United States v. Clarence Williamson, Jr. , 656 F. App'x 175 ( 2016 )

NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
File Name: 16a0461n.06
Case No. 15-1745
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
FILED
Aug 11, 2016
UNITED STATES OF AMERICA, ) DEBORAH S. HUNT, Clerk
)
Plaintiff-Appellee, )
) ON APPEAL FROM THE
v. ) UNITED STATES DISTRICT
) COURT FOR THE EASTERN
CLARENCE WILLIAMSON, JR., ) DISTRICT OF MICHIGAN
)
Defendant-Appellant. )
)
) OPINION
BEFORE: COLE, Chief Judge; BATCHELDER and COOK, Circuit Judges.
COLE, Chief Judge. For over a decade, Clarence Williamson headed a large cocaine and
marijuana distribution organization in the Detroit, Michigan area. A jury convicted him of three
counts: conspiracy to possess with intent to distribute and to distribute cocaine and marijuana,
conspiracy to launder money connected to drug trafficking, and conspiracy to possess a firearm
in furtherance of drug trafficking. He challenges those convictions on several grounds: first, that
he was subjected to double jeopardy in violation of the Fifth Amendment; second, that there was
insufficient evidence to convict him; third, that a police officer impermissibly offered lay opinion
testimony by interpreting recorded phone conversations for the jury; fourth, that the prosecutor
impermissibly vouched for the credibility of a witness. Finding no reversible error, we affirm.
Case No. 15-1745
United States v. Williamson
I. BACKGROUND
In 2000, Williamson and his friend, Anthony Edwards, began buying and selling cocaine
in the Detroit area—up to a kilogram a month. Dissatisfied with the quality and price of cocaine
they were receiving from the Detroit suppliers, the two agreed that they needed a new source.
Sometime around 2003, Williamson found a new supplier in California who went by the name of
“Sweet.”
Over the next several years, Williamson arranged to ship hundreds of kilograms of
cocaine from California to Detroit. The plan was simple: a few times a month, some of
Williamson’s associates would drive a car loaded with cash to California, exchange the cash for
several kilograms of cocaine, and then drive the car (now loaded with drugs) back to the Detroit
area. Once back in Detroit, Williamson delivered the cocaine to lower-level dealers who sold it
to users and remitted the proceeds back to him. Then, the process would start over: the cash
from those sales would be transported by car to California and traded for more cocaine.
Sometimes, Williamson would accompany the cash and drugs on these drives to
California and back. Other times, he flew to California and met the drivers there. If a problem
with the exchange occurred, Williamson intervened to address it. For example, when Kendrah
Smartt, one of Williamson’s frequent couriers, was arrested in Nebraska on her way back from
California with four kilograms of cocaine hidden in her car, Williamson gave her money for bail.
After several years of dealing cocaine, sometime around 2008 or 2009, Williamson also
began dealing marijuana. He organized a similar transportation scheme. Once or twice a month,
Williamson or his associates would drive a car loaded with cash to Arizona to meet with his
marijuana supplier, Daryl Sewell. They would trade the cash for marijuana—typically between
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80 and 100 pounds per trip—and then drive back to Detroit. Again, the cash from sales to users
would be used to buy more marijuana.
At least twice, police stumbled upon Williamson’s operation but did not pursue charges
against him. In January 2005, on the outbound leg of one trip, Williamson and several associates
were stopped in Oklahoma for erratic driving. The Oklahoma state troopers’ subsequent search
of the vehicle uncovered $1.5 million in cash and two loaded handguns hidden in secret
compartments. Williamson and the other occupants disclaimed ownership of the money and
guns, and were released. In October 2008, police in California caught Williamson in a “reverse
sting” operation where an informant had offered to sell eight kilograms of fictitious cocaine.
When the police arrived at the apartment where the deal was to have taken place, they found
Williamson and several associates standing at the door (appearing to have just left the
apartment), and a bag containing $150,000 in cash inside. Once again, Williamson was released.
Despite these setbacks, Williamson continued to prosper—at one point, he bragged to his
girlfriend that he was a millionaire. He began operating out of a warehouse on Glendale Street in
Detroit, nicknamed “The Factory.” Detroit police became aware of this facility around 2010,
and set up a “pole camera” so they could keep track of the operation in real time.
The camera led them to direct evidence of drug trafficking. In April 2010, the police
observed a pick-up truck arrive at The Factory, and Williamson’s son, Shaun Askew, load two
garbage bags into its bed. The driver, Jaami Townsend, abandoned the truck in a parking lot
when he noticed police following him. Williamson and Edwards picked up Townsend, and later
in the day, Townsend’s brother collected the abandoned truck. Police followed and eventually
stopped and searched the truck, finding the bags to contain about 45 pounds of marijuana.
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About five months later, the officers observed similar behavior at The Factory, with
Askew loading garbage bags into a van driven by Terrell Clark. Clark and Askew then drove
away from The Factory. A subsequent stop and search of the van revealed that the bags once
again contained marijuana.
The police also tapped cell phones owned by Edwards, Williamson’s original partner. In
January 2011, the police learned through wiretaps that Williamson had agreed to sell multiple
kilograms of cocaine to a buyer named Carl Jones. The police followed Williamson, Edwards,
and Jones around town the day of the deal, as Williamson gave the cocaine to Edwards, Edwards
gave it to Jones, Jones sold it to another man named Isaac Sheppard, and then Jones deposited
the money from the sale at Williamson’s sister’s house. Police tailed Sheppard as he drove away
from the sale. When they tried to stop him, he led them on a chase, during which he threw the
cocaine out of his car window. The police recovered that cocaine, and eventually arrested
Sheppard.
In September 2011, a federal grand jury indicted Williamson and seventeen other
individuals on charges related to operating a drug trafficking ring. Williamson retained an
attorney to defend him. Over two years later, less than a week before his trial was to begin,
Williamson asked to replace his current counsel, claiming there had been a breakdown in
communication. The district court granted his request but cautioned Williamson that further
delays would not be tolerated.
About six months after that, the day Williamson’s rescheduled trial was to begin,
Williamson once again asked for a new attorney, again claiming a breakdown in communication
and asserting he had retained different counsel who could be ready for trial in a few days. When
the district court found that Williamson’s assertion was false—he had not retained a new
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attorney, although he had contacted one who said he would need at least six months to prepare
for trial—the district court denied Williamson’s motion. Williamson refused to go forward with
his current attorney. The district court then ordered that Williamson would represent himself
with his current attorney acting as standby counsel.
Day one of the trial went forward as scheduled: a jury was selected and sworn, and the
court then recessed for the day. The next morning, Williamson, who was out on bond, did not
appear for court. Williamson’s sister informed the court that Williamson had been admitted to
the hospital that morning with chest pains. The judge stated that he was “of th[e] opinion” that
this hospitalization was consistent with Williamson’s past efforts to delay the case. The court
also expressed concern about the effect that a delay could have on Terrell Clark, Williamson’s
co-defendant (and nephew) who was to be tried jointly. Accordingly, the district court
announced it was considering revoking Williamson’s bond, declaring a mistrial, and severing
Clark’s trial from Williamson’s. However, before doing so the court took a recess to allow the
parties to gather more information about Williamson’s condition and to consider the legal
ramifications of the court’s suggested actions.
During the hour-long recess, the parties confirmed that Williamson was, in fact, in the
hospital, but could not obtain additional information. The prosecutor stated the government’s
position “that a mistrial is appropriate in this circumstance,” and asked “the Court to ensure that
the attorneys on Defense side agree with a mistrial and don’t have a problem with it.” Hearing
no objection from either Williamson’s standby counsel or Clark’s counsel, the district court
declared a mistrial. The district court also, at the request of the government, revoked
Williamson’s bond. Clark pleaded guilty a few months later.
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Williamson was ultimately hospitalized for a few days recovering from what doctors
diagnosed as a stroke. After his release from the hospital, Williamson was incapacitated and
housed in an inpatient psychiatric ward for several weeks due to lingering mental and physical
problems. These ongoing problems required a competency hearing before trial could go
forward. Represented by new counsel and eventually found competent to stand trial, Williamson
thereafter moved to dismiss the indictment on the grounds that the mistrial was improper and a
retrial would constitute double jeopardy. The district court denied the motion.
After a multi-week trial, a jury convicted Williamson of all three conspiracy charges.
The district court denied Williamson’s post-trial motions to set aside the verdict or for a new
trial. See Fed. R. Crim. P. 29, 33. This timely appeal followed.
II. ANALYSIS
A. Double Jeopardy
Williamson claims the district court improperly granted a mistrial, and therefore
subjected him to double jeopardy. “We review de novo a district court’s denial of a motion to
dismiss on grounds of double jeopardy.” United States v. Gantley, 172 F.3d 422, 427 (6th Cir.
1999). However, we review the district court’s underlying decision to grant a mistrial for abuse
of discretion. United States v. Cameron, 953 F.2d 240, 243 (6th Cir. 1992).
The Double Jeopardy clause of the Fifth Amendment protects a criminal defendant from
being tried twice for the same offense. United States v. Dinitz, 424 U.S. 600, 606 (1976). In a
jury trial, the right attaches from the moment the jury is sworn. Fulton v. Moore, 520 F.3d 522,
528 (6th Cir. 2008). However, if the district court declares a mistrial, the defendant may be
retried despite the right’s having attached. Dinitz, 424 U.S. at 606–07 (citing United States v.
Perez, 22 U.S. (9 Wheat.) 579, 580 (1824)). The district court may declare a mistrial either with
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the consent of the defendant or where “manifest necessity” existed. Id. at 607; see also Watkins
v. Kassulke, 90 F.3d 138, 141 (6th Cir. 1996). The government argues that both alternatives
were satisfied here, and therefore the double jeopardy bar does not apply.
1. Implied Consent
Neither Williamson nor his standby counsel explicitly consented to a mistrial. We may
imply the defendant’s consent to a mistrial based on his silence, but doing so is disfavored and
may only be done after “an especially careful examination of the totality of the circumstances”
that “positively indicate[] this silence was tantamount to consent.” Gantley, 172 F.3d at 428–29.
Here, the court raised the possibility of a mistrial, but granted a recess so the parties could
both confirm that Williamson was actually in the hospital and discuss the legal and strategic
implications of a mistrial. Of particular importance to the district court was the effect a mistrial
would have on Williamson’s co-defendant, Terrell Clark, who was to have been tried jointly.
The district court invited objection before granting the recess, and after returning from recess the
government—which supported the mistrial—asked the court to note any objections from defense
counsel before making its final ruling. Neither Clark, nor his counsel, nor Williamson’s standby
counsel objected to the mistrial, despite having had an opportunity to consider whether it should
be granted. This all supports a finding of implied consent. See id. at 429.
Williamson now argues that his standby counsel did not have authority to consent to the
mistrial on his behalf. Generally, consenting to a mistrial is a strategic decision that an attorney
can make without asking for the defendant’s input. Watkins, 90 F.3d at 143. But, by the district
court’s order, Williamson was representing himself at the time. It therefore seems doubtful,
under the circumstances, that standby counsel could consent to a mistrial, as his job was merely
to “aid the accused if and when the accused requests help, and to be available to represent the
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accused in the event that termination of the defendant’s self-representation is necessary.”
Faretta v. California, 422 U.S. 806, 834 n.46 (1975). Moreover, the district court did not
terminate Williamson’s self-representation when he failed to appear for trial. And Williamson’s
standby counsel explicitly disclaimed having had any instruction from or contact with
Williamson, and therefore stated before the recess that he had “no position” on whether a mistrial
should be granted. Thus, while the district court gave those present an adequate chance to
object, Williamson’s absence and his standby counsel’s apparent lack of authority to consent
lead us to find that there was no implied consent for the mistrial.
2. Manifest Necessity
Without the defendant’s consent, the mistrial was only permissible if “manifest
necessity” existed. See Dinitz, 424 U.S. at 607. “In determining whether a ‘manifest necessity’
exists, Courts need not find an absence of alternatives but only a ‘high degree’ of necessity.”
Klein v. Leis, 548 F.3d 425, 431 (6th Cir. 2008) (citing Ross v. Petro, 515 F.3d 653, 660–61 (6th
Cir. 2008)). We make this determination on a case by case basis in light of all the individual
facts and circumstances, while giving “considerable deference” to the trial court’s determination.
Johnson v. Karnes, 198 F.3d 589, 594–95 (6th Cir. 1999). The trial court is not required to make
an explicit, contemporary finding of manifest necessity, however, as long as the record provides
sufficient justification for the ruling. Arizona v. Washington, 434 U.S. 497, 516–17 (1978).
We have previously held that a trial court may permissibly declare a mistrial when new
circumstances require giving the defendant an extended continuance. For example, in Fulton v.
Moore, after the jury was impaneled and sworn, the prosecution became aware that the date
range alleged in the charging instrument was incorrect. 520 F.3d at 524. The trial court granted
the prosecution’s motion to amend the indictment, and declared a mistrial rather than granting an
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open-ended continuance to allow the defendant adequate time to prepare his case in light of the
changed indictment. Id. at 524–26. We found the record supported finding a high degree of
necessity for the mistrial. Id. at 531. We also found that the trial judge acted appropriately in
making his decision: he did not declare a mistrial abruptly, he implicitly considered a
continuance as an alternative remedy, and he allowed the parties to object. Id. at 530; see also
id. at 528 (discussing United States v. Jorn, 400 U.S. 470, 480–81 (1971)).
This case is similar. The district court here did not act abruptly: it raised the possibility
of a mistrial, and granted the parties an hour-long continuance to verify Williamson’s
whereabouts and discuss any legal and strategic issues. The court specifically requested input
from the parties, and after the government agreed that a mistrial was appropriate, it gave Clark’s
counsel and Williamson’s standby counsel an opportunity to object. The court also considered
alternatives, and declared a mistrial in an effort to ensure the efficient administration of justice in
this case. The district court expressed concern that Williamson had previously engaged in
dilatory tactics, thus suggesting that a mere continuance might not be a sufficient remedy if these
practices persisted. The court further expressed concern about the potential prejudicial effect of
a lengthy delay on Clark, Williamson’s co-defendant. The mistrial here merely “act[ed] as an
extended continuance” to accommodate the unexpected hospitalization of the defendant and
what was possibly an attempt to “sabotage the government’s case,” rather than being for some
impermissible purpose such as giving the government more time to strengthen its case. See
United States v. Stevens, 177 F.3d 579, 587–88 (6th Cir. 1999).
Finally, Williamson has not alleged any specific prejudice from the mistrial. See
Washington, 434 U.S. at 516 n.35. Almost four months passed after the hospitalization until
Williamson ultimately went to trial. While the district court could not have known that the delay
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would be this lengthy at the time it declared a mistrial, in hindsight such a long continuance
would not have been practicable. See Fulton, 520 F.3d at 530 (defendant could not show
prejudice because a continuance of six months was not a practicable alternative to declaring a
mistrial). The delay further allowed for new counsel to be appointed, just as Williamson had
requested before trial began, and obviating the need for Williamson to represent himself. Given
these circumstances, there is no evidence that Williamson was actually prejudiced in any way by
the delay.
B. Sufficiency of the Evidence
Williamson next challenges the sufficiency of the evidence as to all three of his
convictions. “We review sufficiency of the evidence challenges de novo to determine ‘whether,
after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact
could have found the essential elements of the crime beyond a reasonable doubt.’” United States
v. Mathis, 738 F.3d 719, 735 (6th Cir. 2013) (quoting Jackson v. Virginia, 443 U.S. 307, 319
(1979)). Williamson raised this issue in the district court through a Rule 29 motion for judgment
of acquittal, which the district court denied. We review the denial of the Rule 29 motion under
the same standard.1 Id. (citing United States v. Clay, 667 F.3d 689, 693 (6th Cir. 2012)). “In
making this determination, however, we may not reweigh the evidence, reevaluate the credibility
of witnesses, or substitute our judgment for that of the jury.” Id. (citing United States v.
Martinez, 430 F.3d 317, 330 (6th Cir. 2005)).
1
Williamson simultaneously moved for a new trial under Rule 33, which the district court also denied. We review
that ruling for abuse of discretion. United States v. Sypher, 684 F.3d 622, 626 (6th Cir. 2012). Because we find
Williamson’s convictions were supported by sufficient evidence, and nothing suggests they were against the great
weight of the evidence, there was no error in denying his motion for a new trial on that basis. See United States v.
Poandl, 612 F. App’x 356, 362–63 (6th Cir. 2015) (citing United States v. Ashworth, 836 F.2d 260, 266 (6th Cir.
1988)).
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1. Drug Trafficking Conspiracy
Williamson raises two distinct challenges related to the evidence used to convict him of
conspiracy to possess with intent to distribute and to distribute cocaine and marijuana. See
21 U.S.C. §§ 841(a), 846. First, that the evidence did not show a conspiracy, but simply a
number of “buy-sell” transactions. Second, that the evidence at trial impermissibly varied from
the indictment because it showed, at best, several smaller conspiracies.
“To sustain a conviction for conspiracy under 21 U.S.C. § 846, the government must
have proved: (1) an agreement to violate drug laws, in this case 21 U.S.C. § 841[(a)];
(2) knowledge and intent to join the conspiracy; and (3) participation in the conspiracy.” United
States v. Deitz, 577 F.3d 672, 677 (6th Cir. 2009) (quoting United States v. Martinez, 430 F.3d
317, 330 (6th Cir. 2005)) (alteration omitted). “Proof of a formal agreement is not necessary.”
Id. (quoting Martinez, 430 F.3d at 330) (alteration omitted). Instead, “[t]he existence of a
conspiracy may be inferred from circumstantial evidence that can reasonably be interpreted as
participation in the common plan.” Id. (quoting United States v. Salgado, 250 F.3d 438, 447 (6th
Cir. 2001)).
Here, there was more than sufficient evidence for the jury to have found that Williamson
was involved in a single conspiracy. We have previously noted that a mere casual sale of drugs
does not necessarily connect a buyer of drugs to a distribution conspiracy, because the sale does
not necessarily prove the existence of an agreement. See id. at 680–81; United States v.
Anderson, 89 F.3d 1306, 1310–11 (6th Cir. 1996). We consider several factors in determining
whether a particular sale is part of a larger drug conspiracy, including: “the length of the
relationship” between buyer and seller, “the established method of payment,” “the extent to
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which transactions are standardized,” and “the level of mutual trust between the buyer and the
seller.” Deitz, 577 F.3d at 680–81.
The frequency and size of the transactions here, as well as the relationships between the
co-conspirators, allowed the jury to infer a conspiracy beyond mere “buyer-seller” relationships.
This drug trafficking organization operated for over a decade. Williamson regularly sent large
amounts of cash—hundreds of thousands or even millions of dollars—to his suppliers in
California and Arizona. In return, Williamson received several kilograms of cocaine or
marijuana per shipment. At least some of the transactions were done on credit, where the drugs
would be fronted and the proceeds from downstream sales remitted as payment. All this
suggests a large, ongoing drug distribution conspiracy rather than a mere casual sale of drugs.
Williamson also objects that a “buy-sell” instruction was not given to the jury, but we
find that “the proposed jury instruction did not substantially impair [his] defense.” United States
v. Dado, 759 F.3d 550, 568 (6th Cir. 2014). The trial evidence showed Williamson was the head
of a substantial cocaine and marijuana distribution operation, not a casual buyer of the sort
envisioned by our buyer-seller jurisprudence. Given such evidence, “[t]he inclusion of the
buyer-seller jury instruction would not only have been unnecessary, but it likely would have
been confusing to the jury.” Id. at 569.
The evidence presented also does not show a fatal variance from the indictment.
“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.”
United States v. Caver, 470 F.3d 220, 235 (6th Cir. 2006). “In conspiracy cases, ‘a variance
constitutes reversible error only if the indictment alleged one conspiracy, but the evidence can
reasonably be construed only as supporting a finding of multiple conspiracies.’” United States v.
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Adams, 722 F.3d 788, 805–06 (6th Cir. 2013) (quoting Caver, 470 F.3d at 235–36) (alteration
omitted). In addition, the defendant must show that he was prejudiced by the variance. Caver,
470 F.3d at 235–36. Again, we review the evidence as to the number of conspiracies in the light
most favorable to the government, considering “the existence of a common goal, the nature of
the scheme, and the overlapping of the participants in various dealings.” United States v. Smith,
320 F.3d 647, 652 (6th Cir. 2003).
Williamson says there was no single overarching conspiracy in this case. Instead, he
argues that, at best, the evidence showed one conspiracy involving cocaine and a separate
conspiracy involving marijuana. However, several witnesses testified to assisting Williamson in
obtaining and distributing both marijuana and cocaine. Kendrah Smartt testified to taking cash
to California and bringing back cocaine, and taking cash to Arizona and bringing back
marijuana, all at Williamson’s direction. Anthony Edwards testified to regularly and repeatedly
helping Williamson obtain and distribute multiple kilograms of cocaine, and to knowing about
and assisting with marijuana transactions. The jury could reasonably infer that Williamson was
thus engaged in one large drug conspiracy, even if some of his associates worked solely on either
marijuana transactions or cocaine transactions. A single conspiracy is not converted to 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.” United States v. Beals, 698 F.3d 248, 259 (6th Cir. 2012)
(quoting United States v. Warner, 690 F.2d 545, 549 (6th Cir. 1982)).
Furthermore, Williamson has not shown how the claimed variance was to his prejudice.
Williamson’s counsel argued the existence of separate conspiracies to the jury, and examined
witnesses as to the overlap between Williamson’s marijuana and cocaine businesses. Thus,
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Williamson’s ability to defend himself at trial was not impaired. See United States v. Hynes,
467 F.3d 951, 965 (6th Cir. 2006).
2. Money Laundering Conspiracy
Obtaining a conviction on the charge of conspiracy to commit money laundering required
the government to prove beyond a reasonable doubt that Williamson knowingly entered into an
agreement or understanding with at least one other person to commit money laundering.
18 U.S.C. § 1956(h); Whitfield v. United States, 543 U.S. 209, 212–14 (2005). So-called
“promotional” money laundering—the type of money laundering at issue in this case—is defined
as knowingly conducting “a financial transaction which in fact involves the proceeds of specified
unlawful activity . . . with the intent to promote the carrying on of specified unlawful activity.”
18 U.S.C. § 1956(a)(1)(A)(i). Using the cash obtained from selling drugs to buy more drugs for
resale can constitute money laundering, as it uses the proceeds of drug trafficking to promote
further drug trafficking. United States v. Skinner, 690 F.3d 772, 782 (6th Cir. 2012) (citing
United States v. Santos, 553 U.S. 507, 525–26 & n.3 (2008) (Stevens, J., concurring); United
States v. Smith, 601 F.3d 530, 544 (6th Cir. 2010)); see also United States v. Warshak, 631 F.3d
266, 317 (6th Cir. 2010) (describing this type of transaction as “[t]he paradigmatic example” of
“promotional” money laundering).
That is exactly what the evidence showed in this case. Williamson received payment for
selling drugs, and then arranged to have couriers like Kendrah Smartt and Doris Houchins
deliver cash to his suppliers in California and Arizona so he could buy more drugs from them.
Williamson himself was intercepted by law enforcement in Oklahoma with $1.5 million hidden
in secret compartments in a van on his way to one such delivery. Given the large amounts of
money transported and other evidence about Williamson’s drug trafficking operation, the jury
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could have reasonably inferred that this cash came from past drug sales. Williamson also
extended cocaine on credit to one dealer—Gregory Jackson—who sold the drugs in
Pennsylvania and then remitted a portion of his receipts to Williamson as payment so he could
buy more drugs. The jury thus could have reasonably found that Williamson had at various
times been on both sides of financial transactions using proceeds from drug sales to buy more
drugs.
3. Firearm Conspiracy
Finally, Williamson challenges the sufficiency of the evidence used to convict him of
conspiracy to possess a firearm in furtherance of drug trafficking. See 18 U.S.C. § 924(c). To
prove this crime, the government must establish an agreement to possess a firearm, and a
“specific nexus between the gun and the crime charged,” United States v. Mackey, 265 F.3d 457,
462 (6th Cir. 2001), here conspiracy to possess with the intent to distribute and to distribute
cocaine and marijuana. It is not necessary that the gun be brandished or used during the
commission of a drug offense, but it must “advance, promote, or facilitate the crime.” United
States v. Street, 614 F.3d 228, 236 (6th Cir. 2010) (quoting United States v. Paige, 470 F.3d 603,
609 (6th Cir. 2006)). Merely possessing a gun on the same premises as a drug transaction does
not itself suffice unless the government can establish this nexus. United States v. Barnes,
822 F.3d 914, 919 (6th Cir. 2016) (citing Mackey, 265 F.3d at 462). However, “a jury can
reasonably infer that firearms which are strategically located so as ‘to provide defense or
deterrence in furtherance of the drug trafficking’ are used in furtherance of a drug trafficking
crime.” United States v. Couch, 367 F.3d 557, 561 (6th Cir. 2004).
Williamson was connected to several guns at trial. First, a search of the van Williamson
was driving when stopped in Oklahoma in January 2005 uncovered $1.5 million in cash and two
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loaded handguns hidden in a secret compartment. Williamson and the other occupants of the van
were transporting the cash to California where they intended to use it to purchase cocaine. Drug
dealers often carry guns to protect themselves and their drugs or cash, suggesting that the
firearms found in the van were made readily available for the purpose of facilitating the planned
drug purchase. See Street, 614 F.3d at 236.
A loaded revolver was found underneath a chair during a 2011 search of the “lounge”
area of The Factory—the warehouse that served as Williamson’s base of operations. The search
also uncovered a plastic bag containing ammunition and firearms magazines. The jury heard
considerable testimony about drug transactions that took place at The Factory, and drug
paraphernalia was found during the search—including scales and materials to wrap packages of
marijuana. Again, drug dealers are well known to keep guns in the locations where they sell
drugs to protect themselves and their operation. See Couch, 367 F.3d at 561 (guns found in
defendant’s garage, where his drug transactions were known to occur and where evidence of
drug dealing was uncovered, could support a conviction under 18 U.S.C. § 924(c)). And
Williamson was the only person with a key to The Factory.
Additionally, two cooperating witnesses testified to their own interactions with
Williamson when he possessed or planned to possess firearms to further his drug trafficking
operation. Doris Houchins, Williamson’s ex-girlfriend and occasional courier, recounted an
incident where Williamson found some counterfeit bills among a stack of cash he had received
from a lower-level dealer. Houchins described driving Williamson to his sister’s house, where
he picked up a handgun, before continuing on to the dealer’s house where Williamson
confronted the dealer. The jury also heard a recorded phone call in which Anthony Edwards told
Williamson that he had hidden a bag containing three or four guns in his garage. Williamson
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planned to pick up the guns from Edwards the next day, but before he could do so, another co-
conspirator, Dennis Tate, disposed of them. Either of these incidents alone could have allowed
the jury to reasonably infer that Williamson agreed with his co-conspirators to possess firearms,
and that they did so for the purpose of furthering their drug trafficking enterprise.
C. Lay Opinion Testimony
Williamson next argues that one witness—Dwayne Robinson, a Detroit police officer—
inappropriately provided lay opinion testimony by interpreting the meaning of recorded phone
calls between co-conspirators. Because Williamson did not object to this testimony, we review
its admission for plain error. United States v. Martin, 520 F.3d 656, 658 (6th Cir. 2008); Fed. R.
Crim. P. 52(b). Under the plain error standard, we may reverse if Williamson shows (1) there
was error, (2) that was plain, (3) that affected a substantial right, and (4) that substantially
affected the fairness or integrity of the judicial proceedings. Martin, 520 F.3d at 658; see also
United States v. Olano, 507 U.S. 725, 732 (1993).
Robinson was a Detroit police officer who was assigned to the FBI’s violent gang and
violent crime task force. Along with a DEA officer, Robinson was in charge of the Williamson
investigation. In that role, Robinson personally surveilled Williamson, which included
monitoring live footage from the pole camera outside The Factory, listening to wiretaps, and
following vehicles that departed The Factory. He also coordinated the activities (including
surveillance) of other law enforcement officers.
At trial, Robinson testified about the investigation’s surveillance activities. Part of that
testimony included establishing a foundation for the government to introduce video recordings
from the pole camera outside The Factory, and wiretaps from phone calls between Williamson
and his co-conspirators. A portion of Robinson’s testimony centered on the January 2011
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incident when Williamson and Edwards sold four kilograms of cocaine to Jones, who in turn sold
it to Sheppard, who was subsequently arrested following a car chase. The police had tapped
Edwards’s phone, and recorded him talking to Jones and Williamson both before and after the
transaction. Robinson testified as to the meaning of these calls—both interpreting certain
ambiguous phrases, and opining on the import of the calls.
Williamson says that Robinson’s twice-made statement during this testimony that he
listened to “over thousands of phone calls” during the course of the investigation was
impermissible since the jury only heard a small number of those calls. Williamson says this
statement implied that Robinson could better understand the content of the calls than the jury
could, even though most of the calls were in plain English. When Robinson then “interpreted”
the meaning or import of the calls, he usurped the fact-finding function of the jury, according to
Williamson.
Federal Rule of Evidence 701 allows non-experts to give “testimony in the form of an
opinion” only to the extent the testimony “is: (a) rationally based on the witness’s perception;
(b) helpful to clearly understanding the witness’s testimony or to determining a fact in issue; and
(c) not based on scientific, technical, or other specialized knowledge within the scope of
[Federal] Rule [of Evidence] 702.” “The function of lay opinion testimony is to ‘describe
something that the jurors could not otherwise experience for themselves by drawing upon the
witness’s sensory and experiential observations that were made as a first-hand witness to a
particular event.’” United States v. Kilpatrick, 798 F.3d 365, 379 (6th Cir. 2015) (quoting
United States v. Freeman, 730 F.3d 590, 595–96 (6th Cir. 2013)). “Courts often qualify law
enforcement officers as expert witnesses under Rule 702 to interpret intercepted conversations
that use ‘slang, street language, and the jargon of the illegal drug trade.’ In contrast, when an
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officer is not qualified as an expert, the officer’s lay opinion is admissible ‘only when the law
enforcement officer is a participant in the conversation, has personal knowledge of the facts
being related in the conversation, or observed the conversations as they occurred.’” Id. (quoting
United States v. Peoples, 250 F.3d 630, 641 (8th Cir. 2001)). The burden is on the proponent of
the testimony—here, the government—to show the testimony meets the foundational
requirements of Rule 701. Freeman, 730 F.3d at 595–96.
We have previously criticized law enforcement officers who offer lay opinion testimony
to interpret recorded calls for a jury. In United States v. Freeman, the government’s case agent
reviewed approximately 23,000 calls between and among various defendants, and based on that
review gave opinion testimony about the meaning of 77 calls introduced at trial. We determined
that when an agent “provides interpretations of recorded conversations based on his knowledge
of the entire investigation,” he might impermissibly testify “based upon information not before
the jury,” which can lead the jury to think the agent has important knowledge about the case that
they do not. Id. at 596 (quoting United States v. Hampton, 718 F.3d 978, 982–83 (D.C. Cir.
2013)). In Freeman, the agent’s testimony was based not on his own first-hand observations, but
rather on the collective knowledge obtained by officers throughout the course of the
investigation. Id. at 596. He never specified any personal experiences that could have formed
the basis for his opinion, instead relying on speculation and hearsay, and thus “lacked the first-
hand knowledge required to lay a sufficient foundation for his testimony under Rule 701(a).” Id.
at 597. Furthermore, we found it was not helpful to the jury (under Rule 701(b)) to speculate or
“spoon-fe[e]d his interpretations of the phone calls and the government’s theory of the case to
the jury.” Id. Jurors are competent to understand the meaning of recorded conversations that use
“ordinary language.” Id. at 597–98. In Freeman, the agent “merely t[old] the jury what result to
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reach.” Id. at 597 (quoting McGowan v. Cooper Indus., Inc., 863 F.2d 1266, 1272 (6th Cir.
1988)). “At that point, his testimony is no longer evidence but becomes argument.” Id. at 598.
Unlike Freeman, in this case Robinson was intimately involved in the investigation of
Williamson. Although he testified that he had listened to “over thousands of phone calls” and
often used the pronoun “we” when discussing the investigation, he made clear his active role in
the surveillance. He listened to many of the calls as they were happening, spent hours watching
the live feed from the pole camera, personally interacted with witnesses and informants, and
coordinated a team of law enforcement officers carrying out the investigation. He had the first-
hand knowledge necessary to give lay opinion testimony. See Kilpatrick, 798 F.3d at 381
(distinguishing Freeman for similar reasons).
Much of Robinson’s opinion testimony as to these calls constituted permissible
identifications—explaining to the jury whom the voices on the calls belonged to, and what the
investigation had revealed their roles in Williamson’s enterprise to be. See id. at 383–84.
Williamson has not contested the accuracy of these identifications or descriptions, and therefore
has failed to show how these statements were prejudicial even if there were some error in
admitting them. See id.
Other parts of Robinson’s testimony constituted permissible interpretations of ambiguous
phrases. For example, he explained that the phrase “four of them” in one conversation meant
four kilograms of cocaine, that “32,5” meant the price was $32,500 per kilogram, and that the
phrase “splitting the pros” in a subsequent conversation indicated an intent to split the profits
from the sale. Robinson explained that he knew this based on the context of the conversation
and his personal experience in the investigation, including through simultaneous surveillance of
the conspirators and listening to their other intercepted phone calls. Williamson had access to all
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these recorded phone calls, and was free to challenge the accuracy of Robinson’s interpretation
of these ambiguous phrases through cross-examination. See id. at 383.
However, other parts of Robinson’s testimony crossed the line into impermissible
territory. Several times, the prosecutor asked Robinson to explain “the importance” or “the
significance” of a particular phone call he had just played for the jury, which led to Robinson
giving narrative statements about the content of the conversation and what the conspirators
accomplished with it. For example, he interpreted one call to be Jones and Edwards arguing
about the price of the cocaine. The government does not argue that the jury could not have
determined this for itself once Robinson identified the speakers. Similarly, Robinson
summarized the content of calls between Edwards and Williamson occurring after Sheppard had
been arrested, even though the government has not asserted that there was any coded language in
them. In one long exchange after a short recess, Robinson summarized all of the calls that had
been played to the jury up to that point, including opining about who was supplying cocaine to
whom, and on what terms. That egregious “spoon-feeding” of the government’s theory of the
case to the jury is exactly what Freeman warns against.
But even if the admission of these portions of Robinson’s testimony was plain error, it
was not substantially prejudicial. Edwards testified after Robinson about the calls he had
participated in, and his explanations for the calls square with Robinson’s summaries.
Furthermore, the overwhelming amount of other evidence about this particular incident—the
contemporaneous video surveillance showing the movements of Williamson; the cocaine seized
from Sheppard; the testimony from co-conspirators and other police officers involved in the
arrest—conclusively tied Williamson to this particular cocaine deal, and to the drug trafficking
enterprise as a whole. See United States v. Miller, 738 F.3d 361, 373–74 (D.C. Cir. 2013). And
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even if this one cocaine deal were excised from the trial, there would still be more than enough
evidence of other drug trafficking, money laundering, and firearms possession to have convicted
Williamson on all the charges.
Furthermore, the district court also provided an appropriate limiting instruction,
cautioning the jury about Robinson’s dual role as fact and opinion witness. See Sixth Cir.
Pattern Crim. Jury Instructions 7.03A (2015). In the jury instructions, the court explained that
Robinson “testified to both fact and opinions,” that they “don’t have to accept [his] opinion” and
that they should evaluate his credibility for both the facts and opinions he testified to. The court
further instructed that the weight they would give his testimony “should consider [his]
qualifications and how he reached his conclusions.” Lack of such an instruction may require
reversal, e.g., United States v. Lopez-Medina, 461 F.3d 724, 743–45 (6th Cir. 2006), but giving
this cautionary instruction does not necessarily cure error in admitting the testimony in the first
place. Still, it diminishes the likelihood that the jury erroneously relied on Robinson’s lay
opinion testimony in reaching its verdict.
In sum, the admission of most of Robinson’s testimony about these phone calls was not
plainly erroneous. And to the extent his testimony was improper under Rule 701, it was not
substantially prejudicial and thus does not satisfy the plain error standard.
D. Improper Vouching
Finally, Williamson claims the prosecutor impermissibly vouched for the credibility of a
cooperating witness by asking questions about the provision of her plea agreement requiring
truthful testimony in exchange for a possible lower sentence. The witness, Kendrah Smartt,
testified to having been a courier for Williamson, taking cash to California and Arizona and
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bringing drugs back to Detroit from those states. After testifying about some of these trips
during direct examination, she and the prosecutor engaged in the following exchange:
Q: Now, let me ask you this. You signed a cooperation agreement and plead
guilty, right?
A: Yes.
Q: Now, under the cooperation agreement, is it your understanding that the
Government will let the Court know of your cooperation and testimony, right?
A: That’s my understanding.
Q: Right. Even though the Judge is right here, of course—
A: Exactly.
Q: —and sees you. And if you cooperate truthfully and testify truthfully, you
may get a lower sentence, correct?
A: Yes, I’m just here to tell the truth.
Q: Right. But you understand that it’s Judge O’Meara’s decision as to what your
sentence is?
A: Yes.
The written cooperation agreement was then admitted into evidence without objection.
A form of prosecutorial misconduct, “[i]mproper vouching occurs when a prosecutor
supports the credibility of a witness by indicating a personal belief in the witness’s credibility
thereby placing the prestige of the office of the United States Attorney behind that witness.”
United States v. Francis, 170 F.3d 546, 550 (6th Cir. 1999). If the prosecutor’s conduct was
improper, “we must determine whether the impropriety was sufficiently flagrant to warrant
reversal.” United States v. Reid, 625 F.3d 977, 982 (6th Cir. 2010). Because Williamson did not
object to the prosecutor’s questions, we review his claim of improper vouching for plain error.
United States v. Owens, 426 F.3d 800, 806 (6th Cir. 2005). Once again, reversal under this
standard requires Williamson to show (1) an error, (2) that is plain, (3) that affected a substantial
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right, and (4) that substantially affected the fairness or integrity of the judicial proceedings. Id.;
see Olano, 507 U.S. at 732.
It is not improper vouching to tell the jury that the plea agreement contains a truthfulness
provision and that the court will ultimately select the witness’s sentence after evaluating her
truthfulness. Reid, 625 F.3d at 983–84. However, a “potential for impropriety
emerges . . . when a prosecutor explains that there is to be a recommendation to the witness’s
sentencing court whether the terms of the plea agreement has been adhered to,” as it may imply
the prosecutor knows whether the witness is lying. Francis, 170 F.3d at 550.
Because the prosecutor’s questions here clearly are not sufficiently flagrant to warrant
reversal, we need not decide if they constituted impermissible vouching. We consider four
factors in assessing flagrancy: “(1) whether the remarks tended to mislead the jury or to
prejudice the accused; (2) whether the remarks were isolated or extensive; (3) whether the
remarks were deliberately or accidentally placed before the jury; (4) the strength of the evidence
against the accused.” United States v. Fullerton, 187 F.3d 587, 592 (6th Cir. 1999) (citing
United States v. Carroll, 26 F.3d 1280, 1384–85 (6th Cir. 1994)).
The contested questions did not mislead the jury or prejudice Williamson. The
prosecutor permissibly noted that the court would select Smartt’s sentence. Additionally, the
questions were isolated—the prosecutor did not mention Smartt’s plea agreement during his
opening or closing statements.2 Cf., e.g., United States v. Wells, 623 F.3d 332, 342–44 (6th Cir.
2010); Carroll, 26 F.3d at 1387–89. Furthermore, Smartt’s testimony was only a piece of the
extensive evidence against Williamson, including the testimony of several other co-conspirators,
recorded surveillance, and seized physical evidence. See Wells, 623 F.3d at 344; Owens,
2
Of note, however, defense counsel did refer to Smartt’s plea agreement during his closing argument, to impeach
her credibility by suggesting that the cooperation provision gave her an incentive to lie.
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426 F.3d at 808. Accordingly, even if the prosecutor’s statement constituted improper vouching,
and that is a debatable point at best, because it was not flagrant no plain error occurred.
III. CONCLUSION
For these reasons, we affirm Williamson’s convictions.
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