                  NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                             File Name: 11a0825n.06

                                            No. 08-6297

                            UNITED STATES COURT OF APPEALS
                                 FOR THE SIXTH CIRCUIT
                                                                                          FILED
UNITED STATES OF AMERICA,                                 )                          Dec 12, 2011
                                                          )
                                                                               LEONARD GREEN, Clerk
          Plaintiff-Appellee,                             )
                                                          )
v.                                                        )   On Appeal from the United States
                                                          )   District Court for the Western
CURTIS DODSON,                                            )   District of Tennessee
                                                          )
          Defendant-Appellant.                            )




Before:          BOGGS and STRANCH, Circuit Judges; and THAPAR,* District Judge

                 BOGGS, Circuit Judge. A federal jury convicted Curtis Dodson of conspiracy to

possess at least five kilograms of cocaine, in violation of 21 U.S.C. § 841(a)(1) and 21 U.S.C. § 846,

and aiding and abetting in the possession of more than 500 grams of cocaine with the intent to

distribute, in violation of 21 U.S.C. § 841(a)(1) and 18 U.S.C. § 2. Dodson appeals, claiming first

that the government did not produce enough evidence to convict him of either charge, and second

that the district court erred by admitting law-enforcement officers’ opinion testimony on drug

dealers’ behavior, without giving a contemporaneous dual-role instruction. For the reasons that

follow, we affirm the judgment of conviction.




       *
          Hon. Amul R. Thapar, United States District Judge for the Eastern District of Kentucky,
sitting by designation.
No. 08-6297
United States v. Dodson



                                                  I

               Lucio Sandoval and Francisco Abernathy ran a large drug-dealing operation.

Sandoval arranged to send drugs, initially by UPS and later through private couriers, from California

to a “stash-house” that Abernathy owned in Memphis, Tennessee. Sandoval would then fly to

Memphis, help Abernathy process and sell the drugs, and receive payment.

               Dodson met Abernathy through motorcycle racing, and met Sandoval through

Abernathy. Initially, Dodson did not participate in any illegal activity. Eventually, however, he

began to help Sandoval with drug-related tasks, including unloading drugs from the trucks Sandoval

arranged, delivering drugs to local clients, and unwrapping, weighing, and re-packaging drugs,

including the cocaine found in this case.

               On March 13, 2006, a state officer, Jason Randolph, discovered approximately five

kilograms of cocaine during a traffic stop. The driver was arrested and cooperated with police. He

explained that he was a hired courier and led officers to Abernathy’s stash-house, where he had

acquired the drugs.

               The police did not enter immediately. Instead, a number of Tennessee officers,

accompanied by two federal agents, returned later in the evening. Officer Randolph and colleague

John Birch attempted a ‘knock and talk,’ a noncustodial procedure “where a police officer knocks

on the front door of a home for purposes of speaking to the occupants or asking for consent to search

the premises,” Pritchard v. Hamilton Twp. Bd. of Trustees, 424 F. App’x 492, 499 (6th Cir. 2011),

while the other law-enforcement personnel waited outside. As the officers approached the house,

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United States v. Dodson

they encountered Abernathy, who was leaving, and they saw through an open door that several

people were gathered in the living room. They escorted Abernathy back inside. There, Officer

Randolph patted him down, removing a gun, two cell-phones, and a set of car keys from his person.

The officers then ordered all the people in the house to gather in one room. Once all the occupants

were in one place, the officers asked who owned the house. No one answered. Officer Randolph

remained in the living room, while Officer Birch proceeded to the back of the house. There, he

found Dodson and Sandoval in a small bedroom. Both men denied knowing who owned the house.

Birch escorted both to the living room.1

                 Birch next called for the officers who had been waiting outside. Because no one

admitted to owning the house, the officers decided it was not possible to conduct a search based on

consent. They therefore duly obtained a warrant and began to search the house. In the bedroom

where, according to Sandoval, Dodson stayed, one of the federal agents found a stack of mail in

Dodson’s name. Officers also found a shotgun that Sandoval claimed belonged to Dodson, and

drug-dealing equipment, including digital scales and a vacuum-sealer system.

                 Officer Dave McGriff, a supervisor, spoke with Dodson twice over the course of the

evening. During the first conversation, Dodson told McGriff that he did not live at the stash-house

or know whose house it was. Later in the evening, Dodson asked McGriff for his car keys—the

same keys Randolph had taken from Abernathy earlier. Along with keys to Dodson’s car, the key-

ring held a key to the stash-house. Still, Dodson denied knowing who owned the house, claiming

that Abernathy must have put the key on the ring.


       1
           Dodson does not challenge the propriety of the officers’ search of the stash-house.
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No. 08-6297
United States v. Dodson

                 The investigation continued after March 13, with Sandoval’s cooperation. Sandoval

used the directory feature in his cell phone to identify phone numbers belonging to Abernathy and

Dodson. Drug Enforcement Agency Agent Abe Collins obtained phone records for the numbers

Sandoval identified and performed a “link-analysis,” which indicates how frequently one cell-phone

user contacts another based on cell-phone records. Agent Collins’s analysis showed that Dodson

contacted Sandoval fourteen times, and Abernathy 122 times, during the period from January 1, 2006

through March 13, 2006.

                 At trial, both Officer Randolph and Agent Collins testified. On cross-examination,

Dodson’s counsel asked Randolph whether, based on his training and experience, it was common

for drug dealers to register cars in others’ names. Randolph answered that it was. On re-direct-

examination, Randolph testified that drug dealers followed the same practice with cell phones and

firearms. Agent Collins testified about the nature and purposes of stash-houses, drug dealers’ use

of weapons and other equipment, and the street value of cocaine.

                 The court did not identify either law-enforcement officer as an expert. After the

prosecution asked a series of foundational questions, however, the court did state, in front of the jury,

that Collins could give opinion testimony on “narcotics dealers.” At no point did defense counsel

object to either Officer Randolph or Agent Collins’s opinion testimony. In its jury charge, the trial

court gave an instruction on opinion evidence, providing:

        You have heard the testimony of Jason Randolph, Raul Morales2 and Abe Collins
        who rendered opinions in this case. A witness who is allowed to render an opinion
        has special knowledge or experience that allows him to give an opinion. You do not


        2
            Morales is a forensic chemist, employed by the DEA.
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No. 08-6297
United States v. Dodson

        have to accept the opinion of such a witness. In deciding how much weight to give
        it, you should consider the witness' qualifications and how he reached his
        conclusions. Remember that you alone decide how much of a witness' testimony to
        believe and how much weight it deserves.3

                The jury convicted Dodson of conspiracy to possess at least five kilograms of cocaine,

in violation of 21 U.S.C. § 841(a)(1) and 21 U.S.C. § 846, and aiding and abetting in the possession

of in excess of 500 grams of cocaine with the intent to distribute, in violation of 21 U.S.C. §

841(a)(1) and 18 U.S.C. § 2. R. 271.4 Dodson appealed, claiming: (1) the evidence was insufficient

to support conviction on either count; and (2) admission of police testimony on drug dealers’

behavior without a jury instruction on officers’ dual role as lay witnesses and experts was so

prejudicial that it constituted plain error.

                                                   II

                “[T]he critical inquiry on review of the sufficiency of the evidence to support a

criminal conviction . . . [is] whether the record evidence could reasonably support a finding of guilt

beyond a reasonable doubt.” Jackson v. Virginia, 443 U.S. 307, 318 (1979). “A defendant making

such a challenge bears a very heavy burden.” United States v. Tocco, 200 F.3d 401, 424 (6th Cir.

2000). “[T]he relevant question is whether, after viewing the evidence in the light most favorable



        3
         This instruction is nearly identical to Sixth Circuit Criminal Pattern Jury Instruction 7.03.
The only differences were that the court: (1) added: “A witness who is allowed to render an opinion
has special knowledge or experience that allows him to give an opinion,” and (2) omitted: “Also
consider the other factors discussed in these instructions for weighing the credibility of witnesses.”
Sixth Circuit Criminal Pattern Jury Instructions, 7.03 (2009).
        4
          The district court’s entry of judgment form states that Dodson was convicted on both counts
of the indictment, but incorrectly labels the first count as aiding and abetting, rather than conspiracy.

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No. 08-6297
United States v. Dodson

to the prosecution, any rational trier of fact could have found the essential elements of the crime

beyond a reasonable doubt.” Jackson, 443 U.S. at 319 (emphasis in original). Although this court’s

review is de novo, United States v. Carson, 560 F.3d 566, 579 (6th Cir. 2009), “[w]e draw all

available inferences and resolve all issues of credibility in favor of the jury's verdict, 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).
                                                   A

               “To sustain a conviction for drug conspiracy under [21 U.S.C.] section 846 the

government must prove beyond a reasonable doubt: (1) an agreement to violate drug laws; (2)

knowledge of and intent to join the conspiracy; and (3) participation in the conspiracy.” United

States v. Gardner, 488 F.3d 700, 710 (6th Cir. 2007). “Once a conspiracy has been proven, only

slight evidence is necessary to implicate a defendant as a participant in that conspiracy if the

evidence shows the connection beyond a reasonable doubt.” Tocco, 200 F.3d at 424.

               The record below amply supports the jury’s verdict. According to Sandoval, Dodson

helped unload, deliver, weigh, and package drugs. Indeed, Dodson worked with Sandoval to unpack

and re-pack the very cocaine found in this case. Other evidence in the record also supports the jury’s

verdict. The DEA’s investigation showed that Dodson was in frequent phone contact with both

Abernathy and Sandoval; officers searching the stash-house found Dodson’s mail along with a

shotgun that Sandoval claimed belonged to Dodson; and Dodson kept a key to the stash-house with

his car keys—which were found in Abernathy’s pocket. Finally, Dodson lied about his living

situation. There was mail addressed to him at the stash-house and he had a key to the house on his


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No. 08-6297
United States v. Dodson

key-ring. Nevertheless, he denied living there and claimed he did not know who owned the property.

“[I]t is today universally conceded that the fact of an accused's . . . concealment . . . and related

conduct, are admissible as evidence of consciousness of guilt, and thus of guilt itself.” United States

v. Griffin, 172 F.3d 874, 1999 WL 71602, at *5 (6th Cir. 1999) (table) (quoting United States v.

Serio, 440 F.2d 827, 832 (6th Cir. 1971)) (internal quotation marks omitted).

               We hold that, in light of Sandoval’s testimony, physical evidence from the stash-

house, and Dodson’s evasive demeanor about his living situation, a reasonable jury could have

inferred beyond a reasonable doubt that Dodson knowingly or intentionally agreed to possess, and

participated in possessing, at least five kilograms of cocaine.

               Dodson’s contrary arguments—that Sandoval’s testimony does not establish that he

knowingly agreed to participate in the conspiracy, and that Abernathy’s testimony exonerates

him—are unavailing.5 “When deciding whether any rational trier of fact could have found the

essential elements of the crime, this court does not weigh the evidence, consider the credibility of

witnesses, or substitute its judgment for that of the jury.” Gardner, 488 F.3d at 710 (internal

citations omitted).   To accept Dodson’s arguments would be to flout this principle. Although

Abernathy flatly denied that Dodson had any role in the drug enterprise, Sandoval expressly stated

that Dodson was an active participant. Which of these witnesses to credit and how much weight to

ascribe to their testimony is the province of the jury.



        5
          Dodson also suggests that evidence of the drug transaction between him and Sandoval is
insufficient to support his conviction. He appears to ignore the rest of the evidence presented against
him in making this claim.

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No. 08-6297
United States v. Dodson

               Dodson, therefore, has failed to meet his “very heavy burden,” United States v. Tocco,

200 F.3d 401, 424 (6th Cir. 2000), of demonstrating that, “after viewing the evidence in the light

most favorable to the prosecution, [no] rational trier of fact could have found the essential elements

of the crime beyond a reasonable doubt.” Jackson, 443 U.S. at 319.

                                                  B

               “[T]o establish a violation of [21 U.S.C.] § 841(a)(1), the government must prove the

following elements: (1) knowing (2) possession of a controlled substance (3) with intent to

distribute.” United States v. Bonas, 434 F. App’x 422, 430 (6th Cir. 2011) (quoting United States

v. Mackey, 265 F.3d 457, 460 (6th Cir. 2001)) (internal quotation marks omitted).

               Dodson claims that no evidence exists that he knowingly possessed a controlled

substance, either directly or constructively. He was charged, however, under an aiding-and-abetting

theory. To prove aiding and abetting, the government need only show that Dodson knew that

Abernathy and Sandoval possessed cocaine with the intent to distribute it and that he assisted in their

plan to deliver it. See United States v. Ledezma, 26 F.3d 636, 641 (6th Cir. 1994). Sandoval testified

that Dodson worked with him to unload, deliver, weigh, and package drugs. Further, there was mail

addressed to Dodson at the stash-house, where drugs were often in plain view, and he had a key to

the house on his key ring. This evidence easily supports a rational inference that Dodson knew

Abernathy and Sandoval possessed cocaine, with the intent to distribute it, and assisted in their plan

to deliver it. Jackson, 443 U.S. at 319.




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United States v. Dodson

                                                  III

               Dodson’s final argument is that admission of Officer Randolph and Agent Collins’s

testimony on drug dealers’ habitual behavior, without a contemporaneous dual-role instruction,

requires reversal of his conviction. Plain-error analysis applies to this claim because Dodson did

not object to admission of the officers’ testimony at trial. See United States v. Martin, 520 F.3d 656,

658 (6th Cir. 2008). Under plain-error analysis, this court overturns a conviction only if: “(1) there

was error that (2) was plain, (3) affected a substantial right, and (4) seriously affects the fairness,

integrity, or public reputation of judicial proceedings.” Ibid. (internal quotation omitted).

               Because the court did not err in this case, we need not proceed beyond the first step

of plain-error analysis. A trial judge’s instructions on opinion witnesses are designed to “ameliorate

the risk of jury confusion regarding dual role testimony.” United States v. Lopez-Medina, 461 F.3d

724, 744 (6th Cir. 2006). At the same time, however, trial courts are not to call attention to a

witness’s expert status, since such a designation risks giving the witness’s opinion the court’s

imprimatur. See United States v. Johnson, 488 F.3d 690, 697–98 (6th Cir. 2007). Only if a

defendant objects to opinion testimony should the trial court allow voir dire and then decide whether

the witness may offer an opinion. Id. at 698.

               The district court in this case did not identify either law-enforcement officer as an

expert, although it did allow Collins to give opinion testimony, after the prosecution asked a series

of foundational questions. In its jury charge, the court gave an instruction substantially identical to

Sixth Circuit Criminal Pattern Jury Instruction 7.03, explaining how the jury should weigh opinion

testimony. See supra note 3.

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United States v. Dodson

               The court’s approach was not error. By declining to draw special attention to the

witnesses’ status as law-enforcement officers, then giving this circuit’s pattern instruction on opinion

testimony when charging the jury at the end of the case, the court appropriately balanced the need

to “ameliorate the risk of jury confusion regarding dual role testimony,” Lopez-Medina, 461 F.3d

at 744, with the danger of “‘putting some general seal of approval on an expert after he has been

qualified but before any questions have been posed to him.’” Sixth Circuit Criminal Pattern Jury

Instruction 7.03, Committee Commentary (2009) (quoting Berry v. City of Detroit, 25 F.3d 1342,

1351 (6th Cir. 1994)).

               Dodson’s contrary argument rests primarily on analogy to Lopez-Medina, where this

court found that admission of law-enforcement personnel’s testimony as both fact and expert

witnesses, without a dual-purpose instruction and without any clear demarcation between fact and

expert testimony, was plain error. Lopez-Medina, 461 F.3d at 742–45. This court, however, has

“declined to extend the holding in Lopez-Medina to circumstances in which there were no other

evidentiary errors.” United States v. Vasquez, 560 F.3d 461, 470–71 (6th Cir. 2009) (citing Martin,

520 F.3d at 659–60). Dodson makes no other evidentiary claims. Thus, Lopez-Medina does not

control. Furthermore, the trial court’s jury instruction—while not contemporaneous—was nearly

identical to the instructions the Lopez-Medina court suggested would be sufficient. Compare R. 355

at 768–69 (jury instructions, as recorded in trial transcript), with Lopez-Medina, 461 F.3d at 743.

The only material difference was that, instead of using the term ‘expert witness,’ the trial court used




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United States v. Dodson

the term ‘witness.’6 Thus, unlike the court in Lopez-Medina, the court here “guard[ed] against the

risk of confusion inherent when a law enforcement agent testifies as both a fact witness and as an

expert witness.” Lopez-Medina, 461 F.3d at 744.

                  We hold, therefore, that the trial court did not commit error, much less plain error,

by admitting law-enforcement officers’ opinion testimony in evidence, then giving an instruction

substantially identical to Sixth Circuit Criminal Pattern Jury Instruction 7.03 in its jury-charge.

                                                   IV

                  The government presented evidence sufficient to convict Dodson on both counts of

the indictment, and the district court did not commit plain error in admitting the officers’ opinion

testimony without a contemporaneous dual-role instruction. We therefore AFFIRM Dodson’s

conviction.




        6
            This court’s decision in Johnson, 488 F.3d at 697–98, required such an alteration.

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