United States v. Allen

F I L E D
United States Court of Appeals
Tenth Circuit
PUBLISH
DEC 5 2000
UNITED STATES COURT OF APPEALS
PATRICK FISHER
Clerk
TENTH CIRCUIT

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

v. No. 99-3236

GAVIN E. ALLEN, a/k/a Gerald E.
Allen, a/k/a Andrew Johnson,

Defendant - Appellant.

APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS
(D. Ct. No. 99-CR-10012)

Timothy J. Henry, Assistant Federal Public Defender (David J. Phillips, Federal
Public Defender, with him on the briefs), Office of the Public Defender, Wichita,
Kansas, for Appellant.

Mona Lee M. Furst, Assistant United States Attorney (Jackie N. Williams, United
States Attorney, with her on the brief), Office of the United States Attorney,
Wichita, Kansas, for Appellee.

Before TACHA and PORFILIO, Circuit Judges, and KANE, * District Judge.

TACHA, Circuit Judge.

The Honorable John L. Kane, Jr., Senior District Judge for the District of
*

Colorado, sitting by designation.
 Defendant Allen appeals his conviction in the United States District Court

for the District of Kansas on three counts of possession of crack-cocaine with the

intent to distribute and one count of carrying a firearm in connection with a drug

trafficking charge. We exercise jurisdiction pursuant to 28 U.S.C. § 1291 and

AFFIRM.

I. Facts

On January 26, 1999, a five count indictment was returned against the

Defendant, Gavin E. Allen. The indictment charged Mr. Allen with possession of

crack-cocaine with the intent to distribute on April 16, 1998, August 16, 1998,

and November 29, 1998, in violation of 21 U.S.C. § 841(a)(1); carrying a firearm

in connection with the August 16, 1998, drug trafficking charge in violation of

18 U.S.C. § 924(c); and of being a felon in possession of a firearm in violation of

18 U.S.C. § 924(c).

A. April 16 Arrest

On April 16, 1998, a Wichita, Kansas police dispatcher received an

anonymous call that Gavin Allen, who was wanted on warrants from Sedgwick

County Court, was living at 813 S. Water. The anonymous caller stated that Mr.

Allen was a black male, approximately 6 feet 7 inches tall, weighing about 200

pounds, and driving a brown or maroon car. The dispatcher sent police officers

Nagy and Moon to check the address 813 S. Water for Mr. Allen.

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 The officers arrived at the address and observed a car in the driveway

matching the description given. The officers knocked at the front door and two

black males stepped outside. One of the men—later determined to be the

defendant—fit the description given by the dispatcher and was questioned by

Officer Nagy. When the defendant was told that the officers were looking for a

man named Gavin Allen, he told Officer Nagy that his name was Gerald Allen,

not Gavin Allen. Officer Nagy then asked for identification from the defendant.

The defendant replied that his identification was in his brother Gerald’s car.

Due to the matching physical description, the presence of the described car

in the driveway, and the fact that the defendant had stated that he was Gerald

Allen but then referred to his brother Gerald in the third person, Officer Nagy

concluded that the defendant was indeed Gavin Allen. Officer Nagy placed Mr.

Allen under arrest and searched him, finding a pawn slip bearing Gavin Allen’s

name, 10.77 grams of crack-cocaine, and $194 in cash. At that point, the

defendant admitted to being Gavin Allen.

B. August 16 Incident

Around midnight on August 16, 1998, the Wichita emergency dispatch

operator received a call from Lareasha Washington. Ms. Washington told

dispatch that her boyfriend, Gavin Allen, was outside her apartment threatening

her. Ms. Washington described Mr. Allen as being about six-and-a-half feet tall,

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weighing 200 pounds, wearing a blue and white Adidas shirt, and driving an

older maroon Pontiac Grand Am. She informed dispatch that Mr. Allen always

carried a small black gun with him. Wichita police officer Real responded to the

call.

Officer Real stopped a maroon Pontiac Grand Am as it was leaving the

apartment complex. The driver—later determined to be the defendant—was a

black male wearing a blue and white shirt. Upon questioning, the defendant

informed Officer Real that his name was Gerald Allen. At that point, another

officer, Officer Woodard, arrived on the scene. Due to the concern that the

defendant was carrying a weapon, Officer Real asked the defendant to step out of

the car. The defendant complied and Officer Real patted him down, finding no

weapon. Officer Woodard then asked if there were any weapons in the car. The

defendant said there were not, and he denied Officer Woodard permission to

search the vehicle. Officer Woodard stated that he was going to look anyway and

reached to open the car door. As Officer Woodard reached towards the door, the

defendant fled the scene and both Officers Woodard and Real gave chase. After

less that a minute, Officer Woodard broke off the chase and returned to secure

the vehicle. He searched the car and found a loaded, black Jennings .22 caliber

semi-automatic handgun under the driver’s seat. In addition, Officer Woodard

found 8.25 grams of crack cocaine. Officer Real then returned to the vehicle

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having been unsuccessful in his attempts to catch the defendant.

C. August 26 Arrest

On August 26, 1998, the defendant was again arrested pursuant to an arrest

warrant. Mr. Allen had been seen inside the apartment of Yolanda Madison. Mr.

Allen had been living there for nearly two weeks after moving out of Ms.

Washington’s apartment. Wichita police officers Tucker and Barrier were

directed to the apartment by an individual who had seen the defendant inside.

They identified themselves as police officers outside the door and called the

defendant by name, asking him to open the door.

Looking through a window, Officer Tucker saw Mr. Allen look out the

front door peep hole and walk toward the rear of the apartment. After fifteen

minutes of knocking and requesting entrance, the officers asked the apartment

manager to let them in with her master key. The lease allowed her to enter

apartments without notice for emergency reasons. The manager complied with

the officers’ request. Upon searching the apartment, the officers discovered Mr.

Allen lying on the floor of the bedroom covered with clothing and drawers and

feigning sleep. Mr. Allen was placed under arrest and taken into custody.

Officer Real then came to the police station and identified Mr. Allen as the man

who had run from him and Officer Woodard ten days earlier.

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D. November 29 Arrest

On November 29, 1998, Wichita police officer Hungria was working his

regular beat on South Broadway at around 1:00 a.m. Officer Hungria observed

that room number sixty-four of the County Inn had people coming and going and

suspected drug activity. Officer Hungria obtained the room registration and

discovered that it had been rented to Gavin Allen since November 23rd. Upon

discovering that there was an outstanding warrant for Mr. Allen’s arrest and

calling in back-up, Officer Hungria went to the room and knocked on the door.

After Mr. Allen answered the door, the officers saw marijuana in the room in

plain view. At that point, the officers arrested several people, including Mr.

Allen and Leonard Love.

Both Mr. Allen and Mr. Love were patted down for weapons and

transported to the jail via Officer Hungria’s squad car. Mr. Love was placed in

the back driver’s side seat and Mr. Allen in the back passenger’s side seat. Both

men were handcuffed behind their back. Prior to beginning his shift, Officer

Hungria had checked the rear seat of his squad car to make certain that it was

clean. Mr. Love and Mr. Allen were the first to ride in the rear seat since Officer

Hungria began his shift.

Upon arrival at the jail, Officer Hungria observed Mr. Allen squirming and

moving considerably in his seat. He got both men out of the car, each out of

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their respective sides, and checked the back seat for contraband. Under the

cushion upon which Mr. Allen had been sitting Officer Hungria found a wadded

up brown plastic sack. Before Officer Hungria could look into the sack, Mr.

Allen stated that it was not his and that he was not in possession of it. Officer

Hungria then looked inside and found 2.83 grams of crack cocaine.

E. Pre-trial Motions

On April 19, 1999, the defense made several motions in the district court.

Mr. Allen moved: (1) to suppress the evidence seized on April 16, 1998, for

alleged violations of the Fourth Amendment; (2) to suppress the evidence seized

on August 16, 1998, for alleged violations of the Fourth Amendment; and (3) to

quash his August 26th arrest and to suppress Officer Real’s identification of Mr.

Allen as a result of that arrest. The trial court denied all three motions. 1 On

April 23, 1999, the government moved for a continuance of the trial date due to

the unavailability of the case agent, Dennis Laughrey, who had suffered a heart

attack on April 19, 1999, and would remain unavailable for six to eight weeks.

Over the defendant’s objection, and pursuant to 18 U.S.C. § 3161(h)(3)(A) &

(8)(A), the district court granted the continuance and excluded the period of

1
Mr. Allen also moved to dismiss both the count of possession with intent
to distribute stemming from the November arrest and the count of being a felon in
possession of a firearm. The district court granted the latter and denied the
former. Neither of these rulings is being appealed.

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delay resulting from the unavailability of Agent Laughrey from the seventy-day

speedy trial computation.

II. Discussion

Mr. Allen challenges on appeal the district court’s denial of his three April

19th pre-trial motions and the district court’s grant of the government’s motion

for a continuance beyond the seventy-day limit of the Speedy Trial Act.

Additionally, Mr. Allen alleges that his conviction was not supported by

sufficient evidence. He further challenges the admission at trial of the 911 tape

of Lareasha Washington.

A. Probable Cause to Arrest on April 16, 1998

Mr. Allen contends that the drugs and other items seized from his person

on April 16, 1998, were the fruits of an illegal arrest and should therefore be

suppressed. We review a district court’s findings of historical fact under the

clearly erroneous standard, viewing the evidence in the light most favorable to

the prevailing party. United States v. Erving L., 147 F.3d 1240, 1242 (10th Cir.

1998); United States v. Springfield, 196 F.3d 1180, 1183 (10th Cir. 1999). We

review the question of whether probable cause to arrest existed at the time of the

arrest de novo. Springfield, 196 F.3d at 1183.

Probable cause to arrest exists when an officer, considering the totality of

the circumstances before him, is led to a reasonable belief that an offense has

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been or is being committed by the suspect. United States v. Dozal, 173 F.3d 787,

792 (10th Cir. 1999). On April 16, 1998, Officer Nagy had a warrant for the

arrest of Gavin Allen. Mr. Allen does not contest the validity of the warrant, but

maintains that, at the time of the arrest, the police officers did not have probable

cause to believe that he was indeed Gavin Allen. He argues that his arrest was

based merely on a “hunch” that turned out to be correct. At the time of Mr.

Allen’s arrest on April 16, 1998, Officer Nagy knew the following: (1) dispatch

had received an anonymous tip that Gavin Allen was at the residence; (2) the tip

had accurately described the vehicle that was found at the residence; (3) an

individual meeting the physical description given by the anonymous tip was

found present at the residence; (4) that individual identified himself as Gerald

Allen; and (5) the individual calling himself Gerald Allen then indicated that his

identification was in his brother Gerald’s car.

Mr. Allen relies on the recent Supreme Court decision in Florida v. J.L.,

120 S. Ct. 1375 (2000), for the proposition that Mr. Allen’s arrest was without

probable cause because it was precipitated by an anonymous tip. In J.L., the

Court held that an “anonymous tip that a person is carrying a gun, without more”

does not give rise to reasonable suspicion justifying a stop and frisk of that

person. Id. at 1377. The facts in this case are distinguishable from the facts of

J.L. In J.L., the Court invalidated the stop and frisk in large part because the

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anonymous tip failed to give reliable information that a crime had been or was

being committed. The Court stated that “[a]n accurate description of a subject’s

readily observable location and appearance is of course reliable in this limited

sense: It will help the police correctly identify the person whom the tipster means

to accuse. Such a tip, however, does not show that the tipster has knowledge of

concealed criminal activity.” J.L., 120 S. Ct. at 1379. Here, identity is the only

matter in question. Warrants for Gavin Allen’s arrest had been issued, thus

giving the officers probable cause to conclude that a crime had been committed.

The tip concerned only the whereabouts and identity of Gavin Allen. For the

limited purpose of establishing identity, the tip was sufficiently corroborated.

The vehicle described by the tip was present at the location and an individual

meeting the physical description given was present. Furthermore, the fact that

the individual identified by the tip was indeed Gavin Allen was corroborated

when that person identified himself as Gerald Allen, but later referred to the

vehicle as his brother Gerald’s car.

Viewing the evidence in the light most favorable to the government and

considering the totality of the circumstances, we conclude that Officer Nagy

could reasonably infer that the defendant was actually Gavin Allen and was

simply using the name Gerald as a cover. Thus, we hold that Officer Nagy had

probable cause to arrest Mr. Allen, and we affirm the district court’s denial of

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Mr. Allen’s motion to suppress the evidence seized pursuant to the April 16,

1998 arrest.

B. Reasonableness of Search on August 16, 1998

Before reaching the merits of Mr. Allen’s claims concerning the validity of

the search of Mr. Allen’s car on August 16, 1998, we must resolve the threshold

question of whether Mr. Allen has standing to assert Fourth Amendment rights in

the vehicle. The district court ruled, after hearing the evidence presented at the

suppression hearing and being briefed on the question, that Mr. Allen did not

have such standing. We review a district court’s determination of standing de

novo. United States v. Gama-Bastidas, 142 F.3d 1233, 1237 (10th Cir. 1998).

The Fourth Amendment right of privacy is a personal right. United States

v. Nicholson, 144 F.3d 632, 636 (10th Cir. 1998). It cannot be vicariously

asserted. Rakas v. Illinois, 439 U.S. 128, 133-34 (1978). Thus, “[t]he proper

inquiry is whether [the challenged action] violated the Fourth Amendment rights

of [the] criminal defendant making the challenge.” United States v. Erwin, 875

F.2d 268, 270 (10th Cir. 1989). “The proponent of a motion to suppress has ‘the

burden of adducing facts at the suppression hearing indicating that his own rights

were violated by the challenged search.’” Gama-Bastidas, 142 F.3d at 1238

(quoting United States v. Skowronski, 827 F.2d 1414, 1417 (10th Cir. 1987)).

Whether a defendant’s own Fourth Amendment rights were violated by a

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challenged search turns on the classic Fourth Amendment test: “whether the

defendant manifested a subjective expectation of privacy in the area searched and

whether society is prepared to recognize that expectation as objectively

reasonable.” Erwin, 875 F.2d at 270. This court has held that, in order for a

defendant to show such an expectation of privacy in an automobile, the defendant

bears the burden at the suppression hearing to show a “legitimate possessory

interest in or [a] lawful control over the car.” Gama-Bastidas, 142 F.3d at 1239.

After reviewing the record, we find that Mr. Allen offered no such

evidence at the suppression hearing. In determining whether a defendant has met

his burden to show a reasonable expectation of privacy in an automobile, this

court has considered important, though not determinative, the following criteria:

(1) whether the defendant asserted ownership over the items seized from the

vehicle; (2) whether the defendant testified to his expectation of privacy at the

suppression hearing; and (3) whether the defendant presented any testimony at

the suppression hearing that he had a legitimate possessory interest in the vehicle.

Gama-Bastidas, 142 F.3d at 1238-39; Erwin, 875 F.2d at 270-71. Furthermore,

this court has found the mere fact of presence in the car, or even possession of

the car keys, insufficient to meet the defendant’s burden of proving standing.

United States v. Arango, 912 F.2d 441, 444 (10th Cir. 1990) (holding that

defendant’s mere possession of the vehicle at the time of the search is not

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sufficient to give him standing to object to the search); Erwin, 875 F.2d at 271

(holding that the defendant’s possession of the car keys is not sufficient to give

standing).

Here, Mr. Allen argues that the fact that the district court found that Mr.

Allen was the person driving the car on the night in question is sufficient to

prove standing. In light of our prior holdings, Mr. Allen’s position is untenable.

Mere presence is not sufficient to show a legitimate possessory interest or lawful

control over a vehicle—particularly when the individual flees the scene after

being stopped by law enforcement officers. The fact that Mr. Allen was later

shown to have had a legitimate possessory interest in the vehicle is not relevant

to the question of whether Mr. Allen met his burden at the suppression hearing.

As the proponent of a motion to suppress, Mr. Allen had the burden of proving

he lawfully possessed the vehicle in order to show that he had a reasonable

expectation of privacy in the vehicle. Arango, 912 F.2d at 445-46.

Mr. Allen protests that, had he been presented with the duty to show

standing before the hearing, he would have done so. This is not convincing.

This court will not impose upon either the government or district courts the

burden of informing defense counsel of his evidentiary burdens. We hold that

Mr. Allen failed to meet his burden to show a legitimate possessory interest in or

lawful control over the vehicle at the suppression hearing. Therefore, we affirm

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the district court’s denial of Mr. Allen’s motion to suppress the evidence seized

on August 16, 1998 on the ground that Mr. Allen had no standing to assert a

Fourth Amendment interest in the vehicle. Because we hold that Mr. Allen does

not have standing to challenge the search of the car, we do not examine the

constitutionality of that search.

C. Validity of August 26, 1998 Arrest and Subsequent Identification

Mr. Allen challenges the admissibility of Officer Real’s identification of

Mr. Allen shortly after Mr. Allen’s arrest on August 26, 1998, on the grounds

that the arrest was in violation of the Supreme Court’s decision in Steagald v.

United States, 451 U.S. 204 (1981). Again, we review alleged violations of the

Fourth Amendment de novo. United States v. Gordon, 168 F.3d 1222, 1225

(10th Cir. 1999). We accept the district court’s findings of fact unless they are

clearly erroneous. United States v. Nielsen, 9 F.3d 1487, 1489 (10th Cir. 1993).

In Steagald, the Supreme Court held that, absent exigent circumstances or

consent by one with authority, law enforcement officers may not enter the home

of a third party to execute an arrest warrant on a defendant without a search

warrant. Steagald, 451 U.S. at 216. The district court found that the arresting

officers had consent from a person with the authority to grant such consent—the

property manager—to enter Yolanda Madison’s apartment on August 26th. “A

district court's factual finding is clearly erroneous only ‘if it is without factual

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support in the record or if [this] court, after reviewing all the evidence, is left

with a definite and firm conviction that a mistake has been made.’” United States

v. Patron-Montano, 223 F.3d 1184, 1188 (10th Cir. 2000) (alteration in original)

(quoting Manning v. United States, 146 F.3d 808, 812 (10th Cir.1998)).

After reviewing the record, we cannot say the district court’s findings are

clearly erroneous. In the district court, Mr. Allen never even argued that the

property manager lacked authority to open the apartment or that her consent was

involuntary. Because the search of the apartment was with valid consent, there

was no violation of Steagald and the subsequent identification was admissible.

Thus, we affirm the district court’s denial of Mr. Allen’s motion to quash his

August 26, 1998 arrest and to suppress the subsequent identification of Mr. Allen

by Officer Real.

D. Speedy Trial

The Speedy Trial Act requires that a criminal defendant’s trial commence

within seventy days of his initial appearance or indictment, whichever comes

later. 18 U.S.C. § 3161(c)(1). Under certain enumerated circumstances, the

seventy-day limit tolls. 18 U.S.C. § 3161(h). In particular, § 3161(h)(3)(A)

provides that the limit tolls during “delay resulting from the absence or

unavailability of the defendant or an essential witness.” Furthermore,

§ 3161(h)(8)(A) provides that the limit tolls during “[a]ny period of delay

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resulting from a continuance granted by any judge . . . if the judge granted such

continuance on the basis of his findings that the ends of justice served by taking

such action outweigh the best interest of the public and the defendant in a speedy

trial.”

The district court found that case agent Dennis Laughrey was an essential

witness in the government’s case against Mr. Allen. The district court further

found that Agent Laughrey had suffered a heart attack, had undergone quadruple

bypass surgery, and would be unavailable for six to eight weeks. Thus, pursuant

to § 3161(h)(3)(A), the district court held that any delay due to the unavailability

of Agent Laughrey would toll the seventy-day speedy trial limit. The district

court further held, pursuant to § 3161(h)(8)(A), that a continuance in the trial

date to accommodate such a delay was in the interests of justice and outweighed

the interests of the public and the defendant in a speedy trial.

We review a district court’s application of the legal standards of the

Speedy Trial Act de novo, and the underlying factual findings for clear error.

United States v. Spring, 80 F.3d 1450, 1456 (10th Cir. 1996). In order for a

district court to grant an “ends-of-justice” continuance, it must consider certain

factors set forth in § 3161(h)(8)(B) and it must state “its reasons for finding that

the ends of justice served by the granting of such a continuance outweigh the best

interests of the public and the defendant in a speedy trial.” 18 U.S.C.

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§ 3161(h)(8)(A). Furthermore, “the record must clearly establish that the district

court considered the proper factors at the time such a continuance was granted.”

United States v. Hill, 197 F.3d 436, 441 (10th Cir. 1999).

The district court in this case did not set forth its reasons for finding that

the ends of justice outweighed the best interests of the public and the defendant.

Nor does the record clearly establish that the court considered the factors set

forth in § 3161(h)(8)(B). Thus, the order is insufficient as an ends-of-justice

continuance. However, we think that the district court’s order cannot be properly

characterized as an ends-of-justice continuance despite the court’s purported

reliance on § 3161(h)(8)(A). Rather, we hold that when granting a continuance

as a result of an unavailable and essential witness, § 3161(h)(3)(A) provides

ample independent statutory authority for excluding such periods of delay from

the speedy trial calculation.

Faced with a similar order, the District of Columbia Circuit stated:

Here the district court did, in excluding the period of delay resulting from
the continuance, purport to rely upon paragraph (h)(8) in addition to
paragraph (h)(3). If a delay caused by an unavailable witness could be
excluded under (h)(8) in computing the maximum time to trial, however,
then (h)(3), which specifically governs that situation, would be completely
redundant. In the absence of any indication that Congress intended such a
counter-intuitive result, we therefore conclude that paragraph (h)(8) is not
applicable to an “essential witness” delay.

United States v. McNeil, 911 F.2d 768, 773 (D.C. Cir. 1990). We are convinced

by the reasoning of the McNeil court. Thus, “essential witness” delays granted

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pursuant to § 3161(h)(3)(A), which we hold this to be, need not comply with the

more stringent requirements of “ends-of-justice” continuances which are made

pursuant to § 3161(h)(8)(A).

The parties do not contest the fact that Agent Laughrey was unavailable

during his recovery period. Mr. Allen, however, argues that Agent Laughrey’s

testimony was not essential. The question of whether a particular witness is

“essential” within the meaning of § 3161(h)(3)(A) is a quintessential question of

fact. In this case, the district court’s finding that Agent Laughrey was an

essential and unavailable witness is not clearly erroneous. Agent Laughrey was

the case agent and was to testify both to Mr. Allen’s intent to distribute crack-

cocaine and to whether Mr. Allen’s weapon met the definition of a firearm.

Therefore, we hold that Mr. Allen’s speedy trial rights were not violated and the

district court’s grant of an essential witness delay was proper under

§ 3161(h)(3)(A).

E. Sufficiency of the Evidence

In addition to the above challenges, Mr. Allen argues on appeal that the

government did not introduce evidence sufficient to support his conviction for

possession of crack-cocaine with the intent to distribute and carrying a firearm

during the commission of a drug offense. “We review sufficiency of the

evidence claims de novo, asking ‘only whether, taking the evidence—both direct

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and circumstantial, together with the reasonable inferences to be drawn

therefrom—in the light most favorable to the government, a reasonable jury could

find [Defendant] guilty beyond a reasonable doubt.’” Springfield, 196 F.3d at

1184 (quoting United States v. Jenkins, 175 F.3d 1208, 1215 (10th Cir. 1999))

(alteration in original). “We do not ‘question the jury’s credibility

determinations or its conclusions about the weight of the evidence.’” Id.

(quoting United States v. Lazcano-Villalobos, 175 F.3d 838, 843 (10th Cir.

1999)).

1. Intent to Distribute

To prove a charge of possession with the intent to distribute, the

government must show that the defendant possessed the controlled substance;

knew that he had it; and possessed it with the intent to distribute it. United

States v. Jenkins, 175 F.3d 1208, 1215-16 (10th Cir. 1999). Facts that can go

toward proving that a defendant possessed drugs with the intent to distribute

include: (1) the amount of the drugs; (2) the way they are packaged; (3) the

presence of cash; and (4) the presence of firearms. United States v. Wilson, 107

F.3d 774, 779 (10th Cir. 1997); United States v. Nicholson, 17 F.3d 1294, 1299

(10th Cir. 1994); United States v. Coslet, 987 F.2d 1493, 1495 (10th Cir. 1993).

In this case, the testimony of the arresting officers and Agent Laughrey

showed that Mr. Allen possessed amounts of crack-cocaine consistent with

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distribution. Furthermore, Mr. Allen attempted to portray himself as a user rather

than a dealer. However, no paraphernalia for personal use was found on April

16, August 16, or November 29th. Viewing the evidence in the light most

favorable to the government, the evidence presented supports a plausible

inference that Mr. Allen possessed the drugs with the intent to distribute.

2. Constructive Possession

Mr. Allen further challenges the sufficiency of the evidence that he

possessed any drugs at all on November 29, 1998. The drugs in question were

discovered under the seat in the rear of the patrol car immediately after Mr. Allen

exited the car. “‘A person constructively possesses contraband when he or she

knowingly holds ownership, dominion or control over the object and premises

where it is found.’” Springfield, 196 F.3d at 1184 (quoting Lazcano-Villalobos,

175 F.3d at 843). The government must show a connection between the

defendant and the drugs. Jenkins, 175 F.3d at 1216.

At trial, Officer Hungria testified that he had checked the seat before his

shift and found nothing. He further testified that after he arrested Mr. Allen and

placed him into the back seat, he observed Mr. Allen moving around quite a bit.

Finally, Officer Hungria testified that upon removing Mr. Allen from the patrol

car at the jail, the drugs were found directly beneath Mr. Allen’s seat. A

sufficient nexus was established between Mr. Allen and the drugs such that a

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reasonable inference could be made that Mr. Allen constructively possessed the

drugs.

3. Proof of a Firearm

The evidence at trial showed that a loaded .22 caliber handgun was found

under the seat of the driver’s side seat of the car being driven by Mr. Allen on

August 16, 1998. Mr. Allen does not challenge the sufficiency of this evidence,

but rather challenges the government’s evidence that what was found was

actually a “firearm” as defined in 18 U.S.C. § 921(a)(3). Mr. Allen argues that,

because Agent Laughrey only test fired the weapon with a blank, and testified as

such at trial, there was no evidence that the weapon was capable of firing an

actual projectile as required by statute. The argument is completely without

merit. Agent Laughrey properly tested the weapon with a blank cartridge and

subsequently testified at trial that the weapon was capable of firing a projectile.

This evidence is sufficient.

F. Admission of the 911 Tape

Finally, Mr. Allen challenges the district court’s admission into evidence

of the 911 call made by Lareasha Washington on August 16, 1998. We review

the district court’s evidentiary rulings for an abuse of discretion. United States v.

Jones, 44 F.3d 860, 873 (10th Cir. 1995). The district court found the 911 tape

admissible as both a present sense impression and an excited utterance. The

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statements made by Ms. Washington were made at the time she saw Mr. Allen

outside her door, trying to get in, and again upon his return after leaving once.

In fact, Mr. Allen left while Ms. Washington was on the phone with the

dispatcher. The evidence showed that Ms. Washington was distressed by Mr.

Allen’s presence at her apartment. The tape was admissible as both a present

sense impression and an excited utterance, and its admission was not an abuse of

discretion.

III. Conclusion

For the foregoing reasons, the conviction of Gavin Allen on three counts of

possession of crack-cocaine with the intent to distribute and one count of

carrying a firearm in connection with a drug trafficking charge is AFFIRMED.

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