Appeal from the United States District Court for the Southern District of Iowa.
The opinion of the court was delivered by: Smith, Circuit Judge.
Submitted: January 14, 2010
Before MELLOY, SMITH, and COLLOTON, Circuit Judges.
Ronald Andrew Buchanan was charged in a four-count indictment with possession with the intent to distribute at least 50 grams or more of a mixture and substance containing cocaine base, in violation of 21 U.S.C. §§ 841(a)(1) and (b)(1)(A)(iii) ("Count 1"); possession with intent to distribute a mixture and substance containing cocaine, in violation of 21 U.S.C. §§ 841(a)(1) and (b)(1)(C) ("Count 2"); being a felon in possession of a firearm, in violation of 18 U.S.C. §§ 922(g)(1) and 924(a)(2) ("Count 3"); and notice of forfeiture of all the firearms and ammunition involved in the commission of the foregoing offenses pursuant to 18 U.S.C. § 924(d), 21 U.S.C. § 853, and 28 U.S.C. § 2461(c) ("Count 4"). The jury convicted Buchanan on Counts 1 and 2, but acquitted him on Count 3. The district court*fn1 sentenced Buchanan to 300 months' imprisonment. On appeal, Buchanan argues that the district court erred in (1) admitting testimony regarding the numeric inscription on a safe where the narcotics were found, in violation of the rule against hearsay and the best evidence rule; (2) denying his objections to the unnoticed expert testimony of latent fingerprint expert John Kilgore, in violation of Federal Rule of Criminal Procedure 16(a)(1)(g); and (3) denying his motion for judgment of acquittal, as there was insufficient evidence to support his conviction. We affirm.
As part of a narcotics investigation, law enforcement observed Buchanan at two residences-930 65th Street, Windsor Heights, Iowa ("the 65th Street residence") and 1933 East 33rd Street, Des Moines, Iowa ("the 33rd Street residence") in the fall of 2007. Law enforcement believed that the 65th Street residence was a "stash house"-a place in which drug dealers store money, drugs, and firearms. Law enforcement officials saw Buchanan in three separate vehicles at both addresses-a Chevy Tahoe, a Ford Explorer, and a Chevy Blazer.
Law enforcement executed search warrants for the two residences, the Chevy Blazer, and Buchanan's person on November 2, 2007, at 10 a.m. At that time, officers observed Buchanan leaving the 33rd Street residence in the Chevy Blazer, proceeding to the 65th Street residence, entering that residence, and departing a short time later. Officers stopped the Chevy Blazer. A drug dog at the scene did not alert on the vehicle. Officers read Buchanan his Miranda rights and informed him of the search warrants. Buchanan told the officers that he did not live at the 65th Street residence and that it was his girlfriend's home. According to Buchanan, he had been living at the 33rd Street residence for the previous four to five months.
Officers executed the search warrant on the Chevy Blazer and Buchanan's person. Officers discovered drug notes and a set of keys-including one key bearing the number "2010" upon it-on Buchanan's person. They also found a knotted baggie top on the Chevy Blazer's floorboard, which they considered to be drug-packaging related.
Further investigation determined that the "2010" key matched a large safe under the stairs in the basement of the 65th Street residence. This safe also bore the number "2010" on it and contained within it a manual bearing the same number. The large safe also contained a lease agreement for the 65th Street residence, signed in September 2007, listing Buchanan and Traci Smith, Buchanan's girlfriend, as tenants, a photo of Buchanan, and an Iowa vehicle title for the Chevy Blazer in Buchanan's name. Officers did not seize the safe. Buchanan also had the key to another safe in his wallet, which matched a small personal document safe also under the stairs at the 65th Street residence.
Traci Smith was at the 65th Street residence when law enforcement executed the search warrant. Smith had a previous conviction for possession of crack with intent to distribute. Officers discovered the keys to the small document safe in Smith's bedroom. Smith's documents were in that safe. The keys found in Smith's bedroom did not fit the large safe.
A mattress was located on the floor at the foot of the stairs to the basement. The area under the stairs had been finished off to include a storage room. A drug dog "indicated" to the rear of this storage area under the stairs near the large safe. The large safe contained 199.52 grams of cocaine, 176.05 grams of cocaine base, $18,000 in currency, and two digital scales. The quantities of drugs seized were consistent with distribution. The safe also contained other items consistent with distribution-the currency, the digital scales, baggies, red and black rubber bands for bundling currency, and razor blades for shaving larger rocks of crack to smaller rocks for distribution. In the kitchen, officers found a digital scale with three boxes of baggies.
One of the digital scales from the large safe was submitted for fingerprint analysis. Latent fingerprints were lifted from the scale that matched Buchanan. Those latent prints were found on the surface of the scale where items would be weighed.
Officers also found surveillance camera equipment on a shelf; a box of Remington nine-millimeter ammunition under the stairs; a loaded Cobray--11 nine-millimeter semi-automatic pistol in the basement under a mattress; a pair of size 44 men's blue jeans on the kitchen table; and jean shorts also in size 44 in a bag in the basement. According to a deputy jailer, Buchanan's personal effects at the jail included size 42 blue jeans.
Based upon the items seized, law enforcement determined that the 65th Street residence was actually a stash house. Buchanan was subsequently charged in the four-count indictment.
Prior to trial, Buchanan moved to exclude the identifying features of the safe on the grounds that testimony describing the safe's interior inscription would be hearsay and not the "best evidence." The district court denied Buchanan's motion.
Buchanan moved for judgment of acquittal at the conclusion of the government's case and renewed it at the close of all the evidence. The district court denied Buchanan's motion.
The jury convicted Buchanan of Counts 1 and 2 and acquitted him on Count 3. Thereafter, Buchanan filed a motion for a new trial, arguing that (1) the district court erroneously permitted testimony regarding the identifying features of the safe and allowed law enforcement to testify that the key allegedly found in Buchanan's possession matched the safe; (2) admission of the testimony regarding the identifying features of the safe violated Buchanan's substantial rights, specifically his right to a fair trial under the Sixth and Fourteenth Amendments to the United States Constitution; and (3) insufficient evidence existed that Buchanan possessed the narcotics because no drugs were found on his person and no evidence established his unrestricted access to the 65th Street residence. The district court denied Buchanan's motion for a new trial.
On appeal, Buchanan argues that the district court erred in (1) admitting testimony regarding the numeric inscription on the safe where the narcotics were found, in violation of the rule against hearsay and the best evidence rule; (2) denying his objections to the unnoticed expert testimony of latent fingerprint expert John Kilgore, in violation of Federal Rule of Criminal Procedure 16(a)(1)(g); and (3) denying his motion for judgment of acquittal, as there was insufficient evidence to support his conviction.
A. Admission of Testimony Concerning Numeric Inscription on the Safe
According to Buchanan, the district court erroneously permitted law enforcement officers to testify regarding the writings contained within the safe. Buchanan characterizes the government's case as asserting that these writings provided the number of the key that allegedly matched the safe. The government contended the key, purportedly discovered on Buchanan's person, had an inscription matching the key number inscribed in the interior of the safe. The government also alleged that the key matched the safe in which the drugs were discovered. Buchanan contends that the admission of such testimony is inadmissible hearsay and violates the best evidence rule.
"We review a district court's evidentiary rulings for clear abuse of discretion, reversing only when an improper evidentiary ruling affected [a party's] substantial rights or had more than a slight influence on the verdict." United States v. Two Shields, 497 F.3d 789, 792 (8th Cir. 2007) (citation ...