                       NOT RECOMMENDED FOR PUBLICATION
                               File Name: 16a0350n.06

                                    Nos. 14-2498, 14-2528                             FILED
                                                                                Jun 24, 2016
                         UNITED STATES COURT OF APPEALS                     DEBORAH S. HUNT, Clerk
                              FOR THE SIXTH CIRCUIT


UNITED STATES OF AMERICA,                               )
                                                        )
       Plaintiff-Appellee,                              )
                                                        )
              v.                                        )     ON APPEAL FROM THE
                                                        )     UNITED STATES DISTRICT
RUFUS DEON WILSON and JOHN ROBERT                       )     COURT FOR THE EASTERN
DAVIS,                                                  )     DISTRICT OF MICHIGAN
                                                        )
       Defendants-Appellants.                           )



BEFORE: SUTTON and GRIFFIN, Circuit Judges; and OLIVER, District Judge.

       GRIFFIN, Circuit Judge.

       A jury convicted defendants Rufus Wilson and John Davis of conspiring to murder a

federal employee, among other crimes. We affirm their convictions because the government

introduced sufficient evidence to convict, including that necessary to rebut proof of entrapment,

and any error from introducing a confidential informant’s recorded statements was harmless. We

decline to disturb Wilson’s sentence because the district court did not plainly err in sentencing

him to life imprisonment and his sentence does not violate the Eighth Amendment.

                                               I.

       Lebron Nunn is a convicted felon and experienced confidential informant. In 2012, when

his brother Roman Whitfield was charged with various federal crimes, Nunn approached the

       
       The Honorable Solomon Oliver, Jr., Chief Judge, United States District Court for the
Northern District of Ohio, sitting by designation.
Nos. 14-2498/2528, United States v. Wilson, et al.


investigating federal agent, Joseph Nether, to make a deal.          Nunn offered to work as a

confidential informant if Nether told the prosecutor of Nunn’s cooperation. At some point, Nunn

informed the agent that Nunn’s step-brother, defendant John Davis, trafficked in firearms and

narcotics. Nether reviewed Davis’s criminal history, which showed prior drug and firearm-

related convictions, and encouraged Nunn to attempt to buy guns and drugs from Davis. Shortly

thereafter, Davis arranged a sale of stolen firearms to Nunn and, separately, an illegal drug sale.

       In 2013, Nunn told Nether that Davis was interested in conducting an armed home

invasion of a drug dealer. The agent again reviewed Davis’s criminal history and observed that

Davis had been convicted of armed home invasion and firearms-related offenses. Nether advised

Nunn to set up a meeting between Davis and Nether (undercover) so Nether could present Davis

with an opportunity to rob a drug dealer.

       The first meeting was on April 23, 2013. This and the following meetings were video

and audio recorded. Nether presented the following fictitious scenario: he was a disgruntled

drug courier seeking to rob up to 10 kilograms of narcotics from a drug supply house. Nether

said there would be at least two armed people inside so he needed “a crew of professionals” to

rob the supply house and “didn’t want any amateurs[,] just professionals, people that had done

this before.” Davis said he could do it and would find three accomplices.

       Davis left the meeting with Nunn, who was wearing a recording device. Davis suggested

that they rob Nether after the drug pick-up instead of going inside the house with armed guards.

Later, Davis made several calls to co-defendant Rufus Wilson. The next day, in a recorded

phone call to Nunn, Davis said he and Wilson had discussed an alternative to the proposed drug

house robbery. Two days later, in another recorded call, Davis said he had been sitting up all

night making a plan with Wilson. Then Davis asked Nunn “how [Nunn] [felt] about the ol’


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Nos. 14-2498/2528, United States v. Wilson, et al.


boy,” referring to Nether. Nunn said he liked Nether, and Davis expressed disappointment in his

voice, responding, “Okay well, alright.” Later that day, Davis met Nunn to discuss the robbery.

Davis suggested that, instead of going into the drug house, they crash their car into Nether and

“[t]ake whatever he got off of him.”

       Nether, Nunn, and Davis met for a second time on April 26. During the meeting, Davis

told Nether that Wilson was “talking ’bout going up in there shootin’” and “going in there [and]

lay everybody down.” Davis explained that both he and Wilson would be shooting: “[L]isten to

me, this is what I’m telling you. We both shooters.” As he said this, he made hand gestures as if

he was holding two handguns. Davis said he would not hesitate to shoot: “[M]otha fuckers

getting twitchin’ and moving, [Wilson] ain’t gonna, I’m not gonna hesitate.” Wilson called

Davis midway through the meeting and Davis handed the phone to Nether. Nether later testified

that he explained the robbery plan directly to Wilson so he would “have the whole story for

himself so he could make his own decision” about participating. Wilson agreed to participate by

responding affirmatively at various times, like to Nether’s statement, “I mean is this cool to

you?,” by saying “Oh, yeah it[’]s cool” and, “[i]t’s a go on this end.” After the meeting, Davis

told Nunn that they should kill Nether: “That’s why I asked you how you feel about the nigga

. . . We don’t need nothing come back to you, or us . . . . [D]ust they ass off or dust his ass off

with ‘em.”

       On April 29, Nether, Nunn, and Davis met again. This time, Wilson attended in person.

On the way to the meeting, Nunn picked up Davis. During the ride, Davis said, “me and

[Wilson] was talkin . . . he saying it’s a risk us going up in that [house] ‘cause there ain’t no

telling . . . .” Davis said he wanted to rob Nether instead: “[R]un straight into his Mother fucker

car . . . boom! . . . [A]nd whatever he got on him we steal.” Nunn confirmed, “[i]t’s


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Nos. 14-2498/2528, United States v. Wilson, et al.


understood. Fuck I told you I’m down, fuck it. We knocking his ass, fuck it, knocking his ass

off, fuck it. I’m ready, hear me.” Davis responded, “Knock him off, nigga.” Then they picked

up Wilson. When he got into the car, he said about Nether, “[d]ig what I’m saying, that nigga

can’t leave. . . . That nigga can’t leave man.” To keep the robbery quiet, Wilson said, “I want,

knives man. I cut all them niggas up. . . . Ain’t gotta be no pop, pop, pop, pop, pop . . . . That’s

how I’m gonna do it.” Davis responded, “when it come to this kind of money you got to spill

blood. Aint no gentlemen.” Wilson observed that if Nether were to leave the scene, “[h]e gonna

testify [and then w]e ain’t got nothing. This nigga done left the scene, he set us up . . . . That

nigga can not leave that scene.” Davis repeated his plan to run into Nether’s car, “[w]hatever he

got, whatever he got on him, we gonna get that . . . . Fuck the house . . . .” Then they discussed

taking everything from Nether, “the money he got, the phone, everything.” Davis repeated that

he wanted to “take his cell phone, when, when he outta there, take everything from him . . . .

Take his pants off of him. Leave him in that bitch naked.” Just before they met Nether, Davis

said they should continue to pretend they were going to rob the drug house as originally

proposed by Nether.

       At the April 29 meeting, the men discussed wearing tactical gear during the robbery and

wrote down their clothing sizes for Nether. After the meeting, Nunn, Davis, and Wilson again

talked about killing Nether. Davis said, “He dead. Let’s kill his ass.” Davis and Wilson

observed that if Nether got all ten kilograms, he would abscond with the drugs.             Wilson

responded, “He gotta die . . . blow his brains out anyway . . . . Blow his brains out.”

       On May 2, Nether called Davis to make sure everyone was still participating in the

robbery, which Davis confirmed. That day, Nunn, Davis, and Wilson met Nether in a parking

lot, where Nether asked if they were “still good with everything?” They confirmed by nodding


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Nos. 14-2498/2528, United States v. Wilson, et al.


their heads and stating, “yeah.” They followed Nether to a warehouse to get the tactical gear and

a van. There, Nether said he would be picking up two kilograms of powder cocaine and one

kilogram of crack cocaine. Shortly thereafter, federal agents waiting nearby arrested defendants.

As he was arrested, Wilson threw a handgun into a nearby stairwell. The gun was loaded with

two rounds of ammunition in the magazine and a hollow-point bullet in the chamber. Trial

testimony later established that a hollow-point bullet typically causes more serious wounds to

human targets. Wilson also had an 8-inch serrated-blade knife and a knit cap, and was wearing

latex gloves. Next to Davis, the agents found latex gloves and a black mask.

       The government charged Davis and Wilson with conspiracy to murder an employee of

the United States, in violation of 18 U.S.C. §§ 1114, 1117 (Count 3), conspiracy to possess with

intent to distribute controlled substances, 21 U.S.C. §§ 841(a), 846 (Count 4), and possession of

a firearm in furtherance of a drug trafficking crime and aiding and abetting, 18 U.S.C. §§ 2,

924(c) (Count 5). Additionally, Davis was charged with possession of a firearm as a felon,

18 U.S.C. § 922(g) (Count 1), and attempt to distribute a controlled substance, 21 U.S.C.

§§ 841(a), 846 (Count 2). Wilson was also charged with possession of a firearm as a felon,

18 U.S.C. §§ 922(g), 924(e) (Count 6), and possession with intent to distribute controlled

substances, 21 U.S.C. § 841(a) (Count 7).1 A jury convicted defendants on all counts. The

district court sentenced Davis to 300 months of imprisonment and Wilson to mandatory life

imprisonment.

                                               II.

       In this consolidated appeal, defendants maintain that the government’s trial evidence was

insufficient to convict, the district court’s admission of Nunn’s statements through video and

       1
        While Wilson was detained pending trial, he called his girlfriend about distributing his
crack cocaine stored at her house. That is the factual basis for Count 7.
                                               -5-
Nos. 14-2498/2528, United States v. Wilson, et al.


audio recordings contravened the Sixth Amendment’s Confrontation Clause, and the district

court abused its discretion in allowing the jury to view transcripts of the video and audio

recordings.    Additionally, Wilson claims the district court erred in sentencing him to life

imprisonment.

                                                A.

         Most contested is whether the government produced sufficient evidence to overcome

defendants’ entrapment defenses.      Wilson also challenges the sufficiency of the evidence

supporting (1) the drug quantity for the conspiracy to possess with intent to distribute controlled

substances and (2) his intent to conspire to commit murder.

                                                1.

         Defendants first challenge the sufficiency of the government’s evidence to rebut their

entrapment defenses.2 At trial, the court instructed the jury on entrapment, but the jury convicted

defendants on all counts. “We must affirm a jury’s denial of an entrapment defense unless we

determine, viewing the evidence in the light most favorable to the government, that no

reasonable juror could have concluded beyond a reasonable doubt that the defendant was

predisposed to commit the offense.” United States v. Anderson, 76 F.3d 685, 690 (6th Cir.

1996).

         “A valid entrapment defense requires proof of two elements: (1) government inducement

of the crime, and (2) lack of predisposition on the part of the defendant to engage in the criminal

activity.” United States v. Khalil, 279 F.3d 358, 364 (6th Cir. 2002). “The government has the

burden of proving beyond a reasonable doubt that the defendant was already willing to commit

the crime.” Anderson, 76 F.3d at 689 (citation omitted). “Predisposition, the principal element

         2
       We need not resolve whether Davis forfeited this claim of error, as suggested by the
government, because his argument fails on the merits.
                                                -6-
Nos. 14-2498/2528, United States v. Wilson, et al.


in the defense of entrapment, focuses upon whether the defendant was an ‘unwary innocent’ or,

instead, an ‘unwary criminal’ who readily availed himself of the opportunity to perpetrate the

crime.” Mathews v. United States, 485 U.S. 58, 63 (1988) (internal quotation marks and citation

omitted); see also United States v. Pennell, 737 F.2d 521, 534 (6th Cir. 1984) (“The central

inquiry . . . is whether law enforcement officials implanted a criminal design in the mind of an

otherwise law-abiding citizen or whether the government merely provided an opportunity to

commit a crime to one who was already predisposed to do so.”).               Relevant factors for

determining predisposition include: (1) “the character or reputation of the defendant, including

any prior criminal record,” (2) “whether the suggestion of the criminal activity was initially

made by the Government,” (3) “whether the defendant was engaged in the criminal activity for

profit,” (4) “whether the defendant evidenced reluctance to commit the offense, overcome only

by repeated Government inducement or persuasion,” and (5) “the nature of the inducement or

persuasion supplied by the government.” Khalil, 279 F.3d at 365.

       Defendants vigorously dispute the first factor―character or reputation. They contend

that none of their prior convictions are sufficient in kind or severity to show predisposition. The

government argues that a reasonable jury could conclude that defendants’ character and

reputation weighed in favor of predisposition based on a combination of their (1) prior

convictions related to violence, robbery, and drugs, (2) statements related to robbing and killing

Nether, and (3) actions consistent with those statements on the day of arrest.

       Viewing the evidence in the light most favorable to the government, the first factor

supports the government. Davis has prior convictions for home invasion, larceny in a building,

and assault with intent to commit bodily harm. At trial, the government presented evidence that

Davis had previously shot a man from behind during a neighborhood scuffle and participated in


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Nos. 14-2498/2528, United States v. Wilson, et al.


an armed home invasion during which he or a co-defendant pointed a shotgun at a six-year-old

victim. Wilson has convictions for domestic violence, unarmed robbery, and aggravated drug

trafficking. Wilson concedes that his convictions are “arguably relevant” but disputes their

weight based on date and similarity. Our court has rejected a “narrow” interpretation of the

similarity required for a prior conviction to support predisposition for entrapment. “We decline

to endorse [a] narrow and hyper-technical view . . . . Predisposition evidence must be based on

conduct near enough in kind to support an inference that the defendant’s purpose included

offenses of the sort charged, although it is not necessary that the past conduct be precisely the

same as that for which the defendant is being prosecuted.” United States v. Al-Cholan, 610 F.3d

945, 951 (6th Cir. 2010) (internal quotation marks, alterations, and ellipses omitted). In this

case, there is persuasive evidence that both defendants were predisposed to commit violence,

robbery, and drug-related offenses. Moreover, their recorded statements describing their self-

designed plan to rob and kill Nether, viewed in the government’s favor, support that they were

predisposed to rob and kill. A reasonable jury could conclude each defendant’s character weighs

in favor of predisposition.   Under our deferential standard of review, that is all that the

government must show for a given factor.

       The remaining factors weigh in favor of the government or are neutral. The second

factor―whether    the   suggestion    of   criminal   activity   was   initially   made   by   the

government―supports the government. Although the government suggested robbery of a drug

house to defendants, defendants admitted in recorded statements that they spent hours (without

Nunn) designing their own plan to rob and kill Nether, at least with respect to Counts 3−6 (drug




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Nos. 14-2498/2528, United States v. Wilson, et al.


conspiracy, murder conspiracy, and related firearms charges). Thus, with respect to Counts 3−6,

a jury could view this factor in favor of the government.3

        The third factor―profit―weighs heavily in favor of the government. Davis argues that

he never actually made a profit from his criminal activity, and Wilson argues that the “profit was

akin to putting food on the table.” Neither argument undermines that each defendant was highly

motivated by the prospective profit to conspire to distribute drugs and kill Nether (Counts 3−6),

evidenced by their repeated mention of profits in the recordings. Moreover, Davis emphasizes

the prospect of making a considerable profit to prove inducement. That cuts against him with

respect to this factor.

        The fourth factor―reluctance to commit the offense―likewise weighs in the

government’s favor. Defendants were reluctant to risk their lives by entering a drug house with

armed guards, so they conspired to rob Nether instead. They never showed reluctance to rob and

kill Nether. Quite the opposite, the government played recordings for the jury of defendants

expressing enthusiasm for their plan.

        Finally, the fifth factor―the nature of the persuasion or inducement by the

government―weighs in favor of the government. Inducement requires “something more than

merely affording an opportunity or facilities for the commission of the crime.” United States v.

Poulsen, 655 F.3d 492, 502 (6th Cir. 2011) (alteration omitted). It requires “‘an opportunity plus

something else―typically, excessive pressure by the government upon the defendant or the

government’s taking advantage of an alternative, non-criminal type of motive.’” United States v.


        3
        As to Counts 1 and 2 (Davis’s convictions for the drug and gun sales), the government
suggested the gun and drug sales (through Nunn). But the only other factor that might weigh in
Davis’s favor for Counts 1 and 2 is the third factor, profit. Even assuming those two factors
weigh in Davis’s favor, the remaining factors weigh in the government’s favor. As to Count 7
(drug distribution from jail), Wilson does not argue that he was entrapped.
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Nos. 14-2498/2528, United States v. Wilson, et al.


Dixon, 396 F. App’x 183, 186 (6th Cir. 2010) (quoting United States v. Gendron, 18 F.3d 955,

961 (1st Cir. 1994)) (emphasis in original). In other words, the prospect of substantial profit,

standing alone, is not inducement. In this case, defendants argue that the government unfairly

used their familial ties to Nunn to induce them. (Wilson is Nunn’s step-cousin.) Although a jury

may have believed defendants were loyal to Nunn, there was competing evidence that could have

led the jury to view this factor in the government’s favor, such as defendants’ continued

expression of willingness to commit the offense and Davis’s admissions that he “[c]ould have

said no” but went along because he was intrigued by the opportunity, and that he continued to go

to the meetings with Nunn and Nether because of “the temptation for the amount of drugs that

was going to be in there . . . . I’m looking at ten times 40. That’s $400,000, and I ain’t got

$400,000. I’ll take a chance on going into [an] empty house, but a house with guys with guns, I

don’t know.”

       Ultimately, it is difficult for defendants to show entrapment under the facts of this case:

they were presented with one crime (robbing a drug house), but self-designed another (arguably

more ruthless) one (conspiracy to murder). The government did not plant in their minds that

they should rob and kill Nether. Defendants cite no cases, and we find none, in which a

defendant has prevailed on an entrapment defense under similar circumstances. Guided by the

aforementioned factors, the government has introduced sufficient evidence to overcome

entrapment.

                                               2.

       Wilson also challenges the sufficiency of the evidence supporting the drug quantity for

Count 4. Wilson’s argument is that one of two scenarios was possible, but not both: either he

believed that Nether would get the full ten kilograms of drugs or Nether would get just the three


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Nos. 14-2498/2528, United States v. Wilson, et al.


kilograms he mentioned on the day of Wilson’s arrest. Thus, Wilson maintains that (1) there was

not enough time for him to form a conspiracy as to three kilograms before he was arrested, and

(2) allowing for alternative quantities based on mutually exclusive scenarios within a single

count creates a variance in the indictment.

       We review his first argument de novo, assessing “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.” Jackson v. Virginia, 443 U.S. 307,

319 (1979). We draw “all reasonable inferences in support of the jury’s verdict and will reverse

a judgment for insufficient evidence only if the judgment is not supported by substantial and

competent evidence upon the record as a whole.” United States v. Stewart, 729 F.3d 517, 526

(6th Cir. 2013) (internal quotation marks omitted). “Substantial evidence” is “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.” United States

v. Taylor, 800 F.3d 701, 711 (6th Cir. 2015) (citation omitted). “In sum, a defendant claiming

insufficiency of the evidence bears a very heavy burden.” United States v. Callahan, 801 F.3d

606, 616 (6th Cir. 2015).

       The jury heard evidence that Nether told defendants he usually picked up one to three

kilograms of cocaine at a time and there were typically ten kilograms stored at the supply house.

The day of the arrest, Nether told them he would pick up three kilograms of cocaine, including

two of powder cocaine and one of crack cocaine. Defendants had already conspired to kill

Nether and “[t]ake whatever he got off of him.” Nether’s statement on the day of the arrest was

consistent with his previous representations, and defendants voiced no objections, even though

they had consistently hoped they would score more than three kilograms when they robbed him.


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Nos. 14-2498/2528, United States v. Wilson, et al.


A rational jury could therefore find that Wilson conspired to possess with intent to distribute

more than one-half kilogram but less than five kilograms of powder cocaine and 280 grams or

more of crack cocaine, in violation of 21 U.S.C. §§ 841(a), 846.

       Regarding Wilson’s second argument, a “variance occurs when the charging terms are

unchanged, but the evidence at trial proves facts materially different from those alleged in the

indictment.” United States v. Manning, 142 F.3d 336, 339 (6th Cir. 1998). “[T]o obtain reversal

of a conviction because of a variance between the indictment and the evidence produced at trial,

a two-prong test must be satisfied: (1) the variance must be demonstrated; and (2) the variance

must affect some substantial right of the defendant.” Id. “A substantial right is affected only

when a defendant proves prejudice to his ability to defend himself or to the overall fairness of the

trial.” Id. In this case, Count 4 of the second superseding indictment charged Wilson with

conspiracy to possess with intent to distribute 280 grams or more of crack cocaine and five

kilograms or more of powder cocaine (more than the one-half to five kilograms of powder

cocaine for which Wilson was ultimately convicted). The jury completed a special verdict form

that allowed it to specify the quantity for each drug. See United States v. Robinson, 547 F.3d

632, 637, 640 (6th Cir. 2008) (approving the use of a verdict form that requires jurors to specify

drug quantities). Consistent with Sixth Circuit Pattern Instruction 14.07A, the district court

instructed the jurors that they were permitted to find lesser quantities of drugs than alleged in the

indictment, and the jury convicted Wilson of a lesser quantity of powder cocaine. These facts

suggest the indictment, evidence, and verdict were consistent and there was no variance. But

even if there were a variance, Wilson has no meaningful argument that his ability to defend

himself was prejudiced, and he offers none on appeal.




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Nos. 14-2498/2528, United States v. Wilson, et al.


                                                 3.

          Wilson also asserts that the evidence was insufficient to prove beyond a reasonable doubt

that he intended to conspire to murder Nether.4 At most, Wilson argues, the evidence supports a

conspiracy to rob Nether and leave him stranded but alive. Regarding various incriminating

statements about killing Nether, Wilson argues “he was simply boasting, and in reality had no

plan whatsoever.”

          The recordings of Wilson’s statements, taken together with the physical evidence at the

scene of arrest, are sufficient for a reasonable jury to conclude Wilson intended to conspire to

kill Nether. Wilson argues the incriminating statements on which the government relies are

consistent with a plan to rob Nether and leave him stranded but alive. The government’s theory

is that defendants intended to rob Nether but leave him dead.           Thus, the fact that many

statements are consistent with Wilson’s statement that Nether “can not leave the scene” is

unremarkable. Relevant is whether those statements are so inconsistent with an intent to kill that

a reasonable jury could not conclude beyond a reasonable doubt that defendants intended to kill

Nether. In our view, a reasonable jury could interpret Wilson’s statements regarding killing

Nether as more than merely boastful, and nothing else in the record precludes the reasonable

conclusion that Wilson intended to conspire to kill Nether, as opposed to leave him stranded but

alive. This is especially true under our deferential standard of review of sufficiency challenges.

          Wilson also asserts that Nunn was the only person who unequivocally spoke of killing

Nether.       But the jury heard dozens of recordings.    In the context of all the recordings, a

reasonable jury could interpret Wilson’s incriminating statements as referring to Nether,



          4
         We need not decide whether Wilson has preserved this issue because, even if he did, it
fails on the merits.
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Nos. 14-2498/2528, United States v. Wilson, et al.


particularly in light of defendants’ preoccupation that Nether would flee the scene with the drugs

and testify against them.

       Finally, Wilson disputes that he ever used the phrases “cut” or “cutting” in reference to

Nether. He says that one reference referred to the armed men in the stash house and another to

killing a turkey. But regardless of whether Wilson intended to use a knife to “cut” Nether, the

jury heard (1) Wilson’s statements about “blow[ing Nether’s] brains out” in the context of a

conversation about how Nether had to die or he would run away with the drugs and (2) evidence

that Wilson showed up to the warehouse with a handgun with a hollow-point bullet in the

chamber. That evidence is sufficient for a reasonable jury to conclude that Wilson intended to

conspire to kill Nether.

                                               B.

       Defendants also assert that the introduction of Nunn’s recorded statements violated their

Sixth Amendment confrontation rights. The government argues that Nunn’s statements were not

hearsay and any error was harmless. We review de novo. United States v. Henderson, 626 F.3d

326, 333 (6th Cir. 2010).

                                                1.

       The Confrontation Clause of the Sixth Amendment provides, “[i]n all criminal

prosecutions, the accused shall enjoy the right . . . to be confronted with the witnesses against

him.” U.S. Const. amend VI. This Clause “guarantees a defendant’s right to confront those who

‘bear testimony’ against him.” Melendez-Diaz v. Massachusetts, 557 U.S. 305, 309 (2009)

(quoting Crawford v. Washington, 541 U.S. 36, 51 (2004)) (internal quotation marks omitted).

“A witness’s testimony against a defendant is thus inadmissible unless the witness appears at

trial or, if the witness is unavailable, the defendant had a prior opportunity for cross-


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Nos. 14-2498/2528, United States v. Wilson, et al.


examination.” Id. “To trigger a violation of the Confrontation Clause, an admitted statement

must be testimonial in nature, and must be hearsay―that is, a ‘statement, other than one made by

the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the

matter asserted.’” United States v. Deitz, 577 F.3d 672, 683 (6th Cir. 2009) (quoting United

States v. Gibbs, 506 F.3d 479, 486 (6th Cir. 2007)). “We have held that statements by a

confidential informant are ‘testimonial’ and thus, subject to the Confrontation Clause. However,

we have also clarified that the Confrontation Clause does not bar the use of testimonial

statements for purposes other than establishing the truth of the matter asserted.” Id. (internal

quotation marks, citation, and brackets omitted).

       In this case, defendants objected to the admission of Nunn’s statements as hearsay and

for their inability to cross-examine him. The district court admitted Nunn’s statements as res

gestae5 because they provided background and context for defendants’ statements in the

recordings and granted defendants a standing objection at trial.         The record supports that

defendants knew that Nunn was the government’s confidential informant at least five months

before trial. Once the government determined that it would not call Nunn as a witness, the

district court ordered the government to provide defendants impeachment evidence about Nunn

(such as criminal history) but denied defendants’ motion to produce Nunn or disclose his

location.




       5
        The phrase “res gestae” “is generally defined as ‘the events at issue or others
contemporaneous with them.’ In the law of evidence, res gestae may be either a rule of
relevance that makes testimony about the events forming part of the res gestae admissible, or an
exception to the hearsay rule allowing for the admissibility of res gestae (e.g., if they accompany
or explain a declarant’s contemporaneous state of mind or physical sensations).” Bryan Garner,
Garner’s Dictionary of Legal Usage 777−78 (3d ed. 2011).


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Nos. 14-2498/2528, United States v. Wilson, et al.


       The vast majority of Nunn’s statements introduced at trial were not offered to prove the

truth of the matter asserted.        They provided background and context for defendants’

incriminating statements and gave meaning to their responses. For example, Davis asked Nunn

how he felt about Nether, to which Nunn responded that he liked Nether. Davis’s disappointed

reaction in his voice as he said, “Okay well, alright,” is difficult to understand outside the context

of the exchange. Later, Davis referenced this exchange when he suggested they kill Nether:

“That’s why I asked you how you feel about [Nether] . . . We don’t need nothing come back to

you, or us . . . . [D]ust they ass off or dust his ass off with them.” These were not offered to

prove the truth of the matter asserted (i.e. that Nunn actually liked Nether) but to give meaning to

Davis’s statements.6

       Beyond res gestae, the government had a second, non-hearsay reason for offering Nunn’s

statements. By presenting an entrapment defense, defendants opened the door to evidence

showing that Nunn did not induce defendants.            Introducing Nunn’s statements alongside

defendants’ for this purpose is not hearsay.

       The district court did admit a few questionable statements.7 However, we presume the

jury followed the district court’s instruction that the recordings were only introduced “for the

purpose of showing the context . . . not for the truth of what [Nunn said], but for the context.”

See, e.g., Greer v. Miller, 483 U.S. 756, 766 & n.8 (1987). Moreover, introduction of these few

       6
         At trial, Davis withdrew his objection to Exhibit 8, recorded telephone conversations
between Davis and Nunn and, separately, Davis and Nether. The government argued at oral
argument that Davis withdrew his objections to the use of Nunn’s statements for all exhibits, but
it appears that Davis merely withdrew his objection to Exhibit 8.
       7
        These include Nunn’s statements that Wilson and Davis were “more than down [for
committing the robbery] matter of fact, ain’t about being down, they more than down really,”
“they wanna hurt people,” and “aint no way [Wilson] go in there and let a mother fucker, one
person out . . . ’[c]ause ya’ll trigger happy mother fuckers too.”


                                                -16-
Nos. 14-2498/2528, United States v. Wilson, et al.


statements next to defendants’ numerous incriminating statements only amounts to harmless

error. See Henderson, 626 F.3d at 333.8

                                                2.

       Alternatively, Wilson argues that, even absent a Confrontation Clause violation, the

district court’s denial of his motion to produce Nunn or disclose his location compromised his

ability to present a defense. The government argues that Wilson knew Nunn’s identity, the

government was not required to disclose Nunn’s location, and it is disingenuous of defendants to

claim Nunn was “unavailable” as a witness because “defendants took no steps to call [Nunn] as a

witness.” “We review the district court’s decision to deny defendant’s motion for compulsory

process under an abuse of discretion standard.” United States v. Moore, 954 F.2d 379, 381 (6th

Cir. 1992).


       8
         Wilson briefly argues that Nether’s testimony “furthered” any Confrontation Clause
violation. Specifically, he argues that Nether “interpreted statements, explained expressions,
identified voices, and assigned nicknames in recordings” as he conveyed the government’s
theory of the case “with the imprimatur of testifying as a law enforcement officer.” For support,
Wilson cites United States v. Freeman, 730 F.3d 590 (6th Cir. 2013). But Freeman is
distinguishable. In Freeman, we addressed the extent to which agents may give lay opinion
testimony that interprets intercepted conversations “when the agents base their interpretations on
the collective knowledge that the agency obtained through the course of the investigation” and
explored the “risk that when an agent provides interpretations of recorded conversations based
on his knowledge of the entire investigation, the agent could impermissibly testify based upon
information not before the jury, including hearsay, and that the jury might think the agent is
privy to important knowledge about the case that the jury lacks.” United States v. Kilpatrick,
798 F.3d 365, 379−80 (6th Cir. 2015) (citing Freeman, 730 F.3d at 596−97). The problem in
Freeman was that the testifying agent “repeatedly substantiated his responses and inferences
with generic information and references to the investigation as a whole” and “the general
knowledge of the FBI” in violation of Federal Rule of Evidence 701, instead of specifying
“personal experiences that led him to obtain his information.” Id. (citing Freeman, 730 F.3d at
597). In this case, Nether’s trial testimony makes clear that he spoke from personal experience.
He was the investigating agent from beginning to end of the conspiracy and posed undercover as
a co-conspirator. He did not “lack[] the first-hand knowledge required to lay a sufficient
foundation for his testimony under Rule 701(a).” Freeman, 730 F.3d at 597. Therefore, we
cannot agree that Nether’s testimony transformed a few arguably hearsay statements into
anything more than harmless error.
                                              -17-
Nos. 14-2498/2528, United States v. Wilson, et al.


       A factually similar case is instructive. In United States v. Moore, the district court denied

the defendant’s motion to produce a confidential informant after he argued that the confidential

informant’s testimony could substantiate his entrapment defense.          Id. at 380−81 (citation

omitted). Our court explained that the Sixth Amendment “does not . . . require the government

to call every witness competent to testify, including special agents or informers. If the evidence

upon which a defendant is convicted was secured personally by government agents who testified,

the government is not required to produce the cooperating individual.” Id. at 381. “Further, with

respect to compelling production of confidential informants, the Supreme Court has made it clear

that ‘no fixed rule with respect to disclosure is justifiable.’” Id. (quoting Roviaro v. United

States, 353 U.S. 53, 62 (1957)). “The court must ‘balance the public interest in protecting the

flow of information against the individual’s right to prepare his defense. Whether a proper

balance renders nondisclosure erroneous must depend on the particular circumstances of each

case, taking into consideration the crime charged, the possible defenses, the possible significance

of the informer’s testimony, and other relevant factors.’” Id. (quoting Roviaro, 353 U.S. at 62)

(brackets omitted). “An informant must be disclosed only upon a showing by the defendant that

disclosure is essential to a fair trial.” Id. (citing United States v. Hanna, 341 F.2d 906, 907 (6th

Cir. 1965)) (emphasis added).

       Reviewing for abuse of discretion, the Moore court upheld the denial of the motion to

compel production because the defendant failed to show how disclosure of the informant would

“substantively assist his defense”: “He advanced no more than a simple statement that [the

informant’s] testimony might assist in his [entrapment] defense. . . . [Moreover, in the

defendant’s] own testimony [he] denied that the [informant] even made the [contested] statement

. . . which his counsel asserted the [informant] would describe.” Id. at 381−82.


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Nos. 14-2498/2528, United States v. Wilson, et al.


       In this case, Wilson’s request goes one step beyond the defendant’s in Moore. He argues

that although he knew Nunn’s identity, the district court erred by failing to require the

government to produce Nunn. The burden was on Wilson to show that examining Nunn was

“essential to a fair trial.” Id. at 381 (citing Hanna, 341 F.2d at 907). Like the defendant in

Moore unsuccessfully argued, Wilson contends that examining Nunn would have allowed

Wilson to test or substantiate his entrapment defense. But under an abuse-of-discretion standard,

the district court’s denial of Wilson’s request under the case-by-case Roviaro framework does

not leave “a definite and firm conviction that the trial court committed a clear error of

judgment.” United States v. Mack, 159 F.3d 208, 217 (6th Cir. 1998); see Moore, 954 F.2d at

381 (the Sixth Amendment “does not . . . require the government to call every witness competent

to testify, including special agents or informers”).

       Alternatively, the government argues that Nunn was not “unavailable” as a witness.

Assuming Nunn was available, Wilson cites no authority for the proposition that, where a

defendant already knows the informant’s identity, the government is required to disclose the

informant’s location. “Ordinarily, a defendant is not entitled to a list of the names and addresses

of the government’s witnesses” and where the informant does not testify, disclosure is made on a

“case-by-case basis” under Roviaro. United States v. Perkins, 994 F.2d 1184, 1190−91 (6th Cir.

1993). Where, as here, Wilson knew the informant’s identity and could have taken steps to

produce the witness but did not, the district court did not abuse its discretion in denying the

motion to produce Nunn.

                                                 C.

       Defendants also object to the government’s use of transcripts at trial. As a preliminary

matter, the parties dispute the standard of review. Typically, we review a district court’s rulings


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Nos. 14-2498/2528, United States v. Wilson, et al.


involving a jury’s use of transcripts for abuse of discretion. United States v. Jacob, 377 F.3d

573, 581 (6th Cir. 2004). Under that standard, “[a] defendant challenging the use of a transcript

at trial must show prejudice.” Id. When a defendant fails to object before the district court, we

review for plain error. United States v. Stover, 474 F.3d 904, 913 (6th Cir. 2007).

       In this case, defendants objected to the use of three transcripts.            Defendants had a

standing objection to Nunn’s statements based on hearsay; the objection did not extend to the

government’s use of transcripts as argued on appeal. We therefore review the use of three

transcripts for abuse of discretion and the remaining transcripts for plain error.

       Our court has identified at least three ways that a district court may permit the use of

disputed transcripts at trial: by stipulation, a court’s pretrial ruling that the transcripts are

accurate, or allowing two transcripts to be presented to the jury “one of which contains the

government’s version and the other the defense’s version.” United States v. Robinson, 707 F.2d

872, 876 (6th Cir. 1983).

       At trial, the government provided written transcripts for the jury to read as it watched and

listened to the recordings. The court instructed the jury several times that the transcripts were

not evidence and were intended to assist the jury in following the recordings.              The court

permitted defendants to introduce competing transcripts and to highlight these differences during

cross-examination. Although presenting competing transcripts to the jury is the “least preferred”

method, Robinson, 707 F.2d at 876, the government argues that defendants “essentially

eliminated the possibility for the district court to use the first two methods described above” by

waiting until the middle of trial to raise objections to the transcripts. Moreover, the government

argues that the disputed portions had little significance in light of all the evidence: defendants




                                                -20-
Nos. 14-2498/2528, United States v. Wilson, et al.


did not introduce many competing transcripts, and Davis disputed only one inaccuracy. This

prompted the government to play the tape again for the jurors to decide for themselves.

       The district court did not abuse its discretion in allowing the jury to view the transcripts.

The court permitted defendants to raise alternative interpretations of the recordings, and the

district court instructed the jury on several occasions that the recordings―not transcripts―were

evidence. Furthermore, defendants have not established that they were prejudiced. See Jacob,

377 F.3d at 582 (any error was harmless where district court repeatedly instructed that the

transcript was not evidence and a substantial portion of the tape was not inaudible); see also

United States v. King, 467 F. App’x 499, 501 (6th Cir. 2012) (no prejudice where the district

court instructed the jury that the transcripts were not evidence and the jury did not have access to

transcripts during deliberations).9

                                                D.

       Finally, Wilson asserts that the district court erred in sentencing him to life

imprisonment. He raises two grounds: first, he lacks three qualifying convictions under the

Armed Career Criminal Act, and, second, his life sentence for conspiring to possess with intent

to distribute controlled substances (Count 4) is unconstitutionally disproportionate under the

Eighth Amendment.

                                                 1.

       Wilson argues that the district court plainly erred in sentencing him as an armed career

criminal because he lacks three qualifying convictions. See 18 U.S.C. § 924(e)(1). But even

assuming the error was plain (which the government forcefully contests), it did not affect

Wilson’s substantial rights because Wilson was subject to a mandatory life sentence for Count 4.

       9
        Wilson’s final argument as to his conviction is that cumulative error warrants reversal.
As any error was harmless, no cumulative error undermined the fairness of his trial.
                                               -21-
Nos. 14-2498/2528, United States v. Wilson, et al.


See 21 U.S.C. § 841(b)(1)(A); Puckett v. United States, 556 U.S. 129, 135 (2009) (to prevail

under plain-error review, defendant has the burden of establishing that the error “affected the

appellant’s substantial rights, which in the ordinary case means he must demonstrate that it

affected the outcome of the district court proceedings.”) (internal quotation marks omitted);

United States v. Burns, 298 F.3d 523, 544−45 (6th Cir. 2002) (“The sentences that [the

defendants] received on Counts 3 and 4 run concurrently with their sentences on Count 2, and do

not add any length to the overall terms of imprisonment. Any Apprendi error that the district

court might have committed . . . is therefore harmless, because it would not affect the

defendants’ substantial rights.”); United States v. Ellis, 326 F.3d 593, 600 (4th Cir. 2003) (error

related to a thirty-year sentence on one count did not affect defendant’s substantial rights because

he received a concurrent life sentence on another count).10

                                                 2.

       Wilson’s final claim of error is that his mandatory life sentence for Count 4 is

unconstitutionally disproportionate.11 We review de novo.12

       In reviewing Eighth Amendment challenges, our court adheres to the “narrow

proportionality principle” described in Justice Kennedy’s concurring opinion in Harmelin v.

       10
          Wilson acknowledges as much but asks us to address the potential error in case he
obtains post-conviction relief or the law changes with respect to statutory minimums. The record
before us establishes that Wilson is subject to a mandatory life sentence. Absent a mandatory
life sentence, our substantial rights analysis might be different.
       11
         Wilson does not dispute that he has “two or more prior convictions for a felony drug
offense” for purposes of 21 U.S.C. § 841(b)(1)(A). The qualifying felonies include: (1) a 1994
Ohio conviction for aggravated drug trafficking, (2) a 2001 Michigan conviction for
delivery/manufacture of a controlled substance, and (3) a 2007 Michigan conviction for
possession of a controlled substance less than 25 grams.
       12
        Although the government argues that we review for plain error, Wilson preserved the
issue by challenging the sentencing enhancement on several grounds, including Eighth
Amendment proportionality.
                                               -22-
Nos. 14-2498/2528, United States v. Wilson, et al.


Michigan, 501 U.S. 957, 996−97 (1991). United States v. Hill, 30 F.3d 48, 50 (6th Cir. 1994);

United States v. Stone, 218 F. App’x 425, 443 (6th Cir. 2007). “Under this approach, the Eighth

Amendment does not demand strict proportionality between crime and sentence but forbids ‘only

extreme sentences that are grossly disproportionate.’” Stone, 218 F. App’x at 443 (quoting

Harmelin, 501 U.S. at 1001).

       We have previously upheld mandatory life sentences for possessing, or conspiring to

possess, with intent to distribute controlled substances. In United States v. Odeneal, 517 F.3d

406, 414 (6th Cir. 2008), we affirmed a mandatory life sentence in light of Harmelin. We

observed that in Harmelin, the defendant was convicted for possessing more than 650 grams of

cocaine and he was sentenced to a mandatory life sentence without the possibility of parole. Id.

Although it was his first felony conviction, his life sentence was not disproportionate because,

under a narrow proportionality principle, “only extreme sentences that are grossly

disproportionate to the crime” are unconstitutional.    Id. (internal quotation marks omitted).

Accordingly, the defendant’s sentence in Odeneal was not unconstitutionally disproportionate

because he was convicted of conspiracy to distribute and to possess with intent to distribute and

was therefore accountable for all drugs seized (including 6 kilograms of marijuana, 1,088.7

grams of cocaine, 378.61 grams of cocaine base, and 48.5 grams of heroin) and he was a co-

organizer or co-leader. Id. Similarly, in United States v. Hill, we upheld the defendant’s life

sentence under the narrow proportionality principle where he was a third-time offender

accountable for conspiracy to distribute 177.8 grams of cocaine base. 30 F.3d 48, 50 (6th Cir.

1994). Although “it may seem rather extreme to impose a life sentence on a defendant who is

convicted with intent to distribute, this Court is bound by the precedent set forth in [Hill].”

United States v. Flowal, 163 F.3d 956, 963 (6th Cir. 1998).


                                              -23-
Nos. 14-2498/2528, United States v. Wilson, et al.


       In this case, Wilson’s conduct (conspiring to possess with intent to distribute 280 grams

or more of crack cocaine and between one-half and five kilograms of powder cocaine) after three

prior drug felonies is worse than Harmelin’s conduct and on par with other defendants whose life

sentences we have upheld.       Wilson’s mandatory life sentence is not unconstitutionally

disproportionate.

                                               III.

       For these reasons, we affirm the judgment of the district court as to both defendants.




                                              -24-
