact could have found the elements of the “totality of the circumstances” there exists a “fair probability” offense beyond a reasonable doubt.” United States v. Davis, that fruits of a criminal activity will be located within the 306 F.3d 398, 408 (6th Cir. 2002) (internal quotation marks premises to be searched, Rodriguez-Suazo, 346 F.3d at 644. omitted).

In this case, the information contained in the affidavit Section 924(c) provides: supporting the search warrant was not that of an “uncorroborated tip of an unknown informant.” United States [A]ny person who, during and in relation to any crime of v. Perkins, 994 F.2d 1184, 1188 (6th Cir. 1993). The violence or drug trafficking crime . . . for which the informant’s identity, Jelly, was known to the officers and person may be prosecuted in a court of the United States, because Jelly was named in the affidavit, he could potentially uses or carries a firearm, or who, in furtherance of any be held accountable for providing false information.1 Jelly such crime, possesses a firearm, shall, in addition to the provided an account of Couch’s criminal activities based punishment provided for such crime of violence or drug upon his relationship and personal experience with Couch. trafficking crime - - Jelly’s veracity was immediately evident in that the information he provided coincided with what the police had (i) be sentenced to a term of imprisonment of not less already learned from its investigation of Roy Couch. Thus, than 5 years. we conclude that the magistrate had a “substantial basis for concluding that a search of [Couch’s] home would uncover 18 U.S.C. § 924(c)(1)(A) (emphasis added). In order to prove evidence of wrongdoing,” United States v. Miller, 314 F.3d that a defendant has violated section 924(c), the United States 265, 271 (6th Cir. 2002), and accordingly find Couch’s first must prove that the “‘firearm was possessed to advance or argument unpersuasive. Cf. Carpenter, 360 F.3d at 594-97 promote the commission of the underlying crime.’” United (finding that the affidavit supporting the search warrant did States v. Mackey, 265 F.3d 457, 461 (6th Cir. 2001) (quoting not contain sufficient facts to support the probable cause H.R. REP. NO . 105-344 (1997), 1997 WL 668339, at *11-12). determination, but applying the “good faith exception” to the That is, the United States must prove a “nexus between the exclusionary rule). gun and the crime charged.” Id. at 462. Although possession of a firearm in the same premises as the drug trafficking activities alone is insufficient to support a conviction under section 924(c), a jury can reasonably infer that firearms which are strategically located so as “to provide defense or 1 Kentucky Revised Statutes § 519.040(1)(d) makes it a Class A deterrence in furtherance of the drug trafficking” are used in misdemeanor to “knowingly give[] false information to any law furtherance of a drug trafficking crime. See id. at 462-63. enforcement officer with intent to implicate another.” No. 03-5109 United States v. Couch 7

In this case, as discussed, a loaded assault riffle was in plain view at the location where the officers arrested Couch. Moreover, the police located an additional eleven guns in Couch’s garage–the area where Couch’s drug transactions were known to occur and where the officers located over 200 additional pills. Furthermore, the officers testified that at least one of the particular firearms discovered–the Smith & Wesson handgun–is commonly associated with drug trafficking crimes. Considering the foregoing, we conclude that any rational trier of fact could have concluded that the United States proved the elements of the crime beyond a reasonable doubt. Accordingly, we AFFIRM the judgment of the district court.