1 RECOMMENDED FOR FULL-TEXT PUBLICATION Pursuant to Six

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ELECTRO NIC CIT

ATION: 2004 FED App . 0336P (6th C ir.) File Name: 04a03 36p.06



### UNITED STATES COURT OF APPEALS

FOR THE SIXT H CIR CUIT

_________________ U NITED S TAT ES OF A MERICA ,

Plaintiff-Appellee,

v.

L ARRY S WAFFORD , Defenda nt-Appel

lant. X - - - -> , - - N No. 03-5468

Appeal from the United States District Court for the Eastern District of Tennessee at Chattanoog a. No. 02-00014—Curtis L. Collier, District Judge.

Argued: June 11, 2004 Decided and Filed: September 30, 2004
Befor e: KEI TH, CL

AY, and G

IBB ONS, Circ

uit Judges

.

_________________ COUNSEL
ARGUED: Nikki C. Pierce, F E DERAL DEFENDER SERVI CES, Greeneville, Tennessee, for A ppel lant. Paul W

. Lay mon, Jr., ASSISTANT UNITED STATES ATTORNEY, Chattanooga, Tennessee, for A ppellee. ON BRI EF: Nikki C. Pierce, FEDERAL DE

FENDER SERVICES, Greeneville, Tenne ssee, for Appellant. Paul W. Lay mon, Jr., ASSISTA

N T 2 United Sta tes v. Swa fford No. 03-5468

UNITED STATES ATTORNEY, Chattanooga, Tennessee, for Appellee.
GIB BONS, J., delivered the opinion of the court, in which KEITH, J., joined. CLAY, J. (pp. 11-12), deliver ed a sepa rate concurring opinion.

_________________ OPINION

_________________ J ULIA SMITH

GIB BONS, Cir

cuit Judge . Defen

dantappellant L arry Swafford was charged in a three c ount indictmentin the United

States District

Court for the Eastern Dis trict of Tenne ssee with

(1) posse ssion with i

ntent t o dis tribute fifty g rams or more of methamphetamine , i n violation of 21 U. S.C. § 841(a)(1) and (b)(1)(B ); (2) possession with inten

t to distrib

ute metha mphetamine, in violation of 21 U.S.C

. § 841( a)(1) and (b)(1)(C); and (3) possession of a firearm in furtherance of the dr ug trafficking

crimes charg ed in the f

irst two c ounts, in

violation of 18 U.S.C. § 924(c). After a j ur y trial, Swafford was convicted on al l th ree counts and sentenced to 180 months imprisonme

nt. Swafford brought

this appeal, arguing

that the evidence was in suff

icient to support his conviction for possession of a firea

rm i n furtherance of a drug trafficking offense an d that the district court erred in admitting the testimony of law enforcement officers who t est ified (1) that the amounts of drugs possessed by Swafford were consistent with resale and that d

ealers often ca rry firear ms in connection with their sales activities; and (2) that a name on a busines s card belong ed to a known drug dealer and n umbers on that card corresponded to common drug prices. F or the following reasons, we affirm Swafford’s conviction.No. 03-5468 United Sta tes v. Swa fford 3

1 An off icer tes ti fi ed th at pl ayi ng car ds are commonly used t o scoop methamphetami ne. I.
OnNovem

ber 15, 2001, Detective Jimmy Smith of the Bradley County Sheriff’sOffic e acquired and executed a search warrant for Swafford’s residenc e, a singl e family houseinCleveland, Tennessee. Smith, accompanied by other office rs, arrived at

the resid ence shortly

after 9:10 p.m. When Swafford’s wife answered the door, the officers entered and found Swafford lying

in bed holding an inf

ant. An officer found a loaded .45 caliber semi-automatic pistol within arm’s reach of whe re he had bee

n ly ing. The office r seized th

is pistol, as well as two loaded .22 caliber pistols. The officers did not se ize several rifles and shotguns found in a g un cabinet

. Anofficer

found ten to fifteen garbag e bags in the bed of an old t ruck in a makeshift garag e behind the house. The officers found a Tuppe rw are bowl containing three one-ounc e bags of marijuana and some loose marijuana in one of the garba ge bag s. Also inside the bag were numerous sandwich bagg ies, each of which had two corners cut out. The of ficers also found methamphetamine weighing a total of 66.5 gr ams hiddenina stere o on a wor kbench in the gar age. A shelf on the workb e nch held a

blender which ap

peared to contai

n methamphetamine residue, a set of digital scales, and a playing card. 1 O fficers found $934 in cash in Swafford’s wallet, as well as a lawy er’s business card, o n the b ack of which was written “Tony Perry 280” a

nd “Ron 110.”
II.
Inreviewing 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 rationa l trier of fact could have found the elements of the 4 United Sta tes v. Swa fford No. 03-5468

offense beyond a re asonable doubt.” United States v. Davis , 306 F.3d 398, 408 (6th Cir. 2002). We gene rally 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 a

n objection to the introduction of the evidence at trial, we review the j udge’s decision for plain error. United States v. Cowart , 90 F.3d 154, 157 (6th Cir. 1996). “[B]efore an appella te court ca

n corre ct an er

ror not r aised at trial, th e re must b e (1) error, (2) that i s plain, a nd (3) tha

t affects substantial rights. If a

ll three c onditions a

re met, a n appella te court may then exe rcise its discretion to notice a forfeited
err or, but only

if (4) the error s eriously

affects the fai

r ness , in te gr it y, or public reputation of judicial proce edi ngs.” Johnson v. United States , 520 U.S. 461, 467 (1997) (citations omitted).
III.
Swaffor d first argue s that hisconviction for possession of a firearm in furtherance of a drugoffense was not

supported by s ufficie nt eviden ce. Eig hteen U. S.C. § 924(c ) provide s: Any person w ho, during

and in re lation toa ny crime of violence or drugtr afficking crime . . . for which the person may be prose cuted in a

court of the Unite d States,
uses or carr ies a firearm, or who, in furtherance of any such cri me, posse sses a fir

earm, shall, in addition to the punishmentprovided

for such crimeof violence or drug trafficking crime – (i) be sente

nced to a term o f imprisonme

nt of not le ss than 5 y ears.No. 03-5468 United Sta tes v. Swa fford 5

2 As this court has stated, § 92 4(c) “criminalizes two se parate a nd dist inct off ense s,” usi ng or c arry ing a fi rearm duri ng and in r elation t o a drug offense , a nd possessi ng a fi rearm in furt herance of

a drug off

ense. United States v. Combs , 369 F.3d 9 25, 933 (6th Cir. 2004). Swaff ord was charged with the l atter. 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 th e same premises as a drug

transaction would not, without
a showing of a connection between the tw o, sustain a § 924(c) conviction. In orde r for the possession to be in furtheranceof a drug crime, the firearm must be strate gicall

y located so that it is

quickly and easi l y availab le for use. Other fa ctors tha t may bereleva

nt to a determination of

whether the weapon was posses sed in furtheranceof the cr ime include whether the gun was loaded, the type of we apon, the legality of its possession, the type of drug activity c onducted, and the time and circumstances under which the firear m was found.
265 F.3d 457, 462 (6th Cir . 2001) (c itations o mitted). The courtn oted that

these fa ctors wou

ld help the

court “t o distingu ish possession in furtherance of a crime fr om innocent possession of

a wall- mounted antique or an unloaded hunting rifle locked in a cupboard.” Id

. Inth e pres ent case, Swafford’s .45 caliber pistol was strategically

located so that it was quickly and

easily availab le for use. The gun was found loaded, with its handle pointing up, within

arm’s reach o f the b ed wher e Swaff ord was lying. It can hold a

large number

of rounds , and bec ause it is semiautomatic, it can fire these rounds in rapid succession. AgentFrank Le dford of the Drug Enforceme n t Administration testified that such weapons play a role in drug dis tribut ion, as dealers carry them for protection and intimidation purposes

. Because Swafford had been convicted of a prio r felony , his posse ssion of th e gun wa s unlawfu l. 6 United Sta tes v. Swa fford No. 03-5468

Fi na ll y, the g

un wa s disc over

ed as the o ffic ers exe cuteda s earch warran t looking for drug s, which they

ultimate l y found. Thus, each of

the Mackey

factors points to the conclusion that this weapon was possessed in furtherance of the drug offense s.
Inaddit i on, we have stated that “[a]lthough possession of
a firear m in the same premise s as the drug trafficking activities alone is in sufficie nt to suppor

t a conv iction under section924(c), a jury ca

n reasonably

infer that firearms which
are stra tegi cally locate d so as ‘to provide defense or deterr ence in further ance of the drug traffic king’ a re used i n furtheranceof a drug trafficking c rime.” United States v. Couch , 367 F.3d 557, 561 (6th Cir. 2004). While in Couch the firear ms were i nclose r proximity to the drugs than was the case here, we also relied on te stimony from a law enforcement

officer tha t “at lea st one of t he fire arms discovered

– the Smith

& Wess on handg

un – is commonly associated

with drug trafficking crimes.” Id . The sa me testimony was offered here with reg ard to the .45. Also, while the drugs were not found in the same room as the gun, the garage wher

e they were fo und was e asily

accessible from the bedroom where Swafford a nd the gun were found. Swafford could re ach the garage , which wa s attached to the houseby wooden boar

ds, simply by

walking ten to fifteen feet out the bedroom d

oor. I n addition , the gu

n 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 c onclude t hat a ra tional tri er of fa

ct could have found the elements of the crime bey ond a reasona

ble doubt.
Swafford next argues that the district cour t e rred by admitting Agent Led

ford ’s testimony that the drug s were possessed with the in

tent to dist

ributeand that the guns wereNo. 03-5468 United Sta tes v. Swa fford 7

3 Agent Le dford testified as follows: Q: But based upon the fact ors th at I’ ve just set out for y ou that you know to be the evidence, do you have an opini on as to whether or no t this metha mph etam ine was poss essed with the intent to distribu te it? A: Yes, sir , th at’s what i t was des igned f or, that’ s what

it was doing. Q: W hy, in your opinion, was t hat possessed with t

he intent to distribut e? A: Bec ause you h ave t he amoun t, 21⁄2, maybe – app roxim ately 21⁄2 ounces, you’ve got t he blender where it’ s been chopped up so it can be weig hed out corr ectl y on th e scal es, t hen you hav e t he ba ggi es w it

h t he c orne rs cut

out of t hem. Q: W hat aboutthe pr es ence of t he fi rearms; does that

have a role in d istribution -of-drug activity? A: Yes, sir, it does. Q: W hat is that? A: We see that drug dealers carry f irearms for i ntimidati on and pro tection of their p rod uct. possessed in further a nce of the drug offense s. 3 Swafford contends that Agent Ledf ord testified to an ultima

te issue in the trial, thereby imprope

rly invading the

province of the jury and violating

his Sixth Amen

dment rig

ht to a jury

trial. Becau se Swaffor

d did not object attrial, we review the district court’s decision for plain error. Agent Ledford testified

on behalf of

the government as an expertin the ar

ea of methamphet

amine inv estiga

tions. Properly qualified experttestimony

is gene rally admissible

if it “will assist the trier of fact to understand

the evide nce or to determine a fact

in is sue.” Fed. R. Evid. 702. “Our court
r egular ly allows qua

lified la w enfor cement p ersonne l t o testify on characteristics of criminal ac ti vity, as long as appropr iate cautionary i nstructions are given, since knowl edge of such activity is g enerally be yond the understandingof the av erage lay man.” United States v. Thomas , 99 Fed. A ppx. 665, 668-69 (6th Cir. 2004) (citing 8 United Sta tes v. Swa fford No. 03-5468

4 In the insta nt case , the district c ourt p rop erly cau tioned the jury:

Y ou hav e .

. . hea rd t he t est imon y of

Drug Enf

orce me n t Admini str ati on Spe cial Ag ent Fr ank Ledford. Special Agent Ledford was of

fered as an expe rt in th e area of methamphetamine investiga tions. An expert wi tness has speci al knowledge or ex perie nce tha t allows the witness to giv e an opinion.

You do not have t o accept an expe rt’ s opi nion . I n deci ding how much weight t o give it, you sho uld co nside r the witne ss’s qualifi cations and how he reache d his conclusi ons as well as any oth er fa ctors you thi nk are relevant t o determining whether the expert is a cred ible witness. United States v. Bender , 265 F.3d 464, 472 (6th Cir. 2001)). 4 The recog nized role of police office rs as expe rts in cases such as this one requires that we find no error in the admission of Ag en t Le df

or d’ s t es ti mo ny. Police office

rs are r outinely al lowed to testify that circumstances are consistent with distribution of drugs rather thanpersonal use. See United States v. Jones , 81 Fed. Appx. 45, 48 (6th Cir. 2003) (affirming defendant’s sente nce where police office

r testifie d that the

amount of

drugs f ound, as w ell
as the presence of zip-lock bags and a digital scale, sugge sted that defendant

intended to distribute

the drug s); United States
v. Dillard

, 78 Fed. Appx. 505, 514-15 (6th Cir. 2003 ) (aff irming defendant’s sentence where of ficer testified tha

t amount of drugs was more consistent with distribution than with persona l use); United States v. Quinn , 230 F.3d 862, 866 (6th Cir. 2000) (affirming defendant’ssentence where officer testifie d that amou

nt of drug s was more

consiste nt with distribution than with personal use).
Inaddition, we find that the district c ourt did no t err in allowing Agent

Ledford to testify

that firearms play

a role in drug trafficking activity . We recently he ld admissible a n office r’s testi mony that large-capa

city pistols ar e commonl

y used indrugtrafficking. See Thomas , 99 Fed. Appx. at 669.No. 03-5468 United Sta tes v. Swa fford 9

In that case, we observed that “[m]ost courts have taken a very tolerant view o f the admissibility of expert testimony linking the presence of

firearms to drug trafficking activities.” Id

. (citi ng United States v. Allen , 269 F.3d 842, 845-46 (7t h Cir

. 2001) (up

holding a dmission of

police expert testi

m on y that it is common for drug dealers to keep w eapons to protect themselves and their drugs) and United States v. Jackson , 67 F.3d 1359, 1366 (8th Cir. 1995) (same)). I n addit ion, in United St ates v . Pearce , we held admissible an officer’s testimony that handguns found inside a suspicious building
were typical of g

uns fo und in cr ack houses. 912 F.2d 159, 163 (6 th Ci r. 19 90 ). Si mi la rl y, the district court in th

is case did not plainly err in allowing Agent Ledf

ord to t estif

y that “drugdealers carry

firearms for intimidation and protection of their product.”
Last , Swaffor

d argues that the

district c ourt err

ed in admitting the testimony of Detective Smith who identified a
na me 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 bas edon hearsay

and speculation. Swafford did not object to the admission of this te st im on y, conte mpora neous ly or othe rwise , alth ough later in the trial he objected to the admission of the business card on relevancy grounds. We therefore review f or plain error.
S mith’s testimony reg arding common drug prices he lpe d the jury to understand the e vidence 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 b een bey ond his knowledge, just that they were

consisten t. Fi na ll y, S mi th ’s te st im on y, elicited duri ng c ross examination, tha t Tony Perry, whose
name was written onthe card, was a known drug dea ler was basedo n personal knowledge gleaned fr om pas t investig ations. The admission of Smith’s testimony was not plain error. 10 United Sta tes v. Swa fford No. 03-5468

IV.
For these rea sons, we affirm Swafford’s conviction and sentence.No. 03-5468 United Sta tes v. Swa fford 11

____________________ CONCURRENCE

____________________ CLAY, Circuit Judge, concurring. I con cur w ith the majority’sdisposition but notwith all of its reasoning on the issue of whether Defenda nt possesse d a fire arm “in furtheranceof” a dr

ug traf fic king crime, u

nder 18 U .S.C. § 924(c)( 1)(A). T

his issue is

close r t han the ma

jority sugge sts.
The majority states that “ea ch of the Mackey

factor s points to the conc lusion th at this weapon was posses sed in furtheranceof the d rug offenses.” This is not entirely true. For one, “the time and circumstances under which the firea rm was found,” United

States v. Mackey , 265 F.3d 457, 462 (6th Cir. 2001), provide little evidence of any connection between the fi rearm and drug traffic king. The firearm was not disco v ered

durin g any drug tr ansact ion b ut, ra ther, durin g a police search

of the residence. Another factor in Mackey was the proximity of the firearm to the drug s. Id. at 462. In the instantcase, the facts are either a mbig uous or favor Defendant’s position, inasmuch as the firearm was f ound in the bedroom and the drugs were in the g arage. There were Mackey factors supporting the connection between the firearm and the drug offe nse, such as the gun being loa ded , illega

lly p ossessed , and in a very easily
access ible location. Based upon these

factors it would not be irration al for

a factfinder to sustain a conviction under § 92 4( c) (1 )( A) . B ut th is is a c lo se is su e, an d a ny smal l variation in the facts, diminishing the connection between the gun and the drugs, mig ht have been enough to render the evidence i nsuff

icient to support the conviction. Under very similar facts, in United Sta tes v. Ha ll , 20 F.3d 1084 (10th Cir. 1994), the Tenth C i rcuit ruled that there was insufficient evide nc e to support a conviction under § 924(c), where a police search of a house found drugs in a pa ckage on top of a 12 United Sta tes v. Swa fford No. 03-5468
refrigerator

in the kitchen and a

loadedfirearm on the top shelf of a clos et in an up stairs be droom. Si gn if ic an tl y, in Hall the charges were under

the “during and in relation to” clause of § 924(c)(1)(A), which d em ands less evidence of a connection

to the drug trafficking offe nse than is required by the “in furtheranceof” clause that was charg ed in the instant
case. Mackey , 265 F.3d at 462.
The majority

presents this issue as straig htforwa rd, but it is not. There is sufficient evidence to support a conviction, but only by a close margin.