United States v. Cloud ( 2006 )

RECOMMENDED FOR FULL-TEXT PUBLICATION
Pursuant to Sixth Circuit Rule 206
File Name: 06a0452p.06
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
_________________
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Plaintiff-Appellee, -
UNITED STATES OF AMERICA,
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Nos. 05-3295/3297/3344
v.
,
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CALVIN CAVER (05-3295); TAMIR ABDULLAH -
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Defendants-Appellants. -
(05-3297); FRED CLOUD (05-3344),
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Appeal from the United States District Court
for the Northern District of Ohio at Cleveland.
No. 03-00486—Peter C. Economus, District Judge.
Argued: September 19, 2006
Decided and Filed: December 4, 2006
Before: CLAY and GILMAN, Circuit Judges; OBERDORFER, District Judge.*
_________________
COUNSEL
ARGUED: Kevin M. Schad, SCHAD & SCHAD, Lebanon, Ohio, F. Clinton Broden, BRODEN
& MICKELSON, Dallas, Texas, Ryan D. Walters, SQUIRE, SANDERS & DEMPSEY, Cincinnati,
Ohio, for Appellants. Edward F. Feran, ASSISTANT UNITED STATES ATTORNEY, Cleveland,
Ohio, for Appellee. ON BRIEF: Kevin M. Schad, SCHAD & SCHAD, Lebanon, Ohio, F. Clinton
Broden, BRODEN & MICKELSON, Dallas, Texas, Pierre H. Bergeron, SQUIRE, SANDERS &
DEMPSEY, Cincinnati, Ohio, for Appellants. Bruce A. Khula, ASSISTANT UNITED STATES
ATTORNEY, Cleveland, Ohio, for Appellee.
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OPINION
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CLAY, Circuit Judge. “Operation Snow Removal,” an investigation into drug crimes in the
city of Cleveland, Ohio, led to the indictment of 15 alleged conspirators on December 17, 2003.
Many of the alleged conspirators pleaded guilty; Defendants Caver, Abdullah, and Cloud
(collectively “Defendants”) did not. They proceeded to trial, and were found guilty of conspiracy
*
The Honorable Louis F. Oberdorfer, United States District Judge for the District of Columbia, sitting by
designation.
1
Nos. 05-3295/3297/3344 United States v. Caver, et al. Page 2
to possess crack cocaine and possession of crack cocaine with the intent to distribute.1 On
September 27, 2004, Defendants Caver and Abdullah were sentenced to life without release;
Defendant Cloud was sentenced to 30 years imprisonment. Defendants filed a timely notice of
appeal.
On appeal, Defendants, either collectively or individually, argue that their convictions should
be overturned because (1) the evidence was insufficient to support a conspiracy; (2) there was a
prejudicial variance between the indictment and the proof at trial; (3) the district court improperly
denied Defendant Caver’s motion for a severance; (4) the district court made erroneous evidentiary
rulings; (5) the district court improperly refused to grant a mistrial in response to improper outbursts
by government witnesses; (6) the district court gave erroneous jury instructions; (7) Defendants’
sentences are unconstitutional or unreasonable under Booker;2 and (8) Defendant Cloud was denied
effective assistance of counsel. For the reasons stated below, we AFFIRM Defendants’ convictions
and sentences.
I.
BACKGROUND
This case involves drug and drug-related offenses that occurred in the city of Cleveland,
Ohio, in the area of West 80th Street, West 83rd Street, and Detroit Avenue, during the years 2002
and 2003. In 2002, the Cleveland Police Department conducted an investigation known as
“Operation Snow Removal” and found that this area of Cleveland had the highest crime rate in the
police district. The Cleveland Police Department and the United States Drug Enforcement Agency
cooperatively developed a plan targeting the main suspects involved in the drug trade in this area.
On March 18, 2003, a Cleveland Police Department detective, Schroeder, while conducting
surveillance, observed a black Dodge Intrepid circling the block. He followed this car to a gas
station, where he observed a man on a bicycle ride up to the passenger side window of the car and
reach into the vehicle. The Intrepid drove off, and Schroeder followed it. It parked on a nearby
street, and a minute later, a Ford Probe pulled up. The driver of the Probe got out of his car and got
into the back seat of the Intrepid. Shortly thereafter, the driver of the Probe exited the Intrepid,
returned to the Probe, and drove away. Schroeder stopped the Probe, and radioed for another officer
to stop the Intrepid. Officer Bunjnak, acting on Schroeder’s instruction, stopped the Intrepid, and
observed Defendant Caver holding a bag of crack cocaine in his lap. Bunjnak arrested Defendant
Caver, searched him, and found two pagers, lottery tickets, plastic baggies, and $242 of cash. He
also found two cell phones on the passenger side of the Intrepid. The crack cocaine recovered from
Defendant Caver weighed 12.04 grams.
On April 2, 2003, officers involved in Operation Snow Removal arrested Rahsaan Felix, a
named but unindicted coconspirator in this case. Felix led police officers to Michael Morris, a drug
dealer who supplied many other drug dealers in the target area. Morris agreed to cooperate with
1
Specifically, all Defendants were found guilty of one count of conspiracy to possess with intent to distribute
more than 50 grams of crack cocaine, in violation of 21 U.S.C. §§ 841(a)(1) and (b)(1)(A). Defendant Caver additionally
was found guilty of one count of possession with the intent to distribute 12.04 grams of crack cocaine in violation of
21 U.S.C. §§ 841(a)(1) and (b)(1)(B), and one count of possession with the intent to distribute 2.92 grams of crack
cocaine under 21 U.S.C. §§ 841(a)(1) and (b)(1)(C). Defendant Abdullah was additionally found guilty of one count
of possession with the intent to distribute 20.8 grams of crack cocaine under 21 U.S.C. §§ 841(a)(1) and (b)(1)(B) and
aiding and abetting under 18 U.S.C. § 2.
2
United States v. Booker, 543 U.S. 220, 261 (2005).
Nos. 05-3295/3297/3344 United States v. Caver, et al. Page 3
police, and on May 13, 2003,3 the police planned to have Morris purchase drugs from Defendant
Cloud and Arroyal Hall, another coconspirator. Morris was to purchase an ounce of crack cocaine
from Hall and Defendant Cloud for $1,700. Morris met Hall and Defendant Abdullah (not
Defendant Cloud, as originally planned) and the three of them drove to an apartment on Detroit
Avenue, where the drugs were held. While parking the car, Hall recognized the undercover police
car that was following Morris, and refused to go through with the transaction. Morris dropped Hall
off at home. Defendant Abdullah, however, agreed to go through with the transaction. Morris paid
only a portion of the money, $800, and received 20.8 grams of crack cocaine. Morris then dropped
Defendant Abdullah off at Hall’s home, and turned the crack cocaine over to police officers.
On June 17, 2003, police officers set up a controlled drug purchase of $50 worth of crack
cocaine from Defendant Caver, using a reliable confidential informant. The informant told police
that Defendant Caver would be arriving in a white car. When the white car arrived, Defendant
Caver was driving, and the police arrested him. They recovered a bag of crack cocaine weighing
2.92 grams, $205, a cell phone, and a business card with the telephone number of the recovered cell
phone listed on it.
On October 3, 2003, police were watching for drug activity from an apartment “perch.”
They observed a van drive onto the street, and a number of males who had been loitering on the
street ran to the passenger side of the van. Suspecting a drug deal, the police stopped the van. The
driver, who was Defendant Cloud, fled the van, but was apprehended. The front seat passenger was
Defendant Abdullah. Police arrested Defendant Cloud and another passenger, and searched the van.
The search did not reveal any drugs, but the police did recover photographs which depicted
Defendant Cloud, Defendant Abdullah, and other suspects in various poses with money and cars.
In one of the pictures, Defendant Cloud had a gun in his waistband.
On December 17, 2003, Defendants were indicted, along with 12 other coconspirators, for
conspiracy to possess with the intent to distribute more than 50 grams of a mixture or substance
containing a detectable amount of cocaine base, over a period beginning in 2002 and continuing
throughout 2003, in violation of 21 U.S.C. §§ 841(a)(1) and (b)(1)(A) and § 846. Additionally,
Defendant Caver was indicted for possession with the intent to distribute12.04 grams of crack
cocaine stemming from his arrest on March 18, 2003. Defendant Caver was also indicted in a
separate count for possession with the intent to distribute crack cocaine in the amount of 2.93 grams
stemming from his arrest on June 17, 2003. Defendant Abdullah was indicted for possession with4
the intent to distribute 20.8 grams of crack cocaine stemming from the May 13, 2003 sale to Morris.
Only Defendants went to trial. Trial began on September 14, 2004. The prosecution’s case
included the testimony of police officers who recounted the events previously described, and the
testimony of fifteen alleged coconspirators. The testimony elicited by the alleged coconspirators
placed Defendants and the other alleged coconspirators within an intricate economic web of crack
cocaine transactions. Because this testimony is necessary to the determination of the legal issues
in this case, we briefly summarize the coconspirators’ testimony at trial:
3
The events described here began at approximately 11:00 in the evening on May 13, 2003 and continued into
May 14, 2003.
4
A superceding indictment was filed on July 20, 2004. The superceding indictment charged only Defendants,
but listed the defendants from the original indictment and several additional persons as named but unindicted
coconspirators. Additionally, the superceding indictment included specifications for obstruction of justice, criminal
history, and drug quantities of over 1.5 kilograms with respect to all Defendants, and a career offender status
specification with respect to Defendants Abdullah and Cloud.
Nos. 05-3295/3297/3344 United States v. Caver, et al. Page 4
A. Michael Morris. Morris testified that he sold one-eighth of a kilogram of crack cocaine
to Defendant Cloud “every day.” J.A. at 965. Morris also stated that he sold one-ounce quantities
of crack cocaine to Defendant Abdullah “once or twice,” but that Morris was not Defendant
Abdullah’s regular supplier. J.A. at 948. Morris also testified that he did not sell Defendant Caver
any drugs in 2002 or 2003. Additionally, Morris testified that he sold crack cocaine to Arroyal Hall,
Yohnell Walker, Rondell Wylie, and Demetrius Bell over the relevant time frame.
B. Arroyal Hall. Hall testified that he sold large amounts of crack cocaine, ounces or
portions of an ounce, to Defendant Abdullah “every day, or every other day.” J.A. at 1084. He
testified that he was also friends with Defendant Abdullah. Hall testified that Defendant Cloud was
his best friend, that he and Defendant Cloud sold drugs together in 2002 and 2003, and that they
would pool their money together to purchase crack cocaine from Morris. According to Hall, the two
would use each other’s suppliers to purchase crack cocaine, and he and Defendant Cloud would
purchase a quarter or an eighth of a kilogram “every day almost.” J.A. at 1125. Hall also testified
that he sold drugs to Defendant Caver in one-ounce quantities numerous times during 2002 and
2003.
Additionally, Hall testified that during the time of the alleged conspiracy, Hall sold crack
cocaine to Yohnell Walker, Derek Stokes, Rondell Wylie, Demetrius Bell, David Anderson, Ralph
Jones, Allen Wilson, Jermaine Jones, and Randall Ramsey. Hall testified that he purchased crack
cocaine from Michael Morris.
C. Andre Collier. Collier testified that he was a street level dealer. Collier testified that,
over the relevant period, he purchased crack cocaine from Defendant Cloud “just a few times” in
quarter-ounce, eighth-ounce, or one-ounce quantities. J.A. at 1202. He also testified that he had
purchased crack cocaine from Defendant Caver one or two times. Additionally, Collier testified that
he purchased crack cocaine from Yohnell Walker and Rondell Wylie.
D. Hasan Howard. Howard testified only with respect to Defendant Abdullah. He testified
that, on three occasions during the relevant period, he had sold Defendant Abdullah $600 worth of
crack cocaine.
E. Rahassan Felix. Felix testified that, on two or three occasions during the period of the
indictment, he had purchased crack cocaine from Defendant Abdullah in a total amount of
approximately 1.5 to 2 ounces. Felix testified that he sold crack cocaine to Defendant Cloud two
or three times over the relevant time period. Felix also testified that he had purchased an ounce of
crack cocaine from Defendant Caver on only one occasion. Additionally, Felix testified that he
purchased crack cocaine from Demetrius Bell and Michael Morris, and that he sold crack cocaine
to Allen Wilson and Jermaine Jones.
F. David Anderson. Anderson testified that he was a street level crack dealer. He testified
that, during the relevant period, Defendant Cloud had sold him crack cocaine several times in eighth-
ounce quantities and $200 amounts. He testified that Defendant Abdullah had sold him crack
cocaine several times, also in eighth-ounce quantities and $200 amounts. Additionally, Anderson
testified that he bought crack cocaine from Derek Stokes and Rondell Wylie.
G. Derek Stokes. Stokes testified that, over the relevant period, he purchased crack cocaine
from Defendant Abdullah once a week, in eighth-ounce quantities. Additionally, Stokes testified
that he purchased crack cocaine from Randall Ramsey, Andre Collier, Yohnell Walker, and Rondell
Wylie.
H. Allen Wilson. Wilson testified that, over the relevant period, he purchased crack cocaine
from Defendant Cloud two or three times, in $100 amounts. He testified that he purchased crack
cocaine from Defendant Abdullah once or twice, in $50 or $100 amounts. Wilson also testified that
Nos. 05-3295/3297/3344 United States v. Caver, et al. Page 5
he purchased crack cocaine from Defendant Caver between five and ten times, in $100 amounts.
Additionally, Wilson testified that he bought crack cocaine from Rahssan Felix, Stephon Davis,
Rondell Wylie, and Arroyal Hall.
I. Rondell Wylie. Wylie testified that, over the relevant period, he purchased crack cocaine
from Defendant Caver a couple of times in quarter-ounce quantities, and that he sold crack cocaine
to Defendant Caver a couple of times, in quarter- or half-ounce quantities. He additionally testified
that he bought crack cocaine from Yohnell Walker, Arroyal Hall, Michael Morris, Andre Collier,
and Demetrius Bell, and that he sold crack to Demetrius Bell, Andre Collier, Yohnell Walker, and
David Anderson.
J. Latoya Taylor. Taylor testified that she purchased three grams of crack cocaine from
Defendant Cloud once during the period of the indictment.
K. Stephon Davis. Davis testified that in 2002 to 2003 he purchased crack cocaine in the
quantity of one ounce from Defendant Cloud. He additionally testified that he sold crack cocaine
over the relevant period to Latoya Taylor, Jermaine Jones, Yohnell Walker, David Anderson, and
Ralph Jones.
L. Ralph Jones. Ralph Jones testified that over the relevant time period he purchased crack
cocaine from Defendant Cloud more than ten times, with a maximum quantity of one ounce. He
testified that he purchased crack cocaine from Defendant Abdullah five or six times, in eighth-ounce
quantities. Ralph Jones also testified that he purchased crack cocaine from Defendant Caver over
twenty times, in quarter- or half-ounce quantities. He testified that Defendant Caver offered Ralph
Jones employment as a “jump boy,” which is a person who holds the drugs and runs away if the
police show up, and that on a few occasions Ralph Jones acted as a “jump boy” for Defendant Caver.
Defendant Caver paid him $300 to $400 dollars for this service. Ralph Jones also testified that he
and Defendant Caver took photographs of the neighborhood, in order to formulate a method of
avoiding the police. Ralph Jones additionally testified that over the relevant period he purchased
crack cocaine from Arroyal Hall, Michael Morris, Stephon Davis, Yohnell Walker, Derek Stokes,
Rondell Wylie, Demetrius Bell, Andre Collier, Allen Wilson, and Randall Ramsey. Ralph Jones
testified that he sold crack cocaine over the relevant period to Yohnell Walker, Derek Stokes,
Rondell Wylie, David Anderson, Demetrius Bell, Andre Collier, Jermaine Jones, and Randall
Ramsey.
M. Jermaine Jones. Jermaine Jones testified that, over the relevant period, he purchased
crack cocaine from Defendant Cloud, in $200 and $400 amounts, two to three times per week.
Jermaine Jones also testified that he purchase crack cocaine from Defendant Caver about ten to
fifteen times, in quarter- and half-ounce amounts.
N. Yohnell Walker. Walker testified that, over the relevant period, he purchased crack
cocaine from Defendant Cloud in quarter- and one-ounce quantities four to five times. Walker
testified that he purchased crack cocaine from Defendant Abdullah in eighth- and quarter-ounce
quantities a few times. Walker also testified that he purchased crack cocaine from Defendant Caver
in half- and one-ounce quantities, with an approximate total quantity purchased of a quarter
kilogram. He testified that he sold crack cocaine to Defendant Caver in quantities of a half-ounce,
2.25 ounces, and an eighth of a kilogram. Additionally, Walker testified that he purchased crack
cocaine from Hasan Howard, Arroyal Hall, Michael Morris, Stephon Davis, Demetrius Bell, Andre
Collier, and Rondell Wylie.
O. Patricia McCristall. McCristall testified that she purchased $100 amounts and quarter-
ounce quantities of crack cocaine from Defendant Caver a half dozen times over the relevant period.
Nos. 05-3295/3297/3344 United States v. Caver, et al. Page 6
In addition to this extensive testimony concerning drug transactions with alleged
coconspirators, the prosecution also presented letters that Defendants Cloud and Caver had written
to other coconspirators. Some of these letters urged the coconspirators to sign affidavits (that were
included in the letter) stating that they had never sold drugs to Defendants Cloud or Caver.
Defendant Cloud’s letters were often hostile in tone, and in some instances included thinly-veiled
death threats. Defendant Caver’s letters were neither hostile nor threatening.
On September 21, 2004, the case was submitted to a jury. The jury returned a verdict of
guilty on September 22, 2004, against all Defendants as to all counts. On March 4, 2005, the district
court sentenced Defendants Caver and Abdullah to life5 in prison without release, and sentenced
Defendant Cloud to a term of thirty years imprisonment. Defendants filed timely notices of appeal.
II.
DISCUSSION
A. SUFFICIENCY OF THE EVIDENCE
Defendants first argue, with respect to each of them, that the evidence presented at trial was
insufficient to support a conviction for conspiracy to possess with the intent to distribute crack
cocaine. “When reviewing for the sufficiency of evidence in support of a jury verdict, this Court
views the evidence in the light most favorable to the prosecution and gives the prosecution the
benefit of all reasonable inferences from the testimony.” United States v. Abboud, 438 F.3d 554,
589 (6th Cir.), cert denied, 127 S. Ct. 446 (2006). The question the court must ask is whether “any
rational trier of fact could have found the essential elements of the crime beyond a reasonable
doubt.” United States v. Evans, 883 F.2d 496, 501 (6th Cir. 1989) (quoting Jackson v. Virginia, 443
U.S. 307, 319 (1979)).
The elements of conspiracy are “‘(1) [a]n object to be accomplished. (2) A plan or scheme
embodying the means to accomplish that object. (3) An agreement or understanding between two
or more of the defendants whereby they become definitely committed to cooperate for the
accomplishment of the object by the means embodied in the agreement, or by any effectual means.’”
United States v. Gibbs, 182 F.3d 408, 420 (6th Cir. 1999) (quoting United States v. Bostic, 480 F.2d
965, 968 (6th Cir. 1973)). In the specific context of § 846, “the government must prove, beyond a
reasonable doubt, ‘(1) an agreement to violate drug laws, (2) knowledge and intent to join the
conspiracy, and (3) participation in the conspiracy.’” Id. at 420 (quoting United States v. Welch, 97
F.3d 142, 148 (6th Cir. 1996)).
An agreement to violate the drug laws need not be express or formal. “A tacit or mutual
understanding among the parties is sufficient.” United States v. Forrest, 17 F.3d 916, 918 (6th Cir.
1994). But the evidence must nevertheless demonstrate that the defendant had knowledge of the
conspiracy’s object and consciously committed himself to the furtherance of that object. United
States v. Hodges, 935 F.2d 766, 772 (6th Cir. 1991). However, once the existence a conspiracy is
5
Defendant Caver was sentenced to life in prison without release for conspiracy to possess with intent to
distribute crack cocaine in violation of 21 U.S.C. §§ 841(b)(1)(A) & 846. Defendant Caver was also sentenced to ten
years imprisonment for each of his two convictions for possession with intent to distribute crack cocaine under 21 U.S.C.
§§ 841(a)(1) and (b)(1)(B) and 841(a)(1) and (b)(1)(C), with the sentences to run concurrently. The district court also
sentenced Defendant Abdullah to life without release on his conviction for conspiracy to possess with the intent to
distribute crack cocaine under 21 U.S.C. §§ 841(b)(1)(A) & 846, and ten years imprisonment for possession with intent
to distribute cocaine base and aiding and abetting under 21 U.S.C. §§ 841(a)(1) and (b)(1)(B) and 18 U.S.C. § 2. The
district court sentenced Defendant Cloud to a term of 30 years imprisonment on his conviction for conspiracy to possess
with the intent to distribute crack cocaine under 21 U.S.C. §§ 841(b)(1)(A) & 846.
Nos. 05-3295/3297/3344 United States v. Caver, et al. Page 7
shown, the evidence linking an individual defendant to that conspiracy need only be slight. United
States v. Henley, 360 F.3d 509, 514 (6th Cir. 2004).
Like many legitimate industries, the distribution of drugs from suppliers, through middlemen,
to the end consumer often assumes a vertical pattern of distribution, where each successive
distributor sells a lower volume to any particular customer. Where drugs are concerned, this can
form a “chain” conspiracy where an agreement to supply drugs to a given area can be inferred from
the interdependence of the enterprise. See id. (“‘One can assume that the participants understand
that they are participating in a joint enterprise because success is dependent on the success of those
from whom they buy and to whom they sell.’” (quoting United States v. Spearman, 186 F.3d 743,
746 (6th Cir. 1999))). That said, the agreement to enter into a transaction, which must by definition
exist between a willing buyer and a willing seller, is not equivalent to the agreement needed to
support a conviction for conspiracy. Gibbs, 182 F.3d at 421. Instead, a conviction must be based
on evidence from which a rational trier of fact could find that the defendant had knowledge of the
conspiracy itself, and purposefully joined the conspiracy. See United States v. Grunsfeld, 558 F.2d
1231, 1235 (6th Cir. 1977). This can be inferred through circumstantial evidence, Henley, 360 F.3d
at 513, including evidence of repeated purchases, or evidence of a large quantity of drugs. United
States v. Martinez, 430 F.3d 317, 333 (6th Cir. 2005), cert. denied, 126 S. Ct. 1603 (2006) (citing
United State v. Brown, 332 F.3d 363, 373 (6th Cir. 2003)).
Defendants first argue that the evidence showed that independent individuals operated in the
same area, buying and selling crack cocaine as self-interested competitors, not as members of a
chain conspiracy. This contention is without merit. The government produced ample evidence of
a conspiracy. This evidence included testimony that conspirators pooled money to purchase drugs,
as Defendant Cloud did with Hall, and testimony that conspirators cooperated to attempt to evade
law enforcement, such as Defendant Caver taking photographs with Ralph Jones, or Defendant
Cloud discussing ways to elude the law with Wilson, Bell, Wylie, and Hall. The government also
presented evidence that conspirators worked together, such as when Defendant Abdullah intended
to work with Hall to sell crack cocaine to Morris, before Hall backed out because he recognized the
undercover police car. Moreover, the record demonstrates that all Defendants repeatedly engaged
in regular, high-volume drug sales. This evidence was sufficient for a reasonable jury to find the
existence of a conspiracy. See Martinez, 430 F.3d at 332-33.
Defendants next argue, citing Henley, that no conspiracy exists here because the alleged
coconspirators did not depend on each other for success.6 See Henley, 360 F.3d at 513 (“One can
assume that the participants understand that they are participating in a joint enterprise because
success is dependent on the success of those from whom they buy and to whom they sell.” (quoting
Spearman, 186 F.3d at 746)). But this Court has never held that conspirators must only buy from
and/or only sell to one individual in order for a “chain” conspiracy to exist. See Spearman, 186 F.3d
at 745 (upholding convictions for conspiracy where testimony demonstrated that it was “common
for people who sold cocaine to buy back and forth from one another when their supplies ran low”).
The distribution patterns here were generally hierarchical, notwithstanding the fact that individuals
at various levels of distribution did buy and sell to one another, or purchase drugs from sources who
were not their normal suppliers. As officer Lucas testified at trial, Cleveland was a “consumer” city
6
Defendant Cloud also argues that he could not “depend on” other coconspirators for success because the
evidence demonstrated that he did not transact business with several members of the conspiracy. This argument is
inconsistent with the longstanding principle that a conspiracy conviction will stand if “each member of the conspiracy
realized that he was participating in a joint venture, even if he did not know the identities of every other member, or was
not involved in all the activities in furtherance of the conspiracy.” Martinez, 430 F.3d at 332-33; Blumenthal v. United
States, 332 U.S. 539, 556-57 (1947); see also United States v. Potts, No. 97-6000, 1999 WL 96756, *7 (6th Cir. Feb.
2, 1999) (unpublished disposition) (holding that evidence was sufficient for jury to find that the defendant participated
in the conspiracy “even though he did not have a relationship with all of his fellow co-conspirators”).
Nos. 05-3295/3297/3344 United States v. Caver, et al. Page 8
where, when one dealer’s source of supply runs out, purchaser and seller arrangements may realign.
The fact that there were sales between conspirators that deviated from a pure pyramid structure does
nothing, however, to strengthen Defendants’ case. The crux of the matter is whether Defendants
agreed to engage in a cooperative enterprise, as opposed to mere buyer/seller relationships, and the
existence of these non-hierarchical sales is at least as consistent with a finding that the former was
the true nature of Defendants’ dealings.
Defendants each individually argue that, even if the evidence was sufficient for a rational
jury to find a conspiracy, the evidence did not show that they were part of that conspiracy. We
address each of these claims in turn.
1. Defendant Cloud
There was sufficient evidence for a rational jury to find that Defendant Cloud was a member
of the conspiracy for which he was indicted. The evidence demonstrated that Defendant Cloud
combined his money together with Hall to purchase large quantities of drugs on repeated occasions.
Defendant Hall testified that they would pool their money together and buy an eighth or a quarter
of a kilogram of crack cocaine “every day almost.” In addition, Defendant Cloud sold drugs on
repeated occasions to Collier, Felix, Wilson, Ralph Jones, Jermaine Jones, and Walker. Notably,
Defendant Cloud’s distribution to Jermaine Jones occurred two to three times per week over the
period in question. This evidence clearly can establish more than a buyer/seller relationship; it
suffices to establish a conspiracy. See Brown, 332 F.3d at 373 (holding that a close relationship
between alleged conspirators and repeated, large volume transactions were sufficient to establish
a conspiracy).
2. Defendant Abdullah
The evidence is likewise sufficient to conclude that Defendant Abdullah was a participant
in the conspiracy. The government produced evidence that Defendant Abdullah also engaged in
repeated, high-volume sales and purchases of crack cocaine. Hall testified that he sold Defendant
Abdullah ounces or portions of an ounce of crack cocaine “every day, or every other day.” Stokes
testified that he purchased crack from Defendant Abdullah once a week. Howard, Morris, Anderson,
Ralph Jones, and Walker also testified that they had engaged in crack cocaine transactions with
Defendant Abdullah on more than one occasion. There was also evidence that Defendant Abdullah
cooperated with other coconspirators. For example, Defendant Abdullah accompanied Hall to sell
Morris crack cocaine. Ralph Jones also testified that, on some occasions, Jones would call
Defendant Cloud for drugs, but Defendant Abdullah would instead show up to complete the
transaction. This evidence is sufficient for a jury to conclude that Defendant Abdullah had
voluntarily agreed to enter into a conspiracy to possess crack cocaine with the intent to distribute.
See id.
3. Defendant Caver
The evidence is also sufficient to conclude that Defendant Caver knowingly agreed to
become a member of the conspiracy. Witnesses at trial likewise testified about repeated, high-
volume sales and purchases with Defendant Caver. Hall sold Defendant Caver one-ounce quantities
numerous times during the relevant period. Wilson, Ralph Jones, Jermaine Jones, Walker,
McCristall, and Wylie also testified that they engaged in multiple transactions with Defendant
Caver. Defendant Caver actively cooperated with Ralph Jones in efforts to evade the police, both
by paying Jones to act as a “jump boy” and by photographing the neighborhood. These efforts were
clearly designed to further the distribution of crack cocaine. In sum, the evidence at trial was
sufficient to allow a jury to infer that Defendant Caver had knowingly participated in a conspiracy,
and was not just a mere buyer or seller. See id.; Cf. Henley, 360 F.3d at 514 (trust between drug
dealers involved in extending drugs on credit supports the inference of a conspiracy).
Nos. 05-3295/3297/3344 United States v. Caver, et al. Page 9
B. VARIANCE
On appeal, Defendants argue that a variance existed between the proof offered at trial and
the allegations in the indictment because, according to Defendants, the indictment alleged only a
single conspiracy and the evidence at trial demonstrated, at most, multiple conspiracies. This court
requires that the issue of variance be raised at trial. United States v. Wilson, 168 F.3d 916, 923 (6th
Cir. 1999). Because Defendants Cloud and Abdullah did not raise the issue of variance at trial, we
review their claims only for plain error. Id. Defendant Caver did, however, raise the issue before
the district court. We will therefore reverse his conviction if a variance occurred and that variance
affected his substantial rights. United States v. Blackwell, 459 F.3d 739, 762 (6th Cir. 2006) (citing
United States v. Solorio, 337 F.3d 580, 589 (6th Cir. 2003)).
The court of appeals reviews the question of whether a variance has occurred de novo.
Solorio, 337 F.3d at 589. A variance to the indictment occurs when the charging terms of the
indictment are unchanged, but the evidence at trial proves facts materially different from those
alleged in the indictment. Id. Within the context of a conspiracy, a variance constitutes reversible
error only if a defendant demonstrates that he was prejudiced by the variance and that the
“indictment allege[d] one conspiracy, but the evidence can reasonably be construed only as
supporting a finding of multiple conspiracies.” United States v. Warner, 690 F.2d 545, 548 (6th Cir.
1982) (emphasis added). In making this determination, the evidence must be viewed in the light
most favorable to the government. See id. at 549.
1. Existence of a single conspiracy
In the instant case, the evidence does not exclude the possibility that Defendants were part
of a single conspiracy. Stripping away the many interconnecting drug transactions that occurred
between various conspirators on infrequent occasions, testimony established that there was a regular
pattern of distribution for a large quantity of drugs: Morris would sell one-eighth kilograms to Hall
and Cloud working together “every day almost.” J.A. at 1125. Hall would then sell ounces to
Defendant Abdullah, “every day, or every other day.” J.A. at 1084. Hall also sold drugs to
Defendant Caver in one-ounce quantities “numerous times.” J.A. at 1142. Even if the direct
contacts between Defendant Caver and Defendant Abdullah were infrequent or nonexistent, a
reasonable jury could find that all three defendants were part of a single “chain” conspiracy. See
Warner, 690 F.2d at 549 (“[A] single conspiracy does not become multiple conspiracies simply
because each member of the conspiracy did not know every other member, or because each member
did not know of or become involved in all of the activities in furtherance of the conspiracy.”).
Defendants Abdullah and Caver were on the same “horizontal” level of distribution because both7
defendants were supplied from drugs jointly purchased from Morris by Defendant Cloud and Hall.
Our cases demonstrate that two parties, on the same horizontal level of distribution, can be part of
a single “chain” conspiracy. In United States v. Lee, 991 F.2d 343 (6th Cir. 1993), we held that the
government had proven a single conspiracy under materially indistinguishable facts. In Lee,
defendant Lee assisted Dortch in the transportation of cocaine from Miami, Florida to Detroit,
Michigan, where Lee then assisted in its distribution. Id. at 349. In rejecting Lee’s argument that
multiple conspiracies were proven, we held that “[a]lthough Dortch may have had several
‘customers’ in the Detroit area, each of these customers were part of the same ‘chain’ conspiracy,
the object of which was the transportation of cocaine from Florida to Michigan and the distribution
of cocaine in the Detroit area.” Id. Similarly, the jury could have found that Defendants here were
part of a single conspiracy with the goal of distributing crack cocaine in the area of West 80th Street,
West 83rd Street, and Detroit Avenue, because Defendants Caver and Abdullah were customers of
7
There were other links between Defendants. For example, Defendant Caver cooperated extensively with Ralph
Jones, who was also a repeat customer of Defendant Cloud and Defendant Abdullah. Walker was also a mutual business
partner of all three defendants.
Nos. 05-3295/3297/3344 United States v. Caver, et al. Page 10
Hall and/or Defendant Cloud, even if they rarely interacted with each other. See id; see also United
States v. Kelly, 849 F.2d 999, 1003 (6th Cir. 1988) (holding that a defendant who was involved only
in distributing drugs in San Francisco was part of a single conspiracy with a common distributor
who also operated in Washington and Los Angeles).
2. Prejudice
Even assuming, arguendo, that the evidence demonstrated only multiple conspiracies, we
would still be compelled to affirm Defendants’ convictions, because Defendants cannot demonstrate
prejudice. Where the evidence demonstrates only multiple conspiracies, a defendant is prejudiced
if the error of trying multiple conspiracies under a single indictment substantially influenced the
outcome of the trial. Kotteakos v. United States, 328 U.S. 750, 765 (1956) (“The inquiry cannot be
merely whether there was enough to support the result, apart from the phase affected by the error.
It is rather, even so, whether the error itself had substantial influence. If so, or if one is left in grave
doubt, the conviction cannot stand.”). The primary risk is the transference of guilt from defendants
involved in one conspiracy to defendants in another conspiracy. See id. at 774; Blackwell, 459 F.3d
at 762 (“[T]he inquiry into whether a variance constitutes reversible error focuses on whether a
danger exists that the defendant was convicted based on evidence of a conspiracy in which the
defendant did not participate.” (citing United States v. Mack, 837 F.2d 254, 258 (6th Cir.1988))).
This risk increases in direct proportion to the number of defendants, and the number of conspiracies
demonstrated at trial. See Kotteakos, 328 U.S. at 766.
Defendants cannot demonstrate prejudice in this case. Assuming, arguendo, that multiple
conspiracies existed, the evidence indicates that this case involved two conspiracies: One involving
Morris, Hall, Defendant Cloud, Defendant Caver, and the various persons further down this
distribution chain; and a separate conspiracy involving Morris, Hall, Defendant Cloud, Defendant
Abdullah, and the various persons further down this distribution chain. Only three Defendants were
tried, over a trial that lasted one week. See Blackwell, 459 F.3d at 762 (contrasting the eight
conspiracies established in Kotteakos, 328 U.S. at 766, with the two conspiracies established in
Berger v. United States, 295 U.S. 78 (1935)). Furthermore, Defendants were charged with conduct
of approximately equal culpability; this was not a case where a defendant with a relatively minor
role was forced to endure an extended trial where the bulk of the evidence did not pertain to him.
And the witnesses at trial also were careful to specify what interactions they had had with each
individual defendant. In light of these facts, we cannot say that, assuming that the evidence only
demonstrated multiple conspiracies, Defendants were prejudiced by being tried together, regardless
of whether the standard is plain error or harmless error.
C. SEVERANCE
Before trial began, Defendant Caver moved for severance. The trial court denied that
motion, and Defendant Caver challenges this denial on appeal.8 We review the district court’s
denial of severance for a clear abuse of discretion. United States v. Beverly, 369 F.3d 516, 534 (6th
Cir. 2004).
Federal Rule of Criminal Procedure 8(b) provides for joinder of defendants in a criminal
case:
The indictment or information may charge 2 or more defendants if they are alleged
to have participated in the same act or transaction, or in the same series of acts or
transactions, constituting an offense or offenses. The defendants may be charged in
8
Defendant Caver properly renewed this motion at the close of evidence, and has thus preserved the issue for
appeal. See United States v. Sturman, 951 F.2d 1466, 1476 (6th Cir. 1991).
Nos. 05-3295/3297/3344 United States v. Caver, et al. Page 11
one or more counts together or separately. All defendants need not be charged in
each count.
The exception to this rule is stated in Federal Rule of Criminal Procedure 14(a), which
provides that “[i]f the joinder of offenses or defendants in an indictment . . . appears to prejudice a
defendant or the government, the court may . . . sever the defendants’ trials.”
“[A] strong policy presumption exists in favor of joint trials when charges will be proved by
the same evidence and result from the same acts.” Beverly, 369 F.3d at 534 (citing United States
v. Hamilton, 689 F.2d 1262, 1275 (6th Cir. 1982)). Society has an interest in speedy and efficient
trials. See United States v. Moore, 917 F.2d 215, 220 (6th Cir. 1990). Separate trials produce
additional labor for judges and juries, which results from the unnecessary repetition of evidence and
trial procedures. Moreover, the risk of prejudice to defendants in a joint trial is presumably low,
because “juries are presumed capable of sorting evidence and considering separately each count and
each defendant.” United States v. Welch, 97 F.3d 142, 147 (6th Cir. 1996). These considerations
are overcome “only if there is a serious risk that a joint trial would compromise a specific trial right
of one of the defendants, or prevent the jury from making a reliable determination about guilt or
innocence.” Murr v. United States, 200 F.3d 895, 904 (6th Cir. 2000) (quoting Zafiro v. United
States, 506 U.S. 534, 539 (1993)). Thus, “a defendant seeking severance at trial bears a strong
burden and must demonstrate substantial, undue, or compelling prejudice.” United States v. Davis,
177 F.3d 552, 558 (6th Cir. 1999).
Defendant Caver argues that this substantial, undue, or compelling prejudice flows from two
sources: (1) testimony that suggested that Defendants Cloud and Abdullah engaged in more drug
transactions, and transactions involving larger quantities of drugs; and (2) evidence of violent threats
by Defendants Cloud and Abdullah against government witnesses.
We conclude that the district court did not abuse its discretion in refusing to sever Defendant
Caver. While we acknowledge the possibility that Defendant Caver might have suffered some slight
disadvantage from being tried along with defendants who were higher up in the distribution chain and
more frequently employed threats of violence, this disadvantage is insufficient to overcome the strong
presumption that the jury is capable of sorting through the evidence. See Welch, 97 F.3d at 147. As
stated earlier, the government witnesses exhibited a relatively great degree of precision in delineating
the transactions that they engaged in with the individual defendants.9 And the difference between
the quantity purchased by Defendant Cloud and Defendant Caver was relatively small: Hall
suggested that he and Cloud collectively would buy upwards of a quarter-kilogram, which is equal
to approximately nine ounces shared between two people; evidence suggested that Defendant Caver
would purchase one-ounce quantities. Although the evidence at trial that tended to show that
Defendants Abdullah and Cloud made threats to witnesses also created a small risk of prejudice, this
risk of prejudice is ameliorated under these circumstances. Many of the threats came before the jury
by way of letters written by Defendant Cloud, yet the jury had letters written by Defendant Caver
before it as well, and his letters were not threatening in tone.10 This diminishes the chances that a
jury would improperly impute guilt to Defendant Caver, let alone the “substantial, undue, or
9
We note that, in fact, the jury does appear to have drawn a distinction between the defendants in this case:
It found Defendants Caver and Abdullah guilty of conspiracy to possess with intent to distribute at least 500 grams, but
less than 1.5 kilograms of crack cocaine, while it found Defendant Cloud guilty of conspiracy to possess with intent to
distribute 1.5 or more kilograms of crack.
10
These letters are discussed extensively in Part D.2, infra.
Nos. 05-3295/3297/3344 United States v. Caver, et al. Page 12
compelling prejudice” required to justify a severance.11 See Davis, 177 F.3d at 558. The district
court did not abuse its discretion in denying Defendant Caver’s motion to sever.
D. EVIDENTIARY RULINGS
1. Hearsay evidence
Defendant Caver argues that the district court improperly admitted hearsay testimony against
him. Over Defendant Caver’s objection, the district court admitted the testimony of officer
Schroeder, a Cleveland Police Officer, who testified that on March 18, 2003, Sergeant Dvorak briefed
police officers that “there was a male by the name of Calvin Caver that was responsible for dealing
a lot of drugs, crack cocaine, in the West 80th and Detroit Areas.” J.A. at 630. This court reviews
the district court’s decision to admit hearsay evidence de novo. Barnes v. City of Cincinnati, 401
F.3d 729, 742 (6th Cir.), cert. denied, 126 S. Ct. 624 (2005). The improper admission of hearsay
evidence “is harmless error ‘unless it is more probable than not that the error materially affected the
verdict.’” Id. (quoting United States v. Hernandez, 227 F.3d 686, 696 (6th Cir. 2000)).
Hearsay is defined by the Federal Rules of Evidence as “a statement, other than one made by
the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the
matter asserted.” Fed. R. Evid. 801(c). Hearsay evidence is generally inadmissible, subject to the
exceptions set forth in the Federal Rules of Evidence. See Fed. R. Evid. 802.
At trial, the district court admitted Schroeder’s testimony, reasoning that it was background
information. Background information that explains how law enforcement came to be involved with
a particular defendant is not hearsay, because it is not being offered for the truth of the matter
asserted. United States v. Aguwa, 123 F.3d 418, 421 (6th Cir. 1997). Instead, background
information may be admitted to show the effect of hearing that information upon the testifying
witness, who subsequently, as a result of the background information, acquires the knowledge that
provides the foundation for the witness’s testimony. See United States v. Evans, 883 F.2d 496, 501
(6th Cir. 1989) (background information is admissible to “construct the sequence of events leading
up to the drug transaction”).
In this case, the statement at issue, “that a male by the name of Calvin Caver was responsible
for dealing a lot of drugs,” was not background information because the statement played no part in
the causal sequence of events leading up to the admissible testimony based on Schroeder’s personal
observations. Later in the evening, after Dvorak had briefed Schroeder and other police, Schroeder
was involved in the surveillance of Defendant Caver’s car, which led to Defendant Caver’s arrest that
same night. Schroeder watched the black Dodge Intrepid that Defendant Caver was driving as the
driver made what appeared to be a drug deal through the passenger window, and then the car drove
to a different location where another individual entered the black Intrepid briefly before driving away
in a separate car. But Schroeder did not know what Defendant Caver looked like, and had no reason
to suspect that it was Defendant Caver driving the black Intrepid. The information Schroeder
received from Dvorak, therefore, was not background information to Schroeder’s participation in
Defendant Caver’s arrest; it was merely a coincidence that Schroeder was briefed about Defendant
Caver the same night that he was involved in arresting Defendant Caver. Because Dvorak’s
statement was not background information, it was inadmissible hearsay, as there was no proper
purpose for which it was offered.
11
Defendant Caver’s assertion that trying him separately would require no extra resources is plainly incorrect.
Along with the additional labor that would be required from a judge and jury, here the witnesses overlapped
significantly–of 26 witnesses called, at least 20 of them offered testimony that was relevant to the prosecution of
Defendant Caver.
Nos. 05-3295/3297/3344 United States v. Caver, et al. Page 13
Although the district court erred in admitting Schroeder’s hearsay testimony, this error does
not require reversal because it is not more probable than not that the error materially affected the
verdict. See Barnes, 401 F.3d 742. The record was replete with direct evidence that Defendant Caver
was dealing drugs in the West 80th Street and Detroit Avenue area. The evidence showed that
Defendant Caver was arrested twice for dealing crack cocaine in the amounts of 12.04 and 2.93
grams, and also included numerous coconspirators’ testimony to the effect that Defendant Caver was
dealing a large volume of crack cocaine throughout 2002 and 2003. In light of this evidence, we hold
that the district court’s error in admitting Schroeder’s testimony was harmless.
2. Defendants Cloud’s and Caver’s letters
Defendants Cloud and Caver next argue that their convictions should be vacated because the
district court admitted various letters that they wrote to coconspirators. Defendants contend that the
letters were inadmissible because their admission violated Federal Rule of Evidence 403. We review
the district court’s evidentiary rulings under Rule 403 for abuse of discretion. United States v. Bonds,
12 F.3d 540, 567 (6th Cir. 1993). The district court has “very broad” discretion in weighing the
evidence under Rule 403. United States v. Newsom, 452 F.3d 593, 603 (6th Cir. 2006) (quoting
United States v. Vance, 871 F.2d 572, 576 (6th Cir.1989)). Moreover, because Defendants did not
object to the admission of the letters at trial, we review only for plain error. Id at 602.
Rule 403 governs whether evidence that is relevant under Federal Rule of Evidence 401 is
admissible. Rule 403 states that, “[a]lthough relevant, evidence may be excluded if its probative
value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or
misleading the jury, or by considerations of undue delay, waste of time, or needless presentation of
cumulative evidence.” Here, Defendants contend that the prejudicial effect of the letters substantially
outweighed their probative value. We note that “[u]nfair prejudice does not mean the damage to a
defendant’s case that results from the legitimate probative force of the evidence; rather it refers to
the evidence which tends to suggest [a] decision on an improper basis.” Newsom, 452 F.3d at 603
(quoting Bonds, 12 F.3d at 567) (alteration in original).
a. Defendant Caver
The district court admitted five letter letters from Defendant Caver to Ralph Jones, exhibits
41, 42, 46, 47, and 48; one letter from Defendant Caver to Wilson, exhibit 50; and one letter from
Defendant Caver to Hall, exhibit 51. Exhibit 41 states Defendant Caver’s hope that Jones will sign
an affidavit stating that Jones and Defendant Caver did not engage in any drug transactions together.
Exhibit 42 expresses Defendant Caver’s happiness in being able to see Jones, and Defendant Caver’s
belief that Jones would have a better chance at trial than Defendant Caver. Exhibit 46 asks Jones for
information as to what he knows concerning the testimony he might proffer, so that Defendant Caver
may prepare his defense. Exhibit 47 expresses Defendant Caver’s opinion that Jones should wait
before pleading guilty, and that Jones should not testify against Defendant Caver. Exhibit 48
instructs Jones not to listen to his lawyer. Exhibit 50, to Wilson, summarizes the indictment for
Wilson, contains an affidavit for Wilson to sign stating that Wilson did not conspire with any of the
persons indicted, and expresses Defendant Caver’s belief that Wilson would get a minimal amount
of prison time if he went to trial. Exhibit 51, translated from a crude code, asks Hall if he admits that
some of his statements are lies, but instructs Hall not to answer that question, and goes on to state that
the letter is just about saying hello.
The evidence was all relevant to some degree. The indictment against Defendant Caver
included an obstruction of justice specification. See U.S. Sentencing Guidelines Manual § 3C1.1
(2004) (hereinafter “U.S.S.G.”) (defining obstructing or impeding the administration-of-justice
specification and directing a sentencing increase of two levels). Exhibits 41 and 50, which request
affidavits, are unquestionably relevant to this specification. Although the connection is less direct,
Nos. 05-3295/3297/3344 United States v. Caver, et al. Page 14
the other letters to Jones can be construed as part of an on-going attempt to influence Jones to change
his legal strategy for Defendant Caver’s benefit, and thus they are relevant under Rule 401. See Old
Chief v. United States, 519 U.S. 172, 178-79 (1997) (discussing relevance). As for the letter to Hall,
the relevance is still more attenuated, but we cannot say that this letter does not have “‘any tendency
to make the existence of any fact that is of consequence to the determination of the action more
probable or less probable than it would be without the evidence.’” Id. at 178 (quoting Fed. R. Evid.
401). The letter does ask Hall to admit that some of his statements are “lies,” which could be fairly
interpreted as an attempt to convince Hall not to testify against Defendant Caver.
The question then becomes whether the district court abused its discretion in concluding that
the probative value outweighed the prejudicial effect. We cannot conclude that it so clearly did as
to rise to the level of plain error. Generally, the tone of Defendant Caver’s letters was congenial, and
the letters were consistently nonthreatening. The only improper prejudice suggested by Defendant
Caver is that the letters used foul language and derogatory terms for counsel and the criminal justice
system. Any improper prejudice stemming from these bases is low, at least when compared to the
prejudice that was present in cases where an appellate court concluded that the district court abused
its discretion under Rule 403. See, e.g., id. at 191 (concluding that prejudice from a felony conviction
for assault outweighed probative value in trial for assault and being a felon in possession of a firearm
where defendant was willing to stipulate to the fact that he had a prior felony conviction); Newsom,
452 F.3d at 604 (prejudice from defendant’s tattoos of “thug life” and depiction of an armed man
outweighed any conceivable probative value). Thus, although the probative value of some of the
letters was low, so was the unfair prejudice. We cannot conclude that admitting the evidence was
plain error.
b. Defendant Cloud
The district court admitted nine letters against Defendant Cloud.12 Exhibit 29 is a letter to
an unknown recipient (it is addressed to “family”) seized as a result of Defendant Cloud’s October 3,
2003 arrest. It expresses anger towards the recipient for sharing information with Defendant Cloud’s
mother, and Defendant Cloud’s readiness to retaliate should the recipient cross Defendant Cloud.
Exhibit 31 is a letter to Morris, where Defendant Cloud expresses his anger with Morris for
cooperating with the government. Defendant Cloud does not threaten Morris, but rather pleads for
Morris not to testify against him. He also asks Morris to sign an affidavit indicating that Morris had
not engaged in drug transactions with Defendant Cloud. Exhibit 33 is a letter addressed to Collier
(although Collier never received it). The letter contains thinly-veiled threats that Collier would place
his family in danger by cooperating with the government. Exhibit 34 is a letter to Walker, where
Defendant Cloud calls Walker a “snitch” and a “rat.” Exhibits 39 and 40 are letters to Hall where
Defendant Cloud expresses his anger at Hall for cooperating with the government. Exhibit 44 is
another letter to Walker where Defendant Cloud expresses his dissatisfaction with Walker’s
cooperation with the government. Exhibit 45 is a letter to Ralph Jones in which Defendant Cloud
states that he signed Jones’s affidavit, so now Jones should sign Defendant Cloud’s affidavit.
The indictment also contained an obstruction of justice specification against Defendant Cloud.
Exhibits 31, 33, and 45 are all clearly relevant to this specification. See U.S.S.G. § 3C1.1. Exhibits
29, 34, 39, 40, and 44 are less relevant, although they could still fairly be construed as an attempt to
unlawfully influence government witnesses. See id. at cmt. 4(a). The question then becomes whether
12
In the list of exhibits Defendant Cloud alleges to be prejudicial, he also includes a letter from Hall to
Defendant Cloud, exhibit 35. However, because Defendant Cloud makes no argument with respect to that specific letter,
and because a letter to Defendant Cloud is inconsistent with his theory of prejudice, we need not specifically consider
this letter. See Dillery v. City of Sandusky, 398 F.3d 562, 569 (6th Cir. 2005) (issues raised in a perfunctory manner are
waived). We note, however, that there is nothing in the letter’s content to suggest that considering it would alter our
analysis.
Nos. 05-3295/3297/3344 United States v. Caver, et al. Page 15
the unfair prejudice substantially outweighs the probative value. As an initial matter we note that,
with respect to the threats, the probative value rises in tandem with the unfair prejudice–the more
serious and imminent the threat, the greater the possibility that the jury convicted Defendant Cloud
because he is an individual who makes violent threats (as opposed to being a conspirator), but the
more probative the letter was to the obstruction of justice specification. Defendant Cloud argues,
however, that the letters were nonetheless unfairly prejudicial, because they contained street jargon,
profanity, and painted an unfavorable picture of him. While Defendant Cloud is surely correct that
the letters interjected some risk of unfair prejudice, we cannot say, given the broad discretion
afforded to the district court, that it was a plain error to admit them. See Newsom, 452 F.3d at 603.
Moreover, even assuming that it was plain error, we would still be compelled to affirm
Defendant Cloud’s conviction. Before this Court will reverse for plain error, the defendant must meet
the burden of showing that the error “must have affected the outcome of the District Court
proceedings.” United States v. Thomas, 11 F.3d 620, 630 (6th Cir. 1993) (quoting United States v.
Olano, 507 U.S. 725, 734 (1993)). Given the substantial evidence in the record supporting Defendant
Cloud’s conviction, we cannot conclude that Defendant Cloud has demonstrated that the error, if any,
affected the outcome.
E. IMPROPER STATEMENTS BY WITNESSES
Defendants allege that several improper statements by witnesses at trial required the district
court to grant a mistrial, and that its failure to do so was erroneous. We review the district court’s
denial of a motion for a mistrial for abuse of discretion. United States v. Martinez, 430 F.3d 317, 336
(6th Cir. 2005). In considering whether improper statements warrant granting a mistrial, this Court
evaluates five factors:
(1) whether the remark was unsolicited, (2) whether the government’s line of
questioning was reasonable, (3) whether a limiting instruction was immediate, clear,
and forceful, (4) whether any bad faith was evidenced by the government, and
(5) whether the remark was only a small part of the evidence against the defendant.
Zuern v. Tate, 336 F.3d 478, 485 (6th Cir. 2003) (citing United States v. Forrest, 17 F.3d 916 (6th
Cir. 1994)). In making this inquiry, the “primary concern is fairness to the defendant.” Forrest, 17
F.3d at 919. With this framework in mind, we now turn to the specific statements.
1. Walker’s statement
On direct examination, the government was allegedly attempting to elicit testimony about
a quarter-kilogram of crack cocaine that Defendant Cloud’s girlfriend flushed down the toilet on July
4, 2003. The following exchange occurred between the prosecution and Walker:
Q. Did any of your transactions occur [at Cloud’s girlfriend’s house]?
A. Yes.
Q. And can you tell us about that, Mr. Walker?
A. I would call him and tell him I’m on my way over there, and I would go up there.
Q. Did you have a conversation with Fred Cloud about a Fourth of July incident in 2003?
A. Yes.
Q. Can you tell use about that?
Nos. 05-3295/3297/3344 United States v. Caver, et al. Page 16
A. Oh, about when, when his – he tried to spray gasoline over his baby’s mother’s house.
J.A. at 1656-57. Defense counsel objected, and the court stated, “there was no reason for that, was
there? The jury will disregard that last answer.” J.A. at 1657. Defendant Cloud later moved for a
mistrial, which the district court denied.
Applying the factors from Forrest, we conclude that the district court did not abuse its
discretion in denying a mistrial. The government was in the process of questioning Walker on a
legitimate line of inquiry, and there is nothing in the record to suggest that they solicited the remark.
The line of questioning was also reasonable, as it was aimed at eliciting admissible testimony,
specifically, the amount of drugs involved. The district court immediately instructed the jury to
disregard the testimony, and Defendant Cloud’s counsel asked that no other instruction be given to
the jury on the matter. There was also no indication of bad faith on the part of the government; in
fact, Defendant Cloud’s counsel stated that he “certainly [didn’t] believe the government would
deliberately [elicit such testimony].” J.A. at 1666. Finally, as discussed above, the evidence against
Defendant Cloud was substantial. In sum, all factors cut in favor of the government, and the court
did not abuse its discretion in not granting a mistrial.
2. Hall’s statement
On direct examination, the government was asking Hall about the activities in which he had
seen Defendant Abdullah participate. The following exchange took place:
Q. What did you see Mr. Abdullah doing in that time frame, 2002 and 2003, in the
neighborhood?
A. Selling crack.
Q. And how often would you see that?
A. It was real often. I had just got out of jail in 2002, so in 2003 – I got out of jail in 2002,
September 5 – September 19 of ‘02. And when I got out there, he was really out there grinding.
Then he went to jail. Then when he got out of jail –
Q. Just what you saw, Mr. Hall, out there.
J.A. at 1086-87. Defendant Abdullah’s attorney requested a side-bar, where he moved for a mistrial.
The district court denied the motion.
Applying the factors from Forrest, the district court did not abuse its discretion in denying
Defendant Abdullah’s motion for a mistrial. At the side-bar, Defendant Abdullah admitted that the
remark was unsolicited–in fact, the government cut Hall off immediately. The government’s line of
questioning, about what direct knowledge its witness had of Defendant Abdullah’s drug dealing, was
reasonable, relevant questioning not likely to result in information that was improperly prejudicial.
Although no limiting instruction was given, Defendant Abdullah’s trial strategy was to avoid calling
attention to the statement. There is a paradoxical impossibility in asking an individual not to think
about a particular fact, because that very request calls attention to the fact that is to be ignored. See
Ferguson v. Knight, 809 F.2d 1239, 1243 (6th Cir. 1987). This course of not drawing attention to the
statement may be perfectly sound from a tactical standpoint, but, once undertaken, any objection to
Nos. 05-3295/3297/3344 United States v. Caver, et al. Page 17
the lack of a limiting instruction should fall on deaf ears.13 There is also no indication of bad faith
on the part of the government. Finally, there was substantial evidence against Defendant Abdullah.
All factors favor the government; the district court did not abuse its discretion in denying Defendant
Abdullah’s motion for a mistrial.
3. Morris’s statement
During cross examination, counsel for Defendant Abdullah asked Morris in which city he
lived. The following exchange took place:
Q. Did you own the home you were living in?
A. No.
...
Q. And where was it?
A. That’s irrelevant.
Q. What city was it in?
A. That’s irrelevant.
[Defendant’s Abdullah’s counsel]. Your honor, would you direct the witness to answer the
question please? He’s making legal determinations.
[Morris]. So they can come back and have somebody kill my daughter and my kids?
J.A. at 1005.
Defendant Cloud and Defendant Caver argue that the court should have granted a mistrial in
response to this statement. However, as neither Defendant objected at trial, we review only for plain
error. United States v. Kincaide, 145 F.3d 771, 781 (6th Cir. 1998).
Applying the Forrest factors, we conclude that the court’s failure to sua sponte declare a
mistrial does not amount to plain error. Because the remark occurred on cross examination, whether
the government solicited the remark is inapplicable, as is the question of whether the government’s
line of questioning was reasonable. There was no indication of bad faith by the government, and
there was substantial evidence against Defendant Cloud and Defendant Caver adduced at trial. The
fact that there was no limiting instruction, on the other hand, favors Defendants, but this alone is not
sufficient to carry Defendants’ burden of plain error. We conclude that no plain error occurred.
13
We note that Defendant Abdullah’s counsel did not specifically ask the court not to issue a limiting
instruction, but this message was clear from Defendant Abdullah’s counsel’s conduct and the discussion he had with the
district judge. First, Defendant Abdullah’s counsel intentionally waited for Hall’s testimony to proceed to a different
matter before calling a side-bar to move for a mistrial, so that the jury would not link the side-bar to the comment, which
would call attention to the comment. Second Defendant Abdullah’s counsel stated “I didn’t want to call attention to
[the comment] when it was said.” J.A. at 1087. Third, Defendant Abdullah’s counsel did not ask for a limiting
instruction after his motion for a mistrial was denied or otherwise. Under these circumstances, we conclude that it was
counsel’s strategy that the district court not issue a limiting instruction.
Nos. 05-3295/3297/3344 United States v. Caver, et al. Page 18
4. Hall’s statements
Defendant Cloud additionally objects to two statements made during the direct examination
of Hall. Hall, being asked how he recognized an undercover police car, responded that “I have got
arrested with Fred Cloud before.” J.A. at 1093. Defendant Cloud moved to strike, and the motion
was sustained. Defendant Cloud did not move for a mistrial. Later, the government asked Hall if he
recalled Defendant Cloud selling drugs in the neighborhood during the 2002 to 2003 time frame.
Hall responded, “Well, in 2002 when I got out of jail, [Defendant Cloud] was on house arrest.” J.A.
at 1126. Defendant Cloud again did not make a motion for a mistrial. We thus review for plain error.
Kincaide, 145 F.3d at 781.
We conclude that the district court did not commit plain error in failing to sua sponte declare
a mistrial. These remarks were unsolicited. The government’s questioning, which related to events
that were relevant to the conspiracy, was reasonable. There was no indication of bad faith on the part
of the government, and the evidence against Defendant Cloud was substantial. The only Forrest
factor that favors Defendant Cloud is the failure of the district court to give a limiting instruction.
This failure does not amount to plain error.
F. JURY INSTRUCTIONS
Defendants challenge two jury instructions on appeal. First, Defendant Caver objects to the
district court’s failure to instruct the jury about multiple conspiracies.14 Second, Defendant Caver
and Cloud object to the district court’s instruction that “[a] defendant found guilty of conspiracy is
accountable for all quantities of drugs for which he was directly involved, and all reasonably
foreseeable quantities.” J.A. at 1916. Defendants allege that “directly involved” and “reasonably
foreseeable” required elaboration.
1. Multiple Conspiracies
“[W]hen the evidence is such that the jury could within reason find more than one conspiracy,
the trial court should give the jury a multiple conspiracy instruction.” United States v. Warner, 690
F.2d 545, 551 (6th Cir. 1982). A defendant is entitled to reversal of a conviction based on the district
court’s failure to give a requested jury instruction if “(1) the instructions are correct statements of the
law; (2) the instructions are not substantially covered by other delivered charges; and (3) the failure
to give the instruction impairs the defendant’s theory of the case.” United States v. Newcomb, 6 F.3d
14
The multiple conspiracy instruction proposed by Defendant Caver reads:
Where persons have joined together to further one common unlawful design or purpose, a
single conspiracy exists. By way of contrast, multiple conspiracies exist where there were separate
unlawful agreements to achieve distinctive purposes. If you determine that the evidence presented
could possibly be construed only as supporting the existence of multiple conspiracies, you may
consider only the evidence regarding a specific defendant’s action or actions of individuals belonging
to the conspiracy to which the defendant also belonged. That is to say, it would be improper to return
a guilty verdict with respect to a defendant based on evidence relating to acts committed by someone
belonging to a conspiracy of which the defendant was not a member. In determining whether the
evidence showed single or multiple conspiracies, you must bear in mind the essence of the crime of
conspiracy’s agreement.
Mere presence at the scene of an alleged transaction or event, mere association with person
involved in a criminal enterprise, or mere similarity of conduct among various persons and the fact
that they have associated with each other and may have assembled together and discussed common
names and interests does not necessarily establish proof of the existence of a conspiracy. Also a
person who has no knowledge of a conspiracy, but who happens to act in a way which advances some
object or purpose of a conspiracy, does not thereby become a conspirator.
Nos. 05-3295/3297/3344 United States v. Caver, et al. Page 19
1129, 1132 (6th Cir. 1993). If a defendant suffers no actual prejudice, however, reversal is not
required. United States v. Paulino, 935 F.2d 739, 748 (6th Cir. 1991), superceded by statute on other
grounds, U.S.S.G. § 3B1.1.
We need not decide whether the evidence at trial was such that the jury could have found
multiple conspiracies, however, because Defendant Caver cannot demonstrate prejudice. As in the
context of a variance, the primary risk associated with the failure to give a multiple conspiracy
instruction is the transference of guilt from defendants involved in one conspiracy to defendants in
another conspiracy, such that a defendant is convicted for a conspiracy for which he was not indicted.
Cf. United States v. Blackwell, 459 F.3d 739, 762 (6th Cir. 2006) (citing United States v. Mack, 837
F.2d 254, 258 (6th Cir.1988)).
As we found in our analysis of whether a variance existed, Defendant Caver cannot
demonstrate prejudice in this case. At most, the government’s evidence demonstrated two
conspiracies, the trial involved only three defendants and lasted only one week, and a significant part
of the evidence produced at trial supported a determination of guilt on the part of Defendant Caver.
See United States v. Fultz, Nos. 95-5722, 95-5723 & 95-5822, 1996 WL 273736, *2 (6th Cir. May
22, 1996) (unpublished disposition) (finding high risk of prejudice where “the great bulk of evidence
presented related to the activities of individuals other than defendants”). Moreover, the government’s
witnesses clearly demarcated their interactions with each individual defendant. In light of this
evidence, we cannot say that Defendant Caver was prejudiced by the district court’s failure to give
Defendant Caver’s proposed multiple conspiracy instruction.
2. Drug-quantity instruction
Defendants Caver and Cloud object to the district court’s instruction that “[a] defendant found
guilty of conspiracy is accountable for all quantities of drugs for which he was directly involved, and
all reasonably foreseeable quantities.”15 J.A. at 1916. Because Defendants failed to object to this
instruction at trial, we will reverse only for plain error. Thomas, 11 F.3d at 630. Jury instructions
do not rise to the level of plain error unless there is a “finding that, taken as a whole, the jury
instructions were so clearly erroneous as to likely produce a grave miscarriage of justice.” Newsom,
452 F.3d at 605.
Defendants argue that the jury was provided with no standards as to what constituted being
“directly involved” or what quantities of drugs were “reasonably foreseeable.” These arguments lack
merit. “Directly involved” and “reasonably foreseeable” are common sense terms, requiring no
elaboration. The district court’s instructions were not erroneous, and they certainly did not rise to
the level of plain error.
G. SENTENCING ISSUES
1. Eighth Amendment challenge
Defendant Caver argues that his sentence violates the Eighth Amendment because, according
to Defendant Caver, the imposition of a mandatory term of life without release constitutes cruel and
unusual punishment. We review a challenge to a sentence under the Eighth Amendment de novo.
The Eighth Amendment states that “[e]xcessive bail shall not be required, nor excessive fines
imposed, nor cruel and unusual punishments inflicted.” Section 841(b)(1)(A) of Title 21 of the
United States Code mandates a life sentence without release if a defendant who has two or more prior
felony drug convictions is guilty of violating § 841(a), and the crime involves fifty grams of crack
15
Defendant Cloud incorporates Defendant Caver’s argument by reference.
Nos. 05-3295/3297/3344 United States v. Caver, et al. Page 20
cocaine or more. Since Defendant Caver meets these qualifications, the district court applied the
statute and sentenced Defendant Caver to life in prison without release.
Defendant Caver’s Eighth Amendment claim is squarely foreclosed by this court’s decision
in United States v. Hill, 30 F.3d 48, 51 (6th Cir. 1994). There we held that defendant Hickey’s
mandatory sentence, which was life imprisonment without release pursuant to the same statute, was
constitutional. 16Defendant Caver cannot differentiate Hill. His Eighth Amendment challenge
therefore fails.
2. Review for reasonableness
Defendant Cloud contends that his thirty-year sentence, which falls at the bottom of the
applicable Guidelines range, is unreasonable. We review the sentence imposed by the district court
for reasonableness. United States v. Booker, 543 U.S. 220, 261 (2005). We note that a sentence
within the guidelines is presumptively reasonable, and the defendant bears the burden of rebutting
this presumption. United States v. Williams, 436 F.3d 706, 708 (6th Cir. 2006), petition for cert. filed,
(U.S. July 11, 2006) (No. 06-5275). In evaluating reasonableness, the focus of our inquiry is on the
factors set forth in 18 U.S.C. § 3553(a). Booker, 543 U.S. at 261 (“Section 3553(a) remains in effect,
and sets forth numerous factors that guide sentencing. Those factors in turn will guide appellate
courts, as they have in the past, in determining whether a sentence is unreasonable.”). The § 3553(a)
factors are:
(1) the nature and circumstances of the offense and the history and characteristics of
the defendant; (2) the need for the sentence to reflect the seriousness of the offense,
to promote respect for the law, and to provide just punishment for the offense; to
protect the public from further crimes of the defendant; and to provide the defendant
with needed educational or vocational training, medical care, or other correctional
treatment in the most effective manner; (3) the kinds of sentences available; (4) the
appropriate advisory guideline range; (5) any other pertinent policy statement issued
by the Sentencing Commission; (6) the need to avoid unwarranted sentence disparities
among defendants with similar records who have been found guilty of similar
conduct; and (7) the need to provide restitution to any victims of the offense.
United States v. Vonner, 452 F.3d 560, 565 (6th Cir. 2006), reh’g en banc granted, (Oct. 12, 2006)
(No. 05-5295) (quotation marks omitted) (quoting 18 U.S.C. § 3553(a)).
“[A] district court’s mandate is to impose ‘a sentence sufficient, but not greater than
necessary, to comply with the purposes’ of section 3553(a)(2).” United States v. Foreman, 436 F.3d
638, 644 n.1 (6th Cir. 2006). In order for a sentence to be reasonable, it must be both substantively
reasonable and procedurally reasonable. United State v. Collington, 461 F.3d 805, 808 (6th Cir.
2006). A sentence is procedurally unreasonable if “the district judge fails to ‘consider’ the applicable
Guidelines range or neglects to ‘consider’ the other factors listed in 18 U.S.C. § 3553(a), and instead
simply selects what the judge deems an appropriate sentence without such required consideration."
Id. (citing United States v. Webb, 403 F.3d 373, 383 (6th Cir. 2005), cert. denied, 126 S. Ct. 1110
(2006)). Additionally, the district court, in order to facilitate appellate review, must articulate its
reason for choosing a particular sentence, and it must specifically address any argument raised by the
defendant at sentencing. United States v. Richardson, 437 F.3d 550, 554 (6th Cir. 2006). A sentence
is “substantively” unreasonable if the district court “select[s] the sentence arbitrarily, bas[es] the
sentence on impermissible factors, fail[s] to consider pertinent § 3553(a) factors or giv[es] an
16
Defendant Cloud adopts this argument by reference, challenging the constitutionality of his thirty-year term
of incarceration. We reject Defendant Cloud’s argument, as the constitutionality of his thirty-year term follows a fortiori
from our holding that Defendant Caver’s life sentence is constitutional.
Nos. 05-3295/3297/3344 United States v. Caver, et al. Page 21
unreasonable amount of weight to any pertinent factor.” Collington, 461 F.3d at 808 (citing Webb,
403 F.3d at 305) (alternations in original).
Defendant Cloud makes three arguments in support of his claim that his sentence is
unreasonable. First, Defendant Cloud argues that the district court failed to properly articulate its
consideration of the § 3553(a) factors. Second, Defendant Cloud argues that the failure of the district
court to consider the disparity between the punishment for crack cocaine versus powder cocaine
renders his sentence unreasonable. Finally, Defendant Cloud argues that the fact that the jury
attributed a higher drug quantity to him than to Defendants Caver or Abdullah makes his sentence
unreasonable.17 We address each argument in turn.
A review of the record indicates that the district court gave a thorough explanation of its
reasons for selecting Defendant Cloud’s sentence. The court explained that Defendant Cloud was
a young man with a long criminal history. He had two juvenile convictions and six adult convictions,
four of which were felonies, and most of which were drug-related. Defendant Cloud was also
deemed a career offender, because he was released from prison, but “continued to engage in serious
criminal conduct.” J.A. at 2066-67. The district court found that Defendant Cloud was a high risk
to the community, that he had a potential for recidivism, and that the jury had found him more
culpable than Defendants Caver and Abdullah. The district court also noted the seriousness of the
charge. Nevertheless, the district court considered the high end of the Guidelines range
inappropriate, and instead sentenced Defendant Cloud to the bottom of the range, 360 months. The
district court found that “360 months is appropriate to meet the goals of punishment, deterrence, and
safety to the community.” J.A. at 2067. The court clearly considered the § 3553(a) factors. This
record indicates that Defendant Cloud’s sentence is reasonable.
Defendant Cloud’s second argument is that the 100:1 crack cocaine ratio–that is, the fact that
a given weight of crack cocaine (e.g., 500 grams of crack cocaine) carries the same Guidelines
sentencing level as 100 times that amount of powder cocaine (e.g., 50,000 grams of powder
cocaine)18–is no longer reasonable under Booker. Defendant Cloud points to nothing about the
particular facts of his case that make his sentence unreasonable; rather, he argues that, post-Booker,
the 100:1 ratio is per se unreasonable. We disagree. Defendant Cloud, in effect, asks this court to
not find his sentence unreasonable, as we are authorized to do by Booker, 543 U.S. at 261, but rather
to declare a portion of the Sentencing Guidelines unreasonable under all circumstances. Were we
to act upon Defendant Cloud’s suggestion, we would essentially be exercising legislative power.
Booker does not authorize this. See United States v. Wallace, 458 F.3d 606, 611 (7th Cir. 2006)
(“Only after computing the guidelines range using the correct 100:1 ratio does the district judge have
discretion to impose a sentence that is above or below that range . . . . [R]easonableness is something
that must be assessed at retail; wholesale conclusions that are nothing but disagreements with the
guidelines are impermissible.”). Thus, while a departure from the 100:1 ratio may well be reasonable
in a particular case, applying the ratio does not, ipso facto, make a sentence unreasonable under
existing case law. This is so even though we as a panel might disagree with the 100:1 ratio or the
rationale for it. Because Defendant Cloud has not demonstrated that the 100:1 ratio was unreasonable
in his case, his challenge to his sentence on this ground must fail.
Defendant Cloud’s final argument is that his sentence is unreasonable because the jury
attributed a higher quantity of drugs to him than to Defendants Caver or Abdullah. This argument
lacks merit. The simple answer is that the evidence presented at trial was not inconsistent with the
17
The jury concluded that the amount of drugs attributable to Defendants Abdullah and Caver under the
conspiracy charge was at least 500 grams of crack cocaine but less than 1.5 kilograms of crack cocaine; the jury found
greater than 1.5 kilograms of crack cocaine attributable to Defendant Cloud under the conspiracy charge.
18
See U.S.S.G. § 2D1.1.
Nos. 05-3295/3297/3344 United States v. Caver, et al. Page 22
jury’s verdict. A rational jury could have easily determined from the evidence at trial that the
quantity of drugs attributable to Defendant Cloud was greater than that attributable to Defendants
Caver or Abdullah. This court will not set aside a verdict supported by the evidence, which is what
Defendant Cloud is in effect asking us to do. Thus, the fact that the jury attributed more drugs to
Defendant Cloud does not provide a basis for finding Defendant Cloud’s sentence unreasonable.
H. INEFFECTIVE ASSISTANCE OF COUNSEL
Defendant Cloud argues that he was deprived of his Sixth Amendment right to effective
assistance of counsel. There is a preference for raising ineffective assistance of counsel claims on
collateral review under 28 U.S.C. § 2255. Massaro v. United States, 538 U.S. 500, 504-05 (2003).
Although there is a narrow exception where “trial counsel’s ineffectiveness is so apparent from the
record that appellate counsel will consider it advisable to raise the issue on direct appeal,” id. at 508,
we do not consider this to be one of those cases. Defendant Cloud points to six errors on appeal:
(1) the failure to object to Hall’s reference to Defendant Cloud’s house arrest; (2) the failure to object
to Morris’s improper statement; (3) the failure to object to the admission of the letters authored by
Defendant Cloud; (4) the failure to make “comprehensive objections at sentencing;” (5) the failure
to seek severance; and (6) the failure of trial counsel to object at sentencing. Because we believe that
the issues would benefit from further factual development, we decline to adjudicate them today. See
United States v. Bradley, 400 F.3d 459, 462 (6th Cir.), cert. denied, 126 S. Ct. 145 (2005).
CONCLUSION
For the foregoing reasons, we AFFIRM Defendants’ convictions and sentences.