UNITED STATES OF AMERICA, Plaintiff - Appellee, v. TIAHMO LENELL DRAINE, Defendant - Appellant.
No. 20-6118
United States Court of Appeals, Tenth Circuit
March 1, 2022
MATHESON, PHILLIPS, and MORITZ, Circuit Judges.
PUBLISH. Appeal from the United States District Court for the Western District of Oklahoma (D.C. No. 5:19-CR-00319-F-1). Christopher M. Wolpert, Clerk of Court.
Ashley L. Altshuler, Assistant United States Attorney (Robert J. Troester, Acting United States Attorney, with him on the brief), Oklahoma City, Oklahoma for Plaintiff - Appellee
MATHESON, Circuit Judge.
A jury convicted Tiahmo Lenell Draine of possession with intent to distribute heroin, possession of a firearm as a felon, and possession of a firearm in furtherance of a drug trafficking crime. On appeal, he argues that the district court
- plainly erred, in violation of
Federal Rules of Evidence 701 and702 , by admitting testimony from law enforcement officers based on their specialized training and experience without sua sponte qualifying them as experts; - plainly erred, in violation of
Federal Rule of Evidence 704(b) , by admitting opinion testimony about Mr. Draine‘s mental state—his intent to distribute heroin; and - admitted a 911 call recording (i) without proper authentication, and (ii) in violation of the Confrontation Clause.
Exercising jurisdiction under
I. BACKGROUND
A. Factual History
On July 3, 2019, shortly after midnight, a woman called 911. She told the operator she was driving on Lake Hefner Parkway. She said someone in a gray Chevy pickup truck had shot at her when she was in her car near a 7-Eleven. She further reported that the truck was following her.
Oklahoma City Police Sergeant Bryan Poole received the 911 dispatch while located a half mile from Lake Hefner Parkway. As Sergeant Poole sped toward the caller‘s location, he saw a truck matching the description. He followed the truck until it stopped in front of a house.
Mr. Draine opened the driver‘s side door of the truck and stepped out. He squatted in front of the truck as if he was “taking cover behind the vehicle.” Suppl. ROA, Vol. I at 33. Sergeant Poole could see a passenger in the front seat of the truck. Mr. Draine ignored Sergeant Poole‘s commands to stop moving and put his
After backup officers arrived to help Sergeant Poole detain Mr. Draine and his passenger, they discovered a gun underneath the truck behind the driver‘s side front tire, near where Mr. Draine had been squatting. When asked for identification, Mr. Draine told the officers it was inside his backpack. Sergeant Poole looked in the backpack and found a digital scale, 2.2 grams of heroin, two silicone disks, and three notebooks. One notebook was labeled “OWE $” and had a list of names, dates, and dollar amounts. Mr. Draine was arrested and then released on bond on July 6, 2019.
On July 29, 2019, Oklahoma City Police Sergeant Jonathan Wilson and Officer Blake Lawson stopped Mr. Draine and two passengers for a traffic violation. During a search of Mr. Draine‘s vehicle, Officer Lawson found a duffel bag that contained 9.5 grams of heroin, 3.64 grams of methamphetamine, 5.64 grams of marijuana, and $207 in cash wadded up and stuffed into different pockets. The officers also found a scale, some syringes, small Ziploc baggies, and a glass pipe inside the vehicle.
B. Procedural History
In October 2019, a federal grand jury indicted Mr. Draine on three counts for his conduct on July 3, 2019: Count 1 – possession with intent to distribute heroin, in violation of
At trial, the Government called Sergeant Poole and Officer Lawson to testify.1 The defense called one witness, Oklahoma City Police Officer David Pennington.2
1. Sergeant Poole‘s Testimony
On direct examination, the Government asked Sergeant Poole about his training and experience in his 12 years as a police officer. He confirmed the following facts:
- He was “typically . . . involved in cases involving controlled substances.”
- He had “become familiar with the substance known as heroin” and made roughly 12 heroin arrests.
- He “also received training in the academy” and had “spoken to peers that [he] work[ed] with as specialized training involving the distribution” of heroin.
- “[B]ased on” his “experience speaking with those individuals,” he had “gained some familiarity with how” heroin “is sold at the street level,” and “how it is packaged for sale.”
- He was “familiar . . . with the dosage units of” heroin.
GOVERNMENT: [B]ased on your training and experience, what is a typical dosage unit of heroin?
SERGEANT POOLE: Heroin, they sell in a couple different things. They sell big and smalls. Bigs are usually like .9 to one gram. They‘re usually 70, $80. They sell smalls, which are normally about half a gram. They go for 40 to 50. And then they‘ll sell just kind of single doses, which is normally, you know, .2 grams, those are normally 20, $25.
. . .
GOVERNMENT: So “Owe Money” with a list of names in it, what would that mean?
SERGEANT POOLE: People that owe him money.
GOVERNMENT: So people he fronted drugs to—
SERGEANT POOLE: Yes.
GOVERNMENT: [I]n your training and experience?
SERGEANT POOLE: Yes, sir.
. . .
GOVERNMENT: And how would the digital scale have any association or relation with possessing drugs for distribution?
SERGEANT POOLE: It would—basically, when you go to sell drugs, you‘ll weigh it for the person so they know they‘re getting what they‘re paying for and not getting ripped off, not getting half of what they‘re paying for or anything like that.
. . .
GOVERNMENT: And based on your training and experience, do you have an opinion regarding those [silicone] disks, if they‘re used at all for heroin?
SERGEANT POOLE: Yes, the top one, the multicolor one still had approximately .2 grams of heroin in it. The bottom one that‘s closed just had some residual brown residue that looked just like the residue on the scale.
GOVERNMENT: So placing heroin in those items, does that have any association with possessing with intent to distribute?
. . .
SERGEANT POOLE: If you‘re selling single doses, that‘s exactly what‘s in that top colored silicone disk.
Id. at 49-52, 54.3
2. Officer Lawson‘s Testimony
Officer Lawson testified about the July 29, 2019 traffic stop of Mr. Draine and finding cash and drugs in the vehicle. The court admitted the testimony under
GOVERNMENT: The weights as you weighed the heroin, is that weight a large amount, based on your training and experience, or a small amount?
OFFICER LAWSON: A large amount.
GOVERNMENT: And is it an amount consistent, based on your training and experience, with distribution or sharing or personal use?
OFFICER LAWSON: It would be definitely [sic] a distribution. It would be used for distribution.
. . .
GOVERNMENT: [T]his digital scale, is that utilized in any way associated with drugs?
. . .
OFFICER LAWSON: To weigh whenever you‘re wanting to sell it so you‘re giving the correct amount for what the person buying the drugs, they‘re getting the right amount and they give you the right amount of money.
. . .
GOVERNMENT: Do[] [the three small Ziploc bags] have any significance, based on your training and experience, regarding drug sales—
. . .
OFFICER LAWSON: Commonly, when people are selling drugs, they have them split into those little small
plastic baggies and that‘s where they‘re already preweighed and you can just give those and then take the money.
Id. at 122-25.
3. Officer Pennington‘s Testimony
Mr. Draine called Officer Pennington as a defense witness to impeach the credibility of the likely 911 caller, Brooklinn Nicole Brooks, by asking about her criminal record and drug arrests. Mr. Draine ostensibly also called Officer Pennington to show that Ms. Brooks was once arrested for having a similar amount of heroin compared to the amount he possessed on July 3, 2019, but was not charged with intent to distribute. Officer Pennington knew that Ms. Brooks had been arrested in September 2019 for having two bags of heroin weighing 3.65 grams (including packaging). When asked if she “was charged with a felony possession with intent” or “a misdemeanor simple possession of heroin,” he said the latter. Id. at 164.
On cross-examination, the prosecution asked Officer Pennington, “based on [his] training and experience,” how much heroin was found during Ms. Brooks‘s arrest. Id. at 167-68. He said the net weight (not including packaging) was roughly 1.65 grams. The following exchange then occurred:
GOVERNMENT: And in that case [Ms. Brooks‘s September 2019 arrest], was [sic] there any drug ledgers found or anything to, based on your training and experience, indicate that Ms. Brooklinn Brooks possessed those drugs with intent to distribute?
OFFICER PENNINGTON: Not to my knowledge.
GOVERNMENT: So there‘s a distinction there between [the] possession with intent charge and simple possession; is that fair?
OFFICER PENNINGTON: That‘s fair.
Id. at 168. The Government then showed the page inside the “OWE $” notebook, with names, dollar amounts, and dates listed, leading to the following exchange:
GOVERNMENT: Based on your training and experience, what do you believe this to be, based on the totality of the circumstances in this case and reasonable inferences based on the evidence?
OFFICER PENNINGTON: It‘s a list of names and dollar amounts. I assume customers who had either been fronted heroin or sold heroin.
GOVERNMENT: And in fact, the title of that composition book is “Owe $,” is that correct?
OFFICER PENNINGTON: That‘s correct.
GOVERNMENT: What do you refer that to [sic] as, based on your training and experience?
OFFICER PENNINGTON: I would say that that was drugs that had been fronted and this is money that is owed for those drugs.
GOVERNMENT: Okay. And . . . based on your training and experience, are these nine individuals listed drug customers, based on reasonable inferences and the evidence?
OFFICER PENNINGTON: Yes.
Id. at 169.
* * * *
II. DISCUSSION
The following discussion concludes that the district court did not
- plainly err, in violation of
Federal Rules of Evidence 701 and702 , by admitting law enforcement officer opinion testimony without sua sponte qualifying the officers as experts. Mr. Draine cannot show an error was plain; affected his substantial rights; or seriously affected the fairness, integrity, or public reputation of judicial proceedings. - plainly err, in violation of
Rule 704(b) , by admitting testimony from Officer Lawson and Officer Pennington because neither witness opined on Mr. Draine‘s mental state. - (i) abuse its discretion in ruling that the Government authenticated the 911 call recording, or (ii) violate the Confrontation Clause by admitting the recording.
A. Rule 702 Expert Opinion Testimony
The first issue concerns whether it was plain error for the law enforcement witnesses to provide expert opinion testimony without the district court first determining whether they were qualified to do so under
1. Standard of Review
When “the defendant did not make a contemporaneous objection to the admission of testimony” and thereby forfeits the issue, we review an appellate challenge to the evidence for plain error. United States v. Moya, 5 F.4th 1168, 1188 (10th Cir. 2021) (quotations omitted), cert. denied, 142 S. Ct. 385 (2021). Under this
2. Legal Background
In drug prosecutions, opinion testimony from law enforcement officers may be based on the case investigation or on the officer‘s training and experience. See United States v. Cushing, 10 F.4th 1055, 1079-80 (10th Cir. 2021), cert. denied, 142 S. Ct. 813 (2022). Although the line is not always clear, “a law-enforcement officer‘s testimony based on knowledge derived from the investigation of the case at hand is typically regarded as lay testimony” under
In this case, the parties agree that the officers’ challenged testimony was “subject to the admissibility requirements for expert testimony under Rule 702.”
If a witness is not testifying as an expert, testimony in the form of an opinion is limited to one that is:
(a) rationally based on the witness‘s perception;
(b) helpful to clearly understanding the witness‘s testimony or to determining a fact in issue; and
(c) not based on scientific, technical, or other specialized knowledge within the scope of Rule 702.
A witness who is qualified as an expert by knowledge, skill, experience, training, or education may testify in the form of an opinion or otherwise if:
(a) the expert‘s scientific, technical, or other specialized knowledge will help the trier of fact to understand the evidence or to determine a fact in issue;
(b) the testimony is based on sufficient facts or data;
(c) the testimony is the product of reliable principles and methods; and
(d) the expert has reliably applied the principles and methods to the facts of the case.
Section (c) was added to
government intends to use under Rules 702, 703, or 705 of the Federal Rules of Evidence during its case-in-chief at trial. . . . The summary provided under this subparagraph must describe the witness‘s opinions, the bases and reasons for those opinions, and the witness‘s qualifications.
We affirm because Mr. Draine cannot meet his burden under the “rigorous” and “demanding” plain error standard. United States v. Rosales-Miranda, 755 F.3d 1253, 1258 (10th Cir. 2014) (quotations omitted).
a. Prong one
We assume without deciding that the district court erred by not sua sponte determining whether Sergeant Poole, Officer Lawson, and Officer Pennington were qualified to present expert testimony under
b. Prong two
Mr. Draine has not established any error was “plain—that is to say, clear or obvious.” Rosales-Mireles v. United States, 138 S. Ct. 1897, 1904 (2018). “To be obvious, an error must be contrary to well-settled law.” United States v. Koch, 978 F.3d 719, 726 (10th Cir. 2020) (quotations omitted). “In general, for an error to be contrary to well-settled law, either the Supreme Court or this court must have addressed the issue.” Id. (quotations omitted).
In McDonald, 933 F.2d at 1522-23 & n.2, we upheld the district court‘s admission of expert law enforcement testimony even though “the trial court never formally accepted the police officer as an expert witness.” In Muldrow, 19 F.3d at 1338, we again upheld the district court‘s admission of expert law enforcement testimony, and did not address the argument Mr. Draine makes here—that the officers’ testimony should have been excluded because it was expert testimony masquerading as lay opinion. And in Banks, 262 F. App‘x at 907, which is unpublished and non-precedential, the defendant, unlike Mr. Draine, objected at trial.
In fact, we have not provided clear guidance as to whether district courts should address sua sponte a law enforcement officer‘s qualifications to provide expert testimony under
Mr. Draine has not shown how any error affected his substantial rights—that is, “a reasonable probability that, but for the error, the outcome of the proceeding would have been different.” Rosales-Mireles, 138 S. Ct. at 1904-05 (quotations omitted).
In particular, he has not shown that, had he objected or had the district court addressed sua sponte Sergeant Poole‘s or Officer Lawson‘s qualifications, they likely would have been found unqualified under
d. Prong four
Finally, Mr. Draine has not met his “burden to persuade the court that the error seriously affected the fairness, integrity or public reputation of judicial proceedings.” Rosales-Mireles, 138 S. Ct. at 1909 n.4 (quotations and alterations omitted). “[A]ny exercise of discretion at the fourth prong . . . inherently requires a case-specific and fact-intensive inquiry.” Id. at 1909 (quotations omitted); see also United States v. Bustamante-Conchas, 850 F.3d 1130, 1141 (10th Cir. 2017).
Here, as noted above, “[d]espite the procedural shortcomings he alleges, Mr. [Draine] was convicted based on the type of opinion testimony that courts routinely admit from officers with the proper qualifications.” Cristerna-Gonzalez, 962 F.3d at 1269 (Matheson, J., concurring). “In drug cases, expert testimony is often admitted to help the jury understand drug terminology” and concepts. Marquez, 898
* * * *
In sum, Mr. Draine has not shown the district court plainly erred.9
Mr. Draine argues that Officer Lawson‘s and Officer Pennington‘s testimony violated
1. Legal Background
“As interpreted,
For example, “[a]n expert on illegal drug activities may testify that the amount and packaging of drugs found in the defendant‘s possession by the police are consistent with the distribution of drugs for street use rather than with holding the drugs for personal use.” 4 Weinstein & Berger, Weinstein‘s Federal Evidence § 704.06[2][d], at 704-28. “What is proscribed is questioning that produces responses suggesting some special knowledge of the defendant‘s mental processes.” Id. § 704.06[2][d], at 704-28-29.
2. Analysis
Neither Officer Lawson nor Officer Pennington gave testimony that violated
a. Officer Lawson‘s testimony
Mr. Draine argues that Officer Lawson‘s testimony violated
None of this shows that Officer Lawson opined on Mr. Draine‘s intent to distribute. Officer Lawson testified that the amount of heroin indicated distribution. He never made “a conclusion as to [Mr. Draine‘s] actual mental state,” Goodman, 633 F.3d at 970, and “d[id] not profess to know [his] intent,” Schneider, 704 F.3d at 1294. And because Officer Lawson testified regarding the amount of heroin found in Mr. Draine‘s possession on July 29, his testimony was further attenuated from any conclusion as to whether Mr. Draine had “a mental state or condition that constitutes an element of the crime charged” on July 3.
b. Officer Pennington‘s testimony
Mr. Draine argues Officer Pennington‘s cross-examination testimony established that while Ms. Brooks did not possess drugs with the intent to distribute, “Mr. Draine surely did,” and “[t]he message was unmistakable,” for example, because Officer Pennington referred to the “[O]we $” notebook as listing “nine . . . drug customers.” Aplt. Br. at 22. Here, again, Officer Pennington never addressed “the last step in the inferential process—a conclusion as to [Mr. Draine‘s] actual
C. 911 Call Recording
Mr. Draine challenges the district court‘s admission of the 911 call recording. First, he argues the court admitted the recording without a sufficient foundation “that it was the particular 911 call placed in this case.” Aplt. Br. at 28. Second, he argues admission of the recording violated the Confrontation Clause. Unlike the expert testimony issues discussed above, Mr. Draine raised these objections before the district court. We hold the district court did not err on either ground.
At trial, the jury heard the full recording of a woman‘s 911 call on July 3, 2019. Here is an excerpt:
CALLER: There‘s someone following me, and I don‘t know what—I‘m going so fast down the highway. They shot at me. I don‘t know what‘s going on.
OPERATOR: Where are you at?
CALLER: I‘m on I-44, uh, northbound. It‘s a gray truck. Uh, I don‘t know. Black male, probably 40s, uh, with a white girl. I don‘t know. I just, I don‘t know. I don‘t know. Something transpired at a 7-Eleven, and I pulled out, and I realized they were behind me. And then he shot at me. And I don‘t know. I don‘t know.
. . .
OPERATOR: They‘re still right behind you?
CALLER: Yes. Oh my god. He‘s next to me. He‘s next to me. He‘s next to me. He‘s next to me. I‘m on the phone with the police, b--tch. Oh my god [inaudible].
OPERATOR: Where did this happen at?
CALLER: He‘s going to kill me. He‘s going to kill me.
OPERATOR: Where did this happen at?
CALLER: 7-Eleven on [inaudible]. I don‘t know. I‘m so sorry. Oh my god. I‘m so frazzled. I‘m so sorry. I‘m so sorry.
. . .
OPERATOR: Okay, what street are you passing now?
CALLER: I‘m not passing anything. I‘m about to be passing [inaudible]. And I thought I lost him earlier. But then he caught up to me. Please [inaudible]. Let me keep driving. Oh my god. Oh my god. I‘m not stopping. I‘m not stopping. He fell back. I think he realized I was on the phone with the police. Because I flashed my phone in the window. Woah. Oh my god, a cardboard box just hit my f--king car. I‘m sorry.
OPERATOR: A car just what?
CALLER: A cardboard box just came flying at my windshield.
. . .
CALLER: Uh, they‘re a little bit further back. I know this is dangerous, but I turned my lights off. I‘m terrified.
Suppl. ROA, Doc. 10827503 (“Government‘s Ex. #1“), at 00:13-3:12.
a. Standard of review
“When deciding whether evidence was properly admitted or excluded, we use an abuse of discretion standard of review, defined in this circuit as an arbitrary, capricious, whimsical, or manifestly unreasonable judgment.” United States v. Hernandez-Herrera, 952 F.2d 342, 343 (10th Cir. 1991) (quotations omitted); see also United States v. Willis, 826 F.3d 1265, 1270 (10th Cir. 2016). Even if “the government could have laid the foundation for [the exhibit] in a more thorough manner,” we will not reverse if “it presented sufficient circumstantial evidence to place the admission of [the exhibit] within the broad discretion of the trial court.” Hernandez-Herrera, 952 F.2d at 345.
b. Legal background
Under
“[t]estimony that an item is what it is claimed to be,” Fed. R. Evid. 901(b)(1) ;- “[f]or a telephone conversation, evidence that a call was made to the number assigned at the time to . . . a particular person . . . or a particular business,”
Fed. R. Evid. 901(b)(6) ; and - for public records, “[e]vidence that . . . a document was recorded . . . in a public office as authorized by law,”
Fed. R. Evid. 901(b)(7)(A) .
c. Additional procedural history
At a pre-trial hearing, the court said the 911 call had “to be connected up with this defendant.” Suppl. ROA, Vol. IV at 38. Mr. Draine responded that “at this time we‘re not making that concession.” Id. at 39. The Government then proffered that the connection
would come from Traci Clark, who would lay the foundation that [the] call came in on July 3rd at 12:21 a.m. in the morning. Sergeant Poole responds to that call. He‘s a half hour away from the location of the call coming in, and that would put that call as far as the relevance in connection to this case, Your Honor.
Id.13
Mr. Draine offered a limited stipulation:
[I]f the Court does rule that the 911 call comes in, we will stipulate that the custodian of records from OCPD, Traci Clark, would testify to her routine duties and that they keep on file 911 calls and that she has provided this call. That‘s the extent of our stipulation with that—it‘s simply to avoid having the custodian of records come in and testify to possessing and providing the call.
At trial, Sergeant Poole provided foundational testimony. He testified that on July 3, 2019, at 12:23 a.m., he received a notification from the 911 dispatch center. Suppl. ROA, Vol. I at 25. He said dispatch “advised that a female caller had called in stating she was driving northbound on Lake Hefner Parkway, [and] was being followed by a gray Chevy pickup who was firing rounds at her.” Id. As Sergeant Poole was driving “northbound on Lake Hefner Parkway trying to catch up to the calling party,” he saw “a pickup truck matching that description” “headed northbound.” Id. at 26. The court overruled Mr. Draine‘s foundational objection and admitted the call recording. Id. at 27.
d. Analysis
The district court did not abuse its discretion in ruling that the Government authenticated the 911 call based on the combination of Mr. Draine‘s pretrial stipulation and Sergeant Poole‘s foundational testimony.
Before trial, Mr. Draine stipulated to the authentication of the recording as a 911 call that came in on July 3, 2019, at 12:21 a.m. The Government proffered that “Traci Clark . . . would lay the foundation that [the] call came in on July 3[] at 12:21 a.m.” Suppl. ROA, Vol. IV at 39. Then Mr. Draine “stipulate[d] that . . . Traci Clark, would testify . . . that she provided this call.” Id. at 40 (emphasis added). Mr. Draine‘s statements show he stipulated to the date and time of the 911 call.
2. Confrontation Clause
The district court ruled that the 911 call recording did not violate the Confrontation Clause because the statements in the call were not testimonial. Applying a de novo standard of review, United States v. Edwards, 782 F.3d 554, 560 (10th Cir. 2015), we agree.
a. Legal background
The Sixth Amendment‘s Confrontation Clause provides that “[i]n all criminal prosecutions, the accused shall enjoy the right . . . to be confronted with the witnesses against him.” U.S. Const. amend. VI. Only testimonial statements “cause the declarant to be a ‘witness’ within the meaning of the Confrontation Clause.” Davis v. Washington, 547 U.S. 813, 821 (2006). The clause thus prohibits “admission of testimonial statements of a witness who did not appear at trial unless he was unavailable to testify, and the defendant had had a prior opportunity for cross-examination.” Hemphill v. New York, 142 S. Ct. 681, 690 (2022) (quoting Crawford v. Washington, 541 U.S. 36, 53-54 (2004)).
b. Analysis
The district court‘s admission of the 911 call recording did not violate the Confrontation Clause because, under Davis, the statements in the call were not testimonial.
First, the caller “was speaking about events as they were actually happening,“—the description and location of a truck following her after a shooting—“rather than describing past events.” Davis, 547 U.S. at 827 (quotations and alterations omitted). Although the shooting near the 7-Eleven had already occurred, it did not “t[ake] place hours” ago. Id.
Second, “any reasonable listener would recognize that [the declarant] . . . was facing an ongoing emergency” because her “call was plainly a call for help against
Third, “viewed objectively, . . . the elicited statements were necessary to be able to resolve the present emergency.” Davis, 547 U.S. at 827. The operator and caller discussed the truck‘s changing location. And their discussion of the shooting related to the car chase and ongoing emergency.
Fourth, the call was not “formal.” Id. “[A]nswers were provided over the phone,” during a car chase late at night, and the declarant was not “responding calmly.” Id. The admission of the 911 recording did not violate the Confrontation Clause and the district court did not err.14
III. CONCLUSION
We affirm Mr. Draine‘s convictions.