                                                                NOT PRECEDENTIAL

                      UNITED STATES COURT OF APPEALS
                           FOR THE THIRD CIRCUIT
                                _____________

                                     No. 07-2479
                                    _____________

                           UNITED STATES OF AMERICA

                                           v.

                                  DENROY GAYLE,
                                         Appellant
                                   _____________

                      Appeal from the United States District Court
                        for the Eastern District of Pennsylvania
                            (D.C. Criminal No. 05-cr-00357)
                     District Judge: Honorable Lawrence F. Stengel
                                     _____________

                      Submitted Under Third Circuit LAR 34.1(a)
                                 November 4, 2010

               Before: SCIRICA, RENDELL and ROTH, Circuit Judges

                          (Opinion Filed: November 5, 2010)
                                   _____________

                              OPINION OF THE COURT
                                  _____________

RENDELL, Circuit Judge.

      On May 15, 2007, the Appellant, Denroy Gayle, was convicted by a jury of three

counts involving possession of drugs and guns. He was sentenced to serve a total of 180

months. On appeal, Gayle raises six issues relating to his conviction and sentence. We

review each issue individually below.
                                      Crack/Powder Ratio

        Gayle challenges his sentence based on our earlier ruling in United States v.

Russell, 564 F.3d 200 (3d Cir. 2009), where we reversed the District Court because it did

not understand that it could deviate from the United States Sentencing Guidelines‟

crack/powder ratio when sentencing. Gayle similarly challenges his sentence by urging

that the District Court here was unaware of its ability to deviate from the crack/powder

ratio, and thus, there was reversible error. We disagree.

        Gayle did not raise this issue or request a variance from the guidelines at his

sentencing, so our review is for plain error. To establish plain error, the defendant must

prove that there is an “(1) „error,‟ (2) that is „plain,‟ and (3) that „affect[s] substantial

rights.‟” Johnson v. United States, 520 U.S. 461, 467 (1997); quoting United States v.

Olano, 507 U.S. 725, 732 (1993). Here, Gayle is unable to establish the first prong of the

test. Gayle even concedes in his brief that the District Court correctly calculated the

guidelines at the time of sentencing. There was no reversible error under the facts of this

case.



                                     Identity of Informant

        Gayle challenges the District Court‟s denial of his motion to compel the

government to disclose the identity of the confidential informant involved in controlled

buys which resulted in Gayle‟s prosecution.         We review the District Court‟s ruling



                                                2
under an abuse of discretion standard. United States v. Johnson, 302 F.3d 139, 149 (3d

Cir. 2002). We find no abuse of discretion.

       Courts have long recognized the government‟s right to withhold the identity of

informants from defendants. Roviaro v. United States, 353 U.S. 53 (1957); see also

McCray v. State of Illinois, 386 U.S. 300, 309 (1967). Disclosure of an informant‟s

identity is required only when a defendant can make an adequate showing that disclosure

is, both, “relevant and helpful to the defense” and “essential to a fair determination of a

cause.” Roviaro, 353 U.S. at 60-61.

       Gayle argues that the identity of the informant is relevant, helpful, and essential to

a fair determination of his cause because the search warrant which resulted in his arrest

was rooted in the controlled buys. Gayle contends that the informant played a major role

in the buys, and thus, the informant should be made available for questioning to challenge

the evidence which supported the search warrant. Additionally, Gayle claims he should

have the opportunity to challenge the informant‟s identification of Gayle.

       The District Court concluded that while it may have been somewhat relevant and

helpful to Gayle‟s defense, Gayle‟s interest did not meet the required standard, because it

was not essential to a fair determination of his case, given the fact that he was not

charged with the controlled buys in the indictment, but only with guns and drugs

discovered later. The officer who observed the controlled buys took the stand and was

available for questioning on all aspects of the buys. The buys resulted in identifications,

by not only the informant, but also the officer, who, based on his observations of the

buys, later identified Gayle through police photos. Finally, the cash from the transactions

                                              3
was found on Gayle during the search. In light of this substantial amount of evidence in

support of the warrant and the identification of Gayle, as well as Gayle‟s opportunity to

question the officer on the stand, and with the protective policy of informants long held

by this Court in mind, it was not an abuse of discretion for the District Court to conclude

that Gayle‟s interest in the identity of the informant was not sufficient to require

disclosure to induce the release of the identity of the informant. We will affirm the denial

of Gayle‟s motion to compel.



                                     Expert Testimony

       Gayle contends that the District Court erred by admitting the expert testimony

offered by the Government. Gayle claims that, first, the testimony was unreliable, and,

second, the court erred by not holding a Daubert hearing prior to admitting the testimony.

We review a district court‟s evidentiary ruling under an abuse of discretion standard.

United States v. Mathis, 264 F.3d 321, 335 (3d Cir. 2001). We find that the Court did not

commit an abuse of discretion by admitting the expert testimony.

       First, we have repeatedly held that testimony that is based on experience and

training relating to the modus operandi of drug trafficking is a reliable field for expert

testimony. United States v. Perez, 280 F.3d 318, 341-42 (3d Cir. 2002). See also United

States v. Watson, 260 F.3d 310, 307 (3d Cir. 2001); United States v. Gibbs, 190 F.3d 188,

211 (3d Cir. 1999). Second, Gayle waived his claim to a Daubert hearing by agreeing,

prior to trial, to decide the issue on the memoranda. In light of our precedent and Gayle‟s



                                              4
waiver, we find that the District Court did not abuse its discretion in admitting the expert

testimony.



                                      Controlled Buys

        Gayle challenges the District Court‟s admission of Rule 404(b) “other acts”

evidence - namely the controlled drug purchases - urging that it did not pass muster under

Rule 403 of the Federal Rules of Evidence. We usually review an evidentiary ruling of a

district court for an abuse of discretion. United States v. Himelwright, 42 F.3d 777, 781

(3d Cir. 1994), citing United States v. Sampson, 980 F.2d 883, 886 (3d Cir. 1992).

However, here, the District Court did not engage in a 403 analysis on the record.

Therefore, we will not review for abuse of discretion, but will conduct the Rule 403

weighing ourselves. Id.

        Rule 403 states:

        Although relevant, evidence may be excluded if its probative value is

        substantially outweighed by the danger of unfair prejudice, confusion of the

        issues, or misleading the jury, or by considerations of undue delay, waste of

        time, or needless presentation of cumulative evidence. Fed. R. Evid. 403.

Evidence is unfairly prejudicial only if it has „an undue tendency to suggest decision on

an improper basis, commonly, though not necessarily, an emotional one.‟ Advisory

Committee‟s Note, Fed. R. Evid. 403.” Carter v. Hewitt, 617 F.2d 961, 972 (3d Cir.

1980)



                                              5
       Gayle urges that the evidence is more prejudicial than probative because the

officer who testified to the buys was “a great distance away and in difficult

lighting conditions.” Additionally, Gayle argues that the evidence is confusing

because the Government failed to charge these specific acts with the crimes

alleged and, therefore, the evidence could cloud the judgment of the jury. We

disagree with Gayle‟s argument. Clearly the evidence was damaging; however, it

was certainly relevant and probative as going to the knowledge, intent, and

identity in relation to the crimes he was charged with. The weakness in the

evidence goes to its weight, not to its admissibility. Moreover, the District Court

instructed the jury as to how it should consider the evidence. We will affirm the

District Court‟s ruling admitting the evidence of the controlled buys.



                                     Firearms Charges

       Gayle challenges his firearms convictions by stating that the evidence does not

support the guilty verdicts. We review a challenge of a jury verdict under a particularly

deferential standard. United States v. Dent, 149 F.3d 180, 187 (3d Cir. 1998). We view

the evidence in a light most favorable to the government to determine whether any

rational trier of fact could come to the conclusion of guilt beyond a reasonable doubt

based on the evidence. United States v. Wolfe, 245 F.3d 257 (3d Cir. 2001). In doing so,

we can “draw all reasonable inferences in favor of the jury‟s verdict.” United States v.

Anderskow, 88 F.3d 245, 251 (3d Cir. 1996). We will affirm the convictions.



                                             6
       Gayle specifically challenges the jury‟s finding of the element of possession as

part of his convictions. Gayle claims that because he never actually possessed the

weapon, the element was not proven beyond a reasonable doubt. Despite this fact,

Gayle‟s claim fails, because actual possession is not required to satisfy the element of

possession; rather constructive possession will suffice. See United States v. Sparrow, 371

F.3d 851, 853 (3d Cir. 2004). We have held that “constructive possession exists if an

individual „knowingly has both the power and the intention at a given time to exercise

dominion or control over a thing, either directly or through another person or persons.‟”

United States v. Iafelice, 978 F.2d 92, 96 (3d Cir. 1992)(quoting United States v.

Blackston, 940 F.2d 877, 883 (3d Cir. 1997)). The jury was instructed prior to

deliberations as to the definition of constructive possession, and that it can satisfy the

element of possession for Gayle‟s charged crimes.

       The jury considered evidence of the guns being found in Gayle‟s residence; that

the guns were found with or near the drugs; that Gayle was identified by the informant

and the police officer as the drug dealer; that Gayle was present when the search was

commenced; that the drugs found with the gun were packaged in the same manner as the

drugs which Gayle had sold to the informant during the controlled buys; that the scale

used to package the drugs had Gayle‟s fingerprints all over it; and testimony by a

narcotics expert about the links between the drugs and guns, and how the location of the

guns was indicative of a use in furtherance of the drug trade. The mere fact that the guns

were not found in Gayle‟s physical possession does not control the analysis. Rather, all

of this evidence, when viewed under the deferential standard set forth above, clearly

                                              7
supports a rational juror‟s conclusion that the element of possession required to convict

Gayle for the firearms crimes was satisfied. We will therefore affirm the jury verdicts.



                                    Ineffective Counsel

       Finally, Gayle raises an issue of ineffective assistance of counsel. We have held

that direct appeal, generally1, is not the appropriate forum for this type of challenge. Such

claims are reserved for collateral proceedings pursuant to 28 U.S.C. § 2255, when the

record for such claims may properly be developed. Massaro v. United States, 538 U.S.

500, 504-05 (2003); United States v. Thornton, 327 F.3d 268, 271-72 (3d Cir. 2003).

Therefore, we will not review this issue.

       In light of the above discussions, we will affirm Gayle‟s convictions and sentence.




   1
     There is a very narrow exception to this rule where the existing record establishes
actual ineffectiveness. United States v. Headley, 923 F.2d 1079, 1083 (3d Cir. 1991).
Here, the facts of record would not allow for an effective review.
                                              8
