OPINION
Defendant-Appellants Kwan Andre Winston and Tirrell Clemmons appeal their convictions and sentences following a
For the following reasons, we AFFIRM the convictions and sentences on all counts.
I. BACKGROUND
A. Facts
Winston and Clemmons were members of a street gang and were involved in the sale of cocaine, crack cocaine and marijuana in southwest Michigan. Shamon Figures was Winston’s primary supplier of crack cocaine and Davonn Hartfield, another member of the gang, also bought crack cocaine from Figures. On the afternoon of February 20, 1997, Hartfield told Winston that Figures was coming to his house in Grand Rapids, Michigan to sell him cocaine. Hartfield knew that Winston was having problems with his supply of crack cocaine from Figures and Winston agreed to meet Figures at Hartfield’s house. Winston and Clemmons went to the home of Hartfield and waited for Figures. Immediately upon Figures’s arrival at the Hartfield residence, Winston and Figures began arguing. The argument escalated and Winston struck Figures in the nose with a Glock semiautomatic pistol. Figures tried to escape by jumping through a window, but was shot by Winston and dragged into the kitchen. Clem-mons entered the kitchen, pointed a gun at Figures, and demanded that he turn over the money and drugs that he owed Winston. Figures was then forced into the trunk of Hartfield’s car where Winston shot him twice. As Winston was closing the trunk lid, his firearm accidentally discharged, shooting Clemmons in the chest.
Winston, with Figures in the trunk, drove Clemmons to the apartment of Kor-marne Hassel. Hassel helped Clemmons out of the car and into his apartment, and Winston asked Hassel to call Antawin Fowler. Winston, with Figures still in the trunk, then drove to Fowler’s residence. Police and medical technicians responded to Hassel’s apartment and transported Clemmons to the hospital. At the hospital. Clemmons was treated for his gunshot wound and his clothes were seized for evidence. After arriving at Fowler’s. Winston told him that Figures’s body was in the trunk of his car. He then asked Fowler to follow him to Benton Harbor, Michigan, which is located about one hour and thirty minutes from Grand Rapids, in order to dispose of the body.
Fowler and Winston arrived at Ronald Evans’s home in Benton Harbor. Teke-
B. Procedural History
On November 10, 1999, Winston and Clemmons were indicted and charged with two counts in a Fourth Superseding Indictment: Count One charged them with conspiracy to distribute and possess with intent to distribute cocaine in violation of 21 U.S.C. §§ 841(a)(1), 841(b)(1)(A), 846; (2002), and Count Three charged them with carrying and using a firearm in relation to a drug trafficking crime to commit murder in violation of 18 U.S.C. §§ 2, 924(c), 924(j) (2002). Winston was indicted on one additional charge in the Fourth Superseding Indictment; Count Two of the indictment charged him with participating in a continuing criminal enterprise in violation of 21 U.S.C. § 848 (2002).
Winston and Clemmons were scheduled to be tried together. On October 10, 2000, the district court issued a Memorandum Opinion and Order addressing Winston’s Motion for Severance, which was based primarily on the Government’s proposed introduction of various statements by Clemmons. The district court denied Winston’s Motion for Severance and ordered the Government to further redact several of Clemmon’s statements as directed by the district court. After a fourteen-day trial, a jury returned guilty verdicts against Winston and Clemmons on all counts. On April 23, 2001. Winston was sentenced to terms of life in prison on each of Counts Two and Three, to be served concurrently. Clemmons was sentenced to terms of life in prison on each of Counts One and Three, to be served concurrently. On December 8, 2001, Winston and Clem-mons filed a Joint Motion to Set Aside the Verdict and Dismiss Count Three of the Indictment under Fed.R.Crim.P. 33 (2002). On February 26, 2001, the district court denied the motion. Clemmons and Winston then filed timely motions for appeal.
II. DISCUSSION
A. Bruton Violation
Winston argues that the district court abused its discretion in denying his motion for a mistrial based on the admission of statements by Clemmons in violation of Bruton v. United States, 391 U.S. 123, 88 S.Ct. 1620, 20 L.Ed.2d 476 (1968). We review a district court’s denial of a motion for mistrial for abuse of discretion. United States v. Ursery, 109 F.3d 1129, 1133 (6th Cir.1997).
1. Applicable Law
The Bruton rule was first announced by the Supreme Court in 1968 and its contours were refined by two subsequent Supreme Court cases in 1987 and 1998. In Bruton, the Supreme Court announced a rule to protect defendants who are tried jointly for the same crime from the possibility that the introduction of the co-defendant’s confession may violate the Confrontation Clause of the Sixth Amendment. The Supreme Court in Bruton held that a limiting instruction that the jury should
there are some contexts in which the risk that the jury will not, or cannot, follow instructions is so great, and the consequences of failure so vital to the defendant, that the practical and human limitations of the jury system cannot be ignored. Such a context is presented here, where the powerfully incriminating extrajudicial statements of a co-defendant, who stands accused side-by-side with the defendant, are deliberately spread before the jury in a joint trial.
Id at 135-36, 88 S.Ct. 1620. (citations omitted).
The Supreme Court returned to the issue of the Bruton rule in Richardson v. Marsh, 481 U.S. 200, 107 S.Ct. 1702, 95 L.Ed.2d 176 (1987). In Richardson, the Supreme Court limited the reach of the Bruton rule to statements that were incriminating on them face and expressly implicated the co-defendant. Richardson, 481 U.S. at 208, 107 S.Ct. 1702. The Court distinguished between confessions that were “incriminating on [their] face,” and confessions “requiring linkages,” and limited the Bruton rule to the former. Id. The Court held that the confessions made by the co-defendant in Richardson required additional evidence to link the other co-defendant to the case, and therefore there was no need for the protections of Bruton in such a case. Id.
The Supreme Court’s decision in Gray v. Maryland, 523 U.S. 185, 118 S.Ct. 1151, 140 L.Ed.2d 294 (1998), is its latest refinement of the Bruton rule. Gray answered a question left open in Richardson— “whether redaction that replaces a defendant’s name with an obvious indication of deletion, such as a blank space, the word ‘deleted,’ or a similar symbol, still falls within Bruton’s protective rule.” Gray, 523 U.S. at 192, 118 S.Ct. 1151. The name of the non-testifying co-defendant in Gray was removed and replaced simply with blank spaces. The blank spaces were referred to as “deleted” or “deletion” during oral testimony. Id. at 188, 118 S.Ct. 1151. The Court held that “[Redactions that simply replace a name with an obvious blank space or a word such as “deleted” or a symbol or other similarly obvious indications of alteration ... leave statements that ... so closely resemble Bruton’s un-redacted statements that, in our view, the law must require the same result.” Id. The Court reasoned that statements redacted in such a way were often obvious to the jury, unnecessarily alerted the jury to the redacted name, and directly accused the co-defendant. Id. at 193-194, 118 S.Ct. 1151.
The Court in Gray also suggested that the substitution of a neutral pronoun may save a redacted statement from being impermissible under Gray. Specifically, the Court provided as an example: in response to the question, “Who was in the group that beat Stacey?,” the answer of “Me, deleted, deleted, and a few other guys” could have been changed to “Me and a few other guys.” Id. at 196, 118 S.Ct. 1151. Prior to the decisions in Richardson and Gray, this Court found that the admission of a redacted statement of a co-defendant containing the word “blank” in place of the defendant’s name violated the Bruton rule. Hodges v. Rose, 570 F.2d 643, 647 (6th Cir.1978) (“Although the other party is referred to as ‘blank’ in the redacted statement, the circumstances of the case and other evidence admitted virtually compel the inference that ‘blank’ is [the defendant].”). Following Gray, we have not ruled specifically on what would be accept
2. Applying the Bruton rule
Winston argues that the introduction of certain statements made by Clemmons violated the Bruton rule. See United States v. Bartle, 835 F.2d 646, 651 (6th Cir.1987) (extending Bruton to include statements made by non-testifying co-defendants as well as their confessions). Specifically, Winston argues even though the district court redacted Clemmons’s statement to eliminate the phrase “another individual/subject,” the Government allowed its witness to testify twice that Clemmons arrived at Hartfield’s residence “with another individual.” Winston argues that the only person that Clemmons could have been referring to was Winston.
On September 29, 2000, the district court conducted a hearing to consider Winston’s severance request and the Bruton issue in regard to several statements made by Clemmons. On October 10, 2000, the district court issued an Opinion and Order denying the severance request and ruling that Clemmons’s properly redacted statements could be introduced at trial. The Government had suggested that Winton’s name be replaced with neutral pronouns such as “others” or “someone” and the district court found this sufficient to avoid any Bruton violation. The district court also directed Clemmons’s statement of “While Clemmons, Hartfield and this other person were inside the home. Shamon Figures arrived,” to be changed to ‘While they were inside the home, Shamon Figures arrived.” Finally, the district court ordered the Government to submit its proposed questions regarding Clemmons’s statements to the court prior to the examination of the witnesses involved. At trial, one of Clemmons’s statements was introduced through the testimony of Detective Carl Deland. When first asked to testify about Clemmons’s statement, Deland testified:
Q. Okay. And what did Mr. Clemmons tell you about these events?
A. He had indicated that he was over at Davonn Hartfield’s residence. He indicated that he had arrived there with another subject, not Marty Gilbert. He had indicated that he was in this house with Da-vonn Hartfield and the other subject.
The Government immediately terminated the questioning because it was not in compliance with the district court’s order regarding redaction. The witness claimed that he did not understand that he was simply to read the statement as redacted. Winston’s counsel moved for a mistrial and the district court ruled that he would correct the issue by telling the jury to disregard the statement. In its ruling, the district court said that it did not believe that the unredacted testimony violated Bruton, but that in an abundance of caution, he would instruct the jury. Deland was asked again to read Clemmons’s statement and he stated, “Mr. Clemmons ad
The statements at issue in this case do not raise a traditional Bruton issue. As discussed previously, this Court has not ruled specifically on the types of redac-tions that avoid violations of Bruton. The district court noted that it had asked for further redactions of Clemmons’s statements as a cautionary measure since “the Sixth Circuit hasn’t ruled on [what types of redactions are acceptable under Bru-ton ] yet.” The statement as read by De-land to the jury twice was redacted and any reference to Winston was replaced with the neutral pronoun “another subject/individual.” Therefore, Winston is unable to claim that unredacted statements such as those at issue in Bruton were admitted against him at trial. Instead, Winston is actually making a claim under Gray that Clemmons’s statement as redacted was so close to the unredacted statement as to violate Winston’s rights under Bruton. Winston argues that the Government’s theory is that only four individuals were at Hatfield’s residence the night of the shooting. Winston argues that by a process of elimination, “another subject/individual” could only be referring to Winston and because of this, a violation of Bruton occurred.
Though Deland read the wrong statement twice, Winston’s claim must fail. In Bruton, the Court recognized that in many circumstances a limiting instruction will adequately protect one defendant from the prejudicial effects of the introduction at a joint trial of evidence intended for use only against a different defendant. Bruton, 391 U.S. at 135, 88 S.Ct. 1620. Deland’s statements were not the type of improperly redacted statements that were the subject of Gray. The district court merely asked for the statements to be redacted beyond what the Supreme Court and several circuit courts have held necessary to avoid a violation under Bruton. As the district court noted, the statements as first read by Deland were sufficiently redacted under Bruton and Gray, though they were not read as further redacted by the district court. The “other individual” that Deland referred to in his testimony was never mentioned again during his testimony. Clemmons’s statements did not compel an inference by the jury that Winston was “the other individual.” The jury learned only that Clemmons entered the house and another person accompanied him. The jury did not learn whether Winston was Clemmons’s companion or whether Winston was involved in the murder of Figures. Therefore, the district court did not abuse its discretion in denying Winston’s motion for mistrial based on Deland’s statements.
B. Brady Violation
Clemmons argues that the district court erred in denying his motion for new trial based on a violation of Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963), by the Government. We review the denial of a motion for a new trial for abuse of discretion. United States v. Frost, 125 F.3d 346, 382 (6th Cir.1997). The Supreme Court has held that in the context of an alleged Brady violation, a new trial may only be granted if the defendant shows that “the undisclosed evidence undermines confidence in the outcome of the trial.” Kyles v. Whitley, 514 U.S. 419, 115 S.Ct. 1555, 131 L.Ed.2d 490 (1995).
1. Applicable Law
Under Brady, the Government has the duty to disclose all exculpatory evidence “material to either guilt or punishment.” 373 U.S. at 87, 83 S.Ct. 1194. The Supreme Court later extended the Government’s duty under Brady to include disclosure of material evidence that could be used to impeach the credibility of a witness. United States v. Bagley, 473 U.S. 667, 105 S.Ct. 3375, 87 L.Ed.2d 481 (1985). The Supreme Court clarified the meaning of “materiality” in Kyles v. Whitley, 514 U.S. 419, 115 S.Ct. 1555, 131 L.Ed.2d 490 (1995), and held that any favorable evidence is “material” if “there is a reasonable probability that, had the evidence been disclosed to the defense, the result of the proceeding would have been different.” Kyles, 514 U.S. at 433-34, 115 S.Ct. 1555 (quoting United States v. Bagley, 473 U.S. 667, 682, 105 S.Ct. 3375, 87 L.Ed.2d 481 (1985)). A “reasonable probability” is “a probability sufficient to undermine confidence in the outcome.” Bagley, 473 U.S. at 682, 105 S.Ct. 3375; Schledwitz v. United States, 169 F.3d 1003, 1011 -1012 (6th Cir.1999). Therefore, a defendant is not required under Brady or Bagley to show that the undisclosed evidence would produce an acquittal. Moreover, in determining whether undisclosed evidence is material, the suppressed evidence is considered collectively, rather than item-by-item, to determine if the “reasonable probability” test is met. Kyles, 514 U.S. at 436, 115 S.Ct. 1555.
2. Applying the Brady rule
Clemmons argues that the nondisclosure of evidence regarding the credibility of a Government witness. Amere May, falls within the scope of Bagley and warrants a new trial. May, a cellmate of Clemmons, testified that Clemmons told him all of the details of the events of February 20, 1997.
The district court focused its analysis mostly on the standard we articulated in Schledwitz in denying Clemmons’s motion. Under Schledwitz, we held that a defendant needed to show that (1) the new evidence was discovered after trial, (2) the evidence could not have been discovered earlier with due diligence; and (3) the evidence presented a reasonable probability that the outcome of the proceedings would have been different, 169 F.3d at 1011-12. The Government admitted that the evidence was available to them, but due to a lack of communication between the United States Attorney’s Office and the Federal Bureau of Investigation it was only made known to them after the trial. Thus the first and second prongs of Schledwitz were satisfied. See Kyles (holding that knowledge of evidence from one United States Department of Justice employee is imputed to all employees of the Department of Justice. However, the district court found that the third prong of Schledwitz was not satisfied. Though the district court admonished the Government for “bringing) a fail house snitch to testify,” the district court characterized May as a minor witness. Specifically, the district court noted that there were several other witnesses who testified to Clemmons’s drug trafficking and his involvement in the Figures murder. Additionally, the district court noted that DNA analysis established that Figures’s blood was on Clemmons’s jacket, and there was a substantial amount of other evidence impheating Clemmons in the murder. The district court also found that Clemmons had the opportunity to cross-examine May extensively. Examining ah of this evidence collectively, the district court determined that May’s testimony was not essential in proving Clem-mons’s involvement in the murder.
There is no evidence to support a finding by this Court that the district court abused its discretion in denying Clemmons’s motion for a new trial. The undisclosed impeachment evidence certainly would present a question of materiality under Bagley, and in isolation, May’s testimony may have proven exceptionally damaging against Clemmons. However, when considered in conjunction with the testimony of other witnesses and the other evidence presented at trial, May’s testimony was incidental at best. Cf. Giglio v. United States, 405 U.S. 150, 92 S.Ct. 763, 31 L.Ed.2d 104 (1972) (holding that undisclosed evidence was material because it related to the credibility of the co-conspirator, who was the key Government witness). Most importantly. May testified that his knowledge of the murder was based solely on what Clemmons had relayed to him in the confines of their prison cell. As the district court noted, no less than six witnesses testified to Clemmons’s involvement in the murder of Figures based on their direct interactions with him on the day'of the murder. Furthermore, May’s description of the events involving the murder, especially his testimony that Clemmons had travelled to Benton Harbor to dispose of the body, was significantly contrary to the testimony of other witnesses. On cross-examination, May’s prior
C. Other Claims Asserted both Individually and Jointly
Clemmons and Winston also assert several other assignments of error in the trial proceedings. We find no merit in these other claims and discuss them only briefly.
1. Admission of Clemmons’s Statements
Clemmons argues that the district court erred in allowing portions of a letter he wrote to be read into evidence. Federal Rule of Evidence (“FRE”) 403 states that “[although relevant, evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury....” Fed.R.Evid. 403(2002). Under FRE 403, it is within the sound discretion of the trial judge to determine whether to admit allegedly unduly prejudicial evidence. See In re Beverly Hills Fire Litigation, 695 F.2d 207, 217-18 (6th Cir.1982). Therefore, we review an evi-dentiary ruling by the district court for abuse of discretion. United States v. Lan-gan., 263 F.3d 613, 620 (6th Cir.2001) (“We will not disturb a district court’s evidentia-ry rulings unless we find an abuse of discretion.”).
At trial, the Government argued that portions of a letter Clemmons wrote to a friend while in custody were an admission by Clemmons of his knowledge about Figures’s murder. At trial, the Government was permitted to read redacted portions of the letter into evidence as an admission by a party-opponent under FRE 801(d)(2)(A)(2002). The district court ruled that the redacted portions of the letter could be read into evidence because they were “an admission by the defendant ... that he has knowledge that these people have knowledge that the crime occurred.” In summarily evaluating the portions of the letter under FRE 403 for unfair prejudice, the district court ruled that he did not “see any unfair prejudice.”
Because Clemmons’s statements acknowledge that he is concerned about two other people with knowledge of the murder, they certainly can be interpreted as indicating his consciousness of guilt. See, e.g., United States v. Gartmon, 146 F.3d 1015, 1022 (D.C.Cir.1998) (holding that admission of tape recordings on which defendant admits to retaining a lawyer are probative of defendant’s consciousness of guilt); United States v. Mendez-Ortiz, 810 F.2d 76, 79 (6th Cir.1986) (“spoliation evidence, including evidence that defendant attempted to bribe and threatened a witness, is admissible to show consciousness of guilt.”) (citations omitted). Clemmons makes no argument explaining how this evidence, properly admitted under FRE 801(d)(2)(A), is unfairly prejudicial under FRE 403. The evidence admitted simply shows Clemmons’s state of mind and knowledge and infers nothing about his character or propensity to commit the crimes charged. United States v. Bonds, 12 F.3d 540, 567 (6th Cir.1993) (“Unfair prejudice ... does not mean the damage to a defendant’s case that results from the legitimate probative force of the evidence.”) (citation omitted). Therefore, the
2. Pinkerton Jury Instruction
Clemmons argues that the district court erred in giving the jury instructions under Pinkerton v. United States, 328 U.S. 640, 66 S.Ct. 1180, 90 L.Ed. 1489 (1946), for Clemmons’s liability for the homicide of Figures. We review challenges to jury instructions “as a whole to determine whether they adequately inform the jury of relevant considerations and provide a basis in law for the jury to reach its decision.” Innes v. Howell Corp., 76 F.3d 702, 714 (6th Cir.1996). The district court “may be reversed only if the instructions, viewed as a whole, were confusing, misleading, or prejudicial.” Beard v. Norwegian Caribbean Lines, 900 F.2d 71, 72 (6th Cir.1990).
a. Applicable Supreme Court Precedent
In Pinkerton, the Supreme Court articulated the rule that conspirators are criminally liable for substantive crimes committed by their co-conspirators in furtherance of the conspiracy, 328 U.S. at 647-48, 66 S.Ct. 1180. The Court said that a co-conspirator may avoid liability if the substantive crime does not fall “within the scope of the unlawful project, or ... could not be reasonably foreseen as a necessary or natural consequence of the unlawful agreement.” Id.; see also Frost, 914 F.2d at 762.
The question of whether an instruction should have been given under Pinkerton depends on “whether the evidence was sufficient for a reasonable jury to have concluded beyond a reasonable doubt that the murder was a reasonably foreseeable consequence of the drug conspiracy alleged in the indictment.” United States v. Mothersill, 87 F.3d 1214, 1217 (11th Cir. 1996) (citations omitted). In reviewing a district court’s decision to submit a jury instruction under Pinkerton, we must “view the evidence in the light most favorable to the government and accept all the jury’s reasonable inferences and credibility choices which support the verdict.” Moth-ersill, 87 F.3d at 1217 (citing Glasser v. United States, 315 U.S. 60, 80, 62 S.Ct. 457, 86 L.Ed. 680 (1942)).
b. Applying Pinkerton
Clemmons argues that the evidence at trial was insufficient to establish either that the murder of Figures by Winston was committed in furtherance of the conspiracy or that the murder could have been reasonably foreseen as a necessary and natural consequence of the conspiracy. Instead. Clemmons argues that the murder was completely unexpected and spontaneous.
The district court ruled that under a very narrow Pinkerton instruction the jury would be told that Clemmons could be hable for the murder of Figures if he “understood at the time that Figures was put in the trunk or because of those events that occurred that day that [Figures] was going to be murdered or it was reasonably foreseeable that Figures was going to be murdered.” If we view the evidence in the light most favorable to the Government, as we must, there was sufficient evidence for the jury to determine that the murder of Figures was done in furtherance of the drug conspiracy and was reasonably foreseeable as a necessary and natural consequence of the conspiracy. United States v. Henning, 286 F.3d 914, 920 (6th Cir. 2002) (holding that it was not error for the district court to give a Pinkerton instruction once it determined that sufficient evidence had been presented to send the question of whether a conspiracy existed to the jury). Specifically, the evidence at
3. Ineffective Assistance of Counsel
In his final individual claim. Clemmons argues that his trial counsel rendered ineffective assistance. We do not address on direct appeal claims of ineffective assistance of counsel unless the record has been sufficiently developed to provide meaningful factual review. Brown, 276 F.3d at 217. In this case, we have no evidence to evaluate counsel’s performance at trial. Accordingly, we will defer review of these claims to a post-conviction proceeding, if any, in order to fully develop the record. Id.; see also United States v. Aguwa, 123 F.3d 418, 423 (6th Cir.1997) (“Our court has routinely concluded that such claims are best brought by a defendant in a post-conviction proceeding under 28 U.S.C. § 2255.”).
4. Jury Instruction on Malice Aforethought
Both Winston and Clemmons were charged in Count Three of the indictment with a violation of 18 U.S.C. § 924(j). Winston was charged as a principal and Clemmons was charged as an aider and abettor Jointly, they argue that the district court erred in its instruction to the jury on the definition of “malice aforethought.” We review challenges to jury instructions “as a whole to determine whether they adequately inform the jury of relevant considerations and provide a basis in law for the jury to reach its decision.” Innes. 76 F.3d at 714. The district court “may be reversed only if the instructions, viewed as a whole, were confusing, misleading, or prejudicial.” Beard, 900 F.2d at 72.
At trial, Winston and Clemmons argued that the district court’s definition incorporated second-degree murder into one of the elements needed to prove a violation of § 924(j), using a firearm to commit a drug-related murder. In its instructions to the jury on this count, the district court’s third definition of malice aforethought was “to act recklessly with extreme disregard for human life.”
There are four elements that the Government must prove in order to sustain a violation of § 924(j): 1) the commission of a federal crime of violence or drug trafficking; 2) the use or carrying of a firearm during or in furtherance of such a crime; 3) the death of person by the use of the firearm; and 4) the death was caused by murder as defined in 18 U.S.C. § 1111 (2002). As the Government argues, satisfying § 924(j) requires proof only that the killing was a murder as defined in § 1111. Section 1111(a) explicitly defines both first-degree murder and second-degree murder, and therefore the reference in § 924(j) to “murder (as defined in section 1111)” incorporates by reference both first
5. Denial of Joint Motion to Set Aside the Verdict and Dismiss Count Three
Finally, Winston and Clemmons argue jointly that the district court erred in denying their Joint Motion to Set Aside the Verdict and Dismiss Count Three. We review the denial of a motion to set aside a verdict for abuse of discretion. Clay v. Ford Motor Co., 215 F.3d 663, 672 (6th Cir.2000). In determining whether to grant a new trial when the claim is that the verdict is against the weight of the evidence, a district court must compare and weigh the opposing evidence and it must set aside the verdict if it determines that the verdict is against the clear weight of the evidence. Id.
Count Three of the Fourth Superseding Indictment charged Winston and Clem-mons with the use of a firearm to commit a drug-related murder in violation of § 924(c), (j). Winston and Clemmons argue that given the Supreme Court’s recent decision in United States v. Morrison, 529 U.S. 598, 120 S.Ct. 1740, 146 L.Ed.2d 658 (2000). § 924(c) (incorporated by reference in § 924(j)) violates the Commerce Clause of the Constitution. They argue that, although Congress may regulate activity that “substantially affects interstate commerce” under its commerce clause power, § 924(j) regulates a purely intrastate activity in this case. Morrison, 120 S.Ct. at 1749 (quoting United States v. Lopez, 514 U.S. 549, 558-59, 115 S.Ct. 1624, 131 L.Ed.2d 626 (citations omitted)). They also argue that no evidence was presented at trial that either the drug trafficking, the firearms purchase, or the murder occurred outside the borders of Michigan and thus there was no substantial effect on interstate commerce.
In denying Defendants’ Joint motion, the district court relied principally on our decision in United States v. Tucker, 90 F.3d 1135 (6th Cir.1996). We reasoned in Tucker that “drug-trafficking is an ‘economic enterprise’ that substantially affects interstate commerce in numerous clear ways.” 90 F.3d at 1140. In the present case, the district court agreed with the Government that Tucker provides the basis for upholding the validity of § 924(c) under the Commerce Clause because the basis of Congressional power in enacting that statute is the regulation of drug trafficking, which is interstate in nature. In relying on Tucker the district court found that no court has addressed directly the validity of § 924(c) post -Morrison. Id. However, the district court found that several courts upheld challenges to § 924(c) under Lopez, and in support, the district court cited United States v. Walker, 142 F.3d 103, 111 (2d Cir.1998) (“we find Section 924(c)(1) regulates an economic activity that substantially affects interstate commerce”); United States v. Bell, 90 F.3d 318, 320 (8th Cir.1996) (“Section 924(c)(1),
The district court went on to reason that Morrison did not change the analysis of § 924(c) under Lopez because the statute requires a connection to drug trafficking, which can be regulated by Congress under the Commerce Clause as an interstate, economic activity. The district court also did not find our decision in United States v. Corp, 236 F.3d 325 (6th Cir.2001) to be applicable. The district court found that Corp was limited to the facts of the case and noted that in Corp we did not hold any statute unconstitutional, rather we held that the particular activities in which Corp was participating were not activities that Congress intended to regulate.
The analysis undertaken by the district court was thorough and consistent with the state of the law in this Court and other circuits. Section 924(c) is based on the underlying offense of drug trafficking. In our most recent discussion of Congress’s power to regulate drug trafficking under the Commerce Clause, we held that Congress is permitted to regulate drug trafficking and related crimes that occur solely intrastate under the Commerce Clause. United States v. Brown, 276 F.3d 211, 214-15 (6th Cir.2002) (citations omitted). Therefore, the district court did not abuse its discretion in denying Appellants’ Joint Motion to Set Aside the Verdict and Dismiss Court Three.
III. CONCLUSION
For the foregoing reasons, we AFFIRM the convictions and sentences of Winston and Clemmons.