United States v. Ham

RECOMMENDED FOR FULL-TEXT PUBLICATION

Pursuant to Sixth Circuit Rule 206

File Name: 11a0008p.06

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

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Plaintiff-Appellee, -

UNITED STATES OF AMERICA,

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v. -

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No. 09-5730

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Defendant-Appellant. -

MICHAEL RODNEY HAM,

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Appeal from the United States District Court

for the Eastern District of Tennessee at Knoxville.

No. 08-00010-001—Thomas A. Varlan, District Judge.

Argued: August 4, 2010

Decided and Filed: January 7, 2011

Before: SILER and SUTTON, Circuit Judges; CLELAND, District Judge.*

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COUNSEL

ARGUED: Francis L. Lloyd, Jr., LAW OFFICE OF FRANCIS L. LLOYD, JR.,

Knoxville, Tennessee, for Appellant. Debra A. Breneman, ASSISTANT UNITED

STATES ATTORNEY, Knoxville, Tennessee, for Appellee. ON BRIEF: Francis L.

Lloyd, Jr., LAW OFFICE OF FRANCIS L. LLOYD, JR., Knoxville, Tennessee, for

Appellant. Debra A. Breneman, Hugh B. Ward, Jr., ASSISTANT UNITED STATES

ATTORNEY, Knoxville, Tennessee, for Appellee.

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OPINION

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CLELAND, District Judge. Michael Rodney Ham appeals his conviction for

possession of cocaine base (“crack”) with intent to distribute, possession of a firearm in

*

The Honorable Robert H. Cleland, United States District Judge for the Eastern District of

Michigan, sitting by designation.

1

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furtherance of a drug trafficking offense, and being a felon in possession of a firearm.

Ham objected to few if any of his issues at trial, but now challenges the admission of

certain evidence, the sufficiency of the evidence, the district court’s jury instructions,

certain statements by the Government in opening statement and closing argument, and

his consecutive sentence under 18 U.S.C. § 924(c). We AFFIRM.

I. BACKGROUND

The Knox County Sheriff’s Office utilized a confidential informant to conduct

a series of “controlled buys” of crack cocaine from a seller known as “Ace” at 1537

Virginia Avenue in Knoxville, Tennessee. Based on these purchases, the Sheriff’s

Office obtained a search warrant to seize drugs from the premises.

On September 18, 2007, officers executed the search warrant. The officers

knocked and announced their presence; however, no one answered the door. The

officers therefore used a ram to forcibly enter the house. Upon entry, the officers

encountered Jabari Sheffield, also known as “Jam,” and two small children in the living

area. In securing the house, officers located a bedroom door that they were unable to

open easily.

The officers forcibly opened the door and found Ham hiding in the bedroom

closet. At Ham’s feet, on the closet floor, officers recovered 37.4 grams of crack

cocaine. Also in the closet was a black case containing ammunition and an unloaded

.380-caliber pistol, which had been reported stolen from an individual in Knox County

in 2006. On top of an armoire near the closet, approximately head-high, officers located

a loaded 9 mm handgun. The officers found and seized $1,008 in cash from Ham’s

pockets, the bed, the armoire, and a shoebox in the closet. The officers also seized a box

of various ammunition, plastic baggies, and a set of digital scales from the bedroom, as

well as three cellular telephones from the house. A plate with a razor blade and white

residue on it was located in the bathroom.

Ham was arrested and transported to a detention facility. Upon booking, Ham’s

tattoos—an “Ace of Spades” and a dagger—were photographed. Ham was charged with

No. 09-5730 United States v. Ham Page 3

possession with intent to distribute five grams or more of crack, possession of a firearm

in furtherance of a drug trafficking crime, and being a felon in possession of a firearm.

A jury convicted Ham of all counts on October 16, 2008. The district court

sentenced Ham to an effective term of imprisonment of 190 months, followed by eight

years of supervised release. Ham now appeals.

II. ANALYSIS

A. Evidentiary Issues

1. Standard of Review

Generally, “[w]e review the district court’s admission or exclusion of evidence

for an abuse of discretion.” United States v. Davis, 514 F.3d 596, 611 (6th Cir. 2008)

(quoting United States v. Ganier, 468 F.3d 920, 925 (6th Cir. 2006)). However, if the

complaining party fails to object in the district court, we review for plain error. United

States v. Cowart, 90 F.3d 154, 157 (6th Cir. 1996).

2. Agent Dave Lewis

a. Relevance and Probative Value

Agent Dave Lewis, a special agent with the Drug Enforcement Administration

(“DEA”) for approximately twenty-two years, testified regarding the characteristics of

crack cocaine as well as the methods involved in the distribution of the drug. Defendant

argues that the district court abused its discretion because it failed to assess the relevance

and probative value of Agent Lewis’s testimony before he was permitted to testify.

Defendant did not raise this specific objection during trial; therefore, we review the

district court’s decision for plain error.

We have previously rejected an identical challenge in United States v. Alford,

332 F. App’x 275, 281 (6th Cir. 2009), in which the defendant argued that “the district

court’s failure to assess the relevancy and probative value of Agent Lewis’s testimony

prior to its admission was plain error.” Id. We noted that “this Court has consistently

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held that expert testimony by a law enforcement officer about the method of operation

of drug dealers is admissible pursuant to Fed. R. Evid. 702,” id. (citing United States v.

Thomas, 74 F.3d 676, 682 (6th Cir. 1996)), and that “this Court has deemed Agent Lewis

qualified in this area,” id. (citing United States v. List, 200 F. App’x 535, 545 (6th Cir.

2006)). We found no plain error in the admission of Agent Lewis’s testimony,

determining that it was “highly relevant and helped the jury in resolving the central issue

of whether [the defendant] possessed the crack with intent to distribute.” Id. at 281-82.

There is no reason to reach a different conclusion in this case. The district court

properly admitted the expert testimony of Agent Lewis.

b. Personal Use Quantities

Defendant argues that the district court clearly erred by allowing Agent Lewis

to testify beyond his area of expertise. Specifically, Defendant contends that Agent

Lewis’s background and training does not qualify him to testify to the quantities of crack

that are consistent with personal use. This argument is without merit. As we stated in

Alford, “[t]his Court routinely allows qualified law enforcement officials to testify that

circumstances are consistent with drug distribution rather than personal use.” Alford,

332 F. App’x at 282 (citing United States v. Swafford, 385 F.3d 1026, 1030 (6th Cir.

2004) (and cases therein); United States v. Combs, 369 F.3d 925, 940 (6th Cir. 2004);

United States v. Thomas, 74 F.3d 676, 682 (6th Cir. 1996)). There was no plain error.

c. Cellular Telephones

Defendant also argues that Agent Lewis’s testimony concerning “throw-away”

cellular telephones was beyond the scope of his expertise, irrelevant, and unduly

prejudicial. Agent Lewis testified, without objection, that drug traffickers often use

throw-away phones because they can be set up with a fictitious name, making them

untraceable. Defendant argues that this testimony was improper because there was no

evidence in the record that Defendant used any of the three phones in the manner

described by Agent Lewis.

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The testimony was within the scope of Agent Lewis’s expertise because it

concerned a “method of operation of drug dealers.” Id. at 281. Agent Lewis’s

testimony explaining why the items seized from the house were consistent with drug

dealing was relevant to the issue of whether Defendant intended to distribute the drugs

found with him in the bedroom closet. See Thomas, 74 F.3d at 682 (“[W]ithout expert

testimony, the average juror is unlikely to understand the significance of drug

paraphernalia . . . .”). The fact that there was no direct evidence that Defendant used the

cell phones in the way that Agent Lewis testified is of no consequence. Agent Lewis

was not offered to provide percipient testimony directly demonstrating Defendant’s

actions. Instead, he was providing an opinion, based on extensive training and

experience, about the items recovered from the residence and the reasons that they were

consistent with drug trafficking. Defendant was free to cross-examine Agent Lewis to

demonstrate that there were other legitimate uses for these items. In addition, the jury

was instructed that they did not have to accept the opinion testimony and that they

should consider how the witness reached his conclusion. Accordingly, we find nothing

prejudicial in Agent Lewis’s testimony concerning throw-away cellular telephones and

conclude there was no error in its admission.

3. Investigator Chris Bryant

Chris Bryant, an investigator with the narcotics unit of the Knox County Sheriff’s

Office, testified predominantly regarding the “controlled buys” and the execution of the

search warrant. He also explained to the jury that items such as scales and plastic

sandwich bags are used in the drug trade just as they are in the average household: to

weigh and to package things. Defendant argues that the district court erred by allowing

Bryant’s “transformation from a fact witness to an opinion witness.” (Appellant’s Br.

12.) Defendant did not object to Bryant’s passing comments about these few items of

evidence at trial. We review for plain error.

Although testimony concerning drug dealing is specialized knowledge “not

within the experience of the average juror,” United States v. Lopez-Medina, 461 F.3d

724, 742 (6th Cir. 2006), we are hard-pressed to declare ourselves convinced that

No. 09-5730 United States v. Ham Page 6

Bryant’s testimony concerning plastic baggies and scales constitutes “expert testimony”

that must comply with the well-known admissibility requirements. But, for the sake of

discussion, we will address it as if it did.

The admission of this “expert testimony” presents two issues; neither warrants

reversal. First, in its Rule 16 disclosure, the Government did not provide Defendant with

notice that Bryant would comment about plastic baggies and scales. Nonetheless,

Defendant was in no way prejudiced by this absence. The Government’s Rule 16

disclosure notified Defendant that expert testimony concerning the general practices of

drug dealers would be introduced at trial. Defendant thus “did not suffer any surprise,”

a point underscored by his attorney’s silence as Bryant’s brief testimony on these points

was heard. United States v. White, 492 F.3d 380, 407 (6th Cir. 2007) (quoting United

States v. Tarwater, 308 F.3d 494, 515 (6th Cir. 2002)). More fundamentally, he has

failed to show “how the outcome of the case would have been different” had he received

notice. Id.

Second, when a witness gives both fact and expert testimony, the district court

must give “a ‘cautionary jury instruction regarding the [witness’s] dual witness roles’”

or there must be “‘a clear demarcation between [the witness’s] fact testimony and expert

opinion testimony.’” United States v. Smith, 601 F.3d 530, 540 (6th Cir. 2010) (quoting

Lopez-Medina, 461 F.3d at 745). The district court did not give a dual-witness

instruction and there was not a clear demarcation between the fact and expert testimony.

Even so, Defendant cannot show that this error “affected substantial rights” and

“seriously affected the fairness, integrity or public reputation of judicial proceedings.”

Id. at 541 (quoting United States v. Jones, 108 F.3d 668, 670 (6th Cir. 1997)). The

district court’s instruction, which told the jurors that they could reject the opinions given

and that they should consider how the witnesses reached their conclusions, was adequate

to “guard against the risk of confusion inherent when a law enforcement agent testifies

as both a fact witness and as an expert witness.” Lopez-Medina, 461 F.3d at 744.

Moreover, there were no other evidentiary errors in this case. See United States v.

Vasquez, 560 F.3d 461, 470-71 (6th Cir. 2009) (noting that “we have declined to extend

No. 09-5730 United States v. Ham Page 7

the holding in Lopez-Medina to circumstances in which there were no other evidentiary

errors”). And in light of the other substantial evidence of Defendant’s guilt in this case,

particularly the distribution quantities of crack cocaine discovered at Defendant’s feet

in the closet, Investigator Bryant’s “dual testimony here is insufficient to ‘show [] an

actual effect on the outcome of the case.’” United States v. Martin, 520 F.3d 656, 660

(6th Cir. 2008) (quoting Lopez-Medina, 461 F.3d at 745) (alteration in original).

Defendant has not shown that he is entitled to a reversal of his conviction.

4. Jabari Sheffield’s Crack Cocaine Complaint and Judgment

Defendant alleges that the district court erred by refusing to admit into evidence

a complaint against Jabari Sheffield for possession of 9.6 grams of crack cocaine for

resale and a judgment showing her subsequent guilty plea to simple possession of

cocaine. The complaint states that officers recovered the crack cocaine from Sheffield

on Bonnyman near Oldham, on June 2, 2007. The district court sustained the

Government’s objection, concluding that the exhibit could not be introduced for

impeachment purposes under Federal Rule of Evidence 609 because Sheffield was not

testifying and that the exhibit was not relevant to whether Defendant was guilty of the

crimes charged. Defendant argues that this was error because the trial court should have

analyzed the admissibility under Federal Rule of Evidence 803(8)(C) and 804(b)(3).

Defendant’s argument misses the mark. The evidence was not excluded because

it was hearsay, and it does not matter whether an exception to the hearsay rule might

apply.

Nor do we find that the district court abused its discretion in sustaining the

Government’s objection to evidence that was not relevant. The evidence suggesting that

Sheffield was dealing drugs at another location does not bear on any fact of consequence

in this case. Sheffield’s potential involvement in drug trafficking activities—others or

those implicated in this case—does not make the question of Defendant’s guilt more or

less likely. Indeed, the Government was not required to prove that it was Defendant, to

the exclusion of all others, who possessed the drugs and firearms in this case. Even if

Sheffield jointly possessed the guns and drugs at 1537 Virginia Avenue, Defendant

No. 09-5730 United States v. Ham Page 8

could still be found guilty. United States v. Gibbs, 182 F.3d 408, 425 (6th Cir. 1999)

(citing United States v. Craven, 478 F.2d 1329, 1333 (6th Cir. 1973)). The district court

did not abuse its discretion in refusing to admit the evidence regarding Jabari Sheffield’s

crack cocaine charge and guilty plea.

5. Stolen Firearm

Special Agent Rebecca Bobich testified that the .380-caliber pistol recovered

from the bedroom closet was reported stolen in Knox County on October 21, 2006.

Defendant argues that this evidence was not relevant to any of the offenses charged in

this case. Defendant is mistaken. The legality of the possession of a firearm is a factor

to consider in determining whether the firearm was possessed in furtherance of a drug

trafficking offense. United States v. Mackey, 265 F.3d 457, 462 (6th Cir. 2001). Any

prejudice to Defendant was minimized by the district court instructing the jury, twice,

that Defendant was on trial only for the crimes charged in the indictment. R. 42 at 128,

143. There was no error in the admission of Special Agent Bobich’s testimony.

B. Sufficiency of the Evidence

This Court reviews de novo a defendant’s claim of insufficiency of the evidence.

United States v. Gunter, 551 F.3d 472, 482 (6th Cir. 2009). “In reviewing challenges

regarding the sufficiency of the evidence presented to the jury, we are limited to

ascertaining whether, viewing the evidence in the light most favorable to the

government, ‘any rational trier of fact could have found the essential elements of the

crime beyond a reasonable doubt.’” United States v. Carmichael, 232 F.3d 510, 519 (6th

Cir. 2000) (quoting Jackson v. Virginia, 443 U.S. 307, 319 (1979)).

1. Possession of Cocaine Base with Intent to Distribute

“To establish a violation of § 841(a)(1), the government must prove the following

elements: ‘(1) knowing (2) possession of a controlled substance (3) with intent to

distribute.’” Mackey, 265 F.3d at 460 (quoting United States v. Christian, 786 F.2d 203,

210 (6th Cir. 1986)).

No. 09-5730 United States v. Ham Page 9

Defendant argues that, aside from Agent Lewis’s testimony that the crack was

packaged for distribution and was “way too much for personal use” and Investigator

Bryant’s testimony regarding the scales and baggies, there was insufficient evidence that

Defendant possessed the crack with intent to distribute. Contrary to Defendant’s

argument, “all of the evidence is to be considered” when reviewing for sufficiency of the

evidence. Jackson, 443 U.S. at 319. As discussed above, the admission of Agent

Lewis’s testimony was not error. Therefore, there is no reason to set aside Agent

Lewis’s testimony about how the drugs were arranged for distribution in three-gram

packages, worth $150 to $200 a piece, and that 37.4 grams, representing a minimum of

370 doses, is too much for personal use. This is competent evidence that well supports

the jury’s verdict.

Additional evidence also supported the conviction. Investigator Bryant testified

that the confidential informant made a series of controlled buys from a person he

referred to as “Ace” at 1537 Virginia Avenue. Defendant sports an “Ace of Spades”

tattoo, and was within a locked bedroom at that Virginia Avenue address. Defendant’s

plan to avoid apprehension was to hide in the closet with more than 37 grams of crack

cocaine at his feet. Any reasonable jury could have concluded that Defendant was the

same “Ace” who was selling drugs to the confidential informant. We wonder what jury

would not reach that conclusion. Moreover, the jury could have inferred solely from the

possession of this large quantity of drugs that Defendant intended to further distribute

it. United States v. Haywood, 280 F.3d 715, 724 (6th Cir. 2002) (18 grams of crack

cocaine sufficient for an inference of intent to distribute); United States v. Clemons, 9

F. App’x 286, 289 (6th Cir. 2001) (8.5 grams of crack cocaine “was large enough to

draw an inference of intent to distribute”). In addition, Investigator Bryant testified that

firearms were recovered nearby the drugs, $1,008 was recovered from the bedroom, and

no drug paraphernalia to use the crack was recovered. See United States v. Wilson, 27

F.3d 1126, 1133 (6th Cir. 1994) (recognizing “the connection between guns and drug

trafficking”); United States v. Collier, 246 F. App’x 321, 330 (6th Cir. 2007) (recovery

of $1,900 from the defendant’s pocket supported conclusion that the defendant was

selling drugs). The evidence presented was more than sufficient to support the jury’s

No. 09-5730 United States v. Ham Page 10

finding, beyond a reasonable doubt, that Defendant was guilty of possessing crack with

intent to distribute.

2. Possession of a Firearm in Furtherance of a Drug Trafficking Offense

Under 18 U.S.C. § 924(c), any person “who, in furtherance of [a drug trafficking]

crime, possesses a firearm, shall, in addition to the punishment provided for [the] drug

trafficking crime– (i) be sentenced to a term of imprisonment of not less than 5 years.”

18 U.S.C. § 924(c)(1)(A)(i). To prove the possession was “in furtherance of” the drug

trafficking crime, the Government must show a “specific nexus between the gun and the

crime charged” and that the firearm “was strategically located so that it is quickly and

easily available for use.” Mackey, 265 F.3d at 462. Other factors to consider include:

(1) “whether the gun was loaded,” (2) “the type of weapon,” (3) “the legality of its

possession,” (4) “the type of drug activity conducted,” and (5) “the time and

circumstances under which the firearm was found.” Id.

We applied the Mackey factors in Swafford and concluded that each of the factors

supported the conclusion that the defendant possessed the firearm “in furtherance of” the

drug offenses. Swafford, 385 F.3d at 1029. There, the firearm was a loaded

semiautomatic pistol found within arm’s reach of where the defendant was lying. Id.

A DEA Agent testified that these weapons “play a role in drug distribution, as dealers

carry them for protection and intimidation purposes.” Id. The defendant was a

convicted felon and could not lawfully possess the gun. Id. Also, “the gun was

discovered as the officers executed a search warrant looking for drugs, which they

ultimately found.” Id. Even though the drugs were not found in the same room as the

gun, we concluded that the evidence was sufficient to support the defendant’s

conviction. Id.

Application of the factors from Mackey leads us to the same conclusion. The

loaded 9 mm pistol in this case was located about head-high on top of an armoire

situated just outside the closet where the drugs were found. It was “strategically located

so that it [was] quickly and easily available for use.” Mackey, 265 F.3d at 462. Similar

to the DEA Agent’s testimony in Swafford, Agent Lewis testified that persons involved

No. 09-5730 United States v. Ham Page 11

in drug trafficking almost always have guns because “[i]t’s an illegal business, and the

only way they can protect this illegal business is through violence or the threat of

violence.” R. 42 at 77. Like Swafford, Defendant could not lawfully possess a handgun

because he was a convicted felon. Swafford, 385 F.3d at 1029. Also, as in Swafford,

“the gun was discovered as the officers executed a search warrant looking for drugs,

which they ultimately found.” Id. The nexus between the offense and gun is even

stronger than in Swafford because the gun was found in closer proximity to the drugs,

i.e., in the same room. We conclude that a rational trier of fact could have found beyond

a reasonable doubt that Defendant possessed a firearm in furtherance of a drug

trafficking offense.

C. District Court’s Instructions

1. Failure to Give a Cautionary Instruction

Defendant argues that the district court’s failure to give a cautionary instruction

following Agent Lewis’s testimony was plain error. This Court addressed a similar

challenge to a district court’s failure to give a cautionary instruction following Agent

Lewis’s testimony in Alford. 332 F. App’x at 282. We found no plain error because,

when the district court charged the jury the morning after the one-day trial, it gave a

cautionary instruction on opinion testimony that was the same as the instruction in

Swafford. Id. at 282-83.

The district court here gave a cautionary jury instruction regarding opinion

testimony that was very similar to the charge given in Swafford. 385 F.3d at 1030 n.4.

In addition, the district court gave a general instruction about weighing witness

testimony. These instructions were given mere hours after Agent Lewis testified.

Accordingly, we find no plain error in the district court’s failure to also instruct the jury

immediately following Agent Lewis’s testimony.

No. 09-5730 United States v. Ham Page 12

2. Burden of Proof

Defendant takes issue with the district court’s instruction to the jury during voire

dire that “the burden of proof is on the government until the very end of this case.” R.

41 at 13. Defendant acknowledges that the district court gave an accurate instruction

after the close of evidence, and that he did not object to the court’s language during voir

dire, but argues that the instruction constituted plain error because it implied the burden

might shift to Defendant.

“This court reviews jury instructions as a whole to determine whether they fairly

and adequately inform the jury of relevant considerations and explain the applicable law

to assist the jury in reaching its decision.” United States v. Prince, 214 F.3d 740, 760-61

(6th Cir. 2000) (citing United States v. Layne, 192 F.3d 556, 574 (6th Cir. 1999); United

States v. Harrod, 168 F.3d 887, 890 (6th Cir. 1999)) (emphasis added). Reversal is

warranted “only if the instructions, viewed as a whole, were confusing, misleading, or

prejudicial.” Id. (citation and internal quotations omitted).

The challenged instruction does not suggest a burden shift, and is not improper

as stated. We believe that a jury would think of “the very end of this case” as that time

when they have rendered a verdict and their service has ended.

In addition, even if the instruction were seen, standing alone, as implying a

burden shift, the court extensively instructed the jury that it was always the

Government’s burden to prove Defendant guilty beyond a reasonable doubt. There is

no risk of confusion or misconception to be found here.

D. Prosecutorial Misconduct

“When we review claims of prosecutorial misconduct, we determine whether the

prosecutor’s statements were both improper and flagrant.” United States v. Davis, 514

F.3d 596, 613 (6th Cir. 2008). Flagrancy is evaluated based on four factors: “(1) the

likelihood that the remarks of the prosecutor tended to mislead the jury or prejudice the

defendant; (2) whether the remarks were isolated or extensive; (3) whether the remarks

were deliberately or accidentally made; and (4) the total strength of the evidence against

No. 09-5730 United States v. Ham Page 13

the defendant.” Id. (quoting Broom v. Mitchell, 441 F.3d 392, 412 (6th Cir. 2006)).

Inappropriate but isolated statements do not warrant a new trial. The prosecutorial

misconduct must have been “so pronounced and persistent that it permeate[d] the entire

atmosphere of the trial.” United States v. Bond, 22 F.3d 662, 667 (6th Cir. 1994)

(quoting United States v. Payne, 2 F.3d 706, 712 (6th Cir. 1993)).

1. Opening Statements

Defendant argues—briefly—that he was prejudiced by the Government stating

during its opening statement that “on the armoire was some marijuana and some pills.”

Defendant stated no objection then, but argues now that the statement was irrelevant to

the charges against him and no evidence concerning marijuana and pills was introduced

at trial.

“Prosecutors should put forth only ‘proper arguments based on the evidence in

the record.’” Davis, 514 F.3d at 613 (quoting Broom, 441 F.3d at 412). “The purpose

of the opening statement of the prosecution is to outline broadly the facts of the case so

that the jury will understand the evidence as it unfolds.” United States v. Signer, 482

F.2d 394, 399 (6th Cir. 1973).

The prosecutor’s opening statement, to the extent that it referred briefly to

“marijuana and pills” purportedly found during the search was not later supported by

testimony. But we find no basis to conclude that the statement was flagrant, even though

it was, by one measure or another, a mistake. It was an isolated remark and, given that

the specifics of the search warrant execution would be a focus of the trial, there is no

indication that it was a deliberate attempt to inject inflammatory or damning “evidence”

that was never to be introduced. Moreover, the district court instructed the jury twice

that the statements and arguments of attorneys are not evidence. R. 41 at 68; R. 42 at

123. The prosecutor’s fleeting reference to “pills” and “marijuana” was, in this case, of

no more import than a few stray raindrops in a shower. It was in no way “so pronounced

and persistent that it permeate[d] the entire atmosphere of the trial.” Bond, 22 F.3d at

667. Accordingly, we find no reversible error.

No. 09-5730 United States v. Ham Page 14

2. Closing Arguments

Defendant argues that the Government improperly referred to the names of his

prior convictions—possession of cocaine with intent to sell and possession of a handgun

by a felon—during its closing argument.1 The Government referred to the names a total

of four times—twice during its initial closing argument and twice during its rebuttal.

Three of the instances are clearly in reference to the proper argument that

Defendant is a convicted felon, an element of the crime of being a felon in possession

of a firearm. Defendant cites no authority precluding the Government from referring to

properly admitted evidence that is essential to the Government’s case-in-chief during

closing arguments. Although statements that are permissible in isolation may, in

aggregate, demonstrate an improper purpose, we find no evidence of an improper

purpose in this case.

Nonetheless, the fourth instance, in which the Government appeals to the jury’s

“common sense,” comes close to the line. Based on the context, it is unclear whether the

Government was suggesting that the jury consider the prior convictions as propensity

evidence, evidence of an intent to distribute, or evidence that Defendant was a convicted

felon. The reference is sufficiently ambiguous that it is unlikely the jury would view this

as an invitation to consider the evidence for an improper purpose. Moreover, the district

court gave a limiting instruction explicitly informing the jury that they may consider the

prior convictions only as evidence relating to the element of Defendant having been

previously convicted of a felony. The general rule is that a jury is presumed to follow

the district court’s instructions, see United States v. Moreno, 933 F.2d 362, 368 (6th Cir.

1

During oral argument, Defendant clarified that his argument concerning his prior convictions

was based on a theory of prosecutorial misconduct. In his brief, Defendant argues that the probative value

of the evidence of his prior convictions is substantially outweighed by its prejudicial effect. This argument

also fails. The Government was obligated to prove beyond a reasonable doubt that Defendant had a

previous felony conviction. See United States v. Jones, 159 F.3d 969, 978 (6th Cir. 1998). Had Defendant

offered to stipulate to this element of the offense, it would have been an abuse of discretion for the district

court to reject it. Old Chief v. United States, 519 U.S. 172, 174 (1997). But he did not. The well-worn

Old Chief ball was in Defendant’s court, and he either failed or affirmatively decided to not act. The

prejudice inhering to a defendant in choosing such a course is potentially substantial, but there can be “no

question” that the probative value of the evidence of Defendant’s prior convictions is not substantially

outweighed by the danger of unfair prejudice. United States v. Grimmond, 137 F.3d 823, 833 (4th Cir.

1998) (citation omitted).

No. 09-5730 United States v. Ham Page 15

1991), and we see no reason why the jury in this case would have been unable to heed

these instructions. Accordingly, we find no plain error.

E. Sentencing

We also consider whether the consecutive component of Defendant’s 190-month

sentence was proper. Defendant was sentenced to 130 months for possession with intent

to distribute cocaine base, 120 months for being a felon in possession of a firearm (to run

concurrently with the 130 months), and 60 months for possessing a firearm in

furtherance of a drug trafficking offense. The 60-month consecutive sentence was

imposed under 18 U.S.C. § 924(c) as the mandatory minimum sentence for possessing

a firearm in furtherance of a drug trafficking offense. Defendant challenges the

imposition of this sentence under § 924(c), arguing that it is inconsistent with our

decision in United States v. Almany, 598 F.3d 238 (6th Cir. 2010), vacated, No. 09-1497,

2010 WL 2300485 (Nov. 29, 2010). After oral argument, the parties submitted

supplemental briefs in which they agreed that this sentence runs contrary to Almany’s

lesson that the mandatory minimum sentences provided in § 924(c) do not apply to

defendants who face longer mandatory sentences under other provisions of law. 598

F.3d at 242. The Government, however, challenged the validity of Almany and

requested the court defer decision until the Supreme Court released its decision on the

interpretation of § 924(c) in Abbott v. United States, No. 09-479, which was issued on

November 15, 2010.

As in this case, the sentence in Almany included a ten year mandatory sentence

for drug trafficking offenses and a five year mandatory sentence for possession of a

firearm in furtherance of a drug trafficking crime under 18 U.S.C. § 924(c)(1)(A). 598

F.3d at 241. Section 924(c) reads, in relevant part:

Except to the extent that a greater minimum sentence is otherwise

provided by this subsection or by any other provision of law, any person

who, . . . in furtherance of any such crime, possesses a firearm, shall, in

addition the punishment provided for such crime of violence or drug

trafficking crime - (i) be sentenced to a term of imprisonment of not less

than 5 years; (ii) if the firearm is brandished, be sentenced to a term of

imprisonment of not less than 7 years; and (iii) if the firearm is

No. 09-5730 United States v. Ham Page 16

discharged, be sentenced to a term of imprisonment of not less than 10

years.

18 U.S.C. § 924(c)(1)(A) (emphasis added). Upon indistinguishable facts, the Almany

panel held that the plain language of the statute proscribes application of the five year

mandatory minimum sentence together with a longer mandatory minimum sentence. 598

F.3d at 242. Quoting with approval the case of United States v. Whitley, 529 F.3d 150,

156 (2d Cir. 2008), the court noted that “we have repeatedly been instructed to give

statutes a literal reading and apply the plain meaning of the words Congress used.”

Almany, 598 F.3d 242. The court then interpreted the “except” clause reference to “any

other provision of law” to except from the mandatory minimum sentence of § 924(c)

those cases where a defendant receives a greater mandatory sentence under any law. Id.

The Supreme Court’s opinion in Abbott, however, held that the language in

§ 924(c) refers only to other provisions imposing longer mandatory sentences “for the

conduct § 924(c) proscribes, i.e., possessing a firearm in connection with a predicate

crime.” 131 S. Ct. 18, 26 (2010). Looking to the history of § 924(c) and the structure

of the section, the Court in Abbott construed the “except” clause to apply only to

provisions mandating a more severe sentence for the use of firearms in the commission

of a crime. Id. The Court examined the history of the statute, particularly noting the title

of the 1998 revision evinced a clear intent “to throttle the criminal use of guns.” Id. at

27. Considering the interaction with other statutes, the Court in Abbott emphasized the

“sentencing anomalies” that would result from a plain reading of the language “any other

provision of law.” Id. Under a literal interpretation of § 924(c), as in Almany, a

defendant facing a five-year mandatory sentence for distributing a small quantity of

drugs would face the additional mandatory seven years if he brandished a firearm,

whereas a similarly situated defendant who distributed a quantity sufficient to require

a ten-year mandatory sentence for distribution would be saved by the “except” clause.

Id. A more cabined application of the phrase “any other provision of law” was

determined necessary to “give[] effect to the statutory language commanding that all

§ 924(c) offenders shall receive additional punishment for their violation of that

provision.” Id. at 29.

No. 09-5730 United States v. Ham Page 17

After deciding Abbott, the Supreme Court granted certiorari and vacated Almany.

No. 09-1497, 2010 WL 2300485 (Nov. 29, 2010). Under Abbott, a mandatory minimum

sentence under § 924(c) must run consecutively with any mandatory sentences for

predicate crimes, as well as for other unrelated crimes. The “except” clause in § 924(c)

prohibits only the imposition of multiple consecutive mandatory sentences under § 924

for using a firearm in the commission of a violent or drug trafficking crime. 131 S. Ct.

at 29. Accordingly, a mandatory seven-year sentence for brandishing a firearm in the

commission of certain crimes would be merged into a mandatory ten-year sentence for

discharging it, and a mandatory five-year sentence for possessing a firearm in the

commission of certain crimes would be merged into a mandatory seven-year sentence

for brandishing it. Id. at 23.

III. CONCLUSION

Defendant’s five-year mandatory sentence under § 924(c) was proper even in

view of his ten-year mandatory sentence under § 841. The judgment of conviction of the

district court is AFFIRMED.