                NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                           File Name: 13a0690n.06

                                           No. 12-1672                                  FILED
                                                                                     Jul 29, 2013
                          UNITED STATES COURT OF APPEALS                      DEBORAH S. HUNT, Clerk
                               FOR THE SIXTH CIRCUIT


UNITED STATES OF AMERICA,                                )
                                                         )
       Plaintiff-Appellee,                               )        ON APPEAL FROM THE
                                                         )        UNITED STATES DISTRICT
               v.                                        )        COURT FOR THE EASTERN
                                                         )        DISTRICT OF MICHIGAN
DWAINE DANAIR ALEXANDER,                                 )
                                                         )
       Defendant-Appellant.                              )
                                                         )



BEFORE: GILMAN, GRIFFIN, and WHITE, Circuit Judges.

       GRIFFIN, Circuit Judge.

       A jury convicted Dwaine Alexander of conspiracy to possess with intent to distribute, and

to distribute, heroin. The district court imposed an enhanced sentence based upon Alexander’s prior

felony drug conviction. Alexander challenges the sufficiency of the evidence that he joined the

conspiracy, as well as his enhanced sentence. For the reasons that follow, we affirm his conspiracy

conviction, but remand the matter for further proceedings regarding his sentence.

                                                 I.

       In connection with an investigation of a heroin-distribution conspiracy in Detroit, federal

agents searched Alexander’s residence and recovered marijuana and heroin, a digital scale, guns, and

$1,003 in cash. The government later charged him and others with various drug and gun crimes.

Specifically, a superseding indictment charged Alexander with conspiracy to violate the federal
No. 12-1672
United States v. Alexander


controlled-substance laws, 21 U.S.C. §§ 841, 846, 856, 860 (count one); possession with intent to

distribute heroin, id. § 841(a)(1) (count 14); possession with intent to distribute marijuana, id. (count

15); possession of a firearm in furtherance of a drug-trafficking crime, 18 U.S.C. § 924(c) (count 16);

and possession of a firearm as a felon, id. § 922(g)(1) (count 17). Alexander pled not guilty.

        After a five-day trial, the jury returned a verdict of guilty on counts one, fifteen, and

seventeen. It acquitted Alexander on counts fourteen and sixteen. The district court denied

Alexander’s motion for a judgment of acquittal filed at the close of the government’s case and

renewed after the guilty verdict. See Fed. R. Crim. P. 29. Alexander was sentenced and then timely

appealed.

                                                   II.

        First, Alexander challenges the district court’s denial of his motion for acquittal on the drug-

conspiracy charge. We review the district court’s decision de novo. United States v. Wettstain, 618

F.3d 577, 583 (6th Cir. 2010). “[T]he 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).

The essential elements of a drug conspiracy under 21 U.S.C. § 846 are: (1) an agreement to violate

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

conspiracy. United States v. Sliwo, 620 F.3d 630, 633 (6th Cir. 2010).

        The jury convicted Alexander of conspiring to possess with intent to distribute, and to

distribute, 100 or more grams of a mixture or substance containing heroin. The government


                                                  -2-
No. 12-1672
United States v. Alexander


established that, from approximately December 2008 through January 2010, Alexander’s brother,

Trainer, led a heroin-distribution conspiracy in Detroit. Its theory of Alexander’s guilt was that he

joined his brother’s conspiracy by offering his residence at 5792 Lawton Street in Detroit as a safe

place for Trainer to store his heroin.

       Alexander conceded that his home was used to store heroin. His defense was that he was

“merely present” at his home and neither intended to join, nor participated in, his brother’s drug

conspiracy, though he may have known about it. The evidence of Alexander’s involvement was

circumstantial, consisting primarily of items seized from his home during a search. When officers

entered the home, Alexander, a paraplegic, was in his wheelchair in the dining room. On a nearby

table was a digital scale next to some plastic baggies containing marijuana. Alexander admitted that

the marijuana was his and that he used it to manage pain and to compensate those who did him

favors. Officers recovered $1,003 in cash from Alexander’s pockets. In a room that the government

contended was Alexander’s bedroom, officers found a shoebox next to the bed. On top of the

shoebox were two gallon-sized bags, one containing loose marijuana and the other containing

smaller, individually packaged bags of marijuana. Inside the box were two loaded handguns, 56.8

grams of heroin,1 and Alexander’s state identification card used to cash his monthly Social Security

checks. The box also contained a picture of Alexander’s deceased mother and a copy of her

obituary, a birthday card, DVDs, medical papers, and a tube of adhesive that Alexander apparently



       1
        A law enforcement expert testified that 56 grams of heroin is too much for one person to use,
suggesting that it was intended for distribution.

                                                -3-
No. 12-1672
United States v. Alexander


uses in connection with his colostomy bag. Alexander said the box was a repository for special

items.

         Alexander testified that he never placed the guns, heroin, or his state identification card in

the box, and that someone else (one of the conspirators in this case, he believed) had deposited them

there. He said he never would have placed guns and drugs in a box also holding his mother’s

photograph and obituary, out of respect for his mother’s memory. He said he last opened the box

on Christmas, a month before the search, when he was feeling sentimental; at that time, he told the

jury, the heroin and guns were not in there.

         Officers also found a number of additional firearms in the residence, including a loaded

shotgun underneath a couch in the living room and a rifle and handgun in another bedroom.

         Alexander contends that his mere presence at home during the search cannot demonstrate

beyond a reasonable doubt that he intended to join the conspiracy, even if he knew about it. He cites

a number of cases for support, but they all stand for a different proposition: that two individuals’

mere presence together in a house where drugs are sold does not demonstrate a “tacit or mutual

understanding” between them to violate the drug laws. United States v. Peters, 15 F.3d 540, 544

(6th Cir. 1994); United States v. Pearce, 912 F.2d 159, 162 (6th Cir. 1990); see also United States

v. Craig, 522 F.2d 29, 31–32 (6th Cir. 1975) (defendant’s presence in a car with a co-defendant then

in possession of a box of drugs did not prove an agreement between the men to violate the drug

laws). Alexander admits the existence of a conspiracy to distribute heroin, so the cases are

inapposite.


                                                 -4-
No. 12-1672
United States v. Alexander


        The question, rather, is whether the jury could find a legally sufficient connection between

Alexander and the conspiracy. United States v. Avery, 128 F.3d 966, 971 (6th Cir. 1997). The

significant amount of heroin stashed inside a personal box found in what a jury could conclude was

Alexander’s bedroom certainly supports a finding that he intended to join, and participated in, the

conspiracy.2 Alexander’s theory for how the drugs came to rest there, while certainly not beyond all

belief, does not compel a finding of reasonable doubt. The presence of multiple firearms in the

home, especially the loaded shotgun underneath the couch in the living room, further supports the

government’s theory. The jury was free to disbelieve Alexander’s testimony that he did not know

the guns were there and never intended to use them to protect the heroin. See id.

        Also misplaced is Alexander’s reliance on United States v. Gibbs, 182 F.3d 408 (6th Cir.

1999). There, we held that “evidence that the defendants knew each other, grew up together, sold

crack in the same area, or on occasion sold crack together fails to prove membership in [a specific]

conspiracy” to exclude others from selling drugs in a given geographic area. Id. at 423. Otherwise,

we explained, a jury could permissibly infer membership simply “by association of the defendants

with one another.” Id. Here, however, there is much more than a simple association between

Alexander and the co-conspirators.




        2
          It is legally irrelevant that the jury acquitted Alexander of possessing the heroin with intent
to distribute it. See United States v. Powell, 469 U.S. 57, 67 (1984) (review of the sufficiency of the
evidence “should be independent of the jury’s determination that evidence on another count was
insufficient”); see also Dunn v. United States, 284 U.S. 390, 393 (1932) (“Consistency in the verdict
is not necessary. Each count in an indictment is regarded as if it was a separate indictment.”).

                                                  -5-
No. 12-1672
United States v. Alexander


       United States v. White, 932 F.2d 588 (6th Cir. 1991) (per curiam), is likewise inapposite. In

that case, we held that marijuana growing on land next to the defendant’s property was not proof

beyond a reasonable doubt that the defendant manufactured or possessed it with the intent to

distribute it. Id. at 590. The defendant’s knowledge of the plants growing next door did not prove

what was critical: intent to distribute. Id. Arguing along similar lines, Alexander claims that his

simple knowledge of the heroin’s existence in his house does not prove that he intended to join the

conspiracy. Although we agree that his knowledge of the conspiracy is insufficient by itself, other

evidence permits the finding that he intended to join, and participated in, the conspiracy.

       Sliwo also does not support Alexander’s position. That case involved application of the rule

that a defendant’s “participation in a scheme whose ultimate purpose [he] does not know is

insufficient to sustain a conspiracy conviction under 21 U.S.C. § 846.” 620 F.3d at 633. Although

the evidence arguably showed that the defendant had engaged with others in a scheme with a

criminal purpose, the proofs failed to show that the defendant knew the conspiracy “involved

marijuana as opposed to stolen electronic equipment, counterfeit handbags, weapons, or any other

illegal object that could be transported in a van.” Id. at 636; see also id. at 634 (“In this case, the

government can point to no evidence that links Defendant to marijuana, ‘the essential object of the

conspiracy.’”). Here, by contrast, the large quantity of heroin in Alexander’s bedroom, inside a box

containing his personal items, connects Alexander to the heroin, the object of the conspiracy.




                                                 -6-
No. 12-1672
United States v. Alexander


       In the end, Alexander offers us an alternative view of the evidence, which, if believed, would

support an acquittal. However, what he must do at this stage is demonstrate that no rational jury

could find the essential elements of the offense beyond a reasonable doubt. He has not done so.

                                                  III.

       Alexander next claims that his ten-year sentence on the conspiracy conviction is unlawful

because the government failed to provide adequate notice of his eligibility for an enhanced sentence.

See 21 U.S.C. § 851(a)(1).3

                                                  A.

       In September 2011, well before trial, the government filed an information stating that

Alexander, by reason of an identified prior felony drug conviction, was “subject to increased

punishment” if “convicted of the pending charges contained in Count One of the Indictment.” The

next day, the government filed an amended information stating that increased punishment would

apply “if [Alexander] is convicted of the pending charges contained in Counts One, Fourteen and

Fifteen of the Indictment.” (Emphasis added.) Based upon the drug quantity alleged, the minimum

sentence on count one would increase from five years to ten (§ 841(b)(1)(B)(i)), the maximum

sentence on count fourteen would increase from 20 years to 30 (§ 841(b)(1)(C)), and the maximum




       3
        The statute provides: “No person who stands convicted of an offense under this part shall
be sentenced to increased punishment by reason of one or more prior convictions, unless before trial,
or before entry of a plea of guilty, the United States attorney files an information with the court (and
serves a copy of such information on the person or counsel for the person) stating in writing the
previous convictions to be relied upon.”

                                                 -7-
No. 12-1672
United States v. Alexander


sentence on count fifteen would increase from five years to ten (§ 841(b)(1)(D)), all due to the prior

felony drug conviction.

       Just before trial commenced, the government notified Alexander and the district court that

it would be proceeding on a narrower theory of guilt on count one and would seek to prove only that

Alexander conspired with others to possess with intent to distribute, and to distribute, 100 or more

grams of heroin.4 The indictment given to the jury as an exhibit was redacted and reflected the

government’s narrower theory. The jury instructions and verdict form tracked this theory as well.

       The day before sentencing, Alexander filed a written objection to any increase in his

mandatory minimum on count one on account of his prior felony drug conviction, claiming that the

government’s pretrial information included a “condition precedent” to increasing the mandatory

minimum: that Alexander be convicted on counts one, fourteen, and fifteen of the superseding

indictment. This condition was not satisfied, Alexander argued, because he was acquitted on count

fourteen and because “count one” of the redacted indictment was materially different from the “count

one” referenced in the information.

       The government responded the following day with an amended information stating that

Alexander was subject to an increased mandatory minimum “if convicted of the charges contained

in Count One of the (redacted) first superseding indictment.” At the sentencing hearing later that

day, without first hearing from the government, the district court overruled Alexander’s objection,


       4
         In other words, the government would no longer seek to prove that Alexander conspired also
to distribute cocaine base; to distribute, and possess with an intent to distribute, drugs in a school
zone; or to use a premises to distribute cocaine base.

                                                -8-
No. 12-1672
United States v. Alexander


deeming it untimely and frivolous. The court then sentenced Alexander to the statutory minimum

of ten years on count one, up from what would have been a minimum of five years absent the

enhancement for a prior felony drug conviction.5

                                                  B.

       The district court ruled that Alexander’s objection to his enhanced sentence on the conspiracy

conviction was untimely, but cited no authority for its finding. Furthermore, in the district court and

on appeal, the government has not asserted that Alexander’s objection was untimely. Ours is an

adversarial system that leaves to the litigants, not the courts, the duty of raising noncompliance with

claim-processing rules. See Henderson v. Shinseki, 131 S. Ct. 1197, 1202 (2012); Maxwell v. Dodd,

662 F.3d 418, 421 (6th Cir. 2011); see also United States v. Pritchett, 496 F.3d 537, 546 (6th Cir.

2007) (the § 851(a) requirements are not jurisdictional); cf. Eberhart v. United States, 546 U.S. 12,

19 (2005) (per curiam). We therefore decline to affirm on untimeliness grounds in the absence of

any such argument by the government.

       In addition, at this juncture, we disagree with the district court ruling that Alexander’s

challenge to his enhanced sentence is frivolous. Instead, we conclude that Alexander’s objection

needs to be fully aired at an evidentiary hearing.

       A pretrial information is designed in part “to satisfy the requirements of due process and

provide the defendant with ‘reasonable notice and an opportunity to be heard regarding the

possibility of an enhanced sentence for recidivism.’” United States v. King, 127 F.3d 483, 489 (6th


       5
           Alexander’s Guidelines imprisonment range was 33 to 41 months.

                                                 -9-
No. 12-1672
United States v. Alexander


Cir. 1997) (quoting United States v. Belanger, 970 F.2d 416, 418 (7th Cir. 1992)); see also Oyler

v. Boles, 368 U.S. 448, 452 (1962) (“[A] defendant must receive reasonable notice and an

opportunity to be heard relative to the recidivist charge even if due process does not require that

notice be given prior to the trial on the substantive offense.”). Thus, when a defendant challenges

an information, the question often is whether the information “provided the defendant ‘reasonable

notice of [the government’s] intent to rely on a particular conviction and a meaningful opportunity

to be heard’” regarding the possibility of an enhanced sentence for recidivism. King, 127 F.3d at

488–89 (quoting United States v. Gonzalez-Lerma, 14 F.3d 1479, 1485 (10th Cir. 1994)). One

purpose of giving the defendant notice of his prior conviction is to afford him an opportunity to

challenge the use of the conviction to enhance the sentence. The government’s first amended

information accurately set forth Alexander’s previous conviction and thus satisfied this purpose, and

Alexander does not contend that his prior conviction is invalid or not a basis for enhancement.

       Here, the thrust of Alexander’s objection is his argument that “the government should be held

to its offer and promise regarding enhancement.” His position that an information is a binding

contract between the government and the defendant finds no support in the law. However, most

circuits have held that a defendant may hold the government to the textual language of the pretrial

information if failure to do so would result in prejudice. See United States v. Castro-Portillo, 211

F. App’x 715, 725–26 (10th Cir. 2007) (“[W]hen an error of a non-clerical nature is made which

might negatively implicate proper notice of an enhancement or a meaningful opportunity to be heard,




                                               - 10 -
No. 12-1672
United States v. Alexander


this and at least three other circuits consider whether the defendant was prejudiced by the error.”).

We agree.

        It is widely accepted among our sister circuits that § 851(a)(1)’s pretrial requirement, in

addition to giving a defendant a chance to challenge the validity of his prior conviction or its use to

increase his sentence, operates to give the defendant enough information for him to decide

intelligently and knowingly whether to plead guilty or go to trial, knowing in advance the

consequences of a potential guilty verdict. E.g., United States v. Williams, 584 F.3d 714, 715 (7th

Cir. 2009); United States v. Morales, 560 F.3d 112, 115 (2d Cir. 2009) (per curiam); United States

v. Arnold, 467 F.3d 880, 887 (5th Cir. 2006); United States v. Hamilton, 208 F.3d 1165, 1168 (9th

Cir. 2000); United States v. Kennedy, 133 F.3d 53, 59 (D.C. Cir. 1998); United States v. Williams,

59 F.3d 1180, 1185 (11th Cir. 1995); United States v. Johnson, 944 F.2d 396, 407 (8th Cir. 1991);

see also United States v. Gonzalez, 512 F.3d 285, 290 (6th Cir. 2008) (recognizing this purpose,

albeit implicitly); United States v. Campbell, 980 F.2d 245, 252 (4th Cir. 1992) (same). A strong

textual indication of this purpose is the statute’s requirement that an information be filed, if at all,

“before trial, or before entry of a plea of guilty.” 21 U.S.C. § 851(a)(1). Due process does not

require notice of a potential enhancement prior to trial. See Oyler, 368 U.S. at 452. Therefore, if

providing due process were the sole purpose of the requirement, “notice after conviction but prior

to sentencing would suffice.” Morales, 560 F.3d at 116.6


       6
         To the extent that statements in King, 127 F.3d 483, might be read to foreclose recognition
of this purpose, see Morales, 560 F.3d at 115 n.4, they are dicta. King involved the government’s
mistake in its pretrial information as to the date of the prior conviction. King did not claim that the

                                                 - 11 -
No. 12-1672
United States v. Alexander


        Section 851(a)(1) requires that a sentencing-enhancement information (1) be in writing, (2)

be filed with the court and served on the defendant or his attorney, (3) be filed and served before trial

or before a guilty plea, and (4) identify the previous conviction(s) to be relied upon. See United

States v. Severino, 316 F.3d 939, 943 (9th Cir. 2003) (en banc); see also Campbell, 980 F.2d at 252

(noting that the statute does not require an information to identify which charges are subject to

enhancement). Strict compliance with § 851(a)(1)’s modest requirements gives the defendant

enough information to decide intelligently what to do. The list of “previous convictions to be relied

upon,” when coupled with indictment, “will enable competent defense counsel to research applicable

penalties and determine his or her client’s maximum exposure.” Morales, 560 F.3d at 116. It is only

when a prosecutor goes beyond listing the previous convictions, by perhaps identifying the specific

counts to which the enhancement applies or stating the higher mandatory minimum/maximum the

defendant is subject to if convicted, that he risks undermining the adequacy of the notice by creating

reasonable expectations in the defendant’s mind regarding his exposure if convicted and thus

skewing his decision whether to plead guilty and forgo trial. See Castro-Portillo, 211 F. App’x at

725–26 (noting that non-clerical errors in an information have the potential to “negatively implicate

proper notice of an enhancement”).

        For this reason, it is sound practice for federal prosecutors to include in their notices what

the statute requires—“the previous convictions to be relied upon”—and nothing more. Doing so


mistake affected his decision to go to trial. The same is true of Pritchett, 496 F.3d 537, where the
government filed the information after the defendant pled guilty and the defendant did not assert
prejudice from the tardiness.

                                                 - 12 -
No. 12-1672
United States v. Alexander


avoids complications at sentencing and may prevent an appeal. Cf. Williams, 584 F.3d at 718–19

(suggesting that federal prosecutors comply strictly with § 851(a)(1)’s requirements or suffer the

consequences that follow from potentially confusing a defendant).

       Whether additional (or erroneous) information in a pretrial notice renders the notice

ineffectual, and an enhanced sentence thus unavailable, is a fact-intensive inquiry that depends upon

whether the defendant can demonstrate prejudice. That fact explains the diverging results circuit

courts have reached when facing the issue. Compare, e.g., United States v. Baugham, 613 F.3d 291,

295 (D.C. Cir. 2010) (per curiam) (finding no prejudice from listing the co-defendant’s name in the

information rather than the defendant’s); and United States v. Vanness, 85 F.3d 661, 663–64 (D.C.

Cir. 1996) (no prejudice from a statement in the notice that the defendant was subject to an increased

mandatory minimum of ten years when he in fact was subject to a mandatory life sentence); and

Castro-Portillo, 211 F. App’x at 726–27 (no prejudice in enhancing a sentence where the

information failed to give notice that the offense was subject to enhancement, even though the

information also stated that other counts, of which the defendant was acquitted, did carry an

enhanced sentence); with Morales, 560 F.3d at 114 (remanding to the district court for a hearing on

prejudice due to a suggestion in the information, made by reference to a specific statutory subsection

in § 841(b)(1), that the defendant was subject only to a statutory minimum of ten years, not twenty);

and United States v. Arnold, 467 F.3d 880, 888 (5th Cir. 2006) (similar error, same disposition). See

also United States v. Sperow, 494 F.3d 1223, 1226–28 (9th Cir. 2007).




                                                - 13 -
No. 12-1672
United States v. Alexander


        In the present case, Alexander claims that he “made a decision to go to trial based in part on

the government’s conjunctive information.” He asserts in his appellate brief that he rejected an offer

of 36 months to plead guilty “because 5 years (the non-enhanced penalty for Count 1) is not that

much greater than 36 months, but 10 years (the enhanced sentence) is a big difference.” In other

words, had he known that he faced a mandatory minimum of ten years instead of five if convicted

just on count one, he would have pled guilty. He further claims that the government’s decision to

narrow its theory on count one caused him prejudice because he “had reason to believe at the time

the enhancement was filed, prior to trial, that he would not be convicted of the Count 1 alleged in

said enhancement.” The district court did not address these arguments, even though defense counsel

clearly presented them at sentencing. In addition, the lower court denied counsel’s request for a

hearing for the purpose of presenting Alexander’s testimony on the issue.

        We find Alexander’s theory of prejudice “facially plausible,” Morales, 560 F.3d at 117, and

therefore remand for an evidentiary hearing. On remand, the district court shall determine: (1)

whether Alexander reasonably understood the government’s information to require convictions on

counts one (of the superseding, unredacted indictment), fourteen, and fifteen in order to enhance his

sentence on count one; and (2) if so, whether his understanding affected his decision to go to trial

rather than accept the government’s plea offer. In addition, we leave it to the district court to address

in the first instance the government’s arguments for why there was no prejudice.




                                                 - 14 -
No. 12-1672
United States v. Alexander


                                               IV.

       For these reasons, we affirm Alexander’s conviction on count one and remand for an

evidentiary hearing and for other necessary proceedings consistent with this opinion.




                                              - 15 -
