                                                                                                                           Opinions of the United
2006 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


8-14-2006

USA v. Price
Precedential or Non-Precedential: Precedential

Docket No. 05-2968




Follow this and additional works at: http://digitalcommons.law.villanova.edu/thirdcircuit_2006

Recommended Citation
"USA v. Price" (2006). 2006 Decisions. Paper 526.
http://digitalcommons.law.villanova.edu/thirdcircuit_2006/526


This decision is brought to you for free and open access by the Opinions of the United States Court of Appeals for the Third Circuit at Villanova
University School of Law Digital Repository. It has been accepted for inclusion in 2006 Decisions by an authorized administrator of Villanova
University School of Law Digital Repository. For more information, please contact Benjamin.Carlson@law.villanova.edu.
                                            PRECEDENTIAL

          UNITED STATES COURT OF APPEALS
               FOR THE THIRD CIRCUIT


                       No. 05-2968


             UNITED STATES OF AMERICA

                              v.

                     KEENAN PRICE,

                             Appellant


      On Appeal from the United States District Court
          for the Eastern District of Pennsylvania
                   (D.C. No. 03-cr-00147)
      District Judge: Honorable William H. Yohn, Jr.


                  Argued June 15, 2006
            Before: FISHER, CHAGARES and
               REAVLEY,* Circuit Judges.

                   (Filed: June 30, 2006)


      *
        The Honorable Thomas M. Reavley, United States
Circuit Judge for the Fifth Circuit, sitting by designation.
Paul J. Hetznecker (Argued)
1420 Walnut Street, Suite 911
Philadelphia, PA 19102
       Attorney for Appellant

Joseph F. Minni (Argued)
Office of United States Attorney
615 Walnut Street, Suite 1250
Philadelphia, PA 19106
       Attorney for Appellee



                 OPINION OF THE COURT


FISHER, Circuit Judge.

       Keenan Price appeals from convictions on drug and gun
possession charges.1 Price raises three issues: first, that the
District Court improperly allowed two police officers to present
hearsay testimony about the contents of the radio report to
which they responded; second, that the District Court

       1
        The statutes of conviction are 21 U.S.C. §§ 841(a)(1),
(b)(1)(A) (crack); 21 U.S.C. §§ 841 (a)(1), (b)(1)(C) (cocaine);
18 U.S.C. § 922(c) (gun possession in furtherance); 18 U.S.C.
§ 922 (g) (gun possession by convicted felon). This appeal
began as a postconviction petition under 28 U.S.C § 2255, but
the District Court resentenced Price nunc pro tunc to allow him
to convert his petition to a direct appeal.

                                2
improperly allowed the government’s expert witness to testify
about Price’s mental state; and third, that the District Court
improperly instructed the jury on the meaning of “in
furtherance” in 18 U.S.C. § 922(c). We can discern no
impropriety in the District Court’s rulings, and will affirm on all
three issues.

                                I.

        Price was arrested along with two other men while sitting
in a parked car in a parking lot in Philadelphia. Drugs and drug
paraphernalia were found in the car, and when the car was
subsequently searched, pursuant to a warrant, drugs and a gun
were found in the trunk. Philadelphia police officer Frank
Bonett, who had been observing the parking lot while
performing drug surveillance, testified that he had seen Price
open the trunk, take a gun out of his pants, and place it in the
trunk.

        There were several officers in the vicinity of the parking
lot that night. Relevant to this case were Bonett, the
surveillance officer, who was hiding in and around other cars in
the lot, and two backup officers, Sergeant Anthony Chiarolanza
and Officer Thomas Lacorte, who were waiting nearby in an
unmarked car. Chiarolanza and Lacorte were part of the
“backup” team, whose job was to move in when called, and
support any eventual arrest. Midway through the surveillance
operation one of the alleged drug dealers apparently spotted
Chiarolanza and Lacorte and identified them as police. The
alleged dealer then alerted Price to the presence of police. At
that point, according to Bonett’s testimony, Price got into the car

                                3
and moved it to another area of the parking lot, then reached into
his pants, took out a gun, opened the trunk, put the gun inside,
and sat down again in the driver’s seat.

        When Bonett saw that Price had a gun, he reported this
fact on the radio, at which point Chiarolanza and Lacorte moved
in and approached the car, following what they testified was the
standard police protocol, in surveillance operations, of arresting
a suspect immediately once a gun is observed, rather than
continuing to perform surveillance. Price and the other two men
were removed from the car and searched. They had nothing
incriminating on their persons, but vials of crack were found in
the car, clearly prepared for sale, including some in a bag under
the driver’s seat, where Price had been sitting, and under which
he had been observed reaching by Chiarolanza and Lacorte as
they approached the car.

        At trial, Bonett testified as to what he’d seen while
performing surveillance. He stated that he observed Price
engage in several transactions with individuals who approached
the car, and that after being warned of the police presence, Price
had removed the gun from his pants and placed it in the trunk.

        Chiarolanza testifed after Bonett. The government
elicited from Chiarolanza a hearsay account of those latter
details as Bonett had reported them on the radio: that Price had
taken a gun from his pants and placed it in the trunk of the car.
The defense objected on hearsay grounds, and the District Court
allowed the testimony as “background” to explain the context of
Chiarolanza’s actions, instructing the jury that the testimony
about the radio call was to be used solely to explain why

                                4
Chiarolanza had approached the car, and not for the truth of its
content, viz., that Price in fact had possession of the gun.
Officer Lacorte testified after Chiarolanza, and the government
elicited from him similar testimony. Between them, the two
officers used the term “gun” nine times.

        Price appeals, charging that the government used the
hearsay testimony of the other two officers to bolster Bonett’s
testimony. Price’s defense was that none of the contraband
found in the trunk was his, and his trial strategy was to attack
the credibility of Bonett’s testimony, and to emphasize the lack
of corroborating eyewitnesses or physical evidence to confirm
that Price had been in possession of the gun. He argues that by
allowing Chiarolanza and Lacorte to relate the contents of the
radio call to which they responded, the District Court
contravened our teaching in United States v. Sallins, 993 F.2d
344 (3d Cir. 1993), about how the rule against hearsay should be
applied in such situations.

        The government also called an expert witness to testify
about the common behaviors of drug sellers as opposed to drug
buyers. Drug buyers, the witness testified, almost never bring
a gun to the transaction. Drug sellers, on the other hand, almost
always have a gun at hand or readily available. Price contends
that this testimony constituted impermissible speculation as to
his mental state.

      Finally, the District Court instructed the jury on the
meaning of “in furtherance” in § 922(c). Price challenges the
adequacy of that instruction.



                               5
       We consider Price’s contentions in turn.

                                II.
                          A. Hearsay
                    1. Standard of Review

        At the threshold, we ask, first, whether we are reviewing
a legal determination or a discretionary application of the rules
of evidence. We ask, second, whether Price has sufficiently
preserved this issue for review.

       Whether a statement is hearsay is a legal question subject
to plenary review. Sallins, 993 F.2d at 334. If the district court
correctly classifies a statement as hearsay, its application of the
relevant hearsay exceptions is subject to review for abuse of
discretion. United States v. Tyler, 281 F.3d 84, 98 (3d Cir.
2002).

       If the government had sought to introduce the statements
under one of the hearsay exceptions of Rule 803, then our
review would be for abuse of discretion. But the government’s
grounds for introduction were not that the testimony fit one of
the exceptions, but rather that the testimony was not hearsay,
because it was offered not for its truth but rather as background
to explain the context of the responding officers’ actions.
Because the government did not invoke, and the District Court
did not apply, one of the established hearsay exceptions, the
issue for us is whether the statements were hearsay. Price
argues that the statements were hearsay, insofar as they actually
served as substantive corroboration of Bonett’s eyewitness

                                6
testimony.    If they served the substantive purpose of
corroborating Bonett’s testimony, they were hearsay; if they
served only to provide background information, they were not
hearsay. Whether the challenged statements are hearsay is a
legal question, and our review is plenary.

       The second threshold question is whether Price preserved
this objection for our review. At trial, defense counsel objected
only once on hearsay grounds, during Chiarolanza’s testimony.
The District Court ruled, on that objection, that Chiarolanza’s
account of Bonett’s radio report could come in as background,
to explain Chiarolanza’s presence on the scene. That portion of
the transcript is excerpted below. The hearsay objection was
raised after Chiarolanza had made four references to Price’s
having had a gun, and the prosecution had made one such
reference. Following the District Court’s cautionary instruction,
Chiarolanza referred to the gun twice more. Lacorte, in his
testimony, referred to the gun three times. The government
contends that because Lacorte’s references to the gun came after
the District Court’s instruction, we should review those
references (and presumably, on the same logic the latter two of
Chiarolanza’s references) for plain error.

       We do not agree; our plain error jurisprudence is not so
parsimonious. We apply plain error review when an issue was
not brought to the attention of the district court. See, e.g.,
Collins v. Alco Parking, 448 F.3d 652 (3d Cir. 2006) (Becker,
J.). That certainly was not the case here. The ground of the
defense’s objection was clear: police officers other than Bonett
should not be permitted to relate what they heard Bonett say on
the radio. The government argued that such testimony was

                               7
admissible for the purpose of explaining the officers’ actions.
The District Court agreed. No reasonable attorney would doubt
that the ruling covered Lacorte as well as Chiarolanza. Lacorte
testified immediately after Chiarolanza, and their testimony was
materially identical: each said that the two of them heard Bonett
report that Price had a gun, and thereupon approached the car
and arrested Price. The purpose of requiring contemporaneous
objection at trial for full appellate review is to ensure that the
trial court has an opportunity to consider and rule on disputed
questions of law. When an issue has been raised, and a ruling
made, that purpose is served. We do not suggest, to be sure, that
a single objection to one statement by one witness, preserves an
issue as to all statements by all witnesses. But we think it clear
enough on this record that counsel raised the issue and preserved
it for appeal. We therefore proceed to the merits of Price’s
claim.

                           2. Merits

       Chiarolanza testifed as follows:

              Q: At that time, what did you decide to
       do?

              A: Officer Bonnett was relaying
       information via our hand-held radios and he stated
       that he observed the defendant exit the white
       Pontiac, go to the rear of the Pontiac, and remove
       a handgun from his waistband area.




                                8
       Q: And this was once the defendant was
already Parking Lot 2?

       A: That’s correct.

        Q: And what did he observe; he removed
the gun from his waistband area and did what
with it, sir?

       A: And placed it in the –

       [Defense Counsel] Your Honor, I’m
objecting at this time as it’s clearly hearsay.

       [The Court] It’s what?

       [Defense Counsel] It’s hearsay.

       [The Court] Yes, all right. Is there an
exception you want to apply to this?

       [Gov.] I’m trying to get to the actions this
gentleman took as a result of the information he
received.

       [The Court] All right, you may do so.

       Q: As a result of the information you
received –




                        9
               A: As a result of that information, I
       determined to terminate the investigation due to
       the officer and public safety. Any time there’s a
       handgun involved, my attention is solely focused
       on the confiscation and recovery of the
       handgun. At that time, I instructed the other
       takedown officers to come in, so that we can
       effectively make the arrest of the defendant and
       make the recovery of the handgun.

At this point, the District Court gave the following instruction:

               Members of the jury, the testimony about
       what Officer Bonnett said to him . . . is not
       admissible to prove the truth of what Officer
       Bonnett saw . . . [I]t is offered here solely to
       explain why this sergeant did what he did, so you
       use it only to – for the purpose of explaining why
       this sergeant did what he did after hearing that
       information, not for the truth of what happened.

The government then continued:

              Q: So you made the call at that point to do
       what, sir?

              A: To terminate the investigation and,
       again, go to Parking Lot number 2, which is
       where Officer Bonnett stated the vehicle was
       parked and the defendant was, to, again,


                               10
      effectively make the arrest and confiscate the
      handgun.

                ...

             Q: What did you do when you saw
      [Price’s] movement, sir?

             A: As I observed this, I was relaying that
      to Officer Lacorte to be careful, again because of
      the fact that there was a handgun involved.

      The relevant portion of Officer Lacorte’s testimony is as
follows:

             Q: How was it that you came into contact
      with the defendant, Keenan Price, that evening?

             A: On that evening we were doing a
      narcotics surveillance of the 200 block of East
      Ashmead Street. Through information I received
      from Police Officer Bonett, he was our
      surveillance officer, to go in and stop the
      defendant, that the defendant took a handgun
      out of his waistband and placed it in the trunk of
      a white Pontiac Sunbird.

                ...

                Q: Whose call was it to effectuate the
      arrest?

                              11
               A: Sergeant Chiarolanza. Once we see
       there’s a gun out there, Police Officer Bonett
       said to come in and Sergeant Chiarolanza told the
       other backup team members to come in, because
       we stopped the narcotics surveillance at that time
       and we just go in to get the individual with the
       gun.

       Price argues that because Bonett’s radio report was
admitted for the specific purpose of establishing background
context for the actions of Chiarolanza and Lacorte, its contents
should not have been admissible. Price does not dispute that the
District Court’s instruction clearly explained that Chiarolanza’s
and Lacorte’s recitations of the contents of Bonnett’s report
were not to be considered for their truth; rather, he contends that
under Sallins, no details about the contents of the call should
have been admitted even for the non-hearsay purpose of
establishing background context for the police response.

       Sallins is our fullest articulation of the application of the
rule against hearsay to statements by police officers about the
content of radio reports from other officers, and we recognized
there that “the use of out-of-court statements to show
background has been identified as an area of ‘widespread
abuse.’” 993 F.2d at 346.

       In Sallins, a gun possession case, an officer testified that
he and his partner responded to a radio dispatch stating that a
911 call had just reported that a black man in black clothes was
on a particular block carrying a gun. The officer testified that he
responded to the report by approaching the block, and there

                                12
observed a black man in black clothes, Sallins, walking along
the sidewalk. Upon seeing the police car, Sallins appeared to
throw something under a car and then ran away. One officer
gave chase and arrested Sallins, while the other looked under the
cars near where Sallins had been walking, and discovered a gun.
No physical evidence connected Sallins to the gun. “[T]he only
admissible evidence linking Sallins to the possession of a gun
was circumstantial evidence conveyed through the testimony of
Officers Santiago and Howard. Sallins vigorously challenged
the credibility of this testimony.” Sallins, 993 F.2d at 344.

        Sallins went to trial and successfully excluded evidence
of the radio call as inadmissible hearsay. That trial ended in a
mistrial. On retrial, the government persuaded the district court
to allow the responding officers to describe the contents of the
radio dispatch about the 911 call, as “background” explanation
of their actions. The evidence described above was introduced,
and Sallins was convicted.

        When the case reached us, we held that because the
testimony about the contents of the radio report was admitted
only for “background” – to explain why the officers responded
to the scene – and not as substantive evidence that Sallins had
possessed the gun, the incriminating details about the contents
of the radio report should not have been admitted. Our duty, we
stated, is to carefully scrutinize the actual evidentiary function
that ostensibly “background” evidence played at trial, to see
whether it really served any legitimate non-hearsay function. If
the legitimate non-hearsay probative value of particular
testimony is nil or de minimis, and the substantive (hearsay)
value is great, then it should be excluded. Such scrutiny is

                               13
necessary “if the hearsay rule is to have any force” in the
context of police radio reports. Id. at 347.

        The non-hearsay evidentiary function of testimony about
a police radio call is to provide a “background” explanation for
the testifying officer’s actions – that is, to explain what the
officer was doing at the scene. The jury need not, we explained
in Sallins, be led to believe that officers responding to a report
of criminal activity just “happened by.” Neither, however, may
the other officers relate the contents of that report if the same
contextual explanation could be adequately conveyed by the
statement that the officer was responding to “information
received.”

       In criminal cases, an arresting or investigating
       officer should not be put in the false position of
       seeming just to have happened upon the scene; he
       should be allowed some explanation of his
       presence and conduct. His testimony that he
       acted “upon information received,” or words to
       that effect, should be sufficient.

Sallins, 993 F.2d at 346.

        The government distinguishes Sallins by pointing out that
the disputed radio report in Sallins originated from an
anonymous 911 call, and no eyewitness testified as to Sallins’
possession of the gun. By contrast, the report at issue in the
instant case came from an eyewitness, Bonett, who testified at
trial. Thus, unlike in Sallins, the credibility of the eyewitness
account was directly tested.

                               14
       United States v. Lopez, 340 F.3d 169 (3d Cir. 2003), is
the only published case in which we have applied Sallins, and it
too involves an anonymous tip. In Lopez, the defendant, a
prisoner, was charged with heroin possession after heroin was
found concealed in his cell. No physical evidence or eyewitness
testimony connected Lopez to the drugs, and his defense was
that because the cells were open during the day, the drugs could
have been hidden in his cell by any of the more than one
hundred inmates on the cell block who had access to the cell.
To rebut this defense, two prison guards testified that they
searched Lopez’s cell because they had “received information
that Lopez was in possession of heroin,” id. at 175, either on his
person or in his cell. Lopez objected on hearsay grounds, and
the district court ruled that the testimony was admissible as
background explanation for the officers’ conduct.

        We disagreed. We applied the Sallins analysis and noted,
first, that the government could easily have established the
background for the search by presenting evidence that the
officers “acted upon information received.” Second, we noted
that Lopez’ defense centered on the lack of evidence that the
drugs were his, and the significant possibility that they were
someone else’s given the widespread access to the cell. The
lack of direct evidence connecting Lopez to the drugs, we said,
rendered suspect the government’s contention that the hearsay
evidence was not introduced in order to establish that
connection. And that contention was further undermined by the
fact that the government highlighted the hearsay statements in
its closing argument. The government’s “emphatic invocation,”
of the substantive details of the hearsay report, id. at 177,
strengthened the likelihood that the jury would think that “the

                               15
officers’ ‘information that Albert Lopez was in possession of
heroin’ was itself a datum in the construction of the
government’s substantive case.” Id.

         We reversed, emphasizing that, having found error in the
admission of the hearsay testimony, “[t]he dispositive question
. . . is not whether, in the absence of the inadmissible hearsay
evidence, the jury nevertheless could have convicted Lopez.
Rather, the question is whether the improperly admitted
statements may have helped to cement[] the government’s case.”
Id. (internal quotes omitted).

       While neither Sallins nor Lopez rests explicitly on the
anonymous nature of the initial source of the information
contained in the challenged report, we think that our underlying
concern in those cases was that the government was seeking to
indirectly present testimony from an unseen eyewitness who did
not himself appear.2

       2
        The instant case does not present any Confrontation
Clause issues because the challenged hearsay statements were
made by Bonett, who testified at trial and was available for
cross-examination. See Crawford v. Washington, 541 U.S. 36,
60 n.9 (2004) (“[W]hen the declarant appears for
cross-examination at trial, the Confrontation Clause places no
constraints at all on the use of his prior testimonial
statements.”). And it is not at all certain that Bonett’s
statements would be considered “testimonial” under Davis v.
Washington, 547 U.S. --- (2006), decided this Term. Insofar as
Bonett was contemporaneously reporting that a suspect had a
gun, his statement could well be considered “dealing with an

                               16
        The evidentiary danger posed by police officers’
testimony about the contents of reports received in connection
with the performance of their duties is greatest when the
government does not put on direct evidence of the substance of
the reports. That danger is least, by contrast, when the direct
source of the report personally testifies as to the precise facts
related in the report. The teaching of Sallins and Lopez is that
courts must not allow the government, in the guise of
“background explanation” testimony by police officers, to put
before the jury eyewitness accounts of bad acts by the defendant
that the jury would not otherwise have heard. When evidence
admitted as “background” includes such facts, we will exclude
or redact it to the extent that its actual evidentiary function is not
the (legitimate) one for which it was admitted. Sallins held that
we must scrutinize asserted background evidence to see whether
redaction or exclusion would be possible while preserving the
legitimate background evidentiary function. But Sallins did not
hold that it could never be the case that a background
explanation might, in order to serve its legitimate background
evidentiary function, require inclusion of prejudicial details
insofar as they constituted an integral part of the explanation for
the officer’s actions. Sallins, in sum, identifies a particular type
of hearsay error – admission of the contents of police reports
beyond the extent necessary for background explanation – and
provides a method – inquiry into whether a particular piece of
testimony is necessary for that background explanation – for
determining whether that error occurred.


emergency” rather than “investigating criminal conduct,” and
under Davis, only the latter is “testimonial” for Confrontation
Clause purposes.

                                 17
        The legitimate non-hearsay evidentiary purpose asserted
for the challenged testimony in this case is to explain why
Chiarolanza and Lacorte approached the car. The Sallins rule is
that if an officer can answer that question by saying he acted
“upon information received,” any further revelation of the
contents of the information received is impermissible hearsay.
The Sallins test thus contemplates an inquiry into the nature of
the proffered background explanation. Price argues that
Chiarolanza and Lacorte could adequately have explained their
actions by stating simply, “Bonett called for backup,” or “We
received information on the radio to which we responded.”
Price argues, in other words, that divulging that Bonett’s radio
report asserted that Price had a gun is not necessary to establish
the legitimate evidentiary purpose asserted by the government.

        We disagree. The government correctly points out that,
unlike the responding officers in Sallins, Chiarolanza and
Lacorte were not on a routine patrol when they received the
radio report; they were in the middle of a drug surveillance
operation. And by approaching the car, they terminated that
surveillance operation without having amassed any concrete
evidence of drug transactions: no alleged buyers, for example,
had been identified or apprehended, an investigatory failure of
which defense counsel made much in his closing argument. The
government contends that in such circumstances, an adequate
explanation for why the officers terminated the surveillance
operation requires disclosure of the report of a gun, because, as
the testimony in this case explained, unlike officers on routine
patrol, officers on surveillance operations do not generally
terminate the operations in response to radio dispatches.
Instead, they terminate the operations only when necessary to

                               18
respond to an imminent threat of violence, such as a report of a
suspect with a gun.

        We agree that this is a distinction with a difference.
Police officers are permitted under Sallins to explain the
background context for their arrival at a scene. When the
explanation cannot be effected without relating some contents
of the information received, Sallins does not prohibit admission
of such details.

       We think this case presents a scenario in which disclosure
that the responding officers received a report that the suspect
had a gun was necessary for an adequate explanation of the
officers’ arrival at the scene. The Sallins rule requires case-by-
case inquiry into the factual context of the police response, and
on these facts, we do not read Sallins as prohibiting the
government from introducing an explanation of why the officers
terminated the surveillance operation early.

        Furthermore, the District Court’s instruction made it clear
to the jury that the only witness testifying on the factual question
of whether Price in fact had possession of the gun was Bonett.
No reasonable juror could have been confused about the
instruction: the testimony given by Chiarolanza and Lacorte
about the contents of the radio report was not to be considered
for the purpose of determining whether that report was true. An
analogous instruction did not cure the error in Sallins or Lopez
because the disputed factual information would not otherwise
have reached the jury at all. But that is not the case here. The
jury had already heard Bonett’s testimony, and we have no
reason to doubt, on this record, that the jurors clearly understood

                                19
that the case turned on whether they believed Bonett. We do not
think that Chiarolanza’s and Lacorte’s testimony muddied the
deliberative waters.

         We emphasize that the legal issue in this case is whether
the challenged testimony was hearsay. The fact that an out-of-
court declarant also testified at trial does not have any bearing
on the question of whether another witness’s report of what the
out-of-court declarant told him is or is not hearsay. Price is
absolutely right that there is no general “But he testified!”
exception to the rule against hearsay. That proposition does not
help Price, however. As we have explained, Chiarolanza’s and
Lacorte’s testimony was not hearsay, because it was not offered
for its truth.

       The fact that Bonett testified at trial is relevant not to the
question of whether Chiarolanza’s and Lacorte’s background
testimony would have been hearsay if offered for its truth – it
would – but rather to the question of whether that background
testimony was really background. To apply Sallins, we must
ask what the actual evidentiary effect of Chiarolanza’s and
Lacorte’s testimony was: did it provide legitimate background
context, or did it in fact serve as illegitimate backdoor
eyewitness testimony? If Bonett had not testified, we would
have little difficulty in concluding that Chiarolanza’s and
Lacorte’s testimony was serving the latter, illegitimate,
evidentiary function. But given that Bonett did testify, there
was no introduction of otherwise-unavailable evidence, and
given the factual context of the termination of the surveillance
operation, the contents of Bonett’s report were necessary for an
adequate explanation of Chiarolanza’s and Lacorte’s actions.

                                 20
        Because the testimony about the radio report was
admitted for a legitimate non-hearsay purpose, and the contents
of the report were necessary to achieve that legitimate purpose,
the District Court did not err under Sallins.

                    B. Expert Testimony

       Price argues that Detective Andrew Callaghan, the
government’s expert witness on the professional customs of
drug dealers, impermissibly testified as to Price’s mental state
in violation of Rule 704 of the Rules of Evidence. That rule
prohibits experts in criminal cases from stating an opinion

       with respect to the mental state or condition of a
       defendant in a criminal case may state an opinion
       or inference as to whether the defendant did or did
       not have the mental state or condition constituting
       an element of the crime charged or of a defense
       thereto. Such ultimate issues are matters for the
       trier of fact alone.

Fed. R. Evid. 704(b). We review this claim for plain error
because Price did not object to Callaghan’s testimony at trial.
The claim, however, is without merit and would survive scrutiny
even under a more exacting standard.

       Callaghan said that in his opinion, based on statistics
gathered by the Philadelphia Police Department, drug dealers




                               21
are very likely to carry guns, and drug buyers almost never do.3

       3
        The challenged testimony, in full, is as follows:

               I’ve been involved in narcotics
       enforcement since about 1990 or ‘91, and I have
       never arrested a person who was just buying a
       substance, a user, with a firearm. I’ll concede that
       it does happen. In fact, I’ve been in squads where
       I’ve seen it happen. But I’ve made thousands of
       arrests, and I’ve never personally arrested a
       person who was just buying a controlled
       substance [for personal use] with a firearm.
               In fact, the statistics that I researched when
       I was in the intelligence unit was, in Philadelphia,
       in 2001 and 2002, one-sixth of one percent of
       drug users were arrested with a firearm in their
       possession.
               And based on my training and experience,
       it’s more common for a person selling controlled
       substances to possess a firearm to protect
       themselves and their operation from – generally
       they’re protecting themselves from being robbed
       on the streets.
               And another reason that a user – based on
       my debriefings during [my time as an]
       intelligence [officer], another reason why a user
       stays away from a firearm is, knowing and
       intentional possession of a controlled substance is
       a misdemeanor in Pennsylvania. That’s just a
       person who’s using. If that person was to carry a

                                22
It is settled law that an expert may testify about common
behavior patterns in a profession or subculture. See United
States v. Watson, 260 F.3d 301, 307 (3d Cir. 2001) (collecting
cases). Watson, to which Price appeals for support, favors the
government’s position, not his. The testimony we deemed
erroneously admitted in Watson was the expert’s opinion that
the defendant personally had intended to resell the drugs he
purchased. That opinion, we held, contravened Rule 704,
because the defendant’s mental state was an element of the
charged crime. Id. at 310.

       But Callaghan, as the above quotation reveals, said not a
word about Price’s mental state. His testimony was entirely
legitimate, as Watson by its plain terms explains:

       It is well established that experts may describe, in
       general and factual terms, the common practices
       of drug dealers. Expert testimony is admissible if
       it merely supports an inference or conclusion that
       the defendant did or did not have the requisite
       mens rea, so long as the expert does not draw the
       ultimate inference or conclusion for the jury and
       the ultimate inference or conclusion does not
       necessarily follow from the testimony. It is only
       as to the last step in the inferential process--a
       conclusion as to the defendant's mental state--that
       Rule 704(b) commands the expert to be silent.


       firearm, that changes that crime to a felony.

(App. 169.)

                               23
Watson, 260 F.3d at 309 (internal quotes, citations omitted).

       Callaghan’s testimony was no more and no less than a
description, “in general and factual terms, [of] the common
practices of drug dealers.”

           C. Definition of “Carry in Furtherance”

       Price argues, finally, that the jury instructions failed to
define the “in furtherance” component of § 922(c), and thus
allowed the jury to infer that mere possession of a gun while
committing a crime is sufficient for conviction. As with the
previous claim, we review this claim for plain error because
Price did not object to the instruction at trial.

       The District Court correctly instructed the jury that the
mere presence of a gun during commission of a crime is not
enough for conviction, and that instead, “[i]t is sufficient [for
conviction] if the proof established that the firearm furthered the
commission of the crime or was an integral part of the
underlying crime being committed.”4 By specifying that the gun
must have “furthered” or been “integral” to the underlying
crime, the instruction adequately conveyed that possession of a
gun while committing a crime is not, in itself, enough for
conviction under § 922(c).

       4
         We note as a purely logical matter that the phrase “it is
sufficient if” might be clearer if emended to “it is sufficient only
if” or replaced with the phrase “it is necessary for.” But we do
not hold the given instruction to have been error, and still less to
have been plain error.

                                24
                              III.

       For the foregoing reasons, we will affirm the judgment of
the District Court.




                              25
