United States v. Sheldon

RECOMMENDED FOR FULL-TEXT PUBLICATION

Pursuant to Sixth Circuit Rule 206

File Name: 07a0371p.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. 06-6266/6298/6564

v.

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JAMES WENDELL ROACH (06-6266/6564) and -

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Defendants-Appellants. -

PATRICK JAMES SHELDON (06-6298),

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Appeal from the United States District Court

for the Eastern District of Tennessee at Greeneville.

No. 05-00080—J. Ronnie Greer, District Judge.

Argued: July 27, 2007

Decided and Filed: September 11, 2007

Before: GILMAN and GRIFFIN, Circuit Judges; ACKERMAN, District Judge.*

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COUNSEL

ARGUED: Nikki C. Pierce, FEDERAL DEFENDER SERVICES, Greeneville, Tennessee, S.

Joanne Sheldon, Newport, Tennessee, for Appellants. M. Neil Smith, ASSISTANT UNITED

STATES ATTORNEY, Greeneville, Tennessee, for Appellee. ON BRIEF: Nikki C. Pierce, Tim

S. Moore, FEDERAL DEFENDER SERVICES, Greeneville, Tennessee, S. Joanne Sheldon,

Newport, Tennessee, for Appellants. M. Neil Smith, ASSISTANT UNITED STATES

ATTORNEY, Greeneville, Tennessee, for Appellee.

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OPINION

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RONALD LEE GILMAN, Circuit Judge. In 2006, a jury convicted former Newport,

Tennessee Police Officer James Wendell Roach of depriving two Hispanic men of their civil rights

under color of law, in violation of 18 U.S.C. § 242, and convicted former Newport, Tennessee Police

Officer Patrick James Sheldon of being an accessory after the fact, in violation of 18 U.S.C. § 3.

Roach was sentenced to 10 months of imprisonment and Sheldon was given two years of probation.

The district court also denied Roach’s motion for bond pending appeal. For the reasons set forth

*

The Honorable Harold A. Ackerman, Senior United States District Judge for the District of New Jersey, sitting

by designation.

1

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below, we AFFIRM both the judgment of the district court and its denial of Roach’s motion for

release on bond.

I. BACKGROUND

A. Factual background

Roach and Sheldon were both sergeants with the Newport, Tennessee Police Department.

While on patrol on Saturday, March 12, 2005, at approximately 5:20 p.m., they allegedly stopped,

without probable cause, a van driven by Wilder Gomez Roblero (Gomez). Marcos Mejia Vasques

(Mejia) was a passenger in the van. Both men were illegal aliens. During the stop, Roach allegedly

took five twenty-dollar bills from Mejia’s wallet and additional money from Gomez’s wallet. He

then purportedly ordered the men on their way before either Mejia or Gomez discovered the loss.

No traffic citations were issued as a result of the stop.

On the afternoon in question, Gomez and Mejia were driving in Gomez’s minivan to the

Wal-Mart in Newport. Gomez had a cell phone with him in the car. He received a phone call not

long after he and Mejia left Gomez’s home. A few minutes later, as Gomez drove toward the

intersection of Mineral Street and Woodlawn Avenue in Newport, Gomez was pulled over by what

he described as a black-and-white police car. The police car did not have a light-bar on its roof;

instead, its blue lights were inside the car.

Two police officers emerged, one approaching each side of the minivan. The officer on

Mejia’s side of the van was wearing sunglasses. Mejia was ordered out of the van, frisked, and his

wallet inspected. Gomez testified that the officer on his side of the minivan was more polite, and

asked for his driver’s license. The officer then ordered Gomez out of the vehicle, and directed him

to the passenger side where he was also frisked and his wallet taken from his pocket. Gomez’s

wallet was returned to his pocket and he was directed to leave. As Gomez and Mejia drove away,

Mejia opened his wallet and discovered that money had been taken. Gomez testified that money was

missing from his wallet as well. The men then drove from the traffic stop to Gomez’s house, where

Gomez’s wife suggested that they report the theft to Maria De La Cruz, an acquaintance who worked

as a translator for the Cocke County, Tennessee Health Department.

Gomez called De La Cruz on his cell phone, but her number rang busy. He called again

shortly thereafter and spoke with her. She, in turn, called 911 and spoke with a dispatcher about the

incident. A Newport Police Department supervisor later contacted De La Cruz to say that Gomez

and Mejia would need to speak with the Chief of Police, Maurice Shults, on the following Monday

if they wished to pursue their complaint.

Gomez and Mejia, accompanied by De La Cruz, met with Shults on that Monday. Shults

asked Gomez and Mejia to view a photo array of officers with the Newport Police Department on

his computer. Mejia was unable to identify the officer who had come to his side of the van. Gomez,

however, identified Sheldon as the officer who came over to the driver’s window. Shults also asked

the men to look at the department’s patrol cars and to identify the car that had stopped them. Gomez

and Mejia identified Unit 18, the only black-and-white patrol car without a light-bar on its roof (thus

referred to as a “slick-top”). Unit 18 also lacked an in-car video recording system. Sheldon and

Roach had been assigned to Unit 18 at the time of the incident. Shults then contacted the Tennessee

Bureau of Investigation (TBI) and asked it to take over the inquiry.

TBI Special Agent Geoff King interviewed Sheldon about Gomez’s and Mejia’s complaint

on Monday, March 14, 2005. Sheldon denied that he and Roach had stopped any Hispanics on the

day of the alleged incident. Instead, he recounted that he and Roach had been at the By-Lo Grocery

in Newport at the time that Gomez and Mejia claimed the stop had occurred. After leaving the

grocery, Sheldon told King that a woman whose car had been vandalized flagged down his patrol

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car. Roach and Sheldon then conducted a traffic stop of Roy Maples, whom they believed to be

driving with a revoked or suspended license, a stop that was documented as occurring at 5:35 p.m.

King also interviewed Michael Gray, an emergency medical technician who worked for

Allied Emergency Medical Service, a private ambulance company. Allied had a station house at the

intersection of Jones Circle and Mineral Street in Newport. Gray was on duty on the day of the

alleged stop. Sometime between 5:00 and 6:00 p.m. on March 12, 2005, Gray was washing his

personal vehicle outside the station house. He observed a Newport Police Department patrol car pull

over a dark-colored minivan across the street from the Allied station. Gray further testified that he

recognized the officers in the car as Roach and Sheldon. The driver of the van, according to Gray,

was a dark-skinned Hispanic man. Gray went back inside the station house before the vehicles left.

After speaking with Gray, King again interviewed Sheldon. King reviewed Sheldon’s previous

statement and then asked if there was anything that Sheldon wished to add or change about the

information that he had provided. Sheldon declined to make any changes or additions.

King then interviewed Roach. Like Sheldon, Roach denied stopping Gomez and Mejia, or

any other Hispanic individuals, on the day in question. Roach instead told King that he and Sheldon

had left the police station some time after 5:00 p.m., drove to Wal-Mart and stayed inside for

approximately twenty minutes, then drove to the By-Lo Grocery, where they stayed for another 30

or 40 minutes. After leaving the grocery, Roach said that he and Sheldon were flagged down by a

woman whose car had been vandalized. Their next action, according to Roach, was the traffic stop

involving Roy Maples.

At trial, Chief Shults testified that the driving time from the police station to the Wal-Mart

was approximately six minutes, and the driving time from the Wal-Mart to the Allied EMS station

house was approximately four minutes. This testimony demonstrated that Roach and Sheldon would

have been able to conduct the traffic stop of Gomez and Mejia at 5:20 p.m. and still have been able

to conduct the traffic stop of Roy Maples at 5:35 p.m. Furthermore, TBI Agent King said that the

time line of events given by Roach and Sheldon was contradicted by surveillance-camera photos

taken at Wal-Mart, which showed the officers entering the store shortly before 5:00 p.m. and leaving

approximately three minutes later.

Kathy Cody, the director of Cocke County 911, also testified at trial and introduced a

recording of telephone and radio traffic with police officers that was made on March 12, 2005. The

recording indicated that Sheldon had called in a license plate for identification at approximately 5:26

p.m. as part of the Roy Maples traffic stop. But Cody testified that the time-stamps on the recording

were approximately nine minutes behind the actual time that the events occurred, a discrepancy that

she discovered only upon making the recording for the TBI investigators. Accordingly, the actual

time that Sheldon placed the license plate identification request was approximately 5:35 p.m. The

police telephone and radio traffic recording contained no calls from Sheldon or Roach prior to the

Roy Maples stop. In contrast, the recording confirmed that De La Cruz had called the dispatcher

to report the alleged theft at approximately 5:44 p.m. (actual time) on March 12, 2005.

Gomez’s coworker Sandra Boles testified that she had loaned Gomez an extra cell phone on

her cell-phone account and that he paid her for the calls that he made when she received her phone

bill. She also said that Gomez had called her on Sunday, March 13, 2005, and told her that he and

Mejia had been robbed by two policemen. Gomez, in turn, testified that he remembered receiving

a call on the borrowed cell phone soon after leaving home on the afternoon of the alleged traffic

stop.

The government introduced evidence of Boles’s cell phone records through the testimony

of Autumn Click, a Verizon representative. Click testified that Gomez had received calls at 5:18

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p.m. and 5:20 p.m. on March 12, 2005, and that the phone had been used to place a call to De La

Cruz’s home phone at 5:37 p.m.

B. Procedural background

Roach and Sheldon were initially charged in a three-count indictment with depriving Gomez

(Count II) and Mejia (Count III) of their civil rights under color of law in violation of 18 U.S.C.

§ 242, and with conspiracy to do the same in violation of 18 U.S.C. § 241 (Count I). Both

defendants filed motions to dismiss the indictment, alleging that the government had violated their

Fifth, Sixth, and Fourteenth Amendment rights by sending agents with the Federal Bureau of

Investigation (FBI) to interview a translator working with the investigator hired by defense counsel.

Following an evidentiary hearing on the motions, the assigned magistrate judge recommended that

the district court deny the motions as meritless. The district court held a hearing on the defendants’

objections to the magistrate judge’s Report and Recommendation. In a subsequent written order,

the district court adopted the recommendation of the magistrate judge and denied the motions to

dismiss the indictment.

The trial commenced on February 2, 2006. Deliberations by the jury began on the afternoon

of February 7, 2006. On February 8, 2006, the jury returned a verdict of not guilty as to the

conspiracy count against both defendants. The district court then instructed the jurors to return the

following morning to continue deliberations as to the remaining counts of the indictment. When the

jury indicated on February 9, 2006 that it was deadlocked, the district court declared a mistrial as

to the deprivation-of-civil-rights counts against Roach and Sheldon. A new trial was set for March

21, 2006.

On February 14, 2006, the grand jury returned a superseding indictment against Roach and

Sheldon. The superseding indictment again charged both officers with depriving Gomez (Count I)

and Mejia (Count II) of their civil rights under color of law, omitted the conspiracy charge, and

charged Sheldon with being an accessory after the fact (Count III). Roach and Sheldon filed a joint

motion to dismiss the superseding indictment’s civil rights charges. Sheldon also filed a separate

motion to dismiss the new accessory charge directed solely against him. Finally, the defendants

jointly filed a motion in limine, alleging government intimidation of prospective defense witness

Charles “Mo” Swanson. After a hearing on all three motions, the district court denied the motions

to dismiss and deferred a ruling on the motion in limine.

The second trial began on April 5, 2006 and lasted three days. Immediately before opening

statements in the second trial, the district court heard additional arguments on the defendants’

allegation of government intimidation. Counsel for the defendants contended that the government

was gathering information about unspecified prior bad acts by Swanson for the purpose of bringing

charges against him if he testified on behalf of Roach and Sheldon. Although Swanson was not

present, his counsel related to the court that Swanson had been told that the government was

interviewing confidential informants about his background. Counsel for Swanson also asserted that

Swanson had learned that one of his employees, who had quit unexpectedly a week earlier, was a

government “plant.” Roach and Sheldon asked the court to grant Swanson immunity from

prosecution for any prior unspecified acts. The court, finding no evidence of prosecutorial

misconduct, refused. Swanson was never called to testify.

Jury deliberations in the second trial began on April 10, 2006 at 2:45 p.m. After less than

three hours, the jury sent a message to the district court indicating that it was having difficulty

reaching a verdict. The court directed the jurors to continue deliberating the following morning.

On April 11, 2006, the jury deliberated from 9:00 a.m. until 12:00 p.m., took a break for lunch, then

resumed deliberations at 1:15 p.m. The court received a second message from the jury at

approximately 2:30 p.m., again indicating that it was having trouble reaching a verdict and “honestly

Nos. 06-6266/6298/6564 United States v. Roach et al. Page 5

seem[ed] to be at an impasse.” After consulting with counsel for the parties, the court then gave the

jury an Allen charge, directing them to continue deliberating. An Allen charge is a “supplemental

instruction designed to encourage the jury to reach a verdict by requesting each juror to reconsider

his or her respective position during continued deliberations. The name comes from Allen v. United

States, 164 U.S. 492 (1896), where the Supreme Court approved such an instruction.” United States

v. Frost, 125 F.3d 346, 373 (6th Cir. 1997). The jury finally returned a verdict on April 12, 2006

at 10:35 a.m., finding Roach guilty of depriving Mejia of his civil rights under color of law (Count

II) and finding Sheldon guilty of being an accessory after the fact (Count III).

Roach and Sheldon filed a joint motion for a new trial, alleging prosecutorial misconduct and

prosecutorial vindictiveness. The district court denied the motion. Sentencing hearings were then

held on September 11, 2006. Roach received a sentence of 10 months of imprisonment, followed

by one year of supervised release that included a requirement that he perform at least 100 hours of

community service. Sheldon received a sentence of two years’ probation with a special condition

that he serve two months of that time in intermittent custody. Both defendants filed timely notices

of appeal.

II. ANALYSIS

A. Prosecutorial misconduct

Roach and Sheldon raise several claims of prosecutorial misconduct that allegedly require

that their convictions be vacated. In his brief, Sheldon adopted the statement of issues presented by

Roach “in that they are equally applicable to . . . Sheldon,” and instead briefed separate arguments

that applied only to Sheldon. Roach contends, for his part, that he was denied a fair trial because

(1) the government’s rebuttal closing argument improperly argued facts not in evidence and

appealed to ethnic and religious prejudices, and (2) federal investigators interviewed the translator

working with the defense counsel’s investigator prior to trial and improperly asked the translator

about the defense’s trial strategy.

We evaluate claims of prosecutorial misconduct using a two-step inquiry. “First, the court

must determine if the government’s statements were improper.” United States v. Abboud, 438 F.3d

554, 584 (6th Cir. 2006). If we determine that the statements were in fact improper, then we “must

decide whether the statements were flagrant.” Id. The “flagrancy inquiry” involves four factors:

(1) whether the remarks tended to mislead the jury or to prejudice the

accused [including whether the trial judge gave an appropriate

cautionary instruction to the jury];

(2) whether they were isolated or extensive;

(3) whether they were deliberately or accidentally placed before the jury;

and

(4) the strength of the evidence against the accused.

Id. (citation omitted).

If we determine that the statements were not flagrant, then “the [c]ourt will reverse only if

(1) the proof against the defendant was not overwhelming, (2) opposing counsel objected to the

conduct, and (3) the court failed to give a curative instruction.” Id. (citation and quotation marks

omitted). We review such claims de novo where defendants make a timely objection. United States

v. Beverly, 369 F.3d 516, 543 (6th Cir. 2004). Otherwise, we examine the defendants’ claims under

the plain-error standard of review. Id.

Nos. 06-6266/6298/6564 United States v. Roach et al. Page 6

1. Government’s rebuttal closing argument

Roach and Sheldon objected at trial to portions of the government’s closing argument.

Specifically, they objected to the following allegedly improper statements:

[I]t’s not disputed that when Agent King talked to Mr. Gomez and Mr. Mijia [sic],

he didn’t think to ask them about a cell phone, they didn’t think to tell him; but what

is telling is Mr. Gomez’s testimony. Who was the first person to ask you about the

cell phone and ask you, didn’t you have a cell phone? It was Mr. Hackett, the

investigator for Sergeant Roach; and that’s important for one reason, ladies and

gentlemen, there were four people on that Saturday afternoon that knew there was

a cell phone in that van, Wilder Gomez, Marcos Mijia [sic], Jimmy Roach and Pat

Sheldon. That’s how they knew to ask. Mr. King didn’t ask because he wasn’t there

at that van that afternoon, but the defense knew to ask about the cell phone because

they knew that cell phone was in the van.

...

Ms. Pierce [counsel for Roach] asked, Well, you don’t even know who Mr. Mijia

[sic] and Mr. Gomez are; and that’s what they want to make the case about. I think

back to the Commandment, thou shalt not steal. It does not say, thou shalt not steal

from people you know, thou shalt not steal from citizens, thou shalt not steal from

white people.

a. Cell phone comments

In response to the objection of Roach and Sheldon to the government’s cell-phone comments,

the court cautioned the jury as follows: “[Y]ou’ve heard the proof. It’s for you to decide the facts.

If the lawyers misstate the facts, that’s up to you to decide.”

The defendants assert on appeal that the government’s comments about the cell phone in

Gomez’s car improperly argued facts not in the record. But the primary focus of their argument is

that the government’s comments necessarily suggested to the jury that the only way that the defense

investigator would have known to question Gomez about the borrowed cell phone was if Roach and

Sheldon were the officers who made the stop and told the investigator about having seen the cell

phone. Furthermore, Roach and Sheldon contend that these comments were “tantamount to a false

claim that the defense team was accessories [sic] after the fact to the crime allegedly committed.”

They claim that the government’s argument, when considered in the context of both trials,

constitutes reversible error.

The government, on the other hand, contends that its reference to the cell phone was made

in response to Roach’s own closing argument, in which Roach’s counsel stated as follows:

When did they start talking about cell phones? What did they tell you? Only after

two months ago, after they testified, did it come up about cell phones. That’s

important. What they are wanting to do is fix the Gomez/Vasques [sic] problems,

and that is that they don’t even know when an alleged stop happened.

Sheldon’s counsel likewise referred to the cell phone in his closing argument, stating that “Agent

King had never heard of the cell phone being thrown or anything until recently.”

A review of the evidence offered at the second trial undercuts the defendants’ position.

Gomez testified that just prior to the traffic stop by Roach and Sheldon, he had received a phone call

on the borrowed cell phone. He also testified that a call came in as Roach and Sheldon approached

Nos. 06-6266/6298/6564 United States v. Roach et al. Page 7

his van during the stop. Although the cell phone was not in Gomez’s name, his coworker, Sandra

Boles, testified that she had loaned him an extra phone on her cell-phone account and that he paid

her for the calls that he made when she received her phone bill. Through the testimony of Boles and

of an employee for Boles’s cell-phone service provider, the government introduced phone records

for the cell phone to corroborate that it was in fact in use at times that were consistent with the

government’s time line of events for the traffic stop.

The district court considered Roach’s and Sheldon’s claims that the cell-phone comments

constituted reversible error in its denial of their motion for a new trial. Concluding that “[t]he

statements by the government attorney during the closing argument were not a misstatement of facts

in the record,” the court found that “[t]he evidence in the record was simply that the first disclosure

of the cell phone came because of a question asked by Hackett.” The court determined that the

government’s argument “was not a misstatement and was certainly a reasonable inference based on

the evidence in the record.” Moreover, the court found that the defendants had invited the

government’s argument by making “Gomez’[s] credibility concerning the cell phone an issue in the

case in the first place.” The court concluded that the comments, even if improper, were not “so

pronounced and persistent that [they] permeate[d] the entire atmosphere of the trial,” (quoting

United States v. Mahar, 801 F.2d 1477, 1503 (6th Cir. 1986)), but rather were confined to “a few

short sentences in a lengthy closing made after four days of trial.”

Viewed in context, the government’s comments about the cell phone constituted

approximately five sentences in its rebuttal closing argument. The defendants argue that the

statements nonetheless infected the jury’s deliberations and thus prevented Roach and Sheldon from

receiving a fair trial. To be sure, the government may not rely on prejudicial facts not in evidence

when making its closing arguments. United States v. Wiedyk, 71 F.3d 602, 610 (6th Cir. 1995). But

the evidence tends to support the government’s argument in the present case. Gomez testified that

the first person to ask him about a cell phone was “a man with a beard,” whom he later identified

as Brian Hackett, an investigator for the defense. As the district court noted, the record

demonstrates that the defendants “vigorously and continually attacked the credibility of the victims”

over the course of the entire trial. The government’s comments regarding the cell phone and the

credibility of Gomez and Mejia, even if not invited, drew a reasonable inference based on the

evidence given at the second trial. See United States v. Hickey, 917 F.2d 901, 904 (6th Cir. 1990)

(concluding that the prosecutor’s statement during summation that the defendant was actively

involved in drug-dealing was “a permissible argument based on the evidence”).

As Roach and Sheldon acknowledge, their defense theory was that they were not the ones

who made the traffic stop, if such a stop indeed occurred at all. The government’s comments

responded to that defense by suggesting that Roach and Sheldon must have made the stop in order

for Hackett, their defense investigator, to know to ask Gomez about whether he had a cell phone.

On appeal, the defendants contend that the district court’s conclusion that they had invited the

government’s comments essentially punished them for “[t]he presentation of a defense [that] was

nothing more than zealous representation of their clients.” This conclusory argument ignores the

district court’s reasoned response to the defendants’ motion for a new trial and its analysis of their

prosecutorial-misconduct claim.

Roach and Sheldon also raise on appeal what the district court characterized as “the

somewhat puzzling argument, without elaboration, that ‘[t]he government’s closing argument is a

step beyond making improper comments on a defendant’s decision to remain silent, conduct which

is prohibited by the Fifth Amendment.’” As the district court properly noted, “[t]he prosecution’s

statement[s] in this case cannot reasonably be interpreted to have even been an indirect reference

to the decision of these defendants to invoke their Fifth Amendment right to remain silent and refuse

to testify at trial.” We agree with the reasoning of the district court and accordingly adopt its

analysis of the defendants’ perfunctory Fifth Amendment argument.

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b. Religious and ethnic prejudice

Roach and Sheldon further objected to the government’s comments during its rebuttal

closing argument that the Ten Commandments do not say “thou shalt not steal from white people.”

This statement, although textually accurate, served, according to the defendants, to incite religious

and ethnic bias and thereby deprived them of a fair trial. Roach and Sheldon are both white,

whereas Gomez and Mejia are both Hispanic.

A review of the defendants’ closing arguments suggests, however, that the government was

responding to improper comments made by counsel for Roach. His counsel had argued that

[t]his is one mark in ten years that they’re saying on a sergeant; and the whole tale

doesn’t make any sense. We can’t furnish all the answers. We don’t know why the

Hispanics—they know how to work the system. They had things to hide. We don’t

know why this is set up like it is. It’s one of the great mysteries; but we know that

the government’s facts don’t work, you can tell from their evidence and their

witnesses.

Roach’s co-counsel then argued:

What did we learn about the individuals Marcos Mijia [sic] Vasques, Wilder Gomez

Roblero? Who are these individuals? That’s one question, one of many questions

. . . . Who are you? That was a question that was asked by Mr. Smith. Did you hear

Mr. Gomez? At first he — there was a big long pause, and he did not want to say

who he was. He was also asked his date of birth, and he kept asking, well, which

one. He was asked where did he live in New Jersey. I don’t remember. For an

individual who has come to this country to make a better life, he cannot remember

the first place he came to live, this great wonderful country that we live in. Why did

he not want to the government to know, us to know, you to know where he lived in

New Jersey? Is there more bad things [sic] that he’s done out there?

We conclude that the government’s statements did not amount to misconduct. The

statements were made in response to Roach’s closing arguments, which contained inflammatory

remarks about Hispanics. Indeed, the district court said in a footnote that defense counsel’s

statements about Hispanics knowing how to work the system constituted “race-baiting” and were

part of a pattern of tactics and statements that the defense had used even more aggressively in the

first trial.

To be sure, “[c]ourts universally condemn” the injection of religion into legal proceedings

and we do not vary from that condemnation here. Hicks v. Collins, 384 F.3d 204, 223 (6th Cir.

2004). But the government’s comment was isolated and there is no indication that it misled the jury.

The government did not suggest that the jury should decide the case based on theological principles

nor make any other reference to religion. Rather, after the defense’s objection to the reference to

the Ten Commandments, the government continued its closing argument by stating that “[t]he law

does not make differences based on who the victim is. Our constitutional rights do not depend on

who the victim is. Those rights apply to everyone in the United States.”

As the defense points out, there was no contemporaneous cautionary instruction to the jury

by the district court. But the defense did not request one either. After the court overruled the

defense’s objection, there were no further Biblical references during the trial.

In sum, the government’s comment, although improper, was not flagrant. Moreover, the

comment did not appeal to religious or ethnic prejudice, but was made in response to the

Nos. 06-6266/6298/6564 United States v. Roach et al. Page 9

inappropriate comments about Mejia and Gomez by the defense. We therefore find no reversible

error regarding this issue.

2. Federal investigation of defense translator

Prior to the first trial, Roach and Sheldon filed a motion to dismiss the indictment on the

basis that FBI agents had improperly questioned a defense interpreter, Pete Galvez, who worked

with the defense investigator, Brian Hackett. Roach and Sheldon contend that the agents questioned

Galvez at his home about the defense’s legal strategy and inquired into privileged communications.

The government responded that it had received a report that Galvez had intimidated Gomez’s wife,

a witness in the case, in violation of 18 U.S.C. § 1512(b) and (d), and that it accordingly had

requested the FBI to inquire into the matter.

A magistrate judge held an evidentiary hearing on the motion to dismiss and heard testimony

from Galvez and from the FBI agents who questioned him. In a Report and Recommendation, the

magistrate judge found no merit to the defendants’ claim and recommended denying their motion.

The district court adopted the recommendation over the defendants’ objection, finding that the FBI

agents properly investigated an alleged threat made to a potential witness, that the defense implicitly

waived work-product immunity by calling Galvez to testify about the FBI interview at the

evidentiary hearing, and that Galvez had been expressly directed by defense counsel not to go to the

Gomez home by himself, but did so nonetheless.

On appeal, Roach focuses on whether defense investigator Hackett was improperly accused

of misconduct. The reason for this is not entirely clear. According to the record, Hackett and

Galvez jointly visited the Gomez’s home on November 11 and spoke with Mrs. Gomez. There was

some dispute, however, about whether Hackett was with Galvez when Galvez returned and allegedly

intimidated Mrs. Gomez. Roach and Sheldon contend that the incident of alleged intimidation refers

to a visit by both Hackett and Galvez. The magistrate judge, however, found that “[a]lthough the

proof is very confusing regarding this fact, it appears that six days [after the joint visit to Gomez’s

home], Galvez returned alone to Mrs. Gomez’s house and attempted to talk to her.”

Neither Roach nor Sheldon offer any evidence or caselaw that would support their position

that the FBI’s investigation into whether Galvez allegedly told Mrs. Gomez that he would call the

police if she did not open the door to let him in constituted the “functional equivalent of wiretapping

and eavesdropping” that prevented the defendants from receiving a fair trial. We likewise find no

support for the defendants’ argument, and therefore adopt the findings of the magistrate judge and

the ruling of the district court denying Roach’s and Sheldon’s joint motion to dismiss the indictment

on this ground.

B. Alleged intimidation of a defense witness

Roach and Sheldon next allege that the district court erred in denying their motion to dismiss

the superseding indictment on the ground that the government improperly sought to intimidate a key

defense witness. A defendant’s right to present his or her own defense witnesses constitutes “a

fundamental element of due process.” Washington v. Texas, 388 U.S. 14, 19 (1967). The right

encompasses the Sixth Amendment “right to have compulsory process for obtaining witnesses in

[the defendant’s] favor.” Id. at 19-23. Prosecutorial and judicial actions aimed at discouraging

defense witnesses from testifying may deprive a defendant of this right. See, e.g., Webb v. Texas,

409 U.S. 95, 98 (1972) (per curiam) (reversing a conviction where the trial judge severely

admonished the sole witness proffered by the defense, who declined to testify as a result); United

States v. Thomas, 488 F.2d 334, 336 (6th Cir. 1973) (per curiam) (reversing a conviction obtained

after a Secret Service agent in an ex parte communication advised a defense witness of possible

prosecution if he testified).

Nos. 06-6266/6298/6564 United States v. Roach et al. Page 10

Governmental conduct, however, must amount to a substantial interference with a witness’s

free and unhampered determination to testify before we will find a violation of either due process

or the Sixth Amendment. United States v. Pierce, 62 F.3d 818, 833 (6th Cir. 1995) (citation omitted)

(holding that the government’s inappropriate interrogation of a defense witness did not

“substantially interfere[] with any free and unhampered determination the witness might have had

as to whether to testify”). Even when such interference occurs, a violation of a defendant’s right to

call witnesses in his or her defense is subject to harmless-error analysis. United States v. Foster, 128

F.3d 949, 953 & n.4 (6th Cir. 1997) (analyzing the standard of review applicable to claims of

prosecutorial misconduct based on the alleged intimidation of a defense witness).

In the present case, the defendants argue that the government sought to “chill the presence”

of defense witness Charles “Mo” Swanson. This witness allegedly would have testified that Roach

and Sheldon were at the By-Lo Grocery, where Swanson was employed, at the time that the traffic

stop allegedly occurred. During the first trial, Swanson, who had a prior felony conviction, received

a letter from the Tennessee Department of Safety, notifying him that his permit to carry a handgun

had been revoked. The letter was carbon-copied to Assistant United States Attorney Neil Smith and

to FBI Agent Tom Farrow, who were both on the prosecution team against Roach and Sheldon.

According to the government, the defense had informed the district court during the course

of the first trial that it did not intend to call Swanson. The defense raised allegations of witness

intimidation for the first time in a motion in limine to dismiss the superseding indictment before the

second trial. In response, the government contends that, while investigating the present case, it

learned of Swanson’s prior federal felony conviction in South Carolina and that he had been issued

a license to carry a handgun by the Tennessee Department of Safety. The government notified the

Department of Safety by a letter dated January 18, 2006 that Swanson was prohibited under federal

law from possessing a handgun. Swanson’s permit was revoked the following week.

At a pretrial hearing, the district court heard evidence and argument relating to the

defendants’ motion to dismiss based on the alleged intimidation of Swanson. The government

pointed out that it had not requested the Tennessee Department of Safety to take any action in

response to its letter, but rather that it believed that it “had a legal obligation to bring to the attention

of the Department of Safety that they had issued a handgun permit in error.” When asked by the

court why the government could not have waited two weeks until the conclusion of the first trial to

communicate with the Department of Safety, the government stated that “every day [Swanson’s

permit] stood out there uncorrected was another day that that permit had been improperly issued.”

The court then noted that “the timing of all of this, the letter to the Department of Safety, the

Department of Safety’s letter to Mr. Swanson, all the timing of all of that is problematic.”

Moreover, the court stated that it was

confronted with a situation where there’s a witness who obviously is very material

to these defendants’ defenses. This witness puts them somewhere else at the time

this alleged offense was occurring or very close to it. A witness who now apparently

for whatever reason has come to the conclusion that he’s afraid that if he comes into

this Court and testifies favorably for these defendants, he may be charged with being

a felon in possession of a firearm.

Accordingly, the district court “prohibit[ed] the government from cross-examining Mr.

Swanson on any matters related to the alleged possession by him of a firearm while his status was

that of a convicted felon.” The court also informed the parties that it would wait for the

government’s decision on whether or not to prosecute Swanson for being a felon in possession of

a firearm before making any further decisions on this issue.

Nos. 06-6266/6298/6564 United States v. Roach et al. Page 11

Despite noting that a defendant has a Sixth Amendment right to present his or her own

witnesses, Washington, 388 U.S. at 19, the district court issued a written ruling denying the

defendants’ motion in limine to dismiss on the basis of witness intimidation. Citing Webb, 409 U.S.

at 98, the court nonetheless recognized the proposition that “prosecutorial actions aimed at

discouraging defense witnesses from testifying may deprive a defendant” of his Sixth Amendment

right. One possible remedy for such discouragement would be for the court to grant immunity from

prosecution to the witness for the alleged crime uncovered by the prosecutorial actions. United

States v. Emuegbunam, 268 F.3d 377, 401 (6th Cir. 2001). The court stated that it “ha[d] advised

the government that [it] will address this remedy if the government decides that there will be no

agreement to not prosecute Swanson.”

Although the timing of the government’s letter to the Tennessee Department of Safety is

highly troubling and AUSA Smith’s justification of that timing based on his practice of “tak[ing]

care of things as they come across my desk” is questionable, this sequence of events does not

establish that Swanson’s failure to testify was due to the government’s alleged misconduct. Cf.

United States v. Foster, 128 F.3d 949, 954 (6th Cir. 1997) (finding that the district court should have

conducted an evidentiary hearing to determine the effect of the government’s misconduct on a

defense witness’s testimony). The district court in the present case in fact held an evidentiary

hearing and inquired extensively into the government’s actions and their effect on the witness.

Moreover, the court prohibited the government from cross-examining Swanson about his allegedly

illegal possession of a gun and indicated that it would be willing to grant Swanson immunity from

prosecution on that charge if the government did not waive its discretion to bring charges.

Determining the effect that the government’s alleged misconduct had on Swanson was

difficult even for the district court, which had the advantage of both physical and temporal proximity

to the events. Swanson himself did not appear at the evidentiary hearing, but rather submitted a

conclusory affidavit attesting to his fear of negative repercussions should he testify. The court noted

that it had authorized a subpoena for Swanson’s appearance, but counsel for Roach stated that he

had consulted with Swanson’s attorney and elected not to serve the subpoena.

There is no allegation that the government threatened to prosecute Swanson for illegally

possessing a handgun, although Swanson allegedly felt threatened. The government in fact notified

Swanson that it would not prosecute him for any possession of a firearm prior to the date that the

Tennessee Department of Safety revoked his handgun permit. Moreover, the court held an extensive

hearing immediately prior to opening statements in the second trial and heard arguments from

counsel for the defendants, counsel for Swanson, and the government. The defense nonetheless

chose not to call Swanson as a witness. Under these circumstances, we conclude that the district

court did not err in denying the defendants’ motion in limine to dismiss the indictment on the ground

of witness intimidation.

C. Allen charge

Roach and Sheldon also contend that the district court erred when it gave the jury an Allen

charge after the jury stated that it was having difficulty reaching a verdict. We review a district

court’s decision to give an Allen charge under the abuse-of-discretion standard. United States v.

Cochran, 939 F.2d 337, 340 (6th Cir. 1991). The timing of the charge is reviewed under the same

standard. United States v. Tines, 70 F.3d 891, 896 (6th Cir. 1995). We generally prefer the usage

of the Sixth Circuit pattern jury instruction and “its use will, in most instances, insulate a resulting

verdict” from challenge on appeal. United States v. Clinton, 338 F.3d 483, 488 (6th Cir. 2003).

In the present case, the jury began deliberating at 2:45 p.m. on April 10, 2006. It sent a

message to the district court at 5:45 p.m., asking: “What if we are unable to reach a verdict? We

don’t believe we will be able to reach a verdict tomorrow, either. What should we do? Too much

Nos. 06-6266/6298/6564 United States v. Roach et al. Page 12

of the evidence is subjective, & minds are fairly well settled.” The court declined to instruct the jury

further at that time, but asked that the jurors return the following morning to resume deliberations.

On April 11, 2006, the jury deliberated from 9:00 a.m. until 12:00 p.m., and from 1:15 p.m. until

2:30 p.m. At that time, the jury sent a second message to the court, stating that it had reached a

decision on three of the questions put to it, but was undecided as to the remaining two. The message

further reported that “[w]e have examined the evidence extensively & honestly seem to be at an

impasse. What should be done?” In response, the court gave the jury the Sixth Circuit pattern Allen

charge over the defendants’ objections.

The jury adjourned at 5:30 p.m. and returned at 9:00 a.m. on April 12, 2006. At 10:35 a.m.,

the jury returned a verdict. Caselaw from this circuit supports the giving of the Allen charge “as

soon as the jury announce[s] its deadlock.” Tines, 70 F.3d at 896; see also United States v. Sawyers,

902 F.2d 1217, 1220 (6th Cir. 1990) (holding that the district court was within its discretion to give

the Allen charge when the jury announced a deadlock after deliberating for three hours). This court

has in fact “determined that the possibility of coercion is reduced if the charge is given early rather

than after days of deadlocked deliberations.” Tines, 70 F.3d at 896. We therefore conclude that the

district court did not err in giving the Allen charge.

D. Evidentiary objection and judicial bias

Roach and Sheldon next assert that the district court erred in limiting Roach’s

cross-examination of Michael Gray, one of the government’s witnesses, and that the district court

improperly asked questions of two government witnesses—Chief of Police Maurice Shults and

Newport Police Lieutenant Ronnie Landers. These are two different, though related, claims. The

first challenges an evidentiary ruling and the second alleges judicial bias against the defendants.

1. Evidentiary objection

The defendants contend that the district court erred when it limited the range of their

cross-examination of Michael Gray, a key prosecution witness. Gray testified that he had been on

duty as an emergency medical technician at the time of the alleged traffic stop. Specifically, he had

been outside his employer’s building, washing his personal vehicle, when he observed the traffic

stop occur directly across the street. During cross-examination, counsel for Roach elicited testimony

that Roach worked part-time for a rival ambulance service and that the ambulance company for

which Gray worked had in fact sued Roach’s employer. Gray testified that he was aware of the

lawsuit but did not know when the complaint was filed. Roach’s counsel then attempted to

introduce a copy of the civil complaint in that lawsuit to show when it was filed. The court

sustained the government’s objection that the document was irrelevant.

On appeal, the defendants argue that the copy of the complaint in the lawsuit between the

two ambulance services clearly showed that Gray was biased against the defendants and had a

reason to lie about seeing them conduct the alleged traffic stop. The government characterizes this

as a strained argument. We agree.

A district court’s ruling on the admissibility of evidence is reviewed under the

abuse-of-discretion standard. United States v. Mack, 258 F.3d 548, 553 n.1 (6th Cir. 2001). The

record in the present case reflects that the court gave careful consideration to the excluded evidence,

questioned defense counsel about its relevance, and ruled that, in light of Gray’s testimony that he

did not know when the lawsuit was filed, the actual date of filing stamped on the complaint

involving the two ambulance services was irrelevant. On such a record, we conclude that the district

court did not abuse its discretion in excluding the document.

Nos. 06-6266/6298/6564 United States v. Roach et al. Page 13

2. Judicial bias

Roach and Sheldon further assert that the district court “improperly joined the adversarial

proceeding” when it questioned government witnesses regarding matters relating to the defense’s

theory that the alleged traffic stop never occurred or that, if it did, Roach and Sheldon were not

involved. They contend that the district court’s questions suggested to the jury that the court did not

believe the defense’s argument that a different officer, John Jones, was the one who conducted the

alleged traffic stop. These questions, according to the defendants, “deprived the proceedings of the

appearance of impartiality and thereby destroyed the defendants’ chance for a fair trial.” United

States v. Owens, 159 F.3d 221, 227 (6th Cir. 1998).

When a defendant timely objects to the district court’s allegedly biased conduct, we apply

the harmless-error standard of review. Id. at 227. The plain-error standard of review applies,

however, to claims of judicial bias that were not properly preserved by objections in the lower court.

Id. In the present case, the defendants preserved their claim regarding the district court’s

questioning of Chief Shults by objecting to the questioning in a sidebar conference during the next

recess in the trial. Their claim of bias arising from the district court’s questioning of Lieutenant

Landers, however, was not preserved because the defendants failed to object either

contemporaneously or at the next available opportunity when the jury was not present. See Fed. R.

Evid. 614(c) (“Objections to the calling of witnesses by the court or to interrogation by it may be

made at the time or at the next available opportunity when the jury is not present.”).

a. Chief Shults

Sheldon’s counsel cross-examined Chief Shults about the police department’s shift-log for

the day of the alleged stop. After the parties had finished questioning Shults, the district court asked

several additional questions relating to the shift-log and what information it gave about the work

assignment of Jones on that day. The questions established that Jones had been working from 1:00

p.m. until 9:00 p.m. and had been assigned, without a partner, to a patrol car with a light-bar on its

roof, not to a slick-top car. When the court concluded, counsel for both defendants then asked

additional questions about police practices for reporting a traffic stop or for permitting law

enforcement officers from other departments to ride in police cars with on-duty police officers.

Neither defendant objected contemporaneously to the court’s questioning of Shults. At the next

recess in the proceedings, however, counsel for Roach raised an objection to the court’s questioning.

The following exchange occurred:

MS. PIERCE: Although we did not contemporaneously object to the

questioning of Officer Shults by the court, I feel like we need

to preserve the record that, you know, perhaps that may have

put, you know, some weight on that, you know; and,

obviously, I preserve it solely for the record.

THE COURT: So that the record will reflect it totally, the reason I asked the

question is Mr. Hill through his questioning suggested to this

court and to this jury that another officer was in fact

responsible for these crimes. If that’s true, if Mr. Hill has any

basis for that, he needs to give that information to the FBI.

MS. PIERCE: Very well. Thank you, Your Honor.

THE COURT: And it was left unclear.

We conclude that the district court did not abuse its discretion in questioning Chief Shults.

The court asked less than ten questions relating to the hours that Jones worked on the day of the

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incident, what car he drove, whether he was assigned to the car alone or with a partner, and whether

the car had a light-bar on its roof or was a slick-top. A judge trying a criminal case is responsible

for ensuring “that the issues are not obscured and that the testimony is not misunderstood.” United

States v. Hickman, 592 F.2d 931, 936 (6th Cir. 1979) (reversing a conviction where the trial court’s

questions displayed bias against the defendant that violated the latter’s right to a fair trial). The

court may “interject itself into the proceedings when ‘necessary to clear up confusion in the

evidence or to supplement, in an impartial fashion, the presentation of a poorly prepared attorney.’”

McMillan v. Castro, 405 F.3d 405, 410 (6th Cir. 2005).

When evaluating a claim of judicial bias, we examine three factors. Hickman, 592 F.2d at

933. The first factor looks at “the nature of the issues at trial,” including the length or complexity

of the proceedings, and asks whether the judge’s intervention was needed “to clarify what is going

on.” Id. Second, we examine the conduct of counsel for lack of preparation or obstreperousness,

and whether “the facts are becoming muddled,” because in such cases the court “performs an

important duty by interposing clarificatory comments or questions.” Id. The third factor evaluates

the conduct of the witnesses, recognizing that their “inadvertent” confusion may be resolved by

judicial intervention. Id. In the present case, none of these factors support the defendants’ argument

that the district court’s conduct “rendered a fair verdict impossible.” Id. at 932.

The district court’s questions were brief and direct. They revealed no bias for or against

either party. The court expressed no opinion about the witness’s responses. To be sure, the district

court’s explanation of why it asked the questions is puzzling. Its report-to-the-FBI rationale,

however, is insufficient to constitute a violation of the defendants’ right to a fair trial. The record

in the present case reveals that counsel for Sheldon asked Chief Shults several questions designed

to elicit information that Jones was on duty at the time of the alleged incident and in fact conducted

a traffic stop near the fire station, a building that resembles the Allied EMS station house, at

approximately the time of the incident at issue. But the record also indicates that Chief Shults gave

conflicting answers to counsel’s questions about the colors and markings of the cars used by the

Newport Police Department and the Cocke County Sheriff’s Department. The court, therefore, was

reasonably concerned that the jury would be confused. Under these circumstances, we conclude that

the court acted appropriately in questioning the witness to clarify a portion of his testimony.

b. Lieutenant Landers

Roach and Sheldon also allege that the district court erred in questioning Lieutenant Landers

at trial. But they fail to develop any arguments in support of this claim in their brief, so we deem

the issue to be waived. See United States v. Layne, 192 F.3d 556, 566 (6th Cir. 1999) (“[I]ssues

adverted to in a perfunctory manner, unaccompanied by some effort at developed argumentation,

are deemed waived.”). Moreover, even if the defendants had properly preserved the issue, their

claim lacks merit. The trial court asked two questions of Landers during the cross-examination by

Roach’s counsel. These questions were clearly designed to clarify Landers’s vague and equivocal

response to questions about the make and model of police patrol cars and how many had light-bars

on their roofs. Such questioning by the court fulfilled the court’s role of clarifying testimony and

addressing the apparent confusion of the witness. See United States v. Seago, 930 F.2d 482, 492

(6th Cir. 1991) (holding that a comment made by the district court that it agreed with the reasoning

of the government’s objection to a question by the defense in cross-examination served to “properly

clarif[y] the legal context in which the witness’[s] testimony should be considered” and was not

biased).

E. Cumulative error

Roach and Sheldon next contend that the cumulative effect of all of the alleged errors that

they raise on appeal deprived them, jointly and severally, of their right to a fair trial. This claim

Nos. 06-6266/6298/6564 United States v. Roach et al. Page 15

appears in Roach’s brief in a two-sentence paragraph that is a near-paradigmatic example of

perfunctory argument. For this reason, we deem the claim to be waived. Layne, 192 F.3d at 566.

In any event, the claim would fail even if it had been more fully developed. Roach and Sheldon

have been unable to demonstrate that the district court committed any error in the trial, much less

that the cumulative effect of any such errors rendered the trial “fundamentally unfair.” See United

States v. Blackwell, 459 F.3d 739, 770 (6th Cir. 2006) (holding that the “cumulative prejudice of trial

errors did not render Defendant’s trial fundamentally unfair”). We therefore conclude that the

district court did not commit errors that cumulatively resulted in a denial of the defendants’ right to

a fair trial.

F. Denial of Sheldon’s motion to dismiss the superseding indictment

Sheldon separately argues that the district court erred in denying his motion to dismiss the

superseding indictment, which contained the additional charge against him of being an accessory

after the fact. This added charge was the result, according to Sheldon, of prosecutorial

vindictiveness by an Assistant United States Attorney who “let his own agenda trump that of

‘justice.’” In the original indictment, Sheldon was charged with depriving Gomez and Mejia of their

civil rights under color of law and with conspiring to do so. The superseding indictment omitted the

conspiracy charge but added a count charging Sheldon alone with being an accessory after the fact.

Due process “prohibits an individual from being punished for exercising a protected statutory

or constitutional right.” United States v. Poole, 407 F.3d 767, 774 (6th Cir. 2005) (citing United

States v. Goodwin, 457 U.S. 368, 372 (1982)). But “the Due Process Clause is not offended by all

possibilities of increased punishment . . . , [] only by those that pose a realistic likelihood of

vindictiveness.” Blackledge v. Perry, 417 U.S. 21, 27 (1974) (quotation marks omitted). A

defendant alleging prosecutorial vindictiveness must show either “actual vindictiveness” or a

“realistic likelihood of vindictiveness.” United States v. Dupree, 323 F.3d 480, 489 (6th Cir. 2003).

Actual vindictiveness is demonstrated by “objective evidence that a prosecutor acted in order to

punish the defendant for standing on his legal rights.” Id. The realistic-likelihood-of-vindictiveness

standard examines the prosecutor’s “stake in deterring the exercise of a protected right and the

unreasonableness of his actions.” Poole, 407 F.3d at 774 (quotation marks omitted).

This court’s decision in Poole addresses a situation very similar to the one before us. Poole

was indicted on one count of being a felon in possession of a firearm. The district court declared

a mistrial because the jury could not reach a unanimous verdict. Id. at 769. Thereafter, the

government requested the grand jury to return a superseding indictment that charged Poole with

being a felon in possession of a firearm, with possession of a firearm during the commission of a

drug crime, and with possession of crack cocaine with the intent to distribute. The grand jury did

so. Poole then proceeded to a second trial, where he was found guilty of all three offenses. Id.

On appeal, Poole argued that the district court erred in denying his motion to dismiss the

superseding indictment, which he alleged was the result of vindictive prosecution. This court noted

that the Supreme Court had not yet addressed a prosecutorial-vindictiveness claim “aris[ing] out of

a superseding indictment sought after an initial mistrial.” Id. at 774. The court then considered

other, related Supreme Court decisions for guidance in analyzing whether there was a realistic

likelihood of vindictiveness. Id. at 775.

First, the Poole court noted that “while the timing [of the superseding indictment] certainly

does not compel the conclusion that a change in the indictment was a product of vindictiveness, it

does make the possibility more likely than would a change at a pretrial stage.” Id. at 776. The court

also noted that the prosecution’s “stake” increases when it is forced to “do over what it thought it

had already done correctly.” Id. (quoting Goodwin, 457 U.S. at 383). But the court found

persuasive the fact that the government had not objected to the mistrial. Id. at 377. “Thus, it seems

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not only that the prosecution welcomed the new trial, it also realized that there was a better way to

conduct it.” Id. Accordingly, “the government’s response to the mistrial—seeking a superseding

indictment—was reasonable under the circumstances presented here.” Id. The court then concluded

that even if Poole had raised a presumption of vindictive prosecution, the government had rebutted

any such presumption because “there exist[ed] objective information in the record to justify the

increased sentence or additional charges.” Id.

In the present case, the superseding indictment added a lesser charge against Sheldon for

being an accessory after the fact. Sheldon contends that the government failed to show that the

additional charge was based on new evidence or that the charge could not have been brought earlier.

See United States v. Suarez, 263 F.3d 468, 480 (6th Cir. 2001) (“Generally, a potentially vindictive

superseding indictment must add additional charges or substitute more severe charges based on the

same conduct charged less heavily in the first indictment. . . . If the prosecution can show that the

additional charges were not brought earlier because they were based on new evidence, it will

successfully rebut a showing of vindictiveness.” (citations omitted)).

Sheldon asserts that because the superseding indictment added a new charge and the

government failed to assert that there was any new evidence supporting that charge, the superseding

indictment was the result of vindictive prosecution. He contends that the additional charge was

added because he had refused to cooperate with the prosecution and to testify against Roach.

Sheldon further argues that the government’s actions were “reprehensible, unrelenting and justice

demands that the verdict rendered be reversed and the remaining charge dismissed.” The district

court considered virtually identical arguments when it denied the defendants’ joint motion to

dismiss. Its analysis of Sheldon’s claim provides in relevant part as follows:

Based upon the testimony at trial that there was a “good cop” identified as Sheldon

and a “bad cop,” and based upon the defendants’ acquittal on the conspiracy count,

it is reasonable to conclude that the jury may have believed that Sheldon was not

involved in the actual commission of the crimes alleged in the indictment. However,

there was objective evidence that Sheldon’s statement after the crimes were

committed was consistent with that of Roach and that he was an accessory after the

fact attempting to prevent Roach’s apprehension and conviction.

Sheldon argues on appeal that the government informed him during the initial investigation

that he could be charged with being an accessory after the fact. According to Sheldon, this indicates

that the government already had evidence that it thought would support such a charge and thus made

a decision not to seek an indictment for that offense in the initial indictment. Sheldon implies,

however, that the government sought the accessory charge after the mistrial to punish Sheldon for

exercising his constitutional right to a trial. The government responds that the decision to seek the

superseding indictment was, as in Poole, based on “a reasoned re-evaluation of the evidence and the

existing charges.”

To be sure, the government’s assertion that it sought a superseding indictment based on a

“reasoned re-evaluation of the evidence” after the district court declared a mistrial is rather

conclusory. But this lack of elaboration does not by itself establish that the superseding indictment

was motivated by prosecutorial vindictiveness. The new charge, for one thing, was a less severe

charge than those contained in the original indictment and, for another, was approved by a grand

jury and therefore “presumed to have rested on probable cause.” Suarez, 263 F.3d at 481. Sheldon

does not allege that the “grand jury was manipulated or otherwise prejudiced against him.” Id.

Finally, as the district court noted, there was objective evidence in the record that supported

the new charge. Sheldon had given a statement to the TBI agent investigating the alleged traffic stop

in which he denied making the stop in question or stopping any Hispanic individuals on the day of

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the incident. When subsequently offered the opportunity to alter or amend that statement, he

declined to do so. Accordingly, we conclude that the district court did not err in denying Sheldon’s

motion to dismiss the superseding indictment.

G. Motion for a new trial

Sheldon also argues that the district court erred when it denied the defendants’ joint motion

for a new trial. Specifically, Sheldon disagrees with the district court’s conclusion that the

defendants had “invited” the government’s comments about the cell phone and the Ten

Commandments.

“The decision to grant or deny a motion for a new trial is entirely within the discretion of the

district court, and we will not reverse absent a showing of an abuse of discretion.” United States v.

Anderson, 76 F.3d 685, 692 (6th Cir. 1996). Sheldon contends that the district court improperly

considered the arguments of counsel for Roach in denying the motion for a new trial as to Sheldon.

To be sure, the court quoted from the closing argument by counsel for Roach, providing no

corresponding citation to argument by counsel for Sheldon. But our review of the record reveals

that Sheldon’s counsel did in fact refer to the cell phone during his closing arguments. In an attempt

to raise doubt about the veracity of Gomez’s and Mejia’s testimony relating to the cell phone,

Sheldon’s counsel stated in pertinent part as follows:

Agent King had never heard of the cell phone being thrown or anything until

recently. . . . And one of the important things that you need to think about when you

consider this cell phone, and it’s the reason I brought it up, Sandra Bowles [sic], who

is a friend of Mr. Mijia’s [sic], told you that Mr. Mijia told her that he had called his

wife on the cell phone right after it happened. Check the records, it’s not there. It’s

not there.

These comments may not have been as direct an invitation as those made by counsel for Roach, but

they support the district court’s denial of the motion for a new trial.

As to the government’s reference to the Ten Commandments, we note that Sheldon’s counsel

did not contemporaneously object. Moreover, for the reasons previously discussed in Part II.A.1.b.

above, the government’s comments, although improper, were not flagrant and did not appeal to

religious or ethnic prejudice. We therefore conclude that the district court did not err in denying the

motion for a new trial as to Sheldon.

H. Sufficiency of the evidence

Finally, both Roach and Sheldon assert that the government failed to produce sufficient

evidence to support their convictions. As with their claim regarding cumulative error, the

defendants present a perfunctory and conclusory treatment of this claim. Roach justifies this

deficiency because of “the word limit on appellate briefs which limits a full development of the issue

in favor of issues on appeal also deserving of relief.” But neither Roach nor Sheldon sought leave

to exceed the word limit. Their lack of argumentation alone condemns their sufficiency-of-the-

evidence claim. See United States v. Layne, 192 F.3d 556, 566 (6th Cir. 1999).

Even assuming that the claim was properly presented, moreover, the defendants cannot carry

their “heavy burden.” See United States v. Jefferson, 149 F.3d 444, 445 (6th Cir. 1995). The

standard of review for Roach’s and Sheldon’s challenge to the sufficiency of the evidence against

them is “whether, after viewing the evidence in the light most favorable to the prosecution, any

rational trier of fact could have found the essential elements of the crime beyond a reasonable

doubt.” United States v. Davis, 473 F.3d 680, 681 (6th Cir. 2007) (quoting Jackson v. Virginia, 443

U.S. 307, 319 (1979) (emphasis in original)).

Nos. 06-6266/6298/6564 United States v. Roach et al. Page 18

Gomez and Mejia each testified that the minivan in which they were traveling was stopped

by Roach and Sheldon, and that Roach took money from Mejia’s wallet. Gray corroborated their

testimony about the stop. Video surveillance photos taken at Wal-Mart contradicted the defendants’

alibis. Testimony from Lieutenant Landers and from TBI Agent King established that Sheldon

denied that the stop occurred, and that he repeated his statement when subsequently presented with

the opportunity to add to or amend it. All told, this evidence is sufficient to support the jury’s

verdict.

III. CONCLUSION

For all of the reasons set forth above, we AFFIRM the judgment of the district court on all

grounds. We also AFFIRM the denial of Roach’s bond pending appeal because he failed to raise

a substantial question of fact or law that would overcome the presumption against release on bond

after conviction. See United States v. Chilingirian, 280 F.3d 704, 709 (6th Cir. 2002).