                NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                           File Name: 09a0024n.06
                           Filed: January 13, 2009

                                            No. 07-6105

                           UNITED STATES COURT OF APPEALS
                                FOR THE SIXTH CIRCUIT


UNITED STATES OF AMERICA,                                 )
                                                          )
       Plaintiff-Appellee,                                )        ON APPEAL FROM THE
                                                          )        UNITED STATES DISTRICT
               v.                                         )        COURT FOR THE WESTERN
                                                          )        DISTRICT OF TENNESSEE
TONY MITCHELL,                                            )
                                                          )
       Defendant-Appellant.                               )
                                                          )



BEFORE: GUY and GRIFFIN, Circuit Judges; and WATSON, District Judge.*

       GRIFFIN, Circuit Judge.

       Defendant Tony Mitchell appeals his conviction for possession of crack cocaine in excess

of 50 grams and for being a felon in possession of a firearm. He argues that the district court erred

in denying his motion to suppress the drugs and firearms discovered during a consent search of his

girlfriend’s apartment, and in allowing “other acts” evidence of his subsequent selling of crack

cocaine to an undercover police officer. Also, he claims that the evidence was insufficient to support

the jury’s verdict. Because each of these arguments lack merit, we affirm.

                                                  I.




       *
        The Honorable Michael H. Watson, United States District Judge for the Southern District
of Ohio, sitting by designation.
No. 07-6105
United States v. Mitchell


       On December 2, 2002, Lieutenant Jeff Clark and Officers Dickerson and Nelson of the

Memphis Police Department traveled to 1480 Patten, apartment 4, to execute a federal arrest warrant

in a neighborhood known for prolific drug activity. Lieutenant Clark went to the back of the

apartment while Dickerson and Nelson knocked on the front door. At the same time, a car pulled

in, and Lt. Clark stepped behind the corner of the building to hide, so he would be able to see if the

subject of the arrest warrant was in the car. When the car stopped, Lt. Clark directed his flashlight

at the car and saw the driver, defendant Tony Mitchell,1 push something towards the console. Not

knowing what it was, and concerned for his safety, Lt. Clark ordered Mitchell to get out of the car.

Mitchell complied, and Lt. Clark observed that the object Mitchell attempted to hide was a plastic

bag containing cocaine.

       Mitchell denied living at the apartment, but his keys matched the lock on the door. Soon

thereafter, Clark was called away to assist with an investigation involving a police shooting, but he

arranged for Shelby County Sheriff Deputies Ballard and Trammell to take over the investigation.

In the meantime, two women arrived at the apartment. One of them, Artara Rush, identified herself

as the resident of apartment number 4 and stated that Mitchell was her boyfriend. Ballard told Rush

about the drugs discovered in the car, and Rush responded: “I’ve told him about this, I’ve told him

about this, you know, I don’t want this stuff anywhere around my house. I’ve got kids, you know,

and I don’t want it in my apartment, and I don’t want it around . . . .” Ballard asked Rush for

permission to search the apartment, and she consented, both verbally and by signing a written


       1
           Mitchell was not the subject of the arrest warrant.

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No. 07-6105
United States v. Mitchell


consent agreement. Ballard testified that Rush appeared to be angry towards Mitchell and said that

she would be upset if there were any narcotics in the apartment.

           Upon searching the apartment, Ballard discovered in a dresser drawer a .38 revolver and a

9mm automatic pistol, both of which were loaded. Ballard also found in a vacuum cleaner 42 grams

of crack cocaine and 28 grams of powder cocaine. Adjacent to the vacuum cleaner was a box

containing a digital scale, ammunition, and Mitchell’s social security card.

           After Mitchell was given his Miranda warnings and signed a Miranda waiver, he told Ballard

that the .38 revolver and the drugs were his and did not belong to Rush. Further, he denied owning

the 9mm, but admitted that it was in his possession and that he was holding it for his uncle.

           Gerald Powell, an investigator for the Federal Public Defender’s Office, also testified at the

suppression hearing. Powell interviewed Rush in May of 2006, but was subsequently unable to

locate her. Powell testified that Rush claimed that she did not consent initially to the search of her

apartment and that she agreed to the search only after the police threatened to get a search warrant

and take her children from her. After his arrest, but before his indictment, Mitchell was arrested in

conjunction with a different incident in which he allegedly sold drugs to an undercover police

officer.

           In the present case, a federal grand jury indicted Mitchell on July 14, 2005. Following a jury

trial, he was convicted of possession with intent to distribute crack cocaine in excess of 50 grams

in violation of 21 U.S.C. § 841(a)(1), and two counts of being a felon in possession of a firearm in

violation of 18 U.S.C. § 922(g). He timely appealed.


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No. 07-6105
United States v. Mitchell


                                                 II.

       First, Mitchell argues that the district court erred by not granting his motion to suppress the

evidence discovered at Rush’s apartment. When reviewing a district court’s denial of a motion to

suppress, “we defer to the district court’s factual findings unless they are clearly erroneous. Legal

conclusions, however, are reviewed de novo.” United States v. Carpenter, 360 F.3d 591, 594 (6th

Cir. 2004) (en banc) (citing United States v. Bartholomew, 310 F.3d 912, 919 (6th Cir. 2002)). A

factual finding is clearly erroneous when, “although there may be evidence to support it, the

reviewing court, utilizing the entire evidence, ‘is left with the definite and firm conviction that a

mistake has been committed.’” United States v. Ellis, 497 F.3d 606, 611 (6th Cir. 2007) (quoting

United States v. Navarro-Camacho, 186 F.3d 701, 705 (6th Cir. 1999)). “Where there are two

permissible views of the evidence, the factfinder’s choice between them cannot be clearly

erroneous.” Anderson v. City of Bessemer City, 470 U.S. 564, 574 (1985).

       The totality of defendant’s argument in favor of suppression is that:

       The district court clearly erred in not finding that Rush felt compelled to grant
       consent or that she merely acquiesced to the police officers [sic] show of authority.
       Powell testified that Rush claimed that the officers threatened to have her arrested
       and her children taken away from her if they were forced to secure a search warrant.

       It is undisputed that police officers may enter and search a home without a warrant if the

homeowner consents to the search. See United States v. Jenkins, 92 F.3d 430, 436 (6th Cir. 1996)

(“An officer with consent needs neither a warrant nor probable cause to conduct a constitutional

search.”). Defendant does not deny that Rush consented to the search; rather, he argues that the

consent was not voluntary because it was allegedly made under duress. However, the district court

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No. 07-6105
United States v. Mitchell


heard testimony from the officers and received hearsay evidence from Powell regarding Rush’s

statements, and the trial judge made a factual finding regarding the validity of the consent based on

the credibility of the officers’ testimony:

        My view is that there was valid consent to enter the apartment, that Ms. Rush was not
        under duress, she wasn’t coerced, she wasn’t submitting to authority, she knew what
        she was doing and she did it. That’s what the totality of the circumstances here
        suggest to me and what the credible testimony suggest to me.

        When reviewing a district court’s denial of a motion to suppress, we are required to view the

evidence in the light most likely to support the decision of the district court. United States v.

Alexander, 540 F.3d 494, 500 (6th Cir. 2008); see also United States v. Martin, 526 F.3d 926, 936

(6th Cir. 2008). We may overturn a district court’s factual finding that the search was voluntary only

if such a finding is clearly erroneous. United States v. Elkins, 300 F.3d 638, 647 (6th Cir. 2002).

Although defendant disagrees with the district court’s conclusion, his bald assertion that the district

court erred by not ruling in his favor does not rise to the level of demonstrating that the district court

committed clear error.

                                                   III.

        Next, Mitchell argues that the district court erred by admitting testimony regarding the facts

relating to the February 18, 2005, incident. Mitchell asserts that this “other acts” evidence is

irrelevant and prejudicial because it involves a matter that occurred fourteen months after the present

offenses for which he was indicted and involved facts that were not substantially similar to the facts

at bar. In the alternative, he argues that the evidence was more prejudicial than probative and

effectively “precluded him from having the benefit of the presumption of innocence.” The

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No. 07-6105
United States v. Mitchell


government responds that the facts regarding the subsequent incident were properly admitted because

they support the intent element of the crime at bar. Further, even if the district court erred in

admitting the evidence, the government argues that such error was harmless because, in light of

Mitchell’s confession, the case against him was overwhelming.

        This court “reviews a district court’s evidentiary rulings for abuse of discretion, and a district

court’s determination will be reversed only if the abuse of discretion caused more than harmless

error.” Tompkin v. Phillip Morris USA, Inc., 362 F.3d 882, 897 (6th Cir. 2004); see also Gen. Elec.

Co. v. Joiner, 522 U.S. 136, 141 (1997) (specifying that abuse of discretion review applies to appeals

from a district court’s evidentiary rulings). “Even if a mistake has been made regarding the

admission or exclusion of evidence, a new trial will not be granted unless the evidence would have

caused a different outcome at trial.” Morales v. Am. Honda Motor Co., 151 F.3d 500, 514 (6th Cir.

1998); see also Taylor v. TECO Barge Line, Inc., 517 F.3d 372, 378 (6th Cir. 2008 ) (same).

        Federal Rule of Evidence 404(b) prohibits the introduction of evidence of other acts to show

a propensity for crime or to impugn the defendant’s character. See FED . R. EVID . 404(b). However,

the rule also provides that evidence of other acts may “be admissible for other purposes, such as

proof of motive, opportunity, intent . . . .” Id.

        The district court allowed the evidence of the subsequent incident for the limited purpose of

establishing Mitchell’s specific intent to distribute the drugs in the instant case. The district court

issued a limiting instruction to the jury before admitting the evidence, and another limiting

instruction before the jury deliberated. We have held that “where there is thrust upon the


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No. 07-6105
United States v. Mitchell


government, either by virtue of the defense raised by the defendant or by virtue of the elements of

the crime charged, the affirmative duty to prove that the underlying prohibited act was done with a

specific criminal intent, other acts evidence may be introduced under Rule 404(b).” United States

v. Johnson, 27 F.3d 1186, 1192 (6th Cir. 1994). Because specific intent was an element of the

charged offenses, and because the district court properly limited the scope of the evidence to this

element, the district court did not abuse its discretion in ruling that the evidence was relevant and

admissible for this limited purpose.

        In the alternative, defendant argues that the evidence of the subsequent incident was

inadmissible because its probative value was outweighed by the danger of unfair prejudice. FED . R.

EVID . 404(b) requires the district court to balance the probative value of the evidence against its risk

of having a prejudicial effect, but “[b]road discretion is given to district courts in determinations of

admissibility based on considerations of relevance and prejudice, and those decisions will not be

lightly overruled.” United States v. Chambers, 441 F.3d 438, 455 (6th Cir. 2006); see also United

States v. Zipkin, 729 F.2d 384, 390 (6th Cir. 1984) (“If judicial self-restraint is ever desirable, it is

when a Rule 403 [prejudicial effect] analysis of a trial court is reviewed by an appellate tribunal.”).

Here, defendant has failed to show that the district court abused its discretion in balancing the

probative verses the prejudicial effects of the evidence of Mitchell’s subsequent arrest, particularly

in light of the limiting instruction the court gave the jury.

        The government argues further that even if the district court erred, such error was harmless

because of the overwhelming evidence of guilt, including defendant’s own admission that he


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No. 07-6105
United States v. Mitchell


possessed the contraband. We agree that any error would be harmless under these circumstances in

light of the other evidence admitted at trial.

                                                    IV.

        Finally, Mitchell argues that the evidence presented at trial was insufficient for a reasonable

juror to conclude beyond a reasonable doubt that he possessed the firearms and narcotics.

Specifically, Mitchell argues that because the contraband was found inside Rush’s apartment, it is

just as likely that it belonged to her as to him.

        A defendant who alleges that the evidence produced at trial was insufficient to support his

conviction bears a “very heavy burden.” United States v. Spearman, 186 F.3d 743, 746 (6th Cir.

1999). The Supreme Court has held that when considering such appeals, “the relevant question is

whether after viewing the evidence in the light most favorable to the prosecution, any rational trier

of fact could have found the essential elements of the crime beyond a reasonable doubt.” Jackson

v. Virginia, 443 U.S. 307, 319 (1979); United States v. Abboud, 438 F.3d 554, 589 (6th Cir. 2006).

        In the present case, we hold that there was ample evidence to support defendant’s conviction.

Ballard testified that Mitchell admitted to possessing both firearms and all of the drugs found in the

apartment. Furthermore, police discovered the contraband within his reach of a box containing a

digital scale, ammunition, and Mitchell’s social security card, in a room that contained male clothing.

While it is possible that there are other explanations for the location of these items, we are required

to “draw all available inferences and resolve all issues of credibility in favor of the jury’s verdict,




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No. 07-6105
United States v. Mitchell


and it is not necessary for us to exclude every reasonable hypothesis but guilt.” United States v.

Avery, 128 F.3d 966, 971 (6th Cir. 1997).

                                                V.

       For the reasons stated, we affirm the judgment of the district court.




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