                       NOT RECOMMENDED FOR PUBLICATION
                               File Name: 20a0508n.06

                                          No. 19-6074

                          UNITED STATES COURT OF APPEALS
                               FOR THE SIXTH CIRCUIT                                  FILED
                                                                                Aug 28, 2020
                                                                            DEBORAH S. HUNT, Clerk
UNITED STATES OF AMERICA,                         )
                                                  )
        Plaintiff-Appellee,                       )       ON APPEAL FROM THE
                                                  )       UNITED STATES DISTRICT
v.                                                )       COURT FOR THE WESTERN
                                                  )       DISTRICT OF KENTUCKY
ERIC TODD,                                        )
                                                  )
                                                                   OPINION
        Defendant-Appellant.                      )
                                                  )



       Before: MOORE, CLAY, and McKEAGUE, Circuit Judges.

       CLAY, Circuit Judge. Defendant Eric Todd appeals his conviction and sentence for

conspiring to possess with intent to distribute 50 grams or more of methamphetamine in violation

of 21 U.S.C. §§ 841(a) and 846, raising three claims for relief. Todd first argues that the

government suppressed favorable surveillance video evidence from a White Castle restaurant

where one of the drug sales allegedly involving Todd occurred, in violation of Brady v. Maryland,

373 U.S. 83 (1963). Todd next contends that the district court abused its discretion by permitting

the prosecution to question a witness at trial regarding Todd’s prior incarceration and unrelated

use of a firearm, in violation of Federal Rule of Evidence 404(b). Last, Todd argues that his

sentence violates his Fourteenth Amendment right to equal protection because his criminal history

score reflected two possession of marijuana convictions that allegedly would not have occurred

but for Todd’s African American race. For the reasons that follow, we affirm.
No. 19-6074, United States v. Todd


                                         BACKGROUND

   A. Todd’s Brady Claim

       In May 2019, a jury convicted Todd of conspiring to sell 50 grams or more of

methamphetamine as part of a large drug trafficking organization (“DTO”) responsible for

trafficking drugs between Detroit, Michigan and Louisville, Kentucky. The prosecution’s theory

at trial was that Todd sold drugs to a confidential informant, R.L., on two separate occasions as

part of the DTO. Trial testimony established that, in the first controlled sale on April 20, 2016,

R.L. purchased approximately one ounce (23 grams) of methamphetamine from Todd. In the

second controlled sale on May 20, 2016, R.L. purchased approximately a half pound (223.1 grams)

of methamphetamine from Todd in a White Castle parking lot in Louisville.

       1. The White Castle Video

       Prior to trial, Todd requested that the prosecution disclose any surveillance video footage

from the White Castle where the May 20, 2016 sale occurred. However, the prosecution failed to

disclose the video evidence in its initial discovery and upon later requests. A few weeks prior to

trial, Todd’s counsel filed a motion in limine seeking to prevent the prosecution from entering any

evidence that it had failed to disclose. By the time of the parties’ final pretrial conference on May

15, 2019, the prosecution still had not disclosed the White Castle video. The prosecution finally

disclosed the White Castle video to defense counsel on the evening of Friday, May 24, 2019, just

a few days before Todd’s trial began on Tuesday, May 28, 2019. Trial testimony established that

the prosecution had possessed the video for at least two years prior to trial. Defense counsel stated

that he “spen[t] a considerable amount of time reviewing [the video] over the weekend”




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No. 19-6074, United States v. Todd


immediately prior to trial and that it cut into his “normal trial preparation.” (Trial Tr., R. 100, Pg.

ID 804.)

       Unbeknownst to defense counsel prior to its disclosure, the video does not show Todd

present at the May 20 sale. In fact, Todd is not seen at any point in the approximately seven hours

of video footage. Instead, the video appears to show another person, who Todd says is government

witness Antonio Jackson, carrying out the sale. In the video, Jackson parks a car in the White

Castle parking lot and then walks into the White Castle. He can be seen talking on the phone with

someone as he enters the White Castle. Still on the phone, Jackson sits at a table and looks out of

the window in the direction of the car he parked. In another portion of the video, the government’s

confidential informant, R.L., is seen talking on the phone in the parking lot and walking towards

the car that Jackson parked. Jackson then pops the trunk of the car and R.L. places the money in

the trunk of the car and retrieves the methamphetamine. Another government witness and member

of the DTO, Velise McAtee, is then seen interacting with Jackson following the drug sale.

       2. The Trial Evidence

       The prosecution’s key witnesses at trial were ATF Special Agent Chase Anastasio,

confidential informant R.L., and other members of the DTO including Kenneth Westbay, Antonio

Jackson, and Velise McAtee.

       Jackson and McAtee testified on day two of Todd’s trial as members of the larger DTO.

Jackson testified that his uncle is one of the major players in the DTO, and that “basically the

whole situation” regarding the May 20 deal “was told by my uncle.” (Trial Tr., R. 99, Pg. ID 610

(Jackson Test.).) He said that he was the “chosen one” of the DTO, that the other members trusted

him with everything, and that he “knew everything” because “[he] was the one right there.” (Id. at


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No. 19-6074, United States v. Todd


607, 614–15.) He testified that he did not know Defendant Eric Todd. He claimed that he did not

know who put the drugs in the car or took the drugs out of the car during the May 20 sale, and said

that he was simply following orders from his uncle.

        Government witness Velise McAtee also admitted to her role in the DTO and the May 20

sale in particular. She said that she often rented cars for one of the lead members of the DTO and

for Antonio Jackson, and that she would use those cars to transport drugs. She admitted that she

rented the car involved in the May 20 transaction and that she gave the car to Jackson in order to

facilitate the drug sale. McAtee also testified that she did not know Todd.

        Despite having received the White Castle video a few days prior to trial, defense counsel

did not use the video in his cross examinations of Jackson and McAtee, even though they are the

people supposedly shown in the video. Instead, Todd’s cross examinations of both Jackson and

McAtee were extremely brief. In his cross examination of McAtee, defense counsel asked a total

of five questions which reaffirmed that McAtee did not know Todd, she had never spoken to him,

and she had not seen him at the May 20 sale. Todd’s cross examination of Jackson was the same—

it reaffirmed that Jackson did not know Todd, and had never spoken to him or seen him until the

day of trial.

        Government witnesses Agent Anastasio and confidential informant R.L. testified on the

third day of trial. Their testimony, taken together, was the heart of the prosecution’s case.

        Anastasio testified that he was investigating Kenneth Westbay as part of the broader DTO

investigation. On April 20, 2016, Westbay contacted R.L. (not knowing that she was a confidential

informant) and requested a ride to a drug sale that Westbay had set up. R.L. gave Westbay a ride

to the drug sale, where, upon arriving, they got into a car with an “unidentified black male,” whom


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No. 19-6074, United States v. Todd


R.L. later identified as Todd. Todd sold approximately one ounce of methamphetamine to

Westbay, which the DEA’s lab report later concluded was around ninety-nine percent pure.

       There was no physical evidence linking Todd to the April 20 sale, but R.L. testified at trial

that Todd was the person who sold Westbay the drugs in that transaction. She identified him in the

courtroom as the person involved, and she identified his voice on the audio recording from the

transaction. Westbay also identified Todd as the person from whom he purchased an ounce of

methamphetamine on April 20, 2016.

       R.L. testified that following the April 20 deal, she passed by Todd again one day on the

street. She spoke with Todd, and he gave her a phone number. Using that phone number, law

enforcement set up another controlled buy with Todd in which R.L. arranged to purchase one-and-

a-half pounds of methamphetamine for $4,500. At trial, R.L. identified Todd’s voice on the phone

calls setting up the May 20 deal. She testified that, on the day of the sale, she exchanged a series

of text messages with Todd in which he directed her to several different locations before meeting

to purchase the drugs. Agent Anastasio testified that this was likely a method of ensuring that R.L.

was not being followed.

       R.L. finally ended up in a White Castle parking lot. She testified that she was on the phone

with Todd when she arrived. She said to Todd, “I see you,” referring to the car that she thought he

would be in. (Trial Tr., R. 100, Pg. ID 679 (R.L. Test.).) However, she said that she was “not

positive” that Todd was actually in the car. (Id.) R.L. then testified that Todd told her to put the

money in the trunk of a car that was in the parking lot. She walked over to the car, and someone

popped the trunk open. She put the money in the trunk of the car and removed the

methamphetamine. There was no further circumstantial or direct evidence linking Todd to the


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No. 19-6074, United States v. Todd


White Castle sale—only R.L.’s identification of his voice and the phone number of the person with

whom she was speaking, which R.L. testified was the phone number Todd had given her earlier.

        Todd’s counsel used seven screenshots from the White Castle video during his cross

examinations of Anastasio and R.L. During his cross examination of Anastasio, Todd’s counsel

showed Anastasio the screenshots from the video that appear to show Jackson running the deal.

He asked Anastasio if the person in the screenshots was Jackson, and Anastasio ambiguously

replied that it was.1 Anastasio also testified that he did not know the identities of the people shown

in the video until trial. That is, he did not know until trial that the people shown in the video were

government witnesses Jackson and McAtee. On redirect examination, Anastasio testified that

Jackson was probably a runner for the DTO, and that nothing about the White Castle video was

inconsistent with the government’s view that Todd was overseeing the May 20 drug sale.

        Todd’s counsel also used those same screenshots in his cross examination of R.L. He

showed her the images and then described what they portrayed. R.L. admitted that she had never

heard of Jackson or McAtee until that day and had never seen their pictures. She also admitted that

the screenshots did not show Eric Todd, and she said that this made her doubt whether she was, in

fact, talking to Todd during the May 20 deal.

        Based on the lack of physical evidence tying Todd to the drug sale, the defense moved for

a judgment of acquittal following its case in chief, which the district court denied. Defense counsel

also moved for a mistrial under Brady v. Maryland, 373 U.S. 83 (1963), in light of the



        1
          At first, Anastasio unambiguously stated that the person in the video was Jackson. (Trial Tr., R.
100, Pg. ID 773 (Anastasio Test.).) However, a bit later he stated, “If that is—I don’t know if that’s Antonio
Jackson or not. I mean, you’re telling me that’s Antonio Jackson. Somebody else told me that’s Antonio
Jackson. If that is Antonio Jackson, that is the same Antonio Jackson that testified here. Yes, sir.” (Id.)

                                                      6
No. 19-6074, United States v. Todd


prosecution’s failure to timely disclose the White Castle video, a motion which the district court

also denied. Todd now challenges the district court’s Brady ruling on appeal.

   B. Todd’s Federal Rule of Evidence 404(b) Claim

       At an earlier point in the trial, the government called witness S.C., a person who had known

Todd for several years and referred to him as “like family.” (Trial Tr., R. 99, Pg. ID 595 (S.C.

Test.).) The prosecution sought to use S.C.’s testimony to establish that Todd had sold drugs to

her brother, Steven, during the conspiracy. However, S.C. consistently denied that she remembered

saying anything about Todd to ATF agents in a prior interview. When the prosecution attempted

to refresh her recollection, the following exchange occurred:

       Q.      Do you remember saying that [Steven] was supplied with heroin by Eric
               Todd from the summer of 2014 until December of 2015, that Todd only
               supplied heroin to [Steven] and would drop off approximately three to four
               ounces of heroin every other week, that Todd would then front the heroin
               to [Steven]. Do you know what that means “front”?
       A.      Uh-huh.
       Q.      Okay. What does it mean?
       A.      Credit.
       Q.      Right. That he would give heroin to [Steven] and [Steven] would later pay
               him back; is that correct?
       A.      No. Because I don’t recall him even—I don’t recall Steven, like, really
               messing with him. Steven messed with other people, so—and they locked
               up on our vaca[tion], so I don’t know.
       Q.      You said that Todd served time in federal prison and that he would usually
               have a gun with him and that you had observed that. Does any of that refresh
               your memory?
       A.      No. Because I didn’t hang out with him on the streets.

(Id. at 600–01.)

       Todd’s counsel objected to the question regarding Todd’s prior prison sentence and use of

a firearm as soliciting inadmissible evidence of prior bad acts under Federal Rule of Evidence

                                                7
No. 19-6074, United States v. Todd


404(b). The district court overruled the objection because S.C. had not responded affirmatively.

The court stated, “I mean, if she had confirmed it we would definitely remedy that, but I’m not

sure there’s something to remedy here if she didn’t respond in the affirmative.” (Id. at 604–05.)

Later, the parties revisited the issue and the district court again found that the questioning and

S.C.’s testimony “was more of an identification thing—in that particular instance that you were

trying to refresh her recollection” and that “she denied it . . . all and it was kind of gone with that.”

(Trial Tr., R. 100, Pg. ID 648.) But the district court stated that it certainly did not want any

evidence regarding Todd’s prior prison sentence to come in again, saying “[t]here’s been no notice

of it and I think it would be unduly prejudicial.” (Id.) Todd now appeals the district court’s

evidentiary ruling with regard to S.C.’s cross examination.

    C. Todd’s Sentence

        Todd’s Presentence Report (PSR) assigned an overall offense level of 32 and a criminal

history category of V. The resulting guidelines range was 188 months to 235 months’

imprisonment with a statutory mandatory minimum of ten years’ imprisonment. In calculating

Todd’s criminal history score, the PSR assigned him two criminal history points for two

misdemeanor possession of marijuana convictions respectively that each occurred in 2007 as a

result of traffic stops. The first stop occurred because Todd was supposedly driving carelessly. The

second stop occurred because Todd turned without using a turn signal and his license plate was

not illuminated.

        In his sentencing memorandum, Todd recognized that his criminal history score was

technically correct but he urged the court to consider the racial disparity in enforcement that causes

African American people to be prosecuted for possessing small amounts of marijuana at a much


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No. 19-6074, United States v. Todd


higher rate than white people. Todd included a newspaper article from August 2019 that describes

a Jefferson County Attorney’s Office announcement that it would no longer prosecute

misdemeanor possession of marijuana charges arising from traffic stops given the racial disparity

in policing. The article stated that an investigation revealed that, in 2017, the Louisville

Metropolitan Police charged Black drivers with marijuana possession at six times the rate of white

people, despite national studies showing that both groups use marijuana at approximately the same

rate.

        At sentencing, Todd’s counsel raised this objection and asked the Court to consider the

racial disparity in its consideration of the 18 U.S.C. § 3553(a) factors, essentially arguing that

Todd’s criminal history score would likely be lower if he was white. He asked for a downward

variance to the mandatory minimum sentence of 120 months’ imprisonment. The district court did

not explicitly take into account Todd’s equal protection argument in its analysis of the § 3553(a)

factors. It imposed a within-guidelines sentence of 188 months’ imprisonment (i.e., fifteen years)

followed by five years of supervised release. Todd now challenges that sentence on appeal as a

violation of his right to equal protection under the Fourteenth Amendment.

                                          DISCUSSION

    A. Todd’s Brady Claim

        In Brady v. Maryland, the Supreme Court held that a defendant’s right to due process is

violated when the prosecution suppresses material evidence that would be favorable to the

defendant in a criminal case. 373 U.S. at 87. When a defendant raises a Brady challenge in the

district court, as here, we apply de novo review to the district court’s Brady determination. United

States v. Crayton, 357 F.3d 560, 568–69 (6th Cir. 2004). The elements of a Brady violation are:


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No. 19-6074, United States v. Todd


(1) the government suppressed evidence, (2) the suppressed evidence is favorable to the defendant,

and (3) the evidence is material (i.e., the defendant was prejudiced as a result of the suppression).

Strickler v. Greene, 527 U.S. 263, 281–82 (1999); O’Hara v. Brigano, 499 F.3d 492, 502 (6th Cir.

2007). This case revolves around the materiality prong.

       “[E]vidence is ‘material’ within the meaning of Brady when there is a reasonable

probability that, had the evidence been disclosed, the result of the proceeding would have been

different.” Cone v. Bell, 556 U.S. 449, 469–70 (2009). “A ‘reasonable probability’ of a different

result is . . . shown when the government’s evidentiary suppression ‘undermines confidence in the

outcome of the trial.’” Kyles v. Whitley, 514 U.S. 419, 434 (1995) (quoting United States v. Bagley,

473 U.S. 667, 678 (1985)).

       When determining whether evidence is material under Brady, we must keep in mind three

admonishments from the Supreme Court. First, Brady materiality is not a “more likely than not”

test. See Kyles, 514 U.S. at 434 (“The question is not whether the defendant would more likely

than not have received a different verdict with the evidence, but whether in its absence he received

a fair trial, understood as a trial resulting in a verdict worthy of confidence.”); accord Wearry v.

Cain, 136 S. Ct. 1002, 1006 (2016). Second, Brady materiality is not a sufficiency of the evidence

test. See Kyles, 514 U.S. at 434–35 (“A defendant need not demonstrate that after discounting the

inculpatory evidence in light of the undisclosed evidence, there would not have been enough left

to convict.”). And third, once we discover a Brady violation, there is no need for us to perform

harmless error review. See id. at 435 (“[W]e note that, contrary to the assumption made by the

Court of Appeals, once a reviewing court applying Bagley has found constitutional error there is

no need for further harmless-error review.” (citation omitted)). The “prejudice” that results from a


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No. 19-6074, United States v. Todd


Brady violation is the denial of a person’s due process right to a fair trial, meaning one that results

in a verdict worthy of confidence. Id. at 434–35.

        The typical Brady case contemplates that the prosecution completely failed to disclose

favorable evidence to the defendant. See, e.g., Cone, 556 U.S. at 451; Kyles, 514 U.S. at 422. But

we have also recognized that even belated disclosure of Brady material before or during trial can

deprive of a defendant of his due process rights. See Joseph v. Coyle, 469 F.3d 441, 472 (6th Cir.

2006); see also United States v. Farley, 2 F.3d 645, 654 (6th Cir. 1993) (stating that “due process

requires only that disclosure of exculpatory material be made in sufficient time to permit the

defendant to make effective use of that material at trial”). In such circumstances, the defendant

faces a higher hurdle than in a failure to disclose case, however, because we consider the effect of

the delay “as part of the collective materiality inquiry.” Joseph, 469 F.3d at 472. Accordingly, a

defendant in a belated disclosure case must show that the “delay itself cause[d] prejudice,” in

addition to showing that the evidence was otherwise material to his innocence or guilt. O’Hara,

499 F.3d at 503 (quoting United States v. Bencs, 28 F.3d 555, 561 (6th Cir. 1994)).

        Todd’s Brady claim fails under this standard. While Todd has a fairly compelling argument

that the White Castle video was pertinent to his innocence or guilt, given that it was a video of the

very transaction for which the government was prosecuting him, Todd has failed to show that the

“delay itself cause[d] prejudice.” Id. This is because Todd was able to use the video at trial. In fact,

he used seven screenshots from the video in his cross examinations of the government’s two key

witnesses, R.L. and Agent Anastasio. Both of these witnesses testified that Todd was not present

in the video, and Agent Anastasio testified that the person in video was Jackson. The screenshots




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No. 19-6074, United States v. Todd


simply failed to convince the jury that Todd was not overseeing the May 20 deal, notwithstanding

the fact that he is not shown in the White Castle video.

       We are not in a position to second guess that judgment, especially where the video is not

necessarily inconsistent with the government’s trial theory. As the government points out, this was

a sophisticated DTO and it is possible that Jackson’s uncle was giving instructions to Jackson and

McAtee while Todd was giving instructions to R.L. Stated differently, Jackson’s uncle may have

been focused on supplying the drugs while Todd was focused on coordinating with the buyer. And

given that this was a sophisticated drug deal, it may have been beneficial to keep certain members

of the transaction in the dark about who else was involved. Jackson even testified at trial that he

did not know every member of the DTO and that his uncle “only allowed me to know what he

wanted me to know.” (Trial Tr., R. 99, Pg. ID 609 (Jackson Test.).)

       Todd responds that he was prejudiced by the delayed disclosure because, if the video had

been timely disclosed, he “would have had time to discover the identity and significance of

Antonio Jackson and other individuals much earlier than he did.” (Appellant’s Br. at 13.) Thus, in

Todd’s view, he could have “potentially interview[ed] Jackson and others about their presence and

activity in the video, and their knowledge of the transaction,” and could have sought Jackson’s

phone records “to find out who [Jackson] was talking to and potentially prove that he was talking

to the confidential informant.” (Id.) But if Todd wanted more time to investigate with regard to

Jackson, he could have asked for a continuance. See, e.g., Joseph, 469 F.3d at 472 (declining to

find prejudice in part because “if the defense needed more time, it could have asked for a

continuance”); United States v. Holloway, 740 F.2d 1373, 1381 (6th Cir. 1984) (similar).




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No. 19-6074, United States v. Todd


       To be sure, Todd’s counsel moved for a mistrial on Brady grounds in the district court. But

he only did so after the trial had occurred, notwithstanding that Todd’s counsel received the video

at least three days prior to trial. Because Todd had ample time to review the video before trial to

determine if a Brady violation had occurred, we must infer from his decision to proceed to trial

without objection that he believed he had enough time to make use of the evidence. See, e.g.,

United States v. Hicks, 495 F. App’x 633, 640 (6th Cir. 2012) (“Defense counsel’s failure to

request a continuance indicates that he had adequate time to prepare a defense.”); Crayton, 357

F.3d at 569 (“Any disadvantage that a defendant might suffer because of the tardiness of [Brady]

material can be cured by asking for a recess.”). This comports with our interests in judicial

economy and fairness because it prevents a defendant from choosing to withhold objection to a

constitutional violation that occurs at trial and then seeking to raise that objection afterwards,

depending on how the trial goes. See Wainwright v. Sykes, 433 U.S. 72, 88–90 (1977) (discussing,

in the habeas context, the many purposes of the contemporaneous objection rule, including to

prevent defense lawyers from “sandbagging”).

       Moreover, defense counsel had time to review the video by the time that Jackson and

McAtee (the two people shown in the video) testified on day two of the trial. And yet, Todd’s

counsel chose not to question Jackson or McAtee about the video or to enter the screenshots of the

video into evidence during their cross examinations. If Todd wanted to know who Jackson was on

the phone with, (see Appellant’s Br. at 7), his counsel had the opportunity to ask him during cross

examination. And even if defense counsel did not realize the relevance of such a question at the

time that Jackson testified, he could have asked to recall Jackson or McAtee after he had entered

the video screenshots into evidence on day three. See, e.g., United States v. Davis, 306 F.3d 398,


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No. 19-6074, United States v. Todd


421 (6th Cir. 2002) (holding that a defendant failed to show prejudice in part because the defendant

chose not to recall a witness who could have testified about the Brady evidence); United States v.

Spry, 238 F. App’x 142, 149 (6th Cir. 2007) (same). Under such circumstances, Todd cannot show

that “the delay itself cause[d] prejudice.” O’Hara, 499 F.3d at 503.

       We should note, however, that our decision should not be taken to condone the

government’s conduct here. The White Castle video was clearly relevant to Todd’s charge, and we

can see no good reason why the government failed to disclose it either in its initial discovery or

afterwards. In short, it was inexcusable for the government to wait until four days before trial to

disclose key evidence pertaining to the charge against the Defendant. However, the government

did ultimately disclose the video prior to trial, and defense counsel was able to effectively use

screenshots from the video when cross examining the government’s two primary witnesses.

Defense counsel’s use of the video at trial, coupled with the fact that defense counsel failed to ask

for a continuance before or during trial or to recall witnesses even after reviewing the video, causes

us to affirm.

   B. Todd’s Federal Rule of Evidence 404(b) Claim

       Todd next argues that the prosecution’s questioning of witness S.C. violated Federal Rule

of Evidence 404(b). Rule 404(b) provides that, except for some permitted uses, evidence of a prior

bad act is generally not admissible to prove a person’s character in order to suggest that the person

acted in accordance with that character on a particular occasion. Fed. R. Evid. 404(b); accord

United States v. Mandoka, 869 F.3d 448, 456 (6th Cir. 2017). If the government seeks to use Rule

404(b) evidence for one of the permitted uses, then it must “provide reasonable notice of the




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No. 19-6074, United States v. Todd


general nature of any such evidence that the prosecutor intends to offer at trial.” Fed. R. Evid.

404(b)(2)(A).

       We review a district court’s evidentiary ruling for an abuse of discretion. Mandoka, 869

F.3d at 457. More specifically, when reviewing a district court’s Rule 404(b) determination, we

apply a tripartite framework: we review “(i) the factual question of whether the prior bad acts

occurred; (ii) the legal question of whether the evidence was offered for an admissible purpose;

(iii) and the discretionary question of whether the district court permissibly applied the Rule 403

balancing test.” Id. Under this framework, “reversal is only proper if the district court committed

a legal error by admitting the prior acts evidence for an impermissible purpose, relied on clearly

erroneous facts in finding that the prior acts occurred, or abused its discretion in weighing the

evidence’s probative and prejudicial value under Rule 403’s balancing test.” Id.

       Todd’s Rule 404(b) challenge fails because the district court did not admit any evidence of

Todd’s prior bad acts. Instead, the prosecutor asked S.C. about a statement that she supposedly

made to an ATF agent before trial (a statement that related to Todd’s prior incarceration) in an

effort to refresh her recollection. S.C. did not reply, and the prosecutor’s question was not

evidence. Because the question remained unanswered, no evidence of prior bad acts was admitted.

See United States v. Miller, 562 F. App’x 272, 303 (6th Cir. 2014) (“[N]o actual violation of the

rules of evidence occurred here, as a lawyer’s unanswered question is not evidence.”).

       That said, we must once again condemn the prosecutor’s conduct here. The reference to

Todd’s prior incarceration—even if made as a fleeting remark in an effort refresh a witness’

memory—strikes us as inappropriate. However, Todd does not assert a prosecutorial misconduct

claim on appeal or otherwise argue that the prosecutor’s question presented constitutional


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No. 19-6074, United States v. Todd


problems.2 See, e.g., Greer v. Miller, 483 U.S. 756, 765 (1987) (recognizing that a prosecutor’s

unanswered question made in the presence of the jury can amount to prosecutorial misconduct

when it “so infec[ts] the trial with unfairness as to make the resulting conviction a denial of due

process”). But see United States v. Griffin, 437 F.3d 767, 769 (8th Cir. 2006) (declining to find

prosecutorial misconduct in part because “the questions went unanswered” and “the court

promptly instructed the jury to disregard the questions”); United States v. Johnson, 302 F.3d 139,

151 (3d Cir. 2002) (similar). Because Todd brings his claim as an evidentiary challenge only, and

no evidence of Todd’s alleged prior bad acts was ever admitted, we affirm.

    C. Todd’s Sentence

        In his final claim, Todd appeals his within-guidelines sentence of 188 months’

imprisonment. Todd argues that his sentence violates his Fourteenth Amendment right to equal

protection because his criminal history score reflected two possession of marijuana convictions

that allegedly would not have occurred but for the fact that Todd is African American. We review

constitutional challenges to a sentence de novo. United States v. Jones, 569 F.3d 569, 573 (6th Cir.

2009). The government wrongly argues that we should review Todd’s sentence only for plain error

because, according to the government, Todd did not preserve his equal protection argument in

response to the district court’s Bostic question. See United States v. Bostic, 371 F.3d 865 (6th Cir.

2004). This is incorrect.


        2
           Todd’s first and only mention of prosecutorial misconduct occurred in his reply brief when he
was attempting to distinguish this case from the government’s reliance on United States v. Miller, 562 F.
App’x at 302. This is insufficient to preserve a prosecutorial misconduct claim for our review. See Island
Creek Coal Co. v. Wilkerson, 910 F.3d 254, 256 (6th Cir. 2018) (“Time, time, and time again, we have
reminded litigants that we will treat an ‘argument’ as ‘forfeited when it was not raised in the opening brief.’”
(citation omitted)). Todd’s opening brief clearly raised this issue as an evidentiary challenge under Rule
404(b) only. Therefore, any prosecutorial misconduct claim is forfeited.

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No. 19-6074, United States v. Todd


          In Bostic, this Court announced “a new procedural rule, requiring district courts, after

pronouncing the defendant’s sentence but before adjourning the sentencing hearing, to ask the

parties whether they have any objections to the sentence just pronounced that have not previously

been raised.” Id. at 872 (emphasis added). The purpose of the Bostic question is to “ensure[] that

parties may object to the court’s reasoning or failure to address a particular argument” and

“afford[] the district court an opportunity to correct errors right away,” thereby facilitating

appellate review. United States v. Simmons, 587 F.3d 348, 354 (6th Cir. 2009) (citing Bostic, 371

F.3d at 873). However, we do not require parties to reiterate arguments that they have already

made in response to the Bostic question in order to preserve them for appellate review. See, e.g.,

id. at 355 (“[I]t is unnecessary for a party to repeat previously made objections in order to secure

[a] lower standard of review on appeal.”); United States v. Kamper, 748 F.3d 728, 740 (6th Cir.

2014) (“No explicit objection after the Bostic inquiry was required here because Kamper had

already argued and the district court had explicitly addressed the issue.”).

          In the present case, Todd presented his equal protection argument for a downward variance

both in his sentencing memorandum and at the sentencing hearing. The district court rejected

Todd’s argument and imposed a within-guidelines sentence. In response to the Bostic question,

defense counsel responded, “Nothing than other—other than previously noted, Your Honor.”

(Sent. Hr’g Tr., R. 96, Pg. ID 406.) Because Todd had already presented the issue he now raises,

there was no need for an additional Bostic objection. Simmons, 587 F.3d at 355; Kamper, 748 F.3d

at 740.

          Todd’s constitutional argument is that his criminal history score (and therefore his

guidelines range) would have been lower if he was white, rather than African American, because


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No. 19-6074, United States v. Todd


he would not have been convicted for his misdemeanor possession of marijuana offenses. Todd

supports this argument with a newspaper article and statements from the Jefferson County

Attorney’s Office that allegedly show a racial disparity in policing.

       In other contexts, the Supreme Court “has permitted consideration of race to offset negative

effects of past discrimination and to combat harmful stereotypes.” United States v. Grisanti, 943

F.3d 1044, 1053 (7th Cir. 2019) (citing Grutter v. Bollinger, 539 U.S. 306, 328–30 (2003)

(upholding a public law school’s affirmative action program)). However, the Sentencing

Guidelines explicitly provide that race should not be considered in the determination of a sentence.

See U.S.S.G. § 5H1.10. Nevertheless, the Sentencing Guidelines do not overcome constitutional

requirements.

       We rejected a race-based mitigation argument similar to Todd’s in United States v. Givhan,

740 F. App’x 458 (6th Cir. 2018), in accordance with § 5H1.10. In Givhan, the defendant argued

that he should receive a reduced sentence based on “racial disparities in the prosecution of sex

trafficking violations.” Id. at 466. We held that that where the defendant “does not argue that the

district court improperly considered his race when imposing his sentence [but] argues instead that

the district court improperly failed to consider his race during sentencing—something it is not

permitted to do,” there was no constitutional error. Id. at 467. The same is true here under currently

applicable case law and the factual circumstances presented by this case.

                                          CONCLUSION

       For the reasons given above, we AFFIRM Todd’s conviction and sentence.




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