United States v. James , 291 F. App'x 676 ( 2008 )

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
September 10, 2008
No. 07-31048 Charles R. Fulbruge III
Clerk
UNITED STATES OF AMERICA
Plaintiff-Appellee
v.
CHAD JAMES
Defendant-Appellant
Appeal from the United States District Court
for the Eastern District of Louisiana
USDC No. 2:06-CR-55-1
Before REAVLEY, STEWART, and OWEN, Circuit Judges.
PER CURIAM:*
Chad James appeals following his conviction for possession with intent to
distribute five grams or more of crack cocaine, possession with intent to
distribute a quantity of cocaine hydrochloride, possession of a firearm in
furtherance of drug trafficking, and being a felon in possession of a firearm. He
challenges the district court’s denial of a suppression motion and several trial
rulings, as well as the sufficiency of the evidence to support his conviction.
Finding no reversible error, we AFFIRM.
*
Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.
R. 47.5.4.
No. 07-31048
James was arrested on a parole violation warrant. When police arrived at
his apartment to execute the warrant they accompanied him inside so that he
could get dressed. He was initially calm and compliant, but upon entering the
apartment James suddenly and quickly closed an interior door leading to
another room, which police found suspicious. Police also observed a shotgun in
plain view leaning against the bedroom wall next to the bed. As the officers
tried to handcuff James, he resisted and began a violent altercation that led to
two officers and James tumbling down the stairs and out into the street, where
James continued the fight. Although no one was present on the street, James
began calling for help. The officers did not know whether James was calling for
assistance from someone who may have been inside the apartment. After
securing James, an officer reentered the apartment to secure the shotgun and
to conduct a protective sweep. The officer observed suspected cocaine in plain
view in the room to which James had slammed the door. The officer secured the
residence and obtained a search warrant. Police then seized crack and powder
cocaine, drug distribution paraphernalia, a loaded shotgun, and over $5000 in
cash.
James contends that all the evidence except for the shotgun was obtained
in an illegal protective sweep of his apartment and that the district court should
have granted his suppression motion. We disagree.
Incident to an arrest, a police officer may conduct a visual protective sweep
of premises to ensure that no other persons are hiding therein who may pose a
threat to the safety of officers or other persons when there are articulable facts
and inferences from which a prudent officer could believe the area to be swept
harbors another dangerous individual. Buie v. Maryland, 494 U.S. 325, 334, 110
S. Ct. 1093, 1098 (1990); United States v. Mata, 517 F.3d 279, 285–86 (5th Cir.
2008). Contrary to James’ assertion in his brief that no one found his sudden
closing of the inside door suspicious, Sgt. Kerr testified that this action was
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inconsistent with James’s demeanor to that point and raised red flags with him.
Already on alert from James’s sudden slamming of the door, police were then
confronted with a firearm in plain view in a felon’s apartment and with a violent
struggle that resulted in injuries to two officers. As James continued to resist
and fight, he called for help from unknown persons even though no one else was
in the street. From the officers’ perspective, other individuals could have been
inside the apartment with the weapon. Police reentered the apartment less than
a minute after subduing James. Given the totality of the circumstances and
rapidly evolving events, the district court’s factual determination that there was
sufficient danger to justify a protective sweep was not clearly erroneous. See
United States v. Watson, 273 F.3d 599, 603 (5th Cir. 2001).
James next argues that during trial the district court improperly
permitted a DEA agent to offer expert testimony about narcotics trafficking that
went to James’s ultimate state of mind. He contends that the agent offered
improper profile evidence. We conclude, however, that the agent’s testimony
provided the jury with helpful information about the significance of evidence in
the case, e.g. that drug distributors usually bundle their money in a certain way
and possess certain amounts of drugs, firearms, and other items helpful to drug
trafficking. The agent also indicated the street value of the drugs seized. We
have held that experienced narcotics agents may provide this type of evidence
to assist the jury, United States v. Washington, 44 F.3d 1271, 1283 (5th Cir.
1995), and the district court did not abuse its discretion. See United States v.
Speer, 30 F.3d 605, 609–10 (5th Cir. 1994). To the extent that James argues he
was denied due process because he lacked an expert to counter the Government’s
witness, we find no merit to the claim.
James next argues that the evidence was insufficient to show that he had
an intent to distribute the drugs seized from his apartment. James was found
in possession of 14.7 grams of crack and 79 grams of powder cocaine. These
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drugs had a value of approximately $3000. There was evidence in the form of
cocaine residue on pots and pans that James had been converting the powder
cocaine into crack. James was also in possession of drug distribution
paraphernalia, including cutting agents, a scale, and baggies. Furthermore,
police seized over $5000 in cash stacked in $1000 bundles, which the testimony
showed was consistent with drug trafficking. An intent to distribute may be
found from possession of drug distribution paraphernalia, large quantities of
cash, or the value and quantity of the drugs seized. United States v. Harrison,
55 F.3d 163, 165 (5th Cir. 1995). A rational jury could conclude from the
evidence here that James had the requisite intent.
James also argues that the evidence was insufficient to show that he
possessed the shotgun in furtherance of drug trafficking because the
Government proved only that a common hunting weapon was present at the
scene. A defendant convicted of a drug offense who also engages in hunting or
target shooting does not violate 18 U.S.C. § 924(c)(1)(A) if he merely possesses
a firearm useful for that purpose that is unloaded or is inaccessible. United
States v. Ceballos-Torres, 218 F.3d 409, 415 (5th Cir. 2000). James’s shotgun
was not mounted for display on a wall, was not unloaded, and was not otherwise
locked or inaccessible. In was possessed illegally and was found loaded, in plain
view, and easily accessible in James’s bedroom. Although the gun was not in the
same room as the other contraband, James’s apartment contained a significant
amount of drugs and drug distribution paraphernalia and a large quantity of
cash. The evidence was sufficient for the jury to conclude the weapon was
possessed in furtherance of drug trafficking. See id. at 414–15.
Finally, James challenges several evidentiary rulings, contending that the
district court erred by admitting the parole violation warrant, the search
warrant, and testimony about his fight with the arresting officers. With respect
to the parole violation and search warrants, we note that James did not object
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No. 07-31048
to admission of the evidence but only to the evidence being published to the jury.
Notwithstanding the Government’s view that the objection failed to preserve the
issue for review beyond plain error, we are not convinced that the disputed
evidence likely influenced the jury’s verdict. The evidence was more than
sufficient to support James’s conviction, and his contention that the jury may
have convicted him because of the parole violation or the search warrant is
unpersuasive. Any error would be harmless. See United States v. Hawley, 516
F.3d 264, 268 (5th Cir. 2008), pet. for cert. filed (Apr. 29, 2008) (No. 07-10773).
With respect to testimony about James’s fight with the officers, the district
court denied a motion in limine to exclude this evidence. Because James did not
object to the testimony at trial, the issue is subject to plain error review. See
C.P. Interests v. Cal. Pools, Inc., 238 F.3d 690, 697 & n.5 (5th Cir. 2001). James
argues that the testimony was not relevant to the crimes charged in the
indictment and presented unnecessary evidence of violent conduct. We agree
with the district court that the events surrounding the struggle led police to the
protective sweep and to request a search warrant and helped explain the context
for the discovery of the drugs. We also conclude from the record that the
evidence was not the kind likely to incite the jury to an irrational decision.
Furthermore, the district court properly instructed the jury that James was not
on trial for any act not alleged in the indictment. James therefore fails to show
sufficient prejudice. See United States v. Yi, 460 F.3d 623, 633 (5th Cir. 2006).
AFFIRMED.
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