                       NOT RECOMMENDED FOR PUBLICATION
                               File Name: 05a0013n.06
                                Filed: January 6, 2005

                                    Nos. 02-5781/6292/6322

                          UNITED STATES COURT OF APPEALS
                               FOR THE SIXTH CIRCUIT


United States of America,                         )
                                                  )
       Plaintiff-Appellee,                        )
                                                  )
v.                                                )    ON APPEAL FROM THE UNITED
                                                  )    STATES DISTRICT COURT FOR THE
Norman T. Sexton, James A. Legg, and              )    EASTERN DISTRICT OF TENNESSEE
Richard Romans,                                   )
                                                  )
       Defendants-Appellants.                     )
                                                  )
                                                  )



BEFORE:        Merritt, Moore, and Gilman, Circuit Judges.

       MERRITT, Circuit Judge. Defendants Norman T. Sexton, James A. Legg, and Richard

Romans challenge, on a wide variety of grounds, their convictions and sentences following a 23-day

trial. All three defendants were convicted of conspiracy to distribute cocaine in violation of 21

U.S.C. §§ 846 and 841(a)(1); defendants Legg and Romans were also convicted under 21 U.S.C. §§

841(a)(1) and (b)(1)(C) on individual counts of distribution of cocaine.      We will review the

assignments of error on appeal in the following order: (1) claimed erroneous rulings on evidentiary

issues; (2) erroneous ruling on a motion to suppress claimed by Legg; (3) improper contact with

jurors claimed by Sexton; (4) insufficiency of the evidence claimed by Sexton; (5) claims of faulty

jury instructions made by Romans and Sexton; (6) prosecutorial misconduct claimed by Sexton; (7)

ineffective assistance of counsel claimed by Sexton and (8) errors in sentencing.
Nos. 02-5781/6292/6322
United States v. Sexton

       For the following reasons, we affirm the judgment of the district court.

                                          I. Background

               Defendants Roman and Legg lived on a large tract of rural land in East Tennessee

owned by Legg. Several cabins on the property served as the personal residences of Legg, Romans,

coconspirator Sarah Moss and several others involved in the conspiracy. Defendant Sexton lived

nearby and owned a local bar named “The Rhode House.” The cabins on Legg’s property and the

Rhode House bar served as primary locations from which most of the drug dealing of the conspiracy

was conducted. The conspiracy involved a large number of individuals over a four-to-five-year

period. Sexton was the primary supplier of cocaine to Legg and Romans, although Sexton himself

did not generally sell drugs to customers directly. Defendants Legg and Romans sold drugs and

supplied drugs to others for resale.

       Police started surveillance and undercover operations of the conspiracy in 1995.

Confidential informants, as well as undercover officers, were used to purchase cocaine from Legg

and Romans on several occasions. Defendants were arrested in 1999 and stood trial together in late

2000. Coconspirator Sarah Moss was also named in the indictment with these three defendants, but

she pled guilty and did not stand trial. We will incorporate the relevant facts into our review of

individual issues.

                                       II. Evidentiary Issues

       The trial lasted 23 days. At trial, 47 witnesses were called to testify, including indicted and

unindicted coconspirators and various law enforcement officers. The government also used tape




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United States v. Sexton

recordings of controlled cocaine buys to present evidence proving the existence of a conspiracy

involving defendants.

                         A. Admission of Testimony of Coconspirators

        The district court admitted at trial the testimony of several indicted and unindicted

coconspirators, including Robert Thompson, Tony Phillips, Elizabeth Sexton, Roger Pilgrim,

Eugene Jones, Darlene Estill and Karen Slutton, ruling that the statements were made during and

in furtherance of the conspiracy and are therefore exceptions to the hearsay rules. Fed. R. Evid.

801(d)(2)(E) (admitting statements if the “statement is offered against a party and is . . . a statement

by a coconspirator of a party during the course and in furtherance of the conspiracy”). The trial

court may conditionally admit coconspirator statements, as it did here, subject to subsequent

demonstration of their admissibility. Fed. R. Evid. 104(b); United States v. Vinson, 606 F.2d 149,

153 (6th Cir. 1979). For such statements to be conditionally admitted, the government must show

by a preponderance of the evidence that (1) the conspiracy existed, (2) the defendant against whom

the statement is offered was a member of the conspiracy, and (3) the statement was made in the

course of and in furtherance of the conspiracy. Bourjaily v. United States, 483 U.S. 171, 176 (1987);

United States v. Smith, 320 F.3d 647, 654 (6th Cir. 2003).1


        1
         A 1997 amendment to Rule 801(d)(2)(E) codifies the holding in Bourjaily by stating
expressly that a court shall consider the contents of a coconspirator’s statement in determining “the
existence of the conspiracy and the participation therein of the declarant and the party against whom
the statement is offered.” According to Bourjaily, Rule 104(a) necessitates these preliminary
requirements to be established by a preponderance of the evidence. Second, the amendment provides
that the contents of the declarant’s statement do not alone suffice to establish a conspiracy in which
the declarant and the defendant participated. The court must consider in addition the circumstances
surrounding the statement, such as the identity of the speaker, the context in which the statement was

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United States v. Sexton

       Defendants argue both that the government failed to show that a conspiracy existed and that

statements were made “in furtherance” of the conspiracy. We disagree. In addition to the

statements of the coconspirators themselves, the district court heard extensive other evidence from

law enforcement and other witnesses indicating the existence of a conspiracy. The district court

therefore conditionally admitted the statements and then made extensive findings later to support

their admission. (J.A. at 3392-3407, 3466-86)

       The evidence of a conspiracy relied upon by the district court to conditionally admit the

statements includes Officer Bryant’s undercover activities and controlled buys from Legg, recorded

conversations between and among informants, coconspirators and Legg and Romans, observations

by officers of meetings between and among coconspirators during and after drug transactions and

the actual seizure of drugs on Legg’s property. For example, the court cited the testimony of

Darlene Estill, who was Legg’s girlfriend and lived with him off and on for four years, including

during the existence of the conspiracy. She was involved in Legg’s drug activities and testified that

he supplied cocaine to Romans and Sarah Moss. Estill testified that Legg told her that defendant

Tim Sexton was Legg’s supplier. While she lived with Legg she knew of more than a dozen

customers of Legg’s, including Romans and Moss, who then resold cocaine to others. She testified




made, or evidence corroborating the contents of the statement in making its determination as to each
preliminary question. See United States v. Clark, 18 F.3d 1337, 1341-42 (6th Cir. 1994). The
statements may be admitted subject to a later ruling that the government has met its burden. Id. The
district court may rely on a coconspirator’s statement to determine whether a conspiracy has been
established as long as there is some independent corroborating evidence that serves to rebut the
presumption of unreliability of out-of-court statements. Id.


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United States v. Sexton

that Legg would take money from drug transactions to Sexton’s house and would sometimes return

from those visits with more drugs to sell. Estill recorded a conversation with Sarah Moss that

indicated that Sexton sometimes provided drugs to Romans, Legg and Moss for resale and Moss

joked about competition between Romans and her for cocaine customers. The court cited numerous

other items of testimony to indicate that Legg, Romans, Sexton and Moss, along with others,

engaged in a drug conspiracy during the time in question. Trial Trans. at 3060-66, J.A. at 3395-

3401.

        In addition to challenging the existence of a conspiracy, defendants also challenge whether

the admitted coconspirator statements were made “in furtherance of the conspiracy.” A statement

is “in furtherance” of a conspiracy if it is intended to promote the objectives of the conspiracy – here

to sell cocaine. United States v. Clark, 18 F.3d 1337, 1342 (6th Cir. 1994). Many of the admitted

statements were made by coconspirators during the course of an actual drug transaction. Some of

the statements informed other conspiracy members or customers about the source of the cocaine, and

the hierarchy or the roles of various persons in the conspiracy. Trial Trans. at 3070-72; J.A. at 3405-

07.

        Defendants further contend that the court is required to review each offering by the

government separately to determine if a particular statement is one in furtherance of the conspiracy.

Before making a determination as to whether the statement was admissible under Rule 801(d)(2)(E),

the court reviewed each conversation in colloquy with counsel. The district court reviewed the

specific evidence particular to each coconspirator to establish the existence of a conspiracy and that

person’s role in the conspiracy before admitting the statement made by that person. The court

                                                  -5-
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United States v. Sexton

correctly found that the statements were made in furtherance of the conspiracy. Accordingly, there

was no error in admitting the coconspirator statements.

                    B. Tape Recordings Made by Informant Eddie Goins

       Tapes were made by confidential informant Eddie Goins during several controlled buys from

coconspirator Sarah Moss and defendant Romans. Under police supervision, the conversations were

transmitted in real time with a hidden transmitter. This method allowed police to monitor Goins

simultaneously as he spoke. It also allowed a recording to be made with a body recorder. The

recordings were later reviewed and transcribed. In addition to implicating Romans, from whom

Goins made two buys, the taped conversations implicate Sexton and Legg in the conspiracy. Most

of the tapes, along with accompanying transcripts, were admitted into evidence over the objections

of defendants, but Goins did not testify for the government when it was discovered that he lied to

police and fabricated two tape-recorded conversations relating to the investigation. Goins was not

named as a coconspirator. The government introduced the tapes through the participating police

officers and questioned the officers about the circumstances surrounding the tape recordings.

Defendants called Goins as a witness, but he refused to testify, asserting his Fifth Amendment

privilege.

       Defendants challenge the court’s admission of the tapes on the following grounds: (1) that

Goins’ testimony was necessary to introduce the tapes into evidence and to allow them to cross-

examine and impeach Goins; (2) the tapes were not properly authenticated and the voices on the

tapes were not properly identified; (3) the tapes were inadmissible without the admission of the two




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United States v. Sexton

fabricated Goins tapes; (4) the admission of the tapes violated their Sixth Amendment confrontation

rights because Goins was not available for cross-examination.

      1. Authentication and Voice Identification under the Federal Rules of Evidence

        Rule 901(a) provides that “authentication or identification as a condition precedent to

admissibility is satisfied by evidence sufficient to support a finding that the matter in question is

what its proponent claims.” The rule also states, by way of illustration, that the testimony of a

witness that the item is what it purports to be is sufficient authentication under the rule. Fed. R. Evid.

901(b)(1). The admission of the tapes satisfied Rule 901. Law enforcement officers present during

the tapings testified in detail about the procedures used when Goins was outfitted with the

transmitter and recorder during the controlled buys. The fact that Goins did not testify to

authenticate the tape recordings or identify the other voices does not render them inadmissible. It

is not necessary for a participant of the conversation to testify to the authenticity of the recordings

so long as other indicia of accuracy and reliability are established. Goins wore a transmitter and a

body recording device, which recorded a second contemporaneous tape of the conversation. The

recording devices were removed from Goins immediately after the conversations occurred, and the

transmitter recordings were compared with the body recorder tapes to ensure that they were

duplicates of the same conversations. Police witnesses adequately testified as to these procedures.

This testimony is therefore sufficient under Rule 901. United States v. Batts, No. 91-5096, 1991

WL 230023, **2 (6th Cir. Nov. 7, 1991). Romans fails to point to anything in the record that would

create a question as to the authenticity of this tape recording.




                                                   -7-
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       Romans also argues that the voices on the tape recording of Goins’ conversations with

coconspirators have not been properly identified. Federal Rule of Evidence 901(b)(5) provides that

a witness may identify or authenticate the voice or speaker on a tape if he has heard “the voice at

any time under circumstances connecting it [the voice] with the alleged speaker.” Various

witnesses, who heard the recorded conversations and were familiar with the voices therein, testified

as to the identity of the speakers recorded on the tape, in conformance with Federal Rule 901.

Although the defense disputed some of the identifications, there was sufficient proof of identity to

admit the tapes.       In sum, the government adequately demonstrated through testimony by the

police who were monitoring the controlled buys and testimony of persons familiar with Goins’ and

Moss’ voices that the tapes were in fact what they claimed to be, even without Goins’ testimony.

It was not error to admit the tapes.

                        2. Hearsay Rules and the Confrontation Clause

       The district court did not admit Goins’ statements on the tape under Rule 801(d)(2)(E), the

coconspirator exception to the hearsay rule. The court admitted the Moss and Roman portions of

the conversations pursuant to Federal Rule of Evidence 801(d)(2)(A) as an admission of a party

opponent, and Goins’ statements were admitted because they were not offered for their truth, but

rather to give meaning to the admissible responses of Romans and Moss. Goins’ statements were

not hearsay because they were not “offered into evidence to prove the truth of the matter asserted,”

under Federal Rule of Evidence 801(c). Their admission does not violate the hearsay rule. See

United States v. McDonald, Nos. 97- 5339/5556/5338/5187/5196, 1999 WL 149658, at *9 (6th Cir.

March 1,1999) (collecting cases); United States v. Johnson, 71 F.3d 539, 543 (6th Cir.1995); United

                                                -8-
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United States v. Sexton

States v. Martin, 897 F.2d 1368, 1372 (6th Cir. 1990). The district court properly instructed the jury

that Goins’ statements on the tape could not be used as evidence.

       Romans and Sexton further erroneously contend that the admission of Goins’ tape-recorded

statement violated their Sixth Amendment right to confront the witnesses against them. When an

out-of-court statement is not offered to prove the truth of the matter asserted, as with Goins’

statements, the Confrontation Clause is not implicated. Tennessee v. Street, 471 U.S. 409, 413

(1985); United States v. Martin, 897 at 1372.

       The statements were clearly admissible under the Supreme Court’s recent decision in

Crawford v. Washington, 541 U.S. 36, 124 S. Ct. 1354 (Mar. 8, 2004). Because Goins’ statements

were not offered for their truth, they are not hearsay, and the other statements fall within well-

established exceptions to the hearsay rule – either as admissions or statements of coconspirators.

                               3. Error to Allow Use of Transcript

       Romans asserts that the court erred when it permitted the jury to use transcripts as an aid

while listening to the tape recordings of Goins and various coconspirators. Police witnesses testified

that they had listened to the tapes and that the transcripts accurately reflected the content of the

conversations and the identity of the speakers. See Fed. R. Evid. 901(a) (“The general requirement

of authentication . . . as a condition precedent to admissibility is satisfied by evidence sufficient to

support a finding that the matter in question is what its proponent claims.”); United States v.

Robinson, 707 F.2d 872, 877 (6th Cir.1983). The district judge also listened to the recordings and

compared them with the transcripts. He concluded that the transcript was accurate and instructed

the jury to use the transcript as an aid rather than as evidence. Moreover, Romans did not

                                                  -9-
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United States v. Sexton

specifically identify for the court any place where the transcript and the tape did not match. We find

no error.

                     4. Exclusion of the Two Fabricated Tape Recordings

       Defendant Romans also contends that the district court erred in excluding the two fabricated

tape recordings made by informant Eddie Goins because they would have demonstrated Goins’ lack

of trustworthiness and impeached his credibility pertaining to the tapes of the controlled buys that

were admitted. Romans asserts both error in the evidentiary ruling excluding the tapes, as well as

Confrontation Clause problems arising from the lack of opportunity to cross-examine and impeach

Goins on the fabricated tapes.

       The government stipulated to the fabrication, and the jury was told of the stipulation and

fabrication. The jury was well aware of the existence of the fabricated tapes. Defense counsel

reminded the jury on numerous occasions throughout the trial proceedings about Goins’ deception,

driving home the point of his untrustworthiness. We fail to see how the failure to allow the playing

of fabricated tapes could have affected the outcome of the trial or prejudiced the defendants.

                    C.. Cross-Examination and Impeachment of Witnesses

       Defendant Sexton challenges a large number of evidentiary rulings concerning cross-

examination of defense and government witnesses. First, Sexton argues that the district court

impermissibly limited the scope of cross-examination of government witnesses by Sexton’s counsel,

particularly those serving as informants or coconspirators who provided testimony in exchange for

more favorable sentences, grants of immunity, or, in the case of Eddie Goins, received payment for

his informant role. Sexton claims that he was not allowed to expose the “quid pro quos” and

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United States v. Sexton

inconsistent statements of various witnesses, nor was he able to cross-examine Sally Moss or Eddie

Goins at all.

        A balance must be struck between permitting a trial court to exercise its sound discretion and

affording a criminal defendant the opportunity to expose bias and prejudice.                  Clearly,

cross-examination concerning the partiality of a witness is always relevant. United States v.

Touchstone, 726 F.2d 1116, 1122 (6th Cir.1984). Therefore, a trial court may not prevent a criminal

defendant from exploring a witness' bias, prejudice, or motive for testifying, or curtail

cross-examination concerning whether testimony is given with the expectation of immunity or out

of fear or coercion.

        In determining whether a trial court erred in allowing only limited cross-examination as to

motive, bias, or prejudice, a reviewing court must decide “whether the jury was otherwise in

possession of sufficient information concerning formative events to make a ‘discriminating

appraisal’ of a witness’ motives and bias.” Touchstone, 726 F.2d at 1123 (quoting United States v.

Campbell, 426 F.2d 547, 550 (2d Cir.1970)); United States v. Baker, 494 F.2d 1262, 1267 (6th

Cir.1974). When a cross-examiner is not permitted reasonable latitude to develop facts that tend to

demonstrate that the testimony in chief is biased and sufficient independent evidence of bias is not

available to the jury, the trial court has abused its discretion.

        The district court allowed some cross-examination of all the witnesses that testified. In those

circumstances where the trial judge did restrict cross-examination, it was generally because it was

going beyond the scope of the direct, or was redundant. As for the Goins tapes that were admitted

without the testimony of the declarant, Eddie Goins, Sexton was provided ample opportunity to

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United States v. Sexton

cross-examine the officers that testified about the procedures used when the tapes were made. In

addition, other witnesses who authenticated the Goins’ tapes and identified the voices on the tapes

were available for cross-examination.

        With regard to Elizabeth Sexton, Tim Sexton’s cousin, defense counsel objected when the

court relied on Federal Rule of Evidence 608(b) to prevent the defense from putting on extrinsic

evidence in an attempt to impeach her on collateral matters; namely her alleged bias against Sexton

for evicting her from the family home. Defense counsel attempted to put on extrinsic evidence to

show that Elizabeth Sexton had made prior statements inconsistent with her court testimony. Rule

608(b) provides, “Specific instances of the conduct of a witness, for the purpose of attacking or

supporting the witness’ credibility, other than conviction of a crime as provided in Rule 609, may

not be proved by extrinsic evidence.” The court found that the prior statement was not inconsistent

and that defense counsel wished to use it only for the purposes of impeachment, in violation of Rule

608(b). Defense counsel was able to cross-examine Elizabeth Sexton, as well as other witnesses

with knowledge about the incident, including any bias by Elizabeth against Sexton for evicting her

from their home.

       Sexton contends that certain defense witnesses were improperly cross-examined by the

government. One witness was asked about his invocation of the Fifth Amendment before the grand

jury, thus implying to the trial jury that the witness had something to hide; but the issue about which

the witness invoked the Fifth Amendment before the grand jury was not relevant to the drug

conspiracy at issue in the trial. Even if it was error, it was unlikely to have caused any prejudice to

Sexton. Another defense witness was questioned about the federal prosecution of several family

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United States v. Sexton

members to show bias. No details of the offenses were placed before the jury. The government also

attempted to impeach the character of the business manager at Sexton’s Rhode House bar when she

was questioned about her failure to keep tax and other records documenting the business, the

presence of illegal gambling machines in the bar and the fact that employees of the Rhode House

were paid in cash. These were proper areas of questioning to impeach the business manager’s

testimony that she and Sexton were operating a legitimate business.

       Finally, Sexton challenges the impeachment of his character witnesses, the fact that he was

limited to introducing three character witnesses and the district court’s refusal to give the jury

instruction he requested concerning character witnesses. The character witnesses testified as to

Sexton’s reputation as a law-abiding citizen. The government cross-examined these witnesses about

Sexton’s friendship with known cocaine dealers and users, which Sexton challenged as “guilt by

association.” The questioning was permissible impeachment testimony to counter the testimony

that Sexton was a law-abiding citizen. As to the number of character witnesses and the jury

instruction, the court has discretion to limit the number of character witnesses, particularly where

there are no extraordinary circumstances, such as here. The three witnesses testified as to Sexton’s

law-abiding reputation in the community and the fact that he was a law-abiding citizen. Further

witnesses testifying to these matters would have been redundant. Sexton requested that the court

instruct the jury that “proof of good character, standing alone, is sufficient to generate reasonable

doubt” as to defendant’s guilt. The court refused to give this instruction and instead gave the pattern

jury instruction regarding character witnesses. This was not error.




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United States v. Sexton

                            D. Chain of Custody of Drug Evidence

       Romans also contests the admission of the cocaine obtained through the controlled buys with

Goins, arguing that the government failed to establish a proper chain of custody. Physical evidence

is admissible when the possibility of misidentification or alteration is “eliminated, not absolutely,

but as a matter of reasonable probability.” See United States v. Allen, 106 F.3d 695, 700 (6th

Cir.1997) (citations omitted); United States v. McFadden, 458 F.2d 440, 441 (6th Cir. 1972).

Merely raising the possibility of tampering or misidentification, without more, is insufficient to

render evidence inadmissible. United States v. Kelly, 14 F.3d 1169, 1175 (7th Cir.1994).

Furthermore, “challenges to the chain of custody go to the weight of the evidence, not its

admissibility.” United States v. Levy, 904 F.2d 1026, 1030 (6th Cir.1990); see also United States.

v. Combs, 369 F.3d 925, 938 (6th Cir. 2004). Given the consistent testimony of witnesses with

knowledge about the events, the district court did not err where ample evidence supported a finding

that the cocaine was obtained in the manner described by the government. Romans merely raises

the unsupported claim that someone may have tampered with the evidence; he points to no evidence

supporting such a claim. The challenge to the authenticity of the drugs seized during the controlled

buys is pure conjecture, based on nothing more than the fact that Goins fabricated two tapes.

                             E. Sarah (aka Sally) Moss Guilty Plea

       Sarah Moss was an original codefendant who pleaded guilty prior to trial. The government

then called her to testify after requesting immunity for her pursuant to 18 U.S.C. § 6002. The

district court called Moss to the stand outside the presence of the jury and confirmed that she




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United States v. Sexton

intended to invoke her Fifth Amendment privilege. The court informed Moss it would grant the

request for immunity and told her that she was compelled to testify.

       Once on the witness stand, Moss admitted to pleading guilty to the conspiracy but denied she

had engaged in any drug trafficking with defendants and testified that she did not know anything

about their involvement in a conspiracy. After being pressed by the government on direct

examination, she acknowledged the existence of her recorded statements purporting to sell cocaine

to Eddie Goins. She eventually refused to testify further. Because the court had granted the request

for immunity, it informed Moss she could no longer rely on her Fifth Amendment privilege to refuse

to answer questions and ordered her to testify. After she continued to refuse to testify, the court

cited her for civil contempt and incarcerated her.

       The government attempted to impeach Moss by entering her guilty plea into evidence, which

established Moss’ involvement with the conspiracy. Generally, the guilty plea or conviction of a

codefendant or coconspirator is not admissible at trial, and such guilty pleas and convictions are

never admissible as substantive evidence of another defendant’s guilt. United States v. Blandford,

33 F.3d 685, 709 (6th Cir.1994). Evidence that a coconspirator has been convicted of conspiring

with a criminal defendant is generally inadmissible because it might lead the jury to “regard the

issue of the remaining defendant's guilt as settled and [conclude that] the trial is a mere formality.”

United States v. Modena, 302 F.3d 626, 631 (6th Cir. 2002); United States v. Griffin, 778 F.2d 707,

711 (11th Cir.1985); Fed. R. Evid. 403 (providing that relevant evidence "may be excluded if its

probative value is substantially outweighed by the danger of unfair prejudice").




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United States v. Sexton

       Nevertheless, guilty pleas and convictions may be introduced into evidence if the

coconspirator or codefendant testifies at trial, so that the factfinder will have appropriate facts to

assess the witness’ credibility. When a guilty plea or conviction is introduced into evidence, the

district court is required to give a cautionary instruction to the effect that the jury may use the

conviction or guilty plea only to determine the testifying witness' credibility.

       To address this turn of events, the court prepared, sua sponte, a jury instruction based on the

Sixth Circuit Pattern Jury Instructions § 7.08:

       You have heard the testimony of Sarah Moss. You have also heard that this
       individual was indicted for the same crime that the Defendants are charged with
       committing. You should consider the testimony of this witness with more caution
       than the testimony of other witnesses.

       Do not convict the Defendants based on the unsupported testimony of such a witness,
       standing alone, unless you believe her testimony beyond a reasonable doubt.

       You are also instructed that the fact that Sarah Moss has pleaded guilty to a crime is
       not evidence that the Defendants are guilty, and you cannot consider this against the
       Defendants in any way.

Defense counsel objected to this instruction. Moss persisted in her refusal to testify, even after the

judge brought her back to the courtroom before the close of the evidence. The judge indicated to

counsel that he was inclined to strike her testimony; but because it was partially exculpatory to

defendants, he would let defense counsel decide the issue. At defense counsels’ request, the court

struck all of Moss’ testimony and instructed the jury to disregard it.

       Where the court strikes evidence and instructs the jury to disregard it, the normal rule is that

the error is cured unless the testimony is “so prejudicial that the jury could not be trusted to

disregard it.” United States v. Stines, 313 F.3d 912, 919 (6th Cir. 2002). Here, the testimony was

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United States v. Sexton

not “so prejudicial that the jury could not be trusted to disregard it.” Moss’ testimony was at least

partially exculpatory. She claimed to have no knowledge of a conspiracy or of defendants’

participation in one. The jury did know, however, that she pleaded guilty to a conspiracy with the

defendants and defendants never had an opportunity to cross-examine her. Given the mixed nature

of Moss’ testimony, and the instruction by the court to disregard all of her testimony, any error was

harmless.

                                III. Other Claimed Trial Errors

                                  A. Legg’s Motion to Suppress

       Legg moved to suppress evidence seized during execution of a search warrant issued by a

Tennessee state court magistrate judge. The items seized were narcotics, guns and money. The

motion was denied, but the suppression hearing was reopened during the trial after it was determined

that the officer who swore out the affidavit supporting the search warrant had lied about certain facts

in the affidavit. Applying Franks v. Delaware, 438 U.S. 154 (1978),2 the district court struck the

false parts of the affidavit, but found that the remaining portions provided probable cause to believe

evidence of drug trafficking would be found on Legg’s property. The court also found that the

“open fields” doctrine applied to the search, denying Legg any reasonable expectation of privacy

in the evidence hidden in the wooded area around his home.




       2
          In Franks v. Delaware, 438 U.S. 154 (1978), the Supreme Court held that where defendant
demonstrates perjury by a preponderance of the evidence, the false information must be set aside
and if the remaining information is insufficient to establish probable cause, the search warrant must
be voided and the fruits of the search excluded.

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United States v. Sexton

       The warrant had been obtained the day before the search was executed based on an affidavit

sworn to by Officer Cherilyn Bryant, an undercover officer with the Chattanooga Police Department.

In her sworn affidavit, Bryant stated that she had purchased cocaine from Legg and a man named

William Burnette, also known as “Computer,” on numerous occasions and had observed others

purchasing cocaine from Burnette. The property to be searched had several cabins and was

identified as belonging to Legg.

       The evidence seized included narcotics, guns and money from various locations around

Legg’s property. At issue in the suppression hearing was $4100 in cash and a coffee creamer jar

wrapped in black electrical tape containing 6 ounces of cocaine found hidden in two separate places

in a wooded area behind Legg’s residence. A federal magistrate judge issued a report and

recommendation in March 2000 recommending that the motion to suppress be denied. No

objections were filed by either side at that time to the report and recommendation.

       During the trial in November 2000, Officer Bryant admitted that she had fabricated part of

her affidavit and that she had never purchased cocaine from Legg, and she had only witnessed one

occasion of someone purchasing cocaine from Burnette. Based on this admission by Officer Bryant,

Legg renewed his motion to suppress. The court found that Officer Bryant did fabricate parts of her

affidavit and struck those parts of her affidavit. After striking those parts, the court found that

sufficient probable cause remained to support issuance of the warrant in and around Legg’s

property. The court relied on those portions of the affidavit that stated that Officer Bryant had

witnessed Legg preparing and consuming crack cocaine at his residence, directing an unknown

person to purchase cocaine from Burnette and observing Burnette retrieving cocaine hidden in or

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United States v. Sexton

near the garage on the property. Legg has not disputed the veracity of these statements in the

affidavit.

        At the suppression hearing during the trial in November 2000, Officer Narramore, a member

of the surveillance team, testified that he positioned himself on a ridge about 80-100 feet above the

cabins. He saw Legg walk by him about 20 feet away on a logging road carrying a container

wrapped in black tape, which he hid under a rock. He walked 20 more feet and placed another

container under another rock. The officers investigated after Legg left and found the 6 ounces of

cocaine in one container and the $4100 in the other.

        The search warrant, even with the discredited portions removed in accordance with Franks,

gave the officers ample probable cause to be on or near the property preparing to execute the search

warrant. The officer then witnessed the suspicious behavior by Legg when he was hiding the two

containers, giving him probable cause to investigate what Legg had hidden. The “plain view”

doctrine authorizes the seizure of the items found. It is well settled that observations of “objects

falling into the plain view of an officer who has a right to be in the position to have that view . . .

may be introduced in evidence. Coolidge v. New Hampshire, 403 U.S. 443, 465 (1971); Harris v.

United States, 390 U.S. 234, 236 (1968) (per curiam).

                    B. Ex Parte Communication between Judge and Juror

        Sexton contends that a brief ex parte communication concerning personal matters between

the court and three jurors was error. When it became evident that the trial was going to take longer

than anticipated, the court entertained requests by the jurors to be excused for personal reasons.

Ultimately one juror was excused. “There is scarcely a lengthy trial in which one or more jurors do

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United States v. Sexton

not have occasion to speak to the trial judge about something, whether it relates to a matter of

personal comfort or to some aspect of the trial.” Rushen v. Spain, 464 U.S. 114, 118 (1983). The

court told the parties he planned to hear from the jurors about personal hardships relating to the

lengthy trial. No party objected, so we review for plain error and find none.

                                 C. Sufficiency of the Evidence

       Defendant Sexton argues that the evidence is insufficient to convict him of conspiracy. We

have held that:

       In determining whether the evidence supporting [the defendant's] conviction is
       sufficient, we must ask “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. Humphrey, 279 F.3d 372, 378 (6th Cir. 2002) (quoting Jackson v. Virginia, 443 U.S.

307, 319 (1979)). In order for a criminal defendant to be found guilty of conspiracy under 21 U.S.C.

§ 846, the government must prove, beyond a reasonable doubt: (1) an agreement by two or more

persons to violate the drug laws, and (2) knowledge of, intention to join, and participation in the

conspiracy on the part of each conspirator. United States v. Maliszewski, 161 F.3d 992, 1006 (6th

Cir.1998).

       Evidence from coconspirators, law enforcement, informants and the recorded controlled

purchases demonstrate Sexton’s role as the main supplier for the conspiracy. The evidence

demonstrates that Sexton was the main supplier for Moss, Legg and Romans; other witnesses also

stated that Sexton was their main supplier. At least five witnesses (Estill, Jones, Elizabeth Sexton,

Thompson and Phillips) identified Sexton as their drug supplier. Robert Thompson testified that he



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United States v. Sexton

purchased cocaine directly from Sexton, but Sexton told him to purchase from someone else in the

future. In tape recordings made between Sarah Moss and Eddie Goins during controlled buys Goins

made from Moss, Moss identifies Sexton as her supplier. Law enforcement officials who monitored

the controlled buys between Goins and Romans observed Romans meeting with Sexton immediately

following drug sales by Romans. Drugs were frequently sold from Sexton’s Rhode House bar,

including the controlled buys. Viewing the evidence in a light most favorable to the government,

there is no question that the government offered sufficient evidence during trial from which a

reasonable jury could find Sexton to be guilty beyond a reasonable doubt of conspiracy to possess

with the intent to distribute cocaine in violation of 21 U.S.C. § 846.

                                       D. Jury Instructions

       Defendant Romans claims that the court failed to instruct the jury on his defense theory –

a theory based solely on the fact that because Goins lied on two fabricated tapes, any evidence

connected to him should be disregarded. No specific instruction was submitted on Romans’ defense

theory, but Romans did request a specific instruction that Goins had fabricated evidence and

therefore all the tapes between Goins and Romans should be disregarded. The district court decision

not to give this specific instruction was not error. The jury had been told about the fabricated tapes,

and the defense had told them repeatedly that Goins was untrustworthy. A separate jury instruction

about this untrustworthiness was not required.

                            E. Remaining Issues Concerning Sexton

       The remaining issues deal with Sexton’s complaint that there was prosecutorial misconduct

in connection with the cross-examination of his witnesses, both fact witnesses and character

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United States v. Sexton

witnesses, and that the judge was biased against his counsel and therefore “chilled” his defense,

resulting in ineffective assistance of counsel. He also claims the court erred in limiting his character

witnesses to three.

          As to the prosecutorial misconduct in connection with the cross-examination of his

witnesses, Sexton charges that the government made impermissible inquiries to these witnesses to

establish “guilt by association.” As discussed supra, the cross-examination was generally proper

and any evidentiary error was harmless. To rise to the level of prosecutorial misconduct, Sexton

must demonstrate intentional misconduct or reckless disregard for the truth by the prosecution in its

cross-examination. Sexton presents no evidence that any errors during cross-examination rise to that

level.

         The “judicial bias” claim is meritless. This was a 23-day trial and the district court was

called upon to make difficult rulings. A review of the testimony and rulings provide no evidence

of bias against defendant Sexton or any other defendant.

                                       IV. Sentencing Issues

                                        A. Drug Quantities

         The district court sentenced defendants under 21 U.S.C. § 841(b)(1)(C), which allows a

maximum sentence of 240 months when more than five kilograms of cocaine are involved.

Although the indictment did not specify the quantity of cocaine and the jury did not find any specific

amount of cocaine attributable to the conspiracy, the trial court found that the conspiracy conviction

involved 15.05 kilograms of cocaine. Sexton was sentenced to 238 months, Legg to 196 months and

Romans to 148 months.

                                                 -22-
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United States v. Sexton

       The defendants claim that Apprendi v. New Jersey, 530 U.S. 466 (2000), was violated by

the district court when, in determining base offense levels under the Guidelines, it held the

defendants responsible for a quantity of drugs not determined by the jury. The fact that the district

judge computed the defendants' sentences under the Guidelines using a quantity of drugs not found

by the jury is irrelevant under Apprendi so long as the resulting sentence is below the prescribed

statutory maximum for the conviction. See United States v. Solorio, 337 F.3d 580, 596-97 (6th

Cir.), cert. denied, 540 U.S. 1063 (2003); United States v. Lawrence, 308 F.3d 623, 634 (6th Cir.

2002) (“Apprendi by its terms applies only where the finding ‘increases the penalty for a crime

beyond the prescribed statutory maximum,’ and we have squarely held that Apprendi does not apply

to the Guidelines.”); United States v. Garcia, 252 F.3d 838, 843 (6th Cir. 2001) (“Apprendi does not

purport to apply to penalties in excess of any particular range or based on any particular offense

level under the Sentencing Guidelines.”). As the sentences did not exceed the standard range

applicable to their convictions, these arguments are without merit.

       Since the filing of the briefs in this case, however, the Supreme Court has held

unconstitutional a sentencing scheme under which a state court imposed a sentence exceeding the

statutory maximum on the basis of facts that were neither admitted by the petitioner nor found by

a jury. Blakely v. Washington, --- U.S. ----, 124 S. Ct. 2531 (June 24, 2004); see also United States

v. Booker, 375 F.3d 508 (7th Cir. 2004), cert. granted, 2004 WL 1713654 (Aug. 2, 2004), oral

argument held, 2004 WL 2331491 (Oct. 4, 2004). Sexton filed a citation update with this Court

requesting that the court vacate his sentence in light of Blakely. In United States v. Koch, 383 F.3d

436 (6th Cir. 2004), the Court decided en banc that Blakely does not apply to the federal sentencing

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United States v. Sexton

guidelines. If the Supreme Court decides to the contrary in Booker, the defendants may file a

petition for rehearing or for certiorari and renew their request.

                                      B. Role in the Offense

        Sexton and Legg contend that their roles in the conspiracy did not warrant an enhancement

pursuant to U.S.S.G. § 3B1.1(b). U.S.S.G. § 3B1.1(b) calls for an increase in defendant’s base

offense level if he occupied a position of leadership or supervision. The comment to § 3B1.1(b) lists

relevant factors to be considered.

        The evidence established that Sexton was the organizer or leader of a large group of people,

including Legg, Romans and Moss. Sexton dictated who would receive cocaine to sell and the price

to be charged. The evidence also clearly showed that Legg distributed cocaine through several

individuals, including Randal Trevino, Herbie Payne, Darlene Estill, Sarah Moss and defendant

Romans. The conspiracy involved more than the five people necessary for an adjustment under the

guideline. The four-level enhancement for Sexton and the three-level enhancement for Legg were

not error.

        For the foregoing reasons, the judgment of the district court is affirmed.




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