                NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                          File Name: 06a0366n.06
                             Filed: May 24, 2006

                                          05-1072

                        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
CLAUDE BARNES,                                )   WESTERN DISTRICT OF MICHIGAN
                                              )
       Defendant-Appellant.                   )




       Before: GUY, DAUGHTREY, and CLAY, Circuit Judges.


       MARTHA CRAIG DAUGHTREY, Circuit Judge. The defendant, Claude Barnes,

appeals from his convictions for distribution of more than five grams of crack cocaine and

distribution of more than 50 grams of crack cocaine, as well as from the resulting

concurrent 168-month sentences imposed by the district court prior to the Supreme Court’s

opinion in United States v. Booker, 543 U.S. 220 (2005). Barnes contends that the district

court erred in allowing the introduction of certain evidence and in calculating his sentence.

For the reasons set out below, we find no error in connection with Barnes’s conviction, but

we vacate his sentence and remand the matter to the district court for re-sentencing under

an advisory guidelines scheme, as required by Booker.
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United States v. Barnes

                   I. FACTUAL AND PROCEDURAL BACKGROUND


       Trial testimony established that Officer Frank Mobley of Lansing, Michigan’s police

department developed a relationship with Nicholas Smith using Smith as a go-between in

Mobley’s efforts to purchase cocaine powder and crack cocaine. Smith was, however,

unaware that Mobley was in fact an undercover officer involved in an operation to arrest

illegal drug dealers.


       Beginning in January 2004, Mobley would meet with Smith, usually at a local Quality

Dairy store, and Smith would call a supplier by dialing (517) 505-3913 on a cell phone.

Within minutes, an individual identified as defendant Barnes would arrive on the scene and

Smith would exchange money provided by Mobley for the illegal controlled substances.

Barnes would then drive away from the location and Mobley would drop off Nicholas Smith

before returning to the police station with the contraband.


       On February 12, 2004, after using Nicholas Smith to facilitate three prior drug

purchases, Mobley himself called the (517) 505-3913 telephone number he had seen Smith

dial and arranged with Barnes to meet at the Quality Dairy so that the undercover officer

could purchase two ounces of crack cocaine from the defendant for $1,500. Aware of

Mobley’s earlier dealings with Smith and Barnes, the local police had also set up

surveillance of a residence at 2628 East Cavanaugh, approximately one and one-half

blocks from the Quality Dairy rendezvous point, in an effort to identify and observe Smith’s

supplier. Shortly after Mobley’s call, officers watching the East Cavanaugh address

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observed a black male leave the house, get into a green Oldsmobile with license plate

number USA 683, and drive away in the direction of the Quality Dairy. The defendant,

driving a green Oldsmobile with licence number USA 683, met Mobley at the Quality Dairy

moments later and beckoned Mobley to follow him to a nearby apartment complex. At that

location, the undercover officer got into the Oldsmobile and exchanged money for 20.94

grams of crack cocaine.


       That entire transaction was also observed by Detective Sergeant Robyn Lynde of

the Michigan State Police, who was conducting surveillance at the Quality Dairy at the time

Barnes met Mobley there on February 12, 2004. Furthermore, the officers watching the

house at 2628 East Cavanaugh noticed that the green Oldsmobile returned to the

residence a few minutes after the completion of the drug transaction and that the same

person who left the house in the green Oldsmobile then reentered the dwelling.


       Similarly, on April 12, 2004, the police had the house at 2628 East Cavanaugh under

surveillance after defendant Barnes called Mobley’s cell phone shortly before 7:00 p.m. and

offered to sell the undercover officer three ounces of crack cocaine for $2,350. During that

conversation, Barnes related that Smith had recently died of a drug overdose and that the

defendant was wary of dealing with Mobley in the absence of the usual intermediary.

Nevertheless, the two men arranged to meet at a Citgo gas station approximately two

blocks from the East Cavanaugh residence. Officers engaged in the surveillance of the

East Cavanaugh home then observed that Barnes and another individual left the house in


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United States v. Barnes

a black Chevrolet Malibu at 7:01 p.m., minutes before Mobley and Barnes met at the Citgo

station. Eventually, Mobley gave Barnes the agreed-upon amount of money and received

in exchange 71.15 grams of crack cocaine that the defendant retrieved from an empty

potato chip bag that had been placed in a trash receptacle at the service station.


       After the completion of the drug transaction, Mobley and other police officers, under

the authority conferred by a previously-obtained warrant, conducted a search of the

residence at 2628 East Cavanaugh. During that search, the law enforcement officials

found an electronic scale, baggies, numerous firearms, including two weapons from which

fingerprints matching those of the defendant were lifted, a prescription pill bottle with

Barnes’s name on the label, and a Samsung T-Mobile phone with the registered number

of (517) 505-3913. Later, when arresting the defendant, the officers also recovered a

second cellular telephone, this one a blue Nokia model that had registered that its user

called Mobley’s cell phone at 6:51 p.m. on April 12, 2004, the same time that Mobley

received the call from Barnes regarding the plans to meet at the Citgo station for the

exchange of cash and crack cocaine.


       Based upon this evidence, the jury determined that Barnes was guilty both of

distributing at least five grams of crack cocaine on February 12, 2004, and of distributing

at least 50 grams of crack cocaine on April 12, 2004. The district judge eventually

sentenced the defendant to concurrent 168-month sentences for the two offenses,

sentences that were the least severe punishments envisioned by the applicable federal


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United States v. Barnes

sentencing guidelines range. The court also imposed alternate, concurrent 120-month

sentences on Barnes in the event that “the sentence guidelines [are] deemed

unconstitutional.” The defendant now appeals from that judgment of conviction and from

the 168-month sentences.


                                     II. DISCUSSION


                            A. The Defendant’s Conviction


       Barnes raises numerous issues in this appeal challenging the admission by the

district court of certain testimony and evidence.     We review all such challenges to

admissibility solely for an abuse of discretion. See Gen. Elec. Co. v. Joiner, 522 U.S. 136,

141 (1997).


1. Evidence Included in Defendant’s Motion in Limine


       Prior to the beginning of trial, Barnes moved the district court to exclude from the

jury’s consideration evidence of Barnes’s association with the drug deals with Mobley that

were brokered by Nicholas Smith because those illegal sales were not charged in the

indictment. He also requested that no mention be made of the fact that Smith died as a

result of a drug overdose, or that numerous firearms were found in the East Cavanaugh

residence during the search of that premises. The district judge conducted a short hearing

on the motion before denying the defendant’s request in its entirety. Barnes now reprises



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his argument that the challenged testimony and evidence were inadmissible due to their

overly prejudicial nature.


       We review the district court’s evidentiary rulings for abuse of discretion. United

States v. Johnson, 440 F.3d 832, 842 (6th Cir. 2006).


       The district judge ruled that the evidence of the prior transactions was admissible

to show the necessary background for the narrative of Mobley’s dealings with the defendant

on February 12 and April 12, 2004. Similarly, the court held that Barnes’s announcement

concerning Smith’s death was relevant background information explaining why Mobley first

dealt with the defendant only through an intermediary and then directly. Without such

background, the undercover officer’s contacts with the defendant would appear to be

nothing more than incredibly fortuitous chance encounters. Thus, given the need for an

explanation why Mobley would call Barnes’s cell phone on February 12, and why Barnes

would contact Mobley on April 12 in an effort to sell him additional quantities of crack

cocaine, the decision to permit introduction of testimony explaining the interrelationship

among Barnes, Mobley, and Smith, combined with the instruction that the jurors not

consider testimony of other acts as evidence that the defendant committed the charged

offenses, was not an abuse of discretion.


       Also without merit is the defendant’s objection to testimony concerning the fact that

a search of the residence at 2628 East Cavanaugh uncovered the existence of numerous

firearms, two of which contained prints later linked to the defendant. Significantly, the

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United States v. Barnes

government never intimated that the firearms were possessed illegally. Any evaluation of

the propriety of offering that evidence centers, therefore, only upon whether the testimony

was relevant and whether its probative value was greater than any potential prejudicial

effect. See   FED. RULES OF EVID.   401 and 403. The proffered testimony satisfied both of

these tests. A central issue during the defendant’s trial was the identity of the individual

who supplied Mobley with crack cocaine. In an effort to prove that Barnes was indeed that

individual, the government was justified in emphasizing evidence demonstrating that the

supplier left the house at 2628 East Cavanaugh to meet Mobley for the sales and that

Barnes himself had a connection with that premises. Trial testimony showing that firearms

with the defendant’s prints on them and a prescription pill bottle with the defendant’s name

on the label were found during a search of the East Cavanaugh home clearly was probative

of Barnes’s connection with the crimes and had a “tendency to make the existence of any

fact that is of consequence to the determination of the action more probable . . . than it

would be without the evidence.”      FED. RULE OF EVID.   401. The district court thus did not

abuse its discretion in ruling this evidence admissible at trial.


2. Fingerprint Evidence


       In an additional challenge to the relevance of the firearms evidence, the defendant

raises two concerns about the fingerprint testimony offered by government witnesses.

Barnes first asserts that the expert testimony of witness Michele Glasgow should have

been excluded because of the government’s delay in identifying the substance of that


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United States v. Barnes

witness’s findings. Second, the defendant alleges that Glasgow’s testimony concerning

peer review of her findings presented a confrontation clause violation that requires reversal

of Barnes’s convictions.


       In raising his first challenge to the admission of the government’s fingerprint

evidence, the defendant importantly does not claim that the prosecution withheld

information ascertained by its expert witness. Rather, Barnes complains that the disclosure

made by the government came too near the start of the trial to allow for adequate testing

of the prosecution’s expert’s results. However, the defense was aware nine or ten days

prior to trial that Barnes’s fingerprints had been found on two of the firearms discovered

during the search of 2628 East Cavanaugh. Not only did the defendant fail to secure his

own expert to challenge the government’s expected testimony within that time, but Barnes

did not even request a further continuance from the court to examine the information that

he might question. Instead, the defendant sought only the total exclusion of the fingerprint

evidence, the most drastic sanction available for any discovery violation. Under these

circumstances, the district court did not abuse its discretion in allowing the challenged

evidence to be admitted at trial.


       Barnes raises an objection to testimony offered by expert witness Glasgow that the

Michigan State Police Crime Laboratory never issues “an analysis of fingerprints that has

not had a second analysis confirming the original analysis.” According to the defendant’s

argument, such a statement not only indicates that a second examiner who was not made


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United States v. Barnes

available for cross-examination existed, but also that the unavailable expert necessarily

verified the results reached by Glasgow herself. Even assuming that such testimony does

indeed constitute a violation of the protections afforded by the confrontation clause of the

Sixth Amendment to the United States Constitution, that error in this case is harmless

beyond a reasonable doubt. Not only would the testimony of the absent fingerprint analyst

have been merely cumulative of the testimony offered by the live witness available to the

defense for cross-examination, but the evidence of Barnes’s guilt of the offenses with which

he was charged was overwhelming. One fingerprint expert already tied the defendant to

the home on East Cavanaugh from which the drug dealer operated, and a prescription pill

bottle and visual surveillance also helped identify Barnes as the individual from whom

undercover officer Mobley purchased crack cocaine. Even more damning, however, was

the eyewitness testimony of Mobley himself, one of the participants in the transactions, that

Barnes was indeed the individual who supplied the contraband substances. This evidence,

coupled with additional information gleaned from cell phone displays, unerringly connected

the defendant with the illegal sales. Consequently, the district court did not commit

reversible error in permitting witness Glasgow’s testimony to be considered by the finders

of fact.


3. Evidence Gathered From Defendant’s and From Mobley’s Cell Phones


       Barnes next contends that the district judge committed error in allowing Officer

Mobley to testify that Mobley’s cell phone registered the number of one of Barnes’s cell


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United States v. Barnes

phones as a previously-dialed number, and that yet another cell phone recovered from the

defendant indicated that someone using that second phone had placed a call to Mobley at

the same time the officer received a call from Barnes regarding plans for a drug sale on

April 12, 2004. The defendant contends that admission of such evidence was improper

because Mobley was not qualified as an expert in cell phone technology and should not,

therefore, have been allowed to offer his opinion regarding the origin and destination of

particular telephone calls. In the absence of a contemporary objection at trial, we review

this issue for plain error only.


       A review of the record indicates that Mobley’s testimony did not involve the offering

of any expert opinion. See FED. RULE OF EVID. 702. Instead, the witness merely recounted

information retrieved from various cell phones in a procedure used and relied upon not by

experts in telephonic technology, but by literally millions of cell phone users. Simply

relating to a jury the information gained from a function performed, known, and understood

by most members of modern society did not render Mobley’s testimony improper.


                               B. The Defendant’s Sentence


       Finally, Barnes contends that the district court erred in imposing concurrent 168-

month sentences upon him because those sentences were calculated and imposed prior

to the United States Supreme Court’s decision in Booker, at a time when the sentencing

guidelines were still regarded as mandatory. The defendant now requests that this panel

remand his case to the district court with a directive to the district judge to impose the 120-

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United States v. Barnes

month sentences that were given as alternatives under the temporary rule announced in

United States v. Koch, 2004 WL 1870438 (6th Cir. August 13, 2004) (en banc).


       The government concedes that the guideline sentences cannot stand in the

aftermath of Booker. Citing United States v. Christopher, 415 F.3d 590, 593 (6th Cir.

2005), however, the United States also submits that the 120-month sentences were equally

invalid because the district judge arrived at that punishment by assuming not that the

guidelines are advisory, but rather that they are unconstitutional in their entirety. But,

whatever the district court’s assumption may have been, our response to Booker has been

consistent. In every case in which a Booker remand has been required, we have directed

the district court to reconsider the sentence, treating the guidelines as advisory only, and

evaluating the various factors listed in 18 U.S.C. § 3553(a) in determining a sentence that

is reasonable and appropriate. Because the 168-month sentences ordered by the district

judge in this case were admittedly erroneous under subsequent, applicable case law, this

case must be remanded for re-sentencing. At that proceeding, the district court can explain

on the record how the alternate 120-month punishments further the sentencing purposes

mentioned in § 3553(a).


                                    III. CONCLUSION


       For the reasons set out above, we AFFIRM the defendant’s conviction in this matter,

VACATE the sentencing order, and REMAND the case to the district court for re-sentencing

specifically in light of the sentencing factors listed in 18 U.S.C. § 3553(a).

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