UNITED STATES of America, Plaintiff-Appellee, v. Antonio D. JONES, Defendant-Appellant.
No. 05-5010
United States Court of Appeals, Sixth Circuit.
Oct. 11, 2006.
467 F.3d 541
Before: BOGGS, Chief Judge; COLE, Circuit Judge; and ROSEN, District Judge.*
* The Honorable Gerald E. Rosen, United States District Judge for the Eastern District of Michigan, sitting by designation.
Because we lack jurisdiction over the appeal of the modification order, it is dismissed.
C.
For the reasons previously stated, we affirm the district court‘s denial of the preliminary injunction and dismiss the remaining appeals.
Thomas J. Drake, Jr., Craig & Drake, Nashville, TN, for Defendant-Appellant.
Antonio D. Jones, Inez, KY, pro se.
PER CURIAM.
Following a jury trial in the United States District Court for the Middle District of Tennessee, defendant-appellant Antonio Jones was convicted of: 1) possession with intent to distribute 50 or more grams of crack and some amount of cocaine, in violation of
I
On June 17, 2002, Detective John Donegan of the Metro Nashville Police Department Vice Division swore an affidavit for a search warrant to search for controlled substances and related evidence at 3288 Niagara Court in Nashville. In the affidavit, Donegan stated that a confidential informant (“C.I.“) had informed him that the C.I. could purchase crack or powder cocaine from “Antonio.” The C.I. said that Antonio would usually make deliveries near a particular location (Stewart‘s Ferry Pike and I-40), would make several deliveries each day, and would always carry a gun. The C.I. described vehicles that Antonio would drive during the deals. The C.I. stated that Antonio lived at 3288 Niag
Donegan further swore that electric utility records showed that Antonio Jones maintained electric service at 3288 Niagara, that periodic surveillance showed that several of the vehicles the C.I. had described were registered to Jones and were present at 3288 Niagara, and that Jones had been convicted of felony drug and weapon charges.
At the instruction of Donegan, the C.I. made a controlled, observed drug purchase from Jones at a market on June 5, 2002. Jones drove a gray Chevrolet Lumina that the C.I. had previously described as one of “Antonio‘s” delivery cars. The police lost Jones‘s trail after the deal.
The C.I. made a second controlled, observed drug purchase from Jones, at Stewart‘s Ferry Pike and I-40, on June 14, 2002. A surveillance officer informed Donegan that Jones left from 3288 Niagara before the deal, driving a blue Ford registered to Jones. After the deal with the C.I., Jones was observed making what appeared to be another drug deal. Jones was then followed to 655 Joseph Avenue, where he parked the Ford next to the Lumina he had used during the first controlled purchase. Jones entered 655 Joseph and exited shortly thereafter with a male and a female and drove off in the blue Ford. Later that day the blue Ford was parked at 655 Joseph and the gray Lumina was gone.
Donegan further stated in the affidavit that based on his training and experience (seventeen years as a police officer, thirteen as a narcotics investigator), he had learned that drug dealers often keep money, transaction records, and other materials related to their drug dealing in secure locations such as residences, and that they often keep weapons in such locations for protection.
A Tennessee state court judge issued the search warrant for 3288 Niagara on June 17, 2002.
On June 19, 2002, Donegan swore a separate affidavit for a second search warrant, this one to search 655 Joseph Avenue. In that affidavit he reiterated the above account from his June 17, 2002 affidavit for the 6288 Niagara search warrant. He added that records showed that Tameka Johnson maintained electric service at 655 Joseph. He further added that on June 17, 2002, the C.I. arranged a third controlled, observed drug purchase from Jones. On that occasion, surveillance showed Jones and one of his vehicles at 655 Joseph. Jones told the C.I. to meet him (at the same location as the second controlled buy) in thirty minutes. Shortly after that conversation Jones and another male left 655 Joseph in the blue Ford. Jones drove to 3288 Niagara, dropped off the passenger, went inside for a brief time, then exited and drove to meet the C.I. for the buy. Later that day the blue Ford was observed at 655 Joseph; Jones thereafter drove off in it.
In the second affidavit, Donegan also stated that surveillance of 655 Joseph on June 18, 2002 showed “a large amount of foot traffic going in and out in very short periods of time. At one point your affiant counted 9 peopled [sic] exiting the apartment in less than a ten minute period of time.” The foot traffic continued until midnight. Jones came and went several times in both the blue Ford and the gray Chevrolet Lumina, and at one point was observed with another male driving to a location to make what appeared to be a drug deal with a female. During the same period of surveillance a woman believed to
A Tennessee state court judge issued the search warrant for 655 Joseph on June 19, 2002.
Having obtained the search warrants for 3288 Niagara and 655 Joseph, the Nashville Police arranged another—the fourth—controlled, observed drug purchase by the C.I. from Jones on June 19, 2002. Jones told the C.I. to meet him at a gas station. Jones left from 655 Joseph in the blue Ford, which was driven by a female. Jones sat in the front passenger seat; Jones and the female were accompanied by another male. Jones apparently engaged in a drug transaction with an individual in the same location immediately before making the deal with the C.I. The police stopped the vehicle about two or three miles from the scene of the deals. After the occupants got out of the vehicle, Jones was advised of his rights.
The police recovered $655 from Jones, including $250 in marked money from the controlled drug purchase that had just taken place. The police took all of the subjects—Tameka Johnson was the female—back to 655 Joseph to execute the search warrant for that address. There they found about 8.5 grams of cocaine, an electronic scale, and two boxes of sandwich baggies.
The police then took Jones and his companions to 3288 Niagara, and executed the search warrant for that address. The police found evidence that a child resided there. At 3288 Niagara, they also found over sixty grams of crack, about half a kilogram of cocaine, marijuana, approximately $11,000 in cash, a Luger 9-mm semiautomatic pistol, a Llama .380 semiautomatic pistol, a chrome-plated revolver, a Ruger .44-caliber Magnum revolver, an AK 47-type rifle, a shotgun, boxes of ammunition, a holster, a bullet-proof vest, electronic scales, baggies, what appeared to Donegan to be drug transaction ledgers, a bottle of Vitablend, commonly used as a cutting agent for cocaine (according to Donegan), photographs on display depicting Jones with other men and with Candace Shelton (some of which show Jones possessing firearms found during the search), women‘s clothing, men‘s clothing (some of which matched clothing worn by Jones in the photographs), and paperwork of Jones.
The crack, Ruger 9-mm pistol, Llama .380 pistol, Vitablend, drug transaction ledgers, electronic scales, and baggies were all found in a dresser in the master bedroom; the chrome-plated revolver and bullet-proof vest were found in a closet in the master bedroom; the Ruger .44 Magnum, which was loaded, was found under a couch cushion in the den; the shotgun was under a mattress in the master bedroom; the cocaine was in a safe along with cash, which was near the dresser; the marijuana was in the dresser, in the safe, and in a small refrigerator in the master bedroom.
Officer Jesse Burchwell testified that he read Miranda rights to Jones, using a printed form, after they arrived at 3288 Niagara. That was the second time Jones had been given Miranda warnings that day; the first had occurred at his arrest. Jones waived his rights in writing on the form. After waiving his Miranda rights, Jones said that he would cooperate with law enforcement, went into considerable
At one point during the execution of the search warrant at 3288 Niagara, Donegan asked Jones how much money was in the safe, “because there was a pretty good chunk there,” and Jones responded that the amount was between eleven and twelve thousand dollars. Donegan recalled at trial that the actual amount totaled $11,015. Donegan also asked Jones about a large bag of white powder that did not smell like cocaine, which Jones stated consisted only of cut, not of cocaine.
Jones was tried before a jury in the United States District Court for the Middle District of Tennessee and found guilty on all three counts. Jones, through appellate counsel, raises the six arguments addressed in Section II. Jones raises six additional issues in a pro se brief, which are addressed in Section III.
II
A. Probable cause for issuance of the search warrants
Jones argued in a motion to suppress evidence that the search warrants for 3288 Niagara Court and 655 Joseph Avenue were unsupported by probable cause. After a hearing, the district court denied the motion. Jones reiterates his challenge on appeal.
In reviewing the denial of a motion to suppress, we review the district court‘s factual findings for clear error and its legal conclusions de novo. United States v. Carpenter, 360 F.3d 591, 594 (6th Cir.2004) (en banc) (citation omitted). We view the evidence “in a light most likely to support the decision of the district court.” United States v. Frazier, 423 F.3d 526, 531 (6th Cir.2005).
This court has stated that “[i]n determining whether an affidavit establishes probable cause, ‘[t]he task of the issuing magistrate is simply to make a practical, common-sense decision whether, given all the circumstances set forth in the affidavit before him, . . . there is a fair probability that contraband or evidence of a crime will be found in a particular place.‘” Carpenter, 360 F.3d at 594 (quoting Illinois v. Gates, 462 U.S. 213, 238-39, 103 S.Ct. 2317, 76 L.Ed.2d 527 (1983)). “To justify a search,” we continued, “‘the circumstances must indicate why evidence of illegal activity will be found in a particular place.’ There must, in other words, be a ‘nexus between the place to be searched and the evidence sought.‘” Carpenter, 360 F.3d at 594 (quoting United States v. Van Shutters, 163 F.3d 331, 336-37 (6th Cir.1998)).
We find that a substantial basis existed for the Tennessee state judge to conclude that probable cause existed. See Carpenter, 360 F.3d at 594 (“the duty of a reviewing court is simply to ensure that the magistrate had a substantial basis for concluding that probable cause existed.“). Donegan‘s affidavits showed a nexus between the two addresses and evidence of Jones‘s drug trafficking.
As reported in Donegan‘s affidavit regarding 3288 Niagara, a C.I. stated that a drug dealer named Antonio lived at 3288 Niagara and that the C.I. had purchased drugs from Antonio at that location. The C.I. described vehicles that Antonio used in his deals. The affidavit illustrated that the C.I.‘s hearsay information was corrob
Furthermore, and more importantly, the affidavit included details of two controlled drug buys between the C.I. and Jones that were arranged by the police, before at least one of which (on June 14, 2002) the police observed Jones leaving directly from 3288 Niagara, and during both of which the police noted that Jones drove a vehicle that was described by the C.I. and that they had seen parked at 3288 Niagara. That information, particularly in combination with Donegan‘s statements that in his experience it is often the case that drug dealers store contraband and other evidence in their residences or in locations that they control but that are titled in the name of others, clearly links Jones‘s drug dealing to the 3288 Niagara location, and creates more than a “fair probability” that evidence of such drug dealing would be found at 3288 Niagara.
Regarding the warrant for 655 Joseph, the affidavit for that address averred that Jones traveled to 655 Joseph after the second controlled drug buy. Surveillance showed both of the relevant cars at 655 Joseph at various times. Before the third controlled drug purchase, Jones left from 655 Joseph with another male and stopped briefly at 3288 Niagara before traveling to the location of the deal. Later that day Jones was again seen at 655 Joseph and drove away from it in the blue Ford. The day after the third observed drug deal, surveillance of 655 Joseph showed “a large amount of foot traffic going in and out in very short periods of time.” The foot traffic continued until midnight. Jones came and went several times in both the blue Ford and the gray Chevrolet Lumina, and at one point was observed with another male driving to a location to make what appeared to be a drug deal with a female. The next day, both the blue Ford and the gray Lumina were parked in front of 655 Joseph during the early morning hours, “when it would be expected for Mr. Jones to be asleep.” The affidavit for 655 Joseph also contained the language regarding Donegan‘s expertise and the likelihood of drug dealers keeping relevant evidence in their residences or in residences titled to others, but which the dealers actually controlled. Again, the information in the affidavit for 655 Joseph links Jones‘s drug dealing to the location, and creates a fair probability that evidence of that drug dealing would be found there.
B. Voluntariness of Jones‘s statements
In his motion to suppress, Jones also contended that his statements following his arrest at 3288 Niagara should have been suppressed as the products of coercion, and because he did not voluntarily waive his rights under Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966).
In assessing whether a defendant‘s statements were coerced, the test is whether, considering the totality of the circumstances, “the conduct of law enforcement officials is such as to overbear the accused‘s will to resist.” Ledbetter v. Edwards, 35 F.3d 1062, 1067 (6th Cir.1994). At the suppression hearing, Jones stated that his statements at 3288 Niagara were
The government bears the burden of proving, by a preponderance of the evidence, that the defendant‘s waiver of his Miranda rights was knowing and voluntary. The test for knowing and voluntary waiver of Miranda rights is essentially the same as that for whether statements were coerced. United States v. Redditt, 87 Fed. Appx. 440, 445 (6th Cir.2003) (citing Colorado v. Connelly, 479 U.S. 157, 168-70, 107 S.Ct. 515, 93 L.Ed.2d 473 (1986)). Jones initialed and signed a waiver of his Miranda rights dated June 19, 2002, the date of the arrest and searches, thus contradicting his account that he signed it the day after his arrest. Officer Burchwell testified at the suppression hearing that he read the Miranda waiver to Jones at 3288 Niagara, that Jones understood the rights and signed the waiver, and that he (Burchwell) used neither physical nor psychological threats to coerce Jones. The district court ruled that Jones‘s statements were made after a knowing and voluntary waiver of his rights. There is no reason to reverse that ruling.
C. Sentencing enhancements for prior convictions
1. Statutory sentencing enhancement pursuant to 21 U.S.C. § 841(b)(1)(A)
Jones argued unsuccessfully before the district court, and asserts on appeal, that he did not have two prior convictions for a felony drug offense because his “two prior convictions are actually the same course of conduct and should only be treated as one conviction for sentencing purposes.”
We assume, without deciding, that we review the district court‘s decision to count Jones‘s prior convictions as separate predicate offenses for purposes of
This circuit has adopted the “separate criminal episodes” test for determining whether a defendant‘s prior felony drug convictions qualify as discrete predicate convictions to enhance the sentence pursuant to
In United States v. Goins, 53 Fed. Appx. 724, 729-30 (6th Cir.2002), we held that two prior felony convictions for drug sales that took place six weeks apart, even though they involved the same government informant and the defendant was convicted of both felonies on the same day, amounted to separate episodes and could be used as two predicate convictions for a mandatory life sentence under
Other circuits applying the “separate episodes” test have held that prior convictions for three drug offenses committed within minutes of each other were distinct, and countable as separate predicate offenses for a mandatory life sentence under
In this case, the government gave notice of three prior Tennessee state felony drug convictions (only two of which are needed) as predicate offenses for a mandatory minimum life sentence. Following a plea deal, Jones was convicted on October 22, 2000 of the following drug crimes: selling 26 grams or more of cocaine, offense date February 15, 2000; possession with intent to deliver/sell less than .5 grams of co
The three convictions arose from separate episodes, and thus each can be used as one of the two predicate drug felonies necessary to enhance Jones‘s sentence on his federal drug charge to a mandatory life sentence. The prior drug crimes occurred on separate dates—February 15, 19, and 24, 2000. Although the time between any two of those crimes was not as great as the six weeks in Goins, Jones‘s previous drug crimes are much further apart in time than the transactions in Green (three sales to different buyers within minutes of each other) and Gray (two sales, one day apart, to the same informant). That judgment was entered against Jones on the same day by the same court and, apparently, with concurrent sentences, does not thereby make the three crimes part of the same episode. See Anderson, 76 F.3d at 691; Gray, 152 F.3d at 820-22 (prior convictions for two felony offenses for drug sales of which the defendant was convicted in the same trial and for which he received concurrent sentences amounted to separate episodes). Each of the three previous state drug felonies (and only two are needed) listed by the government constitute a separate episode, and thus qualify as predicate offenses for the purposes of enhancing Jones‘s sentence for possession of over fifty grams of crack to mandatory life imprisonment.
Jones argues that whether the prior felony drug convictions are distinct for the purposes of determining his statutory minimum sentence should be decided on the basis of various Sentencing Guideline provisions regarding the relatedness of crimes. But this inquiry is not one based on the Guidelines; it is based on
2. Sentencing enhancements under the Guidelines
Jones also challenges “being a career offender and armed career offender,” presumably under the Guidelines, on the grounds that his “prior convictions were the same course of conduct and should be treated as one conviction.” This argument is irrelevant, as Jones received a statutory mandatory minimum sentence of life imprisonment on count 1.
D. Eighth Amendment challenge to mandatory life imprisonment
Jones argues that his enhanced mandatory minimum sentence of life imprisonment, pursuant to
The Supreme Court upheld against an Eighth Amendment challenge the mandatory sentencing, under Michigan statute, to life imprisonment of a first-time felon who was convicted for possessing 672 grams of cocaine. Harmelin v. Michigan, 501 U.S. 957, 961, 994, 1002, 111 S.Ct. 2680, 115 L.Ed.2d 836 (1991). A plurality of the Harmelin Court stated that “the Cruel and Unusual Punishments Clause encompasses a narrow proportionality principle” that applies to noncapital sentences. 501 U.S. at 997 (Kennedy, J., concurring). It held that the Eighth Amendment “forbids only extreme sentences that are ‘grossly disproportionate’ to the crime.” Id. at 1001. The Harmelin Court added that “[w]e have never invalidated a penalty mandated by a legislature based only on the length of sentence, and, especially with a crime as severe as this one, we should do so only in the most extreme circumstances.” Id. at 1006-07.
This court has followed the Harmelin plurality‘s narrow proportionality principle. United States v. Hill, 30 F.3d 48, 50-51 (6th Cir.1994). In Hill, we upheld against an Eighth Amendment challenge the imposition of a mandatory life sentence, pursuant to
In this case, Jones was convicted of possession with intent to distribute over 50 grams of crack. (Police also found about a half a kilogram of cocaine and some quantity of marijuana at 3288 Niagara.) Under the above-cited precedents, it is clear that Jones‘s sentence does not violate the Eighth Amendment.
E. Denial of downward departure
Jones argues that the district court erred in denying his motion for downward departure. Jones moved for downward departure under the Sentencing Guidelines because of allegedly harsh incarceration in the Robertson County Jail and because, he asserts, his “criminal history calculation overstates the seriousness of his criminal history.” At the sentencing hearing, the district court heard evidence related to the motion for downward departure, including testimony from Jones regarding his confinement at the county jail. The district court denied the motion.
We have held that United States v. Booker, 543 U.S. 220, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005), did not affect our well-established rule that we “shall not review decisions of a district court not to depart downward unless the record reflects that the district court was not aware of or did not understand its discretion to make such a departure.” United States v. Puckett, 422 F.3d 340, 344-46 (6th Cir.2005) (internal quotation marks and citation omitted). We added that “the district court need not explicitly state that it is aware of its discretionary authority to depart downward.” Id. at 346 (citing United States v. Lucas, 357 F.3d 599, 609-10 (6th Cir.2004)).2
Nothing suggests that the district court was unaware of or did not understand its discretion to make a downward departure under the Guidelines. Indeed, the fact that it heard evidence on, e.g., the conditions of Jones‘s imprisonment at the county jail suggests that it did understand its discretion.
Furthermore, Jones received the statutory minimum sentence on counts 1 and 2. Under
F. Whether remand is required under Booker
Jones argues that he is entitled to a remand for resentencing under Booker because the Sentencing Guidelines—he points in particular to U.S.S.G. § 5G1.1(c)(2)—are advisory after Booker.3
We have held that when the defendant has been sentenced to the statutory mandatory minimum, Booker is not implicated. United States v. Smith, 419 F.3d 521, 531-32 (6th Cir.2005); United States v. Smith, 178 Fed. Appx. 519, 521 (6th Cir.2006); United States v. Johnson, 129 Fed. Appx. 966, 971-72 (6th Cir.2005) (collecting cases from other circuits). Jones was sentenced on count 1 to mandatory life imprisonment, based on the combination of 1) the jury‘s finding that he had possessed with intent to distribute more than 50 grams of crack and 2) his two prior convictions. As discussed above, the district court properly found under this court‘s separate episodes test that Jones had at least two predicate drug felonies. Jones was sentenced on count 2 to five years, also the statutory minimum.
That leaves count 3, the felon-in-possession-of-firearms count. The statutorily mandated term for that count, after taking into account Jones‘s prior convictions, was 15 years to life. The district court sentenced Jones to a life term on that count, to run concurrently with count 1, possibly after grouping it with count 1 pursuant to the Guidelines.
We have declined to remand for resentencing pursuant to Booker an appeal from a sentence imposed for one count when the defendant received a longer or equal statutory mandatory minimum term on another count and the two run concurrently. United States v. Cornell, 162 Fed. Appx. 404, 409-10 and n. 1 (6th Cir.2006); United States v. Grundy, 178 Fed. Appx. 509, 511-12 (6th Cir.2006); United States v. Goliday, 145 Fed. Appx. 502, 507 (6th Cir.2005).
Because the life sentence on count 1 was statutorily required, we do not remand for
III
A. Confrontation Clause Challenges
In his pro se supplemental brief, Jones argues that the district court violated his Sixth Amendment Confrontation Clause rights when it admitted: 1) testimony by Det. Donegan regarding information that the C.I. had provided to Donegan; and 2) recordings of the controlled drug buys between Jones and the C.I. We address each in turn.
1. Information provided by the C.I. to Donegan
During direct examination of Donegan by the Assistant U.S. Attorney, the following exchange ensued:
Q. How did you come to being interested in Mr. Jones?
A. I was contacted by a concerned citizen here in Davidson County who stated that he had been—
MR. COOPER [Jones‘s trial attorney]: Your Honor, I‘m going to object to the hearsay.
THE COURT: Well, if it‘s not offered for the truth of the matter asserted. In other words, members of the jury, someone can receive some information not knowing whether it is true or not, can later testify about receiving that information, and you‘re not to consider that information as necessarily being true or untrue, because it‘s not sworn to, but he can testify as to what he was told and what he did upon receiving that information. Go ahead.
BY MR. KOSHY [the AUSA]:
Q. If you would, just keep it in a very summary fashion what this person told you. For instance, did he tell you that Mr. Jones—that he could perhaps purchase controlled substances from Mr. Jones?
A. Yes, that a person that he knew by Tony, and also knew his full name of Antonio Jones, that he could purchase cocaine from that person, gave me the address of 3288 Niagara Court as being his residence and two other locations where he would meet the informant, or the concerned citizen at that time, to make the deliveries of cocaine, one of those being on Stewarts Ferry near I-40 and the other one being closer downtown off North 1st.
The questioning then turned to the steps Donegan took to investigate Jones.
Jones argues that the admission of that evidence violates his Confrontation Clause rights. He did not raise a Confrontation Clause objection to the admission of the evidence at trial.4 “Because Defendant raised only a hearsay objection to these statements at trial, and did not challenge their admissibility on constitutional grounds, our review is governed by the plain error standard.” United States v. Hadley, 431 F.3d 484, 498 (6th Cir.2005).
“Pursuant to plain error review, an appellate court may only correct an error not raised at trial if there is (1) error, (2) that is plain, and (3) that affects substantial rights.” United States v. Cromer, 389 F.3d 662, 672 (6th Cir.2004) (internal quotation marks and citation omitted). “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 affect[s] the fairness, integrity, or public reputation of judicial pro
In Crawford, the Supreme Court held that “[w]here testimonial evidence is at issue, . . . the Sixth Amendment demands what the common law required: unavailability and a prior opportunity for cross-examination.” 541 U.S. at 68, 124 S.Ct. 1354. The Court noted that the Confrontation Clause “does not bar the use of testimonial statements for purposes other than establishing the truth of the matter asserted.” Id. at 59 n. 9, 124 S.Ct. 1354.
In Cromer, we declared that “[t]he proper inquiry” for whether a statement is testimonial is “whether the declarant intends to bear testimony against the accused.” “That intent, in turn,” we continued, “may be determined by querying whether a reasonable person in the declarant‘s position would anticipate his statement being used against the accused in investigating and prosecuting the crime.” 389 F.3d at 672, 675. The Cromer court held that statements by a C.I. to police are testimonial. Id. at 675. It commented:
Tips provided by confidential informants are knowingly and purposely made to authorities, accuse someone of a crime, and often are used against the accused at trial. The very fact that the informant is confidential—i.e., that not even his identity is disclosed to the defendant—heightens the dangers involved in allowing a declarant to bear testimony without confrontation. The allowance of anonymous accusations of crime without any opportunity for cross-examination would make a mockery of the Confrontation Clause.
The Cromer court then addressed whether in that case parts of the lead police investigator‘s trial testimony that disclosed information provided to her by a C.I. violated the defendant‘s Confrontation Clause rights. 389 F.3d at 675-79.5 The Cromer court divided the relevant parts of the police officer‘s testimony into three sections for purposes of its analysis. Id. at 675-79.
In the first section, the officer was asked on direct examination what her role was in investigating the defendant. She responded that she had received information about a particular address, and that she began investigating the address in connection with drug activity, as a result of which she came up with enough information for a search warrant. Cromer, 389 F.3d at 675. The Cromer court noted that that aspect of the officer‘s testimony did not violate the Confrontation Clause because it arguably did not put any statements from the C.I. before the jury, and even if it did, the testimony “was provided merely by way of background.” The court stated that the Confrontation Clause does not bar assertions offered not for the truth of their content but rather to explain why the government commenced the investigation.
By contrast, the Cromer court held that the second section of the officer‘s testimony that revealed statements by the C.I. did amount to a Confrontation Clause violation. Also on direct examination, the officer was asked the names of the people the police believed, prior to executing the search of the residence in question, to be associated with the illegal activities at that address. She responded by saying that one was “a person nicknamed Nut, which is Mr. Sean Cromer.” 389 F.3d at 676. The Cromer court stated that “[t]his testimony was not offered merely to explain why a government investigation was undertaken or to demonstrate the effect of the out-of-court statements on the offi
The Cromer court found the first and second sections of the police officer‘s testimony—based on statements by the C.I.—distinguishable on the following grounds: the second implicated Cromer in a way that went to the heart of the prosecution‘s case; the first only alluded in the vaguest possible terms to the C.I.‘s statements and linked those statements with actions taken by the officer; the first briefly explained why the government began the investigation of the residence and “at least arguably provided some assistance in understanding the background of the case.” The court noted that the second section informed the jury that the C.I. had implicated “Nut” in illegal activities, and stated that any attempt to link that to subsequent police activities was a “sham“; the central legal issue in the case was not whether illegal activity took place at the residence but rather whether Cromer knowingly participated in it.
As such, the court found that “evidence that the government focused its investigation on Nut is helpful to the jury only insofar as it relates to the difficult question whether Cromer was involved in the illegal activity,” and concluded that “the purpose of this testimony was to establish the truth of the matter asserted: to prove that Cromer was, indeed, involved in the illegal activity, as stated by the CI.” Id. at 676-77. For similar reasons, the court found that the third category of objectionable testimony, the officer‘s testimony on redirect regarding a physical description of Cromer provided by the CI, also violated the Confrontation Clause. Id. at 678.
The Cromer court found that the error was plain under Crawford, and that Cromer‘s substantial rights were violated because, in light of the closeness of the facts of that case, “the admission of statements directly tying Cromer to the crime likely impacted the outcome of the trial.” Accordingly, the court reversed Cromer‘s conviction. Id. at 679.
Cromer makes clear that statements made by a C.I. to the police can be “testimonial.” The question, in that case as well as in this one, then becomes whether the trial testimony of the police officer that refers to statements made to the officer by a non-testifying C.I. is offered to provide 1) background information regarding the investigation and why the police acted as they did, or 2) to prove the truth of the matter asserted. In this case, Donegan‘s testimony regarding what the C.I. told him about Jones provided information to the jury about why Donegan investigated Jones, and that testimony was tied to subsequent actions taken by the police. Furthermore, it could be argued that the district court‘s intervention and instruction mitigated the effect of the C.I.‘s statements.
On the other hand, Donegan‘s testimony repeating the C.I.‘s statements squarely implicated Jones as residing at 3288 Niagara, and tied Jones to drug activities based at that address. While there are no explicit indications that the prosecutor elicited the testimony for the purpose of using the evidence for the substance of the matter asserted, the form of the prosecutor‘s question virtually ensured that Donegan‘s response would be inculpatory on one or all of the central legal issues in the case. Furthermore, a review of the trial transcript shows no arguments or confusion over why the police investigated Jones.
The error did not affect Jones‘s substantial rights, however. “An error affects substantial rights when the error was prejudicial, that is, when it ‘affected the outcome of the district court proceedings.‘” United States v. Page, 232 F.3d 536, 544 (6th Cir.2000) (quoting United States v. Olano, 507 U.S. 725, 734, 113 S.Ct. 1770, 123 L.Ed.2d 508 (1993)). The government presented proof of four controlled drug buys; in 655 Joseph the police found drugs and a scale; in 3288 Niagara they found large amounts of drugs, firearms, photos of the defendant with firearms, photos of the defendant wearing clothing found at that residence, and paperwork of Jones; Jones admitted to living at 3288 Niagara and gave the police information regarding his drug supplier and the location of some of the firearms in the house, which he said he kept for protection. Under these circumstances, Jones cannot show that the admission of the one brief part of Donegan‘s testimony in which Donegan repeated statements from the C.I. affected the outcome of his trial.
2. Recordings of the controlled drug buys
The government sought to play at trial recordings of the controlled drug buys between Jones and the C.I. Jones objected on the basis of hearsay and lack of foundation. Following additional foundation testimony, the district court overruled the objection, although the recordings were not admitted into evidence until later, when Jones reasserted his lack-of-foundation objection and also objected under
Jones challenges the admission of the recordings as a violation of his Confrontation Clause rights. Again, because he did not raise that specific objection below, the challenge is reviewed for plain error.
Jones‘s challenge is unavailing. In United States v. Sexton, 119 Fed. Appx. 735, 741-43 (6th Cir.2005), we held that the admission of recordings involving a C.I. and a defendant did not violate the Confrontation Clause because the portions not involving the C.I. were party admissions and the portions involving the C.I. were offered not for the truth of the matters asserted but to “give meaning to the admissible responses of [the defendants].” The Third Circuit has come to the same conclusion via similar reasoning in United States v. Hendricks, 395 F.3d 173, 182-84 (3d Cir.2005) adding that the portions of the recordings containing the defendant‘s and co-conspirator‘s statements were not testimonial and fell outside of Crawford for that reason. The Third Circuit held that “if a Defendant or his or her coconspirator makes statements as part of a reciprocal and integrated conversation with a government informant who later becomes unavailable for trial, the Confrontation Clause does not bar the introduction of the informant‘s portions of the conversation as are reasonably required to place the defendant or coconspirator‘s nontestimonial statements into context.” Ibid.
Jones‘s statements captured on the recordings are party admissions and nontestimonial and do not violate the Confronta
Even if the portions of the recordings containing the C.I.‘s statements were offered for the truth of what the C.I. said on them, however, and the admission of them violated the Confrontation Clause, the admission did not substantially affect Jones‘s rights, for the reasons discussed above. That the jury asked to hear a sample of Jones‘s voice from the tapes, and evidently did hear some part of the tapes (the record does not specify what they heard), does not alter that conclusion.
B. Prosecutorial misconduct
Jones alleges in his pro se supplemental brief that the prosecutor committed misconduct by threatening Candace Shelton. Jones asserts that the prosecutor, in the courtroom while the jury was excused, told Shelton that she would receive a life sentence if she testified on behalf of the defense, and that the prosecutor had earlier “instructed Ms. Shelton to recant her suppression hearing statements and in return would grant her immunity.” Jones attached to his pro se supplemental brief an affidavit from Shelton essentially conveying those and similar allegations.
Neither Jones‘s allegation of prosecutorial misconduct nor the information in Shelton‘s affidavit on which that allegation is based were presented to the district court. We will not consider Jones‘s allega
C. Admission of evidence of the prior controlled drug sales by Jones to the C.I.
In his pro se supplemental brief, Jones argues that the district court erred in admitting evidence of the controlled drug sales between Jones and the C.I. that took place on June 5, 14, and 17, 2002. He asserts that the evidence violated
Although the drug sales between Jones and the C.I. on June 5, 14, and 17, 2002, were not charged as substantive counts in the indictment, the government introduced evidence of those drug sales at trial, including testimony by Donegan and the recordings of the transactions. Jones objected at trial on multiple occasions on
In discussing count 2 during his closing argument, the prosecutor stated that among the drug trafficking crimes Jones committed in furtherance of which he possessed firearms were possession with intent to distribute crack and cocaine on the day he was arrested, maintaining a drug house, and a drug-trafficking conspiracy with Fernando. In the district court‘s instructions to the jury, the court stated: “Count 1 alleges drug trafficking on or about June 19, 2002. There has been testimony about drug trafficking prior to June 19. That evidence was admitted as pertinent to the charge in Count 2 of the Indictment that I have just explained to you.”
The district court did not abuse its discretion in admitting the evidence of the controlled drug transaction as evidence of the government‘s case on count 2, and in instructing the jury that it was to consider the evidence for that purpose. See United States v. Frederick, 406 F.3d 754, 761 (6th Cir.2005) (finding no abuse of discretion in the district court‘s admission of testimony by a witness recounting prior drug dealing by the defendant where the defendant was charged with, inter alia, possession of marijuana with intent to distribute and possession of a firearm in furtherance of a drug trafficking crime, and where the testimony served as evidence with respect to the firearm charge).
In United States v. Dunn, 805 F.2d 1275, 1280 (6th Cir.1986), this court stated that “[w]hen other crimes allegedly committed by the defendant are introduced for a purpose other than those explicitly listed in Rule 404(b), the evidence must nonetheless be subjected to Rule 404(b) inquiry in order to ensure that it is not used to show that, on the occasion in question, the accused ‘acted in conformity therewith,’ or to show the defendant‘s bad character or criminal propensity.”
The evidence of the prior drug sales from Jones to the C.I. passes this court‘s tripartite test for determining admissibility of prior acts evidence under
Finally, even if the admission of the evidence was erroneous under
D. Claims related to 18 U.S.C. § 3559(c)(1)
In his pro se supplemental brief, Jones makes several arguments related to
E. Characterization of Jones‘s previous state conviction for possessing .5 grams or less of cocaine as a felony
Jones argues in his pro se supplemental brief that his prior Tennessee state conviction for possessing less than .5 grams of cocaine did not count as a “felony” for the purposes of
First, this challenge is futile. As discussed supra part II, subsection C.1.,
Second, the argument is waived. At the sentencing hearing, Jones‘s counsel acknowledged that the prior conviction of which Jones complains here was a felony.
Third, the argument is almost certainly incorrect.
Thus it appears that Jones was actually convicted in Tennessee of possessing with intent to deliver/sell less than .5 grams of cocaine under
F. Sufficiency of the evidence regarding count 2, possession of firearms in furtherance of a drug trafficking crime
In his pro se supplemental brief, Jones argues that his conviction for possessing a firearm in furtherance of a drug trafficking crime was not supported by sufficient evidence.
“We must uphold a jury verdict if viewing the evidence in a light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.” United States v. Blood, 435 F.3d 612, 618 (6th Cir.2006) (internal quotation marks and citations omitted). Additionally, it appears that Jones did not move for judgment of acquittal pursuant to
Sufficient evidence exists that Jones constructively possessed the firearms found at 3288 Niagara and that there was a specific nexus between the firearms and the drug trafficking offense of possession with intent to distribute the crack (although the nexus could also be maintaining a drug house or conspiring with his supplier, Fernando). See Frederick, 406 F.3d at 763-65; United States v. Mackey, 265 F.3d 457, 460-63 (6th Cir.2001).
Sufficient evidence supports Jones‘s constructive possession of the guns. Jones “knowingly ha[d] both the power and the intention at any given time to exercise dominion and control” over the firearms. Frederick, 406 F.3d at 765 (internal quotation marks and citation omitted). The guns and drugs were found in close proximity in the 3288 Niagara residence; the guns were located in places clearly chosen to make them easily accessible; Jones admitted he resided at 3288 Niagara and that the guns were his. Several recent circuit court decisions have found that sufficient evidence established constructive possession of guns in furtherance of a drug trafficking crime in analogous factual circumstances. See, e.g., United States v. McLee, 436 F.3d 751, 757-58 (7th Cir.2006); United States v. Brooks, 438 F.3d 1231, 1234, 1237-38 (10th Cir.2006); United States v. Smith, 173 Fed. Appx. 742, 743-48 (11th Cir.2006).
The evidence is clear that the firearms bore a specific nexus to Jones‘s possession of the drugs with intent to distribute them. In the master bedroom of 3288 Niagara, two pistols, the crack, cut, transaction ledgers, scales, and baggies were all found in a dresser; near the dresser was a safe containing cash and cocaine; under the mattress was a shotgun. Further afield, a loaded .44 magnum was found under a couch cushion in the den. Jones admitted to residing at 3288 Niagara and to possess
The challenge is without merit.
IV
For the foregoing reasons, we AFFIRM Jones‘s convictions and sentence.
PER CURIAM