               NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                          File Name: 14a0319n.06

                                       Case No. 13-3645                              FILED
                                                                                  Apr 24, 2014
                                                                           DEBORAH S. HUNT, Clerk
                         UNITED STATES COURT OF APPEALS
                              FOR THE SIXTH CIRCUIT


UNITED STATES OF AMERICA,                           )
                                                    )
       Plaintiff-Appellee,                          )
                                                    )     ON APPEAL FROM THE UNITED
v.                                                  )     STATES DISTRICT COURT FOR
                                                    )     THE SOUTHERN DISTRICT OF
SONTAY T. SMOTHERMAN,                               )     OHIO
                                                    )
       Defendant-Appellant.                         )
                                                    )
                                                    )


       BEFORE: MERRITT, COOK, and DONALD, Circuit Judges.

       COOK, Circuit Judge.        Following a jury trial, Sontay Smotherman appeals his

convictions and sentence for drug trafficking and firearm charges, challenging the sufficiency of

the evidence, pretrial rulings concerning conspiracy evidence and an undisclosed confidential

informant, and the drug-quantity determination at sentencing. We AFFIRM.

                                               I.

       Smotherman’s charges stem from the Columbus Police Department’s investigation of a

suspected narcotics-trafficking residence at 401 Taylor Avenue in fall 2011. After observing

known heroin users frequent the residence, police obtained a warrant and searched the house.

They found Smotherman in the garage near a pile of cash and a box containing two handguns,

drug paraphernalia in a bedroom, 800 individual packets of heroin (approximately 25 grams) in
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United States v. Smotherman


the kitchen microwave, and more than $6,000 in a car behind the house. A second superseding

indictment charged Smotherman with possessing heroin with the intent to distribute in violation

of 21 U.S.C. § 841; possessing a firearm in furtherance of a drug-trafficking crime in violation of

18 U.S.C. § 924(c); and conspiracy to distribute 100 grams or more of heroin in violation of 21

U.S.C. § 846.

       Prior to trial, Smotherman unsuccessfully moved to suppress evidence obtained from a

different drug house, 823 West Rich Street, and to compel the disclosure of a confidential

informant. At the close of evidence, the district court denied Smotherman’s motion for a

judgment of acquittal, and the jury convicted Smotherman of the above charges. At sentencing,

Smotherman renewed his objection to the drugs found at 823 West Rich Street, but the district

court included them as part of the larger drug-trafficking conspiracy, sentencing Smotherman to

consecutive 60-month terms for the firearm and drug-possession charges—both statutory

minimums—for a combined sentence of 120 months. See 18 U.S.C. § 924(c)(1)(A)(i); 21 U.S.C.

§ 841(b)(1)(B)(i). Smotherman timely appeals.

                                                II.

A. Sufficiency of the Evidence

       We review Smotherman’s sufficiency-of-the-evidence challenges under the Jackson

standard, affirming so long as the evidence, viewed in the light most favorable to the

government, permits a rational juror to find the crime’s essential elements beyond a reasonable

doubt. Jackson v. Virginia, 443 U.S. 307, 319 (1979); United States v. Ramirez, 635 F.3d 249,

255 (6th Cir. 2011). The evidence here supported each conviction.

       Beginning with the drug-trafficking convictions, Smotherman claims that the government

proved neither his participation in a heroin-distribution conspiracy nor his possession of heroin.

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He specifically denies having anything to do with 823 West Rich Street. But coconspirator

testimony established the following key facts: (1) Smotherman and his cousin agreed to sell

heroin at 401 Taylor Avenue; (2) Waymon Price supplied the heroin from his stash house at 823

West Rich Street; (3) Price’s driver, Bryan Johnson, made frequent visits—almost “every other

day”—to 401 Taylor Avenue for heroin deliveries and cash pickups involving Smotherman; and

(4) Johnson observed Smotherman selling heroin to customers. (R. 259, Trial Tr. (Johnson) at

74–75, 104–11, 122–23; id. (Arnett Smotherman) at 164–71.) In all, Johnson made 15 to 25

trips to 401 Taylor Avenue between September and October 2011, supplying an estimated 100–

200 grams of heroin. (See id. (Johnson) at 105–111, 123.) The evidence thus demonstrates more

than a mere buyer-seller relationship; multiple parties agreed to distribute heroin out of 401

Taylor Avenue, and Smotherman actively participated in the conspiracy. See United States v.

Deitz, 577 F.3d 672, 680–81 (6th Cir. 2009) (explaining that frequent, similar drug transactions

can establish a larger drug-distribution conspiracy). It matters not whether Smotherman knew

about the 823 West Rich Street supply chain. United States v. Salgado, 250 F.3d 438, 447 (6th

Cir. 2001) (“While an agreement must be shown beyond a reasonable doubt, the connection

between the defendant and the conspiracy need only be slight, and the government is only

required to prove that the defendant was a party to the general conspiratorial agreement.”).

       The same evidence supports the possession count. Though police found three other

people in the house, coconspirators’ accounts of Smotherman’s frequent drug transactions at 401

Taylor Avenue sufficed to establish both constructive possession of the heroin found in the

kitchen microwave and intent to distribute. See United States v. Newsom, 452 F.3d 593, 608–09

(6th Cir. 2006) (explaining that “constructive possession . . . exists when a person . . . knowingly

has the power and the intention at a given time to exercise dominion and control over an object,”

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and “may be proven by either direct or circumstantial evidence”). The fact that Smotherman’s

coconspirators pleaded guilty does not undermine the legal significance of their testimony,

especially in light of the corroborating physical evidence. See, e.g., United States v. Cruz, 270 F.

App’x 393, 395–96 (6th Cir. 2008) (per curiam) (explaining that even uncorroborated

accomplice testimony can support a conviction).

         Turning to the firearm conviction, Smotherman emphasizes the lack of physical evidence

directly linking him to the boxed handguns found at 401 Taylor Avenue, as well as the fact that

he could legally possess firearms prior to his conviction. But he concedes that Johnson testified

that he carried or wore a gun on his person during drug transactions. (R. 259, Trial Tr. (Johnson)

at 106–10.) And the government points to other coconspirator testimony corroborating this fact.

(Id. (Arnett Smotherman) at 176.) Ample evidence thus supported the jury’s conclusion that he

used a firearm to “promote or facilitate” a drug-trafficking crime, as necessary for conviction

under 18 U.S.C. § 924(c). See United States v. Mackey, 265 F.3d 457, 461 (6th Cir. 2001).

B. Admissibility of 823 West Rich Street Evidence

         Smotherman next faults the district court for allowing evidence of the heroin distribution

occurring at 823 West Rich Street, reiterating that he had nothing to do with that location. We

find no abuse of discretion. See United States v. Lopez-Medina, 461 F.3d 724, 741 (6th Cir.

2006).

         Again, the government needed to establish the existence of a drug-trafficking conspiracy,

not just a buyer-seller relationship. It did this by presenting evidence of a distribution agreement

between the heroin supplier at 823 West Rich Street and the downstream sellers at 401 Taylor

Avenue—as noted above, Johnson’s frequent heroin and cash runs, delivering heroin from Price

to Smotherman and returning with money. Moreover, Smotherman’s cousin, with whom he

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agreed to sell drugs, packaged heroin at both locations. (R. 259, Trial Tr. (Arnett Smotherman)

at 171–73.) Thus, whether or not Smotherman knew of the activities at 823 West Rich Street,

the evidence concerning the stash house was relevant to—and highly probative of—the

conspiracy charge. See Fed. R. Evid. 401(a) (“Evidence is relevant if . . . it has any tendency to

make a fact more or less probable than it would be without the evidence.”); Dortch v. Fowler,

588 F.3d 396, 400 (6th Cir. 2009) (noting Rule 401’s “extremely liberal” relevance standard);

see also United States v. Schultz, 855 F.2d 1217, 1221 (6th Cir. 1988) (acknowledging the chain-

like design of many drug conspiracies, and concluding that “[i]t is not necessary to prove that the

defendant was aware of each act of his coconspirators in furtherance of the conspiracy”). Given

his frequent dealings with the residents of 823 West Rich Street, we discern no risk of unfair

prejudice to Smotherman from the admission of this evidence, let alone one substantially

outweighing its probative value. See Fed. R. Evid. 403.

C. Undisclosed Confidential Informant

       Next, Smotherman claims that the district court abused its discretion in denying

disclosure of a confidential informant he believes “provide[d] the basis for the case against

[him].” Yet, other than his speculation that the informant participated in drug transactions and

“may disclose entrapment or other issues,” Smotherman fails to demonstrate the importance of

the confidential informant to either the government’s trial strategy or his defense.

       Courts will order the disclosure of a confidential informant only upon a showing that it

“is essential to a fair trial.” United States v. Moore, 954 F.2d 379, 381 (6th Cir. 1992). Because

“[m]ere conjecture or supposition” will not do, United States v. Sharp, 778 F.2d 1182, 1187 (6th

Cir. 1985) (quoting United States v. Gonzales, 606 F.2d 70, 75 (5th Cir. 1979)), the district court

properly denied Smotherman’s motion.

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D. Sentencing: Drug-Quantity Determination

       Last, Smotherman assigns clear error to the district court’s drug-quantity calculation at

sentencing, asserting that it improperly included drugs from the stash house in determining that

his crimes involved more than 100 grams of heroin. The jury’s verdict forecloses this argument,

in that it found Smotherman guilty of participating in a drug-trafficking conspiracy involving

100 grams or more of heroin. Johnson’s estimated total deliveries to 401 Taylor Avenue

supported this conclusion. The district court therefore “c[ould not] ignore the jury’s findings as

to drug quantity.” United States v. Ricketts, 317 F.3d 540, 545 (6th Cir. 2003). Because the

jury’s finding necessitated the 60-month mandatory minimum sentence under 21 U.S.C.

§ 841(b)(1)(B)(i), we reject Smotherman’s drug-quantity argument.          See United States. v.

Garner, 491 F.3d 532, 536–37 (6th Cir. 2007) (concluding that the jury’s drug-quantity

determination, and not the district court’s calculation, triggered the statutory minimum sentence).

                                                III.


       We AFFIRM.




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