United States v. Stapleton

NOT RECOMMENDED FOR FULL-TEXT PUBLICATION

File Name: 08a0617n.06

Filed: October 15, 2008

No. 07-5775

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

United States of America, )

)

Plaintiff-Appellee ) ON APPEAL FROM THE

) UNITED STATES DISTRICT

v. ) COURT FOR THE EASTERN

) DISTRICT OF KENTUCKY

Alice Marie Stapleton, )

)

Defendant-Appellant. )

BEFORE: MOORE and COLE, Circuit Judges, and GRAHAM,* District

Judge.

GRAHAM, District Judge. Defendant-Appellant Alice Marie

Stapleton (“the defendant”) appeals the judgment of conviction

entered in the United States District Court for the Eastern

District of Kentucky. Defendant was charged by a second

superseding indictment filed on December 21, 2006, with: conspiracy

under 18 U.S.C. § 371 to provide an inmate at a federal prison with

prohibited objects and to obtain prohibited objects inside the

prison, namely heroin, marijuana and cell phones, in violation of

18 U.S.C. §§ 1791(a)(1) and (2) (Count 1); conspiracy under 21

U.S.C. § 846 to distribute heroin (Counts 2, 3 and 4) and marijuana

(Count 6) in violation of 21 U.S.C. § 841(a)(1); possession with

the intent to distribute heroin (Count 5) and marijuana (Count 7)

in violation of § 841(a)(1); and attempting to provide an inmate at

a federal penitentiary with prohibited objects (heroin, marijuana,

and two cellular telephones) in violation of 18 U.S.C. §1791(a)(2)

*

The Honorable James L. Graham, United States District Judge for the

Southern District of Ohio, sitting by designation.

(Count 8).

Personne McGhee, Clady McGhee, Grady Perry, Kenneth Ray Bates,

Maria Mims, and Temeka Halliburton were also named as defendants.

The McGhees, Perry, and Halliburton entered guilty pleas. The case

against Bates was dismissed on the government’s motion. The case

against defendant and Mims proceeded to trial before a jury on

February 20, 2007. At the end of the government’s case and at the

conclusion of the evidence, the district court denied defendant’s

motions for judgment of acquittal pursuant to Fed.R.Crim.P. 29.

On February 23, 2007, the jury returned a verdict of guilty on

all counts. Defendant filed a motion for a new trial pursuant to

Fed.R.Crim.P. 33 on March 1, 2007. The district court denied the

motion by order filed on June 7, 2008. On June 8, 2007, the

district court imposed a sentence of sixty months imprisonment on

Counts 1 through 7, to run concurrently, and eighteen months on

Count 8 to run consecutively. On June 15, 2007, defendant filed a

timely notice of appeal.

On appeal, defendant asserts the following claims of error:

(1) the district court erred in permitting the government to

question three coconspirator witnesses concerning their guilty

pleas and in denying her motion for a mistrial prompted by a

comment made by Personne McGhee; (2) the district court erred in

refusing to instruct the jury on the defense of duress; (3) the

district court erred in denying defendant’s motions for judgment of

acquittal; (4) the district court erred in submitted a redacted

copy of the indictment to the jury; (5) the district court erred in

instructing the jury regarding the mental state necessary to

convict on the drug distribution and possession charges, and in

2

answering the jury’s questions during deliberations; (6) the

government acted in bad faith by indicating that a proposed defense

witness might be re-indicted if he testified; (7) the district

court erred in refusing to grant immunity to the proposed defense

witness; (8) the district court erred in denying defendant’s motion

for a new trial; and (9) defendant is entitled to a new trial due

to the above cumulative errors allegedly committed during the

trial. For the following reasons, we AFFIRM the judgment of the

district court.

I. Evidence Presented at Trial

The evidence produced at trial by the government revealed that

defendant was employed as a correctional officer at United States

Penitentiary Big Sandy. Defendant was introduced to inmate

Personne McGhee by inmate Kenneth Bates in 2005. In mid-2005,

Personne McGhee devised a scheme to import drugs into Big Sandy

through a group which also included inmate Sherlone Henderson,

Temeka Halliburton (Henderson’s girlfriend), inmate David Ward,

Maria Mims (Ward’s girlfriend), inmate Manny Gordiola, and Clady

McGhee (Personne McGhee’s mother). Personne McGhee approached

defendant and asked her if she would like to make some money. He

told her that she would “just have to bring some in through the

institution” and offered her a price, and defendant agreed.

In late 2005, Gordiola arranged for heroin to be shipped to

Mims in Indianapolis. Personne McGhee told Clady McGhee that he

wanted her to pick up some “legal papers,” but she later learned he

was referring to drugs. In late December, 2005, Clady McGhee and

Halliburton went to Indianapolis and picked up the drugs from Mims.

Clady McGhee and Halliburton came to the institution, and Clady

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McGhee advised Personne McGhee that the package had arrived.

Personne McGhee told Clady that a woman guard would be picking up

the package at their motel in Paintsville, and gave a description

of the defendant. Personne McGhee arranged through his street

contacts to have cash delivered to Clady McGhee so that she could

pay defendant $800. Personne McGhee instructed his mother to put

the heroin in a baby powder bottle. He sent a note to defendant

with one of the runners working in the institution to let her know

the location of the motel and the room number. Defendant arrived

at the motel room, and Halliburton gave her the baby powder bottle

containing the heroin and an envelope containing money. The next

day, an inmate brought a bottle of baby powder to Personne McGhee

from the block where defendant was working. The bottle contained

balloons of heroin.

A second delivery of heroin was arranged in March of 2006.

Clady McGhee and Halliburton picked up a package from Mims in

Indianapolis. Clady McGhee and Halliburton again went to the motel

in Paintsville. Personne McGhee instructed them to give defendant

$1,000. Personne McGhee sent a letter to defendant by runner to

inform her of the location of the motel where she could meet with

Clady McGhee. Defendant came to the motel room and picked up the

baby powder bottle, and Clady McGhee gave her the money. The next

day, Personne McGhee informed Clady McGhee that he had received the

baby powder bottle containing 108 portions of heroin wrapped in

plastic. Halliburton observed defendant at the prison when they

went to visit with Personne McGhee and, recognizing her, learned

that defendant was a prison guard.

Gordiola placed another order for heroin in July of 2006.

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Personne McGhee also arranged for a pound of marijuana and two cell

phones to be brought to the institution. Clady McGhee arranged for

Grady Perry to take her to Indianapolis to pick up the heroin at

Mims’ address. Clady McGhee and Perry then went to Columbus, Ohio,

and picked up a Tide box and $1,000 from Personne McGhee’s half

brother, Matt Meyers. Personne McGhee instructed his mother to

place a handicap sticker in the window of the motel room so that

the defendant would know where to come. Clady McGhee and Perry

then went to a motel in Paintsville, and Clady McGhee placed a

handicap sticker in the window. Personne McGhee contacted

defendant by letter to tell her which motel to go to, and to look

for a handicap sticker in the window. McGhee instructed his mother

to pay defendant $1,000. The next morning, defendant arrived at

the motel about 8:25 a.m. Clady McGhee gave her the money, and

defendant picked up the boxes and left.

The evidence further revealed that David Link, a Special

Investigative Agent at Big Sandy, began an investigation into drugs

being brought into the prison. He received information from an

inmate that drugs concealed in baby powder bottles were being

carried into the prison by staff. Link was told that a staff

member was involved, and defendant’s name was mentioned by one

inmate. Phone records disclosed that Personne McGhee made phone

calls to family members. The term “legal papers” was used in the

conversations as a code name for drugs. Mr. Link received

information indicating that a delivery of drugs was imminent in

mid-July.

On Saturday, July 22nd, Clady McGhee and Grady Perry came to

visit with Personne McGhee at the institution. They were followed

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back to a motel, where surveillance was established by Link and the

FBI. Between 8:00 a.m. and 8:30 a.m., defendant arrived at the

motel in a white vehicle and entered a motel room. A handicapped

parking permit was placed in the window of the motel room.

Defendant left the motel room carrying a plastic bag and a

detergent box. She drove away in her vehicle, and was pulled over

by the Kentucky State Police about a mile up the road.

Defendant gave consent to search her vehicle, and a Tide

detergent box, a plastic bag containing a baby powder bottle, and

$1,000 in cash were found in the trunk. The Tide box contained a

brick of marijuana, which weighed approximately 435 grams, and two

cellular telephones with bases and chargers. The baby powder

bottle contained a large chunk of black tar heroin weighing

approximately 25.285 grams. Defendant informed them about the

location of the money in the car.

Defendant was advised of her Miranda rights and signed a

waiver form. She admitted possessing the items which were found in

her car. She also stated that she had brought another shipment

into the prison several months before and that she had been paid

approximately $800. Defendant stated that she brought the items

into the institution in her lunch cooler. Defendant was not placed

under arrest at that time. She was later arrested at Big Sandy on

July 28, 2006, and signed another rights waiver form. Defendant

admitted picking up three shipments at the motel.

Defendant testified at trial that she was threatened by inmate

Kenneth Bates in the housing unit around Christmas of 2005. Bates

told her personal information about herself and her family, and

informed her that she had to bring in a package for him and that he

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told her she “had no choice but to do it.” Defendant stated that

Bates threatened her life. She stated that she did not report

Bates because she was scared. She was afraid that if she pressed

the alarm button, Bates would hear it and kill her. Bates told her

that he had contacts inside and outside the prison. When defendant

left work, she went to the motel and obtained a package from Clady

McGhee. She denied receiving any money for picking up the package.

Defendant brought the package into the institution that evening in

her lunch pail and gave it to Bates. Defendant denied knowing what

was in the package.

Defendant further testified that two or three months later,

Bates told her to pick up another package, and said she had no

choice because he would kill her if she didn’t do it. She went to

the motel and obtained a package from Halliburton, but received no

money. Defendant stated she did not know what was in the package.

She gave the package to Bates the next night. Defendant did not

report Bates, although she “thought about it.”

Defendant also testified that on July 23, 2006, Bates came to

her office and told her that she had to meet his family again. The

evidence included a video tape record of Bates going to talk to

defendant in her office on that date. Defendant testified that

Bates stated that if she refused, he would kill her, and he showed

her a shank and was “really aggressive.” Defendant went to the

motel, and was told by Clady McGhee to take the Tide box, the

plastic bag, and some money which was intended for Bates. After

she left the motel, defendant was pulled over by a state trooper,

and she showed him where the money was located. She claimed she

informed the agents that Bates had threatened her life. She denied

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knowing what was in any of the packages.

Defendant further testified that she knew that it was a

violation of prison policies not to report the threats from Bates.

She acknowledged that she knew people in the county sheriff’s

officer and the Kentucky State Police, and that her uncle was the

head of the Big Sandy Regional Detention Center, but stated that

she did not contact any of these law enforcement officers about the

threats. She admitted that when Bates talked with her on July 23,

she did not press her body alarm, use her radio, or phone to call

for help, and that she could have left the office and locked Bates

in the office while she called for help, but did not do so.

Relative to the duress issue, the government presented

testimony that corrections officers are issued radios to

communicate with staff, and that some of the radios have body

alarms which alert the control center if triggered. Link testified

that if an officer leaves a phone off the hook for more than

fifteen seconds, a no-dial alarm is sent to the control center, and

staff will go to investigate the problem. Link also stated that if

an inmate makes a threat to an officer, an incident report should

be filed immediately with the shift supervisor. He testified that

if defendant felt threatened by an inmate, she could have hit her

body alarm, and a correctional officer would have responded within

fifteen to twenty seconds. He further stated that defendant could

have knocked the telephone off the hook or dialed 222, which would

have alerted other staff, and could also have re-entered the office

and locked the door.

The government also introduced evidence that corrections

officers are given training on how to report incidents involving

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manipulative inmates. The officers are trained on reporting

threats to supervisors. Plaintiff received training on how

prisoners can corrupt or compromise staff members, and would have

been instructed to avoid doing favors for inmates and to report any

pressure or threats to her supervisors. Defendant also received a

book which covered coercion and intimidation by inmates.

II. Assignments of Error

A. Questioning of Coconspirators

1. Plea Agreements

Defendant argues that the district court erred in permitting

the government to question Personne McGhee, Clady McGhee, and

Temeka Halliburton, co-conspirators who testified as government

witnesses, about the fact that they had entered into plea

agreements. At the beginning of trial, defendant objected to the

government questioning witnesses about pleading guilty to a

conspiracy with which defendant was charged. The court permitted

the government to refer to the guilty pleas in its opening

statement. Later, Personne McGhee was questioned concerning his

guilty plea to conspiracy and bringing drugs into the institution.

Clady McGhee and Halliburton were also asked about their guilty

pleas.

Evidentiary rulings of the district court are reviewed for

abuse of discretion. United States v. Lloyd, 462 F.3d 510, 516 (6th

Cir. 2006). “Evidence that a coconspirator has been convicted of

conspiring with a criminal defendant is generally inadmissible,

because it might lead the jury to ‘regard the issue of the

remaining defendant’s guilt as settled and [conclude that] the

trial is a mere formality.’” United States v. Modena, 302 F.3d

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626, 631 (6th Cir. 2002)(quoting United States v. Griffin, 778 F.2d

707, 711 (11th Cir. 1985)). However, if the coconspirator testifies

at trial, evidence of the coconspirator’s prior convictions may be

introduced so that the jury can accurately assess his credibility.

Id. If the evidence is admitted, the district court must instruct

the jury that it may not consider the coconspirator’s prior

conspiracy conviction as evidence of the defendant’s guilt. United

States v. Sanders, 95 F.3d 449, 454 (6th Cir. 1996)(“When a guilty

plea or conviction is introduced into evidence, the district court

is required to give a cautionary instruction to the effect that the

jury may use the conviction or guilty plea only to determine the

testifying witness’s credibility.”).

In this case, the three coconspirators testified at trial as

witnesses for the government. The government was properly

permitted to question them on direct examination about their guilty

pleas and conspiracy convictions “in order to ‘remove the sting’ of

any attempt to impeach [their] credibility with [their]

conviction[s] on cross-examination.” Modena, 302 F.3d at 632; see

also Sanders, 95 F.3d at 454 (holding that guilty pleas of

government witnesses were properly admitted for credibility

purposes).

The district court gave a cautionary instruction to the jury

during Personne McGhee’s testimony:

As part of that testimony, you heard evidence that Mr.

McGhee pled guilty to certain charges in this crime. You

may not consider that fact, in other words, his guilty

plea, as evidence of Ms. Stapleton’s guilt or Ms. Mims’s

guilt, it may only be used to assess the credibility of

Mr. McGhee’s testimony in terms of the weight that you

would give to Mr. McGhee’s testimony.

At the conclusion of the case, the district court again instructed

10

the jury, “The fact that Personne McGhee, Clady McGhee, and Temeka

Halliburton have pleaded guilty to a crime is not evidence that the

defendants are guilty, and you cannot consider this against the

defendants in any way.” These cautionary instructions were

adequate to ensure that the jury did not use this evidence for an

improper purpose.

2. Request for a Mistrial

Defendant also argues that the district court should have

granted her motion for a mistrial made during Personne McGhee’s

testimony. During his direct testimony, McGhee was questioned by

the government about his motive for testifying in the case. He was

asked, “Does your testimony here today violate any sort of inmate

code?” He responded, “Yes.” He stated that by testifying, his

life might be threatened by other inmates at the institution. When

asked why he was putting his life at risk by testifying, McGhee

responded, “Because I didn’t want to put my mother at risk to have

to come in here and testify against me. And I wouldn’t had [sic]

to be here if all parties involved just admitted guilt when they

knew they was [sic] guilty.” Counsel for defendant then moved for

a mistrial, objecting to the witness’s suggestion “that my client

should have plead guilty as well because they’re both charged with

the same conspiracy[.]” The district court denied the motion for

a mistrial, finding that it was appropriate for the government to

question a testifying coconspirator about the fact that he had

pleaded guilty.

The district court’s ruling on the motion for a mistrial is

reviewed for abuse of discretion. See United States v. Harris, 165

F.3d 1062, 1066 (6th Cir. 1999). In determining whether improper

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witness statements affected the substantial rights of the defendant

so as to warrant a new trial, the factors to be considered are: (1)

whether the government’s line of inquiry was reasonable and

justified by the circumstances of the witness being questioned; (2)

whether there was any showing that the government acted in bad

faith or otherwise deliberately injected the witness’s stray

remarks; (3) whether the remarks were detailed or of major

importance when compared with the other evidence against the

defendant; and (4) whether a curative instruction was sought or

given. Id.; United States v. Terry, 729 F.2d 1063, 1070 (6th Cir.

1984).

In this case, the government’s line of inquiry was reasonable

under the circumstances. Counsel for the government indicated that

they wanted to bring out the fact that McGhee’s motive for

testifying was to help his mother avoid jail time for his actions

in getting her involved in the offense. Government counsel

indicated that they did not know or anticipate that McGhee was

going to make the statement about other defendants choosing not to

plea guilty, nor did they prompt him to make the statement. This

representation is bolstered by the fact that Personne McGhee was

not a seasoned law enforcement officer, but a lay witness. The

remark was isolated, rather than being “part of a pattern

indicative of bad faith,” and the stray remark constituted only a

small part of the testimony against defendant. Harris, 165 F.3d at

1066. Finally, the district court also gave a prompt cautionary

instruction to the jury regarding McGhee’s comment. After

informing the jury that McGhee’s guilty plea could not be

considered as evidence of defendant’s guilt, the court instructed

12

the jury:

Furthermore, you as a jury are instructed to disregard

any comment that the witness might have made on his

personal opinions about what other defendants should do

in this case. That comment was inappropriate and you

should simply just disregard the comment that he made

about what other defendants perhaps should do in this

case.

The court also gave an instruction on the presumption of innocence.

Juries are presumed to understand and follow such directions from

the court. United States v. Forrest, 17 F.3d 916, 920-21 (6th Cir.

1994)(citing United States v. Sivils, 960 F.2d 587, 594 (6th Cir.

1992)).

Considering the relevant factors, the district court did not

abuse its discretion in denying the motion for a mistrial. See

United States v. Moore, 376 F.3d 570, 575 (6th Cir. 2004)(denial of

mistrial upheld where single comment was not “of major import” when

compared with other evidence, and district court immediately

admonished the jury to disregard the comment); Harris, 165 F.3d at

1066 (district court did not abuse discretion in denying mistrial

where stray remark constituted minuscule part of evidence against

defendant, line of questioning was reasonable, the government did

not intentionally elicit reference to prior arrest, and court gave

an immediate and clear limiting instruction); Forrest, 17 F.3d at

921 (mistrial not warranted in light of clear admonition by judge

and ample evidence of guilt); United States v. Hernandez, 873 F.2d

925, 928 (6th Cir. 1989)(denial of mistrial upheld where improper

reference to arrest was unsolicited, government’s line of

questioning was reasonable, limiting instruction was immediate,

clear, and forceful, and reference was only a small part of

evidence against defendant).

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B. Refusal to Instruct on Duress Defense

On January 9, 2007, the government filed a motion in limine to

preclude defendant from presenting a duress defense at trial. The

court denied the motion without prejudice by order filed on

February 8, 2007, stating that the government “may renew its motion

at the close of evidence as it relates to potential jury

instructions.” Following the charge conference, the court invited

argument on whether to instruct the jury on the defense of duress.

The government renewed its motion in limine, and the court granted

the motion, declining to instruct the jury on the duress defense.

The district court found that the defendant failed to establish a

prima facie case of duress in regard to the element of the defense

which required defendant to show that she had no reasonable legal

alternative to violating the law either before or during the event.

This court “reviews jury instructions as a whole to determine

whether they fairly and adequately submitted the issues and

applicable law to the jury.” United States v. Brown, 367 F.3d 549,

555 (6th Cir. 2004). A district court’s refusal to give a requested

jury instruction is reversible error only if: (1) the instruction

is a correct statement of the law; (2) the instruction is not

substantially covered by other delivered charges; and (3) the

failure to give the instruction impairs the defendant’s theory of

the case. United States v. Newcomb, 6 F.3d 1129, 1132 (6th Cir.

1993).

Whether a defendant has established a defense of duress is a

question of law which this court reviews de novo. United States v.

Johnson, 416 F.3d 464, 468 (6th Cir. 2005). A court is not required

to instruct the jury on a defense the theory of which is not even

14

supported by the testimony of the defendant. United States v.

Plummer, 789 F.2d 435, 438 (6th Cir. 1986). “Therefore, where the

evidence is insufficient as a matter of law to support a duress

defense, a trial judge should exclude that evidence.” Johnson, 416

F.3d at 468; see also United States v. Singleton, 902 F.2d 471,

472-73 (6th Cir. 1990)(defense of duress is appropriate only in rare

situations and should be narrowly construed, and an instruction on

duress is properly denied “if the evidence could not support a

verdict based on it.”)(citing United States v. Bailey, 444 U.S.

394, 398-99 (1980)).

Under Singleton, an instruction on duress is appropriate if

the defendant has produced evidence upon which a reasonable jury

could conclude by a preponderance of the evidence that each of the

following circumstances exist:

(1) defendant was under an unlawful and present,

imminent, and impending threat of such a nature as to

induce a well-grounded apprehension of death or serious

bodily injury;

(2) defendant had not recklessly or negligently placed

herself in a situation in which it was probable that she

would be forced to choose the criminal conduct;

(3) defendant had no “reasonable, legal alternative to

violating the law, a chance both to refuse to do the

criminal act and also to avoid the threatened harm”;

(4) a direct causal relationship may be reasonably

anticipated between the criminal action taken and the

avoidance of the threatened harm; and

(5) defendant did not maintain the illegal conduct any

longer than absolutely necessary.

Singleton, 902 F.2d at 472-73 (internal quotation marks omitted).

The district court’s determination that defendant had failed

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to present a prima facie case in regard to the third element is

well supported by the record. The evidence, including defendant’s

testimony, reveals that there were several reasonable legal

alternatives which defendant could have pursued when faced with

Bates’s threats, including using the various alarm systems

available to officers in the institution and reporting the threats

to supervisors as required under the institution’s policies.1 In

addition, even assuming that defendant was under an imminent,

impending threat of death or serious bodily injury from Bates when

he confronted defendant in the institution, that threat was no

longer imminent or impending as soon as defendant was no longer in

Bates’s presence. The district court properly refused to instruct

the jury on the duress defense.2

C. Denial of Rule 29 Motions

1. Standard of Review

This court reviews de novo a denial of a motion for judgment

of acquittal. United States v. McGhee, 529 F.3d 691, 696 (6th Cir.

2008). The applicable standard is whether, viewing the trial

testimony and exhibits in the light most favorable to the

1

Although the district court relied on defendant’s failure to proffer

evidence regarding the third element, it also appears from the evidence,

including defendant’s testimony, that the first and fifth elements of the defense

were not satisfied. Defendant was not under an imminent threat of death or

serious bodily injury from Bates while she was away from the institution picking

up the drugs at the motel, and thus she engaged in the illegal conduct longer

than absolutely necessary to avoid any immediate threat from Bates while he

confronted her in the institution.

2

Despite this ruling, the issue of duress was indirectly presented to the

jury. In charging on the conspiracy counts, the court instructed the jury that

in order to convict the defendant, the jury had to find that the defendant

“voluntarily” joined the conspiracies. By finding defendant guilty on the

conspiracy counts, the jury must have rejected defendant’s testimony that she did

not voluntarily become involved in the plan to bring contraband into the

institution.

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prosecution, any rational trier of fact could have found the

essential elements of the crime beyond a reasonable doubt. See

Jackson v. Virginia, 443 U.S. 307, 319 (1979); United States v.

Solorio, 337 F.3d 580, 588 (6th Cir. 2003). In doing so, the court

does not reweigh the evidence, re-evaluate the credibility of

witnesses, or substitute its judgment for that of the jury. United

States v. Hilliard, 11 F.3d 618, 620 (6th Cir. 1993). The evidence

need not exclude every reasonable hypothesis except that of guilt.

United States v. Adamo, 742 F.2d 927, 932 (6th Cir. 1984).

2. Duress as Defense to Conspiracy Offenses

Defendant argues that the district court erred in denying her

Rule 29 motion in light of her duress defense, and further argues

that the evidence was insufficient to show that she willingly

became a member of the conspiracies alleged in the indictment.

However, the defense of duress presents an issue which is separate

and apart from the elements of the conspiracy offenses. The

elements of a drug conspiracy under 21 U.S.C. § 846 are: (1) an

agreement to violate drug laws; (2) knowledge and intent to join

the conspiracy; and (3) participation in the conspiracy. United

States v. Caver, 470 F.3d 220, 232-33 (6th Cir. 2007). In order to

convict defendant for conspiracy in violation of 18 U.S.C. § 371,

the government was required to prove: (1) the existence of an

agreement to violate the law; (2) the defendant’s knowledge and

intent to join the conspiracy; and (3) an overt act constituting

actual participation in the conspiracy. United States v. Hughes,

505 F.3d 578, 593 (6th Cir. 2007).

The duress defense “does not negate a defendant’s criminal

state of mind when the applicable offense requires a defendant to

17

have acted knowingly or willfully; instead, it allows the defendant

to ‘avoid liability ... because coercive conditions or necessity

negates a conclusion of guilt even though the necessary mens rea

was present.’” Dixon v. United States, 548 U.S. 1, 7

(2006)(quoting Bailey, 444 U.S. at 402). Thus, the fact that

defendant claimed to have acted involuntarily while under duress

does not undermine the government’s proof on the issue of whether

defendant knowingly and intentionally joined the conspiracies.

The government produced evidence sufficient to permit a

rational trier of fact to conclude that defendant knowingly and

intentionally became a part of the charged conspiracies. Personne

McGhee testified that he approached defendant and asked her if she

would like to make some money. He told her that she would “just

have to bring some in through the institution” and offered her a

price, and defendant agreed. Defendant admitted picking up

packages on three occasions and smuggling the first two packages

into the institution in her lunch cooler. There was also testimony

that defendant was paid for her part in the conspiracy. The

testimony of Clady McGhee and Kim Halliburton establishes that

defendant was paid $800 for the first delivery and $1,000 for the

second and third deliveries. There was also evidence that

defendant admitted receiving $800 for one delivery, and that she

was found to be in possession of $1,000 after picking up packages

on the third occasion. The jury could reasonably infer from this

evidence that the defendant participated in the conspiracies

knowingly and intentionally.

As previously stated, defendant did not produce sufficient

evidence to establish a duress defense, and the district court

18

properly determined that defendant had failed to proffer evidence

sufficient to establish the defense of duress or to warrant an

instruction on that defense. Even if defendant had successfully

proffered sufficient evidence to warrant a jury instruction, the

issue of duress would have presented a fact question for the jury;

defendant was not entitled to judgment as a matter of law on her

duress defense. The district court did not err in denying

defendant’s Rule 29 motions on the conspiracy counts based on her

duress defense.

3. Knowledge of Contents of Packages

Defendant also argues that the evidence was insufficient to

support her conviction on the drug charges because the government

failed to show that she had knowledge that the packages she picked

up contained controlled substances.

The elements of the offense of distribution of a controlled

substance under 21 U.S.C. § 841(a)(1)3 are that (1) the defendant

knowingly; (2) distributed a controlled substance. United States

v. Forrest, 17 F.3d 916, 919 (6th Cir. 1994). The elements of the

offense of possession with intent to distribute a controlled

substance under 21 U.S.C. § 841(a)(1) are that “(1) the defendant

knowingly; (2) possessed a controlled substance; (3) with intent to

distribute.” United States v. Gibbs, 182 F.3d 408, 424 (6th Cir.

1999). The elements of a drug conspiracy under 21 U.S.C. § 846

are: (1) an agreement to violate drug laws; (2) knowledge and

intent to join the conspiracy; and (3) participation in the

conspiracy. Caver, 470 F.3d at 232-33.

3

21 U.S.C. § 841(a)(1) provides that “it shall be unlawful for any person

knowingly or intentionally–(1) to ... distribute, ... or possess with intent to

... distribute, ... a controlled substance[.]”

19

To prove an offense under § 841(a)(1), the government is not

required to show that the defendant knew the exact type or quantity

of the controlled substance involved. United States v. Villarce,

323 F.3d 435, 439 (6th Cir. 2003)(§ 841(a)(1) requires nothing more

specific than an intent to distribute a controlled substance; “drug

type and quantity are irrelevant to the mens rea element of §

841(a)(1)”)(citing United States v. Garcia, 252 F.3d 838, 844 (6th

Cir. 2001)). Rather, the government is only required to prove that

the defendant knew that the substance was some type of controlled

substance. Villarce, 323 F.3d at 439. This burden also applies to

conspiracies to violate § 841(a)(1) under §846. Id. at 439 n. 1.

Circumstantial evidence, standing alone, can sustain a guilty

verdict. United States v. Jones, 124 F.3d 781, 784 (6th Cir. 1997).

Evidence was introduced that defendant had received training

on not doing favors for prisoners, the possession by inmates of

contraband such as drugs, and the problems created by gangs dealing

drugs within the prison. There was testimony that corrections

officers are also instructed that it is illegal to bring contraband

such as drugs to inmates.

Personne McGhee testified that he asked defendant if she would

be interested in making some money, and she agreed that she would

because she was trying to make some money to pay for her schooling.

McGhee was asked, “What did you tell her that she would have to do

to make the money?” and he responded, “She would just have to bring

some in through the institution.” Although he did not clarify what

he meant by “some,” this testimony occurred in the context of his

testimony concerning his plans for obtaining drugs to sell in the

institution. There was also evidence that on the occasion of the

20

last delivery, defendant called Clady McGhee’s cell phone and

stated, “I’m calling about the legal papers.” The reference to

“legal papers” was the same code term for drugs used by Personne

McGhee while speaking on the phone with Clady. Personne McGhee

also testified that “legal work” was a code name for drugs in the

institution.

Defendant was paid $800 for the first delivery and $1,000 for

the next two deliveries. Since this was a substantial amount of

money to deliver something small enough to be concealed in a baby

powder bottle, the jury could reasonably conclude that defendant

would know that the contents were something that would be of

considerable value to McGhee and other inmates, such as controlled

substances. The jury could also reasonably find that it would be

unreasonable for defendant to conclude that the packages contained

cash, since there was testimony that cash is of no value to an

inmate because the medium of exchange at the institution is stamps,

and an inmate cannot deposit cash into his account.

The value of the controlled substances was revealed by

Personne McGhee’s testimony. The first shipment contained three

ounces of heroin, which could be sold in the prison for up to

$1,500 per gram. McGhee also testified that the third shipment

included a pound of marijuana, which could be sold for $15 for one

“joint”, and up to $1,000 to $1,500 per ounce. McGhee also

testified that he was serving a sentence for drug distribution at

the institution.

In light of the circumstances in evidence, including

defendant’s training as a corrections officer, the jury could

reasonably conclude that defendant was aware that the packages

21

contained a controlled substance, and the district court did not

err in denying defendant’s Rule 29 motions on the drug counts.4

D. Submission of Redacted Copy of Indictment to the Jury

Defendant argues that it was error for the district court to

submit a written copy of the indictment to the jury which deleted

the reference to Kenneth Bates, who was previously dismissed as a

defendant. Defense counsel objected to sending a written copy of

the indictment to the jury, but also stated that if the court

decided to give the jury a copy, it should be an accurate copy.

“The decision whether to strike language from an indictment

rests within the sound discretion of the district court.” United

States v. Emuegbunam, 268 F.3d 377, 394 (6th Cir. 2001). “A court

does not err in ignoring irrelevancies in or striking surplusage

from an indictment.” United States v. Grenoble, 413 F.3d 569, 577

(6th Cir. 2005)(citing United States v. McGuire, 744 F.2d 1197, 1206

(6th Cir. 1984)(holding that it was not error to delete the name of

a dismissed defendant from the indictment as surplusage)). Since

Bates was no longer a defendant in the case, it was permissible for

the district court to delete his name from the indictment as

surplusage. Defendant was not entitled to have Bates’s name remain

simply to bolster a duress defense which the trial court properly

ruled was inadequate to submit to the jury.

4

In addition, the district court also gave an instruction on deliberate

ignorance, which will be discussed infra. The concept of deliberate indifference

permitted the jurors to conclude that the element of knowledge had been proved

if they were convinced beyond a reasonable doubt that the defendant was aware of

a high probability that the packages contained controlled substances or cellular

phones, and that she deliberately closed her eyes to the obvious risk that she

was engaging in unlawful conduct. See United States v. Gullett, 713 F.2d 1203,

1212 (6 th Cir. 1983). The evidence presented in this case would have permitted

the jury to find that, at the very least, defendant acted with deliberate

ignorance.

22

The decision to submit a written copy of the indictment to the

jury is reviewed under an abuse of discretion standard. United

States v. Smith, 419 F.3d 521, 527 (6th Cir. 2005). A district

court acts within its discretion in reading the indictment to the

jury, a practice which helps to inform the jury of the charges

against the defendant. Id. at 530 (citing United States v.

Maselli, 534 F.2d 1197, 1202 (6th Cir. 1976)). However, if the

court furnishes a copy of the indictment to the jury, it must give

a limiting instruction “to the effect that the indictment is not to

be considered evidence of the guilt of the accused.” United States

v. Scales, 594 F.2d 558, 561-62 (6th Cir. 1979); United States v.

Baker, 418 F.2d 851, 852-53 (6th Cir. 1969).

Here, the court gave a limiting instruction, telling the jury:

“The indictment is not any evidence at all of guilt[]. It is just

the formal way that the government tells the defendants what crimes

they are accused of commit[ing]. It does not even raise any

[suspicion] of guilt[].” The court later referred to the counts in

the indictment by number while describing the charges contained in

the individual counts while noting that the government was only

required to prove an agreement to commit one of the crimes

described in the conspiracy count, and while instructing the jury

that the government was required to prove only one of the overt

acts alleged in the indictment. These references did not convert

the indictment into evidence, but rather assisted the jury in

distinguishing the eight counts in the indictment and the

instructions relevant to each. The district court did not abuse

its discretion in providing the jury with a redacted copy of the

indictment.

23

E. Jury Instructions

1. Instructions on Knowledge and Deliberate Ignorance

Defendant argues that the district court erred in giving

instructions which allegedly led the jury to believe that it need

not find that defendant knew that the contents of the packages

contained a controlled substance. Although the defendant’s

arguments are unclear, the gist appears to be that the trial court

should have told the jury that in order to convict on the

possession counts, the jury had to find that defendant knew that

the packages contained heroin and marijuana specifically.

The district court’s choice of jury instructions is reviewed

according to an abuse of discretion standard. United States v.

Beaty, 245 F.3d 617, 621 (6th Cir. 2001). In reviewing jury

instructions, the test is whether the charge, taken as a whole,

fairly and adequately submits the issues and applicable law to the

jury. United States v. Layne, 192 F.3d 556, 574 (6th Cir. 1999).

Trial courts have broad discretion in drafting jury instructions.

United States v. Prince, 214 F.3d 740, 761 (6th Cir. 2000). The

charge must be considered as a whole. Id.

Defendant complains that the trial court did not tell the

jurors that they were required to find that the defendant knew the

packages contained heroin and marijuana. This was not error. As

previously stated, the government is only required to prove that

the defendant knew that the substance was some type of controlled

substance. Villarce, 323 F.3d at 439. The district court also

gave a general instruction on deliberate ignorance which applied to

all of the charges in the case:

Next I want to explain something about proving a

defendant’s knowledge. No one can avoid responsibility

24

for a crime by deliberately ignoring the obvious. If you

are convinced that the defendant deliberately ignored a

high probability that the packages contained controlled

substances and/or cellular phones, then you may find that

she knew the packages contained controlled substances

and/or cellular phones. But, to find this, you must be

convinced beyond a reasonable doubt that the defendant

was aware of a high probability that the packages

contained controlled substances and/or cellular phones,

and that the defendant deliberately closed her eyes to

what was obvious. Carelessness, or negligence, or

foolishness on her part is not the same as knowledge, and

it is not enough to convict. This, of course, is all for

you to decide.

This instruction basically mirrored Sixth Circuit Pattern Jury

Instruction 2.09, which was upheld in United States v. Mari, 47

F.3d 782, 785 (6th Cir. 1995). Based on the evidence, this

instruction was appropriate. See United States v. Springer, 262

Fed.App’x 703, 706 (6th Cir. Feb. 1, 2008)(upholding instruction on

deliberate ignorance in case involving deputy jailor transporting

packages containing drugs to inmate in exchange for payments of

$1,000 on two occasions).

2. Supplemental Instructions

During deliberations, the jury sent a note to the judge asking

a “Question on Count 7.” The jury wrote, “In order to be convicted

of possession with intent to distribute, would the defendant have

to know exactly or in exact detail what they possess. For example,

marijuana or knowingly possess that specific substance.” As to

Count 8, the jury also noted, “Also, we need the definition of ‘to

wit’ within the context it is used.” Count 8 charged defendant

with attempting to provide prohibited items to an inmate, “to wit,

the controlled substances heroin and marijuana, and two cellular

telephones.” The government requested that the jury be told in

25

response that the defendant does not have to know the exact nature

of the substance, but rather simply that it is a controlled

substance. Defense counsel objected to any additional instructions

being given, and suggested that the jury be told to re-read the

previous instructions.

The district court wrote in response to the question on Count

7: “The government need not prove that the defendant knew the type

and amount of a controlled substance that she possessed; the

government need only show that the defendant knew that she

possessed some controlled substance.” In response to the question

on Count 8, the court wrote: “In this context ‘to wit’ means ‘that

is to say.’”

Defendant argues that the jury’s request for a definition of

the term “to wit” demonstrated that the jury was confused about

whether defendant had to have knowledge that the packages contained

a controlled substance. However, that argument reads too much into

the question. The jury simply requested a definition of the

meaning of the phrase “to wit” and the district court provided that

definition. Defendant further argues that since the trial court

did not specifically refer to marijuana in answering the question

regarding Count 7, the jury could have concluded that the cell

phones were a controlled substance. This argument is not well

taken in light of the court’s previous instructions on the elements

of Count 7, which told the jurors that they had to find that the

defendant “knowingly and intentionally possessed a mixture or

substance containing a detectable amount of marijuana, a Schedule

I controlled substance” and defined “controlled substance” as “a

drug or other substance included in the Schedule I of the federal

26

drug laws, and would include marijuana.”

3. Rule 43 Error

Defendant also raises as error the fact that the judge drafted

a written response to the jury’s questions and had a court security

officer deliver the response to the jury rather than returning the

jury to the courtroom for additional instructions. Defense counsel

did not object to this procedure at trial. Since there was no

objection, the convictions may be reversed only if the manner of

transmitting the supplemental instructions constituted plain error.

United States v. Combs, 33 F.3d 667, 669 (6th Cir. 1994). Plain

error requires a finding that, taken as a whole, the jury

instructions were so clearly erroneous as to likely produce a grave

miscarriage of justice. Id.

Pursuant to Fed.R.Crim.P. 43, “[t]he defendant shall be

present at ... every stage of the trial[.]” Fed.R.Crim.P. 43(a).

Therefore, “it is settled law that the district court is required

to follow the same procedure in giving supplemental instructions as

in giving original instructions.” Combs, 33 F.3d at 669. The

court must respond to the jury’s question in open court and in the

presence of the parties and counsel for both sides. Id. However,

any violation of Rule 43 must be considered together with

Fed.R.Crim.P. 52(a), which provides that harmless error is to be

disregarded. United States v. Harris, 9 F.3d 493, 499 (6th Cir.

1993)(violation of Rule 43 will not result in reversal if there is

no reasonable possibility of prejudice).

In this case, there was a technical violation of Rule 43

because the jury was not brought back into the courtroom; rather,

the court sent the response to the jury’s questions in writing.

27

However, the record indicates that the defendant and all counsel

were present in the courtroom after the jury’s note was received by

the court, and the court heard arguments from counsel in the

presence of the defendant concerning what response should be given.

Counsel were informed of the contents of the judge’s note before it

was given to the jury and had the opportunity to raise objections.

Thus, this is not a case where the judge acted ex parte, with no

input from the parties or counsel, in answering the jury’s

questions. The responses of the court to the jury’s questions were

brief and correct. Under these circumstances, defendant cannot

show that she suffered any prejudice because the jury was not

physically returned to the courtroom to receive the answers to the

questions.

F. Defense Attempts to Call Kenneth Bates as a Witness

1. Prosecutorial Misconduct

Defendant argues that she was unable to call Kenneth Bates as

a witness in support of her duress defense because of alleged

prosecutorial misconduct. 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); Johnson v.

Bell, 525 F.3d 466, 480 (6th Cir. 2008). Prosecutorial and judicial

actions aimed at discouraging defense witnesses from testifying may

deprive a defendant of this right. United States v. Roach, 502

F.3d 425, 437 (6th Cir. 2007). Governmental conduct must amount to

a substantial interference with a witness’s free and unhampered

determination to testify before a violation of due process or the

Sixth Amendment may be found. United States v. Pierce, 62 F.3d

818, 833 (6th Cir. 1995). Even when interference occurs, a

28

violation of a defendant’s right to call witnesses is subject to

harmless-error analysis. United States v. Foster, 128 F.3d 949,

953 & n. 4 (6th Cir. 1997).

The fact that a witness decides to invoke his or her Fifth

Amendment right not to testify does not deny the defendant seeking

to call that witness a fair trial. “Washington v. Texas does not

hold that a defendant has the right to present any and all

witnesses.” Davis v. Straub, 430 F.3d 281, 290 (6th Cir. 2005).

As the Supreme Court stated in Washington, “Nothing in this opinion

should be construed as disapproving testimonial privileges, such as

the privilege against self-incrimination[.]” Id., 388 U.S. at 23

n. 21.

During trial, counsel for defendant informed the court that he

was planning on calling Kenneth Bates as a witness. The government

had previously filed a motion to dismiss the case against Bates on

January 30, 2007, on the ground that the government did not feel

that it could meet its burden of proof beyond a reasonable doubt

against Bates at that time. The motion to dismiss was granted on

February 1, 2007, although the court did not specify whether the

dismissal was with or without prejudice.

After defense counsel revealed his intention to call Bates as

a defense witness, the district court determined that the Rule 48

dismissal of the charges against Bates was a dismissal without

prejudice, noting that the court did not believe that the

government sought the dismissal for some kind of improper purpose.

Bates was examined in camera after being given the opportunity to

confer with counsel. He refused to answer questions, invoking his

Fifth Amendment privilege on the advice of his advisory attorney.

29

The government indicated that it might re-indict Bates based on his

testimony. Based on the questions posed by defense counsel, the

district court ruled that Bates could invoke his Fifth Amendment

privilege.

Defendant argues that the government engaged in misconduct by

dismissing the charges against Bates, then advocating that the

dismissal was without prejudice. Defendant has not shown how the

dismissal, in itself, interfered in any way with her plan to call

Bates as a witness. In regard to the government’s argument that

the dismissal should be without prejudice, this court has noted

that the government is normally free to dismiss one indictment

under Rule 48(a) and bring another indictment based on further

development of the case. United States v. Newsome, 887 F.2d 1088

(table), 1989 WL 123235 (6th Cir. Oct. 17, 1989)(citing United

States v. Mendenhall, 597 F.2d 639, 641 (8th Cir. 1979)). The

primary purpose of Rule 48(a) is the “protection of the defendant’s

rights ... ‘to prevent harassment of a defendant by charging,

dismissing and re-charging without placing a defendant in

jeopardy.’” United States v. Salinas, 693 F.2d 348, 351 (5th Cir.

1982)(quoting United States v. Cox, 342 F.2d 167, 171 (5th Cir.

1965)). Under Rule 48(a), courts must grant prosecutors leave to

dismiss charges unless dismissal is “clearly contrary to manifest

public interest.” Rinaldi v. United States, 434 U.S. 22, 30

(1977); United States v. Robertson, 45 F.3d 1423, 1437 n. 14 (10th

Cir. 1995)(courts are vested only with limited supervisory power of

prosecutorial charging decisions specifically under Rule 48(a)).

As the district court found, there is nothing in the record to

suggest that the government moved to dismiss the charges against

30

Bates for an improper purpose. There is no indication in the

record that Bates, the person Rule 48 was designed to protect, ever

objected to the dismissal of the indictment. Although the original

order did not specify that the dismissal was without prejudice, the

district court noted that dismissal pursuant to Rule 48(a) “is

presumed [to be] without prejudice unless the order specifically

notes otherwise.” (Citing United States v. Ortega-Alvarez, 506

F.2d 455, 458 (2d Cir. 1974)). The district court further

concluded that since the government had never presented any proof

against Bates, jeopardy had not attached, citing Dortch v. United

States, 203 F.2d 709, 710 (6th Cir. 1953)(“It is also settled law

that a nolle prosequi and a dismissal without prejudice do not bar

a second prosecution for the same offense, inasmuch as such

terminations are not tantamount to acquittal.”).

Counsel for the government noted during a conference with the

court that “the probability, the very real probability exists that

if Mr. Bates takes the stand and is subject to direct and then

cross-examination, he may well fill in the blanks, so to speak, or

give the Government additional information” which would warrant

charges being brought against him. The court then arranged for

Bates, who had been representing himself, to consult with his

advisory counsel. The court then permitted defendant’s counsel to

conduct a voir dire examination of Bates, and Bates refused to

answer the questions, invoking his Fifth Amendment right not to

incriminate himself. The government then reiterated its position

to the court on the privilege issue, noting that “the United States

may well, based on what they hear from this witness, revisit and

perhaps re-indict[.]” The decision to re-indict Bates if he

31

provided new evidence during his testimony was a matter within the

government’s discretion. There is no evidence that the government

engaged in threatening behavior or intimidated Bates in any way to

discourage him from testifying.

The instant case is similar to Davis. In that case, the

prosecutor requested a sidebar with the judge and informed the

court that the witness was a suspect and should be informed of his

constitutional rights. 430 F.3d at 287. The judge questioned the

witness briefly and appointed counsel to advise the witness. Id.

The court stated, “Neither the prosecutor’s nor the judge’s conduct

was unconstitutional, especially considering the ethical

obligation, imposed on prosecutors by the ABA’s model guidelines,

to” advise a witness of his or her rights against self-

incrimination. Id., citing ABA Standards for the Administration of

Criminal Justice § 3-3.2(b). This court upheld the state courts’

determination that the prosecutor did not intimidate the witness

into invoking the privilege. Id.

In this case, defendant has failed to show evidence of

governmental conduct amounting to a “substantial interference with

a witness’s free and unhampered determination to testify[.]” Roach,

502 F.3d at 437. The district court’s decision to permit Bates to

invoke his Fifth Amendment right not to testify was not erroneous.

Finally, even assuming that defendant was improperly denied Bates’s

testimony, any error was harmless because it is not clear that

Bates’s testimony would have supported her duress defense. The

record demonstrates that defendant would have been unable to

establish a defense of duress even if Bates’s testimony was

favorable to her defense.

32

2. Refusal to Grant Immunity

Defendant argues that Bates should have been granted immunity

so that she could call him as a witness. After Bates indicated

that he would invoke his Fifth Amendment right not to testify,

counsel for defendant requested that the trial court grant Bates

immunity. The court concluded that it did not have the authority

to grant witness immunity, and the government indicated that it was

not prepared to grant immunity because it might decide to re-indict

Bates depending on his testimony.

Defendant’s challenge to the decision of the prosecution and

the court not to grant immunity to Bates is without merit. See

Emuegbunam, 268 F.3d at 401. “No court has authority to immunize

a witness.” Pillsbury Co. v. Conboy, 459 U.S. 248, 261 (1983);

United States v. Talley, 164 F.3d 989, 997 (6th Cir. 1999)(district

court is without authority to grant immunity to a witness who

asserts his Fifth Amendment privilege or to force the government to

do so). Rather, 18 U.S.C. §6003 gives the executive branch sole

authority to grant use immunity to a witness; it does not require

the government to grant a defense witness immunity. United States

v. Mohney, 949 F.2d 1397, 1401 (6th Cir. 1991).

Defendant argues that Bates’s exculpatory testimony was

essential to an effective defense, and that this outweighed the

government’s interests in declining to offer immunity. However,

this court, with one narrow exception,5 has rejected the effective

defense exception. Emuegbunam, 268 F.3d at 401. This court has

5

The judicial remedy of compelled immunity may be appropriate where the

government’s selective grant of immunity to its own witnesses while denying

immunity to defense witnesses might deprive a defendant of a fair trial. Talley,

164 F.3d at 997. No such selective grant of immunity occurred in this case.

33

also noted, without deciding the issue, that immunity may also be

warranted to remedy prosecutorial misconduct where the defendant

meets “the high threshold” of establishing that the prosecution has

deliberately distorted the judicial fact-finding process. Id.

However, no such showing of misconduct has been made in this case.

In addition, “this theory allows the prosecution to refuse to grant

immunity to a defense witness when it does not wish to hinder a

future criminal prosecution of the witness.” Id. In Emuegbunam,

the government informed the district court that it intended to

leave open the possibility of criminal liability in the event that

the witness perjured himself or implicated himself in additional

drug transactions. Id. The government made a similar statement to

the court in this case.

The district court did not err in declining to grant Bates

immunity.

G. Denial of Motion for a New Trial

Defendant argues that the district court erred in denying her

motion for a new trial. The denial of a motion for a new trial is

reviewed for abuse of discretion. United States v. Dupree, 323

F.3d 480, 484 (6th Cir. 2003). This court will not reverse absent

a clear abuse of discretion. United States v. Pierce, 62 F.3d 818,

823 (6th Cir. 1995). The defendant bears the burden of proving that

a new trial should be granted. Id. Claims of prosecutorial

misconduct are reviewed for clear error. Id.

In her motion for a new trial, defendant argued that she was

deprived of a fair trial by the government’s introduction into

evidence of the plea agreements of Halliburton, Clady McGhee and

Personne McGhee and the government’s assertion of the possibility

34

of re-indicting Bates depending on his testimony, which allegedly

prompted Bates’s invocation of his Fifth Amendment right not to

testify. The district court denied the motion by order filed on

June 7, 2008. The court adhered to its previous ruling that the

government was permitted to question its witnesses concerning their

plea agreements, and noted that the appropriate limiting

instructions were given.

The trial court also rejected the defendant’s argument that

the government had dismissed the charges against Bates so that he

would be unavailable as a witness. The court noted that “there is

no evidence that the government moved to dismiss Kenneth Bates for

any reason other than an inability to meet their burden of proof at

trial.” The court concluded that the dismissal “was presumably

without prejudice to potential re-indictment of Mr. Bates” and that

therefore he had a Fifth Amendment right not to testify. The trial

court also observed that there was no evidence that Bates would

have provided testimony consistent with defendant’s duress defense,

and that, in fact, defendant had previously moved for severance of

her case from that of Bates due to antagonistic defenses. The

court stated that since Bates had maintained in pretrial

proceedings and pleadings that he and defendant had a consensual

intimate relationship and that he never threatened her in any way,

he could have been prosecuted for perjury if he had testified in

support of her duress defense, and was therefore entitled to invoke

his Fifth Amendment privilege. Finally, the court concluded that

since defendant failed to meet her preliminary burden of producing

sufficient evidence of the “imminence” or “lack of a reasonable

legal alternative” elements of the duress defense, she was not

35

prejudiced by the inability to call Bates as a witness.

As previously discussed above, these rulings were correct, and

the trial court did not err in denying defendant’s motion for a new

trial.

H. Cumulative Error

Defendant argues that the alleged cumulative errors during

trial warrant reversal of her convictions. A defendant may “show

that the combined effect of individually harmless errors was so

prejudicial as to render his trial fundamentally unfair.” United

States v. Trujillo, 376 F.3d 593, 614 (6th Cir. 2004); see also

United States v. Hines, 398 F.3d 713, 719 (6th Cir. 2005)(“[T]he

cumulative effect of individual errors may result in a trial

setting that is fundamentally unfair.”). However, the cumulative-

error analysis permits the court to look only at actual errors, not

non-errors. United States v. Wheaton, 517 F.3d 350, 372 (6th Cir.

2008); Campbell v. United States, 364 F.3d 727, 736 (6th Cir.

2004)(while the cumulation of errors otherwise harmless may require

reversal of a conviction, the accumulation of non-errors cannot

collectively amount to a violation of due process).

In this case, aside from the technical violation of Rule 43,

there was no error in defendant’s trial. This harmless error is

insufficient to support reversal.

III. Conclusion

In accordance with the foregoing, the judgment of the district

court is hereby AFFIRMED.

36