                                                                          FILED
                                                              United States Court of Appeals
                                                                      Tenth Circuit
                    UNITED STATES COURT OF APPEALS
                                                                     March 3, 2015
                                 TENTH CIRCUIT                    Elisabeth A. Shumaker
                                                                      Clerk of Court


 UNITED STATES OF AMERICA,

              Plaintiff-Appellee,
                                                         No. 13-3311
 v.                                            (D.C. No. 6:13-CR-10071-JTM-1)
                                                          (D. of Kan.)
 AMOS BECKNELL,

              Defendant-Appellant.


                           ORDER AND JUDGMENT *


Before TYMKOVICH, EBEL, and GORSUCH, Circuit Judges.


      A jury convicted Amos Becknell of a variety of drug charges arising from a

search of his home in Wichita, Kansas. He claims the district court made a

number of errors at trial, including improperly allowing a government witness to

testify regarding information gleaned from a confidential informant in violation of

the Confrontation Clause and the Federal Rules of Evidence, and also allowing

the same witness to draw express conclusions about Becknell’s mens rea. In

addition, he claims the district court erred before and after trial by rejecting (1) a


      *
         This order and judgment is not binding precedent except under the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.
probable cause challenge to the search warrant of his home, (2) his challenge to

the sufficiency of the evidence at trial, and (3) a Commerce Clause challenge to

the felon-in-possession-of-a-firearm statute.

      We find no reversible error in the district court’s rulings. Consequently,

exercising jurisdiction under 28 U.S.C. § 1291, we AFFIRM.

                                I. Background

     The Wichita Police Department launched a drug investigation after a

confidential informant reported that an occupant of a residence in Wichita,

Kansas, was selling crack cocaine from the home.

      Officers conducted three searches of a trash can sitting on the street in front

of the residence. The first search revealed a small quantity of marijuana and three

letters addressed to the home. The second revealed more marijuana. The third

search revealed two corners of plastic sandwich bags, containing white residue,

which later tested positive for cocaine. The search also discovered eleven other

plastic bags with torn corners. Officers concurrently conducted surveillance on

the home, and noted multiple instances in which individuals arrived at the home,

entered, and left quickly.

      Based on this information, officers filed an affidavit for a search warrant.

When officers arrived to execute the warrant, they spotted Becknell leaving the

residence. Because he had existing warrants on other charges, officers pulled him

over and arrested him. When officers told him of the search warrant, Becknell

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informed them that they would find several firearms in the home. He admitted

owning those firearms (illegally, in light of his status as a felon), but denied any

knowledge of narcotics. Officers requested the home keys from Becknell, which

he provided.

      When officers entered the home, they located a Beretta .380-caliber semi-

automatic pistol on one of the couches in the living room. On a coffee table

directly in front of that couch, officers found more torn plastic baggies and a

plastic bag containing crack cocaine. On another couch, officers found a cigarette

box, which contained two plastic bags. The smaller bag contained white powder

that tested positive for cocaine; the larger contained “rocks” later confirmed to be

crack cocaine. Both the bag on the table and the cigarette box were within ten

feet of the pistol. Officers also located cocaine in a plastic container on a shelf in

the hallway, also within ten feet of the gun. Becknell’s right middle fingerprint

was lifted from the container.

      Officers located two other firearms in the home—an SKS rifle and a Smith

and Wesson .357 revolver. Testimony at trial established that all three firearms

traveled in interstate commerce to arrive in Kansas.

      At trial, government witnesses testified that much of the cocaine was

distribution-quantity. They further testified that, despite the cocaine and cocaine

packaging seized, officers found no cocaine use paraphernalia in the home.

Witnesses also testified that bags with torn corners—like the ones located in the

                                          -3-
third search—often evince cocaine distribution because of how crack cocaine is

sold. Additionally, officers testified at trial that the numerous brief visits they

observed during their surveillance also indicated drug dealing.

      Becknell was indicted and convicted on three charges: (1) possession of

cocaine with intent to distribute in violation of 21 U.S.C. § 841(a)(1), (b)(1)(C);

(2) possession of a firearm in furtherance of a drug trafficking crime in violation

of 18 U.S.C. § 924(c); and (3) three counts of felon in possession of a firearm in

violation of 18 U.S.C. §§ 922(g)(1), 924(a)(2).

                                    II. Analysis

      As we explain below, the district court did not commit any reversible error.

      A. Testimony Concerning the Confidential Informant

      Becknell first claims the district court erred by allowing Officer Ryan

Schomaker to mention the confidential informant’s tip in the course of explaining

how he began his investigation in this case. According to Becknell, this

contravened the court’s instructions to the prosecutor to avoid mentioning the

informant and to avoid “get[ting] into why . . . [officers] were investigating.” R.,

Vol. III at 86–87.

      We review the admission of evidence under the Federal Rules of Evidence

for abuse of discretion, with special deference to hearsay determinations. United

States v. Chavez, 229 F.3d 946, 950 (10th Cir. 2000). Accordingly, we will not

reverse a district court’s decision if it “falls within the bounds of permissible

                                          -4-
choice in the circumstances.” United States v. Cardinas Garcia, 596 F.3d 788,

797 (10th Cir. 2010). We review a district court’s Confrontation Clause decision

de novo. United States v. Kamahele, 748 F.3d 984, 997 & n.4 (10th Cir. 2014).

             1. Applicable Law

      Hearsay—a statement that “the declarant does not make while testifying at

the current trial or hearing” that “a party offers in evidence to prove the truth of

the matter asserted in the statement”—is inadmissible. Fed. R. Evid.

801(c)(1)–(2). But testimony not offered to prove the matter asserted that is

“offered instead for relevant context or background” is not hearsay. United States

v. Hinson, 585 F.3d 1328, 1336 (10th Cir. 2009). Importantly, the “matter

asserted is the fact being asserted by the declarant in uttering the statement,”

which is “not necessarily the matter that the party offering the statement into

evidence is trying to prove with the statement.” United States v. Lewis, 594 F.3d

1270, 1282 (10th Cir. 2010) (internal quotation marks omitted).

      “One useful clue” in distinguishing hearsay from permissible background

information is “whether the purported background evidence is necessary for the

government to be able to tell a coherent story about its investigation.” Hinson,

585 F.3d at 1337. The “absence of a tenable non-hearsay purpose for offering

[the evidence] establishes that the evidence could have been offered only for its

truth value.” Id. (emphasis omitted). Accordingly, if “the government introduces

evidence that bears on the ultimate issue in a case” but is unnecessary to “explain

                                          -5-
the background of a police investigation, the only reasonable conclusion we can

reach is that the evidence was offered, not as background, but as support for the

government’s case.” Id.

      This does not mean that evidence is automatically hearsay if it is not

strictly necessary for an investigation. Necessity is simply “one useful clue” in

the hearsay inquiry. Consequently, out-of-court statements not technically

necessary to a coherent story may still be admitted if the proponent can show

through other means they are not offered for the truth of the matter asserted.

      Finally, because improperly admitted hearsay is a non-constitutional error,

that error is harmless “unless it had a substantial influence on the outcome or

leaves one in grave doubt as to whether it had such effect.” United States v.

Griffin, 389 F.3d 1100, 1104 (10th Cir. 2004) (internal quotation marks omitted).

      Confrontation Clause questions often arise in the same context as hearsay

questions. The Clause guarantees criminal defendants the right to confront

witnesses against them. U.S. Const. amend. VI. It applies independently to out-

of-court statements introduced at trial regardless of their admissibility under the

law of evidence. Crawford v. Washington, 541 U.S. 36, 50–51 (2004).

      The Clause bars “testimonial” hearsay statements unless the declarant is

unavailable and the defendant had a prior opportunity for cross-examination.

United States v. Mendez, 514 F.3d 1035, 1043 (10th Cir. 2008). It only does so,

however, if those statements are offered to prove the truth of the matter asserted.

                                         -6-
Kamahele, 748 F.3d at 1000. Consequently, a conclusion that testimony is not

hearsay because it was not offered for the truth of the matter asserted informs its

Confrontation Clause status. Finally, confidential informant statements are

testimonial. United States v. Lopez-Medina, 596 F.3d 716, 730 (10th Cir. 2010).

      Any Confrontation Clause errors receive constitutional harmless-error

analysis, “under which the beneficiary of a constitutional error must prove beyond

a reasonable doubt” that “the error complained of did not contribute to the guilty

verdict.” United States v. Chavez, 481 F.3d 1274, 1277 (10th Cir. 2007) (internal

quotation marks omitted). To determine whether such an error actually

contributed to the guilty verdict, we consider “the context in which the statement

was admitted, how it was used at trial, and how it compares to the properly

admitted evidence.” Id.

             2. Application

      Becknell claims three statements by Officer Schomaker violated the court’s

ruling, and consequently violated both the Federal Rules of Evidence and the

Confrontation Clause.

      First, the prosecutor asked whether many police actions “come from

concerns or reports made by the community or members of the community.” R.,

Vol. III at 91. Officer Schomaker responded affirmatively. Second, the

prosecutor asked the officer how he began the investigation, to which he

responded that he had “received some information about drug activity at

                                         -7-
[Becknell’s residence].” Id. at 92. Third, the prosecutor asked the officer

whether he was working other cases at the time of the investigation. He

responded affirmatively, stating that “[t]hese cases, such as the neighborhood

complaints or drug complaints that we get in, we will be assigned these different

complaints from different tips . . . at any given time I’m working [twenty]

different complaints.” Id. at 282.

      Regardless of whether admission of this testimony violated the rules of

evidence addressing hearsay or the Confrontation Clause, any such violation did

not substantially influence the outcome and was, instead, harmless beyond a

reasonable doubt. The officer did not refer to the fact that a confidential

informant existed, so the jury never learned that information. And the

government did not use this challenged testimony as a key point in its case.

Moreover, as we discuss more fully below, the government presented other

substantial and unchallenged evidence linking Becknell to drug trafficking.

      In sum, the district court did not commit reversible error by admitting

Officer Schomaker’s testimony.

      B. Opinion Testimony

      Becknell next claims the district court abused its discretion in overruling

two objections to Officer Schomaker’s opinion testimony. He first objected when

the prosecutor asked the officer to “discuss some of the factors that [he looks] at

or consider[s] as to whether or not the firearm is possessed . . . in furtherance of a

                                          -8-
drug trafficking crime.” R., Vol. III at 212–13. The court overruled that

objection. Officer Schomaker responded, “[l]ocation . . . it’s either on

somebody’s person or where they can actually access it . . . pretty quickly, as in

this case.” Id. at 214. He explained that he also looks at “where the drugs are

compared to the firearm and the accessibility of other weapons.” Id.

      During the same colloquy, the prosecutor asked whether “the type of

firearm play[s] into consideration [in determining whether a firearm was there

based on drug dealing].” Id. Officer Schomaker explained that “[i]t can. . . . by

the size” and “the amount of ammunition it holds. If I am going to fire an item, I

don’t want to be holding a small handgun . . . I want to have something that holds

a good amount of rounds.” Id. The prosecutor then immediately asked the officer

to describe “how close” the Beretta was to the cocaine found in the living room;

Officer Schomaker obliged. Id. at 214–15.

      Becknell made his second objection when the prosecutor asked whether

Officer Schomaker was “able to . . . form an opinion whether or not the money”

seized in the search was “proceeds of drug distribution,” and on what basis he had

formed that opinion. Id. at 216. The court also overruled this objection. The

officer went on to assert that the money was proceeds of drug distribution, and

that he based his opinion on “my experience . . . and the fact that drug dealers

will keep cash around because that’s how they get paid.” Id. The prosecutor then

immediately asked whether “the amount of money that was collected in this case”

                                         -9-
was “consistent with the drugs that were collected.” Id. at 216–17. The officer

indicated that it was.

         We review the admission of evidence for the abuse of discretion. United

States v. Chavez, 229 F.3d 946, 950 (10th Cir. 2000). Even where admission was

an abuse of discretion, we will not reverse if the error was harmless. United

States v. Tome, 61 F.3d 1446, 1449 (10th Cir. 1995).

         Opinion testimony is “not objectionable just because it embraces an

ultimate issue.” Fed. R. Evid. 704(a). Rule 704(b) provides an exception: In a

criminal case, “an expert witness must not state an opinion about whether the

defendant did or did not have a mental state or condition that constitutes an

element of the crime charged or of a defense.” Fed. R. Evid. 704(b).

         Rule 704(b) is narrow, and “only prevents experts from expressly stating

the final conclusion or inference” regarding a defendant’s mental state. United

States v. Richard, 969 F.2d 849, 854 (10th Cir. 1992). Experts may testify to

“facts or opinions from which the jury could conclude or infer the defendant had

the requisite mental state.” Id. at 855. But they may not give testimony that, if

believed, “necessarily dictates the final conclusion” that the defendant “possessed

the requisite mens rea.” United States v. Wood, 207 F.3d 1222, 1236 (10th Cir.

2000).

         Rule 704(b) is implicated here by the “in furtherance of” language in 18

U.S.C. § 924(c)(1)(A), which “relates to the defendant’s intent.” United States v.

                                          -10-
Garza, 566 F.3d 1194, 1200 (10th Cir. 2009). Thus, a district court has

committed reversible error if it allows an expert to testify that a defendant in a

§ 924(c)(1)(A) case possessed a firearm “in furtherance of” a crime. Id.

      The district court did not err in permitting Officer Schomaker’s testimony.

To be sure, the officer did not “expressly stat[e] the final conclusion or

inference,” Richard, 969 F.2d at 854, that Becknell possessed the gun in

furtherance of drug trafficking. Yet, in context, he did everything but state that

final inference. After all, he responded to the government’s specific request to

“discuss some of the factors” he considers in determining whether a firearm is

possessed “in furtherance of a drug trafficking crime.” His detailed description of

those factors, followed immediately by his description of the facts of this case

tracking those factors, came close to “necessarily dictat[ing] the final conclusion”

to the jury. See Wood, 207 F.3d at 1236.

      Nevertheless, in light of our precedent, we cannot say the trial court abused

its discretion in allowing this testimony. While the testimony was close to the

line, the jury was still left to the ultimate finding of fact. See, e.g., United States

v. Orr, 68 F.3d 1247, 1252 (10th Cir. 1995) (finding no Rule 704(b) violation

where witness testified that defendant’s alleged bank fraud would only succeed if

he continued to find “bank sucker[s],” but did not opine on defendant’s criminal

intent); Richard, 969 F.2d at 854–55 (finding no violation where testifying officer

identified each defendant’s role in a drug transaction but drew no express

                                          -11-
conclusion on their awareness of the transaction’s nature). But see United States

v. Dennison, 937 F.2d 559, 564–65 (10th Cir. 1991) (affirming district court’s

exclusion of defendant’s expert testimony that a hypothetical person—identical to

the defendant in all relevant ways—could not form the necessary mens rea). In

any event, any error was harmless in light of the substantial evidence provided at

trial.

         In sum, the district court did not err in admitting Officer Schomaker’s

opinion testimony.

         C. Probable Cause Underlying Search Warrant

         Becknell also claims the district court improperly denied his motion to

suppress evidence seized at his home. He contends the application for the search

warrant failed to provide a substantial basis for finding probable cause.

         Determinations relating to a search warrant’s sufficiency are legal

questions reviewed de novo. United States v. Perrine, 518 F.3d 1196, 1201 (10th

Cir. 2008). But we do not review the issuing judge’s probable cause

determination de novo. See id. That decision is “entitled to great deference,” and

we “need only ask whether, under the totality of the circumstances presented in

the affidavit, the magistrate judge had a substantial basis for determining that

probable cause existed.” United States v. Artez, 389 F.3d 1106, 1111 (10th Cir.

2004) (internal quotation marks omitted).




                                          -12-
      An affidavit establishing probable cause demonstrates a connection

between the place to be searched and the “contraband to be seized or suspected

criminal activity.” United States v. Gonzales, 399 F.3d 1225, 1228 (10th Cir.

2005). A sufficient connection is established when the affidavit “describes

circumstances” warranting “a person of reasonable caution” to believe “the

articles sought are at a particular place.” United States v. Biglow, 562 F.3d 1272,

1279 (10th Cir. 2009) (internal quotation marks omitted).

      When an affidavit is based only in part on an informant’s statements, its

“complete failure” to discuss the informant’s reliability “does not automatically

preclude a finding of probable cause.” United States v. Harris, 735 F.3d 1187,

1192 (10th Cir. 2013). When there is “sufficient independent corroboration” of a

confidential informant’s information, the confidential informant’s veracity need

not be established. Id.

      The magistrate judge here had a substantial basis for concluding that

probable cause existed. Although we doubt the confidential informant’s

information alone would be sufficient, because the affidavit did not discuss the

informant’s reliability or veracity, the trash searches and the traffic seen at the

house suggesting drug sales were occurring there provided sufficient independent

corroboration. The discovery of mail addressed to Becknell’s residence in the

first trash search sufficiently supported an inference that the inhabitants of the

home used the trash can. The discovery of cocaine residue and plastic baggies in

                                          -13-
the third trash search sufficiently corroborated the informant’s tip that an

individual in the residence was selling cocaine. Consequently, there was a

“substantial basis” to find probable cause.

      The trial court properly denied Becknell’s motion to suppress.

      D. Sufficiency of the Evidence

      Becknell next challenges the district court’s denial of his motion for

judgment of acquittal. He claims there was insufficient evidence to support his

convictions for possession of cocaine with intent to distribute and possession of a

firearm in furtherance of a drug-trafficking offense.

             1. Possession of Cocaine with Intent to Distribute

      To convict Becknell on the distribution charge, the jury had to find beyond

a reasonable doubt that Becknell knowingly possessed the cocaine with intent to

distribute. See United States v. Triana, 477 F.3d 1189, 1194 (10th Cir. 2007).

Constructive possession can support a conviction. United States v. McKissick,

204 F.3d 1282, 1291 (10th Cir. 2000). Showing that a defendant knowingly had

“ownership, dominion or control over the narcotics and the premises” where they

were found can demonstrate constructive possession. United States v. Reece, 86

F.3d 994, 996 (10th Cir. 1996). But if “contraband may be attributed to more

than one individual” there must be some “nexus, link, or other connection

between the defendant and the contraband.” Id. “[M]ere dominion over the

[location] and proximity to the contraband,” without more, will not suffice. Id.

                                         -14-
But juries “may draw reasonable inferences from direct or circumstantial

evidence,” as long as the inference is not rooted in “speculation or conjecture.”

Id.

      A rational jury could have inferred a connection between Becknell and the

cocaine demonstrating constructive possession. First, Becknell had dominion

(although not exclusive dominion) over the residence. Officers found many

letters addressed to him inside, and he owned a pair of keys. He also identified

and claimed ownership of guns discovered in the house. Second, the government

provided sufficient evidence connecting Becknell to the contraband. Officers

found crack cocaine, with accompanying plastic baggies, on a table directly in

front of the couch where Becknell’s loaded Beretta sat. Officers found other bags

of cocaine in the same room as—and within ten feet of—the Beretta. They also

discovered Becknell’s fingerprints on a plastic container holding cocaine.

      To be sure, less evidence supports intent to distribute. Becknell admits

living at the house, so officers understandably found his fingerprints on the

premises. The baggies and other packaging were arguably just as consistent with

cocaine use as cocaine distribution. After all, crack cocaine users—who buy their

product in plastic baggies—also possess such baggies.

      But the jury could have reasonably credited testimony that the cocaine

found in the same room as the firearm was of a quantity most fit for distribution.

They could have further inferred intent to distribute from that cocaine’s proximity

                                        -15-
to Becknell’s illegally possessed gun, as well as from the fact that the residence

contained no cocaine use paraphernalia, and from the traffic in and out of the

house.

         The evidence here was sufficient for a reasonable jury to find Becknell

intended to distribute cocaine.

               2. Possession of a Firearm

         To convict, the jury had to find beyond a reasonable doubt that a firearm

“furthered, promoted or advanced a drug trafficking crime.” United States v.

McGehee, 672 F.3d 860, 871 (10th Cir. 2012). The government must prove

(usually through circumstantial evidence) a connection between the weapon and

the crime. Id. We examine a “nonexclusive list” of factors in this analysis: the

“type of drug activity being conducted, the accessibility of the firearm, the type

of firearm, the legal status of the firearm, whether the firearm is loaded, the

proximity of the firearm to drugs or drug profits, and the time and circumstances

under which the firearm is found.” Id.

         Those factors show that a rational jury could have found that Becknell

possessed the Beretta in furtherance of drug trafficking. First, the type of drug

activity was “hand-to-hand” drug dealing, where a “dealer would want the

protection of a firearm.” United States v. Maye, 582 F.3d 622, 639 (6th Cir.

2009). Second, Becknell could readily access the Beretta; he told the officers that

there were firearms in the house, and he described and claimed the firearms. The

                                          -16-
Beretta was on a couch in the living room. Third, the jury could have reasonably

believed that the type of firearm (a Beretta .380-caliber semi-automatic pistol)

indicated possession in furtherance of drug trafficking. For example, Officer

Schomaker testified that drug traffickers prefer handguns holding a “good amount

of rounds”; when seized, the Beretta contained eight live rounds. R., Vol. III at

164, 214.

      The fourth factor is not implicated here, but the fifth and sixth factors

are—the gun was loaded and found within ten feet of the plastic container and the

cigarette box, both of which held cocaine. And government witnesses testified

that the cigarette box contained distribution quantities of cocaine. Finally,

regarding the time and circumstances of the seizure, the Beretta was seized along

with two other firearms, as well as with several different types of drug

paraphernalia. A reasonable jury certainly could have concluded that the gun was

possessed in furtherance of drug trafficking.

      The district court properly denied Becknell’s motion for judgment of

acquittal.

      E. Congressional Power to Enact 18 U.S.C. § 922(g)(1)

      Finally, Becknell challenges his convictions for felon in possession of a

firearm on the basis that Congress lacked power under the Commerce Clause to

enact 18 U.S.C. § 922(g), which prohibits felons from possessing a firearm that

has moved in interstate commerce. See 18 U.S.C. § 922(g). We apply de novo

                                        -17-
review to this challenge to Congressional power to enact a statute. United States

v. Plotts, 347 F.3d 873, 877 (10th Cir. 2003).

      Our cases squarely foreclose this argument. See United States v. McCane,

573 F.3d 1037, 1047 (10th Cir. 2009) (rejecting argument that Congress lacked

power to enact § 922(g)); United States v. Urbano, 563 F.3d 1150, 1154 (10th

Cir. 2009) (same). Consequently, the district court properly rejected Becknell’s

Commerce Clause challenge.

                                III. Conclusion

      We see no error, and AFFIRM Becknell’s convictions. 1

                                               ENTERED FOR THE COURT,

                                               Timothy M. Tymkovich
                                               Circuit Judge




      1
          We deny Becknell’s pro se motion to file a supplemental brief.

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