                            NOT RECOMMENDED FOR PUBLICATION
                                    File Name: 06a0853n.06
                                   Filed: November 21, 2006

                                                 No. 05-5958

                               UNITED STATES COURT OF APPEALS
                                    FOR THE SIXTH CIRCUIT


UNITED STATES OF AMERICA,                           )
                                                    )
        Plaintiff-Appellee,                         )
                                                    )
v.                                                  )    ON APPEAL FROM THE UNITED
                                                    )    STATES DISTRICT COURT FOR THE
GEORGE BRYANT,                                      )    EASTERN DISTRICT OF TENNESSEE
                                                    )
        Defendant-Appellant.                        )
                                                    )    OPINION


        Before: GILMAN and GRIFFIN, Circuit Judges; and GWIN, District Judge.*

        RONALD LEE GILMAN, Circuit Judge. A federal grand jury indicted George Bryant,

Crystal Keel, Scottie Magouirk, and Richard Whited on ten counts relating to the manufacture and

use of methamphetamine. Following a jury trial in Bryant’s case and guilty pleas in the cases of

Keel, Magouirk, and Whited, the district court imposed sentences of 100, 188, 151, and 151 months

in prison, respectively. Bryant raises the following two challenges to his convictions: (1) that the

evidence presented at trial was insufficient to support them, and (2) that the district court’s allowance

of certain unobjected-to testimony by a government witness constituted plain error and requires

reversal. He raises no challenges to the length of his sentence. For the reasons set forth below, we

AFFIRM the judgment of the district court.



        *
          The Honorable James S. Gwin, United States District Court for the Northern District of Ohio, sitting by
designation.
No. 05-5958
United States v. Bryant


                                       I. BACKGROUND

A.     Procedural background

       A federal grand jury charged Bryant in three counts of the ten-count indictment that also

named Keel, Magouirk, and Whited. Count One charged all four individuals with a conspiracy to

knowingly manufacture methamphetamine between January of 2001 and April 22, 2004, in violation

of 21 U.S.C. §§ 841(a)(1), 841(b)(1)(C), and 846. Under Count Nine, the grand jury charged Bryant

and Whited with the related crime of aiding and abetting each other in knowingly attempting to

manufacture methamphetamine on April 22, 2004, in violation of the same three statutes as well as

18 U.S.C. § 2. Count Ten similarly charged Bryant and Whited with aiding and abetting each other

on April 22, 2004 in knowingly possessing equipment, chemicals, products, and materials that could

be used to manufacture methamphetamine, with the additional knowledge that such materials would

in fact be used to manufacture methamphetamine, all in violation of 21 U.S.C. § 843(a)(6) and 18

U.S.C. § 2. Unlike his codefendants, who pled guilty, Bryant demanded a jury trial. A one-day jury

trial on February 23, 2005 resulted in a verdict of guilty as to all three counts against him. On June

6, 2005, the district court sentenced Bryant to 100 months in prison. This timely appeal followed.

B.     Factual background

       The government called only two witnesses at Bryant’s trial: Dale Hesketh, an agent with the

Tennessee Alcoholic Beverage Commission, and Josh Melton, an agent with the Commission as well

as a task-force officer with the federal Drug Enforcement Administration (DEA). Bryant does not

dispute either agent’s testimony or the physical evidence introduced against him. He instead


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United States v. Bryant

contends that, taken together, the testimonial and physical evidence was insufficient to support his

convictions. The relevant facts are set forth below.

       1.      The search of Whited’s trailer

       Hesketh and Melton went to Whited’s trailer on April 22, 2004 to execute a state arrest

warrant for Whited. Based on Melton’s work with the DEA, the agents had reason to believe that

Whited and others were manufacturing methamphetamine on the premises. After Melton found

Whited alone in a detached garage near the trailer, he placed Whited under arrest. Melton then asked

Whited for consent to search the premises. Whited agreed, and led the agents to the back door of

the trailer, which he opened with the assistance of those inside. Upon entering, Hesketh immediately

noticed Bryant and another man, later identified as Chad Campbell, seated on the floor of a bedroom

directly in front of where Hesketh was standing. After identifying himself as a law-enforcement

officer and after asking Bryant and Campbell to stand with their hands up, Hesketh performed a pat

down of Bryant. Hesketh found and seized a single glass pipe in Bryant’s pocket as well as several

more glass pipes and a blue plastic envelope elsewhere on Bryant’s person. A lab test later

determined that the substance in the envelope was methamphetamine.

       Hesketh then escorted Bryant and Campbell to Melton, who was in another room, and

continued searching the trailer. In the bathroom toilet, Hesketh observed two plastic baggies

containing what appeared to be white powder. Melton independently observed the baggies and later

smelled their contents. Both the fine grain of the powder and the pungency of its smell led Melton

to believe that the baggies contained methamphetamine. Lab tests later determined that the white

powder was pseudoephedrine, which when crushed is a precursor to the manufacture of

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No. 05-5958
United States v. Bryant

methamphetamine. The combined weight of the pseudoephedrine in the two baggies was 12.7

grams.

         Hesketh’s search ultimately uncovered numerous additional methamphetamine paraphernalia,

all of which were admitted at trial either in their actual physical form or via photograph. These items

included an unopened bottle of pseudoephedrine, digital scales, crystal iodine, five bottles of

hydrogen peroxide, coffee filters, rubber tubing, propane torches, a glass pyrex dish containing what

appeared to Melton to be red phosphorus residue, and an entire box of glass tubes of the type

commonly used to smoke methamphetamine. A partially used bottle of crystal iodine and the digital

scales were found in a trash can in the bathroom. Iodine and red phosphorous function jointly as

reagents in the manufacture of methamphetamine, and digital scales are typically used to measure

the reagents and the pseudoephedrine precursor to ensure a proper ratio between the two. When

crystal iodine, a rare substance, is unavailable, hydrogen peroxide can be mixed with a less pure

tincture of iodine to create the desired crystal form. Coffee filters assist in the manufacturing process

at numerous stages.        Torches, finally, heat the glass tubes that are used to smoke the

methamphetamine.

         2.     The interrogation of Bryant

         After having been read his Miranda rights while still at the trailer, Bryant agreed to talk with

Melton, first in the presence of Whited and then alone. In the presence of Whited, Bryant admitted

that he had thrown the crystal iodine and the digital scales into the trash can in the bathroom. Bryant

hesitated, however, when Melton asked whether the white powder in the baggies found in the toilet

was pseudoephedrine or methamphetamine. Only after consulting with and receiving permission

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No. 05-5958
United States v. Bryant

to answer from Whited did Bryant admit that the powder was “ephedrine,” shorthand for

pseudoephedrine.

       Later, outside the presence of Whited, Bryant insisted that he did not own either the crystal

iodine or the digital scales that he had thrown in the bathroom trash can. He nevertheless told

Melton that “I’ll take credit for it if it will keep everybody else out of trouble.” Melton responded

by saying that because their conversation was now private, Bryant “should not claim something

that’s not yours.” Bryant replied that “what goes on here in the house is, you know, adult decisions,

and between adults, and the way I look at it, we’re not hurting anybody.” He became “very

aggravated” with Melton shortly thereafter, telling Melton that “you’re not going to trick me with

the friendly talk,” whereupon the conversation between the two ended.

       When later asked at trial to provide the context for Bryant’s statements, Melton said that by

“adult decisions” he understood Bryant to have been referring to the manufacture and use of

methamphetamine. Bryant did not object to this testimony. Finally, in another conversation with

Melton that took place sometime after the April 22, 2004 search of Whited’s trailer, Bryant admitted

that he had consistently used methamphetamine prior to that date in the amount of half an “eight-

ball” per use, which is approximately 1.75 grams.


                                         II. ANALYSIS

A.     The government’s evidence at trial was sufficient to support Bryant’s convictions

       1.      Standard of review




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No. 05-5958
United States v. Bryant

       In arguing insufficiency of the evidence, Bryant “bears a very heavy burden.” See United

States v. Spearman, 186 F.3d 743, 746 (6th Cir. 1999). Evidence in a criminal case is deemed

sufficient if we determine that, “after viewing the evidence in the light most favorable to the

government, any rational trier of fact could have found the elements of the crime beyond a

reasonable doubt.” United States v. Gardiner, 463 F.3d 445, 456 (6th Cir. 2006) (citing Jackson v.

Virginia, 443 U.S. 307, 319 (1979)). We view the evidence in the light most favorable to the

government by drawing all reasonable inferences from the testimony in its favor. United States v.

Abdullah, 162 F.3d 897, 903 (6th Cir. 1998).

       2.      Discussion

       The evidence offered against Bryant at trial was more than sufficient to support his

convictions.    Bryant was convicted under Count One of a conspiracy to manufacture

methamphetamine, in violation of 21 U.S.C. §§ 841(b)(1)(C) and 846. In order to establish a

conspiracy under 21 U.S.C. § 846, the government must prove beyond a reasonable doubt “the

existence of an agreement to violate the drug laws and that each conspirator knew of, intended to join

and participated in the conspiracy.” United States v. Pearce, 912 F.2d 159, 161 (6th Cir. 1990). The

government need not prove the existence of a formal agreement; rather, “a tacit or material

understanding among the parties is sufficient to show a conspiracy.”               Id.   In addition,

“[c]ircumstantial evidence alone is sufficient to sustain a conviction and such evidence need not

remove every reasonable hypothesis except that of guilt.” Spearman, 186 F.3d at 746 (quotation

marks omitted); see also United States v. Stone, 748 F.2d 361, 363 (6th Cir. 1984) (“[W]e hold once

and for all that our court on appeal will reverse a judgment for insufficiency of the evidence only if

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No. 05-5958
United States v. Bryant

this judgment is not supported by substantial and competent evidence upon the record as a whole,

and that this rule applies whether the evidence is direct or wholly circumstantial.”). Finally, once

the government has established the existence of a conspiracy, “evidence connecting a particular

defendant to the conspiracy need only be slight.” United States v. Gibbs, 182 F.3d 408, 421 (6th Cir.

1999) (quotation marks omitted). “A buyer/seller relationship alone is not enough to establish

participation in the conspiracy, but further evidence indicating knowledge of and participation in the

conspiracy can be enough to link the defendant to the conspiracy.” Id. at 421-22.

       In the present case, the government offered both physical and testimonial evidence against

Bryant. The physical evidence consisted of the numerous objects seized or photographed by agents

Hesketh and Melton during their arrest of Bryant and his codefendants at Whited’s trailer on April

22, 2004. Among these objects were the finished methamphetamine product found in an envelope

on Bryant’s person and the ground pseudoephedrine tablets found in the bathroom toilet.

       Agent Melton’s testimony provided additional corroborating evidence that (1) Bryant and his

codefendants were in fact present at the home when and where Hesketh and Melton discovered the

physical evidence, (2) Bryant admitted to Melton that he had thrown the ground pseudoephedrine

into the toilet and a bottle of crystal iodine and a digital scale into the bathroom trash can after the

agents had arrived at the trailer, (3) Bryant, when asked by Melton to identify the substance in the

toilet, first looked to Whited for permission before answering Melton’s question, (4) Bryant told

Melton that “what goes on in the house is, you know, adult decisions, and between adults, and the

way I look at it, we’re not hurting anybody,” and (5) Bryant refused to answer Melton when the latter

asked who was manufacturing methamphetamine. Melton opined that these several statements by

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No. 05-5958
United States v. Bryant

Bryant, when coupled with the physical evidence observed at and retrieved from the trailer, indicated

“obviously, that the manufacture of methamphetamine was occurring.”

       Contrary to Bryant’s argument, the government offered far more than Bryant’s “mere

presence” as evidence that he was involved with his codefendants in a conspiracy to manufacture

methamphetamine. Bryant’s assertion that because “the defendant-appellant was in a trailer where

items were found which would be used to make meth does not of him make a meth-maker or a

conspirator” is, although an accurate statement of the law, an entirely insufficient summary of the

evidence against him. At least one rational juror could have found that, based on the evidence

presented, Bryant was guilty beyond a reasonable doubt of conspiring to manufacture

methamphetamine. This conclusion, moreover, applies equally to the intent-based challenges that

Bryant raises to his two aiding-and-abetting convictions, in defense of which Bryant offers no legal

or factual argument beyond the same meritless “mere presence” claim.

B.     The admission of Agent Melton’s statements did not constitute plain error

       1.      Standard of review

       Bryant further argues that the district court improperly allowed Agent Melton to “decode”

for the jury certain statements that Bryant had made to Melton at the time of Bryant’s arrest. First,

Bryant claims that Melton engaged in total speculation when Melton opined that Bryant was

referring to the manufacture of methamphetamine when Bryant said that “adult decisions” were

being made in the trailer. Bryant fails to mention, however, that Melton offered this opinion

specifically in response to the government’s question on direct examination as to the “context” into

which Bryant’s statement fit.       Second, Bryant claims that Melton, again without proper

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No. 05-5958
United States v. Bryant

“qualifications or special talents,” testified that the phrase “painting a car” meant “collecting drug

money.” This second claim is meritless for the simple reason that, as the government notes in its

brief, neither the phrase nor Melton’s interpretation of it is to be found anywhere in the record.

        As to the first instance of “decoding,” we ordinarily review the admission of expert

testimony, as well as evidentiary decisions generally, under the deferential abuse-of-discretion

standard. United States v. Bender, 265 F.3d 464, 472 (6th Cir. 2001). Because Bryant did not object

to Melton’s allegedly impermissible statements at trial, however, we review Bryant’s challenge to

their admissibility under the even more deferential plain-error standard. See United States v.

Swafford, 385 F.3d 1026, 1030 (6th Cir. 2004), cert. denied, 543 U.S. 1169 (2005). Plain error is

difficult to demonstrate and exists only where, at a minimum, there is “(1) error, (2) that is plain, and

(3) that affects substantial rights.” Id. at 1028. Even then, a plain-error determination remains

subject to the discretion of the reviewing court, which may grant relief based upon the forfeited error,

“but only if (4) the error seriously affects the fairness, integrity, or public reputation of judicial

proceedings.” Id. If we determine that no error exists, of course, “our inquiry is at an end.” United

States v. Thomas, 11 F.3d 620, 630 (6th Cir. 1993).

        2.      Discussion

        This court “regularly allows qualified law enforcement personnel to testify on characteristics

of criminal activity, as long as appropriate cautionary instructions are given, since knowledge of such

activity is generally beyond the understanding of the average layman.” Swafford, 385 F.3d at 1030.

Drug-dealing is one such activity.       See id. (allowing the agent to testify as an expert on

methamphetamine investigations); United States v. Thomas, 74 F.3d 676, 682 (6th Cir. 1996)

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No. 05-5958
United States v. Bryant

(“Courts have overwhelmingly found police officers’ expert testimony admissible where it will aid

the jury’s understanding of an area, such as drug dealing, not within the experience of the average

juror.”), abrogated on other grounds by Morales v. American Honda Motor Co., 151 F.3d 500, 515

(6th Cir. 1998).

        Agent Melton’s testimony easily fits within these precedents. He was and still is a law-

enforcement officer. His testimony related to characteristics of methamphetamine production and

drug use generally, both types of criminal activity with which he had considerable familiarity given

his training and experience as an agent of the DEA. He even testified that he once had taught a

course about methamphetamine manufacturing to trainees of a Tennessee state agency. The district

court, moreover, specifically explained that although Melton would be allowed to testify about those

matters to which his expertise extended, such as the manufacture and production of

methamphetamine, it would not certify Melton as an expert or “put my particular imprimatur on his

expertness.” Bryant’s Daubert-reliability argument is accordingly misplaced. In addition, the

district court issued not one, but two separate limiting instructions to the jury sua sponte, clarifying

that

        [Agent Melton is] not qualified to offer an opinion about who was doing what. His
        opinion was the opinion that someone was making methamphetamine there, but his
        opinion as to who was doing it this witness cannot render that. That will have to be
        your opinion, your decision.

The district court later reiterated that

        [y]ou do not have to accept an expert’s opinion. In deciding how much weight to
        give it, you 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 that it deserves.

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No. 05-5958
United States v. Bryant

Based on the record in this case, we conclude that the admission of Melton’s testimony did not

constitute error of any kind, much less that of the plain variety.


                                       III. CONCLUSION

       For all of the reasons set forth above, we AFFIRM the judgment of the district court.




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