United States v. Robert Moss (92-1132) Ronald Kohn (92-1136) Joann Climpson (92-1144) and Randy Richardson (92-1155)
9 F.3d 543
6th Cir.
1994
Check Treatment

*1 surrepti- against mated under ADEA doctrine.7 The issue in after-acquired sole tiously personnel his employer removed confidential evidence cases is whether file, file, photocopied portions plaintiff and would have employee fired the the basis of the showed some the material to a co-worker. misconduct had it known of Milligan-Jensen, the misconduct. Id. at 1467. The court noted that the issue See employer F.2d at 304-305.8 actually an fire whether would employee generate an for could misconduct V genuine issue material fact some cases. reasons,

Citing employee For aforementioned an handbook and an affida- we AF- company grant summary vit FIRM district court’s indicating official judgment for the plaintiff defendant. immediately have would been fired conduct, however, for his the court deter- question

mined employer there no plaintiff

would fired have and the em-

ployer summary therefore entitled

judgment. Similarly, Id. at 1468-70. state- America, UNITED STATES

ments of the Banner officials that McKennon Plaintiff-Appellee, would been newspaper have fired had the known she had removed confidential docu- support summary judgment ments in favor of (92-1132); Robert MOSS Ronald Kohn the Banner. (92-1136); (92-1144); Joann Randy (92-1155), and Defen IY dants-Appellants. next turn We to whether the after- 92-1132, 92-1136, Nos. 92- acquired applies evidence doctrine to cases 1144 and 92-1155. alleged where is an nexus there between the Appeals, United States Court of employee’s misconduct and the discrimina Sixth Circuit. tion cop claim. Mrs. claims McKennon she ied and removed the confidential documents Argued April 1993. job she because feared for her and thus Decided Nov. 1993. justified. her conduct We thus under Rehearing Suggestion Rehearing and for that, stand if her contention to be the Banner En Banc Denied Jan. her, discharge should she would have a lever with which to resist action. We find alleged

that such an nexus is irrelevant application after-acquired of the employee's prior felony County Community of the and conviction See v. Harris Action Jeffries incarceration). Ass’n, (5th Cir.1980) (holding 615 F.2d 1025 plaintiff employee's copying of confidential docu- course, employee’s 7. Of if the "misconduct” falls employer's ments interfered with the interest in category protected into the activities set forth maintaining confidentiality employee rec- ADEA, "opposition to the clause” ords, conduct); protected and thus was not 623(d), § employer U.S.C. could not avoid Co., Douglas O’Day Helicopter v. McDonnell liability discriminatory upon for actions based (D.Ariz.1992) F.Supp. (holding "no 623(d), employee's § conduct. Under conduct, jury O’Day's reasonable would find that Opposition practices; partic- to unlawful removing surreptitiously manage- confidential ipation investigations, proceedings, liti- or desk, supervisor's photocopy- ment files ing gation them, co-worker, showing the file to a circumstances.”). light was reasonable in of the employer It shall be an dis- unlawful for Copying removing confidential documents is against any employees ap- criminate of his or clearly protected conduct. plicants employment ... because such indi- opposed practice any vidual ... has un- made note, section, incidentally, 8. We that if Mrs. McKennon’s lawful or such individ- testified, assisted, theory adopted, apply nexus it would where charge, ual ... made a has employer employee participated any investiga- an takes from her or in an manner tion, proceeding, chap- support anticipation litigation of herself in unlawful under this discharge. ter. *3 (ar- Nesi, Atty. Asst. U.S.

Kathleen Moro Detroit, MI, briefed), gued for U.S. 92-1132, 92-1136 and 92-1155. Nos. (argued and A. Andreoff Christopher briefed), Detroit, MI, for Robert Moss. briefed), (argued H. Neil H. Fink Neil Koelzer, Koelzer, Fink, A. David A. David Fink, Birmingham, H. Law Offices Neil MI, Kohn. for Ronald (ar- Nesi, Atty. Moro Asst. Kathleen *4 briefed), Hiyama, gued Stephen L. Asst. and MI, Atty., Detroit, in No. 92- for U.S. briefed), (argued R. Sasse and Kenneth Detroit, MI, Climpson. for Joann Detroit, (argued briefed), and L.C. John MI, Randy for Richardson. BATCHELDER, Before: and JONES ENGEL, Judges, and Senior Circuit Circuit Judge. JONES, Judge. R. Circuit

NATHANIEL (Moss) and Ron- Robert Moss Defendants (Kohn) convictions and appeal Kohn their ald one count each of sentences on marijua- conspiracy to distribute import and (Richard- Randy Richardson na. Defendant son) appeals for and sentences convictions marijuana conspiracy to and laun- distribute dering drug money. Joann Defendant (Climpson) appeals her conviction money. laundering drug and sentence (1) appeal: Defendants contend a that a district court failed make preponder- established (2) evidence; testimony that ance of the co-conspirator bribe a solicited Moss improperly admitted into evi- witness was (3) trial; privileged at information dence (4) evidence; into improperly admitted impermissible was an variance there the indictment and the evidence between (5) trial; hearsay presented improper (6) trial; admitted at supports defendant insufficient (7) conviction; Climpson’s that defendants counsel; ineffective assistance received (8) in- that defendants were sentenced and correctly Sentencing under the Guidelines. conviction, judgments of but affirm the We resentencing Jaeger purchased quantities marijuana of defendants remand for resale man Climpson. from Mexican named Albert ardson and Later,

Sanchez sometime in 1981. Collins Moss, Jaeger and first met defendant who I. Sanchez, was an associate Albert when 1989, camper driven truck March containing Moss delivered a suitcase Brady crossing was discovered the Unit- Ed marijuana pounds City, them in Rapid pounds border with 329.25 ed States-Mexico negotiated price South Dakota. Moss ceiling. marijuana camper hidden in the marijuana Jaeger. with Collins and Brady Supervised by agents, U.S. Customs Thereafter, larger marijuana deliveries were intended drove the truck to its destination arranged through Moss and were delivered Tucson, people three Arizona where more City Rapid camper Ultimately, trucks. arrested. smuggling involved in the begin Moss asked Collins driv- arrested, Collins, Terry Tom Beranek Those Rapid loads of from Texas to Moreno, pleaded guilty drug and Eli later Detroit, City they agreed. charges Court United District Collins made numerous deliveries mari- began coop- Beranek Arizona. Collins and juana pounds of at least 60 to 90 from Texas erating with the after *5 City Rapid during to and Detroit the follow- ensuing investigation sentenced. The re- year Jaeger single two. made a deliv- ring im- smuggling vealed a involved in the ery unspecified marijuana of an amount of portation marijuana from to of Mexico South during period. Jaeger this Collins and testi- Michigan. Dakota The indictment of the and fied that Moss their directed deliveries. investigation defendants resulted from the of In late to Collins was directed meet marijuana operation. smuggling the smuggling operations Moss in Arizona. The 4, 1991, grand jury federal in On March point were conducted from Arizona after that Michigan an the Eastern District of issued security problems due to at increased the charging indictment Moss and Kohn with one Thereafter, Texas-Mexieo border. Moss di- marijuana of to conspiracy import count each marijuana twenty rected of over deliveries §§ in of 21 violation U.S.C. 952 and and Collins, by Jaeger, Boyd Kennedy, made and marijuana in conspiracy to viola- distribute pounds Beranek in loads of each about §§ 841 A tion of 21 U.S.C. and 846. su- years. over the next three and one-half Jae- April perseding indictment was issued on by ger and Collins were also directed Moss in and which Richardson large money to deliver sums of to facilitate conspiracy to were added the to distribute smuggling operations. the of Deliveries marijuana charged charge, were and also marijuana during Detroit made the area laundering money with violation of 18 this time made to Moss and Kohn. both Finally, §§ 1956 and 2. a second U.S.C. 1987-88, Jaeger winter was After the superseding was in which indictment issued begin overseeing that Kohn instructed would charged it to act in was that Moss continued operations delivery the and that Moss would late furtherance of the as as smuggling lesser the undertake a role 22,1991, co-conspirator by soliciting March winter, ring. following The Tom Beranek potential government to bribe a witness. marijuana. was That win- enlisted deliver juryA trial district commenced ter, or four Beranek and Collins made three days September court on 1991. Thirteen trips of mari- to Arizona and delivered loads testimony forty-two from witnesses en- each. juana pounds Most about sued, during emerged which details of a mar- marijuana at the was delivered Detroit ijuana spanning at smuggling operation least Then, camper driven direction of Kohn. eight years involving at and least fourteen by Brady stopped the Arizona-Texas was at Hence, participants. the case Collins, the facts of leading to the arrests of Ber- border relatively involved. anek and Eli Moreno. Next, associate, at was that Kohn asked his defendant

The evidence adduced trial Richardson, marijuana pounds Terry named David take 100 Collins and an associate repre- Murphy the case. by the ar- office to discuss nervous due to Kohn was ultimately ex-girlfriend, Jacqueline at at Moss that time sented rests. Richardson’s present attorney at Rich- Jaeger she was and his arrived trial. When Hines testified office, this re- Murphy’s Kohn made and Kohn were house when Moss ardson’s marijuana took quest. present. Richardson acquain- it owned in a residence stored During meeting, hun- copies several tance. pages provided dred of documents were that Richardson was introduced Evidence Jaeger’s Murphy.to attorney to assist Jae- marijuana in the Detroit area dealer Terry ger’s possibility The defense. marijuana quantities of generally sold who Collins, Kennedy Boyd and Tom Beranek less, and whose main source pound or one cooperating with the marijuana Hines was Kohn. testified meeting. during At some discussed kept his mari- profits made from meeting point, Jaeger to- Moss left

juana green bag in a which contained as sales During gether to take walk outside. $10,000-$15,000. as Hines sometimes much walk, Kennedy to offer Moss asked bag. green counted $25,000 change gold coins occasionally told Hines that he had to ardson testify. Ultimately, Jaeger or to refuse to money. Kohn He re- give Kohn to meet pleaded guilty to distribute $5,000 meeting bag moved before against marijuana in this ease and testified Kohn on one such occasion. remaining defendants at trial. smoked Hines testified jury pertinent without instructed Climpson, with defendant who jury objection. The returned verdicts grandmother of Richardson’s son. also guilty respect except on all counts *6 Further, accompanied in Richardson Hines Climpson, guilty launder- who was found of pound of to 1 car he made deliveries as J4 money, guilty conspiracy to but not Climpson’s Richard- to house. marijuana. distribute he left his told Hines that sometimes son Moss to two concurrent 292 money bag Climpson’s at house. was sentenced green year imprisonment terms of with a 5 month 23, 1989, bought Richardson a On June supervised release and was fined term up Climpson picked and house. $25,000. to Kohn was sentenced two concur- closing. him to the Hines testified drove imprisonment with a rent 188 month terms money bag green that Richardson took his period year supervised 5 release. $10,000 contained him and that over was with to 121 ardson was sentenced two concurrent bag day, Climpson time. That at that year imprisonment a 5 month terms of in her name at a obtained a cashier’s check supervised term release. was by Richardson at bank which was used local imprison- to a month term of sentenced 63 Climpson paid for the closing. cash the period of year supervised with a 3 ment $9,400.02 check in the amount of cashier’s release. using 32 and other smaller bills. bills $100 af- Hines testified that Richardson returned closing, green bag the and that the

ter II. Hines that empty at time. testified Finding Conspiracy A. that, questioned later told her if pur- the to the source of used about Moss, Kohn and Richardson con house, say he he chase the could bor- permit in that the district court erred tend Climpson. money from rowed the ting co-conspirators’ into evidence statements making finding that a Finally, was introduced that without attorney preponderance of the established David and his came De- was co-conspira Jaeger’s arraign- Dakota for evidence. order render troit South made in furtherance the on March 1991. After tor’s statements ment this case hearsay attorney conspiracy which are otherwise ad arraignment, Jaeger and his Timothy pursuant Fed.R.Evid. Attorney Murphy’s near- missible invited to

549 801(d)(2)(E), by a government findings required parties must show where the the ne- (1) a glected request, that: the preponderance the evidence and district court did (2) existed; make, Castro, against any defendant finding whatever. Here, was a member whom the statement is offered 91. F.2d at the district court made a (3) conspiracy; conclusory. of the statement finding, albeit course of and furtherance made The district court’s determination this Rios, conspiracy. See States v. United case is more similar the determination (6th Cir.1988) curiam), (per Curro, adequate in deemed 847 F.2d at 328- 1031, 109 840, 102 cert. U.S. S.Ct. 29. While court cautioned that “a mere Vinson, (1989); conclusory always statement will not suffice” 149, 152 (6th 606 F.2d adequate Enright findings, as it concluded 1074, 100 L.Ed.2d specific findings required that no where (1980); Enright, States v. United conspiracy alleged many acts involved (6th Cir.1978). The 986-87 district court people, say the court was “able finding gov required to make a government with confidence that the met its burden, may ernment has met its but admit case, gov- burden.” Id. In the instant subject in question to a later statements proof ernment’s burden of clear- likewise was Vinson, ruling that this burden was met. ly Notably, met. do not defendants herein Here, the district court specific co-conspirator cite statements subject co-conspirator statements admitted object. which now We reiterate ruling. to later specific Enright findings more preferred government conclusory contends that and that statement will not suf- adequate every judge finding made an fice in district case. we conclude court, ease, proof met its burden of district commit- when, government pointed by failing specific out that ted no to make after error more made, yet findings had not been the court under the circumstances of this case. stated that he “didn’t make that determina clearly no tion on the record but there is Bribery B. Solicitation

problem.” point, At that defendants made Moss, argue Kohn and Richardson findings. objection request no for further *7 that solicitation of to Moss’ bribe Generally, a district court’s determination during was not witness made the course that its the carried burden Therefore, conspiracy. the that contend proof is reviewed for abuse discretion. testimony concerning in the solicitation was Curro, 325, v. 847 328 United States F.2d hearsay, to the admissible reference (6th denied, Cir.), 843, cert. 488 109 U.S. been solicitation should have stricken (1988). However, 116, 102 S.Ct. superseding the as sur second indictment government argues the the determina plusage. only tion in this case should reviewed for be con clear error because defendants made no Generally, hearsay statements objection temporaneous district court’s made after a has ended are not Enright findings failure to make at trial or to States, See v. United admissible. Krulewitch adequacy findings govern of its after the 718, 440, 442-43, 716, 69 93 336 S.Ct. U.S. brought ment it to the district court’s atten (1949). Moreover, L.Ed. 790 However, tion. not reach ques we need objectives has when its have been ended tion of which standard review is most impossible. or have rendered achieved been appropriate because we conclude that no re States, Wong See Sun v. United 371 U.S. Curro, was versible error committed. See 490, 471, 407, 418, 83 441 S.Ct. 9 L.Ed.2d 847 F.2d at 328 n. 3. (1963). However, nonhearsay statement conspir The circumstances of this case differ from need not be made furtherance of a Castro, acy those involved United v. 908 to be admissible. Anderson v. United (6th Cir.1990). Castro, States, 219, 2253, 2260, 211, F.2d 417 94 S.Ct. 85 In this court U.S. (1974); Enright concluded a limited remand for 41 20 Lutwak v. United L.Ed.2d 550 481, 604, 618, 489, appeal, defendants claim that this

States, 73 ment. On S.Ct. 344 U.S. (1953). attorney- protected information is under 97 693 L.Ed. privilege. Moss and Kohn client Here, testimony solic Jaeger’s that Moss objected testimony not on to the at trial cooperating wit a bribe ited him to offer hearsay only grounds privilege but testimony hearsay. ness is not fact, specifi grounds. counsel for Kohn prove the truth of the in evidence to “offered objection upon cally any based renounced asserted,” not fall therefore does matter privilege. Accordingly, the claimed error hearsay. See Fed. the definition of within plain See will reviewed error. be Foltz, 801(c); v. 773 F.2d Martin R.Evid. 1277, Causey, F.2d v. 834 1281 (6th denied, 711, U.S. cert. 478 720 (6th Cir.1987), denied, 1034, cert. 486 U.S. (1986). 3336, 1021, 741 92 L.Ed.2d 106 S.Ct. (1988). 2019, 100 606 108 L.Ed.2d S.Ct. Rather, testimony was offered the fact that solicitation establish Generally, attorney-client privi testimony Accordingly, prop made. “(c)onfidential lege extends to disclosures erly admitted. attorney made order to a client ref also contend Defendants Liggett legal v. obtain assistance.” Haines should have erence to the bribe solicitation (3d Cir.1992) Inc., 81, Group, 975 F.2d 94 superseding from the second been stricken States, (quoting v. 425 U.S. Fisher United 7(d). pursuant indictment to Fed.R.Crim.P. 391, 403, 1569, 1577, 96 48 39 S.Ct. L.Ed.2d only for an abuse This claim will be reviewed (1976)). joint A of the defense extension Kemper, See United States of discretion. attorney-client privilege applied to has been 327, denied, Cir.1974), cert. 329 503 confidential communications shared between 810, 824 95 S.Ct. L.Ed.2d U.S. “part on-going of an co-defendants which are noted, As defendants contend joint up effort set common defense in fur the solicitation was not undertaken Haines, (quoting strategy.” 975 F.2d at 94 underlying drug conspiracy. therance the (3d Gagnon, Eisenberg v. “if this court has noted that Cir.), cert. 474 U.S. language in is the indictment information (1985)). 342, 88 L.Ed.2d 290 The burden to government hopes properly which the privilege applicability of the establish the trial, prove at it cannot be considered sur Haines, upon the 975 F.2d at defendants. may prejudicial plusage no matter how it be relevant).” course, (provided, legally it is Thomas, United States v. Here, noted, no plain error occurred. As (citation (6th Cir.) omitted), n. 2 specifically that he counsel Kohn stated 110 S.Ct. 107 L.Ed.2d object question did not (1989). Here, question information Moreover, upon privilege. defendants based *8 proven by at trial and joint on-going “an effort did not establish Thus, legally relevant. the district court up strategy.” a common defense Un- set refusing its did not abuse discretion ease, defen- der the circumstances of this delete the reference to solicitation from the appeal unavailing. claim on is dants’ superseding second indictment. Improper D. Variance Privileged Communications C.

Moss, Next, argues that an im Kohn and Richardson next conspira concerning proper variance exists between contend that information cy in bribery charge contained in the meeting during which the solicitation to distribute government’s proof at privileged is inad dictment and the trial. was made therefore Specifically, Specifically, that multi at trial. ob Richardson contends missible defendants ject testimony regarding very ple conspiracies proven at rather fact that trial occurred, single conspiracy to meeting partici and that the than a overall distribute Also, co-eonspira marijuana. asserts the re pants which discussed individual jury cooperating govern- claim that should have been might tors be lated

551 respect instructed the district court with he was concerned because others involved in multiple conspiracies. conspiracy had been arrested. Essen- tially, Richardson undertook an act in fur- First, request Richardson did not a multi therance of the conspiracy overall to distrib- ple conspiracy instruction at trial. There marijuana by ute Viewing this act. the evi- fore, this claim will be reviewed for clear light dence in the most favorable to the Pearce, error. See United States v. 912 F.2d government, it is concluded that no clear (6th denied, 159, 163 cert. 498 U.S. error was instructing committed in jury. 1093, 978, (1991). 111 112 L.Ed.2d S.Ct. 1063 Furthermore, no variance between the indict- noted, supplants As this claim Richardson’s ment and the evidence adduced at trial oc- multiple conspiracies contention curred. proven at trial. the district court in instructing committed no clear error Hearsay Testimony E.

jury under the facts of this case. “(i)f only Variance occurs one Climpson on appeal contends alleged in the indictment and the evidence hearsay testimony inadmissible was admitted reasonably adduced at trial can be construed against into Specifical evidence her at trial. support finding multiple conspiracies.” ly, Climpson objects testimony to Hines’ Paulino, 739, United States v. 935 F.2d 748 just Richardson told Hines say that “he could — Cir.) (6th (citations omitted), denied, cert. $9,400.02] he borrowed [Climp [the —, 315, 112 U.S. S.Ct. 116 L.Ed.2d 257 However, Climpson son].” raised no contem — denied, —, and cert. U.S. 112 S.Ct. poraneous objection testimony to this at trial. — 323, denied, 116 L.Ed.2d 264 and cert. Moreover, hearsay is not be —, 660, U.S. 112 S.Ct. 116 L.Ed.2d 751 cause it prove was not “offered in evidence to — (1991), denied, U.S.—, and cert. 112 the truth of the matter asserted.” See Fed. (1992). 883, 116 S.Ct. L.Ed.2d 787 801(c); Martin, R.Evid. 773 F.2d at 720. required only reversal is where the substan Therefore, this claim is without merit. rights tial of a defendant have been affected. Bakke, 977, United States v. 985 Sufficiency F. of the Evidence (6th Cir.1991) (citing United States v. Gruns Next, Climpson claims that her (6th 1231,

feld, Cir.), 1238 cert. money laundering supported conviction is not denied, 219, 434 U.S. 98 S.Ct. 54 by constitutionally adequate evidence. This (1977), L.Ed.2d 152 and cert. claim will be reviewed for a manifest miscarriage justice did (1978)). Moreover, single conspiracy “a does judgment renew her motion for a multiple conspiracies not become simply be acquittal at the close of evidence. See Unit cause each member of the did not Faymore, ed States v. member, every know other or because each Cir.), 469 U.S. 105 S.Ct. member did not know of or become involved Moreover, L.Ed.2d in all of the activities furtherance of the light must be viewed most Bakke, conspiracy.” (quot 942 F.2d at 985 government. favorable to the Id. Rios, 872). 842 F.2d at “Whether single multiple conspiracies have been The elements of the launder *9 usually question shown is a of fact to be Climpson charged offense with which was by jury proper resolved the under instruc (1) are: proceeds use of funds that are of appeal tions and to be considered on in the (2) activity; knowledge unlawful that the light government.” most favorable to the proceeds activity; funds of unlawful Grunsfeld, 558 F.2d at 1238. (3) attempt conduct or to conduct a financial

Here, participation transaction, knowing Richardson’s in the that the transaction is marijuana overall designed part disguise to distribute in or in whole the nature, location, source, relatively was indeed minor. ownership, Rich- or control agreed accept delivery ardson proceeds. of 100 of the See 18 U.S.C. 1956(a)(l)(B)(i). pounds marijuana § of Recently, after Kohn told him that this court ad- 552 necessary Climpson’s Viewing the evidence proof house. quantum of

dressed light govern- under most favorable to the money laundering conviction support a ment, that no evidence exists of record such § in United States v. 1956 18 U.S.C. (6th Cir.1993). justice miscarriage In of occurred. McDougald, 259 manifest case, mon- vacated defendant’s that the court Ineffective Assistance of Counsel gov- G. laundering noting that

ey conviction (1) money prove: not that ernment did attempt claims to assert Defendants (2) money; drug or that question was Howev assistance counsel. ineffective money drug that was defendant knew er, claims counsel ineffective assistance at 261-64. money. McDougald, 990 F.2d ordinarily on direct should not be addressed Certainly, money laundering conviction is except appeal case in which the unusual constitutionally adequate evi- supported by permit court to adequate the record is suffi- “the record contains dence where assess the of the claims. See United merits juror to convince a reasonable cient evidence Daniel, 540, 543 Cir. States beyond a doubt [defendant] reasonable 1992). case, instant conclude we money.” knowingly drug laundered claims should not be addressed defendant’s Further, McDougald, F.2d at 990 appeal direct claims are such association court noted that defendant’s mere pertinent that matters the record are outside constitutionally drug with a dealer to the issue. adequate laundering drug McDoug- money knowingly was undertaken. Sentencing H. Issues ald, instant 990 F:2d at 262. While the case 1.Quantity Drugs McDougald respects, in some it is similar to miscarriage of that no manifest is concluded First, Moss, Kohn and Richard justice here. occurred marijuana- object quantity of at son to the sentencing tributed to them at the district case, Climpson In this not contest the does Generally, this court review court. will money procure she fact that the used to for clear error the district court’s conclusions closing drug at the cashier’s used cheek regarding quantity drugs involved for money. Climpson maintains that sentencing purposes. v. Wal money knowingly,launder the she did not ton, 1289, (6th Cir.), 908 1300-01 F.2d question. that Rich- The evidence showed denied, 273, 111 112 498 U.S. S.Ct. Climp- closing ardson left to attend the L.Ed.2d and cert. 498 U.S. possession green money bag son in of his and cert. S.Ct. L.Ed.2d 541 $10,000 containing Richardson over cash. 498 U.S. going told Hines to make a down that he quantity drugs payment on a house. Hines testified that preponderance must be established only money kept obtained from Walton, 908 at 1301-02. the evidence. F.2d marijuana green bag. in.the Prior sales Moreover, may defendant be sentenced Climpson purchased cash- closing, to the upon quantities drugs attributable based $9,400.02 using ier’s check in the amount of provided conspiracy, to other members of a Upon and other smaller bills. bills $100 quantities the district court finds those return, green bag Richardson’s reasonably known to defendant were empty. foreseeable him. United v. Medi Moreover, Hines testified that (6th Cir.1993). na, 590-91 marijuana smoked with Richardson Climpson. respect Moss With to defendants sold Kohn, accompanied properly court found Hines testified that she the district import pound to 1 and distribute ardson his car as he delivered 34 *10 10,000 3,000 marijuana quantities Climpson’s following between to house tele- involved marijuana. phone Climpson kilograms of conversations between specific testimony which Hines that cited the court to Richardson. told he money supports finding court’s and cites occasionally green bag would leave his district In reasonably this court to that as well. which was known to him or fore- 3,000 short, kilogram quantity attribut- seeable to him. by a

able these defendants was established Money Laundering preponderance of the evidence and no clear Base Offense error occurred. Level appeal, For the first time on defen Next, spe the district court made a Climpson dants and Richardson claim that cific that acts attributable others the district court sentenced them under an 1,000 8,000 involving kilograms between inapplicable particu base offense level. marijuana reasonably of foreseeable to lar, defendants contend that the district government argued Richardson. After the incorrectly court sentenced them under that Richardson should be held accountable 2Sl.l(a)(l) § U.S.S.G. rather than marijuana for the entire amount of involved 2Sl.l(a)(2). § Essentially, a base offense underlying conspiracy to distribute applicable level 20 is laundering marijuana, the district court concluded that “merely offenses which conceal a serious 1,000 3,000 only kilograms were attribut already place,” crime that had taken while a able to Richardson. the district applicable base offense level 23 is to mon specific findings court did not make more ey laundering offenses which “encouraged or explain fact or otherwise its conclusion that facilitated the commission further crimes.” amount was this attributable Richardson. comment, 2S1.1, § (backg’d.) U.S.S.G. error, Although reviewed clear (amended 1991). 1, argu eff. Nov. At oral finding must have “some minimum indicium ment, government acknowledged Robison, reliability.” See United States v. incorrect base offense level was used (6th 365, Cir.), 904 F.2d cert. court, district but characterized the error as 111 S.Ct. 112 L.Ed.2d 323 in technical nature. While this court reviews guidelines issues which have been waived were not asserted in the district Here, no basis for the district court’s con- error, court for clear see United States responsible clusion Richardson is for at (6th Nagi, v. 947 F.2d 1,000 kilograms marijuana least is obvious — U.S.—, 112 S.Ct. noted, from the record. As has been (1992), application of a marijuana ardson was shown to be a seller of clearly incorrect base offense level in sen quantities pound in of one or less. Other- tencing be deemed will clear error under the wise, conspiracy his direct involvement Accordingly, circumstances of this case. we marijuana taking to distribute limited conclude that remand to the district court for possession pounds marijuana of 100 resentencing and Richardson is Kohn at a time when Kohn was concerned required respect to this claim as well. co-conspirators. Clearly, due to arrest of shipments marijuana further from Mexico 3. Obstruction of Justice Further, doubt. no basis for Rich- marijuana ardson to foresee that more would Moss contends that the district court conspiracy point adjusting be involved at that erred his offense level because apparent Accordingly, willfully justice. Generally, from the record. we he obstructed conclude that a remand to the court district the district court has discretion considerable resentencing required. of Richardson is to determine “whether a defendant’s actions course, may justice punisha Of the district court resentence constitute an obstruction of upon quantities guidelines, Richardson based of ble under the and we review such involved in the which decisions under an abuse of discretion stan Medina, are attributable to him. the court dard.” United v. Cir.1993) by preponderance (citing must find of the evidence Bennett, (6th Cir.1992)). quantities directly that such attributable Here, him, or are attributable to him due to court the district found that it was conduct of others involved reasonable to conclude that testified *11 face of defen- alleged cognizable clear error truthfully respect to the solicita- dants’ waiver. by to bribe a witness. The tion of him Moss adequate is district court’s determination clearly is not erroneous. III. reasons, the foregoing For the defendants’ Participant 4. Minimal or Minor The are AFFIRMED. sentences convictions Richardson contends that the dis Kohn AF- Moss and defendants denying request a trict erred his court The sentences of defendants FIRMED. as a minor

reduction of his offense level Climpson are VACATED Richardson and The district participant the offense. case REMANDED to the district and the is findings regarding of fact whether court’s resentencing court for of those defendants. is entitled the reduction will Richardson Nagi, for clear error. See be reviewed BATCHELDER, Judge, Circuit prove at must 214-15. Defendant concurring. by is preponderance of the evidence that he clarify I separately simply to what I write 215; to the United entitled reduction. Id. appropriate believe to be the standard Kingston, v. Enright of the issue and the outcome review — —, majority dictated that standard. (1991). Here, 2054, 114 L.Ed.2d 460 opinion first abuse-of-discre- references the did not the record reflects standard, says tion then need not reach “we carry proof. Although his burden of he al is question which standard review leges marijua that he was small-time appropriate we conclude most dealer, participate conspira na he did committed,” fi- no reversible error cy delivery accepted to the extent that he says “no I nally there was error.” believe we marijuana. Therefore, pounds ap- must decide which standard review that Richard district court’s determination plies, prior not because our case law does participant son was not minimal minor is conclusory suggest that the district court’s clearly not erroneous. entirely unobjection- statement this case able. Depart 5. Refusal Downward Gessa, 971 F.2d 1257 appeals the district (6th Cir.1992) (en banc), Court, sitting en grant him a de court’s refusal to downward banc, said:

parture. a district court’s refusal nonappealable. depart simply downward is Although apply it is often stated we Dellinger, See States v. 986 F.2d 1042 United abuse of discretion standard to a dis- (6th Cir.1993); Pickett, evidentiary United States v. rulings, trict court’s we believe (6th Cir.1991). According broadly 417-18 sweeps regard this statement ly, 801(d)(2)(E), this claim is without requires merit. Rule which legal

specific factual determinations and Claims Miscellaneous conclusions be made in order the evi- In order dence be admitted. to admit Finally, defendants raise two re co-conspirator under the statement of sentencing guidelines maining issues which 801(d)(2)(E), it must first be Fed.R.Evid. will be deemed waived because existed, determined that Nagi, in the district court. See asserted that the defendant was a member of F.2d at 213. Richardson contends that the conspiracy, co-conspirator’s and that granted court have him a re district should made “in furtherance of statements were upon acceptance respon duction based conspiracy.” These are factual deter- Also, sibility for his acts. Moss contends clearly governed minations errone- organizer that he was not an or leader of at ous standard of review. people, specifically he least five a claim with sentencing. drew at it is conclud ... district court found the three [The 801(d)(2)(E) components ed that neither of these claims constitutes factual *12 factual Based on these determina- met.]

tions, district court concluded that SIMMONS, Plaintiff-Appellant, Robert 801(d)(2)(E) permitted Rule the “other- v. co-conspirators’ hearsay” wise state- City Evanston, Ronald PRYOR and hearsay.” ments to be received as “not Defendants-Appellees. law, question This is a which we re- view de novo. No. 92-2462. (footnote omitted). citation

Id. at Appeals, Court Thus, ordinarily appropriate standard Seventh Circuit. majority’s is not the blanket abuse-of- review Argued April 1993. standard, but the dual standard discretion Sept. Decided 1993. noted in Gessa—factual conclusions reviewed legal for clear error and conclusions reviewed As Rehearing Amended on Denial of case, however, de novo. this the defen- Suggestion Rehearing In Banc object dants failed to to the court’s concluso- Dec. ry finding. object any This failure to waived may allege, claim of error the defendants see resulting

Fed.R.Evid. and our standard error, plain

of review is that of see Fed. 52(b). 103;

R.Evid. Under Fed.R.Crim.P. standard, plain error we review the al-

leged seriously error to see whether it affect- rights unfairly

ed substantial and had

prejudicial influence the outcome Young,

case. See United States 105 S.Ct. 84 L.Ed.2d

Reviewing the court’s under the standard,

plain error I find no manifest mis- justice.

carriage of The district court consid- Enright

ered issue and decided that “clearly problem”

there was ... no

admitting My independent the evidence. re- supports

view of the record this conclusion. request

Because the defendants did not more issue, findings I plain

detailed on the find no agree majority

error and thus with the assignment unpersuasive. of error is