United States v. Jenkins

F I L E D
United States Court of Appeals
Tenth Circuit
PUBLISH
NOV 22 2002
UNITED STATES COURT OF APPEALS
PATRICK FISHER
Clerk
TENTH CIRCUIT

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

v. No. 01-1412

WALTER JAMES JENKINS,

Defendant - Appellant.

Appeal from the United States District Court
for the District of Colorado
(D.C. No. 99-CR-439-01-S)

Glen R. Anstine, Denver, Colorado, for Defendant-Appellant.

Robert Campbell Troyer, Assistant United States Attorney (John W. Suthers, United
States Attorney, with him on the brief), Denver, Colorado, for Plaintiff-Appellee.

Before LUCERO and ANDERSON, Circuit Judges, and BROWN,* District Judge.

BROWN, District Judge.

*
The Honorable Wesley E. Brown, United States Senior District Judge for the
District of Kansas, sitting by designation.
 Appellant Walter Jenkins was found guilty by a jury on charges of conspiracy to

distribute more than 50 grams of crack cocaine (21 U.S.C. § 846); possession with intent

to distribute more than 50 grams of crack cocaine (21 U.S.C. § 841(a)(1)); using or

carrying a firearm during and in relation to a drug trafficking crime (18 U.S.C. §

924(c)(1)); and possession of firearms in furtherance of a drug trafficking crime (18

U.S.C. § 924(c)(1)(C)(i)). He was sentenced by the district court to a total of 720

months’ imprisonment. In this direct appeal, appellant argues that the trial court erred in

several of its rulings, including in its denial of his motion to suppress evidence and his

motion to dismiss one of the § 924(c) counts.

I.

On October 28, 1999, Detective Mike Yeater of the Colorado Springs Police

Department received a phone call from an individual who said he wanted to provide

information about defendant Walter Jenkins’ alleged involvement in drug trafficking,

unlawful firearms possession, and other criminal activity. The informant said he wanted

to remain anonymous because he feared Jenkins, but he agreed to meet with Detective

Yeater face-to-face and told Yeater to call him “Tony.” After receiving this call, Yeater

attempted to corroborate some of the general biographical information the caller provided

about the defendant. Over the course of the next three weeks, “Tony” telephoned Yeater

several times and met with him in person on at least two occasions. In the course of these

contacts, “Tony” provided more details about the defendant’s alleged involvement in

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narcotics trafficking. Among other things, “Tony” claimed he had known the defendant

for several months; that the defendant went by the name of “Smoke” and was a member

of the West Side Mafia Crips gang out of Pomona, California; that the defendant claimed

to have committed several drug and gang-related homicides in Pomona; that the

defendant obtained large quantities of cocaine in Pomona and transported it in the

headliner of his Chevrolet Suburban to Colorado Springs for distribution; that the

defendant had been in Pomona about a month earlier and had obtained approximately one

pound of cocaine; that “Tony” had seen Jenkins with this pound of cocaine at the

defendant’s residence and helped the defendant cut and package it for sale; that “Tony”

had been present when the defendant received calls on his cellular phone requesting

cocaine and had seen the defendant send his live-in girlfriend Yolanda or “Londa” to the

bedroom of their residence to obtain the requested amount of cocaine, which the

defendant would then deliver to the customer at a nearby parking lot; that “Tony” had

been present when an individual brought approximately $10,000 in cash to the

defendant’s residence as payment for previously purchased cocaine; that the defendant

informed “Tony” about numerous firearms he owned and said he always carries a cheap

.9 mm handgun on his person or within close reach; that “Tony” had seen the defendant in

possession of various firearms; that the defendant told “Tony” he kept part of his guns

and cocaine at a nearby rented storage facility and he kept the rest at his residence; that

the defendant associated with an individual known as “Dog” whom Tony had recently

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seen purchase a handgun from the defendant; and that the defendant had recently been

involved in a domestic dispute with his girlfriend Londa in which he had been arrested.

Yeater attempted to corroborate as much of the information as he could, and on

November 30, 1999, he put the information he had gathered into an affidavit and

presented it to an El Paso County Court judge in applications for warrants to search the

defendant’s residence, including vehicles associated to the property, and the defendant’s

nearby storage rental unit. The judge issued the warrants.

On the morning of December 1, 1999, a team of officers gathered to execute the

warrants. Officers conducting surveillance of the defendant’s house saw the defendant

and his girlfriend, Yolanda Jefferson, leave the house and get into the defendant’s Chevy

Suburban and leave the premises. An officer tailing the Suburban saw it go through the

drive-through lane of a nearby McDonald’s restaurant and then head back towards the

residence. Acting upon orders from a supervisor, the officer stopped the Suburban when

it was about three-quarters of a mile away from the defendant’s house. Officers searched

the car and found a .9 mm semi-automatic handgun and ammunition in a console in the

front seat. The defendant was arrested. He had $800 cash in his pockets at the time of his

arrest. The police allowed Ms. Jefferson to drive the car back to the residence, where it

was impounded. (At a later date, an inventory search of the Suburban revealed crack

cocaine hidden in a bowling ball bag inside the car.)

Meanwhile, officers at the defendant’s residence searched and found about 40

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grams of crack cocaine, digital scales, and $11,000 in currency inside the house. A .45

caliber semi-automatic handgun with a loaded magazine was found in a station wagon on

the premises. At the nearby storage unit used by the defendant, officers discovered a

Jaguar automobile parked inside. Upon searching they found a backpack in the front seat

with 292 grams of crack cocaine and approximately $15,000, and behind the front

passenger seat they found four firearms and hundreds of rounds of ammunition. Another

gun and some ammunition were located in a box next to the car. The officers also found

several photographs of the defendant and other individuals posing with guns and large

amounts of cash.

The defendant was charged in a four-count superseding indictment, and Yolanda

Jefferson was named as a co-defendant in three of the counts. The defendant filed a

motion to suppress evidence, which was denied by the district court. An eight-day joint

trial of Jenkins and Jefferson ensued. At trial, the originally anonymous informant, Tony

Tanniehill, testified about how he became acquainted with the defendant in 1999 and how

in the months prior to Jenkins’ arrest he agreed to sell crack cocaine for the defendant.

He testified at length about the defendant’s drug trafficking and possession of firearms.

Other individuals also testified about their purchases of crack cocaine from the defendant

and/or about their observations of the defendant engaging in the drug trade. The

Government presented certain other witnesses, such as the manager of a motel near

Pomona, California, who testified that records indicated the defendant had stayed at the

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motel on September 27-30, 1999, and the Government also introduced the evidence

seized from the defendant’s house, cars, and storage unit. As indicated above, the jury

convicted the defendant on all four counts of the superseding indictment.

II.

Jenkins’ first contention is that the affidavit submitted in support of the search

warrants failed to establish probable cause because Detective Yeater did not

independently corroborate the informant’s allegations of criminal activity. Appellant

contends the officer merely corroborated innocent facts – such as the defendant’s address

and the types of cars he owned -- and he argues that such facts alone were not enough for

probable cause. Citing, inter alia, Florida v. J.L., 529 U.S. 266 (2000). He argues that the

evidence obtained with the warrants should have been suppressed. In response, the

government contends that various factors demonstrated the reliability of the informant’s

allegations such that a finding of probable cause was warranted.

A magistrate’s task in determining whether probable cause exists “is simply to

make a practical, common-sense decision whether, given all the circumstances set forth in

the affidavit ..., including the ‘veracity’ and ‘basis of knowledge’ of persons supplying

hearsay information, there is a fair probability that contraband or evidence of a crime will

be found in a particular place.” Illinois v. Gates, 462 U.S. 213, 238 (1983). Although an

anonymous tip alone seldom demonstrates an informant’s basis of knowledge or veracity,

there are situations where such a tip, suitably corroborated, will suffice. Alabama v.

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White, 496 U.S. 325, 327-29 (1990) (discussing whether anonymous tip was sufficient for

investigatory stop); United States v. Danhauer, 229 F.3d 1002, 1006 (10th Cir. 2000)

(“When there is sufficient independent corroboration of an informant’s information, there

is no need to establish the veracity of the informant.”) In Florida v. J.L., supra, the

Supreme Court found that an anonymous tip to police that a particular person on a street

corner was carrying a gun, without more, was not sufficient to justify an officer’s stop

and frisk of that person. The Court said an anonymous tip must have some indicia of

reliability in its assertion of illegal activity, not just in its tendency to describe or identify

a specific person, if it is to provide reasonable suspicion for a Terry stop. The same

principle has been applied by this court in cases decided since J.L. See, e.g., United

States v. Tuter, 240 F.3d 1292 (10th Cir. 2001) and United States v. Danhauer, 229 F.3d

1002 (10th Cir. 2000).

We conclude that the informant’s allegations in this case bore sufficient indicia of

reliability such that, when considered with the other information supplied by the officer,

the affidavit was sufficient to permit a finding of probable cause. To begin with,

although the informant declined to give his last name, the circumstances of his repeated

discussions with the police – including at least two face-to-face meetings1 – were such

1
The Government asserts that at least four of the meetings between Tanniehill and
Yeater were face-to-face. It cites Yeater’s testimony at trial as support for this assertion.
See Vol. 14 at 201-04. As appellant correctly points out, however, the determination of
probable cause must be made from the facts in the affidavit, not from the evidence
(continued...)

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that they “place[d] his anonymity at risk.” Cf. J.L., 529 U.S. at 276 (Kennedy, J.,

concurring). A reasonable person in such circumstances would realize that in all

likelihood the police could, if they so chose, determine the person’s identity, and could

hold him responsible if his allegations turned out to be fabricated. Cf. id. at 270 (citing

Adams v. Williams, 407 U.S. 143 (1972)). This provides a disincentive for making false

allegations and “[a] court can consider this factor in weighing the reliability of the tip.”

Id. at 276 (Kennedy, J., concurring). See also United States v. Valentine, 232 F.3d 350,

354-55 (3rd Cir. 2000) (listing cases saying an informant’s face-to-face tip is more reliable

than an anonymous telephone call). Another relevant factor is that the informant claimed

to have personally witnessed the defendant’s drug transactions and provided a detailed

description of how those transactions were carried out by the defendant and his girlfriend.

In fact, the informant admitted to having assisted the defendant in preparing drugs for

distribution. Cf. Gates, 462 U.S. at 234 (an informant's explicit and detailed description

1
(...continued)
presented at trial.
Detective Yeater’s affidavit was ambiguous as to whether most of his “contacts”
with Tanniehill were conducted over the telephone or in face-to-face meetings. The
affidavit, which frequently referred to Tanniehill as “the caller,” stated that Yeater had
“four contacts with the caller since October 28, 1999.” A review of the entire affidavit
shows that at least two of the officer’s “contacts” involved face-to-face meetings. The
affidavit recounts that “[o]n October 28, 1999 the caller agreed to meet with Detective
Yeater and Detective Terry Bjorndahl” and that “[w]hen the detectives met the caller, the
caller still refused to give his/her name....” At a later point the affidavit states that
“Detective Yeater later showed the caller numerous photos,” and that the caller identified
the individual he knew as “Dog.” Vol. 1, Doc. 48 at 000336-37.

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of alleged wrongdoing, along with a statement that the event was observed first-hand,

entitles the tip to greater weight than might otherwise be the case). See also United States

v. Allen, 297 F.3d 790, 795 (8th Cir. 2002) (informant’s statements against his own penal

interest add to reliability); United States v. Sturmoski, 971 F.2d 452, 457 (10th Cir. 1992)

(same).

As appellant points out, Detective Yeater confirmed certain general information

provided by the informant, such as the location of the defendant’s residence and the types

of cars he drove. Corroboration of these facts alone is clearly insufficient for probable

cause or even reasonable suspicion. See United States v. Tuter, 240 F.3d 1292, 1297 (10th

Cir. 2001) (“Almost anyone can describe the residents of, and vehicles at, a particular

home without having any special knowledge of what goes on inside the home.”) But the

extensive affidavit submitted by the officer in this case contained much more. It included

details indicating that “Tony” in fact had a relationship with the defendant, as shown by

“Tony’s” accurate assertions that the defendant had a birthday in September and had just

turned 40 years old, that he had a storage rental unit near his residence, and that he had

recently been arrested on a domestic violence charge. In addition, Detective Yeater

independently obtained information suggestive of the defendant’s involvement in drug

and gun possession that was consistent with the allegations of criminal activity made by

the informant. For example, Yeater stated in his affidavit that a detective in the Pomona

California Police Department had been contacted and confirmed that the defendant was a

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member of the Pomona West Side Mafia Crips gang who went by the name of “Smoke.”

According to Yeater’s affidavit, “Tony” had identified a photograph of an associate of

the defendant’s (known only as “Dog”) for Detective Yeater. Yeater’s independent

investigation showed that the individual’s real name was Dwight Herrera, that he in fact

went by the alias of “Dog,” and that he too was a confirmed member of the Pomona West

Side Mafia Crips. Yeater was informed by Colorado Springs homicide detective Terry

Bjorndahl that Dwight Herrera had recently been seen in Pomona, California, together

with his brother, who was wanted for first degree murder in El Paso County, Colorado.

Yeater’s affidavit recounts various information he obtained from other detectives relating

to the defendant and to Dwight Herrera. Yeater was informed by Detective Brett Speirs

of the Colorado Springs Police Department that he had received an anonymous tip in

early January 1998 from a source in Denver who said Dwight Herrera was supplying

cocaine he had obtained from Pomona, California, and that a black male named Walter

Jenkins, also known as “Smoke Dog,” had been Herrera’s boss in the drug trade but there

was now a turf battle over who was in charge of distribution of crack on the east side of

Colorado Springs. Also, according to Yeater’s affidavit, Jenkins and a man named Eric

Amos had been stopped in California in January of 1998 with approximately $30,000

cash in their possession. Detective Speirs told Yeater that during a 1998 drug

investigation, he was staking out an apartment building in Colorado Springs when he

observed two males sitting in a car at the apartments for an extended period. Police

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contacted the two men and identified them as Walter Jenkins and Eric Amos. Yeater’s

affidavit further recounted that another Colorado Springs Police Detective, Tom Carle,

informed him of an anonymous tip Carle received in July of 1999 that Dwight Herrera

was dealing crack cocaine obtained from his California gang member friends, that

Herrera usually traveled to California with “Smoky Jenkins” and “Lionel Amos,” and that

Herrera and “Smoky” got their cocaine from the same source but had separate drug

distribution businesses in Colorado Springs. As for “Tony’s” claims relating to the

defendant’s possession of firearms, Yeater was informed by an agent of the Bureau of

Alcohol, Tobacco & Firearms that records showed the defendant had purchased two

Intratec Tec-9 semi-automatic handguns in 1988. Additionally, Yeater determined from

police reports that during the defendant’s recent domestic violence arrest, Jenkins had

been pursued by the police and had thrown two loaded firearms out of his car window,

including a .9 mm handgun. Yeater was also informed by another Colorado Springs

detective that the defendant had thirty-four prior arrests in California, including numerous

felony arrests for firearm violations, although he had only been convicted of

misdemeanors.

Unlike J.L., Danhauer and Tuter, the informant in this case risked his anonymity

by repeatedly meeting with or talking to the police, he provided a detailed account of the

defendant’s alleged criminal activities and explained how he observed those activities

first-hand, and he made statements incriminating himself in the criminal activity.

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Additionally, the police obtained independent information tending to support the details

of the informant’s allegations of criminal activity, including several details tending to

suggest that the defendant was engaged in drug trafficking and gun possession. This is

true notwithstanding that some of the information in the affidavit came from other

anonymous sources. Cf. United States v. Sturmoski, 971 F.2d 452, 457 (10th Cir. 1992)

(second informant’s tip helped to corroborate information from first informant). No

single factor here is conclusive, but “the informant’s story and the surrounding facts

possessed an internal coherence that gave weight to the whole.” See Massachusetts v.

Upton, 466 U.S. 727, 734 (1984). Taken as a whole, the information in the affidavit

suggested that “Tony’s” allegations of criminal activity were reliable, and it provided a

substantial basis for the judge’s finding of probable cause. See Gates, 462 U.S. at 243

n.13 ("probable cause requires only a probability or substantial chance of criminal

activity, not an actual showing of such activity"). Accordingly, we reject appellant’s

claim that the search warrants were invalid.

Appellant next challenges the district court’s finding that the search of the

defendant’s Chevy Suburban on the morning of December 1, 1999, was authorized by the

search warrant pertaining to the defendant’s residence. That warrant granted officers

authority to enter and search “the residence at 5555 Trout Creek Pass Drive in Colorado,

Springs, ... to include any outbuildings and vehicles associated to said property.”

Appellant argues that because the Suburban was not at the residence when it was searched

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on December 1, it was not “associated to said property” and was outside the scope of the

warrant. The district court rejected this argument, concluding that the vehicle “does not

become ... disassociated with the property by virtue of the fact that the owner takes it

down to the corner to buy a hamburger and then starts back toward the property,...” Vol.

7 at 39.

The facts of this case present a novel question concerning the appropriate scope of

the search warrant, but we need not address that issue. We conclude that the officers’

search of the Suburban on December 1 was lawful because there was probable cause to

believe the vehicle contained evidence of a crime. As such, the search was valid under

the “auto exception” to the warrant requirement. See Carroll v. United States, 267 U.S.

132, 151 (1925) (recognizing exception to warrant requirement for automobiles). We

noted above that Detective Yeater’s affidavit was sufficient to show probable cause that

the defendant was engaged in cocaine trafficking and unlawful possession of firearms.

As noted by the search warrant, evidence of such crimes would include illicit drugs,

firearms, items showing occupancy for 5555 Trout Creek Pass Drive, and receipts

showing expenses for trips to California. Based on the facts known to officers on

December 1, there was a fair probability that such items would be found in the

defendant’s Suburban. In addition to all of the foregoing information, the police were

aware of the informant’s reports that the defendant transported cocaine from California in

the headliner of the Suburban, that he possessed cocaine in the Suburban just before his

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arrest for domestic violence, and that he always carried a .9 mm handgun on or near him.

Officers were also aware that the defendant had been in possession of loaded firearms in

a vehicle just before his recent arrest for domestic violence. Under the totality of the

circumstances, the police were aware of facts establishing a fair probability that evidence

of the defendant’s drug trafficking or unlawful firearms possession would be found in the

Suburban. The search was therefore reasonable under the Fourth Amendment.2

III.

Appellant’s next contention is that the district court erred by denying his motion to

dismiss Count Three of the superseding indictment or his alternative request for a bill of

particulars on that count. In the district court, appellant argued that Counts Three and

Four covered the same criminal behavior and were therefore multiplicitous. Vol. 1, Doc.

70 at 2. Both of these counts charged a violation of 18 U.S.C. § 924(c). As an alternative

to dismissal, appellant argued that a bill of particulars was required because Count Three

failed to set forth sufficient facts to protect against double jeopardy. Vol. 1, Doc. 71 at 2.

Appellant’s multiplicity argument is not spelled out in great detail in his brief, but it

appears to be based on an assertion that Counts Three and Four were premised on the

same underlying drug trafficking crime.

Multiplicitous counts are separately charged counts that are based on the same

2
Our conclusions that the warrant was valid and the search of the Suburban was
reasonable render moot appellant’s arguments about the good faith doctrine of United
States v. Leon, 468 U.S. 897 (1984). See Aplt. Br. at 24.

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criminal behavior. United States v. McIntosh, 124 F.3d 1330, 1336 (10th Cir. 1997).

They are improper because they allow multiple punishments for a single criminal offense.

Id. Appellant’s multiplicity argument fails here because Counts Three and Four were not

based on the same criminal behavior. Count Three charged the defendant with using or

carrying a firearm in or about August 1999, during and in relation to the drug conspiracy

charged in Count One. Count Four, on the other hand, was based on defendant’s

possession of five firearms on December 1, 1999, in furtherance of the offense of

possession with intent to distribute crack cocaine charged in Count Two. See United

States v. Sturmoski, 971 F.2d 452, 461 (10th Cir. 1992) (consecutive sentences may be

imposed for multiple 924(c) counts if the offenses underlying each count do not constitute

a single offense for double jeopardy purposes). Even if the underlying drug crimes here

were related in the sense that drug possession was an object of the conspiracy, a

conspiracy to commit an offense and the actual commission of the offense are separate

crimes and may be punished separately. See United States v. Callwood, 66 F.3d 1110,

1115 (10th Cir. 1995); United States v. Johnson, 977 F.2d 1360, 1371 (10th Cir. 1992) ;

United States v. Abreu, 962 F.2d 1425, 1430 (10th Cir. 1992) (finding that conspiracy and

possession charges were separate offenses, and therefore separate drug trafficking crimes

within the meaning of § 924(c)), on reh’g, 962 F.2d 1447; vacated on other grounds, 508

U.S. 935 (1993); on remand, 997 F.2d 825. Accordingly, Counts Three and Four

charged separate offenses and were not multiplicitous.

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 The record surrounding defendant’s request for a bill of particulars further clarifies

this point, as it shows that the counts were not only based on separate predicate drug

offenses, but also involved different handguns and occurred several months apart. In

response to defendant’s argument that he could not determine the basis of Count Three

without a bill of particulars, the government disclosed at a pre-trial hearing that the

firearm described in Count Three had never been recovered and the charge was based on

the testimony of the informant, who would testify that he had seen the defendant in

possession of a “cheap 9-millimeter semi-automatic handgun” in August of 1999 when

the informant and the defendant distributed crack cocaine. Count Four, by contrast,

charged the defendant with possessing a Model 75 .9 mm handgun and other firearms on

December 1, 1999, when this firearm and others were found in the defendant’s storage

rental unit together with a stash of crack cocaine. At the pre-trial hearing, the government

further disclosed that the informant told police that the .9 mm handgun identified in

Count Four was not the same .9 mm handgun he had seen the defendant carry in August

of 1999. The informant’s testimony at trial was consistent with these representations.

Given this full disclosure before trial, and the absence of any showing of unfair surprise

at trial, we conclude that the district court did not err when it denied Mr. Jenkins’ motion

for a bill of particulars as to Count Three. See United States v. Sturmoski, 971 F.2d 452,

460 (10th Cir. 1992) (district court did not abuse its discretion in denying bill of

particulars where defendant received full discovery and showed no prejudice).

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 IV.

Appellant’s next contention is that the evidence was insufficient to support the

verdict on Count Four. As noted above, Count Four charged defendant with the unlawful

possession of firearms in furtherance of a drug trafficking crime, in violation of 18 U.S.C.

§ 924(c). Appellant concedes the evidence was sufficient to show that he had

constructive possession of the firearms described in Count Four, but argues there was no

evidence the firearms were used “in furtherance of” the possession with intent to

distribute crack cocaine.

The test for determining whether a jury’s finding of guilt is supported by the

evidence 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." See Jackson v. Virginia, 443 U.S. 307, 319 (1979). The "in

furtherance of" element of § 924(c) requires the government to show that possession of

the firearm furthered, promoted or advanced the drug trafficking crime. United States v.

Avery, 295 F.3d 1158, 1175 (10th Cir. 2002). Relevant factors include “the type of drug

activity being conducted, the accessibility of the firearm, the type of firearm, the legal

status of the firearm, whether the firearm is loaded, the proximity of the firearm to the

drugs or drug profits, and the time and circumstances under which the firearm is found."

United States v. Basham, 268 F.3d 1199, 1208 (10th Cir. 2001).

Under these standards, we conclude that the evidence was sufficient to support the

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verdict on Count Four. Four of the firearms listed in Count Four were found in the

passenger compartment of the car at the storage rental unit used by the defendant,

together with hundreds of rounds of ammunition of various types. Also found inside the

car were nearly 300 grams of crack cocaine and over $15,000 in cash. The ammunition in

the car included two high-capacity rifle magazines taped together, loaded with

approximately 30 rounds of ammunition of the type used in the SKS rifle listed in Count

Four. At least one of the firearms was loaded, and the evidence suggested an attempt had

been made to file off the serial number from one of the other guns. Vol. 14 at 371-74.

The defendant’s placement of guns and drugs at the same site was not unique to the

storage unit; the evidence showed that he also kept guns and drugs at his residence and in

his Chevy Suburban. In addition to the circumstances mentioned above, there was

testimony from several witnesses suggesting that the defendant always had a firearm

nearby when he conducted his drug business. Vol. 17 at 668-70; Vol. 18 at 33; Vol. 19

at 29-31. There was testimony that the defendant told Tony Tanniehill not to buy him

another gun because he already had so many. Vol. 17 at 670. One witness testified that

in the same room of the defendant’s house where crack cocaine was kept, the defendant

displayed various guns to him including a MAK 90 rifle, the same type of rifle described

in Count Four. Id. at 30-31. That same witness also testified that although he sometimes

stole to support his drug habit, he would not think of stealing from the defendant because

he was “afraid of getting shot.” Id. Taken as a whole, the evidence at trial would support

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a finding that the defendant possessed the firearms listed in Count Four for the purpose of

protecting his cocaine supplies and illicit drug proceeds, and that his possession of the

guns was in furtherance of his drug trafficking crime.

V.

Appellant’s final argument is that the trial court erred by admitting into evidence

photographs of Mr. Jenkins and others holding firearms and large amounts of cash.

These photographs were found by the police inside Mr. Jenkins’ storage rental unit.

Appellant argues the photos were irrelevant and should have been excluded because of

the danger of unfair prejudice.

We review questions concerning the admission of evidence under an abuse of

discretion standard. Under that standard, we will not disturb an evidentiary ruling absent

a distinct showing that it was based on a clearly erroneous finding of fact or an erroneous

conclusion of law or manifests a clear error in judgment. United States v. Mitchell, 113

F.3d 1528, 1531 (10th Cir. 1997) (quoting Cartier v. Jackson, 59 F.3d 1046, 1048 (10th

Cir. 1995)).

We find no abuse of discretion in the trial court’s decision to admit these

photographs. Contrary to appellant’s suggestion, the photos were relevant to numerous

issues at trial. They served to corroborate the testimony of various witnesses. The photos

of the defendant or Ms. Jefferson posing with guns and large amounts of cash would tend

to support the testimony of witnesses who said the defendants were engaged in the

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business of drug trafficking. As the Government points out, three of the photos

corroborated Tony Tanniehill’s testimony describing a specific firearm that he said the

defendant carried while distributing crack. Other photos served to corroborate the

testimony of witnesses who identified the defendant’s associates during this time. In sum,

the photos were relevant because they had a tendency to make more probable the

existence of facts that were of consequence in the trial. See Fed.R.Evid. 401. Even if we

were to conclude otherwise, however, the trial court’s decision to admit these photos

could not constitute a basis for reversal of the convictions. Given the plethora of cash,

firearms and drugs in the defendant’s possession on the date of his arrest –all of which

were properly admitted into evidence before the jury– any error in the admission of a few

photographs showing the defendant and his friends holding guns and cash was

undoubtedly harmless. See Fed.R.Crim.P. 52(a) (any error which does not affect

substantial rights shall be disregarded).

VI.

The judgment of the district court is AFFIRMED.

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