Petition for Writ of Certiorari — Joseph Michael McNoriell, Petitioner v. United States

No. 26-____

IN THE

SUPREME COURT OF THE UNITED STATES

_______________________

JOSEPH MCNORIELL,

Petitioner,

v.

UNITED STATES OF AMERICA,

Respondent.

_______________________

On Petition for Writ of Certiorari to the

United States Court of Appeals for the Sixth Circuit

_______________________

APPENDIX TO PETITION FOR WRIT OF CERTIORARI

_______________________

ERIC G. ECKES

PINALES STACHLER YOUNG & BURRELL CO.

LPA

455 Delta Ave., Ste. 105

Cincinnati, Ohio 45226

(513) 252-2723

eeckes@pinalesstachler.com

Counsel for Petitioner

APPENDIX

United States Court of Appeals for the Sixth Circuit,

Opinion, April 6, 2026…………………………. App. A

United States District Court for the Western District

of

Michigan,

Judgment,

May

9,

2025………………………………………………. App. B

United States Court of Appeals for the Sixth Circuit,

Denial of Petition for Rehearing En Banc, May 2,

2026………………………………………………. App. C

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UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

Kelly L. Stephens

Clerk

100 EAST FIFTH STREET, ROOM 540

POTTER STEWART U.S. COURTHOUSE

CINCINNATI, OHIO 45202-3988

Tel. (513) 564-7000

www.ca6.uscourts.gov

Filed: April 06, 2026

Mr. Eric George Eckes

Pinales, Stachler, Young & Burrell

455 Delta Avenue

Suite 105

Cincinnati, OH 45226

Mr. Vito Salvatore Solitro

Office of the U.S. Attorney

for the Western District of Michigan

330 Ionia Avenue, N.W., Suite 501

Grand Rapids, MI 49503

Re:

Case No. 24-2067, USA v. Joseph McNoriell

Originating Case No. 1:23-cr-00064-1

Dear Counsel,

The court today announced its decision in the above-styled case.

Enclosed is a copy of the court’s published opinion together with the judgment which has

been entered in conformity with Rule 36, Federal Rules of Appellate Procedure.

Yours very truly,

Kelly L. Stephens, Clerk

Cathryn Lovely

Deputy Clerk

cc: Ms. Ann E. Filkins

Enclosures

Mandate to issue.

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RECOMMENDED FOR PUBLICATION

Pursuant to Sixth Circuit I.O.P. 32.1(b)

File Name: 26a0108p.06

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

ʼn

Ň

Ň

>

v.

JOSEPH MICHAEL MCNORIELL,

Defendant-Appellant.

Ň

Ň

Ň

Ň

Ň

ŋ

No. 24-2067

Appeal from the United States District Court

for the Western District of Michigan at Grand Rapids.

No. 1:23-cr-00064-1—Jane M. Beckering, District Judge.

Argued: February 4, 2026

Decided and Filed: April 6, 2026

Before: BATCHELDER, CLAY, and RITZ, Circuit Judges.

_________________

COUNSEL

ARGUED: Eric Eckes, PINALES, STACHLER, YOUNG & BURRELL, CO., L.P.A.,

Cincinnati, Ohio, for Appellant. Vito S. Solitro, UNITED STATES ATTORNEY’S OFFICE,

Grand Rapids, Michigan, for Appellee. ON BRIEF: Eric Eckes, PINALES, STACHLER,

YOUNG & BURRELL, CO., L.P.A., Cincinnati, Ohio, for Appellant. Vito S. Solitro, UNITED

STATES ATTORNEY’S OFFICE, Grand Rapids, Michigan, for Appellee.

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_________________

OPINION

_________________

RITZ, Circuit Judge. A jury convicted Joseph McNoriell of drug crimes. McNoriell now

appeals, on several grounds, his conviction and 110-month sentence. For the following reasons,

we affirm.

I.

A.

After Drug Enforcement Administration (DEA) agents recruited drug trafficker Michael

Allen as a confidential source, they learned that Allen got his heroin and cocaine from

McNoriell. So, DEA agents enlisted Allen to purchase two kilograms of cocaine in a “buy-bust”

operation, where Allen would arrange, but not complete, the purchase, and agents would then

arrest McNoriell. The DEA agents directed Allen to meet with McNoriell on May 26, 2022, to

discuss the deal.

Without the agents’ knowledge or permission, and in violation of his

cooperation agreement with the government, Allen purchased heroin from McNoriell later that

day—an act Allen believed was necessary to avoid suspicion that he was working with law

enforcement.

In the following days, Allen made three recorded phone calls, with agents present, to

McNoriell to coordinate the cocaine purchase. During one call, DEA Agent Eric Falletich

directed Allen to arrange for the transaction to take place in Lansing, Michigan, where the

agents’ office was located. In a later call to Allen, McNoriell explained he planned to use a hotel

room in the Lansing area to “take care of the business” and reserved a room under his own name.

RE 142, Trial Tr., Vol. I, PageID 971, 985-86. This decision to rent a hotel room prompted the

agents to switch from a buy-bust operation to a stop of McNoriell’s vehicle, in order to protect

Allen and the officers’ safety.

On June 2, 2022, the day of the drug purchase, DEA agents saw a white Ford Escape pull

up to McNoriell’s car in a parking lot in Farmington Hills, Michigan.

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co-conspirator, got out of the Escape and got into McNoriell’s car. The two cars traveled to the

Lansing area but were stopped by Michigan State Police. Officers searched the cars and found

two kilograms of cocaine in the Ford Escape, which was being driven by Shantel Caldwell.

B.

A grand jury indicted McNoriell for conspiracy to distribute and possess with intent to

distribute heroin and 500 grams or more of cocaine, from August 2021 to June 2022, in violation

of 21 U.S.C. §§ 846, 841(a)(1), (b)(1)(B)(ii), (b)(1)(C) (Count I); and possession with intent to

distribute 500 grams or more of cocaine, in violation of 21 U.S.C. § 841(a)(1), (b)(1)(B)(ii) and

18 U.S.C. § 2 (Count II). The district court appointed him an attorney. As the case proceeded,

McNoriell went through three different attorneys. McNoriell ultimately moved to represent

himself on January 8, 2024, roughly four months before trial.

Nearly two weeks later, a

magistrate judge advised McNoriell of his right to represent himself and the risks of doing so as

required by Faretta v. California, 422 U.S. 806 (1975). McNoriell acknowledged these risks and

still elected to represent himself. The magistrate judge found that McNoriell knowingly and

voluntarily waived his right to counsel and appointed McNoriell’s former attorney, Scott

Graham, as standby counsel.

Approximately two weeks before trial, the district court held its final pretrial conference,

at which it conducted another Faretta colloquy. McNoriell again confirmed that he wanted to

proceed pro se. Although Graham would act as McNoriell’s standby counsel, the district court

explained McNoriell was “in control” of his representation. RE 141, Pretrial Conference Hr’g

Tr., PageID 765. The court also clarified that McNoriell could “ask [Graham] to advise [him],”

“choose to ignore” Graham’s advice, and decide “[h]ow much or little [he] want[ed] to use

[Graham’s assistance].” Id. McNoriell confirmed that he and Graham had “been working

together.” Id.

The district court then described how voir dire would proceed. The court explained if

McNoriell wanted to challenge a juror, he should tell Graham, who would then inform the court

at sidebar conference. Ultimately, however, the court told McNoriell: “It’s your decision. This

is your jury. You need to feel good about them.” Id. at PageID 772. The court asked McNoriell

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if he had “[a]ny concerns about [voir dire representation],” and he replied, “Not at all.” Id. at

PageID 773. When asked if the process “[s]ound[ed] acceptable,” McNoriell replied, “Yep.” Id.

Finally, because of “the nature of the pro se representation” that would prevent McNoriell

from approaching the lectern, the court determined that each side would conduct questioning

from counsel’s table throughout the trial, so that both parties would “be treated equally.” Id. at

PageID 780-81.

C.

Before summoning prospective jurors on the first day of trial, the district court asked

McNoriell what Graham’s involvement in the trial would be. McNoriell replied that he and

Graham would decide who would cross-examine each witness “at [the] time” the witness

testified, and they would “play it by ear” as to the opening statement. RE 142, Trial Tr., Vol. I,

PageID 800. The district court reiterated that McNoriell was “in control” and that the court

would “let [him] make decisions in terms of how [he] want[ed] that to proceed.” Id.

During voir dire, the district court held eight sidebar conferences with Graham acting on

behalf of McNoriell (as agreed upon in the pretrial conference), seven of which involved forcause challenges.

In four of those challenges, both sides agreed to strike jurors.

In one

conference, the defense attempted to use a second peremptory strike on an alternate juror when

the district court only permitted one strike on alternates. And in two of those challenges, the

defense lost contested for-cause challenges but nonetheless used peremptory strikes on those

jurors. In the remaining sidebar, a prospective juror discussed her experience as a victim of

sexual assault.

D.

1.

McNoriell and Graham both actively represented the defense at trial. Graham delivered

the opening statement, cross-examined two of the government’s witnesses (including Allen),

argued a motion to exclude the admissibility of co-conspirator statements, and argued to overrule

the government’s objection to witness testimony at sidebar. McNoriell cross-examined the

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remaining five witnesses, gave closing argument, and represented the defense at the jury

instruction conference. McNoriell and Graham both raised objections during trial.

After voir dire, the district court only held one other sidebar conference.

During

Graham’s cross-examination of the Michigan state trooper who discovered the cocaine in

Caldwell’s car, the government objected to Graham’s questioning about what the trooper

believed was legally required to search the vehicle. The court had previously granted the

government’s motion in limine to exclude evidence relating to the constitutionality of the stop.

At sidebar, the district court warned Graham that he was “stepping into some dangerous waters”

and sustained the government’s objection. RE 143, Trial Tr., Vol. II, PageID 1199.

2.

During its case, the government called DEA Agent Falletich to testify about the

investigation of McNoriell, as well as Allen’s cooperation as an informant. Through Falletich,

the government admitted the three recorded calls between Allen and McNoriell arranging the

June 2022 drug purchase. Falletich, who was present for these calls, interpreted portions of them

for the jury. During one call, McNoriell asked Allen if he “need[ed] it to come [his] way,”

which Falletich interpreted to mean that McNoriell was surprised that Allen wanted the cocaine

to come to Lansing. RE 142, Trial Tr., Vol. I, PageID 969. As to the meaning of “she don’t get

off work until, like . . . six,” Falletich understood McNoriell to mean that a female courier would

transport the cocaine to Lansing. Id. at PageID 969-70. And upon hearing McNoriell tell Allen

he would get a “room out there where you’re at, and [] you’re going to go there and take care of

the business,” Falletich testified that the agents “switched from a buy-bust operation in Lansing

. . . to a vehicle stop before Lansing” to protect Allen and the officers’ safety. Id. at PageID

971-72.

Allen also testified at trial. The government again played the three recorded calls and

asked Allen to provide his interpretations. During cross-examination, Graham asked Allen about

his unauthorized May 2022 purchase of heroin from McNoriell. Allen testified that “every time

I meet [McNoriell] is [for] a drug transaction . . . my life is in danger with this person, and every

time I meet this guy it’s a drug transaction so I didn’t want to deviate from that.” RE 143, Trial

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Tr., Vol. II, PageID 1084-85. Graham moved to strike Allen’s testimony as non-responsive, and

the district court granted the motion. After Allen complained that Graham was “trying to twist

things up” and would not let him explain why he purchased heroin from McNoriell, the district

court instructed Allen to answer Graham’s questions and informed him that “the government can

ask a follow[-]up question, and they may give you that chance.” Id. at PageID 1084.

On redirect, the government asked Allen to explain why he purchased heroin from

McNoriell. Allen replied that dealing drugs is “already a dangerous game,” and if he deviated

from his regular routine with McNoriell, he “could die, anything could happen.”

Id. at

PageID 1108. Graham did not object to this line of questioning. Id. at PageID 1108-10.

The government also moved to admit text messages between Bogan and Caldwell,

McNoriell’s co-conspirators, seized from Caldwell’s phone. In one of the messages, Bogan

asked Caldwell to purchase baking soda, “a small Pyrex and a medium size Pyrex,” a whisk, and

paper towels. RE 142, Trial Tr., Vol. I, PageID 980. Falletich testified that these were “items

. . . need[ed] to further process narcotics in multiple variations.” Id. at PageID 982. In another

message, Caldwell texted Bogan: “I took a big ass risk with my baby and all late at night on the

road and still didn’t get paid from either and use[d] my gas money.” Id. Falletich testified that

he understood this message to show that Caldwell had worked for Bogan before as a drug

courier.

McNoriell objected to the text messages as hearsay. Nonetheless, the district court

conditionally admitted the messages as co-conspirator statements and, after the close of

evidence, heard argument as to their admissibility under Federal Rule of Evidence 801(d)(2)(e)

and United States v. Enright, 579 F.2d 980 (6th Cir. 1978). Graham argued that the statements

were inadmissible because the government failed to establish “by a preponderance that there was

a conspiracy” and that McNoriell was a member. RE 143, Trial Tr., Vol. II, PageID 1202. After

analyzing the evidence presented at trial, the district court admitted the text messages, finding

that a conspiracy dating back to 2021 existed, McNoriell was a member, and the text messages

were in furtherance of that conspiracy.

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E.

The jurors found McNoriell guilty on both counts of the indictment and also found each

offense involved 500 grams or more of cocaine. In calculating the Sentencing Guidelines range,

the probation office increased its recommended base offense level by two levels due to

McNoriell’s role as a supervisor. With a total offense level of 28 and criminal history category

IV, McNoriell’s recommended guidelines range was 110 to 137 months’ imprisonment.

McNoriell objected to the leadership enhancement at sentencing, but the court overruled

McNoriell’s objection and accepted the probation office’s recommendation. The district court

sentenced McNoriell to concurrent prison terms of 110 months for each count.

II.

On appeal, McNoriell argues: (1) the district court excluded him from sidebar

conferences in violation of his Sixth Amendment rights to self-representation and to be

represented during a critical stage of the proceeding; (2) his indictment was duplicitous; (3) the

district court erroneously admitted testimony from Allen suggesting that McNoriell would

retaliate against him; (4) the district court erroneously admitted text messages between Bogan

and Caldwell; (5) the district court erroneously admitted Falletich’s testimony interpreting

recorded calls between McNoriell and Allen; and (6) the district court erroneously applied a

leadership enhancement at sentencing. For the reasons discussed below, McNoriell’s arguments

fail.

A.

McNoriell first argues that his exclusion from sidebar conferences violated his

constitutional rights to self-representation and to be represented at critical stages of the

proceeding. As an initial matter, by splitting duties with his standby counsel Graham, McNoriell

engaged in a form of hybrid representation. See, e.g., United States v. Steele, 919 F.3d 965,

975 (6th Cir. 2019) (characterizing defendant’s request to “question witnesses and otherwise

represent himself” while still represented by appointed counsel as a request for hybrid

representation); United States v. Cromer, 389 F.3d 662, 681-82 (6th Cir. 2004) (describing

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scenario where “defendant desires to represent himself in part” as a “case of hybrid

representation”). As the parties agree, though, this hybrid arrangement did not change the fact

that McNoriell knowingly and voluntarily invoked his right to self-representation. See Wilson

v. Hurt, 29 F. App’x 324, 328 (6th Cir. 2002) (“[A] trial court must obtain a waiver of the

defendant’s Sixth Amendment right to have counsel conduct the entire trial before it permits socalled hybrid representation to proceed.”); see also Cromer, 389 F.3d at 683.

And McNoriell concedes that by invoking his right to self-representation, he necessarily

waived the right to counsel. As we have held, “[t]he right to defend pro se and the right to

counsel have been aptly described as ‘two faces of the same coin’ . . . the waiver of one right

constitutes a correlative assertion of the other.” United States v. Conder, 423 F.2d 904, 908 (6th

Cir. 1970) (citation omitted).

1.

Because McNoriell did not object to his exclusion from sidebar conferences below, his

challenge would typically be subject to plain-error review.

United States v. Hendrickson,

822 F.3d 812, 825 (6th Cir. 2016). “To show plain error, a defendant must show (1) error (2)

that was obvious or clear, (3) that affected defendant’s substantial rights and (4) that affected the

fairness, integrity, or public reputation of the judicial proceedings.” United States v. Wallace,

597 F.3d 794, 802 (6th Cir. 2010). But violations of the rights to self-representation and

representation during critical stages of the proceedings are “structural” errors, which are

“defect[s] affecting the framework within which the trial proceeds, rather than simply an error in

the trial process itself.” United States v. Barnett, 398 F.3d 516, 526 (6th Cir. 2005) (quoting

Johnson v. United States, 520 U.S. 461, 468 (1997)). Structural errors automatically warrant a

new trial, “despite the effect of the error on the trial’s outcome.” United States v. Simmons,

797 F.3d 409, 413 (6th Cir. 2015) (citation omitted).

2.

The “right to represent oneself in a criminal trial” is “inhere[nt] in the structure of the

Sixth Amendment.” Jones v. Jamrog, 414 F.3d 585, 591 (6th Cir. 2005). This right is violated

in two main ways: when standby counsel impedes a defendant’s “actual control over the case he

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chooses to present to the jury,” or when participation by standby counsel “destroy[s] the jury’s

perception that the defendant is representing himself.” McKaskle v. Wiggins, 465 U.S. 168,

178 (1984). But “[a] defendant’s invitation to counsel to participate in the trial obliterates any

claim that the participation in question deprived the defendant of control over his own defense.”

Id. at 182. So when a pro se defendant agrees to “any substantial participation by counsel,

subsequent appearances by counsel must be presumed to be with the defendant’s acquiescence,

at least until the defendant expressly and unambiguously renews his request that standby counsel

be silenced.” Id. at 183.

Here, the district court allowed McNoriell to engage in a hybrid representation

arrangement that closely resembled a co-counsel relationship. Indeed, the district court gave

McNoriell wide latitude to use Graham to conduct his defense, which complicates our ability to

parse through McNoriell’s control over the case and the jury’s perception of his representation.

McNoriell tasked Graham with delivering the opening statement, cross-examining two of

the government’s witnesses (including Allen), arguing a motion to exclude the admissibility of

co-conspirator statements, and raising relevant objections, a responsibility he shared with

McNoriell.

McNoriell also agreed to Graham’s participation at sidebar conferences, including during

voir dire, and failed to object to this participation during trial. To review, at the final pretrial

conference, the court assured McNoriell that he would remain “in control” of his representation.

RE 142, Trial Tr., Vol. I, PageID 800. Specifically as to voir dire, the court explained that if

McNoriell had any objections to a juror, he could simply tell Graham, who would convey

McNoriell’s objections at sidebar. McNoriell, in turn, assured the court—twice—that he had no

concerns with this process, which “sound[ed] acceptable” to him. RE 141, Pretrial Conference

Hr’g Tr., PageID 771-73. Because McNoriell continued to acquiesce to this arrangement and

Graham’s participation at sidebar, Graham did not impede McNoriell’s control over the case or

destroy the jurors’ perception that McNoriell represented himself.

Although we have not addressed the specific issue of standby counsel’s participation at

sidebar conferences, other circuits have found that a pro se defendant’s right to

self-representation is not violated in these circumstances. For example, in United States v. Issac,

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655 F.3d 148, 153 (3d Cir. 2011), standby counsel represented the defendant at sidebar

conferences where the defendant was not permitted to “move about the courtroom.” Because the

defendant did not object to standby counsel’s representation, there was no violation of his right

to self-representation. Id.; see also Lefevre v. Cain, 586 F.3d 349, 355-57 (5th Cir. 2009)

(holding defendant’s right to self-representation was not violated where he did not object to

standby counsel’s representation at sidebar conferences). That reasoning tracks how we have

treated a pro se defendant’s acquiescence to standby counsel’s participation in similar contexts.

For instance, in Hendrickson, standby counsel examined the defendant using the defendant’s

own scripted questions, but standby counsel omitted certain questions from the defendant’s

script, because the defendant previously struggled to answer similar questions and the

government had objected to related lines of questioning. 822 F.3d at 826. We found that the

defendant’s claim of a violation of her right to self-representation was “fatally undercut by the

fact that she acquiesced to standby counsel’s participation” and failed to object to counsel’s

conduct or “seek to retake the stand after consulting with counsel.” Id. at 827-28.

The same reasoning applies here. McNoriell made the knowing decision to represent

himself, and he also clearly informed the court that Graham would convey McNoriell’s views

and objections at sidebar. Under these circumstances, there was no violation of McNoriell’s

right to self-representation.

3.

Although McNoriell concedes that he waived his right to counsel, he also argues that his

“right to be represented during critical stages meant that he, as counsel for the defense, must be

present for all sidebar conferences.” CA6 R. 24, Appellant Br., at 11. But this argument fails.

“The Sixth Amendment guarantees a right to counsel at critical stages of a criminal

proceeding.”

Kennedy v. United States, 756 F.3d 492, 493 (6th Cir. 2014).

Although

“[g]enerally, standby counsel does not satisfy a defendant’s Sixth Amendment right to counsel

. . . [t]here is some support for the proposition that in certain circumstances standby counsel can

satisfy a defendant’s right to counsel if counsel actively and substantially assists the defendant.”

King v. Bobby, 433 F.3d 483, 490 (6th Cir. 2006). Here, with McNoriell’s permission, Graham

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did exactly that, and this arrangement did not somehow undermine McNoriell’s decision to

represent himself. “The defendant must make a choice, and he should not be permitted to

manipulate his choice so that he can claim reversible error on appeal no matter which alternative

he apparently chose in the District Court.” Conder, 423 F.2d at 908.

Relying on our decision in United States v. Minsky, 963 F.2d 870 (6th Cir. 1992),

McNoriell claims that “defense counsel’s exclusion from just one sidebar conference at trial”

can violate the right to representation. CA6 R. 24, Appellant Br., at 13 (citing 963 F.2d at 874).

But the facts of Minsky are inapposite. There, the court conducted an ex parte conference with

the government, without defense counsel present, to review statements relevant to the

defendant’s motion under Brady v. Maryland, 373 U.S. 83 (1963). Minsky, 963 F.2d at 874.

Here, in contrast, McNoriell was physically present at the proceeding and consented to an

arrangement in which Graham represented McNoriell’s interests.

Nothing about that

arrangement violated McNoriell’s Sixth Amendment rights.

4.

In sum, we affirm the district court on this issue. But we take this opportunity to remind

district courts that when a defendant invokes his right to self-representation after being warned of

the risks of doing so, that choice must be honored. Even when afforded standby counsel, the

defendant remains his own attorney, and any adjustments to trial procedures on account of the

defendant’s self-representation should be made and executed with that principle in mind.

Likewise, district courts would do well to consider the potential consequences before

indulging a defendant’s requests for free-wheeling hybrid representation. After all, “there is no

constitutional right to hybrid representation.” Steele, 919 F.3d at 975 (quoting Cromer, 389 F.3d

at 681 n.1). “[W]hether to allow this kind of representation is ‘a matter committed to the sound

discretion of the trial court.’” United States v. Green, 388 F.3d 918, 922-23 (6th Cir. 2004)

(quoting United States v. Mosely, 810 F.2d 93, 98 (6th Cir. 1987)). If a district court exercises its

discretion to allow hybrid representation, the court nonetheless needs to ensure—at each stage of

the trial—that any “substantial participation” by standby counsel is done with the defendant’s

permission. McKaskle, 465 U.S. at 183; see also Faretta, 422 U.S. at 817 (acknowledging that

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“forcing a lawyer upon an unwilling defendant is contrary to his basic right to defend himself if

he truly wants to do so”). And the record should reflect as much. Otherwise, the court risks

allowing the defendant “to manipulate his choice so that he can claim reversible error on appeal

no matter which alternative he apparently chose.” Conder, 423 F.2d at 908.

B.

McNoriell next argues the indictment improperly alleged two separate conspiracies in a

single conspiracy count. He did not make this argument below, so we review for plain error.

United States v. Kakos, 483 F.3d 441, 445 (6th Cir. 2007).

1.

“An indictment is duplicitous if it sets forth separate and distinct crimes in one count.”

United States v. Boyd, 640 F.3d 657, 665 (6th Cir. 2011) (quoting Davis, 306 F.3d at 415).

Offenses are considered duplicitous if “each requires proof of an additional fact that the other

does not.” Davis, 306 F.3d at 416 (citation omitted). But “the allegation, in a single count of

conspiracy, of an agreement to commit several crimes is not duplicitous, as conspiracy is itself

the crime.” United States v. Dale, 178 F.3d 429, 431 (6th Cir. 1999). Thus, “[a] single

conspiracy may have as its objective the distribution of two different drugs without rendering it

duplicitous.”

Id.

Duplicitous indictments are not presumptively invalid; rather, “duplicity

is only reversible if it prejudices the defendant.” See United States v. Singer, 782 F.3d 270,

276 (6th Cir. 2015), abrogated on other grounds by Musacchio v. United States, 577 U.S. 237

(2016).

McNoriell challenges the drug conspiracy charge against him and argues that the

indictment improperly alleged he trafficked cocaine and heroin as “part of one larger

conspiracy.” CA6 R. 24, Appellant Br., at 16. The elements of a drug conspiracy are that (1)

two or more persons conspired, or agreed, to commit a drug crime; and (2) the defendant

knowingly and voluntarily (3) participated in the conspiracy. See United States v. Williams,

998 F.3d 716, 728 (6th Cir. 2021). The indictment here charged McNoriell with conspiracy to

distribute and possess with intent to distribute 500 grams or more of cocaine and heroin. And

like Dale, the government here presented evidence “which supported the distribution of both

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drugs.” Dale, 178 F.3d at 431-32. To illustrate, the evidence showed that McNoriell conspired

with Allen and other couriers to supply Allen with heroin before Allen’s May 15, 2022 arrest and

government cooperation agreement, and that McNoriell conspired with Bogan and Caldwell to

supply Allen with 500 grams or more of cocaine after Allen withdrew from the conspiracy. This

evidence included phone records showing McNoriell sold Allen heroin; recorded phone calls

between McNoriell and Allen arranging the June 2022 cocaine transaction; hotel records

showing McNoriell reserved a room in Lansing as he planned with Allen; McNoriell, Bogan, and

Caldwell’s drive to Lansing with the drugs as planned with Allen; the phone calls between

McNoriell and Allen, and calls between Bogan and Caldwell after police stopped both vehicles;

and testimony from Allen that McNoriell conspired with him and couriers to supply him with

heroin, and with Bogan and Caldwell to supply him with cocaine.

McNoriell argues the government alleged one conspiracy that comprised two “separate

and distinct” conspiracies involving different substances, co-conspirators, and suppliers. CA6

R. 24, Appellee Br., at 16. Beyond showing “the overlap of a single defendant,” he argues, the

government “made no effort to detail a heroin conspiracy or connect it to the cocaine

conspiracy.” Id. at 16-17 (citation omitted). But the government elicited testimony from Allen

that he purchased heroin from McNoriell approximately ten times from 2021 to 2022, McNoriell

had cocaine available for sale before Allen agreed to cooperate with the government, and

McNoriell used couriers to deliver heroin.

A conspiracy is not converted into multiple

conspiracies “simply because each member of the conspiracy did not know every other member,

or because each member did not know of or become involved in all of the activities in

furtherance of the conspiracy.” United States v. Beals, 698 F.3d 248, 259 (6th Cir. 2012)

(citation omitted). There was no duplicity problem here.

2.

Even assuming the indictment was duplicitous, McNoriell cannot show prejudice.

McNoriell argues the indictment infringed on his right to jury unanimity. But “proper jury

instructions can mitigate the risk of jury confusion and alleviate the doubt that would otherwise

exist as to whether all members of the jury had found the defendant guilty of the same offense.”

United States v. Lloyd, 462 F.3d 510, 514 (6th Cir. 2006).

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Here, the district court instructed the jurors that they “should not find Mr. McNoriell

guilty of the conspiracy that is charged in count one of the indictment based on an agreement

between Michael Allen and Mr. McNoriell occurring on or after May 15, 2022”—when Allen

became a DEA cooperator. RE 144, Trial Tr., Vol. III, PageID 1283. But the jurors were

allowed to consider any “agreement between Michael Allen and the defendant before Michael

Allen became a DEA cooperator,” and “any agreement that the defendant may have had with

others after May 15, 2022.” Id. During deliberations, the jurors asked the district court if they

could consider “the evidence of the heroin transaction on May 26th” between McNoriell and

Allen “as evidence in count one since Michael Allen was a [confidential informant] prior to that

day.” Id. at PageID 1332. The district court responded that they “should consider all of the

instructions that [the court] gave . . . earlier” and “consider them together as a whole.” Id.

McNoriell points to this exchange as evidence that “at least one juror believed it

was necessary to rely on an alleged heroin transaction” to find him guilty of a conspiracy to

distribute and possess with intent to distribute both cocaine and heroin. CA6 R. 24, Appellant

Br., at 18-19. But “[j]uries are presumed to follow the instructions they are given.” Davis,

306 F.3d at 416. And the jurors unanimously held McNoriell accountable for 500 grams or more

of cocaine as part of the conspiracy. McNoriell argues “the jury simply filled out the paperwork

provided to it. The jury had no other option.” CA6 R. 37, Reply Br., at 8. But the jurors did

have another option—to vote not guilty. McNoriell cannot show the indictment prejudiced him.

C.

McNoriell also argues the district court erroneously admitted character evidence by

allowing Allen to testify on cross-examination that being with McNoriell put him “in danger”

and then on re-direct that he “could die” by informing on McNoriell. CA6 R. 24, Appellant Br.,

at 23 (quoting RE 143, Trial Tr., Vol. II, PageID 1084, 1108). But Allen’s testimony was neither

improper character evidence nor prejudicial.

As an initial matter, McNoriell did not object to Allen’s testimony as improper character

evidence. Instead, he moved to strike Allen’s testimony on cross-examination as non-responsive

to his pending question. The district court granted McNoriell’s motion and instructed the jury

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“not to consider [Allen’s] unsolicited response.” RE 143, Trial Tr., Vol. II, PageID 1084-85.

Then, when the government elicited similar testimony from Allen on re-direct, McNoriell failed

to object. Because McNoriell did not object to Allen’s testimony on the same grounds he now

raises on appeal, we review for plain error. United States v. Evans, 883 F.2d 496, 499 (6th Cir.

1989). Also, because the district court struck Allen’s testimony on cross-examination, we review

only Allen’s testimony on re-direct. See Davis, 306 F.3d at 416 (“Juries are presumed to follow

the instructions they are given.”). On re-direct, Allen explained that he purchased heroin from

McNoriell during their May 26, 2022 meeting because dealing drugs was “already a dangerous

game,” and if he “deviate[d] from [his] regular routine . . . [he] could die, anything could

happen” because McNoriell might suspect “something ain’t right.” RE 143, Trial Tr., Vol. II,

PageID 1108-09.

The government cannot introduce evidence of a defendant’s character until the defendant

“open[s] the door by offering evidence as to his good character.” United States v. McGuire,

744 F.2d 1197, 1204 (6th Cir. 1984) (citation modified). Here, Allen’s testimony was elicited

not to comment on McNoriell’s character, but rather to explain why Allen purchased heroin from

McNoriell notwithstanding his agreement with the DEA to refrain from committing further

crimes. And his testimony depicted the dangerous nature of drug dealing. To the extent Allen

described McNoriell, he did so to identify McNoriell as a participant in “a dangerous game.”

RE 143, Trial Tr., Vol. II, PageID 1108. The district court did not err, plainly or otherwise, in

allowing this evidence.

But even assuming Allen’s testimony constituted improper character evidence, McNoriell

cannot show prejudice because there was plenty of other evidence of his guilt. See United States

v. Prather, 138 F.4th 963, 972 (6th Cir. 2025) (finding that the defendant could not “surmount

plain-error review” or “show prejudice” from improper character testimony “[g]iven the

overwhelming evidence against [the defendant]”). This evidence included phone records and

texts with Allen arranging the drug deal, evidence of McNoriell’s drive to Lansing with Bogan

and Caldwell, records reserving the Lansing hotel room in McNoriell’s name, and a cooperating

witness’s testimony describing the drug deal.

Admission of Allen’s testimony as to the

dangerous nature of drug dealing was not plain error.

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D.

McNoriell next argues the district court erred by admitting text messages between Bogan

and Caldwell because the statements were hearsay not made in furtherance of the conspiracy.

The district court properly admitted these messages under the co-conspirator hearsay exception.

Where a defendant has preserved the issue on appeal, like here, we review the admission

of evidence by the trial court for abuse of discretion. United States v. Dunnican, 961 F.3d 859,

871 (6th Cir. 2020). “[E]ven if an abuse is found, a new trial is not required unless the

defendant’s ‘substantial rights’ were affected by the admission of the evidence.” United States

v. Munguia, 273 F. App’x 517, 520 (6th Cir. 2008) (citation modified). “[T]he phrase ‘affect

substantial rights’ is generally synonymous with ‘prejudicial,’ which usually means that the error

must have affected the outcome of the district court proceedings.”

Barnett, 398 F.3d at

526 (citation omitted).

A statement is not hearsay if it “was made by the party’s coconspirator during and in

furtherance of the conspiracy.” Fed. R. Evid. 801(d)(2)(E). To admit such statements, the court

must conclude “that: (1) the conspiracy existed; (2) the defendant was a member of the

conspiracy; and (3) the co-conspirator made the proffered statements in furtherance of the

conspiracy.” United States v. Warman, 578 F.3d 320, 335 (6th Cir. 2009). “This three-part test

is often referred to as an Enright finding.” United States v. Wilson, 168 F.3d 916, 920 (6th Cir.

1999) (citing Enright, 579 F.2d at 986-87).

McNoriell seemingly takes issue with two sets of messages. First, McNoriell points to

December 2021 messages from Bogan to Caldwell asking Caldwell to purchase baking soda, “a

small Pyrex and a medium size Pyrex,” a whisk, and paper towels, items that Falletich testified

are used to “process narcotics in multiple variations.” RE 142, Trial Tr., Vol. I, PageID 980,

982. Second, McNoriell points to a January 2022 message from Caldwell to Bogan saying

“I took a big ass risk with my baby and all late at night on the road and still didn’t get paid from

either and use[d] my gas money,” which Falletich understood to mean that Caldwell had worked

for Bogan before as a drug courier. Id. at PageID 982.

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The district court properly admitted the text messages under Enright. 579 F.2d at 986-87.

The government introduced ample evidence showing Bogan, Caldwell, and McNoriell were in a

conspiracy to distribute and possess drugs, satisfying the first two Enright factors. Id. This

evidence included the group’s trip to Lansing with the drugs as planned with Allen, McNoriell’s

reference to a female courier, the phone calls between McNoriell and Allen, and calls between

Bogan and Caldwell after police stopped both vehicles. The texts also satisfied the third Enright

factor because they were made in furtherance of the conspiracy. Id. The texts, sent within the

charged conspiracy’s date range, show Bogan directing Caldwell to purchase materials to

distribute drugs and discussing a previous courier trip.

McNoriell argues these messages “were made as part of a separate conspiracy” in the

“months before the charged conspiracy.” CA6 R. 24, Appellant Br., at 26. But we have long

held that “[w]hen two or more persons are shown to have been engaged in the same unlawful

conspiracy . . . it is not necessary to prove the knowledge by one of the dealings, or even of the

existence, of the others” to “render evidence of the actions of those others admissible against that

person.” Poliafico v. United States, 237 F.2d 97, 104 (6th Cir. 1956). “A single conspiracy is

not converted to multiple conspiracies simply because it can be subdivided, or because there are

changes in the individuals involved or the roles that they play in the conspiracy.” United States

v. Beals, 698 F.3d 248, 259 (6th Cir. 2012) (citation omitted). McNoriell’s argument runs afoul

of these principles.

Moreover, we have found similar co-conspirator statements admissible. For instance, in

United States v. Adamo, 742 F.2d 927 (6th Cir. 1984), abrogated on other grounds by Buford

v. United States, 532 U.S. 59 (2001), we affirmed the admission of statements from an untried

co-conspirator and a testifying co-conspirator regarding the distribution of marijuana that did not

involve the defendant.

742 F.2d at 943.

The statements occurred during the charged

conspiracy’s time frame and were “part and parcel of the general on-going drug conspiracy of

which the appellants were members.” Id. Here, too, the messages between Bogan and Caldwell

were sent during the conspiracy’s time frame and were “part and parcel” of the conspiracy, even

if McNoriell was not involved in the specific transactions discussed.

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

from McNoriell’s co-conspirators.

But even if the district court did abuse its discretion,

McNoriell cannot show his substantial rights were affected because, for the same reasons

described above, the government introduced sufficient independent evidence of McNoriell’s

guilt. See United States v. Young, 553 F.3d 1035, 1047-48 (6th Cir. 2009).

E.

McNoriell argues for the first time on appeal that the district court improperly allowed

Falletich to testify to the significance of recorded communications between McNoriell and Allen.

We review this claim for plain error. See Underwood, 859 F.3d at 394.

When not testifying as an expert, a witness’s “testimony in the form of an opinion is

limited to one that is: (a) rationally based on the witness’s perception; (b) helpful to clearly

understanding the witness’s testimony or to determining a fact in issue; and (c) not based on

scientific, technical, or other specialized knowledge within the scope of [Fed. R. Evid.] 702.”

Fed. R. Evid. 701. “The purpose of lay opinion testimony is to describe something that the

jurors could not otherwise experience for themselves by drawing upon the witness’s sensory and

experiential observations that were made as a first-hand witness to a particular event.” United

States v. Young, 847 F.3d 328, 350 (6th Cir. 2017) (citation modified).

A law enforcement officer may testify as a lay witness about a conversation “only when

the law enforcement officer is a participant in the conversation, has personal knowledge of the

facts being related in the conversation, or observed the conversations as they occurred.” Id.

(quoting United States v. Kilpatrick, 798 F.3d 365, 379 (6th Cir. 2015)). When reviewing a

challenge to law enforcement testimony interpreting “ordinary English” from recorded phone

calls, courts consider “whether the officer testified based on specific personal experience and

whether the jury was unequipped to arrive at the same opinions and conclusions.” United States

v. Reed, 163 F.4th 338, 357 (6th Cir. 2025) (citation modified). As to the first factor, “direct

involvement in an investigation and specifically with the interpreted conversations may be

sufficient to establish personal experience.” Id. And as to the second, an officer cannot “divine

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what vague, plain English language means,” because “[t]hese types of conclusions are the

province of a jury.” United States v. Freeman, 730 F.3d 590, 598 (6th Cir. 2013).

Here, Falletich did not merely interpret plain English but assisted “the jury in

understanding from a percipient witness’[s] point of view what the communications signaled to

law enforcement.”

Reed, 163 F.4th at 358.

Considering that Falletich listened to the

conversations as they happened and directed Allen’s responses, Falletich permissibly testified to

his “personal knowledge of the facts being related in the conversation.” Kilpatrick, 798 F.3d

at 379 (citation omitted).

McNoriell cites Freeman in support of his argument that the district court erred in

allowing Falletich to testify as a lay witness. But Freeman does not help McNoriell. There, an

FBI agent testified to his interpretations of recorded phone calls with the defendant without

explaining how he reached his conclusions, based only “on the general knowledge of the FBI and

the investigation as a whole.” Freeman, 730 F.3d at 596. Unlike Falletich, the agent “did not

testify to being present for the surveillance [that led to these calls], or even to observing any

activity relevant to interpreting the calls.” Id. at 597. McNoriell cannot show any error here,

much less plain error.

F.

Finally, McNoriell argues the district court erred at sentencing when it applied a

leadership enhancement under U.S.S.G. §3B1.1(c). “We review a sentence’s reasonableness for

abuse of discretion,” the supporting factual findings for clear error, “and the conclusion that a

person is an organizer or leader under [§]3B1.1 deferentially.” Reed, 163 F.4th at 369. “Under

the clear-error standard, we abide by the court’s findings of fact unless the record leaves us with

the definite and firm conviction that a mistake has been committed.” United States v. Sexton,

894 F.3d 787, 794 (6th Cir. 2018) (citation omitted).

The guidelines provide for a two-level leadership enhancement if “the defendant was an

organizer, leader, manager, or supervisor in any criminal activity.” U.S.S.G. §3B1.1(c). In

making this determination, the court considers factors such as the defendant’s “exercise of

decision-making authority,” “recruitment of accomplices,” “the degree of participation in

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planning or organizing the offense,” and “the degree of control and authority exercised over

others.” Id. §3B1.1(c) cmt. 4. But “[a] district court need not find each factor in order to warrant

an enhancement.” United States v. Castilla-Lugo, 699 F.3d 454, 460 (6th Cir. 2012). “[T]he

enhancement is not appropriate when the individual acted merely as a ‘middleman’ or as a

supplier,” but “the enhancement is proper when the defendant’s actions exceed those of a

middleman or supplier, such as when a drug dealer takes an active role in directing the delivery

of the cocaine.” United States v. Watson, 117 F.3d 1421, at *5 (6th Cir. 1997) (per curiam)

(unpublished table decision).

We have found that a defendant takes an “active role in directing” a drug deal when he

coordinates with others to complete the transaction. For instance, in United States v. Munoz,

233 F.3d 410 (6th Cir. 2000), we upheld a leadership enhancement where the defendant “worked

out the [drug] deal with the informant, made arrangements for the courier to deliver the drugs,”

“was in repeated contact with the informant[,] and played a role in coordinating both the delivery

of and payment for the [drugs].” 223 F.3d at 416. Likewise, in United States v. Minter, 80 F.4th

753 (6th Cir. 2023), we affirmed the district court’s application of a leadership enhancement

where the defendant determined “where and when to meet . . . to deliver the drugs,” had

“consistent, repeated contact with the couriers throughout the conspiracy,” and received a larger

payment than his co-conspirators for the transaction. 80 F.4th at 758-59.

Here, as in those cases, McNoriell’s actions exceeded those of a middleman.

He

organized the June 2022 cocaine deal by coordinating with Bogan and Caldwell to transport the

drugs; setting the location and manner of the transaction (when he directed Allen to meet him in

the Lansing hotel room); engaging in consistent contact with the couriers throughout the

conspiracy; and driving with Bogan and Caldwell to Lansing. Under these facts, the district

court did not abuse its discretion or clearly err in applying the two-level leadership enhancement.

III.

For these reasons, we affirm the district court’s judgment.

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UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

No. 24-2067

UNITED STATES OF AMERICA,

FILED

Plaintiff - Appellee,

Apr 06, 2026

v.

.(//</67(3+(16 Clerk

JOSEPH MICHAEL MCNORIELL,

Defendant - Appellant.

Before: BATCHELDER, CLAY, and RITZ, Circuit Judges.

JUDGMENT

On Appeal from the United States District Court

for the Western District of Michigan at Grand Rapids.

THIS CAUSE was heard on the record from the district court and was argued by counsel.

IN CONSIDERATION THEREOF, it is ORDERED that the judgment of the district court is

AFFIRMED.

ENTERED BY ORDER OF THE COURT

Kelly L. Stephens, Clerk

[22]

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Case 1:23-cr-00064-JMB

ECF No. 189, PageID.1580

Filed 11/26/24

Page 1 of 7

AO 245B (MIWD Rev. 12/16)- Judgment in a Criminal Case

UNITED STATES DISTRICT COURT

Western District of Michigan

UNITED STATES OF AMERICA

JUDGMENT IN A CRIMINAL CASE

-vsCase Number: 1:23-cr-64

JOSEPH MICHAEL MCNORIELL

USM Number: 28872-039

James R. Gerometta

Defendant’s Attorney

THE DEFENDANT:

‫܆‬

‫܆‬

‫܈‬

pleaded guilty to Count(s) _______.

pleaded nolo contendere to Count(s) _______ , which was accepted by the court.

was found guilty on Counts One and Two of the Indictment after a plea of not guilty.

The defendant is adjudicated guilty of these offenses:

Offense Ended

Title & Section

21 U.S.C. §§ 846, 841(a)(1), (b)(1)(B)(ii) and (b)(1)(C)

June 2, 2022

Conspiracy to Distribute and Possess with Intent to Distribute Controlled Substances

Count

One

21 U.S.C. §§ 841(a)(1), (b)(1)(B)(ii) and 2

Possession with Intent to Distribute 500 Grams or More of Cocaine

Two

June 2, 2022

The defendant is sentenced as provided in the following pages of this judgment. The sentence is imposed

pursuant to the Sentencing Reform Act of 1984.

IT IS ORDERED that the defendant must notify the United States attorney for this district within 30 days of any

change of name, residence, or mailing address until all fines, restitution, costs, and special assessments

imposed by this judgment are fully paid. If ordered to pay restitution, the defendant must notify the court and the

United States attorney of material changes in economic circumstances.

Date of Imposition of Sentence: November 26, 2024

Dated: November 26, 2024

/s/ Jane M. Beckering

JANE M. BECKERING

UNITED STATES DISTRICT JUDGE

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AO 245B (MIWD Rev. 12/16)- Judgment in a Criminal Case

Judgment – Page 2

Defendant: JOSEPH MICHAEL MCNORIELL

Case Number: 1:23-cr-64

IMPRISONMENT

The defendant is hereby committed to the custody of the Federal Bureau of Prisons to be imprisoned for a total

term of ONE HUNDRED TEN (110) MONTHS as to each of Counts One and Two, to run concurrently.

‫܈‬

The court makes the following recommendations to the Bureau of Prisons:

1. that the defendant be designated to FCI Milan in Milan, Michigan; and

2. that the defendant be screened for the 500-hour Residential Drug Abuse Program and be permitted to

participate in the program if deemed qualified.

‫܈‬

‫܆‬

The defendant is remanded to the custody of the United States Marshal.

The defendant shall surrender to the United States Marshal for this district:

‫ ܆‬at _______ on _______

‫ ܆‬as notified by the United States Marshal.

‫܆‬

The defendant shall surrender for service of sentence at the institution designated by the Bureau of Prisons:

‫ ܆‬before 2:00 P.M. on _______

‫ ܆‬as notified by the United States Marshal.

‫ ܆‬as notified by the Probation or Pretrial Services Office.

RETURN

I have executed this judgment as follows:

Defendant delivered on

at

to

, with a certified copy of this judgment.

United States Marshal

By:

Deputy United States Marshal

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AO 245B (MIWD Rev. 12/16)- Judgment in a Criminal Case

Judgment – Page 3

Defendant: JOSEPH MICHAEL MCNORIELL

Case Number: 1:23-cr-64

SUPERVISED RELEASE

Upon release from imprisonment, the defendant shall be placed on supervised release for a term of FOUR (4)

YEARS as to each of Counts One and Two, to be served concurrently.

MANDATORY CONDITIONS

1. You must not commit another federal, state, or local crime.

2. You must not unlawfully possess a controlled substance.

3. You must refrain from any unlawful use of a controlled substance. You must submit to one drug test within

15 days of release from imprisonment and at least two periodic drug tests thereafter, as determined by the

court.

‫ ܆‬The above drug testing condition is suspended, based on the court’s determination that you pose

a low risk of future substance abuse. (check if applicable)

4. ‫ ܈‬You must cooperate in the collection of DNA as directed by the probation officer.

5. ‫ ܆‬You must comply with the requirements of the Sex Offender Registration and Notification Act (34 U.S.C.

§ 20901, et seq.) as directed by the probation officer, the Bureau of Prisons, or any state sex offender

registration agency in the location where you reside, work, are a student, or were convicted of a qualifying

offense. (check if applicable)

6. ‫ ܆‬You must participate in an approved program for domestic violence. (check if applicable)

7. ‫ ܆‬You must make restitution in accordance with 18 U.S.C. §§ 3663 and 3663A or any other statute

authorizing a sentence of restitution. (check if applicable)

You must comply with the standard conditions that have been adopted by this court as well as with any other

conditions on the attached page.

[25]

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Judgment – Page 4

Defendant: JOSEPH MICHAEL MCNORIELL

Case Number: 1:23-cr-64

STANDARD CONDITIONS OF SUPERVISION

As part of your supervised release, you must comply with the following standard conditions of supervision. These conditions

are imposed because they establish the basic expectations for your behavior while on supervision and identify the minimum

tools needed by probation officers to keep informed, report to the court about, and bring about improvements in your conduct

and condition.

1. You must report to the probation office in the federal judicial district where you are authorized to reside within 72 hours

of your release from imprisonment, unless the probation officer instructs you to report to a different probation office or

within a different time frame.

2. After initially reporting to the probation office, you will receive instructions from the court or the probation officer about

how and when you must report to the probation officer, and you must report to the probation officer as instructed.

3. You must not knowingly leave the federal judicial district where you are authorized to reside without first getting

permission from the Court or the probation officer.

4. You must answer truthfully the questions asked by your probation officer.

5. You must live at a place approved by the probation officer. If you plan to change where you live or anything about your

living arrangements (such as the people you live with), you must notify the probation officer at least 10 days before the

change. If notifying the probation officer in advance is not possible due to unanticipated circumstances, you must notify

the probation officer within 72 hours of becoming aware of a change or expected change.

6. You must allow the probation officer to visit you at any time at your home or elsewhere, and you must permit the

probation officer to take any items prohibited by the conditions of your supervision that he or she observes in plain view.

7. You must work full time (at least 30 hours per week) at a lawful type of employment, unless the probation officer excuses

you from doing so. If you do not have full-time employment you must try to find full-time employment, unless the

probation officer excuses you from doing so. If you plan to change where you work or anything about your work (such

as your position or your job responsibilities), you must notify the probation officer at least 10 days before the change. If

notifying the probation officer at least 10 days in advance is not possible due to unanticipated circumstances, you must

notify the probation officer within 72 hours of becoming aware of a change or expected change.

8. You must not communicate or interact with someone you know is engaged in criminal activity. If you know someone

has been convicted of a felony, you must not knowingly communicate or interact with that person without first getting

the permission of the probation officer.

9. If you are arrested or questioned by a law enforcement officer, you must notify the probation officer within 72 hours.

10. You must not own, possess, or have access to a firearm, ammunition, destructive device, or dangerous weapon (i.e.,

anything that was designed, or was modified for the specific purpose of causing bodily injury or death to another person

such as nunchakus or tasers).

11. You must not act or make any agreement with a law enforcement agency to act as a confidential human source or

informant without first getting the permission of the court.

12. If the probation officer determines that you pose a risk to another person (including an organization), the probation

officer may require you to notify the person about the risk and you must comply with that instruction. The probation

officer may contact the person and confirm that you have notified the person about the risk.

13. You must follow the instructions of the probation officer related to the conditions of supervision.

U.S. Probation Office Use Only

A U.S. probation officer has instructed me on the conditions specified by the court and has provided me with a written copy

of this judgment containing these conditions. For further information regarding these conditions, see Overview of Probation

and Supervised Release Conditions, available at www.uscourts.gov.

Defendant’s Signature

Date

[26]

Case 1:23-cr-00064-JMB

ECF No. 189, PageID.1584

Filed 11/26/24

Page 5 of 7

AO 245B (MIWD Rev. 12/16)- Judgment in a Criminal Case

Judgment – Page 5

Defendant: JOSEPH MICHAEL MCNORIELL

Case Number: 1:23-cr-64

SPECIAL CONDITIONS OF SUPERVISION

1. You must participate in a program of testing and treatment for substance abuse, as directed by the probation officer,

and follow the rules and regulations of that program until such time as you are released from the program by the

probation officer, and must pay at least a portion of the cost according to your ability, as determined by the probation

officer.

2. You must not knowingly purchase, possess, distribute, administer, or otherwise use any psychoactive substances

or paraphernalia related to any controlled substance (e.g., synthetic marijuana, bath salts, etc.) that impair a

person's physical or mental functioning, whether or not intended for human consumption.

3. You must not use or possess any controlled substances without a valid prescription. If you have a valid prescription,

you must follow the instructions on the prescription. You must not possess, use, or sell marijuana or any marijuana

derivative (including any product containing cannabidiol (CBD) or THC) in any form (including edibles) or for any

purpose (including medical purposes). You are also prohibited from entering any marijuana dispensary or grow

facility.

4. You must provide the probation officer with access to any requested financial information and authorize the release

of any financial information. The probation office will share financial information with the U.S. Attorney’s Office.

5. You must not apply for, nor enter into, any loan or other credit transaction without the approval of the probation

officer.

6. You must submit your person, property, house, residence, vehicle, papers, computers (as defined in 18 U.S.C.

§ 1030(e)(1)), other electronic communications or data storage devices or media, or office, to a search conducted

by a United States probation officer. Failure to submit to a search may be grounds for revocation of release. You

must warn any other occupants that the premises may be subject to searches pursuant to this condition.

The probation officer may conduct a search under this condition only when reasonable suspicion exists that you

have violated a condition of supervision and that the areas to be searched contain evidence of this violation. Any

search must be conducted at a reasonable time and in a reasonable manner.

[27]

Case 1:23-cr-00064-JMB

ECF No. 189, PageID.1585

Filed 11/26/24

Page 6 of 7

AO 245B (MIWD Rev. 12/16)- Judgment in a Criminal Case

Judgment – Page 6

Defendant: JOSEPH MICHAEL MCNORIELL

Case Number: 1:23-cr-64

CRIMINAL MONETARY PENALTIES

The defendant must pay the total criminal monetary penalties under the Schedule of Payments on the following

pages.

Fine

Restitution

AVAA Assessment*

JVTA Assessment**

$200.00

$500.00

-0-

-0-

-0-

($100.00 per count)

($250.00 per count)

Assessment

‫ ܆‬The determination of restitution is deferred until _______. An Amended Judgment in a Criminal Case

(AO 245C) will be entered after such a determination.

‫ ܆‬The defendant must make restitution (including community restitution) to the following payees in the

amount listed below.

If the defendant makes a partial payment, each payee shall receive an approximately proportioned payment,

unless specified otherwise in the priority order or percentage payment column below. However, pursuant to 18

U.S.C. § 3664(i), all nonfederal victims must be paid before the United States is paid.

Name of Payee

Total Loss***

Restitution Ordered

TOTALS

$ 0.00

$ 0.00

Priority or Percentage

‫ ܆‬Restitution amount ordered pursuant to plea agreement.

‫ ܆‬The defendant must pay interest on restitution and a fine of more than $2,500, unless the restitution or

fine is paid in full before the fifteenth day after the date of the judgment, pursuant to 18 U.S.C. § 3612(f).

All of the payment options on Sheet 6 may be subject to penalties for delinquency and default, pursuant

to 18 U.S.C. § 3612(g).

‫ ܈‬The court determined that the defendant does not have the ability to pay interest and it is ordered that:

‫ ܈‬the interest requirement is waived for the fine.

‫ ܆‬the interest requirement is waived for the restitution.

‫ ܆‬the interest requirement for the fine is modified as follows: __________

‫ ܆‬the interest requirement for the restitution is modified as follows: __________



* Amy, Vicky, and Andy Child Pornography Victim Assistance Act of 2018, Pub. L. No. 115-299.

** Justice for Victims of Trafficking Act of 2015, Pub. L. No. 114-22.

*** Findings for the total amount of losses are required under Chapters 109A, 110, 110A, and 113A of Title 18 for offenses committed on

or after September 13, 1994, but before April 23, 1996.

[28]

Case 1:23-cr-00064-JMB

ECF No. 189, PageID.1586

Filed 11/26/24

Page 7 of 7

AO 245B (MIWD Rev. 12/16)- Judgment in a Criminal Case

Judgment – Page 7

Defendant: JOSEPH MICHAEL MCNORIELL

Case Number: 1:23-cr-64

SCHEDULE OF PAYMENTS

Having assessed the defendant’s ability to pay, payment of the total criminal monetary penalties is due as follows:

A

‫ ܈‬Lump sum payment of $200.00 due immediately, balance due

‫ ܆‬not later than ________, or

‫ ܈‬in accordance with ‫ ܆‬C, ‫ ܆‬D, ‫ ܆‬E, or ‫ ܈‬F below; or

B

‫ ܆‬Payment to begin immediately (may be combined with C, D, or F below); or

C

‫ ܆‬Payment in equal ________ installments of $________ over a period of ________, to commence ________

after the date of this judgment; or

D

‫ ܆‬Payment in equal ________ installments of $________ over a period of ________, to commence ________

after release from imprisonment to a term of supervision; or

E

‫ ܆‬Payment during the term of supervised release will commence within ________ after release from imprisonment.

The court will set the payment plan based on an assessment of the defendant’s ability to pay at that time; or

F

‫ ܈‬Special instructions regarding the payment of criminal monetary penalties:

Any balance due upon incarceration must be paid in minimum quarterly installments of $25.00 based on IFRP

participation, or minimum monthly installments of $20.00 based on UNICOR earnings, during the period of

incarceration, to commence 60 days after the date of this judgment. Any balance due upon commencement of

supervision must be paid, during the term of supervision, in minimum monthly installments of $50.00, to

commence 60 days after release from imprisonment. The defendant must apply all monies received from

income tax refunds, lottery winnings, judgments, and/or any other anticipated or unexpected financial gains to

any outstanding court-ordered financial obligations.

Unless the court has expressly ordered otherwise in the special instructions above, if this judgment imposes imprisonment,

payment of criminal monetary penalties is due during the period of imprisonment. All criminal monetary penalties, except

those payments made through the Federal Bureau of Prisons’ Inmate Financial Responsibility Program, are made to the

Clerk of the Court, 399 Federal Building, 110 Michigan N.W., Grand Rapids, MI 49503, unless otherwise directed by the

court, the probation officer, or the United States Attorney.

The defendant shall receive credit for all payments previously made toward any criminal monetary penalties imposed.

‫ ܆‬Joint and Several

Case Number

Defendant and Co-Defendant Names

(including defendant number)

Total Amount

Joint and Several

Amount

Corresponding Payee,

if appropriate

‫ ܆‬The defendant shall pay the cost of prosecution.

‫ ܆‬The defendant shall pay the following court cost(s):

‫ ܆‬The defendant shall forfeit the defendant’s interest in the following property to the United States:

Payments shall be applied in the following order: (1) assessment, (2) restitution principal, (3) restitution interest, (4) AVAA assessment,

(5) fine principal, (6) fine interest, (7) community restitution, (8) JVTA assessment, (9) penalties, and (10) costs, including cost of

prosecution and court costs.

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