                          NOT RECOMMENDED FOR PUBLICATION
                                 File Name: 05a0172n.06
                                   Filed: March 4, 2005

                                  NOS. 03-1786/1790/1906/1908

                             UNITED STATES COURT OF APPEALS
                                  FOR THE SIXTH CIRCUIT


UNITED STATES OF AMERICA,               )
                                        )
                                        )
   Plaintiff-Appellee/Cross-Appellant,  )
                                        )
                                        ) ON APPEAL FROM THE UNITED
v.                                      ) STATES DISTRICT COURT FOR THE
                                        ) WESTERN DISTRICT OF MICHIGAN
                                        )
DANTE HOWARD, DIANE STOKES, and )
SHELLY DAVIS,                           )
                                        )
                                        )
   Defendants-Appellants/Cross-Appellees.)
______________________________________


        BEFORE: BOGGS, Chief Judge, DAUGHTREY, Circuit Judge, and WISEMAN,*
District Judge.


        PER CURIAM. The defendants, Shelly Davis, Dante Howard, and Diane Stokes,

were convicted by a jury of conspiracy to distribute heroin. Davis was also convicted of

maintaining a drug house. Howard now appeals his conviction, arguing that the district

court erred in “compelling” a governmental witness to testify without statutory immunity and

in allowing a heroin addict who formerly had an “extreme addiction” to testify. Stokes

likewise appeals her conviction, arguing that the district court erred in admitting audio tapes



        *
          The Hon. Thomas A. Wiseman, Jr., United States District Judge for the Middle District of Tennessee,
sitting by designation.
of her conversations with a government informant. Stokes and Howard also appeal their

sentences: Stokes argues that the district court erred in sentencing her based on 700-1000

grams of heroin, and Howard contends that the district court erred in granting him a four-

level enhancement for being a leader or organizer of the conspiracy. Finally, the United

States cross-appeals Davis’s sentencing order, arguing that the district court erred in

granting her a 12-month downward departure for a state sentence she had previously

served. Although we find no reversible error in connection with the defendants’ convictions,

we conclude in light of the Supreme Court’s recent decision in United States v. Booker, 543

U.S. ___, 125 S.Ct. 738 (2005), that the sentences imposed on Howard and Stokes must

be vacated and their cases remanded for re-sentencing. In addition, we find merit to the

government’s appeal challenging Davis’s sentence, and we therefore vacate her sentence

and remand her case as well.


                  I. FACTUAL AND PROCEDURAL BACKGROUND


       In August 2002, defendants Davis, Howard, and Stokes, together with Darnell

Barber and Shawn Echols, were indicted for conspiring to distribute heroin over a six-year

period from 1996 to the date of the indictment. Davis and Howard were also charged with

maintaining a drug house at 615 McAlister Street in Benton Harbor, Michigan.


       One of the government’s principal witnesses at the trial was John Turner-Bey, who

both aided the conspiracy and bought drugs from some of the defendants. When Turner-

Bey’s testimony contradicted his grand jury testimony, the prosecutor confronted him with

his grand jury testimony. After this happened a few times, Turney-Bey stated, “I also recall,


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at the grand jury, they said my statement would not be used against me . . . . I don’t like

this here. I’m being tricked, and I don’t like it.” The court told him he was not being

charged with a crime and that his testimony could not be used against him in any court of

law. The prosecutor subsequently asked Turner-Bey whether anyone had contacted him

recently about the case, and he answered that Shawn Doe, which was a pseudonym for

defendant Shawn Echols, had come to see him. Turner-Bey said that he feared for his life,

although he later denied that he was changing his testimony because of contact with

Echols. Turner-Bey then continued testifying but, after being confronted with more of his

grand jury testimony, asked whether he could “plead the fifth.” The court responded that

he could not because he had been given immunity regarding his testimony. At a side bar

conference, the defense counsel asserted that Turner-Bey had been given only “pocket

immunity,” not statutory immunity. The court then explained to Turner-Bey that he could

possibly be prosecuted by the state for perjury and asked him whether he wanted to

continue with his testimony. Turner-Bey responded that he wanted an attorney, and the

court appointed counsel for him. The next day, the lawyer explained his understanding that

the immunity Turner-Bey received was the equivalent of formal immunity and indicated that

Turner-Bey wanted to finish his testimony without insisting on formal immunity. Turner-Bey

testified that he had been the doorman at a drug house run by Howard and that he had

purchased heroin from Barber and Stokes.


      Another of the primary witnesses at the trial was Billie Jean Brooks. According to

her testimony, Brooks was a heroin addict who, until August of that year, had used up to

ten “bags” of heroin daily. Brooks testified that she had purchased heroin from Howard for


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use and resale, estimating that since 1995, she had received altogether as much as a

kilogram of heroin from Howard. Brooks also testified that “for a long time” she obtained

heroin from the house on McAlister Street, usually purchasing the heroin from Barber, but

sometimes receiving it from Stokes.


      In addition, Brooks testified about controlled drug purchases that she had made at

the McAlister Street house. For example, on July 11, 2002, she bought two grams of

heroin from Barber and a gram of cocaine from Davis. Stokes was present during the

transaction. On July 19, 2002, Brooks called the McAlister Street house and spoke to

Stokes, who told her that “he’s off on the money” and “it’s here,” which Brooks understood

to mean that there was heroin at the house. Brooks went to the McAlister Street house and

entered a back bedroom with Stokes, Barber, and Davis’s grandson. She obtained two

grams of heroin from Barber and two grams of cocaine from Stokes. At trial, tape-

recordings of the July 19 telephone conversation and drug transaction were played, as

were tapes from other controlled buys.


      At the conclusion of the government’s case, the court granted Howard’s motion to

dismiss the second count against him. The court also determined that “no reasonable jury

could find that Defendants Diane Stokes, Shelley Davis or Darnell Barber could have

reasonably foreseen the conspiracy in which they may have participated involved more

than 100 grams of [heroin].” The court elaborated:


      I suspect, quite frankly, that the people knew that the conspiracy was
      broader, and I think that a reasonable jury could probably find by a
      preponderance of the evidence that the individual participants were involved
      in a conspiracy greater than the threshold numbers of 100 and 1,000. And

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       maybe I’ll make that decision at the time of sentencing. This does not bind
       me at the time of sentencing. But I do not think that the reasonable jury
       could make that finding beyond a reasonable doubt based upon the evidence
       presented at this time.


The court therefore granted the defendants’ motions to dismiss as to the quantity element.


       The jury found Howard, Davis, Barber, and Stokes guilty of conspiring to distribute

heroin, with Howard being found accountable for 1000 grams or more of heroin. Davis was

also found guilty of maintaining a drug house at 615 McAlister Street.


       At sentencing, the district court increased Howard’s offense level, based on his

leadership role in the conspiracy, resulting in a sentence of 202 months in prison. Barber

stipulated to being accountable for 700-1000 grams of heroin and was sentenced to 120

months custody. He does not appeal his conviction or sentence. The district court decided

that Stokes should also be found accountable for 700-1000 grams of heroin, pointing out

that one witness, Justin Brown, testified that he bought four to five grams of heroin per day

for several months from Stokes and Barber and calculating that Stokes and Barber had

sold Brown 120 grams/month over a period of at least seven months. The court also noted

Brown’s testimony that there were some 20 customers a day at Stokes’s and Barber’s

house and found it “clear” that drugs were sold by Barber and Stokes at other times as well.

The court observed that it “defies logic and common sense to believe that Ms. Stokes was

dealing just in the discrete times that were mentioned by the direct testimony” and

concluded that “both Ms. Stokes and Mr. Barber were major drug dealers in Benton Harbor

and [that] finding them responsible for at least 700 grams of heroin is a very conservative

estimate as to the amount of drugs for which they should be held responsible.” After

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granting her a reduction for playing only a minor role in the conspiracy, the court sentenced

Stokes to 78 months.


       The district court found Davis responsible for nine grams of heroin and 23.25 grams

of cocaine, imposing an initial sentence of 33 months but then granting a downward

departure of 12 months for a state sentence that she had served for a conviction involving

the delivery of less than one gram of heroin in 1996, at the beginning of the conspiracy

charged in the federal prosecution.


       On appeal, Howard challenges both his conviction and his sentence, contending that

the district court erred in permitting Brooks to testify, in its treatment of Turner-Bey’s

immunity, and in giving him a four-point enhancement for his role in the offense. Stokes

also appeals both her conviction and her sentence, asserting that the district court erred

in admitting the audio tapes of her conversations with Brooks and in finding her responsible

for 700-1000 grams of heroin. The government appeals Davis’s sentence, contending that

the district court erred in granting the 12-month downward departure.


                                      II. DISCUSSION

A. Alleged Errors at Trial

       Howard argues that John Turner-Bey was improperly compelled to testify without

the benefit of statutory immunity, that his testimony was therefore tainted, and that Howard

should therefore be granted a new trial. However, the privilege against self-incrimination

is a personal one, see United States v. White, 322 U.S. 694, 699 (1944), and, thus, Howard

has no standing to bring a claim on Turner-Bey’s behalf. See United States v. Hathaway,

                                            -6-
534 F.2d 386, 402 (1st Cir. 1976) (“[D]efendants are without standing to contest the legal

sufficiency of the granting of immunity by the Government to [government] witnesses.”).

       Howard also contends that the district court erred in allowing Billie Jean Brooks to

testify, given her testimony she had had an “extreme” heroin habit. Howard argues that

because of her high level of drug use at the time of the events about which she was

testifying, Brooks was unable to satisfy the “personal knowledge” requirement of Federal

Rule of Evidence 602. But because Howard did not object to Brooks’s testimony at trial,

this court reviews the district court’s admission of the testimony for plain error. See United

States v. Henley, 360 F.3d 509, 518 (6th Cir. 2004).

       According to Federal Rule of Evidence 602, a “witness may not testify to a matter

unless evidence is introduced sufficient to support a finding that the witness has personal

knowledge of the matter.” We have recognized that “an argument can . . . be constructed

that a person might be impaired to the point that he would not be able to satisfy the

‘personal knowledge’ requirement of Rule 602.” United States v. Ramirez, 871 F.2d 582,

584 (6th Cir. 1989). However, we have also noted that “the threshold of Rule 602 is low”

and held that “[t]estimony should not be excluded for lack of personal knowledge unless

no reasonable juror could believe that the witness had the ability and opportunity to

perceive the event that he testifies about.” United States v. Hickey, 917 F.2d 901, 904 (6th

Cir. 1990).

       As defendant Howard points out, there were some inconsistencies in Brooks’s

testimony, but they were clearly not so substantial that no reasonable juror could have

believed that Brooks had the ability and opportunity to perceive the events that she testified


                                             -7-
about. Significantly, the district judge found Brooks’s testimony believable, remarking

during the sentencing hearing that “she might not have appeared credible to some of the

lawyers, but she appeared credible to me.” Furthermore, as the government notes, some

of Brooks’s testimony – specifically the testimony that concerned the controlled buys she

made in the summer of 2002 – was corroborated by tape-recordings of the transactions.

We conclude that the district court did not commit plain error in allowing Brooks to testify.

       Defendant Stokes argues that the district court erred in admitting the audio-tapes

of her telephone conversation and in-person conversation with Brooks. She asserts that

the tapes were unreliable because of the high level of background noise and overall

inaudibility of the voices. She also contends that the district court did not sufficiently

validate the accuracy of the transcripts that were used in connection with the tapes. The

district court found, with regard to the telephone conversation, that “the tape and the

transcription are accurate and complete.” With regard to the in-person conversation, the

district court judge noted:

       I think that this tape is sufficiently audible and comprehensible for the jury to
       consider its contents. It becomes a lot less audible when you get to the part
       that’s at page 5 of the typewritten transcription. As a matter of fact, it says
       it in there. By that time, most of the conversation is completed, and the
       transcription is quite accurate as to those parts you can understand. The
       attributions I don’t have a clue about. That’s a matter of proof. So that tape
       can be admitted subject to identifying, once again – and the transcription can
       be used subject to the government identifying the people.


       We review both a district court’s decision to admit tape recordings and its decision

to allow the use of transcripts of recorded communications for abuse of discretion. See




                                             -8-
United States v. Wilkinson, 53 F.3d 757, 761 (6th Cir. 1995). Given the facts in this record,

we find no abuse of discretion by the district judge.

B. Alleged Errors at Sentencing

       Defendant Stokes argues that the district court erred in sentencing her based on

over 700 grams of heroin. She contends that it was Barber, not she, who was involved in

the heroin-related transactions and argues that she should not be held responsible for the

drugs that Barber sold simply because she was present during the drug sales or resided

at the location where the drugs were sold. She asserts that the total quantity of drugs sold

by her during the specific instances mentioned in the pre-sentence report was only 27.868

grams of heroin and 34.8 grams of heroin and that her offense level should have been

determined based on those quantities.

       As noted above, at the close of the government’s case, the court determined that

“no reasonable jury could find that Defendants Diane Stokes, Shelley Davis or Darnell

Barber could have reasonably foreseen the conspiracy in which they may have participated

involved more than 100 grams” of heroin. In sentencing Stokes, under a mandatory

regime, for an amount greater than that, the district court clearly erred under the Court’s

Booker analysis, and Stokes is therefore entitled to a new sentencing hearing.

       Defendant Howard’s base offense level of 32 was increased to 36, based on a four-

level enhancement for his role as an organizer of the conspiracy. He also received a three-

level reduction for substantial assistance, resulting in guideline range of 188-235 months.

The enhancement violates Booker, however, because the jury did not render a verdict on

the question of his role in the drug conspiracy, nor did he admit to being a leader of the

                                            -9-
conspiracy. Without the four-level enhancement, his guideline range would have been 121-

151 months. Because Howard received, under a mandatory regime, a sentence above the

maximum sentence he could have received based solely on the jury verdict or his own

admissions, he is likewise entitled to a remand for re-sentencing.

C. The Government Cross-Appeal

       The government’s challenge to Davis’s sentence is based on the district court’s

decision to grant her a 12-month downward departure for time served on a state conviction

for possession with intent to deliver heroin that grew out of an arrest by local authorities at

the McAlister Street residence in June 1996. At that time, Davis was sentenced to an

indefinite term of 15 months to 20 years but served only one year in state prison. The

district judge granted the departure pursuant to U.S.S.G. § 5G1.3, application note 7

(2002), which at the time read: “In the case of a discharged term of imprisonment, a

downward departure is not prohibited if subsection (b) would have applied to that term of

imprisonment had the term been undischarged. Any such departure should be fashioned

to achieve a reasonable punishment for the instant offense.” U.S.S.G. § 5G1.3(b) (2002),

referenced in application note 7, read in pertinent part: “[If] the undischarged term of

imprisonment resulted from offense(s) that have been fully taken into account in the

determination of the offense level for the instant offense, the sentence for the instant

offense shall be imposed to run concurrently to the undischarged term of imprisonment.”

       Davis asserts that the discharged term of imprisonment was “fully taken into account

in the determination of the offense level for the instant offense” because the charges in the

instant case encompassed the drug raid that resulted in her 1996 state conviction. She


                                            - 10 -
points out that the government presented evidence about that raid at her federal trial and

argues that the government chose to draw the charges broadly and present evidence going

all the way back to 1996, thereby laying the legal basis for the downward departure. She

asserts that the district court’s determination of the drug quantity for which she was

responsible included the drugs seized in the 1996 raid, for which she had already been

convicted in state court, and contends that the district court was correct in granting her the

downward departure under § 5G1.3, which “operates to mitigate the possibility that the

fortuity of two separate prosecutions will grossly increase a defendant’s sentence.” Witte

v. United States, 515 U.S. 389, 405 (1995).

       In response, the government contends that the district court did not take the drugs

seized in the 1996 search into account in determining the drug quantity for which Davis was

responsible. In point of fact, it is not entirely clear from the district judge’s statements at

sentencing whether or not he included those drugs in determining the drug quantity for

which Davis should be held accountable. On one hand, before calculating the amount

attributable to Davis for sentencing purposes, the judge did state that “in 1996, a search

of the residence produced cocaine and heroin.” On the other hand, in explaining why he

was holding her accountable for nine grams of heroin and 23.25 grams of cocaine, the

judge never actually mentioned the .268 grams of heroin and 5.311 grams of cocaine

seized in the 1996 search. Moreover, as the government notes, Davis would have had the

same base offense level and federal sentencing range whether or not the 1996 drugs were

included in the drug quantity determination. The government further notes that the

rationale of § 5G1.3 is to avoid double punishment for the same conduct and that someone



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cannot be considered to have been punished twice for the same conduct when inclusion

of that conduct in the sentencing calculation had no effect on the result. We agree, and

for this reason find that the 12-month downward departure was unwarranted under §

5G1.3(b). The sentence imposed on Davis by the district court, like those of the other two

defendants, must therefore be vacated and her case remanded for re-sentencing without

benefit of the 12-month departure, and without treating the correct guideline range as

mandatory.

                                   III. CONCLUSION

       For the reasons set out above, we AFFIRM the district court’s judgment of conviction

as to each of these defendants but VACATE the sentencing orders contained in that

judgment and REMAND their cases to the district court for re-sentencing in conformity with

this opinion.




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