United States v. Owusu Firempong

NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
File Name: 13a0969n.06

Nos. 11-1522, 11-2534, 12-1698, 11-2540

UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT

FILED
UNITED STATES OF AMERICA, ) Nov 13, 2013
) DEBORAH S. HUNT, Clerk
Plaintiff-Appellee, )
)
v. )
) ON APPEAL FROM THE
EMOND DUREA LOGAN, MARLAN MICAH ) UNITED STATES DISTRICT
MCRAE, and OWUSU ANANEH FIREMPONG, ) COURT FOR THE WESTERN
) DISTRICT OF MICHIGAN
Defendants-Appellants. )
)

BEFORE: ROGERS, GRIFFIN, and DONALD, Circuit Judges.

GRIFFIN, Circuit Judge.

These consolidated appeals arise from defendants’ convictions of crimes stemming from

their involvement in a conspiracy to transport significant quantities of cocaine from California to

Michigan, where cocaine was distributed in Detroit and Lansing. Defendant Logan pleaded guilty

to conspiracy to distribute and possess with intent to distribute five or more kilograms of cocaine,

in violation of 21 U.S.C. §§ 846, 841(a)(1) (cocaine conspiracy), and now appeals his sentence.

Defendants McRae and Firempong were each convicted by a jury of cocaine conspiracy, and

Firempong was also convicted of conspiracy to launder money, in violation of 18 U.S.C. § 1956(h).

McRae and Firempong appeal their convictions and sentences. For the reasons set forth below, we

affirm.
Nos. 11-1522, 11-2534, 12-1698, 11-2540
United States v. Logan, et al.

I.

We first address Logan’s claims. Logan argues that the government breached the plea

agreement and he is therefore entitled to resentencing. Although we agree with Logan that the

government breached the plea agreement, we disagree that he is entitled to resentencing.

A.

It is undisputed that Logan raised his claim that the government breached the plea agreement

for the first time on appeal and that his plea agreement contained a waiver of his appellate rights.

This court reviews de novo “the question of whether a defendant waived his right to appeal his

sentence in a valid plea agreement.” United States v. Keller, 665 F.3d 711, 715 (6th Cir. 2011)

(internal citation and quotations omitted). But, because Logan did not assert in the district court that

the government breached the plea agreement, even if we conclude that Logan did not waive his right

to appeal his sentence, our review of his claim is for plain error affecting substantial rights. See

Puckett v. United States, 556 U.S. 129, 134 (2009) (the plain-error test applies “in the usual fashion”

to a forfeited claim that the government breached a plea agreement).

Plain-error review “involves four steps, or prongs.” Id. at 135.

First, there must be an error or defect–some sort of “[d]eviation from a legal
rule”–that has not been intentionally relinquished or abandoned, i.e., affirmatively
waived, by the appellant. [United States v. Olano, 507 U.S. 725,] 732-733, 113 S.
Ct. 1770 [(1993)]. Second, the legal error must be clear or obvious, rather than
subject to reasonable dispute. See id., at 734, 113 S. Ct. 1770. Third, the error must
have affected the appellant’s substantial rights, which in the ordinary case means he
must demonstrate that it “affected the outcome of the district court proceedings.”
Ibid. Fourth and finally, if the above three prongs are satisfied, the court of appeals
has the discretion to remedy the error-discretion which ought to be exercised only
if the error “‘seriously affect[s] the fairness, integrity or public reputation of judicial
proceedings.’” Id., at 736, 113 S. Ct. 1770 (quoting United States v. Atkinson, 297

-2-
Nos. 11-1522, 11-2534, 12-1698, 11-2540
United States v. Logan, et al.

U.S. 157, 160, 56 S. Ct. 391, 80 L. Ed. 555 (1936)). Meeting all four prongs is
difficult, “as it should be.” United States v. Dominguez Benitez, 542 U.S. 74, 83, n.9,
124 S. Ct. 2333, 159 L. Ed. 2d 157 (2004).

Id.

B.

We “use traditional contract law principles in interpreting and enforcing” plea agreements

because they are contractual in nature. United States v. Bowman, 634 F.3d 357, 360 (6th Cir. 2011).

To that end, in determining whether a plea agreement has been breached, this court examines what

the defendant “reasonably understood” when he entered into the agreement. United States v. Phibbs,

999 F.2d 1053, 1081 (6th Cir. 1993). “[T]he most persuasive evidence of what a defendant

reasonably appreciated as his bargain is found in the plain language of the court-approved

agreement.” Id.

Turning to the plain language of the plea agreement at issue here, the critical passage of the

plea agreement specified that the government would

not . . . oppose [Logan’s] request for a two-level reduction of his offense level for
acceptance of responsibility under § 3E1.1(a) of the Sentencing Guidelines.
However, the U.S. Attorney’s Office reserves the right to object to [Logan’s] request
if it subsequently learns of conduct by [Logan] inconsistent with the criteria set forth
in the Commentary to Section 3E1.1.

In its sentencing memorandum, however, the government did oppose Logan’s request for a two-level

reduction for acceptance of responsibility when it asserted that “Logan’s guidelines properly . . . do

not include a . . . reduction for acceptance of responsibility[.]” Similarly, at sentencing, the

government indicated that it had “no disagreements” with the presentence report (PSR), which

explicitly stated that a reduction for acceptance of responsibility was improper. At sentencing, the

-3-
Nos. 11-1522, 11-2534, 12-1698, 11-2540
United States v. Logan, et al.

government also specifically asked that Logan’s motion for a downward variance for acceptance of

responsibility be denied. In short, the government’s position in its memorandum and at sentencing

violated the plain language of the plea agreement.

The government notes that, while he was released on bond, Logan engaged in conduct

consistent with obstruction of justice, including funding a large marijuana grow operation,

encouraging a government witness not to cooperate, and threatening to kill both Alvin Jackson, a

co-conspirator, and the Assistant United States Attorney (AUSA) prosecuting the case against

Logan. The government argues that it did not breach the plea agreement because “a promise not to

oppose a reduction for acceptance of responsibility does not preclude the government from seeking

an enhancement for obstruction of justice . . . in the absence of any agreement on obstruction.” In

essence, the government argues that acceptance of responsibility and obstruction of justice are two

distinct concepts, and that it did not violate the plea agreement by advocating for an obstruction of

justice enhancement, even though in most cases the practical effect of an obstruction of justice

enhancement is the denial of an acceptance of responsibility reduction. See U.S.S.G. § 3E1.1, cmt.

n.4 (conduct resulting in an enhancement for obstruction of justice ordinarily indicates that the

defendant has not accepted responsibility except in extraordinary cases). The government is correct

that this court has held that where the government “stand[s] mute” as to a condition negotiated in

the plea agreement, it does not violate the plea agreement by seeking other enhancements not spelled

out in the plea agreement. United States v. Miller, 48 F. App’x 933, 946 (6th Cir. 2002); see also

United States v. Yellow, 627 F.3d 706, 708–09 (8th Cir. 2010) (no breach where government did not

oppose acceptance of responsibility but did present evidence of obstruction and the district court

-4-
Nos. 11-1522, 11-2534, 12-1698, 11-2540
United States v. Logan, et al.

found that the defendant obstructed justice and that therefore he had not accepted responsibility);

United States v. Wilkins, 346 F. App’x 936, 938 (4th Cir. 2009) (per curiam) (same). Indeed, there

would have been no breach had the government remained neutral at sentencing as to acceptance of

responsibility and separately advocated for an enhancement for obstruction of justice. But that is

not what the government did. It did not assert that an enhancement for obstruction of justice was

appropriate and then “stand mute” on the issue of acceptance of responsibility. Miller, 48 F. App’x

at 946. Rather, in its sentencing memorandum and at the sentencing hearing, the government argued

that an enhancement for obstruction of justice was appropriate and then went further, arguing that,

therefore, a reduction for acceptance of responsibility was not appropriate. At that point, the

government’s bargained-for neutrality on the issue of acceptance of responsibility ceased, and it thus

violated the promise it made in the plea agreement.

The government also argues that Logan waived his right to appeal his sentence. We

disagree. Although it is undisputed that Logan’s plea agreement contained a waiver provision,“[i]f

the government materially breaches a plea agreement, then any appellate waiver contained in the

agreement is unenforceable.” United States v. Munoz, 430 F. App’x 495, 498 (6th Cir. 2011) (citing

United States v. Swanberg, 370 F.3d 622, 626–29 (6th Cir. 2004) (the defendant could appeal his

sentence where the government materially breached the plea agreement, despite a valid waiver)).

Here, the government’s breach was material. The plea agreement provision regarding the

government’s position on acceptance of responsibility was central to the plea agreement; moreover,

the government’s breach deprived Logan of “the benefit which he reasonably expected,” namely,

its neutrality at sentencing on the issue of acceptance of responsibility. RESTATEMENT (SECOND)

-5-
Nos. 11-1522, 11-2534, 12-1698, 11-2540
United States v. Logan, et al.

OF CONTRACTS § 241 (1979) (discussing factors relevant to whether a breach is material); see also

Bowman, 634 F.3d at 360 (this court uses contract law principles when analyzing plea agreements).

However, because Logan has failed to establish that the government’s breach affected his

substantial rights under plain-error analysis, he is not entitled to resentencing. Logan relies heavily

on United States v. Barnes, 278 F.3d 644, 648 (6th Cir. 2002), in which this court held that the

government’s breach of a plea agreement was plain error affecting the defendant’s substantial rights

because “the breach violated [the defendant’s] constitutional rights such that the fundamental

fairness and integrity of the judicial proceeding were compromised.” Id. Logan argues that Barnes

and its progeny stand for the proposition that the government’s breach of a plea agreement per se

satisfies the third prong of plain-error review, and therefore remand for resentencing is appropriate

here. We disagree. Logan ignores Keller, in which this court squarely held that “[w]e do not think

[Barnes’] holding, post-Puckett, applies . . . .” 665 F.3d at 715. As previously explained, the

Supreme Court in Puckett held that plain-error analysis applies “in the usual fashion” to the

government’s breach of a plea agreement; accordingly, Logan bears the burden to establish not only

that the breach was plain error, but also that it “affected the outcome of the district court

proceedings.” 556 U.S. at 134, 135 (internal citation and quotation marks omitted).

Here, Logan cannot show that the government’s breach affected the outcome of the district

court proceedings. As noted above, generally where a defendant has obstructed justice, he has not

accepted responsibility, and, accordingly, a reduction for acceptance of responsibility is

inappropriate in such cases. U.S.S.G. § 3E1.1, cmt. n.4. The exception is for “extraordinary cases,”

id., and we conclude that this case is not extraordinary. First, the conduct underlying the obstruction

-6-
Nos. 11-1522, 11-2534, 12-1698, 11-2540
United States v. Logan, et al.

of justice enhancement was serious—it included Logan’s threats while released on bond to kill the

AUSA and Alvin Jackson, a witness against him. There was also evidence that, prior to being

indicted, Logan was directly involved in the attempted murder of Alvin Jackson. Second, at

sentencing, Logan continued to deny that he was involved in Alvin Jackson’s attempted murder, and

when confronted with his statements threatening to kill the AUSA, Logan was not contrite but

attempted to explain them away as “bluster.” The district court explicitly found that Logan was “not

telling the truth in regard to whether, if he could, he would accomplish a hit on either [Alvin]

Jackson or [the AUSA],” and therefore “[t]his is not one of those unusual cases where acceptance

should be given where obstruction is assessed because in the Court’s judgment, the testimony . . .

regarding obstruction is particularly strong.” Indeed, this case bears a striking resemblance to

United States v. Angel, 355 F.3d 462, 478 (6th Cir. 2004). There, this court concluded that where,

as here, the defendant had attempted to kill a witness and expressed no contrition for that conduct,

the case was not extraordinary. Id. This court contrasted the facts of Angel with other cases found

to be extraordinary, explaining:

Attempting to have a witness killed . . . is far more serious than [the facts in other
cases such as] ignoring government orders . . . lying about a legal name and criminal
history . . . or making false statements to the grand jury . . . . Even more significant
is the fact that, unlike the defendant in [another case determined by this court to be
extraordinary, the defendant’s] obstructive conduct happened after he was indicted.
[The defendant] never attempted to undo that conduct, he offered no assistance to the
authorities, and he went to trial to challenge the essential factual elements of guilt.

Id. Accordingly, Logan cannot establish that but for the government’s breach of the plea agreement,

the district court would have concluded that this was an extraordinary case and granted him the

acceptance of responsibility reduction, when it found that an obstruction of justice enhancement was

-7-
Nos. 11-1522, 11-2534, 12-1698, 11-2540
United States v. Logan, et al.

appropriate. He has therefore failed to demonstrate that his substantial rights were affected.

Resentencing is not required.

For essentially the same reasons, and contrary to Logan’s other argument on appeal, we

conclude that the district court did not clearly err by concluding that an obstruction of justice

enhancement was appropriate, nor did it err by determining that this was not an extraordinary case

where an acceptance of responsibility reduction was appropriate. As discussed, this case is

analogous to Angel and the same substantive result is warranted.

II.

McRae and Firempong raise two common issues on appeal, and we will address those issues

together. First, McRae and Firempong argue that venue was improper in the Western District of

Michigan. Specifically, Firempong argues that venue was improper as to him because his

involvement in the conspiracy included the purchase of a motorhome using drug money; the

motorhome was subsequently used to transport drugs to and from Michigan. The motorhome

purchase occurred in California, not Michigan, and Firempong therefore argues that venue was

improper in Michigan. McRae argues that the government engaged in improper forum shopping by

selecting the Western District of Michigan, where it was more likely to secure a conviction,

particularly in light of the fact that McRae is African-American. Second, they argue that the district

court erred by forcing the jury to deliberate late into the night. We disagree.

A.

This court reviews de novo challenges to venue raised in the district court. United States v.

Zidell, 323 F.3d 412, 420 (6th Cir. 2003). However, “the determination of the merits of a selective

-8-
Nos. 11-1522, 11-2534, 12-1698, 11-2540
United States v. Logan, et al.

prosecution claim is essentially a factual inquiry, [and therefore this court] review[s] such a

determination for clear error.” United States v. Jones, 159 F.3d 969, 976 (6th Cir. 1998).

1.

We conclude that Firempong forfeited his right to challenge venue, and even if he had not,

venue was proper in the Western District of Michigan. “[O]bjections to defects in venue are usually

waived if not asserted before trial[.]” United States v. Grenoble, 413 F.3d 569, 573 (6th Cir. 2005).

However, where the defect is “apparent on the face of the indictment” and the defendant “does not

have notice of the defect through other means, a conclusion of waiver is not appropriate.” Id. Here,

the indictment was very specific that Firempong was being charged with, among other things,

conspiracy to launder money arising from the purchase of “various motor vehicles, including

minivans and motorhomes” which in turn were used to transport drugs from California to Michigan.

Firempong’s entire venue argument is that because the motorhome purchase occurred in California,

venue was improper in Michigan; however, he had notice from the indictment that the government

theory of the case against him included that he purchased the motorhome using drug proceeds.

Accordingly, because the nature of the alleged defect was apparent on the face of the indictment and

the indictment provided Firempong with notice of the alleged defect, Firempong waived his right

to challenge the propriety of the venue in this case.

But, even assuming that Firempong had not forfeited his right to challenge venue, venue was

proper. Under the plain text of 18 U.S.C. § 1956(i)(2), venue for a money laundering conspiracy

is proper “in any other district where an act in furtherance of the . . . conspiracy took place.” The

government bears the burden of showing by a preponderance of the evidence that venue is proper.

-9-
Nos. 11-1522, 11-2534, 12-1698, 11-2540
United States v. Logan, et al.

United States v. Beddow, 957 F.2d 1330, 1335 (6th Cir. 1992). In Whitfield v. United States, 543

U.S. 209, 218 (2005), the Supreme Court explained that, under § 1956(i), venue is proper: (1) in

the district where venue would lie if the completed money laundering offense had been

accomplished, or (2) any district where an “overt act in furtherance of the conspiracy” was

committed. Moreover, the Supreme Court has held that venue is proper in a district where a co-

conspirator has carried out overt acts even if the defendant never entered that district. United States

v. Rodriguez-Moreno, 526 U.S. 275, 281 (1999).

Here, the government presented evidence that, among other things, Firempong was involved

in a conspiracy to launder drug proceeds from drugs sold in Michigan. Drugs were transported from

California to Michigan, and the proceeds were transported from Michigan to California; once in

California, the proceeds were laundered through the purchase of vehicles, including the motorhome

Firempong bought for Charles Jackson, Sr., the conspiracy’s kingpin. Accordingly, the government

established that an overt act in furtherance of the conspiracy—the sale of drugs—occurred in

Michigan. Whitfield, 543 U.S. at 218. That Firempong never entered Michigan is immaterial,

because his co-conspirators did for the purpose of selling the drugs that produced the proceeds that

Firempong laundered. Rodriquez-Moreno, 526 U.S. at 281.

Firempong relies on one case in support of his argument, United States v. Williams, 274 F.3d

1079 (6th Cir. 2001). There, the connection between the defendant and Michigan, where trial was

held, was a government informant who falsely told the defendant that he intended to sell drugs in

Michigan. This court held that the government informant could not be a co-conspirator and

- 10 -
Nos. 11-1522, 11-2534, 12-1698, 11-2540
United States v. Logan, et al.

concluded that venue was improper. Id. at 1084. No such circumstances exist here. Williams is

distinguishable and venue was proper in the Western District of Michigan.

2.

With regard to McRae, to the extent his venue argument is not race-based, the same result

is warranted as for Firempong and for the same reasons—McRae only raised a venue defect on his

motion for acquittal, not before trial. He has accordingly forfeited it. Grenoble, 413 F.3d at 573.

To the extent his claim is race-based, he has also forfeited his right to challenge venue. This court

has previously held that allegations of race-based forum shopping implicate Federal Rule of

Criminal Procedure 12(b)(3)(A) and must be raised before trial. United States v. Auston, 355 F.

App’x 919, 923 (6th Cir. 2009).

However, in any event, McRae has failed to show that his due process rights were violated.

McRae’s argument appears to be that the government chose Michigan as a forum because it could

obtain a more racially favorable jury pool in Michigan. To show that a prosecutorial decision

violated due process, a defendant bears the burden to show not only that the prosecution’s alleged

misconduct produced a discriminatory result, but that the prosecution was motivated by

discriminatory intent. Jones, 159 F.3d at 976. McRae has shown neither. He simply asserts in a

conclusory manner that Michigan is less racially diverse than California. Even if this were enough

to meet his burden to show that the prosecution had a discriminatory effect (and it is not), he still

would fail to meet his burden with regard to discriminatory intent. He points to no evidence, most

likely because none appears to exists, that the decision to prosecute the case in Michigan instead of

California was motivated by race.

- 11 -
Nos. 11-1522, 11-2534, 12-1698, 11-2540
United States v. Logan, et al.

B.

Firempong and McRae both correctly note that a district court cannot force the jury to keep

deliberating in order to coerce a verdict. See Jenkins v. United States, 380 U.S. 445, 446 (1965).

But that is not what occurred here. The jury sent the court a note asking if court staff could contact

their families to let them know that the jurors were still at the courthouse—the jury did not ask to

be excused for the evening. In fact, the district court noted that, in its estimation, the jury was not

“shy in asking for things. If they request that they want to go home, then I’ll grant that request. But

until I hear from them on that subject, I’m going to let them continue.” But no such request ever

came, and so there was no occasion to dismiss the jury for the evening. Simply put, defendants’

characterization that the district court held the jurors back and forced them to continue deliberating

and coerced a verdict is unsupported by the record.

III.

We now turn to issues raised exclusively by Firempong. He raises issues related to the

admission of evidence; whether the evidence was sufficient to convict him of cocaine conspiracy;

the district court’s calculations with regard to the drug quantity and forfeiture money judgment

attributable to him; and the substantive reasonableness of his sentence. Each of his arguments is

meritless.

A.

Firempong’s first issue on appeal concerns a letter from Scott Herman, Firempong’s former

cellmate, to the government. In the letter, Herman says he is willing to testify against Firempong,

and that, in jail, Firempong indicated that he was directly involved in the cocaine conspiracy.

- 12 -
Nos. 11-1522, 11-2534, 12-1698, 11-2540
United States v. Logan, et al.

Ultimately, Herman testified against Firempong at trial, and the letter was admitted following

Firempong’s counsel’s cross-examination of Herman. The district court admitted the letter as a prior

consistent statement under Federal Rule of Evidence 801(d)(1)(B). On appeal, Firempong argues

that the letter was improperly admitted.

A district court’s error “with respect to the admission of evidence is subject to harmless

error analysis, and it is well settled that an error which is not of a constitutional dimension is

harmless unless it is more probable than not that the error materially affected the verdict.” United

States v. Davis, 577 F.3d 660, 670 (6th Cir. 2009) (internal citation and quotation marks omitted).

Here, even assuming without deciding that the admission of Herman’s letter constituted error, the

error was harmless because it was cumulative. Herman’s letter indicated that, while they were

incarcerated together, Firempong told Herman that Firempong was involved with kingpin Charles

Jackson, Sr., who Firempong also knew as “Canty,” that “Canty” introduced Firempong to the

“cocaine business,” and that Firempong became involved in dealing drugs because of his gambling

addiction. These are the same facts to which Herman testified on the stand and on which he was

cross-examined by Firempong’s counsel. Accordingly, because the information in the letter was

cumulative to Herman’s in-court testimony, we conclude that the letter’s admission did not

materially affect the verdict.

B.

Firempong next argues that the district court erred by admitting evidence that he had not filed

tax returns for years coinciding with the conspiracy. Specifically, Firempong argues that this

evidence was inadmissible under Federal Rule of Evidence 404(b). We disagree.

- 13 -
Nos. 11-1522, 11-2534, 12-1698, 11-2540
United States v. Logan, et al.

We review a district court’s decision whether to admit or exclude evidence for an abuse of

discretion. United States v. Lopez-Medina, 461 F.3d 724, 741 (6th Cir. 2006). However, we review

“for clear error the court’s factual determinations that underpin its legal conclusions.” United States

v. Scott, 693 F.3d 715, 721 (6th Cir. 2012) (internal citation and quotation marks omitted).

Rule 404(b), which governs the admissibility of “other acts” or “other crimes” evidence, does

not apply to the evidence of Firempong’s failure to file tax returns. “Evidence which is probative

of the crime charged and does not solely concern uncharged crimes is not ‘other crimes’ evidence

[under Rule 404(b)].” United States v. DeClue, 899 F.2d 1465, 1472 (6th Cir. 1990). Firempong

was charged with participating in a money laundering conspiracy. “Failure to file tax returns is

relevant to the existence of, and a defendant’s participation in, a money laundering conspiracy.”

United States v. Mitchell, 613 F.3d 862, 866 (8th Cir. 2010). The district court, accordingly, did not

abuse its discretion when it admitted this evidence. Moreover, in Mitchell, the court concluded that

the admission of tax return evidence in a money laundering conspiracy case was not significantly

more prejudicial than probative such that exclusion under Rule 403 was appropriate. Id. Here,

Firempong argues in general terms that the evidence was prejudicial and caused him not to testify,

but he makes no argument regarding why that prejudice significantly outweighs the evidence’s

probative value.

C.

Next, Firempong argues that there was insufficient evidence to convict him of cocaine

conspiracy. Specifically, he argues that none of the witnesses involved in the conspiracy testified

that he was involved in the sale or distribution of cocaine, and in fact some witnesses testified that

- 14 -
Nos. 11-1522, 11-2534, 12-1698, 11-2540
United States v. Logan, et al.

he was not involved at all. Firempong argues that the only evidence the government presented of

his involvement in the cocaine conspiracy was the testimony of Scott Herman, a jailhouse informant.

We review de novo a claim of insufficient evidence and assess the evidence “in the light

most favorable to the prosecution to determine whether any rational trier of fact could have found

the essential elements of the crime beyond a reasonable doubt.” United States v. Campbell, 549 F.3d

364, 374 (6th Cir. 2008). “[This court] will reverse a judgment based on a finding of insufficient

evidence only if the judgment is not supported by substantial and competent evidence upon the

record as a whole.” Id. Further, this court must make all reasonable inferences in support of the

jury’s verdict. Id.

[A]n appellate court’s reversal for insufficiency of the evidence is in effect a
determination that the government’s case against the defendant was so lacking that
the trial court should have entered a judgment of acquittal, rather than submitting the
case to the jury. Lockhart v. Nelson, 488 U.S. 33, 39, 109 S. Ct. 285, 102 L. Ed. 2d
265 (1988). Because the Double Jeopardy Clause affords a defendant who obtains
a judgment of acquittal absolute immunity from further prosecution for the same
crime, the Supreme Court has stated that “it ought to do the same for the defendant
who obtains an appellate determination that the district court should have entered a
judgment of acquittal.” Id. Accordingly, defendants bear a heavy burden when
asserting insufficiency of the evidence arguments. United States v. Spearman, 186
F.3d 743, 746 (6th Cir.1999).

United States v. Wettstain, 618 F.3d 577, 583 (6th Cir. 2010). Moreover, this court must “resolve

all issues of credibility in favor of the fact finder’s verdict.” United States v. Wade, 318 F.3d 698,

701 (6th Cir. 2003) (internal brackets, citation, and quotation marks omitted). Circumstantial

evidence “is entitled to the same weight as direct evidence[.]” United States v. Farley, 2 F.3d 645,

650 (6th Cir. 1993), and “[c]ircumstantial evidence alone is sufficient to sustain a conviction and

such evidence need not remove every reasonable hypothesis except that of guilt[.]” Wettstain, 618

- 15 -
Nos. 11-1522, 11-2534, 12-1698, 11-2540
United States v. Logan, et al.

F.3d at 583 (internal citation omitted). “To prove that a conspiracy existed, the government need

not show a formal written agreement. A showing of tacit or mutual understanding among the parties

is sufficient.” United States v. Fisher, 648 F.3d 442, 450 (6th Cir. 2011) (citation and quotation

marks omitted).

The elements of drug trafficking conspiracy under 21 U.S.C. § 846 are: “(1) an agreement

to violate drug laws, (2) knowledge and intent to join the conspiracy, and (3) participation in the

conspiracy.” United States v. Welch, 97 F.3d 142, 148 (6th Cir. 1996). The government presented

sufficient evidence to convict Firempong of drug trafficking conspiracy.

First, Herman’s testimony supported the conclusion that Firempong was guilty. Herman

testified that Firempong told him that he was involved in the “cocaine business” and that a man

named Jackson, nicknamed “Canty,” introduced him to the drug trade. Herman testified that

Firempong told him that the reason he got involved with the drug trade was because he had a

gambling problem and enjoyed living a lavish lifestyle. Herman’s letter also indicated that

Firempong knew that the cocaine traveled to Michigan. Firempong argues that Herman’s testimony

is the only direct evidence of his involvement in the drug trafficking conspiracy, whereas other

witnesses denied his involvement in the drug trafficking conspiracy, and he is correct. However,

this is of no consequence. It is the jury’s role to assess witness credibility. The jury apparently

believed Herman in part or in total, as demonstrated by the fact that it convicted Firempong. At its

core, Firempong’s argument is that Herman is not to be believed, but that is not a determination we

are permitted to make. It is well-established that “this court may not retrospectively assess the

credibility of witnesses.” United States v. Ross, 703 F.3d 856, 883 (6th Cir. 2012).

- 16 -
Nos. 11-1522, 11-2534, 12-1698, 11-2540
United States v. Logan, et al.

Second, there was other evidence of Firempong’s involvement in the conspiracy. Firempong

and Charles Jackson, Sr. were close friends who attended basketball games together. The two threw

lavish parties together. Firempong knew that Charles Jackson, Sr. did not have a job and used

aliases. Despite this, Firempong made a $200,000 motorhome purchase for Charles Jackson, Sr.,

using Charles Jackson, Sr.’s money. Charles Jackson, Sr. testified that the money used for the

motorhome purchase was drug proceeds. Charles Jackson, Sr. testified that when he gave

Firempong the money, it was in cash in paper bags. Firempong never asked where the money came

from. The government’s financial analyst expert, Frank Scartozzi, testified that the money for the

motorhome, derived from drug trafficking, was funneled through various businesses either owned

or controlled by Firempong. Charles Jackson, Sr. testified that the motorhome was used in

furtherance of the cocaine conspiracy.

In short, the evidence presented at trial showed that Firempong regularly and frequently

associated with drug dealers, accepted drug proceeds, and laundered the drug proceeds through his

businesses to purchase the motorhome, which in turn was used to transport drugs and money in

furtherance of the cocaine conspiracy. This, coupled with Herman’s testimony, which the jury

apparently found credible, was sufficient to convict him. Firempong’s argument is without merit.

D.

Firempong next raises challenges to the district court’s calculations at sentencing as to the

amount of drugs attributable to Firempong and the amount of the forfeiture money judgment.

However, there was no error with regard to either.

- 17 -
Nos. 11-1522, 11-2534, 12-1698, 11-2540
United States v. Logan, et al.

1.

This court reviews a district court’s factual finding of a drug quantity for clear error. United

States v. Gibbs, 182 F.3d 408, 440 (6th Cir. 1999). “[This court] review[s] the district court’s

interpretation of the federal forfeiture laws de novo. But the district court’s findings of fact are

reviewed under a clearly erroneous standard and the question of whether those facts are sufficient

to constitute a proper criminal forfeiture is reviewed de novo.” United States v. O'Dell, 247 F.3d

655, 679 (6th Cir. 2001) (internal citations omitted).

2.

“If the exact amount of drugs is undetermined, ‘an estimate will suffice, but . . . a

preponderance of the evidence must support the estimate.’ United States v. Walton, 908 F.2d 1289,

1302 (6th Cir. 1990); United States v. Hernandez, 227 F.3d 686, 699 (6th Cir. 2000)

(‘Approximations are completely appropriate.’).” United States v. Jeross, 521 F.3d 562, 570 (6th

Cir. 2008). U.S.S.G. § 1B1.3(a)(1)(B) provides that a defendant’s offense level should be

determined based on, “in the case of jointly undertaken criminal activity[,] . . . all reasonably

foreseeable acts and omissions of others in furtherance of the jointly undertaken criminal activity[.]”

This court has held that “this subsection requires that the district court make particularized findings

with respect to both the scope of the defendant's agreement and the foreseeability of his

co-conspirators’ conduct before holding the defendant accountable for the scope of the entire

conspiracy.” United States v. Campbell, 279 F.3d 392, 400 (6th Cir. 2002).

In the instant case, there was a preponderance of evidence that Firempong was involved in

the drug trafficking conspiracy and that at least 150 kilograms of cocaine were foreseeable to him.

- 18 -
Nos. 11-1522, 11-2534, 12-1698, 11-2540
United States v. Logan, et al.

Firempong was good friends with Charles Jackson, Sr. and knew that Jackson, Sr. had no job or

apparent source of income from a legal job. Despite this knowledge, Firempong purchased a

motorhome for over $200,000 using cash given to him in paper bags by Charles Jackson, Sr.

Firempong then used his business interests to launder the money for that purchase. That motorhome

was driven off the lot by Charles Jackson, Sr., not Firempong, and ownership paperwork was in

Jackson’s name, not Firempong’s. Co-conspirator James Dylan Hayes testified that this motorhome

was used to transport at least 70 kilograms of cocaine to Michigan from California per month for

several years. In short, there was a preponderance of circumstantial evidence for the conclusion that

Firempong knew that Charles Jackson, Sr. was a drug dealer, and that Firempong knew about or was

directly involved in the drug trafficking conspiracy even without the testimony or letter of Scott

Herman, who testified that Firempong said he was directly involved in the drug conspiracy. In light

of the drug quantities transported in the motorhome, we conclude that the district court did not

clearly err by determining that over 150 kilograms of cocaine were foreseeable to Firempong.

3.

Firempong’s argument with regard to the district court’s forfeiture calculation presents us

with three distinct subissues. First, whether gross proceeds or net profits from the conspiracy should

be used to calculate the amount of the money judgment; second, whether joint and several liability

is proper for drug conspiracy proceeds; and third, whether a court should limit the amount of

Firempong’s money judgment to those proceeds foreseeable to him. As the district court noted,

these issues have not specifically been addressed by our court.

- 19 -
Nos. 11-1522, 11-2534, 12-1698, 11-2540
United States v. Logan, et al.

Firempong does not challenge that money judgments are proper in cases such as this. See

United States v. Abdelsalam, 311 F. App’x 832, 847 (6th Cir. 2009) (“A forfeiture action can take

the form of a money judgment . . . .”). Firempong does challenge, however, the district court’s

conclusion that gross proceeds should be used when calculating the amount of the money judgment.

The forfeiture statute, 21 U.S.C. § 853(a)(1), requires the forfeiture of “any property constituting,

or derived from, any proceeds the person obtained, directly or indirectly” as a result of the person’s

criminal conduct. However, the statute does not define “proceeds.” Although we have not weighed

in on this issue, other circuits have concluded that the term “proceeds” in the statute refers to gross

proceeds, not merely net profits. See, e.g., United States v. Olguin, 643 F.3d 384, 400 (5th Cir.

2011) (district court did not err by concluding that forfeiture should be calculated using “[gross]

proceeds-not-[net]-profits”); United States v. Heilman, 377 F. App’x 157, 211 (3d Cir. 2011) (same);

United States v. Bucci, 582 F.3d 108, 123 (1st Cir. 2009). Our sister circuits reached this

conclusion largely on the basis of examining the plain language of 21 U.S.C. § 853. For example,

the Bucci court noted that § 853 also uses the phrase “profits or proceeds,” and “[t]o interpret the

term ‘proceeds’ in the phrase ‘profits or other proceeds’ to mean profits would render the word

‘profits’ redundant.” Id. at 123. Consequently, the court concluded, the statute’s use of the phrase

“proceeds” must refer to gross proceeds. Id. at 124. The Heilman court engaged in the same

analysis and reached the same conclusion. Heilman, 377 F. App’x at 211. We find the reasoning

of these courts persuasive. Moreover, we note that Firempong baldly asserts that the district court

erred by relying on gross proceeds, yet makes no argument as to why; he cites no authority for his

position, nor does he extrapolate from his premise of error. Accordingly, in light of the fact that the

- 20 -
Nos. 11-1522, 11-2534, 12-1698, 11-2540
United States v. Logan, et al.

district court based its conclusion on persuasive existing case law and the fact that Firempong has

not offered any reason to depart from the district court’s determination, we conclude that the district

court was correct in its holding that gross proceeds should determine the baseline for calculating the

amount of the forfeiture.

Second, the district court concluded that joint and several liability applies to 21 U.S.C. § 853.

Again, the Sixth Circuit has not addressed this issue. However, it appears that the circuits that have

addressed the issue have concluded that the statute mandates joint and several liability among co-

conspirators for the proceeds of a drug conspiracy. See, e.g., United States v. Roberts, 660 F.3d 149,

165 (2d Cir. 2011), cert. denied, 132 S. Ct. 1640 (2012) (“In the case of a narcotics conspiracy, this

mandatory liability is joint and several among all conspirators.”); United States v. Van Nguyen, 602

F.3d 886, 904 (8th Cir. 2010) (a defendant “may be held jointly and severally liable for all of the

foreseeable proceeds of the conspiracy”); United States v. Pitt, 193 F.3d 751, 765 (3d Cir. 1999)

(“21 U.S.C. § 853(a)(1) imposes joint and several liability with respect to forfeiture.”). Firempong

does not challenge that joint and several liability applies to 21 U.S.C. § 853.

Third, although we have not ruled on the issue, as the district court noted, most circuits limit

the amount of proceeds attributable to a defendant to those reasonably foreseeable to that defendant.

See, e.g., Van Nguyen, 602 F.3d at 904; United States v. White, 116 F.3d 948, 951 (1st Cir. 1997);

United States v. Jarrett, 133 F.3d 519, 531 (7th Cir. 1998) (“Our circuit holds a conspirator

responsible for the amount of drugs that conspirator actually distributes, as well as for any quantity

distributed by the conspiracy that was reasonably foreseeable to the conspirator.”). But see United

States v. Browne, 505 F.3d 1229, 1279 (11th Cir. 2007) (co-conspirator can be held responsible even

- 21 -
Nos. 11-1522, 11-2534, 12-1698, 11-2540
United States v. Logan, et al.

for unforeseeable proceeds of conspiracy). Firempong does not dispute that foreseeability is the

proper test, but argues that the district court clearly erred when it concluded that over $40,000,000

in proceeds was foreseeable to him. We disagree. The analysis on this point is similar to the

analysis regarding drug quantity attributable to Firempong. The forfeiture amount was arrived at

based upon the district court’s determination that significant circumstantial evidence supported the

conclusion that Firempong knew that his friend Charles Jackson, Sr. was a drug dealer and used the

motorhome Firempong purchased in furtherance of the cocaine conspiracy. As the district court

noted, Firempong must have been “woefully blind not to know” that his friend was a drug dealer and

that when Charles Jackson, Sr. asked Firempong to purchase a motorhome for him, it would be used

in drug trafficking activities. The district court then calculated: (1) that based on Hayes’ testimony

that he would transport at least 70 kilograms of cocaine in the motorhome at least once per month;

(2) that these monthly trips happened for 32 months based on the timing of when the motorhome

was purchased to when the conspiracy ended; (3) that the per-kilogram price Jackson charged was

$18,000; and (4) that $40,000,000 was foreseeable to Firempong.1 We agree with the district court’s

foreseeability analysis and with its final calculation. The district court did not clearly err in its

forfeiture determination.

1
The total amount of the forfeiture money judgment was actually $40,574,951.20 and
included the amount of the drug proceeds foreseeable to Firempong, as well as the value of some
items recovered during a search of Firempong’s home.

- 22 -
Nos. 11-1522, 11-2534, 12-1698, 11-2540
United States v. Logan, et al.

E.

Finally, Firempong argues that his sentence for cocaine conspiracy was substantively

unreasonable. We disagree. Whether a sentence is substantively reasonable is reviewed for an

abuse of discretion. United States v. Conatser, 514 F.3d 508, 520 (6th Cir. 2008). However,

reasonableness is itself an appellate standard of review. Id. “A sentence may be considered

substantively unreasonable when the district court selects a sentence arbitrarily, bases the sentence

on impermissible factors, fails to consider relevant sentencing factors, or gives an unreasonable

amount of weight to any pertinent factor.” Id. “A properly calculated within-guidelines sentence

will be afforded a rebuttable presumption of reasonableness on appeal.” Id.

Firempong does not contest that the district court properly calculated the Guidelines nor that

his sentence falls within the Guidelines; in fact, Firempong concedes that his sentence was within

the Guidelines. Accordingly, his sentence is presumptively reasonable, and Firempong fails to

overcome that presumption.

Firempong argues there was no evidence that he was involved in drug trafficking and

therefore his sentence is presumptively unreasonable. However, Firempong ignores the evidence

developed at trial of his close friendship with Charles Jackson, Sr., a drug dealer, the fact that he

laundered money for the drug traffickers, and the testimony of Herman that Firempong said he was

a drug dealer himself.

Additionally, “[t]his court has held that although a sentence should reflect the considerations

listed in § 3553(a), there is no requirement that the district court engage in a ritualistic incantation

of the § 3553(a) factors it considers. However, the district court’s opinion should be sufficiently

- 23 -
Nos. 11-1522, 11-2534, 12-1698, 11-2540
United States v. Logan, et al.

detailed to reflect the considerations listed in § 3553(a).” United States v. McBride, 434 F.3d 470,

474 (6th Cir. 2006) (internal citation and quotation marks omitted). Here, the district court explicitly

considered the § 3553(a) factors when imposing Firempong’s sentence.

Firempong asserts that the sentence is unreasonable because of Firempong’s age, but the

district court noted that Firempong was 60 years old and concluded that he should not be treated any

differently because of his age. Firempong also argues that he has a minimal criminal history. The

district court concluded that, although it was “mystified” how a doctor of Firempong’s stature could

get involved in a conspiracy such as this one, “[t]he court concludes that the doctor knew precisely

what he was doing, and why he was doing it.” In short, the district court was quite thorough when

considering Firempong’s sentence, and Firempong has done little more than assert in a conclusory

manner that his sentence was substantively unreasonable. This alone distinguishes this case from

the one on which Firempong principally relies, United States v. Delgadillo, 318 F. App’x 380,

386–87 (6th Cir. 2008), where this court found a sentence substantively unreasonable because the

district judge “just briefly mentioned” § 3553(a) and gave no reason for “a 20-year sentence of a first

offender of a nonviolent crime.” By contrast, here, the district court gave ample reasons for its

sentencing decision, including by applying the § 3553(a) factors. The sentence is not unreasonable

simply because Firempong is dissatisfied with it.

IV.

We now turn to issues raised exclusively by McRae. McRae raises issues regarding the

denial of his new trial motion, ineffective assistance of counsel, and the admission of evidence.

Upon review, we conclude that each of his arguments is meritless.

- 24 -
Nos. 11-1522, 11-2534, 12-1698, 11-2540
United States v. Logan, et al.

A.

McRae first argues that the district court erred when it denied his motion for a new trial and

that we should reach the merits of his ineffective assistance of counsel claim on direct appeal. We

disagree.

This court reviews for an abuse of discretion the district court’s decision whether to grant

a new trial. United States v. Pierce, 62 F.3d 818, 823 (6th Cir. 1995). “An abuse of discretion

occurs when the lower court relies on clearly erroneous findings of fact, or when it improperly

applies the law or uses an erroneous legal standard. An abuse of discretion may also be found when

the reviewing court is firmly convinced that a mistake has been made, i.e., when we are left with a

definite and firm conviction that the trial court committed a clear error of judgment.” United States

v. True, 250 F.3d 410, 422 (6th Cir. 2001) (internal citation and quotation marks omitted).

The district court noted that the reason McRae moved for a new trial was so that he could

obtain an evidentiary hearing to pursue his claim for ineffective assistance of counsel. However,

the only factual basis for ineffective assistance in the new trial motion was that McRae’s trial

counsel, Marvin Barnett, had attempted to extort money from McRae—according to McRae, Barnett

declined to file a motion for mistrial unless McRae paid him an additional $50,000. The factual

basis for McRae’s claim lies outside the existing record. Indeed, there is virtually no evidence in

the existing record regarding this claim. McRae’s motion for a new trial failed to present any

evidence beyond an unsigned affidavit bearing McRae’s name and an affidavit from McRae’s wife

alleging that Barnett had attempted to extort McRae. This court has recognized that district courts

are entitled to great deference when reviewing motions for new trials, United States v. Breinig, 70

- 25 -
Nos. 11-1522, 11-2534, 12-1698, 11-2540
United States v. Logan, et al.

F.3d 851, 851 (6th Cir. 1995), and that new trial motions are “disfavored and should be granted with

caution.” United States v. Willis, 257 F.3d 636, 645 (6th Cir. 2001). Moreover, in most cases,

ineffective assistance of counsel claims are properly brought in a collateral proceeding under 28

U.S.C. § 2255 rather than on direct appeal. See, e.g., United States v. McCarty, 628 F.3d 284, 295

(6th Cir. 2010). In light of the paucity of evidence regarding the alleged extortion, we are not left

with a “definite and firm conviction that the trial court committed a clear error of judgment” when

it concluded that McRae’s ineffective assistance claim should be brought under § 2255, and not on

direct review, and denied his motion for a new trial. True, 250 F.3d 410, 422.

For similar reasons, we decline to address the merits of McRae’s ineffective assistance of

counsel claim. “Except in rare circumstances,” this court does not review ineffective assistance of

counsel claims on direct appeal because “claims of ineffective assistance of counsel must be

addressed in the first instance by a district court pursuant to a claim under 28 U.S.C. § 2255.”

United States v. Gunter, 620 F.3d 642, 643 n.1 (6th Cir. 2010). Direct appeal is only an appropriate

forum for resolving such claims where the claim “either depend[s] entirely upon facts within the

record or that present[s] purely legal questions.” Angel, 355 F.3d at 469. However, McRae’s

ineffective assistance of counsel claim is based on two factual premises not contained in the trial

record: Barnett’s alleged attempt at extorting McRae, and Barnett’s alleged threats to witness

Tommie Hodges. As explained, there is insufficient evidence on the record for this court to review

a claim of ineffective assistance of counsel based on Barnett’s alleged extortion. Although there is

some evidence in the record regarding Barnett’s alleged threats to Hodges, there is insufficient

evidence for this court to review McRae’s ineffective assistance claim on that basis. The evidence

- 26 -
Nos. 11-1522, 11-2534, 12-1698, 11-2540
United States v. Logan, et al.

of the alleged threats already in the record primarily consists of the transcript of an ex parte

conference before a different district judge than the one trying McRae’s case, at which neither

Barnett nor a representative of the government was present. Although the district court later

reviewed the transcript of the ex parte conference with all parties present and gave Barnett an

opportunity to explain himself, the purpose of that proceeding was not to permit McRae to develop

a record with which to advance an ineffective assistance claim. Accordingly, any claim predicated

on Barnett’s alleged witness intimidation would benefit from further factual development in a

collateral proceeding, and we decline to reach the merits of McRae’s ineffective assistance of

counsel claim on that basis.

B.

At trial, the government was permitted to introduce evidence that McRae’s home burned

down within a day of the police executing a search warrant at the home. McRae argues that this

evidence implied that he was the arsonist and therefore amounted to improper character evidence

under Federal Rule of Evidence 404(b). We disagree.

A district court’s decision whether to admit or exclude evidence is reviewed for an abuse of

discretion. Lopez-Medina, 461 F.3d at 741. The admission of this evidence was objected to at trial

by McRae’s counsel—accordingly, it is preserved for our review. Preserved, non-constitutional

errors, such as those arising from the admission of evidence, are harmless and not grounds for

reversal unless the admission of the evidence materially affected the verdict. Davis, 577 F.3d at 670.

McRae’s claim is meritless. Even if the testimony regarding the specific timing of the fire

(within 24 hours of the search warrant’s execution) could be construed as Rule 404(b) evidence, and

- 27 -
Nos. 11-1522, 11-2534, 12-1698, 11-2540
United States v. Logan, et al.

even assuming arguendo that the testimony was erroneously admitted, McRae has failed to establish

that its admission “materially affected the verdict” or affected the verdict at all. Davis, 577 F.3d at

670. McRae makes no argument whatsoever regarding harmless error in his appellate brief. He

simply asserts that the testimony was admitted in error, ignoring entirely that error is not reversible

if it is harmless.

C.

At trial, Hodges invoked his Fifth Amendment privilege against self-incrimination and

refused to testify. Consequently, on McRae’s counsel’s motion, the district court instructed the jury

to disregard Hodges’ testimony in its entirety. This occurred the day after Hodges testified. McRae

now argues that the district court erred by waiting a day to strike Hodges’ testimony from the record,

rather than striking it immediately. We disagree.

McRae’s counsel failed to object to the timing of the limiting instruction

below—accordingly, our review is for plain error. United States v. Wallace, 597 F.3d 794, 798 (6th

Cir. 2010). This court has held that “[a] delayed limiting instruction is no basis for reversal.”

United States v. Fraser, 448 F.3d 833, 843 n.4 (6th Cir. 2006). Accordingly, McRae has failed to

establish error, let alone plain error.

V.

For the foregoing reasons, we affirm defendants’ convictions and sentences.

- 28 -