United States v. Buchanan

302

parture Sentencing from the Guidelines. tive branch in the Michigan. state of This case, present Michigan cognizable Court claim is not purposes for Appeals already has determined that Peti- federal habeas separation review as the appropri- tioner’s state court sentence was powers judge between state trial and a Hence, Michigan ate under law. prosecutor our re- state is a matter of state law. the constitutionality view is limited to previously Court, As by held this a federal this sentence. may court not grant habeas relief based on “a perceived Pulley, error of state law.” The trial court did sentence Petition- 41, 465 U.S. 104 S.Ct. 871. Further er based on the misinformation that he discussion of argument this is unnecessary. charged should degree have been with first Rather, murder. the facts upon which the III. CONCLUSION trial court based Petitioner’s sentence for Accordingly, we AFFIRM the district degree the second murder conviction are court’s deny post-conviction decision to re- clearly findings evident the record. The § lief under 28 U.S.C. 2254. presumed correct, in the record are to be and Petitioner met his has not burden of See 28 U.S.C.

rebutting presumption. said 2254(e)(1). Therefore,

§ we conclude that trial state court did not act in an

arbitrary capricious manner render- ing Petitioner’s sentence. America, UNITED STATES of Plaintiff-Appellee, Eighth B. Amendment Petitioner next argues that his Allie Richard (98-1353), BUCHANAN IV Eighth sentence violates the Amendment Troy (98-1780), Swindle Albert Der to the United States Constitution. pre As ring (98-1391), Derrick C. Flowers Court, viously by noted this the maximum (98-1594), Washpun (98-1590), Charles penalty degree for second murder in the Rodney (98-1538), D. Atkinson Otis case at imprisonment. bar is life “[A] Murray (98-1537), III Eurtis Jones within statutory sentence maximum (98-1535), George (98-1534), Kellum generally set statute does not constitute ” Darryl (98-1533), Ford Defen ‘cruel United punishment.’ and unusual dants-Appellants. Organek, States v. 60, 65 F.3d United States v. Nos. Cir.1995)(quoting 98-1353, 98-1391, 98-1533, 98-1534, Williams, 1356, 98-1535, 98-1537, 98-1538, 98-1590, Cir. 1994)). opinion are of the 98-1594, We that under 98-1780. proportionality “narrow principle”, Pe United States Court of Appeals, forty sixty titioner’s sentence of years is Sixth Circuit. “grossly neither “extreme” nor dispropor Argued 25, and Submitted: Oct. 1999. tionate” so as to Eighth violate the Amendment. Harmelin v. Michigan, Decided and Filed: Feb. 2000. 957, 959, U.S. 111 S.Ct. 115 L.Ed.2d Rehearing Suggestion Rehearing for (1991). En Banc Denied No. 98-1533 May 2000. Separation

C. of Powers As Corrected on Denial of Rehearing Finally, Petitioner asserts that the May state trial forty court’s sentence of sixty years for degree his second murder convic

tion separation violates the powers be

tween judicial branch and the execu- Colby (briefed),

Barbara Tañase Office Attorney U.S. for the Western Dis- Michigan, MI, trict of Rapids, Grand for Plaintiff-Appellee No. 98-1391. Colby Barbara (argued Tañase briefed), Office of Attorney the U.S. for the Western District of Michigan, Grand MI, Rapids, Martin, Glenn Office of the MI, Attorney, U.S. Lansing, for Plaintiff- 98-1533, Appellee 98-1534, in Nos. 98- 1535, 98-1537, 98-1538, 98-159098-1594, and 98-1780.

Craig (briefed), T. Wormley Miller & Associates, Monica, CA, Santa for Defen- dant-Appellant in No. 98-1353. se, Derring, Albert pro No. 98-1391. David W. (argued briefed), Garrett David Associates, W. and Garrett Com- Park, MI, stock for Defendant-Appellant in No. 98-1533. Ford,

Darryl se, pro in No. 98-1533. Gaylor L. (argued briefed), Cardinal and Sluiter, Agents, Cardinal, Gessel, Van Carlson, MI, Winther & Wyoming, for De- fendant-Appellant in No. 98-1534. Mitchell, William III (argued and briefed), Mitchell, MI, Sherbow & Troy, for Defendant-Appellant in No. 98-1535. Kenneth A. (argued Rathert and briefed), Offices, Kalamazoo, Rathert Law MI, for Defendant-Appellant in No. 98- 1537.

John R. briefed), Minock (argued and Cramer, Arbor, Minock & Gallagher, Ann MI, for Defendant-Appellant in No. 98- 1538.

Charles Washpun, pro se, in No. 98- 1590.

Stuart G. (argued Friedman and briefed), Arbor, MI, Ann for Defendant Colby (briefed), Barbara Tañase Office Appellant in No. 98-1590. Attorney the U.S. for the Western Dis- Maureen M. (argued Milliron and trict of Michigan, MI, Grand Rapids, Glenn briefed), Mitchell, Troy, MI, Sherbow & Martin, Office of Attorney, the U.S. Lan- for Defendant-Appellant in 98-1594. MI, sing, for Plaintiff-Appellee in No. 98- 1353. Swindle, se, Troy pro in No. 98-1780. organization, The Nashville, (briefed), African-American. Pickrell Mark C. Kala- in and around operating began 98- which No. Defendant-Appellant TN, for mazoo, by Michigan in was formed Blackmon, Buchanan, and Keylen Tremell JONES, MOORE, and Before: Hughes. Scott GILMAN, Judges. Circuit Blackmon, Buchanan, outline, In broad large quantities Hughes obtained J., judgment GILMAN, announced cocaine, Chicago, from sources primarily and, exception, one with of the court drugs distribute the would then —in court. opinion delivered converting it into co- after instances some MOORE, J., opinion in the concurred (“crack”) various individu- base caine —to (the drug dog as Part II.C.3 except Atkinson, in and around Kalamazoo. als 315-18), issue). JONES, delivered (pp. J. Kellum, Ford, Jones, Flowers, Derring, he concurred in which opinion separate Swindle, were all Murray, Washpun as to Parts except opinion in the above drugs ob- sellers of purchasers and/or issue). (the photo and II.C.5 II.C.3 Buchanan, Blackmon, tained as J., opinion only MOORE, joined in this charged con- Hughes. The details I, making opinion it the to Part will, necessary, be extent spiracy drug dog issue. to the court as defen- connection discussed assignments of error. specific dants’ OPINION background B. Procedural GILMAN, Judge. Circuit 5, 1997, grand indicted June On con- action were in this defendants The including Bu- twenty-four individuals— and distrib- possess conspiracy victed Kellum, Ford, Jones, chanan, Derring, U.S.C. in violation ute cocaine Swindle, con- Washpun Murray, —with 841(a)(1) multiple raise They 846. §§ distribute cocaine possess to spiracy including chal- appeals, in their issues of U.S.C. cocaine base violation process, to jury to the selection lenges 841(a)(1) the individ- Four of and 846. §§ trial, and to then- at admitted specific in- were also charged uals be- forth the reasons set For sentences. distributing or possessing stances and sen- low, the convictions we AFFIRM illegal drugs. except Allie all of the defendants tences on was filed indictment superseding A Buchanan, Buchanan, As to IV. Richard 1997, another individual 10, in which July conviction, but VACATE his we AFFIRM to was added appeals in these involved same for and REMAND his sentence superseding The conspiracy charge. of the district light reconsideration money launder- also contained indictment not have it did belief that erroneous court’s allegations charges and forfeiture ing applicable from the depart discretion Octo- On of the defendants. against some sentencing guideline. to the 1, 1997, guilty pled Buchanan ber charge. conspiracy I. BACKGROUND indict- superseding A and final second background Factual A. 7, 1997. The issued on ment was October omitted those de- charge conspiracy drug new large-scale ease involves This indicted but originally who were individu- fendants involving numerous organization as Buchan- guilty, such Atkinson, pled had since Bu- als, Rodney who including D. individuals, includ- an, and added four new Flow- chanan, Derrick C. Derring, Albert In addition to and Flowers. Ford, Jones, George ing Atkinson ers, Eurtis Darryl modifications, alleged ending Swindle, III, Troy those Kellum, Murray, Otis from changed conspiracy of the are of whom date Washpun, all and Charles July Derring pled by of 1996 June reference the contentions raised 29,1997. guilty on October their co-defendants. 1998, By the all beginning but fifteen II. ANALYSIS

of those indicted the case had entered guilty pleas. relatively regarding Due A. large makeup Issues the racial defendants, jury remaining jury number of dis- and the selection process assigned trict court each individual to one Atkinson, Flowers, Ford, of two trials. 1. Standard of review Jones, Kellum, Swindle, Murray, A district ruling court’s Washpun constituted the second group. whether a peremptory challenge violates 27, 1998, January On day one after their the mandates of Batson v. Kentucky, 476 began, trial Swindle moved for a mistrial 79, U.S. 106 S.Ct. 90 L.Ed.2d 69 Blackmon, on the basis without warn- (1986), great deference, is entitled to ing, jury revealed to the that Swindle had this court will not disturb that ruling un proffer made a to the that he it clearly less erroneous. See Hernan was, fact, guilty of the alleged offenses York, 352, 364-65, dez v. New 500 U.S. court, in the indictments. The district af- (1991). S.Ct. 114 L.Ed.2d 395 ter concluding limiting instruction “Whether a defendant has been denied his insufficient, would be granted the motion right jury to a selected from a fair cross- and ordered that Swindle be tried section of the community ques is a mixed later date. fact, tion of law and which we review de 3, 1998, February On a jury convicted Allen, novo.” United States v. 160 F.3d each remaining seven defendants. Cir.1998). objections As to A separate jury convicted Swindle in late raised for the first appeal, time on we will March of stated, 1998. Unless otherwise not set rulings aside the of the district references in this opinion to a “trial” are to court they unless plain constitute error. the trial which resulted the conviction of 52(b); See Fed.R.Crim.P. United States v. Atkinson, Flowers, Ford, Jones, Kellum, Segines, Cir.1994). Murray, and Washpun, original- and which ly included Swindle. 2. The objection Batson defendants’ 19, 1998, February On the district court During selection, govern sentenced Buchanan to 156 months of im- ment used a peremptory challenge to prisonment. Derring received a 145- strike only the person African-American month term 12, of incarceration on March selected jury. Batson, for the Citing the 1998. The imposed district court a 235- argued defendants that all because of the month April 4, sentence on Ford on 1998. African-American, defendants were the 1,May 1998, Atkinson, Flowers, On Jones, challenge was racially motivated. In re Kellum, Murray, Washpun were sen- sponse, government the asserted that it respective 240, 360, tenced to terms of 240, juror excused the because of an answer 360, 300, and 300 imprisonment. months’ provided she to a response ques written Finally, the district court sentenced Swin- tion asked of potential jurors. all The dle to a 324-month term on June 1998. question was as newspa follows: “What pers, magazines and kinds of you books do The appealed, defendants then setting juror read?” The issue answered: variety forth a arguments of relating to ..., “Grand Rapids press I myster read jury the process, selection govern- the ies, my romances and I Bible. listen to ment’s arrangements with certain wit- really CNN. I don’t trust our newspaper.” nesses, trial, evidence admitted at their sentences. instances, In several upon answers, the Based this and other the defendants’ individual incorporate briefs government, prior learning of ju- each

309 (citing Id. at 587 ma facie moot.” each case race, desirability of the assessed ror’s York, 352, 359, a v. New 500 U.S. issue had received Hernandez juror at The person. (1991)). to the response In L.Ed.2d 395 rating. S.Ct. “fairly low” case, the dis- objection, and before in this as prosecutor The noted defendants’ strength of above, the the belief that there expressed commented was trict court stated government the challenge, juror a risk that would “distrust” what their the juror’s an- of the portion the of may during the last hear or read course she newspa- trust our really don’t swer—“I was based on the trial. This belief the view, dis- general “a its per” indicated, did not comment she juror’s written — or heard.” read or saw what she trust of newspaper. We conclude that trust her Bat- overruled the court then belief, The district “partic- although perhaps a such finding government’s the objection, son plausible ularly was at least persuasive,” On “logical” and race-neutral. justification justification to sufficiently a neutral contend that defendants appeal, the defendants’ Batson chal- overcome the peremptory for the reason government’s lenge. for its “merely subterfuge”

challenge excluding juror be- purpose” “real challenge The defendants’ to the race. cause of her jury venire its use “The cannot jury selection At the conclusion in a case challenges criminal peremptory objected to the defendants process, the venire from members of to exclude jury panel of the entire makeup racial race.” the basis their jury solely on itself, contending represen- that it was not Hill, F.3d States v. United driving population of voting or tative Cir.1998). whether determining In re- Michigan. District of the Western occurred, framework is such violation court, request to a the district sponse well-settled: jury clerk to government called the equal protec- a violation To establish used to as- testify procedures about Batson, the defendant must tion under in the district. The jury semble venires showing that prima facie first make overruled the ob- court thereafter district peremptory exercised prosecutor jection. appeals, In their defendants race. The burden challenges based on Jury Selection Service assert prosecu- then shifts persuasion 1861-78, Act, §§ and the Sixth 28 U.S.C. reasons articulate race-neutral tion to jury to a venire them Amendment entitled prosecutor The must the strikes. for more African-Americans. that contained and rea- that is “clear convey a reason requires Amendment sonably specific.” Sixth “The from which jury venire that the Gibbs, 438- v. United States a ‘fair cross-section’ represent selected Cir.1999) (citing quoting Bat- Allen, United States community.” (citations omitted). son) given, The reason (6th Cir.1998) 1096, (quoting F.3d 1103 160 however, persua- particularly not be “need 522, Louisiana, 528, 95 419 U.S. Taylor v. sive, it is long so as plausible, even or (1975)). 692, 690 The 42 L.Ed.2d S.Ct. Harris, v. 192 States neutral.” United set forth in Duren are Cir.1999). factors consider (6th F.3d 664, 58 Missouri, 99 S.Ct. 439 U.S. Here, its offered government the (1979), are as follows: L.Ed.2d 579 juror question striking for the reason prima facie to establish a viola- In order court could evaluate the district before require- fair-cross-section tion of the forth a had set the defendants whether (1) ment, must show that the defendant sequence case. Such prima facie ais alleged to be excluded group the question the initial “renders events community; in the group “distinctive” pri- established a defendants] the whether (2) dire, the representation group of this voir by setting time limits for juries deciding which whether peremptory venires from are selected to exercise a challenge particular juror. on a is not fair and reasonable None of in relation to the provide any briefs concerning detail persons number of such the com- imposed. the time limits to Rule (3) Pursuant munity; underrepre- this 52(b) of the Federal Rules of Criminal systematic sentation is due exclusion Procedure, this court reviews such claims group jury-selection in the pro- under “plain error” standard. We find cess. an basis in sup- insufficient record case, Id. at 99 S.Ct. 664. In this port the jury claims, defendants’ selection government acknowledges that African- any much less plain evidence of error. Americans are a “distinctive” group for the purposes of the analysis. Duren But even regarding leniency B. Issue offered if defendants could jury show that the certain witnesses venire for assembled their trial under- that, The defendants contend representative of their community, they offering leniency to several who witnesses have failed to show that underrepre- such trial, testified the government violated “systematic sentation was the result of a § 201. That provides, U.S.C. section exclusion” of African-Americans from the pertinent part, as follows: jury process. selection ... directly indirectly, Whoever or The testimony jury clerk estab- gives, promises offers or anything comprise lished African-Americans any person, value to for or because of population of the total 4.68% of the coun- testimony under oath or affirmation ties located within the Rapids jury Grand given given by or to be person such aas Of those qualify wheel. residents who for trial, upon a hearing, witness or other service, 2.49% are proceeding, African-American. any before court ... shall action, In the instant there were be fined two Afri- under this title or imprisoned for not years, in a more than two seventy, can-Americans venire of or both. con- venire, stituting 2.86% of the slight- which 201(c)(2). §Id. ly proportion exceeds the of African- The challenge essentially defendants’ in- Rapids

Americans the Grand quali- area vokes the now well-known Tenth Circuit jurors. fied to serve as These statistics decision of Singleton, United States v. indicate that there was no violation of the (10th Cir.1998), F.3d 1343 which has since fair requirement cross-section in this case. rejected banc, been vacated en Moreover, even if Cir.1999). statistics could be Moreover, F.3d 1297 this underrepresentative, viewed as the defen- court previously has prose- ruled that such present any dants did not cutorial “sys- conduct implicate does not 201(c)(2). § Ware, tematic exclusion.” See United Accordingly, States v. we con- Cir.1998) (hold- clude that 418-24 the district court did not err on 201(c)(2) § ing that preclude does not this issue. government from offering leniency to a 4. The defendants’ accomplice contentions re- defendant’s in exchange for

garding defendant). testimony truthful method and manner of thejurg process Accordingly, selection we find no merit in argu- this ment.

For the first appeal, time on take defendants issue with the method and regarding C. Issues evidence admitted process. manner selection Spe during the trial cifically, they complain that the district 1. Standard of review “unduly court restricted” ability to their their challenges by exercise requiring that “The trial court’s determinations of ad- one attorney serve as lead during counsel missibility relevancy and depend on the

3H in did not abuse its discretion con- district court within the judgment of sound exercise testimony because the evi admitting The trial court’s the trial. the entire text of “legitimate purpose disturbed ab- of not be dence served the should determination development discretion.” United showing background clear abuse of the and sent a (6th 482, F.2d 494 Seago, 930 States v. Pauli conspiracy.” v. of a United States omitted). (citations Cir.1991) (cita Cir.1991) (6th 739, no, 935 F.2d 755 marks omit quotation tions and internal drug particular trans- of 2. Evidence ted). Thus, argument the defendants’ involving Kellum actions without merit. Murray dogs’ drug-sniffing of 3. Evidence trial, regard- was admitted At evidence positive indications of a narcotics sixty-four crack of ing the 1990 seizure currency Mur- scent on seized from addition, Mur- In from Kellum. “baggies” ray Washpun evi- unsuccessfully to exclude ray sought by him sale of crack of a controlled dence Washpun appeal, Murray In their in 1994. officer police an undercover to court’s take issue with the district also Murray argue Kellum appeal, On both dogs that to admit evidence decision by police regarding testimony that the of narcotics trained to detect the scent con- drug transaction and the the seizure currency seized from positively reacted to that “other acts” evidence of stituted evidence They them. contend that such pursuant excluded should have been pursuant should have been excluded 404(b) Evi- Rules of of the Federal Rule Rules of Evidence. Rule 403 of the Federal con- government In response, dence. concedes that response, as testimony was admissible tends that the as views such evidence Sixth Circuit the con- acts in furtherance of evidence of value, argues having probative minimal but spiracy. is nonetheless admissi- the evidence ble. 404(b) fol provides

Rule as lows: 403, part, provides pertinent Rule crimes, wrongs, or of other Evidence pro- if may be excluded its that “evidence char- prove

acts is admissible by substantially outweighed bative value is ” action person in order to show acter of Fed. danger prejudice.... of unfair may, It howev- conformity therewith. support R.Evid. Prior cases er, purposes, other admissible for be high percentage that because a proposition motive, opportunity, as proof such with a currency in circulation is tainted intent, knowledge, plan, preparation, narcotics, of a scent or residue of or acci- identity, or absence of mistake drug-sniffing dog indication positive dent, request by the provided upon evidentiary value. See may minimal have accused, in a criminal prosecution $5,000 Currency, in U.S. United States v. notice provide case shall reasonable Cir.1994). Indeed, F.3d trial, if during trial or advance Third has set Judge Becker of the Circuit good notice on pretrial court excuses there compelling argument forth shown, nature of general cause strong presumption should be a introduce it intends to any such evidence admissibility such evidence. See at trial. Carr, 1214- 25 F.3d States v. United Cir.1994) (3rd (Becker, J., 404(b). concurring Here, however, Rule Fed.R.Evid. cases, 404(b) dissenting part). Other part the evi- applicable is not because See, however, e.g., otherwise. instruct continuing pattern “a dence constitutes Golb, Barnes, 69 F.3d United States v. illegal activity.” United States (9th Cir.1995) Cir.1995). district (holding that if Even in admit- 404(b) situation, its court did not abuse discretion in this applied Rule currency ting dog-sniffs disagree. of and We Our review of the record jury’s within no noting prov inappropriate pack- that “it was the indicates use of the competing ages. Immediately opinions package ince to resolve these after each identified, government, was weight through what to accord the the determine evidence”); questioning, government’s drugs established that the ex- United States (1st Saccoccia, hibited were not seized from the defen- 58 F.3d 777-78 Cir. Moreover, 1995) (“Even dants in this case. the defen- though widespread contami object dants failed to to the use of the currency plainly nation of lessens the im demonstrative evidence and did not re- evidence, pact dog dog’s of sniff a trained a quest limiting upon instruction. Based probative alert still retains some value.... the foregoing, we conclude that the use of [Tjhough dog likely the sniff evidence bol the packages permissible. prosecution’s case and stered served to defendant, inculpate we are not con evidentiary 5. Other issues presented vinced that it a substantial risk prejudice.”). of unfair remaining evidentiary rulings The challenged by one or more of the defen issue, uncertainty Given the of this admissibility dants concern photo Murray’s Washpun’s arguments might graphs depicting the defendants consort Nonetheless, I have merit. see no need to ing with each other and with other co- presently question decide the of whether conspirators, admissibility of a video presumption there be a should tape showing Ford engaging drug a admissibility testimony regarding transaction, timing govern and the positive drug dog’s indications of narcotics ment’s disclosure of that videotape to de currency residue on seized from a defen- viewing fense counsel. After photos, dant. Even if the district court did fact nothing inflammatory we find or unfairly in admitting abuse its discretion the testi- prejudicial them, about and our examina alerts, mony regarding dogs’ any error tion of the record as to each of the other light was harmless in of the substantial contentions shows them to be without mer amount of other evidence linking both just it. There is no basis to find an abuse Murray Washpun to the conspiracy by discretion the district court on these specific and to criminal actions. evidentiary issues. Sentencing D. issues drug pack-

4. The use of certain aging exhibits as demonstrative Standard review during testimony aids A district court’s factual find government’s drug-trafficking ex- ings underlying application of the sen pert tencing guidelines will not be disturbed trial,

At witness unless found to be clearly erroneous. See with expert knowledge of the inner work Mahaffey, United States v. 53 F.3d ings Cir.1995). the drug-trafficking trade testified Sentencing issues way about the drug which pack dealers raised for the first time appeal will not age and distribute narcotics. To illustrate be considered unless the underlying ruling testimony, the government plain marked for constitutes error. See United States purposes identification actual packages Barajas-Nunez, of v. 91 F.3d powder Cir.1996). cocaine and crack cocaine. These If the district court is aware of packages were never introduced depart into evi its discretion guidelines from the dence, jury. it, but were seen On on the issue before forego decision to appeal, -the defendants contend that departure a downward appealable. is not use of such Welch, demonstrative aids was inflam See United States v.

matory (6th Cir.1996). improper.

313 drugs involved attempt to estab- jecting the defendant’s nature of 2. The conspiracy district court was unaware of lish that the in the even depart discretion to where the its appeal, first time on For the affirmatively did not show that the record adequacy challenge defendants several authority). he judge district knew had such findings respect court’s the district drugs in the involved the nature to specifically The district court ex that there was They contend conspiracy. belief, however, its that it could pressed the narcotics that insufficient evidence alleged Buchanan’s withdraw not consider powder to opposed crack cocaine as were activity to ar prior al from criminal his lacks merit. argument This cocaine. sentencing, At the district court rest. evidence in the record extensive There was guidelines as follows: defi “[T]he stated involved both forms conspiracy for at nitely do not allow the Court to look frequently and that the defendants cocaine time the time of period between it to cocaine to convert powder “cooked” activity criminal and the time of ceasing of noted, previously has As this court crack. say to this is different apprehension identity may establish express opinion as Although level.” we no evidence. See drug by circumstantial of a whether such action warrants down to F.3d Wright, States United court departure, the district was ob ward Cir.1994). Moreover, expert tes it it is a miti ligated to consider because layA necessary. witness timony is not adequately has not gating factor that been with crack personal experience has who formulating Sentencing considered is, that a substance can establish cocaine States v. Cole See United Guidelines. (affirm indeed, id. at 1439-40 crack. See (6th Cir.1999) man, F.3d 358-60 finding that ing the district court’s (en banc) (holding that a district court crack cocaine involved was substance categorically any exclude non- may not govern testimony from several based on from consideration for prohibited factors had seen the defen ment who witnesses Coleman, we noted as fol departure). the sub “cutting” crack or had seen dant lows: it crack based and knew was stance number of unquantifiable are an [T]here personal experience). their factors, including potential departure have unknown factors that heretofore downward motions for 3. Buchanan’s by a previously considered been departure a court has not Simply court. because asserts that appeal, Buchanan On does ruled on the factor issue directly refusing to de court erred the district con- district court from not excuse the history criminal as to his part downward potential as a basis sidering the factor noted level. As category and his offense departure. for a downward above, unappeal depart not to a decision vacate Accordingly, we must Id. at 359. can establish that unless a defendant able the case and remand Buchanan’s sentence unaware of its dis court was the district limited purpose court for the to the district Bu exception, one cretion to do so. With alleged considering whether Buchanan’s showing. has failed to make such chanan activity prior criminal withdrawal from reveals that A of the record review departure. a downward arrest warrants Bu specifically considered district court gov- 4.Derring’s assertion motions, that a determined chanan’s but the terms of his ernment breached Such ex was not warranted. departure agreement plea indica is a sufficient pressed consideration de- government’s Derring challenges aware of its that the district court was tor reduce filing a motion to forego States v. cision authority depart. See United Cir.1995) (re- assistance as for substantial his sentence Byrd, 53 F.3d sentencing 35(b) Other issues Rule of the Federal permitted by Procedure. Pursuant to of Criminal Rules by sentencing The other issues raised agreement, government Derring’s plea quantity the defendants concern the good a faith evalua- “agree[d] to make had drugs individual, attributable to each agree- cooperation th[e] tion of under [his] of the factual adequacy findings determining in whether to move for a ment court, district and the fairness of their ” Derring sentence.... [his] reduction of comparative carefully sentences. We have agreement his although plea contends that reviewed the as to these record each of government not to make require did contentions and find them to be without motion, government’s a decision such merit, rising “clearly much less to the er- must have been based on an unconstitu- roneous” level. light coopera- in of his full

tional reason appeal E. Swindle’s that suggests government tion. He him against discriminated on the basis of appeal Swindle’s counsel filed a brief on a his when it made substantial assis- age a pursuant and also motion to withdraw to younger tance in connection with a motion California, Anders 386 U.S. co-defendant, but not himself. In re- (1967). 1396, 18 L.Ed.2d S.Ct. After (1) sponse, government argues record, review of the entire counsel was of objected Derring sentencing never at opinion that there were no meritorious (2) it declined to file a substantial assis- did, however, grounds appeal. for He tance Derring’s motion because of break- identify nine conceivable issues. These in- cooperation, including down in by motion questions cluded the buyers whether the Derring guilty plea. to withdraw his charged prop- sellers the case could

erly be considered a part charged The record does not indicate conspiracy, whether statements of cocon- why government chose not to move for spirators were introduced Swindle fact, however, a reduction. This does not rule, hearsay violation of the whether by imply government itself that the history his criminal score should include a reason, an by motivated unconstitutional point thirty-day for a sentence of secured Derring nor does it entitle to a hearing on imposed juvenile, detention when he was a Bagnoli, the matter. See United States v. and whether the by district court erred (6th Cir.1993) (holding F.3d 91-92 considering prior marijuana Swindle’s con- that the defendant was not entitled to a viction when assessing history. his criminal hearing government brief, as to whether the separate act In a pro se raises Swindle unconstitutionally by ed filing a sub several of challenges already discussed motion, defendants, stantial despite assistance the fact connection the other provided the defendant some further contends that his counsel ren- assis government express tance and the did not dered ineffective assistance to failing request a ly explain lesser-included offense declining its reasons for to file instruc- motion). essence, tion and that the district court failed to sentencing determine at whether he should deciding has discretion whether to file be held accountable for the criminal activi- substantial assistance motion. That deci ty of others. Our review of the record sion will questioned not be unless the de convinces us that none of the above con- fendant can make “a substantial threshold any tentions has merit. an showing of unconstitutional motive.” Id. at 92. Our review of the record reveals III. CONCLUSION that Derring failed to make such a show ing. As such he was not entitled to a above, For the reasons set forth we hearing argument and his appeal is AFFIRM the convictions and sentences of without merit. except all of the defendants Buchanan. As conviction, ficiently probable Id. Buchanan, his indicative cause.” we AFFIRM The court cited cases and stud- and REMAND 848-49. his sentence VACATE but indicating up ninety percent or light ies the same for reconsideration positive more of bills test for traces of did that it erroneous belief district court’s at 849. cocaine. See id. This conclusion from the depart not have discretion previous panel followed a which had found sentencing guideline. applicable dog-sniff only that similar evidence had JONES, NATHANIEL R. Circuit probative weak value. See United States MOORE, J., concurring, with Judge, $53,082.00 Currency, v. in United States only. in Part I joining (6th Cir.1993). 245, F.2d 250 n. 5 985 Oth- similarly utili- er circuits have doubted the

I. See, e.g., ty of such evidence. United $30,060.00, Judge Currency, Gilman’s States 39 F.3d at We concur with reasoning (concluding that agree showing with its on 1043 statistics opinion, complex widespread currency great- of this case. None contamination aspects most theless, separately ly probative posi- because we diminishes the value of we write dog money, tive and that contin- by Murray’s Washpun’s sniffs of persuaded are testimony the officer that ued reliance of courts and law argument that enforcement positively “logically to cur officers on such evidence is inde- trained canines reacted fensible”) (citation omitted); rency on them should have been United States found $191,910.00 Currency, Both defendants con v. in United States ruled inadmissible. (9th Cir.1994) 1051, inher n. 21 “dog-sniff’ that this evidence is 16 F.3d 1062 tend years, neces have ently (noting “[i]n because it does not that recent courts unreliable activity part, reliability their sarily drug increasingly questioned indicate on currency); Drug finding anywhere dog that from alerts” on Jones v. citing studies Administration, ninety-six percent F.Supp. of United 819 seventy to Enforcement (M.D.Tenn.1993) 698, 719, (concluding tainted narcotics.1 720 currency is with States currency is to the dis that because contaminated They presented these statistics through widespread, their motions in limine evidence of “narcotic-trained trict court through currency extremely arguments, dog’s and oral as well as ‘alert’ to the government probative weight”). witnesses. little voir dire of generally have not translated agree dog-sniff that this Courts We an in the forfeiture realm into inherently unreliable and these doubts under Fed.R.Evid. admitting outright prohibition in it. court abused its discretion Saccoccia, See, e.g., have 403. United States years, In recent this court and others (1st Cir.1995) (affirming 58 F.3d 778 skepticism regarding proba- expressed evidence); dog-sniff dog of evidence that a detected admission United tive value Akins, F.Supp. currency.2 In United States v. narcotics traces (M.D.Tenn.1998) $5,000 (allowing dog-sniff evi- Curren- States v. in United States (6th Cir.1994), “un- concluding that it was not this court dence and cy, 40 F.3d 846 Nevertheless, duly such evidentiary prejudicial”). value of the nar- held minimal, unique “insuf- also involved circumstances. dog’s cotics alert was cases $30, Currency, States United States v. United 1. Defendants cite two reasons such 060.00, (9th Cir.1994). large percentage currency is tainted 39 F.3d First, currency when is run narcotics. through bank, counter at a a mechanized dog-sniff reliability of evi- issue of the 2. The currency narcotics contained on some 1) emerges as dence in two different contexts: gets the counter and is transferred to into here, as evi- it should be allowed whether Second, currency currency. other the ink on dence, 2) sufficiently it is indica- and whether argument narcotics. bonds with the This purposes. probable tive of cause for forfeiture courts’ and studies' conclusions echoes other See, money. e.g., regarding "contaminated” Saccoccia, pre- view that the information avail- appellant had now strong presumption re- establishes a to the district court able findings sented admissibility of evidence of a non-reliability of such evi- garding the that the dence, currency, could not inform canine’s alert to those materials so presumption can rebut that the district court’s decision. See Carr, 19; only clearly convincingly if it first n. States v. at 777 United cf. Cir.1994) (3d (declin- establishes, presence outside the 1202 n. 3 F.3d jury, judicial nearly non-prejudicial notice that all the relevance and ing to take nar- character of the evidence. currency detectable traces of offered contains cotics). Akins, were illegal drugs And (Becker, J., concurring 1216-17 25 F.3d at bag in the of the defendant whose found (footnotes omit- part, dissenting part) dog. also sniffed a narcotics money was ted) (emphasis supplied original). Indeed, F.Supp. at 814. when See 995 the unrebutted statistical Given diminishing factors there were other cases, we find studies this and other sniff, dog reliability separate Judge compelling. Becker’s view We be concluded that the evidence Akins Court generally presume lieve that courts should unduly prejudicial and did not allow was admissibility the of evidence that a F.Supp. its admission. See 995 at 814 dog currency detected narcotics on unless (finding probative limited value and unfair government the offers other evidence prejudice money for a sniff of which was showing a direct between nar illegal nexus in a drawer in a DEA interdic- contained cotics, currency question, in the and the room). tion Further, defendant. when circumstances Carr, Judge perhaps Becker voiced dog-sniff any way of the in detection cast strongest finding dog-sniff the case for evidence, reliability doubt on the of that in particular evidence inadmissible cases: Akins, in such as we believe courts should any many [regarding

If find studies such inadmissible. Under valid, currency presumption, contamination] is then such a we believe that the dog large Murray’s Washpun’s the fact that a alerted to a facts of ar both in dog- number of bills United States curren- rests militated for exclusion of the First, cy major question. has circulated in a in in which met- sniff evidence as (at Carr, ropolitan government center which the the attempt studies did not to directed) Indeed, meaningless likely are is rebut the contamination studies. quite unfairly prejudicial, see Fed. one officer testified she was aware of seventy R.Evid. and evidence thereof should that as showing studies much as to Although having ninety percent currency have been excluded. is contaminated ' many been to directed of the studies with some amount of controlled sub ..., stances, 1034-35, the in brief its has not J.A. at and none of the disputed validity any dogs’ the who stud- witnesses testified as to the pointed any training findings. ies mentioned above to countered those Fur [nor] ther, countervailing studies.... It is in thus neither case was there a nexus my opinion currency illegal considered that the fact that between the found and by governmental dog Murray’s numerous studies narcotics. The sniff in case private agencies, studies which un- stop, although stand followed traffic Mur refuted, cash, strongly suggest ray large that a trained was found with a amount of will canine alert to all bundles of used he possessed Similarly, no narcotics. the currency permit dog does not the in came Washpun’s sniff case after a draw a reasonable inference that the routine traffic a ear in stop of which Wash- in person prior possession pun passenger. dog of such cur- was a A “reacted” to rency drug currency glove compartment, was a trafficker or associat- in the as well Indeed, with I money only ed one. am inclined to which as had seconds before activity particular question, in Washpun’s person. stops the removed from been Nevertheless, drugs presumption no the applying officers found we believe is the studies cited car. Given Washpun’s appropriate. above, disquieting prosecu- it we find argues The Government further dog-sniff this evidence alone tors utilized is in that our conclusion error because its inference that these individu- to create the dogs’ reliability witnesses discussed their illegal narcotics activi- engaged were als cocaine, in detecting explained that on comforted, are ty at those times. Nor we occasions, dogs question several did is, fact district court as the “general population” money not react to or

jurors aware of and could “discount” were money withdrawn from a bank. But this dog-sniff evi- possible problems ability testimony dogs’ as individual Rule of Evidence 403 ex- dence. Federal nothing underlying prob does to rebut the that certain evidence plicitly recognizes highlighted by lem the studies —that or [] mislead[] will issues “confusfe] widespread money contamination of means duty to jury,” judge’s and it is the dog’s that a of cocaine on detection curren potentiali- when the exclude such evidence cy provides support little for the inference substantially outweighs ty of those effects possessor money that the of that en value. probative evidence’s Fed. gaged illegal activity. narcotics Stated case, R.Evid. believe that this 403. We by the simply, problem raised studies just evidence carried this dog-sniff reliability mon contaminated risk. ey wrongdoing, as evidence of not the abil argues that defen- The Government ity drug-sniffing dog. The wit statistical studies was dants’ citation of testimony dogs’ general their nesses’ about justify our conclusion that insufficient to reliability, training including and on that un- question inherently is the evidence dogs several occasions the did not react to disagree. In addition to de- reliable. We “general money, circulation” did not as to these studies in mo- fendants’ citation Indeed, aspects of suage this concern. limine, tions argument, oral and testimony po their as the fact that —such witnesses, as this examining as well re-place drug mon simply lice confiscated studies, these past Court’s citation of (on dogs previously have detected ey which acknowledged Government’s own witness narcotics) general without into circulation studies, data from the and the district it, 1180-81, at and that one “cleaning” J.A. recognized court that “the studies that bill in a stack of bills can contaminated ninety percent show that the residue is on dog’s response, J.A. 1179— trigger currency interesting an is- [raise] only argument. bolstered the defendants’ fact Despite sue.” at 1049. that J.A. clearly The court sensed that the district plainly the studies defendants had raised testimony had not re officer-witnesses’ evidence, challenging dog-sniff underlying to the defendants’ con sponded no effort to those Government made rebut the cross-examination of “clearly cern: trial, again studies at failed to do so on dire about success rates on voir [Parsons] Indeed, acknowl- appeal. the Government they kind of—communicative-wise was by the edged problem identified stud- communicating. Parsons weren’t Officer very presumption it ies when echoed the way; doesn’t think that Mr. Doele dog-sniff that we against such evidence maybe lawyers way think that on perhaps here; specifically, the have couched Gov- particular J.A. at 1048. De this issue.” ernment conceded to the district court that acknowledg spite this conclusion its only if were evidence we had “this “interesting,” case, that the studies were I ment Murray Mr. in this would that it did not find the the court concluded agree prej- that it was more [counsel] “highly prejudicial upon based at 1046. Be- evidence probative.” udicial than J.A. preliminary showing I drug no evidence of the fact that think cause there was other this trial. Then- dog pact this has a on the outcome of made has been fair error. introduction was thus harmless dog does.” reliability in what the degree of added). But once (emphasis J.A. at dog dog-train- fact

again, reliably detect narcotics is relevant.

er that the de-

The unrebutted studies show currency of narcotics on is an unre-

tection particular de- indicator of whether

liable narcotics, with illegal involved fendant is Lynn HARVEY, In re Diana detect dogs’ ability if the narcotics even Debtor-Appellant. does”) dog perfectly “what (doing No. 98-4094. reliable. Appeals, United States Court of issue,

Despite our concern this we do Seventh Circuit. dog-sniff admitting not think error. Even without reversible Argued April evidence, there is substantial other evi- 2,May Decided linking Murray Washpun dence both conspiracy specific and to criminal to the

actions.

II.

Second, uneasy I govern- am with the challenged group photo-

ment’s use of the

graphs undiscerning this case. To an

eye, showing photographs the use of the setting in a

the defendants relaxed social

may evidentiary seem be of no conse-

quence. To those who have been victims race, however,

of the subtleties of the con-

ditioning display effect of such a is most case,

apparent. the context of this implications resulting

the racial an from

all-white and an all-black set of defen-

dants, worry I photographs, that the intro- were, early in they

duced as the trial as

likely an ra- improper, not-so-benign had conditioning relating

cial effect. Evidence

to illicit between defendants relationships might

which otherwise be viewed with

skepticism may subconsciously have been

granted degree credibility by virtue of words, photographs In other issue.

they prejudice proba- introduce more than however, again, given

tive value. Once linking

broader evidence defendants to-

gether in this I do conspiracy, not believe

the use im- photographs of these had an

Case Details

Case Name: United States v. Buchanan

Court Name: Court of Appeals for the Sixth Circuit

Date Published: Feb 17, 2000

Citation: 213 F.3d 302

Docket Number: 98-1353, 98-1391, 98-1533, 98-1534, 98-1535, 98-1537, 98-1538, 98-1590, 98-1594, 98-1780

Court Abbreviation: 6th Cir.