United States v. Buchanan

RECOMMENDED FOR FULL-TEXT PUBLICATION
Pursuant to Sixth Circuit Rule 206
ELECTRONIC CITATION: 2000 FED App. 0060P (6th Cir.)
File Name: 00a0060p.06

UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
_________________

;

UNITED STATES OF AMERICA,

Plaintiff-Appellee,


Nos. 98-1353/
v.

1391/1533/1534/
>

1535/1537/1538/
ALLIE RICHARD BUCHANAN
IV (98-1353), TROY SWINDLE 
1590/1594/1780



(98-1780), ALBERT DERRING

(98-1391), DERRICK C.

FLOWERS (98-1594),
CHARLES WASHPUN 


(98-1590), RODNEY D.


ATKINSON (98-1538), OTIS


MURRAY III (98-1537),

EURTIS JONES (98-1535),

GEORGE KELLUM (98-1534),
and DARRYL FORD (98-1533), 
Defendants-Appellants. 
1

Appeal from the United States District Court
for the Western District of Michigan at Grand Rapids.
No. 97-00082—Robert Holmes Bell, District Judge.
Argued and Submitted: October 25, 1999
Decided and Filed: February 17, 2000

1
2 United States v. Nos. 98-1353/1391/1533/1534/
Buchanan, et al. 1535/1537/1538/1590/1594/1780

Before: JONES, MOORE, and GILMAN, Circuit Judges.
_________________
COUNSEL
ARGUED: David W. Garrett, DAVID W. GARRETT &
ASSOCIATES, Comstock Park, Michigan, Gaylor L.
Cardinal, SLUITER, AGENTS, CARDINAL, VAN GESSEL,
WINTHER & CARLSON, Wyoming, Michigan, William
Mitchell III, SHERBOW & MITCHELL, Troy, Michigan,
Kenneth A. Rathert, RATHERT LAW OFFICES, Kalamazoo,
Michigan, John R. Minock, CRAMER, MINOCK &
GALLAGHER, Ann Arbor, Michigan, Stuart G. Friedman,
Ann Arbor, Michigan, Maureen M. Milliron, SHERBOW &
MITCHELL, Troy, Michigan, for Appellants. Barbara Colby
Tanase, UNITED STATES ATTORNEY, Grand Rapids,
Michigan, for Appellee. ON BRIEF: Craig T. Wormley,
MILLER & ASSOCIATES, Santa Monica, California, David
W. Garrett, DAVID W. GARRETT & ASSOCIATES,
Comstock Park, Michigan, Gaylor L. Cardinal, SLUITER,
AGENTS, CARDINAL, VAN GESSEL, WINTHER &
CARLSON, Wyoming, Michigan, William Mitchell III,
SHERBOW & MITCHELL, Troy, Michigan, Kenneth A.
Rathert, RATHERT LAW OFFICES, Kalamazoo, Michigan,
John R. Minock, CRAMER, MINOCK & GALLAGHER,
Ann Arbor, Michigan, Stuart G. Friedman, Ann Arbor,
Michigan, Maureen M. Milliron, SHERBOW & MITCHELL,
Troy, Michigan, C. Mark Pickrell, Nashville, Tennessee, for
Appellants. Barbara Colby Tanase, UNITED STATES
ATTORNEY, Grand Rapids, Michigan, for Appellee. Albert
Derring, Bradford, Pennsylvania, Darryl Ford, Springfield,
Missouri, Charles Washpun, Greenville, Illinois, Troy
Swindle, Pekin, Illinois, pro se.
GILMAN, J., announced the judgment of the court and,
with one exception, delivered the opinion of the court.
MOORE, J., concurred in the opinion except as to Part II.C.3
(the drug dog issue). JONES, J. (pp. 20-25), delivered a
Nos. 98-1353/1391/1533/1534/ United States v. 3
1535/1537/1538/1590/1594/1780 Buchanan, et al.

separate opinion in which he concurred in the above opinion
except as to Parts II.C.3 and II.C.5 (the photo issue).
MOORE, J., joined in this opinion only as to Part I, making
it the opinion of the court as to the drug dog issue.
_________________
OPINION
_________________
RONALD LEE GILMAN, Circuit Judge. The defendants
in this action were convicted of conspiracy to possess and
distribute cocaine in violation of 21 U.S.C. §§ 841(a)(1) and
846. They raise multiple issues in their appeals, including
challenges to the jury selection process, to evidence admitted
at trial, and to their sentences. For the reasons set forth
below, we AFFIRM the convictions and sentences of all of
the defendants except Allie Richard Buchanan, IV. As to
Buchanan, we AFFIRM his conviction, but VACATE his
sentence and REMAND the same for reconsideration in light
of the district court’s erroneous belief that it did not have
discretion to depart from the applicable sentencing guideline.
I. BACKGROUND
A. Factual background
This case involves a large-scale drug organization involving
numerous individuals, including Rodney D. Atkinson,
Buchanan, Albert Derring, Derrick C. Flowers, Darryl Ford,
Eurtis Jones, George Kellum, Otis Murray, III, Troy Swindle,
and Charles Washpun, all of whom are African-American.
The organization, which began operating in and around
Kalamazoo, Michigan in 1990, was formed by Keylen
Tremell Blackmon, Buchanan, and Scott Hughes.
In broad outline, Blackmon, Buchanan, and Hughes
obtained large quantities of cocaine, primarily from sources
in Chicago, and would then distribute the drugs—in some
instances after converting it into cocaine base (“crack”)—to
4 United States v. Nos. 98-1353/1391/1533/1534/ Nos. 98-1353/1391/1533/1534/ United States v. 25
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various individuals in and around Kalamazoo. Atkinson, photographs had an impact on the outcome of this trial. Their
Derring, Flowers, Ford, Jones, Kellum, Murray, Swindle, and introduction was thus harmless error.
Washpun were all purchasers and/or sellers of the drugs
obtained by Blackmon, Buchanan, and Hughes. The details
of the charged conspiracy will, to the extent necessary, be
discussed in connection with the defendants’ specific
assignments of error.
B. Procedural background
On June 5, 1997, a grand jury indicted twenty-four
individuals—including Buchanan, Derring, Ford, Jones,
Kellum, Murray, Swindle, and Washpun—with conspiracy to
possess and distribute cocaine and cocaine base in violation
of 21 U.S.C. §§ 841(a)(1) and 846. Four of the individuals
were also charged with specific instances of possessing or
distributing the illegal drugs.
A superseding indictment was filed on July 10, 1997, in
which another individual not involved in these appeals was
added to the conspiracy charge. The superseding indictment
also contained money laundering charges and forfeiture
allegations against some of the defendants. On October 1,
1997, Buchanan pled guilty to the conspiracy charge.
A second and final superseding indictment was issued on
October 7, 1997. The new conspiracy charge omitted those
defendants who were originally indicted but who had since
pled guilty, such as Buchanan, and added four new
individuals, including Atkinson and Flowers. In addition to
those modifications, the alleged ending date of the conspiracy
was changed from July of 1996 to June of 1997. Derring pled
guilty on October 29, 1997.
By the beginning of 1998, all but fifteen of those indicted
in the case had entered guilty pleas. Due to the relatively
large number of remaining defendants, the district court
assigned each individual to one of two trials. Atkinson,
Flowers, Ford, Jones, Kellum, Murray, Swindle, and
Washpun constituted the second group. On January 27, 1998,
24 United States v. Nos. 98-1353/1391/1533/1534/ Nos. 98-1353/1391/1533/1534/ United States v. 5
Buchanan, et al. 1535/1537/1538/1590/1594/1780 1535/1537/1538/1590/1594/1780 Buchanan, et al.

to create the inference that these individuals were engaged in one day after their trial began, Swindle moved for a mistrial
illegal narcotics activity at those times. Nor are we on the basis that Blackmon, without warning, revealed to the
comforted, as the district court is, by the fact that the jurors jury that Swindle had made a proffer to the government that
were aware of and could “discount” the possible problems he was, in fact, guilty of the offenses alleged in the
with dog-sniff evidence. Federal Rule of Evidence 403 indictments. The district court, after concluding that a
explicitly recognizes that certain evidence will “confus[e] the limiting instruction would be insufficient, granted the motion
issues [] or mislead[] the jury,” and it is the judge’s duty to and ordered that Swindle be tried at a later date.
exclude such evidence when the potentiality of those effects
substantially outweighs the evidence’s probative value. Fed. On February 3, 1998, a jury convicted each of the
R. Evid. 403. We believe that in this case, the dog-sniff remaining seven defendants. A separate jury convicted
evidence carried just this risk. Swindle in late March of 1998. Unless otherwise stated,
references in this opinion to a “trial” are to the trial which
Despite our concern on this issue, we do not think resulted in the conviction of Atkinson, Flowers, Ford, Jones,
admitting the dog-sniff evidence was reversible error. Even Kellum, Murray, and Washpun, and which originally included
without that evidence, there is substantial other evidence Swindle.
linking both Murray and Washpun to the conspiracy and to
specific criminal actions. On February 19, 1998, the district court sentenced
Buchanan to 156 months of imprisonment. Derring received
II. a 145-month term of incarceration on March 12, 1998. The
district court imposed a 235-month sentence on Ford on April
Second, I am uneasy with the government’s use of the 4, 1998. On May 1, 1998, Atkinson, Flowers, Jones, Kellum,
challenged group photographs in this case. To an Murray, and Washpun were sentenced to respective terms of
undiscerning eye, the use of the photographs showing the 240, 360, 240, 360, 300, and 300 months’ imprisonment.
defendants in a relaxed social setting may seem to be of no Finally, the district court sentenced Swindle to a 324-month
evidentiary consequence. To those who have been victims of term on June 23, 1998.
the subtleties of race, however, the conditioning effect of such
a display is most apparent. In the context of this case, with The defendants then appealed, setting forth a variety of
the racial implications resulting from an all-white jury and an arguments relating to the jury selection process, the
all-black set of defendants, I worry that the photographs, government’s arrangements with certain witnesses, evidence
introduced as early in the trial as they were, likely had an admitted at trial, and their sentences. In several instances, the
improper, not-so-benign racial conditioning effect. Evidence defendants’ individual briefs incorporate by reference the
relating to illicit relationships between defendants which contentions raised by their co-defendants.
might otherwise be viewed with skepticism may
subconsciously have been granted a degree of credibility by
virtue of the photographs at issue. In other words, they
introduce more prejudice than probative value. Once again,
however, given the broader evidence linking defendants
together in this conspiracy, I do not believe the use of these
6 United States v. Nos. 98-1353/1391/1533/1534/ Nos. 98-1353/1391/1533/1534/ United States v. 23
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II. ANALYSIS presumption against the admissibility of evidence of a
canine’s alert to currency, and that the government can
A. Issues regarding the racial makeup of the jury rebut that presumption only if it first clearly and
and the jury selection process convincingly establishes, outside the presence of the jury,
the relevance and non-prejudicial character of the offered
1. Standard of review evidence.
A district court’s ruling on whether a peremptory challenge 25 F.3d at 1216-17 (Becker, J., concurring in part, dissenting
violates the mandates of Batson v. Kentucky, 476 U.S. 79 in part) (footnotes omitted) (emphasis supplied in original).
(1986), is entitled to great deference, and this court will not
disturb that ruling unless it is clearly erroneous. See Given the unrebutted statistical studies in this and other
Hernandez v. New York, 500 U.S. 352, 364-65 (1991). cases, we find Judge Becker’s view compelling. We believe
“Whether a defendant has been denied his right to a jury that courts should generally presume against the admissibility
selected from a fair cross-section of the community is a mixed of dog-sniff evidence unless the government offers other
question of law and fact, which we review de novo.” United evidence showing a direct nexus between illegal narcotics, the
States v. Allen, 160 F.3d 1096, 1101 (6th Cir. 1998). As to currency in question, and the defendant. Further, when
objections raised for the first time on appeal, we will not set circumstances of the dog-sniff detection in any way cast doubt
aside the rulings of the district court unless they constitute on the reliability of that evidence, such as in Akins, we believe
plain error. See Fed. R. Crim. P. 52(b); United States v. courts should find such evidence inadmissible. Under such a
Segines, 17 F.3d 847, 851 (6th Cir. 1994). presumption, we believe that the facts of both Murray’s and
Washpun’s arrests militated for exclusion of the dog-sniff
2. The defendants’ Batson objection evidence in question. First, as in Carr, the government did
not attempt to rebut the contamination studies. Indeed, one
During jury selection, the government used a peremptory officer testified that she was aware of studies showing that as
challenge to strike the only African-American person selected much as seventy to ninety percent of currency is contaminated
for the jury. Citing Batson, the defendants argued that with some amount of controlled substances, J.A. at 1034-35,
because all of the defendants were African-American, the and none of the witnesses who testified as to the dogs’
challenge was racially motivated. In response, the training countered those findings. Further, in neither case was
government asserted that it excused the juror because of an there a nexus between the currency found and illegal
answer she provided in response to a written question asked narcotics. The dog sniff in Murray’s case followed a traffic
of all potential jurors. The question was as follows: “What stop, and although Murray was found with a large amount of
newspapers, magazines and kinds of books do you read?” cash, he possessed no narcotics. Similarly, the dog sniff in
The juror at issue answered: “Grand Rapids press . . . , I read Washpun’s case came after a routine traffic stop of a car in
mysteries, romances and my Bible. I listen to CNN. I really which Washpun was a passenger. A dog “reacted” to
don’t trust our newspaper.” currency in the glove compartment, as well as to money
which had only seconds before been removed from
Based upon this and other answers, the government, prior Washpun’s person. Nevertheless, officers found no drugs in
to learning of each juror’s race, assessed the desirability of Washpun’s car. Given the studies cited above, we find it
each person. The juror at issue had received a “fairly low” disquieting that prosecutors utilized dog-sniff evidence alone
rating. In response to the defendants’ objection, and before
22 United States v. Nos. 98-1353/1391/1533/1534/ Nos. 98-1353/1391/1533/1534/ United States v. 7
Buchanan, et al. 1535/1537/1538/1590/1594/1780 1535/1537/1538/1590/1594/1780 Buchanan, et al.

Nevertheless, such cases also involved unique circumstances. the district court commented on the strength of their
In Saccoccia, the appellant had not presented findings to the challenge, the government stated that the last portion of the
district court regarding the non-reliability of such evidence, so juror’s answer—“I really don’t trust our
those materials could not inform the district court’s decision. newspaper”—indicated, in its view, “a general distrust of
See 58 F.3d at 777 n.19; cf. Carr v. United States, 25 F.3d what she read or saw or heard.” The district court then
1194, 1202 n.3 (3d Cir. 1994) (declining to take judicial overruled the Batson objection, finding the government’s
notice that nearly all currency contains detectable traces of justification “logical” and race-neutral. On appeal, the
narcotics). And in Akins, illegal drugs were found in the bag defendants contend that the government’s reason for the
of the defendant whose money was also sniffed by a narcotics peremptory challenge was “merely subterfuge” for its “real
dog. See 995 F. Supp. at 814. Indeed, when there were other purpose” of excluding the juror because of her race.
factors diminishing the reliability of a separate dog sniff, the
Akins Court concluded that the evidence was unduly “The government cannot use its peremptory challenges in
prejudicial and did not allow its admission. See 995 F. Supp. a criminal case to exclude members of the venire from the
at 814 (finding limited probative value and unfair prejudice jury solely on the basis of their race.” United States v. Hill,
for a sniff of money which was contained in a drawer in a 146 F.3d 337, 340 (6th Cir. 1998). In determining whether
DEA interdiction room). such a violation occurred, the framework is well-settled:
In Carr, Judge Becker voiced perhaps the strongest case for To establish a violation of equal protection under Batson,
finding dog-sniff evidence inadmissible in particular cases: the defendant must first make a prima facie showing that
the prosecutor exercised peremptory challenges based on
If any of the many studies [regarding currency race. The burden of persuasion then shifts to the
contamination] is valid, then the fact that a dog alerted to prosecution to articulate race-neutral reasons for the
a large number of bills in United States currency which strikes. The prosecutor must convey a reason that is
has circulated in a major metropolitan center (at which “clear and reasonably specific.”
the studies are directed) is meaningless and likely quite
unfairly prejudicial, see Fed. R. Evid. 403, and evidence United States v. Gibbs, 182 F.3d 408, 438-39 (6th Cir. 1999)
thereof should have been excluded. Although having (citing and quoting Batson) (citations omitted). The reason
been directed to many of the studies . . . , the government given, however, “need not be particularly persuasive, or even
in its brief has not disputed the validity of any of the plausible, so long as it is neutral.” United States v. Harris,
studies mentioned above [nor] pointed to any 192 F.3d 580, 586 (6th Cir. 1999).
countervailing studies . . . . It is thus my considered
opinion that the fact that numerous studies by Here, the government offered its reason for striking the
governmental and private agencies, studies which stand juror in question before the district court could evaluate
unrefuted, strongly suggest that a trained canine will alert whether the defendants had set forth a prima facie case. Such
to all bundles of used currency does not permit the jury a sequence of events “renders the initial question of whether
to draw a reasonable inference that the person in prior the defendant[s] established a prima facie case moot.” Id. at
possession of such currency was a drug trafficker or 587 (citing Hernandez v. New York, 500 U.S. 352, 359
associated with one. Indeed, I am inclined to the view (1991)). The prosecutor in this case, as noted above,
that the information now available establishes a strong expressed the belief that there was a risk that the juror would
8 United States v. Nos. 98-1353/1391/1533/1534/ Nos. 98-1353/1391/1533/1534/ United States v. 21
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“distrust” what she may hear or read during the course of the evidence.2 In United States v. $5,000 in United States
trial. This belief was based on the juror’s written comment Currency, 40 F.3d 846 (6th Cir. 1994), this court held that the
that she did not trust her newspaper. We conclude that such evidentiary value of the narcotics dog’s alert was minimal,
a belief, although perhaps not “particularly persuasive,” was and “insufficiently indicative of probable cause.” Id. at 848-
at least plausible and a sufficiently neutral justification to 49. The court cited cases and studies indicating that up to
overcome the defendants’ Batson challenge. ninety percent or more of bills test positive for traces of
cocaine. See id. at 849. This conclusion followed a previous
3. The defendants’ challenge to the jury venire panel which had found that dog-sniff evidence had only weak
probative value. See United States v. $53,082.00 in United
At the conclusion of the jury selection process, the States Currency, 985 F.2d 245, 250 n.5 (6th Cir. 1993).
defendants objected to the racial makeup of the entire jury Other circuits have similarly doubted the utility of such
panel itself, contending that it was not representative of the evidence. See, e.g., United States Currency, $30,060.00, 39
voting or driving population of the Western District of F.3d at 1043 (concluding that statistics showing widespread
Michigan. In response to a request by the district court, the currency contamination greatly diminishes the probative value
government called the jury clerk to testify about the of positive dog sniffs of money, and that continued reliance
procedures used to assemble jury venires in the district. The of courts and law enforcement officers on such evidence is
district court thereafter overruled the objection. In their “logically indefensible”) (citation omitted); United States v.
appeals, the defendants assert that the Jury Selection and $191,910.000 in United States Currency, 16 F.3d 1051, 1062
Service Act, 28 U.S.C. §§ 1861-78, and the Sixth n.21 (9th Cir. 1994) (noting that “[i]n recent years, courts
Amendment entitled them to a jury venire that contained more have increasingly questioned the reliability of dog alerts” on
African-Americans. currency); Jones v. Drug Enforcement Agency, 819 F. Supp.
698, 719, 720 (M.D. Tenn. 1993) (concluding that because
“The Sixth Amendment requires that the jury venire from contaminated currency is widespread, evidence of a “narcotic-
which a jury is selected represent a ‘fair cross-section’ of the trained dog’s ‘alert’ to the currency is of extremely little
community.” United States v. Allen, 160 F.3d 1096, 1103 probative weight”).
(6th Cir. 1998) (quoting Taylor v. Louisiana, 419 U.S. 522,
528 (1975)). The factors to consider are set forth in Duren v. Courts generally have not translated these doubts in the
Missouri, 439 U.S. 357 (1979), and are as follows: forfeiture realm into an outright prohibition under Fed. R.
Evid. 403. See, e.g., United States v. Saccoccia, 58 F.3d 754,
In order to establish a prima facie violation of the 778 (1st Cir. 1995) (affirming admission of dog-sniff
fair-cross-section requirement, the defendant must show evidence); United States v. Akins, 995 F. Supp. 797, 814
(1) that the group alleged to be excluded is a “distinctive” (M.D. Tenn. 1998) (allowing dog-sniff evidence and
group in the community; (2) that the representation of concluding that it was not “unduly prejudicial”).
this group in venires from which juries are selected is not
fair and reasonable in relation to the number of such
persons in the community; and (3) that this
underrepresentation is due to systematic exclusion of the 2
The issue of the reliability of dog-sniff evidence emerges in two
group in the jury-selection process. different contexts: 1) as here, whether it should be allowed as evidence,
and 2) whether it is sufficiently indicative of probable cause for forfeiture
purposes.
20 United States v. Nos. 98-1353/1391/1533/1534/ Nos. 98-1353/1391/1533/1534/ United States v. 9
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______________________ Id. at 364. In this case, the government acknowledges that
African-Americans are a “distinctive” group for the purposes
CONCURRENCE of the Duren analysis. But even if the defendants could show
______________________ that the jury venire assembled for their trial was
underrepresentative of their community, they have failed to
NATHANIEL R. JONES, Circuit Judge, concurring, with show that such underrepresentation was the result of a
MOORE, J., joining in Part I only. “systematic exclusion” of African-Americans from the jury
selection process.
I.
The testimony of the jury clerk established that African-
We concur with the majority, and agree with its reasoning Americans comprise 4.58% of the total population of the
on most aspects of this complex case. Nonetheless, we write counties located within the Grand Rapids jury wheel. Of
separately because we are persuaded by Murray’s and those residents who qualify for jury service, 2.49% are
Washpun’s argument that the officer testimony that trained African-American. In the instant action, there were two
canines reacted positively to currency found on them should African-Americans in a venire of seventy, constituting 2.86%
have been ruled inadmissible. Both defendants contend that of the venire, which slightly exceeds the proportion of
this “dog-sniff” evidence is inherently unreliable because it African-Americans in the Grand Rapids area qualified to
does not necessarily indicate drug activity on their part, citing serve as jurors. These statistics indicate that there was no
studies finding that anywhere from seventy to ninety-six1 violation of the fair cross-section requirement in this case.
percent of United States currency is tainted with narcotics. Moreover, even if the statistics could be viewed as
They presented these statistics to the district court through underrepresentative, the defendants did not present any
their motions in limine and oral arguments. evidence of “systematic exclusion.” Accordingly, we
conclude that the district court did not err on this issue.
We agree that this dog-sniff evidence was inherently
unreliable and that the court abused its discretion in admitting 4. The defendants’ contentions regarding the
it. In recent years, this court and others have expressed method and manner of the jury selection
skepticism regarding the probative value of dog-sniff process
For the first time on appeal, the defendants take issue with
the method and manner of the jury selection process.
Specifically, they complain that the district court “unduly
restricted” their ability to exercise their challenges by
1
requiring that one attorney serve as lead counsel during voir
Defendants cite two reasons that such a large percentage of currency dire, and by setting time limits for deciding whether to
is tainted with narcotics. First, when currency is run through a exercise a peremptory challenge on a particular juror. None
mechanized counter at a bank, narcotics contained on some of the of the briefs provide any detail concerning the time limits
currency gets into the counter and is transferred to other currency.
Second, the ink on currency bonds with the narcotics. This argument imposed. Pursuant to Rule 52(b) of the Federal Rules of
echoes other courts’ and studies’ conclusions regarding “contaminated” Criminal Procedure, this court reviews such claims under the
money. See, e.g., United States v. United States Currency, $30,060.00, “plain error” standard. We find an insufficient basis in the
39 F.3d 1039, 1042 (9th Cir. 1994).
10 United States v. Nos. 98-1353/1391/1533/1534/ Nos. 98-1353/1391/1533/1534/ United States v. 19
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record to support the defendants’ jury selection claims, much VACATE his sentence and REMAND the same for
less any evidence of plain error. reconsideration in light of the district court’s erroneous belief
that it did not have discretion to depart from the applicable
B. Issue regarding leniency offered certain government sentencing guideline.
witnesses
The defendants contend that, by offering leniency to several
witnesses who testified at trial, the government violated 18
U.S.C. § 201. That section provides, in pertinent part, as
follows:
Whoever . . . directly or indirectly, gives, offers or
promises anything of value to any person, for or because
of the testimony under oath or affirmation given or to be
given by such person as a witness upon a trial, hearing,
or other proceeding, before any court . . . shall be fined
under this title or imprisoned for not more than two
years, or both.
Id. § 201(c)(2).
The defendants’ challenge essentially invokes the now
well-known Tenth Circuit decision of United States v.
Singleton, 144 F.3d 1343 (10th Cir. 1998), which has since
been vacated and rejected en banc, 165 F.3d 1297 (10th Cir.
1999). Moreover, this court has previously ruled that such
prosecutorial conduct does not implicate § 201(c)(2). See
United States v. Ware, 161 F.3d 414, 418-24 (6th Cir. 1998)
(holding that § 201(c)(2) does not preclude the government
from offering leniency to a defendant’s accomplice in
exchange for truthful testimony against the defendant).
Accordingly, we find no merit in this argument.
C. Issues regarding evidence admitted during the trial
1. Standard of review
“The trial court’s determinations of admissibility and
relevancy depend on the exercise of sound judgment within
the context of the entire trial. The trial court's determination
18 United States v. Nos. 98-1353/1391/1533/1534/ Nos. 98-1353/1391/1533/1534/ United States v. 11
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5. Other sentencing issues should not be disturbed absent a clear abuse of discretion.”
United States v. Seago, 930 F.2d 482, 494 (6th Cir. 1991)
The other sentencing issues raised by the defendants (citations omitted).
concern the quantity of drugs attributable to each individual,
the adequacy of the factual findings of the district court, and 2. Evidence of particular drug transactions
the fairness of their comparative sentences. We have involving Kellum and Murray
carefully reviewed the record as to each of these contentions
and find them to be without merit, much less rising to the At trial, evidence was admitted regarding the 1990 seizure
“clearly erroneous” level. of sixty-four crack “baggies” from Kellum. In addition,
Murray unsuccessfully sought to exclude evidence of a
E. Swindle’s appeal controlled sale of crack by him to an undercover police officer
in 1994. On appeal, both Kellum and Murray argue that the
Swindle’s counsel filed a brief on appeal and also a motion testimony by the police regarding the seizure and the drug
to withdraw pursuant to Anders v. California, 386 U.S. 738 transaction constituted evidence of “other acts” that should
(1967). After a review of the entire record, counsel was of the have been excluded pursuant to Rule 404(b) of the Federal
opinion that there were no meritorious grounds for appeal. Rules of Evidence. In response, the government contends that
He did, however, identify nine conceivable issues. These the testimony was admissible as evidence of acts in
included the questions of whether the buyers and sellers furtherance of the conspiracy.
charged in the case could properly be considered a part of the
charged conspiracy, whether statements of coconspirators Rule 404(b) provides as follows:
were introduced against Swindle in violation of the hearsay
rule, whether his criminal history score should include a point Evidence of other crimes, wrongs, or acts is not
for a thirty-day sentence of secured detention imposed when admissible to prove the character of a person in order to
he was a juvenile, and whether the district court erred by show action in conformity therewith. It may, however,
considering Swindle’s prior marijuana conviction when be admissible for other purposes, such as proof of
assessing his criminal history. In a separate pro se brief, motive, opportunity, intent, preparation, plan,
Swindle raises several of the challenges already discussed in knowledge, identity, or absence of mistake or accident,
connection with the other defendants, and further contends provided that upon request by the accused, the
that his counsel rendered ineffective assistance by failing to prosecution in a criminal case shall provide reasonable
request a lesser-included offense instruction and that the notice in advance of trial, or during trial if the court
district court failed to determine at sentencing whether he excuses pretrial notice on good cause shown, of the
should be held accountable for the criminal activity of others. general nature of any such evidence it intends to
Our review of the record convinces us that none of the above introduce at trial.
contentions has any merit.
Fed. R. Evid. 404(b). Here, however, Rule 404(b) is not
III. CONCLUSION applicable because the evidence constitutes “a continuing
pattern of illegal activity.” United States v. Barnes, 49 F.3d
For the reasons set forth above, we AFFIRM the 1144, 1149 (6th Cir. 1995). Even if Rule 404(b) applied in
convictions and sentences of all of the defendants except this situation, the district court did not abuse its discretion in
Buchanan. As to Buchanan, we AFFIRM his conviction, but
12 United States v. Nos. 98-1353/1391/1533/1534/ Nos. 98-1353/1391/1533/1534/ United States v. 17
Buchanan, et al. 1535/1537/1538/1590/1594/1780 1535/1537/1538/1590/1594/1780 Buchanan, et al.

admitting the testimony because the evidence served the Criminal Procedure. Pursuant to Derring’s plea agreement,
“legitimate purpose of showing the background and the government had “agree[d] to make a good faith evaluation
development of a conspiracy.” United States v. Paulino, 935 of [his] cooperation under th[e] agreement in determining
F.2d 739, 755 (6th Cir. 1991) (citations and internal quotation whether to move for a reduction of [his] sentence . . . .”
marks omitted). Thus, the defendants’ argument is without Derring contends that although his plea agreement did not
merit. require the government to make such a motion, the
government’s decision must have been based on an
3. Evidence of drug-sniffing dogs’ positive unconstitutional reason in light of his full cooperation. He
indications of a narcotics scent on currency suggests that the government discriminated against him on the
seized from Murray and Washpun basis of his age when it made a substantial assistance motion
in connection with a younger co-defendant, but not himself.
In their appeal, Murray and Washpun also take issue with In response, the government argues that (1) Derring never
the district court’s decision to admit evidence that dogs objected at sentencing and (2) it declined to file a substantial
trained to detect the scent of narcotics reacted positively to assistance motion because of Derring’s breakdown in
currency seized from them. They contend that such evidence cooperation, including a motion by Derring to withdraw his
should have been excluded pursuant to Rule 403 of the guilty plea.
Federal Rules of Evidence. In response, the government
concedes that the Sixth Circuit views such evidence as having The record does not indicate why the government chose not
minimal probative value, but argues that the evidence is to move for a reduction. This fact, however, does not by itself
nonetheless admissible. imply that the government was motivated by an
unconstitutional reason, nor does it entitle Derring to a
Rule 403, in pertinent part, provides that “evidence may be hearing on the matter. See United States v. Bagnoli, 7 F.3d
excluded if its probative value is substantially outweighed by 90, 91-92 (6th Cir. 1993) (holding that the defendant was not
the danger of unfair prejudice . . . .” Fed. R. Evid. 403. Prior entitled to a hearing as to whether the government acted
cases support the proposition that because a high percentage unconstitutionally by not filing a substantial assistance
of currency in circulation is tainted with a scent or residue of motion, despite the fact that the defendant provided some
narcotics, evidence of a positive indication by a drug-sniffing assistance and the government did not expressly explain its
dog may have minimal evidentiary value. See United States reasons for declining to file the motion). In essence, the
v. $5,000 in U.S. Currency, 40 F.3d 846, 849 (6th Cir. 1994). government has discretion in deciding whether to file a
Indeed, Judge Becker of the Third Circuit has set forth a substantial assistance motion. That decision will not be
compelling argument that there should be a strong questioned unless the defendant can make “a substantial
presumption against the admissibility of such evidence. See threshold showing of an unconstitutional motive.” Id. at 92.
United States v. Carr, 25 F.3d 1194, 1214-18 (3rd Cir. 1994) Our review of the record reveals that Derring failed to make
(Becker, J., concurring in part and dissenting in part). Other such a showing. As such he was not entitled to a hearing and
cases, however, instruct otherwise. See, e.g., United States v. his argument on appeal is without merit.
Golb, 69 F.3d 1417, 1428 (9th Cir. 1995) (holding that the
district court did not abuse its discretion in admitting
evidence of currency dog-sniffs and noting that “it was within
the jury’s province to resolve these competing opinions and
16 United States v. Nos. 98-1353/1391/1533/1534/ Nos. 98-1353/1391/1533/1534/ United States v. 13
Buchanan, et al. 1535/1537/1538/1590/1594/1780 1535/1537/1538/1590/1594/1780 Buchanan, et al.

not affirmatively show that the district judge knew he had determine what weight to accord the government's
such authority). evidence”); United States v. Saccoccia, 58 F.3d 754, 777-78
(1st Cir. 1995) (“Even though widespread contamination of
The district court specifically expressed its belief, however, currency plainly lessens the impact of dog sniff evidence, a
that it could not consider Buchanan’s alleged withdrawal trained dog’s alert still retains some probative value. . . .
from criminal activity prior to his arrest. At sentencing, the [T]hough the dog sniff evidence likely bolstered the
district court stated as follows: “[T]he guidelines definitely do prosecution’s case and served to inculpate the defendant, we
not allow for the Court to look at that period of time between are not convinced that it presented a substantial risk of unfair
the time of ceasing of criminal activity and the time of prejudice.”).
apprehension to say this is a different level.” Although we
express no opinion as to whether such action warrants a Given the uncertainty of this issue, Washpun’s and
downward departure, the district court was obligated to Murray’s arguments might have merit. Nonetheless, I see no
consider it because it is a mitigating factor that has not been need to presently decide the question of whether there should
adequately considered in formulating the Sentencing be a presumption against the admissibility of testimony
Guidelines. See United States v. Coleman, 188 F.3d 354, regarding a drug dog’s positive indications of narcotics
358-60 (6th Cir. 1999) (en banc) (holding that a district court residue on currency seized from a defendant. Even if the
may not categorically exclude any non-prohibited factors district court did in fact abuse its discretion in admitting the
from consideration for departure). In Coleman, we noted as testimony regarding the dogs’ alerts, any error was harmless
follows: in light of the substantial amount of other evidence linking
both Murray and Washpun to the conspiracy and to specific
[T]here are an unquantifiable number of potential criminal actions.
departure factors, including heretofore unknown factors
that have not been previously considered by a court. 4. The use of certain drug and packaging
Simply because a court has not directly ruled on the exhibits as demonstrative aids during the
factor at issue does not excuse the district court from testimony of the government’s drug-
considering the factor as a potential basis for a downward trafficking expert
departure.
At trial, a government witness with expert knowledge of the
Id. at 359. Accordingly, we must vacate Buchanan’s sentence inner workings of the drug-trafficking trade testified about the
and remand the case to the district court for the limited way in which drug dealers package and distribute narcotics.
purpose of considering whether Buchanan’s alleged To illustrate the testimony, the government marked for
withdrawal from criminal activity prior to arrest warrants a identification purposes actual packages of powder cocaine
downward departure. and crack cocaine. These packages were never introduced
into evidence, but were seen by the jury. On appeal, the
4. Derring’s assertion that the government defendants contend that the use of such demonstrative aids
breached the terms of his plea agreement was inflammatory and improper.
Derring challenges the government’s decision to forego We disagree. Our review of the record indicates no
filing a motion to reduce his sentence for substantial inappropriate use of the packages. Immediately after each
assistance as permitted by Rule 35(b) of the Federal Rules of
14 United States v. Nos. 98-1353/1391/1533/1534/ Nos. 98-1353/1391/1533/1534/ United States v. 15
Buchanan, et al. 1535/1537/1538/1590/1594/1780 1535/1537/1538/1590/1594/1780 Buchanan, et al.

package was identified, the government, through questioning, 2. The nature of the drugs involved in the
established that the drugs exhibited were not seized from the conspiracy
defendants in this case. Moreover, the defendants failed to
object to the use of the demonstrative evidence and did not For the first time on appeal, several defendants challenge
request a limiting instruction. Based upon the foregoing, we the adequacy of the district court’s findings with respect to the
conclude that the use of the packages was permissible. nature of the drugs involved in the conspiracy. They contend
that there was insufficient evidence that the narcotics were
5. Other evidentiary issues crack cocaine as opposed to powder cocaine. This argument
lacks merit. There was extensive evidence in the record that
The remaining evidentiary rulings challenged by one or the conspiracy involved both forms of cocaine and that the
more of the defendants concern the admissibility of defendants frequently “cooked” powder cocaine to convert it
photographs depicting the defendants consorting with each to crack. As this court has previously noted, the government
other and with other co-conspirators, the admissibility of a may establish the identity of a drug by circumstantial
videotape showing Ford engaging in a drug transaction, and evidence. See United States v. Wright, 16 F.3d 1429, 1439
the timing of the government’s disclosure of that videotape to (6th Cir. 1994). Moreover, expert testimony is not necessary.
defense counsel. After viewing the photos, we find nothing A lay witness who has personal experience with crack cocaine
inflammatory or unfairly prejudicial about them, and our can establish that a substance is, indeed, crack. See id. at
examination of the record as to each of the other contentions 1439-40 (affirming the district court’s finding that the
shows them to be without merit. There is no just basis to find substance involved was crack cocaine based on testimony
an abuse of discretion by the district court on these from several government witnesses who had seen the
evidentiary issues. defendant “cutting” crack or had seen the substance and knew
it was crack based on their personal experience).
D. Sentencing issues
3. Buchanan’s motions for downward departure
1. Standard of review
On appeal, Buchanan asserts that the district court erred by
A district court’s factual findings underlying the application refusing to depart downward as to his criminal history
of the sentencing guidelines will not be disturbed unless category and his offense level. As noted above, a decision not
found to be clearly erroneous. See United States v. Mahaffey, to depart is unappealable unless a defendant can establish that
53 F.3d 128, 131 (6th Cir. 1995). Sentencing issues raised for the district court was unaware of its discretion to do so. With
the first time on appeal will not be considered unless the one exception, Buchanan has failed to make such a showing.
underlying ruling constitutes plain error. See United States v. A review of the record reveals that the district court
Barajas-Nunez, 91 F.3d 826, 830 (6th Cir. 1996). If the specifically considered Buchanan’s motions, but determined
district court is aware of its discretion to depart from the that a departure was not warranted. Such expressed
guidelines on the issue before it, a decision to forego a consideration is a sufficient indicator that the district court
downward departure is not appealable. See United States v. was aware of its authority to depart. See United States v.
Welch, 97 F.3d 142, 152 (6th Cir. 1996). Byrd, 53 F.3d 144, 145 (6th Cir. 1995) (rejecting the
defendant’s attempt to establish that the district court was
unaware of its discretion to depart even where the record did