United States v. Clarence Williamson, Jr.

NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
File Name: 16a0461n.06

Case No. 15-1745

UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
FILED
Aug 11, 2016
UNITED STATES OF AMERICA, ) DEBORAH S. HUNT, Clerk
)
Plaintiff-Appellee, )
) ON APPEAL FROM THE
v. ) UNITED STATES DISTRICT
) COURT FOR THE EASTERN
CLARENCE WILLIAMSON, JR., ) DISTRICT OF MICHIGAN
)
Defendant-Appellant. )
)
) OPINION

BEFORE: COLE, Chief Judge; BATCHELDER and COOK, Circuit Judges.

COLE, Chief Judge. For over a decade, Clarence Williamson headed a large cocaine and

marijuana distribution organization in the Detroit, Michigan area. A jury convicted him of three

counts: conspiracy to possess with intent to distribute and to distribute cocaine and marijuana,

conspiracy to launder money connected to drug trafficking, and conspiracy to possess a firearm

in furtherance of drug trafficking. He challenges those convictions on several grounds: first, that

he was subjected to double jeopardy in violation of the Fifth Amendment; second, that there was

insufficient evidence to convict him; third, that a police officer impermissibly offered lay opinion

testimony by interpreting recorded phone conversations for the jury; fourth, that the prosecutor

impermissibly vouched for the credibility of a witness. Finding no reversible error, we affirm.
Case No. 15-1745
United States v. Williamson

I. BACKGROUND

In 2000, Williamson and his friend, Anthony Edwards, began buying and selling cocaine

in the Detroit area—up to a kilogram a month. Dissatisfied with the quality and price of cocaine

they were receiving from the Detroit suppliers, the two agreed that they needed a new source.

Sometime around 2003, Williamson found a new supplier in California who went by the name of

“Sweet.”

Over the next several years, Williamson arranged to ship hundreds of kilograms of

cocaine from California to Detroit. The plan was simple: a few times a month, some of

Williamson’s associates would drive a car loaded with cash to California, exchange the cash for

several kilograms of cocaine, and then drive the car (now loaded with drugs) back to the Detroit

area. Once back in Detroit, Williamson delivered the cocaine to lower-level dealers who sold it

to users and remitted the proceeds back to him. Then, the process would start over: the cash

from those sales would be transported by car to California and traded for more cocaine.

Sometimes, Williamson would accompany the cash and drugs on these drives to

California and back. Other times, he flew to California and met the drivers there. If a problem

with the exchange occurred, Williamson intervened to address it. For example, when Kendrah

Smartt, one of Williamson’s frequent couriers, was arrested in Nebraska on her way back from

California with four kilograms of cocaine hidden in her car, Williamson gave her money for bail.

After several years of dealing cocaine, sometime around 2008 or 2009, Williamson also

began dealing marijuana. He organized a similar transportation scheme. Once or twice a month,

Williamson or his associates would drive a car loaded with cash to Arizona to meet with his

marijuana supplier, Daryl Sewell. They would trade the cash for marijuana—typically between

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80 and 100 pounds per trip—and then drive back to Detroit. Again, the cash from sales to users

would be used to buy more marijuana.

At least twice, police stumbled upon Williamson’s operation but did not pursue charges

against him. In January 2005, on the outbound leg of one trip, Williamson and several associates

were stopped in Oklahoma for erratic driving. The Oklahoma state troopers’ subsequent search

of the vehicle uncovered $1.5 million in cash and two loaded handguns hidden in secret

compartments. Williamson and the other occupants disclaimed ownership of the money and

guns, and were released. In October 2008, police in California caught Williamson in a “reverse

sting” operation where an informant had offered to sell eight kilograms of fictitious cocaine.

When the police arrived at the apartment where the deal was to have taken place, they found

Williamson and several associates standing at the door (appearing to have just left the

apartment), and a bag containing $150,000 in cash inside. Once again, Williamson was released.

Despite these setbacks, Williamson continued to prosper—at one point, he bragged to his

girlfriend that he was a millionaire. He began operating out of a warehouse on Glendale Street in

Detroit, nicknamed “The Factory.” Detroit police became aware of this facility around 2010,

and set up a “pole camera” so they could keep track of the operation in real time.

The camera led them to direct evidence of drug trafficking. In April 2010, the police

observed a pick-up truck arrive at The Factory, and Williamson’s son, Shaun Askew, load two

garbage bags into its bed. The driver, Jaami Townsend, abandoned the truck in a parking lot

when he noticed police following him. Williamson and Edwards picked up Townsend, and later

in the day, Townsend’s brother collected the abandoned truck. Police followed and eventually

stopped and searched the truck, finding the bags to contain about 45 pounds of marijuana.

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About five months later, the officers observed similar behavior at The Factory, with

Askew loading garbage bags into a van driven by Terrell Clark. Clark and Askew then drove

away from The Factory. A subsequent stop and search of the van revealed that the bags once

again contained marijuana.

The police also tapped cell phones owned by Edwards, Williamson’s original partner. In

January 2011, the police learned through wiretaps that Williamson had agreed to sell multiple

kilograms of cocaine to a buyer named Carl Jones. The police followed Williamson, Edwards,

and Jones around town the day of the deal, as Williamson gave the cocaine to Edwards, Edwards

gave it to Jones, Jones sold it to another man named Isaac Sheppard, and then Jones deposited

the money from the sale at Williamson’s sister’s house. Police tailed Sheppard as he drove away

from the sale. When they tried to stop him, he led them on a chase, during which he threw the

cocaine out of his car window. The police recovered that cocaine, and eventually arrested

Sheppard.

In September 2011, a federal grand jury indicted Williamson and seventeen other

individuals on charges related to operating a drug trafficking ring. Williamson retained an

attorney to defend him. Over two years later, less than a week before his trial was to begin,

Williamson asked to replace his current counsel, claiming there had been a breakdown in

communication. The district court granted his request but cautioned Williamson that further

delays would not be tolerated.

About six months after that, the day Williamson’s rescheduled trial was to begin,

Williamson once again asked for a new attorney, again claiming a breakdown in communication

and asserting he had retained different counsel who could be ready for trial in a few days. When

the district court found that Williamson’s assertion was false—he had not retained a new

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attorney, although he had contacted one who said he would need at least six months to prepare

for trial—the district court denied Williamson’s motion. Williamson refused to go forward with

his current attorney. The district court then ordered that Williamson would represent himself

with his current attorney acting as standby counsel.

Day one of the trial went forward as scheduled: a jury was selected and sworn, and the

court then recessed for the day. The next morning, Williamson, who was out on bond, did not

appear for court. Williamson’s sister informed the court that Williamson had been admitted to

the hospital that morning with chest pains. The judge stated that he was “of th[e] opinion” that

this hospitalization was consistent with Williamson’s past efforts to delay the case. The court

also expressed concern about the effect that a delay could have on Terrell Clark, Williamson’s

co-defendant (and nephew) who was to be tried jointly. Accordingly, the district court

announced it was considering revoking Williamson’s bond, declaring a mistrial, and severing

Clark’s trial from Williamson’s. However, before doing so the court took a recess to allow the

parties to gather more information about Williamson’s condition and to consider the legal

ramifications of the court’s suggested actions.

During the hour-long recess, the parties confirmed that Williamson was, in fact, in the

hospital, but could not obtain additional information. The prosecutor stated the government’s

position “that a mistrial is appropriate in this circumstance,” and asked “the Court to ensure that

the attorneys on Defense side agree with a mistrial and don’t have a problem with it.” Hearing

no objection from either Williamson’s standby counsel or Clark’s counsel, the district court

declared a mistrial. The district court also, at the request of the government, revoked

Williamson’s bond. Clark pleaded guilty a few months later.

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United States v. Williamson

Williamson was ultimately hospitalized for a few days recovering from what doctors

diagnosed as a stroke. After his release from the hospital, Williamson was incapacitated and

housed in an inpatient psychiatric ward for several weeks due to lingering mental and physical

problems. These ongoing problems required a competency hearing before trial could go

forward. Represented by new counsel and eventually found competent to stand trial, Williamson

thereafter moved to dismiss the indictment on the grounds that the mistrial was improper and a

retrial would constitute double jeopardy. The district court denied the motion.

After a multi-week trial, a jury convicted Williamson of all three conspiracy charges.

The district court denied Williamson’s post-trial motions to set aside the verdict or for a new

trial. See Fed. R. Crim. P. 29, 33. This timely appeal followed.

II. ANALYSIS

A. Double Jeopardy

Williamson claims the district court improperly granted a mistrial, and therefore

subjected him to double jeopardy. “We review de novo a district court’s denial of a motion to

dismiss on grounds of double jeopardy.” United States v. Gantley, 172 F.3d 422, 427 (6th Cir.

1999). However, we review the district court’s underlying decision to grant a mistrial for abuse

of discretion. United States v. Cameron, 953 F.2d 240, 243 (6th Cir. 1992).

The Double Jeopardy clause of the Fifth Amendment protects a criminal defendant from

being tried twice for the same offense. United States v. Dinitz, 424 U.S. 600, 606 (1976). In a

jury trial, the right attaches from the moment the jury is sworn. Fulton v. Moore, 520 F.3d 522,

528 (6th Cir. 2008). However, if the district court declares a mistrial, the defendant may be

retried despite the right’s having attached. Dinitz, 424 U.S. at 606–07 (citing United States v.

Perez, 22 U.S. (9 Wheat.) 579, 580 (1824)). The district court may declare a mistrial either with

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the consent of the defendant or where “manifest necessity” existed. Id. at 607; see also Watkins

v. Kassulke, 90 F.3d 138, 141 (6th Cir. 1996). The government argues that both alternatives

were satisfied here, and therefore the double jeopardy bar does not apply.

1. Implied Consent

Neither Williamson nor his standby counsel explicitly consented to a mistrial. We may

imply the defendant’s consent to a mistrial based on his silence, but doing so is disfavored and

may only be done after “an especially careful examination of the totality of the circumstances”

that “positively indicate[] this silence was tantamount to consent.” Gantley, 172 F.3d at 428–29.

Here, the court raised the possibility of a mistrial, but granted a recess so the parties could

both confirm that Williamson was actually in the hospital and discuss the legal and strategic

implications of a mistrial. Of particular importance to the district court was the effect a mistrial

would have on Williamson’s co-defendant, Terrell Clark, who was to have been tried jointly.

The district court invited objection before granting the recess, and after returning from recess the

government—which supported the mistrial—asked the court to note any objections from defense

counsel before making its final ruling. Neither Clark, nor his counsel, nor Williamson’s standby

counsel objected to the mistrial, despite having had an opportunity to consider whether it should

be granted. This all supports a finding of implied consent. See id. at 429.

Williamson now argues that his standby counsel did not have authority to consent to the

mistrial on his behalf. Generally, consenting to a mistrial is a strategic decision that an attorney

can make without asking for the defendant’s input. Watkins, 90 F.3d at 143. But, by the district

court’s order, Williamson was representing himself at the time. It therefore seems doubtful,

under the circumstances, that standby counsel could consent to a mistrial, as his job was merely

to “aid the accused if and when the accused requests help, and to be available to represent the

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accused in the event that termination of the defendant’s self-representation is necessary.”

Faretta v. California, 422 U.S. 806, 834 n.46 (1975). Moreover, the district court did not

terminate Williamson’s self-representation when he failed to appear for trial. And Williamson’s

standby counsel explicitly disclaimed having had any instruction from or contact with

Williamson, and therefore stated before the recess that he had “no position” on whether a mistrial

should be granted. Thus, while the district court gave those present an adequate chance to

object, Williamson’s absence and his standby counsel’s apparent lack of authority to consent

lead us to find that there was no implied consent for the mistrial.

2. Manifest Necessity

Without the defendant’s consent, the mistrial was only permissible if “manifest

necessity” existed. See Dinitz, 424 U.S. at 607. “In determining whether a ‘manifest necessity’

exists, Courts need not find an absence of alternatives but only a ‘high degree’ of necessity.”

Klein v. Leis, 548 F.3d 425, 431 (6th Cir. 2008) (citing Ross v. Petro, 515 F.3d 653, 660–61 (6th

Cir. 2008)). We make this determination on a case by case basis in light of all the individual

facts and circumstances, while giving “considerable deference” to the trial court’s determination.

Johnson v. Karnes, 198 F.3d 589, 594–95 (6th Cir. 1999). The trial court is not required to make

an explicit, contemporary finding of manifest necessity, however, as long as the record provides

sufficient justification for the ruling. Arizona v. Washington, 434 U.S. 497, 516–17 (1978).

We have previously held that a trial court may permissibly declare a mistrial when new

circumstances require giving the defendant an extended continuance. For example, in Fulton v.

Moore, after the jury was impaneled and sworn, the prosecution became aware that the date

range alleged in the charging instrument was incorrect. 520 F.3d at 524. The trial court granted

the prosecution’s motion to amend the indictment, and declared a mistrial rather than granting an

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open-ended continuance to allow the defendant adequate time to prepare his case in light of the

changed indictment. Id. at 524–26. We found the record supported finding a high degree of

necessity for the mistrial. Id. at 531. We also found that the trial judge acted appropriately in

making his decision: he did not declare a mistrial abruptly, he implicitly considered a

continuance as an alternative remedy, and he allowed the parties to object. Id. at 530; see also

id. at 528 (discussing United States v. Jorn, 400 U.S. 470, 480–81 (1971)).

This case is similar. The district court here did not act abruptly: it raised the possibility

of a mistrial, and granted the parties an hour-long continuance to verify Williamson’s

whereabouts and discuss any legal and strategic issues. The court specifically requested input

from the parties, and after the government agreed that a mistrial was appropriate, it gave Clark’s

counsel and Williamson’s standby counsel an opportunity to object. The court also considered

alternatives, and declared a mistrial in an effort to ensure the efficient administration of justice in

this case. The district court expressed concern that Williamson had previously engaged in

dilatory tactics, thus suggesting that a mere continuance might not be a sufficient remedy if these

practices persisted. The court further expressed concern about the potential prejudicial effect of

a lengthy delay on Clark, Williamson’s co-defendant. The mistrial here merely “act[ed] as an

extended continuance” to accommodate the unexpected hospitalization of the defendant and

what was possibly an attempt to “sabotage the government’s case,” rather than being for some

impermissible purpose such as giving the government more time to strengthen its case. See

United States v. Stevens, 177 F.3d 579, 587–88 (6th Cir. 1999).

Finally, Williamson has not alleged any specific prejudice from the mistrial. See

Washington, 434 U.S. at 516 n.35. Almost four months passed after the hospitalization until

Williamson ultimately went to trial. While the district court could not have known that the delay

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would be this lengthy at the time it declared a mistrial, in hindsight such a long continuance

would not have been practicable. See Fulton, 520 F.3d at 530 (defendant could not show

prejudice because a continuance of six months was not a practicable alternative to declaring a

mistrial). The delay further allowed for new counsel to be appointed, just as Williamson had

requested before trial began, and obviating the need for Williamson to represent himself. Given

these circumstances, there is no evidence that Williamson was actually prejudiced in any way by

the delay.

B. Sufficiency of the Evidence

Williamson next challenges the sufficiency of the evidence as to all three of his

convictions. “We review sufficiency of the evidence challenges de novo to determine ‘whether,

after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact

could have found the essential elements of the crime beyond a reasonable doubt.’” United States

v. Mathis, 738 F.3d 719, 735 (6th Cir. 2013) (quoting Jackson v. Virginia, 443 U.S. 307, 319

(1979)). Williamson raised this issue in the district court through a Rule 29 motion for judgment

of acquittal, which the district court denied. We review the denial of the Rule 29 motion under

the same standard.1 Id. (citing United States v. Clay, 667 F.3d 689, 693 (6th Cir. 2012)). “In

making this determination, however, we may not reweigh the evidence, reevaluate the credibility

of witnesses, or substitute our judgment for that of the jury.” Id. (citing United States v.

Martinez, 430 F.3d 317, 330 (6th Cir. 2005)).

1
Williamson simultaneously moved for a new trial under Rule 33, which the district court also denied. We review
that ruling for abuse of discretion. United States v. Sypher, 684 F.3d 622, 626 (6th Cir. 2012). Because we find
Williamson’s convictions were supported by sufficient evidence, and nothing suggests they were against the great
weight of the evidence, there was no error in denying his motion for a new trial on that basis. See United States v.
Poandl, 612 F. App’x 356, 362–63 (6th Cir. 2015) (citing United States v. Ashworth, 836 F.2d 260, 266 (6th Cir.
1988)).

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United States v. Williamson

1. Drug Trafficking Conspiracy

Williamson raises two distinct challenges related to the evidence used to convict him of

conspiracy to possess with intent to distribute and to distribute cocaine and marijuana. See

21 U.S.C. §§ 841(a), 846. First, that the evidence did not show a conspiracy, but simply a

number of “buy-sell” transactions. Second, that the evidence at trial impermissibly varied from

the indictment because it showed, at best, several smaller conspiracies.

“To sustain a conviction for conspiracy under 21 U.S.C. § 846, the government must

have proved: (1) an agreement to violate drug laws, in this case 21 U.S.C. § 841[(a)];

(2) knowledge and intent to join the conspiracy; and (3) participation in the conspiracy.” United

States v. Deitz, 577 F.3d 672, 677 (6th Cir. 2009) (quoting United States v. Martinez, 430 F.3d

317, 330 (6th Cir. 2005)) (alteration omitted). “Proof of a formal agreement is not necessary.”

Id. (quoting Martinez, 430 F.3d at 330) (alteration omitted). Instead, “[t]he existence of a

conspiracy may be inferred from circumstantial evidence that can reasonably be interpreted as

participation in the common plan.” Id. (quoting United States v. Salgado, 250 F.3d 438, 447 (6th

Cir. 2001)).

Here, there was more than sufficient evidence for the jury to have found that Williamson

was involved in a single conspiracy. We have previously noted that a mere casual sale of drugs

does not necessarily connect a buyer of drugs to a distribution conspiracy, because the sale does

not necessarily prove the existence of an agreement. See id. at 680–81; United States v.

Anderson, 89 F.3d 1306, 1310–11 (6th Cir. 1996). We consider several factors in determining

whether a particular sale is part of a larger drug conspiracy, including: “the length of the

relationship” between buyer and seller, “the established method of payment,” “the extent to

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which transactions are standardized,” and “the level of mutual trust between the buyer and the

seller.” Deitz, 577 F.3d at 680–81.

The frequency and size of the transactions here, as well as the relationships between the

co-conspirators, allowed the jury to infer a conspiracy beyond mere “buyer-seller” relationships.

This drug trafficking organization operated for over a decade. Williamson regularly sent large

amounts of cash—hundreds of thousands or even millions of dollars—to his suppliers in

California and Arizona. In return, Williamson received several kilograms of cocaine or

marijuana per shipment. At least some of the transactions were done on credit, where the drugs

would be fronted and the proceeds from downstream sales remitted as payment. All this

suggests a large, ongoing drug distribution conspiracy rather than a mere casual sale of drugs.

Williamson also objects that a “buy-sell” instruction was not given to the jury, but we

find that “the proposed jury instruction did not substantially impair [his] defense.” United States

v. Dado, 759 F.3d 550, 568 (6th Cir. 2014). The trial evidence showed Williamson was the head

of a substantial cocaine and marijuana distribution operation, not a casual buyer of the sort

envisioned by our buyer-seller jurisprudence. Given such evidence, “[t]he inclusion of the

buyer-seller jury instruction would not only have been unnecessary, but it likely would have

been confusing to the jury.” Id. at 569.

The evidence presented also does not show a fatal variance from the indictment.

“A variance to the indictment occurs when the charging terms of the indictment are unchanged,

but the evidence at trial proves facts materially different from those alleged in the indictment.”

United States v. Caver, 470 F.3d 220, 235 (6th Cir. 2006). “In conspiracy cases, ‘a variance

constitutes reversible error only if the indictment alleged one conspiracy, but the evidence can

reasonably be construed only as supporting a finding of multiple conspiracies.’” United States v.

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Adams, 722 F.3d 788, 805–06 (6th Cir. 2013) (quoting Caver, 470 F.3d at 235–36) (alteration

omitted). In addition, the defendant must show that he was prejudiced by the variance. Caver,

470 F.3d at 235–36. Again, we review the evidence as to the number of conspiracies in the light

most favorable to the government, considering “the existence of a common goal, the nature of

the scheme, and the overlapping of the participants in various dealings.” United States v. Smith,

320 F.3d 647, 652 (6th Cir. 2003).

Williamson says there was no single overarching conspiracy in this case. Instead, he

argues that, at best, the evidence showed one conspiracy involving cocaine and a separate

conspiracy involving marijuana. However, several witnesses testified to assisting Williamson in

obtaining and distributing both marijuana and cocaine. Kendrah Smartt testified to taking cash

to California and bringing back cocaine, and taking cash to Arizona and bringing back

marijuana, all at Williamson’s direction. Anthony Edwards testified to regularly and repeatedly

helping Williamson obtain and distribute multiple kilograms of cocaine, and to knowing about

and assisting with marijuana transactions. The jury could reasonably infer that Williamson was

thus engaged in one large drug conspiracy, even if some of his associates worked solely on either

marijuana transactions or cocaine transactions. A single conspiracy is not converted to 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. Beals, 698 F.3d 248, 259 (6th Cir. 2012)

(quoting United States v. Warner, 690 F.2d 545, 549 (6th Cir. 1982)).

Furthermore, Williamson has not shown how the claimed variance was to his prejudice.

Williamson’s counsel argued the existence of separate conspiracies to the jury, and examined

witnesses as to the overlap between Williamson’s marijuana and cocaine businesses. Thus,

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Williamson’s ability to defend himself at trial was not impaired. See United States v. Hynes,

467 F.3d 951, 965 (6th Cir. 2006).

2. Money Laundering Conspiracy

Obtaining a conviction on the charge of conspiracy to commit money laundering required

the government to prove beyond a reasonable doubt that Williamson knowingly entered into an

agreement or understanding with at least one other person to commit money laundering.

18 U.S.C. § 1956(h); Whitfield v. United States, 543 U.S. 209, 212–14 (2005). So-called

“promotional” money laundering—the type of money laundering at issue in this case—is defined

as knowingly conducting “a financial transaction which in fact involves the proceeds of specified

unlawful activity . . . with the intent to promote the carrying on of specified unlawful activity.”

18 U.S.C. § 1956(a)(1)(A)(i). Using the cash obtained from selling drugs to buy more drugs for

resale can constitute money laundering, as it uses the proceeds of drug trafficking to promote

further drug trafficking. United States v. Skinner, 690 F.3d 772, 782 (6th Cir. 2012) (citing

United States v. Santos, 553 U.S. 507, 525–26 & n.3 (2008) (Stevens, J., concurring); United

States v. Smith, 601 F.3d 530, 544 (6th Cir. 2010)); see also United States v. Warshak, 631 F.3d

266, 317 (6th Cir. 2010) (describing this type of transaction as “[t]he paradigmatic example” of

“promotional” money laundering).

That is exactly what the evidence showed in this case. Williamson received payment for

selling drugs, and then arranged to have couriers like Kendrah Smartt and Doris Houchins

deliver cash to his suppliers in California and Arizona so he could buy more drugs from them.

Williamson himself was intercepted by law enforcement in Oklahoma with $1.5 million hidden

in secret compartments in a van on his way to one such delivery. Given the large amounts of

money transported and other evidence about Williamson’s drug trafficking operation, the jury

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could have reasonably inferred that this cash came from past drug sales. Williamson also

extended cocaine on credit to one dealer—Gregory Jackson—who sold the drugs in

Pennsylvania and then remitted a portion of his receipts to Williamson as payment so he could

buy more drugs. The jury thus could have reasonably found that Williamson had at various

times been on both sides of financial transactions using proceeds from drug sales to buy more

drugs.

3. Firearm Conspiracy

Finally, Williamson challenges the sufficiency of the evidence used to convict him of

conspiracy to possess a firearm in furtherance of drug trafficking. See 18 U.S.C. § 924(c). To

prove this crime, the government must establish an agreement to possess a firearm, and a

“specific nexus between the gun and the crime charged,” United States v. Mackey, 265 F.3d 457,

462 (6th Cir. 2001), here conspiracy to possess with the intent to distribute and to distribute

cocaine and marijuana. It is not necessary that the gun be brandished or used during the

commission of a drug offense, but it must “advance, promote, or facilitate the crime.” United

States v. Street, 614 F.3d 228, 236 (6th Cir. 2010) (quoting United States v. Paige, 470 F.3d 603,

609 (6th Cir. 2006)). Merely possessing a gun on the same premises as a drug transaction does

not itself suffice unless the government can establish this nexus. United States v. Barnes,

822 F.3d 914, 919 (6th Cir. 2016) (citing Mackey, 265 F.3d at 462). However, “a jury can

reasonably infer that firearms which are strategically located so as ‘to provide defense or

deterrence in furtherance of the drug trafficking’ are used in furtherance of a drug trafficking

crime.” United States v. Couch, 367 F.3d 557, 561 (6th Cir. 2004).

Williamson was connected to several guns at trial. First, a search of the van Williamson

was driving when stopped in Oklahoma in January 2005 uncovered $1.5 million in cash and two

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loaded handguns hidden in a secret compartment. Williamson and the other occupants of the van

were transporting the cash to California where they intended to use it to purchase cocaine. Drug

dealers often carry guns to protect themselves and their drugs or cash, suggesting that the

firearms found in the van were made readily available for the purpose of facilitating the planned

drug purchase. See Street, 614 F.3d at 236.

A loaded revolver was found underneath a chair during a 2011 search of the “lounge”

area of The Factory—the warehouse that served as Williamson’s base of operations. The search

also uncovered a plastic bag containing ammunition and firearms magazines. The jury heard

considerable testimony about drug transactions that took place at The Factory, and drug

paraphernalia was found during the search—including scales and materials to wrap packages of

marijuana. Again, drug dealers are well known to keep guns in the locations where they sell

drugs to protect themselves and their operation. See Couch, 367 F.3d at 561 (guns found in

defendant’s garage, where his drug transactions were known to occur and where evidence of

drug dealing was uncovered, could support a conviction under 18 U.S.C. § 924(c)). And

Williamson was the only person with a key to The Factory.

Additionally, two cooperating witnesses testified to their own interactions with

Williamson when he possessed or planned to possess firearms to further his drug trafficking

operation. Doris Houchins, Williamson’s ex-girlfriend and occasional courier, recounted an

incident where Williamson found some counterfeit bills among a stack of cash he had received

from a lower-level dealer. Houchins described driving Williamson to his sister’s house, where

he picked up a handgun, before continuing on to the dealer’s house where Williamson

confronted the dealer. The jury also heard a recorded phone call in which Anthony Edwards told

Williamson that he had hidden a bag containing three or four guns in his garage. Williamson

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planned to pick up the guns from Edwards the next day, but before he could do so, another co-

conspirator, Dennis Tate, disposed of them. Either of these incidents alone could have allowed

the jury to reasonably infer that Williamson agreed with his co-conspirators to possess firearms,

and that they did so for the purpose of furthering their drug trafficking enterprise.

C. Lay Opinion Testimony

Williamson next argues that one witness—Dwayne Robinson, a Detroit police officer—

inappropriately provided lay opinion testimony by interpreting the meaning of recorded phone

calls between co-conspirators. Because Williamson did not object to this testimony, we review

its admission for plain error. United States v. Martin, 520 F.3d 656, 658 (6th Cir. 2008); Fed. R.

Crim. P. 52(b). Under the plain error standard, we may reverse if Williamson shows (1) there

was error, (2) that was plain, (3) that affected a substantial right, and (4) that substantially

affected the fairness or integrity of the judicial proceedings. Martin, 520 F.3d at 658; see also

United States v. Olano, 507 U.S. 725, 732 (1993).

Robinson was a Detroit police officer who was assigned to the FBI’s violent gang and

violent crime task force. Along with a DEA officer, Robinson was in charge of the Williamson

investigation. In that role, Robinson personally surveilled Williamson, which included

monitoring live footage from the pole camera outside The Factory, listening to wiretaps, and

following vehicles that departed The Factory. He also coordinated the activities (including

surveillance) of other law enforcement officers.

At trial, Robinson testified about the investigation’s surveillance activities. Part of that

testimony included establishing a foundation for the government to introduce video recordings

from the pole camera outside The Factory, and wiretaps from phone calls between Williamson

and his co-conspirators. A portion of Robinson’s testimony centered on the January 2011

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incident when Williamson and Edwards sold four kilograms of cocaine to Jones, who in turn sold

it to Sheppard, who was subsequently arrested following a car chase. The police had tapped

Edwards’s phone, and recorded him talking to Jones and Williamson both before and after the

transaction. Robinson testified as to the meaning of these calls—both interpreting certain

ambiguous phrases, and opining on the import of the calls.

Williamson says that Robinson’s twice-made statement during this testimony that he

listened to “over thousands of phone calls” during the course of the investigation was

impermissible since the jury only heard a small number of those calls. Williamson says this

statement implied that Robinson could better understand the content of the calls than the jury

could, even though most of the calls were in plain English. When Robinson then “interpreted”

the meaning or import of the calls, he usurped the fact-finding function of the jury, according to

Williamson.

Federal Rule of Evidence 701 allows non-experts to give “testimony in the form of an

opinion” only to the extent the testimony “is: (a) rationally based on the witness’s perception;

(b) helpful to clearly understanding the witness’s testimony or to determining a fact in issue; and

(c) not based on scientific, technical, or other specialized knowledge within the scope of

[Federal] Rule [of Evidence] 702.” “The function of lay opinion testimony is to ‘describe

something that the jurors could not otherwise experience for themselves by drawing upon the

witness’s sensory and experiential observations that were made as a first-hand witness to a

particular event.’” United States v. Kilpatrick, 798 F.3d 365, 379 (6th Cir. 2015) (quoting

United States v. Freeman, 730 F.3d 590, 595–96 (6th Cir. 2013)). “Courts often qualify law

enforcement officers as expert witnesses under Rule 702 to interpret intercepted conversations

that use ‘slang, street language, and the jargon of the illegal drug trade.’ In contrast, when an

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officer is not qualified as an expert, the officer’s lay opinion is admissible ‘only when the law

enforcement officer is a participant in the conversation, has personal knowledge of the facts

being related in the conversation, or observed the conversations as they occurred.’” Id. (quoting

United States v. Peoples, 250 F.3d 630, 641 (8th Cir. 2001)). The burden is on the proponent of

the testimony—here, the government—to show the testimony meets the foundational

requirements of Rule 701. Freeman, 730 F.3d at 595–96.

We have previously criticized law enforcement officers who offer lay opinion testimony

to interpret recorded calls for a jury. In United States v. Freeman, the government’s case agent

reviewed approximately 23,000 calls between and among various defendants, and based on that

review gave opinion testimony about the meaning of 77 calls introduced at trial. We determined

that when an agent “provides interpretations of recorded conversations based on his knowledge

of the entire investigation,” he might impermissibly testify “based upon information not before

the jury,” which can lead the jury to think the agent has important knowledge about the case that

they do not. Id. at 596 (quoting United States v. Hampton, 718 F.3d 978, 982–83 (D.C. Cir.

2013)). In Freeman, the agent’s testimony was based not on his own first-hand observations, but

rather on the collective knowledge obtained by officers throughout the course of the

investigation. Id. at 596. He never specified any personal experiences that could have formed

the basis for his opinion, instead relying on speculation and hearsay, and thus “lacked the first-

hand knowledge required to lay a sufficient foundation for his testimony under Rule 701(a).” Id.

at 597. Furthermore, we found it was not helpful to the jury (under Rule 701(b)) to speculate or

“spoon-fe[e]d his interpretations of the phone calls and the government’s theory of the case to

the jury.” Id. Jurors are competent to understand the meaning of recorded conversations that use

“ordinary language.” Id. at 597–98. In Freeman, the agent “merely t[old] the jury what result to

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reach.” Id. at 597 (quoting McGowan v. Cooper Indus., Inc., 863 F.2d 1266, 1272 (6th Cir.

1988)). “At that point, his testimony is no longer evidence but becomes argument.” Id. at 598.

Unlike Freeman, in this case Robinson was intimately involved in the investigation of

Williamson. Although he testified that he had listened to “over thousands of phone calls” and

often used the pronoun “we” when discussing the investigation, he made clear his active role in

the surveillance. He listened to many of the calls as they were happening, spent hours watching

the live feed from the pole camera, personally interacted with witnesses and informants, and

coordinated a team of law enforcement officers carrying out the investigation. He had the first-

hand knowledge necessary to give lay opinion testimony. See Kilpatrick, 798 F.3d at 381

(distinguishing Freeman for similar reasons).

Much of Robinson’s opinion testimony as to these calls constituted permissible

identifications—explaining to the jury whom the voices on the calls belonged to, and what the

investigation had revealed their roles in Williamson’s enterprise to be. See id. at 383–84.

Williamson has not contested the accuracy of these identifications or descriptions, and therefore

has failed to show how these statements were prejudicial even if there were some error in

admitting them. See id.

Other parts of Robinson’s testimony constituted permissible interpretations of ambiguous

phrases. For example, he explained that the phrase “four of them” in one conversation meant

four kilograms of cocaine, that “32,5” meant the price was $32,500 per kilogram, and that the

phrase “splitting the pros” in a subsequent conversation indicated an intent to split the profits

from the sale. Robinson explained that he knew this based on the context of the conversation

and his personal experience in the investigation, including through simultaneous surveillance of

the conspirators and listening to their other intercepted phone calls. Williamson had access to all

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these recorded phone calls, and was free to challenge the accuracy of Robinson’s interpretation

of these ambiguous phrases through cross-examination. See id. at 383.

However, other parts of Robinson’s testimony crossed the line into impermissible

territory. Several times, the prosecutor asked Robinson to explain “the importance” or “the

significance” of a particular phone call he had just played for the jury, which led to Robinson

giving narrative statements about the content of the conversation and what the conspirators

accomplished with it. For example, he interpreted one call to be Jones and Edwards arguing

about the price of the cocaine. The government does not argue that the jury could not have

determined this for itself once Robinson identified the speakers. Similarly, Robinson

summarized the content of calls between Edwards and Williamson occurring after Sheppard had

been arrested, even though the government has not asserted that there was any coded language in

them. In one long exchange after a short recess, Robinson summarized all of the calls that had

been played to the jury up to that point, including opining about who was supplying cocaine to

whom, and on what terms. That egregious “spoon-feeding” of the government’s theory of the

case to the jury is exactly what Freeman warns against.

But even if the admission of these portions of Robinson’s testimony was plain error, it

was not substantially prejudicial. Edwards testified after Robinson about the calls he had

participated in, and his explanations for the calls square with Robinson’s summaries.

Furthermore, the overwhelming amount of other evidence about this particular incident—the

contemporaneous video surveillance showing the movements of Williamson; the cocaine seized

from Sheppard; the testimony from co-conspirators and other police officers involved in the

arrest—conclusively tied Williamson to this particular cocaine deal, and to the drug trafficking

enterprise as a whole. See United States v. Miller, 738 F.3d 361, 373–74 (D.C. Cir. 2013). And

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even if this one cocaine deal were excised from the trial, there would still be more than enough

evidence of other drug trafficking, money laundering, and firearms possession to have convicted

Williamson on all the charges.

Furthermore, the district court also provided an appropriate limiting instruction,

cautioning the jury about Robinson’s dual role as fact and opinion witness. See Sixth Cir.

Pattern Crim. Jury Instructions 7.03A (2015). In the jury instructions, the court explained that

Robinson “testified to both fact and opinions,” that they “don’t have to accept [his] opinion” and

that they should evaluate his credibility for both the facts and opinions he testified to. The court

further instructed that the weight they would give his testimony “should consider [his]

qualifications and how he reached his conclusions.” Lack of such an instruction may require

reversal, e.g., United States v. Lopez-Medina, 461 F.3d 724, 743–45 (6th Cir. 2006), but giving

this cautionary instruction does not necessarily cure error in admitting the testimony in the first

place. Still, it diminishes the likelihood that the jury erroneously relied on Robinson’s lay

opinion testimony in reaching its verdict.

In sum, the admission of most of Robinson’s testimony about these phone calls was not

plainly erroneous. And to the extent his testimony was improper under Rule 701, it was not

substantially prejudicial and thus does not satisfy the plain error standard.

D. Improper Vouching

Finally, Williamson claims the prosecutor impermissibly vouched for the credibility of a

cooperating witness by asking questions about the provision of her plea agreement requiring

truthful testimony in exchange for a possible lower sentence. The witness, Kendrah Smartt,

testified to having been a courier for Williamson, taking cash to California and Arizona and

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United States v. Williamson

bringing drugs back to Detroit from those states. After testifying about some of these trips

during direct examination, she and the prosecutor engaged in the following exchange:

Q: Now, let me ask you this. You signed a cooperation agreement and plead
guilty, right?
A: Yes.
Q: Now, under the cooperation agreement, is it your understanding that the
Government will let the Court know of your cooperation and testimony, right?
A: That’s my understanding.
Q: Right. Even though the Judge is right here, of course—
A: Exactly.
Q: —and sees you. And if you cooperate truthfully and testify truthfully, you
may get a lower sentence, correct?
A: Yes, I’m just here to tell the truth.
Q: Right. But you understand that it’s Judge O’Meara’s decision as to what your
sentence is?
A: Yes.
The written cooperation agreement was then admitted into evidence without objection.

A form of prosecutorial misconduct, “[i]mproper vouching occurs when a prosecutor

supports the credibility of a witness by indicating a personal belief in the witness’s credibility

thereby placing the prestige of the office of the United States Attorney behind that witness.”

United States v. Francis, 170 F.3d 546, 550 (6th Cir. 1999). If the prosecutor’s conduct was

improper, “we must determine whether the impropriety was sufficiently flagrant to warrant

reversal.” United States v. Reid, 625 F.3d 977, 982 (6th Cir. 2010). Because Williamson did not

object to the prosecutor’s questions, we review his claim of improper vouching for plain error.

United States v. Owens, 426 F.3d 800, 806 (6th Cir. 2005). Once again, reversal under this

standard requires Williamson to show (1) an error, (2) that is plain, (3) that affected a substantial

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United States v. Williamson

right, and (4) that substantially affected the fairness or integrity of the judicial proceedings. Id.;

see Olano, 507 U.S. at 732.

It is not improper vouching to tell the jury that the plea agreement contains a truthfulness

provision and that the court will ultimately select the witness’s sentence after evaluating her

truthfulness. Reid, 625 F.3d at 983–84. However, a “potential for impropriety

emerges . . . when a prosecutor explains that there is to be a recommendation to the witness’s

sentencing court whether the terms of the plea agreement has been adhered to,” as it may imply

the prosecutor knows whether the witness is lying. Francis, 170 F.3d at 550.

Because the prosecutor’s questions here clearly are not sufficiently flagrant to warrant

reversal, we need not decide if they constituted impermissible vouching. We consider four

factors in assessing flagrancy: “(1) whether the remarks tended to mislead the jury or to

prejudice the accused; (2) whether the remarks were isolated or extensive; (3) whether the

remarks were deliberately or accidentally placed before the jury; (4) the strength of the evidence

against the accused.” United States v. Fullerton, 187 F.3d 587, 592 (6th Cir. 1999) (citing

United States v. Carroll, 26 F.3d 1280, 1384–85 (6th Cir. 1994)).

The contested questions did not mislead the jury or prejudice Williamson. The

prosecutor permissibly noted that the court would select Smartt’s sentence. Additionally, the

questions were isolated—the prosecutor did not mention Smartt’s plea agreement during his

opening or closing statements.2 Cf., e.g., United States v. Wells, 623 F.3d 332, 342–44 (6th Cir.

2010); Carroll, 26 F.3d at 1387–89. Furthermore, Smartt’s testimony was only a piece of the

extensive evidence against Williamson, including the testimony of several other co-conspirators,

recorded surveillance, and seized physical evidence. See Wells, 623 F.3d at 344; Owens,

2
Of note, however, defense counsel did refer to Smartt’s plea agreement during his closing argument, to impeach
her credibility by suggesting that the cooperation provision gave her an incentive to lie.

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426 F.3d at 808. Accordingly, even if the prosecutor’s statement constituted improper vouching,

and that is a debatable point at best, because it was not flagrant no plain error occurred.

III. CONCLUSION

For these reasons, we affirm Williamson’s convictions.

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