                                                                         FILED
                                                             United States Court of Appeals
                                                                     Tenth Circuit

                                                                    April 10, 2009
                     UNITED STATES COURT OF APPEALS
                                                  Elisabeth A. Shumaker
                                                                     Clerk of Court
                                   TENTH CIRCUIT


 UNITED STATES OF AMERICA,

          Plaintiff-Appellee,
                                                          No. 08-5015
                                               (D.C. No. 4:07-CR-00037-CVE-1)
 v.
                                                          (N.D. Okla.)
 DUSTIN ROBERT EASTOM,

          Defendant-Appellant.


                                ORDER AND JUDGMENT *


Before HARTZ, HOLLOWAY, and O’BRIEN, Circuit Judges.


                                   I. INTRODUCTION

      Defendant–appellant Dustin Robert Eastom appeals his convictions of

possession of methamphetamine with the intent to distribute, in violation of 21

U.S.C. § 841(a)(1) and (b)(1)(C), and possession of firearms in furtherance of a drug

trafficking crime, in violation of 18 U.S.C. § 924(c)(1)(A)(I). He asserts that (1) his

motion to suppress was improperly denied; (2) testimony was improperly excluded

at trial; and (3) there was insufficient evidence to support either conviction. We


      *
       This order and judgment is not binding precedent except under the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.
have jurisdiction under 28 U.S.C. § 1291, and affirm.

                                II. BACKGROUND

                           A. The Motion to Suppress 1

      Mr. Eastom moved to suppress evidence obtained from his house after a police

search and various incriminating statements he made to the police. The testimony

of law enforcement personnel at the suppression hearing established the following:

In January 2007, Officer Leland Ashley of the Tulsa Police Department received

information about someone dealing drugs out of Mr. Eastom’s residence. He decided

to initiate contact with the assistance of three other Tulsa police officers and an ATF

special agent.

      Officer Ashley knocked on the door (with Officers Jeff Henderson and Shawn

Hickey close by), and it was answered by a woman named Ladonna Wynn. Ms.

Wynn lived at Mr. Eastom’s house along with Mr. Eastom’s daughter (who was also

present when the officers arrived). The officers’ guns were not drawn, nor were they

visible. Using a “normal conversation type voice,” Officer Ashley identified himself

and said he was investigating a tip that there were drug sales from the residence. On

direct examination, Officer Ashley stated that he asked if Ms. Wynn had a problem


      1
        We summarize the pertinent evidence offered at the suppression hearing in
the light most favorable to the government. See United States v. Carter, 511 F.3d
1264, 1267 (10th Cir. 2008) (“In reviewing a district court’s denial of a motion to
suppress, we view the evidence in the light most favorable to the government . . .
.”).


                                          -2-
with them looking for drugs. Ms. Wynn said she did not. However, on cross-

examination, Officer Ashley clarified that he asked if they could come inside and

look around, and Ms. Wynn said she didn’t care. Officer Henderson was unable to

recall the exact words used.

      The search of the house revealed methamphetamine and several firearms, and

the officers brought the contraband into Mr. Eastom’s living room.           Shortly

thereafter, Ms. Wynn wrote a witness statement. Officer Ashley asked her if she had

given them consent to search the house, and Ms. Wynn replied that she had. Officer

Ashley then told her she needed to put that information in the statement, and she did

so.

      Officer Ashley testified that the police did not threaten Ms. Wynn. The only

other officer to speak to her other than Officer Ashley was Officer Henderson, and

he used a regular conversation voice when speaking to Ms. Wynn.              Officer

Henderson (who was present when Ms. Wynn wrote her statement) testified that he

never heard any officers threaten Ms. Wynn.

      While the police were still at his house, Mr. Eastom arrived. The police drew

their weapons (they had not drawn their weapons before this time), laid Mr. Eastom

on the floor, and handcuffed Mr. Eastom. The officers’ guns were then holstered.

The police explained why they were there, and Mr. Eastom “immediately” began

making statements about not wanting to go to jail. There was no testimony that this

statement was in response to any questions by law enforcement.

                                         -3-
      Officer Ashley asked if Mr. Eastom would be willing to follow the police to

a police station to fill out a witness statement. Mr. Eastom agreed and followed in

his own vehicle. Officer Ashley testified that he never threatened or intimidated Mr.

Eastom, nor did he tell Mr. Eastom anything that would require Mr. Eastom to

cooperate against his will.     At the station, Mr. Eastom read and signed a

“Notification of Rights Waiver.” Mr. Eastom completed a witness statement that

indicated that the methamphetamine found at his home belonged to him. Mr. Eastom

never indicated that he did not want to cooperate.

      Ms. Wynn’s recollection of the events was significantly different. Ms. Wynn

testified that Officer Ashley pushed his way into Mr. Eastom’s house without any

discussion about the him coming into the house. Further, she testified that when

later asked for permission to search, she denied her permission. She explained that

Officer Ashley told her if she did not let him search they would get a warrant to

search. She also testified that Officer Ashley showed her handcuffs and told her that

if she did not cooperate he would arrest her and send Mr. Eastom’s daughter into

DHS custody. Ms. Wynn testified that she was scared.

      She also testified that Officer Ashley began questioning Mr. Eastom shortly

after Mr. Eastom arrived at the house, but she could not hear the questioning.

Shortly after the search, Mr. Eastom told his attorney about the search, and Mr.

Eastom’s attorney drafted affidavits for Mr. Eastom and Ms. Wynn.

      The district judge found the testimony of the law enforcement involved in the

                                         -4-
search of Mr. Eastom’s home to be credible, and found Ms. Wynn’s version of the

events to be not credible. The district judge found that Ms. Wynn had voluntarily

consented to the search of the house. She further concluded that Mr. Eastom had not

shown that he was interrogated or that the police engaged in conduct that was so

inherently coercive that evidence should be suppressed. The district judge therefore

denied Mr. Eastom’s motion to suppress.

                                    B. The Trial 2

      At trial, Officer Henderson testified that he discovered a black duffle bag in

the central bedroom of Mr. Eastom’s house. Inside the duffle bag he found a .44

Magnum revolver, a .22 revolver, a pill bottle, and two sets of digital scales. The

pill bottle contained 5.78 grams of a substance a forensic scientist testified contained

methamphetamine. Officer Henderson explained that digital scales are used in the

distribution of narcotics, and that he had never heard of a user weighing the narcotics

before using them. He also testified that a surveillance camera was mounted on the

front of Mr. Eastom’s home, and that surveillance cameras and monitors were

typically only used for distribution purposes.

      ATF Special Agent Brandon McFadden testified that Mr. Eastom told the

police at his house that he could “do” a drug dealer named Shane Fields and set up

      2
       The evidence admitted at trial is summarized in the light most favorable to
the government. See United States v. Williams, 403 F.3d 1188, 1194 (10th Cir.
2005) (holding that when reviewing a challenge to the sufficiency of the
evidence, all evidence is viewed in the light most favorable to the government).


                                          -5-
the dealer for an amount of methamphetamine. Special Agent McFadden testified

that he had been present in interviews where Mr. Fields’s name had been brought up

as a large-scale methamphetamine dealer. Officer Henderson testified that a major

distributor of methamphetamine would not likely deal directly with a user.

      Officer Henderson also testified that a quarter gram of methamphetamine was

a typical dosage unit, but that it was possible that a user might purchase more than

one dosage unit at a time.         He testified that he had learned from users that

methamphetamine is “usually purchased on the amount you’re going to use in one

setting or at the time you plan to use it.” Rec., vol. IV at 91. He explained that the

largest amount that he had known a user to purchase at one time for ingestion was

3.5 grams.

      During Officer Henderson’s cross-examination, the defense counsel asked:

      Q.      Would you agree with me that there isn’t a specific bright line
              one could draw and say a certain quantity, less, under this line,
              would be always for personal use; and a certain quantity above
              this line would be always for distribution purposes? Would you
              agree with that?
      A.     I would agree for just specifically talking about quantity.
      Q.     Just quantity of drugs alone, correct?
      A.     Yes, sir.

Officer Henderson also testified that in his opinion under the facts of the case the

amount of drugs found was consistent with distribution purposes.

      In addition, Mr. Eastom’s written statement that he made at the police station

was read to the jury. It stated:


                                           -6-
      On 2/8/07, police officers came to my house and found several guns and
      some weed and meth. I acknowledge that it’s mine and not LaDonna
      Wynn’s. A chick brought over some stuff that was hers, guns and some
      black bags and a white box. I wrote this on my own free will. The only
      weapon that the officer recovered that was mine was the [Sig Sauer].

      During the presentation of his case, Mr. Eastom attempted to admit the

testimony of a drug counselor named Rick Murray. Mr. Murray would have testified

that he had encountered individuals who had purchased more than an eighth of an

ounce (i.e., approximately 3.54 grams) at a given time for personal use. The district

judge concluded that Mr. Murray’s testimony was not reliable for purposes of giving

an expert opinion, and refused to admit the testimony.

      The jury found Mr. Eastom guilty of both possession of methamphetamine

with the intent to distribute and possession of firearms in furtherance of a drug

trafficking crime. This appeal followed.

                                III. DISCUSSION

                      A. Denial of the Motion to Suppress

      In assessing a denial of a motion to suppress, this court accepts the factual

findings of the district judge, and his or her determinations of witness credibility,

unless they are clearly erroneous. United States v. Chavez, 534 F.3d 1338, 1343

(10th Cir. 2008).    We view the evidence in the light most favorable to the

government. United States v. Andrus, 483 F.3d 711, 716 (10th Cir. 2007). We may

consider evidence introduced at the suppression hearing, and any evidence properly

presented at trial. United States v. Jones, 523 F.3d 1235, 1239 (10th Cir. 2008). Mr.

                                         -7-
Eastom argues that his motion to suppress should have been granted because (1) Ms.

Wynn did not voluntarily consent to the search, and (2) certain statements he made

were obtained in violation of his Fifth Amendment rights.

               1. Voluntariness of Ms. Wynn’s Consent to Search

      Mr. Eastom argues that Ms. Wynn’s consent to search Mr. Eastom’s home was

not voluntary, and therefore the evidence obtained as a result of the search should

have been suppressed. He first asserts that the district judge’s finding that the

officers’ testimony was more credible than Ms. Wynn’s testimony is clearly

erroneous. In support, he points to an affidavit that was executed by Ms. Wynn

concerning the search shortly after the search. He further argues that the consent’s

involuntariness is shown by the presence of five officers at the home of a young

woman with a child, and by the failure to make known the right to refuse consent.

We disagree.

      Subject to limited exceptions, the Fourth Amendment prohibits warrantless

searches of an individual’s home or possessions. Andrus, 483 F.3d at 716. However,

the “‘Fourth Amendment recognizes a valid warrantless entry and search of premises

when police obtain the voluntary consent of an occupant who shares, or is reasonably

believed to share, authority over the area in common with a co-occupant who later

objects to the use of evidence so obtained.’” United States v. Thompson, 524 F.3d

1126, 1132 (10th Cir. 2008) (quoting Georgia v. Randolph, 547 U.S. 103, 106

(2006)).

                                        -8-
      Importantly, “the Fourth Amendment requires that consent be voluntary and

‘not be coerced, by explicit or implicit means, by implied threat or covert force.’”

Id. at 1133 (quoting Schneckloth v. Bustamonte, 412 U.S. 218, 228 (1973)). The

voluntariness of consent must be determined from the totality of the circumstances,

and the government bears the burden of proof on the issue. United States v. Iribe,

11 F.3d 1553, 1557 (10th Cir. 1993). The government must show that the consent

was unequivocal and specific, and that it was freely and intelligently given. Id.

Voluntariness is a factual finding, and we review the district judge’s determination

of voluntariness for clear error. Thompson, 524 F.3d at 1133. The presence of more

than one officer increases the coerciveness of an encounter, but that alone does not

render consent per se involuntary. Id. at 1134. Further, “‘knowledge of the right to

refuse consent’ is not ‘a necessary prerequisite to demonstrating a “voluntary”

consent.’” Id. (quoting Schneckloth, 412 U.S. at 232–33).

      The district judge did not clearly err when she found that Ms. Wynn

voluntarily consented to the search of Mr. Eastom’s home. First, the district judge

did not clearly err when she found the officers to be credible, and found Ms. Wynn

to be not credible. The fact that Mr. Eastom’s attorney prepared affidavits shortly

after the events that may corroborate Ms. Wynn’s version of events does not show

that her testimony is more credible than the officers’ testimony. The district judge

was present during the live testimony of the witnesses. Just as the district judge was

permitted to find Ms. Wynn’s testimony not credible, she was permitted to discount

                                         -9-
the credibility of Ms. Wynn’s earlier affidavit.

      Second, Officer Ashley testified that Ms. Wynn said she didn’t care if the

officers came inside and looked around. The officers also testified that during the

encounter their guns were not visible, they used a normal conversation voice, and

they did not threaten Ms. Wynn. While the presence of more than one officer at Mr.

Eastom’s home may have increased the coerciveness of the encounter, this fact alone

does not render consent per se involuntary. See Thompson, 524 F.3d at 1134.

Moreover, Ms. Wynn’s knowledge of the right to refuse consent is not a necessary

ingredient of a voluntary consent. See id. Therefore, the district judge did not

clearly err in finding voluntary consent here.

                         2. Fifth Amendment Violations

      Mr. Eastom clarified at oral argument that he is appealing the denial of the

suppression of (1) his statement at his house that he did not want to go to jail, and

(2) his written statement given at the police station. 3 He argues that his Fifth

Amendment rights were violated in two ways. First, he argues that both statements

were made involuntarily because the police “were effectively holding the threat of

charges over his head.” Second, he asserts that the statement given at his house

resulted from an improper interrogation because he was “confronted with seized

      3
       At oral argument, when clarifying which statements he made at his house
that he was challenging, Mr. Eastom mistakenly included among the challenged
statements his statement that the drugs belonged to him rather than his girlfriend.
This statement was actually made in the written statement.


                                         -10-
contraband.” We conclude that the Fifth Amendment did not prohibit the admission

of either of the challenged statements.

      Even if a defendant’s Miranda rights are not violated, his statements are

inadmissible if they were made involuntarily. United States v. Chalan, 812 F.2d

1302, 1307 (10th Cir. 1987). We review the district judge’s determination of the

ultimate issue of voluntariness de novo, viewing the totality of the circumstances.

United States v. Muniz, 1 F.3d 1018, 1021–22 (10th Cir. 1993). The burden of proof

is on the government to prove the statements were voluntary. Id. at 1021.

      Further, if a person voluntarily speaks without interrogation by an officer, the

Fifth Amendment’s protection is not at issue, and the statements are admissible. Id.

at 1022; see United States v. Torres-Guevara, 147 F.3d 1261, 1266 (10th Cir. 1998)

(“Because the statement was volunteered, rather than given in response to any

interrogation, [the] statement also was admissible in the absence of Miranda

warnings.”).

      Here, both statements were given voluntarily by Mr. Eastom. Officer Ashley

testified that he never threatened or intimidated Mr. Eastom. In addition, Mr.

Eastom never indicated that he did not want to cooperate. In fact, Mr. Eastom read

and signed a “Notification of Rights Waiver” before making his written statement.

      Mr. Eastom argues that his statements were involuntary because the officers

were “effectively holding the threat of charges over his head.” In effect, he argues

that a criminal suspect’s knowledge of the potential for criminal prosecution is alone

                                          -11-
sufficient to cause an individual’s statements to be involuntary. However, if this

were true, incriminating statements by individuals suspected of illegal activities

would rarely be admissible.

      The record also demonstrates that the challenged statement given by Mr.

Eastom at his house was not obtained as a result of interrogation. Mr. Eastom’s

being “confronted with seized contraband” did not involve any questioning. Instead,

it appears that this “confrontation” was the police explanation to him of why they

were in his home and the possible presence of the seized items in his living room.

This is alone insufficient to constitute interrogation.   Therefore, Mr. Eastom’s

statements were not rendered inadmissible by the Fifth Amendment. Cf. Orozco v.

Texas, 394 U.S. 324, 326 (1969) (holding that the Fifth Amendment, as construed in

Miranda v. Arizona, required the exclusion of statements given by the defendant

while he was questioned on his own bed by four officers).

                   B. Exclusion of Rick Murray’s Testimony

      Mr. Eastom argues that the district judge erred in excluding the testimony of

Rick Murray, an experienced drug counselor, and that this erroneous exclusion

denied him an opportunity to present his defense. He asserts that the testimony

would have impeached Officer Henderson’s testimony and served as evidence that

Mr. Eastom’s methamphetamine possession was consistent with personal use. We

find no reversible error in the exclusion.

      Under Fed. R. Evid. 702, a district judge must be satisfied that the proposed

                                         -12-
expert testimony is both reliable and relevant before permitting a jury to assess the

testimony. United States v. Rodriguez-Felix, 450 F.3d 1117, 1122 (10th Cir. 2006).

The district judge’s determination of reliability is reviewed for abuse of discretion.

Id. However, a non-constitutionally erroneous decision to exclude evidence is

considered harmless unless a substantial right of a party is affected. United States

v. Velarde, 214 F.3d 1204, 1211 (10th Cir. 2000). A substantial right is affected

when the error had a substantial influence on the outcome or leaves the court in

grave doubt as to whether it had such an effect. Id.

      The question of whether a constitutional violation has occurred is reviewed de

novo. United States v. Solomon, 399 F.3d 1231, 1239 (10th Cir. 2005). The right

to present a defense arises under the Fifth Amendment right to due process and the

Sixth Amendment right to compulsory process. Id. We will reverse the district

judge’s decision excluding evidence only if the proffered evidence is both relevant

and material (i.e., its exclusion would affect a trial’s outcome). United States v.

Hernandez-Hernandez, 519 F.3d 1236, 1238–39 (10th Cir. 2008), cert. denied, 129

S. Ct. 162 (2008).

      Here, even assuming that the district judge erred by excluding the testimony,

we conclude that the exclusion was harmless and Mr. Eastom’s right to present a

defense was not violated. Mr. Murray’s testimony would not have affected the trial’s

outcome. See Velarde, 214 F.3d at 1211 (holding that an erroneous decision to

exclude evidence is considered harmless unless the error had a substantial influence

                                         -13-
on the outcome or leaves this court in grave doubt as to whether it had such an

effect); Hernandez-Hernandez, 519 F.3d at 1238–39 (holding that a decision

excluding evidence will be reversed on constitutional grounds only if the evidence

affects the trial’s outcome).

      At trial, Officer Henderson testified that methamphetamine is “usually

purchased on the amount you’re going to use in one setting or at the time you plan

to use it.” Rec., vol. IV at 91. He also testified that the largest amount that he had

known a user to purchase at one time for ingestion was 3.5 grams. This testimony

implies that if more than 3.5 grams are found on an individual, those drugs are

probably for distribution rather than personal use.

      However, on cross-examination, Officer Henderson admitted that he agreed

that there was not a bright line one could draw to say that possession of drugs in a

quantity above that line would always be for distribution purposes. Therefore,

Officer Henderson left open the possibility that the 5.7 grams of methamphetamine

found at Mr. Eastom’s home were for personal use.

      Mr. Murray would have testified that he had met individuals that had

purchased more than 3.54 grams at a given time for personal use. Like Officer

Henderson’s testimony, Mr. Murray’s testimony points to the possibility that the 5.7

grams of methamphetamine found at Mr. Eastom’s home were for personal use. In

other words, far from impeaching Officer Henderson’s testimony, Mr. Murray’s

testimony would have essentially been cumulative.

                                         -14-
        Had Mr. Murray’s testimony been presented to the jury, we are convinced it

would not have altered the pool of evidence sufficiently to affect the outcome of the

trial. Even with Mr. Murray’s cumulative testimony, evidence that strongly indicates

that the 5.7 grams of methamphetamine were for distribution would have remained

before the jury. For example, the methamphetamine was found in a bag containing

digital scales and firearms. Therefore, the exclusion is not reversible error.

                           C. Sufficiency of the Evidence

        We review sufficiency of the evidence claims de novo. Williams, 403 F.3d at

1194.    In doing so, we view all evidence in the light most favorable to the

government, ultimately determining whether the evidence and all reasonable

inferences drawn therefrom could allow a reasonable jury to find the defendant guilty

beyond a reasonable doubt. Id.

        “‘The jury, as fact finder, has discretion to resolve all conflicting testimony,

weigh the evidence, and draw inferences from the basic facts to the ultimate facts.’”

United States v. Anderson, 189 F.3d 1201, 1205 (10th Cir. 1999) (quoting United

States v. Valadez-Gallegos, 162 F.3d 1256, 1262 (10th Cir. 1998)). We do not weigh

conflicting evidence or make credibility determinations, as these are exclusively

functions of the jury. United States v. Zapata, 546 F.3d 1179, 1188 (10th Cir. 2008).

We also do not review the evidence in “bits and pieces,” but we evaluate the

sufficiency of the evidence by considering the collective inferences to be drawn from

the evidence as a whole. United States v. Parker, _ F.3d _, _ (10th Cir. 2009). Mr.

                                          -15-
Eastom argues that insufficient evidence was presented to sustain either of his

convictions.

       1. Possession of Methamphetamine with the Intent to Distribute

      Mr. Eastom argues that there is insufficient evidence to sustain his conviction

for possession of methamphetamine with the intent to distribute. We conclude that

sufficient evidence was presented to convict Mr. Eastom of this offense.

      21 U.S.C. § 841(a)(1) makes it unlawful to knowingly or intentionally possess

with the intent to distribute a controlled substance. 21 U.S.C. § 841(a)(1). “To

sustain a conviction for possession with intent to distribute, the government must

prove beyond a reasonable doubt that a defendant: ‘(1) possessed the controlled

substance; (2) knew he possessed the controlled substance; and (3) intended to

distribute or dispense the controlled substance.’” United States v. Montgomery, 468

F.3d 715, 719 (10th Cir. 2006) (quoting United States v. McKissick, 204 F.3d 1282,

1291 (10th Cir. 2000)).

      Possession may be either actual or constructive. United States v. Triana, 477

F.3d 1189, 1194 (10th Cir. 2007), cert. denied, 127 S. Ct. 2928 (2007). Constructive

possession may be found if a person knowingly has ownership of the narcotics and

the premises where they are found. Id. However, when the contraband may be

attributed to more than one individual, constructive possession requires some

connection between the defendant and the contraband. Id. Further, the presence of

firearms and “tools of the drug trade,” such as scales, may go toward proving that

                                        -16-
a defendant possessed drugs with the intent to distribute. Id. at 1195; United States

v. Allen, 235 F.3d 482, 492 (10th Cir. 2000).

      Turning to the facts on this case, we are confident that sufficient evidence was

presented to convict Mr. Eastom of possession of methamphetamine with the intent

to distribute. At trial, Mr. Eastom’s written statement was read to the jury. It stated:

      On 2/8/07, police officers came to my house and found several guns and
      some weed and meth. I acknowledge that it’s mine and not LaDonna
      Wynn’s. A chick brought over some stuff that was hers, guns and some
      black bags and a white box. I wrote this on my own free will. The only
      weapon that the officer recovered that was mine was the [Sig Sauer].

From this statement a reasonable jury could conclude beyond a reasonable doubt that

Mr. Eastom both possessed the methamphetamine and knew that he possessed it.

      In addition, Officer Henderson testified that he discovered a black duffle bag

in the central bedroom of Mr. Eastom’s house that contained two firearms, two

digital scales, and a pill bottle. See Allen, 235 F.3d at 492 (holding that the presence

of firearms may go toward proving that a defendant possessed drugs with the intent

to distribute). A Tulsa forensic scientist testified that the same pill bottle contained

5.78 grams of a substance that contained methamphetamine. Officer Henderson

further testified that digital scales are used in the distribution of narcotics, and that

he had never heard of a user weighing the narcotics before using it. See Triana, 477

F.3d at 1195 (explaining that the presence of scales was evidence of an intent to

distribute).

      Moreover, a surveillance camera was mounted on Mr. Eastom’s home, and

                                          -17-
Officer Henderson testified that surveillance cameras were typically for distribution

purposes. Mr. Eastom also offered to assist the police in investigating a major

methamphetamine dealer, and Officer Henderson testified that a major dealer would

not likely deal directly with a mere user.

      From the testimony at trial a reasonable jury could find beyond a reasonable

doubt that Mr. Eastom intended to distribute the methamphetamine. Therefore, it

was reasonable for the jury to find Mr. Eastom guilty of possession of

methamphetamine with the intent to distribute.

    2. Possession of Firearms in Furtherance of a Drug Trafficking Crime

      Mr. Eastom further argues that insufficient evidence was presented to sustain

his conviction for possession of a firearm in furtherance of a drug trafficking crime.

He argues that there is insufficient evidence of a nexus between the guns recovered

and the drugs. We find that there was sufficient evidence of a nexus.

      To obtain a conviction for possession of a firearm in furtherance of a drug

trafficking crime under 18 U.S.C. § 924(c)(1), the government must demonstrate that

the defendant possessed the firearm in furtherance of the underlying crime. United

States v. Avery, 295 F.3d 1158, 1179 (10th Cir. 2002). A firearm that is kept

available for use if needed during a drug transaction is possessed in furtherance of

drug trafficking so long as such possession is intended by the drug trafficker. United

States v. Robinson, 435 F.3d 1244, 1251 (10th Cir. 2006). Several factors may

facilitate proof of this circumstantial evidence of the defendant’s intent. Id. These

                                         -18-
factors are: (1) the type of drug activity being conducted, (2) the accessibility of the

firearm, (3) the type of firearm, (4) the legal status of the firearm, (5) whether the

firearm is loaded, (6) the proximity of the firearm to drugs or drug profits, and (7)

the time and circumstances under which the firearm is found. Id.

      For example, in United States v. Lott, we held that “the placement of a loaded,

semi-automatic weapon on the driver’s seat of the car in which the instrumentalities

of methamphetamine manufacturing were also found is sufficient evidence from

which a jury could conclude” that the gun was used in furtherance of the drug crime.

United States v. Lott, 310 F.3d 1231, 1248 (10th Cir. 2002).

      Here, there is sufficient evidence that the firearms were possessed in

furtherance of Mr. Eastom’s underlying methamphetamine crime. Officer Henderson

testified that he discovered a black duffle bag in the central bedroom of Mr.

Eastom’s house that contained two firearms, two digital scales, and a pill bottle. A

forensic scientist testified that the same pill bottle contained 5.78 grams of a

substance that contained methamphetamine.

      Having already properly found that the methamphetamine was possessed with

the intent to distribute it, it would be reasonable for the jury to infer that Mr. Eastom

used the bag when conducting drug transactions. The accessability of the firearms

and their proximity to the drugs during these transactions allowed a reasonable jury

to find that Mr. Eastom possessed the firearms in furtherance of his drug crime. See

Robinson, 435 F.3d at 1251 (explaining the accessibility of the firearm and the

                                          -19-
proximity of the firearm to the drugs as factors that may facilitate proof that the

defendant possessed a firearm in furtherance of a drug trafficking crime); Lott, 310

F.3d at 1248 (holding that the placement of a loaded weapon on the driver’s seat of

a car carrying drug instrumentalities was sufficient evidence of possession in

furtherance of a crime). Therefore, sufficient evidence was presented to sustain the

firearms verdict.

                               IV. CONCLUSION

      We conclude that Mr. Eastom’s motion to suppress was properly denied.

Finding Ms. Wynn’s consent to be voluntary was not clearly erroneous, and Mr.

Eastom’s Fifth Amendment rights were not violated. Also, the exclusion of Mr.

Murray’s testimony, if erroneous, did not affect the trial’s outcome. Therefore, the

exclusion cannot lead to reversal. Finally, there was sufficient evidence to allow a

reasonable jury to find that Mr. Eastom possessed the methamphetamine with the

intent to distribute it and possessed the firearms to further that purpose.

Accordingly, we AFFIRM.


                                                   IT IS SO ORDERED.


                                                   Entered for the Court,


                                                   William J. Holloway, Jr.
                                                   Circuit Judge




                                        -20-
