                       NOT RECOMMENDED FOR PUBLICATION
                               File Name: 17a0446n.06

                                        No. 16-2169
                                                                                FILED
                         UNITED STATES COURT OF APPEALS                     Jul 28, 2017
                              FOR THE SIXTH CIRCUIT                    DEBORAH S. HUNT, Clerk


UNITED STATES OF AMERICA,                             )
                                                      )
       Plaintiff-Appellee,                            )
                                                      )
                                                            ON APPEAL FROM THE
              v.                                      )
                                                            UNITED STATES DISTRICT
                                                      )
                                                            COURT FOR THE EASTERN
SENECA BARNES,                                        )
                                                            DISTRICT OF MICHIGAN
                                                      )
       Defendant-Appellant.                           )
                                                      )



BEFORE: CLAY, GRIFFIN, and THAPAR, Circuit Judges.

       GRIFFIN, Circuit Judge.

       A jury convicted Seneca Barnes of conspiring to commit bank fraud in violation of

18 U.S.C. §§ 1344 and 1349. The district court sentenced her to 37 months’ imprisonment.

On appeal, Barnes argues the government’s counsel engaged in prosecutorial misconduct, and

claims the district court erred in calculating her attributable loss amount. Because neither

contention has merit, we affirm.

                                             I.

       Barnes served as a mid-level manager in a scheme to cash counterfeit payroll checks.

Terence Randolph and Torin Maddox led the operation. They manufactured and distributed the

counterfeit checks and recruited bottom-level participants to cash them. Barnes drove these

recruits to various banks in Michigan, Ohio, and Pennsylvania to pass the checks and handled
No. 16-2169, United States v. Barnes


much of the communication between the leaders and the check cashers. Five of the bottom-level

participants testified against her at trial.

        After the government presented its proofs against Barnes, the defense rested without

calling any witnesses. In his closing statement, defense counsel questioned why the prosecution

failed to present several witnesses who, under the government’s theory, could have also

incriminated Barnes:

        Now, let’s talk about the witnesses. Who among the witnesses told you that
        Seneca Barnes joined into a conspiracy or an agreement to commit bank fraud?
        Well, not Terence Randolph. He didn’t say that. Torin Maddox did not tell you
        that. You heard the name of Curtis Smith-Thompson . . . . He didn’t tell anybody
        that as far as we know. Scottie Mack who apparently now there is some
        allegation that we never heard during the trial that because Seneca Barnes had a
        false I.D. with Chadorea Mack, that somehow that’s related to Scottie Mack who
        is arrested sometime in November when Miss Barnes is not around. Somehow or
        another, that’s supposed to support the idea that Scottie Mack, I guess, would tell
        you that Seneca Barnes joined into some kind of conspiracy voluntarily and
        knowingly. We haven’t heard that. . . . .

        Now, the government says, wait a minute . . . . There is someone who said that
        Seneca Barnes had voluntarily and willingly joined into and knowingly joined
        into a conspiracy and that person is LeQuisha. Government says, well, yeah,
        LeQuisha Jones, we think it’s Jones, now we think it’s Smith. . . .

        Did LeQuisha Jones say that to you? Do we see her? Do we know where she is?
        Do we even know who she is or what her last name really is?

Counsel for the government briefly responded to this argument in her rebuttal: “Well, first, let

me say, that the defense has the exact same subpoena power as the United States. If something

was missing, they have the same subpoena power as the United States.”

        Defense counsel moved for a mistrial, claiming the prosecutor’s remarks improperly

shifted the burden of proof to Barnes. The district court denied the motion. It also denied

defendant’s request for a “cautionary comment” regarding the government’s burden to prove its




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No. 16-2169, United States v. Barnes


case beyond a reasonable doubt, a duty which, even defense counsel agreed, was already

“generally covered” by the standard jury instructions.

       Ultimately, the jury convicted Barnes, and the district court sentenced her to 37 months’

imprisonment—a sentence based in part on the court’s finding that Barnes was responsible for

$89,880.85 in losses. Defendant now appeals.

                                                II.

       Barnes first argues the prosecutor engaged in misconduct when she informed the jury

“that the defense has the exact same subpoena power as the United States.” Our court applies a

two-step inquiry to resolve questions of prosecutorial misconduct. “First, we determine whether

prosecutorial statements allegedly constituting misconduct were improper. Next, if we find

impropriety, we ‘then determine whether the improprieties were flagrant such that a reversal is

warranted.’” United States v. Eaton, 784 F.3d 298, 309 (6th Cir. 2015) (citation omitted). In this

case, Barnes never makes it past step one.

       Defendant argues that by nodding to her subpoena power, the prosecutor improperly

shifted the burden to defendant to prove her innocence. But “when the defense has questioned

why the prosecution has not called a particular witness, the prosecution may respond that the

defense also could have called that witness to testify.” United States v. Farrow, 574 F. App’x

723, 728 (6th Cir. 2014); see also United States v. Newton, 389 F.3d 631, 635, 638 (6th Cir.

2004) (defense counsel’s complaint that the government did not play a tape recording for the jury

“opened the door” to the prosecution’s response that defendant “could have played it himself”)

vacated on other grounds, 546 U.S. 803 (2005). In this context, the prosecutor’s response is “a

fair comment” designed to rebut the insinuation that the witness’s testimony would have been




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No. 16-2169, United States v. Barnes


unfavorable to the government—not an improper attempt to shift the burden of proof. See

United States v. Clark, 982 F.2d 965, 969 (6th Cir. 1993).

       Still, Barnes insists the prosecutor’s response was improper, because her attorney

commented only on the “quantum” of the government’s proofs, and not its reasons for failing to

call particular witnesses. But the record belies this claim. Defense counsel did not just list

missing witnesses; he implied that the government failed to call them because their testimony

would not have supported a conviction: “Who among the witnesses told you that Seneca Barnes

joined into a conspiracy or an agreement to commit bank fraud?” he asked. “Well, not Terence

Randolph. He didn’t say that. Torin Maddox did not tell you that.” Neither did Scottie Mack or

Curtis Smith-Thompson, two individuals who, according to defense counsel, should have been

able to testify against Barnes because they were connected to her “[s]omehow or another.”

When it came to LeQuisha Smith—a woman one co-conspirator said had introduced her to

Barnes—defense counsel questioned whether Smith even existed: “Do we see [Smith]? Do we

know where she is? Do we even know who she is or what her last name really is?”

       Questions like these go not only to quantity but to substance; they insinuate that the

government strategically withheld evidence that may undercut its case against defendant. See,

e.g., Newton, 389 F.3d at 635 (“The defense asked the jury to consider that the government did

not play the tape for them, insinuating it was exculpatory and that was the reason why the tape

was not played.”). Defense counsel cannot be faulted for attempting to leverage the absence of

testimony into a jury finding of reasonable doubt. But where his remarks also “impl[y] . . . that

the government failed to call a witness because the evidence would have been favorable to the

defendant,” he “open[s] the door” to the government’s rebuttal. Id. at 638; see also United States

v. Johnson, 583 F. App’x 503, 508–09 (6th Cir. 2014).


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No. 16-2169, United States v. Barnes


          “It is not improper for a prosecutor to note that the defendant has the same subpoena

powers as the government, particularly when done in response to a defendant’s argument about

the prosecutor’s failure to call a specific witness.” Farrow, 574 F. App’x at 728 (quoting United

States v. Hernandez, 145 F.3d 1433, 1439 (11th Cir. 1998) (brackets omitted)). Because that is

all the prosecutor did here, her statement was not improper.

          And even if it was, it was not likely to mislead the jury. Immediately before she made

the challenged statement, the prosecutor acknowledged the government must establish Barnes’

guilt beyond a reasonable doubt, telling the jury that the government “welcomes that burden,”

and “would not ask you to convict on less than proof beyond a reasonable doubt.” Further, the

district court instructed the jury several times “that the government had the burden of proof as to

all the elements of its case against the defendant.” Clark, 982 F.2d at 969. In so doing, the court

made clear “that the defendant has no obligation to present any evidence at all, or to prove to you

in any way that she is innocent. It is up to the government to prove that she is guilty, and this

burden stays on the government from start to finish.” We presume the jury followed those

instructions in rendering its decision. Zafiro v. United States, 506 U.S. 534, 540 (1993).

          Because the prosecutor’s statement was not improper, there is no need for us to evaluate

whether it was flagrant. Eaton, 784 F.3d at 309. Defendant’s prosecutorial misconduct claim

fails.1

                                                III.

          Defendant also challenges her 37-month sentence, arguing the district court erred in

finding her responsible for $89,880.85 in losses. We review a district court’s factual findings

          1
         As a related matter, defendant claims the district court abused its discretion in declining
to give the jury a “cautionary comment” regarding the burden of proof. She argues such an
instruction was necessary to cure the prosecutor’s improper statement. Because the prosecutor’s
statement was not improper, we need not address this claim.
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No. 16-2169, United States v. Barnes


concerning the amount of loss for clear error and its methodology for calculating loss de novo.

United States v Triana, 468 F.3d 308, 321(6th Cir. 2006).

       “Section 2B1.l of the sentencing guidelines explains how to calculate losses arising from

counterfeit offenses.” United States v. Mickens, 453 F.3d 668, 670 (6th Cir. 2006). It assigns the

defendant a base offense level, then requires an increase to that level dependent upon the amount

of loss attributable to the defendant, with a greater loss corresponding to a greater increase. Id. at

671; see also U.S.S.G. §§ 2B1.1(a)(1) & (b)(1). The commentary to § 2B1.1 defines loss as “the

greater of actual loss or intended loss.” U.S.S.G. § 2B1.1, cmt. n.3(A). Actual loss is “the

reasonably foreseeable pecuniary harm that resulted from the offense,” and intended loss is “the

pecuniary harm that the defendant purposely sought to inflict,” including “intended pecuniary

harm that would have been impossible or unlikely to occur (e.g., as in a government sting

operation, or an insurance fraud in which the claim exceeded the insured value).” Id. cmt.

n.3(A)(i) & (ii). “Logically, intended loss must include both the amount the victim actually lost

and any additional amount that the perpetrator intended the victim to lose.” Mickens, 453 F.3d at

672–73 (quoting United States v. Carboni, 204 F.3d 39, 47 (2d Cir. 2000)).

       The presentence investigation report (PSIR) determined Barnes was responsible for an

intended loss of $89,880.85—a figure representing the checks her co-conspirators successfully

cashed, as well as those police later found in Barnes’ vehicle which they did not successfully

cash. With a loss of more than $40,000 (and less than $95,000), the PSIR applied a six-level

increase, see U.S.S.G. § 2B1.1(b)(1)(D), resulting in a recommended Guidelines range of 37 to

46 months’ imprisonment.

       Barnes objected to the calculation. She argued the amount of loss should be limited to

the actual loss—i.e., the amount she and her co-conspirators recovered from the checks they


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No. 16-2169, United States v. Barnes


successfully cashed—$28,183.67. Under the Guidelines, this amount of loss triggered only a

four-level enhancement, resulting in a lower Guidelines range of 30 to 37 months’ imprisonment.

Barnes reasons the actual-loss figure of $28,000 is preferable to the intended-loss figure of

$89,000 because that is the loss the prosecution established beyond a reasonable doubt at trial,

and factual findings affecting a defendant’s sentence should be made by a jury beyond a

reasonable doubt under United States v. Booker, 543 U.S. 220 (2005). The district court rejected

her argument, and so do we.

       We have explained many times over that “Booker did not eliminate judicial factfinding.”

United States v. Conaster, 514 F.3d 508, 527 (6th Cir. 2008) (citation omitted). “By now, it is

well established that the preponderance of the evidence standard does not violate Booker, so long

as the trial court appreciates that the guidelines are advisory, and not binding.” Mickens, 453

F.3d at 673. Taking a cue from Mickens, the district court explained that it did “appreciate that

the guidelines are advisory and that the amount of the loss finding is not going to enhance the

defendant’s sentence beyond the statutory maximum.”         From there, the court applied the

preponderance standard, and found the evidence “more than sufficient” to establish that Barnes

“intended to have the[] checks [recovered from her vehicle] cashed pursuant to her involvement

in the proven bank fraud conspiracy.” Barnes does not challenge this finding and gives us no

reason to question the reasonableness of her sentence.

                                               IV.

       We therefore affirm the district court’s judgment.




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