United States v. Wettstain

RECOMMENDED FOR FULL-TEXT PUBLICATION

Pursuant to Sixth Circuit Rule 206

File Name: 10a0272p.06

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

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Plaintiff-Appellee, -

UNITED STATES OF AMERICA,

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Nos. 08-5707/5708

v.

,

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ROBERT WETTSTAIN (No. 08-5707) and JOHN -

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Defendants-Appellants. -

EDWARD STEWART (No. 08-5708),

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Appeal from the United States District Court

for the Western District of Kentucky at Owensboro.

Nos. 07-00010-001; 07-00010-002—Joseph H. McKinley, Jr., District Judge.

Argued: June 10, 2010

Decided and Filed: August 30, 2010

Before: MARTIN and GRIFFIN, Circuit Judges; DUGGAN, District Judge.*

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COUNSEL

ARGUED: Shawn P. Hooks, HOLZFASTER, CECIL, McKNIGHT & MUES, Dayton,

Ohio, Michael R. Mazzoli, COX & MAZZOLI PLLC, Louisville, Kentucky, for

Appellants. Monica Wheatley, ASSISTANT UNITED STATES ATTORNEY,

Louisville, Kentucky, for Appellee. ON BRIEF: Shawn P. Hooks, HOLZFASTER,

CECIL, McKNIGHT & MUES, Dayton, Ohio, Michael R. Mazzoli, COX & MAZZOLI

PLLC, Louisville, Kentucky, for Appellants. Monica Wheatley, Terry M. Cushing,

ASSISTANT UNITED STATES ATTORNEYS, Louisville, Kentucky, for Appellee.

*

The Honorable Patrick J. Duggan, United States District Judge for the Eastern District of

Michigan, sitting by designation.

1

Nos. 08-5707/5708 United States v. Wettstain, et al. Page 2

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OPINION

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GRIFFIN, Circuit Judge. Defendants Robert Wettstain and John Edward Stewart

appeal their convictions and sentences following a three-day jury trial. For the reasons

explained below, we affirm Stewart’s and Wettstain’s convictions and their mandatory

minimum life sentences imposed on Count I. We reverse and remand for resentencing

Wettstain’s life sentences on Counts III and IV and Stewart’s life sentences on Counts

II and IV.

I.

On May 8, 2007, a federal grand jury returned a five-count indictment against

John Edward Stewart, Robert Wettstain, Jerry Richardson, and Wesley Higdon for their

involvement in a large- scale methamphetamine drug distribution ring in Daviess

County, Kentucky. Three months before Higdon’s trial date, he plead guilty to Counts

I, II, and IV of the indictment and agreed to cooperate with the government. Four days

before his trial, Jerry Richardson plead guilty to Counts I and III of the indictment and

also agreed to cooperate with the government.

On December 17, 2007, the district court convened Stewart’s and Wettstain’s

trial. Higdon was the government’s star witness, offering extensive testimony regarding

Stewart’s and Wettstain’s drug operation. Richardson testified about Wettstain’s

copious methamphetamine dealing. The government also provided five non-cooperating

witnesses: Jennifer Brey (Wettstain’s former girlfriend and wife); Carl Daugherty (one

of Stewart’s methamphetamine dealers); Misty Roberts (Jerry Richardson’s fiancée);

James C. Stewart (Jerry Richardson’s cousin); and T.G. Gossett (a close friend of Jerry

Richardson). Each witness provided testimony regarding Stewart’s and Wettstain’s

methamphetamine drug ring, which involved “fronting” large amounts of

methamphetamine to dealers like Daugherty, Higdon, and Richardson for distribution

Nos. 08-5707/5708 United States v. Wettstain, et al. Page 3

in Daviess County. The dealers would then pay Stewart or Wettstain for the “fronted”

methamphetamine with the proceeds they received from drug sales.

On December 20, 2007, the jury returned guilty verdicts against: (1) Stewart and

Wettstain on Count I, conspiracy to possess with the intent to distribute 500 grams or

more of a mixture containing methamphetamine in violation of 21 U.S.C. §§ 841(a)(1)

and 846; (2) Stewart and Wettstain on Count IV, aiding and abetting each other in the

possession with the intent to distribute an unspecified amount of methamphetamine in

violation of 21 U.S.C. § 841(a)(1) and 18 U.S.C. § 2; (3) Stewart on Count II for aiding

and abetting Higdon of possession with the intent to distribute fifty grams or more of a

mixture containing methamphetamine in violation of 21 U.S.C. § 841(a)(1) and

18 U.S.C. § 2; and (4) Wettstain on Count III for aiding and abetting Richardson of

possession with the intent to distribute an unspecified amount of methamphetamine in

violation of 21 U.S.C. § 841(a)(1) and 18 U.S.C. § 2.

Stewart’s presentence report (“PSR”) assessed his base offense level at 32,

U.S.S.G. § 2D1.1(c)(4) (2007), “Offenses Involving Drugs – Unlawful . . .

Trafficking[,]” and calculated his criminal history as a category VI based on 19 criminal

history points, yielding an advisory Guidelines range of 210 – 262 months of

imprisonment. See U.S.S.G. ch. 5, pt. A (Sentencing Table) (2007).

Wettstain’s PSR also assessed his base offense level at 32, U.S.S.G.

§ 2D1.1(c)(4) (2007), “Offenses Involving Drugs – Unlawful . . . Trafficking[,]” and

calculated his criminal history as a category VI based on 22 criminal history points, also

yielding an advisory Guidelines range of 210 – 262 months of imprisonment. See

U.S.S.G. ch. 5, pt. A (Sentencing Table) (2007). However, Wettstain’s PSR

recommended applying U.S.S.G. § 4B1.1 (2007), the Career Offender enhancement,

because he was at least 18 years of age at the time he committed the present offenses and

he had at least two previous felony convictions for a controlled substance offense or a

crime of violence. § 4B1.1 (a). Based on § 4B1.1, Wettstain’s total offense level was

37 and his criminal history category remained at VI, see § 4B1.1(b), yielding an advisory

Nos. 08-5707/5708 United States v. Wettstain, et al. Page 4

Guidelines range of 360 months to life imprisonment. See U.S.S.G. ch. 5, pt. A

(Sentencing Table) (2007).

The government objected to these sentencing recommendations because it had

timely filed notices of intent to rely on Stewart’s and Wettstain’s previous felony drug

convictions to enhance their minimum sentences to life imprisonment on Count I. See

21 U.S.C. § 841(b)(1)(A)(viii); 21 U.S.C. § 851 (2007). In response to the government’s

objections, the PSRs were revised to recommend mandatory minimum life sentences for

Stewart and Wettstain on all counts of conviction. Defense counsel did not object.

On May 15, 2008, Stewart and Wettstain were sentenced. The district court

adopted the revised PSR recommendations and sentenced Stewart to concurrent life

sentences on Counts I, II, and IV and Wettstain to concurrent life sentences on Counts

I, III, and IV.

Defendants timely appeal their convictions and sentences.

II.

We begin our analysis, as we must, with the sufficiency of the evidence. “[A]n

appellate court’s reversal for insufficiency of the evidence is in effect a determination

that the government’s case against the defendant was so lacking that the trial court

should have entered a judgment of acquittal, rather than submitting the case to the jury.”

Lockhart v. Nelson, 488 U.S. 33, 39 (1988). Because the Double Jeopardy Clause

affords a defendant who obtains a judgment of acquittal absolute immunity from further

prosecution for the same crime, the Supreme Court has stated that “it ought to do the

same for the defendant who obtains an appellate determination that the district court

should have entered a judgment of acquittal.” Id.

Accordingly, defendants bear a heavy burden when asserting insufficiency of the

evidence arguments. United States v. Spearman, 186 F.3d 743, 746 (6th Cir. 1999).

“Circumstantial evidence alone is sufficient to sustain a conviction and such evidence

need not remove every reasonable hypothesis except that of guilt.” Id. (citation and

internal quotation marks omitted). Furthermore, we have held consistently that “‘[t]he

Nos. 08-5707/5708 United States v. Wettstain, et al. Page 5

uncorroborated testimony of an accomplice alone may support a conviction.”’ United

States v. King, 288 F. App’x 253, 256 (6th Cir. 2008) (unpublished) (quoting United

States v. Clark, 18 F.3d 1337, 1343 (6th Cir. 1994)).

We review de novo the district court’s denial of a motion for judgment of

acquittal pursuant to Fed. R. Crim. P. 291 and assess the evidence “in the light most

favorable to the prosecution to determine whether any rational trier of fact could have

found the essential elements of the crime beyond a reasonable doubt.” United States v.

Campbell, 549 F.3d 364, 374 (6th Cir. 2008). “We will reverse a judgment based on a

finding of insufficient evidence only if the judgment is not supported by substantial and

competent evidence upon the record as a whole.” Id. Further, we have a duty to make

all reasonable inferences in support of the jury’s verdict. Id. In accordance with these

principles, we turn to Wettstain’s and Stewart’s sufficiency-of-the-evidence arguments.

Count I

Wettstain and Stewart argue that the evidence adduced at trial was insufficient

to establish the existence of a conspiracy to possess with the intent to distribute 500

grams or more of a mixture containing methamphetamine between February 2004 and

February 2007.2 To demonstrate a conspiracy under 21 U.S.C. §§ 841(a)(1) and 846,

the government must prove, beyond a reasonable doubt: “(1) an agreement to violate

drug laws, (2) knowledge and intent to join the conspiracy, and (3) participation in the

conspiracy.” United States v. Gibbs, 182 F.3d 408, 420 (6th Cir. 1999) (citation and

internal quotation marks omitted).

Wettstain argues that the government failed to prove the element of agreement.

We disagree. Higdon, a co-conspirator and cooperating witness, testified that beginning

in December 2006, Stewart “fronted” large amounts of methamphetamine to Wettstain

and Higdon. The two men would sell it to others and pay Stewart with the profits.

1

Rule 29(a) provides, in relevant part: “After the government closes its evidence or after the close

of all the evidence, the court on the defendant’s motion must enter a judgment of acquittal of any offense

for which the evidence is insufficient to sustain a conviction.”

2

Defendants do not challenge the jury’s verdict regarding the drug quantity.

Nos. 08-5707/5708 United States v. Wettstain, et al. Page 6

Higdon also reported that Stewart provided a “discount” on “bulk purchases of

methamphetamine” – “[a]nything under six ounces, I was paying [$]2000 an ounce. . . .

and then [$]1900 an ounce for six ounces or more[,] and then [$]18[00] at ten [ounces].”

Higdon stated that he and Wettstain would travel to Stewart’s home “every couple of

weeks or every week. . . . [t]o receive methamphetamine[].”

Higdon testified that, on January 11, 2007, he witnessed Wettstain receive a

phone call from Stewart. Stewart instructed Wettstain to travel to a house and pick up

eight ounces of methamphetamine that he had left “in a bag inside of a little bucket.”

Wettstain and Higdon traveled to the house together and retrieved the drugs from the

bucket. The next day, Wettstain fronted two of the eight ounces of methamphetamine

to Higdon.

Higdon also testified that, on January 13, 2007, Wettstain called him “in a hurry”

because Wettstain owed Stewart money for the methamphetamine and wanted Higdon’s

payment for the two ounces he had fronted to him the day before so he could pay

Stewart. Higdon testified that from August 2006, when he was released from prison,

until he was re-arrested in January 2007, Stewart fronted him approximately six ounces

of methamphetamine and Wettstain fronted him “at least [] 10 or 12 ounces.”

Nonetheless, Wettstain maintains that “the only evidence of an[] agreement

between [] [he] and [] Stewart was tacit[.]” However, “[a] tacit or mutual understanding

among the parties is sufficient” to establish a conspiratorial agreement. United States

v. Forrest, 17 F.3d 916, 918 (6th Cir. 1994). No “formal agreement” is required. United

States v. Sanchez, 928 F.2d 1450, 1457 (6th Cir. 1991).

Once a conspiracy is shown, evidence connecting a particular defendant

to the conspiracy “need only be slight.” The defendant “need not be an

active participant in every phase of the conspiracy, so long as he is a

party to the general conspiratorial agreement.” A buyer/seller

relationship alone is not enough to establish participation in the

conspiracy, but further evidence indicating knowledge of and

participation in the conspiracy can be enough to link the defendant to the

conspiracy.

Nos. 08-5707/5708 United States v. Wettstain, et al. Page 7

Gibbs, 182 F.3d at 421-22 (internal citation removed).

We have previously recognized “that the ‘trust’ involved in ‘fronting’ drugs

under a delayed payment or credit arrangement ‘suggests more than a buyer-seller

arrangement between the parties.’” United States v. Henley, 360 F.3d 509, 514 (6th Cir.

2004) (citation omitted). According to Higdon’s testimony, Stewart frequently fronted

methamphetamine to Wettstain under a delayed-payment arrangement, including the

methamphetamine Wettstain acquired from Stewart on January 11, 2007. Moreover, “[a]

jury may infer that a defendant had the intent to distribute drugs from circumstantial

evidence of the possession of large quantities of drugs.” United States v. Young, 243 F.

App’x 105, 106 (6th Cir. 2007) (unpublished) (citing United States v. Faymore, 736 F.2d

328, 333 (6th Cir. 1984)). As the D.C. Circuit has accurately observed, “[a] person can

be found guilty on a theory of conspiracy, aiding and abetting, or constructive possession

without ever having touched the drugs at issue.” United States v. Curry, 494 F.3d 1124,

1128 (D.C. Cir. 2007).

Wettstain and Stewart attack Higdon’s credibility because he was a cooperating

witness. However, “[s]ufficiency-of-the-evidence appeals are no place . . . for arguments

regarding a government witness’s lack of credibility.” United States v. Hernandez, 227

F.3d 686, 694 (6th Cir. 2000) (citations and internal quotation marks omitted). “This

Court has repeatedly held that a juror is free to weigh the testimony of a co-conspirator

who pleads guilty and testifies pursuant to a cooperation agreement with the United

States.” United States v. Fonseca, 193 F. App’x 483, 491 (6th Cir. 2006) (unpublished)

(citing Hernandez, 227 F.3d at 694). Thus, Higdon’s credibility, or lack thereof, is not

a proper issue for our consideration, and his uncorroborated testimony alone can support

Wettstain’s and Stewart’s convictions. United States v. King, 288 F. App’x 253, 256

(6th Cir. 2008) (unpublished) (citing United States v. Clark, 18 F.3d 1337, 1343 (6th Cir.

1994).

For these reasons, we hold that there was sufficient evidence from which a

rational trier of fact could determine that Wettstain and Stewart were involved in a

conspiracy to possess with the intent to distribute 500 grams or more of a mixture

Nos. 08-5707/5708 United States v. Wettstain, et al. Page 8

containing methamphetamine between February 2004 and February 2007. Accordingly,

we affirm their convictions on Count I.

Count IV

Wettstain and Stewart also challenge the sufficiency of the evidence to support

their convictions on Count IV, specifically, that on or about January 11, 2007, Stewart,

Wettstain, and Higdon, aided and abetted by each other, knowingly and intentionally

possessed with the intent to distribute an unspecified amount of methamphetamine in

violation of 21 U.S.C. § 841(a)(1).3

To demonstrate possession with the intent to distribute a controlled substance

under § 841(a)(1), the government must prove, beyond a reasonable doubt, that: (1) the

defendants knowingly, (2) possessed a controlled substance, (3) with the intent to

distribute. United States v. Coffee, 434 F.3d 887, 897 (6th Cir. 2006). Higdon’s

testimony established that Stewart arranged for Wettstain and Higdon to pick up eight

ounces of methamphetamine on January 11, 2007, and that they located the

methamphetamine based on Stewart’s instructions.

The government can base a conviction under § 841(a)(1) upon a showing

of either actual or constructive possession. See United States v. Hill, 142

F.3d 305, 312 (6th Cir.), cert. denied, 119 S. Ct. 225 (1998).

“Constructive possession requires evidence supporting the conclusion

that the defendant had the ability to exercise knowing ‘dominion and

control’ over the items in question.” United States v. Morris, 977 F.2d

617, 619 (D.C. Cir. 1992) (internal citation omitted). . . . A jury may also

find the intent to distribute drugs from the large quantity involved. See,

e.g., United States v. Faymore, 736 F.2d 328, 333 (6th Cir.), cert. denied,

469 U.S. 868 (1984).

United States v. Perkins, No. 98-1640, 1999 WL 777537, at *2 (6th Cir. Sept. 16, 1999)

(unpublished).

3

Defendants do not assert a sufficiency of the evidence argument regarding their convictions for

aiding and abetting,18 U.S.C. § 2, in Counts II-IV of the indictment.

Nos. 08-5707/5708 United States v. Wettstain, et al. Page 9

Accordingly, the fact that Stewart was not physically present at the January 11,

2007, transaction is of no moment. The jury presumptively credited Higdon’s testimony

that he witnessed Wettstain receive a phone call from Stewart, in which Stewart told

Wettstain to retrieve the drugs from a specific address, “in a bag inside of a little

bucket.” Wettstain and Higdon traveled together to the house and acquired the drugs.

Thus, a rational juror could determine that Stewart constructively possessed the

methamphetamine because he had the ability to exercise “dominion[] or control” over

the bucket and its illegal contents. United States v. Russell, 595 F.3d 633, 645 (6th Cir.

2010). The jury could have also inferred that Stewart and Wettstain had the intent to

distribute the methamphetamine because of the large quantity involved in the

transaction. Faymore, 736 F.2d at 333.

Wettstain also asserts that the district court should have granted his motion for

acquittal on Count IV because “there was no evidence of a specific amount of [pure]

methamphetamine in evidence [as opposed to a mixture of methamphetamine]” and that

the district court improperly allowed the government “to amend its charges[.]”

(Emphasis added.) Wettstain essentially argues that the type of controlled substance

referenced in the indictment is an element of the offense.4 We disagree.

The settled law of our circuit is, “in regard to 21 U.S.C. § 841, section (a)

describes the substantive offense, and section (b), imposing mandatory minimum

sentences based on the quantity of drugs involved, is a penalty provision only and does

not constitute an element of the offense to be determined by the [finder of fact].” United

States v. Cox, 565 F.3d 1013, 1016-17 (6th Cir. 2009) (quoting United States v. Jinadu,

98 F.3d 239, 247 (6th Cir. 1996)). As we explained in United States v. Garcia, 252 F.3d

838 (6th Cir. 2001), drug type and quantity are irrelevant to the mens rea element of a

section 841(a) offense, which requires nothing more than a defendant’s specific intent

to possess or distribute a controlled substance. Id.; United States v. Gunter, 551 F.3d

4

Wettstain also advances this argument regarding his conviction on Count III of the indictment,

which uses the term “methamphetamine” instead of “a mixture of a substance containing

methamphetamine.” At the motion for acquittal hearing, Stewart joined Wettstain’s argument as to Count

IV. Because their arguments are essentially the same, we consider them contemporaneously.

Nos. 08-5707/5708 United States v. Wettstain, et al. Page 10

472, 484-85 (6th Cir. 2009); see also United States v. Baker, 432 F.3d 1189, 1233 (6th

Cir. 2005) (“[B]ecause the specific amount and type of drugs are not elements of the

offense, the government’s failure to prove the amount or type charged in the indictment

does not merit reversal”).

Accordingly, we conclude that there was sufficient evidence from which a

rational trier of fact could determine that Wettstain and Stewart aided and abetted each

other to knowingly and intentionally possess with the intent to distribute an unspecified

amount of methamphetamine. We affirm defendants’ convictions on Count IV.

Count II

Stewart also challenges the sufficiency of the evidence to support his conviction

on Count II, specifically, that on or about April 25, 2004, Stewart and Higdon, aided and

abetted by each other, knowingly and intentionally possessed with the intent to distribute

fifty grams or more of a mixture of methamphetamine in violation of 21 U.S.C.

§ 841(a)(1). As we have stated previously, to sustain this conviction, the government

must prove that: (1) the defendants knowingly, (2) possessed a controlled substance,

(3) with the intent to distribute. Coffee, 434 F.3d at 897.

Stewart argues that the lack of drugs and money seized from his person at the

time of his arrest undermines the jury’s verdict. However, “[c]ircumstantial evidence

alone is sufficient to sustain a conviction and such evidence need not remove every

reasonable hypothesis except that of guilt.” Spearman, 186 F.3d at 746 (citation and

internal quotation marks omitted). In this regard, Higdon testified that between February

2004 and May 2004, Stewart fronted “[m]ore than 20 ounces” of methamphetamine to

Higdon. The jury could reasonably infer that Stewart possessed the requisite intent to

distribute fifty grams or more of a mixture of methamphetamine because of the large

quantities involved in his transactions with Higdon. See Faymore, 736 F.2d at 333.

Thus, we hold that there was sufficient evidence from which a rational trier of

fact could determine that Stewart knowingly and intentionally possessed with the intent

to distribute methamphetamine and affirm his conviction on Count II.

Nos. 08-5707/5708 United States v. Wettstain, et al. Page 11

Count III

Wettstain also challenges the sufficiency of the evidence to support his

conviction on Count III, specifically, that on or about December 17, 2006, Wettstain and

Jerry Richardson, aided and abetted by each other, knowingly and intentionally

possessed with intent to distribute an unspecified amount of methamphetamine. Again,

the elements of a charge of possession with intent to distribute methamphetamine are:

(1) the defendants knowingly, (2) possessed a controlled substance, (3) with the intent

to distribute. Coffee, 434 F.3d at 897.

Richardson testified that he bought “[o]ne to two ounces” of methamphetamine

“[a] few times a week, two or three, sometimes maybe four times a week” directly from

Wettstain. Based on the large quantities of drugs involved in his transactions with

Richardson, the jury could reasonably infer that Wettstain had the requisite intent to

distribute. Faymore, 736 F.2d at 333. Wettstain also attacks Jerry Richardson’s

credibility for the same reason Stewart and Wettstain challenge Higdon’s credibility –

his cooperation with the government. “Sufficiency-of-the-evidence appeals are no place

. . . for arguments regarding a government witness’s lack of credibility.” Hernandez,

227 F.3d at 694. “This Court has repeatedly held that a juror is free to weigh the

testimony of a co-conspirator who pleads guilty and testifies pursuant to a cooperation

agreement with the United States.” Fonseca, 193 F. App’x at 491 (citing Hernandez,

227 F.3d at 694).

For these reasons, we hold that there was sufficient evidence from which a

rational trier of fact could determine that Wettstain knowingly and intentionally

possessed with the intent to distribute an unspecified amount of methamphetamine.

Accordingly, we affirm his conviction on Count III.

Nos. 08-5707/5708 United States v. Wettstain, et al. Page 12

III.

Next, Wettstain and Stewart argue that the district court abused its discretion in

denying (1) their motion for a mistrial based upon alleged prosecutorial misconduct; and

(2) their renewed motion for a new trial based upon a juror letter impeaching the verdict.

We disagree.

A.

We review for abuse of discretion the district court’s denial of Wettstain’s and

Stewart’s motion for a mistrial based on prosecutorial misconduct. United States v.

Wall, 130 F.3d 739, 745 (6th Cir. 1997). Defendants jointly argue that they are entitled

to a new trial because the prosecutor improperly appealed to the jury’s “community

conscience” during his closing argument. The government responds that the

prosecutor’s comments were not improper, and, even if they were improper, they were

not flagrant. When analyzing a claim of prosecutorial misconduct, “the relevant

question is whether the prosecutor’s comments so infected the trial with unfairness as

to make the resulting conviction a denial of due process.” Darden v. Wainwright, 477

U.S. 168, 181 (1986) (citation and internal quotation marks omitted).

Stewart and Wettstain objected to the following statements made by the

prosecutor at the beginning of his closing argument:

You folks are the conscience of the community. You are the

representatives of this community, and you know that there’s a plague on

the community, which is methamphetamine. Now, you know that at the

center of this epidemic are these two monsters, Mr. Stewart and Mr.

Wettstain, because they’ve been peddling methamphetamine all over

your community for at least – for most of the last 10 years.

After the objection, the district court conducted a short side-bar conference, and

defense counsel asked for a curative instruction to the jury. The district court

immediately provided one, stating:

THE COURT: Ladies and gentlemen, your job in this case is not to solve

the drug problem in this community. It’s an improper argument to make.

Your job is to decide the evidence in this case and decide whether these

Nos. 08-5707/5708 United States v. Wettstain, et al. Page 13

people are guilty or not guilty of the crimes charged. So I want you to

disregard any evidence – or any argument to the contrary made by [the

prosecutor].

[COUNSEL FOR THE GOVERNMENT]: Thank you, your Honor. I

apologize, ladies and gentlemen.

Once the jury returned their verdicts, Wettstain and Stewart moved again for a

mistrial. The district court denied their motion, ruling that the prosecutor’s statements

were not improper because he did not “urge[] the jury to send a message to all drug

dealers in the community by convicting the defendant.” The district judge ruled that

“even if the government’s remarks were improper” his “admonition ‘sufficiently diluted

or eradicated any resulting prejudice’” because he had given “an immediate and firm

curative instruction explaining why the statement by the government should have no

effect on the jury’s deliberations.” (quoting United States v. Solivan, 937 F.2d 1146,

1156 (6th Cir. 1991)).

In United States v. Beasley, 583 F.3d 384, 392-93 (6th Cir. 2009), we explained

the proper analysis for evaluating motions for mistrial based upon alleged prosecutorial

misconduct:

Our two-part test for determining whether prosecutorial misconduct

warrants a mistrial requires us to examine (1) whether the prosecutor’s

remarks were improper and, if so, (2) whether they were flagrant.

Macias v. Makowski, 291 F.3d 447, 452 (6th Cir. 2002). “[I]mproper

remarks that are flagrant amount to per se reversible error; improper

remarks that are not flagrant may amount to reversible error in certain

circumstances.” United States v. Hargrove, 416 F.3d 486, 493 (6th Cir.

2005). “To determine the flagrancy of the prosecutor’s remarks, we look

at (1) whether the statements tended to mislead the jury and prejudice the

defendant; (2) whether the statements were isolated or pervasive;

(3) whether the statements were deliberately placed before the jury; and

(4) whether the evidence against the accused is otherwise strong.” White,

563 F.3d at 193 (citations omitted).

Here, defendants assert that the prosecutor’s appeal to the jury’s “community

conscience” closely resembles the following improper statements made by the

prosecutor in Solivan which resulted in a remand for a new trial:

Nos. 08-5707/5708 United States v. Wettstain, et al. Page 14

What you’re listening to is a wholesale distributor of narcotics, cocaine

discuss her business affairs and complain about her busy schedule, the

lack of good product and the trouble she’s having getting this stuff up

here now. And I’d submit to you, folks, that she’s been caught now.

And I’m asking you to tell her and all of the other drug dealers like her

– (defense counsel’s objection and Court’s response omitted) – [t]hat we

don’t want that stuff in Northern Kentucky and that anybody who brings

that stuff in Northern Kentucky[.]

937 F.2d at 1148 (emphasis removed). In Solivan, the prosecutor repeatedly referred to

the “War on Drugs,” a popular topic at the time of the defendant’s trial. Id. at 1153. In

finding error, we concluded that the prosecutor’s “statements were deliberately injected

into the proceedings to inflame the jurors’ emotions and fears associated with the current

drug epidemic that is reported daily in our newspapers and which threatens the very

fabric of our society.” Id. at 1157; cf. Hicks v. Collins, 384 F.3d 204, 219 (6th Cir. 2004)

(a prosecutor may appeal to the jury’s general duty to convict the guilty but may not

appeal to the jury’s fears or prejudices).

In the present case, the prosecutor’s remarks were not as benign as in Hicks, and,

like Solivan, were inflammatory. Here, the prosecutor appealed to the jury by

characterizing the community’s drug problem as a “plague” and “an epidemic[,]” at the

center of which were Stewart and Wettstain, whom the prosecutor labeled as “monsters.”

These statements appealed to jurors’ fears, not to their reasoned judgment. For these

reasons, we conclude that the prosecutor’s remarks were improper.

However, we also hold that the statements were not flagrant. First, unlike

Solivan, the prosecutor’s statements were isolated. Second, the prosecutor thought his

remarks were proper, thereby demonstrating that he did not intend to mislead the jury

or prejudice defendants. Third, the “community conscience” statement did not mislead

the jury because it did not marshal them to punish all the drug dealers in their

community by convicting Stewart and Wettstain; rather, the comment accurately

identified Wettstain and Stewart as drug dealers who lived and peddled

methamphetamine in their community. Finally, the testimonial evidence against

Wettstain and Stewart was otherwise strong.

Nos. 08-5707/5708 United States v. Wettstain, et al. Page 15

We reverse for improper, but non-flagrant, prosecutorial misconduct only where:

“(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. Brown, 66 F.3d 124, 127 (6th Cir. 1995); United States v. Carroll,

26 F.3d 1380, 1384-87 (6th Cir. 1994) (same). Here, the district court gave an

immediate, strong, and proper curative instruction, advising the jury that the

objectionable statement was “an improper argument to make” and that the jury’s “job

in this case [was] not to solve the drug problem in th[eir] community” but “to decide the

evidence in th[e] case” – “whether these [defendants were] guilty or not guilty of the

crimes charged.” The district court also advised the jury to “disregard any evidence –

or any argument to the contrary made by [the prosecutor].”

We “presume that the jury followed the court’s instructions on the law.” Beasley,

583 F.3d at 394 (citing Washington v. Hofbauer, 228 F.3d 689, 706 (6th Cir. 2000)).

Thus, under these circumstances, Wettstain’s and Stewart’s arguments for reversal fail.

Defendants also argue that the following additional statements made by the

prosecutor warrant a remand for a new trial:

• Mr. Wettstain and Mr. Stewart have been peddling misery and

spreading misery to other addicts in this community for some

period of time going back to what would be ‘98, according to

Jennifer Bray [sic]. It’s high time they’re held accountable.

• These people, in closing, ladies and gentlemen, have peddled

their dope all over this area. They’ve caused a whole lot of

misery. . . . These folks are ruining a lot of people’s lives with

their dope dealing. Please hold them accountable.

Because neither defendant objected to these statements, we review them for plain

error, only. United States v. Davis, 514 F.3d 596, 614-15 (6th Cir. 2008). While it is

true that “[p]rosecutorial misconduct may be so exceptionally flagrant that it constitutes

plain error[,]” id. at 614 (quoting United States v. Carter, 236 F.3d 777, 783 (6th Cir.

2001), the statements at issue were isolated and not made with the intent to mislead the

Nos. 08-5707/5708 United States v. Wettstain, et al. Page 16

jury. Simply put, the unobjected-to statements are not “so exceptionally flagrant” as to

constitute plain error.

For these reasons, the district court did not abuse its discretion in denying

defendants’ motions for a mistrial based on prosecutorial misconduct.

B.

Wettstain and Stewart also argue that the district court improperly denied their

motion for a new trial based upon a letter it received from an empaneled juror. We

review the district court’s decision to deny a motion for a new trial for abuse of

discretion. United States v. Carson, 560 F.3d 566, 585 (6th Cir. 2009).

The juror’s letter stated that he regretted voting for a guilty verdict because:

(1) Wettstain and Stewart did not take the stand in their own defense, which “made them

look guilty[,]” and he later realized that he should not have assumed this; (2) Stewart

“was never found with anything”; and (3) the other jurors voted for a guilty verdict

“simply [because they] wanted to hurry it up and get it over with.”

The Supreme Court has long adhered to the rule that a juror is incompetent to

impeach the verdict. See, e.g., Mattox v. United States, 146 U.S. 140, 149 (1892). If this

were not so, the Supreme Court has explained, “[j]urors would be harassed and beset by

the defeated party in an effort to secure from them evidence of facts which might

establish misconduct sufficient to set aside a verdict.” McDonald v. Pless, 238 U.S. 264,

267 (1915); see United States v. Gonzales, 227 F.3d 520, 525-26 (6th Cir. 2000).

Federal Rule of Evidence 606(b), entitled “Inquiry into validity of verdict or

indictment[,]” codifies this rule and provides only three exceptions to it:

(1) whether extraneous prejudicial information was improperly brought

to the jury’s attention, (2) whether any outside influence was improperly

brought to bear upon any juror, or (3) whether there was a mistake in

entering the verdict onto the verdict form. A juror’s affidavit or evidence

of any statement by the juror may not be received on a matter about

which the juror would be precluded from testifying.

Nos. 08-5707/5708 United States v. Wettstain, et al. Page 17

Because the juror’s letter does not reference any exception recognized in Rule

606(b), the district court properly disregarded his statements. See Gonzales, 227 F.3d

at 527 (holding that district court abused its discretion in granting a motion for a new

trial based “on the wholly incompetent testimony of one juror . . . .”).

IV.

Finally, Wettstain and Stewart argue that the district court abused its discretion

when it imposed life sentences on all counts of their convictions. We agree, in part, and

we reverse and remand for resentencing on Counts II – IV.

We review the district court’s sentencing decisions for reasonableness under an

abuse-of-discretion standard. United States v. Bates, 552 F.3d 472, 476 (6th Cir. 2009)

(citing Gall v. United States, 522 U.S. 38, 46 (2007)); United States v. Bolds, 511 F.3d

568, 578 (6th Cir. 2007). Reasonableness review has both a procedural and a

substantive component. United States v. Sedore, 512 F.3d 819, 822 (6th Cir. 2008). We

“must first ensure that the district court committed no significant procedural error, such

as failing to calculate (or improperly calculating) the Guidelines range, treating the

Guidelines as mandatory, failing to consider the [18 U.S.C.] § 3553(a) factors, selecting

a sentence based on clearly erroneous facts, or failing to adequately explain the chosen

sentence . . . .” Gall, 552 U.S. at 51. If the sentence is “procedurally sound,” we “then

consider the substantive reasonableness of the sentence imposed under an

abuse-of-discretion standard.” Id. We apply a presumption of substantive

reasonableness to sentences that fall within the applicable Guidelines range. Sedore, 512

F.3d at 823.

A.

Wettstain and Stewart assert that their mandatory minimum life sentences,

imposed as a result of their convictions on Count I, are unconstitutional because they

interfere with a district court’s ability to consider the 18 U.S.C. § 3553(a) factors.

However, it is well-settled that “[m]andatory minimum sentences, which limit a

sentencing court’s discretion with regard to § 3553(a) factors, are constitutional.”

Nos. 08-5707/5708 United States v. Wettstain, et al. Page 18

United States v. Washington, 584 F.3d 693, 700 (6th Cir. 2009); Harris v. United States,

536 U.S. 545, 565-68 (2002). Simply put, the current law governing mandatory

minimum sentences defeats this argument. In addition, because the district court

correctly sentenced defendants pursuant to § 841(b)(1)(A)(viii) and 21 U.S.C. § 851,

these statutes control over any conflicting Guidelines sentencing range. United States

v. Woods, No. 07-6495, 2010 WL 697357, at n.5 (6th Cir. Mar. 1, 2010) (citing United

States v. Butler, 207 F.3d 839, 850 (6th Cir. 2000)).

For these reasons, we affirm defendants’ mandatory minimum life sentences on

Count I.

B.

The government concedes sentencing error on Counts III and IV because the jury

did not find any specific drug quantity and therefore the corresponding statutory

maximum sentence for these counts is thirty years. See 21 U.S.C. § 841(b)(1)(C)

(2007).5 Apprendi mandates that “‘any fact that increases the penalty for a crime beyond

the prescribed statutory maximum must be submitted to a jury, and proved beyond a

reasonable doubt.’” United States v. Booker, 543 U.S. 220, 227-28 (2005) (quoting

Apprendi v. New Jersey, 530 U.S. 466, 490 (2000)). Thus, Wettstain’s and Stewart’s life

sentences on Counts III and IV are unlawful because they exceeded the statutory

maximum sentence. United States v. Penson, 526 F.3d 331, 336 (6th Cir. 2008) (holding

that when district court exceeds its statutory authority it pronounces an unlawful

sentence).

However, the government asserts that we should apply plain-error review

because Wettstain and Stewart failed to object following the district court’s

pronouncement of their sentences pursuant to United States v. Bostic, 371 F.3d 865, 873

(6th Cir. 2004). In Bostic, we held:

5

“In the case of a controlled substance in schedule I or II . . . such person shall be sentenced to

a term of imprisonment of not more than 20 years . . . . If any person commits such a violation after a prior

conviction for a felony drug offense has become final, such person shall be sentenced to a term of

imprisonment of not more than 30 years . . . . ” 21 U.S.C. § 841(b)(1)(C) (2007).

Nos. 08-5707/5708 United States v. Wettstain, et al. Page 19

[D]istrict courts, after pronouncing the defendant’s sentence but before

adjourning the sentencing hearing, [must] ask the parties whether they

have any objections to the sentence just pronounced that have not

previously been raised. If the district court fails to provide the parties

with this opportunity, they will not have forfeited their objections and

thus will not be required to demonstrate plain error on appeal. If a party

does not clearly articulate any objection and the grounds upon which the

objection is based, when given this final opportunity [to] speak, then that

party will have forfeited its opportunity to make any objections not

previously raised and thus will face plain error review on appeal.

Id. at 872-73 (footnote omitted); United States v. Vonner, 516 F.3d 382, 385-86 (6th Cir.

2008) (applying Bostic rule to procedural-reasonableness claims). We have held that

“[a] district court can satisfy the requirements of the Bostic rule only by clearly asking

for objections to the sentence that have not been previously raised.” United States v.

Thomas, 498 F.3d 336, 340 (6th Cir. 2007) (quoting United States v. Clark, 469 F.3d

568, 570 (6th Cir. 2006)). In the present case, after pronouncing their life sentences on

all counts, the district court simply asked Wettstain’s and Stewart’s counsel, “Anything

else?”

In Thomas, we held that a substantially similar question, “Do you have anything

further for the record, Mr. Canady?” did not satisfy Bostic. 498 F.3d at 340.

Accordingly, contrary to the government’s position, Wettstain’s and Stewart’s failure

to raise an objection to their unlawful sentences does not confine defendants to plain

error review. We have held previously that where a defendant’s “sentence[ ] exceed[s]

the statutory maximum sentence . . . we [] vacate the excessive sentence[ ] and remand

for resentencing.” United States v. Sims, 975 F.2d 1225, 1241 (6th Cir. 1992) (emphasis

added). For these reasons, we vacate Stewart’s life sentence on Count IV and

Wettstain’s life sentences on Counts III and IV and remand for resentencing.

C.

Finally, Stewart asserts that his life sentence on Count II is procedurally

unreasonable because the district court felt improperly constrained by his mandatory life

sentence on Count I. We have held that when presented with an allegation that the

sentencing court misunderstands its authority, we will only remand based upon an

Nos. 08-5707/5708 United States v. Wettstain, et al. Page 20

“indication of error in the record,” not upon “mere conjecture” that the court felt

improperly constrained. United States v. Guest, 564 F.3d 777, 781 (6th Cir. 2009).

At the sentencing hearing, the district judge expressly stated that he would not

have issued a life sentence “plain and simple” if he did not “feel compelled” to do so.

See 21 U.S.C. § 841(b)(A)(iii). The district court provided no other explanation for the

sentence. The mandatory minimum life sentence, however, was applicable to Count I,

only. Specifically, the jury’s special verdict form convicted Stewart on Count II for

possessing with the intent to distribute fifty grams or more of a mixture of

methamphetamine in violation of 21 U.S.C. § 841(a)(1). Thus, his penalty is governed

by 21 U.S.C. § 841(b)(1)(B)(viii), which imposes a term of imprisonment of not less

than ten years and not more than life upon one with a prior felony drug conviction.

Although the statutory maximum penalty under § 841(b)(1)(B)(viii) is life

imprisonment, it appears from the record that the district judge felt bound by a

mandatory minimum life sentence on all counts, including Count II. Thus, we reverse

Stewart’s life sentence on Count II and remand for resentencing.6

V.

In conclusion, we affirm Stewart’s and Wettstain’s convictions. Further, we

affirm defendants’ mandatory minimum life sentences imposed on Count I. We reverse

and remand for resentencing Wettstain’s life sentences on Counts III and IV and

Stewart’s life sentences on Counts II and IV.

6

The concurrent sentencing doctrine does not apply in the present case. Count I’s valid,

mandatory life sentence does not cure the district court’s sentencing errors on Counts II - IV. Our decision

regarding the sufficiency of the evidence on Count I is subject to further judicial review. Thus, if another

court were to vacate Stewart’s or Wettstain’s conviction on Count I, the unlawful sentences imposed on

Counts II - IV would no longer be cured by the mandatory life sentence imposed on Count I. See Dale v.

Haeberlin, 878 F.2d 930, 935 n.3 (6th Cir. 1989) (citing United States v. Jeter, 775 F.2d 670 (6th Cir.

1985).