U.S. v. Russell

• Decision Date: 19 February 2010
• Docket Number: No. 07-2354.,07-2354.
• Citation: 595 F.3d 633
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Lord Shawn RUSSELL, Defendant-Appellant.
• Court: U.S. Court of Appeals — Sixth Circuit

595 F.3d 633

UNITED STATES of America, Plaintiff-Appellee, v. Lord Shawn RUSSELL, Defendant-Appellant.

No. 07-2354.

United States Court of Appeals, Sixth Circuit.

Argued: November 19, 2009.

Decided and Filed: February 19, 2010.

ARGUED:

John T. Schuring, Dickinson Wright PLLC, Grand Rapids, Michigan, for Appellant. Nils R. Kessler, Assistant United States Attorney, Grand Rapids, Michigan, for Appellee.

ON BRIEF:

John T. Schuring, Dickinson Wright PLLC, Grand Rapids, Michigan, for Appellant. Nils R. Kessler, Assistant United States Attorney, Grand Rapids, Michigan, for Appellee.

Before: MERRITT, GIBBONS, and McKEAGUE, Circuit Judges.

OPINION

JULIA SMITH GIBBONS, Circuit Judge.

Lord Shawn Russell was convicted of various drug- and firearm-related offenses and sentenced to 684 months' imprisonment. On appeal, he challenges his conviction and sentence on several grounds. For the reasons that follow, we affirm.

I.

On October 20, 2005, the Grand Rapids Police Department conducted a search of the residence at 912 Nagold Street Northwest ("Nagold"), in Grand Rapids, Michigan. Russell, present at the time of the search, told the officers that "he had no knowledge of any drug activity inside the home." However, police found drug paraphernalia in "[p]retty much every room" of the house. The police also found three cars near the house: a Cadillac parked next to the house, and a Lincoln and a Chevy Blazer parked in the street. The Cadillac was positioned against the property's fence in such a way that one could only access its trunk from inside the fence via a hole cut in the fence that lined up with the locking mechanism of the trunk. Three firearms were found in the trunk. Upon searching Russell's person, the police discovered the key to the Cadillac and $4,100 in cash in his shoes. Russell was taken into custody at the scene.

On the night of June 10, 2006, sheriff's deputies responding to shots fired at 3930 Mayfield Avenue ("Mayfield") encountered Russell outside the apartment complex and took him into custody again. Neighbors reported that, upon hearing gunfire, they saw Russell firing a handgun into the apartments and called the police. The sheriff's detectives later uncovered a .380 caliber semi-automatic pistol in the area where the neighbors had seen Russell digging after the shots were fired. Ballistics tests determined that shell casings found at Mayfield had been fired by the gun dug up in the backyard.

After obtaining a search warrant, the police searched Russell's Mayfield apartment. The police discovered much of the same types of drug paraphernalia that had been discovered at Nagold. They also found a receipt for a rent payment made by Russell for the Mayfield apartment, although the apartment was leased in the name of Jodee Griffee. The search also revealed two state vehicle registrations: one for a Chevy Blazer, registered to Russell and Kenneth Oyler at the Nagold address, and one for the Cadillac, registered to Russell and Brena Faye Watts. Russell's neighbors also told police that Russell appeared to be selling drugs from his apartment and the trunk of his Lincoln every day and at all hours. A search of the Lincoln revealed two more handguns, and a canine trained in the detection of narcotics alerted to $11,375 in cash found on Russell's person. Russell claimed that the cash was proceeds from gambling and selling cars but had no documentation to prove it. Although a gunshot residue test performed on Russell's hands was negative, the forensic detective who conducted the test later testified that the result was not surprising given the length of time that elapsed between the shooting and the test. Roughly a day and a half after the shooting, a maintenance worker at Mayfield discovered a small baggy containing cocaine base near a walkway outside Russell's apartment. Testing of the baggy provided a virtual 100% match to a DNA sample from Russell. A total of 3.96 grams of cocaine base and .56 grams of cocaine powder were confiscated from Mayfield.

On May 10, 2007, a grand jury returned an eight-count, second superseding indictment charging Russell with the crimes of maintaining a drug-involved premises, in violation of 21 U.S.C. § 856(a)(1), for the Mayfield apartment (count 1) and the Nagold house (count 6); possession of cocaine base with intent to distribute, in violation of 21 U.S.C. § 841(a)(1) (count 2); using, carrying, and discharging a firearm during and in relation to a drug trafficking crime, in violation of 18 U.S.C. § 924(c) (count 3); possession of firearms in furtherance of a drug trafficking crime, in violation of 18 U.S.C. § 924(c) (counts 4 and 7); and felon in possession of firearms, in violation of 18 U.S.C. § 922(g) (counts 5 and 8).

Toward the end of voir dire, juror number four informed the district court that, as a paralegal for a tribal prosecutor's office, she helped to prepare cases, and worked with tribal law enforcement officers every day. The juror explained that although she identified with the prosecutor "[p]rofessionally," she did not "[p]ersonally" lean in one particular direction with respect to the case. She added that she did not think her professional capacity would cause her to hesitate to return a verdict of not guilty if the evidence called for it, nor would it lead her to be unfair to Russell. She indicated that she understood the reasonable doubt standard, that the burden remained with the prosecutor to exceed that level of proof, and that it would be her responsibility as a juror to follow the law provided by the court. The district judge denied defense counsel's motion to excuse the juror for cause, and counsel chose not to exercise a peremptory challenge. Before the jury was empaneled, the district judge asked the prosecutor whether, in order to "play it conservatively," juror number four should be excused, but the prosecutor declined. Defense counsel asked no further questions of juror number four, adding only, "I made my motion," and the jury was empaneled.

During its case-in-chief, the government presented testimony by law enforcement officers and called four additional witnesses. James Tanner testified that Russell had sold him crack cocaine at the Mayfield apartment or out of Russell's car, and that he had seen Russell sell crack to "[f]ifteen to twenty" other people at various locations. Tanner further testified that he saw Russell count "thousands" of dollars in cash at his apartment. Jodee Griffee, Tanner's girlfriend, testified that she put her name on the lease for Russell's Mayfield apartment at Tanner's request but never lived there or paid rent of any kind. Russell had paid the security deposit. Kenneth Oyler also testified that Russell sold him crack cocaine on between twelve and thirty occasions. He recounted that, in exchange for crack cocaine, he helped Russell to purchase an automobile by signing the paperwork. He also traded his Smith and Wesson pistol to Russell for crack cocaine worth $50. Finally, the prosecution called Anna Pahman. Pahman testified that she began living with Russell at the age of sixteen; they lived together in several locations, including the Mayfield apartment. During that time, Pahman received crack cocaine from Russell roughly three times per week, and she saw Russell sell crack cocaine to about fifty different people. The sales took place at several locations, including at Mayfield. According to Pahman, drug sales totaled between $300 and $500 daily, and, at night, Pahman often watched Russell count between $15,000 and $20,000 in cash. Pahman testified that Russell was not employed in any capacity other than drug trafficking.

At no point did Russell move for a directed verdict. At the close of arguments, the district court recited the jury instructions, which had been decided upon by the court prior to trial and after submissions by both parties. As to counts 1 and 6— maintaining drug-involved premises under 21 U.S.C. § 856(a)(1)—Russell had requested that the court instruct the jury that the elements of the offense were:

(A) First, that the defendant knowingly opened, leased, rented, used, or maintained a place, whether permanently or temporarily;

(B) Second, that the defendant did so for the purpose of manufacturing, distributing, or using any controlled substance.

Russell further requested the following definitions:

(2) "For the purpose" of manufacturing, distributing, or using a controlled substance means that drug manufacturing, use, or distribution was a significant or important reason why the defendant rented his apartment. It need not have been the only reason, but it must have been one of the primary or principal reasons.

(3) Proof that defendant manufactured, used, or distributed drugs at his apartment, without more, is not sufficient to convict Defendant under this statute. The government must prove that Defendant rented or used the apartment for that specific purpose.

The government requested that, with respect to the purpose of Russell's maintenance of the property, "[m]anufacturing, distributing, and/or using controlled substances need not be the only purpose, or the primary purpose, for the use or maintenance of the place." The district court used a modified version of Russell's proposed instructions, essentially adopting the elements of the crime laid out in paragraphs A and B, but slightly altering the definitions in paragraphs 2 and 3 as follows:

([2]) "For the purpose" of distributing a controlled substance means that drug distribution was a significant or important reason for which the defendant rented or used his apartment. It need not have been the only reason [deleting the last clause].

([3]) Proof that defendant distributed drugs at his apartment, on occasion [added], without more, is not sufficient to convict Defendant under this statute. The government must prove that Defendant maintained the apartment for that purpose [deleting "specific"].

Russell objected to the court's...