                NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                           File Name: 17a0655n.06

                                         Case No. 16-6577

                          UNITED STATES COURT OF APPEALS
                               FOR THE SIXTH CIRCUIT

                                                                                     FILED
                                                                               Nov 27, 2017
UNITED STATES OF AMERICA,                            )
                                                                           DEBORAH S. HUNT, Clerk
                                                     )
       Plaintiff-Appellee,                           )
                                                     )       ON APPEAL FROM THE UNITED
v.                                                   )       STATES DISTRICT COURT FOR
                                                     )       THE WESTERN DISTRICT OF
DANIEL SCOTT, SR.,                                   )       TENNESSEE
                                                     )
       Defendant-Appellant.                          )
                                                     )
                                                     )

BEFORE: DAUGHTREY, McKEAGUE, and DONALD, Circuit Judges.

       BERNICE BOUIE DONALD, Circuit Judge. After a jury trial, Defendant-Appellant

Daniel Scott, Sr. (“Scott”) was found guilty of conspiracy to possess cocaine with intent to

distribute and distribution of cocaine in violation of 21 U.S.C. § 846, conspiracy to commit

money laundering in violation of 18 U.S.C. § 1956, and animal fighting conspiracy in violation

of 7 U.S.C. § 2156 in the District Court for the Western District of Tennessee. Scott was

sentenced to 180 months’ imprisonment for the drug charges and 60 months for the animal

fighting charge. Scott appeals, arguing that (1) a variance existed between the proof offered at

trial and the allegations in the indictment, (2) the district court erred in admitting certain expert

testimony, which also violated his confrontation rights, (3) insufficient evidence existed to

sustain the convictions, (4) the Government committed prosecutorial misconduct in its closing
Case No. 16-6577, United States v. Scott


argument, and (5) the district court erred in sentencing Scott for his drug convictions. Because

all of Scott’s claims are without merit, we AFFIRM Scott’s convictions and sentence.

                                                I.

       In March 2014, Sergeant David Williams (“Sgt. Williams”)—a task force officer with the

FBI, employed with the Shelby County Sheriff’s Office—received information from a Texas

district that a drug trafficking organization (“DTO”) was transporting cocaine from Texas to

various communities for sale, including Memphis, Tennessee. The information stated that a

cooperator had identified an individual going by the name “Twin” who was acting as a

distributor in Memphis.       Sgt. Williams identified the individual as Horris Carpenter.

Sgt. Williams then located and photographed Horris Carpenter’s residence at 3545 Lakeview

Road in the Whitehaven area of Memphis.

       Also in March 2014, Joseph Rhoades (“Rhoades”)—a Shelby County Sheriff’s Office

narcotics investigator—conducted an undercover operation centering on Scott’s son, Daniel

Scott, Jr. (“Scott, Jr.”). A confidential informant provided Rhoades with a description of Scott,

Jr. and his vehicle, as well as the location of a controlled purchase of cocaine. On March 13,

2014, at the site, Scott, Jr. was apprehended carrying five kilograms of cocaine. The truck Scott,

Jr. had driven to the sale was registered to Horris Carpenter, the supposed DTO distributor.

       Scott, Jr. waived his Miranda rights and provided law enforcement officers with a

statement. Scott, Jr. also allowed law enforcement to search two cellular phones recovered

during his arrest. Officers identified calls that were missed while Scott, Jr. was detained,

including several from his father and several from “Twin.” Scott, Jr. identified “Twin” as Horris

Carpenter.




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Case No. 16-6577, United States v. Scott


       Scott, Jr. also provided Sgt. Williams with the names of his collaborators, their phone

numbers, and information concerning the source of the organization’s narcotics. From Scott,

Jr.’s interrogation, investigators posited that the local faction of the DTO consisted of the

following members: Juan Carlos Flores, the ringleader and supplier; Horris Carpenter, Flores’

distributor; and Morris Carpenter, a distributor for Horris. To confirm, agents placed Flores

under physical and electronic surveillance. After witnessing Flores drive to Horris Carpenter’s

residence in Memphis—in a truck registered to Cordell Wuthrich (“Wuthrich”)—agents placed a

camera that recorded real-time video near Horris Carpenter’s home.          In monitoring Horris

Carpenter’s house, agents witnessed Flores load a tire into Wuthrich’s truck.

       Months later, the FBI received judicial authorization to monitor Horris Carpenter’s

telephone. On April 1, 2015, agents intercepted a call between Flores and Horris Carpenter. In a

separate call, Scott agreed to deliver “fish” to Horris Carpenter. Similarly, Morris Carpenter

agreed to deliver “dog food.” Sgt. Williams believed that “dog food” was code for money.

       The following day, law enforcement observed Wuthrich and Scott drive to Horris

Carpenter’s residence. When Wuthrich left, Officers pulled him over and seized $210,000 in

cash from the vehicle. Later that day, law enforcement witnessed Scott’s vehicle leaving Horris

Carpenter’s residence around the time of an intercepted call between the two.

       On May 21, 2015, after further surveillance, law enforcement again effected a traffic stop

of Wuthrich and seized 28 kilograms of cocaine from his vehicle. Law enforcement then

arrested Wuthrich as well as the alleged co-conspirators they had identified.

       On June 11, 2015, Flores, Horris Carpenter, Morris Carpenter, Wuthrich, Scott, and

another individual were indicted on charges of conspiracy to possess cocaine with intent to

distribute and of distribution of cocaine, in violation of 21 U.S.C. § 846 (Count 1), and



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Case No. 16-6577, United States v. Scott


conspiracy to commit money laundering, in violation of 18 U.S.C. § 1956 (Count 2). As to each

defendant named here, the indictment charged at least five kilograms of narcotics. On February

17, 2016, a superseding indictment was issued that included a third count for animal fighting

conspiracy in violation of 7 U.S.C. § 2156 (Count 3).

       Also on February 17, 2016, Scott proceeded to trial. Before commencement of trial,

however, Scott pleaded guilty to the Count 3 charge. Scott’s trial featured relevant testimony

from his son—Scott, Jr.— Rhoades, Wuthrich, and Investigator Joe Hoing (“Hoing”). Scott, Jr.

testified that he volunteered to help his father and Horris Carpenter distribute cocaine after they

experienced difficulty “getting rid of it.” Scott, Jr. stated that when he had a potential narcotics

customer, he would call Horris Carpenter, meet him at 3545 Lakeview Road, and obtain the

narcotics. Scott, Jr. testified that on March 13, 2014, he received an order for five to seven

kilograms of cocaine, obtained the drugs from Horris Carpenter at 3545 Lakeview Road on

credit, and was arrested at the controlled purchase. Scott, Jr. also testified that he received three

kilograms directly from his father, who had obtained the cocaine from Horris Carpenter. Scott,

Jr. further stated that after his arrest and cooperation, while out on bond, he met Flores—the

DTO’s supplier. Scott, Jr. stated that he drove to Arkansas with Horris Carpenter to give Flores

a spare tire filled with money. Scott, Jr. also attested that he heard Flores tell Horris Carpenter

that a load of cocaine was going to arrive in Memphis.

       Over Scott’s objections, Detective Rhoades testified about Scott, Jr.’s arrest. On cross-

examination, Rhoades was asked if he was “aware that [Scott, Jr.] had gotten [the narcotics] from

somewhere?” (RE 293, Page ID #1020.) Rhoades responded that his confidential informant told

him that Scott, Jr.’s father was “involved.” (Id.) The Government then requested permission to




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Case No. 16-6577, United States v. Scott


question Rhoades about this information. After the court granted the request, Rhoades described

the confidential informant’s details regarding Scott’s involvement with the DTO.

        Wuthrich’s testimony explained that he was a courier for the DTO, delivering cocaine

and proceeds from the sale of the product. Wuthrich stated that he received $1,000 for each

package he delivered and that the cocaine or funds were hidden in compartments inside a vehicle

or a spare tire.

        Wuthrich testified that he saw Scott only once, on April 2, 2015, when Flores instructed

Wuthrich to drive to Horris Carpenter’s residence. Once there, Scott arrived with a shoebox

containing cash. Wuthrich said that Horris Carpenter put the shoebox money into a tire that

Wuthrich provided.     Wuthrich then left and was stopped by law enforcement who seized

$210,000 from the tire.     Wuthrich’s testimony regarding the April 2, 2015 meeting was

corroborated by pole-camera video recordings of the vehicles arriving at Horris Carpenter’s

residence, as well as monitored phone calls between DTO members. Wuthrich stated that he

returned to Memphis a short time later to pick up the rest of the money and, in May 2015,

traveled to Houston, Texas, to obtain a shipment of cocaine. On May 21, 2015, Wuthrich

testified that he was again pulled over.      This time, law enforcement officers recovered

28 kilograms of cocaine from a hidden compartment.

        The Government also called Investigator Hoing at trial to provide specialized testimony

regarding the modus operandi of DTOs. The Government argued that such testimony was based

on Hoing’s 40-year law enforcement career and thousands of narcotic investigations. In the

course of his testimony, Hoing explained that drug dealers employ couriers as a safety net, use

multiple phones, and utilize code words. Hoing further explained that he interprets coded

communications based on intercepted intelligence, defendant and confidential informant



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Case No. 16-6577, United States v. Scott


interviews, and institutional knowledge. After listening to a recorded phone call between Scott

and Horris Carpenter, Hoing stated that he believed “fish” was a code word used for money.

       After Hoing’s testimony, the Government rested. The defense did not present evidence,

and the jury heard closing arguments. During its close, the Government stated, in relevant part,

that “when the defense tells you that the officers that were involved did not give a hundred

percent, it is not even required that we seize drugs and money for a conspiracy. But not only did

they identify a number of individuals that were involved in selling this poison into our

community, but they seized thirty—” (RE 433, PageID #3101-02.) Scott’s counsel objected,

stating that “poison in the community, I think—I think the courts have frowned on that kind of

language.” (Id. at PageID #3102.) The trial court overruled and the Government concluded its

closing argument without reiterating the objected-to language and without further protest. Id.

       The jury found Scott guilty on both Counts 1 and 2. Scott moved for a new trial, arguing

that (1) the Government failed to connect Scott to the alleged conspiracy, (2) the Government

committed prosecutorial misconduct during its closing argument, and (3) Hoing’s testimony

violated Scott’s constitutional rights. The district court denied Scott’s motion. Over objection,

the district court varied downward from the guidelines and sentenced Scott to 180 months as to

Counts 1 and 2 and 60 months as to Count 3.

                                                II.

       On appeal, Scott argues that: (1) a variance existed between the proof offered at trial and

the allegations in the indictment; (2) allowing Hoing to testify as an expert witness in reliance on

statements made by co-defendants unavailable for cross-examination violated the Confrontation

Clause and his testimony was otherwise unreliable; (3) there was insufficient evidence to

establish the elements as required under the indictment; (4) the Government committed



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Case No. 16-6577, United States v. Scott


prosecutorial misconduct in its closing argument such that Scott was deprived of his right to a

fair trial; and (5) the district court erred in sentencing Scott to 180 months based on findings

unsupported by competent evidence in the record. We address each of Scott’s arguments in turn,

finding each without merit.

                                                A.

       Scott first argues that a variance existed between the proof offered at trial and the

allegations in the indictment because the indictment alleged only a single conspiracy and the

evidence at trial demonstrated, at best, multiple conspiracies to distribute narcotics. Scott does

not challenge his convictions for conspiracy to commit money laundering or animal fighting.

We review the question of whether a variance has occurred de novo. United States v. Swafford,

512 F.3d 833, 841 (6th Cir. 2008).

       A variance occurs when the charging terms of the indictment are unchanged, but the

evidence at trial proves facts materially different from those originally alleged. United States v.

Solorio, 337 F.3d 580, 589 (6th Cir. 2003).          In a conspiracy case, a variance constitutes

reversible error only if a defendant demonstrates that he was prejudiced by the variance and that

the indictment alleged one conspiracy but the evidence can reasonably be construed only as

supporting a finding of multiple conspiracies. See Kotteakos v. United States, 328 U.S. 750

(1946); United States v. Warner, 690 F.2d 545, 548 (6th Cir. 1982). In determining the existence

of a variance, we must view the evidence in a light most favorable to the Government. United

States v. Caver, 470 F.3d 220, 236 (6th Cir. 2006).

       “To prove a single conspiracy, the government need only show that each alleged

conspirator had knowledge of and agreed to participate in what he knew to be a collective

venture directed toward a common goal.” United States v. Smith, 320 F.3d 647, 653 (6th Cir.



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Case No. 16-6577, United States v. Scott


2003), vacated and remanded on other grounds, 510 U.S. 1180 (2005).              “Conspiracies to

distribute narcotics, which normally involve numerous sales and resales of drugs until they reach

the ultimate consumers, are often ‘chain’ conspiracies.” Warner, 690 F.2d at 549. “Because the

success of participants on each level of distribution is dependent upon the existence of other

levels of distribution, each member of the conspiracy must realize that he is participating in a

joint enterprise, even if he does not know the identities of many of the participants.” Id. Indeed,

while a defendant’s involvement in one conspiracy does not necessarily warrant imputing

criminal culpability for another charged conspiracy, in chain conspiracies, the existence of a

single enterprise “is proved by the fact that operators at different levels are connected by a

common scheme or enterprise.” Swafford, 512 F.3d at 842 n.3.

       Scott argues that the Government attempted to use two pieces of evidence to connect

Scott to two separate conspiracies: (1) Scott Jr.’s statement that he was involved with the DTO

because “they needed help”; and (2) the allegation that the conversation between Horris

Carpenter and Scott regarding “fish” implicated involvement with Cordell Wuthrich and the

DTO. First, there is no question of Scott’s involvement with his son or that they jointly

conspired with Horris Carpenter. While “they” is a vague statement in a vacuum, Scott, Jr.

explicitly testified that both Scott and Horris Carpenter provided him with cocaine for sale, and

that Horris Carpenter provided his father with the cocaine distributed to Scott, Jr. And all

context surrounding that statement shows that Scott, Jr. was referring to his father and Horris

Carpenter. Second, Scott’s involvement with Wuthrich is equally clear. The conversation

regarding “fish” was immediately followed by pole-camera recordings showing Scott arriving at

Horris Carpenters house, and Wuthrich testified that Scott brought a large sum of cash with him.




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       Scott points to Agent Ross’ testimony during sentencing that he had “no evidence to

suggest that” Scott knew about the May 21, 2015, Wuthrich transaction at all or that Wuthrich

was transporting it to Memphis as proof of a separate conspiracy.            The lack of evidence

connecting Scott to the narcotics seized from Wuthrich on one occasion, however, does not

negate the other evidence regarding the DTO and the conspiracy. As stated, the evidence educed

at trial is sufficient to show that they were operating a single venture. This particular transaction

can be tied to that venture via Wuthrich and Scott, Jr.’s testimony, and it is not necessary to

establish that Scott was aware of the particular transport or sale.

       Scott also takes issue with the testimony regarding the May 21, 2016, seizure of cocaine,

arguing that it was clear that the narcotics were unrelated to Scott. Instead, Scott argues that the

only connections—that Wuthrich met with Scott on April 2, 2015, that Horris Carpenter and

Wuthrich knew each other, and that Scott knew Carpenter—are nothing more than the mere

associations that are insufficient to prove conspiracy. See United States v. Gibbs, 182 F.3d 408,

422 (6th Cir. 1999). Again, the Government need not prove that Scott was present, partook in, or

was even aware of each conspiratorial act for which there is evidence. Even if direct contact

between certain members of the DTO were sporadic, infrequent, singular, or even nonexistent, a

reasonable jury could find that they were part of a single “chain” conspiracy. See Warner,

690 F.2d at 549 (“[A] single conspiracy does not become multiple conspiracies simply because

each member of the conspiracy did not know every other member, or because each member did

not know of or become involved in all of the activities in furtherance of the conspiracy.”).

       Thus, the evidence showed that Scott knew about and agreed to participate in a collective

venture to sell narcotics in Western Tennessee and elsewhere. The same evidence supporting a

finding of Scott’s participation in a conspiracy with this son and Carpenter shows that there was



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Case No. 16-6577, United States v. Scott


a single conspiracy. Testimony and pole-camera video shows that Horris Carpenter was a

principal seller who conducted DTO business from his house, where Scott delivered monies

derived from cocaine sales. And Scott was aware of the transfer of money and drugs, and he was

involved other parties—including his son. See United States v. Wilson, 168 F.3d 916, 924 (6th

Cir. 1999) (“The mere fact that a conspiracy can be subdivided . . . does not mean that multiple

conspiracies existed.”). Even though he was not present during the seizures, testimony from

Scott, Jr. and Wuthrich shows that he provided money that was seized on April 2, 2015. Along

with the intercepted calls and pole-camera footage, this is enough to connect those events to a

single conspiracy.

       In sum, the evidence introduced would not compel a reasonable trier of fact to find

multiple conspiracies. Scott, Jr. testified that Flores was the sole supplier of cocaine to Scott and

Horris Carpenter. Wuthrich testified that Horris Carpenter arranged for him to deliver narcotics,

just as Scott, Jr. testified that his father arranged for him to obtain and sell narcotics from Horris

Carpenter. Scott Jr. also stated that he received narcotics from his father personally. Agents

seized $210,000 and 28 kilograms of drugs from Wuthrich while he was acting in a manner

consistent with the way the DTO was described and after pole-camera video and informant

statements substantiated the presence of the co-conspirators. With all inferences being drawn in

favor of the Government, Scott has not established a variance between the indictment and

evidence at trial.   We cannot say that the evidence can reasonably be construed only as

supporting a finding of multiple conspiracies. See Warner, 690 F.2d at 548.

                                                 B.

       Scott also argues that the district court erred in allowing Hoing’s testimony. On direct

examination, Hoing testified about DTOs, as well as his opinion that dealers often used code



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Case No. 16-6577, United States v. Scott


words to disguise their transactions. Scott argues that Hoing’s testimony lacked any showing of

reliable methodology and was a clear attempt by the Government to circumvent the

Confrontation Clause by introducing a coconspirator’s statements as to the meaning of critical,

but vague terms central to the case.

         We review a district court’s evidentiary rulings for abuse of discretion. United States v.

Kilpatrick, 798 F.3d 365, 378 (6th Cir. 2015). A court abuses its discretion when it “relies on

clearly erroneous findings of fact, improperly applies the law, or employs an erroneous legal

standard,” or where we are “firmly convinced” that the trial court “committed a clear error of

judgment.”      United States v. Miner, 774 F.3d 336, 348 (6th Cir. 2014) (internal citations

omitted).1

        The district court did not abuse its discretion in admitting Hoing’s testimony. Hoing’s

answers assisted the jury in understanding the defendant’s coded conversations and the jury was

instructed so it could give proper weight to his testimony. Indeed, Hoing explained that he came

to learn of specific code words defendants used to reference drugs and drug-related activity. See

United States v. Dugalic, 489 F. App’x 10, 16 (6th Cir. 2012) (“This court has repeatedly

recognized that, in drug cases, officers can testify as to the meaning of code words.”) (citations

omitted). Where an agent establishes his basis for concluding that a specific word is coded drug

language, through personal knowledge, such testimony is permissible under Rule 701. See

United States v. Lopez-Medina, 461 F.3d 724, 742-43 (6th Cir. 2006) (in prosecution for

conspiracy to distribute cocaine, finding admission of expert testimony from law enforcement

warranted as it was relevant and reliable based on agents’ extensive experience). Here, Hoing—

a qualified law enforcement agent with 40 years of experience and extensive drug-investigation

1
  We note that Scott failed to lodge his Confrontation Clause arguments below, thus limiting our review the under
the plain-error standard. United States v. Olano, 507 U.S. 725, 731-32 (1993). Because his claim fails under abuse
of discretion, though, we review both claims under the same standard.

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Case No. 16-6577, United States v. Scott


training—provided information which would assist the trier of fact in understanding drug

operations. The district court gave a cautionary instruction regarding expert testimony and

advising the jury that it did not have to accept Hoing’s opinion. This was not an abuse of

discretion.

       As to Scott’s Confrontation Clause argument, Rule 703 allows an expert witness to testify

to an opinion that is supported by inadmissible hearsay evidence. Fed. R. Evid. 703. An expert

testimony is only barred under Crawford v. Washington, 541 U.S. 36 (2004), when the witness is

used as a mere conduit for testimonial hearsay, rather than a true expert whose opinion elucidates

a specialized factual situation. Hoing’s testimony was not provided simply to parrot “out-of-

court statements of cooperating witnesses and confidential informants directly to the jury in the

guise of expert opinion.” United States v. Lombardozzi, 491 F.3d 61, 72 (2d Cir. 2007). Instead,

Hoing provided an independent judgment about the statements made to shed light on what the

jury may have witnessed on the pole-camera video the day after the intercepted telephone calls.

Thus, the district court did not abuse its discretion or otherwise err in allowing Hoing’s

testimony.

                                               C.

       Scott next lodges a challenge to the sufficiency of the evidence for his conviction, which

we review de novo.      United States v. Torres-Ramos, 536 F.3d 542, 556 (6th Cir. 2008).

All inferences must again be made in favor of the Government, and the evidence is sufficient if

“any rational trier of fact could have found the elements of the offense beyond a reasonable

doubt.” Id. In making this determination, circumstantial evidence is entitled to the same weight

as direct evidence. United States v. Frost, 914 F.2d 756, 762 (6th Cir. 1990) (citing Holland v.

United States, 348 U.S. 121, 140 (1954)).        Further, “the uncorroborated testimony of an



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accomplice may support a conviction under federal law.” Id. (quoting United States v. Gallo,

763 F.2d 1504, 1518 (6th Cir. 1985), cert. denied, 474 U.S. 1068 (1986)). However, we will not

remake credibility determinations. “It is for [jurors] and not for appellate courts, to say that a

particular witness spoke the truth or fabricated a cock-and-bull story.” Gallo, 763 F.2d at 1518

(quoting United States v. Bailey, 444 U.S. 394, 414-15 (1980)).

       Scott challenges the evidence on the grounds that it “largely consisted of unreliable and

unsubstantiated expert witness testimony derived from inadmissible statements made by a co-

defendant in violation of the Confrontation Clause, and admission of cocaine unable to be

connected to [Scott] in any manner.” (Appellant’s Br. at 37.) As we have already concluded, the

district court did not err in allowing Hoing to testify as an expert witness or about the content of

the intercepted calls between Scott and other members of the DTO. Thus, the evidence was

sufficient based on that testimony.

       As to the sufficiency of the remaining evidence, the Government need not prove

conspiracy by direct evidence. “Drug distribution conspiracies are often ‘chain’ conspiracies

such that agreement can be inferred from the interdependence of the enterprise.” United States v.

Bourjaily, 781 F.2d 539, 544 (6th Cir. 1986). In such conspiracies, “[o]ne can assume that

participants understand that they are participating in a joint enterprise because success is

dependent on the success of those from whom they buy and to whom they sell.” Id.

       As already discussed, there is sparse evidence tying Scott directly to Wuthrich or the

funds and cocaine seized. But, in this “chain” conspiracy, the jury could reasonably have

inferred that Scott knew that other defendants were participating in the interdependent enterprise,

as it could be presumed that Flores was using multiple couriers and sellers. Indeed, Scott’s own

son was recruited after Scott and Horris Carpenter were having difficulties selling the narcotics,



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as was Horris Carpenter’s brother. In addition, the Government introduced evidence that Scott

Jr. was receiving calls from both Scott and Horris Carpenter surrounding the controlled purchase

of narcotics and intercepted calls between and among many of the co-defendants. And the

evidence showed that Scott was a visitor to Horris Carpenter’s house, which also served as a

transfer point for drugs and cash. Given that “it is not necessary to show that a defendant knew

every member of the conspiracy or knew the full extent of the enterprise,” United States v. Lloyd,

10 F.3d 1197, 1210 (6th Cir. 1993), the evidence of Scott’s involvement in the conspiracy was

legally sufficient.

        Scott cites repeatedly to Gibbs in arguing there was insufficient evidence exists to show

that Scott agreed to participate in the conspiracy. 182 F.3d 408. In Gibbs, the Government

charged an amorphous group of drug dealers with conspiracy, alleging that they had conspired to

control the distribution of cocaine in a local area by excluding non-local drug dealers. Id. This

Court vacated the convictions of several of the defendants because, even though the Government

proved that they had sold drugs in the area during the relevant time period, there was no proof

that they agreed to participate in the charged conspiracy. Id. at 423. However, Scott fails to

identify any aspect of the basic conspiracy charged in this case for which the jury had no basis to

infer his involvement based on the evidence detailed throughout this opinion. Scott’s citation to

United States v. Pearce, 912 F.2d 159, 162 (6th Cir. 1990), is equally unavailing because Pearce

is distinguishable. Thus, we agree with the Government that there was sufficient evidence for

the jury to conclude that Scott was part of the single, overarching conspiracy charged in the

indictment. So long as the “jury’s choice was a rational one,” we must affirm. United States v.

Arnold, 486 F.3d 177, 182 (6th Cir. 2007) (en banc). And so we do.2


2
 Again, Scott does not challenge his convictions for conspiracy to commit money laundering or animal fighting and
we do not analyze the sufficiency of the evidence as to those Counts.

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Case No. 16-6577, United States v. Scott


                                                D.

       Scott argues that statements made during the prosecutor’s closing argument constituted

misconduct that warrants reversal. Scott primarily contends that the prosecutor’s statement

regarding preventing “poison” from entering the community was an attempt to appeal to the

jurors’ passion or emotions such that it constitutes prejudicial misconduct. Scott also argues that

the comment was exacerbated by the fact that the narcotics were in plain view during closing.

We review the question of whether prosecutorial misconduct requires reversal de novo. United

States v. Tarwater, 308 F.3d 494, 511 (6th Cir. 2002).

       “When reviewing claims of prosecutorial misconduct, we determine first whether the

statements were improper. If they appear improper, we then look to see if they were flagrant and

warrant reversal.” United States v. Tocco, 200 F.3d 401, 420 (6th Cir. 2000) (citations omitted).

“To determine flagrancy, the standard set by this Court is: 1) whether the statements tended to

mislead the jury or prejudice the defendant; 2) whether the statements were isolated or among a

series of improper statements; 3) whether the statements were deliberately or accidentally before

the jury; and 4) the total strength of the evidence against the accused.” Id. If the prosecutor’s

remarks are not flagrant, then this Court will reverse only “if proof of [the defendant’s] guilt was

not overwhelming, [the defendant] objected to the improper remarks, and the court failed to cure

the error with an admonishment to the jury.” United States v. Carroll, 26 F.3d 1380, 1390 (6th

Cir. 1994) (citing United States v. Bess, 593 F.2d 749, 757 (6th Cir. 1979)).

       First, we are not persuaded that the objected-to statement misled the jury or prejudiced

the defendant. And several of our sister circuits have found that referring to narcotics as poison

is within the proper bounds of closing argument. United States v. McGill, 815 F.3d 846, 921

(D.C. Cir. 2016) (affirming district court’s denial of defendant’s motion for a new trial in which



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Case No. 16-6577, United States v. Scott


prosecutor referred to the “kilos and kilos of poison” defendant released onto the streets); United

States v. Jones, 468 F.3d 704, 708 (10th Cir. 2006) (allowing government’s references in closing

arguments to drugs as poison and defendant as a shark not plain error); United States v. Durham,

211 F.3d 437, 440 (7th Cir. 2000) (declining to vacate conviction due to closing argument in

which prosecutor referred to defendant as “slick little dope dealer” who “uses kids and exploits

them to peddle poison”). Second, the statement was isolated, singular, and not repeated in any

form after Scott’s objection. Third, it is not clear that the statement was deliberate, or even

inaccurate, as it arose while the prosecutor was attempting to defend the efforts of the

investigators, rather than condemn the acts of the DTO. The judge instructed the jury that closing

argument is not evidence. Finally, the evidence against Scott was strong and the fact that there

was ample evidence for the jury to convict Scott, even leaving aside the disputed statement,

suggests that the prosecutor's remarks did not constitute plain error.

       Scott also contends that the Government implicitly vouched for the credibility of the

officers. This too is incorrect. Part of Scott’s defense strategy was to attack the diligence of the

law enforcement officers and agents involved in the investigation. In response, the Government

attempted to contravene that assertion by pointing to the fruits of their labor as evidence of their

efforts—chiefly, the interdiction of various drug transfers and the seizure of those narcotics.

This does not constitute misconduct.

       Finally, Scott’s reliance on United States v. Solivan, 937 F.2d 1146 (6th Cir. 1991), is

also misplaced. There, the prosecutor specifically asked that the jury send a message and “tell

[the defendant] and all of the other drug dealers like her [] that we don’t want that stuff in

Northern Kentucky and that anybody who brings that stuff in Northern Kentucky . . .” Id. at

1148. Here, the prosecutor did not ask that the jury to send a message and was not appealing to



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the jury at all. Instead, the prosecutor was describing the acts of law enforcement that had

already taken place. While he described the drugs as poison, he was accurately describing

facts—seizures that occurred—and did not appeal to the jury inappropriately. Because the

Government’s closing argument only summarized evidence presented at trial and was not

calculated to inflame the jury, we will not reverse Scott’s conviction based on the statements.

                                                 E.

       Lastly, Scott claims that the district court erred in calculating the quantity of cocaine that

should be attributed to him pursuant to the “Relevant Conduct” provision of U.S.S.G. § 1B1.3.

The court found that 16 kilograms of cocaine could be attributed to Scott. Evidence introduced

directly connected Scott with quantities of at least three kilograms and substantial sums of cash.

Scott’s PSR stated he would be held accountable for 16 kilograms. The report detailed the

Government’s evidence against Scott at trial, including the statements from Wuthrich and Scott,

Jr., the intercepted calls, and the pole-camera footage. The district court specifically overruled

Scott’s objections to the quantities of contraband attributed to him in the PSR. We accept the

findings of the district court in this respect unless they are clearly erroneous and give deference

to the district court’s application of the guideline to the facts. United States v. Walton, 908 F.2d

1289, 1300-01 (6th Cir. 1990), cert. denied, 498 U.S. 906 (1990). The calculation of the proper

drug amount attributable to Scott is a factual finding that we review for clear error. See id.

       Scott argues that the only amount of drugs attributable to Scott should have been “no

more than 2 kilograms but less than 3.5 kilograms.” Setting aside the confusing structure of that

sentence, and presuming that Scott argues for a sentence commensurate with between 2 and

3.5 kilograms of cocaine, this argument is without merit.




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Case No. 16-6577, United States v. Scott


       For a defendant to be held accountable for the actions of co-conspirators, “(1) the conduct

must be in furtherance of the jointly undertaken criminal activity; and (2) the conduct must be

reasonably foreseeable in connection with that criminal activity. United States v. Campbell,

279 F.3d 392, 399 (6th Cir. 2002). As the PSR detailed, there was ample evidence that 16

kilograms of cocaine was a reasonably foreseeable amount of narcotics for the members of the

DTO. For example, Scott, Jr. and Wuthrich testified regarding Scott’s role in the conspiracy.

This alone could warrant the attribution. See United States v. Swanberg, 370 F.3d 622, 625 (6th

Cir. 2004) (“[T]estimonial evidence from a coconspirator may be sufficient to determine the

amount of drugs for which another coconspirator should be held accountable”) (quotation marks

omitted)). Moreover, Scott was intercepted on wiretaps, provided his son with at least three

kilograms of cocaine, and joined a conspiracy whose purpose was to distribute cocaine—and

from which at least 33 kilograms were seized, along with $210,000 in proceeds, which,

according to Wuthrich, was personally brought to the scene by Scott. Accordingly, there was

sufficient evidence adduced for the court to conclude that Scott was responsible for at least

16 kilograms of cocaine. Indeed, by varying downward from the guidelines and otherwise

sentencing Scott on the basis of 16 kilograms—and not more—the district court appropriately

exercised caution to ensure that Scott was “more likely than not actually responsible” for a

quantity greater than or equal to the amount used in calculating the sentence. See United States

v. Mahaffey, 53 F.3d 128, 132 (6th Cir. 1995) (emphasis in original).

                                               III.

       For the foregoing reasons, we AFFIRM Scott’s conviction and sentence.




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