In the
United States Court of Appeals
For the Seventh Circuit
No. 10-2465
U NITED STATES OF A MERICA,
Plaintiff-Appellee,
v.
G REGORY G. E LLER,
Defendant-Appellant,
Appeal from the United States District Court
for the Northern District of Indiana, South Bend Division.
No. 3:09-cr-00097-RLM-1—Robert L. Miller, Jr., Judge.
A RGUED S EPTEMBER 12, 2011—D ECIDED F EBRUARY 3, 2012
Before B AUER, R OVNER and W ILLIAMS, Circuit Judges.
B AUER , Circuit Judge. On August 13, 2009, Gregory G.
Eller was indicted for one count of manufacturing mari-
juana in violation of 21 U.S.C. § 841(a)(1), one count
of possession of a firearm in furtherance of a drug-traf-
ficking crime in violation of 18 U.S.C. § 924(c), and
one count of possession of a firearm by an unlawful user
of a controlled substance in violation of 18 U.S.C.
§ 922(g)(3). Eller pleaded guilty to the first and third
2 No. 10-2465
counts, and not guilty to the second count. A jury con-
victed Eller on the second count and the court sentenced
him to 60 months in prison, to be served consecutively
to his sentences for counts 1 and 3, followed by three
years of supervised release, and a $300 special assess-
ment. This appeal followed. We affirm.
I. BACKGROUND
On June 3, 2009, an investigation into a marijuana grow
operation led police officers to the home of Gregory G.
Eller, a resident of South Bend, Indiana. When they
searched the house they discovered a reenforced steel
door leading to Eller’s basement where they found
16 drying marijuana plants, 30 live marijuana plants, a
scale, a copy of “The Cannabis Breeder’s Bible,” equipment
for hydroponics growing, notes on paper resembling a
ledger, and a safe. On the first floor of the house the
officers found over a pound of processed marijuana
in bags and a fully loaded .40-caliber Sig Sauer
semi-automatic pistol under the couch in the living
room, just a few feet from the front door to the house.
Eller, his adult brother William, and Eller’s son (age 9)
and nephew (age 8) had all spent the previous night in
the home.
Eller’s trial on Count 2 began on February 23, 2010, and
he argued that he purchased his semi-automatic pistol
as a cautionary response to increasing violence in the
neighborhood. Though he admitted manufacturing and
selling drugs, Eller maintained the firearm was not pur-
chased to protect his marijuana grow operation or the
profits it yielded.
No. 10-2465 3
The next day the jury returned a guilty verdict and on
June 10, 2010, Eller was sentenced to thirteen months
in prison on each of Counts 1 and 3, to be served con-
currently, and sixty months in prison on Count 2 to be
served consecutively to the terms imposed on Counts 1
and 3, followed by three years of supervised release,
and a $300 special assessment. Eller filed a timely appeal
of his conviction on Count 2.
II. DISCUSSION
A. The 18 U.S.C. § 924(c) Void-for-Vagueness Claim
The appellant argues that his conviction on Count 2
in violation of 18 U.S.C. § 924(c) should be reversed
because the statute is unconstitutionally vague as ap-
plied. Eller argues that “he did not have a rea-
sonable opportunity to know he possessed his gun in
furtherance of a drug trafficking crime,” that application
of the statute would “encourage its arbitrary enforce-
ment,” and that the “rule of lenity requires [his] convic-
tion be reversed.” Because the appellant did not chal-
lenge the constitutionality of § 924(c) in the district
court, we review for plain error and will only reverse if:
(1) there was error; (2) the error was clear or obvious;
and (3) the error affected the defendant’s substantial
rights. United States v. Cusimano, 148 F.3d 824, 828 (7th
Cir. 1998).
Title 18 of the United States Code § 924(c) states:
[A]ny person who, during and in relation to any
crime of violence or drug trafficking crime (including
4 No. 10-2465
a crime of violence or drug trafficking crime that
provides for an enhanced punishment if committed
by the use of a deadly or dangerous weapon or device)
for which the person may be prosecuted in a court
of the United States, uses or carries a firearm, or who,
in furtherance of any such crime, possesses a firearm,
shall, in addition to the punishment provided for
such crime of violence or drug trafficking crime—
(i) be sentenced to a term of imprisonment of not
less than 5 years;
(ii) if the firearm is brandished, be sentenced to a
term of imprisonment of not less than 7 years; and
if the firearm is discharged, be sentenced to a term of
imprisonment of not less than 10 years.
18 U.S.C. § 924 (2006).
A statute is unconstitutionally vague if it (1) does not
provide a person of ordinary intelligence a reasonable
opportunity to know what is prohibited, or (2) fails to
provide explicit standards to prevent arbitrary and dis-
criminatory enforcement by those enforcing the statute.
United States v. Plummer, 581 F.3d 484, 488 (7th Cir. 2009)
(citing United States v. Lim, 444 F.3d 910, 915 (7th Cir.
2006)).
Section 924(c) distinguishes between: (1) using or car-
rying a firearm “during and in relation to a drug traf-
ficking crime” and (2) possessing a firearm “in
furtherance of” a drug-trafficking crime. The appellant
highlights this distinction, in addition to the statute’s
“failure to specify any intent requirement,” as evidence
No. 10-2465 5
of vagueness and ambiguity and argues that the
phrasing invites problems, particularly with regard to
notice and enforcement standards.
The appellant contends that the “in furtherance of”
nexus between the drugs and the firearm requires a
greater level of participation than proving the “during
and in relation to” prong. Eller argues that in order to
prove the former, the Government must show the
gun was more than merely available, that it actually
advanced the drug-trafficking operation. Numerous
circuits have interpreted the meaning of § 924(c) and
determined that its terms are unambiguous and “[invite]
uniform enforcement.” These courts have rejected § 924(c)
void-for-vagueness challenges. United States v. Hungerford,
465 F.3d 1113, 1118 (9th Cir. 2006) (citing United States
v. Angelos, 433 F.3d 738, 754 (10th Cir. 2006), United
States v. Camps, 32 F.3d 102, 109 (4th Cir. 1994)). Addition-
ally, as this Court stated in United States v. Mitten, a
possessed gun can forward a drug-trafficking offense
by providing the dealer, his stash, or his territory with
protection. United States v. Mitten, 592 F.3d 767, 777
(7th Cir. 2010). We also find § 924(c) to be clear and intel-
ligible and we reject the challenge to its validity.
B. The Insufficiency of the Evidence Claim
Eller insists that the prosecution failed to adduce suffi-
cient evidence to prove him guilty beyond a reasonable
doubt because it failed to satisfy the “in furtherance of”
nexus of 18 U.S.C. § 924(c). We review sufficiency of
evidence challenges in the light most favorable to the
6 No. 10-2465
prosecution and will only reverse if we determine that
no reasonable finder of fact could find the defendant
guilty beyond a reasonable doubt. United States v.
Dinga, 609 F.3d 904, 907 (7th Cir. 2010). Additionally,
Federal Rule of Criminal Procedure 29 states that any
defendant wishing to challenge evidence sufficiency
must move for judgment of acquittal at the close of evi-
dence or within seven days of the verdict. Fed. R. Civ.
P. 29. There is no indication in the record that the appel-
lant ever made such a motion. Accordingly, this Court
will only reverse if it finds a manifest miscarriage of
justice under the plain error standard of review. Id.
The “in furtherance of” element of § 924(c) requires
that the weapon further, advance, move forward, promote
or facilitate the drug-trafficking crime, and that the pos-
sessed gun further a drug-trafficking offense by pro-
viding the dealer, his stash, or his territory with protec-
tion. United States v. Huddleston, 593 F.3d 596, 602 (7th
Cir. 2010). The appellant correctly argues that the mere
presence of a firearm in a home or location where drugs
are sold is not itself sufficient to prove the “in fur-
therance of” prong of the statute and that there must be
some nexus or connection between the firearm and the
drug-selling operation.
In determining whether a nexus exists, this Court
applies basic common sense and considers particular
factors as set forth in United States v. Seymour. The Seymour
factors include: (1) the type of drug activity that is being
conducted; (2) accessibility of the firearm; (3) the type of
weapon possessed; (4) whether the weapon is stolen;
No. 10-2465 7
(5) the status of the possession (legitimate or illegal);
(6) whether the gun is loaded; (7) proximity to drugs
or drug profits; and (8) the time and circumstances
under which the gun is found. United States v. Seymour,
519 F.3d 700, 715 (7th Cir. 2008).
At trial, the prosecution presented evidence to the
jury that Eller built and ran a marijuana grow operation
from his home, valued in the thousands of dollars, and
that the operation was protected by a reenforced steel
door. By Eller’s own admission he sold the marijuana
he grew; that he was a drug user; that he kept a fully
loaded, .40-caliber Sig Sauer semi-automatic pistol just
a few feet from his front door; that two children, ages 8
and 9, were present in the home when the police dis-
covered the drugs and firearm; that drug traffickers
are often subject to home invasion and robbery due to
the value of their equipment and stash of drugs; and
that over 80% of the time, marijuana grow operators in
Indiana are found with firearms. Moreover, the Gov-
ernment also established that the appellant’s loaded
semi-automatic weapon was not locked up, nor was it
on display as a collector’s item or used for sporting pur-
poses—all further indicia for the jury to believe Eller
possessed his firearm in an attempt to fortify and
protect his product and proceeds.
Our analysis considers the above facts in conjunction
with the Seymour factors, and in addition to all other
relevant facts presented at trial. At sentencing, the trial
court acknowledged that Eller’s marijuana sales and
distribution were modest when compared with a
8 No. 10-2465
wholesale drug enterprise, and this was undoubtedly
part of the reason that the appellant received the mini-
mum sentence on Count 2. But the modest scale of the
drug operation does not itself negate the illegality of
possessing a firearm in furtherance of a drug-trafficking
operation, nor does it provide reasonable doubt with
respect to his motives for possessing a weapon in the
first place. Upon consideration of the facts presented to
the jury, this Court can confidently conclude that the
Government adduced sufficient evidence for a rea-
sonable finder of fact to convict Eller.
C. The Impermissible Expert Testimony Claim
The appellant argues that the district court committed
plain error when it permitted the Government to present
the testimony of special agent Laurie Jolley, a law en-
forcement agent with extensive experience working on
drug-related cases. Eller’s trial counsel did not challenge
the admissibility of the testimony at the time of trial
and we review this issue under the plain error standard.
Again, an appellant must show that an error occurred,
that the error was clear and obvious, and that the error
affected the outcome of the district court proceedings.
Fed. R. Crim. P. 52(b); United States v. Johnson, 624 F.3d
815, 819 (7th Cir. 2010).
Special agent Jolley, who had extensive experience
working on drug cases, both as a narcotics officer and
an ATF agent, provided expert testimony for the prosecu-
tion. Jolley had specialized training in firearms and
drug trafficking and she testified that drug traffickers
No. 10-2465 9
often possess firearms as part of their business opera-
tions in order to protect large sums of cash and inventory.
Jolley spoke generally of the factors she considers
when determining whether a firearm is used in connec-
tion with a drug operation and she ultimately testified
that based on her experience and opinion, the loaded
firearm found in Eller’s home “was there to protect a
marijuana grow operation.”
In response, the appellant now directs our attention
to Federal Rule of Evidence 704 which governs the ad-
missibility of testimony offered by expert witnesses.
Rule 704(a) states that “testimony in the form of an opin-
ion or inference otherwise admissible is not objec-
tionable because it embraces an ultimate issue to be
decided by the trier of fact.” Fed. R. Evid. 704(a). The
exception to Rule 704(a) is Rule 704(b). It states:
No expert witness testifying with respect to the
mental state or condition of a defendant in a criminal
case may state an opinion or inference as to whether
the defendant did or did not have the mental state
or condition constituting an element of the crime
charged or of a defense thereto. Such ultimate
issues are matters for the trier of fact alone.
Fed. R. Evid. 704(b).
According to the appellant, agent Jolley’s testimony
implied she had personal knowledge of Eller’s mental
state, with specific regard to his intent for possessing
the firearm. The appellant argues this was an area the
agent was not qualified to address, that her testimony
unfairly impacted the jury, and that the district court
erred in allowing it.
10 No. 10-2465
The exception to Rule 704(a) is widely regarded to
concern the testimony of psychiatrists or other mental
health professionals who may have a tendency to go
beyond their medical expertise and address legal
matters while unfairly swaying the jury. In United States
v. Lipscomb, this Court noted that Rule 704(b) takes on
a limited role when applied to law enforcement experts
with regard to the actions of defendants. United States
v. Lipscomb, 14 F.3d 1236, 1241 (7th Cir. 1994). In United
States v. Blount, this court went as far to say that such
expert testimony “should not be excluded . . . as long as
it is made clear . . . that the opinion is based on the
expert’s knowledge of common criminal practices, and
not on some special knowledge of the defendant’s
mental processes.” United States v. Blount, 502 F.3d 674,
679 (7th Cir. 2007). See also United States v. Glover, 479
F.3d 511 (7th Cir. 2007); United States v. Sanchez-Galvez,
33 F.3d 829, 832 (7th Cir. 1994) (“[B]ecause the
clandestine nature of narcotics trafficking is likely to
be outside the knowledge of the average layman, law
enforcement officers may testify as experts in order
to assist the jury in understanding these transactions.”).
It was made reasonably clear to the jury that agent
Jolley was not familiar with Eller, and that she was not
present during the search of his home or assigned to
the investigation. Agent Jolley testified that her knowl-
edge was based on common criminal practices, her ex-
perience, and her expert opinions. Accordingly, and
in conformity with this Court’s precedent, we do not
find that the district court erred in allowing the expert
testimony.
No. 10-2465 11
III. CONCLUSION
For the reasons stated herein, we A FFIRM the convic-
tion in favor of the plaintiff-appellee.
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