United States v. Buchanan

RECOMMENDED FOR FULL-TEXT PUBLICATION

Pursuant to Sixth Circuit Rule 206

ELECTRONIC CITATION: 2000 FED App. 0060P (6th Cir.)

File Name: 00a0060p.06

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

_________________

;



UNITED STATES OF AMERICA,



Plaintiff-Appellee,





Nos. 98-1353/

v.



1391/1533/1534/

>



1535/1537/1538/

ALLIE RICHARD BUCHANAN

IV (98-1353), TROY SWINDLE 

1590/1594/1780





(98-1780), ALBERT DERRING



(98-1391), DERRICK C.



FLOWERS (98-1594),

CHARLES WASHPUN 





(98-1590), RODNEY D.



ATKINSON (98-1538), OTIS



MURRAY III (98-1537),



EURTIS JONES (98-1535),



GEORGE KELLUM (98-1534),

and DARRYL FORD (98-1533), 

Defendants-Appellants. 

1

Appeal from the United States District Court

for the Western District of Michigan at Grand Rapids.

No. 97-00082—Robert Holmes Bell, District Judge.

Argued and Submitted: October 25, 1999

Decided and Filed: February 17, 2000

1

2 United States v. Nos. 98-1353/1391/1533/1534/

Buchanan, et al. 1535/1537/1538/1590/1594/1780

Before: JONES, MOORE, and GILMAN, Circuit Judges.

_________________

COUNSEL

ARGUED: David W. Garrett, DAVID W. GARRETT &

ASSOCIATES, Comstock Park, Michigan, Gaylor L.

Cardinal, SLUITER, AGENTS, CARDINAL, VAN GESSEL,

WINTHER & CARLSON, Wyoming, Michigan, William

Mitchell III, SHERBOW & MITCHELL, Troy, Michigan,

Kenneth A. Rathert, RATHERT LAW OFFICES, Kalamazoo,

Michigan, John R. Minock, CRAMER, MINOCK &

GALLAGHER, Ann Arbor, Michigan, Stuart G. Friedman,

Ann Arbor, Michigan, Maureen M. Milliron, SHERBOW &

MITCHELL, Troy, Michigan, for Appellants. Barbara Colby

Tanase, UNITED STATES ATTORNEY, Grand Rapids,

Michigan, for Appellee. ON BRIEF: Craig T. Wormley,

MILLER & ASSOCIATES, Santa Monica, California, David

W. Garrett, DAVID W. GARRETT & ASSOCIATES,

Comstock Park, Michigan, Gaylor L. Cardinal, SLUITER,

AGENTS, CARDINAL, VAN GESSEL, WINTHER &

CARLSON, Wyoming, Michigan, William Mitchell III,

SHERBOW & MITCHELL, Troy, Michigan, Kenneth A.

Rathert, RATHERT LAW OFFICES, Kalamazoo, Michigan,

John R. Minock, CRAMER, MINOCK & GALLAGHER,

Ann Arbor, Michigan, Stuart G. Friedman, Ann Arbor,

Michigan, Maureen M. Milliron, SHERBOW & MITCHELL,

Troy, Michigan, C. Mark Pickrell, Nashville, Tennessee, for

Appellants. Barbara Colby Tanase, UNITED STATES

ATTORNEY, Grand Rapids, Michigan, for Appellee. Albert

Derring, Bradford, Pennsylvania, Darryl Ford, Springfield,

Missouri, Charles Washpun, Greenville, Illinois, Troy

Swindle, Pekin, Illinois, pro se.

GILMAN, J., announced the judgment of the court and,

with one exception, delivered the opinion of the court.

MOORE, J., concurred in the opinion except as to Part II.C.3

(the drug dog issue). JONES, J. (pp. 20-25), delivered a

Nos. 98-1353/1391/1533/1534/ United States v. 3

1535/1537/1538/1590/1594/1780 Buchanan, et al.

separate opinion in which he concurred in the above opinion

except as to Parts II.C.3 and II.C.5 (the photo issue).

MOORE, J., joined in this opinion only as to Part I, making

it the opinion of the court as to the drug dog issue.

_________________

OPINION

_________________

RONALD LEE GILMAN, Circuit Judge. The defendants

in this action were convicted of conspiracy to possess and

distribute cocaine in violation of 21 U.S.C. §§ 841(a)(1) and

846. They raise multiple issues in their appeals, including

challenges to the jury selection process, to evidence admitted

at trial, and to their sentences. For the reasons set forth

below, we AFFIRM the convictions and sentences of all of

the defendants except Allie Richard Buchanan, IV. As to

Buchanan, we AFFIRM his conviction, but VACATE his

sentence and REMAND the same for reconsideration in light

of the district court’s erroneous belief that it did not have

discretion to depart from the applicable sentencing guideline.

I. BACKGROUND

A. Factual background

This case involves a large-scale drug organization involving

numerous individuals, including Rodney D. Atkinson,

Buchanan, Albert Derring, Derrick C. Flowers, Darryl Ford,

Eurtis Jones, George Kellum, Otis Murray, III, Troy Swindle,

and Charles Washpun, all of whom are African-American.

The organization, which began operating in and around

Kalamazoo, Michigan in 1990, was formed by Keylen

Tremell Blackmon, Buchanan, and Scott Hughes.

In broad outline, Blackmon, Buchanan, and Hughes

obtained large quantities of cocaine, primarily from sources

in Chicago, and would then distribute the drugs—in some

instances after converting it into cocaine base (“crack”)—to

4 United States v. Nos. 98-1353/1391/1533/1534/ Nos. 98-1353/1391/1533/1534/ United States v. 25

Buchanan, et al. 1535/1537/1538/1590/1594/1780 1535/1537/1538/1590/1594/1780 Buchanan, et al.

various individuals in and around Kalamazoo. Atkinson, photographs had an impact on the outcome of this trial. Their

Derring, Flowers, Ford, Jones, Kellum, Murray, Swindle, and introduction was thus harmless error.

Washpun were all purchasers and/or sellers of the drugs

obtained by Blackmon, Buchanan, and Hughes. The details

of the charged conspiracy will, to the extent necessary, be

discussed in connection with the defendants’ specific

assignments of error.

B. Procedural background

On June 5, 1997, a grand jury indicted twenty-four

individuals—including Buchanan, Derring, Ford, Jones,

Kellum, Murray, Swindle, and Washpun—with conspiracy to

possess and distribute cocaine and cocaine base in violation

of 21 U.S.C. §§ 841(a)(1) and 846. Four of the individuals

were also charged with specific instances of possessing or

distributing the illegal drugs.

A superseding indictment was filed on July 10, 1997, in

which another individual not involved in these appeals was

added to the conspiracy charge. The superseding indictment

also contained money laundering charges and forfeiture

allegations against some of the defendants. On October 1,

1997, Buchanan pled guilty to the conspiracy charge.

A second and final superseding indictment was issued on

October 7, 1997. The new conspiracy charge omitted those

defendants who were originally indicted but who had since

pled guilty, such as Buchanan, and added four new

individuals, including Atkinson and Flowers. In addition to

those modifications, the alleged ending date of the conspiracy

was changed from July of 1996 to June of 1997. Derring pled

guilty on October 29, 1997.

By the beginning of 1998, all but fifteen of those indicted

in the case had entered guilty pleas. Due to the relatively

large number of remaining defendants, the district court

assigned each individual to one of two trials. Atkinson,

Flowers, Ford, Jones, Kellum, Murray, Swindle, and

Washpun constituted the second group. On January 27, 1998,

24 United States v. Nos. 98-1353/1391/1533/1534/ Nos. 98-1353/1391/1533/1534/ United States v. 5

Buchanan, et al. 1535/1537/1538/1590/1594/1780 1535/1537/1538/1590/1594/1780 Buchanan, et al.

to create the inference that these individuals were engaged in one day after their trial began, Swindle moved for a mistrial

illegal narcotics activity at those times. Nor are we on the basis that Blackmon, without warning, revealed to the

comforted, as the district court is, by the fact that the jurors jury that Swindle had made a proffer to the government that

were aware of and could “discount” the possible problems he was, in fact, guilty of the offenses alleged in the

with dog-sniff evidence. Federal Rule of Evidence 403 indictments. The district court, after concluding that a

explicitly recognizes that certain evidence will “confus[e] the limiting instruction would be insufficient, granted the motion

issues [] or mislead[] the jury,” and it is the judge’s duty to and ordered that Swindle be tried at a later date.

exclude such evidence when the potentiality of those effects

substantially outweighs the evidence’s probative value. Fed. On February 3, 1998, a jury convicted each of the

R. Evid. 403. We believe that in this case, the dog-sniff remaining seven defendants. A separate jury convicted

evidence carried just this risk. Swindle in late March of 1998. Unless otherwise stated,

references in this opinion to a “trial” are to the trial which

Despite our concern on this issue, we do not think resulted in the conviction of Atkinson, Flowers, Ford, Jones,

admitting the dog-sniff evidence was reversible error. Even Kellum, Murray, and Washpun, and which originally included

without that evidence, there is substantial other evidence Swindle.

linking both Murray and Washpun to the conspiracy and to

specific criminal actions. On February 19, 1998, the district court sentenced

Buchanan to 156 months of imprisonment. Derring received

II. a 145-month term of incarceration on March 12, 1998. The

district court imposed a 235-month sentence on Ford on April

Second, I am uneasy with the government’s use of the 4, 1998. On May 1, 1998, Atkinson, Flowers, Jones, Kellum,

challenged group photographs in this case. To an Murray, and Washpun were sentenced to respective terms of

undiscerning eye, the use of the photographs showing the 240, 360, 240, 360, 300, and 300 months’ imprisonment.

defendants in a relaxed social setting may seem to be of no Finally, the district court sentenced Swindle to a 324-month

evidentiary consequence. To those who have been victims of term on June 23, 1998.

the subtleties of race, however, the conditioning effect of such

a display is most apparent. In the context of this case, with The defendants then appealed, setting forth a variety of

the racial implications resulting from an all-white jury and an arguments relating to the jury selection process, the

all-black set of defendants, I worry that the photographs, government’s arrangements with certain witnesses, evidence

introduced as early in the trial as they were, likely had an admitted at trial, and their sentences. In several instances, the

improper, not-so-benign racial conditioning effect. Evidence defendants’ individual briefs incorporate by reference the

relating to illicit relationships between defendants which contentions raised by their co-defendants.

might otherwise be viewed with skepticism may

subconsciously have been granted a degree of credibility by

virtue of the photographs at issue. In other words, they

introduce more prejudice than probative value. Once again,

however, given the broader evidence linking defendants

together in this conspiracy, I do not believe the use of these

6 United States v. Nos. 98-1353/1391/1533/1534/ Nos. 98-1353/1391/1533/1534/ United States v. 23

Buchanan, et al. 1535/1537/1538/1590/1594/1780 1535/1537/1538/1590/1594/1780 Buchanan, et al.

II. ANALYSIS presumption against the admissibility of evidence of a

canine’s alert to currency, and that the government can

A. Issues regarding the racial makeup of the jury rebut that presumption only if it first clearly and

and the jury selection process convincingly establishes, outside the presence of the jury,

the relevance and non-prejudicial character of the offered

1. Standard of review evidence.

A district court’s ruling on whether a peremptory challenge 25 F.3d at 1216-17 (Becker, J., concurring in part, dissenting

violates the mandates of Batson v. Kentucky, 476 U.S. 79 in part) (footnotes omitted) (emphasis supplied in original).

(1986), is entitled to great deference, and this court will not

disturb that ruling unless it is clearly erroneous. See Given the unrebutted statistical studies in this and other

Hernandez v. New York, 500 U.S. 352, 364-65 (1991). cases, we find Judge Becker’s view compelling. We believe

“Whether a defendant has been denied his right to a jury that courts should generally presume against the admissibility

selected from a fair cross-section of the community is a mixed of dog-sniff evidence unless the government offers other

question of law and fact, which we review de novo.” United evidence showing a direct nexus between illegal narcotics, the

States v. Allen, 160 F.3d 1096, 1101 (6th Cir. 1998). As to currency in question, and the defendant. Further, when

objections raised for the first time on appeal, we will not set circumstances of the dog-sniff detection in any way cast doubt

aside the rulings of the district court unless they constitute on the reliability of that evidence, such as in Akins, we believe

plain error. See Fed. R. Crim. P. 52(b); United States v. courts should find such evidence inadmissible. Under such a

Segines, 17 F.3d 847, 851 (6th Cir. 1994). presumption, we believe that the facts of both Murray’s and

Washpun’s arrests militated for exclusion of the dog-sniff

2. The defendants’ Batson objection evidence in question. First, as in Carr, the government did

not attempt to rebut the contamination studies. Indeed, one

During jury selection, the government used a peremptory officer testified that she was aware of studies showing that as

challenge to strike the only African-American person selected much as seventy to ninety percent of currency is contaminated

for the jury. Citing Batson, the defendants argued that with some amount of controlled substances, J.A. at 1034-35,

because all of the defendants were African-American, the and none of the witnesses who testified as to the dogs’

challenge was racially motivated. In response, the training countered those findings. Further, in neither case was

government asserted that it excused the juror because of an there a nexus between the currency found and illegal

answer she provided in response to a written question asked narcotics. The dog sniff in Murray’s case followed a traffic

of all potential jurors. The question was as follows: “What stop, and although Murray was found with a large amount of

newspapers, magazines and kinds of books do you read?” cash, he possessed no narcotics. Similarly, the dog sniff in

The juror at issue answered: “Grand Rapids press . . . , I read Washpun’s case came after a routine traffic stop of a car in

mysteries, romances and my Bible. I listen to CNN. I really which Washpun was a passenger. A dog “reacted” to

don’t trust our newspaper.” currency in the glove compartment, as well as to money

which had only seconds before been removed from

Based upon this and other answers, the government, prior Washpun’s person. Nevertheless, officers found no drugs in

to learning of each juror’s race, assessed the desirability of Washpun’s car. Given the studies cited above, we find it

each person. The juror at issue had received a “fairly low” disquieting that prosecutors utilized dog-sniff evidence alone

rating. In response to the defendants’ objection, and before

22 United States v. Nos. 98-1353/1391/1533/1534/ Nos. 98-1353/1391/1533/1534/ United States v. 7

Buchanan, et al. 1535/1537/1538/1590/1594/1780 1535/1537/1538/1590/1594/1780 Buchanan, et al.

Nevertheless, such cases also involved unique circumstances. the district court commented on the strength of their

In Saccoccia, the appellant had not presented findings to the challenge, the government stated that the last portion of the

district court regarding the non-reliability of such evidence, so juror’s answer—“I really don’t trust our

those materials could not inform the district court’s decision. newspaper”—indicated, in its view, “a general distrust of

See 58 F.3d at 777 n.19; cf. Carr v. United States, 25 F.3d what she read or saw or heard.” The district court then

1194, 1202 n.3 (3d Cir. 1994) (declining to take judicial overruled the Batson objection, finding the government’s

notice that nearly all currency contains detectable traces of justification “logical” and race-neutral. On appeal, the

narcotics). And in Akins, illegal drugs were found in the bag defendants contend that the government’s reason for the

of the defendant whose money was also sniffed by a narcotics peremptory challenge was “merely subterfuge” for its “real

dog. See 995 F. Supp. at 814. Indeed, when there were other purpose” of excluding the juror because of her race.

factors diminishing the reliability of a separate dog sniff, the

Akins Court concluded that the evidence was unduly “The government cannot use its peremptory challenges in

prejudicial and did not allow its admission. See 995 F. Supp. a criminal case to exclude members of the venire from the

at 814 (finding limited probative value and unfair prejudice jury solely on the basis of their race.” United States v. Hill,

for a sniff of money which was contained in a drawer in a 146 F.3d 337, 340 (6th Cir. 1998). In determining whether

DEA interdiction room). such a violation occurred, the framework is well-settled:

In Carr, Judge Becker voiced perhaps the strongest case for To establish a violation of equal protection under Batson,

finding dog-sniff evidence inadmissible in particular cases: the defendant must first make a prima facie showing that

the prosecutor exercised peremptory challenges based on

If any of the many studies [regarding currency race. The burden of persuasion then shifts to the

contamination] is valid, then the fact that a dog alerted to prosecution to articulate race-neutral reasons for the

a large number of bills in United States currency which strikes. The prosecutor must convey a reason that is

has circulated in a major metropolitan center (at which “clear and reasonably specific.”

the studies are directed) is meaningless and likely quite

unfairly prejudicial, see Fed. R. Evid. 403, and evidence United States v. Gibbs, 182 F.3d 408, 438-39 (6th Cir. 1999)

thereof should have been excluded. Although having (citing and quoting Batson) (citations omitted). The reason

been directed to many of the studies . . . , the government given, however, “need not be particularly persuasive, or even

in its brief has not disputed the validity of any of the plausible, so long as it is neutral.” United States v. Harris,

studies mentioned above [nor] pointed to any 192 F.3d 580, 586 (6th Cir. 1999).

countervailing studies . . . . It is thus my considered

opinion that the fact that numerous studies by Here, the government offered its reason for striking the

governmental and private agencies, studies which stand juror in question before the district court could evaluate

unrefuted, strongly suggest that a trained canine will alert whether the defendants had set forth a prima facie case. Such

to all bundles of used currency does not permit the jury a sequence of events “renders the initial question of whether

to draw a reasonable inference that the person in prior the defendant[s] established a prima facie case moot.” Id. at

possession of such currency was a drug trafficker or 587 (citing Hernandez v. New York, 500 U.S. 352, 359

associated with one. Indeed, I am inclined to the view (1991)). The prosecutor in this case, as noted above,

that the information now available establishes a strong expressed the belief that there was a risk that the juror would

8 United States v. Nos. 98-1353/1391/1533/1534/ Nos. 98-1353/1391/1533/1534/ United States v. 21

Buchanan, et al. 1535/1537/1538/1590/1594/1780 1535/1537/1538/1590/1594/1780 Buchanan, et al.

“distrust” what she may hear or read during the course of the evidence.2 In United States v. $5,000 in United States

trial. This belief was based on the juror’s written comment Currency, 40 F.3d 846 (6th Cir. 1994), this court held that the

that she did not trust her newspaper. We conclude that such evidentiary value of the narcotics dog’s alert was minimal,

a belief, although perhaps not “particularly persuasive,” was and “insufficiently indicative of probable cause.” Id. at 848-

at least plausible and a sufficiently neutral justification to 49. The court cited cases and studies indicating that up to

overcome the defendants’ Batson challenge. ninety percent or more of bills test positive for traces of

cocaine. See id. at 849. This conclusion followed a previous

3. The defendants’ challenge to the jury venire panel which had found that dog-sniff evidence had only weak

probative value. See United States v. $53,082.00 in United

At the conclusion of the jury selection process, the States Currency, 985 F.2d 245, 250 n.5 (6th Cir. 1993).

defendants objected to the racial makeup of the entire jury Other circuits have similarly doubted the utility of such

panel itself, contending that it was not representative of the evidence. See, e.g., United States Currency, $30,060.00, 39

voting or driving population of the Western District of F.3d at 1043 (concluding that statistics showing widespread

Michigan. In response to a request by the district court, the currency contamination greatly diminishes the probative value

government called the jury clerk to testify about the of positive dog sniffs of money, and that continued reliance

procedures used to assemble jury venires in the district. The of courts and law enforcement officers on such evidence is

district court thereafter overruled the objection. In their “logically indefensible”) (citation omitted); United States v.

appeals, the defendants assert that the Jury Selection and $191,910.000 in United States Currency, 16 F.3d 1051, 1062

Service Act, 28 U.S.C. §§ 1861-78, and the Sixth n.21 (9th Cir. 1994) (noting that “[i]n recent years, courts

Amendment entitled them to a jury venire that contained more have increasingly questioned the reliability of dog alerts” on

African-Americans. currency); Jones v. Drug Enforcement Agency, 819 F. Supp.

698, 719, 720 (M.D. Tenn. 1993) (concluding that because

“The Sixth Amendment requires that the jury venire from contaminated currency is widespread, evidence of a “narcotic-

which a jury is selected represent a ‘fair cross-section’ of the trained dog’s ‘alert’ to the currency is of extremely little

community.” United States v. Allen, 160 F.3d 1096, 1103 probative weight”).

(6th Cir. 1998) (quoting Taylor v. Louisiana, 419 U.S. 522,

528 (1975)). The factors to consider are set forth in Duren v. Courts generally have not translated these doubts in the

Missouri, 439 U.S. 357 (1979), and are as follows: forfeiture realm into an outright prohibition under Fed. R.

Evid. 403. See, e.g., United States v. Saccoccia, 58 F.3d 754,

In order to establish a prima facie violation of the 778 (1st Cir. 1995) (affirming admission of dog-sniff

fair-cross-section requirement, the defendant must show evidence); United States v. Akins, 995 F. Supp. 797, 814

(1) that the group alleged to be excluded is a “distinctive” (M.D. Tenn. 1998) (allowing dog-sniff evidence and

group in the community; (2) that the representation of concluding that it was not “unduly prejudicial”).

this group in venires from which juries are selected is not

fair and reasonable in relation to the number of such

persons in the community; and (3) that this

underrepresentation is due to systematic exclusion of the 2

The issue of the reliability of dog-sniff evidence emerges in two

group in the jury-selection process. different contexts: 1) as here, whether it should be allowed as evidence,

and 2) whether it is sufficiently indicative of probable cause for forfeiture

purposes.

20 United States v. Nos. 98-1353/1391/1533/1534/ Nos. 98-1353/1391/1533/1534/ United States v. 9

Buchanan, et al. 1535/1537/1538/1590/1594/1780 1535/1537/1538/1590/1594/1780 Buchanan, et al.

______________________ Id. at 364. In this case, the government acknowledges that

African-Americans are a “distinctive” group for the purposes

CONCURRENCE of the Duren analysis. But even if the defendants could show

______________________ that the jury venire assembled for their trial was

underrepresentative of their community, they have failed to

NATHANIEL R. JONES, Circuit Judge, concurring, with show that such underrepresentation was the result of a

MOORE, J., joining in Part I only. “systematic exclusion” of African-Americans from the jury

selection process.

I.

The testimony of the jury clerk established that African-

We concur with the majority, and agree with its reasoning Americans comprise 4.58% of the total population of the

on most aspects of this complex case. Nonetheless, we write counties located within the Grand Rapids jury wheel. Of

separately because we are persuaded by Murray’s and those residents who qualify for jury service, 2.49% are

Washpun’s argument that the officer testimony that trained African-American. In the instant action, there were two

canines reacted positively to currency found on them should African-Americans in a venire of seventy, constituting 2.86%

have been ruled inadmissible. Both defendants contend that of the venire, which slightly exceeds the proportion of

this “dog-sniff” evidence is inherently unreliable because it African-Americans in the Grand Rapids area qualified to

does not necessarily indicate drug activity on their part, citing serve as jurors. These statistics indicate that there was no

studies finding that anywhere from seventy to ninety-six1 violation of the fair cross-section requirement in this case.

percent of United States currency is tainted with narcotics. Moreover, even if the statistics could be viewed as

They presented these statistics to the district court through underrepresentative, the defendants did not present any

their motions in limine and oral arguments. evidence of “systematic exclusion.” Accordingly, we

conclude that the district court did not err on this issue.

We agree that this dog-sniff evidence was inherently

unreliable and that the court abused its discretion in admitting 4. The defendants’ contentions regarding the

it. In recent years, this court and others have expressed method and manner of the jury selection

skepticism regarding the probative value of dog-sniff process

For the first time on appeal, the defendants take issue with

the method and manner of the jury selection process.

Specifically, they complain that the district court “unduly

restricted” their ability to exercise their challenges by

1

requiring that one attorney serve as lead counsel during voir

Defendants cite two reasons that such a large percentage of currency dire, and by setting time limits for deciding whether to

is tainted with narcotics. First, when currency is run through a exercise a peremptory challenge on a particular juror. None

mechanized counter at a bank, narcotics contained on some of the of the briefs provide any detail concerning the time limits

currency gets into the counter and is transferred to other currency.

Second, the ink on currency bonds with the narcotics. This argument imposed. Pursuant to Rule 52(b) of the Federal Rules of

echoes other courts’ and studies’ conclusions regarding “contaminated” Criminal Procedure, this court reviews such claims under the

money. See, e.g., United States v. United States Currency, $30,060.00, “plain error” standard. We find an insufficient basis in the

39 F.3d 1039, 1042 (9th Cir. 1994).

10 United States v. Nos. 98-1353/1391/1533/1534/ Nos. 98-1353/1391/1533/1534/ United States v. 19

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record to support the defendants’ jury selection claims, much VACATE his sentence and REMAND the same for

less any evidence of plain error. reconsideration in light of the district court’s erroneous belief

that it did not have discretion to depart from the applicable

B. Issue regarding leniency offered certain government sentencing guideline.

witnesses

The defendants contend that, by offering leniency to several

witnesses who testified at trial, the government violated 18

U.S.C. § 201. That section provides, in pertinent part, as

follows:

Whoever . . . directly or indirectly, gives, offers or

promises anything of value to any person, for or because

of the testimony under oath or affirmation given or to be

given by such person as a witness upon a trial, hearing,

or other proceeding, before any court . . . shall be fined

under this title or imprisoned for not more than two

years, or both.

Id. § 201(c)(2).

The defendants’ challenge essentially invokes the now

well-known Tenth Circuit decision of United States v.

Singleton, 144 F.3d 1343 (10th Cir. 1998), which has since

been vacated and rejected en banc, 165 F.3d 1297 (10th Cir.

1999). Moreover, this court has previously ruled that such

prosecutorial conduct does not implicate § 201(c)(2). See

United States v. Ware, 161 F.3d 414, 418-24 (6th Cir. 1998)

(holding that § 201(c)(2) does not preclude the government

from offering leniency to a defendant’s accomplice in

exchange for truthful testimony against the defendant).

Accordingly, we find no merit in this argument.

C. Issues regarding evidence admitted during the trial

1. Standard of review

“The trial court’s determinations of admissibility and

relevancy depend on the exercise of sound judgment within

the context of the entire trial. The trial court's determination

18 United States v. Nos. 98-1353/1391/1533/1534/ Nos. 98-1353/1391/1533/1534/ United States v. 11

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5. Other sentencing issues should not be disturbed absent a clear abuse of discretion.”

United States v. Seago, 930 F.2d 482, 494 (6th Cir. 1991)

The other sentencing issues raised by the defendants (citations omitted).

concern the quantity of drugs attributable to each individual,

the adequacy of the factual findings of the district court, and 2. Evidence of particular drug transactions

the fairness of their comparative sentences. We have involving Kellum and Murray

carefully reviewed the record as to each of these contentions

and find them to be without merit, much less rising to the At trial, evidence was admitted regarding the 1990 seizure

“clearly erroneous” level. of sixty-four crack “baggies” from Kellum. In addition,

Murray unsuccessfully sought to exclude evidence of a

E. Swindle’s appeal controlled sale of crack by him to an undercover police officer

in 1994. On appeal, both Kellum and Murray argue that the

Swindle’s counsel filed a brief on appeal and also a motion testimony by the police regarding the seizure and the drug

to withdraw pursuant to Anders v. California, 386 U.S. 738 transaction constituted evidence of “other acts” that should

(1967). After a review of the entire record, counsel was of the have been excluded pursuant to Rule 404(b) of the Federal

opinion that there were no meritorious grounds for appeal. Rules of Evidence. In response, the government contends that

He did, however, identify nine conceivable issues. These the testimony was admissible as evidence of acts in

included the questions of whether the buyers and sellers furtherance of the conspiracy.

charged in the case could properly be considered a part of the

charged conspiracy, whether statements of coconspirators Rule 404(b) provides as follows:

were introduced against Swindle in violation of the hearsay

rule, whether his criminal history score should include a point Evidence of other crimes, wrongs, or acts is not

for a thirty-day sentence of secured detention imposed when admissible to prove the character of a person in order to

he was a juvenile, and whether the district court erred by show action in conformity therewith. It may, however,

considering Swindle’s prior marijuana conviction when be admissible for other purposes, such as proof of

assessing his criminal history. In a separate pro se brief, motive, opportunity, intent, preparation, plan,

Swindle raises several of the challenges already discussed in knowledge, identity, or absence of mistake or accident,

connection with the other defendants, and further contends provided that upon request by the accused, the

that his counsel rendered ineffective assistance by failing to prosecution in a criminal case shall provide reasonable

request a lesser-included offense instruction and that the notice in advance of trial, or during trial if the court

district court failed to determine at sentencing whether he excuses pretrial notice on good cause shown, of the

should be held accountable for the criminal activity of others. general nature of any such evidence it intends to

Our review of the record convinces us that none of the above introduce at trial.

contentions has any merit.

Fed. R. Evid. 404(b). Here, however, Rule 404(b) is not

III. CONCLUSION applicable because the evidence constitutes “a continuing

pattern of illegal activity.” United States v. Barnes, 49 F.3d

For the reasons set forth above, we AFFIRM the 1144, 1149 (6th Cir. 1995). Even if Rule 404(b) applied in

convictions and sentences of all of the defendants except this situation, the district court did not abuse its discretion in

Buchanan. As to Buchanan, we AFFIRM his conviction, but

12 United States v. Nos. 98-1353/1391/1533/1534/ Nos. 98-1353/1391/1533/1534/ United States v. 17

Buchanan, et al. 1535/1537/1538/1590/1594/1780 1535/1537/1538/1590/1594/1780 Buchanan, et al.

admitting the testimony because the evidence served the Criminal Procedure. Pursuant to Derring’s plea agreement,

“legitimate purpose of showing the background and the government had “agree[d] to make a good faith evaluation

development of a conspiracy.” United States v. Paulino, 935 of [his] cooperation under th[e] agreement in determining

F.2d 739, 755 (6th Cir. 1991) (citations and internal quotation whether to move for a reduction of [his] sentence . . . .”

marks omitted). Thus, the defendants’ argument is without Derring contends that although his plea agreement did not

merit. require the government to make such a motion, the

government’s decision must have been based on an

3. Evidence of drug-sniffing dogs’ positive unconstitutional reason in light of his full cooperation. He

indications of a narcotics scent on currency suggests that the government discriminated against him on the

seized from Murray and Washpun basis of his age when it made a substantial assistance motion

in connection with a younger co-defendant, but not himself.

In their appeal, Murray and Washpun also take issue with In response, the government argues that (1) Derring never

the district court’s decision to admit evidence that dogs objected at sentencing and (2) it declined to file a substantial

trained to detect the scent of narcotics reacted positively to assistance motion because of Derring’s breakdown in

currency seized from them. They contend that such evidence cooperation, including a motion by Derring to withdraw his

should have been excluded pursuant to Rule 403 of the guilty plea.

Federal Rules of Evidence. In response, the government

concedes that the Sixth Circuit views such evidence as having The record does not indicate why the government chose not

minimal probative value, but argues that the evidence is to move for a reduction. This fact, however, does not by itself

nonetheless admissible. imply that the government was motivated by an

unconstitutional reason, nor does it entitle Derring to a

Rule 403, in pertinent part, provides that “evidence may be hearing on the matter. See United States v. Bagnoli, 7 F.3d

excluded if its probative value is substantially outweighed by 90, 91-92 (6th Cir. 1993) (holding that the defendant was not

the danger of unfair prejudice . . . .” Fed. R. Evid. 403. Prior entitled to a hearing as to whether the government acted

cases support the proposition that because a high percentage unconstitutionally by not filing a substantial assistance

of currency in circulation is tainted with a scent or residue of motion, despite the fact that the defendant provided some

narcotics, evidence of a positive indication by a drug-sniffing assistance and the government did not expressly explain its

dog may have minimal evidentiary value. See United States reasons for declining to file the motion). In essence, the

v. $5,000 in U.S. Currency, 40 F.3d 846, 849 (6th Cir. 1994). government has discretion in deciding whether to file a

Indeed, Judge Becker of the Third Circuit has set forth a substantial assistance motion. That decision will not be

compelling argument that there should be a strong questioned unless the defendant can make “a substantial

presumption against the admissibility of such evidence. See threshold showing of an unconstitutional motive.” Id. at 92.

United States v. Carr, 25 F.3d 1194, 1214-18 (3rd Cir. 1994) Our review of the record reveals that Derring failed to make

(Becker, J., concurring in part and dissenting in part). Other such a showing. As such he was not entitled to a hearing and

cases, however, instruct otherwise. See, e.g., United States v. his argument on appeal is without merit.

Golb, 69 F.3d 1417, 1428 (9th Cir. 1995) (holding that the

district court did not abuse its discretion in admitting

evidence of currency dog-sniffs and noting that “it was within

the jury’s province to resolve these competing opinions and

16 United States v. Nos. 98-1353/1391/1533/1534/ Nos. 98-1353/1391/1533/1534/ United States v. 13

Buchanan, et al. 1535/1537/1538/1590/1594/1780 1535/1537/1538/1590/1594/1780 Buchanan, et al.

not affirmatively show that the district judge knew he had determine what weight to accord the government's

such authority). evidence”); United States v. Saccoccia, 58 F.3d 754, 777-78

(1st Cir. 1995) (“Even though widespread contamination of

The district court specifically expressed its belief, however, currency plainly lessens the impact of dog sniff evidence, a

that it could not consider Buchanan’s alleged withdrawal trained dog’s alert still retains some probative value. . . .

from criminal activity prior to his arrest. At sentencing, the [T]hough the dog sniff evidence likely bolstered the

district court stated as follows: “[T]he guidelines definitely do prosecution’s case and served to inculpate the defendant, we

not allow for the Court to look at that period of time between are not convinced that it presented a substantial risk of unfair

the time of ceasing of criminal activity and the time of prejudice.”).

apprehension to say this is a different level.” Although we

express no opinion as to whether such action warrants a Given the uncertainty of this issue, Washpun’s and

downward departure, the district court was obligated to Murray’s arguments might have merit. Nonetheless, I see no

consider it because it is a mitigating factor that has not been need to presently decide the question of whether there should

adequately considered in formulating the Sentencing be a presumption against the admissibility of testimony

Guidelines. See United States v. Coleman, 188 F.3d 354, regarding a drug dog’s positive indications of narcotics

358-60 (6th Cir. 1999) (en banc) (holding that a district court residue on currency seized from a defendant. Even if the

may not categorically exclude any non-prohibited factors district court did in fact abuse its discretion in admitting the

from consideration for departure). In Coleman, we noted as testimony regarding the dogs’ alerts, any error was harmless

follows: in light of the substantial amount of other evidence linking

both Murray and Washpun to the conspiracy and to specific

[T]here are an unquantifiable number of potential criminal actions.

departure factors, including heretofore unknown factors

that have not been previously considered by a court. 4. The use of certain drug and packaging

Simply because a court has not directly ruled on the exhibits as demonstrative aids during the

factor at issue does not excuse the district court from testimony of the government’s drug-

considering the factor as a potential basis for a downward trafficking expert

departure.

At trial, a government witness with expert knowledge of the

Id. at 359. Accordingly, we must vacate Buchanan’s sentence inner workings of the drug-trafficking trade testified about the

and remand the case to the district court for the limited way in which drug dealers package and distribute narcotics.

purpose of considering whether Buchanan’s alleged To illustrate the testimony, the government marked for

withdrawal from criminal activity prior to arrest warrants a identification purposes actual packages of powder cocaine

downward departure. and crack cocaine. These packages were never introduced

into evidence, but were seen by the jury. On appeal, the

4. Derring’s assertion that the government defendants contend that the use of such demonstrative aids

breached the terms of his plea agreement was inflammatory and improper.

Derring challenges the government’s decision to forego We disagree. Our review of the record indicates no

filing a motion to reduce his sentence for substantial inappropriate use of the packages. Immediately after each

assistance as permitted by Rule 35(b) of the Federal Rules of

14 United States v. Nos. 98-1353/1391/1533/1534/ Nos. 98-1353/1391/1533/1534/ United States v. 15

Buchanan, et al. 1535/1537/1538/1590/1594/1780 1535/1537/1538/1590/1594/1780 Buchanan, et al.

package was identified, the government, through questioning, 2. The nature of the drugs involved in the

established that the drugs exhibited were not seized from the conspiracy

defendants in this case. Moreover, the defendants failed to

object to the use of the demonstrative evidence and did not For the first time on appeal, several defendants challenge

request a limiting instruction. Based upon the foregoing, we the adequacy of the district court’s findings with respect to the

conclude that the use of the packages was permissible. nature of the drugs involved in the conspiracy. They contend

that there was insufficient evidence that the narcotics were

5. Other evidentiary issues crack cocaine as opposed to powder cocaine. This argument

lacks merit. There was extensive evidence in the record that

The remaining evidentiary rulings challenged by one or the conspiracy involved both forms of cocaine and that the

more of the defendants concern the admissibility of defendants frequently “cooked” powder cocaine to convert it

photographs depicting the defendants consorting with each to crack. As this court has previously noted, the government

other and with other co-conspirators, the admissibility of a may establish the identity of a drug by circumstantial

videotape showing Ford engaging in a drug transaction, and evidence. See United States v. Wright, 16 F.3d 1429, 1439

the timing of the government’s disclosure of that videotape to (6th Cir. 1994). Moreover, expert testimony is not necessary.

defense counsel. After viewing the photos, we find nothing A lay witness who has personal experience with crack cocaine

inflammatory or unfairly prejudicial about them, and our can establish that a substance is, indeed, crack. See id. at

examination of the record as to each of the other contentions 1439-40 (affirming the district court’s finding that the

shows them to be without merit. There is no just basis to find substance involved was crack cocaine based on testimony

an abuse of discretion by the district court on these from several government witnesses who had seen the

evidentiary issues. defendant “cutting” crack or had seen the substance and knew

it was crack based on their personal experience).

D. Sentencing issues

3. Buchanan’s motions for downward departure

1. Standard of review

On appeal, Buchanan asserts that the district court erred by

A district court’s factual findings underlying the application refusing to depart downward as to his criminal history

of the sentencing guidelines will not be disturbed unless category and his offense level. As noted above, a decision not

found to be clearly erroneous. See United States v. Mahaffey, to depart is unappealable unless a defendant can establish that

53 F.3d 128, 131 (6th Cir. 1995). Sentencing issues raised for the district court was unaware of its discretion to do so. With

the first time on appeal will not be considered unless the one exception, Buchanan has failed to make such a showing.

underlying ruling constitutes plain error. See United States v. A review of the record reveals that the district court

Barajas-Nunez, 91 F.3d 826, 830 (6th Cir. 1996). If the specifically considered Buchanan’s motions, but determined

district court is aware of its discretion to depart from the that a departure was not warranted. Such expressed

guidelines on the issue before it, a decision to forego a consideration is a sufficient indicator that the district court

downward departure is not appealable. See United States v. was aware of its authority to depart. See United States v.

Welch, 97 F.3d 142, 152 (6th Cir. 1996). Byrd, 53 F.3d 144, 145 (6th Cir. 1995) (rejecting the

defendant’s attempt to establish that the district court was

unaware of its discretion to depart even where the record did