                         NOT RECOMMENDED FOR PUBLICATION
                                File Name: 15a0155n.06

                                           No. 14-5430
                                                                                       FILED
                                                                                 Feb 27, 2015
                                                                             DEBORAH S. HUNT, Clerk
                         UNITED STATES COURTS OF APPEALS
                              FOR THE SIXTH CIRCUIT

UNITED STATES OF AMERICA,                                )
                                                         )
       Plaintiff-Appellee,                               )
                                                         )
v.                                                       )       ON APPEAL FROM THE
                                                         )       UNITED STATES DISTRICT
JOSHUA ROBERTS,                                          )       COURT FOR THE EASTERN
                                                         )       DISTRICT OF TENNESSEE
       Defendant-Appellant.                              )
                                                         )
                                                         )



BEFORE:        SUHRHEINRICH, CLAY, and ROGERS, Circuit Judges

       SUHRHEINRICH, Circuit Judge.

       Defendant-Appellant Joshua Roberts (“Defendant”) appeals his conviction for conspiracy

to possess with intent to distribute 28 grams or more of crack cocaine, in violation of 21 U.S.C.

§ 841(a)(1). Defendant raises various challenges to evidence admitted at trial and statements

made during trial. For the following reasons, we AFFIRM Defendant’s conviction.

                                      I. BACKGROUND

       In June 2011, during a card game in Knoxville, Tennessee, Dwayne Turner told

Defendant and four other friends that they could “make 500 [dollars] off of an eight ball” in

Johnson City, Tennessee. 1 An “eight ball” refers to one-eighth of an ounce, or approximately



1
 The original six members of the drug conspiracy were Defendant, Dwayne Turner, Marquesha
Jones, Jamica Woods, Shanna Clark, and Marquez Holloway.
No. 14-5430, United States v. Roberts


3.5 grams, of cocaine. It usually costs between $250 and $300. Defendant responded, “[W]e

need to see what that’s about.”

       Turner contacted Marquesha Jones, his paramour, after the card game. He asked Jones to

accompany the group to Johnson City and rent hotel rooms in her name. She agreed in exchange

for reimbursement and prescription pills. The group left Knoxville for Johnson City on the night

of June 22, 2011. During the trip, Jones personally transported crack cocaine at Turner’s

request. The conspirators arrived in Johnson City “a little after midnight” on June 23. Jones

paid for three rooms at a local Red Roof Inn, renting the rooms until June 24.

       Testifying for the United States at Defendant’s trial, Jones described the illegal activity

that took place at the Red Roof Inn. Jones witnessed Defendant chop up crack cocaine with a

razor blade and weigh it on a digital scale. She observed Turner sell crack cocaine from his

room and send “customers” to the two other rooms to purchase drugs. Because some customers

wanted to buy from only Turner, Defendant also brought crack cocaine to Turner’s room, where

Turner completed transactions and provided Defendant with the sale proceeds.           The crack

cocaine sold out by the evening of June 23, so Defendant, Jones, and two other conspirators

drove back to Knoxville to resupply. The group returned to Johnson City that night.

       On the morning of June 24, the conspirators shifted operations to a neighboring Motel 6

because Turner believed the Red Roof Inn was “getting too hot.” Jones rented Rooms 109 and

231 at the Motel 6. Jones testified that she stayed at the Motel 6 that morning for only an hour

and a half, before returning to Knoxville in order to go to work.

       Motel 6 staff noticed “suspicious activity” and contacted the Johnson City Police

Department that day, informing the department that Jones had rented two rooms and that several




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No. 14-5430, United States v. Roberts


individuals were staying in those rooms. Thomas Garrison, a Vice and Narcotics Investigator,

went to the Motel 6 with Sergeant Eric Dougherty and Officer Mark Hollis.

       Upon arriving at the motel, Investigator Garrison detected a “strong odor of marijuana”

near Room 231. The officers approached the room in order to conduct a “knock-and-talk.”

Turner opened the door, and Investigator Garrison saw Defendant run into the bedroom adjacent

to the hotel suite’s living room. Turner attempted to slam the door shut as the officers pushed

their way into the room. Defendant, Turner, and co-conspirators Jamica Woods and Shanna

Clark were inside the room at the time of entry. Investigator Garrison immediately followed

Defendant into the bedroom and placed him in handcuffs while the other officers secured the

living room. Sergeant Dougherty conducted a pat-down of Turner and found a small bag of

marijuana.

       Investigator Garrison obtained Jones’s phone number from Clark. He contacted Jones to

ask for permission to search the room, but she represented herself to be Jones’s sister.

Investigator Garrison instead sought and received verbal consent to search the hotel room from

Turner, and the subsequent search revealed four bags containing 67.51 grams of crack cocaine,

two sets of digital scales, a razor blade, and a box of plastic sandwich bags used to package the

drugs. After searching Room 231, the officers went to the hotel manager and looked through the

hotel records, which indicated Jones had also rented Room 109. The officers obtained

permission from hotel management to search that room, which was empty, and they found two

bags containing a total of 23.46 grams of crack cocaine.

       Defendant was indicted alongside some of his co-conspirators for conspiring to possess

with intent to distribute 28 grams or more of crack cocaine, in violation of 21 U.S.C. § 841(a)(1),

based on the discovery of crack cocaine in the two motel rooms. Four of his co-conspirators



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No. 14-5430, United States v. Roberts


pleaded guilty for their roles in the conspiracy; charges against a fifth co-defendant, Marquez

Holloway, were dismissed. Defendant pleaded not guilty and proceeded to a jury trial.

       The jury entered a guilty verdict on November 20, 2013. The district court filed its

judgment in the case on March 28, 2014. This appeal followed.

                                        II. DISCUSSION

                            A. Constructive Amendment/Variance

       Investigator Thomas Garrison testified for the United States at Defendant’s trial. On

direct examination, the United States inquired whether the Red Roof Inn was in close proximity

to the Johnson City Motel 6. Defense counsel objected, arguing that the superseding indictment

charged a conspiracy to possess with intent to distribute crack cocaine beginning on or about

June 24. Any allegation that drugs were dealt out of the Red Roof Inn on another date would

therefore be outside the scope of the indictment. The district court overruled the objection,

concluding that the evidence was “relatively close in time and appears to be evidence related to

acts that were part and parcel of and in furtherance of the conspiracy charged in the indictment.”

       On appeal, Defendant contends that the United States constructively amended the

superseding indictment by introducing Marquesha Jones’s testimony concerning drug

distribution at the Johnson City Red Roof Inn on June 23, 2011. Defendant emphasizes that the

date specified in the indictment was June 24, 2011, which encompassed only activities at the

Johnson City Motel 6. Def.’s Br. 26.

       As an initial matter, we clarify that Defendant’s argument implicates a variance, not a

constructive amendment. “[A] defendant can prove a constructive amendment only by pointing

to a combination of evidence and jury instructions that effectively alters the terms of the

indictment . . . .” United States v. Hynes, 467 F.3d 951, 962 (6th Cir. 2006). Because Defendant



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No. 14-5430, United States v. Roberts


points only to “[e]vidence . . . presented at trial concerning controlled substances activities at a

different Johnson City motel a day earlier,” Def.’s Br. 25, he does not allege a constructive

amendment, but rather a variance. See Hynes, 467 F.3d at 962 (“[D]efendants can establish a

variance by referring exclusively to the evidence presented at trial.”).

        A variance “occurs when the charging terms [of the indictment] are unchanged, but the

evidence at trial proves facts materially different from those alleged in the indictment.” United

States v. Kuehne, 547 F.3d 667, 683 (6th Cir. 2008). Unlike a constructive amendment, a

variance is not per se prejudicial. Id. “To obtain reversal of a conviction because of a variance

between the indictment and the evidence produced at trial, a defendant must satisfy a two-prong

test: (1) the variance must be demonstrated and (2) the variance must affect some substantial

right of the defendant.” United States v. Budd, 496 F.3d 517, 521-22 (6th Cir. 2007). We

evaluate variances from an indictment de novo. Id.

       Evidence of drug activity at the Red Roof Inn did not prove facts materially different

from those alleged in the indictment. The superseding indictment alleged that Defendant and his

compatriots conspired to possess with intent to distribute crack cocaine “on or about June 24,

2011.” “When ‘on or about’ language is used in an indictment, proof of the exact date of an

offense is not required as long as a date reasonably near that named in the indictment is

established.” United States v. Ford, 872 F.2d 1231, 1236 (6th Cir. 1989).

       In the instant case, Jones’s trial testimony described one continuously flowing enterprise

that occurred over the course of two nights.           Jones recounted how Defendant and his co-

conspirators transported crack cocaine from Knoxville to Johnson City, arriving at the local Red

Roof Inn early on June 23. On that date, Jones observed Defendant package and distribute drugs

at that motel. She explained that once the group sold out of crack cocaine, Defendant and three



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No. 14-5430, United States v. Roberts


co-conspirators returned to Knoxville in order to resupply, and then drove back to Johnson

City. Jones described how the co-conspirators feared increased attention at the Red Roof Inn, so

they shifted their operations over to a neighboring Motel 6 on the morning of June 24.

        Here, the only “fact” purportedly creating a separate conspiracy was the use of a different

motel, but the reason that the conspirators changed motels in the first place was to keep the

original conspiracy operating. Because the events of June 23 were part of the same conspiracy

as those of June 24, Jones’s testimony concerning drug activity at the Red Roof Inn did not

create a fatal variance. See United States v. Manning, 142 F.3d 336, 338-40 (6th Cir. 1998)

(finding that evidence of an August 4, 1995 meeting between the defendant and two other

individuals to discuss a cocaine deal did not create a fatal variance, even though the indictment

alleged that the defendant participated in a drug conspiracy “on or about” September 6 to 12,

1995, because the August 1995 meeting “related to” the drug negotiations and sales that occurred

in September 1995).

                              B. Evidentiary Rulings During Trial

        Defendant next argues that the district court “made several evidentiary rulings that resulted

in the introduction of inadmissible evidence, or evidence the probative value of which was

outweighed by one or more of the dangers listed in FRE 403.” Def.’s Br. 27.

        “An appellate court reviews all evidentiary rulings—including constitutional challenges to

evidentiary rulings—under the abuse-of-discretion standard.” United States v. Schreane, 331 F.3d

548, 564 (6th Cir. 2003) (citing Gen. Elec. Co. v. Joiner, 522 U.S. 136, 141 (1997)). An abuse of

discretion will be found upon a “definite and firm conviction that the court below committed a clear

error of judgment in the conclusion it reached upon a weighing of the relevant factors.” Id. (quoting

Super Sulky, Inc. v. U.S. Trotting Ass'n, 174 F.3d 733, 740 (6th Cir. 1999) (internal quotation marks

and citation omitted)).

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No. 14-5430, United States v. Roberts

        However, when a defendant fails to object to an error at trial, appellate review is only for

plain error. See Fed. R. Crim. P. 30(d), 52(b); United States v. Lawrence, 735 F.3d 385, 401 (6th Cir.

2013). “To establish plain error, a defendant must show that: (1) an error occurred in the district

court; (2) the error was obvious or clear; (3) the error affected defendant's substantial rights; and

(4) this adverse impact seriously affected the fairness, integrity, or public reputation of the judicial

proceedings.” United States v. Gardiner, 463 F.3d 445, 459 (6th Cir. 2006) (citations omitted).

                             1. Admission of Police Encounter Audio

        Because two of the officers involved in the June 24 encounter at the Motel 6 wore video-

recording devices on their uniforms, Defendant moved to “suppress” all audio-visual records of

law enforcement activities in his case before trial.2          Defendant alleged the audio-visual

recordings of him being restrained after the officers entered Room 231 created a danger of undue

prejudice that outweighed their limited probative value. While the United States did not intend

to offer the entire recording into evidence, it argued that portions of the video were particularly

relevant to show “which defendants were present in [Room 231], the relative location of the

defendants in the room, [and] the location of contraband.” The magistrate judge ordered the

United States to excerpt the recordings to show only the portions that would be presented at

trial. The magistrate judge then reviewed the excerpted recordings and denied Defendant’s

motion, determining that the recordings were not unfairly prejudicial because they “show[ed]

nothing the officers themselves could not testify about.” However, the magistrate judge reserved

the final determination of admissibility to the trial judge because the recordings could become

unnecessarily cumulative of the officers’ testimony.




2
 As the magistrate judge correctly noted, this motion is more appropriately construed as a
motion in limine.
                                                  -7-
No. 14-5430, United States v. Roberts


       Immediately before trial, defense counsel stated that he viewed the video excerpts again

and had no objection to the video being shown, but did object to admitting the audio recorded

before Defendant and Jamica Woods, one of the co-conspirators present in Room 231, were

given a Miranda warning. That audio captured Woods’s statement to Investigator Garrison that

the group had come from Knoxville to shop in Johnson City, as well as the officer’s response

that people in Johnson City typically went to Knoxville to shop. The district court denied the

motion because Defendant waived the issue by failing to raise it in a timely pretrial motion.

Alternatively, the court held that the audio would be admissible as a co-conspirator’s statement

under Federal Rule of Evidence 801(d)(2)(E). The video excerpts preapproved by the magistrate

judge were admitted into evidence without objection during trial.

       On appeal, Defendant claims that the district court improperly admitted the pre-Miranda

audio capturing the verbal exchange between Investigator Garrison and Woods after the police

entered Room 231. Def.’s Br. 27.

       A motion to suppress evidence must be raised before trial. Fed. R. Crim. P.

12(b)(3)(C). “Failure to do so ‘by the deadline the court sets under Rule 12(c)’ constitutes

waiver of the defense by the party.” United States v. Coss, 677 F.3d 278, 283 (6th Cir. 2012)

(quoting Fed. R. Crim. P. 12(e)). Yet, “[f]or good cause, the court may grant relief from the

waiver.” Fed. R. Crim. P. 12(e).

       While Defendant does not argue “good cause,” he maintains that he raised the

suppression issue in a pretrial motion. Def.’s Br. 28. Defendant did file a motion “to suppress

all audio-visual records of law enforcement activities in this case on June 24, 2011, at or in a

room at the Motel 6 in Johnson City, Tennessee.” But his brief in support of that motion made

no mention of the need to suppress the conversation between Investigator Garrison and Woods,



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No. 14-5430, United States v. Roberts


focusing solely on the unfair prejudice that would arise if recordings of Defendant being

restrained and Mirandized were admitted at trial. Defendant therefore failed to make his current

argument in the pretrial motion. “Even when a party has brought a pretrial suppression motion, .

. . any new suppression arguments raised for the first time on appeal that were not contained in

the original suppression motion will be deemed waived under Rule 12(e).” United States v.

Lopez-Medina, 461 F.3d 724, 738 (6th Cir. 2006). The district court thus correctly denied

Defendant’s motion.

                           2. Admission of Motel Room Key Cards

       After entering Room 231 and handcuffing Defendant, Investigator Garrison asked

Defendant for his name. Defendant said, “Joshua Roberts, my ID is in my back pocket.” At a

pretrial motion hearing, Investigator Garrison testified that Defendant eventually “stood up and

turned his right hip toward Officer Garrison, clearly indicating that Garrison should reach into

his hip pocket to retrieve the identification.” Defendant testified at trial that he “told”

Investigator Garrison to “get it out” of his back pocket. Investigator Garrison did so, pulling out

a wallet and two plastic motel key cards that were sandwiched up against the wallet. Defendant

had one key card for Room 109 and another for Room 231. Investigator Garrison asked what the

keys were for, and Defendant responded, “[F]or this room.” Investigator Garrison subsequently

Mirandized Defendant. Investigator Garrison testified that he eventually gave the room keys

back to the motel management, but Defendant testified that Investigator Garrison “just showed

them to the other police officer, and he gave them back to [Defendant].”

       Before trial, Defendant moved to suppress evidence of motel room key cards seized from

him on June 24, and to suppress any evidence derived from questioning him on that date, arguing

that the questioning of Defendant and search of his person exceeded the scope of Terry v. Ohio,



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No. 14-5430, United States v. Roberts


392 U.S. 1 (1968). The magistrate judge held an evidentiary hearing and recommended that the

motion be denied, concluding that no search had occurred because the motel key cards were

inadvertently discovered when Investigator Garrison followed Defendant’s invitation to retrieve

his identification. Defendant objected to that recommendation, arguing that Investigator

Garrison lacked any basis to recognize the key cards as incriminating, so he should have left the

key cards where they fell or restored them to Defendant’s pocket. The district court reviewed

this issue de novo and denied Defendant’s motion, adopting the magistrate judge’s

recommendation.

       Defendant contends that the court erred in denying his motion to suppress the motel room

key cards found in his pocket. Def.’s Br. 29. Defendant makes three arguments on appeal. First,

Defendant argues that the search of Defendant’s back pocket exceeded the scope of Terry v. Ohio.

Def.’s Br. 30. Second, because Defendant was handcuffed behind his back and had officers freely

ask him questions, Defendant argues that he was “subjected to coercion that rendered his self-

identification and what followed, including his invitation to a law enforcement officer to go fishing

in his pocket, subject to suppression.” Def.’s Br. 30. Third, Defendant argues that the seizure of

those key cards was impermissible because they were not “apparently incriminating.” Def.’s Br. 29.

       “The grant or denial of a motion to suppress is a mixed question of fact and law. On appeal,

we review the district court's findings of fact for clear error and its conclusions of law de

novo.” United States v. Fisher, 745 F.3d 200, 202 (6th Cir. 2014). A factual finding is clearly

erroneous “when, although there may be evidence to support it, the reviewing court, utilizing the

entire evidence, is left with the definite and firm conviction that a mistake has been

committed.” United States v. Ellis, 497 F.3d 606, 611 (6th Cir. 2007) (internal quotation and citation

omitted). “When the district court has denied the motion to suppress, we review all evidence in a




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No. 14-5430, United States v. Roberts

light most favorable to the Government.” United States v. Coffee, 434 F.3d 887, 892 (6th Cir. 2006)

(internal quotation and citation omitted).

        Terry v. Ohio “permits a police officer briefly to detain a person or property for investigative

purposes if the officer has a reasonable suspicion, supported by articulable facts, that criminal

activity has occurred or is about to occur.” United States v. Davis, 430 F.3d 345, 354 (6th Cir. 2005);

see also Terry, 392 U.S. at 20-22. Terry similarly permits a “reasonable search for weapons for the

protection of the police officer, where he has reason to believe that he is dealing with an armed and

dangerous individual, regardless of whether he has probable cause to arrest the individual for a

crime.” 392 U.S. at 27.

        Defendant does not dispute the legality of his detention, but rather asserts that the search

leading to the discovery of the key cards exceeded the scope of Terry because it was not reasonably

designed to discover harmful contraband. Def.’s Br. 30. But Defendant incorrectly presumes that

the search of his back pocket, which led to the discovery of the key cards alongside Defendant’s

wallet, was part of a Terry search. Instead, as the district court found, Defendant consented to

Investigator Garrison’s reaching into his pocket in order to remove Defendant’s identification. “An

officer with consent needs neither a warrant nor probable cause to conduct a constitutional search.”

United States v. Jenkins, 92 F.3d 430, 436 (6th Cir. 1996) (citing Schneckloth v. Bustamonte,

412 U.S. 218, 219 (1973)). “The consent must be freely and voluntarily given, and this must be

proven by ‘clear and positive’ proof.” United States v. Kelley, 913 F.2d 261, 265 (6th Cir. 1990)

(quoting United States v. McCaleb, 552 F.2d 717, 721 (6th Cir.1977)).

        Defendant clearly consented to the search of his pocket. In a preliminary motion hearing,

Investigator Garrison testified that after he handcuffed Defendant, he asked Defendant for his

name. Defendant gave his name and told Investigator Garrison that his identification was in his back

pocket. Defendant then stood up and turned his right hip toward Investigator Garrison, indicating


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No. 14-5430, United States v. Roberts


that Investigator Garrison should reach into Defendant’s hip pocket and retrieve the

identification. At trial, Defendant also testified that he “told” Investigator Garrison to get the

identification out of his pocket. Accordingly, the search of Defendant’s pocket to retrieve his

identification was consensual. See United States v. Canipe, 569 F.3d 597, 604 (6th Cir. 2009)

(holding that search of vehicle was consensual when defendant “responded positively and

unambiguously”); see also United States v. Thurman, 525 F. App’x 401, 404 (6th Cir. 2013)

(concluding that search of glove box was consensual when defendant responded to officer’s inquiry

to search by reaching into his pocket and handing the officer his keys).

        Defendant relies on United States v. Beauchamp, 659 F.3d 560 (6th Cir. 2011), to argue that

his detention created a coercive environment and vitiated his consent. In that case, we determined

that police coercion negated a defendant’s consent because the defendant consented immediately

after an officer placed his hands on the defendant’s body in order to conduct a frisk, and the

defendant was repeatedly prevented from exercising his right to walk away from the police. Id. at

572. Beauchamp is inapplicable. Unlike the officer in that case, Investigator Garrison did not place

his hands on Defendant’s body immediately before Defendant provided consent.3 Instead,

Defendant volunteered his consent before Investigator Garrison even had to ask to search

Defendant’s pocket. And while it is true that Defendant was handcuffed at the time he gave

consent, the fact a defendant is handcuffed at the time consent is provided does not automatically

negate that consent. See United States v. Burns, 298 F.3d 523, 541 (6th Cir. 2002) (holding that

consent was freely given by handcuffed defendant because of the “calm and cordial nature” of the

police interaction).




3
 Before Investigator Garrison requested Defendant’s ID, he had conducted a pat-down search of
Defendant, removing cigarette lighters and keys from Defendant’s pockets. Time passed,
however, between the pat-down and Defendant’s consent.
                                                 -12-
No. 14-5430, United States v. Roberts


       After Investigator Garrison reached into Defendant’s back pocket and removed a wallet, two

key cards came out with it. Defendant argues that the “seizure” of those key cards was illegal

because they were not apparently incriminating. Def.’s Br. 30. But Defendant’s argument fails

because a seizure never occurred within the meaning of the Fourth Amendment. A “seizure” of

property occurs when “there is some meaningful interference with an individual's possessory

interests in that property.” Bonds v. Cox, 20 F.3d 697, 701 (6th Cir. 1994) (quoting Soldal v. Cook

Cnty., 506 U.S. 56, 61 (1992)). Investigator Garrison did not meaningfully interfere with any

possessory interest Defendant had in those key cards. “Given the fact that seizures of property

can vary in intrusiveness, some brief detentions of personal effects may be . . . minimally

intrusive of Fourth Amendment interests . . . .” United States v. Place, 462 U.S. 696, 706 (1983).

An interference is not “meaningful” when it is short in duration and non-invasive. See, e.g.,

United States v. Robinson, 390 F.3d 853, 869-70 (6th Cir. 2004) (determining that diversion of

package for brief investigation “did not constitute a . . . seizure”); United States v. Lovell,

849 F.2d 910, 916 (5th Cir. 1988) (holding that the “momentary delay” caused by the removal of

defendant’s bags from a conveyor belt “was insufficient to constitute a meaningful interference

with [defendant’s] possessory interest in his bags”).

       The record indicates that any interference with Defendant’s possessory interest in the key

cards was temporary and non-invasive. Investigator Garrison testified that he returned the key cards

to motel management, and Defendant testified that Investigator Garrison returned the key cards to

him after briefly showing them to another officer. Under either scenario, the interference was not

meaningful. Compare United States v. Gant, 112 F.3d 239, 242 (6th Cir. 1997) (finding no

meaningful interference with defendant’s possessory interest in a bag when officers moved the bag a

short distance for a short time), with Farm Labor Org. Comm. v. Ohio State Highway Patrol, 308




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No. 14-5430, United States v. Roberts

F.3d 523, 546 (6th Cir. 2002) (concluding that four-day detention of green cards interfered with

plaintiffs’ possessory interests in the documents).

                          3. Cross-Examination About Crack Cocaine

        Defendant testified in his defense at trial. He admitted the existence of a prior felony

conviction, but he did not state the nature of that conviction. When Defendant described his trips

between Johnson City and Knoxville, defense counsel asked Defendant whether he saw “any

cocaine base.” This exchange followed:

        Defendant: No, sir, not at all
        Counsel: Do you know what cocaine base is?
        Defendant: Yes, sir.

On cross-examination, the United States inquired into Defendant’s prior felony conviction.

Defense counsel objected, and the district court excused the jury. The court sustained the

objection, determining that the nature of Defendant’s prior state conviction for possession with

intent to sell cocaine posed a risk that the jury would draw an improper propensity inference.

        The court also addressed Defendant’s “somewhat problematic testimony” regarding his

knowledge of crack cocaine. It held that the United States “would be allowed to ask some

limited questions about the extent of [Defendant’s] knowledge” because Defendant “opened

th[e] door.” When cross-examination resumed, the United States asked Defendant if he knew

what crack cocaine looked like because he had previously handled and sold the drug. Defendant

answered affirmatively.

        On appeal, Defendant argues that he “did not open any door” to further cross-

examination about crack cocaine because his counsel “implicitly distinguished between base and

powder cocaine.” Def.’s Br. 31. Defendant additionally claims that the basis for his knowledge

about crack cocaine “never became relevant to anything but jurors’ prejudices,” converting prior

conviction evidence into propensity evidence. Def.’s Br. 31.

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No. 14-5430, United States v. Roberts


       “Cross-examination should not go beyond the subject matter of the direct examination

and matters affecting the witness's credibility.” Fed. R. Evid. 611(b). But the “subject matter of

the direct examination” is “liberally construed to include all inferences and implications arising

from such testimony.” United States v. Moore, 917 F.2d 215, 222 (6th Cir. 1990).

       The district court did not err in ruling that limited questions about “the extent of

[Defendant’s] knowledge” about crack cocaine were within the permissible scope of cross-

examination under Rule 611. The “elicited testimony [on cross-examination] . . . was reasonably

related to the inferences drawn from . . . direct [examination] testimony.” Id. at 222. On direct

examination, Defendant stated that he did not see crack cocaine at the Motel 6 and that he knew

what crack cocaine was, which necessarily implied that he had seen crack cocaine at some point

in his lifetime. The United States’ cross-examination about Defendant’s familiarity with crack

cocaine was a logical extension of Defendant’s direct examination testimony. See id. (finding

that cross-examination testimony implicating two co-defendants in a post office robbery did not

exceed the scope of direct examination testimony that admitted general knowledge of a March

1987 post office robbery); see also United States v. Coleman, 453 F. App’x 640, 643 (6th Cir.

2011) (holding that “natural inferences” drawn from direct examination must be addressed to

avoid juror confusion); United States v. Musick, 291 F. App’x 706, 728 (6th Cir. 2008)

(determining that direct examination about a defendant’s juvenile detention opened the door to

cross-examination about the search and evidence that precipitated the detention).

       Defendant also argues that the inquiry into whether he had previously sold crack was

improper “propensity evidence” that was not probative of any issue “relevant to anything but

jurors’ prejudices.” While Defendant is correct that the inquiry into his past sales of cocaine was

not permissible under Rule 404(b), the error in this case was harmless.



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No. 14-5430, United States v. Roberts


       The admissibility of Rule 404(b) evidence is governed by a “three-step analysis.” United

States v. Mack, 729 F.3d 594, 601 (6th Cir. 2013) (citing United States v. Clay, 667 F.3d 689,

693 (6th Cir. 2012)). The first inquiry is whether there is sufficient evidence that the other act

actually occurred. Id. Here, neither party disputes Defendant’s prior sales of crack. The second

inquiry, which is a pure question of law, is “whether the evidence is probative of a material issue

other than character.” Id. The third inquiry, reviewed for abuse of discretion, is “whether any

unfair prejudice generated by the other act evidence is substantially outweighed by its probative

value.” Id.

       We have insisted that the issue sought to be proven by a criminal defendant’s prior bad

acts must be legally material before the evidence of other acts may be admitted under 404(b).

United States v. Johnson, 27 F.3d 1186, 1191-92, 1194 (6th Cir. 1994). The government argues

that the prior sales of crack cocaine were relevant to prove Defendant’s knowledge of its

appearance and that establishing this knowledge could rebut a potential inference the jury might

draw that he failed to recognize the substance as crack. This is not sufficient to create a legally

material issue. Defendant stated outright that he knew what cocaine base looked like. Nothing

in his testimony suggested that he failed to recognize the substance; rather, he testified that “only

when the police found it” in their search of the hotel room did he see any crack during the

group’s trip to Johnson City. Compare Johnson, 27 F.3d at 1194 (“Knowledge is a ‘material

issue’ when the defendant claims he was unaware that he was committing a criminal act.”).

       Even setting aside the question of whether the evidence was probative of a material issue,

it should have been excluded under the third inquiry, which coincides with Rule 403. The unfair

prejudice of forcing Defendant to admit that he had previously committed the same crime he was

now charged with unquestionably outweighed any residual probative value of clarifying for the



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No. 14-5430, United States v. Roberts


jury that Defendant truly knew, as he had already testified, what cocaine base looked like.

“‘Probity in this context is not an absolute; its value must be determined with regard to the extent

to which the [material issue] is established by other evidence, stipulation or inference.’” United

States v. Jackson, 339 F.3d 349, 356 (5th Cir. 2003) (quoting United States v. Beechum, 582 F.2d

898, 914-15 (5th Cir. 1978)). Defendant’s own testimony had already established his knowledge

of the drug’s appearance, and the issue was not otherwise significant in the case.              The

incremental probative value was negligible at best.        On the other hand, the prosecution’s

questioning invited the jury to conclude that Defendant had sold drugs before and therefore

likely sold them here, precisely the inference forbidden by 404(b)(1). Johnson, 27 F.3d at 1193

(“When jurors hear that a defendant has on earlier occasions committed essentially the same

crime as that for which he is one trial, the information unquestionably has a powerful and

prejudicial impact.”).

       While the questioning should not have been allowed, we are convinced that the error was

harmless in this case. The other evidence against Defendant, including the damning testimony

by his co-conspirator and the evidence related to the discovery of crack in the hotel room, was so

substantial as to be overwhelming.

                           4. Cross-Examination About Marijuana

       At trial, the United States asked Defendant what he and the rest of the group were doing

before the police arrived at their motel room. When Defendant answered, “Just watching TV,”

the United States inquired whether Defendant and the others were smoking marijuana during that

period. Defendant replied, “No, sir.” Defense counsel asked to approach the bench, but the

court overruled that request. The United States then asked Defendant if he denied that the




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No. 14-5430, United States v. Roberts


officers “walked into a haze of marijuana smoke” when they entered Room 231. Defendant did

not deny that assertion, but clarified that only Turner was smoking marijuana.

       Defendant argues that this cross-examination about smoking marijuana in the Motel 6

was unfairly prejudicial because Defendant was charged with participating in a crack cocaine

conspiracy, not a marijuana-based offense. Def.’s Br. 32. Though the parties disagree as to

whether defense counsel properly objected, we need not decide whether the standard of review is

plain error or abuse of discretion. The claim lacks merit even under the abuse-of-discretion

standard.

       Cross-examination may implicate “matters affecting the witness’s credibility.” Fed. R.

Evid. 611(b). “We have repeatedly insisted that when defendants testify, they must testify

truthfully or suffer the consequences.” United States v. Markarian, 967 F.2d 1098, 1103 (6th

Cir. 1992) (quoting United States v. Havens, 446 U.S. 620, 626-27 (1980)).

       The district court did not abuse its discretion in permitting the cross-examination on

marijuana use. By falsely stating that he and his co-conspirators were merely watching

television before the police entered Room 231 and then explicitly denying that marijuana was

being smoked in that room, Defendant opened the door for the United States to impeach his

credibility. See Markarian, 967 F.2d at 1103 (holding that prosecution could ask witness about

defendant’s experience with cocaine after defendant denied selling any controlled substances on

direct and cross-examination). Nor did eliciting this testimony unfairly prejudice Defendant.

Evidence of marijuana use in Room 231 was relevant to explain why the police entered the room

in the first place.   See id. (concluding that trial court properly exercised discretion when

determining the probative value of impeachment evidence outweighed any prejudicial effect).




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                                    C. Motion for a Mistrial

       At trial, the United States asked Defendant, without objection, if he was a member of the

Gangster Disciples, which Defendant denied. The United States then inquired whether

Defendant had “a tattoo on [his] neck of a six pointed star.” Defense counsel objected, arguing

that evidence of gang affiliation was “totally irrelevant in [Defendant’s] case.” Defense counsel

feared that a cautionary instruction would not be enough and moved for a mistrial. The United

States asserted that gang membership was relevant to an individual’s credibility. The court

recognized that a jury might infer that Defendant likely committed the criminal act in question

because people who belong to gangs commit criminal acts, but felt that a cautionary instruction

would not do “anything other than draw further attention to that matter.” However, the court

determined that the question about whether Defendant was a Gangster Disciple and Defendant’s

subsequent denial were not prejudicial because the exchange was limited in scope and

duration. The court denied Defendant’s request for a mistrial but still offered to provide a

cautionary instruction if Defendant requested one. The court acceded to Defendant’s request and

told the jury that the gang affiliation question and answer were irrelevant and not to be

considered for any purpose.

       Defendant contends that this inquiry constituted prosecutorial misconduct. Def.’s Br.

33. Defendant claims that “[i]n the context of a trial in which [Defendant] was the only

individual on trial, all of the co-defendants had entered into negotiated pleas, and the only

alleged co-conspirator who took the stand did so as a witness for the Government, . . . the only

reason for this questioning was to inflame the jury.” Def.’s Br. 34.

       We review the denial of a motion for mistrial for abuse of discretion. United States v.

Fields, 763 F.3d 443, 462 (6th Cir. 2014). We consider five factors when determining whether a



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mistrial was warranted following an improper reference during trial: “(1) whether the remark

was unsolicited, (2) whether the government's line of questioning was reasonable, (3) whether

the limiting instruction was immediate, clear, and forceful, (4) whether any bad faith was

evidenced by the government, and (5) whether the remark was only a small part of the evidence

against the defendant.” Zuern v. Tate, 336 F.3d 478, 485 (6th Cir. 2003).

       While the prosecutor’s line of questioning was certainly improper, a mistrial was not

warranted. The short exchange between Defendant and the United States was negligible, likely

lasting less than a minute, with Defendant saying merely two words. The district court correctly

reasoned, “[T]he only thing in front of the jury at this point is that there’s a question about

whether [Defendant is] a gang member, and his answer is no. I don’t see how that answer can be

prejudicial.” Such a limited exchange could not taint Defendant’s entire trial. Furthermore,

while the United States’ line of questioning may have been unreasonable, it did not necessarily

evidence any bad faith. As the prosecutor indicated to the district court, the National Drug

Intelligence Center had released information on various gangs, including the Gangster Disciples,

and Defendant was wearing a turtleneck during trial in an attempt to cover up a Gangster

Disciples neck tattoo. The prosecutor certainly made a tenuous connection, but it was not so

divorced from reality as to indicate that the prosecutor was “piling on” out of bad faith. A

mistrial is not warranted if “there is no showing that the government acted in bad faith or

otherwise ‘deliberately injected’ . . . stray remarks.” United States v. Hernandez, 873 F.2d 925,

928 (6th Cir. 1989). Finally, the district court minimized any prejudicial effect arising from the

question and response with an immediate, clear, and forceful limiting instruction:

       [Defendant] was asked about his possible membership in any gang; and he
       answered that question, no, that he was not a member of the gang. Both the
       question and his answer are irrelevant in this case. You should not consider either
       the question or the answer for any purpose in this case.

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No. 14-5430, United States v. Roberts



This limiting instruction adequately removed the risk of prejudice to Defendant. See United

States v. Forrest, 17 F.3d 916, 921 (6th Cir. 1994) (holding that the “clear admonition by the

judge and the ample other evidence of guilt determine that a mistrial is not

mandated”). Accordingly, the district court likely did not abuse its discretion in denying

Defendant’s motion for a mistrial.

                          D. Misconduct During Closing Argument

       During closing arguments, defense counsel argued that “the evidence presented to [the

jury] by the law enforcement officers and the evidence presented by [Defendant] are

consistent.” Defense counsel also urged the jury to “ask [themselves] whether [Defendant] was

straightforward with [them] from that stand, including about some facts that he’s probably not

proud of.” Defense counsel recognized that there was a “conflict” between the testimony of co-

conspirator Jones and Defendant, but asserted that Jones was not credible.

       The prosecutor responded in rebuttal, inviting the jury to question Defendant’s

credibility. He noted that Defendant did not admit to selling crack cocaine until he was cross-

examined. He also asked the jury to consider whether “there was any liquor found in those

[motel] rooms” in light of Defendant’s testimony about drinking during his stay in Johnson

City,4 implying that because law enforcement did not find any alcohol, Defendant lied about

drinking. The prosecutor rehabilitated Jones’s credibility as well, stating that she came forward

and admitted her guilt. Furthermore, he highlighted the fact that Jones was not a convicted felon,

unlike Defendant, and that Jones confessed to having a drug addiction.




4
  On direct examination, Defendant explained that he and Jamica Woods, his girlfriend, slept in
the same room, but Woods “left maybe two or three times” to get liquor from the room of co-
conspirators Shanna Clark and Marquez Holloway.
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No. 14-5430, United States v. Roberts


       Defendant states that his conviction should be reversed because the United States made

“improper” closing arguments. Def.’s Br. 34. Specifically, Defendant contends the United

States offered a “misleading and unfairly prejudicial” argument when it invited the jury to judge

Defendant incredible because there was no physical evidence of liquor in the Motel 6, even

though Defendant’s testimony concerning alcohol referred to drinking at the Red Roof

Inn. Def.’s Br. 34. Defendant further contends that the United States untruthfully stated that

Jones was not a convicted felon, and it improperly and prejudicially “vouch[ed] for the

credibility of . . . Jones as a cooperating co-defendant.” Def.’s Br. 34-35.

       Because Defendant did not object to the statements made during closing argument, we

review only for plain error. United States v. Henry, 545 F.3d 367, 376 (6th Cir. 2008). The

court employs a two-part test when evaluating claims of prosecutorial misconduct based on

improper statements during closing argument. United States v. Galloway, 316 F.3d 624, 632

(6th Cir. 2003). The court first determines “whether the remarks were indeed improper.” Id. If

they were improper, the court then “determine[s] if the remarks were flagrant and warrant

reversal.” Id. The court addresses four factors in determining flagrancy: “1) whether the

statements tended to mislead the jury and prejudice the defendant; 2) whether the statements

were isolated or pervasive; 3) whether the statements were deliberately placed before the jury;

and 4) whether the evidence against the accused is otherwise strong.” Id. No single factor is

dispositive, and even if the court does not find the remarks flagrant, it “will nonetheless reverse a

conviction upon a determination that: 1) the proof of the defendant's guilt is not overwhelming;

2) the defense objected to the statements; and 3) the trial judge did not cure the impropriety

through an admonishment to the jury.” Id. At the same time, we “afford wide latitude to a

prosecutor during closing argument, analyzing disputed comments in the context of the trial as a



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No. 14-5430, United States v. Roberts


whole and recognizing that inappropriate comments alone do not justify reversal where the

proceedings were ‘otherwise fair.’” Henry, 545 F.3d at 377 (quoting United States v. Young, 470

U.S. 1, 11 (1985)).

       The district court did not plainly err by allowing the prosecutor to make statements about

the presence of liquor at the Motel 6 and Jones’s status as a convicted felon during closing

arguments. First, the statements were not improper. The prosecutor asked the jury to consider

whether the police found liquor in the searched Motel 6 rooms in order to impeach Defendant’s

story about drinking alcohol the night before. While it is true that Defendant testified only about

drinking liquor at the Red Roof Inn on the first day the co-conspirators spent in Johnson City,

Defendant never claimed that liquor was consumed only at the Red Roof Inn. Indeed, on cross-

examination, while discussing events that occurred at the Motel 6, the prosecutor asked

Defendant whether “during your stay somebody had some liquor,” and Defendant confirmed that

co-conspirators Clark and Holloway had liquor. Based on Defendant’s testimony, it was

reasonable to infer that liquor was present in the Motel 6 room. See United States v. Roach,

502 F.3d 425, 434 (6th Cir. 2007) (noting that government’s comments during closing arguments

“drew a reasonable inference based on the evidence” given at trial). The prosecutor also stated

that Jones, unlike Defendant, was not a convicted felon. Of course, Jones pleaded guilty prior to

the trial, so she was a convicted felon at the time of this closing argument. But she did not have

a felony conviction prior to this case. That is why the prosecutor told the jury that Jones “did

plead guilty to a lesser amount.”

       Second, even if the prosecutor’s statements were improper, they were not flagrant. In the

context of the trial as a whole, two comments made by the prosecutor in passing were unlikely to

have a great effect on the jury. See United States v. Mahar, 801 F.2d 1477, 1502-03 (6th Cir.



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No. 14-5430, United States v. Roberts


1986) (holding that prosecutor’s three improper comments made during closing arguments did

not constitute misconduct so pronounced and persistent that it permeated the entire atmosphere

of the trial).

        Nor did the prosecutor improperly and prejudicially “vouch for the credibility of

Marquesha Jones as a cooperating co-defendant.” Def.’s Br. 34-35. Improper vouching occurs

when a prosecutor either (1) bluntly states a personal belief in a witness's credibility, “thereby

placing the prestige of the office of the United States Attorney behind that witness,” or (2)

“implies that the witness's testimony is corroborated by evidence known to the government but

not known to the jury.” Henry, 545 F.3d at 378-79 (quoting United States v. Francis, 170 F.3d

546, 550-51 (6th Cir. 1999)). The prosecutor in this case did neither. He merely told the jury to

consider various factors in assessing Jones’s credibility based on her testimony: the fact that

Jones came forward and admitted her guilt, the fact that she was not a convicted felon prior to

this prosecution, the fact that she admitted unsavory things like her prescription pill addiction,

and the fact that her testimony was consistent with the testimony of other witnesses. At no point

did the prosecutor state a personal belief in Jones’s credibility or raise evidence unavailable to

the defense. Accordingly, the district court did not err by allowing those remarks.

                                      III. CONCLUSION

        For the foregoing reasons, we AFFIRM the judgment of the district court.




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