United States v. Karl White, Jr. ( 2009 )

RECOMMENDED FOR FULL-TEXT PUBLICATION
Pursuant to Sixth Circuit Rule 206
File Name: 09a0151p.06
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
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Plaintiff-Appellee, -
UNITED STATES OF AMERICA,
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No. 07-2404
v.
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Defendant-Appellant. -
KARL A. WHITE, JR.,
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Appeal from the United States District Court
for the Western District of Michigan at Grand Rapids.
No. 07-00029-001—Robert Holmes Bell, District Judge.
Argued: March 6, 2009
Decided and Filed: April 16, 2009
Before: KENNEDY, MARTIN, and COLE, Circuit Judges.
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COUNSEL
ARGUED: Martin J. Beres, LAW OFFICES OF MARTIN J. BERES, Clinton Township,
Michigan, for Appellant. Matthew G. Borgula, UNITED STATES ATTORNEY, Grand
Rapids, Michigan, for Appellee. ON BRIEF: Martin J. Beres, LAW OFFICES OF
MARTIN J. BERES, Clinton Township, Michigan, for Appellant. Jennifer L. McManus,
UNITED STATES ATTORNEY, Grand Rapids, Michigan, for Appellee.
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OPINION
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KENNEDY, Circuit Judge. Defendant Karl Alan White, Jr. received a life sentence
for conspiracy to distribute crack and powder cocaine following a jury trial. All told, the
jury found White guilty on seven counts: Count One, conspiracy to distribute cocaine and
cocaine base (“crack cocaine”); Counts Two and Five, possession of cocaine base with the
intent to distribute; Count Three, carrying a firearm during and in relation to a drug
trafficking crime; Counts Four and Six, felon in possession of a firearm; and Count Seven,
1
No. 07-2404 United States v. White Page 2
possession of cocaine with the intent to distribute. On appeal, White argues that he was
denied a fair trial as a result of erroneous discovery rulings, erroneous evidentiary rulings,
and prosecutorial misconduct, and that the district court erred sentencing him to life in
prison. For the following reasons, we affirm White’s convictions but reverse his sentence
and remand to the district court for re-sentencing in accordance with this opinion.
BACKGROUND
The jury convicted White of participating in a drug conspiracy from 2003 to 2007
in the area of Kalamazoo, Michigan. Much of the evidence of the conspiracy arose out of
four specific incidents: (1) the November 21, 2003 traffic stop; (2) the December 28, 2004
traffic stop; (3) the January 1, 2006 search; and (4) the January 22, 2007 drug bust. The
government also presented more general evidence of White’s drug dealing.
A. November 21, 2003 Traffic Stop
On November 21, 2003, a Kalamazoo police officer stopped a Cadillac Escalade
driven by White with a person named Shaquann Branson in the front passenger seat.
Branson had crack cocaine on his person which the police discovered. Branson was charged
and convicted in state court. The police also searched the vehicle and discovered a loaded
Heckler & Koch .40 S&W Caliber semiautomatic pistol and 19.94 grams of crack cocaine
in a sock underneath the driver’s seat. Count Two arises from the discovery of the crack,
and Counts Three and Four arise from the discovery of the gun.
At trial, Branson testified that, in addition to their friendship, White dealt him drugs.
Branson started off buying small amounts of crack from White, but by 2005, he was
purchasing from White a kilogram of powder cocaine per week, at times, for around
$20,000. He purchased from White in this amount during 2005. Branson’s girlfriend,
Danyelle Sanders, corroborated his testimony by testifying herself to the fact that she
accompanied Branson to purchase drugs from White during 2005 and 2006. Branson also
testified to White’s lavish lifestyle that included a number of expensive vehicles.
No. 07-2404 United States v. White Page 3
B. December 28, 2004 Traffic Stop
On December 28, 2004, after observing a Buick LeSabre involved in a suspected
drug deal, a Kalamazoo police officer stopped the LeSabre which was driven by Sharmeka
Williams with White in the front passenger seat. On White’s person, police found $8,350
in cash. After conducting a search of the vehicle, police found, inside of a duffel bag, rubber
bands, a digital scale, and a container with a false bottom which housed 87 grams of crack
cocaine. Count Five, possession of crack cocaine with the intent to distribute, arises out of
this discovery of drugs.
White explained to officers at the scene that he had such a large sum of money on
him in cash because he was a rapper that had several recordings and performed frequently
with known artists. At trial, White testified that his only income came from being an
unsigned rap artist who sold tracks to other artists, roofing and landscape jobs, and financial
aid for college.
Williams testified at trial that she had a relationship with a man named “Tay” with
whom she would sometimes swap cars. She would drive his white Mercedes and he would
drive her Buick. This suggested that the duffel bag found in the Buick was Tay’s, not
White’s. When asked who might have seen her driving the white Mercedes, Williams stated
that Leniya Stafford may have seen her. The prosecution called Stafford in rebuttal, and she
testified that she did not know Tay nor had she ever seen Williams driving a white Mercedes.
C. January 1, 2006 Search
On January 1, 2006, a Kalamazoo police officer observed White and Branson leaving
the scene of a shooting at a Days Inn. That officer radioed his observation to other officers.
Another officer drove to the apartment of Leniya Stafford, White’s girlfriend and the mother
of their child. White was at Stafford’s apartment. Stafford consented to a search of her
apartment, whereupon the officer found a loaded Hi-Point Model C9, 9mm semiautomatic
pistol in the child’s bedroom where White often slept. Count Six, felon in possession of a
firearm, comes from the discovery of that gun.
Stafford testified in front of a grand jury and at trial that White put the gun in the
dresser drawer where the police discovered it and that White dealt drugs. At a bond
No. 07-2404 United States v. White Page 4
revocation hearing prior to trial, Stafford recanted her grand jury testimony and testified that
she did not know where the gun came from. When asked about her grand jury testimony at
trial, she explained that she feared White because he had threatened, choked, and beat her
on multiple occasions. Stafford testified that on one such instance, White took Stafford to
Don Sappanos, a lawyer, who had arranged for a polygraph to be administered to determine
if Stafford had spoken with the Drug Enforcement Agency (“DEA”) about White. Bernard
Wogoman also testified that White attempted to contract him to blow up Stafford’s garage
and car.
D. January 22, 2007 Drug Bust
On January 22, 2007, the DEA arrested Kristinea Vaughn in a drug bust. In the
weeks preceding the drug bust, the DEA recorded a series of conversations between White
and Larry Tillman, a government informant, which set up the exchange of two kilograms of
cocaine for $38,000. At trial, the prosecution introduced taped conversations between
Tillman and White that occurred prior to and during the drug transaction at trial. In these
conversations, they agreed to meet at a Cracker Barrel in Kalamazoo, but before the deal
happened, White told Tillman that he would send a girl instead. White sent Vaughn to meet
with Tillman. When the police arrested Vaughn, she was on the phone with White.
Tillman had pleaded guilty to conspiracy to distribute cocaine after police discovered
four kilograms of cocaine in his car. He agreed to participate in a sting of White with whom
he had a longstanding relationship with as a friend and a person from whom he had bought
drugs and to whom he had sold drugs. Tillman testified that from 2003 to 2005, he bought
approximately a quarter of a kilogram per week of powder cocaine for between $5,000 and
$6,000. In 2005, Tillman had found a cheaper supplier and began to sell to White, in 2005,
in the amount of five kilograms for $96,000 on a regular basis. Over a six month period,
Tillman sold White $600,000 worth of cocaine. He also testified to White’s lavish lifestyle
which included a number of cars and up to $400,000 in cash on his person.
No. 07-2404 United States v. White Page 5
ANALYSIS
I. Discovery
White argues that the district court erred in permitting expert testimony from Officers
Bagley and Vanderklok regarding tools of the drug trade. Bagley stopped White on
November 21, 2003, and Vanderklok stopped White on December 28, 2004. They both
testified to tools of the drug trade with regards to the characteristics of the evidence found
during their respective stops of White. Rule 16 of the Federal Rules of Criminal Procedure
requires that “the government must give to the defendant a written summary of any
testimony that the government intends to use under Rules 702, 703, or 705 of the Federal
Rules of Evidence during its case-in-chief at trial.” The government did not provide notice
of either officer’s expert testimony. We review the district court’s discovery ruling for abuse
of discretion. United States v. Quinn, 230 F.3d 862, 866 (6th Cir. 2000).
This argument fails because White has not shown prejudice, as testimony regarding
tools of the trade has become utterly routine in drug distribution cases, particularly when we
review the district court’s ruling for abuse of discretion. See id. (arguing that “it is difficult
to imagine that [the defendant’s] counsel, an experienced attorney, would fail to realize that
the government would offer testimony that the amount of crack cocaine found in [the
defendant’s] car was more consistent with distribution than with possession for personal
use”); see also United States v. Thomas, 99 F. App’x 665, 669 (6th Cir. 2004) (unpublished)
(citing favorably other circuits for the proposition that “[m]ost courts have taken a very
tolerant view of the admissibility of expert testimony linking the presence of firearms to drug
trafficking activities”); United States v. Ortega, 150 F.3d 937, 943 (8th Cir. 1998) (noting
that expert evidence explaining “drug-related activities and paraphernalia” has become
“routine in drug cases and has been approved in [the Eighth] [C]ircuit” such that the district
court did not abuse its discretion in allowing such expert evidence without proper disclosure
by the government).
Two circumstances buttress the conclusion of lack of prejudice here: (1) White’s
counsel did not ask for a continuance; and (2) White’s counsel did not object to the
qualifications of the police officers to testify on these issues. In Quinn, we emphasized that
a request for a continuance would have suggested that White could have “discredited [the
No. 07-2404 United States v. White Page 6
officers’] testimony.” 230 F.3d at 866. White’s failure to request a continuance suggests his
inability to demonstrate that the lack of notice prejudiced his case. Id. Similarly, White
never claimed that either officer was unqualified to testify about the tools of the drug trade.
During Officer Vanderklok’s testimony, White’s counsel objected for lack of notice, but
never suggested that either Officer Vanderklok or Officer Bagley was unqualified to testify
on the topic. The district court noted this by stating in response to White’s counsel’s
objection that “[t]he jury gives [the expert testimony] whatever weight they believe it
deserves.” In other words, the “surprise” expert testimony of the officers neither left White
without recourse to ask for a continuance, nor did it allow un-expert or unreliable
information to be placed before the jury. Thus, White has no argument that he was
prejudiced.
II. Evidence
We review district court evidentiary rulings for abuse of discretion. United States
v. Wagner, 382 F.3d 598, 616 (6th Cir. 2004). “Broad discretion is given to district courts
in determinations of admissibility based on considerations of relevance and prejudice, and
those decisions will not be lightly overruled.” Id. (quoting United States v. Jackson-
Randolph, 282 F.3d 369, 376 (6th Cir. 2002)). “Relevant evidence means having any
tendency to make the existence of any fact that is of consequence to the determination of the
action more probable or less probable than it would be without the evidence.” Id. (quoting
Fed. R. Evid. 401) (internal quotations marks omitted).
A. Spoliation
White argues that the district court erred in allowing testimony that Sappanos, a
lawyer, assisted White with the obstruction of justice. However, White, in his brief, never
identifies why the district court erred in admitting this evidence. Evidence that White
attempted to obstruct justice with the help of Sappanos by giving Stafford a polygraph test
to see if she snitched on him to the government is admissible to show “consciousness of
guilt.” United States v. Mendez-Ortiz, 810 F.2d 76, 79 (6th Cir. 1986).
The evidence that White beat Stafford was admissible to explain Stafford’s prior
inconsistent testimony. United States v. Smith, 139 F. App’x 681, 686 (6th Cir. 2005)
No. 07-2404 United States v. White Page 7
(unpublished) (citing United States v. Maddox, 944 F.2d 1223, 1229-30 (6th Cir. 1991)).
Stafford testified at trial that White choked her after she spoke with the DEA after the
January 1, 2006 gun incident in which she told police that a gun found in her home belonged
to White. He also told her to refrain from speaking to law enforcement about drugs, set her
clothes on fire, threatened her, and beat her on multiple other occasions, once while she was
pregnant, and on another occasion so severely that White inflicted permanent damage to
Stafford’s right eye. In front of the grand jury, Stafford testified that the gun found in her
home was Stafford’s, and she also testified to White’s other drug trafficking activities. At
the bond revocation hearing, Stafford recanted her testimony and said that she lied to the
grand jury. Stafford testified at trial consistent with her grand jury testimony, explaining that
she recanted her testimony because she feared White. The district court did not err in
admitting Stafford’s testimony of the beatings to allow her to explain why her testimony
changed. Maddox, 944 F.2d at 1229-30 (allowing a witness to retake the stand and give new
testimony that corrected prior testimony with the explanation that she felt threatened when
she perceived that the defendant had mouthed “you’re dead” to her while she was on the
stand).
B. Direct Evidence of Criminal Activity
White argues that testimony that Sappanos gave White advice on avoiding law
enforcement detection was admitted in error. But Sappanos’s suggestion that White
publicize himself as a rap artist and avoid the use of Nextel phones explains how White went
about conducting his drug trafficking business. White was on trial for a drug trafficking
conspiracy offense. Therefore, the evidence explaining the way White went about
conducting his drug trafficking business to avoid detection was direct evidence of the intent
to further a drug trafficking conspiracy that makes his behavior a crime. At the very least,
the failure of White to object to the evidence pertaining to the avoidance of law enforcement
detection relegates our review to that of plain error, which White cannot demonstrate.
The district court did not abuse its discretion in allowing testimony that White
carried firearms on his person for the same reasons. White was charged with two counts of
felon in possession of a firearm and one count of carrying a firearm during a drug trafficking
crime. The testimony then was direct evidence that White committed crimes for which he
No. 07-2404 United States v. White Page 8
was charged. In addition, “[e]vidence of weapons, including firearms, is relevant to proving
intent or a conspiracy to distribute drugs.” United States v. Wheaton, 517 F.3d 350, 364 (6th
Cir. 2008) (quoting United States v. Randolph, No. 97-5990, 173 F.3d 857, 1999 WL 98564,
at *4 (6th Cir. Jan. 27, 1999)).
Finally, the district court did not permit the use of extrinsic evidence to impeach a
witness on an irrelevant collateral matter in error when it allowed the government, in
rebuttal, to impeach Sharmeka Williams’s testimony with testimony from Leniya Stafford.
Cf. United States v. Markarian, 967 F.2d 1098, 1102 (6th Cir. 1992). On December 28,
2004, the police stopped a Buick and found drugs and tools of the drug trade in a duffel bag.
Williams suggested that the bag belonged to a man named Tay with whom she often
swapped cars. He would drive her Buick and she would drive his white Mercedes. When
asked if anyone had seen her drive the white Mercedes, Williams stated that “it [was]
possible” that Stafford had. The government called Stafford to the stand in rebuttal to refute
this story. Whether Tay and Williams swapped cars went directly to the question of whether
the duffel bag found in the car belonged to Tay or to White. The matter at issue was not an
irrelevant collateral matter; rather, it bore directly on White’s guilt.
III. Prosecutorial Misconduct
We review prosecutorial misconduct for abuse of discretion. United States v. Rose,
522 F.3d 710, 715 (6th Cir. 2008). First, we must determine if the prosecutor’s behavior was
improper. Id. at 716. If so, “we must determine if the [prosecutor’s] remarks were flagrant
and warrant reversal.” Id. (quoting United States v. Galloway, 316 F.3d 624, 632 (6th Cir.
2003)) (internal quotation marks omitted). To determine the flagrancy of the prosecutor’s
remarks, we look at “(1) whether the statements tended to mislead the jury and prejudice the
defendant; (2) whether the statements were isolated or pervasive; (3) whether the statements
were deliberately placed before the jury; and (4) whether the evidence against the accused
is otherwise strong.” Id. (quoting Galloway, 316 F.3d at 632).
White argues that the prosecutor acted improperly in conducting a highly prejudicial
cross examination of him at trial. True, the cross-examination was argumentative and
contentious. The prosecutor did interrupt White on multiple occasions, but White for his part
failed to answer questions posed to him and also answered questions with questions or
No. 07-2404 United States v. White Page 9
arguments. White points us to Boyle v. Million, 201 F.3d 711 (6th Cir. 2000), for the
proposition that “badgering and interrupting a witness, name-calling, predicting that the
defendant will lie on the stand, and stating before the jury that the defendant is in need of
psychiatric help” amounts to prosecutorial misconduct, id. at 717, and we do not disagree.
In contrast to misconduct by the prosecutor there, the prosecutor here did indeed interrupt
White on multiple occasions, but he did so because White was not answering the question
posed. Standing alone, that does not rise to the level of prosecutorial misconduct.
Otherwise, the prosecutor did not act improperly during his cross-examination of
White. He attempted to impeach White by inquiring about basic music-related concepts,
because White claimed to support a lavish lifestyle in part based on money earned as a rap
artist. A question about the income taxes of White’s aunt Debi Brown-Taylor may have
been improper, but it was withdrawn after White’s objection for lack of foundation. Finally,
the questions regarding the Days Inn shooting were relevant to understanding White’s role
1
in the shooting and its aftermath.
White argues that the prosecutor also committed reversible error in his closing
remarks. Because White did not object to the statements at trial, plain error review
applies. United States v. Collins, 78 F.3d 1021, 1039 (6th Cir. 1996). Plain error review
involves four steps: we determine (1) whether “an error has been made” that is (2) plain
and (3) “affects the defendant’s substantial rights,” and if so, (4) we decide whether to
exercise our discretion to correct the error. Rose, 522 F.3d at 716. Reversible error
exists “only in exceptional circumstances and only where the error is so plain that the
trial judge and prosecutor were derelict in countenancing it.” Id. (quoting United States
v. Carroll, 26 F.3d 1380, 1383 (6th Cir. 1994)) (internal quotation marks omitted).
First, the prosecutor’s closing arguments regarding unexplained wealth, in the
realm of “millions of millions” of dollars were supported by the evidence.2 Therefore,
1
The prosecutor asked White: “Reinaldo Morales and Shaquann Branson were two of your closest
friends, correct?” That question was part of a line of questioning placing White at the scene of the Days
Inn shooting.
2
The prosecutor invoked the statement of “millions of millions of dollars” in the following portion
of his closing argument:
No. 07-2404 United States v. White Page 10
the prosecutor did not commit error in making those remarks. Tillman testified that he
saw White deal in amounts up to $400,000. The evidence permitted the inference that
White had purchased a number of expensive cars. Other witnesses testified that they
purchased drugs from White on a regular basis that totaled a significant sum not outside
of the realm of millions of dollars. Also, witnesses testified that White would spend
thousands of dollars on just one night out partying. The one comment in which the
prosecutor committed error was in stating that White had “never paid taxes in [his] life.”
The parties only stipulated to the fact that White had not paid taxes from 2003 to 2006.
That error alone is not enough to constitute reversible error on plain error review where
we reverse “only in exceptional circumstances.” Id.
Similarly, White points to comments made by the prosecutor which may amount
to error–satisfying step one of plain error review–but do not amount to reversible error.
White asserts that the prosecutor injected his personal opinion as to the credibility of
witnesses during closing argument. On a few separate occasions, the prosecutor called
the testimony of White’s witnesses “ridiculous” and the prosecutor referred to White’s
testimony as “offensive.” This argument fails because the prosecutor argued the facts
primarily, and only punctuated his remarks by calling the stories conjured up by White
and his witnesses “ridiculous.” In Collins, we determined that far more flagrant personal
opinions did not amount to reversible error where the prosecutor commented, inter alia,
that “the witnesses must think we drive turnip wagons if they expect you to believe this
tale,” “when the DLJ witnesses swore to tell the truth they demonstrated from the tales
they told that they have a lot of contempt for the people in Kentucky,” and “I might
deserve an Academy Award for not laughing when defense counsel said the payments
were motivated by desire.” 78 F.3d at 1039 n.14. As in Collins, comments by the
prosecution were wholly unnecessary, however the errors were harmless as the
Members of the jury, for the last four years this defendant has been flooding
west Michigan with cocaine and crack cocaine, putting it out there on the streets. And
for the last four days you’ve heard all the proof of that. What’s been going into his
pockets? Millions and millions of dollars.
....
And what’s been going into his pockets? Like I said, millions and millions of
dollars. Duffel bags full of cash. $20,000 at a pop, what honest people make in a year.
No. 07-2404 United States v. White Page 11
prosecutor here largely argued the facts presented to the jury, did not “misle[a]d the
jury” nor did he “remove the issue of credibility of witnesses from the jury.” Id. at 1040.
White argues that the prosecutor shifted the burden of proof during closing
argument.3 White argues that the prosecutor did this by both: (1) arguing that White’s
defense was not supported by his evidence; and (2) pointing out the failure of White to
produce evidence he testified that he had. These arguments fail because the prosecutor
is permitted to “summarize the evidence and comment upon both its quantitative and
qualitative significance.” United States v. Drake, 885 F.2d 323, 324 (6th Cir. 1989).
However, the following comment by the prosecution came very close to crossing the line
into flagrancy: “What other kind of proof did [White] bring in to establish that he’s not
a drug dealer?” This “specifically [] call[ed] attention to [White’s] failure to produce
evidence.” Id. Were it not for the district court’s clear instructions to the jury that the
government bears the burden of proof, the jury may have been confused by the
prosecutor’s closing arguments into believing that the law required White to disprove
the government’s criminal charges. But before the parties’ opening statements, the
3
White points to the following passage from the prosecutor’s closing argument.
What other kind of proof did he bring in to establish that he’s not a drug
dealer? A guidance counselor who said he makes it to his appointments most of the
time, except when he doesn’t. A guy who says, I think I sold his cousin a car once.
And another guy who says, I helped him put wheels on his car. Can you explain how
that proves he’s not a drug dealer, that he wasn’t talking about what he’s obviously
talking about on the tape? This whole rap career is completely fabricated.
Think about what’s not here, the evidence that’s not here that you would
expect. If he’s making all this money from some legitimate source, where is the
documentation? Where are the pay stubs? Where is the paycheck? Anything like that
to prove it. Where is the record contract? Doesn’t have one. Where is the newspaper
man who is helping him set up the DEA for this investigative journalism story? Where
are the CDs? If he’s got this big rap career and he’s been under indictment the whole
time waiting for his big day where he’s gonna prove his innocence, he didn’t think to
bring one CD in here to prove to you that he’s a rap artist.
You know where the CDs are? They’re at his mom’s house with the magical
part of the tape that proves that he’s innocent. Do you recall that? There’s a piece of
the tape that I have at home, and I can go get it if you wanted me to, that proves that I
was never gonna go through with a drug deal. All this time, he didn’t bring it, his mom
didn’t bring it. Oh, my mom’s too busy. She’s been sitting back here for three days.
Your son’s on trial for his life and you got the evidence that’s gonna prove he’s
innocent. Aw, shucks. You gonna forget to bring that? Unbelievable the things he’ll
tell you from the stand.
The fact is the money came from drugs. For four years he has been flooding
the streets with drugs, cocaine and crack cocaine. For four years he has been having his
way through threats, violence, and intimidation. That’s what he’s been doing for the last
four years.
No. 07-2404 United States v. White Page 12
district court emphasized that White “is presumed innocent and would remain presumed
innocent unless you [the jury] found unanimously after deliberating that he was guilty
of the count . . . [a]nd therefore, the government has that burden of proving his guilt
beyond a reasonable doubt.” The district court’s final jury instructions, following
closing argument and before the jury deliberated on the verdict, reiterated that the
“presumption of innocence stays with [White] unless the government presents evidence
before you [the jury] here in this courtroom that overcomes that presumption and
convinces you beyond a reasonable doubt that he is guilty.” Under plain error review,
assuming error but not deciding the question, reversible error did not occur because the
district court’s preliminary and final jury instructions cured any prejudice that the
prosecutor’s comments may have invited onto White regarding the burden of proof. See,
e.g., United States v. Venable, 269 F.3d 1086, 1091 (D.C. Cir. 2001).
For the forgoing reasons, we find no reversible error and affirm White’s
convictions.
IV. Sentencing
White argues that the district court erred in determining the amount of cocaine
attributable to him so that his base offense level should be 36, not 38. The amount of
cocaine attributable to White as part of the conspiracy is a factual finding that we
normally review for clear error. United States v. Samuels, 308 F.3d 662, 670 (6th Cir.
2002) (citing United States v. Jenkins, 4 F.3d 1338, 1345-46 (6th Cir. 1993)). However,
at sentencing, White only objected to the credibility of the witnesses with regard to
quantity. His attorney “agreed that if the testimony that was presented is believed, it
greatly exceeds [the 150 kilogram] threshold amount.” In other words, White argued at
sentencing that the district court ought to disbelieve as exaggerations the amounts to
which the witnesses testified. He did not argue that the district court’s drug quantity
determination lacked foundation in the record or that the drug quantity was otherwise
miscalculated even assuming the credibility of the witnesses. The government argues
then that we should only review for plain error because the latter argument urged by
White is a new argument on appeal. We need not decide this question because the error
No. 07-2404 United States v. White Page 13
here satisfies the more stringent plain error review so as to satisfy clear error review as
well.
As above, to show a sentence’s plain error, White “must satisfy the following
criteria: (1) that an error occurred in the district court; (2) that the error was plain, i.e.,
obvious or clear; (3) that the error affected defendant’s substantial rights; and (4) that
this adverse impact seriously affected the fairness, integrity or public reputation of the
judicial proceedings.” United States v. Davis, 397 F.3d 340, 346 (6th Cir. 2005)
(quoting United States v. Koeberlein, 161 F.3d 946, 949 (6th Cir. 1998)) (internal
quotation marks omitted).
“A drug quantity need only be established by a preponderance of the evidence,
and an estimate will suffice . . . .” United States v. Anderson, 526 F.3d 319, 326 (6th
Cir. 2008). “[T]estimonial evidence from a coconspirator may be sufficient to determine
the amount of drugs for which another coconspirator should be held accountable.”
United States v. Swanberg, 370 F.3d 622, 625 (6th Cir. 2004) (quoting United States v.
Hernandez, 227 F.3d 686, 697 (6th Cir. 2000)). The drug quantity estimate must “err[]
on the side of caution and likely underestimate[] the quantity of drugs actually
attributable to the defendant.” Anderson, 526 F.3d at 326. At sentencing, the district
court judge here determined that 300 kilograms of cocaine was a conservative estimate,
much less the 150 kilograms of cocaine that triggers a base offense level of 38.
Both in its sentencing memorandum,4 and at sentencing,5 the government
erroneously argued that Tillman had supplied White with five kilograms of cocaine per
week for a year and a half. The government used the five kilograms per week for a year
and a half to conclude that White’s dealings with Tillman alone would amount to
approximately 400 kilograms of cocaine (5 kilograms/week x 52 weeks/year x 1.5
4
The government cited to Tillman’s testimony for the proposition that: “From June 2005 to
November 28, 2006, Tillman was White’s supplier, and sold him five kilograms of cocaine per week.
Even using conservative estimates, this level of trafficking encompasses well over 400 kilograms of
cocaine.”
5
Referring to Tillman’s testimony during sentencing, the government stated that “Tillman testified
about five kilograms a week for about a year and a half . . . .”
No. 07-2404 United States v. White Page 14
years). Again on appeal, the government cites to its sentencing memorandum to argue
for the 400 kilograms figure. At trial, Tillman first testified that for a six month period,
from June 2005 through November 2005, he sold White 5 kilograms of cocaine per
week. On further questioning by the government, Tillman contradicted himself and
testified to dealing with White in $100,000-worth of cocaine per month for the same six
month period–which corresponds with 5 kilograms per month for that six month period.
This lesser estimation–five kilograms per month for six months results in only 30
kilograms of cocaine that can be attributed to White through his dealings with Tillman
over those six months. None of the parties corrected this misunderstanding. The district
court must use conservative estimates in the amount of cocaine it attributes to the
defendant as part of its base offense level, which means looking to the correct duration
of White and Tillman’s dealings and taking the lesser of the two amounts to which
Tillman testified. See Anderson, 526 F.3d at 326.
At sentencing, in evaluating the amount of powder cocaine at issue, the district
court emphasized its reliance on the dealings between White and Tillman, stating:
Well, this much appears to the Court, and that is that it was abundantly
clear throughout this trial . . . that there were considerable amounts of
drugs and monies that were coming through and that these monies and
drugs were largely revolving around Mr. White and his operation. Mr.
Wogoman, Mr. Tillman, extensively Mr. Tillman at great length
concerning quantities and amounts, and Kristinea Vaughn’s testimony.
First, the district court’s language emphasized that it relied heavily on the amount of
cocaine transacted between White and Tillman, as it noted the “considerable amounts
of drugs and monies” involving “extensively Mr. Tillman at great length concerning
quantities and amounts.” Second, White dealt with Wogoman and Vaughn–the other
two persons whose dealings with White the district court explicitly relied upon–at most
in amounts of cocaine of five or six kilograms, “three or four” in a deal observed by
Wogoman and two attributed to Vaughn. This accounts for a tiny proportion of the 150
kilograms needed to trigger the base offense level of 38 and the 300 kilograms the
district court indicated that the evidence supplied by Wogoman, Tillman, and Vaughn
supported. To get to 150 kilograms, much less 300 kilograms, the district court then
No. 07-2404 United States v. White Page 15
must have relied primarily upon the amount dealt between White and Tillman in far
excess of 30 kilograms, the conservative estimate to which Tillman testified. Therefore,
error existed in the district court that was plain, in satisfaction of prongs one and two of
plain error review.
The error affected White’s substantial rights. In other words, the error was
prejudicial. Davis, 397 F.3d at 349 (citing United States v. Olano, 507 U.S. 725, 734
(1993)). Absent the erroneous Tillman amount, the other amounts of drug dealings
explicitly detailed by the government’s witnesses, taken together–and taken
conservatively–do not necessarily amount to the 150 kilogram threshold for a base
offense level of 38. The government’s sentencing memorandum and its brief on appeal
cite to testimony from Branson and Ervin Fance,6 in addition to Tillman’s testimony.
Branson testified to one kilogram per week for “a couple of months out of 2005,” which
gives us an estimate of eight kilograms.7 Fance testified to one kilogram per week from
December 2004 until Fall 2006, which gives us an estimate of 91 kilograms. Wogoman
testified to seeing a deal for three to four kilograms of cocaine giving a conservative
estimate of three kilograms. Tillman’s testimony can be construed as having only 30
kilograms sold by Tillman to White from June 2005 through November 2005. In
addition, Tillman testified that from some time in 2003 until “the tables turned,”8 he
bought one eighth of a kilogram (equivalent to four and a half ounces) per week from
White, which gives us a conservative estimate of 11 kilograms of powder cocaine
(estimating the starting point conservatively as September 2003). Upon further
questioning from the prosecutor, Tillman agreed with the prosecutor’s statement that
“from 2003 till June or so of 2005 you bought about a quarter kilo a week from [White].”
Similar to the five kilograms per week later in 2005, the government argued that Tillman
6
Fance, who was not involved in any of the four specific incidents described in the facts section,
testified to drug transactions–the circumstances of the transactions and the amounts–he had with White
from 2004 to 2006. He also testified to White’s lavish lifestyle and lack of other sources of income.
7
Branson testified to dealing with White in amounts of powder cocaine less than one kilogram
during 2005 but not with any clarity or specificity to allow a conservative estimation of the amount.
8
Tillman testified that “the tables turned” in June 2005 when he “turned” from buyer to seller in
his dealings with White.
No. 07-2404 United States v. White Page 16
testified to a quarter of a kilogram per week from 2003 until June 2005, without
acknowledging that Tillman had also testified to an eighth of a kilogram per week from
2003 until June 2005. Neither of the parties nor the district court addressed this issue,
either, likely because they all mis-perceived that Tillman had clearly testified to drug
amounts in the vicinity of 400 kilograms. Finally, the Tillman drug bust involved two
kilograms of powder cocaine. Taking the conservative estimates testified to by these
witnesses, the drug amount of powder cocaine appears to fall short of the 150 kilogram
threshold, weighing in at only 145 kilograms (8 kilograms + 91 kilograms + 3 kilograms
+ 11 kilograms + 30 kilograms + 2 kilograms).
Finally, we decide to exercise our discretion to remand in this case. On plain
error review, an appeals court can deny remand even if an error exists, it is plain, and it
affects substantial rights. Id. Federal Rule of Criminal Procedure 52(b) governs plain
error review, and it permits remand in the case of plain error, but does not require it.
Olano, 507 U.S. at 735. We decide to exercise our discretion here because White
received a life sentence. With a total offense level of 43 and a criminal history category
of IV, the Guidelines range is life imprisonment. U.S.S.G. § 5A. A base offense level
of 36 rather than 38 would result in a total offense level of 42,9 which gives a Guidelines
range of 360 months’ imprisonment to life. White is a young man–29 years old. We do
not impose a life sentence lightly, and particularly so when the district court has
committed prejudicial plain error. Therefore, we choose to exercise our discretion and
vacate White’s sentence.
Other witnesses testified to drug activity which may permit a greater total or
there may be additional testimony from the witnesses listed that indicates a greater
amount of powder cocaine at issue which the district court can consider upon re-
sentencing.10 However, we have identified clear error in the district court’s calculation
9
White’s total offense level with a base offense level of 38 was 44, but any total offense level
above 43 is reduced to 43 pursuant to U.S.S.G. § 5A, Application note 2.
10
Should the district court on re-sentencing choose to sentence White under the crack cocaine
amount, its attention is called to the Supreme Court’s decisions in Kimbrough v. United States, 128 S. Ct.
558 (2007), and Spears v. United States, 129 S. Ct. 840 (2009). Both 150 kilograms of powder cocaine and
1.5 kilograms of crack cocaine suffice to trigger the base offense level of 38. At the original sentencing
No. 07-2404 United States v. White Page 17
of the drug amounts upon which it appeared to have relied in sentencing. For these
reasons, while we affirm White’s convictions, we remand to the district court for re-
sentencing of the defendant.
hearing, the district court calculated the drug amount only with respect to powder cocaine which alone
sufficed to trigger the 38 base offense level.