1 The Honorable Laurie Smith Camp, United States District Judge for the District of Nebraska. 

## United States Court of Appeals FOR THE EIGHTH CIRCUIT

___________ No. 05-4449

___________ United States of America, *
* Plaintiff-Appellee, * * Appeal from the United States v. * District Court for the * District of Nebraska. Billy D. Davis, also known as Lil * Spook, *
* Defendant-Appellant. *

___________ Submitted: June 15, 2006 Filed: August 9, 2006

___________ Before BYE, LAY, and RILEY, Circuit Judges.

___________ LAY, Circuit Judge. A jury found Billy D. Davis guilty of conspiracy to distribute fifty grams or more of crack cocaine in violation of 21 U.S.C. § 846. On appeal, Davis challenges the district court’s 1 denial of his motion to suppre ss evidence seized pursuant to a traffic stop and subsequent search of his pe rson. Davis also argues the district court committed several evidentiary errors, incl uding: (1) admitting evidence regarding the seizure of crack cocaine unde r Federal Rule of Evidence 404(b); (2) refusing to admit2 Davis contended the instant prosecution was the result of a vendetta against him by Officer Gassaway. Davis was acqu itted by a jury in a previous federal prosecution in which Officer Gassaway was the case agent.
-2- Davis’ proposed expert testimony on senten cing; and (3) admitting hearsay testimony under the coconspirator exception. Finally, Davis raises several objections to the 360 month sentence imposed by the district court. For the reasons set forth below, we affirm.

I. B ACKGROUND At trial, the government’s case-in-chief relied upon the testimony of two Omaha Police Department officers and four cooperating witnesses. Davi s had two witnesses refute parts of the government’s cas e and testified on his own behalf.

A. Officer Gassaway Officer Jeffrey Gassaway of the Omaha Po lice Department was the first witness for the government. Officer Gassaway testif ied that while he had repeated contact with Davis during the course of his work , the police discovered Davis’ involvement in the instant conspiracy during the inves tigation, arrest, and prosecution of a large number of individuals involved in similar narcotics cases. 2Officer Gassaway also testified about the events following a tra ffic stop on February 12, 2001. The driver of the vehicle remained in the car while th ree passengers ran into a residence. After receiving permission from the owner to s earch the residence, officers found the occupants of the vehicle inside and a sm all baggie containing crack cocaine behind a downstairs toilet. The officers took hand swabs of the vehicle’s occupants, and Davis’ tested positive for crack cocaine. Ho wever, one of the other passengers of the vehicle claimed the crack belonged to him. The district court admitted the testimony of these events, over Davis’ objection, pur suant to Federal Rule of Evidence 404(b).3 Davis objected to these witnesses’ tes timony in a pro se letter filed with the court. After carefully considering Davi s’ arguments, we find them to be without merit.
-3- B. Officer Rieck Officer David Rieck of th e Omaha Police Department testified that he stopped a vehicle in which Davis was a passenge r on October 12, 2001, because the driver failed to signal a turn. As Officer Rieck turned on his lights to execute the stop, he saw an individual in the backseat, later identified as Davis, make “furtive movements.” Officer Rieck te stified it appeared Davis “raise[d] his torso up off the right rear seat, and his hand goes behind him as if he’s placing something either under him, under the seat, or somewhere on his person.” These movements suggested to Officer Rieck that Davis was trying to conceal something.

After informing the driver he was under arrest for driving with a suspended license, Officer Rieck asked the passengers to exit the vehicle so it could be searched. As Davis exited the vehicle, Officer Ri eck requested, and r eceived, permission to search Davis’ person. Officer Rieck testif ied that when he swept Davis’ buttocks area, he felt a rock or marble-like object. The officers handcuffed Davis, placed him in a police cruiser, and drove him approximate ly half a block to a police assembly building. Davis became very upset and began thrashing his body, requiring several officers to restrain him. At the police assembly building, Officer Rieck sought permission from his sergeant to conduct a stri p search on Davis. However, a strip search was not necessary because, due to Davis’ thrashing, his baggy pants and underwear had fallen below his waist. Officer Rieck then saw the tip of a plastic bag protruding from Davis’ buttocks and retrieved it.

C. Cooperating Witnesses The government also presented the testim ony of four cooperating witnesses, all of whom were serving lengthy prison terms for crack cocaine conspiracies. These witnesses recounted the details of various drug deals in which Davis played a part. 3-4- Victor Henderson, one of the cooperating witnesses, testified that he bought crack cocaine from Davis on two separate occasions through an intermediary. Both times, Henderson waited in a car while Parish Swift went inside a $.99 cent store. Henderson testified he lost sight of Swift wh en he entered the store, but when Swift returned he had crack cocaine and statedhe bought it from Davis. Davis objected to this testimony as hearsay. The district court allowed the statement to come into evidence under the coconspirator exception to the hearsay rule.

D. Evidence Presented by the Defense Davis testified on his own behalf, admitting that he sold marijuana and used crack cocaine, but denying that he ever soldcocaine. Davis also denied knowing two of the cooperating witnesses who testified against him. Marcus Brown testified on behalf of Davis, stating he observed O fficer Gassaway harassing Davis at a local festival. Parish Swift also testified, denying he ever bought crack cocaine from Davis on behalf of Victor Henderson. The districtcourt denied Davis’ request to call the Federal Public Defender for the District of Nebraska to provide expert testimony about the sentencing guidelines, statutory minimum sentences, and substantial assistance.

E. Sentencing The jury found Davis guilty of conspiracy to distribute or possess with intent to distribute 50 grams or more of crack co caine. The presentence investigation report held Davis accountable for 2.47 kilograms of crack cocaine, setting his offense level at 38. With a criminal history category of VI, the advisory guidelines range was 360 months to life in prison. Davis objected to the presentence investigation report’s calculation of drug quantity, arguing the attributed amount was based upon mere speculation and contending that the drug quantity should have been found by the jury. The district court adopted the findings of the presentence investigation report and sentenced Davis to 360 months’ imprisonment, at the low end of the advisory guidelines range.-5- II. D ENIAL OF M OTION TO S UPPRESS Davis first argues the district court e rred by refusing to suppress crack cocaine found on Davis’ person during the search conducted by Officer Rieck on October 12, 2001. When considering a denial of a mo tion to suppress, we review the district court’s factual findings for clear erro r and its legal conclusions de novo. United States v. Esquivias , 416 F.3d 696, 699 (8th Cir. 2005).

Law enforcement officers may briefly detain an individual for investigative purposes if they have a reasonable and ar ticulable suspicion of criminal activity. United States v. Bustos-Torres , 396 F.3d 935, 942 (8th Cir. 2005) (citing Terry v. Ohio , 392 U.S. 1, 25-31 (1968)). In determini ng whether reasonable suspicion exists, we consider the totality of the circumstances in light of the officers’ experience and specialized training. United States v. Arvizu , 534 U.S. 266, 273 (2002). During a Terrystop, an officer who has reason to belie ve the detained individual may be armed and dangerous may conduct a pat-down search for weapons to ensure officer safety. Bustos-Torres , 396 F.3d at 943.

During the course of the lawful traffic st op, Officer Rieck saw Davis rise off the seat and place his hand behind his back as if he were placing something underneath or behind him. Officer Rieck testified this behavior was unusual and raised suspicion that Davis was attempting to hide someth ing. Suspicious be havior by a passenger during a traffic stop may reasonably warrant a pat-down of the individual. See United States v. Moorefield , 111 F.3d 10, 13-14 (3d Cir. 1997) (collecting cases); see also United States v. Malone , 49 F.3d 393, 397 (8th Cir. 1995); United States v. Woodall , 938 F.2d 834, 837 (8th Cir. 1991). Moreover, the district c ourt concluded, and Davis4 Davis argues the search at the scene of the traffic stop went beyond the scope of his consent to conduct a search. Davis alleges Officer Rieck literally reached into Davis’ buttocks with his fingers. However, the district court chose to credit Officer Rieck’s version of the events, and we have no reason to dispute that conclusion. See Esquivias , 416 F.3d at 699-700.
-6- concedes, Officer Rieck received Davi s’ consent to search his person. 4We conclude that either of these grounds support the search of Davis at the scene.

As Officer Rieck swept Davis’ buttock s area, he felt a hard, marble-like substance and suspected Davis was attempti ng to conceal narcotics. While Davis concedes Officer Rieck had the right to execute the traffic stop and conduct the patdown, he argues that once Officer Rieck determined he was unarmed there was no legal authority to place hi m in handcuffs, transport him to the police assembly building, and further search him. We disagr ee. Davis’ suspicious behavior during the traffic stop and Officer Rieck’s subsequent discovery of whathe believed to be narcotics in Davis’ buttocks area gave Offi cer Rieck probable cause to believe Davis was attempting to conceal narcotics. See Bustos-Torres , 396 F.3d at 944-45; United States v. Williams , 139 F.3d 628, 630 (8th Cir. 1998); United States v. Craft , 30 F.3d 1044, 1045 (8th Cir. 1994); United States v. Hughes , 15 F.3d 798, 802 (8th Cir. 1994). The officers had probable cause to arrest Da vis, transport him to the police assembly building, and remove the crack cocaine from hi s person as a search incident to arrest. See United States v. Mendoza , 421 F.3d 663, 667-68 (8th Cir. 2005). Therefore, the district court properly denied Davis’ motion to suppress.

III. E VIDENCE OF P RIOR B AD A CTS Officer Gassaway testified he found crack cocaine behind a toilet in a residence Davis and two other men entered following the initiation of a traffic stop on February 12, 2001. Davis objects to the admission of this testimony, arguing it was irrelevant and prejudicial because oneof the other passengers confessed the crack cocaine-7- belonged to him and none of th e individuals involved in the incident are named in the instant conspiracy.

We review for an abuse of discretion a district court’s admission of evidence of prior bad acts under Federal Rule of Evidence 404(b). United States v. Katz , 445 F.3d 1023, 1029 (8th Cir. 2006). “Evidence of other crimes, wrongs, or acts” may be admissible for the purpose of proving “motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident.” Fed. R. Evid. 404(b). A district court has “broad discretion in admitting such evidence and will be reversed only if such evidence clearly had no beari ng on the case and was introduced solely to prove the defendant’s propensi ty to commit criminal acts.” Katz , 445 F.3d at 1029 (citations and internal quotations omitted). Evidence is admissible if it is (1) relevant to a material issue; (2) similar in kind and close in time to the crime charged; (3) supported by sufficient evidence to support a finding by a jury that the defendant committed the other act; and (4) if the potential prejudice does not substantially outweigh the probative va lue of the evidence. United States v. Kern , 12 F.3d 122, 124- 25 (8th Cir. 1993).

In this case, the challenged testimony linked Davis with crack cocaine on February 12, 2001, within the time period of the charged conspiracy. It is undeniable that evidence of crack cocaine linked to a defendant during the time period of an alleged conspiracy to distribute crack co caine is relevant as to the defendant’s knowledge and intent. Moreover, the district court notedthe evidence was relevant in light of Davis’ defense that Offi cer Gassaway was pursuing a personal vendetta against him. The district court did not abuse its discretion when it admitted Officer Gassaway’s testimony into evidence.

IV. E XCLUSION OF E XPERT T ESTIMONY Davis next argues the district court interfe red with his right to present a defense by refusing to admit the expe rt testimony of the Federal Public Defender regarding5 Davis also argues he was not allowe d to sufficiently cross examine the government’s witnesses on the particulars of the sentencing guidelines table and statutory minimum sentences. We reject th is argument for the same reasons discussed above and conclude the district court did not abuse its discretion in deciding to limit cross examination. See United States v. Wipf , 397 F.3d 677, 683 (8th Cir. 2005) (standard of review).
-8- substantial assistance and the mechanics of the federal sentencing process. Davis intended to use this testimony to imp each the credibility of the government’s cooperating witnesses, calling into question their motivation for testifying against Davis, and thereby raising doubt as to the reliability of their te stimony. We conclude the district court did not abuse its discre tion by refusing to admit the expert testimony. United States v. Anderson , 446 F.3d 870, 874 (8th Cir. 2006) (standard of review).

Each cooperating witness te stified he was facing a lengthy prison sentence and hoped to reduce his sentence by testifying agai nst Davis. Each witness testified the government would have to file a motion aski ng the court to reduce his sentence. The jury did not need expert testimony explaini ng the details of sentencing procedures to understand that the government’s witnesses might have an incentive to incriminate Davis. “Expert testimony is appropriate wh en it relates to issues that are beyond the ken of people of ordinary intelligence. ‘Where the subject matter is within the knowledge or experience of laymen, expert testimony is superfluous.’” United States v. French , 12 F.3d 114, 116 (8th Cir. 1993) (quoting Bartak v. Bell-Galyardt & Wells, Inc. , 629 F.2d 523, 530 (8th Cir. 1980 )). In addition, the district court gave the jury an instruction fully explaining substantial assistance and the jurors’ ability to weigh the credibility of a cooperating witness. This instruction, coupled with defense counsel’s own arguments, “sufficiently communicated to the jury the information it needed to assess the incentives government w itnesses had to stretc h or shade the truth in order to obtain sentence reductions.” Id. at 117 (internal quotations omitted). 5-9- V. A DMISSION OF H EARSAY T ESTIMONY Victor Henderson testified that ParishSwift bought cocaine for him from Billy Davis. Henderson claimed that while he never observed the transactions, Swift told him he purchased the cocaine from Davis. Swift testified and denied ever having bought cocaine from Davis for Henderson. Da vis argues the district court erred when it admitted Henderson’s hearsay testimony b ecause Swift was not a member of the charged conspiracy. We review the districtcourt’s evidentiary rulings for an abuse of discretion, “keeping in mind that its disc retion is particularly broad in a conspiracy trial.” United States v. Jordan , 260 F.3d 930, 932 (8th Cir. 2001) (internal citations and quotations omitted).

An out-of-court statement is not hearsay if it is offered against the defendant and is a statement of the defendant’s co conspirator made duri ng the course and in furtherance of the conspiracy. Fed. R. Evid. 801(d)(2)(E); United States v. Manfre , 368 F.3d 832, 837 (8th Cir. 2004) . While we interpret th e phrase “in furtherance of the conspiracy” broadly, “a statement th at simply informs the listener of the declarant’s criminal activities is not madein furtherance of the conspiracy.” United States v. McKay , 431 F.3d 1085, 1093 (8th Cir. 2005) (citation and internal quotations omitted).

Despite Davis’ objections, it is not necessary for Swift to be formally charged, or even named, in the cons piracy, “so long as the statement in question was itself sufficiently reliable in demonstrating the applicability of Rule 801(d)(2)(E).” United States v. Mahasin , 362 F.3d 1071, 1084 (8th Cir. 2004). After provisionally allowing Henderson’s testimony under United States v. Bell , 573 F.2d 1040 (8th Cir. 1978), the district court later concl uded it “believe[d] that ther e is enough evidence that was introduced by the government of a conspiracy to link the statements of the declarant into the conspiracy.” Swift’s statements to Henderson identified Davis as a source of crack cocaine. Coconspirators’ statements that discuss the supply source for the-10- illegal drugs or identify a coconspirator’s role in the conspiracy are considered statements made “in furtherance” of the conspiracy. United States v. Arias , 252 F.3d 973, 977 (8th Cir. 2001); see also Jordan , 260 F.3d at 933 (“A statement informing a coconspirator of the methods of obtaining [drugs] is admissible because it is designed to help ensure continued involvement .”). Therefore, we conclude the district court did not abuse its discretion in admitting this testimony.

VI. S ENTENCING Finally, Davis raises seve ral objections to the sentence imposed by the district court. First, Davis argues the district court violated his Sixth Amendment rights by holding him accountable for a quantity of crack cocaine found by a preponderance of the evidence, rather than submitting this i ssue to the jury to find beyond a reasonable doubt. This argument is without merit. It is well established in this circuit that “judicial findings of drug quantity for sentencing purposes do not violate the Sixth Amendment when made under an advisory Guidelines regime.” United States v. Tabor , 439 F.3d 826, 830 (8th Cir. 2006). While the district court could have given the jury a special verdict form to dete rmine the drug quantity for which Davis was responsible, the court was not in error for failing to do so. See United States v. Haack , 403 F.3d 997, 1003 (8th Cir. 2005) (“[W]ith the mandatory use of the Guidelines excised, the traditional authority of a sent encing judge to find a ll facts relevant to sentencing will encounter no Sixth Amendm ent objection.”) (quotation and citation omitted).

Second, Davis argues the thirty-year se ntence imposed by the district court is unreasonable because it is excessively greate r than necessary to punish Davis. To support this argument, Davis contends it was unreasonable for the district court to rely upon the presentence investigation report to determine drug quantity. Davis also contends the district court erred in re lying upon the sentencing guidelines for crack-11- cocaine because they result in disproportionate sentences for crack and powder cocaine offenders.

A sentencing court must first determine the advisory guidelines range and then consider the factors set forth in 18 U.S.C . § 3553(a) to determine whether to impose a sentence under the guidelines. Haack , 403 F.3d at 1003. We review the district court’s application of the sentencing guide lines de novo, its factual findings for clear error, and the ultimate sentence for reas onableness in accordance with the factors listed in § 3553(a). United States v. Davidson , 437 F.3d 737, 739-40 (8th Cir. 2006).

The district court adopted the presente nce investigation report’s calculation of drug quantity, denying Davis’ objections “[g] iven the evidence presented at trial.” The district court was present throughout the trial to hear the evidence and weigh the credibility of the witnesses. Davis has pr esented us with no reason to question the district court’s determination, other thanhis own disagreement with the truthfulness of the government’s witnesses. In light of the district court’s “comparative advantage at evaluating credibility,” United States v. Lincoln , 413 F.3d 716, 717 (8th Cir. 2005), we conclude the district court did not clearly err in adopting the presentence investigation report’s calculation of drug quantity.

The district court determined the o ffense level was 38 and Davis’ criminal history category was VI, resulting in an a dvisory guidelines range of 360 months to life in prison. After stating it consideredthe § 3553(a) factors, the district court determined a sentence of 360 months’ imprisonment was reasonable. A sentence within the guidelines range is presumptively reasonable. Id. A sentence may be unreasonable if “the district court failed to consider a relevant factor that should have received significant weight, gave significan t weight to an improper or irrelevant factor, or otherwise committed a clear error of judgment.” Davidson , 437 F.3d at 741 (citing Haack , 403 F.3d at 1004).-12- Davis contends the district court unreasonably relied upon the 100-to-1 drug quantity ratio between crack and powder cocaine in the sentencing guidelines because it results in irrational and unfair senten cing disparity. Our court has previously addressed and reject ed this argument. United States v. Cawthorn , 429 F.3d 793, 803 (8th Cir. 2005) (holding that “sentencing within the Guidelines based on the crackpowder disparity is not inherently unreasonable”).

Finally, Davis appears to make an unde fined argument that the district court summarily sentenced him within the guide lines range without giving proper weight to the § 3553(a) factors. While the districtcourt did not make explicit findings as to each factor, the record reflects the district court acknowledged it could sentence anywhere within the statutory limitations af ter considering the advisory guidelines and the § 3553(a) factors. The district court listed all the factors it was considering to arrive at a reasonable sentence and acknow ledged its obligation to do so. From the record before us, “we are satisfied that the district court actually considered each factor in determining an appropriate sentence.” United States v. Cadenas , 445 F.3d 1091, 1095 (8th Cir. 2006).

VII. C ONCLUSION For the above stated reasons, we affirm the district court.

BYE, Circuit Judge, dissenting in part and concurring in the result.

Although I agree with the result in this case, I write separately to express my disagreement with the Court’s analysis of the denial of the motion to suppress in Section II.-13- The law enforcement officers did not haveprobable cause to arrest Davis for a narcotics violation at the time he was placed in handcu ffs because the officers had not yet uncovered the crack cocaine concealed in Davis’s buttocks at that time. As a consequence, the subsequent search which disclosed the drugs cannot be justified on the grounds it was a search inci dent to a lawful arrest. The fruits of a search cannot be used as the basis for an arrest, which in turn is used to justif y a search incident to arrest. See Smith v. Ohio , 494 U.S. 541, 543 (1990) (“[J]ustifying the arrest by the search and at the same time the search by the arrest just will not do.”) (internal citations and quotations omitted); see also Rawlings v. Kentucky , 448 U.S. 98, 111 n.6 (1980) (indicating the fruits of a search must not be the basis for the probable cause for a simultaneous arrest). The Court’s analysis simply cannot be reconciled with the Supreme Court’s Fourth Amendment jurisprudence.

Furthermore, the Court’s analysis bl urs the important distinction between probable cause to arrest and probable cause to search . See generally W. LaFave, Search and Seizure: A Treatise on the Fourth Amendment§ 3.1(b) (4th ed. 2004) (discussing the distinction). A warrantless search (outside the context of a search incident to a lawful arrest) ge nerally requires both probable cause and exigent circumstances. Kleinholz v. United States , 339 F.3d 674, 676 (8th Cir. 2003). By implicitly equating probable cause to arrest with probable cause to search, the Court essentially eviscerates the exigent circumstances requirement for a warrantless search. Under the Court’s analysis, law enforcemen t officers will have no incentive to obtain a warrant for a search – even when ther e are no exigent circumstances – they will simply place a suspect under arrest and then conduct a search incident to arrest.

Although I do not agree with the Court’s analysis of the denial of the motion to suppress, I nonetheless concur in the re sult because I believe the warrantless seizure of the crack cocaine found in Davis’s buttocks was permissible under the “plain-14- touch” or “plain feel” doctrine, which is simply an extension of the “plain view” doctrine to a pat-down search:

If a police officer lawfully pats down a suspect’s outer clothing and feels an object whose contour or mass makes its identity immediately apparent, there has been no invasion of the suspect’s privacy beyond that already authorized by the officer’s search for weapons; if the object is contraband, its warran tless seizure would be justified by the same practical considerations that i nhere in the plain-view context.

United States v. Bustos-Torres , 396 F.3d 935, 944 (8th Cir. 2005) (quoting Minnesota v. Dickerson , 508 U.S. 366, 375-76 (1993)). I believe the contour, mass, and location of the rock-like object Officer Rieck felt when he conducted the pat-down search on Davis, coupled with his past experience and knowledge of people hiding drugs in the their buttocks, as well as the suspicious be havior he observed when Davis was in the back seat of the vehicle, together were enough to make the contraband’s incriminating character immediately apparent to Officer Rieck and to ju stify its warrantless seizure during the pat-down search. If Officer Rieck was justified in immediately seizing the contraband during the pat-down search, I see no reason why he was not also justified in seizing it during the subsequent sear ch which occurred at the police assembly building.

I therefore concur in the result in this case.

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