FILED
United States Court of Appeals
Tenth Circuit
September 3, 2008
PUBLISH Elisabeth A. Shumaker
Clerk of Court
UNITED STATES COURT OF APPEALS
FOR THE TENTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v. No. 07-6169
RONNIE KASHAWN DODDLES,
a.k.a. Phatt Man,
Defendant-Appellant.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF OKLAHOMA
(D.C. No. 06–CR–136–M)
Randal D. Morley, Birmingham, Morley, Weatherford & Priore, P.A., Tulsa,
Oklahoma, for Defendant-Appellant.
Jonathon E. Boatman, Assistant United States Attorney (John C. Richter, United
States Attorney, and Sanford C. Coats, Assistant United States Attorney, with him
on the brief), Oklahoma City, Oklahoma, for Plaintiff-Appellee.
Before O’BRIEN and McKAY, Circuit Judges, and BRIMMER, * District Judge.
McKAY, Circuit Judge.
Defendant was convicted of one count of conspiracy to possess with intent
*
The Honorable Clarence A. Brimmer, District Judge, United States
District Court for the District of Wyoming, sitting by designation.
to distribute cocaine base, cocaine, marijuana, and ecstasy; one count of
possessing ecstacy with intent to distribute; one count of possessing cocaine base,
cocaine, and marijuana with intent to distribute; and five firearm possession
counts. He was sentenced to a 480-month term of imprisonment. On appeal, he
argues that two of the counts of conviction were not supported by sufficient
evidence and that the prosecutor elicited prejudicial testimony that deprived him
of his right to a fair trial.
According to the evidence introduced at trial, Defendant was a member of a
gang known as the Playboy Gangster Crips, which dealt drugs from June 2004 to
July 2005 out of a house in Oklahoma City rented by gang member Michael
Maytubby and his girlfriend. Witnesses testified that Defendant and other gang
members used and sold drugs at the residence, warned neighbors not to contact
the police, regularly carried guns, and engaged in a violent shootout with a rival
gang on the street in front of the residence. Searches of the residence on October
17, 2004, and July 6, 2005, uncovered cash, firearms, ammunition, and various
types of drugs.
Defendant challenges the sufficiency of the evidence supporting his
convictions for possessing ecstacy with intent to distribute on October 17, 2004,
and possessing a firearm in furtherance of a drug-trafficking crime on July 6,
2005. We review this issue de novo to determine whether, “viewing the evidence
in the light most favorable to the prosecution, any rational trier of fact could have
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found the essential elements of the crime[s] beyond a reasonable doubt.” United
States v. McPhilomy, 270 F.3d 1302, 1307 (10th Cir. 2001) (internal quotation
marks omitted). In so doing, we resolve any possible conflicts in the evidence in
favor of the government and assume that the jury found that evidence credible.
United States v. Williamson, 53 F.3d 1500, 1516 (10th Cir. 1995).
The ecstasy possession count was based on twenty ecstasy pills found in a
rifle case in Mr. Maytubby’s bedroom closet on October 17, 2004, the night of the
gang shootout. To establish that Defendant constructively possessed this ecstasy,
the government was required to show “some nexus, link, or other connection
between [Defendant] and the contraband.” See United States v. Reece, 86 F.3d
994, 996 (10th Cir. 1996). The government could establish that nexus by
presenting “some evidence supporting at least a plausible inference that
[Defendant] had knowledge of and access to” the ecstasy. United States v.
McKissick, 204 F.3d 1282, 1291 (10th Cir. 2000) (internal quotation marks
omitted).
The government presented evidence that Defendant was present and
involved in the shootout. One neighbor testified that he saw Defendant and other
gang members come out of the house and exchange gunfire with people on the
street, who were, according to an investigating officer’s testimony, members of a
rival gang. When the police arrived at the residence shortly after the shooting
stopped, they found Defendant and two other gang members pretending to be
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asleep inside. The government also presented substantial evidence regarding
Defendant’s participation in the gang’s ongoing drug-trafficking activities,
including direct testimony that Mr. Maytubby sometimes left Defendant in charge
of drug sales at the residence when he went out. The jury heard testimony that
Defendant had full access to Mr. Maytubby’s bedroom and that he sometimes
went into this room to retrieve crack cocaine for sale. The jury further heard
testimony that the ecstasy pills were located in the same unlocked container as a
set of digital scales bearing cocaine residue. An expert witness testified that it
would not be unusual for the leader of a drug-trafficking gang to keep the drugs
in his bedroom and provide smaller quantities of drugs to other members of the
gang as needed for sales.
Taken in the light most favorable to the government, we conclude that the
evidence supported a reasonable inference that Defendant had knowledge of and
access to the ecstasy at issue. See McKissick, 204 F.3d at 1298. We further
conclude, based on the testimony that twenty pills is a distributable quantity and
that individual users will not usually own this many pills at one time, that the
government introduced sufficient evidence to satisfy the intent element of the
crime. See id. at 1298-99. We thus sustain Defendant’s conviction as to this
count.
The contested firearm possession count stemmed from the July 6, 2005
discovery of four firearms in Mr. Maytubby’s bedroom and one firearm in a
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vehicle outside the house. The July 6 search also uncovered hundreds of rounds
of ammunition, a small vial of what appeared to be PCP, numerous individual
baggies and one large block of marijuana, a significant amount of cocaine
powder, a large quantity of crack cocaine, four sets of digital scales, and over
$4000 in cash, which was placed in a drawer in a manner suggesting that various
amounts had been collected during different transactions. Crack cocaine,
marijuana, and one set of digital scales were located in plain sight on the kitchen
table, and an officer testified that it appeared that the marijuana seeds and stems
were being separated out in preparation for sale. Defendant and several other
gang members had been present in the house just prior to the search.
In contesting the sufficiency of the evidence as to this count, Defendant
points out that no one testified to seeing him with a firearm on July 6 and that no
firearms were found in the room he was in, nor was he carrying a firearm at the
time of the search. However, one regular visitor to the house testified that
Defendant carried a gun with him when he went outside but that he did not
usually carry a gun around the house. Another witness testified that Defendant’s
gun was “[l]ike an American Express card . . . he wouldn’t leave home without
it.” (Tr. at 172.) Witnesses also testified to seeing Defendant with various types
of guns on different occasions. In addition, one witness testified that he
frequently saw guns laying around the house. Moreover, the jury heard expert
testimony that members of drug-distributing gangs may make their guns available
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to other gang members who need them and may keep a stash of guns in a central
location for communal access. Four of the firearms at issue in this count were
found in easily accessible locations in Mr. Maytubby’s bedroom, which
Defendant had full access to. Indeed, one firearm was located in the very drawer
from which Defendant had obtained drugs for purchase on other occasions, next
to a substantial quantity of marijuana and a large amount of cash. We thus
conclude that the government introduced sufficient evidence to “support[] at least
a plausible inference that [Defendant] had knowledge of and access to the
weapon[s].” United States v. Taylor, 113 F.3d 1136, 1145 (10th Cir. 1997).
We likewise reject Defendant’s contention that the government introduced
insufficient evidence to support a conclusion that the firearms were possessed in
furtherance of a drug-trafficking crime. Given the close proximity of the firearms
to drugs and drug proceeds, the evidence that Defendant and other gang members
routinely carried guns during the course of the conspiracy, the evidence that
Defendant and others used firearms to fight a rival gang, and the expert testimony
that the firearms and ammunition found in the bedroom were consistent with
drug-related gang activity, we conclude that the government introduced ample
evidence to support this element of the crime. We thus reject Defendant’s
sufficiency challenge to his conviction on this count.
Defendant also objects to certain testimony elicited by the government at
trial. First, Defendant objects to the government’s elicitation of testimony that
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witnesses were threatened by gang members and feared retaliation for testifying at
Defendant’s trial. Second, he objects to the mischaracterization of two of his
state misdemeanor convictions as felonies. Because Defendant did not raise these
objections at trial, we review only for plain error. United States v. Hooks, 780
F.2d 1526, 1535 (10th Cir. 1986). Thus, we will not reverse unless Defendant
shows the occurrence of an error that was plain, that affected his substantial
rights, and that “seriously affect[ed] the fairness, integrity, or public reputation of
judicial proceedings.” Johnson v. United States, 520 U.S. 461, 467 (1997)
(internal quotation marks omitted).
The government elicited information from various witnesses regarding
threats made by gang members both during the course of the conspiracy and after
the conspiracy had ended. Defendant objects to testimony regarding post-
conspiracy threats and witnesses’ fear of retaliation, specifically: (1) a witness’s
testimony that he initially lied to the grand jury because he was scared he would
have to testify against the gang members, who might then retaliate against him
while he was in jail, (2) this witness’s affirmative response to the prosecutor’s
query whether he currently was scared and feared retaliation, (3) a second
witness’s statement that he did not want to testify at this trial because he was
afraid of the outcome after he left the courthouse, (4) a third witness’s description
of a beating he received from another gang member for testifying at Mr.
Maytubby’s trial, and (5) this witness’s statement that he would have avoided
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testifying against Defendant if he could have. Defendant also objects to the
prosecutor’s allusion to the last witness’s testimony in asking an expert witness
whether “a whiskey bottle to the face, giving you 15 stitches in your face,” would
send a message to a witness not to testify at trial. (Tr. at 793.)
We conclude that any error in the prosecution’s elicitation of the objected-
to evidence was not plain and did not affect Defendant’s substantial rights. First,
we hold that the government properly elicited testimony regarding the first
witness’s fear of retaliation to explain his prior inconsistent statements. See
United States v. Rutledge, 40 F.3d 879, 885 (7th Cir. 1994), rev’d on other
grounds, 517 U.S. 292 (1996) (holding that trial court did not abuse discretion by
admitting testimony of threats because this was “highly probative evidence
explaining [the witness’s] prior inconsistent statement”). As for the third
witness’s testimony, we note that the objected-to testimony was elicited on
redirect examination after defense counsel engaged in a lengthy attempt to
impugn the witness’s credibility, suggesting that the witness would testify to
whatever he thought would keep him out of trouble. Evidence that the witness
had experienced negative consequences for providing similar testimony at a
previous trial and that he was reluctant to testify at Defendant’s trial was relevant
to rebut defense counsel’s suggestion that his testimony was dependent on
whatever he thought would provide him with the most benefit. See United States
v. Santiago, 46 F.3d 885, 891-92 (9th Cir. 1995) (holding that testimony relating
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to witnesses’ fear of retaliation was “permissible as a response to [defense
counsel’s] prior attempt to impugn their credibility” by arguing that they would
lie to gain advantage for themselves). We also see no error in the prosecution’s
brief reference to this testimony during the expert witness’s redirect examination,
after defense counsel raised the issue of threats and witness retaliation on cross
examination. As for the testimony of all of the witnesses that they were
frightened to testify at Defendant’s trial, based on the relatively limited nature of
this testimony and the extensive admissible evidence presented to the jury
regarding threats and violent behavior by Defendant and other gang members
during the course of the conspiracy, we conclude that any error in the introduction
of this testimony did not affect Defendant’s substantial rights. 1
Finally, Defendant objects to two related references to his prior state
1
We reject Defendant’s suggestion that we must find that his right to a fair
trial was prejudiced based on a juror’s stated concerns about Defendant having
access to the jury list and the juror’s related allusion to testimony about
“significant repercussions.” (Tr. at 858.) The court conducted a colloquy with
this juror, in which the juror indicated that his concern was partly spurred by a
question his wife, an avid Court TV watcher, had asked him in general about
security precautions in federal cases. The juror further stated that he did not
believe his impartiality had been affected by his concerns, that he had tried very
hard not to form any opinions at this point in the case and did not believe he had,
and that he was satisfied with the court’s decision to shred the jury list. The
district court was “comfortable with [the juror’s] candor.” (Tr. at 862.) Giving
due deference to the juror’s declaration of impartiality and the court’s credibility
determination that this declaration was sincere, see United States v. Black, 369
F.3d 1171, 1176 (10th Cir. 2004), we find no prejudice to Defendant’s rights
based on this incident.
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misdemeanor convictions as felonies. 2 First, the prosecution asked an expert
witness a hypothetical question regarding the “likelihood of someone pleading
guilty to three drug felonies, if they’re not in fact guilty of those felonies.” (Tr.
at 793.) A few minutes later, the government’s next witness, a federal agent,
correctly testified that Defendant pled guilty to state charges of possession of
cocaine, marijuana, and drug paraphernalia on July 6, 2005, but then incorrectly
stated that all three counts were felonies. However, defense counsel thoroughly
questioned the agent regarding this error during cross examination, and the agent
admitted she was unfamiliar with Oklahoma state law. She agreed with defense
counsel that the drug paraphernalia count was in fact a misdemeanor and
indicated that the marijuana count might be as well. “Where evidence refuting a
false statement is revealed in cross-examination, the government cannot be said to
have relied on the false direct-examination testimony to obtain a guilty verdict.”
United States v. Crockett, 435 F.3d 1305, 1317 (10th Cir. 2006). Based on the
agent’s admissions during cross examination, we conclude that the earlier
erroneous characterization of Defendant’s misdemeanor convictions as felonies
did not affect his substantial rights or undermine the fundamental fairness of his
trial.
Therefore, we AFFIRM Defendant’s conviction and sentence.
2
Defendant does not object to the introduction of evidence of these prior
convictions but only objects to their mischaracterization as felonies.
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