F I L E D
United States Court of Appeals
Tenth Circuit
UNITED STATES CO URT O F APPEALS
July 18, 2006
TENTH CIRCUIT Elisabeth A. Shumaker
Clerk of Court
U N ITED STA TES O F A M ER ICA,
Plaintiff - Appellee, Nos. 05-7063 and 05-7069
v. E. D. Oklahoma
JEREM Y WA Y N E STA N LEY , (D.C. No. 05-CR -3-P)
Defendant - Appellant.
OR D ER AND JUDGM ENT *
Before HA RTZ, EBEL, and T YM KOVICH, Circuit Judges.
Jeremy W ayne Stanley was charged in a three-count indictment with (1)
possession with intent to distribute methamphetamine, see 21 U.S.C. § 841(a)(1),
(b)(1)(C); (2) possession of a machine gun, see 18 U.S.C. § 922(o); and (3)
possession of a firearm during the commission of a drug-trafficking crime, see id.
§ 924(c)(1)(B)(ii). A jury found him guilty on all three counts, and he was
*
After examining the briefs and appellate record, this panel has determined
unanimously to honor the parties’ request for a decision on the briefs without oral
argument. See Fed. R. App. P. 34(f); 10th Cir. R. 34.1(G). The case is therefore
submitted without oral argument. This order and judgment is not binding
precedent, except under the doctrines of law of the case, res judicata, and
collateral estoppel. The court generally disfavors the citation of orders and
judgments; nevertheless, an order and judgment may be cited under the terms and
conditions of 10th Cir. R. 36.3.
sentenced to 372 months in prison. On appeal he contends that (1) his due-
process right to present a defense was denied by a witness’s refusal to testify; and
(2) there was insufficient evidence to support the jury’s verdict on the § 924(c)
count. W e affirm, holding that a defendant’s right to a fair trial does not include
the right to force a witness to waive his privilege against self-incrimination, and
that there was sufficient evidence to support the § 924(c) charge.
I. B ACKGR OU N D
After James Glodrey was arrested on drug charges, Officer John Bynum of
the W apanucka Police Department approached him about cooperating with the
police. According to Glodrey’s trial testimony, Officer Bynum told him that “if I
would work with them, . . . he would make all of my troubles disappear.” R . Vol.
II at 197. Glodrey agreed to cooperate and gave Officer Bynum the name of
Jeremy Stanley, from whom he had bought drugs on a number of occasions.
A controlled buy was conducted at M r. Stanley’s home on September 11,
2004. The officers watched from about a block away as Glodrey went to the
house to purchase drugs. M r. Stanley was standing outside his home holding a
bag when Glodrey arrived. He put the bag down, saying, “‘Check that out.’”
R. Vol. II at 210. Glodrey opened the bag and saw that it contained a machine
gun. The two then went into M r. Stanley’s home (with M r. Stanley carrying the
bag containing the gun). Glodrey testified that M r. Stanley showed him some
clips containing ammunition for the gun, but never loaded it; M r. Stanley
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“[p]ulled up the front of his pants and stuck [the gun] in it. . . . He said that the
cops had been driving by that day and he was kind of worried about that and the
first one in the door gets 1200 rounds a minute.” R. Vol. II at 216. Glodrey
purchased a “sixteenth” of methamphetamine for $100, and then left with the
drugs and returned to the police station, where he told the officers what had
occurred. M r. Stanley was located and arrested tw o days later.
On the eve of trial M r. Stanley filed a motion to dismiss the charges against
him, contending “that he can not be afforded a fair and impartial trial” because
Bynum had informed the parties that he would invoke his privilege against self-
incrimination if called to testify. R. Vol. I Doc. 38. The motion noted that
Bynum was no longer a law-enforcement officer, “currently stands charged . . .
with two felony counts relating to his activities in drug cases while employed as
W apanucka Police Chief,” and had previously been placed on probation for
“Indecent Exposure . . . , which is a crime of moral turpitude.” Id. Bynum was
examined by the court outside the presence of the jury and, on the advice of
counsel, invoked his Fifth Amendment privilege. Another hearing was held after
the government rested its case, and Bynum again asserted that he would invoke
his Fifth Amendment privilege if called to testify. Neither side argued that he did
not have the right to do so. Bynum was not called to the stand, and M r. Stanley
was convicted on all charges.
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II. D ISC USSIO N
A. Right to present a defense
M r. Stanley contends that his due process right to present a defense was
violated by Bynum’s refusal to testify, which “prevented the Defendant from
showing to the jury that [Bynum] was charged with felony counts of grand
larceny and embezzlement” and of “falsely reporting a crime, and probation for
indecent exposure.” A plt. Br. at 12. He asserts that the alleged misconduct is
“relevant to Bynum’s character and conduct as an officer entrusted to enforce the
law,” and “to Bynum’s dealings with informant James Glodrey.” Id. at 12-13.
“A criminal defendant’s right to present a defense is essential to a fair
trial.” United States v. Serrano, 406 F.3d 1208, 1214 (10th Cir. 2005). “The
Fifth . . . and Sixth Amendments concomitantly provide a criminal defendant the
right to present a defense by compelling the attendance, and presenting the
testimony, of his own witnesses.” Id. at 1215. But this right “is not absolute.”
Id. “The right to present a defense . . . does not displace traditional testimonial
privileges. . . . Several courts of appeal, therefore, have held that a defendant’s
right to present a defense does not include the right to compel a witness to waive
his Fifth Amendment privilege against self incrimination.” Id. (internal citations
omitted).
In this case M r. Stanley conceded that Bynum had a right to invoke the
privilege, and there is no allegation that the court or the prosecution improperly
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influenced Bynum’s decision. See id., at 1215-16 (right to present a defense is
violated w hen “the government . . . substantially interfere[s] with a defense
witness’s decision to testify.”). W e conclude, therefore, that Bynum’s refusal to
testify did not deprive M r. Stanley of the right to present a defense.
B. Insufficient Evidence
Next, M r. Stanley contends that there was insufficient evidence for the jury
to convict him on the § 924(c) charge. W e review this claim de novo, “viewing
the evidence and the reasonable inferences to be drawn therefrom in the light
most favorable to the government,” and reversing the conviction “only if no
rational trier of fact could have found the essential elements of the crime beyond
a reasonable doubt.” United States v. Toles, 297 F.3d 959, 968 (10th Cir. 2002)
(internal quotation marks omitted).
Section 924(c)(1)(A) provides punishment for any person who (1) “during
and in relation to any . . . drug trafficking crime . . . uses or carries a firearm,” or
(2) “in furtherance of any such crime, possesses a firearm.” See United States v.
Lott, 310 F.3d 1231, 1246 (10th Cir. 2002). Subsection (c)(1)(B)(ii) increases the
penalty if the firearm is a machine gun. M r. Stanley does not dispute that he
“carrie[d] or use[d]” a machine gun, as required by alternative (1) in
§ 924(c)(1)(A). He contends only that he did not carry it “in relation to” the drug
transaction.
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[T]he phrase “in relation to” “at a minimum, clarifies that 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. . . . Instead, the gun at least must facilitate, or have the
potential of facilitating, the drug trafficking offense.”
United States v. Iiland, 254 F.3d 1264, 1271 (quoting Smith v. United States, 508
U.S. 223, 238 (1993) (internal quotation marks and brackets omitted)). “The in
relation to clause is intended to prevent the punishment of possession alone.
Consequently, [it] requires there to be a nexus between the firearm and the
underlying offense.” United States v. Avery, 295 F.3d 1158, 1175 (10th Cir.
2002) (internal quotation marks, citation, and ellipsis omitted).
In this case the evidence showed that M r. Stanley was selling
methamphetamine from his home; he kept the gun on his person or within easy
reach; the gun was an illegal machine gun; the gun was not loaded, but there were
two amm unition clips in the bag with the gun; and the avowed purpose of the gun
was to injure law-enforcement officers who might seek entry into his home.
Certainly, it was no “accident or coincidence” that the gun was present. Iiland,
254 F.3d at 1271 (internal quotation marks omitted). And, given that the gun was
there to protect M r. Stanley’s illicit enterprise, it had a “purpose or effect with
respect to” that crime. Id. (internal quotation marks omitted).
M r. Stanley argues that he was unaware that Glodrey was coming to
purchase drugs, and that the “evidence indicated that the Defendant’s intent
during the initial encounter with Glodrey was to merely show off the gun; the
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Defendant could not be intending to use the gun during a drug trafficking crime
which he was unaware was about to happen.” Aplt. Br. at 18. That he did not
know that Glodrey was coming to purchase drugs is irrelevant; he had the gun in
his possession because the police had been driving by. If anything, his having the
gun in his possession even though he did not know that Glodrey was coming
suggests that he did not have it merely to show it to a friend. W e hold that the
evidence was sufficient to sustain the verdict.
III. C ON CLU SIO N
W e AFFIRM the judgment of the district court.
ENTERED FOR THE COURT
Harris L Hartz
Circuit Judge
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