1

RECOMMENDED FOR FULL-TEXT PUBLICATION

Pursuant to Sixth Circuit Rule 206

ELECTRONIC CITATION: 2004 FED App. 0336P (6th Cir.)

File Name: 04a0336p.06

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

_________________

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v.

LARRY SWAFFORD,

Defendant-Appellant.

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No. 03-5468

Appeal from the United States District Court

for the Eastern District of Tennessee at Chattanooga.

No. 02-00014—Curtis L. Collier, District Judge.

Argued: June 11, 2004

Decided and Filed: September 30, 2004 

Before: KEITH, CLAY, and GIBBONS, Circuit Judges.

_________________

COUNSEL

ARGUED: Nikki C. Pierce, FEDERAL DEFENDER

SERVICES, Greeneville, Tennessee, for Appellant. Paul W.

Laymon, Jr., ASSISTANT UNITED STATES ATTORNEY,

Chattanooga, Tennessee, for Appellee. ON BRIEF: Nikki

C. Pierce, FEDERAL DEFENDER SERVICES, Greeneville,

Tennessee, for Appellant. Paul W. Laymon, Jr., ASSISTANT

2 United States v. Swafford No. 03-5468

UNITED STATES ATTORNEY, Chattanooga, Tennessee,

for Appellee.

GIBBONS, J., delivered the opinion of the court, in which

KEITH, J., joined. CLAY, J. (pp. 11-12), delivered a separate

concurring opinion.

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OPINION

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JULIA SMITH GIBBONS, Circuit Judge. Defendantappellant Larry Swafford was charged in a three count

indictment in the United States District Court for the Eastern

District of Tennessee with (1) possession with intent to

distribute fifty grams or more of methamphetamine, in

violation of 21 U.S.C. § 841(a)(1) and (b)(1)(B);

(2) possession with intent to distribute methamphetamine, in

violation of 21 U.S.C. § 841(a)(1) and (b)(1)(C); and

(3) possession of a firearm in furtherance of the drug

trafficking crimes charged in the first two counts, in violation

of 18 U.S.C. § 924(c). After a jury trial, Swafford was

convicted on all three counts and sentenced to 180 months

imprisonment. Swafford brought this appeal, arguing that the

evidence was insufficient to support his conviction for

possession of a firearm in furtherance of a drug trafficking

offense and that the district court erred in admitting the

testimony of law enforcement officers who testified (1) that

the amounts of drugs possessed by Swafford were consistent

with resale and that dealers often carry firearms in connection

with their sales activities; and (2) that a name on a business

card belonged to a known drug dealer and numbers on that

card corresponded to common drug prices. For the following

reasons, we affirm Swafford’s conviction.
No. 03-5468 United States v. Swafford 3

1

An officer testified that playing cards are commonly used to scoop

methamphetamine.

I.

On November 15, 2001, Detective Jimmy Smith of the

Bradley County Sheriff’s Office acquired and executed a

search warrant for Swafford’s residence, a single family

house in Cleveland, Tennessee. Smith, accompanied by other

officers, arrived at the residence shortly after 9:10 p.m. When

Swafford’s wife answered the door, the officers entered and

found Swafford lying in bed holding an infant. An officer

found a loaded .45 caliber semi-automatic pistol within arm’s

reach of where he had been lying. The officer seized this

pistol, as well as two loaded .22 caliber pistols. The officers

did not seize several rifles and shotguns found in a gun

cabinet.

An officer found ten to fifteen garbage bags in the bed of an

old truck in a makeshift garage behind the house. The

officers found a Tupperware bowl containing three one-ounce

bags of marijuana and some loose marijuana in one of the

garbage bags. Also inside the bag were numerous sandwich

baggies, each of which had two corners cut out. The officers

also found methamphetamine weighing a total of 66.5 grams

hidden in a stereo on a workbench in the garage. A shelf on

the workbench held a blender which appeared to contain

methamphetamine residue, a set of digital scales, and a

playing card.1 Officers found $934 in cash in Swafford’s

wallet, as well as a lawyer’s business card, on the back of

which was written “Tony Perry 280” and “Ron 110.”

II.

In reviewing the sufficiency of the evidence for a criminal

conviction, we must determine whether, after viewing the

evidence in the light most favorable to the prosecution, “any

rational trier of fact could have found the elements of the

4 United States v. Swafford No. 03-5468

offense beyond a reasonable doubt.” United States v. Davis,

306 F.3d 398, 408 (6th Cir. 2002).

We generally review evidentiary decisions for an abuse of

discretion. United States v. Talley, 164 F.3d 989, 1000 (6th

Cir. 1999). If, however, the appealing party did not raise an

objection to the introduction of the evidence at trial, we

review the judge’s decision for plain error. United States v.

Cowart, 90 F.3d 154, 157 (6th Cir. 1996). “[B]efore an

appellate court can correct an error not raised at trial, there

must be (1) error, (2) that is plain, and (3) that affects

substantial rights. If all three conditions are met, an appellate

court may then exercise its discretion to notice a forfeited

error, but only if (4) the error seriously affects the fairness,

integrity, or public reputation of judicial proceedings.”

Johnson v. United States, 520 U.S. 461, 467 (1997) (citations

omitted).

III.

Swafford first argues that his conviction for possession of

a firearm in furtherance of a drug offense was not supported

by sufficient evidence. Eighteen U.S.C. § 924(c) provides:

Any person who, during and in relation to any crime of

violence or drug trafficking crime . . . for which the

person may be prosecuted in a court of the United States,

uses or carries a firearm, or who, in furtherance of any

such crime, possesses a firearm, shall, in addition to the

punishment provided for such crime of violence or drug

trafficking crime –

(i) be sentenced to a term of imprisonment of not less

than 5 years.
No. 03-5468 United States v. Swafford 5

2

As this court has stated, § 924(c) “criminalizes two separate and

distinct offenses,” using or carrying a firearm during and in relation to a

drug offense, and possessing a firearm in furtherance of a drug offense.

United States v. Combs, 369 F.3d 925, 933 (6th Cir. 2004). Swafford was

charged with the latter.

18 U.S.C. § 924(c)(1)(A).2 This statute was interpreted by

this court in United States v. Mackey, where we stated:

[W]e emphasize that the possession of a firearm on the

same premises as a drug transaction would not, without

a showing of a connection between the two, sustain a

§ 924(c) conviction. In order for the possession to be in

furtherance of a drug crime, the firearm must be

strategically located so that it is quickly and easily

available for use. Other factors that may be relevant to

a determination of whether the weapon was possessed in

furtherance of the crime include whether the gun was

loaded, the type of weapon, the legality of its possession,

the type of drug activity conducted, and the time and

circumstances under which the firearm was found.

265 F.3d 457, 462 (6th Cir. 2001) (citations omitted). The

court noted that these factors would help the court “to

distinguish possession in furtherance of a crime from innocent

possession of a wall- mounted antique or an unloaded hunting

rifle locked in a cupboard.” Id.

In the present case, Swafford’s .45 caliber pistol was

strategically located so that it was quickly and easily available

for use. The gun was found loaded, with its handle pointing

up, within arm’s reach of the bed where Swafford was lying.

It can hold a large number of rounds, and because it is

semiautomatic, it can fire these rounds in rapid succession.

Agent Frank Ledford of the Drug Enforcement

Administration testified that such weapons play a role in drug

distribution, as dealers carry them for protection and

intimidation purposes. Because Swafford had been convicted

of a prior felony, his possession of the gun was unlawful.

6 United States v. Swafford No. 03-5468

Finally, the gun was discovered as the officers executed a

search warrant looking for drugs, which they ultimately

found. Thus, each of the Mackey factors points to the

conclusion that this weapon was possessed in furtherance of

the drug offenses.

In addition, we have stated that “[a]lthough possession of

a firearm in the same premises as the drug trafficking

activities alone is insufficient to support a conviction under

section 924(c), a jury can reasonably infer that firearms which

are strategically located so as ‘to provide defense or

deterrence in furtherance of the drug trafficking’ are used in

furtherance of a drug trafficking crime.” United States v.

Couch, 367 F.3d 557, 561 (6th Cir. 2004). While in Couch

the firearms were in closer proximity to the drugs than was

the case here, we also relied on testimony from a law

enforcement officer that “at least one of the firearms

discovered – the Smith & Wesson handgun – is commonly

associated with drug trafficking crimes.” Id. The same

testimony was offered here with regard to the .45. Also,

while the drugs were not found in the same room as the gun,

the garage where they were found was easily accessible from

the bedroom where Swafford and the gun were found.

Swafford could reach the garage, which was attached to the

house by wooden boards, simply by walking ten to fifteen

feet out the bedroom door. In addition, the gun seems much

more useful for protection purposes if kept close to Swafford,

the potential user, rather than close to the drugs. Considering

this evidence, we conclude that a rational trier of fact could

have found the elements of the crime beyond a reasonable

doubt.

Swafford next argues that the district court erred by

admitting Agent Ledford’s testimony that the drugs were

possessed with the intent to distribute and that the guns were
No. 03-5468 United States v. Swafford 7

3

Agent Ledford testified as follows:

Q: But based upon the factors that I’ve just set out for you that

you know to be the evidence, do you have an opinion as to

whether or not this methamphetamine was possessed with

the intent to distribute it?

A: Yes, sir, that’s what it was designed for, that’s what it was

doing.

Q: Why, in your opinion, was that possessed with the intent to

distribute?

A: Because you have the amount, 21⁄2, maybe – approximately

21⁄2 ounces, you’ve got the blender where it’s been chopped

up so it can be weighed out correctly on the scales, then you

have the baggies with the corners cut out of them.

Q: What about the presence of the firearms; does that have a

role in distribution-of-drug activity?

A: Yes, sir, it does.

Q: What is that?

A: We see that drug dealers carry firearms for intimidation and

protection of their product.

possessed in furtherance of the drug offenses.

3

 Swafford

contends that Agent Ledford testified to an ultimate issue in

the trial, thereby improperly invading the province of the jury

and violating his Sixth Amendment right to a jury trial.

Because Swafford did not object at trial, we review the

district court’s decision for plain error.

Agent Ledford testified on behalf of the government as an

expert in the area of methamphetamine investigations.

Properly qualified expert testimony is generally admissible if

it “will assist the trier of fact to understand the evidence or to

determine a fact in issue.” Fed. R. Evid. 702. “Our court

regularly allows qualified law enforcement personnel to

testify on characteristics of criminal activity, as long as

appropriate cautionary instructions are given, since

knowledge of such activity is generally beyond the

understanding of the average layman.” United States v.

Thomas, 99 Fed. Appx. 665, 668-69 (6th Cir. 2004) (citing

8 United States v. Swafford No. 03-5468

4

In the instant case, the district court properly cautioned the jury:

You have . . . heard the testimony of Drug Enforcement

Administration Special Agent Frank Ledford. Special Agent

Ledford was offered as an expert in the area of

methamphetamine investigations. An expert witness has special

knowledge or experience that allows the witness to give an

opinion.

You do not have to accept an expert’s opinion. In deciding how

much weight to give it, you should consider the witness’s

qualifications and how he reached his conclusions as well as any

other factors you think are relevant to determining whether the

expert is a credible witness.

United States v. Bender, 265 F.3d 464, 472 (6th Cir. 2001)).4

The recognized role of police officers as experts in cases such

as this one requires that we find no error in the admission of

Agent Ledford’s testimony.

Police officers are routinely allowed to testify that

circumstances are consistent with distribution of drugs rather

than personal use. See United States v. Jones, 81 Fed. Appx.

45, 48 (6th Cir. 2003) (affirming defendant’s sentence where

police officer testified that the amount of drugs found, as well

as the presence of zip-lock bags and a digital scale, suggested

that defendant intended to distribute the drugs); United States

v. Dillard, 78 Fed. Appx. 505, 514-15 (6th Cir. 2003)

(affirming defendant’s sentence where officer testified that

amount of drugs was more consistent with distribution than

with personal use); United States v. Quinn, 230 F.3d 862, 866

(6th Cir. 2000) (affirming defendant’s sentence where officer

testified that amount of drugs was more consistent with

distribution than with personal use).

In addition, we find that the district court did not err in

allowing Agent Ledford to testify that firearms play a role in

drug trafficking activity. We recently held admissible an

officer’s testimony that large-capacity pistols are commonly

used in drug trafficking. See Thomas, 99 Fed. Appx. at 669.
No. 03-5468 United States v. Swafford 9

In that case, we observed that “[m]ost courts have taken a

very tolerant view of the admissibility of expert testimony

linking the presence of firearms to drug trafficking activities.”

Id. (citing United States v. Allen, 269 F.3d 842, 845-46 (7th

Cir. 2001) (upholding admission of police expert testimony

that it is common for drug dealers to keep weapons to protect

themselves and their drugs) and United States v. Jackson, 67

F.3d 1359, 1366 (8th Cir. 1995) (same)). In addition, in

United States v. Pearce, we held admissible an officer’s

testimony that handguns found inside a suspicious building

were typical of guns found in crack houses. 912 F.2d 159,

163 (6th Cir. 1990). Similarly, the district court in this case

did not plainly err in allowing Agent Ledford to testify that

“drug dealers carry firearms for intimidation and protection of

their product.”

Last, Swafford argues that the district court erred in

admitting the testimony of Detective Smith who identified a

name handwritten on a business card found in Swafford’s

wallet as that of a known drug dealer and who stated that two

dollar amounts written on the card corresponded to the cost of

certain quantities of methamphetamine. Swafford argues that

this testimony was impermissibly based on hearsay and

speculation. Swafford did not object to the admission of this

testimony, contemporaneously or otherwise, although later in

the trial he objected to the admission of the business card on

relevancy grounds. We therefore review for plain error.

Smith’s testimony regarding common drug prices helped

the jury to understand the evidence presented, and therefore

was proper expert testimony. See Bender, 265 F.3d at 472.

Further, he did not state that the numbers actually represented

drug debts, which would have been beyond his knowledge,

just that they were consistent. Finally, Smith’s testimony,

elicited during cross examination, that Tony Perry, whose

name was written on the card, was a known drug dealer was

based on personal knowledge gleaned from past

investigations. The admission of Smith’s testimony was not

plain error.

10 United States v. Swafford No. 03-5468

IV.

For these reasons, we affirm Swafford’s conviction and

sentence.
No. 03-5468 United States v. Swafford 11

____________________

CONCURRENCE

____________________

CLAY, Circuit Judge, concurring. I concur with the

majority’s disposition but not with all of its reasoning on the

issue of whether Defendant possessed a firearm “in

furtherance of” a drug trafficking crime, under 18 U.S.C.

§ 924(c)(1)(A). This issue is closer than the majority

suggests.

The majority states that “each of the Mackey factors points

to the conclusion that this weapon was possessed in

furtherance of the drug offenses.” This is not entirely true.

For one, “the time and circumstances under which the firearm

was found,” United States v. Mackey, 265 F.3d 457, 462 (6th

Cir. 2001), provide little evidence of any connection between

the firearm and drug trafficking. The firearm was not

discovered during any drug transaction but, rather, during a

police search of the residence. Another factor in Mackey was

the proximity of the firearm to the drugs. Id. at 462. In the

instant case, the facts are either ambiguous or favor

Defendant’s position, inasmuch as the firearm was found in

the bedroom and the drugs were in the garage.

There were Mackey factors supporting the connection

between the firearm and the drug offense, such as the gun

being loaded, illegally possessed, and in a very easily

accessible location. Based upon these factors it would not be

irrational for a factfinder to sustain a conviction under

§ 924(c)(1)(A). But this is a close issue, and any small

variation in the facts, diminishing the connection between the

gun and the drugs, might have been enough to render the

evidence insufficient to support the conviction. Under very

similar facts, in United States v. Hall, 20 F.3d 1084 (10th Cir.

1994), the Tenth Circuit ruled that there was insufficient

evidence to support a conviction under § 924(c), where a

police search of a house found drugs in a package on top of a

12 United States v. Swafford No. 03-5468

refrigerator in the kitchen and a loaded firearm on the top

shelf of a closet in an upstairs bedroom. Significantly, in Hall

the charges were under the “during and in relation to” clause

of § 924(c)(1)(A), which demands less evidence of a

connection to the drug trafficking offense than is required by

the “in furtherance of” clause that was charged in the instant

case. Mackey, 265 F.3d at 462.

The majority presents this issue as straightforward, but it is

not. There is sufficient evidence to support a conviction, but

only by a close margin.