*

 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.

JAMES LEE EDWARDS, JR., a.k.a.

Bear,

Defendant-Appellant.

No. 07-6212

 

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE WESTERN DISTRICT OF OKLAHOMA

(D.C. No. 06-CR-136-004-M)

Bill Zuhdi, Oklahoma City, Oklahoma, for Defendant–Appellant.

Jonathon E. Boatman, Assistant United States Attorney (John C. Richter, 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 conspiracy to possess with intent to distribute
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cocaine base, cocaine, marijuana, and ecstasy, as well as one count of possession

with intent to distribute ecstasy and three firearm possession counts. He was

sentenced to a 248-month term of imprisonment. On appeal, he challenges the

sufficiency of the evidence supporting his convictions on all counts, the

constitutionality as applied to him of the statute criminalizing firearm possession

by drug users, certain evidentiary rulings made by the district court, and the

district court’s calculation of the advisory Sentencing Guidelines range.

I. Sufficiency of the Evidence

We first address Defendant’s argument regarding the sufficiency of the

evidence, reviewing the record de novo to determine whether, “viewing the

evidence in the light most favorable to the prosecution, any rational trier of fact

could have 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). 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).

To prove the conspiracy count, the government was required to show (1) an

agreement to violate the law, (2) Defendant’s knowledge of at least the essential

objectives of the conspiracy, (3) Defendant’s knowing and voluntary involvement

in the conspiracy, and (4) interdependence among the conspirators. See United

States v. Evans, 970 F.2d 663, 668-71 (10th Cir. 1992). On appeal, Defendant
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asserts that the government did not prove the third and fourth elements of the

crime. However, we conclude that the government introduced ample evidence

from which a rational trier of fact could have found these elements beyond a

reasonable doubt.

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

street gang known as the Playboy Gangster Crips. Between June 2004 and July

2005, Defendant and fellow gang members were frequent visitors at an Oklahoma

City residence rented by gang member Michael Maytubby and his girlfriend. 

Witnesses testified that Defendant regularly smoked marijuana at the residence. 

For instance, a daily visitor to the house testified that Defendant was usually

smoking a marijuana blunt or “looking to get one” when he saw him. (Tr. at

302.) Another regular visitor testified that Defendant smoked marijuana like the

witness smoked cigarettes, meaning a pack a day. A neighbor testified that

Defendant would smoke marijuana every time he showed up at the house, and the

jury was shown a video recorded by this neighbor in the fall of 2004, which

showed Defendant smoking what appeared to be a marijuana blunt. Witnesses

also testified that Defendant and other gang members occasionally used PCP at

the residence.

In addition to using drugs, Defendant and other gang members sold drugs

out of the house. Neighbors suspected, and visitors to the house confirmed, that

drug deals regularly occurred at the house. One regular customer testified that he
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usually dealt with Mr. Maytubby, but that sometimes when he knocked on the

door, Defendant would answer and ask what he was looking for, then supply him

with drugs if Mr. Maytubby was busy or away from the house. Another frequent

visitor testified that crack, marijuana, and “pills of some sort” were available at

the house. (Tr. at 449.) Gang members stopped by police in the vicinity of the

residence on various occasions were found in possession of marijuana, crack

cocaine, individually wrapped ecstasy pills, and large amounts of cash. Two

witnesses testified that Defendant and other gang members pooled their money to

buy powder cocaine, which Mr. Maytubby then cooked into crack for the

members to distribute. An expert witness testified that pooling money in this way

allows drug-trafficking gangs to receive a bulk discount on their cocaine

purchases.

Witnesses also testified that the gang members were regularly in possession

of guns. For instance, one regular visitor to the house testified that all of the

gang members usually had firearms on them in the house and often left firearms

lying around the house as well. According to an expert witness, a drugtrafficking gang based out of a particular residence will commonly keep a set of

business guns for the gang members’ common use. Several gang members were

also found in possession of firearms by law enforcement officers on various

occasions during the course of the conspiracy. For instance, Defendant was

stopped by police on November 30, 2004, after leading police on a vehicular
1

 Defendant argues that we should disregard this testimony because it was

impeached by an officer’s testimony that the neighbor reported on the night of the

shootout that he did not know who was involved in the shooting. However, we

take the evidence in the light most favorable to the government and “do not weigh

conflicting evidence or consider witness credibility, as that duty is delegated

exclusively to the jury.” United States v. Castorena-Jaime, 285 F.3d 916, 933

(10th Cir. 2002).

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chase through residential neighborhoods. The subsequent search of his vehicle

revealed a loaded handgun on the floor under the driver’s seat. This handgun had

previously been reported stolen by its legal owner.

Moreover, the government introduced evidence suggesting that Defendant

and his fellow gang members used guns to protect or to further their drugtrafficking operation. An expert testified at trial that street drug gangs will often

control a particular area and that they may engage in violent fights if a rival gang

attempts to encroach on their territory. The jury also heard testimony regarding a

violent gunfight that occurred on the street in front of Mr. Maytubby’s residence. 

On the night of October 17, 2004, residents of the neighborhood were disturbed

by the prolonged sound of gunshots, as several individuals exchanged extensive

gunfire down the street. One neighbor later testified that he recognized

Defendant, Mr. Maytubby, and another gang member as three of the persons

involved in the shootout.1

 The police received around thirty-five 9-1-1 calls

regarding the shooting. When they arrived, they saw that “pretty much [the]

whole block” was full of shell casings (R. at 551). Stray bullets had caused
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extensive damage throughout the neighborhood. 

The officers who approached Mr. Maytubby’s residence saw that the glass

storm door had apparently been shattered by a bullet. However, the closed door

behind the storm door had no holes in it, suggesting that it had been open during

the shooting. Shortly after the police knocked on the front door, it was opened by

Mr. Maytubby. In response to the officers’ queries, he reported that he had been

asleep and did not know who was inside his residence. The police noticed a shell

casing just inside of the house, by Mr. Maytubby’s feet. They then entered the

house, where they found Defendant and two other gang members sitting upright

on couches in the den, fully clothed, wearing winter coats, and pretending to be

asleep. The officers also found a rifle, shell casings, boxes of ammunition, digital

scales, marijuana, and ecstasy in the residence. 

The government also presented other evidence suggesting that members of

the gang worked to protect the gang’s drug-trafficking efforts and prevent

interference by law enforcement officers. For instance, a neighbor testified that

he and his wife were confronted and threatened by Defendant and other gang

members after they found out that he had recorded a video of their activities and

given this video to the police. This neighbor further testified that Defendant

“acted like he was the muscle, the tough guy over there [at the house].” (Tr. at

64.) Another neighbor testified that Defendant was present when a fellow gang

member threatened to kill her and her children because neighbors had called the
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police about the shootout. The government also presented evidence suggesting

that Defendant at least occasionally guarded the door to the residence to ensure

that only known individuals were allowed inside.

We thus conclude that the government presented ample evidence from

which a rational trier of fact could conclude that Defendant was knowingly and

voluntarily involved in this drug-distribution conspiracy both as a distributor and

as the “muscle.” We further find ample evidence supporting a conclusion that the

coconspirators were interdependent, given the evidence that they pooled their

money together to purchase drugs, referred clients to one another, and worked

together to oppose any threats to their drug-trafficking operation.

Defendant’s second count of conviction was for possession of ecstasy with

intent to distribute or for aiding and abetting the same. This count stems from

twenty ecstasy pills found in a bedroom in Mr. Maytubby’s residence on the night

of the shootout. Specifically, the pills were found in a rifle case located in a

closet in Mr. Maytubby’s bedroom. Given this location and the lack of specific

evidence tying him to ecstasy possession or distribution, Defendant argues that he

cannot be found to have possessed the ecstasy at issue. However, we conclude

that ample evidence supports Defendant’s conviction on this count. 

The government presented evidence that Defendant regularly dealt drugs

out of Mr. Maytubby’s house, which was the base of a large-scale drug-trafficking

operation involving ecstasy, crack, and marijuana. A regular visitor to the house
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testified that Defendant had access to the bedroom where the ecstasy pills were

found and that close associates knew that guns, drugs, and money were kept in

that bedroom. The government presented evidence from which the jury could

reasonably conclude that Defendant carried a gun around the house, guarded the

front door, asked potential customers what they were looking for, and engaged in

a shootout to protect or further his gang’s drug-trafficking efforts. At a

minimum, the evidence supported a conclusion that Defendant aided and abetted

Mr. Maytubby’s possession of the ecstasy. The jury also heard evidence

supporting a finding of intent to distribute, including testimony that the number of

pills found was a distributable quantity and that a person keeping ecstasy only for

personal use would rarely be in possession of more than four or five pills at one

time. We thus reject Defendant’s sufficiency challenge as to this count.

Defendant’s three firearm possession counts consisted of one count of

possessing a firearm in furtherance of a drug-trafficking crime, based on a silver

rifle found in Mr. Maytubby’s residence on October 17, the night of the shootout,

and two counts of possessing a firearm as a user of controlled substances. Of the

two user-in-possession counts, one was based on the silver rifle, while the other

was based on the handgun found in Defendant’s vehicle on November 30, 2004. 

Defendant argues that the government introduced insufficient evidence to prove

that he possessed the silver rifle because it, like the twenty ecstasy pills discussed

above, was located in Mr. Maytubby’s bedroom. He also argues that the
2

 Defendant contests the credibility of this testimony, but we do not weigh

credibility in our review of the sufficiency of the evidence. Defendant also

argues that the silver rifle found in the house could not have been used in the

shootout because none of the more than fifty shell casings recovered by the police

matched to the rifle. However, we note that several neighbors testified that they 

found casings or bullets that the police had missed. Thus, the jury could quite

reasonably have concluded that Defendant fired the silver rifle during the

shootout, despite the lack of ballistic evidence.

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government did not prove that he was a user of controlled substances at the time

he was in possession of the rifle on October 17 and the handgun on November 30.

We conclude that the government introduced sufficient evidence for a

reasonable jury to conclude that Defendant possessed the silver rifle on October

17, 2004. The jury heard testimony that Defendant was seen shooting a silver

rifle on that night and that a silver rifle was later found in the house where

Defendant was pretending to be asleep.2

 The jury heard testimony that Defendant

sometimes entered and exited Mr. Maytubby’s bedroom while carrying firearms.

The jury heard testimony that street gangs sometimes engage in violent fights

with other gangs to protect or expand their drug turf and that drug-trafficking

gangs often keep a common stash of guns at their base of operations for all

members to use as necessary. Taken in the light most favorable to the

government, the evidence introduced at trial supports the jury’s finding that

Defendant possessed the silver rifle on October 17, 2004. 

Given the close proximity between firearms and drugs throughout the

conspiracy, including the night of October 17, 2004, we also find sufficient
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evidence to support a conclusion that the firearm was possessed in furtherance of

a drug-trafficking crime. Indeed, the jury could reasonably have concluded that

Defendant himself fired the silver rifle at members of a rival gang in order to

further his gang’s drug-trafficking conspiracy. We thus see ample evidence

supporting Defendant’s conviction for possessing a firearm in furtherance of a

drug-trafficking crime on October 17, 2004.

We reject Defendant’s contention that the government presented

insufficient evidence that he was a user of controlled substances on the dates

alleged in the two user-in-possession counts. While it is true that the government

did not introduce specific, direct evidence pinpointing precise dates on which

Defendant used drugs, the evidence introduced at trial supported a reasonable

inference that Defendant was a user of controlled substances during all relevant

times. Several witnesses testified that Defendant was a habitual, heavy user of

marijuana at the time the conspiracy was in effect, and none of the witnesses

indicated that Defendant’s drug usage changed or varied over the year of the

conspiracy, which lasted from June 2004 to July 2005. We conclude that the jury

could reasonably have taken the witnesses’ testimony regarding Defendant’s

consistent, heavy drug use to refer to the entire time period of the conspiracy. 

Moreover, the jury could reasonably have concluded that the substance Defendant

was seen smoking in video footage from the fall of 2004 was marijuana, further

supporting a conclusion that Defendant was a drug user during this time period. 
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We thus conclude that the government introduced sufficient evidence to support a

finding that Defendant was a user of controlled substances in possession of a

firearm in October and November 2004.

II. Constitutional Challenge

For similar reasons, we reject Defendant’s as-applied constitutional

challenge to the statute criminalizing firearm possession by drug users. Such a

challenge will fail where the government has introduced sufficient evidence of a

temporal nexus between the drug use and firearm possession. See United States v.

Sanders, 43 F. App’x 249, 256 (10th Cir. 2002) (rejecting as-applied challenge to

statute where government introduced evidence that defendant used and possessed

drugs three months prior to discovery of firearm in his residence, police found

marijuana and drug paraphernalia in his residence at the time firearm was

discovered, and he was chronic drug user in months following the firearm’s

discovery). Given the ample evidence of Defendant’s heavy, habitual drug use in

the year during which he possessed the firearms at issue, we conclude that the

statute was not unconstitutionally vague as applied to him.

III. Evidentiary Rulings

Defendant also challenges certain evidentiary rulings made by the district

court. Specifically, Defendant argues that the court erred in allowing the

prosecution to introduce five recordings of 9-1-1 calls made on the night of the

shootout and testimony regarding Defendant’s two prior convictions for marijuana
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and cocaine possession. We review for abuse of discretion the district court’s

admission of this evidence over Defendant’s objections. See United States v.

Green, 175 F.3d 822, 833 (10th Cir. 1999).

Defendant argues that the 9-1-1 recordings were cumulative and that the

probative value of this evidence was substantially outweighed by the danger of

unfair prejudice. We disagree. The recorded calls were quite short, and the

government played only five of the approximately thirty-five calls that had been

recorded. These calls from various neighbors documented the shootout and

tended to show, inter alia, that Defendant and his fellow gang members had not

slept through the shootout as they appeared to be pretending when the police

arrived. Nothing in the record before us convinces us that these calls should have

been excluded as cumulative nor that they were so unfairly prejudicial as to

substantially outweigh their probative value. We thus conclude that the district

court did not abuse its discretion in admitting the calls.

We find more problematic the court’s admission of evidence regarding

Defendant’s previous drug convictions. Over Defendant’s objection, the court

allowed the government to introduce evidence that Defendant had a prior felony

conviction for possessing a small amount of cocaine in July 2002 and a prior

misdemeanor conviction for possessing marijuana in August 2002. According to

evidence in the record, both prior convictions involved the discovery of small,

personal-user amounts of drugs in Defendant’s vehicle during two different traffic
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stops. In arguing before the district court that this evidence was admissible, the

government simply asserted without explanation or analysis that the convictions

were being offered “to prove the defendant’s intent in the current case, to prove

his knowledge, to prove his motive in this case, to prove that there was no

mistake or accident, and to corroborate the testimony of several other witnesses

who will testify at trial to seeing the defendant possess and sell cocaine and

possess, sell, and use marijuana.” (R. Doc. 335 at 3-4.) The district court did not

require the government to clarify how the evidence was relevant for these

purported purposes, but merely noted the proffered purposes and held that the

evidence was offered for a proper purpose, that it was relevant, and that the

probative value was not substantially outweighed by its potential for unfair

prejudice. 

On appeal, the government again asserts with little explanation that the

evidence was obviously relevant for all of these purposes. We find the

government’s unsupported assertions troubling. We note, for instance, that the

government asserted before the district court and maintains on appeal that the

evidence was relevant to show absence of mistake or accident. However, lack of

mistake was never an issue at this case—Defendant never asserted that he was

unaware of the nature of the substances at issue but simply argued that he was not

personally involved in the distribution or possession for distribution of these

substances. Likewise, we are unable to discern how evidence that Defendant
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possessed personal-usage amounts of controlled substances is relevant to show

that he intended to distribute narcotics in the instant case. Cf. United States v.

Cherry, 433 F.3d 698, 702 (10th Cir. 2005) (holding that evidence of prior

conviction for “knowing distribution” was relevant to show specific intent to

distribute in charged offense). Although the government correctly points out that

we have held that corroboration may be a valid reason for the admission of prior

acts evidence, see United States v. Porter, 881 F.2d 878, 886 & n.8 (10th Cir.

1989), we conclude that the disputed evidence in this case was not relevant for

any permissible corroborative purposes. Evidence of Defendant’s prior

possession of personal-user amounts of drugs did not corroborate witnesses’

testimony regarding distribution, and it could only corroborate witnesses’

testimony of current drug possession through an impermissible propensity

argument. 

Moreover, we note that the prior convictions in this case did not involve

factually similar conduct. As in United States v. Wilson, 107 F.3d 774, 785 (10th

Cir. 1997), Defendant’s prior convictions for possessing a small amount of drugs

in his vehicle “does little to support an inference that [he] either possessed, knew

he possessed, or intended to distribute the [drugs] found at” the residence at issue. 

See also United States v. Becker, 230 F.3d 1224, 1232 (10th Cir. 2000) (finding

evidence of prior conviction for conspiracy to possess methamphetamine not

relevant to charges of manufacturing methamphetamine and possessing marijuana
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with intent to distribute because prior acts lacked facial similarities to the charged

offense). We conclude that the evidence of Defendant’s prior drug possession

was not relevant in this distribution case, and we thus hold that the court abused

its discretion by admitting this evidence.

However, “[w]here the evidence against a defendant is overwhelming, any

error in mentioning a defendant’s criminal record is harmless.” United States v.

Sloan, 65 F.3d 861, 865 (10th Cir. 1995). As described above, the government

introduced extensive evidence of Defendant’s involvement in this large-scale

drug-trafficking operation, his heavy, habitual, drug use, and his involvement

with firearms. In light of the overwhelming evidence against Defendant that was

properly admitted at trial, we hold that the minimal evidence of his two prior drug

possession convictions did not substantially influence the outcome of his trial. 

See Becker, 230 F.3d at 1233. We thus conclude that the court’s error in

admitting this evidence was harmless. Because we see no other errors in the

court’s decisions at trial, we likewise reject Defendant’s cumulative error

argument. See Workman v. Mullin, 342 F.3d 1100, 1116 (10th Cir. 2003) (noting

that cumulative error analysis requires at least two errors).

IV. Sentencing

Finally, Defendant argues that the district court erred in calculating the

applicable Guidelines range for his sentence. Specifically, Defendant argues that

the court should not have applied two criminal history points for two convictions
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with deferred sentences because neither conviction involved a term of

imprisonment. Reviewing this legal issue de novo, see United States v. Tom, 494

F.3d 1277, 1281 (10th Cir. 2007), we conclude that the district court did not err in

applying these criminal history points. These points were assessed under §

4A1.1(c) of the Guidelines. Unlike subsections (a) and (b) of § 4A1.1, subsection

(c) is not limited to sentences of imprisonment. Indeed, the commentary to the

Guidelines specifically states that a diversionary disposition qualifies as a prior

sentence under this subsection “where there is a finding or admission of guilt in a

judicial proceeding.” U.S.S.G. § 4A1.1 cmt. n.3. Defendant does not contest the

government’s assertion that both of the convictions at issue were diversionary

dispositions involving an admission of guilt in a judicial proceeding. We thus

reject Defendant’s contention that the court erred in assessing criminal history

points pursuant to § 4A1.1(c) for these convictions.

For the foregoing reasons, we AFFIRM Defendant’s conviction and

sentence.