                NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                           File Name: 10a0269n.06

                                            No. 07-6021                                   FILED
                                                                                      Apr 30, 2010
                           UNITED STATES COURT OF APPEALS                       LEONARD GREEN, Clerk
                                FOR THE SIXTH CIRCUIT


UNITED STATES OF AMERICA,                              )
                                                       )
       Plaintiff-Appellee,                             )
                                                       )
v.                                                     ) ON APPEAL FROM THE UNITED
                                                       ) STATES DISTRICT COURT FOR THE
STEVEN PAUL FAST,                                      ) EASTERN DISTRICT OF KENTUCKY
                                                       )
       Defendant-Appellant.                            )
                                                       )
                                                       )

Before: GIBBONS, GRIFFIN, Circuit Judges; and DOWD, District Judge.*

       JULIA SMITH GIBBONS, Circuit Judge. Defendant-appellant Stephen Fast challenges

the sufficiency of evidence supporting his conviction for carrying a firearm during a drug trafficking

crime under 18 U.S.C. § 924(c)(1). Fast also challenges the admission of certain physical and

opinion evidence.

       For the following reasons, we affirm Fast’s conviction.

                                                  I.

       On June 12, 2006, members of the Kentucky State Police Drug Task Force performed an

undercover drug-buy operation targeting Fast in Knott County, Kentucky. Based on information

obtained from an informant, undercover Detective Russell Dishner arranged to buy drugs from Fast


       *
        The Honorable David D. Dowd, United States District Judge for the Northern District of
Ohio, sitting by designation.

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United States v. Fast

in a gas station parking lot. Fast traveled from his home in Angola, Indiana, to the Knott County gas

station and parked his pickup truck in the station’s lot.

        Detective Dishner, wearing an audio recording device and visually monitored by two other

detectives, approached the vehicle and confirmed that Fast was the driver. Fast then handed Dishner

a piece of paper that allegedly indicated the price of methodone and oxycontin pills and a debt that

a confidential witness owed to him. The pair negotiated the sale of the narcotics. Fast then asked

Dishner to get into the truck, pulled a white bag out of the center console of the truck, and showed

Dishner the contents of the bag which included pill bottles and loose methadone pills. Dishner

walked around to the passenger side of the vehicle, gave the other detectives a prearranged signal

that he had seen the narcotics, and sat in the passenger seat. Dishner then counted out the money that

he and Fast had agreed upon.

        Police officers thereafter arrived on the scene and arrested Fast. The officers recovered

eleven oxycodone pills and a piece of paper with hand-written notations on the floorboard, and a bag

with two oxycodone pill bottles and loose Methadone wafer pills in the center console. The officers

also recovered a loaded .22 caliber revolver directly underneath the bag in the truck’s center console.

        On November 2, 2006, Fast was indicted and charged with trafficking in oxycontin and

methadone in violation of 21 U.S.C. § 841(a)(1), carrying a firearm during and in relation to a drug

trafficking crime in violation of 18 U.S.C. § 924(c)(1), traveling in interstate commerce for purposes

of drug trafficking in violation of 18 U.S.C. § 1952(a)(3), and two related forfeiture counts. At trial,

Fast testified and admitted that he had intended to illegally sell his wife’s prescription drugs. He also

admitted that he had the gun which had been confiscated from his truck’s center console with him

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United States v. Fast

for his protection. The jury convicted Fast on all three substantive counts.

       On July 31, 2007, Fast was sentenced to a total of 111 months of imprisonment. He timely

appealed.

                                                  II.

       Fast first challenges the sufficiency of the evidence supporting his conviction for carrying

a firearm during a drug trafficking crime under 18 U.S.C. § 924(c)(1). Under the familiar standard

set forth in Jackson v. Virginia, 443 U.S. 307, 319 (1979), we review a sufficiency of the evidence

challenge to determine, viewing the trial testimony and exhibits in the light most favorable to the

prosecution, whether any rational trier of fact could have found the essential elements of the crime

beyond a reasonable doubt. United States v. Kuehne, 547 F.3d 667, 696 (6th Cir. 2008).

       Section 924(c)(1) provides that “any person who, during and in relation to any crime of

violence or drug trafficking crime . . . uses or carries a firearm, shall, in addition to the punishment

provided for such crime . . . be sentenced to a term of imprisonment of not less than 5 years . . . .”

18 U.S.C. § 924(c)(1)(A). In order to establish the connection between the carrying and the criminal

activity, “‘the firearm must have some purpose or effect with respect to the drug trafficking crime;

its presence or involvement cannot be the result of accident or coincidence.’” United States v. Walls,

293 F.3d 959, 968 (6th Cir. 2002) (quoting Smith v. United States, 508 U.S. 223, 238 (1993)). “The

weapon must at least facilitate or have the potential of facilitating the drug trafficking offense.” Id.

       It is clear that Fast “carried” the firearm within the meaning of § 924(c)(1) by keeping the

revolver in the console of his vehicle. Muscarello v. United States, 524 U.S. 125, 126–27 (1998).

There is also evidence sufficient to lead a rational trier of fact to conclude that the presence of the

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United States v. Fast

firearm facilitated or had the potential to facilitate the drug trafficking offense. The firearm was

discovered directly beneath the bag of narcotics that Fast admitted he attempted to sell to Detective

Dishner. The firearm was loaded, within reach of Fast during the entire drug transaction, and Fast

admitted at trial that he carried the firearm for his own protection. This evidence would fully support

a rational juror’s finding that Fast carried the weapon during and in relation to a drug trafficking

crime.

         Fast attempts to argue that there is no evidence that he “used” the firearm during the drug

trafficking offense. This argument, of course, is inapposite as Fast was charged and convicted under

the “carry” prong of § 924(c)(1).

                                                   III.

         Fast also challenges the admission of three pieces of evidence at trial. First, Fast argues that

the district court erred in admitting into evidence the piece of paper allegedly containing handwritten

notations regarding the drug transaction that Fast showed to Detective Dishner during the undercover

drug buy. Second, Fast contends that the district court erred in admitting opinion evidence in the

form of police officer testimony regarding the source and meaning of those handwritten notations.

Finally, Fast challenges the admission of police officer testimony describing the officer’s previous

experience with drug trafficking and his views on whether there is a high likelihood that drug

trafficking involves the use of firearms.

         We need not consider Fast’s various evidentiary challenges in detail because each of the

purported errors was harmless. United States v. Baldwin, 418 F.3d 575, 581 (6th Cir. 2005) (“Even

where a district court erroneously admits evidence, we will not reverse the defendant’s conviction

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United States v. Fast

if the error is deemed harmless.”). “An error is harmless ‘when it appears beyond a reasonable doubt

that the error complained of did not contribute to the verdict obtained.’” Id. at 582 (quoting Mitchell

v. Esparza, 540 U.S. 12, 17–18 (2003)). Here, Fast took the stand at trial and admitted that he

traveled across state lines and met Detective Dishner with the intent of selling illegal narcotics. He

also admitted that he carried a firearm with him in his truck for his protection. The firearm was

located directly underneath the stash of illegal narcotics in the vehicle’s center console and within

reach of Fast during the entire drug transaction. This evidence is overwhelming, and supports Fast’s

conviction on all three counts. We therefore conclude that the purported evidentiary errors

challenged by Fast were harmless.

                                                 IV.

       For the foregoing reasons, we affirm Fast’s conviction.




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