United States v. Jerry Lee Newton

31 F.3d 611, 1994 U.S. App. LEXIS 17370, 1994 WL 369900
CourtCourt of Appeals for the Eighth Circuit
DecidedJuly 18, 1994
Docket93-3889
StatusPublished
Cited by36 cases

This text of 31 F.3d 611 (United States v. Jerry Lee Newton) is published on Counsel Stack Legal Research, covering Court of Appeals for the Eighth Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
United States v. Jerry Lee Newton, 31 F.3d 611, 1994 U.S. App. LEXIS 17370, 1994 WL 369900 (8th Cir. 1994).

Opinion

ROSS, Senior Circuit Judge.

Appellant Jerry Lee Newton appeals from his conviction of using a firearm during and in relation to a drug trafficking offense in violation of 18 U.S.C. § 924(c). He also challenges various testimony presented at trial and contends that the district court 1 improperly calculated the drug quantity in making its sentencing determination. We affirm.

The evidence at trial showed that between November 24, 1992, and March 16, 1993, appellant sold methamphetamine on three occasions to Special Agent Sean McCullough of the Iowa Division of Narcotics Enforcement. At the time of the first sale, Agent McCullough observed appellant with additional quantities of methamphetamine, which appellant indicated he was going to sell to other persons.

On April 19,1993, several law enforcement agencies executed a search warrant at appellant’s residence. During the search, the officers discovered approximately 10.53 grams of a mixture or substance containing methamphetamine hidden in appellant’s bedroom. The officers also seized various firearms found in the same room as the methamphetamine. Two of these weapons were loaded with hollow point ammunition.

Appellant entered a plea of guilty to Counts 1 through 5, charging him with distribution of methamphetamine and possession of methamphetamine with an intent to distribute. Appellant also pled guilty to Count 6 of the indictment, charging him with possession of a firearm by a person addicted to a controlled substance. He stood trial on Count 7 charging him with using a firearm during and in relation to a drug trafficking offense in violation of 18 U.S.C. § 924(c). The jury returned a verdict of guilty on the firearms charge.

On appeal, appellant contends that improper testimony was admitted concerning general characteristics of drug traffickers. Agent McCullough, who has been an agent with the Iowa Division of Narcotics Enforcement for four years and who is a certified firearms instructor for semiautomatic and revolver handguns, testified that drug traffickers often keep firearms in close proximity to drugs and assets in order to protect their drug supply. He further testified that handguns are typically used by drug dealers because they are easy to conceal and that load *613 ed firearms are significant because they are readily accessible. Appellant now argues that this testimony should have been excluded because Agent McCullough did not qualify as an expert, and because the testimony improperly amounted to a “drug courier profile.”

This court has previously approved testimony of a narcotics officer concerning the use of firearms by drug traffickers. In United States v. Boykin, 986 F.2d 270, 276 (8th Cir.), cert. denied, — U.S. -, 114 S.Ct. 241, 126 L.Ed.2d 195 (1993), the court upheld admission of testimony that drug dealers use guns for protection. The court also approved testimony that “the type of firearms found in [the defendant’s] home, their location, and the fact that they were loaded was significant to their usefulness and availability for use in connection with a drug business.” Id. Further, this court will “allow law enforcement officers to testify as experts about drug-related activities unfamiliar to most jurors.” United States v. Lowe, 9 F.3d 43, 47 (8th Cir.1993), cert. denied, — U.S. -, 114 S.Ct. 1229, 127 L.Ed.2d 573 (1994). Here, the district court properly allowed the experienced narcotics investigator to testify as an expert concerning the modus operandi of drug dealers.

Appellant also contends the jury verdict finding him guilty of violating 18 U.S.C. § 924(c) is not supported by the evidence. He argues that the seized weapons were part of a gun collection used only for target practice and were not used in connection with an illegal drug activity.

Although more than mere possession of a firearm is required for a conviction under section 924(c), the government need not show that the defendant brandished or discharged the weapon. United States v. Wolfe, 18 F.3d 634, 637 (8th Cir.1994). Instead, there is sufficient evidence to establish a violation of section 924(c) if the evidence shows that the weapon was “present and available in the house in which the drugs and cash are located, in the event it is needed.” United States v. Simms, 18 F.3d 588, 592 (8th Cir.1994) (loaded handgun found in bedroom of house in which drugs were seized). See also United States v. Mejia, 8 F.3d 3, 5 (8th Cir.1993) (per curiam) (loaded gun found in apartment could be used to protect drugs also found in apartment); United States v. Boykin, supra, 986 F.2d at 273-74 (handguns in upstairs bedroom, drugs and cash in downstairs living room and kitchen); United States v. Jones, 990 F.2d 1047, 1048-49 (8th Cir.1993) (gun hanging on back of bedroom door adjacent to closet with cash and drugs), cert. denied, — U.S. -, 114 S.Ct. 699, 126 L.Ed.2d 666 (1994).

The evidence in the present case showed that a loaded AR-15 semiautomatic rifle was found behind the door leading to appellant’s bedroom, and a loaded .38-special revolver and a loaded .22 caliber revolver were found inside a dresser drawer in the same bedroom. These weapons were found in the same room in which the methamphetamine was discovered. Two of these weapons were loaded with hollow point ammunition that is designed for self defense and antipersonal use, rather than target practice. This was sufficient evidence for the jury to conclude that the appellant used the firearms during and in relation to a drug trafficking offense.

Appellant next asserts that the district court erred in allowing the testimony of ATF Special Agent Jerry Gordon, who testified that the Bureau of Acohol, Tobacco and Firearms does not recognize the AR-15 to have any legitimate sporting purpose, and that the AR-15 is on a list of weapons that have been barred from importation into the United States. Appellant argues that this testimony left the jury with the false and prejudicial impression that he possessed an illegal weapon. The district court sustained appellant’s objection to this testimony and the jury was instructed to disregard it.

Appellant did not at any time move for a mistrial, and accordingly obtained all the relief he sought from his objection. To the extent appellant seeks relief not requested in the district court, this court may review the record only for plain error. See Fed. R.Crim.P. 52(b).

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Cite This Page — Counsel Stack

Bluebook (online)
31 F.3d 611, 1994 U.S. App. LEXIS 17370, 1994 WL 369900, Counsel Stack Legal Research, https://law.counselstack.com/opinion/united-states-v-jerry-lee-newton-ca8-1994.