            NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                       File Name: 05a0170n.06
                        Filed: March 3, 2005

                                       No. 02-4382

                      UNITED STATES COURT OF APPEALS
                           FOR THE SIXTH CIRCUIT


UNITED STATES OF AMERICA,                 )
                                          )
       Plaintiff-Appellee,                )       ON APPEAL FROM THE
                                          )       UNITED STATES DISTRICT
v.                                        )       COURT FOR THE NORTHERN
                                          )       DISTRICT OF OHIO
ERNEST TATE,                              )
                                          )
       Defendant-Appellant.               )


BEFORE: MARTIN and ROGERS, Circuit Judges; and BELL, District Judge.*

       PER CURIAM. On February 14, 2001, the grand jury issued an eight-count

superseding indictment against nine defendants. Count I of the superseding indictment

charged Defendant-Appellant Ernest Tate and six others with a conspiracy to possess with

intent to distribute and to distribute over five kilograms of cocaine and over fifty grams of

cocaine base in violation 21 U.S.C. §§ 841(a)(1) and (b)(1)(A). The indictment alleged that

from 1995 to 2000 the defendants conspired to transport cocaine from California and to

distribute cocaine and cocaine base in the Cleveland, Ohio, area. Tate was convicted by a

jury and sentenced to 292 months in prison. Tate appeals his conviction and sentence. For

       *
        The Honorable Robert Holmes Bell, United States District Judge for the Western
District of Michigan, sitting by designation.
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U.S. v. Tate

the reasons that follow we affirm the conviction and remand for resentencing in light of

United States v. Booker, 125 S. Ct. 738 (2005).

                                               I.

       Tate's first argument on appeal is that the trial court committed prejudicial error when

it failed to strike testimony or give a curative instruction when testimony of defendant's

previous incarceration came into the record.

       Prior to co-defendant Willard Osborn's testimony, both the prosecution and the trial

court instructed Osborn not to mention that Tate had been in prison. Nevertheless, during

cross-examination, in response to defense counsel's question whether he had delivered money

to Tate's wife for eighteen months, Osborn replied, "[n]ot soon as he went to jails [sic], but

probably somewhere around there, afterwards." Defense counsel asked that the answer be

stricken and that the jury be requested to disregard it. The court said, "I don't understand

what's wrong with the answer." Defense counsel responded that it was nonresponsive. The

court then directed counsel to ask the question again.

       Osborn moved for a new trial on the basis of the trial court's failure to strike the

testimony or give a curative instruction. During the hearing on the motion the trial court

explained that it had not heard the reference to "jails" and accordingly had not understood

defense counsel's request. Counsel for the government also advised that it did not hear the

reference to "jails," and that had it heard this reference it would have requested a curative

instruction.
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U.S. v. Tate

       We review a trial court's decision not to grant a mistrial for abuse of discretion.

United States v. Forrest, 17 F.3d 916, 919 (6th Cir. 1994) (citing United States v. Chambers,

944 F.2d 1253, 1263 (6th Cir. 1991)). On review our primary concern is fairness to the

defendant. Id. We consider five factors in determining whether a mistrial is warranted after

an improper reference: (1) whether the remark was unsolicited, (2) whether the government's

line of questioning was reasonable, (3) whether the limiting instruction was immediate, clear,

and forceful, (4) whether any bad faith was evidenced by the government, and (5) whether

the remark was only a small part of the evidence against the defendant. Zuern v. Tate, 336

F.3d 478, 485 (6th Cir. 2003) (citing Forrest, 17 F.3d at 920). Three of these five

considerations concern the government's responsibility for the admission of the improper

comment.

       There is no question that it was improper for Osborn to comment on Tate's prior

incarceration and that a cautionary instruction would have been advisable. Nevertheless, it

should have been clear from the trial court's response to the request for a cautionary

instruction that the court had not heard or understood the witness' answer. Under the

circumstances it was incumbent on defense counsel to clarify why the witness' answer was

not responsive and why a cautionary instruction was called for. Furthermore, in this case the

government did not solicit the improper response and there is no assertion that the response

came in as the result of any bad faith on the part of the government. On the whole it appears

that the improper comment was inadvertent, isolated, not clearly stated, and constituted only
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U.S. v. Tate

a very small part of the total evidence against Tate. Accordingly, we conclude that the trial

court did not abuse its discretion in denying Tate's motion for new trial.

                                             II.

       Tate's second argument on appeal is that the trial court abused its discretion by not

permitting defense counsel to cross-examine a witness on his career offender status.

       During cross-examination of Osborn, defense counsel asked Osborn whether anyone

told him during his plea negotiations that he was subject to the career offender provisions of

the United States Sentencing Guidelines. In response to the government's objection, the trial

court ordered the question stricken and advised the jury to disregard it.

       The right to cross-examine prosecution witnesses is rooted in the Sixth Amendment.

Wright v. Dallman, 999 F.2d 174, 179 (6th Cir. 1993). Nevertheless, a trial court retains

broad discretion to limit the scope of cross-examination. United States v. Chance, 306 F.3d

356, 385 (6th Cir. 2002) (citing United States v. Mohney, 949 F.2d 1397, 1409 (6th Cir.

1991)). "Trial judges have latitude to 'impose reasonable limits on such cross-examination

based on concerns about, among other things, harassment, prejudice, confusion of the issues,

the witness' safety, or interrogation that is repetitive or only marginally relevant.'" United

States v. Beverly, 369 F.3d 516, 535-36 (6th Cir. 2004) (quoting United States v. Blakeney,

942 F.2d 1001, 1022 (6th Cir. 1991)).

       We review a trial court's rulings on the scope of cross-examination for abuse of

discretion. Chance, 306 F.3d at 385. In assessing whether the trial court abused its

discretion, we must decide whether, despite the limitation of cross-examination, "the jury was
No. 02-4382                                   5
U.S. v. Tate

otherwise in possession of sufficient information . . . to make a 'discriminating appraisal' of

a witness' motives and bias." United States v. Kone, 307 F.3d 430, 436 (6th Cir. 2002)

(quoting Stevens v. Bordenkircher, 746 F.2d 342, 347 (6th Cir. 1984)).

       Cross-examination of Osborn on the issue of his career offender status was not

essential to defense counsel's ability to show Osborn's motives and bias. The jury had

sufficient information to make a "discriminating appraisal" of whether Osborn was testifying

in exchange for lenient treatment at sentencing. During cross-examination Osborn admitted

that he had two prior felony convictions before entering his plea of guilty in this case, that

the judge told him he was facing ten years to life in prison, that by his plea he was limiting

his exposure to a possible sentence of only 11 to 15 years, and that he was testifying on the

advice of counsel. Testimony regarding the operation of the United States Sentencing

Guidelines would have been cumulative, time consuming, and confusing to the jury.

Accordingly, we find no abuse of discretion in the trial court's decision not to allow

questioning on the issue of Osborn's alleged career offender status.

                                             III.

       Tate's third argument on appeal is that the trial court deprived him of a fair trial by

endorsing and vouching for the credibility of the government and its case.

       Co-defendant Lawrence Hackney testified on behalf of the government that he

rejected the first plea agreement offered by the government and signed a second plea

agreement.     Defense counsel moved for production of the rejected plea offer.           The

government represented that the first and second plea agreements were the same with the
No. 02-4382                                    6
U.S. v. Tate

exception of the name of the defense counsel. After the jury was excused the government

advised that the first plea agreement had been destroyed and expressed its concern regarding

the implication that it had withheld information from the defense. In response to a question

from the trial judge Hackney advised that he did not sign the first agreement because it stated

that the conspiracy involved crack cocaine which was untrue. When the jurors returned to

the courtroom the trial judge instructed them not to presume that the government acted

improperly merely because the plea agreement that was rejected by the defendant no longer

existed.

       Tate assumes that because the government's representations regarding the first plea

agreement conflicted with Hackney's testimony the government must have misrepresented

the contents of the first plea agreement to the court or else Hackney must have committed

perjury. Tate accordingly contends that the trial court's instruction not to presume any

impropriety from the failure to preserve the first plea agreement improperly resolved a

factual issue that should have been left for the jury and improperly endorsed and vouched for

the credibility of the government and its case.

       Because Tate did not object to the trial court's instruction regarding the first plea

agreement, we review the instruction for plain error. FED. R. CRIM. P. 52(b); United States v.

Cromer, 389 F.3d 662, 672 (6th Cir. 2004). Pursuant to plain error review, if there is plain

error that affects a defendant's substantial rights, we may exercise our discretion to notice the

forfeited error, but only if the error "seriously affect[s] the fairness, integrity, or public
No. 02-4382                                    7
U.S. v. Tate

reputation of judicial proceedings." Cromer, 389 F.3d at 672 (quoting Johnson v. United

States, 520 U.S. 461, 467 (1997)).

       Contrary to Tate's assertions, by instructing the jury not to draw any presumptions of

irregularity from government's inability to produce an unsigned plea agreement, the trial

court did not vouch for the government's case or condone a violation of the government's

disclosure requirements under Brady v. Maryland, 373 U.S. 83 (1963). It is well within the

trial court's discretion to cure an unwarranted inference of improper conduct. It is also within

the trial court's discretion to limit cross-examination on collateral matters such as the content

of a plea agreement that was never signed by the witness. Accordingly, we conclude that the

trial court's instruction regarding the unsigned plea agreement did not constitute plain error,

much less error affecting substantial rights or the fairness of the proceedings.

                                              IV.

       Tate's fourth argument on appeal is that there was insufficient evidence to convict him

of conspiracy to possess and distribute cocaine. Tate does not deny that there was ample

evidence that he agreed with others to sell drugs. He contends, however, that the government

witnesses were not credible because they were all drug traffickers, who were facing federal

drug charges and who would have done anything, including commit perjury, to have their

sentences reduced.

       "When reviewing a claim of insufficient evidence, we examine the evidence in the

light most favorable to the government and draw all inferences in the government's favor in

order to determine whether any rational trier of fact could have found the elements of the
No. 02-4382                                   8
U.S. v. Tate

offense beyond a reasonable doubt." United States v. Robinson, 389 F.3d 582, 591 (6th Cir.

2004) (quoting United States v. Maliszewski, 161 F.3d 992, 1005 (6th Cir. 1998). A

defendant challenging the sufficiency of the evidence "bears a very heavy burden." United

States v. Henley, 360 F.3d 509, 513 (6th Cir. 2004) (quoting United States v. Spearman, 186

F.3d 743, 745 (6th Cir. 1999)). "Circumstantial evidence alone is sufficient to sustain a

conviction and such evidence need not remove every reasonable hypothesis except that of

guilt." Id. (quoting Spearman, 186 F.3d at 745). "Furthermore, it is well-settled that

uncorroborated testimony of an accomplice may support a conviction in federal court." Id.

(quoting Spearman, 186 F.3d at 745).

       In this case the government presented substantial evidence establishing Tate's active

participation in the conspiracy, particularly through the testimony of Osborn and Hackney,

which was corroborated with the tape recorded phone conversations between Osborn and

Tate. Here, as in Henley, much of the evidence was from co-conspirators who had an

incentive to testify against Tate. Nevertheless, as we said in Henley, the credibility of those

witnesses was for the jury to decide:

       We certainly recognize that the prospect of a reduced sentence could have
       provided a powerful incentive for Henley's co-conspirators to testify against
       him. Whether that incentive affected the credibility of their testimony,
       however, is for the jury to decide. The jury in this case was aware that Sanders
       and Luy had reason to believe that they could benefit from a reduction in their
       sentences as a result of their testimony against Henley. We simply cannot
       second-guess the jury's determinations with regard to whether and to what
       extent that motive may have affected those witnesses' credibility.

Henley, 360 F.3d at 514.
No. 02-4382                                   9
U.S. v. Tate

       The jurors in this case were aware that the alleged co-conspirators who testified

against Tate had reason to believe that they could obtain a reduction in their sentences as a

result of their cooperation with the government. They had the information necessary to

enable them to critically examine the witnesses' credibility. Under these facts, we hold that

any rational trier of fact could conclude that the United States met its burden of proving that

Tate conspired to distribute cocaine.

                                              V.

       Tate's fifth argument on appeal is that the trial court erred in not granting the

defendant a two-level reduction pursuant to U.S.S.G. § 3B1.2(b) for being a "minor

participant" in the offense.    Tate contends that the minimal nature of his role was

corroborated by the fact that much of the activity occurred while he was incarcerated.

       Under the Sentencing Guidelines, a defendant can receive a four-level reduction for

being a minimal participant or a two-level reduction for being a minor participant. U.S.S.G.

§ 3B1.2. A minimal participant is one who is "plainly among the least culpable of those

involved in the conduct of a group," and a minor participant is one who "is less culpable than

most other participants, but whose role could not be described as minimal."

U.S. SENTENCING GUIDELINES MANUAL § 3B1.2, cmt. nn. 1, 3 (1998). The determination

of a defendant's culpability "is heavily dependent upon the facts, and the defendant has the

burden of proving mitigating factors by a preponderance of the evidence." United States v.

Bartholomew, 310 F.3d 912, 924 (6th Cir. 2002) (quoting United States v. Perry, 908 F.2d

56, 58 (6th Cir. 1990)). We review a trial court's denial of a downward adjustment under
No. 02-4382                                   10
U.S. v. Tate

§ 3B1.2 "only for clear error." United States v. Solorio, 337 F.3d 580, 601 (6th Cir. 2003)

(quoting United States v. Campbell, 279 F.3d 392, 396 (6th Cir. 2002)).

       The evidence at trial revealed that Tate was involved in the conspiracy from the start,

receiving distribution quantities of cocaine from Osborne on a monthly basis. The fact that

Tate was incarcerated for a period of 18 months during a five year conspiracy does not make

him a minor participant under 3B1.2(b). Osborn testified that while Tate was incarcerated

Osborn sold cocaine on Tate's behalf and gave Tate's girlfriend $2000 a month until Tate was

released from incarceration and resumed his regular receipt of cocaine from Osborne. Based

upon the evidence at trial, there was no clear error in the trial court's decision not to grant

Tate a downward adjustment for his role in the offense.

                                             VI.

       Tate's remaining two arguments on appeal concern the trial court's determination of

the amount of drugs attributable to Tate for sentencing purposes. Tate argues that his

sentence should be vacated because the trial court relied on inherently unreliable testimony

in determining the drug amount and because the amount was not proven beyond a reasonable

doubt as required by Apprendi v. New Jersey, 530 U.S. 466 (2000).

       On January 12, 2005, the Supreme Court handed down its decision in United States v.

Booker, 125 S. Ct. 738 (2005). In Booker the Supreme Court reaffirmed its holdings in

Apprendi and Blakely v.Washington, 124 S. Ct. 2531 (2004), and held that the Sixth

Amendment required that "[a]ny fact (other than a prior conviction) which is necessary to

support a sentence exceeding the maximum authorized by the facts established by a plea of
No. 02-4382                                  11
U.S. v. Tate

guilty or a jury verdict must be admitted by the defendant or proved to a jury beyond a

reasonable doubt." 125 S. Ct. at 756. The Supreme Court also advised that its holdings in

Booker – "both the Sixth Amendment holding and our remedial interpretation of the

Sentencing Act" – applied to all cases pending on direct review. Id. at 769.

       The jury found Tate guilty of a conspiracy to distribute more than five kilograms of

cocaine and more than fifty grams of cocaine base. Under the Sentencing Guidelines, this

quantity carries a base offense level of 32. U.S.S.G. § 2D1.1(c). The trial court, however,

determined that Tate was responsible for over fifty kilograms of cocaine, a quantity that

carries a base offense level of 36. Id. Although the district court's factual findings may be

supported by the record, because the federal Sentencing Guidelines were mandatory at the

time the district court sentenced Tate, we are constrained under Booker to find that the

sentence imposed, which was based on a quantity that exceeded that found by the jury,

violated the Sixth Amendment. Because Tate objected to the trial court's determination of

the quantity of drugs attributable to Tate under Apprendi, see J.A. at 269, the sentencing

decision is reviewed under a de novo standard. Unless the Sixth Amendment error is shown

to be harmless, reversal is appropriate. Because there has been no showing that the error was

harmless, Tate is entitled to re-sentencing. See United States v. Oliver, No. 03-2126, 2005

WL 233779 (6th Cir. Feb. 2, 2005); United States v. Bruce, No. 03-3110, — F.3d. —, 2005

WL 241254 (6th Cir. Feb. 3, 2005).
No. 02-4382                                 12
U.S. v. Tate

       For the reasons stated herein we VACATE Tate's sentence and REMAND for

re-sentencing in light of this opinion and the Supreme Court's opinion in Booker. As to the

other errors raised by the defendant, we AFFIRM the district court's judgment.
