United States v. Swafford

• Court: Court of Appeals for the Sixth Circuit
• Decided: September 30, 2004
• Docket: 03-5468
• Status: Published

Opinion

RECOMMENDED FOR FULL-TEXT PUBLICATION Pursuant to Sixth Circuit Rule 206 2 United States v. Swafford No. 03-5468 ELECTRONIC CITATION: 2004 FED App. 0336P (6th Cir.) File Name: 04a0336p.06 UNITED STATES ATTORNEY, Chattanooga, Tennessee, for Appellee. UNITED STATES COURT OF APPEALS GIBBONS, J., delivered the opinion of the court, in which KEITH, J., joined. CLAY, J. (pp. 11-12), delivered a separate FOR THE SIXTH CIRCUIT concurring opinion. _________________ _________________ UNITED STATES OF AMERICA , X OPINION Plaintiff-Appellee, - _________________ - - No. 03-5468 v. JULIA SMITH GIBBONS, Circuit Judge. Defendant- - > appellant Larry Swafford was charged in a three count , indictment in the United States District Court for the Eastern LARRY SWAFFORD , - District of Tennessee with (1) possession with intent to Defendant-Appellant. - distribute fifty grams or more of methamphetamine, in N violation of 21 U.S.C. § 841(a)(1) and (b)(1)(B); Appeal from the United States District Court (2) possession with intent to distribute methamphetamine, in for the Eastern District of Tennessee at Chattanooga. violation of 21 U.S.C. § 841(a)(1) and (b)(1)(C); and No. 02-00014—Curtis L. Collier, District Judge. (3) possession of a firearm in furtherance of the drug trafficking crimes charged in the first two counts, in violation Argued: June 11, 2004 of 18 U.S.C. § 924(c). After a jury trial, Swafford was convicted on all three counts and sentenced to 180 months Decided and Filed: September 30, 2004 imprisonment. Swafford brought this appeal, arguing that the evidence was insufficient to support his conviction for Before: KEITH, CLAY, and GIBBONS, Circuit Judges. possession of a firearm in furtherance of a drug trafficking offense and that the district court erred in admitting the _________________ testimony of law enforcement officers who testified (1) that the amounts of drugs possessed by Swafford were consistent COUNSEL with resale and that dealers often carry firearms in connection with their sales activities; and (2) that a name on a business ARGUED: Nikki C. Pierce, FEDERAL DEFENDER card belonged to a known drug dealer and numbers on that SERVICES, Greeneville, Tennessee, for Appellant. Paul W. card corresponded to common drug prices. For the following Laymon, Jr., ASSISTANT UNITED STATES ATTORNEY, reasons, we affirm Swafford’s conviction. Chattanooga, Tennessee, for Appellee. ON BRIEF: Nikki C. Pierce, FEDERAL DEFENDER SERVICES, Greeneville, Tennessee, for Appellant. Paul W. Laymon, Jr., ASSISTANT

1 No. 03-5468 United States v. Swafford 3 4 United States v. Swafford No. 03-5468

I. offense beyond a reasonable doubt.” United States v. Davis, 306 F.3d 398, 408 (6th Cir. 2002). On November 15, 2001, Detective Jimmy Smith of the Bradley County Sheriff’s Office acquired and executed a We generally review evidentiary decisions for an abuse of search warrant for Swafford’s residence, a single family discretion. United States v. Talley, 164 F.3d 989, 1000 (6th house in Cleveland, Tennessee. Smith, accompanied by other Cir. 1999). If, however, the appealing party did not raise an officers, arrived at the residence shortly after 9:10 p.m. When objection to the introduction of the evidence at trial, we Swafford’s wife answered the door, the officers entered and review the judge’s decision for plain error. United States v. found Swafford lying in bed holding an infant. An officer Cowart, 90 F.3d 154, 157 (6th Cir. 1996). “[B]efore an found a loaded .45 caliber semi-automatic pistol within arm’s appellate court can correct an error not raised at trial, there reach of where he had been lying. The officer seized this must be (1) error, (2) that is plain, and (3) that affects pistol, as well as two loaded .22 caliber pistols. The officers substantial rights. If all three conditions are met, an appellate did not seize several rifles and shotguns found in a gun court may then exercise its discretion to notice a forfeited cabinet. error, but only if (4) the error seriously affects the fairness, integrity, or public reputation of judicial proceedings.” An officer found ten to fifteen garbage bags in the bed of an Johnson v. United States, 520 U.S. 461, 467 (1997) (citations old truck in a makeshift garage behind the house. The omitted). officers found a Tupperware bowl containing three one-ounce bags of marijuana and some loose marijuana in one of the III. garbage bags. Also inside the bag were numerous sandwich baggies, each of which had two corners cut out. The officers Swafford first argues that his conviction for possession of also found methamphetamine weighing a total of 66.5 grams a firearm in furtherance of a drug offense was not supported hidden in a stereo on a workbench in the garage. A shelf on by sufficient evidence. Eighteen U.S.C. § 924(c) provides: the workbench held a blender which appeared to contain methamphetamine residue, a set of digital scales, and a Any person who, during and in relation to any crime of playing card.1 Officers found $934 in cash in Swafford’s violence or drug trafficking crime . . . for which the wallet, as well as a lawyer’s business card, on the back of person may be prosecuted in a court of the United States, which was written “Tony Perry 280” and “Ron 110.” uses or carries a firearm, or who, in furtherance of any such crime, possesses a firearm, shall, in addition to the II. punishment provided for such crime of violence or drug trafficking crime – In reviewing the sufficiency of the evidence for a criminal conviction, we must determine whether, after viewing the (i) be sentenced to a term of imprisonment of not less evidence in the light most favorable to the prosecution, “any than 5 years. rational trier of fact could have found the elements of the

1 An officer testified that playing cards are commonly used to scoop methamphetamine. No. 03-5468 United States v. Swafford 5 6 United States v. Swafford No. 03-5468

18 U.S.C. § 924(c)(1)(A).2 This statute was interpreted by Finally, the gun was discovered as the officers executed a this court in United States v. Mackey, where we stated: search warrant looking for drugs, which they ultimately found. Thus, each of the Mackey factors points to the [W]e emphasize that the possession of a firearm on the conclusion that this weapon was possessed in furtherance of same premises as a drug transaction would not, without the drug offenses. a showing of a connection between the two, sustain a § 924(c) conviction. In order for the possession to be in In addition, we have stated that “[a]lthough possession of furtherance of a drug crime, the firearm must be a firearm in the same premises as the drug trafficking strategically located so that it is quickly and easily activities alone is insufficient to support a conviction under available for use. Other factors that may be relevant to section 924(c), a jury can reasonably infer that firearms which a determination of whether the weapon was possessed in are strategically located so as ‘to provide defense or furtherance of the crime include whether the gun was deterrence in furtherance of the drug trafficking’ are used in loaded, the type of weapon, the legality of its possession, furtherance of a drug trafficking crime.” United States v. the type of drug activity conducted, and the time and Couch, 367 F.3d 557, 561 (6th Cir. 2004). While in Couch circumstances under which the firearm was found. the firearms were in closer proximity to the drugs than was the case here, we also relied on testimony from a law 265 F.3d 457, 462 (6th Cir. 2001) (citations omitted). The enforcement officer that “at least one of the firearms court noted that these factors would help the court “to discovered – the Smith & Wesson handgun – is commonly distinguish possession in furtherance of a crime from innocent associated with drug trafficking crimes.” Id. The same possession of a wall- mounted antique or an unloaded hunting testimony was offered here with regard to the .45. Also, rifle locked in a cupboard.” Id. while the drugs were not found in the same room as the gun, the garage where they were found was easily accessible from In the present case, Swafford’s .45 caliber pistol was the bedroom where Swafford and the gun were found. strategically located so that it was quickly and easily available Swafford could reach the garage, which was attached to the for use. The gun was found loaded, with its handle pointing house by wooden boards, simply by walking ten to fifteen up, within arm’s reach of the bed where Swafford was lying. feet out the bedroom door. In addition, the gun seems much It can hold a large number of rounds, and because it is more useful for protection purposes if kept close to Swafford, semiautomatic, it can fire these rounds in rapid succession. the potential user, rather than close to the drugs. Considering Agent Frank Ledford of the Drug Enforcement this evidence, we conclude that a rational trier of fact could Administration testified that such weapons play a role in drug have found the elements of the crime beyond a reasonable distribution, as dealers carry them for protection and doubt. intimidation purposes. Because Swafford had been convicted of a prior felony, his possession of the gun was unlawful. Swafford next argues that the district court erred by admitting Agent Ledford’s testimony that the drugs were possessed with the intent to distribute and that the guns were 2 As this court has stated, § 92 4(c) “criminalizes two separate and distinct offenses,” using or carrying a firearm during and in relation to a drug offense, and possessing a firearm in furtherance of a drug offense. United States v. Combs, 369 F.3d 9 25, 933 (6th Cir. 2004). Swafford was charged with the latter. No. 03-5468 United States v. Swafford 7 8 United States v. Swafford No. 03-5468

possessed in furtherance of the drug offenses.3 Swafford United States v. Bender, 265 F.3d 464, 472 (6th Cir. 2001)).4 contends that Agent Ledford testified to an ultimate issue in The recognized role of police officers as experts in cases such the trial, thereby improperly invading the province of the jury as this one requires that we find no error in the admission of and violating his Sixth Amendment right to a jury trial. Agent Ledford’s testimony. Because Swafford did not object at trial, we review the district court’s decision for plain error. Police officers are routinely allowed to testify that circumstances are consistent with distribution of drugs rather Agent Ledford testified on behalf of the government as an than personal use. See United States v. Jones, 81 Fed. Appx. expert in the area of methamphetamine investigations. 45, 48 (6th Cir. 2003) (affirming defendant’s sentence where Properly qualified expert testimony is generally admissible if police officer testified that the amount of drugs found, as well it “will assist the trier of fact to understand the evidence or to as the presence of zip-lock bags and a digital scale, suggested determine a fact in issue.” Fed. R. Evid. 702. “Our court that defendant intended to distribute the drugs); United States regularly allows qualified law enforcement personnel to v. Dillard, 78 Fed. Appx. 505, 514-15 (6th Cir. 2003) testify on characteristics of criminal activity, as long as (affirming defendant’s sentence where officer testified that appropriate cautionary instructions are given, since amount of drugs was more consistent with distribution than knowledge of such activity is generally beyond the with personal use); United States v. Quinn, 230 F.3d 862, 866 understanding of the average layman.” United States v. (6th Cir. 2000) (affirming defendant’s sentence where officer Thomas, 99 Fed. Appx. 665, 668-69 (6th Cir. 2004) (citing testified that amount of drugs was more consistent with distribution than with personal use). In addition, we find that the district court did not err in allowing Agent Ledford to testify that firearms play a role in drug trafficking activity. We recently held admissible an 3 Agent Ledford testified as follows: officer’s testimony that large-capacity pistols are commonly Q: But based upon the factors that I’ve just set out for you that used in drug trafficking. See Thomas, 99 Fed. Appx. at 669. you know to be the evidence, do you have an opinion as to whether or no t this methamphetamine was possessed with the intent to distribute it? 4 A: Yes, sir, that’s what it was designed for, that’s what it was In the instant case, the district court properly cautioned the jury: doing. Q: W hy, in your opinion, was that possessed with the intent to You have . . . heard the testimony of Drug Enforcement distribute? Administration Special Agent Frank Ledford. Special Agent A: Because you have the amount, 2½, maybe – approxim ately Ledford was offered as an expert in the area of 2½ ounces, you’ve got the blender where it’s been chopped methamphetamine investigations. An expert witness has special up so it can be weighed out correctly on the scales, then you knowledge or experience that allows the witness to give an have the baggies with the corners cut out of them. opinion. Q: W hat about the presence of the firearms; does that have a role in d istribution -of-drug activity? You do not have to accept an expert’s opinion. In deciding how A: Yes, sir, it does. much weight to give it, you should co nsider the witness’s Q: W hat is that? qualifications and how he reached his conclusions as well as any A: W e see that drug dealers carry firearms for intimidation and other factors you think are relevant to determining whether the protection of their product. expert is a credible witness. No. 03-5468 United States v. Swafford 9 10 United States v. Swafford No. 03-5468

In that case, we observed that “[m]ost courts have taken a IV. very tolerant view of the admissibility of expert testimony linking the presence of firearms to drug trafficking activities.” For these reasons, we affirm Swafford’s conviction and Id. (citing United States v. Allen, 269 F.3d 842, 845-46 (7th sentence. Cir. 2001) (upholding admission of police expert testimony that it is common for drug dealers to keep weapons to protect themselves and their drugs) and United States v. Jackson, 67 F.3d 1359, 1366 (8th Cir. 1995) (same)). In addition, in United States v. Pearce, we held admissible an officer’s testimony that handguns found inside a suspicious building were typical of guns found in crack houses. 912 F.2d 159, 163 (6th Cir. 1990). Similarly, the district court in this case did not plainly err in allowing Agent Ledford to testify that “drug dealers carry firearms for intimidation and protection of their product.” Last, Swafford argues that the district court erred in admitting the testimony of Detective Smith who identified a name handwritten on a business card found in Swafford’s wallet as that of a known drug dealer and who stated that two dollar amounts written on the card corresponded to the cost of certain quantities of methamphetamine. Swafford argues that this testimony was impermissibly based on hearsay and speculation. Swafford did not object to the admission of this testimony, contemporaneously or otherwise, although later in the trial he objected to the admission of the business card on relevancy grounds. We therefore review for plain error. Smith’s testimony regarding common drug prices helped the jury to understand the evidence presented, and therefore was proper expert testimony. See Bender, 265 F.3d at 472. Further, he did not state that the numbers actually represented drug debts, which would have been beyond his knowledge, just that they were consistent. Finally, Smith’s testimony, elicited during cross examination, that Tony Perry, whose name was written on the card, was a known drug dealer was based on personal knowledge gleaned from past investigations. The admission of Smith’s testimony was not plain error. No. 03-5468 United States v. Swafford 11 12 United States v. Swafford No. 03-5468

____________________ refrigerator in the kitchen and a loaded firearm on the top shelf of a closet in an upstairs bedroom. Significantly, in Hall CONCURRENCE the charges were under the “during and in relation to” clause ____________________ of § 924(c)(1)(A), which demands less evidence of a connection to the drug trafficking offense than is required by CLAY, Circuit Judge, concurring. I concur with the the “in furtherance of” clause that was charged in the instant majority’s disposition but not with all of its reasoning on the case. Mackey, 265 F.3d at 462. issue of whether Defendant possessed a firearm “in furtherance of” a drug trafficking crime, under 18 U.S.C. The majority presents this issue as straightforward, but it is § 924(c)(1)(A). This issue is closer than the majority not. There is sufficient evidence to support a conviction, but suggests. only by a close margin.

The majority states that “each of the Mackey factors points to the conclusion that this weapon was possessed in furtherance of the drug offenses.” This is not entirely true. For one, “the time and circumstances under which the firearm was found,” United States v. Mackey, 265 F.3d 457, 462 (6th Cir. 2001), provide little evidence of any connection between the firearm and drug trafficking. The firearm was not discovered during any drug transaction but, rather, during a police search of the residence. Another factor in Mackey was the proximity of the firearm to the drugs. Id. at 462. In the instant case, the facts are either ambiguous or favor Defendant’s position, inasmuch as the firearm was found in the bedroom and the drugs were in the garage. There were Mackey factors supporting the connection between the firearm and the drug offense, such as the gun being loaded, illegally possessed, and in a very easily accessible location. Based upon these factors it would not be irrational for a factfinder to sustain a conviction under § 924(c)(1)(A). But this is a close issue, and any small variation in the facts, diminishing the connection between the gun and the drugs, might have been enough to render the evidence insufficient to support the conviction. Under very similar facts, in United States v. Hall, 20 F.3d 1084 (10th Cir. 1994), the Tenth Circuit ruled that there was insufficient evidence to support a conviction under § 924(c), where a police search of a house found drugs in a package on top of a