*1 Cir.1996). And no the State has tena- three statements police S.Ct. 763. saying surprised basis for that it was ble requirement. satisfy that to by this evidence its relevance ample court also had The district Nearly eight months before conviction. argument grounds accepting for Harris’s Harris filed a hearing, sup- the state-court to police made these statements support plemental memorandum his trial, at the Ward testified Ward. After for a new trial he motion to which attached evidentiary hearing police state-court claiming that an affidavit Ward him, promises had made these officers made these police Having statements. then, and has did not offer and the State challenge accuracy factual failed to since, any the con- evidence to offered testimony state Ward’s before the courts no that Ward trary. It makes difference court, and the district the State cannot versions of ultimately gave three different challenge now. The time to submit evi- exami- preliminary at Harris’s events: one evidentiary hearing dence or seek an Har- nation, in an affidavit attached to one allegations factual become the basis before new one at the motion for a trial and ris’s State, against for a decision not after. That hearing itself. post-trial-evidentiary Because Harris is entitled to a new trial on testimony preliminary-examination Ward’s claim, Brady need not reach the his we respect— affidavit in one differed from his cross-appeal. raised arguments his him by disclosing exchanges between the whole police and the course IV. —is central point Brady of his claim and the reasons, For these we affirm only And difference premise of it. Brady assessment of Harris’s claim testimony affidavit and his between Ward’s the district court and remand case to hearing evidentiary post-conviction claims eleven and to dismiss ten and trivial. In his affidavit Ward said judgment granting enter the conditional day of told him prosecutor writ in favor of Harris. that he would preliminary hearing Harris’s consistently if he testified
be released (and statement that Ward second any made deny promises
should him), post-conviction hear- while at the America, UNITED STATES ing police he said that one officers Plaintiff-Appellee, things. these That minor difference said v. testi- rejecting not mandate Ward’s does when the mony, especially State (07-5600), Jeffory Morris C. YOUNG testimony or day present any has failed to (07-5608), Defendants- rebutting Appellants. version of evidence Ward’s events. 07-5600, 07-5608. Nos. alternatively urges us The State Appeals, United States Court the case to the district court remand Sixth Circuit. hearing evidentiary an at which the State Argued: Dec. prom attempt can to show that 30, 2009. Decided and Filed: Jan. But the were never made. ises/statements Rehearing En Banc Rehearing and request made that to the dis State never Denied 2009.* April it on court and thus has forfeited trict Elec., v. Ma- See Enertech Inc. appeal. Comm’rs, 257, 261 County
honing * grant in his rehearing for the stated dissent. Judge would reasons Merritt
MOORE, J., opinion delivered the court, COLE, J., joined. in which MERRITT, 1056-57), (p. J. delivered separate opinion concurring part and dissenting part.
OPINION MOORE, Circuit KAREN NELSON Judge.
In named Morris (“Roller”) Jeffory Young (“Young”) twenty-count as defendants superseding indictment. Count one charged men both *5 marijuana 1000 or more manufacture plants and to distribute 1000 or more kilo- grams marijuana. Roller of and jointly, jury were tried and the convicted conspiracy involving each man of more marijuana than less than 1000 100 but plants and more than 100 but less than marijuana. and kilograms Roller Young were also convicted of the substan- tive with were offenses which charged. The district court sentenced Roller and to serve months 224 months of Roller imprisonment. serve appeal and their and convictions their sentences. Strianse, Tune, Peter J. En- ARGUED: Young allege Roller that: appeal, On and Tennessee, White, Nashville, & trekin Ger- (1) erroneously admitted the district court Summers, Wyatt, H. & Chat- ald Summers (2) court when hearsay; the district erred Tennessee, Perry for tanooga, Appellants. applied leadership-role sentencing en- Piper, H. Assistant United States Attor- (3) hancement; the district court erred Tennessee, Appellee. for ney, Chattanooga, Strianse, considering acquitted conduct sentenc- Tune, En- BRIEF: Peter J. ON (4) Tennessee, ing; proce- their White, Nashville, sentences & trekin Ger- Schalk, substantively Summers, durally and unreasonable. Marya ald H. L. Sum- Tennessee, Young argues that the district also Wyatt, Chattanooga, & mers it admitted statements erred when Appellants. Perry Piper, H. for Assistant force collect the use of Attorney, Chattanooga, States Ten- United drug-related Roller asserts nessee, debts. Appellee. for jury’s to the response MERRITT, MOORE, of the con- question regarding the duration Before: AF- COLE, prejudicial error. We Judges. spiracy was Circuit agent FIRM Roller’s and convictions Tennessee Bureau Inves- tigation assigned investigate who was and sentences. Delaney’s testimony Young. I. BACKGROUND1 largely concerned mechanics investigation involving an After confi- investigators audio surveillance that used informants, wiretaps, dential and surveil- in this case. lance, Roller and were arrested for government The called next one relating marijuana grow-
various crimes witnesses, key informant, a confidential ing and distribution. Based inves- (“Foutch”). Julia Foutch At the time that tigation, were indicted testified, probation she Foutch was on for A few grand months felony endanger- conviction for reckless later, filed a superseding manufacturing ment of child twenty-count indictment. first count The methamphetamine. Foutch as an acted charged both men with a informant hopes helping her hus- marijuana manufacture or more prison band was in for manufacturing who plants and to distribute 1000 more kilo- methamphetamine. Most of Foutch’s tes- grams marijuana in violation of 21 timony concerned her recorded interac- 841(a)(1) 841(b)(1)(A). §§ U.S.C. tions with Roller. Per instructions from indictment charged Roller with thirteen investigators, periodically pur- Foutch additional and Young counts with six. chased a pound from Roller. charges alleged Each of these substantive Over years, the course of two Foutch distribution of or the use of a bought pounds marijuana about sixteen *6 telephone delivery to facilitate the of mari- majority from Roller. The of Foutch’s 841(a)(1) juana §§ violation of U.S.C. recorded, conversations with Roller were 841(b)(1)(D). joint and Young’s and and many recordings played these were began January 29, trial on 2007. for the Foutch on while the was argument, In opening govern- the jury listened, stand. After the Foutch ment that and Young contended- would explain meaning the of the recorded involved in large-scale, long-term were a conversations. conspiracy grow, import, to and distribute Foutch testified that Roller Young and marijuana. Young Roller and admitted asked to her collect debts outstanding they marijuana, had sold but contend- (“Holt”), from Connie Holt Kenny Stewart they ed that had done so on a small scale (“Stewart”), Jimmy (“White”), and White they and involved the vast who Young individuals owed Roller and by government. described the money previous marijuana for purchases. trial, During the of the govern- course attempts money Foutch’s to collect from
ment called fourteen witnesses. recorded, these individuals were and re- government began its case call- cordings of her conversations with them ing Delaney Mark a (“Delaney”), special were admitted.2 Foutch asserted general summary This section contains a The district court admitted Stewart's and testimony presented and evidence nonhearsay White’s statements as statements trial- specific coconspirators statements and information will be under Fed.R.Evid. analysis 801(d)(2)(E). addressed section where rele- Holt's admit- statements were vant. nonhearsay ted as because the district court pro- determined that were introduced to White, Stewart, 2. Statements prove made vide context not to of the truth Holt to Foutch form the basis for some of matter asserted. These statements will be Young’s arguments appeal. greater Roller's on discussed in infra. detail Holt, explained money July on 2002. Balsamo to from she went collect when arrived, Hispanic testified when the truck six hit her in the head. Foutch males Holt assault, Roller and individ- that, a of this unloaded truck. Each of these result Holt’s charges relating sent others to collect debt uals was later indicted on kept Balsamo, Holt locked delivery. According and that individuals to these days. individuals, for in her bedroom three six addition these there present prop- were two white males on the addition, Foutch testified that she In erty delivery. day on Balsamo agreed methamphetamine to obtain try pickup stated that he saw white truck Roller, for that Roller sometimes made Young’s truck at the deliv- looked like her, romantic towards advances ery spoke Balsa- scene. Later with pay offer to her accept she tried Roller’s mo voluntarily admitted that he was $10,000 pick up to Dallas to load drive delivery. property day on the marijuana. Importantly, Foutch also told that it Balsamo was meeting at her first testified that property trying but that had been Roller, her that he had lost a he told occupant, it to to sell the current Jaime marijuana at Judge truckload of Purser Valdivia-Perez. maintained he government intercept- Hill Lane when the knowledge regarding no the seized ed it. This conversation was not recorded. truck or its contents. On cross-examina- lengthy testimony, Greg After Foutch’s tion, property’s Balsamo testified that the Byford took the stand. At time electricity in the name of Jaime Valdi- jail serving testimony, Byford was via-Perez and that Jaime Valdivia-Perez for metham- four-year sentence his second delivery. the time of arrested at felony conviction. The phetamine-related Byford’s testimony regarding After immunity. government granted Byford use delivery, the government controlled called Byford testified that between 1996 and (“Goff’) Wayne to the stand. Charles Goff helped Young prepare he testimony, At time of his Goff was in by “stripping” for sale prison violating federal conditions plants. Byford explained that for few *7 that had been supervised of his release he, Roller, days along year each with part as of imposed his sentence his and six would Young, people, about other conviction for to manufacture gather to remove the leaves from methamphetamine. Goff testified he marijuana approximately stalks of marijuana dealing had been involved plants per year. Young3 mid to late with since the 1980s testified, Byford government After years four in the mid- and that for about presented testimony of a forensic 1990s, pounds around 100 of he sold The foren- agent. and a customs chemist per marijuana month. variety a of state sic chemist identified identi- a forensic chemist After second containing marijuana and as testi- exhibits ex- government fied the of other contents weights of each exhibit. The fied as marijuana, government called hibits as Enforcement Immigration Customs (“Balsa- County. The sheriff of Dekalb sheriff Special Agent, Balsamo James Foutch that he had worked with mo”), testified regarding the controlled de- testified in- acting a confidential while she was containing pounds a truck livery of con- various Purser Hill Road formant identified where marijuana Judge to 46 ("J.A.”) Appendix cerning marijuana.” Joint but that 3. Goff testified he knew Roller (Trial 432-34). relationship Tr. at a him "con- 888-90 he did not have 1980s, buys involving trolled Roller had taken offenses. in the Beginning late place. bought increasingly large quanti- Amonett marijuana ties from Roller. Amonett Next, (“Nelson”), Kerry Nelson for- a pounds stated that he had seen mer undercover narcotics officer with the marijuana in a property. barrel on Roller’s County Department, Rutherford Sheriffs Once, a pound Amonett obtained of mari- Nelson, According to in 1998 testified. juana from while Roller out of during operation, a he sting tried to sell pounds marijuana fifty Murray to Pete town. Amonett told the that he had (“Murray”). explained Nelson growing marijuana Roller seen and that he sting was unsuccessful Mur- because when helped Roller Young strip had mari- ray purchase the marijuana, arrived to Amonett, juana. According told Murray they told Nelson that would have him that Roller and almost had go get money. to “Jeffs” house to caught police intercepted been when the a 545). (Trial J.A. Tr. at Per proto- marijuana truckload of intended for them. col, planned Nelson refused to leave the testified, After Amonett government despite Murray’s purchase spot assurances Murphy, deputy called Kevin with the would be safe from law enforce- County Department, Warren Sheriffs who ment because the sheriff was Jeffs cousin. regarding testified the search of Roller’s Parsley next witness was Donna property that was conducted when Roller (“Parsley”), girlfriend. Roller’s Under Next, Wilder, was arrested. an Charlie immunity, Parsley grant testified officer with the County Cannon Sheriffs helped she had once money Roller count Department, testified the search had told her that he that was conducted after the truckload of significant quantities money buried intercepted Judge on Purs- property. cans er Hill Road. testified, Parsley After the government Then government called Mur- Pete (“Miller”), Billy called Miller in- former ray (“Murray”), who testified that since vestigator County. in Dekalb In the late he buying marijua- 1980s had been placed Miller a motion-activated na from and reselling it. When camera near patch town, was out of Murray obtained captured woods. This camera an image marijuana from Roller. The bulk of Mur- two men who later identified as Roll- ray’s testimony concerned con- recorded er and Young apparently cultivating Murray versations Young. between marijuana plants. Miller testified After the Murray informed *8 Young Roller and were indicted based intercepted marijuana-related that had these but photographs that their state- phone conversations Murray between jury. court trial in a hung ended Young, Murray agreed to act as a confi- Next, (“Estes”), Ricky Estes a truck government dential informant for the Woodbury, Tennessee, driver from took record Young. to his conversations the stand. Estes testified that on or three government played The recordings of occasions, four he had helped Roller and Murray’s which Young, conversations with Young marijuana. strip Murray explained jury. to the Estes was followed on by the stand Ken- Murray grown testified that he had mar- Wayne (“Amonett”), neth Amonett another ijuana Young and that in acquaintance had advised him Young. of Roller and Amo- occasion, regular marijuana nett was a this endeavor. On Murray user had had who spent jail marijuana-related time in helped Roller and Young strip marijuana. him government, and Roller called because a man who had Murray also mentioned mar- Murray fifty of pounds sell confusion over Miller’s exact testi- offered to some ijuana had abandoned the deal Young’s but who in mony prior Roller’s state- they that to Murray insisted needed when court trial. Roller’s mother re- testified deal. complete to go to house family, garding Roller’s the fact that Roll- testimony contained various Murray’s also write, er was unable to read and and Roll- area enforcement was that law implications tendency exaggerate. Young to called er’s Murray once told that corrupt: Young witness, Barker, a utility-compa- one John County law enforcement would not Cannon official, ny electricity who testified Murray Young and that Roller and bother Judge at 46 Purser Hill at subscriber Road state-court not retried after their were marijuana intercept- time that the in marijuana growing trial for ended rebuttal, In ed was Jaime Valdivia-Perez. they paid had the DA. hung jury because Delaney, the case government recalled Moreover, Murray that after the testified agent, testify regarding to Roller’s and marijuana intercepted, truckload Young’s tax records. Young feared that the Mexicans Roller and statement, closing government In its going come after them and were summarized the evidence that had been However, Murray cars often. switched testimony of presented, focusing on the Murray that also testified that told had they who had stated that individuals marijuana the owner of the truckload marijuana bought marijuana from or sold Young for law apologized bringing had Young. government Young’s property. enforcement to discussing quantities concluded testimony, the Murray’s lengthy After in had involved the evidence it the Tennes- government Delaney, recalled presented. agent, Investigation case see Bureau closing, argued counsel In Roller’s government’s who testified many government’s witnesses were Murray. According to relationship with they credi- drug addicts and were not Delaney, an individual who “has five counsel that Roller ble. Roller’s admitted pounds pot for sale continu- [available] marijuana, sold but told the had some in ously” “upper involved level distribu- proved had not government (Trial marijuana. Tr. tion” of J.A. or had been involved with 1000 921). plants kilograms. or 1000 more more chief, part As the final of its case began closing state- Young’s counsel read into evidence the testi- not arguing that there was ment given mony that Roller and had proof intercept- to the enough tie they on trial in court for while state marijuana. Young’s coun- ed truckload charges brought the state based on highlighted govern- sel the fact that photographs taken beyond presented had little evidence ment trial, At that Roller and patch. drug prove memories of users identify them- stated that could been involved but, photographs, any selves *9 many for drug trafficking large-scale event, growing there were not closing years. brief final state- After a tending marijuana. court by government, the the district ment case, the government After closed jury. the instructed Billy called two witnesses: Miller Roller deliberations, jury out During sent Roller, Roller’s mother. Earlier and Nell one is it trial, following question: “On count had for the in the Miller testified 1044
necessary conspiracy enough for to run from 1992- to merit the base offense level of guilty?” (Jury 2006 to [f]ind J.A. at 335 requested by government. Communication). The re- district court The district court decided that it was sponded as follows: “To a find defendant improper impose sentencing a enhance- One, guilty you on Count must find that weapon. ment for a possessing dangerous conspiracy began there was a ‘in or The also found that it was May about’ 1992 and to ‘in lasted or about’ improper to add two levels for obstruction However, to find a guilty defendant justice, despite possible of perjury you on Count not required One are to find trial, previous state because Roller had not that a defendant was member of the lied before the district court. Because conspiracy from beginning of the con- gone Roller trial had to contest spiracy.” (Judge J.A. at 336 Communica- involved, marijuana amount of the district tion). deliberations, Following jury court declined a sentence reduction found Roller and of guilty a con- acceptance of responsibility. The district spiracy involving at least 100 than but less leadership court concluded that a enhance- marijuana plants kilograms and of proper ment was because Roller and marijuana. jury The Roller guilty found partners people who hired five, of counts two through counts seven help marijuana. strip them twelve, through sixteen, and counts seven- teen, twenty. jury found determinations, making After these six, of guilty counts fif- through thirteen court concluded that Roller’s teen, eighteen, and nineteen. range Guidelines was 188 to 235 months of verdict,
After imprisonment, the district court sen- determined his of- Young. tenced Roller and Roller’s counsel of fense level 36 and his criminal history objected marijuana to the amount of listed category I.of The district court sentenced presentence report argued that Roller to a total of 200 months of imprison- because the had found guilty Roller of ment, years supervised release, of and a a conspiracy at involving least 100 but less $10,000. fine of kilograms marijuana, than 1000 Roller, As it had with the district court should not be sentenced on higher based presentence concluded that the report ap- quantity marijuana. After ar- hearing propriately based Young’s sentence on his counsel, guments by the district court de- involvement with a involving government termined had shown to kilograms more than 1000 marijuana. preponderance of the evidence that Specifically, the district court found that intercepted marijuana truckload of be- proved prepon- to a longed to Roller Young. Although derance was involved with the pounds truckload contained 2318 2318-pound intercepted truckload of mari- put and was sufficient to juana. Additionally, the district court (or over kilogram the 1000 found that Young had sold least 530 pound) alleged by threshold the govern- pounds marijuana Murray and that ment, the district court also found that testimony “the of Mr. Goff certainly would Roller been pounds involved with put quantity well in excess of 2200 house, found at his the 15 67). pounds.” (Sent’g J.A. Tr. at Foutch, pounds he sold to 400 pounds The district court next concluded that as an estimate of what he would have proper to enhance trip received from one sentence Mexico. The district court found that four Roller had levels because of his leadership been involved with 2744 pounds marijuana, conspiracy. role Despite prior *10 ”’ of United v. convictions, conspiracy.” declined to ance the States district court the (6th Cir.2006) as a career offender. Payne, 437 F.3d sentence Gessa, (quoting States v. United placed Young The district (en (6th Cir.1992) banc)). 1257, 1261 The 188 to range as Roller: Guidelines same of district court can consider the contents on an imprisonment based months making the statement this determina history- and a criminal level of 36 offense tion, the statements be I. court sentenced but “must corrobo category of The district “ incarceration, by independent to 224 months ‘In rated evidence.” Id. release, and a years supervised eight evidentiary reviewing a trial court’s deter $15,000fine. minations, this court de the reviews novo law, e.g., the court’s conclusions decision Young raise four appeal, Roller and
On hearsay, (1) that certain evidence constitutes that: the alleging in common issues erroneously hear- and reviews for clear error court’s admitted district court (2) when it the district court erred say; underpin factual determinations ” leadership-role sentencing en- applied (quoting conclusions.’ Id. legal United (3) hancement; the district court erred McDaniel, v. States conduct sentenc- considering acquitted .2005)). Cir (4) proce- ing; and their sentences appeal substantively unreasonable. durally and court’s decision to admit under Rule district court argues also 801(2)(d)(E) by statements made White by admitted erred when it statements and Stewart to Foutch. Foutch testified the use of force to collect money collect attempted that she Roller asserts that drug-related debts. gov- White and Stewart owed Roller. jury’s response to the the district sought tapes con- ernment to introduce question regarding duration of the con- versations that Foutch had with White and prejudicial error. have spiracy was We At time Foutch’s Stewart. testimo- jurisdiction appeal to review this of the ny, conditionally admit- the district court judgment pursuant to court’s final conversations under Rule ted § review 1291. Jurisdiction to 28 U.S.C. 801(2)(d)(E). Young appeals also dis- imposed by the district court the sentences Nelson, an trict court’s decision to allow § by 18 U.S.C. 3742. provided officer, testify that while
undercover II. ANALYSIS marijua- Murray trying Nelson was sell operation, Murray of a part sting na as Hearsay A. go would have to told Nelson Coconspirators’ Statements get money necessary “Jeffs” house to Young appeal the dis complete the deal. testi decision to admit certain trict court’s government’s At conclusion of nonhearsay cocon mony statements case, district court found “during the course and spirators made properly been admitted statements had conspiracy.” Fed. furtherance 801(d)(2)(E) fol- and reasoned as under 801(d)(2)(E). In order for a state R.Evid. lows: Rule admitted under ment to be objection under first [T]he 801(d)(2)(E), offering party prove must “ 801(d)(2)(E) a state- that I noted was ‘the preponderance Page 24 and by Jimmy White ment existed, a member that the defendant was where he transcript of the Foutch coconspira conspiracy, know, things says, you among “in other further tor’s statements were made *11 that, yeah, some, not, we have done if talking know it’s true but Stewart and, Roller, guess, about he I Mr. getting by talks about off ripped some but, they’ve done some stuff and traded people, anyway, again, talking we’re around, and, no, it wasn’t And cows. why, why pay, why about he can’t he’s they’re talking owing money about him in having difficulty paying Mr. Roll- to And I think that reasons, Mr. Roller. er.... the same [F]or we’re to evidence case due the basic talking making drug payments about to here, fact, quantities involved and the And, course, of, part Mr. Roller. as a apparently fact that mari- fronted part a conspiracy as this in fur- White, juana I to Mr. think that it’s fair And, therance conspiracy. of the say just to Mr. White was not a course, Mr. Roller wouldn’t be distribut- dealer, purchaser, Mr. a White was if ing drugs Mr. Stewart he wasn’t just one chain cog here of so, getting paid. And I find that so, distribution. And I think that these conspiracy did exist. And that Mr. Roll- owing money statements about him er, as well as Mr. Young were members Mr. Roller are fur- statements made in of it. And that these statements were So, therance of the I conspiracy. do made furtherance of conspiracy. that, one, find number the conspiracy Finally, my final note was statements by preponderance existed a of the evi- by Murray Sergeant Mr. Nelson ... Second, dence. that Mr. Roller was a bringing about pot to Jeff where the it, member of and as well Young. as Mr. money waiting. would be And that these statements Mr. White * * * made conspir- were in furtherance of the [Murray he go would said] have So, acy. objection to those state- back to Jeff to check because Jeff had respectfully are ments overruled. Well, money and so forth. here, The next note that I have ... clearly, clearly was in furtherance 2nd, 2004, February phone call of the It conspiracy. never did come to Kenny Stewart. I think it’s Pages 41 fruition, guess a I because the deal transcript. Again, Foutch down, go didn’t but let’s put way, you know, is begging Stewart off on the Murray that Mr. acting at this time was paying right away, says he it’s a bit in furtherance of the conspiracy because slow. It’s another one of these conver- trying he was get some paying Again, sations about Mr. Roller. supply, guess, time when the I was a I think that Mr. Stewart inwas addition short, I little recall. Roller, to being purchaser from Mr. But, again, I specifically find that a distributor, for the same reasons that conspiracy did exist and being so, find, Mr. White And was. I number conspiracy alleged Count 1. That both one, that a did exist. Num- it, defendants were members of includ- two, ber that each defendant was a ing Mr. Young particular in this case. conspiracy. Finally, member And that the according statements made that Mr. Stewart’s comments and dis- undercover, to the then undercover cussion with Mrs. Foutch here were in agent quoting Murray, Mr. those state- conspiracy. furtherance ments Mr. Murray made in Next, had, the note I I next note had conspiracy. furtherance 12th, 2004, was March Kenny another (Trial 951-54). J.A. at 1407-10 Tr. at Stewart conversation regarding paying Mr. I Roller. think it’s Pages appeal, On Young asserts through transcript. 50 of the I don’t these only buyer-seller statements show
1047
v.
781
relationship
spiracy.”
Bourjaily,
a
United States
that such
relationship, and
Cir.1986).
(6th
539,
conspiracy.4
a
F.2d
545
establish
insufficient
the state-
Young argue that
Roller and
it is
close
we
Although
question,
a
during
not made
question
in
were
ments
not
that
the district court did
conclude
the con-
in furtherance of
course and
finding
clear
in
that
commit
error
White
error the
for clear
We review
spiracy.
coconspirators and that
and Stewart were
that there
findings
factual
district
in
question
in
the statements
were made
Roller and
conspiracy,
a
that
As
dis
conspiracy.
furtherance of the
it,of
and that the statements
part
awere
noted,
men
trict
both
owed Roller
during
made
course
question
in
were
money, indicating
that
significant sums
Gessa, 971 F.2d
in
of it.
and
furtherance
drugs
that
Roller had fronted them
and
light
in
the exten-
Especially
at 1261.
were not minimal.
quantities
involved
testimony regarding marijuana sales
sive
is a
Additionally, receiving payment due
cultivation,
conclude that was not
we
any conspiracy
to sell
portion
critical
for the district court
deter-
clear error
Similarly, the district court’s
narcotics.
case,
mine,
government’s
end
Murray
coconspira
was a
conclusion that
proven
pre-
had
to a
government
that the
erroneous; Murray
clearly
tor was not
were
that Roller
ponderance
question during
in
an
made the statement
conspiracy.
a
members of
large
attempt
purchase
quantity
a
Young’s argument
Young,
marijuana,
statement named
proved
sufficiently
Murray
admitted
mari
later
extensive
coconspira-
Stewart were
that White and
Young.
juana-related
involvement with
question. Roller and
a closer
tors raises
de novo the district court’s
We review
note that
have held
Young correctly
we
these “facts warrant
determination
“
relationship’
a
is not
‘buyer-seller
under
Rule
legal
conclusion
in a
participant
enough to make someone
801(d)(2)(E)
are ad
the statements
drug
‘further evidence indicat-
conspiracy,
118
Rogers,
v.
missible.” United States
in the
knowledge
participation
ing
(6th Cir.1997).
466,
F.3d
Given
to link
de-
enough
can be
larger
repeat
quantities,
evidence
”
conspiracy.’
to the
States
fendant
United
involved,
sales,
fronting
the dis
Cir.2004)
(6th
509, 514
Henley,
v.
360 F.3d
admitting
trict court did not err
Gibbs,
v.
182 F.3d
United States
(quoting
nonhearsay co-
question
statements
Cir.1999)).
(6th
However,
408,
we
conspirator statements.
held that “the ‘trust’ involved
have also
Additionally,
assuming
even
drugs
delayed payment
under a
‘fronting’
White,
admitting
court erred
more
arrangement,
‘suggests
credit
un
Stewart,
Murray’s statements
and/or
buyer-seller arrangement
between
than
”
801(d)(2)(E), we
Rule
conclude
der
v.
(quoting United States
parties.’
Id.
harmless. Fed.R.Crim.P.
(6th
any error was
422,
Cir.
Humphrey, 287
52(a).
admission
aof
“The erroneous
2002),
grounds,
on other
United
overruled
(6th
Leachman,
co-conspirator
an unindicted
statement
309 F.3d
States v.
sufficient
Cir.2002)).
harmless error when
constitutes
Additionally, we have held that
a defendant’s
of other evidence demonstrates
large quantity
of a
the involvement
conspiracy.”
con-
active involvement
drugs
an inference
]
can “create!
conspiracy of
ponderance
was a
enough
that there
evi-
4. Roller admits
there was
a member.
pre-
which Roller was
court to find
dence for
478;
Rogers, 118 F.3d at
see also United mum
probative
reasonable
and its
force
Conrad,
v.
States
507 F.3d
minimum
prejudicial
reasonable
value.’”
Cir.2007)
Rogers
(applying
finding
test and
Jackson,
United States v.
*13
insufficient).
other evidence
White’s and
(6th Cir.2007) (quoting
United States
only
Stewart’s statements were
a small
Moore,
215,
Cir.1990),
v.
917 F.2d
part
testimony,
of Foutch’s
and other wit-
denied,
963,
1590,
cert.
499 U.S.
111 S.Ct.
Foutch, Murray,
nesses such as
and Amo-
(1991)). Applying
2. Holt’s Statements Holt’s provide background statements did objects to the introduction of on the conversation that resulted in recorded statements that Holt made to being Foutch hit with a hammer. Even Foutch. When Foutch tried to collect assuming erred, that the district court we money Roller, from Holt for Holt used conclude that the error is harmless be Foutch, profanity, threatened and hit language cause the not produce does as Foutch in the side of the head with a prejudice much as the hammer attack it hammer. The district court admitted self, which is unchallenged. nonhearsay these statements as introduced for objection context despite counsel’s Regarding B. Statements Use of Force6 unfairly prejudicial. statements were appeal, On argues that these state Young argues the district ments should have been admitted be government erred when it allowed the cause their unfair prejudicial effect out “present testimony that co-defendant Roll weighed probative their value.5 Fed. er obtained drug [sic] debts force or R.Evid. 403. of physical threat violence” without even “ limiting Young instruction.7 Br. at 23. ‘In reviewing the trial court’s Young asserts that the “evidence that decision an co- [Rule 403] for abuse of discre tion, defendant Roller used appellate extortion to obtain must view the in light drug evidence most minimally probative, [sic] favorable to debts is its if proponent, giving all, the evidence maxi- partic- to Defendant Young’s 5. appear argue Roller does not asserts that this severance improperly statements were argument determined to be unpreserved subject plain- is nonhearsay. Roller Br. at 34. Young preserved error review. if Even argument, prevail severance in order 6. Roller does not argument ap- Young raise this on 'compelling, specific, must “show peal. prejudice actual from [the] court's refusal to ” grant the motion to sever.' United States v. Driver, 7. In the last (6th Cir.2008) sentence of the section 535 F.3d issue, dealing argues brief with (quoting this Saadey, United States v. (6th Cir.2005)). that the district court should have severed the Young's brief men- argument specifically trials. makes no tion of severance high does not meet this severance, standard, relating focusing instead ground inap- and reversal on this prejudicial quality of the admitted propriate. evidence. testimony na detailed from individuals No evidence conspiracy. ipation dealing drugs Defendant to connect who had been involved presented way many years. to his codefendant’s any Id. collecting Therefore, debts.” Young’s argument actions in reject we introduction argues of statements that admission prejudicial viola- testimony unfairly reversible error. debt collection constituted tion of Rule 403. Jury Response to C. District Court’s above, review “[i]n As discussed Question Regarding Conspiracy Du- decision for 403]
ing [Rule trial *14 ration8 discretion, appellate the an abuse most light in the the evidence must view deliberations, jury the sent out During giving evi proponent, to its favorable the court: “On following question for probative reasonable its maximum dence necessary conspiracy to count one is it for prejudi reasonable and minimum force [fjind guilty?” run from 1992-2006 to J.A. (in Jackson, 473 668 F.3d at cial value.” Communication). objec- (Jury Over 335 omitted). Young marks quotation ternal counsel, the Roller’s and tions con incorrectly that no evidence asserts gave following answer: district court attempts to collect him to Roller’s nected One, on guilty “To a Count find defendant that Roller Foutch testified debts. conspiracy that there was a you must find when Roller asked Young present were to or 1992 and lasted began ‘in about’ money drug from debtors her to collect However, a May to find ‘in or about’ 2006. her to take the title Young and that told you are not guilty on Count One defendant get if Foutch was unable Holt’s car a required to find that a defendant was theo money government’s Holt. The from begin- from the conspiracy of the member part that Roller and ry was ning conspiracy.” at 336 of the J.A. Al drug conspiracy. in an extensive ners Communication). (Judge relating debt though the information largely based on Foutch’s was collection sentence argues Roller second Roller, the evi overall conversations unfairly prejudi- judge’s answer was of the suggest in the case does not dence reemphasized portion it a cial because from the debt-collect Young was distanced not jurors had jury charge that the conspiracy. Addition of the ing segment suggest does not asked about. Roller testimony regarding debt collec ally, the Instead, misstated the law. the answer probative value insofar tion had only jury asked Roller asserts willing Young were that Roller and showed conspiracy and that of the span about purchasers. drug to extend credit of a statement the court’s inclusion a require finding not conviction did assuming that Even a had been member each individual admitting Young in testi as to court erred beginning from the conspiracy collection, we con mony debt Accordingly, argues, responsive. Roller this error was harmless. clude that of the non-responsive portion this any face extortion did not “suggested to would have court’s answer involving violence. charges any charges or re- charge of the jury part evidence of con ample There was other sentence flected second includ Young, spiracy between Roller important what was marijua- response regarding stripping ing testimony ap- peal. argument on does not raise 1050 jury Acquitted
and that the
D.
Regard-
should focus
that.”
Use of
Conduct
ing Drug
Br.
Sentencing
at 36.
Amount
“
were indicted for
‘The
district court’s actions
conspiracy to
or
manufacture 1000 more
responding
questions
jury
from
are
marijuana plants
”
and to distribute
or
1000
reviewed for abuse of discretion.’ United
kilograms
more
of a
containing
substance
Khalil,
(6th
358,
v.
States
marijuana.
trial,
jury
At
found Roller
Cir.2002) (quoting United States v. Au
Young guilty
conspiracy,
but deter-
(6th
Cir.1992)).
gust, 984 F.2d
mined that the
did not involve
“ ‘high
There
standard
reversal
1000 or more
plants or
grounds
conviction on
improper
Instead,
kilograms
marijuana.
more
(quoting
instructions.’” Id.
United States
convicted Roller and
aof
v. Sheffey,
Cir.
conspiracy involving at least 100 but less
1995),
denied,
1065, 116
cert.
516 U.S.
S.Ct.
than 1000
plants
least
(1996)).
749,
Given reject specifically must Roller’s attributed majority, we banc intercepted Young’s arguments acquitted pounds conduct from truck and 530 their sentences. pounds used to enhance as an estimate what cannot be However, Murray still must review we sold over course of findings to evaluate whether These years.11 court’s decision attribute 2848 proven by pre a acquitted quantity Young. If the pounds of “A district court’s determina had not ponderance. prepon- district court found to to com quantity drugs intercepted tion of the used that the derance truckload finding Young, sentence is to Roller and Roller and pute defendant’s connected clearly upheld unless only fact that should be could have been sentenced finding jury district court’s finding erroneous. The accordance with the by a supported preponderance must be involved least 100 but less Hoskins, kilograms States v. marijuana. the evidence.” United than 1000 Be- Cir.1999) (citation quantities by cause the other found omitted). drug quantity The inclusion court were either admitted by a proven preponder that has not been quanti- fell within See, e.g., clear error. verdict, ance constitutes range ty authorized Gibbs, (analyzing at 440-45 analysis our on the district focuses findings district court’s underlying detail that there determination was sufficient evi- drug quantity). determination connecting dence to the *16 intercepted marijuana. truckload of court sentencing, At the district extremely it is an close Although ques- question drug the specifically addressed tion, we conclude that it not clear was 2744 quantity. The district court found for the district court that error to conclude to Roller: eleven pounds10 attributable shown, government prepon- the had to a freezer, fif that found in his pounds was derance, Foutch, intercepted truckload of pounds he sold teen that to marijuana was attributable to Roller and that quantity as an estimated pounds Mexico, Young. court its find- to The district based trip on one would be recovered marijuana on the fact the pounds ings that in the that and the 2318 was found Young, Young’s to that respect property,12 truck. With sent Roller intercepted reviewing sentencing kilograms equivalent to when the district thousand is One pounds. determination. "the 11. The district court also mentioned that property the appeal, 12.On Roller asserts that certainly testimony put the of Mr. Goff would question Young Bal- was owned alone. pounds," quantity well in of 2200 but excess testimony Young that stated that samo’s any specific court did not make district property supports owned Roller's involved, quantity findings nor However, sentencing at his hear- assertion. quantity explain did alone it whether this object ing, Roller failed to to the district kilogram would rise the 1000 threshold property "belonged court’s statement that only conjunction it do with the if would so Roller, to, and, course, partly Mr. Mr. (Sent’g intercepted at 1620 truckload. J.A. (Sent’g Young, at at well.” J.A. Tr. as 67). lack Tr. Given this of information 15). Additionally, given the fact that the other specificity of the district court’s being cocon- convicted Roller and quantity-related findings, that we conclude spirators conspiracy to mari- in a distribute specific court did include district property ownership is juana, the exact of the testimony. There- amount based on Goff's fore, drugs quantity not critical. we do not consider this and Young government proved preponder- Roller obtained from the to a Mexico, that was a resembling there truck ance that the truckload was attributable to day one, Young’s the area of the close we con- delivery, and that Roller and clearly clude court that district did not changed frequently cars because err when concluded that the that going afraid “the Mexicans were had so.13 reviewing done Were we after them.” J.A. at (Sent’g come 1568-69 ourselves, under a preponderance evidence 15-16). however, is, Tr. at There conflict- standard, might the evidence we reach a ing evidence the district court did not result, different we but cannot conclude First, mention. there was evidence that findings the district court’s constitut- one of the individuals who was arrested at ed clear error. delivery,
the scene of the Jaime Valdivia- Leadership-Role E. Enhancement Perez, occupying property Second, testimony time. there was sentencing, At district court found owner the truckload of played each lead apologized Young drawing law in a ership role involved Young’s property. Finally, enforcement to participants. five or more The district little, any, if there was other evidence that court applied therefore a four-level en and Young dealt in quantities of hancement to Roller’s and base- marijuana as large that found in the pursuant offense levels to United States intercepted truck. 3131.1(a). § Sentencing Guidelines There is confusion within this circuit concerning This circuit held that has ap standard review that should be court cannot that any drugs assume in a plied to a district court’s decision to im given belong area to defendants who are pose a leadership under enhancement Hoskins, major drug dealers that area. Walls, § 3B1.1. See United States v. (“The 173 F.3d at reasoning 356-57 (6th Cir.2008). re “When implies [the because de- 3B1.1(a) viewing impositions § past, top area, fendants] were two dealers in the *17 ‘we reviewed the district factual any marijuana court’s grown and in sold the area findings for clear legal error and its con each attributable to of them. We novo.’” Id. (quoting United clusions de sentencing guidelines believe the require a McDaniel, States v. 540, more 398 F.3d 551 n. 10 particularized finding.”). In this (6th Cir.2005)). however, “However, 2001, case, ‘the par- the district court made Supreme v. United ticularized Court findings related to ruled evidence Buford States presented 59, 1276, at rely trial and did U.S. 121 [532 not on an S.Ct. 149 (2001)] assumption that, that because Roller and L.Ed.2d 197 light of the large-scale drug area, decision, were legal dealers in the fact-bound nature of the an marijuana appellate truckload of must have been court deferentially, should review Although question novo, theirs. of whether rather than de ap- district court’s intercepted 13. We note that if the even truck- court decide the that been amounts had sold marijuana load of is eliminated from bought consid- every to or from individual who testi- eration, during sentencing the district court fied. Because the court district did not find exhaustively quanti- did not consider all any quantities preponderance, of these to marijuana presented ties of which been at we quantities, do not consider whether these example, trial. For the district court did not apart marijuana, from truckload of could determine amount of that was justify sentencing the district determi- court’s Roller, stripped grown by Young, and the nation. individuals hired. did the Nor district
1053
”
(quot
have
I think
people,
you
§ 4B1.2.’
Id.
don’t
five
which
of U.S.S.G.
plication
10).
McDaniel,
do, ...
at 551 n.
could still be otherwise exten-
398 F.3d
ing
for the
levels.”
at
suggest,
in this circuit
without
sive
four
J.A.
1624-25
cases
Some
“
71-72).
Tr.
(Sent’g
at
Buford,
‘[a]
that
discussing
regarding a defen
determination
court’s
“Regardless
parameters
of the exact
only
in the offense is reversible
dant’s role
3B1.1(a)
light
Buford,
review
it is
”
clearly
v.
if
erroneous.’ United States
findings
clear
factual
made
(6th Cir.2008)
Jeross,
562, 579
521 F.3d
court are
for clear
reviewed
error.”
Gates,
States v.
(quoting United
Walls,
41). respect Young, to the district With of F. Unreasonableness Sentences in many people court noted appeal, Roller stripping On volved The sentences are unreasona argue from Mexico. their transporting for you if We review sentences reason- also stated that “even ble.14 district court brief, imposed appellate does not bar Roller’s In in its the sentence was a footnote argues See United States v. Von- because Roller and or claims. (en ner, (6th Cir.2008) “unreasonableness be- 385-86 failed raise banc). court,” claims does not bar Roller’s we should review This rule fore the district after sentencing plain procedural Gov't unreasonableness because their claims for error. sentence, However, imposed its the rule that the district court Br. 52 n.5. this circuit's any he to ask Roller if plain-error applies when we evaluate district court failed review objections. government admits that the the of a defendant who failed sentence inquiry, not this but object sentencing procedure the district court did make the after deviation, Supreme under the ableness the standard the consider extent the but States, in Gall Court described v. United give must due deference to the district — -, 586, 597, 128 S.Ct. 3553(a) U.S. § court’s decision that the fac- (2007): L.Ed.2d tors, whole, justify the extent of the Regardless of whether the sentence appellate variance. The fact that imposed is inside outside Guide- might reasonably court have concluded range, appellate court lines must appropri- that a different sentence was review sentence under an abuse-of- justify ate is insufficient to reversal of discretion standard. It must first en- the district court. sure district court committed no standard, Under this reasonableness re- error, significant procedural such as fail- two components: procedural view has (or ing to improperly calculate calculat- substantive.
ing) the
range, treating
Guidelines
1. Review for Procedural Reason-
mandatory, failing
Guidelines as
to con-
ableness
3553(a) factors,
§
selecting
sider the
on clearly
sentence based
erroneous
procedural
Review for
reason
facts, or failing
adequately explain
three-step
is a
inquiry.
ap
ableness
An
including
explana-
chosen
an
sentence—
pellate
must
court
determine whether the
any
for
tion
deviation from the Guide-
“(1)
properly
court:
calculated the
range. Assuming
lines
that the district
(2)
applicable advisory
range;
Guidelines
sentencing
procedur-
decision is
3553(a)
§
considered
other
factors as
sound,
ally
appellate
court should
parties’ arguments
well as the
for a sen
then consider the substantive reason-
tence outside
range;
the Guidelines
ableness of
imposed
the sentence
under
(3) adequately
reasoning
articulated its
an abuse-of-discretion standard. When imposing
particular
chosen,
sentence
review,
conducting
will,
the court
any rejection
including
of the parties’ ar
course, take
totality
into account the
guments for an outside-Guidelines sen
circumstances, including
the extent
any
tence and
decision to deviate from the
any
variance from the Guidelines
advisory
range.”
Guidelines
United
If
range.
within
sentence is
Bolds,
States v.
range,
Guidelines
the appellate court
Cir.2007).
to,
may,
required
but
apply
is not
argues
pro-
that his sentence was
presumption of
But
reasonableness.
if
cedurally unreasonable and that
the sentence is outside
dis-
the Guidelines
range,
may
the court
trict
court
apply
pre-
improperly
calculated the
sumption
It may
range
unreasonableness.
Guidelines
because the
asserts
"greater
his counsel
left the
tence was unreasonable because it is
courtroom before the district court had a
necessary
comply
pur-
than that
with the
argument
chance to
ask. This
belied
3553(a)(2).”
poses
§
U.S.C.
Br.
transcript which shows that Roller’s counsel
at 36. We have
litigant
held that "[a]
has no
spoke
sentencing
and the district court
about
*19
object
duty to
to the ‘reasonableness’ of the
details before
left
Roller
and that
district
(or
length
presumption
sentence
to the
gave
permission
court
Roller
to leave. Be-
reasonableness) during
sentencing
hearing.”
objected
cause he was not
if he
asked
to his
Vonner,
Accordingly,
based con imposing sidered letters before Roll MERRITT, Judge, concurring Circuit in Young’s er’s and sentences. The part part. and in dissenting court also specific enumerated the evi The two grew first offenders here 3553(a) § dence and the factors led it marijuana distributed off and over sev- imposed to believe that the sentences it years eral years and were sentenced appropriate. Given deferential years and 19 respectively. In view review, my standard we decline to reverse long sentence is too serves no rational Roller’s sentences. penal purpose. greater It much than argument As to Roller’s that his necessary adequately deter sentence was disproportionate com when growing and I distribution. would reverse pared with Young’s, we note that Roller and remand for a further explanation of were sentenced within the why such a long justified, sentence is espe- same Guidelines range because the district cially light great disparity court determined Young’s prior con sentencing relatively for such minor mari- did not victions increase his criminal histo juana crimes between the state and federal ry level for purposes.16 Guidelines The and among courts federal judges them- specifically district court stated that be selves. These defendants will be over 70 convictions, cause of these Young merited years old get jail, when out if they higher sentence within that Guidelines live that long. The cost of their incarcera- range, and the district court sentenced tion, care, including health will be enor- years to two additional of incarcera mous. The sentences seem irrational tion and years super four additional me—too irrational for me to defer.1 vised release. explanation Given this the fact the district court did not in my For reasons stated dissenting White, ignore prior difference criminal con- opinion United States v. 16. Roller also asserts is un sentence suffice to show commit- compared reasonable when defen other plain imposing ted error in Roller's sentence. type dants convicted of the same of offense. However, admits, Br. at as Roller just-released 1. The "Overview” U.S. ap he raises this issue for first time on Sentencing Commission for 2007 shows that peal, and we review therefore his claim for average punishment drug "the for crimes Id.; Blackie, plain error. United States v. ranged high from a of ... 40 months for (6th Cir.2008) ("Because [the (with offenders median of 24 object defendant] did not to his sentence months).” great disparity for mari- potential on a disparity, based ... we now juana offenders in this case and in normal error.”). plain review [that] claim[] Roll unexplained case remains in the record. argument er's brief mention of this does not *21 (en banc)), agree I do not Cir.2008 reasonings of Sec- holdings with majority opinion and II.E of the II.D
tions conduct and acquitted the use
upholding facts re- offense-conduct judge-found, leadership enhancement.
garding un- sentencing enhancements are
These I my Although con- view.
constitutional majority we must defer to
cur that White, it is not States v. United
opinion be likely and is purposes
final for all Supreme These by Court.
reversed are the basis for
two enhancements are inconsistent
long sentences by jury of trial under the Sixth right in White.
Amendment, I explained keep for the defendants should
Counsel until find out what open we
the cases to the White case in the Supreme
happens
Court. America,
UNITED STATES
Plaintiff-Appellee,
v. MILLBROOK,
Kim Lee Defendant-
Appellant.
No. 07-2931. Appeals, States Court of
United
Seventh Circuit.
Argued May 2008.
Decided Jan.