Petition for Writ of Certiorari — Matthew Shaffer, Petitioner v. United States

CASE NO.

IN THE

SUPREME COURT OF THE UNITED STATES

MATTHEW SHAFFER- PETITIONER

VS.

UNITED STATES OF AMERICA - RESPONDENT(S)

ON PETITION FOR A WRIT OF CERTIORARI TO

UNITED STATES COURT OF APPEALS

PETITION FOR WRIT OF CERTIORARI

Attorney for Petitioner, Matthew Shaffer

94 South Main Street

Dry Ridge, KY 41035

(859) 824-0500 telephone

(859) 824-0555 Facsimile

howelaw@fuse.net

LIST OF PARTIES

{ X ] All parties appear in the caption of the case on the cover page.

TABLE OF CONTENTS

OPINIONS BELOW............ccccccece ese ne een e renee eee eee een Eee REE EE Eee HEECE EE See

JURISDICTION........ 0... cccccccece eee rene cece een t een eden REEL AREER REDE EEE EERE RODE Een a cbt

CONSTITUTIONAL AND STATUTORY PROVISIONS INVOLVED.............:066

STATEMENT OF THE CASE........ccccccecc eee eer erence nee n renee ee nee nee e nen n eae ene eeee

REASONS FOR GRANTING THE WRIT ...........cccc ce ee ese cec ee ee nee ecteee en ee enone es

CONCLUSION. ......ccccececeeecnenen cere ence ec eeee eee eeeeeeeneeneeeeeeenen een aren ec ene eeeee

INDEX TO APPENDICES

APPENDIX A 6" Circuit Court of Appeals Opinion

APPENDIX B Judgment in a Criminal Case

APPENDIX C Order denying Petition for En Banc Rehearing

THE PETITION FOR CERTIORARI IS REQUESTED AS THE QUESTIONS PRESENTED

ARE OF EXCEPTIONAL IMPORTANCE AND OF CONSTITUTIONAL MAGNITUDE

1. THE TRIAL COURT ERRED IN FAILING TO CONDUCT AN EVIDENTIARY

HEARING CONCERNING THE AFFIDAVIT RELIED UPON IN OBTAINING THE

SEARCH WARRANT AND FURTHERMORE FAILING TO SUPPRESS THE

EVIDENCE FOUND.

2. LAW ENFORCEMENT OFFICER IMPROPERLY PRESENTING EXPERT

OPINION ON THE ISSUE OF FIREARMS IN FURTHERANCE OF DRUG ACTIVITY

3. THE COURT ERRED IN FAILING TO GRANT SHAFFER’S RULE 29 MOTION

CONCERNING THE FIREARMS IN THIS CASE.

4. SHAFFER WAS CONVICTED OF TWO SEPARATE CONSPIRACIES AS

OUTLINED IN THE INDICTMENT. THE GUIDELINES WERE CALCULATED

USING SENTENCING ENHANCEMENTS FOR ONE CONSPIRACY AND APPLYING

THOSE ENHANCEMENTS TO THE LARGER CONSPIRACY

AUTHORITIES

Cases

Franks vs. Delaware, 438 U.S. 154, 156 (1978).......::cccecceeeec nner e cence ete tanneeea tages

Illinois vs. Gates, 462 U.S. 213, 238 (1983)........ecceceeeeeeeees

Illinois v. Krull, 480 U.S. 340, 347, (1987)......0.ccseseeeeeeeeen ees

Mapp v. Ohio, 367 U.S. 643, (1961).......:ececeee eee eeeeee seen eens

United States vs. Abernathy, 843 F. 3d 243, 250 (2016)

United States v. Arnold, 486 F.3d 177, 183 (6th Cir.2007)..........cccsseeeeseneeeeesee neon

United States v. Boyd, 422 F.2d 791, 792 (6th Cir. 1970)...........sececeeese nen eee eeeee sane esene

United States vs Combs, 369 F.3d 925, 940 (6" Cir. 2004)

United States v. Frechette, 583 F.3d 374, 378 (6th Cir, 2009). ........cccceeeeeeeeeee eee eeee eens

United States v. Greene, 250 F.3d 471, 480-81 (6th Cir. 2001)..........eee cece eeece rere ten eeees

United States v. Grubbs, 506 F.3d 434, 436, 439 (6th Cir. 2007)...

United States v. Ham, 628 F.3d 801, 808 (6th Cir.2011......... cece eee

United States v. Hammond, 351 F.3d 765, 771-72 (6th Cir. 2003)

United States vs Harris, No. 09-5220, 2010 WL 3398872 393 Fed. App’x 314

(6" Cir. August 27, 2010) (unpublished) ..............--eceesceece eerste naan ener n ean enes 15

United States vy. Henson, 848 F.2d 1374, 1382 (6th Cir, 1988)........cccceceece eee neeen teen eens 10

United States v. Leary, No. 09-5418, 2011 WL 1810624 at *3, 422 F. App'x

502, 505 (6th Cir, 2011)... .cccceeeeeeseeeeeeeeeeeeeeeeceeeeeee sees aes aeeeeee een a neste tenes 23,24

United States v. Mackey, 265 F.3d 457, 460-461, 462 (6th Cir.2001)..........: cceereree eee 21

United States vs. May, 399 F. 3d 817, 823 (6" Cir. 2005)........cccccceceseeeeeeeeeeeereeees 9

United States vs. McPherson, 469 F.3d 518 (6 Cir, 2006).........ccccscceceeceeeeneeenraneeeenne 11

United States vs. Miner 774 F.3d 336 (6" Cir. 2014) at 348.0000... ccccccceeecceeeeeeeseeeeereees 17

United States vs. Miner 774 F.3d 336 (6! Cir. 2014) at 349.0... eceece cece eeeeeeee ww. 16

United States v. Nance, 40 Fed.Appx. 59, 67 (6th Cir.2002)..........:cecneceeee eee eeeeeneeees 24

United States v. Spikes, 158 F.3d 913, 923 (6th Cir. 1998) 10

United States vs Watson , 260 F. 3d 301, 309 (3d Cir. 2001) 15

Weeks y. United States, 232 U.S. 383, 398, (1914)... ccc cece c ees ee eee ee eee teen enna eats 11

United States vs. Brooks, 594 F.3d 488 (6" Cir. 2010 at 493........ccccceeeeeeseeeeeeeeeeeeeeeeeee 10

Statutes, Rules & Guidelines

18 U.S.C. § 922(g)1).. 0. cceceeccn ser eeee nee ee eee eee eee ta een ees eens neeeeeeeea ena eeeareneaetegee 18

18 U.S.C.8924. cc ceccccee reece neces cce seta eenenseeneee essere eeeees 18

18 U.S.C. §924 (0). .cecccceececcneec ce eeee sca enceeeneeeee ee eeeesaneseeaeeeeneaeeeeeeeeenes

28. U.S.C. §1254(1)

Fed. R. Evid. 704(b)

A DASSS Ga} DS I? 25, 26

Fed. Cr. Rule 29... ccccccc cece nee ne nee cen e eee een enon EA EEE OEE EE SESE EE EEE ERED EEE ER ERE 17, 18, 24

below.

[Xx]

IN THE

SUPREME COURT OF THE UNITED STATES

PETITION FOR WRIT OF CERTIORARI

Petitioner respectfully prays that a Writ of Certiorari issue to review the judgment

OPINIONS BELOW

For cases from federal courts:

The opinion of the United States court of appeals appears at Appendix A to the

petition and is

[ ] reported at 5 OF,

[ ] _ has been designated for publication but is not yet reported; or,

[X] is unpublished.

The opinion of the United States district court appears at Appendix B to the

petition and is

[ ] reported at 3 OF,

[ ] _ has been designated for publication but is not yet reported; or,

[X] is unpublished.

[X]

JURISDICTION

For cases from federal courts:

The date on which the United States Court of Appeals decided my case was July

8, 2019.

[ ] No petition for rehearing was timely filed in my case.

[X] A timely petition for rehearing was denied by the United States Court of

Appeals on the following date: July 22, 2019, and a copy of the order

denying rehearing appears at Appendix C.

[ ] Anextension of time to file the petition for a writ of certiorari was granted

to and including (date) on (date)

in Application No. A

The jurisdiction of this Court is invoked under 28 U.S.C. § 1254(1).

CONSTITUTIONAL AND STATUTORY PROVISIONS INVOLVED

Fourth and Sixth Amendment, United States Constitution

Fed R. Evid. 704(b)

STATEMENT OF THE CASE

In August of 2016 Jeff Price spoke with a source of information. A trash pull was

conducted based upon the information provided by the source by Officer Price and

Officer Weber on August 24, 2016 at__ High Street in Walton, Kentucky (Transcript,

R.188 PG. ID#2389 and 2477-2478). Two bags of trash were removed by the agents from

cans that were set out. (Id. at PG ID#2443 and 2484). In conducting the trash pull the

officers found mail addressed to Matt Shaffer and “a small, very small Ziploc bag inside

had like a small crystal substance, which we thought might be crystal

methamphetamine.” (/d. at PG ID#2391-2392). A field test was performed which

indicated that the substance contained methamphetamine. (Id. at PG. ID#2393). The

amount of methamphetamine in the bag was so miniscule, that it could not be seen with a

naked eye. (Id. at PG ID#2486) Based on what was found during the trash pull, Officer

Price testified “(t)he next step in the investigation was to then, at that point, do some

further background and to begin writing a search warrant.” (Jd. at PG ID#2397)

An affidavit for the search warrant was signed on August 24, 2016. (Response,

R.27 PG. ID#78-82) The affidavit did not include when in August the conversation took

place with the source of information. (/d.) Additionally, the Judge to whom the affidavit

was presented was informed the source of information “has provided information

regarding drug trafficking to the FBI that has been proven true and correct through

independent sources or investigation.” (/d.) Also set forth in the affidavit was that the

Confidential Informant had allegedly been to Defendant Shaffer’s residence on numerous

occasions. (/d.) However, there is no timeline set forth for when this person may have

been at the Defendant’s residence. (/d.)

On August 25, 2016, agents with the Northern Kentucky Drug Strike Force

(NKDSF) served the search warrant in Boone County, Kentucky, at___ High Street,

Walton, Kentucky. (Transcript, R.188 PG ID#2398) During the execution of the warrant,

agents located the Defendant in front of the residence with two associates, Donald J.

Bussinger and Dakota J. Lashley, who were detained pending further investigation.

Shaffer’s wife, Tasha L. Shaffer, was also detained as she exited the front of the

residence during the initial execution of the search warrant. All subjects were Mirandized

by Agent Webber in front of the residence, and all four remained in front of the

residence, as the search warrant was executed. The Defendant was escorted into the

residence and sat in a chair in the living room. Agents asked if there were any weapons,

illegal drugs, syringes or other dangerous items in the residence. The Defendant stated

there were no drugs in the home and the handgun belonged to Tasha and the rifle

belonged to Lashley. (Transcript, R.190 PG ID#3 166-3173)

Pursuant to the search, agents located a black plastic handgun case, with two

padlocks, in the front living room of the residence (Transcript, R.188, PG ID#2409-2410)

The Agents asked Shaffer what was inside the case. (Transcript, R.190, PG ID#3168)

Shaffer testified he replied, “to my understanding, it was money.” (/d.). The Agents did

not find a key to the case. (Transcript, R.188, PG ID#2412) Agents cut the padlocks from

the case and located methamphetamine, later determined to be 184 (gross weight) grams,

ina plastic bag. (Id. at PG ID#2506 and 2566) Additionally $8,920.00 in U.S. currency

was located inside the case (Id. at PG ID#2506, 2541) Various plastic baggies were

located in the case, along with a set of digital scales. (/d.)

Two firearms were discovered in the master bedroom of the residence. (/d. at PG

1D#2468). A Hi-Point 9mm rifle was located in the master bedroom closet, and a .38

caliber Taurus handgun, was located in a drawer of a plastic tote in the bedroom. (/d. at

PG ID#2435, 2431-2432)

Not a single person testified at trial that they witnessed Shaffer with physical

possession of the contraband or firearms found at__ High Street, Walton, Kentucky; that

he/she sold and/or bought contraband from Shaffer; or had discussion with Shaffer prior

to his arrest about trafficking.

The Defendant was arrested and incarcerated at the Boone County Detention

Center (BCDC). A decision to start conducting unclothed searches of every inmate that

was ever housed in Shaffer’s cell was made (Transcript, R.188 PG ID#2648), On

October 21, 2016, BCDC officials conducted an unciothed search of Defendant Shaffer.

(id) When Shaffer removed his underwear a small bag fell to the floor. (Id. at PG

ID#2649)

On March 9, 2017 a Second Superseding Indictment was filed adding the

additional counts as well as Michael Howell as a co-defendant. (Indictment, R.51 PG

1D#275-281) Howell testified he became involved in the alleged conspiracy at the BCDC

because Defendant Shaffer was an “intimidating person” and that Shaffer would have

“his people take care” of Howell if he didn’t go through with bringing drugs into the cell

(Transcript, R.188 PG, ID#2587) Fellow cellmate Ronnie Mink stated that Shaffer ran

the cell and what Shaffer said had to go on “you’d get the hell beat out of you”.

(Transcript, R.189 PG ID#2753)

The witnesses provided details of how the contraband was introduced into the

Boone County Detention Center. The testimony revealed a large amount of contraband

being hid in the rectum of the codefendant (Transcript, R.188 PG ID#2585), the

codefendant having alleged he was sexually assaulted (which is untrue) (Id. at 2612-

2613), and the codefendant struggling greatly over time in expelling the contraband

through a bowel movement. (Jd. at 2608) The resulting physical injuries to the

codefendant as a result of all of the above was a part of the Government’s case.

REASONS FOR GRANTING THE PETITION

1. THE TRIAL COURT ERRED IN FAILING TO CONDUCT AN

EVIDENTIARY HEARING CONCERNING THE AFFIDAVIT RELIED UPON

IN OBTAINING THE SEARCH WARRANT AND FURTHERMORE FAILING

TO SUPPRESS THE EVIDENCE FOUND.

The Defendant filed a Motion requesting a Franks vs. Delaware, 438 U.S. 154,

156 (1978) hearing to suppress all evidence that was obtained pursuant to a search

watrant executed August 25, 2016 at a house located at__ High Street, Walton,

Kentucky. (Motion to Suppress, R.21 PG. ID#50-54) The search warrant was signed by

Boone Circuit Court Judge James R. Schrand. (Response, R.27 PG ID#81-82) The Trial

Court overruled the Motion to Suppress and refused to grant an evidentiary hearing on

the issue. (Memorandum Opinion and Order, R.46 PG ID#240-256).

Defendant Shaffer challenged the search warrant on several grounds:

qd) . The search warrant affidavit references that in August of 2016, the Affiant

spoke with a source of information. The affidavit was signed on August 24, 2016. The

affidavit did not include when in August the conversation took place and what time frame

that the source of information was in Shaffer’s house to make the observations set out in

the affidavit.

(2) The affidavit without any detail summarily stated that the Source of

Information has provided information regarding drug trafficking to the FBI that has

proven true and correct through independent sources or investigation.

GB) The Search Warrant affidavit stated that Shaffer had a pending charge of

possession of methamphetamine in Kenton County, Kentucky which was true. However,

what was omitted was the charge was from eleven months earlier when he was arrested

ona theft case and had approximately 1/2 gram of methamphetamine in his wallet.

Shaffer was not at__ High Street, Walton, Kentucky at the time of his arrest on this

charge.

(4) The Search Warrant affidavit states Shaffer has two prior felony drug

trafficking convictions in Ohio. First, Shaffer had one prior trafficking conviction.

Second, the affidavit completely omits that the conviction was 14 years prior.

(5) The testimony at trial concerning the facts leading up to the application for

the Search Warrant came from two case agents, Jeff Price and Kris Weber and

demonstrates there were insufficient facts to support the probable cause requirement.

A trash pull was conducted by Officer Price and Officer Weber on August 24,

2016 at High Street in Walton, Kentucky. (Transcript, R.188 PG. ID#2389, 2477-

2478). Two bags of trash were removed by the agents from cans that were set out. (/d. at

PG ID#2478). Officer Price testified that in conducting the trash pull they found mail

addressed to Matt Shaffer and “a small, very small Ziploc bag inside had like a small

crystal substance, which we thought might be crystal methamphetamine.” (id. at PG

1D#2391-2392). He testified that a field test was performed which indicated that the

substance was crystal methamphetamine. (Id. at PG. ID#2393). The amount of drugs in

the bag was so miniscule, that it could not be seen with a naked eye. (Id. at PG ID#2486)

A magnifying glass had to be utilized to see a granule of the methamphetamine. (Id. at

PG. ID#2486).

Based on what was found during the trash pull, Officer Price testified “(he next

step in the investigation was to then, at that point, do some further background and to

begin writing a search warrant.” (Id. at PG. ID#2397) At this time, law enforcement did

not attempt to contact Shaffer to make any controlled buys. (/d. at Pg. ID#2445) None of

the above was outlined for the Judge’s review in the affidavit requesting the search

warrant. (Response, R.27 PG, ID#78-79)

Additionally, the Judge was informed the source of information “has provided

information regarding drug trafficking to the FBI that has been proven true and correct

through independent sources or investigation.” (Response, R.27 PG. ID#78-79.) The

reliability and credibility of the informant who provided information must be scrutinized

under the totality of the circumstances made known to the Judge issuing the warrant.

Hlinois vs. Gates, 462 U.S. 213, 238 (1983). An informant’s tip is considered to have

greater reliability and therefore be more supportive to a finding of probable cause if the

affidavit avers that the name of the confidential informant has been disclosed to the

issuing Judge. United States ys. May, 399 F. 3d 817, 823 (6th Cir. 2005). This was not

done in this case. Shaffer filed a Motion to Produce Identity of Confidential Informant.

(Motion to Produce, R.97 PG 1D#398-401) The Court overruled the Motion.

(Memorandum Order, R.125 PG ID#465-472) The name was never provided to the

Defendant at any point in the proceeding. The information concerning the Source of

Information is very important in this analysis considering the above. The informant’s

criminal history was relevant to his/her credibility and the Government's failure to

provide such information can attack the probable cause analysis. Whether the Source of

Information himself had pending criminal charges and how long the Source of

Information had been involved in working with law enforcement remained unanswered.

Also set forth in the affidavit for the search warrant was that the Confidential

Informant had allegedly been to Defendant Shaffer’s residence on numerous occasions.

(Response, R.27 PG. ID#78-79) However, there is no timeline set forth for when this

person may have been at the Defendant’s residence. (/d.) The Court could not make a

review of staleness as to the information as there were no dates or times provided within

the affidavit when the Source of Information had been to the Defendant’s home. In

United States vs. Abernathy, 843 F.3d 243, 250 (2016), the court explains:

“Nor do we consider “stale” information. United States y. Spikes, 158 F.3d

913, 923 (6th Cir. 1998). Whether information is stale depends on the

“inherent nature of the crime,” United States v. Henson, 848 F.2d 1374,

1382 (6th Cir. 1988), and turns on several factors including: (1) “the

character of the crime;” (2) “the criminal;” (3) “the thing to be seized;”

and (4) “the place to be searched.” United States v. Hammond, 351 F.3d

765, 771-72 (6th Cir. 2003) (quoting United States v. Greene, 250 F.3d

471, 480-81 (6th Cir. 2001)). “In the context of drug crimes, information

goes stale very quickly ‘because drugs are usually sold and consumed in a

prompt fashion.’ ” Brooks, 594 F.3d at 493 (quoting United States v.

Frechette, 583 F.3d 374, 378 (6th Cir. 2009)). Information is considered

stale and unreliable if it is impossible to tell from the affidavit when the

circumstances giving rise to probable cause occurred. See United States v.

Boyd, 422 F.2d 791, 792 (6th Cir. 1970).”

Clearly, a reading of the affidavit demonstrates that it is impossible to determine

when the source of information had been at___ High Street-be it one day or one year prior

to the information being shared with law enforcement.

In addition, the criminal history contained in the affidavit was not accurate in that

Mr. Shaffer had one prior trafficking case in Ohio not two. (Prior Conviction

10

Information, R.12, PG ID#28) Equally egregious was the omission that the conviction

had occurred 14 years prior to the request for the search warrant.

It was true that Shaffer had a pending possession of methamphetamine charge at

the time of the search. However, the officers omitted that the arrest leading to the

discovery of the methamphetamine in that case was not at the residence on High Street

where the search warrant was executed, that the amount was less than one gram (personal

use) (Transcript, R.189 PG 1D#2811) and the arrest was September 25, 2015. (Ud. at

2802) In United States vs. McPherson, 469 F.3d 518 (6" Cir. 2006), the defendant was

arrested for simple assault on the front porch of his residence and a search incident to

atrest was conducted revealing crack cocaine. Based upon the discovery of the

contraband the officers sought and received a search warrant for the home. This Court

held the information was insufficient to reach the probable cause standard to search the

home and reversed the conviction. Shaffer’s possession of methamphetamine is much

more attenuated than the facts of that case.

In summary, the trash pull alone cannot establish probable cause for a search

warrant. Abernathy, 843 F.3d 243 (2016) Additionally, the Court should have excised the

balance of the search warrant affidavit because the information was stale and incorrect.

The affidavit after excising the above when reviewed simply does not support probabie

cause to permit the search that revealed the contraband and guns found at the residence

on High Street. When evidence is obtained in violation of the Fourth Amendment, the

judicially developed exclusionary rule usually precludes its use in a criminal proceeding

against the victim of the illegal search and seizure.” Illinois v. Krull, 480 U.S. 340, 347,

(1987); Weeks v. United States, 232 U.S. 383, 398, (1914), overruled on other grounds by

11

Mapp v. Ohio, 367 U.S. 643, (1961). The Trial Court erred by failing to allow Shaffer to

receive an evidentiary hearing in this matter and by failing to suppress the evidence found

at the home located on High Street in Walton, Kentucky based upon the foregoing all in

violation of the Fourth Amendement.

2. LAW ENFORCEMENT OFFICER PRESENTING EXPERT OPINION ON

THE ISSUE OF FIREARMS IN FURTHERANCE OF DRUG ACTIVITY

It is common that many individuals who are charged with drug trafficking are also

charged with an offense of Possessing a Firearm in Furtherance of Drug Trafficking.

Consequently, an opinion of the Supreme Court is necessary to provide the parameters of

expert testimony concerning the nexus question. This case is illustrative of the

government’s improper use of law enforcement being posed the hypothetical question of

weapons being found in a home of the defendant and giving an expert opinion as to what

it means.

The testimony at trial showed that the guns in question were not located near the

drugs or quickly and easily available for use during a drug transaction. Officers Price,

Weber, and Taylor provided primarily the testimony at trial as to the location of the

methamphetamine and the guns found at__ High Street. The Officers testified that “a

black case” containing methamphetamine was found in the living room of the home, on

the floor, next to a recliner (Transcript, R.188 PG ID#2504). The front door of the home

opened immediately into the living room and the recliner set to the right of the room (/d.

at PG ID#2521). Agent Price testified that no guns were found in the living room (Id. at

PG ID#2468-2469). The Officers located a loaded pistol in a plastic tote in the master

bedroom (Jd, at PG ID#2427). A 9M rifle was recovered in the back of the master

bedroom closet. The rifle was not loaded (/d. at PG ID#2435-2436). The ammunition for

12

the rifle was located in a safe under the bed in the master bedroom (/d. at PG ID#2433).

Officer Taylor provided the follow testimony evidencing the layout of the home:

A. You would enter in the front door, into the living room, and the master bedroom was

immediately to the left, through the door.

Q. And in regard to that, where was the closet?

A. It was on the back wall.

Q. Okay. So as far as where the drugs are in this front corner, you'd have to walk

across the room to the master bedroom; is that correct? A. Yes, sir.

Q. Okay. Then you'd have to walk through the door to the master bedroom,

correct? A. Correct.

Q. Okay. Then you'd have to walk back to the closet where the gun was found, correct?

A. That's correct. (/d. at PG ID#2528)

Q. Okay. Can you give us -- how wide was that front room?

A. Probably 12 feet.

Q. Okay. And how far was it from the door back to that closet, the door going to the

master bedroom?

A. Probably eight feet.

Q. And then how deep was the closet where the gun was found?

A. Two feet.

THE COURT: 22 if you're adding. (Id. at PG ID#2529)

The firearms could not have been accessed quickly. If someone came to the home

to take the drugs or money, Shaffer would have to go to another room find the

ammunition, open the safe, put the ammunition in the rifle and come back to the living

room. In a like manner the handgun was located in the bottom of a tote hidden in the

bedroom.

Further, Abigail Wilder presented testimony concerning when the trips were made

to California in which the methamphetamine was alleged to be purchased. Ms. Wilder

testified that she has never seen the Defendant with a firearm on the trips and further

stated that the Defendant “never carried a gun.” (Transcript, R. 190 Page ID#2973)

Logically it would make little sense that the Defendant would travel across the United

States in a vehicle to bring drugs to Kentucky and never have a firearm in his possession,

13

however, would have one at__ High Street to protect drugs and money locked in a case

in the living room.

At trial, the government presented the following questions to the officer:

Q. Now, from your training and experience, when you execute a search warrant ona

home and you find a large amount of drugs and you find guns, what is that indicative of,

from your training and experience?

MR. HOWE: Objection.

THE COURT: Same objection?

MR. HOWE: Yes.

THE COURT: Overruled, and I'll make some findings later about this.

BY MR. BRACKE:

Q. Go ahead.

A. Throughout my law enforcement career, especially with methamphetamine, guns are

prevalent. They're meant to protect the assets of the trafficker, including

methamphetamine, any valuables, such as cash or whatever they have.

Q. From your training and experience, individuals who are unemployed, don't have a

legitimate source of income, don't have obvious valuable assets, if they have a large

amount of drugs and guns, would you expect them to be just a personal user? A. No.

MR. HOWE: Objection, Judge. Move to strike. Same objection.

THE COURT: Overruled, denied. (/d. at Pg. ID# 3040-3041)

Q. The presence of the proximity of the guns to the drugs that were seized in the house

and the other items of drug paraphernalia in the house, from your training and experience

in this case, what is that consistent with?

MR. HOWE: Judge, objection. That's ultimately a jury question.

THE COURT: Overruled.

MR. BRACKE: Thank you.

BY MR. BRACKE:

Q. The proximity here, what's that consistent with?

A. Drug trafficking.

Q. What about in terms of the decision about whether the guns are possessed for

protection of drugs and assets or whether they're protected -- or they're just a

collection or for some other innocent purpose? A. I don't believe they're for an

innocent purpose.

Q. I'm not asking for your opinion about it. I'm asking just as a factor -- MR.

HOWE: Objection. Move to strike all this.

THE COURT: Overruled. He can give an opinion — why don't we approach, (Sidebar

conference.) (Id. at PG ID# 3044-3045)

During the sidebar conference the Court observed the following among other

things:

14

THE COURT: One thing I did want to note, Rule 704(b), in reviewing this, and this issue

has come up in other trials in the past. Of course, this individual witness cannot state an

opinion about whether the defendant did or did not have a mental state or condition that

constitute an element of the crime charged or a defense. You said those are matters for

the jury. Ultimately, his intent is a matter for the jury. That's pursuant to 704(b). Do you

have a case, specifically, or do you have a Sixth Circuit case that says that applies equally

to whether or not something was possessed for personal use or for distribution, whether

or not something was possessed in furtherance of or not in furtherance of? What I'm

saying, Mr. Bracke, does that 704(b) apply to his opinions on those other issues? (/d. at

PG ID #30503051)

“Rule 704(b) prevents an expert witness from testifying that a defendant in a

criminal case did or did not have the requisite mental state or condition constituting an

element of the crime charged, as the ultimate issues are matters for the trier of fact.”

United States vs Combs, 369 F.3d 925, 940 (6 Cir. 2004) Possession with the Intent to

Transfer a Controlled Substance and Possession of a Firearm in Furtherance of a Drug

Trafficking offense are both specific intent crimes. “Rule 704(b) may be violated when

the prosecutor’s question is plainly designed to elicit the expert’s testimony about the

mental state of the defendant, or when the expert trigger’s the application of Rule 704(b)

by directly referring to the defendant’s intent, mental state or mens rea.” United States vs

Watson , 260 F. 3d 301, 309 Gd Cir. 2001) cited in United States vs Harris, 09-5220,

2010 WL 3398872, 393 Fed. App’x 314 (6" Cir, 2010) (unpublished).

In United States vs Harris, 09-5220, 2010 WL 3398872, 393 Fed.Appx. 314 (6"

Cir. 2010) (unpublished) the Court found that the following question and answer were in

violation of Fed. R. Evid. 704(b):

Q. Based upon your review of the evidence, discussions that you’ ve had, your training,

your experience, do you have an opinion, based upon reasonable investigative certainty

as a narcotics investigator, regarding the connection between these guns and the crack

cocaine that was found in the residence with the guns?

A. Ido.

Q. What is that opinion?

A. I believe the guns were used to protect drugs and their proceeds.

15

In this case the question was asked:

Q. Now, from your training and experience, when you execute a search warrant on a

home and you find a large amount of drugs and you find guns, what is that indicative of,

from your training and experience?

MR. HOWE: Objection.

THE COURT: Same objection?

MR. HOWE: Yes.

THE COURT: Overruled, and I'll make some findings later about this.

BY MR. BRACKE:

Q. Go ahead.

A. Throughout my law enforcement career, especially with methamphetamine, guns are

prevalent. They're meant to protect the assets of the trafficker, including

methamphetamine, any valuables, such as cash or whatever they have. (Transcript, R.190

PG ID# 3040-3041)

The two are nearly identical in question and answer. The term “meant” is used

within the answer thus referencing the intent of having guns present is to protect assets,

drugs, ie. “in furtherance of”. When asked in the context of the trial with the jury

knowing that guns were found at the High Street property then the opinion was to

Shaffer’s intent on having them to protect the methamphetamine found.

As outlined above, the officer was asked specifically about the search of Shaffer’s

house and the proximity of the drugs to the guns. The nexus requirement for the 18

U.S.C. 924(c) count was highly contested and this question and answer prejudiced the

jury in making its determination on that issue. This is a jury question.

The Opinion of the Sixth Circuit Court of Appeals in this case states:

“Here, McKinley arguably crossed the line of permissibility. See Miner, 774 F.3d.

at 349 (“[T] the government should not spoon-feed its theory of the case to the jury

through a government agent.” (internal quotation marks, alternations and citations

omitted)).” (Document 27-2 Opinion of the Court page 11)

The Opinion then states:

“However, even if we assume that all the testimony about which Shaffer

complains violated Rule 704(b) and was erroneously admitted, the error was harmless.

See id. (finding error harmless when “voluminous evidence was properly admitted at trial

indicating” guilt). Absent McKinley’s testimony, considerable evidence supported an

inference of Shaffer’s intent and guilt, including his own admissions and the wide variety

16

of paraphernalia associated with drug trafficking found in his home. And, the district

court mitigated any potential harm by issuing clear and comprehensive jury instructions

about expert testimony and permissible inferences regarding Shaffer’s mental state. Thus,

we cannot find that any potentially impermissible testimony “affected the outcome of the

trial. Miner, 774 F.3d at 348.” (Document 27-2 Opinion of the Court page 11)

Shaffer contends that the error was not harmless and the Opinion of the court as to

the voluminous evidence outlined may go to drug trafficking but not the possession of the

firearm in furtherance of drug trafficking. There was not voluminous evidence of that

offense.

Shaffer contends that at no time should it be permissible to present the facts of a

case outlining the proximity of the guns and drugs concerning a 924(c) count to an officer

and ask for an opinion as to what this indicates (especially if asked were the guns for

some innocent purpose) The question cannot be answered without the officer expressing

an opinion as to specific intent of the defendant charged. It is recognized that discretion is

allowed in some instances as to common practices of persons charged with drug

trafficking, but never as to specific intent. An expert witness is to provide information to

the jury on facts that are uncommon fo an ordinary layperson, not provide an opinion as

to the guilt of the accused. It is respectfully requested that this Court grant the Petition

for Certiorari to establish that not only in this case, but all 924(c) cases, that officers

should not be asked the specifics of a search of the house, the specifics of a particular

defendant, the specifics of where drugs were located and guns were located and then give

an opinion of what this means as to any nexus or connection or if they were for innocent

purposes.

3. THE COURT ERRED IN FAILING TO GRANT SHAFFER’S RULE 29

MOTION CONCERNING THE FIREARMS IN THIS CASE.

17

At the close of the Government’s case, the Defendant moved for a judgment of

acquittal pursuant to Fed. Cr. Rule 29 on all counts (including Counts II, and IV) on the

grounds that there was insufficient evidence presented that the Defendant possessed the

guns and that there was a sufficient nexus to drug trafficking. (Transcript, R.190 PG

1D#3077) The Court denied the Motion finding that there was sufficient evidence to

establish there was a nexus between the firearms and the drugs and also sufficient

evidence to establish possession (Id. at PG. ID# 3080, 3081). The Defendant renewed the

motion at the close of his case. (Jd. at PG ID#3221) The Motion was denied. (/d. at PG

1D#3221-3222)The Defendant renewed the Motion at the close of the entire case (Id. at

PG 1D#3236) The Motion was denied. (/d. at PG ID#3236)

The trial court erred in denying the Defendant’s Motion for a judgment of

acquittal because there was insufficient evidence to prove that Defendant Shaffer

possessed the firearms in furtherance of a drug trafficking crime and possessed the

firearms as a convicted felon.

First, the Government failed to establish that Defendant Shaffer possessed a

firearm.

The Government failed to establish that Defendant Shaffer possessed a firearm.

Under 18 U.S.C. § 922(g)\(1) and 18 U.S.C.§924 , a defendant may be convicted based on

either actual or constructive possession of a firearm. Actual possession requires that the

defendant have “immediate possession or control” of the firearm. United States v.

Grubbs, 506 F.3d 434, 436 (6th Cir. 2007) citing United States v. Arnold, 486 F.3d 177,

183 (6th Cir.2007). There was no evidence presented that Defendant Shaffer had

immediate possession or control of the firearms.

18

Pursuant to the testimony of Officer Taylor, the Defendant was never observed in

the home at _ High Street where the firearms were found. (Transcript, R.188 PG

1D#2518) When the Defendant was arrested he was in the front yard of __ High Street.

(id.) Further, Officer Price testified that he did not review the lease for the property, did

not talk to the landlord, or interview any neighbors so he could not say whether

Defendant Shaffer was on the lease to the home or not. (Transcript. R.188 PG ID#2446)

Abigail Wilder testified that Defendant Shaffer had spent just about every day with her.

(Transcript R.190 PG ID# 2976) Defendant Shaffer testified that he was not staying at

the home very often (Id. at 3192)

There was no testimony presented that Defendant Shaffer was ever observed with

any gun much less the pistol and rifle as charged in the indictment. The mere fact that

the police arrested Defendant Shaffer in front of a home where inside firearms were

found is not sufficient to support a conviction for actual possession.

“Constructive possession exists when a person does not have possession but

instead knowingly has the power and the intention at a given time to exercise dominion

and control over an object, either directly or through others.” United States v. Grubbs.

506 F.3d 434, 439 (6th Cir. 2007) “[I]t is without question that “[p]resence alone’ near a

gun ... does not ‘show the requisite knowledge, power, or intention to exercise control

over’ the gun to prove constructive possession.” Jd. citing United States v. Arnold, 486

F.3d 177, 183 (6th Cir. 2007). “[O]ther incriminating evidence, coupled with presence” is

needed to “tip the scale in favor of sufficiency.” Jd. “Furthermore, it is not enough that

the defendant possessed a firearm at some unidentified point in the past; the evidence

19

must prove that the defendant possessed the same handgun “identified in the indictment.”

Id.

In United States v. Grubbs, 506 F.3d 434 (6th Cir. 2007), the Defendant was

convicted of being a felon in possession of a firearm. A handgun was found after a search

warrant was executed on the Defendant’s Mothers home in which the Defendant made

periodic visits too. Jd. at 436. The Defendants brother testified that the handgun was his

weapon and instructed officers that they could find the weapon under a pillow in the

room where he sleeps. Jd, at 437. At trial, the Government presented testimony from the

Defendant’s neighbor, Mr. Jones, concerning an altercation between the parties where the

Defendant was observed with a gun. Jd. On appeal, the Court reversed the trial court’s

decision, and directed that a judgment of acquittal be entered. The Court in explaining its

decision stated that the testimony presented by the witness at trial “was too vague for the

jury to reasonably conclude that the gun found in (the Grandmother’s) house was the

same firearm that Grubbs allegedly used to threaten Jones.” Jd. at 443.

Similarly, in this case Defendant Shaffer did not own the home where the guns

were found. There was not testimony presented that Defendant Shaffer was even on the

lease to the home. Testimony was presented by Defendant Shaffer that the Defendant was

staying elsewhere. There was no testimony presented by the Government that Defendant

Shaffer ever possessed any guns, much less the pistol and rifle named in the indictment.

In fact, evidence was presented to the contrary. A friend had brought the rifle to battle

raccoons and Shaffer’s wife had bought the handgun for home protection. (Transcript, R.

190, PG 1D#3012, 3073) Shaffer testified when asked on the day of the arrest if any

20

firearms were in the home by the officers that he had to ask his wife Tasha. (Transcript,

R. 190, PG ID #3166, 3169) and referred to the rifle as a shotgun. (/d. at PG ID#3195)

The Government failed to provide sufficient evidence that the guns were used

“in furtherance” of the crime charged.

To prove the “in furtherance” element of the statute, the United States must prove

“a specific nexus between the gun and the crime charged.” United States v. Ham, 628

F.3d 801, 808 (6th Cir.2011). “The term ‘furtherance’ should be understood in its

ordinary or natural meaning, which ... is ‘a helping forward: advancement, promotion.’ In

other words, the weapon must promote or facilitate the crime.” United States v. Mackey,

265 F.3d 457, 460-461 (6th Cir.2001). In deciding whether the “in furtherance” element

has been proved, the Court considers whether the gun was “strategically located so as to

be quickly and easily available for use during [a drug] transaction.” Mackey, 265 F.3d 45

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.” Ham, 628 F.3d at 808—

09. “[T]he possession of a firearm on the same premises as a drug transaction would not,

without a showing of a connection between the two, sustain a § 924(c) conviction.”

Mackey, 265 ¥ 3d at 462.

There was no evidence presented at trial that established a specific nexus between

the guns found at__ High Street and the crime of trafficking methamphetamine. First, the

testimony demonstrated at trial showed that the guns were not located near the drugs or

quickly and easily available for use during a drug transaction. Officers Price, Weber, and

Taylor provided primarily the testimony at trial as to the location of the

methamphetamine and the guns found at__ High Street. The Officers testified that “a

21

black case” containing methamphetamine was found in the living room of the home, on

the floor, next to a recliner (Transcript, R.188 PG ID#2504). The front door of the home

opened immediately into the Living Room and the recliner set to the right of the room

(Id. at PG ID#2521) Agent Price testified that no guns were found in the living room (Jd.

at PG ID#2468-2469). The Officers located a loaded pistol in a plastic tote in the master

bedroom. (/d. at PG ID#2427). A 9M rifle was recovered in the back of the master

bedroom closet. The rifle was not loaded (Id. at PG ID#2435-2436) The ammunition for

the tifle was located in a safe under the bed in the master bedroom (/d. at PG ID#2433)

Officer Taylor provided the follow testimony evidencing the layout of the home:

A. You would enter in the front door, into the living room, and the master bedroom was

immediately to the left, through the door.

Q. And in regard to that, where was the closet?

A. It was on the back wall.

Q. Okay. So as far as where the drugs are in this front corner, you'd have to walk across

the room to the master bedroom; is that correct?

A. Yes, sir.

Q. Okay. Then you'd have to walk through the door to the master bedroom, correct?

A. Correct.

Q. Okay. Then you'd have to walk back to the closet where the gun was found, correct?

A. That's correct. (id, at PG ID#2528)

Q. Okay. Can you give us -- how wide was that front room?

A. Probably 12 feet.

Q. Okay. And how far was it from the door back to that closet, the door going to the

master bedroom?

A. Probably eight feet.

Q. And then how deep was the closet where the gun was found?

A. Two feet.

THE COURT: 22 if you're adding. (Ud. at PG ID#2529)

The firearms could not have been accessed quickly. If someone came to the home

to take the drugs or money, Shaffer would have to go to another room find the

ammunition, open the safe, put the ammunition in the rifle and come back to the living

22

room. Ina like manner the handgun was located in the bottom of a tote hidden in the

bedroom.

Further, Abigail Wilder presented testimony concerning when the trips were made

to California in which the methamphetamine was alleged to be purchased. Ms. Wilder

testified that she has never seen the Defendant with a firearm on the trips and further

stated that the Defendant “never carried a gun.” (Transcript, R. 190 Page ID#2973)

Logically it would make little sense that the Defendant would travel across the United

States in a vehicle to bring drugs to Kentucky and never have a firearm in his possession,

however, would have one at___ High Street to protect drugs and money locked in a case

in the living room.

Lastly, an officer’s opinion that there was a nexus between the firearms and

contraband is insufficient to avoid a Rule 29 Motion for Acquittal. In United States v.

Leary, No. 09-5418, 2011 WL 1810624 at *3, 422 F. App’x 502, 505 (6th Cir. 2011), the

Defendant, amongst other charges, was charged and convicted with possession of

firearms in furtherance of a drug trafficking crime. Testimony was presented at trial by

the Officers conducting the search warrant that in a closet the officers found a blue duffel

bag containing three firearms: a black, Jennings .22 handgun; and AK-47 assault rifle,

and an SKS assault rifle. Jd. Also found in the same closet was a bag of crack cocaine. Jd.

The Government presented an expert at trial who testified that the amount of drugs found

and the presence of guns were both indicative of an intent to distribute the drugs, as

opposed to mere personal use. Jd. at *8. On appeal, the Court reversed the trial court’s

decision finding that the evidence was insufficient to support the conviction. In

explaining their decision, the Leary Court explained:

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“With respect to the type of weapon, [the expert] testified that “[y]ou'll find

firearms, handguns and regular guns more commonly with a trafficker than you

will a user,” but this testimony helped to establish only that the presence of guns

indicated that the drugs were intended for distribution, and that drug dealers often

need to protect themselves from other drug dealers and those who seek the money

that drug dealers usually keep in their possession. R. 55-56 (Trial Tr. 128-29). It

does not establish a “specific nexus” between these guns and the small amount of

drugs found here; instead, it establishes only a general one, suggesting that drug

dealers generally possess guns for protection from drug users and other drug

dealers, not that the guns in this case were possessed for such drug-dealing-related

protection. See United States v. Nance, 40 Fed.Appx. 59, 67 (6th Cir.2002)

(unpublished opinion) (holding that a drug-agent's testimony “that drug traffickers

usually have guns to facilitate trafficking” does not establish “specific facts

linking [the] guns to the drugs found on [the defendant's] person”). There was no

testimony to illuminate for the jury whether these particular weapons were likely

present to facilitate drug trafficking. Similarly, there was no testimony linking

Leary's unlawful possession of these weapons to the “specific nexus” needed to

prove the facilitation of drug trafficking.”

Id, at *9, There is even less of a connection between the drugs found and the firearms in

this case. They were not located in the same room. Testimony was not presented that ever

established Defendant Shaffer possessing the firearms, much less connecting them to

drug activity. In fact, Abigail Wilder testified that Defendant Shaffer, “never carried a

gun.” (Transcript, R.190 Page ID#2973)

Like Leary, the only evidence produced by the Government in this case

connecting the firearms to drug trafficking was provided by an Agent’s testimony. This

was insufficient to establish a specific nexus and as such the Trial Court erred when it

denied Defendant Shaffer’s Rule 29 Motion. This Court should grant the Petition for

Certiorari to established a defined nexus between the firearms and contraband

4, SHAFFER WAS CONVICTED OF TWO SEPARATE CONSPIRACIES

AS OUTLINED IN THE INDICTMENT. THE GUIDELINES WERE

CALCULATED USING SENTENCING ENHANCEMENTS FOR ONE

CONSPIRACY AND APPLYING THOSE ENHANCEMENTS TO THE LARGER

CONSPIRACY

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This Court should grant the Petition for Certiorari concerning the issue of specific

enhancements being applied in one conspiracy which were not applicable to the other

conspiracy. The Sixth Circuit Court of Appeals in its Opinion did not cite to any case

authority on this issue, other than USSG 3D1.2. The Commentary to the Guidelines is no

more helpful. This Court should enter an opinion as to how to apply the Guidelines in

that scenario.

Counts I and II set out a conspiracy that Mr. Shaffer was found guilty of being

involved which resulted in relevant conduct of a base offense level of

34.(Sentencing R.180 PG ID#1871) Within the Count I conspiracy it is not alleged that it

involved a detention facility. Shaffer also contends that the leadership enhancement was

only for Counts V, VI and VIL. The jail conspiracy described in Count V, VI and VII was

for an amount of contraband (10 grams) that standing alone would have resulted in a base

offense level of 24. It was for this conspiracy that the leadership role and the detention

facility enhancement were used. (PSR, paragraph 46) If the Court calculated the

guidelines on this offense alone it would result in a level 30 (base offense 24 plus 6

points for the two enhancements). The sentence for Counts V, VI, and VII standing alone

would be 151-188 months if the enhancements were applied.

However, the Court applied the six point sentencing enhancements for the

leadership role and detention center for the Counts V-VII conspiracy conviction to the

weight of the contraband in the Count I conspiracy resulting in a sentence that was

greater than should be considered under the guidelines. The Court ultimately sentenced

Mr. Shaffer to a “bottom of guideline” calculation of 420 months (360 months plus 60

months). (Judgment, R.167 PG ID#799) A six point enhancement from a level 24 at

Criminal History V goes from a bottom of the guideline calculation of 92 months to a

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