                NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                           File Name: 10a0564n.06

                                            No. 09-5220

                           UNITED STATES COURT OF APPEALS
                                FOR THE SIXTH CIRCUIT

UNITED STATES OF AMERICA,                                                            FILED
                                                                                  Aug 27, 2010
       Plaintiff-Appellee,                                                  LEONARD GREEN, Clerk

v.                                                     ON APPEAL FROM THE UNITED
                                                       STATES DISTRICT COURT FOR THE
DARIUS HARRIS,                                         EASTERN DISTRICT OF KENTUCKY

       Defendant-Appellant.
                                                                         OPINION
                                                /


BEFORE:        COLE and CLAY, Circuit Judges; KATZ, District Judge.*

       CLAY, Circuit Judge. Defendant Darius Harris appeals his conviction for possessing a

firearm in furtherance of a drug trafficking offense in violation of 18 U.S.C. § 924(c)(1). Defendant

pleaded guilty to possessing five or more grams of cocaine base with intent to distribute in violation

of 21 U.S.C. § 841(a)(1) but proceeded to a bench trial on the firearm charge. Defendant challenges

the sufficiency of the evidence presented on the gun count and the admission of expert testimony

from a police detective. For the following reasons, Defendant’s conviction is AFFIRMED.

                                         BACKGROUND

       On March 23, 2006, police sought out Defendant for questioning in a homicide investigation.

During an interview away from his residence, Defendant admitted that he sold narcotics from his




       *
        The Honorable David A. Katz, United States District Judge for the Northern District of
Ohio, sitting by designation.
residence and that he owned several firearms. Police executed a search warrant on Defendant’s

residence that evening. In executing the warrant, the police found multiple loaded handguns, a clip

containing 9 millimeter ammunition, and a baggie of crack cocaine on top of a dresser in the

basement. One of the handguns, a loaded .25 caliber pistol, was located only two to three inches

from the baggie of crack cocaine. The police found three loaded handguns inside an armoire

immediately adjacent to the dresser with the crack cocaine. The police also found a loaded rifle and

an unloaded 12 gauge shotgun.

       Defendant was indicted for possessing with the intent to distribute five or more grams of

crack cocaine and possessing a firearm in furtherance of the drug trafficking offense. Defendant

pleaded guilty to the drug trafficking charge on September 9, 2008 but chose to proceed to a bench

trial on the firearm offense. A bench trial was held on September 29, 2008.

        Harris admitted to owning both the drugs and the guns but argued that the guns were not

possessed to further his drug activities. Specifically, Defendant testified that he began collecting

guns before he sold drugs and that he shared his gun collecting hobby with his cousin, a soldier.1

According to Defendant, the guns were necessarily near the drugs because Defendant lived in the

one-room basement of a residence that included a sofa, washer/dryer, utility sink, dressers, and

several televisions sitting in front of one another.

       The government relied on Sergeant Bill Birkenhauer to provide expert testimony on

differences between gun collectors and drug dealers who own guns to further their drug trafficking

offenses. Birkenhauer testified that drug traffickers tend to have “cheaper,” small caliber handguns,

that they store in easily accessed locations, while collectors tend to put their guns in display

       1
         Defendant also argued that the handgun on top of the dresser belonged to his live-in
girlfriend, an Amanda Downs. The district court rejected this contention, and Defendant does not
contest that finding in this Court.
cabinets.2 Birkenhauer not only spoke in generalities but gave his specific opinion on the purpose

of Defendant’s guns.

       Q:      Based on your review of the evidence, discussions that you’ve had, your
       training, your experience, do you have an opinion, based upon a reasonable
       investigative certainty as a narcotics investigator, regarding the connection between
       these guns and the crack cocaine that was found in the residence with the guns?

       A:      I do

       Q:      What is that opinion?

       A:      I believe the guns were used to protect drugs and their proceeds.


(R. 59 at 80). At trial, Defendant did not object to Birkenhauer’s statement. Defendant had

previously lodged an objection as to Birkenhauer’s qualifications to testify as an expert witness. The

district court overruled the objection, inviting Defense counsel to discuss Birkenhauer’s

qualifications on cross-examination.

       The district court issued Findings of Fact, Conclusions of Law, and a Verdict on September

30, 2008 that found Defendant guilty of possessing a firearm in furtherance of a drug trafficking

offense. The district court specifically found that Defendant lacked credibility in testifying that the

guns were possessed for collection purposes. Defendant was subsequently sentenced to 124 months

of imprisonment, sixty months for the drug offense and sixty-four months, to run consecutively, for

the gun offense. This timely appeal followed.




       2
        This testimony may be somewhat problematic because it presupposes that poorer people
cannot collect guns, since people with less money who exercise their right to own a gun will
undoubtedly have “cheap” guns.
                                            DISCUSSION

A.      Sufficiency of the Evidence

        In reviewing the sufficiency of the evidence after a bench trial, “the test is whether the

evidence is sufficient to justify the trial judge, as trier of facts, in concluding beyond a reasonable

doubt that the defendant was guilty.” United States v. Bashaw, 982 F.2d 168, 171 (6th Cir. 1992)

(citation and quotation omitted). In a criminal bench trial, “factual findings made by the trial judge

stand unless determined to be so clearly erroneous as to justify overturning the conviction.” United

States v. Baydoun, 984 F.2d 175, 179 (6th Cir. 1993). “When reviewing a conviction on appeal, this

Court resolves all conflicts in the testimony in favor of the government and draws every reasonable

inference in its favor.” United States v. Doe, 226 F.3d 672, 680 (6th Cir. 2000).

        Defendant argues that the government failed to produce sufficient evidence of a nexus

between the firearms and the drug trafficking offense. This Court’s case law is clear that possession

of a firearm by a drug trafficker is insufficient to violate the relevant statute. Section 924(c)(1)

requires possession “in furtherance of” the offense, which shows that “Congress intended a specific

nexus between the gun and the crime charged.” United States v. Mackey, 265 F.3d 457, 462 (6th Cir.

2001). Defendant argues that the government only showed proximity, and since Defendant lived in

a small, cluttered residence, any firearm he possessed for a legitimate reason still would have been

close in proximity to any drugs.

        The foundation of Defendant’s argument is language in Mackey that “the possession of a

firearm on the same premises as a drug transaction would not, without a showing of a connection

between the two, sustain a § 924(c) conviction.” Id. However, while proximity is not by itself

sufficient, other factors in Mackey weigh against Defendant. The Court recognized that the gun

“must be strategically located so that it is quickly and easily available for use” and that other factors
to consider were “whether the gun was loaded, the type of weapon, the legality of its possession, the

type of drug activity conducted, and the time and circumstances under which the firearm was found.”

Id.

       In this case, three crucial pieces of evidence counsel in favor of affirming the conviction.

First, Defendant admitted to dealing drugs out of the window of his basement residence. Therefore,

he did not merely store both drugs and guns at his residence, but the residence itself was central to

his drug activity. Second, at least one gun was located in extremely close physical proximity to crack

cocaine. Detective Angela Keller testified that one gun was found immediately adjacent to crack

cocaine on a dresser in Defendant’s residence. Third, all five handguns that were found were loaded

and not safely secured, meaning they could be used immediately to protect Defendant’s drugs and

were not consistent with how gun collectors normally store their guns.

       Many of these same factors were also present in United States v. Couch, 367 F.3d 557 (6th

Cir. 2004), where this Court found sufficient evidence supported the defendant’s conviction. In

Couch, police discovered a loaded assault rifle in the living room where the defendant was arrested

in possession of Oxycontin and methamphetamine. In addition, several guns were found in a garage

where the defendant conducted drug sales. Finally, police testified that one of the firearms was

commonly associated with drug trafficking. Based on these facts, the court concluded that “any

rational trier of fact could have concluded that the United States proved the elements of the crime

beyond a reasonable doubt.” Id. at 561.

       Defendant ignores Couch and instead relies on the readily distinguishable United States v.

Bailey, 553 F.3d 940 (6th Cir. 2009). In Bailey, this Court reversed a conviction finding insufficient

circumstantial evidence to support the conviction for possessing a gun in furtherance of a drug crime.

The government in Bailey, however, failed to ever prove that the defendant even possessed the gun,
an undisputed fact in this case. In fact, Bailey cuts against Defendant. The gun at issue in that case

was found underneath the seat of the defendant’s car, and the Court found that “if the government

had produced sufficient evidence to prove possession, then the fact that the gun was loaded and

located underneath [defendant’s] seat would likely demonstrate that [defendant] possessed the gun

in furtherance of his drug trafficking crime.” Id. at 950.

       Defendant is therefore reliant only on the fact that this Court has held that possession by itself

is insufficient. See Mackey, 265 F.3d at 462; United States v. Penney, 576 F.3d 297, 315 (6th Cir.

2009). But, the government did not only show mere possession. It demonstrated that Defendant

possessed guns in close proximity to drugs in a location that was used to deal drugs. In addition, an

officer testified that the types of guns that Defendant owned were used by drug dealers and that the

types of guns and methods of storing them were not consistent with a gun collector, Defendant’s

purported explanation for owning the relevant guns. The district court readily understood the proper

standard and, in fact, found that Defendant’s shotgun, which was located in the residence, was not

used in furtherance of his drug crimes. The district court distinguished the shotgun from the other

firearms because it was unloaded. All told, while the circumstantial evidence beyond mere proximity

did not compel a finding that Defendant violated § 924(c), it was assuredly sufficient to allow the

district court to find that the gun was used in furtherance of his drug crime.

B.     Improperly Admitted Expert Testimony

       Defendant also challenges the admission of testimony by the government’s expert,

Birkenhauer, as violating Federal Rule of Evidence 704(b). When the testimony was given,

Defendant’s counsel did not object on that basis. Defendant’s only objection was that Birkenhauer

was not qualified.     The district court instructed Defendant’s counsel that it could probe

Birkenhauer’s qualifications on cross-examination. At no point did Defendant’s counsel argue that
the evidence was impermissible under Rule 704(b). Since Defendant failed to make his 704(b)

objection to the district court, we review any alleged error under the “plain error” standard. “The

‘plain error’ rule . . . applies where a party objects to an evidentiary determination on specific

grounds in the trial court, but on appeal the party asserts new grounds challenging that

determination.” United States v. Demjanjuk, 367 F.3d 623, 629 (6th Cir. 2004) (quoting United

States v. Evans, 883 F.2d 496, 499 (6th Cir. 1989)). “To establish plain error, [Defendant] must

demonstrate that (1) an error occurred; (2) the error was obvious or clear; (3) the error affected his

substantial rights; and (4) the error seriously affected the fairness, integrity, or public reputation of

the judicial proceedings.” United States v. Mayberry, 540 F.3d 506, 512 (6th Cir. 2008) (citation

and quotation omitted).

        Defendant argues that the district court erred by allowing the government’s purported expert,

Birkenhauer, to state his opinion that Defendant’s guns were used to protect drugs and their

proceeds. The first inquiry under plain error review is to determine whether the admission of this

evidence was even in error. Rule 704(b) states: “No expert witness testifying with respect to the

mental state or condition of a defendant in a criminal case may state an opinion or inference as to

whether the defendant did or did not have the mental state or condition constituting an element of

the crime charged . . .” The requirements of § 924(c) that the gun was possessed “in furtherance”

of a drug trafficking offense requires a determination of intent. See Dean v. United States, 129 S.Ct.

1849, 1857 (2009) (noting that the enhancements for violating § 924(c)(i) “clearly require proof of

intent”). Defendant contends therefore that Birkenhauer’s testimony opined as to Defendant’s intent

in possessing the guns and should have been barred by Rule 704(b).

        “Law enforcement officers may testify concerning the methods and techniques employed in

an area of criminal activity and to establish ‘modus operandi’ of particular crimes.” United States
v. Pearce, 912 F.2d 159, 163 (6th Cir.1990). “Rule 704(b), however, prevents an expert witness

from testifying that a defendant in a criminal case did or did not have the requisite mental state or

condition constituting an element of the crime charged, as ultimate issues are matters for the trier of

fact.” United States v. Combs, 369 F.3d 925, 940 (6th Cir. 2004). A crucial inquiry is “whether the

expert actually referred to the intent of the defendant or, instead, simply described in general terms

the common practices of those who clearly do possess the requisite intent, leaving unstated the

inference that the defendant, having been caught engaging in more or less the same practices, also

possessed the requisite intent.” Id. (quoting United States v. Frost, 125 F.3d 346, 383-84 (6th Cir.

1997)).

          Under this standard, the admission of Birkenhauer’s statement was a clear error. Birkenhauer

was unambiguously stating his opinion of the specific mental state of Defendant in terms of

Defendant’s purpose in possessing the guns. To repeat, the examination went as follows:

          Q:      Based on your review of the evidence, discussions that you’ve had, your
          training, your experience, do you have an opinion, based upon a reasonable
          investigative certainty as a narcotics investigator, regarding the connection between
          these guns and the crack cocaine that was found in the residence with the guns?

          A:     I do

          Q:     What is that opinion?

          A:     I believe the guns were used to protect drugs and their proceeds.

(R. 59 at 80) (emphasis added). That testimony is not describing “in general terms” the conduct of

other drug dealers but is instead offering a specific statement that gave Birkenhauer’s opinion as to

how Defendant used the guns at issue. “Rule 704(b) may be violated when the prosecutor’s question

is plainly designed to elicit the expert’s testimony about the mental state of the defendant, or when

the expert triggers the application of Rule 704(b) by directly referring to the defendant’s intent,
mental state, or mens rea.” United States v. Watson, 260 F.3d 301, 309 (3d Cir. 2001) (citations and

quotations omitted). Birkenhauer directly testified what he believed to be Defendant’s intent, namely

that Defendant’s guns “were used to protect drugs and their proceeds.”3

        To show plain error, however, Defendant must also show that the error affected a substantial

right. An error affected a substantial right if it “affected the outcome of the district court

proceedings.” United States v. Smith, 601 F.3d 530, 541 (6th Cir. 2010). Defendant’s best argument

for why the error should result in a reversal is that the district court specifically referred to

Birkenhauer’s opinion in both its written and oral decision rendering a verdict. Despite this obvious

mistake, consulting both the judge’s written and oral statements leaves the unmistakable impression

that the district court would have found Defendant guilty even without the improper testimony.

        The district court stated an explanation of its judgment orally and also issued findings of fact

and conclusions of law following the bench trial. Its oral and written decisions follow a similar tack.

First, the district court noted factors that this Court has considered relevant in determining whether

a gun was used in furtherance of a drug crime. See United States v. Mackey, 265 F.3d 457 (6th Cir.

2001). It then explained the circumstantial evidence that it relied on in finding against Defendant.

In its written order, the district court cited six pieces of circumstantial evidence for its determination




        3
         The day before oral argument in this case, the government submitted a letter pursuant to Fed.
R. App. P. 28(j). The letter cites a recent Eight Circuit case, United States v. Parish, 606 F.3d 480
(8th Cir. 2010). In that case, the court found that testimony from a detective that the amount of crack
cocaine “would be intended for distribution” was permissible. Id. at 491. The detective was
responding to the question of “whether just based on that amount, [the crack cocaine] would have
been intended for distribution or personal use?” Id. at 490-91. The court rejected the 404(b)
challenge because the detective’s “testimony concerned the amount; . . . he did not directly testify
to [defendant’s] intent, although the jury was free to infer the ultimate conclusion.” Id. at 491. In
this case, Birkenhauer’s challenged testimony was based on all of the factors specific to this case and
his view of what those factors said about Defendant’s intent.
that five of Defendant’s guns were possessed in furtherance of Defendant’s admitted drug

trafficking.

        1. Defendant’s admission to Det. McGuffey that he sold crack cocaine out of the
        basement of the residence;

        2. The location of the firearms in relation to the crack cocaine located on the dresser
        in the basement;

        3. The fact that the firearms were located in an area where Defendant’s drug
        transactions were known to occur, to wit, the basement;

        4. The presence of electronic scales and ammunition in the basement of the
        residence;

        5. The fact that the firearms were loaded; and

        6. The testimony of Sgt. Bill Birkenhauer with the Northern Kentucky Drug Strike
        Force who opined that drug dealers like Defendant use firearms to protect their drugs
        and drug proceeds. In this instance, Sgt. Birkenhauer opined that the firearms were
        possessed by Defendant for that purpose.

(R. 36 at 6).

        The list above gives a litany of reasons why the district court determined that the guns were

possessed in furtherance of Defendant’s drug activity. The improper testimony of Birkenhauer

constitutes only one of the six pieces of circumstantial evidence. Even more damaging for

Defendant, the district court elaborated on its conclusions for more than two additional pages without

referencing the improperly admitted testimony.4 The district court repeatedly stressed the close




        4
         The district court did state that “the testimony of Sgt. Birkenhauer supports the conclusion
that none of the guns seized from Defendant’s basement were possessed for collection purposes.”
(R. 36 at 8-9). However, this statement refers to Birkenhauer’s testimony that did not run afoul of
Rule 704(b). Birkenhauer permissibly described at length the practices of gun collectors as
contrasted to drug dealers. This testimony clearly motivated the district court’s second mention of
Birkenhauer, since the next sentence was: “Gun collectors do not leave their guns loaded without
safety features, and ordinarily store them in gun lockers.” Id.
proximity of the weapons to the drugs as well as the fact that all of the weapons were loaded, facts

that are highly indicative of improper purpose according to Mackey.

       In his oral statement, the district court gave its reasoned explanation for why it found five of

the six guns were used to further a drug crime and why it rejected that argument for an unloaded

shotgun. In this discussion, the district court discussed each gun and emphasized the proximity of

the guns to the drugs and whether they were loaded. These findings were based on the factors laid

out in Mackey, as well as Birkenhauer’s permissible testimony about the differences between the

habits of gun collectors and drug dealers. Four handguns were loaded and within a few feet of the

drugs. A rifle was further away, but “it was loaded and easily accessible, which distinguishes, at

least in the Court’s view, the other 12 gauge shotgun that was not loaded.” (R. 54 at 147). In

discussing why he rejected Defendant’s argument that he was collecting guns, the district court stated

“first and most significantly, the fact that each of these firearms were loaded gives the Court its

primary reason why I do not believe that these guns were for collection purposes.” Id.

        Based on the district court’s oral and written justification, we find that the district court

would have rendered the same verdict even if Birkenhauer had not been allowed to make the one

comment that violates Rule 704(b). The district court assuredly erred in relying on testimony that

clearly violated Rule 704(b), but the court’s improper reliance on Birkenhauer’s statement was only

one part of the lengthy justification the district court provided in rendering its decision. Therefore,

the error did not affect a substantial right, and Defendant’s conviction must be upheld.

                                          CONCLUSION

       For the foregoing reasons, Defendant’s conviction is AFFIRMED.
