United States v. Emanuel Cowley, Jr. ( 2022 )

United States Court of Appeals
For the Eighth Circuit
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No. 21-1729
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United States of America
Plaintiff - Appellee
v.
Emanuel Cowley, Jr.
Defendant - Appellant
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Appeal from United States District Court
for the Southern District of Iowa - Eastern
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Submitted: January 14, 2022
Filed: May 12, 2022
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Before COLLOTON, KELLY, and KOBES, Circuit Judges.
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KELLY, Circuit Judge.
A jury convicted Emanuel Cowley on three counts: (1) possession with intent
to distribute a controlled substance, in violation of 21 U.S.C. §§ 841(a)(1) and
841(b)(1)(C); (2) possession of a firearm in furtherance of a drug trafficking crime,
in violation of 18 U.S.C. § 924(c)(1)(A)(i); and (3) being a felon in possession of a
firearm, in violation of 18 U.S.C. §§ 922(g)(1) and 924(a)(2). Cowley then moved
for judgment of acquittal or for a new trial, and the district court 1 denied his motion.
Cowley appeals his conviction and the denial of his motion. We have jurisdiction
pursuant to 28 U.S.C. § 1291, and we affirm.
I. Background
Cowley was driving in Iowa City in the early hours of July 13, 2019, when he
was pulled over by Detective Alex Stricker of the Iowa City Police Department.
Stricker had observed Cowley driving above the speed limit and drifting between
lanes and was concerned that he might be intoxicated. There were two passengers
in the car—Charlie Pitchford in the front seat and Brianna Harvey in the back seat.
During the traffic stop, Cowley consented to a search of his pockets. The detective
found two cell phones and $40 in Cowley’s pockets. Officers then searched the
vehicle and located a pistol under the front passenger seat, where Pitchford had been
sitting. Cowley was ultimately taken to the county jail for driving while intoxicated
and was searched further. In his shoes, officers found $1,260 in cash and 0.22 grams
of crack cocaine. Cowley was then subjected to a strip search, and ten additional
bags of crack cocaine were located in his underwear. One bag weighed 5.24 grams,
one weighed 0.06 grams, one weighed 0.5 grams, and the remaining seven bags
weighed approximately 0.2 grams each.
The jury found Cowley guilty on all three counts. On appeal, Cowley asserts
that the government’s expert witness offered impermissible testimony regarding
Cowley’s intent to distribute the drugs in his possession. He also argues that the
evidence presented at trial was insufficient to support convictions for possession
with intent to distribute a controlled substance and possession of a firearm in relation
to a drug trafficking offense. We take up each of Cowley’s arguments in turn.
1
The Honorable John A. Jarvey, then Chief Judge, United States District Court
for the Southern District of Iowa, now retired.
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II. Evidentiary Objection
Pursuant to the Federal Rules of Evidence, “[i]n a criminal case, an expert
witness must not state an opinion about whether the defendant did or did not have a
mental state or condition that constitutes an element of the crime charged or of a
defense.” Fed. R. Evid. 704(b). “Testimony that, when combined with other
evidence, might imply or otherwise cause a jury to infer this ultimate conclusion,
however, is permitted under the rule.” United States v. Vesey, 338 F.3d 913, 916
(8th Cir. 2003).
During trial, the government presented Sergeant Jerry Blomgren as an expert
in the area of drug investigations. Cowley argues that the following exchange
between the prosecutor and Blomgren on direct examination was improper:
Q: This crack cocaine that we see in Government’s Exhibits 4 and 3
and that’s been depicted in various photographs, was that possessed
with the intent to distribute to someone else, or was that possessed for
someone – for the possessor to use himself?
A: I would say it was possessed with the intent to distribute.
Government’s Exhibit 3 was the bag containing crack cocaine collected from
Cowley’s shoe when he was booked into the Johnson County jail. Government’s
Exhibit 4 was the bags collected from Cowley’s underwear, which also contained
crack cocaine.
Because Cowley did not object under Rule 704(b) during trial, we review the
admissibility of the testimony for plain error. See United States v. Parish, 606 F.3d
480, 490 (8th Cir. 2010). We reverse for plain error only when “(1) there was an
error, (2) the error is clear or obvious under current law, (3) the error affected the
party’s substantial rights, and (4) the error seriously affects the fairness, integrity, or
public reputation of judicial proceedings.” United States v. Braden, 844 F.3d 794,
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798 (8th Cir. 2016) (quoting United States v. Iceman, 821 F.3d 979, 983–84 (8th
Cir. 2016)).
We agree with Cowley that Blomgren offered an opinion about Cowley’s
intent and that it was an error under Rule 704(b) to admit that portion of Blomgren’s
testimony. Blomgren was asked and gave his opinion about the intent with which
the cocaine depicted in Government’s Exhibits 3 and 4 “was possessed.” Testimony
had already established that Cowley was the one who possessed the drugs shown in
the government’s exhibits. The use of the passive voice does not change the fact
that Blomgren explicitly gave his opinion about Cowley’s intent, requiring no
inference by the jury to reach the “ultimate conclusion.” Therefore, Blomgren’s
opinion testimony was inadmissible under Rule 704(b).
While the admission of Blomgren’s opinion testimony was erroneous, we
conclude that it did not affect Cowley’s substantial rights because there was ample
evidence to support the jury’s verdict, even accounting for the effect of the improper
expert testimony. An error affects substantial rights only when it affects the outcome
of the case. See Parish, 606 F.3d at 490. “Intent to distribute controlled substances
may be proved by either direct evidence or circumstantial evidence.” United States
v. Thompson, 881 F.3d 629, 632 (8th Cir. 2018) (quoting United States v. Schubel,
912 F.2d 952, 956 (8th Cir. 1990)). “Drug quantity and purity level, drug
paraphernalia, prior sales, and the presence of cash or a firearm support an inference
of intent to distribute.” Id. at 632–33 (quoting United States v. Fetters, 698 F.3d
653, 657 (8th Cir. 2012)); see also United States v. Shaw, 751 F.3d 918, 922 (8th
Cir. 2014) (possession of 0.89 grams of cocaine along with a loaded gun and $1,776
in cash sufficient for a jury to infer an intent to distribute); United States v. White,
969 F.2d 681, 684 (8th Cir. 1992) (possession of 7.54 grams sufficient to sustain a
guilty verdict for possession with intent to distribute when paired with other indicia,
including a firearm, drugs in multiple packages, and significant amounts of money).
At trial, the jury heard extensive testimony that was relevant to Cowley’s
intent to distribute a controlled substance, and that testimony is not challenged on
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appeal. Cowley possessed a total of 7.69 grams of cocaine, which Blomgren testified
was far more than a regular user would use in a day or two and more than a typical
user of crack cocaine could afford to purchase for personal use at one time. The
crack cocaine was packaged into seven bags containing 0.2 grams each and an eighth
bag containing 0.5 grams, which Blomgren indicated were user amounts of crack
cocaine. But Cowley was not carrying any paraphernalia for consuming the drugs,
which Blomgren said could only be used by smoking with a pipe. The jury also
heard testimony that Cowley was carrying two cellphones and $1,300 in cash and
that there was a gun under the front passenger seat of the car Cowley was driving.
Blomgren testified that in his experience as a drug crime investigator, drug dealers
often have two phones, one they use to coordinate drug activity and one for non-
drug-related use; that it was unusual in his experience for a crack user who is not
engaged in distribution to have the kind of cash found in Cowley’s possession; and
that drug dealers often carry guns to protect themselves from robbery. Finally, the
prosecutor asked Blomgren if he had
ever encountered a user of crack cocaine who had ten small bags of
crack cocaine . . . that were all around approximately two-tenths of a
gram or so and who had an excess of 5 grams in a larger chunk? Have
you ever encountered a crack user who had that much crack and who
had in excess [of] a thousand dollars?
Blomgren responded, “Strictly a user? No.”
In sum, there was ample evidence presented from which the jury could infer
an intent to distribute even if Blomgren’s inadmissible testimony regarding
Cowley’s intent was omitted. The quantity of drugs, the packaging of the drugs, the
presence of a significant amount of cash and a firearm, and the lack of paraphernalia
have all been held to be indicia from which a jury may infer an intent to distribute.
We therefore conclude that the error in admitting Blomgren’s opinion testimony
regarding intent did not affect the outcome of the case and, thus, did not affect
Cowley’s substantial rights.
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III. Sufficiency of the Evidence
In reviewing the sufficiency of the evidence to support a guilty verdict, “[o]ur
review is highly deferential: we must affirm unless no reasonable juror could find
the defendant guilty beyond a reasonable doubt.” United States v. Urbina-
Rodriguez, 986 F.3d 1095, 1097 (8th Cir. 2021).
A. Intent to Distribute
Cowley challenges the sufficiency of the evidence to establish his intent to
distribute the drugs he possessed. We have already discussed the evidence that
supports the jury’s inference that Cowley possessed crack cocaine with the intent to
distribute it. On that basis, a reasonable juror could find Cowley’s intent to distribute
beyond a reasonable doubt, and we find no basis to vacate Cowley’s conviction on
Count 1.
B. Possession of a Firearm in Furtherance of a Drug Trafficking Offense
Cowley also challenges his conviction for possession of a firearm in
furtherance of a drug trafficking crime. He argues that the evidence was insufficient
to establish his possession of the firearm in connection with a drug trafficking
offense because the gun was found under the passenger seat, where Pitchford was
seated.
“Possession may be actual or constructive and need not be exclusive.” United
States v. Williams, 512 F.3d 1040, 1044 (8th Cir. 2008). “[S]imultaneous possession
of drugs and a firearm, standing alone, is insufficient to sustain a conviction.” United
States v. Robinson, 617 F.3d 984, 988 (8th Cir. 2010) (quoting United States v.
Hilliard, 490 F.3d 635, 640 (8th Cir. 2007)). The jury may infer the requisite nexus
between the firearm and the crime “when [the firearm] is kept in close proximity to
the drugs, it is quickly accessible, and there is expert testimony regarding the use of
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firearms in connection with drug trafficking.” United States v. Close, 518 F.3d 617,
619 (8th Cir. 2008).
The evidence here is sufficient to support a guilty verdict for possession of a
firearm in furtherance of a drug trafficking crime. In United States v. Fetters, the
court found a gun located under the front passenger seat to be “in close proximity”
to 11 grams of methamphetamine and $2,800 in cash on the defendant, who was the
driver of the vehicle. 698 F.3d 653, 658 (8th Cir. 2012). Like in Fetters, the gun in
Cowley’s car was located under the front passenger seat, and Cowley had drugs and
cash on his person. Additionally, Stricker testified that when he initiated the traffic
stop, Cowley did not pull the car over immediately but continued to drive another
block or so at a slow pace, during which time Stricker saw the dome light come on
inside the car and could see Cowley and Pitchford reaching around in the front cab
of the car, including across the center console. A jury could infer from Stricker’s
testimony that Cowley had the gun in a more visible or accessible location and hid
it when Stricker initiated the traffic stop.
Additionally, the jury heard testimony regarding the connection between drug
trafficking and the use of guns. Blomgren testified that “[g]uns are typically used
by drug dealers to protect not only themselves, but their associates, their drugs, and
their money because they generally have both of those on them.” Blomgren testified
that robberies of drug dealers are fairly common because robbers “know that [a] drug
dealer has money on them or there’s a good likelihood of it, but they also realize that
that person is not very likely to contact the police.” Blomgren confirmed that in
addition to the cash Cowley was carrying, the drugs in his possession had a street
value of hundreds of dollars. Based on the evidence in the record, a reasonable juror
could have found beyond a reasonable doubt that Cowley possessed the firearm in
furtherance of the drug trafficking offense, and the evidence is sufficient to support
a guilty verdict on Count 2.
For these reasons, we affirm the judgment of the district court.
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