United States v. Gainey

United States Court of Appeals,

Eleventh Circuit.

No. 95-4421.

UNITED STATES of America, Plaintiff-Appellee,

v.

Daniel Patrick GAINEY, Defendant-Appellant.

May 5, 1997.

Appeal from the United States District Court for the Southern
District of Florida. (No. 94-8089-CR), Donald R. Graham, Judge.

Before BARKETT, Circuit Judge, KRAVITCH, Senior Circuit Judge, and
HARRIS*, Senior District Judge.

BARKETT, Circuit Judge:

Daniel Patrick Gainey appeals his conviction and 288-month

sentence for possession of a firearm by a convicted felon,

possession of a firearm with an obliterated serial number, and

possession with intent to distribute heroin. Gainey presents six

claims on appeal: (1) the district court improperly denied his

motion to suppress evidence; (2) the district court admitted

physical evidence that lacked foundation and a proper chain of

custody; (3) the district court erroneously denied his motion for

a new trial on the grounds of prosecutorial misconduct; (4) the

jury's verdict of guilty for possessing a firearm with an

obliterated serial number, in violation of 18 U.S.C. § 922(k), was

not supported by sufficient evidence; (5) the jury's verdict of

guilty for possessing heroin with the intent to distribute it, in

violation of 21 U.S.C. § 841(a)(1), was not supported by sufficient

*
Honorable Stanley S. Harris, Senior U.S. District Judge for
the District of Columbia, sitting by designation.
evidence; (6) the district court improperly enhanced his offense

level under U.S.S.G. § 4B1.4.

Upon a review of the record, we conclude that the evidence

presented was sufficient to support Gainey's convictions. We also

find no reversible error in the trial court's evidentiary rulings,

and rulings denying Gainey's motion to suppress and motion for a

new trial on the grounds of prosecutorial misconduct. As to the

latter motion, we note that the misconduct alleged focused on the

prosecutor's closing argument in which she stated:

... Mr. Gainey's residence was a drug den. He had the spoons.
He had the needles. He had the cut. He had the heroin around
his neck, and he had the weapons. These are all tools of the
drug trade.

Ladies and gentlemen, we live here in South Florida and
we are very familiar with it by now.

Gainey's counsel immediately objected to the last sentence. The

district court correctly sustained the objection and gave limiting

instructions to the jury. We agree with the government that this

issue does not warrant reversal as it was harmless error.

Nevertheless, we address it here because we reject the government's

characterization of the prosecutor's comment as simply an

"inartful" attempt to ask the jury to apply their "common

experience."

In evaluating the facts of a case, the law permits jurors to

"apply their common knowledge, observations and experiences in the

affairs of life." United States v. Cruz-Valdez, 773 F.2d 1541,

1546 (11th Cir.1985) (en banc) (citations omitted). Such an

instruction recognizes that in assessing credibility or the

reasonableness of a position, people inherently apply conclusions
about human behavior based on common experiences of daily living.

For example, jurors may use "common sense," derived from the

repetitive pattern of human behavior and experiences common to all

of us, in discerning the reliability of a person who gives

conflicting testimony. However, the law does not permit jurors to

construe accounts of current events, gleaned from sources

extraneous to the case record (such as newspapers), as somehow

applicable to the question of a particular defendant's guilt or

innocence. A jury cannot appropriately reason that a particular

defendant is guilty based on media reports of rampant drug use

coupled with the fact that the defendant is accused of a drug

crime. The prosecutor's comment in this case draws upon widespread

community fears about drugs, and implies that those fears can or

should inform the process of assessing Gainey's guilt. In other

words, the reference invites the jury to judge the case upon

standards and grounds other than the evidence and law of the case,

and is thus objectionable and improper. United States v. Beasley,

2 F.3d 1551 (11th Cir.1993); Arrieta-Agressot v. United States, 3

F.3d 525 (1st Cir.1993); United States v. Johnson, 968 F.2d 768

(8th Cir.1992); United States v. Solivan, 937 F.2d 1146 (6th

Cir.1991). We caution counsel from employing arguments immaterial

to the defendant's guilt or innocence, especially when they appear

calculated to "shift the emphasis from evidence to emotion."

United States v. Doe, 903 F.2d 16, 25 (D.C.Cir.1990) (racial bias

appeal in prosecutor's closing argument was reversible error).1

1
Citing to United States v. Delgado, 56 F.3d 1357 (11th
Cir.), cert. denied, --- U.S. ----, 116 S.Ct. 404, 133 L.Ed.2d
323 (1995), United States v. Zielie, 734 F.2d 1447 (11th
 In this case, however, the impact of the prosecutor's

inappropriate comment was mitigated by the district court's

curative instructions. See United States v. Smith, 918 F.2d 1551,

1562 (11th Cir.1990) ("Because statements and arguments of counsel

are not evidence, improper statements can be rectified by the

district court's instruction to the jury that only the evidence in

the case be considered.") We find that the comments were not

"prejudicial to a substantial right" of the defendant. United

States v. Beasley, 2 F.3d 1551, 1560 (11th Cir.1993) (citations

omitted). Therefore, the district court did not err in denying

Gainey's motion for a new trial.

Finally, Gainey argues that the district court improperly

determined his offense level under U.S.S.G. § 4B1.4 which

authorizes an enhancement "if the defendant used or possessed the

firearm or ammunition in connection with a crime of violence or

controlled substance offense." U.S.S.G. § 4B1.4(b)(3)(A). Gainey

contends that the loaded gun in his pocket fails to qualify as

possession of a firearm "in connection with" his heroin offense.

The government argues that the necessary nexus between the weapon

and the drug offense is satisfied here because, when he was

Cir.1984), cert. denied, 469 U.S. 1189, 105 S.Ct. 957, 83 L.Ed.2d
964, 469 U.S. 1216, 105 S.Ct. 1192, 84 L.Ed.2d 338 (1985), and
United States v. Metz, 608 F.2d 147, 158 (5th Cir.1979), the
concurring opinion suggests that this circuit sanctions the type
of comment made by the prosecutor in this case. However, these
cases do not provide blanket permission for the government to
make whatever comments it chooses regarding society's drug
problems. The cited cases hold only that the comments in those
cases did not constitute reversible error. Moreover, the thrust
and tenor of those comments differ meaningfully from the
prosecutor's comment in this case, which could be deemed as an
invitation to consider "evidence" extraneous to the record.
arrested, Gainey had a loaded gun in his pocket and a container

holding fifty-five capsules of heroin around his neck. This

circuit has not squarely addressed the relationship that must exist

between a firearm and a violent crime or controlled substance

offense—that is, the meaning of the phrase "in connection with"—for

purposes of § 4B1.4(b)(3)(A).

However, we look to a similar Guidelines provision, U.S.S.G.

§ 2K2.1(b)(5), for guidance. U.S.S.G. § 2K2.1(b)(5) provides for

an increase in the base offense level "[i]f the defendant used or

possessed any firearm or ammunition in connection with another

felony offense ..." In U.S. v. Whitfield, 50 F.3d 947, 948-49

(11th Cir.), cert. denied, --- U.S. ----, 116 S.Ct. 234, 133

L.Ed.2d 163 (1995), this Court described the circuit-split in

interpreting this phrase. Some circuits have held that the

government must show that the weapon was possessed in a way that

permitted an inference that it facilitated a defendant's felonious

conduct. United States v. Routon, 25 F.3d 815, 819 (9th Cir.1994);

United States v. Thompson, 32 F.3d 1, 6 (1st Cir.1994); United

States v. Gomez-Arrellano, 5 F.3d 464, 466-67 (10th Cir.1993).

Other circuits have held that mere possession of a firearm in

connection with another felony qualifies the defendant.2 United

2
Some courts have blurred the distinction between these
competing interpretations by holding that proximity of the gun to
the defendant may be sufficient—if the gun is loaded and easily
accessible to the defendant. See United States v. Patterson, 97
F.3d 192 (7th Cir.1996) (close proximity of gun to illicit drugs
permitted inference that gun, possessed in past for facilitating
drug offenses, was still possessed for that purpose); United
States v. Sturtevant, 62 F.3d 33 (1st Cir.1995) (loaded weapon
carried by defendant during the commission of an assault
satisfied requirements of § 2K2.1(b)(5)).
States v. Condren, 18 F.3d 1190, 1197 n. 19 (5th Cir.), cert.

denied, 513 U.S. 856, 115 S.Ct. 161, 130 L.Ed.2d 99 (1994); United

States v. Woods, 1995 WL 428334, at *3 (6th Cir.1995). In

Whitfield, this Court held that under either interpretation, the

defendant would not prevail.

Similarly, we find that whatever the appropriate legal

benchmark, the district court did not commit clear error in its

factual finding that Gainey's weapon was used or possessed "in

connection with" his heroin offense. In this case, the evidence

supported the district court's inference. The police obtained a

search warrant for Gainey's residence based on a controlled heroin

buy by a confidential informant. When the officers entered the

residence, Gainey was wearing a container of heroin around his

neck. In his left pant's pocket, Gainey had placed a loaded gun,

making it consistently and immediately accessible to him. In

another pocket, the police found $377 in U.S. currency. Taken

together, these facts are sufficient to establish that the presence

of the gun potentially emboldened Gainey to undertake illicit drug

sales. The district court did not err in determining Gainey's

offense level under U.S.S.G. § 4B1.4(b)(3)(A).

AFFIRMED.

STANLEY S. HARRIS, Senior District Judge, specially
concurring:

I concur in the result and in the remainder of the Court's

opinion, but write separately to express my disagreement with the

majority's treatment of alleged prosecutorial misconduct. During

closing argument, the prosecutor said:

Mr. Gainey's residence was a drug den. He had the spoons. He
 had the needles. He had the cut. He had the heroin around
his neck, and he had the weapons. These are all tools of the
drug trade.

Ladies and Gentlemen, we live here in South Florida and we are
very familiar with it by now.

The majority takes the position that, because of defense

counsel's objection and the trial court's curative instruction, the

comment constituted harmless error.1 Nevertheless, the majority

discusses at some length its conclusion that the last sentence was

"objectionable and improper." See Op. at ---- - ----. I believe

that this case, in which the majority concludes that at worst there

was harmless error, does not provide the appropriate vehicle for

the majority's discussion of the subject.

More importantly, however, I do not consider the challenged

sentence to have been improper—even absent a cautionary

instruction. Initially, it is my opinion that the majority

misinterprets the prosecutor's comment. The majority concludes

that the above-quoted language somehow "draws upon widespread

community fears about drugs, and implies that those fears can or

should inform the process of assessing Gainey's guilt," and warns

that "[a] jury cannot appropriately reason that a particular

defendant is guilty based on media reports of rampant drug use

coupled with the fact that the defendant is accused of a drug

crime." Op. at ----. Thus, the majority interprets the phrase "we

1
The majority conveys the impression that the government
concedes there was error, but contends that it was harmless.
That is not the case. The government first defended the comment
as "an attempt to have the jury draw on their common experience,"
and then took the fall back position that in any event the trial
judge did not abuse his discretion in denying the motion for a
new trial because of the limiting instruction that was given.
The term "harmless error" is not in the government's brief.
are very familiar with it" somehow to refer in an improperly
2
inflammatory way to the societal problem of rampant drug use.
However, the antecedent of the word "it" is the prior reference to

the specific evidence introduced in the case—the spoons, needles,

heroin, and weapons—which the prosecutor appropriately discussed in

order to draw upon the jurors' "common knowledge, observations and
3
experiences in the affairs of life." United States v. Cruz-

Valdez, 773 F.2d 1541, 1546 (11th Cir.1985) (citations omitted),

cert. denied, 475 U.S. 1049, 106 S.Ct. 1272, 89 L.Ed.2d 580 (1986).

As the majority observes, "jurors may use "common sense,' derived

from the repetitive pattern of human behavior and experiences

common to all of us." Op. at ----. The prosecutor appropriately

could call upon this common knowledge (i.e., that spoons, needles,

heroin, and weapons are well known as tools of the drug trade) in

making her case against the possessor of those objects.

Moreover, even if the majority's interpretation were correct,

this Court has held that " "[r]eferences during closing argument to

the drug problems of society and defendants' roles in such problems

are not unduly prejudicial or excessively inflammatory.' " United

States v. Delgado, 56 F.3d 1357, 1370 (11th Cir.) (quoting United

States v. Zielie, 734 F.2d 1447, 1461 (11th Cir.1984), cert.

denied, 469 U.S. 1189, 105 S.Ct. 957, 83 L.Ed.2d 964 (1985)), cert.

2
The prosecutor's observation that "we live here in South
Florida" is both factual and unobjectionable.
3
Assuming jurors to be without backgrounds including
personal drug use or dealing, much of their "personal knowledge"
is likely to be media-based. There is nothing wrong with that;
the vast majority of what we know is learned other than by direct
personal experience.
denied, --- U.S. ----, 116 S.Ct. 404, 133 L.Ed.2d 323 (1995); see

also United States v. Metz, 608 F.2d 147, 158 (5th Cir.1979), cert.

denied, 449 U.S. 821, 101 S.Ct. 80, 66 L.Ed.2d 24 (1980).

Accordingly, I conclude that the prosecutor's comment, which

manifestly was not improperly inflammatory, was not

"inappropriate."4

4
Assuredly I do not fault the trial judge's
spur-of-the-moment decision to give a cautionary instruction,
although the substance thereof was fully covered in the overall
instructions to the jury. Often 'tis better to be safe than
sorry, as the majority's treatment of the subject confirms.