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Topic: Why is Piece of the Rock open?
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untanglingwebs
El Supremo

"Investigation revealed that one Eddie Hernandez, who is currently serving an 18 year federal custody sentence , met Rolando Hernandez in Miami Florida. The two, although they have the same last name, are not related. Eddie Hernandez had a source of supply for cocaine, one Henry Bareu of Miami Rolando Hernandez knew of one Tony Lemus of Columbus, Ohio and Miami, Florida, who was in need of a source of supply for Marzellus Wilson's organization in Columbus, Ohio. Rolando Hernandez agreed to supply multi-kilo quantities of cocaine for Marzellus Wilson through Tony Lemus.

After all connections were made , cocaine began to move between Miami and Columbus, starting in late 1983 or early 1984. Monthly shipments of kilogram quantities were made. The very first deal was for two kilograms."
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untanglingwebs
El Supremo

"Rolando Hernndez met Larry White through Marzellus Wilson. Marzellus Wilson introduced Larry White as his partner to Mr. Hernandez. Rolando Hernandez and Marzellus Wilson traveled on occasion to Flint, Michigan to pick up money for drugs which had been delivered to Columbus, Ohio. Rolando Hernandez began supplying Larry White's organization with cocaine in Flint, Michigan.

Juan Jesus Roca of Miami, Florida was hired in March of 1984 as a driver/deliverer of cocaine from Miami to Columbus, Ohio, and Flint, Michigan. Rolando Hernandez, Eddie Hernandez, and Marzellus Wilson purchased a Mercury Lynx automobile for Juan Roca to use for his deliveries. In November of 1984, Juan Roca was arrested in Miami on conspiracy charges. Eddie Hernandez was named in the same indictment. "
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untanglingwebs
El Supremo

" After Juan Roca was arrested and could no longer deliver cocaine to flint or Columbus, Ohio, Larry White and Marzellus Wilson would send people to Miami to pick up a kilo or multi-kilo quantities. Duncan Pea and Loretta Walton made trips to Florida for this purpose.

In November of 1985, Marzellus Wilson went back to prison on a parole violation. Rolando Hernandez then began dealing directly with Larry White. From November of 1985, all through 1986 and up to August of 1987, two to three kilo quantities were delivered on a monthly basis to Flint, Michigan."
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untanglingwebs
El Supremo

" Marvin Tragash, a 60 year old white male, was hired as a driver, delverer. He delivered cocaine from Miami to Larry White in Flint. Mr. tragash had prostrate surgery and couldn't make the trip. During his convalescence, Duncan Pea was sent to Miami by Larry White to pick up the cocaine. When mr. Tragash was able to return to work, he was busted in Dayton, Ohio in August of 1987 with three kilograms of cocaine in his possession. he is currently serving an eight year federal custody sentence.

After August of 1987, Larry White began to "feel the heat", and knew his phone had been tapped. FBI agents had not only tapped the phone of mr. White, they had also palaced a "bug" in his home at 522 Page Street, Flint, Michigan. The electronic surveillance occurred for two, 30 day periods between April and may of 1986 and again between July and August, 1986. On the wiretaps, the defendant was heard stating that he had 15 kilograms on hand and had sold four to five kilograms per week.'
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untanglingwebs
El Supremo

"From August, 1987 up to April 1988, Rolando Hernandez delivered to Larry White single kilogram quantities sporadically, as mr. White's operation began to wind down.

On April 22, 1988, federal agents effected a search warrant at 522 page, Flint, Michigan, Cocaine residue was found. However, no large quantities of cocaine were found. Four weapons were seized, three of which were loaded. Police seized a loaded 12 gauge folding stock shotgun marked "for Police use only". This weapon had been purchased by Flint Police officer Charles Mitchell. A loaded 44 magnum pistol and a loaded nine millimeter pistol were seized. A .25 caliber semi-automatic pistol which was not loaded was also seized."
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untanglingwebs
El Supremo

"During the trial, Mr. White took the stand on his own behalf. He testified under oath that the large sums of money being delivered to Rolando Hernandez were for loan made by Mr. Hernandez. he also testified that money he sent to Marzellus Wilson was also a loan payment. Mr. White testified that he knew his phone was tapped and therefore, he made incriminating statements to entice police to raid his home so he could sue them. Mr. White testified under oath that he was not involved in narcotics activity and that Rolando Hernandez were not for the purpose of dealing drugs but were due to a romantic interest in Loretta Wilson.

Mr. White advised that the police had been harassing him ever since he rented a hall to the Students for a Democratic Society meeting in the early 70's.""
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untanglingwebs
El Supremo

White stated he fathered six children by five different women, ages 22 years to 2 years.

Larry White alleged he was part-owner of Beauty All Over at 5001 N. Saginaw. Genesee County DBA records showed the owner as Sharon Hardy, with a DBA valid until 1990. A review of the records indicate a name change to Beauty Masters with the owners listed as Lillian Dickerson, David White, Ida Mae White and Barbara Veasley. At that time the property at 5001 N. Saginaw was deeded to L.H. and Dorothy Baum of Scottsdale, Arizona.

Larry White claimed self employment, sometimes as a process server and as a nightclub owner (Piece of the Rock) from 1967 to 1972 and later from 1978 to 1983. He showed a negative net worth of $52,900.00.

While Larry White showed the courts very little in the way of assets but claimed he owed John Hightower $16,000 and his sister Barbara Veasley $40,000.
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untanglingwebs
El Supremo

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Home Browse Decisions F.Supp.2d 295 F.Supp.2d 295 F.Supp.2d 709 (2002)


U.S. v. WHITE

No. CR. 88-50066.

295 F.Supp.2d 709 (2002)

UNITED STATES of America, Plaintiff, v. Larry Noal WHITE, Charles Eddie Mitchell Defendants.

United States District Court, E.D. Michigan, Southern Division.

November 27, 2002.

View Case Cited Cases Citing Case

Attorney(s) appearing for the Case

Barney R. Whitesman, Flint, MI, for Larry White.

Larry White, FCI, Elkton, Elkton, OH, pro se.

Charles Eddie Mitchell, FCI Elton, Elkton, OH, Pro se.

ORDER ACCEPTING AND ADOPTING REPORT AND RECOMMENDATION REGARDING DEFENDANTS' MOTION "TO CORRECT ILLEGAL SENTENCES"

GADOLA, District Judge.
I. INTRODUCTION

Defendants filed a motion "to correct illegal sentences" on August 2, 2002 based on Rule 35 of the Federal Rules of Criminal Procedure and on the Court's inherent authority to correct an illegal sentence. Before the Court is the Report and Recommendation of the Honorable Wallace Capel, Jr., United States Magistrate Judge, on this motion. The Magistrate Judge recommends that this Court deny Defendants' motion on procedural and substantive grounds. Defendants objected to the Report and Recommendation through their counsel and through their own filings. Respondent did not file a response to these objections. Upon review under the standard below, this Court will overrule the objections and will accept the Report and Recommendation.
II. STANDARD OF REVIEW

The Court's standard of review for a Magistrate Judge's Report and Recommendation depends upon whether a party files objections. If a party does not object to the Report and Recommendation, the Court does not need to conduct a review by any standard. See Lardie v. Birkett, 221 F.Supp.2d 806, 807 (E.D.Mich.2002) (Gadola, J.). The Supreme Court observed that "[i]t does not appear that Congress intended to require district court review of a magistrate's factual or legal conclusions, under a de novo or any other standard, when neither party objects to those findings." Thomas v. Arn, 474 U.S. 140, 150, 106 S.Ct. 466, 88 L.Ed.2d 435 (1985).

If a party does object to portions of the Report and Recommendation, the Court reviews those portions de novo. Lardie, 221 F.Supp.2d at 807. The Federal Rules of Civil Procedure dictate this standard of review in Rule 72(b), which states, in relevant part, that
[t]he district judge to whom the case is assigned shall make a de novo determination upon the record, or after additional evidence, of any portion of the magistrate judge's disposition to which specific written objection has been made in accordance with this rule. The district judge may accept, reject, or modify the recommended decision, receive further evidence, or recommit the matter to the magistrate judge with instructions.

Fed.R.Civ.P. 72(b). Here, because Defendants filed objections, this Court reviews de novo those portions to which an objection has been made. See Lardie, 221 F.Supp.2d at 807.

De novo review in these circumstances requires at least a review of the evidence before the Magistrate Judge; the Court may not act solely on the basis of a Magistrate Judge's Report and Recommendation. See 12 Wright, Miller & Marcus, Federal Practice and Procedure: Civil 2d § 3070.2 (1997); see also Hill v. Duriron Co., 656 F.2d 1208, 1215 (6th Cir. 1981). The Court may supplement the record by entertaining additional evidence, but is not required to do so. 12 Wright, Federal Practice § 3070.2. After reviewing the evidence, the Court is free to accept, reject, or modify the findings or recommendations of the Magistrate Judge. See Lardie, 221 F.Supp.2d at 807. If the Court accepts a Report and Recommendation, the Court is not required to state with specificity what it reviewed; it is sufficient for the Court to state that it engaged in a de novo review of the record and adopts the Report and Recommendation. See id.; 12 Wright, Federal Practice § 3070.2.
III. ANALYSIS

In this case, the Magistrate Judge recommends that the motion be denied on both procedural and substantive grounds. Specifically, the Magistrate Judge recommends that the motion be denied because "the district court has no authority to correct or reduce the Defendants' sentences." Rep. & Rec. at 13. The Magistrate Judge further recommends that even if the Court did have authority, the law of this case indicates that the Court did not commit error and that there is no violation of the ex post facto clause. Id. The Court notes at the outset that Federal Rule of Criminal Procedure 35 has been amended since the filing of the Report and Recommendation and the objections. This amendment, however, does not affect the reasoning or substance of the Report and Recommendation or the objections.

Defendants, through their counsel, raise three objections to the Report and Recommendation. In the first objection, Defendants argue that this Court does have jurisdiction to correct an illegal sentence under Federal Rule of Criminal Procedure 35. Defendants argue, through their attorney, that three cases cited in the Report and Recommendation to show that the Court does not have jurisdiction are each distinguishable from the present case. The Court has reviewed each of these three cases and the plain language of Rule 35. The Court is convinced that it does not have authority under Rule 35 or under its inherent power to correct the sentences of Defendants White and Mitchell, for the reasons stated in the Report and Recommendation. See Rep. & Rec. at 10-13.

Defendant's second objection raised through counsel is that the Report and Recommendation improperly relies on 18 U.S.C. § 3583 as authority for imposing supervised release. Defendants rely primarily on Bifulco v. United States, 447 U.S. 381, 100 S.Ct. 2247, 65 L.Ed.2d 205 (1980), for this objection. Other courts addressing this issue have held that the holding in Bifulco has been superceded by the statutory amendments in 18 U.S.C. § 3583. See, e.g., United States v. Van Nymegen, 910 F.2d 164, 166 (5th Cir.1990). Furthermore, the Bifulco case addresses
[295 F.Supp.2d 713]
special parole, which is distinct from the supervised release that was imposed in this case. Id.

Defendants' third objection raised through counsel is that the Report and Recommendation improperly relies on cases from other circuits. Defendants argue that law of the Sixth Circuit does not support the proposition that drugs from an earlier part of the conspiracy can be aggregated with drugs from a later part of the conspiracy to qualify for a harsher penalty under laws that became effective during the later part of the conspiracy. The Sixth Circuit, however, has stated in a published opinion that "a person convicted of conspiracy may be sentenced under an amended statute that increases the sentence if the conspiracy continues after the effective date" without violating the ex post facto clause. United States v. Frazier, 936 F.2d 262, 267 (6th Cir.1991) (citing United States v. Henson, 848 F.2d 1374, 1385 (6th Cir.1988)). Defendants argue that the Frazier case should be distinguished because the reasoning is dicta: the sentence imposed was the same whether or not the drug amounts were aggregated. The Court, however, considers the reasoning of the Frazier court to be persuasive guidance from the Sixth Circuit on this issue.

Furthermore, the Sixth Circuit addressed the issue of the appropriate sentencing guidelines in the direct appeal of this case: "a defendant who commits a continuing offense beginning before the effective date of the guideline and ending after the effective date of the guidelines can be sentenced under the guidelines without violating the ex post facto clause of the Constitution." United States v. Walton, et al., 908 F.2d 1289, 1299 (6th Cir. 1990). The Sixth Circuit also noted that "the conspiracy at issue in this case continued long after the November 1, 1987 effective date for the guidelines." Id. This reasoning is analogous to the reasoning regarding the amendments to statutes. The Court is persuaded that the aggregation of drug quantities before and after the statutory amendment was not improper.

Defendants also submitted objections pro se. The Court has reviewed these objections as well as the attached exhibits which include charts, transcripts, excerpts from the congressional record, case law, and other materials. Having conducted a de novo review in accordance with the standard articulated above, the Court concludes that the Magistrate Judge's reasoning and conclusions are sound. The Court agrees with the Magistrate Judge that the district court does not have the authority under Rule 35 to correct the Defendants' sentences. Even if the Court did have such authority, Defendants have not persuaded this Court that a correction is warranted. The Court, therefore, shall overrule Defendants' objections and shall accept the report and recommendation as the opinion of the Court.
IV. OTHER MOTIONS

Also before the Court are several other motions for bond, bail, and the withdrawal of counsel for Defendants. The Court has considered these motions and will dispose of them as follows. The Court will permit counsel to withdraw from further representation of the Defendants. Counsel states that Defendants, "through a family representative, ask counsel to withdraw as their attorney." Defendants were served with a copy of this motion and have not objected to it. Additionally, Defendants have pursued their own representation by filing their own pleadings. The Court will therefore grant this motion.

Defendants also filed a motion for release on bail, which they then requested to withdraw. The Court will deem the motion withdrawn in accordance with Defendant's request. Defendants subsequently
[295 F.Supp.2d 714]
filed a motion for bond pending the outcome of Defendants' motion to correct illegal sentence. As this Court will deny the motion to correct illegal sentence, the Court will also deny the motion for bond as moot.
V. CONCLUSION

The Court agrees with the Magistrate Judge that the motion to correct the sentence should be denied.

ACCORDINGLY, IT IS HEREBY ORDERED that Defendants' objections [docket entries 811, 812, and 816] are OVERRULED.

IT IS FURTHER ORDERED that the report and recommendation [docket entry 810] is ACCEPTED and ADOPTED as the opinion of this Court.

IT IS FURTHER ORDERED that Defendants' motion to correct illegal sentences [docket entry 797] is DENIED.

IT IS FURTHER ORDERED that attorney Charles Grossman's motion to withdraw as counsel for Defendants [docket entry 813] is GRANTED.

IT IS FURTHER ORDERED that Defendants' motion to withdraw their motion for bail pending outcome of the motion to correct illegal sentences [docket entry 819] is GRANTED, and accordingly the motion for bail [docket entry 817] shall be considered withdrawn.

IT IS FURTHER ORDERED that Defendants' motion for bond pending outcome of motion to correct illegal sentencing [docket entry 815] is DENIED.
REPORT AND RECOMMENDATION

CAPEL, United States Magistrate Judge.
I. INTRODUCTION

Before the Court is "Motion of Larry White and Charles Mitchell to Correct Illegal Sentences," brought pursuant to Federal Rule of Criminal Procedure Rule 35. The Defendants claim that the sentences imposed by the district court in the above entitled case were unlawful for two reasons. First, because the conspiracy, section 846, had not been amended to include the harsher penalties of the Sentencing Reform Act of 1984 or the Anti-Drug Abuse Act of 1986; and secondly, because the court aggregated the drug's weight involved in the early conspiracy years of lower penalties with the drugs Involved in the later years of harsher penalties, for the purpose of applying the harsher penalties of the later statutes at the time of sentencing. Defendants contend that the court's sentence was illegal and a violation of Ex Post Facto Clause principles.

The government maintains that the Defendants' arguments are frivolous, and that their motion should be denied on both procedural and substantive grounds. I am inclined to agree.
II. CASE HISTORY
A. Defendants' Statement of Case History1

On September 30, 1988, Larry N. White and Charles E. Mitchell, along with others, were indicted by a grand jury in the Eastern District of Michigan, at Flint. The indictment returned four counts. Count One(1): A Violation of Sec.406 of the Comprehensive Drug Abuse Prevention and Control Act of 1970 P.L. 91-513, Title II (21 U.S.C.846). Count Two(2) and Three(3): A Violation of Public Law 99-570 Sec. 848. Count Four(4): A Violation of Sec. 406 of the Controlled Substance Act of 1970 P.L. 91-513, Title II (21 U.S.C. 846 Conspiracy). White was named in Count One(1) and Two(2), and Mitchell was named in only Count One(1). The object
[295 F.Supp.2d 715]
of the conspiracy, 21 U.S.C. 841(a)(1)(1)(B), was never charged or cited within the indictment.

On March 8, 1989, on the government's motion, Counts Two(2) and Three(3) were dismissed. Therefore, at the time of trial, White and Mitchell were named only in Count One(1), which charged that the defendants participated in drug conspiracy from 1980 to September 30, 1988.

The time of the conspiracy, from 1980 to September 1988, straddled several changes of the substantive law for the underlying drug offense. From 1980 to 1984 the maximum penalty the defendants could have received was 15 years, with three years of special parole. Comprehensive Drug Abuse Prevention and Control Act of 1970 Pb.L. 91-513, § 404, 84 Stat. 1236, 1260. In 1984 the penalty was increased to 20 years without special parole if there was a kilogram or more of cocaine and for less than a kilogram it remained 15 years with special parole. Comprehensive Crime Control Act of 1984, Pub.L. No. 98-473, § 502, 98.Stat 1837, 2068. In 1986, the penalties again changed so that amounts less than 500 grams of cocaine carried a maximum penalty of 20 years, for 500grams to 5 kilograms it was 40 years and for 5 kilograms or more it was life imprisonment. The Anti-Drug Abuse Act also imposed supervised release, but that part of the act did not become effective until November 1, 1997. Also, as of November 1, 1997, prisoners lost their rights to parole under U.S.C. § 4205 or good time up to 120 days per year under U.S.C. § 4161, that being the effective date of the Sentencing Reform Act of 1984 which eliminates parole and limits good time to 54 days per year. Anti-Drug Abuse Act of 1986, Pub.L. No. 99-570, § 1002 100 Stat. 3201, 3207-26-4.

It is further noted that the above cited Comprehensive Crime Act of 1984 and the Anti-Drug Abuse Act of 1986 did not include provisions to include the specific penalties of the underlying offense into the conspiracy statute under which these defendants were charged, 21 U.S.C. § 846. It was not until November 18, 1988, over a month after the charged conspiracy ended, was § 846 amended to include the "same penalties" as those prescribed for the offense. Pub.L. 100-690.

Trial commenced on April 4, 1989, without a substantive violation of 21 U.S.C. 841 being charged or cited within the indictment. On May 10, 1989, both Defendants were found guilty, by a jury, on Count(1).

White received a sentence of 480 months (40 years) and Mitchell received a sentence of 292 months (24 years and 4 months) incarceration. Additionally, White and Mitchell were sentenced to three years of supervised released. These sentences were in excess of the maximum penalties allowed when the conspiracy began.
B. Government's Statement of Case History2

Defendants were convicted by jury verdict of having conspired to distribute multi-kilogram quantities of cocaine between June 1980 and September 1988, and sentenced to terms of 480 months (White) and 292 months (Mitchell) in 1989. Their convictions and sentences were affirmed on direct appeal, and the Supreme Court denied certiorari. United States v. Walton, et. al., 908 F.2d 1289 (6th Cir.1990), cert. denied, 498 U.S. 906, 111 S.Ct. 273, 112 L.Ed.2d 229 (1990). The opinion of the Sixth Circuit included the following holding:
We agree with the overwhelming weight of authority holding that a defendant who commits a continuing offense beginning before the effective date of the guidelines and ending after the effective date of the guidelines can be sentenced under the guidelines without violating the ex post facto clause of the Constitution. It is undisputed that the conspiracy at issue in this case continued long after the November 1, 1987 effective date for the guidelines.

Walton, 908 F.2d at 1299.

The government filed a Rule 35 motion to reduce White's sentence to reflect his cooperation in the investigation of other offenders, and his sentence was reduced to 300 months on February 5, 1992. White later filed as no. 92-40239 a motion to vacate his sentence pursuant to 28 U.S.C. § 2255, which was denied (docket no. 615). His appeal from that decision, too, was affirmed, and the Supreme Court again denied certiorari. White v. United States, 16 F.3d 1223, 1994 WL 20094 (6th Cir.1994)(table), cert. denied 512 U.S. 1244, 114 S.Ct. 2761, 129 L.Ed.2d 876.

On April 27, 1995 Mitchell filed as No. 95-40157 a motion to vacate his sentence pursuant to 28 U.S.C. § 2255. As part of this motion Mitchell argued that he had erroneously been sentenced under an amendment to 21 U.S.C. § 846 that took effect on November 18, 1988—several months after the indictment and the end of his offense. The government responded to this claim as follows:
As his seventh claim of error defendant Mitchell argues that his sentence was imposed retroactively under a statute that took effect after his offense, in violation of the Ex Post Facto clause of the Constitution. Defendant's direct appeal from his sentence established that the district court did not err in holding that the Sentencing Reform Act was properly applied to his offense, but the instant, rather convoluted claim is that his sentence somehow violated the sentencing provisions of the form of Sections 841 and 846 in force at the time of his offense.
This claim is identical, word-by-word, to that raised by co-defendant Loretta Walton in her motion to vacate sentence which was filed on March 1, 1995 . . . .
Defendant has neither stated nor implied any basis for his failure to raise this claim previously. Accordingly, his petition can and should be denied for failure to show cause for, and prejudice from his failure to present these claims either to this court at sentencing or to the Sixth Circuit on direct appeal. United States v. Frady, 456 U.S. 152, 102 S.Ct. 1584, 71 L.Ed.2d 816 (1982); United States v. Schlesinger, 38 F.3d 485 (9th Cir.1994); Scott v. United States, 997 F.2d 340 (7th Cir.1993).
Furthermore, the substance of defendant's current attack is clearly frivolous. He erroneously implies that Section 841(b)(1)(B) was not added to Title 21, United States Code until the effective date of Public Law 100-690. In fact, this law made only minor modifications to section 841. Section 841(b)(1)(B) was adopted as part of the Anti-Drug Abuse Act of 1986, Public Law 99-570, which became effective the same day as the Sentencing Guidelines [November 1, 1987], and therefore clearly was in effect at the time of defendant's offense and his sentencing. Defendant finally admits this later in his brief.
Defendant argues, however, that Section 841(b)(1)(B) does not apply to this case, because he was only convicted of conspiracy under Section 846. This is, of course, correct, but of no help to defendant. As he admits, at the time of his sentencing Section 846 provided:
Any person who attempts or conspires to commit any offense defined in this subchapter is punishable by imprisonment or fine or both which may not exceed the maximum punishment prescribed for the offense, the commission of which was the object of the attempt or conspiracy.
Therefore, Section 846 directed that his maximum penalty would be the maximum provided by Section 841(b) for the offense of distribution of cocaine—life imprisonment . . . .
Defendant's reference to the absence of detectable amounts of cocaine is simply irrelevant to the crime charged: conspiracy to distribute cocaine. Likewise, his citation of cases holding that mandatory minimum sentences did not apply to convictions under Section 846 is pointless; it is true that mandatory minimum sentences under Section 841 were not required under the 1988 version of Section 846, but no mandatory minimum penalty was applied to him in the instant case. . . .

Docket No. 685, government's response to motion to vacate sentence, at pp. 21-22. The court denied defendant's motion in an order adopting this response. Docket No. 694, order denying motion to vacate sentence.

On appeal this court's judgment was again affirmed in an unpublished opinion available at 1996 WL 341157, Mitchell v. United States, 89 F.3d 834, 1996 WL 341157 (6th Cir.1996)(table). The pertinent part of that opinion reads as follows:
On appeal, Mitchell advances one claim only, that is, that his punishment was imposed in violation of ex post facto principles . . . .
Mitchell did not raise his ex post facto claim on direct appeal, even though he could have done so, and does not now advance any justification for this omission. A § 2255 motion will not serve as substitute for a direct appeal . . . . Claims that could have been asserted on direct appeal will not be entertained in a § 2255 proceeding unless the petitioner demonstrates cause for his previous omission and prejudice resulting therefrom. United States v. Frady, 456 U.S. 152, 167-69, 102 S.Ct. 1584, 71 L.Ed.2d 816 (1982). This claim is therefore not properly before the court.
Mitchell fares no better if the claim is examined on the merits. Mitchell was convicted of taking part in a drug distribution conspiracy in violation of 21 U.S.C. § 846. The penalty provision of § 846 in effect at that time provided that Mitchell's punishment reference the appropriate subsection of 21 U.S.C. § 841, § 841(b)(1)(B), provided for a penalty of not less than 5 nor more than 40 years. This provision was added by P.L. 99-570 which took effect November 1, 1987. Mitchell's conspiracy was taking place at the time of this amendment. Walton, 908 F.2d at 1299. An ex post facto violation only occurs when: 1) a law is applied to events that occurred before its enactment, and 2) application of the law disadvantages the defendant to whom it is applied. Miller v. Florida, 482, U.S. 423, 430 (1987). Mitchell does not state a claim for an ex post facto violation. This appeal is utterly meritless.

Docket No. 710, copy of order of Sixth Circuit affirming this court's denial of Mitchell's motion to vacate his sentence, at pp. 2-3.

Undeterred, on February 14, 1997 White and Mitchell jointly filed as No. 97-40029 a "Motion to Vacate or Correct Illegal Sentences Pursuant to Rule 60(b)(a) and (b)(4)" raising the same, confused claim:
The Defendants submits [sic] that since he was sentenced according to Title 21 U.S.C. § 846 . . . the District Court erred in ruling under the law as it existed, at the time relevant to this particular Defendant in this case, minimum mandatory sentences were required for substantive drug trafficking offenses but not for drug conspiracy counts such as those issued here in this particular action.
4. Public Law 98-473, The Sentencing Reform Act of 1984 which took effect November 1, 1987, did not include provisions for Title 21, U.S.C. § 846. Public Law 99-570, the Anti-Drug Abuse Act of 1986, which took effect October, 1986 did not include any provisions for Title 21, 846. [sic]
Congress had failed to include, for whatever reasons, Title 21, U.S.C. § 846. Within those acts; and so, those acts did not apply to the statute. Congress, recognizing this, enacted Public Law 100-690 to put 21:846 under the provision of Public Law 98-473/99-570. On November 18, 1988 (over one year) Title 21, U.S.C. § 846 was exempt from the provision of the aforesaid Public Laws. Since Public Law 91-513 was in effect, expressly for 21:846 until (expressly) revoked by congress that law remained in effect for violation of 21:846 that occurred up until November 18, 1988. Therefore, this Court had no authority to impose a penalty not provided for by Congress at the time of Commission of the crime.
5. The law in effect for a conspiracy conviction under Title 21 U.S.C. § 846 was five (5) years. Since the Defendant was only convicted of being a conspirator and not a substantive offender it was an egregious error to sentence him under the Federal Sentencing Guidelines to a term of imprisonment in excess of that for which he was convicted; i.e., conspiracy.

Docket No. 717, motion by defendants White and Mitchell to vacate sentences, pp. 2-3. This motion was denied by the court in an order filed June 5, 1997 as docket no. 738. Both defendants appealed from this order [docket nos. 741, 742], but the Sixth Circuit dismissed both appeals [docket no. 755].

On October 21, 1997 White and Mitchell filed a "Habeas Corpus Petition Pursuant to Title 28 U.S.C. § 2241." Since they were then incarcerated at FCI-Elkton, Ohio, they filed this petition in the Northern District of Ohio. That court, however, construed the motion as a motion to vacate sentence under 28 U.S.C. § 2255 and, accordingly, transferred it to this court, where it was docketed as No. 97-40483. Docket nos. 768 (White) and 772 (Mitchell). Upon being advised of this action both defendants promptly wrote to the court a letter withdrawing their motions. Docket No. 776. This court honored their request and dismissed the motion. Docket No. 779, dated May 28, 1998.

On January 4, 1999 Mitchell (only) filed in this closed criminal case (No. 88-50066) a "Motion for Modification of Sentence Pursuant to Title 18 U.S.C. § 3583," arguing that although the court had determined that at least 80 kilos of cocaine were distributed by the conspirators, recent changes to the sentencing guidelines mean he "should only be held accountable for, at most, 3-4 pounds of cocaine." Docket No. 780 at 5. The court denied this motion on the merits in an order filed on April 13, 1999. Docket No. 784. Defendant appealed from this order, but his appeal was dismissed by the Sixth Circuit. Docket Nos. 785 (appeal) and 792 (order dismissing appeal).

Subsequent requests to the Sixth Circuit for permission to file a second or successive 2255 motion in this court were denied. Docket Nos. 795 (Mitchell) and 796 (White).
III. ANALYSIS

The Defendants are requesting that the court correct their sentences pursuant to Federal Rule of Criminal Procedure, Rule
[295 F.Supp.2d 719]
35. The government responds that the district court is without jurisdiction to correct or reduce the sentence. I agree.

Defendants were convicted of having conspired to distribute cocaine from June of 1980 until September of 1988. A conspiracy is an ongoing crime, and "once a criminal conspiracy is established, it is presumed to continue until its termination is affirmatively shown." United States v. Portsmouth Paving, Corp., 694 F.2d 312, 318 (4th Cir.1982). The crime in this case ended in September of 1988. Federal Rule of Criminal Procedure 35, as amended took effect on November 1, 1987. The new rule was applicable to offenses committed after November 1, 1987, and is therefore the applicable rule to apply to this case.

The rule in effect prior to amendment provided:
Rule 35. Correction or Reduction of Sentence
(a) Correction of Sentence. The court may correct an illegal sentence at any time and may correct a sentence imposed in an illegal manner within the time provided herein for the reduction of sentence.
(b) Reduction of Sentence. A motion to reduce a sentence may be made, or the court may reduce a sentence without motion, within 120 days after the sentence is imposed or probation is revoked, or within 120 days after receipt by the court of a mandate issued upon affirmance of the judgment or dismissal of the appeal, or within 120 days after entry of any order or judgment of the Supreme Court denying review of, or having the effect of upholding, a judgment of conviction or probation revocation. The court shall determine the motion within a reasonable time. Changing a sentence from a sentence of incarceration to a grant of probation shall constitute a permissible reduction of sentence under this subdivision.

Under the old rule, the district court could correct an illegal sentence at any time, and could correct a sentence imposed in an illegal manner within the time provided for reduction of sentence. A motion to reduce a sentence could be made within 120 days after imposition of sentence, or within 120 days after receipt by the court of a mandate issued upon affirmance of the judgment or dismissal of the appeal or within 120 days after entry of any order or judgment of the Supreme Court denying review of, or having the effect of upholding a judgment of conviction or probation revocation.

The current version of Rule 35 differs substantially from the old version and provides as follows:
Rule 35. Correction or Reduction of Sentence
(a) Correction of a Sentence on Remand. The court shall correct a sentence that is determined on appeal under 18 U.S.C. 3742 to have been imposed in violation of law, to have been imposed as a result of an incorrect application of the sentencing guidelines, or to be unreasonable, upon remand of the case to the court—
(1) for imposition of a sentence in accord with the findings of the court of appeals; or
(2) for further sentencing proceedings if, after such proceedings, the court determines that the original sentence was incorrect.
(b) Reduction of Sentence for Substantial Assistance. If the Government so moves within one year after the sentence is imposed, the court may reduce a sentence to reflect a defendant's subsequent substantial assistance in investigating or prosecuting another person, in accordance with the guidelines and policy statements issued by the Sentencing Commission under 28 U.S.C. § 994. The court may consider a government motion to reduce a sentence made one year or more after the sentence is imposed if the defendant's substantial assistance involves information or evidence not known by the defendant until one year or more after sentence is imposed. In evaluating whether substantial assistance has been rendered, the court may consider the defendant's presentence assistance. In applying this subdivision, the court may reduce the sentence to a level below that established by statute as a minimum sentence.
(c) Correction of Sentence by Sentencing Court.
The court, acting within 7 days after the imposition of sentence, may correct a sentence that was imposed as a result of arithmetical, technical, or other clear error. (As amended Feb. 28, 1966, eff. July 1, 1966; Apr. 30, 1979, eff. Aug. 1, 1979; Apr. 28, 1983, eff. Aug. 1, 1983; Oct. 12, 1984, Pub.L. 98-473, Title II, § 215(b), 98 Stat.2015; Apr. 29, 1985, eff. Aug. 1, 1985; Oct. 27, 1986, Pub.L. 99-570, Title X, § 1009, 100 Stat. 3207-8; Apr. 30, 1991, eff. Dec. 1, 1991; Apr. 24, 1998, eff. Dec. 1, 1998.)

Under the current rule, defendant's sentences can only be corrected or reduced: (1) upon remand from the appeals court; (2) upon motion of the government for providing substantial assistance, or (3) for corrections of arithmetical, technical, or clear errors within seven days after imposition of sentence.

In this case, the appeals court has not remanded the case to the district court for correction of Defendants' sentences; and the government is not moving to reduce the Defendants' sentences for substantial assistance. Furthermore, Defendants have not moved for correction of their sentences within the seven day period established by section (c).

The majority of courts reviewing Rule 35(c) have held that the seven day limitation is a jurisdictional restriction, and the district court has no authority to act outside of that time period. See, United States v. Diaz-Clark, 292 F.3d 1310 (11th Cir.2002); United States v. Lopez, 26 F.3d 512, 518-519 (5th Cir.1994); United States v. Fahm, 13 F.3d 447, 453 (1st Cir.1994); United States v. Austin, 217 F.3d 595, 597 (8th Cir.2000); United States v. Daddino, 5 F.3d 262, 265 (7th Cir.1993); United States v. Hudson, 207 F.3d 852 (6th Cir. 2000).

Furthermore, the district court has no inherent power to modify a term of imprisonment beyond the authority granted by Rule 35 or 28 U.S.C. § 2106 or § 2255. In United States v. Barragan-Mendoza, 174 F.3d 1024, 1028-1029 (9th Cir.1999), the court held that in the absence of an express statute or rule to the contrary, a district court is without jurisdiction to reconsider and ultimately reimpose a modified term of imprisonment. See also United States v. Ross, 245 F.3d 577 (6th Cir.2001); United States v. Galvan-Perez, 291 F.3d 401 (2002).

It is clear in this case that the district court has no authority to correct or reduce the Defendants' sentences. The Defendants' arguments are frivolous.

I would note that the Sixth Circuit has already held in this case that a defendant who commits a continuing offense beginning before the effective date of the guidelines and ending after the effective date of the guidelines, can be sentenced without violating the ex post facto clause of the constitution, and held that it was not error to sentence the Defendants under the guidelines. United States v. Walton, 908 F.2d 1289, 1299 (6th Cir.1990).

Further courts have held that where the guidelines proscribe a sentence greater than the previous norm, the Ex
[295 F.Supp.2d 721]
Post Facto Clause, which bars an increase in the punishment for an offense after it has been committed, is not violated by applying an increased penalty to a conspiracy that continued after the effective date of the increased penalty. See United States v. Baresh, 790 F.2d 392, 404 (5th Cir.1986); United States v. Inafuku, 938 F.2d 972 (9th Cir.1991); United States v. Henson, 848 F.2d 1374, 1383 (6th Cir. 1988); United States v. Pace, 898 F.2d 1218, 1238 (7th Cir.1990).

The Defendants argue, however, that a term of supervised release could not be imposed in this case because supervised release was not a punishment which the court was authorized to impose pursuant to 21 U.S.C. § 846, at the time the conspiracy ended. Defendants overlook 18 U.S.C. § 3583, which provides for terms of supervised release for all felonies and misdemeanors. Section 3583, took effect on November 1, 1987, well before the conspiracy in this case ended and was in effect at the time the Defendants were sentenced. Section 3583 permits the imposition of a term of supervised release notwithstanding, Bifulco v. United States, 447 U.S. 381, 100 S.Ct. 2247, 65 L.Ed.2d 205 (1980), upon which the Defendants so heavily rely. See also Rodriguez v. United States, 951 F.2d 26 (2nd Cir.1991).

Finally, the Defendants argue that the Ex Post Facto Clause does not allow the court to aggregate the drug's weight involved in the early conspiracy years of lower penalties with the drugs involved in the later years of harsh penalties, to compile a total drug weight for the purpose of applying the penalties of the later statutes. Because conspiracy is an ongoing crime which is presumed to continue until it's termination is affirmatively shown, the Ex Post Facto Clause does not bar sentencing consideration of the quantity of drugs during the entire course of the conspiracy. See United States v. Sheffer, 896 F.2d 842 (4th Cir.1990); United States v. David, 940 F.2d 722 (1st Cir.1991).
V. CONCLUSION

For the reasons stated above, I respectfully recommend that the Defendants' Motion to Correct Illegal Sentences be DENIED.

Pursuant to Fed.R.Civ.P. 72(b) and 28 U.S.C. § 636(b)(1), the parties are hereby notified that within ten days after being served with a copy of this recommendation they may serve and file specific, written objections to the proposed findings and recommendations. Further, either party may respond to another party's objections within ten days after being served with a copy thereof. The parties are further informed that failure to timely file objections may constitute a waiver of any further right of appeal to the United States Court of Appeals. United States v. Walters, 638 F.2d 947 (6th Cir.1981).

In accordance with the provisions of Fed.R.Civ.P. 6(b), the court, in its discretion, may enlarge the period of time in which to file objections to this report.
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Justia › U.S. Law › Case Law › Federal Courts › Courts of Appeals › Sixth Circuit › 1994 › Larry Noal White, Petitioner-appellant, v. United States of America, Respondent-appellee
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Larry Noal White, Petitioner-appellant, v. United States of America, Respondent-appellee, 16 F.3d 1223 (6th Cir. 1994)
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U.S. Court of Appeals for the Sixth Circuit - 16 F.3d 1223 (6th Cir. 1994)
Jan. 24, 1994

Before: KEITH and NORRIS, Circuit Judges; and ENGEL, Senior Circuit Judge.

PER CURIAM:

Petitioner Larry White ("White") appeals from the district court's denial of his motion to vacate pursuant to 28 U.S.C. § 2255 without granting discovery or an evidentiary hearing. For the reasons stated below, we AFFIRM the denial and dismissal of White's Sec. 2255 motion to vacate.

In 1989, a jury convicted White and four co-defendants of participating in a conspiracy to distribute a multi-kilogram amount of cocaine in violation of 21 U.S.C. §§ 841 and 846. The indictment alleged an eight year conspiracy which began in 1980 and continued until indictment. In 1990, the five defendants appealed their convictions to this court. In a published decision, this court affirmed White's conviction and sentence. See United States v. Walton, 908 F.2d 1289 (6th Cir.), cert. denied, 498 U.S. 906 (1990). Regarding White, Judge Kennedy stated:

The evidence presented at trial showed that Larry White was the leader of the conspiracy in the Flint, Michigan area. He obtained large quantities of cocaine from suppliers in other parts of the country and arranged for its transportation, dilution, repackaging, and distribution by other members of the conspiracy. The remaining defendants occupied various positions in White's Flint organization.

* * *

* * *

The government conducted a lengthy investigation into the ring's activities prior to bringing the indictment. Wiretaps placed on Larry White's phones and a microphone hidden in his house provided a considerable amount of evidence against most of the defendants. Additionally, several members of the conspiracy testified against the defendants on behalf of the government.... A jury found all of the defendants ... guilty of conspiracy to distribute cocaine.

* * *

* * *

Following the preparation of presentence reports and hearings on the disputed issues, the District Court sentenced the defendants pursuant to the guidelines established by the United States Sentencing Commission.... Larry White was sentenced to 480 months imprisonment, the maximum sentence authorized by statute.

Id. at 1291. Judge Kennedy also discussed particular facts relevant to White's sentencing stating:

Defendant Larry White was originally charged both with conspiring to distribute cocaine (Count I) and operating a continuing criminal enterprise (Count II). At his arraignment on these charges, White signed an "Acknowledgement of Indictment" form. The form correctly stated that he faced a maximum sentence of life imprisonment for operating a continuing criminal enterprise but erroneously stated that the maximum sentence for the conspiracy count was 20 years. The actual maximum was 40 years. 21 U.S.C. §§ 841 and 846. Count II was voluntarily dismissed by the government three days after the jury was selected. After his conviction on Count I, White was sentenced to 480 months imprisonment, the maximum allowed under the statute.

Id. at 1295.

After this Court affirmed White's conviction and sentence, he cooperated with a government investigation of other drug trafficking offenders. Consequently, the prosecutor moved under Fed. R. Crim. P. 35 to reduce White's sentence from 480 to 360 months; the district court ordered a greater reduction to 300 months.

Over the course of these proceedings, White has retained six attorneys. Prior to trial, White was involved in a business relationship with his trial attorney, David Grant. White, Grant, and Marzellus Wilson1 engaged in a business partnership and Grant performed the legal work for this partnership. White alleges Grant knew of an FBI investigation into the sources of funds for the partnership which led to the ultimate denial of financing for a project. White also alleges that Wilson threatened his life and told him that he should employ Grant as his attorney for his criminal prosecution.

In May 1992, White, through attorney C. Frederick Robinson, filed a motion to vacate his sentence pursuant to 28 U.S.C. § 2255. Regarding this motion, Assistant United States Attorney Haviland stated he would not oppose an evidentiary hearing if White filed a sworn affidavit setting forth his Sec. 2255 allegations. The district court conditioned the grant of an evidentiary hearing upon White's filing of a sworn affidavit. After White executed and filed his affidavit, the district court scheduled an evidentiary hearing for September 29, 1992. Sometime before the hearing, White retained current counsel, Barney Whitesman.

Prior to the scheduled hearing, Whitesman entered an appearance for White substituting for prior counsel. The district judge adjourned the evidentiary hearing without date to allow Whitesman's review of the trial transcripts. Once Whitesman became familiar with the issues, the district court allowed him to file an amended motion to vacate. On December 11, 1992, Whitesman filed an amended motion to vacate and a separate motion requesting discovery. The amended Sec. 2255 motion incorporated the original motion verbatim and added other claims of error. The discovery motion sought to depose David Grant, government agents regarding pre-indictment delay, and Citizen's Bank officials who denied financing for the joint venture.

On February 19, 1993, the district court denied both motions and entered a judgment dismissing the action. White appeals from this judgment.

White first alleges the district court abused its discretion by denying his Sec. 2255 motion to vacate without an evidentiary hearing or discovery. White next characterizes the government's answer to his amended Sec. 2255 motion as an untimely Motion for Reconsideration. Lastly, White alleges erroneous advice about the statutory maximum penalty for the offense of conviction deprived him of Due Process.

White first argues discovery and an evidentiary hearing were required to resolve his allegations of the ineffective assistance of his trial counsel, David Grant. In its final order, the district court, relying on the files and records of the case, found that White was not entitled to relief on any of his claims and denied the amended Sec. 2255 motion without a hearing or discovery. The court stated, "the Defendant has had ample opportunity to demonstrate prejudice, and that he has failed to do so." We agree.

We first address the denial of an evidentiary hearing. White claims the district court's denial violated Sec. 2255. Section 2255, in pertinent part, states:

Unless the motion and files and records of the case conclusively show that the prisoner is entitled to no relief, the court shall cause notice thereof to be served upon the United States Attorney, grant a prompt hearing thereon, determine the issues and make findings of fact and conclusions of law with respect thereto.

White argues because an evidentiary hearing had been scheduled and was later adjourned, the denial of the amended Sec. 2255 motion without a hearing constituted an abuse of discretion.

We review a district court's decision not to hold an evidentiary hearing on a Sec. 2255 motion for an abuse of discretion. Kowalak v. United States, 645 F.2d 534, 537 (6th Cir. 1981). An evidentiary hearing need not be conducted on a Sec. 2255 motion to vacate if the files and records of the case conclusively show that petitioner is not entitled to relief. Baker v. United States, 781 F.2d 85, 92 (6th Cir.), cert. denied, 479 U.S. 1017 (1986); Bryan v. United States, 721 F.2d 572, 577 (6th Cir. 1983), cert. denied, 465 U.S. 1038 (1984).

White bases his Sec. 2255 motion on four allegations of ineffective assistance of counsel. White argues Grant: (a) acted under a conflict of interest; (b) failed to file a motion to suppress evidence allegedly seized beyond the scope of the search warrant; (c) failed to move to dismiss the indictment based on pre-indictment delay; and (d) failed to advise him of the statutory maximum sentence. We discuss each allegation of error below.

To establish ineffective assistance of counsel a petitioner must show that (1) counsel's performance was deficient; and (2) counsel's deficient performance prejudiced the defendant so as to render the trial unfair and the result unreliable. Strickland v. Washington, 466 U.S. 668, 687 (1984). Strickland's prejudice prong presents a heavy burden because a defendant first must "overcome the presumption that, under the circumstances, the challenged action 'might be considered sound trial strategy.' " Id. at 689. In addition, a petitioner must show but for errors of counsel, the result of the proceeding would have been different. Lynott v. Story, 929 F.2d 228, 232 (6th Cir. 1991). A reviewing court's scrutiny of counsel's performance is highly deferential. Cobb v. Perini, 832 F.2d 342, 347 (6th Cir. 1987), cert. denied, 486 U.S. 1024 (1988).

a.

First, White presents five examples of Grant's alleged conflict of interest: (1) White, Grant and Marzellus Wilson, another member of the drug conspiracy, were business partners in a condominium and sewage treatment venture; (2) Grant represented the partnership; (3) Grant knew something about an FBI investigation into the partnership's financing and did not disclose this investigation to White; (4) Grant had previously represented Wilson in non-related criminal matters; (5) Wilson told White to let Grant take care of this federal prosecution and also threatened White's life if he did not keep quiet.

The district court found Grant's sworn affidavit rebutted the above allegations. Under oath, Grant stated:

6. I did have various business dealings with Mr. White before I began my representation of him on the criminal charges. These business dealings did not create any conflict of interest. I am unaware of any conflict of interest created by my representation of Mr. White.

7. I was never told, nor did I believe, that I was a target or subject of any criminal investigation involving Mr. White [the FBI financing investigation]. My representation of Mr. White was unaffected by any concern for my own status, as I was and am unaware of any charges that could be brought against me based on my association with him.

8. I have never represented Marzellus Wilson in any law suit, civil or criminal, and am unaware of any conflict of interest created by my representation of Larry White.

In addition, Grant swore that "at no time did Mr. White tell me that he or his family had been threatened by Marzellus Wilson or any other alleged drug dealer."

White did not raise Grant's disputed representation of Wilson below and this argument is not properly before us. See United States v. Polselli, 747 F.2d 356, 357 (6th Cir. 1984), cert. denied, 469 U.S. 1196 (1985). White's awareness of his and Grant's previous business relationship and of the legal work Grant performed for the partnership is undisputed. This relationship, on its face, presents no conflict of interest. In addition, the record reflects Grant was unaware of any conflict of interest. In fact, Grant specifically denied any conflict created by previous business dealings. He similarly denied any knowledge of an FBI investigation. White provides no evidence, beyond mere allegation, of any possible conflict.

White correctly argues prejudice is presumed where a conflict of interest exists. This does not mean, however, any allegation of a conflict entitles the claimant, ipso facto, to an evidentiary hearing. Here, White offered no evidence of any personal knowledge of a conflict. Thus, Grant's affidavit successfully rebuts White's allegations and no evidentiary hearing was necessary.

b.

White's next argument concerns Grant's failure to file a motion to dismiss the indictment based on pre-indictment delay. White argues although the government obtained evidence from wiretaps in 1986 which amounted to "in reality, its entire case," the government then delayed the indictment to gain a "tactical advantage" over him. Such "tactical advantage" was, according to White, bringing him under the United States Sentencing Guidelines which became effective November 1987. The district court found the delay was justified by an ongoing investigation. We agree. See United States v. Sherlock, 962 F.2d 1349, 1355 (9th Cir. 1989), cert. denied, --- U.S. ----, 113 S. Ct. 419 (1992).

In this case, the investigation leading to the indictment continued until the 1988 search of White's residence. The indictment itself alleged a conspiracy which began in 1980 and continued through the return of the indictment. Here, no delay occurred between the offense and the indictment and any motion to dismiss based on pre-indictment delay would have failed.

c.

White argues Grant should have moved to suppress "among other things, photographs" alleging the items were seized illegally because they exceeded the scope of the search warrant and were not found in plain view. White additionally asserts that a photograph of him with Marzellus Wilson unfairly prejudiced his case. Further, White notes that "it is also questionable ... whether the search warrant had been properly signed at the time of its execution."

The district court found the warrant was properly signed and "any items seized beyond the scope of the warrant were arguably found in plain view during the legal search." The record reflects the search warrant was properly signed and we agree that the items appear to have been found in plain view. Thus, no Strickland violation occurred as a motion to suppress was not necessary nor would it have been successful.

Perhaps more importantly, assuming arguendo the unidentified items were improperly allowed, such admission was clearly harmless error. As this court found on direct appeal, White was convicted by a "considerable amount" of evidence to the contrary, most notably the evidence obtained from the wiretaps. It is highly doubtful, and White fails to argue, the outcome in this case would have differed had the photograph or other "things" been suppressed.

d.

Finally, White argues he was given erroneous information about the statutory maximum for the conspiracy offense which amounted to ineffective assistance of counsel. It is undisputed that White initially received erroneous advice from both the government and his attorney about the statutory maximum for his conspiracy charge. The government concedes White signed an erroneous Acknowledgement of Indictment which stated a 20-year maximum sentence for the conspiracy charge which actually carries a 40-year maximum. White argues Grant's misinformation about the statutory maximum led him to reject a plea agreement for 30 years. In this case, however, no Rule 11 plea agreement was offered to White. In addition, at trial White adamantly denied any guilt and showed no inclination toward pleading guilty. The district court correctly found Grant's affidavit rebutted White's allegations and that the trial court specifically corrected any earlier error, on the record, at a pre-trial hearing. We agree.

First, Grant stated in his affidavit:

At some time before trial began government counsel informed me that the maximum sentence on the conspiracy charge was in fact 40 years; that the guideline sentence on the conspiracy charge was greater than the guideline sentence on the CCE charge, and that he would, therefore, be dismissing the CCE charge. I explained all that to Mr. White. We both knew, before trial began, that the maximum sentence on the conspiracy charge was not 20 years, but 40.

The above statement specifically rebuts White's allegation. Additionally, the district court explicitly clarified the true maximum sentence, on the record, at a pre-trial hearing held February 28, 1989. White elected to go to trial after being informed by the court itself of the maximum penalty he was facing. At an evidentiary hearing held February 28, 1989 the following discourse took place:

Assistant United States Attorney Haviland:

It's been drawn to my attention that I believe all of the defendants were misadvised as to the maximum penalty on Count I. All of them are here today with their attorneys. So I would like to take advantage of this fact to advise them formally on the record that the maximum penalty upon conviction for Count I would be 40 years imprisonment, not 20 years imprisonment ... because the charge specifies ... the amounts of cocaine involved were "multi-kilograms" ... now the minimum penalty may not apply since this is a conspiracy charge rather than a substantive offense. But the maximum penalty, I think, clearly does apply ... the government contends that the maximum penalty would be 40 years rather than 20 years.

* * *

* * *

The Court: Any defense counsel who disputes that? All right. Then I want you to take a couple of--Mr. Grant?

Mr. Grant: Yes, your Honor. My only objection is that this was brought to my attention this morning by Mr. Haviland. And I would like to have some opportunity to research that particular--

The Court: Well that's fine. And that's [sic] no question that you are entitled to that. I think at this point, and of course even if you don't dispute it, I'll have to make that determination at the appropriate time if it becomes appropriate to do so.

The question right now becomes whether or not you are able to and ought to communicate to your clients that the risk is that the maximum penalty in Count I .. would be 40 years rather than 20 years. And I'd like you to confer with your clients right now so you can represent to me, each of the lawyers, represent to me that they have conferred and that they understand that is the risk involved in this case in connection with Count I.

All right is there any lawyer whose client has not had it explained to him and who wants to register anything which would indicate that his client is either not here or does not understand? Your silence under these circumstances will be your affirmative representation to me that you have discussed it with your client and that your client understands the risk. All right.... If there is any client who does not understand that the risk on conviction of Count I is 40 years imprisonment, please stand at this time. All right. There is nobody standing.

(Joint Appendix, p. 90-92).

This court recently discussed erroneous advice from counsel and held "even if the attorney gave [the defendant] incorrect information, the judge's advice on the record, as a matter of law, was sufficient to bar [the defendant] from relying on a claim that he pled guilty on a mistaken assumption about the consequences of going to trial." United States v. Todaro, 982 F.2d 1025, 1029 (6th Cir. 1993), cert. denied, --- U.S. ----, 113 S. Ct. 2424 (1993), discussing Baker v. United States, 781 F.2d 85 (6th Cir.), cert. denied, 479 U.S. 1017 (1986).

Here, even if White initially relied upon Grant's incorrect advice, the district court's later clarification of Count I barred any further reliance. Such clarification cured any ineffective assistance under Strickland. In addition, White failed to prove any actual prejudice resulting from the misadvice for three reasons: (1) at the time White plead not guilty, he faced a possible life sentence on a count which was later dismissed; (2) the government did not offer White a plea agreement; and (3) White's original sentence of 480 months was reduced to 300 months. White has not shown how, but for this advice, the outcome of his trial would have differed.

White, however, argues he was prejudiced because he lost an opportunity to plea bargain and fully cooperate with the government from the "get go." He also argues because Grant disagreed with the district judge's interpretation of the statutory maximum and told him so that he continued to rely upon the erroneous maximum. Regardless, the record reflects that White knew before trial he risked a forty-year sentence.

Based on the above analysis, White failed to allege any claim of ineffective assistance of counsel under Strickland. Although the district judge originally scheduled a hearing, it was within his discretion to deny the amended motion without a hearing. Here, the same district judge who heard White's Sec. 2255 motion presided over White's original five week jury trial. The trial judge's familiarity with the issues and the record is uncontroverted. The district court properly dismissed his Sec. 2255 motion to vacate, without holding an evidentiary hearing because the files and records of this case conclusively show that petitioner is not entitled to relief. Baker v. United States, 781 F.2d 85, 92 (6th Cir.), cert. denied, 479 U.S. 1017 (1986).

We next address the denial of discovery. In his discovery motion, White sought to depose "trial counsel and bank officials on the issues of the ineffective assistance and conflict of interest claims" and "Government agents on issues of the pre-arrest delay and investigation of the partnership." White alleges the complexity of the issues involved warranted discovery. The district court correctly found Petitioner only has a right to discovery "where specific allegations before the court show reason to believe that the Petitioner may, if the facts are fully developed, be able to demonstrate that he is ... entitled to relief." Harris v. Nelson, 394 U.S. 286, 300 (1969), reh'g denied, 394 U.S. 1025, see also, Lynott v. Story, 929 F.2d at 232. The district court denied discovery finding none of White's claims were likely to be successful. The above analysis demonstrates the insufficiency of White's claim of ineffective assistance of counsel. Thus, we affirm the district court's denial of discovery because White was not entitled to relief on his claims.

White's second argument characterizes the government's answer to his amended Sec. 2255 motion as an untimely Motion for Reconsideration. According to White, the answer, which requested a denial without a hearing, sought a reconsideration of the previous grant of an evidentiary hearing and it was not filed within ten days of entry of the initial order granting a hearing.

The record reflects White failed to raise this issue below. Thus, the question is not properly before us. In addition, the claim lacks merit. The adjournment of the original hearing and the filing of an amended motion presented a new question of whether, in the mind of the trial judge, an evidentiary hearing was necessary. The district court requested an answer to the amended motion. Here, the government's answer, as the district court found, rebutted White's allegations and removed any need for an evidentiary hearing.

Lastly, White argues the errors in his indictment and acknowledgment of indictment did not give him proper notice of the 40-year maximum for Count I and violated his due process rights.

As discussed above, the district court cured any lack of notice stemming from the erroneous indictment and acknowledgment and White had no basis to rely upon the earlier error. In his affidavit, White swears no one advised him of the error. Grant's affidavit and the pre-trial hearing transcript, however, belies such allegation. Before trial, the district court acknowledged and clarified the error on the record and asked each defendant if they understood. If White did not understand this risk, the district court provided him with the opportunity to stand and assert any confusion about Count I. White sat silent in the face of this opportunity. The transcript shows White knew he faced a possible 40-year maximum. Thus, no due process violation occurred for lack of notice.

We, therefore, conclude the district court properly denied White's motion to vacate without discovery or an evidentiary hearing and we AFFIRM the decision of the Honorable Stewart A. Newblatt to deny and dismiss White's Sec. 2255 motion to vacate.

1

Although Wilson was apparently a key player in the drug conspiracy, he was not named in the indictment. During White's trial he was a federal fugitive from a parole violation warrant
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908 F. 2d 1289 - United States v. Walton
HomeFederal Reporter, Second Series 908 F.2d.
908 F.2d 1289

30 Fed. R. Evid. Serv. 918

UNITED STATES of America, Plaintiff-Appellee,
v.
Loretta WALTON (89-1862), Charles Eddie Mitchell (89-1864),
Eddie Lee Johnson (89-1882), Larry Noal White
(89-1883), Rosemary Johnson (89-1884),
Defendants-Appellants.

Nos. 89-1862, 89-1864, 89-1882, 89-1883 and 89-1884.

United States Court of Appeals,
Sixth Circuit.

Argued April 30, 1990.
Decided July 18, 1990.

Robert Haviland, Asst. U.S. Atty., Flint, Mich., for plaintiff-appellee.

Richard P. King, Flint, Mich., for Loretta Walton.

Paul D. Muller, Southfield, Mich., for Charles Eddie Mitchell.

Daniel D. Bremer, Flint, Mich., for Eddie Lee Johnson.

Jeffery C. Duffey, Susan G. James, Montgomery, Ala., for Larry Noal White.

Richard J. Amberg, Pontiac, Mich., for Rosemary Johnson.

Before KENNEDY and WELLFORD, Circuit Judges, and ENGEL, Senior Circuit Judge.

KENNEDY, Circuit Judge.



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1
In these five consolidated appeals, defendants Loretta Walton, Charles Eddie Mitchell, Eddie Lee Johnson, Larry Noal White, and Rosemary Johnson seek relief from their convictions and sentences imposed on jury verdicts finding each guilty of conspiring to distribute cocaine in violation of 21 U.S.C. Secs. 841 and 846. For the reasons stated below, we: (1) AFFIRM the convictions and sentences of defendants Walton, Mitchell, and White, (2) AFFIRM the convictions of defendants Eddie and Rosemary Johnson, but (3) REVERSE the sentences of defendants Eddie and Rosemary Johnson and REMAND their cases for resentencing.

I. Background

2
Because most of the complex facts in this case are unnecessary to the resolution of the case, only an abbreviated version will be recited here. Additional facts will be stated when needed for the resolution of the issues discussed. The defendants were convicted of participating in a conspiracy to distribute cocaine in Flint, Michigan, and Columbus, Ohio. The indictment alleged that the conspiracy began in 1980 and continued through the time of the indictment in 1988. The evidence presented at trial showed that Larry White was the leader of the conspiracy in the Flint, Michigan, area. He obtained large quantities of cocaine from suppliers in other parts of the country and arranged for its transportation, dilution, repackaging, and distribution by other members of the conspiracy.

3
The remaining defendants occupied various positions in White's Flint organization. Loretta Walton was one of White's chief lieutenants and was involved in all aspects of the conspiracy, including the pickup and delivery of cocaine, the pickup and delivery of money, the preparation and repackaging of cocaine for retail sales, and the sales themselves. Charles Mitchell was a Flint police officer during the conspiracy. He transported cocaine for the ring and provided protection for its activities, many times while in uniform. The Johnsons apparently were not as deeply involved in the conspiracy as were White, Walton, and Mitchell. They obtained small quantities of cocaine from other members of the conspiracy, diluted it, repackaged it into small lots, and sold it directly to users of cocaine.

4
The government conducted a lengthy investigation into the ring's activities prior to bringing the indictment. Wiretaps placed on Larry White's phones and a microphone hidden in his house provided a considerable amount of evidence against most of the defendants. Additionally, several members of the conspiracy testified against the defendants on behalf of the government, including Rolando Hernandez, a Miami-based supplier of cocaine for the conspiracy, and Russell Brown, who transported and repackaged cocaine for the conspiracy.

5
A jury found all of the defendants whose cases are on appeal here guilty of conspiracy to distribute cocaine. Following the preparation of presentence reports and hearings on the disputed issues, the District Court sentenced the defendants pursuant to the guidelines established by the United States Sentencing Commission. Loretta Walton and Charles Mitchell were each sentenced to 292 months imprisonment. Eddie and Rosemary Johnson were each sentenced to 41 months imprisonment. Larry White was sentenced to 480 months imprisonment, the maximum sentence authorized by statute.

6
II. Witness Brown's Reference to a Polygraph Test

7
Defendants Walton, Mitchell, and White challenge a passing reference by Russell Brown, a government witness, to a polygraph examination. The reference occurred during Brown's direct examination by the Assistant United States Attorney:



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8
Q All right. Did you tell the DEA agent Dodson something about the cocaine business in Flint?

9
A Yes.

10
Q Why did you do that?

11
A Well I thought it would help with my case.

12
Q The uttering and publishing charge was pending against you then?

13
A Right.

14
Q Okay. And you spoke with the DEA agent Dodson at that time?

15
A Right.

16
Q As a result of your conversation with Agent Dodson, were you called to a Grand Jury?

17
A No. I had to take a polygraph before that.

18
Following Brown's mention of the polygraph, defense counsel asked for and received a sidebar conference and moved for a mistrial. The court denied the motion but agreed to accept briefs on the subject. Following the sidebar conference, the government, in an attempt to minimize any possible prejudice from the witness' answer, asked the court to strike the witness' answer as nonresponsive and to instruct the jury to disregard it. The court advised the jury that the answer was not responsive to the question asked by the prosecutor, ordered the response stricken, and advised the jury to disregard it. No other reference to this or any other polygraph examination was made at any time during the five-week trial.

19
The following day, the court heard argument on the motion for a mistrial. Brown was examined outside of the jury's hearing. He testified that the polygraph examination he took was actually requested and administered by county prosecutors, not by any federal agent or prosecutor. He also stated that he never mentioned the polygraph examination to any federal agent or Assistant United States Attorney involved in the case and had no way of knowing whether the Assistant United States Attorney prosecuting the case knew he had taken a polygraph examination. The court again denied the motion for a mistrial and found that the government had not intended the reference to the polygraph. Although noting that the prosecutor had stated that the witness' unresponsive statement might have been deliberate, the court found that there was no evidence that Brown had made the statement in a deliberate attempt to prejudice the defense. At this hearing, the government also offered to stipulate that no agent of the United States had requested that a polygraph test be given to Brown and no agent of the United States had been informed of the results of any polygraph test Brown may have taken. Defense counsel declined to have the stipulation read to the jury.

20
Brown's testimony concerned, among other things: (1) a shipment of frozen fish containing hidden packages of cocaine that he transported for White, (2) his work for White breaking down several one kilogram shipments of cocaine into one ounce packages for resale, (3) his knowledge that Mitchell, then a police officer for the city of Flint, delivered cocaine for White, and (4) his observation that Walton often made cocaine pickups with White. Brown, who was in prison on other charges at the time of his testimony, admitted that he only agreed to testify in hope of receiving leniency in a state prosecution and a $2,000 payment by the federal government. Thus the credibility of his testimony was disputed.

21
Other witnesses and evidence also linked Walton, Mitchell, and White to the conspiracy. For example, Rolando Hernandez, who supplied White with bulk quantities of cocaine, testified to his supply activities and to Walton's actions as a courier for and confidante of White. Dennis Barker, who like Brown was only involved intermittently in White's operations, provided additional evidence against Mitchell. He testified that he had seen Mitchell, often in uniform, receiving large lots of cocaine from White for delivery. Phone wiretaps and a microphone located in White's house provided strong evidence against White and Walton and at least some additional evidence against Mitchell.

22
The defendants argue that any mention of a polygraph examination by a government witness should result in a mistrial, at least where that witness' testimony is important to the government's case. The defendants also argue that because Brown is a convicted felon we should presume he is sophisticated in matters of criminal procedure and intentionally referred to the polygraph in order to bolster his credibility. The District Court refused to find that the government had any advance knowledge that Brown would mention the polygraph test. Although the court acknowledged the possibility that Brown may have made the reference intentionally, it concluded there was no evidence to support this proposition and refused to create a presumption in favor of the defendants.

23
Had the District Court found that the government intended Brown to introduce the information concerning the polygraph examination, the reference might lead to reversal under circuit precedent. In United States v. Murray, 784 F.2d 188 (6th Cir.1986), for example, we held that a defendant's conviction must be reversed where an experienced FBI agent stated that he had asked the defendant to take a polygraph examination. That case is distinguishable for two reasons, however. First, the majority believed that the statement was deliberately made by an experienced government agent. Id. Regardless of Brown's motive, there is no suggestion of government misconduct in the case before us. Second, though it was not explicitly mentioned by the Murray Court, a statement suggesting that a criminal defendant either took and failed a polygraph examination or refused to take an examination directly relates to guilt and implicates a defendant's fifth amendment right not to incriminate himself. Here, the statement did not go to whether one of the defendants had taken or refused to take a polygraph test. Rather, it relates only to the credibility of a witness.

24
The mere fact that Brown was a convicted felon does not lead us to presume that he both knew his reference to his polygraph test to be inadmissible and made the statement with bad motive. Further, even were we to accept the proposition that Brown intended to prejudice the jury, a mistrial would not necessarily be required. Where the witness is not a government official, the question is not whether the witness intended to prejudice the jury or bolster his credibility but whether the reference was harmless.

25
On the facts before us, Brown's passing reference to having taken a polygraph examination appears to have been harmless. Although references to polygraph testing must be treated with great care by a trial court, we have not mandated that all references to polygraph testing require a mistrial. See United States v. Betancourt, 838 F.2d 168, 175 (6th Cir.), cert. denied, 486 U.S. 1013, 108 S.Ct. 1748, 100 L.Ed.2d 210 (1988) (admission of information concerning a government witness' polygraph exam at the request of four defendants did not prejudice trial of fifth defendant who objected to the admission of this evidence). Even the circuits which have held that polygraph evidence is generally inadmissible have allowed an inadvertent statement concerning the evidence to be remedied by a curative instruction. See United States v. Tedder, 801 F.2d 1437, 1444-45 (4th Cir.1986), cert. denied, 480 U.S. 938, 107 S.Ct. 1585, 94 L.Ed.2d 775 (1987); United States v. Holman, 680 F.2d 1340, 1352 (11th Cir.1982); United States v. Martino, 648 F.2d 367, 390 (5th Cir.1981), cert. denied, 456 U.S. 943, 102 S.Ct. 2006, 72 L.Ed.2d 465 (1982); see also United States v. Dietrich, 854 F.2d 1056, 1058-60 (7th Cir.1988). The standard for when such a curative instruction is effective has been stated in various ways: whether the statement "is so prejudicial as to be incurable," Holman, 680 F.2d at 1352; whether the statement "measurably [affected] the jury's verdicts," Martino, 648 F.2d at 390; or, a two factor test " '(1) whether an inference about the result of the test may be critical in assessing the witness's credibility, and (2) whether the witness's credibility is vital to the case,' " Tedder, 801 F.2d at 1444 (quoting United States v. Brevard, 739 F.2d 180, 182 (4th Cir.1984)).

26
The defendants assert that Murray stands for the proposition that any admission of polygraph evidence must be harmless beyond a reasonable doubt in order to avoid a mistrial. We do not believe that Murray is so broad. Murray applies this standard, the standard for errors of constitutional magnitude, in a case where the polygraph reference is to a defendant failing or refusing to take a polygraph, a violation that implicates rights of a constitutional magnitude. Where such a polygraph reference is not to a defendant, we believe an instruction or an offer to make such an instruction to disregard the reference is sufficient if it meets the nonconstitutional error test adopted by the Fourth Circuit. Compare Chapman v. California, 386 U.S. 18, 24, 87 S.Ct. 824, 828, 17 L.Ed.2d 705 (1967) (constitutional errors must be "harmless beyond a reasonable doubt") with Opper v. United States, 348 U.S. 84, 95, 75 S.Ct. 158, 165, 99 L.Ed. 101 (1954) ("Our theory of trial relies upon the ability of a jury to follow instructions").

27
As did the Fourth Circuit in Tedder, we conclude that the curative instruction in this case was sufficient to cure any harm that may have occurred as a result of the passing reference to a polygraph examination. As to the first element of the test,

28
the jury heard no evidence as to the results of the test, and while it may have assumed that the test buttressed [Brown's] credibility, it also observed him during lengthy direct examination and cross-examination. Thus, even if some jurors drew an inference about the results of the test, there is no special reason in this case to believe that the inference was any more critical in assessing the witness's credibility than it was in cases in which a curative instruction was found to be sufficient.

29
Tedder, 801 F.2d at 1445.

30
As to the second element, there was an abundance of other evidence against White and Walton. There was also sufficient evidence against Mitchell. Although the defendants argue that the jury could have inferred that other witnesses took and passed polygraphs, we "decline to impute to the jury so tenuous a chain of inferences." Id.

III. The Johnsons' Motions for Acquittal

31
At the close of the government's case-in-chief and the close of evidence, both Eddie and Rosemary Johnson moved for judgments of acquittal on the grounds that the evidence introduced was insufficient. The motions were denied. The defendants renew this argument on appeal. At the outset, we note that the defendants have a difficult burden to meet. When reviewing a denial of a motion to dismiss, we must consider all the evidence in a light most favorable to the government and then determine whether there is any evidence from which a reasonable jury could find guilt beyond a reasonable doubt. See, e.g., United States v. Adamo, 742 F.2d 927, 932 (6th Cir.1984), cert. denied, 469 U.S. 1193, 105 S.Ct. 971, 83 L.Ed.2d 975 (1985). Judged under this standard, we believe the convictions must stand.

32
The primary evidence against the Johnsons was several tape recordings of phone conversations in which the Johnsons discussed cocaine sales. These conversations were between the Johnsons and various persons at Larry White's home. For example, the Johnsons discussed the cutting and sale of cocaine obtained from "Loretta," apparently Loretta Walton, a defendant in this case. A jury could reasonably conclude that the Johnsons sold cocaine they obtained from defendant Walton who they knew distributed cocaine for White. Although the defendants argue that, at most, the evidence demonstrates their participation in a conspiracy separate from the one which White led, we believe that a reasonable jury could conclude otherwise. See Exhibit 2 (4/26/86: Lynn Grant, Rosemary Johnson's sister, and Rosemary Johnson discussing complaints about the quality of cocaine the Johnsons had obtained from "Loretta" [Loretta Walton, one of Larry White's chief confidantes] and sold to other persons); Exhibits 50, 51, and 52 (three 8/19/86 conversations: Lynn Grant begging the Johnsons for $800 or cocaine so that she could repay "Larry" [White] for cocaine or cocaine money of White's that she had used; the Johnsons refusing in the belief that if they helped her and White found out then White would refuse to continue doing business with them; Eddie Johnson mentioning that he wanted to help but still owed money to Larry himself.)

33
IV. White's Claim of Prejudice Concerning Erroneous Advice

34
as to Maximum Sentence

35
Defendant Larry White was originally charged both with conspiring to distribute cocaine (Count I) and operating a continuing criminal enterprise (Count II). At his arraignment on these charges, White signed an "Acknowledgement of Indictment" form. The form correctly stated that he faced a maximum sentence of life imprisonment for operating a continuing criminal enterprise but erroneously stated that the maximum sentence for the conspiracy count was 20 years. The actual maximum sentence was 40 years. 21 U.S.C. Secs. 841 and 846. Count II was voluntarily dismissed by the government three days after the jury was selected. After his conviction on Count I, White was sentenced to 480 months imprisonment, the maximum allowed under the statute.

36
White, citing United States v. Fuller, 769 F.2d 1095 (5th Cir.1985), argues that the erroneous information denied him the opportunity to knowingly and intelligently plead guilty to the conspiracy count of the indictment. He asserts that he would have given more serious consideration to a guilty plea had he known that he could be sentenced to 40 years if convicted of conspiracy. Fuller involved a post-conviction action by Fuller seeking to set aside his guilty plea and sentence on the basis that the court overstated the maximum possible sentence. Fuller argued that he pled guilty because he erroneously believed he was subject to a longer sentence. The court accepted the general theory that an attack could be made on these grounds but, after examining all of the facts that confronted the defendant, determined that he had not pled guilty as a result of the misinformation. Id. at 1098-99.

37
Initially, we note that this case is very different from Fuller. Here, the defendant wishes to challenge his decision not to plead guilty. Under the Federal Sentencing Guidelines, it is more difficult to understand how the defendant was harmed by his decision not to plead guilty. We need not decide whether such a challenge is available, however, since the issue was not raised below. Without any record from which we can determine whether the defendant knew the penalty he was facing in spite of the erroneous information, whether the erroneous information affected his decision not to plead guilty, and whether his decision not to plead guilty caused him cognizable harm, we cannot evaluate the claim. As with other claims that involve issues outside the scope of the record, these claims can be attacked, if at all, only in a collateral proceeding. See, e.g., United States v. Swidan, 888 F.2d 1076, 1081 (6th Cir.1989) (ineffective assistance claims cannot be raised for the first time on direct appeal since the trial record is normally insufficient to evaluate counsel performance).

38
V. The Trial Court's Ex Parte Communication with a Juror

39
During recross-examination of defendant White concerning his financial dealings with his sister Barbara Veasley (a defense witness who had already testified), the trial judge called a sidebar conference and made the following statement:

40
This morning a juror told me or asked me to point--asked to see me and I saw him. He wanted to point out to me that Mrs. Veasley was in the audience and signaling answers to Mr. White. I asked this morning to have Ms. Schnay sit in the courtroom during this morning's session before the break and observe and I observed.

41
During the course of the playing of tapes during the examination, there was no signalling. There is clear nodding and shaking of the head that I have observed in the last five minutes. Now you figure out how you want to communicate with her that she has moved from the right side of the courtroom which she was ... out of the line of vision of Mr. White to the left side of the courtroom which is directly in the line of vision of you, Mr. Grant. I will determine at some later time whether I will do anything further about this. But I would suggest that you have somebody in the courtroom in the audience that you can communicate to that can go be seated beside her. Either that or I'll order her removed from the courtroom.

42
When one of the attorneys requested that the court ask the juror if he had communicated his observations to the other jurors, the trial judge responded that he had already asked and that the juror had not. The trial judge also explained that he advised the juror not to reveal his observation to the other jurors during the trial but indicated that the juror may well choose to do so during deliberations since it was the juror's function to make observations that went to the credibility of a witness.

43
In spite of the fact that the issue was not raised below, Defendant White claims that the District Court on its own motion should have held a full hearing on the record to determine whether the incident biased the juror and, if so, whether he was entitled to a new trial. White urges, citing cases such as Remmer v. United States, 347 U.S. 227, 74 S.Ct. 450, 98 L.Ed. 654 (1954), that we should presume in the absence of a hearing that the judge's conduct biased the juror and thus violated his sixth amendment right to an impartial jury.

44
In Remmer an unknown person suggested to a juror that he could make some money by bringing in a verdict for the defendant. The trial court discussed the matter with the prosecution and as a result an FBI investigation was conducted. The investigation suggested the remark was a joke, but neither the incident nor the report were ever revealed to the defense during trial. The Supreme Court determined that, under the circumstances, the contact was presumptively prejudicial. Although the Court did not believe that the presumption was irrebuttable, it believed such a rebuttal could only be made after notice to the parties and a hearing on the record. Id. at 228-29, 74 S.Ct. at 450-51.

45
In Rushen v. Spain, 464 U.S. 114, 104 S.Ct. 453, 78 L.Ed.2d 267 (1983), the Court again determined that contacts with a juror are subject to harmless error analysis. Id. at 118-19, 104 S.Ct. at 455-56. In Rushen, the Court determined that any constitutional error that may have occurred in the murder trial of a Black Panther was harmless. A juror had contacted the trial judge in the middle of trial to inform him that the trial had triggered a childhood memory of a friend who was murdered by a Black Panther. Although the juror told the judge that the matter upset her, she assured him that she could continue to hear the case without prejudice. The judge did not inform the parties of the contact during the trial. Id. at 115-16, 104 S.Ct. at 454. On a collateral motion for a new trial, the trial judge determined after a hearing that the contact did not prejudice the defendant's right to a fair trial. The defendant then brought a habeas corpus petition in the federal courts. On review of a lower court's decision to grant the petition, the Supreme Court reversed, affirming his conviction. Id. at 119, 104 S.Ct. at 456.

46
The Court did not hold that a hearing must always be held when any contact between a juror and a judge occurs. That issue was not before it. The Court did make several observations that aid in the resolution of this case:

47
There is scarcely a lengthy trial in which one or more jurors do not have occasion to speak to the trial judge about something, whether it relates to a matter of personal comfort or to some aspect of the trial. The lower federal courts' conclusion that an unrecorded ex parte communication between trial judge and juror can never be harmless error ignores these day-to-day realities of courtroom life and undermines society's interest in the administration of criminal justice.

48
This is not to say that ex parte communications between judge and juror are never of serious concern or that a federal court on habeas may never overturn a conviction for prejudice resulting from such communications. When an ex parte communication relates to some aspect of the trial, the trial judge generally should disclose the communication to counsel for all parties. The prejudicial effect of a failure to do so, however, can normally be determined by a post-trial hearing.

49
Id. at 118-19, 104 S.Ct. at 455-56 (footnotes omitted).

50
In this case the trial judge complied with the Supreme Court's mandate. He informed counsel of the contact and the nature of the limited information the juror gave him. Although there was some concern expressed that the juror might be unfairly biased against defendants other than White, there was never a formal request by any of the attorneys for an evidentiary hearing and findings of fact. Having failed to ask for these findings or seek any other relief in the District Court, defendant White now seeks relief for the first time on appeal.

51
Because of the extremely limited nature of the contact, we do not believe that the District Court was required to hold a hearing on its own motion. Thus, in order to prevail, White must demonstrate from facts in the record that actual prejudice occurred. From the information that is in the record, we conclude that there has been no showing of actual juror bias as is required in order to overturn the verdict. United States v. Pennell, 737 F.2d 521, 532 (6th Cir.1984), cert. denied, 469 U.S. 1158, 105 S.Ct. 906, 83 L.Ed.2d 921 (1985). A juror is not only entitled to make observations in the courtroom during trial that go to the credibility of a witness, a juror should be encouraged to do so. The juror's only contact with the judge was a brief conversation in which the juror reported his observations. The judge's only response to the juror was to ask if he had reported the contact to other jurors. After learning that he had not, the judge instructed the juror not to do so for the remainder of the trial. There was no attempt by the judge to influence the juror; there was no indication in the juror's remarks to the judge that the incident unduly prejudiced the defendant.

52
VI. The Prosecution's Use of Peremptory Challenges

53
Relying on Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986), defendant White alleges that the prosecution used its peremptory challenges to strike potential black jurors from the venire on the basis of their race. In order to establish a prima facie case of such discrimination, a defendant must show that he is a member of a cognizable racial group, that the prosecution struck members of the defendant's group from the venire, and that these and "any other relevant circumstances raise an inference that the prosecutor used [peremptory challenges] to exclude the veniremen from the petit jury on account of their race." Id. at 96, 106 S.Ct. at 1723. Once the defendant is able to establish a prima facie case, the burden shifts to the prosecution to come forward with a neutral explanation for challenging the jurors of the defendant's group. Id. at 96-97, 106 S.Ct. at 1723-24.

54
All of the defendants in this case are black. The venire was composed of 56 members, 9 of whom were black. Questioning of the members was done by the court. No other information from which a court could discern possible prosecution bias was submitted. Thus the defendants must establish a prima facie case solely by reference to the strikes actually made by the prosecution. The Assistant United States Attorney was given 15 peremptory strikes, the defendants 30 in total divided among them. The third, fifth, thirteenth, and fifteenth strikes exercised by the prosecution resulted in the removal of potential jurors who were black. The prosecution did not exercise its right to strike a potential juror with its ninth and tenth strikes. The pool remaining at the close of jury selection consisted of 15 persons, three of whom were black. The Assistant United States Attorney explained that all of the black jurors it had struck, except one, as well as a number of the white jurors, were struck because they were in a household where no adult was employed--either because the potential juror was (1) single and unemployed, or (2) unemployed and married to someone who was unemployed.1 The prosecutor explained that he struck the final black juror because he had prosecuted her brother in federal court and because her brother-in-law was employed by the Flint Police Department. One of the defendants as well as several of the witnesses were police officers working in Flint.

55
Twelve of the fifteen members of the pool remaining after all strikes were exercised, including all of the three black members, were designated as jurors. The remaining three were designated alternates. Because one of the black jurors did not show up for trial, a white alternate took his place.2 After the submission of briefs, the District Court overruled defense motions to discharge the jury and the trial proceeded.

56
Reviewing all the facts before us, we cannot say that the defendants established a prima facie case of discrimination by the prosecution. White admits that the juror whose brother the Assistant United States Attorney had prosecuted was struck for cause. The mere fact that the government used three of its remaining fourteen strikes, 21%, to remove black jurors does not raise an inference of discrimination on the facts before us. The pool of 56 jurors was composed of almost 15% black members. Had the government used one less strike against a black member of the pool, it would have only exercised just over 14% of its strikes against black members. Where a change in one strike would result in an outcome that on its face is not prejudicial then it is rare that a defendant can prevail on a claim of discrimination absent additional evidence of discriminatory motive. Further, it is noteworthy that the government had two unused peremptory strikes, yet failed to use them to strike any of the three remaining black jurors from the panel. Had the government been intent on obtaining a non-black jury it is unlikely that these strikes would have gone unused. This is particularly true where the final composition of the pool of 15 had a higher percentage of black members than did the initial pool of 56: 20% black for the pool of 15 versus 15% black for the initial pool of 56. See United States v. Sangineto-Miranda, 859 F.2d 1501, 1520-22 (6th Cir.1988) (setting forth similar factors as useful in determining whether discrimination occurred). Because we find that defendant White has not made a prima facie showing of discrimination, we need not decide whether the prosecution's proffered explanation for striking the remaining black jurors was credible and nondiscriminatory.

57
VII. Admission Of Drug Paraphernalia Found in the Johnsons' Home

58
Rosemary Johnson continues to assert on appeal, as she did in the court below, that evidence seized from the basement of the Johnsons' home at the time of their arrest on October 18, 1988 should not have been admitted at trial. The evidence, seized after a written consent search, consisted of a large triple-beam balance scale with cocaine residue on the pan, a sifter with cocaine residue, a bottle of mannitol (a cocaine dilutant), a bottle of procaine (a cocaine adulterant), and a large number of small plastic bags suitable for packaging cocaine for resale in small lots.

59
Rosemary Johnson argues that this evidence should not have been admitted because it does not tend to establish her involvement in the conspiracy as of the last date the conspiracy is alleged to have continued, September 30, 1988 (the date the indictment was returned). She asserts that the evidence tends to establish that she was transacting cocaine at the time of her arrest but does not support the proposition that she was engaged in transactions with the other conspirators at that time. As such, the evidence is highly prejudicial, she claims, and admitting it violates Federal Rule of Evidence 404(b) (evidence of other crimes) and/or Rule 403 (more prejudicial than probative).

60
The government argued at trial and on appeal a different purpose for the evidence. It asserts that since the tape recorded conversations linked the Johnsons to the conspiracy and since the evidence does tend to establish that the Johnsons were continuing to distribute cocaine at the time of their arrest, the jury could infer they continued to be a part of the conspiracy at the time of their arrest.

61
Since the evidence was admitted to prove continued involvement in the conspiracy, rather than other similar crimes, we believe that the court correctly determined that Rule 404(b) was inapplicable. Thus Rosemary Johnson's citation to United States v. Zelinka, 862 F.2d 92, 99 (6th Cir.1988), is inapposite. In Zelinka, the government conceded that the conspiracy had ended almost a year and a half prior to the defendant's arrest. Id. at 98. Thus the evidence seized during the arrest could not have been evidence of the conspiracy in which the defendant was charged with participating. Since it was admitted that the evidence did not tend to establish an element of the conspiracy, the evidence had to be admissible, if at all, as evidence of another crime under Rule 404(b).

62
In this case, by contrast, the conspiracy continued at least until the return of the indictment, three weeks before the defendant's arrest. Although the defense disputed Johnson's continued involvement in the conspiracy in 1988, the fact of whether the defendant had actually withdrawn was a jury question. United States v. Hamilton, 689 F.2d 1262, 1268-69 (6th Cir.1982), cert. denied, 459 U.S. 1117, 103 S.Ct. 753, 74 L.Ed.2d 971 (1983).

63
The admissibility of the evidence under Rule 403, which allows evidence to be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, is a separate question. Although a strong argument can be made for excluding the evidence given the fact that there was no other evidence of continued involvement in the conspiracy after 1986, on balance, we cannot say that the trial court erred in admitting it.

64
VIII. Ex Post Facto Challenge to the Applicability of the Guidelines

65
All of the defendants except Walton argue that since the conspiracy began before the effective date of the federal sentencing guidelines, November 1, 1987, then sentencing under the guidelines violates the ex post facto clause of the Constitution. In the alternative, Eddie Johnson and Mitchell argue that the government must affirmatively establish that they performed some act in furtherance of the conspiracy after the applicable guideline date in order to sentence them under the guidelines. We reject both of these arguments.

66
We agree with the overwhelming weight of authority holding that a defendant who commits a continuing offense beginning before the effective date of the guidelines and ending after the effective date of the guidelines can be sentenced under the guidelines without violating the ex post facto clause of the Constitution. See, e.g., United States v. Lee, 886 F.2d 998, 1003 (8th Cir.1989), cert. denied, --- U.S. ----, 110 S.Ct. 748, 107 L.Ed.2d 765 (1990); United States v. Boyd, 885 F.2d 246, 248 (5th Cir.1989); United States v. White, 869 F.2d 822, 826 (5th Cir.), cert. denied, --- U.S. ----, 109 S.Ct. 3172, 104 L.Ed.2d 1033 (1989). It is undisputed that the conspiracy at issue in this case continued long after the November 1, 1987 effective date for the guidelines.

67
As to Johnson and Mitchell, we do not believe that the government must prove that they committed an act in furtherance of the conspiracy or knew of acts committed by other co-conspirators after the effective date in order to be sentenced under the guidelines. Conspirators are generally held liable for the known or foreseeable acts of their co-conspirators committed in furtherance of the conspiracy. Pinkerton v. United States, 328 U.S. 640, 647, 66 S.Ct. 1180, 1184, 90 L.Ed. 1489 (1946). Even if these defendants did not participate in the conspiracy after the effective date of the guidelines, the size of the drug distribution conspiracy in this case made it foreseeable that the conspiracy would continue after the effective date. In order to escape liability for the acts committed after the effective date of the guidelines, the defendants must prove that they affirmatively withdrew from the conspiracy before the effective date. See Hamilton, 689 F.2d at 1268-69. The defendants presented no evidence tending to show that they withdrew. Having not met this burden, it was not error for the District Court to sentence the defendants under the guidelines. Lee, 886 F.2d at 1003.

IX. Due Process Challenges to the Guidelines

68
Larry White claims that his sentence under the guidelines violates due process because it requires courts to make findings based on a preponderance of the evidence rather than beyond a reasonable doubt. We have already rejected due process challenges to the guidelines by defendants who have alleged that a judge must have greater sentencing discretion. United States v. Allen, 873 F.2d 963 (6th Cir.1989). The defendant's claim here fares no better. The Supreme Court has specifically "rejected the claim that whenever a State links the 'severity of punishment' to 'the presence or absence of an identified fact' the State must prove that fact beyond a reasonable doubt." McMillan v. Pennsylvania, 477 U.S. 79, 84, 106 S.Ct. 2411, 2415, 91 L.Ed.2d 67 (1986) (quoting Patterson v. New York, 432 U.S. 197, 214, 97 S.Ct. 2319, 2329, 53 L.Ed.2d 281 (1977)). It is sufficient that the fact be proved only by a preponderance of the evidence. Id. 477 U.S. at 91-92, 106 S.Ct. at 2418-19; see also United States v. Moreno, 899 F.2d 465 (6th Cir.1990). We see no reason to treat a challenge to the federal sentencing guidelines any differently from a challenge to a state procedure. Accord, United States v. Wilson, 900 F.2d 1350 (9th Cir.1990); United States v. Fredericks, 897 F.2d 490 (10th Cir.1990); United States v. McDowell, 888 F.2d 285, 290-91 (3d Cir.1989); United States v. Guerra, 888 F.2d 247, 250-51 (2d Cir.1989), cert. denied, --- U.S. ----, 110 S.Ct. 1833, 108 L.Ed.2d 961 (1990); United States v. Urrego-Linares, 879 F.2d 1234, 1237-38 (4th Cir.), cert. denied, --- U.S. ----, 110 S.Ct. 346, 107 L.Ed.2d 334 (1989); United States v. Wright, 873 F.2d 437, 441 (1st Cir.1989). Contra, United States v. Davis, 715 F.Supp. 1473 (C.D.Cal.1989).

69
X. Eighth Amendment Challenge to the Sentence

70
Defendant White also argues that his 40 year sentence is not proportionate to the crime he committed and therefore violates the eighth amendment. The defendant, who directed a major cocaine distribution ring, received the maximum statutory sentence. We have upheld against eighth amendment challenge sentences in drug cases far in excess of that which White received for defendants who engaged in far less serious conduct. See, e.g., Young v. Miller, 883 F.2d 1276, 1282-86 (6th Cir.1989) (first time offender convicted of one time possession with intent to deliver 1,300 grams of heroin sentenced to life in prison without parole). We do not find White's sentence to be unusual in today's climate of drug intolerance.

71
XI. Determination of the Quantity of Cocaine Involved for

72
Purposes of Sentencing under the Guidelines

73
Defendants Walton, Eddie Johnson, and Rosemary Johnson argue that the District Court incorrectly determined the amount of cocaine they distributed.3 They face a difficult burden. A district court's decision on the amount of cocaine a defendant is to be held accountable for is a finding of fact which must be accepted by a court of appeals unless clearly erroneous. See, e.g., United States v. Barrett, 890 F.2d 855, 867 (6th Cir.1989).

74
It is more difficult to determine the actual amount of cocaine each individual defendant in the conspiracy knew or had reason to know would be handled during the conspiracy, where, as here, there was no cocaine actually seized. The Application Notes to U.S.S.G. Sec. 2D1.4, the relevant section for sentencing these defendants, recognize this problem:

75
If the defendant is convicted of conspiracy, the sentence should be imposed only on the basis of the defendant's conduct or the conduct of co-conspirators in furtherance of the conspiracy that was known to the defendant or reasonably foreseeable.

76
* * * * * *

77
Where there is no drug seizure or the amount seized does not reflect the scale of the offense, the sentencing judge shall approximate the quantity of the controlled substance. In making this determination, the judge may consider, for example, ... similar transactions in controlled substances by the defendant.

78
Former Application Notes 1 and 2 to U.S.S.G. Sec. 2D1.4, reprinted in United States Sentencing Commission Guidelines Manual (October 15, 1988) (Application note as of the date of sentencing).

79
Defendant Walton was found to be accountable for at least 50 kilograms of cocaine. There was testimony by one of the conspirators, Rolando Hernandez, that he distributed 70-80 kilograms to co-conspirators Marzellus Wilson and Larry White. Further, the evidence showed that Larry White, the leader of the conspiracy in Flint, had several other sources of cocaine in addition to Hernandez. Walton played an important role in White's operation, acting as a courier, seller, and trusted lieutenant in the operation. She had frequent conversations with White about deliveries and made numerous cocaine pickups and cash deliveries. We do not believe the District Court was clearly erroneous in concluding she either knew of or could have reasonably foreseen that the conspiracy would involve at least 50 kilograms of cocaine.

80
The sentencing of Eddie and Rosemary Johnson is more troublesome. There was a great deal less evidence about the extent of their involvement in the conspiracy. The Johnsons argued below and argue here that they cannot be sentenced for dealing any more cocaine than the amounts mentioned in the 1986 tape recordings, an amount less than 25 grams. The District Court concluded that they had dealt in at least 455 grams of cocaine. This figure was calculated based on the following evidence and assumptions: (1) there was evidence that they were dealing at least an "eight ball" (one-eighth ounce or 3.5 grams) of cocaine per week in April 1986; (2) the large quantity of cocaine paraphernalia found in their basement in October 1988 indicates they continued to cut in grade, repackage, and sell cocaine at the time of their arrest in October 1988; (3) assuming that they continued to deal cocaine every week throughout the two and one-half year period between April 1986 and October 1988 as a part of the conspiracy, then they could be found to have dealt in at least 455 grams of cocaine (3.5 grams/week times 130 weeks).

81
Findings of fact important to calculating a defendant's offense level or criminal history category must generally be made by a preponderance of the evidence. See, e.g., Wilson, 900 F.2d 1350 (9th Cir.1990); Fredericks, 897 F.2d 490 (10th Cir.1990); McDowell, 888 F.2d at 290-91; Guerra, 888 F.2d at 250-51; Urrego-Linares, 879 F.2d at 1237-38; Wright, 873 F.2d at 441-42. This standard is difficult to apply when a number of plausible theories concerning the quantity of drugs are presented and the evidence is insufficient to say that any one choice is more likely than not true. Relying on relevant commentary to the guidelines which directs the sentencing judge to "approximate the quantity of the controlled substance," the government asserts that a preponderance of the evidence standard should be relaxed when a trial judge must choose between a number of plausible estimates concerning the quantity of drugs involved in a conspiracy case. Former Application Note 2 to U.S.S.G. Sec. 2D1.4. In the context of such approximations, the government believes that "preponderance of the evidence" should be defined as "at least as much evidence as that in support of any alternative finding." The Johnsons assert that the amount of cocaine should be limited to the amounts discussed in the recorded phone conversations, arguing that any higher figure would necessarily be based on too many inferences. We disagree with the reasoning of both parties. Adopting the standard urged by the government could result in a defendant being held responsible for a quantity of drugs that is more likely than not in excess of the quantity for which the defendant is actually responsible. Applied literally, it could permit a finding based on no evidence. Adopting the result urged by the Johnsons would prohibit the District Court from drawing reasonable inferences that are supported by the facts.

82
We believe that the guidelines do not permit the District Court to hold a defendant responsible for a specific quantity of drugs unless the court can conclude the defendant is more likely than not actually responsible for a quantity greater than or equal to the quantity for which the defendant is being held responsible. If the exact amount cannot be determined, an estimate will suffice, but here also a preponderance of the evidence must support the estimate. Thus when choosing between a number of plausible estimates of drug quantity, none of which is more likely than not the correct quantity, a court must err on the side of caution. A review of the transcript of the Johnsons' sentencing hearing suggests that the District Court itself was struggling with the computation of amounts. It halved the amount claimed by the government. Adopting this standard allows a District Court to perform its traditional fact-finding mission, yet still protects defendants from being held responsible for drug quantities in excess of the amounts for which they more likely than not are responsible. Allowing a court to find a defendant responsible for the maximum quantity of drugs that can plausibly be found could result in defendants receiving excessive sentences based on a finding of quantity that is more likely than not excessive. Such a result would violate a defendant's due process rights. See Townsend v. Burke, 334 U.S. 736, 741, 68 S.Ct. 1252, 1255, 92 L.Ed. 1690 (1948) (sentences may not be based on "materially false" information); McDowell, 888 F.2d 290-91; Wilson, 900 F.2d at 1353. While this may result in an underestimation of the quantity of drugs involved in some few cases, we believe it is nonetheless constitutionally required to prevent excessive sentences.

83
We do not decide whether every fact that enters into a sentencing decision must be proven by a preponderance of the evidence. Not only is that question not before us, but it is quite possible that all facts do not have to be proven by a preponderance of the evidence. See McMillan, 477 U.S. at 91, 106 S.Ct. at 2419 ("Sentencing courts have traditionally heard evidence and found facts without any prescribed burden of proof at all"). We only hold that where a fact is crucial to the determination of a defendant's guidelines base offense level or criminal history score then it must be proven to such a degree.

84
The problem with approximating the quantity of cocaine for which the Johnsons are responsible, the basis on which the District Court sentenced the Johnsons, is compounded in that first one must determine a weekly quantity and then select a time period over which it is more likely than not that they were dealing in that quantity. Here, the weekly amount selected is the lesser of the two problems. The quantity selected, 3.5 grams a week, is modest, and there is reliable evidence through the wiretaps that such quantities were being distributed in April and August 1986. These dates, we believe, are close enough in time to infer the Johnsons were dealing on a regular basis in the interim. However, the only direct evidence that they continued to deal during the next two years and two months is the drug paraphernalia with cocaine traces, which was found in their home when they were arrested in October 1988. There is no circumstantial evidence to support the continuous distribution. Indeed it points the other way. The Johnsons' only asset was a 1975 automobile. Their rent is $250.00 a month. Rosemary Johnson was receiving Aid to Dependent Children, thus providing a source of subsistence aside from drugs. Eddie Johnson acknowledged he had a cocaine habit. However, if the Johnsons were regularly dealing in drugs during the two years after August 1986 and their arrest in October 1988, one would expect to find some evidence of additional income. The evidence is simply insufficient to support a finding of continuous drug dealing during this period. We express no opinion as to whether on resentencing the District Court may wish to consider the conduct of the co-conspirators that was known to one or both of the Johnsons, or that was reasonably foreseeable, the other standards permitted by the guidelines.

85
XII. Failure to Grant the Johnsons a Reduction as "Minor" or

86
"Minimal" Participants

87
The Johnsons also assert that the District Court incorrectly applied the facts in this case by failing to grant them a two or four point reduction as minor or minimal participants under U.S.S.G. Sec. 3B1.2. The evidence does establish that they were minor participants if one compares their activities to the scope of the conspiracy as a whole and the activities of the other defendants. We do not believe this is always the proper inquiry, however. In this case, the Johnsons have only been held responsible for cocaine that they were actively involved in distributing--not the additional amounts involved in the entire conspiracy. As to the distribution of this amount, they were not minor participants. If they are not held responsible in resentencing for the remaining cocaine distributed by the conspiracy, their minor or minimal role in the remaining portion cannot benefit them. Since we do not know what the District Court may do on resentencing, we do not decide whether they were minor participants if the sentence is based on the amounts they knew were distributed by others or reasonably foreseen.

XIII. Conclusion

88
Accordingly, we: (1) AFFIRM the conviction and sentences of defendants Walton, Mitchell, and White, (2) AFFIRM the convictions of defendants Eddie and Rosemary Johnson, but (3) REVERSE the sentences of defendants Eddie and Rosemary Johnson and REMAND their cases for resentencing.

1
The defendants focus on each of the factors in isolation, never showing that there were members of the panel not struck who combined both factors

2
We refuse to draw any inference of discrimination from the fact that the final pool only contained two members who were black. There is no claim that the prosecution took any action that caused the black juror who was replaced not to return for the trial. Where this is the case, the failure of the juror to return does not provide any evidence that other potential jurors who were black were struck because of their race

3
Larry White argues in his discussion of the due process question that there was not a basis for concluding beyond a reasonable doubt that he was responsible for at least 80 kilograms of cocaine. He does not explicitly raise this issue as a challenge to the calculation. Nevertheless, to the extent he also argues that the finding was not supported by a preponderance of the evidence, we disagree
Post Sat Jan 14, 2017 5:19 pm 
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untanglingwebs
El Supremo

After 20 years in prison, one wold hope for some kind of rehabilitation. What I find worrisome i the failure to follow rules for pulling building permits and inspections as well as not complying with city procedures for building and occupancy permits. It is also disturbing that White is using the same name for his venue as that in the drug investigation. For someone who went to prison with a negative net worth, the remodeling seems extensive and quite impressive.
Post Sat Jan 14, 2017 5:26 pm 
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untanglingwebs
El Supremo

Instrument: 201008042113619 Volume Page: AN 201001974
Document Type: Bus Reg
Business Name:
L NOAL WHITE BUILDER DEVELOPER
Address: 552 PAGE ST,FLINT , MI 48505
WHITE BUILDER DEVELOPER,L NOAL
Address: 552 PAGE ST,FLINT , MI 48505
DEVELOPER,L NOAL WHITE BUILDER
Address: 552 PAGE ST,FLINT , MI 48505
Owner Name:
WHITE, LARRY NOAL
Address: 552 PAGE ST,FLINT , MI 48505
Expiration Date: 08/04/2015

Instrument: 201008042113620 Volume Page: AN 201001975
Document Type: Bus Reg
Business Name:
PIECE OF THE ROCK ENTERTAINMENTS
Address: 552 PAGE ST,FLINT , MI 48505
ENTERTAINMENTS,PIECE OF THE ROCK
Address: 552 PAGE ST,FLINT , MI 48505
ENTERTAINMENT,PIECE OF THE ROCK
Address: 552 PAGE ST,FLINT , MI 48505
Owner Name:
WHITE, LARRY NOAL
Address: 552 PAGE ST,FLINT , MI 48505
Expiration Date: 08/04/2015

Instrument: 201503200003690 Volume Page:
Document Type: Bus Reg
Business Name:
PIECE OF THE ROCK ENTERTAINMENTS
Address: 552 PAGE ST,FLINT , MI 48505
Owner Name:
WHITE, LARRY NOAL
Address: 552 PAGE ST,FLINT , MI 48505
Expiration Date: 08/04/2015
Search Criteria: Find all documents where the ( (Last Name = 'WHITE' and First Name = 'LARRY NOAL' ) )
Note: Restricted documents are not displayed even if they meet the search criteria
Post Sun Jan 15, 2017 2:06 pm 
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untanglingwebs
El Supremo

OPEN CASE REGISTER OF ACTIONS 02/03/17 PAGE 1
16-108369-CH JUDGE HAYMAN FILE 12/29/16
GENESEE COUNTY

P 001 PIECE OF THE ROCK ENT,, VS D 001 CITY OF FLINT,,
ATY:SCOTT,KENNETH M
P-32833 810-767-6655


........

01/17/17 SET NEXT DATE FOR: 01/30/17 2:00 PM
MOTION HEARING
ADJ FROM 1/17/17
8 01/30/17 MOTION HEARING
ATTY SCOTT PRESENT. NO ONE
ELSE APPEARED. MOTION MADE FOR
DISMISSAL. COURT GRANTS
DISMISSAL WITHOUT PREJUDICE.

This is from the Piece of the Rock Ent lawsuit against the City. Judge Hayman previously ordered the City to issue an occupancy permit
Post Fri Feb 03, 2017 6:17 pm 
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