                                                                        FILED
                                                            United States Court of Appeals
                                                                    Tenth Circuit
                    UNITED STATES COURT OF APPEALS
                                                                     July 7, 2010
                                TENTH CIRCUIT                   Elisabeth A. Shumaker
                                                                    Clerk of Court

UNITED STATES OF AMERICA,

          Plaintiff-Appellee,
                                                        No. 08-3260
v.
                                                    (District of Kansas )
                                             (D.C. No. 6:07-CR-10223-MLB-1 )
TODD R. GEHRINGER,

      Defendant-Appellant.




                            ORDER AND JUDGMENT *


Before MURPHY, Circuit Judge, McWILLIAMS, Senior Circuit Judge, and
GORSUCH, Circuit Judge.



      In a twelve count indictment filed in the United States District Court for the

District of Kansas on May 29, 2008, Todd Gehringer (“defendant’), was charged

with various counts of being a drug user in possession of firearms, possession of

drugs, possession of methamphetamine with intent to distribute, and possession of

a firearm during and in relation to a drug trafficking crime. These charges stem



      *
        This order and judgment is not binding precedent, except under the
doctrines of law of the case, res judicata, and collateral estoppel. It may be cited,
however, for its persuasive value consistent with Fed. R. App. P. 32.1 and 10th
Cir. R. 32.1.
from five separate incidents spanning from October 10, 2006 to May 25, 2007. A

jury trial was held and defendant was convicted on all counts. A Presentence

Report was prepared based on the 2008 Federal Sentencing Guidelines.

Defendant was sentenced to 240 months imprisonment.

      Defendant has raised three issues on appeal. First, whether the district

court abused its discretion in refusing to sever Counts 3-6. Second, whether there

was sufficient evidence presented at trial to support a conviction. And, third,

whether the district court erred in failing to instruct the jury that Counts 3, 4, and

9 require a mandatory minimum sentence. We do not believe the court erred in

its disposition of these matters, and therefore affirm the conviction and sentence

below.

                                       FACTS

      In July 2006 ATF agents and the Harvey County Sheriff’s Department

traveled to a house in reference to an investigation of stolen guns. A check

revealed that defendant occupied the residence. Defendant gave consent to search

the house for the stolen weapons and during the search officers found marijuana,

cocaine and various other illegal drugs. On October 10, 2006, officers were

patrolling for a stolen vehicle when one matching the description was seen

speeding and being driven erratically. A traffic stop was initiated and the officers

saw defendant exit the driver’s side door. A woman was in the passenger seat and

pointed to where defendant was hiding. Defendant was found and taken into

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custody. A search of defendant revealed $4000 in cash, and a search of the

vehicle revealed methamphetamine under the driver’s seat, other pills, empty

plastic baggies, a spoon, and an electric scale.

      On December 19, 2006, Wichita police officers witnessed a vehicle strike a

signpost in a parking lot. The officers stopped the vehicle, driven by defendant,

and performed a sobriety test.   Defendant was arrested for driving under the

influence. A firearm was observed in the passenger compartment as was

methamphetamine, marijuana, and prescription pills.

      On February 2, 2007, Kansas Highway Patrol attempted to stop a pickup

driven by defendant after a check revealed the vehicle was stolen. Defendant did

not stop, and led troopers on a pursuit through numerous neighborhoods.

Defendant nearly hit two vehicles, and eventually jumped out of the moving

vehicle causing it to spin out of control. Defendant fled on foot, discarding a

black object as he ran. Defendant ran into a frozen river and fell through the ice.

He was arrested and a search of his person revealed a baggie of methamphetamine

and the discarded item was determined to be an electronic scale.

      On February 26, 2007, agents of the Bureau of Alcohol Tobacco and

Firearms (ATF) contacted defendant in his driveway to question him about his

past arrests and drug use, and requested permission to search his residence for

firearms related to a burglary. Defendant did not want the agents to enter his

house. Eventually, defendant told agents he had three long guns and gave them

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permission to go into the house to verify these guns were not used in the burglary.

In the search of the house, agents recovered several long guns, handguns,

marijuana, and prescription pills.

      On May 25, 2007, Wichita Police Officers executed a search warrant at the

defendant’s residence and recovered a rifle, two shotguns, marijuana, small

amounts of methamphetamine and narcotics paraphernalia. On December 3,

2007, ATF agents were conducting surveillance of the defendant’s house in

anticipation of a search warrant for stolen firearms. Agents observed defendant

leave the house and go to a nearby restaurant. Agents went to defendant,

identified themselves, and defendant fled toward his residence. Defendant was

apprehended and taken to the ATF field office and interviewed. Defendant told

agents that he discarded narcotics during the chase and officers then found four

small clear plastic baggies containing methamphetamine and one baggie of

marijuana. During the interview defendant also gave agents permission to search

a storage unit, advising them that there was a backpack with four handguns inside

which he was given as payment for a car. During a search of the storage unit,

officers found six handguns, ammunition, and other items, all of which were

reported stolen in a previous burglary report received by WPD.

                         MOTION TO SEVER COUNTS

      Defendant first argues that the district court abused its discretion in

refusing to sever counts 3-6. Defendant moved for separate trials on those charges

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alleging that he would be prejudiced by trying all of the charges together.

Specifically, under Fed.R.Crim P. 14, a court may order separate trials if the

defendant is prejudiced by joinder of all counts and when a defendant can show

prejudice based on a willingness to testify on some counts but not others. United

States v. Martin, 18 F.3d 1515, 1518 (10th Cir. 1994). Defendant had proffered,

and ultimately testified at trial that he was not the driver of the vehicle that was

stopped on December 19, 2006 and that he did not know the vehicle contained

drugs or firearms which were the basis for Counts 3-6.      In moving to sever

counts 3-6, defendant argued that the only way to defend himself on those counts

was to testify; however, in taking the witness stand for that purpose, he could be

subjected to cross-examination regarding his history of drug addiction which

would prejudice the jury on the other drug and firearm possession counts. In

denying the motion, the district court concluded that it had:

             ...heard Gehringer’s version of the events and cannot
             imagine how he believes a jury would find his version to
             be credible. In any event, his limited proffer does not
             place Gehringer in a position in which he would have to
             testify about controlled substances, unless Gehringer
             placed himself in that position. Simply testifying that he
             was not the person identified as driving the pickup does
             not equate to testimony concerning whether Gehringer is
             a drug addict.

      A defendant bears a heavy burden of showing real prejudice from the

joinder of counts and “in establishing real prejudice, the defendant must

demonstrate that the alleged prejudice he suffered outweighed the expense and

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inconvenience of separate trials.” United States v. Martin, 18 F.3d at 1518; see

also United States v. Muniz, 1 F.3d 1018, 1023 (10th Cir. 1993). The district

court did not abuse its discretion in denying severance.

                      SUFFICIENCY OF THE EVIDENCE

      Defendant next argues that the evidence presented at trial was not sufficient

to sustain his conviction for possession with intent to distribute 5 grams or more

of methamphetamine as charged in Count 9. At trial, Officer Cooper of the

Wichita Police Department testified that he saw a truck matching the description

of a stolen vehicle and stopped it for failing to use a turn signal. According to the

officer, defendant exited the driver’s door and the officer then talked to the

passenger, Ms Starks. She told the officer where defendant was and the officer

spoke with him. Defendant appeared nervous and stated he was driving without a

valid licence. Other officers arrived on the scene and defendant was taken into

custody. When defendant was searched, close to $5000 was found in his pocket,

including ninety seven $20 bills. Officers also recovered several baggies of

methamphetamine underneath the driver’s seat. Ms. Starks testified that she was

the passenger in the car which was driven by defendant, and did not know of any

drugs in the car. The vehicle was not registered to the defendant but did have the

same licence plate as was on the vehicle involved in the incident which was the

basis for the charges in Counts 3-6.

      Defendant argues that the government failed to prove constructive

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possession of the methamphetamine because there was no “connection or nexus”

between the defendant and the contraband as required by United States v.

Heckard, 238 F.3d 1222 (10thCir. 2001) and his mere presence in the car was

insufficient. At trial the arresting officer testified that defendant was the driver of

the car. Ms. Starks also testified that she was picked up by the defendant, that

she did not know of any drugs in the car, and never used methamphetamine. The

jury was given a proper instruction on constructive possession and without re-

weighing the evidence, this Court must accept the jury’s decision that the

defendant possessed the methamphetamine.

         As to Counts 3, 4, 5 and 6, defendant argues that there was insufficient

evidence that he was the “operator or owner of the pickup truck in this incident.”

Therefore, he argues, a jury could not have found he knowingly possessed the

drugs or guns involved. A rational jury could have found that defendant was the

sole occupant and driver of the truck based on Officer McVay’s testimony at trial.

Officer McVay testified that he followed the truck into a parking lot, and

identified the driver as defendant. The jury was entitled to believe and credit

officer McVay’s testimony that defendant was the driver and could have

rationally concluded and inferred that he was also the sole possessor of the drugs

and guns found inside. See United States v. Mills, 29 F.3d 545, 549 (10th Cir.

1994).




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                    MANDATORY MINIMUM SENTENCE

      At trial, defendant’s counsel requested that the court instruct the jury

regarding the fact that their verdict as to Counts 3, 4 and 9, if guilty, would

require mandatory minimum sentences. Defendant concedes that this Court has

held that “unless a statute specifically requires jury participation in determining

punishment, the jury shall not be informed of the possible penalties.” United

States v. Parrish, 925 F.2d 1293, 1299 (10th Cir. 1991); see also, United States v.

Greer, 620 F.2d 1383, 1384 (10th Cir. 1980). However, defendant argues that the

reasoning of United States v. Polizzi, 549 F.Supp.2d 308 (E.D. N.Y. 2008), that

under the Sixth Amendment of the Constitution, the jury should know the

sentencing impact of its decision, applies and should be considered. In light of

established Tenth Circuit and Supreme Court authorities, the district court had no

discretion to instruct the jury on the sentencing penalties, and therefore did not

abuse its discretion in denying the defendant’s request.

      Judgment Affirmed.



                                       ENTERED FOR THE COURT



                                       ROBERT H. McWILLIAMS
                                       Senior Circuit Judge




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