United States v. Draine

26 F.4th 1178

UNITED STATES of America, Plaintiff - Appellee,

v.Tiahmo Lenell DRAINE, Defendant - Appellant.

No. 20-6118

United States Court of Appeals, Tenth Circuit.

FILED March 1, 2022

Adam Mueller, Haddon, Morgan and Foreman, P.C., Denver, Colorado for Defendant - Appellant

Ashley L. Altshuler, Assistant United States Attorney (Robert J. Troester, Acting United States Attorney, with him on the brief), Oklahoma City, Oklahoma for Plaintiff - Appellee

Before MATHESON, PHILLIPS, and MORITZ, Circuit Judges.

MATHESON, Circuit Judge.

A jury convicted Tiahmo Lenell Draine of possession with intent to distribute heroin, possession of a firearm as a felon, and possession of a firearm in furtherance of a drug trafficking crime. On appeal, he argues that the district court

(A) plainly erred, in violation of Federal Rules of Evidence 701 and 702, by admitting testimony from law enforcement officers based on their specialized training and experience without sua sponte qualifying them as experts;

(B) plainly erred, in violation of Federal Rule of Evidence 704(b), by admitting opinion testimony about Mr. Draine's mental state—his intent to distribute heroin; and

(C) admitted a 911 call recording (i) without proper authentication, and (ii) in violation of the Confrontation Clause.

Exercising jurisdiction under 28 U.S.C. § 1291, we affirm.

I. BACKGROUND

A. Factual History

On July 3, 2019, shortly after midnight, a woman called 911. She told the operator she was driving on Lake Hefner Parkway. She said someone in a gray Chevy pickup truck had shot at her when she was in her car near a 7-Eleven. She further reported that the truck was following her.

Oklahoma City Police Sergeant Bryan Poole received the 911 dispatch while located a half mile from Lake Hefner Parkway. As Sergeant Poole sped toward the caller's location, he saw a truck matching the description. He followed the truck until it stopped in front of a house.

Mr. Draine opened the driver's side door of the truck and stepped out. He squatted in front of the truck as if he was "taking cover behind the vehicle." Suppl. ROA, Vol. I at 33. Sergeant Poole could see a passenger in the front seat of the truck. Mr. Draine ignored Sergeant Poole's commands to stop moving and put his hands up. Mr. Draine kept walking around the truck and then took off a backpack and put it inside the truck. After placing the backpack inside the truck, he became compliant.

After backup officers arrived to help Sergeant Poole detain Mr. Draine and his passenger, they discovered a gun underneath the truck behind the driver's side front tire, near where Mr. Draine had been squatting. When asked for identification, Mr. Draine told the officers it was inside his backpack. Sergeant Poole looked in the backpack and found a digital scale, 2.2 grams of heroin, two silicone disks, and three notebooks. One notebook was labeled "OWE $" and had a list of names, dates, and dollar amounts. Mr. Draine was arrested and then released on bond on July 6, 2019.

On July 29, 2019, Oklahoma City Police Sergeant Jonathan Wilson and Officer Blake Lawson stopped Mr. Draine and two passengers for a traffic violation. During a search of Mr. Draine's vehicle, Officer Lawson found a duffel bag that contained 9.5 grams of heroin, 3.64 grams of methamphetamine, 5.64 grams of marijuana, and $207 in cash wadded up and stuffed into different pockets. The officers also found a scale, some syringes, small Ziploc baggies, and a glass pipe inside the vehicle.

B. Procedural History

In October 2019, a federal grand jury indicted Mr. Draine on three counts for his conduct on July 3, 2019: Count 1 – possession with intent to distribute heroin, in violation of 21 U.S.C. § 841(a)(1) ; Count 2 – being a felon in possession of a firearm, in violation of 18 U.S.C. § 922(g)(1) ; and Count 3 – possession of a firearm in furtherance of a drug trafficking crime, in violation of 18 U.S.C. § 924(c)(1)(A). At trial, Mr. Draine contested only his intent to distribute, arguing he was not guilty of the greater offense charged in Count 1 (simple possession of heroin was a lesser included offense) or the Count 3 offense.

At trial, the Government called Sergeant Poole and Officer Lawson to testify.¹ The defense called one witness, Oklahoma City Police Officer David Pennington.²

1. Sergeant Poole's Testimony

On direct examination, the Government asked Sergeant Poole about his training and experience in his 12 years as a police officer. He confirmed the following facts:

• He was "typically ... involved in cases involving controlled substances."

• He had "become familiar with the substance known as heroin" and made roughly 12 heroin arrests.

• He "also received training in the academy" and had "spoken to peers that [he] work[ed] with as specialized training involving the distribution" of heroin.

• "[B]ased on" his "experience speaking with those individuals," he had "gained some familiarity with how" heroin "is sold at the street level," and "how it is packaged for sale."

• He was "familiar ... with the dosage units of" heroin.

Suppl. ROA, Vol. I at 22-23. The Government repeatedly invoked Sergeant Poole's training and experience. See id. at 45-52, 54, 72. We quote examples here:

GOVERNMENT : [B]ased on your training and experience, what is a typical dosage unit of heroin?

SERGEANT POOLE : Heroin, they sell in a couple different things. They sell big and smalls. Bigs are usually like .9 to one gram. They're usually 70, $80. They sell smalls, which are normally about half a gram. They go for 40 to 50. And then they'll sell just kind of single doses, which is normally, you know, .2 grams, those are normally 20, $25.

...

GOVERNMENT : So "Owe Money" with a list of names in it, what would that mean?

SERGEANT POOLE : People that owe him money.

GOVERNMENT : So people he fronted drugs to—

SERGEANT POOLE : Yes.

GOVERNMENT : [I]n your training and experience?

SERGEANT POOLE : Yes, sir.

...

GOVERNMENT : And how would the digital scale have any association or relation with possessing drugs for distribution?

SERGEANT POOLE : It would—basically, when you go to sell drugs, you'll weigh it for the person so they know they're getting what they're paying for and not getting ripped off, not getting half of what they're paying for or anything like that.

...

GOVERNMENT : And based on your training and experience, do you have an opinion regarding those [silicone] disks, if they're used at all for heroin?

SERGEANT POOLE : Yes, the top one, the multicolor one still had approximately .2 grams of heroin in it. The bottom one that's closed just had some residual brown residue that looked just like the residue on the scale.

GOVERNMENT : So placing heroin in those items, does that have any association with possessing with intent to distribute?

...

SERGEANT POOLE : If you're selling single doses, that's exactly what's in that top colored silicone disk.

Id. at 49-52, 54.³

2. Officer Lawson's Testimony

Officer Lawson testified about the July 29, 2019 traffic stop of Mr. Draine and finding cash and drugs in the vehicle. The court admitted the testimony under Federal Rule of Evidence 404(b) to show Mr. Draine's intent and knowledge of the charged conduct on July 3. When asked about his training and experience, Officer Lawson said he had made over 50 arrests for controlled substances and had consulted with officers in "a specialized unit that goes out and fights street level narcotic crimes." Id. at 120-21.

Officer Lawson testified that the $207 in cash he found "was throughout the whole [duffel] bag in different pockets and it was all wadded up, as if it was placed at different times just to get it in the bag." Id. at 121. The following exchange invoked his training and experience:

GOVERNMENT : The weights as you weighed the heroin, is that weight a large amount, based on your training and experience, or a small amount?

OFFICER LAWSON : A large amount.

GOVERNMENT : And is it an amount consistent, based on your training and experience, with distribution or sharing or personal use?

OFFICER LAWSON : It would be definitely [sic] a distribution. It would be used for distribution.

...

GOVERNMENT : [T]his digital scale, is that utilized in any way associated with drugs?

...

OFFICER LAWSON : To weigh whenever you're wanting to sell it so you're giving the correct amount for what the person buying the drugs, they're getting the right amount and they give you the right amount of money.

...

GOVERNMENT : Do[ ] [the three small Ziploc bags] have any significance, based on your training and experience, regarding drug sales—

...

OFFICER LAWSON : Commonly, when people are selling drugs, they have them split into those little small plastic baggies and that's where they're already preweighed and you can just give those and then take the money.

Id. at 122-25.

3. Officer Pennington's Testimony

Mr. Draine called Officer Pennington as a defense witness to impeach the credibility of the likely 911 caller, Brooklinn Nicole Brooks, by asking about her criminal record and drug arrests. Mr. Draine ostensibly also called Officer Pennington to show that Ms. Brooks was once arrested for having a similar amount of heroin compared to the amount he possessed on July 3, 2019, but was not charged with intent to distribute. Officer Pennington knew that Ms. Brooks had been arrested in September 2019 for having two bags of heroin weighing 3.65 grams (including packaging). When asked if she "was charged with a felony possession with intent" or "a misdemeanor simple possession of heroin," he said the latter. Id. at 164.

On cross-examination, the prosecution asked Officer Pennington, "based on [his] training and experience," how much heroin was found during Ms. Brooks's arrest. Id. at 167-68. He said the net weight (not including packaging) was roughly 1.65 grams. The following exchange then occurred:

GOVERNMENT : And in that case [Ms. Brooks's September 2019 arrest], was [sic] there any drug ledgers found or anything to, based on your training and experience, indicate that Ms. Brooklinn

...