                NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                           File Name: 11a0431n.06

                                             No. 08-1336

                           UNITED STATES COURT OF APPEALS
                                FOR THE SIXTH CIRCUIT
                                                                                        FILED
UNITED STATES OF AMERICA,                          )                               Jun 29, 2011
                                                   )
                                                                             LEONARD GREEN, Clerk
       Plaintiff-Appellee,                         )
                                                   )
v.                                                 )    ON APPEAL FROM THE UNITED
                                                   )    STATES DISTRICT COURT FOR THE
ANDRE VAN,                                         )    EASTERN DISTRICT OF MICHIGAN
                                                   )
       Defendant-Appellant.                        )




       Before: SUHRHEINRICH, MOORE, and COOK, Circuit Judges.


       COOK, Circuit Judge. A jury convicted Andre Van of drug distribution, possession of a

firearm in furtherance of a drug-trafficking offense, and possession of a firearm by a convicted felon.

The district court sentenced Van to 360 months’ imprisonment. Van now appeals, claiming that the

district court (1) improperly denied his Rule 8(a) motion to sever the felon-in-possession charge; (2)

violated his due process rights by, among other things, describing a federal agent as an expert

witness; and (3) failed to recognize the advisory nature of the Sentencing Guidelines. We affirm his

conviction and sentence.


                                                  I.
No. 08-1336
USA v. Van


        A grand jury charged Andre Van with distribution of heroin and crack cocaine (counts one,

three, four, and five); possession of a firearm in furtherance of a drug-trafficking crime (count two);

and possession of a firearm by a convicted felon (count six). The drug charges stem from Van’s

interactions with an undercover ATF Special Agent, Michael Yott, who claimed that Van sold him

drugs on four separate occasions over the course of a week. The felon-in-possession count arose a

week after these drug buys when Detroit police discovered a firearm in Van’s vehicle during a traffic

stop.


        Before trial, Van filed a Rule 8(a) motion to sever count six of the indictment, claiming its

joinder would allow the government to “bootstrap” its elements into count two (possession of a

firearm in furtherance of a drug-trafficking crime), which occurred nearly two weeks earlier. The

district court denied the motion for lack of prejudice, and Van proceeded to trial on all six counts.


        At trial, Van admitted to two of the drug buys but denied responsibility for the other two,

including the purchase underlying the possession-of-a-firearm-in-furtherance-of-drug-trafficking

charge. Van claimed that his nephew conducted those sales and that Van merely recommended Yott

as a reliable customer. Yott wore a wire and recorded three of the transactions; the government

introduced the recordings into evidence. It also introduced recorded telephone conversations

between Van and Yott arranging for drug purchases.


        Yott testified that Van had a firearm either nearby or on his person during all four

transactions. According to Yott, during one buy, he and Van even “discussed the caliber of the

                                                 -2-
No. 08-1336
USA v. Van


firearm, as well as a couple of jokes . . . about, you know, don’t shoot yourself, that type of thing.”

Van does not contest that, during the initial drug buy, a revolver rested on the coffee table and a

shotgun leaned against the wall. But Van disputes Yott’s claim that Van carried this same revolver

during the other transactions. Yott conceded that he could see only part of the gun during the latter

three drug buys.


       After the third drug purchase, Yott—who then knew Van only as “Dre”—directed two

officers to conduct a traffic stop of Van’s vehicle to procure identification. During this stop, one of

the officers observed a brown leather holster in the bed of the truck, but did not see drugs or a

firearm. While Van claims that the officers searched him and his truck, this same officer testified

that he did not search Van, but did not recall whether his partner did.


       A week after Van’s final sale to Yott, Detroit police stopped Van for a traffic violation. Two

officers attested that, as they attempted to pull Van over, they witnessed him bend downward “as [if]

he was placing something by his feet or under the seat.” As the officers approached, Van started to

step out of his truck and one of the officers observed an empty holster on his left hip. When

questioned about the empty holster, Van said that he “[wore] it for show.” One of the officers

spotted a blue steel .38-caliber revolver lying under the driver’s seat. Van admitted that he did not

have a concealed-carry permit, and the officers arrested him.


       Detroit Police Sergeant Ramon Childs interviewed Van following his arrest. Childs testified

that Van admitted to having a gun when arrested. According to Childs, Van said that “he had

                                                 -3-
No. 08-1336
USA v. Van


got[ten] shot almost two weeks ago, and he . . . forgot his nephew had the pistol in the truck.” When

pressed by Childs as to why he really had the gun in his truck, Van said “for my protection.” After

the interview, Van initialed these statements. At trial, however, he denied bending forward in his

truck, and again claimed that his nephew put the gun in his vehicle and that he did not know it was

there.


         A few weeks after Van’s interview with Childs, ATF Special Agent Gregory Lotoczky

videotaped an interview with Van. According to Lotoczky, Van admitted to selling crack. He also

admitted to having a .38-caliber revolver that “he would wear . . . when he was at the house in his

waistband” and “would . . . carry . . . out to his truck if he was going to the bank or something like

that.” Van maintained, however, that the gun police discovered at the traffic stop “didn’t belong to

him” and “was put in [his truck] by his nephew.” Van refused to initial the majority of his

statements as recorded by Lotoczky—including that he carried a .38-caliber revolver.


         At trial, Van denied telling Lotoczky that he sold crack cocaine, carried the .38-caliber

revolver in his waistband, or carried a firearm for protection. He accused Lotoczky of “changing the

story around,” and denied initialing some of the statements. Following Van’s testimony, the

government recalled Lotoczky. He testified that, on the night before, he reviewed the videotape of

his interview with Van; and he confirmed that Van admitted to selling crack cocaine and to carrying

the .38-caliber revolver in his waistband when he was at home. Lotoczky admitted to accusing Van

of lying at certain times during the interview.


                                                  -4-
No. 08-1336
USA v. Van


       The jury convicted Van on all counts. Under the career-offender guideline, Van’s advisory

Guidelines range was 360 months to life. See U.S. Sentencing Guidelines Manual § 4B1.1. The

district court sentenced Van to 360 months’ imprisonment. He now appeals.


                                                  II.


                                                  A.


       Van first claims that the district court erred in denying his pretrial Rule 8(a) motion to sever

his felon-in-possession-of-a-firearm charge. Under Rule 8(a),


       [t]he indictment or information may charge a defendant in separate counts with 2 or
       more offenses if the offenses charged—whether felonies or misdemeanors or
       both—are of the same or similar character, or are based on the same act or
       transaction, or are connected with or constitute parts of a common scheme or plan.


Fed. R. Crim. P. 8(a). We typically review this issue de novo, United States v. Locklear, 631 F.3d

364, 368 (6th Cir. 2011), by examining the allegations on the face of the indictment, United States

v. Deitz, 577 F.3d 672, 691 (6th Cir. 2009), cert. denied, 130 S. Ct. 1720 (2010).1 But we forgo this

analysis because we determine that, even if the indictment improperly joined the counts against Van,

any error qualifies as harmless. See Locklear, 631 F.3d at 369 (noting that a finding of misjoinder

is subject to harmless-error review); Miller v. Stovall, 608 F.3d 913, 927 (6th Cir. 2010) (recognizing


       1
        As the government acknowledged at oral argument, failure to renew a Rule 8(a) motion at
the close of the evidence does not forfeit an improper-joinder claim. See United States v. Chavis,
296 F.3d 450, 457–58 (6th Cir. 2002).

                                                 -5-
No. 08-1336
USA v. Van


that this court may conduct harmless-error review sua sponte but has no obligation to do so), petition

for cert. filed, 79 U.S.L.W. 3404 (U.S. Dec. 21, 2010); United States v. Mitts, 396 F. App’x 296,

302–03 (6th Cir. 2010) (applying harmless-error review despite government’s failure to argue for

such review on appeal), petition for cert. filed, --- U.S.L.W. ---- (U.S. Feb. 11, 2011) (Nos. 10-9035,

10A546).


        Under harmless-error review, we reverse only if the error affected the defendant’s substantial

rights by “hav[ing] a substantial and injurious effect or influence in determining the jury’s verdict.”

Locklear, 631 F.3d at 369 (internal quotation marks and citation omitted). Factors demonstrating

harmlessness include (1) the issuance of limiting instructions to the jury; (2) overwhelming evidence

of guilt; and (3) the admissibility of evidence concerning the misjoined counts. Chavis, 296 F.3d

at 461. The presence of each of these mitigating factors in Van’s case supports our finding of

harmless error.


        “[T]he danger of prejudice resulting from improper propensity inferences can be reduced

significantly by proper curative instructions.” Id. at 461. Where the court issues such instructions,

“[e]rror based on misjoinder is almost always harmless.” United States v. Cody, 498 F.3d 582, 587

(6th Cir. 2007). “[W]e should presume that the jury followed this instruction and did not make an

improper propensity inference.” Chavis, 296 F.3d at 462. The district court thus likely offset any

potentially prejudicial effect of the joinder with its curative instruction:




                                                 -6-
No. 08-1336
USA v. Van


                 This defendant has been charged with several crimes. The number of charges
       itself is no evidence of guilt and this should not influence your decision in any way.
       It’s your duty to separately consider the evidence that relates to each charge and to
       return a separate verdict for each one. For each charge, you must decide whether the
       Government has presented proof beyond a reasonable doubt that the Defendant is
       guilty of that particular charge. Your decision on one charge, whether it is guilty or
       not guilty, should not influence your decision on any of the other charges.


This court has previously found virtually identical instructions to significantly reduce the potential

prejudice of any misjoinder. See Cody, 498 F.3d at 588; Chavis, 296 F.3d at 462.


       The government, moreover, presented substantial—and possibly overwhelming—evidence

against Van on the possession-of-a-firearm-in-furtherance-of-drug-trafficking charge. Yott testified

that Van sold him crack cocaine and heroin while standing only a few feet from both a revolver and

a shotgun. Although Van denied responsibility for that drug sale, he admitted that a revolver sat on

the table during the transaction. Yott testified that Van carried this revolver during the ensuing drug

buys, and that he and Van discussed the caliber of the firearm during a recorded buy—the tape of

which the government played for the jury. Lotoczky corroborated Yott’s statements, claiming that

Van admitted to “carrying a 38 revolver in [his] waistband.” Although Van refused to initial this

statement following the interview, and denied making it, Lotoczky identified the portions of the

interview videotape that reflected this statement.


       Finally, Van does not contend that severing the felon-in-possession charge would have barred

the   government      from    introducing     the    underlying    firearm    in   support    of   the

possession-of-a-firearm-in-furtherance-of-drug-trafficking charge.       He posits merely that the

                                                 -7-
No. 08-1336
USA v. Van


government could not have introduced evidence of his felon status. The prejudicial effect of this

information, however, was limited because the specific crime underlying his previous conviction was

never revealed to the jury since Van stipulated to his felony status, “thereby preventing the jury from

hearing testimony about it.” See Locklear, 631 F.3d at 369.


       Based on these factors, any error the district court may have committed in permitting joinder

of these counts qualifies as harmless.


                                                  B.


       Van next demands reversal of his convictions on counts one, two, three, and six, contending

that the district court violated his right to due process and a fair trial when it described Yott as an

expert witness without either formally qualifying him as such or distinguishing between Yott’s

factual and expert testimony. According to Van, this oversight bolstered Yott’s “suspect” credibility.


       In the challenged statement, the district court instructed the jury as follows:


               You have heard the testimony of Michael Yott, who testified as an expert
       witness and as a fact witness. Regarding his expert testimony, you should treat his
       expert opinion as any other expert opinion. You do not have to accept an expert’s
       opinion. In deciding how much weight you give to it, you should consider the
       witness’[s] qualifications and how he reached his conclusions. Remember, that you
       alone decide how much of a witness’[s] testimony to believe and how much weight
       it deserves. You should consider that he was also a fact witness and participated in
       the investigation of this case in deciding how much of his expert testimony to believe
       or what weight to give it, if any.



                                                 -8-
No. 08-1336
USA v. Van


Van’s counsel objected to this instruction, arguing that Yott “was never qualified as an expert in this

case.” The district court acknowledged that Yott was not formally qualified as an expert, but held

that the instruction could not “credibly be said to prejudice the jury in any way,” especially because

Yott “was, to some extent, treated as an expert.”


       “We review challenges to jury instructions under the abuse-of-discretion standard.” United

States v. Williams, 612 F.3d 500, 506 (6th Cir.), cert. denied, 131 S. Ct. 367 (2010).2 “The Court

considers the jury instructions as a whole to determine whether they fairly and adequately submitted

the issues and applicable law to the jury.” Nolan v. Memphis City Sch., 589 F.3d 257, 264 (6th Cir.

2009) (internal quotation marks and citation omitted). “A judgment may be reversed based upon an

improper jury instruction only if the instructions, viewed as a whole, were confusing, misleading,

or prejudicial.” Williams, 612 F.3d at 506 (internal quotation marks and citation omitted).


       Van’s argument for reversal based on the district court’s description of Yott as an “expert

witness” during this jury instruction fails. Though Van cites a string of cases opining that courts

should not describe a witness as an expert, see, e.g., United States v. Johnson, 488 F.3d 690, 697–98

(6th Cir. 2007), none supports reversal of Van’s convictions. The judge referred to Yott as an expert

only once. And he did so in the context of a cautionary jury instruction, thereby mitigating any



       2
         The government argues for plain-error review, claiming that, while Van objected to the
disputed jury instruction below, he did so solely because Yott “was never qualified as an expert in
this case.” But we need not determine whether Van sufficiently preserved the basis for his objection
articulated here because his argument fails even abuse-of-discretion review.

                                                 -9-
No. 08-1336
USA v. Van


additional credence the jury might have granted. See United States v. Serafino, 281 F.3d 327, 331

(1st Cir. 2002) (finding “whatever special aura the jury might otherwise have attached to the term

‘expert’” mitigated by instruction that “[e]xpert testimony should be considered just like other

testimony” (alteration in original) (emphasis omitted) (internal quotation marks and citation

omitted)).


       Van’s argument that the district court compounded this supposedly improper jury instruction

by failing to qualify Yott as an expert similarly falters. To the extent that Yott’s general statement

regarding the frequency with which drug dealers carry firearms or his specific statements about the

gun he observed in this case qualify as expert testimony, the district court appropriately permitted

Yott—who had served as a Detroit police officer for two years and as an ATF special agent for

twenty years—to offer such testimony without first formally qualifying him as an expert. See United

States v. Cobb, 397 F. App’x 128, 139 (6th Cir. 2010) (“If a witness’s qualifications are obvious, we

have found that there is no need to formally qualify him as an expert.”), cert. denied, 131 S. Ct. 1801

(2011); United States v. Lopez-Medina, 461 F.3d 724, 742–43 (6th Cir. 2006) (finding no abuse of

discretion in district court’s failure to qualify Drug Enforcement Administration agents before

allowing their expert testimony).


       Relying on Lopez-Medina, Van argues that the district court’s failure to issue a cautionary

instruction informing the jury of Yott’s dual role as an expert and fact witness both before he offered

any opinion evidence and again before deliberations merits reversal. But Lopez-Medina does not


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No. 08-1336
USA v. Van


require a district court to offer such instructions twice; it found error where the district court

provided neither a cautionary jury instruction regarding the agents’ dual roles nor a clear

demarcation between their fact and expert testimony. 461 F.3d at 745. Here, the district court

offered an expert-witness instruction and cautioned the jury that Yott testified in two capacities.

This instruction, moreover, addressed the “particular concerns” that the Lopez-Medina court

identified as arising when an officer gives expert testimony: it “guard[ed] against a jury mistakenly

weighing opinion testimony as if the opinion were fact,” “instruct[ed] the jury that they [were] free

to reject the opinions given,” and “address[ed] the additional risk of bias in forming expert

conclusions regarding one’s own investigation.” See id. at 744; see also United States v. Neeley, 308

F. App’x 870, 878–79 (6th Cir. 2009) (finding no plain error despite instruction designating witness

as an expert because the trial court addressed the “particular concerns” of Lopez-Medina by giving

“a general instruction on witness credibility as well as an expert witness instruction”).3


       Finally, Van claims that three other trial events compounded the court’s supposed error in

describing Yott as an “expert.” Although he does not say so explicitly, Van presumably pairs the

challenged jury instruction with these events to argue that the cumulative effect of these supposed

errors amounted to a denial of his due process right to a fair trial. See United States v. Cobleigh, 75



       3
         Van also relies upon United States v. Serafino, 281 F.3d 327 (1st Cir. 2002), and Scheidt v.
Klein, 956 F.2d 963 (10th Cir. 1992), two cases in which the district court instructed the jury
regarding the evaluation of expert witness testimony. In both cases, the defendant failed to establish
plain error. And the distinctions Van emphasizes do not compel us to find an abuse of discretion in
his case.

                                                - 11 -
No. 08-1336
USA v. Van


F.3d 242, 249–50 (6th Cir. 1996). But none of the circumstances Van identifies converts the court’s

reference to Yott as an expert during jury instructions into reversible error.


       Van first claims that the district court bolstered Yott’s credibility and diminished defense

counsel in front of the jury when it cut short counsel’s cross-examination of Yott regarding the way

he titled his investigation report and accused counsel of “wasting the jury’s time.” But the law does

not require the court to remain a silent observer, and this single incident did not improperly bolster

Yott’s credibility. See United States v. Powers, 500 F.3d 500, 511–12 (6th Cir. 2007) (noting that

judge “may interject himself into the trial, speak to counsel, and question witnesses,” and finding

court “within its discretion to move defense counsel along from a repetitive and irrelevant line of

questioning”).


       Nor does the witnesses’ supposed violation of a sequestration order further Van’s argument.

At the conclusion of Yott’s testimony, Yott spoke with defense counsel regarding the distinction

between a snub-nose revolver and a .38-caliber revolver. During this conversation, two other

witnesses, Officers Amos and Estrada, approached, and Yott asked how they would describe the gun.

When defense counsel moved for a mistrial—a motion the district court denied—the government

argued that Yott did not discuss the substance of his testimony with the officers. Defense counsel,

moreover, cross-examined Amos on this issue, exposing any possible collusion to the jury.


       And Van’s last claim—that the officers’ failure to uncover a firearm during a search

undermined Yott’s testimony that Van carried a firearm during the third drug sale—also proves

                                                - 12 -
No. 08-1336
USA v. Van


unavailing. Though Van testified that the officers searched him, one of the officers involved testified

that he and his partner stopped Van solely to ask for identification and that he never searched Van

or his vehicle.


       Because we reject all of the “errors” Van identifies, we conclude that he was not denied his

due process right to a fair trial. See United States v. Swidan, 888 F.2d 1076, 1081 (6th Cir. 1989)

(“There can be no accumulation of errors when no errors are found.”).


                                                  C.


       Finally, Van claims the sentencing court erred procedurally by treating the Guidelines as

mandatory rather than advisory and failing to resolve a dispute about the nature of the Guidelines

in open court. We review the sentence for an abuse of discretion. Gall v. United States, 552 U.S.

38, 51 (2007).4 A court commits procedural error by “failing to calculate (or improperly calculating)

the Guidelines range, treating the Guidelines as mandatory, failing to consider the § 3553(a) factors,

selecting a sentence based on clearly erroneous facts, or failing to adequately explain the chosen

sentence—including an explanation for any deviation from the Guidelines range.” Id.




       4
          Abuse-of-discretion rather than plain-error review applies because the court failed to ask the
parties if they had any unraised objections to the sentence. See United States v. Bostic, 371 F.3d 865,
872 (6th Cir. 2004); see also United States v. Gapinski, 561 F.3d 467, 473–74 (6th Cir. 2009)
(finding that merely asking whether counsel had “[a]nything else for the record” did not satisfy
Bostic requirement (internal quotation marks and citation omitted)).

                                                 - 13 -
No. 08-1336
USA v. Van


       We normally “presume that the district court understood its [sentencing] discretion, absent

clear evidence to the contrary.” United States v. Santillana, 540 F.3d 428, 431 (6th Cir. 2008).

Here, however, the court sentenced Van in early 2008—in the wake of Kimbrough v. United States,

552 U.S. 85 (2007), and Gall v. United States, 552 U.S. 38 (2007), two cases that clarified courts’

authority to grant variances. In similar cases where the fluctuating legal landscape has given us

reason to question whether the district court understood its discretion to vary from the Guidelines,

we have instead reviewed the record for “some indication of error” and required the appellant to

demonstrate more than “mere conjecture” that the court felt improperly constrained. See, e.g.,

United States v. Kosack, 366 F. App’x 642, 647–49 (6th Cir.), cert. denied, 130 S. Ct. 3339 (2010);

United States v. Maye, 582 F.3d 622, 632–33 (6th Cir. 2009); United States v. Guest, 564 F.3d 777,

779–81 (6th Cir. 2009). We apply that standard here. Nevertheless, “by now, the default assumption

is that sentencing courts are aware of their authority to vary from the Guidelines.” United States v.

Borden, 365 F. App’x 617, 621 (6th Cir. 2010) (reviewing the record for a “clear indication of error”

(internal quotation marks and citation omitted)); see also United States v. Castaneda-Comacho, No.

09-6526, 2011 WL 1666898, at *2 (6th Cir. May 3, 2011) (“[W]e presume that the district court

understood its discretion [to grant a departure or variance], absent clear evidence to the contrary.”

(alterations in original) (internal quotation marks and citation omitted)); United States v. Ramirez-

Soria, No. 10-3148, 2011 WL 1462950, at *1 (6th Cir. Apr. 18, 2011) (presuming the district court

understood its authority to vary and, accordingly, requiring the defendant to “adduc[e] clear evidence

that the district judge erroneously believed he lacked discretion” to vary from the Guidelines range).


                                                - 14 -
No. 08-1336
USA v. Van


       Van points to the judge’s adjournment of his initial sentencing hearing to reflect on the

then-recent Kimbrough and Gall decisions, which the defense argued broadened the judge’s

sentencing discretion.     In adjourning the proceedings, the judge noted that he felt “very

uncomfortable” and that he “want[ed] to feel more certain . . . that [he] ha[d] some idea of what [his]

discretion [was] and how broad it [was] and some idea how [he] should use that discretion in this

case.” The judge sidestepped the issue when the sentencing hearing later resumed, Van argues,

failing to resolve the issue of its discretion or to acknowledge the advisory nature of the Guidelines.


       The court committed no procedural error. In adjourning the sentencing, the court merely

acknowledged Van’s argument and committed to granting it serious consideration. See United States

v. Damra, 621 F.3d 474, 508 (6th Cir. 2010) (recognizing court’s obligation to consider defendant’s

nonfrivolous arguments), cert. denied, --- S. Ct. ---- (2011). In the second hearing, moreover, the

district court resolved the parties’ dispute by recognizing its discretion to issue either a downward

departure or a variance:


              My strongest concern at the earlier date in December was whether the
       criminal history used in the calculation of the sentencing guideline range
       overrepresented the seriousness of Mr. Van’s criminal history, or the likelihood that
       the Defendant will commit further crimes. Your sentencing memoranda, Mr. Van,
       argued strongly and persuasively . . . that this is a case for downward departure or
       variance because the criminal history is overstated. I’ve considered that a serious
       and heavy argument in favor of moving the sentence to a lower level.




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No. 08-1336
USA v. Van


The court further explained its reasons for not departing or varying, noting Van’s “continuing pattern

of illegal behavior,” including violating the conditions of his state parole by absconding twice in the

previous five years.


        The district court’s discussion of the § 3553(a) factors indicates that it understood that it must

not rely on the Guidelines as reasonable or mandatory but rather must consider all of the § 3553(a)

factors to determine an appropriate sentence based on the individual circumstances: “I’ve considered

[the § 3553(a)] factors, including the nature and circumstances of the offense and the life history of

[Van]. I’ve also considered whether or not the sentence arrived at by the sentencing guidelines

properly reflects the [§ 3553(a) factors].” Cf. United States v. Simpson, 346 F. App’x 10, 16 (6th

Cir. 2009) (concluding that the totality of the record indicated that the district court misunderstood

its authority despite the district court’s multiple references to the advisory nature of the Guidelines).


        Contrary to Van’s arguments, the record does not indicate that the district court

misunderstood its sentencing authority when addressing his request for a variance based on his

criminal history.


                                                   III.


        For the above reasons, we affirm Van’s conviction and sentence.




                                                 - 16 -
