NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                           File Name: 09a0641n.06

                                           No. 07-5299
                                                                                         FILED
                          UNITED STATES COURT OF APPEALS
                                                                                     Sep 16, 2009
                                                                               LEONARD GREEN, Clerk
                               FOR THE SIXTH CIRCUIT


UNITED STATES OF AMERICA,                        )
                                                 )
       Plaintiff-Appellee,                       )
                                                 )    ON APPEAL FROM THE UNITED
v.                                               )    STATES DISTRICT COURT FOR THE
                                                 )    EASTERN DISTRICT OF TENNESSEE
MICHAEL VASSAR,                                  )
                                                 )
       Defendant-Appellant.                      )


       Before: COLE and COOK, Circuit Judges; COHN, District Judge.*


       COOK, Circuit Judge. A jury convicted Michael Vassar of conspiring to distribute and to

possess with the intent to distribute less than five hundred grams of cocaine, in violation of 21 §

U.S.C. 846, 841(a)(1), and 841(b)(1)(A), and of distributing cocaine, in violation of 21 §§ U.S.C.

841(a)(1) and 841(b)(1)(C). Vassar appeals his conviction and sentence. For the reasons that follow,

we affirm.


                                         I. Background


       Vassar was arrested in August 2005 after investigators recorded him selling 6.61 grams of

cocaine to Rick Fann, an associate of Vassar’s who had agreed to cooperate with authorities. A

grand jury indicted Vassar for distributing cocaine (Count 3), and—along with Dewey Lynn Phillips,

       *
        The Honorable Avern Cohn, United States District Judge for the Eastern District of
Michigan, sitting by designation.
No. 07-5299
United States v. Vassar


James Mark Thornton, and Michael Charles Gunter—for conspiring to distribute and to possess with

the intent to distribute five kilograms of cocaine (Count 1). The jury found Vassar guilty as charged

in Count 3, and guilty of conspiring to distribute and to possess with the intent to distribute less than

500 grams of cocaine, acquitting him of conspiring to distribute and possess more than 500 grams

of cocaine. The district judge, after calculating a Guidelines range of 168 to 210 months, sentenced

Vassar to 144 months’ imprisonment. Vassar now appeals.


                                      II. Vassar’s Conviction


A. Sufficiency of the Indictment


        Vassar raises numerous challenges to his conviction, arguing first that Count 1 of his

indictment was insufficient, a matter we review de novo. United States v. Gatewood, 

,

986 (6th Cir. 1999). Specifically, Vassar claims that Count 1 is unconstitutionally vague because

it alleges that the conspiracy began “on or before January 1, 2004” and that it involved “others

known and unknown to the grand jury.” He further protests its failure to allege that the conspiracy

was unlawful or that his participation was knowing and voluntary.


        Count 1 reads as follows:


        From on or before January 1, 2004, until on or about August 24, 2005, within the
        Eastern District of Tennessee, the defendants, DEWEY LYNN PHILLIPS, JAMES
        MARK THORNTON, MICHAEL CARL VASSAR, MICHAEL CHARLES
        GUNTER, and others known and unknown to the grand jury, did conspire,
        confederate and agree with each other and others both known and unknown to

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United States v. Vassar


       distribute and to possess with intent to distribute five (5) kilograms or more of a
       mixture and substance containing a detectable amount of cocaine, a Schedule II
       controlled substance, in violation of Title 21, United States Code, Sections 846,
       841(a)(1) and 841(b)(1)(A).


       We find this language sufficient. “An indictment is sufficient ‘if it, first, contains the

elements of the offense charged and fairly informs a defendant of the charge against which he must

defend, and, second, enables him to plead an acquittal or conviction in bar of future prosecutions for

the same offense.’” United States v. Mohney, 

, 903 (6th Cir. 1991) (quoting Hamling

v. United States, 

, 117 (1974)). Courts have found indictments insufficient where they

are open-ended as to both beginning and end dates, see United States v. Cecil, 

, 1297

(9th Cir. 1979), but sufficient where they fix the end of the conspiracy and provide an approximate

start date, see United States v. Hultgren, 

, 89 (5th Cir. 1983); United States v. Simmons,

No. 96-4196, 

, at *1, 

, at *3–4 (7th Cir. Apr. 27,

1998); United States v. Mitchell, 

, 133 (10th Cir. 1985). And this court has observed

that conspiracy indictments typically charge “others known and unknown to the grand jury;” such

language does not render an indictment unconstitutionally vague. See United States v. Pingleton,

216 Fed. App’x 526, 529 (6th Cir. 2007).


       Vassar’s remaining challenges to the indictment also lack merit. See United States v. Barnes,

No. 90-5165, 

, at *5, 

, at *14 (6th Cir. Jan. 10, 1991)

(indictment need not specify that defendant “knowingly” committed offense because “[i]t is well

settled that an indictment for conspiring to commit an offense need not allege with technical

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No. 07-5299
United States v. Vassar


precision all the elements essential to the commission of the offense which is the object of the

conspiracy”) (citing United States v. Reynolds, 

, 494 (6th Cir. 1985) (internal citation

and quotation marks omitted)). The district court therefore correctly denied Vassar’s motion to

dismiss Count 1.


B. Sufficiency of the Evidence


       Next, Vassar argues that the evidence does not suffice to sustain his conviction for conspiracy

to distribute cocaine. This challenge fails if, “after viewing the evidence in the light most favorable

to the prosecution, any rational trier of fact could have found the essential elements of the crime

beyond a reasonable doubt.” Jackson v. Virginia, 

, 319 (1979). To prove a conspiracy

under 21 U.S.C. § 846, the government must demonstrate “(1) an agreement to violate drug laws .

. . ; (2) knowledge and intent to join the conspiracy; and (3) participation in the conspiracy.” United

States v. Martinez, 

, 330 (6th Cir. 2005). The agreement need not be formal; a “tacit

or material understanding among the parties” is enough. 

States v. Avery, 

, 970–71 (6th Cir. 1997) (internal quotation marks and citation omitted)).


       Numerous witnesses testified to Vassar’s participation in the conspiracy. Stacy Lynn Phillips

and Dewey Lynn Phillips said that they sold multiple-kilogram quantities of cocaine to Vassar from

2003 through the summer of 2005. According to Stacy Phillips, up until late summer or early fall

2003, Vassar bought a kilogram of cocaine from him every few weeks and claimed to be reselling

it. Dewey Phillips testified that between January 2004 and mid-summer 2005, he sold Vassar an

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No. 07-5299
United States v. Vassar


average of one kilogram per month, and that Michael Gunter told Dewey that he bought cocaine

from Vassar. Daniel Rice stated that he purchased over two kilograms of cocaine, partially for

resale, from Vassar between May 2004 and January 2005. Melissa Thomas witnessed Vassar

distributing what appeared to be cocaine at a local bar. Finally, Rick Fann testified that Vassar sold

him cocaine beginning in early 2005. The evidence sufficiently supports Vassar’s conspiracy

conviction.


       Despite all this testimony, Vassar urges us to vacate his conspiracy conviction because the

jury “most likely” based its finding of guilt on the recorded sale of 6.61 grams of cocaine to Fann,

who was cooperating with the government. Vassar correctly observes that an agreement with a

government agent cannot constitute an unlawful conspiracy. See United States v. Pennell, 

, 536 (6th Cir. 1984). In support of his argument, he notes that Count 3 involved a transfer of

cocaine to Fann, and that the jury convicted him of conspiring to distribute less than 500 grams of

cocaine, even though the evidence of the conspiracy involving the Phillipses and others indicated

more than 500 grams of cocaine. Vassar relies on Yates v. United States, 

(1957), for

the proposition that the law “requires a verdict to be set aside in cases where the verdict is

supportable on one ground, but not on another, and it is impossible to tell which ground the jury

selected.” 

       Yates does not support Vassar’s claim. In Yates, the jury instructions included a “theory of

conviction . . . [that was] contrary to law.” Griffin v. United States, 

, 59 (1991); see


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No. 07-5299
United States v. Vassar

. Here, by contrast, the indictment and Judge Greer’s instructions accurately

stated the law; indeed, Vassar does not contend otherwise. The prosecutor, as Vassar concedes,

described the conspiracy to the jury as involving Stacy and Dewey Phillips selling Vassar cocaine

that he then sold to others, and the evidence supports the conviction for this conspiracy. See United

States v. Newton, 

, 636–37 (6th Cir. 2004) (upholding defendant’s conspiracy

conviction despite testimony of government agent because evidence sufficed to show conspiracy

between defendant and other non-cooperating coconspirators).


       Additionally, contrary to Vassar’s assertion, it does not follow from his acquittal for

conspiracy involving more than 500 grams that the jury “rejected the Phillips conspiracy.” The jury

may have found beyond a reasonable doubt Vassar’s participation in the conspiracy with the

Phillipses, but remained unconvinced that the conspiracy involved over 500 grams of cocaine. See

United States v. Jackson, 

, 669–70 (6th Cir. 2007) (evidence sufficiently supported

conviction involving less than 50 grams of cocaine, even though witnesses testified to more than 50

grams, because “[t]he jury might have concluded that each of the government’s witnesses was

somewhat—but only somewhat—credible, and discounted the testimony accordingly”). We

therefore reject Vassar’s sufficiency-of-the-evidence argument.


C. Bill of Particulars


       Vassar also challenges the adequacy of the bill of particulars. In his motion before the trial

court, Vassar requested (among other things) disclosure of the name and address of each known but

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United States v. Vassar


unnamed co-conspirator, the date he joined the conspiracy, and the date and place of each of his acts

in furtherance of the conspiracy. The magistrate judge ordered a BOP on the meaning of the phrase

“on or before January 1, 2004” in Count 1, but otherwise denied Vassar’s motion. Vassar asserts

that the court erred; we disagree. We review for an abuse of discretion. United States v. Crayton,

, 568 (6th Cir. 2004).


        A bill of particulars is “a tool to minimize surprise and assist [the] defendant in obtaining the

information needed to prepare a defense and to preclude a second prosecution for the same crimes.

It is not meant as a tool . . . to obtain detailed disclosure of all evidence held by the government

before trial.” United States v. Salisbury, 

, 1375 (6th Cir. 1993). In challenging the

district court’s denial of a motion for a bill of particulars, “the defendant must show not only that

the court abused its discretion, but that defendant actually suffered surprise or other prejudice at

trial.” 

        First, Vassar argues that the district court erred by failing to grant his motion with respect to

the identities of unnamed coconspirators in the indictment. He claims that this deficiency prevents

him from “plead[ing] former jeopardy if charged again . . . with an unnamed co-conspirator.” But

the government “is not required to furnish the name[s] of all other co-conspirators in a bill of

particulars.” 

. And to the extent Vassar argues he was surprised by the

government’s use of any other alleged coconspirators as witnesses, the inclusion of “others known

and unknown” in the indictment provided Vassar with sufficient notice. 

07-5299
United States v. Vassar


       Second, he argues the government’s statement regarding the dates of the conspiracy in the

bill of particulars to be insufficient. The bill of particulars explained that the phrase “on or before

January 1, 2004” “simply reflects that the exact date the conspiracy arose was unknown to the

government and the grand jury although the conspiracy was clearly in existence since on or about

January 2004.” The bill further clarifies that the conspiracy began after April 18, 2002. Vassar

complains that this statement mislead him because it deprived him of notice that the prosecution

would present Stacy Phillips as a witness testifying to a conspiracy in 2003.


       Vassar fails to show that the government inadequately responded to the magistrate judge’s

order. The bill of particulars accounted for the “on or before” phrasing, and further limited the

conspiracy to after April 18, 2002. And as we explained, an indictment that is open-ended as to

beginning dates but not end dates suffices. See, e.g., 

. Vassar cannot use

a bill of particulars “to obtain detailed disclosure of all evidence held by the government before

trial.” 

.


       Even assuming the government’s bill of particulars was inadequate, any error was harmless.

See United States v. Williams, 

, 1226 (6th Cir. 1992) (conducting harmless error

review where government allegedly failed to comply with bill of particulars order). Vassar asserts

he had no notice that the government would present Stacy Phillips as a witness testifying to a 2003

conspiracy, but the record reveals the contrary. Vassar identified Stacy Phillips as a coconspirator




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United States v. Vassar


cooperating with the government in his motion for subpoenas, dated February 1, 2006. The district

court did not err.


D. Motion to Question the Jury Foreman


        Vassar next argues that the district court erred by denying his request to question the jury

foreman about the basis of the conspiracy verdict. He claims that the jury may have based its

decision on Vassar’s transaction with Fann, and that the trial judge’s refusal to question the jury

therefore violated his right to a complete defense. We review for an abuse of discretion. United

States v. Corrado, 

, 603 (6th Cir. 2002).


        We think that Judge Greer correctly concluded that Federal Rule of Evidence 606(b) barred

him from granting Vassar’s motion. Rule 606(b) prohibits jurors from testifying:


        as to any matter or statement occurring during the course of the jury’s deliberations
        or to the effect of anything upon that or any other juror’s mind or emotions as
        influencing the juror to assent to or dissent from the verdict or indictment or
        concerning the juror’s mental processes in connection therewith.


See also United States v. Tines, 

, 898 (6th Cir. 1995) (“A jury’s interpretation and

application of the court’s instructions is a part of the deliberative process . . . correctly excluded

under Rule 606(b).”). For policy reasons, courts disfavor interrogations into the jury process. See,

e.g., United States v. Logan, 

, 379 (6th Cir. 2001). Rule 606(b) permits a juror to testify




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United States v. Vassar


about prejudicial information or outside influence “improperly brought to the jury’s attention,” but

Vassar made no such showing here. The district court properly denied Vassar’s motion.


E. Admission of Coconspirator’s Statements


        Vassar claims that the district court erred by allowing Dewey Phillips to testify about

statements made by co-defendant Michael Gunter. The district court allowed the testimony pursuant

to Federal Rule of Evidence 801(d)(2)(E), which provides that: “[a] statement is not hearsay if . .

. [it] is offered against a party and is . . . a statement by a coconspirator of a party during the course

and in furtherance of the conspiracy.” To properly admit such statements, “it must first be

determined that the conspiracy existed, that the defendant was a member of the conspiracy, and that

the co-conspirator’s statements were made ‘in furtherance of the conspiracy.’” United States v.

Gessa, 

, 1261 (6th Cir. 1992) (en banc) (quoting United States v. Vinson, 

, 152 (6th Cir. 1979)). We review for clear error. 

that Gunter’s statement that Vassar said Gunter might be able to get drugs

from Dewey Phillips was “insufficient to establish a conspiracy,” but he offers no argument. And

as the district court reasoned: “The statement . . . attributed to Mr. Vassar, that Mr. Phillips might

be able to help Mr. Gunter, clearly is an effort to continue the illegal conspiracy; that is, Mr. Phillips

becoming a source of the cocaine rather than Mr. Vassar.” Vassar next argues that there was “not

a scintilla of evidence” of the conspiracy other than Gunter’s statements, violating the rule that “[t]he

contents of the statement . . . are not alone sufficient to establish . . . the existence of the conspiracy

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No. 07-5299
United States v. Vassar


and the participation therein of the declarant and the party against whom the statement is offered.”

Fed. R. Evid. 801(d)(2). Vassar is mistaken that no evidence existed. Stacy Phillips testified that

he obtained kilograms of cocaine for Vassar to distribute, and Dewey Phillips said that he sold

Vassar a kilogram of cocaine monthly in 2004 and 2005, and that he sold a kilogram of cocaine to

Gunter. Such evidence suffices for Rule 801(d)(2) purposes. See United States v. Pierce, 

, 827 (6th Cir. 1995) (observing that the court needs only “some independent, corroborating

evidence” in order to admit the coconspirator’s statements).


       Finally, Vassar contends Dewey Phillips’s testimony that Vassar no longer sold drugs at the

time Phillips spoke with Gunter “defeated [his] being a member of [the] alleged conspiracy,”

rendering Gunter’s statements inadmissible. See Fed. R. Evid. 801(d)(2)(E) (statement must be

made “during the course . . . of the conspiracy.”). But “[e]ven assuming that [Vassar] was no longer

an active participant in the conspiracy . . . he is nonetheless presumed to be a continuing member,

and is chargeable for the subsequent acts of co-conspirators, so long [as] the conspiracy was ongoing

and [Vassar] did not establish his affirmative withdrawal from the conspiracy.” United States v.

Robinson, 

, 882 (6th Cir. 2004). The district court did not err by admitting Gunter’s

out-of-court statements.


F. Admission of Fann’s Recorded Statement


       Citing Crawford v. Washington, 

(2004), Vassar next argues that the district court

violated his Sixth Amendment Confrontation Clause rights by admitting a recorded hearsay

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United States v. Vassar


statement made by Rick Fann. But a statement is hearsay only if offered to prove the truth of the

matter asserted. See Fed. R. Evid. 801(c). In the recording at issue, Fann leaves a voicemail for

“Mike” stating that he is looking to obtain a couple of car windows. At trial, Fann testified that he

and Vassar spoke in code about drug transactions, using car parts to represent cocaine. The

recording thus demonstrated that Fann made statements to Vassar about cars—it was not submitted

to prove the truth of Fann’s statements. Indeed, the government acknowledged that Fann’s statement

was “on its face false.” The admission of Fann’s voicemail message therefore did not implicate

Vassar’s Confrontation Clause rights. See Tennessee v. Street, 

, 414 (1985) (“The

nonhearsay aspect [of an out-of-court statement] . . . raises no Confrontation Clause concerns.”).


G. Rule 17(c) Subpoenas


        Vassar faults the district court for quashing a host of subpoenas he issued under the ostensible

authority of Federal Rule of Criminal Procedure Rule 17(c). A party may use Rule 17(c) subpoenas

to obtain documents if (1) the items are evidentiary and relevant; (2) the items are not otherwise

procurable through due diligence prior to trial; (3) the party cannot properly prepare for trial without

such pre-trial production and inspection; and (4) the application is made in good faith and is not a

fishing expedition. United States v. Nixon, 

, 699 (1974). But such subpoenas are not

intended to provide a means of discovery for criminal cases, United States v. Justice, 14 F. App’x

426, 432 (6th Cir. 2001), and the decision to enforce or quash a pretrial subpoena under Rule 17(c)

rests with the district court and will be disturbed on appeal only where the action was clearly


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No. 07-5299
United States v. Vassar


arbitrary or without support in the record. United States v. Hughes, 

, 1145 (6th Cir.

1990).


         Vassar’s subpoenas sought records, documents, and computer data from various law

enforcement agencies concerning the criminal activities of eight potential witnesses against him.

After reviewing the subpoenas’ content, the district court held that they failed to satisfy the requisite

criteria, largely because they sought internal investigative files and general impeachment evidence,

neither of which is a proper subject for a Rule 17(c) subpoena. See United States v. Cuthbertson,

, 192 (3d Cir. 1981) (inadmissible hearsay materials not subject to Rule 17(c)

subpoena); 

(“the need for evidence to impeach witnesses is insufficient to

require its production in advance of trial.”). At the same time, however, the district court ordered

production of certain documents and clarified that it placed no restrictions on Vassar’s use of

compulsory process to obtain witnesses or documents for presentation at trial (and, in fact, Vassar

later availed himself of this opportunity). On appeal, Vassar identifies no error in the district court’s

analysis. Because the court properly limited Vassar’s use of Rule 17(c) subpoenas to prevent him

from embarking upon a costly and time-consuming fishing expedition, we conclude that no abuse

occurred.


H. Prosecutorial Misconduct


         Vassar complains of four statements from the prosecutor’s closing argument, claiming that

each one constitutes prosecutorial misconduct entitling him to a new trial. Only one of the

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No. 07-5299
United States v. Vassar


statements drew an objection. We review that statement for an abuse of discretion, United States

v. Tocco, 

, 420 (6th Cir. 2000), and the others for plain error, United States v.

Emuegbunam, 

, 406 (6th Cir. 2001). A two-step analysis applies to prosecutorial

misconduct claims. First we determine whether the prosecutor’s statements were improper, and

then, if they were, we decide whether the statements were flagrant in light of four factors: (1)

whether they tended to mislead the jury or prejudice the accused; (2) whether they were isolated or

extensive; (3) whether they were deliberately made; and (4) the strength of the evidence against the

defendant. United States v. Jackson, 

, 670 (6th Cir. 2007).


         Vassar suggests that the prosecutor’s references to “other controlled substances” in his

summary of Fann’s testimony was improper because the judge had specifically ordered Fann to refer

only to “another substance” when testifying about the other drug he said he ordered from Vassar, but

this argument misrepresents the record. The district judge instructed Fann to refer to a “controlled

substance” rather than specifically identifying the drug as methamphetamine. The prosecutor’s

statements squared with both Fann’s testimony and the judge’s orders; thus, Vassar’s argument lacks

merit.


         Next, Vassar accuses the prosecutor of committing misconduct by “improperly [telling]

personal stories about his childhood.” The prosecutor urged the jury not to consider the possible

guilt or punishment of others, illustrating his point with a personal anecdote involving his own

attempts as a child to escape punishment for his misconduct by emphasizing his brother’s


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United States v. Vassar


malfeasance. The defense employed a strategy of deflecting attention from Vassar’s conduct toward

that of his coconspirators. The prosecutor responded to this strategy by imploring the jurors not to

consider the guilt of others but to focus on the actions of the accused. In an effort to elucidate this

(entirely proper) argument, the prosecutor used an example from his own past. In doing so, he did

not express any personal opinion as to the defendant’s guilt, nor was the story calculated to inflame

the jury. As such, no impropriety occurred.


       Vassar also protests the prosecutor’s characterization of defense arguments as “red herrings”

and “creative fiction.” This court (like many others) frequently uses the term “red herring” to

describe a fallacious argument that distracts from the truth, see, e.g., United States v. Urrieta, 

, 582 (6th Cir. 2008), and has expressly approved a prosecutor’s use of the same term in

situations similar to this one, United States v. Moreno, 

, 468 (6th Cir. 1990). Likewise,

the prosecutor’s use of “creative fiction” in reference to defense’s contention that an audio recording

somehow evinced Fann and Vassar sniffing cocaine constituted a proper means of suggesting to the

jury that, based upon the evidence presented at trial, the argument was implausible and unworthy of

belief. See United States v. Collins, 

, 1040 (6th Cir. 1996) (“[C]ounsel must be given

leeway to argue reasonable inferences from the evidence.”).


       Finally, during closing argument, the prosecutor remarked that “no one involved in this

narcotics trafficking is going to escape justice.” This drew an objection from Vassar, and on appeal

he challenges this statement as an improper expression of personal opinion. The government rebuts


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United States v. Vassar


Vassar’s argument with two points. First, the record lends some support to the statement—a

government agent had testified about pending charges against Stacy Phillips, one of Vassar’s

coconspirators. Second, the comment should be tolerated because the prosecutor made it in response

to Vassar’s argument that the government permitted more culpable individuals to avoid prosecution

in exchange for testifying against him. See Byrd v. Collins, 

, 535 (6th Cir. 2000) (“Case

law permits comments that are made in response to the argument and strategy of defense counsel.”)

(internal quotation marks and citation omitted). Although we find the government arguments

persuasive, we need not decide this issue. Even if the comment suffers from some impropriety, it

was an isolated remark unlikely to cause prejudice and therefore does not warrant a new trial. See

United States v. Carter, 

, 788 (6th Cir. 2001) (excusing improper comments as mere

isolated remarks). Because all of the statements fall short under the Jackson factors, we reject

Vassar’s claim.


I. Jury Instructions


       This court “review[s] jury instructions as a whole to determine whether they adequately

inform the jury of relevant considerations and provide a sound basis in law to aid the jury in reaching

its decision.” United States v. Layne, 

, 574 (6th Cir. 1999). We review for an abuse of

discretion, and reverse only where the instructions fail to accurately reflect the law or, if “viewed as

a whole, [they] were confusing, misleading, or prejudicial.” United States v. Prince, 

,

761 (6th Cir. 2000) (internal quotation marks and citation omitted).


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        Vassar challenges several of the district court’s instructions. First, he asserts that he “was

entitled to a charge on his theory of defense” for Count 3. Judge Greer instructed the jury that Vassar

denied distributing cocaine “on or about June 16, 2005 as charged,” but Vassar complains that the

judge should have told the jury that Vassar admitted to drug addiction from 2004 to 2005, he used

cocaine on June 16, 2005 with Rick Fann, and his “only offense” was simple possession. The law,

however, does not entitle Vassar to such an instruction. The district court need not use a defendant’s

language in an instruction if its own “is accurate and sufficient.” United States v. Mack, 

, 218 (6th Cir. 1998) (internal quotation marks and citation omitted). Vassar’s proposed

instruction does not constitute a statement of law, but rather represents a denial of the charges and

Vassar’s view of the facts. The district court did not commit reversible error in declining to give this

instruction. 

where instruction is not a statement of law but only an explanation of what

defendant would have stated had he testified); United States v. Chowdhury, 

, 407 (6th

Cir. 1999) (no reversible error where defense’s proposed instruction was not a “distinct legal theory”

but merely “a recitation of [Defendant’s] view of the facts”).


        Second, Vassar claims that the district court erred by refusing to give a “buyer-seller

instruction.” He argues that such instructions are mandatory “when raised by the evidence” and

failure to give the instruction confused the jury “as to the difference between a buyer-seller

relationship and a conspiracy.” Here, the government presented evidence of repeat purchases of

large drug quantities—evidence that supports a finding of a conspiracy, not of a mere buyer-seller

relationship. See United States v. Brown, 

, 373 (6th Cir. 2003). And “a conviction will

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United States v. Vassar


not be reversed for failure to give a buyer-seller instruction where the district court gave complete

instructions on the elements of conspiracy.” United States v. Musick, 291 F. App’x. 706, 730 (6th

Cir. 2008) (citing Riggs v. United States, 

, 833 (6th Cir. 2000)). The district court did

not err in refusing to give this instruction.


        Third, Vassar asserts that the district court should have included the names of the co-

defendants in the court’s jury instruction pertaining to the conspiracy charged in Count 1 of the

indictment. The district court, following both the indictment and pattern instruction, listed the

co-defendants charged in the indictment in its instruction and told the jury that, to return a guilty

verdict, it must find Vassar a member of the conspiracy charged in the indictment. The instruction

accurately stated the law, and Vassar offers no argument to the contrary nor any authority to support

his claim that the district court erred. The district court properly instructed the jury on the conspiracy

count. See 

required to instruct the jury that a conspiracy cannot exist between

defendant and a government agent where “conspiracy involved multiple other persons with whom

it was legally possible for appellant to conspire”).


        Finally, he challenges Judge Greer’s refusal to instruct the jurors on simple possession.

Vassar appears to acknowledge that the district court correctly denied his request with respect to

Count 3, because simple possession is not a lesser-included offense of distribution of a controlled

substance. See United States v. Colon, 

, 376–77 (6th Cir. 2001). Instead, he argues that

the district court erred by refusing this instruction for Count 1. But simple possession also does not


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constitute a lesser-included offense of conspiracy to distribute and possess with intent to distribute

cocaine. See 

Thus, Vassar’s claim lacks merit. We conclude that the district court did

not abuse its discretion in instructing the jury.


                                       III. Vassar’s Sentence


A. Relying on Acquitted Conduct at Sentencing


        Vassar disputes the district court’s decision to find a fact that differed from a jury-found fact.

Specifically, the district court found that he “was involved in the distribution or conspiracy to

distribute between 3.5 to 5 kilos of cocaine,” while the jury found Vassar not guilty of conspiring

to distribute more than 500 grams. According to Vassar, this amounted to sentencing him “for an

incorrect conspiracy offense of conviction” in violation of both the Sixth Amendment and the

principles of issue preclusion. Appellant’s Br. at 65–68. We disagree.


        As for his Sixth Amendment jury-trial right challenge, Vassar fundamentally misunderstands

the meaning of a jury’s acquittal. An acquittal is not a finding of innocence, but merely a negative

statement that the evidence fell short of purging the jury’s reasonable doubts and therefore could not

sustain a conviction. United States v. White, 

, 385 (6th Cir. 2008) (en banc). For Sixth

Amendment purposes, this is the important point: The jury found Vassar guilty of conspiring to

distribute less than 500 grams of cocaine, and that verdict alone exposed Vassar to a maximum

sentence of 30 years’ imprisonment. 21 U.S.C. §§ 841(a)(1) & 846. Although the district court,


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No. 07-5299
United States v. Vassar


in selecting a sentence within the range authorized by the statute of conviction, not only relied on

acquitted conduct but also used a preponderance standard, this does not run afoul of the Sixth

Amendment. The district court neither sentenced Vassar for acquitted conduct nor imposed its

sentence under an incorrect statute of conviction. See 

. Thus, Vassar’s Sixth

Amendment challenge fails.


       Vassar is correct that sentencing courts “cannot rely on a finding that directly conflicts with

the jury’s verdict.” United States v. Cockett, 

, 711 (6th Cir. 2003). But here, given the

differing standards of proof, there is no conflict. Again, the district court found by a preponderance

of the evidence that the conspiracy involved more than 500 grams of cocaine, while the jury found

that the evidence did not overcome its reasonable doubt. These findings do not conflict.


       The differing standards of proof also doom Vassar’s issue-preclusion argument. According

to Vassar, “issue preclusion and collateral estoppel prohibit[ed] Judge Greer from acting as a trier

of fact to find a conspiracy object different from the object found by the jury.”1 This argument is

flawed. Issue preclusion, which bars the relitigation of a previously decided issue, only operates if,

among other requirements, the previously decided issue is “identical” to the current issue. N.L.R.B.

v. Master Slack and/or Master Trousers Corp., 

, 81 (6th Cir. 1985). Here, because the

standards of proof differed, the issue at trial was not identical to the issue at sentencing, and the


       1
        Vassar’s brief wrongly implies a distinction between issue preclusion and collateral estoppel;
those are merely different names for the same doctrine. Dodrill v. Ludt, 

, 443 (6th Cir.
1985).

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No. 07-5299
United States v. Vassar


jury’s acquittal therefore did not preclude the district court’s drug-weight finding.


B. Procedural and Substantive Reasonableness


       Vassar challenges his sentence as procedurally and substantively unreasonable. We begin

with his procedural claims, finding that only one merits discussion. Vassar maintains that

Amendment 709 to § 4A1.2 of the Sentencing Guidelines, issued several months after his sentencing

hearing, retroactively undermines the district court’s criminal history calculation. Not so. The

district court correctly sentenced Vassar under the version of the Guidelines in effect at the time of

sentencing, United States v. Murillo-Iniguez, 

, 714 (6th Cir. 2003), and Amendment

709 does not apply retroactively, United States v. Wood, 

, 88 (3d Cir. 2008); United

States v. Marler, 

, 877 n.1 (9th Cir. 2008); see also United States v. Smith, 307 F.

App’x 966, 969 (6th Cir. 2009) (citing Wood and Marler with approval in dicta).


       Turning to Vassar’s substantive claims, we start by presuming the reasonableness of Vassar’s

below-Guidelines sentence. United States v. Bailey, 264 F. App’x 480, 485 (6th Cir. 2008) (Just as

we presume the reasonableness of a within-Guidelines sentence, “it follows from simple logic that

[a] below-Guidelines sentence . . . is presumed not to be unreasonably severe.”). Vassar fails to

rebut this presumption. He first argues that, compared to his coconspirators’ sentences, his below-

Guidelines sentence reflects an unwarranted disparity in violation of 18 U.S.C. § 3553(a)(6). And

this disparity, so the argument goes, is the product of “prosecutorial misconduct by selective

application manipulating the USSGs.” Appellant’s Br. at 62. We disagree.

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No. 07-5299
United States v. Vassar


       “Disparities between the sentences of coconspirators can exist for valid reasons, such as

differences in criminal histories, the offenses of conviction, or one coconspirator’s decision to plead

guilty and cooperate with the government.” United States v. Conatser, 

, 522 (6th Cir.

2008). Here, an important difference justifies the disparity that Vassar challenges—Vassar’s

coconspirators accepted responsibility for their criminal conduct and cooperated with law

enforcement; Vassar did not. Accounting for that difference—both in the prosecutor’s charging

determinations and in the court’s sentencing decisions—neither evidences prosecutorial misconduct

nor contravenes substantive reasonableness.


       And more generally, because Vassar’s sentence fell below the Guidelines’ recommendation,

his unwarranted disparity claim stands on especially shaky ground. The Seventh Circuit has

observed that “it is pointless” for defendants who receive within-Guidelines sentences to raise

unwarranted-disparity claims. United States v. Shrake, 

, 748 (7th Cir. 2008); see also

United States v. Kirchhof, 

, 416 (6th Cir. 2007). The Guidelines exist to help ensure

that similarly-situated defendants are punished similarly. United States v. Boscarino, 

,

638 (7th Cir. 2006). Thus, “[s]entencing disparities are at their ebb when the Guidelines are

followed. . . . The more out-of-range sentences that judges impose . . . , the more disparity there will

be. A sentence within a properly ascertained range therefore cannot be treated as unreasonable by

reference to § 3553(a)(6).” 

applies with greater force to defendants like Vassar,

who receive a below-Guidelines sentence.



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No. 07-5299
United States v. Vassar


       Vassar nevertheless insists, despite the absence of supporting evidence, that prosecutors

“secretly manipulated” his coconspirators’ sentences. Even if that allegation were true—Vassar

offers nothing suggesting it is—it would not change our review here, which concerns only Vassar’s

sentence. The district court, addressing Vassar’s prosecutorial misconduct and unwarranted disparity

claims at the sentencing hearing, clearly articulated the flaw in Vassar’s position:


       Your attorney . . . doesn’t argue that somehow the government has made your
       sentence potentially higher through its charging decisions; he argues that the
       government has made others’ sentences lower than the real conduct justified. I
       frankly don’t see how you or any defendant in your situation can legitimately
       complain that somebody else has gotten a lesser sentence. To the extent that the
       government’s charging decisions or plea bargaining decisions result in disparities, it
       seems to me that is up to the congress to address or the public to address; and that to
       [grant a larger downward variance in this case] would simply require this court to
       lower all sentences down to the level of the most lenient sentence that’s been
       imposed. I don’t think that’s what the law requires . . . and I reject that as a
       legitimate consideration in sentence.




Sentencing Tr. 173–74. We agree with the district court. That his coconspirators may have received

lesser sentences does not by itself prove that Vassar’s sentence is unreasonably severe, but is just as

likely to show that his coconspirators were sentenced too leniently. And accepting Vassar’s position

would create a race to the bottom in sentencing, forcing district courts to select increasingly lenient

sentences.


       Vassar also attacks his sentence’s substantive reasonableness on the ground that, in his

estimation, his conduct does not qualify as a “per se a serious offense,” but instead amounts to

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No. 07-5299
United States v. Vassar


nothing more than a “casual exchange of drugs.” This characterization belittles the seriousness of

Vassar’s actions and belies the record in this case, which supports the district court’s finding that

Vassar trafficked at least 3.5 kilos of cocaine. Sentencing Tr. at 171. Vassar’s 144-month sentence,

which is well below the Guidelines range of 168 to 210 months, already includes a large downward

variance, and he fails to show that his situation is so extraordinary as to require an even larger

variance. We reject Vassar’s substantive reasonableness challenges.


C. Discovery at Sentencing


       Vassar takes issue with the district court’s decision denying him discovery for sentencing

purposes. Appellant’s Br. at 72–73. Vassar does not, however, specify the information he would

have sought in discovery. Nor does he explain how the publically available sources of information

proved inadequate for his purposes, a defect that other circuit courts have relied on in affirming

denials of sentencing discovery. See, e.g., United States v. Spotted Elk, 

, 672 (8th Cir.

2008) (affirming decision denying defendant access to his coconspirators’ PSRs). Vassar merely

maintains that Federal Rule of Criminal Procedure 32(i)(4)(ii) and U.S.S.G. § 6.A1.3 support his

discovery requests. We read those rules more narrowly.


       Rule 32(i)(4)(ii), rather than providing a broad right to discovery, only requires a sentencing

court “to address the defendant personally in order to permit the defendant to speak or present any

information to mitigate the sentence.” The rule, in other words, allows defendants to present the

information they have.

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No. 07-5299
United States v. Vassar


       Nor does U.S.S.G. § 6.A1.3 aid Vassar. That Guideline tells us, among other points, that

“[w]hen any factor important to the sentencing determination is reasonably in dispute, the parties

shall be given an adequate opportunity to present information to the court regarding that factor.” 

6.A1.3 mentions nothing concerning discovery.


       In the absence of express statutory authority, and without explicit guidance from the

Sentencing Commission, we leave the matter of sentencing discovery to the district court’s sound

discretion. And because we discern no abuse of discretion here, we reject Vassar’s discovery

arguments.


       Vassar makes a related argument that U.S.S.G. § 6.A1.3 somehow constrains the timing of

sentencing hearings. More specifically, he says that the district court erred by “set[ting] Vassar’s

sentencing after co-conspirators who were not asserting §3553(a)(1)(6) disparity, [thereby failing]

to provide Vassar an adequate opportunity to present relevant information.” Appellant’s Br. at

73–74 (internal quotation marks omitted). Vassar again runs roughshod over the actual language of

U.S.S.G. § 6.A1.3, which says nothing about scheduling sentencing hearings.


       Vassar raises other arguments challenging his conviction and sentence. We have considered

those arguments and view them as lacking.


       AFFIRMED.




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