United States v. Davis

NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
File Name: 08a0690n.06
Filed: November 12, 2008

NO. 07-5361

UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT

UNITED STATES OF AMERICA, )
)
Plaintiff-Appellee, ) ON APPEAL FROM THE UNITED
) STATES DISTRICT COURT FOR
v. ) THE EASTERN DISTRICT OF
) TENNESSEE
JOHN T. DAVIS, )
)
Defendant-Appellant. )

Before: MOORE and COOK, Circuit Judges; HOOD, Senior District Judge.*

HOOD, Senior District Judge. A jury convicted John T. Davis (“Davis”) of conspiring to

distribute and possess with the intent to distribute five kilograms or more of cocaine in violation of

21 U.S.C. §§ 841(a)(1) and 846 (Count One), aiding and abetting an attempt to possess five

kilograms or more of cocaine with the intent to distribute in violation of 21 U.S.C. § 841(a)(1)

(Count Three) and 18 U.S.C. § 2 , and being a felon in possession of a firearm in violation of 18

U.S.C. § 922(g)(1) (Count Five). Davis was sentenced to the statutory mandatory minimum term

of imprisonment of 240 months on the drug charges and to a concurrent sentence of 120 months on

the firearm charge. Davis appeals his conviction and his sentence on numerous grounds. For the

reasons that follow, we affirm Davis’s conviction and sentence.

*The Honorable Joseph M. Hood, Senior United States District Judge for the Eastern
District of Kentucky, sitting by designation.
 I. FACTS

On June 13, 2006, a federal grand jury returned a superceding indictment charging Davis and

co-defendants Aldifonso Gonzales and Johnny Fachorn with conspiring between December 1, 2004

and February 17, 2006, to distribute and possess with the intent to distribute five kilograms or more

of cocaine (Count One), conspiring to distribute and possess with the intent to distribute 500 grams

or more of methamphetamine (Count Two), and aiding and abetting one another in an attempt to

possess five kilograms or more of cocaine with the intent to distribute (Count Three). Davis was

also charged with possession of a firearm in furtherance of the cocaine offense charged in Count

Three, in violation of 18 U.S.C. § 924(c)(1) (Count Four), and with being a felon in possession of

a firearm, in violation of 18 U.S.C. § 922(g)(1) (Count Five).

Davis’s co-defendants Gonzales and Fachorn pleaded guilty to the conspiracy charged in

Count One. On October 31, 2006, after a five-day jury trial, Davis was convicted of the Count One

conspiracy offense, the Count Three substantive drug offense, and the Count Five

felon-in-possession offense. The jury found Davis not guilty of the crimes charged in Counts Two

and Four. On March 19, 2007, Davis was sentenced to the statutory mandatory minimum term of

imprisonment of 240 months on Counts One and Three and to a concurrent sentence of 120 months

on Count Five. Davis timely appealed.

II. ANALYSIS

A. DEA Agents

Davis contends that the court below erred in allowing Drug Enforcement Agents Templeton

and Wilson to testify regarding terms and practices related to drug trafficking when those terms and

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practices were outside the knowledge of lay persons “without having the agent qualified as experts

and bypassing the reliability requirement for admission of expert testimony.” Davis again concedes

that the issue was not raised in the court below and this Court merely reviews for plain error.

Specifically, Davis complains that Agents Templeton and Wilson should not have been

permitted to explain the term “fronting” as it relates to drug trafficking. Fed. R. Evid. 702 permits

the admission of specialized knowledge from a witness qualified as an expert by “knowledge, skill,

experience, training, or education” if it will “assist the trier of fact to understand the evidence or to

determine a fact in issue.” Fed. R. Evid. 702. This Court “regularly allows qualified law

enforcement personnel to testify on characteristics of criminal activity, as long as appropriate

cautionary instructions are given, since knowledge of such activity is generally beyond the

understanding of the average layman.” United States v. Swafford, 385 F.3d 1026, 1030 (6th Cir.

2004) (citing United States v. Thomas, 99 Fed. Appx. 665, 668-69 (6th Cir. 2004)).

The district court gave the jury the following limiting instruction concerning expert

testimony:

The rules of evidence provide if scientific, technical or other specialized knowledge
might assist the jury in understanding the evidence or in determining a fact in issue,
a witness qualified as an expert by knowledge, skill, experience, or training or
education may testify and state his opinion received in evidence in this case and give
it such weight as you may think it deserves. If you should decide that the opinion of
an expert witness is not based upon sufficient education and experience, or if you
should conclude that the reasons given in support of the opinion are not sound or that
the opinion is outweighed by other evidence, then you may disregard the opinion
entirely.

Defendant does not contest that Agents Templeton and Wilson were in fact qualified to

provide specialized testimony concerning drug trafficking, only complaining that the district court

did not squarely address the issue of their qualifications. This fact, when combined with the rule of

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Swafford, requires a finding that the district court did not plainly err in failing to sua sponte address

the issue of the agents’ qualifications as experts on drug trafficking.

B. Double Jeopardy

The Fifth Amendment of the United States Constitution requires that no person be punished

twice for the same offense. U.S. Const. amend. V. Davis argues that he was subjected to double

jeopardy in violation of the Fifth Amendment based upon his convictions on the conspiracy charged

in Count One and the substantive drug offense charged in Count Three. Again, Defendant concedes

that this alleged error was not raised below and that this Court’s review is for plain error. See United

States v. Davis, 306 F.3d 398, 416-17 (6th Cir. 2002)

Count One charged Davis with “conspir[ing] . . . to commit violations of 21 U.S.C. §

841(a)(1), that is, to distribute and possess with the intent to distribute five kilograms or more of a

mixture and substance containing a detectable amount of cocaine, a Schedule II controlled

substance.” As discussed, supra, Count Three charged Davis with the substantive drug offense of

attempting to possess with the intent to distribute the five kilograms of cocaine. In United States v.

Felix, 503 U.S. 378 (1992), the Supreme Court reaffirmed the “rule that a substantive crime and a

conspiracy to commit that crime are not the ‘same offense’ for double jeopardy purposes. Id. at 389.

See also Murr v. United States, 200 F.3d 895 (6th Cir. 2000); United States v. Smith, 963 F.2d 892

(6th Cir. 1992); United States v. Barrett, 933 F.2d 355 (6th Cir. 1991).

Davis correctly points out that in Rutledge v. United States, 517 U.S. 292 (1996), the

Supreme Court held that conspiracy to distribute controlled substances is a lesser included offense

of conducting a continuing criminal enterprise. Rutledge did not hold, however, that conspiracy to

possess with intent to distribute a controlled substance is a lesser-included offense of aiding and

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abetting an attempt to possess with the intent to distribute a controlled substance. Davis also finds

no support for his position in the case law of this Court. Other courts have expressly rejected the

argument that the rule affirmed in Felix is altered when the substantive offense charges aiding and

abetting. See United States v. Rivera-Martinez, 931 F.2d 148 (1st Cir. 1991) (holding that double

jeopardy clause did not prohibit sentences for both the continuing criminal enterprise and aiding and

abetting); see also United States v. Arbelaez, 812 F.2d 530 (9th Cir. 1987) (holding that punishment

of defendant convicted of conspiracy to possess cocaine with the intent to distribute and of aiding

and abetting was not precluded by the double jeopardy clause). We hold the act of conspiring to

possess cocaine is separate and distinct from aiding and abetting the actual attempt to possess the

cocaine. No plain error is found.

C. Sufficiency of the Indictment

Defendant first argues that Count Three of the indictment failed to sufficiently charge aiding

and abetting an attempt to possess more than five kilograms of cocaine because it did not allege (1)

any overt act as a substantial step toward the underlying attempt, (2) any particular act of help or

encouragement as an aider and abettor, and (3) that Defendant intended to help commit or encourage

the offense. Defendant concedes that this objection was not raised below and that this Court’s

review is for plain error. (Def. Br. 34). United States v. McAuliffe, 490 F.3d 526, 530-31 (6th Cir.

2007) (citing Fed. R. Crim. P. 52(b) and United States v. Cotton, 535 U.S. 625, 631-32 (2002)).

An indictment is sufficient if it “fully, directly, and expressly . . . set[s] forth all the elements

necessary to constitute the offense intended to be punished.” McAuliffe, 490 F.3d at 531 (citing

United States v. Douglas, 398 F.3d 407, 411 (6th Cir. 2005) (internal citation and quotation marks

omitted)).

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 In particular, the indictment must: (1) “set out all of the elements of the charge[d]
offense and must give notice to the defendant of the charges he faces[,]” and (2) “be
sufficiently specific to enable the defendant to plead double jeopardy in a subsequent
proceeding, if charged with the same crime based on the same facts.”

Id. “An indictment is to be construed liberally in favor of its sufficiency.” Id. (citing United States

v. Davis, 306 F.3d 398, 411 (6th Cir. 2002)).

Count Three charged that “on or about February 17, 2006, within the Eastern District of

Tennessee and elsewhere, the defendants . . . aided and abetted by each other, did knowingly and

intentionally attempt to possess with the intent to distribute five kilograms or more of . . . cocaine.”

As noted by Davis, the Supreme Court recently held that to charge an attempt to commit a criminal

act, the indictment “need not specifically allege a particular overt act.” United States v. Resendiz-

Ponce, 549 U.S. 102, --- , 127 S.Ct. 782, 788 (2007); accord McAuliffe, 490 F.3d at 531. The

substantial step or overt act is charged where the grand jury alleges that a defendant “did attempt”

the commission of a specific criminal act. Resendiz-Ponce, 127 S.Ct. at 788 (“Not only does the

word ‘attempt’ as used in common parlance connote action rather than mere intent, but, more

importantly, as used in the law for centuries, it encompasses both the overt act and intent elements.”).

Davis’s argument that the indictment failed to allege specific instances of encouragement or

assistance he performed in furtherance of the crime also fails. This Court previously announced the

rule that “an indictment is not defective merely because it does not explain in what respect the

defendant aided or abetted.” Davis, 306 F.3d at 412.

Viewed under the liberal standard of review with which this Court must consider the

indictment, it is apparent that the indictment provided Davis with adequate notice of the crimes

charged and was not defective.

D. Search of Tennessee Residence

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 Davis argues that the district court erred in denying his motion to suppress the evidence

seized from his Tennessee residence because the affidavit in support of the search warrant did not

establish a sufficient nexus between his residence and his drug trafficking. The motion to suppress

was referred to a magistrate judge for a report and recommendation. The magistrate judge

recommended that the motion to suppress be denied and advised Davis that any objections to the

report and recommendation should be filed within ten days. No objections were filed, and the

district court adopted the report and recommendation as its own, denying Davis’s motion to

suppress.

Failure to file objections to a report and recommendation after receiving notice constitutes

a waiver of the issue on appeal. Thomas v. Arn, 474 U.S. 140, 155 (1985). Absent identification

of an error so egregious that failure to permit appellate review would result in a miscarriage of

justice, this Court will not review such assignments of error on appeal. United States v. Sullivan,

431 F.3d 976, 984 (6th Cir. 2005). Davis having failed to object to the report and recommendation

in the court below and having failed to identify any egregious error, the Court declines to consider

this objection on appeal.

E. Protective Sweep of Florida Residence

Davis argues that the search of his Florida residence incident to his arrest violated his Fourth

Amendment rights and that the fruit of the search should have been suppressed. Davis failed to file

a motion to suppress said evidence and has thus waived his objection on appeal. See United States

v. Lopez-Medina, 461 F.3d 724, 738 (6th Cir. 2006).

F. Propensity evidence

Davis next contends that the district court erred in admitting evidence pursuant to Fed. R.

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Evid. 404(b). Davis fails to specify which evidence was improperly admitted, referring only to

“certain 404(b)-type evidence” and “a host of other 404(b)-type evidence.” In addition to the fact

that the issue was not raised below and is, thus, forfeited on appeal, the Court declines to review the

matter as “issues adverted to in a perfunctory manner, unaccompanied by some effort at developed

argumentation, are deemed waived.” United States v. Johnson, 440 F.3d 832, 846 (6th Cir. 2006).

G. Sufficiency of the Evidence

Davis argues that there was insufficient evidence for the jury to convict him on Counts One,

Three and Five. At the close of the prosecution’s case, Davis made a motion for judgment of

acquittal pursuant to Fed. R. Crim. P. 29. It does not appear that Davis renewed that motion at the

close of all evidence. Accordingly, this Court’s review is “limited to determining whether there was

a manifest miscarriage of justice.” United States v. Paige, 470 F.3d 603, 608 (6th Cir. 2006) (citing

United States v. Price, 134 F.3d 340, 350 (6th Cir. 1998) (internal quotation marks omitted)). Even

if Davis had renewed his motion, permitting this Court to review the matter under the standard set

forth in Jackson v. Virginia, 443 U.S. 307, 319 (1979), the evidence, when viewed in a light most

favorable to the prosecution, would have allowed a rational trier of fact to find the elements of the

crimes beyond a reasonable doubt. “When deciding whether any rational trier of fact could have

found the essential elements of the crime, this court does not ‘weigh the evidence, consider the

credibility of witnesses, or substitute its judgment for that of the jury.’” United States v. Gardner,

488 F.3d 700, 710 (6th Cir. 2007) (citing United States v. Chavis, 296 F.3d 450, 455 (6th Cir.

2002)).

1. Count One

The essential elements of the drug conspiracy charge in Count One include: an agreement

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to violate the drug laws; knowledge of and intent to join the conspiracy; and participation in the

conspiracy. See 21 U.S.C. §§ 841(a)(1) and 846; see also Gardner, 488 F.3d at 710. Davis argues

that there was “no consistent or reliable testimony about the amount of the cocaine” and that the

amount of money he possessed was insufficient to purchase the five kilograms of cocaine charged

in the indictment. Based upon the testimony of Davis’s co-defendant, Gonzalez, about the amount

of cocaine involved, a rational juror could have believed that the conspiracy lasting from December

2004 to February 2006 included well over five kilograms of cocaine.

2. Count Three

Davis argues the evidence was insufficient to prove beyond a reasonable doubt that he aided

and abetted the attempt to possess cocaine because “[t]here were not meetings or conversations

between Jesse [Marino, the confidential informant] and Mr. Davis” and “Mr. Davis’s interaction

with [co-defendant] Fachorn was virtually nonexistent, or at most benign.” To prove that Davis

aided and abetted the attempt to possess cocaine, the United States had to prove (1) an act by Davis

that contributed to the commission of the attempt to possess cocaine and (2) Davis’s intent to aid

in the crime’s commission. Gardner, 488 at 714.

At trial, there was evidence that Davis aided and abetted the attempt to possess cocaine by

providing co-defendants Gonzalez and Fachorn with lodging, meals, and transportation while they

were in Tennessee negotiating with Jesse, the confidential informant they believed would produce

the cocaine; by acquiring cash for the purchase of the cocaine; by agreeing that the transaction could

take place at his business office; and by offering his Ford Excursion as partial payment for the

cocaine. There was ample evidence from which a rational juror could conclude that Davis aided and

abetted the attempt to possess the cocaine.

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 3. Count Five

While acknowledging that constructive possession is sufficient to support a conviction for

being a felon in possession of a handgun, Davis argues that the evidence was insufficient to convict

him of the crime because “the government offered no direct evidence that Mr. Davis ever had actual

possession of the firearm.” At trial, Davis’s girlfriend, Kimberly Shaffer, testified that the handgun

found in the bedside table on the side of the bed where Davis usually slept was her handgun;

however, the house belonged to Davis, and he and Shaffer shared the bedroom. It is the rule of this

Court that constructive possession may be shown by “[p]roof that the person has dominion over the

premises where the firearm is located.” United States v. Hadley, 431 F.3d 484, 516 (6th Cir. 2005)

(citing United States v. Kincaide, 145 F.3d 771, 782 (6th Cir. 1998)) (holding that the defendant

constructively possessed the firearm found in the drawer of an armoire located in the bedroom shared

by defendant and his wife). The fact that the firearm in the instant case was found in the bedside

table in the room shared by Davis and his girlfriend provided sufficient evidence from which a

rational juror could conclude that Davis constructively possessed the firearm.

H. Sentence

Finally, Davis argues that his statutory minimum sentence of two hundred and forty (240)

months violate his rights under the Fifth, Sixth or Eighth Amendments. Davis acknowledges that

his position is contrary to the law and in fact candidly admits that “he [i]s unaware of any supporting

authority at this time that would allow the district court to depart below the twenty (20)-year

mandatory minimum sentence.” Davis having conceded that there is no support for his contention,

his sentence shall be affirmed.

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 III. CONCLUSION

For the foregoing reasons, Davis’s convictions and sentence are AFFIRMED.

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