1 District Judge of the Southern District of Texas, sitting by

designation. IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

_____________

No. 93-1092

_____________

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

VERSUS

RAY DALE SPEER and WILLIAM ROBERT WEEKS, JR.,

Defendants-Appellants.

____________________________________

Appeals from the United States District Court

for the Northern District of Texas

____________________________________

(August 22, 1994)

Before KING and SMITH, Circuit Judges, and KAZEN, 1 District Judge.

KAZEN, District Judge:

Defendants, Ray Dale Speer ("Speer") and William Robert Weeks,

Jr. ("Weeks"), appeal from their conviction s for (1) felon in

possession of a firearm, in violation of 18 U.S.C. § 922(g)(1); (2)

possession with i ntent to distribute approximately 30 grams of

cocaine, in violation of 21 U.S.C. § 841(a)(1); and (3) carrying or

using a firearm, a F.I.E. .32 caliber semiautomatic pistol, during

and in relation to the commission of a drug trafficking offense, in

violation of 21 U.S.C. § 924(c)(1 ). Defendants present three2

common issues for review. They both challenge the trial judge's

refusal of a tendered jury instruction on their defense to the

cocaine charge, as well as the admission of expert testimony and

the sufficiency of the evidence on that same issue. Additionally,

Speer appeals the trial judge's excusal of a seated and sworn juror

while Weeks appeals the sufficiency of the evidence on his firearm

convictions and a sentencing enhancement under 18 U.S.C. § 924(e).

We have concluded that none of the issues warrant reversal.

I.

Background

The follo wing recitation of facts reflects the evidence as

viewed in the light most favorable to the jury's verdict. See

United States v. Willis

, 6 F.3d 257 , 264 (5th Cir. 1993). Ron

Wooten ("Woot en"), an undercover officer with the Tarrant County

Narcotics Intelligence Coordination Unit, put out word on the

street that he had an oun ce of cocaine for sale. On April 14,

1992, Wooten met with paid informant Ray Stovall ("Stovall"),

Rebecca Smith ("Smith"), and Karen Lind strom ("Lindstrom"), an

undercover officer with the Fort Worth Drug Task Force to discuss

the potential sale of cocaine to Smith and a friend of Smith's,

Beth Pierce ("Pierce"). Wooten agreed to meet with Smith, Stovall

and Pierce later that day in the Burrus Food Store parking lot in

River Oaks, Texas, once the prospective purchasers obtained the

money to make the purchase. Stovall went with Smith to Pierce's

apartment to check about the money.

Pierce did not have the money at the apartment, so she3

telephoned Speer and told him to bring it over and come with them

to River Oaks. Speer arrived with the money. Meanwhile Weeks came

t o the apartment but left after a brief stay. Stovall needed to

drop off a pickup truck before the trip to River Oaks, so Pierce,

Speer and Smith followed him in Pierce's car. Although the four

intended to proceed to the Burrus parking lot, they returned to the

apartment and lef t Pierce there because she was feeling ill. In

the interim, Weeks had returned to the apartment and, at Speer's

request, Weeks drove the group to River Oaks in Pierce's car.

Wooten was waiting in the Burrus parking lot when the group

arrived, and Weeks parked the car next to Wooten's pickup. Speer

was in the front passenger seat next to Weeks, while Smith and

Stoval l were in the back seat. Wooten approached and talked to

Weeks through the driver's window. During the conversation, he

observed a handgun under Speer's inner right thigh. When Wooten

asked about the presence of the "heat," Weeks volunteered that it

was "there to assure that [Wooten] was not going to rip him off."

Wo oten then asked Weeks to come to the back of Wooten's pickup,

w here they both leaned into the bed of the truck over the top of

the tailgate. Wooten produced the cocaine and Weeks attempted to

weigh it, without success, on scales he had brought with him.

After being assured by Wooten that the cocaine would "weigh heavy,"

Weeks gave Wooten the money and took the cocaine. Wooten gave the

arrest signal. Moments later, Weeks was arrested against the fence

at the rear of the pickup. Speer and Smith were arrested after

being pulled out of the car. The gun, scales and cocaine were4

found in the car.

II.

Jury Charge

Defendants Weeks and Speer were convicted of possessing

cocaine w ith the intent to distribute under 21 U.S.C. §841(a)(1)

and 18 U.S.C. §2. Both Defendants appeal the trial judge's

omission of the following tendered jury charge on their defense:

If you find that Beth Pierce, Rebecca Smith, Ray Speer

and/or William Weeks, Jr. acted in concert, that is

jointly, with one another in the purchasing of the

cocaine alleged in the indictment, and that the cocaine

was for their group without further distribution

purposes, you mus t find the defendants not guilty of

possession of cocaine with the intent to distribute.

We review the charge omission for abuse of discretion. U nited

States v. Correa-Ventura , 6 F.3d 1070, 1076 (5th Cir. 1993). The

trial co urt is given wide latitude "in determining what

instructions are merited by the evidence presented." I d

. However,

where the court "refuse[s] a charge on a defense theory for which

there is an evidentiary foundation and which, if believed by the

jury, would be legally sufficient to render the accused innocent,

this court pr esumes that the lower court has abused its

discretion." Id

.

Defendants rely on the case of United States v. Swiderski

, 548

F.2d 445 (2d Cir. 1977), for the proposition that if persons are

acting "in concert" to obtain drugs for their own use, they cannot

be guilty of possession with intent to distribute. The Swiderski

court expressly limited its holding "to the passing of a drug

between joint possessors who simultaneously acquired possession at5

the outset for their own use." I d

. at 450-51. This Circuit has

never adopted the Swiderski doctrine nor have we found that any

other circuit has done so. In U nited States v. Young

, 655 F.2d 624

(5th Cir. 1981), we found Swiderski inapplicable to a defendant

who, while negotiating the sale of cocaine, was also sampling it.

Id

. at 627. In U nited States v. Po ol , 660 F.2d 547 (5th Cir.

1981), without mentioning Swiderski by name, we observed that the

statutorily prohibited distribution of drugs may, "in appropriate

circumstances," refer to the distribution of a controlled substance

from one conspirator to another. Id . at 561.

In a factual situation very similar to the instant case, the

Ninth Circuit declined to follow Swiderski. See United States v.

Wright

, 593 F.2d 105, 108 (9th Cir. 1979). There the defendant was

given money by a friend and asked to procure heroin so that the two

might use it together. The defendant left the friend's dwelling,

procured the heroin, and returned to the friend, where upon they

"snorted" it together. I d

. Expressly without endorsing S widerski

,

the Ninth Circuit found it inapplicable because the two users in

question had not purchased the substance simultaneously. Instead

the defendant "operated as the link between the person with whom he

intended to share the heroin and the drug itself." I d

. The W right

court noted this language from Swiderski itself: "The agent who

delivers to his principal performs a service in increasing the

distribution of narcotics. Without the agent's services the

principal might never come into possession of the drug." I d.,

quoting Swidersk i, 548 F.2d at 541.2 Rule 704(b) states:

No expert witness testifying with respect to

the mental stat e or condition of a defendant

i n a criminal case may state an opinion o r

inference as to whether the defendant did or

did not have th e mental state or condition

constituting an element of the crime charged

or of a defense thereto. Such ultimate issues

are matters for the trier of fact alone.

6 We also need not pass on the validity of the Swiderski

doctrine because, just as in Wright

, the doctrine does not apply to

t he facts of this case. The evidence here shows that only Weeks

and perhaps Speer and Smith, could be said to have "simultaneously"

acquired possession of the cocaine. It is undisputed that at least

some of the cocaine was intended by the trio to be subsequently

distributed to Pierce, who was not at or near the scene of the

transaction. Accordingly the trial court did not abuse its

discretion in declining to give the proffered instruction.

III.

Expert Testimony

Defendants contend that the trial court erred in admitting the

expert testimony of DEA Agent Lunt ("Lunt"), because his testimony

exceeded the limitation of Fed.R.Evid. 704(b) 2 or alternatively,

that his testimony was an impermissible use of "profile" evidence

as substantive evidence of guilt. "We review a trial judge's

admission of evidence under an abuse of discretion standard."

United States v. Williams

, 957 F.2d 1238, 1240-41 (5th Cir. 1992).

Agent Lunt is a twenty-year-plus veteran of the DEA who has

been involved in several hundred drug arrests involving both large

and small amounts of drugs. He was not involved in the arrest of7

the Defendants. The following are excerpts from Lunt's direct

examination, which the court allowed over both defense counsels'

objections:

Government: Agent Lunt, pursuant to the testimony in

this case that individuals have taken possession of 30

grams of cocaine, now, from that, do you have an opinion

as to what a person being in possession of cocaine would

be consistent with or not consistent with?

. . . Lunt: It is my opinion that a person in possession of 30

grams of cocaine is consistent with narcotic trafficking.

In my experience, it is not consistent that a person that

would purchase 30 gra ms of cocaine would purchase that

for his own personal use.

. . . Government: Agent Lunt, in this case there's been

testimony that during the buy in whic h the defendants

b ought 30 grams of cocaine from an undercover officer,

one of the defendants pulled out a scale that weighs in

grams. Pursuant to your expertise, do you have an

opinion regarding what th at would be consistent with,

that person pulling out scales and buying a weight [sic]

in 30 grams?

. . . Lunt: That possession of scales is consistent with

narcotic trafficking.

. . . Lunt: From my experience, I think it would be

inconsistent for a user to carry a scale around.

Following these responses, Lunt explained the grounds for these

opinions, descr ibing in some detail his previous experience with

drug arrests.

The benchmark case involving Rule 704(b) is United States v.

Dotson , 817 F.2d 1127 (5th Cir. 1987), aff'd in pertinent part on

reh'g , 821 F.2d 1034 (1987), which involved a tax evasion charge.

In Dotson

, a panel of this Court found that the district court did

not abuse its discretion in permi tting the following expert

testimony:

In 1983, ag ain, [Dotson's net worth] increased again8

forty thousand dollars, almost the same amount it did in

1981 through the period, so they are consecutive

increases, which lead me to believe that Mr. Dotson's net

worth and/or his equity was incre asing through the

period. This is indicative, and based on my experience

shows to me, that he willfully and intentionally

inc reased his income knowing full well that he had not

reported the taxes due thereon.

Id

. at 1132. The D otson court acknowledged that the second quoted

sentence was on the "borderline" between a forbidden opinion on the

"u ltimate legal issue" and a mere explanation of the expert's

analysis of facts which would tend to support a jury finding on the

ultimate issue. I d

. The court found it noteworthy that "the focus

of the government's questions was on facts that might support the

jury's acceptance of an inference of intent... [and] the responses

of the expert were also focused on the evidence, rather than

addressing the ultimate issue forbidden by rule 704." Id

. The

court also considered that the appellant did not renew an earlier

objection when the questionable statement was made. I d

. It

concluded that, "viewed in the context of that otherwise

straightforward portion of [the expert's] examination," an

interpretation of the sentence in favor of the government was more

reasonable. Id

.

This Court has since cited Dots on for the proposition that

Rule 704(b) is not strictly construed and prohibits only a direct

statement of the defendant's in tent. U nited States v. Triplett

,

922 F.2d 1174, 1182 (5th Cir.), cert. denied

, 50 0 U.S. 945, 111

S.Ct. 2245, 114 L.Ed.2d 486 (1991); United States v. Masat

, 896

F.2d 88, 93 (5th Cir 1990). Similarly, in U nited States v. Moore

,

997 F.2d 55, 57-58 (5th Cir. 1993), without exp ressly mentioning3 We also disagree that Lunt's testimony was an impermissible use of profile evidence.

Profile evidence is "a compilation of characteristics which aid law enforcement officials in

identifying persons who might be trafficking in illegal narcotics." W illiams

, 957 F.2d at 1242.

Lunt explained the meaning of physical evidence--cocaine and scales--found at the scene of the

transaction. There is no issue of identity here. S ee, e.g., United States v. Robinson

, 978 F.2d

1554, 1564 (10th Cir. 1992), cert

. denied, _____ U.S. ____, 113 S.Ct. 1855, 123 L.Ed.2d 478

(1993) (discussion of profile evidence inappropriate because testimony related to direct

evidence).

9 Rule 704(b), we upheld the testimony of an expert who "never

t estified explicitly as to the defendants' intent or state of

mind."

Agent Lunt's statements in this case do not cross the

"borderline" defined in Dotson

. We conclude that his testimony can

more accurately be characterized as an analysis of the evidence in

the light of his special knowledge as an expert in the area of

narcotics tra fficking. The district court did not abuse its

discretion in admitting this testimony. 3

IV.

Excusal of Juror

Defendant Speer contends that the record lacks factual support

for the trial judge's decision to excuse a seated and sworn juror.

"[I]t is within the trial judge's sound discretion to remove a

juror whe never the judge becomes convinced that the juror's

abilities to perform his duties become impaired." U nited States v.

Huntres s, 956 F.2d 1309, 1312 (5th Cir. 1992), cert. denied

,

__

U.S.

__, 113 S.Ct. 2330, 124 L.Ed.2d 243 (1993), citing United

States v. Dom inguez , 615 F.2d 1093, 1095 (5th Cir. 1980). This

Court will not disturb the trial judge's decision unless there is4 Speer's attorney conceded that he could not understand

Corley's explanation about her conflicting appointment, but

nevertheless argued that Corley could understand English and that

the "other jurors can be patient enough to make sure that she has

an independent voice in this matter."

10 prejudice to the defendant or another party. H untress

, 956 F.2d at

1312.

Before the commencement of trial in this case, seated and

sworn juror Yu-Mei Corley ("Corley") informed the court that she

had a scheduling conflict the following day. When the district

judge questioned her regarding the nature of the conflict, Corley

first responded that she thought "they wouldn't pick on me because

of my English problem, and plus I have appointment t omorrow."

After questioning Corley at length, neither the judge nor any of

the three attorneys present could discern the purpose of her

appointment. 4 When asked if she had trouble communicating in

English, Corley stated "I unders tand but sometimes they have to

repeat two or three times and make it mor e understand." She also

stated that she had to repeat herself to be understood by others.

Over Speer's objection, the judge excused Corley because he

believed that the other jurors would not be able to communicate

with her and that she "probably would detract from [the jury

process] by causing difficult y in the deliberations." The judge

replaced Corley with a duly selected alternate juror. The record

adequately supports the judge's determination that Corley's ability

to perform her duties as a juror were impaired by her inability to

understand or communicate effectively in English. Accordingly, we

find no abuse of discretion.11 V.

Sufficiency of Evidence

"In reviewing a verdict challenged on the sufficiency of the

evide nce, this Court views the evidence, whether direct or

circumstantia l, and all reasonable inferences drawn from the

evidence, in the light most favorable to the jury's verdict...[to]

determine whether `a rational trier of fact could have found that

the evidence established the es sential elements of the offense

beyond a reasonable doubt'." W illis

, 6 F.3d at 264 (citations

omitted).

A. § 841(a)(1) Conviction s

Both Defendants challen ge the sufficiency of the evidence

underlying their convictions for possession of cocaine with intent

to distribute . Weeks specifically challenges the possession

element of the offense. Pointing to the fact that the cocaine was

ultimately found in t he car, Weeks argues that he could not have

been in possession of it. Based on evidence that the arrests

occurred quickly and that he was found against a fence where the

cars were parked, he maintains that it would have been a physical

impossibility for him to have received the cocaine and place it in

the Pierce car before the arrest. He suggests that officer Wooten

never gave him the cocaine but instead planted it in the car. On

the other hand, Wooten unequivocally testified that he gave the

cocaine to Weeks in exchange for money. He also testified that he

and Weeks were standing between the two cars when the arrest signal

was first given. The various testimonies describing the time lapse12

between the arrest sign al and the arrests were obviously only

estimations. The jury was free to believe Wooten's testimony and

could have concluded from Weeks' own proximity to the car that he

was the person who thereafter pla ced, or tossed, the cocaine

inside. The evidence was sufficient to support a finding that

Weeks had actual possession of the cocaine.

Both defendants challenge the sufficiency of the evidence on

the intent-to-distribute element. While conceding that at least

some of the cocaine was intended for distribution to Both Pierce,

the defendants argue that such distribution would be insufficient

as a matter of law under the Swiderski doctrine . For reasons

discussed in Part II, supra

, we reject that argument. The

defendants also contend that the opinion testimony of Agent Lunt

concerning a possible wider distribution plan was le gally

insufficient for reasons we have discussed and also rejected in

Part III, supra . We conclude that the evidence was sufficient to

s ustain the convictions of both defendants for possession with

intent to distribute cocaine.

B. Weeks' § 922(g)(1) Conviction

Defendant Weeks challenges the sufficie ncy of the evidence

that, as a felon, he knowingly possessed a firearm, observing that

he did not own the vehicle in which the weapo n was found, he was

not present when Speer obtained the weapon and had no access or

control over the weapon or over Speer, who actually possessed the

gun. Knowing possession of the firearm is an essential element for

conviction under §922(g)(1). U nited States v. Murray , 988 F.2d13

518, 521 (5th Cir. 1993). Possession may be actual or

constructive. U

nited States v. Perez

, 897 F.2d 751, 754 (5th Cir.

1990), cert. denied , 498 U.S. 865, 111 S.Ct. 177, 112 L.Ed.2d 141

(1990). Constructive possession is the "exercise of, or the power

or right to exercise dominion and control over the item at issue

and may be shown by dominion over the vehicle in which the item is

located." I d .; see United States v. Orozco

, 715 F.2d 158, 161 (5th

Cir. 1983)(constructive possession of weapon located in trunk where

defendant-passenger did not own vehicle, but had kept it at his

home).

We recently upheld a jury's finding of constructive possession

of a firearm by a felon who was the driver of a vehicle, where the

firearm was found under the driver's seat, and the defendant had

matching ammunition on his person. United States v. Prudhome , 13

F.3d 147, 149 (5th Cir.) cert. denied

,

___ U.S.

___, 114 S.Ct.

1866, 128 L.Ed.2d 487 (1994). Here, defendant Weeks was the driver

of a vehicle in which the front-seat passenger was in visible

possession of a firearm. When undercover agent Wooten questioned

the presence of the firearm, Weeks himself responded that it was in

the vehicle so that he would not be "ripped off." We conclude that

this is sufficient evid ence that Weeks was in constructive

possession of the weapon in violation of § 922(g)(1).

C . Weeks' § 924(c) Conviction

Under this section, the Government was req uired to prove 1)

that Weeks committed the drug-trafficking crime of possession with

the intent to distribute cocaine and, 2) that he knowingly used or14

carried the firearm, 3) during and in relation to that crime. S ee

Willis

, 6 F.3d at 264. Actual possession or use of the firearm is

not necessary; it need only have been "available to provide

protection to the defendant in connec tion with his engagement in

drug trafficking." I d. citing United States v. Mora

, 994 F.2d

1129, 1140-41 (5th Cir.) cert. denied

,

___ U.S.

___, 114 S.Ct. 417,

126 L.Ed.2d 363 (1993).

We have already found the evidence sufficient to prove that

Weeks possessed cocaine with intent to distribute. However, Weeks

disputes the sufficiency of the evidence that he knowingly used or

carried the firearm. The "carrying" requirement of Section 924(c)

is met where a defendant operates a vehicle knowing the firearm is

in the car. U

nited States v. Ruiz

, 986 F .2d 905, 910 (5th Cir.)

cert. denied

,

___ U.S.

___, 114 S.Ct. 145, 126 L.Ed.2d 107 (1993);

United States v. Pineda-Ortuno

, 952 F.2d 98, 104 (5th Cir.), cert.

denied

,

__ U.S.

__, 112 S.Ct. 1990, 118 L.Ed.2d 587 (1992). Weeks'

response to the undercover agent's question regarding the purpose

of the weapon supports a finding that he knew that the weapon was

in the vehicle when he operated it, therefore "carrying" the weapon

under Ruiz

.

Weeks next disputes tha t there is sufficient evidence of a

relationship between the firearm and the drug trafficking crime,

apparently because the firearm was in the vehicle while the

transaction took place outside. We have previously held that a

reasonabl e jury could conclude that a shotgun, displayed in the

rear window of a pickup truck used to deliver marijuana, served to15

protect the defen dant "in the course of distributing the

marihuana." United States v. Coburn , 876 F.2d 372, 375 (5th Cir.

1989). Here, the visibility of the firearm, as well as Weeks'

statement about the purpose of the weapon, establishes that it was

intended to serve as protection in relation to the drug trafficking

offense. Accordingly, we find that there was sufficient evidence

in the record to sustain Weeks' conviction on 924(c).

VI.

Enhancement of Weeks' Sentence

Defendant Weeks appeals the enhancement of his sentence under

1 8 U.S.C. §924(e). We review the sufficiency of proof of prior

convi ctions d e novo

. U nited States v. Martinez-Cortez

, 988 F.2d

1408, 1410 (5th Cir.) cert. denied

,

___ U .S. ___, 114 S.Ct. 605,

126 L.Ed.2d 570 (1993). There is no dispute that Weeks has

numerous prior fe lony convictions: 1978 in Georgia (burglary),

1982 in Matagorda County, Texas (burglary of habitation); 1988 in

Houston (robbery); 1988 in Montgomery County, Texas (burg lary of

habitation); 1988 in Houston (burglary of a building). Contrary to

Weeks' argument, burglary is a crime of violence for purposes of §

924(e). U

nited States v. Blankenship

, 923 F.2d 1110, 1118 (5th

Cir.) cert. denied , 500 U.S. 954, 111 S.Ct. 2262, 114 L.Ed.2d 714

(1991). Weeks also appears to argue that his burglary convictions

should be lumped together because they should be considered "one

continuous course of criminal conduct." This position is also

contrary to Fifth Circuit precedent. In U .S. v. Washington

, 898

F.2d 439, 440 (5th Cir.), cert

. denied

, 498 U. S. 842, 111 S.Ct.16

122 , 112 L.Ed.2d 91 (1990), the activities underlying the prior

convictions were committed within a few hours of each other, at the

s ame location and against the same victim. We held that because

the defendant "successfully completed" and "safely escaped" the

first robbery , with an intervening period devoid of criminal

activity before committing the second robbery, the convictions were

based on distinct criminal episodes. I d

. at 442. The incidents

underlying Weeks' various convictions are months, days and even

years apart. We conclude that the district court properly counted

each of Weeks' prior convictions separately.

For the foregoing reasons, Weeks' and Speer's convictions and

Weeks' sentence are AFFIRMED.