United States v. Andre Watson

NOT RECOMMENDED FOR PUBLICATION
File Name: 21a0147n.06

No. 19-2311

UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT

FILED
UNITED STATES OF AMERICA, Mar 22, 2021
DEBORAH S. HUNT, Clerk
Plaintiff-Appellee,

v. ON APPEAL FROM THE UNITED
STATES DISTRICT COURT FOR
ANDRE WATSON, THE EASTERN DISTRICT OF
MICHIGAN
Defendant-Appellant.

BEFORE: CLAY, McKEAGUE, and MURPHY, Circuit Judges.

CLAY, Circuit Judge. Defendant Andre Watson was convicted by a jury on three counts:

(1) use of interstate commerce facilities in the commission of a murder-for-hire, in violation of

18 U.S.C. § 1958(a); (2) conspiracy to possess with intent to distribute controlled substances, in

violation of 21 U.S.C. §§ 846 and 841(1)(a); and (3) discharging a firearm during and in relation

to a drug trafficking crime causing death, in violation of 18 U.S.C. §§ 924(c)(1) and (j). On appeal,

Watson argues that § 1958(a) is unconstitutional as applied to him, that the district court provided

the jury with incorrect instructions on the § 1958(a) count, and that the evidence was insufficient

to sustain his convictions on the latter two counts. For the reasons set forth below, we AFFIRM

Watson’s convictions.

BACKGROUND

Darnell Bailey and Devin Wallace had been middle school friends. In 2013, they

coincidentally met in a Walmart, and Bailey learned that Wallace, who was a drug trafficker and
Case No. 19-2311, United States v. Watson

dealer, owed a significant drug debt. Bailey, who had previously been convicted of several fraud

schemes, then came up with a jointly operated tax fraud scheme that allowed Wallace to repay his

debt.

Bailey and Wallace then began another illegal venture. Many drug dealers have sufficient

cash to purchase or lease a car but lack the documented income required by car dealerships for

these transactions. Bailey and Wallace solved this market failure by fraudulently using the personal

information of Wallace’s drug addicted customers to procure cars from dealerships that they then

subleased to Wallace’s drug dealer clients. Bailey and Wallace usually obtained cars from

dealerships where they had a relationship with a salesperson—often the salesperson was one of

Wallace’s drug clients—because those salespeople would make the transaction easier by, for

example, overlooking missing or deficient paperwork. Although the enterprise was lucrative, there

was tension between Bailey and Wallace. According to Bailey, Wallace often “played a lot of

games” with money that strained their relationship. (Trial Tr., R. 282 at PageID# 3097.)

Meanwhile, Deaunta Belcher, who was Bailey’s cousin, was dealing drugs from a “dope

house” on Beniteau Street in Detroit. (Trial Tr., R. 277 at PageID## 2536–37.) Stephen Brown

sold drugs for Belcher, and, according to Bailey, Defendant Andre Watson served as an “enforcer”

for Belcher. (Trial Tr., R. 283 at PageID# 3230.) After a chance encounter between Wallace and

Belcher at a casino, Belcher was invited to join the car fraud scheme. Belcher’s value add was his

drug dealing contacts, which allowed the enterprise to expand beyond Wallace’s clients, as well

as his contacts at car dealerships. Bailey also hoped that Belcher’s “street reputation” would

encourage Wallace to stop playing games. (Trial Tr., R. 282 at PageID# 3104.) However,

according to Bailey, Wallace’s games with money did not stop, and Belcher did not get along with

Wallace either.

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Three incidents led to an escalation in the tension between Belcher and Wallace. First,

Wallace intentionally provided low quality heroin to Belcher. Another issue arose after Bailey and

Belcher purchased a couple of cars from a car dealership salesperson, who was one of Belcher’s

drug customers, “and sold them to a couple of Wallace people.” (Id. at PageID# 3108.) The

salesperson asked Bailey and Belcher to return the dealer license plates, and they called Wallace

with the request. But Wallace kept stalling and took “a week or two to return them.” (Id.) Bailey

and Belcher were angry about Wallace’s delay because they did not want to lose the dealership as

a source of cars, and Belcher did not want to lose the salesperson as a drug customer. Finally,

Wallace was indicted in federal court on drug charges. Following Belcher’s subsequent arrest on

state drug charges, Bailey and Belcher worried that Wallace was providing the government with

incriminating information against them, although they “figured out later on that it wasn’t him or

. . . wasn’t sure whether it was him or not.” (Id. at PageID# 3111.)

In May 2015, Bailey and Belcher drove to Zeidman’s pawnshop to meet with Watson and

Brown. Upon arriving, Bailey stayed in the car while Belcher offered Watson and Brown a house

and a car in exchange for killing Wallace. Bailey joined midway through the conversation and

Brown asked him “where could he find Wallace at” to murder him. (Id. at PageID# 3115.) After

the meeting at Zeidman’s, Bailey was supposed to meet Wallace at a strip club in Dearborn. While

Bailey went to a different strip club, Brown and Watson went to the Dearborn strip club to kill

Wallace, but he escaped.

On September 11, 2015, Belcher and Bailey met Wallace at a car dealership. At the

dealership, Bailey and Wallace “had an intense argument” about Belcher being at the dealership.

(Id. at PageID## 3118–19.) Belcher and Bailey then met at a gas station and discussed having

Wallace killed. As Belcher, Bailey, and Wallace had a previously scheduled meeting for that

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afternoon, Belcher called Brown and told him that Wallace was going to be downtown with Bailey

and that he would call back with more information. Brown then called Watson to let him know the

news. Later, Belcher called back and told Brown that the location for the meeting was the They

Say restaurant. Brown, Watson, and a third man, Billy Chambers, then drove towards the They

Say restaurant.

Bailey was the first to arrive at the restaurant and, at some point, Wallace called to say that

he was outside in his car. Bailey went to Wallace’s car and began talking to him. Belcher then

arrived with his daughter, but they left after a short time. Brown and Watson then received a call

from Belcher letting them know to look for Bailey because he was standing outside of Wallace’s

car talking to him. When they arrived, according to Brown and Chambers, Watson got out of the

car and shot Wallace. Responding law enforcement found Wallace dead in his car. At some later

point, Bailey gave $2,000 to Watson for the killing.

Watson was charged with (1) use of interstate commerce facilities in the commission of a

murder-for-hire, in violation of 18 U.S.C. § 1958(a); (2) conspiracy to possess with intent to

distribute controlled substances, in violation of 21 U.S.C. §§ 846 and 841(1)(a); and

(3) discharging a firearm during and in relation to a drug trafficking crime causing death, in

violation of 18 U.S.C. §§ 924(c)(1) and (j). After a fourteen day trial, the jury returned a guilty

verdict on all three counts. Watson received a mandatory life sentence for his conviction under

§ 1958(a), ten years of imprisonment for his conviction under §§ 846 and 841(1)(a), and another

mandatory life sentence for his conviction under §§ 924(c) and (j). This appeal follows.

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Case No. 19-2311, United States v. Watson

DISCUSSION

I. Constitutionality of § 1958(a) As Applied to Watson’s Conduct

Watson did not preserve this claim below, and “[t]his Court reviews unpreserved

constitutional claims for plain error.” United States v. Dubrule, 822 F.3d 866, 882 (6th Cir. 2016).

“To establish plain error, a defendant must demonstrate: ‘(1) error, (2) that was plain, and (3) that

affects substantial rights. If all three conditions are met, an appellate court may then exercise its

discretion to notice a forfeited error, but only if (4) the error seriously affected the fairness,

integrity or public reputation of the judicial proceedings.”’ United States v. Collins, 799 F.3d 554,

574–75 (6th Cir. 2015) (quoting United States v. Johnson, 488 F.3d 690, 697 (6th Cir. 2007)).

“Section 1958(a) is a jurisdictional statute allowing federal prosecutors to bring specific

types of state murder cases into federal court.” United States v. Johnson, 443 F. App’x 85, 97 (6th

Cir. 2011). To obtain a conviction under § 1958(a), the government was required to prove that

Watson: (1) used or caused another to use a facility of interstate commerce; (2) “with intent that a

murder be committed in violation of the laws of any State or the United States;” and (3) committed

the murder “as consideration for the receipt of, or as consideration for a promise or agreement to

pay, anything of pecuniary value.” 18 U.S.C. § 1958(a); see also United States v. Acierno,

579 F.3d 694, 699 (6th Cir. 2009). As to the first element, the Superseding Indictment alleged that

Watson “used and caused another to use a facility of interstate or foreign commerce, to wit: a

telephone.” (Superseding Indictment, R. 141 at PageID## 613–14.) Following the presentation of

evidence, the district court instructed the jury that a ‘“facility of interstate commerce’ includes . . .

the use of a cellular telephone.” (Trial Tr., R. 287 at PageID# 3828.)

Watson challenges § 1958(a)’s constitutionality to the extent that a cell phone can be

considered a facility of interstate commerce. The Constitution provides Congress with the

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authority to regulate “the instrumentalities of interstate commerce . . . ,”1 Taylor v. United States,

--- U.S. ---, 136 S. Ct. 2074, 2079 (2016) (quoting United States v. Lopez, 514 U.S. 549, 558–559

(1995)), and “[w]e invalidate statutes only if they bear no rational relationship to” this power,

United States v. Coleman, 675 F.3d 615, 619 (6th Cir. 2012) (citing United States v. Faasse, 265

F.3d 475, 481 (6th Cir. 2001) (en banc)). Watson nonetheless argues that a cell phone cannot be

included as an instrumentality of interstate commerce because “the risks of globally expansive

federal jurisdiction” due to the “ubiquitous nature” of cell phones “may warp traditional notions

of American federalism.” (Appellant Br. at 42, 46.)

However, “[o]ur caselaw unequivocally holds that ‘cellular telephones, even in the absence

of evidence that they were used to make interstate calls, [are] instrumentalities of interstate

commerce.”’ United States v. Dais, 559 F. App’x 438, 445 (6th Cir. 2014) (quoting United States

v. Weathers, 169 F.3d 336, 341 (6th Cir. 1999)); see also United States v. Willoughby, 742 F.3d

229, 240 (6th Cir. 2014) (“Willoughby’s cell phone is such an instrumentality.”) (overruled on

other grounds); United States v. Pina, 724 F. App’x 413, 422–23 (6th Cir. 2018); United States v.

Wise, 278 F. App’x 552, 561 (6th Cir. 2008).2 In fact, Watson concedes that there is no case law

supporting his position.3 Therefore, there was no plain error. See United States v. Al-Maliki,

1
Watson does not contest that “there exists ‘no meaningful distinction between the terms ‘facilities’
and ‘instrumentalities’ of interstate commerce.”’ United States v. Runyon, 707 F.3d 475, 489 (4th Cir. 2013)
(quoting United States v. Marek, 238 F.3d 310, 317 & n.26 (5th Cir. 2001) (en banc)).
2
Other circuits are in accord. See United States v. Montijo-Maysonet, 974 F.3d 34, 50 n.13 (1st Cir.
2020); United States v. Taplet, 776 F.3d 875, 882 (D.C. Cir. 2015) (holding that use of a cell phone “was
sufficient evidence to show that Taplet used a facility of interstate commerce with the intent to commit a
murder-for-hire.”); United States v. Morgan, 748 F.3d 1024, 1031–32 (10th Cir. 2014); United States v.
Mandel, 647 F.3d 710, 716 (7th Cir. 2011) (holding that the use of a cell phone satisfies the first element
of § 1958(a)); United States v. Evans, 476 F.3d 1176, 1180–81 (11th Cir. 2007); United States v. Giordano,
442 F.3d 30, 40 (2d Cir. 2006); United States v. Clayton, 108 F.3d 1114, 1117 (9th Cir. 1997).
3
Watson relies extensively on cases involving cell phones and the Fourth Amendment’s warrant
requirement. However, the Supreme Court’s Fourth Amendment jurisprudence does not limit Congress’s
power to regulate the instrumentalities of interstate commerce. In fact, “[n]owhere in Lopez or any other

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787 F.3d 784, 794 (6th Cir. 2015) (citing United States v. Woodruff, 735 F.3d 445, 450 (6th Cir.

2013)).

II. Jury Instructions Regarding the § 1958(a) Offense

Watson did not object to the district court’s jury instruction that he now argues was

erroneous and, in fact, his counsel expressly agreed with the district court’s proposed instruction.

Ordinarily, “[b]ecause [Watson] did not object to the jury instructions at trial, review is for plain

error.” United States v. Harvey, 653 F.3d 388, 395 (6th Cir. 2011) (citing United States v. Vasquez,

560 F.3d 461, 470 (6th Cir. 2009)). The government argues, however, that Watson’s challenge to

the jury instructions is unreviewable because this Court has held that “[a]n attorney cannot agree

in open court with a judge’s proposed course of conduct and then charge the court with error in

following that course.” United States v. Sloman, 909 F.2d 176, 182 (6th Cir. 1990). This Court

recently confronted this exact issue—whether an express agreement by trial counsel with the

district court’s jury instructions makes any challenge to those instructions unreviewable—and held

that “we need not declare a winner on the standard-of-review point” because the defendant’s

“claim fails even on plain-error review.” United States v. Buchanan, 933 F.3d 501, 509 (6th Cir.

2019). Because Watson’s claim also fails on plain error review, we similarly decline to decide this

standard of review dispute.

As to the second element of § 1958(a)—which requires the government to prove that

Watson had “intent that a murder be committed in violation of the laws of any State or the United

States”—Count I of the Superseding Indictment alleged that Watson had “intent that the murder

of Devin Wallace be committed in violation of the laws of the State of Michigan or the United

States.” (Superseding Indictment, R. 141 at PageID# 614.) When discussing the proposed jury

case has the Supreme Court limited Congress’s regulatory authority to prevent the harmful use of an
instrumentality of interstate commerce.” Morgan, 748 F.3d at 1032; see also Dais, 559 F. App’x at 445.

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instructions with counsel, in an effort to eliminate “stilted language,” the district court

recommended replacing the phrases “violation of Michigan law” and “first-degree murder in

Michigan” with “violation of law” and “murder as defined by the law.” (Trial Tr., R. 286 at

PageID# 3665.) Both sides agreed with the district court’s recommendation. Thus, when charging

the jury on the § 1958(a) offense, the district court explained that the jury had to conclude beyond

a reasonable doubt that Watson had “intent that a murder be committed in violation of the law.”

(Trial Tr., R. 287 at PageID# 3827.) The district court then provided the jury with the Michigan

Model Criminal Jury Instruction’s definition for first degree murder.

On appeal, Watson raises two issues with the district court’s instructions. First, Watson

contends that the district court’s definition of murder was flawed because it did not include the

element “that the killing was not justified, excused, or done under circumstances that reduce it to

a lesser crime.” Mich. Crim. J.I. 16.1(6). However, Watson never argued any defenses to his

murder of Wallace, and the model instruction provides that this element “may be omitted if there

is no evidence of justification or excuse, and the jury is not being instructed on manslaughter or

any offense less than manslaughter.” Id. n.4. Accordingly, the district court properly instructed the

jury on what constitutes murder in violation of Michigan law.

Second, Watson argues that the district court’s instructions constituted “an impermissible

amendment and variance” from the Superseding Indictment. (Appellant Br. at 55.) “An

amendment of the indictment occurs when the charging terms of the indictment are altered, either

literally or in effect, by prosecutor or court after the grand jury has last passed upon them. A

variance occurs when the charging terms of an indictment are left unaltered, but the evidence

offered at trial proves facts materially different from those alleged in the indictment.” Martin v.

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Kassulke, 970 F.2d 1539, 1542 (6th Cir. 1992) (quoting United States v. Ford, 872 F.2d 1231,

1235 (6th Cir. 1989)); see also United States v. Pritchett, 749 F.3d 417, 428 (6th Cir. 2014).

The Superseding Indictment charged Watson with violating § 1958(a) and alleged that he

had intent that Wallace’s murder “be committed in violation of the laws of the State of Michigan

or the United States.” (Superseding Indictment, R. 141 at PageID# 614.) The district court’s jury

instruction stated that Watson had to have had “intent that a murder be committed in violation of

the law,” and the law provided to the jury was the definition of murder under Michigan law. (Trial

Tr., R. 287 at PageID# 3827.) Therefore, both the Superseding Indictment and the jury instructions

required the government to prove that Watson had intent to murder Wallace in violation of

Michigan law. See United States v. Davis, 970 F.3d 650, 659 (6th Cir. 2020) (“The indictment did

not thereby charge a different offense . . .”). Accordingly, neither an amendment nor a variance

occurred in this case, and the district court’s jury instructions were not plain error.

III. Sufficiency of the Evidence

“We review a challenge to the sufficiency of the evidence supporting a criminal conviction

de novo.” Collins, 799 F.3d at 589 (citing Pritchett, 749 F.3d at 430). A defendant ‘“bears a very

heavy burden’ in his sufficiency of the evidence challenge to his conviction.” United States v.

Davis, 397 F.3d 340, 344 (6th Cir. 2005) (quoting United States v. Spearman, 186 F.3d 743, 746

(6th Cir. 1999)). “In addressing sufficiency of the evidence questions, this Court has long

recognized that we do not weigh the evidence, consider the credibility of witnesses or substitute

our judgment for that of the jury.” United States v. Hilliard, 11 F.3d 618, 620 (6th Cir. 1993)

(citing United States v. Evans, 883 F.2d 496, 501 (6th Cir. 1989)). Instead, “[i]n evaluating such a

challenge, we are tasked with determining ‘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

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the crime beyond a reasonable doubt.”’ Collins, 799 F.3d at 589 (quoting Jackson v. Virginia,

443 U.S. 307, 319 (1979)).

A. Count II

Count II of the Superseding Indictment charged Watson with conspiracy to possess with

intent to distribute controlled substances, in violation of 21 U.S.C. §§ 846 and 841(a)(1). “In order

to establish a drug conspiracy in violation of 21 U.S.C. § 846, the government must prove, beyond

a reasonable doubt, (1) an agreement to violate drug laws, (2) knowledge and intent to join the

conspiracy, and (3) participation in the conspiracy.” United States v. Powell, 847 F.3d 760, 780

(6th Cir. 2017) (cleaned up). “Once the existence of the conspiracy is proven, only slight evidence

is needed to connect a defendant to the conspiracy” and “knowledge and intent to join the

conspiracy may be inferred from [the defendant’s] conduct and established by circumstantial

evidence.” Id. (citations omitted).

Watson does not dispute that there was sufficient evidence that Belcher and Brown were

engaged in a conspiracy to distribute drugs. Instead, he argues that there were two separate

conspiracies: one revolving around cars and one around drugs. According to Watson, he did not

join the drug distribution conspiracy, and the evidence only proved his mere association with

Belcher and Brown.

However, even assuming that there were two separate conspiracies, there was sufficient

evidence for the jury to conclude that Watson knowingly and intentionally participated in the drug

distribution conspiracy. To be sure, as Watson argues, no evidence established that he personally

distributed drugs. However, Bailey’s testimony established that Watson served as Belcher’s

“enforcer.” (Trial Tr., R. 283 at PageID# 3230.) Watson argues that this testimony could mean that

he was an enforcer for Belcher’s car fraud activities and not his drug distribution activities. But

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Bailey testified that he saw Watson with a gun at the house on Beniteau Street that served as

Belcher’s drug distribution headquarters. This evidence was sufficient for a rational jury to

conclude beyond a reasonable doubt that Watson knowingly and intentionally participated in the

drug distribution activities as an enforcer. See United States v. Aviles-Colon, 536 F.3d 1, 18 (1st

Cir. 2008) (holding that evidence that a defendant was an “enforcer” was sufficient to convict him

for participating in a drug conspiracy). Moreover, Brown explained that the original purpose of

meeting Belcher at Zeidman’s was to purchase marijuana for resale purposes. As Watson drove

Brown to that meeting, the jury could infer that Watson was a participant in Belcher and Brown’s

drug distribution conspiracy. Accordingly, we affirm Watson’s conviction under §§ 846 and

841(a)(1).

B. Count III

Watson also argues that the evidence was insufficient to support his conviction on Count

III of the Superseding Indictment for using a firearm during and in relation to a drug trafficking

crime causing death, in violation of 18 U.S.C. §§ 924(c)(1) and (j). “To make out a violation of

§ 924(c)(1), the government must prove beyond a reasonable doubt that the defendant ‘(i) carried

or used a firearm; (ii) during and in relation to a drug trafficking crime.”’4 United States v. Cecil,

615 F.3d 678, 692–93 (6th Cir. 2010) (quoting United States v. Warwick, 167 F.3d 965, 971 (6th

Cir. 1999)). “To meet the ‘during and in relation to’ requirement, a firearm must have some

purpose or effect with respect to the drug trafficking crime, and at least must facilitate, or have the

potential of facilitating, the drug trafficking offense.” United States v. Layne, 192 F.3d 556, 571

(6th Cir. 1999) (cleaned up); see also Cecil, 615 F.3d at 693. “We analyze that purpose and effect

4
Section 924(j) provides for a penalty of death or life imprisonment when a violation of § 924(c)
results in the murder of a person “through the use of a firearm.” 18 U.S.C. § 924(j).

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in terms of the ‘totality of the circumstances surrounding the commission of the crime.’” United

States v. Ostrander, 411 F.3d 684, 692 (6th Cir. 2005) (quoting Warwick, 167 F.3d at 971).

Watson does not dispute that he used a firearm to murder Wallace. But he argues that there

was insufficient evidence showing that the murder was during and in relation to the drug

distribution conspiracy. He asserts that Belcher’s purpose for having Wallace murdered was to

facilitate the car fraud scheme, not the drug distribution conspiracy.5 However, even assuming the

existence of two separate conspiracies, there was ample evidence that the murder had a purpose,

at least in part, to further the drug trafficking activities. According to Bailey, one of the events

motivating Belcher to murder Wallace was Wallace providing him with low quality heroin.

Belcher was also angry about Wallace’s failure to return the dealer plates from the cars he and

Bailey purchased because he was worried that it would make him lose a drug customer. Therefore,

there was sufficient evidence for a rational juror to conclude that the murder was during and in

relation to the drug trafficking crime.6

CONCLUSION

For the reasons stated above, we AFFIRM Watson’s conviction on all counts.

5
Watson also argues that Belcher’s true purpose for ordering Wallace’s murder was the fear that
Wallace was cooperating with the Drug Enforcement Administration (“DEA”). However, trial testimony
established that Bailey and Belcher did not believe that Wallace was implicating them in any crimes.
Regardless, murdering Wallace to stop him from providing evidence to the DEA would have had the
purpose of facilitating the drug distribution conspiracy.
6
Watson argues that he lacked knowledge that the purpose of Wallace’s murder was to further the
drug trafficking activity. However, to sustain a conviction under § 924(c)(1), the government must only
prove: (1) that the defendant committed a drug trafficking crime; (2) “[t]hat the defendant knowingly used
or carried a firearm”; and (3) “[t]hat the use or carrying of the firearm was during and in relation to the
[drug trafficking] crime”—mens rea is only required for the underlying drug trafficking crime and the use
or carrying of a firearm. Sixth Circuit Pattern Jury Instructions, § 12.02; see also United States v. Brown,
915 F.2d 219, 224–25 (6th Cir. 1990).

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