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# United States Court of Appeals For the Seventh Circuit

No. 13-1927

U NI T E D S TAT E SOF A M E RI C A , Plaintiff-Appellee,

v.

T OMM Y W E B S T E R

, Defen dant-Appellant.
Appe al f ro m the Uni ted S tates Distri ct Co urt fo r the Nor thern Distri ct o f Indi ana, S outh Be nd Di v i sio n. No. 3: 11 -cr- 00 06 7- RLM-1 — Robert L. Mill er, Jr. , Judg e.
A RGU E D S E PT E MB E R 9, 2014

— D E C I D E D J ANU AR Y 5, 2015

Before F L AUM

, R OVN E R , and H AMI L T O N

, Circ uit Judges.

R OVN E R , Cir cui t Judge. O n May 9, 2012, T ommy Lee W ebster , Jr

. w as charged in a superseding indi ctment wi th fi v e counts, inclu ding: possess i on wi th intent to di strib ute cocaine in violati on of 21 U.S .C. § 841(a)( 1); posses si on of a fi rear m in furtherance o f a drug tr affi cking offense, in violati on of 18 U.S

. C

. § 9 24(c) ; manuf acture of mari juana, in violati on of 21 U.S.C. § 841(a)( 1); possess i on wi th intent to deliv er cocaine2 No. 13-1927 base, in violati on of 21 U.S .C. § 841(A)(1) ; and posses si on of a fi rear m as a convic ted felon, in vio l a t io n of 18 U.S.C. § 922(g)(1). A jury convic te d him on all counts, and he w as sentenced to 168 months’ i mpr iso nment follow ed by three y ears of supervis ed release. W ebster now appeals that convic

tion. W ebster’s arr est o cc ur red on Mar ch 11, 2011, when polic e offi cers w ent to a resi dence at 816 Almond Court in S outh Bend, Indi ana, in response to an anonymous tip. As tw o offic e r s proceeded to the front door , a thi rd offi cer heard a door close and w ent to the y ard on the si de of the house where he encountered W

e bs ter

. W

ebster had $2,296 in cash on hi s person at the tim e, and the offi cers sme l led a stro ng odor of mari juana coming from the house and on W ebster’s clothing. W ebster produced a driv er’s li cens e that indi cated he resi ded at 816 Almond Court

. T w o indi vidu als exited the house and began running from the resi dence

. O ne fled back insi de the house and ulti mately escaped thro ugh a second- floor window , but the other

, Fr ederic k Jones, w as apprehended. Th e offi cers placed Jones and W

ebster in the caged back seat of a squad car whi le t he y sought a search w arr ant for the resi dence. An offi cer , Cor poral Hammer

, w as in the patro l car wi th them for approx i mately 2-1/2 ho urs befor e and during t he se arch, and at some poin t he employ ed the internal video camera in the car to recor d all conv ersations in the v ehi cle. He w as absent from the car fo r a p prox i mately 8 minutes, and during that tim e W ebster engaged in conv ersation wi th Jones and placed
sev era l p hone calls whi ch are audi ble in the recor ding. The gover nment sub sequently mov ed to enter that 8-minute excerpt into evi dence, as well as a tr ansc ript of that recordingNo. 13-1927 3
prepar ed by C or poral Hammer , Offi cer Kr onewi tte r, and a thi rd offi cer
. Defens e co un se l offered no objection, and the di stric t court allow ed the evidenc e. Before playi ng the tape, the court informed the jury that the recor ding w a s evidenc e but the tr a nscript w as not evidenc e and that i t merely reflected what a few people b eli ev e i s on the tape. The jury w as further instructed that in the case of a confli ct, they should “go wi th what y ou hear

, rat her than what y ou see.” Th e search of the resi dence rev ealed a mari juana gr ow oper ation, inclu ding 50 ro ote d p l a nt s, 38 cuttings, hi ghpressure sodium gr ow li ght s o n tim ers, chemi cals, and a computer that di splay ed the video from surv ei llance cameras. In addi tion, the offi cers found mari juana in the pocket of a coat in the fi rst floor closet, and plasti c baggies and electro ni c scal es in the kitch en. Of the three upstai rs bedr o o ms, only one contai ned a be d

. In that bedroo m, the offi cers found a bag contai ning sev eral small er plasti c bags of mari juana next to the bed, loose mari

juana and another container of mari juana near the bed, and, in the pocket o f a co at hanging in the closet, a plasti c bag contai ning sev eral small er bags fi lled wi th whi te and br own po wder sub stances

. A loaded shotgun w a s found in that bedroo m and an unloa d ed shotgun w as found in the closet. W ebster challen ges hi s convic tions o n the drug and fi rear ms charges on three gr ounds. He asserts that the di stric t court err ed in allowing the admi ssi on into evidenc e of forensi c laborat or y re p o r t s as well as a recor ding of the conv ersation inv olving W

e bster in the squad car
. In addi tion, he contends that the evidenc e w as insu ffi ci ent to supp or t the convict i ons. W e address these arguments in turn.4 No. 13-1927
W e begi n wi th the challen ge to the admi ssi on of the forensi c laborat or y repo rt s. The sus pected drug evidenc e w as sent to the Indi ana St ate P olic e laborat or y and Kr i sten St urgeo n, a forensi c sci entis t, prepar ed tw o laborat or y repo rt s ide nt i fying the drugs. Although St urgeo n w as di scl osed as a potent i al governme nt exper t wi tness prior to tr i al, she w as
nev er called to testif

y during the tr i al. Inst e a d , t he tw o lab repo rt s w ere admi tte d into evidenc e during the te st i mony of Indi ana St ate P olice T

r ooper Brian Hoffman and So uth Bend P olic e Ser geant M i chael Stev en Suth. The fi rst repo rt w as admi tte d int o e v i dence during the testim ony of T

ro oper Hoffman

. He relat ed hi s observ ations of th e mari juana gr ow oper ation at the resi dence in detail and testifi ed that he tr ansported the p l ants back to hi s offi ce and dried them p r io r t o sending them to the laborat or y
. The government t hen sought to admi t St urgeo n’s r epor t atte sting that the evidenc e contai ned 816 gr ams o f mari juana. In response to the request to admi t the repo rt into e v i dence, W ebster’s couns el stated “I thi nk I agr eed to thi s, di dn’t I? No objection.” Later in the tr i al, Ser geant Suth testifi ed as to the lab results for the powdered substance found in the resi dence. S uth w as
an evidenc e techni ci an in the Met ro Speci al Oper ations Section of the S outh Bend Polic e Department, and at t he resi dence he

w as responsible for secu ring the evidenc e and sub sequently

w ei ghi ng, fi eld testing, and processing i t. He testifi ed that the evidenc e w as then take n to the Indi ana S t a t e P olic e Lab and
e x a mined by St urgeo n, and he i denti fi ed the lab rep o r t contai ning the results of the testing. The government then
mov ed to hav e the repo rt admi tte d into evidenc e, and defenseNo. 13-1927 5

couns el stated “[n]o objection.” The court held that the exhib i t
w as admi tte d wi thout objection. Suth proceeded to testif y as to the findings in St urgeo n’s lab repo rt i denti fying the whi te and brown powder subs tances as cocaine and cocaine base. W ebster now contends that the admi ssi on of St urg e o n’ s laborat or y repo rt s wi thout her testim ony or a sti pulati on as to the admi ssi

bi li ty violated the Sixth Amendment Confro ntation C l a us e of the Constituti on. The government concedes tha t St urgeo n’s lab repo rt s w ere not proper ly admi tte d, but arg ues that t he err or does not r equi re r ev ersal. As the go v e rnm e n t a c kn ow ledges, w e hav e repeat edly held that “the government may not intro duce forensi c l a bo rat or y repo rt s or affi davits repo rt ing the results of forensi c tests and
use them a s su bstant i v e evidenc e again st a defendant unles s the analyst who prepar ed or certifi ed the repo rt i s offered as a li v e wi tness subject to cross-examinati on.” United States v
. Maxw ell , 724 F .3d 7 2 4, 726 (7th Ci r
. 2013); Bullc oming v
. New Mexico , ___ U.S. ___, 131 S. Ct. 2705, 2710 (2011); United States v
. Moo n, 512 F .3d 359, 360-62 (7th Ci r
. 2008). In fai ling to call St urgeo n in the tr i al, the government ran afoul of that proscription. In gener al, when a defendant fai ls to object to the admi ssi on of evidenc e at tr i al, w e rev i ew only for plain err or
. In thi s case, i t appears that the deci si on not to object w as intentional. When the government fi rst mov ed to admit the lab repo rt s into evidenc e, defense cou n s e l stated that he thought he had agr eed to i t and that he had no objection. He reiterat ed that he had no objection when the government mov ed to admi t the remain ing lab repo rt

. That affirmat i v e deci si on to foreg o an objection6 No. 13-1927

w ould normally be consi dered a w ai v er rather than a for fe i

ture. See United States v
. Locke, 759 F .3d 760, 763 (7th Ci r
. 2014) (“a defe nd ant who affi rmativ ely states ‘I do not object’ or ‘I wi thdraw my obj ecti on’ has not forfei ted the right, but rather intentionally relinqu i shed or w ai v ed the ri ght and cannot ask for rev i ew

.”) “‘[W]ai v er occurs when a defendant intentionally relinqu i shes or abandons a known right, whereas forfeiture
o cc ur s when a defendant si mply fai ls to tim ely assert hi s rights.’ ” U n i ted States v
. Pappa s , 409 F .3d 828, 829 (7th Ci r
. 2005), quoting United S ta tes v
. Harris , 230 F .3d 1054, 1058 (7th Ci r
. 2000). A forfeiture gener ally reflects an ov ersi ght, whereas

a w a iver encompas ses a deli berate deci si on not to present a gr ound for relief. Id. In contrast to forfeited i ssu e s that w e
rev i ew for plain err or

, w e do not rev i ew i ssu es that are w ai v ed at all becau se a v ali d w ai v er leav es no err or to co r r ect on appeal. Id. at 830. Although the deci si on not to object appears to be an intentional deci si on whi ch w ou l d co nsti tute a w ai v er , the government di d not arg ue that w e should construe i t as a
w ai v er
. Instead, the government asserted that w e should
rev i ew the admi ssi on of the evidenc e for plain err or
. In arg uing that we should rev i ew for plain err or , the government has

w ai v ed the arg ument that the o bjection s hould be c onsi dered to hav e been w ai v ed. United States v
. Murphy, 406 F .3d 857, 860 (7th Ci r
. 2005)(gov ernment “w ai v ed w ai v er” by asserti ng that

w e should appl y the plain error standard of rev i ew). Acc or dingly , w e wi ll rev i ew the challen ge under t he plain err or standard.No. 13-1927 7
Under that standard, w e wi ll r ev erse only i f there i s err or that i s plain, that affec ts the defendant’s sub stanti al rights, and that seri ously affec ts the fai rness, integr i ty or publi c reputat i on of judi ci al proceedings, resu l t ing in a mi scarri age of justic e. United States v
. Iacona, 72 8 F .3d 694, 699 (7th Ci r
. 2013). An
err or affec ts sub stanti al rights i f i t i s prej udi ci al, “that i s, when i t has affected the outcome of the di stric t court proceedings.” United S tat es v. McLaughlin , 760 F .3d 699, 706 (7th Ci r . 2014). The government contends, corr ectly , that the err or here could no t hav e affec ted W ebster’s sub stanti al rights, becau se W ebster nev er contested that the sub stances w ere in fact drugs. W ebster conceded in openi ng statements, an d re fe re n ced again in closing arg uments, that there w ere drugs found in the home. Rather than w age a doom e d ba t t le as to the nature of the sub stances in the home, defense couns el focuse d on the arg ument that W

ebster w as not connected t o those drugs or the resi dence and that other persons were responsible for the drug o perat i on. The deci si on by defense couns el has a strat egic benefit

. “Hearsay usu ally i s w ea k er than li v e testim ony , and defendants may prefer the hearsay v ersi on rat he r than making an objection that w ould compe l the prosecuti on to produce a stro nger witness .” Moo n , 512 F .3d at 361. Where t he nature of the sub stance cannot realis tic ally be challen ged, defense
couns el may w ell choose to focus the d efense on the most vulnerable areas of the government’s case. Gi v en the ext ensi v e gr ow oper ation found in the ho me , i t certainly w ould hav e been reasonable for defense couns el to conclu de that i t w ould be futi le to focus an attack o n t he na ture of the sub stances found there.8 No. 13-1927
In Maxw ell , 724 F .3d at 724-28, w e addressed an analogo us si tuation. M axw ell w as pr osecuted fo r possess i on wi th i ntent to di strib ute crack cocaine. Id. at 725. Hi s str ateg y at tr i al w as to cont est whether he had the intent t o dis tr ibute, rather than to challen ge the nature of the sub stance inv olv ed. Id. at 727-28. W e held that as there w as no questi on at trial as to the type of drugs being di strib uted, the admi ssi on of the laborat or y repo rt evidenc e could not consti tute plainerr or
. Id. at 728. The same outcome i s mandated here. There could be no harm to W ebster in thi s case, becau se the fai lure to present the testim ony of the analyst who prepar ed the repo rt had no i mpact on hi s defense, which d id no t challen ge the exis tence of the drugs but contested only hi s connecti on to them. Nothing in th e repo rt addressed hi s connec tion to the dr ugs. Only the natur e of the sub stances w as presented in the testim ony reg ardin g the lab repo rt, and that w as not a contested i ssu e at tr i al. Accordi ngly , the err or in the admi ssi on of the forensi c repo rt evidenc e does not r equi re r ev ersal. W ebster next contends that the di stric t court err ed in allowing the consi derat i on of t he t aped and tr ansc rib ed
conv ersation that occurred in the squad car
. He asserts that the
reco rd in g of th a t c onv ersation violated hi s Four th Amendment right to be free from unreasonable searches and sei zures. He notes that electro ni c surv ei llance can consti tute a search wi thi n the purview of the Four th Amendment, and maintai ns that the
surv ei llance in thi s cas e consti tuted an unreasonable search. In or der t o suc ceed o n thi s clai m, W ebster has to establi sh that he had a reasonable expectat i on of pri v acy in the c onv er sati on that too k plac e in the caged port i on of the s quad car
. A reasonable expectat i on of priv acy exis t s when the defendantNo. 13-1927 9
mani fested a subjectiv e expectat i on of pr iv a cy and soci ety
r ecognizes that expectat i on to be reasonable. United States v
. W alto n , 763 F .3d 655, 658 (7th Ci r
. 2014). Therefore , i t contains both a subjectiv e and objectiv e co mponent. W e assu me for purposes of the anal y sis here that W ebster in fact mani fested

a subjectiv e expectat io n o f priv acy , whi ch w as evidenc ed by hi s si lencing of the conv ersation when the o ff i cer w as in the patro l car

, as w ould be expected from someone seeki ng to keep

a conv ers a t io n p riv ate. Id. (the subjectiv e prong look s to the indi vidu al’s affi rmativ e steps to conceal and keep priv ate that whi ch w as the sub

ject o f the search). Instead, the insu rmounta bl e o bstacle to hi s clai m i s in the objectiv e port i on of the test—whether the expectat i on is one that soci ety accepts as reasonable. Although our ci rcui t has not y et address ed thi s questi on, si x c i rcui ts hav e done s o ov er the last tw o decades an d all hav e held that ther e i s no objectiv ely reasonable expectat i on of priv acy in a conv ersation that occurs in a squad car . See United S tat es v
. Dun bar , 553 F .3d 48, 57 (1st Ci r
. 2009); United States v

. T urn er, 209 F .3d 1198, 1 2 0 0 -01 (10th Ci r
. 2000); United States v
. Clark , 22 F .3d 799, 801-02 (8t h Ci r
. 1994); United States v
. McKinn on , 985 F .2d 525, 527-28 (11th Ci r
. 1993); United States v
. Fridi e, 442 Fed. Appx. 839, 841 (4th Ci r
. 2011)(u npub li shed) ; United States v
. Carter , 117 F .3d 1418 (5t h C ir

. 1 997)(u npub li shed)

. The reasonin g of those courts are instructi v e. The T

en t h Ci rcui t in T

urn er based i ts holding on t he di stinct nature of a squad car , whi ch i s a place bri st l ing wi th electro ni cs in whi ch the practic al realiti es of the si tuation should be apparent to occupan ts. 209 F .3d at 1201. It noted that in addi tion to the mi crophones to a di spatcher , i t i s increasingly common for squ a d car s to possess video recor ding10 No. 13-1927
devic es (and in fact one such devic e w as used to recor d the
conv ersation in thi s case,) and other electro ni c and recor ding devic es. Id. Mor eov er

, as a numb er of ci rcui ts hav e recog ni zed, the squad car i s in essenc e the mobi le offi ce of the patro l offi cer , and the back seat i s often used as a tempor a r y j a il for housing and tr ansporting arr estees and sus pects. Clark , 22 F .3d at 801-02; McKinn on , 985 F .2d at 527. Gi v en t he na t ur e of the vehi cle and the vis ible presence of electro ni cs capabl e o f tr ansm i tting any internal conv ersations, the expectat i on that a conv ersation wi thi n the v ehi cle i s priv ate i s not an expectat i on that soci ety w ould recog ni ze to be r easonable. W e agr ee wi th those ci rcui ts, and hold that conv ersations in a squad car such
as the one in thi s case are not entitled to a reasonable expectation of priv acy

, and there fore the recor ding of the conv ersation i s not a violation of the Fourt h Amendment. W e note that thi s holding reflects the lay out and equi pment of the squad car

, and expr ess no opin i on as to conver sa tions t hat occur in other v ehi cles. For instance, W ebster rel ie d large ly on a di stric t court opin i on in United States v
. W illiams , 15 F

. Supp. 3d 821 (N.D. Ill. 2014), in whi ch the court held that there i s a reasonable e x p e ct ation of priv acy in conv ersations that take place in a squadrol or p atr ol w agon. That deci si on, how ev er , i s inapposit e. The W

illiams court emphas i zed in i ts deci si on that t he squad ro l had three compartments inclu ding tw o separate rear compartments for pris on e r s that w ere physi cally separated fr om the front port i on of the v ehi cle in whi ch the offi cers r ode. Id. at 825. The pris oner compartment
w as separated from the front part by a w all and windows wi th thi ck plexiglas s thro ugh whi ch offi cers could see but not hear t he pris oners, and there w ere no electro ni cs vis ible. Id. InNo. 13-1927 11
finding an objectiv ely reasonable expectat i on of priv acy , the court di stingui shed the squadrol from th e patro l car wi th i ts electro ni cs and vis i

bi li ty to the publi c. Id. at 828-30. Therefore , that case i s not helpfu l to W ebste r
. B e ca use there w as no expectat i on of priv acy in the squad car , the recor dings di d not violate W

ebster’s F o urth Amendment rights. W ebster arg ues in hi s reply bri ef that the tr ansc ript of the r e co r d ing should hav e been excluded becau se the government fai led to prov i de

an adequate foundati on for i t, but that arg ument w as not rais ed in the openi ng bri ef and there fore i s w ai v ed. See United States v. Dabney, 498 F .3d 455, 460 (7th Ci r . 2007). The final ch a llenge presented by W ebster i s one to the suffi ci ency of the evidenc e. W ebster asserts t ha t the government di d not produce suffi ci ent evidenc e to supp o rt the possess i on charges becau se there w as no evidenc e that he w as in a ct ual physi cal possess i on of the drugs or guns, and t he government fai l e d to d e m on s tr a te th a t h e had exclusi v e contro l of the premi ses suffi ci ent to supp or t a finding of constructi v e possess i on. He also asserts that there w as insu ffi ci ent evidenc e to connect the guns to the drugs, and there fore to supp or t the convic tion for possess i on i n furtherance of drug t raffi cking. Or dinaril y

, we rev i ew a challen ge to the suffi ci ency of t he evidenc e to deter mine only whethe r a ny rat i onal tr i er of fact could hav e found the essenti al elements of the cri me bey ond a reasonable doubt, view ing the evidenc e in the li ght most fav or able t o the government. United States v
. Cejas , 761 F .3d 717, 726 (7th Ci r
. 2014). In thi s case, how ev er , W ebster fai led to file a motion for acqui ttal under Feder al Rule of Crimi na l Procedure 29 at the close o f ev i dence o r wi th in se ven days of the v erdic t. Acc or dingly , w e wi ll rev i ew under the plain err or12 No. 13-1927 standard, and wi ll rev erse o nl y if there i s err or that i s plain, affec ts the defendant’s sub stanti al rights, and seri ously affec ts the fai rness, integr i ty or publi c reputat i on of judi ci al proceedings, effectuating a mi scarri age of justic e. Iacona, 728 F .3d at 699; United States v
. V

an Allen , 524 F .3d 814, 819 (7th Ci r
. 2008). Th e g o v ernment in thi s case relied on the theor y of co nstructi v e possess i on in whi ch an indi vidu al i s deemed to “possess ” contraband i tems wi thout a showing of i mmedi ate, physi cal contro l of the objects. United States v
. Schm itt, 770 F .3d 524, 534 (7th Ci r
. 2014). “Constructive p o ssessi on may be
e st a bli shed by demonstrating that the defendant knowi ngly had both the pow er and the intention to exer ci se domini on and contro l ov er the object, ei ther di rectly or thro ugh oth e r s. ” United States v
. Griffin , 684 F .3d 691, 6 9 5 (7 th Ci r
. 2012). In
or der to suc ceed unde r t ha t theor y , the government mus t demonstrate a nexus betw een the defendant and t he contraband s o as to di stingui sh hi m from a mere b ystander

. Id. That may be establi shed by demonstrating that the defendant had exclusi v e contro l ov er the proper ty where the contraband w as di scov ered, wh i ch allows the jury to infer the kno wledge and intent to contro l objects wi thi n those premi ses. Id. In other
cases, i t may be establi shed by e videnc e supp or tin g the conclu si on that th e d e fe ndant had the abi li ty to exer ci se knowi ng domini on and contro l o ver the i tems in questi on
. United State s v
. B rown , 724 F .3d 801, 804 (7th Ci r
. 2013). Mer e prox i mi ty to the contraband i s not enough. Id. ; United States v
. Reed, 744 F

. 3 d 519, 526 (7th Ci r
. 2014). “Prox i mi ty mus t be coupled wi th o t her evidenc e, inclu ding connecti on wi th an i mpermi ssi

ble i tem, proo f of motiv e, a g e st ure i mplying
c ontr ol, e v a s iv e c on duct, or a statement indi cating inv olv e m e n tNo. 13-1927 13
in an enter pris e in or der to s ustain a gui lty v erdic t.” Reed, 744 F .3d at 526. W ebster’s arg ument as to the suffi ci ency of the evidenc e i s large ly tied to hi s arg ument that the conv ersation in the squad
ca r w as i mproper ly admi tte d, and although hi s arg ument
w ould li kely fai l wi thout t ha t evidenc e, i t assu redly fai ls in li ght of our deter minati on that the conv ersation w as proper ly presented to the jury

. First, sub stanti al evidenc e tied W ebster to the resi dence i tself, inclu ding that he w as the resid e nce’s mort gage e , his driver’s li cens e li sted that resi dence as hi s address, and he had a land co nt r a ct wi th John Rees, the mort gago r

, who testifi ed that W ebster w as li ving at the resi dence at the tim e of the sear ch. In addi tion, the nei ghbor testifi ed that the only person he ev er knew to li v e t he re w as W ebster

. The i tems in the home further tied W ebster to t he resi dence. The major i ty of the mai l in the resi dence w as addressed to W

ebster

. Furt hermor e, in the be droo m that contai ned the drugs and g un s, there w as mai l addressed to W ebster but no mai l in the name of any one other than W ebster , and in W

ebster’s name the offi cers found a r e ce i pt dated January 14, 2011, and a ba nk st atement dated Februar y 28, 2 0 1 1

. Th e lone coat in the closet w as si zed ext ra large , whi ch

w as consi stent wi th W ebste r ’ s siz e and not the si ze of the persons found in and near the resi dence at t he t i me of the search. In addi tion to that evidenc e tying W ebste r t o the resi dence and the bedroo m, W ebster’s statements in the patro l
car establi sh a connecti on to the drugs in the resi dence. As set for t h in the government bri ef wi thout contradic tion by W ebster , in the recor ding W

ebster stated that the p olic e w ere searching insi de hi s house, that they w ere insi de “tr yin g to14 No. 13-1927
search for shi t,” that “[i ]t w as just ab out to b e too ken out next month when I mov ed—I got leases wrot e up and ev ery thing,” and that the poli ce w e r e “tr yin g to kill my mother fuc kin g
career .” In addi tion, he indica t e d t hat he had tr i ed to conceal hi s connecti on to the resi dence, statin g that “I came out from the back and sai d I w as w or kin g on the v an. No they ain’t seen
me coming from the house. Shit they just seen me on the porch, shi t just tr yin g to knock o n the door as far as I’m conc erned.” A jury could interpr et those statements as an acknowledgment that the resi d ence w as W ebster’s, and that he w as oper atin g a drug bus iness from that resi dence that he w as atte mpting to conceal from the poli ce. That connecti on to the drug bus iness prov i des a motive for the possess i on of the guns, whi ch along wi th the evidenc e that the bedroo m w as W ebster’s and the prox i mi ty of the gun to th e drugs, i s suffi ci ent to di stingui sh hi m from an innocent bystander and establi sh the

nexus required for constructi v e p o ssessi on. See Schm itt, 770 F .3d at 534 (testi mony that the defendant w as a drug dealer and that drugs w ere found in hi s home w as relev ant to prov i de

a motiv e for the presence of a fi rear m for establi shing constructiv e possess i on). Mor eov er , the prox i mi ty o f t he fi rear ms to drugs in the bedroo m, particu larly where as he r e the home also contai ned an ext ensi v e gr ow oper ation inclu ding a video
surv ei llance system, prov i des an adequate basi s for the jury to conclu de that the g uns w ere possess ed in furtherance of the drug offense. There i s no basi s to conclu de that ther e w as a mi scarri age o f justi ce und er t he plain err or standard. Accordi ngly

, the decisi on of the di stric t court i s AFF IRM ED.