     Case: 09-50359     Document: 00511257391          Page: 1    Date Filed: 10/07/2010




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT  United States Court of Appeals
                                                    Fifth Circuit

                                                 FILED
                                                                           October 7, 2010
                                       No. 09-50359
                                                                            Lyle W. Cayce
                                                                                 Clerk
UNITED STATES OF AMERICA,

                                                   Plaintiff - Appellee

v.

RANDELL L. MCKOY; SHANNON L. SMITH,

                                                   Defendants - Appellants


                   Appeals from the United States District Court
                         for the Western District of Texas
                              USDC No. 7:08-CR-241


Before CLEMENT, SOUTHWICK, and HAYNES, Circuit Judges.
PER CURIAM:*
        Randell L. McKoy and Shannon L. Smith were convicted of possession of
a firearm in furtherance of a drug trafficking offense, and of aiding and abetting
with intent to distribute cocaine. Smith also was convicted of being a felon in
possession of a firearm. Both appeal. We REVERSE McKoy’s conviction for the
firearm possession, VACATE his sentence under that count, and REMAND. We
AFFIRM in all other respects.




       *
         Pursuant to 5TH CIR . R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .
R. 47.5.4.
   Case: 09-50359    Document: 00511257391 Page: 2         Date Filed: 10/07/2010
                                 No. 09-50359

                      FACTS & PROCEDURAL HISTORY
      The Police Department of Odessa, Texas organized a controlled drug buy.
An informant arranged to meet Randell McKoy at a restaurant in a shopping
center to purchase crack cocaine.       About an hour after the meeting was
arranged, McKoy called the informant to say he was outside the restaurant in
a gray Lincoln pickup truck. Plainclothes officers watching the area confirmed
there was an unoccupied gray Lincoln pickup truck in front of the restaurant.
One officer saw McKoy and Shannon Smith walking down the sidewalk. That
officer overheard McKoy say to Smith, “he is on his way.” McKoy and Smith
then entered a nail salon next door to the restaurant.
      McKoy exited the nail salon and was using his cell phone in front of the
Lincoln. At this point, the officers decided to arrest the men. Officers detained
McKoy about 20 feet from the salon. McKoy was handcuffed and searched. A
bag of cocaine was found in his waistband. Smith was still in the nail salon
when officers entered, detained, and searched him. Officers found $1,760 in cash
in his pockets.
      Officers then searched the Lincoln pickup truck. They found a loaded .45
caliber pistol between the center console and the driver’s seat.         The truck
belonged to Smith’s aunt. Initially, Smith stated the gun belonged to his aunt
and officers could call her to confirm that fact. An officer testified that McKoy
denied knowledge of the drugs in his waistband.
      Later, officers executed a search warrant at Smith’s home. There, they
found a black pistol case with the same serial number as the gun retrieved from
the Lincoln pickup truck, ammunition that could be used with that gun, and
ballistic body armor. Officers seized a satellite television bill for that address in
Smith’s name. They also found a receipt for car repair work with McKoy’s name
on it, dated about a month prior to the arrest.
      Both defendants were charged with (1) aiding and abetting possession
with intent to distribute 50 or more grams of cocaine base and (2) possession of

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a firearm in furtherance of a drug trafficking crime. In addition, Smith was
charged with being a felon in possession of a firearm. They were tried together.
        McKoy and Smith each testified at trial. McKoy admitted possession of
the drugs. He denied knowledge of the gun’s presence in the vehicle. He stated
that he and Smith never spoke about the gun, and he had not seen it. McKoy
also denied that Smith knew that a drug transaction was occurring.
        At trial, Smith admitted knowledge of the gun, the gun case, and the
ammunition. He testified that he did not load the gun, though he knew it was
loaded. Smith denied knowing that McKoy was engaged in a drug transaction
at the time of their arrest. He stated that the $1,760 found in his pockets was
money from his business of renting inflatable castles for children’s parties. He
had the money with him because he wanted to buy a computer in the shopping
center. Smith also stated McKoy could not have known about the gun in the
vehicle, because he could not have seen it and they did not discuss it.
        The jury found both defendants guilty on all counts. After judgment, they
filed timely notices of appeal.
                                  DISCUSSION
A.      Sufficiency of the Evidence
        McKoy and Smith moved for a judgment of acquittal at the close of the
Government’s case and at the close of the evidence. These motions preserved for
our de novo review the issue of the sufficiency of the evidence. See United States
v. Percel, 553 F.3d 903, 910 (5th Cir. 2008).
        We will uphold a verdict if a reasonable trier of fact could conclude that
the elements of the offense were proven beyond a reasonable doubt, “viewing the
evidence in the light most favorable to the verdict and drawing all reasonable
inferences from the evidence to support the verdict.” Id. (footnote omitted). Our
task is not to “weigh evidence or assess the credibility of witnesses”; we
recognize “the jury is free to choose among reasonable constructions of the
evidence.” United States v. Ramos-Cardenas, 524 F.3d 600, 605 (5th Cir. 2008).

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Direct and circumstantial evidence are weighed equally; it is not necessary that
the evidence exclude every reasonable hypothesis of innocence. United States
v. Mendoza, 226 F.3d 340, 343 (5th Cir. 2000).
      1.      Smith: Aiding and Abetting Possession with Intent to Distribute
      Smith argues the evidence was insufficient to show he was guilty of
conspiracy to distribute 50 or more grams of cocaine base. The problem with this
argument is that Smith was not convicted of conspiracy. Instead, the charge was
for aiding and abetting possession with intent to distribute 50 or more grams of
cocaine base.
      Because Smith has not argued that the evidence was insufficient to
support his conviction for aiding and abetting, he has abandoned this issue on
appeal. United States v. Lindell, 881 F.2d 1313, 1325 (5th Cir. 1989).
      2.      Smith and McKoy: Possession of a Firearm in Furtherance of a
              Drug Trafficking Crime
      Smith and McKoy were each sentenced as an individual who “during and
in relation to any . . . drug trafficking crime . . . uses or carries a firearm, or who,
in furtherance of any such crime, possesses a firearm.” 18 U.S.C. § 924(c)(1)(A).
Possession of a firearm “is ‘in furtherance’ of the drug trafficking offense when
it furthers, advances, or helps forward that offense.”              United States v.
Ceballos-Torres, 218 F.3d 409, 411 (5th Cir.), amended in part, 226 F.3d 651 (5th
Cir. 2000).
      Smith admitted that he possessed the firearm. His assertion is that he did
not possess it “in furtherance of” a drug trafficking crime because the firearm
was not readily accessible to him at the time of his arrest, he did not possess any
drugs, and the firearm did not actually further the drug trafficking offense.
      We consider several factors in determining whether firearm possession is
“in furtherance” of a drug trafficking offense:
      the type of drug activity that is being conducted, accessibility of the
      firearm, the type of weapon, whether the weapon is stolen, the


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      status of the possession (legitimate or illegal), whether the gun is
      loaded, proximity to drugs or drug profits, and the time and
      circumstances under which the gun is found.
Id. at 414-15. A firearm may advance a drug trafficking offense by providing
protection in the event the transaction becomes dangerous. Id. at 412.
      Based on these factors, a reasonable trier of fact could conclude that the
evidence established beyond a reasonable doubt that Smith’s firearm possession
furthered, advanced, or helped forward the drug trafficking offense. See id. at
410-11. The firearm was found between the driver’s seat and the center console
of the truck that Smith drove to the location of the planned drug transaction.
The firearm was readily accessible and in close proximity to the drugs while they
were in the truck. The firearm was fully loaded with 13 rounds of ammunition
and the slide was in the forward position, ready for use. Though Smith was not
carrying the gun, he could have reached it relatively quickly. See United States
v. Charles, 469 F.3d 402, 406-07 (5th Cir. 2006). A rational trier of fact could
conclude that Smith possessed the firearm in furtherance of the drug sale. See
Percel, 553 F.3d at 910; see also Ceballos-Torres, 218 F.3d at 410-11.
      As to McKoy, the Government’s theory at trial was that McKoy and Smith
had joint possession of the gun. Gun “possession can be established by (1)
actual, physical possession of the firearm, (2) sole control and occupancy of a
place where a firearm is found, or (3) joint occupancy of a place where a firearm
is found, combined with some evidence of the defendant’s access to and
knowledge of the firearm.” United States v. Anderson, 559 F.3d 348, 353 (5th
Cir. 2009). The evidence must show “at least a plausible inference” that McKoy
knew of and had access to the gun. United States v. Fields, 72 F.3d 1200, 1212
(5th Cir. 1996).
      The test for determining whether possession is established in joint
occupancy cases is a “commonsense, fact-specific” one.         United States v.
Mergerson, 4 F.3d 337, 349 (5th Cir. 1993). Mere joint occupancy is not enough;


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“something else (e.g., some circumstantial indicium of possession) is required.”
Id. The Government thus had to prove that besides merely occupying the
vehicle, McKoy also had knowledge of and access to the firearm.
      In its case in chief, the Government presented evidence about the planned
drug sale and the location of the gun in the vehicle. The evidence that allegedly
connected McKoy to the firearm was that he could have seen the gun in or
around the vehicle or that he could have seen the gun at Smith’s house.
      The fact that the gun was in the vehicle does not support that McKoy had
knowledge of it as a passenger. While searching the vehicle, Sergeant Fletcher
saw the gun only when she leaned down to look under the driver’s seat. At that
point, she was able to see the butt of the gun against the side of the seat. The
gun was between the driver’s seat and the center console. When asked if the gun
was exposed, Sergeant Fletcher replied, “No, not really.” There is nothing to
support that McKoy knew of the gun as a result of its location.
      Alternatively, the Government argues that McKoy had knowledge of the
gun arising from his prior presence in Smith’s home. The sole piece of evidence
to support this inference is a receipt with McKoy’s name on it, dated about one
month prior to the arrest, found in Smith’s home. The Government asserts that
because of this evidence, the jury could conclude McKoy saw the gun while he
was at Smith’s house and saw him place it in the vehicle. This is speculation
only and not an inference. This evidence places McKoy at Smith’s home at some
point in the month prior to the arrest. It does not indicate that McKoy was there
on the day of his arrest, that he ever saw the gun, or that he knew it was in the
vehicle at the time of his arrest.
      Viewing all inferences in the light most favorable to the verdict, we find
insufficient evidence for the jury to conclude that McKoy had knowledge of and
access to the firearm.     The Government has thus failed to establish the
possession element of this crime.



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B.      Admission of Special Agent Sutherland’s Testimony
        McKoy argues the district court erred in allowing Special Agent David
Sutherland to comment on the veracity of other witnesses. We review a properly
preserved objection, as this was, to an evidentiary ruling for abuse of discretion.
See United States v. Clark, 577 F.3d 273, 287 (5th Cir. 2009).
        At trial, McKoy denied telling Sutherland at the scene that he did not
possess the cocaine found on him. McKoy testified, “I didn’t tell him that. I told
him that I wasn’t going to talk to him until I got my lawyer.” On rebuttal, the
Government called Sutherland. He testified that McKoy in fact had denied
possession of the cocaine and said he did not understand why he was being
arrested. Sutherland also was asked whether he questioned McKoy further on
the subject, and responded, “As to that part of the discussion, I am pretty sure
I told him I didn’t believe him and I didn’t think these officers would lie.”
McKoy’s counsel objected, but the district court overruled the objection. The
district court found it not improper opinion testimony because Sutherland was
testifying about what he believed he said to McKoy, and was not expressing his
current opinion about a witness’s veracity.
        Although Sutherland was allowed to testify that he questioned McKoy’s
truthfulness, his testimony explained only what Sutherland had told McKoy
during a post-arrest interview. See United States v. Finley, 477 F.3d 250, 260-62
(5th Cir. 2007). In one decision, we reversed a conviction because, without a
proper predicate, the Government presented testimony that the defendant and
his witnesses were not of truthful character and their testimony was not to be
believed. United States v. Dotson, 799 F.2d 189, 191-94 (5th Cir. 1986). No such
error occurred here.
        McKoy has not shown that the district court abused its discretion in
admitting Sutherland’s testimony. See Finley, 477 F.3d at 260-62.




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                              CONCLUSION
     The evidence does not establish McKoy’s knowledge of and access to the
firearm. Therefore, we REVERSE McKoy’s conviction for possession of a firearm
in furtherance of a drug trafficking crime, VACATE his sentence under that
count, and REMAND for further proceedings consistent with this opinion.
     In all other respects, we AFFIRM.




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