               NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                          File Name: 07a0525n.06
                            Filed: July 25, 2007

                                           No. 05-6765

                         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
PHILLIP STAFFORD,                                )   WESTERN DISTRICT OF TENNESSEE
                                                 )
              Defendant - Appellant.             )


       Before: CLAY and SUTTON, Circuit Judges; and GREER, District Judge.*


       SUTTON, Circuit Judge.         Phillip Stafford challenges several convictions related to

methamphetamine production and distribution as well as weapons possession. We affirm.


                                                I.


       In November 2004, the Memphis Police Department learned that Phillip Stafford might be

selling methamphetamine from a warehouse he leased. Based on this tip, the police asked an

informant to make a controlled purchase of methamphetamine from Stafford. After the informant

purchased methamphetamine from Stafford, the police obtained a search warrant to search his

warehouse.



       *
        The Honorable J. Ronnie Greer, United States District Judge for the Eastern District of
Tennessee, sitting by designation.
No. 05-6765
United States v. Stafford

       Four officers executed the search warrant. When no one answered their knock on the door,

they entered the warehouse and noticed an “extremely strong chemical smell,” the “most prominent”

of which was ammonia, a chemical used in the production of methamphetamine. JA 130–31. Once

inside the 5500-square-foot warehouse, the officers discovered a large methamphetamine production

operation. The facility housed “two different types of clandestine manufacturing methods.” JA 65.

The first one produced anhydrous ammonia; the second combined the ammonia with other precursor

chemicals (lithium and pseudoephedrine) to produce methamphetamine. Garbage bags located

outside the warehouse contained “waste from a methamphetamine lab” along with “a bail bond letter

addressed to Phillip Stafford.” JA 131–32.


       The officers also found a Winnebago camper parked inside the warehouse. It contained a

loaded .357 pistol, a digital scale and a smoking pipe sitting atop a table behind the front passenger

seat. A bench seat “[w]ithin two feet” of the table held a “large quantity of methamphetamine,” and

a shelf directly above the table contained $12,000 in cash. JA 188–89. Two additional guns rested

on the bench seat. One of them, a loaded .38 revolver, sat on top of a black notebook. Inside the

black notebook police found “[a] large baggy of methamphetamine,” Stafford’s tax returns and a

plastic container storing small plastic baggies of the type used to separate methamphetamine into

“grams, ounces, half ounces, and so forth.” JA 190–92. The police found another weapon—a

Remington 870 shotgun—in a storage compartment and $4,000 in cash stuffed underneath a

mattress. A small shelf outside the camper held rounds of ammunition, a bail bond letter addressed




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United States v. Stafford

to Stafford, two digital scales, a methamphetamine smoking pipe, packs of pseudoephedrine and

lithium batteries.


       Four days after the search, an officer pulled over a pickup truck driven by Stafford. The

officer noticed a bag of ammonium nitrate and a can of paint thinner (products also used in

manufacturing methamphetamine) in the back of the truck. After arresting Stafford, the officer

searched the truck and found a pill bottle containing methamphetamine, a glass smoking pipe,

receipts listing the purchase of items used in manufacturing methamphetamine, empty

pseudoephedrine boxes and blister packs, a butane torch, methamphetamine packaging materials and

the search warrant that the officers had left at the warehouse.


       A federal grand jury returned a nine-count indictment against Stafford. The indictment

included three counts related to evidence discovered during the arrest—possession with attempt to

distribute methamphetamine, 21 U.S.C. § 841(a)(1), possession of items used to manufacture

methamphetamine, id. § 843(a)(6), and possession of pseudoephedrine with intent to manufacture

methamphetamine, id. § 841(c)—and six counts related to evidence discovered during the search

of the warehouse. A jury found Stafford guilty of the first three counts, and the district court

declared a mistrial as to the remaining counts.


       The grand jury handed down a superseding indictment. It recharged Stafford with crimes

based on evidence discovered during the warehouse search, including possession with intent to

distribute methamphetamine, possession of items used to manufacture methamphetamine, possession


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United States v. Stafford

of pseudoephedrine with intent to manufacture methamphetamine, attempting to manufacture

methamphetamine, 21 U.S.C. § 846, possession of a firearm in furtherance of distributing

methamphetamine, 18 U.S.C. § 924(c), and possession of a firearm as a convicted felon, id. § 922(g).

A jury convicted Stafford on all of the charges, and the district court sentenced him to a 150-month

prison term—based on both sets of convictions.


                                                 II.


       Stafford first challenges the sufficiency of the evidence to convict him of possessing a

firearm in furtherance of a drug-trafficking crime. Federal law prohibits the possession of a firearm

“in furtherance” of a “drug trafficking crime.” 18 U.S.C. § 924(c). To sustain a conviction, the

weapon must “promote or facilitate” the underlying crime, requiring “a specific nexus between the

gun and the crime charged.” United States v. Mackey, 265 F.3d 457, 461–62 (6th Cir. 2001).

Several factors bear on the inquiry: Was the gun strategically located to allow quick and easy use?

Was it loaded? What type of gun was it? Did the defendant possess the gun legally? What type of

drug activity did it allegedly further? And what were the circumstances surrounding the discovery

of the gun? Id.


       The answers to these questions all support the jury verdict and all show “a specific nexus

between the gun and the crime charged.” The three guns—an 870 Remington pump shotgun, a .357

Smith and Wesson magnum pistol and a .38 caliber Smith and Wesson revolver—do not suggest an

innocent purpose, such as hunting or antique collecting. Neither does the fact that Stafford possessed


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United States v. Stafford

the three guns illegally, as the jury found and as he does not contest. And neither does the fact that

two of the guns—the revolver and the pistol—were loaded. Uncontradicted expert testimony

showed that methamphetamine manufacturers often protect their “stash” with guns. JA 75–76.

Perhaps most importantly, the police found the loaded pistol and revolver where Stafford could

readily use them to protect the drugs—the pistol was within two feet of a “large quantity of

methamphetamine” and within easy reach of $12,000, JA 188–89, and the revolver sat atop a

notebook that contained a “large baggy” full of the drug, JA 191. See United States v. Couch, 367

F.3d 557, 561 (6th Cir. 2004) (“[A] jury can reasonably infer that firearms which are strategically

located so as to provide defense or deterrence in furtherance of the drug trafficking are used in

furtherance of a drug trafficking crime.”) (internal quotation marks omitted). The shotgun, while

located a bit farther away in a storage compartment, was nevertheless “easily accessible.” United

States v. Swafford, 385 F.3d 1026, 1029 (6th Cir. 2004) (affirming conviction when the police found

the defendant with a gun in a bedroom located ten to fifteen feet from the garage where he stored

drugs).


          United States v. Iiland, 254 F.3d 1264 (10th Cir. 2001), does not alter this conclusion. That

“drug dealers in general often carry guns for protection,” the court held, “is insufficient to show

possession in furtherance of drug activity in [a] particular case,” id. at 1274. No doubt, such

evidence by itself may not suffice to satisfy the “in furtherance” requirement, but that does not mean

this type of evidence has no bearing—along with other factors—on the inquiry. See Swafford, 385

F.3d at 1029; Couch, 367 F.3d at 561. Unlike Iiland, this is not a case in which the government’s


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United States v. Stafford

theory of conviction turned solely on the general observation that drug dealers generally carry guns

for protection—or in which, in the words of Iiland, the facts show “only that a drug dealer possessed

a gun.” 254 F.3d at 1274 (noting, for example, that “[t]here was no evidence that the gun and drugs

were ever kept in the same place”).


        At oral argument, Stafford’s counsel also noted that the defendant was not at the scene when

the weapons and drug paraphernalia were found by the police. The case law, however, draws no

such distinction, and indeed the concept of constructive possession precludes drawing any such

distinction.


        Stafford also raises two evidentiary challenges, both of them arising from evidence admitted

during the second trial. The first relates to the admission of “other acts” evidence under Evidence

Rules 404(b) and 403—that during an arrest seven months before the warehouse search a police

officer found Stafford with “eight Lithium batteries, four cans of Coleman fuel, some tubing,

aquarium tubing, and two bags of dry ice.” JA 212. The district court did not abuse its discretion

in admitting this evidence. See United States v. Copeland, 321 F.3d 582, 596 (6th Cir. 2003)

(applying abuse-of-discretion standard to Rule 404(b) decision).


        Evidence Rule 404(b) says that evidence of a defendant’s “other crimes, wrongs, or acts” may

not be admitted for one purpose (“to prove the character of a person in order to show action in

conformity therewith”) but may be admitted for “other purposes” (“proof of motive, opportunity,

intent, preparation, plan, knowledge, identity, or absence of mistake or accident”). See United States


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United States v. Stafford

v. Blankenship, 775 F.2d 735, 739 (6th Cir. 1985) (Rule 404(b) “is actually a rule of inclusion rather

than exclusion, since only one use is forbidden and several permissible uses of such evidence are

identified. The list of permissible uses is not exclusive.”).


       In assessing the admission of other-acts evidence under Rules 404(b) and 403, we ask three

questions: (1) is there sufficient evidence that the other act occurred? (2) is the evidence probative

of a material issue other than character? and (3) is the probative value of the evidence outweighed

by the unfair prejudice it may cause? Copeland, 321 F.3d at 596. First, no one questions whether

Stafford possessed methamphetamine precursors when he was arrested, so the issue turns on the

other two steps.


       Second, the district court admitted the evidence for an appropriate purpose—to “prove intent

or knowledge on the part of the defendant.” JA 197; see Fed. R. Evid. 404(b) (listing proof of

“intent” and “knowledge” as legitimate uses of other-acts evidence). That purpose also was material

to the trial. One of the counts—possession of methamphetamine-manufacturing materials—

required the government to show Stafford’s state of mind with respect to his possession of otherwise-

lawful items, namely that he possessed them “knowing, intending, or having reasonable cause to

believe that [they would] be used to manufacture” methamphetamine. 21 U.S.C. § 843(a)(6); see

Johnson, 27 F.3d at 1192. Stafford never admitted knowing that the items found in his warehouse

would be used to manufacture methamphetamine, and his witnesses sought to cast doubt upon his

responsibility for the warehouse’s use as a methamphetamine production facility. See JA 230–31

(Stafford’s stepson testifying that he had never seen drugs at the warehouse, that the warehouse did

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United States v. Stafford

not emit a chemical odor and that Stafford had stayed with him in the days leading up to the search);

JA 238–39 (Stafford’s friend testifying that others, including the informant, had regular access to the

warehouse).


       That Stafford possessed methamphetamine precursors seven months before the search tends

to show that he knew that the same types of items found in his warehouse—many of them

purchasable at a run-of-the-mill, all-purpose grocery store—would be used to manufacture

methamphetamine. The prior event was sufficiently contemporaneous to be relevant, see United

States v. Jones, 403 F.3d 817, 820–21 (6th Cir. 2005) (affirming the district court’s admission of

testimony in a § 843(a)(6) methamphetamine case that the defendant three years before the alleged

crime had instructed an acquaintance how to manufacture methamphetamine), and Stafford’s prior

possession of methamphetamine precursors bears on his intent regarding the similar items found in

his warehouse, see United States v. Miller, No. 05-5187, 2007 WL 930425, at *11 (6th Cir. March

28, 2007) (affirming district court’s ruling “that the Government could use Miller’s guilty plea in

[a prior] methamphetamine-possession case to demonstrate his intent to produce methamphetamine

in his backyard”); United States v. Argo, 23 F. App’x 302, 307–08 (6th Cir. Oct. 4, 2001) (affirming

the “district court[‘s] conclu[sion] that . . . testimony concerning Argo’s prior manufacture of

methamphetamine was admissible for the purpose of showing Argo’s intent to manufacture

methamphetamine”); United States v. Benbrook, 40 F.3d 88, 92 (5th Cir. 1994) (“Past drug activities

involving methamphetamine logically are relevant to what Benbrook intended to do with the

methamphetamine precursor chemicals found in his home.”).


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No. 05-6765
United States v. Stafford

        Third, consistent with Evidence Rule 403, the district court permissibly determined that the

“probative value” of the evidence was not “substantially outweighed by the danger of unfair

prejudice” arising from it. Within “a few minutes” of admitting the evidence, the judge told the jury

that it should be considered “only as it relates to the government’s claim on the defendant’s intent

or knowledge, and [the jury] must not consider it for any other purpose.” JA 225. The government

also declined to offer other evidence related to Stafford’s arrest that posed a greater risk of unfair

prejudice—that items in Stafford’s possession during the arrest contained methamphetamine residue

and that the arrest led to a state-court conviction for possessing materials with intent to manufacture

methamphetamine. On this record, the district court did not abuse its discretion in admitting the

evidence.


                                                   C.


        Stafford also challenges under Rule 404(b) the admission of evidence about the

circumstances of his arrest, including his possession of methamphetamine precursors. Reasoning

that the evidence “would complete . . . th[e] story, th[e] series of events that occurred,” the court

concluded that it did not violate Rule 404(b). JA 42.


        The district court did not abuse its discretion in admitting the evidence. While, as shown,

the rule prohibits the use of “[e]vidence of other . . . acts . . . to prove the character of a person in

order to show action in conformity therewith,” Fed. R. Evid. 404(b), it does not bar “background”

or “res gestae” evidence. See United States v. Hardy, 228 F.3d 745, 748 (6th Cir. 2000) (explaining


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No. 05-6765
United States v. Stafford

that such evidence “does not implicate Rule 404(b)”). “Proper background” information “has

a . . . temporal . . . connection with the charged offense” and often “is directly probative of the

charged offense, arises from the same events as the charged offense, . . . or completes the story of

the charged offense.” Id.; see also United States v. Price, 329 F.3d 903, 906 (6th Cir. 2003) (“Rule

404(b), however, does not apply to evidence that itself is probative of the crime charged, without

regard to whether any ‘other act’ occurred.”).


       In this case, Stafford remained at large after the search of the warehouse. Informing the jury

about the circumstances surrounding Stafford’s arrest four days later tied up this loose end and

provided a natural conclusion to the story. The evidence also was “directly probative of the charged

offense,” as Stafford’s possession of the same type of items as those items found in the warehouse

had a bearing on the charges against him. At trial, Stafford presented testimony from his stepson,

David Sprague, and his friend William Miller, both of whom challenged the connection between

Stafford and the warehouse’s illicit contents. They testified that they had not seen drugs or guns at

the warehouse; that Stafford allowed others (including the informant in this case) regular access to

the warehouse; that no odors emanated from the warehouse; and that Stafford had stayed with

Sprague for several days prior to and including the day of the search. In the face of this testimony

from defendant’s witnesses, the evidence discovered during Stafford’s arrest strengthened the

connection between Stafford and the items found at the warehouse. Stafford’s possession of the

warrant left behind by the police suggested that he had been to the warehouse since the search and

that he knew that the search had taken place.             Several of the receipts for purchases of


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No. 05-6765
United States v. Stafford

methamphetamine precursor chemicals found in his truck predated the search, suggesting he

possessed precursors during the time specified by the indictment and supplying additional proof that

the methamphetamine production facility was his. The jury also reasonably could infer that Stafford

was traveling with methamphetamine precursors because he knew his production facility had been

compromised.


       Stafford briefly argues that the district court’s jury instruction regarding this

evidence—which concluded that “the defendant is here on trial only for those charges in the

indictment and not for any other acts,” JA 120—was confusing and that the district court should have

used the Sixth Circuit’s pattern instruction for “other acts” evidence. See Br. at 41. Stafford,

however, did not object to this instruction at trial. See JA 119–20; see also JA 92 (Stafford

responding to the district court’s proposed outline for the jury instruction and suggestion that he

could “write something else out” by saying “[n]o[,] I think that’s fine”). And he has not shown that

plain error (or anything approaching it) arose from this instruction. See Fed R. Crim. P. 52(b).


                                                III.


       For these reasons, we affirm.




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