United States v. Stone

NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
File Name: 07a0155n.06
Filed: February 26, 2007

No. 05-5432

UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT

UNITED STATES OF AMERICA, )
)
Plaintiff-Appellant, )
)
v. ) ON APPEAL FROM THE UNITED
) STATES DISTRICT COURT FOR THE
MACK STONE, ) MIDDLE DISTRICT OF TENNESSEE
)
Defendant-Appellee. )
)
)
)

Before: SILER, GIBBONS, and ROGERS, Circuit Judges

JULIA SMITH GIBBONS, Circuit Judge. A jury empaneled in the United States District

Court for the Middle District of Tennessee convicted defendant-appellant, Mack Stone, of one count

of participating in a drug distribution conspiracy in violation of 21 U.S.C. §§ 841 and 846. The

district court sentenced Stone, who had two prior felony drug convictions, to the statutorily-

mandated term of life imprisonment. Stone appeals his conviction and sentence on various

constitutional and procedural grounds.

For the reasons below, we affirm.

I.

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 On June 24, 2004, a criminal complaint was filed against defendant-appellant, Mack Stone,

alleging that Stone violated 21 U.S.C. § 846 by participating in a conspiracy to distribute crack

cocaine. That same day, Drug Enforcement Administration (“DEA”) special agent Ron Riddle

arrested Stone. On August 25, 2004, a grand jury empaneled in the Middle District of Tennessee

returned an indictment charging Stone with conspiring to knowingly and intentionally distribute fifty

grams or more of a mixture or substance containing a detectable amount of cocaine base, or crack

cocaine, in violation of 21 U.S.C. §846. Stone elected to proceed to trial on the charge against him.

The evidence presented at Stone’s trial identified a house located at 1900 Cephas in

Nashville, Tennessee as a distribution point in a narcotics operation. With the assistance of

confidential informants and cooperating coconspirators, law enforcement officials engaged in a

series of controlled buys out of 1900 Cephas and, upon executing a search warrant on the house on

February 25, 2004, discovered drugs, firearms, cash, and numerous individuals, including Stone.

The government produced various coconspirators who identified Stone as a leader of the operation

at 1900 Cephas and testified to assisting Stone in the preparation of crack cocaine for distribution,

securing the house at 1900 Cephas, and supplying narcotics to Stone for sale.

On November 5, 2004, the jury returned a verdict of guilty, finding that Stone conspired to

distribute fifty grams or more of crack cocaine. On February 24, 2005, the court sentenced Stone

to life in prison, the mandatory term of imprisonment provided under 21 U.S.C. § 841 for individuals

with two or more prior drug felony convictions. In addition, the court directed Stone to pay a fine

of $25,000, the minimum amount recommended under the Guidelines, and a $100.00 special

assessment. Stone appealed.

II.

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 Stone raises a series of claims on appeal.

A.

Stone challenges the district court’s refusal to permit his attorney to pursue additional

questioning of the venire panel concerning the principles of the presumption of innocence and guilt

beyond a reasonable doubt.

Rule 24 of the Federal Rules of Criminal Procedure, which governs voir dire, provides, in

pertinent part:

(a) Examination
(1) In General. The court may examine prospective jurors or may permit the
attorneys for the parties to do so.
(2) Court Examination. If the court examines the jurors, it must permit the
attorneys for the parties to:
(A) ask further questions that the court considers proper; or
(B) submit further questions that the court may ask if it considers
them proper.

Fed. R. Crim. P. 24(a)(1)-(2). Rule 24 “invests wide discretion in trial judges in determining the

questions to be asked of veniremen, and the prevailing rule is that the court’s determination about

the questions to be put to the jury will not be disturbed without a clear showing of abuse of

discretion. United States v. Blount, 479 F.2d 650, 651 (6th Cir. 1973).

Before trial began, the district court twice discussed the appropriate burden of proof and the

presumption of innocence with the venire panel:

Q: Those of you who served as a juror in a civil case, the burden in a criminal case
such as this is that the government must prove a defendant’s guilt beyond a
reasonable doubt. There is a very high and strict standard of proof. Does everybody
who sat as a juror in a civil case understand that in this case the burden of proof on
the government is much higher than it was on the plaintiff in a civil case?

....

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 Q: In this case, the defendant is presumed innocent until such time, if ever, the
government proves his guilt beyond a reasonable doubt under the Federal Rules of
Evidence. And you have to treat the defendant at this very moment [as if] he is
innocent. Can every member of the jury panel assure me that, notwithstanding the
charge, that this man stands innocent? Is there any doubt about that or is unable to
do so?

No member of the panel expressed a lack of understanding or unwillingness to act in accordance

with these principles. Counsel for the government questioned the jury further:

Now, the Court told you already what the burden of proof is, which is beyond a
reasonable doubt, which is the same in any criminal case, whether it’s a DUI, a
murder, or a robbery, or a drug deal. Is there anybody here that has some sort of
problem with that standard, whether it’s too low a standard or too high a standard,
either way? Fair enough.

When defense counsel attempted to engage the jury on the issues further, the court intervened,

directing him to “move on.” Defense counsel objected, and the district court, before recessing the

panel, reiterated its previous statements:

Ladies and gentlemen of the jury, the burden of proof in this case is beyond a
reasonable doubt, as I mentioned to you earlier. In summary, beyond a reasonable
doubt means that the government is not to required to present such proof as to
remove all doubt, but the government must present such proof as to establish the
facts and such degree of proof that you would rely on that proof in deciding the most
serious matters of your personal life. Is there anybody who has any difficulty
understanding that? If so, please raise your hand.

Receiving no response, the court recessed. On appeal, Stone argues the district abused its discretion

in refusing his attorney the opportunity to further explore the subjects of the presumption of

innocence and burden of proof with the jury.

The record is clear that both the trial court and an attorney for the United States engaged the

panel on the issues of the presumption of innocence afforded a criminal defendant and the burden

imposed on the government to establish guilt beyond a reasonable doubt. Stone fails to make a

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persuasive argument that, given the opportunity, his attorney would have addressed the topic in a

manner so novel that it might have elicited a response from the panel forming the basis for a juror

challenge. See Mu’Min v. Virginia, 500 U.S. 415, 431 (1991) (“Voir dire examination serves the

dual purposes of enabling the court to select an impartial jury and assisting counsel in exercising

peremptory challenges.”). Moreover, Stone points to no legal authority for the proposition that a

district court, having adequately addressed an issue in its questioning of the jury, must then permit

counsel to engage in a duplicative recitation of the same questions. Indeed, such a rule would be

contrary to the language of Rule 24, which affords the district court substantial discretion in

administering voir dire. Id. at 424 (“[T]he trial court retains great latitude in deciding what

questions should be asked on voir dire.”).

The case on which Stone relies, United States v. Hill, 738 F.2d 152 (6th Cir. 1984), does not

support his claim. There, the district court refused to pose questions to prospective jurors regarding

reasonable doubt and the presumption of innocence and did not allow counsel to do so. Id. at 153.

The court of appeals deemed this refusal erroneous, citing the Sixth’s Circuit’s prior holdings that

a “fairly phrased question” concerning the presumption of innocence “must, if requested, be

submitted by the trial court as a fundamental part of voir dire.” Id. Hill is not analogous to the

instant case. In Hill, the trial court both neglected to conduct its own inquiry and refused defense

counsel the opportunity to do so. The district court presiding over Stone’s trial discussed the

presumption of innocence exhaustively during the course of its voir dire of the panel members and

revisited the issue on defense counsel’s objection.

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 We conclude that the district court did not abuse its discretion in refusing to permit defense

counsel to ask further questions on the presumption of innocence, and we reject Stone’s claim on

that ground.

B.

Stone challenges the district court’s handling of the testimony of Anthony Corley, a witness

called by the government who had previously indicated his intent to invoke his Fifth Amendment

right not to incriminate himself if called to testify.

On the first day of trial, outside of the presence of the jury, the United States informed the

court that it intended to demonstrate that the lease agreement governing 1900 Cephas was

fraudulently executed as part of an attempt to disguise Stone’s connection to the house. The

government sought to call Anthony Corley, the operating manager for AEC Investments

Incorporated, the owner of 1900 Cephas, as custodian of all documents for that entity. The

government had previously served Corley with two separate subpoenas, one directed to him

personally and one directed to him as custodian of records for AEC. Corley’s attorney, Jim Price,

advised the court that Corley was the target of a money laundering investigation and intended to

assert his Fifth Amendment right against self-incrimination if called to testify. As to the personal

subpoena served on Corley, the district court determined that any information sought by the

government would fall within the scope of information material to the money laundering

investigation. As to Corley’s obligations as custodian of the records of AEC Investments, it ruled

that the government could pose questions that went to authenticating the lease documents and that

Price, Corley’s attorney, would be permitted to sit next to Corley during his testimony. Defense

counsel objected to permitting the jury to hear Corley invoke his Fifth Amendment right on the

6
ground that it would prejudice Stone. During his testimony, Corley exercised his Fifth Amendment

right not to answer the government’s questions with noticeable frequency, approximately thirty

times. The district court twice instructed the jury not to draw any adverse inferences against Stone

based upon Corley’s assertion of his Fifth Amendment right.

Stone challenges the district court’s decision to permit questioning of Anthony Corley on two

grounds, arguing that: (1) the government engaged in prosecutorial misconduct by attempting to

bolster its case through the prejudicial impact of Corley’s repeated invocation of the Fifth

Amendment and (2) his Sixth Amendment right to confront the witnesses assembled against him was

violated by Corley’s Fifth Amendment assertion.

1.

Because Stone’s attorney failed to object to the prosecutor’s examination of Corley at trial,

we evaluate his claim of prosecutorial misconduct utilizing the plain error standard. United States

v. Blood, 435 F.3d 612, 627-28 (6th Cir. 2006). To establish plain error, a defendant must

demonstrate: “(1) that an error occurred in the district court; (2) that the error was plain, i.e., obvious

or clear; (3) that the error affected defendant’s substantial rights; and (4) that this adverse impact

seriously affected the fairness, integrity or public reputation of the judicial proceedings.” United

States v. Abboud, 438 F.3d 554, 583 (6th Cir. 2006).

In the Sixth Circuit, a court’s review of a prosecutorial misconduct claim proceeds in two

stages: the court first considers whether a prosecutor’s remarks were improper and, second,

determines whether the remarks were sufficiently flagrant to warrant reversal. United States v.

Jamieson, 427 F.3d 394, 413 (6th Cir. 2005). In making this second determination, the court looks

to four factors: “(1) whether the remarks tended to mislead the jury or to prejudice the accused; (2)

7
whether they were isolated or extensive; (3) whether they were deliberately or accidentally placed

before the jury; and (4) the strength of the evidence against the accused.” Blood, 435 F.3d at 628.

All of the factors are relevant, but the second factor is particularly significant. United States v.

Owens, 426 F.3d 800, 807 (6th Cir. 2005). “In examining prosecutorial misconduct claims, it is

necessary to view the conduct at issue within the context of the trial as a whole.” United States v.

Beverly, 369 F.3d 516, 543 (6th Cir. 2004).

The Sixth Circuit has endorsed the use of a witness who has indicated in advance that he will

refuse to answer certain questions on Fifth Amendment grounds where refusing to permit the

testimony would seriously prejudice the government’s case. United States v. Vandetti, 623 F.2d

1144, 1147 (6th Cir. 1980). The court explained in Vandetti:

Government counsel need not refrain from calling a witness whose attorney appears
in court and advises court and counsel that the witness will claim his privilege and
will not testify. However, to call such a witness, counsel must have an honest belief
that the witness has information which is pertinent to the issue in the case and which
is admissible under applicable rules of evidence, if no privilege were claimed.

Id. (internal quotation marks omitted). Stone does not contest the government’s claim that Corley’s

testimony was necessary to its case or challenge the admissibility of Corley’s testimony. Instead,

he offers the bald assertion that the government questioned Corley on topics beyond his knowledge

as custodian of records for AEC Investments in a “conscious and flagrant attempt [by the

government] to build its case out of inferences arising from the use of the testimonial privilege.”

Namet v. United States, 373 U.S. 179, 186 (1963); see also United States v. Clark, 988 F.2d 1459,

1464 (6th Cir. 1993). The record provides no support for this claim.

Assuming, arguendo, that counsel for the government erred in its examination of Corley, the

conduct at issue was not sufficiently flagrant to warrant reversal. Any prejudice to Stone was limited

8
to a discrete portion of the trial, involving only one witness whose testimony never directly

implicated Stone in the conspiracy with which he was charged. Moreover, there was no allegation

that Stone was somehow involved in any alleged wrongdoing by Corley. Any negative inferences

drawn as to Corley’s criminality would not necessarily be imputed to Stone. Id. (“While repeated

assertions of the Fifth Amendment privilege may create an undue inference of guilt if elicited during

the cross-examination of a criminal defendant, the witnesses were not on trial and any adverse

inference had no relation to the question of whether [the defendant] killed [the victim].”). Moreover,

the trial court twice instructed the jury not to draw inferences of any kind from Corley’s decision not

to answer particular questions, and it is appropriate to assume the jury complied with that direction.

See United States v. Foster, 376 F.3d 577, 592 (6th Cir. 2004) (“A crucial assumption underlying

th[e] system [of trial by jury] is that juries will follow the instructions given them by the trial judge.”)

(internal quotation marks omitted) (alterations in original). Given these circumstances, any claim

by Stone that the government’s actions produced an error that was obvious and clear is unavailing.

2.

Stone claims, in addition, that he was denied the right to confront the witnesses against him

by virtue of Corley’s invocation of his Fifth Amendment right not to answer questions. Stone’s

Sixth Amendment claim presents a legal question we review de novo. United States v. Tarwater,

308 F.3d 494, 517 (6th Cir. 2002).

The Sixth Amendment’s confrontation clause “bestows upon the criminal defendant the right

to confront the witnesses against him, and the opportunity to cross-examine such witnesses.”

Stewart v. Wolfenbarger, 468 F.3d 338, 347 (6th Cir. 2006). The Sixth Circuit has recognized the

9
threat posed by the government’s use of a witness who takes the stand only to invoke his Fifth

Amendment right not to answer questions. See Vandetti, 623 F.2d at 1148.

In this case, however, Stone’s counsel made no attempt to cross-examine Corley. Therefore,

it is impossible to ascertain whether Stone was, in fact, effectively precluded from cross-examining

Corley concerning his direct examination testimony. Although Corley refused to answer a

substantial number of the questions posed by the United States on direct examination, he offered

responses to several of those questions. Stone was, therefore, not confronted with a situation in

which any attempt at cross-examination would have been futile. This court has recognized that the

confrontation clause’s “predominant objective – perhaps its only objective – is preventing the

admission of testimonial statements against criminal defendants who never had an opportunity to

cross examine the declarant.” United States v. Franklin, 415 F.3d 537, 545 (6th Cir. 2005) (citing

Crawford v. Washington, 541 U.S. 36, 69-70 (2004)). Here, Stone has failed to demonstrate that the

district court’s decision undermined this objective.

C.

Stone also alleges error by the district court and the government during the recall testimony

of Agent Ron Riddle.

At the government’s request, the district court permitted the recall of DEA Agent Riddle to

testify as to Stone’s residence at 1900 Cephas. The court advised the jury that it permitted the recall

“for a very limited purpose,” that is, to allow the admission of Riddle’s testimony as to his

knowledge of Stone’s residence. On recall, the United States engaged Riddle in a discussion

concerning the contents of a personal history report completed following Stone’s arrest. Agent

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Riddle testified that on the personal history report Stone identified 1900 Cephas as his residence.

At issue is Agent Riddle’s testimony immediately following his comments on Stone’s residence:

Q: What did the defendant tell you was his occupation?
A: On here, it’s listed as drug dealer.
Q: Is that the block 30 [of the form] we referred to?
A: Yes, sir; it is.
MR. KOSHY [counsel for the United States]: We move that as Exhibit Number 14.
THE COURT: Without objection, it will be entered.

Defense counsel objected, asserting that the government should have provided the defense with the

personal history report as part of pretrial discovery and that Agent Riddle’s comment had been

irreparably prejudicial. Counsel for the United States, when confronted by the court concerning his

actions, withdrew his motion to admit the report into evidence. At defense counsel’s request, the

court issued a curative instruction, and trial proceeded.

Stone raises two issues on appeal. First, he claims that the government failed to supply his

attorney with copies of the personal history report prior to the discovery deadline in violation of Fed.

R. Crim. P. 16(a)(1)(A). Second, he claims the government attorney committed prosecutorial

misconduct in exceeding the scope of the recall.

1.

This court reviews the district court’s Rule 16 decision for an abuse of discretion. United

States v. Clark, 385 F.3d 609, 619 (6th Cir. 2004).

Rule 16 requires the government to disclose the substance of “any relevant oral statement

made by the defendant, before or after arrest, in response to interrogation by a person the defendant

knew was a government agent if the government intends to use the statement at trial.” Fed. R. Crim.

P. 16(a)(1)(A). This provision, on which Stone relies, explicitly covers only information that a

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defendant provides in response to interrogation. Here, the information appearing in the personal

history report constituted standard identification information provided following arrest. Such

“routine biographical information elicited during the booking process does not constitute

interrogation under a Fifth Amendment Miranda-rights analysis.” United States v. Godinez, 114

F.3d 583, 589 (6th Cir. 1997). Thus, the government was not obligated under Rule 16(a)(1)(A) to

provide the personal history report to Stone prior to trial. See id. at 588-89 (concluding that the

government had no obligation to provide pretrial a personal history questionnaire taken by a United

States Marshal during the booking of defendant because the document contained routine

identification information not provided in response to “questioning designed to elicit incriminating

information from a defendant”).

2.

Because defense counsel objected at trial to the government’s alleged misconduct during the

recall of Agent Riddle, his prosecutorial misconduct claim is reviewed de novo. United States v.

Owens, 426 F.3d at 806.

“An improper question by government counsel may constitute prosecutorial misconduct.”

United States v. One Star, 465 F.3d 828, 832 (8th Cir. 2006). As the trial court acknowledged, the

government exceeded the boundaries of the recall, venturing into a revelation of Stone’s claimed

occupation. Given the court’s clear explanation of the purposes for Agent’s Riddle’s recall

testimony, this was misconduct. Considered in the context of the entire proceeding, however, Agent

Riddle’s statement was not so prejudicial as to deprive Stone of a fair trial. The district court

provided, at defense counsel’s request, a curative instruction directing the jury to consider Agent

12
Riddle’s recall testimony only to the extent it addressed the question of Stone’s residence.1

Moreover, the government withdrew its motion to admit the personal history report into evidence.

Finally, the question stood amidst a large body of incriminating evidence furnished throughout the

course of the trial. Thus, it cannot fairly be said that any misdeed by the prosecution was “so

pronounced and persistent” that it permeated the entire trial. United States v. Crayton, 357 F.3d 560,

573 (6th Cir. 2004).

D.

Stone challenges under Rule 16 the district court’s decision to permit the introduction of

materials transmitted by the government after the discovery deadline. The panel reviews the district

court’s decision under Fed. R. Crim. P. 16 for an abuse of discretion. United States v. Quinn, 230

F.3d 862, 866 (6th Cir. 2000).

In a September 22, 2004, order, the district court established an October 18, 2004, deadline

for discovery to be exchanged between the parties. Prior to trial, Stone filed a series of motions in

limine seeking suppression of discovery materials transmitted by the government following the

expiration of the discovery deadline, including: (1) a lease agreement relating to the 1900 Cephas

house; (2) handwriting samples taken of defendant; (3) a series of police reports; and (4) hospital

records relating to the hospital stay of Norman Minter. The court denied Stone’s motions. Stone

1
Notably, Stone’s trial counsel requested no more than a curative instruction and the
opportunity to examine Agent Riddle further. The district court complied with that request and
provided the promised instruction. Stone’s attorney did not request a mistrial or any other form of
relief before the district court, and even on appeal he does not claim that the district court was
obligated to declare a mistrial sua sponte. Cf. Dotson v. Scotty’s Contracting, Inc., 86 F.3d 613, 618
(6th Cir. 1996) (“[I]f the plaintiff had wanted the trial court to take some action, she should have
asked the court to do so.”).

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claims that the late transmission of the documents by the government constituted a violation of Fed.

R. Crim. P. 16.

Rule 16 requires the disclosure by the government, on defendant’s request, of certain

documents and objects if those items are “within the government’s possession, custody, or control”

and material to a defendant’s defense, intended for presentation during the government’s case-in-

chief, or obtained from or belonging to defendant. Fed. R. Crim. P. 16(a)(1)(E). Even if the

government violated Rule 16 in failing to transmit the materials in question before the discovery

deadline, Stone has failed to demonstrate that the district court abused its discretion when it refused

to grant Stone’s request for exclusion.

Rule 16(d)(2) identifies a range of remedies for discovery violations in criminal proceedings.

Fed. R. Crim. P. 16(d)(2) (permitting order of discovery or inspection; grant of a continuance;

suppression; or any other order “that is just under the circumstances” when Rule 16 is violated).

Exclusion of evidence is the most serious and least favored of those remedies. See United States v.

Ganier, 468 F.3d 920, 927 (6th Cir. 2006) (observing that district courts should adopt the “least

severe sanction necessary doctrine” and utilize suppression as a “remedial device” limited to

appropriate circumstances) (quoting United States v. Maples, 60 F.3d 244, 247-48 (6th Cir. 1995));

Maples, 60 F.3d at 247 (“[S]uppression of evidence must be viewed as an undesirable remedy

reserved for cases of incurable prejudice or bad faith conduct demanding punishment by the court.”).

This court has detailed a series of factors to be considered in determining whether suppression is an

appropriate response to a Rule 16 violation: (1) the reasons for any delay in producing materials,

including ill intent or bad faith; (2) the degree of prejudice, if any, to the defendant; and (3) whether

14
any prejudice may be cured with a less severe course of action like a continuance or a recess.

Maples, 60 F.3d at 247.

Here, all of the factors identified in Maples point toward affirmance of the district court’s

decision. First, there is no evidence that the government acted in bad faith. Ganier, 468 F.3d at 927

(reversing district court’s exclusion of expert testimony pursuant to Rule 16 where, among other

things, there was no evidence of bad faith conduct by the United States). Indeed, as soon as the

government received the materials at issue, it transmitted those materials to the defense.

Additionally, Stone does not argue that he was prejudiced by the delayed conveyance of the

materials. See Quinn, 230 F.3d at 866 (concluding, in light of defendant’s failure to demonstrate

prejudice, that district court did not abuse its discretion in permitting testimony of undisclosed expert

testimony). Finally, Stone sought the most severe remedy available for a violation of Rule 16 and

expressly declined to have the trial continued in order to provide his counsel with additional time

to review any discovery untimely filed. Having refused this remedy Stone “is not in a position to

fault the court for denying the motion to exclude the [disputed evidence].” United States v. Bartle,

835 F.2d 646, 650 (6th Cir. 1987).

E.

Stone challenges the district court’s admission of testimony concerning his alleged

involvement in a murder, an assault on a coconspirator, and the presence and use of firearms at 1900

Cephas.

“Evidentiary rulings are reviewed under the abuse-of-discretion standard.” United States v.

Seymour, 468 F.3d 378, 386 (6th Cir. 2006). A reviewing court “takes the maximal view of the

probative effect of the evidence and a minimal view of its unfairly prejudicial effect, and will hold

15
that the district court erred only if the latter outweighs the former.” United States v. Foster, 376 F.3d

577, 592 (6th Cir. 2004). “Broad discretion is given to district courts in determinations of

admissibility based on considerations of relevance and prejudice, and those decisions will not be

lightly overruled.” United States v. Jackson-Randolph, 282 F.3d 369, 376 (6th Cir. 2002). Rule 402

of the Federal Rules of Evidence permits the admission of “[a]ll relevant evidence.” Rule 403 acts

as a limit on Rule 402, preventing the introduction of relevant evidence the probative value of which

is “substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading

the jury, or by considerations of undue delay, waste of time, or needless presentation of cumulative

evidence.” Fed. R. Evid. 403. Stone challenges the admission of three pieces of evidence under

Rules 402 and 403: (1) his alleged participation in the murder of Chris Gooch; (2) his alleged assault

on Norman Minter; and (3) evidence concerning the guns found within 1900 Cephas. As to each

piece of evidence, he argues that the material was irrelevant to the charges against him or, in the

alternative, of a sufficiently prejudicial nature to warrant exclusion under Rule 403.

1.

Prior to trial, Stone filed a motion in limine seeking to exclude evidence relating to the

murder of Chris Gooch. At the November 1, 2004, pretrial hearing before the district court, the

United States represented that it did not intend to offer evidence concerning the Gooch murder

because that murder was the subject of a pending investigation. At trial, however, during the course

of defense counsel’s cross-examination of Nathan Morgan, an individual who testified to conducting

drug-related transactions with Stone, counsel asked Morgan to read the contents of a letter sent by

Morgan to Stone following Stone’s arrest. That letter expressed Morgan’s concerns that Stone might

believe that Morgan “turn[ed] state” on him. In the letter, Morgan assured Stone that he had never

16
been around Stone and had never done business or “hung with” Stone and, thus, had nothing to tell.

Following the introduction of the letter, in a conference outside of the presence of the jury,

counsel for the government informed the court that certain portions of Morgan’s letter actually

referred to Morgan’s knowledge of Stone’s alleged participation in the murder of Chris Gooch.

Government counsel explained that he intended to elicit testimony from Morgan on redirect

examination concerning the Gooch murder in order to provide the jury with information about the

circumstances surrounding the writing of the letter. Counsel explained that he “had no intent of

bringing any of that up,” but such testimony was necessary to understand the letter’s contents

properly. The district court agreed that the defense had opened the door to such evidence and

overruled defense counsel’s objections. On redirect, Morgan testified that Stone had made

admissions to him concerning a murder in which Stone was involved. Morgan also testified that

certain portions of the letter– specifically the letter’s inquiry, “how can I turn state on you when I

never was around you[?]” – referred to Stone’s belief that Morgan would relay information to the

police concerning that murder. On appeal, Stone argues that the testimony concerning the Gooch

murder was irrelevant or, alternatively, that its probative value was substantially outweighed by the

danger of unfair prejudice.

While the murder of Chris Gooch may have been irrelevant prior to the introduction of the

letter, defense counsel raised the subject of Morgan’s motivation for writing the letter and the

meaning of its contents when he introduced the letter into evidence. “When one party has ‘opened

the door’ on an issue, by eliciting prejudicial or inadmissible testimony, an opponent, in the court’s

discretion, [may] introduce evidence on the same issue to rebut any false impression that might have

17
resulted from the earlier admission.” United States v. Segines, 17 F.3d 847, 856 (6th Cir. 1994)

(internal quotation marks omitted) (alteration in original). Although the evidence at issue is

undeniably prejudicial, the district court did not abuse its discretion in allowing its admission. The

defense introduced the letter in an apparent effort to undercut Morgan’s claim that he had firsthand

knowledge of Stone’s drug distribution operation, and thus, it was defense counsel who raised the

question of the accurate meaning of the letter. Id. (“[E]vidence whose probative value might not

be thought to outweigh its prejudicial effect if offered on direct examination may well be admitted

during redirect examination for the purposes [of clarifying a matter raised in a previous

examination].”). In addition, the prejudicial impact of Morgan’s statements was mitigated by the

court’s caution to the jury that Morgan’s testimony was offered “to explain the circumstances

concerning th[e] letter that was raised on cross examination.” Given defense counsel’s role in

prompting a discussion of the Gooch murder, it was not an abuse of discretion for the district court

to admit Morgan’s testimony regarding his intended meaning in the letter.

2.

Stone also challenges the district court’s admission of evidence relating to an alleged assault

by Stone on Norman Minter, a coconspirator, and Minter’s hospital records. The government sought

to prove at trial that Stone assaulted Minter following Minter’s sale of a firearm, an AK-47 or

“chopper,” producing serious injuries. James Alan Jennings, another coconspirator, testified that

Stone told him about the assault on Minter, explaining that Stone hit Minter “across the head with

a bottle or a plank or something.” Stone informed Jennings that Minter had sold Stone’s gun without

Stone’s permission, prompting the attack. Michael Wallace, who admitted to participating in drug

18
transactions with Stone, testified that Stone informed him that Minter was hospitalized “on the AK,”

or chopper, but had not told Wallace about the severity of any injuries sustained by Minter.

Stone complains that the evidence relating to Minter’s attack was irrelevant or, alternatively,

sufficiently prejudicial to warrant exclusion under Rule 403. The district court disagreed with

Stone’s position on the relevance of Minter’s assault, noting that although the chopper was not

admitted into evidence, Morgan provided testimony relating to Stone’s possession of the chopper.

The court concluded: “[T]here is sufficient proof for the government’s theory that these guns were

part of the operation of the drug house. And I think the proof that he got angry when it was sold and

hit somebody underscores an [sic] importance of why he wanted it.”

In United States v. Noe, 411 F.3d 878 (8th Cir. 2005), the Eighth Circuit considered a similar

evidentiary claim by a criminal defendant charged with conspiring to distribute methamphetamine

and marijuana. The government sought to introduce evidence that the defendant assaulted an

individual who took drugs without paying for them. Id. at 887. The defendant moved to exclude

the evidence on the ground that it was irrelevant to the drug conspiracy charges pending against him.

Id. Rejecting the defendant’s claim, the court observed that “[e]vidence of violent acts committed

by conspirators during and in relation to the conspiracy are direct evidence of the conspiracy” and

therefore admissible. Id.(internal quotation marks omitted). As to the inflammatory nature of the

evidence of the assault, the court disagreed with defendant’s contention that the evidence of the

assault was impermissibly prejudicial. Id. It wrote:

[The defendant’s] use of violence underscored to [the victim] and others in the
conspiracy the seriousness of the business and the consequences of disloyalty. It was
highly probative of the conspiracy itself and Schultz’s leadership role within it.
Although doubtless graphic, the pliers incident evidence was not so inflammatory as
to mandate a finding that it was so unfair and had such a tendency to support a

19
 decision on an improper basis that the district court abused its discretion in admitting
it.
Id.

The court’s analysis in Noe provides useful guidance in the present case. The evidence of

Minter’s assault, while prejudicial, established the chopper’s value to Stone as part of the arsenal

maintained by the organization and confirmed Stone’s leadership role within the conspiracy,

demonstrating that he possessed the authority to mete out punishment for perceived missteps by

coconspirators. The district court did not abuse its discretion in concluding that the evidence was

relevant to the case before it and not likely to “suggest a decision on an improper basis.” United

States v. Rey, 923 F.2d 1217, 1222 (6th Cir. 1991).

3.

As part of its case against Stone, the government sought admission of many of the firearms

discovered in the 1900 Cephas house and elicited testimony about the presence and use of firearms

at the house. Stone argues that the evidence of firearms was irrelevant to the question of whether

he engaged in a criminal conspiracy to sell illegal narcotics. He acknowledges, however, that Sixth

Circuit precedent recognizes the relevance of firearms in the execution of drug trafficking

conspiracies. See United States v. Ware, 161 F.3d 414, 417-18 (6th Cir. 1998) (observing that guns

seized were evidence of involvement in crack cocaine distribution conspiracy); United States v.

Paulino, 935 F.2d 739, 754 (6th Cir. 1991) (“This court has on several occasions recognized that

firearms and ammunition are tools of the drug trafficking trade and have been admitted in drug

distribution cases as tools of the drug conspiracy.”), superseded by statute on other grounds,

U.S.S.G. § 3B1.1; Jennings v. Rees, 800 F.2d 72, 75 (6th Cir. 1986) (noting that a loaded gun

discovered during course of search could “fairly be viewed as a tool of the drug trafficker’s trade”).

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Given this precedent, the centrality of firearms in the carrying out of drug conspiracies, and “the

common link between guns and drugs,” United States v. Wade, 318 F.3d 698, 703 (6th Cir. 2003),

the district court did not abuse its discretion in allowing evidence of the firearms discovered in 1900

Cephas.

F.

Stone claims that the district court’s imposition of a heightened sentence on the basis of prior

convictions found by the court, not a jury, violated his Sixth Amendment right to trial by jury. We

review de novo Stone’s constitutional challenge to his sentence. United States v. Copeland, 321 F.3d

582, 601 (6th Cir. 2003).

It is well-established that a defendant is entitled to a jury determination of those facts which

might increase the range of penalties to which he is subject. See Apprendi v. New Jersey, 530 U.S.

466, 490 (2000). A well-recognized exception limits this principle: a defendant may receive a

heightened sentence on the basis of a judicial finding of a prior conviction. See United States v.

Booker, 543 U.S. 220, 244 (2005) (reaffirming Apprendi holding that any fact other than a prior

conviction necessary to support a sentence exceeding the maximum punishment authorized by facts

established by plea of guilty or a jury verdict must be admitted by defendant or proved to jury beyond

a reasonable doubt).

Stone urges reversal on the ground that certain members of the Supreme Court have

expressed reservations about the correctness of the Court’s decision in Almendarez-Torres v. United

States, 523 U.S. 224 (1998), “which draws an exception to the Apprendi line of cases for judicial

factfinding that concerns a defendant’s prior convictions.” Shepard v. United States, 544 U.S. 13,

27-28 (2005) (Thomas, J., concurring). This court has previously declined to overrule the prior

21
conviction exception when presented with the same arguments Stone advances. See United States

v. Hill, 440 F.3d 292, 299 n.3 (6th Cir. 2006); see also United States v. Gatewood, 230 F.3d 186, 192

(6th Cir. 2000) (“Although the Court’s decision in Apprendi arguably casts doubt on the correctness

of the holding in Almendarez-Torres, . . . Almendarez-Torres remains the law.”). We, like the panels

before us, are bound to apply the Supreme Court’s existing precedent on this issue, see United States

v. Beasley, 442 F.3d 386, 392 n.3 (6th Cir. 2006), and deny Stone’s claim.

G.

Stone challenges the district court’s determination regarding his ability to pay a fine. That

conclusion is a factual finding subject to reversal only upon a showing of clear error. United States

v. Hickey, 917 F.2d 901, 906 (6th Cir. 1990).

The Sentencing Guidelines require the imposition of a fine within the appropriate range “in

all cases,” unless a defendant demonstrates an inability to pay. U.S.S.G. § 5E1.2(a). “It is the

defendant’s burden to establish that he cannot and will not be able, even under an installment

schedule, to pay the assessed fine.” United States v. Ukomadu, 236 F.3d 333, 340 (6th Cir. 2001).

Current assets are not determinative of an ability to pay a fine. United States v. Perez, 871 F.2d 45,

48 (6th Cir. 1989). “[S]ignificant indicators” of a defendant’s inability to pay an assessed fine

include a failure to post bond and the defendant’s eligibility for court-appointed counsel. U.S.S.G.

§ 5E1.2 cmt. n.3 (2004).

Stone’s offense level of 44 made him eligible for a fine in the range of $25,000 to $8 million.

U.S.S.G. § 5E1.2. In imposing a fine on Stone, the district court relied on the findings of the

Presentence Report, which outlines the information provided by Stone in his pretrial services report

concerning his assets. Stone reported ownership of four vehicles: (1) a 1997 GMC vehicle; (2) a

22
1990 Crown Victoria; (3) a 2002 GMC Jimmy, purchased by Stone for $5000 and sold for an

unknown amount; and (4) a 1990 Grand Marquis that he gave to his son upon his conviction. Stone

informed the probation officer that upon his conviction, his family members took his belongings,

including any jewelry and household furnishings. Stone also claimed to have $68 in his jail account.

The PSR also indicates that Stone, at the time, owed $495 to Nashville Electric and $6,604 in unpaid

child support to the Tennessee Department of Human Services. According to the PSR, Stone

declined to provide a response to a question about any existing bank accounts. The PSR concluded

on the basis of this information and Stone’s “lack of forthrightness” that Stone had the ability to pay

a fine at the bottom of the Guidelines range.

Prior to sentencing, Stone objected to the PSR’s statements concerning his bank accounts and

ability to pay a fine. At sentencing, the district court imposed the lowest fine allowed under the

Guidelines: “The Court under the Guidelines, based upon the evidence at trial and your failure to

cooperate concerning what finances you have and bank account[s], imposes a fine of $25,000. That

is the fine under the Guidelines.”

In his challenge to the district court’s decision, Stone points to the magistrate judge’s

determination early in the proceedings against him that he was financially unable to secure counsel

or to pay the fee of any witness. The United States responds that the magistrate made its

determination without the benefit of many of the facts later found at trial and by the sentencing court,

that is, that Stone was at the head of a major conspiracy to distribute narcotics.

Stone’s financial status prior to trial is relevant to his ability to pay a fine. The law of this

circuit makes clear, however, that a defendant must establish both current and future inability to pay

a fine. See United States v. Blanchard, 9 F.3d 22, 26 (6th Cir. 1993) (refusing to disturb fine

23
imposed by district court when defendant failed to offer proof regarding his future inability to pay

a fine). While $25,000 constitutes a substantial monetary penalty, particularly for an individual

facing a life sentence, Stone has failed to provide the district court or this court with any evidence

demonstrating his future inability to pay and has, therefore, failed to meet his burden of establishing

the impropriety of the district court’s decision. Stone’s insistence that the district court’s imposition

of a $25,000 fine for his lack of candor constitutes unwarranted “piling on” of punishment cannot,

in the absence of evidence demonstrating both a present and future inability to pay, form the basis

for reversal of the district court’s decision. We accordingly affirm the district court’s imposition of

a $25,000 fine.

H.

Stone argues that the district erred in admitting the testimony of Sharon Trent, a witness

called as an expert by the government as part of its required evidentiary showing relating to Stone’s

prior felony drug convictions. The district court’s decision to admit Trent’s testimony is reviewed

for an abuse of discretion. Tarwater, 308 F.3d at 512.

The statutory provision under which Stone was charged provides for a mandatory term of life

imprisonment for individuals who are found guilty of violating that provision following two or more

previous drug felony convictions. 21 U.S.C. §841(b)(1)(A)(iii). In order to secure a heightened

sentence under § 841, the government must comply with the procedures set forth at 21 U.S.C. § 851.

Under §851(a)(1), the United States is required to file an information prior to trial or the entry of a

plea “stating in writing the previous convictions to be relied upon.” A defendant who intends to

challenge the existence or validity of those convictions must, in turn, file a written response to the

government’s information, setting forth the basis for any objections. 21 U.S.C. § 851(c)(1). The

24
statute directs the district court to hold a hearing, without a jury, to address any issues raised by the

response upon the submission of evidence by both parties. Id. The government bears the burden of

proof beyond a reasonable doubt on any issue of fact. Id.

On October 25, 2004, the government timely filed an information notifying Stone of two

prior drug felony convictions in the Criminal Court of Davidson County, Tennessee, on which it

intended to rely for an increased sentence. The first conviction, in Case Number 91-D-2338, arose

out of Stone’s arrest on August 8, 1991, for the sale of cocaine, a Class B felony. The second

conviction, in Case Number 92-A-556, arose out of Stone’s arrest on November 13, 1991, for the

sale or delivery of cocaine on November 13, 1991, a Class B felony. The defendant filed a response

on October 29, 2004, and a supplemental response on November 1, 2004, raising constitutional

challenges to § 851 and denying the alleged prior convictions. Upon defendant’s representation at

sentencing that he denied the allegation of the prior convictions, the district court agreed to a hearing

at a later date at which time the government would submit evidence of those convictions.

At the hearing on February 24, 2004, the government offered the testimony of Sharon Trent,

a member of the Nashville Metro Police Department’s Identification Section. Relying on

fingerprints appearing on a fingerprint card produced following Stone’s arrest for statutory rape in

August 1996, Trent concluded that the index finger print appearing on that card matched the index

finger print appearing in the arrest report for the August 1991 conviction. Trent was unable to match

the prints on the 1996 fingerprint card to the index finger print appearing on the arrest report for the

November 1991 arrest because, she testified, the print on the November 1991 arrest report was

“unidentifiable.” The government also called Detective John Donegan of the Nashville Police

Department who served as one of the arresting officers and the case officer for Stone’s November

25
1991 arrest. At the sentencing hearing, Donegan identified Stone as the same individual arrested in

November 1991. Following the admission of all evidence, the court ruled that the government had

sufficiently proven the prior felony offenses necessary to trigger imposition of the mandatory life

sentence.

Stone claims on appeal, as he did before the district court, that Trent was not qualified to

offer testimony as an expert on the identification of the fingerprints at issue and the district court

should have excluded her testimony under Federal Rule of Evidence 702. Rule 702 permits the

admission of testimony by a witness qualified as an expert by “knowledge, skill, experience, training,

or education” on an issue calling for scientific, technical, or other specialized knowledge, so long

as the trial court deems the witness’s testimony reliable. See Fed. R. Evid. 702.

Trent testified that she had 265 hours of training and took regular proficiency tests. She also

testified that she had made “thousands of identifications.” The district court relied on Trent’s

experience, training, and ongoing evaluation as a basis for admitting her testimony. The court

rejected Stone’s argument that Trent was unqualified to testify because she had not yet completed

the Federal Bureau of Investigation certification process, noting that the lack of this one credential

went to the weight to be accorded to her testimony, not its admissibility. It concluded:

[B]ased upon the testimony that the witness has been in the field for many years, has
been certified as an expert, at least in two or more court cases, to give opinion
testimony about a fingerprint comparison, given that her work is supervised and
verified by a supervisor, the Court feels that there is sufficient indicia of reliability
to admit the testimony.

26
In relying on Trent’s training and experience as adequate markers of her competence to testify as a

fingerprint examiner, the district court acted well within the boundaries of the discretion accorded

it under Rule 702, and we reject Stone’s challenge to the admission of Trent’s testimony.2

I.

Stone asserts that the imposition of a life sentence on the basis of two previous convictions

violates the Fifth Amendment’s prohibition on double jeopardy and the Eighth Amendment’s

protections against cruel and unusual punishment. We review de novo Stone’s constitutional claims

relating to his sentence. United States v. Flowal, 163 F.3d 956, 963 (6th Cir. 1998).

1.

Stone argues that the imposition of a heightened sentence based upon prior convictions

constitutes impermissible double jeopardy. The Sixth Circuit has flatly rejected this argument at

least twice. Flowal, 163 F.3d at 963; United States v. Mack, 938 F.2d 678, 681 (6th Cir. 1991). We

are bound to apply these holdings and accordingly reject Stone’s double jeopardy claim.

2.

Stone argues that the imposition of a mandatory life sentence on the basis of his prior felony

drug convictions constitutes cruel and unusual punishment. When considering Eighth Amendment

challenges to a sentence, this court applies the “narrow proportionality principle” described in Justice

Kennedy’s concurring opinion in Harmelin v. Michigan, 501 U.S. 957, 995-97 (1991) (Kennedy, J.,

concurring). United States v. Hill, 30 F.3d 48, 50 (6th Cir. 1994). Under this approach, the Eighth

2
Stone’s argument relating to Trent’s testimony implies that absent that testimony, the United
States lacked adequate evidence to establish the existence of his previous drug felony convictions.
The government offered additional evidence, however, including the testimony of Donegan, who
identified Stone as the perpetrator of the November 1991 conviction, and the two judgments entered
in the Tennessee criminal court.

27
Amendment does not demand strict proportionality between crime and sentence but forbids “only

extreme sentences that are grossly disproportionate.” Harmelin, 501 U.S. at 1001 (Kennedy, J.,

concurring). The petitioner in Harmelin challenged the imposition in state court of a mandatory term

of life imprisonment without parole for possession of 672 grams of cocaine. Id. at 961. The life

sentence constituted cruel and unusual punishment in his case, he claimed, because he had no prior

felony convictions. Id. at 994. The Court disagreed and affirmed the sentence. Id. at 996.

In Hill, this court, relying on Harmelin, affirmed the imposition of a mandatory life sentence

imposed for a violation of 21 U.S.C. § 841(a)(1), finding the defendant’s sentence was not grossly

disproportionate in light of his two previous felony drug convictions and the 177.8 grams of cocaine

base involved in the distribution conspiracy for which he was convicted. 30 F.3d at 50. Four years

later, the Sixth Circuit affirmed a life sentence imposed on a defendant with two prior drug felony

convictions who was convicted of possession of cocaine with intent to distribute. Flowal, 163 F.3d

at 963. Although the court in Flowal observed that a life sentence was “rather extreme,” given the

offense, id., the court pronounced itself bound by the precedent established in Hill. Id.

Stone acknowledges that his Eighth Amendment claim is at odds with the Sixth Circuit’s

decisions in Hill and Flowal, (Appellant’s Br. at 32), and offers no justification for a differing result

in this case. Consequently, we deny his constitutional claims relating to the district court’s

imposition of a life sentence based upon his prior felony drug convictions.

III.

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

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