                              UNITED STATES COURT OF APPEALS
                                          Tenth Circuit
                               Byron White United States Courthouse
                                        1823 Stout Street
                                     Denver, Colorado 80294
                                         (303) 844-3157
Patrick J. Fisher, Jr.                                                             Elisabeth A. Shumaker
        Clerk                                                                       Chief Deputy Clerk

                                              August 16, 1999


        TO:      ALL RECIPIENTS OF THE ORDER AND JUDGMENT

        RE:      98-3246, United States v. Battle
                 Filed on August 6, 1999

               The order and judgment filed in this matter omitted the name of the authoring judge.
        Senior Circuit Judge Robert H. McWilliams entered the decision for the court.

                 Please make the correction to your copy of the decision.

                                                          Sincerely,

                                                          Patrick Fisher, Clerk of Court


                                                          By:    Keith Nelson
                                                                 Deputy Clerk
                                                                          F I L E D
                                                                   United States Court of Appeals
                                                                           Tenth Circuit

                                                                           AUG 6 1999
                        UNITED STATES COURT OF APPEALS
                                                                      PATRICK FISHER
                                   TENTH CIRCUIT                               Clerk



 UNITED STATES OF AMERICA,

          Plaintiff-Appellee,
 v.                                                         No. 98-3246
                                                       (D.C. No. 97-40005-01)
 SHAWN BATTLE,                                           (District of Kansas)

          Defendant-Appellant.


                                ORDER AND JUDGMENT*


Before ANDERSON, Circuit Judge, LUCERO, Circuit Judge, and McWILLIAMS,
Senior Circuit Judge.


      In a one-count indictment filed on January 9, 1997 in the United States District

Court for the District of Kansas, Shawn Battle, aka “Black,” Terrence Canteen, aka

“Travis Brown,” and “Big Country,” James Culp, aka “Kane,” and Richardo Clark, aka

“Ricky,” were jointly charged with conspiring from December 8, 1991 until October 1,

1996 in the District of Kansas with each other, and with ten other persons who were

identified by name and with others whose names were unknown to the grand jury, to

distribute in excess of 50 grams of cocaine base, commonly known as crack cocaine, and


      *
         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
cocaine hydrochloride, commonly known as powder cocaine, in violation of 21 U.S.C. §

846, with reference to 21 U.S.C. § 841(a)(1). Canteen entered into a plea agreement with

the government and later testified as a government witness at the trial of Battle, Culp and

Clark. A jury convicted Battle and Culp of conspiracy, but acquitted Clark. Battle was

later sentenced to imprisonment for 360 months. He now appeals his conviction.1

       Without going into any detail at this time, it was the government’s theory of the

case that Battle, and others from the New York City area, decided to come to Kansas

where they engaged in a long-running and highly profitable drug operation wherein local

drug sellers and users were recruited and incorporated into an extensive drug distribution

operation wherein drugs flowed from New York City to Junction City and Manhattan,

Kansas.

       On appeal, Battle raises six issues: (1) the district court erred in refusing to strike

from the indictment the alias “Black;” (2) the district court erred in allowing testimony

relating to the number of telephone calls to residences and motor vehicles in Junction City

and Manhattan, Kansas; (3) the district court erred in admitting expert testimony

concerning a signature on a Western Union money transfer record; (4) the district court

erred in admitting testimony that a key taken from Battle in an inventory search occurring

at the time of his arrest “fit” locks on certain residences and a vehicle which Battle had



       1
        Culp also appealed his conviction and sentence. Our No. 98-3254, United States
v. Culp, decided this date, wherein we affirmed Culp’s conviction and sentence.

                                             -2-
access to and where drugs had been found; (5) the district court erred in admitting

evidence of “mere association” and “character evidence” regarding Battle; and (6) the

district court erred in denying Battle’s motion for judgment of acquittal made at the close

of evidence based on a fatal variance between the crime charged in the indictment and the

proof adduced at trial, i.e., the indictment charged one continuing conspiracy and the

proof thereof showed “multiple conspiracies.”

       As indicated, after a two-week trial, the jury convicted Battle and Culp of

conspiracy and acquitted Clark. We are only concerned with Battle in this appeal. The

government in its case-in-chief called a plethora of witnesses, including one co-

defendant, Terrence Canteen, five co-conspirators, numerous drug users and sellers, as

well as many law enforcement officers. At the conclusion of the government’s case,

counsel for Battle moved for a judgment of acquittal under Fed. R. Crim. P. 29. That

motion was denied. Though Battle did not, himself, testify, counsel did call one defense

witness, an investigator in the public defender’s office, who testified briefly about

Battle’s employment record in New York City. In closing argument, counsel’s basic

position was that the testimony of the government’s witnesses, particularly the testimony

of the co-conspirators, should not be believed, since it was “bought” by the government,

“not with money but with freedom.”

       On appeal, Battle does not contend that the verdict is not supported by the

evidence. Rather, counsel asserts, in the main, trial error by the district court in


                                             -3-
overruling defense objections to government evidence.

       As indicated, in the caption of the indictment and in the body of the indictment

Battle was identified as aka “Black.” The other three defendants were also identified both

in the caption and the body of the indictment by their respective true names and aliases

used. Prior to trial, counsel for Battle filed a motion to strike the name “Black” from both

the caption and the body of the indictment, claiming that the use thereof was “prejudicial”

and was not necessary since Battle denied that he had ever been known as “Black.” At a

hearing on that motion, the government argued that several of their witnesses would

testify that they knew Battle by his street name “Black.” The district court denied the

motion with the comment that it would appear that “the evidence may include reference to

the defendant’s alias . . . .” And the evidence did. As we read it, several government

witnesses testified that they knew Battle by his street name “Black.” And the fact that

one of Battle’s co-conspirators may have on occasion used the nickname “Black” is of no

particular moment. The important fact is that several government witnesses knew Battle

by his street name “Black.” In this general regard, the government’s evidence indicated

that Battle, and certain other defendants, were frequently referred to by their street names,

rather than by their true names, and, according to counsel, such indicated an effort by

Battle and the others to conceal their true identities. In any event, under these

circumstances, the district court did not abuse its discretion in refusing to strike the aka

“Black” from the caption and body of the indictment.


                                             -4-
       In support of the foregoing, see United States v. Clark, 541 F.2d 1016 (4th Cir.

1976), and United States v. Skolek, 474 F.2d 582 (10th Cir. 1973). See also United States

v. Lowe, 25 F.3d 1059 (1994 WL 237502)(10th Cir. 1994). In Clark, the Fourth Circuit

stated that a pretrial motion to strike an alias mentioned in the indictment should not be

granted if the government intends to introduce evidence that a defendant used a particular

alias in the commission of the crime charged. Id. at 1018. In Skolek, we held that use of

an alias in an indictment which was taken into the jury room was permissible where there

was testimony that a defendant had used the alias. Id. at 586. See also United States v.

Glass, 128 F.3d 1398, 1408 (10th Cir. 1997) where we stated that a defendant’s use of an

alias to conceal his true identity is relevant to show consciousness of guilt.

       We recognize that courts have held that only when proof of an alias is relevant to

identifying a defendant should a court allow its inclusion in the indictment and its

subsequent introduction at trial. See, e.g., United States v. Wilkerson, 456 F.2d 57, 59 (6th

Cir. 1972). Here, however, proof of the use of the alias “Black” helped identify Battle as

a participant in the conspiracy. In this general regard, counsel have not drawn our

attention to any reported case where a conviction has been overturned because of a

court’s failure to strike an alias from the indictment. In Wilkerson, the district court had,

in fact, stricken, on motion, an alias used in the indictment, but the United States Attorney

nonetheless in opening statements read the alias used in the indictment to the jury and

again referred to it in closing argument. The Sixth Circuit, however, declined to reverse


                                             -5-
the conviction, concluding that any error did not warrant reversal.

       Counsel’s next argument is that the district court erred in admitting testimony

concerning telephone calls to and from New York City telephone numbers and to and

from certain telephone numbers in the Junction City and Manhattan areas. The records

themselves were identified by representatives of New York and Kansas phone companies.

Using these records, Michael Life, a member of the Junction City police force, testified as

to the number of calls to and from New York and to and from Kansas. The purpose of

such testimony was to show the fact of communication between persons in New York and

those in Kansas, in other words, to show the New York connection with midwest Kansas.

That the content of no call was known is not significant. It was the fact of the calls, and

the number thereof, that, according to counsel, constitute circumstantial evidence

supporting the direct evidence of a conspiracy. As indicated, there was an abundance of

direct testimony from a co-defendant and several co-conspirators of a conspiracy and

Battle’s involvement therein, and the fact that there were numerous phone calls made

between the conspirators tended to corroborate the direct testimony. We find no error in

the district court’s handling of the matter. The admission, or exclusion, of proffered

evidence at trial is a matter within the sound discretion of the trial court, and its ruling

will not be overturned on appeal absent an abuse of that discretion. United States v.

Scarborough, 128 F.3d 1373, 1378 (l0th Cir. 1997). We find no such abuse of discretion.




                                              -6-
       Counsel next argues that the district court erred in admitting the testimony of

Dennis McPhail, a document examiner for the Kansas Bureau of Investigation. McPhail

related his educational record and testified that he had been employed by the Bureau for

23 years, the first 11 as a drug analyst, and the following 12 years as a document

examiner. His experience as a document examiner was thoroughly explored on voir dire,

direct and cross-examination. The district court then found that McPhail’s “specialized

knowledge” would assist the jurors in their determination of the case and that he was

qualified as an expert witness “by knowledge, skill, experience, training and education to

give such an opinion.” Whereupon, McPhail was shown a Western Union money transfer

wherein a Tyler Evans was the sender, and the person receiving the money transfer was

“Anthony Jenkins.” The signature “Anthony Jenkins” appeared on the transfer. McPhail

was then shown exemplars of Battle’s signature given by him at the time of his booking

shortly after his arrest. McPhail testified that he had previously examined both the

questioned signature and the exemplar of Battle’s signature given at the time of booking,

and then testified, in effect, that, in his opinion, Battle had affixed the signature of

“Anthony Jenkins” on the Western Union transfer.

       On appeal, counsel asserts that the admission of McPhail’s testimony violates

Daubert v. Merrell Dow Pharm., Inc., 509 U.S. 579 (1993). We are not persuaded. In

Daubert the Supreme Court held that the “general acceptance” test of Frye v. United

States, 293 F. 1013 (D.C. Cir. 1923) had been superseded by the Federal Rules of


                                              -7-
Evidence, especially Rule 702. That rule reads as follows:

              Rule 702. Testimony by Experts
                      If scientific, technical, or other specialized knowledge
              will assist the trier of fact to understand the evidence or to
              determine a fact in issue, a witness qualified as an expert by
              knowledge, skill, experience, training, or education, may
              testify thereto in the form of an opinion or otherwise.

       It is true that in Daubert the court was concerned with so-called “scientific”

testimony. However, in Kumho Tire Co. Ltd. v. Carmichael,           U.S.     , 119 S.Ct.

1167 (1999), the Supreme Court held that Daubert applied not only to “scientific”

testimony, but to all expert testimony. 119 S.Ct. at 1174. In our view, the district court’s

finding that McPhail’s proffered testimony was admissible under the provisions of Rule

702 did not constitute any abuse of discretion and should not be disturbed by us on

appeal. See Wilson v. Merrell Dow Pharm., Inc., 160 F.3d 625, 629 (10th Cir. 1998). Our

study of the record on appeal convinces us that McPhail’s proffered testimony met the

reliability and relevancy test of Daubert. Be that as it may, in any event any error in this

regard is, in our view, harmless error when the evidence is considered as a whole. There

was much eyewitness testimony from co-conspirators, users and sellers, which testimony

the jury obviously gave credence to, showing that Battle was not only a party to a

conspiracy but one of the leaders thereof. The Western Union money transfer was merely

one bit of circumstantial evidence tending to corroborate the testimony of, as we said, a

plethora of witnesses linking Battle to the conspiracy.

       Counsel’s fourth ground for reversal is that Battle’s Fourth Amendment right to be

                                            -8-
free from unreasonable searches and seizures was violated. Battle was arrested at the

Kansas City International Airport near Kansas City, Missouri in early October, 1996. He

apparently was incarcerated in a jail in Missouri for a brief time and then transferred to

Geary County Detention Center in Junction City, Kansas on or about October 5, 1996.

When he was booked into the Detention Center an inventory search was apparently made,

and his personal items, including some keys, were taken from him. About a week later

Detective Michael Life went to the Detention Center and obtained the keys taken from

Battle in the inventory search. Life tried these keys in the locks of certain residences and

motor vehicles, which, at that time, were suspected of having been used in the drug

conspiracy, some of which, as we understand it, had been searched pursuant to warrant.

Life found that the keys “fit” the locks on certain of these residences and vehicles, and

was prepared to so testify. However, prior to trial, counsel for Battle filed a motion to

suppress Life’s testimony that the keys taken from Battle at the time of the inventory

search “fit” the locks in question on the grounds of a Fourth Amendment violation. The

district court, after hearing, denied the motion to suppress, and Life testified along the

lines indicated at trial. As indicated on appeal, counsel argues that Battle’s Fourth

Amendment rights were violated and that his conviction should be reversed for that

reason. We disagree.

       As we understand it, counsel concedes that the initial taking of Battle’s personal

items, i.e., clothing, airplane ticket and the keys, at the time he was incarcerated was an


                                             -9-
inventory search and non-violative of the Fourth Amendment. See Illinois v. Lafayette,

462 U.S. 640, 646 (1983). His argument is that it was unreasonable and violative of the

Fourth Amendment for Detective Life about a week later to take the keys from a police

custodian and use them to run a test, so to speak, to see if they fit locks of places

suspected of harboring contraband. In other words, according to counsel, we are not here

involved with a search incidental to a lawful arrest, but rather we are here concerned with

a “search incidental to incarceration,” incarceration, which, incidentally, was a “lawful

incarceration.” It is apparently counsel’s belief that, though the authorities could have

used the keys, as Detective Life later did, at the time of the inventory search, they could

not lawfully do so a week later. We do not agree with this reasoning, and under the facts

above outlined, we hold that there was no violation of Battle’s Fourth Amendment rights.

In support of our resolution, see United States v. Edwards, 415 U.S. 800, 807-08 (1974);

United States v. Thompson, 837 F.2d 673, 674 (5th Cir.), cert. denied, 488 U.S. 832

(1988); and United States v. McVeigh, 940 F.Supp. 1541, 1556 (D. Colo. 1996).

       Counsel’s fifth ground for reversal is that the district court erred in admitting

“mere association and character evidence.” Our study of the record is that such is not the

case. In this regard, there certainly was no abuse of discretion by the district court. See

United States v. McVeigh, 153 F.3d 1166, 1189 (10th Cir. 1998). It should be remembered

that this was a joint trial of three defendants, Battle, Culp and Clark. And an essential

element of the crime charged was that the three conspired with each other, and others, to


                                             - 10 -
violate 21 U.S.C. § 846 and 28 U.S.C. § 841.

       Counsel’s final ground for reversal is that the district court erred in denying

Battle’s motion for a judgment of acquittal based on a fatal variance between the crime

charged in the indictment and the evidence adduced at trial, which affected “substantial

rights” of Battle. It is argued that the indictment charged one conspiracy and that the

evidence, if believed, showed four or five conspiracies. We are not persuaded. Whether

a single or multiple conspiracies exist is a fact question for the jury, and the jury’s

determination is viewed in a light most favorable to the government. United States v.

Powell, 982 F.2d 1422, 1431 (10th Cir. 1992), cert. denied, 508 U.S. 917 (1993). We

agree with the government that, when the evidence is viewed in a light most favorable to

the government, it shows that a New York group, which included Battle, decided to go to

Kansas where they engaged in a long-running, highly profitable and extensive conspiracy

that recruited local drug sellers and users in an underground operation that had as its goal

the sale of drugs for profit.

       Judgment affirmed.

                                            ENTERED FOR THE COURT,

                                            Robert H. McWilliams
                                            Senior Circuit Judge




                                             - 11 -
