NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
File Name: 12a0271n.06
Nos. 09-1536/09-1537
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
FILED
UNITED STATES OF AMERICA, ) Mar 13, 2012
) LEONARD GREEN, Clerk
Plaintiff-Appellee, )
)
v. ) ON APPEAL FROM THE UNITED
) STATES DISTRICT COURT FOR
SURINDER DHALIWAL and BALJIT SINGH, ) THE WESTERN DISTRICT OF
) MICHIGAN
Defendants-Appellants. )
)
Before: BOGGS and GIBBONS, Circuit Judges; RUSSELL,* Senior District Judge.
RUSSELL, Senior District Judge. Defendants Surinder Dhaliwal (“Dhaliwal”) and Baljit
Singh (“Baljit”) appeal following their convictions for conspiracy to distribute cocaine, in violation
of 21 U.S.C. §§ 846 and 841(a)(1). Dhaliwal and Baljit now raise various issues on appeal. We
conclude that all of them are meritless, and we AFFIRM the convictions.
I. FACTUAL BACKGROUND
On April 28, 2008 the Department of Homeland Security, Bureau of Immigration and
Customs Enforcement (“ICE”), received information from Canadian law enforcement authorities that
a green semi-trailer truck bearing the company logo “GTX” may be transporting a large amount of
cocaine through the United States to Canada. Based upon this information, ICE agents located the
green GTX truck at a Flying J truck stop in Gary, Indiana that same night. After continuing
*
The Honorable Thomas B. Russell, United States Senior District Judge for the Western District
of Kentucky, sitting by designation.
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surveillance at the Flying J through the night, ICE agents observed a white GTX semi-trailer truck
arrive at the truck stop the next morning. How these GTX trucks came to be at the Flying J, what
occurred at the Flying J, and what occurred after the trucks left the Flying J constitute the heart of
the conspiracy charge against Dhaliwal, Baljit, and their coconspirators. Many of these facts were
controverted.
Appellant Dhaliwal, the driver of the green GTX truck, testified at trial that he started
receiving telephone calls from Pauma, another truck driver, while he was in Salinas, California to
pick up a load of strawberries. After leaving California, Dhaliwal proceeded along the route to his
next stop in Toronto, Canada. On April 27, 2008, Dhaliwal was awakened by two men knocking
on the door of his truck while he slept at a truck stop in Utah. The men, who were armed, gave
Dhaliwal three duffel bags full of cocaine to transport in his truck and threatened Dhaliwal’s and his
children’s lives. After the men left, Dhaliwal received several threatening calls from Pauma.
Dhaliwal testified that during these calls, he repeatedly told Pauma he would throw out the duffel
bags. Dhaliwal arrived at the Flying J truck stop in Gary, Indiana on April 28, 2008. In the middle
of the night, Dhaliwal tried to move his truck but discovered that his truck’s air hoses were cut.
Dhaliwal had his truck repaired and then went back to sleep.
Co-conspirator and co-defendant Tarlochan Singh Guron (“Guron”), the driver of the white
GTX truck, testified that he received assistance from an individual named Jeswinder Singh
(“Jeswinder”) when he experienced problems with his truck in Montana on April 24, 2008. After
getting his truck fixed, Guron made two stops in California before arriving at a Love’s gas station
in Utah to spend the night. The next morning, Guron noticed Dhaliwal’s green truck at the Love’s
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and observed Dhaliwal with socks on his hands and brown-colored blocks in the truck. Guron
testified that he then called his boss, Karamjit Gill (the owner of GTX trucking), and relayed his
observations. According to Guron, Gill told him that what he saw may be drugs and that he should
stay behind to follow Dhaliwal. Gill also informed Guron that he would call the authorities and
report the drugs. Guron testified that, at the request of Gill, he followed Dhaliwal from Utah and
arrived in Gary, Indiana on April 28, 2008. That night, Pauma told Guron over the phone that
Dhaliwal’s truck had some “stuff” in it and that Guron should let Dhaliwal put the “stuff” in Guron’s
truck. According to Guron, Pauma threatened him.
Appellant Baljit testified at trial that he and his wife owned a trucking business, which
closed in April of 2008 due to high gas prices. Searching for new business opportunities, Baljit
spoke to co-conspirator Rajinder Singh (“Rajinder”) about his interest in purchasing a gas station
in Indiana. Baljit testified that, in another telephone conversation on April 28, 2008, Rajinder told
him that if he wanted to see the gas station then he would introduce him to a person who would be
able to help.1 Baljit then purchased a plane ticket to travel from Seattle to Chicago, Illinois on April
28, 2008. Phone records introduced at trial showed that Baljit called Jeswinder immediately before
boarding the plane in Seattle. After arriving at in Chicago in the early morning of April 29, 2008,
Baljit called Rajinder, rented a silver Chevy Cobalt, and drove to the Flying J in Gary, Indiana.
1
On the morning of the arrests, Rajinder told the police that Baljit had flown to Chicago in order
to see Rajinder about getting a job and potentially moving to New Jersey. At trial, Rajinder testified
that that was “just an excuse to the police.”
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Rajinder2 testified that he received a call on April 28, 2008 from an individual named
Sarbjeet Singh (“Sarbjeet”) who advised him to contact Jeswinder about a plan to steal cocaine from
a truck in Indiana. According to Rajinder, Jeswinder stated that the cocaine in the truck belonged
to him and to four other people: Guron, Pauma, Gill,3 and another individual whose name Rajinder
could not recall. Jeswinder asked Rajinder to steal the cocaine from the truck, thereby ripping off
his other partners. Initially, Rajinder declined because he would not be able to make it to Gary,
Indiana in time to intercept the truck. He later agreed to the plan when Jeswinder explained that he
and Guron would delay the truck at the Flying J until Rajinder could get there. Rajinder further
testified that he made arrangements for Baljit to help him steal the cocaine.4
Rajinder and two other charged co-conspirators, Sandeep Singh (“Sandeep”) and Paramjeet
Singh (“Paramjeet”), arrived at the Flying J in Gary, Indiana at approximately 7:00 a.m. on April 29,
2008. According to Rajinder, for his role in the plan, he would be paid $20,000 to distribute among
himself, Sandeep, Paramjeet, and Baljit. He and Baljit were then to split another $20,000. Rajinder
also testified that Dhaliwal was to receive $25,000 for bringing the cocaine to Gary, Indiana and then
an additional $15,000 to take it further.
Rajinder and Baljit testified to slightly divergent versions of events after their separate
arrivals at the Flying J. Rajinder testified that, after greeting Baljit in the Flying J store, they walked
2
Rajinder Singh pleaded guilty to the conspiracy charge and testified at trial for the government.
3
It is unknown whether this is Karamjit Gill, the owner of GTX Trucking.
4
However, on cross-examination, Rajinder testified that Singh had been sent to Gary, Indiana by
Sarbjeet.
4
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into the restroom together, followed by Jeswinder and Guron. In the restroom, Jeswinder introduced
himself to Rajinder and introduced Guron as “Uncle Tarlochan.”5 Rajinder testified that, according
to the plan discussed in the restroom, Guron was going to ask Dhaliwal to go to the showers with
him. Rajinder was to steal the cocaine from the green truck while Dhaliwal showered, and then
place the duffel bags in Jeswinder’s truck. Rajinder further testified that after exiting the restroom
and going into the Flying J store, Baljit picked up duct tape and gloves and gave them to Paramjeet
to purchase. According to Baljit’s testimony, Rajinder gave the duct tape and gloves to Paramjeet
to purchase.
Meanwhile, Dhaliwal left the Flying J in his green truck and proceeded onto Interstate 94
east. Upon discovering that the green truck was gone, Rajinder called Jeswinder, who told him to
follow the green truck to exit 108. At exit 108, a garbage truck was to be waiting to take the cocaine
from the green truck and to further transport the cocaine to Canada. Rajinder testified that Baljit
gave him the keys to his rented silver Colbalt and told him to drive. According to Baljit, Rajinder
asked for the car keys so that he could drive. Baljit sat in the back seat of the car with Paramjeet,
while Rajinder drove and Sandeep sat in the front passenger seat. The silver Cobalt followed the
trucks on to Interstate 94 and eventually to the Michigan Welcome Center.
Guron testified that as he was leaving the Flying J to follow Dhaliwal’s green truck, Pauma
called him again and asked whether Guron met “his guys” and referred to a silver car and a black car.
Guron further testified that Pauma threatened him and his family. Dhaliwal testified that sometime
5
Guron and Singh both testified that they did not take an active part in this conversation.
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after leaving the Flying J, he received a call from Guron, who told him that he would take the bags
from him at the Michigan Welcome Center. Dhaliwal pulled into the Michigan Welcome Center
ahead of Guron. When Guron pulled into the Michigan Welcome Center, he parked next to
Dhaliwal’s green truck. After looking around, Guron opened the window of his truck and Dhaliwal
threw the duffel bags inside.
Guron then left the Michigan Welcome Center in the white truck, followed by Dhaliwal in
the green truck. As Dhaliwal was leaving the welcome center, the silver Cobalt pulled in front of
him and blocked the interstate ramp. Rajinder, whom Dhaliwal did not know at the time, got out of
the car and approached the green truck. To confirm that the duffel bags were no longer in the green
truck, Rajinder stepped up onto the truck and looked inside. When Rajinder returned to the car, they
started to once again follow the white and green trucks along Interstate 94. When Rajinder got close
enough to the white truck, he recited its trailer number and company number on the phone to
Jeswinder. Jeswinder confirmed that it was Guron’s truck. Baljit testified that he did not know what
was going on, but that Rajinder was angry and was talking on the phone about “beating and
violence.” According to Baljit, Rajinder told him that, “We will help you and we will take you to
the Detroit. But do not interfere in our work.” Baljit maintained that he was merely an innocent
bystander in the events of April 29, 2008.
During the course of surveillance on Interstate 94, the ICE agents noticed that a silver Cobalt
seemed to be following the green and white trucks. After observing the exchange take place at the
Michigan Welcome Center, where the duffel bags from the green truck were transferred to the
sleeper compartment of the white truck, the ICE agents continued to follow the green and white
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trucks along Interstate 94. Eventually, all three vehicles were pulled over with the help of the
Michigan State Police. After Guron consented to a search of the white truck, officers discovered
three duffel bags containing a total of 63.3 kilograms of cocaine. Dhaliwal, Baljit, Guron, Rajinder,
Sandeep, and Paramjeet were all arrested and charged with conspiracy to distribute cocaine in
violation of 21 U.S.C. §§ 846 and 841(a)(1).6
At trial, the government presented border entry information showing that four of the six
defendants entered the United States from Canada during a two-day period: Guron entered the
United States on April 22, 2008 at Sweetgrass, Montana; Baljit entered on April 23, 2008 at Blaine,
Washington; Rajinder entered on April 23, 2008 at Buffalo, New York; and Dhaliwal entered on
April 23, 2008 at Orville, Washington.
Phone records introduced at trial showed that Guron and Dhaliwal had frequent telephone
contact with each other in the days leading up to April 29, 2008. Guron and Dhaliwal each had
frequent telephone contact with Pauma and Jeswinder. Based on an examination of phone records,
an ICE agent testified that Guron, Dhaliwal, and Jeswinder traveled “in sync” from California to
Gary, Indiana.
6
Before trial, Rajinder, Sandeep, and Paramjeet all pleaded guilty. Dhaliwal, Guron, and Baljit
Singh were tried together. Jeswinder Singh, a Canadian citizen, was not arrested. Pauma and
Sarbjeet were never identified.
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II. ANALYSIS
A. Failure to Disclose Material Evidence: Brady Violations
On appeal, Dhaliwal and Baljit both contend that the government violated their rights under
Brady v. Maryland, 373 U.S. 83 (1963), by withholding evidence that would have supported Guron’s
position at trial–that he reported the discovery of the cocaine to his boss, Karamjit Gill, who
contacted the Royal Canadian Police in Windsor, who subsequently contacted the United States
Immigration and Customs Enforcement. Although they cannot identify the specific evidence that
is in the possession of the government, Dhaliwal and Baljit maintain that this is because the record
has not been supplemented with a more accurate description of the documents or information in the
possession of the government.
The basis for the appellants’ Brady claims stems from a pre-sentencing motion for a new
trial filed by their co-defendant, Guron, who asserted a duress defense at trial. In that motion, Guron
asserted that the government “pressure[d]” an “essential witness,” Karamjit Gill, not to testify at trial
and failed to disclose information relating to the initiation of this investigation based upon
information Guron provided to Gill, his employer. In response, the government agreed that it was
“in possession of information which may have corroborated the claim of [Defendant Guron] that he
presented at trial, that he himself provided the information which led to his arrest and this
Indictment.” The district court granted Guron’s motion for a new trial and the government thereafter
moved to dismiss the indictment against Guron only. Dhaliwal and Baljit now claim on appeal that
they are likewise entitled to a new trial based upon this alleged Brady violation.
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i. Dhaliwal’s Brady Claim
Dhaliwal’s Brady claim is not properly before this Court. On April 13, 2009, the district
court sentenced Dhaliwal to 180 months of imprisonment. Dhaliwal filed a notice of appeal on
April 17, 2009. Thereafter, on May 29, 2009, Dhaliwal filed a motion for a new trial. If a defendant
files a notice of appeal before a motion for a new trial, the district court may not grant a motion for
new trial without a remand. U.S. v. Blanton, 697 F.2d 146, 148 (6th Cir. 1983). However, the
district court does have three options. Id. First, the district court can certify that it is inclined grant
a new trial. Id. Second, the district court can deny the motion for a new trial outright if it feels that
it would not grant the motion in any event. Id. Third, the district court may decline to certify, or
decline to rule with finality on the motion, until after the appeal is concluded. Id. “Since this is not
a final order and hence is not appealable, the motion may be reasserted, under Rule 33, when the
case returns from the court of appeals.” Id. Here, the district court chose the third option and
declined to rule upon Dhaliwal’s motion for a new trial. Accordingly, there is no district court ruling
for this court to review and Dhaliwal’s appeal as it pertains to this issue is dismissed.
Related to his Brady claim, Dhaliwal contends on appeal that his Sixth Amendment right
to a fair trial and his Fifth Amendment Due Process rights were violated when the government
improperly pressured Karamjit Gill not to testify at trial. Dhaliwal further contends that, during
closing arguments, the prosecutor improperly commented on the failure of Guron and Dhaliwal to
present Karamjit Gill as a witness to corroborate their version of events. Because Dhaliwal raised
these prosecutorial misconduct claims in his motion for a new trial, Dhaliwal’s appeal as it pertains
to this issue is also dismissed.
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ii. Baljit’s Brady Claim
Unlike Dhaliwal, Baljit did not file a motion for a new trial in the district court, but instead
raises the issue for the first time on appeal. Where “the defense counsel did not make a motion for
a mistrial or raise the question of a possible Brady violation to the district court, we review at most
for plain error.” United States v. Crayton, 357 F.3d 560, 569 (6th Cir. 2004). Because Baljit did not
raise the issue of a possible Brady violation in the district court, “[i]t could also be said that
defendant waived his Brady claim, such that even plain error review is not required.” Id. at 569 n.
3 (citing United States v. Scarborough, 43 F.3d 1021, 1025 (6th Cir. 1994) and United States v.
Reeves, 215 F.3d 1328 (Table), 2000 WL 687649 at *2 (6th Cir. May 19, 2000)).
Pursuant to Brady, “the suppression by the prosecution of evidence favorable to an accused
upon request violates due process where the evidence is material either to guilt or to punishment,
irrespective of the good faith or bad faith of the prosecution.” Brady, 373 U.S. at 87. For a
defendant to assert a successful Brady claim, he must show the following three essential elements:
(1) the evidence is favorable to him; (2) the evidence was suppressed by the government; and (3) the
suppression caused him prejudice. Banks v. Dretke, 540 U.S. 668, 691 (2004). “‘Brady is concerned
only with cases in which the government possesses information which the defendant does not.
Further, there is no Brady violation if the defendant knew or should have known the essential facts
permitting him to take advantage of the information in question, or if the information was available
to him from another source.’” United States v. Graham, 484 F.3d 413, 417 (6th Cir. 2007) (quoting
Carter v. Bell, 218 F.3d 581, 601 (6th Cir. 2000)).
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To demonstrate prejudice, the defendant must show that the evidence at issue is material.
Strickler v. Greene, 527 U.S. 263, 282 (1999). Evidence is material “if there is a reasonable
probability that, had the evidence been disclosed to the defense, the result of the proceeding would
have been different.” Kyles v. Whitley, 514 U.S. 419, 433 (1995). A “reasonable probability” is “a
probability sufficient to undermine confidence in the outcome.” United States v. Bagley, 473 U.S
667, 682 (1985). Generally, evidence that could impeach the credibility of a witness is material.
Schledwitz v. United States, 169 F.3d 1003, 1011 (6th Cir. 1999).
Here, the government contends that the evidence at issue is not Brady material because
Karamjit Gill was an alternate source of the information and the defendants were put on notice of
these same facts before trial through a pre-trial motion filed by Guron.7 Irrespective of this notice,
Baljit contends that the government never provided an accurate description of the documents within
its control. The government did present the raw materials in its possession to the district court for
an in camera review related to Guron’s motion for attorneys’ fees pursuant to the Hyde Amendment.
In denying Guron’s discovery demand as it related to his Hyde claim, the district court did not
mention the nature of the evidence or its potential for Brady material as it related to Baljit or any
other defendant.
With respect to the nature of the raw materials in the government’s possession, it is apparent
that the evidence is something other than the phone records of Karamjit Gill. The government
7
Defendant Guron’s pre-trial motion for a jury instruction on the duress defense stated that Karamjit
Gill triggered the investigation after receiving information from Guron regarding Dhaliwal with
three duffel bags of what appeared to be drugs. The motion specifically named the employer, Karam
Gill, and the trucking company, Gooroo Express Company (GTX).
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adamantly denied withholding any phone records of Karamjit Gill and insisted that it did not have
those records until it received them as an attachment to Guron’s motion for a new trial. However,
the government must be in possession of some other materials which it presented for an in camera
review. Although the government admitted that the information it possesses supports Guron’s
position at trial, the nature of this information is unknown to the defendants and has not been
disclosed by the government. Accordingly, we cannot conclusively determine whether the evidence
at issue is Brady material.
In some cases where a defendant alleges a Brady violation on appeal, “[o]nce a defendant
establishes a basis for his claim that the records sought contain material evidence, even though he
cannot articulate with specificity the materiality of those records, remand for in camera review may
be appropriate.” United States v. White, 492 F.3d 380, 410 (6th Cir. 2007). In White, the defendants
learned after trial that an individual on the government’s list of potential witness received an award
for fraud examination and cited the defendants’ convictions among his list of successful cases. Id.
at 390. The defendants then brought a motion to compel that potential witness to produce any
documents he reviewed at the government’s request in preparing to testify. Id. After the district
court denied that motion, defendants filed Freedom of Information Act (“FOIA”) requests to obtain
documents pertaining to the case that were either prepared or received by the potential witness. Id.
They encountered substantial obstacles and ultimately received only a small portion of the
documents requested. Id. The district court denied the defendants’ motion for a new trial and a
request for an evidentiary hearing, and the defendants appealed. Id. On appeal, this court explained
that defendants were unable to make the requisite showing that the documents were material and
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favorable because the government went to great lengths to deny the defendants access to the
requested documents. Id. at 413. However, the defendants did establish a sufficient basis for their
claim that the documents constituted “material evidence” because the potential witness cited their
conviction among his successes and the FOIA request revealed a substantial body of responsive
documents. Id. Thus, this court vacated the district court's order denying the motion for new trial
and remanded the matter to the district court with instructions that the court conduct an evidentiary
hearing wherein the defendants could properly probe the nature of the evidence. Id.
Here, Baljit contends that the evidence at issue could have been used to impeach Guron’s
testimony relating to Baljit’s role in the alleged conspiracy. Specifically, Baljit points to the events
that occurred in the Flying J restroom and notes that “[w]hether Guron related this event and/or other
potentially incriminating information about [Baljit]” when he provided the information leading to
his arrest “would have been ripe grounds for impeachment.” However, because Guron called
Karamjit Gill about the drugs before the defendants arrived at the Flying J, Guron’s failure to
mention Baljit during this conversation would not have been grounds for impeachment. Instead,
information that would support Guron’s position at trial would only serve to bolster Guron’s
credibility.
Baljit further contends that the evidence at issue could have been used to impeach the
credibility of the law enforcement officers and the nature and professionalism of the investigation.
As a basis for this claim of materiality, Baljit states: “The officers receiving this information clearly
conveyed that they did not believe Guron’s version of events since they disregarded the call and
charged him as a conspirator in the drug trafficking scheme. This would have been a valuable area
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of cross-examination.” However, this potential area of cross examination is unrelated to Baljit and
the evidence regarding his role in the conspiracy.
Ultimately, Baljit cannot establish a basis for his claim that the materials in the government’s
possession are material evidence because whether or not Guron called Karamjit Gill and reported
the drugs is unrelated to Baljit’s role in the conspiracy. Therefore, there was no violation of Baljit’s
constitutional rights under Brady and it is not necessary to remand the case for an in camera
examination of the material in the possession of the government.
Accordingly, Baljit’s Brady claim fails.
B. Failure to Give Multiple-Conspiracy Jury Instructions
Dhaliwal contends that the district court erred in denying his request for a multiple
conspiracy jury instruction because the evidence produced at trial established the existence of
two separate conspiracies: one conspiracy to smuggle drugs into Canada and a separate
conspiracy to rob Dhaliwal of the drugs he was transporting. In response to Dhaliwal’s request
for a multiple conspiracy instruction, the district court ruled on the record that:
. . . I once again reiterate that in my view the government’s evidence is that all of the
defendants were involved in a singular purpose conspiracy to distribute the cocaine.
And just to give a little meat to those bones, based on the evidence the government
put forward, there were a number of men who were involved in the conspiracy, at
least from the beginning, including Mr. Dhaliwal, Mr. Guron, Pamma [sic],
Jeswinder, and perhaps Mr. Gill. At some point in time, Jeswinder and perhaps
Guron and Sarbjeet brought Rajinder into the conspiracy. That was followed by
Rajinder and perhaps Sarbjeet bringing Baljit into the conspiracy, if in fact they
weren’t part of it from the beginning. And, finally, Rajinder brought in Sandeep and
Paramjeet. My view of the testimony and the evidence is that all of these men were
brought into a single purpose conspiracy . . . .
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Dhaliwal argues on appeal that his ruling was in error and that the error constitutes grounds for a new
trial.
This court reviews a district court’s refusal to give a jury instruction for abuse of discretion.
United States v. Roth, 628 F.3d 827, 833 (6th Cir. 2011) (quoting H.C. Smith Invs., LLC v. Outboard
Marine Co., 377 F.3d 645, 650 (6th Cir. 2004)). The district court’s decision not to give the
requested jury instruction will be reversed “only when (1) the requested instruction is a correct
statement of the law; (2) the requested instruction is not substantially covered by other instructions
actually delivered; and (3) the failure to give the requested instruction impairs the defendant’s theory
of the case.” Id. at 835 (quoting United States v. Tarwater, 308 F.3d 494, 510 (6th Cir. 2002)).
However, if the defendant suffers no actual prejudice reversal is not required. United States v.
Caver, 470 F.3d 220, 246 (6th Cir. 2006).
To succeed on this claim of error, Dhaliwal must first show that his requested jury instruction
was a correct statement of the law. See Roth, 628 F.3d at 835. The Sixth Circuit directs that Pattern
Jury Instruction 3.08 should be given when “there [is] evidence of multiple conspiracies and a
possible variance . . . .” United States v. Maliszewski, 161 F.3d 992, 1014 (6th Cir. 1998). “The
principal considerations to determine the number of conspiracies are the existence of a common goal,
the nature of the scheme, and the overlapping of the participants in various dealings.” United States
v. Warman, 578 F.3d 320, 341-42 (6th Cir. 2009) (quoting United States v. Smith, 320 F.3d 647, 652
(6th Cir. 2003)). “[A] single conspiracy does not become multiple conspiracies simply because each
member of the conspiracy did not know every other member, or because each member did not know
of or become involved in all of the activities in furtherance of the conspiracy.” United States v.
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Warner, 690 F.2d 545, 549 (6th Cir. 1982). “[T]o prove a single conspiracy, the government must
show that each alleged member agreed to participate in what he knew to be a collective venture
directed toward a common goal.”
Id. (internal quotations omitted). However, the connections between conspirators can be
minimal. United States v. Swafford, 512 F.3d 833, 841 (6th Cir. 2008).
Here, the proposed multiple conspiracy jury instructions submitted by Dhaliwal to the
district court included indisputably incorrect statements of the law.8 An instruction stating that the
8
Dhaliwal’s proposed instructions stated the following:
MULTIPLE CONSPIRACIES
MATERIAL VARIANCE FROM THE INDICTMENT
(1) The Indictment charges that the defendants were members of one single
conspiracy to possess with intent to deliver over five kilos of cocaine.
(2) The defendants have argued that there were really two separate conspiracyone
the drug conspiracy between certain individuals, and the second being a separate
conspiracy between Rajinder Singh, Sandeep Singh, Paramjeet Singh, Jaswinder
LNU, Sarabjit LNU, and a Mr. Gill, to rob Surinder Dhaliwal.
(3) When there are numerous alleged co-conspirators, and numerous alleged
conspiracy objects, the jury must determine whether there was more than one
unlawful agreement or indeed, no agreement at all. This is a question of fact for the
jury to determine.
(4) If the evidence suggested the existence of more than one conspiracy, then the
evidence would not establish the single conspiracy charged.
(5) Multiple conspiracies exist when there is more than one unlawful agreement,
even if they all seek to achieve the same, or some of the same, purposes, or have
overlapping membership.
(6) If you have reasonable doubt about whether there is a single conspiracy, or more
than one conspiracy, then none of the defendants may be convicted under Count I
of the indictment.
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defendants may not be convicted if there is a reasonable doubt about whether there was a single
conspiracy or multiple conspiracies is plainly inaccurate. See Caver, 470 F.3d at 236-37;
Sixth Circuit Pattern Jury Instructions, § 3.08 (2005) at ¶¶3-4. Likewise, it is also incorrect that
if the evidence suggests the existence of more than one conspiracy then the evidence could not
establish the single conspiracy charged in the indictment. See United States v. Davenport, 808 F.2d
1212, 1217 (6th Cir. 1987) (noting that it is possible for the same set of facts to support both a
finding of a single conspiracy and a finding of multiple conspiracies). Accordingly, the district court
did not err in denying Dhaliwal’s request for the proposed jury instruction.
Even if the evidence produced at trial was sufficient to allow a jury to find multiple
conspiracies and the proposed jury instructions did not include incorrect statements of the law,
Dhaliwal was not prejudiced by the district court’s failure to give a multiple conspiracy instruction.9
“[T]he primary risk associated with the failure to give a multiple conspiracy instruction is the
transference of guilt from defendants involved in one conspiracy to defendants involved in another
conspiracy, such that a defendant is convicted for a conspiracy for which he was not indicted.”
Caver, 480 F.3d at 246. Here, there is little risk Dhaliwal was convicted for a conspiracy to steal
cocaine from himself–a conspiracy for which he was not indicted. Instead, Dhaliwal’s conviction
for conspiring to distribute cocaine was based on the abundant evidence presented by the
9
On appeal, Dhaliwal’s principal contention is that he was prejudiced by the inclusion of hearsay
statements that were not in furtherance of the conspiracy charged in the indictment. The
admissibility of these various statements made by his co-conspirators was determined by the district
court prior to their admittance and was not a result of the district court’s failure to give the multiple
conspiracy instruction. Dhaliwal does not challenge these rulings on appeal.
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government, Dhaliwal’s own testimony that he drove from Utah to Michigan with the cocaine, and
a rejection of his duress defense. Additionally, the district court did instruct the jury that “the
defendants are only on trial for the particular crime charged in the indictment. Your job is limited
to deciding whether the government has proved the charged conspiracy.” Dhaliwal suffered no
actual prejudice. Accordingly, Dhaliwal is not entitled to a new trial on this ground.
C. Failure to Grant Baljit’s Motion to Sever
Baljit contends that the district court erred in denying his motion to sever his case from that
of his co-defendants. Before trial, it became clear that Baljit’s co-defendants, Guron and Dhaliwal,
would both present a duress defense during trial. Out of fear that Guron’s and Dhaliwal’s
out-of-court statements implicating him in the alleged scheme to coerce them would be presented
at trial, Baljit moved to sever his trial from that of Guron’s and Dhaliwal’s. The district court denied
the motion. On appeal, Baljit argues that severance was required to protect his constitutional right
to confront the witnesses against him in the event his co-defendants did not testify at trial.10
This court reviews a district court’s decision to grant or deny a defendant’s motion to sever
his case from that of his co-defendants for an abuse of discretion. United States v. Anderson, 89 F.3d
1306, 1312 (6th Cir. 1996). Federal Rule of Criminal Procedure 14 provides that “[i]f the joinder
of offenses or defendants . . . appears to prejudice a defendant or the government, the court may . .
10
Baljit does not contend that he was denied his right to confront the witnesses against him. Instead,
Baljit argues that because there was a possibility that Dhaliwal and Guron would not have testified
at trial, the district court should have granted his motion to sever. However, both Dhaliwal and
Guron testified at trial, allowing Baljit the opportunity for cross-examination. Thus, Baljit’s trial
rights were not compromised in this respect.
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. sever the defendants’ trials . . . .” Fed. R. Crim. P. 14(a). “Generally, persons indicted together
should be tried together.” United States v. Warner, 971 F.2d 1189, 1196 (6th Cir. 1992). Severance
will be granted “only if there is a serious risk that a joint trial would compromise a specific trial right
of one of the defendants, or prevent the jury from making a reliable judgment about guilt or
innocence.” Zafiro v. United States, 506 U.S. 534, 539 (1993). Antagonistic defenses are not
sufficient to warrant severance; the defendant must show that the antagonistic defenses are likely
to mislead or confuse the jury. United States v. Critton, 43 F.3d 1089, 1098 (6thCir. 1995). A
defendant must show substantial, undue, or compelling prejudice to require a severance. United
States v. Lopez, 309 F.3d 966, 971 (6thCir. 2002).
At trial, Baljit maintained that he was merely an innocent bystander who had flown to
Chicago to meet Rajinder regarding a business opportunity. This position was not antagonistic to
his co-defendants’ duress defenses because Baljit’s claim of innocence was not predicated solely on
the guilt of Dhaliwal and Guron. See United States v. Harris, 9 F.3d 493, 501 (6th Cir. 1993). Here,
the jury could have made a determination that Baljit was an innocent bystander and that Guron and
Dhaliwal were forced to transport the cocaine. At trial, Dhaliwal did not testify as to Baljit’s role
in the conspiracy. Guron offered some testimony that he previously identified Baljit as one of the
men who approached him in the restroom of the Flying J and said they needed him to do some work
for them; however, at trial, Guron did not identify Baljit as one of the men who threatened him in
the Flying J restroom.11 Nevertheless, the attempt of one defendant to save himself by inculpating
11
At trial, Guron identified only “Binda” (Rajinder) as doing so.
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another defendant does not require that the defendants be tried separately. Warner, 971 F.2d at 1196
(citing United States v. Davis, 623 F.2d 188, 194 (1st Cir. 1980)). Furthermore, Baljit was able to
cross-examine Guron as to any statement inculpating him. Baljit has failed to make the strong
showing of prejudice necessary to require severance where the defendants were properly joined.
Accordingly, the district court did not abuse its discretion in denying Baljit’s motion to sever.
D. District Court’s Violation of Federal Rule of Criminal Procedure 25(a)
Baljit next claims that he is entitled to a new trial because he was deprived of his right to fair
trial in light of the circumstances surrounding jury deliberations and the district court’s violation of
Federal Rule of Criminal Procedure 25(a).
The jury returned guilty verdicts as to Guron and Dhaliwal after a day and a half of
deliberation. Later, while still deliberating as to Baljit, the jury submitted a question regarding the
definition of “conspired” and whether or not there was a possibility of reducing the charge. In
response, the presiding judge, the Hon. Janet Neff, referred the jury to the jury instructions. After
releasing the jury on September 30, 2008, Judge Neff informed the parties that she had “tickets for
Stratford on Thursday and Friday.” On October 1, 2008, Judge Neff issued an Allen charge to the
jury. At the same time, Judge Neff informed the jury that she would not be there for the rest of the
week and that Judge Gordon Quist would be there in her place to answer any further questions or to
receive the verdict. Later that afternoon, the jury submitted a set of questions to Judge Quist
regarding what they believed to be contradictory instructions, questions not raised in court, and the
use of trial transcripts. After consulting with the parties, Judge Quist followed the approach
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requested by Baljit’s counsel and answered these questions by referring the jury back to the jury
instructions. At the end of the day, the jury returned a guilty verdict as to Baljit.
Rule 25 provides that “[a]ny judge regularly sitting in or assigned to the court may complete
a jury trial if . . . the judge before whom the trial began cannot proceed because of death, sickness,
or other disability . . . and . . . the judge completing the trial certifies familiarity with the trial record.”
Fed. R. Crim. P. 25(a)(1)-(2). Baljit contends on appeal that the district court violated Rule 25(a)
when it substituted judges because Judge Neff lacked sufficient grounds for substitution before the
verdict was returned and because Judge Quist did not certify his familiarity with the trial record.
However, even if such a substitution was improper, Baljit is not entitled to a new trial unless he has
been prejudiced by the substitution. Fed. R. Crim. P. 52(a) (providing that “[a]ny error, defect,
irregularity, or variance that does not affect substantial rights must be disregarded”); see United
States v. Lane, 708 F.2d 1394, 1398 (9th Cir. 1983) (holding that appellant had not suffered any
prejudice by the improper substitution of judges which required reversal of the conviction).
Baljit contends that he was prejudiced by this improper substitution due to the circumstances
surrounding jury deliberations, including: long hours in a hot room, a tired group of people who
advised the court they had reached an impasse, numerous questions about the evidence both before
them and what they felt was missing, and unclear jury instructions. Specifically, Baljit takes issue
with Judge Quist’s referring the jury back to the jury instructions in response to the jury’s questions.
However, Judge Quist followed the approach suggested by Baljit’s counsel. In fact, Baljit’s counsel
stated that he would object to anything other than simply referring them back to what they already
heard. Therefore, Baljit cannot show that he was prejudiced in this respect. See United States v.
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Street, 614 F.3d 228, 234 (6th Cir. 2010) (a defendant cannot “agree in open court with [the] judge’s
proposed course of conduct and then charge the court with error in following that course.”).
Baljit further contends that he was prejudiced by the message the substitution sent to the
jurors–that “the time the jurors were collectively spending deliberating Appellant’s guilt or
innocence was not as important as whatever took Judge Neff ‘out of town for the rest of the week,’”
and that “they were to return a verdict as soon as possible or continue to sit together while others
moved along with their lives.” However, there is no evidence that the jurors knew the reason for the
substitution or that the jurors were in any way affected by the substitution. Accordingly, because
Baljit was not prejudiced by the substitution of judges, a reversal of his conviction is not warranted.
E. Insufficiency of Evidence
Baljit contends that the evidence offered at trial was insufficient to support a guilty verdict
against him.12 This court reviews de novo a defendant’s preserved claim on appeal challenging the
sufficiency of the evidence of guilt. United States v. Tocco, 200 F.3d 401, 424 (6th Cir. 2002). In
reviewing a claim of insufficient evidence, the court reviews the evidence in the light most favorable
to the prosecution and determines whether “any rational trier of fact could have found the essential
elements of the crime beyond a reasonable doubt.” Jackson v. Virginia, 443 U.S. 307, 319 (1979)
(citing Johnson v. Louisiana, 406 U.S. 356, 362 (1972)).
12
Singh preserved this claim for appeal by orally moving the district court at the close of the
government’s case and at the close of all proofs pursuant to Federal Rule of Criminal Procedure 29.
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“Circumstantial evidence alone is sufficient to sustain a conviction and such evidence need
not remove every reasonable hypothesis except that of guilt.” Tocco, 200 F.3d at 424 (internal
quotations omitted). “The jury may draw any reasonable inferences from direct, as well as
circumstantial, proof.” Id. To sustain a drug conspiracy conviction under 21 U.S.C. § 846, the
government must prove beyond a reasonable doubt that (1) there was an agreement to violate drug
laws; (2) the defendant had knowledge of and intent to join the conspiracy; and (3) he participated
in the conspiracy. United States v. Gardner, 488 F.3d 700, 710 (6th Cir. 2007).
As for the first element, “the government need not prove the existence of a formal or express
agreement among the conspirators. Even a tacit or mutual understanding among the conspirators is
sufficient.” Id. (citing United States v. Avery, 128 F.3d 966, 970-71 (6th Cir. 1997)). Here, the
government put forward sufficient evidence of an agreement to violate the drug laws by transporting
cocaine from the United States to Canada. The government presented voluminous phone records
showing that the alleged co-conspirators were in constant contact with one another. ICE agents
observed and security video showed three duffel bags of cocaine being transferred from Dhaliwal’s
to Guron’s truck. Additionally, Rajinder’s testimony provided substantial support for the existence
of an agreement, as he testified that Dhaliwal was paid to transport the cocaine to Michigan, where
a garbage truck would take the cocaine across the border into Canada.
As to the second and third elements, “the government must show the willful membership
of the defendant in the conspiracy . . . .” Id. at 711. Although a defendant's connection to the
conspiracy need only be slight, mere association with other conspirators is not sufficient to establish
participation. Id. The government “must prove that [the defendant] was aware of the objects of the
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conspiracy, and that he voluntarily associated himself with it to further its objectives.” United States
v. Gibbs, 182 F.3d 408, 421 (6th Cir. 1999) (quoting United States v. Hodges, 935 F.2d 766, 772 (6th
Cir.1991)). The defendant “‘need not be an active participant in every phase of the conspiracy, so
long as he is a party to the general conspiratorial agreement.’” Id. (quoting Hodges, 935 F.2d at
773). Finally, a defendant's knowledge of and participation in the conspiracy may be inferred from
his actions and reactions to the circumstances. Gardner, 488 F.3d at 711.
On appeal, Baljit contends that the only evidence offered against him regarding the element
of intent was Rajinder’s “incredible testimony.” In attacking Rajinder’s testimony, Baljit points out
that Rajinder is a convicted drug trafficker and trafficker of illegal aliens and that Rajinder lied
repeatedly to numerous individuals associated with this case. However, there “is no place . . . for
arguments regarding a government witness’s lack of credibility . . . .” when reviewing a challenge
to the sufficiency of the evidence. United States v. Adamo, 742 F.2d 927, 934-35 (6th Cir. 1984).
Indeed, “[i]t is [for] jurors and not for appellate courts to say that a particular witness spoke the truth
or fabricated a cock-and-bull story.” United States v. Gallo, 763 F.2d 1504, 1518 (6th Cir. 1985).
Applying these standards, we conclude that there was sufficient evidence to permit a rational
juror to find that Baljit was a willing participant in the overarching conspiracy to distribute the
cocaine from the United States to Canada. At trial, the government presented evidence that law
enforcement officers arrested Baljit at the scene of the traffic stop in Michigan. In the trunk of the
silver Cobalt, officers found Baljit’s plane ticket and rental receipts for the car. Additionally,
Rajinder’s and Sandeep’s testimony confirmed that Baljit was a part of the plan to steal the cocaine,
possibly from the beginning. Rajinder testified that Baljit was to meet him in Gary, Indiana in order
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to steal the drugs from the green GTX truck. Rajinder and Sandeep both testified that Baljit gave
money to Paramjeet to purchase gloves and duct tape in order to tie Dhaliwal’s hands together if he
came back while they were stealing the cocaine. Additionally, phone records presented by the
government show that Baljit exchanged phone calls with Jeswinder on April 28, 2008, immediately
before boarding the plane from Seattle to Chicago.
Taking the evidence in a light most favorable to the government, a reasonable juror could
conclude that Balit knew of the conspiracy to transport the cocaine to Canada and voluntarily
associated himself with that conspiracy by agreeing to steal the cocaine from Dhaliwal in order to
place the drugs in Jeswinder’s hands. Although Rajinder testified that he did not know what would
happen after they placed the stolen cocaine in Jeswinder’s truck, the jury could rationally infer that
Baljit knew the large quantity of cocaine would be further distributed. Accordingly, there was
sufficient evidence to prove that Baljit was a knowing and willful participant in the conspiracy to
distribute cocaine. Baljit’s challenge to the sufficiency of the evidence therefore is without merit.
III. CONCLUSION
Having addressed all of Dhaliwal’s and Baljit’s arguments and finding none of them
persuasive for the reasons articulated above, we AFFIRM Dhaliwal’s and Baljit’s convictions.
25
United States v. Surinder Dhaliwal
Court: Court of Appeals for the Sixth Circuit
Date filed: 2012-03-13
Citations: 464 F. App'x 498
Copy CitationsCombined Opinion