United States v. Deitz

RECOMMENDED FOR FULL-TEXT PUBLICATION
Pursuant to Sixth Circuit Rule 206
File Name: 09a0297p.06
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
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Plaintiff-Appellee, -
UNITED STATES OF AMERICA,
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No. 05-3410
v.
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Defendant-Appellant. -
REX A. DEITZ,
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Appeal from the United States District Court
for the Northern District of Ohio at Toledo.
No. 03-00739—David A. Katz, District Judge.
Argued: April 23, 2009
Decided and Filed: August 20, 2009
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Before: COLE and CLAY, Circuit Judges; CLELAND, District Judge.
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COUNSEL
ARGUED: Dennis C. Belli, Columbus, Ohio, for Appellant. Joseph R. Wilson,
ASSISTANT UNITED STATES ATTORNEY, Toledo, Ohio, for Appellee.
ON BRIEF: Dennis C. Belli, Columbus, Ohio, for Appellant. Joseph R. Wilson, Ava
M.R. Dustin, ASSISTANT UNITED STATES ATTORNEYS, Toledo, Ohio, for
Appellee.
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OPINION
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COLE, Circuit Judge. Defendant-Appellant Rex A. Deitz appeals his conviction
by a jury for conspiracy to possess and distribute more than 50 grams but less than 500
grams of methamphetamine under 21 U.S.C. §§ 841(a)(1), 841(b)(1)(B), and 846. He
*
The Honorable Robert H. Cleland, United States District Judge for the Eastern District of
Michigan, sitting by designation.
1
No. 05-3410 United States v. Deitz Page 2
also challenges his corresponding 144-month sentence. Deitz’s conviction and sentence
arise from his involvement with the Outlaw Motorcycle Club (“OMC” or “Outlaws”),
an international motorcycle club with chapters nationwide and abroad. Following a
large-scale investigation, Deitz and thirty-seven co-defendants were indicted for an
alleged widespread conspiracy involving violations of the Racketeer Influenced Corrupt
Practices Act (“RICO”), 18 U.S.C. § 1961, et seq., and various narcotics and firearms
laws. Deitz asserts that his conviction is not supported by sufficient evidence, numerous
other instances of trial error and prosecutorial misconduct violated his constitutional
rights, the district court’s decision to empanel an anonymous jury was an abuse of
discretion, and his 144-month sentence is unreasonable. For the following reasons, we
AFFIRM the judgment of conviction and sentence imposed by the district court.
I. BACKGROUND
A. History of the OMC and Deitz’s conviction
Since its founding outside of Chicago in 1935, the OMC has grown into an
international motorcycle club with over 1700 dues-paying members belonging to 176
chapters throughout the United States and twelve foreign countries. See United States
Department of Justice, About Violent Gangs, available at
http://www.usdoj.gov/criminal/gangunit/about/omgangs.html (last visited July 20, 2009).
The Outlaws are reputed to engage in a number of criminal activities, including arson,
assault, explosives, extortion, fraud, homicide, intimidation, kidnapping, money
laundering, prostitution, robbery, theft, and weapons violations. According to the United
States Department of Justice gang reports, the Outlaws have a history of secrecy and
violence, and are also well-known for retaliating against witnesses and informants. Id.In December 1997, the Toledo, Ohio office of the Federal Bureau of
Investigation (“FBI”) and state law enforcement agencies began investigating the “Green
region” of the Outlaws, which consists of OMC chapters in Dayton, Ohio; Fort Wayne,
Indiana; Louisville, Kentucky; Indianapolis, Indiana; and Oklahoma City, Oklahoma.
As a result of the FBI investigation, in April of 2003, a federal grand jury in the
No. 05-3410 United States v. Deitz Page 3
Northern District of Ohio returned a forty-count indictment charging thirty-eight
defendants with various offenses, including violations of RICO, drug trafficking, and
firearms offenses. Deitz, a former Outlaw from 1987 through 1994, was charged with
both the narcotics and firearms conspiracies.
The court tried the defendants charged with the RICO violations separately
(United States v. Wheeler, No. 3:03-cr-07739 (N.D. Ohio)), and at the close of the first
trial, the Government obtained a superseding indictment against thirteen defendants,
which set forth two separate counts. Count 1, the narcotics conspiracy charge, and
Count 2, the firearms conspiracy charge, were abbreviated versions of the drug and
firearms conspiracy counts in the original indictment. Deitz was once again charged
with both the narcotics conspiracy and the firearms conspiracy. Ten of the thirteen
defendants charged under the superseding indictment pleaded guilty, but Deitz, Steven
Warman, and Lloyd Heckman proceeded to trial together.
At trial, numerous government witnesses testified as to Deitz’s involvement in
the narcotics and firearms conspiracy, specifically describing incidents where Deitz sold
methamphetamine, marijuana, and other drugs, and noting Deitz’s participation in a
drive-by shooting of a rival motorcycle gang’s Indiana “clubhouse.” The government
also presented evidence of drugs seized from Deitz during 1991 and 1998 traffic stops
occurring in Louisville, Kentucky. In 1991, acting on a tip from a confidential informant
that Deitz would be transporting drugs from the Dayton clubhouse, officers stopped
Deitz while he was driving back from Dayton to Kentucky. A warranted search of
Deitz’s car revealed approximately 195 grams of cocaine in a bag on the floor of the
back seat. In 1998, police stopped Deitz at a Louisville, Kentucky roadblock. When
Deitz failed to provide proof of insurance, the officers’ search of his car turned up a
briefcase containing marijuana, methamphetamine, cocaine, and $2000 in cash.
In defending the charges set forth in the indictment, Deitz argued that he
withdrew from membership in the Outlaws in 1994, and that he has not attended club
meetings or events since then. He also testified that he has never manufactured
methamphetamine or sold drugs, and that because James “Frank” Wheeler, the
No. 05-3410 United States v. Deitz Page 4
international OMC president, prohibited methamphetamine sales in the Green region,
the government’s theory that Deitz was a prominent methamphetamine dealer within the
OMC narcotics conspiracy was unsupported.
On August 27, 2004, the jury returned a general verdict finding Deitz and
Warman guilty of Count 1 (the narcotics conspiracy); Heckman was acquitted of Count
1, and Deitz was acquitted of Count 2 (the firearms conspiracy). The jury also returned
a special verdict attributing more than 50 grams but less than 500 grams of
methamphetamine to Deitz. The district court sentenced Deitz to 144 months’
imprisonment and five years’ supervised release. Deitz now appeals.
II. ANALYSIS
A. There is sufficient evidence to uphold Deitz’s conviction for the narcotics
conspiracy
Deitz first challenges the sufficiency of the evidence to support his conviction
for the narcotics conspiracy. The relevant question on appeal is “‘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. Martinez, 430 F.3d 317, 330 (6th Cir. 2005) (quoting Jackson v. Virginia, 443
U.S. 307, 319 (1979)). “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.“[T]o 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;
(2) knowledge and intent to join the conspiracy; and (3) participation in the conspiracy.”
Martinez, 430 F.3d at 330 (citing United States v. Welch, 97 F.3d 142, 148-49 (6th Cir.
1996)). “[P]roof of a formal agreement is not necessary; a tacit or material
understanding among the parties will suffice.” Id. (internal citations omitted). “The
existence of a conspiracy ‘may be inferred from circumstantial evidence that can
reasonably be interpreted as participation in the common plan.’” United States v.
Salgado, 250 F.3d 438, 447 (6th Cir. 2001) (quoting United States v. Avery, 128 F.3d
No. 05-3410 United States v. Deitz Page 5
970, 971 (6th Cir. 1997)). Once a conspiracy is shown beyond a reasonable doubt, a
defendant’s connection to the conspiracy, “need only be slight, and the government is
only required to prove that the defendant was a party to the general conspiratorial
agreement.” Id.“A conspiracy requires: ‘(1) An object to be accomplished. (2) A plan or scheme
embodying 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)).
Drug distribution conspiracies are often “chain” conspiracies such that
agreement can be inferred from the interdependence of the enterprise.
One can assume that 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.
United States v. Henley, 360 F.3d 509, 513 (6th Cir. 2004) (quoting United States v.
Spearman, 186 F.3d 743, 746 (6th Cir. 1999)). We also have noted that the government
must “show the willful membership of [a] defendant in the conspiracy, but the
government need not prove that the defendant committed an overt act in furtherance of
the conspiracy.” United States v. Gardner, 488 F.3d 700, 711 (6th Cir. 2007).
Deitz contends that his conviction for conspiracy is not supported by sufficient
evidence because: (1) the government failed to prove that his alleged possession of
cocaine in 1991 constituted an overt act in furtherance of the conspiracy; (2) the
government failed to prove that his methamphetamine sales to Jerry Bloor, a confidential
informant, and his marijuana transactions with Danny “Tubby” Garland, an Indianapolis
chapter Outlaw, occurred within the scope of the conspiracy; (3) his 1998 drug
possession and his 1999 offer to sell drugs to James Dilts, a confidential informant,
involved single-participant acts that were not connected to the charged conspiracy; and
(4) Bloor’s testimony does not support the special verdict as to drug quantity. We
consider each of Deitz’s arguments in turn.
No. 05-3410 United States v. Deitz Page 6
1. Deitz’s possession of cocaine in 1991 was properly considered as part
of the OMC narcotics conspiracy
On March 20, 1991, FBI agents acting on a tip from a confidential informant
followed Deitz while he drove from Louisville, Kentucky to Dayton, Ohio and back. At
trial, Deitz testified that he had borrowed another Outlaw’s car to give a friend a ride to
Falmouth, Kentucky to visit his sick father, and that after dropping his friend off he
continued on to Dayton to visit friends and speak with an individual about painting his
motorcycle. Law enforcement stopped Deitz as he drove back into Kentucky, and a
search of his car revealed approximately 195 grams of cocaine in a bag on the floor of
the back seat. Deitz was charged in a Kentucky state court with possession of and
trafficking in drugs. A jury acquitted Deitz of those charges.
Deitz claims that his possession of cocaine in 1991 is not an overt act in
furtherance of the conspiracy, and, as such, it does not support his conviction. Deitz also
contends that acts prior to the commencement of the conspiracy are irrelevant, and that
“[t]wo cooperating witnesses (as well as the overt acts listed in the indictment) indicate
that the conspiracy began in the Indianapolis chapter during the 1994-1995 time period.”
(Deitz Br. 19-20) (emphasis added).
As a threshold matter, given that the government “need not prove that the
defendant committed an overt act in furtherance of the conspiracy,” Deitz’s argument
that his possession of cocaine in 1991 was not an overt act proving his participation in
the underlying conspiracy is irrelevant. Gardner, 488 F.3d at 711; see also United States
v. Layne, 192 F.3d 556, 567 (6th Cir. 1999). If the government can prove conduct, in
any form, which is relevant to prove the conspiracy, that constitutes sufficient evidence
under the statute. See Gardner, 488 F.3d at 711.
Regardless, Deitz’s claim that the conspiracy did not begin until 1994 is belied
by the record, and there is ample evidence for a reasonable jury to conclude that the
1991 cocaine seizure was part of Deitz’s “willful membership” in the OMC narcotics
conspiracy. For instance, at the time of the seizure, Deitz was a known Outlaw, and an
informant told FBI agents that in late March, 1991, Deitz would be traveling to Dayton
No. 05-3410 United States v. Deitz Page 7
to obtain drugs. Deitz did travel from Louisville to Dayton, and on his return, law
enforcement stopped him and found the aforementioned cocaine in his possession, in an
amount suggesting that the drugs were intended for distribution. See United States v.
Nelson, 238 F. App’x 65, 72 (6th Cir. 2007) (finding that amount of narcotics found was
evidence that defendant intended to distribute the drugs). A complex conspiracy such
as the one at issue here cannot develop “out of thin air.” Because the conspiracy alleged
in the indictment involved the Outlaws’ transport of drugs between various Green region
clubhouses—the same conduct that led to Deitz’s 1991 traffic stop—the stop was
properly offered as evidence of Deitz’s willful participation in the conspiracy, and
Deitz’s first argument fails.
2. Deitz’s methamphetamine and marijuana sales occurred in the scope of
the conspiracy
Deitz next asserts that his alleged sales of methamphetamine and marijuana to
Bloor and Garland did not occur within the scope of the conspiracy. He argues that if
such sales had occurred, they would not have furthered the underlying OMC narcotics
conspiracy because Wheeler and other Outlaws had specifically excluded him from
participating in that conspiracy.
At trial, government informant Catherine Solgot, Garland’s ex-girlfriend,
testified that she lived with Garland in Indianapolis for approximately three years,
beginning in October 1997. Solgot testified that during that period, she witnessed
Garland conduct numerous drug transactions (mostly involving marijuana, cocaine, and
pills) with other Outlaws, including Deitz, and that she sold drugs for Garland. Solgot
testified that beginning in 2000, Garland and Deitz regularly conducted transactions of
approximately five-to-ten pound amounts of marijuana. Solgot explained that when
Garland sold marijuana to Deitz, she would travel with Garland to Columbus, Ohio,
where he would give Deitz drugs provided by Wheeler or other Outlaws, though she was
unsure if Deitz paid for the drugs upon receipt or later. On other occasions, Deitz would
deliver five-to-ten-pound amounts of marijuana to Garland’s home in Indianapolis; and
No. 05-3410 United States v. Deitz Page 8
at times when Garland was not home, Solgot would pay Deitz for the drugs and store
them in a back room.
James Dilts, an Outlaw in the Dayton chapter and an FBI informant from 1998
through 2000, testified that Deitz was known as a source of methamphetamine in the
Green region. At trial, Dilts explained that when he traveled to the Louisville clubhouse
in 1999 and asked the chapter president, Jerry Kinser, where he could purchase
methamphetamine, Kinser introduced him to Deitz and identified him as a
methamphetamine source. Dilts testified that when he met Deitz at a local bar, Deitz
told him that he had a connection to obtain the ingredients used to make
methamphetamine and that he would sell Dilts methamphetamine at a party later that
week. Dilts also testified that Kinser warned him that although Deitz was an Outlaw,
Dilts should be careful because he had heard Deitz might be facing indictment for selling
cocaine to an undercover FBI or DEA agent. Bloor likewise testified that he purchased
methamphetamine from Deitz multiple times, both for personal use and for resale to
other Outlaws.
Deitz relies heavily on our decision in Gibbs in arguing that his sales of drugs did
not occur within the scope of the narcotics conspiracy. 182 F.3d at 408. In Gibbs, a
loosely associated group of drug dealers in Columbus, Ohio were charged with a
conspiracy to control the distribution of cocaine in a local area by excluding non-local
drug dealers. Id. There, we vacated several of the defendants’ convictions, explaining
that although the government successfully proved that the defendants sold drugs in the
area during the relevant time period, there was no evidence that they had agreed to
participate in the charged conspiracy to “exclude outsiders.” Id. at 423.
The allegations against Deitz are distinguishable from those at issue in Gibbs
because Deitz has not identified any aspects of the charged conspiracy for which the jury
could not have inferred his involvement. The indictment and superseding indictment in
this case alleged a conspiracy to distribute and possess with intent to distribute a wide
range of drugs “through [defendants’] membership in and participation in the [OMC].”
(Joint Appendix (“JA”) 305, 369.) The “Means and Methods” and “Manner and Means”
No. 05-3410 United States v. Deitz Page 9
sections of both indictments detail the individual leadership roles of certain defendants
and set forth the names of the individuals who, as members and associates of the OMC,
allegedly distributed these controlled substances. Moreover, the evidence demonstrates
that the indicted individuals, including Deitz, used their affiliation with the OMC to
distribute drugs. For instance, Outlaw status was difficult to attain and maintain, the
club had regular meetings and required members to pay significant dues, members
occasionally attended meetings regarding international issues, and members’ mutual
trust was enforced by a club policy of violence against “snitches.” In contrast to Gibbs,
the evidence presented against Deitz demonstrates that Deitz “had knowledge of the
agreement” that the OMC intended to use its organizational structure and contacts to
facilitate the sale of drugs, and that he had “acquiesced in that agreement.” 182 F.3d at
422. Therefore, a reasonable jury could have found that Deitz’s methamphetamine and
marijuana sales occurred in furtherance of the conspiracy.
3. Deitz’s drug sales were not merely buyer-seller transactions
Deitz also argues that the testimony of Bloor, Dilts, and Solgot regarding his
various drug transactions during the 1990s described isolated buyer-seller transactions
that did not further the underlying conspiracy. The record tells a different story.
“Generally, a buyer-seller relationship alone is insufficient to tie a buyer to a
conspiracy because ‘mere sales do not prove the existence of the agreement that must
exist for there to be a conspiracy.’” United States v. Cole, 59 F. App’x 696, 699 (6th Cir.
2003). “Nonetheless, [we] have often upheld conspiracy convictions where there was
additional evidence, beyond the mere purchase or sale, from which the knowledge of the
conspiracy could be inferred.” Id.; see also United States v. Nesbitt, 90 F.3d 164, 167
(6th Cir. 1996) (concluding that evidence of advanced planning and multiple transactions
involving large quantities of drugs may show that the defendant was involved in the
conspiracy and was not merely engaged in a buyer-seller relationship); United States v.
Anderson, 89 F.3d 1306, 1310 (6th Cir. 1996) (holding that repeat purchases, purchases
of large quantities, or other enduring arrangements, are sufficient to support a conspiracy
conviction). We have cited with approval the Seventh Circuit’s construct, which
No. 05-3410 United States v. Deitz Page 10
considers a list of factors to determine whether a drug sale is part of a larger drug
conspiracy. Cole, 59 F. App’x at 700 (citing United States v. Rivera, 273 F.3d 751, 755
(7th Cir. 2001)). These factors include: (1) the length of the relationship; (2) the
established method of payment; (3) the extent to which transactions are standardized;
and (4) the level of mutual trust between the buyer and the seller. Id. (citing Rivera, 273
F.3d at 755).
A reasonable jury could infer from the testimony of Bloor and Solgot that Deitz’s
drug transactions during the 1990s were part of the OMC narcotics conspiracy. The
evidence shows that Deitz routinely engaged in narcotics distribution activities with
fellow Outlaws—both buying from, and selling to, them. For instance, Bloor testified
that he purchased methamphetamine from Deitz many times, which he would use
himself, sell, or give to other Outlaws to enable them to “stay awake” while transporting
drugs. Deitz contends that Bloor was not credible because of his history of drug use and
mental instability, however, “on appeal, there is no place . . . for arguments regarding
a government witness’s lack of credibility . . . .” United States v. Talley, 164 F.3d 989,
997 (6th Cir. 1999) (internal citations omitted). Solgot’s testimony provides additional
support for the jury’s finding that Deitz was involved in the underlying conspiracy.
Solgot testified that Garland engaged in approximately ten marijuana sales with Deitz
beginning in 2000, and that the marijuana Garland sold to Deitz originated from Wheeler
and other high-level Outlaws. Also, Solgot’s testimony that she occasionally accepted
marijuana from Deitz on Garland’s behalf demonstrates that Deitz trusted both Solgot
and Garland through their established dealings with one another. Taken together, these
frequent transactions between Deitz, an Outlaw until 1994, and various other Outlaws,
were sufficient to allow a reasonable jury to conclude that Deitz participated in the OMC
narcotics conspiracy.
Finally, Deitz asserts that his alleged transactions with Dilts were not part of the
conspiracy because Dilts, an informant from 1998 through 2000, could not “conspire”
with Deitz. While it is true that Dilts’s status as a government agent prevents the
government from proving the existence of a conspiracy solely between Dilts and Deitz,
No. 05-3410 United States v. Deitz Page 11
the transactions and conversations between the two men can properly be considered as
evidence of a conspiracy existing among Deitz and other Outlaws. See, e.g., United
States v. Keeler, 285 F. App’x 262, 266 n.1 (6th Cir. 2008) (explaining that defendant’s
drug-related conversations with government agent could not be used to prove the
existence of a conspiracy between the defendant and the agent, but could be considered
as evidence of a conspiracy between defendant and others); see also United States v.
Hayden, 68 F. App’x 530, 532 (6th Cir. 2003) (“The rule that government agents do not
count as coconspirators, however, is limited to situations in which the conspiracy
involves only one defendant and a government informer.”).
Regardless, Deitz’s argument assumes that proof of drug sales is necessary to
establish an agreement to distribute drugs when all that is required is evidence of “a tacit
or material understanding among the parties.” Henley, 360 F.3d at 513; see also
Hayden, 68 F. App’x at 532 (noting that “[i]t is sufficient in a ‘drug-chain conspiracy’
to show that each member of the conspiracy realized that he was participating in a joint
venture”). This threshold is certainly met here. Dilts’s testimony establishes Deitz’s
continuing membership in and association with the OMC. Dilts testified that in July
1999, when he asked about purchasing methamphetamine, Kinser introduced him to
Deitz, who sought to arrange a deal. Dilts also testified that Kinser advised him not to
buy drugs from Deitz because, despite the fact that Deitz was in good standing with the
Outlaws and was a known methamphetamine source, he would likely be indicted for
selling drugs to an undercover agent. From this testimony, a jury could reasonably infer
that Deitz regularly engaged in methamphetamine sales to Outlaws and Kinser had
identified Dilts as a trusted club member, supporting a conclusion that Deitz’s drug
transactions were part of the OMC narcotics conspiracy.
4. The jury’s special verdict regarding drug quantity was proper
The jury’s special verdict attributed 50 or more grams of a mixture or substance
containing methamphetamine to Deitz. The verdict was based on a combination of the
amount 9.5 grams of methamphetamine seized from Deitz following the 1998 Kentucky
traffic stop, Dilts’s testimony that Deitz offered to sell him 14.17 grams of
No. 05-3410 United States v. Deitz Page 12
methamphetamine, and Bloor’s estimate that he had bought at least 56.58 grams of
methamphetamine from Deitz. Deitz argues that there is insufficient evidence to support
the jury’s special verdict because: (1) the alleged methamphetamine transactions were
outside the scope of the conspiracy; (2) Bloor’s testimony was inadequate to prove
circumstantially that the substance contained methamphetamine; and (3) Bloor’s
estimate of drug quantity was unreliable. We reject each of Deitz’s arguments.
First, as we have explained, a reasonable jury could infer from Bloor’s and
Solgot’s testimony that Deitz’s frequent drug transactions during the 1990s, and the
1998 Kentucky traffic stop where Deitz was found to possess marijuana (114 grams),
methamphetamine (9.5 grams), and cocaine (6.4 grams), were part of the underlying
conspiracy. Thus, the jury was entitled to consider the evidence of Deitz’s
methamphetamine transactions with Bloor. Moreover, we find meritless Deitz’s
arguments that Bloor’s testimony was inadequate and unreliable because Bloor “did not
describe the appearance of the substance and did not indicate the name by which Deitz
referred to it,” or state the price he allegedly paid. The case on which Deitz relies,
United States v. Robison, 904 F.2d 365, 371-72 (6th Cir. 1990), is easily distinguishable
because it involved an improper drug-quantity calculation by a district court during
sentencing rather than a special verdict by the jury. Further, Deitz’s argument asks us
to substitute our own evaluation for the jury’s conclusion about the weight of the
evidence and witness credibility, which we may not do. See Talley, 164 F.3d at 996.
5. Conclusion
For the foregoing reasons, we cannot say that, the jury acted irrationally in
finding that Deitz committed all the elements of the OMC narcotics conspiracy. Thus,
the evidence presented at trial was sufficient to sustain Deitz’s conviction.
No. 05-3410 United States v. Deitz Page 13
B. The admission of testimony by FBI Agent David Potts did not violate Deitz’s
rights under the Confrontation Clause
Deitz also argues that the admission of certain testimony by FBI agent David
Potts about why authorities followed Deitz on his drive to and from Dayton violated his
rights under the Confrontation Clause. Deitz argues that Agent Potts’s testimony that
the FBI was surveilling Deitz, because it had received tips from informants that Outlaws
from the Louisville chapter regularly obtained cocaine from members of the Dayton
chapter and transported it back to Kentucky, was inadmissible because it was based on
hearsay relayed to Agent Potts by a confidential informant.
The Confrontation Clause of the Sixth Amendment bars the “admission of
testimonial statements of a witness who did not appear at trial unless he was unavailable
to testify, and the defendant had a prior opportunity for cross-examination.” Crawford
v. Washington, 541 U.S. 36, 53-54 (2004). Generally, we review alleged violations of
the Confrontation Clause de novo. United States v. Robinson, 389 F.3d 582, 592 (6th
Cir. 2004). If, however, a defendant fails to object to an error at trial, plain-error review
applies. United States v. Powers, 500 F.3d 500, 505 (6th Cir. 2007). Although defense
counsel objected to certain testimony by Agent Potts at trial, the objection pertained
only to Agent Potts’s testimony regarding what he heard over the radio while he was on
break, and did not relate to his earlier testimony about why authorities were following
and surveilling Deitz on his trip to Dayton. (See JA 515 (defense counsel’s objection to
Agent Potts’s testimony).) Therefore, we review Deitz’s Confrontation Clause argument
for plain error. See United States v. Cromer, 389 F.3d 662, 672 (6th Cir. 2004). In
conducting plain-error review, we reverse only when the following four prongs are met:
(1) there must be an error or defect that the appellant has not
affirmatively waived; (2) it must be clear or obvious; (3) it must have
affected the appellant’s substantial rights, i.e., affected the outcome of
the district court proceedings; and (4) if the three other prongs are
satisfied, the court of appeals has the discretion to remedy the error if it
seriously affect[s] the fairness, integrity, or public reputation of judicial
proceedings.
See Puckett v. United States, 129 S. Ct. 1423, 1425 (2009) (internal citations omitted).
No. 05-3410 United States v. Deitz Page 14
To trigger a violation of the Confrontation Clause, an admitted statement must
be testimonial in nature, and must be hearsay—that is, 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.” Gibbs, 506 F.3d at 486 (citing Fed. R. Evid. 801(c)). We
have held that statements by a confidential informant are “testimonial” and thus, subject
to the Confrontation Clause. Cromer, 389 F.3d at 675-76. However, we have also
clarified that “[t]he Confrontation Clause ‘does not bar the use of testimonial statements
for purposes other than establishing the truth of the matter asserted.’” Id. at 676 (quoting
Crawford, 541 U.S. at 59 n.9).
Therefore, although the fact that the declarant was a confidential informant
makes his statements testimonial, we must also consider whether the statements were
offered to establish the truth of the matter asserted. In Cromer, the evidence at issue was
a police officer’s testimony that a confidential informant, not called as a witness at trial,
indicated that drug sales had been made from a particular residence and that an
individual resembling the defendant had been involved in the drug transactions. See 389
F.3d at 673-74. There, we held the officer’s testimony admissible to the extent that it
merely “alluded to” the confidential informant’s statements for the background purposes
of “explaining how certain events came to pass or why the officers took the actions they
did” in searching the residence identified by the informant. 389 F.3d at 676. On the
other hand, we found that testimony by the informant that “could only have been
[offered] to help establish” an element of the prosecution’s case was inadmissible. Id.;
see also Gibbs, 506 F.3d at 486-87 (finding no Crawford violation because the
challenged testimony “[d]id not bear on” any element of the charges against defendant,
and “a review of the record reveals that [the purportedly hearsay aspect of the testimony]
was a miniscule part of [the witness’s] overall testimony”).
The admission of Agent Potts’s testimony explaining why authorities were
following Deitz on his drive to and from Dayton was not plain error as it provided mere
background information, not facts going to the “very heart of the prosecutor’s case.” See
Cromer, 389 F.3d at 667-78. In fact, it was not the informant’s statements that were
No. 05-3410 United States v. Deitz Page 15
material, but rather, Potts’s own statement about what he found when he stopped Deitz,
which was not hearsay. Moreover, had defense counsel objected to the testimony at
trial, the court could have easily restricted its scope. United States v. Hunt, 278 F. App’x
491, 495 (6th Cir. 2008) (noting that court limited the scope of government witnesses’s
testimony to ensure that the tip was mentioned strictly for background information).
Therefore, Deitz’s Confrontation Clause claim is without merit.
C. The district court’s decision to empanel an anonymous jury did not violate
Deitz’s Sixth Amendment right to a fair trial
The district court granted the government’s motion to empanel an anonymous
jury in Deitz’s trial, adopting the reasoning that led it to grant the government’s first
request in the trial of the RICO defendants, where it explained:
The indictment in this case alleges numerous acts of violence and
obstruction of justice. The government’s memorandum sets forth a litany
of activities of the “Green” region of the OMC which amply justify the
conclusion that an anonymous jury is necessary . . . . Of extreme
importance in the Court’s consideration of the issues is the statement
made at the pretrial conference held December 31, 2003. Assistant U.S.
Attorney Joseph Wilson, speaking at the beginning of the pretrial when
all counsel for defendants were in attendance (which portion of the
conference was held in camera), reported as follows:
In December 2003, the FBI received information from a
confidential informant that certain defendants in this case
were contracting to arrange the murders of witnesses,
court officers and prosecutors. This information was
corroborated by subsequent investigation by the FBI.
The investigation into these threats is ongoing.
That statement demonstrates the “propensity” of the defendants, or at
least some of them and/or the OMC itself, to go to extremes in
intimidation, which intimidation cannot be permitted to be directed at
jurors. The fear of such actions, based upon reliable information
provided to the FBI and confirmed by investigation, would in itself
justify the Court granting the government’s motion.
(United States v. Wheeler (Doc. No. 783), JA 1209-12.) The district court also noted
that other courts had previously recognized the OMC’s history of violence and jury
No. 05-3410 United States v. Deitz Page 16
tampering. (JA 1210 (citing United States v. Bowman, 302 F.3d 1228 (11th Cir. 2002)
(upholding empaneling of anonymous jury in trial of Harry Bowman, the former
international president of the OMC)).)
A district court may empanel an anonymous jury in any case in which the
interests of justice so require, 28 U.S.C. § 1863(b)(7), and the decision “is within the
sound discretion of the trial court.” United States v. Lawson, 535 F.3d 434, 439 (6th Cir.
2008) (affirming conviction and sentence in appeal by RICO defendant in United States
v. Wheeler) (quoting Talley, 164 F.3d at 1001). In Talley, we upheld the district court’s
decision to empanel an anonymous jury where evidence showed that the defendant had
previously manipulated the justice system and threatened to kill a witness. 164 F.3d at
1001-02. We explained that:
The anonymity of the jury should be preserved in cases: (1) with very
dangerous persons who were participants in large scale organized crime,
and who participated in mob-style killings and had previously attempted
to interfere with the judicial process; (2) where defendants have had a
history of attempted jury tampering and serious criminal records; or
(3) where there have been allegations of dangerous and unscrupulous
conduct by the defendant, coupled with extensive pretrial publicity . . .
In deciding to empanel an anonymous jury, the court must ensure that the
defendant retains his or her right to an unbiased jury by conducting “a
voir dire designed to uncover bias as to issues in the cases and as to the
defendant himself,” and by providing the jury a neutral and non-
prejudicial reason for requiring that it be anonymous, so that jurors will
refrain from inferring that anonymity was necessary due to the character
of the defendant.
Talley, 164 F.3d at 1001-02.
Deitz argues that the district court’s decision to empanel an anonymous jury over
defendants’ objections was an abuse of discretion that warrants the reversal of his
conviction. We disagree. The record supports the district court’s conclusion that
anonymity was appropriate as a safety precaution and to avoid interference with the
jury’s ability to function. First, the record provides extensive evidence that Deitz,
Warman, and Heckman were members of, or closely associated with, the OMC, an
organization with a long history of crime and violence. See Talley, 164 F.3d at 1001-02;
No. 05-3410 United States v. Deitz Page 17
see also United States v. Doe, 63 F.3d 121, 130 (2d Cir. 1995) (“The problem of
retaliatory acts against those producing adverse testimony is especially acute in the
context of criminal organizations . . . .”). Second, the government presented testimony
from a prison informant who overheard Warman discussing plans to harm the
prosecutors and the presiding judge in his case. Talley, 164 F.3d at 1001-02. Third, the
defendants faced lengthy sentences upon conviction, increasing the likelihood that they
would resort to extreme measures to influence the outcome of their trials. See id.; see
also United States v. Ochoa-Vasquez, 428 F.3d 1015, 1035 (11th Cir. 2005) (considering
fact that defendant faced a “lengthy sentence if convicted” in analyzing the district
court’s decision to empanel an anonymous jury). Therefore, the judge’s decision to
empanel an anonymous jury was not an abuse of discretion.
Although not raised or briefed by the parties, we examine briefly the district
court’s explanation to the jury of its reasons for anonymity. When empaneling an
anonymous jury, the district court must provide the jurors with a “neutral” and “non-
prejudicial” explanation. Talley, 164 F.3d at 1002. Both this Court and several other
circuits have held that the need to protect the jury from unwanted publicity is an
appropriate explanation. See id. (finding proper the court’s explanation to jurors that
they would be anonymous to prevent the occurrence of unwanted media contact); see
also United States v. Marrero-Ortiz, 160 F.3d 768, 776 (1st Cir. 1998) (same); United
States v. Thomas, 757 F.2d 1359, 1365 (2d Cir. 1985) (same); compare United States v.
Scarfo, 850 F.2d 1015, 1025-26 (3d Cir. 1988) (finding appropriate judge’s statement
to jurors that they would remain anonymous to ensure that they would not be influenced
either by fear of retaliation by defendants or by media attention).
Here, the district judge explained to the jury: “Because of the unusually large
number of prospective jurors in this multi[-]defendant criminal trial, and to ensure a fair
trial, the Court has directed that the jurors will be anonymous.” (JA 441.) While it is
always a preferred practice for a district judge to be as clear and accurate as possible on
the reasons for using an anonymous jury, and this statement differs from the protection-
from-media-attention explanation typically given, in an appeal by one of the OMC-
No. 05-3410 United States v. Deitz Page 18
defendants from the first trial, we found an identical explanation to be sufficiently
neutral and non-prejudicial under Talley. See, e.g., Lawson, 535 F.3d at 440 (“The court
provided the jurors with a neutral, non-prejudicial reason for requiring their anonymity
by telling them that anonymity was required by the unusually large number of
prospective jurors.”). We reach the same conclusion here, and find no error. Therefore,
neither the court’s empaneling of an anonymous jury nor its explanation to the jury was
an abuse of discretion.
D. Deitz’s other alleged trial errors do not warrant the reversal of his
convictions
1. Admission of witness testimony and physical evidence pertaining to the
1991 and 1998 drug seizures was not improper
a. The admission of the evidence regarding the 1991 drug seizure did not
violate the Double Jeopardy clause of the Fifth Amendment
The district court admitted the narcotics seized during the 1991 stop, explaining:
The issue of guilt or innocence of that act for which Mr. Deitz was
acquitted in Jefferson County, Kentucky is not the issue here. It is
whether the act was part of a conspiracy and is evidence of a conspiracy.
Totally different issue. I will therefore deny the motion in limine with
you preserving your objections.
(JA 480-81.) Deitz argues that the district court’s ruling violated his rights under the
Double Jeopardy Clause because he was previously charged with and acquitted of drug
possession and trafficking in Kentucky state court following the 1991 seizure. We
disagree.
Usually, prosecution in both state court and federal court for offenses that would
otherwise constitute the same “offense” under the Fifth Amendment if tried successively
in the same forum, is constitutional under the dual sovereignty doctrine. See Heath v.
Alabama, 474 U.S. 82, 88-89 (1985). The doctrine provides that “the double jeopardy
clause does not apply to suits by separate sovereigns, even if both are criminal suits for
the same offense.” United States v. Louisville Edible Oil Prods., Inc., 926 F.2d 584, 587
(6th Cir.1991) (internal citation omitted). However, the doctrine is subject to certain
No. 05-3410 United States v. Deitz Page 19
limitations, one being the “sham-prosecution” exception, which bars manipulation of the
state system by federal officials to achieve the equivalent of a second federal
prosecution. See Bartkus v. Illinois, 359 U.S. 121, 123-24 (1959) (dictum); see also
United States v. Aboumoussallem, 726 F.2d 906 (2d Cir. 1983) (relying on Bartkus to
hold that a second prosecution by another sovereign is barred when it is a “‘[s]ham and
a cover’ for the first”).
Deitz argues that his case falls under the sham-prosecution exception because
federal authorities “orchestrated” his arrest by the Kentucky police. However, the
complex conspiracy at issue in Count 1 of the superseding indictment encompasses
substantially different elements from those at issue in the violation of Kentucky statutes
prohibiting possession of and trafficking in controlled substances. See United States v.
Clark, 254 F. App’x 528, 532-33 (6th Cir. 2007) (rejecting plaintiff’s sham-prosecution
argument where the state prosecution for simple drug possession was different in nature
from the federal drug-conspiracy charge). Also, nothing in the record suggests that
Kentucky authorities “did not make their own determinations” regarding whether to
prosecute Deitz following the 1991 seizure. Id. (rejecting defendant’s sham-prosecution
argument where “‘the separate sovereigns have made independent decisions to
prosecute’”) (quoting United States v. Angleton, 314 F.3d 767, 774 (5th Cir. 2002)).
Therefore, we reject Deitz’s Double Jeopardy argument.
b. Deitz has not established plain error as to his claim that the 1998
Kentucky drug seizure violated his Fourth Amendment rights
Deitz argues that the admission of evidence relating to the 1998 seizure of
marijuana, cocaine, and methamphetamine from the briefcase found in his vehicle during
a routine traffic stop, violated his Fourth Amendment rights because he never consented
to the officers’ search of the briefcase. At trial, Louisville police officer Brian
Thompson testified that the September 9, 1998 roadblock at which he stopped Deitz had
been erected under the department’s drug interdiction policies. Thompson and another
officer arrested Deitz when he failed to provide proof of insurance for his vehicle, and,
with Deitz’s consent, they searched his vehicle, and Officer Thompson found a briefcase
No. 05-3410 United States v. Deitz Page 20
that contained drugs and $2000 in cash. Although Deitz consented to a search of the car,
he claims that he never consented to a search of his briefcase and that the officers’ search
violated the Fourth Amendment.
Deitz failed to raise this argument at trial. We have previously held that “[w]hen
faced with a defendant’s complete failure to file a pretrial suppression motion, . . . ‘we
are categorically without jurisdiction to hear appeals of suppression issues raised for the
first time on appeal.’” United States v. Lopez-Medina, 461 F.3d 724 (6th Cir. 2006)
(internal citation omitted). However, we have also applied Rule 52(b)’s plain-error
review to new suppression arguments raised for the first time on appeal after a
defendant’s original suppression arguments proved unsuccessful at the trial court level.
Id. (citing United States v. Critton, 43 F.3d 1089, 1093 (6th Cir. 1995) (noting that “[w]e
consider a claim first raised on appeal only to correct errors that ‘are obvious, or if they
otherwise seriously affect the fairness, integrity, or public reputation of judicial
proceedings.’”) (quoting United States v. Atkinson, 297 U.S. 157, 160 (1936)).
Nonetheless, the jurisdictional issue is of no moment because Deitz’s claim fails even
under plain-error review. Puckett, 129 S. Ct. at 1425 (outlining the elements of the
plain-error test).
The Fourth Amendment protects a person’s right to his personal property without
interference from the police absent consent or reasonable suspicion or probable cause
that a crime has been, will be, or is being committed. See United States v. Buchanon,
72 F.3d 1217, 1228 (6th Cir. 1995). Deitz asserts that Officer Thompson’s admission
that Deitz did not consent to the search of his briefcase and the “questionable assertion
that a police officer in Kentucky has discretion to make a full-blown arrest for lack of
proof of insurance,” show that the arrest was merely an excuse to justify the search of
the briefcase. (Deitz Br. 38.) Deitz’s claim fails.
In 1998, an unwarranted search incident to a custodial arrest constituted an
exception to the warrant requirement of the Fourth Amendment where the search was
necessary to assure an officer’s safety or preserve evidence. See United States v.
Robinson, 414 U.S. 218, 235 (1973). Thus, at the time of the incident in question, police
No. 05-3410 United States v. Deitz Page 21
could lawfully search an arrestee and the area “within his immediate control”—meaning
the area from which he might gain possession of a weapon or destructible evidence. See
Chimel v. California, 395 U.S. 752, 763 (1969). However, on April 21, 2009, the
Supreme Court clarified its previous rulings on this issue. See Arizona v. Gant, 129 S.
Ct. 1710, 1713 (2009). In Gant, the Court held that authorities may not conduct an
unwarranted search of the passenger compartment of a vehicle unless “it is reasonable
to believe that the arrestee might access the vehicle at the time of the search or that the
vehicle contains evidence of the offense of arrest.” Id. at 1713. Under Gant, the
officers’ warrantless search of Deitz’s briefcase violated his Fourth Amendment rights
because the officers had no reason to suspect that the briefcase contained evidence
related to the offense of arrest—Deitz’s failure to show proof of insurance.
Nevertheless, at the time the officers stopped Deitz in 1998, they could lawfully search
the articles within Deitz’s control that might contain destructible evidence. See Chimel,
395 U.S. at 763; see also Atwater v. City of Lago Vista, 532 U.S. 318 (2001) (holding
that a custodial arrest for minor traffic infraction did not violate the Fourth Amendment).
Therefore, no plain error occurred, and Deitz’s Fourth Amendment argument is without
merit.
2. The admission of contested evidence did not violate Rule 403
Next, Deitz asserts that the district court improperly admitted irrelevant and
highly prejudicial evidence in violation of Rule 403 of the Federal Rules of Evidence
(“Rule 403”).1 Specifically, Deitz objects to the admission of the following:
(1) testimony by Bloor, Tracey Tipton, Ronald Talmadge, and Gary Watkins that their
fear of the OMC caused them to enter the Witness Protection Program; (2) testimony by
Dilts that Outlaw David Jack Hannum told him that he had witnessed OMC members
kill a suspected informant by slashing his throat; (3) photographs of t-shirts reading
“snitches are a dying breed” seized from Deitz’s home by law enforcement during their
1
Rule 403 provides 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.” Fed.
R. Evid. 403.
No. 05-3410 United States v. Deitz Page 22
execution of search warrants; (4) the drugs seized during Deitz’s 1991 and 1998 arrests;
and (5) the Dayton chapter t-shirt Deitz wore at the time of his 1998 arrest.
We review a district court’s evidentiary rulings for abuse of discretion. See
United States v. Wagner, 382 F.3d 598, 616 (6th Cir. 2004). However, where a
defendant fails to object at trial or “does not state the specific ground for his evidentiary
objection, and that ground is not apparent from the context, we review a newly raised
objection under the plain-error standard. United States v. Seymour, 468 F.3d 378, 384
(6th Cir. 2006) (quotation omitted); see Puckett, 129 S. Ct. at 1425 (outlining the
elements of the plain-error test).
When reviewing for abuse of discretion, we view “the evidence in the light most
favorable to its proponent, giving the evidence its maximum reasonable probative force
and its minimum reasonable prejudicial value.” United States v. Jackson, 473 F.3d 660,
668 (6th Cir. 2007) (quoting United States v. Moore, 917 F.2d 215, 233 (6th Cir. 2009)).
Moreover, “the prejudice to be weighed is the unfair prejudice caused by admission of
the evidence. Evidence that is prejudicial only in the sense that it paints the defendant
in a bad light is not unfairly prejudicial . . . .” United States v. Sanders, 95 F.3d 449, 453
(6th Cir. 1996). “It is well settled that a trial judge’s discretion in balancing the
probative value of evidence against its potential for unfair prejudice is very broad.”
United States v. Bilderbeck, 163 F.3d 971, 978 (6th Cir. 1999). We have emphasized
that “[i]f judicial self-restraint is ever desirable, it is when a Rule 403 analysis of a trial
court is reviewed by an appellate tribunal.” United States v. Zipkin, 729 F.2d 384, 390
(6th Cir. 1984) (quoting United States v. Long, 574 F.2d 761, 767 (3d Cir. 1978)).
Deitz first argues that the admission of evidence of various witness’ membership
in the Witness Protection Program “had absolutely no relevance to the drug conspiracy
charge against the three defendants in the second trial,” or to “Deitz’s alleged
involvement in the 1993 Iron Horseman clubhouse shooting.” (Deitz Br. 45.) Because
the information regarding various witness’ membership in the Witness Protection
Program was never the subject of a Rule 403 objection, we review Deitz’s claim for
No. 05-3410 United States v. Deitz Page 23
plain error. See Puckett, 129 S. Ct. at 1425 (outlining the elements of the plain-error
test).
We specifically considered the relevance of testimony regarding the Witness
Protection Program in United States v. Adamo, 742 F.2d 927, 944-46 (6th Cir. 1984).
There, defendants appealing their convictions for participation in a narcotics conspiracy
alleged that the prosecutor should have been barred from eliciting testimony regarding
various witnesses’ participation in the program. Id. at 944. They asserted that the
implication of such testimony would be that “their testimony must be truthful because
they would neither need nor be afforded protection [from appellants] if they were the
source of false information.” Id. We determined that the testimony at issue did not
prejudice the defendants and declined to impose a hard-and-fast rule about whether such
testimony is admissible, but we expressed our disapproval of such references by a
prosecutor when the need for protection “is not obvious, relevant, nor made an issue by
defense counsel, and we encourag[ed] trial judges to instruct such witnesses not to refer
to their participation in the program when testifying before the jury.” Id. at 945. We
explained that a reference to the program could “[r]aise negative inferences against the
defendant if great care is not employed.” Id. at 945 n.25. Other courts have expressed
similar concerns, and have determined that such references are admissible as long as
they do not directly implicate the defendant as a source of threats to the witness. See
United States v. Vastola, 899 F.2d 211, 235 (3d Cir. 1990) (noting that “the potential for
prejudice is slight where [a witness’s testimony about his participation in the Witness
Protection Program] only vaguely suggests that the witness was placed in the program
because of threats emanating from the defendant”); see also United States v. Martino,
648 F.2d 367, 387-88 (5th Cir. 1981) (determining that a witness’s participation in the
Witness Protection Program may be elicited so long as the prosecution does not raise an
inference of threat from the defendant); United States v. Castleberry, 642 F.2d 1151,
1153 (9th Cir. 1981) (holding that evidence of co-conspirator’s participation in the
Witness Protection Program was not so prejudicial as to require reversal).
No. 05-3410 United States v. Deitz Page 24
Here, the evidence was relevant to the Outlaws’ history of violence and reputed
practice of retaliating against witnesses and informants. However, where the record
reveals that the prosecutor never used the witness’ participation in the Witness
Protection Program to enhance their credibility, and did not try to imply that Deitz
himself was threatening witnesses, the admission of the testimony was not prejudicial.
See United States v. Panas, 738 F.2d 278, 285 (8th Cir. 1984) (explaining that where
testimony revealed that defendant had introduced the witness to several drug dealers and
witness had assisted in multiple investigations, his testimony about participating in the
Witness Protection Program was not prejudicial because it clearly had not resulted solely
from the witness’s efforts to assist in the investigation at issue); see United States v.
Frankenberry, 696 F.2d 239, 243 (3d Cir. 1982) (finding witness’s statement about his
participation in the Witness Protection Program was not prejudicial where the testimony
was vague and did not indicate that a threat specifically emanated from defendant). This
conclusion is further supported by the fact that the effect of any possible prejudice was
dissipated where the district court specifically instructed the jury that it should consider
the testimony of witnesses who “have received money and/or other things of value in
exchange for their cooperation . . . with more caution than the testimony of other
witnesses.” (JA 1114). Therefore, the admission of this evidence was not plain error
under Rule 403.
Deitz also contends that the admission of Dilts’s testimony that another Outlaw,
David Jack Hannum, had recounted assisting in slitting the throat of a suspected
“snitch.” At trial, the prosecution elicited testimony from Dilts detailing the Outlaws’
regular practice of retaliating against witnesses and informants. When Dilts began to
testify specifically about an the incident relayed to him by Hannum, defense counsel
objected, stating, “I don’t see any relevance as to these three defendants. This took place
in Florida, involved David Jack [Hannum] and three other people, and it has nothing to
do with the allegations set forth in the superseding indictment as it applies to these three
defendants.” (JA 583.) Defense counsel also voiced a specific concern about the
graphic nature of the testimony. Although the court ultimately admitted the testimony,
it instructed the prosecution not to “get into the details,” and the prosecutor agreed to
No. 05-3410 United States v. Deitz Page 25
“leave that [aspect of the testimony] out.” (JA 585.) Ultimately, Dilts testified to the
incident as follows:
Government: Did Mr. Hannum indicate to you that he and others took
some violent action toward an informant on an earlier occasion?
Dilts: Yes.
Government: Without getting into the details, what was it that Mr.
Hannum said occurred?
Dilts: That – while riding in the vehicle, that the passenger next to him
they thought was a snitch. And one of the passengers in the back seat
pulled his head back, and the other passenger beside him cut his throat.
Government: Did Mr. Hannum indicate that the person did, in fact, die?
Dilts: Yes.
Government: Did he indicate what they did with the body?
Dilts: Yes. He said they stopped on a bridge on the way down to Florida
and threw it over the bridge.
(JA 586-87.)
Because Deitz objected to the testimony as being irrelevant under Federal Rule
of Evidence 401 rather than being unfairly prejudicial under Rule 403, he has forefeited
his prejudice argument for appeal, and we, therefore, review the argument for plain error.
See Puckett, 129 S. Ct. at 1425 (outlining the elements of the plain-error test). Although
the testimony at issue could be considered inflammatory, it did not undermine the
integrity of Deitz’s trial. Furthermore, the testimony was merely cumulative of the
myriad of details the jury heard throughout the trial about the OMC’s history of and
propensity toward violence against informants and others, and the district court
minimized the prejudice to Deitz by directing the government to omit the more gruesome
details of the incident. See, e.g., United States v. Myers, 280 F.3d 407, 414 (4th Cir.
2002) (noting that in a murder case, the court sought to minimize prejudice to the
defendant by not allowing the government to show inflammatory photographs depicting
the body or bloody scene and by requiring the government to obtain an advance ruling
No. 05-3410 United States v. Deitz Page 26
before introducing any evidence depicting blood or any other indicia of violence). Thus,
the admission of Dilts’s testimony was not plain error.
As to Deitz’s objections regarding the admission of the photographs of the
“snitches are a dying breed” t-shirts, the seized drugs, and Deitz’s Dayton OMC chapter
t-shirt, it is not clear that Deitz objected to the admission of these items under Rule 403
at trial. Regardless, we find that Deitz’s claim fails under either abuse-of-discretion or
plain-error review. Given the significant evidence about the OMC’s focus on retaliation
against informants, the t-shirts were relevant to the charges at issue and not so
prejudicial that their admission should have been barred by the district court. Moreover,
the seized drugs and the Dayton chapter t-shirt were relevant to and probative of Deitz’s
participation in the charged offense, especially in light of Deitz’s claim that he was no
longer associated with the OMC. Because the evidence’s probative value was not
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,” Fed. R. Evid. 403, its admission was not an abuse
of discretion.
3. The narcotics and firearms conspiracy counts were not misjoined
Deitz contends that the joinder of Counts 1 and 2, the narcotics and firearms
conspiracy charges, constitutes reversible error because the government lacked a
reasonable expectation of producing evidence to justify joinder, the government used the
firearms conspiracy count as a means to prosecute Deitz for an otherwise time-barred
offense, and the spillover effect of unrelated firearms evidence from the retroactive
misjoinder unfairly prejudiced Deitz. Count 2, the firearms conspiracy, states that from
about 1990 on, various Outlaws conspired “to use and carry firearms, deadly weapons,
dangerous weapons, and devices during and in relation to the commission of the drug
trafficking crime . . . in connection with their cocaine, marijuana, methamphetamine, and
valium distribution operation.” (JA 380-81.) Count 2 also notes that it was the purpose
of the conspiracy that the defendants would carry out and use firearms in connection
with crimes of violence.
No. 05-3410 United States v. Deitz Page 27
Federal Rule of Criminal Procedure 8(a) (“Rule 8(a)”) sets forth the conditions
under which multiple offenses may be joined in a single indictment:
Two or more offenses may be charged in the same indictment or
information in a separate count for each offense if the offenses charged,
whether felonies or misdemeanors or both, are of the same or similar
character or are based on the same act or transaction or on two or more
acts or transactions connected together or constituting parts of a common
scheme or plan.
Fed. R. Crim. 8(a). Whether joinder was proper under Rule 8(a) is determined by the
allegations on the face of the indictment. See United States v. Frost, 125 F.3d 346, 389
(6th Cir. 1997). In most cases, the absence of evidence at trial linking two sets of
charges results in misjoinder only if the indictment was drawn up in bad faith—i.e.
where the government knew it could not prove a link between the charges at trial.
Callanan v. United States, 881 F.2d 229, 235-36 (6th Cir. 1989). Misjoinder is a
question of law that we review de novo. See Frost, 125 F.3d at 389. We have held that
Rule 8(a) “should be construed in favor of joinder,” but “it is also true that failure to
meet the requirements of this rule constitutes misjoinder as a matter of law.” United
States v. Hatcher, 680 F.2d 438, 440 (6th Cir. 1982).
Federal Rule of Criminal Procedure 14(a) (“Rule 14(a)”) permits the court to
sever joined offenses where “consolidation for trial appears to prejudice a defendant.”
See Fed. R. Crim. 14(a). However, under Federal Rule of Criminal Procedure
12(b)(3)(D) (“Rule 12(b)(3)(D)”), a defendant who fails to move for severance under
Rule 14(a) prior to trial waives his objection. United States v. Rox, 692 F.2d 453, 454
(6th Cir. 1982). Thus, because the record reveals that Deitz failed to file a Rule 14(a)
motion prior to trial, he waived his objection.
Moreover, even if Deitz had timely raised the misjoinder issue, his claim still
fails. Rule 14(a) requires that the counts in an indictment be severed only when the
defendant demonstrates that he will be prejudiced by the joinder of the charges. See Rox,
692 F.2d at 454 (“A defendant is prejudiced if the jury would be unable to keep the
evidence from each offense separate and unable to render a fair and impartial verdict on
No. 05-3410 United States v. Deitz Page 28
each offense.”); but see United States v. Sutton, 605 F.2d 260, 271 (6th Cir. 1979)
(explaining that “[a] risk of prejudice, either from evidentiary spillover or transference
of guilt, inheres in any joinder of offenses or defendants”). Here, where the jury
convicted Deitz on Count 1 but chose to acquit him on Count 2, and acquitted Heckman
altogether, the jury’s verdict demonstrates that it made an individualized determination
of each defendant’s guilt as to each count. See United States v. Bibby, 752 F.2d 1116,
1122 (6th Cir. 1985) (citing acquittal on misjoined charges as evidence that the
defendant was not prejudiced by the joinder); United States v. Warner, 690 F.2d 545,
553 (6th Cir. 1982) (noting that the jury’s verdict acquitting defendant of the substantive
count and convicting co-defendant of a lesser included offense demonstrated that the
jury followed the court’s instructions to make individualized determinations of each
defendant’s guilt as to each count). Further, where the narcotics and firearms
conspiracies are inextricably linked by defendants’ participation in and association with
the OMC, they are appropriately “connected with or constitut[ing] parts of a common
scheme or plan.” Fed. R. Crim. 8(a); see United States v. Price, 265 F.3d 1097, 1105
(10th Cir. 2001) (stating that where defendants possessed the firearms at issue to carry
out their drug trafficking, joinder of the firearms and drugs counts was proper).
Accordingly, Deitz has clearly failed to make the requisite “strong showing of prejudice”
required to warrant reversal.
We also reject Deitz’s argument that the government used Count 2 of the
superseding indictment (the firearms conspiracy count) as a “sham pleading device” to
prosecute Deitz for the otherwise time-barred September 18, 1993 shooting at the
Anderson, Indiana clubhouse of the Iron Horsemen, a rival motorcycle gang. Deitz
contends that the sole allegation connecting Deitz to the firearms conspiracy count is that
he participated in this drive-by shooting, and that the government lacked a good faith
belief that this allegation was sufficient to demonstrate an agreement by Deitz embracing
a continuing series of § 924(c) firearm violations by other members within the
limitations period. Deitz asserts that because the five-year statute of limitations for
trafficking firearms expired in 1998, the government used the conspiracy count as a
“sham pleading” device in an effort to “resurrect” Deitz’s irrelevant 1993 offense. He
No. 05-3410 United States v. Deitz Page 29
further argues that the government failed to prove that the conspiracy continued into the
period not barred by the statute of limitations because Bloor’s trial testimony about this
shooting suggested that it had “developed spontaneously” and was an isolated event.
Despite Deitz’s contention, the Iron Horsemen shooting is relevant to the
firearms conspiracy because it is directly connected to Deitz’s membership in and
continuing involvement with the OMC, who were known for their retaliatory violence
against rival clubs. Moreover, Deitz adduced no evidence that he withdrew from the
lengthy narcotics conspiracy following the 1993 shooting. We have previously held that
where a conspiracy is ongoing, a conspirator is liable for the acts of his co-conspirators
during the relevant statute of limitations period unless he “is found to have withdrawn
from a conspiracy,” i.e., “[w]here he or she made a full confession to authorities or
communicated to his co-conspirators that he has abandoned the enterprise and its goals.”
United States v. Brown, 332 F.3d 363, 374 (6th Cir. 2003) (internal citations omitted).
Merely ceasing activities on behalf of the conspiracy does not constitute withdrawal. Id.Deitz argues that the fact that he was not in good favor with Wheeler because Wheeler
had rejected Deitz’s plan to sell methamphetamine constitutes his “withdrawal.” But
without evidence of an affirmative act conveying such withdrawal, Deitz’s deteriorating
relationship with Wheeler is not enough. See id. Therefore, given that Deitz was a part
of the narcotics conspiracy during the relevant limitations period, the government’s
inclusion of the 1993 Iron Horsemen shooting in the indictment was proper.
Finally, Deitz argues that regardless of whether the joinder was proper initially,
he was unfairly prejudiced by “retroactive misjoinder” and the resulting “spillover” of
otherwise inadmissible evidence. Specifically, he asserts that the “government used the
firearms conspiracy count as its justification for introducing a plethora of testimony and
exhibits regarding the presence, carrying, and use of firearms which would not otherwise
be admissible in a drug conspiracy prosecution.” (Deitz Br. 43.) Again, Deitz’s claim
fails.
“Retroactive misjoinder” occurs where “joinder was proper initially because of
a conspiracy allegation, but where later developments, such as the district court’s
No. 05-3410 United States v. Deitz Page 30
decision in [the] case months later to set aside [a defendant’s] conspiracy conviction,
appear to render the initial joinder improper.” Warner, 690 F.2d at 553. We have
previously noted that “retroactive misjoinder” cases are governed by the same standards
as are applied in any case of prejudicial joinder. Id. (citing Schaffer v. United States,
362 U.S. 511 (1960) (holding that the propriety of a joint trial is governed by the same
standards as applied in any case in which prejudicial joinder is alleged)). Further, we
have explained that “[c]laims of prejudicial misjoinder only succeed when ‘the defendant
makes a showing of compelling prejudice’ or ‘the prosecutor acted in bad faith in
bringing the initial conspiracy charge’. . . The burden of showing prejudice is ‘very
heavy.’” Goldsby v. United States, 152 F. App’x 431, 439 (6th Cir. 2005) (quoting
Warner, 690 F.2d at 554) (holding that defendant failed to meet his burden of
demonstrating prejudicial misjoinder where he “merely allege[d] that ‘the jury could
have easily lost its way. . .’”). Deitz’s undeveloped argument that he was prejudiced by
the admission of testimony about the Outlaws’ use of firearms is insufficient to meet his
heavy burden of demonstrating “compelling prejudice” where we found that there is
sufficient evidence to sustain Deitz’s conviction on the narcotics conspiracy count. See
United States v. Bowker, 372 F.3d 365, 385 (6th Cir. 2004) (holding that “non-specific
assertions of prejudice are insufficient to warrant severance”). We therefore reject
Deitz’s misjoinder claims.
4. Any prosecutorial misconduct occurring at trial was harmless error
Deitz next contends that various incidents of prosecutorial misconduct and
government overreaching occurring at trial warrant the reversal of his conviction.
Where a defendant objects at trial, we review the claims of prosecutorial misconduct de
novo. United States v. Kuehne, 547 F.3d 667, 687 (6th Cir. 2008). “[T]o determine
whether a prosecutor engaged in misconduct, [we first] must consider ‘whether the
prosecutor’s conduct and remarks were improper.’” Id. (quoting United States v. Carter,
236 F.3d 777, 783 (6th Cir. 2001)). If the conduct was improper, we then determine
“whether the improprieties were flagrant such that a reversal is warranted.” Id. at 687-88
(citing Carter, 236 F.3d at 783). In considering whether a prosecutor’s conduct was
No. 05-3410 United States v. Deitz Page 31
flagrant, we ask whether: (1) the conduct or remarks in question tended to mislead the
jury or prejudice the defendant; (2) the conduct or remarks were isolated or extensive;
(3) the conduct or remarks were deliberate or accidental; and (4) the evidence against the
defendant was strong. Id. at 688; see also United States v. Monus, 128 F.3d 376, 394
(6th Cir. 1997). “Flagrantly improper remarks by the prosecution must be reversed
. . . [and] prosecutorial misconduct may be so exceptionally flagrant that it constitutes
plain error, and is grounds for reversal even if the defendant did not object to it.”
Kuehne, 547 F.3d at 688 (internal citations omitted). If the challenged remarks are not
flagrant, however, reversal is warranted only “if proof of the defendant’s guilt was not
overwhelming, the defendant objected to the improper remarks, and the court failed to
cure the error with an admonishment to the jury.” Id. (quoting United States v. Stover,
474 F.3d 904, 915 (6th Cir. 2007)).
Deitz contends that the government engaged in misconduct by: (1) improperly
referring to hearsay and impeachment evidence during closing argument; (2) misstating
the facts to introduce a new theory of conspiratorial liability during closing argument;
and (3) misstating the law regarding buyer-seller transactions. We consider each of
Deitz’s arguments below.
a. The prosecutor did not improperly use hearsay and impeachment
evidence during closing argument
First, Deitz claims that the government improperly referred to hearsay and
impeachment evidence during closing argument to argue that the cocaine seized from
Deitz’s borrowed car in 1991 had been given to him by members of the Dayton chapter.
Specifically, Deitz objects to the following statement by the prosecution: “Do you think
[the events of March 20 and 21, 1991 were] just a big coincidence? Just a big
coincidence that the informant said he was going to pick up a load, and then, lo and
behold, when he’s stopped, there’s the cocaine?” (JA 1133.) Deitz asserts that the
government’s statement improperly asked the jury to infer that the cocaine seized from
the car was provided by a member of the Dayton chapter and that the remarks prejudiced
Deitz by substantially increasing the probability that the jury would convict Deitz of
conspiracy.
No. 05-3410 United States v. Deitz Page 32
Because Deitz did not object to the statement during trial, we review the
prosecutor’s conduct for plain error. See United States v. Combs, 369 F.3d 925, 938
(6th Cir. 2004); see Puckett, 129 S. Ct. at 1425. Under this standard, the prosecutor’s
remarks do not warrant the reversal of Deitz’s conviction because, as we have noted
earlier, the evidence to which the government was referring was properly admitted to
show the background of the government’s surveillance of Deitz.
Second, Deitz claims that the government prejudiced him during closing
argument by encouraging the jury to use certain trial testimony by Kinser to infer that
Deitz was still closely associated with the Outlaws as late as 2002 or 2003. At trial, the
court overruled defense counsel’s objection to a tape recording of a telephone
conversation between Kinser and James Fowler, a fellow Outlaw, reasoning that the
government had properly used it only to challenge Kinser’s credibility. Deitz asserts
that rather than using the evidence merely to challenge Kinser’s credibility, the
prosecutor used the evidence in support of its case-in-chief, when he made the following
statement during closing argument:
In that particular tape Mr. Kinser is indicating that Deitz’s “shit” . . . was
with his wife while he was in there [i.e. prison], suggesting if not outright
proving that Mr. Deitz was still associated with the Outlaws at that
point. . . Mr. Kinser is talking about Mr. Deitz’s wife having his colors
while Mr. Deitz was in prison. What I submit to you, ladies and
gentlemen, is that indicates a continued association of Mr. Deitz with the
Outlaws.
(JA 1145, 1147.)
Again, because Deitz failed to object to this remark during trial, we review it for
plain error. Combs, 369 F.3d at 938. And again, Deitz’s argument fails because to the
extent that the prosecutor’s comments sought to use the conversation for purposes other
than impeachment, the prosecution’s remarks were isolated, occurring primarily during
closing argument at the conclusion of a lengthy trial. See United States v. Carroll, 26
F.3d 1380, 1383 (6th Cir. 1994) (holding that improper comments warrants reversal only
“where the error is so plain that ‘the trial judge and prosecutor were derelict in
countenancing it’”); Gillard v. Mitchell, 445 F.3d 883, 898 (6th Cir. 2006) (citing United
No. 05-3410 United States v. Deitz Page 33
States v. Solivan, 937 F.2d 1146, 1155 (6th Cir. 1991) (prosecutorial misconduct was
“isolated to one portion of the trial, closing argument”)). In addition, the trial court
employed limiting instructions to rectify the improper remarks and explained to the jury
that counsel’s argument were not evidence. See Wilson v. McMacken, 786 F.2d 216, 219
(6th Cir. 1986) (concluding that defendant could not establish prejudice where trial judge
provided jury with limiting instruction before and after prosecutor’s closing argument
containing contested statements). Given that “juries are presumed to understand and
follow directions from the court,” Carter, 236 F.3d at 787, we conclude that the
prosecutor’s statements did not “confuse or improperly influence” the jury.
b. The prosecutor’s alleged misrepresentation of facts during closing
argument does not amount to prosecutorial misconduct
Next, Deitz asserts that the government improperly introduced a “new theory of
conspiratorial liability” during its closing argument, claiming that Deitz conspired with
a group of Outlaws to sell methamphetamine out of the Louisville clubhouse.
Specifically, Deitz objects to the following remarks:
Government: . . . In fact, the truth was that Deitz continued to hang out
and associate with the Outlaws in 2002, 2003, and continued to be part
of the conspiracy that is charged in this particular case.
Defense Counsel: Your honor, there was no testimony that he was—he
was in prison in 2002 and 2003.
Government: Well let me clarify . . . . [T]hat’s why Mr. Kinser
[president of the Louisville chapter] could not acknowledge that when he
came in here [as a defense witness], that, in fact, Mr. Deitz continued to
be a regular associate of the Outlaws.
And bear in mind, we’re talking about the Louisville Outlaws, where
methamphetamine dealers were a dime a dozen. There were quite a few
of them, all involved in this conspiracy. All involved. And a consistent
conspiracy on the part of members and associates of the Outlaws to sell
drugs.
(JA 1146-47.)
No. 05-3410 United States v. Deitz Page 34
Although he did not object at trial, Deitz now asserts that the admission of this
argument was unfairly prejudicial because it allowed the government to “sidestep
problems posed by” witness testimony that Wheeler had banned Outlaws from selling
methamphetamine by suggesting to the jury that Deitz could still be guilty of the
narcotics conspiracy if the jury found him guilty of conspiring to distribute
methamphetamine with various Louisville Outlaws. Despite Deitz’s assertions, the
admission of the argument was not plain error. See Combs, 369 F.3d at 938. Throughout
the trial, the government presented evidence that members and associates of the OMC
participated in a conspiracy to buy and sell drugs, and Deitz’s methamphetamine sales
to Louisville chapter members fall within the realm of such a conspiracy.
c. Though the government misstated the law regarding buyer-seller
transactions, the error was harmless
Deitz also claims that he was improperly prejudiced by the prosecutor’s
misstatement of law at closing regarding the ordinary “buyer-seller” defense to a drug
conspiracy charge. During its closing argument, the prosecution told the jury that:
Government: [The instructions] suggest[] that where there’s totally a
simple buyer/seller relationship between parties, that’s not enough to
establish a conspiracy. Of course, all of the law the Judge gives you, you
have to apply and have to accept. But this particular concept only applies
if the sale of the drugs was a one-time isolated event, and it only applies
if these particular sales are completely unrelated to the conspiracy. We
would submit to you that it does not apply in this case. Taking, for
example, Mr. Heckman selling to Mr. Watkins. Clearly that was one
course of this conspiracy. He sold methamphetamine on several
occasions.
(JA 1150-51.) Defense counsel objected, arguing that the prosecution’s statement made
it appear that a buyer-seller relationship can be based on a single transaction, but the
district court did not expressly rule on defense counsel’s objection, choosing instead to
admonish the jury that “they’ll take the law from the instructions and not from the
lawyers.” (JA 1151.) Deitz now asserts that government’s statement misled the jurors
into believing that the existence of multiple transactions automatically precluded them
from finding an ordinary buyer-seller relationship between Deitz and both Bloor and
No. 05-3410 United States v. Deitz Page 35
Garland, and he argues that the district court should have given the jury an unambiguous
correction of the instruction.
Although we have previously held that “evidence of repeat purchases provides
evidence of more than a mere buyer-seller relationship,” it is not true that a buyer-seller
relationship can only exist if parties engage in a single isolated transaction. See Brown,
332 F.3d at 373 (stating that evidence of repeated drug purchases suggests more than a
“mere buyer-seller relationship” and that evidence of transactions involving a large
quantity of narcotics creates an inference of conspiracy). As noted above, an analysis
of whether parties have more than a mere buyer-seller relationship involves the
balancing of a number of factors, and is not simply determined by whether a sale was an
isolated incident. See Cole, 59 F. App’x at 700 (citing Rivera, 273 F.3d at 755). Thus,
we agree with Deitz’s claim that the government’s statement that the “buyer-seller”
concept only applies where the sales in question are “one-time isolated” events and are
“completely unrelated to the conspiracy” was incorrect.
Even if the government’s statement misled the jury, however, any resulting error
was harmless because it did not prejudice Deitz. The court instructed the jury that it
should consider only the court-provided jury instructions in evaluating the case, and the
parties do not challenge the accuracy of those instructions. Moreover, there was
substantial evidence presented at trial that weighed against Deitz. Monus, 128 F.3d at
394. The bulk of the evidence established that, under the factors set forth in Cole (and
Rivera), Deitz’s relationship with the various witnesses was not merely a buyer-seller
relationship. Thus, the government’s misstatement of the law also does not warrant
reversal.
5. Deitz’s claim of “cumulative error” does not warrant reversal
Deitz asserts that even if none of the aforementioned errors requires reversal on
its own, when considered cumulatively “the combined effect of individually harmless
errors [is] so prejudicial as to render his trial fundamentally unfair.” United States v.
Trujillo, 376 F.3d 593, 614 (6th Cir. 2004). However, cumulative-error analysis is not
relevant where no individual ruling was erroneous. Other than the government’s
No. 05-3410 United States v. Deitz Page 36
misstatement of the law regarding buyer-seller relationships, there was no error, and no
abuse of discretion in the admission of the challenged evidence. Therefore, cumulative
error did not render Deitz’s trial unfair.
E. Deitz’s sentence was procedurally and substantively reasonable
Deitz also asserts that his 144-month sentence was “unreasonable” because the
district court erred in relying on the jury’s special verdict to calculate the Base Offense
Level, miscalculated his criminal history score, and failed to dismiss the specification
of a prior drug abuse offense under 18 U.S.C. § 851 (“Proceedings to establish prior
convictions”).
We review the district court sentence for procedural and substantive
reasonableness. United States v. Crawford, 281 F. App’x 444, 449 (6th Cir. 2008)
(quoting Gall v. United States, 128 S. Ct. 586, 597 (2007)). Deitz does not specify
whether he challenges his sentence on procedural or substantive grounds, but his
contention that the district court improperly calculated the Guidelines range is
procedural in nature, see United States v. Moon, 513 F.3d 527, 539 (6th Cir. 2008)
(noting that whether a court correctly calculated the applicable Guidelines range is a
question of procedural reasonableness), and his overall objection to his 144-month
sentence appears to be a substantive challenge. United States v. Vowell, 516 F.3d 503,
512 (6th Cir. 2008) (“For a sentence to be substantively reasonable, it must be
proportionate to the seriousness of the circumstances of the offense and offender, and
sufficient but not greater than necessary, to comply with the purposes of [18 U.S.C.] §
3553(a).”).
1. Deitz’s sentence was procedurally reasonable
When reviewing a sentence for procedural reasonableness, we must “ensure that
the district court committed no significant procedural error, such as failing to calculate
(or improperly calculating) the Guidelines range, treating the Guidelines as mandatory,
failing to consider the § 3553(a) factors, selecting a sentence based on clearly erroneous
facts, or failing to adequately explain the chosen sentence . . . .” Moon, 513 F.3d at 539
No. 05-3410 United States v. Deitz Page 37
(citing Gall, 128 S. Ct. at 594). Our “reasonableness review focuses on the factors listed
in [18 U.S.C.] § 3553(a), one of which is the Sentencing Guidelines themselves.” Id.
(citing United States v. Duckro, 466 F.3d 438, 442 (6th Cir. 2006)). A sentence may be
procedurally unreasonable where the district court “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.Deitz’s primary argument is that the district court erred in its application of the
United States Sentencing Guidelines (“U.S.S.G.” or “Guidelines”). “[D]istrict courts are
required to ‘consult’ the Guidelines as part of their consideration of the § 3553(a)
factors. We have observed that ‘a district court’s misinterpretation of the Guidelines
effectively means that it has not properly consulted [them].’” Moon, 514 F.3d at 539
(citing United States v. Hazelwood, 398 F.3d 792, 801 (6th Cir. 2005)).
The jury returned a special verdict attributing more than 50 grams but less than
500 grams of methamphetamine to Deitz. In its statement submitted to United States
Department of Pretrial and Probation Services, the government based its calculation on
the testimony of Bloor and Dilts, and the drugs found during the car stop in 1998, and
found Deitz responsible for approximately 80 grams of methamphetamine. The Pre-
Sentence Investigation Report (“PSR”) recommended a Base Offense Level of 26. At
sentencing, the district court heard the parties’ arguments on drug quantity and assigned
Deitz a Base Offense Level of 26 and a Criminal History Category of VI, corresponding
to a Guidelines range of 120 months’ to 150 months’ imprisonment, ultimately
sentencing Deitz to a term of 144 months.
We review the district court’s application of the Sentencing Guidelines de novo
and its findings of fact for clear error. United States v. Davidson, 409 F.3d 304, 310 (6th
Cir. 2005). “A factual finding is clearly erroneous ‘when the reviewing court on the
entire evidence is left with the definite and firm conviction that a mistake has been
committed.’” Moon, 513 F.3d at 540 (quoting Tran v. Gonzales, 447 F.3d 937, 943 (6th
Cir. 2006)).
No. 05-3410 United States v. Deitz Page 38
a. The district court’s reliance on the jury’s special verdict as to drug
quantity was proper
Deitz first objects to the district court’s determination of his Base Offense Level
at 26, which corresponds to the finding attributing at least 50 grams but less than 500
grams of methamphetamine to Deitz. Deitz’s argument is without merit. When
sentencing a defendant within the statutory ceiling set by the jury’s verdict, the district
court may consider other facts, including acquitted conduct. United States v. White, 551
F.3d 381, 385 (6th Cir. 2008) (en banc). The district court’s factual finding regarding
drug quantity at sentencing was not clearly erroneous because the special jury verdict
attributing more than 50 grams of methamphetamine to Deitz was reasonable under the
circumstances.
b. The district court properly calculated Deitz’s criminal history category
Deitz contends that the district court erred by adding eight points to his criminal
history for his convictions for misdemeanor offense occurring on September 8, 1988 and
September 27, 1988. U.S.S.G. § 4A1.2(e)(2) provides that prior sentences imposed
within ten years of the offense at issue are counted in computing the criminal history.
The comments to the Guidelines provide that “the term ‘commencement of the instant
offense’ includes any relevant conduct,” see U.S.S.G. § 4A1.2 cmt. 8, where “relevant
conduct” is “all reasonably foreseeable acts and omissions of others in furtherance of the
jointly undertaken criminal activity, that occurred during the commission of the offense
of conviction, in preparation for that offense, or in the course of attempting to avoid
detection or responsibility for that offense . . . .” U.S.S.G. § 1B1.3(a)(1)(B). Because
the evidence shows that Deitz began participating in the narcotics conspiracy at least by
1991, the district court properly considered his 1988 convictions in calculating his
Criminal History Category. See United States v. Johnson, 553 F.3d 990, 993-94 (6th
Cir. 2009) (counting defendant’s previous convictions within ten years of joining the
alleged conspiracy as “relevant conduct” to calculate defendant’s Criminal History
Category).
No. 05-3410 United States v. Deitz Page 39
c. The district court did not err in enhancing Deitz’s sentence under 21
U.S.C. § 851Deitz’s final argument is that the district court should have dismissed the
information that had been filed under 21 U.S.C. § 851(a)(1), stating that Deitz was
convicted of a felony drug offense in May 2000 (arising from the 1998 Kentucky traffic
stop), because the government failed to prove that the transaction was part of the
conspiracy. 21 U.S.C. § 851, “Proceedings to establish previous convictions,” provides:
[i]f the United States attorney files an information under this section, the
court shall after conviction but before pronouncement of sentence inquire
of the person . . . whether he affirms or denies that he has been
previously convicted as alleged in the information, and shall inform him
that any challenge to a prior conviction which is not made before
sentence is imposed may not thereafter be raised to attack the sentence.
21 U.S.C. § 851(b). Where a defendant disputes the district court’s determination of
when he joined the conspiracy, rather than challenging the validity of a prior conviction,
we review the issue for plain error. Gibbs, 182 F.3d at 408 (noting that government
failed to show by a preponderance of the evidence that defendant was a member of the
conspiracy at the time he was arrested for possession of narcotics and a firearm).
Deitz asserts that the sentencing enhancement was improper because “[t]he
Government did not prove any conspiratorial activity by Deitz after his state trafficking
convictions became final in the year 2000.” (Deitz Br. 60.) We disagree. A co-
conspirator is liable for the acts of his co-conspirators during the relevant statute of
limitations period unless he “is found to have withdrawn from [the] conspiracy,” i.e.
“[w]here he or she made ‘a full confession to authorities’ or communicated to his co-
conspirators ‘that he has abandoned the enterprise and its goals.’” Brown, 332 F.3d at
373. Here, there is sufficient evidence to support the jury’s finding that Deitz was a
member of the conspiracy prior to the 1991 drug seizure. See supra Part II.B. Because
Deitz has set forth no evidence establishing his affirmative withdrawal from the ongoing
conspiracy prior to the 1998 drug seizure that resulted in his 2000 convictions, the
district court’s enhancement of his sentence on that basis was not plain error.
No. 05-3410 United States v. Deitz Page 40
d. Conclusion
Deitz does not challenge the district court’s consideration of the § 3553(a) factors
or its explanation of the rationale for his 144-month sentence. Therefore, reviewing the
drug quantity, the enhancement, and the criminal history information properly before the
court during sentencing, his sentence is procedurally reasonable.
2. Deitz’s sentence is substantively reasonable
A sentence must also be substantively reasonable, which means it must be
“proportionate to the seriousness of the circumstances of the offense and offender, and
sufficient but not greater than necessary, to comply with the purposes of § 3553(a).”
Vowell, 516 F.3d at 512. We afford sentences within a properly calculated Guidelines
range a rebuttable presumption of reasonableness. United States v. Williams, 436 F.3d
706, 708 (6th Cir. 2006). Deitz’s sentence falls within the advisory Guidelines range of
120 months’ to 150 months’ imprisonment, so it is entitled to a rebuttable presumption
of reasonableness. Deitz does not expressly challenge the substantive reasonableness
of his sentence, but his claim that his 144-month sentence was “more than double the
worst case scenario” discussed with the Government during plea negotiations could be
construed as a challenge to the substantive reasonableness of his sentence. We find this
argument unavailing.
The district court considered Deitz’s objections to the PSR and his “lengthy”
sentencing memorandum as well as the parties’ arguments during the sentencing hearing.
The district court also considered the fact that Deitz had long-time participation in
criminal activities, stating:
In amplifying my reasons for sentence further, I have considered the
guidelines to be advisory and the statute, of course, to be mandatory.
However, within those advisory guidelines of an additional zero to 30
months over the mandatory minimum of ten years or 120 months, I’ve
considered the background of this defendant, and I believe that the
guidelines are extremely reasonable in light of the facts which were
adduced at trial, and the criminal history, and the reasons for the
compilation of those criminal history points. I believe that without
regard to the guidelines that Section 3553(a) is satisfied by my
No. 05-3410 United States v. Deitz Page 41
sentencing to 144 months. I believe it to be reasonable in light of the
conviction, the history of this defendant, the criminal history of this
defendant, the findings of the jury, the need for incarceration for
purposes of both rehabilitation and deterrence.
(JA 1182.)
Section 3553(a) requires district courts to consider “the nature and circumstances
of the offense . . . .,” 18 U.S.C. § 3553(a)(1), and demands that “the sentence imposed
. . . reflect[s] the seriousness of the offense, [] promote[s] respect for the law, and []
provide[s] just punishment for the offense.” See 18 U.S.C. § 3553(a)(2)(A). “Under
Booker and its progeny, the sentencing choices available to the district courts in meeting
the requirements of § 3553(a)(2) have ‘significantly broadened.’” Moon, 513 F.3d at544 (citing Gall, 128 S. Ct. at 602). Thus, the district court’s ability to weigh the factual
circumstances surrounding the offense to determine the appropriate sentence is
“paramount.” Id. “In general, we must give ‘due deference’ to the district court’s
conclusion that the sentence imposed is warranted by the § 3553(a) factors. The fact that
[we] might have reasonably concluded that a different sentence was appropriate is
insufficient to justify reversal of the district court.” United States v. Bolds, 511 F.3d
568, 581 (6th Cir. 2007).
The district court’s explanation adequately establishes that the court properly
considered Deitz’s significant criminal history and past violence and his association with
a known criminal group in evaluating the seriousness of his offense, as well as the need
to provide “just punishment” for the crime. See, e.g., Moon, 513 F.3d at 544 (finding
that court properly considered the impact of defendant’s health care fraud on her patients
in conducting the inquiry required by § 3553(a)). Therefore, Deitz has failed to rebut
the presumption that his within-Guidelines sentence is substantively reasonable.
III. CONCLUSION
For the foregoing reasons, we AFFIRM Deitz’s conviction and sentence.