                         NOT RECOMMENDED FOR PUBLICATION
                                File Name: 20a0233n.06

                                     Case Nos. 19-5197/5582

                          UNITED STATES COURT OF APPEALS
                               FOR THE SIXTH CIRCUIT
                                                                                   FILED
                                                                              Apr 29, 2020
UNITED STATES OF AMERICA,                            )                   DEBORAH S. HUNT, Clerk
                                                     )
       Plaintiff-Appellee,                           )
                                                     )       ON APPEAL FROM THE UNITED
v.                                                   )       STATES DISTRICT COURT FOR
                                                     )       THE EASTERN DISTRICT OF
TONY BRITTON and JAMES JONES,                        )       KENTUCKY
                                                     )
      Defendants-Appellants.                         )
_________________________________________                    OPINION


       BEFORE: GILMAN, DONALD, and LARSEN, Circuit Judges.

       RONALD LEE GILMAN, Circuit Judge. Tony Britton and James Jones were indicted

for conspiring with six other codefendants to distribute oxycodone, in violation of 21 U.S.C. § 846.

Britton and three of the other codefendants were also indicted for aiding and abetting the burglary

of a Kentucky pharmacy to obtain oxycodone, in violation of 18 U.S.C. §§ 2 and 2118(b). After

proceeding to trial, the jury found both Britton and Jones guilty as charged. The district court then

sentenced Britton to 72 months of imprisonment and Jones to 108 months of imprisonment. Each

filed a separate appeal, which this court consolidated.

       Britton argues that the district court committed reversible error when it did not suppress

the results of a search warrant for historical cell-site location information (CSLI). He further

contends that the district court erred when it did not investigate potential juror bias, and when it
Case Nos. 19-5197/5582, United States v. Britton et al.


admitted an exhibit that included annotations indicating the location of certain cell-phone towers.

Jones in turn argues that the evidence was insufficient to support his conviction. For the reasons

set forth below, we AFFIRM the judgment of the district court as to both defendants.

                                       I. BACKGROUND

A.     Factual background

       Between December 2010 and October 2015, a group of individuals burglarized small

pharmacies throughout the southeastern United States. These individuals stole drugs—primarily

oxycodone and hydrocodone—from the pharmacies. In September 2015, the police stopped a

vehicle that had been identified as being used in the burglary of one of these pharmacies. The

owner of the vehicle, Robert Nunley, was subsequently arrested. Nunley’s arrest led to the arrest

of seven additional individuals, including Britton and Jones.

B.     Procedural background

       A federal grand jury indicted all eight of the individuals in November 2017. Six of the

codefendants pleaded guilty to drug conspiracy. The remaining two—Britton and Jones—were

tried by a jury. Three of the other codefendants testified for the government at trial.

       Prior to trial, Britton moved to suppress the results of two search warrants from 2015 and

2016 that had uncovered subscriber information and historical CSLI for the number assigned to

his mobile phone. The district court denied Britton’s motion to suppress. Britton also filed a

motion in limine seeking to exclude his CSLI data. That motion was also denied. Finally, Britton

objected to an exhibit illustrating a map with two cell-tower locations near the site of a pharmacy

burglary in Corbin, Kentucky that had pink circles surrounding the cell-phone towers. Britton

objected that the circles were suggestive of the signal range of the towers and unfairly implied that

his phone was located within that range. The district court overruled Britton’s objection.



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       As for Jones, he moved for a judgment of acquittal at the close of the government’s case,

arguing that the evidence was insufficient to convict him. The district court denied the motion.

Jones renewed his motion at the close of the case and again after his conviction, but without

success.

                                          II. ANALYSIS

A.     Standard of review

       Britton first argues that the district court should have granted his motion to suppress.

“When reviewing the denial of a motion to suppress, we will set aside the district court’s factual

findings only if they are clearly erroneous, but will review de novo the court’s conclusions of law.”

United States v. Lee, 793 F.3d 680, 684 (6th Cir. 2015). Britton next argues that the district court

failed to properly investigate a claim of potential juror bias. Because Britton failed to make an

objection below, we review this claim for plain error. See United States v. Cook, 550 F. App’x

265, 270 (6th Cir. 2014) (citing Fed. R. Crim. P. 52(b) and United States v. Olano, 507 U.S. 725,

732 (1993)).    Finally, Britton argues that the district court improperly admitted an exhibit

illustrating the location of the cell-phone towers. We review the district court’s evidentiary rulings

under the abuse-of-discretion standard. United States v. Ashraf, 628 F.3d 813, 826 (6th Cir. 2011).

Even if evidence was erroneously admitted, we will “reverse only where the district court’s

erroneous admission of evidence affects a substantial right of the party.” United States v. White,

492 F.3d 380, 398 (6th Cir. 2007) (citing Fed. R. Evid. 103(a)).

       Jones in turn argues that there was insufficient evidence to support his conviction. We

review “de novo a denial of a motion for judgment of acquittal.” United States v. Ramirez, 635

F.3d 249, 255 (6th Cir. 2011) (quoting United States v. Solorio, 337 F.3d 580, 588 (6th Cir. 2003)).

“Because the issue is one of legal sufficiency, the court ‘neither independently weighs the


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evidence, nor judges the credibility of witnesses who testified at trial.’” Id. (quoting United States

v. Talley, 164 F.3d 989, 996 (6th Cir. 1999)).

B.      Motion to suppress

        Britton first challenges the cell-site data obtained through the 2016 search warrant. He

bases his argument on the Supreme Court’s decision in Carpenter v. United States, 138 S. Ct. 2206

(2018) (Carpenter II), which held that the state must obtain a warrant before “compelling a

wireless carrier to turn over a subscriber’s CSLI.” Id. at 2221.

        Carpenter II is retroactive for the purposes of this proceeding. See Davis v. United States,

564 U.S. 229, 243 (2011). “But exclusion of evidence does not automatically follow from the fact

that a Fourth Amendment violation occurred.” Id. at 244. “[W]hen the police conduct a search in

objectively reasonable reliance on binding appellate precedent, the exclusionary rule does not

apply.” Id. at 249–50. Binding precedent at the time of the 2016 warrant had established that

defendants “lack any property interest in cell-site records created and maintained by their wireless

carriers.”   United States v. Carpenter, 819 F.3d 880, 888 (6th Cir. 2016) (Carpenter I).

Accordingly, “the government’s collection of business records containing cell-site data was not

[considered] a search under the Fourth Amendment,” and a warrant was not required. Id. at 890.

        The police in the present case in fact obtained warrants for their search and seizure of

Britton’s CSLI. But Britton argues that the 2016 warrant was invalid because it lacked probable

cause and did not specify the place to be searched. This argument overlooks the fact that (1) a

warrant was not required, id.; and (2) even if a warrant had been required, the exclusionary rule

does not apply “when the police conduct a search in ‘objectively reasonable reliance’ on a warrant

later held invalid,” Davis, 564 U.S. at 238–39 (quoting United States v. Leon, 468 U.S. 897, 922

(1984)). In other words, the warrant’s validity is immaterial to the question at hand because the


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officers acted in reasonable reliance on a warrant that was not even required under then-existing

law. See, e.g., United States v. Carpenter, 926 F.3d 313, 317–18 (6th Cir.), on reh’g, 788 F. App’x

364 (6th Cir. 2019) (Carpenter III). The district court thus did not err in denying Britton’s motion

to suppress.

C.      Potential juror bias

        Britton next argues that a new trial is warranted based on potential juror bias. The jurors

were asked at jury selection whether they knew Britton. No one responded in the affirmative. On

the third day of trial, however, a juror told the jury administrator that “she thinks she actually might

know one of the defendants, or one of the defendants might know her, and feels like one of the

defendants might actually know where she lives.” The juror did not ask to be excused. She did,

however, express to the trial judge “some uncomfortableness about her service.” When the trial

judge asked counsel for input, Britton’s counsel stated: “I have no problem with doing nothing at

this point and then figuring out where we should go after we review this situation.” Jones’s counsel

similarly stated: “[W]e’ll take a look at it and see. I don’t think anything needs to be done.” The

judge agreed, saying: “My instinct is we shouldn’t do anything.” No one raised the issue again.

        Britton now argues that the trial judge should have further investigated the juror in order

to determine whether her presence would taint the trial. He argues in particular that the judge

should have held a hearing to “determine the circumstances, the impact upon the juror and whether

or not [they were] prejudicial.”

        The key case relied on by Britton is Remmer v. United States, 347 U.S. 227 (1954), which

requires a hearing “when a defendant alleges that [juror bias] has tainted a trial.” United States v.

Walker, 1 F.3d 423, 431 (6th Cir. 1993) (quoting United States v. Zelinka, 862 F.2d 92, 95–96 (6th

Cir. 1988)). But Britton never made such an allegation. And even if he had, “no presumption of


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prejudice arises,” and “the defendant bears the burden of proving actual juror bias.” Id. (quoting

Zelinka, 862 F.2d at 96). Britton points to no evidence of actual bias in the record. His claims are

purely speculative. Accordingly, the district court did not err by declining to hold a Remmer

hearing.

        Nor did the district court err by not conducting a further inquiry regarding the juror in

question. Britton seems to suggest that, even in the absence of a Remmer hearing, some additional

inquiry was necessary. His argument lacks merit. In United States v. Solorio, 337 F.3d 580 (6th

Cir. 2003), this court made clear that a party seeking a new trial based on a juror’s concealment of

information can obtain a new trial only if (1) the juror “deliberately conceals material information

on voir dire,” or (2) the party shows “actual bias.” Id. at 595. A juror in Solorio had come forward

mid-trial after realizing that he had worked with a witness in the case. He was nonetheless

permitted to serve, and this court held that the defendants were not entitled to a new trial because

there was no evidence of either deliberate concealment or actual bias. Id. at 596. The same is true

in the present case. Because Britton has made no showing of deliberate concealment or actual

bias, he is not entitled to a new trial on this basis.

D.      The annotated exhibit

        Britton’s final argument is that the use of pink circles surrounding the location of the cell

towers in question unfairly suggested that Britton’s phone was found present within the circles.

At trial, the district court overruled all of Britton’s objections with regard to this issue. It explained

that the government would “make it clear” what the circles did and did not represent, and that

Britton could do the same on cross-examination. Indeed, the direct testimony of the government’s

witness pointed out that the sole purpose of the pink circles was “to make it easier to see . . . the




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cell tower,” and expressly disclaimed that the pink circles indicated anything about the signal range

of the tower. This point was also clarified on cross-examination.

       Britton now asks us to reverse the district court’s evidentiary rulings. We decline to do so

because all “[r]elevant evidence is admissible unless . . . provide[d] otherwise.” Fed. R. Evid. 402.

One “otherwise” provision is that a court may exclude relevant evidence “if its probative value is

substantially outweighed by a danger of one or more of the following: unfair prejudice, confusing

the issues, misleading the jury, undue delay, wasting time, or needlessly presenting cumulative

evidence.” Fed. R. Evid. 403. With regard to Rule 403, Britton failed to establish that the pink

circles were prejudicial, much less that any prejudice they posed substantially outweighed their

probative value. The circles were introduced for a limited purpose, and that purpose was made

clear on both direct and cross-examination. There is no indication that the jury believed otherwise.

The district court therefore did not abuse its discretion by admitting the exhibit.

E.     Sufficiency of the evidence

       We now turn to Jones’s argument that the district court improperly denied his motion for

acquittal based on insufficient evidence. In order “[t]o sustain a conviction for drug conspiracy

under section 846, the government must prove beyond a reasonable doubt: (1) an agreement to

violate drug laws; (2) knowledge of and intent to join the conspiracy; and (3) participation in the

conspiracy.” United States v. Gardner, 488 F.3d 700, 710 (6th Cir. 2007). “[O]ur court on appeal

will reverse a judgment for insufficiency of evidence only if this judgment is not supported by

substantial and competent evidence upon the record as a whole, and . . . this rule applies whether

the evidence is direct or wholly circumstantial.” United States v. Stone, 748 F.2d 361, 363 (6th

Cir. 1984).




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       Jones argues that there was no physical evidence to connect him to the crime. He contends

that the only evidence offered against him was the testimony of three of his codefendants, which

he maintains was insufficient to find him guilty beyond a reasonable doubt. But he cites no caselaw

in support of his argument, and instead simply summarizes the trial testimony against him. That

trial testimony implicated Jones in the conspiracy, and the testimony was corroborated by security

video, photos, and text messages that Jones exchanged with Nunley.

       This court does not ask itself “whether it believes the evidence at the trial established guilt

beyond a reasonable doubt.” United States v. Lee, 359 F.3d 412, 416 (6th Cir. 2004) (quoting

Jackson v. Virginia, 443 U.S. 307, 319 (1979)). It instead asks whether, “after viewing the

evidence in the light most favorable to the prosecution, any rational trier of fact could have found

the essential elements.” Jackson, 443 U.S. at 319 (emphasis in original). And we have “long

recognized that we do not weigh the evidence, consider the credibility of witnesses or substitute

our judgment for that of the jury.” United States v. Hilliard, 11 F.3d 618, 620 (6th Cir. 1993).

That is essentially what Jones is asking us to do. The jury in the present case found that the trial

testimony was credible and that sufficient evidence existed to convict Jones. Its verdict was

supported by “substantial and competent evidence” in the form of testimony, video, photos, and

text messages. See Stone, 748 F.2d at 363.

       Moreover, “[t]he general hesitancy to disturb a jury verdict applies with even greater force

when a motion of acquittal has been thoroughly considered and subsequently rejected by the trial

judge.” Lee, 359 F.3d at 418–19. The district court in the present case reviewed the trial evidence

and concluded that there was sufficient evidence to support the jury’s verdict. Jones has failed to

present any convincing argument to the contrary.




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                                     III. CONCLUSION

       For all of the reasons set forth above, we AFFIRM the judgment of the district court as to

both Britton and Jones.




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