United States of America v. Jerry O. Twaddle

UNITED STATES COURT OF APPEALS
FOR THE TENTH CIRCUIT
_________________________________
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
JERRY O. TWADDLE,
Defendant - Appellant.
No. 20-2128
(D.C. No. 5:17-CR-02690-RB-3)
(D. N.M.)
_________________________________
ORDER AND JUDGMENT*
_________________________________
Before TYMKOVICH, Chief Judge, HARTZ, and MORITZ, Circuit Judges.
_________________________________
In October of 2016, Jerry Twaddle sold a small packet of
methamphetamine to a confidential informant. Unknown to Mr. Twaddle, the
confidential informant captured the sale on video. But the government did not
bring charges for this transaction—instead, it began to build a larger case against
Twaddle.
Almost a year later, law enforcement intercepted texts between Twaddle
and a coconspirator. The two agreed that Twaddle would purchase two pounds of
methamphetamine that night. Police followed Twaddle to the site of the sale and
* This order and judgment is not binding precedent, except under the doctrines
of law of the case, res judicata, and collateral estoppel. It may be cited, however, for
its persuasive value consistent with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1.
FILED
United States Court of Appeals
Tenth Circuit
November 4, 2021
Christopher M. Wolpert
Clerk of Court
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watched him pick up a package. As Twaddle drove away, police signaled for him
to pull over. Twaddle fled, leading police on a high-speed car chase and only
stopping when spike strips destroyed his tires. The officers arrested Twaddle and
found the two pounds of methamphetamine he threw near the highway. They
then searched Twaddle’s home and found drug paraphernalia and firearms.
Twaddle was indicted for distribution of methamphetamine. He went to
trial, and the jury found him guilty on all counts. At sentencing, the district court
applied enhancements for reckless endangerment, possession of firearms, and an
aggravating role in the conspiracy. Twaddle’s minimum guideline sentence was
30 years. But the district court made a substantial downward deviation from the
guideline range, sentencing Twaddle to 20 years.
Twaddle now appeals, arguing that the district court erred in admitting
evidence of his prior drug transaction, the two pounds of methamphetamine, and
the firearms found in his shed. He also appeals the application of the three
sentencing enhancements. We affirm each of the district court’s rulings.
I. Background
In October 2016, the government obtained the video of Twaddle
distributing an ounce of methamphetamine. It did not charge this conduct, but it
used the video to begin building a larger case against Twaddle. Over the next
year, the government obtained wiretaps of Twaddle’s phone and placed a
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surveillance camera outside his residence. 1 The wiretaps revealed that Twaddle
frequently discussed the purchase and sale of methamphetamine with co-
defendant Marco Martinez. They used code, calling a pound of
methamphetamine a “bag of dog food,” “dog,” or “biscuit.”
On September 6, 2017, the night of Twaddle’s arrest, he and Martinez
agreed that Twaddle would go to Martinez’s house in Roswell, New Mexico, pick
up two pounds of methamphetamine, and leave $5,000. Supp. App., Vol. I at 23
(Martinez: “I’ll put it in the glove compartment. . . Just go over there. . . open the
door. . . put the cash in. [W]hat are we looking about two. . . (2) dogs?”
Twaddle: “That’ll work. . . I’ve got five (5) racks on me right now.”). Just before
midnight, Twaddle arrived at the house, circled it a few times, and then reached
into a car parked outside to exchange the money for the drugs.
As Twaddle drove back to his residence in Carlsbad, New Mexico, police
signaled that he should pull over. But Twaddle fled, reaching speeds of 140 mph.
An officer positioned farther down the highway deployed a spike strip, which
destroyed Twaddle’s tire and forced him to a stop. Police then arrested Twaddle
and removed his girlfriend, Jamie Moreno, from the vehicle. They did not find
methamphetamine in the vehicle, but they knew Twaddle had just retrieved two
pounds of the drug. Police searched along the path of Twaddle’s flight down the
highway and located the two pounds of methamphetamine. They detained
1 Twaddle’s driver’s license listed his parent’s house as his residence, but all
evidence indicates that he lived in Carlsbad with his girlfriend and roommate.
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Twaddle without mentioning the drugs, so their investigation could continue
undisturbed.
The next morning, police observed Moreno and Twaddle’s roommate
walking along the highway where Twaddle had driven the night before. They
appeared to be looking for the package of methamphetamine, unaware the police
had already found it.
Later that day, Twaddle called Moreno from jail, asking about the drugs.
Supp. App., Vol. I at 5157 (Twaddle: “Did you go find that?”; Moreno: “We
couldn’t find it.”; T: “I’m just glad they didn’t find it.”). He also boasted about
the high-speed car chase. Supp. App., Vol. I at 5157 (T: “I was smoking them,
huh?”; M: “They said you was going one twenty. . . laughs.”; T: “No, way, way
faster than that.”). Finally, he instructed Moreno to hide his firearms and other
potential evidence. Supp. App., Vol. I at 5157 (M: “What about all your stuff[?]
In the shed. . . or what?”; T: “No!... I don’t have the key to the shed. . . They’re
keeping all my keys.”; M: “What do you want me to do with all. . . your guns?”;
T: “I don’t know.”). Moreno was worried that without Twaddle present at the
house, his things would be stolen. Her first inclination was to hide the firearms
in the shed outside their house, but Twaddle said the police had taken his key.
The pair never settled on a hiding spot for the firearms.
Twaddle remained in custody after his initial arrest. Moreno stayed at
Twaddle’s house, along with his roommate. About a month after his initial arrest,
Twaddle was indicted in this case, and police executed a search warrant at the
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house. They found drug paraphernalia, including a scale and a grinder, in the
house, and several firearms in the shed outside.
Twaddle was indicted alongside several coconspirators, including Moreno
and Martinez, but he was the only one to go to trial. At trial, Twaddle objected to
the admission of three relevant pieces of evidence: the October 2016 recorded
drug transaction, the two pounds of methamphetamine, and the firearms.
The district court admitted the drug transaction over Twaddle’s objection
that it was introduced for the improper purpose of showing his propensity to
engage in crime. As for the methamphetamine, a police officer and a lab
technician identified the evidence, but the two evidence technicians who
transferred it did not testify. Nonetheless, the district court admitted the evidence
over Twaddle’s objection that the chain of custody was insufficient. Finally, it
admitted the firearms over Twaddle’s objection that they were irrelevant and
prejudicial.
After a three-day trial, the jury found Twaddle guilty on all counts. At
sentencing, over Twaddle’s objections, the district court applied three relevant
sentencing enhancements: an enhancement under U.S.S.G. § 3B1.1(c) for an
aggravating role in the conspiracy, an enhancement under U.S.S.G. § 3C1.2 for
reckless endangerment, and an enhancement under U.S.S.G. § 2D1.1(b) for
possession of firearms. Twaddle’s guideline sentencing range was 360 months to
life, but the district court varied downwards and sentenced him to 240 months.
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II. Analysis
Twaddle contends the district court erred in (1) admitting evidence of the
drug transaction, methamphetamine, and firearms, and (2) applying the
sentencing enhancements. For the reasons below, we affirm the district court’s
rulings.
The district court did not abuse its discretion when it admitted evidence of
Twaddle’s prior drug transaction, the two pounds of methamphetamine, and the
firearms. Further, it correctly applied sentencing enhancements for Twaddle’s
reckless endangerment of others, aggravating role in the conspiracy, and
possession of firearms.
A. Character Evidence
Twaddle objects to the admission of his October 2016 drug transaction with
a confidential informant. He argues that this prior bad act was used to show his
criminal character, in violation of Federal Rule of Evidence 404(b). The
government argues that the transaction was admitted to prove Twaddle’s intent to
distribute, not his bad character. The district court admitted the evidence over
Twaddle’s objection.
Federal Rule of Evidence 404(b) provides that evidence of prior bad acts
“is not admissible to prove the character of a person in order to show action in
conformity therewith.” Prior bad acts may, however, be admitted to prove
“intent, preparation, plan, knowledge, identity, absence of mistake, or lack of
accident.” Fed. R. Evid. 404(b).
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There is a presumption that Rule 404(b) evidence will be admissible if
four requirements are met:
(1) the government offered the evidence for a proper
purpose; (2) the evidence was relevant; (3) the trial court
made a Fed. R. Evid. 403 determination that the probative
value of the evidence is not substantially outweighed by
its potential for unfair prejudice; and (4) the district court
submitted a limiting instruction.
United States v. Wacker, 72 F.3d 1453, 1468 (10th Cir. 1995) (quoting
Huddleston v. United States, 485 U.S. 681, 691–92 (1988)). Twaddle argues that
the first and fourth prong of the Huddleston test were not met: there was no
proper purpose for the evidence and the district court’s limiting instruction was
not sufficient.
As for the purpose, the government introduced the prior transaction to
show Twaddle’s intent to distribute. See Wacker, 72 F.2d at 1496 (prior drug
transaction admissible to show intent through “pattern of drug activity”).
Twaddle disputes this, contending that because “the amount [of
methamphetamine] involved in this case was two pounds, there could be no
factual dispute regarding intent to distribute.” App. Br. at 27. It is true that
intent to distribute may be inferred from the possession of a large amount of
contraband. See United States v. King, 485 F.2d 353, 357 (10th Cir. 1973). But a
jury is still free to find that a defendant did not distribute even a large amount.
Thus, the government still bears the burden to prove intent. Of course, a
defendant may stipulate to intent and thus prevent the admission of a prior drug
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transaction for that purpose. But Twaddle explicitly refused to do so at trial.
App., Vol. II at 588 (“[We] don’t want to stipulate that he had the intent.”). He
also affirmatively argued that he did not have an intent to distribute at trial,
arguing that the texts regarding “dogs” and “dog food” could have been about his
pet dog. Thus, the government still had the burden to rebut Twaddle’s arguments
regarding intent. The evidence was admitted for that proper and relevant
purpose.
As for the limiting instruction, the district court stated that the prior drug
transaction could be used “only as it bears on the defendant’s intent to distribute
narcotics and for no other purpose.” App., Vol. II at 886. It went on to say, “Of
course, the fact that the defendant may have previously committed an act similar
to the one charged in this case does not mean that the defendant necessarily
committed the acts charged in this case.” App., Vol. II at 886. Twaddle argues
that this instruction meant “[i]n simple language, ‘use this prior bad conduct to
decide whether he intended to commit this crime.’” App. Br. at 29. It is unclear
why Twaddle objects to this meaning, since showing intent is a proper purpose
for the introduction of prior bad acts. See Fed. R. Evid. 404(b). Nonetheless, the
district court’s limiting instruction was not plainly erroneous. It clearly stated
that the jury should use Twaddle’s prior bad act only for the proper purpose of
proving intent.
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Because the prior bad act, Twaddle’s October 2016 drug transaction, was
introduced for a proper purpose and with an appropriate limiting instruction, we
affirm the district court’s decision to admit the evidence.
B. Chain of Custody
Twaddle next argues that the district court erred in admitting evidence of
the two pounds of methamphetamine when there was not a sufficiently reliable
chain of custody. The government counters that its witness, the officer who
bagged the methamphetamine, did establish a sufficient—though imperfect—
chain of custody.
Because drug evidence is “not readily identifiable and is susceptible to
alteration by tampering,” the party seeking admission must establish a chain of
custody “with sufficient completeness to render it improbable that the original
item has either been exchanged with another or been contaminated or tampered
with.” United States v. Cardenas, 864 F.2d 1528, 1531 (10th Cir. 1989) (quoting
E. Cleary, McCormick on Evidence § 212 at 667 (3d ed. 1984)). But the chain of
custody “need not be perfect.” Id. at 1531. As long as the chain of custody is
sufficient, any deficiencies go to the weight of the evidence, not its admissibility.
Id. The trial court “need only find that the reasonable probability is that the
evidence has not been altered in any material aspect.” Id. at 1532. Further,
“[t]here is no rule that the prosecution must produce all persons who had custody
of the evidence to testify at trial.” Id.
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Officer Matthews testified at trial to establish a chain of custody for the
two pounds of methamphetamine. He had picked up the drugs from the side of
the highway after Twaddle’s flight and placed them into a sealed evidence bag.
He took that evidence bag and placed it into a secure storage locker, only
accessible to evidence technicians. An evidence technician took the bag to a lab
in Las Cruces, New Mexico, for testing. It was returned to Officer Matthews
shortly before trial. The bag was marked by Officer Matthews and by the Las
Cruces lab technician who tested its contents.
Officer Matthews testified that the bag was in the same condition as when
he first saw it, and that there were no signs that anyone had tampered with its
contents. But the evidence technician who took the bag from the secure locker to
the Las Cruces lab was not available to testify, and the government did not
present any paperwork about that transfer.
Next, the Las Cruces lab technician testified. He stated that the bag was in
the same condition as when he tested its contents, and that the drugs inside were
in fact methamphetamine. He explained that an evidence technician had
transported the drugs from a vault at the lab into the lab itself for testing, and he
provided paperwork regarding that transfer. The second evidence technician was
not called to testify.
Twaddle argues that because the two evidence technicians did not testify,
and there was no paperwork to document the first transfer of the evidence, the
chain of custody is insufficient. But he presents no evidence that the drugs were
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tampered with, and he does not address that the evidence bag was properly
labeled and had only been unsealed twice—once by Officer Matthews and once
by the lab technician. There was no sign that anyone had improperly interfered
with the evidence, and both witnesses testified that it was in the same condition
as when they first saw it. Thus, the district court did not abuse its discretion
when it found the chain of custody sufficient. See United States v. Thomas, 749
F.3d 1302, 1311 (10th Cir. 2014) (affirming a finding that a chain of custody was
sufficient even where the testifying officer could not provide an explanation as to
how the drugs were transported, because the bag was labeled and there was no
evidence of tampering).
Because the chain of custody was sufficiently established, we affirm the
district court’s decision to admit the methamphetamine evidence.
C. Relevance of Firearms in Shed
When police executed a search warrant for Twaddle’s residence, they found
firearms in a shed outside. The district court admitted evidence of the firearms
over Twaddle’s objection that it was both irrelevant and unduly prejudicial.
Because the firearms are sufficiently connected to Twaddle and probative of drug
distribution, the district court correctly admitted the evidence.
The threshold for determining whether evidence is relevant, as provided by
Federal Rule of Evidence 401, is “not a high one.” United States v. Cerno, 529
F.3d 926, 934 n.5 (10th Cir. 2008). If the evidence makes any consequential fact
more or less probable, it is relevant. Fed. R. Evid. 401. Relevant evidence may
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be excluded only where “its probative value is substantially outweighed by a
danger of . . . unfair prejudice.” Fed. R. Evid. 403.
Twaddle argues that the firearms were not relevant evidence and that they
fail a Rule 403 analysis. As for relevance, his argument fails. He argues that the
guns were not relevant to the charges because he had already been in custody for
a month at the time of the search and they were in a storage shed outside of his
house. But he discussed the guns in relation to the methamphetamine on a
recorded jail call to his girlfriend, and her first inclination was to put them in the
outdoor shed. This is sufficient to make the evidence relevant and probative of
drug trafficking. See United States v. Hall, 473 F.3d 1295, 1304 (10th Cir. 2007)
(“The Government is not required to prove that the firearms or ammunition were
used for a particular transaction in order for the evidence to be probative. That
the police did not uncover the items until after the charged conspiracy was
alleged to have ended does not mean that they were not involved in the ongoing
conspiracy before it ended.”).
Twaddle’s Rule 403 argument also fails. He first argues that firearms are
not probative of drug distribution. But firearms are “tools of the trade” in drug
trafficking, an industry in which violence and large cash transactions abound.
United States v. Martinez, 938 F.2d 1078, 1083 (10th Cir. 1991). They may be
used to guard a valuable stock of contraband or cash, or to ward off attacks from
other criminals. Thus, they are probative of a defendant’s participation in
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distribution offenses, just as a scale or small baggies would be. Id. This is true
even where no firearm-related offense is charged. Id.
Twaddle then argues that the firearms were not sufficiently connected to
him to be probative. But they were sufficiently connected, for several reasons.
First, and most importantly, Twaddle admitted to possession of the firearms in a
recorded jail call. Second, the firearms were found on the property where
Twaddle conducted drug transactions, and where he was headed on the night of
his arrest. See id. (finding relevant that a defendant “returned to his residence
after negotiating drug transactions”). It is true that the firearms were in a locked
shed apart from the main house. But they were easily accessible from the house,
and Twaddle admitted on his recorded jail call that he normally had a key to the
shed. Finally, they were found along with other “tools of the trade”—a scale and
a grinder—in the search of Twaddle’s home. See id. (finding relevant that the
police “recovered other ‘tools of the trade’ in their search”).
The district court did not abuse its discretion in admitting evidence of the
firearms found in Twaddle’s shed, and we affirm its ruling.
D. Sentencing Enhancements
Twaddle objects to the district court’s application of three enhancements at
sentencing: aggravating role in the conspiracy, reckless endangerment, and
possession of a firearm. But Twaddle gave orders to others in the conspiracy,
endangered police when he fled at 140 mph, and possessed the firearms seized
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from the shed outside his home to further his drug distribution. Thus, the district
court did not abuse its discretion in applying the three sentencing enhancements.
The enhancements for an aggravating role and reckless endangerment
plainly apply. As for the firearm enhancement, we agree with the district court
that it was a close call. But we do not find that the decision to apply the
enhancement was unreasonable, and we must give due deference to the district
court’s application of the guidelines to the facts. See United States v. Duque, 182
F.3d 933 (10th Cir. 1999). Thus, we affirm the district court’s application of
each sentencing enhancement.
1. Aggravating Role
The sentencing guidelines provide that a defendant who acts as an
“organizer, leader, manager, or supervisor in any criminal activity” qualifies for a
two-level enhancement for his aggravating role. U.S.S.G. § 3B1.1(c). A
defendant qualifies for an aggravating role sentencing enhancement when he
“exercised some degree of control over others involved in the commission of the
offense.” United States v. Reid, 911 F.2d 1456, 1464 (10th Cir. 1990).
Twaddle argues that he did not direct Moreno to retrieve the
methamphetamine, “other than to give [her directions].” App. Br. at 36. First,
his directions certainly aided Moreno in attempting to conceal evidence of the
conspiracy. See U.S.S.G. § 1B1.3(a)(1)(A). Further, the district court could have
reasonably found that he did direct Moreno to retrieve the drugs at the time he
threw them, before the recorded jail call.
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Twaddle claims this was unrelated to the conspiracy, and he is correct that
the efforts to retrieve the methamphetamine were not charged. But uncharged
attempts “to avoid detection” for the charged offense must also be considered,
according to the guidelines. See U.S.S.G. § 1B1.3(a)(1)(B). The attempted
retrieval was more likely than not an effort to avoid detection for the crime. See
Supp. App., Vol. I at 51¬57 (Twaddle: “Did you go find that?”; Moreno: “We
couldn’t find it.”; T: “I’m just glad they didn’t find it.”). Thus, the district court
did not err when it applied the aggravating role sentencing enhancement.
2. Reckless Endangerment
As for the reckless endangerment sentencing enhancement, the sentencing
guidelines state that “[i]f the defendant recklessly created a substantial risk of
death or serious bodily injury to another person in the course of fleeing from a
law enforcement officer, increase by 2 levels.” U.S.S.G. § 3C1.2. A defendant
qualifies when his conduct places another at a substantial risk of serious bodily
injury and he is aware of the risk created by his conduct. See United States v.
Conley, 131 F.3d 1387, 138990 (10th Cir. 1997).
Twaddle argues that the district court’s finding that he endangered others
was clearly erroneous, since only his girlfriend and coconspirator Jamie Moreno
was endangered by his high-speed flight. But this is plainly untrue, as the police
who were pursuing Twaddle also had to drive at his dangerous speed of 140 mph.
Further, the officer who placed the spike strip that destroyed Twaddle’s tire was
in danger, as Twaddle could have easily lost control of his vehicle and hit the
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officer, who was standing just off the highway. Finally, Twaddle nearly crashed
into a truck driver in his attempt to escape police, putting the other driver at
substantial risk. Thus, it was not error, much less clear error, for the district
court to find that Twaddle’s 140 mph flight endangered others.
3. Possession of Firearms
Finally, as for the firearm possession enhancement, the guidelines state that
if a defendant possessed a firearm, he qualifies for a two-level enhancement.
U.S.S.G. § 2D1.1(b)(1). This provision requires “mere proximity to the weapon,”
rather than active possession. United States v. Zavalza-Rodriguez, 379 F.3d
1182, 1187 (10th Cir. 2004). The guidelines commentary provides: “The
adjustment should be applied if the weapon was present, unless it is clearly
improbable that the weapon was connected with the offense.” U.S.S.G.
§ 2D1.1(b)(1), comment.
The initial burden to show possession is on the government. Zavalza-
Rodriguez, 379 F.3d at 1184. It may do so by proving a temporal and spatial
proximity between the defendant, the firearm, and a drug offense. Id. The drug
offense need not be the exact conduct charged, as long as it constitutes “relevant
conduct.” See United States v. Clark, 415 F.3d 1234, 1241 (10th Cir. 2005).
Here, the government has met that initial burden. This is especially so
considering that Twaddle admitted to actually possessing the firearms on his
recorded jail call.
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At trial, the government presented evidence establishing that Twaddle
conducted drug transactions from his home. It showed that Twaddle conducted
the October 2016 drug transaction at the home, that he mentioned the home in
text messages and calls setting up drug transactions, and that drug distribution
paraphernalia was found in the home. The government showed that the firearms
were also in proximity through the recorded jail call. In the jail call, just hours
after Twaddle’s methamphetamine-related arrest, Moreno is worried that
Twaddle’s things, including weapons, would be stolen from their home. She then
asks him if she should move his guns to the shed. A reasonable factfinder could
put these statements together to determine that, more likely than not, the guns
were in the home at the time of the call and at the time of the drug activity.
Thus, the district court found that there was a “mere proximity” between
Twaddle, the offense, and the firearms. We review this factual finding for clear
error. See United States v. Pompey, 264 F.3d 1176, 1180 (10th Cir. 2001).
Again, as the district court acknowledged, this finding was a “close call.” But we
cannot find that it was error, much less clear error. Other circuits have agreed
that presence of a defendant’s firearm near drug paraphernalia at a site known for
drug distribution is sufficient to establish possession for the purposes of U.S.S.G.
§ 2D1.1(b)(1). See, e.g., United States v. Mondragon, 860 F.3d 227, 232 (4th
Cir. 2017) (defendant’s “display of a revolver pistol while at the house of his
closest drug-trafficking associate” sufficient to establish nexus); United States v.
Darwich, 337 F.3d 645, 665 (6th Cir. 2003) (firearms’ location in home where
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defendants prepared drugs for sale sufficient to establish nexus); United States v.
Bothun, 424 F.3d 582, 585 (7th Cir. 2005) (firearm’s location in storage unit near
drug paraphernalia sufficient to establish nexus); United States v. Carillo-Ayala,
713 F.3d 82, 90 (11th Cir. 2013) (“[A] firearm, if present—just present, not
present in proximity to drugs—is ‘connected with the offense.’”); United States v.
Trujillo, 146 F.3d 838, 847 (11th Cir. 1998) (gun found in warehouse office on
property with known drug activity established nexus). Thus, we agree that the
government satisfied this initial burden.
The burden then shifts to Twaddle to show that it was “clearly improbable
the weapon was connected with the offense.” Zavalza-Rodriguez, 379 F.3d at
1185 (quoting Pompey, 264 F.3d at 1181). Twaddle argues that the firearms
seized were not sufficiently connected to him. But he directed Moreno to hide
them after his methamphetamine-related arrest. She suggested hiding them in the
shed, and a month later they were found in the shed. The shed was directly
outside the home where Twaddle distributed methamphetamine, and the district
court could reasonably infer the guns were linked to Twaddle and his crimes.
Twaddle presented no other argument as to why the firearms were not connected
with the offense. Thus, it is not “clearly improbable” that the weapons were
involved in the charged drug conspiracy. See U.S.S.G. § 2D1.1(b)(1), comment.
The government met its burden to show possession under section
2D1.1(b)(1), and Twaddle failed to rebut the government’s assertions. Thus, the
district court correctly applied this enhancement.
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III. Conclusion
For the reasons above, we AFFIRM each of the district court’s rulings.
Entered for the Court
Timothy M. Tymkovich
Chief Judge
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