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Click here for the full text of this decision FACTS:Based on a tip, law enforcement officers from the Houston Police Department’s narcotics team conducted surveillance on a red Mercury Cougar registered to Feliciano Yanez Sosa. The officers observed the driver of the Cougar conduct what appeared to be two drug deals at two separate locations in the Houston area. After that, the officers followed the Cougar to an apartment complex where they watched the driver enter and leave an apartment and then drive off again. Most of the officers continued to follow the Cougar; one officer remained behind to watch the apartment. The officers stopped the Cougar for a traffic violation and then arrested driver Porfirio Galliardo, when they discovered that he did not have a driver’s license. A search of the vehicle revealed approximately 60 grams of cocaine and $1,149 in currency. One of the officers testified that the total value of the cocaine was about $6,000. During the traffic stop, the officer who remained behind at the apartment complex observed that a white Lincoln Navigator had arrived at the complex and that two occupants, a man (later identified as Sosa) and a woman, entered the apartment where the driver of the Cougar was seen earlier. The officers returned to the apartment. At the door, the officers spoke with occupant Israel Zuazo. Through the doorway, the officers saw Sosa and another male sitting on the sofa in the living room. Zuazo signed a written consent for the officers to search the apartment. Interviewing Zuazo, the officers learned that Zuazo slept on the couch in the living room and that Sosa occupied the west bedroom of the apartment. After obtaining Sosa’s consent, the officers searched the apartment and found approximately 95.3 grams of powder cocaine and 2.3 grams of crack cocaine � worth $10,000 � packaged for individual sales. The officers also found a loaded .357 caliber revolver, additional cocaine in the east bedroom and in the Navigator, drugmaking chemicals, scales and drug sales ledgers. A search of Sosa revealed about $1,400 cash. Authorities subsequently charged Sosa in a four-count indictment with unlawful possession of a firearm by an illegal alien, possession with intent to distribute cocaine, possession with intent to distribute cocaine base and possession of one or more firearms in furtherance of a drug trafficking crime. At trial, Sosa stipulated to all of the elements necessary to convict him on the first three counts. After a two-day trial, the jury found Sosa guilty of counts one, two and three. The district court, however, declared a mistrial as to count four after the jury informed the court that they were deadlocked 11-to-1 on that count and unable to reach a verdict. The case was retried about a month later. Before the second trial, reacting to testimony elicited by the government in the first trial, Sosa filed a motion in limine asking the district court to exclude expert testimony for which the government had failed to provide disclosures under Federal Rule of Criminal Procedure 16 regarding: 1. how a narcotic is manufactured or the inner workings of a narcotics distribution network; 2. the nature, uses, construction or modification of the firearms at Sosa’s residence; and 3. the reasons a person found with narcotics may also possess firearms. The district court denied the motion. During trial, over Sosa’s objections, the government elicited testimony on each of these matters. The district court denied Sosa’s requested instruction on the “in furtherance” element of the crime for which he was charged, possessing a firearm in furtherance of a drug trafficking offense. The jury found Sosa guilty of count four as alleged in the indictment. The district court sentenced Sosa to 51 months imprisonment on counts one, two and three to run concurrently and sentenced Sosa to a consecutive 60-month term on count four. Sosa timely appealed. HOLDING:Affirmed. Sosa claimed that the district court committed reversible error by admitting the testimony of law enforcement officers on: 1. the use of chemicals found in Sosa’s apartment to manufacture narcotics; 2. the modification of the shotgun in Sosa’s closet; and 3. the prevalence of firearms in proximity to drugs and the reasons why firearms are often found near drugs. The district court admitted the officers’ testimony on these topics as lay opinion testimony. Sosa argued that the officers’ testimony was inadmissible as lay opinion because it was based on “specialized knowledge.” Federal Rule of Evidence 701, the court stated, governs the admissibility of opinion testimony by lay witnesses. Rule 701 provides: “If the witness is not testifying as an expert, the witness’ testimony in the form of opinions or inferences is limited to those opinions or inferences which are (a) rationally based on the perception of the witness, (b) helpful to a clear understanding of the witness’ testimony or the determination of a fact in issue, and (c) not based on scientific, technical, or other specialized knowledge within the scope of Rule 702.” The district court, the court stated, allowed law enforcement officials to provide lay testimony on the challenged subjects, reasoning that testimony on these matters was not based on specialized knowledge within the scope of Rule 702, but rather upon the witnesses’ personal knowledge. For much of the disputed testimony, the court stated that it doubted that the district court abused its discretion in determining that the particular testimony at issue fell within the bounds of permissible lay opinion testimony. But the court found that any error in admitting the testimony was harmless, because the other evidence against Sosa in the case was substantial. Sosa next argued that the district court abused its discretion by refusing his requested jury instruction on possession of a firearm “in furtherance” of a drug trafficking offense. Because the district court’s instructions clearly required that the possession be in actual furtherance of the drug trafficking offense, the court concluded that the instruction as a whole substantially covered the principle that mere possession was not enough. Thus, the court found that the district court’s rejection of the defendant’s instruction did not constitute an abuse of discretion. OPINION:Garza, J.; Garwood, Garza and Benavides, JJ.

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