RECOMMENDED FOR FULL-TEXT PUBLICATION
Pursuant to Sixth Circuit Rule 206
File Name: 08a0132p.06
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
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Plaintiff-Appellee, -
UNITED STATES OF AMERICA,
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No. 06-5605
v.
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DAVID S. MARTIN, -
Defendant-Appellant. -
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Appeal from the United States District Court
for the Western District of Kentucky at Louisville.
No. 05-00013—Jennifer B. Coffman, Chief District Judge.
Argued: February 7, 2008
Decided and Filed: March 31, 2008
Before: NORRIS, BATCHELDER, and GIBBONS, Circuit Judges.
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COUNSEL
ARGUED: Roger W. Kirk, Cincinnati, Ohio, for Appellant. Terry M. Cushing, ASSISTANT
UNITED STATES ATTORNEY, Louisville, Kentucky, for Appellee. ON BRIEF: Roger W. Kirk,
Cincinnati, Ohio, for Appellant. Terry M. Cushing, Monica Wheatley, ASSISTANT UNITED
STATES ATTORNEYS, Louisville, Kentucky, for Appellee.
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OPINION
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ALICE M. BATCHELDER, Circuit Judge. The principal issue in this appeal is whether the
district court’s permitting a police officer to testify as both an expert and a fact witness, without the
court’s issuing a cautionary instruction to the jury, constitutes reversible error, pursuant to United
States v. Lopez-Medina, 461 F.3d 724 (6th Cir. 2006). Because we find that it does not, and because
the appellant’s other arguments lack merit, we AFFIRM the district court’s judgment.
I.
David Martin was a crack dealer in Louisville, Kentucky. The police set up two controlled
buys during which a confidential informant purchased 1.5 and 1.39 grams of crack, respectively.
The police obtained a warrant to search Martin’s residence, an apartment leased to one Susan Tyson.
During the search, the police found and seized 5.16 grams of crack cocaine, drug paraphernalia, a
9 mm handgun with ammunition, some .357 caliber ammunition, and a phone bill addressed to
1
No. 06-5605 United States v. Martin Page 2
Martin at that address. When the police later attempted to arrest Martin, he fled on foot but was
quickly apprehended. The police found 3.21 grams of crack cocaine in his possession.
A federal grand jury indicted Martin on seven counts: two counts of distributing crack
cocaine; one count of being a felon in possession of a handgun; two counts of possessing crack
cocaine with the intent to distribute; one count of possessing a handgun in furtherance of drug
trafficking; and criminal forfeiture of $870 in currency and a 9 mm handgun seized from the
apartment. The case went to trial and a jury convicted Martin on five counts, but acquitted him on
the gun-in-furtherance-of-trafficking charge. The court convicted him on the forfeiture charge when
Martin chose not to oppose it. Martin now appeals.
II.
A.
Martin argues that the district court erred by allowing a police officer to testify as both an
expert in drug trafficking and as a fact witness, because the court did not draw a clear line of
demarcation between the two types of testimony or issue a cautionary instruction to the jury about
the difference between expert and fact testimony. Martin neither raised any objection in the district
court nor requested any cautionary instruction.
An appellant who fails to object in the district court forfeits the right to protest the error on
appeal and we review the claim for plain error. See Fed. R. Crim. P. 52(b). Under the plain error
standard, we may reverse if (1) there was error that (2) was plain, (3) affected a substantial right, and
(4) “seriously affects the fairness, integrity, or public reputation of judicial proceedings.” United
States v. Oliver, 397 F.3d 369, 378 (6th Cir. 2005) (citing United States v. Olano, 507 U.S. 725, 732
(1993)). Whether the trial court committed plain error always depends on the specific facts of the
case at hand. Clark v. Maggio, 737 F.2d 471, 479 (5th Cir. 1984) (“Since the existence of plain error
depends on the facts of the particular case, our holding that introduction of [the] confession
constituted plain error in no way creates a hard and fast rule.”); see also United States v.
Blasingame, 219 F. App’x. 934, 943 (11th Cir. 2007) (“Moreover, as the prejudice element of the
plain error test heavily depends on the facts of the particular case, there can be no hard and fast rule
that will apply to every case.”).
In United States v. Lopez-Medina, 461 F.3d 724, 743 (6th Cir. 2006), we considered a
defendant’s claim that the district court had erred “by allowing [two DEA] agents to testify as both
fact and expert witnesses without giving the jury a cautionary instruction regarding their dual roles.”
Because Lopez-Medina had failed to object in the district court, we reviewed his claim for plain
error. Id. (citing Johnson v. United States, 520 U.S. 461, 466-67 (1997)). We determined that a
cautionary instruction was necessary “to guard against the risk of confusion inherent when a law
enforcement agent testifies as both a fact witness and as an expert witness.” Id. at 744. Absent a
cautionary instruction, a “clear demarcation between expert and fact witness roles . . . may
ameliorate the risk of jury confusion regarding dual role testimony.” Id. But:
Because there was no cautionary jury instruction regarding the [DEA] agents’ dual
witness roles nor a clear demarcation between their fact testimony and expert opinion
testimony, we conclude that the district court committed an error that was plain or
obvious in permitting the dual-role testimony.
Id. at 745. Having found the first two requirements for plain-error, we turned to the third:
[W]e conclude that the district court’s error in its jury instruction, in conjunction
with the other evidentiary errors we find occurred in Medina’s trial, may have
No. 06-5605 United States v. Martin Page 3
affected the outcome of his trial and therefore warrants a reversal of his conviction.
Thus, Medina can establish an effect on his substantial rights.
Id. And, the fourth requirement:
We conclude that permitting [these DEA agents] to testify as experts in their own
investigations and give opinion testimony on the significance of evidence they have
collected, absent any cautionary instruction, threatens the fairness, integrity, and
public reputation of judicial proceedings, regardless of whether the defendant is
actually innocent.
Id. Thus, we found reversible error and vacated Lopez-Medina’s conviction. Id. at 752.
We examine the present case in light of Lopez-Medina, mindful that “plain error depends on
the facts of the particular case,” Clark, 737 F.2d at 479, and that “there can be no hard and fast rule
that will apply to every case.” Blasingame, 219 F. App’x. at 943. In the present case, two police
officers testified to the circumstances of two controlled purchases by a confidential informant of
crack cocaine from Martin. The first officer testified in detail to the pre-buy search of both the
informant and the vehicle he was driving on each of these occasions, the officer’s personal
surveillance of Martin during the entire period of each of the controlled purchases, and the
informant’s delivery to the officer of the crack purchased. That officer also testified to the search
of Ms. Tyson’s apartment pursuant to the search warrant and detailed the evidence obtained there
connecting Martin to the apartment. The officer then explained the significance in the drug trade
of some of those items of evidence, such as digital scales, baggies, razor blades, and firearms, and
opined that the quantities of crack found in the apartment were consistent with distribution and
exceeded the amounts typically possessed for personal use. The second officer gave much more
abbreviated testimony about the surveillance and the controlled buys, but the district court sustained
the defendants’ objection — on the ground that it was cumulative — to the officer’s testimony about
the significance of the drug quantities and the scales and razor blades.
Martin’s counsel did not object to any of this testimony because of its expert character, or
ask for a cautionary jury instruction, and the court did not give any such instruction. After carefully
reviewing the testimony, we conclude that the fact and expert testimony here is not nearly so
thoroughly intertwined as it was in Lopez-Medina, but neither is the line of demarcation between
the two indisputably clear. But, even assuming we were to conclude that the demarcation is
insufficient and this situation involves “an error that was plain or obvious in permitting the dual-role
testimony,” Lopez-Medina, 461 F.3d at 745, we are still left with the question of whether this
purported error affected Martin’s substantial rights. In Lopez-Medina, we found such an effect
based on the district court’s error in its jury instruction, in conjunction with the other evidentiary
errors.” Id. (emphasis added). In the present case, there are no other evidentiary errors. Thus, any
error in this case necessarily had less effect than the error in Lopez-Medina.
Looking at this claim of plain error in the context of the particular facts of this case, the dual
testimony here is insufficient to “show[] an actual effect on the outcome of the case.” Id. (citing
United States v. Jones, 108 F.3d 668, 672 (6th Cir. 1997) (en banc)). The evidence of Martin’s guilt
on the drug counts and the felon-in-possession count was overwhelming. The two police officers
twice actually observed Martin in the act of selling crack cocaine to the confidential informant, and
they testified to those observations. When searching his residence, the police discovered a handgun,
ammunition for two guns and a loaded clip for a third gun, and over five grams of crack cocaine.
When the police arrested Martin, they seized over three grams of crack cocaine. The jury did not
need any expert testimony to help them understand this evidence. And despite the expert testimony
regarding the use of a handgun during drug trafficking, the jury acquitted Martin of the handgun-
No. 06-5605 United States v. Martin Page 4
used-in-trafficking charge. We cannot conclude from the evidence produced and the jury’s findings,
that the duality of the officer’s testimony had an undue effect on the outcome in this case.
Nor can we conclude in this particular case that this dual testimony seriously affected the
fairness, integrity, or public reputation of the proceedings. Quite to the contrary, as the Supreme
Court exclaimed in Johnson, 520 U.S. at 470: “Reversal for error, regardless of its effect on the
judgment, encourages litigants to abuse the judicial process and bestirs the public to ridicule it.” See
also United States v. Cotton, 535 U.S. 625, 634 (2002) (“The real threat then to the ‘fairness,
integrity, and public reputation of judicial proceedings’ would be if respondents, despite the
overwhelming and uncontroverted evidence that they were involved in a vast drug conspiracy, were
to receive a sentence prescribed for those committing less substantial drug offenses because of an
error that was never objected to at trial.”).
Martin’s argument lacks merit. The district court did not commit plain error by allowing the
police officer to testify as both expert and fact witness without a cautionary instruction.
B.
Martin argues that the evidence was insufficient to support a conviction. “In determining
the sufficiency of the evidence to support a guilty verdict ‘the relevant question is whether, after
viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could
have found the essential elements of the crime beyond a reasonable doubt.’” United States v.
Pearce, 912 F.2d 159, 161 (6th Cir. 1990) (quoting Jackson v. Virginia, 443 U.S. 307, 319 (1979)).
On the distribution charge, the government produced two police officers who testified to
witnessing the drug transactions and identified Martin in court. Martin argues that this is
insufficient, inasmuch as the government did not produce any marked currency, photo or video
evidence of the crime, audio recordings of the crime, or confidential informant testimony. But
clearly, a reasonable juror could have believed the officers, so we cannot overturn the jury’s verdict.
On the gun possession charge, the government produced evidence that the gun was found
beside the bed in the master bedroom of Ms. Tyson’s apartment, and that a quantity of men’s
clothing was found in the closet in that bedroom; further, the government produced evidence —
including a telephone bill to Martin at that address as well as a prescription drug container bearing
Martin’s name, which was in the medicine cupboard in the apartment — that Martin was residing
there. Martin argues that Susan Tyson testified to owning the gun and decries the lack of fingerprint
evidence to demonstrate his ownership. But again, a reasonable juror could have drawn the
inference that Martin possessed the gun, and therefore we cannot overturn the jury’s verdict.
Martin’s challenge to the sufficiency of the evidence is without merit.
C.
Martin makes several allegations regarding the prosecutor’s closing argument, some of
which were the subject of objections at trial, and others of which are not. The objections which he
raised at trial we review under the traditional prosecutorial misconduct standard. The others we
review for plain error.
First, Martin argues that the government’s closing argument, which he claims referred to
evidence not admitted and misstated that evidence, was inflammatory and designed to arouse the
jury’s emotion and prejudice. The evidence in question is a self-incriminating rap song, written by
Martin, which the police found in a notebook recovered from his residence. Despite Martin’s claim
to the contrary, this was entered into evidence, and — as Martin explains — the prosecutor read this
song to the jury at the beginning of the rebuttal argument. In short, it was relevant to rebut defense
No. 06-5605 United States v. Martin Page 5
counsel’s argument that the guns were not Martin’s and were not used in drug dealing (an argument
the jury appears to have believed, inasmuch as it acquitted Martin on the gun-used-in-trafficking
charge). This was not a misrepresentation of any evidence nor was it inherently inflammatory.
Next, Martin claims that the prosecutor denigrated defense counsel by stating that the police
do not need to produce every type of evidence that the defense lawyer can “think up,” referring
specifically to fingerprints on the gun. Again, this was a rebuttal argument — specifically, rebuttal
to defense counsel’s argument that (despite the eye witnesses) the prosecutor had not satisfied the
government’s burden of proof beyond a reasonable doubt because it had not produced numerous
other types of evidence, such as videos, audiotapes, fingerprints, etc. There is no basis to conclude
from this exchange that the prosecutor denigrated defense counsel.
Finally, Martin contends that the prosecutor violated his right to a fair trial by calling him
a drug dealer and urging the jury to convict him. Martin cites United States v. Solivan, 937 F.2d
1146 (6th Cir. 1991), for the proposition that it is clear error for the prosecutor to “suggest[] that the
jurors’ community drug problem would continue if they did not convict the defendant.” But in
Solivan, the defense counsel objected, and more importantly, the prosecutor said: “And I’m asking
you to tell her and all of the other drug dealers like her [] — [t]hat we don’t want that stuff in
Northern Kentucky and that anybody who brings that stuff in Northern Kentucky . . . .” Id. at 1148.
The Solivan prosecutor was urging the jury to punish the defendant for the conduct of other drug
dealers generally. That is simply not the case here. The prosecutor here urged the jury to punish
Martin for the conduct of Martin — no one else, just Martin.
Martin’s claim of prosecutorial misconduct is without merit.
D.
Martin contends — as best as we can tell from the vague discussion in his brief — that the
court erred by finding him to be a career offender and thereby calculating a higher advisory sentence
range than it would have calculated if it had not found him to be a career offender. But, Martin’s
counsel conceded at sentencing that Martin is a career offender, and rather than protesting that
finding, argued instead for a departure below the guidelines range.
This argument has no merit. The district court committed no error and we have no basis to
conclude that the district court sentenced Martin unreasonably or abused its discretion in doing so.
III.
For the foregoing reasons, we AFFIRM the judgment of the district court.