                NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                           File Name: 08a0457n.06
                            Filed: August 1, 2008

                                           No. 04-4478

                          UNITED STATES COURT OF APPEALS
                               FOR THE SIXTH CIRCUIT


UNITED STATES OF AMERICA,                        )
                                                 )
       Plaintiff-Appellee,                       )
                                                 )
v.                                               )    ON APPEAL FROM THE UNITED
                                                 )    STATES DISTRICT COURT FOR THE
JOHN PURNELL WALKER,                             )    NORTHERN DISTRICT OF OHIO
                                                 )
       Defendant-Appellant.                      )




       Before: DAUGHTREY, GILMAN, and ROGERS, Circuit Judges.
       Rogers, Circuit Judge. This case is part of a consolidated appeal involving thirteen

defendants who were members of the Outlaw Motorcycle Club (“OMC”), an international

motorcycle club with chapters across the country and around the world. In 1997, the Federal Bureau

of Investigation and state law enforcement agencies began an investigation into the Green region of

the OMC, which consists of chapters in Dayton, Ohio; Fort Wayne, Indiana; Louisville, Kentucky;

Indianapolis, Indiana; and Oklahoma City, Oklahoma. As a result of the investigation, a grand jury

in the Northern District of Ohio returned a 40-count indictment in 2003 charging the defendants with

various offenses, including Racketeer Influenced and Corrupt Organizations Act (“RICO”), drug

trafficking, and firearms offenses. The defendants were tried before an anonymous jury.
No. 04-4478
United States v. Walker

       Defendant John P. Walker was president of the OMC chapter in Indianapolis, Indiana. The

evidence indicates that he distributed substantial quantities of drugs and took an active role in the

management of OMC activities.


       On April 8, 2003, Walker and 37 other OMC members were named in a 40-count indictment

issued in the Northern District of Ohio. The indictment charged Walker with four offenses: (1)

substantive RICO in violation of 18 U.S.C. § 1962(c); (2) RICO conspiracy in violation of 18 U.S.C.

§ 1962(d); (3) conspiracy to distribute controlled substances in violation of 21 U.S.C. § 846; and (4)

firearms conspiracy in violation of 18 U.S.C. § 924(o). The jury acquitted him on the firearms

conspiracy charge. On all other charges, however, he was convicted.


       At the sentencing hearing, the district court determined Walker’s offense level to be 36,

which provided a Guidelines range of 188-235 months. Based on that range, the district court

sentenced Walker to 200 months in prison. After rendering this sentence, the district court

alternatively imposed an identical sentence under an advisory Guidelines regime.


       On appeal, Walker makes four arguments: (1) that the district court violated his

Confrontation Clause rights by admitting post-arrest statements made by codefendants Fowler and

Carlisle; (2) that, as to the narcotics conspiracy charge, he was entitled to a jury instruction on the

lesser-included offense of possession of cocaine; (3) that his rights were violated by the empaneling

of an anonymous jury; and (4) that the district court erroneously sentenced him under a mandatory

Guidelines regime. None of these arguments has merit.


                                                 -2-
No. 04-4478
United States v. Walker

       There is no merit to Walker’s Confrontation Clause argument regarding the admission into

evidence of statements by codefendants Fowler and Carlisle. Fowler’s statements related to his role

in two murders and his involvement in various drug trafficking activities, and Carlisle’s statements

related to the murder of an individual named Eric Coulter. Walker was neither involved in those

incidents nor implicated by the statements. Nevertheless, Walker contends that these statements

helped the Government prove the existence of the drug and RICO conspiracies of which he was

found to be a part.


       At the outset, we question whether the statements that Walker complains of were actually

introduced against him at trial. “Ordinarily when, at a joint trial, a codefendant’s prior statement,

testimonial or otherwise, is introduced only against the declarant-codefendant, and not against the

complaining codefendant, the latter has suffered no violation of his Sixth Amendment Confrontation

Clause rights.” United States v. Vasilakos, 508 F.3d 401, 407 (6th Cir. 2007). The Supreme Court

has recognized an exception to this general rule where a codefendant’s statement facially

incriminates the defendant, see id.; Bruton v. United States, 391 U.S. 123, 135-36 (1968), but the

statements that Walker complains of do not facially incriminate or even mention him. Thus, if the

statements were not admitted as evidence against Walker, they could not have violated his

Confrontation Clause rights. In the end, though, it is difficult to tell whether Fowler’s and Carlisle’s

statements were introduced against Walker because the district court did not give a limiting

instruction regarding the statements when they were introduced.




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No. 04-4478
United States v. Walker

         However, even assuming that the statements were introduced as evidence against Walker,

and assuming that this was a violation of Walker’s rights under the Confrontation Clause, any error

on the part of the district court in this regard was harmless. Several witnesses testified to the effect

that Walker was involved in the distribution of large quantities of cocaine, and there was also

evidence that he took an active role in the OMC criminal enterprise by, for example, monitoring the

results of lie-detector tests given to OMC members who were suspected of having become

Government agents. Accordingly, there is no reasonable possibility that the admission of Fowler’s

and Carlisle’s statements made a difference to the jury in convicting Walker of the RICO, RICO

conspiracy, and narcotics conspiracy offenses. Cf. United States v. Savoires, 430 F.3d 376, 382 (6th

Cir. 2005).


         Also without merit is Walker’s claim that, with respect to his narcotics conspiracy offense,

he was entitled to a jury instruction on the lesser-included offense of possession of cocaine. This

argument has no merit because “simple possession is not a lesser-included offense of conspiracy to

distribute and possess with intent to distribute.” United States v. Colon, 268 F.3d 367, 376 (6th Cir.

2001).


         Further, the district court did not violate Walker’s rights to due process and an impartial jury

by empaneling an anonymous jury. Our reasoning for this conclusion is set out in a companion case,

United States v. Lawson, __ F.3d __ (6th Cir. 2008), and need not be repeated here.




                                                  -4-
No. 04-4478
United States v. Walker

       Finally, although Walker was sentenced before United States v. Booker, 543 U.S. 220 (2005),

the district court did not err in sentencing him because it appropriately imposed an alternative

sentence under an advisory Guidelines regime. See United States v. Christopher, 415 F.3d 590, 593-

94 (6th Cir. 2005). Thus, there is no merit to Walker’s argument that the district court violated his

Sixth Amendment rights by enhancing his Guidelines range using judge-found facts and sentencing

him under a mandatory Guidelines regime.


       Moreover, his argument also fails to the extent that it can be construed as a challenge to the

reasonableness of the alternative sentence. The alternative sentence is procedurally and substantively

reasonable, and therefore not an abuse of discretion. See Gall v. United States, __ U.S. __, 128 S.

Ct 586, 597 (2007). While the district court’s discussion of the relevant factors from 18 U.S.C. §

3553(a) was sparse, it was sufficient “to allow for reasonable appellate review.” United States v.

Sexton, 512 F.3d 326, 331 (6th Cir. 2008) (citing United States v. Williams, 436 F.3d 706, 708-09

(6th Cir. 2006)).


       For the foregoing reasons, Walker’s convictions and sentence are AFFIRMED.




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