                   NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                              File Name: 18a0602n.06

                                          Nos. 17-3935/4075

                            UNITED STATES COURT OF APPEALS                                   FILED
                                 FOR THE SIXTH CIRCUIT                                Nov 30, 2018
                                                                                  DEBORAH S. HUNT, Clerk
 UNITED STATES OF AMERICA,                                   )
                                                             )
         Plaintiff-Appellee,                                 )
                                                                     ON APPEAL FROM THE
                                                             )
                                                                     UNITED STATES DISTRICT
 v.                                                          )
                                                                     COURT FOR THE
                                                             )
                                                                     SOUTHERN DISTRICT OF
 DAVID MCSHAN (17-3935), and                                 )
                                                                     OHIO
 FREDERICK ALLEN MCSHAN (17-4075),                           )
                                                             )
         Defendants-Appellants.                              )
                                                             )



Before: MERRITT, COOK, and LARSEN, Circuit Judges.

        LARSEN, Circuit Judge. A jury convicted Frederick McShan and his brother David

McShan of possession with intent to distribute heroin, as well as conspiracy to do the same. The

jury also convicted Frederick of money laundering. In Frederick’s case, the district court misspoke

when reading aloud the jury’s verdict, mistakenly omitting a zero from the jury’s written

determination that Frederick’s crime had involved “1000 grams or more of heroin.” Frederick

appeals, arguing that the district court lacked authority to re-poll the jury to correct this error, after

it had been “discharged,” but before the jurors had dispersed. He also appeals the district court’s

failure to grant his motion to sever. David appeals on grounds that the prosecutor’s opening

remarks, and various statements during trial, amounted to prosecutorial misconduct, and that the

district court erred by using acquitted conduct to calculate his sentence. Having considered the

arguments raised by the parties, we AFFIRM the judgment of the district court.
Nos. 17-3935/4075, United States v. David McShan, et al.


                                                  I.

       A grand jury indicted Frederick and David McShan along with five co-defendants on

charges arising from their participation in a heroin-trafficking organization. Using surveillance,

GPS tracking, and a confidential informant, law enforcement officials identified Frederick as the

leader of the organization, which operated in Steubenville, Ohio, and obtained its supply from a

contact in Chicago, Illinois. David, along with others, distributed heroin and collected proceeds

on Frederick’s behalf. For these deeds, Frederick and David faced several charges, including

conspiracy to possess with intent to distribute heroin in violation of 21 U.S.C. §§ 841 and 846 and

possession with intent to distribute heroin in violation of 21 U.S.C. § 841. Frederick was also

charged with eleven additional counts of possession with intent to distribute heroin in violation of

21 U.S.C. § 841 and one count of conspiracy to commit money laundering in violation of 18 U.S.C.

§ 1956.

       Following a five-day trial, the jury found Frederick and David guilty of all charges. The

district court announced the verdicts in open court, specifically stating, “On Special Verdict Form

No. 1, having found . . . Frederick . . . guilty of the charge of conspiring to possess with intent to

distribute heroin, We, the Jury, find, check one, 100 grams or more of heroin.” (Emphasis added.)

As to Special Verdict Form 2A, the court recited, “[H]aving found . . . David . . . guilty of the

charge of conspiring to distribute heroin, We, the Jury, do unanimously find beyond a reasonable

doubt the conspiracy involved a quantity of, and the box that is marked is less than 100 grams of

heroin.” (Emphasis added.) The district court then proceeded to poll the jury. Thereafter, the jury

was excused (4:50 p.m.) and asked to wait in the jury room, so the judge could personally thank

the jurors for their service. The court had been in recess for 14 minutes (4:51 p.m. to 5:05 p.m.)

when the jury was asked to return to the courtroom. Once the jury was reassembled in the



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courtroom, the district judge explained that the “jurors were taken directly from the courtroom to

the adjoining jury room.” And when the judge addressed the jurors, “an inquiry was made

regarding the amount set forth in the verdict—Special Verdict Form No. 1A,” which pertained to

Frederick. The district judge then acknowledged: “It appears that I have misread in open court

what is actually very clear on the verdict form filled in by the jury and I want to reread this into

the record.” The judge then reread the special verdict forms for David and Frederick, according

to which the jury had found David guilty of conspiring to possess with intent to distribute less than

100 grams of heroin (no change) and had found Frederick guilty of conspiring to possess with

intent to distribute 1000 grams or more of heroin, not 100 grams or more, as the judge had

previously, but mistakenly, read. The court then re-polled the jury, which gave its assent. David

objected to the re-polling while Frederick, who now challenges the jury re-polling, simply asked

the court to clarify that defense counsel had not been present when the judge spoke with the jury

in the jury room.

       Frederick was ultimately sentenced to concurrent sentences of twenty-four years for

conspiracy to possess with intent to distribute heroin, twenty years for the remaining counts, and

five years of supervised release for conspiracy to possess with intent to distribute heroin and the

remaining counts. David was sentenced to concurrent sentences of seventy-four months in prison

and eight years of supervised release. Both Frederick and David appeal.

                                 II.     Frederick McShan’s Appeal

       Frederick makes two claims on appeal: that the district court lacked authority to re-poll

the jury regarding the verdict and that the district court abused its discretion by not severing his

trial from David’s.




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Nos. 17-3935/4075, United States v. David McShan, et al.


                                         A. Re-polling the Jury

       Frederick argues that the district court abused its discretion when it re-polled the jury after

discovering its mistake in announcing the jury’s verdict (reading 100 grams instead of 1000 grams

of heroin). We disagree.

       Federal Rule of Criminal Procedure 31(d) speaks to the polling of a criminal jury. It states:

       After a verdict is returned but before the jury is discharged, the court must on a
       party’s request, or may on its own, poll the jurors individually. If the poll reveals
       a lack of unanimity, the court may direct the jury to deliberate further or may
       declare a mistrial and discharge the jury.

       Although Frederick’s appellate brief asserts that the trial court violated this rule, he makes

no real argument to that effect. As we see it, the rule does not quite speak to the situation presented

here. Rule 31(d) surely governs when a court may or must poll the jury the first time; but we see

nothing in the rule that addresses when a judge may poll a jury a second time, to correct an error

in the first. Therefore, any authority the district court had must have come from its inherent

powers.

       The parties do not dispute that, generally speaking, federal district courts have the inherent

authority to re-poll a jury to correct an error in reading the verdict. See Dietz v. Bouldin, 136 S.

Ct. 1885, 1891–93 (2016). They do dispute whether the district court’s exercise of that power was

appropriate in this case.

       The common law rule was that once the judge discharged a jury, the jury could not be re-

called to amend its verdict. Dietz, 136 S. Ct. at 1897 (Thomas, J., dissenting) (describing the

common law rule). But, as Frederick acknowledges, it was “well-settled that a trial court merely

using the word ‘discharged’ d[id] not negate the court’s power to reconvene a jury.” Appellant

Frederick McShan Br. at 9 (citing United States v. Rojas, 617 F.3d 669 (2d Cir. 2010) and Summers

v. United States, 11 F.2d 583 (4th Cir. 1926)). As the rule was described in Summers:

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Nos. 17-3935/4075, United States v. David McShan, et al.


        [A jury] may remain undischarged and retain its functions, though discharge may
        have been spoken by the court, if, after such announcement, it remains an
        undispersed unit, within [the] control of the court, with no opportunity to mingle
        with or discuss the case with others, and particularly where, as here, the very case
        upon which it has been impaneled is still under discussion by the court, without the
        intervention of any other business.

Summers, 11 F.2d at 586.

        In Dietz, the Supreme Court rejected this test for civil cases, adopting instead a multi-

factored “inquiry focused on potential prejudice.” Dietz, 136 S. Ct. at 1896. But Dietz cautioned

that its “recognition . . . of a court’s inherent power to recall a jury is limited to civil cases only.

Given additional concerns in criminal cases, such as attachment of the double jeopardy bar, we do

not address here whether it would be appropriate to recall a jury after discharge in a criminal case.”

Id. at 1895. It is thus unclear whether Dietz meant to leave in place the common law rule in

criminal cases, or whether, absent double-jeopardy concerns,1 Dietz’s potential prejudice rule

should apply. Under either test, we have no difficulty concluding that there was no error here.

        In Rojas, the Second Circuit adopted the common law rule set forth in Summers. Rojas,

617 F.3d at 677 (quoting Summers, 11 F.2d at 586). Applying this rule, the court in Rojas found

it “significant” that, while the jury in that case “had technically been declared ‘discharged’ by the

court, it had not dispersed. The jurors were therefore not exposed to ‘outside factors,’ which might

‘render[] the reliability of any poll on recall problematic.’” Rojas, 617 F.3d at 678 (quoting United

States v. Marinari, 32 F.3d 1209, 1213 (7th Cir. 1994)). The court held that, under those




1
  Frederick makes no meaningful double jeopardy argument. Although he fleetingly asserts that
the trial court’s re-polling of the jury violated his right against double jeopardy, he does nothing
to develop the argument. He merely declares, without argument or citation, “that double jeopardy
does in fact attach and the defendant-appellant can only be subjected to the penalties which he
faced at the time of the original polling of the jury.” This will not do. Under this court’s caselaw,
“issues adverted to in a perfunctory manner, unaccompanied by some effort at developed
argumentation” are forfeited. United States v. Elder, 90 F.3d 1110, 1118 (6th Cir. 1996).
                                                  -5-
Nos. 17-3935/4075, United States v. David McShan, et al.


circumstances, the jury “‘retain[ed] its function[],’ and that it was proper to return it to the

courtroom for a re-reading of the verdict form and for a re-polling.” Rojas, 617 F.3d at 678

(internal citation omitted and alteration in original).

       This case is Rojas’s twin. In Rojas, a courtroom deputy, reading aloud the jury’s written

verdict, mistakenly omitted the word “base” and instead stated that the jury had found the

defendant guilty of a conspiracy involving distribution of “five grams or more of a mixture and

substance containing a detectable amount of cocaine.” Id. at 673. The jury was then polled,

discharged, and returned to the deliberation room to await the thanks of the court. Id. While the

jury waited, counsel alerted the judge to the mistake. Id. Over defense counsel’s objection, the

jurors were reassembled, provided with an explanation of the error, re-read the verdict form, and

re-polled. Id. The jurors gave their assent to the correct reading of the verdict. Id.

       The Second Circuit found no error:

       [N]otwithstanding the fact that the jury assented to the improperly read verdict form
       when polled for the first time, the initial misreading of the written verdict form in
       no way calls into doubt our conclusion that the actual verdict reached by the jury is
       reflected in the written form. Nor does the recitation error leave us with any
       uncertainty that the written verdict form reflects an uncoerced and unanimous jury
       verdict.

Id. at 677. We reach the same conclusion.

       As in Rojas, this case involves a misstatement of the verdict, caught after the judge

pronounced the jury “discharged” but before the jurors had left the deliberation room. The judge

explained, on the record, that the jurors “were taken directly from the courtroom to the adjoining

jury room.” The delay between discharge and recall—fourteen minutes here, six minutes in

Rojas—was brief. And there is no evidence that the jurors left the deliberation room or had the

opportunity to “mingle” with or speak to anyone, other than the judge, after being discharged.

Indeed, the judge explained at sidebar that the jurors “ha[d]n’t talked to anybody but [him].”

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Nos. 17-3935/4075, United States v. David McShan, et al.


        When the jury returned, it was not to deliberate anew, but merely to correct an error in the

court’s recitation of their written verdict. We have little trouble concluding that this jury

“remain[ed] an undispersed unit, within [the] control of the court.” Summers, 11 F.2d at 586.

Applying the common law rule, the district court did not err in recalling the jurors to correct an

inadvertent error in the recitation of the jury’s written verdict.

        The parties focus their attention on Dietz. Applying the factors found relevant in that case

leads to the same result. There is no evidence that “any juror [was] directly tainted.” Dietz, 136

S. Ct. at 1894. As mentioned above, only fourteen minutes separated “discharge and recall.”2 Id.

There is no evidence that the jurors “spoke[] to anyone about the case after the discharge,” other

than the judge. Id. Nor is there any indication of an emotional reaction to the verdict by the

defendants or those in the gallery; and the jurors here never made it to the “corridors” to witness

any other reaction. Id. Finally, nothing on the record reflects any access to “smartphones or the

internet.” Id. at 1895.

        Frederick suggests, however, that while at common law the court’s control was considered

the guardian against improper jury influence, here it might have been the problem. He implies,

without substantiation, that the district judge might have exerted influence over the jurors in an

effort to get them to change their verdict. The allegation is untenable. We draw once again on

Rojas. To believe, as Frederick would have us do, that during the first poll:

        the jury agreed with the [court’s] mistaken reading of the verdict, rather than the
        jury's written verdict, requires us to assume that the jurors unanimously changed
        their minds in a split second . . . . It is unreasonable to expect the jurors to have
        corrected the [court’s] misreading of their verdict and to conclude that by their
        failure to do so [they had] assented to the misread verdict.


2
  Although we do not know how long the jury had been discharged in Dietz (the court described
the interval as “a few minutes”), we suspect the interval was longer than here because in Dietz,
“one juror may have left the courthouse, apparently to retrieve a hotel receipt.” Dietz, 136 S. Ct.
at 1895.
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Nos. 17-3935/4075, United States v. David McShan, et al.



Rojas, 617 F.3d at 679 (last alteration in original) (quoting United States v. Boone, 951 F.2d 1526,

1532 (9th Cir. 1991)). “While it is true that a juror has a right, ‘when polled, to dissent from a

verdict to which he [or she] has agreed in the jury room,’ there is no suggestion that any one of the

jurors in fact dissented from the written verdict form.” Id. (internal citation omitted). But

Frederick would have us believe not only this, but that, having instantly and unanimously decided

to renounce their written verdict in the courtroom, the jurors again quickly, unanimously, and

without remark did a second about-face, in response to some unsubstantiated pressure or

information delivered in the jury room. The narrative strains credulity.

       We do not presume that a jury is tainted. See United States v. Pennell, 737 F.2d 521, 532

(6th Cir. 1984) (“[T]he burden of proof rests upon a defendant to demonstrate that unauthorized

communications with jurors resulted in actual juror partiality. Prejudice is not to be presumed.”).

See also Smith v. Phillips, 455 U.S. 209, 215–16 (1982). Much less will we casually assume that

the district judge supplied some unspecified taint. Nothing in Dietz changed that rule. See Dietz,

136 S. Ct. at 1895 (evaluating potential for prejudice based on the record of the proceedings).

Frederick’s counsel did not ask, when the jurors were re-polled, that they be questioned about any

communications or other outside influence in the jury room and nothing on the record supports the

claim. Under these circumstances, we have no grounds to find real or potential prejudice.

       Here a district judge misspoke when reading aloud what was clearly written on the jury

form. As the Supreme Court noted in Dietz, “[a]ll judges make mistakes.” Id. at 1896. This judge

made reasonable efforts to correct that mistake and Frederick can point to no prejudice therefrom.

We find no error in recalling the jury here, whether under the common law or under the test set

out in Dietz.




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Nos. 17-3935/4075, United States v. David McShan, et al.


                                      B. Denial of Motion to Sever

       Frederick next challenges the district court’s decision not to sever his trial from David’s.

“The decision to deny a motion for severance and separate trial rests within the wide discretion of

the district court and will not be reversed absent an abuse of discretion.” United States v. Long,

190 F.3d 471, 476 (6th Cir. 1999). The federal system generally favors joint trials for defendants

who are indicted together to promote efficiency and avoid “the scandal and inequity of inconsistent

verdicts.” Zafiro v. United States, 506 U.S. 534, 537 (1993). Defendants are not entitled to

severance simply because they might have a better chance at acquittal if tried separately. Id. at

540. Trials properly joined under Fed. R. Crim. P. 8(b), should be severed under Fed. R. Crim. P.

14 “only if there is a serious risk that a joint trial would compromise a specific trial right of one of

the defendants, or prevent the jury from making a reliable judgment about guilt or innocence.”

Zafiro, 506 U.S. at 539.

       Frederick’s treatment of this claim in his opening brief is so perfunctory that we might

consider it forfeited. See United States v. Johnson, 440 F.3d 832, 845–46 (6th Cir. 2006)

(explaining that an appellant forfeits “issues not raised and argued in its initial brief on appeal”

and “issues adverted to in a perfunctory manner, unaccompanied by some effort at developed

argumentation” (citations omitted)). After reciting the language of Fed. R. Crim. P. 8(b) and Fed.

R. Crim. P. 14(a), Frederick states only that, when the trial began, “counsel for co-defendant, David

McShan, immediately began to [sic] only logical defense on behalf of this client and that was

pointing the finger of guilt at [Frederick]. Once this defense was realized by [Frederick]’s trial

counsel, a motion to sever was made.” Frederick has failed to develop any meaningful argument,

let alone one that shows “compelling, specific, and actual prejudice from [the] court’s refusal to




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Nos. 17-3935/4075, United States v. David McShan, et al.


grant the motion to sever.” United States v. Driver, 535 F.3d 424, 427 (6th Cir. 2008) (alteration

in original) (quoting United States v. Saadey, 393 F.3d 669, 678 (6th Cir. 2005)).

       But even if this argument were not considered forfeited, it would fail on the merits. Before

voir dire, counsel for David and Frederick were “satisfied that no antagonistic approach would be

taken by [opposing] counsel.” According to his severance motion filed in the trial court, Frederick

realized during voir dire, that David was pursuing an antagonistic defense. Frederick complained,

in particular, that David’s having told the jury that David was in custody would cause the jury to

believe that Frederick, his allegedly more culpable coconspirator, was also in custody. This,

Frederick claimed, deprived him of due process and the presumption of innocence. Frederick also

argued that he was prejudiced by David’s counsel having made remarks that portrayed the

McShans as a crime family.

       But following voir dire, the district court instructed the jury that “the fact that [David] may

be in custody is not to be considered when you decide whether or not the government has proven

the case beyond a reasonable doubt . . . . And, likewise, the length of time has have [sic] no bearing

on how you decide this case. Instead, it will be from the facts presented at the trial.” When asked

whether he would like a further limiting instruction, Frederick’s counsel declined, on the ground

that “the limiting instruction that came after voir dire was satisfactory to the defense, and [he

would] prefer not to remind the jury about it again.”

       Later, although the district court acknowledged, early in the trial, that “a piece of the

defense . . . is antagonistic,” the court determined that it was not sufficiently so to warrant

severance. And when Frederick renewed this same motion at the close of evidence, he provided

no basis to establish that this joint trial subjected him to any legally cognizable prejudice. See

Zafiro, 506 U.S. at 541. The district court again instructed the jury before deliberation that the



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Nos. 17-3935/4075, United States v. David McShan, et al.


jurors were to “separately consider the evidence against each defendant,” and that their “decision

on any one defendant or any one charge . . . should not influence [their] decision on any other

defendant or any other charge . . . .” We conclude that the district court did not abuse its discretion

in denying Frederick’s motion to sever.

                                    III.    David McShan’s Appeal

       David argues that the prosecutor engaged in misconduct by making improper statements

in his opening remarks and improper “insinuations and assertions” calculated to mislead the jury.

He also argues that the district court erred when determining his seventy-four-month sentence.

                                     A. Prosecutorial Misconduct

       David first alleges prosecutorial misconduct. “Whether statements made by a prosecutor

amount to misconduct and whether such statements render a trial fundamentally unfair are mixed

questions of law and fact, which we review de novo.” United States v. Carson, 560 F.3d 566, 574

(6th Cir. 2009). Because David failed to object during trial to the prosecutor’s statements which

he now claims were improper, he “bears the burden of showing that [any] prosecutorial conduct

in the present case was so ‘exceptionally flagrant that it constitutes plain error.’” United States v.

Modena, 302 F.3d 626, 635 (6th Cir. 2002) (quoting United States v. Carter, 236 F.3d 777, 783

(6th Cir. 2001)). Therefore, he must establish that (1) an error occurred below; (2) the error was

obvious or clear; (3) the error affected his substantial rights; and (4) the error seriously affected

the fairness, integrity, or public reputation of the judicial proceeding. Modena, 302 F.3d at 630

(quoting United States v. Schulte, 264 F.3d 656, 660 (6th Cir. 2001)).

       When examining a claim of prosecutorial misconduct, we “view the conduct at issue within

the context of the trial as a whole.” United States v. Beverly, 369 F.3d 516, 543 (6th Cir. 2004).

We first determine whether the statements at issue were improper. Carson, 560 F.3d at 574. If



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we determine the statements were improper, we determine whether they were so flagrant as to

warrant reversal. Id. We consider four factors when determining whether a statement was flagrant:

“(1) whether the conduct and remarks of the prosecutor tended to mislead the jury or prejudice the

defendant; (2) whether the conduct or remarks were isolated or extensive; (3) whether the remarks

were deliberately or accidentally made; and (4) whether the evidence against the defendant was

strong.” Id. (quoting Carter, 236 F.3d at 783). We evaluate these four “flagrancy factors” to

determine prejudice. Id. (citing Carter, 236 F.3d at 784).

       The prosecutor’s opening statement.        David charges that the prosecutor’s opening

statement included a number of claims that exaggerated the evidence against David and were

“unsupported by direct evidence” or “even by inference.”         David challenges the following

statements:

       1. David’s “role in this conspiracy was to aid and assist Fred in the distribution of heroin,
          to carry drug money on behalf of the organization, and to help Fred McShan deal with
          the heroin supplier in Chicago, Illinois.”

       2. “[T]here were times when David McShan carried money up to Chicago to deal with
          Landon Jones . . . .”

       3. A “confidential informant [Demetrius Brandon] was purchasing heroin directly from
          Fred McShan, directly from David McShan, and directly from the other members of
          the organization.”

       4. “[I]t ended up being about 187 grams of heroin that law enforcement bought off Mr.
          McShan, David McShan, and the members of the organization.”

       5. “Twelve times Demetrius Brandon went and made hand-to-hand drug deals at the
          direction of law enforcement with Fred, David McShan, and other members of the
          organization. You’re going to hear the testimony from Mr. Brandon about that, hear
          the recorded phone calls, and see the audio and videos of those deals.”

As to these statements, we reject David’s claim of misconduct because the statements were

supported by the evidence presented at trial or were reasonable inferences drawn therefrom. See




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United States v. Cosgrove, 637 F.3d 646, 663–64 (6th Cir. 2011) (stating that “[a] prosecutor has

leeway to argue reasonable inferences from the evidence” (internal quotes omitted)).

       First, Demetrius Brandon, the confidential informant, testified regarding his interactions

with the McShan brothers and other members of their organization. He testified that he wore a

camera or “little audio keys” when going to purchase heroin from “Fred and company.” Audio

and video recordings of most of these transactions were played for the jury. The transactions,

some which were not recorded, included Brandon, Donae Grier (one of Frederick’s associates),

and the McShan brothers. Brandon testified that during one transaction, David handed him a small

bag of heroin, which was wrapped in a white handkerchief or paper towel, after which Frederick

accepted payment.

       Second, several investigators testified about the confidential informant’s heroin purchases

from the McShans. FBI Special Agent Drew McConaghy testified that a confidential informant

was able to make buys directly from David and Frederick. Michael White, of the DEA, testified

that between April and September of 2015, a confidential informant purchased approximately 187

grams of heroin from the McShan drug organization. And Matthew Beatty, a narcotics investigator

from the Brook County Sherriff’s Office, testified that “prerecorded money was given to [the

confidential informant] to purchase heroin off Fred McShan,” and this money was later found on

David and Frederick.

       Third, Landon Jones, a Chicago-based heroin supplier, testified about his interactions with

the McShans. Jones, who had grown up with David but had not known Frederick at the time,

testified that it was important to his decision to accept Frederick as a client that he knew David

and knew he was “a credible person”—“somebody that [he] didn’t have to worry about.” He

testified that he sold Frederick between 300–500 grams of heroin on approximately twelve



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occasions. Jones testified that he had met with both McShans in Ohio to recover a debt owed by

Frederick and that David had vouched for his brother. Another time, Jones testified that he had

delayed a planned drug sale to Frederick in Chicago because he was worried that Frederick might

be working with the police. Jones testified that David, who was with Frederick in Chicago,

expressed his dissatisfaction with the delay, complaining that Jones was causing the McShans to

“miss money.” In other words, Jones explained, the McShans had come to Chicago to buy heroin

to sell in Ohio and were upset that their plans had been thwarted. Taken as a whole, this evidence

amply supports the prosecutor’s statements, set forth above, regarding David’s role in the

conspiracy.

       David challenges one further statement made by the prosecutor in his opening remarks:

“[Y]ou’re going to have the eyewitness testimony of Mr. Brandon as to what happened during

those deals, and you’re going to have testimony from law enforcement officers who were actually

on surveillance and saw those deals during that time.”

       Although part of this statement was born out by the evidence presented at trial (Brandon

did testify “as to what happened during those deals,”) both Agent McConaghy and Detective Ellis

testified that they did not personally witness David engaging in a narcotics transaction that had

taken place on April 30, 2015,3 and no other testimony in the record suggests that the officers

personally witnessed David engaging in any other drug deal.

       But not every variance between a prosecutor’s description of the evidence during an

opening statement and the actual presentation of the evidence to the jury constitutes reversible

error. Frazier v. Cupp, 394 U.S. 731, 736 (1969). As the Supreme Court has cautioned, “[m]any




3
 A previous statement by Agent McConaghy that April 30 “was the first time we had seen David
participate in any type of sale of heroin” was stricken from the record.
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Nos. 17-3935/4075, United States v. David McShan, et al.


things might happen during the course of the trial which would prevent the presentation of all the

evidence described in advance.” Id. And here, the trial court gave multiple “proper limiting

instruction[s],” id., instructing the jury that the statements, questions and arguments of counsel

were not to be considered as evidence in the case. These instructions mitigated any harm that

might have flowed from the discrepancy between this remark in the opening statement and the

evidence presented at trial. See id.; United States v. Campbell, 317 F.3d 597, 607 (6th Cir. 2003);

United States v. Burns, 298 F.3d 523, 543 (6th Cir. 2002).

       But even if we were to consider any of the statements David challenges to be improper, we

could not find them “so exceptionally flagrant” as to constitute plain error. Modena, 302 F. 3d at

635. Indeed, David makes no real attempt to explain how the prosecutor’s conduct in this case

would rise to that level under this court’s caselaw, see Carter, 236 F.3d at 783 (setting forth four

factors used to guide the flagrancy inquiry), except to repeatedly assert that the case against him

was “extremely weak.” With this we disagree. There was testimony from Brandon, Jones, and

multiple investigators indicating that David was involved in the heroin transactions. Brandon

testified that David personally handed him heroin on at least one occasion. The prosecutor’s

remarks in his opening statement did not amount to misconduct, and the district court did not err,

plainly or otherwise.

       The prosecutor’s questions throughout the trial. David next argues that on “more than 20”

occasions, the prosecutor “elicited improper insinuations and assertions, either in witness’ answers

to his questions or contained in his questions” by implying that there was an abundance of evidence

of David’s involvement in the drug operation when, in David’s view, there was not.

       David first argues that the prosecutor and its witnesses misled the jurors when they

“constantly referred to the ‘McShan organization,’ implying it was both Fred and David McShan’s



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Nos. 17-3935/4075, United States v. David McShan, et al.


organization, without evidence of such an arrangement.” But much of David’s argument is

directed at statements made by witnesses, not the prosecutor. For example, David takes issue with

Agent McConaghy’s reference to the “McShan organization” in response to a question posed by

Frederick’s counsel on cross-examination. David also points to testimony of Detective Ellis,4 who

stated that David’s sale of heroin “links [the heroin] to the organization that Fred and David

McShan are working together.” We are unaware of any authority that would support a finding of

prosecutorial misconduct based on witness statements alone. See Lutze v. Sherry, 392 F. App’x

455, 461 (6th Cir. 2010) (“[W]e have independently found, no case where seemingly neutral

questions by a prosecutor have been found to constitute prosecutorial misconduct based on the

answers provided by a witness . . . .”). David does also criticize the prosecutor for referring to the

“McShan organization.” We are skeptical of any impropriety, but certain that such a reference

could not properly be characterized as “exceptionally flagrant” conduct constituting plain error.

See Modena, 302 F.3d at 635. And, as before, David does not meaningfully attempt to make that

case.

        David argues next that the prosecutor asked questions that “exaggerated the importance”

of Jones’s opinion of David’s honesty, thereby, “implying that this opinion was a key factor” in

Jones’s decision to sell drugs to Frederick. For example, he points to this exchange: The

prosecutor asked, “Was it important that you knew David before you went into business with

Fred?” Jones responded, “I mean, he was a credible person, his word, you know.” The prosecutor

then asked, “When you say he, you’ve got to be more specific” to which Jones responded, “Oh,

Dave’s word was credible. He was known as a credible person so, yeah, that meant something.”




4
  Although David’s brief references “Agent McConaghy,” the record citations refer to the
testimony of Detective Ellis.
                                                -16-
Nos. 17-3935/4075, United States v. David McShan, et al.


The prosecutor asked, “And what did it mean to you?” Jones answered, “I guess that he was, you

know, he was somebody that I didn’t have to worry about.” David does not cite any caselaw or

otherwise explain why this line of questioning amounted to prosecutorial misconduct, and he

registered no objection to that effect below. As stated above, we are unaware of caselaw from our

circuit or any other authority that supports a conclusion that eliciting testimony through neutral

questions constitutes prosecutorial misconduct. See Lutze, 392 F. App’x at 461.

          David also claims that the prosecutor asked “vague” questions regarding the significance

of events, which led to “blurted statements by law enforcement witness[es] which were not

supported by evidence.” He also asserts that the prosecutor’s colloquy with Agent McConaghy

was riddled with “improper insinuations and assertions.” David’s appellate briefing fails to

identify which questions he believes were impermissibly “vague,” but it does describe these

“[v]ague direct examination questions,” as “not in themselves improper.” That is sufficient to

answer the charge. And as before, most of David’s complaints of “vagueness” or “improper

insinuations” are directed toward the testimony of government witnesses, not at the questioning of

the prosecutor. That is insufficient to establish prosecutorial misconduct. See Lutze, 392 F. App’x

at 461.

          Finally, David challenges a statement made by the prosecutor at sentencing.          The

prosecutor stated that David’s possession of prerecorded money, together with Jones’s testimony,

indicated that both brothers were actively soliciting drugs from Jones; David claims there was “no

testimony to that effect.” Again, we disagree. First, Officer Beatty testified that he was aware of

a September 2015 traffic stop of David and Frederick, which resulted in the seizure of

approximately $23,000, $800 of which matched the prerecorded bills that were given to Brandon.

Second, Jones testified that David had complained that Jones was causing them to “miss money”



                                                -17-
Nos. 17-3935/4075, United States v. David McShan, et al.


because Frederick and David “didn’t have the product to serve their customers.” David has failed

to meet his burden to show prosecutorial misconduct.5

                              B. Sentence Based on Acquitted Conduct

       David’s final claim on appeal relates to his within-Guidelines sentence of seventy-four

months’ imprisonment. He argues that his sentence is procedurally unreasonable because, despite

being convicted by a jury of conspiracy to possess with the intent to distribute less than 100 grams

of heroin, the district court used 230 grams of heroin as relevant conduct to calculate his sentencing

range pursuant to U.S.S.G. § 1B1.3. As to the accuracy of the district court’s drug quantity

determination, we cannot conclude that the district court clearly erred when it determined that

David was responsible for 230 grams of heroin. See United States v. Henley, 360 F.3d 509, 514–

15 (6th Cir. 2004) (“The district court’s drug quantity determination ‘must stand unless it is clearly

erroneous’”) (quoting United States v. Ward, 69 F.3d 146, 149 (6th Cir. 1995)). The court

attributed to David the seven grams of heroin that he was convicted of distributing on April 30,

2015, which was supported by the testimony of the confidential informant. The district court then

converted the approximately $23,000 in cash seized from David and Frederick on a return trip

from Chicago into equivalent quantities of heroin, after finding that the two were traveling together

and had both met with the heroin supplier in Chicago. The district court concluded that “by a

preponderance, at least, this amount of money should be treated as relevant conduct.” This

determination was not clearly erroneous.




5
  David also alludes to “false testimony” that he believes Agent McConaghy gave before the grand
jury and at a bond hearing regarding whether an April 30 drug transaction had been recorded and
observed. But, even if this testimony was false, rather than simply mistaken, David concedes that
Agent McConaghy’s trial testimony was accurate, and the trial testimony on this point was
favorable to David.
                                                -18-
Nos. 17-3935/4075, United States v. David McShan, et al.


       David does not seriously contest the drug quantity calculation, instead arguing that the

Constitution forbade the district court from sentencing him based on acquitted conduct and thereby

depriving him of the “right to the presumption of innocence.” Binding precedent from our circuit

establishes the contrary. See United States v. White, 551 F.3d 381, 385 (6th Cir. 2008) (en banc)

(concluding that “the district court does not abridge the defendant’s right to a jury trial by looking

to other facts, including acquitted conduct, when selecting a sentence within that statutory range”).

See also United States v. Rayyan, 885 F.3d 436, 441 (6th Cir. 2018) (explaining that “the Supreme

Court has confirmed that sentencing courts may look to uncharged criminal conduct, indeed even

acquitted conduct, to enhance a sentence within the statutorily authorized range”).

       David acknowledges that precedent permits this result. He claims, however, that the

Supreme Court abrogated that rule in Nelson v. Colorado, 137 S. Ct. 1249 (2017). We disagree.

       In Nelson, the Supreme Court invalidated a Colorado statute that required a person whose

conviction had been overturned to prove her innocence by clear and convincing evidence in order

to receive a refund of costs, fees, and restitution paid pursuant to the invalid conviction. Id. at

1254–55. The Court determined that this statute violated due process and explained that “Colorado

may not presume a person, adjudged guilty of no crime, nonetheless guilty enough for monetary

executions.” Id. at 1255–56. But Nelson did not implicate the Guidelines. Nor did it overrule, or

even mention, prior Supreme Court precedent holding that courts can consider acquitted conduct

for sentencing purposes. See, e.g., United States v. Watts, 519 U.S. 148, 157 (1997) (“We therefore

hold that a jury’s verdict of acquittal does not prevent the sentencing court from considering

conduct underlying the acquitted charge, so long as that conduct has been proved by a

preponderance of the evidence.”). And David has made no argument that the Matthews v.

Eldridge, three-part balancing test, which the Court applied in Nelson, would balance out the same



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Nos. 17-3935/4075, United States v. David McShan, et al.


way in his case, even if that test applies.6 See Nelson, 137 S. Ct. at 1255. In short, Nelson is not

an “inconsistent decision of the United States Supreme Court” that would permit or require

modification of our controlling precedent. Salmi v. Sec'y of Health & Human Servs., 774 F.2d

685, 689 (6th Cir. 1985).

       This court’s decision in White held that a “district court does not abridge the defendant’s

right to a jury trial by looking to other facts, including acquitted conduct, when selecting a sentence

within that statutory range.” 551 F.3d at 385. David’s within-Guidelines sentence of seventy-four

months’ imprisonment was neither unconstitutional nor procedurally unreasonable.

                                                ***

       We AFFIRM the judgment of the district court in both cases.




6
  The Court in Nelson explained that its ruling in that case was governed by the “familiar
procedural due process inspection instructed by Mathews v. Eldridge,” which governs when “no
further criminal process is implicated.” Nelson, 137 S. Ct. at 1255. Here, David argues that his
criminal sentence—an integral part of the criminal process—is unconstitutional. One might argue,
therefore, that to the extent his claim sounds in due process, it should be evaluated under the test
set forth in Medina v. California, 505 U.S. 437 (1995), which Nelson reminds us “‘provide[s] the
appropriate framework for assessing the validity of state procedural rules’ that ‘are part of the
criminal process.’” Nelson, 137 S. Ct. at 1255 (alteration in original). Whether it matters that
David tests a federal, rather than state, criminal sentence remains an open question, see Kaley v.
United States, 571 U.S. 320, 334 (2014). But for present purposes, the result is the same. David
has made no argument under either Matthews or Medina.
                                                 -20-
