2010 Decisions

Opinions of the United

States Court of Appeals

for the Third Circuit

9-20-2010

USA v. Michael Barrett

Precedential or Non-Precedential: Non-Precedential

Docket No. 09-1378

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Recommended Citation

"USA v. Michael Barrett" (2010). 2010 Decisions. Paper 579.

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NOT PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

 

No. 09-1378

 

UNITED STATES OF AMERICA

v.

MICHAEL BARRETT,

 Appellant

 

Appeal from the United States District Court

for the Eastern District of Pennsylvania

(D.C. Criminal No. 2-07-cr-00001-002)

District Judge: Honorable J. Curtis Joyner

 

Submitted Under Third Circuit LAR 34.1(a)

September 13, 2010

Before: RENDELL, FISHER and GARTH, Circuit Judges.

(Filed: September 20, 2010)

 

OPINION OF THE COURT

 

RENDELL, Circuit Judge.

Defendant Michael Barrett appeals his convictions and sentence on drug and gun

charges stemming from two separate arrests, the first in connection with a police search

of an apartment and the second in connection with a police search of Barrett’s car. 
 The District Court had jurisdiction pursuant to 18 U.S.C. § 3231. Our 1

jurisdiction arises under 28 U.S.C. § 1291 and 18 U.S.C. § 3742(a).

2

Barrett was convicted of possession of heroin, cocaine base, and marijuana; possession of

a firearm in furtherance of drug trafficking; possession of a firearm by a convicted felon;

and related school-proximity counts based on charges arising out of the apartment search. 

The District Court held a separate trial for the charges arising out of the car search, in

which Barrett was convicted of possession of a firearm by a convicted felon but acquitted

of marijuana possession, possession of a firearm in furtherance of drug trafficking, and a

related school-proximity count. 

Barrett’s appeal raises four issues: 1) he challenges the District Court’s admission

of the testimony of two different police officers under Federal Rules of Evidence 701(c)

and 704(b); 2) he challenges the sufficiency of the evidence used to establish constructive

possession in both trials and to establish that possession of a firearm in the first trial was

in furtherance of drug trafficking; 3) he challenges the reasonableness of his sentence;

and 4) he asks to preserve his right to move for a new trial pending the outcome of law

enforcement investigations of Officer Jeffrey Cujdik. We find that none of his arguments

has merit, and we will affirm.1

I.

Barrett first argues that the District Court erred when it admitted (a) the testimony

of Philadelphia Police Sergeant Michael Gorman that the evidence found in the apartment
 Barrett objected to Gorman’s testimony, but only on relevance grounds, even 2

though the District Court specifically raised the question of Gorman’s qualifications to

offer the testimony. Under these circumstances, we cannot conclude that the substance of

Barrett’s Rule 701 and 704 objections “were made known to the court by offer” or were

“apparent from the context within which questions were asked.” Fed. R. Evid. 103(a)(2). 

3

in which Barrett was arrested was consistent with a large-scale drug operation and (b) the

testimony of Detective Freddie Chaves concerning the connection between the firearms

found in the apartment and the drug operation.

Sergeant Gorman testified that the evidence recovered from the apartment where

Barrett was arrested reflected “a large-scale operation for the sale of heroin and cocaine”

and that the “individuals that were inside of this location were running a large-scale”

operation. Barrett argues that this testimony was impermissible lay opinion testimony in

violation of Federal Rule of Evidence 701 or, alternatively, that the testimony provided an

impermissible expert opinion as to the defendant’s mental state in violation of Federal

Rule of Evidence 704(b). 

Because Barrett failed to preserve these issues at trial, we review them for plain

error. See United States v. Boone, 279 F.3d 163, 174 n. 6 (3d Cir. 2002). Thus, Barrett 2

must show that the District Court erred, that the error is so obvious under the law so as to

be plain, and that the error affected substantial rights. See Johnson v. United States, 520

U.S. 461, 467 (1997). 

Barrett cannot satisfy this standard. His first argument fails because Sergeant

Gorman’s opinion that the evidence recovered from the trash pulls reflected a large-scale
4

drug operation was not based on any “scientific, technical, or other specialized

knowledge.” Fed. R. Evid. 701. In light of uncontroverted testimony that the police had,

on several occasions, recovered bags containing cocaine and heroin residue and other

materials commonly used to package drugs (rubber gloves, a surgical mask, and empty

baking soda boxes) from trash that came from inside the apartment, Gorman’s conclusion

that the apartment was used to conduct a “large-scale” drug operation was the sort of

conclusion that any reasonable layperson could have reached; it did not reflect any

particular expertise. See Fed. R. Evid. 701 advisory committee notes (explaining that

testimony that “‘results from a process of reasoning familiar in everyday life’” is

permissible under the Rule) (quoting State v. Brown, 836 S.W.2d 530, 549 (Tenn. 1992)).

Similarly, Gorman’s testimony that “the individuals that were inside of this

location” were running a large-scale drug operation did not violate Rule 704(b). 

Gorman’s testimony concerned acts that were occurring inside the apartment and did not

offer an opinion on anyone’s mental state. Moreover, the context of Gorman’s testimony

makes clear that he was speaking generally about whoever was operating out of the

apartment, not about Barrett in particular. Thus, Gorman was not “testifying with respect

to the mental state or condition of” the defendant, Fed. R. Evid. 704(b), and the District

Court did not plainly err in admitting his testimony.

Barrett also argues that Detective Chaves’s testimony violated Rule 704(b).

Because Barrett properly preserved his objection to Chaves’s testimony, we review for
 Our standard of review for challenges to the sufficiency of evidence presented to 3

a jury is particularly deferential. United States v. Dent, 149 F.3d 180, 187 (3d Cir. 1998). 

We view the evidence in the light most favorable to the government, and will sustain the

verdict if any rational trier of fact could have found the essential elements of the crime

beyond a reasonable doubt. Id. (citations omitted). 

5

abuse of discretion. United States v. Watson, 260 F.3d 301, 306 (3d Cir. 2001). 

Detective Chaves was qualified and testified as an expert on the connection between

drugs and guns. He described the general connection between drugs and guns and

testified that the presence of guns in the apartment in which Barrett was arrested was

“consistent” with the use of guns for protection in a drug operation. The testimony did

not reference Barrett (and, in fact, Chaves elsewhere made clear that he was not involved

in the investigation and his testimony had “[n]othing to do with the persons who were

arrested”) or provide any insight into any particular individual’s state of mind. Therefore,

the District Court’s decision to admit the testimony was not an abuse of discretion. See

United States v. Davis, 397 F.3d 173, 179 (3d Cir. 2005) (finding no abuse of discretion

where district court admitted expert testimony that provided “no potential for the jury to

conclude” that the witness “had any special insight into the thoughts or intent of the

defendants”).

II.

Barrett’s second argument incorporates three sufficiency of the evidence

challenges.3

First, Barrett contends that the government presented insufficient evidence to
6

establish that he constructively possessed the drugs and firearms found in the search of

the apartment. “Constructive possession exists if an individual knowingly has both the

power and the intention at a given time to exercise dominion or control over a thing,

either directly or through another person or persons.” United States v. Iafelice, 978 F.2d

92, 96 (3d Cir. 1992)(internal quotations omitted). Dominion and control need not be

exclusive, but they must be established by something more than “[m]ere proximity.” 

United States v. Introcaso, 506 F.3d 260, 270-71 (3d Cir. 2007)(citations omitted). 

Here, in addition to having been found in an apartment containing drugs and

packaging material in plain view in the kitchen and guns hidden in the living room,

Barrett had a key to the apartment in his pocket; he was observed by the police disposing

of trash from the apartment that was found to contain drugs and drug packaging

paraphernalia; and he fled to the second floor when the police arrived to execute the

warrant. Thus, the government did not rely solely on Barrett’s proximity to the drugs or

guns, and evidence of Barrett’s constructive possession of the drugs and guns was

sufficient to support the jury’s convictions.

Second, Barrett argues that the evidence presented was insufficient to support the

jury’s conviction for possession of the guns in furtherance of drug trafficking activities

under 18 U.S.C. § 924(c). In United States v. Sparrow, 371 F.3d 851, 853 (3d Cir. 2004),

we set forth the following, nonexclusive list of factors that are relevant to establish a

connection between guns and drug trafficking activities for purposes of charges brought
7

under § 924(c): the type of drug activity, the accessibility of the weapon, whether the

weapon is stolen, whether possession of the weapon is legitimate or illegal, whether the

weapon is loaded, proximity to drugs recovered, and the time and circumstances of

recovery. All of those factors support the conviction in this case, where the evidence

showed that the premises were used to package drugs; the guns were easily accessible to

any person in the apartment; one of the weapons did not have a serial number and the

other was stolen; Barrett did not have a permit for the guns and, as a convicted felon, was

prohibited from owning a firearm; the weapons were loaded; and the guns were recovered

during the execution of a duly authorized warrant. Thus, on this charge, too, the evidence

supported the jury’s conviction.

Third, Barrett challenges the sufficiency of the evidence presented in the second

trial to establish that he possessed the gun that the police found in his vehicle. Here

again, the evidence was sufficient to support the jury’s verdict. Barrett owned, and was

the only passenger in, the car that was the subject of the search. The government offered

testimony that Barrett was under police surveillance, that he was observed engaging in

what appeared to be narcotics sales, and that he ran a red light to avoid police

surveillance, after which he was stopped and arrested. The police secured a warrant to

search the car, and found the gun, which was loaded, under the front passenger floor mat. 

Taken together, Barrett’s ownership and operation of the car and the circumstances

surrounding Barrett’s arrest provide sufficient evidence that Barrett constructively
8

possessed the gun. See United States v. Iafelice, 978 F.2d 92, 97 (3d Cir. 1992). 

Accordingly, we will not disturb the jury’s verdict.

III.

Barrett’s third issue on appeal challenges the reasonableness of his sentence. As

Barrett did not raise his objection at sentencing, our review is for plain error. See United

States v. Couch, 291 F.3d 251, 252-53 (3d Cir. 2002). 

Barrett argues that the District Court erred in adopting a sentencing calculation that

incorporated the portion of U.S. Sentencing Guidelines § 2D1.1 that treats 1 gram of

crack cocaine as the equivalent of 100 grams of powder cocaine for purposes of

calculating an offender’s Base Offense Level. According to Barrett, the District Court

“should have started the sentencing analysis with a guidelines range that was calculated

using a lower ratio than 100:1.” App. Br. 45.

This challenge fails, for two reasons. First, the District Court did not err in using

the ratio set forth in § 2D1.1 to calculate Barrett’s Base Offense Level. In Kimbrough v.

United States, 552 U.S. 85 (2007), and Spears v. United States, 129 S. Ct. 840 (2009), the

Supreme Court held only that a sentencing court may depart from the Guidelines’ 100:1

ratio, not that it must do so. See, e.g., United States v. Wise, 515 F.3d 207, 223 (3d Cir.

2008) (holding, after Kimbrough, that sentence imposed based on range calculated using

100:1 ratio was not substantively unreasonable). 

Second, even assuming that Barrett’s Base Offense Level had been calculated
9

incorrectly (although, as discussed above, it was not), that would not have affected his

guideline sentencing range. Barrett’s sentencing range was determined based on his

status as career offender under Sentencing Guideline § 4B1.1, which yielded an offense

level of 34 and superseded his § 2D1.1 Base Offense Level of 28. Changing the ratio

used to calculate Barrett’s § 2D1.1 Base Offense Level would not change his § 4B1.1

career offender offense level and, therefore, would not lower Barrett’s ultimate

sentencing range. Cf. United States v. Mateo, 560 F.3d 152, 154-55 (3d Cir. 2009)

(where defendant’s sentencing range was determined by the alternative career offender

level set forth in § 4B1.1, district court did not err in denying defendant’s motion to

reduce his Base Offense Level).

IV.

Finally, Barrett asks this Court to preserve his right to challenge his conviction at a

future date pending the outcome of ongoing state and federal investigations of

Philadelphia Police Officer Jeffrey Cujdik. Officer Cujdik is under investigation based

on allegations that he engaged in misconduct in the preparation of search warrants

involving a particular confidential informant. Officer Cujdik was not the affiant on the

warrant used to search the apartment that led to Barrett’s arrest, and the confidential

informant implicated in the investigations is not the confidential informant on whom the

police relied in Barrett’s case. In fact, Barrett does not allege wrongdoing by Cujdik or

any other officer in connection with this case; he argues only that the investigations might
10

turn up evidence that he could use to challenge his conviction at a later date.

We deny Barrett’s request. Barrett does not seek any immediate relief, and does

not point us to any authority that would allow us to hold his case in abeyance pending the

outcome of the ongoing investigations. Should the investigations uncover any

information that impacts Barrett’s conviction, Barrett may apply to the District Court for

appropriate post-conviction relief. See 28 U.S.C. § 2255. 

V.

For the foregoing reasons, we will affirm the judgment of the District Court.