                  NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                             File Name: 19a0526n.06

                                           No. 18-5614


                          UNITED STATES COURT OF APPEALS
                               FOR THE SIXTH CIRCUIT
                                                                                         FILED
 UNITED STATES OF AMERICA,                       )                                 Oct 16, 2019
                                                 )                            DEBORAH S. HUNT, Clerk
         Plaintiff-Appellee,                     )
                                                 )
 v.                                              )     ON APPEAL FROM THE UNITED
                                                 )     STATES DISTRICT COURT FOR THE
 CHAD H. PRODOEHL,                               )     EASTERN DISTRICT OF KENTUCKY
                                                 )
         Defendant-Appellant.                    )
                                                 )

BEFORE:        MERRITT, DAUGHTREY, and GRIFFIN, Circuit Judges.

       MARTHA CRAIG DAUGHTREY, Circuit Judge. After a jury convicted defendant Chad

H. Prodoehl of conspiracy to distribute a controlled substance (carfentanil) that resulted in death,

the district court sentenced him to serve 300 months in prison. On appeal, Prodoehl raises three

challenges to the validity of his conviction. He first alleges reversible error in the failure of the

district court to instruct the jury on the concept of withdrawal from a conspiracy. He next contends

that his punishment should not have been enhanced due to the death of another individual because

the jury convicted him only of conspiracy to distribute a controlled substance— a crime that was

complete “upon the agreement” that was the basis of the conspiracy. Finally, Prodoehl alleges that

various statements made during the prosecution’s closing argument were improper, including

some that allegedly impugned the integrity of defense counsel. We find no merit to any of the

allegations raised by Prodoehl and thus affirm the judgment of the district court.
No. 18-5614, United States v. Prodoehl


                     FACTUAL AND PROCEDURAL BACKGROUND

       At all times relevant to this appeal, Prodoehl was housed in the Boone County (Kentucky)

Work Camp while serving a sentence for various burglary and theft convictions. Nevertheless,

because he was eligible for work release, he was permitted to leave the camp on weekdays and on

Saturday mornings to travel in his own vehicle to work at Prodoehl Construction, a family business

operated by his father. Prodoehl admitted that he often returned to the work camp with “candy

bars, little fun-sized candy bars in packs of eight, hygiene products, toothbrush, toothpaste, soap,

shampoo” that he would sell to other inmates. Even though introduction of such items by an

inmate was not allowed, the guards would inspect the items upon Prodoehl’s return and allow him

to bring the goods into the camp, joking and “say[ing] that [he] can bring this stuff in as long as

[he] g[a]ve them a candy bar.”

       According to testimony accredited by the jury at Prodoehl’s trial, Prodoehl and two other

inmates—Gordon Wanser and Johnny Shelton—discussed having Prodoehl, while away from the

camp on work release, meet with a contact known to Shelton in order to obtain heroin and crack

cocaine to bring back to the camp with him. Prodoehl did in fact meet with Shelton’s drug source,

Terrill (Cuzo) Hill, in Cincinnati and drove around the city with him while Hill procured the

requested drugs. Prodoehl then wrapped the drug package in plastic wrap and blue tape and

concealed it in the front of his pants as he returned to the camp. Once inside the camp, Prodoehl

gave the package to Shelton in exchange for a payment of $40.

       Later, Wanser purchased from Shelton two grams of crack cocaine and a gram of what

Wanser believed was heroin but actually was carfentanil. Wanser, an admitted heroin user,

injected himself with the carfentanil and experienced such a strong reaction to the drug that he

vomited and collapsed in the work camp bathroom. Upon recovering, he and Timothy Marcum



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No. 18-5614, United States v. Prodoehl


then “sniffed a line of [the carfentanil] together.” Tragically, shortly thereafter, Marcum died from

what subsequently was diagnosed as acute carfentanil intoxication.

       Prodoehl, Shelton, Hill, and Wanser were indicted for conspiring to distribute and

conspiring to possess with intent to distribute carfentanil, a Schedule II controlled substance, in

violation of 21 U.S.C. §§ 841(a)(1) and 846, with Prodoehl’s, Shelton’s, and Hill’s violations

alleged to have resulted in the death of an individual. At his trial, Prodoehl did not dispute the fact

or the cause of Timothy Marcum’s death. He did testify in his own defense, however, that he never

brought drugs into the work camp, specifically not the carfentanil that Marcum ingested. Instead,

Prodoehl maintained that although he did meet with Hill in Cincinnati and drive him around the

city to procure controlled substances, the only drug he received from Hill was marijuana, which

Prodoehl later flushed down the toilet at a convenience market on his way back to the work camp.

He further claimed that the confession that the authorities extracted from him that implicated him

in the drug distribution was coerced and that his subsequent recantation of his inculpatory

statements was a true reflection of his lack of involvement in Marcum’s death.

       The jury, as was its prerogative, chose not to credit Prodoehl’s claims of innocence but

instead to credit the testimony and evidence put forth by the prosecution through its witnesses.

Having done so, the jurors voted unanimously to find Prodoehl guilty of the charged offense.

Although the United States Sentencing Guidelines suggested a prison sentence of 360-months-to-

life for the crime, the district court varied downward from that advisory range and sentenced

Prodoehl to 300 months—25 years—in prison.




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No. 18-5614, United States v. Prodoehl


                                                   DISCUSSION

Challenge to the Denial of a Requested Jury Instruction on Withdrawal from the Conspiracy

         Prior to trial, Prodoehl requested that the district court instruct the jury on the defense of

withdrawal from a conspiracy, in accordance with the language contained in Sixth Circuit Pattern

Criminal Jury Instruction 3.11A. The district court denied the request, and Prodoehl now asserts

that the refusal to give the proposed instruction constituted reversible error because he offered

testimony at trial that he had flushed drugs down a convenience store toilet, despite having agreed

to procure controlled substances for distribution within the work camp.

         We review a district court’s refusal to give a requested jury instruction for an abuse of

discretion.1 See, e.g., United States v. Volkman, 797 F.3d 377, 385 (6th Cir. 2015). “A refusal to

give requested instructions is reversible error only if (1) the instructions are correct statements of

the law; (2) the instructions are 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.

LaVictor, 848 F.3d 428, 454 (6th Cir. 2017).

         According to Prodoehl, Pattern Criminal Jury Instruction 3.11A correctly informs the

finders of fact that a step taken by a defendant “that is inconsistent with the purpose of the

conspiracy” and that “is communicated in a way that is reasonably likely to reach the other

members” of the agreement, if proven by a preponderance of the evidence, must lead to a verdict

of not guilty on a conspiracy charge.                See Sixth Circuit Pattern Criminal Jury Instruction

3.11A(2)(B) and (3). The district court, however, determined that the requested charge was not




          1
            The government insists that we should review this allegation only for plain error because Prodoehl did not
renew his pretrial request for the jury instruction at the close of trial. No such reiteration of the request for the
withdrawal instruction was necessary here, however, because after both the prosecution and the defense had rested
their cases, the district court again expressed its view that “withdrawal isn’t necessarily a defense to an 846 non-overt
act requirement conspiracy.”

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No. 18-5614, United States v. Prodoehl


proper because a Use Note to the pattern instruction states that the “instruction does not appear to

be appropriate when the conspiracy charged does not require proof of an overt act.”

       Prodoehl concedes that a conspiracy charged under 21 U.S.C. § 846 does not require the

government to prove that any defendant committed an overt act in furtherance of the conspiracy.

Instead, mere agreement among the co-conspirators and knowing participation in the conspiracy

are sufficient to establish guilt of the charge. See, e.g., United States v. Layne, 192 F.3d 556, 567

(6th Cir. 1999) (“In a § 846 conspiracy, the government must show the willful formation of a

conspiracy and the willful membership of the defendant in the conspiracy, but need not prove that

defendant committed an overt act in furtherance of the conspiracy.”). Nevertheless, Prodoehl

offers examples of scenarios in which a person charged with a § 846 conspiracy could withdraw

effectively and thus escape conviction.

       Recognition of the validity of Prodoehl’s argument suggesting the possibility of an

appropriate withdrawal from a conspiracy, however, does not lead to the conclusion that the

proposed jury instruction should have been given in this case. In fact, it is clear from the trial

testimony that Prodoehl’s proposed withdrawal charge does not fit with the evidence offered by

the parties. Specifically, the language of Pattern Criminal Jury Instruction 3.11A unambiguously

requires that a withdrawing co-conspirator not only perform “an act that is inconsistent with the

purpose of the conspiracy,” but also that the act be “communicated in a way that is reasonably

likely to reach the other members.” See also United States v. Landers, 39 F.3d 643, 645–46 (6th

Cir. 1994) (citing United States v. U.S. Gypsum Co., 438 U.S. 422, 464–65 (1978)). At no time

did Prodoehl communicate to Shelton, Wanser, and Hill that he was withdrawing from the

conspiracy.   Instead, trial testimony was uncontroverted that inmates in the camp awaited

Prodoehl’s return with drugs from his work stint, that the drugs obtained from Hill were distributed



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No. 18-5614, United States v. Prodoehl


within the camp, and that Prodoehl received $40 from Shelton for carrying out his duties pursuant

to the agreement. Under such circumstances, the district court did not abuse its discretion in

choosing not to instruct the jury in accordance with Sixth Circuit Pattern Criminal Jury Instruction

3.11A.

Challenge to the “Result-in-Death” Element in the Indictment

         Perhaps anticipating the conceptual and evidentiary problems with his first allegation of

error, Prodoehl argues for the first time on appeal that the count in the indictment alleging a

conspiracy that resulted in the death of Timothy Marcum cannot stand because the charged crime

of conspiracy was completed at the time of the agreement among Prodoehl, Shelton, Wanser, and

Hill. Alternatively, Prodoehl argues that the government failed to prove that any agreement

entered into by the co-conspirators included an understanding that death would result from the

criminal actions.

         Because Prodoehl failed to raise these challenges to the indictment before the district court,

our review of them is for plain error only. See, e.g., United States v. Armstrong, 920 F.3d 395,

400 (6th Cir. 2019). Consequently, in order to prevail in this argument, Prodoehl must establish

that there was (1) error (2) that was “plain,” (3) that affected substantial rights of the defendant,

and (4) that seriously affected the fairness, integrity, or public reputation of the judicial

proceedings. United States v. Olano, 507 U.S. 725, 732–36 (1993).

         For purposes of his argument, Prodoehl concedes that a conspiracy in contravention of the

provisions of 21 U.S.C. § 846 is considered to be complete upon the agreement of the parties. See

Layne, 192 F.3d at 567. The fact that criminal liability was established at the moment of agreement

does not mean, however, that the co-conspirators also are not liable for subsequent acts undertaken

in furtherance of the conspiratorial compact. In fact, the indictment in this matter specifically



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No. 18-5614, United States v. Prodoehl


alleges that the objectives of the § 846 conspiracy were both to distribute and to possess with intent

to distribute carfentanil, a violation of 21 U.S.C. § 841(a) that resulted in Marcum’s death. Thus,

contrary to Prodoehl’s assertions, the sole charge in the indictment in this case did not allege that

it was the completed agreement to distribute controlled substances that caused Marcum’s death.

Rather, the charging instrument clearly alleged that it was the distribution of the carfentanil—the

stated objective of the agreement—that resulted in the death. As argued by the government in its

appellate brief, Prodoehl was subject to the “death-results enhancement” of 21 U.S.C. § 841 not

because he entered into a conspiracy with other individuals to distribute carfentanil, but “because

death resulted from use of carfentanil he distributed” in furtherance of that conspiracy.

       Nor is the fact that Prodoehl did not envision that anyone would die from the drugs he

introduced into the work camp sufficient to exonerate him from the sentence enhancement. The

district court correctly instructed the jury in accordance with Sixth Circuit precedent and Sixth

Circuit Pattern Criminal Jury Instruction 14.02B(2)(C) that “[i]n order to establish that a death

resulted from [d]efendant’s conduct, the government need not prove that the death was foreseeable

to the defendant.” Volkman, 797 F.3d at 392.

       The indictment in this case and the instructions to the jury on how to evaluate the charge

in the indictment comported with circuit precedent and pattern jury instructions. Under such

circumstances, we cannot conclude that the district court committed plain error in approving the

jury’s verdict of guilt on the charge of conspiracy to distribute a controlled substance that caused

the death of another individual.

Challenge to the Propriety of the Government’s Closing Argument

       In his final issue on appeal, Prodoehl contends that portions of the closing arguments by

the prosecutor were so improper as to constitute violations of the Due Process Clauses of the Fifth



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No. 18-5614, United States v. Prodoehl


and Fourteenth Amendments to the United States Constitution. Specifically, Prodoehl suggests

that some comments offered by the government improperly insinuated not only that the defendant

fabricated testimony, but also that defense counsel played a major role in formulating the

statements made by Prodoehl at trial.

       The federal courts have “recognized that prosecutorial misconduct may so infec[t] the trial

with unfairness as to make the resulting conviction a denial of due process.” Greer v. Miller, 483

U.S. 756, 765 (1987) (citation and internal quotation marks omitted). See also United States v.

Crumpton, 824 F.3d 593, 618 (6th Cir. 2016). Even so, “[w]e afford wide latitude to a prosecutor

during closing argument, analyzing disputed comments in the context of the trial as a whole.”

United States v. Henry, 545 F.3d 367, 377 (6th Cir. 2008). Thus, when addressing allegations of

prosecutorial misconduct during closing argument, we employ a two-step analysis:

       [W]e first determine whether the challenged statements made by the prosecutor
       were improper. If the statements were improper, we then determine whether they
       constituted flagrant misconduct. To determine whether a prosecutor’s remarks
       constituted flagrant misconduct, we assess (1) whether the conduct and remarks of
       the prosecutor tended to mislead the jury or prejudice the defendant; (2) whether
       the conduct or remarks were isolated or extensive; (3) whether the remarks were
       deliberately or accidentally made; and (4) whether the evidence against the
       defendant was strong.

United States v. Bradley, 917 F.3d 493, 505 (6th Cir. 2019) (citations and internal quotation marks

omitted).

       Because defense counsel did not raise an objection to the government’s closing argument

at trial, however, we examine Prodoehl’s allegation of prosecutorial misconduct for plain error

only. See, e.g., Armstrong, 920 F.3d at 400. Even employing such deferential review, we still

may reverse a conviction if such misconduct is “exceptionally flagrant.” United States v. Carroll,

26 F.3d 1380, 1385 n.6 (6th Cir. 1994).




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No. 18-5614, United States v. Prodoehl


       Of the seven comments made by the prosecution during closing argument that Prodoehl

claims meet that exceptionally-flagrant threshold, four cannot even be considered improper, much

less flagrant. For instance, anticipating that the defense might argue that portions of a taped

interrogation that were not played for the jury might hide coercive tactics that could render an

inculpatory statement inadmissible, the government explained, “You heard every portion of that

recording that the defense wanted to play.” Far from intimating that defense counsel was

attempting to withhold important information from the finders of fact, the prosecution’s argument

informed the jury that nothing that would call the police procedures into question occurred during

the interrogation. Such an explanation does not come close to crossing the line into impropriety.

       Prodoehl suggests that two other comments made during closing argument constituted

improper personal attacks on or opinions of defense counsel—statements that “ha[ve] no place at

trial.” See United States v. Collins, 78 F.3d 1021, 1039 (6th Cir. 1996). In both instances, the

prosecutor made reference to cross-examination techniques utilized by defense counsel, and

although arguing that the tactics did not prove Prodoehl’s innocence of the charged offense, the

prosecutor did mention that defense counsel simply was providing zealous representation for his

client.2 Clearly, such argument is not improper.




       2
           These two segments of the government’s argument to the jury included the following statements:
       --- [T]he closest thing we saw to a coercive interrogation technique was during Mr. Schneider’s
       cross-examination of Officer Stidham and of Gordon Wanser. And don’t get me wrong, he wasn’t
       doing anything wrong. He was doing his job, and he was doing it well. He showed that he was
       angry. He disagreed with what was being said. He was yelling and saying you were just lying, you
       were doing this, you were tricking him. That’s Mr. Schneider doing his job. There’s nothing wrong
       with it.
       --- “This business about [co-conspirator Shelton’s wife] being a visitor that day and that she could
       have smuggled [the drugs] in during visitation simply doesn’t hold up. It’s the work of a very good
       lawyer pointing out something in the evidence that he thinks he can use to help his client.”



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No. 18-5614, United States v. Prodoehl


       Likewise, the government did not engage in improper argument in commenting on the

defendant’s demeanor on the witness stand. In attempting to persuade the jury to discredit

Prodoehl’s claims of innocence, the prosecutor stated, “He looked at you when he was talking

about his family and his sobriety, but he wouldn’t look at you when he was lying about not bringing

in the drugs. He would turn away, look at his lawyer.” Nothing in such an observation can be

construed as impugning the integrity of defense counsel.

       Three other statements made by the government during closing argument possibly could

be construed as improper suggestions that Prodoehl’s counsel played a part in fabricating a

defense. In relevant part, the prosecution argued:

       And when [Prodoehl] found out that lie wasn’t going to work, when his lawyer said,
       hey, in federal court, as long as you knew it was any kind of drug, you’re guilty,
       then he told a different lie. Oh, I was flushing it down.
       He never [mentioned that he was in fear when he met Hill in Cincinnati]. He never
       even said it two months later, when he met his lawyer and came up with the
       “flushing it down the toilet” defense.
       When his lawyer told him that [Prodoehl’s claim that he didn’t know what kind of
       drugs he was receiving from Hill] wouldn’t work, he went to “I flushed it away.
       And oh, by the way, the guy had a gun.”

       Even these statements, however, do not meet our circuit’s definition of flagrantly erroneous

argument. First, although the government did, on three occasions, tie a change in Prodoehl’s story

to a consultation with defense counsel, a close reading of the statements indicates that they were

neither misleading nor prejudicial. In each instance, the prosecutor made clear that it was

Prodoehl, not the defense attorney, who chose to alter the thrust of the defense. Moreover, that

change followed competent advice by trial counsel regarding the state of the law regarding the

conspiracy charge.

       Although the government appropriately concedes that the remarks were made deliberately

by the prosecutor, those three statements made during the course of a three-day trial hardly can be


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No. 18-5614, United States v. Prodoehl


considered “extensive.” Furthermore, the evidence amassed against Prodoehl was strong, with

only the defendant’s own denial of culpability offered to rebut the testimony of the government’s

witnesses.

       In short, and especially in light of the applicable standard governing our review of this

issue, we cannot conclude that, even if improper, the highlighted statements made by the

prosecution during closing argument were so flagrant as to necessitate a new trial. We thus find

Prodoehl’s allegation of prosecutorial misconduct to be without merit.

                                         CONCLUSION

       For the reasons set out in this opinion, we find no merit to the allegations of error advanced

by Prodoehl. We thus AFFIRM the judgment of the district court in its entirety.




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