United States v. Stapleton , 297 F. App'x 413 ( 2008 )

NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
File Name: 08a0617n.06
Filed: October 15, 2008
No. 07-5775
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
United States of America, )
)
Plaintiff-Appellee ) ON APPEAL FROM THE
) UNITED STATES DISTRICT
v. ) COURT FOR THE EASTERN
) DISTRICT OF KENTUCKY
Alice Marie Stapleton, )
)
Defendant-Appellant. )
BEFORE: MOORE and COLE, Circuit Judges, and GRAHAM,* District
Judge.
GRAHAM, District Judge. Defendant-Appellant Alice Marie
Stapleton (“the defendant”) appeals the judgment of conviction
entered in the United States District Court for the Eastern
District of Kentucky. Defendant was charged by a second
superseding indictment filed on December 21, 2006, with: conspiracy
under 18 U.S.C. § 371 to provide an inmate at a federal prison with
prohibited objects and to obtain prohibited objects inside the
prison, namely heroin, marijuana and cell phones, in violation of
18 U.S.C. §§ 1791(a)(1) and (2) (Count 1); conspiracy under 21
U.S.C. § 846 to distribute heroin (Counts 2, 3 and 4) and marijuana
(Count 6) in violation of 21 U.S.C. § 841(a)(1); possession with
the intent to distribute heroin (Count 5) and marijuana (Count 7)
in violation of § 841(a)(1); and attempting to provide an inmate at
a federal penitentiary with prohibited objects (heroin, marijuana,
and two cellular telephones) in violation of 18 U.S.C. §1791(a)(2)
*
The Honorable James L. Graham, United States District Judge for the
Southern District of Ohio, sitting by designation.
(Count 8).
Personne McGhee, Clady McGhee, Grady Perry, Kenneth Ray Bates,
Maria Mims, and Temeka Halliburton were also named as defendants.
The McGhees, Perry, and Halliburton entered guilty pleas. The case
against Bates was dismissed on the government’s motion. The case
against defendant and Mims proceeded to trial before a jury on
February 20, 2007. At the end of the government’s case and at the
conclusion of the evidence, the district court denied defendant’s
motions for judgment of acquittal pursuant to Fed.R.Crim.P. 29.
On February 23, 2007, the jury returned a verdict of guilty on
all counts. Defendant filed a motion for a new trial pursuant to
Fed.R.Crim.P. 33 on March 1, 2007. The district court denied the
motion by order filed on June 7, 2008. On June 8, 2007, the
district court imposed a sentence of sixty months imprisonment on
Counts 1 through 7, to run concurrently, and eighteen months on
Count 8 to run consecutively. On June 15, 2007, defendant filed a
timely notice of appeal.
On appeal, defendant asserts the following claims of error:
(1) the district court erred in permitting the government to
question three coconspirator witnesses concerning their guilty
pleas and in denying her motion for a mistrial prompted by a
comment made by Personne McGhee; (2) the district court erred in
refusing to instruct the jury on the defense of duress; (3) the
district court erred in denying defendant’s motions for judgment of
acquittal; (4) the district court erred in submitted a redacted
copy of the indictment to the jury; (5) the district court erred in
instructing the jury regarding the mental state necessary to
convict on the drug distribution and possession charges, and in
2
answering the jury’s questions during deliberations; (6) the
government acted in bad faith by indicating that a proposed defense
witness might be re-indicted if he testified; (7) the district
court erred in refusing to grant immunity to the proposed defense
witness; (8) the district court erred in denying defendant’s motion
for a new trial; and (9) defendant is entitled to a new trial due
to the above cumulative errors allegedly committed during the
trial. For the following reasons, we AFFIRM the judgment of the
district court.
I. Evidence Presented at Trial
The evidence produced at trial by the government revealed that
defendant was employed as a correctional officer at United States
Penitentiary Big Sandy. Defendant was introduced to inmate
Personne McGhee by inmate Kenneth Bates in 2005. In mid-2005,
Personne McGhee devised a scheme to import drugs into Big Sandy
through a group which also included inmate Sherlone Henderson,
Temeka Halliburton (Henderson’s girlfriend), inmate David Ward,
Maria Mims (Ward’s girlfriend), inmate Manny Gordiola, and Clady
McGhee (Personne McGhee’s mother). Personne McGhee approached
defendant and asked her if she would like to make some money. He
told her that she would “just have to bring some in through the
institution” and offered her a price, and defendant agreed.
In late 2005, Gordiola arranged for heroin to be shipped to
Mims in Indianapolis. Personne McGhee told Clady McGhee that he
wanted her to pick up some “legal papers,” but she later learned he
was referring to drugs. In late December, 2005, Clady McGhee and
Halliburton went to Indianapolis and picked up the drugs from Mims.
Clady McGhee and Halliburton came to the institution, and Clady
3
McGhee advised Personne McGhee that the package had arrived.
Personne McGhee told Clady that a woman guard would be picking up
the package at their motel in Paintsville, and gave a description
of the defendant. Personne McGhee arranged through his street
contacts to have cash delivered to Clady McGhee so that she could
pay defendant $800. Personne McGhee instructed his mother to put
the heroin in a baby powder bottle. He sent a note to defendant
with one of the runners working in the institution to let her know
the location of the motel and the room number. Defendant arrived
at the motel room, and Halliburton gave her the baby powder bottle
containing the heroin and an envelope containing money. The next
day, an inmate brought a bottle of baby powder to Personne McGhee
from the block where defendant was working. The bottle contained
balloons of heroin.
A second delivery of heroin was arranged in March of 2006.
Clady McGhee and Halliburton picked up a package from Mims in
Indianapolis. Clady McGhee and Halliburton again went to the motel
in Paintsville. Personne McGhee instructed them to give defendant
$1,000. Personne McGhee sent a letter to defendant by runner to
inform her of the location of the motel where she could meet with
Clady McGhee. Defendant came to the motel room and picked up the
baby powder bottle, and Clady McGhee gave her the money. The next
day, Personne McGhee informed Clady McGhee that he had received the
baby powder bottle containing 108 portions of heroin wrapped in
plastic. Halliburton observed defendant at the prison when they
went to visit with Personne McGhee and, recognizing her, learned
that defendant was a prison guard.
Gordiola placed another order for heroin in July of 2006.
4
Personne McGhee also arranged for a pound of marijuana and two cell
phones to be brought to the institution. Clady McGhee arranged for
Grady Perry to take her to Indianapolis to pick up the heroin at
Mims’ address. Clady McGhee and Perry then went to Columbus, Ohio,
and picked up a Tide box and $1,000 from Personne McGhee’s half
brother, Matt Meyers. Personne McGhee instructed his mother to
place a handicap sticker in the window of the motel room so that
the defendant would know where to come. Clady McGhee and Perry
then went to a motel in Paintsville, and Clady McGhee placed a
handicap sticker in the window. Personne McGhee contacted
defendant by letter to tell her which motel to go to, and to look
for a handicap sticker in the window. McGhee instructed his mother
to pay defendant $1,000. The next morning, defendant arrived at
the motel about 8:25 a.m. Clady McGhee gave her the money, and
defendant picked up the boxes and left.
The evidence further revealed that David Link, a Special
Investigative Agent at Big Sandy, began an investigation into drugs
being brought into the prison. He received information from an
inmate that drugs concealed in baby powder bottles were being
carried into the prison by staff. Link was told that a staff
member was involved, and defendant’s name was mentioned by one
inmate. Phone records disclosed that Personne McGhee made phone
calls to family members. The term “legal papers” was used in the
conversations as a code name for drugs. Mr. Link received
information indicating that a delivery of drugs was imminent in
mid-July.
On Saturday, July 22nd, Clady McGhee and Grady Perry came to
visit with Personne McGhee at the institution. They were followed
5
back to a motel, where surveillance was established by Link and the
FBI. Between 8:00 a.m. and 8:30 a.m., defendant arrived at the
motel in a white vehicle and entered a motel room. A handicapped
parking permit was placed in the window of the motel room.
Defendant left the motel room carrying a plastic bag and a
detergent box. She drove away in her vehicle, and was pulled over
by the Kentucky State Police about a mile up the road.
Defendant gave consent to search her vehicle, and a Tide
detergent box, a plastic bag containing a baby powder bottle, and
$1,000 in cash were found in the trunk. The Tide box contained a
brick of marijuana, which weighed approximately 435 grams, and two
cellular telephones with bases and chargers. The baby powder
bottle contained a large chunk of black tar heroin weighing
approximately 25.285 grams. Defendant informed them about the
location of the money in the car.
Defendant was advised of her Miranda rights and signed a
waiver form. She admitted possessing the items which were found in
her car. She also stated that she had brought another shipment
into the prison several months before and that she had been paid
approximately $800. Defendant stated that she brought the items
into the institution in her lunch cooler. Defendant was not placed
under arrest at that time. She was later arrested at Big Sandy on
July 28, 2006, and signed another rights waiver form. Defendant
admitted picking up three shipments at the motel.
Defendant testified at trial that she was threatened by inmate
Kenneth Bates in the housing unit around Christmas of 2005. Bates
told her personal information about herself and her family, and
informed her that she had to bring in a package for him and that he
6
told her she “had no choice but to do it.” Defendant stated that
Bates threatened her life. She stated that she did not report
Bates because she was scared. She was afraid that if she pressed
the alarm button, Bates would hear it and kill her. Bates told her
that he had contacts inside and outside the prison. When defendant
left work, she went to the motel and obtained a package from Clady
McGhee. She denied receiving any money for picking up the package.
Defendant brought the package into the institution that evening in
her lunch pail and gave it to Bates. Defendant denied knowing what
was in the package.
Defendant further testified that two or three months later,
Bates told her to pick up another package, and said she had no
choice because he would kill her if she didn’t do it. She went to
the motel and obtained a package from Halliburton, but received no
money. Defendant stated she did not know what was in the package.
She gave the package to Bates the next night. Defendant did not
report Bates, although she “thought about it.”
Defendant also testified that on July 23, 2006, Bates came to
her office and told her that she had to meet his family again. The
evidence included a video tape record of Bates going to talk to
defendant in her office on that date. Defendant testified that
Bates stated that if she refused, he would kill her, and he showed
her a shank and was “really aggressive.” Defendant went to the
motel, and was told by Clady McGhee to take the Tide box, the
plastic bag, and some money which was intended for Bates. After
she left the motel, defendant was pulled over by a state trooper,
and she showed him where the money was located. She claimed she
informed the agents that Bates had threatened her life. She denied
7
knowing what was in any of the packages.
Defendant further testified that she knew that it was a
violation of prison policies not to report the threats from Bates.
She acknowledged that she knew people in the county sheriff’s
officer and the Kentucky State Police, and that her uncle was the
head of the Big Sandy Regional Detention Center, but stated that
she did not contact any of these law enforcement officers about the
threats. She admitted that when Bates talked with her on July 23,
she did not press her body alarm, use her radio, or phone to call
for help, and that she could have left the office and locked Bates
in the office while she called for help, but did not do so.
Relative to the duress issue, the government presented
testimony that corrections officers are issued radios to
communicate with staff, and that some of the radios have body
alarms which alert the control center if triggered. Link testified
that if an officer leaves a phone off the hook for more than
fifteen seconds, a no-dial alarm is sent to the control center, and
staff will go to investigate the problem. Link also stated that if
an inmate makes a threat to an officer, an incident report should
be filed immediately with the shift supervisor. He testified that
if defendant felt threatened by an inmate, she could have hit her
body alarm, and a correctional officer would have responded within
fifteen to twenty seconds. He further stated that defendant could
have knocked the telephone off the hook or dialed 222, which would
have alerted other staff, and could also have re-entered the office
and locked the door.
The government also introduced evidence that corrections
officers are given training on how to report incidents involving
8
manipulative inmates. The officers are trained on reporting
threats to supervisors. Plaintiff received training on how
prisoners can corrupt or compromise staff members, and would have
been instructed to avoid doing favors for inmates and to report any
pressure or threats to her supervisors. Defendant also received a
book which covered coercion and intimidation by inmates.
II. Assignments of Error
A. Questioning of Coconspirators
1. Plea Agreements
Defendant argues that the district court erred in permitting
the government to question Personne McGhee, Clady McGhee, and
Temeka Halliburton, co-conspirators who testified as government
witnesses, about the fact that they had entered into plea
agreements. At the beginning of trial, defendant objected to the
government questioning witnesses about pleading guilty to a
conspiracy with which defendant was charged. The court permitted
the government to refer to the guilty pleas in its opening
statement. Later, Personne McGhee was questioned concerning his
guilty plea to conspiracy and bringing drugs into the institution.
Clady McGhee and Halliburton were also asked about their guilty
pleas.
Evidentiary rulings of the district court are reviewed for
abuse of discretion. United States v. Lloyd, 462 F.3d 510, 516 (6th
Cir. 2006). “Evidence that a coconspirator has been convicted of
conspiring with a criminal defendant is generally inadmissible,
because it might lead the jury to ‘regard the issue of the
remaining defendant’s guilt as settled and [conclude that] the
trial is a mere formality.’” United States v. Modena, 302 F.3d
9
626, 631 (6th Cir. 2002)(quoting United States v. Griffin, 778 F.2d
707, 711 (11th Cir. 1985)). However, if the coconspirator testifies
at trial, evidence of the coconspirator’s prior convictions may be
introduced so that the jury can accurately assess his credibility.
Id. If the evidence is admitted, the district court must instruct
the jury that it may not consider the coconspirator’s prior
conspiracy conviction as evidence of the defendant’s guilt. United
States v. Sanders, 95 F.3d 449, 454 (6th Cir. 1996)(“When a guilty
plea or conviction is introduced into evidence, the district court
is required to give a cautionary instruction to the effect that the
jury may use the conviction or guilty plea only to determine the
testifying witness’s credibility.”).
In this case, the three coconspirators testified at trial as
witnesses for the government. The government was properly
permitted to question them on direct examination about their guilty
pleas and conspiracy convictions “in order to ‘remove the sting’ of
any attempt to impeach [their] credibility with [their]
conviction[s] on cross-examination.” Modena, 302 F.3d at 632; see
also Sanders, 95 F.3d at 454 (holding that guilty pleas of
government witnesses were properly admitted for credibility
purposes).
The district court gave a cautionary instruction to the jury
during Personne McGhee’s testimony:
As part of that testimony, you heard evidence that Mr.
McGhee pled guilty to certain charges in this crime. You
may not consider that fact, in other words, his guilty
plea, as evidence of Ms. Stapleton’s guilt or Ms. Mims’s
guilt, it may only be used to assess the credibility of
Mr. McGhee’s testimony in terms of the weight that you
would give to Mr. McGhee’s testimony.
At the conclusion of the case, the district court again instructed
10
the jury, “The fact that Personne McGhee, Clady McGhee, and Temeka
Halliburton have pleaded guilty to a crime is not evidence that the
defendants are guilty, and you cannot consider this against the
defendants in any way.” These cautionary instructions were
adequate to ensure that the jury did not use this evidence for an
improper purpose.
2. Request for a Mistrial
Defendant also argues that the district court should have
granted her motion for a mistrial made during Personne McGhee’s
testimony. During his direct testimony, McGhee was questioned by
the government about his motive for testifying in the case. He was
asked, “Does your testimony here today violate any sort of inmate
code?” He responded, “Yes.” He stated that by testifying, his
life might be threatened by other inmates at the institution. When
asked why he was putting his life at risk by testifying, McGhee
responded, “Because I didn’t want to put my mother at risk to have
to come in here and testify against me. And I wouldn’t had [sic]
to be here if all parties involved just admitted guilt when they
knew they was [sic] guilty.” Counsel for defendant then moved for
a mistrial, objecting to the witness’s suggestion “that my client
should have plead guilty as well because they’re both charged with
the same conspiracy[.]” The district court denied the motion for
a mistrial, finding that it was appropriate for the government to
question a testifying coconspirator about the fact that he had
pleaded guilty.
The district court’s ruling on the motion for a mistrial is
reviewed for abuse of discretion. See United States v. Harris, 165
F.3d 1062, 1066 (6th Cir. 1999). In determining whether improper
11
witness statements affected the substantial rights of the defendant
so as to warrant a new trial, the factors to be considered are: (1)
whether the government’s line of inquiry was reasonable and
justified by the circumstances of the witness being questioned; (2)
whether there was any showing that the government acted in bad
faith or otherwise deliberately injected the witness’s stray
remarks; (3) whether the remarks were detailed or of major
importance when compared with the other evidence against the
defendant; and (4) whether a curative instruction was sought or
given. Id.; United States v. Terry, 729 F.2d 1063, 1070 (6th Cir.
1984).
In this case, the government’s line of inquiry was reasonable
under the circumstances. Counsel for the government indicated that
they wanted to bring out the fact that McGhee’s motive for
testifying was to help his mother avoid jail time for his actions
in getting her involved in the offense. Government counsel
indicated that they did not know or anticipate that McGhee was
going to make the statement about other defendants choosing not to
plea guilty, nor did they prompt him to make the statement. This
representation is bolstered by the fact that Personne McGhee was
not a seasoned law enforcement officer, but a lay witness. The
remark was isolated, rather than being “part of a pattern
indicative of bad faith,” and the stray remark constituted only a
small part of the testimony against defendant. Harris, 165 F.3d at
1066. Finally, the district court also gave a prompt cautionary
instruction to the jury regarding McGhee’s comment. After
informing the jury that McGhee’s guilty plea could not be
considered as evidence of defendant’s guilt, the court instructed
12
the jury:
Furthermore, you as a jury are instructed to disregard
any comment that the witness might have made on his
personal opinions about what other defendants should do
in this case. That comment was inappropriate and you
should simply just disregard the comment that he made
about what other defendants perhaps should do in this
case.
The court also gave an instruction on the presumption of innocence.
Juries are presumed to understand and follow such directions from
the court. United States v. Forrest, 17 F.3d 916, 920-21 (6th Cir.
1994)(citing United States v. Sivils, 960 F.2d 587, 594 (6th Cir.
1992)).
Considering the relevant factors, the district court did not
abuse its discretion in denying the motion for a mistrial. See
United States v. Moore, 376 F.3d 570, 575 (6th Cir. 2004)(denial of
mistrial upheld where single comment was not “of major import” when
compared with other evidence, and district court immediately
admonished the jury to disregard the comment); Harris, 165 F.3d at
1066 (district court did not abuse discretion in denying mistrial
where stray remark constituted minuscule part of evidence against
defendant, line of questioning was reasonable, the government did
not intentionally elicit reference to prior arrest, and court gave
an immediate and clear limiting instruction); Forrest, 17 F.3d at
921 (mistrial not warranted in light of clear admonition by judge
and ample evidence of guilt); United States v. Hernandez, 873 F.2d
925, 928 (6th Cir. 1989)(denial of mistrial upheld where improper
reference to arrest was unsolicited, government’s line of
questioning was reasonable, limiting instruction was immediate,
clear, and forceful, and reference was only a small part of
evidence against defendant).
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B. Refusal to Instruct on Duress Defense
On January 9, 2007, the government filed a motion in limine to
preclude defendant from presenting a duress defense at trial. The
court denied the motion without prejudice by order filed on
February 8, 2007, stating that the government “may renew its motion
at the close of evidence as it relates to potential jury
instructions.” Following the charge conference, the court invited
argument on whether to instruct the jury on the defense of duress.
The government renewed its motion in limine, and the court granted
the motion, declining to instruct the jury on the duress defense.
The district court found that the defendant failed to establish a
prima facie case of duress in regard to the element of the defense
which required defendant to show that she had no reasonable legal
alternative to violating the law either before or during the event.
This court “reviews jury instructions as a whole to determine
whether they fairly and adequately submitted the issues and
applicable law to the jury.” United States v. Brown, 367 F.3d 549,
555 (6th Cir. 2004). A district court’s refusal to give a requested
jury instruction is reversible error only if: (1) the instruction
is a correct statement of the law; (2) the instruction is not
substantially covered by other delivered charges; and (3) the
failure to give the instruction impairs the defendant’s theory of
the case. United States v. Newcomb, 6 F.3d 1129, 1132 (6th Cir.
1993).
Whether a defendant has established a defense of duress is a
question of law which this court reviews de novo. United States v.
Johnson, 416 F.3d 464, 468 (6th Cir. 2005). A court is not required
to instruct the jury on a defense the theory of which is not even
14
supported by the testimony of the defendant. United States v.
Plummer, 789 F.2d 435, 438 (6th Cir. 1986). “Therefore, where the
evidence is insufficient as a matter of law to support a duress
defense, a trial judge should exclude that evidence.” Johnson, 416
F.3d at 468; see also United States v. Singleton, 902 F.2d 471,
472-73 (6th Cir. 1990)(defense of duress is appropriate only in rare
situations and should be narrowly construed, and an instruction on
duress is properly denied “if the evidence could not support a
verdict based on it.”)(citing United States v. Bailey, 444 U.S.
394, 398-99 (1980)).
Under Singleton, an instruction on duress is appropriate if
the defendant has produced evidence upon which a reasonable jury
could conclude by a preponderance of the evidence that each of the
following circumstances exist:
(1) defendant was under an unlawful and present,
imminent, and impending threat of such a nature as to
induce a well-grounded apprehension of death or serious
bodily injury;
(2) defendant had not recklessly or negligently placed
herself in a situation in which it was probable that she
would be forced to choose the criminal conduct;
(3) defendant had no “reasonable, legal alternative to
violating the law, a chance both to refuse to do the
criminal act and also to avoid the threatened harm”;
(4) a direct causal relationship may be reasonably
anticipated between the criminal action taken and the
avoidance of the threatened harm; and
(5) defendant did not maintain the illegal conduct any
longer than absolutely necessary.
Singleton, 902 F.2d at 472-73 (internal quotation marks omitted).
The district court’s determination that defendant had failed
15
to present a prima facie case in regard to the third element is
well supported by the record. The evidence, including defendant’s
testimony, reveals that there were several reasonable legal
alternatives which defendant could have pursued when faced with
Bates’s threats, including using the various alarm systems
available to officers in the institution and reporting the threats
to supervisors as required under the institution’s policies.1 In
addition, even assuming that defendant was under an imminent,
impending threat of death or serious bodily injury from Bates when
he confronted defendant in the institution, that threat was no
longer imminent or impending as soon as defendant was no longer in
Bates’s presence. The district court properly refused to instruct
the jury on the duress defense.2
C. Denial of Rule 29 Motions
1. Standard of Review
This court reviews de novo a denial of a motion for judgment
of acquittal. United States v. McGhee, 529 F.3d 691, 696 (6th Cir.
2008). The applicable standard is whether, viewing the trial
testimony and exhibits in the light most favorable to the
1
Although the district court relied on defendant’s failure to proffer
evidence regarding the third element, it also appears from the evidence,
including defendant’s testimony, that the first and fifth elements of the defense
were not satisfied. Defendant was not under an imminent threat of death or
serious bodily injury from Bates while she was away from the institution picking
up the drugs at the motel, and thus she engaged in the illegal conduct longer
than absolutely necessary to avoid any immediate threat from Bates while he
confronted her in the institution.
2
Despite this ruling, the issue of duress was indirectly presented to the
jury. In charging on the conspiracy counts, the court instructed the jury that
in order to convict the defendant, the jury had to find that the defendant
“voluntarily” joined the conspiracies. By finding defendant guilty on the
conspiracy counts, the jury must have rejected defendant’s testimony that she did
not voluntarily become involved in the plan to bring contraband into the
institution.
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prosecution, any rational trier of fact could have found the
essential elements of the crime beyond a reasonable doubt. See
Jackson v. Virginia, 443 U.S. 307, 319 (1979); United States v.
Solorio, 337 F.3d 580, 588 (6th Cir. 2003). In doing so, the court
does not reweigh the evidence, re-evaluate the credibility of
witnesses, or substitute its judgment for that of the jury. United
States v. Hilliard, 11 F.3d 618, 620 (6th Cir. 1993). The evidence
need not exclude every reasonable hypothesis except that of guilt.
United States v. Adamo, 742 F.2d 927, 932 (6th Cir. 1984).
2. Duress as Defense to Conspiracy Offenses
Defendant argues that the district court erred in denying her
Rule 29 motion in light of her duress defense, and further argues
that the evidence was insufficient to show that she willingly
became a member of the conspiracies alleged in the indictment.
However, the defense of duress presents an issue which is separate
and apart from the elements of the conspiracy offenses. The
elements of a drug conspiracy under 21 U.S.C. § 846 are: (1) an
agreement to violate drug laws; (2) knowledge and intent to join
the conspiracy; and (3) participation in the conspiracy. United
States v. Caver, 470 F.3d 220, 232-33 (6th Cir. 2007). In order to
convict defendant for conspiracy in violation of 18 U.S.C. § 371,
the government was required to prove: (1) the existence of an
agreement to violate the law; (2) the defendant’s knowledge and
intent to join the conspiracy; and (3) an overt act constituting
actual participation in the conspiracy. United States v. Hughes,
505 F.3d 578, 593 (6th Cir. 2007).
The duress defense “does not negate a defendant’s criminal
state of mind when the applicable offense requires a defendant to
17
have acted knowingly or willfully; instead, it allows the defendant
to ‘avoid liability ... because coercive conditions or necessity
negates a conclusion of guilt even though the necessary mens rea
was present.’” Dixon v. United States, 548 U.S. 1, 7
(2006)(quoting Bailey, 444 U.S. at 402). Thus, the fact that
defendant claimed to have acted involuntarily while under duress
does not undermine the government’s proof on the issue of whether
defendant knowingly and intentionally joined the conspiracies.
The government produced evidence sufficient to permit a
rational trier of fact to conclude that defendant knowingly and
intentionally became a part of the charged conspiracies. Personne
McGhee testified that he approached defendant and asked her if she
would like to make some money. He told her that she would “just
have to bring some in through the institution” and offered her a
price, and defendant agreed. Defendant admitted picking up
packages on three occasions and smuggling the first two packages
into the institution in her lunch cooler. There was also testimony
that defendant was paid for her part in the conspiracy. The
testimony of Clady McGhee and Kim Halliburton establishes that
defendant was paid $800 for the first delivery and $1,000 for the
second and third deliveries. There was also evidence that
defendant admitted receiving $800 for one delivery, and that she
was found to be in possession of $1,000 after picking up packages
on the third occasion. The jury could reasonably infer from this
evidence that the defendant participated in the conspiracies
knowingly and intentionally.
As previously stated, defendant did not produce sufficient
evidence to establish a duress defense, and the district court
18
properly determined that defendant had failed to proffer evidence
sufficient to establish the defense of duress or to warrant an
instruction on that defense. Even if defendant had successfully
proffered sufficient evidence to warrant a jury instruction, the
issue of duress would have presented a fact question for the jury;
defendant was not entitled to judgment as a matter of law on her
duress defense. The district court did not err in denying
defendant’s Rule 29 motions on the conspiracy counts based on her
duress defense.
3. Knowledge of Contents of Packages
Defendant also argues that the evidence was insufficient to
support her conviction on the drug charges because the government
failed to show that she had knowledge that the packages she picked
up contained controlled substances.
The elements of the offense of distribution of a controlled
substance under 21 U.S.C. § 841(a)(1)3 are that (1) the defendant
knowingly; (2) distributed a controlled substance. United States
v. Forrest, 17 F.3d 916, 919 (6th Cir. 1994). The elements of the
offense of possession with intent to distribute a controlled
substance under 21 U.S.C. § 841(a)(1) are that “(1) the defendant
knowingly; (2) possessed a controlled substance; (3) with intent to
distribute.” United States v. Gibbs, 182 F.3d 408, 424 (6th Cir.
1999). The elements of a drug conspiracy under 21 U.S.C. § 846
are: (1) an agreement to violate drug laws; (2) knowledge and
intent to join the conspiracy; and (3) participation in the
conspiracy. Caver, 470 F.3d at 232-33.
3
21 U.S.C. § 841(a)(1) provides that “it shall be unlawful for any person
knowingly or intentionally–(1) to ... distribute, ... or possess with intent to
... distribute, ... a controlled substance[.]”
19
To prove an offense under § 841(a)(1), the government is not
required to show that the defendant knew the exact type or quantity
of the controlled substance involved. United States v. Villarce,
323 F.3d 435, 439 (6th Cir. 2003)(§ 841(a)(1) requires nothing more
specific than an intent to distribute a controlled substance; “drug
type and quantity are irrelevant to the mens rea element of §
841(a)(1)”)(citing United States v. Garcia, 252 F.3d 838, 844 (6th
Cir. 2001)). Rather, the government is only required to prove that
the defendant knew that the substance was some type of controlled
substance. Villarce, 323 F.3d at 439. This burden also applies to
conspiracies to violate § 841(a)(1) under §846. Id. at 439 n. 1.
Circumstantial evidence, standing alone, can sustain a guilty
verdict. United States v. Jones, 124 F.3d 781, 784 (6th Cir. 1997).
Evidence was introduced that defendant had received training
on not doing favors for prisoners, the possession by inmates of
contraband such as drugs, and the problems created by gangs dealing
drugs within the prison. There was testimony that corrections
officers are also instructed that it is illegal to bring contraband
such as drugs to inmates.
Personne McGhee testified that he asked defendant if she would
be interested in making some money, and she agreed that she would
because she was trying to make some money to pay for her schooling.
McGhee was asked, “What did you tell her that she would have to do
to make the money?” and he responded, “She would just have to bring
some in through the institution.” Although he did not clarify what
he meant by “some,” this testimony occurred in the context of his
testimony concerning his plans for obtaining drugs to sell in the
institution. There was also evidence that on the occasion of the
20
last delivery, defendant called Clady McGhee’s cell phone and
stated, “I’m calling about the legal papers.” The reference to
“legal papers” was the same code term for drugs used by Personne
McGhee while speaking on the phone with Clady. Personne McGhee
also testified that “legal work” was a code name for drugs in the
institution.
Defendant was paid $800 for the first delivery and $1,000 for
the next two deliveries. Since this was a substantial amount of
money to deliver something small enough to be concealed in a baby
powder bottle, the jury could reasonably conclude that defendant
would know that the contents were something that would be of
considerable value to McGhee and other inmates, such as controlled
substances. The jury could also reasonably find that it would be
unreasonable for defendant to conclude that the packages contained
cash, since there was testimony that cash is of no value to an
inmate because the medium of exchange at the institution is stamps,
and an inmate cannot deposit cash into his account.
The value of the controlled substances was revealed by
Personne McGhee’s testimony. The first shipment contained three
ounces of heroin, which could be sold in the prison for up to
$1,500 per gram. McGhee also testified that the third shipment
included a pound of marijuana, which could be sold for $15 for one
“joint”, and up to $1,000 to $1,500 per ounce. McGhee also
testified that he was serving a sentence for drug distribution at
the institution.
In light of the circumstances in evidence, including
defendant’s training as a corrections officer, the jury could
reasonably conclude that defendant was aware that the packages
21
contained a controlled substance, and the district court did not
err in denying defendant’s Rule 29 motions on the drug counts.4
D. Submission of Redacted Copy of Indictment to the Jury
Defendant argues that it was error for the district court to
submit a written copy of the indictment to the jury which deleted
the reference to Kenneth Bates, who was previously dismissed as a
defendant. Defense counsel objected to sending a written copy of
the indictment to the jury, but also stated that if the court
decided to give the jury a copy, it should be an accurate copy.
“The decision whether to strike language from an indictment
rests within the sound discretion of the district court.” United
States v. Emuegbunam, 268 F.3d 377, 394 (6th Cir. 2001). “A court
does not err in ignoring irrelevancies in or striking surplusage
from an indictment.” United States v. Grenoble, 413 F.3d 569, 577
(6th Cir. 2005)(citing United States v. McGuire, 744 F.2d 1197, 1206
(6th Cir. 1984)(holding that it was not error to delete the name of
a dismissed defendant from the indictment as surplusage)). Since
Bates was no longer a defendant in the case, it was permissible for
the district court to delete his name from the indictment as
surplusage. Defendant was not entitled to have Bates’s name remain
simply to bolster a duress defense which the trial court properly
ruled was inadequate to submit to the jury.
4
In addition, the district court also gave an instruction on deliberate
ignorance, which will be discussed infra. The concept of deliberate indifference
permitted the jurors to conclude that the element of knowledge had been proved
if they were convinced beyond a reasonable doubt that the defendant was aware of
a high probability that the packages contained controlled substances or cellular
phones, and that she deliberately closed her eyes to the obvious risk that she
was engaging in unlawful conduct. See United States v. Gullett, 713 F.2d 1203,
1212 (6 th Cir. 1983). The evidence presented in this case would have permitted
the jury to find that, at the very least, defendant acted with deliberate
ignorance.
22
The decision to submit a written copy of the indictment to the
jury is reviewed under an abuse of discretion standard. United
States v. Smith, 419 F.3d 521, 527 (6th Cir. 2005). A district
court acts within its discretion in reading the indictment to the
jury, a practice which helps to inform the jury of the charges
against the defendant. Id. at 530 (citing United States v.
Maselli, 534 F.2d 1197, 1202 (6th Cir. 1976)). However, if the
court furnishes a copy of the indictment to the jury, it must give
a limiting instruction “to the effect that the indictment is not to
be considered evidence of the guilt of the accused.” United States
v. Scales, 594 F.2d 558, 561-62 (6th Cir. 1979); United States v.
Baker, 418 F.2d 851, 852-53 (6th Cir. 1969).
Here, the court gave a limiting instruction, telling the jury:
“The indictment is not any evidence at all of guilt[]. It is just
the formal way that the government tells the defendants what crimes
they are accused of commit[ing]. It does not even raise any
[suspicion] of guilt[].” The court later referred to the counts in
the indictment by number while describing the charges contained in
the individual counts while noting that the government was only
required to prove an agreement to commit one of the crimes
described in the conspiracy count, and while instructing the jury
that the government was required to prove only one of the overt
acts alleged in the indictment. These references did not convert
the indictment into evidence, but rather assisted the jury in
distinguishing the eight counts in the indictment and the
instructions relevant to each. The district court did not abuse
its discretion in providing the jury with a redacted copy of the
indictment.
23
E. Jury Instructions
1. Instructions on Knowledge and Deliberate Ignorance
Defendant argues that the district court erred in giving
instructions which allegedly led the jury to believe that it need
not find that defendant knew that the contents of the packages
contained a controlled substance. Although the defendant’s
arguments are unclear, the gist appears to be that the trial court
should have told the jury that in order to convict on the
possession counts, the jury had to find that defendant knew that
the packages contained heroin and marijuana specifically.
The district court’s choice of jury instructions is reviewed
according to an abuse of discretion standard. United States v.
Beaty, 245 F.3d 617, 621 (6th Cir. 2001). In reviewing jury
instructions, the test is whether the charge, taken as a whole,
fairly and adequately submits the issues and applicable law to the
jury. United States v. Layne, 192 F.3d 556, 574 (6th Cir. 1999).
Trial courts have broad discretion in drafting jury instructions.
United States v. Prince, 214 F.3d 740, 761 (6th Cir. 2000). The
charge must be considered as a whole. Id.
Defendant complains that the trial court did not tell the
jurors that they were required to find that the defendant knew the
packages contained heroin and marijuana. This was not error. As
previously stated, the government is only required to prove that
the defendant knew that the substance was some type of controlled
substance. Villarce, 323 F.3d at 439. The district court also
gave a general instruction on deliberate ignorance which applied to
all of the charges in the case:
Next I want to explain something about proving a
defendant’s knowledge. No one can avoid responsibility
24
for a crime by deliberately ignoring the obvious. If you
are convinced that the defendant deliberately ignored a
high probability that the packages contained controlled
substances and/or cellular phones, then you may find that
she knew the packages contained controlled substances
and/or cellular phones. But, to find this, you must be
convinced beyond a reasonable doubt that the defendant
was aware of a high probability that the packages
contained controlled substances and/or cellular phones,
and that the defendant deliberately closed her eyes to
what was obvious. Carelessness, or negligence, or
foolishness on her part is not the same as knowledge, and
it is not enough to convict. This, of course, is all for
you to decide.
This instruction basically mirrored Sixth Circuit Pattern Jury
Instruction 2.09, which was upheld in United States v. Mari, 47
F.3d 782, 785 (6th Cir. 1995). Based on the evidence, this
instruction was appropriate. See United States v. Springer, 262
Fed.App’x 703, 706 (6th Cir. Feb. 1, 2008)(upholding instruction on
deliberate ignorance in case involving deputy jailor transporting
packages containing drugs to inmate in exchange for payments of
$1,000 on two occasions).
2. Supplemental Instructions
During deliberations, the jury sent a note to the judge asking
a “Question on Count 7.” The jury wrote, “In order to be convicted
of possession with intent to distribute, would the defendant have
to know exactly or in exact detail what they possess. For example,
marijuana or knowingly possess that specific substance.” As to
Count 8, the jury also noted, “Also, we need the definition of ‘to
wit’ within the context it is used.” Count 8 charged defendant
with attempting to provide prohibited items to an inmate, “to wit,
the controlled substances heroin and marijuana, and two cellular
telephones.” The government requested that the jury be told in
25
response that the defendant does not have to know the exact nature
of the substance, but rather simply that it is a controlled
substance. Defense counsel objected to any additional instructions
being given, and suggested that the jury be told to re-read the
previous instructions.
The district court wrote in response to the question on Count
7: “The government need not prove that the defendant knew the type
and amount of a controlled substance that she possessed; the
government need only show that the defendant knew that she
possessed some controlled substance.” In response to the question
on Count 8, the court wrote: “In this context ‘to wit’ means ‘that
is to say.’”
Defendant argues that the jury’s request for a definition of
the term “to wit” demonstrated that the jury was confused about
whether defendant had to have knowledge that the packages contained
a controlled substance. However, that argument reads too much into
the question. The jury simply requested a definition of the
meaning of the phrase “to wit” and the district court provided that
definition. Defendant further argues that since the trial court
did not specifically refer to marijuana in answering the question
regarding Count 7, the jury could have concluded that the cell
phones were a controlled substance. This argument is not well
taken in light of the court’s previous instructions on the elements
of Count 7, which told the jurors that they had to find that the
defendant “knowingly and intentionally possessed a mixture or
substance containing a detectable amount of marijuana, a Schedule
I controlled substance” and defined “controlled substance” as “a
drug or other substance included in the Schedule I of the federal
26
drug laws, and would include marijuana.”
3. Rule 43 Error
Defendant also raises as error the fact that the judge drafted
a written response to the jury’s questions and had a court security
officer deliver the response to the jury rather than returning the
jury to the courtroom for additional instructions. Defense counsel
did not object to this procedure at trial. Since there was no
objection, the convictions may be reversed only if the manner of
transmitting the supplemental instructions constituted plain error.
United States v. Combs, 33 F.3d 667, 669 (6th Cir. 1994). Plain
error requires a finding that, taken as a whole, the jury
instructions were so clearly erroneous as to likely produce a grave
miscarriage of justice. Id.
Pursuant to Fed.R.Crim.P. 43, “[t]he defendant shall be
present at ... every stage of the trial[.]” Fed.R.Crim.P. 43(a).
Therefore, “it is settled law that the district court is required
to follow the same procedure in giving supplemental instructions as
in giving original instructions.” Combs, 33 F.3d at 669. The
court must respond to the jury’s question in open court and in the
presence of the parties and counsel for both sides. Id. However,
any violation of Rule 43 must be considered together with
Fed.R.Crim.P. 52(a), which provides that harmless error is to be
disregarded. United States v. Harris, 9 F.3d 493, 499 (6th Cir.
1993)(violation of Rule 43 will not result in reversal if there is
no reasonable possibility of prejudice).
In this case, there was a technical violation of Rule 43
because the jury was not brought back into the courtroom; rather,
the court sent the response to the jury’s questions in writing.
27
However, the record indicates that the defendant and all counsel
were present in the courtroom after the jury’s note was received by
the court, and the court heard arguments from counsel in the
presence of the defendant concerning what response should be given.
Counsel were informed of the contents of the judge’s note before it
was given to the jury and had the opportunity to raise objections.
Thus, this is not a case where the judge acted ex parte, with no
input from the parties or counsel, in answering the jury’s
questions. The responses of the court to the jury’s questions were
brief and correct. Under these circumstances, defendant cannot
show that she suffered any prejudice because the jury was not
physically returned to the courtroom to receive the answers to the
questions.
F. Defense Attempts to Call Kenneth Bates as a Witness
1. Prosecutorial Misconduct
Defendant argues that she was unable to call Kenneth Bates as
a witness in support of her duress defense because of alleged
prosecutorial misconduct. A defendant’s right to present his or
her own defense witnesses constitutes “a fundamental element of due
process.” Washington v. Texas, 388 U.S. 14, 19 (1967); Johnson v.
Bell, 525 F.3d 466, 480 (6th Cir. 2008). Prosecutorial and judicial
actions aimed at discouraging defense witnesses from testifying may
deprive a defendant of this right. United States v. Roach, 502
F.3d 425, 437 (6th Cir. 2007). Governmental conduct must amount to
a substantial interference with a witness’s free and unhampered
determination to testify before a violation of due process or the
Sixth Amendment may be found. United States v. Pierce, 62 F.3d
818, 833 (6th Cir. 1995). Even when interference occurs, a
28
violation of a defendant’s right to call witnesses is subject to
harmless-error analysis. United States v. Foster, 128 F.3d 949,
953 & n. 4 (6th Cir. 1997).
The fact that a witness decides to invoke his or her Fifth
Amendment right not to testify does not deny the defendant seeking
to call that witness a fair trial. “Washington v. Texas does not
hold that a defendant has the right to present any and all
witnesses.” Davis v. Straub, 430 F.3d 281, 290 (6th Cir. 2005).
As the Supreme Court stated in Washington, “Nothing in this opinion
should be construed as disapproving testimonial privileges, such as
the privilege against self-incrimination[.]” Id., 388 U.S. at 23
n. 21.
During trial, counsel for defendant informed the court that he
was planning on calling Kenneth Bates as a witness. The government
had previously filed a motion to dismiss the case against Bates on
January 30, 2007, on the ground that the government did not feel
that it could meet its burden of proof beyond a reasonable doubt
against Bates at that time. The motion to dismiss was granted on
February 1, 2007, although the court did not specify whether the
dismissal was with or without prejudice.
After defense counsel revealed his intention to call Bates as
a defense witness, the district court determined that the Rule 48
dismissal of the charges against Bates was a dismissal without
prejudice, noting that the court did not believe that the
government sought the dismissal for some kind of improper purpose.
Bates was examined in camera after being given the opportunity to
confer with counsel. He refused to answer questions, invoking his
Fifth Amendment privilege on the advice of his advisory attorney.
29
The government indicated that it might re-indict Bates based on his
testimony. Based on the questions posed by defense counsel, the
district court ruled that Bates could invoke his Fifth Amendment
privilege.
Defendant argues that the government engaged in misconduct by
dismissing the charges against Bates, then advocating that the
dismissal was without prejudice. Defendant has not shown how the
dismissal, in itself, interfered in any way with her plan to call
Bates as a witness. In regard to the government’s argument that
the dismissal should be without prejudice, this court has noted
that the government is normally free to dismiss one indictment
under Rule 48(a) and bring another indictment based on further
development of the case. United States v. Newsome, 887 F.2d 1088
(table), 1989 WL 123235 (6th Cir. Oct. 17, 1989)(citing United
States v. Mendenhall, 597 F.2d 639, 641 (8th Cir. 1979)). The
primary purpose of Rule 48(a) is the “protection of the defendant’s
rights ... ‘to prevent harassment of a defendant by charging,
dismissing and re-charging without placing a defendant in
jeopardy.’” United States v. Salinas, 693 F.2d 348, 351 (5th Cir.
1982)(quoting United States v. Cox, 342 F.2d 167, 171 (5th Cir.
1965)). Under Rule 48(a), courts must grant prosecutors leave to
dismiss charges unless dismissal is “clearly contrary to manifest
public interest.” Rinaldi v. United States, 434 U.S. 22, 30
(1977); United States v. Robertson, 45 F.3d 1423, 1437 n. 14 (10th
Cir. 1995)(courts are vested only with limited supervisory power of
prosecutorial charging decisions specifically under Rule 48(a)).
As the district court found, there is nothing in the record to
suggest that the government moved to dismiss the charges against
30
Bates for an improper purpose. There is no indication in the
record that Bates, the person Rule 48 was designed to protect, ever
objected to the dismissal of the indictment. Although the original
order did not specify that the dismissal was without prejudice, the
district court noted that dismissal pursuant to Rule 48(a) “is
presumed [to be] without prejudice unless the order specifically
notes otherwise.” (Citing United States v. Ortega-Alvarez, 506
F.2d 455, 458 (2d Cir. 1974)). The district court further
concluded that since the government had never presented any proof
against Bates, jeopardy had not attached, citing Dortch v. United
States, 203 F.2d 709, 710 (6th Cir. 1953)(“It is also settled law
that a nolle prosequi and a dismissal without prejudice do not bar
a second prosecution for the same offense, inasmuch as such
terminations are not tantamount to acquittal.”).
Counsel for the government noted during a conference with the
court that “the probability, the very real probability exists that
if Mr. Bates takes the stand and is subject to direct and then
cross-examination, he may well fill in the blanks, so to speak, or
give the Government additional information” which would warrant
charges being brought against him. The court then arranged for
Bates, who had been representing himself, to consult with his
advisory counsel. The court then permitted defendant’s counsel to
conduct a voir dire examination of Bates, and Bates refused to
answer the questions, invoking his Fifth Amendment right not to
incriminate himself. The government then reiterated its position
to the court on the privilege issue, noting that “the United States
may well, based on what they hear from this witness, revisit and
perhaps re-indict[.]” The decision to re-indict Bates if he
31
provided new evidence during his testimony was a matter within the
government’s discretion. There is no evidence that the government
engaged in threatening behavior or intimidated Bates in any way to
discourage him from testifying.
The instant case is similar to Davis. In that case, the
prosecutor requested a sidebar with the judge and informed the
court that the witness was a suspect and should be informed of his
constitutional rights. 430 F.3d at 287. The judge questioned the
witness briefly and appointed counsel to advise the witness. Id.
The court stated, “Neither the prosecutor’s nor the judge’s conduct
was unconstitutional, especially considering the ethical
obligation, imposed on prosecutors by the ABA’s model guidelines,
to” advise a witness of his or her rights against self-
incrimination. Id., citing ABA Standards for the Administration of
Criminal Justice § 3-3.2(b). This court upheld the state courts’
determination that the prosecutor did not intimidate the witness
into invoking the privilege. Id.
In this case, defendant has failed to show evidence of
governmental conduct amounting to a “substantial interference with
a witness’s free and unhampered determination to testify[.]” Roach,
502 F.3d at 437. The district court’s decision to permit Bates to
invoke his Fifth Amendment right not to testify was not erroneous.
Finally, even assuming that defendant was improperly denied Bates’s
testimony, any error was harmless because it is not clear that
Bates’s testimony would have supported her duress defense. The
record demonstrates that defendant would have been unable to
establish a defense of duress even if Bates’s testimony was
favorable to her defense.
32
2. Refusal to Grant Immunity
Defendant argues that Bates should have been granted immunity
so that she could call him as a witness. After Bates indicated
that he would invoke his Fifth Amendment right not to testify,
counsel for defendant requested that the trial court grant Bates
immunity. The court concluded that it did not have the authority
to grant witness immunity, and the government indicated that it was
not prepared to grant immunity because it might decide to re-indict
Bates depending on his testimony.
Defendant’s challenge to the decision of the prosecution and
the court not to grant immunity to Bates is without merit. See
Emuegbunam, 268 F.3d at 401. “No court has authority to immunize
a witness.” Pillsbury Co. v. Conboy, 459 U.S. 248, 261 (1983);
United States v. Talley, 164 F.3d 989, 997 (6th Cir. 1999)(district
court is without authority to grant immunity to a witness who
asserts his Fifth Amendment privilege or to force the government to
do so). Rather, 18 U.S.C. §6003 gives the executive branch sole
authority to grant use immunity to a witness; it does not require
the government to grant a defense witness immunity. United States
v. Mohney, 949 F.2d 1397, 1401 (6th Cir. 1991).
Defendant argues that Bates’s exculpatory testimony was
essential to an effective defense, and that this outweighed the
government’s interests in declining to offer immunity. However,
this court, with one narrow exception,5 has rejected the effective
defense exception. Emuegbunam, 268 F.3d at 401. This court has
5
The judicial remedy of compelled immunity may be appropriate where the
government’s selective grant of immunity to its own witnesses while denying
immunity to defense witnesses might deprive a defendant of a fair trial. Talley,
164 F.3d at 997. No such selective grant of immunity occurred in this case.
33
also noted, without deciding the issue, that immunity may also be
warranted to remedy prosecutorial misconduct where the defendant
meets “the high threshold” of establishing that the prosecution has
deliberately distorted the judicial fact-finding process. Id.
However, no such showing of misconduct has been made in this case.
In addition, “this theory allows the prosecution to refuse to grant
immunity to a defense witness when it does not wish to hinder a
future criminal prosecution of the witness.” Id. In Emuegbunam,
the government informed the district court that it intended to
leave open the possibility of criminal liability in the event that
the witness perjured himself or implicated himself in additional
drug transactions. Id. The government made a similar statement to
the court in this case.
The district court did not err in declining to grant Bates
immunity.
G. Denial of Motion for a New Trial
Defendant argues that the district court erred in denying her
motion for a new trial. The denial of a motion for a new trial is
reviewed for abuse of discretion. United States v. Dupree, 323
F.3d 480, 484 (6th Cir. 2003). This court will not reverse absent
a clear abuse of discretion. United States v. Pierce, 62 F.3d 818,
823 (6th Cir. 1995). The defendant bears the burden of proving that
a new trial should be granted. Id. Claims of prosecutorial
misconduct are reviewed for clear error. Id.
In her motion for a new trial, defendant argued that she was
deprived of a fair trial by the government’s introduction into
evidence of the plea agreements of Halliburton, Clady McGhee and
Personne McGhee and the government’s assertion of the possibility
34
of re-indicting Bates depending on his testimony, which allegedly
prompted Bates’s invocation of his Fifth Amendment right not to
testify. The district court denied the motion by order filed on
June 7, 2008. The court adhered to its previous ruling that the
government was permitted to question its witnesses concerning their
plea agreements, and noted that the appropriate limiting
instructions were given.
The trial court also rejected the defendant’s argument that
the government had dismissed the charges against Bates so that he
would be unavailable as a witness. The court noted that “there is
no evidence that the government moved to dismiss Kenneth Bates for
any reason other than an inability to meet their burden of proof at
trial.” The court concluded that the dismissal “was presumably
without prejudice to potential re-indictment of Mr. Bates” and that
therefore he had a Fifth Amendment right not to testify. The trial
court also observed that there was no evidence that Bates would
have provided testimony consistent with defendant’s duress defense,
and that, in fact, defendant had previously moved for severance of
her case from that of Bates due to antagonistic defenses. The
court stated that since Bates had maintained in pretrial
proceedings and pleadings that he and defendant had a consensual
intimate relationship and that he never threatened her in any way,
he could have been prosecuted for perjury if he had testified in
support of her duress defense, and was therefore entitled to invoke
his Fifth Amendment privilege. Finally, the court concluded that
since defendant failed to meet her preliminary burden of producing
sufficient evidence of the “imminence” or “lack of a reasonable
legal alternative” elements of the duress defense, she was not
35
prejudiced by the inability to call Bates as a witness.
As previously discussed above, these rulings were correct, and
the trial court did not err in denying defendant’s motion for a new
trial.
H. Cumulative Error
Defendant argues that the alleged cumulative errors during
trial warrant reversal of her convictions. A defendant may “show
that the combined effect of individually harmless errors was so
prejudicial as to render his trial fundamentally unfair.” United
States v. Trujillo, 376 F.3d 593, 614 (6th Cir. 2004); see also
United States v. Hines, 398 F.3d 713, 719 (6th Cir. 2005)(“[T]he
cumulative effect of individual errors may result in a trial
setting that is fundamentally unfair.”). However, the cumulative-
error analysis permits the court to look only at actual errors, not
non-errors. United States v. Wheaton, 517 F.3d 350, 372 (6th Cir.
2008); Campbell v. United States, 364 F.3d 727, 736 (6th Cir.
2004)(while the cumulation of errors otherwise harmless may require
reversal of a conviction, the accumulation of non-errors cannot
collectively amount to a violation of due process).
In this case, aside from the technical violation of Rule 43,
there was no error in defendant’s trial. This harmless error is
insufficient to support reversal.
III. Conclusion
In accordance with the foregoing, the judgment of the district
court is hereby AFFIRMED.
36