                NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                           File Name: 08a0236n.06
                              Filed: May 5, 2008

                                            No. 07-5434

                           UNITED STATES COURT OF APPEALS
                                FOR THE SIXTH CIRCUIT


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


Before: MOORE and CLAY, Circuit Judges; and SCHWARZER,* District Judge.

       KAREN NELSON MOORE, Circuit Judge. Teddy Ray Manns (“Manns”), Defendant-

Appellant in this case, appeals his convictions for distribution of controlled substances and for

conspiracy with intent to distribute controlled substances in violation of 21 U.S.C. § 841(a)(1) and

21 U.S.C. § 846, as well as his sentence of 276 months in prison. Manns makes three arguments

before this court: 1) that his convictions should be reversed because the district court abused its

discretion in allowing the testimony of Manns’s cellmate regarding Manns’s alleged threat against

the lives of his co-defendants; 2) that his convictions should be reversed because of insufficiency of

the evidence; and 3) that his sentence should be vacated because the district court erred when it




       *
        The Honorable William W Schwarzer, United States District Judge for the Northern District
of California, sitting by designation.
found that Manns conspired to distribute at least 1000 kilograms of marijuana. For the reasons

explained below, we AFFIRM Manns’s convictions and sentence.

                                I. FACTS AND PROCEDURE

       On February 3, 2006, a grand jury indicted Manns on twenty-three counts of violation of

§§ 841(a)(1) and 846 and on one count seeking forfeiture pursuant to 21 U.S.C. § 853. On August

3, 2006, a grand jury charged Manns in a superseding indictment. Count 1 charged Manns with

conspiring to distribute 1000 kilograms or more of marijuana in violation of § 846; Count 2 charged

Manns with conspiracy to distribute Oxycontin in violation of § 846; Counts 3 through 15 charged

Manns with distribution of marijuana, cocaine, Oxycontin, and Lorcet pills containing hydrocodone

on various dates between February and April 2005, in violation of § 841(a)(1); Count 16 charged

Manns with growing fifty or more marijuana plants in June 2004 in violation of § 841(a)(1); Count

17 charged Manns with growing fifty or more marijuana plants in April 2005 in violation of

§ 841(a)(1); and Count 18 charged Manns with the use of currency, vehicles, and firearms in the

commission of the aforesaid crimes and sought forfeiture of the property.

       Prior to trial, Manns filed a motion in limine “to exclude any evidence that he allegedly made

threats regarding witnesses who may testify against him.” Joint Appendix (“J.A.”) at 71 (Motion

in Limine). The district court denied the motion on the ground that the alleged threat constituted

spoliation evidence, “probative of consciousness of guilt.” J.A. at 76 (10/25/06 Order at 1).

       On October 25, 2006, the district court dismissed Counts 3, 8, and 16, by government

motion. The court later also dismissed Count 14 by government motion.

       The trial took place on November 6 through November 8, 2006. The prosecution’s theory

of the case was that Manns operated an illegal drug business, aided and abetted by Kristy Tackett


                                                 2
(“Tackett”) who lived with him and with whom he had a child. Clarence “Rooster” Roberts

(“Roberts”) was one of Manns’s major clients, who in turn resold the drugs he purchased from

Manns. In addition to the testimony by co-defendants Tackett and Roberts, the government’s case

relied upon testimony by detective Virgil Ray (“Ray”) and by Will Chaney (“Chaney”), a

confidential informant who made controlled drug purchases that the police recorded.

       With respect to Count 1 regarding a conspiracy to distribute marijuana, Roberts testified

about how he came to form a drug partnership with Manns: Manns fronted Roberts marijuana that

he then sold, returning a portion of the profit to Manns. Roberts testified that he received “at least

50” pounds of marijuana each week from Manns between 2003 and 2005. J.A. at 164 (Trial Tr. Vol.

3: 22). Roberts further testified that the marijuana discovered at his house when the police executed

a search warrant came from Manns. Tackett testified that she lived with Manns and sold drugs that

he supplied to individuals including Chaney, returning all the money to Manns. Tackett testified that

at the time she was arrested, Manns probably had about $350,000 in drug profits then available to

him. Tackett explained that she helped Manns count drug money ranging in amounts from $20,000

to $50,000 and break marijuana quantities into one-pound baggies. According to Tackett, Manns

received deliveries of “100 to 300 pounds [of marijuana], at least every two to three weeks.” J.A.

at 178 (Trial Tr. Vol. 3: 40).

       With respect to Count 2 regarding the conspiracy to distribute Oxycontin, Roberts testified

that he received from Manns about fifty to one-hundred Oxycontin pills every one to two weeks.

       Roberts, Tackett, Ray, and Chaney testified regarding the counts of drug distribution and

manufacture. With respect to Count 4, Tackett testified that she sold Chaney fifty-one Oxycontins,

including one for herself, and took the money back to Manns. Chaney also testified that the


                                                  3
transaction took place at a rooster fight and that Tackett had told him that Manns was the source of

the supply for the pills. With respect to Counts 5 and 6, Chaney testified that a telephone

conversation recorded by the police revealed him talking with Tackett about a transaction involving

50 Oxycontin 80-milligram tablets and four pounds of marijuana. Chaney testified that a video

accurately depicted Tackett placing four pounds of marijuana in his car on March 21, 2005. Tackett

also testified that she sold Chaney marijuana in chicken feed bags. With respect to Count 7, Tackett

testified that Manns sent her to sell seventy-five pounds of marijuana to Roberts. Chaney explained

that a video recording depicted a “rooster feed bag containing 12 one-pound bags of marijuana.”

J.A. at 131 (Trial Tr. Vol. 2: 62). With respect to Counts 9 and 10, Roberts testified that when he

was arrested he had in his truck fifty pounds of marijuana and twenty-two Oxycontin 80-milligram

pills, which he had purchased from Manns at a McDonald’s in Salyersville. Ray testified that he had

conducted surveillance on March 29, 2005, and witnessed Roberts at a McDonald’s parking lot in

Salyersville taking a black garbage bag out of the back of Manns’s vehicle and placing it in his own

truck. With respect to Counts 11 and 12, Chaney testified regarding his purchase of half an ounce

of cocaine directly from Manns and his regular purchases of pain pills containing hydrocodone from

Manns. The evidence regarding Count 13 consists of statements at trial regarding a videotape

recording of a drug transaction that took place on April 12, 2005. With respect to Count 15, Chaney

testified regarding a scheme involving the purchase of Oxycontin from Manns and the use of the

money to obtain bail for Tackett. With respect to Count 17 regarding the growing of marijuana

plants, Ray identified Government Exhibit 26 as the fifty-three marijuana plants seized from

Manns’s residence.




                                                 4
       Steven Ryan Tackett, a cousin of Tackett’s ex-husband and Manns’s cellmate in a maximum-

security prison, also testified at trial that Manns offered him $10,000 to murder either Tackett or

Roberts and $20,000 to kill them both. The district judge instructed the jury:

               You’ve also heard the testimony of Steven Tackett, that after the crime was
       supposed to have been committed the defendant attempted to have Kristy Coleman
       Tackett and Clarence Roberts murdered.
               If you believe that the defendant attempted to have Kristy Coleman Tackett
       and Clarence Roberts murdered, then you may consider this conduct along with all
       of the other evidence in deciding whether the government has proved beyond a
       reasonable doubt that Mr. Manns committed the crime charged. This conduct may
       indicate that he thought he was guilty and was trying to avoid punishment.

J.A. at 204 (Trial Tr. Vol. 3-203).

       In submitting the case to the jury, the district court rejected the motion made by Manns’s

attorney, at the close of the government’s proof, for a judgment of acquittal pursuant to Federal Rule

of Criminal Procedure 29(a). Manns’s attorney had argued that:

       even based on the light most favorable to the United States . . . a reasonable jury
       could not return a verdict of guilty on this proof because there’s not been proof
       beyond a reasonable doubt, in that the proof is those were transactions that were
       engaged in between Kristy Tackett and the informant, Will Chaney. There was no
       evidence presented that Mr. Manns was involved or present for any of these
       transactions.

J.A. at 201 (Trial Tr. Vol. 3-124). Manns’s attorney further argued that the cocaine distribution

charges depended on the testimony of Chaney, who did not have sufficient credibility to justify

submitting the evidence to the jury. Manns’s attorney argued that insufficient evidence existed to

show that the marijuana plants seized belonged to Manns. Finally, Manns’s attorney argued:

       With regards to Counts 1 and 2, because to some extent the evidence on those rises
       and falls with regard to the other counts in the indictment because of the issues that
       were raised with regard to the witnesses on those counts, I think that the proof, even
       in the light most favorable to the government, would not allow the Court to submit
       those charges to the jury.


                                                  5
Id. at 202 (Trial Tr. Vol. 3-125).

       Following trial, on November 8, 2006, a jury convicted Manns on Counts 1, 2, 4, 5, 6, 7, 9,

10, 11, 12, 13, 15, and 17. The district court sentenced Manns to 276 months of imprisonment, ten

years of supervised release, a $1300 assessment, and a $250,000 fine.1 Manns filed a timely notice

of appeal.

                                          II. ANALYSIS

       As an initial matter, before addressing Manns’s arguments challenging his convictions and

sentence, we must consider whether the district court had authority to amend the original judgment.

The district judge filed an amended judgment to correct a clerical error regarding the duration of

Manns’s terms of imprisonment on Counts 1, 2, 4, 6, 10, 11, 13, 15, and 17. Because the district

court filed the amended judgment on May 23, almost two months after delivering the oral sentence

on March 26, the district court did not possess authority pursuant to Federal Rule of Criminal

Procedure 35.2




       1
         The judgment filed on March 27, 2007 contained an error. The judgment sentenced Manns
to a term of imprisonment of “276 months consisting of 300 months on each count 1s, 2s, 4s, 6s, 10s,
11s, 13s, 15s & 17s, and 120 months on each of counts 5s, 7s, 9s & 12s, with all terms to run
concurrently for a total of 276 months.” J.A. at 62 (Judgment at 3). On May 23, the district court
filed an amended judgment citing the correction of a clerical mistake pursuant to Federal Rule of
Criminal Procedure 36, as the reason for the amendment. Dist Ct. Record # 170 at 1 (Am. J. at 1).
The amended judgment sentenced Manns to a term of imprisonment of “276 months consisting of
276 months on each count 1s, 2s, 4s, 6s, 10s,11s, 13s, 15s & 17s, and 120 months on each of counts
5s, 7s, 9s & 12s, with all terms to run concurrently for a total of 276 months.” Dist Ct. Record # 170
at 3 (Am. J. at 3).
       2
         Rule 35 provides that “[w]ithin 7 days after sentencing, the court may correct a sentence that
resulted from arithmetical, technical, or other clear error.” FED . R. CRIM . P. 35(a). Rule 35 defines
“sentencing” as “the oral announcement of the sentence.” FED . R. CRIM . P. 35(c).

                                                  6
       Instead, the district court asserted authority to amend the judgment pursuant to Federal Rule

of Criminal Procedure 36. Rule 36 provides that the district court, after giving appropriate notice,

“may at any time correct a clerical error in a judgment, order, or other part of the record, or correct

an error in the record arising from oversight or omission.” FED . R. CRIM . P. 36. “A clerical error

must not be one of judgment or even of misidentification, but merely of recitation, of the sort that

a clerk or amanuensis might commit, mechanical in nature.” United States v. Robinson, 368 F.3d

653, 656 (6th Cir. 2004) (quotation omitted). In this case, the district court’s original written

judgment sentenced Manns to a total of 276 months in prison but erred in stating that this total term

included concurrent sentences of 300 months imprisonment on specified individual counts. The

district court, however, never made a mistake regarding the total term of imprisonment. We view

the mistake regarding the concurrent terms of imprisonment on the specified individual counts,

which the district court later corrected in the amended judgment, as the kind of mechanical, clerical

mistake that an amanuensis might commit. We therefore hold that the district court possessed

authority to amend the judgment pursuant to Federal Rule of Criminal Procedure 36.

A. Denial of Motion for Judgment of Acquittal Pursuant to Rule 29(a)

       We review de novo the district court’s decision to deny Manns’s motion for judgment of

acquittal. United States v. Gibson, 896 F.2d 206, 209 (6th Cir. 1990). In reviewing the sufficiency

of the evidence, “the relevant question is whether, after viewing the evidence in the light most

favorable to the prosecution, any rational trier of fact could have found the essential elements of the

crime beyond a reasonable doubt.” Jackson v. Virginia, 443 U.S. 307, 319 (1979). “A defendant

making such a challenge bears a very heavy burden.” United States v. Spearman, 186 F.3d 743, 746

(6th Cir.), cert. denied, 528 U.S. 1033 (1999).


                                                  7
       To prove participation in a drug conspiracy in violation of § 846, the government must

establish “(1) an agreement to violate drug laws, (2) knowledge and intent to join the conspiracy, and

(3) participation in the conspiracy.” United States v. Welch, 97 F.3d 142, 148 (6th Cir. 1996), cert.

denied, 519 U.S. 1134 (1997). The elements of conspiracy include: “(1) An object to be

accomplished. (2) A plan or scheme embodying means to accomplish that object. (3) An agreement

or understanding between two or more of the defendants whereby they become definitely committed

to cooperate for the accomplishment of the object . . . .” United States v. Gibbs, 182 F.3d 408, 420

(6th Cir.), cert. denied, 528 U.S. 1051 (1999). To prove knowing and intentional distribution of a

controlled substance in violation of § 841(a)(1), the prosecution must prove general criminal intent

showing “the possessor’s awareness that he is in possession of a controlled substance” as well as

“the specific ‘intent to distribute.’” Id. at 433 (quotations omitted). To prove manufacture of

marijuana in violation of § 841(a)(1), the prosecution need only establish that the defendant was

growing marijuana and not that he also intended to distribute the marijuana. United States v. Miller,

870 F.2d 1067, 1071-72 (6th Cir. 1989).

       Manns argues that the evidence is insufficient “to establish that [he] was involved in a

conspiracy to distribute more than 1,000 kilograms of marijuana, Count 1, or that [he] was involved

in any specific drug distribution, Counts 4, 6, 10, 13, and 15.” Defendant-Appellant Br. at 12.

Specifically, Manns argues that the government could not produce any direct evidence showing

Manns involved in drug transactions but rather produced evidence solely relating to transactions

between Tackett and Chaney.3 We conclude, however, that Manns’s arguments must fail because


       3
        The government argues that Manns has waived his right to challenge the denial of his motion
for judgment of acquittal for all counts but Count 1. “[I]ssues adverted to in a perfunctory manner,
unaccompanied by some effort at developed argumentation, are deemed waived.” United States v.

                                                  8
the prosecution can establish a conviction based solely on circumstantial evidence, and

“uncorroborated testimony of an accomplice may support a conviction in federal court.” Spearman,

186 F.3d at 746. Tackett, Roberts, and Chaney all testified extensively regarding Manns’s numerous

sales of large quantities of marijuana, Oxycontin, cocaine, and hydrocodone.

       Furthermore, Manns’s claim of insufficient evidence regarding Count 1 is limited to a

challenge to witness credibility. In making a Rule 29(a) motion at the close of the government’s

evidence, Manns’s attorney argued that because “to some extent” the evidence regarding Count

1“rises and falls with regard to the other counts in the indictment because of the issues that were

raised with regard to the witnesses on those counts . . . the proof . . . would not allow the Court to

submit those charges to the jury.” J.A. at 202 (Trial Tr. Vol. 3-125). “Although specificity of

grounds is not required in a Rule 29 motion . . . where a Rule 29 motion is made on specific grounds,

all grounds not specified are waived.” United States v. Dandy, 998 F.2d 1344, 1356-57 (6th Cir.

1993), cert. denied, 510 U.S. 1163 (1994). Here, Manns’s attorney specified that the incredibility

of the witnesses formed the grounds for the Rule 29 motion regarding Count 1, and did not specify

any other basis for the motion on this count.

       Credibility challenges, however, speak “to the quality of the government’s evidence and not

to the sufficiency of the evidence.” United States v. Farley, 2 F.3d 645, 652 (6th Cir.), cert. denied,

510 U.S. 1030 (1993). “[D]etermining the credibility of witnesses is a task for the jury, not this

court.” United States v. Beverly, 369 F.3d 516, 532 (6th Cir.), cert. denied, 543 U.S. 910 (2004).

Although “exceptional circumstances” may warrant the trial judge assuming the function of


Layne, 192 F.3d 556, 596-97 (6th Cir. 1999), cert. denied, 529 U.S. 1029 (2000). While Manns’s
arguments in support of his insufficient-evidence claim are weak, they are not raised in such a
perfunctory manner as to warrant deeming them waived.

                                                  9
credibility assessment normally reserved for the jury, Farley, 2 F.3d at 652, there is nothing to

suggest that such circumstances exist in this case. “[I]n reviewing a defendant’s claim of

insufficiency, we draw all available inferences and resolve all issues of credibility in favor of the

jury’s verdict.” United States v. Maliszewski, 161 F.3d 992, 1006 (6th Cir. 1998), cert. denied, 525

U.S. 1184 (1999). As a result, a defendant’s “attack on the credibility of prosecution witnesses gets

her [or him] nowhere.” Id. In sum, we conclude that the district court did not err when it denied

Manns’s Rule 29 motion, and we decline to reverse Manns’s convictions on the basis of insufficient

evidence.

B. Testimony of Steven Tackett

       Manns argues that the district court erred when it admitted testimony by Steven Tackett

regarding Manns’s alleged threats against the lives of Tackett and Roberts. We apply a tripartite

standard in reviewing the district court’s decision to admit evidence of “other acts” under Federal

Rule of Evidence 404(b). We review for clear error the district court’s factual determination that

“other acts” occurred; we review de novo the legal determination that there were legitimate reasons

to admit the evidence; and we review for abuse of discretion the “determination that the probative

value of the other acts evidence is not substantially outweighed by its unfairly prejudicial effect.”

United States v. Merriweather, 78 F.3d 1070, 1074 (6th Cir. 1996). “In reviewing the trial court’s

decision for an abuse of discretion, the appellate court must view the evidence in the light most

favorable to its proponent, giving ‘the evidence its maximum reasonable probative force and its

minimum reasonable prejudicial value.’” United States v. Schrock, 855 F.2d 327, 333 (6th Cir.

1988) (quoting 1 J. WEINSTEIN & M. BERGER , Weinstein’s Evidence ¶ 403 [at 3] (1982)).




                                                 10
       We find unconvincing Manns’s arguments that his alleged statement to Steven Tackett does

not constitute admissible spoliation evidence and that its unfair prejudicial impact outweighed its

probative value. “Spoliation is defined as the intentional destruction of evidence that is presumed

to be unfavorable to the party responsible for its destruction.” United States v. Copeland, 321 F.3d

582, 597 (6th Cir. 2003) (quoting BLACK’S L. DICT . 1401 (6th ed. 1990)). In United States v.

Mendez-Ortiz, 810 F.2d 76, 79 (6th Cir. 1986), cert. denied, 480 U.S. 922 (1987), we held that

“[t]hough not listed in Rule 404(b), spoliation evidence, including evidence that defendant attempted

to . . . threaten[] a witness, is admissible to show consciousness of guilt.”4 Id. Since Mendez-Ortiz,

we have reiterated that spoliation evidence regarding the defendant’s threats to witnesses is

admissible. See United States v. Blackwell, 459 F.3d 739, 768 (6th Cir. 2006), cert. denied,

--- U.S. ---, 127 S. Ct. 1336 (2007); Copeland, 321 F.3d at 597; United States v. Fortson, 194 F.3d

730, 737 (6th Cir. 1999); United States v. Maddox, 944 F.2d 1223, 1230 (6th Cir. 1991), cert.

denied, 504 U.S. 961 (1992).

       Manns argues that the cases affirming the admission of evidence respecting threats to

witnesses are distinguishable because in those cases the defendants made threatening statements

directly to witnesses whereas in the instant case Manns communicated the threat to his cellmate.

This is a strained argument. In Copeland, the spoliation evidence at issue involved a statement by

the defendants’ cellmate that he had overheard the defendants discussing plans to hire someone to

harm the Assistant United States Attorney. 321 F.3d at 597. Our conclusion that the district court


       4
        The Mendez-Ortiz panel was conducting plain-error review because the defendant had not
raised Rule 404(b) at trial. 810 F.2d at 78. While the different standard of review applied in that
case would diminish the precedential value of the Mendez-Ortiz panel’s holding that the probative
value of the statements outweighed their unfair prejudicial impact, the standard does not diminish
the precedential value of the general holding that similar threats speak to consciousness of guilt.

                                                 11
erred in admitting the evidence derived from the fact that the threat related to an attorney and not

from the fact that the defendant had not made the threat directly to its subject. We held that “threats

against a prosecutor do not imply a defendant’s intention to destroy evidence” because a prosecutor

does not testify and, thus, that such threats do not satisfy the spoliation evidence admissible pursuant

to Rule 404(b). Id. at 598. By contrast, Manns’s statement to his cellmate demonstrated his intent

to destroy the evidence unfavorable to him (Tackett and Roberts’s testimony) and thus satisfies the

definition of spoliation evidence. Furthermore, in an unpublished opinion we have affirmed the

admission of spoliation evidence regarding statements a defendant made to his former cellmate about

hiring someone to murder his co-defendant. United States v. Hanson, 208 F.3d 215, No. 98-6164,

2000 WL 125863, at *1-*2 (6th Cir. Jan. 25, 2000) (unpublished), cert. denied, 530 U.S. 1210

(2000). Indeed, in Hanson, the defendant did not propose to hire his cellmate directly but merely

talked about hiring another party, and thus the threat was one more step removed from the witness

than in the instant case. In conclusion, we view Manns’s attempts to distinguish our caselaw

regarding spoliation unpersuasive and hold that his alleged statement to Steven Tackett constituted

spoliation evidence admissible under Rule 404(b).

       Manns further argues that the prejudicial effect of the statement outweighed its probative

value and thus that the district court should have excluded the evidence pursuant to Federal Rule of

Evidence 403. Specifically, Manns contends that the statements might have shown only that Manns

wanted revenge on Tackett and Roberts for untruthfully implicating him in their criminal scheme.

Taking the evidence of the threats in the light most favorable to the prosecution and assuming its

maximum probative value, however, we concur with the district court that the evidence’s probative

value clearly outweighs its unfair prejudicial effects. A rational factfinder could conclude that the


                                                  12
threats constituted evidence of consciousness of guilt rather than revenge for untruthful testimony.

Given this conclusion, the prejudicial effect of the statements on Manns’s case would be justified

rather than unfair. We therefore conclude that the district court did not abuse its discretion when it

determined that the probative value of evidence of Manns’s statements to Steven Tackett outweighed

any asserted unfair prejudicial value.

C. Calculation of Marijuana Quantity in Sentencing

       Manns contends that his sentence should be vacated because the district court erred by

finding that Manns conspired to distribute “at least” 1,000 kilograms of marijuana. J.A. at 209 (Sent.

Hr’g Tr. at 6). We review the district court’s factual findings for clear error. United States v.

Hazelwood, 398 F.3d 792, 795 (6th Cir. 2005).

       Manns argues that the district court improperly relied on the testimony of Roberts for the

calculation when other portions of Roberts’s testimony were not credible. Manns’s argument is

foreclosed because the district court based its sentence respecting Count 1 on the same quantity of

drugs that the jury concluded Manns was guilty of conspiring to distribute. “The district court cannot

ignore the jury’s findings as to drug quantity unless there is insufficient evidence to support those

findings.” United States v. Ricketts, 317 F.3d 540, 545 (6th Cir.), cert. denied, 539 U.S. 935 (2003).

Because sufficient evidence existed for a rational factfinder to convict Manns on Count 1, the district

court properly found that Manns entered a conspiracy with intent to distribute at least 1,000

kilograms of marijuana.

                                         III. CONCLUSION

       For the foregoing reasons, we AFFIRM Manns’s convictions and sentence.




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