*

 The Honorable Clarence A. Brimmer, District Judge, United States

District Court for the District of Wyoming, sitting by designation.

FILED

United States Court of Appeals

Tenth Circuit

September 3, 2008

Elisabeth A. Shumaker

Clerk of Court

PUBLISH

UNITED STATES COURT OF APPEALS

FOR THE TENTH CIRCUIT

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v. No. 07-6169

RONNIE KASHAWN DODDLES,

a.k.a. Phatt Man,

Defendant-Appellant.

 

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE WESTERN DISTRICT OF OKLAHOMA

(D.C. No. 06–CR–136–M)

Randal D. Morley, Birmingham, Morley, Weatherford & Priore, P.A., Tulsa,

Oklahoma, for Defendant-Appellant.

Jonathon E. Boatman, Assistant United States Attorney (John C. Richter, United

States Attorney, and Sanford C. Coats, Assistant United States Attorney, with him

on the brief), Oklahoma City, Oklahoma, for Plaintiff-Appellee.

Before O’BRIEN and McKAY, Circuit Judges, and BRIMMER,

*

 District Judge.

McKAY, Circuit Judge.

Defendant was convicted of one count of conspiracy to possess with intent
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to distribute cocaine base, cocaine, marijuana, and ecstasy; one count of

possessing ecstacy with intent to distribute; one count of possessing cocaine base,

cocaine, and marijuana with intent to distribute; and five firearm possession

counts. He was sentenced to a 480-month term of imprisonment. On appeal, he

argues that two of the counts of conviction were not supported by sufficient

evidence and that the prosecutor elicited prejudicial testimony that deprived him

of his right to a fair trial. 

According to the evidence introduced at trial, Defendant was a member of a

gang known as the Playboy Gangster Crips, which dealt drugs from June 2004 to

July 2005 out of a house in Oklahoma City rented by gang member Michael

Maytubby and his girlfriend. Witnesses testified that Defendant and other gang

members used and sold drugs at the residence, warned neighbors not to contact

the police, regularly carried guns, and engaged in a violent shootout with a rival

gang on the street in front of the residence. Searches of the residence on October

17, 2004, and July 6, 2005, uncovered cash, firearms, ammunition, and various

types of drugs. 

Defendant challenges the sufficiency of the evidence supporting his

convictions for possessing ecstacy with intent to distribute on October 17, 2004,

and possessing a firearm in furtherance of a drug-trafficking crime on July 6,

2005. We review this issue de novo to determine whether, “viewing the evidence

in the light most favorable to the prosecution, any rational trier of fact could have
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found the essential elements of the crime[s] beyond a reasonable doubt.” United

States v. McPhilomy, 270 F.3d 1302, 1307 (10th Cir. 2001) (internal quotation

marks omitted). In so doing, we resolve any possible conflicts in the evidence in

favor of the government and assume that the jury found that evidence credible. 

United States v. Williamson, 53 F.3d 1500, 1516 (10th Cir. 1995).

The ecstasy possession count was based on twenty ecstasy pills found in a

rifle case in Mr. Maytubby’s bedroom closet on October 17, 2004, the night of the

gang shootout. To establish that Defendant constructively possessed this ecstasy,

the government was required to show “some nexus, link, or other connection

between [Defendant] and the contraband.” See United States v. Reece, 86 F.3d

994, 996 (10th Cir. 1996). The government could establish that nexus by

presenting “some evidence supporting at least a plausible inference that

[Defendant] had knowledge of and access to” the ecstasy. United States v.

McKissick, 204 F.3d 1282, 1291 (10th Cir. 2000) (internal quotation marks

omitted). 

The government presented evidence that Defendant was present and

involved in the shootout. One neighbor testified that he saw Defendant and other

gang members come out of the house and exchange gunfire with people on the

street, who were, according to an investigating officer’s testimony, members of a

rival gang. When the police arrived at the residence shortly after the shooting

stopped, they found Defendant and two other gang members pretending to be
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asleep inside. The government also presented substantial evidence regarding

Defendant’s participation in the gang’s ongoing drug-trafficking activities,

including direct testimony that Mr. Maytubby sometimes left Defendant in charge

of drug sales at the residence when he went out. The jury heard testimony that

Defendant had full access to Mr. Maytubby’s bedroom and that he sometimes

went into this room to retrieve crack cocaine for sale. The jury further heard

testimony that the ecstasy pills were located in the same unlocked container as a

set of digital scales bearing cocaine residue. An expert witness testified that it

would not be unusual for the leader of a drug-trafficking gang to keep the drugs

in his bedroom and provide smaller quantities of drugs to other members of the

gang as needed for sales. 

Taken in the light most favorable to the government, we conclude that the

evidence supported a reasonable inference that Defendant had knowledge of and

access to the ecstasy at issue. See McKissick, 204 F.3d at 1298. We further

conclude, based on the testimony that twenty pills is a distributable quantity and

that individual users will not usually own this many pills at one time, that the

government introduced sufficient evidence to satisfy the intent element of the

crime. See id. at 1298-99. We thus sustain Defendant’s conviction as to this

count.

The contested firearm possession count stemmed from the July 6, 2005

discovery of four firearms in Mr. Maytubby’s bedroom and one firearm in a
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vehicle outside the house. The July 6 search also uncovered hundreds of rounds

of ammunition, a small vial of what appeared to be PCP, numerous individual

baggies and one large block of marijuana, a significant amount of cocaine

powder, a large quantity of crack cocaine, four sets of digital scales, and over

$4000 in cash, which was placed in a drawer in a manner suggesting that various

amounts had been collected during different transactions. Crack cocaine,

marijuana, and one set of digital scales were located in plain sight on the kitchen

table, and an officer testified that it appeared that the marijuana seeds and stems

were being separated out in preparation for sale. Defendant and several other

gang members had been present in the house just prior to the search.

In contesting the sufficiency of the evidence as to this count, Defendant

points out that no one testified to seeing him with a firearm on July 6 and that no

firearms were found in the room he was in, nor was he carrying a firearm at the

time of the search. However, one regular visitor to the house testified that

Defendant carried a gun with him when he went outside but that he did not

usually carry a gun around the house. Another witness testified that Defendant’s

gun was “[l]ike an American Express card . . . he wouldn’t leave home without

it.” (Tr. at 172.) Witnesses also testified to seeing Defendant with various types

of guns on different occasions. In addition, one witness testified that he

frequently saw guns laying around the house. Moreover, the jury heard expert

testimony that members of drug-distributing gangs may make their guns available
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to other gang members who need them and may keep a stash of guns in a central

location for communal access. Four of the firearms at issue in this count were

found in easily accessible locations in Mr. Maytubby’s bedroom, which

Defendant had full access to. Indeed, one firearm was located in the very drawer

from which Defendant had obtained drugs for purchase on other occasions, next

to a substantial quantity of marijuana and a large amount of cash. We thus

conclude that the government introduced sufficient evidence to “support[] at least

a plausible inference that [Defendant] had knowledge of and access to the

weapon[s].” United States v. Taylor, 113 F.3d 1136, 1145 (10th Cir. 1997).

We likewise reject Defendant’s contention that the government introduced

insufficient evidence to support a conclusion that the firearms were possessed in

furtherance of a drug-trafficking crime. Given the close proximity of the firearms

to drugs and drug proceeds, the evidence that Defendant and other gang members

routinely carried guns during the course of the conspiracy, the evidence that

Defendant and others used firearms to fight a rival gang, and the expert testimony

that the firearms and ammunition found in the bedroom were consistent with

drug-related gang activity, we conclude that the government introduced ample

evidence to support this element of the crime. We thus reject Defendant’s

sufficiency challenge to his conviction on this count.

Defendant also objects to certain testimony elicited by the government at

trial. First, Defendant objects to the government’s elicitation of testimony that
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witnesses were threatened by gang members and feared retaliation for testifying at

Defendant’s trial. Second, he objects to the mischaracterization of two of his

state misdemeanor convictions as felonies. Because Defendant did not raise these

objections at trial, we review only for plain error. United States v. Hooks, 780

F.2d 1526, 1535 (10th Cir. 1986). Thus, we will not reverse unless Defendant

shows the occurrence of an error that was plain, that affected his substantial

rights, and that “seriously affect[ed] the fairness, integrity, or public reputation of

judicial proceedings.” Johnson v. United States, 520 U.S. 461, 467 (1997)

(internal quotation marks omitted).

The government elicited information from various witnesses regarding

threats made by gang members both during the course of the conspiracy and after

the conspiracy had ended. Defendant objects to testimony regarding postconspiracy threats and witnesses’ fear of retaliation, specifically: (1) a witness’s

testimony that he initially lied to the grand jury because he was scared he would

have to testify against the gang members, who might then retaliate against him

while he was in jail, (2) this witness’s affirmative response to the prosecutor’s

query whether he currently was scared and feared retaliation, (3) a second

witness’s statement that he did not want to testify at this trial because he was

afraid of the outcome after he left the courthouse, (4) a third witness’s description

of a beating he received from another gang member for testifying at Mr.

Maytubby’s trial, and (5) this witness’s statement that he would have avoided
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testifying against Defendant if he could have. Defendant also objects to the

prosecutor’s allusion to the last witness’s testimony in asking an expert witness

whether “a whiskey bottle to the face, giving you 15 stitches in your face,” would

send a message to a witness not to testify at trial. (Tr. at 793.) 

We conclude that any error in the prosecution’s elicitation of the objectedto evidence was not plain and did not affect Defendant’s substantial rights. First,

we hold that the government properly elicited testimony regarding the first

witness’s fear of retaliation to explain his prior inconsistent statements. See

United States v. Rutledge, 40 F.3d 879, 885 (7th Cir. 1994), rev’d on other

grounds, 517 U.S. 292 (1996) (holding that trial court did not abuse discretion by

admitting testimony of threats because this was “highly probative evidence

explaining [the witness’s] prior inconsistent statement”). As for the third

witness’s testimony, we note that the objected-to testimony was elicited on

redirect examination after defense counsel engaged in a lengthy attempt to

impugn the witness’s credibility, suggesting that the witness would testify to

whatever he thought would keep him out of trouble. Evidence that the witness

had experienced negative consequences for providing similar testimony at a

previous trial and that he was reluctant to testify at Defendant’s trial was relevant

to rebut defense counsel’s suggestion that his testimony was dependent on

whatever he thought would provide him with the most benefit. See United States

v. Santiago, 46 F.3d 885, 891-92 (9th Cir. 1995) (holding that testimony relating
1

 We reject Defendant’s suggestion that we must find that his right to a fair

trial was prejudiced based on a juror’s stated concerns about Defendant having

access to the jury list and the juror’s related allusion to testimony about

“significant repercussions.” (Tr. at 858.) The court conducted a colloquy with

this juror, in which the juror indicated that his concern was partly spurred by a

question his wife, an avid Court TV watcher, had asked him in general about

security precautions in federal cases. The juror further stated that he did not

believe his impartiality had been affected by his concerns, that he had tried very

hard not to form any opinions at this point in the case and did not believe he had,

and that he was satisfied with the court’s decision to shred the jury list. The

district court was “comfortable with [the juror’s] candor.” (Tr. at 862.) Giving

due deference to the juror’s declaration of impartiality and the court’s credibility

determination that this declaration was sincere, see United States v. Black, 369

F.3d 1171, 1176 (10th Cir. 2004), we find no prejudice to Defendant’s rights

based on this incident. 

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to witnesses’ fear of retaliation was “permissible as a response to [defense

counsel’s] prior attempt to impugn their credibility” by arguing that they would

lie to gain advantage for themselves). We also see no error in the prosecution’s

brief reference to this testimony during the expert witness’s redirect examination,

after defense counsel raised the issue of threats and witness retaliation on cross

examination. As for the testimony of all of the witnesses that they were

frightened to testify at Defendant’s trial, based on the relatively limited nature of

this testimony and the extensive admissible evidence presented to the jury

regarding threats and violent behavior by Defendant and other gang members

during the course of the conspiracy, we conclude that any error in the introduction

of this testimony did not affect Defendant’s substantial rights.1

Finally, Defendant objects to two related references to his prior state
2

 Defendant does not object to the introduction of evidence of these prior

convictions but only objects to their mischaracterization as felonies.

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misdemeanor convictions as felonies.2

 First, the prosecution asked an expert

witness a hypothetical question regarding the “likelihood of someone pleading

guilty to three drug felonies, if they’re not in fact guilty of those felonies.” (Tr.

at 793.) A few minutes later, the government’s next witness, a federal agent,

correctly testified that Defendant pled guilty to state charges of possession of

cocaine, marijuana, and drug paraphernalia on July 6, 2005, but then incorrectly

stated that all three counts were felonies. However, defense counsel thoroughly

questioned the agent regarding this error during cross examination, and the agent

admitted she was unfamiliar with Oklahoma state law. She agreed with defense

counsel that the drug paraphernalia count was in fact a misdemeanor and

indicated that the marijuana count might be as well. “Where evidence refuting a

false statement is revealed in cross-examination, the government cannot be said to

have relied on the false direct-examination testimony to obtain a guilty verdict.” 

United States v. Crockett, 435 F.3d 1305, 1317 (10th Cir. 2006). Based on the

agent’s admissions during cross examination, we conclude that the earlier

erroneous characterization of Defendant’s misdemeanor convictions as felonies

did not affect his substantial rights or undermine the fundamental fairness of his

trial. 

Therefore, we AFFIRM Defendant’s conviction and sentence.