                                                                     F I L E D
                                                               United States Court of Appeals
                                                                       Tenth Circuit
                    UNITED STATES CO URT O F APPEALS
                                                                      July 18, 2006
                                 TENTH CIRCUIT                    Elisabeth A. Shumaker
                                                                      Clerk of Court


 U N ITED STA TES O F A M ER ICA,

               Plaintiff - Appellee,             Nos. 05-7063 and 05-7069
          v.                                          E. D. Oklahoma
 JEREM Y WA Y N E STA N LEY ,                      (D.C. No. 05-CR -3-P)

               Defendant - Appellant.



                            OR D ER AND JUDGM ENT *


Before HA RTZ, EBEL, and T YM KOVICH, Circuit Judges.


      Jeremy W ayne Stanley was charged in a three-count indictment with (1)

possession with intent to distribute methamphetamine, see 21 U.S.C. § 841(a)(1),

(b)(1)(C); (2) possession of a machine gun, see 18 U.S.C. § 922(o); and (3)

possession of a firearm during the commission of a drug-trafficking crime, see id.

§ 924(c)(1)(B)(ii). A jury found him guilty on all three counts, and he was



      *
       After examining the briefs and appellate record, this panel has determined
unanimously to honor the parties’ request for a decision on the briefs without oral
argument. See Fed. R. App. P. 34(f); 10th Cir. R. 34.1(G). The case is therefore
submitted without oral argument. This order and judgment is not binding
precedent, except under the doctrines of law of the case, res judicata, and
collateral estoppel. The court generally disfavors the citation of orders and
judgments; nevertheless, an order and judgment may be cited under the terms and
conditions of 10th Cir. R. 36.3.
sentenced to 372 months in prison. On appeal he contends that (1) his due-

process right to present a defense was denied by a witness’s refusal to testify; and

(2) there was insufficient evidence to support the jury’s verdict on the § 924(c)

count. W e affirm, holding that a defendant’s right to a fair trial does not include

the right to force a witness to waive his privilege against self-incrimination, and

that there was sufficient evidence to support the § 924(c) charge.

I.    B ACKGR OU N D

      After James Glodrey was arrested on drug charges, Officer John Bynum of

the W apanucka Police Department approached him about cooperating with the

police. According to Glodrey’s trial testimony, Officer Bynum told him that “if I

would work with them, . . . he would make all of my troubles disappear.” R . Vol.

II at 197. Glodrey agreed to cooperate and gave Officer Bynum the name of

Jeremy Stanley, from whom he had bought drugs on a number of occasions.

      A controlled buy was conducted at M r. Stanley’s home on September 11,

2004. The officers watched from about a block away as Glodrey went to the

house to purchase drugs. M r. Stanley was standing outside his home holding a

bag when Glodrey arrived. He put the bag down, saying, “‘Check that out.’”

R. Vol. II at 210. Glodrey opened the bag and saw that it contained a machine

gun. The two then went into M r. Stanley’s home (with M r. Stanley carrying the

bag containing the gun). Glodrey testified that M r. Stanley showed him some

clips containing ammunition for the gun, but never loaded it; M r. Stanley

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“[p]ulled up the front of his pants and stuck [the gun] in it. . . . He said that the

cops had been driving by that day and he was kind of worried about that and the

first one in the door gets 1200 rounds a minute.” R. Vol. II at 216. Glodrey

purchased a “sixteenth” of methamphetamine for $100, and then left with the

drugs and returned to the police station, where he told the officers what had

occurred. M r. Stanley was located and arrested tw o days later.

      On the eve of trial M r. Stanley filed a motion to dismiss the charges against

him, contending “that he can not be afforded a fair and impartial trial” because

Bynum had informed the parties that he would invoke his privilege against self-

incrimination if called to testify. R. Vol. I Doc. 38. The motion noted that

Bynum was no longer a law-enforcement officer, “currently stands charged . . .

with two felony counts relating to his activities in drug cases while employed as

W apanucka Police Chief,” and had previously been placed on probation for

“Indecent Exposure . . . , which is a crime of moral turpitude.” Id. Bynum was

examined by the court outside the presence of the jury and, on the advice of

counsel, invoked his Fifth Amendment privilege. Another hearing was held after

the government rested its case, and Bynum again asserted that he would invoke

his Fifth Amendment privilege if called to testify. Neither side argued that he did

not have the right to do so. Bynum was not called to the stand, and M r. Stanley

was convicted on all charges.




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II.   D ISC USSIO N

      A.     Right to present a defense

      M r. Stanley contends that his due process right to present a defense was

violated by Bynum’s refusal to testify, which “prevented the Defendant from

showing to the jury that [Bynum] was charged with felony counts of grand

larceny and embezzlement” and of “falsely reporting a crime, and probation for

indecent exposure.” A plt. Br. at 12. He asserts that the alleged misconduct is

“relevant to Bynum’s character and conduct as an officer entrusted to enforce the

law,” and “to Bynum’s dealings with informant James Glodrey.” Id. at 12-13.

      “A criminal defendant’s right to present a defense is essential to a fair

trial.” United States v. Serrano, 406 F.3d 1208, 1214 (10th Cir. 2005). “The

Fifth . . . and Sixth Amendments concomitantly provide a criminal defendant the

right to present a defense by compelling the attendance, and presenting the

testimony, of his own witnesses.” Id. at 1215. But this right “is not absolute.”

Id. “The right to present a defense . . . does not displace traditional testimonial

privileges. . . . Several courts of appeal, therefore, have held that a defendant’s

right to present a defense does not include the right to compel a witness to waive

his Fifth Amendment privilege against self incrimination.” Id. (internal citations

omitted).

      In this case M r. Stanley conceded that Bynum had a right to invoke the

privilege, and there is no allegation that the court or the prosecution improperly

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influenced Bynum’s decision. See id., at 1215-16 (right to present a defense is

violated w hen “the government . . . substantially interfere[s] with a defense

witness’s decision to testify.”). W e conclude, therefore, that Bynum’s refusal to

testify did not deprive M r. Stanley of the right to present a defense.

      B.       Insufficient Evidence

      Next, M r. Stanley contends that there was insufficient evidence for the jury

to convict him on the § 924(c) charge. W e review this claim de novo, “viewing

the evidence and the reasonable inferences to be drawn therefrom in the light

most favorable to the government,” and reversing the conviction “only if no

rational trier of fact could have found the essential elements of the crime beyond

a reasonable doubt.” United States v. Toles, 297 F.3d 959, 968 (10th Cir. 2002)

(internal quotation marks omitted).

      Section 924(c)(1)(A) provides punishment for any person who (1) “during

and in relation to any . . . drug trafficking crime . . . uses or carries a firearm,” or

(2) “in furtherance of any such crime, possesses a firearm.” See United States v.

Lott, 310 F.3d 1231, 1246 (10th Cir. 2002). Subsection (c)(1)(B)(ii) increases the

penalty if the firearm is a machine gun. M r. Stanley does not dispute that he

“carrie[d] or use[d]” a machine gun, as required by alternative (1) in

§ 924(c)(1)(A). He contends only that he did not carry it “in relation to” the drug

transaction.




                                           -5-
      [T]he phrase “in relation to” “at a minimum, clarifies that the firearm
      must have some purpose or effect with respect to the drug trafficking
      crime; its presence or involvement cannot be the result of accident or
      coincidence. . . . Instead, the gun at least must facilitate, or have the
      potential of facilitating, the drug trafficking offense.”

United States v. Iiland, 254 F.3d 1264, 1271 (quoting Smith v. United States, 508

U.S. 223, 238 (1993) (internal quotation marks and brackets omitted)). “The in

relation to clause is intended to prevent the punishment of possession alone.

Consequently, [it] requires there to be a nexus between the firearm and the

underlying offense.” United States v. Avery, 295 F.3d 1158, 1175 (10th Cir.

2002) (internal quotation marks, citation, and ellipsis omitted).

      In this case the evidence showed that M r. Stanley was selling

methamphetamine from his home; he kept the gun on his person or within easy

reach; the gun was an illegal machine gun; the gun was not loaded, but there were

two amm unition clips in the bag with the gun; and the avowed purpose of the gun

was to injure law-enforcement officers who might seek entry into his home.

Certainly, it was no “accident or coincidence” that the gun was present. Iiland,

254 F.3d at 1271 (internal quotation marks omitted). And, given that the gun was

there to protect M r. Stanley’s illicit enterprise, it had a “purpose or effect with

respect to” that crime. Id. (internal quotation marks omitted).

      M r. Stanley argues that he was unaware that Glodrey was coming to

purchase drugs, and that the “evidence indicated that the Defendant’s intent

during the initial encounter with Glodrey was to merely show off the gun; the

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Defendant could not be intending to use the gun during a drug trafficking crime

which he was unaware was about to happen.” Aplt. Br. at 18. That he did not

know that Glodrey was coming to purchase drugs is irrelevant; he had the gun in

his possession because the police had been driving by. If anything, his having the

gun in his possession even though he did not know that Glodrey was coming

suggests that he did not have it merely to show it to a friend. W e hold that the

evidence was sufficient to sustain the verdict.

III.   C ON CLU SIO N

       W e AFFIRM the judgment of the district court.

                                       ENTERED FOR THE COURT


                                       Harris L Hartz
                                       Circuit Judge




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