                         NOT RECOMMENDED FOR PUBLICATION
                                File Name: 12a0346n.06

                                           No. 09-3647                                     FILED
                             UNITED STATES COURT OF APPEALS                           Mar 30, 2012
                                  FOR THE SIXTH CIRCUIT                         LEONARD GREEN, Clerk


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

       Before: BATCHELDER, Chief Judge; CLAY and GILMAN, Circuit Judges.

       RONALD LEE GILMAN, Circuit Judge. Jevon Edwards was twice caught selling crack

cocaine to a confidential informant. On the first occasion, video and audio recordings captured

Edwards handing 63 grams of crack cocaine to the informant in exchange for $2,000. A month later,

the informant came again to Edwards to purchase another 63 grams of crack cocaine. Edwards was

arrested by police officers witnessing this second transaction, and large amounts of both crack

cocaine and powder cocaine were found at the scene.

       Following his arrest, Edwards was indicted on two counts of distributing crack cocaine and

on one count of possessing powder cocaine with the intent to distribute the drug. A jury found him

guilty on all counts, and he was later sentenced by the district court to 120 months in prison.

Edwards now appeals his convictions, claiming that the court erred in admitting hearsay evidence,

in permitting the government to improperly bolster its key witness, and in failing to grant a judgment
No. 09-3647
United States v. Edwards

of acquittal at the close of the government’s case-in-chief. For the reasons set forth below, we

AFFIRM the judgment of the district court.

                                       I. BACKGROUND

        The government presented the following evidence at Edwards’s trial: In 2008, local, state,

and federal officers belonging to the Northern Ohio Law Enforcement Task Force were tipped off

by confidential informant Tyrone Marks that Edwards had sold Marks drugs on a monthly basis for

the past four years. Marks had been caught in a separate drug investigation and, as a result, was

facing federal charges and a potential life sentence.         In exchange for the government’s

recommendation of a more lenient sentence, Marks offered to purchase crack cocaine from Edwards

while under task-force surveillance. Such purchases are known as “controlled buys.”

        Task-force officers decided to conduct two controlled buys from Edwards using Marks as

the buyer. On April 30, 2008, Marks called Edwards, knowing that task-force officers were

recording the conversation. Detective Alvin Dancy of the Cuyahoga Metropolitan Housing

Authority Police Department, a member of the drug task force, was with Marks when he made the

call.

        Although the recorded conversation was cryptic, Marks asked if he could buy two-and-a-

quarter ounces (63 grams) of crack cocaine from Edwards. Marks knew from past experience that

he could make a profit “sell[ing] the whole [amount] as is or just break it down as individual rocks,”

even though he never discussed the price of the crack cocaine with Edwards. On May 1, 2008,

Edwards called Marks, and they agreed to set up a meeting in Marks’s truck at a pre-arranged

location.

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United States v. Edwards

       After talking to Edwards, Marks met with task-force officers to prepare for the controlled

buy. Detective Dancy first thoroughly searched Marks and his truck for contraband, finding none.

The officers then gave Marks $2,000 to purchase the 63 grams of crack cocaine from Edwards. They

also put video and audio recording devices in the sun visor of Marks’s truck. Afterward, Marks

drove to the location where he was to meet Edwards. Approximately 10 task-force officers followed

in separate unmarked vehicles. Marks was never out of their sight.

       Shortly after Marks arrived at the agreed-upon location, Edwards pulled in. Marks was

parked in a location where task-force officers could observe the transaction. Edwards approached

Marks’s truck holding in his left hand a white substance in a clear plastic sandwich bag. Once inside

Marks’s truck, Edwards verified that he had brought with him 63 grams of crack cocaine, and the

two men discussed another potential drug transaction. Edwards then took the $2,000 from Marks

and exited the truck, leaving Marks with the 63 grams of crack cocaine.

       After Edwards left the scene, Marks was followed by task-force officers to another location

where he gave them the 63 grams of crack cocaine that he had just received from Edwards. Detective

Dancy once again thoroughly searched Marks and the entire truck to verify that there was no other

contraband present.

       The next controlled buy did not occur until June 3, 2008. On the day before, Marks called

Edwards and again asked for two-and-a-quarter ounces of crack cocaine. They finalized the details

of the upcoming transaction after a few more phone calls and false starts.

       Before the second controlled buy, task-force officers once more met with Marks. Detective

Dancy meticulously searched him and his truck and found no contraband:

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United States v. Edwards

         I had [Marks] open his shirt, and I searched all his pockets, searched his chest area,
         shook his pants, turned the pockets inside out, went down both legs, took the shoes
         off, searched the shoes and the socks, searched the truck, looked behind the seats, up
         under the seats, in the glove compartment, up under the dash, over the [visors],
         looked around the dash area, searched the ash tray, [and] under mats . . . .

On this occasion, however, the officers put only an audio transmitter in Marks’s truck and not any

video or audio recording devices. Moreover, Marks did not receive any money with which to

purchase the drugs because the officers intended to arrest Edwards (and Marks to allay suspicion that

he was the informant) before the transaction was completed.

         After searching Marks and his vehicle, task-force officers followed Marks to the location

where the transaction with Edwards was to occur. They parked in unmarked cars so that at least one

of the officers could observe the exchange.

         Edwards then arrived at the scene in a car driven by someone else. He walked over to

Marks’s truck, again with a white substance in a clear plastic sandwich bag in his left hand. Once

Edwards sat next to Marks in the truck, Marks put his hand in his pocket as if he were getting the

money to pay. At that moment task-force officers rushed in. Edwards saw them coming and pushed

something from the bench seat to the floor of the truck. Both he and Marks were arrested at the

scene.

         Following the arrests, task-force officers searched Marks’s truck and found four bags filled

with drugs. The first bag, pulled from beneath the driver’s side of the bench seat, contained

62.85 grams of powder cocaine, and the second, found behind the first, contained 6.54 grams of

crack cocaine. Crack cocaine is made from powder cocaine. Edwards had previously told Marks

that he did not make the crack cocaine from the powder until he knew that he had a buyer for it. The

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United States v. Edwards

two other bags were found on the bench seat of the truck and together contained approximately

60 to 63 grams of crack cocaine.

       Edwards was subsequently indicted on two counts of distributing 50 grams or more of

cocaine base (crack), in violation of 21 U.S.C. § 841(a)(1) and (b)(1)(A)(iii) (2008) (one count for

the completed sale on May 1, 2008 and the other count for the interrupted sale on June 3, 2008), and

on one count of knowingly possessing cocaine powder with the intent to distribute the drug, in

violation of 21 U.S.C. § 841(a)(1) and (b)(1)(C), in connection with his June 3, 2008 rendezvous

with Marks. Marks was later sentenced to a term of 90 months’ imprisonment instead of life because

of his cooperation with the task force.

       After the government presented all its evidence at trial, Edwards moved, pursuant to

Rule 29(a) of the Federal Rules of Criminal Procedure, for a judgment of acquittal on all counts. The

district court denied the motion, Edwards presented no evidence of his own, and the jury convicted

him on all counts. The court subsequently sentenced Edwards to 120 months of imprisonment. This

timely appeal followed.

                                          II. ANALYSIS

A.     The district court properly overruled Edwards’s hearsay objection

       Detective Dancy testified that he was with Marks on June 2, 2008 when Marks called

Edwards to discuss a potential drug transaction the next day. The government asked Detective

Dancy what time he understood that the drug transaction was to take place on June 3:

       Q. . . . . So you recall that there was around the noon hour, that there was a
       conversation between Tyrone Marks and the Defendant?


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       A. Yes.

       Q. Okay. And --

       A. And Mr. Marks was advised that --

       MR. WATSON: Objection.

       THE COURT: What’s the basis?

       MR. WATSON: Hearsay.

       THE COURT: Okay. He said Mr. Marks was advised that -- you were going to talk
       about what the Defendant said or what? I mean I’m not sure.

       MS. BRENNAN: I’ll rephrase the question, your Honor.

       THE COURT: Okay.

       Q. You were present when Tyrone Marks was having that conversation with the
       Defendant; is that correct?

       A. Yes.

       Q. Okay. And as a result of that conversation, what was your understanding about
       when this drug deal would be occurring on June 3rd?

       MR. WATSON: Same objection, your Honor.

       THE COURT: I -- this is not for the truth of the matter. He was there, and he was
       told what time the transaction was to come down. He was involved in that as a
       participant. And so I’ll overrule the objection. If you were told when it was going
       to happen, you can say what you were told.

       Q. What was your understanding of whether or not the deal was going to happen on
       June 3rd, after participating --

       A. It was my understanding it would be taking place shortly.




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United States v. Edwards

       Edwards argues that the district court erred by permitting Detective Dancy to testify, over

Edwards’s hearsay objection, as to what Marks told Detective Dancy regarding the timing of the June

3, 2008 controlled buy. The government responds by contending that the testimony was not hearsay.

       We review a district court’s evidentiary rulings under the abuse-of-discretion standard.

United States v. Henderson, 626 F.3d 326, 333 (6th Cir. 2010). Here, the district court did not abuse

its discretion because we agree that the testimony at issue did not constitute hearsay. “The hearsay

rule does not apply to statements offered merely to show that they were made or had some effect on

the hearer.” United States v. Martin, 897 F.2d 1368, 1371 (6th Cir. 1990) (explaining that “out of

court statements offered for the limited purpose of explaining why a government investigation was

undertaken” are not hearsay).

       Edwards nonetheless argues that the question objected to “was not only to establish the time,

but also to improperly suggest that [Marks] had told them that ‘Jevon Edwards’ was going to make

a drug transaction with him.” This argument is without merit, however, because the question that

Edwards objected to elicited nothing more than the timing of the drug transaction. Detective Dancy

had testified earlier in the trial that “[a]fter conferring with [Edwards] on [June] 2nd, Tyrone Marks

advised me that [Edwards] was willing to sell drugs to him.” He had thus already established that

Edwards and Marks planned a drug transaction. Yet Edwards did not object to the earlier testimony

at trial and does not now. His hearsay challenge therefore fails.




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United States v. Edwards

B.      The government did not improperly bolster Marks’s testimony

        In his second challenge to his convictions, Edwards objects to the statement made by the

prosecutor during her rebuttal closing argument (emphasized in bold below), claiming that she “used

the prestige of the United State’s Attorney’s Office to improperly bolster [Marks’s testimony]”:

        And you’re also going to evaluate this; ladies and gentlemen, he received a benefit
        for cooperating with the Government. That was a little—that was less than time on
        his own sentence. He’s already been sentenced for those crimes, and he’s already
        serving time for those crimes. He did not—he was clear when he talked to you,
        ladies and gentlemen. He said I’m not receiving any benefit for being here today.
        There was no added incentive for him to come in here and testify before you.

The emphasized argument, however, does not constitute bolstering. “[B]olstering occurs when the

prosecutor implies that the witness’s testimony is corroborated by evidence known to the government

but not known to the jury.” United States v. Trujillo, 376 F.3d 593, 608 (6th Cir. 2004) (internal

quotation marks omitted). Marks testified at trial that he had already received a sentence reduction

for his cooperation and was not getting any additional reduction or any other benefit in exchange for

his testimony. The prosecutor simply summarized that testimony, testimony that was already

“known to the jury.”

        Moreover, Edwards did not object to the argument at the time it was made. We therefore

review his objection under the plain-error standard. See Henderson, 626 F.3d at 337. Edwards must

demonstrate that “(1) an error occurred; (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 proceedings.” See id. (internal quotation marks omitted).




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No. 09-3647
United States v. Edwards

        Even assuming for the sake of argument that the prosecutor’s statement was improper

bolstering, the error was so minor that it is nowhere near the level required to constitute plain error.

The alleged error was not obvious, it did not affect Edwards’s substantial rights, and it did not

seriously affect the fairness, integrity, or public reputation of the judicial proceedings. Edwards’s

second challenge to his convictions is therefore without merit.

C.      The government presented sufficient evidence to convict Edwards on all counts

        In a final challenge to his convictions, Edwards contends that the evidence presented by the

government at trial was insufficient to convict him on any of the three counts charged and that, as

a consequence, the district court erred in denying his motion under Rule 29 of the Federal Rules of

Criminal Procedure for a judgment of acquittal. The burden imposed on a defendant by Rule 29 is

a high one:

        To prevail on this argument, [the defendant] must bear a heavy burden. In reviewing
        the insufficiency of the evidence challenge, the court examines the evidence in the
        light most favorable to the government and draws all inferences in the government’s
        favor in order to determine whether any rational trier of fact could have found the
        elements of the offense beyond a reasonable doubt.

Henderson, 626 F.3d at 340-41(brackets, citation, and internal quotation marks omitted). Edwards

has not overcome this substantial burden.

        As to the first alleged drug transaction on May 1, 2008, Edwards argues that a reasonable jury

could not have concluded that he sold the crack cocaine to Marks because the “buy money” from the

first transaction was never recovered, the government did not establish that he and Marks agreed on

a price for the crack cocaine, and Marks lied about his hand movements during the video-recorded

transaction. The government responds by pointing out that both Marks and his truck were

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United States v. Edwards

thoroughly searched before Edwards entered the truck and that no contraband was found. But Marks

had with him $2,000 in cash, given to him by task-force officers. On the video, Edwards is seen

carrying in his left hand a white substance in a clear plastic sandwich bag as he got into Marks’s

truck. Marks testified that the substance in Edwards’s hand was the same substance that later was

proven by laboratory tests to be crack cocaine. After Edwards exited the truck, Marks had gained

possession of 63 grams of crack cocaine but no longer possessed the $2,000. The recorded

conversation between Marks and Edwards also confirms that the transaction was for 63 grams of top-

quality crack cocaine:

       Marks: It’s cream?

       Edwards: Yeah. Yeah.

       Marks: 63?

       Edwards: Yeah. I’m not gonna short ya.

       The alleged deficiencies in evidence that Edwards highlights are thus not enough to offset

the overwhelming evidence of Edwards’s guilt. For one thing, simply because the $2,000 “buy

money” was not found in Edwards’s possession when he was arrested a month later does not raise

an inference that he never received it. Many things could have happened to the money over that

period of time.

       Similarly, the failure of Marks and Edwards to verbalize a price does not mean that Marks

did not purchase the crack cocaine from Edwards. Marks explained that the cost of 63 grams of

crack cocaine was commonly known and, in their previous phone calls over the last four years, the

two men had generally tried to avoid discussing any of the details of the transaction in case the call

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United States v. Edwards

was being recorded. This particular transaction, after all, was far from the first time that Marks had

purchased crack cocaine from Edwards.

       Finally, the evidence does not establish that Marks was lying about his hand movements in

the truck during the May 1 exchange. In the video, Marks appears to reach down twice, but only the

top of his right arm is visible, not his hand. Marks testified that he recalled grabbing the crack

cocaine and putting it in his pocket, but did not recall why he reached down the second time.

Edwards contends that Marks clearly reached down twice and is therefore lying about the incident.

Contrary to Edwards’s assertion, however, not being able to recall what happened is not the same

as lying about the events. And even if Marks were lying about reaching down, that does not negate

the overwhelming evidence demonstrating that Edwards sold the 63 grams of crack cocaine to Marks

on the date in question. The evidence that the government presented was therefore more than

adequate for a reasonable jury to conclude that Edwards was guilty of the May 1, 2008 charge.

       As for the June 3, 2008 transaction, Edwards contends that the drugs found inside Marks’s

truck after the arrests were not in the possession of Edwards because they were found on or under

the driver’s seat. But Edwards ignores two key facts: (1) a thorough search of both the truck and

Marks was performed before the transaction and no contraband was found, and (2) Marks remained

under task-force surveillance from the time of the search until the drug transaction occurred, giving

him no opportunity to obtain drugs in the interim. In addition, Marks testified that Edwards brought

drugs into the truck and pushed those drugs under the driver’s seat when task-force officers rushed

in to arrest them.



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No. 09-3647
United States v. Edwards

       A reasonable jury could thus conclude that Edwards brought the drugs into the truck and that

they were in his actual possession. See United States v. Benton, 64 F. App’x 914, 918-19 (6th Cir.

2003) (holding that the government’s evidence was sufficient to prove Benton’s actual possession

of cocaine where witnesses saw him selling cocaine earlier in the day and later that day stuffing

something in his friend’s couch that turned out to be cocaine).

       Edwards also challenges his conviction for possessing with the intent to distribute the powder

cocaine that was found in Marks’s truck on June 3, 3008. “The crime of possession of cocaine with

intent to distribute is a specific intent crime such that the defendant’s intent is a statutory element

of the offense.” United States v. Hardy, 643 F.3d 143, 151 (6th Cir. 2011). “To show possession

of a controlled substance with intent to distribute, the government must prove that: (1) the defendant

knowingly, (2) possessed a controlled substance, (3) with intent to distribute.” United States v.

Allen, 619 F.3d 518, 522 (6th Cir. 2010). Edwards claims that the government never presented any

proof as to his intent to sell the powder cocaine.

       True enough, no direct evidence of his intent was offered at trial, but Edwards’s intent was

sufficiently demonstrated through circumstantial evidence. The government showed that Edwards

had brought 62.85 grams of powder cocaine into Marks’s truck. Marks testified that Edwards

possessed powder cocaine so that he could “cook” it up and make crack cocaine to sell. In addition,

Marks testified that 63 grams of crack cocaine was worth $2,000 and was a large enough quantity

to be sold for a profit. A reasonable jury could conclude, based on these facts, that the 62.85 grams

of powder cocaine that Edwards possessed was intended for eventual sale. See United States v.

Jackson, 55 F.3d 1219, 1226 (6th Cir. 1995) (“Intent to distribute can be inferred from the

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United States v. Edwards

possession of a large quantity of drugs, too large for personal use alone.”); United States v. Young,

243 F. App’x 105, 107 (6th Cir. 2007) (“Possession of large quantities of controlled substances, i.e.,

crack cocaine and cocaine powder, is, standing alone, sufficient evidence of the defendant’s specific

intent to distribute, as is possession of controlled substances having a substantial street value.”). The

evidence was thus sufficient to support Edwards’s conviction on this count.

                                        III. CONCLUSION

        For all of the reasons set forth above, we AFFIRM the judgment of the district court.




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