Filed: Jan. 27, 2004
Latest Update: Mar. 02, 2020
Summary: RECOMMENDED FOR FULL-TEXT PUBLICATION Pursuant to Sixth Circuit Rule 206 2 United States v. Forest et al. Nos. 02-3022/3064 ELECTRONIC CITATION: 2004 FED App. 0032P (6th Cir.) File Name: 04a0032p.06 _ COUNSEL UNITED STATES COURT OF APPEALS ARGUED: Tina Schneider, Portland, Maine, Joseph W. FOR THE SIXTH CIRCUIT Gardner, Canfield, Ohio, for Appellants. Samuel A. _ Yannucci, ASSISTANT UNITED STATES ATTORNEY, Akron, Ohio, for Appellee. ON BRIEF: Tina Schneider, UNITED STATES OF AMERICA , X Portland
Summary: RECOMMENDED FOR FULL-TEXT PUBLICATION Pursuant to Sixth Circuit Rule 206 2 United States v. Forest et al. Nos. 02-3022/3064 ELECTRONIC CITATION: 2004 FED App. 0032P (6th Cir.) File Name: 04a0032p.06 _ COUNSEL UNITED STATES COURT OF APPEALS ARGUED: Tina Schneider, Portland, Maine, Joseph W. FOR THE SIXTH CIRCUIT Gardner, Canfield, Ohio, for Appellants. Samuel A. _ Yannucci, ASSISTANT UNITED STATES ATTORNEY, Akron, Ohio, for Appellee. ON BRIEF: Tina Schneider, UNITED STATES OF AMERICA , X Portland,..
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RECOMMENDED FOR FULL-TEXT PUBLICATION
Pursuant to Sixth Circuit Rule 206 2 United States v. Forest et al. Nos. 02-3022/3064
ELECTRONIC CITATION: 2004 FED App. 0032P (6th Cir.)
File Name: 04a0032p.06 _________________
COUNSEL
UNITED STATES COURT OF APPEALS
ARGUED: Tina Schneider, Portland, Maine, Joseph W.
FOR THE SIXTH CIRCUIT Gardner, Canfield, Ohio, for Appellants. Samuel A.
_________________ Yannucci, ASSISTANT UNITED STATES ATTORNEY,
Akron, Ohio, for Appellee. ON BRIEF: Tina Schneider,
UNITED STATES OF AMERICA , X Portland, Maine, Joseph W. Gardner, Canfield, Ohio, for
Plaintiff-Appellee, - Appellants. Samuel A. Yannucci, ASSISTANT UNITED
- STATES ATTORNEY, Akron, Ohio, for Appellee. Craig
- Nos. 02-3022/3064 Forest, Lisbon, Ohio, pro se, Herman Eugene Garner, Lisbon,
v. - Ohio, pro se.
>
, _________________
CRAIG FOREST (02-3022) and -
HERMAN E. GARNER, III - OPINION
(02-3064), - _________________
Defendants-Appellants. -
- RONALD LEE GILMAN, Circuit Judge. A federal jury
N found Craig Forest and Herman E. Garner, III guilty of
Appeal from the United States District Court conspiring to distribute more than 500 grams of cocaine and
for the Northern District of Ohio at Akron. of unlawfully possessing firearms. In addition, Forest was
No. 01-00321—David D. Dowd, Jr., District Judge. convicted of possessing with the intent to distribute both
powder cocaine and crack cocaine. Forest was sentenced to
Argued: December 5, 2003 188 months in prison followed by 8 years of supervised
release. Garner was sentenced to 120 months in prison
Decided and Filed: January 27, 2004 followed by 8 years of supervised release.
Before: NORRIS and GILMAN, Circuit Judges; On appeal, Forest and Garner both contend that the
BUNNING, District Judge.* government violated their statutory and constitutional rights
by intercepting cellular phone data that revealed their general
location while they were traveling on public highways.
Forest, moreover, individually argues that government agents
violated his Fourth Amendment right not to be arrested
without probable cause, and that the jury-selection procedures
in the Northern District of Ohio violated his Sixth
Amendment right to a jury drawn from a fair cross-section of
*
The Honorable David L. Bunning, United States District Judge for the community. Garner individually contends that the district
the Eastern District of Kentucky, sitting by designation.
1
Nos. 02-3022/3064 United States v. Forest et al. 3 4 United States v. Forest et al. Nos. 02-3022/3064
court abused its discretion by refusing to allow him to the authorization to intercept communications over Garner’s
introduce an allegedly exculpatory statement by his cellular phone and also authorized the government to do the
codefendant Forest, erred in ruling that the government had same over Forest’s cellular phone. The orders further
given him adequate notice of its intent to seek a sentence required Sprint Spectrum L.P. (Sprint), the defendants’
enhancement based upon his prior felony drug conviction, and cellular service provider, to disclose to the government all
erred at sentencing by finding him responsible for at least two subscriber information, toll records, and other information
kilograms of cocaine. For the reasons set forth below, we relevant to the government’s investigation.
AFFIRM the convictions and sentences of both defendants.
Wire communications intercepted by the DEA between
I. BACKGROUND May 8 and May 30 of 2001 indicated that Forest and Garner
were expecting the imminent arrival of a large shipment of
This appeal involves numerous issues that turn on their own cocaine. DEA agents therefore conducted physical
distinct set of facts. A more detailed factual discussion is surveillance of both defendants on May 31, 2001. The agents,
therefore included under each heading in Part II below. however, were unable to maintain constant visual contact.
Generally, however, Forest and Garner were part of a large
drug trafficking operation in the area of Youngstown/Warren, In order to reestablish visual contact, a DEA agent dialed
Ohio. In March of 2001, agents of the Drug Enforcement Garner’s cellular phone (without allowing it to ring) several
Administration (DEA) obtained court authorization to begin times that day and used Sprint’s computer data to determine
intercepting the defendants’ cellular phone conversations. which cellular transmission towers were being “hit” by
These interceptions culminated with the DEA agents arresting Garner’s phone. This “cell-site data” revealed the general
the defendants on June 1, 2001 at a gas station, along with location of Garner. From this data, DEA agents determined
two women couriers who had transported cocaine from that Garner had traveled to the Cleveland area and then
California to Ohio. The two women pled guilty to conspiring returned to the area of Youngstown/Warren.
to distribute cocaine. Forest and Garner went to trial. On
November 2, 2001, Forest and Garner were found guilty on DEA agents resumed visual surveillance in Warren and
the various counts of conspiracy, drug possession, and observed the defendants driving in Garner’s car along with
firearms possession. Both filed timely notices of appeal. two females. The agents followed the car to the area of
Austintown, Ohio and then again lost visual contact. This
II. ANALYSIS caused a DEA agent to once again activate Garner’s cellular
phone to determine that Garner was back in the area of
A. Title III Warren. Visual surveillance resumed when DEA agents
spotted Garner’s vehicle at a hotel in Niles, Ohio. The agents,
The DEA identified Forest and Garner as active cocaine acting without an arrest warrant, apprehended Forest, Garner,
traffickers in the area of Youngstown/Warren, Ohio. On and the two females at a gas station the following day, June 1,
March 12, 2001, the DEA obtained district court authorization 2001.
to intercept communications over Garner’s cellular phone.
The intercepted conversations, according to the DEA, Garner contends that the DEA’s use of cell-site data
demonstrated that Forest and Garner were jointly involved in effectively turned his cellular phone into a tracking device,
drug trafficking. On May 1, 2001, the district court renewed violating his rights under both Title III of the Omnibus Crime
Nos. 02-3022/3064 United States v. Forest et al. 5 6 United States v. Forest et al. Nos. 02-3022/3064
Control and Safe Streets Act of 1968 (Title III), 18 U.S.C. origin and the point of reception . . . furnished or
§§ 2510-2522, and the Fourth Amendment to the United operated by any person engaged in providing or
States Constitution. The cell-site data and resulting evidence, operating such facilities for the transmission of interstate
Garner claims, should therefore have been suppressed. or foreign communications or communications affecting
interstate or foreign commerce;
Forest joins in Garner’s claims under Title III and the
Fourth Amendment. As the government points out, however, (2) “oral communication” means any oral
Forest lacks standing to raise these issues. Forest is not an communication uttered by a person exhibiting an
“aggrieved person” with standing under Title III because the expectation that such communication is not subject to
DEA intercepted cell-site data only from Garner’s cellular interception under circumstances justifying such
phone. See 18 U.S.C. § 2518(10)(a) (noting that only an expectation, but such term does not include any
“aggrieved person” may move to suppress illegally electronic communication; . . .
intercepted communication); 18 U.S.C. § 2510(11)
(“‘[A]ggrieved person’ means a person who was a party to (12) “electronic communication” means any transfer of
any intercepted . . . electronic communication.”). Forest signs, signals, writing, images, sounds, data, or
simply accompanied the party (Garner) whose cell-site data intelligence of any nature transmitted in whole or in part
was being intercepted. by a wire, radio, electromagnetic, photoelectronic or
photooptical system that affects interstate or foreign
He also has no standing to assert the constitutional rights of commerce, but does not include—
Garner. Forest may challenge only government conduct that (A) any wire or oral communication; . . .
violated his legitimate expectation of privacy. United States (C) any communication from a tracking device (as
v. Payner, 447 U.S. 727, 732 (1980) (holding that the defined in section 3117 of this title) . . . .
defendant had no legitimate expectation of privacy in
financial documents obtained from a bank official’s 18 U.S.C. § 2510.
briefcase). Because Forest does not claim any legitimate
expectation of privacy in the cell-site data from Garner’s The district court concluded that Garner’s cell-site data was
cellular phone, he lacks standing to challenge the DEA’s transmitted as part of an electronic communication, rather
actions on Fourth Amendment grounds. We therefore will than as a wire or oral communication. We review a district
consider only Garner’s claims under Title III and the Fourth court’s legal conclusions regarding suppression issues de
Amendment. novo and will sustain its related factual findings unless clearly
erroneous. United States v. Murdock, 63 F.3d 1391, 1393
Title III deals with the interception of three types of (6th Cir. 1995). As between the three types of
communication: wire, oral, and electronic. The statute communication covered by Title III, the district court’s
specifically defines each of these types: conclusion strikes us as correct. Cell-site data is not part of
an “aural transfer” or “oral communication.” See 18 U.S.C.
(1) “wire communication” means any aural transfer made §§ 2510(1) (defining wire communication) and (2) (defining
in whole or in part through the use of facilities for the oral communication). Instead, cell-site data is transmitted
transmission of communications by the aid of wire, through a “transfer of . . . data,” which arguably falls within
cable, or other like connection between the point of
Nos. 02-3022/3064 United States v. Forest et al. 7 8 United States v. Forest et al. Nos. 02-3022/3064
the definition of electronic communication. See 18 U.S.C. expressly states that “[t]he remedies and sanctions described
§ 2510(12). in this chapter with respect to the interception of electronic
communications are the only judicial remedies and sanctions
A strong argument exists, however, that cell-site data is not for nonconstitutional violations of this chapter involving such
a form of communication at all. Communication is defined as communications.” 18 U.S.C. § 2518(10)(c). Suppression,
“a verbal or written message,” or “a process by which therefore, is not a permissible statutory remedy under Title III
information is exchanged between individuals through a for the illegal interception of an electronic communication.
common system of symbols, signs, or behavior.” Merriam- See Meriwether, 917 F.2d at 960 (“[Title III] does not provide
Webster’s Collegiate Dictionary 233 (10th ed. 1997). Cell- an independent statutory remedy of suppression for
site data is not a “message,” nor is it “exchanged between interceptions of electronic communications.”).
individuals,” but instead is simply data sent from a cellular
phone tower to the cellular provider’s computers. In contrast, Garner also contends that the DEA’s use of his cell-site
this court has assumed that a phone number transmitted to a data effectively turned his cellular phone into a “tracking
pager constitutes an electronic communication. See United device” within the meaning of 18 U.S.C. § 3117(a). This
States v. Meriwether,
917 F.2d 955, 960 (6th Cir. 1990). subsection provides that “[i]f a court is empowered to issue a
Unlike cell-site data, a phone number sent via a pager is a warrant or other order for the installation of a mobile tracking
“message” that is “exchanged between individuals.” device, such order may authorize the use of that device within
the jurisdiction of the court, and outside that jurisdiction if the
But we do not have to decide this issue. Cell-site data device is installed in that jurisdiction.” Section 3117(b)
clearly does not fall within the definitions of wire or oral defines a “tracking device” as “an electronic or mechanical
communication; the only possible Title III category is device which permits the tracking of the movement of a
electronic communication. If cell-site data is not an person or object.”
electronic communication, then Title III does not apply at all
and Garner cannot invoke its suppression remedy. And even We would first note that Garner’s argument that the DEA
if cell-site data is deemed to fall under the definition of used his cell phone as a tracking device undermines his
electronic communication, then suppression is still not an contention that suppression is appropriate under Title III. The
available remedy, as the next paragraph explains. Thus, definition of “electronic communication” in Title III excludes
whether or not cell-site data fits the definition, the result is the “any communication from a tracking device (as defined in
same: Title III does not give Garner a suppression remedy. section 3117 of this title).” 18 U.S.C. § 2510(12)(C). But
We will therefore assume without deciding that cell-site data electronic communication is the only type of communication
fits within the definition of electronic communication. covered in Title III that even arguably applies to Garner’s
cell-site data. Therefore, if the cell-site data is a
Title III allows “[a]ny aggrieved person” to “move to “communication from a tracking device,” as Garner argues,
suppress the contents of any [illegally intercepted] wire or then a suppression remedy is clearly not authorized by
oral communication.” 18 U.S.C. § 2518(10)(a) (emphasis Title III.
added). The remedies for the illegal interception of an
electronic communication, in contrast, are criminal penalties Assuming, moreover, that Garner is correct in his assertion
and, in some cases, being subjected to a civil suit by the that his phone was used as a tracking device, at least one
federal government. 18 U.S.C. § 2511. Title III also circuit has held that § 3117 does not provide a suppression
Nos. 02-3022/3064 United States v. Forest et al. 9 10 United States v. Forest et al. Nos. 02-3022/3064
remedy. See United States v. Gbemisola, 225 F.3d 753, 758 the driver “began making evasive maneuvers.”
Id. at 278.
(D.C. Cir. 2000), where the court observed that, in contrast to But the beeper’s signal allowed the police to reestablish
other statutes governing electronic surveillance, § 3117 “does visual contact and eventually locate the container inside a
not prohibit the use of a tracking device in the absence of cabin. The Supreme Court held that the police had not
conformity with the section. . . . Nor does it bar the use of invaded the defendants’ legitimate expectation of privacy
evidence acquired without a section 3117 order.” (Emphasis because “[t]he governmental surveillance conducted by means
in original.) We find Gbemisola to be persuasive and of the beeper in this case amounted principally to the
likewise conclude that § 3117 does not provide a basis for following of an automobile on public streets and
suppressing Garner’s cell-site data or any other evidence in highways. . . . A person travelling in an automobile on public
the present case. thoroughfares has no reasonable expectation of privacy in his
movements from one place to another.” Id. at 281.
B. Fourth Amendment
In the present case, Garner acknowledges that the cell-site
In addition to his statutory contentions, Garner argues that data was used to track his movements only on public
the cell-site data and all resulting evidence should be highways. The rationale of Knotts therefore compels the
suppressed under the Supreme Court’s Fourth Amendment conclusion that Garner had no legitimate expectation of
exclusionary rule. The Fourth Amendment protects “[t]he privacy in the cell-site data because the DEA agents could
right of the people to be secure in their persons, houses, have obtained the same information by following Garner’s
papers, and effects, against unreasonable searches and car. See Knotts, 460 U.S. at 281-82 (emphasizing that the
seizures. . . .” In analyzing any Fourth Amendment issue, the defendants had no legitimate expectation of privacy because
threshold question is whether there has been either a “search” the police could have tracked the defendants’ movements by
or a “seizure.” The Supreme Court has explained that “a driving behind them on the public roads).
Fourth Amendment search occurs when the government
violates a subjective expectation of privacy that society Garner, however, contends that the present case is
recognizes as reasonable.” Kyllo v. United States, 533 U.S. distinguishable from Knotts because the cell-site data
27, 33 (2001). This court has used slightly different provided information that the DEA agents could not have
terminology, referring to a Fourth Amendment search as an obtained simply by following his car. He points out that the
invasion of a “legitimate expectation of privacy.” See United DEA twice lost visual contact on May 31, 2001 and had to
States v. Meriwether,
917 F.2d 955, 958 (6th Cir. 1990). resort to the cell-site data in order to locate him. But these
facts are nearly identical to the facts in Knotts, where the
In United States v. Knotts, 460 U.S. 276 (1983), the police lost visual contact after the suspects engaged in
Supreme Court considered whether the police invaded the “evasive
maneuvers.” 460 U.S. at 278. The Supreme Court
defendants’ legitimate expectation of privacy by monitoring in Knotts recognized that “the beeper enabled the law
the signal emitted from a beeper (a radio transmitter) placed enforcement officials . . . to ascertain the ultimate resting
in a container of chemicals by the government. The place of the [chemicals] when they would not have been able
defendants had placed the container in a car, and the signal to do so had they relied solely on their naked eyes.”
Id. at
emitted from the beeper allowed the police to track the 285. But the Court held that “[n]othing in the Fourth
movements of the car along public roads. At one point during Amendment prohibited the police from augmenting the
the tracking, the police lost visual contact with the car after sensory faculties bestowed upon them at birth with such
Nos. 02-3022/3064 United States v. Forest et al. 11 12 United States v. Forest et al. Nos. 02-3022/3064
enhancement as science and technology afforded them in this C. Warrantless arrest
case.”
Id. at 282. This holding defeats Garner’s argument.
Although the DEA agents were not able to maintain visual Forest contends that the DEA agents violated his Fourth
contact with Garner’s car at all times, visual observation was Amendment rights by arresting him without probable cause,
possible by any member of the public. The DEA simply used and that his post-arrest statements and conduct therefore
the cell-site data to “augment[] the sensory faculties bestowed should be suppressed as the fruit of an illegal arrest. We
upon them at birth,” which is permissible under Knotts. review a district court’s determination of probable cause de
novo and will sustain the findings of fact underlying the
Garner also attempts to distinguish Knotts by arguing that, probable-cause determination unless clearly erroneous.
regardless of whether he had a legitimate expectation of United States v. Fullerton, 187 F.3d 587, 589-90 (6th
privacy regarding his location, he had a legitimate expectation Cir.1999).
of privacy in the cell-site data itself. He points out that in
Knotts the government owned the beeper and therefore the The Fourth Amendment allows warrantless arrests of a
signal it sent out, as opposed to the present case where the person in a public place so long as the arresting officer has
government had no ownership interest in Garner’s phone or probable cause to believe that the person has committed or is
data. Furthermore, he notes that his contract with Sprint does committing a crime. United States v. Watson,
423 U.S. 411,
not authorize the disclosure of his cell-site data. Garner also 414-15 (1976). Probable cause means that, at the moment of
persuasively distinguishes the present case from Smith v. the arrest, “the facts and circumstances within [the officer’s]
Maryland,
442 U.S. 735, 745 (1979), where the Supreme knowledge and of which [the officer] had reasonably
Court held that a defendant had no legitimate expectation of trustworthy information were sufficient to warrant a prudent
privacy in the numbers he dialed when using his phone. man in believing that the [suspect] had committed or was
Unlike the defendant in Smith, Garner points out that that “he committing an offense.” Donovan v. Thames,
105 F.3d 291,
did not voluntarily convey his cell site data to anyone. In 298 (6th Cir. 1997).
fact, he did not use his telephone. The agent dialed Garner’s
phone number and the dialing caused Garner’s phone to send At the time they arrested Forest and the others, the DEA
out signals.” (Emphasis in original.) agents were aware that:
Although Garner’s argument on this point might have merit (1) Coleman Pless was a major trafficker of cocaine
in other contexts, the distinction between the cell-site data and in the area of Youngstown/Warren, Ohio;
Garner’s location is not legally significant under the particular
facts of this case. Here, the cell-site data is simply a proxy for (2) Pless received his cocaine from Acie Cole in
Garner’s visually observable location. But as previously Southern California;
noted, Garner had no legitimate expectation of privacy in his
movements along public highways. We believe, therefore, (3) Cole transported his cocaine to Ohio using female
that the Supreme Court’s decision in Knotts is controlling, couriers who carried the drugs on board airplanes;
and conclude that the DEA agents did not conduct a search (4) Forest and Pless had daily telephone contact
within the meaning of the Fourth Amendment when they sometime before the summer of 2000;
obtained Garner’s cell-site data.
Nos. 02-3022/3064 United States v. Forest et al. 13 14 United States v. Forest et al. Nos. 02-3022/3064
(5) Garner was also a trafficker of cocaine in the (15) Later that day Forest and Garner purchased a
Youngstown/Warren area, and had sold cocaine to a DEA digital scale from an office supply store;
informant;
(16) At 7:51 p.m. on June 1, 2001, Garner had a
(6) Forest and Garner had frequent telephone contact phone conversation with Jeffrey Davis, who was attempting
in the fall of 2000; to buy cocaine from Forest and Garner for a third party;
during the conversation Garner told Davis that the cocaine
(7) Forest made telephone calls to a Southern would be gone if Davis did not purchase it by the next day.
California area code that were similar to calls made by Pless,
suggesting that Cole was supplying Forest with cocaine; All of this information was known to the DEA when the
agents arrested Forest and the others at a gas station later
(8) Forest had supplied Garner with cocaine in the during the night of June 1. We find no error in the district
past; court’s conclusion that this information was sufficient to lead
a prudent person to believe that Forest was in the process of
(9) Phone conversations involving both Forest and committing a crime at the time of his arrest. Because the
Garner during the last week of May of 2001 suggested that a DEA agents had probable cause to arrest Forest, the district
shipment of cocaine to Forest was imminent; court properly denied his motion to suppress the evidence
obtained as the result of his warrantless arrest.
(10) On May 31, 2001, Garner had a phone
conversation with a potential drug buyer and told the buyer to D. Jury drawn from a fair cross-section of the community
get his money ready;
Court is held at three locations in the Eastern Division of
(11) Later that day, Forest and Garner drove together the Northern District of Ohio: Akron, Cleveland, and
to the Cleveland Hopkins airport; Youngstown. This case was heard in Akron. Criminal cases
are randomly assigned to judges in the district, and the
(12) After Forest’s and Garner’s trip to the airport, location of the judge determines the pool from which jurors
they drove to a hotel in Niles, Ohio along with two female are selected. Forest contends on appeal, as he did in the
passengers; district court, that he was deprived of his Sixth Amendment
right to a venire drawn from a fair cross-section of the
(13) Garner left the hotel and was stopped by a police community because African-Americans are systematically
officer for speeding; the officer used a police dog to sniff the underrepresented in the pool of potential jurors who serve in
vehicle; although the dog alerted to the presence of narcotics, Akron. “Whether a defendant has been denied his right to a
a subsequent search of the car found no drugs; jury selected from a fair cross-section of the community is a
(14) On June 1, 2001, DEA agents learned that one of mixed question of law and fact, which we review de novo.”
the women staying at the hotel lived in Southern California in United States v. Allen, 160 F.3d 1096, 1101 (6th Cir. 1998).
the vicinity of Cole, the drug trafficker who supplied cocaine The Sixth Amendment guarantees “the right to a speedy
to Forest; and public trial, by an impartial jury of the State and district
wherein the crime shall have been committed.” This right to
Nos. 02-3022/3064 United States v. Forest et al. 15 16 United States v. Forest et al. Nos. 02-3022/3064
an impartial jury includes the right to a jury drawn from a relation to the number of [African-Americans eligible for jury
“fair cross section of the community.” Taylor v. Louisiana, service] in the community.” In the context of jury selection,
419 U.S. 522, 526 & 530 (1975). As the Supreme Court has one way to evaluate the fairness of representation is by
emphasized, however, there is “no requirement that petit calculating “absolute disparity,” which refers to “the
juries actually chosen must mirror the community.”
Id. at difference between the percentage of a certain population
538 (emphasis added). “Defendants are not entitled to a jury group eligible for jury duty and the percentage of that group
of any particular composition, . . . but the jury wheels, pools who actually appear in the venire.” United States v. Greene,
of names, panels or venires from which juries are drawn must
971 F. Supp. 1117, 1128 n.11 (E.D. Mich. 1997).
not systematically exclude distinctive groups in the
community and thereby fail to be reasonably representative In the present case, Forest suggests two possible measures
thereof.”
Id. (citations omitted). of absolute disparity. The first measure compares the
percentage of African-Americans in the Eastern Division
In order to establish a prima facie violation of the fair- (13.7 percent) with the percentage who live in the counties
cross-section requirement, a criminal defendant must show: that provide juries for the Akron court (8 percent), which
produces an absolute disparity of 5.7 percent (13.7 - 8 = 5.7).
(1) that the group alleged to be excluded is a distinctive A second way to measure the absolute disparity is to compare
group in the community; the percentage of African-Americans in the Eastern Division
(13.7 percent) with the percentage on the venire (6.5 percent),
(2) that the representation of this group in venires from which demonstrates an absolute disparity of 7.2 percent (13.7
which juries are selected is not fair and reasonable in - 6.5 = 7.2).
relation to the number of such persons in the community;
and Neither measure can establish a constitutional violation,
however, because both rely on the total percentage of African-
(3) that under-representation is due to a systematic Americans in the Eastern Division, rather than on the
exclusion of the group in the jury selection process. percentage who are eligible to serve on juries. Cases from
both the Supreme Court and this court demonstrate that, when
Duren v. Missouri, 439 U.S. 357, 364 (1979). measuring absolute disparity, the appropriate comparison is
between the percentage of group members who are eligible
Forest claims that African-Americans are systematically for jury service in the population as a whole and in the jury
excluded from Akron juries. The Supreme Court has pool. See, e.g., Taylor v. Louisiana, 419 U.S. at 524
recognized that African-Americans are a distinctive group in (comparing the percentage of women eligible for jury service
the community. Lockhart v. McCree,
476 U.S. 162, 175 in the community with the percentage of women in an
(1986) (citing African-Americans as an example of a average venire); Duren v.
Missouri, 439 U.S. at 362-63
distinctive group in the community). Forest can thus (comparing the percentage of adult women in the community
establish the first of the Duren factors. with the percentage of women in an average venire); Ford v.
This brings us to the second Duren factor, focusing on Seabold,
841 F.2d 677, 683 (6th Cir. 1988) (comparing the
whether Forest has demonstrated that the representation of percentage of women 18 years or older in the community with
African-Americans on venires is not “fair and reasonable in the percentage of women in the jury pool). In the present
case, Forest has presented no evidence regarding the
Nos. 02-3022/3064 United States v. Forest et al. 17 18 United States v. Forest et al. Nos. 02-3022/3064
percentage of African Americans in the Eastern Division who of cocaine to codefendant Jeffrey Davis. But the statement
are eligible for jury service. His statistics that provide recites that the couriers delivered three kilograms of cocaine
nothing more than the total African-American population of from California on May 31, 2001. Garner, then, was clearly
the Eastern Division are therefore insufficient to establish a capable of delivering more than one kilogram of cocaine by
prima facie case of a Sixth Amendment violation. collaborating with Forest. So this portion of Forest’s
statement is not exculpatory of Garner and therefore not
E. Admission and use of Forest’s post-arrest statement admissible under Rule 804(b)(3).
After his arrest, Forest provided a written statement to the Garner also contends that the statement demonstrates that
DEA. Garner moved the district court, pursuant to Rule he was unaware of the purpose of the trip to Cleveland, where
804(b)(3) of the Federal Rules of Evidence, to allow him to Forest and Garner picked up the female drug couriers from
either introduce Forest’s statement into evidence or to use the California, and that there was no agreement between Forest
statement to cross-examine a DEA agent who testified at trial. and Garner to distribute the drugs delivered by the California
We apply the “abuse of discretion” standard to a district women. In his statement, Forest said: “A few days prior to
court’s evidentiary rulings. Trepel v. Roadway Express, Inc., 5/31/01 I told [Garner] that something was going to happen.
194 F.3d 708, 716 (6th Cir.1999). On 5/31/01 I told [Garner] I had to go to Cleveland and he
asked me if I was going by myself or if I needed someone to
Rule 804(b)(3) is an exception to the hearsay rule, allowing go with me. I told him I didn’t care. He told me he would
the admission of statements that are contrary to the ride. We then went to his car and left for Cleveland to pick
declarant’s interests at the time they are made. In the context the girls up.” Forest also states that he was the one who
of confessions, Rule 804(b)(3) allows a defendant to purchased the digital scale, and that he alone weighed and
introduce statements that exculpate the defendant by repackaged the cocaine. In sum, these portions of Forest’s
inculpating the person who made the statement. United statement can be viewed as exculpating Garner by implying
States v. McCleskey, 228 F.3d 640, 644 (6th Cir. 2000). If that Forest alone (1) knew the purpose of the trip to
some parts of a statement are self-inculpatory and other parts Cleveland, (2) was responsible for purchasing the scale, and
are not, a district court may admit only the self-inculpatory (3) weighed and repackaged the cocaine without Garner’s
portions. United States v. Price,
134 F.3d 340, 346-47 (6th knowledge. Because these assertions tend to prove that
Cir. 1998) (holding that the district court should have Garner was not involved in the conspiracy to distribute
redacted the non-self-inculpatory portions of a statement). cocaine, the threshhold requirement of Rule 804(b)(3) was
Rule 804(b)(3) also states that confessions of a third party satisfied.
offered to exculpate the defendant are “not admissible unless
corroborating circumstances clearly indicate the This brings us to the question of whether “corroborating
trustworthiness of the statement.” circumstances clearly indicate the trustworthiness of the
statement.” Fed. R. Evid. 804(b)(3). Although Garner
In the present case, the district court refused to admit contends that “the statement was corroborated by the
Forest’s statement because “the Forest statement really interlocking post arrest statements and the trial testimony of
contains nothing specific which would serve to exculpate the California women,” he provides no citations to the record
Garner.” Garner disagrees. He first argues that the statement in support of this argument. The women’s statements and
demonstrates that he was not capable of delivering a kilogram testimony, moreover, do not corroborate Forest’s statement
Nos. 02-3022/3064 United States v. Forest et al. 19 20 United States v. Forest et al. Nos. 02-3022/3064
because the women were not present (1) for any discussions others in furtherance of the jointly undertaken criminal
between Forest and Garner regarding the trip to Cleveland, activity . . . .
(2) when Forest and Garner purchased the scale at the office
supply store, or (3) when Forest weighed and repackaged the Sentencing Guidelines § 1B1.3(a)(1). In the present case, the
cocaine. Forest’s statement therefore lacks any district court found that “at least 2 kilograms but less than 3.5
“corroborating circumstances clearly indicating the kilograms of cocaine is properly attributed to Garner’s
trustworthiness of the statement,” especially in light of the personal and jointly undertaken criminal activity.” The
evidence recited in Part II.F. below regarding Garner’s district court relied on the following evidence in reaching this
involvement in the conspiracy. We thus cannot say that the conclusion:
district court abused its discretion by refusing to allow Garner
to either introduce the statement into evidence or to use it to (1) Intercepted cell phone conversations revealed that
cross-examine a DEA agent. Garner was involved in drug trafficking along with Forest;
F. Amount of cocaine attributed to Garner for (2) Garner’s conversations demonstrated that he acted
sentencing purposes as a broker between Forest and potential customers in one-
kilogram cocaine transactions;
Garner also claims that the district court erred during
sentencing when it found that between 2 and 3.5 kilograms of (3) In mid-May of 2001, a DEA informant ordered
cocaine were attributable to Garner’s criminal conduct. He two kilograms of cocaine from Garner, who then
contends that the district court should have attributed to him communicated the order to Forest;
an indeterminate amount of cocaine, which would have
reduced his offense level from 28 to 12. (4) On May 31, 2001, DEA agents observed Forest
and Garner together for most of the day. Later that day Forest
A district court’s calculation of the amount of drugs and Garner drove (in Garner’s car) to pick up the drug
attributed to a defendant must be supported by a couriers in Cleveland and transport them back to the
preponderance of the evidence. United States v. Meacham, 27 Youngstown/Warren area;
F.3d 214, 216 (6th Cir. 1994). We review the district court’s
calculation under the “clearly erroneous” standard. United (5) The couriers testified that they had brought four
States v. Walton, 908 F.2d 1289, 1300-01 (6th Cir. 1990). packages to Ohio: two kilogram-sized packages and two
smaller ones;
Pursuant to the United States Sentencing Guidelines, a
defendant is liable for: (6) On June 1, 2001, Garner met with Forest and the
couriers, then accompanied Forest to an office-supply store,
(A) all acts or omissions committed, aided, abetted, where Forest purchased a digital scale;
counseled, commanded, induced, procured or willfully
caused by the defendant; and (7) At approximately 7:51 p.m. on June 1, 2001,
Garner told Jeffrey Davis that the cocaine would be gone
(B) in the case of a jointly undertaken criminal activity soon and that any deal would have to be consummated the
. . . , all reasonably foreseeable acts and omissions of next day.
Nos. 02-3022/3064 United States v. Forest et al. 21 22 United States v. Forest et al. Nos. 02-3022/3064
The above evidence, recited by the district court in its accordance with Title 21, United States Code Section 851, the
sentencing memorandum, demonstrates that Garner had United States gives notice that should an adjudication of guilt
previously participated in the distribution of multiple be entered against HERMAN GARNER III on Count 1 of the
kilograms of cocaine, that Forest and Garner participated in within indictment, the United States will invoke the
a joint effort to distribute two kilograms of cocaine to the applicable penalty enhancement provisions of Title 21, United
DEA informant, and that they jointly transported three States Code Section 841(b).”
kilograms of cocaine in Garner’s car on May 31, 2001.
Attributing at least two kilograms of cocaine to Garner for the This court has held that, in examining the adequacy of
purposes of sentencing was therefore not clearly erroneous. notice under 21 U.S.C. § 851(a), “the proper inquiry is
whether the government’s information provided the defendant
G. Sentence enhancement based on Garner’s prior reasonable notice of [the government’s] intent to rely on a
conviction particular conviction and a meaningful opportunity to be
heard.” King, 127 F.3d at 488-89 (quotations marks omitted).
Garner was convicted of conspiring to distribute cocaine, in Courts should interpret Ҥ 851's notice requirements so as to
violation of 21 U.S.C. §§ 841(a)(1) and 846. A defendant avoid elevating form over substance.”
Id. at 489. In the
convicted of violating § 841(a)(1) is subject to a sentence present case, the Specification in the indictment provided
enhancement for a prior drug conviction if (1) the government Garner with clear notice of the government’s intent to seek a
files, before trial or a plea of guilty, an information stating in sentence enhancement based upon a specific prior drug
writing the prior conviction, and (2) the district court, after conviction. Garner also had a meaningful opportunity to deny
conviction but before sentencing, asks the defendant to admit the prior conviction by a written response at any time after the
or deny the prior conviction and informs the defendant that grand jury handed down the indictment in this case on July 5,
any challenge to a prior conviction is waived if not raised 2001. Overturning the enhancement because the government
before sentencing. 21 U.S.C. § 851(a)-(b). Any challenge to gave notice in a “Specification” included in the indictment
the validity of a prior drug conviction must be made by a rather than in a separate “information” would accomplish
written response, 21 U.S.C. § 851(c), but a defendant may nothing more than “elevating form over substance.”
Id.
not challenge a conviction that occurred more than five years
before the government files the required information. Garner next contends that the sentence enhancement is
21 U.S.C. § 851(e). invalid because the district court failed to satisfy its
obligations under 21 U.S.C. § 851(b) to ask Garner to admit
Garner contends that his sentence enhancement pursuant to or deny the prior conviction and to inform him that any
§ 841(a)(1) must be reversed because the required information challenge to a prior conviction is waived if not raised before
was not filed by the government. The sufficiency of the sentencing. A district court’s failure to conduct a § 851(b)
government’s filing under 21 U.S.C. § 851(a) presents a colloquy, however, is subject to “harmless error” review.
question of law that we review de novo. United States v. United States v. Hill, 142 F.3d 305, 312-13 (6th Cir. 1998).
King,
127 F.3d 483, 487 (6th Cir. 1997).
In Hill, this court held that the district court’s failure to
Garner’s indictment contains a “Specification” that conduct a § 851(b) colloquy was harmless because (1) the
identifies Garner’s prior drug conviction by court, date, and defendant failed to challenge his prior convictions in the
case number. The Specification also states that “in district court, as required by 21 U.S.C. § 851(c), and (2) the
Nos. 02-3022/3064 United States v. Forest et al. 23
prior convictions occurred more than five years before the
government filed the information in that case, so that
21 U.S.C. § 851(e) prevented the defendant from challenging
the validity of the convictions. Id. at 313. The present case
is indistinguishable from Hill. Garner did not object to the
enhancement either at sentencing or when he received the
Presentence Report, which refers to his prior conviction.
Garner’s prior conviction, moreover, occurred on April 5,
1990. This was far more than five years before the jury
handed down the indictment, which included the
Specification, on July 5, 2001. Even if the district had
conducted a § 851(b) colloquy, therefore, Garner could not
have challenged the validity of his prior conviction. See
21 U.S.C. § 851(e). Any error by the district court was thus
harmless.
III. CONCLUSION
For the reasons set forth above, we AFFIRM the
convictions and sentences of both defendants.
