                NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                           File Name: 10a0610n.06

                                            No. 09-1146

                           UNITED STATES COURT OF APPEALS
                                FOR THE SIXTH CIRCUIT
                                                                                           FILED
                                                                                       Sep 14, 2010
UNITED STATES OF AMERICA,                                )                        LEONARD GREEN, Clerk
                                                         )
       Plaintiff-Appellee,                               )
                                                         )
v.                                                       )    ON APPEAL FROM THE UNITED
                                                         )    STATES DISTRICT COURT FOR
                                                         )    THE EASTERN DISTRICT OF
AHMAD K. DANIELS,                                        )    MICHIGAN
                                                         )
       Defendant-Appellant.                              )


Before: BOGGS, SILER, and MOORE, Circuit Judges.

       SILER, Circuit Judge. Ahmad K. Daniels was convicted of three drug charges and a related

firearm offense. He appeals his conviction and sentence, raising several issues. For the following

reasons, we AFFIRM IN PART, REVERSE IN PART and REMAND for resentencing.

               I. FACTUAL AND PROCEDURAL BACKGROUND

       Daniels and five co-defendants were prosecuted for their participation in a drug trafficking

conspiracy in Michigan between 2004 and 2006. The jury convicted Daniels of all four counts of

the indictment: conspiracy to possess with intent to distribute and to distribute controlled substances

in violation of 21 U.S.C. § 846 (Count One); distribution of cocaine base, aiding and abetting in

violation of 21 U.S.C. § 841(a)(1) and 18 U.S.C. § 2 (Count Two); possession with intent to

distribute cocaine base, aiding and abetting in violation of 21 U.S.C. § 841(a)(1) and 18 U.S.C. § 2
No. 09-1146
United States v. Daniels

(Count Three); and felon in possession of a firearm in violation of 18 U.S.C. § 922(g)(1) (Count

Four). The district court sentenced him to 262 months’ imprisonment.

                                        II. DISCUSSION

       Daniels argues that his conviction should be vacated and he should be granted a new trial,

because the district court abused its discretion in denying his Rule 33 motion for a new trial, its

evidentiary rulings violated his Sixth Amendment right to confront witnesses, and it abused its

discretion in failing to instruct the jury regarding law enforcement credibility and “mere presence.”

He also argues that his sentence is unreasonable.

A. Confrontation Clause

       Daniels asserts that his Sixth Amendment right to confront witnesses was violated because

some of the government’s witnesses’ prior convictions were redacted from the Rule 11 Plea

Agreement worksheets and he was not permitted to cross-examine these witnesses as to those

convictions. We review claims under the Confrontation Clause de novo. United States v. Johnson,

430 F.3d 383, 393 (6th Cir. 2005). Although the Confrontation Clause guarantees a criminal

defendant the right to confront the witnesses against him, it does not guarantee unlimited opportunity

for cross-examination. Delaware v. Van Arsdall, 475 U.S. 673, 678-79 (1986). Rather, “trial judges

retain wide latitude insofar as the Confrontation Clause is concerned to impose reasonable limits on

such cross-examination based on concerns about, among other things, harassment, prejudice,

confusion of the issues, the witness’ safety, or interrogation that is repetitive or only marginally

relevant.” Id. at 679.



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       The district court here did not significantly limit Daniels’s ability to cross-examine the co-

defendant witnesses. Although it did not allow Daniels to inquire as to the witnesses’ prior

convictions, it permitted and even encouraged Daniels to inquire into the relevant details of the plea

agreement. Under these facts, Daniels’s rights under the Confrontation Clause were not violated.

B. Jury Instructions

       Daniels argues that the district court erred by failing to instruct the jury as to (1) the

credibility of law enforcement witnesses and (2) the mere presence defense. We review a district

court’s denial of requested jury instructions for abuse of discretion. United States v. Gray, 521 F.3d

514, 540 (6th Cir. 2008). We must determine whether the “jury instructions as a whole . . .

adequately inform the jury of the relevant considerations . . . and will reverse a jury verdict on

account of an instructional error only in situations where the instruction, viewed as a whole[,] is

confusing, misleading, and prejudicial.” United States v. Adams, 583 F.3d 457, 469 (6th Cir. 2009)

(internal quotations omitted).

       1. Law Enforcement Witnesses

       Daniels and the government proposed the following jury instruction: “The testimony of a law

enforcement officer is entitled to no greater weight than that of other witnesses simply because he

is a law enforcement officer.” Although the proposed instruction is a correct statement of law, the

district court did not commit reversible error by failing to give the instruction because other

delivered instructions addressed credibility of witnesses.

       In United States v. Alston, 375 F.3d 408 (6th Cir. 2004), we concluded that the district court’s

failure to instruct the jury that it should not afford law enforcement witnesses additional credibility

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United States v. Daniels

solely because of their status was not reversible error, because “[t]he jury was given lengthy

instructions on considerations to make when determining witness credibility.” Id. at 412. In

particular, the jury was instructed to consider whether “the witness had any relationship to the

government or the defendant, or anything to gain or lose from the case,” and whether “the witness

had any bias or prejudice or reason for testifying that might cause the witness to lie or to slant their

testimony in favor of one side or the other.” Id. The district court provided the exact instructions

to the jurors in the case at hand. Accordingly, the district court did not abuse its discretion in failing

to use this particular instruction.

        2. Mere Presence

        Daniels also objected to the district court’s refusal to give the following proposed instruction

regarding “mere presence”:

        Merely being present at the scene of a crime or merely knowing that a crime is being
        committed or is about to be committed is not sufficient conduct to find that
        Defendant committed the crime.
        In order to find the Defendant guilty of the crime, the government must prove,
        beyond reasonable doubt, that in addition to being present or knowing about the
        crime, Defendant knowingly [and deliberately] associated himself with the crime in
        some way as a participant—someone who wanted the crime committed—not as a
        mere spectator.

The district court refused to read that instruction, correctly concluding that it had been covered by

other instructions.

        This proposed instruction is a correct statement of law; however, it was adequately covered

by other delivered instructions. Although the district court did not use the exact instruction the

parties submitted, the jury was informed that mere presence at the time of a crime is not sufficient


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United States v. Daniels

for a finding of guilt. Accordingly, the district court’s failure to give the proposed instruction is not

reversible error.

C. Rule 33 Motion for New Trial

        Daniels argues that his Rule 33 motion should have been granted because the verdict was

against the weight of the evidence, the district court erroneously admitted a document titled “Micro-

Capitalism,” the district court’s evidentiary rulings violated his Sixth Amendment right to confront

witnesses, and the district court failed to give two requested instructions to the jury.1 We review

a district court’s decision to grant or deny a Rule 33 motion for abuse of discretion. United States

v. Munoz, 605 F.3d 359, 366 (6th Cir. 2010).

        1. Weight of the Evidence

        In concluding that the verdict was consistent with the manifest weight of the evidence at trial,

the district court rejected Daniels’s argument that his co-defendant witnesses lacked credibility. The

court explained that “the testimony of the co-defendant witnesses was corroborated by that of law

enforcement witnesses and the evidence gathered during the investigation into this matter.” That

conclusion was not a clear and manifest abuse of discretion. Daniels’s argument that the verdict was

against the manifest weight of the evidence rests on a single proposition: his co-defendant witnesses

were not credible. Because we cannot assess the credibility of witnesses on appellate review, his

argument is meritless.




        1
         As we discussed above, the district court’s admission of the Rule 11 plea agreements and
failure to give the proposed jury instructions do not constitute reversible error.

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United States v. Daniels

       2. Admission of “Micro-Capitalism” Document

       Before trial, Daniels filed a motion in limine to exclude the exhibit entitled “Micro-

Capitalism: Inside the Mind of the Neighborhood Drug Dealer by Dr. Ahmad Khilia-X Daniels,”

arguing that the government had the exhibit for approximately two years without disclosing it to him,

in violation of Federal Rule of Criminal Procedure 16. The district court denied his motion without

prejudice and Daniels did not object to the admission of the exhibit at trial. In fact, he objected to

the government’s request that the exhibit be redacted to delete a portion of the exhibit that referred

to the fact that Daniels was convicted of shooting someone when he was nineteen years, and he

insisted that the entire document be entered into evidence. Moreover, Daniels specifically stated that

he waived his right to argue against the admission of the exhibit as a basis for appeal. He also

encouraged the jury to examine the writing during its deliberation.

       Accordingly, the district court did not abuse its discretion in admitting the document into

evidence. See, e.g., United States v. Sloman, 909 F.2d 176, 182 (6th Cir. 1990) (“An attorney cannot

agree in open court with a judge’s proposed course of conduct and then charge the court with error

in following that course.”). Moreover, the district court’s decision to admit the evidence was not an

abuse of its discretion under Rule 16. Rule 16 does not require exclusion of evidence that is

disclosed late, and affords the district court discretion in addressing such issues. See, e.g., United

States v. White, 985 F.2d 271, 276 (6th Cir. 1993) (holding that the district court’s decision to grant

a one-week continuance was not an abuse of discretion when defendant learned of undisclosed

evidence three days before trial).



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United States v. Daniels

D. Daniels’s Sentence

       “We review a district court’s sentencing determination for reasonableness under a

‘deferential abuse-of-discretion standard.’” United States v. Petrus, 588 F.3d 347, 351 (6th Cir.

2009) (quoting United States v. Bolds, 511 F.3d 568, 578 (6th Cir. 2007)). Our reasonableness

review has two components: procedural and substantive. Bolds, 511 F.3d at 578 (citing Gall v.

United States, 552 U.S. 38, 51 (2007)).

       Daniels argues that his sentence was procedurally unreasonable because the district court did

not make a finding that he was responsible for in excess of 1.5 kilograms of cocaine. In determining

whether a sentence is procedurally reasonable, we must “ensure that the district court committed no

significant procedural error, such as failing to calculate (or improperly calculating) the Guidelines

range, treating the Guidelines as mandatory, failing to consider the § 3553(a) factors, selecting a

sentence based on clearly erroneous facts, or failing to adequately explain the chosen sentence.”

Gall, 552 U.S. at 51.

       Federal Rule of Criminal Procedure 32(i)(3)(B) states that “[a]t sentencing, the court . . .

must—for any disputed portion of the presentence report or other controverted matter—rule on the

dispute or determine that a ruling is unnecessary either because the matter will not affect sentencing,

or because the court will not consider the matter in sentencing.” Fed. R. Crim. P. 32(i)(3)(B). We

require “literal compliance” with Rule 32. United States v. Clark, 254 F. App’x 528, 536 (6th Cir.

2007) (referring to amended Rule); see also United States v. Hurst, 228 F.3d 751, 760 (6th Cir.

2000) (referring to Rule before the 2002 amendment). Although we review the district court’s

finding of facts concerning drug quantities for clear error, “[T]he district court must set forth the

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United States v. Daniels

evidence upon which it relies and make specific findings that are supported by a preponderance of

the evidence.” United States v. Long, 190 F.3d 471, 478 (6th Cir. 1999). “[T]o ensure that

sentencing is based on reliable facts found by the court itself after deliberation, a court may not

merely summarily adopt the factual findings in the presentence report or simply declare that the facts

are supported by a preponderance of the evidence.” United States v. Tarwater, 308 F.3d 494, 518

(6th Cir. 2002).

        There are two potential procedural errors in Daniels’s sentencing. First, it is unclear from

the record that the district court made a finding regarding drug quantity. Despite the fact that Daniels

clearly disputed the drug quantity attributed to him and the fact in dispute affected his base offense

level, the district court never directly addressed this argument. Instead, without any further argument

on the subject, the district court eventually stated:

        I have read the memoranda and I have discussed this matter with the probation
        officer, and I have what has been written back and forth between the Government and
        the probation officer, and I am satisfied and rule that the calculation of the offense
        level and the consequent sentencing guidelines as it appears in the presentence
        investigation report is as close to accurate as we can get in these things.
        And I find that the facts set out in the presentence report and used in the calculation
        of the offense level and the criminal history category are accurate, and that the
        calculation itself of the sentencing guidelines is accurate.

The jury found that Daniels was responsible for 50 grams of cocaine base, well below the 1.5

kilograms for which he was sentenced. Because Daniels disputed the presentence report’s finding

that he was responsible for in excess of 1.5 kilograms, the district court was required to make a

particularized finding as to the drug quantity. See Rule 32(i)(3)(B); Clark, 254 F. App’x at 536.




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United States v. Daniels

        Even if the district court implicitly found that Daniels was responsible for at least 1.5

kilograms of cocaine, it did not provide any explanation for such a conclusion, apart from its reliance

on the presentence report. The district court’s failure to make a particularized finding and to set forth

the reasons for that finding is procedurally unreasonable. See Clark, 254 F. App’x at 536 (“[T]he

record is too ambiguous to demonstrate literal compliance with Rule 32, as no factual explanation,

however brief, accompanied the purported ruling.”) Accordingly, we remand for resentencing.

                                        III. CONCLUSION

        For the reasons stated above, we AFFIRM IN PART, REVERSE IN PART, and

REMAND for resentencing.




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