United States v. Earl Clayton, III

NOT RECOMMENDED FOR PUBLICATION
File Name: 21a0362n.06

Nos. 19-5077/5142

UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT FILED
Jul 23, 2021
DEBORAH S. HUNT, Clerk
UNITED STATES OF AMERICA, )
)
Plaintiff-Appellee, ) ON APPEAL FROM THE
) UNITED STATES DISTRICT
v. ) COURT FOR THE WESTERN
) DISTRICT OF KENTUCKY
EARL CLAYTON, III, )
)
OPINION
Defendant-Appellant. )
)
)

Before: MOORE, CLAY, and STRANCH, Circuit Judges.

CLAY, Circuit Judge. Defendant Earl Clayton III (“Defendant” or “Clayton III”) was

convicted by a jury of conspiracy to possess with intent to distribute 100 grams or more of heroin,

in violation of 21 U.S.C. §§ 846 and 841(a)(1), (b)(1)(B), and being a felon in possession of a

firearm, in violation of 18 U.S.C. § 922(g)(1). The district court determined that Defendant was a

career offender and sentenced him to 360 months of incarceration. The district court also revoked

Defendant’s supervised release and added twenty-four months to his sentence because he had

committed a crime while under supervision. Defendant appeals his convictions and the revocation

of his supervised release. Defendant argues that the district court erred in denying his motion to

suppress because the police lacked reasonable suspicion to stop his vehicle on the day of his arrest.

Defendant also contends that he is entitled to a new trial because of an erroneous supplemental

instruction on deadlocked juries, various evidentiary errors, and prosecutorial misconduct in

closing argument. We AFFIRM.
Nos. 19-5077/5142, United States v. Earl Clayton, III

BACKGROUND

Factual Background

Defendant Earl Clayton III was arrested on November 24, 2015 after a Federal Bureau of

Investigation High Intensity Drug Trafficking Area task force had been investigating his son, Earl

Clayton IV (“Clayton IV”), for over a year. The day before, task force officer Detective Kevin

McKinney obtained a search warrant for Clayton IV’s house based on surveillance of Clayton IV

and the fact that there had been numerous controlled purchases of heroin from the home since

October 2014, one of which had been made within the previous forty-eight hours.

The morning of November 24, 2015, Detective McKinney did a spot check of the residence

prior to the execution of the search warrant. At that time, he saw a white Chevrolet Monte Carlo

in the driveway and Defendant at the back door of the home.

Later that morning, Detective McKinney returned to Clayton IV’s home with a special

weapons and tactics (“S.W.A.T.”) team to execute the search warrant. As the S.W.A.T. team was

approaching the residence, McKinney observed the Monte Carlo driving toward the house, and it

appeared to him that Defendant was driving the vehicle. When the police were next door to Clayton

IV’s house and Defendant’s car was about four or five houses down, Detective McKinney saw the

Monte Carlo reverse at a high rate of speed away from the home. Detective McKinney then radioed

other officers to stop the vehicle.

Detective McKinney eventually went to the scene of Defendant’s stopped vehicle, read

Defendant his rights, and took him to Clayton IV’s home. A handgun was found in the vehicle. At

the home, officers found heroin and electronic scales. At that point, Defendant was arrested.

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Procedural Background

Defendant and his son, Clayton IV, were initially charged as co-defendants in a drug

conspiracy. Defendant moved to suppress certain evidence, including evidence obtained as a result

of the November 24, 2015 stop, arguing that the police lacked reasonable suspicion to detain him.

The district court denied the motion.

On December 4, 2017, Clayton IV reached a plea agreement with the prosecution and

would later testify as a government witness at his father’s trial. The next day, Defendant was

charged in a single-defendant second superseding indictment with conspiracy to possess with

intent to distribute 100 grams or more of heroin, in violation of 21 U.S.C. §§ 846 and 841(a)(1),

(b)(1)(B), as well as being a felon in possession of a firearm, in violation of 18 U.S.C. § 922(g)(1).

Defendant’s trial began on February 5, 2018. The district court elected to try the two counts

in one bifurcated trial, with the jury receiving evidence as to Defendant’s criminal history only in

the second phase of trial concerning the felon in possession charge. However, the district court

allowed the government to introduce evidence of the firearm that was found in the vehicle in the

first phase of trial, which related to the drug conspiracy charge. Defendant was convicted on the

drug conspiracy charge on February 8, 2018. The trial then proceeded to the felon in possession

count, and Defendant was convicted on that charge as well.

At a sentencing hearing on January 11, 2019, Defendant was determined to be a career

offender under the sentencing guidelines, and was sentenced to 360 months of imprisonment.

Defendant timely appealed.

The district court also determined that Defendant had violated the terms of his supervised

release by committing a federal, state, or local crime. Accordingly, the district court revoked his

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supervised release and sentenced Defendant to a prison term of fifty-one months, twenty-four of

those months to be served consecutively to his 360-month sentence in the underlying criminal

case. Defendant timely appealed the order revoking his supervised release.

DISCUSSION

I. Motion to Suppress

The district court properly denied Defendant’s motion to suppress evidence obtained as a

result of his seizure by police on November 24, 2015 because the police had reasonable suspicion

to stop Defendant’s vehicle.

A. Standard of Review

“When reviewing a denial of a motion to suppress, the district court’s factual

determinations are reviewed for clear error and its legal conclusions are reviewed de novo.” United

States v. Pacheco, 841 F.3d 384, 389 (6th Cir. 2016). “Whether an officer had reasonable suspicion

under the circumstances is a mixed question of law and fact that we review de novo.” United States

v. Stepp, 680 F.3d 651, 660 (6th Cir. 2012). We view the evidence in the light mostly likely to

support the district court’s decision. United States v. Abernathy, 843 F.3d 243, 250 (6th Cir. 2016).

B. Reasonable Suspicion

Officers had reasonable suspicion to stop Defendant’s car based on prior information they

had received about Defendant’s involvement in drug trafficking and their observations of his

conduct on November 24, 2015.

An officer’s decision to initiate a traffic stop and the scope of any subsequent search are

reviewed “under the principles set forth in Terry v. Ohio, 392 U.S. 1 (1968).” Stepp, 680 F.3d at

661. In this case, Defendant challenges only “whether there was a proper basis for the stop.” Id.

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(quoting United States v. Davis, 430 F.3d 345, 354 (6th Cir. 2005)). “[T]he reasonable suspicion

standard governs the legality of traffic stops when the suspected violation is a criminal offense

rather than a civil infraction.” United States v. Sanford, 476 F.3d 391, 394 (6th Cir. 2007).1 As

Detective McKinney’s testimony at the suppression hearing made clear, he requested that officers

stop Defendant’s vehicle because he suspected that Defendant was involved in drug trafficking,

not because he had committed a traffic violation.

“Under [the Supreme] Court’s precedents, the Fourth Amendment permits an officer to

initiate a brief investigative traffic stop when he has ‘a particularized and objective basis for

suspecting the particular person stopped of criminal activity.’” Kansas v. Glover, 140 S. Ct. 1183,

1187 (2020) (quoting United States v. Cortez, 449 U.S. 411, 417–18 (1981)). Whether officers had

reasonable suspicion to stop an individual is determined under the totality of the circumstances.

United States v. Sheckles, 996 F.3d 330, 343 (6th Cir. 2021).

As an initial matter, Defendant appears to suggest that, because Officers Nathan Cary and

Todd Jensen, who actually stopped his vehicle, did so solely on the basis of a request from

Detective McKinney, the requisite reasonable suspicion to justify the seizure was lacking.

However, the government correctly points out that this Court “impute[s] collective knowledge

among multiple law enforcement agencies, even when the evidence demonstrates that the

responding officer was wholly unaware of the specific facts that established reasonable suspicion

for the stop.” United States v. Lyons, 687 F.3d 754, 766 (6th Cir. 2012). Accordingly, the relevant

question in this case is whether Detective McKinney, who directed his colleagues to stop the white

1
There appears to be an outstanding question in this Circuit as to whether the probable cause standard applies
to suspected completed traffic violations, but that issue is not presented by the facts here and need not be considered.
See United States v. Shelton, 817 F. App’x 217, 219 & n.2 (6th Cir. 2020).

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Monte Carlo, had “a particularized and objective basis for suspecting the particular person stopped

of criminal activity.” Glover, 140 S. Ct. at 1187 (quoting Cortez, 449 U.S. at 417–18).

The district court correctly found that Detective McKinney had such a basis in its order

denying Defendant’s motion to suppress. As McKinney testified at the suppression hearing, he had

observed Defendant make a short stop that morning at a home where McKinney knew heroin had

been purchased within the past few days. According to Detective McKinney, a short stay indicated

a probable narcotics transaction. Later, Detective McKinney saw Defendant’s vehicle approach

the home again, but then back up at a high rate of speed within sight of S.W.A.T. officers preparing

to execute a search warrant. Detective McKinney could see that Defendant was driving the car,

and he knew that Defendant was the father of the person police suspected of selling drugs out of

the home. Detective McKinney also knew that Defendant had a history of drug trafficking.

Moreover, from prior purchases of heroin from Clayton IV, the police had gained knowledge that

Defendant was involved in the particular drug trafficking they were investigating. It was on the

basis of all these factors that Detective McKinney had Defendant’s vehicle stopped. The district

court’s opinion thoroughly explained why all of the factors relied upon by Detective McKinney—

evasive behavior, location, criminal history—can properly form the basis of a reasonable suspicion

of criminal activity.

None of Defendant’s arguments demonstrate error in the district court’s analysis.

Defendant correctly points out that criminal history alone is insufficient to give rise to reasonable

suspicion, but that is not what happened in this case. Instead, as discussed above, Defendant’s

history of drug crimes was only one factor in “the totality of the circumstances [that]

demonstrate[d] a reasonable suspicion that criminal activity was afoot.” Stepp, 680 F.3d at 667.

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In fact, in Stepp, the case that Defendant cites for the proposition that criminal history alone is not

sufficient to give rise to reasonable suspicion, this Court observed that “the criminal history reports

. . . were specific and related to the same suspicions that the officer was developing—that the

occupants of the vehicle might be involved in drug trafficking,” and we “agree[d] that the specific

nature of [the defendants’] criminal histories—involvement with narcotics—casts a suspicious

light . . . .” Id. That logic is fully applicable in this case where Detective McKinney was

investigating a drug crime and partially based his reasonable suspicion determination on

Defendant’s prior history of drug crimes.

Second, Defendant asserts that Detective McKinney lacked an objective basis for

suspecting that Defendant was involved in Clayton IV’s drug trafficking. However, Detective

McKinney testified that while no controlled heroin purchases had been made from Defendant

directly, Clayton III had been mentioned during prior sales as a facilitator of the heroin transaction.

This is an objective basis for McKinney’s suspicion that Defendant was involved in Clayton IV’s

drug trafficking.

Third, Defendant challenges Detective McKinney’s reliance on the so-called “traffic

violation”—Defendant’s rapidly backing up his vehicle once he could see the S.W.A.T. team

preparing to execute a warrant on his son’s home. Defendant accurately quotes United States v.

Lott, 954 F.3d 919 (6th Cir. 2020), in his brief for the point that “nervous behavior alone is legally

insufficient to establish [] reasonable suspicion.” Id. at 923. But Lott does not help Defendant

because Detective McKinney’s reasonable suspicion determination was not based on what

Defendant characterizes as nervous behavior, nor on that factor alone. Rather, Detective McKinney

considered, as the government emphasizes, Defendant’s “unprovoked flight upon noticing the

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police,” in addition to the other factors discussed in this section. Illinois v. Wardlow, 528 U.S. 119,

124 (2000).

Finally, Defendant suggests that, because Detective McKinney knew that Defendant was

the father of the resident of the home to be searched, Defendant’s visits could not support a

reasonable suspicion determination. However, Detective McKinney explained that Defendant’s

short stay was suggestive of a drug transaction. The reasonable suspicion inquiry “allows officers

to draw on their own experience and specialized training to make inferences from and deductions

about the cumulative information available to them . . . .” United States v. Arvizu, 534 U.S. 266,

273 (2002). Defendant provides no reason to disturb Detective McKinney’s professional judgment

that Defendant’s visits to his son’s home on November 24, 2015 were indicative of drug trafficking

rather than made for purely familial purposes.

This Court has found that police had reasonable suspicion to stop defendants in factual

scenarios very similar to those presented here. See, e.g., Sheckles, 996 F.3d at 344 (finding police

had basis to stop the defendant as he was leaving an apartment that the police were in the process

of obtaining a search warrant for, when police had information that the defendant was involved in

the drug sales at the property to be searched and that the defendant had a prior felony drug

conviction). On the other hand, Defendant does not explain how the cases discussed in his reply

brief, United States v. Townsend, 305 F.3d 537 (6th Cir. 2002), and United States v. Johnson,

620 F.3d 685 (6th Cir. 2010), where we found the police lacked reasonable suspicion, apply to the

facts of his case. The district court did not err in concluding the police had reasonable suspicion to

stop Defendant’s vehicle on November 24, 2015 and properly denied Defendant’s motion to

suppress.

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II. Supplemental Jury Instruction

The district court’s response to a jury question about what would happen if the jurors were

deadlocked was not plain error, contrary to Defendant’s argument on appeal.

A. Standard of Review

Because Defendant did not object to the district court’s response to the jury’s inquiry, this

claim is reviewed for plain error. United States v. Ray, 803 F.3d 244, 277 (6th Cir. 2015); see also

United States v. Brika, 416 F.3d 514, 519 (6th Cir. 2005) (reviewing Allen charge for plain error

when there was no objection before the district court). The government’s argument that Defendant

waived any appeal of the supplemental jury instruction because he agreed to the instruction is

primarily based on this Court’s interpretation of Michigan law in Tackett v. Trierweiler, 956 F.3d

358, 371 (6th Cir. 2020), under 28 U.S.C. § 2254, which has no application to this case where

Defendant was tried in a federal district court. To the extent that our precedent is unclear as to

whether trial counsel’s agreement with a judge’s proposed course of conduct renders Defendant’s

challenge to the supplemental instruction unreviewable, see United States v. Sloman, 909 F.2d

176, 182 (6th Cir. 1990), “we need not declare a winner on the standard-of-review point” because

Defendant’s challenge “fails even on plain-error review.” United States v. Buchanan, 933 F.3d

501, 509 (6th Cir. 2019).

Under plain error analysis, a defendant must demonstrate: “(1) error; (2) that was plain;

(3) that affected a substantial right and that seriously affected the fairness, integrity, or public

reputation of the judicial proceedings.” United States v. Sherrill, 972 F.3d 752, 762 (6th Cir. 2020)

(quoting United States v. Fields, 763 F.3d 443, 456 (6th Cir. 2014)). In order to demonstrate that

a substantial right was affected, a defendant is required to “‘show a reasonable probability that,

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but for the error,’ the outcome of the proceeding would have been different.” Molina-Martinez v.

United States, 136 S. Ct. 1338, 1343 (2016) (quoting United States v. Dominguez Benitez, 542 U.S.

74, 76 (2004)). “In the context of challenges to jury instructions, plain error requires a finding that,

taken as a whole, the jury instructions were so clearly erroneous as to likely produce a grave

miscarriage of justice.” United States v. Small, 988 F.3d 241, 254 (6th Cir. 2021) (quoting United

States v. Newsom, 452 F.3d 593, 605 (6th Cir. 2006)). “The propriety of a supplemental instruction

must be measured ‘by whether it fairly responds to the jury’s inquiry without creating . . .

prejudice.” Id. (alteration in original) (quoting United States v. Giacalone, 588 F.2d 1158, 1166

(6th Cir. 1978)).

B. District Court’s Response to Jury Question About Deadlock

The district court’s response to a jury question about what would happen if they were

deadlocked was not plain error.

Approximately four hours after deliberations began on the drug conspiracy charge, the jury

submitted a note to the district court asking, “What happens if there is a hung jury?” (2/8/18 Trial

Tr., R. 147, Page ID #1090.)2 The district court was “careful to note the jury’s not reported that it

is hung. They are asking what happens if they are. So I propose to bring them into the courtroom

and tell them that I have the note and they’ve inquired as to what happens if there is a hung jury.”

(Id.) The district court further proposed that it “would say that if the jury is unable to reach a

unanimous verdict, that needs to be reported to the Court and that the case may be tried again.

That’s a snippet from the Allen charge. I’m not going to give them an Allen charge unless they

2
Record citations in this opinion are to No. 15-cr-153 (W.D. Ky.), the criminal case that went to trial, and
not No. 09-cr-25 (W.D. Ky.), the case for which Defendant’s supervised release was revoked.

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report they are hung.” (Id.) The court then confirmed that the jury had been deliberating between

four and four-and-a-half hours and suggested that it “would say, ‘Go ahead and go back to the jury

room and continue your deliberations.’” (Id.) The district court also clarified that the parties and

the court could reconsider what to do if the jury reported they were hung at some later time.

Counsel for the government and Defendant agreed with the court’s proposal.

After the jury returned to the courtroom, the district court read the jury note out loud and

reminded the jurors that “it is your duty as jurors to discuss this case with one another in an effort

to reach agreement if you can do so. So that is your duty here, as I’ve also mentioned, deciding the

case for yourself, full consideration of the evidence with other members of the jury, etcetera.” (Id.

at Page IDs ##1091–92.)

The district court then stated, “I want you to go back and continue your deliberations. If

there is a hung jury—the question is ‘What happens if there is a hung jury?’ Well, that would be

reported to the Court. You would let us know that you’re hung, and if you were, then we would

likely poll each of you to see if you agree that the jury is hung and the case may be tried again. So

go ahead and go on back to the jury room and continue your deliberations.” (Id. at Page ID #1092.)

Twelve minutes later, the jury returned a unanimous guilty verdict on the drug conspiracy charge.

Defendant claims that the district judge’s response to the jury’s question improperly

directed a guilty verdict. The Supreme Court endorsed the use of instructions, within limits, “to

‘blast’ a deadlocked jury into rendering a unanimous verdict” in Allen v. United States, 164 U.S.

492 (1896). United States v. Clinton, 338 F.3d 483, 487 (6th Cir. 2003). A so-called “Allen charge”

instructs “a potentially deadlocked jury to continue their deliberations and reconsider each other’s

views in good faith.” United States v. Robinson, 872 F.3d 760, 772 (6th Cir. 2017).

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Defendant’s main argument that the supplemental instruction regarding deadlocked juries

entitles him to a new trial is that the district court failed to deliver Sixth Circuit Model Criminal

Jury Instruction 9.04. As a factual matter, it is true that the district court did not deliver the model

instruction on deadlocked juries. Instead, the court repeated its previous instruction that the jurors

had an obligation to discuss and consider the case with each other to reach an agreement on the

verdict if they were able to do so and gave a “snippet from the Allen charge” that if the jury was

hung, the case might be tried again. (2/8/18 Trial Tr., R. 147, Page IDs ##1090–92.) But according

to Defendant’s own arguments, an Allen charge would not have been appropriate in this case.

Defendant recognizes that the Sixth Circuit model Allen charge can be given when the jury informs

the court that it is deadlocked. See United States v. Roach, 502 F.3d 425, 440 (6th Cir. 2007). Here,

the district court was careful to note that the jury had not reported that it was hung and that it was

“not going to give them an Allen charge unless they report that they are hung.” (2/8/18 Trial Tr.,

R. 147, Page ID #1090.) Even if Defendant had objected to the district court’s supplemental jury

instruction, the decision to deliver an Allen charge is reviewed for abuse of discretion since “the

presiding judicial officer is in the best position to decide when to give the charge . . . .” United

States v. Frost, 125 F.3d 346, 373 (6th Cir. 1997) (alteration in original) (quoting United States v.

Sawyers, 902 F.2d 1217, 1220 (6th Cir. 1990)). Defendant does not argue or demonstrate that the

district court abused its discretion in determining that the jury had not reported it was deadlocked

and declining to deliver an Allen charge. See also United States v. Fisher, 648 F.3d 442, 447 (6th

Cir. 2011) (“A district court, however, should refrain from straying beyond the purpose of jury

instructions by answering jury questions that seek collateral or inappropriate advice.”).

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The other challenges to the supplemental jury instruction are equally unavailing. Defendant

emphasizes that the district court’s response was incomplete because while it said the case could

be tried again if the jury was deadlocked, the supplemental instruction did not tell the jury that

another jury would be empaneled for that trial. Defendant’s speculative hypothesis that the jury

voted to convict because they did not want to hear the case again does not show the “‘reasonable

probability that, but for the error,’ the outcome of the proceeding would have been different,” that

Defendant is required to demonstrate under plain error review. Molina-Martinez, 136 S. Ct. at

1343 (quoting Dominguez Benitez, 542 U.S. at 76). Defendant also claims that the jury members

were not told that they should not be afraid to reconsider their positions. However, the district

court reminded the jury of their duty to discuss the case and evaluate the evidence with the other

jury members and to continue their deliberations. Defendant does not explain how the district

court’s failure to use the language he suggests on appeal was incorrect, let alone plain error. See

Small, 988 F.3d at 253 (describing how a jury instruction would not justify reversal, even if

objected to and reviewed for abuse of discretion, if it was substantially accurate).

Defendant also asserts that the district court erred by telling the jury that if they reported

they were hung, they would be polled to determine whether the panel members agreed that the jury

was deadlocked. To clarify, the jury was never polled, and it is also far from clear that such polling

would be inappropriate. In Lowenfield v. Phelps, 484 U.S. 231 (1988), the Supreme Court

reviewed on habeas a state jury trial in which the judge had individually polled the jury as to

whether they believed or felt further deliberations would be helpful in reaching a verdict.

Lowenfield recognized that the Supreme Court had previously reversed a conviction in Brasfield

v. United States, 272 U.S. 448 (1926), after the trial court had inquired as to how the jury was

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divided on guilt. However, Lowenfield distinguished the judicial inquiries of the jury in the two

cases: “Here the inquiry as to the numerical division of the jury was not as to how they stood on

the merits of the verdict, but how they stood on the question of whether further deliberations might

assist them in returning a verdict. There is no reason why those who may have been in the minority

on the merits would necessarily conclude that further deliberation would not be helpful or that

those in the majority would necessarily conclude otherwise.” Lowenfield, 484 U.S. at 240; see also

Brown v. Bradshaw, 531 F.3d 433, 437 (6th Cir. 2008) (recognizing that Supreme Court held in

Lowenfield that polling the jury as to whether further deliberations would be helpful was

permissible). In Lowenfield, the Supreme Court recognized that some combination of polling and

supplemental instructions to continue deliberations was not coercive. Accordingly, Defendant has

not shown that the district court’s declaration that it would poll the jury as to whether they agreed

they were deadlocked if they reported they were hung was an erroneous statement of law.

Lowenfield also forecloses Defendant’s claim that he can easily show the district court’s

supplemental instruction affected his substantial rights, as required under plain error review,

because the jury delivered a verdict within twelve minutes of its delivery. Thirty minutes after the

trial court in Lowenfield gave the contested instruction, the jury reached a verdict sentencing the

petitioner to death. Lowenfield, 484 U.S. at 235, 240. The Supreme Court found relevant “that

defense counsel did not object to either the polls or the supplemental instruction,” inferring that

“such an omission indicates that the potential for coercion argued now was not apparent to one on

the spot.” Id. at 240. The Supreme Court’s analysis demonstrates that Defendant’s assertion that

he can easily show coercion because of the short time period between the instruction and the

verdict is misplaced. See also Small, 988 F.3d at 255 (concluding that fact that jury reached guilty

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verdict shortly after challenged supplemental instruction is insufficient to demonstrate prejudice,

“much less a grave miscarriage of justice”).

III. Evidentiary Claims

Considered individually or in combination, none of the evidentiary rulings challenged by

Defendant justify reversing the district court’s judgment and granting his request for a new trial.

The fact that Defendant failed to respond to the government’s arguments on appeal in his reply

brief “only underscores the point.” Williams v. WCI Steel Co., 170 F.3d 598, 607 (6th Cir. 1999)

(per curiam).

A. Standard of Review

The Court “generally review[s] evidentiary rulings for abuse of discretion. An abuse of

discretion occurs when the district court relies on clearly erroneous facts, uses an erroneous legal

standard, or improperly applies the law.” United States v. Hazelwood, 979 F.3d 398, 408 (6th Cir.

2020) (citations omitted).3 “[R]eversal is appropriate only if the abuse of discretion was not

harmless error, that is, only if the erroneous evidentiary ruling affected the outcome of the trial.”

United States v. Morales, 687 F.3d 697, 702 (6th Cir. 2012) (quoting United States v. Marrero,

651 F.3d 453, 471 (6th Cir. 2011)). As relevant here, “[t]he wrongful admission of evidence of

prior bad acts constitutes harmless error ‘if the record of evidence of guilt is overwhelming,

eliminating any fair assurance that the conviction was substantially swayed by the error.’” United

States v. Brown, 888 F.3d 829, 836 (6th Cir. 2018) (quoting United States v. Clay, 667 F.3d 689,

700 (6th Cir. 2012)).

“There is some turmoil in this circuit when it comes to reviewing Rule 404(b) rulings.” Hazelwood, 979
3

F.3d at 408. However, for the reasons explained below, that issue need not be resolved in this case.

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Defendant did not challenge the admission of Clayton IV’s plea agreement into evidence

before the district court. “When a defendant fails to object at trial, we review an evidentiary ruling

for plain error.” United States v. Kilpatrick, 798 F.3d 365, 378 (6th Cir. 2015).

The government argues that Defendant did not preserve his challenge to testimony about

his prior incarceration because his trial counsel did not specifically invoke Federal Rule of

Evidence 404(b), which generally bars the admission of other act evidence. The government’s

brief suggests that trial counsel only objected because the question on cross-examination that

elicited the testimony about Defendant’s prior incarceration was outside the scope of the direct

examination. But that is not the case. Defendant’s trial counsel asked for a mistrial because

“they’ve got in testimony that my client’s a convicted felon.” (2/7/18 Trial Tr., R. 146, Page ID

#971.) The district court understood that trial counsel was objecting to prior act evidence and

concluded that, since Defendant did not testify, Rule 609, which permits impeachment by evidence

of a criminal conviction, did not authorize admission of the testimony. The government’s argument

that Defendant failed to develop his argument that evidence of his prior imprisonment should not

have been admitted on appeal is equally unpersuasive. Defendant explained in his opening brief

why admission of his incarceration would be prejudicial.

B. Rule 404(b) Challenges

1. Evidence of Firearm

As the government persuasively argues, evidence of the firearm seized the day of

Defendant’s arrest and introduced during the drug conspiracy phase of trial was not other act

evidence subject to Rule 404(b). Instead, the firearm found in Defendant’s vehicle was evidence

of Defendant’s drug trafficking in this case.

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The district court decided to try Defendant’s heroin conspiracy and felon in possession

counts in a bifurcated proceeding. The court ruled that while evidence regarding the firearm could

be introduced during the first phase of trial on the heroin conspiracy count, the jury would only

receive evidence regarding Defendant’s felon status after reaching a verdict on the drug crime. The

district court rejected Defendant’s one-page motion to preclude the government from introducing

evidence of the firearm during the conspiracy portion of the trial. Defendant objected to the

introduction of the firearm during trial, and was again denied by the district court.

The problem with Defendant’s challenge to the introduction of the firearm during the drug

conspiracy phase of his trial is that this Court has repeatedly found that “firearms, as tools of the

drug-trafficking trade, are probative evidence in drug prosecutions.” United States v. Cleveland,

907 F.3d 423, 436 (6th Cir. 2018) (quoting United States v. Wheaton, 517 F.3d 350, 364 (6th Cir.

2008) (citing cases)). Defendant recognizes these precedents, but argues, without citation, that they

do not support admission of evidence regarding the gun to support his drug conspiracy conviction

because there was no evidence that Defendant used the gun as a “tool of the trade,” and the firearm

and the narcotics were found in different locations. It is certainly true that physical proximity

between firearms and narcotics tends to show a connection between the two, but that factor is not

necessary for the admission of firearm evidence in a drug trafficking case. See United States v.

Hardin, 248 F.3d 489, 499 (6th Cir. 2001) (approvingly citing out-of-circuit decision where gun

was found to be used in connection with a drug crime despite not being found with drugs).

Moreover, in this case, there was evidence that Defendant was using the firearm as a tool

of the drug trade. Detective McKinney testified at trial that Defendant told him that the firearm

found in the vehicle “was his and that he needed it for his protection.” (2/6/18 Trial Tr., R. 145,

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Page ID #850.) McKinney also testified about the connections between drug traffickers and

firearms, explaining that drug dealers do not generally call the police if they are robbed or assaulted

and “a firearm might be necessary to help protect themselves and their narcotics and also the

proceeds from the narcotics.” (Id.) After that testimony, Defendant yet again objected to the

introduction of the gun, claiming that it was not “relevant to help these jurors decide if this is a

conspiracy for heroin.” (Id. at Page ID #851.) The district court rejected this objection “based on

this evidence we have here . . . .” (Id.)

The district court did not abuse its discretion in admitting evidence of the firearm during

the drug conspiracy phase of Defendant’s trial. “[E]vidence of possession of firearms is admissible

to prove conspiracy with intent to distribute controlled substances because such possession is

ostensibly for the purpose of protecting the efficiency of the drug trafficking enterprise.” United

States v. Young, 847 F.3d 328, 355 (6th Cir. 2017) (alteration in original) (citation omitted). In this

case, while the gun and drugs were not found in the exact same location, Defendant possessed the

firearm as he was approaching the house where the drugs were found. The gun and drug charges

were “sufficiently connected temporally or logically to support the conclusion that the two crimes

[were] part of the same transaction or plan,” so as to justify admission of the firearm as a tool of

the trade during the drug conspiracy phase of Defendant’s trial. United States v. Chavis, 296 F.3d

450, 459 (6th Cir. 2002) (quoting United States v. Gorecki, 813 F.2d 40, 42 (3d Cir. 1987)).

2. Threat Against Clayton IV

Defendant’s challenge to the admission of Clayton IV’s testimony about threats Defendant

made is equally unavailing. Clayton IV testified how his father (i.e., Defendant) told him, “I know

you know what I’m capable of,” in the midst of a heated conversation about this criminal case and

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after Defendant found out that Clayton IV had told the police that Defendant had supplied Clayton

IV with heroin. (2/6/18 Trial Tr., R. 145, Page IDs ##715, 724.) Clayton IV testified that he

understood Defendant’s statement “to mean that he might do some harm to me” and that

“[p]ossibly” Defendant might mean to kill him. (Id. at Page ID #724.) Clayton IV also testified

that he believed his father had been involved in a shooting against Clayton IV.

The admission of Clayton IV’s testimony about his father’s threat did not violate Rule

404(b). The district court correctly cited United States v. Mendez-Ortiz, 810 F.2d 76 (6th Cir.

1986), and United States v. Copeland, 321 F.3d 582 (6th Cir. 2003), for the proposition that a

defendant’s threats against a witness are generally admissible. In Mendez-Ortiz, the Court held

that evidence that a heroin trafficker had “attempted to bribe and threatened a witness [] is

admissible to show consciousness of guilt.” Mendez-Ortiz, 810 F.2d at 79. Copeland and many

other cases have endorsed this reasoning, which is fully applicable here. Copeland, 321 F.3d at

597; see United States v. Cordero, 973 F.3d 603, 619 (6th Cir. 2020) (listing cases).

Defendant cites United States v. Richardson, 597 F. App’x 328, 332 (6th Cir. 2015), to

argue that the district court failed to make the required finding that “sufficient evidence exists that

the bad act actually occurred” before admitting Clayton IV’s testimony regarding Defendant’s

threat. However, that is not a part of the required procedure when a court is determining whether

to admit evidence of a defendant’s threat against a witness. This Court has determined whether

testimony regarding threats against a witness should be admitted under Rule 403 and by balancing

of the probative value of the evidence against its unfair prejudicial effect. Copeland, 321 F.3d at

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Nos. 19-5077/5142, United States v. Earl Clayton, III

597.4 One of the cases cited by Defendant in support of his argument, United States v. Al-Din,

631 F. App’x 313, 324 (6th Cir. 2015), even recognized that Rule 403 is a proper test for

admissibility of evidence of threats against witnesses.

A Rule 403 balancing is precisely what the district court did when confronted by

Defendant’s challenge to the admission of Clayton IV’s threat testimony. It found that “the

probative value of the threat evidence is not substantially outweighed by the danger of unfair

prejudice to the Defendant . . . actually the probative value is important and high. There is prejudice

but I don’t think it meets the standard of Rule 403.” (2/6/18 Trial Tr., R. 145, Page ID #718.)

Defendant provides no reason to question, let alone reverse, the district court’s Rule 403

determination, which is reviewed under a particularly deferential abuse of discretion standard,

where the probative value of the evidence is viewed generously, and its unfair prejudice with

caution. See Sherrill, 972 F.3d at 764.

3. Defendant’s Prior Imprisonment

The district court did not err by admitting testimony elicited by the government that

Defendant had been in prison because the district court did not admit any such evidence and, in

fact, specifically issued an instruction excluding it.

Defendant presented his sister, Bonnie Jo Mitchell, as a witness. Mitchell testified that

Clayton IV, who testified against Defendant, had a general character for untruthfulness. On cross-

examination, she explained that Defendant had been to prison for selling drugs. Defendant objected

4
Richardson applied the so-called “three-tiered standard of review for Rule 404(b) determinations,” which
Defendant has not shown this Court applies to claims of spoliation, as at issue here. United States v. LaVictor, 848
F.3d 428, 445 (6th Cir. 2017). Accordingly, the ongoing uncertainty within this Court and between the circuits
regarding proper review of Rule 404(b) determinations does not affect the analysis in this case. Id. at 445 & n.4.

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Nos. 19-5077/5142, United States v. Earl Clayton, III

to this testimony and moved for a mistrial on the basis that the jury now knew that he was a

convicted felon. The district court denied the motion and stated that the testimony was only

evidence that Defendant had been in prison, not that he had been convicted of a felony.

After further consideration and review of the transcript, the district court concluded the

prosecutor’s question that had elicited Mitchell’s response that Defendant had been in prison was

inappropriate. Ultimately, the district court determined that Mitchell’s response was vague because

she only testified that Defendant had sold drugs a long time ago, and it was unclear whether he

was imprisoned because of a felony or misdemeanor. In lieu of Defendant’s request for a mistrial,

the district court issued a curative instruction that the jury disregard any testimony from Mitchell

regarding Defendant. The district court considered giving an instruction that would specifically

direct the jury to disregard any testimony about Defendant’s prior drug dealing, but determined it

was more prudent not to raise the issue again.

“[J]urors are presumed to follow the trial court’s instructions.” United States v. Bradley,

917 F.3d 493, 508 (6th Cir. 2019) (alteration in original) (quoting United States v. Hynes, 467 F.3d

951, 957 (6th Cir. 2006)). Defendant’s claim on appeal that no curative instruction was given is

incorrect, and he provides no reason why the instruction that was given did not protect his right to

a fair trial. See United States v. Johnson, 581 F.3d 320, 330 (6th Cir. 2009) (“Even assuming that

the Government’s cross-examination of Mrs. Johnson was improper, any impropriety was not

flagrant. Although the statement could initially have misled the jury about Mrs. Johnson’s

credibility, the court quickly issued a curative instruction, and nothing about this particular line of

questioning suggests that the misimpression it might have created was not effectively cured by the

instruction.”).

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C. Admission of Co-Conspirator’s Plea Agreement

We also reject Defendant’s challenge to the admission of Clayton IV’s plea agreement. As

discussed above, Defendant did not object to the admission of this evidence before the trial court,

so the district court’s evidentiary ruling is reviewed for plain error.

Defendant correctly points out that “the guilty plea of a co-defendant or co-conspirator is

never admissible as substantive evidence of a defendant’s guilt,” quoting United States v. Carson,

560 F.3d 566, 574 (6th Cir. 2009). But Carson also recognized, in the next sentence, that “[s]uch

evidence [i.e., a plea agreement], however, may be considered by the jury in evaluating the co-

defendant’s credibility as a witness.” Id.

More specifically, Carson explained that the limiting instruction that the district court gave

in this case—“the fact that a witness has pled guilty to the crime charged in the indictment is not

evidence in and of itself of the guilt of any other person” (2/8/18 Trial Tr., R. 147, Page ID

#1081.)—cured any prejudice relating to the admission of a plea agreement and a prosecutor’s

comments about it. Id. at 576. Defendant offers no reason why that instruction was not equally

curative in this case.

D. Cumulative Effect of Evidentiary Errors

Defendant’s claim on appeal is that the cumulative effect of evidentiary errors deprived

him a fair trial. “However, cumulative-error analysis is not relevant where no individual ruling

was erroneous.” United States v. Deitz, 577 F.3d 672, 697 (6th Cir. 2009). For the reasons

discussed above, Defendant has not demonstrated any erroneous evidentiary ruling by the district

court. Accordingly, cumulative-error analysis is not appropriate in this case, and Defendant has

not shown he is entitled to a new trial.

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IV. Prosecutorial Misconduct

Defendant has not demonstrated flagrant prosecutorial misconduct that would entitle him

to a new trial.

A. Standard of Review

“When a defendant fails to object to alleged prosecutorial misstatements at trial, as was the

case here, we review for plain error.” United States v. Hall, 979 F.3d 1107, 1119 (6th Cir. 2020).

“In reviewing a claim of prosecutorial misconduct under the plain-error standard of review, we

must first determine whether the statements at issue were improper. If so, we then have to decide

whether they were sufficiently flagrant to warrant reversal of the defendant’s conviction despite

his failure to object to them at trial.” United States v. Modena, 302 F.3d 626, 634 (6th Cir. 2002)

(citation omitted). Defendant has not made this showing.

B. Statements in Closing Argument

At least one of the statements raised in Defendant’s challenge was not improper, let alone

flagrant. Defendant takes issue with the prosecutor’s statement that “[p]eople that traffic in this

poison in our society cannot be effectively prosecuted unless when you catch one, see if you can

flip him so that you can get not only him or her but the next person up the hierarchy.” (2/7/18, R.

146, Page ID #1036.) In an unpublished decision, a panel of this Court in United States v. Scott,

716 F. App’x 477 (6th Cir. 2017), surveyed other circuits and “found that referring to narcotics as

poison is within the proper bounds of closing argument.” Id. at 487. An unpublished decision is

not binding, but may be considered for its persuasive value. Sanford, 476 F.3d at 396. Scott’s

analysis regarding prosecutorial references to drugs as “poison” has been approvingly cited by at

least one published decision, United States v. Cleveland, 907 F.3d 423, 438 (6th Cir. 2018), and

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one other unpublished decision, United States v. Meadows, 822 F. App’x 434, 442 (6th Cir. 2020),

and Defendant provides no reason why a single isolated reference to heroin as poison was

prosecutorial misconduct that deprived him of his right to a fair trial.

The government concedes that statements the prosecutor made during closing argument

regarding Kentucky law as to the legally proper means of carrying a firearm in a vehicle was itself

improper because no evidence about the appropriate way of carrying a gun in that state was

introduced into evidence. The government also does not contest that the prosecutor inappropriately

told the jurors to “do their job,” when he said, “I just ask you don’t let him get away with it.”

(2/7/18 Trial Tr., R. 146, Page ID #1064.) “Statements that exhort the jury to ‘do its job’ are

improper.” Modena, 302 F.3d at 634 (quoting United States v. Young, 470 U.S. 1, 18 (1985)).

Another prosecutorial statement describing Detective McKinney as “an experienced highly

trained veteran narcotics investigator with an unblemished record, decorated veteran, who has been

doing narcotic cases for years, has done hundreds of them,” challenged by Defendant was possibly

inappropriate. (2/7/18 Trial Tr., R. 146, Page ID #1044.) In United States v. Davis, 514 F.3d 596

(6th Cir. 2008), this Court found that statements bolstering officer witnesses as “public servants

who risk their lives every day,” while possibly improper, did not significantly affect the fairness

of the proceedings. Id. at 616 (quotation marks omitted).

In his opening brief, Defendant suggested that two other statements made during the

prosecutor’s closing argument were inappropriate. First, Defendant asserts that the prosecutor’s

rhetorical question that “[w]e don’t confess to serious crimes unless we did it, do we?,” was

prejudicial because it suggested that Defendant’s confession and statements to police after he was

stopped and arrested on November 24, 2015 were sufficient to convict him. (2/7/2018 Trial Tr., R.

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Nos. 19-5077/5142, United States v. Earl Clayton, III

146, Page ID #1044.) It is not at all apparent that the prosecutor’s statement implied that

Defendant’s confession was sufficient to convict, rather than constituting a recognition that a

confession is strong evidence of guilt. See Harbison v. Bell, 408 F.3d 823, 834 (6th Cir. 2005).

Even if the prosecutor’s statement did imply that a confession was sufficient for conviction, it did

not rise to the level of reversible prosecutorial misconduct. In United States v. Reliford, 58 F.3d

247 (6th Cir. 1995), the prosecutor explicitly said that a confession alone is sufficient to convict,

and this Court found there was no misconduct sufficient to justify a new trial. Id. at 251–52 & n.2.

Second, Defendant also takes issue with the prosecutor’s statement about Clayton IV, who

had taken a plea deal, that “[e]ven if he is a dope dealer, he’s man enough to admit what he did

and take his licks,” was improper. (2/7/18 Trial Tr., R. 146, Page ID #1048.) However, Defendant

offers no explanation of why this statement was improper or prejudiced him, forfeiting the

argument. See Scott v. First S. Nat’l Bank, 936 F.3d 509, 522–23 (6th Cir. 2019).

Thus, on the most generous to Defendant reading of the prosecutor’s closing argument,

there were three improper statements: (1) an admittedly inappropriate reference to Kentucky law;

(2) an arguable attempt to exhort the jury to “do its job”; and (3) bolstering of a government

witness. Regardless of the resolution of any arguments regarding propriety of these statements,

Defendant’s argument for a new trial on the basis of prosecutorial misconduct in closing argument

fails because he presents no substantive argument that these errors were flagrant, a showing he

recognizes is required for reversal. He does not explain “1) whether the statements tended to

mislead the jury or prejudice the defendant; 2) whether the statements were isolated or among a

series of improper statements; 3) whether the statements were deliberately or accidentally before

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the jury; and 4) the total strength of the evidence against the accused.” Cleveland, 907 F.3d at 438

(quoting United States v. Tarwater, 308 F.3d 494 , 511 (6th Cir. 2002)).

Defendant has not shown that the prosecutor’s improper statements “were flagrant enough

to affect [his] substantial rights,” and his appeal on this basis is denied. Hall, 979 F.3d at 1119.

CONCLUSION

For the reasons stated above, we AFFIRM Defendant’s convictions and sentence in No.

19-5077. Defendant’s appeal of the revocation of his supervised release in No. 19-5142 is limited

to his challenges to those convictions, which the district court determined constituted a violation

of his supervised release. Because we affirm Defendant’s underlying convictions, we also

AFFIRM the district court’s judgment in No. 19-5142.

26