United States v. McDaniel

• Decision Date: 30 May 2019
• Docket Number: No. 18-1477,18-1477
• Citation: 925 F.3d 381
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Terreall MCDANIEL, Defendant-Appellant.
• Court: U.S. Court of Appeals — Eighth Circuit

925 F.3d 381

UNITED STATES of America, Plaintiff-Appellee,

v.Terreall MCDANIEL, Defendant-Appellant.

No. 18-1477

United States Court of Appeals, Eighth Circuit.

Submitted: February 14, 2019

Filed: May 30, 2019

Rehearing and Rehearing En Banc Denied July 17, 2019

Daniel P. Goldberg, Research & Writing Atty., Office of the Fed. Public Defender, Kansas City, MO, argued (Laine Cardarella, Fed. Public Defender, on the brief), for appellant.

J. Benton Hurst, Asst. U.S. Atty., Kansas City, MO, argued (Timothy A. Garrison, U.S. Atty., Alison D. Dunning, Asst. U.S. Atty., on the brief), for appellee.

Before SMITH, Chief Judge, BENTON and STRAS, Circuit Judges.

BENTON, Circuit Judge.

After a bench trial, Terreall A. McDaniel was convicted of possession with intent to distribute cocaine and marijuana, in violation of 21 U.S.C. §§ 841(a)(1), (b)(1)(C), (b)(1)(D) and 851 ; possession of a firearm in relation to a drug trafficking crime, in violation of 18 U.S.C. § 924(c)(1)(A)(i) and (C)(i) ; and being a felon in possession of a firearm, in violation of 18 U.S.C. §§ 922(g)(1) and 924(e)(1). The district court¹ sentenced him to 622 months’ imprisonment. He appeals the conviction and sentence. Having jurisdiction under 28 U.S.C. § 1291, this court affirms.

I.

McDaniel believes the district court erred in admitting expert testimony without a Daubert hearing. This court reviews the "decision to admit expert testimony for abuse of discretion, giving substantial deference to the district court." David E. Watson, P.C. v. United States , 668 F.3d 1008, 1014 (8th Cir. 2012). "The main purpose of Daubert exclusion is to protect juries from being swayed by dubious scientific testimony." In re Zurn Pex Plumbing Prods. Liab. Litig. , 644 F.3d 604, 613 (8th Cir. 2011). There is "less need" for this "gatekeeping function" in bench trials. Id . See Watson , 668 F.3d at 1015 (same). In fact, "[t]here is no requirement that the [d]istrict [c]ourt always hold a Daubert hearing prior to qualifying an expert witness under Federal Rule of Evidence 702." United States v. Geddes , 844 F.3d 983, 991 (8th Cir. 2017) (alterations in original).

At trial, the government sought to introduce the expert testimony of Kansas City, Missouri Police Officer Detective Don Stanze. He testified generally that quantity and packaging indicate whether drugs are intended for personal use or trafficking. He opined that in this case, the cocaine was "individually packaged for sale," the ecstacy pills were intended for sale, and the marijuana "well exceeds what anybody would possess for the purpose of use." He also testified generally: (1) "drug scales, other packaging, firearms, U.S. currency, [and] cell phones" are "tools of the trade" for "drug distribution;" (2) dealers often package drugs in "ready-for-sale" baggies; (3) dealers use firearms to protect their drugs and money; and (4) dealers often use borrowed vehicles and aliases to avoid law enforcement detection.

McDaniel asserts the court improperly relied on Detective Stanze’s testimony because it lacked "scientific method." But Federal Rule of Evidence 702 does not require this. Rather, it allows testimony from "[a] witness who is qualified as an expert by knowledge, skill, experience, training, or education" if "the expert’s scientific, technical, or other specialized knowledge will help the trier of fact to understand the evidence or to determine a fact in issue." Fed. R. Evid. 702(a) . Detective Stanze had knowledge, skill, experience, and training sufficient to qualify him as an expert in drug trafficking. See Adams v. Toyota Motor Corp. , 867 F.3d 903, 916 (8th Cir. 2017) (noting that an expert opinion "need not be a scientific absolute in order to be admissible" (internal quotation marks omitted)). During his 22 years in law enforcement, he made over 500 drug purchases (both user and dealer quantities); executed over 200 search warrants; participated in over 100 drug interviews or proffers; received ongoing training about drug trafficking; and taught at the regional academy on "drugs, narcotics, and narcotics trends in the Kansas City area." Significantly, he has testified as a drug-trafficking expert in federal court about 25 times. "[T]he district court did not abuse its discretion in permitting the testimony, which was based on the specialist’s experience and training." United States v. Carter , 205 F.3d 1348, at *2 (8th Cir. 1999). See Geddes , 844 F.3d at 991 (holding no abuse of discretion in "the district court’s decision not to hold a Daubert hearing" and to allow a member of a human-trafficking task force with 14 years of experience to testify "on the operation of sex trafficking rings and the terms used therein"); United States v. Evans , 272 F.3d 1069, 1094 (8th Cir. 2001) ("There is no requirement that the District Court always hold a Daubert hearing prior to qualifying an expert witness under Federal Rule of Evidence 702, and the Court did not abuse its discretion in finding the proposed testimony of Sergeant Schmidt to be both reliable and relevant, and in allowing that testimony.").

II.

McDaniel contends the district court erred in denying his motions for judgment of acquittal because the evidence was insufficient to convict on: Count Two—possession of a firearm (a Smith & Wesson) in furtherance of a drug-trafficking crime (possession with intent to distribute cocaine); Count Three—felon in possession of a firearm (a Smith & Wesson); and Count Five—possession of a firearm (a Walther) in furtherance of a drug-trafficking crime (possession with intent to distribute cocaine and marijuana). This court reviews "the sufficiency of the evidence after a bench trial in the light most favorable to the verdict, upholding the verdict if a reasonable factfinder could find the offense proved beyond a reasonable doubt." United States v. Iqbal , 869 F.3d 627, 629-30 (8th Cir. 2017).

On Counts Two and Three, McDaniel believes the evidence was insufficient to show that the Smith & Wesson was a "firearm" under 18 U.S.C. § 921(a)(3)(A)² because it was destroyed before trial. This belief is without merit. The government introduced the following evidence to show the Smith & Wesson was a firearm under § 921(a)(3)(A) : (1) eyewitness testimony from Trooper Aaron Engelhart—the Missouri State Highway Patrol Trooper who seized the Smith & Wesson—opining that it was a "firearm," loaded with live ammunition; (2) photographs of the Smith & Wesson (including its serial number); (3) dash cam footage with statements from McDaniel that, "They’re about to find the gun and shit;" and (4) the opinion of ATF Special Agent Matthew Wilson that, based on pictures and a description, the object was a "firearm." This was sufficient to show the Smith & Wesson was a firearm as defined in § 921(a)(3)(A). See United States v. Dobbs , 449 F.3d 904, 911 (8th Cir. 2006) ("[W]ithout a firearm in evidence and without expert opinions based on analysis of the firearm, lay testimony from eyewitnesses can be sufficient to support a finding that an object is, in fact, a firearm under § 921(a)(3)(A)."). See also United States v. Davis , 668 F.3d 576, 577 (8th Cir. 2012) (holding that this court has "consistently held that proof the firearm was operable is not required because the plain language of § 921(a)(3) requires only that the weapon ... is designed to ... expel a projectile by the action of an explosive" (internal quotation marks omitted)).

On Counts Two and Five, McDaniel believes the evidence was insufficient to show a nexus between possession of the firearm and the drug-trafficking crimes. This belief also is without merit. "To establish that a defendant possessed a firearm in violation of § 924(c), the Government must prove that (1) he committed a drug trafficking crime, and (2) he possessed a firearm in furtherance of that crime." United States v. Robinson , 617 F.3d 984, 988 (8th Cir. 2010) (internal quotation marks omitted). "To satisfy the ‘in furtherance of’ element, of § 924(c), the government must present evidence from which a reasonable [trier of fact] could find ... [the] possession had the effect of furthering, advancing or helping forward the drug crime." Id. (some internal quotation marks omitted).

On Count Two, the government introduced evidence establishing a nexus between McDaniel’s possession of the Smith & Wesson and possession with intent to distribute cocaine: (1) he was the driver and sole occupant of the PT Cruiser where Trooper Engelhart found 22 baggies of cocaine, marijuana, two digital scales, and a loaded Smith & Wesson; and (2) the dash cam recorded him saying "It’s over for me" and "They’re about to find the gun and shit." On Count Five, the government introduced evidence establishing a nexus between possession of the Walther and possession with intent to distribute cocaine and marijuana: (1) he was the driver and sole occupant of a Hyundai Tiburon that fled from officers at high speeds before crashing on the side of a road; (2) after crashing, he attempted to flee the scene on foot; (3) when caught, he gave a false name; and (4) and a search of the Tiburon revealed 10 individually wrapped bags of cocaine, 11 bags "containing colorful pills," a grinder, an electronic scale, over 1,000 grams of marijuana, and a loaded Walther. This evidence was sufficient to support the convictions. See United States v. McDaniel , 838 F.3d 955, 957 (8th Cir. 2016) ("A jury may infer the requisite nexus if the firearm is kept in close proximity to the drugs, it is quickly accessible, and there is expert testimony regarding the use of firearms in connection with drug trafficking." (internal quotation marks omitted)).

III.

McDaniel argues the district court erred in sentencing him as an armed career criminal under 18 U.S.C. § 924(e) because "[t]he government failed to demonstrate that two of the predicate convictions relied on by the district court were ‘committed on occasions different from one another.’ " The ACCA enhances sentences...