F I L E D

United States Court of Appeals

Tenth Circuit

PUBLISH

NOV 22 2002

UNITED STATES COURT OF APPEALS

PATRICK FISHER

TENTH CIRCUIT

Clerk

UNITED STATES OF AMERICA,

Plaintiff - Appellee,
v.

No. 01-1412

WALTER JAMES JENKINS,

Defendant - Appellant.

Appeal from the United States District Court

for the District of Colorado
(D.C. No. 99-CR-439-01-S)
Glen R. Anstine, Denver, Colorado, for Defendant-Appellant.
Robert Campbell Troyer, Assistant United States Attorney (John W. Suthers, United
States Attorney, with him on the brief), Denver, Colorado, for Plaintiff-Appellee.
Before LUCERO and ANDERSON, Circuit Judges, and BROWN,* District Judge.
BROWN, District Judge.

The Honorable Wesley E. Brown, United States Senior District Judge for the
District of Kansas, sitting by designation.
*

Appellant Walter Jenkins was found guilty by a jury on charges of conspiracy to

distribute more than 50 grams of crack cocaine (21 U.S.C. 846); possession with intent
to distribute more than 50 grams of crack cocaine (21 U.S.C. 841(a)(1)); using or
carrying a firearm during and in relation to a drug trafficking crime (18 U.S.C.
924(c)(1)); and possession of firearms in furtherance of a drug trafficking crime (18
U.S.C. 924(c)(1)(C)(i)). He was sentenced by the district court to a total of 720
months imprisonment. In this direct appeal, appellant argues that the trial court erred in
several of its rulings, including in its denial of his motion to suppress evidence and his
motion to dismiss one of the 924(c) counts.
I.
On October 28, 1999, Detective Mike Yeater of the Colorado Springs Police
Department received a phone call from an individual who said he wanted to provide
information about defendant Walter Jenkins alleged involvement in drug trafficking,
unlawful firearms possession, and other criminal activity. The informant said he wanted
to remain anonymous because he feared Jenkins, but he agreed to meet with Detective
Yeater face-to-face and told Yeater to call him Tony. After receiving this call, Yeater
attempted to corroborate some of the general biographical information the caller provided
about the defendant. Over the course of the next three weeks, Tony telephoned Yeater
several times and met with him in person on at least two occasions. In the course of these
contacts, Tony provided more details about the defendants alleged involvement in
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narcotics trafficking. Among other things, Tony claimed he had known the defendant
for several months; that the defendant went by the name of Smoke and was a member
of the West Side Mafia Crips gang out of Pomona, California; that the defendant claimed
to have committed several drug and gang-related homicides in Pomona; that the
defendant obtained large quantities of cocaine in Pomona and transported it in the
headliner of his Chevrolet Suburban to Colorado Springs for distribution; that the
defendant had been in Pomona about a month earlier and had obtained approximately one
pound of cocaine; that Tony had seen Jenkins with this pound of cocaine at the
defendants residence and helped the defendant cut and package it for sale; that Tony
had been present when the defendant received calls on his cellular phone requesting
cocaine and had seen the defendant send his live-in girlfriend Yolanda or Londa to the
bedroom of their residence to obtain the requested amount of cocaine, which the
defendant would then deliver to the customer at a nearby parking lot; that Tony had
been present when an individual brought approximately $10,000 in cash to the
defendants residence as payment for previously purchased cocaine; that the defendant
informed Tony about numerous firearms he owned and said he always carries a cheap
.9 mm handgun on his person or within close reach; that Tony had seen the defendant in
possession of various firearms; that the defendant told Tony he kept part of his guns
and cocaine at a nearby rented storage facility and he kept the rest at his residence; that
the defendant associated with an individual known as Dog whom Tony had recently
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seen purchase a handgun from the defendant; and that the defendant had recently been
involved in a domestic dispute with his girlfriend Londa in which he had been arrested.
Yeater attempted to corroborate as much of the information as he could, and on
November 30, 1999, he put the information he had gathered into an affidavit and
presented it to an El Paso County Court judge in applications for warrants to search the
defendants residence, including vehicles associated to the property, and the defendants
nearby storage rental unit. The judge issued the warrants.
On the morning of December 1, 1999, a team of officers gathered to execute the
warrants. Officers conducting surveillance of the defendants house saw the defendant
and his girlfriend, Yolanda Jefferson, leave the house and get into the defendants Chevy
Suburban and leave the premises. An officer tailing the Suburban saw it go through the
drive-through lane of a nearby McDonalds restaurant and then head back towards the
residence. Acting upon orders from a supervisor, the officer stopped the Suburban when
it was about three-quarters of a mile away from the defendants house. Officers searched
the car and found a .9 mm semi-automatic handgun and ammunition in a console in the
front seat. The defendant was arrested. He had $800 cash in his pockets at the time of his
arrest. The police allowed Ms. Jefferson to drive the car back to the residence, where it
was impounded. (At a later date, an inventory search of the Suburban revealed crack
cocaine hidden in a bowling ball bag inside the car.)
Meanwhile, officers at the defendants residence searched and found about 40
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grams of crack cocaine, digital scales, and $11,000 in currency inside the house. A .45
caliber semi-automatic handgun with a loaded magazine was found in a station wagon on
the premises. At the nearby storage unit used by the defendant, officers discovered a
Jaguar automobile parked inside. Upon searching they found a backpack in the front seat
with 292 grams of crack cocaine and approximately $15,000, and behind the front
passenger seat they found four firearms and hundreds of rounds of ammunition. Another
gun and some ammunition were located in a box next to the car. The officers also found
several photographs of the defendant and other individuals posing with guns and large
amounts of cash.
The defendant was charged in a four-count superseding indictment, and Yolanda
Jefferson was named as a co-defendant in three of the counts. The defendant filed a
motion to suppress evidence, which was denied by the district court. An eight-day joint
trial of Jenkins and Jefferson ensued. At trial, the originally anonymous informant, Tony
Tanniehill, testified about how he became acquainted with the defendant in 1999 and how
in the months prior to Jenkins arrest he agreed to sell crack cocaine for the defendant.
He testified at length about the defendants drug trafficking and possession of firearms.
Other individuals also testified about their purchases of crack cocaine from the defendant
and/or about their observations of the defendant engaging in the drug trade. The
Government presented certain other witnesses, such as the manager of a motel near
Pomona, California, who testified that records indicated the defendant had stayed at the
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motel on September 27-30, 1999, and the Government also introduced the evidence
seized from the defendants house, cars, and storage unit. As indicated above, the jury
convicted the defendant on all four counts of the superseding indictment.
II.
Jenkins first contention is that the affidavit submitted in support of the search
warrants failed to establish probable cause because Detective Yeater did not
independently corroborate the informants allegations of criminal activity. Appellant
contends the officer merely corroborated innocent facts such as the defendants address
and the types of cars he owned -- and he argues that such facts alone were not enough for
probable cause. Citing, inter alia, Florida v. J.L., 529 U.S. 266 (2000). He argues that the
evidence obtained with the warrants should have been suppressed. In response, the
government contends that various factors demonstrated the reliability of the informants
allegations such that a finding of probable cause was warranted.
A magistrates task in determining whether probable cause exists is simply to
make a practical, common-sense decision whether, given all the circumstances set forth in
the affidavit ..., including the veracity and basis of knowledge of persons supplying
hearsay information, there is a fair probability that contraband or evidence of a crime will
be found in a particular place. Illinois v. Gates, 462 U.S. 213, 238 (1983). Although an
anonymous tip alone seldom demonstrates an informants basis of knowledge or veracity,
there are situations where such a tip, suitably corroborated, will suffice. Alabama v.
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White, 496 U.S. 325, 327-29 (1990) (discussing whether anonymous tip was sufficient for
investigatory stop); United States v. Danhauer, 229 F.3d 1002, 1006 (10th Cir. 2000)
(When there is sufficient independent corroboration of an informants information, there
is no need to establish the veracity of the informant.) In Florida v. J.L., supra, the
Supreme Court found that an anonymous tip to police that a particular person on a street
corner was carrying a gun, without more, was not sufficient to justify an officers stop
and frisk of that person. The Court said an anonymous tip must have some indicia of
reliability in its assertion of illegal activity, not just in its tendency to describe or identify
a specific person, if it is to provide reasonable suspicion for a Terry stop. The same
principle has been applied by this court in cases decided since J.L. See, e.g., United
States v. Tuter, 240 F.3d 1292 (10th Cir. 2001) and United States v. Danhauer, 229 F.3d
1002 (10th Cir. 2000).
We conclude that the informants allegations in this case bore sufficient indicia of
reliability such that, when considered with the other information supplied by the officer,
the affidavit was sufficient to permit a finding of probable cause. To begin with,
although the informant declined to give his last name, the circumstances of his repeated
discussions with the police including at least two face-to-face meetings1 were such
The Government asserts that at least four of the meetings between Tanniehill and
Yeater were face-to-face. It cites Yeaters testimony at trial as support for this assertion.
See Vol. 14 at 201-04. As appellant correctly points out, however, the determination of
probable cause must be made from the facts in the affidavit, not from the evidence
(continued...)
1

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that they place[d] his anonymity at risk. Cf. J.L., 529 U.S. at 276 (Kennedy, J.,
concurring). A reasonable person in such circumstances would realize that in all
likelihood the police could, if they so chose, determine the persons identity, and could
hold him responsible if his allegations turned out to be fabricated. Cf. id. at 270 (citing
Adams v. Williams, 407 U.S. 143 (1972)). This provides a disincentive for making false
allegations and [a] court can consider this factor in weighing the reliability of the tip.
Id. at 276 (Kennedy, J., concurring). See also United States v. Valentine, 232 F.3d 350,
354-55 (3rd Cir. 2000) (listing cases saying an informants face-to-face tip is more reliable
than an anonymous telephone call). Another relevant factor is that the informant claimed
to have personally witnessed the defendants drug transactions and provided a detailed
description of how those transactions were carried out by the defendant and his girlfriend.
In fact, the informant admitted to having assisted the defendant in preparing drugs for
distribution. Cf. Gates, 462 U.S. at 234 (an informant's explicit and detailed description

(...continued)
presented at trial.
Detective Yeaters affidavit was ambiguous as to whether most of his contacts
with Tanniehill were conducted over the telephone or in face-to-face meetings. The
affidavit, which frequently referred to Tanniehill as the caller, stated that Yeater had
four contacts with the caller since October 28, 1999. A review of the entire affidavit
shows that at least two of the officers contacts involved face-to-face meetings. The
affidavit recounts that [o]n October 28, 1999 the caller agreed to meet with Detective
Yeater and Detective Terry Bjorndahl and that [w]hen the detectives met the caller, the
caller still refused to give his/her name.... At a later point the affidavit states that
Detective Yeater later showed the caller numerous photos, and that the caller identified
the individual he knew as Dog. Vol. 1, Doc. 48 at 000336-37.
1

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of alleged wrongdoing, along with a statement that the event was observed first-hand,
entitles the tip to greater weight than might otherwise be the case). See also United States
v. Allen, 297 F.3d 790, 795 (8th Cir. 2002) (informants statements against his own penal
interest add to reliability); United States v. Sturmoski, 971 F.2d 452, 457 (10th Cir. 1992)
(same).
As appellant points out, Detective Yeater confirmed certain general information
provided by the informant, such as the location of the defendants residence and the types
of cars he drove. Corroboration of these facts alone is clearly insufficient for probable
cause or even reasonable suspicion. See United States v. Tuter, 240 F.3d 1292, 1297 (10th
Cir. 2001) (Almost anyone can describe the residents of, and vehicles at, a particular
home without having any special knowledge of what goes on inside the home.) But the
extensive affidavit submitted by the officer in this case contained much more. It included
details indicating that Tony in fact had a relationship with the defendant, as shown by
Tonys accurate assertions that the defendant had a birthday in September and had just
turned 40 years old, that he had a storage rental unit near his residence, and that he had
recently been arrested on a domestic violence charge. In addition, Detective Yeater
independently obtained information suggestive of the defendants involvement in drug
and gun possession that was consistent with the allegations of criminal activity made by
the informant. For example, Yeater stated in his affidavit that a detective in the Pomona
California Police Department had been contacted and confirmed that the defendant was a
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member of the Pomona West Side Mafia Crips gang who went by the name of Smoke.
According to Yeaters affidavit, Tony had identified a photograph of an associate of
the defendants (known only as Dog) for Detective Yeater. Yeaters independent
investigation showed that the individuals real name was Dwight Herrera, that he in fact
went by the alias of Dog, and that he too was a confirmed member of the Pomona West
Side Mafia Crips. Yeater was informed by Colorado Springs homicide detective Terry
Bjorndahl that Dwight Herrera had recently been seen in Pomona, California, together
with his brother, who was wanted for first degree murder in El Paso County, Colorado.
Yeaters affidavit recounts various information he obtained from other detectives relating
to the defendant and to Dwight Herrera. Yeater was informed by Detective Brett Speirs
of the Colorado Springs Police Department that he had received an anonymous tip in
early January 1998 from a source in Denver who said Dwight Herrera was supplying
cocaine he had obtained from Pomona, California, and that a black male named Walter
Jenkins, also known as Smoke Dog, had been Herreras boss in the drug trade but there
was now a turf battle over who was in charge of distribution of crack on the east side of
Colorado Springs. Also, according to Yeaters affidavit, Jenkins and a man named Eric
Amos had been stopped in California in January of 1998 with approximately $30,000
cash in their possession. Detective Speirs told Yeater that during a 1998 drug
investigation, he was staking out an apartment building in Colorado Springs when he
observed two males sitting in a car at the apartments for an extended period. Police
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contacted the two men and identified them as Walter Jenkins and Eric Amos. Yeaters
affidavit further recounted that another Colorado Springs Police Detective, Tom Carle,
informed him of an anonymous tip Carle received in July of 1999 that Dwight Herrera
was dealing crack cocaine obtained from his California gang member friends, that
Herrera usually traveled to California with Smoky Jenkins and Lionel Amos, and that
Herrera and Smoky got their cocaine from the same source but had separate drug
distribution businesses in Colorado Springs. As for Tonys claims relating to the
defendants possession of firearms, Yeater was informed by an agent of the Bureau of
Alcohol, Tobacco & Firearms that records showed the defendant had purchased two
Intratec Tec-9 semi-automatic handguns in 1988. Additionally, Yeater determined from
police reports that during the defendants recent domestic violence arrest, Jenkins had
been pursued by the police and had thrown two loaded firearms out of his car window,
including a .9 mm handgun. Yeater was also informed by another Colorado Springs
detective that the defendant had thirty-four prior arrests in California, including numerous
felony arrests for firearm violations, although he had only been convicted of
misdemeanors.
Unlike J.L., Danhauer and Tuter, the informant in this case risked his anonymity
by repeatedly meeting with or talking to the police, he provided a detailed account of the
defendants alleged criminal activities and explained how he observed those activities
first-hand, and he made statements incriminating himself in the criminal activity.
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Additionally, the police obtained independent information tending to support the details
of the informants allegations of criminal activity, including several details tending to
suggest that the defendant was engaged in drug trafficking and gun possession. This is
true notwithstanding that some of the information in the affidavit came from other
anonymous sources. Cf. United States v. Sturmoski, 971 F.2d 452, 457 (10th Cir. 1992)
(second informants tip helped to corroborate information from first informant). No
single factor here is conclusive, but the informants story and the surrounding facts
possessed an internal coherence that gave weight to the whole. See Massachusetts v.
Upton, 466 U.S. 727, 734 (1984). Taken as a whole, the information in the affidavit
suggested that Tonys allegations of criminal activity were reliable, and it provided a
substantial basis for the judges finding of probable cause. See Gates, 462 U.S. at 243
n.13 ("probable cause requires only a probability or substantial chance of criminal
activity, not an actual showing of such activity"). Accordingly, we reject appellants
claim that the search warrants were invalid.
Appellant next challenges the district courts finding that the search of the
defendants Chevy Suburban on the morning of December 1, 1999, was authorized by the
search warrant pertaining to the defendants residence. That warrant granted officers
authority to enter and search the residence at 5555 Trout Creek Pass Drive in Colorado,
Springs, ... to include any outbuildings and vehicles associated to said property.
Appellant argues that because the Suburban was not at the residence when it was searched
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on December 1, it was not associated to said property and was outside the scope of the
warrant. The district court rejected this argument, concluding that the vehicle does not
become ... disassociated with the property by virtue of the fact that the owner takes it
down to the corner to buy a hamburger and then starts back toward the property,... Vol.
7 at 39.
The facts of this case present a novel question concerning the appropriate scope of
the search warrant, but we need not address that issue. We conclude that the officers
search of the Suburban on December 1 was lawful because there was probable cause to
believe the vehicle contained evidence of a crime. As such, the search was valid under
the auto exception to the warrant requirement. See Carroll v. United States, 267 U.S.
132, 151 (1925) (recognizing exception to warrant requirement for automobiles). We
noted above that Detective Yeaters affidavit was sufficient to show probable cause that
the defendant was engaged in cocaine trafficking and unlawful possession of firearms.
As noted by the search warrant, evidence of such crimes would include illicit drugs,
firearms, items showing occupancy for 5555 Trout Creek Pass Drive, and receipts
showing expenses for trips to California. Based on the facts known to officers on
December 1, there was a fair probability that such items would be found in the
defendants Suburban. In addition to all of the foregoing information, the police were
aware of the informants reports that the defendant transported cocaine from California in
the headliner of the Suburban, that he possessed cocaine in the Suburban just before his
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arrest for domestic violence, and that he always carried a .9 mm handgun on or near him.
Officers were also aware that the defendant had been in possession of loaded firearms in
a vehicle just before his recent arrest for domestic violence. Under the totality of the
circumstances, the police were aware of facts establishing a fair probability that evidence
of the defendants drug trafficking or unlawful firearms possession would be found in the
Suburban. The search was therefore reasonable under the Fourth Amendment.2
III.
Appellants next contention is that the district court erred by denying his motion to
dismiss Count Three of the superseding indictment or his alternative request for a bill of
particulars on that count. In the district court, appellant argued that Counts Three and
Four covered the same criminal behavior and were therefore multiplicitous. Vol. 1, Doc.
70 at 2. Both of these counts charged a violation of 18 U.S.C. 924(c). As an alternative
to dismissal, appellant argued that a bill of particulars was required because Count Three
failed to set forth sufficient facts to protect against double jeopardy. Vol. 1, Doc. 71 at 2.
Appellants multiplicity argument is not spelled out in great detail in his brief, but it
appears to be based on an assertion that Counts Three and Four were premised on the
same underlying drug trafficking crime.
Multiplicitous counts are separately charged counts that are based on the same
Our conclusions that the warrant was valid and the search of the Suburban was
reasonable render moot appellants arguments about the good faith doctrine of United
States v. Leon, 468 U.S. 897 (1984). See Aplt. Br. at 24.
2

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criminal behavior. United States v. McIntosh, 124 F.3d 1330, 1336 (10th Cir. 1997).
They are improper because they allow multiple punishments for a single criminal offense.
Id. Appellants multiplicity argument fails here because Counts Three and Four were not
based on the same criminal behavior. Count Three charged the defendant with using or
carrying a firearm in or about August 1999, during and in relation to the drug conspiracy
charged in Count One. Count Four, on the other hand, was based on defendants
possession of five firearms on December 1, 1999, in furtherance of the offense of
possession with intent to distribute crack cocaine charged in Count Two. See United
States v. Sturmoski, 971 F.2d 452, 461 (10th Cir. 1992) (consecutive sentences may be
imposed for multiple 924(c) counts if the offenses underlying each count do not constitute
a single offense for double jeopardy purposes). Even if the underlying drug crimes here
were related in the sense that drug possession was an object of the conspiracy, a
conspiracy to commit an offense and the actual commission of the offense are separate
crimes and may be punished separately. See United States v. Callwood, 66 F.3d 1110,
1115 (10th Cir. 1995); United States v. Johnson, 977 F.2d 1360, 1371 (10th Cir. 1992) ;
United States v. Abreu, 962 F.2d 1425, 1430 (10th Cir. 1992) (finding that conspiracy and
possession charges were separate offenses, and therefore separate drug trafficking crimes
within the meaning of 924(c)), on rehg, 962 F.2d 1447; vacated on other grounds, 508
U.S. 935 (1993); on remand, 997 F.2d 825. Accordingly, Counts Three and Four
charged separate offenses and were not multiplicitous.
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The record surrounding defendants request for a bill of particulars further clarifies
this point, as it shows that the counts were not only based on separate predicate drug
offenses, but also involved different handguns and occurred several months apart. In
response to defendants argument that he could not determine the basis of Count Three
without a bill of particulars, the government disclosed at a pre-trial hearing that the
firearm described in Count Three had never been recovered and the charge was based on
the testimony of the informant, who would testify that he had seen the defendant in
possession of a cheap 9-millimeter semi-automatic handgun in August of 1999 when
the informant and the defendant distributed crack cocaine. Count Four, by contrast,
charged the defendant with possessing a Model 75 .9 mm handgun and other firearms on
December 1, 1999, when this firearm and others were found in the defendants storage
rental unit together with a stash of crack cocaine. At the pre-trial hearing, the government
further disclosed that the informant told police that the .9 mm handgun identified in
Count Four was not the same .9 mm handgun he had seen the defendant carry in August
of 1999. The informants testimony at trial was consistent with these representations.
Given this full disclosure before trial, and the absence of any showing of unfair surprise
at trial, we conclude that the district court did not err when it denied Mr. Jenkins motion
for a bill of particulars as to Count Three. See United States v. Sturmoski, 971 F.2d 452,
460 (10th Cir. 1992) (district court did not abuse its discretion in denying bill of
particulars where defendant received full discovery and showed no prejudice).
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IV.
Appellants next contention is that the evidence was insufficient to support the
verdict on Count Four. As noted above, Count Four charged defendant with the unlawful
possession of firearms in furtherance of a drug trafficking crime, in violation of 18 U.S.C.
924(c). Appellant concedes the evidence was sufficient to show that he had
constructive possession of the firearms described in Count Four, but argues there was no
evidence the firearms were used in furtherance of the possession with intent to
distribute crack cocaine.
The test for determining whether a jurys finding of guilt is supported by the
evidence is whether, "after viewing the evidence in the light most favorable to the
prosecution, any rational trier of fact could have found the essential elements of the crime
beyond a reasonable doubt." See Jackson v. Virginia, 443 U.S. 307, 319 (1979). The "in
furtherance of" element of 924(c) requires the government to show that possession of
the firearm furthered, promoted or advanced the drug trafficking crime. United States v.
Avery, 295 F.3d 1158, 1175 (10th Cir. 2002). Relevant factors include the type of drug
activity being conducted, the accessibility of the firearm, the type of firearm, the legal
status of the firearm, whether the firearm is loaded, the proximity of the firearm to the
drugs or drug profits, and the time and circumstances under which the firearm is found."
United States v. Basham, 268 F.3d 1199, 1208 (10th Cir. 2001).
Under these standards, we conclude that the evidence was sufficient to support the
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verdict on Count Four. Four of the firearms listed in Count Four were found in the
passenger compartment of the car at the storage rental unit used by the defendant,
together with hundreds of rounds of ammunition of various types. Also found inside the
car were nearly 300 grams of crack cocaine and over $15,000 in cash. The ammunition in
the car included two high-capacity rifle magazines taped together, loaded with
approximately 30 rounds of ammunition of the type used in the SKS rifle listed in Count
Four. At least one of the firearms was loaded, and the evidence suggested an attempt had
been made to file off the serial number from one of the other guns. Vol. 14 at 371-74.
The defendants placement of guns and drugs at the same site was not unique to the
storage unit; the evidence showed that he also kept guns and drugs at his residence and in
his Chevy Suburban. In addition to the circumstances mentioned above, there was
testimony from several witnesses suggesting that the defendant always had a firearm
nearby when he conducted his drug business. Vol. 17 at 668-70; Vol. 18 at 33; Vol. 19
at 29-31. There was testimony that the defendant told Tony Tanniehill not to buy him
another gun because he already had so many. Vol. 17 at 670. One witness testified that
in the same room of the defendants house where crack cocaine was kept, the defendant
displayed various guns to him including a MAK 90 rifle, the same type of rifle described
in Count Four. Id. at 30-31. That same witness also testified that although he sometimes
stole to support his drug habit, he would not think of stealing from the defendant because
he was afraid of getting shot. Id. Taken as a whole, the evidence at trial would support
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a finding that the defendant possessed the firearms listed in Count Four for the purpose of
protecting his cocaine supplies and illicit drug proceeds, and that his possession of the
guns was in furtherance of his drug trafficking crime.
V.
Appellants final argument is that the trial court erred by admitting into evidence
photographs of Mr. Jenkins and others holding firearms and large amounts of cash.
These photographs were found by the police inside Mr. Jenkins storage rental unit.
Appellant argues the photos were irrelevant and should have been excluded because of
the danger of unfair prejudice.
We review questions concerning the admission of evidence under an abuse of
discretion standard. Under that standard, we will not disturb an evidentiary ruling absent
a distinct showing that it was based on a clearly erroneous finding of fact or an erroneous
conclusion of law or manifests a clear error in judgment. United States v. Mitchell, 113
F.3d 1528, 1531 (10th Cir. 1997) (quoting Cartier v. Jackson, 59 F.3d 1046, 1048 (10th
Cir. 1995)).
We find no abuse of discretion in the trial courts decision to admit these
photographs. Contrary to appellants suggestion, the photos were relevant to numerous
issues at trial. They served to corroborate the testimony of various witnesses. The photos
of the defendant or Ms. Jefferson posing with guns and large amounts of cash would tend
to support the testimony of witnesses who said the defendants were engaged in the
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business of drug trafficking. As the Government points out, three of the photos
corroborated Tony Tanniehills testimony describing a specific firearm that he said the
defendant carried while distributing crack. Other photos served to corroborate the
testimony of witnesses who identified the defendants associates during this time. In sum,
the photos were relevant because they had a tendency to make more probable the
existence of facts that were of consequence in the trial. See Fed.R.Evid. 401. Even if we
were to conclude otherwise, however, the trial courts decision to admit these photos
could not constitute a basis for reversal of the convictions. Given the plethora of cash,
firearms and drugs in the defendants possession on the date of his arrest all of which
were properly admitted into evidence before the jury any error in the admission of a few
photographs showing the defendant and his friends holding guns and cash was
undoubtedly harmless. See Fed.R.Crim.P. 52(a) (any error which does not affect
substantial rights shall be disregarded).
VI.
The judgment of the district court is AFFIRMED.

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