                NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                           File Name: 14a0038n.06

                                        Case No. 12-2218

                          UNITED STATES COURT OF APPEALS
                               FOR THE SIXTH CIRCUIT


                                                                              FILED
UNITED STATES OF AMERICA,                              )
                                                                          JAN 16, 2014
                                                       )
       Plaintiff-Appellee,                             )           DEBORAH S. HUNT, Clerk
                                                       )
v.                                                     )
                                                       )        ON APPEAL FROM THE
KEVIN WATSON,                                          )        UNITED STATES DISTRICT
                                                       )        COURT FOR THE EASTERN
       Defendant-Appellant.                            )        DISTRICT OF MICHIGAN
                                                       )
                                                       )                              OPINION


BEFORE: SUTTON, MCKEAGUE, and WHITE, Circuit Judges.

       HELENE N. WHITE, Circuit Judge. Kevin Watson was convicted by a jury of

conspiracy to commit bank robbery, 18 U.S.C. §§ 317, 3113(a); bank robbery, 18 U.S.C. §§

2113(a), (e); and murder with a firearm during and in relation to a violent crime, 18 U.S.C. §

924(j). He appeals, asserting that the district court erred by admitting into evidence portions of a

recording made by a jailhouse informant as well as hearsay testimony deemed to be an

“admission by silence” on Watson’s part, and, further, that prosecutorial misconduct during

closing arguments and the cumulative effect of these errors denied him a fair trial. We AFFIRM.

                                        BACKGROUND

       This case stems from the 2001 robbery of an armored truck at the Dearborn Federal

Credit Union (DFCU) in Dearborn, Michigan. The robbers killed a guard and stole $204,000
Case No. 12-2218
United States v. Watson

and the guard’s gun. The robbery went unsolved for almost three years, until a jailhouse

informant provided police with information.      Eventually Watson and six others—Timothy

O’Reilly, Khayyam Wilson, Norman Duncan, Archie Broom, Earl Johnson, and Henry

Matthews—were arrested and charged.

       The jailhouse informant, Baron Nix-Bey, was incarcerated in the Michigan Department

of Corrections with O’Reilly. After he overheard O’Reilly discussing the DFCU robbery, he

contacted the Detroit FBI hoping that the information he provided might merit some reward.

The FBI arranged for Nix-Bey to record conversations between himself and O’Reilly using a

recording device hidden in a portable radio.     During one of these conversations, O’Reilly

described the 2001 robbery in detail, naming several of his coconspirators. Watson and his

codefendants were then indicted. Johnson was tried first and found guilty. This court affirmed

in United States v. Johnson, 581 F.3d 320 (6th Cir. 2009).         O’Reilly was also tried and

convicted. Duncan, Broom, Wilson, and Matthews pleaded guilty.

        Broom, Wilson, and Matthews testified against Watson at his trial. The story that

emerges from their testimony is that Wilson, Johnson, and Watson had known each other since

they met at work in 1994. In 2001, Johnson told Wilson and Watson of his idea to rob an

armored truck. Watson then recruited O’Reilly and Duncan, both of whom had previously

worked at Guardian Armored Security, an armored truck company. Johnson recruited Matthews

during the final few days before the robbery, believing that a sixth person at the scene would be

helpful. Broom was a friend of Duncan’s who worked for U-Haul. Broom was not present for

the robbery, but he provided the group access to a U-Haul van that they used during the robbery.

       On December 12, 2001, the six men—Watson, O’Reilly, Duncan, Wilson, Johnson, and

Matthews—made a first attempt to rob the armored truck. They met at Duncan’s and drove to


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Case No. 12-2218
United States v. Watson

the DFCU parking lot to wait for the armored truck to arrive, but aborted the robbery when the

van’s lights unexpectedly began flashing. Two days later, they returned and committed the

robbery. The men again met at Duncan’s house. They arrived at the DFCU at around 1:00 a.m.

and waited with the engine running until the armored truck arrived at 2:30 a.m. Watson,

Duncan, and O’Reilly left the van first, each carrying a shotgun. According to the plan, they

were supposed to make the guards get down on the ground, while the other three men ran to

collect the bags of money. Within seconds after Watson, Duncan, and O’Reilly left the van,

Wilson and Matthews heard gunshots. Matthews and Johnson grabbed the money while Wilson

got in the driver’s seat. Once everyone made it back to the van, they drove away. Matthews

learned on the drive home that a guard had been shot. The men divided up the proceeds at

Johnson’s house that night.

       Nix-Bey testified regarding his conversations with O’Reilly and the recording was played

for the jury. In the recorded conversation, O’Reilly discussed the 2001 robbery and stated that

he and Watson shot the guard. O’Reilly also discussed a second armored-truck robbery that he

committed in 2003 with Duncan and Broom.

       Derrick Smith, LaTonya Smith, and Jerome Crutcher also testified for the prosecution.

Derrick Smith was close with Earl Johnson at the time of the bank robbery. He testified that

Johnson invited him to participate in the robbery but Smith did not take him seriously. After

reports of the robbery surfaced in the media, Johnson admitted to Smith that he had been

involved. Smith also testified that shortly after the robbery, he heard a conversation between

Watson and Johnson during which Watson threatened to kill a coconspirator who had been

“flashing money around,” and who Watson feared had snitched to the police. LaTonya Smith

was Duncan’s girlfriend in 2001, and his wife at the time of Watson’s trial. She testified that she


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United States v. Watson

witnessed a conversation shortly after the robbery during which Watson made no comment when

he heard Duncan ask O’Reilly if O’Reilly saw Watson shoot the guard. The district court

admitted her testimony about the conversation over Watson’s objection as an admission by

silence on Watson’s part. Jerome Crutcher had met Watson through his brother. Crutcher

testified that he witnessed Watson attempt to sell his brother a shotgun shortly after the robbery

and heard Watson state that he had used the gun when he “had to lay a guard down” during a

robbery.

         Watson presented his ex-wife’s testimony that he was at home sleeping when the robbery

occurred. He testified on his own behalf, and several of Watson’s acquaintances and friends

served as character witnesses. On November 22, 2011, the jury convicted Watson on all counts.

                                            DISCUSSION

         Watson argues that (1) the trial court should have excluded as irrelevant and unfairly

prejudicial portions of O’Reilly’s recorded conversation with Nix-Bey; (2) he was denied a fair

trial when the trial court admitted as an “admission by silence” LaTonya Smith’s testimony that

Duncan bragged to O’Reilly that Watson shot the guard; (3) he was denied a fair trial when

during closing arguments the prosecution replayed excerpts of O’Reilly’s conversation with Nix-

Bey as though O’Reilly were responding to the prosecution’s questions; and (4) the cumulative

effect of these alleged errors denied him a fair trial.

    I.      Admissibility of the Recording Excerpts

    Watson argues that the district court should have excluded the portions of O’Reilly’s

recorded conversation with Nix-Bey during which O’Reilly discussed the 2003 bank robbery that

he committed with Duncan and Broom, and O’Reilly “discussed the ways in which he prepared

for his robberies and his knowledge and expertise in robberies of armored trucks.”


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Case No. 12-2218
United States v. Watson

       We review the decision to admit the recording excerpts for plain error. See United States

v. Deitz, 577 F.3d 672, 688 (6th Cir. 2009) (“[W]here a defendant fails to object at trial or ‘does

not state the specific ground for his evidentiary objection, and that ground is not apparent from

the context, we review a newly raised objection under the plain-error standard.’”) (quoting

United States v. Seymour, 468 F.3d 378, 384 (6th Cir. 2006). Watson contends that we should

review for an abuse of discretion because the district court admitted the evidence over his

objection. But as the Government notes and the record evinces, Watson made other objections to

the admissibility of the recording before the district court, but he did not make this one.

Specifically, Watson filed a motion in limine objecting to admission of the recorded conversation

in its entirety as a violation of the Confrontation Clause1, and objecting to two of O’Reilly’s

statements during the conversation2 as insufficiently self-incriminating to warrant an exception

to the rule against hearsay. But the motion included no arguments regarding the relevance of or

prejudice caused by O’Reilly’s discussion of the 2003 robbery and his knowledge and expertise

in robbing armored trucks, and Watson did not raise the objection during trial.


1
 The district court considered and rejected a materially identical objection to the admission of the
recording at Johnson’s trial, and this court affirmed. See Johnson, 581 F.3d at 325. Addressing
the objection in this case, the district court applied this court’s reasoning in Johnson, finding the
Confrontation Clause inapplicable because O’Reilly’s statements were nontestimonial, i.e., “‘a
reasonable person in [O’Reilly’s] position would not have anticipated his statement being used
against [Watson] in investigating and prosecuting the crime.’” See Order at 3 (quoting United
States v. Cromer, 389 F.3d 662, 675 (6th Cir. 2004)); see also Johnson, 581 F.3d at 325
(“Because O’Reilly did not know that his statements were being recorded and because it is clear
that he did not anticipate them being used in a criminal proceeding against Johnson, they are not
testimonial, and the Confrontation Clause does not apply.”).
2
 The two statements were (1) one in which O’Reilly stated that Watson had “killed many
people” before he shot the guard during this robbery; and (2) one in which O’Reilly explained
how he and Watson shot the guard and in what sequence. The Government stipulated to
redaction of the first statement but not the second. The district court admitted the second over
Watson’s objection that the statements were not sufficiently self-inculpatory. Watson does not
challenge the ruling on appeal.
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Case No. 12-2218
United States v. Watson

       When conducting plain-error review, we ask (1) whether error occurred; (2) whether the

error was plain; (3) if so, whether it affected the defendant’s substantial rights; and (4) even if all

of those factors exist, whether the error “seriously affected the fairness, integrity or public

reputation of judicial proceedings.” United States v. Jones, 108 F.3d 668, 670 (6th Cir. 1997).

We find plain error “‘only in exceptional circumstances’ and only where the error is so plain that

the trial judge was ‘derelict in countenancing it.’” United States v. Cowart, 90 F.3d 154, 157

(6th Cir. 1996) (quoting United States v. Cox, 957 F.2d 264, 267 (6th Cir. 1992)). The burden to

prove plain error belongs to the defendant claiming it. United States v. Dominguez Benitez, 542

U.S. 74, 82 (2004).

       Watson contends that the statements were irrelevant and unfairly prejudicial because they

had nothing to do with Watson’s culpability for the 2001 robbery; rather they served only to

“create a link between Mr. Watson and O’Reilly and O’Reilly’s previous crimes.” Watson also

argues that the statements were confusing because “there are points at which O’Reilly does not

make clear to which robbery he is referring and at some points he discusses details of the two

robberies in conjunction.”     This made it more likely, he contends, that the jury would be

“confused and misled to improperly consider details of the 2003 robbery as relating to the DFCU

robbery and Mr. Watson’s guilt.”         He argues that the prejudicial effect of the error was

compounded because he did not have the opportunity to cross-examine O’Reilly to clarify “to the

jury that Mr. Watson was not a participant in the 2003 robbery.”

       Watson has not demonstrated plain error. Evidence is relevant if it has any tendency to

make a fact of consequence more or less likely than it would be without the evidence. Fed. R.

Evid. 401. A district court may exclude relevant evidence “if its probative value is substantially

outweighed by a danger of . . . unfair prejudice, confusing the issues, misleading the jury, undue


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Case No. 12-2218
United States v. Watson

delay, wasting time, or needlessly presenting cumulative evidence.”          Fed. R. Evid. 403.

O’Reilly’s statements showing knowledge of armored trucks were not without relevance.

Wilson, Matthews, and Mary Perry3 testified that O’Reilly and Duncan had worked at an

armored truck company and the Government argued that Wilson recruited them to help plan the

robbery precisely because of that experience. O’Reilly’s statements regarding the 2003 robbery

and his preparation for that robbery were not relevant to any fact of consequence in Watson’s

trial, and arguably were prejudicial because by making O’Reilly look worse, they made Watson

look worse for associating with him. See United States v. Lopez-Medina, 461 F.3d 724, 741–42

(6th Cir. 2006) (“Evidence that demonstrates only “guilt by association,” such as evidence of a

family member’s criminal history, is irrelevant to the question of a defendant’s actual guilt.”).

But even assuming that all of the statements that Watson claims should have been excluded were

admitted in error, Watson has not established that the error was plain or that it affected his

substantial rights, i.e., that it “affected the outcome of the district court proceedings.” United

States v. Olano, 507 U.S. 725, 734. This is so for several reasons.

          First, evidence about the 2003 robbery had already been presented to the jury before

O’Reilly’s statement was played. Broom testified that he, Duncan, and O’Reilly committed the

2003 robbery.      Watson did not object to Broom’s testimony and, in fact, used Broom’s

participation in the robbery to impeach his credibility. Second, it is unlikely that the jury was

misled or confused by discussion of the two robberies. The prosecution made clear during direct

examination of Broom that Watson was not involved in the second robbery and that it occurred

in 2003, after the robbery at issue here. And, contrary to Watson’s argument, during the

recorded conversation, O’Reilly and Nix-Bey consistently and clearly distinguished the two


3
    Perry supervised O’Reilly and Duncan when they worked at Guardian Armored Security.
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United States v. Watson

robberies. O’Reilly repeated several times in response to prompting from Nix-Bey that only he,

Broom, and Duncan were involved in the 2003 robbery, and that Watson was not involved.

Third, although Watson could not cross-examine O’Reilly to clarify that Watson did not

participate in the 2003 robbery, he had the opportunity to cross-examine Nix-Bey and Broom to

clarify the point. And finally, fourth, the prosecution presented substantial other evidence of

Watson’s guilt, including the remainder of O’Reilly’s conversation with Nix-Bey; Wilson’s,

Broom’s, and Matthews’s testimony describing Watson’s participation; and Crutcher’s and

Derrick Smith’s testimony regarding Watson’s inculpatory post-robbery statements. For all of

these reasons, we find that Watson has not shown that any error in admitting the recording

excerpts was plain or that it affected his substantial rights.

    II.        Admission by Silence

          Watson next argues that he was denied a fair trial where the Government was able to

elicit testimony from LaTonya Smith as an “admission by silence” on Watson’s part, and

referred to Watson’s silence as an admission during closing arguments. The disputed testimony

came just after Smith testified that she was at Duncan’s house in December 2001when she first

learned of the robbery:

          Q:      So you were at the house.

          A:      Yes, I was at the house and I was sitting at the table and Norman [Duncan]
                  and O’Reilly and Mr. Watson, they was all at the door in front of the door
                  and I overheard Norman say that did you see my cousin shoot him or to
                  that sort.

          Q:      And was Watson standing there when Duncan said that?

          A:      Yes.

          Q:      Did Watson hear Duncan say that?

          A:      He was standing right there.

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Case No. 12-2218
United States v. Watson


       Q:      Did he deny that he---

       A:      He didn’t say anything.

       Q:      How soon after the robbery did this occur?

       A:      Two or three days I think, three days.

Watson had moved to exclude Smith’s testimony about Duncan’s question as hearsay. The

Government argued that Watson’s silence in the face of the question rendered it an adoptive

admission and the district court agreed.

       “We review a district court’s decision to admit evidence over a hearsay objection de

novo.” United States v. Jinadu, 98 F.3d 239, 244 (6th Cir. 1996). A statement that would

otherwise be inadmissible hearsay is admissible against a party if it is a statement “the party

manifested that it adopted or believed to be true.” Fed. R. Evid. 801(d)(2)(B). A party may

manifest an adoption of a statement through language, conduct, or silence. Jinadu, 98 F.3d at

244. To determine whether silence indicates adoption of a statement, “the primary inquiry is

whether the statement was such that, under the circumstances, an innocent defendant would

normally be induced to respond, and whether there are sufficient foundational facts from which

the jury could infer that the defendant heard, understood, and acquiesced in the statement.” Id.

       The district court did not err by admitting Smith’s testimony. First, there were sufficient

facts for a jury to infer that Watson heard and understood when Duncan asked O’Reilly if he saw

his “cousin” shoot the guard. Broom had testified earlier that Duncan used the term “cousin” to

refer to Watson, and Smith testified on cross-examination that Duncan did not use that term for

anyone else. Smith testified that Watson was “standing right there” when Duncan posed the

question. Although she also testified in cross-examination that Watson was only in the room for



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United States v. Watson

“a couple of minutes,” she did not contradict her testimony that Watson was in the room when

Duncan posed the question.

       Second, an innocent person “would . . . be induced to respond” if, as happened here,

someone stated in his presence that he shot the victim of an unsolved murder committed a few

days prior. Jinadu, 98 F. 3d at 244. Watson argues, citing United States v. Williams, 445 F.3d

724, 735 (4th Cir. 2006), that Duncan’s question to O’Reilly was not sufficiently accusatory for

Watson’s silence to be an admission. See id. (finding the question “did you kill somebody?”

insufficiently accusatory to render the defendant’s silence an adoptive admission). But Duncan’s

question to O’Reilly is distinguishable from the question in Williams; it included as its premise

that Watson killed the guard and only asked whether O’Reilly saw it.            See id. (finding

distinguishable questions in which there is an “accusatory statement implicit in the question,”

e.g., asking why, not whether, the defendant killed someone).

       Watson also argues that it was error to construe Duncan’s question as an adoptive

admission because the question was not directed at Watson. But a statement or question need

not be directed at the defendant for it to be admissible as the defendant’s admission. See, e.g.,

United States v. Grunsfeld, 558 F.2d 1231, 1237 (6th Cir. 1977) (defendant’s silence when

introduced to third party as his codefendant’s “business partner” was an adoptive admission);

United States v. Hoosier, 542 F.2d 687, 688 (6th Cir. 1976) (defendant’s silence in face of

girlfriend’s statement to third party regarding “sacks of money” in their hotel room was an

adoptive admission).

       Watson further argues that he “is fully entitled to be free from compelled self-

incrimination under the Fifth Amendment,” and that applying the adoptive admission concept in

this context infringes on that right. But there is no blanket prohibition against finding an


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United States v. Watson

admission by silence in the criminal context. See Advisory Committee’s Notes on Fed. R. Evid.

801(d)(2)(B) (noting that Supreme Court decisions “relating to custodial interrogation and the

right to counsel appear to resolve [Fifth Amendment] difficulties. Hence the rule contains no

special provisions concerning failure to deny in criminal cases.”). And Watson does not identify

any authority for the contention that a defendant’s Fifth Amendment rights are implicated when

evidence of his silence during a conversation unconnected to any police investigation, custody,

or interrogation is introduced against him at trial. Cf. Combs v. Coyle, 205 F.3d 269, 283 (6th

Cir. 2000) (the Fifth Amendment’s privilege against self-incrimination extends “to persons in

custody or charged with a crime[,]” and suspects “questioned during the investigation of a

crime”).

       Further, were we to find Smith’s testimony inadmissible, we would find the error

harmless because the jury heard substantial other evidence that Watson shot the guard. Crutcher

testified that he heard Watson state affirmatively that he “had to lay a guard down” during a

robbery. O’Reilly described the shooting and Watson’s role in it in detail during the recorded

conversation. Wilson testified that when the conspirators discussed the shooting as they drove

away from the scene, Watson stated that “the guy went for his gun.” In addition, Derrick Smith

testified that he heard Watson threatening to kill the coconspirator who Watson suspected had

snitched. In light of these more explicit admissions, we find it unlikely that Latonya Smith’s

testimony affected the outcome of Watson’s trial. See McCombs v. Meijer, Inc., 395 F.3d 346,

358 (6th Cir. 2005) (the harmless-error standard requires reversal when the appellate court “lacks

a fair assurance” that the error did not affect the outcome of the trial) (internal quotation marks

omitted).




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Case No. 12-2218
United States v. Watson

    III.      Prosecutorial Misconduct

           Watson’s prosecutorial misconduct allegation stems from the Government’s use of the

O’Reilly recording in closing arguments. Specifically, during closing arguments the prosecutor

asked a series of questions about the crime, as though he were questioning O’Reilly, e.g., “How

many people were there, Mr. O’Reilly?” After each question, the prosecutor played an excerpt

from the recording as O’Reilly’s response. Watson argues that presenting O’Reilly’s statements

in this manner constituted prosecutorial misconduct warranting a new trial because “it created

the illusion that O’Reilly himself was testifying . . . and likely caused the jurors to unduly

consider [his] statements as factual responses.”4

           We find no error. Watson cites Abela v. Martin, 380 F.3d 915 (6th Cir. 2004), to support

the argument, but Abela is of no assistance to him. In Abela, the prosecutor “invented” a

conversation during closing arguments in which he attributed statements to the defendant. Id. at

929. Noting that it would be misconduct for a prosecutor to argue facts not in evidence, e.g., to

offer as direct quotes statements that were never made, we rejected the contention that it had

happened in that case because, in context, it was clear that the prosecutor did not purport to quote

from an actual conversation. Id. (finding no error because “the prosecutor prefaced this part of

his argument by advising the jury: ‘and exactly what was said probably we’ll never know but

probably went something like this . . . .’”). So too here. The excerpts played were O’Reilly’s

actual statements in his conversation with Nix-Bey. They had already been admitted and played

for the jury. Nix-Bey had testified to the context in which the statements were made, and during

4
 In his reply brief, Watson changes his argument and contends that using the recording in this
manner violated the Confrontation Clause. Watson forfeited any Confrontation Clause challenge
on appeal by not raising the issue in his opening brief. United States v. Johnson, 440 F.3d 832,
845–46 (6th Cir. 2006) (“‘[A]n appellant abandons all issues not raised and argued in its initial
brief on appeal.’”) (citation omitted). We further note that Watson did not object to the argument
during closing.
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United States v. Watson

closing arguments the prosecutor urged the jury to listen to the entire tape during deliberations.

Under these circumstances, it is difficult to imagine that the jury could have been misled into

thinking that O’Reilly made the statements in the context of an interrogation.

   IV.      Cumulative Error

         Finally, Watson argues that the combined effect of the foregoing alleged errors

compromised the fundamental fairness of his trial. “Errors that might not be so prejudicial as to

amount to a deprivation of due process when considered alone, may cumulatively produce a trial

setting that is fundamentally unfair.” Walker v. Engle, 703 F.2d 959, 963 (6th Cir. 1983). We

reject the argument. We have scarcely found that any of Watson’s allegations amount to error,

or prejudiced Watson, and, as noted, the Government presented substantial, unchallenged

evidence of his guilt. See United States v. Walker, 506 F. App’x 482, 488 (6th Cir. 2012) (“A

trial need not be ‘perfect’ to withstand a due process challenge.”). Accordingly, we find that the

cumulative effect of any errors did not render Watson’s trial fundamentally unfair.




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