United States v. Dunnican

961 F.3d 859

UNITED STATES of America, Plaintiff-Appellee,

v.Keli DUNNICAN, Defendant-Appellant.

No. 19-3092

United States Court of Appeals, Sixth Circuit.

Decided and Filed: June 9, 2020

ON BRIEF: Kevin M. Cafferkey, Cleveland, Ohio, for Appellant. Matthew B. Kall, UNITED STATES ATTORNEY'S OFFICE, Cleveland, Ohio, for Appellee. Keli Dunnican, Bruceton Mills, West Virginia, pro se.

Before: SUTTON, BUSH, and READLER, Circuit Judges.

OPINION

JOHN K. BUSH, Circuit Judge.

Keli Dunnican appeals a judgment of conviction for the charges of being a felon in possession of a firearm, in violation of 18 U.S.C. § 922(g) (Count I); possessing marijuana with the intent to distribute it, in violation of 21 U.S.C. § 841(a)(1) and (b)(1)(D) (Count II); and carrying a firearm during and in relation to a drug trafficking crime, in violation of 18 U.S.C. § 924(c) (Count III). Dunnican argues that the district court plainly erred in allowing the government to introduce under Federal Rule of Evidence 902(14) certain data extracted from his cellular telephone. He also contends that the district court abused its discretion in allowing the government to introduce under Federal Rule of Evidence 404(b) certain text messages from his cellular telephone, allowing Drug Enforcement Administration (DEA) Special Agent Shaun Moses to offer expert opinion testimony that the marijuana found in Dunnican's car appeared to be packaged for distribution, denying Dunnican's motion for judgment of acquittal, denying his motion for a new trial following the dismissal of a jury member, and imposing a 21-month upward variance on Dunnican's sentence.

Because we find no error in the district court's rejection of Dunnican's Rule 902(14) argument, and we determine that the district court did not abuse its discretion in its rulings related to his other arguments, we AFFIRM the district court's judgment in full.

I.

A. The Trial Evidence

Dunnican's conviction arose from a search of his car conducted by Ohio Adult Parole Authority (APA) officers while he was on parole. One condition of Dunnican's parole was that he consent to regular warrantless searches by APA officers. The search at issue was conducted at Dunnican's residence in East Cleveland, Ohio by APA Officers Miranda Polito and Jennifer Williamson.

Polito and Williamson arrived at Dunnican's residence shortly after noon on November 5, 2017 and observed that Dunnican's car was not in the driveway. Polito called Dunnican to ask where he was. Dunnican responded that he was on his way home and would be there soon. When he arrived, Dunnican parked his white Nissan sedan on the street, around 20-to-25 feet behind the officers’ car. Dunnican then exited his car and walked towards his residence.

Polito found it suspicious that Dunnican had parked his car so far away from his residence, given that the driveway was open and accessible. Polito and Williamson also observed that Dunnican smelled like marijuana and alcohol, his eyes were glazed, and he seemed anxious or "fidgety." After some questioning by Polito, Dunnican admitted that he had marijuana in his vehicle. Consequently, the officers placed Dunnican in custody, where they conducted a pat-down search and seized his car keys.

Polito and Williamson then searched Dunnican's car and discovered a small bag of marijuana, an electronic scale with residue, and two cellular telephones. In the car's trunk were two grocery bags. The first contained several individually-packaged Ziploc bags of marijuana, as well as bundles of U.S. currency wrapped in rubber bands; the second grocery bag contained a loaded firearm. When the officers asked Dunnican about the items seized, he responded that the car was not his. However, records from the Bureau of Motor Vehicles revealed that Dunnican was the lessee of the vehicle.

Upon taking custody of the evidence from the search, East Cleveland Police confirmed that the discovered firearm was loaded with fifteen rounds of ammunition. Additionally, after receiving consent from Dunnican's father, "Kelly" Dunnican, to search the residence, officers located a jar with more suspected marijuana in Dunnican's bedroom.

Dunnican was arrested and transported to Cuyahoga County Jail. During booking, officers discovered that he had $300 cash in his wallet.

Eric French, an Ohio Department of Rehabilitation and Corrections Officer, was assigned as the lead investigator in Dunnican's case. French was a member of the Bureau of Alcohol, Tobacco, Firearms, and Explosives (ATF) Gun Violence Task Force. He testified that the packages found in the trunk of Dunnican's car contained marijuana and weighed approximately one pound in total. French further testified that upon test-fire testing, the seized firearm was confirmed to be operational.¹ Also, and most significantly, French introduced recordings of four post-arrest telephone calls made by Dunnican:

(1) Dunnican's first call was with his father, Kelly Dunnican, who told his son during this call that officers had located "homegrown" in the son's bedroom. (R.77: Notice, GX16, at 1:50). To this, Keli Dunnican responded: "they got the other stuff anyways, so ... that ain't gonna hurt nothing." (GX16, at 2:03).

(2) In a second call, Dunnican told his father that although he was unconcerned about the officers locating marijuana, as it would only result in a misdemeanor charge, he worried that "the gun is a problem." (R.77:

Notice, GX17, at 0:15). Dunnican also indicated that he had "the craziest luck in the world." (Id. , at 0.45). Relatedly, he surmised to his father that an individual named "Anthony" had been funneling information about him to law enforcement. (Id .). Responding to this, Kelly Dunnican questioned why his son had failed to "take care of business" prior to returning home. (Id. , at 2:00). Keli Dunnican explained that he did not have time, and that although he had attempted to return to the house via "the back way," the patrol officers had seen him. (Id .). Once spotted, according to Dunnican, he had tried to reach his father on the telephone to see if he could meet him to take the car Dunnican drove. Later in this same conversation, an unidentified individual joined the call, at which point Dunnican admitted to this individual and his father that the car was his. Dunnican then complained that the officers would search his phones.

(3) Dunnican's third call was with an unidentified individual. Dunnican stated that he did not believe he could be charged with carrying a concealed weapon, given that the firearm was found in the car's trunk, and not within his immediate possession. At this point, another unidentified individual joined the call. Responding directly to Dunnican's last statement, the individual remarked, "I wish you would've just gave me that s**t," to which Dunnican responded, "It was in the trunk." (R.77: Notice, GX18, at 4:05). Dunnican then declared that he "was about to go right to the house and put that s**t in there," but did not have enough time. (Id . at 4:15).

(4) In Dunnican's final phone call, an unidentified woman asked him why he had not given her "the s**t" to take home. (R.77: Notice, GX19, at 2:30). Dunnican responded that he did not expect the officers to search his car.

Dunnican also had text-message conversations, which French summarized in exhibits introduced into evidence. French testified that the text-message conversations were obtained through a multi-step extraction process, which involved French's receiving two of Dunnican's phones from the East Cleveland Police, obtaining a search warrant for their search, and then attempting to access the phone data. This latter step involved the assistance of a mobile-extraction technician, who tried to download the data from one phone into a comprehensive report. However, the security features of the second phone impeded the data's accessibility.

Prior to trial, the government filed notice that it intended to authenticate the evidence extracted from the first cellular telephone under Federal Rule of Evidence 902(14). Included in the notice was a certification provided by ATF Special Agent Joshua Snyder, who possessed training and experience in mobile-device data extraction. Based on his background, Snyder certified the following: (1) that he extracted data from Dunnican's cellular telephone on March 25, 2018 through the use of specialized forensic software, which created an accurate and reliable duplication of the data; and (2) that the forensic software generated a "digital fingerprint" (otherwise known as a "hash"), which indicated that the extraction was successful, complete, and accurate. (R. 25-1: Certificate of Authenticity, PageID 76–77).

Notably, during the final pretrial hearings, Dunnican objected to neither the government's notice nor the proposed authentication method. Also, at trial, he did not raise an authenticity challenge to the data, arguing instead that the text-message summaries constituted hearsay. The government countered that the exhibits were admissible summaries of conversations between Dunnican and unidentified individuals that had been extracted from the forensic examiner's 11,038 page long report. Thereafter, the court overruled Dunnican's objection, thus allowing French to introduce the text-message summaries.²

French began by presenting two text-message summaries to establish Dunnican's ownership of the telephone at issue. The first, "Exhibit 22," revealed a text-message exchange between Dunnican and Polito on June 28, 2017. In that exchange, the two coordinated Polito's home inspection of Dunnican's residence. The second text-message exchange was between Dunnican and a contact named "LaRae Davis." In this exchange, Dunnican sent a photo of his white Nissan sedan, accompanied by a message stating: "A ‘15 Altima, thanks Lil Sis!" (R. 69: French Trans., PageID 726–27; R. 77: Notice, GX 35, PageID 1070).

The government then requested permission from the court to introduce additional text messages between Dunnican...