                NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                          File Name: 08a0159n.06
                           Filed: March 21, 2008

                                   Nos. 06-1740/06-2036

                         UNITED STATES COURT OF APPEALS
                              FOR THE SIXTH CIRCUIT


UNITED STATES OF AMERICA,                      )
                                               )
       Plaintiff-Appellee,                     )
                                               )
v.                                             )
                                               )
JOSE CRUZ,                                     )
                                               )
       Defendant-Appellant.                    )
                                               )   ON APPEAL FROM THE UNITED
                                               )   STATES DISTRICT COURT FOR THE
                                               )   EASTERN DISTRICT OF MICHIGAN
UNITED STATES OF AMERICA,                      )
                                               )
       Plaintiff-Appellee,                     )
                                               )
v.                                             )
                                               )
JAMES CHERRY,                                  )
                                               )
       Defendant-Appellant.                    )



       Before: MERRITT, DAUGHTREY, and MOORE, Circuit Judges.


       PER CURIAM.           Defendants Jose Cruz and James Cherry appeal from their

convictions for conspiracy to distribute and distribution of marijuana, in violation of 21

U.S.C. § 841(b)(1)(C); use of an explosive device during or in relation to a drug-trafficking

crime, in violation of 18 U.S.C. § 924(c)(1)(B)(ii); and use of a firearm during or in relation

to a drug-trafficking crime, in violation 18 U.S.C. § 924(c). Cherry contends that the
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United States v. Cruz and Cherry

testimony of cooperating witnesses was insufficient to support the jury’s verdict; that the

government failed to establish that the “Molotov cocktail” he allegedly used in aid of the

drug-trafficking offense was a “destructive device” within the contemplation of §

924(c)(1)(B)(ii); and that the district court erred in refusing to declare a mistrial on the basis

of misjoinder of defendants. Cruz assigns error to the district court’s denial of his request

for an instruction on the lesser included offense of simple possession of marijuana. Both

defendants argue that the prosecutor engaged in improper “bolstering of” (Cherry) or

“vouching for” (Cruz) a government witness. We find no reversible error in connection with

any of these claims and, therefore, affirm the judgment of the district court.


                     FACTUAL AND PROCEDURAL BACKGROUND


       Cherry and Cruz were named along with 27 other defendants in multi-count

indictments charging various gun and drug violations against members of the Latin Counts,

a southwest Detroit street gang. The indictment in this case was returned against seven

co-defendants, including Cruz and Cherry, and grew out of a pair of home invasions that

occurred in the summer of 2001. The evidence in the record established that, acting on

information that there was more than $10,000 worth of marijuana stored in a house on

Stone Street, Cherry, Cruz, and their accomplices planned and executed the invasion of

that house and, using firearms, took a quantity of marijuana from the residence. They

committed a similar assault on a residence on Bayside that was also reputed to house a

stash of marijuana and, using a Molotov cocktail and carrying guns, took approximately 14


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pounds of marijuana from that building. Four of the seven co-defendants went to trial

together; the other three testified for the government. The jury convicted Cherry and Cruz

of conspiracy (count one), use of a destructive device (count two), and use of a firearm

during a drug-trafficking crime (count three). Both defendants were sentenced to one day

on the first count, 360 months on count two, and 60 months on count three, to run

consecutively. They now appeal their convictions, based on the claims discussed below.


                                       DISCUSSION


Insufficiency of the Evidence


       At trial, the district court denied defendant Cherry’s motion, filed pursuant to Federal

Rule of Criminal Procedure 29, for judgment of acquittal. He now assigns as error the

court’s ruling that the evidence was sufficient to support the jury’s verdict of conviction. We

review a district court’s refusal to grant a Rule 29 motion de novo, see United States v.

Kone, 307 F.3d 430, 433 (6th Cir. 2002), to determine “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.” United States v. Grubbs, 506

F.3d 434, 438 (6th Cir. 2007) (citing United States v. Blakeney, 942 F.2d 1001, 1010 (6th

Cir. 1991)(citing Jackson v. Virginia, 443 U.S. 307, 319 (1979))). We must “resolve all

reasonable inferences in favor of the government,” United States v. Layne, 192 F.3d 556,

567 (6th Cir. 1999), and we “will reverse a judgment for insufficiency of the evidence only

if, viewing the record as a whole, the judgment is not supported by substantial and

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United States v. Cruz and Cherry

competent evidence.” Grubbs, 506 F.3d at 438 (internal citation and quotation marks

omitted). “But while this means ‘we do not weigh the evidence’ or ‘assess the credibility

of the witnesses,’ United States v. Wright, 16 F.3d 1429, 1440 (6th Cir. 1994), this Court’s

power of review in these cases is not toothless. We have defined substantial evidence as

being ‘more than a scintilla. It means such relevant evidence as a reasonable mind might

accept to support a conclusion. It is evidence affording a substantial basis of fact from

which the fact in issue can be reasonably inferred.’” Grubbs, 506 F.3d at 438-39 (citing

United States v. Martin, 375 F.2d 956, 957 (6th Cir. 1967)).


       Cherry’s general challenge to the evidence is actually a challenge to its weight

rather than its legal sufficiency. He asserts that the government’s case was “heavily”

based on the testimony of the cooperating co-defendants – all of whom “believed that they

had to please the attorney for the government in order to obtain a sentence reduction” in

their own cases, had been incarcerated together, and were aware of each other’s pretrial

statements – rather than on “physical evidence or independent witnesses.” But he offers

no legal support for the proposition that the jury’s verdict can be overturned on this basis,

instead citing Justice Jackson’s concurring opinion in Krulewitch v United States ruminating

on his view that “[a] co-defendant in a conspiracy trial occupies an uneasy seat,” but also

noting that “in federal practice there is no rule preventing conviction on uncorroborated

testimony of accomplices.” 336 U.S. 440, 454 (1949). In this case, the defendant had an

opportunity to cross-examine the government’s witnesses, there is no evidence of

collusion, the accomplice testimony was corroborated by other proof in the record, and the

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jury was properly advised with regard to such testimony. We conclude that, overall, the

government’s case clearly met the Jackson v. Virginia standard.


       Defendant Cherry’s specific challenge to the sufficiency of the evidence concerns

the proof that he employed a “destructive device,” as that term is used in 18 U.S.C. §

921(a)(4), which defines it as “any explosive, incendiary, or poison gas (i) bomb, (ii)

grenade, (iii) rocket having a propellant charge of more than four ounces, (iv) missile

having an explosive or incendiary charge of more than one-quarter ounce, (v) mine, or (vi)

device similar to any of the devices described in the preceding clauses.” The indictment

charged the defendants with aiding and abetting the use of “an explosive device, to wit: a

Molotov cocktail, during and in relation to a drug trafficking crime.” Cherry argues both that

the witnesses described only a rudimentary device that was not, in fact, a “Molotov cocktail”

and that the government did not prove that it qualified as a destructive device under the

statute.


       However, the record contains testimony by one of the accomplices that the

members of the conspiracy “got gasoline for [the device] to use a 22-ounce Budweiser

bottle. So, you know, you pour the gasoline in there and you stuff a rag in it to use the

Molotov cocktail.” Another witness likewise referred to the purchase of “gas for a Molotov

cocktail.” Indeed, the object as described clearly meets the definition provided by the

Oxford English Dictionary: “A makeshift incendiary device for throwing by hand, consisting

of a bottle or other breakable container filled with flammable liquid and with a piece of


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United States v. Cruz and Cherry

cloth, etc., as a fuse.” Despite the defendant’s concern with the proper construction of the

device in question and his corollary contention that the improper placement of the wick

made it something other than a Molotov cocktail, we need not parse the definition of a

Molotov cocktail so closely as to debate the proper attachment of its fuse. The object that

witnesses described in this case comports sufficiently closely with the dictionary definition

to qualify as a Molotov cocktail.


       Furthermore, we have used the terms “Molotov cocktail” and “fire bomb”

interchangeably. See United States v. Rowan, 518 F.2d 685, 688 (6th Cir. 1975). Thus,

the testimony provided offers adequate evidence for a reasonable jury to conclude that the

device in this case was clearly a device that met the definition set out in § 921(a)(4). We

therefore find that the evidence also meets the Jackson v. Virginia standard in this respect.


Lesser-included-offense Jury Instruction


       Defendant Cruz sought a lesser-included-offense instruction on simple possession,

which the district court denied. “The District Court's decision to deny Appellant's request

for a lesser-included-offense jury instruction is reviewed for abuse of discretion.” United

States v. Colon, 268 F.3d 367, 373 (6th Cir. 2001) (citing United States v. Ursery, 109 F.3d

1129, 1136 (6th Cir. 1997)). As we have noted:


       A criminal defendant is entitled to an instruction on a lesser-included-offense
       if: (1) a proper request is made; (2) the elements of the lesser offense are
       identical to part of the elements of the greater offense; (3) the evidence
       would support a conviction on the lesser offense; and (4) the proof on the

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        element or elements differentiating the two crimes is sufficiently disputed so
        that a jury could consistently acquit on the greater offense and convict on the
        lesser.


Colon, 268 F.3d at 373.


        Cruz contends, and the United States does not dispute, that a proper request was

made, satisfying the first prong of the Colon test. However, without regard to the third and

fourth prongs, Cruz’s challenge must fail because he cannot establish the second prong

of the test, given the fact that the elements of simple possession are not the same as those

of conspiracy. Cruz begs the question by asserting that “possession with the intent to

distribute and simple possession” have the same elements, which simply is not the issue

in this case. He was convicted of “conspiracy to distribute and distribution of marijuana,”

not possession with intent to distribute. The elements of simple possession are “(1)

knowingly or intentionally, (2) possessing, (3) a controlled substance.” Id. at 375. In

contrast, the elements of the conspiracy charge are: “(1) an agreement to violate drug

laws, (2) knowledge and intent to join the conspiracy, and (3) participation in the

conspiracy.” Id. Just as in Colon, Cruz “focuses his argument on the possession aspect

of the charge and fails to acknowledge that the charge is not possession with intent to

distribute, but instead conspiracy to distribute and possess with intent to distribute.” Id.

(emphasis in the original). The Colon court’s holding that simple possession is not a lesser

included offense of conspiracy to distribute a controlled substance thus controls in this

case.


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Improper Vouching or Bolstering


       Both Cherry and Cruz contend that the prosecution improperly engaged in what they

refer to as “bolstering” or “vouching for” government witnesses by eliciting testimony from

Special Agent Joseph Callahan to corroborate the testimony of other government

witnesses, particularly the cooperating co-defendants. In making this argument, they not

only use these terms interchangeably but also misconstrue the meaning of both concepts.

In fact, we have previously distinguished between vouching and bolstering, noting that:


       Improper vouching occurs when a prosecutor supports the credibility of a
       witness by indicating a personal belief in the witness's credibility thereby
       placing the prestige of the office of the United States Attorney behind that
       witness. [I]mproper vouching involves either blunt comments or comments
       that imply that the prosecutor has special knowledge of facts not in front of
       the jury. . . . On the other hand, [b]olstering occurs when the prosecutor
       implies that the witness's testimony is corroborated by evidence known to the
       government but not known to the jury.


United States v. Trujillo, 376 F.3d 593, 607-08 (6th Cir. 2004) (internal citations and

quotation marks omitted, alterations in the original). In this case, because the prosecutor

was not indicating a personal belief in Agent Callahan’s credibility or personal knowledge

of facts not before the jury, no improper vouching occurred. Nor does the record establish

improper bolstering of the agent’s testimony.


       The testimony that defendants now challenge reads in relevant part:




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United States v. Cruz and Cherry

      Q. [by the AUSA]: It would, so let me recharacterize this. The work with
      Mr. Raynor as a cooperating defendant took place over approximately a year
      and a half, correct?
      A. [by Agent Callahan]: Yes, ma’am.
      Q. Okay, and would it be fair to characterize that year and a half as building
      up the use that you had for Mr. Raynor?
      A. It would be fair to characterize that we did several things to corroborate --
      [Defense Counsel]: Objection
      The Witness: – and verify the information.
      [Defense Counsel]: Objection, Your Honor, this is --
      The Court: What’s your objection?
      [Defense Counsel]: This is bootstrapping, ahh, it is attempting to – can we --
      The Court: No, just give me an objection.
      [Defense Counsel]: The legal objection is that it’s improper, it certainly is a
      Crawford objection, and it’s certainly --
      The Court: Overruled. Go on.
      The Witness: We did several things to verify and corroborate that
      information that was provided by Mr. Raynor, umm, to include arresting and
      interviewing, interrogating other defendants that were involved in other
      criminal activity with Mr. Raynor, such as Mr. Santillana, Santiago Santillana,
      who was arrested on a complaint and interviewed separately to include –
       [Defense Counsel]: Your Honor. Objection, this is vouching . . . .
      [AUSA]: This is foundation, Your Honor. I’ll move on.


      In United States v. Francis, we analyzed what kind of questioning qualifies as

improper bolstering. 170 F.3d 546, 551 (6th Cir. 1999). There, we found improper

bolstering to have occurred when a prosecutor repeatedly asked a law enforcement agent

whether he had corroborated information obtained from a witness. See id. Crucially, the

analysis in Francis turned on the fact that after stating that he had corroborated the


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United States v. Cruz and Cherry

information, the agent provided little further detail to demonstrate how the corroboration

occurred or what it consisted of. See id. We held that the mere assertion of corroboration

without the provision of additional detail as to whether documents, searches,

conversations, or other means offered supporting information “would lead a reasonable

juror to believe that the prosecutor was implying a guarantee of truthfulness based on facts

outside the record.” Id.


       The testimony challenged here simply does not meet the standard articulated in

Francis. Instead of asking whether corroboration occurred, without more, the prosecutor

focused on how the investigation unfolded and what kinds of techniques were used to

collect evidence in the case. Such a line of inquiry produces precisely the kind of

information about the source of corroboration that was lacking in Francis. Because no

reasonable juror could have taken this testimony to conclude that “the prosecutor was

implying a guarantee of truthfulness based on facts outside the record,” no improper

bolstering occurred in this case. Because there was no improper bolstering, the district

court’s denial of the defendant’s motion for a mistrial on this basis was not error.


Misjoinder of Defendants


       Prior to trial, the district court denied the defendants’ motion for severance, filed

pursuant to Federal Rule of Criminal Procedure 14, a ruling that we review for “a clear

abuse of discretion.”      United States v. Caver, 470 F.3d 220, 237 (6th Cir. 2006).

Defendant Cherry later moved for a mistrial on the basis of misjoinder of defendants, a

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motion that was also denied by the district court and is likewise reviewable for abuse of

discretion. See id. at 243.


       Cherry’s request for a mistrial was based on testimony solicited by the other defense

attorneys during the cross-examination of a government witness that, he claimed,

prejudiced his defense. During the trial, Cherry sought to defend himself by asserting that

in the absence of physical evidence to support the charges, and with the majority of the

evidence against him offered by co-conspirators who received favorable sentences, the

only evidence offered to support his conviction was unreliable. He contends that co-

defendant Booth’s duress defense, as well a brief reference to his involvement in “one or

two” unrelated home invasions, elicited by co-defendant Contreras’s attorney, “placed him

in the untenable position of having to testify to rebut a co-defendant’s case.” On appeal,

he points to the prosecutor’s concession that “the cross-examination of [co-defendant]

Anthony Contreras helped the government make a case on Mr. Cherry” to support his

contention that the district court’s failure to grant a mistrial was error.


       The prosecutor’s assessment notwithstanding, we find no abuse of discretion in

connection with the district court’s rulings. The denial of Cherry’s pre-trial motion for

severance was consistent with the presumption favoring joint trials when the charges are

to “be proved by the same evidence and result from the same acts.” United States v.

Beverly, 369 F.3d 516, 534 (6th Cir. 2004). Although joinder in this case did lead to the

introduction of testimony that might not have come to light if Cherry’s co-defendants had


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been tried separately, this evidence cannot be said to have denied Cherry the right not to

testify. Witnesses other than Contreras offered plentiful incriminating evidence without

reference to Cherry’s past acts; even in the absence of the challenged testimony, Cherry

would have faced a difficult decision as to whether or not to take the stand. That Cherry

ultimately opted not to testify militates against his assertion that his right against self-

incrimination was somehow compromised by the testimony of his co-defendants.


                                      CONCLUSION


       For the reasons set out above, we AFFIRM the judgment of the district court as to

both defendants in this case.




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