407 F. App'x 32
6th Cir.2011Background
- DEA conducted Title III wiretap of Chaparro and Arturo; intercepted over 4,000 calls and 55 kilograms of cocaine, identifying El Negro as Tellez-Araujo.
- Davis and Tellez were indicted for conspiracy to distribute and possess with intent to distribute 500+ grams of cocaine; Davis also charged with possession and distribution of 500+ grams.
- Trial began July 22, 2008; mid-trial two jurors reported contact with Davis; defense moved for mistrial and severance; Remmer hearing conducted.
- Evidence against Davis came from cooperating co-conspirators and intercepted calls; Davis allegedly met Chapparo and Arturo, received kilogram of cocaine, planned resale in Memphis, and engaged in multiple drug transactions.
- District court sentenced Davis to 120 months; Tellez was treated as a career offender with enhancements, resulting in a 300-month sentence; timely appeals followed.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Juror contact and mistrial | Davis argued mistrial due to juror contact taint. | Defense argued prejudice and needed Remmer remedy. | Remmer hearing proper; no abuse; one juror dismissed; no mistrial required. |
| Sufficiency of evidence for Davis’ conspiracy | Government contends evidence shows Davis joined conspiracy and participated in drug transactions. | Davis argues circumstantial/credibility concerns diminish proof of agreement. | Evidence sufficient; reasonable juror could find conspiracy and drug distribution beyond reasonable doubt. |
| Tellez severance | Severance requested due to juror contact affecting co-defendant. | Severance required to avoid prejudice from joint trial. | Severance motion waived; no reversible error. |
| Variance between indictment and evidence (conspiracies) | Evidence supported Nashville/Texas conspiracies; variance to be tested. | Variance prejudicial, could mislead jury about number of conspiracies. | Variance did not prejudice substantial rights; no reversible error. |
| Use of acquitted conduct and firearm enhancement in sentencing | Court properly used acquitted conduct and firearm enhancement; career offender status discussed. | Challenge to use of acquitted conduct and need for clearer explanation. | Use of acquitted conduct and firearm enhancement upheld; sentence affirmed; reasoning adequate and within discretion. |
Key Cases Cited
- Remmer v. United States, 347 U.S. 227 (1954) (Remmer hearing required for juror contact)
- Smith v. Phillips, 455 U.S. 209 (1982) (Remmer principle; bias focus of hearing)
- United States v. Orlando, 281 F.3d 586 (6th Cir. 2002) (standard for extraneous jury influence review)
- United States v. Zelinka, 862 F.2d 92 (6th Cir. 1988) (Remmer hearing effectiveness and prejudice assessment)
- United States v. Pennell, 737 F.2d 521 (6th Cir. 1984) (nonprejudicial contact not automatic mistrial)
- United States v. Caver, 470 F.3d 220 (6th Cir. 2006) (conspiracy proof and tacit agreements formation)
- United States v. Driver, 535 F.3d 424 (6th Cir. 2008) (conspiracy evidence standards in multidirectional schemes)
- United States v. White, 551 F.3d 381 (6th Cir. 2008) (en banc; acquitted conduct permissible under Booker)
- United States v. Mendez, 498 F.3d 423 (6th Cir. 2007) (acquitted conduct may be considered for Guidelines calculations)
- United States v. Darwich, 337 F.3d 645 (6th Cir. 2003) (standard for reviewing sentencing facts)
- United States v. Davidson, 409 F.3d 304 (6th Cir. 2005) (firearm enhancement connection to offense; clear error standard)
- United States v. Galloway, 439 F.3d 320 (6th Cir. 2006) (career offender determinations and related standards)
- United States v. Herrera-Zuniga, 571 F.3d 568 (6th Cir. 2009) (reasonableness review of sentencing; preservation rules)