United States v. Phillip Walsh

NOT RECOMMENDED FOR PUBLICATION
File Name: 16a0353n.06
Nos. 15-1569/2071
FILED
UNITED STATES COURT OF APPEALS Jun 29, 2016
FOR THE SIXTH CIRCUIT DEBORAH S. HUNT, Clerk
UNITED STATES OF AMERICA )
)
Plaintiff-Appellee, )
) ON APPEAL FROM THE
v. ) UNITED STATES DISTRICT
) COURT FOR THE WESTERN
PHILLIP JOSEPH WALSH and BETTY LEE ) DISTRICT OF MICHIGAN
JENKINS )
) OPINION
Defendants-Appellants. )
)
BEFORE: KEITH, COOK, and STRANCH, Circuit Judges.
JANE B. STRANCH, Circuit Judge. Phillip Joseph Walsh and Betty Lee Jenkins
appeal the final judgments against them on one count of conspiracy to manufacture 100 or more
marijuana plants and eleven counts of maintaining drug-involved premises.1 They raise several
common claims on appeal, largely based on the district court’s in-limine order precluding the
defendants from introducing evidence regarding their compliance with Michigan’s Medical
Marihuana Act (MMMA). Jenkins also separately challenges the district court’s denial of her
motions to suppress statements and evidence collected during the search of her properties and
challenges the reasonableness of her sentence. For the reasons set forth below, we AFFIRM the
orders of the district court.
1
Walsh and Jenkins were charged as co-conspirators (along with several others) and tried as co-defendants.
On appeal, their cases were consolidated for the purposes of briefing and submission.
Nos. 15-1569/2071, United States v. Walsh, et al.
I. BACKGROUND
On November 6, 2013, a Kent County Sheriff’s Department and Drug Enforcement
Administration investigation of marijuana manufacturing operations involving Walsh, Jenkins,
and others led to the search of several properties, including the residence that Walsh and Jenkins
shared, two apartment buildings owned by Jenkins and rented out (the Gaines Street apartments),
and additional properties.2 In total, the search yielded more than 250 marijuana plants and more
than 18 pounds of processed marijuana.
On April 22, 2014, a grand jury issued a twelve-count indictment including one count of
conspiracy to manufacture 100 or more marijuana plants, 21 U.S.C. §§ 841, 846, and eleven
counts of maintaining drug-involved premises, 21 U.S.C. § 856.3 Five co-conspirators, Gregory
A. Kuldanek, Kathleen Anne Rosengren, Cynthia Wessel, Steven Hawkins, and Parker
Wilcoulter Smith, eventually pleaded guilty and entered into plea agreements with the United
States.
Walsh and Jenkins elected to proceed to trial. A jury trial was held on January 5 to
January 12, 2015.4 According to the Government’s theory of the case, Walsh and Jenkins were
the organizers of a marijuana manufacturing scheme operated under a company owned by
Jenkins, BL Boop Enterprises, LLC. The Government alleged at trial that Walsh and Jenkins
recruited several co-conspirators, many of whom were in financial need and willing to assist in
2
During the relevant period, Walsh and Jenkins were a couple. The exact nature of their relationship is
unclear from the record. Walsh asserts they have a civil marriage and the Government refers to them as an
unmarried couple.
3
Superseding indictments were returned in June and October 2014, which added defendants and premises
involved in the operation.
4
Todd Stephen Greene was the third co-defendant to elect to proceed to trial. The Government
subsequently voluntarily dismissed charges against him in August 2014 in exchange for his cooperation and based
on his limited involvement in the operation. An additional co-defendant, Adam Paul Rumpf, initially chose to
proceed to trial, but changed his plea in December 2014 to plead guilty to a reduced charge of one count of
maintaining a drug involved premises.
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the cultivation of marijuana in exchange for free or reduced rent in the Gaines Street apartment
buildings.
Walsh and Jenkins allegedly assisted their co-conspirators by building grow rooms,
providing startup costs, and training them. The co-conspirators were registered as “caregivers”
to grow and distribute marijuana under the MMMA. One of the co-conspirators, a physician,
helped the operation to obtain patient cards, which he would sign for “patients” without
conducting a physical examination or even meeting the patient.
The Government alleged that with the combined efforts of the co-conspirators, including
Jenkins’s son and son-in-law, the operation grew marijuana in six of the eight units located in the
Gaines Street apartments, as well as an attached garage. Five of the eight apartments were used
exclusively for the manufacture of marijuana. At some later point, Walsh and Jenkins began
growing marijuana in additional locations, including a lake house owned by the physician
supplying patient cards. The Government alleged at trial that the operation reached beyond
Michigan customers to buyers in Ohio and on the East Coast.
After a six-day trial on the merits, the jury returned a guilty verdict against Walsh and
Jenkins on all counts. On May 4, 2015, Walsh received a sentence of 168 months imprisonment,
to be followed by a five-year supervised release period. On August 31, 2015, Jenkins received a
sentence of 126 months and a four-year period of supervised release. Walsh filed a notice of
appeal on May 12, 2015, and Jenkins’s notice of appeal followed on September 8, 2015.
II. ANALYSIS
We begin with the claims raised by both Walsh and Jenkins. The first common claim
asks whether the district court’s motions-in-limine order deprived defendants of due process by
precluding them from establishing a defense against federal marijuana charges, or at least
allowing the jury to render a verdict based on “the full story.” The second considers whether, in
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light of the district court’s order, the Government committed prosecutorial misconduct by
offering evidence of defendants’ violations of the MMMA.
Next, we consider claims brought individually by Jenkins, who challenges the district
courts orders dismissing her motions to suppress statements and evidence that she claims were
collected in violation of the Fourth Amendment. Jenkins also disputes the reasonableness of her
sentence.
A. Claims Related to the District Court’s In-Limine Order
Walsh and Jenkins contend that the district court’s order precluding them from arguing or
introducing evidence related to their compliance with Michigan medical marijuana laws violated
their due process right to present a defense. In light of Section 538 of the 2015 Appropriations
Act, they contend that compliance with state law provides immunity and an affirmative defense
against federal marijuana charges. In evaluating the charges against them, Walsh and Jenkins
assert that the jury should have considered whether their manufacture of marijuana conformed to
the MMMA. They further contend that the Government failed to comply with the district court’s
in-limine order to such an extent that it constituted prosecutorial misconduct.
The Government responds that Walsh and Jenkins have waived these arguments, as they
made no objection during trial and the arguments are raised for the first time on appeal. Even if
they were not waived, the Government maintains, these claims afford no relief.
1. Evidence Relating to Michigan’s Medical Marihuana Act
A motion in limine is “made before or during trial, to exclude anticipated prejudicial
evidence before the evidence is actually offered.” Luce v. United States, 469 U.S. 38, 40 n.2
(1984). It is “designed to narrow the evidentiary issues for trial and to eliminate unnecessary
trial interruptions.” Louzon v. Ford Motor Co., 718 F.3d 556, 561 (6th Cir. 2013) (quoting
Bradley v. Pittsburgh Bd. of Educ., 913 F.2d 1064, 1069 (3d Cir. 1990)).
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The district court granted several of the Government’s motions in limine, including
motions to prevent Walsh and Jenkins from arguing or introducing evidence to suggest
(1) marijuana has medical value, (2) their erroneous belief that their conduct was lawful, or
(3) compliance with state law. As for the last, the Government cited People v. Redden,
799 N.W.2d 184 (Mich. Ct. App. 2010) (P.J. O’Connell, concurring), for the proposition that
Michigan courts have “cautioned citizens and legal counsel not to rely upon the MMMA even
for protection against criminal charges arising under state law.” That concurring opinion advised
that “[u]ntil our Supreme Court provides a final comprehensive interpretation of [the MMMA], it
would be prudent for the citizens of this state to avoid all use of marijuana if they do not wish to
risk violating state law.” Redden, 799 N.W.2d at 204 n.10.
In considering these motions, the district court noted that while conspiracy is a specific
intent crime, conspirators must only have the “specific, willful intent to enter into the agreement
with others and achieve the objective of the conspiracy,” in this case, growing marijuana. The
Government need not show that Walsh and Jenkins “intended to willfully violate federal drug
laws or knew that their actions violated the Controlled Substances Act.” The district court
determined that a good faith belief in the legality of the operation was therefore irrelevant and,
while this ruling hindered the ability of the defense to paint a complete picture, “irrelevant
evidence is never admissible.” Concluding that “the only reason to discuss compliance with
Michigan’s medical marijuana laws [was] to encourage jury nullification or establish a defense
that [was] not valid,” the court granted the Government’s motion on this subject.
a. Standard of Review
On appeal, Walsh and Jenkins argue that the district court’s in-limine ruling necessitates
de novo review because it is tied to a question of statutory interpretation: whether compliance
with the MMMA affords an affirmative defense to federal marijuana charges in light of Section
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538 of the 2015 Appropriations Act. The Government counters that the correct standard of
review is plain error: Walsh did not file a response in opposition to the Government’s motions in
limine and, while matters of statutory interpretation are ordinarily reviewed de novo, arguments
related to Section 538 were raised by Walsh and Jenkins for the first time on appeal. See Fed. R.
Crim. P. 52(b) (“A plain error that affects substantial rights may be considered even though it
was not brought to the court’s attention.”); see also United States v. Cromer, 389 F.3d 662, 672
(6th Cir. 2004) (employing plain error review of an argument first made on appeal, “even if the
forfeited assignment of error is a constitutional error”).
We disagree with both approaches. First, Walsh and Jenkins’s challenge to the district
court’s order requires review of an evidentiary ruling, not an issue of statutory interpretation.
Second, both arguments (opposing the motions in limine and raising an argument related to
Section 538) were raised below by co-defendant Greene and by Jenkins in responses in
opposition to the motions in limine, and by co-defendant Adam Paul Rumpf in a motion to
dismiss the indictment on the basis of Section 538. A co-defendant’s objection can preserve an
issue on appeal. See United States v. Baker, 458 F.3d 513, 517-18 (6th Cir. 2006) (collecting
cases that “emphasize the futility of requiring each defendant to raise a redundant objection” and
reviewing for abuse of discretion rather than plain error when a defendant’s objection “would not
have served any purpose in light of the fact that the district court was made aware of the basis for
the objection by [his] codefendant”).
We therefore review the district court’s ruling on the Government’s motions in limine for
abuse of discretion, determining whether the district court (1) relied on findings of fact that were
clearly erroneous, (2) applied an incorrect legal standard, (3) misapplied a correct legal standard
to reach a conclusion, or (4) made a clear error of judgment. Louzon, 718 F.3d at 560 (quoting
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In re Countrywide Fin. Corp. Mortg. Lending Practices Litig., 708 F.3d 704, 707 (6th Cir.
2013)).
b. Analysis
Marijuana is designated as a Schedule I drug by the federal Controlled Substances Act
(CSA) due to its “high potential for abuse, lack of any accepted medical use, and absence of any
accepted safety for use in medically supervised treatment.” Gonzales v. Raich, 545 U.S. 1, 14
(2005) (citing 21 U.S.C. §§ 812(b)(1) & (c)). By the terms of the Act, marijuana is “contraband
for any purpose,” and, “if there is any conflict between federal and state law” with regard to
marijuana legislation, “federal law shall prevail” pursuant to the Supremacy Clause. Id. at 27,
29.
The Supreme Court has further clarified that there is no medical necessity exception to
the CSA prohibition on cultivation and distribution of marijuana. See United States v. Oakland
Cannabis Buyers’ Coop., 532 U.S. 483, 486 (2001). “Although state law may permit marijuana
use for medicinal purposes under defined circumstances, federal law treats any possession,
distribution, or manufacture of marijuana as a federal offense, and medical necessity is not a
defense to a federal criminal prosecution for manufacturing or distributing marijuana.” United
States v. Brown, 801 F.3d 679, 693 (6th Cir. 2015) (citing Oakland Cannabis Buyers’ Coop.,
532 U.S. at 493-94). In Gonzalez v. Raich, the Supreme Court held that the CSA’s prohibition of
the manufacture and distribution of marijuana was a valid exercise of congressional power
pursuant to the Commerce Clause. 545 U.S. at 29. The commerce power is “superior to that of
the States to provide for the welfare or necessities of their inhabitants, however legitimate or dire
those necessities may be.” Id. (internal quotation marks omitted).
This precedent proved fatal as applied to a case similar to the one now before us, where
defendants challenged their federal conviction for manufacturing more than 100 marijuana plants
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on the basis that the CSA was “unconstitutional as applied to caregivers operating in compliance
with the MMMA.” United States v. Marcinkewciz, 543 F. App’x 513, 516 (6th Cir. 2013).
There, we determined that defendants had offered no way to distinguish their arguments from
those rejected by the Supreme Court, and we held them foreclosed by Raich. Id.
Walsh and Jenkins contend that Section 538 of the 2015 Appropriations Act changed the
legal landscape in which Raich was decided. In support, Walsh cites United States v. Marin
Alliance for Medical Marijuana, a civil case from the Northern District of California that
interpreted Section 538 to preclude enforcement of a permanent injunction prohibiting
distribution of medical marijuana by a dispensary to the extent that it complied with California
law. No. C 98-00086 CRB, 2015 WL 6123062, at *6 (N.D. Cal. Oct. 19, 2015).
Section 538 states in relevant part:
None of the funds made available in this Act to the Department of
Justice may be used, with respect to the [states with medical
marijuana laws, including California and Michigan] to prevent
such States from implementing their own State laws that authorize
the use, distribution, possession, or cultivation of medical
marijuana.
Consolidated and Further Continuing Appropriations Act, 2015, Pub. L. No. 113-235, § 538,
128 Stat. 2130 (2014) (extended until Dec. 11, 2015, by the 2016 Appropriations Act, Pub. L.
No. 114-53, § 103, 129 Stat. 502 (2015)). After considering this plain language, and the relevant
legislative history, the Marin Alliance court interpreted Section 538 to provide an exception to
the rule that state law offers no defense to violations of federal marijuana law. The court
acknowledged that “[t]he CSA remains in place” and committed to “enforce it to the full extent
that Congress has allowed in Section 538, that is, with regard to any medical marijuana not in
full compliance with ‘State law [ ] that authorize[s] the use, distribution, possession, or
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cultivation of medical marijuana.’” Marin All., 2015 WL 6123062, at *4 (citing 2015
Appropriations Act § 538) (alterations in original).
Walsh and Jenkins argue that Section 538 changed the legal environment surrounding
medical marijuana, by “prohibit[ing] the Government from prosecuting individuals who are
acting in accordance with their state’s medical marijuana laws.” Therefore, they conclude, the
district court “violated Defendant’s due process right to present a defense” by granting the
relevant motion in limine, and by failing to “reconsider its decision in light of the enactment of
Section 538,” which deprived them of the opportunity to establish immunity5 or an affirmative
defense6 under the MMMA.
We cannot conclude that the district court abused its discretion by precluding evidence of
compliance with Michigan medical marijuana laws. Though the legal treatment of marijuana,
both medical and recreational, has continued to change in the ten years since Gonzalez was
decided, it remains good law. The district court granted the motions in limine on the basis that
the manufacture and distribution of Schedule I drugs, including marijuana, is prohibited under
the terms of the CSA. The district court explained that satisfaction of state law is not a defense
to breaching federal law; thus, compliance with Michigan law is irrelevant when considering a
defendant’s guilt or innocence under federal law.
5
To demonstrate immunity, which Walsh contends is a question of law, “a defendant must prove by a
preponderance of the evidence that at the time of the charged offense the defendant possessed a valid registry card,
no more medicine than allowed under section 4, that the plants were kept locked in an enclosed facility, and that the
charged conduct was for medical use.” (Walsh Appellant Br. at 23) (citing People v. Hartwick, 870 N.W.2d 37, 42
(Mich. 2015)).
6
For cases that fall outside of the immunity parameters, Walsh argues that Section 8 of the MMMA can
provide an affirmative defense if a defendant establishes the existence of a bona fide physician-patient relationship,
that the amount of marijuana was an amount reasonably necessary to prevent an interrupted supply, and that the
alleged conduct was for medical use. (Walsh Appellant Br. at 24) (citing Mich. Comp. L. § 333.26428). He
contends this is a question of fact. Id. (citing Hartwick, 870 N.W. at 56).
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Section 538 did not render this legal standard incorrect. While, by its terms, Section 538
instructs the Department of Justice on where to spend its funds with respect to marijuana
cultivation and distribution, it was not an abuse of discretion to determine that Section 538 did
not require the court to halt or alter this criminal prosecution in its final stages. The district
court’s failure to reconsider its order regarding the Government’s motions in limine on the basis
of Section 538, when the 2015 Appropriations Act came into effect just weeks before the trial
and no party raised the matter at trial, is not a clear error of judgment. See Louzon, 718 F.3d at
560.
c. In-Limine Ruling Regarding Jury Nullification
The district court also granted the Government’s motion in limine to preclude Walsh and
Jenkins from arguing or presenting evidence on topics that would lead to jury nullification,
specifically: “(1) the debate about legalization of marijuana, (2) the medical benefits of
marijuana use, (3) whether marijuana should be classified as a Schedule I substance, or
(4) whether the federal government should be prosecuting crimes when citizens voted to allow
marijuana use.”
The issue arose when Walsh’s counsel stated to the jury,
[No one] can tell you what verdict to return. That is your decision.
You get to write the final chapter to this book. You get to tell us
how this story ends. That is your decision. You have that
power. . . . When [the Framers] signed the Declaration of
Independence, it was an act of treason. Today we view that act as
heroic and courageous, and that provided us with many of the
rights we take for granted.
R. 466, PageID 5284-85. This prompted an objection by the Government and a side bar in which
the district court warned Walsh’s attorney that he was “[r]eal close to jury nullification.”
Walsh’s attorney explained that he was speaking to the burden of proof, not jury nullification,
and proceeded without the district court ruling on the objection. He concluded with a request to
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the jury to remember that “history changes,” and suggested that each juror ask “what side of
history do you want to be on?”
Walsh argues that he should have been given “more latitude in his arguments” because
the Sixth Circuit “‘allow[s] a defense attorney some leeway in persuading the jury to acquit out
of considerations of mercy or obedience to a higher law.’” (Walsh Appellant Br. at 53) (citing
United States v. Burkhart, 501 F.2d 993, 997 n.3 (6th Cir. 1974)). That admonition, however, is
framed by recognition of the need for “impartial determination of justice based on law.” United
States v. Krzyske, 836 F.2d 1013, 1021 (6th Cir. 1988) (affirming the district court’s refusal to
give an instruction to the jury on nullification).
Walsh’s argument that the ruling deprived him of “leeway” is unpersuasive under the
facts here. The matter arose only once at a side bar during defense counsel’s closing argument,
after which, Walsh’s attorney successfully concluded his closing argument in a very similar tone
to that which had precipitated the Government’s objection. Given the exceedingly minor nature
of this incident, which took place out of the hearing of the jury and did not result in a ruling, we
cannot conclude that the district court committed an abuse of discretion.
d. Lack of Clarity on the State of Marijuana Law
Finally, we consider a related argument made by Jenkins individually. She argues that, in
light of Section 538 and the MMMA, she had “no clear notice as to what conduct will cause the
federal government to charge under federal law,” making her conviction a due process violation.
She likens her situation to that considered in Morissette v. United States, and similar cases.
342 U.S. 246 (1952). In Morissette, the Supreme Court held that criminal intent was an essential
element of the particular offense charged and that, because the defendant was unaware that the
items he took were government property and not abandoned waste, he lacked the intent required
for “knowing conversion.” Id. at 274-76.
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This case bears little resemblance to Morissette. As explained, while conspiracy is a
specific intent crime, the specific intent required to support a conviction is the intent to achieve
the objective of the conspiracy—here, to manufacture 100 or more marijuana plants. See United
States v. Gibbs, 182 F.3d 408, 420 (6th Cir. 1999). The Government was not required to show
that Jenkins knew of, or intended to violate, federal drug laws. “[T]he Supreme Court has
identified only a few areas, such as tax law, where ignorance of the law is a defense, and that is
because the tax system is so complex.” United States v. Roth, 628 F.3d 827, 835 (6th Cir. 2011)
(internal quotation marks omitted). The CSA is not such a “highly technical statute[],” and
presents little to no “danger of ensnaring individuals engaged in apparently innocent conduct.”
Bryan v. United States, 524 U.S. 184, 194-95 (1998). Jenkins’s argument regarding her
purported ignorance of the law is unavailing.
2. Prosecutorial Misconduct
Walsh and Jenkins contend that the Government engaged in prosecutorial misconduct
when it “repeatedly referred to [their] alleged failure to comply with the [MMMA], despite the
District Court’s order that the [MMMA] and compliance or failure to comply with it was
irrelevant and inadmissible.” Walsh notes that the Government’s alleged misconduct was not
isolated—the Government raised the issue repeatedly throughout the trial, introducing co-
defendants’ plea agreements containing the “irrelevant stipulation[]” that each had violated the
MMMA, questioning co-defendants to elicit precluded testimony, and including such remarks in
closing argument.
The Government responds that it relied on the district court’s evidentiary rulings, which
precluded defendants from arguing they complied with Michigan law, along with Walsh’s failure
to object, and his “outright concurrence in the admission of the testimony.” While, the
Government admits “the trial was replete with evidence from which one could reasonably
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conclude that Walsh was violating Michigan law in many respects,” it maintains that no witness
was ever asked whether Walsh himself violated state law.
a. Standard of Review
Whether a prosecutor’s statements at trial amount to misconduct, and whether the
statements render a trial fundamentally unfair, are “mixed questions of law and fact,” which we
generally review de novo. United States v. Carson, 560 F.3d 566, 574 (6th Cir. 2009).
However, where a defendant fails to raise an objection below, we review such claims for plain
error. Id. “Plain error review applies even if the forfeited assignment of error is a constitutional
error.” United States v. Collins, 799 F.3d 554, 581 (6th Cir. 2015) (quoting United States v.
Cromer, 389 F.3d 662, 672 (6th Cir. 2004)), cert. denied, 136 S. Ct. 601 (2015).
To establish plain error, Walsh and Jenkins must show an error that was obvious or clear,
affected their substantial rights, and that the adverse impact of the error “seriously affected the
fairness, integrity, or public reputation of the judicial proceedings.” Carson, 560 F.3d at 574
(internal quotation marks omitted). To determine whether the alleged prosecutorial misconduct
affected Walsh and Jenkins’s substantial rights, this court looks to four “flagrancy” 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. (citing United States v. Carter, 236 F.3d 777, 783 (6th Cir. 2001)).
b. Analysis
The record reveals that neither party’s portrayal of this issue is particularly accurate. The
text of the in-limine order does not bar the parties from introducing evidence that the marijuana
manufacturing operation violated the MMMA. And all parties acknowledged that the issue of
medical marijuana necessarily had some role to play in the jury trial. During discussions of the
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proposed preliminary instructions, even before voir dire, the district court heard argument from
the parties concerning the relevancy of the MMMA to the proceedings. Counsel for Jenkins
noted upon review of the Government’s proposed jury instructions that, “[t]hey got the order
prohibiting [defendants] from essentially mentioning or arguing or eliciting facts on medical
marijuana,” but that the Government’s proposed jury instructions constituted in part a
“dissertation on medical marijuana.” Walsh’s attorney agreed that since, “in federal court,
federal law applies,” making reference to medical marijuana made the issue “relevant and
somewhat confusing.”
In light of these concerns, the district court indicated that this matter was separate from
the evidence it had barred defendants from introducing in the in-limine order and agreed with the
Government that the subject matter of medical marijuana should be addressed given that the case
involved federal marijuana charges in a state well known to have medical marijuana laws. The
court explained to the parties that it would present the preliminary instructions to try to make
clear to the jury that compliance with the MMMA does not provide a defense to the federal
charges. The court noted that the parties could raise the subject again if they felt the instructions
should be presented differently. Defense counsel offered no objection.
As initially anticipated, the issue of medical marijuana surfaced a number of times
throughout the trial, but not exclusively due to the Government’s lines of questioning. It was
first raised by a Government witness and co-defendant, Kathleen Anne Rosengren.7 In
7
Both parties asked questions to prospective jurors regarding medical marijuana during voir dire. See
United States v. Guzman, 450 F.3d 627, 632 (6th Cir. 2006) (discussing the screening function of voir dire and
noting that “[p]otential jurors’ responses about the outcomes of cases with which they have had personal experience
are certainly relevant to the discovery of potential and actual biases”). To the extent that Walsh and Jenkins assert
that pursuit of this line of questioning during voir dire constitutes an instance of prosecutorial misconduct, we
disagree. We afford the district court wide discretion in voir dire, the primary purpose of which “is to make possible
the empanelling of an impartial jury through questions that permit the intelligent exercise of challenges by counsel.”
United States v. Blount, 479 F.2d 650, 651 (6th Cir. 1973).
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Rosengren’s direct examination, she noted that her initial communications with Walsh and
Jenkins prompted her to educate herself about medical marijuana. The Government went on to
ask the following:
Q. What were you attempting to grow?
A. Medical marijuana.
Q. What did they tell you you were growing?
A. Medical marijuana.
R. 446, PageID 3328-29. Throughout direct examination, defense counsel objected to questions
on other grounds, but never asserted that the Government was violating the in-limine order.
In cross-examination, Jenkins’s counsel also raised questions relating to medical
marijuana by asking whether Rosengren had recruited her own medical marijuana patients even
though she had no medical marijuana to give them. She replied yes, she understood they could
go to Walsh and Jenkins. The Government did not object, and followed up on re-direct
examination by continuing this line of questioning on medical marijuana patients. Defense
counsel neither objected to this line of questioning nor sought to refute the Government’s
questions on re-direct on the basis that the door had been opened. In fact, Jenkins’s attorney
raised the issue only in the context of asking the court if he had gone too far into material
stipulated to in the motion-in-limine order.8 The district court replied that, “there weren’t any
objections from the [G]overnment,” and “because the [G]overnment asked for the order, the
[G]overnment has the order, they can protect the order by objecting to questions they think
violate the order.”
We have located but one instance in the trial transcript where defense counsel
communicated any critique that the Government’s argument might violate the motion-in-limine
order. After Cynthia Wessel testified, Jenkins’s counsel noted his concern, out of the presence of
8
These comments were made by Jenkins’s attorney, but joined by Walsh’s attorney.
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the jury, that the Government was creating the impression that Walsh and Jenkins violated the
MMMA, “which is irrelevant by virtue of the order that [the Government] got in limine as well
as the rulings that the Court has already relied on to indicate that we can’t use it as a defense.”
However, counsel refrained from “asking for any specific relief,” and instead sought “some
guidance from the Court to the Government’s attorneys as to the potential for jury confusion
that’s being created based upon the orders.” The district court noted that it had not “heard
anything from either defendant indicating they are objecting to the references,” but reminded the
parties that “the more we can stay away from [the MMMA], the better.”
This record does not support the assertion that Walsh and Jenkins were totally barred
from introducing argument in any way related to medical marijuana, while the Government was
allowed to do so fully.
The Government’s actions at trial do not rise to the level of prosecutorial misconduct,
particularly in light of the limiting instructions given to the jury, which reiterated that “[s]tate
laws related to the legality of marijuana in certain circumstances have no bearing on the issues
before you and provide no defense to any charge against the . . . defendants,” such that without
instruction to the contrary, the jury “should not consider any reference to the medical use of
marijuana.” Our review of the trial transcript indicates that both parties acknowledged—either in
statements to the court or through their questions to witnesses—that reference to medical
marijuana may need to be introduced in the context of these charges, and that it could be done
without running afoul of the in-limine order.
Walsh and Jenkins also challenge the Government’s questions regarding co-defendants’
plea agreement proffers insofar as they raised the issue of medical marijuana law. For example,
Rosengren confirmed on the stand that her plea agreement included a stipulation that the
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MMMA would not protect her even if she had been in compliance with it. She also agreed that
neither she, “nor any of the people [she] w[as] charged with were actually in compliance with the
[MMMA].” Defense counsel never objected to entry of this or the other plea agreements.
While the guilty plea of a co-defendant cannot be offered as “substantive evidence of a
codefendant’s guilt,” it may “properly be considered as evidence of a witness’ credibility.”
United States v. Thornton, 609 F.3d 373, 377 (6th Cir. 2010) (internal quotation marks omitted).
Here, we are hard pressed to see how Rosengren’s own stipulations regarding her co-defendants’
violation of the MMMA is at all relevant to her credibility. That said, violation of the MMMA
does not go precisely to the content of the in-limine order and, in absence of an objection to
preserve this issue on appeal, we cannot say it rises to the level of plain error.
Because the Government’s conduct did not seriously affect the fairness and integrity of
the proceedings against Walsh and Jenkins, they cannot prevail on their claim of prosecutorial
misconduct.
c. Ineffective Assistance
Walsh adds a claim that his counsel at trial was ineffective for failing to object to the
introduction of evidence that he had not complied with Michigan law. “[A] motion under
28 U.S.C. § 2255 is generally the preferred mode for raising a claim of ineffective assistance of
counsel” for a criminal defendant in federal custody. United States v. Ferguson, 669 F.3d 756,
762 (6th Cir. 2012) (citing Massaro v. United States, 538 U.S. 500, 504 (2003)). This allows the
ineffective assistance claim to be examined in the first instance by the district court, which is the
“forum best suited to developing the facts necessary to determining the adequacy of
representation during an entire trial,” because it can “take testimony from witnesses . . . and from
the counsel alleged to have rendered the deficient performance.” Massaro, 538 U.S. at 505-06.
We decline to consider the merits of Walsh’s claim on direct appeal, as the record has not been
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sufficiently developed and agree with the Supreme Court’s guidance in Massaro that, on these
facts, the claim is properly raised in post-conviction proceedings. See United States v. Bradley,
400 F.3d 459, 461-62 (6th Cir. 2005) (observing the scant information available on the record
regarding the conduct of defendant’s trial counsel and instructing that a claim of ineffective
assistance should be brought in a § 2255 motion).
B. Jenkins’s Individual Claims
Separately from the claims in which she joins with Walsh, Jenkins challenges the district
court’s denial of two motions to suppress filed before trial. She also challenges the
reasonableness of her within-Guidelines sentence.
1. Motion to Suppress Jenkins’s Statements during Search
When considering the denial of a motion to suppress evidence, we review the district
court’s findings of fact for clear error and its conclusions of law de novo. United States v.
Gunter, 551 F.3d 472, 479 (6th Cir. 2009). The district court’s determinations of fact are clearly
erroneous when the reviewing court “is left with the definite and firm conviction that a mistake
has been committed.” United States v. Ray, 803 F.3d 244, 265 (6th Cir. 2015) (quoting United
States v. Navarro-Camacho, 186 F.3d 701, 705 (6th Cir. 1999)). We defer to assessments of
credibility made by the district court, United States v. Adams, 583 F.3d 457, 464 n.7 (6th Cir.
2009), and, as the motion to suppress was denied below, review the evidence in the light most
favorable to the Government, Gunter, 551 F.3d at 479.
Prior to trial, Jenkins filed a motion to suppress statements that she made during the
search of her residence on November 6, 2013, when, she alleges, she was questioned while in
law enforcement custody before being advised of her Miranda rights. See Miranda v. Arizona,
384 U.S. 436 (1996). Jenkins further claimed that her repeated requests for an attorney were
ignored and questioning continued. Jenkins argued that these statements were subsequently used
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by law enforcement to obtain additional search warrants for the Gaines Street apartments, which
she also challenged.
An evidentiary hearing was held at which Jenkins testified that she was questioned for up
to an hour before receiving a Miranda warning. Three detectives present during the interview
testified that a Miranda card was read to Jenkins prior to questioning. The parties also disagreed
with regard to Jenkins’s invocation of her right to counsel. She claimed to have asked repeatedly
to see a lawyer to no avail. The detectives, on the other hand, recalled that Jenkins asked “if she
should have an attorney,” to which the officer interviewing her replied that he could not advise
her on the matter.
To sort through this conflicting testimony, the district court examined the record evidence
and made a credibility determination, finding that Jenkins’s “statements and demeanor on the
stand all point to someone being untruthful,” and that her testimony was “vastly outweighed” by
the testimony offered by the Government. Though Jenkins had stated during the hearing that her
house contained a surveillance system that recorded her asking the detectives to see a lawyer, she
did not produce a copy to support her claim or her motion. One contemporaneously written
record of the incident was available—a record of the interview created by the questioning
detective less than a week after the incident. The report, read into evidence at the hearing by its
author, who described it as “incredibly not accurate” in its portrayal of what happened, stated:
I advised Jenkins of her rights from a card provided to me by [the
Sherriff’s Department]. Jenkins stated that she thought she should
have a lawyer present before answering questions. I explained to
Jenkins I was going to ask her questions, and if she did not feel
comfortable answering any of my questions, to simply not answer
them. Jenkins stated that she was okay with that, but was unable to
sign the card due to being handcuffed behind her back.
R. 172, PageID 965. The district court placed “significant weight” on the report and noted it was
“most consistent with Jenkins’s version of the exchange.”
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Taking the record evidence and testimony on the whole, however, the district court
concluded that Jenkins was read her Miranda warnings prior to questioning and thereafter posed
a question as to whether “‘she should have a lawyer present before answering questions,’” rather
than a “declarative statement.” R. 196, PageID 1104. The court also noted that “[a]ll three
officers interpreted” Jenkins’s “reply as a question, rather than a declarative statement.” Id. The
district court found it clear that Jenkins’s statement was “interrogative in nature,” rather than an
unambiguous and unequivocal request for counsel that would require the detectives to halt the
interview. See Davis v. United States, 512 U.S. 452, 459, 462 (1994) (determining that the
statement “maybe I should talk to a lawyer” is not a request for counsel and expressing
unwillingness to “create a third layer of prophylaxis to prevent police questioning when the
suspect might want a lawyer”).
Jenkins further alleged that her waiver was involuntary because her handcuffs were too
tight and the detective agreed to loosen them only if she answered his questions. The district
court also found this claim was unsupported on the record and “entirely non credible.” The court
concluded that Jenkins had voluntarily waived her Miranda rights during questioning on
November 6, and denied her motion to suppress on this count.9
The standard of review governs the resolution of this issue as we must accept the court’s
findings of fact unless they are clearly erroneous. Here the district court determined that Jenkins
was not credible and made a finding of fact that her reference to having a lawyer present with her
before answering questions was “interrogative in nature.” The court rejected Jenkins’s claim that
her statement was a declaration requesting counsel as opposed to a question. As noted above, we
are to defer to credibility determinations and review findings of fact for clear error. See Adams,
9
Jenkins’s motion to suppress her statements also included an incident from April 2014. However, she
does not raise this issue on appeal and we consider it waived. See Priddy v. Edelman, 883 F.2d 438, 446 (6th Cir.
1989) (“We normally decline to consider issues not raised in the appellant’s opening brief.”).
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583 F.3d at 468 (finding no clear error where the district court, faced with conflicting testimony,
looked to the totality of the circumstances to deny defendant’s motion to suppress a confession).
Because the court denied the motion to suppress, “we review all evidence in the light most
favorable to the Government.” Gunter, 551 F.3d at 479. The case is close. Under the standard
of review, however, we are not left with a definite and firm conviction that the district court
erred in its factual finding that Jenkins’s statement was interrogative. See Ray, 803 F.3d at 265.
We defer to the district court’s credibility assessments, finding that Jenkins was not credible and
that the testimony of the three detectives was. Assuming, as we must in the absence of clear
error, that Jenkins asked the interviewing officer whether she should get a lawyer, her question
was not an “unequivocal invocation of the right to counsel” and, on the record as found by the
court in this case, did not require that questioning cease. See Machacek v. Hofbauer, 213 F.3d
947, 950-53 (6th Cir. 2000) (finding objectively reasonable a state court’s holding that
defendant’s legal guardian did not invoke the right to counsel when she remarked, “Should . . .
We’re going to have to get a lawyer then and should his mother be notified?” and, when asked to
clarify if she wanted an attorney present, “Well, what do you suggest? I’ve never been through
this.”).
2. Motion to Suppress the Search of the Gaines Street Apartments
Jenkins also challenges the district court’s denial of a motion to suppress evidence seized
from the Gaines Street apartments. Jenkins originally challenged this search on the basis that it
was conducted without probable cause, absent a valid warrant, and without a valid exception to
the warrant requirement. The district court conducted a hearing and found that Jenkins lacked
standing to contest the search. The court held that Jenkins lacked a reasonable expectation of
privacy under the Fourth Amendment with respect to these apartments because, although she
owned them, she had leased them to others and they were largely used for commercial purposes.
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Jenkins later filed a motion to reconsider based on “new evidence,” specifically, the plea
agreements of co-defendants Gregory Kuldanek and Cynthia Wessel, which stipulated that
Jenkins had “maintain[ed] control over their . . . marijuana growing operations including the
right to enter and inspect, the right to obtain harvests, and a right of first refusal on subsequent
harvests of marijuana.” This high level of control, Jenkins argued, gave her standing to
challenge “false and misleading statements in the affidavits for the search warrants for the
Gaines Street addresses.”
The district court denied Jenkins’s motion for reconsideration. The court found Jenkins’s
proffered evidence irrelevant because Kuldanek and Wessel lived in their own residences, not the
Gaines Street apartments. The court declined to extrapolate from Jenkins’s access to their homes
any privacy interest in “apartments across town” when no evidence was offered to indicate that
Kuldanek and Wessel lived or worked at the Gaines Street apartments. Moreover, even if the
two co-defendants had resided in the Gaines Street apartments and agreed to Jenkins’s unfettered
access to their residences, the district court reasoned, Jenkins would still be unable to establish
standing because Fourth Amendment protections do not generally extend to a person who is
merely present in a house to pursue a business transaction.
The district court is correct that a landlord’s ownership interest in a property does not, by
itself, create a privacy interest when the property is rented to tenants. See Shamaeizadeh v.
Cunigan, 338 F.3d 535, 544 (6th Cir. 2003) (observing that the Supreme Court has consistently
held “privacy interests are not coterminous with one’s property rights” and finding no privacy
interest where a party owned a basement apartment but rented it out (citing United States v.
Salvucci, 448 U.S. 83, 91 (1980))). The fact that some of the Gaines Street apartments were
uninhabited also does not lend support to Jenkins’s subjective expectation of privacy.
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While “the use of a space for illegal activity does not alter the privacy expectations of a
person who would otherwise have standing,” United States v. Washington, 573 F.3d 279, 283
(6th Cir. 2009), “[p]roperty used for commercial purposes is treated differently for Fourth
Amendment purposes from residential property,” Minnesota v. Carter, 525 U.S. 83, 90 (1998).
Jenkins failed to establish that she had a reasonable expectation of privacy in an apartment that
she did not inhabit and, in fact, leased to others. See id. (finding individuals for whom the
apartment was “simply a place to do business” did not have a reasonable expectation of privacy
there).
3. Jenkins’s Challenge to Her Within-Guidelines Sentence
We review the district court’s sentencing determination for procedural and substantive
reasonableness under a deferential abuse of discretion standard. See United States v. Cochrane,
702 F.3d 334, 343 (6th Cir. 2012). Where, as here, a defendant makes no objection to the
procedural reasonableness of a sentence at the time it is imposed, we review for plain error.10
See United States v. Vonner, 516 F.3d 382, 386 (6th Cir. 2008) (en banc). Jenkins admits that
her sentence of 126 months is presumptively reasonable as it falls within the Guidelines range of
121-151 months.11 See United States v. Simmons, 587 F.3d 348, 365 (6th Cir. 2009) (“[W]e will
not generally second guess sentences on substantive grounds when they fall in the range
prescribed by the Guidelines.”) (internal quotation marks omitted). Here, we find no
unreasonableness in the district court’s reasoning, which properly took into account the
10
Jenkins’s counsel did not object to the sentence when it was imposed at the sentencing hearing, instead,
only confirming that Jenkins did not waive objections previously made at a forfeiture hearing regarding quantity and
dollar value attributed to the marijuana.
11
Jenkins’s Sentencing Guidelines range was originally calculated at 151 to 188 months, however, the
district court sustained Jenkins’s objection to an obstruction of justice enhancement under Section 3C1.1. This
lowered the applicable Sentencing Guidelines range to 121 to 151 months; Jenkins was sentenced to 126 months
imprisonment.
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18 U.S.C. § 3553(a) factors, considerations specific to Jenkins including her low IQ and the
manipulation by Walsh, and imposed a sentence on the low end of the Guidelines range.
On appeal, Jenkins points to the “relatively lenient” sentences received by her
co-defendants to “put[] her sentence into context.” But the comparators Jenkins proposes were
her co-defendants who entered into plea agreements. More importantly, Jenkins was sentenced
as an organizer of the conspiracy, a very different role from those co-defendants. Her sentence
was significantly lower than that of Walsh, her fellow organizer who also went to trial and
received a sentence of 168 months imprisonment.
Jenkins further attempts to bolster her challenge by reiterating arguments already made at
sentencing, including offering a neuropsychological assessment report submitted with her motion
for a downward variance to show her diminished intellectual functioning. Jenkins argues that
while the district court “acknowledged,” the report, it failed to explain “other than in a cursory
manner” why a below-the-Guidelines sentence was not justified. But the district court did
address the report and need not provide a lengthy explanation where a defendant’s arguments are
“‘straightforward [and] conceptually simple’ and where a sentencing court imposes a
within-Guidelines sentence.” United States v. Duane, 533 F.3d 441, 451 (6th Cir. 2008)
(alteration in original) (quoting Rita v. United States, 551 U.S. 338, 356 (2007)). We conclude
that the district court did not abuse its discretion and that Jenkins’s sentence is both procedurally
and substantively reasonable.
III. CONCLUSION
For the reasons stated above, we AFFIRM the final judgments against Walsh and Jenkins
in their entirety.
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