NOT RECOMMENDED F OR F ULL-TEXT PUBLICATION F ile Nam e: 11a0825n.06 No. 08-6297 UNITED STAT ES COURT OF AP P EALS F OR THE S IXTH CIRCUIT

UNI TED STATES OF AMERI CA, Plaintiff-Appellee ,

v. CURTI S DODSON, Def endant- Appellant. ) ) ) ) ) ) ) ) ) On Appea l from the United States Di s trict Court for the Western District of Tenne ssee

Be fore : BO GGS and STRANCH, Circuit J udg es; and THA PAR, District J udg e * BO GGS, Circuit J udg e. A fede ral jury convicted Curtis Dodson of conspi rac y to
possess at least five kilogr ams of coca ine, in violation of 21 U.S.C. § 841(a) (1) and 21 U.S.C. § 846, and aiding and abetting in the possession of more than 500 g rams of coca ine with the in t en t t o distribute, in violation of 21 U.S.C. § 841(a) (1) and 18 U.S.C. § 2. Dodson appea ls, c laiming first that the gover

nment did not produce enoug h evidenc e to convict him of e ither cha rg e, and se cond that the district court err ed by admitting law-e nforc ement office rs’ opinion testimony on drug deale rs’ behavior , without g iving a contempora neous dual-role instructi o n . Fo r the rea sons that follow, we a ffirm the judg ment of convic tion.

Hon. Amul R. Thapa

r, Unit ed S tates Dist rict J udg e fo r t h e Easter n District of Kentucky , * sitti ng by desig nation.No. 08-6297

United States v. Dodson

I

L uci o S an d o val and Fr ancisc o Aber nathy ran a larg e drug -dea ling opera tion. Sandoval arr ang ed to send drug s, initially by UPS and later throug h private courie rs, from California
to a “stash-house ” that Aber nathy owned in Memphis, Tenn es s ee . S an doval would then fly to Memphis, help Aber

nathy proce ss and sell the drug s, and re ceive pay ment. Dodson met Aber

nathy th rough motorcy cle rac ing, and met Sandoval throug h Aber nathy

. I nit i al l y , Dodson did not participa te in any illega l activity

. Eventually , howeve r, he beg an to help Sandoval with drug -re lated tasks, including unloading drug s from the trucks Sandoval

arr ang ed, delivering drug s to local clients, and unwra pping, weig hing, and re- packa g ing d rug s, including the coca ine found in this case

.

On Marc h 13, 2006, a state office r, J ason Randolph, discovere d approximately five kilogr ams of coca ine during a traff ic stop. The driver was arr ested and cooper ated with police. He explained that he was a hired courie r and led o ff icer s to Aber

nathy ’s stash-house, wher e he had acquir ed the dr

ug s. The police did not enter immediately

. I nstead, a number of Tenne ssee office rs,

acc ompanied by two fede ral ag ents, returne d later in the evening

. Offic er Randolph and colleag ue J ohn Birc h attempted a ‘knock a nd talk,’ a nonc ustodial procedur e “w here a police of fice r knocks

on the front door of a home for purposes of speaking to the occupa nts or asking for consent to sear ch the premises,” Pritchard v. Hamilton Twp. Bd. of Trustees , 424 F. App’x 492, 499 (6th Cir. 2011), while the other

law-e nforc ement per sonnel waited outside. As the officers approac hed the house, - 2 -No. 08-6297

United States v. Dodson
t h ey encountered Aber

nathy , who was leaving , and they saw throug h an open door that s ev er al people wer e g ather ed in the living room. They escor ted Aber nathy back inside. T h ere , Offic er Randolph patted him down, removing a g un, two cell-phone s, and a set of car key s from his person. The office rs then order ed all the people in the house to g ather in one room. Once all the occupa nts

wer e in one place, the of

fice rs aske d who owned the hous e. No one answe red. Offic er Randolph

rema ined in the living room, while Offic er Birc h proce ede d t o t h e back of the house. There , he found Dodson and Sandoval in a small bedroom. Both men denied knowing who owned the house. Birc h escor

ted both to the living room. 1 Bi rc h n ex t ca l l ed fo r t he office rs who had been waiting outside. Be cause no on e admitted to owning the house, the office rs decide d it was not possible to conduct a sear ch based on

co n s en t

. T h ey there fore duly obtained a war rant and beg an to sear ch the house. I n the bedroom wher e, acc ording to Sandoval, Dodson stay ed, on e o f t h e fe d era l ag ents found a stack of mail in Dods on’s name. Offic ers also found a shotgun that Sandoval claimed belong ed to Dodson, and drug -dea ling e quipment, including dig ital scales a nd a vac uum-seale r sy stem. Offic er Dave McGrif

f, a supervisor, spoke with Dodson twice over the course of the evening

. During the first conver sation, Dodson told McGrif f that he did not live at the stash-house

or know whose house it was. L ater in the evening , Dodson asked McGrif f fo r his car key s—the

same key s Randolph had taken from Aber nathy ear lier. Along with key s to Dodson’s car , the key

ring held a ke y

to the stash-house. Stil l, Dodson denied knowing who owned the house , claiming that Aber nathy must have put the key

on the ring

.
Dodson does not cha lleng e the pr opriety of the off icer s’ sea rch of the stash-house. 1 - 3 -No. 08-6297

United States v. Dodson

The investiga tion continued afte r Marc h 13, with Sandoval’s cooper ation. Sandoval used the dire ctory

fea ture in his cell phone to ide ntify phone numbers belong ing to A berna thy and Dodson. Drug Enforc ement Ag ency Ag ent Abe Colli ns obtained phone rec ords for the numbers Sandoval identified and perf ormed a “link-ana ly sis,” which indicates how fre quently one cell-phone

user contacts another based on cell-phone rec ords. Ag ent Colli ns’s analy sis showed that Dodson
contac ted Sandoval fourtee n times, and Aber nathy 122 times, during th e p e r iod from J anuar y 1, 2006 throug h Marc h 13, 2006.

At trial, both O ffice r Randolph and Ag ent Colli ns testified. On cross-e x amination, Dodson’s counsel asked Randolph whether , based on his tra ining and experience , it was common for drug deale rs to reg ister car s i n o t h er s ’ names. Randolph answe red that it was. On re- direc texamination, Randolph testified that drug deale rs followed the same prac tice with c ell phones and firea rms. Ag ent Collins t estified about the nature a nd purposes of sta sh-houses, drug deale rs’ use of we apons and othe r equipment, a nd the stree t value of c ocaine

. The court did not identif y ei t h er law-e nforc ement office r as an expert. After the
prosec ution asked a series of foundational questions, howeve r, the court did state, in front of the jury , that Colli ns could g ive opinion testimony on “nar cotics dea lers.” A t no point did defe nse counse l object to e ither Offic er Randolph or Ag ent Colli ns’s opinion testimony

. I n its jury char g e, the trial court g ave a

n instruction on opinion evidence, pr oviding: You have hear d the testimon y of J ason Randolph, Raul Morales and Abe Colli ns 2 who rendere d opinions in this case. A witness who is a llowed t o rende r an opinion has specia l knowledg e or experience that allows him to g ive an opinion. You do not

Morales is a f

orensic c hemist, employ ed by the DEA. 2 - 4 -No. 08-6297

United States v. Dodson have to a cce pt the opinion of such a witness. I n deciding how m uch weight to give it, y ou should consider the witness' qualifica tions an d h o w he rea ched his conclusions. Remember that y ou alone decide how much of a witness' testimony to believe a nd how much we ight it dese rves. 3 The jury convicted Dodson of conspirac y to possess at least five k il o g r a ms o f c o caine , in violation of 21 U.S.C. § 841(a) (1) and 21 U.S.C. § 846, and aiding and abetting in the possession of in excess of 500 g rams o f co ca i ne with the intent to distribute, in violation of 21 U.S.C. § 841(a) (1) and 18 U.S.C. § 2. R. 271. Dodson appea led, claiming : (1) the evidenc e was insufficient 4

to support conviction on either count; and (2) admission of police testimony on drug deale rs’ behavior wi t h o u t a jury instruction on office rs’ dual role as lay witnesses and experts was so prejudicia l that it constit uted plain er ror.

I I “[T] he critica l inquiry on revie w of the sufficie ncy o f t h e ev idence to support a criminal conviction

. . . [i s] whether the rec ord evidenc e could rea sonably support a finding of g uilt bey ond a rea sonable doubt.” Jack son v. Virginia , 443 U.S. 307, 318 (1979). “A defe ndant making such a chall en ge b ea rs a very heavy burden.” United States v. Tocco , 200 F.3d 401, 424 (6th Cir. 2000). “[ T]he rele vant questi on is whether , afte r v i ew i n g the evidence in the l ight most favor able

This instruction is near ly identical to Six th Circuit Criminal Pattern J ury I nstruction 7.03. 3 The only differ ence s wer e that the court: (1) added: “A witness who is allowed to rende r an opinion has specia l knowledg e or experience that allows him to g ive an opinion,” and (2) o m i t ted: “Also consider the other fac tors discussed in these instructions for weig hing the cre dibilit y of witnesses.” Six th Circuit Crimi nal Pattern Jury I nstructions, 7.03 (2009). The district court’s entry of judgme nt form states that Dodson was convicted on both counts 4 of the indictment, but incorre ctly labels the first count as aiding and abetting , rathe r than conspirac y . - 5 -No. 08-6297

United States v. Dodson
to the prosec ution, any rational trier of fa ct could have found the essential elements of the crime bey ond a rea sonable doubt.” Jack son , 443 U.S. at 319 (empha sis in orig inal). Although this court’s revie w is de novo , United States v. Carson , 560 F.3d 5 6 6, 579 (6th Cir. 2009), “[w]e draw all available infere nces and resolve all issues o f cr ed i b i l ity in favor of the jury ' s verdic t, and it is not

nece ssary for us to exclude ever y rea sonable hy

pothesis but g uilt.” United States v. Ave ry , 128 F.3d 966, 971 (6th Cir. 1997). A

“To sustain a conviction for drug conspi racy under [21 U.S.C.] section 846 the
g overnme nt must prove bey ond a rea sonable doubt: (1) an ag ree ment to violate drug laws; (2) knowledg e of and intent to join the conspirac y ; and (3) participa tion in the conspirac y .” United States v. Gardner , 488 F.3d 700, 710 (6th Cir. 2007). “Onc e a conspirac y has been proven, only slight evidenc e is nece ssary to implicate a defe ndant as a participa nt i n t h at co n spiracy if the evidenc e shows the c onnection bey ond a re asonable doubt.” Tocco , 200 F.3d a t 424.

The rec ord below amply supports the jury ’s verdic t. Acc ording to Sandoval, Dodson helped unload, deliver, weig h, and packa g e drug s. I ndeed, Dodson worke d with Sandoval to unpack and re- pack the very coca ine found in this case . Other evidenc e in the rec ord also supports the jury ’s verdic t. The DEA’s investiga tion showed that Dodson was in fre quent phone contac t with both Aber nathy and Sandoval; office rs sear ching the stash-house found Dodson’s mail along with a shotgun that Sandoval claimed belong ed to Dodson; and Dodson kept a key to the stash-house with his car key s—which wer e found in Aber nathy ’s pocket. Finally , Dodson lied ab out his living situation. There was mail a ddresse d to him at the stash-house and he had a key to the house on his

- 6 -No. 08-6297

United States v. Dodson key -ring

. Neve rtheless, he denied living there and claimed he did not know who owned the proper ty

. “[I ]t is today universally conce ded that th e fact of an acc used' s . . . conce alment

. . . and rela ted conduct, are admissible as evidenc e of consciousness of g uilt, and thus of g uilt itself.” United States

v. Griffin , 172 F.3d 874, 199 9 W L 7 1 6 0 2 , at *5 (6th Cir. 1999) (table) (quoting United States v. Serio , 440 F.2d 827, 832 ( 6th Cir. 1971)) (interna l quotation marks omitted).

We hold that, in light of Sandoval’s testimony , phy s i cal evidenc e from the stashhouse, and Dodson’s evasive demea nor about his living situation, a re asonable jury could have inferr ed bey ond a rea sonable doubt tha t D odson knowing ly or intentionally

ag ree d to possess, and participa ted in possessing, a t least five kilog rams of c ocaine

. Dodson’s contra

ry arg uments—that Sandoval’s testimony does not establish that he knowing ly ag ree d to participat e i n t h e conspirac y , and that Aber nathy ’s testimony exonerates him—are unavailing

. “When deciding whether any rational trier of fac t could have fo u nd the 5 essential elements of t he crime, this court does not weigh the evidence, consider the cre dibilit y of witnesses, or substitut e its judgme nt for that of the jury .” Gardner , 488 F.3d at 71 0 (i n t er nal citations omitted). To acc ept Dodson’s arg uments would be to flout this principle. Although Aber nathy flatly denied that Dodson had any role in the drug enter prise, Sandoval expressly stated that Dodson was an active participa nt. Which of these witnesses to cre dit and how much weig ht to

ascr ibe to their testimony is the province of

the jury

.

Dodson also sug g ests that evidenc e of the drug tra nsaction betwe en him and S andoval is 5 insufficient to support his conviction. He appea rs to ignor e the rest of the evidenc e prese nted ag ainst him in making this claim. - 7 -No. 08-6297

United States v. Dodson

Dodson, there fore , has failed to meet his “ver y heavy burden,” United States v
. To c c o , 2 0 0 F. 3 d 4 01, 424 (6th Cir. 2000), of demonstrating that, “af ter viewing the evidenc e in the light
most favor able to the prosec ution, [no] rational trier of fac t could have found the essential elements of the c rime bey ond a re asonable doubt.” Jack son , 443 U.S. at 319. B “[T] o establish a violation of [21 U.S.C.] § 841(a) (1), the g overnme nt must prove the following elements: (1) knowing (2) po s s es s i on of a controlled substance (3) with intent to distribute.” United States v. Bonas , 434 F. App’ x 422, 430 (6th Cir. 2011) (quoting United States v. Mac key , 265 F.3d 457, 460 ( 6th Cir. 2001)) (interna l quotation marks omitted).

Dodso n claims that no evidenc e exis ts that he knowing ly possessed a controlled substance, either direc tly or constructively

. He was char g ed, howeve r, under an aiding -and- abetting
t h eory . To prove aiding and abetting , the g overnme nt need only show that Dodson k n ew t h at Aber nathy and Sandoval possessed coca ine with the intent to distribute it and that he assisted in their plan to deliver it. See United States v. Ledezma , 26 F.3d 636, 641 (6th Cir. 1994). Sandoval testified that Dodson worke d with him to unload, deliver, weig h, and packa g e drug s. Fur ther, there was mail addre ssed to D odson at the stash-house, wher e drug s wer e often in pla in vie w, and he had a key to the house on his key ring

. This evidenc e easily supports a rational infere nce th at Do d s o n k n ew Aber nathy and Sandoval possessed coca ine, with the intent to distribute it, and assisted in their plan to deliver it. Jack

son , 443 U.S. at 319.

- 8 -No. 08-6297

United States v. Dodson I I I

Dodson’s final arg ument is that admission of Offic er Randolph and Ag ent Colli ns’s testimony on drug deale rs’ hab i tual behavior , without a contempora neous dual-role instruction, require s reve rsal of his conviction. Plain-err or analy sis applies t o this claim because Dodson did
not object to admission of the office rs’ testimony at trial. See United States v. Martin , 520 F.3d 656, 658 (6th Cir. 2008). Under plain-er ror analy sis, this court overturns a conviction only if: “(1) there

was err or that (2) was plain, (3) aff ecte d a substanti al rig ht, and (4) seriously aff ects the fairne ss, integ rity , or public re putation of judicial proce eding s.” Ibid. (interna l quotation omit ted).

Be cause the court did not err in this case , we need not proce ed bey ond the first step of plain-er

ror analy sis. A trial judge ’s instructions on opinion witnesses are desig ned to “ame liorate the risk of jury confusion reg arding dual role testimony .” United States v. Lopez-Me dina , 461 F.3d 724, 744 (6th Cir. 2006). At the same time, howeve r, t ri al co u rt s are not to call attention to a witness’s expert status, since such a desi g nation risks g iving the witness’s opinion the court’s imprimatur. See United States v. Johnson , 488 F.3d 6 9 0 , 6 9 7

– 9 8 (6th Cir. 2007)

. Only if a defe ndant objects to opinion testimony should the trial court allow voir dire and then decide whether the witness may

offe r an opinion. Id. at 698. The district court in this case did not identi fy either law-e nforc ement office r as an expert, althoug h it did allow Colli ns to g ive opinion testimony , afte r the prosec ution asked a series of foundational questions. I n its jury char g e, the court g ave an instruction substantially identical to Six th Circuit Criminal Pattern J ury I nstruction 7.03, explaining how the jury should weig h opinion testimony

. See supra note 3. - 9 -No. 08-6297

United States v. Dodson

T h e court’s approa ch was not err or. By declining to draw specia l at t en t i o n t o t h e

w it n e s ses’ status as law-e nforc ement office rs, then g iving this circ uit’s pattern instruction o n o p in io n testimony when charg ing the jury at t he end of t he case, the court appr opriately balanc ed the ne ed to “ameliora te the risk of jury confusion re g arding dual role testimony ,” Lopez-Me dina , 461 F.3d
at 744, with the dang er of “‘putting some g eneral s ea l o f approva l on an expert afte r he has been
q u al i fi ed but befor e any questions have been posed to him.’” Six th Circuit Criminal Patt er n J u ry I nstruction 7.03, Commi ttee C omme n t ar y (2009) (quoting Berry v. City of Detroit , 25 F.3d 1342, 1351 (6th Cir. 1994)).

Dodson’s contra

ry arg ument rests primarily on analog y to Lopez-Me dina , wher e this
court found that ad m i s sion of law-e nforc ement personne l’s testimony as both fac t and expert witnesses, without a dual-purpose instruction and without any clea r dema rca tion between f

act a nd expert testimony , was plain err or. Lopez -M ed i n a , 461 F.3d at 742–45. This court, howeve r, has “dec lined to extend the holding in Lopez-Me dina to circ umstances in which there wer e no other evidentiar y err ors.” United States v. Vasquez , 560 F.3d 461, 470–71 (6th Cir. 2009) (citing Martin , 520 F.3d at 659–60). Dodson makes no other evidentiar y cl ai m s. Thus, Lopez-Me dina does not control. Fur

thermore , the trial court’s jury instruction—while not contempora neous—wa s n ea rly identical to the instructions the Lopez-Me dina court sug g ested would be sufficie nt. Compare R. 355 at 768–69 (jury instructions, as recor d ed in trial transcr ipt), with Lopez-Me dina , 461 F.3d at 743. The only materia l differ ence was that, instead of using the term ‘expert witness,’ the trial court used

- 10 -No. 08-6297

United States v. Dodson the term ‘witness.’ Thus, unlike the court in Lopez-Me dina , the court here “g uard[ed] a g ainst the 6 ri s k of confusion inhere nt when a law enforce ment ag ent t estifies as both a fact wit ness and as a n expert witness.” Lopez-Me dina , 461 F.3d a t 744.

We hold, there fore , that the t rial cou rt d i d not commit err or, m uch less plain err or, by admitting law-e nforc ement office rs’ opinion testimony in evidenc e, then g iving an instruction substantially identical to Sixt h Circuit Criminal P attern Jury I nstruction 7.03 in its j ury -cha rg e. I V The g overnme nt prese nted evidenc e sufficie nt to convict Dodson on both counts of the i ndictment , an d t h e dis trict court did not commit plain err or i n admitting the office rs’ opini on testimony without a contempora neous dual-role instruct i o n . We there fore AFF I RM Dodson’s conviction.

This court’s de cision in Johnson , 488 F.3d a t 697–98, require d such an a lteration. 6 - 11 -