United States v. Craig James Marr

• Court: Court of Appeals for the Sixth Circuit
• Decided: September 26, 2023
• Docket: 22-1104
• Status: Unpublished

Opinion

NOT RECOMMENDED FOR PUBLICATION File Name: 23a0414n.06

Case No. 22-1104 FILED UNITED STATES COURT OF APPEALS Sep 26, 2023 FOR THE SIXTH CIRCUIT DEBORAH S. HUNT, Clerk

) UNITED STATES OF AMERICA, ) Plaintiff-Appellee, ) ) ON APPEAL FROM THE v. ) UNITED STATES DISTRICT ) COURT FOR THE WESTERN CRAIG JAMES MARR, ) DISTRICT OF MICHIGAN Defendant-Appellant. ) ) OPINION

Before: GRIFFIN, STRANCH, and DAVIS, Circuit Judges.

DAVIS, Circuit Judge. While Craig Marr was on parole for a state murder conviction, a

police officer received a tip that he had illegal drugs and a gun. Based on the tip, authorities

stopped Marr’s vehicle and searched him. They found a loaded pistol in his waistband, after which

Marr admitted that he also had another loaded magazine and a bag of drugs on his person. Officers

retrieved the loaded magazine at the scene and, after arresting Marr and transporting him to jail,

retrieved a baggie of methamphetamine from his underwear. The arrest led to an indictment

charging Marr with being a felon in possession of a firearm, as well as possession with intent to

distribute methamphetamine and possession of a firearm in furtherance of a drug-trafficking crime.

Before trial, Marr moved to suppress the gun, ammunition, and drugs, claiming that both

the stop and the search violated his rights under the Fourth Amendment. He also filed motions

seeking to preclude a government agent from offering opinion testimony about the drug trade. The

district court denied both pretrial motions. And a jury later convicted Marr on all three counts. He No. 22-1104 , United States v. Marr

now appeals, renewing his challenges to the search and seizure and to the admission of the agent’s

opinion testimony. He also claims that the government’s evidence at trial was insufficient for a

jury to convict him of possession with intent to distribute and possession of a firearm in furtherance

of drug trafficking.

Because the officers’ stop and search of Marr was reasonable under the totality of the

circumstances, the district court reasonably found that the agent’s anticipated testimony would

help the jury, and sufficient evidence supports Marr’s convictions, we AFFIRM the district court’s

judgment.

I.

After serving 20 years in state prison for a second-degree-murder he committed as a

teenager, Marr was released on parole in September 2020. Following his release, Marr returned

to his hometown of Lansing, Michigan. About seven months later, in April of 2021, a confidential

informant (“CI”) advised John Cosme, a Lansing police officer, that Marr was selling drugs and

was often seen with a firearm. The CI also told Cosme that Marr was on parole, which Cosme

verified. After this initial contact from the CI, but before Marr’s arrest in this case, Cosme stopped

Marr for a traffic violation. During this initial stop, Marr also informed Cosme that he was on

parole.

Subsequently, in the late hours of April 27 or the early hours of April 28, 2021, the same

CI called Cosme and told him that he had seen Marr with a firearm and methamphetamine. Cosme

and at least one other Lansing police officer followed up by traveling in unmarked vehicles to the

location provided by the CI. The officers saw Marr get into his car and start driving. “Based on

the information” and “the parole history,” the officers decided to conduct “a dynamic contact,”

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i.e., block Marr’s vehicle so he could not flee. (R. 30, Suppression Hrg. Tr., PageID.106.) Police

officers and Michigan State Police troopers effectuated the stop.

A state trooper searched Marr and found a loaded handgun tucked in his waistband. After

placing Marr in a patrol car, the trooper asked Marr if he had anything else on him. Marr confessed

to having a magazine for a firearm in his pants, which the trooper recovered, and a “little bag of

dope.” Once Marr was taken to jail, authorities discovered a baggie hidden between layers of his

clothing; the baggie contained 21.5 grams of crystal methamphetamine.

In May 2021, a federal grand jury indicted Marr on three counts: (1) felon in possession of

a firearm, (2) possession with intent to distribute methamphetamine, and (3) possession of a

firearm in furtherance of a drug trafficking crime.

Marr filed two pretrial motions relevant to this appeal. First, he moved to suppress the

firearm, magazine, and methamphetamine on the grounds that the search and seizure violated the

Fourth Amendment. The district court, primarily relying on a condition in Marr’s parole order

that permitted “peace officer[s]” to search him “upon demand” and relevant case law, found that

the officers’ search of Marr did not violate the Fourth Amendment. Marr also filed a motion to

exclude the opinion testimony of DEA Special Agent Melissa Kazik under Federal Rules of

Evidence 702 and 403. Marr contended that Kazik’s anticipated testimony about the cash-based

and violent nature of the drug trade, including the use of firearms, would not be helpful to the

jurors because such information is common knowledge. The district court disagreed and permitted

Kazik to testify.

At trial, Marr’s defense was that he carried the firearm for self-protection and that the

methamphetamine he possessed was for personal use. But Kazik and a Lansing police officer

opined that 21.5 grams of methamphetamine was not consistent with personal use. Kazik also

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testified that drug users, as opposed to drug dealers, would typically sell a firearm or trade it for

additional drugs. In the end, the jury convicted Marr of all three counts.

II.

On appeal, Marr raises three claims of error. First, he says that the district court erred in

denying his motion to suppress. Second, he asserts that the district court abused its discretion in

permitting Kazik to testify about drug trafficking. Third, he argues that there was insufficient

evidence for a jury to convict him of possession with intent to distribute methamphetamine or

possession of a firearm in furtherance of that drug-trafficking crime.

We address these arguments in turn.

A.

“In reviewing the denial of a motion to suppress, we review legal questions de novo and

the district court’s factual findings for clear error.” United States v. Sharp, 40 F.4th 749, 752

(6th Cir. 2022) (quoting United States v. Cooper, 24 F.4th 1086, 1090–91 (6th Cir. 2022)). And

we view the evidence in the light most favorable to the government. Id.

Fourth Amendment Search and Seizure. Marr argues that the police officers stopped and

searched him without reasonable suspicion of the commission of a crime and without knowledge

of his parole search condition. Marr does not dispute that in his parole order, he agreed to “on

demand” searches by police officers. But he argues that Officer Cosme was not aware of that

parole condition before authorities stopped and searched him, so the parole condition did not

render their search and seizure reasonable under the Fourth Amendment.

Regardless of whether Cosme was aware of the search condition prior to conducting the

traffic stop, the district court did not err in denying Marr’s motion to suppress. We thus find it

unnecessary to address the broader question of whether the existence of the parole condition alone

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sufficed to justify the search. This is because under the totality of circumstances, both the stop

and the search were reasonable under the Fourth Amendment.

“Although the Fourth Amendment ordinarily requires the degree of probability embodied

in the term ‘probable cause,’ a lesser degree satisfies the Constitution when the balance of

governmental and private interests makes such a standard reasonable.” United States v. Knights,

534 U.S. 112, 121 (2001). Due to his status as a parolee, Marr’s liberty was restricted. And even

if Cosme did not know of Marr’s search condition, he certainly knew Marr was a parolee. So

instead of the typical probable-cause analysis, we employ the totality-of-circumstances approach

here. See United States v. Smith, 526 F.3d 306, 308 (6th Cir. 2008) (“[T]he warrant and probable

cause requirements generally do not apply to searches of parolees, probationers or their

residences.”). Under this approach, we “assess[], on the one hand, the degree to which” the search

intruded upon Marr’s privacy “and, on the other, the degree to which [the search was] needed for

the promotion of legitimate governmental interests.” Samson v. California, 547 U.S. 843, 848

(2006) (quoting Knights, 534 U.S. at 119).

First consider Michigan’s legitimate interests. “[A] State’s interests in reducing recidivism

and thereby promoting reintegration and positive citizenship among probationers and parolees

warrant privacy intrusions that would not otherwise be tolerated under the Fourth Amendment.”

Id. at 853 (“[A] State has an ‘overwhelming interest’ in supervising parolees because ‘parolees . . .

are more likely to commit future criminal offenses.’” (quoting Pa. Bd. of Prob. & Parole v. Scott,

524 U.S. 357, 365 (1998)). Without question, Michigan had an interest in supervising Marr,

specifically. To begin, Cosme knew that Marr was a parolee for a homicide. Further, a CI who

had (1) completed the Lansing Police Department’s credibility protocol, (2) provided the

Department with reliable information in the past, (3) provided specific information about Marr that

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Cosme had corroborated, and (4) twice informed Cosme that he had seen Marr with a firearm and

crystal methamphetamine—most recently, on the day of the stop. As Cosme explained, “[b]ased

on the information, based on the parole history, we decided to do a dynamic contact, which means

blocking the vehicle from having the opportunity to flee.” (R. 30, Suppression Hrg. Tr.,

PageID.106.)

On the other side of the scale, Marr’s expectation of privacy was “severely diminished.”

Samson, 547 U.S. at 852. In Samson, the Supreme Court noted that California parolees’ liberty

can be restricted not only by the suspicionless search condition at issue in that case but also in

several other ways, including “mandatory drug tests, restrictions on association with felons or gang

members,” “mandatory meetings with parole officers,” employment updates, limits on travel, and

restrictions on the possession of weapons. Id. at 851–52. “The extent and reach of these

conditions,” the Supreme Court explained, “clearly demonstrate that parolees like petitioner have

severely diminished expectations of privacy by virtue of their status alone.” Id. at 852. Marr was

subject to similar parole conditions: he had to comply with drug testing as ordered by his parole

officer, he could not associate with people with a felony conviction, he had to meet with his parole

officer, he could not change employment without permission from his parole officer, he could not

travel outside of Michigan without permission, and he could not possess a firearm or use any object

as a weapon. Thus, Marr had a “severely diminished expectation[] of privacy by virtue of [his]

status [as a parolee] alone.” Id.

On balance, the officers’ search of Marr was not an unreasonable search or seizure

prohibited by the Fourth Amendment—even if Cosme was unaware of Marr’s on-demand search

condition.

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In resisting this result, Marr suggests that this is a “reverse stalking horse” scenario. In a

traditional stalking-horse scenario, police use a parole officer’s authority to conduct a search to

circumvent the warrant requirement and further their own investigation. See United States

v. Goliday, 145 F. App’x 502, 505 (6th Cir. 2005) (collecting cases). Marr’s argument is not

entirely clear, but to the extent he contends that this is a reverse stalking horse scenario because

the police (as opposed to the parole agent) conducted the search using Marr’s parole conditions it

fails.

There was no subterfuge here. As explained, irrespective of whether Cosme knew about

the search condition, the record clearly shows that he was aware of Marr’s parole status and

possessed concerning information from a reliable CI that Marr possessed narcotics and a gun—

items which are illegal for parolees to possess. The authorities therefore did not use any type of

subterfuge to stop and search Marr and this argument does not undermine our conclusion that the

search was reasonable under the totality of the circumstances.

In sum, we affirm the district court’s denial of Marr’s motion to suppress.

B.

Use of Opinion Testimony. Relying primarily on Federal Rule of Evidence 702(a), Marr

also claims that the district court erred in permitting DEA Special Agent Melissa Kazik to offer

opinion testimony about drug trafficking and the use of firearms by drug dealers. Under Rule

702(a), “[a] district court may commit manifest error” by admitting expert opinion testimony that

is within “the ken of the average juror.” United States v. Rios, 830 F.3d 403, 413 (6th Cir. 2016)

(quoting United States v. Amuso, 21 F.3d 1251, 1263 (2d Cir. 1994)). In Marr’s view, jurors

already know the basics of the drug trade thanks to its depictions in pop culture. He further

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contends that it is common sense that people do not write checks to buy drugs and that dealers

protect their inventory with guns.

“We review for abuse of discretion the district court’s determination to admit or exclude

expert testimony.” Id. at 413 (quoting In re Scrap Metal Antitrust Litig., 527 F.3d 517, 528 (6th

Cir. 2008)).

The district court was within its discretion in permitting Kazik to testify that the amount of

methamphetamine Marr possessed was more consistent with drug dealing than personal use. At

the final pretrial conference, Marr indicated to the district court that he would attempt to persuade

the jury that he possessed only a user-level amount of methamphetamine. Yet he did not direct

the district court’s attention to any evidence demonstrating that the average juror would know

whether 21.5 grams of methamphetamine is a personal-use or a dealer amount. Considering

Marr’s anticipated defense at trial, therefore, the district court reasonably concluded that Kazik

would be allowed to testify about “intent to distribute amounts, user amounts, etcetera.” (R. 52,

Final Pretrial Hrg. Tr., PageID.335.) Officer testimony on the characteristics of criminal activity

is allowable if it will help the trier of fact to understand the evidence and “appropriate cautionary

instructions are given.” United States v. Swafford, 385 F.3d 1026, 1030 (6th Cir. 2004) (quoting

United States v. Thomas, 99 F. App’x 665, 668–69 (6th Cir. 2004)). In keeping with that principle,

we have “routinely allow[ed] qualified law enforcement officials to testify that circumstances are

consistent with drug distribution rather than personal use.” United States v. Ham, 628 F.3d 801,

805 (6th Cir. 2011) (quoting United States v. Alford, 332 F. App’x 275, 282 (6th Cir. 2009)). The

district court, therefore, did not err in permitting this testimony.

As for Kazik’s testimony about the connection between firearms and drug trafficking, we

have likewise indicated that this type of testimony is helpful to a jury. In Swafford, we held that

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it was not plain error for an agent to testify that “drug dealers carry firearms for intimidation and

protection of their product.” 385 F.3d at1030. In doing so, we noted that most courts had “taken

a very tolerant view of the admissibility of expert testimony linking the presence of firearms to

drug trafficking activities.” Id. (quoting United States v. Thomas, 99 F. App’x 665, 669 (6th Cir.

2004)). We recently reached the same conclusion in United States v. Simpson, 845 F. App’x 403,

410 (6th Cir. 2021).

Marr acknowledges this precedent but argues that Swanson is outdated and that Simpson is

distinguishable. He points out that in Simpson, unlike here, the gun was not found on the

defendant’s person, so opinion testimony linking the gun and drugs was helpful to the jury. And

he suggests that the age of the Swanson decision weakens its persuasive value here; noting that it

is over a decade old, he posits that “in the age of the internet and reality TV” the knowledge of

would-be jurors advances at “supersonic speed.” (Appellant’s Br. at 26.)

Perhaps Marr is correct that these days, many potential jurors know that drug traffickers

use guns. But that is not our call to make in the first instance. And here—although not directly

referring to Kazik’s potential testimony about firearms—the district court explained that drug

trafficking protocols are not “within the normal parlance of an average juror.” (R. 52, Final Pretrial

Hrg. Tr., PageID.335.) Even if that determination is debatable, it was not an abuse of discretion.

That said, it is reasonable to question whether the government offered enough details for

the district court to make an informed ruling about how helpful Kazik’s anticipated testimony

would be. In responding to Marr’s motion in limine to exclude Kazik’s testimony, the government

essentially told the district court that Kazik would testify that guns are tools of the trade for drug

traffickers. That rudimentary information is not very helpful to a jury.

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But any error at the motion in limine stage proved harmless. See United States v. Hunt, 63

F.4th 1229, 1244–45, 1249 (10th Cir. 2023) (finding that even if the district court erred when

ruling on a pretrial motion to exclude expert testimony, reversal was not required because, given

the expert’s trial testimony, the error was harmless). At trial, Kazik did not merely tell the jury

that drug traffickers use guns. She also informed the jury that if a drug user obtained a firearm, he

or she typically would sell, pawn, or trade it for drugs, whereas drug dealers would use firearms

to protect themselves, their drugs, and their drug proceeds. By contrasting how drug users and

drug dealers use guns, Kazik went beyond the basics and offered testimony that helped the jury

“understand the evidence” or “determine a fact in issue.” Fed. R. Evid. 702(a).

Two of Marr’s counterarguments warrant brief discussion. First, Marr says our precedents

establish that the connection between guns and drug trafficking is nuanced and implies that opinion

testimony is only helpful if it is similarly nuanced. But the cases Marr cites do not address the

issue before us: what type of testimony aids a jury’s understanding of how firearms are used in the

drug trade. Cf. United States v. Jackson, 877 F.3d 231, 234, 237 (6th Cir. 2017) (describing factors

that bear on whether a firearm was used “in connection with” a felony for purposes of a sentencing

enhancement); United States v. Shields, 664 F.3d 1040, 1044–45 (6th Cir. 2011) (same); United

States v. McKenzie, 410 F. App’x 943, 945–46 (6th Cir. 2011) (same); United States v. Ray, 803

F.3d 244, 263 (6th Cir. 2015) (describing factors that bear on whether there is sufficient evidence

to support that a firearm was used “in furtherance of” a drug-trafficking crime). To the extent that

these cases suggest arguments by analogy, as explained, Kazik’s testimony about firearms and

drug trafficking turned out to be sufficiently nuanced.

Next, Marr argues that Kazik simply presented the government’s theory of the case under

the guise of expert testimony. We disagree. As an initial matter, the cases Marr cites illustrating

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this improper use of expert testimony are not like this one. In Rios, we noted that by permitting

testimony from a government expert, the district court “ran the risk” that the expert would

“transform into the hub of the case,” connecting the government’s evidence to create a coherent

picture for the jury. 830 F.3d at 416 (citation and brackets omitted). But the agent in Rios strayed

from testifying based on his expertise and personal investigation into testifying about specific

criminal acts of the defendants’ gang. Id. at 415–16. In contrast, Kazik testified about drug

trafficking in the abstract and she expressly stated that she knew nothing about Marr in particular.

As for the other case that Marr cites, United States v. Freeman, the government’s expert there

“effectively spoon-fed . . . the government’s theory of the case to the jury” by providing

inculpatory interpretations of phone calls that jurors were competent to interpret on their own. 730

F.3d 590, 597–98 (6th Cir. 2013). Conversely, Kazik testified about dealer versus user quantities

of methamphetamine and differences between dealers and users in gun usage—information that

would help many jurors to better understand the evidence and facts at issue in the case.

In short, we find that the district court did not reversibly err in permitting Kazik’s opinion

testimony.

C.

Sufficiency of the Evidence. Marr’s final claim of error is that the evidence was insufficient

for a jury to convict him of counts two and three of the indictment.

To win reversal on this theory, Marr must clear a high bar. We view the “evidence in the

light most favorable to the prosecution” and ask whether “any rational trier of fact could have

found the essential elements of the crime beyond a reasonable doubt.” Jackson v. Virginia, 443

U.S. 307, 319 (1979). In conducting this limited review, we do not “intrude on the jury’s role ‘to

resolve conflicts in the testimony, to weigh the evidence, and to draw reasonable inferences from

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basic facts to ultimate facts.’” Musacchio v. United States, 577 U.S. 237, 243 (2016) (quoting

Jackson, 443 U.S. at 319).

To convict Marr on count two, the jury had to find that Marr knowingly or

intentionally possessed with intent to distribute at least 5 grams of methamphetamine. 21 U.S.C.

§ 841(a)(1), (b)(1)(B)(viii).

Marr does not dispute that he knowingly possessed 21.5 grams of methamphetamine, but

he argues that no rational juror could find, beyond a reasonable doubt, that he had the intent to

distribute it. For support, Marr points to evidence that he was a user. For instance, Marr’s parole

officer testified that within a few months of being released from prison, Marr had tested positive

for methamphetamine three times. He also points out that, when he was arrested, officers found

no scales, cash, packing materials, or cell phone. Kazik acknowledged that these are typical tools

used by drug dealers. Finally, Marr directs our attention to a note from the jury regarding the

possession-with-intent-to-distribute charge. The jury stated, “We cannot reach a unanimous

agreement on Count 2A. Are we therefore required to check the ‘not guilty’ box?” (R. 50, Jury

Verdict, PageID.321). From Marr’s perspective, the jurors’ question showed that they “seemed

poised to acquit.” (Appellant Br. at 33.)

Even taking the evidence Marr highlights into consideration, Jackson’s high bar is not

satisfied. Robert Forbis, a police officer, testified that drug users typically purchase one half to

one gram of methamphetamine at a time and that it would be “extremely unusual” for someone

buying a gram at a time to be in possession of 21 grams. (R. 71, Trial Tr., PageID.616). Kazik

likewise testified that a drug user would buy about a gram at a time and that typically, drug users

do not have relationships with their suppliers such that they can purchase a quantity as large as

21.5 grams. A rational juror could credit Forbis’s and Kazik’s testimony. And if a rational juror

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did so, she could reasonably find that Marr possessed methamphetamine with the intent to

distribute it.

That leaves Marr’s challenge to his conviction on count three of the indictment, the

18 U.S.C. § 924(c) charge. A conviction under § 924(c) is warranted if a jury finds that a defendant

possessed a firearm “in furtherance of” a drug-trafficking crime. See 18 U.S.C. § 924(c)(1)(A).

This court often considers six factors in deciding whether the evidence supports an in-furtherance

conviction: whether the firearm was “strategically located so that it is quickly and easily available

for use . . . 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.”

United States v. Mackey, 265 F.3d 457, 462 (6th Cir. 2001). With the possible exception of the

first factor (strategic location), these are not requirements that must be satisfied. See United States

v. Maya, 966 F.3d 493, 501–02 (6th Cir. 2020). Nor are they an exhaustive list of in-furtherance

considerations. Mackey, 265 F.3d at 462.

Marr concedes that he possessed a firearm but argues that no rational juror could convict

him of possessing it in furtherance of drug trafficking. On this front, Marr couples what he views

as scant evidence of drug trafficking with the fact that he was arrested in a high-crime area.

But this analysis falls short of Jackson’s standard. As discussed, based on Forbis’s and

Kazik’s testimony about the quantity of methamphetamine Marr possessed, a rational juror could

find that Marr was engaged in drug trafficking. As for whether the firearm was possessed in

furtherance of that crime, many of the Mackey factors cut in favor of the conviction. The firearm

was found in Marr’s waistband, it was loaded, and an additional, loaded magazine was also on

Marr’s person. The drugs likewise were found on Marr’s person. So the guns and drugs were near

each other, with the gun “quickly and easily available for use.” Id. Finally, Marr’s prior felony

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conviction and parole status made it illegal for him to possess a firearm. See Ray, 803 F.3d at 264.

Taking the evidence in the light most favorable to the government as we must, a rational juror

could find beyond a reasonable doubt that Marr possessed a firearm “in furtherance of” possession

with the intent to distribute methamphetamine.

In sum, sufficient evidence supports Marr’s convictions of counts two and three.

III.

For the reasons discussed, we AFFIRM the district court’s judgment.

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