                NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                          File Name: 08a0177n.06
                             Filed: April 2, 2008

                                           07-5076

                         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
WILLIAM BROWN,                                 )   EASTERN DISTRICT OF KENTUCKY
                                               )
       Defendant-Appellant.                    )




       Before: DAUGHTREY and McKEAGUE, Circuit Judges; GWIN,* District Judge.


       PER CURIAM. The defendant, William Brown, was convicted on four counts of a

multi-count indictment charging him with conspiring to distribute 50 grams or more of crack

cocaine and possessing with intent to distribute five grams or more of crack cocaine, in

violation of 21 U.S.C. § 841(a)(1) and § 846, and two counts of aiding and abetting others

in the distribution of crack cocaine, in violation of 21 U.S.C. § 841(a)(1) and 18 U.S.C. § 2.

He appeals, challenging the admissibility of opinion testimony by two government

witnesses, the district court’s failure to give a cautionary instruction on the dual role of a

witness who testified both as to fact and to opinion, and the propriety of the district court’s




       *
         The Hon. James S. Gwin, United States District Judge for the Northern District of Ohio,
sitting by designation.
07-5076
United States v. Brown

order sentencing Brown as a recidivist without submitting evidence of his prior convictions

to the jury. We find no reversible error and affirm.


       Defendant Brown and five co-defendants were indicted for engaging in a drug-

trafficking operation in Kenton County, Kentucky, in May 2006. At the time of his arrest,

Brown was found in possession of approximately 6.5 grams of crack cocaine, which he

acknowledged was crack that he had cooked to sell, and several small scales. Brown also

admitted that he had been cooking crack for his cousin and co-defendant, Justin

Englemon, and agreed to cooperate with the police in the hope of mitigating his

punishment. After signing a confidential-informant agreement, however, Brown sold drugs

for provision to an undercover officer and cooked additional crack for Englemon, both

without police permission and contrary to the agreement.


       Brown’s five co-defendants entered guilty pleas to various counts of a superceding

indictment. Brown went to trial and was convicted on all four of the counts charged against

him. The jury indicated on a special verdict form that it found Brown to have been involved

with 50 or more grams of crack cocaine on one count, five grams or more of crack cocaine

on a second count, 50 grams or more of crack cocaine on a third, and “a detectable

amount” on the last count. At sentencing, he was subject to the application of 21 U.S.C.

§ 841(b)(1)(A), which mandated a minimum sentence of life imprisonment on two of the

counts, based on his prior felony drug convictions. In addition, the district court sentenced

Brown to serve concurrent 360-month terms on the remaining two convictions.


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07-5076
United States v. Brown

       On appeal, the defendant first challenges the district court’s decision to allow

opinion testimony from two government witnesses who had not been declared to be

experts in their fields. We ordinarily review the admissibility of expert testimony for abuse

of discretion. See Barnes v. Kerr Corp., 418 F.3d 583, 588 (6th Cir. 2005). However, in

the absence of a contemporaneous objection to the testimony, our review is for plain error

only. See United States v. Johnson, 488 F.3d 690, 697 (6th Cir. 2007).


       Duane Rolfsen, an agent with more than 20 years of experience in law enforcement

and narcotics work, testified as a fact witness because he was part of the team that

executed the arrest warrant against Brown. On direct examination, the prosecutor first

inquired as to Rolfsen’s experience as a police officer, eliciting information about his

specialized training and experience in the areas of narcotics investigation and narcotics

sales and production practices. Rolfsen then offered additional testimony regarding his

role in the raid on Brown’s home and his involvement in the chain of custody of evidence

seized during that raid. Finally, upon solicitation by the prosecutor, Rolfsen offered his

opinion that the quantity of crack seized was consistent with distribution, not personal use,

which drew an objection from the defendant that the testimony constituted a legal

conclusion. Citing United States v. Thomas, 74 F.3d 676 (6th Cir. 1996), the district court

overruled this objection. There was no objection to Rolfsen’s testimony as improper opinion

testimony.




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United States v. Brown

       Similarly, the government attorney explored Susan Vanlandingham’s education and

experience on direct examination. A forensic specialist for the Kentucky State Police, she

testified about the specific tests she had performed in Brown’s case and established the

chain of custody of drugs seized during the investigation.              The prosecutor asked

Vanlandingham whether, in her opinion, the baggies confiscated during the raid contained

controlled substances; she testified, based on her laboratory testing, that they contained

cocaine base. The defendant did not object to her opinion testimony in any respect.


       Because in the first instance the defendant’s objection was not specifically directed

to the alleged error of which he now complains, and because in the second instance there

was no objection at all, we review the current claims for plain error only:


       This court reviews issues involving the admissibility of expert testimony for
       plain error where no objection was made at trial. Under this standard, the
       defendant must demonstrate (1) error, (2) that was plain, and (3) that
       affect[s] substantial rights. If all three conditions are met, an appellate court
       may then exercise its discretion to notice a forfeited error, but only if (4) the
       error seriously affected the fairness, integrity or public reputation of the
       judicial proceedings.


Johnson, 488 F.3d at 697 (internal citations and quotation marks omitted). In this case,

it is clear that any error, if it occurred, did not affect the defendant’s substantial rights. The

qualifications of both witnesses were made a matter of record, and neither testified outside

the limits of those qualifications.




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07-5076
United States v. Brown

       Brown next argues that the district court committed plain error by permitting Rolfsen

to testify both as a fact witness and an expert witness without providing a cautionary

instruction to the jury concerning his dual role. Although there was no request for such an

instruction, the defendant insists that its omission was plain error. In support of this claim,

he relies on United States v. Lopez-Medina, 461 F.3d 724, 745 (6th Cir. 2006), in which

we held that the failure to provide the jury with a dual-role instruction was plain error. We

conclude that Brown has read too much into the Lopez-Medina holding, which clearly

turned on the facts in that case. Perhaps the most significant fact was the district court’s

failure in Lopez-Medina to give either a dual-role instruction or an instruction on how to

weigh expert testimony. Id. at 743. Moreover, the determination of plain error in that case

was also premised on cumulative error, i.e., on the lack of any cautionary instruction

regarding expert testimony “in conjunction with the other evidentiary errors [that] occurred

in Medina’s trial.” Id. at 745. Here, by contrast, there was a jury instruction on the weight

to be given expert testimony, and there are no “other evidentiary errors” apparent in the

record.


       Given the overwhelming nature of the evidence against the defendant, including

testimony by some of his accomplices and his own incriminating statements to police, it is

clear that Brown’s substantial rights were not affected. Nor were the trial proceedings

impugned in any way by the court’s failure to follow what might be described as the better

practice of delivering a dual-role instruction when a witness both testifies as to fact and



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07-5076
United States v. Brown

gives an opinion. As a result, we find no plain error resulting from the lack of an explicit

dual-role instruction in this case.


       Brown’s challenge to his sentence is based on his claim that the district court

violated his Sixth Amendment right to trial by jury by imposing life sentences under 21

U.S.C. § 841(b)(1)(A), based on prior convictions for felony drug offenses found by the

court, not a jury. But, as the defendant concedes in his brief on appeal, we have

repeatedly ruled to the contrary – and with good reason. In Almendarez-Torres v. United

States, 523 U.S. 224, 226 (1998), the Supreme Court held that under federal recidivist

statutes, the existence of prior convictions is a sentencing factor, not an element of the

offense for which the defendant is being sentenced and, moreover, that it is a factor on

which courts are authorized to base an increase in punishment. Subsequently, in Apprendi

v. New Jersey, 530 U.S. 466, 490 (2000), the Supreme Court affirmed Almendarez-Torres,

holding that “[o]ther than the fact of a prior conviction, any fact that increases the penalty

for a crime beyond the prescribed statutory maximum must be submitted to a jury, and

proved beyond a reasonable doubt.” The Supreme Court has recently reaffirmed the

exception contained in Apprendi. See United States v. Booker, 543 U.S. 220, 244 (2005)

(affirming the Apprendi holding that the existence of prior convictions used to increase

sentences may be found by the court and do not require determination by a jury). Not

surprisingly, we have uniformly adhered to the Almendarez-Torres / Apprendi / Booker line

of cases. See, e.g., United States v. Beasley, 442 F.3d 386, 391 (6th Cir. 2006); United

States v. Hill, 440 F.3d 292, 299 (6th Cir. 2005), United States v. Barnett, 398 F.3d 516,

                                            -6-
07-5076
United States v. Brown

524-25 (6th Cir. 2005). Under this controlling Supreme Court and Sixth Circuit precedent,

there simply is no basis for a determination that the defendant’s Sixth Amendment rights

were violated by the life sentences imposed in this case.


                                    CONCLUSION


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




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