United States v. LaShonda Hall

NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
File Name: 13a0203n.06
Nos. 11-5592, 11-5888, 11-5893
FILED
Feb 25, 2013
UNITED STATES COURT OF APPEALS
DEBORAH S. HUNT, Clerk
FOR THE SIXTH CIRCUIT
UNITED STATES OF AMERICA, )
)
Plaintiff-Appellee, ) ON APPEAL FROM THE
) UNITED STATES DISTRICT
v. ) COURT FOR THE EASTERN
) DISTRICT OF TENNESSEE
JOHNNIE MARTIN, LASHONDA HALL, and )
AARON BROOKS, )
)
Defendants-Appellants. )
)
BEFORE: McKEAGUE and GRIFFIN, Circuit Judges; and DLOTT, District Judge.*
GRIFFIN, Circuit Judge.
The three cases consolidated in this appeal involve a large-scale drug operation in which
drugs were obtained from suppliers in Atlanta, Georgia, and redistributed for profit in Knoxville,
Tennessee. Defendants Johnnie Martin, Lashonda Hall, Aaron Brooks, and several other
co-defendants were charged with conspiracy to violate the federal drug laws, among other crimes.
Martin was tried separately, and Hall and Brooks were tried jointly. This appeal followed their
convictions and sentences. We affirm.
*
The Honorable Susan Dlott, United States District Judge for the Southern District of Ohio,
sitting by designation.
Nos. 11-5592, 11-5888, 11-5893
United States v. Martin, et al.
I.
In February of 2007, the government began investigating James Cofer’s involvement in
narcotic sales in Knoxville, Tennessee. After a series of controlled buys of crack cocaine by a
confidential informant, the government obtained court authorization to wiretap Cofer’s phone.
Additional wiretapping led to Travares Smith, an individual dealing cocaine on the streets of
Knoxville at the direction of a man later identified as defendant Martin.
Through additional wiretapping, the government learned that Martin, the organization’s
leader, had stash houses throughout Knoxville, each set up to sell a certain type of drug. Vernon
Jackson and Vincent Stanley lived in a house at 1919 Dodson, called the “wood house,” which was
set up to sell marijuana and Ecstasy. Matthew Orr lived in a house at 2750 Sunset, called the “crack
house,” which was set up to sell crack cocaine. Smith and defendant Brooks lived in a house at 1701
Rugby Avenue, called the “weight house,” which was set up to sell cocaine. Martin and his
girlfriend, defendant Hall, lived in a house at 3916 Deerfield, which the organization referred to as
“justice hall.” Martin supplied guns to members of the organization to protect the money and drugs
at each location.
At Martin’s direction, members of the organization obtained drugs from suppliers in Atlanta
and brought them back to Knoxville for resale. Smith would travel to Atlanta to purchase cocaine
from a man named Michael Briddy. Because Smith did not have a driver’s license, Hall or a woman
named Cassie McKenzie would drive him. Smith would travel to Atlanta at least twice a week,
picking up at least two kilograms of cocaine per trip.
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United States v. Martin, et al.
Jackson and Stanley would drive to Atlanta to purchase marijuana from a man named
Mashato Lamar. On April 24, 2007, a patrol officer stopped Jackson on the interstate for following
too closely. When the officer smelled raw marijuana, he had Jackson step out of the vehicle. In the
back seat, the officer found a backpack with a large, vacuum-sealed bag that had been cut open and,
although empty, smelled of raw marijuana. The backpack also contained roughly $14,000, which
the government seized.
Shortly thereafter, the government decided that it was time to intervene. The original plan
was to follow members of the organization on the next scheduled trip to Atlanta and arrest
individuals in the process of a drug transaction. It was soon learned, however, that Martin was
sending two cars to Atlanta, instead of one, with $85,000 split between the two cars. Having
recently lost $14,000 because of a traffic stop, the decision to send two cars was strategic; if the
police stopped one car, not all of the money would be taken. In light of the new travel arrangement,
the government decided to intervene in Knoxville, before the scheduled trip.
On May 3, 2007, the government executed a search warrant at each stash house. Smith,
Brooks, Hall, and Martin were arrested at 1701 Rugby Avenue. In the kitchen, officers arrested
Smith and found a firearm and two bags of cocaine. Ecstasy was found in the floor of the bedroom
and inside a pack of cigarettes in a vehicle parked outside. In a bedroom closet, agents found a set
of scales and a plastic bag containing cocaine. Hall was arrested in the living room, where a firearm
was found under a couch cushion. Martin fled out the back door, but he was eventually
apprehended. Approximately $6,000 was found on Martin’s person.
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United States v. Martin, et al.
Jackson and Stanley were arrested at 1919 Dodson, where agents seized currency, marijuana,
Ecstasy, scales, packaging equipment, firearms, receipts, and a drug ledger. Orr was arrested at 2750
Sunset, where crack cocaine, currency, and firearms were seized. A firearm was found in the
bedroom on top of the television. A second firearm was found on the pillow. A third gun was found
in the closet, along with several individually wrapped plastic bags of crack cocaine. In the kitchen
area, agents found a set of scales and a couple bags of crack cocaine. From inside a dresser in one
of the bedrooms, agents recovered a couple bags of marijuana and a set of scales.
No one was present at 3916 Deerfield, where agents seized marijuana, currency, and a
firearm. Agents observed that the closets in the master bedroom were full of male and female
clothing, and the toiletries in the bathroom suggested that both a man and a woman lived in the
house. Agents seized an amount of currency from a dresser drawer and a loaded firearm standing
between the night stand and the bed. They also found currency in the cold air return of the house and
marijuana in the closet of the room adjacent to the garage. The currency found in the house totaled
over $66,000.
Smith immediately agreed to cooperate, admitting his guilt and disclosing other participants.
Acting at the direction of government agents, Smith called Briddy and explained that several
members of the organization had been arrested but that he had not been caught. He told Briddy that
he was coming to Atlanta with money that Martin owed him. Having convinced Briddy of the story,
Smith accompanied agents to Atlanta the next day and set up a meeting with Briddy and Lamar. At
the meeting, agents apprehended Briddy and Lamar and seized marijuana and a firearm.
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Nos. 11-5592, 11-5888, 11-5893
United States v. Martin, et al.
Meanwhile, McKenzie, one of the individuals thought to be involved in the conspiracy, had
not been arrested, but had apparently been in contact with Martin. Allegedly, Martin told McKenzie
that he wanted Smith killed because “he snitched on him and got everybody locked up.” As it turns
out, before his arrest, Martin had recruited a man named Jason Nelson to help him address any
“problems” that arose in connection with the drug operation. Martin had given Nelson a gun with
instructions to ensure that no one interfered with drug sales or disrespected him. When Nelson
learned that Martin had been arrested, he contacted McKenzie, who told him that Martin wanted
Smith killed. Nelson purchased black clothing and gun wipes in preparation for the kill.
Having learned of the threat against Smith, agents set out to locate McKenzie and Nelson.
When an officer attempted to make a traffic stop of a vehicle being driven by Nelson in which
McKenzie was a passenger, the police were led on a high-speed car chase. Eventually, McKenzie
and Nelson were apprehended. From inside the vehicle, the police seized a firearm, cocaine,
Ecstasy, and currency.
On May 8, 2007, the government charged Martin, Brooks, Hall, and three other individuals
in an indictment, which was superseded on July 10, 2007, and further superseded on December 11,
2007. Martin was charged with conspiring to distribute and possess with intent to distribute at least
five kilograms of cocaine hydrochloride, at least fifty grams of crack cocaine, and quantities of
marijuana and Ecstasy (Count One); possessing with intent to distribute marijuana (Count Three);
possessing a firearm in furtherance of a drug trafficking crime (Counts Two and Four); possessing
a firearm as a convicted felon (Count Five); using a minor to commit a drug trafficking crime (Count
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United States v. Martin, et al.
Six); conspiring to commit money laundering and committing money laundering (Counts Fifteen and
Sixteen); and conspiring to kill a federal witness (Count Seventeen). Hall was charged with
conspiring to distribute and possess with intent to distribute at least five kilograms of cocaine
hydrochloride, at least fifty grams of crack cocaine, and quantities of marijuana and Ecstasy (Count
One); possessing with intent to distribute marijuana (Count Three); possessing a firearm in
furtherance of a drug trafficking crime (Counts Two and Four); and conspiring to commit money
laundering (Count Fifteen). Brooks was charged with conspiring to distribute and possess with
intent to distribute at least five kilograms of cocaine hydrochloride, at least fifty grams of crack
cocaine, and quantities of marijuana and Ecstasy (Count One); possessing with intent to distribute
500 grams or more of cocaine hydrochloride (Count Eight); possessing a firearm in furtherance of
a drug trafficking crime (Counts Seven and Nine); possessing a firearm as a convicted felon (Count
Ten); and conspiring to commit money laundering (Count Fifteen).
Martin’s first trial commenced on February 27, 2008. On March 10, 2008, a jury convicted
him of possessing a firearm as a convicted felon (Count Five), but could not reach a unanimous
decision regarding the remaining charges. Consequently, the district court declared a mistrial.
Martin’s second trial commenced on March 30, 2009. On April 7, 2009, a jury convicted Martin of
all charges except conspiring to kill a federal witness (Count Seventeen), for which he was acquitted.
On April 19, 2011, the district court sentenced Martin to 720 months’ imprisonment. Martin timely
appealed.
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Nos. 11-5592, 11-5888, 11-5893
United States v. Martin, et al.
A joint trial for Hall and Brooks commenced on June 8, 2009. The court dismissed the
charge of conspiring to commit money laundering (Count Fifteen) as to Brooks. A jury convicted
Hall and Brooks of all remaining charges. On July 8, 2011, the district court sentenced Hall and
Brooks to 548 months’ imprisonment. Both timely appealed. In the interest of judicial efficiency,
the three appeals have been consolidated for this court’s review.
II.
Martin and Hall argue that prosecutorial misconduct denied them a fair trial. We review
claims of prosecutorial misconduct de novo. United States v. Stover, 474 F.3d 904, 914 (6th Cir.
2007). Applying a two-step inquiry, if the court first determines that the prosecution’s conduct was
improper, it next determines whether the impropriety was flagrant. United States v. Carter, 236 F.3d
777, 783 (6th Cir. 2001). To determine whether an impropriety was flagrant, and therefore requires
reversal, the court considers and weighs four factors: “(1) whether the conduct and remarks of the
prosecutor tended to mislead the jury or prejudice the defendant; (2) whether the conduct or remarks
were isolated or extensive; (3) whether the remarks were deliberately or accidentally made; and (4)
whether the evidence against the defendant was strong.” Id. If the impropriety was not flagrant,
reversal is warranted only if “(1) the proof against the defendant was not overwhelming, (2) opposing
counsel objected to the conduct, and (3) the district court failed to give a curative instruction.”
United States v. Abboud, 438 F.3d 554, 584 (6th Cir. 2006) (internal quotations marks omitted).
When approaching these questions, we consider the context of the trial as a whole. United States
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United States v. Martin, et al.
v. Henry, 545 F.3d 367, 377 (6th Cir. 2008). Improper comments, standing alone, do not warrant
reversal if the proceedings were otherwise fair. Id.Where the defendant fails to object to the alleged misconduct, our review is for plain error.
United States v. Collins, 78 F.3d 1021, 1039 (6th Cir. 1996). Under plain-error review, a defendant
is required to show that: (1) an error occurred in the district court; (2) the error was plain; (3) the
error affected his substantial rights; and (4) the error seriously affected the fairness, integrity, or
public reputation of judicial proceedings. United States v. Kingsley, 241 F.3d 828, 835 (6th Cir.
2001). We will reverse “only in exceptional circumstances and only where the error is so plain that
the trial judge and prosecutor were derelict in countenancing it.” Collins, 78 F.3d at 1039 (internal
quotation marks omitted).
Martin alleges five instances of prosecutorial misconduct. He first complains that the
prosecutor improperly vouched for the credibility of a witness. “Improper vouching occurs when
a prosecutor . . . bluntly states a personal belief in a witness’s credibility . . . .” Henry, 545 F.3d at378–79. During rebuttal argument, the prosecutor told the jury, without objection, that Smith “was
untouched” during cross examination “because he was telling you the truth.” What Martin fails to
mention, however, is the credibility attack launched by defense counsel that preceded the
prosecutor’s allegedly improper remark. Just earlier, defense counsel had stated: “I promised you
that I would show you that every [convicted felon who testified on behalf of the government],
without exception, was lying in this case. I think you see that I also kept my word.” A prosecutor
“may attempt to explain why, based on the facts, that witness’s testimony is honest after the same
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United States v. Martin, et al.
has been attacked by the defense.” Id. at 379. Viewed in context, the prosecutor’s remark regarding
Smith’s credibility was a fair response to defense counsel’s earlier accusations that the government’s
witnesses were testifying falsely.
Second, Martin complains that the prosecutor asked if the jury had heard certain evidence
suggested by defense counsel and then stated, “Of course not, because it’s not true.” Defense
counsel objected, at which point the court clarified that it was “up to the jury to recall what the
evidence is and this is the opportunity for counsel for the parties during closing argument to discuss
with you what they believe the evidence in this case has shown.” In its final charge to the jury, the
court repeated the instruction that statements and arguments by attorneys are not evidence.
Therefore, even assuming that the prosecutor’s remark was improper, it is unlikely that the remark
misled the jury or resulted in prejudice, making reversal unwarranted. See Washington v. Hofbauer,
228 F.3d 698, 706 (6th Cir. 2000) (“[W]e must presume that juries follow their instructions.”).
Third, Martin complains that the prosecutor improperly characterized parts of defense
counsel’s closing argument as “ridiculous” and “border[ing] on the incredible.” The prosecutor also
commented on “the audacity” of defense counsel to say that it was not Martin talking in the
wiretapped conversation. Previously, however, defense counsel had characterized part of the
prosecutor’s argument as “[r]idiculous” and “totally unbelievable,” and accused the government of
“knowingly present[ing] false evidence.” Defense counsel further stated, referring to the
government, “They lied. They lied. They lied. (Banging the podium).” Under the “invited
response” rule, where the prosecutor’s remarks were “invited” and do no more than respond
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United States v. Martin, et al.
substantially in order to “right the scale,” the impropriety does not warrant reversal. Henry, 545 F.3d
at 381 (internal quotation marks omitted). Thus, although we do not condone the actions of either
counsel, where defense counsel has opened the door for the prosecutor to respond in opposition,
reversal is not an available remedy. See id.Martin next complains that the prosecutor engaged in misconduct when he told the jury that
“[i]f you believe a word of what counsel for the defendant just said, you believe I am going to risk
my career and my credentials as a Department of Justice employee for the United States government
to put an innocent man in jail?” The prosecutor stated that defense counsel would have the jury
believe that they were all “corrupt unethical criminal[s].” We are troubled by the prosecutor’s
reference to the Department of Justice and the United States government. A prosecutor may not
place the prestige of the government behind a witness or imply that he has special knowledge of facts
not before the jury by virtue of his office. Johnson v. Bell, 525 F.3d 466, 482 (6th Cir. 2008); United
States v. Francis, 170 F.3d 546, 550 (6th Cir. 1999). Thus, the instant remarks arguably smack of
improper vouching. Nonetheless, even if the prosecutor may have overstepped his bounds, it does
not necessitate reversal. Because Martin did not object and has not argued that the error affected his
substantial rights and seriously affected the fairness, integrity, or public reputation of judicial
proceedings, reversal is unwarranted. United States v. Jones, 108 F.3d 668, 672–73 (6th Cir. 1997)
(en banc).
In his last claim of prosecutorial misconduct, Martin argues that the prosecutor improperly
inflamed the jury’s emotions. In support of this position, he points to the prosecutor’s statements
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United States v. Martin, et al.
that “[Martin] gets a child . . . to peddle his poison on the streets” and “[i]f you are part of his
organization, don’t cross him, ladies and gentlemen, because then he dispatches somebody to kill
you.” Defense counsel did not contemporaneously object to these comments. “Generally, a
prosecutor cannot make statements calculated to incite the passions and prejudices of the jurors.”
Wogenstahl v. Mitchell, 668 F.3d 307, 333 (6th Cir. 2012) (internal quotation marks omitted). A
prosecutor “may not urge jurors to identify individually with the victims” or suggest “that if they do
not convict, a crime wave or some other calamity will consume their community.” Bedford v.
Collins, 567 F.3d 225, 234 (6th Cir. 2009). Nonetheless, a prosecutor is permitted to reference the
evidence admitted at trial and ask the jury to draw reasonable inferences from it. Id. Here, the
record contains evidence that Martin did, in fact, utilize a minor in his drug-trafficking business and
conspire to kill a government witness who implicated him in the charged crimes. Further, assuming
that the reference to “you” was improper, the remarks were not sufficiently flagrant to warrant
reversal. In this regard, the remarks did not tend to mislead the jury, they were not extensive
considering the defense counsel’s line of argumentation, and the evidence of Martin’s guilt was
strong. In context, we conclude that the prosecutor’s remarks did not affect Martin’s substantial
rights.
Hall claims three instances of prosecutorial misconduct. First, she argues that it was
improper for the prosecutor to tell her that she would face additional criminal charges if she did not
plead guilty quickly. This argument lacks merit. As the United States Supreme Court has explained,
“[d]efendants advised by competent counsel and protected by other procedural safeguards are
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presumptively capable of intelligent choice in response to prosecutorial persuasion, and unlikely to
be driven to false self-condemnation.” Bordenkircher v. Hayes, 434 U.S. 357, 363 (1978). Although
a defendant presented with the risk of a more severe punishment faces a difficult choice, this is
permissible as a reality in any “legitimate system which tolerates and encourages the negotiation of
pleas.” Id. at 364. “[S]o long as the prosecutor has probable cause to believe that the accused
committed an offense defined by statute, the decision whether or not to prosecute, and what charge
to file or bring before a grand jury, generally rests entirely in his discretion.” Id. As here, where the
prosecutor simply presented Hall “with the unpleasant alternatives of forgoing trial or facing charges
on which [s]he was plainly subject to prosecution,” her constitutional rights were not offended. Id.Plea negotiations are not vindictive where, as here, the accused has not alleged, much less proved,
that she was deprived of her ability to accept or reject the prosecutor’s offer. Id.Hall’s next claim of misconduct relates to the admissibility of incriminating statements that
she made to police following her arrest. At a motion hearing, the prosecutor indicated that he did
not intend to use those statements in its case-in-chief. In response, Hall withdrew her motion to
suppress the statements, apparently on the mistaken belief that the statements could not be used for
any purpose. When she later sought to bar the government from using her statements for any
purpose, the government responded that even illegally obtained statements could be used to impeach
her should she testify inconsistently with those statements at trial. Although Hall may have
misinterpreted the government, the record clearly shows that the government’s only promise was not
to use the statements in its case-in-chief. To the extent that Hall misunderstood this to mean that the
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government promised not to use the statements at all, her mistaken belief is in no way attributable
to the prosecutor and is not evidence of misconduct.
Lastly, Hall complains that the prosecutor engaged in misconduct when he insisted, less than
two weeks before trial, that any plea agreement be conditioned on Brooks also pleading guilty. The
United States Supreme Court has not squarely addressed this type of “package deal” scenario. See
Bordenkircher, 434 U.S. at 365 n.8 (noting that “a prosecutor’s offer during plea bargaining of
adverse or lenient treatment for some person other than the accused . . . might pose a greater danger
of inducing a false guilty plea by skewing the assessment of the risks a defendant must consider”).
The position in this court, however, is that “there is no hard and fast rule against the government’s
predicating a guilty plea on the government’s lenient treatment of persons other than the accused,”
and “the government may properly condition any plea in a case upon all defendants pleading guilty.”
United States v. Carpenter, 25 F. App’x 337, 343–44 (6th Cir. 2001). Moreover, as the First Circuit
has explained, “[t]he difficulty with ‘package deal’ plea offers is not the fear that a defendant . . . will
be ‘forced’ to go to trial. Rather, it is the opposite fear that the defendant will involuntarily waive
his right to a jury trial because his codefendants will coerce him to accept the plea agreement.”
United States v. Gonzalez-Vazquez, 219 F.3d 37, 43 (1st Cir. 2000). The concern associated with
the “package deal” simply has no application here, since Hall did not waive her constitutional right
and did go to trial. See id. Indeed, “there is no constitutional right to plea bargain; the prosecutor
need not do so if he prefers to go to trial.” Weatherford v. Bursey, 429 U.S. 545, 561 (1977).
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Because no constitutional right was compromised, Hall’s refusal to accept the package deal offered
by the prosecutor is not grounds for a new trial.
III.
Martin and Brooks argue that a variance of the indictment denied them a fair trial. We
review de novo whether a variance has occurred. United States v. Robinson, 547 F.3d 632, 642 (6th
Cir. 2008). Viewing the evidence in the light most favorable to the government, reversal of a
conviction is warranted only if a variance occurred and affected the defendant’s substantial rights.
United States v. Swafford, 512 F.3d 833, 841 (6th Cir. 2008). Where the issue is raised for the first
time on appeal, however, reversal requires a showing of plain error; the defendant must show that
the variance affected the outcome of the district court proceedings. Id.A variance exists “[i]f an indictment alleges one conspiracy, but the evidence can reasonably
be construed only as supporting a finding of multiple conspiracies.” United States v. Warner, 690
F.2d 545, 548 (6th Cir. 1982) (emphasis added). “The principal considerations in determining the
number of conspiracies are the existence of a common goal, the nature of the scheme, and the
overlapping of the participants in various dealings.” United States v. Smith, 320 F.3d 647, 652 (6th
Cir. 2003).
For the first time in this appeal, Martin argues that the evidence proved two unrelated drug
conspiracies, one involving cocaine and the other involving marijuana. According to Martin,
combining the separate conspiracies into a single offense in the indictment was prejudicial because
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it made it difficult for him to determine the prosecution’s theory of the case and prevented the jury
from returning a partial acquittal.
It is true that the marijuana and cocaine were supplied by different individuals, but there were
times when both drugs were supplied at the same location in Atlanta, and both drugs were
transported to Knoxville for resale. Further, the fact that a large-scale drug-trafficking operation
involves a web of individuals, each performing a particular role, does not insulate each participant
from knowing the grander scheme or prevent them from sharing in the common goal of maintaining
and furthering a profitable business. In this case, viewing the evidence in the light most favorable
to the government “does not exclude the possibility” that the transactions of cocaine and marijuana
were part of a cohesive operation to traffic drugs between Atlanta and Knoxville for financial gain.
United States v. Caver, 470 F.3d 220, 236 (6th Cir. 2006).
Even assuming that a variance occurred, the variance did not prejudice Martin. Prejudice
may be found where (1) the defendant is taken by surprise by the evidence presented at trial because
of the degree of the variance or (2) the variance carries the risk that guilt will be transferred from the
defendants involved in one conspiracy to the defendants involved in another conspiracy. United
States v. Budd, 496 F.3d 517, 527 (6th Cir. 2007); Caver, 470 F.3d at 237. In this case, neither basis
of prejudice is shown. Martin was tried alone, and, assuming the existence of two separate
conspiracies, the evidence overwhelmingly implicated him in both. Accordingly, reversal is
unwarranted on this ground.
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In a similar argument, Brooks complains that the indictment charged him in connection with
the Georgia-Tennessee conspiracy, but the government’s proofs included testimony regarding events
occurring in Mississippi, which he argues is a separate conspiracy. At trial, the government called
a man named Tony Manning, who testified that he bought and sold drugs in Mississippi and Martin
had sent Brooks to Mississippi to work for Manning. Smith testified that Brooks moved into the
house on Rugby Avenue when he returned from Mississippi. Brooks argues that the government
used the testimony regarding the Mississippi operation in hopes that it would bolster its case and
further persuade the jury to convict him for the conspiracy charge set out in the indictment.
The Mississippi operation involving Manning does not appear to be connected in any
significant way to the Georgia-Tennessee conspiracy headed by Martin, aside from Brooks being a
common player. Thus, Brooks’s claim that the government’s proofs amounted to a variance from
the indictment is well-founded. Nonetheless, he has not demonstrated prejudice. This is not a
situation involving risk that guilt in a conspiracy for which Brooks was not involved would be
transferred to him—the evidence implicated Brooks in both conspiracies. Any risk of prejudice was
further stymied by the court’s instructions to the jury. The jury was told that they were to decide
whether to convict Brooks based on his actions and not the actions of others. The jury was also
instructed regarding the difference between single and multiple conspiracies and its duty not to
convict a defendant unless he or she participated in the charged conspiracy. A jury is presumed to
follow its instructions. Hofbauer, 228 F.3d at 706.
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Brooks also complains that the language of the indictment charged him for crimes occurring
“on or about May 3, 2007,” but the government’s proofs extended to other dates. Because Brooks
failed to preserve this issue, our review is limited to plain error. United States v. Beasley, 583 F.3d
384, 389 (6th Cir. 2009). “Where ‘on or about’ language is used, the government is not required to
prove the exact date, if a date reasonably near is established. This is especially true where . . . the
exact time when an offense was committed is not an essential element of the offense charged.”
United States v. Nersesian, 824 F.2d 1294, 1323 (2d Cir. 1987) (internal citation and quotation
marks omitted); see United States v. Ford, 872 F.2d 1231, 1236 (6th Cir. 1989). In this case, the
government presented evidence that Brooks possessed firearms in April 2007, which is “reasonably
near” May 3, 2007. And the exact time is not an essential element of being a felon in possession of
a firearm. United States v. Haas, 35 F. App’x 149, 153 (6th Cir. 2002). Although we think that the
indictment could have been more precise, we cannot say that the “on or about” language amounted
to plain error affecting Brooks’s substantial rights.
IV.
The next issue, raised by all defendants, is whether the indictment improperly charged them
with two offenses under 18 U.S.C. § 924(c). In essence, defendants argue that the indictment
allowed the jury to convict them twice based on the same firearm and possession conduct in
violation of the protection against double jeopardy.
This argument fails because the two § 924(c) counts were predicated on two separate
offenses: (1) conspiracy to possess with intent to distribute marijuana and other drugs and (2)
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possession with intent to distribute marijuana. A substantive crime and a conspiracy to commit that
crime are not the “same offense” for double jeopardy purposes; each requires proof of an element
not required by the other. See United States v. Barrett, 933 F.2d 355, 361 (6th Cir. 1991) (explaining
that a conspiracy requires an agreement to commit a crime but does not require an overt act).
Further, because the focus of double jeopardy is on “the statutory elements of the charged offenses,
not the transaction which gives rise to the charged offenses,” the imposition of multiple punishments
in connection with the same firearm and possession conduct is permitted. Id.Martin relies on United States v. Ehle, 640 F.3d 689, 695 (6th Cir. 2011), which held that
possessing and receiving pornography constitute the same offense for double jeopardy purposes,
since one cannot receive pornography without possessing it. However, that principle does not apply
here, where the two offenses at issue are not the same. Barrett, 933 F.2d at 361. Martin also relies
on United States v. Leichtnam, 948 F.2d 370, 380–81 (7th Cir. 1991), in which the Seventh Circuit
held that introducing additional handguns into evidence impermissibly broadened the scope of the
indictment, which referenced a specific firearm, a Mossberg rifle. Here, however, the language
charging defendants with two violations of 18 U.S.C. § 924 is not limited to a particular firearm and
the government did not introduce firearms clearly outside the scope of the indictment, making
Leichtnam inapposite. In short, the evidence adequately supports the conclusion that defendants
possessed “a firearm” in furtherance of two separate drug-trafficking offenses.
All defendants rely on United States v. Johnson, 25 F.3d 1335, 1338 (6th Cir. 1994) (en
banc), where this court stated that “possession of one or more firearms in conjunction with predicate
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offenses involving simultaneous possession of different controlled substances should constitute only
one offense under § 924(c)(1).” Johnson is distinguishable because the defendant there was
convicted of two firearm offenses predicated on two possession crimes, not a possession crime and
a conspiracy crime. Id. In this case, only one § 924(c) charge was predicated on possession with
intent to distribute an illegal substance; the other was predicated on a conspiracy to possess with
intent to distribute an illegal substance. Further, the predicate crimes here did not occur
simultaneously. The possession was alleged to have occurred on a particular date, whereas the
conspiracy was alleged to have occurred over a period of time. Thus, no error occurred.
V.
We next address whether the indictment failed to charge Martin with a federal offense of
money laundering. Whether a charge in an indictment is defective or duplicitous is generally
reviewed de novo. United States v. Kakos, 483 F.3d 441, 443 (6th Cir. 2007); United States v. Lloyd,
462 F.3d 510, 513 (6th Cir. 2006). However, because Martin failed to challenge the indictment
before trial or object to the jury instructions, our review is limited to plain error affecting his
substantial rights. Kakos, 483 F.3d at 445.
Martin claims that Count Fifteen of the indictment erroneously set forth “a hybrid charge”
of promotion money laundering and concealment money laundering, which he claims is a non-
existent offense. The federal money laundering statute, 18 U.S.C. § 1956(a)(1), prohibits financial
transactions involving the proceeds of specified unlawful activity where the transaction was designed
either (1) “to promote the carrying on of specified unlawful activity” or (2) “to conceal or disguise
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United States v. Martin, et al.
. . . the proceeds of specified unlawful activity.” 18 U.S.C. § 1956(a)(1)(A)(i), (B)(i). “These are
alternative bases for a money laundering conviction; proof of intent to accomplish either will
suffice.” United States v. Westine, No. 92-3664, 1994 U.S. App. LEXIS 5144, 1994 WL 88831, at
*2 (6th Cir. Mar. 17, 1994) (per curiam). “[W]here a penal statute . . . prescribes several alternative
ways in which the statute may be violated and each is subject to the same punishment, . . . the
indictment may charge any or all of the acts conjunctively, in a single count . . . .” United States v.
Hixon, 987 F.2d 1261, 1265 (6th Cir. 1993) (internal quotation marks omitted). Count Fifteen
charged Martin with a single federal offense (money laundering), which could be proved under either
of two alternative theories (promotion money laundering or concealment money laundering).
Accordingly, Count Fifteen was not defective.
Martin’s reliance on United States v. Combs, 369 F.3d 925 (6th Cir. 2004), is misplaced.
Combs addressed the issue whether 18 U.S.C. § 924(c) “sets forth two separate offenses or simply
specifies alternative means for committing the same offense.” Id. at 930. Based on the statutory
text, legislative history, and differing proof required under the two prongs of the statute, the court
concluded that § 924(c) criminalizes two separate offenses—“(1) using or carrying a firearm during
and in relation to a drug trafficking crime, and (2) possessing a firearm in furtherance of a drug
trafficking crime.” Id. at 931. Critically, the reason that the charge in Combs failed to state a federal
offense is because it intermixed elements of the two crimes. Id. at 934. By charging the defendant
with “possessing a firearm during and in relation to” a drug trafficking crime, the government
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United States v. Martin, et al.
mismatched the conduct of the first crime (“possessing”) with the standard of participation of the
second crime (“during and in relation to”), without fully charging either offense. Id.
In this case, however, the government did not mismatch elements of promotion money
laundering with elements of concealment money laundering. Rather, the indictment charged Martin
with promotion money laundering and concealment money laundering conjunctively, meaning that
Martin could be convicted of money laundering, a single federal offense, upon proof of either
alternative theory. Accordingly, Count Fifteen of the indictment stated a cognizable federal offense.
In a related argument, Martin argues that Count Fifteen was duplicitous. “An indictment is
duplicitous if it sets forth separate and distinct crimes in one count.” United States v. Davis, 306
F.3d 398, 415 (6th Cir. 2002). An indictment is not duplicitous, however, if it alleges multiple
means of committing a single offense in one count. United States v. Damrah, 412 F.3d 618, 622 (6th
Cir. 2005). Whether §§ 1956(a)(1)(A)(i) and (a)(1)(B)(i) are separate and distinct crimes or simply
multiple means of committing a single offense is an issue of first impression in this court.
Although not directly on point, Westine sheds some light on the subject. In Westine, in the
context of a sufficiency-of-the-evidence claim, this court characterized the subsections as
“alternative bases for a money laundering conviction.” Westine, 1994 WL 88831, at *2. Further,
a majority of other circuits addressing the issue have concluded that the subsections do not establish
separate crimes but rather set forth two alternative bases for committing money laundering. See
United States v. Seher, 562 F.3d 1344, 1361 (11th Cir. 2009); United States v. Garcia-Torres, 341
F.3d 61, 65–66 (1st Cir. 2003); United States v. Bolden, 325 F.3d 471, 487 n.19 (4th Cir. 2003);
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United States v. Martin, et al.
United States v. Booth, 309 F.3d 566, 571–72 (9th Cir. 2002); United States v. Meshack, 225 F.3d
556, 580 n.23 (5th Cir. 2000), reh’g granted on other grounds, 244 F.3d 367 (5th Cir. 2001); United
States v. Navarro, 145 F.3d 580, 590–92 (3d Cir. 1998); United States v. Holmes, 44 F.3d 1150,
1155–56 (2d Cir. 1995).
Moreover, § 1956(a)(1) is not duplicitous if we apply an analysis similar to that employed
in Combs. Combs analyzed § 924(c), which provides in pertinent part: “any person who, during and
in relation to any crime of violence or drug trafficking crime . . . uses or carries a firearm, or who,
in furtherance of any such crime, possesses a firearm” shall be guilty of a crime. The court first
observed that the statute was divided into two dependent clauses separated by a disjunctive “or.”
Combs, 369 F.3d at 931. Each clause contained its own relative pronoun (“who”) with its own
modifying phrase (“during and in relation to” and “in furtherance of”). Id. Second, the court
observed that an earlier version of the statute prohibited only “using or carrying a firearm during and
in relation to” a drug-trafficking crime. Id. at 932. Congress modified the statute by adding the
phrase, “possess a firearm in furtherance of the crime.” According to the court, the congressional
amendment was intended to delineate a new offense prohibiting mere “possession” of a firearm (a
lower standard than “use”) if “in furtherance of” a drug-trafficking crime (a higher standard than
“during and in relation to” a drug-trafficking crime). Id. Lastly, the court considered it significant
that different proofs are required depending on which firearm offense is alleged—“using or
carrying . . . during and in relation to” a drug-trafficking crime or “possession . . . in furtherance of”
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a drug-trafficking crime. Id. at 932–33. For these reasons, the court concluded that the statute
criminalized two distinct offenses. Id. at 933.
The statute at issue in this case, § 1956(a)(1), provides in pertinent part:
Whoever, knowing that property involved in a financial transaction represents the
proceeds of some form of unlawful activity, conducts or attempts to conduct such a
financial transaction . . . with the intent to promote the carrying on of specified
unlawful activity [promotional money laundering]; or . . . knowing that the
transaction is designed in whole or in part . . . to conceal or disguise the nature, the
location, the source, the ownership, or the control of the proceeds of specified
unlawful activity [concealment money laundering]
shall be guilty of a crime. By contrast to the text at issue in Combs, the two dependent clauses that
comprise § 1956(a)(1) modify the same relative pronoun (“whoever”). Further, whereas the statute
in Combs contained two types of conduct (“use” and “possession”) and two standards of
participation (“during and in relation to” and “in furtherance of”), here, the same conduct (“conducts
or attempts to conduct such a financial transaction”) and standard of participation (“knowing that
property involved in the financial transaction represents the proceeds of some form of unlawful
activity”) apply to both types of money laundering; only the purpose of the money laundering is
differentiated (“to promote the carrying on of specified unlawful activity” or “to conceal . . . the
proceeds of specified unlawful activity”). These features of the statute distinguish it from § 924(c)
and support the prevailing view that §§ 1956(a)(1)(A)(i) and (B)(i) are multiple means of committing
the single offense of money laundering. Therefore, they may be charged in a single count, as was
done here.
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VI.
We next address whether alleged sequestration violations resulted in an unfair trial for Martin
or Hall. Following their convictions, both Martin and Hall filed motions for a new trial on the
ground that the government improperly allowed its witnesses to coordinate their testimony while
waiting in the courthouse holding cells, in violation of Federal Rule of Evidence 615. Rule 615
provides: “At a party’s request, the court must order witnesses excluded so that they cannot hear
other witnesses’ testimony. Or the court may do so on its own.” “The statutory purpose of the rule
requiring sequestration of witnesses is to preclude coaching or the influencing of a witness’
testimony by another witness.” United States v. Rugiero, 20 F.3d 1387, 1392 (6th Cir. 1994). The
district court denied both motions.
We review a district court’s sequestration decision for an abuse of discretion. United States
v. Solorio, 337 F.3d 580, 592 (6th Cir. 2003); Rugiero, 20 F.3d at 1394. A new trial is only
warranted if it is determined that the error prejudiced the defendant’s right to a fair trial. Rugiero,
20 F.3d at 1394.
Our sister circuits are divided regarding whether Rule 615 extends beyond the courtroom.
Compare, e.g., United States v. Sepulveda, 15 F.3d 1161, 1176 (1st Cir. 1993) (concluding that the
mandate of Rule 615 is limited to “the courtroom proper” but “leaves appreciable room for judicial
innovation beyond the perimeters of that which the rule explicitly requires”), with United States v.
Prichard, 781 F.2d 179, 183 (10th Cir. 1986) (“[A] sequestration order pursuant to Fed. R. Evid. 615
requires not only that witnesses be excluded from the courtroom, but that witnesses also refrain from
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United States v. Martin, et al.
discussing their testimony outside the courtroom.”). And although this court is yet to take a position,
see Solorio, 337 F.3d at 593; Rugiero, 20 F.3d at 1394, on the record before us, we find it
unnecessary to resolve the issue today.
“[V]iolation of an order directing that witnesses be sequestered does not automatically bar
a witness’ testimony.” United States v. Gibson, 675 F.2d 825, 835–36 (6th Cir. 1982). Excluding
testimony is only warranted in “particular circumstances” where there “are indications that the
witness has remained in court with the consent, connivance, procurement or knowledge of the party
seeking the testimony.” Id. at 836 (internal quotation marks omitted). Thus, even assuming a
sequestration violation, Martin and Hall have not alleged facts to support their assertion that the
government consented to or had knowledge of the witnesses’ coordination of testimony.
They have also failed to demonstrate prejudice. First, the two affidavits that they filed do not
indicate what testimony was allegedly coordinated, only that testimony was coordinated. See United
States v. O’Dell, 805 F.2d 637, 640 (6th Cir. 1986) (explaining that newly discovered evidence must
be “material” to warrant a new trial). In addition, the jury listened to countless wiretapped
conversations and was presented with the firearms, drugs, currency, and other contraband seized
during the execution of the search warrants. This evidence fully corroborated the testimony that
Martin and Hall now claim was coordinated. See id. (explaining that newly discovered evidence
must be likely to produce an acquittal to warrant a new trial). Accordingly, the district court properly
denied their motions for a new trial.
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VII.
Martin argues that the district court improperly equated his request for a sentencing variance
to a request for a downward departure. We review unpreserved sentencing issues for plain error.
See United States v. Vonner, 516 F.3d 382, 385 (6th Cir. 2008) (en banc).
As Martin correctly observes, a departure is distinct from a variance:
A Guidelines “departure” refers to the imposition of a sentence outside the advisory
range or an assignment of a criminal history category different than the otherwise
applicable category made to effect a sentence outside the range. Importantly, a
departure results from the district court’s application of a particular Guidelines
provision, such as § 4A1.3 or § 5, Part K. A “variance” refers to the selection of a
sentence outside of the advisory Guidelines range based upon the district court’s
weighing of one or more of the sentencing factors of § 3553(a).
United States v. Grams, 566 F.3d 683, 686–87 (6th Cir. 2009) (per curiam) (internal citations
omitted).
Here, the district court sensibly construed Martin’s request as seeking both a Guidelines
departure and a sentencing variance, and it assessed Martin’s arguments in the same manner that he
presented them. The court first considered the factors set forth in § 3553(a) for determining the
appropriateness of a variance. It also considered sections of the sentencing Guidelines relevant to
Martin’s request for a downward departure. The court’s analysis was thorough and touched upon
each and every one of Martin’s bases for a departure or variance, including his assistance to fellow
inmates and the conditions of his confinement. Finding neither a departure nor a variance
appropriate, the court imposed a within-Guidelines sentence.
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When reviewing a sentence for procedural reasonableness, the question for this court is
limited to whether the district court neglected to consider the applicable Guidelines range or the
factors listed in § 3553(a) and instead selected a sentence it deemed appropriate without such
consideration. United States v. Martinez, 588 F.3d 301, 325 (6th Cir. 2009). Having reviewed the
district court’s analysis, no such neglect is discernable in this case. Martin’s claim that the court
improperly applied the standard for a departure when analyzing his request for a variance is simply
unsupported; the court’s analysis includes a discussion of each standard. Further, the same facts and
analyses may be relevant to a determination whether either request is appropriate. See Grams, 566
F.3d at 686 (reasoning that “the same facts and analyses can, at times, be used to justify both a
Guidelines departure and a variance”). Accordingly, Martin is not entitled to resentencing.
VIII.
Martin next argues that the district court improperly relied on acquitted conduct when
sentencing him. Specifically, Martin complains that the district court enhanced his sentence based
on its finding that he conspired to kill a government witness, a charge for which the jury acquitted
him. Sentencing decisions are reviewed for an abuse of discretion. Gall v. United States, 552 U.S.
38, 46 (2007). To the extent that Martin’s challenge raises legal questions, those issues are reviewed
de novo. See United States v. Johnson, 569 F.3d 619, 623 (6th Cir. 2009).
Martin first argues that the court’s reliance on acquitted conduct to increase his sentence
violated his right to a jury trial under the Sixth Amendment. As he concedes, however, this court
has already considered and rejected that argument. United States v. White, 551 F.3d 381, 385 (6th
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United States v. Martin, et al.
Cir. 2008) (en banc). In White, this court held that, “[s]o long as the defendant receives a sentence
at or below the statutory ceiling set by the jury’s verdict, the district court does not abridge the
defendant’s right to a jury trial by looking to other facts, including acquitted conduct, when selecting
a sentence within that statutory range.” Id.Alternatively, Martin argues that his sentence enhancement was improper under United States
v. Worex, 420 F. App’x 546, 550 (6th Cir. 2011), an unpublished and therefore not precedentially-
binding decision in which this court held that “the district court may consider uncharged conduct for
sentencing purposes” only if found “by a preponderance of the evidence.” Unlike in Worex,
however, the district court in this case did find by a preponderance of the evidence that Martin
attempted to have Smith killed. Accordingly, his reliance on Worex is misplaced, and resentencing
is unwarranted.
IX.
We next consider whether the district court erred when it rejected Martin’s and Brooks’s
challenges to the government’s use of peremptory challenges and the composition of the jury venire
under Batson v. Kentucky, 476 U.S. 29 (1986). “We review a district court’s determination of a
Batson challenge with ‘great deference,’ under a clearly erroneous standard.” United States v.
Copeland, 321 F.3d 582, 599 (6th Cir. 2003) (quoting United States v. Buchanan, 213 F.3d 302,
308–09 (6th Cir. 2000)).
With regard to the use of peremptory challenges, this court has explained:
[A] prosecutor is precluded from exercising a peremptory challenge on the basis of
race. Under Batson, once the opponent of a peremptory challenge has made out a
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prima facie case of racial discrimination, the burden shifts to the government to
demonstrate a race-neutral reason for the exclusion of the juror. The government is
not required to persuade the court that its reasons for dismissing the juror were
well-founded; rather, it need only demonstrate that its reasons were race-neutral.
Once the government offers a race-neutral justification, the challenging party must
demonstrate that the purported explanation is merely a pretext for a racial motivation.
The burden of persuasion always rests with the opponent of the strike.
Id. (internal citations and quotation marks omitted).
On appeal, Martin complains that the district court improperly relied on the fact that the
government did not strike all of the African-Americans from the jury panel. Martin is correct that
“‘the presence of one African-American on the jury does not preclude a Batson challenge.’” United
States v. Torres-Ramos, 536 F.3d 542, 558 (6th Cir. 2008) (quoting United States v. Harris, 192 F.3d
580, 587 (6th Cir. 1999)). What he fails to mention, however, is that his Batson challenge was not
precluded based on the presence of one African-American on the jury. Rather, the district court
assumed that Martin established a prima facie case and proceeded to the second step of the Batson
analysis, in which the government was required to proffer race-neutral reasons for its use of
peremptory challenges. The court found that the government met this burden. Once “the trial court
has heard and ruled on the prosecution’s asserted race neutral justification, ‘the issue of whether the
defendant made a sufficient prima facie showing becomes moot.’” United States v. Simon, 422 F.
App’x 489, 494 (6th Cir. 2011) (quoting United States v. Tucker, 90 F.3d 1135, 1142 (6th Cir.
1996)). Thus, Martin’s claimed error at the initial step of the analysis (establishing a prima facie
case) is not properly before this court, and Martin does not argue that the remainder of the district
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Nos. 11-5592, 11-5888, 11-5893
United States v. Martin, et al.
court’s Batson analysis improperly relied on the fact that one African-American remained on the
jury. Accordingly, remand on this issue is unwarranted.
Brooks argues that the district court erred in denying his Batson challenge because the
government’s race-neutral reason for excluding the only African-American juror was pretextual. The
race-neutral reasons proffered by the government for excluding a juror were that she did not appear
to understand the questions that were posed to her and might have difficulty reviewing the evidence
impartially given that her grandson had been convicted of a drug offense in the same federal district
court. These are undeniably race-neutral justifications, and, at this point, Brooks acknowledges that
the burden shifted back to him to prove pretext. Yet, aside from the fact that the only excluded juror
was African-American, Brooks fails to offer any evidence that the government’s proffered
justifications were racially motivated. Accordingly, Brooks did not carry his burden with regard to
pretext, and his challenge was properly denied.
Both Martin and Brooks challenge the composition of the jury venire. In order to establish
a prima facie violation of the fair-cross-section requirement, the defendant must show that (1) the
group alleged to be excluded is a “distinctive” group in the community; (2) the representation of this
group in venires from which juries are selected is not fair and reasonable in relation to the number
of such persons in the community; and (3) the underrepresentation is due to systematic exclusion of
the group in the jury-selection process. United States v. Odeneal, 517 F.3d 406, 412 (6th Cir. 2008)
(internal quotations omitted). Because Martin and Brooks “failed to produce any evidence that the
under-representation of blacks in his jury venire resulted from systematic exclusion,” they did not
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United States v. Martin, et al.
establish a prima facie case. United States v. Clark, 112 F. App’x 481, 486 (6th Cir. 2004) (per
curiam), vacated on other grounds, 545 U.S. 1101 (2005). Thus, the district court properly denied
their claims.
X.
Martin and Hall challenge the sufficiency of the evidence against them, which we review de
novo. United States v. Humphrey, 279 F.3d 372, 378 (6th Cir. 2002). Viewing the evidence in the
light most favorable to the prosecution, the question is whether a rational juror could have found
each element of the offense beyond a reasonable doubt. United States v. Gooding, 351 F.3d 738, 740
(6th Cir. 2003).
To support a conviction under 21 U.S.C. § 861(a), as an essential element, the government
must prove that the defendant was at least eighteen years old at the time of the offense. Martin
claims that the record is devoid of any substantive proof of his age. He is incorrect. Two pieces of
documentary evidence introduced at trial list Martin’s date of birth. Accordingly, a reasonable juror
could have concluded that Martin was over the age of eighteen at the time of the offense.
Hall argues that the evidence was insufficient to show that she possessed a firearm in
furtherance of a drug trafficking crime for purposes of § 924(c). As this court has explained:
In light of Congress’ intent that “in furtherance of” be a more stringent requirement
than “during and in relation to,” we emphasize that the possession of a firearm on the
same premises as a drug transaction would not, without a showing of a connection
between the two, sustain a § 924(c) conviction. In order for the possession to be in
furtherance of a drug crime, the firearm must be strategically located so that it is
quickly and easily available for use. Other factors that may be relevant to a
determination of whether the weapon was possessed in furtherance of the crime
include whether the gun was loaded, the type of weapon, the legality of its
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United States v. Martin, et al.
possession, the type of drug activity conducted, and the time and circumstances under
which the firearm was found. The list of factors is not exclusive, but it helps to
distinguish possession in furtherance of a crime from innocent possession of a
wall-mounted antique or an unloaded hunting rifle locked in a cupboard.
United States v. Mackey, 265 F.3d 457, 462 (6th Cir. 2001) (internal citations omitted).
Here, agents recovered an assault rifle next to the bed shared by Hall and Martin. The
firearm was not tucked away inside a drawer or cabinet, but was out in the open and readily available
for use. The record also contains evidence that Martin provided the individuals involved in the
drug-trafficking operation with firearms, creating a “specific nexus” between the firearms and the
crimes. Id. at 462. Hall was involved in the drug-trafficking operation, often serving as a driver.
The evidence suggests that she was knowledgeable of and exposed regularly to firearms, drugs, and
proceeds from drug sales. It is not essential that Hall actually possessed a firearm, since constructive
possession is sufficient. Based on the evidence, “a reasonable jury could infer that the purpose of
the firearm was to provide defense or deterrence in furtherance of the drug trafficking.” Id. at
462–63. At minimum, the evidence would allow a reasonable juror to conclude that Hall aided and
abetted Martin in his possession of a firearm in furtherance of a drug-trafficking crime, as charged
in the indictment.
Hall also challenges her convictions of conspiracy, possession with intent to distribute
marijuana, and money laundering. To support a conviction of conspiracy to violate the drug laws,
the government was required to prove that Hall agreed to violate the drug laws and knowingly and
intentionally joined and participated in the conspiracy. United States v. Martinez, 430 F.3d 317, 330
(6th Cir. 2005). With regard to the charge of possession with intent to distribute marijuana, the court
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United States v. Martin, et al.
instructed the jury that it could convict Hall only if it found that she knowingly and intentionally
possessed a substance that she knew to be marijuana and intended to distribute it. To support a
conviction of money laundering (specifically, promotional money laundering), the government was
required to show that Hall “(1) conducted a financial transaction that involved the proceeds of
unlawful activity; (2) knew the property involved was proceeds of unlawful activity; and (3) intended
to promote that unlawful activity.” United States v. Haun, 90 F.3d 1096, 1100 (6th Cir. 1996).
Viewing the evidence in the light most favorable to the government, Hall drove Martin and
other coconspirators to Atlanta to purchase drugs for resale in Knoxville; she was present during
several drug transactions; she accepted drug proceeds, kept transactional records, and made deposits
on behalf of the organization; she personally obtained marijuana; and individually-packaged bags
of marijuana were seized from the residence she shared with Martin. The numerous wiretapped
conversations confirm Hall’s knowing and intentional participation in the crimes charged.
Accordingly, the government presented sufficient evidence from which a rational trier of fact could
find the essential elements of the crimes beyond a reasonable doubt.
Finally, we reject Hall’s arguments that she lacked the requisite state of mind to commit the
offenses because she “did only as Martin directed her to do.” Hall may not evade responsibility for
her actions by portraying herself as a physically helpless and vulnerable victim of Martin’s
manipulation. Her assertion that the only way she could support herself and her minor child was to
partake in Martin’s drug-trafficking operation is not worthy of belief. Hall knowingly participated
in criminal activity and is accountable for her actions.
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XI.
Hall and Brooks argue that imposing consecutive sentences for their two convictions under
18 U.S.C. § 924(c) constitutes cruel and unusual punishment. We review de novo whether a
sentence is cruel and unusual in violation of the Eighth Amendment. United States v. Caver, 470
F.3d 220, 247 (6th Cir. 2006).
Under the “narrow proportionality principle,” an Eighth Amendment violation will be found
only in the limited case of an “extreme disparity” between the crime committed and the sentence
imposed. United States v. Moore, 643 F.3d 451, 454–55 (6th Cir. 2011). The Eighth Amendment
does not require strict proportionality or consideration of mitigating factors. Id. at 454. The court
is also mindful that “[a] sentence within the statutory maximum set by statute generally does not
constitute ‘cruel and unusual punishment.’” Id. at 455 (internal quotation marks omitted). The
legislature is given considerable deference in fashioning the type and duration of criminal
punishments. Id. at 456.
Both Hall and Brooks received the mandatory minimum sentences of five and twenty-five
years in prison for their two § 924(c) convictions, to be served consecutively. In essence, they argue
that their punishments are disproportionate to the severity of the crimes, particularly considering
their minor role compared to Martin, the organization’s leader, who received the same punishment.
Given that Hall and Brooks received within-Guidelines sentences, however, it cannot be said that
their sentences for two convictions of § 924(c), for which the government presented sufficient
evidence, were grossly disproportionate to the severity of the offenses. Because they have not
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United States v. Martin, et al.
established the threshold requirement of gross disproportionality, it is unnecessary to compare their
sentences against other offenders, such as Martin, and reversal is unwarranted. Id.
XII.
Hall filed a motion for a new trial, in part, on the basis that the government failed to disclose
a letter from Mashato Lamar to the Assistant United States Attorney, in violation of Brady v.
Maryland, 373 U.S. 83 (1963). The district court denied the motion.
Although there is some confusion in the Sixth Circuit regarding whether a denial of a motion
for a new trial is reviewed de novo or for an abuse of discretion, there is no need to resolve the
discrepancy in this case because Hall’s claim fails under the less deferential de novo standard. See
United States v. Douglas, 634 F.3d 852, 860 (6th Cir. 2011). “To establish a violation of Brady, the
petitioner has the burden of establishing that the prosecutor suppressed evidence; that such evidence
was favorable to the defense; and that the suppressed evidence was material.” Carter v. Bell, 218
F.3d 581, 601 (6th Cir. 2000).
As the district court pointed out, Hall knew about the letter at the time of trial because she
and her attorney were present when co-defendant Brooks used it to attack Lamar’s credibility. No
Brady violation occurred because the contents of the letter from Lamar to the Assistant United States
Attorney were known to Hall at the time of trial and used to discredit Lamar’s testimony. Thus, the
district court did not err when it denied Hall’s motion for a new trial.
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XIII.
Hall and Brooks raise claims of evidentiary error, which we review for an abuse of discretion.
United States v. Mayberry, 540 F.3d 506, 515 (6th Cir. 2008). Hall argues that the district court
erred when it refused to exclude evidence of a high-speed car chase in which she was not involved.
To be admissible, evidence must first be relevant. See Fed. R. Evid. 402. “Evidence is relevant if:
(a) it has any tendency to make a fact more or less probable than it would be without the evidence;
and (b) the fact is of consequence in determining the action.” Fed. R. Evid. 401. Although relevant,
evidence may be excluded “if its probative value is substantially outweighed by a danger of . . .
unfair prejudice, confusing the issues, misleading the jury, undue delay, wasting time, or needlessly
presenting cumulative evidence.” Fed. R. Evid. 403. The district court did not abuse its discretion
when it determined that the video recording was relevant. As the prosecutor explained, the chase
was tied to the conspiracy; McKenzie was a participant in the conspiracy, and drugs and other
contraband were seized from the vehicle. The evidence tended to make the existence of the
conspiracy more probable than it would have been without the evidence. Nor did the district court
abuse its discretion when it determined that the recording’s probative value was not substantially
outweighed by the danger that it might inflame the jury or mislead them. Although Hall was not
involved in the chase, this point was made clear to the jury. There was no dispute that Hall was not
involved in the chase and, indeed, was already in custody at the time it occurred.
Brooks argues that the district court erred when it admitted testimonial evidence from the
officers who executed the search warrant at 1701 Rugby Avenue regarding the presence of large-size
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United States v. Martin, et al.
clothing found in the back bedroom where Brooks was apprehended. The testimony was offered to
rebut Brooks’s claim that he was nothing more than a casual visitor at the house. Although the
clothes were not photographed or taken into evidence, the court allowed an officer to testify that the
clothes were very large and, in his opinion, could only belong to Brooks. At trial, one officer
described Brooks as “a big man, 300-plus pounds,” which was significantly larger than any other
individual arrested on May 3, 2007. Fatal to Brooks’s claim is the abundance of other evidence on
the record establishing his guilt and status as a resident at 1701 Rugby Avenue. The jury heard that
Brooks and Smith lived together in the “weight house,” Martin instructed Brooks to provide security
for the “weight house” in light of the volume of drugs and money that moved through that location,
Brooks was armed while inside the “weight house,” and Brooks would handle drug transactions in
Smith’s absence. Thus, error, if any, in allowing the testimony was harmless.
XIV.
We next consider whether the district court erred when it denied Brooks’s motion for a bill
of particulars. “To make a successful challenge to a district court’s denial of a motion for a bill of
particulars, ‘the defendant must show not only that the court abused its discretion, but that defendant
actually suffered surprise or other prejudice at trial.’” United States v. Crayton, 357 F.3d 560, 568
(6th Cir. 2004) (quoting United States v. Salisbury, 983 F.2d 1369, 1375 (6th Cir. 1993)).
The trial court did not abuse its discretion when it ruled that the indictment adequately
described the charges with sufficient detail. A bill of particulars is meant “to minimize surprise and
assist [the] defendant in obtaining the information needed to prepare a defense and to preclude a
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United States v. Martin, et al.
second prosecution for the same crimes. [It] is not meant as a tool for the defense to obtain detailed
disclosure of all evidence held by the government before trial.” Id. (internal citation and quotation
marks omitted). Further, it is unclear how the specificity in the indictment (or lack thereof) hindered
Brooks’s ability to properly prepare for trial, since he received extensive discovery from the
government. Brooks was privy to copies of numerous recorded conversations spanning a period of
time such that he could not have been surprised when the government presented evidence from dates
other than May 3, 2007. And because Brooks did not rely on the specificities of the firearms at issue
to defend himself, it is unclear how he could have benefitted from greater particularity in the
indictment. Finally, Brooks’s claim that he did not know who he was alleged to have aided and
abetted to possess firearms in furtherance of a drug-trafficking crime lacks credibility. Brooks was
arrested along with Smith, Martin, and Hall at the “weight house,” where agents seized drugs, drug
paraphernalia, and firearms. Accordingly, Brooks could not have been reasonably unaware that these
were the individuals he was alleged to have aided and abetted in the violation of § 924(c).
XV.
The final issue is whether the cumulative effect of the claimed errors entitle Martin to
reversal of his convictions. Martin is not entitled to reversal of his convictions based on cumulative
error where, as here, “there are simply no errors to cumulate.” See Getsy v. Mitchell, 495 F.3d 295,
317 (6th Cir. 2007) (en banc) (citing Baze v. Parker, 371 F.3d 310, 330 (6th Cir. 2004)).
XVI.
For these reasons, we affirm defendants’ convictions and sentences.
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