                NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                           File Name: 13a0380n.06

                                            No. 12-1181                                   FILED
                                                                                       Apr 16, 2013
                           UNITED STATES COURT OF APPEALS                       DEBORAH S. HUNT, Clerk
                                FOR THE SIXTH CIRCUIT

UNITED STATES OF AMERICA,                      )
                                               )
               Plaintiff-Appellee,             )
                                               )         ON APPEAL FROM THE
v.                                             )         UNITED STATES DISTRICT
                                               )         COURT FOR THE EASTERN
DAVID ERIKE MACLLOYD,                          )         DISTRICT OF MICHIGAN
                                               )
               Defendant-Appellant.            )



BEFORE: MARTIN, SUHRHEINRICH, and COLE, Circuit Judges.

       SUHRHEINRICH, Circuit Judge. A jury convicted Defendant David MacLloyd of

conspiring to distribute and to possess with intent to distribute more than five kilograms of cocaine,

aiding and abetting another in possessing with intent to distribute cocaine, using a communications

facility to commit the cocaine conspiracy, and maintaining a “drug-involved premises.” On appeal,

Defendant raises various challenges to his conviction and sentence. For the reasons that follow, we

AFFIRM.

                                          I. Background

       Brothers David and Clifford MacLloyd (“Defendant” and “Clifford”) were wholesale dealers

of cocaine in the Detroit area in 2007-2008. Defendant handled the finances and Clifford handled

the distribution.   They bought multiple kilograms of cocaine weekly from Nick Sanabria

(“Sanabria”), who purchased the drugs from a connection in Arizona, Claudio Serrano (“Serrano”).


                                                   -1-
Sanabria hired Jose Santiago (“Santiago”) to transport the drugs and money between Arizona and

Michigan. Santiago in turn hired his cousin, Richard Ochoa (“Ochoa”), to drive between Arizona

and Michigan. In mid-2007, Santiago got out of the business, and introduced Ochoa to Serrano.

Ochoa and Serrano began working together directly, and Ochoa delivered the cocaine to Defendant

in Detroit. Ochoa hired other drivers too, including Robert Green, in the summer of 2007. He gave

Green money for suitable clothes and provided him with a Mercedes SUV and then a Hummer with

custom-built hidden compartments or “traps” for transporting drugs and money. The Mercedes

could hold up to twenty kilograms per trip; the Hummer could carry up to forty kilograms at a time.

Ochoa and Green made seven to ten trips together; each averaging forty kilos. Green made more

than ten trips after that, again averaging forty kilos of cocaine per trip.

        In February 2008, Defendant eliminated Ochoa from the organization and asked Green to

work for him directly. Defendant and Green flew to Arizona to meet Serrano. Defendant had his

girlfriend, Jamie Henderson (now “Lasco”)1, prepare a letter to Serrano, in Spanish.2 The letter

stated that Defendant and his brother wanted to deal directly with Serrano, and was signed by

Defendant. Green took Defendant to the home of Serrano’s nephew, Marcos, where Ochoa had

previously met Serrano, and where the drugs were packaged. Defendant left the letter for Serrano

with Marcos. After receiving the letter, Serrano called Defendant and they met at a restaurant.

Defendant told Serrano he was Ochoa’s Detroit customer, and they discussed dealing directly with

each other. Defendant said that he wanted forty to fifty kilograms of cocaine, and he was preparing




        1
            Henderson was using her married name, Lasco, at the time of trial.
        2
            Lasco used her computer. A computer program translated the letter into Spanish.

                                                  -2-
a truck with a hidden compartment that would hold 100 kilograms at a time. Defendant introduced

Green as the “chauffeur” who would drive the drugs and money.

       Defendant and Serrano met again, this time at Marcos’s house, where Serrano’s nephews

were packaging cocaine. Serrano had a signature style of packaging the cocaine – “some like greasy

stuff mixed with Tide soap, and then we would wrap it with plastic and then we would put tape.”

(R. 198 ID# 1557) Defendant paid Serrano an extra $1,000 a load to have Serrano’s people help

with the wrapping. They discussed future business together. Serrano decided that they needed a

different “stash” house. Serrano located a house, 9524 East Baywood, Mesa, Arizona, and

Defendant gave Serrano the deposit and rent money.

       Between February 2008, when Serrano began dealing directly with Defendant, and the end

of the conspiracy, Defendant made repeated purchases from Serrano, of more than twenty kilograms.

       After Defendant and Green returned to Michigan, Defendant wire-transferred $48,000 to

Green, who used it to buy a Ford F-250 diesel pickup truck and have it modified to add an external

diesel tank and hidden compartment. On his next trip, Green carried forty kilograms of cocaine to

Detroit in the new truck.

       Lasco, Defendant’s girlfriend, helped Defendant count money that Defendant said came from

drug trafficking. Lasco also made Defendant’s travel arrangements for his trips to Arizona, which

were “[f]or the purpose of arranging drug deals.” (R. 199 ID# 1742)

       The Drug Enforcement Agency (“DEA”) began investigating the brothers in 2008. On March

14, 2008, agents intercepted calls between Clifford and Jujan Burns, in which Clifford agreed to sell

Burns two kilograms of cocaine for $22,500 per kilogram. The agents witnessed the meeting

between Clifford and Burns. They saw Burns take something from Clifford’s truck and transfer it


                                                 -3-
to his own car. The officers stopped Burns shortly thereafter and found two kilograms of cocaine

in his trunk. The kilos were wrapped in axle grease and duct tape. Several hours later Clifford was

arrested as he delivered another two kilograms to Burns.

       Still later that same day, the officers executed a search warrant on Clifford’s home at 1474

Robert Bradbury, Detroit. They seized eleven more kilograms of cocaine coated with red axle grease

and wrapped in duct tape; an assault-type rifle; a handgun; ammunition for both guns; a digital scale;

baggies; an electronic money counter; and 390 tablets of ecstasy.

       On April 29, 2008, Green delivered twenty-four kilograms of cocaine to a house in Grosse

Pointe, at Defendant’s direction. Clifford met him there to unload the drugs. Green spent the night

at a Holiday Inn Express in Warren, Michigan. Defendant paid for the room and listed his own

Cadillac on the registration.

       The next day, April 30, 2008, Green lunched with Defendant and then left town for a

vacation in Las Vegas. Agents arrested him just outside of Detroit. Green had $30,000 in the F-

250's hidden compartment, left over from the last Arizona trip, and $2,000 in cash in the glove

compartment, which Defendant had given him for his vacation trip.

       Green agreed to cooperate in the investigation. After returning from his vacation, Green

went to Lasco’s apartment, where Defendant often stayed. Defendant gave him $220,000 to buy

more cocaine. Green drove to Arizona with DEA Agent Donald Grace. Green met Serrano’s

relatives at 9524 East Baywood. Green wore a recording device and his phone calls were being

monitored. Agents heard Green call Defendant from inside the house to report that the quality of the

cocaine was good. Officers arrested Serrano before he arrived.




                                                 -4-
       That same day, agents executed search warrants at six places, including 9524 East Baywood

and two other residences in Mesa; 2965 Parkway Circle, Sterling Heights, Michigan, which

Defendant had rented for Lasco; 34427 Sea Oats, Sterling Heights, which Defendant had rented for

himself; and a storage unit. They found twenty-seven kilograms of cocaine in the house on

Baywood. Agents seized a baggie of cocaine and $209,000 at Defendant’s apartment on Sea Oats.

At Lasco’s apartment, which Defendant also rented, they seized a $200,000 Bentley, and records

of Defendant’s trip to Arizona.

       Defendant and Clifford were charged in a superseding indictment with conspiring to

distribute and to possess with intent to distribute more than five kilograms of cocaine, in violation

of 21 U.S.C. §§ 841(a)(1) and 846 (Count 1), and with aiding and abetting each other in possessing

with intent to distribute more than five kilograms of cocaine, in violation of 21 U.S.C. § 841(a)(1),

and 18 U.S.C. § 2 (Count 2). Defendant was further charged with eleven counts of using a

communications facility to commit or facilitate the cocaine conspiracy, in violation of 21 U.S.C. §

843(b) (Counts 3-5 and 18-25); and with maintaining a drug-involved premises at eight different

locations, in violation of 21 U.S.C. § 856(a)(1) (Count 26). The jury was instructed as to four of the

eight premises. Clifford pleaded guilty. Several coconspirators (but not Clifford) testified at

Defendant’s trial.

       A jury convicted Defendant on all counts on August 26, 2010. The jury also found that

Counts 1 and 2 involved more than five kilograms of cocaine.

       Defendant did not move for a judgment of acquittal during trial or within fourteen days of

the verdict. His trial counsel was allowed to withdraw in December 2010. New counsel filed an

appearance on January 13, 2011. On October 20, 2011, counsel sought permission to file untimely


                                                 -5-
motions under Rules 29 and 33, untimely objections to the presentence report, and to adjourn the

sentencing hearing. The district court granted the motion over the government’s objection.3

       On February 6, 2012, the district court denied Defendant’s motions for judgment of acquittal

and for a new trial, and then sentenced Defendant to concurrent terms of 360 months’ imprisonment

on Counts 1 and 2; 48 months each on the telephone counts, and 240 months for maintaining a drug

premises, all to run concurrent with each other and the term imposed on Counts 1 and 2.

       Defendant appeals. First, he claims there was insufficient evidence to support his convictions

on Counts 1, 2, and 26. Second, he claims the district court erred in failing to grant him a new trial

because (1) the Government failed to disclose that it gave a significant benefit given to cooperating

codefendant Ochoa, (2) the Government failed to disclose that Santiago was a confidential informant

during the conspiracy, (3) the court failed to properly instruct the jury regarding the lay and expert

testimony of DEA Special Agent Donald Grace, (4) the court allowed testifying codefendant Serrano

to refuse to answer defense questions in cross-examination, and (5) the cumulative effect of these

errors warranted one. Lastly, Defendant argues that his sentence was procedurally unreasonable

because the district court imposed a four-level enhancement for being a leader or organizer, and

substantively unreasonable because the court failed to account for the unwarranted disparity between

his sentence and that of codefendants Clifford and Green.




       3
        The district court granted the motion without a finding of “excusable neglect” as
required by Fed. R. Crim. P. 45(b)(1)(B). The government does not challenge this failing on
appeal, however.

                                                 -6-
                                            II. Analysis

                                    A. Sufficiency of Evidence

       This court reviews the district court’s denial of motion for judgment of acquittal under

Federal Rule of Criminal Procedure 29(c) de novo. United States v. Howard, 621 F.3d 433, 459 (6th

Cir. 2010). We must determine “whether, after viewing the evidence in the light most favorable to

the prosecution, any rational trier of fact could have found the essential elements of the crime beyond

a reasonable doubt.” Jackson v. Virginia, 443 U.S. 307, 319 (1979). We do not reweigh the

evidence. Howard, 621 F.3d at 460.

                                             1. Count 1

       Defendant acknowledges the evidence shows that he purchased cocaine from Ochoa, Green,

and Serrano, with cash, but that these were nothing more than buyer-seller relationships. Similarly,

Defendant contends that Clifford merely purchased drugs from Defendant for his own distribution

business. Defendant therefore argues that evidence was insufficient to convict him of conspiracy

to distribute and possession with intent to distribute more than five kilograms because the evidence

establishes only buyer-seller transactions and not a conspiracy.

       To establish a conspiracy under § 846, the government was required to prove “an agreement

between two or more individuals, with intent to commit an offense under the Controlled Substance

Act.” United States v. Crayton, 357 F.3d 560, 573 (6th Cir. 2004) (internal quotation marks and

citation omitted). The essence of conspiracy is agreement. Id. “A conspiracy may be inferred from

circumstantial evidence that can reasonably be interpreted as participation in a common plan.” Id.

(internal quotation marks and citations omitted).




                                                 -7-
       This court has held that “a buyer-seller relationship is not alone sufficient to tie a buyer to

a conspiracy, for mere sales do not prove the existence of agreement that must exist for there to be

a conspiracy.” United States v. Hereford, 162 F. App’x 439, 441 (6th Cir. 2006) (internal quotation

marks and citation omitted). On the other hand, evidence of repeat purchases from a single source

and large volumes of narcotics creates an inference of conspiracy. United States v. Sills, 662 F.3d

415, 417 (6th Cir. 2011), cert. denied, 132 S. Ct. 2408 (2012); United States v. Gunter, 551 F.3d

472, 482-83 (6th Cir. 2009); United States v. Caver, 470 F.3d 220, 233 (6th Cir. 2006); Hereford,

162 F. App’x at 441-42.4

       There is ample additional evidence beyond the mere purchase or sale from which knowledge

of the conspiracy may be inferred. The sheer quantity of drugs sold and repeated purchases from a

single source, establish a conspiracy. The evidence also established a common plan. Green

explained that he received money from Defendant, that he drove the drugs back from Arizona to

Detroit, and delivered them to Clifford, who “took the job of distributing the narcotics in the Detroit

area.” (R. 196 ID# 1331) Lasco also testified that, according to Defendant, Clifford’s role in the

drug trafficking operation was to “get the drugs and sell them.” (R.199 ID# 1738-39) Green stated

that the operation depended upon how fast Clifford sold the drugs, how quickly he, Green, could

make the drive, and whether Serrano would have more cocaine available. (R. 196 ID# 1358-59)

Defendant paid Green’s expenses. Green also said that on one occasion, Defendant helped Clifford

and Green unload kilos of cocaine from a secret compartment and put it in Clifford’s garage. Lasco

helped count the money and made Defendant’s travel plans for his drug business trips. In short, the



       4
        Defendant’s recitation of case law from other circuits adopting a different rule are
inapposite.

                                                  -8-
jury could easily infer from this evidence that there was a common plan to transport large amounts

of cocaine from Arizona purchased from Serrano for distribution by Clifford in the Detroit area and

that Defendant was the head of the organization.5

                                            2. Count 2

       Similarly, Defendant claims that the Government did not establish that he did anything to aid

and abet Clifford in possessing with the intent to distribute cocaine. To establish possession with

intent to distribute a controlled substance under § 841(a)(1), the government was required to prove

beyond a reasonable doubt that Defendant knowingly possessed more than five kilograms of cocaine

with the intent to distribute it. United States v. Wettstain, 618 F.3d 577, 585 (6th Cir. 2010).

Possession may be actual or constructive. Id. at 586. “Constructive possession requires evidence

supporting the conclusion that the defendant had the ability to exercise knowing ‘dominion and

control’ over the items in question.” Id. (internal quotation marks and citation omitted).

       To sustain a conviction for aiding and abetting, the government must prove that the defendant

was either a principal or an aider and abettor. United States v. Samuels, 308 F.3d 662, 666 (6th Cir.

2002). See also United States v. Mullins, 22 F.3d 1365, 1368 (6th Cir. 2002) (“It is axiomatic,

however, that the government may always prove the defendant is guilty as a principal, even where

the indictment charges only that he acted as an accessory.”). To be convicted as a principal, the

government had to demonstrate Defendant’s intent to possess with the intent to distribute cocaine

and that he committed an overt act that was a “substantial step” towards the commission of the

crime. Samuels, 308 F.3d at 666. “When a defendant engages in active negotiations to purchase


       5
         Given the abundant evidence of a conspiracy, the court did not err by failing to instruct
the jury sua sponte that the mere existence of a buy-seller relationship was inadequate to
establish membership in a conspiracy, as Defendant now suggests on appeal.

                                                 -9-
drugs, he has committed the ‘substantial step’ towards the crime of possession.” Id. (citation

omitted). See also United States v. Gardner, 488 F.3d 700, 711 (6th Cir. 2007) (same).

       Defendant’s constructive possession of the cocaine, with intent to distribute, supports his

conviction on Count 2 as a principal. See Wettstain, 618 F.3d at 586. As discussed above, the

evidence established that Defendant “controlled” the cocaine that Clifford distributed. Defendant

provided the money, made the arrangements with Serrano, and directed Green’s activities, including

delivery of the cocaine to Clifford. Moreover, as noted, Green testified that Defendant helped him

unload cocaine from a Hummer at Clifford’s place. This is enough to show that Defendant aided and

abetted Clifford in possessing with intent to distribute cocaine. Further, Defendant also aided and

abetted Clifford’s distribution by consistently facilitating the delivery of the drugs Clifford

distributed.

                                           3. Count 26

       Defendant contends that the evidence does not establish that he “used” any of the four

premises for the purpose of “distributing” cocaine. To prove that Defendant maintained a drug-

involved premises, the government had to show that he knowingly leased, rented, or used “any place,

whether permanently or temporarily, for the purpose of manufacturing, distributing, or using any

controlled substance.” 21 U.S.C. § 856(a)(1); United States v. Russell, 595 F.3d 633, 642 (6th Cir.

2010). The drug-related use of the property must be “significant or important.” Russell, 595 F.3d

at 642-43.

       Count 26 listed eight properties, but the jury was instructed that it needed to find only that

one of the four properties listed in the jury instruction was “maintained as drug-involved premises”




                                               -10-
in order to convict Defendant on that count. The evidence supports the conviction with respect to

all four properties.

        As to 1474 Robert Bradbury, Detroit, where Clifford lived: Although Defendant argues that

there was no evidence to show that he knew Clifford used his apartment to distribute cocaine, he

acknowledges that Green delivered cocaine to that address at least once. Furthermore, the “tools of

the trade” seized during the March 14, 2008 search clearly establish it was used for distribution

purposes; agents seized eleven kilograms of cocaine, $200,000, a digital scale, packaging materials,

a money counting machine, and weapons. Also, Lasco testified that Defendant told her that the

money found during the March 2008 raid, which was “from the run that they had just done,”

belonged to him. (R. 199 ID# 1743) Defendant, as a coconspirator, is vicariously liable under the

Pinkerton doctrine for maintaining his brother’s apartment. United States v. Myers, 102 F.3d 227,

237 (6th Cir. 1996); United States v. Clavis, 956 F.2d 1079, 1092 (2d Cir. 1992) (citing Pinkerton

v. United States, 328 U.S. 640, 647-48 (1946)).6 Use of the apartment to distribute cocaine was

reasonably foreseeable to Defendant. See id.

        Regarding 2965 Parkway Circle and 34427 Sea Oats, Sterling Heights, which Defendant

leased: The evidence showed that Defendant paid the rent for both apartments. Lasco testified that

she counted money and bundled proceeds in the Parkway apartment, and used her computer to make

Defendant’s travel arrangements between Detroit and Arizona. Green testified that he picked up

$220,000 from Defendant at this apartment, for a trip to Arizona. In the Sea Oats apartment officers

found a black bag with over $209,000. This is evidence that the apartments were “used” for the

purpose of running a drug trafficking business.


        6
            A Pinkerton instruction was given.

                                                 -11-
       Concerning 9525 East Baywood, Mesa, Arizona, the apartment where the cocaine was

packaged: Serrano’s testimony revealed that Defendant paid for the stash house, where the drugs

were packaged and picked up by Green. Further, DEA agents searched it (while Green was there)

and found twenty-seven kilograms of cocaine.

       In short, there was sufficient evidence for the jury to find any one of these places was

maintained as a drug-involved premises.

                                      B. New Trial Motion

       Defendant offered four grounds for a new trial. None were successful. He challenges those

rulings on appeal.

                                          1. Secret Deal

       Defendant complains that the Government failed to disclose a promise by prosecutors in the

Southern District of Indiana to dismiss drug charges against Ochoa if he testified at Defendant’s

trial.7 According to Defendant, this meant that Ochoa was receiving a bigger sentence reduction than

he admitted, and that the jury should have known this in assessing his credibility. At trial, Ochoa,

testifying for the defense, indicated that his plea agreement stated that the government would

recommend a fifty percent reduction in his guidelines range if he testified truthfully.

       There are several problems with this argument. First, although on the Government’s witness

list, Ochoa was called by the defense. The duty to disclose impeaching evidence does not normally

apply to defense witnesses. United States v. Johnson, 581 F.3d 320, 331 (6th Cir. 2009) (holding



       7
        Ochoa was indicted in the Southern District of Indiana on April 23, 2008, with
possession with intent to distribute cocaine, unlawful possession of a firearm by a convicted
felon, possession of marijuna, and forfeiture. The indictment was dismissed in February 2011.
Defendant’s trial en ded in August 2010.

                                                -12-
that the government did not violate Brady v. Maryland, 373 U.S. 83 (1963) by not informing the

defense of evidence which called into question a defense witness’s credibility). Second, the

agreement with the prosecutors in the Southern District of Indiana was disclosed in Ochoa’s written

plea agreement. Defendant introduced the plea agreement at trial and questioned Ochoa about it.

That agreement states that Ochoa was pleading guilty to a conspiracy that occurred in the Eastern

District of Michigan, the Southern District of Indiana, and the District of Arizona; that the agreement

was binding on the Eastern District of Michigan and the Southern District of Indiana; and that “the

government will not bring additional charges against defendant based on any of the conduct reflected

in the attached worksheets”– in other words, arising out of the conspiracy. Although not pellucid

perhaps, dismissing charges already filed against Ochoa was within the scope of the agreement,

which not coincidentally, was signed by AUSAs representing the Southern District of Indiana.

Third, Ochoa’s potential liability in Indiana was obvious, and Defendant knew or should have known

this: Ochoa was arrested in Indiana, agents found cocaine and firearms in his house in Indiana, Green

picked him up in Indiana while Green was driving between Detroit and Arizona. Furthermore,

Defendant questioned Ochoa about his motivation to cooperate. In other words, Defendant should

have discovered the purported agreement at the time of trial, so he is not entitled to a new trial on

this basis. See United States v. Garland, 991 F.2d 328, 335-36 (6th Cir. 1993) (holding that to

obtain a new trial on the basis of newly discovered evidence, a defendant must establish that “the

evidence (1) was discovered only after trial, (2) could not have been discovered earlier with due

diligence, (3) is material and not merely cumulative or impeaching, and (4) would likely produce an

acquittal if the case were retried”). Cf. United States v. Faulkenberry, 614 F.3d 573, 590 (6th Cir.

2010) (holding that the government did not violate Brady rule by allegedly failing to disclose that


                                                 -13-
defense witness had previously acted as FBI informant and to disclose reports summarizing FBI

interviews with witness, since defense counsel was aware of witness’s status, but still hired him as

an expert witness, and counsel should have been aware of reports, and “there [was] no evidence that

the government had any knowledge as to whether [the defense witness] had in any way misled

defendants' counsel regarding the extent of his discussions with the FBI”). Finally, Defendant has

no proof of a secret deal between Ochoa and the Government to dismiss the Indiana charges.

                                                2. Santiago

       Defendant also claims that he did not learn until after trial that Santiago was a DEA

informant during the conspiracy.8 Defendant claims that Santiago’s status as a DEA informant was

exculpatory evidence because the testimony reflected that Santiago introduced Ochoa to Defendant

and ordered Ochoa to supply Defendant with cocaine, which somehow meant that Defendant was

entrapped. However, a successful entrapment defense requires a showing that the defendant was not

predisposed to commit the crime. See, e.g., United States v. Amawi, 695 F.3d 457, 483 (6th Cir.

2012) (for entrapment defense to apply, the evidence must demonstrate “a patently clear absence of

predisposition”), cert. denied, 2013 WL 221652 (U.S. Feb 25, 2013) (No. 12-8257). Here, the

evidence shows at a minimum, that Defendant began buying directly from Serrano shortly after

Ochoa took over from Santiago (who was Serrano’s original contact), and continued the relationship

after Ochoa left the organization, clearly demonstrating that Defendant was not a passive recipient

of cocaine from Santiago and Ochoa.




       8
           Santiago did not testify at trial.

                                                   -14-
                                             3. Agent Grace

        Defendant complains that the district court abused its discretion in failing to give a

contemporaneous instruction that Agent Grace gave both fact and opinion testimony.9 Grace

testified that he was involved in Clifford’s arrest and in searching Clifford’s apartment. Grace also

explained in the form of an opinion the meaning of some recorded telephone conversations between

Defendant and his brother or another member of the conspiracy. The district court gave a special

instruction at the end of proofs about Grace’s dual role, the day after Grace testified.

        Because Defendant did not complain below, we review for plain error. To constitute plain

error, “there must be error, (2) that is ‘plain,’ (3) and that ‘affects substantial rights.’” Johnson v.

United States, 520 U.S. 461, 466-67 (1997) (quoting United States v. Olano, 507 U.S. 725, 732

(1993)). An error “affects substantial rights” when it “affected the outcome of the district court

proceedings.” Olano, 507 U.S. at 734. If these three conditions are met, an appellate court may

exercise its discretion to address the issue if the error seriously affects the fairness or integrity of the

judicial proceedings. Johnson, 520 U.S. at 467.

        Defendant claims there is plain error here, relying on United States v. Lopez-Medina, 461

F.3d 724 (6th Cir. 2006). In Lopez-Medina, we held that the admission of law-enforcement

personnel's testimony as both fact and expert witnesses, without a dual-purpose instruction and

without any clear demarcation between fact and expert testimony, was plain error. Id. at 742–45.

This reliance is misplaced. As we recently explained in United States v. Van: “Lopez–Medina does


        9
          Defendant does not argue that the district court abused its discretion in allowing Grace to
testify in a dual role. See United States v. Ham, 628 F.3d 801, 804 (6th Cir. 2011) (noting that
this court consistently holds that a law enforcement officer may testify as an expert about a drug
dealer’s method of operation pursuant to Fed. R. Evid. 702). He also does not complain about
the instruction given.

                                                   -15-
not require a district court to offer such instructions twice; it found error where the district court

provided neither a cautionary jury instruction regarding the agents' dual roles nor a clear demarcation

between their fact and expert testimony.” United States v. Van, 427 F. App’x 423, 428-29 (6th Cir.

2011) (finding no error where the district court gave an expert-witness instruction during the jury

charge and cautioned the jury that the law enforcement officer testified in two capacities; citing

Lopez-Medina, 461 F.3d at 745), cert. denied, 132 S.Ct. 1123 (U.S. Jan 17, 2012) (No. 11-7793) .10

Here, as is Van, although a special instruction was not given before Grace testified, the court

specifically explained Grace’s dual role during the jury charge, one day after Grace testified. In

short, as in Van, the principle of Lopez-Medina was not violated. See also United States v. Dodson,

450 F. App’x 505, 510-11(6th Cir. 2011) (finding no error where district court failed to give a

contemporaneous instruction, did not identify law-enforcement officer as an expert, but allowed him

to give opinion testimony, and in its jury charge, gave pattern jury instruction explaining how the

jury should weigh opinion testimony). Cf. United States v. Vasquez, 560 F.3d 461, 470-71 (6th Cir.

2009) (finding harmless error where the court failed to give a cautionary instruction because no other

evidentiary errors were alleged, and during preliminary instructions, the district court told the jurors

that they alone were to determine whether to believe any witnesses and what to believe). In short,

this contention is without merit.

                                              4. Serrano

        Defendant claims that he is entitled to a new trial because Serrano, three times during cross-

examination, declined to answer the question presented. He claims that Serrano’s invocation of his


        10
         In Van, the defendant objected to the instruction because the officer had not been
qualified for an expert, and complained that the court should not have characterized him as an
expert. Van, 427 F. App’x at 427-28.

                                                 -16-
Fifth Amendment right against self-incrimination violated his Confrontation Clause rights.

Defendant did not object or ask the district court to direct the witness to answer, so we review for

plain error.

        “The Confrontation Clause of the Sixth Amendment guarantees a defendant an opportunity

to impeach the credibility of a witness against him because impeachment is fundamental to effective

cross-examination.” United States v. Holden, 557 F.3d 698, 704 (6th Cir. 2009) (citing Davis v.

Alaska, 415 U.S. 308, 315–18 (1974)). If the witness’s invocation of his Fifth Amendment privilege

prejudices the defendant’s right to cross-examine him, the court must strike the witness’s entire

testimony and instruct the jury to disregard it. United States v. Gullett, 713 F.2d 1203, 1208-09 (6th

Cir. 1983).

        Defendant objects to three lines of questioning. A review of the record reveals that none of

his objections have any merit. First, Defendant complains that Serrano refused to answer questions

about his own drug dealing. Defense counsel said: “We assume that you were selling drugs to make

money?” Serrano: “I don’t know.” Defense counsel retorted: “You don’t know. It takes money to

buy these kilos, doesn’t it? Whenever he decide[s] to answer the question, I’ll ask another

question?” Serrano responded: “Please move to the next question.” Defense counsel then continued

to question Serrano about whether he was making a profit in the drug business. Serrano’s statement

“Please move to the next question,” was not an invocation of Fifth Amendment. Defense counsel

did not pose a real question, and to the extent he did, it was rhetorical.

        Next, Defendant objects to Serrano’s statement: “I will remain silent.” But Serrano’s answer

came in response to the following question: “You didn’t learn your lesson the first time, did you?”




                                                 -17-
Again, this was a rhetorical question, so the lack of a response by Serrano did not deprive Defendant

of any opportunity to attack Serrano’s credibility.

       Third, referring to Serrano’s nephews, who were paid to wrap kilos of cocaine for sale to

Defendant, counsel asked whether “You had other people pay them, but they were part of your

business?” Serrano responded: “I’m not going to answer that.” However, Serrano had already

responded to questions from defense counsel about whether he “had a family drug business,” and

maintained that Primo [Ochoa] and Defendant had paid them for wrapping the cocaine. Moreover,

Green had testified that Defendant gave him an extra $1,000 to pay for the special wrapping. In any

event, Defendant does not explain how information about who paid Serrano’s nephews was relevant

to the charges or to Serrano’s credibility.

       In short, we do not perceive Serrano’s responses as invocations of his Fifth Amendment

privilege at all. Moreover, review of the trial testimony demonstrates that defense counsel was able

to effectively cross-examine Serrano. See generally Delaware v. Van Arsdall, 475 U.S. 673, 679

(1986) (stating that“‘the Confrontation Clause guarantees an opportunity for effective

cross-examination, not cross-examination that is effective in whatever way, and to whatever extent,

the defense might wish’” (quoting Delaware v. Fensterer, 474 U.S. 15, 20 (1985) (per curiam)

(emphasis in Fensterer)). There is no plain error here.

                                       5. Cumulative Error

       Given the foregoing, this issue is moot.

                                              C. Sentence

       Defendant contends that his sentence is both procedurally and substantively unreasonable.

He claims it is procedurally unreasonable because the district court improperly applied a four-level


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leadership enhancement. He claims the sentence is substantively unreasonable because the court

failed to consider the unwarranted disparity between his sentence of 360 months, and Clifford’s and

Green’s sentences, 160 months and 24 months, respectively.

                                        1. Leadership Role

       We review the district court's factual findings as to an aggravating role enhancement for clear

error. United States v. Castilla–Lugo, 699 F.3d 454, 459 & n. 5 (6th Cir. 2012), cert. denied, 2012

WL 420283 (March 4, 2013) (No. 12-959). This court’s standard of review applied to the district

court's legal conclusions regarding leadership roles under U.S.S.G. 1B1.1 is “somewhat unsettled,”

and we have not addressed whether our review “should be deferential rather than de novo.” Id. at

459. Under either standard, however, the district court properly applied the four-level increase for

Defendant’s role as an organizer or leader.

       A four-level enhancement is appropriate “if the defendant was an organizer or leader of a

criminal activity that involved five or more participants, or was otherwise extensive.” U.S.S.G.

3B1.1(a). In determining whether to apply the aggravating role enhancement and to what degree,

courts should consider whether the defendant has exercised decision making authority, recruited

accomplices, received a large share of the profits, was instrumental in planning or organizing the

offense, and exercised authority over others. U.S.S.G. § 3B1.1 cmt. n. 4; United States v. Vasquez,

560 F.3d 461, 473 (6th Cir. 2009). “A district court need not find each factor in order to warrant an

enhancement.” Castilla–Lugo, 699 F.3d at 460.

       Defendant argues that the four-level enhancement was unjustified because he was an equal

partner with Green and Clifford, he did not recruit any of the other participants, and he did not get

the largest share of the profits. These arguments are unavailing. First of all, the test is whether the


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defendant exercised decision making authority. See Vasquez, 560 F.3d at 473 (holding that the

district court did not err in imposing two-level enhancement for leadership role despite another

leader in the offense because it found that the evidence established that the defendant was involved

in details of the drug transaction, acted as a supplier to others, and had authority over another).

Further, under § 3B1.1(a), Defendant needed to supervise only one other participant. United States

v. Baker, 559 F.3d 443, 449 (6th Cir. 2009); see also U.S.S.G. § 3B1.1(a) cmt. n.2 (stating that, “[t]o

qualify for an adjustment under this section, the defendant must have been the organizer [or] leader

. . . of one or more other participants”). As the district court found, Defendant was the “money

man,” and that, as a consequence, “the other participants who did have defined roles were directed

by and led by the defendant in their commission of the offense.” (R. 241 ID# 2379) The evidence

reflected that Defendant (1) arranged with Serrano to transact business and rent a place in Arizona;

(2) decided the amount of cocaine to purchase on a given trip; (3) furnished the money for special

vehicles and several apartments where the drug business was conducted; (4) directed Green where

to deliver the cocaine; and (5) paid Green’s expenses.

        The evidence also reflects that Defendant recruited Green, asking him to continue to work

after Ochoa left the organization. Defendant also recruited Lasco to help the organization by making

travel arrangements and counting huge cash. He paid her rent and gave her a weekly allowance.

        Finally, as to profit share: the record reflects that Defendant controlled the money and

therefore the operation. His complaint that he only got paid “at the end” reveals the extent of his

control, not the extent of his profits in relation to the other coconspirators.

        We conclude that the evidence supports the four-level enhancement and that the district court

did not err under either standard of review.


                                                 -20-
                                   2. Unwarranted Disparity

       Defendant says the disparity between his sentence and Clifford’s and Green’s sentence

renders his sentence substantively unreasonable because the evidence shows that they were

responsible for the same quantity of controlled substances attributed to him, more than 150

kilograms.

       This argument fails. Section 3553(a)(6) “‘concerns national disparities between defendants

with similar criminal histories convicted of similar criminal conduct – not disparities between

codefendants.” United States v. Mitchell, 681 F.3d 867, 883 (6th Cir. 2012) (quoting United States

v. Conatser, 514 F.3d 508, 521 (6th Cir. 2008) (emphasis in Conatser)). The district court is

permitted but not required to consider sentence disparities between codefendants’ sentences. United

States v. Presley, 547 F.3d 625, 631 (6th Cir. 2008); United States v. Simmons, 501 F.3d 620, 624

(6th Cir. 2007)). A disparity based on another defendant’s cooperation is not “unwarranted” within

the meaning of 18 U.S.C.§ 3553(a). Mitchell, 681 F.3d at 883-84. Finally, a codefendant’s overly

lenient sentence does not render a defendant’s within-guidelines sentence substantively

unreasonable. United States v. Benson, 591 F.3d 491, 505 (6th Cir. 2010) (“As the entirety of []

Benson’s argument rests on the proposition that his sentence is unreasonable as compared to his co-

defendants, his argument must fail.”).

       The district court attributed 800 kilograms to Defendant.11 This was a reasonable estimate

based on the testimony. Offense level 38 applies to 150 kilograms or more. U.S.S.G. § 2D1.1.




       11
         Defendant acknowledges in his reply brief that the trial testimony established more than
150 kilograms of cocaine and that any objection by him “would have been pointless.”

                                               -21-
With a criminal history category of II, the advisory guideliness range was 360 months to life. His

360-month sentence was at the very bottom of that range. As the district court noted, Defendant’s

guidelines range understated the seriousness of the offense. Thus, the court could have imposed a

much higher guidelines sentence.

       Clifford had a advisory sentencing range 151-188 months, based on an offense level of 37

and a criminal history score I. The court sentenced him to 160 months. Green’s guidelines range

was 87 to 108 months, based on an offense level of 34 and a criminal history score of I. Although

Green received only a two-year sentence, he pleaded guilty, cooperated in the investigation by acting

as a confidential informant, and testified at trial. He wore a wire to record conversations with

Defendant, lead DEA agents to the Arizona residences, and revealed the specially modified vehicles.

Given the differences in their guidelines ranges, it cannot be said that the district court abused its

discretion, especially when it was not required to consider it at all.

                                          III. Conclusion

       The judgment of the district court is AFFIRMED.




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