                NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                           File Name: 08a0461n.06
                            Filed: August 1, 2008

                                           No. 05-3408

                          UNITED STATES COURT OF APPEALS
                               FOR THE SIXTH CIRCUIT


UNITED STATES OF AMERICA,                        )
                                                 )
       Plaintiff-Appellee,                       )
                                                 )
v.                                               )    ON APPEAL FROM THE UNITED
                                                 )    STATES DISTRICT COURT FOR THE
PATRICK JAMES PUTTICK,                           )    NORTHERN DISTRICT OF OHIO
                                                 )
       Defendant-Appellant.                      )




       Before: DAUGHTREY, GILMAN, and ROGERS, Circuit Judges.
       Rogers, Circuit Judge. This case is part of a consolidated appeal involving thirteen

defendants who were members of the Outlaw Motorcycle Club (“OMC”), an international

motorcycle club with chapters across the country and around the world. In 1997, the Federal Bureau

of Investigation and state law enforcement agencies began an investigation into the Green region of

the OMC, which consists of chapters in Dayton, Ohio; Fort Wayne, Indiana; Louisville, Kentucky;

Indianapolis, Indiana; and Oklahoma City, Oklahoma. As a result of the investigation, a grand jury

in the Northern District of Ohio returned a 40-count indictment in 2003 charging the defendants with

various offenses, including Racketeer Influenced and Corrupt Organizations Act (“RICO”), drug

trafficking, and firearms offenses. The defendants were tried before an anonymous jury.
No. 05-3408
United States v. Puttick

       Defendant Patrick J. Puttick was the boss of the “Green Region” of the OMC. The

indictment leveled four charges against him: (1) substantive RICO in violation of 18 U.S.C. §

1962(c); (2) RICO conspiracy in violation of 18 U.S.C. § 1962(d); (3) narcotics conspiracy in

violation of 21 U.S.C. § 841(a)(1); and (4) use of a communication facility to commit a felony under

the Controlled Substances Act in violation of 21 U.S.C. § 843(b) and 18 U.S.C. § 2. Under the

RICO conspiracy count, the indictment alleged several overt acts. Puttick claims that these

allegations constitute a bill of particulars. Because the Government conceded this point at trial,

Puttick’s claim is accepted by this court.


       At trial, the Government presented evidence that Puttick had supplied cocaine to OMC

member Gary Hohn, and that Puttick had participated in making drug distribution policies for the

OMC. Nevertheless, Puttick was acquitted on all charges except RICO conspiracy.


       At the sentencing hearing, the district court determined Puttick’s base offense level to be 36,

presumably based on the recommendation in the presentence report that Puttick be found responsible

for 144 kilograms of cocaine. However, it is not entirely clear how the district court came to this

conclusion. After establishing the base offense level, the district court enhanced Puttick’s offense

level by three levels based on his leadership role in the OMC. That left Puttick with an offense level

of 39, which provided a Guidelines range of 292 to 365 months in prison. Despite this range, the

district court ultimately sentenced Puttick to 20 years because that is the statutory maximum sentence

for RICO conspiracy. Unlike with respect to most of the other defendants in this case, however, the



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No. 05-3408
United States v. Puttick

district court did not impose an alternative sentence under an advisory Guidelines regime. In fact,

the district court expressed regret at its lack of discretion to impose a lesser sentence.


        Puttick now argues that his conviction should be vacated because his rights were violated by

a variance between the bill of particulars and the evidence presented at trial, and because the district

court erroneously admitted an audiotaped conversation allegedly involving Puttick without first

requiring that a witness identify Puttick’s voice. Puttick also argues that his sentence should be

vacated because the district court applied the Sentencing Guidelines as mandatory, and because the

district court erroneously calculated his Sentencing Guidelines offense level.1 Because Puttick is

correct that the district court sentenced him under a mandatory Guidelines regime, his sentence must

be vacated and the case remanded for resentencing. His conviction, however, is sound.




        1
         Puttick also adopts the two arguments from co-defendant John P. Walker: (1) that the
admission of post-arrest statements made by co-defendants Fowler and Carlisle was a violation of
the Confrontation Clause; and (2) that the empaneling of an anonymous jury was unconstitutional.
The first argument is discussed in United States v. Walker, No. 04-4478, __ WL __ (6th Cir. 2008),
and the entire discussion need not be repeated here. Any violation of the Confrontation Clause was
rendered harmless by the fact that the evidence against Puttick was so strong that he would have been
convicted even if the statements had not been admitted. Likewise, any error caused by the district
court’s failure to give a limiting instruction with respect to Fowler’s and Carlisle’s statements was
also rendered harmless by the overwhelming evidence of Puttick’s guilt. The second adopted
argument is unavailing as well. It was fully discussed in the companion case of United States v.
Lawson, __ F.3d __ (6th Cir. 2008), and that discussion need not be repeated here.
        Puttick also makes the argument that this court should modify the holding of United States
v. Booker, 543 U.S. 220 (2005), in order to prohibit judicial fact-finding for the purposes of
determining a defendant’s Guidelines range. There is no need to address this argument because this
court clearly cannot modify a holding of the United States Supreme Court.

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No. 05-3408
United States v. Puttick

        As a preliminary matter, there is no real dispute that Puttick’s sentence must be vacated. The

Government concedes that the district court treated the Sentencing Guidelines as mandatory, and the

record makes it clear that this concession is correct. The transcript of the sentencing hearing plainly

shows that the district court was under the impression that it had no discretion to impose a lesser

sentence on Puttick. Therefore, this court’s decision in United States v. Barnett, 398 F.3d 516, 527-

28 (6th Cir. 2005), requires that Puttick’s sentence be vacated and the case be remanded for

resentencing.


        Because Puttick’s sentence must be vacated, we do not address the argument that his

Guidelines offense level was calculated incorrectly. On remand, however, we note that it would be

helpful for the district court to clarify the basis for its finding that Puttick was responsible for 144

kilograms of cocaine.


        Although Puttick’s sentence is defective, there are no flaws in his conviction. First, his rights

were not violated by a variance between the bill of particulars and the evidence presented by the

Government at trial. Puttick argues to the contrary and points to the testimony of Tracy Tipton in

support. Tipton testified that Puttick supplied Tipton’s boyfriend, OMC member Gary Hohn, with

cocaine in the amount of three to six kilograms per month for four years. Because the acts about

which Tipton testified were not mentioned among the overt acts alleged in the indictment, Puttick

asserts that Tipton’s testimony amounts to a variance from the bill of particulars. Puttick concedes

that the plain error standard applies to this claim because there was no contemporaneous objection

on this ground at trial. Aside from the plain error standard, Puttick’s argument fails because there

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No. 05-3408
United States v. Puttick

does not appear to have been a variance. And even if the admission of Tipton’s testimony did

amount to a variance, Puttick has not satisfied the high hurdle of plain error review because he has

not shown that he was prejudiced by it. See United States v. Williams, 962 F.2d 1218, 1226 (6th Cir.

1992) (citing United States v. Haskins, 345 F.2d 111, 114 (6th Cir. 1965) (holding that variance is

not grounds for reversal unless it causes prejudice)).


        There appears to have been no variance here because Tipton’s testimony did not prove “facts

materially different from those alleged in the indictment.” United States v. Flowal, 163 F.3d 956,

962 (6th Cir. 1998) (quoting United States v. Barrow, 118 F.3d 482, 488 (6th Cir. 1997)). By

incorporating the relevant parts of the substantive RICO charge, the RICO conspiracy charge alleges

that narcotics distribution was one of the criminal activities of the RICO conspiracy. In light of this

allegation, Tipton’s testimony did not present a situation in which facts materially different from

those alleged in the indictment were presented at trial. To the contrary, the facts presented through

Titpton’s testimony were directly in line with those alleged in the indictment.


        Even if there were a variance, however, Puttick has not demonstrated that it rises to the level

of plain error. The plain error standard requires the appellant to prove that there is: (1) an error that

is plain, i.e., obvious or clear; (2) that the error affected his substantial rights; and (3) that the error’s

adverse impact seriously affected the fairness, integrity, or public reputation of the judicial

proceedings. See United States v. Highgate, 521 F.3d 590, 595 (6th Cir. 2008) (quoting United

States v. Davis, 397 F.3d 340, 346 (6th Cir. 2005)). This standard is not met here because Puttick

has not convincingly shown that the district court made an error, much less a plain error. Assuming

                                                    -5-
No. 05-3408
United States v. Puttick

such an error, however, Puttick has failed to show that it affected his substantial rights. The

purported variance did not, as he argues, deprive him of his fundamental and substantial right to be

apprised of the charges against him. Puttick had ample notification of the charges against him. He

hardly went into the trial with no idea that the Government might try to prove that he was involved

in narcotics distribution, when both the substantive RICO and RICO conspiracy counts alleged that

drug distribution was one of the activities of the RICO enterprise, and when Puttick was also charged

with one count of narcotics conspiracy. It may be true that he did not know what Tipton would

testify to — or even that she would testify at all — but he was not entitled to know that information.

As this court said in United States v. Salisbury, 983 F.2d 1369 (6th Cir. 1993), “a defendant is not

entitled to discover all the overt acts that might be proven at trial.” Id. at 1375 (citing United States

v. Kilrain, 566 F.2d 979, 985 (5th Cir. 1978)). Thus, any variance did not affect Puttick’s substantial

rights. Additionally, again assuming a variance, Puttick has not met the burden of demonstrating

that the variance affected the fairness, integrity, or public reputation of the judicial proceedings.


        Finally, there was no error in the district court’s admission of an audiotaped conversation

allegedly involving Puttick. The audiotape in question contains a recording of an OMC regional

meeting held in Kittanning, Pennsylvania, in August of 2002. At trial, the Government alleged that

Puttick could be heard on the tape. Puttick argues that the tape was inadmissible because the

Government did not present a witness to testify that it was Puttick’s voice on the tape. Instead of

having a witness identify the voice, the district judge — at a sidebar conference — identified

Puttick’s voice himself and determined that the tape should be admitted into evidence. Puttick


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No. 05-3408
United States v. Puttick

argues that a witness, rather than the judge, should have identified his voice. To the contrary, we

find nothing wrong with the procedure used by the district court.


        Rule 901(a) of the Federal Rules of Evidence requires that an audiotape be authenticated, but

it does not require that it be authenticated by a witness. See United States v. Sliker, 751 F.2d 477,

499-500 (2d Cir. 1984). It is permissible for the judge to make a preliminary determination as to

authentication, admit the evidence conditionally under Rule 104(b), and then allow the jurors to be

the final arbiters of whether it was actually authenticated. See id. In Sliker, the Second Circuit

affirmed the very same procedure used by the district court in this case. In the face of an objection

on the ground that the voices on the audiotape had not been identified by a witness, the district court

admitted the tape based on the court’s own finding — made at a sidebar conference — that “it is

clear that it is [the defendant’s] voice.” See id. at 497. The Second Circuit affirmed the admission

of the evidence on the basis that the district court can admit the evidence conditionally under Rule

104(b) without witness authentication and leave it to the jury to determine whether the evidence had

been truly authenticated. See id. at 499-500. The Fourth Circuit has adopted a similar approach as

well, noting that “the ultimate resolution of authenticity is a question for the jury.” See United States

v. Branch, 970 F.2d 1368, 1371 (4th Cir. 1992). The reasoning of the Second and Fourth Circuits

is compelling and comports with the language of Rule 901(a). The method of identification used

by the district court was appropriate.


        As in Sliker, any potential problem posed by the procedure used by the district court is rooted

in the fact that the district court did not specifically instruct the jurors that they were the final judges

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No. 05-3408
United States v. Puttick

of whether the voice on the tape was that of the defendant. See Sliker, 751 F.2d at 500. Although

not required to do so, it is preferable for the district court to instruct the jurors that they are the final

arbiters of the authentication of any evidence that was admitted preliminarily under Rule 104(b).

See id. The question of whether to give this kind of specific instruction generally “lies in the

discretion of the trial judge.” Id. In this case, it cannot be said that the district court abused its

discretion by failing to provide a specific instruction since counsel failed to request one, and the

district court delivered a general instruction to the effect that the jury was the sole judge of the facts.

See id.


          For the foregoing reasons, Puttick’s conviction is AFFIRMED, his sentence is VACATED,

and the case is REMANDED for resentencing.




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