NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                           File Name: 11a0554n.06

                                           No. 09-6091                                     FILED
                                                                                      Aug 09, 2011
                          UNITED STATES COURT OF APPEALS
                               FOR THE SIXTH CIRCUIT                             LEONARD GREEN, Clerk

UNITED STATES OF AMERICA,           )
                                    )
            Plaintiff-Appellee,     )                 ON APPEAL FROM THE UNITED
                                    )                 STATES DISTRICT COURT FOR THE
                                    )                 EASTERN DISTRICT OF KENTUCKY
v.                                  )
                                    )
                                    )                                OPINION
ROY LACY COBB,                      )
                                    )
            Defendant-Appellant.    )
____________________________________)

Before: MOORE and GIBBONS, Circuit Judges; BORMAN, District Judge.*

       PAUL D. BORMAN, District Judge.                Roy Lacy Cobb was indicted by a grand jury

in the Eastern District of Kentucky in a second superseding indictment on January 22, 2009, charging

eleven (11) counts of knowingly and intentionally distributing oxycodone, a Schedule II controlled

substance, to a number of different individuals over a three-year period, in violation of 21 U.S.C. §

841(a)(1). The indictment also charged Cobb with two (2) counts of knowingly and intentionally

distributing oxycodone to individuals under the age of twenty-one, in violation of 21 U.S.C. §

841(a)(1) and § 859(a). The indictment further charged Cobb with money laundering in violation

of 18 U.S.C. § 1956(a)(1)(B) (i), and sought forfeiture pursuant to 21 U.S.C. § 853 and 18 U.S.C.




*The Honorable Paul D. Borman, United States District Judge for the Eastern District of Michigan,
sitting by designation.

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No. 09-6091
United States v. Cobb

§ 982(a)(1). On January 29, 2009, Cobb pleaded not guilty to the 16 counts in the second

superseding indictment. Just prior to trial, the Government moved to dismiss six counts of the

indictment: 6,7,9,14,15 and 16.

        Cobb’s trial began on February 17, 2009 and on February 20, 2009, following four days of

trial, and two hours of deliberation, the jury returned a verdict of guilty on all ten remaining counts.

The District Court held a sentencing hearing on August 26, 2009 and sentenced Cobb to 240 months

imprisonment on each of Counts One, Three, Five, Eight and Ten through Thirteen, and a term of

300 months imprisonment on each of Counts Two and Four, to be served concurrently for a total

term of 300 months. The District Court applied an upward departure for multiple sexual acts against

ten or more individuals, and a two-level enhancement for possession of a firearm in connection with

a drug transaction. Cobb was further sentenced to six (6) years of supervised release.

        Cobb now appeals his conviction alleging three grounds for reversal: (1) that the District

Court abused its discretion in admitting a photograph of the Defendant receiving oral sex from one

of the Government’s witnesses; (2) that the District Court abused its discretion in concluding that

one of the Government’s witnesses was competent to testify; and (3) that the District Court erred in

assessing a two-level enhancement for possessing a weapon deemed available for use in connection

with a drug transaction. For the reasons that follow, we AFFIRM the conviction and sentence.

I.      BACKGROUND

        A.      The Charges Against Cobb

        On September 23, 2008, the Government filed a Criminal Complaint in the Eastern District

of Kentucky against Cobb, charging him with knowingly or intentionally distributing oxycodone,

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United States v. Cobb

a Schedule II controlled substance, in violation of 21 U.S.C. § 841(a)(1) from on or about June, 2005

through June, 2008. On September 24, 2008 a grand jury returned a one-count indictment, charging

Cobb with a violation of 21 U.S.C. § 841(a)(1). On November 20, 2008, the grand jury returned a

four-count superseding indictment, repeating the charge contained in the original indictment and

adding one count of money laundering and two counts of forfeiture. On January 22, 2009, the grand

jury returned a sixteen-count second superseding indictment relating to conduct that occurred

between June, 2005 and September, 2008, charging eleven separate counts of knowingly and

intentionally distributing oxycodone to unnamed individuals in violation of 21 U.S.C. § 841(a)

(Counts 1, 3, 5 through 13), two counts of knowingly and intentionally distributing oxycodone to two

unnamed individuals under the age of twenty-one in violation of 21 U.S.C. § 859(a) (Counts 2 and

4), one count of money laundering (Count 14), and two counts of forfeiture (15 and 16.) The

statutory penalties for Counts 1, 3, 5-13 were not more than 20 years imprisonment, $1,000,000 fine

and at least 3 years supervised release (increased to 30 years imprisonment, $2,000,000 fine and at

least 6 years supervised release if a prior felony drug conviction is involved). The penalties for

Counts 2 and 4 were not less than 1 year and not more than 40 years imprisonment, $2,000,000 fine

and at least 6 years of supervised release (increased to not less than 1 year and not more than 60

years imprisonment, $3,000,000 fine and at least 9 years supervised release if a prior conviction

under these sections is involved). The penalties for Count 14 were not more than 5 years

imprisonment, $250,000 fine and 3 years supervised release. The Penalties for Counts 15 and 16

were forfeiture of the listed property. Cobb, who had been in custody since September 23, 2008, was



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United States v. Cobb

arraigned on January 29, 2009, and entered not guilty pleas on all counts and was returned to the

custody of the United States Marshals.

          B.     The Trial and Verdict

          The jury trial began on February 17, 2009. The first morning of trial, the Government moved

to dismiss Counts 6, 7, 9, 14, 15 and 16 of the second superseding indictment, explaining that:

“Despite the better efforts of law enforcement, we’ve been unable to find a couple of our witnesses,

and, therefore, we will move to dismiss, it looks like six counts of the indictment.” (R. 94,

Transcript of Trial February 17, 2009 (“TT1”) 4-5.)1 The trial proceeded on the remaining ten

counts.

          The Government’s first witness was M.C., the Defendant’s twenty-two year old daughter.

M.C. testified that she moved back into her parents’ home sometime in the Spring or Summer of

2006 and that some months after that she first began taking oxycontin pills.2 She testified that she

received her first oxycontin pill, and several thereafter, from her father, the Defendant. She testified

that he gave her the pills at first “for [her] silence, so that [she] didn’t tell [her] mother about what

[she had] seen,” referring to sexual encounters she had observed between her father and other

“girls.” (R. 94, TT1, M.C. 204-08.) M.C. testified that at the time she received her first oxycontin

pill from her father, he also gave a pill to D.A. and that she and D.A. went into a bedroom and


1
Unless otherwise indicated, the reference (R._) indicates the Docket Entry Number on the District
Court Docket.
2
 The oxycontin pills described by the various witnesses contained varying amounts of oxycodone,
a Schedule II controlled substance. The witnesses ingested the drugs through different methods,
either swallowing, snorting and/or injecting the pills in a solution intravenously.

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No. 09-6091
United States v. Cobb

“took” their pills - M.C. snorted hers and D.A. injected hers. M.C. testified that her father began to

give her a pill a day thereafter.

        M.C. identified multiple women, most in their twenties, whom she had personally observed

at her parents’ home receiving oxycontin pills from her father and whom she had perceived to be

engaging in various sexual acts with her father in connection with receiving the pills. M.C. also

testified that she observed her father take pictures with his cell phone of the bare breasts of various

women who were visiting the Defendant’s home, to whom her father then gave oxycontin pills. She

identified her father’s cell phone, which was introduced by the Government at trial.

        M.C. testified that she received her last oxycontin pill from her father on March 17, 2008,

the night before she was arrested for robbing a pharmacy and stealing 8,000 oxycontin pills. She

testified that she pleaded guilty to the robbery offense, for which she remained imprisoned at the

time of his trial, and that in connection with her guilty plea, she provided information to the

Government about her father’s activities. She testified at trial that she agreed to give testimony in

support of the Government’s case against her father with the potential, but not the promise, that she

could receive credit against her sentence for her truthful testimony.

        Richard Dalrymple was a Laurel County Sheriff’s Office detective who was working with

the Drug Enforcement Administration Task Force in connection with the investigation into M.C.’s

robbery of the Rite-Aid Pharmacy and theft of the 8,000 oxycontin pills. Officer Dalrymple testified

that he interviewed M.C. in connection with his investigation of the robbery after M.C.’s attorney

reached out to him with a potential proffer interview that M.C. was willing to give to the

Government. Officer Dalrymple testified that during his interview with M.C., she explained to him

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No. 09-6091
United States v. Cobb

that she had received her first oxcycontin pill from her father, and she told him that “numerous

younger females” came to her home to receive oxycontin pills from her father in exchange for sexual

favors. Officer Dalrymple testified that M.C. identified several of those individuals, some only by

first name, and from that information he initiated his investigation into the Defendant’s activities.

       Based on the information received in the course of his investigation and interviews with

numerous women who corroborated the information conveyed in M.C.’s proffer interview, Officer

Dalrymple obtained a search warrant for the Defendant’s home which was executed on June 27,

2008, in the presence of the Defendant. The search uncovered 31 empty pill bottles, each bearing

a written prescription for the Defendant for oxycontin or oxycodone. The officers also seized the

Defendant’s cell phone from his pants pocket during the search of his home. The Government

introduced the Defendant’s cell phone into evidence through Dalrymple’s testimony, over an

objection from Defendant’s counsel, who admitted in colloquy that he knew the Government was

planning to move to admit the cell phone and its contents and conceded that he had not previously

objected to admission of the cell phone or its contents through a motion to suppress or otherwise.

Officer Dalrymple also obtained a warrant and executed a search of the Defendant’s trailer/camper,

located in a neighboring county in Kentucky, and seized additional empty prescription bottles and

two firearms, a revolver and a rifle, with ammunition.

       Many of the women interviewed by Officer Dalrymple and identified by M.C. at trial,

testified at trial and confirmed M.C.’s testimony that they received oxycontin pills from the

Defendant in exchange for various sexual favors which they performed for the Defendant -- showing

their bare breasts, performing oral sex, having sexual intercourse with the Defendant, or having sex

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No. 09-6091
United States v. Cobb

with other women for the Defendant’s viewing pleasure. S.D. testified that she received over 100

oxycontin pills from the Defendant, never more than one or two on any given day, in exchange for

performing oral sex or having sexual intercourse with the Defendant. S.D. testified that she was

eighteen at the time she first met the Defendant (who was then in his fifties) and was that day given

her first oxycontin pill. She testified that she would not have had sex with the Defendant had it not

been for the fact that he had something she wanted - oxycontin. S.D. ultimately had the Defendant’s

child. Paternity was established by a DNA test performed in the course of a custody battle.

       S.D. introduced her sister, R.D., to the Defendant in July, 2005. R.D. was 20 years-old at the

time she met the Defendant (who was then 55 years-old) and testified at trial that she had to show

him her bare breasts that day in exchange for an oxycontin pill. R.D. testified that she received an

oxycontin pill approximately every other day thereafter and in exchange would have to perform oral

sex on the Defendant, have intercourse with him, or have sex with other girls in front of him. R.D.

also identified the Defendant’s cell phone, which she testified he used to take pictures of her and

other women naked. She identified pictures of herself and another woman, F.F., which were taken

from the Defendant’s cell phone. Several other women testified to a similar pattern of receiving

oxycontin pills from the Defendant in exchange for sexual favors and identified pictures of their bare

breasts that appeared on his cell phone.

       T.M. testified that she received oxycontin pills from the Defendant and had to have oral sex

with the Defendant in exchange for the pills. On one occasion, T.M. testified, the Defendant told

her to have sex with a “neighbor boy” and gave her oxycontin when she complied with his request.

T.M. testified that she had once traded a stolen gun to the Defendant in exchange for oxycontin.

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No. 09-6091
United States v. Cobb

        In the course of her testimony, L.G. identified a picture of herself, taken from the Defendant’s

cell phone, showing her bare breasts. The photograph was introduced without objection. L.G.

identified a second picture of herself, also taken from the Defendant’s cell phone, performing oral

sex on the Defendant. The photograph was introduced over defense counsel’s objection on the

grounds of the photograph’s prejudicial effect.

        The Government also introduced the testimony of D.A., whose trial testimony often

contradicted statements that she had previously made to Officer Dalrymple in the course of his

investigation, which prompted counsel for the Government to request permission to examine D.A.

as a hostile witness. The Government, at the time of trial, was fearful that D.A. was acting “flighty”

and might in fact fail to appear as subpoenaed. In response to the Government’s concerns, the

District Court examined the witness outside the presence of the jury to ensure that she understood

the oath, that she understood her right not to testify against her own interests and that she was not

feeling the effects of drugs or alcohol at the time of her testimony. Neither trial counsel objected to

this process, or to the District Court’s decision to permit D.A. to testify in the presence of the jury.

        D.A. testified that she had no recollection of ever having performed oral sex on the

Defendant and that he had only given her oxycontin pills twice, when she was “sick.” This

testimony contradicted statements contained in the Presentence Report (“PSR”) that she allegedly

made to Officer Dalrymple in the course of his interview with D.A. The PSR indicates that D.A.

stated that when she realized that flirting with the Defendant was not going to get her oxycontin, she

began performing oral sex on him for pills and did so “dozens” of times. The PSR also indicates that

D.A. told Officer Dalrymple that she had been threatened by the Defendant’s family.

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No. 09-6091
United States v. Cobb

       At the close of the Government’s case, the Defendant moved for a judgment of acquittal,

which the District Court denied. The defense presented three witnesses; Defendant did not testify

on his own behalf. The jury deliberated for two hours and returned a verdict of guilty on all counts.

       C.      Sentencing

       The District Court conducted a Sentencing Hearing on August 26, 2009, during which the

Court ruled on a number of Defendant’s objections to the PSR. The Defendant’s objections were

based principally on his contention that under the holding of the Supreme Court in Apprendi v. New

Jersey, 

(2000), the jury was required to determine beyond a reasonable doubt the

specific weights of the oxycodone he was alleged to have distributed, and that its failure to determine

beyond a reasonable doubt that he had engaged in sexual conduct of a victimizing nature, precluded

any enhancements or departures in sentencing based on those facts. The District Court rejected the

Apprendi challenge, noting that the recommended sentence was well below the statutory maximum

and ruling that “Apprendi correctly applied does not require those facts to be proved beyond a

reasonable doubt.” (R. 98, Sent. Hr’g Tr. 38-40, 49-52.) The Defendant does not raise the Apprendi

issue on appeal.3



3
 On February 15, 2011, the Defendant filed a motion in this Court for an extension of time and to
hold this matter in abeyance to permit him to file a supplemental pro se brief on appeal, in which he
proposed to raise the Apprendi claim along with several claims of ineffective assistance of counsel.
The Clerk of this Court denied the motion to file a supplemental brief pursuant to Rule 45(a) of the
Rules of the Sixth Circuit. No motion for reconsideration of the Clerk’s Order was filed pursuant
to Sixth Circuit Rule 45(b). (Ct. of Appeals Case No. 09-6091, Feb. 15, 2011 Motion; March 1,
2011 Order.) Thus, those claims are not properly before us and this matter is decided on the briefs
submitted by Defendant’s counsel. United States v. Strickland, 342 F. App’x 103, 106 (6th Cir.
2009).

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No. 09-6091
United States v. Cobb

       The Defendant also objected at the Sentencing Hearing to the recommended two-point

enhancement, under United States Sentencing Guideline 2D1.1(b)(1), for possession of a firearm

deemed available for use in connection with a drug transaction. The Defendant argued that, apart

from the testimony of one witness, no evidence was presented that he ever possessed a gun. The

District Court ruled that the testimony of T.M. that on one occasion she traded the Defendant a

firearm for oxycodone, along with the evidence presented that guns were observed by several

witnesses when oxycontin was being distributed in the Defendant’s camper/trailer, was sufficient

to support the two-level enhancement under 2D1.1(b)(1). The Defendant does challenge this ruling

on appeal.

       The District Judge determined that the correct Guideline range was 210-260 months. (R. 98,

Sent. Hr’g Tr. 100.) The District Judge permitted the Defendant to allocute extensively at his

sentencing. Defendant’s other daughter, C.C., testified on her father’s behalf at the Sentencing

Hearing. The District Judge then discussed the factors required to be taken into account under 18

U.S.C. § 3553(a). The District Judge concluded that aggravating factors existed that were not

adequately taken into account by the Sentencing Commission in formulating the Guidelines which

supported an upward departure. The District Judge imposed a sentence of 240 months imprisonment

on Counts 1, 3, 5, 8 and 10-13, and a sentence of 300 months imprisonment on Counts 2 and 4, to

be served concurrently for a total term of imprisonment of 300 months, imposing an upward

departure for multiple sexual offenses against at least ten individuals, and applying a two-level

enhancement for possession of a firearm in connection with a drug transaction and also imposing

numerous conditions of supervised release. (R. 98, Sent. Hr’g Tr. 105-12.)

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No. 09-6091
United States v. Cobb

       The Defendant filed his appeal papers at the Sentencing Hearing and requested that he be

appointed new counsel for his appeal. On September 16, 2009, Defendant’s trial counsel filed a

motion to withdraw in this Court. On that same day, this Court granted Mr. Gordon’s motion,

indicating that it would appoint new counsel for the Defendant under the Criminal Justice Act. On

November 18, 2009, this Court appointed appellate counsel.4

II.    ANALYSIS

       A.      Standard of Review

       “A district court's evidentiary rulings are reviewed for abuse of discretion.” United States v.

Dixon, 

, 544 (6th Cir. 2005) (citing United States v. Wagner, 

, 616 (6th

Cir. 2004)). “An abuse of discretion occurs when a district court relies on clearly erroneous findings

of fact, improperly applies the law or uses an erroneous legal standard.” 

v.

Allstate Ins. Co., 

, 615 (6th Cir.1995)). “In reviewing a trial court's evidentiary

determinations, this court reviews de novo the court's conclusions of law and reviews for clear error

the court's factual determinations that underpin its legal conclusions.” United States v. Baker, 

, 516 (6th Cir. 2006) (internal quotation marks and citations omitted). “Broad discretion is

given to district courts in determinations of admissibility based on considerations of relevance and


4
 The Court notes that in his February 15, 2011 motion for extension of time and to file a
supplemental pro se brief in this Court, the Defendant expressed great dissatisfaction with both trial
and appellate counsel. On December 16, 2009, in response to an earlier-filed letter in which the
Defendant complained about his counsel, the Clerk of this Court informed the Defendant by letter
that the Court is unable to intervene between a party and his appointed counsel. Appellate counsel
has never withdrawn as Defendant’s counsel and continues to represent the Defendant in this appeal.
Issues of ineffective assistance of counsel, both trial and appellate, are properly raised, after this
direct appeal, in a timely-filed motion in the trial court under 28 U.S.C. § 2255.

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No. 09-6091
United States v. Cobb

prejudice, and those decisions will not be lightly overruled.” United States v. Chambers, 

, 455 (6th Cir. 2006) (quoting 

).

       Sentences in a criminal case are reviewed for procedural and substantive reasonableness.

Gall v. United States, 

, 51 (2007). Such review is conducted under the deferential abuse

of discretion standard. United States v. Novales, 

, 314 (6th Cir. 2009). Substantive

reasonableness claims need not be raised before the district court to be preserved for appeal. United

States v. Penson, 

, 337 (6th Cir. 2008).

       B.      The District Court Did Not Err In Admitting Into Evidence the Photograph of
               L.G. Performing Oral Sex on the Defendant

       During the trial, the District Court permitted the jury to view four photographs that were

retrieved from the Defendant’s cell phone, burned onto a CD and reprinted for viewing at trial.5


5
 The defense never objected to the search warrant execution that resulted in the seizure of the
Defendant’s cell phone and never moved to suppress the cell phone or its contents. During colloquy
with the District Court and the Government concerning the jury viewing the photographs, counsel
for the Defendant did not question the authenticity of the photographs: “I hadn’t said anything - of
course, I don’t know how - now, these pictures apparently, I don’t know who developed them, how
they were made. I mean, they say they’re taken off the phone. I have no reason to doubt that, I guess,
Your Honor . . . but I don’t know how they were blown up like this.” (R. 95, TT2, Colloquy 288.)
Following the Government’s response that the photographs were taken off of Defendant’s cell phone,
transferred to a CD, and printed off of the CD on a regular printer, Defendant’s counsel never again
challenged the authenticity of the photos and ultimately only objected to the jury’s viewing one of
the photographs, that depicted an act of oral sex, on the grounds that its prejudicial effect
substantially outweighed its probative value. See Fed. R. Evid. 403.
        Later in the trial, when the Government moved to admit the cell phone, Defendant’s counsel
objected to the fact that the phone had not appeared on the list of items seized from the home.
Defense counsel conceded on the record, however, that the Government had disclosed during
discovery that they had seized the cell phone and that they intended to use it at trial. Counsel did not
deny that he had never moved to suppress the phone or its contents. The District Court overruled
Defense counsel’s objection, and the Government proceeded to introduce the cell phone through the
testimony of Officer Dalrymple, and to admit the four photographs retrieved from the phone, without

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No. 09-6091
United States v. Cobb

Three of the photographs depicted a woman’s bare breasts and were identified at trial by the women

depicted in the photographs as being pictures of them taken by the Defendant on his cell phone. The

defense did not object to the jury viewing these photographs but did object to the jury viewing a

fourth photograph that depicted L.G., who testified at trial and confirmed that she was the woman

in the photo, performing oral sex on the Defendant. L.G. would have been about twenty-years old

at the time the photograph was taken and she testified that oral sex became the price she paid for the

oxycontin she received from the Defendant. With respect to this photograph, Defendant’s counsel

questioned the basis for permitting the jury to view the picture:

       But this one, this one in particular, I haven’t said anything about the other three, but
       this one in particular, I don’t see - I mean, it’s clear that what we’re - you know, that
       she’s testified . . . . I just think it’s - I mean - I mean, what is it proving, I mean?

(R. 95, TT2, Colloquy 288.) The Government responded as follows:

       It corroborates her testimony. The essential argument on the part of the defense is this
       is all lies. This is all - they’re making this stuff up. This proves by its very nature that
       in fact this did in fact occur.

(Id. at 289.) The Court then observed:

       Well, what the government’s saying, though, is that this goes to the witness’s
       credibility, and that’s - so you’re going to - they should have - if you argue that they
       may or may not have engaged in an [sic] sexual act, we don’t know that they did
       because of the drug abuse, because they have been attacking their credibility in some
       ways and saying they’re lying about having engaged in some sexual act. . . . [I]f that’s
       the issue, then I do think the government has the right to be able to show it.




further objection from Defendant’s counsel. Defendant does not assert any argument on appeal
regarding the cell phone or its contents other than the Fed. R. Evid. 403 objection to the one
photograph.

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No. 09-6091
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(Id. at 291.) Defendant’s counsel was unwilling to concede that the sexual act depicted in the photo

had occurred:

        So in essence, if I tell you that it’s not an issue, then you leave it out is what you’re
        saying, which I’m not prepared - which I wouldn’t be prepared necessarily to say that
        anyway.

(Id. at 292.) The District Court then ruled that the photographs were relevant and that, in light of the

nature and quantity of similar evidence presented in the trial, their probative value was not

outweighed by their prejudicial effect:

        [S]adly, this whole case is full of evidence that’s of this ilk. My job is to decide
        whether it’s relevant, and then if it is, whether or not it’s so prejudicial that it ought
        to be excluded, even though it’s relevant.

        I do think - I’m going to overrule the objection - I do think the evidence is relevant
        to confirm the truthfulness of the testimony that is being offered, and I don’t believe
        it’s overly prejudicial, despite the graphic nature of the photograph. I don’t think it’s
        going to incite the jury to make a decision based on prejudice because of the
        photograph. . . . [I]f you believe that you ought to renew your objection because they
        haven’t established a foundation for the introduction of it - yes, of course, none of
        this has been introduced yet. . . . [I]f there’s problems with authentication and the
        way that they’ve been enlarged - obviously, that’s not the size of the cell phone - then
        I do - then we’ll address those issues at that particular time. . . . I think those are fair
        issues to kind of hold in abeyance. I’ll overrule the objection. I’ll allow admission
        of the photographs.

(Id. at 292-95.) Defendant’s counsel did not further object on the basis of authenticity and Defendant

does not assert such an argument in his appeal.

        The Sixth Circuit has opined: “Rule 403 of Federal Rules of Evidence excludes evidence

when its unfair prejudicial impact substantially outweighs its probative value. In balancing prejudice

and probative value, trial courts have considerable leeway. Because appellate courts work with a

record which cannot fully convey a trial's nuances, dynamics and atmosphere, they have a limited

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No. 09-6091
United States v. Cobb

capacity to review the balance struck by the trial court. Consequently, we will not reject a trial court's

balancing unless the ‘substantial prejudice’ clearly outweighs the ‘probative value.’” United States

v. Swift, 

, 323 (6th Cir. 1987) (citing United States v. Brady, 

, 361 (6th

Cir.), cert. denied, 

, 

, 

(1979), which held that “[i]n

reviewing a decision of a trial court on this issue we must look at the evidence in a light most

favorable to its proponent, maximizing its probative value and minimizing its prejudicial effect”).

        “[T]he prejudice to be weighed is the unfair prejudice caused by admission of the evidence.

Evidence that is prejudicial only in the sense that it paints the defendant in a bad light is not unfairly

prejudicial pursuant to Rule 403.” United States v. Chambers, 

, 456 (6th Cir. 2006)

(emphasis in original). “‘Unfair prejudice,’ as used in Rule 403, does not mean the damage to the

defendant’s case that results from the legitimate probative force of the evidence; rather, it refers to

evidence which tends to suggest decision on an improper basis.” United States v. Mendez-Ortiz, 

, 79 (6th Cir. 1986). Finally, “[e]ven when the district court abuses its considerable

discretion, that error is harmless unless it is more probable than not that the error materially affected

the verdict.” United States v. Lloyd, 

, 516 (6th Cir. 2006) (internal citation and

quotation marks omitted).

        There is no question that the District Judge applied the correct legal standard under Fed. R.

Evid. 403, in determining whether the probative value of this photograph was substantially

outweighed by the danger of unfair prejudice. Nor did he err in permitting the jury to view this

photograph. The photograph, that Defendant took, was retrieved from his cell phone. L.G., who

testified at trial and was subject to cross-examination, identified herself in the photograph and

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No. 09-6091
United States v. Cobb

recalled that it was taken by the Defendant with his cell phone and that the act was performed in

exchange for an oxycontin pill. The cornerstone of the defense in this case, as the District Court

Judge articulated in his ruling, was Defendant’s contention that he never had sex with these women

in exchange for drugs and that they were all lying drug addicts. Notably, although given the

opportunity, the Defendant was not willing to stipulate to the sexual act depicted in the photograph,

which may have derailed the Government’s efforts to introduce the photograph. Each witness’s

credibility was strenuously attacked and their implied penchant for dishonesty was a central theme

of the defense. At the Sentencing Hearing, Defendant’s counsel reiterated: “Our position is, and

always has been, that Mr. Cobb did not engage in any sex with any of these alleged – I mean, any

of the people that testified in this case.” (R. 98, Sent. Hr’g Tr. 48.)

       Nor did the District Court err in concluding that the photograph would not have an unfairly

prejudicial effect on the jury. The jury heard the testimony of nine young women, all of whom

testified in great detail to the extent of their sexual encounters with the Defendant and/or with other

women at the Defendant’s insistence and for his viewing pleasure. These jurors had already seen

photographs, without objection by the defense, of young women baring their breasts for the

Defendant to capture on his cell phone - women who at trial identified themselves in the photographs

and testified that they bared their breasts in exchange for oxycontin pills. That the jurors also were

able to see another photograph, albeit arguably of a more graphic nature, does not strike the Court

as unfairly prejudicial under such circumstances.6 The Government had a right to attempt to


6
 Cobb also argues that the District Court “should have provided the jury with an immediate
instruction regarding the use of this evidence.” Appellant Br. at 19. However, Cobb did not ask for

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No. 09-6091
United States v. Cobb

establish the credibility of its witnesses by corroborating evidence. Visual confirmation that one of

them was telling the truth, at least about the sexual encounters which Defendant suggested did not

occur, accomplishes that purpose and does not suggest a decision on an improper basis. Even if it

was error to admit the photograph, in light of the overwhelming and otherwise disturbing evidence

presented against the Defendant in support of the Government’s distribution claim, it is highly

unlikely that viewing the photograph materially affected the outcome of the trial. We find that the

District Court did not abuse its discretion in admitting the photograph of L.G. performing oral sex

on the Defendant.

       C.      The District Court Did Not Err In Ruling That D.A. Was Competent to Testify

       The District Judge relied on this Court’s opinion in United States v. Phibbs, 

(6th Cir. 1993), in ruling that D.A. was competent to testify at trial. We stated in Phibbs:

       [T]he Federal Rules of Evidence strongly disfavor barring witnesses on competency
       grounds due to mental incapacity. As we wrote in United States v. Ramirez, 

, 584 (6th Cir.), cert. denied, 

, 

, 

       (1989):

               What must be remembered, and is often confused, is that
               “competency” is a matter of status not ability. Thus, the only two


a specific instruction regarding the picture, either at the time the picture was shown to the jury or
when the District Court was reviewing proposed jury instructions with counsel. In fact, the District
Court’s proposed instructions repeated twice the general instruction that the verdict is to be limited
to the charges in the indictment, and defense counsel objected that it was repetitive. (R. 96, TT3,
Colloquy 213, 226.) The general instruction did not address specifically the proper use of the picture
as evidence, but it was at least some instruction relating to the idea that the jury should not convict
Cobb on the basis of his sexual acts. Defense counsel’s objections resulted in that general
instruction being given to the jury only once instead of twice, as originally proposed. The District
Court did not plainly err by failing to provide a specific instruction regarding the proper use of the
picture as evidence.

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No. 09-6091
United States v. Cobb

                groups of persons specifically rendered incompetent as witnesses by
                the Federal Rules of Evidence are judges (Rule 605) and jurors (Rule
                606). The authority of the court to control the admissibility of the
                testimony of persons so impaired in some manner that they cannot
                give meaningful testimony is to be found outside of Rule 601. For
                example, the judge always has the authority under Rule 403 to
                balance the probative value of testimony against its prejudicial effect.
                Similarly, under Rule 603, the inability of a witness to take or
                comprehend an oath or affirmation will allow the judge to exclude
                that person's testimony. An argument can also be constructed that a
                person might be impaired to the point that he would not be able to
                satisfy the “personal knowledge” requirement of Rule 602. Again
                though, it is important to remember that such decisions by a trial
                judge to either admit or exclude testimony will only be reversed for
                a clear abuse of discretion. (Footnote 

.

        A review of D.A.’s trial testimony, and the District Court’s extensive efforts to ensure that

D.A. understood the oath and was both competent and not impaired, convince this Court that the

District Court did not abuse its discretion in concluding that D.A. was competent to testify. While

D.A., much to the Government’s frustration at trial, appeared to have difficulty remembering the

facts as she had earlier allegedly reported them to Officer Dalrymple, this does not speak to her

competence as a witness or her personal knowledge. Many witnesses suffer memory failures when

testifying, and, standing alone, this is not a basis to exclude testimony. Defendant’s counsel was free

to attack D.A. on cross-examination, and to highlight to the jury her inability to recall events, to the

extent he felt that might be necessary. Indeed, D.A.’s testimony, that she could not remember ever

having sex with the Defendant and remembers receiving oxycontin from him only twice when she

was “sick,” appears to have been more supportive of the Defendant than the Government, as



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No. 09-6091
United States v. Cobb

evidenced by the Government’s request part-way through her testimony to examine her as a hostile

witness.7

        The District Judge, in response to the Government’s concerns that D.A. was acting “flighty”

and its fear that she might not return following a lunch break, reminded D.A. of her obligation to

appear and testify, which she did. Before the District Judge permitted her to testify, he examined

her at great length outside the presence of the jury to ensure that she understood her obligation to be

truthful, to ascertain whether she understood her right not to incriminate herself and determined that

she was not suffering from any impediment that might compromise her ability to act as witness.

        D.A. testified that she understood her obligation to tell the truth and understood the

consequences of committing perjury. She further testified that she understood that she could ask for

a lawyer at anytime. She testified that she was addicted to oxycontin and had taken one the night

before at around 6:30 p.m. However, contrary to the claim made in Appellant’s brief, D.A.

specifically responded that she was not feeling the effects of that pill the morning of her testimony:

        The Court: So you used an OxyContin last night as well?
        D.A.: Yes. . . .


7
 In fact, is not at all clear that the Defendant objected to D.A.’s competence to testify at trial. It was
the Government, not defense counsel, who initiated the Court’s inquiry into D.A.’s “flighty”
behavior. Moreover, after the District Judge questioned D.A. outside the presence of the jury to
determine her competence and personal knowledge, both counsel indicated that they were satisfied
that D.A. should proceed to take the stand. If the Defendant did not object to the District Court’s
decision to permit D.A. to testify, our review would be under the much more deferential plain error
rule. “The plain error doctrine mandates reversal only in exceptional circumstances and only where
the error is so plain that the trial judge and the prosecutor were derelict in countenancing it.” United
States v. Carroll, 

, 1383 (6th Cir. 1994) (quoting United States v. Slone, 

,
598 (6th Cir. 1987)). Under either the plain error or the abuse of discretion standard, it was not error
for the District Court to permit D.A. to testify.

                                                   19
No. 09-6091
United States v. Cobb

        The Court: Do you feel like the effects of the OxyContin you can still feel?
        D.A.: No.
        The Court: You don’t feel like you can feel those effects?
        D.A.: No.

(R. 95, TT2, D.A. 196-97.) D.A. responded that she understood everything the Judge had asked her

and that it had all been clear to her. After examining D.A., in the presence of both the Government

and the Defendant and his counsel, the District Judge asked if either side had additional questions

they wished to pose to D.A.. Both answered no. In addition to ascertaining all of this information

before permitting D.A. to testify, the Judge ensured that the jury was not prejudiced in any way as

to her testimony by having her step down from the stand and recalling her to the witness stand after

the jury had re-entered the courtroom.

        While this Court certainly cannot put itself in the position that the District Court enjoyed, and

cannot appreciate any non-verbal inferences that may have accompanied D.A.’s testimony, a reading

of her testimony gives no hint that she lacked either competence or personal knowledge. Among

other moments of clarity, she expressly recalled spending Super Bowl weekend with the Defendant

back in 2007 and informed the Court that she was an LPN and articulately identified each type of

oxycontin pill by milligram, color and shape. Appellant’s brief does nothing more than recite the

legal standard and state in a conclusory fashion that D.A. was incompetent and impaired because she

had trouble remembering if she ever had sex with the Defendant. This does not satisfy Defendant’s

burden. D.A. demonstrated neither a lack of understanding of her oath to tell the truth nor an

impairment sufficient to deprive her of personal knowledge of the events to which she testified.

Quite the contrary in fact. In short, there is absolutely no basis on which to conclude that the District


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No. 09-6091
United States v. Cobb

Court erred in permitting D.A. to testify. We affirm the District Court’s decision to permit D.A. to

testify.

           D.     The Trial Court Properly Assessed a Two-Level Enhancement for Possession
                  of a Firearm Available for Use in Connection with Distribution of a Controlled
                  Substance

           “On appeal, sentences are reviewed for reasonableness under an abuse of discretion standard.

The reasonableness determination has both a procedural and substantive component.” United States

v. Brown, 

, 677 (6th Cir. 2009) (citing United States v. Booker, 

, 260-61,

, 

(2005) and United States v. Sedore, 

, 822 (6th Cir.

2008)). Procedural error may include “‘failing to calculate (or improperly calculating) the

Guidelines range, treating the Guidelines as mandatory, failing to consider the [18 U.S.C.] § 3553(a)

factors, selecting a sentence based on clearly erroneous facts, or failing to adequately explain the

chosen sentence-including an explanation for any deviation from the Guidelines range.’” 

v. United States, 

, 

, 597, 

(2007)). A

substantive error would be based on a finding that the sentencing court “‘select[ed] the sentence

arbitrarily, bas[ed] the sentence on impermissible factors, ... or [gave] an unreasonable amount of

weight to any pertinent factor.’” 

States v. Webb, 

, 385 (6th Cir.

2005)). “The district court’s interpretation of the advisory guidelines is reviewed de novo, and its

findings of fact are reviewed for clear error.” 

. The District Court is

accorded great deference in applying the sentencing guidelines to the facts. 

States

v. Kosinski, 

, 774 (6th Cir. 2007)).



                                                   21
No. 09-6091
United States v. Cobb

        Pursuant to United States Sentencing Guidelines Section 2D1.1(b)(1), the Government and

the PSR recommended an increase of two levels for the Defendant’s possession of a firearm in

connection with his distribution of oxycontin. Section 2D1.1(b)(1) provides: “If a dangerous

weapon (including a firearm) was possessed, increase by 2 levels.” The enhancement under

2D1.1(b)(1) will be applied where the government can establish “that (1) the defendant actually or

constructively possessed the weapon and (2) such possession was during the commission of the

offense.” United States v. Hill, 

, 1485 (6th Cir. 1996). The analysis of the

enhancement’s applicability involves a burden-shifting test:

        “Constructive possession of an item is the ‘ownership, or dominion or control’ over
        the item itself, ‘or dominion over the premises’ where the item is located.” 

“Once it is established that a defendant was in possession of a
        weapon during the commission of an offense, a presumption arises that such
        possession was connected to the offense.” 

then shifts to the defendant
        to show that “it is clearly improbable that the weapon was connected to the offense.”
        Id.

(quoting United States v. Sanchez, 

, 1460 (6th Cir.1991) citing

U.S.S.G. § 2D1.1, application note 3). The guidelines do not require that the firearms be “readily

accessible” to support application of the enhancement; it is sufficient if they “could have facilitated”

the underlying offense. United States v. Tisdale, 

, 937 (6th Cir. 1992).

        In this case, the PSR reported that T.M. once traded a stolen firearm to the Defendant in

exchange for oxycontin. T.M. confirmed this in her testimony at trial: “I was - I traded a gun to him

for a pill, and it was a stolen gun. He went and showed it off to this guy that it got stold [sic] from

him, so I went to jail for that, and doing six months for it.” (R. 95, TT2, T.M. 122.) T.M. testified

that she took the stolen gun to the Defendant “in trade for a pill.” (R. 95, TT2, T.M. 133.)

                                                  22
No. 09-6091
United States v. Cobb

       In this case, the Defendant objected to the two-level firearms increase “due to the fact that

at no time has [Cobb] been charged with any firearms offense.” The Defendant further objected

because there was no evidence presented that the drugs and the firearms were present together,

focusing on firearms that were seized during the search of the Defendant’s camper/trailer.8 At the

sentencing hearing, during the discussion of Defendant’s objections to the two-level enhancement,

Defendant’s counsel reiterated his contention that the connection between the firearms and

ammunition and the alleged drug offense was too remote. (R. 98, Sent. Hr’g Tr. 42-43.) Defense

counsel conceded his understanding that actual possession is not required and that “[i]f it is around,

it could be perceived as some sort of threat or some sort of, you know, coercion in some form or

fashion.” (Id. at 43.) He maintained, however, that “very few witnesses ever said anything about

Mr. Cobb . . . having any weapon.” (Id.)

       The District Judge permitted the Defendant to speak at the sentencing hearing to rebut T.M.’s

testimony that he had traded her oxycontin for a stolen gun. The Defendant maintained that he


8
 In reaching its decision to apply the enhancement, the District Court also relied on the fact that
firearms were seized from the Defendant’s camper/trailer and on facts set forth in the PSR indicating
that firearms were present in the camper/trailer during parties at which the Defendant distributed
oxycontin to conclude that it was not “clearly improbable” that firearms were connected to the
distribution of oxycontin. The PSR reported that a search of Defendant’s camper uncovered two
firearms, a revolver and a rifle with ammunition. The PSR stated that E.L. had recounted that she
attended a “naked party” at Defendant’s camper, during which he distributed oxycontin pills to
several girls who engaged in various sexual acts with the Defendant during the party in exchange for
the pills. E.L. stated that she saw a firearm in the camper/trailer during the “naked party.” The PSR
further reports that D.A. stated that the Defendant “often bragged about having powerful friends”
and “could mess up the lives of anyone who cooperated against him.” D.A. indicated that the
Defendant “always kept a firearm with him.” The PSR further reported that A.G., L.G.’s mother,
indicated that her late husband and the Defendant “traded guns with each other.” These facts were
not mentioned at trial.

                                                 23
No. 09-6091
United States v. Cobb

actually purchased the gun from T.M. and that she wrote him a receipt. (R. 98, Sent. Hr’g Tr. 44-

45.) Notwithstanding Defendant’s statement, the District Court overruled Defendant’s objection and

allowed the two-level increase, observing:

       [T]here’s evidence that has been presented, a statement by the defendant as it relates
       to a particular weapon and how that came in his possession. But on the other side of
       that is the testimony that has come into court from [T.M.], who testified that she
       traded a firearm to the defendant in exchange for the drugs. And then the broader
       evidence and the broader information that is before the Court with respect to the
       presence of firearms and the possession that the defendant had of these firearms
       while distributing the oxycodone and distributing the drugs on many, many different
       occasions.
       Again, the evidentiary standard’s different here in the context of the sentencing. I do
       think there’s a preponderance of the evidence that suggests, though, that you had
       access to a firearm, you possessed that firearm, and that you possessed it in
       relationship to these drug transactions. And so I think that two-level increase is
       appropriate in this case, and so I’ll overrule objection number 4 as well.

(R. 98, Sent. Hr’g Tr. 47-48.)

       In United States v. Gibson, 

(6th Cir.), cert. denied, 

(1998), this

Court faced the precise issue presented in this case, i.e. the application of the Section 2D1.1(b)(1)

enhancement where the weapon was the quid pro quo for the underlying drug transaction. In Gibson,

the defendant made several sales of crack cocaine to an undercover agent over a period of time. For

the last sale, at the undercover agent’s urging, the defendant accepted an automatic pistol in

exchange for the crack cocaine. 

The district court, recognizing the somewhat unusual

factual scenario underpinning the request for the two- level enhancement under Section 2D1.1(b)(1),

concluded that the weapon was “the essence of the February drug transaction” and applied the

enhancement. 

09-6091
United States v. Cobb

          Reviewing the district court’s application of the enhancement in Gibson, this Court also

recognized the novel factual presentation, noting that research had “failed to locate a case applying

or rejecting the application of Section 2D1.1(b) to the delivery of an unloaded gun by an undercover

police officer to a seller of a controlled substance as the quid pro quo for the transaction.” 

then examined Application Note 3 to Section 2D1.1(b)(1) which provides:

           The enhancement for weapon possession reflects the increased danger of violence
          when drug traffickers possess weapons. The adjustment should be applied if the
          weapon was present, unless it is clearly improbable that the weapon was connected
          with the offense. For example, the enhancement would not be applied if the
          defendant, arrested at his residence, had an unloaded hunting rifle in the closet.

In Gibson, noting that the “finding which negates the application of the enhancement is lack of a

connection to the offense,” this Court examined the common meaning of the term “connected” and

concluded that the firearm was indisputably “linked” to the offense. Because the defendant did

possess the firearm, and the firearm was “connected” to the offense, this Court upheld application

of the 

.

          We begin our analysis of the trial court’s application of the enhancement in this case with

the understanding that a district court is accorded great deference in applying the sentencing

guidelines to the facts. 

. In this case, the District Judge was able to assess

the credibility of both T.M. and the Defendant in relation to whether the Defendant in fact traded

T.M. oxycontin in exchange for a firearm. This Court will not substitute its judgment for that of the

District Court. Moreover, this situation is not analogous to having an unloaded hunting rifle in the

closet.



                                                  25
No. 09-6091
United States v. Cobb

       The Defendant’s argument that the two-level increase should not have been applied because

he was not charged with a firearm offense is inapt - the Defendant need not be charged with a firearm

offense for the two-level increase to be applied. He need only constructively possess a weapon

during the commission of an offense to face the presumption that the firearm was connected to the

offense. 

. Under this Court’s opinion in Gibson, upholding application the

Section 2D1.1(b)(1) enhancement where a firearm was traded to the defendant as the quid pro quo

for a controlled substance, it was appropriate for the trial court to apply the two-level enhancement

to the Defendant’s delivery of oxycontin as the quid pro quo for a firearm that he received from T.M.

in exchange. As in Gibson, the firearm “was the essence” of the transaction between the Defendant

and T.M. – it was the basis of, and the reason for, the exchange. “It is beyond dispute that the

defendant ‘possessed’ the firearm and that the firearm was linked, i.e., “connected,” to the offense.”

. Admittedly, this is not the typical fact pattern that supports application

of an enhancement under Section 2D1.1(b)(1). However, as this Court concluded in Gibson, a literal

reading of the Guidelines and Commentary clearly supports application of the enhancement based

upon such an exchange.

       We find no error in the District Court’s conclusion that the Defendant possessed a firearm

in connection with his distribution of oxycontin. Accordingly, we AFFIRM the District Court’s

application of the two-level increase under § 2D1.1(b)(1) and deny Defendant’s request for a remand

and resentencing.




                                                 26
No. 09-6091
United States v. Cobb

III.   CONCLUSION

       For the foregoing reasons, we AFFIRM the conviction and DENY the request for a remand

and resentencing.




                                            27