United States v. Kendrick Flintroy ( 2022 )

NOT RECOMMENDED FOR PUBLICATION
File Name: 22a0539n.06
Case No. 22-5115
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
FILED
Dec 27, 2022
UNITED STATES OF AMERICA, ) DEBORAH S. HUNT, Clerk
)
Plaintiff-Appellee,
)
) ON APPEAL FROM THE
v.
) UNITED STATES DISTRICT
) COURT FOR THE EASTERN
KENDRICK LAMAR FLINTROY,
) DISTRICT OF KENTUCKY
Defendant-Appellant. )
) OPINION
Before: CLAY, GIBBONS, and McKEAGUE, Circuit Judges.
McKEAGUE, Circuit Judge. Defendant-Appellant Kendrick Lamar Flintroy appeals his
conviction for possession with intent to distribute fifty grams or more of methamphetamine, in
violation of 21 U.S.C. § 841(a)(1). On appeal, Flintroy argues that the prosecution plainly erred
by presenting extensive testimony raising a “community protection” argument during its direct
examination of Drug Enforcement Administration (DEA) Special Agent Jason Moore. Because
the prosecution’s direct examination of Moore and Moore’s corresponding testimony were proper,
the prosecution did not err, much less plainly err, and we affirm.
I
A. Background
At approximately 1:30 in the morning on December 7, 2020, Franklin County Sheriff’s
Office Deputy Phillip Ray observed a Chevrolet Impala merge onto I-64 in Frankfort, Kentucky.
Case No. 22-5115, United States v. Flintroy
Ray paced the vehicle at eighty-five miles per hour, fifteen miles over the interstate’s speed limit.
When it was safe to do so, Ray turned on his emergency lights and signaled for the vehicle to pull
over. The driver promptly moved toward the highway’s shoulder, but as the car came to a rolling
stop, the passenger—since identified as Defendant-Appellant Kendrick Flintroy—opened the
passenger door and sprinted away with a bag in each hand.
Ray immediately chased after Flintroy, repeatedly shouting “Police, stop.” Meanwhile, the
car—driven by Flintroy’s friend, Jack Page—sped off. Flintroy continued to run away from the
interstate, up an embankment, and toward a barbed wire fence. Upon reaching the fence, Flintroy
threw both bags to the other side and attempted to scale the barrier. When he was unsuccessful, he
doubled back toward the interstate. Shortly thereafter, Flintroy tripped and fell, at which point Ray
was able to deploy his taser, apprehend Flintroy, and take him into custody.
After effecting the arrest, Ray contacted the Frankfort Police Department to request that
they collect the two bags that had been thrown over the fence and into Frankfort city limits.
Frankfort Police Department Sergeant Patrick Brooks was among the officers dispatched to the
scene. When he arrived, he activated his body camera and searched the bags, discovering nine
vacuum-sealed packages. Brooks later testified that he recognized the packages’ contents to be
methamphetamine. In one of the bags, which was marked with the name “Kaleb F.”, the officers
discovered a credit or debit card bearing Flintroy’s name and a pair of infant’s socks. Notably,
Flintroy has a son named Kaleb who was less than two years old at the time.
The bags were booked into evidence and sent to a Drug Enforcement Administration
laboratory for testing. There, forensic chemists determined that the substance found in the bags
was 9,384 grams (roughly twenty pounds) of 95% pure methamphetamine hydrochloride and
dimethyl sulfone.
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Case No. 22-5115, United States v. Flintroy
A federal grand jury returned an indictment charging Flintroy with knowing and intentional
possession with intent to distribute fifty grams or more of methamphetamine, in violation of 21
U.S.C. § 841(a)(1). A jury trial was held in October 2021, and after two days of testimony, the
jury found Flintroy guilty. The district court sentenced Flintroy to 300 months’ imprisonment and
a five-year term of supervised release. Flintroy timely appealed.
B. The Challenged Testimony
At trial, the government called as witness DEA Special Agent Jason Moore. The
prosecution’s questioning of Moore is the subject of this appeal.
Moore was not involved in Flintroy’s arrest. Instead, he was called as an expert witness to
provide opinion testimony regarding general practices of the drug trade and whether the quantity
of drugs seized in this case suggests distributive intent. According to his testimony, Moore began
working as a DEA Special Agent in 2009. In that capacity, Moore and his colleagues are
responsible for conducting drug trafficking investigations, wherein they attempt “to develop cases
that involve either sophisticated drug trafficking organizations that operate and have a nexus to
[their] region, or individuals that have a significant community impact.” R. 69 at PID 618–19.
The government began its direct examination of Special Agent Moore by asking him a
variety of questions related to his qualifications, knowledge, and experience in the drug trafficking
field, such as his familiarity with controlled buys; the DEA’s use of search warrants in narcotics
investigations; the DEA’s reliance on local law enforcement agencies; the types and prices of drugs
he most commonly comes across as DEA Special Agent; any additional education, training, or
experience that enables him to understand the drug trafficking trade in Kentucky; and whether he
had previously testified in court. Notably, not one of these questions expressly called upon the jury
to protect the community by convicting Flintroy.
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The government proceeded to ask Moore if he was familiar with the terms “high-level
dealers” and “suppliers,” and whether Moore could “break down the drug trafficking trade or
further the scheme of how it works in those different levels.” R. 69 at PID 625. In response, Moore
differentiated between individual “street-level retailers,” more “mid-level folks . . . dealing with
ounce levels,” and those “on the top end of [the] spectrum” who deal in “pound quantities.” Id. at
626. According to Moore, the DEA generally goes “for the biggest fish,” and does not typically
target users. Id. at 629. The government then asked Moore to elaborate on the typical “use amount”
for methamphetamine, as well as methamphetamine’s average price by gram, ounce, and pound.
Only after the government laid this foundation with Agent Moore did it begin to question
him about the specifics of Flintroy’s case:
Q. Based on your training and experience given the weight of the narcotics that
were seized, were you able to form an opinion as to whether or not that amount was
consistent with drug trafficking, or what you’d see for personal use?
A. It is absolutely consistent with drug trafficking.
Q. And based on your experience as well, is the amount that was seized in this case
consistent with a lower level or a higher level narcotics trafficker?
A. For our area, that would be a very high-level trafficker.
R. 69 at PID 631–32.
II
Claims for prosecutorial misconduct are typically reviewed de novo. United States v.
Lawrence, 735 F.3d 385, 432 (6th Cir. 2013). But where, as here, “the defendant failed to object
during trial, the claim is reviewed for plain error.” Id. “Plain error has three elements: ‘(1) error,
(2) that is plain, and (3) that affect[s] substantial rights.’” United States v. Acosta, 924 F.3d 288,
299 (6th Cir. 2019) (quoting Johnson v. United States, 520 U.S. 461, 467 (1997)). An error “affects
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substantial rights” when it has an effect on the outcome of the case. United States v. Walker, 761
F. App’x 547, 551 (6th Cir. 2019).
In reviewing claims of prosecutorial misconduct, this Court must first determine whether
the prosecutor’s comments—or, in this case, questions—were improper. Lawrence, 735 F.3d at
431. If we find the comments were improper, we must then consider whether they “were so flagrant
as to warrant reversal.” Id. at 431.
III
The crux of this appeal is whether prosecutorial misconduct plainly occurred during the
government’s direct examination of Special Agent Moore. Flintroy contends that the prosecutor’s
questioning of Moore implicitly introduced an impermissible “community protection” argument,
rendering his trial “fundamentally unfair.” Appellant’s Br. at 18. Although Flintroy fails to
concretely define what is meant by “community protection argument,” a summary of the concept
can be inferred from the cases he cites:
A prosecutor may not urge jurors to convict a criminal defendant in order to protect
community values, preserve civil order, or deter future lawbreaking. The evil
lurking in such prosecutorial appeals is that the defendant will be convicted for
reasons wholly irrelevant to his own guilt or innocence. Jurors may be persuaded
by such appeals to believe that, by convicting a defendant, they will assist in the
solution of some pressing social problem. The amelioration of society’s woes is far
too heavy a burden for the individual criminal defendant to bear.
United States v. Solivan, 937 F.2d 1146, 1153 (6th Cir. 1991) (quoting United States v. Monaghan,
741 F.2d 1434, 1441 (D.C. Cir. 1984)).
In essence, Flintroy argues that extensive testimony regarding Kentucky’s “war on drugs”
portrayed him as “one of the ‘biggest fish’ and a very high-level trafficker” and thus “a major
source of the drug problem in Kentucky.” Appellant’s Br. at 34. As a result, the argument goes,
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the government impermissibly suggested to the jury that convicting Flintroy would “protect the
community.” Id. For the following reasons, Flintroy’s argument lacks merit.
First, as a preliminary matter, the testimony elicited by the prosecutor was plainly proper
and admissible under both this Court’s precedent and the Federal Rules of Evidence. This Court
has consistently held that expert testimony establishing the modus operandi of drug trafficking
crimes “is admissible under Federal Rule of Evidence 702 because it assists the jury in
understanding the drug trade, an area which is ‘not within the experience of the average juror.’”
United States v. Meadows, 822 F. App’x 434, 437 (6th Cir. 2020) (quoting United States v.
Thomas, 74 F.3d 676, 682–83 (6th Cir. 1996)). Because jurors are not likely to understand complex
drug trafficking operations, or even the distinction between street-level dealers and high-level
suppliers, courts consistently admit expert testimony that is offered to explain “the quantity of
drugs consistent with distribution rather than personal use.” Meadows, 822 F. App’x at 438. Here,
Moore’s testimony not only helped to contextualize drug trafficking operations in Kentucky, but
it helped to establish why the quantity of drugs seized in this case was consistent with an intent to
distribute—an element of Flintroy’s charged offense.
Second, and more importantly, Flintroy’s assertion that the prosecutor made an
impermissible “community protection” argument is simply not borne out by the record. Indeed,
Flintroy fails to offer a single example of the prosecutor explicitly asking, or even encouraging,
the jury to convict the defendant in order to protect the broader Kentucky community. And there
is similarly no support for Flintroy’s assertion that such message was even implied by the
prosecutor’s questions. To the contrary, the prosecutor’s direct examination of Agent Moore was
limited to Moore’s qualifications, knowledge, and experience in the field, and was intended to
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contextualize drug trafficking operations in Kentucky and to explain drug quantities typically
associated with distributive intent.
Despite the lack of evidence in the record to support his prosecutorial misconduct claim,
Flintroy attempts to analogize his case to Solivan, wherein this Court held that a prosecutor’s
appeal to community conscience constituted reversible error. 937 F.2d at 1157. In that case, the
prosecutor stated during closing arguments:
What you’re listening to is a wholesale distributor of narcotics, cocaine discuss her
business affairs and complain about her busy schedule, the lack of good product
and the trouble she’s having getting this stuff up here now. And I’d submit to you,
folks, that she’s been caught now. And I’m asking you to tell her and all of the other
drug dealers like her—(defense counsel’s objection and Court’s response
omitted)—[t]hat we don’t want that stuff in Northern Kentucky and that anybody
who brings that stuff in Northern Kentucky . . .
Id. at 1148 (emphasis and alterations in original). The district judge sustained defense counsel’s
objection and admonished the jury by stating the following:
At the conclusion . . . certain remarks were made in the closing argument of the
prosecutor to which this Court has sustained an objection and will admonish you
not to consider them. Do not consider the urgings by the prosecutor to send
messages to anybody. We’re not here to send messages to anybody. We’re here to
try this defendant’s case.
Id. at 1149.
On appeal, this Court concluded that the prosecutor’s remarks had been “deliberately
injected into the proceedings to incite the jury against defendant” and that “[t]he prosecutor . . .
went beyond stating the obvious, [going] so far as to urge the jury to send a message to the
community, to defendant and ‘all of the drug dealers like her’ by convicting defendant.” Id. at
1154–55. Given the inflammatory nature of the statements, this Court reversed the defendant’s
judgment and sentence. Id. at 1157.
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But Solivan is easily distinguishable. First, the defense counsel in Solivan objected to the
prosecutor’s statements at trial. De novo review was thus the appropriate standard on appeal. Here,
however, Flintroy’s counsel made no such objection below. Plain error review therefore applies.
Lawrence, 735 F.3d at 432. Second, and more importantly, the prosecutor in Solivan made an
explicit appeal to the jury, asking that they send a message: “I’m asking you to tell her and all of
the other drug dealers like her . . . that we don’t want that stuff in Northern Kentucky.” Solivan,
937 F.2d at 1148. The prosecutor in Flintroy’s case made no such remark during the direct
examination of Agent Moore—or at any other point during Flintroy’s trial.
In United States v. Cleveland, a panel of this Court considered that fact fatal to an
appellant’s similar claim. 907 F.3d 423, 438 (6th Cir. 2018). There, during closing arguments, the
prosecutor stated: “This is a serious day for the Defendant and a serious day for the United States
because ten kilograms of cocaine is sitting here in bricks. But if this had gotten into the community,
lives would have been at stake.” Id. at 437. On appeal, this Court held that the prosecutor’s remarks
did not constitute prosecutorial misconduct, concluding that “[t]he statement was not a request to
‘send a message.’ Instead, the government was referencing the common fact that drugs are a
community problem without asking the jury to fix or combat that problem through a verdict. . . .
In other words, the government’s statement does not rise to the level of ‘do your duty’ and/or ‘send
a message with your verdict[.]” Id. at 438. Likewise, here, not one of the prosecutor’s questions
during the direct examination of Agent Moore amounted to a request that the jury send a message
by convicting Flintroy. If the prosecutor’s remarks in Cleveland, which expressly referenced a
danger to the community, do not constitute prosecutorial misconduct, the prosecutor’s conduct in
this case—for which no evidence of any reference to community protection can be found—cannot
amount to reversible error.
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The prosecutor’s direct examination of Agent Moore was, as the government puts it,
“standard fare.” See Appellee’s Br. at 6. As an expert witness, Moore offered opinion testimony
that stemmed from his many years of experience in law enforcement, and the prosecutor’s direct
examination of Moore was limited to that expertise. At no point did the prosecutor expressly or
impliedly call upon the jury to convict Flintroy in order to protect the community. On appeal,
Flintroy bears the burden of demonstrating that the prosecutor’s conduct seriously affected the
fairness of the proceedings, and he cannot meet that burden.1
IV
For the foregoing reasons, we AFFIRM.
1
Because we find that the prosecutor’s conduct was proper, we need not assess whether that conduct was flagrant.
See Lawrence, 735 F.3d at 431–32.
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