           RECOMMENDED FOR FULL-TEXT PUBLICATION
                Pursuant to Sixth Circuit Rule 206                      2    United States v. Forest et al.       Nos. 02-3022/3064
        ELECTRONIC CITATION: 2004 FED App. 0032P (6th Cir.)
                    File Name: 04a0032p.06                                                  _________________
                                                                                                 COUNSEL
UNITED STATES COURT OF APPEALS
                                                                        ARGUED: Tina Schneider, Portland, Maine, Joseph W.
                  FOR THE SIXTH CIRCUIT                                 Gardner, Canfield, Ohio, for Appellants. Samuel A.
                    _________________                                   Yannucci, ASSISTANT UNITED STATES ATTORNEY,
                                                                        Akron, Ohio, for Appellee. ON BRIEF: Tina Schneider,
 UNITED STATES OF AMERICA , X                                           Portland, Maine, Joseph W. Gardner, Canfield, Ohio, for
             Plaintiff-Appellee, -                                      Appellants. Samuel A. Yannucci, ASSISTANT UNITED
                                   -                                    STATES ATTORNEY, Akron, Ohio, for Appellee. Craig
                                   -   Nos. 02-3022/3064                Forest, Lisbon, Ohio, pro se, Herman Eugene Garner, Lisbon,
            v.                     -                                    Ohio, pro se.
                                    >
                                   ,                                                        _________________
 CRAIG FOREST (02-3022) and -
 HERMAN E. GARNER, III             -                                                            OPINION
 (02-3064),                        -                                                        _________________
        Defendants-Appellants. -
                                   -                                      RONALD LEE GILMAN, Circuit Judge. A federal jury
                                  N                                     found Craig Forest and Herman E. Garner, III guilty of
       Appeal from the United States District Court                     conspiring to distribute more than 500 grams of cocaine and
        for the Northern District of Ohio at Akron.                     of unlawfully possessing firearms. In addition, Forest was
    No. 01-00321—David D. Dowd, Jr., District Judge.                    convicted of possessing with the intent to distribute both
                                                                        powder cocaine and crack cocaine. Forest was sentenced to
                   Argued: December 5, 2003                             188 months in prison followed by 8 years of supervised
                                                                        release. Garner was sentenced to 120 months in prison
             Decided and Filed: January 27, 2004                        followed by 8 years of supervised release.

        Before: NORRIS and GILMAN, Circuit Judges;                        On appeal, Forest and Garner both contend that the
                 BUNNING, District Judge.*                              government violated their statutory and constitutional rights
                                                                        by intercepting cellular phone data that revealed their general
                                                                        location while they were traveling on public highways.
                                                                        Forest, moreover, individually argues that government agents
                                                                        violated his Fourth Amendment right not to be arrested
                                                                        without probable cause, and that the jury-selection procedures
                                                                        in the Northern District of Ohio violated his Sixth
                                                                        Amendment right to a jury drawn from a fair cross-section of
    *
     The Honorable David L. Bunning, United States District Judge for   the community. Garner individually contends that the district
the Eastern District of Kentucky, sitting by designation.

                                 1
Nos. 02-3022/3064          United States v. Forest et al.    3    4    United States v. Forest et al.       Nos. 02-3022/3064

court abused its discretion by refusing to allow him to           the authorization to intercept communications over Garner’s
introduce an allegedly exculpatory statement by his               cellular phone and also authorized the government to do the
codefendant Forest, erred in ruling that the government had       same over Forest’s cellular phone. The orders further
given him adequate notice of its intent to seek a sentence        required Sprint Spectrum L.P. (Sprint), the defendants’
enhancement based upon his prior felony drug conviction, and      cellular service provider, to disclose to the government all
erred at sentencing by finding him responsible for at least two   subscriber information, toll records, and other information
kilograms of cocaine. For the reasons set forth below, we         relevant to the government’s investigation.
AFFIRM the convictions and sentences of both defendants.
                                                                    Wire communications intercepted by the DEA between
                    I. BACKGROUND                                 May 8 and May 30 of 2001 indicated that Forest and Garner
                                                                  were expecting the imminent arrival of a large shipment of
   This appeal involves numerous issues that turn on their own    cocaine.     DEA agents therefore conducted physical
distinct set of facts. A more detailed factual discussion is      surveillance of both defendants on May 31, 2001. The agents,
therefore included under each heading in Part II below.           however, were unable to maintain constant visual contact.
Generally, however, Forest and Garner were part of a large
drug trafficking operation in the area of Youngstown/Warren,        In order to reestablish visual contact, a DEA agent dialed
Ohio. In March of 2001, agents of the Drug Enforcement            Garner’s cellular phone (without allowing it to ring) several
Administration (DEA) obtained court authorization to begin        times that day and used Sprint’s computer data to determine
intercepting the defendants’ cellular phone conversations.        which cellular transmission towers were being “hit” by
These interceptions culminated with the DEA agents arresting      Garner’s phone. This “cell-site data” revealed the general
the defendants on June 1, 2001 at a gas station, along with       location of Garner. From this data, DEA agents determined
two women couriers who had transported cocaine from               that Garner had traveled to the Cleveland area and then
California to Ohio. The two women pled guilty to conspiring       returned to the area of Youngstown/Warren.
to distribute cocaine. Forest and Garner went to trial. On
November 2, 2001, Forest and Garner were found guilty on            DEA agents resumed visual surveillance in Warren and
the various counts of conspiracy, drug possession, and            observed the defendants driving in Garner’s car along with
firearms possession. Both filed timely notices of appeal.         two females. The agents followed the car to the area of
                                                                  Austintown, Ohio and then again lost visual contact. This
                      II. ANALYSIS                                caused a DEA agent to once again activate Garner’s cellular
                                                                  phone to determine that Garner was back in the area of
A. Title III                                                      Warren. Visual surveillance resumed when DEA agents
                                                                  spotted Garner’s vehicle at a hotel in Niles, Ohio. The agents,
   The DEA identified Forest and Garner as active cocaine         acting without an arrest warrant, apprehended Forest, Garner,
traffickers in the area of Youngstown/Warren, Ohio. On            and the two females at a gas station the following day, June 1,
March 12, 2001, the DEA obtained district court authorization     2001.
to intercept communications over Garner’s cellular phone.
The intercepted conversations, according to the DEA,                Garner contends that the DEA’s use of cell-site data
demonstrated that Forest and Garner were jointly involved in      effectively turned his cellular phone into a tracking device,
drug trafficking. On May 1, 2001, the district court renewed      violating his rights under both Title III of the Omnibus Crime
Nos. 02-3022/3064          United States v. Forest et al.      5    6      United States v. Forest et al.        Nos. 02-3022/3064

Control and Safe Streets Act of 1968 (Title III), 18 U.S.C.             origin and the point of reception . . . furnished or
§§ 2510-2522, and the Fourth Amendment to the United                    operated by any person engaged in providing or
States Constitution. The cell-site data and resulting evidence,         operating such facilities for the transmission of interstate
Garner claims, should therefore have been suppressed.                   or foreign communications or communications affecting
                                                                        interstate or foreign commerce;
  Forest joins in Garner’s claims under Title III and the
Fourth Amendment. As the government points out, however,                (2) “oral communication” means any oral
Forest lacks standing to raise these issues. Forest is not an           communication uttered by a person exhibiting an
“aggrieved person” with standing under Title III because the            expectation that such communication is not subject to
DEA intercepted cell-site data only from Garner’s cellular              interception under circumstances justifying such
phone. See 18 U.S.C. § 2518(10)(a) (noting that only an                 expectation, but such term does not include any
“aggrieved person” may move to suppress illegally                       electronic communication; . . .
intercepted communication); 18 U.S.C. § 2510(11)
(“‘[A]ggrieved person’ means a person who was a party to                (12) “electronic communication” means any transfer of
any intercepted . . . electronic communication.”). Forest               signs, signals, writing, images, sounds, data, or
simply accompanied the party (Garner) whose cell-site data              intelligence of any nature transmitted in whole or in part
was being intercepted.                                                  by a wire, radio, electromagnetic, photoelectronic or
                                                                        photooptical system that affects interstate or foreign
   He also has no standing to assert the constitutional rights of       commerce, but does not include—
Garner. Forest may challenge only government conduct that                 (A) any wire or oral communication; . . .
violated his legitimate expectation of privacy. United States             (C) any communication from a tracking device (as
v. Payner, 447 U.S. 727, 732 (1980) (holding that the                     defined in section 3117 of this title) . . . .
defendant had no legitimate expectation of privacy in
financial documents obtained from a bank official’s                 18 U.S.C. § 2510.
briefcase). Because Forest does not claim any legitimate
expectation of privacy in the cell-site data from Garner’s             The district court concluded that Garner’s cell-site data was
cellular phone, he lacks standing to challenge the DEA’s            transmitted as part of an electronic communication, rather
actions on Fourth Amendment grounds. We therefore will              than as a wire or oral communication. We review a district
consider only Garner’s claims under Title III and the Fourth        court’s legal conclusions regarding suppression issues de
Amendment.                                                          novo and will sustain its related factual findings unless clearly
                                                                    erroneous. United States v. Murdock, 63 F.3d 1391, 1393
  Title III deals with the interception of three types of           (6th Cir. 1995).         As between the three types of
communication: wire, oral, and electronic. The statute              communication covered by Title III, the district court’s
specifically defines each of these types:                           conclusion strikes us as correct. Cell-site data is not part of
                                                                    an “aural transfer” or “oral communication.” See 18 U.S.C.
  (1) “wire communication” means any aural transfer made            §§ 2510(1) (defining wire communication) and (2) (defining
  in whole or in part through the use of facilities for the         oral communication). Instead, cell-site data is transmitted
  transmission of communications by the aid of wire,                through a “transfer of . . . data,” which arguably falls within
  cable, or other like connection between the point of
Nos. 02-3022/3064            United States v. Forest et al.       7    8     United States v. Forest et al.         Nos. 02-3022/3064

the definition of electronic communication. See 18 U.S.C.              expressly states that “[t]he remedies and sanctions described
§ 2510(12).                                                            in this chapter with respect to the interception of electronic
                                                                       communications are the only judicial remedies and sanctions
   A strong argument exists, however, that cell-site data is not       for nonconstitutional violations of this chapter involving such
a form of communication at all. Communication is defined as            communications.” 18 U.S.C. § 2518(10)(c). Suppression,
“a verbal or written message,” or “a process by which                  therefore, is not a permissible statutory remedy under Title III
information is exchanged between individuals through a                 for the illegal interception of an electronic communication.
common system of symbols, signs, or behavior.” Merriam-                See Meriwether, 917 F.2d at 960 (“[Title III] does not provide
Webster’s Collegiate Dictionary 233 (10th ed. 1997). Cell-             an independent statutory remedy of suppression for
site data is not a “message,” nor is it “exchanged between             interceptions of electronic communications.”).
individuals,” but instead is simply data sent from a cellular
phone tower to the cellular provider’s computers. In contrast,           Garner also contends that the DEA’s use of his cell-site
this court has assumed that a phone number transmitted to a            data effectively turned his cellular phone into a “tracking
pager constitutes an electronic communication. See United              device” within the meaning of 18 U.S.C. § 3117(a). This
States v. Meriwether, 917 F.2d 955, 960 (6th Cir. 1990).               subsection provides that “[i]f a court is empowered to issue a
Unlike cell-site data, a phone number sent via a pager is a            warrant or other order for the installation of a mobile tracking
“message” that is “exchanged between individuals.”                     device, such order may authorize the use of that device within
                                                                       the jurisdiction of the court, and outside that jurisdiction if the
   But we do not have to decide this issue. Cell-site data             device is installed in that jurisdiction.” Section 3117(b)
clearly does not fall within the definitions of wire or oral           defines a “tracking device” as “an electronic or mechanical
communication; the only possible Title III category is                 device which permits the tracking of the movement of a
electronic communication. If cell-site data is not an                  person or object.”
electronic communication, then Title III does not apply at all
and Garner cannot invoke its suppression remedy. And even                We would first note that Garner’s argument that the DEA
if cell-site data is deemed to fall under the definition of            used his cell phone as a tracking device undermines his
electronic communication, then suppression is still not an             contention that suppression is appropriate under Title III. The
available remedy, as the next paragraph explains. Thus,                definition of “electronic communication” in Title III excludes
whether or not cell-site data fits the definition, the result is the   “any communication from a tracking device (as defined in
same: Title III does not give Garner a suppression remedy.             section 3117 of this title).” 18 U.S.C. § 2510(12)(C). But
We will therefore assume without deciding that cell-site data          electronic communication is the only type of communication
fits within the definition of electronic communication.                covered in Title III that even arguably applies to Garner’s
                                                                       cell-site data.     Therefore, if the cell-site data is a
  Title III allows “[a]ny aggrieved person” to “move to                “communication from a tracking device,” as Garner argues,
suppress the contents of any [illegally intercepted] wire or           then a suppression remedy is clearly not authorized by
oral communication.” 18 U.S.C. § 2518(10)(a) (emphasis                 Title III.
added). The remedies for the illegal interception of an
electronic communication, in contrast, are criminal penalties             Assuming, moreover, that Garner is correct in his assertion
and, in some cases, being subjected to a civil suit by the             that his phone was used as a tracking device, at least one
federal government. 18 U.S.C. § 2511. Title III also                   circuit has held that § 3117 does not provide a suppression
Nos. 02-3022/3064          United States v. Forest et al.    9    10   United States v. Forest et al.      Nos. 02-3022/3064

remedy. See United States v. Gbemisola, 225 F.3d 753, 758         the driver “began making evasive maneuvers.” Id. at 278.
(D.C. Cir. 2000), where the court observed that, in contrast to   But the beeper’s signal allowed the police to reestablish
other statutes governing electronic surveillance, § 3117 “does    visual contact and eventually locate the container inside a
not prohibit the use of a tracking device in the absence of       cabin. The Supreme Court held that the police had not
conformity with the section. . . . Nor does it bar the use of     invaded the defendants’ legitimate expectation of privacy
evidence acquired without a section 3117 order.” (Emphasis        because “[t]he governmental surveillance conducted by means
in original.) We find Gbemisola to be persuasive and              of the beeper in this case amounted principally to the
likewise conclude that § 3117 does not provide a basis for        following of an automobile on public streets and
suppressing Garner’s cell-site data or any other evidence in      highways. . . . A person travelling in an automobile on public
the present case.                                                 thoroughfares has no reasonable expectation of privacy in his
                                                                  movements from one place to another.” Id. at 281.
B. Fourth Amendment
                                                                    In the present case, Garner acknowledges that the cell-site
   In addition to his statutory contentions, Garner argues that   data was used to track his movements only on public
the cell-site data and all resulting evidence should be           highways. The rationale of Knotts therefore compels the
suppressed under the Supreme Court’s Fourth Amendment             conclusion that Garner had no legitimate expectation of
exclusionary rule. The Fourth Amendment protects “[t]he           privacy in the cell-site data because the DEA agents could
right of the people to be secure in their persons, houses,        have obtained the same information by following Garner’s
papers, and effects, against unreasonable searches and            car. See Knotts, 460 U.S. at 281-82 (emphasizing that the
seizures. . . .” In analyzing any Fourth Amendment issue, the     defendants had no legitimate expectation of privacy because
threshold question is whether there has been either a “search”    the police could have tracked the defendants’ movements by
or a “seizure.” The Supreme Court has explained that “a           driving behind them on the public roads).
Fourth Amendment search occurs when the government
violates a subjective expectation of privacy that society           Garner, however, contends that the present case is
recognizes as reasonable.” Kyllo v. United States, 533 U.S.       distinguishable from Knotts because the cell-site data
27, 33 (2001). This court has used slightly different             provided information that the DEA agents could not have
terminology, referring to a Fourth Amendment search as an         obtained simply by following his car. He points out that the
invasion of a “legitimate expectation of privacy.” See United     DEA twice lost visual contact on May 31, 2001 and had to
States v. Meriwether, 917 F.2d 955, 958 (6th Cir. 1990).          resort to the cell-site data in order to locate him. But these
                                                                  facts are nearly identical to the facts in Knotts, where the
  In United States v. Knotts, 460 U.S. 276 (1983), the            police lost visual contact after the suspects engaged in
Supreme Court considered whether the police invaded the           “evasive maneuvers.” 460 U.S. at 278. The Supreme Court
defendants’ legitimate expectation of privacy by monitoring       in Knotts recognized that “the beeper enabled the law
the signal emitted from a beeper (a radio transmitter) placed     enforcement officials . . . to ascertain the ultimate resting
in a container of chemicals by the government. The                place of the [chemicals] when they would not have been able
defendants had placed the container in a car, and the signal      to do so had they relied solely on their naked eyes.” Id. at
emitted from the beeper allowed the police to track the           285. But the Court held that “[n]othing in the Fourth
movements of the car along public roads. At one point during      Amendment prohibited the police from augmenting the
the tracking, the police lost visual contact with the car after   sensory faculties bestowed upon them at birth with such
Nos. 02-3022/3064           United States v. Forest et al.     11    12   United States v. Forest et al.       Nos. 02-3022/3064

enhancement as science and technology afforded them in this          C. Warrantless arrest
case.” Id. at 282. This holding defeats Garner’s argument.
Although the DEA agents were not able to maintain visual               Forest contends that the DEA agents violated his Fourth
contact with Garner’s car at all times, visual observation was       Amendment rights by arresting him without probable cause,
possible by any member of the public. The DEA simply used            and that his post-arrest statements and conduct therefore
the cell-site data to “augment[] the sensory faculties bestowed      should be suppressed as the fruit of an illegal arrest. We
upon them at birth,” which is permissible under Knotts.              review a district court’s determination of probable cause de
                                                                     novo and will sustain the findings of fact underlying the
  Garner also attempts to distinguish Knotts by arguing that,        probable-cause determination unless clearly erroneous.
regardless of whether he had a legitimate expectation of             United States v. Fullerton, 187 F.3d 587, 589-90 (6th
privacy regarding his location, he had a legitimate expectation      Cir.1999).
of privacy in the cell-site data itself. He points out that in
Knotts the government owned the beeper and therefore the                The Fourth Amendment allows warrantless arrests of a
signal it sent out, as opposed to the present case where the         person in a public place so long as the arresting officer has
government had no ownership interest in Garner’s phone or            probable cause to believe that the person has committed or is
data. Furthermore, he notes that his contract with Sprint does       committing a crime. United States v. Watson, 423 U.S. 411,
not authorize the disclosure of his cell-site data. Garner also      414-15 (1976). Probable cause means that, at the moment of
persuasively distinguishes the present case from Smith v.            the arrest, “the facts and circumstances within [the officer’s]
Maryland, 442 U.S. 735, 745 (1979), where the Supreme                knowledge and of which [the officer] had reasonably
Court held that a defendant had no legitimate expectation of         trustworthy information were sufficient to warrant a prudent
privacy in the numbers he dialed when using his phone.               man in believing that the [suspect] had committed or was
Unlike the defendant in Smith, Garner points out that that “he       committing an offense.” Donovan v. Thames, 105 F.3d 291,
did not voluntarily convey his cell site data to anyone. In          298 (6th Cir. 1997).
fact, he did not use his telephone. The agent dialed Garner’s
phone number and the dialing caused Garner’s phone to send             At the time they arrested Forest and the others, the DEA
out signals.” (Emphasis in original.)                                agents were aware that:

   Although Garner’s argument on this point might have merit                 (1) Coleman Pless was a major trafficker of cocaine
in other contexts, the distinction between the cell-site data and    in the area of Youngstown/Warren, Ohio;
Garner’s location is not legally significant under the particular
facts of this case. Here, the cell-site data is simply a proxy for          (2) Pless received his cocaine from Acie Cole in
Garner’s visually observable location. But as previously             Southern California;
noted, Garner had no legitimate expectation of privacy in his
movements along public highways. We believe, therefore,                     (3) Cole transported his cocaine to Ohio using female
that the Supreme Court’s decision in Knotts is controlling,          couriers who carried the drugs on board airplanes;
and conclude that the DEA agents did not conduct a search                  (4) Forest and Pless had daily telephone contact
within the meaning of the Fourth Amendment when they                 sometime before the summer of 2000;
obtained Garner’s cell-site data.
Nos. 02-3022/3064          United States v. Forest et al.    13    14   United States v. Forest et al.        Nos. 02-3022/3064

       (5) Garner was also a trafficker of cocaine in the                  (15) Later that day Forest and Garner purchased a
Youngstown/Warren area, and had sold cocaine to a DEA              digital scale from an office supply store;
informant;
                                                                          (16) At 7:51 p.m. on June 1, 2001, Garner had a
        (6) Forest and Garner had frequent telephone contact       phone conversation with Jeffrey Davis, who was attempting
in the fall of 2000;                                               to buy cocaine from Forest and Garner for a third party;
                                                                   during the conversation Garner told Davis that the cocaine
       (7) Forest made telephone calls to a Southern               would be gone if Davis did not purchase it by the next day.
California area code that were similar to calls made by Pless,
suggesting that Cole was supplying Forest with cocaine;              All of this information was known to the DEA when the
                                                                   agents arrested Forest and the others at a gas station later
        (8) Forest had supplied Garner with cocaine in the         during the night of June 1. We find no error in the district
past;                                                              court’s conclusion that this information was sufficient to lead
                                                                   a prudent person to believe that Forest was in the process of
       (9) Phone conversations involving both Forest and           committing a crime at the time of his arrest. Because the
Garner during the last week of May of 2001 suggested that a        DEA agents had probable cause to arrest Forest, the district
shipment of cocaine to Forest was imminent;                        court properly denied his motion to suppress the evidence
                                                                   obtained as the result of his warrantless arrest.
        (10) On May 31, 2001, Garner had a phone
conversation with a potential drug buyer and told the buyer to     D. Jury drawn from a fair cross-section of the community
get his money ready;
                                                                      Court is held at three locations in the Eastern Division of
        (11) Later that day, Forest and Garner drove together      the Northern District of Ohio: Akron, Cleveland, and
to the Cleveland Hopkins airport;                                  Youngstown. This case was heard in Akron. Criminal cases
                                                                   are randomly assigned to judges in the district, and the
       (12) After Forest’s and Garner’s trip to the airport,       location of the judge determines the pool from which jurors
they drove to a hotel in Niles, Ohio along with two female         are selected. Forest contends on appeal, as he did in the
passengers;                                                        district court, that he was deprived of his Sixth Amendment
                                                                   right to a venire drawn from a fair cross-section of the
        (13) Garner left the hotel and was stopped by a police     community because African-Americans are systematically
officer for speeding; the officer used a police dog to sniff the   underrepresented in the pool of potential jurors who serve in
vehicle; although the dog alerted to the presence of narcotics,    Akron. “Whether a defendant has been denied his right to a
a subsequent search of the car found no drugs;                     jury selected from a fair cross-section of the community is a
        (14) On June 1, 2001, DEA agents learned that one of       mixed question of law and fact, which we review de novo.”
the women staying at the hotel lived in Southern California in     United States v. Allen, 160 F.3d 1096, 1101 (6th Cir. 1998).
the vicinity of Cole, the drug trafficker who supplied cocaine       The Sixth Amendment guarantees “the right to a speedy
to Forest;                                                         and public trial, by an impartial jury of the State and district
                                                                   wherein the crime shall have been committed.” This right to
Nos. 02-3022/3064          United States v. Forest et al.   15    16   United States v. Forest et al.       Nos. 02-3022/3064

an impartial jury includes the right to a jury drawn from a       relation to the number of [African-Americans eligible for jury
“fair cross section of the community.” Taylor v. Louisiana,       service] in the community.” In the context of jury selection,
419 U.S. 522, 526 & 530 (1975). As the Supreme Court has          one way to evaluate the fairness of representation is by
emphasized, however, there is “no requirement that petit          calculating “absolute disparity,” which refers to “the
juries actually chosen must mirror the community.” Id. at         difference between the percentage of a certain population
538 (emphasis added). “Defendants are not entitled to a jury      group eligible for jury duty and the percentage of that group
of any particular composition, . . . but the jury wheels, pools   who actually appear in the venire.” United States v. Greene,
of names, panels or venires from which juries are drawn must      971 F. Supp. 1117, 1128 n.11 (E.D. Mich. 1997).
not systematically exclude distinctive groups in the
community and thereby fail to be reasonably representative           In the present case, Forest suggests two possible measures
thereof.” Id. (citations omitted).                                of absolute disparity. The first measure compares the
                                                                  percentage of African-Americans in the Eastern Division
  In order to establish a prima facie violation of the fair-      (13.7 percent) with the percentage who live in the counties
cross-section requirement, a criminal defendant must show:        that provide juries for the Akron court (8 percent), which
                                                                  produces an absolute disparity of 5.7 percent (13.7 - 8 = 5.7).
  (1) that the group alleged to be excluded is a distinctive      A second way to measure the absolute disparity is to compare
  group in the community;                                         the percentage of African-Americans in the Eastern Division
                                                                  (13.7 percent) with the percentage on the venire (6.5 percent),
  (2) that the representation of this group in venires from       which demonstrates an absolute disparity of 7.2 percent (13.7
  which juries are selected is not fair and reasonable in         - 6.5 = 7.2).
  relation to the number of such persons in the community;
  and                                                               Neither measure can establish a constitutional violation,
                                                                  however, because both rely on the total percentage of African-
  (3) that under-representation is due to a systematic            Americans in the Eastern Division, rather than on the
  exclusion of the group in the jury selection process.           percentage who are eligible to serve on juries. Cases from
                                                                  both the Supreme Court and this court demonstrate that, when
Duren v. Missouri, 439 U.S. 357, 364 (1979).                      measuring absolute disparity, the appropriate comparison is
                                                                  between the percentage of group members who are eligible
  Forest claims that African-Americans are systematically         for jury service in the population as a whole and in the jury
excluded from Akron juries. The Supreme Court has                 pool. See, e.g., Taylor v. Louisiana, 419 U.S. at 524
recognized that African-Americans are a distinctive group in      (comparing the percentage of women eligible for jury service
the community. Lockhart v. McCree, 476 U.S. 162, 175              in the community with the percentage of women in an
(1986) (citing African-Americans as an example of a               average venire); Duren v. Missouri, 439 U.S. at 362-63
distinctive group in the community). Forest can thus              (comparing the percentage of adult women in the community
establish the first of the Duren factors.                         with the percentage of women in an average venire); Ford v.
  This brings us to the second Duren factor, focusing on          Seabold, 841 F.2d 677, 683 (6th Cir. 1988) (comparing the
whether Forest has demonstrated that the representation of        percentage of women 18 years or older in the community with
African-Americans on venires is not “fair and reasonable in       the percentage of women in the jury pool). In the present
                                                                  case, Forest has presented no evidence regarding the
Nos. 02-3022/3064          United States v. Forest et al.   17    18   United States v. Forest et al.      Nos. 02-3022/3064

percentage of African Americans in the Eastern Division who       of cocaine to codefendant Jeffrey Davis. But the statement
are eligible for jury service. His statistics that provide        recites that the couriers delivered three kilograms of cocaine
nothing more than the total African-American population of        from California on May 31, 2001. Garner, then, was clearly
the Eastern Division are therefore insufficient to establish a    capable of delivering more than one kilogram of cocaine by
prima facie case of a Sixth Amendment violation.                  collaborating with Forest. So this portion of Forest’s
                                                                  statement is not exculpatory of Garner and therefore not
E. Admission and use of Forest’s post-arrest statement            admissible under Rule 804(b)(3).
   After his arrest, Forest provided a written statement to the      Garner also contends that the statement demonstrates that
DEA. Garner moved the district court, pursuant to Rule            he was unaware of the purpose of the trip to Cleveland, where
804(b)(3) of the Federal Rules of Evidence, to allow him to       Forest and Garner picked up the female drug couriers from
either introduce Forest’s statement into evidence or to use the   California, and that there was no agreement between Forest
statement to cross-examine a DEA agent who testified at trial.    and Garner to distribute the drugs delivered by the California
We apply the “abuse of discretion” standard to a district         women. In his statement, Forest said: “A few days prior to
court’s evidentiary rulings. Trepel v. Roadway Express, Inc.,     5/31/01 I told [Garner] that something was going to happen.
194 F.3d 708, 716 (6th Cir.1999).                                 On 5/31/01 I told [Garner] I had to go to Cleveland and he
                                                                  asked me if I was going by myself or if I needed someone to
   Rule 804(b)(3) is an exception to the hearsay rule, allowing   go with me. I told him I didn’t care. He told me he would
the admission of statements that are contrary to the              ride. We then went to his car and left for Cleveland to pick
declarant’s interests at the time they are made. In the context   the girls up.” Forest also states that he was the one who
of confessions, Rule 804(b)(3) allows a defendant to              purchased the digital scale, and that he alone weighed and
introduce statements that exculpate the defendant by              repackaged the cocaine. In sum, these portions of Forest’s
inculpating the person who made the statement. United             statement can be viewed as exculpating Garner by implying
States v. McCleskey, 228 F.3d 640, 644 (6th Cir. 2000). If        that Forest alone (1) knew the purpose of the trip to
some parts of a statement are self-inculpatory and other parts    Cleveland, (2) was responsible for purchasing the scale, and
are not, a district court may admit only the self-inculpatory     (3) weighed and repackaged the cocaine without Garner’s
portions. United States v. Price, 134 F.3d 340, 346-47 (6th       knowledge. Because these assertions tend to prove that
Cir. 1998) (holding that the district court should have           Garner was not involved in the conspiracy to distribute
redacted the non-self-inculpatory portions of a statement).       cocaine, the threshhold requirement of Rule 804(b)(3) was
Rule 804(b)(3) also states that confessions of a third party      satisfied.
offered to exculpate the defendant are “not admissible unless
corroborating circumstances clearly indicate the                     This brings us to the question of whether “corroborating
trustworthiness of the statement.”                                circumstances clearly indicate the trustworthiness of the
                                                                  statement.” Fed. R. Evid. 804(b)(3). Although Garner
  In the present case, the district court refused to admit        contends that “the statement was corroborated by the
Forest’s statement because “the Forest statement really           interlocking post arrest statements and the trial testimony of
contains nothing specific which would serve to exculpate          the California women,” he provides no citations to the record
Garner.” Garner disagrees. He first argues that the statement     in support of this argument. The women’s statements and
demonstrates that he was not capable of delivering a kilogram     testimony, moreover, do not corroborate Forest’s statement
Nos. 02-3022/3064          United States v. Forest et al.    19    20    United States v. Forest et al.        Nos. 02-3022/3064

because the women were not present (1) for any discussions           others in furtherance of the jointly undertaken criminal
between Forest and Garner regarding the trip to Cleveland,           activity . . . .
(2) when Forest and Garner purchased the scale at the office
supply store, or (3) when Forest weighed and repackaged the        Sentencing Guidelines § 1B1.3(a)(1). In the present case, the
cocaine.        Forest’s statement therefore lacks any             district court found that “at least 2 kilograms but less than 3.5
“corroborating circumstances clearly indicating the                kilograms of cocaine is properly attributed to Garner’s
trustworthiness of the statement,” especially in light of the      personal and jointly undertaken criminal activity.” The
evidence recited in Part II.F. below regarding Garner’s            district court relied on the following evidence in reaching this
involvement in the conspiracy. We thus cannot say that the         conclusion:
district court abused its discretion by refusing to allow Garner
to either introduce the statement into evidence or to use it to           (1) Intercepted cell phone conversations revealed that
cross-examine a DEA agent.                                         Garner was involved in drug trafficking along with Forest;

F. Amount of cocaine attributed to Garner for                              (2) Garner’s conversations demonstrated that he acted
   sentencing purposes                                             as a broker between Forest and potential customers in one-
                                                                   kilogram cocaine transactions;
  Garner also claims that the district court erred during
sentencing when it found that between 2 and 3.5 kilograms of            (3) In mid-May of 2001, a DEA informant ordered
cocaine were attributable to Garner’s criminal conduct. He         two kilograms of cocaine from Garner, who then
contends that the district court should have attributed to him     communicated the order to Forest;
an indeterminate amount of cocaine, which would have
reduced his offense level from 28 to 12.                                  (4) On May 31, 2001, DEA agents observed Forest
                                                                   and Garner together for most of the day. Later that day Forest
   A district court’s calculation of the amount of drugs           and Garner drove (in Garner’s car) to pick up the drug
attributed to a defendant must be supported by a                   couriers in Cleveland and transport them back to the
preponderance of the evidence. United States v. Meacham, 27        Youngstown/Warren area;
F.3d 214, 216 (6th Cir. 1994). We review the district court’s
calculation under the “clearly erroneous” standard. United                (5) The couriers testified that they had brought four
States v. Walton, 908 F.2d 1289, 1300-01 (6th Cir. 1990).          packages to Ohio: two kilogram-sized packages and two
                                                                   smaller ones;
  Pursuant to the United States Sentencing Guidelines, a
defendant is liable for:                                                  (6) On June 1, 2001, Garner met with Forest and the
                                                                   couriers, then accompanied Forest to an office-supply store,
  (A) all acts or omissions committed, aided, abetted,             where Forest purchased a digital scale;
  counseled, commanded, induced, procured or willfully
  caused by the defendant; and                                            (7) At approximately 7:51 p.m. on June 1, 2001,
                                                                   Garner told Jeffrey Davis that the cocaine would be gone
  (B) in the case of a jointly undertaken criminal activity        soon and that any deal would have to be consummated the
  . . . , all reasonably foreseeable acts and omissions of         next day.
Nos. 02-3022/3064           United States v. Forest et al.     21    22   United States v. Forest et al.        Nos. 02-3022/3064

  The above evidence, recited by the district court in its           accordance with Title 21, United States Code Section 851, the
sentencing memorandum, demonstrates that Garner had                  United States gives notice that should an adjudication of guilt
previously participated in the distribution of multiple              be entered against HERMAN GARNER III on Count 1 of the
kilograms of cocaine, that Forest and Garner participated in         within indictment, the United States will invoke the
a joint effort to distribute two kilograms of cocaine to the         applicable penalty enhancement provisions of Title 21, United
DEA informant, and that they jointly transported three               States Code Section 841(b).”
kilograms of cocaine in Garner’s car on May 31, 2001.
Attributing at least two kilograms of cocaine to Garner for the        This court has held that, in examining the adequacy of
purposes of sentencing was therefore not clearly erroneous.          notice under 21 U.S.C. § 851(a), “the proper inquiry is
                                                                     whether the government’s information provided the defendant
G. Sentence enhancement based on Garner’s prior                      reasonable notice of [the government’s] intent to rely on a
   conviction                                                        particular conviction and a meaningful opportunity to be
                                                                     heard.” King, 127 F.3d at 488-89 (quotations marks omitted).
   Garner was convicted of conspiring to distribute cocaine, in      Courts should interpret “§ 851's notice requirements so as to
violation of 21 U.S.C. §§ 841(a)(1) and 846. A defendant             avoid elevating form over substance.” Id. at 489. In the
convicted of violating § 841(a)(1) is subject to a sentence          present case, the Specification in the indictment provided
enhancement for a prior drug conviction if (1) the government        Garner with clear notice of the government’s intent to seek a
files, before trial or a plea of guilty, an information stating in   sentence enhancement based upon a specific prior drug
writing the prior conviction, and (2) the district court, after      conviction. Garner also had a meaningful opportunity to deny
conviction but before sentencing, asks the defendant to admit        the prior conviction by a written response at any time after the
or deny the prior conviction and informs the defendant that          grand jury handed down the indictment in this case on July 5,
any challenge to a prior conviction is waived if not raised          2001. Overturning the enhancement because the government
before sentencing. 21 U.S.C. § 851(a)-(b). Any challenge to          gave notice in a “Specification” included in the indictment
the validity of a prior drug conviction must be made by a            rather than in a separate “information” would accomplish
written response, 21 U.S.C. § 851(c), but a defendant may            nothing more than “elevating form over substance.” Id.
not challenge a conviction that occurred more than five years
before the government files the required information.                  Garner next contends that the sentence enhancement is
21 U.S.C. § 851(e).                                                  invalid because the district court failed to satisfy its
                                                                     obligations under 21 U.S.C. § 851(b) to ask Garner to admit
   Garner contends that his sentence enhancement pursuant to         or deny the prior conviction and to inform him that any
§ 841(a)(1) must be reversed because the required information        challenge to a prior conviction is waived if not raised before
was not filed by the government. The sufficiency of the              sentencing. A district court’s failure to conduct a § 851(b)
government’s filing under 21 U.S.C. § 851(a) presents a              colloquy, however, is subject to “harmless error” review.
question of law that we review de novo. United States v.             United States v. Hill, 142 F.3d 305, 312-13 (6th Cir. 1998).
King, 127 F.3d 483, 487 (6th Cir. 1997).
                                                                       In Hill, this court held that the district court’s failure to
  Garner’s indictment contains a “Specification” that                conduct a § 851(b) colloquy was harmless because (1) the
identifies Garner’s prior drug conviction by court, date, and        defendant failed to challenge his prior convictions in the
case number. The Specification also states that “in                  district court, as required by 21 U.S.C. § 851(c), and (2) the
Nos. 02-3022/3064         United States v. Forest et al.   23

prior convictions occurred more than five years before the
government filed the information in that case, so that
21 U.S.C. § 851(e) prevented the defendant from challenging
the validity of the convictions. Id. at 313. The present case
is indistinguishable from Hill. Garner did not object to the
enhancement either at sentencing or when he received the
Presentence Report, which refers to his prior conviction.
Garner’s prior conviction, moreover, occurred on April 5,
1990. This was far more than five years before the jury
handed down the indictment, which included the
Specification, on July 5, 2001. Even if the district had
conducted a § 851(b) colloquy, therefore, Garner could not
have challenged the validity of his prior conviction. See
21 U.S.C. § 851(e). Any error by the district court was thus
harmless.
                   III. CONCLUSION
  For the reasons set forth above, we AFFIRM the
convictions and sentences of both defendants.
