                        NOT RECOMMENDED FOR PUBLICATION
                                File Name: 05a0706n.06
                                 Filed: August 15, 2005

                                           No. 04-1554

                          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 EASTERN DISTRICT OF
WARNER BERNARD CRIDER,                                  )    MICHIGAN
                                                        )
       Defendant-Appellant.                             )


Before: SILER and DAUGHTREY, Circuit Judges; MARBLEY, District Judge.*

       SILER, Circuit Judge. Defendant Warner Bernard Crider was convicted of conspiracy to

possess with the intent to distribute cocaine base, aiding and abetting distribution of cocaine,

possession with the intent to distribute marijuana, and felonious possession of ammunition. He was

sentenced to concurrent terms of life, life, five, and ten years, respectively. He appeals his

conviction and sentence on several grounds. We AFFIRM his conviction, but REVERSE and

REMAND his case for resentencing.

                                                 I.

       During their investigation, police executed search warrants on more than eleven residences

and one storage facility. At the storage facility, the police uncovered a few pounds of marijuana and

scales. Prior to trial, Crider moved to suppress evidence found in the storage facility on the basis

       *
        The Honorable Algenon L. Marbley, United States District Judge for the Southern District
of Ohio, sitting by designation.
No. 04-1554
United States v. Crider

that the warrant was deficient. The district court determined that although the warrant was deficient,

the officers who relied on the warrant acted in good faith.

       Testimony at Crider’s trial established that he operated upwards of nine “crack houses” in

Jackson, Michigan between 1997 and 2001. Jackson City Police Detective Gary Shuette and Special

Agent Curtis Brunson from the Bureau of Alcohol, Tobacco, Firearms and Explosives (“ATF”) each

testified that Crider admitted committing drug trafficking and gun possession crimes. Co-

conspirator Michael McGuire testified that he accompanied Crider to New York to buy drugs, and

that he had seen Crider cook crack cocaine. Co-conspirator Arthur Davis testified that Crider carried

firearms regularly, and that Crider instructed Davis to kill two potential witnesses.

       After his conviction, Crider moved for a judgment notwithstanding the verdict or,

alternatively, for a new trial, arguing that the prosecutor withheld Brady material. The court denied

this motion on the merits and as untimely. In the Presentence Report (“PSR”), Crider’s counts were

grouped together. Although his base offense level was calculated at 38 for conspiring to distribute

more than 1.5 kilograms of cocaine base, USSG § 2D1.1(c)(1), he was convicted of conspiring to

distribute more than 50 grams. The PSR also recommended several upward adjustments: a 2-level

increase for possession of a firearm, USSG § 2D1.1(b)(1); a 4-level increase for having a leadership

role, USSG § 3B1.1(a); and a 2-level increase for obstruction of justice, USSG § 3C1.1. Three

criminal history points were assessed for an assault on a co-conspirator. The district court adopted

the PSR and determined Crider’s offense level to be 43 with a criminal history level of V, and

sentenced him to life in prison.




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United States v. Crider

                                                     II.

A. Felon-in-Possession Charge

       We review de novo whether Crider’s conviction for being a felon in possession of

ammunition is unconstitutional. United States v. Thompson, 361 F.3d 918, 920 (6th Cir. 2004).

However, his Commerce Clause challenge is foreclosed by our prior decisions. See United States

v. Loney, 331 F.3d 516, 524 (6th Cir. 2003); see also Thompson, 361 F.3d at 923 (noting that Lopez

and Morrison do not cast doubt on Congress’s power to enact 18 U.S.C. § 922(g)).

       Additionally, viewing the evidence in the light most favorable to the prosecution, Crider’s

conviction is supported by substantial evidence because “a rational jury could [have found] the

elements of [the] crime beyond a reasonable doubt.” United States v. Sawyers, 409 F.3d 732, 735

(6th Cir. 2005). To sustain a conviction, the government must prove that: 1) Crider was convicted

of a crime punishable by a term exceeding one year; 2) he knowingly possessed ammunition; and

3) the possession was in or affected commerce. Id. First, under Michigan law, Crider is a felon

because his right to carry a firearm is restricted, see M.L.C.S. § 750.224f(2), and he never applied

to restore his rights. See United States v. Campbell, 256 F.3d 381, 392 (6th Cir. 2001). Second, he

had constructive possession of the ammunition found in his house. See United States v. Schreane,

331 F.3d 548, 560 (6th Cir. 2003). Finally, an expert testified that the ammunition was not produced

in Michigan, so it necessarily traveled in interstate commerce. Thus, we affirm the conviction on

this charge.




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United States v. Crider

B. The Validity of the Search Warrant

         The district court found that the warrant to search Crider’s storage locker lacked probable

cause because the supporting affidavit failed to mention that the informant specifically pointed out

storage unit number 5 as belonging to defendant Crider. See United States v. Carpenter, 360 F.3d

591, 594 (6th Cir. 2004). However, the fruits of an otherwise illegal search may still be admitted

in court, so long as the officers acted in good faith when executing the warrant. United States v.

Leon, 468 U.S. 897, 922 (1984). We review de novo whether the officers are entitled to the

Leon exception. United States v. Helton, 314 F.3d 812, 824 (6th Cir. 2003). Provided that there is

a “minimally sufficient nexus between the illegal activity and the place to be searched,” the evidence

is admissible at trial. Carpenter, 360 F.3d at 596. In other words, the affidavit in support of the

warrant must be more than “bare bones.” See United States v. Laughton, 409 F.3d 744, 748 (6th Cir.

2005).

         The officers who searched Crider’s locker acted in good faith because the affidavit

supporting the warrant was more than “bare bones,” and contained a “minimally sufficient nexus”

connecting the illegal activity and the place to be searched. The affidavit describes the place to be

searched as “4131 W. Michigan Ave. Also known as ‘Go Blue Storage,’ specifically storage unit

number 5.” It noted that an informant told the police about the storage unit, and that he had a code

that would allow access to the facility. This information was corroborated. Also, unit number 5 had

a Master lock, and Crider had a Master key when he was arrested. Although the affidavit never

specifically referenced Crider’s control of storage unit number 5, the additional facts constitute a




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No. 04-1554
United States v. Crider

“minimally sufficient nexus” between the particular storage unit and the items found therein. Thus

the district court did not err in admitting the evidence found therein.

C. Prosecutorial Misconduct

       Crider alleges a series of errors, which he claims constitute prosecutorial misconduct both

separately and cumulatively. He first argues that the prosecution denied him exculpatory evidence

in violation of Brady v. Maryland, 373 U.S. 83, 87 (1963). We review this argument de novo when

properly preserved below, United States v. Crayton, 357 F.3d 560, 568-69 (6th Cir. 2004), and we

review for plain error allegations that are made for the first time to this court. United States v.

Emuegbunam, 268 F.3d 377, 406 (6th Cir. 2001).

       To demonstrate that a Brady violation occurred, Crider must point to the evidence in question

and show that the omission was prejudicial such that the trial would have yielded a different result

or that the trial would be cast “in such a different light as to undermine confidence in the verdict.”

See Spirko v. Mitchell, 368 F.3d 603, 609 (6th Cir. 2004). However, if the defense is “aware of the

essential facts that would enable him to take advantage of the exculpatory evidence, the

government’s failure to disclose it [does] not violate Brady.” Id. (quoting United States v. Todd, 920

F.2d 399, 405 (6th Cir. 1990)). All of Crider’s Brady claims are without merit because in all

instances of allegedly exculpatory evidence, the information sought was either given to him before

the trial’s end, see Crayton, 357 F.3d at 568-69, or it was not exculpatory. Even if Crider could

point to a Brady violation, he cannot establish any prejudicial effect.

       Crider also sought a mistrial following an unprompted statement from McGuire concerning

Crider’s involvement in a homicide. We review the denial of a motion for mistrial for an abuse of


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No. 04-1554
United States v. Crider

discretion. See United States v. Ursery, 109 F.3d 1129, 1133 (6th Cir. 1997). When a witness

makes an unprompted, inflammatory statement to the jury, “instructions to the jury to disregard it

will ordinarily cure the error.” Id. (citing United States v. Wells, 431 F.2d 432, 433 (6th Cir. 1970)).

A new trial is necessary only “if the erroneously admitted evidence is of an exceptionally prejudicial

character, such that its withdrawal from consideration by the jury cannot be expected to remove the

harm.” United States v. Carr, 5 F.3d 986, 992-93 (6th Cir. 1993). The statement made by McGuire

was not “exceptionally prejudicial [in] character” such that the curative instructions given amounted

to an abuse of discretion.

        Additionally, the district court’s denial of a mistrial when the prosecutor “vouched” for

government witnesses did not amount to an abuse of discretion, United States v. Chambers, 944

F.2d 1253, 1263 (6th Cir. 1991), or render the trial fundamentally unfair, United States v. Trujillo,

376 F.3d 593, 608 (6th Cir. 2004), because none of the prosecutor’s statements was “flagrant.”

United States v. Beverly, 369 F.3d 516, 543 (6th Cir. 2004) (citing United States v. Francis, 170 F.3d

546, 549 (6th Cir. 1999)). The statements made by the prosecutor relating to what “we know” or

Crider’s “reign” as a drug lord were not intended to mislead the jury, they were relatively isolated,

the prosecutor made them unintentionally, and the evidence at trial was overwhelming. Id. (citing

United States v. Green, 305 F.3d 422, 429-30 (6th Cir. 2002)). Additionally, Crider objected to the

remarks, and the judge issued curative instructions. See United States v. Galloway, 316 F.3d 624,

633 (6th Cir. 2003).

        Finally, Crider alleges that the prosecutor utilized perjury in his trial. We review these

allegations de novo. Trujillo, 376 F.3d at 608. To establish that the government suborned perjury,


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No. 04-1554
United States v. Crider

Crider must show: “(1) the statement was actually false; (2) the statement was material; and (3) the

prosecution knew it was false.”      Coe v. Bell, 161 F.3d 320, 343 (6th Cir. 1998). The suspect

testimony must actually be perjured, rather than contain “mere inconsistencies.” Id. None of

Crider’s allegations of perjury satisfy this test. Most of the statements were mere inconsistencies,

and even if he could prove that the statements were false and material, he cannot establish that the

prosecution knew that the witnesses would testify falsely.

       Crider’s argument that the cumulative effect of these alleged errors denied him his right to

a fair trial is meritless. See Trujillo, 376 F.3d at 614. We affirm Crider’s conviction on all counts.

D. Resentencing in Light of Booker

       Because this case can be remanded under plain error review, we will focus on the four-part

test articulated in United States v. Oliver, 397 F.3d 369 (6th Cir. 2005). Reversal is proper if there

is error that is plain which affects the defendant’s substantial rights. Id. at 378. If these elements

are met, we can choose to exercise our jurisdiction and reverse if the error “seriously affects the

fairness, integrity, or public reputation of [the] judicial proceedings.” Id. (citing Johnson v. United

States, 520 U.S. 461, 466 (1997)).

       The district court erred when it sentenced Crider under a mandatory system of sentencing

guidelines. See United States v. Booker, 125 S.Ct. 738, 756 (2005). These errors are now plain.

United States v. McDaniel, 398 F.3d 540, 549 (6th Cir. 2005) (citing Oliver, 397 F.3d at 378).

Under United States v. Barnett, 398 F.3d 516 (6th Cir. 2005), we assume that the error affected

Crider’s substantial rights unless “the trial record contains clear and specific evidence that the

district court would not have, in any event, sentenced the defendant to a lower sentence under an


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No. 04-1554
United States v. Crider

advisory Guidelines range.” Id. at 529. Because the record is not clear as to how the district court

would have ruled were the Guidelines merely advisory, Crider has established prejudice. We

exercise our discretion and reverse and remand this case for resentencing. We find no error in the

calculation of the offense level or criminal history, but the matter is remanded for reconsideration

of the sentence pursuant to Booker.

       AFFIRMED in part, and REVERSED and REMANDED in part.




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