                NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                           File Name: 12a0279n.06
                                                                                            FILED
                                            No. 10-6133
                                                                                       Mar 12, 2012
                           UNITED STATES COURT OF APPEALS                        LEONARD GREEN, Clerk
                                FOR THE SIXTH CIRCUIT


UNITED STATES OF AMERICA,              )
                                       )
      Plaintiff-Appellee,              )                   ON APPEAL FROM THE
                                       )                   UNITED STATES DISTRICT
v.                                     )                   COURT FOR THE EASTERN
                                       )                   DISTRICT OF KENTUCKY
ANTHONY LAMAR,                         )
                                       )
                                                                   OPINION
      Defendant-Appellant.             )
_______________________________________)


Before: MOORE, SUTTON, and DONALD, Circuit Judges.

       KAREN NELSON MOORE, Circuit Judge. Defendant-Appellant Anthony Lamar appeals

his jury conviction for distribution and possession of five hundred grams or more of cocaine. Lamar

seeks a new trial on the basis of three purported errors: (1) the district court’s refusal to make a

preliminary determination regarding the admissibility of coconspirator statements used at trial; (2)

the district court’s alleged failure to evaluate appropriately the admissibility of Federal Rule of

Evidence 404(b) materials; and (3) the district court’s failure to strike the government’s improper

vouching and bolstering of its witnesses’ credibility. After consideration of the errors that Lamar

claims, we AFFIRM his conviction and the judgment of the district court.

                              I. BACKGROUND & PROCEDURE

       On November 19, 2009, Lamar was indicted for conspiring to distribute and to possess with

the intent to distribute five hundred or more grams of cocaine, in violation of 21 U.S.C. §§ 841(a)(1),
No. 10-6133
United States v. Lamar


846. The alleged conspiracy revolved around a man named Fred Lewis, who came to the attention

of the FBI’s Safe Streets Task Force in 2006. Lewis sold cocaine and other drugs to users and lower-

level traffickers in the Cincinnati, Ohio and Northern Kentucky areas.

        Beginning in October 2007 and extending through mid-June 2008, the FBI obtained a series

of court orders authorizing the interception of phone calls to and from Lewis’s phone. During that

period, Lamar, who also went by the alias “Rock,” was one of Lewis’s drug suppliers. Although

most of the interactions between Lewis and Lamar involved sales of “cush,” which is a form of

high-end marijuana, the government produced testimony indicating the existence of three occasions

on which Lamar sold Lewis kilogram quantities of cocaine. The vast majority of the evidence

against Lamar pertained to only one of these drug buys, which was completed on May 7, 2008. With

respect to that particular purchase, officers initially intercepted a call during which Lamar stated that

he could supply Lewis with cocaine the following day at a price of $23,000 or $23,500 per kilogram.

That intercepted call between Lewis and Lamar followed a series of calls between Lewis and other

coconspirators in which Lewis sought to obtain kilogram quantities of cocaine from other individuals

but was unsuccessful in doing so. The call also came after officers conducting surveillance on Lewis

observed Lewis entering the Beekman Variety Mart where Lamar worked. At trial, Lewis testified

that he had visited Lamar to obtain some marijuana and that over the course of their interaction,

Lewis relayed to Lamar his previous efforts to obtain cocaine. Later that day in a separate

intercepted call, Lewis and Lamar arranged to pay for the cocaine at Lewis’s home, which was under

surveillance at the time. After Lamar arrived and while Lamar was still inside, Lewis made another


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United States v. Lamar


intercepted call to inform a buyer that he was with the source and that they had multiple kilograms

of cocaine available for $24,500 each. Lewis expressed a similar offer to another buyer in a separate

intercepted call shortly thereafter. After another series of intercepted calls, including a few more

between Lewis and Lamar, Lamar delivered the cocaine to Lewis later that day. Lewis and Lamar

began discussing the purchase of a second kilogram of cocaine a few hours later, but that purchase

was never completed.

       After three days of testimony and the replaying of dozens of taped phone calls, the jury

returned a guilty verdict against Lamar. The district court then sentenced Lamar to 156 months in

prison and eight years of supervised release. This appeal followed.

                                          II. ANALYSIS

A. The Coconspirator Testimony

       Lamar first argues that the district court’s decision to admit coconspirator statements without

making a preliminary determination as to their admissibility warrants a new trial. Federal Rule of

Evidence 801(d)(2)(E) excludes from the hearsay rule statements that are “made by the party’s

coconspirator during and in furtherance of the conspiracy.” Before such statements may be admitted,

however, the government must establish “three foundational prerequisites”: “that a conspiracy

existed; that [the] defendant was a member of the conspiracy; and that the declarant’s statement was

made during the course and in furtherance of the conspiracy.” United States v. Conrad, 507 F.3d

424, 429 (6th Cir. 2007) (alteration in original) (quoting United States v. Maliszewski, 161 F.3d 992,




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United States v. Lamar


1007 (6th Cir. 1998)). These prerequisites must be established by a preponderance of the evidence

based on the district court’s findings of fact. Id. (citing Fed. R. Evid. 104(a)).

        Prior to trial, Lamar’s defense counsel filed a motion for a pretrial hearing pursuant to United

States v. Enright, 579 F.2d 980 (6th Cir. 1978), to determine the admissibility of any coconspirators’

statements that the government would seek to admit under the coconspirator exception to the hearsay

rule.1 The government then filed a bill of particulars detailing its intent to rely on testimony of

coconspirators and the facts it sought to prove at trial, including the scope of the conspiracy, Lamar’s

role as a drug supplier, and the details surrounding a particular sale of cocaine that was negotiated

with Lamar on May 6, 2008 and executed the following day. After reviewing the government’s

proffered evidence, the district court determined that a pretrial hearing was unnecessary and denied

Lamar’s request, deciding instead to admit the coconspirators’ hearsay statements conditionally

subject to the government’s eventual demonstration of their admissibility. The district court stated

that it was “satisfied, assuming the Government is able to admit evidence consistent with its Bill of

Particulars, that there will be sufficient evidence of a conspiracy to distribute powder and/or crack

cocaine which includes both Defendant Lamar and the declarants, and that those statements were

made during and in furtherance of the alleged conspiracy.” R. 51 (Dist. Ct. Order at 4).

        Lamar’s challenge to the adequacy of the district court’s factual determination on the

admissibility of the coconspirator statements is refuted by the record. Instead, as the trial record


       1
         Although Lamar’s original attorney was removed due to a conflict of interest while the
motion was pending, his newly retained counsel filed a motion seeking to move forward with the
original request for a pretrial hearing.

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clearly demonstrates, the district court did make the requisite finding. Toward the end of the first

day of trial and before the government began playing the recorded telephone calls for the jury, the

district judge stated for the record his determination that the government had produced sufficient

non-hearsay testimony to establish by a preponderance of the evidence that a conspiracy existed

involving Lewis and Lamar, that any statements in 2008 were made during the conspiracy, and that

statements setting up cocaine purchases or deliveries were in furtherance of the conspiracy. After

reviewing the record, we do not find those determinations to be erroneous. Cf. United States v.

Gonzalez, 501 F.3d 630, 636–37 (6th Cir. 2007) (affirming a district court’s general finding that

statements fell within the coconspirator exception to the hearsay rule where the government had

presented a substantial amount of non-hearsay testimony about the interactions between members

of an alleged drug conspiracy).

       To the extent that Lamar’s claim challenges the district court’s refusal to grant a pretrial

hearing, it is without merit. Our cases make clear that the district court has considerable discretion

in determining how best to handle evidentiary issues. See, e.g., United States v. Vinson, 606 F.2d

149, 152 (6th Cir. 1979) (“A trial judge must have considerable discretion in controlling the mode

and order of proof at trial . . . .”), cert. denied, 444 U.S. 1074 (1980). Although a “mini hearing” to

determine whether the government may use coconspirator statements is one method of ensuring

conformance with the coconspirator exception to the hearsay rule, it is by no means the only one.

See id. A district court is also at liberty to “admit the hearsay statements subject to later

demonstration of their admissibility by a preponderance of the evidence,” id. at 153, which is exactly


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what the district court did here. There was no error on this ground. Because Lamar has not raised

any specific objections to the sufficiency of the evidence on any one of the three foundational factors

described above, no further analysis is needed. We conclude that a retrial is not warranted on the

basis of the district court’s admission of the coconspirator statements.

B. Rule 404(b)

         Before trial, the government provided notice to Lamar of its intent to introduce evidence that,

in addition to the cocaine transactions at issue, Lamar had sold small quantities of marijuana to

individual coconspirators. The notice explained that the government planned to introduce the

evidence to show how the witnesses knew Lamar and because the marijuana sales were “inextricably

intertwined” with the charged offenses and therefore “necessary to explain the circumstances of the

charged conduct.” R. 53 (Notice of Intent to Offer Evidence at 2). In response, Lamar filed a motion

in limine to exclude the evidence, opposing any reference by the government to Lamar’s marijuana

sales.

         At trial, the district court denied the motion in limine and overruled Lamar’s Rule 404(b)

objection. In his oral ruling, the district court concluded that the evidence was “not character

evidence as defined under 404(b).” R. 93 (Day 1 Trial Tr. at 3). According to the district court, the

evidence both explained why the coconspirators knew Lamar and gave an explanation for a reference

to “cush” in one of the taped phone calls in which Lewis referred to Lamar in a discussion with

another of the alleged coconspirators. Furthermore, the district court found that the close temporal

connection to the cocaine transaction also made the evidence admissible as “background evidence


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and necessary to complete the story of the charged offense.” Id. On appeal, Lamar maintains that

the district court admitted the evidence of the marijuana sales without engaging in a proper Rule

404(b) analysis, which he contends warrants remand for a new trial.

       Federal Rule of Evidence 404(b) requires the exclusion of other-acts evidence used for no

purpose other than to suggest a party’s action in conformity with such prior acts. United States v.

Trujillo, 376 F.3d 593, 605 (6th Cir. 2004). We have held time and again, however, that background

evidence, “often referred to as ‘res gestae,’ does not implicate Rule 404(b).” United States v. Hardy,

228 F.3d 745, 748 (6th Cir. 2000). The exception for background evidence is narrow and is not

intended to permit easy evasion of the constraints of Rule 404(b). United States v. Clay, ---F.3d----,

2012 WL 43592, at *7 (6th Cir. 2012). As a general matter, evidence falling within the exception

is limited to that which “has a causal, temporal or spatial connection with the charged offense,” such

as evidence that “is a prelude to the charged offense, is directly probative of the charged offense,

arises from the same events as the charged offense, forms an integral part of the witness’s testimony,

or completes the story of the charged offense.” Hardy, 228 F.3d at 748. We review the district

court’s decision to admit evidence pursuant to the background-evidence exception for an abuse of

discretion. See Clay, 2012 WL 43592, at *3, *7–8.

       The handful of references to Lamar’s marijuana sales in this case are closely tied to the

explanation as to how Lamar knew the coconspirators and how he became involved in the cocaine

conspiracy. For instance, during Lewis’s testimony, Lewis explained that the inception of the May

7th cocaine sale began as he was purchasing marijuana from Lamar. In a recorded call with another


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United States v. Lamar


coconspirator shortly after that interaction, Lewis explained that he had found a source of cocaine

through “Rock from the store, with the cush.” R. 98 (Day 2 Trial Tr. at 40). The marijuana sales

came up again when Gerraill Miller, who was on the receiving end of the call from Lewis that

identified Lamar as the source of cocaine, testified about that telephone interaction with Lewis. R.

104 (Day 3 Trial Tr. at 27). Miller also testified that the voice in the earlier call was Lamar’s and

confirmed that the coded language involved cocaine. Id. As groundwork for those conclusions, the

government elicited testimony that Miller, himself, purchased marijuana from Lamar so as to

demonstrate the existence of prior interactions between the two. Id. at 24. Finally, to establish that

Lewis’s phone calls with Lamar related to cocaine rather than marijuana, the government used

testimony about the nature of the marijuana sales to establish that those sales were much less

involved and required no coordination to accomplish.

        We agree with the district court that these references to Lamar’s marijuana sales were

admissible as background evidence to show how Lamar became involved in the conspiracy and how

he was associated with various coconspirators. Cf. United States v. Paulino, 935 F.2d 739, 755 (6th

Cir.) (concluding that the district court did not abuse its discretion by admitting the defendant’s prior

drug deals to show “the background and development of a conspiracy” (internal quotation marks

omitted)), cert. denied, 502 U.S. 914 (1991); United States v. Galindo, 95 F. App’x 160, 163 (6th

Cir.) (determining that evidence of prior small drug transactions was permissible to show the

connection between the defendant and another coconspirator), cert. denied, 543 U.S. 889 (2004).

Lamar’s marijuana sales also had the requisite temporal connection and helped to explain the


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inception of the offense. Accordingly, the district judge did not abuse his discretion in admitting

them. Lamar’s argument that the district judge failed to apply the correct Rule 404(b) analysis prior

to admitting this evidence is therefore without merit.

C. Prosecutorial Misconduct

       In his final argument, Lamar contends that the district court erroneously permitted testimony

that was elicited by the government from multiple coconspirator witnesses concerning a requirement

under each of their plea agreements to provide truthful testimony in order to avoid either losing their

sentence reductions or facing charges of perjury. Lamar further argues that the government’s closing

argument improperly vouched for the truthfulness of the witnesses’ testimony and that the

government improperly bolstered that testimony by indicating that the government “had some secret

method by which to determine whether coconspirators were telling the truth.” Appellant Br. at 29.

       “Improper vouching occurs when a prosecutor supports the credibility of a witness by

indicating a personal belief in the witness’s credibility thereby placing the prestige of the office of

the United States Attorney behind that witness.” United States v. Francis, 170 F.3d 546, 550 (6th

Cir. 1999). Bolstering, on the other hand, “occurs when the prosecutor implies that the witness’s

testimony is corroborated by evidence known to the government but not known to the jury.” Id. at

551. We evaluate this type of prosecutorial misconduct using a two-part test that looks first to

whether the remarks were improper and second to whether the impropriety resulted in reversible

error. United States v. Jackson, 473 F.3d 660, 670 (6th Cir.), cert. denied, 550 U.S. 952 (2007). In

evaluating the second prong, we must determine whether the prosecutor’s misconduct was flagrant,


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which we do by assessing four factors: “(1) whether the remarks tended to mislead the jury or to

prejudice the accused; (2) whether [the remarks] were isolated or extensive; (3) whether [the

remarks] were deliberately or accidentally placed before the jury; and (4) the strength of the evidence

against the accused.” United States v. Carroll, 26 F.3d 1380, 1385 (6th Cir. 1994).

       Because Lamar’s counsel did not object to the remarks that Lamar now challenges on appeal,

we review his claim for improper vouching and bolstering only for plain error. United States v.

Henry, 545 F.3d 367, 376 (6th Cir. 2008). Particularly in the context of plain-error review,

“[i]nappropriate but isolated prosecutorial comments do not warrant a new trial.” United States v.

Wells, 623 F.3d 332, 338 (6th Cir. 2010), cert. denied, 131 S. Ct. 1534 (2011).

       Lamar points first to the government’s direct examination of numerous cooperating witnesses

during which the government elicited testimony about the witnesses’ plea agreements and the

corresponding obligation of each witness to provide truthful testimony. Those exchanges generally

also included a recognition by each witness that he or she would not receive any sentence reduction

if the testimony was false and that he or she would face perjury charges for such testimony. See R.

93 (Day 1 Trial Tr. at 92–92); R. 98 (Day 2 Trial Tr. at 207–08); R. 98 (Day 2 Trial Tr. at 221); R.98

(Day 2 Trial Tr. at 233–34); R. 104 (Day 3 Trial Tr. at 28–29); R. 104 (Day 3 Trial Tr. at 38–39);

R. 104 (Day 3 Trial Tr. at 54); R. 104 (Day 3 Trial Tr. at 65). In no exchange did the prosecutor

make any statement suggesting that he would be responsible for filing a § 5K.1 motion or for

evaluating the truthfulness of the testimony. Cf. Wells, 623 F.3d at 342 (“[A] prosecutor may




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United States v. Lamar


properly point out that a witness’s consideration for a plea bargain is telling the truth, but he may not

state (or even strongly imply) that it is he who shall be the arbiter of truth . . . .”).

        We have held repeatedly that it is acceptable for prosecutors to elicit testimony about a

cooperating witness’s plea agreement and about the consequences that witness could face for

providing false testimony. United States v. Reid, 625 F.3d 977, 982 (6th Cir. 2010). Indeed, one

such case involved circumstances quite similar to those at issue here. There,

        each of the cooperating witnesses testified in very similar terms that he had agreed
        as part of his plea to testify truthfully if called as a witness; that his truthful testimony
        could result in the filing of a motion for reduction of sentence; that the determination
        of whether to reduce his sentence would be made by the judge; and that he would
        lose the chance for a reduction in sentence and would face additional perjury charges
        if he testified falsely.

Id. We thus cannot conclude that the government acted improperly by eliciting such testimony in

this case.

        A few of the statements in the government’s closing argument present a somewhat closer

question. In particular, when reiterating the witnesses’ obligations under their plea agreements to

provide truthful testimony, the prosecutor at one point in closing argument stated that “[t]he evidence

was all these people were given one simple rule. Tell me the truth. Just tell the truth. That’s all

that’s required of them, and they’ve done it.” R. 104 (Day 3 Trial Tr. at 147) (emphasis added). That

statement comes perilously close to imparting the prosecutor’s imprimatur of truth on the testimony

of the cooperating witnesses. In addition, a short while later, the prosecutor also told the jury to

“[t]hink about how [the witnesses] testified. They were all very careful to try and avoid exaggerating

things or saying things that go beyond what was strictly true. All of them were careful.” Id. at 149.

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Although the remarks that followed explained the prosecutor’s characterization of the witness

testimony as “careful” and avoiding exaggeration by providing concrete examples of witness

statements and demeanor, the prosecutor’s remarks are still quite troubling.2

       Nonetheless, even if we assume that these statements were improper, they were relatively

isolated and appear to have been non-deliberate. Given the strength of the evidence implicating

Lamar in the cocaine sales, including coconspirator testimony, police surveillance corroborating

certain in-person interactions between Lamar and Lewis, and taped telephone conversations, the

prosecutor’s statements were not so flagrant as to warrant a new trial. Cf. Wells, 623 F.3d at 344;

Jackson, 473 F.3d at 672. The district court therefore did not plainly err in failing to strike them.

                                       III. CONCLUSION

       Because Lamar has not demonstrated that the district court committed any evidentiary error

or that it committed plain error by permitting improper vouching or bolstering of the government

witnesses’ credibility, we AFFIRM Lamar’s conviction and the judgment of the district court.




       2
         In contrast, we also note that a few of the closing statements to which Lamar objects in his
brief have been removed from their contextual foundation. When placed in context, the statements
are much less suspect. For example, Lamar points to the prosecutor’s statement that “[w]e’re going
to look at other pieces of information to verify what [the witnesses] say” as evidence of improper
bolstering. Appellant Br. at 27 (quoting R. 104 (Day 3 Trial Tr. at 148)). In context, however, the
statement follows the prosecutor’s discussion of the risks of lying in light of the existence of taped
phone calls. Although the phrasing leaves something to be desired, it does not improperly insinuate
that outside evidence exists that would confirm or dispel the witnesses’ statements. Cf. Jackson, 473
F.3d at 670–72 (noting the requirement that a prosecutor’s comments be viewed in their full context
when evaluating them for impropriety).

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