                               File Name: 04a0113n.06
                              Filed: November 19, 2004
                       NOT RECOMMENDED FOR PUBLICATION

                             Nos. 01-2395, 01-2398, 01-2664, 02-1450

                          UNITED STATES COURT OF APPEALS
                               FOR THE SIXTH CIRCUIT


UNITED STATES OF AMERICA,                        )
                                                 )
       Plaintiff-Appellee,                       )    ON APPEAL FROM THE UNITED
                                                 )    STATES DISTRICT COURT FOR THE
v.                                               )    EASTERN DISTRICT OF MICHIGAN
                                                 )
MARCUS A. ROBINSON,                              )
DENNIS K. MILES,                                 )           OPINION
CHAD J. ROBINSON,                                )
FRANCIS D. HAYDEN,                               )
                                                 )
       Defendants-Appellants.                    )


Before: BATCHELDER and DAUGHTREY, Circuit Judges; and DOWD, Senior District
Judge.*

DOWD, J.

                                         I. Introduction

       The four defendant- appellants, Marcus Robinson, Chad Robinson, Dennis Miles and Francis

Hayden, were convicted in a month-long jury trial that featured a charge of conspiracy involving

the growing and harvesting of marijuana plants in the states of Indiana and Michigan over a lengthy

period of time. Two of the defendants, Chad Robinson and Francis Hayden, received life sentences;




       *
         The Honorable David D. Dowd, Jr., United States District Judge for the Northern District
of Ohio, sitting by designation.
Case No. 01-2395/2398/2664/02-1450

Marcus Robinson was sentenced to a term of 130 months and Dennis Miles was sentenced to a term

of 121 months.

                           II. Summary of the Factual Background

       Count 1 in the third superceding indictment charges a marijuana conspiracy in violation of

18 U.S.C. § 846, covering the years 1991 until 1998, in the Eastern District of Michigan and

elsewhere. The government’s evidence demonstrated that the growing of marijuana for sale began

in the State of Indiana and expanded into the State of Michigan in 1995.

       The testimony presented by the government was broken into four separate phases.

       The first phase dealt with the Indiana operation and featured the testimony of defendant-

appellant Chad Robinson’s former wife, Frances Robinson, and the additional testimony of James

Steffen. Frances Robinson indicated that her ex-husband, Chad Robinson, and his brother operated

a farm in Indiana for the growing of marijuana and utilized their used-car operation at R Motors as

a cover for the sale of marijuana. Her testimony was supported by James Steffen who described his

many purchases of marijuana from co-conspirator Ralph Kough. Steffen also provided testimony

that connected the Robinson brothers, Chad and Marcus, to the Indiana operation.

       The second phase of testimony began with the 1995 purchase of a 78-acre farm on Argyle

Road in Sanilac County in the State of Michigan by the Robinson brothers, Chad and Marcus. The

farm was used in the summer of 1995 for the growing and harvesting of massive amounts of




                                                2
Case No. 01-2395/2398/2664/02-1450

marijuana, hidden in rows of corn. Co-defendant James Austin Mattingly, a government witness,

described the 1995 operation in great detail.1

        The third phase of testimony involved a similar marijuana-growing operation in the summer

of 1996, supervised by the defendant Francis Hayden.

        The fourth phase involved the inadvertent discovery of the marijuana operation on the

Sanilac County farm in the latter part of August 1996 and the subsequent lengthy investigation that

led to the initial indictment returned on February 10, 1999. On October 31, 1996, James Knowlton,

a neighbor of the Argyle Road farm, called the local Sheriff’s office and reported that he noticed

unattended horses had escaped from their pasture on the Argyle Road farm and were on the road.

Knowlton also asked the officers to check on the welfare of Hayden, the horses’ owner, since no one

had seen Hayden for days. J.A. 1256-1258; 2263-2267.

        Deputy Ed Jarosz went to the Argyle Road farm in response to Knowlton’s request. He

found no one at the farm, but did see marijuana in the trailer on the property; he secured the

premises while a fellow officer obtained a search warrant. J.A. 1257-64. Upon executing the search

warrant, the officers discovered the sophisticated marijuana-processing facility which had been built

in the barn, as well as records that listed the number of marijuana plants that had been planted in

each row of corn. The total of over 18,900 plants that the record suggested was consistent with the

marijuana stalks that were found in the corn the officers discovered still standing, unharvested. J.A.

1281-1286; 1319-1323; 1333-1335. The officers also discovered a horse trailer in the barn. They


        1
           James Austin Mattingly had a brother named James Curtis Mattingly. To differentiate between the brothers,
the parties used the middle names, Austin and Curtis. Curtis testified as a defense witness called by the defendant
Francis Hayden. See J.A. 3209-3274. Curtis admitted working in both the 1995 and 1996 growing and harvesting
operations, but denied knowing Francis Hayden.

                                                         3
Case No. 01-2395/2398/2664/02-1450

traced the trailer to Hayden using the confidential VIN number. J.A. 1294; 1325-1329. The officers

also found fingerprints for Hayden and James Curtis Mattingly on the farm. J.A. 2345-2348; 2419-

2420; 2527-2532; 3216-3219; 3240; 3246-3248.

         Sheriff’s deputies called Marcus Robinson, who was listed as owner of the Argyle Road

farm, in an attempt to locate the responsible parties. Marcus Robinson claimed that he had rented

the property to John Hunt. J.A. 853; 872; 1745-48; 1753-55. Subsequent investigations revealed

that “John Hunt” was a pseudonym that several members of the conspiracy used, and that the

purported lease between Marcus and John Hunt was a fake. See, e.g., J.A. 1546-51; 1751-53; 2077;

2085; 2130; 2669-70.

         Sergeant Biniecki made undercover calls to R Motors trying to find more information about

the owner of the horses, then known as “Frank.” Biniecki spoke with Chad Robinson, who claimed

to know little about the property and falsely said he had never been there. J.A. 848-52; 1729-31.

In fact, Chad had posed as Marcus Robinson in January 1995 when the agreement for the purchase

of the Argyle Road farm was signed, allegedly because Marcus was ill. J.A. 1375-97; 1488-1501,

1506-1508; 1521-1523.

             First, second and third superceding indictments were returned. The third superceding

indictment was filed on March 28, 2001.2

         2
            The first indictment was filed on February 10, 1999; in the first count, charging a 21 U.S.C. § 846 conspiracy,
it named defendants Marcus Robinson, Chad Robinson, Rex Robinson, Ralph Michael Kough, Barbara L. Kough,
Francis Darrell Hayden and James Austin Mattingly. The first superceding indictment filed on December 7, 1999 added
two new defendants, Dennis Keith Miles and James Michael Everett. The second superceding indictment filed on
August 16, 2000 named all nine defendants included in the first superceding indictment. The third superceding
indictment filed on March 28, 2001, reduced the number of defendants charged in the conspiracy to the three Robinsons
(Marcus, Chad and Rex) along with Francis Hayden, Dennis Miles and James Everett. The trial in the case under
appellate review involved the three Robinsons, Hayden and Miles. The record before us does not disclose the outcome
                                                                                                         (continued...)

                                                            4
Case No. 01-2395/2398/2664/02-1450

                                    III. The Primary Issues on Appeal

A.       The Testimony of Chad Robinson’s Ex-Wife, Frances Robinson3

         The third superceding indictment charged Chad Robinson with a conspiracy that began in

1991 and continued until 1998 in Michigan and elsewhere. Chad Robinson lived in Indiana with

his ex-wife, Frances. She filed for divorce in 1994 and was divorced in 1995. Subsequently she was

questioned and cooperated; she testified before the grand jury and her testimony was apparently

made available. Her testimony, beginning at J.A. 1940, covered 127 pages of the transcript and

clearly implicated Chad and his brother Marcus in a marijuana operation in Indiana. Her testimony

described the used car business at R Motors in Indiana as a cover for a vast marijuana operation in

Indiana which included nurturing marijuana seeds to plants, placing the plants in corn fields at

night, and a night-time “coon hunting ruse” used by Chad and Marcus to cover their marijuana-

growing work in the corn fields. Frances also testified to accepting money for what appeared to be

obvious payments for marijuana even though the payments were delivered to the R Motors office

which was near their home in Indiana. However, Frances was not involved in the subsequent 1995-

1996 marijuana-growing operation in Michigan.




         2
          (...continued)
of the case against Rex Robinson, but only against Marcus and Chad Robinson. The charges against the two Koughs,
James Everett and James Austin Mattingly were resolved earlier by guilty pleas. Only Mattingly testifed as a
government witness and his testimony focused on the marijuana operation on the Michigan farm in 1995.

         3
          Chad Robinson raises a number of issues on appeal. One of the claims alleges insufficient evidence to support
his conviction. Our review of the record leads to the conclusion that the insufficient evidence claim is patently without
merit. Chad Robinson does not challenge his sentence. He does allege four specific claims of prosecutorial misconduct,
which include the questioning of his ex-wife, Frances Robinson, and which we address in depth, and also misconduct
during the final argument, which we address later in this opinion.

                                                           5
Case No. 01-2395/2398/2664/02-1450

         The issue of the spousal objection to communications during the marriage was raised for the

first time when the government called Frances as a witness. The district court recessed, studied the

relevant law, and opined as follows:

                 THE COURT: Be seated, please. I have reviewed the Sims case.4 It is clear
         that there are two marital privileges that apply in certain circumstances. One is a
         privilege against marital facts which applies in a situation where the witness and the
         testifying spouse are currently married. It certainly does not apply here because I
         understand the witness, Frances Robinson, is a former wife of defendant Chad
         Robinson.

                And in all events, that particular privilege is the privilege of a testifying
         spouse and can be waived by that spouse, which was the decision of the Supreme
         Court in the Trammel case 21 years ago.5

                 The privilege that apparently applies here, and may be asserted by the
         defendant, is the privilege against disclosure of confidential marital communications.
         And that privilege applies when a communication occurred during the course of a
         marriage and was intended to be confidential, that is it was made in the presence of
         the husband and wife only and not the presence of third parties. That privilege
         survives the dissolution of the marriage and may be invoked by the non-testifying
         spouse.

                 The government has cited an exception to that privilege, which applies in the
         sixth circuit, in a case in which the testifying spouse has engaged in communication
         with the non-testifying spouse, or the defendant, in patently illegal criminal activity.
         The sixth circuit has recognized the exception to that privilege but it’s limited. The
         court held in Sims that the exception would be adopted in the sixth circuit. It stated
         that the exception is limited to permit admission only of those conversations that
         pertain to patently illegal activity. Only where spouses engage in conversations
         regarding joint ongoing or future patently illegal activity does the public’s interest
         in discovering the truth about criminal activity outweigh the public interest in
         protecting the privacy of the marriage.

         ***


         4
          The Sims case to which the District Court referred is Sims v. United States, 755 F.2d 1239 (6th Cir.), cert.
denied, 473 U.S. 907 (1985).

         5
             The Trammel case to which the District Court referred is Trammel v. United States, 445 U.S. 40 (1980).

                                                           6
Case No. 01-2395/2398/2664/02-1450

                 On the other hand, conduct sought by one spouse that is unambiguously
         illegal would seem outside the area of a desired husband wife intimacy, so that the
         admission of related communications would be unlikely to hinder favored discussion.

         ***

                If the communications took place while the marriage was in effect, then
         before the testimony can be admitted, a foundation must be established that the
         communications involved patently illegal activity by both the witness and the
         defendant; that is joint activity.

J.A. 1906-07; 1907; 1908 (footnotes added). After the district court carefully spelled out the ground

rules, he announced the requirement that, absent an objection, the privilege is waived.6

         In sum, the district court relied on the teachings of Sims v. United States, 755 F.2d 1239,

1243 (6th Cir. 1985), and spelled out two exceptions that would result in a denial of the spousal

privilege; i.e., conversations that relate to patently illegal activity or conversations in the presence

of a third person.

         The testimony of Frances Robinson, if believed by the jury, was devastating to the Robinson

brothers. However, on five occasions, it developed that the testimony of Frances Robinson infringed

on the spousal privilege; timely objections were raised, the objections were sustained and the jury

instructed to disregard the answers.7


         6
           THE COURT: Now, also, Mr. Scales, I’m sure you understand the privilege must be asserted or it’s waived.
So timely objection will be required, do you understand that? J.A. 1909.

         7
           The five occasions are found at: (1) J.A. 1932 line 19 to 1935 line 18; (2) J.A. 1941 line 9 to 1942 line 25;
(3) J.A. 1944 line 13 to 1945 line 15; (4) J.A. 1977 line 1 to 1978 line 9; and (5) J.A. 1982 line 3 to 1983 line 2.

         The first objection was carefully handled by the district court in the following extensive colloquy:

                  Q [Ms. Parker]. In 1992 did you – this a yes or no question – in 1992 did you have reason
         to believe that marijuana was being grown anywhere other than the farm in Selvin?
                  A.       In ‘92?
                                                                                                       (continued...)

                                                           7
Case No. 01-2395/2398/2664/02-1450



      7
       (...continued)
              Q.        Yes.
              A.        No.
              Q.        In the fall of 1992 was there a harvest of marijuana?
              A.        I’m sure there was.
              Q.        Why do you answer in that fashion, did you see it?
              A.        No.
              Q.        Why did you think there was?
                        MR. SCALES: Foundation, your Honor.
                        THE COURT: I think that’s what she’s getting at is a foundation.
              A.        Because I knew that they had planted the plants in Selvin in the bedroom.
              Q.        Let me ask it this way, did you hear any discussion – first of all, how did you know
              that the plants were planted in the bedroom in Selvin?
              A.        In Selvin?
              Q.        Yes, in ‘92.
              A.        We went up there once in the latter part of the winter, early spring.
              Q.        Who is we?
              A.        Chad, Sadie, Russell and I.
              Q.        All right. And what did you see?
              A.        At that time?
              Q.        Yes.
              A.        I didn’t see the plants but I knew they were there.
              Q.        How did you know that?
              A.        Because that’s what Chad went there to check on and to make plans to –
                        MR. SCALES: Your Honor, I object if the foundation for the information is from
              Mr. Chad Robinson, we would assert a confidential privilege, and ask it be stricken and the
              jury disregard the answer.
                        We ask the witness, be admonished to not testify further with respect to the
              conversations with Chad Robinson.
                        THE COURT: Approach.
                        (Following is sidebar).
                        THE COURT: Technically the response to the question called for a description of
              conduct, not a description of communication, that is what Chad went there to check on the
              plants.
                        However, I can see that the next question would be how do you know that. He [sic]
              if she says because he told me that, I see where that might fall within the scope of the
              privilege.
                        This witness is getting into an area where it sounds like she’s speculating on
              whether there was a harvest in 1992, and I know you’re trying to get to a foundation.
                        MS. PARKER: I’m trying to get away from that.
                        THE COURT: I don’t think we’re getting one. It seems to me in order to establish
              the foundation – I understand you’re doing it in good faith – that you’re in danger of
              encroaching on possibly inadmissible evidence.
                        MS. PARKER: Well I think it would also – could be patently illegal joint activity
              if she knew she was going there for that purpose.
                        THE COURT: That could be the case, except you have already elicited testimony
              from this witness –
                                                                                                    (continued...)

                                                       8
Case No. 01-2395/2398/2664/02-1450

       During the course of the trial, defendant Hayden’s counsel moved for a mistrial based on the

questioning of Frances Robinson, J.A. 2214, and was joined by some of the defendants. AUSA

Parker responded, stating in part:

               I realize there were times that resulted in rulings in the course of Frances
       Robinson’s testimony that resulted in some of the testimony being stricken. But I
       think the court indicated it wanted a sidebar, that I was attempting in good faith to
       lay a foundation and to adduce admissible evidence.

               And the one example that comes to my mind is the one about putting the male
       plants in a plastic bag prior to a -- separating the male plants from female plants in
       order to generate seeds. I understood from my preparatory interview with Frances
       Robinson that was something she observed as well as being told about. That would
       be the kind of thing that -- one of the reasons we think it would be admissible.
       That’s not the way she testified on the stand, but I don’t think that in any way
       constitutes bad faith.

                Nor do I think that Mr. O’Farrell has cited anything or any reason to think
       that the jury cannot follow the court’s instructions, I think the court has always made
       prompt directions to the jury to disregard anything that the court found to be
       improper. But all matters were offered in good faith, perhaps having a different
       concept of what was in furtherance.

J.A. 2216.

       The district court then denied Hayden’s motion for mistrial and stated:

              THE COURT: I’m satisfied that the questions asked by all counsel in this
       case generally have a colorable basis of validity, and that arguments that are made
       have also a colorable basis of validity based upon the rules of evidence. My rulings,
       of course, are based upon my view of what the prevailing law is, taking into account


       7
        (...continued)
                        (Sidebar ended)
                        THE COURT: You may proceed.
                Q.      In 1992 did you have an occasion to see any marijuana growing activity?
                A.      In ‘92?
                Q.      Yes.
                A.      No.
                THE COURT: Very well, the objection is sustained and the jury is instructed to disregard the
       previous answer.

                                                        9
Case No. 01-2395/2398/2664/02-1450

       the context of the testimony as I have heard it thus far, and also issues relating to
       inappropriate cases balances [sic] the question of unfair prejudice.

               There are issues of privilege that were presented in a straightforward way.
       Those ground rules were outlined. I understand that in the course of trial
       preparation, sometimes witnesses will testify from the witness stand in a manner
       differently than they have testified in the given grand juror statements during the
       course of interviews. And in some cases I would even -- this may surprise you -- but
       even the summaries of interviews contained in the 302s and other documents might
       not be exactly what the witness has said in the past.

              I don’t find a basis to grant the motion for a mistrial at this point. Mr.
       O’Farrell has requested an admonition, I don’t think an admonition is necessary;
       however, I will advise all counsel that if I detect that there’s a question that is asked
       where there’s no good faith basis for the question being asked that the questioner will
       be admonished and perhaps admonished in front of the jury.

              Likewise, if there’s an argument made that suggests that any attorney that
       makes an objection and properly invokes the rules of evidence solely for the purpose
       of being an obstructionist, if such an argument is made, that argument will be
       addressed in front of the jury.

               Finally, if you believe that there has been some implication, Mr. O’Farrell,
       by any of the government’s arguments, I will invite you to suggest a cautionary
       instruction to be included in the instructions at the conclusion of trial.

J.A. 2216-18.

       Following the convictions, the defendants moved for a new trial and asserted prosecutorial

misconduct in the questioning of Frances Robinson. The district court, after citing United States v.

Carter, 236 F.3d 777 (6th Cir. 2001), for the two-pronged test to determine whether prosecutorial

misconduct compels a new trial, opined as to the Frances Robinson testimony, and denied the

motion stating:

              Even assuming that the various statements during Francis [sic] Robinson’s
       testimony were improper, the defendant simply has not demonstrated how these
       comments were anything more than isolated and has not explained why the Court’s
       repeated curative instructions that were given and given at the defendant’s request,

                                                  10
Case No. 01-2395/2398/2664/02-1450

         were incapable of curing any alleged prejudice that the defendant has not identified
         with respect to Francis [sic] Robinson’s testimony.

J.A. 3687.

         Sims, supra, does not address the standard of review when the district court’s rulings on the

exercise of the spousal privilege are at issue. In this case, in consideration of the penalty exacted

on Chad Robinson, we have engaged in a careful and detailed de novo review. In applying that strict

standard of review, we find no error. The district court was sensitive to and carefully handled the

issue.8 Additionally, we find no prosecutorial misconduct in AUSA Parker’s questioning of Frances

Robinson.

B.       The Denial of Francis Hayden’s Motion to Suppress

         The October 31, 1996 warrantless search of the trailer-residence located adjacent to the farm

buildings where the marijuana production flourished prompted the persistent efforts by Appellant

Francis Hayden to suppress the fruits of the warrantless search of the trailer-residence and the

subsequent judicially-authorized search of the farm buildings which led to the discovery of the

magnitude of the marijuana-growing operation as described by James Austin Mattingly. Hayden’s

efforts to suppress continued even in a post-verdict motion. At all times, his efforts failed on the

continuing judicial determinations, first by the assigned magistrate judge, and then by the district

court, on the basis that Hayden lacked standing to pursue the Fourth Amendment claim.9


         8
          As we find no error on a de novo standard of review, we express no opinion as to whether such a standard is
required or whether the standard should be abuse of discretion.

         9
          We pause to reflect on the nature of the warrantless search on October 31 because, in our view, the search
was conducted under what we find to constitute exigent circumstances in the absence of a similar finding by the district
court. “The Fourth Amendment does not bar police officers from making warrantless entries and searches when they
                                                                                                       (continued...)

                                                          11
Case No. 01-2395/2398/2664/02-1450

         United States v. Leake, 998 F.2d 1359, 1362 (6th Cir. 1993) teaches that the standard of

review as to motions to suppress is based on two complimentary standards: the district court’s


         9
          (...continued)
reasonably believe that a person within is in need of immediate aid.” Thacker v. City of Columbus, 328 F. 3d 244, 253
(6th Cir. 2003). Some courts have found that a 911 call reporting an emergency, without more, may be enough to
support a warrantless search of a home. See, e.g., United States v. Cunningham, 133 F. 3d 1070, 1072-1073 (8th Cir.)
(finding 911 call from woman who identified herself and claimed she was being held against her will justified a
protective sweep of dwelling), cert. denied, 523 U.S. 1131 (1998); United States v. Richardson, 208 F. 3d 626, 630 (7th
Cir.) (concluding that a 911 call where caller identified himself and stated that “Lucky” had raped and murdered a
woman whose body could be found in the basement of a particular address was enough to support a warrantless search
under the exigent circumstances exception), cert. denied, 531 U.S. 910 (2000). When police respond to a tip that a
person inside a dwelling may be in need of aid, however, they may only be justified in entering the home if they observe
facts indicative of exigent circumstances when they arrive outside the home. Thacker, 328 F. 3d at 254 n. 2.
            In this case, Sheriff’s Deputies went to the Argyle Road Farm in response to a neighbor’s call stating that horses
had been loose and that he had not seen the owner of the horse, Hayden, for several days. That neighbor, James
Knowlton, requested that the officers check on the welfare of the owner. (J.A. 2263-2268.) There is no evidence that
the officers had any other reason or suspicion for investigating the farm than concern for the occupant’s welfare. Deputy
Ed Jarosz and Sergeant Biniecki, who had been in the area of the farm on other matters, went to the farm about two hours
after Knowlton’s call. (J.A. 1256). The officers went to the trailer home located on the farm to check on the well-being
of the resident. They went to the back door of the trailer and knocked and announced a couple of times but no one
answered. (J.A. 1259). Jarosz then turned the doorknob of the shut back door and found it unlocked, so he entered to
check on the welfare of the occupant. (J.A. 1259-1260). He found no one, but noticed the furnace was running and there
was a slight odor of oil. (J.A. 1260). Jarosz also noted that there were things on the table of the trailer “that you just
wouldn’t leave on the table if you were leaving,” such as a carton of cigarettes and an open package of Oreo cookies.
(J.A. 1262). Jarosz testified that usually when checking on the well-being of persons in their county, officers would find
the person sick or deceased in the bathroom or master bedroom. (J.A. 1260). After not finding anyone in the bathroom,
the officers went to the master bedroom and scanned it with a flashlight. There they observed a plastic bag of marijuana
on a dresser. (J.A. 1261). The officers continued to scan the trailer and saw marijuana in an ashtray on the coffee table
of the living room and in an ashtray on the kitchen table. (J.A. 1262). The officers did not open drawers or investigate
the marijuana more closely. Finding no one in the trailer, the officers left and went to look at the outbuildings. The
officers heard a dog barking inside the barn, but the barn and other outbuildings were locked from the outside with
padlocks, so they did not enter. (J.A. 1263-1264). Jarosz went back to the trailer and secured the area while Biniecki
went to the office to secure a search warrant for the property. (J.A. 1264).
            Hayden argues that there was no urgency for the officers to search the trailer, and consequently that the officers’
warrantless search of the trailer did not fall under the exigent circumstances exception to the prohibition against
warrantless searches. (Hayden Br. at 44). Hayden points to the fact that the officers arrived two hours after Knowlton’s
call, first finishing their other business in the area. Additionally, Hayden states that the officers did not observe anything
unusual about the outside of the trailer, nor did they find any evidence inside the trailer that someone was injured or ill.
(Hayden Br. at 45).
            Hayden’s arguments fail to demonstrate lack of urgency. First, although the officers arrived two hours after
the neighbor’s call, Hayden did not provide any evidence as to when the officers in the field received the request to
investigate or how long it took the officers to travel to the Argyle Road farm, nor any evidence regarding the level of
emergency of the matter that the officers were attending to prior to investigating the Argyle Road farm. Second, the
combination of the facts that the trailer was located on a farm where an occupant would be isolated, that animals on the
farm had escaped and run free, that the neighbor had not seen Hayden for days and was concerned about his well-being,
and that the door to the trailer was left unlocked but the heat was left on, was enough to give the officers a reasonable
belief that Hayden, the occupant of the trailer, was in the trailer and in need of immediate aid.

                                                             12
Case No. 01-2395/2398/2664/02-1450

findings of fact are upheld unless clearly erroneous, whereas the district court’s legal conclusions

are reviewed de novo. The standard of review focusing on issues relating to standing with respect

to motions to suppress on grounds of Fourth Amendment violations was alluded to in United States

v. King, 227 F.3d 732 (6th Cir. 2000). Although the standard of review was not addressed

specifically, the King court appears to have concluded that the district court’s findings of fact were

clearly erroneous in its reversal of the ruling that the defendant lacked standing. Id. at 749-50.

Consequently, we conclude that we should review the fact-findings of the district court using a

clearly erroneous standard and the legal conclusions using a de novo standard.

        Hayden’s initial motion to suppress was filed on February 22, 2000. J.A. 212.10 The

assigned magistrate judge conducted a hearing on the motion to suppress on May 19, 2000. His

Report and Recommendation declared that counsel agreed that the standing issue should be decided

prior to any testimony or argument on the underlying issues regarding the propriety of the search.

J.A. 320.




        10
             The motion was eventually supplemented by Hayden’s May 24, 2000 affidavit which declared:
        1.        That he is a competent person and that the facts set forth herein are true based upon his
                  personal knowledge and/or information and belief.
        2.        That on October 31, 1996 and prior thereto, he was in lawful possession of the residence
                  located [at] 5647 Argyle Road in Sanilac County, Michigan.
        3.        That on October 31, 1996 and prior thereto, he had exclusive possession of the residence and
                  exclusive control of the residence at which he was staying.
        4.        That police entry into the home, the search thereof, and seizure of items from the home was
                  in violation of his privacy and legitimate expectation that no one would enter the home
                  without his knowledge, permission, or consent and that he did not give any consent real or
                  implied to the police for the illegal entry of the home.
        5.        That items taken from the home included personal property owned by Defendant including
                  a small quantity of marijuana kept by Defendant for his personal use in the bedroom of the
                  home.

J.A. 248-49.

                                                          13
Case No. 01-2395/2398/2664/02-1450

         After considering the arguments of counsel and the documents presented by the government,

the August 18, 2000 Report and Recommendation concluded with the observation that Hayden had

failed to meet his initial burden of demonstrating that he had a legitimate expectation of privacy in

the residence searched and, thus, lacked standing. J.A. 328-29.11


         11
            The Report and Recommendation of Magistrate Judge Charles Binder set the stage for the factual findings
that withstood the assault of repeated motions for reconsideration on the search issue. We quote in part from Magistrate
Judge Binder’s report as follows:

                    The documents provided by the Government relating to 5647 Argyle Road include a purchase
         agreement for the property dated January 27, 1995, which bears Mark Robinson’s signature as the buyer and
         David C. Bullock’s as the seller, (see Dkt. 182, Att. C); closing documents from the sale, such as the cashier’s
         check showing Marcus Robinson as the remitter and the title insurance papers; a lease agreement dated April
         19, 1995, which states that Marcus Robinson leases the property (including 55 tillable acres, the barn, and the
         trailer) to John Hunt for the period of May 1, 1995 to May 1, 1998, and that Mr. Hunt is not allowed to sublet
         the premises without Robinson’s consent, (see id., Att. F); and approximately twenty-two pages of farm
         operation documents, such as fuel invoices and cancelled checks from 1995 and 1996 which bear the names
         of John Hunt and Tom Miller. (See id., Att. E).
                    Also provided by the Government is a transcript of a telephone conversation between Administrator
         William Gray of the Sanilac County Sheriff Department and Marcus Robinson which took place on November
         13, 1996. From the transcript it appears that Mr. Gray was returning Robinson’s call, and the subject of
         conversation was Robinson’s recent discovery that an affidavit for search warrant was affixed to the door of
         the trailer at his Argyle Road property. During the conversation, Robinson states at least twice that he rented
         the place to “John” and he’s never heard of anyone named “Frank.” Robinson states that if someone other than
         John is in there, they’re not supposed to be. (See id., Att. D).
                    * * *
                    Defendant has failed to claim any ownership interest in the location searched. The government alleges
         that Defendant did not have lawful possession or lawful control of the property. Professor LaFave’s treatise
         on the Fourth Amendment directly addresses this situation:

                            The burden is on the defendant to establish that his presence was not wrongful, and
                  this burden is not met by merely establishing that the premises are not occupied by anyone
                  else or that the premises belong to a friend. Usually, what is required is a showing that a
                  person authorized to do so gave permission for the defendant to be present on that particular
                  occasion, although such a particularized consent need not be shown if by custom the
                  defendant was allowed to come on the premises whenever he chose to do so.
                  5 Wayne R. LaFave, Search & Seizure §11.3(b)(3d ed. 1996) (footnotes omitted).

                   The Sixth Circuit’s McRae decision, supra, bears out this rule. In McRae, the defendant argued that
         he had a legitimate expectation of privacy in a house where he had been living by himself for a week. See
         McRae, 156 F.3d at 711. In rejecting his claim, the court stated that he “did not have a legitimate expectation
         of privacy by virtue of having stayed a week in the vacant premises that he did not own or rent.” Id. In support
         of its conclusion, the court cited two cases which are instructive here. The first, United States v. Carr, 939 F.2d
         1442 (10th Cir. 1991), held that a defendant’s occupancy of a hotel room for three weeks which was not
                                                                                                          (continued...)

                                                            14
Case No. 01-2395/2398/2664/02-1450

        On October 11, 2000, the district court, in response to the timely objections to the August 18,

2000 Report and Recommendation, conducted what was to be considered an evidentiary hearing

limited to a consideration of many investigative statements accumulated by the government and

shared with the defendants’ counsel. See J.A. 3720-75. At the conclusion of the hearing, the

district court overruled the objections to the Report and Recommendation and declared:

                Now if there was evidence that the defendant had dealt with the record title
        holder of the property and obtained permission, or was employed as a caretaker by
        someone else who was in lawful possession of the premises and given permission to
        stay there by that person, or had entered into an agreement, written or oral, with
        someone who had lawful possession of the premises which would have allowed the
        defendant to be present there, occupy the residence and maintain a degree of


        11
             (...continued)
        registered to him or to anyone he was sharing it with could not be the basis of a legitimate expectation of
        privacy because the defendant had no lawful possession or lawful control of the premises. See id. at 1446. The
        second, United States v. Gale, 136 F.3d 192 (D.C. Cir. 1998), held that a defendant who changed the locks on
        an apartment rented to someone else and used it for packaging drugs had no legitimate expectation of privacy
        in the apartment because he did not have legal authority to be there. . . .

                 In this case, then, the question is whether Defendant has met his burden of showing that the person
        authorized to do so gave Defendant permission, or lawful control of, the mobile home on the Argyle Road
        property. To this end, the sole evidence before this Court is Defendant’s sworn statement that he had exclusive
        lawful possession and control of the residence. (See Aff., Dkt. 174). Defendant’s conclusory assertion,
        however, is contradicted by the numerous documents demonstrating that the owner of the property at the time
        in question was Marcus Robinson and the lessee was John Hunt.[ ] Defendant has provided no evidence
        whatsoever that either Marcus Robinson or John Hunt gave him permission to occupy, the mobile home on
        Argyle Road. . . .

                  I further suggest that Defendant’s argument that he has standing because he has admitted ownership
        of a small quantity of marijuana seized from the mobile home fails to carry the day. It follows naturally from
        the case law cited above that merely claiming an ownership or possessory interest in an item seized does not
        automatically confer standing to challenge the seizure of that item. The Supreme Court expressly rejected such
        “automatic” standing, and has made clear that the appropriate inquiry under the Fourth Amendment is “not
        merely whether the defendant had a possessory interest in the items seized, but whether he had an expectation
        of privacy in the area searched.” United States v. Salvucci, 448 U.S. 83, 93, 100 S.Ct. 2547, 65 L.Ed.2d 619
        (1980). Having already suggested that Defendant has failed to show that he had a legitimate expectation of
        privacy in the area searched, I further suggest that Defendant’s claim of ownership of one small quantity of
        marijuana seized does not alter the conclusion that the evidence is not subject to suppression under the Fourth
        Amendment.

J.A. 324-29.

                                                         15
Case No. 01-2395/2398/2664/02-1450

         possession and, therefore, an expectation of privacy, the court might be persuaded
         otherwise.

                However, I find that that evidence simply does not exist in this case and,
         therefore, the defendant has not carried his burden.

               For those reasons, the defendant’s objections to the magistrates report and
         recommendation are overruled and the motions to suppress are denied.

J.A. 3772.

         On November 30, 2000, Hayden moved for reconsideration of his motion to dismiss. See

J.A. 350.12           The motion was accompanied by a second affidavit of Hayden.13


         12
            The isolated commentary of the district court during the hearing conducted on October 11, 2000, to the effect
that he questioned the exigent circumstances for the warrantless search of the house trailer may have prompted the
repeated efforts by Hayden’s counsel to secure a favorable ruling on his motion to suppress. Specifically, the district
court stated: “In this case, the officer made the entry into the house trailer, the residence, if you will, did so without a
warrant, without probable cause and as far as I could tell, without any exigent circumstances which would have excused
obtaining a warrant.” J.A. 3769.

         13
              The second affidavit of Hayden dated November 27, 2000 follows:
         1.        That he is a competent person and the facts set forth herein are true based upon his personal
                   knowledge, information, and belief.
         2.        That in late February or early March, 1996, while seated in a bar in Bardstown, Kentucky
                   a person entered the bar, sat next to him and a lengthy conversation ensued.
         3.        That the man was approximately 5 foot 8 inches to 5 foot 9 inches tall, weighed
                   approximately 185 to 200 pounds and is estimated to be in his late 30's or early 40's and
                   identified himself as John Hunt.
         4.        That he and “John Hunt” talked for a lengthy period of time and Defendant told “Hunt” of
                   his domestic situation, that he was having marital problems and was thinking of getting out
                   of the area for a while.
         5.        That during the conversation “John Hunt” asked Defendant if he would [be] interested in
                   making some money by working for “Hunt” on a farm located in Michigan.
         6.        That after some discussions Defendant agreed and was given some travel money by “Hunt”
                   at the time and was given a specific address for the farm with an agreement that Defendant
                   would go to the location and handle the care taking of the farm during the course of the
                   growing season.
         7.        That it was explained to Defendant that all of the bills for utilities, etc. would be handled and
                   that Defendant would be paid through the summer for all of his expenses and well paid for
                   work he performed on the farm.
         8.        That the conversations set forth above were the only time that Defendant had any personal
                   contact with the man who identified himself as John Hunt.
         9.        That sometime in March or April, Defendant did, pursuant to his agreement, come to the
                                                                                                            (continued...)

                                                             16
Case No. 01-2395/2398/2664/02-1450



      13
           (...continued)
                 farm, obtain the keys to the trailer at the location where he was advised they would be and
                 attempted to open the trailer for the season including making repairs in water lines and the
                 pumping system which were necessitated by damage resulting from freezing over the winter.
      10.        That Defendant stayed at the trailer only a short time and could not complete the repairs
                 because of the odd sizes of the plumbing fixtures in the trailer but did subsequently return
                 to the trailer and hired a plumbing and heating contractor located in Cass City, Michigan to
                 repair the pipes and install a new pump with the work being billed to “John Hunt” and paying
                 for the repairs in cash by Defendant with money which was left at the trailer for him.
      11.        That Defendant did occupy the trailer and maintain the farm during the growing season of
                 1996, staying there or traveling from time to time to his home in Kentucky and spending
                 almost all of the time at the trailer after approximately the end of July 1996 through the end
                 of the growing season.
      12.        That during planting time individuals came to the farm with hand planters and did sow
                 marijuana in the field where it was subsequently located after harvest by police authorities
                 in this case.
      13.        That weather conditions washed out the plantings on two or three occasions requiring that
                 the crop be re-sewn [sic] which was finally accomplished sometime in July 1996.
      14.        That while staying at the trailer, although Defendant had no personal contact with “John
                 Hunt”, money was left from time to time at the trailer for expenses and compensation.
      15.        That while staying at the farm Defendant did order and obtain delivery of diesel fuel and
                 kerosene and paid invoices for these deliveries using money orders obtained at the local post
                 office utilizing the cash left at the trailer.
      16.        That pursuant to his agreement made with the man known to him as John Hunt at their initial
                 meeting, the money orders were placed in the name of John Hunt.
      17.        That further, based upon the instructions of the man known to Defendant as John Hunt, he
                 attempted to sell corn stored at the farm from the previous year to Ernest Bullock as
                 instructed by John Hunt.
      18.        That based upon his oral agreement with John Hunt, Defendant did occupy and possess,
                 maintain and manage the farm including the trailer, barn, and fields during the growing
                 season of 1996.
      19.        That Defendant did exclusively occupy the trailer located at the farm and kept the trailer
                 locked, maintaining exclusive control over it and that when other individuals came to plant
                 or work at the farm they stayed at facilities located within the barn.
      20.        That at the time police came to the location allegedly to check for horses being loose
                 Defendant was temporarily away from the farm but was still occupying the trailer and in
                 possession of the farm.
      21.        That when Defendant met “John Hunt” personally, Mr. Hunt appeared to have substantial
                 cash and Defendant relied upon Mr. Hunt’s representations that if he undertook working for
                 Mr. Hunt in managing the farm then he would be compensated and that this provided an
                 opportunity for Defendant to get away from his personal domestic problems and seemed to
                 be a situation fitting his then existing needs.
      22.        That in following the directions of Mr. Hunt to the farm and all times at the farm, the
                 situation conformed with the agreement that had been reached with Mr. Hunt and Defendant
                 occupied and maintained the farm pursuant to that agreement.
      23.        That in conversations with neighbors, as reflected in the discovery materials already
                 submitted to this Court, Defendant did represent to the neighbors that he was there managing
                                                                                                       (continued...)

                                                         17
Case No. 01-2395/2398/2664/02-1450

        On February 21, 2001, the district court denied the motion for reconsideration and declared

in part as follows:

                 The defendant’s affidavit establishes that he obtained permission to occupy
        the farmhouse and act as caretaker of the farm from a “John Hunt.” The defendant
        met “John Hunt” in a bar in Kentucky in February or March 1996, but had no contact
        with him thereafter. The defendant offers information which suggests that John Hunt
        had some connection with the premises. However, there is nothing in the record at
        this stage of the proceedings that shows John Hunt’s relationship to the property, and
        the record is silent on Mr. Hunt’s authority to allow someone to stay there.

                Further, the defendant avers in his affidavit that his duties of maintaining the
        farm during the growing season of 1996 included sowing marijuana in the field. In
        Minnesota v. Carter, 525 U.S. 83 (1998), the Supreme Court stated that where the
        presence of an individual on someone else’s property was for the purpose of a
        commercial, criminal enterprise, that person does not have a legitimate expectation
        of privacy in the premises which would permit the occupant to enforce his or her
        Fourth Amendment rights.

J.A. 377.

        On May 10, 2001, on the eve of trial, the district court conducted a motion hearing on

Hayden’s persistent efforts to suppress. See J.A. 3821. At the conclusion of that hearing, the district

court again denied the motion to suppress and opined:

                But based upon the information that I have before me, I am still of the view,
        as stated in my memorandum opinion of February 2nd, that the sole purpose of the
        defendant’s occupancy of the farm and the residence was to engage in the grow
        project which is the subject of the indictment. And, as a consequence, I still believe
        that the case is governed by Minnesota -vs- Carter, and not Minnesota -vs-



        13
             (...continued)
                   the farm for “John Hunt” and the neighbors seemed to recognize the name and acknowledge
                   that Defendant’s occupancy of the farm by agreement with Mr. Hunt comported with their
                   understanding of the ownership and use of the property.
        24.        That at all times during his occupancy in management of the farm Defendant acted pursuant
                   to the oral agreement and understanding which he had reached with the man known to him
                   as John Hunt.
J.A. 389-94.

                                                         18
Case No. 01-2395/2398/2664/02-1450

         Olsen.(sic) 14 It is also governed by the other decisions such as United States -vs-
         McCray15 (sic) and United States -vs- Carr,16 which is cited in that opinion.

                  And for those reasons, the court will deny the motion. An order will follow.

J.A. 3841-42 (footnotes added).

         After the conclusion of the trial on June 12, 2001, Hayden filed on August 8, 2001 a post-

verdict motion to suppress, claiming prosecutorial misconduct in the cross-examination of James

Curtis Mattingly and that the suppression of evidence concerning the witness Knowlton prevented




         14
             The case to which the District Court referred is Minnesota v. Olson, 495 U.S. 91 (1990). In Olson, the
Supreme Court found that the respondent Olson had an expectation of privacy as an overnight guest in the home of the
host so as to challenge his warrantless arrest on the basis of his Fourth Amendment rights.

         15
             The case to which the District Court referred is United States v. McRae, 156 F.3d 708 (6th Cir. 1998). The
McRae court affirmed the district court’s conclusion that McRae did not have a legitimate expectation of privacy by
virtue of having stayed a week in vacant premises that he did not own or rent, and thus lacked standing to suppress the
fruits of a warrantless search.

         16
            The District Court refers to United States v. Carr, 939 F.2d 1442 (10th Cir. 1991), which found that the
defendant who moved to suppress evidence seized from a hotel room he was occupying lacked standing because the
room was rented to a third person and no evidence was presented to demonstrate that Carr had an expectation of privacy
in the hotel room.


                                                         19
Case No. 01-2395/2398/2664/02-1450

Hayden from establishing standing.17 Again, the district court gave consideration to the latest effort

to establish standing in a hearing conducted on March 8, 2002, and then declared:




       17
            Relevant portions of Hayden’s post-conviction motion for reconsideration of his motion to suppress follow:


       4.         That discovery materials provided prior to trial to Defense Counsel did not disclose any
                  reference to “James Noltan”.
                  * * *
       8.         That subsequentally (sic) as the trial continued the U.S. Attorney indicated their intent to call
                  witness, "James Knolton", identifying him as the man from Shebonna who had made the
                  original call concerning the horses being loose and that Mr. Knolton was called as witness,
                  testifying on the afternoon of May 29, 2001.
       9.         That Mr. Knolton testified as relevant hereto that he had observed the horses loose at the
                  farm and had called 911 and subsequentally (sic) returned to the farm where he met with
                  police during the time of their initial arrival and search of the premisses (sic) and that he had
                  provided his name and identifying information to the police at the time and had
                  subsequentally (sic) provided care for the horses on a short term basis through arrangement
                  with the police but had not heard further from the police until being served with a Subpoena
                  approximately one month prior to his testimony.
       10.        That on the basis of the testimony of Mr. Knolton, inquiry was made about police reports and
                  a four page report, a copy of which is attached hereto as Exhibit 1, was for the first time
                  provided to Defense Counsel concerning the contact with Mr. Knolton, (which was
                  misspelled, Noltan) and which for the first time disclosed to Defense Counsel the identity of
                  the party who had called police concerning the horses being loose.
       11.        That the existence and identification of Mr. Knolton and the information that he was present
                  at the time of the initial search giving rise to the motions to suppress on behalf of Defendant
                  was critical to Defendant’s ability to properly present this issue to the Court and was
                  wrongfully withheld from Defense Counsel through the course of all of the extended motions
                  and briefing attempting to present this issue on behalf of Defendant.
                  * * *
       19.        That the Government’s position in this cause opposing the motions of Defendant to suppress
                  evidence on the basis of his alleged lack of standing has purposely withheld information from
                  Defense Counsel and this Court impeding Defendant’s ability to present this issue to the
                  Court.
       20.        That the Government in asserting that Defendant failed to meet his burden of proof to
                  establish standing has purposely misled this Court as to the factual circumstances of the
                  purpose and use of the home searched by police and misled this Court that the facts and
                  circumstances fall within the ambit of Minnesota v. Carter when the Government presented
                  full evidence at trial to support a narrative contradicting the facts as represented to the Court
                  in seeking to prevent the exclusion of evidence on the basis of the illegal search and seizures
                  at the residence occupied by Defendant.
       21.        That justice requires that this Court, pursuant to the Local Rule made and provided,
                  reconsider its denial of Defendant’s motions to suppress in light of all of the evidence now
                  before it and hold that the motions should be granted.

                                                            20
Case No. 01-2395/2398/2664/02-1450

                 The Government has filed a response to this motion but the Court will treat
        it as a motion for reconsideration. The United States vs. McRae [case] which I cited
        earlier. The Court of Appeals held that the defendant has the burden of showing that
        a person with authority had given him permission to occupy the premises. That was
        the primary basis for the Court’s ruling. The Court, with all due respect Mr.
        O’Farrell, does not find that there is anything that has been presented since the Court
        has ruled initially and on reconsideration and in a written opinion on reconsideration
        in the Court’s file which changes my view of the ultimate ruling in the case. I do not
        find that there has been a mistake that was made or that there is any palpable error.
        Therefore the motion for reconsideration of the order denying reconsideration of the
        order denying the motion to suppress is likewise denied.

J.A. 3695. The ruling was then memorialized by an order filed on March 11, 2002.18 J.A. 649.

        After our careful review of the record, we find no error on the issue of standing. The district

court had before it the lease agreement purportedly between Mark Robinson and John Hunt of Bad

Axe, Michigan. The lease provided that it was to begin on May 1, 1995 and end on May 1, 1998.

The lease agreement bore the signature of John Hunt. The lease also provided that John Hunt was

not to sublet the premises defined as “fifty-five (55) tillable acres, including the barn and trailer,

located on Argyle Road, Cass City, MI.” J.A. 683. The district court found repeatedly that the

defendant Francis Hayden was unable to demonstrate the right to be on the premises because he had




        18
             The court’s order stated in its entirety as follows:

                         ORDER DENYING DEFENDANT’S POST-TRIAL MOTION
                 On August 20, 2001, the defendant filed a Renewed Motion to Dismiss Enhancement
        Penalties, Second Motion for Reconsideration of Defendant’s Motion to Suppress Evidence, and a
        Motion to Dismiss Indictment on Grounds of Prosecutorial Misconduct.
                 The Court entertained the arguments of the parties through their respective counsel in open
        court on March 8, 2002.
                 Accordingly, for the reasons stated on the record, it is ORDERED that the defendant’s
        Renewed Motion to Dismiss Enhancement Penalties [dkt #313], Second Motion for Reconsideration
        of Defendant’s Motion to Suppress Evidence [dkt #314], and Motion to Dismiss Indictment on
        Grounds of Prosecutorial Misconduct [dkt #316] are all DENIED.

J.A. 649.

                                                             21
Case No. 01-2395/2398/2664/02-1450

no consent of the first party to the lease, i.e., Mark Robinson.19 We affirm the district court’s ruling

finding that Francis Hayden had failed to establish any legitimate right to be on the premises and

thus lacked standing to challenge the warrantless search of what he contended was his trailer

residence.        We find that the district court thoroughly and patiently considered Hayden’s Fourth

Amendment claims, before and after trial, and we find no error in his rulings.

C.      The District Court’s Evidentiary Rulings Under Fed. R. Evid. 801 (d)(2)(E)

       James Austin Mattingly, identified as one of the members of the vast conspiracy, testified

that Ralph Medley, during the year 1995, offered an explanation on how the profits from the

growing of marijuana were to be distributed. In the process, Medley told Mattingly that the owners

of the farm, the “Robinsons,” were to receive the larger share of the profits. See J.A. 1823-26.

Prior to allowing the testimony, the district court reviewed the anticipated testimony, and held:

               I think it’s fair to infer that the efforts that were being engaged in were for
       profit. This was not a science project. I think that because the enterprise was to
       make money, a discussion about dividing the spoils or the profits is exactly within
       the scope of the enterprise and describes information and conversation that is in
       furtherance of that money making enterprise: therefore, the objection is overruled.

J.A. 1809.

       Subsequently, at the conclusion of the trial, the district court ruled that the statements of the

co-conspirators were unconditionally received pursuant to Rule 801(d)(2)(E).20


       19
            See J.A. 683 for a copy of the lease agreement.

       20
            The court stated:

                 Oh, under the applicable standard, I believe the court has to determine by a preponderance
       of the evidence that a conspiracy exists, that the statements were made by individuals in furtherance
       of the conspiracy, and that the defendants against whom the statements were offered had joined or
                                                                                                    (continued...)

                                                         22
Case No. 01-2395/2398/2664/02-1450

         We reject Marcus Robinson’s argument on appeal that the standard of review as to whether

the district court erred in allowing the Rule 801 evidence is subject to de novo review. Rather, we

find the standard of review is abuse of discretion. See United States v. Mack, 258 F.3d 548, 553

(6th Cir., 2001); United States v. Mick, 263 F.3d 553, 566 (6th Cir. 2001).

         We find that the Medley statements, as related by Mattingly, were made during and in

furtherance of the conspiracy.

         In this case, the district court carefully and conservatively applied Rule 801(d)(2)(E) and

excluded certain statements as not admissible under the Rule.21

         We also note that the testimony of co-conspirators Frances Robinson, James Austin

Mattingly and James Steffens,22 along with the testimony of the Michigan residents, when coupled

with testimony regarding the purchase of the 78-acre farm by the Robinson brothers, Chad and

Marcus, along with the subsequent denials of the Robinson brothers, supported the indictment’s

allegations of a conspiracy.

         We find no error in the district court’s admission of testimony pursuant to Rule 801(d)(2)(E).



         20
              (...continued)
         were members of the conspiracy.

                   And the court does make a determination, based upon a preponderance of the evidence that
         the court has heard, that all of those elements are satisfied, and the statements that were conditionally
         admitted – the extent they 801D2(e) – are admitted.

J.A. 3288-89.

         21
          Consequently, the court repeatedly excluded testimony offered under Rule 801(d)(2)(E). See, e.g., J.A. 1844-
62; 2355-72; 2375-78.

         22
           James Steffens, under a grant of immunity, provided extensive testimony regarding his many purchases of
marijuana from co-conspirator Ralph Michael Kough and, in the process, incriminated Marcus and Chad Robinson.

                                                           23
Case No. 01-2395/2398/2664/02-1450

D.     The District Court’s Denial of Marcus Robinson’s Rule 29 Motion as to the
       Conspiracy Count

       The district court took under advisement Marcus Robinson’s Rule 29 motion for a directed

verdict on Count 1 and then overruled the motion in a post-verdict setting. See J.A. 3520-21. That

ruling is challenged on appeal as Marcus Robinson, citing United States v. Campion, 560 F.2d 751,

753 (6th Cir. 1977), contends that his conviction for conspiracy should be reversed because there

was no direct evidence of his participation in the conspiracy and the circumstantial evidence is both

insufficient and equally consistent with innocence.

       Our review of the record finds ample evidence to support the conviction of Marcus Robinson

on the crime of conspiracy as set forth in Count 1 of the third superceding indictment, even though

there was no direct evidence that Marcus Robinson participated in the actual growing and harvesting

of the marijuana in 1995 or 1996 on the Michigan farm.

       The appellant’s reliance on Campion, supra, is misplaced. First, that decision, relating to

a gambling conviction, does acknowledge that circumstantial evidence alone may sustain a guilty

verdict even if it fails to exclude all reasonable hypotheses consistent with a theory of innocence.

The opinion goes on to hold that, when the jury is called upon to choose between “reasonable

probabilities” of equal weight, one innocent and the other criminal, a conviction cannot stand.

Against that background, we set forth a summary of evidence23 pointing to the guilt of Marcus


       23
            A summary of the incriminating evidence follows:

                1. The buyer for the farm (Argyle Road) was identified as Mark A. Robinson on the purchase
       agreement (J.A. 1496) and he paid the balance for the farm of $87,923.58 by a cashier’s check
       remitted by Marcus A. Robinson on an Indiana credit union. J.A. 1497-98.

                                                                                                  (continued...)

                                                       24
Case No. 01-2395/2398/2664/02-1450



      23
           (...continued)
              2. Five grain checks were issued by a grain elevator in February of 1996 and one of the
      checks made payable to John Hunt was deposited in Robinson’s account. J.A. 2600.

              3. Robinson came to the adjacent Stone Road property in July of 1996 in an attempt to
      purchase it. It constituted 40-80 acres with an older mobile home. Robinson left a check for $500 to
      purchase the property but the offer was rejected. J.A. 1673-75.

                4. William Gray, Director of the Sanilac County Drug Task Force, was sent a copy of the
      lease for the Argyle Farm showing it was signed by John Hunt on April 19 and by Robinson on April
      22, 1995. The copy was sent by Marcus Robinson. J.A. 1748-49; 1752.

              5. Robinson told Gray that he had been to the property in November of 1996 and found the
      search warrant affidavit and would come to the property and inspect. J.A. 1761-64.

               6. In 1996, Steffen testified that Kough introduced him to defendant and to Chad Robinson,
      that marijuana was smoked, and that he gave cash to Kough but could not remember whether Chad
      or Marcus was present. J.A. 2221.

               7. Frances Robinson testified that she heard discussions between Chad and Marcus Robinson
      regarding using R Motors as a cover for the sale of marijuana. J.A. 1947-48.

                 8. Marcus Robinson drove cars from R Motors to and from Kentucky with marijuana. J.A.
      1949-50.

               9. Frances Robinson reported that R Motors was a place where Chad sold marijuana but that
      R Motors was not open on Sundays. However, she testified that she saw Marcus Robinson meet at
      the garage on Sunday with the same people to whom Chad sold marijuana during the week. J.A.
      1972-73.

              10. Indiana DMV records listed both Marcus and Chad Robinson as owners of R Motors.
      J.A. 2007.

                11. Marcus Robinson, when interviewed by Gray in January of 1997, brought the copy of
      the lease with John Hunt. J.A. 881-82; 1761; 2694; 2821-22.

               12. Marcus Robinson advertised the farm for rent in local papers in March of 1995 using his
      first name and the R Motors phone numbers in the ads. J.A. 2833-35.

               13. Robinson said that the grain elevator checks deposited in his account were payment
      against arrearage in rent and a payment of rent in advance by John Hunt. J.A. 2838.

                14. During a taping of his statement to Gray, Robinson asked for the tape to be stopped and
      in the hiatus told Gray that the money to purchase Argyle came from a “side account” of which his
      wife was not aware. J.A. 2668. Robinson said he saved money from his Alcoa paycheck through the
      credit union and intended to buy the property which could be hidden from his wife from whom he
      expected to be divorced. J.A. 2669.
                                                                                                   (continued...)

                                                      25
Case No. 01-2395/2398/2664/02-1450

Robinson. We find no reasonable probability of innocence in our review of the record, nor is any

suggested by Marcus Robinson on appeal.

              In conclusion, we find the evidence amply supports the jury’s verdict on Count 1 as to

Marcus Robinson.24

E.       The Multiple Claims of Prosecutorial Misconduct

         The four appellants cite numerous examples of what they label as prosecutorial misconduct.

The district court refused to find any prosecutorial misconduct. Having carefully examined the

claims, we agree. Our analysis follows.

         1.         The James Austin Mattingly Testimony

         A squabble developed between the district court and AUSA Parker regarding the issue of

whether the appellant Dennis Miles should be charged with additional levels in the computation of

the adjusted offense level for his role in the offense. The squabble gave rise to the claim of



         23
              (...continued)
                  15. Robinson was unable to produce a paper which showed an address or phone number for
         John Hunt when he submitted to interview by Gray after the October 1996 discovery of the growing
         operation. J.A. 2669-70.

                   16. There was no confirmation of the fact of a person by the name of John Hunt. However,
         the testifying and cooperating witnesses knew of the use of the name John Hunt but they had no
         contact with any person by the name of John Hunt and believed the name was being used to hide the
         true nature of the drug raising operation on the Argyle Road farm. J.A. 1546-51; 1751-53; 2077;
         2085; 2130; 2669-70; 2700; 3017-18; 3021-22.

                17. Marcus attempted to distance himself from control of the property by use of the fictional
         John Hunt. J.A. 2669-70; 2700; 3009-10; 3017-18; 3021-22.

         24
              Marcus Robinson also contends that the evidence is lacking to support his three convictions for interstate
travel to carry on an unlawful activity, i.e., a business enterprise involving marijuana in violation of 18 U.S.C. § 1952.
He also objects to the testimony regarding his financial records and earnings. We find no error with respect to either
claim.

                                                           26
Case No. 01-2395/2398/2664/02-1450

prosecutorial misconduct in presenting the testimony of cooperating co-conspirator, James Austin

Mattingly.

       The primary witness against Dennis Miles was James Austin Mattingly from Kentucky, who

was also indicted and subject to a ten-year mandatory minimum sentence. However, the government

made a downward departure motion for substantial assistance and he was sentenced prior to the jury

trial of the four appellants. The government recommended a credit of five years, but the district

court departed downward to a three-year sentence. Mattingly testified that he was recruited by

Miles, a friend from Kentucky, to go to the Michigan farm on Argyle Road and assist in planting

and harvesting the marijuana crop in 1995. His testimony, which was extensive and very detailed

about the growing operation, was devastating to Dennis Miles. See J.A. 1776-83; 2070-2151.

       However, James Austin Mattingly became very vague about how his share of the marijuana

crop raised in 1995 (83 pounds) was converted to cash of about $50,000. See J.A. 1872-75. But

after a recess for the testimony of Frances Robinson, Mattingly admitted that he wanted to keep the

name of the person who sold his share of the marijuana secret, and admitted he had not been truthful

on that subject. The fact of the false testimony was developed by the government. See J.A. 2072.

       At the sentencing hearing of Dennis Miles, the government argued for a role in the offense

addition. During that hearing, the district court referred to the testimony of James Austin Mattingly

and stated:

               The question about whether Mr. Miles exercised his supervisory role,
       however, is a different question altogether. We do have the testimony of James
       Austin Mattingly who indicated that he was contacted by others, including Mr.
       Miles, to participate in this activity.




                                                 27
Case No. 01-2395/2398/2664/02-1450

              Mr. Austin Mattingly, I would hasten to add, admittedly gave false testimony
       before this court; the court then is put in a position as to how to evaluate Mr.
       Mattingly’s testimony.

                Mr. Mattingly did describe generally the activities that occurred on the farm
       and his role in the offense, and he described them in broad brush terms which, in
       general, were reliable. When it came down to details, however, and those details had
       to do with protecting other individuals whom he did not want to implicate, such as
       the person who bought the marijuana from him, converted the product into cash, if
       you will -- Mr. Mattingly was -- Austin Mattingly was perfectly willing to shave the
       truth if not outright prevaricate.

               And I conclude that Mr. Austin Mattingly engaged in the same conduct that
       is described by his own activity, that is to minimize. The way to minimize his own
       activity would be to enhance other activity. Therefore, I don’t believe Mr. Austin
       Mattingly’s testimony on the question of Mr. Miles’ participation in the activity as
       reliable.

J.A. 3623-24 (emphases added).

       Subsequently, the district court declined to add levels for role in the offense and sentenced

Miles to the minimum sentence of 121 months. J.A. 3625.

       The government then filed a post-trial motion to resentence James Austin Mattingly because

of his false testimony. J.A. 624. The district court heard that motion on March 8, 2002; he denied

the motion and made statements that energized the defendant Miles in his appeal.

       Specifically, the district court and AUSA Parker stated in passing as follows:

               THE COURT: Is it the Government’s position that Mr. Mattingly testified
       falsely at trial?

               MS. PARKER: I think it is the Government’s position as to the disposition
       of his share of the Marijuana crop, as I indicated in my motion. I think --

              THE COURT: Of course and then he corrected that testimony later; is that
       correct?

               MS. PARKER: Yes.

                                                28
Case No. 01-2395/2398/2664/02-1450

             THE COURT: Other than that, is it the Government’s position that Mr.
      Mattingly testified falsely at trial?

             MS. PARKER: It is not. However, I don’t think that is the bottom line. I
      think the Court has made findings, and based on those findings there is a
      requirement essentially that, based on those findings, that the resentencing is
      necessitated in order to properly apply the law, including the guidelines and the
      provisions of law for departure.

      ***

             MS. PARKER: Your Honor, if it were only the matter on which the
      Defendant ultimately corrected himself, I don’t think that we’d be here. But the
      Court made the finding, and I’m quoting from the transcript:

             “I don’t believe Mr. Austin Mattingly’s testimony on the question of
             Mr. Miles’ participation in the activity as reliable.”

             THE COURT: Should be is reliable.

             MS. PARKER: I know, but it says that and I’m quoting.

             It further says:

             “I do not find Mr. Miles supervised any single individual, although
             I do find that organization probably involved more than five
             participants.”

             That was at odds with Mr. Mattingly’s testimony.

             Further, the Court found:

             “I do not find Mr. Miles exercised any substantial decision-making
             authority or that he recruited accomplices.”

             Again, I think that’s inconsistent with the testimony which was given by Mr.
      Mattingly. And it’s those findings that I think give rise to the motion.

              THE COURT: The Court has reviewed the Government’s motion, and
      frankly I’m somewhat dismayed at the Government’s taking the position that Mr.
      Mattingly testified truthfully at trial, but urging the Court to conclude that he
      violated the provision of the Rule 11 Agreement which required cooperation as a

                                              29
Case No. 01-2395/2398/2664/02-1450

       condition of the reduced sentence and the motion for downward departure that the
       Government made.

               The Government clearly here, to me, is trying to have its cake and eat it too.
       The Court, based upon its own reasons and those articulated in the sentencing
       transcript in the Miles case chose not to rely on the testimony of Mr. Mattingly. The
       Court has that prerogative. It does not compel a finding in this case that Mr.
       Mattingly necessarily violated the Rule 11 Agreement. And I find no inconsistency
       in those positions whatsoever.

               The Government in the Miles case had an obligation to prove its position on
       that sentencing by a preponderance of the evidence. The Court found that the
       testimony of Mr. Mattingly in that regard, given the Court’s observations at trial, did
       not satisfy that requirement.

               Nonetheless, the Government took the position in court, and before the jury,
       that Mr. Mattingly’s testimony is truthful. In fact, the Government has taken that
       position here today; that Mr. Mattingly’s testimony is truthful. It is the Government
       who is advocating that position, yet in the same fashion is requesting that this Court
       declare a violation of the Rule 11 Agreement because Mr. Mattingly is untruthful.

               The Government cannot take that inconsistent position, and I find that there
       is no basis whatsoever to support the allegations in the Government’s motion.

                   Motion for resentencing is denied.

J.A. 3796-97; 3800-03 (emphases added).

       Based on the foregoing events as related to the defendant-witness, James Austin Mattingly,

Dennis Miles has cited three claims of prosecutorial misconduct.25


       25
             These claims are:

       I.          Mr. Miles’ conviction violates due process and/or is against the manifest weight of the evidence where
                   the alleged co-conspirator whose testimony formed the basis of Mr. Miles’ conviction: (1) lied on the
                   stand; (2) was specifically found by the trial court to be unreliable with respect to Mr. Miles’ role and
                   level of participation in the conspiracy; and (3) was accused by the government of lying in a motion
                   to resentence.
       II.         Government misconduct in the presentation of evidence regarding cooperating witness James
                   Austin Mattingly requires reversal of the Mr. Miles’ conviction.
       IV.         Prosecutorial misconduct was so destructive to Mr. Miles’ due process right to a fair trial that
                                                                                                          (continued...)

                                                            30
Case No. 01-2395/2398/2664/02-1450

       The testimony of James Austin Mattingly supports the jury verdict as to guilt. The only

instance of admitted lying was first exposed by the government. The comments of the district court

in denying the government’s position as to the role of Miles in the offense, plus the additional

commentary by the district court on the government’s motion to resentence James Austin Mattingly,

do not require a determination that the testimony of Mattingly was untrustworthy on the very

detailed explanations he provided as to the process of growing marijuana on the farm in 1995 and

the procedures followed to nurture the marijuana seeds, plant the seeds, cultivate and weed the rows

in which the marijuana plants were planted, the construction undertaken in the barn to assist in

drying and packaging the marijuana and the efforts to avoid detection, including using false names.



       After a thorough review of the record, we find no basis for a determination that the

government’s handling of the testimony of James Austin Mattingly constituted prosecutorial

misconduct.

       2.         The Final Argument of Government’s Counsel

       Several aspects of the government’s final argument are raised on appeal as constituting

prosecutorial misconduct and requiring a vacation of the convictions. We review the claims under

a clear error standard of review as no objection was raised during or immediately after the final

arguments and prior to the commencement of deliberations.

                  a.         The Canning Jar Connection

       In her final argument, the AUSA, in summarizing Steffen’s testimony, declared:

       25
            (...continued)
                  it constitutes reversible error.

                                                     31
Case No. 01-2395/2398/2664/02-1450

                He talks about using canning jars, seeing canning jars used to store
                marijuana in those. Canning jars were found. Chad Robinson also
                stores marijuana in canning jars. And he specifically recalls being
                told when he sees a canning jar---particularly with nice buds of
                marijuana in it---he’s told by Mr. Kough that’s from Chad Robinson,
                or at least from Chad.

J.A. 3363 (emphasis added).

        The AUSA admits error in that statement. Chad Robinson failed to object but, on appeal,

indicates that the AUSA made a similar argument in opposing his motion for an acquittal. J.A.

3104-05. Steffen offered no such testimony--called “phantom evidence” by Chad Robinson. On

appeal, the AUSA argues that Chad has failed to show that the misstatement was calculated rather

than based on good faith but “erroneous” recall of the evidence by the prosecutor and then argues

a failure to show that the jury was misled by the misstatements in view of the other evidence

regarding Chad’s long-term involvement in marijuana manufacturing and distribution, his travels

to Michigan from Indiana to participate in the purchase of the Argyle Road Farm and his attempted

purchased of the Stone Road Farm. The issue is whether the departure from the evidence about the

canning jars, even without objection, constitutes prejudicial error requiring a reversal. We find that

the district court repeatedly advised the jury that statements of counsel did not constitute evidence.

See e.g., J.A. 1148-50; 1166-67; 3300-01; and 3351-52.

        In our view, the misstatement concerning the canning jars, in the context of the

overwhelming evidence of Chad Robinson’s marijuana growing efforts, does not rise to the level

of prejudicial error in this case.

                b.      The final argument relating to Frances Robinson’s
                        testimony



                                                 32
Case No. 01-2395/2398/2664/02-1450

       The appellants point out that the testimony of Frances Robinson about the marijuana growing

in the Selvin house in 1992 was stricken as based on a privileged conversation. See J.A. 1933-35.

       Again, there was no objection to the statement in the final argument, nor a motion for a

mistrial, and even though the government appears to admit the mistake as to 1992 in the final

argument, it is difficult to find prosecutorial misconduct in this statement which was simply a part

of the government’s summary during the opening final argument as follows:

              The operation continues into 1992, particularly involving Rex Robinson
       taking over the farm in Sullivan and growing marijuana there. And again, Chad
       Robinson is also involved in manufacturing marijuana.

               In that time he has Frances Robinson prepare a space in the basement, a
       crawlspace of their house, for that purpose, paint the walls white or a light color so
       they reflect the light better for the plants, put in insulation, obviously, to hang lights,
       do things of that nature.

               And she’s instructed on how to start the plants, wrapping them in paper
       towels and soaking them and getting those plants started in that way and then into
       a series of water in cups until they’re ready to be transplanted outdoors.

               Approximately two hundred plants were started that year and also, I believe,
       the next year in 1993. They start in with a group of plants and then they sex them.
       Remember there was testimony by Frances Robinson that if she spotted a plant that
       she thought was male, she was to remove it and set it aside so Chad Robinson could
       be absolutely sure, because he’s the expert on the marijuana cultivation here, to be
       sure that it’s a male plant before it was stripped of its leaves and its bud. Because
       she indicated, they would harvest the male plant anyway, but they would get it out
       of there so it would work in terms of maximizing the marijuana or THC content in
       the female plants.

               That’s totally corroborated by the testimony of Dennis Steger, remember him
       way back when we started this case? Dennis Steger was the individual who came in
       and testified from many, many years in drug investigations, of involvement including
       marijuana, as to how marijuana is cultivated and processed and distributed. And
       sexing a plant is one of the things that he described, and that tends to corroborate or
       confirm the testimony of Frances Robinson.



                                                   33
Case No. 01-2395/2398/2664/02-1450

              And her testimony included that Chad Robinson would transplant the plants
       once they got to a certain size outside, out of doors, to grow. But not on this
       property, not where he lives.

               He was too smart to do that. He would have it go elsewhere. One time he
       even took her to a brush pile and showed where he had transplanted some marijuana
       plants out into a brush pile.

               He also sexed the plants, along with his friends, but ultimately there would
       be a harvest, there would be more marijuana brought in, processed and ready to
       distribute.

               As I indicated, this indoor starting of the plants, from Frances’ testimony,
       was both in ‘92 and ‘93. And also in that time frame, Frances Robinson hears Rex
       and Chad Robinson discussing plants that Rex has already got going elsewhere, and
       Chad Robinson asked: Well, how were they doing? And Rex Robinson effectively
       replied: Well, they’re doing so well, they’re already transplanted outdoors.

J.A. 3355-57 (emphasis added).

       In our view the mistaken reference to the year 1992 does not rise to prosecutorial misconduct

as the reference was not prejudicial.

               c.      The alleged bolstering or vouching as to the witness
                       Steffen

       During AUSA Parker’s final argument she declared as follows:

               Now let’s think a bit about the evidence relating to Kough because that’s
       where you have much of the evidence as to the distribution side of this organization.
       It would do little good to manufacture marijuana, particularly in these quantities, if
       you didn’t have people to distribute. Kough is one of the people that you learn
       about, though he’s not on trial before you, who was involved in distributing the
       marijuana.

               You learned that not only from Frances but also from Jeff Steffen. And,
       interestingly, they cover two different ends of the time frame. Frances, basically,
       after the incident with Russell in September of ‘94 files for divorce and for the most
       part moves away from the family. Steffen, he’s involved with Mr. Kough for an
       extended period of time but he’s involved through August of ‘97 as a source of
       marijuana. His testimony is confirmed and we’ll talk about that in a bit.

                                                34
Case No. 01-2395/2398/2664/02-1450

J.A. 3362 (emphasis added).

        Chad Robinson describes the “confirmed” statement as bolstering or vouching because

earlier, over defense objection, the government had established that Steffen had agreed “to

cooperate and provide truthful testimony” in return for immunity. J.A. 2163.

        In our view, use of the word “confirmed” does not constitute impermissible vouching.

Rather it is more in the sense of corroboration.26

        Finally, we examine the question of whether all of the actions of AUSA Parker, when

considered under the totality of the circumstances, should require a new trial.

        The Sixth Circuit has repeatedly revisited the issue of alleged prosecutorial misconduct in

final arguments. The thorough opinion in United States v. Carroll, 26 F.3d 1380 (6th Cir. 1994),

summarized the existing precedent in the Sixth Circuit and cited United States v. Leon, 534 F.2d

667, 678-83 (6th Cir. 1976), United States v. Bess, 593 F.2d 749, 753-57 (6th Cir. 1979), United

States v. Thomas, 728 F.2d 313, 319-20 (6th Cir. 1984), United States v. Solivan, 937 F.2d 1146,

1150 (6th Cir. 1991), and United States v. Dandy, 998 F.2d 1344, 1353 (6th Cir. 1993). The Carroll

court then concluded:

                Now that we have determined that the prosecutor’s remarks were improper,
        the next step under Leon and Bess is to determine whether the court abused its
        discretion by denying Appellant’s motion for mistrial. If the error was harmless,
        there was no abuse of discretion.

        ***

                 Applying the Leon factors to determine whether the impropriety was flagrant,
        it is clear that remarks of the sort that are at issue in the present case have a tendency

        26
             See United States v. Walker, 155 F.3d 180 (3rd Cir. 1998) for a detailed discussion on impermissible
vouching.

                                                       35
Case No. 01-2395/2398/2664/02-1450

       to mislead the jury and to prejudice the accused. On the other hand, however, these
       improper remarks were isolated, and there is no indication that they were deliberate.
       On balance, we conclude that the impropriety was not flagrant. It follows that the
       Bess test applies, and that the Appellant is entitled to a new trial only if proof of his
       guilt was not overwhelming, he objected to the improper remarks, and the court
       failed to cure the error with an admonishment to the jury. See Bess, 593 F.2d at 757;
       see supra note 6.

                All three of these factors apply to the present case. First, the only evidence
       against Appellant was the testimony of the Patricks; there was no physical evidence
       linking Appellant to cocaine distribution or to the conspiracy. Thus, it is possible
       that the prosecutor’s improper bolstering of the Patricks’ testimony made the
       difference between conviction and acquittal. Second, although one of the
       prosecutor’s worst remarks was not objected to, see supra, note 2, Appellant did
       object to other improper remarks. Third, the court failed to give a prompt and
       adequate curative instruction to the jury. We hold that this failure was an abuse of
       the trial court’s discretion. Appellant is entitled to a new trial untainted by improper
       prosecutorial vouching.

Carroll, 26 F.3d at 1389-90 (internal heading omitted).

       The Carroll opinion set the stage for the subsequent opinion in United States v. Carter, 236

F.3d 777, 783 (6th Cir. 2001), under which we examine the AUSA’s conduct. Carter teaches that,

first, the court must decide whether the prosecutor’s actions and remarks were improper and then,

if they were improper, determine whether the conduct was flagrant. For purposes of the Carter

analysis, we find that AUSA Parker’s isolated factual misstatements were improper. We thus turn

to the issue of flagrancy.

       Carter explains that, in determining flagrancy, the court should consider: “(1) whether the

conduct and remarks of the prosecutor tended to mislead the jury or prejudice the defendant; (2)

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

deliberately or accidentally made; and (4) whether the evidence against the defendant was strong.”

Carter, 236 F.3d at 783 (citing Carroll, 26 F.3d at 1385) (remaining citations omitted). It is our

                                                  36
Case No. 01-2395/2398/2664/02-1450

view that the answers to the four questions are: (1) no; (2) isolated; (3) more likely accidentally; and,

(4) evidence was strong.

        Thus, it is our conclusion that the appellants have failed to make out a case of prosecutorial

misconduct that would require a reversal and new trial.

F.      The Multiple Conspiracy Claims of the Appellants

        The appellant Chad Robinson contends that the proof presented by the government

established more than one conspiracy and appellant Dennis Miles asserts a variance between the

indictment and the proofs offered. At the conclusion of Frances Robinson’s testimony, which was

limited to the Indiana operation, at the request of Hayden, Miles and Chad Robinson, the district

court read to the jury the standard multiple conspiracy instructions. See J.A. 2063-69. The court

repeated the instruction in the final jury instruction, a copy of which was provided to each juror.

The final instruction read:

               Some of the defendants may argue that there were really two or more separate
        conspiracies involving the marijuana or distribution of marijuana. To convict anyone
        of the defendants of the conspiracy charge, the government must convince you
        beyond a reasonable doubt that the defendant was a member of the conspiracy
        charged in the indictment.

                If the government fails to prove this, then you must find that defendant not
        guilty of the conspiracy charge even if you find he was a member of some other
        conspiracy.

               Proof that a defendant was a member of some other conspiracy is not enough.
        But proof that a defendant was a member of some other conspiracy would not
        prevent you from returning a guilty verdict if the government has also proved that
        he was a member of the conspiracy charged in the indictment.

               In deciding whether there was more than one conspiracy, you should
        concentrate on the nature of the agreement. To prove a single conspiracy, the
        government must convince you that each of the members agreed to participate in

                                                   37
Case No. 01-2395/2398/2664/02-1450

       what he knew was a group activity directed toward a common goal. There must be
       proof of an agreement on an overall objective.

               But a single conspiracy may exist even if all the members did not know each
       other or never sat down together or did not know what roles all the other members
       played.

              A single conspiracy may exist even if different members joined at different
       times or the membership of the group changed.

              These are all things you may consider in deciding whether there was more
       than one conspiracy, but they’re not necessarily controlling.

              Similarly, just because there were different subgroups operating in different
       places with many different criminal acts were committed over a long period of time
       does not necessarily mean there was more than one conspiracy.

J.A. 3321-22.

       The evidence, viewed in a light most favorable to the government, establishes an on-going

conspiracy to grow and harvest marijuana for resale, in fields of corn, both in Indiana and Michigan.

The evidence also is sufficient to establish: (1) the connection of the Robinson brothers, Marcus and

Chad, to both growing operations; (2) the connection of Dennis Miles to the growing operation in

Michigan in 1995; and, (3) the connection of Francis Hayden to the growing operation in 1996. The

fact that the evidence did not connect Dennis Miles or Francis Hayden to the operation in Indiana

does not necessarily establish, as a matter of fact or law, separate conspiracies. The issue was

properly presented to the jury. We find no error.

G.     Sentencing Issues

       1.       Dennis Miles

       The District Court submitted separate jury verdict forms as to each of the four appellants.

As to Dennis Miles, the verdict form indicated that the jury had found Miles “guilty of conspiracy

                                                 38
Case No. 01-2395/2398/2664/02-1450

to manufacture 1,000 or more marijuana plants regardless of weight or to distribute or possess with

intent to distribute 1,000 or more kilograms of marijuana.” J.A. 412.

        In spite of that verdict, Miles extrapolates from the testimony of James Austin Mattingly and

argues that the district court erred in finding the offense level for the marijuana attributed to him was

sufficient to call for an offense level 32. Rather, Miles argues that the offense level should have

been reduced to an offense level of 26 calling for a sentencing range of 63-78 months. The

presentence report does not refer as to the specific year of the Sentencing Guidelines Manual that

was used in the case of Miles whose conduct appears limited to the summer of 1995, but the

Sentencing Guidelines Manual, effective November 1, 1994, is the relevant manual.                   That

Sentencing Manual set the offense level for at least 1,000 KG but less than 3,000 KG of marijuana

at 32. See U.S.S.G. § 2D1.1(c)(4).

        On page 95 of the 1994 Guidelines Manual, the following statement sets forth the

equivalency mandates as to marijuana plants:

                In cases involving fifty or more marihuana plants, an equivalency of one
        plant to one kilogram of marihuana is derived from the statutory penalty provisions
        of 21 U.S.C. § 841(b)(1)(A), (B), and (D). In cases involving fewer than fifty plants,
        the statute is silent as to the equivalency. . .

        As a consequence of the equivalency mandates and the jury’s specific finding of 1,000 or

more marijuana plants, we find no error in the district court’s determination that the offense level

for Miles was 32. In that context, we also find that the testimony of James Austin Mattingly, viewed

in a light most favorable to the government, supports the jury’s finding on more than 1,000

marijuana plants as to Miles.




                                                   39
Case No. 01-2395/2398/2664/02-1450

       We observe that the district court carefully explained to the jurors the issue of the weight of

the marijuana or plants attributable to each defendant in the following passage:

               In answering the question about the quantity of marijuana for which a
       defendant is accountable, you should include, but are not limited to, any amounts
       actually possessed or distributed by a defendant in connection with the conspiracy.

               You should also consider any quantities of marijuana that a defendant
       understood would be manufactured, possessed with intent to distribute or to
       distribute in the course of the conspiracy by that defendant or by another member of
       the conspiracy, whether or not charged.

               In determining what a defendant was prepared to do personally in terms of
       total drug quantities, consider that defendant’s statements and actions, and the
       context in which that defendant spoke and acted. Including what the defendant saw
       and heard and what was said and done by other members of the conspiracy during
       the course of the conspiracy.

               In addition, in deciding whether a defendant should be held accountable for
       a controlled substance which that defendant did not personally manufacture, possess
       with intent to distribute or distribute, you should consider amounts which, as part of
       the conspiracy, the defendant sought to manufacture, possess, aid, abet, induce or
       cause another member of the conspiracy to manufacture, possess, aid or abet with
       intent to distribute or to distribute.

              You should also consider the amounts which any other coconspirator
       intended to manufacture, possess with intent to distribute or to distribute if that
       conspirator’s intention was (a) in furtherance of the conspiracy and (b) there was
       reason to believe it to be foreseeable by the defendant.

               The defendant is accountable for any amount of marijuana that he was
       directly involved in, even if he was mistaken as to how much of the controlled
       substance was actually involved.

J.A. 3313-15.




                                                 40
Case No. 01-2395/2398/2664/02-1450

        The district court also provided the jury with a verdict form that enabled the jury to fix the

weight of the marijuana as indicated in the Miles verdict form.27

        We find that the district court carefully handled the issue of the number of plants and the

weight of the marijuana attributable to each appellant, including Miles, and we find no error in the

determination that the offense level for Miles was 32, prompting a sentence of 121 months.

        2.         Francis Hayden

        The government filed a notice of sentencing enhancement due to Hayden’s two prior felony

drug convictions which were entered on September 26, 1980 and November 19, 1990. Both

convictions relate to marijuana offenses. Hayden concedes that he has two prior felony drug

convictions, but argues that both convictions should be excluded for the purpose of calculating his

criminal history. Application Note 1 to U.S.S.G. § 4A1.1(a) provides that a sentence imposed more

than fifteen years prior to the defendant’s commencement of the instant offense is not counted unless

the defendant’s resulting incarceration extended into the fifteen-year period. Under this analysis,

        27
             The completed verdict form as to Count I for Dennis Miles follows:

            X      Guilty of conspiracy to manufacture 1,000 or more marijuana plants regardless of weight or
                   to distribute or possess with intent to distribute 1,000 or more kilograms of marijuana

                   Guilty of conspiracy to manufacture 100 or more but less than 1,000 marijuana plants
                   regardless of weight or to distribute or possess with intent to distribute 100 or more but less
                   than 1,000 kilograms of marijuana

                   Guilty of conspiracy to manufacture 50 or more but less than 100 marijuana plants regardless
                   of weight or to distribute or possess with intent to distribute 50 or more but less than 100
                   kilograms of marijuana

                   Guilty of conspiracy to manufacture less than 50 marijuana plants regardless of weight or to
                   distribute or possess with intent to distribute less than 50 kilograms of marijuana

                   Not guilty

J.A. 412.

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Case No. 01-2395/2398/2664/02-1450

the 1990 conviction would clearly count. The presentence report indicates that the sentence for the

1980 arrest ended in a sentence of one year and one day, but was imposed on July 30, 1984 and,

thus, would also count, as Hayden’s conduct clearly took place in 1996. Thus, it seems Hayden’s

argument is fatally flawed; but, in any event, the imposition of the life sentence in this case is

statutorily driven by the provisions of 21 U.S.C. § 841 (b)(1)(A). We agree with the district court

that Hayden’s due process and equal protection claims, to the extent there is a factual basis for the

arguments, are foreclosed by United States v. Bredy, 209 F.3d 1193, 1997-98 (10th Cir.), cert.

denied, 531 U.S. 897 (2000).

       We find no error in the Hayden sentence.

                                         IV. Conclusion.

       After a careful review, we find no error that would justify setting aside either the convictions

or sentences of the four defendants.

       AFFIRMED.




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