       RECOMMENDED FOR FULL-TEXT PUBLICATION
            Pursuant to Sixth Circuit Rule 206             2    United States v. DeJohn, et al.      Nos. 02-3158/3175
    ELECTRONIC CITATION: 2004 FED App. 0137P (6th Cir.)
                File Name: 04a0137p.06                     STATES ATTORNEY, Cleveland, Ohio, for Appellee.
                                                           ON BRIEF: Michael J. Benza, Cleveland, Ohio, Thomas J.
                                                           Broschak, ULMER & BERNE, Columbus, Ohio, for
UNITED STATES COURT OF APPEALS                             Appellants. Ronald B. Bakeman, ASSISTANT UNITED
                                                           STATES ATTORNEY, Cleveland, Ohio, for Appellee.
              FOR THE SIXTH CIRCUIT
                _________________                            MOORE, J., delivered the opinion of the court, in which
                                                           MARTIN, J., joined. RYAN, J. (p. 24), delivered a separate
 UNITED STATES OF AMERICA , X                              concurring opinion.
             Plaintiff-Appellee, -
                                    -                                          _________________
                                    -  Nos. 02-3158/3175
            v.                      -                                              OPINION
                                     >                                         _________________
                                    ,
 ANTHONY DE JOHN (02-3158); -
                                                             KAREN NELSON MOORE, Circuit Judge. Codefendants
 CHRISTOPHER HARB                   -                      Christopher Harb and Anthony DeJohn appeal from their
 (02-3175),                         -                      convictions and sentences for conspiracy to distribute
        Defendants-Appellants. -                           cocaine, conspiracy to distribute marijuana, and unlawful use
                                    -                      of a communication facility (Harb); and conspiracy to
                                   N                       distribute marijuana, possession of marijuana with intent to
       Appeal from the United States District Court        distribute, unlawful use of a communication facility, and
      for the Northern District of Ohio at Cleveland.      being a felon in possession of a firearm (DeJohn). They each
  No. 00-00516—Kathleen McDonald O’Malley, District        raise numerous assignments of error, of which the two most
                          Judge.                           novel and meritorious are a shared claim of Speedy Trial Act
                                                           error and DeJohn’s argument that a specific unanimity
               Argued: January 28, 2004                    instruction was required for his felon-in-possession charge,
                                                           which involved two different firearms. Nonetheless, because
           Decided and Filed: May 13, 2004                 we ascertain no violation of the Speedy Trial Act and because
                                                           we conclude that the specific firearm possessed by a felon is
 Before: MARTIN, RYAN, and MOORE, Circuit Judges.          not an element of the crime defined by 18 U.S.C. § 922(g)(1)
                                                           requiring jury unanimity, we AFFIRM the convictions and
                  _________________                        sentences of Harb and DeJohn.

                       COUNSEL                                                 I. BACKGROUND

ARGUED: Michael J. Benza, Cleveland, Ohio, Thomas J.          In early 2000, the FBI began an investigation into a cocaine
Broschak, ULMER & BERNE, Columbus, Ohio, for               ring in Cleveland’s eastern suburbs. After attempts to use
Appellants. Ronald B. Bakeman, ASSISTANT UNITED            undercover agents to pursue suppliers further up the

                            1
Nos. 02-3158/3175           United States v. DeJohn, et al.           3    4       United States v. DeJohn, et al.         Nos. 02-3158/3175

distribution chain were unsuccessful, a wiretap investigation                 DeJohn and Harb proceeded to trial on the 34-count
was pursued which culminated in a tap being placed on                      indictment on May 7, 2001. At trial, the government’s chief
Alfred Laudato’s (“Laudato”) cellular telephone. Laudato                   witness was Laudato, who had agreed to testify against Harb
was supplying numerous customers in the Cleveland area                     and DeJohn as part of a plea bargain with the government.
with cocaine and also with marijuana. Harb sold marijuana                  The government introduced as well numerous tapes and
to and purchased cocaine from Laudato, while DeJohn                        transcripts obtained through the wiretap on Laudato’s phone.
purchased marijuana from Laudato. In June 2000, the FBI                    Most of the conversations involving drug purchases were in
terminated the investigation, making numerous arrests and                  code or otherwise opaque; Laudato “decoded” the
searching both Harb’s and DeJohn’s residences. At DeJohn’s                 conversations for the jury. Both Harb and DeJohn testified in
residence, drug distribution paraphernalia (plastic bags and a             their own defenses. Harb claimed to have purchased cocaine
three-beam scale stored together) and eight separate bags of               only for personal use in small amounts from Laudato and
marijuana were found together in a duffel bag. Additionally,               asserted that his only involvement with marijuana distribution
two firearms were found, a small handgun along with                        was storing marijuana for Laudato. DeJohn claimed to have
ammunition in a drawer underneath the couch in the family                  purchased marijuana from Laudato only for personal use,
room, and a Remington 870 shotgun in a bedroom closet                      despite phone calls entered into evidence, which DeJohn
upstairs. At Harb’s residence, numerous firearms were                      admitted referred to marijuana purchases, in which DeJohn
discovered, totaling three pistols and four rifles, as well as a           describes “the guys” who want marijuana from him. Joint
bag of marijuana. Harb and DeJohn were both indicted with                  Appendix (“J.A.”) at 628-30. DeJohn also presented
twenty-six other individuals on June 13, 2000, and then                    testimony from relatives and friends in which they claimed
arrested as part of the raids on June 14, 2000.1 Two                       ownership of the two guns found in DeJohn’s residence.
superseding indictments were filed, one on July 11, 2000,                  Each defendant was acquitted of certain charges by the jury,
with additional codefendants, and a second superseding                     as well as convicted of conspiracy to distribute cocaine,
indictment on October 3, 2000, which named far fewer                       conspiracy to distribute marijuana, and unlawful use of a
conspirators as so many had already pleaded guilty. Harb and               communication facility (Harb); and conspiracy to distribute
DeJohn, however, ultimately refused to plead guilty, and were              marijuana, possession of marijuana with intent to distribute,
eventually the only defendants left. The government’s                      unlawful use of a communication facility, and being a felon
motion to dismiss the indictment against them without                      in possession of a firearm (DeJohn).
prejudice was granted on November 13, 2000, and on
December 28, 2000, they were reindicted; this later                           At sentencing, Harb’s total adjusted offense level was
indictment was the first containing the firearms charges                   twenty-eight.2 The district court found his base offense level
against DeJohn.                                                            to be twenty-six based on drug quantities, and applied a two-
                                                                           level upward adjustment for obstruction of justice based on


                                                                               2
    1
                                                                                 Although the Presentence Investigation Reports (“PSRs”) for Harb
      Harb was also implicated in and charged with crimes relating to      and DeJohn have not been submitted as part of the Joint Appendix, the
extortion, for which he wa s acquitted, which had no effect on his         district court indicated that calculations were initially made using an
sentencing, and w hich, for the sake of simplicity, we have omitted from   unspecified year’s guidelines, presumably 2000, and rechecked with the
our reco unting of the facts.                                              2001 guidelines, which revealed no change.
Nos. 02-3158/3175        United States v. DeJohn, et al.      5    6    United States v. DeJohn, et al.       Nos. 02-3158/3175

Harb’s perjury at trial. The district court declined to make a        The Speedy Trial Act (“Act”) provides, “Any . . .
downward adjustment for a mitigating role, noting that it had      indictment charging an individual with the commission of an
previously limited the government’s case to the narrow             offense shall be filed within thirty days from the date on
conspiracies ultimately charged to the defendants. The             which such individual was arrested.” 18 U.S.C. § 3161(b).
district court denied an acceptance of responsibility              The Act contains two main time limits: the limit in § 3161(b)
adjustment and a downward departure based on family                running from arrest or summons to indictment, and the
responsibilities. Harb was sentenced to seventy-eight              seventy-day limit in § 3161(c) running from indictment to
months’ imprisonment.                                              trial. The purpose of the former, the thirty-day limit at issue
                                                                   in this case, is to insure that individuals will not languish in
  DeJohn’s base offense level for the gun charges was              jail or on bond without being formally indicted on particular
assessed at twenty-four under U.S.S.G. § 2K2.1(a)(2), as he        charges. In this case, DeJohn and Harb were originally
had two prior felony convictions for assault, a crime of           indicted before their arrest, and remained under indictment
violence. Because the firearms charge and the drug charges         until November 13, 2000, when the indictment then in force
were unrelated to one another, he received a one-level             against them was dismissed. No criminal complaint had been
increase in his offense level under § 3D1.4 for the drug           filed, and the terms and conditions for release on bail were
charges. He also received a two-level enhancement for              terminated, leaving DeJohn and Harb without any restriction
obstruction of justice based on his perjury at trial, making his   on their liberty after November 13, 2000, and before their
total adjusted offense level twenty-seven. His criminal            reindictment.      DeJohn and Harb were reindicted on
history was assessed at Category VI under § 4B1.1 for his two      December 28, 2000, forty-five countable days after the
prior assault convictions, which increased both his offense        dismissal of the prior indictment. Their argument that the Act
level by ten and his Criminal History Category by three. The       was violated because their reindictment happened too long
district court granted a downward departure because of this        after the dismissal of the previous indictment is based largely
dual effect of his two prior assault convictions. The departure    on United States v. Berry, 90 F.3d 148 (6th Cir.), cert. denied,
was three Criminal History Categories, down to his “original”      519 U.S. 999 (1996), in which this court, in dealing with an
Criminal History Category of III, i.e., without the Career         analogous situation where only one day passed between
Offender increase under § 4B1.1. This resulted in a                dismissal and reindictment, wrote, “When the original
sentencing range of 87 to 108 months; DeJohn was sentenced         indictment was dismissed, the thirty-day period again
to 91 months’ imprisonment. This timely appeal followed.           continued to run; it did not begin anew.” Id. at 151. Adding
                                                                   together the time that ran on the arrest-to-indictment clock
                       II. ANALYSIS                                initially (zero days) and that which ran after the dismissal of
                                                                   the original indictment (forty-five days), DeJohn and Harb
A. Speedy Trial Act                                                argue that the thirty-day period expired, requiring the reversal
                                                                   of their convictions.
  “We review the District Court's legal interpretation of the
[Speedy Trial Act] de novo and the factual findings                  “The purpose of the thirty-day rule is to ensure that the
supporting its ruling for clear error.” United States v. O'Dell,   defendant is not held under an arrest warrant for an excessive
154 F.3d 358, 360 (6th Cir. 1998) (citing United States v.         period without receiving formal notice of the charge against
Carroll, 26 F.3d 1380, 1390 (6th Cir. 1994)), cert. denied,        which he must prepare to defend himself.” Berry, 90 F.3d at
526 U.S. 1029 (1999).                                              151. The evil against which the Act is meant to protect is the
Nos. 02-3158/3175             United States v. DeJohn, et al.             7    8    United States v. DeJohn, et al.       Nos. 02-3158/3175

extension of the period when the accused is under legal                           In support of their argument that the thirty-day arrest-to-
restraint but does not know the charges she will eventually                    indictment clock continues to run after the dismissal of the
face; where no legal restraint exists, the thirty-day limit is                 indictment in the absence of any other legal restraint on their
inapplicable. This is borne out by the text of the Act itself, as              freedom, Harb and DeJohn rely on a single sentence from
the remedy for a violation of the thirty-day arrest-to-                        Berry, which stated, “When the original indictment was
indictment rule is the dismissal of charges contained in the                   dismissed, the thirty-day period again continued to run; it did
criminal complaint against the accused. Title 18 U.S.C.                        not begin anew.” 90 F.3d at 151. While we think this
§ 3162(a)(1) specifies, “If, in the case of any individual                     statement is likely dicta unnecessary to Berry’s holding, as
against whom a complaint is filed . . . no indictment or                       the thirty-day period had not yet run in Berry, in any event the
information is filed within the time limit required by section                 meaning of Berry is clearly contrary to the defendants’
3161(b) . . . such charge against that individual contained in                 position. Even if this sentence were part of the holding of
such complaint shall be dismissed or otherwise dropped.” In                    Berry, rather than dicta incidental to that holding, it would
this case, no criminal complaint was ever issued against Harb                  still be limited by the earlier statement in Berry that the
and DeJohn, as they were indicted before they were arrested;                   “purpose of the thirty-day rule is to ensure that the defendant
they therefore spent no time under the shadow of a complaint                   is not held under an arrest warrant for an excessive period.”
or an arrest warrant without a warning of the charges they                     Id. (emphasis added). Berry can thus be reconciled easily
would have to prepare to face. Even if we were to find a                       with our holding here: where no arrest warrant or criminal
technical violation of the Act in this case, Harb and DeJohn                   complaint is outstanding, the thirty-day clock does not run.
would have no remedy, as the only remedy for that violation
would be dismissal of charges contained in a nonexistent                       B. Jury Unanimity Under Richardson v. United States
complaint. It seems clear that the thirty-day clock is reset by
the dismissal of an outstanding indictment by the government                     DeJohn failed to object to the jury instructions regarding
where no further restraint on the accused’s freedom remains                    his felon-in-possession charge, so we review for plain error
after that dismissal.3                                                         the district court’s failure to give the instruction now sought
                                                                               by DeJohn. United States v. Sims, 975 F.2d 1225, 1240 (6th
                                                                               Cir. 1992), cert. denied, 507 U.S. 999 (1993). While DeJohn
                                                                               makes an ineffective-assistance-of-counsel claim with regard
    3                                                                          to this asserted error, we decline to address his claim of
       Although we believe the cases cited by Jud ge Ryan in his concurring
opinion, holding that only arrest on formal federal charges triggers the
                                                                               ineffective assistance of counsel on direct appeal, as
thirty-day rule, lend further supp ort to our conclusion, we note that none    explained below, and we will review for plain error this claim
of them involves an arrest pursuant to an indictment. Because DeJo hn          of error regarding the instructions.
and Harb were, in fact, arrested pursuant to federal charges — that is,
those contained in the original indictment — we do not believe those             DeJohn argues that because the indictment charged the
cases necessarily control. See Un ited States v. B lackm on, 874 F.2d 378,     possession of two different firearms as a single violation of 18
381 (6th Cir.) (“defendant is not ‘arrested’ for purposes of the Speedy
Trial Act until formal federal charges are pending”), cert. denied, 493
                                                                               U.S.C. § 922(g)(1), prohibiting the possession of firearms by
U.S. 859 (1989). While we think it is unlikely that any situation will arise   a felon, he was entitled to a jury instruction stating that the
where an arre st pursuant to an indictment will implicate the thirty-day       jury must unanimously decide which firearm he possessed.
rule, especially in light of our holding today, we are nonetheless reluctant   DeJohn points to Richardson v. United States, 526 U.S. 813
to hold that an arrest pursuant to an indictment is not a triggering arrest,   (1999), in which the Supreme Court held that under the
where it is unnecessary to do so to dispose of Harb and DeJohn’s claim.
Nos. 02-3158/3175        United States v. DeJohn, et al.      9    10    United States v. DeJohn, et al.       Nos. 02-3158/3175

continuing criminal enterprise statute, 21 U.S.C. § 848(a),        firearms charged in a single count were discovered as part of
each underlying violation was an individual element of the         the same transaction. See Sims, 975 F.2d at 1240-41. A
crime, and a unanimity instruction was therefore required.         specific unanimity instruction is required only where “a
Title 21 U.S.C. § 848 forbids any person from engaging in a        genuine risk [exists] that the jury is confused or that a
“continuing criminal enterprise,” which in turn is defined as      conviction may occur as the result of different jurors
a violation of the drug statutes that was part of a “continuing    concluding that a defendant committed different acts.” Id. at
series of violations” as further defined in 21 U.S.C. § 848(c).    1241 (citations and internal quotation marks omitted).
The question for the Court was whether each underlying             DeJohn asks us to announce as a rule of law that the specific
violation in the series was an element such that unanimity was     firearm possessed by a felon is a statutory element of 18
required as to which violations the defendant had committed.       U.S.C. § 922(g)(1) such that the jury must be given a
Richardson, 526 U.S. at 817-18. In holding that each               unanimity instruction each time multiple firearms comprise
violation in the series was an element of the continuing           a single § 922(g)(1) charge, regardless of the facts of the case.
criminal enterprise crime, the Court held that the statute in
question defined the crime such that each violation was an            Only one circuit court has dealt at length with the question
element of the crime, rather than a means by which the crime       of whether Richardson requires unanimity as to which firearm
is committed, which would not require unanimity. The Court         was possessed. See United States v. Verrecchia, 196 F.3d
illustrated the difference between element and means by            294, 298-301 (1st Cir. 1999); see also United States v.
discussing a hypothetical robbery by force or threat of force:     Drayton, No. 02-4234, 2002 WL 31518834, *2 (4th Cir. Nov.
while “force” was an element of the crime, the means by            7, 2002) (rejecting similar claim without analysis but citing
which force was brought to bear did not require unanimity, so      Verrecchia). Verrecchia involved a defendant who argued
half the jury could believe a knife was used and the other half    that the instructions to the jury deciding his case should have
a gun without constitutional difficulty. Id. at 817. In making     included a specific unanimity charge as to which firearms he
its determination, the Court proceeded to look at the language     possessed. The Verrecchia court decided that the particular
of the statute, tradition, and the breadth of the statute (which   firearm possessed by a defendant is a means and not an
“aggravates the dangers of unfairness” of treating each            element of the crime of being a felon in possession. The
violation as a means, id. at 819), and to the desirability of      court’s analysis closely tracked Richardson, looking first to
avoiding having to decide the constitutional questions             the language of the statute, emphasizing the phrase “any
surrounding a definition of a crime that allows significant jury   firearm” as the element of the crime, and possession of a
disagreement as to means. The Court also rejected the              firearm as a means to that element. The Verrecchia court
government’s argument that demonstrating each violation            then looked to other provisions of the statute and discussed
would prove too difficult.                                         the emphasis of these provisions on the categories of persons
                                                                   prohibited from possessing firearms rather than the type of
   Prior to Richardson, the only cases in the Sixth Circuit on     firearm possessed. The court then considered legislative
the subject of jury unanimity with respect to multiple firearms    history, which demonstrated that Congress’s emphasis was
in a single charge dealt with the question of when the facts of    again “on the person, not the firearm.” Id. at 300. The court
a case required a unanimity instruction, rather than whether       determined that tradition, a factor used in Richardson, was
the statutory definition of the crime itself required a            unhelpful in the case at hand. The court concluded that
unanimity instruction in every case. The fact-specific rule is     potential unfairness was not an issue, as unlike in Richardson,
that no unanimity instruction is required where multiple           a disagreement about which gun was possessed would not
Nos. 02-3158/3175        United States v. DeJohn, et al.     11    12    United States v. DeJohn, et al.      Nos. 02-3158/3175

mean that jurors believed the defendant to be guilty of            emphasize, however, that this does not in any way alter the
different crimes of wildly varying seriousness. Finally, the       holding of Sims; when the particular factual circumstances
Verrecchia court cited Sims and other pre-Richardson cases         create “a genuine risk that the jury is confused or that a
that dealt with whether jury unanimity was required as to          conviction may occur as the result of different jurors
which firearm was used or carried under 18 U.S.C. § 924(c).        concluding that a defendant committed different acts,” a jury
The court found that “no error, let alone plain error,”            unanimity instruction is still required. Sims, 975 F.2d at 1241
occurred. Id. at 301.                                              (citations and internal quotation marks omitted). We hold
                                                                   today only that, as a matter of statutory interpretation, such an
   DeJohn attempts to distinguish his case from Verrecchia on      instruction need not be given in every case under § 922(g).
its facts, but that argument misunderstands the holdings both
of Richardson and of Verrecchia. Whether the particular            C. Harb’s Remaining Claims of Error
firearm is an element of § 922(g) is a question of statutory
interpretation, not one to be decided with reference to the          Harb claims that the district court erred in admitting into
facts of each case. DeJohn also adverted at oral argument to       evidence tape recordings without the requisite foundation;
the Supreme Court case Castillo v. United States, 530 U.S.         that the evidence was insufficient as to Count Twenty-Six,
120 (2000), which involved a challenge to the determination        conspiracy to distribute cocaine, Counts Five, Six, Thirteen,
by a judge, rather than a jury, that the defendant had carried     Seventeen through Twenty-Two, Twenty-Four, and Twenty-
a machinegun, a determination that carried the penalty of an       Five, use of a communication facility to facilitate the
additional twenty-five years in prison under 18 U.S.C.             marijuana conspiracy, and Counts Twenty-Nine and Thirty,
§ 924(c)(1). In determining that the type of the firearm was       use of a communication facility to facilitate the cocaine
an element of the crime rather than a sentencing factor, the       conspiracy; that the asserted variance between a single
Court noted that the basic crime under the statute was the use     cocaine conspiracy charged in the indictment and the multiple
or carrying of a firearm itself, rather than an underlying crime   cocaine conspiracies shown at trial prejudiced Harb; and that
of violence, making the traditional notion of the firearm itself   the district court erred in its drug quantity determination at
as “means” unhelpful to the Court’s analysis. Id. at 126.          sentencing. Each of these contentions is without merit and
Castillo is distinguishable, however, because it dealt with a      will be dealt with briefly.
statutory provision that imposed a much steeper penalty,
which both indicates an intention on the part of Congress to         1. Foundation for Tape Recording Evidence
make the triggering fact an element of the crime and raises
greater constitutional concerns if a judge rather than a jury is     Harb argues that the tape recordings the government made
allowed to make that determination.                                from the wiretap on Laudato’s cell phone had an inadequate
                                                                   foundation when they were introduced into evidence. Harb
   We are convinced by Verrecchia’s careful analysis of the        objected at trial, so we will review the district court’s
statute, and we hold accordingly that the particular firearm       admission of the tape recordings for abuse of discretion. See
possessed is not an element of the crime under § 922(g), but       United States v. Robinson, 707 F.2d 872, 876 (6th Cir. 1983).
instead the means used to satisfy the element of “any              Harb essentially argues that the testimony offered when all of
firearm.” Therefore, the district court did not commit plain       the audio tapes were entered into evidence, that of FBI Agent
error in failing to give an instruction to the jury requiring      Steven Vogt (“Vogt”), was inadequate to establish the
unanimity as to which of the firearms DeJohn possessed. We         accuracy and trustworthiness of the evidence. He makes no
Nos. 02-3158/3175         United States v. DeJohn, et al.       13    14   United States v. DeJohn, et al.       Nos. 02-3158/3175

argument that the tapes were in fact inaccurate. Vogt testified       (6th Cir. 1997). Harb challenges the sufficiency of the
as to the court authorization to get the wiretaps, the taping by      evidence on all of the counts of using a communication
two simultaneous recording devices, and the monitoring of             facility to facilitate acts constituting a felony, namely the
conversations and the log made and further testified that each        cocaine and marijuana conspiracies, and on the count of
tape played at trial was made by isolating a conversation on          conspiring to distribute and to attempt to distribute cocaine.
the original tapes and dubbing it onto a blank tape. While we         In making this argument, Harb basically disregards the
have not in our prior cases indicated precisely what                  extensive testimony of Laudato and relies instead upon his
foundation is necessary to admit audiotapes where the                 own testimony to bolster his argument — which makes this
challenge is to their admission generally, other circuits have        a credibility determination rather than a sufficiency problem.
alternately held that the district court must be satisfied that the   See, e.g., Appellant Harb’s Br. at 25 (“[I]n fact no proof was
recording is “‘accurate, authentic, and generally                     offered that any cocaine was ever bought, sold, delivered or,
trustworthy,’” United States v. Panaro, 266 F.3d 939, 951             for that matter, even existed, other than the testimony of Mr.
(9th Cir. 2001) (citations omitted), that “simply required [is]       Harb and Laudato.” (second emphasis added)).
proof that the tape recording accurately reflects the
conversation in question,” United States v. Doyon, 194 F.3d              Harb makes a slightly more sophisticated argument with
207, 212 (1st Cir. 1999), or that “a proper foundation . . . may      respect to each of the conversations, contending that they did
be established in two ways: a chain of custody . . . or               not “facilitate” a conspiracy to distribute. While this does not
alternatively, other testimony could be used to establish the         merit discussion with regard to the conversations directly
accuracy and trustworthiness of the evidence.” United States          regarding the sale of marijuana that Harb was making to
v. Rivera, 153 F.3d 809, 812 (7th Cir. 1998). In addition to          Laudato in amounts clearly intended for redistribution, it
Vogt’s testimony, the district court also required that a             bears more parsing out with regard to the cocaine conspiracy.
foundation be laid for each individual recording before it was        Harb’s argument is essentially that he was a customer, not a
played for the jury. Given the cumulative effect of Vogt’s            coconspirator, and he points to cases rejecting the idea that a
testimony and the other witnesses’ authentication of each             mere purchaser can be convicted as a coconspirator. He also
audiotape, it was not an abuse of discretion for the district         argues with respect to the telephone conversations that even
court to admit the tapes. Cf. United States v. Carbone, 798           if the evidence supports an underlying conspiracy, the calls
F.2d 21, 25 (1st Cir. 1986) (allowing authentication through          themselves did not facilitate the conspiracy. But Harb was
testimony of agents as to how recorders worked and                    clearly conspiring with Laudato in that he knew who
testimony of participants in each conversation).                      Laudato’s supplier was (referring at one point to “your friend
                                                                      out in Mentor,” J.A. at 234), gave messages to Laudato to
  2. Sufficiency of the Evidence                                      give to Laudato’s supplier in hopes of facilitating
                                                                      transactions, and was himself reselling cocaine and informing
  This court reviews a claim of insufficient evidence to              Laudato of that fact by phone in an attempt to use his
determine whether, “viewing the evidence in the light most            customers’ willingness to pay in order to get the cocaine from
favorable to the prosecution, any rational trier of fact could        Laudato’s supplier sooner. Laudato had had difficultly in
have found the essential elements of the crime beyond a               getting cocaine from his supplier for quite some time at this
reasonable doubt.” Jackson v. Virginia, 443 U.S. 307, 319             point, a fact of which Harb was aware. Additionally, the
(1979). All credibility determinations are drawn in favor of          amount of cocaine Harb was receiving from Laudato can also
the prosecution. United States v. Avery, 128 F.3d 966, 971            help in this case to show his knowledge of a wider-ranging
Nos. 02-3158/3175        United States v. DeJohn, et al.      15    16    United States v. DeJohn, et al.       Nos. 02-3158/3175

conspiracy necessary for him to receive the drugs. See United       (“Because the success of participants on each level of
States v. Warner, 690 F.2d 545, 551 n.10 (6th Cir. 1982);           distribution is dependent upon the existence of other levels of
United States v. Grunsfeld, 558 F.2d 1231, 1235 (6th Cir.),         distribution, each member of the conspiracy must realize that
cert. denied, 434 U.S. 872 (1977). Laudato testified that he        he is participating in a joint enterprise, even if he does not
sold cocaine to Harb four to six times, at quantities ranging       know the identities of many of the participants.”).
from one to nine ounces; one of the phone conversations
recorded between Laudato and Harb was decoded by Laudato              4. Quantity Determination
as referring to eighteen ounces of cocaine. Harb’s challenge
to the sufficiency of the evidence fails.                              Harb challenges the district court’s determination at
                                                                    sentencing of the quantity of forty-five pounds of marijuana.
  3. Single vs. Multiple Conspiracies                               “We review de novo the sentencing court's interpretation of
                                                                    the Sentencing Guidelines and statutes, and we review for
   Harb complains that the indictment charges a single              clear error its factual findings. If the district court's factual
conspiracy between him, Laudato, and “persons known or              findings are not clearly erroneous, this court reviews de novo
unknown,” but the proof at trial included proof of a much           the determination that the conduct in question constituted
larger conspiracy including all of Laudato’s suppliers and          relevant conduct.” United States v. Corrado, 304 F.3d 593,
their suppliers. Harb asserts that he was unable to question        607 (6th Cir. 2002) (citations and internal quotation marks
the existence of the larger conspiracy, and that guilt by           omitted). Laudato testified that he had received between sixty
association with Laudato operated to his substantial prejudice.     and eighty pounds of marijuana from Harb and that a phone
Harb does not make clear what he felt the district judge            conversation between him and Harb regarding “forty-seven
should have done differently — whether he is challenging the        jobs” was in fact a reference to forty-seven pounds of
inclusion of this evidence at trial or the jury instructions —      marijuana. J.A. at 239, 363-65. This assignment of error is
but the government treats this assignment of error as a request     without merit.
for a multiple-conspiracy jury instruction, a common claim.
While Harb suggests this is “a question of fact and is to [be]      D. DeJohn’s Remaining Claims of Error
considered on appeal in the light most favorable to the
government,” and that “reversal is required where substantial         DeJohn additionally claims that his indictment on the felon-
rights are involved,” Appellant Harb’s Br. at 30, the               in-possession charge was the result of prosecutorial
government suggests that this is a jury-instruction claim, to be    vindictiveness, that there was insufficient evidence to support
reviewed for plain error in the absence of an objection by          his felon-in-possession conviction, that the district court was
Harb. Inasmuch as Harb simply contends he was not part of           in error in failing to instruct the jury on innocent possession
a larger conspiracy, he essentially repeats his sufficiency-of-     of weapons, that the district court’s determination of drug
the-evidence claim, which fails for the reasons noted above;        quantity at sentencing was an Apprendi error, that the drug
he does not point to specific testimony which was prejudicial       quantity determination was in any case in error, that the
to his case, and that part of his claim should fail. Treating his   district court improperly believed itself unable to grant a
claim as one for a jury instruction, as the government does, is     downward departure for role in the offense, that the district
equally unavailing. This was a simple chain-distribution            court erred in not granting a downward adjustment for
conspiracy, in which Harb’s not knowing who his ultimate            acceptance of responsibility, that it erred in granting an
suppliers were is irrelevant. See Warner, 690 F.2d at 549           enhancement for obstruction of justice, that prosecutorial
Nos. 02-3158/3175        United States v. DeJohn, et al.     17    18    United States v. DeJohn, et al.       Nos. 02-3158/3175

misconduct deprived DeJohn of due process, and that DeJohn           This court reviews a claim of insufficient evidence to
received ineffective assistance of counsel at trial. Each of       determine whether, “viewing the evidence in the light most
these contentions is without merit or unripe and will be dealt     favorable to the prosecution, any rational trier of fact could
with briefly.                                                      have found the essential elements of the crime beyond a
                                                                   reasonable doubt.” Avery, 128 F.3d at 971 (citations and
  1. Prosecutorial Vindictiveness                                  internal quotation marks omitted). “Actual or constructive
                                                                   possession is sufficient to give rise to criminal liability under
   The original indictment did not charge DeJohn with being        § 922(g). Both actual and constructive possession may be
a felon in possession of a firearm in violation of 18 U.S.C.       proved by circumstantial evidence.” United States v.
§ 922(g)(1), but after plea negotiations failed, in which the      Schreane, 331 F.3d 548, 560 (6th Cir.), cert. denied, 124
allegation was used as a bargaining chip, the charge was           S. Ct. 448 (2003) (citations and internal quotation marks
added to the indictment on which DeJohn was ultimately             omitted). The firearms were found in DeJohn’s residence,
tried. DeJohn asserts that this charge was added due to            which he shared only with his wife, and he knew precisely
prosecutorial vindictiveness based on his assertion of his right   where they were when asked by a law-enforcement agent.
to go to trial. This claim is effectively foreclosed by            There is sufficient evidence from which the jury could have
Bordenkircher v. Hayes, 434 U.S. 357, 363-65 (1978), in            concluded that DeJohn had constructive possession of the
which the Supreme Court held in a similar situation that “in       guns, even without disregarding the testimony he presented as
the ‘give-and-take’ of plea bargaining, there is no such           to their ownership by third parties. See United States v.
element of punishment or retaliation so long as the accused is     Clemis, 11 F.3d 597, 601 (6th Cir. 1993), cert. denied, 511
free to accept or reject the prosecution’s offer.” Id. at 363.     U.S. 1094 (1994).
This circuit has consistently indicated that when the right
asserted by the defendant is simply the right to go to trial, an      DeJohn next argues that the district court erred in not
additional charge entered after a failed plea bargain cannot,      giving an innocent-possession instruction to the jury. Since
after Hayes, form the substance of a viable vindictive             he failed to object, this omission is reviewed for plain error.
prosecution claim. See United States v. Walls, 293 F.3d 959,       See Sims, 975 F.2d at 1240. Innocent possession is a very
970 (6th Cir.), cert. denied, 537 U.S. 1022 (2002); United         narrow defense to § 922(g), requiring the defendant to show
States v. Suarez, 263 F.3d 468, 479-80 (6th Cir. 2001), cert.      that he or another was under an unlawful and imminent threat
denied, 535 U.S. 991 (2002); United States v. Andrews, 633         of death or serious bodily injury, that he had not placed
F.2d 449, 456 (6th Cir. 1980) (en banc), cert. denied, 450         himself recklessly in that situation, that he had no reasonable
U.S. 927 (1981). This claim fails.                                 alternative to violating the law, that a direct causal
                                                                   relationship existed between possessing the firearm and
  2. Additional Challenges to Felon-in-Possession Charge           avoiding the threat, and that he did not maintain the illegal
                                                                   conduct any longer than necessary. See United States v.
   In addition to the unanimity argument dealt with above,         Newcomb, 6 F.3d 1129, 1134-36 (6th Cir. 1993); United
DeJohn makes two additional arguments attacking his felon-         States v. Singleton, 902 F.2d 471, 472-73 (6th Cir.), cert.
in-possession charge. He asserts that the evidence was             denied, 498 U.S. 872 (1990). DeJohn has not alleged that any
insufficient to support a conviction on this count and that he     of these factors exists in this case in any of the evidence he
was entitled to an instruction on innocent possession of           has presented; the district court did not err in failing to
firearms. Both claims fail.                                        instruct the jury on innocent possession.
Nos. 02-3158/3175        United States v. DeJohn, et al.     19    20   United States v. DeJohn, et al.      Nos. 02-3158/3175

  3. Sentencing                                                    wiretap tapes of Harb and Laudato having a conversation
                                                                   about “forty-seven jobs,” which Laudato testified referred to
   DeJohn makes five claims of error regarding his sentencing      forty-seven pounds of marijuana; an hour after that
by the district court. “We review de novo the sentencing           conversation, Laudato in a second taped conversation related
court's interpretation of the Sentencing Guidelines and            to DeJohn that forty-five pounds were available. Laudato
statutes, and we review for clear error its factual findings. If   testified that he was attempting to facilitate the sale of the
the district court's factual findings are not clearly erroneous,   marijuana to DeJohn, and the taped conversations reveal that
this court reviews de novo the determination that the conduct      DeJohn was in turn attempting to sell the marijuana to a third
in question constituted relevant conduct.” Corrado, 304 F.3d       party, who ultimately wouldn’t “do it at that number [i.e.,
at 607 (citations and internal quotation marks omitted).           price].” J.A. at 235-42, 356-57, 362-67. This was sufficient
                                                                   evidence from which the district court could reach the
    a. Drug-Quantity Determination                                 quantity determination of forty-five pounds.
  DeJohn argues that the district court’s determination of the          b. Downward Departure for Role in the Offense
drug quantity attributable to him was unconstitutional under
Apprendi v. New Jersey, 530 U.S. 466 (2000). DeJohn’s                DeJohn contends that the district court erred in believing
Apprendi argument is entirely foreclosed by United States v.       that it did not possess the authority to make a downward
Lawrence, 308 F.3d 623, 634-35 (6th Cir. 2002), which              departure for his role in the offense, which is the only
squarely rejected an identical argument. DeJohn attempts to        condition under which this court can review the refusal to
distinguish Lawrence on the facts, but this attempt is entirely    grant a downward departure. See United States v. Walls, 293
unpersuasive, as Lawrence’s holding is in no way factbound,        F.3d 959, 969 (6th Cir.), cert. denied, 537 U.S. 1022 (2002).
and is foursquare on the law: Apprendi does not apply to           The district court in no way indicated that it did not have the
Guidelines determinations, only statutory maximums, and            authority to grant a downward departure, and in fact granted
Apprendi does not govern increases in statutory minimum            a downward departure for perceived double-counting on
sentences. Id.                                                     DeJohn’s sentence. This claim was not raised below, and in
                                                                   any case, a mere disparity between the sentences of
   DeJohn additionally argues that the jury found him              codefendants, without more, does not justify a downward
responsible for only one pound of marijuana and the district       departure. See United States v. Parker, 912 F.2d 156, 158
court therefore erred in finding him responsible for forty-five    (6th Cir. 1990). Additionally, the length of DeJohn’s
pounds. Even if we were to accept DeJohn’s characterization        sentence has everything to do with his significant criminal
of the jury’s verdict, his argument that the judge is bound by     history (two violent assault convictions) and the felon-in-
the jury’s factfinding in sentencing has been clearly rejected.    possession charges, and little to do with the drug conspiracy
See United States v. Watts, 519 U.S. 148, 149 (1997). The          (which increased his overall offense level by only one level).
district court in this case made the same quantity                 This claim of error is without merit.
determination as to both defendants, addressing the alleged
inconsistency of that determination with the jury verdict, and
came to the reasonable conclusion based on the evidence that
DeJohn had been involved in a conspiracy to distribute forty-
five pounds of marijuana. The government introduced
Nos. 02-3158/3175        United States v. DeJohn, et al.     21    22   United States v. DeJohn, et al.      Nos. 02-3158/3175

    c.   Denial of Downward Adjustment for Acceptance                4. Prosecutorial Misconduct
         of Responsibility
                                                                      DeJohn argues that the prosecutor committed misconduct
   As DeJohn pleaded not guilty and went to trial and the          by arguing facts not in evidence, specifically arguing that the
district court found that he perjured himself on the stand at      amount of marijuana found at DeJohn’s home was not for
trial, a finding strongly supported by the record, DeJohn’s        personal use, and stating that the triple-beam scale found at
argument that the district court committed error in not            DeJohn’s house was of a type used by drug dealers. In
applying a downward adjustment for acceptance of                   determining whether a prosecutor’s inappropriate statements
responsibility is meritless. DeJohn makes the creative             warrant reversal, we apply the two-step test elaborated in
argument that he is entitled to this adjustment despite his        United States v. Leon, 534 F.2d 667, 678-83 (6th Cir. 1976),
refusal to admit his guilt of specific, convicted acts. He is      and United States v. Bess, 593 F.2d 749, 753-57 (6th Cir.
not. See U.S.S.G. § 3E1.1 Application Note 1(a) (in                1979). See United States v. Carroll, 26 F.3d 1380, 1384-87
determining whether a defendant has accepted responsibility,       (6th Cir. 1994) (collecting and explaining cases). “[F]irst, we
relevant consideration is whether defendant “truthfully            determine whether a prosecutor’s remarks were improper, and
admitt[ed] the conduct comprising the offense(s) of                then we determine whether the impropriety amounts to
conviction”).                                                      reversible error.” Carroll, 26 F.3d at 1385. In determining
                                                                   whether reversal is necessary, we look to four factors: “(1)
    d. Enhancement for Obstruction of Justice                      whether the remarks tended to mislead the jury or to prejudice
                                                                   the accused; (2) whether they were isolated or extensive; (3)
   DeJohn objects to the district court’s enhancement of his       whether they were deliberately or accidentally placed before
sentence based on obstruction of justice under U.S.S.G.            the jury; and (4) the strength of the evidence against the
§ 3C1.1. The district court made careful, detailed findings of     accused.” Id. The prosecutor argued that the 7.99 pounds of
exactly when DeJohn had committed perjury, noting                  marijuana found at DeJohn’s home, at the $1800 per pound
specifically that DeJohn had “stated under oath that he had        that DeJohn testified he paid for marijuana, was over $10,000
never distributed drugs.” J.A. at 774. The district court went     worth of marijuana and therefore not for personal use. This
on to say that not only had the jury found that statement to be    argument depends upon facts reasonably in evidence and
“incredible,” but the court itself found it incredible. Id. This   simply makes an inference from those facts; this is not
is borne out by the portions of DeJohn’s testimony regarding       improper. Inasmuch as the prosecutor’s description of the
the taped conversations that he had with Laudato, where he         triple-beam scale as an accessory of drug dealers might be
claims that clear references to third parties who are interested   considered a fact not properly in evidence, and inasmuch as
in purchasing marijuana from DeJohn are references to              it might tend to prejudice the accused, it was a single remark,
himself. DeJohn argues that his perjury was insufficiently         and the evidence against DeJohn is quite strong. This claim
material to support an obstruction-of-justice enhancement; it      of error fails.
is hard to imagine a perjurious statement more material to a
conviction for conspiracy to distribute drugs than one               5. Ineffective Assistance of Counsel
claiming never to have distributed drugs. This argument also
fails. See U.S.S.G. § 3C1.1 Application Note 4(b)                     DeJohn asserts ineffective assistance of counsel with regard
(adjustment applies to “committing . . . perjury”).                to his lawyer’s failure to ask for a unanimity instruction and
                                                                   to object to the alleged prosecutorial misconduct. Normally,
Nos. 02-3158/3175      United States v. DeJohn, et al.   23    24    United States v. DeJohn, et al.       Nos. 02-3158/3175

an appellate court does not consider ineffectiveness of                          _____________________
counsel on direct appeal, as the record of a defendant’s
counsel’s performance is not fully developed, and we                                CONCURRENCE
therefore decline to decide this issue. See United States v.                     _____________________
Pierce, 62 F.3d 818, 833 (6th Cir. 1995), cert. denied, 516
U.S. 1136 (1996); see also Massaro v. United States, 538         RYAN, Circuit Judge, concurring. While the defendants
U.S. 500, 504 (2003) (“In light of the way our system has      have sent up a considerable number of issues in these appeals,
developed, in most cases a motion brought under § 2255 is      there are only two, as the majority opinion correctly
preferable to direct appeal for deciding claims of             recognizes, that have even arguable merit. The first is the
ineffective-assistance.”).                                     claim made by both defendants that they suffered a violation
                                                               of the Speedy Trial Act, and the second is DeJohn’s claim
                   III. CONCLUSION                             that a specific unanimity jury instruction was required for his
                                                               felon-in-possession charge.       While I agree with my
 We therefore AFFIRM the convictions and sentences of          colleagues’ analysis with respect to the jury instruction issue
Harb and DeJohn.                                               and with their conclusion that there was no violation of the
                                                               Speedy Trial Act, my analysis of the latter issue differs
                                                               considerably from theirs.
                                                                 After a close examination of the language of Sections
                                                               3161(b) and 3162(a)(1) and the decisions of this and other
                                                               circuits construing those sections, I am satisfied that there was
                                                               no violation of the Speedy Trial Act because, and solely
                                                               because, there was no arrest within the meaning of Section
                                                               3161(b) to trigger the 30-day pre-indictment clock. United
                                                               States v. Graef, 31 F.3d 362, 364 (6th Cir. 1994); see also
                                                               United States v. Salgado, 250 F.3d 438, 454 (6th Cir. 2001);
                                                               United States v. Mills, 964 F.2d 1186, 1189 (D.C. Cir. 1992)
                                                               (en banc) (collecting cases); United States v. Summers, 894
                                                               F.2d 90, 91 (4th Cir. 1990); United States v. Alfarano, 706
                                                               F.2d 739, 741 (6th Cir. 1983) (per curiam).
                                                                 For the foregoing reasons, I am pleased to concur in the
                                                               court’s judgments of affirmance in these two cases.
