                                RECOMMENDED FOR FULL-TEXT PUBLICATION
                                     Pursuant to Sixth Circuit Rule 206
                                             File Name: 05a0230p.06

                       UNITED STATES COURT OF APPEALS
                                        FOR THE SIXTH CIRCUIT
                                          _________________


                                                      X
                                 Plaintiff-Appellee/ -
 UNITED STATES OF AMERICA,

                                  Cross-Appellant, -
                                                       -
                                                       -
                                                           Nos. 03-6592/6593/6594/6595;

                                                       ,
                                                           04-5031/5033/5034/5035/5036/
           v.                                           > 5037
                                                       -
                                                       -
                                                       -
 BOBBY GIBSON (03-6592/6595; 04-5031), ANDREW

                                                       -
 S. HICKERSON (03-6595; 04-5037), WILLIAM R.

                                                       -
 MALLICOAT (03-6593/6595; 04-5033), KENNETH
                                                       -
 TUCKER (03-6595; 04-5035/5036), and
                                                       -
 KENAMERICAN RESOURCES, INC. (03-6594/6595;
 04-5034),                                             -
                            Defendants-Appellants/ -
                                  Cross-Appellees. -
                                                       -
                                                      N
                        Appeal from the United States District Court
                    for the Western District of Kentucky at Owensboro.
                  No. 02-00018—Joseph H. McKinley, Jr., District Judge.
                                           Argued: April 20, 2005
                                    Decided and Filed: May 24, 2005
    Before: SUHRHEINRICH and GILMAN, Circuit Judges; ACKERMAN, District Judge.*
                                            _________________
                                                  COUNSEL
ARGUED: R. Kent Westberry, LANDRUM & SHOUSE, Louisville, Kentucky, Allen W.
Holbrook, SULLIVAN, MOUNTJOY, STAINBACK & MILLER, Owensboro, Kentucky, R.
Kenyon Meyer, DINSMORE & SHOHL, Louisville, Kentucky, Charles E. Ricketts, Jr., RICKETTS
& PLATT, Louisville, Kentucky, for Defendants. Terry M. Cushing, ASSISTANT UNITED
STATES ATTORNEY, Louisville, Kentucky, for Plaintiff. ON BRIEF: R. Kent Westberry,
Caroline P. Clark, LANDRUM & SHOUSE, Louisville, Kentucky, Allen W. Holbrook,
SULLIVAN, MOUNTJOY, STAINBACK & MILLER, Owensboro, Kentucky, R. Kenyon Meyer,
DINSMORE & SHOHL, Louisville, Kentucky, Charles E. Ricketts, Jr., RICKETTS & PLATT,
Louisville, Kentucky, John E. Jevicky, DINSMORE & SHOHL, Cincinnati, Ohio, for Defendants.



        *
          The Honorable Harold A. Ackerman, United States District Judge for the District of New Jersey, sitting by
designation.


                                                        1
Nos. 03-6592/6593/6594/6595;               United States v. Gibson et al.                     Page 2
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Terry M. Cushing, Randy W. Ream, ASSISTANT UNITED STATES ATTORNEYS, Louisville,
Kentucky, for Plaintiff.
                                       _________________
                                           OPINION
                                       _________________
        RONALD LEE GILMAN, Circuit Judge. KenAmerican Resources, Inc. (the operator of a
Kentucky coal mine), mine superintendents Bobby Gibson and William Mallicoat, and mine
foremen Andrew Hickerson and Kenneth Tucker were indicted for conspiracy, making false
statements to a federal agency, concealing material facts from a federal agency, and violating the
Mine Safety and Health Act (MSHA), 30 U.S.C. §§ 801-25. After they were convicted by a jury,
the district court imposed varying sentences on the five defendants. It also granted the defendants’
motions to arrest judgment and for judgment of acquittal on Count 28 and part of Count 1, but
rejected a number of other challenges to both the convictions and the sentences. For the reasons set
forth below, we AFFIRM the judgment of the district court.
                                       I. BACKGROUND
        In May of 2002, a grand jury returned a 28-count indictment against KenAmerican for
improper ventilation practices and the illegal use of two continuous mining machines (CMMs) at
its Paradise No. 9 coal mine in Muhlenberg County, Kentucky. The indictment also named mine
superintendents Gibson and Mallicoat, as well as mine foremen Hickerson and Tucker. Specifically,
the indictment charged the defendants with conspiracy, making false statements to a federal agency,
concealing material facts from a federal agency, and violating the MSHA.
         A jury convicted the defendants on all counts relevant to this appeal. After trial, the
defendants filed motions to arrest judgment, for a new trial, and for a judgment of acquittal. The
district court granted the defendants’ motions to arrest judgment and for acquittal on Count 28,
which charged the defendants with concealing “the existence of willful violations of the MSHA.”
It also granted the defendants’ motions for a judgment of acquittal on “that portion of Count 1 which
charges Defendants with conspiracy to commit the crime of concealing a material fact by trick,
scheme, or device.”
        At sentencing, the government requested a number of upward adjustments for each of the
defendants. First, it asked the district court to increase KenAmerican’s culpability score and
Gibson’s offense level because the crime involved “the conscious or reckless risk of death or serious
bodily injury.” United States Sentencing Commission, Guidelines Manual (USSG), § 2B1.1(b)(11).
The court, however, refused to do so, reasoning that the defendants had not intended to place the
miners at risk of death or serious bodily injury.
        Second, the government requested an upward adjustment of Hickerson’s, Mallicoat’s, and
Tucker’s offense levels based on their role in the crimes. Again the district court refused the
enhancement. The court determined that increasing the sentences for the individual defendants’
aggravating roles in the offense would constitute double counting. It explained that, because only
“operators” can be charged with violating mine safety laws, the base offense level already reflected
the leadership roles of the individual defendants.
        Third, the government requested that the district court increase Gibson’s offense level
because Gibson had lied to the MSHA inspectors about the status of one of the CMMs. The court
refused to do so, noting that Gibson’s statements did not “significantly obstruct[] or impede[] the
official investigation or prosecution of the instant offense.”
Nos. 03-6592/6593/6594/6595;                United States v. Gibson et al.                      Page 3
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        In the end, the district court sentenced Gibson and Mallicoat to two years’ probation with
a special condition of six months of home detention, imposed a $5,000 fine, and required them to
pay the costs of electronic monitoring. Gibson was also ordered to pay the cost of the first year of
supervision. The court sentenced Hickerson and Tucker to two years’ probation with a special
condition of four months’ home detention, imposed a $3,000 fine, and required them to pay the costs
of electronic monitoring.
        KenAmerican was ordered to a pay fine of $306,000. Against the wishes of the government,
the district court decided not to base the amount of the fine on a calculation of KenAmerican’s
pecuniary gain resulting from its illegal conduct. The court determined that, even though
KenAmerican had profited from its illegal activity, determining the precise amount of the gain
would unduly complicate and prolong the sentencing process. Instead, the court imposed a fine
derived from the Offense Level Fine Table promulgated in Sentencing Guidelines § 8C2.4.
       The government also requested that KenAmerican’s culpability score be increased on the
ground that KenAmerican had acted intentionally and obstructed justice. Although the district court
declined to impose an increase on this basis, it did depart upward pursuant to Sentencing Guidelines
§ 8C4.2 because of KenAmerican’s reckless conduct in disregarding mandatory health and safety
standards. It determined that, with an offense level of 14 and a culpability score of 9, the appropriate
fine was between $153,000 and $306,000. The court then sentenced KenAmerican to pay the
maximum fine of $306,000.
         On appeal, the government argues that the district court erred in granting the defendants’
motions to arrest judgment and for judgment of acquittal on Counts 28 and part of Count 1. It also
raises a number of issues related to the defendants’ sentences. The defendants cross-appeal, arguing
that the district court erred in not granting their motions for judgment of acquittal and/or to dismiss
on many of the remaining counts. None of the defendants, however, contest their sentences in the
event that we sustain the counts on which they were convicted.
                                           II. ANALYSIS
A.     The district court did not err in determining that Count 28 failed to allege an offense
        The district court granted KenAmerican’s, Gibson’s, and Mallicoat’s motions to arrest
judgment on the grounds that Count 28 of the indictment did not allege an offense. Count 28 alleges
that the defendants
       did knowingly and willfully conceal, and cover up a material fact by trick, scheme,
       and device in a matter within the jurisdiction of the Executive Branch of the United
       States, that is, MSHA, in that the defendants alerted mine personnel on the working
       face of Paradise #9 mine that MSHA inspectors had entered mine property and
       would be inspecting the mine face and that the defendants did thereby conceal and
       cover up from MSHA the existence of willful violations of the Act.
       1.      Standard of review
       The sufficiency of an indictment is reviewed de novo. United States v. Gatewood, 173 F.3d
983, 986 (6th Cir. 1999). We must arrest judgment if the indictment does not charge an offense.
Fed. R. Crim. P. 34(a). When a challenge to an indictment is brought for the first time after the
defendant has been convicted, the indictment is “construed liberally in favor of its sufficiency.”
United States v. Gibson, 513 F.2d 978, 979 (6th Cir. 1975).
Nos. 03-6592/6593/6594/6595;                United States v. Gibson et al.                         Page 4
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       2.      Allegation of an offense
       Pursuant to 18 U.S.C. § 1001(a),
       whoever, in any matter within the jurisdiction of the executive, legislative, or judicial
       branch of the Government of the United States, knowingly and willfully—
       (1) falsifies, conceals, or covers up by any trick, scheme, or device a material fact;
       (2) makes any materially false, fictitious, or fraudulent statement or representation;
       or
       (3) makes or uses any false writing or document knowing the same to contain any
       materially false, fictitious, or fraudulent statement or entry [shall be fined,
       imprisoned, or both.]
The district court held in this case that Count 28 did not charge an offense under § 1001 because the
defendants’ duty to disclose material facts does not apply to the disclosure of willful violations of
the Act. Instead, it applies only to the disclosure of hazardous conditions. See 30 C.F.R.
§ 75.363(b) (“A record shall be made of any hazardous condition found. This record shall be kept
in a book maintained for this purpose on the surface at the mine. . . . This record shall not be
required for shifts when no hazardous conditions are found . . . .”). Because the indictment charged
that the defendants had concealed the existence of violations of the Act rather than of hazardous
conditions, the district court granted the defendants’ motion to arrest judgment.
        We find no merit in the government’s argument that the indictment was read too narrowly
by the district court. An essential element of a violation of 18 U.S.C. § 1001 is that the defendants
had a duty to disclose the particular information allegedly concealed from the government. United
States v. Zalman, 870 F.2d 1047, 1055 (6th Cir. 1989) (holding that the duty to disclose under
§ 1001 is a matter of law for the judge, rather than the jury, to decide). As the district court
instructed the jury in the present case, “[t]he law does not require the reporting of violations, nor
does it require the reporting of violations which might become hazardous conditions. The law
requires only the reporting of current hazardous conditions.” See Nat’l Mining Ass’n v. Mine Safety
& Health Admin., 116 F.3d 520, 539 (D.C. Cir. 1997) (noting that “[t]he Secretary properly
emphasizes that[,] because the purpose of the examination is to identify current hazardous
conditions, requiring reporting of all instances of noncompliance with safety and health standards
could distract examiners from the primary focus of their task, and lessen the efficiency of
examinations”). Because the indictment does not distinguish between hazardous conditions and
willful violations—and in fact does not even mention the disclosure of hazardous conditions—it
does not charge an offense under § 1001. The district court therefore did not err in arresting
judgment on Count 28.
B.     The district court did not err in granting the defendants’ motion for a judgment of
       acquittal on Count 28 and part of Count 1
       In addition to their motions to arrest judgment, the defendants also moved for a judgment
of acquittal on Count 28, as well as on the portion of Count 1 that alleges a conspiracy to conceal
a material fact. These motions were granted by the district court.
       1.      Standard of review
        The standard for determining whether a motion for a judgment of acquittal should be granted
is “whether, after viewing the evidence in the light most favorable to the prosecution, any rational
trier of fact could have found the essential elements of the crime beyond a reasonable doubt.”
Nos. 03-6592/6593/6594/6595;                 United States v. Gibson et al.                       Page 5
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United States v. Landham, 251 F.3d 1072, 1083 (6th Cir. 2001) (quoting Jackson v. Virginia, 443
U.S. 307, 319 (1979)) (emphasis in original).
        2.      Motions for acquittal
        Because we agree that Count 28 failed to charge an offense, we need not reach the merits of
the defendants’ motions for a judgment of acquittal on that count. But even if the district court erred
in arresting judgment, it properly granted the motions for a judgment of acquittal on Count 28 and
part of Count 1. Conviction on a 28 U.S.C. § 1001 concealment charge requires a showing that the
“defendant had a legal duty to disclose the facts at the time he was alleged to have concealed them.”
United States v. Curran, 20 F.3d 560, 566 (3d Cir. 1994). Pursuant to the mining regulations, the
defendants here had a duty to disclose hazardous conditions on written reports at certain times
during a shift, not to orally communicate the existence of hazardous conditions to MSHA inspectors
upon their arrival at the mine. See 30 C.F.R. § 75.360(f) (establishing a duty to record the results
of each pre-shift examination, including the existence of hazardous conditions and their locations);
30 C.F.R. § 75.363 (establishing a duty to post notices and keep records of hazardous conditions).
        The government’s proof that the defendants had committed a violation of 18 U.S.C. § 1001
consisted of evidence that the defendants had notified the miners working below ground of the
MSHA inspectors’ arrival at the mine, thereby allowing the miners time to rectify any potentially
hazardous conditions prior to inspection. But the regulations are limited to requiring those
individual miners who are certified to conduct investigations to report hazardous conditions in
periodic written reports. The purpose of the pre-shift and on-shift reports is to facilitate
communication among employees who are beginning and ending their shifts regarding hazardous
conditions in the mine. See Nat’l Mining Ass’n v. Mine Safety & Health Admin., 116 F.3d 520, 539-
40 (D.C. Cir. 1997). They are not intended to be a mechanism to report “violations of mandatory
standards.” Id. at 539. The government failed to establish that the defendants found but did not
disclose hazardous conditions during their pre-shift and on-shift examinations. Rather, it essentially
alleged that, by preventing the safety inspectors from observing the actual working conditions in the
mine, the defendants failed to disclose willful violations of the MSHA (or, more precisely, the
defendants failed to allow the safety inspectors to discover the violations on their own). Such
“disclosure,” however, is not required by the regulations.
         The government argues that the district court’s reliance on Curran is misplaced. In Curran,
the Third Circuit reversed the defendant’s conviction for failing to disclose facts pertaining to
political donations because the defendant, a coal company executive who had solicited employees
to make illegal campaign contributions, had no duty to disclose to federal authorities the names of
the contributors. 20 F.3d at 567. The government’s contention is unpersuasive. Although Curran
is distinguishable on its specific facts, it stands for the legal proposition that 18 U.S.C. § 1001 is not
violated unless there is a duty to disclose the concealed facts. Id.
        As a final point on the issue of the defendants’ duty under the Act, we note that the
defendants were convicted on Count 27 of the indictment. Count 27 charged them with giving
“advance notice of inspections to be conducted by MSHA at Paradise #9 mine” in violation of
30 U.S.C. § 820(e). According to the indictment, Gibson, Mallicoat, and Tucker “alerted mine
personnel on the working face of Paradise #9 mine that MSHA inspectors had entered mine property
and would be inspecting the underground working face, so that corrections in working conditions
could be effected.” The alleged violations by the defendants of their duty to report hazardous
conditions in pre-shift and on-shift written reports, charged in Counts 1 and 28, are entirely independent
of the violations charged in Count 27. By stretching the duty to report hazardous conditions to
include a duty to refrain from providing advance notice of impending inspections, the government
is attempting to punish the defendants again for conduct for which they have already been convicted.
Nos. 03-6592/6593/6594/6595;                   United States v. Gibson et al.                        Page 6
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C.      The district court properly concluded that the reference to “hazardous conditions” was
        not unconstitutionally vague
        KenAmerican also argues that the term “hazardous conditions” found in 30 C.F.R.
§ 75.360(a) is unconstitutionally vague because it does not “incorporate[] a high level of
definiteness.” Belle Maer Harbor v. Charter Township of Harrison, 170 F.3d 553, 557 (6th Cir.
1999). Because the regulation does not define “hazardous conditions,” KenAmerican challenges
its conviction under the portion of Count 1 that charged it with making false statements in a matter
within the jurisdiction of the MSHA.
        KenAmerican correctly notes that, to be facially valid, a criminal standard must “define the
proscribed behavior with sufficient particularity to provide a person of ordinary intelligence with
reasonable notice of prohibited conduct and to encourage non-arbitrary enforcement of the
provision.” Id. at 556; see also M. Kraus & Bros. v. United States, 327 U.S. 614, 626 (1946) (“[A]
criminal conviction ought not to rest upon an interpretation reached by the use of policy judgments
rather than by the inexorable command of relevant language.”).
        But KenAmerican was convicted of violating 18 U.S.C. § 1001(a), not 30 C.F.R. § 75.360.
The criminal statute provides that “whoever, in any matter within the jurisdiction of the executive,
legislative, or judicial branch of the Government of the United States, knowingly and
willfully . . . makes any materially false, fictitious, or fraudulent statement or representation . . . shall
be fined under this title, imprisoned not more than 5 years or . . . both.” 18 U.S.C. § 1001(a). Such
language is not so indefinite as to be void for vagueness.
        Moreover, the appropriate standard for determining whether 30 C.F.R. § 75.360 is
unconstitutionally vague is whether it is understandable to an experienced company mine examiner
for whom the regulations were written. See Grayned v. City of Rockford, 408 U.S. 104, 108, 112
(1972) (holding that a city’s antinoise ordinance that proscribed “the making of any noise or
diversion which disturbs or tends to disturb the peace or good order of such school session or class
thereof” was not unconstitutionally vague because, given its “particular context,” the ordinance gave
“fair notice to those to whom (it) [was] directed”) (quoting Am. Communications Ass’n v. Douds,
339 U.S. 382, 412 (1950)). Whether the regulation in question here is understandable to the average
person is not the issue. As the district court pointed out, although the regulations do not define
“hazardous conditions,” they do give certified mine examiners sufficient guidance to prevent the
reference to hazardous conditions from being unconstitutionally vague.
D.      The district court did not err in concluding that there was sufficient evidence to
        support the convictions on Counts 1-4, 7, and 10 of the indictment
        The defendants also challenge their convictions on the remaining counts at issue in this
appeal, arguing that there was insufficient evidence to support a guilty verdict. They therefore claim
that the district court should have granted their motions for a judgment of acquittal and/or for
dismissal on these claims.
        1.      Standard of review
        In evaluating a claim that the evidence presented at trial was insufficient to support a
conviction, we must “view the evidence in the light most favorable to the government.” United
States v. Stonefish, 402 F.3d 691, 695 (6th Cir. 2005) (quoting United States v. Morrow, 977 F.2d
222, 230 (6th Cir. 1992)). We “will affirm the jury’s verdict unless no rational trier of fact could
have found, beyond a reasonable doubt, that [the defendants] committed the offenses charged.” Id.
Nos. 03-6592/6593/6594/6595;                United States v. Gibson et al.                     Page 7
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       2.      Count 1
        Count 1 alleges a conspiracy to commit three separate crimes. First, as discussed in Part
II.B.2. above, it alleges a conspiracy to conceal a material fact by trick, scheme, or device. The
second crime alleged is a conspiracy to knowingly authorize, order, or carry out the willful violation
of mandatory health and safety standards. Finally, Count 1 alleges a conspiracy to make false
statements in a matter within the jurisdiction of the government.
        Mallicoat argues that there was insufficient proof to establish that he committed an overt act
for the purpose of advancing this alleged conspiracy. The jury, however, found that Mallicoat
committed alleged overt act #6 in furtherance of the conspiracy; namely, that he and the other
defendants
       were present on the working face of Paradise #9 mine and observed that the
       ventilation curtains were not present within ten feet of the bumper of the continuous
       mining machine while coal was being extracted and were not being used to provide
       ventilation to the working face, and failed to cease production and correct or direct
       the correction of these violations.
At trial, witnesses testified to the fact that curtains were down throughout the mine and therefore
were not within ten feet of the bumper of the CMM. They also testified as to the fact that there was
insufficient ventilation in the mine. As a result, the jury’s finding that Mallicoat committed an overt
act in furtherance of the conspiracy was supported by sufficient evidence.
         KenAmerican and Gibson also argue that there was insufficient evidence for a jury to
convict them of making false statements as alleged in Count 1. The jury, however, heard testimony
that Gibson told employees not to mention in their pre-shift and on-shift reports that the ventilation
curtains were down. Other witnesses testified that, even though hazardous conditions were
frequently observed at the mine, these conditions were rarely included in the reports. This evidence
was sufficient for the jury to conclude that KenAmerican and Gibson were guilty of a conspiracy
to make false statements as charged in Count 1.
        KenAmerican further argues that a judgment of acquittal on Count 1 is appropriate because
the jury’s conviction might have been based on an act undertaken outside of the statute of
limitations, which is five years. See United States v. Craft, 105 F.3d 1123, 1127 (6th Cir. 1997)
(“The statute of limitations period for section 371 is five years, which period runs from the date of
the commission of the last overt act in furtherance of the conspiracy.”). To convict KenAmerican,
the jury was required to find that the corporation committed an overt act on or after May 8, 1997,
five years before the government issued its indictment. Although the jury did not specify the acts
upon which it convicted KenAmerican, there was ample evidence that the defendants violated the
MSHA well beyond May 8, 1997. The failure to instruct the jury that it must find that an overt act
was committed within the statute of limitations period therefore had no “substantial and injurious
effect or influence on the verdict.” Hardaway v. Withrow, 305 F.3d 558, 565 (6th Cir. 2002). Any
error on the part of the district court was thus harmless.
       3.      Counts 2-4, 7, and 10
        Finally, Mallicoat argues that he should have been granted a judgment of acquittal on Counts
2, 3, and 4, which charged the defendants with authorizing, ordering, and carrying out violations of
mandatory health and safety standards. Mallicoat contends that there was insufficient evidence to
support a conviction on these counts. Similarly, KenAmerican, Hickerson, and Tucker argue that
the district court should have granted their motion to dismiss Counts 4, 7, and 10, which charge them
Nos. 03-6592/6593/6594/6595;                 United States v. Gibson et al.                       Page 8
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with authorizing, ordering, and carrying out the violation of the mining regulation that requires the
mine operator to adopt and follow a ventilation plan. KenAmerican contends that there was no proof
of such a violation or that any of the defendants authorized the same.
        These arguments are all without merit. The testimony of Paul Griffin, properly introduced
as an admission of a party-opponent, see Part II.E. below, supports Mallicoat’s conviction on
Count 2. With respect to the other contested counts, mine superintendents or foremen can be said
to have knowingly authorized, ordered, or carried out violations of the MSHA when they enter
mines and observe violations but do nothing to stop or correct them. See Allied Prods. Co. v. Fed.
Mine Safety & Health Review Comm’n, 666 F.2d 890, 893 (5th Cir. Unit B 1982) (affirming civil
penalties against a mining company for violating the MSHA and explaining that “it is a common
regulatory practice to impose a kind of strict liability on the employer as an incentive for him to take
all practicable measures to ensure the workers’ safety”). KenAmerican argues that “observation of
a violation does not equal authorization,” but the Fifth Circuit in Allied Products has held that “[i]f
the act or its regulations are violated, it is irrelevant whose act precipitated the violation . . . ; the
operator is liable.” Id. at 894. We agree. The district court therefore did not err in sustaining the
convictions under Counts 2-4, 7, and 10.
E.      The district court did not err in admitting testimony that was allegedly double hearsay
        During the trial, the district court admitted testimony by the government’s witness, Paul
Griffin, regarding conversations that he claimed to have had with Gibson. According to Griffin’s
testimony, Mallicoat had told Gibson that KenAmerican was going to simultaneously operate two
CMMs at the Paradise No. 9 mine, and Gibson repeated this to Griffin. Such an operation would
be in violation of 30 C.F.R. §75.332(a)(2), which prohibits two CMMs from “simultaneously . . .
cutting, mining, or loading coal or rock from working places within the same working section”
unless each CMM is “on a separate split of intake air.”
        The district court allowed Griffin’s testimony as an admission by a party-opponent. See Fed.
R. Evid. 801(d)(2). Despite the defendant’s objection that the testimony constituted inadmissible
double hearsay, the court reasoned that both Gibson’s and Mallicoat’s statements were those of
party-opponents and were therefore admissible. KenAmerican, Griffin, and Mallicoat now argue
that the admission of Griffin’s testimony violated both the hearsay rule and their rights under the
Confrontation Clause of the Sixth Amendment.
        1.      Standard of review
        We review evidentiary rulings by the district court, including alleged violations of the
hearsay rule, under the abuse-of-discretion standard. Trepel v. Roadway Express, Inc., 194 F.3d
708, 716 (6th Cir. 1999) (citing Gen. Elec. Co. v. Joiner, 522 U.S.136, 141 (1997)). But see Field
v. Trigg County Hosp., Inc., 386 F.3d 729, 735 (6th Cir. 2004) (“[W]e review de novo a district
court’s conclusions of law, such as in this case, whether evidence offered at trial constituted hearsay
within the meaning of the Federal Rules of Evidence.”) (citing Hancock v. Dodson, 958 F.2d 1367,
1371 (6th Cir. 1992)). But where the evidentiary issues relate to a claimed violation of the Sixth
Amendment, we review rulings of the district court de novo. United States v. Robinson, 389 F.3d
582, 592 (6th Cir. 2004).
        2.      Hearsay
        With regard to any violation of the hearsay rule, the district court properly concluded that
the statements were admissible as statements by a party-opponent. This court held in Estate of
Shafer v. Commissioner, 749 F.2d 1216, 1220 (6th Cir. 1984), that, in order for double-hearsay
Nos. 03-6592/6593/6594/6595;                United States v. Gibson et al.                    Page 9
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statements to be admissible, both statements must be excluded from the hearsay definition. See Fed.
R. Evid. 805 (“Hearsay included within hearsay is not excluded under the hearsay rule if each part
of the combined statements conforms with an exception to the hearsay rule provided in these
rules.”). As in Estate of Shafer, both statements here were deemed party admissions within the
scope of Rule 801(d)(2)(A) and were therefore admissible.
       3.      Sixth Amendment
        With regard to the alleged Sixth Amendment violation, the defendants argue for the first time
on appeal that the admission of Griffin’s testimony violated their rights under the Confrontation
Clause. This court has held that Confrontation Clause arguments not first presented to the district
court will typically not be heard on appeal. See United States v. Bingham, 81 F.3d 617, 630 (6th Cir.
1996) (declining to consider a Confrontation Clause argument because, among other reasons, it was
not raised in the district court). We recognize, however, that “this general rule is one of prudence
rather than a limitation on this court’s jurisdiction.” United States v. Hayes, 218 F.3d 615, 621 (6th
Cir. 2000). As a matter within our discretion, we will review the merits of the defendants’ argument
because the potential impact of the Supreme Court’s recent decision in Crawford v. Washington, 541
U.S. 36 (2004), bears examination.
        The Supreme Court has held that the admission of statements by a nontestifying codefendant
that implicate the accused are presumptively unreliable and thus in violation of the Confrontation
Clause. Bruton v. United States, 391 U.S. 123, 126 (1968) (holding that the admission of a
codefendant’s confession that implicated the defendant at their joint trial constituted prejudicial
error); see also Bulls v. Jones, 274 F.3d 329, 334 (6th Cir. 2001) (holding that the admission of
statements by a nontestifying codefendant violated the Confrontation Clause). But hearsay
statements may be constitutionally admissible despite a defendant’s inability to confront the
declarant at trial where “(1) the evidence falls within a firmly rooted hearsay exception or (2) it
contains particularized guarantees of trustworthiness such that adversarial testing would be expected
to add little, if anything, to the statements’ reliability.” Lilly v. Virginia, 527 U.S. 116, 124-25
(1999) (quotation marks omitted). At least one other circuit has explicitly held that admissions by
a party-opponent are not firmly rooted exceptions to the hearsay rule. See Gonzales v. Fairman, 49
Fed. Appx. 97, 99 (9th Cir. 2002) (unpublished) (citing Lilly, 527 U.S. at 126-30); see also United
States v. Chappell, 698 F.2d 308, 312 (7th Cir. 1983) (“The exclusion of party admissions from the
definition of hearsay, unlike most hearsay exceptions, is not grounded on a probability of
trustworthiness but rather on the idea that a party cannot object to his failure to cross-examine
himself.”).
        Here, however, Griffin’s testimony was admissible because it bore “particularized guarantees
of trustworthiness.” Lilly, 527 U.S. at 125. Gibson’s statements were not made to the police or in
the course of an official investigation. Nor was Gibson attempting to curry favor or shift the blame
from himself to Mallicoat. See Latine v. Mann, 25 F.3d 1162, 1167 (2d Cir. 1994) (“The admission
of such a statement may not violate the Confrontation Clause, however, if the declarant makes the
statement to someone he believes is an ally, and if the circumstances surrounding the portion of the
statement that inculpates the defendant provide no reason to suspect that [the] inculpatory portion
is any less trustworthy than the part of the statement that directly incriminates the declarant.”)
(quotation marks omitted).
        The defendants also cite Crawford v. Washington, 541 U.S. 36, 61 (2004), as support for
their contention that “[a]dmitting statements deemed reliable by a judge is fundamentally at odds
with the right of confrontation.” In Crawford, the Supreme Court held that admitting out-of-court
testimonial statements in a criminal trial violates the Confrontation Clause. Id. But Crawford dealt
only with testimonial statements and did not disturb the rule that nontestimonial statements are
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constitutionally admissible if they bear independent guarantees of trustworthiness. See id. at 51
(distinguishing between testimonial statements, such as the formal statements made by an accuser
to a government officer, and nontestimonial statements, such as a casual remark made to an
acquaintance). We therefore conclude that the admission of Griffin’s testimony did not violate the
defendants’ rights under the Confrontation Clause.
F.     The district court did not err in refusing to increase the defendants’ offense levels
       based upon allegations regarding the conscious or reckless risk of death or serious
       bodily harm
       The government next argues that the district court erred in refusing to adjust the defendants’
offense levels upward pursuant to Sentencing Guidelines § 2B1.1(b)(11) (now § 2B1.1(b)(12)),
which allows the court to enhance a sentence if the offense involved “the conscious or reckless risk
of death or serious bodily injury.”
       1.      Standard of review
        We review de novo a district court’s interpretation of the Sentencing Guidelines. United
States v. Hazelwood, 398 F.3d 792, 795, 800-01 (6th Cir. 2005). Once we conclude that the district
court has properly consulted the Sentencing Guidelines, we review the sentence for reasonableness.
See United States v. Booker, 125 S. Ct. 738, 765-67 (2005).
       2.      Hickerson, Mallicoat, and Tucker
        The government’s argument with respect to Hickerson, Mallicoat, and Tucker is based on
the premise that the district court should have applied the fraud guidelines in § 2B1.1 rather than the
regulatory guidelines in § 2N2.1. But where a specific Sentencing Guideline does not exist for an
offense, the district court must choose an analogous Guideline to apply in determining the
defendant’s sentence. United States v. Gray, 982 F.2d 1020, 1021 (6th Cir. 1993). “[T]he choice
of the best analogy is likely to depend in part on the circumstances. Once the circumstances are
determined, the district court’s choice of an analogy should be upheld if it is reasonable.” United
States v. Brady 168 F.3d 574, 577 (1st Cir. 1999) (citations omitted).
        Here, the district court determined that the offenses committed by Hickerson, Mallicoat, and
Tucker were violations of regulations involving mandatory health and safety standards, and therefore
were analogous to the violations of statutes and regulations dealing with food and drugs that are
addressed in Sentencing Guidelines § 2N2.1. It also noted that “[t]his guideline assumes a
regulatory offense that involved knowing or reckless conduct” (quoting USSG § 2N2.1, comment.
(n.1)) and concluded that “that at least fits here to a certain extent.” The court explicitly rejected
the application of Sentencing Guidelines § 2B1.1 because the offenses of these defendants did not
involve fraud.
         We conclude that the district court’s determination that the applicable Sentencing Guideline
was § 2N2.1, not § 2B1.1, was reasonable. Because § 2N2.1 makes no provision for an upward
adjustment based on conscious or reckless risk of death or serious bodily injury, the court did not
err in refusing to increase the sentences of Hickerson, Mallicoat, and Tucker.
       3.      Gibson and KenAmerican
       With respect to the sentences of Gibson and KenAmerican, who were convicted of a
conspiracy to make false statements, however, the district court properly applied Sentencing
Guidelines § 2B1.1, which addresses fraud offenses. The court noted that § 2B1.1(b)(11), unlike
Sentencing Guidelines § 2N2.1, permits an enhancement based upon the risk of death or serious
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bodily injury. But the district judge refused to impose the enhancement, concluding that “I don’t
think [the defendants] intended to put the people that worked under them at risk.”
         Section 2X1.1(a) of the Sentencing Guidelines, which deals with conspiracy offenses, states
that the court should apply adjustments from the substantive Guideline, here § 2B1.1, only “for any
intended offense conduct that can be established with reasonable certainty.” In our opinion, the
district court correctly determined that this language required the government to prove that Gibson
and KenAmerican intended to create the risk of death or serious bodily injury. See United States
v. Holmes, 975 F.2d 275, 282 (6th Cir. 1992) (holding that, for an enhancement under § 2X1.1(a),
the defendant must have intended the conduct).
        The government contends, however, that it is not required to make such a showing. Instead,
the government claims that it is required to prove only that the defendants intended to commit the
underlying conduct; namely, running two CMMs simultaneously and failing to adequately ventilate
the mine face. But it offers no support for this interpretation of § 2X1.1(a). We therefore hold that
the district court properly refused to apply the adjustment in Sentencing Guidelines § 2B1.1(b)(11).
G.     The district court did not err in refusing to increase the individual defendants’ offense
       levels based upon their role in the offense
        The government also requested that the district court adjust the individual defendants’
offense levels to reflect their roles in the offense. Under Sentencing Guidelines § 3B1.1, a four-level
enhancement is warranted “[i]f the defendant was an organizer or leader of a criminal activity that
involved five or more participants or was otherwise extensive.” But the court refused to impose
such an enhancement, reasoning that only “operators” could be convicted of violating the MSHA.
It determined that imposing an adjustment based on the defendants’ leadership role would therefore
constitute double counting because the base offense level already reflected the defendants’ roles in
the offense.
         Double counting occurs where “precisely the same aspect of a defendant’s conduct factors
into his sentence in two separate ways.” United States v. Farrow, 198 F.3d 179, 193 (6th Cir. 1999).
The district court cited United States v. Stevenson, 6 F.3d 1262 (7th Cir. 1993), as support for its
conclusion that “the crime of conviction already encompasses the leadership role.” See id. at 1270.
In Stevenson, the Seventh Circuit held that a defendant who was convicted of employing, hiring,
persuading, or inducing a minor to participate in a crime in an effort to avoid detection of that crime
had necessarily assumed a “control role” in the offense. The court concluded that imposing a
sentence “based upon both recruiting a minor and for the appellant’s leadership role [amounted to]
‘double counting’” and was therefore impermissible. Id.
        The government argues that double counting was not an issue here because the defendants’
leadership roles did not factor into their sentences in any other way. According to the government,
even though the MSHA applies only to operators, the applicable Sentencing Guidelines are not
limited to operators because neither § 2B1.1 nor § 2N2.1 account for a defendant’s aggravating role
in the offense. The government attempts to distinguish Stevenson from the present case by arguing
that the Sentencing Guideline at issue in Stevenson was written expressly for the violation of
employing a minor in a drug crime, whereas there is no Guideline that expressly deals with the
MSHA.
        We do not find the government’s arguments persuasive. Instead, we agree with the district
court that Stevenson is closely analogous to the present case. Had the district court applied an
upward departure, the defendants’ roles as operators would have factored into their sentences in two
ways. Their operator status would first have been relevant in establishing their base offense level.
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Because only operators can be convicted of violating the MSHA, the base offense level does in fact
take into account their leadership roles. Second, their operator status would have factored into their
sentences by applying the enhancement. An upward departure would therefore have resulted in the
defendants’ sentences being enhanced based on the same elements that resulted in their offense of
conviction. See Stevenson, 6 F.3d at 1270.
        We agree with the Seventh Circuit that “[s]uch a result defeats the purpose of adjustments:
providing for increased responsibility beyond that reflected in the offense of conviction.” Id. See
also Farrow, 198 F.3d at 193-94 (“If a single aspect of the defendant’s conduct both determines his
offense level and triggers an enhancement, this defendant’s final offense level will be the same as
that of a defendant who engages in two forms of conduct deemed punishable under the Sentencing
Guidelines. Such an assignment of equal offense levels for conduct of differing severities
undermines the Guidelines’ goal of proportionality in sentencing.”) (emphasis in original) (footnote
omitted). The district court therefore did not err in refusing to apply the enhancement.
H.     The district court did not err in refusing to adjust Gibson’s offense level or
       KenAmerican’s culpability score to reflect their alleged obstruction of justice
         The Sentencing Guidelines allow for a two-level increase in a defendant’s offense level if
the defendant “willfully obstructed or impeded . . . the administration of justice during the course
of the investigation, prosecution, or sentencing of the instant offense of conviction.” USSG § 3C1.1.
Moreover, the Sentencing Guidelines provide the following enhancement of a corporation’s
culpability score based on an obstruction of justice:
       If the organization willfully obstructed or impeded . . . justice during the
       investigation, prosecution, or sentencing of the instant offense, or, with knowledge
       thereof, failed to take reasonable steps to prevent such obstruction[,] . . . add 3
       points.
USSG § 8C2.5(e).
         At sentencing, the government argued that the district court should apply this adjustment to
reflect the fact that KenAmerican had warned its miners of the inspections and falsified its pre-shift
and on-shift reports. It also requested that the district court increase Gibson’s offense level because
he had lied to MSHA inspectors about the status of one of the CMMs. But the court refused to apply
the adjustment, reasoning that neither Gibson’s nor KenAmerican’s obstructive conduct occurred
during “the investigation of the instant offense.”
       1.      Standard of review
        The district court’s factual findings in refusing to adjust a culpability score for obstruction
of justice will not be set aside unless they are clearly erroneous. See United States v. Burke, 345
F.3d 416, 428 (6th Cir. 2003). We review de novo the district court’s legal conclusions regarding
any such adjustment. Id.
       2.      Obstruction of justice
        The district court’s conclusion that Gibson’s and KenAmerican’s obstructive conduct did
not occur during “the investigation of the instant offense” is erroneous, because this court has
applied the obstruction adjustment when the defendant’s “action was intended to impede the same
government investigation that eventually resulted in [the defendant’s] conviction.” Burke, 345 F.3d
at 430. Despite this error, however, the district court’s refusal to apply the enhancement was proper
because Application Note 5 to Sentencing Guidelines § 3C1.1 states that conduct such as avoiding
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arrest, providing incomplete or misleading information, or even making false statements to federal
officers does not warrant application of the adjustment. Application Note 4, on the other hand,
details the type of conduct that is contemplated by the enhancement. The examples provided include
threatening a co-defendant, juror, or witness; committing perjury; destroying material evidence; and
escaping from custody. This suggests that the adjustment is meant to address more egregious
behavior than that at issue here. We therefore conclude that the district court did not err in failing
to increase Gibson’s or KenAmerican’s sentences based upon obstruction of justice.
I.     The district court did not err in refusing to consider KenAmenican’s pecuniary gain
       resulting from the company’s illegal conduct in determining the sentence
        The Criminal Justice Act of 1984 provides that “[i]f any person derives pecuniary gain from
the offense, . . . the defendant may be fined not more than the greater of twice the gross gain or twice
the gross loss, unless imposition of a fine under this subsection would unduly complicate or prolong
the sentencing process.” 18 U.S.C. § 3571(d) (emphasis added). Despite the fact that the
government attempted to introduce evidence regarding KenAmerican’s pecuniary gain, the district
court refused to hear the proffered testimony, explaining that “[m]y feeling right now is that the
corporation probably realized some gain. The real difficulty is how much.” The district court
agreed with the recommendation of the probation department that “there’s no defensible
methodology to use in calculating the gain with any reasonable certainty.” Instead, the court used
the Offense Level Fine Table found in the Sentencing Guidelines and considered KenAmerican’s
indeterminate profits as a result of its activities in departing upward from the base fine.
       1.      Standard of review
       We review the district court’s imposition of fines under the Criminal Justice Act under the
abuse-of-discretion standard. See United States v. Monus, 128 F.3d 376, 398 (6th Cir. 1998).
       2.      Pecuniary gain
         The government contends that the district court erred in refusing to hear the testimony of
seven witnesses regarding KenAmerican’s pecuniary gain before imposing the sentence. But the
district court did recognize that KenAmerican had profited to some extent and took this gain into
account in deciding whether to depart upward from the base fine. Moreover, it articulated a
legitimate reason for its refusal to hear the government’s proffered witnesses: “I might be here for
a long time and still have lots of questions about the amount, and I’d been engaging in speculation
and guesswork, . . . and certainly I think it’s going to complicate matters, and it’s going to prolong
this sentencing.” We therefore conclude that the district court’s refusal to hear the testimony, a
decision supported by the Presentence Report prepared by the probation office, was not an abuse of
its discretion.
                                        III. CONCLUSION
       For all of the reasons set forth above, we AFFIRM the judgment of the district court.
