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File Name: 18a0600n.06

Case No. 17-2341

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v.

HARPINDER SIAN,

Defendant-Appellant.

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ON APPEAL FROM THE UNITED 

STATES DISTRICT COURT FOR 

THE EASTERN DISTRICT OF 

MICHIGAN

BEFORE: ROGERS, STRANCH, and THAPAR, Circuit Judges.

THAPAR, Circuit Judge. A jury convicted Harpinder Sian on two drug-related charges. 

Sian now appeals several evidentiary rulings from that trial. He also challenges his sentence as 

both procedurally and substantively unreasonable. We affirm.

I.

Harpinder Sian orchestrated a drug distribution network from his home in Ontario, Canada. 

He would obtain several thousand ecstasy pills and then have couriers smuggle them into the 

United States for distribution. But when the government arrested these couriers, the scheme 

unraveled. Two such couriers agreed to record phone calls between themselves and Sian. In these 

phone calls, Sian arranged the delivery of ecstasy pills to the couriers—thus giving the government 

a rare “smoking gun” it could use to prosecute Sian. The United States charged Sian with 
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conspiring to possess and actually possessing a controlled substance with the intent to distribute. 

A jury convicted Sian on both charges, and he now appeals. 

II.

We review Sian’s claim that the district court improperly admitted four statements at trial

for an abuse of discretion. United States v. Wright, 343 F.3d 849, 865 (6th Cir. 2003). 

Helmerson’s courier testimony. Sian claims that the district court improperly admitted 

hearsay at trial. Hearsay is an out-of-court statement that is used to prove the truth of the matter 

asserted in that statement. Fed. R. Evid. 801(c). So, to constitute hearsay, the testifying witness 

must repeat an out-of-court statement. Sian’s first objection is meritless because the testimony he 

points to does not include any out-of-court statements. DHS Agent Brian Helmerson testified at 

trial about Sian’s couriers. Helmerson said that he identified the couriers “[t]hrough witness 

statements, photo identifications, [and] interviews,” but Helmerson never actually described those 

“witness statements” or recounted those “interviews.” R. 89, Pg. ID 619; see United States v. 

Gholston, 10 F.3d 384, 388 (6th Cir. 1993); see also United States v. Ibarra-Diaz, 805 F.3d 908, 

919–20 (10th Cir. 2015). In limiting his testimony to the actions that he took during the 

investigation, he simply provided “the background of the case and the reasons for [his] . . . actions”; 

he did not discuss what those witnesses told him or said out of court. Gholston, 10 F.3d at 388; 

see also United States v. Martin, 897 F.2d 1368, 1371 (6th Cir. 1990). Since Helmerson’s 

testimony did not include out-of-court statements, the district court properly found that it was not

hearsay.

Helmerson’s fingerprint testimony. Sian’s second objection also fails because the 

testimony he points to is not hearsay. Hearsay must include not only an out-of-court statement, 

but also a statement used for a specific purpose: proving the matter asserted in that statement. 
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Out-of-court statements are not hearsay if they are used for different purposes. United States v. 

Kilpatrick, 798 F.3d 365, 386 (6th Cir. 2015). While Sian’s second objection points to testimony 

that includes an out-of-court statement, it fails because those statements were not being used to 

prove what was said in them. Helmerson testified that he did not test the physical evidence for 

fingerprints because he “had previously received information that [such] efforts would be 

fruitless.” R. 89, Pg. ID 642. But the government did not offer that statement to prove that 

fingerprint testing would indeed have been fruitless. Instead, the government offered Helmerson’s 

testimony for a different purpose: to show why Helmerson made a specific investigative decision.

See Martin, 897 F.2d at 1371. That purpose means the out-of-court statement was not hearsay.

Helmerson’s tape testimony. Sian’s third objection falls short for a different reason. 

Sometimes the Rules of Evidence define a statement that otherwise looks like hearsay as the very 

opposite: “not hearsay.” Fed. R. Evid. 801(d). When the out-of-court statement was made by the 

defendant himself, for instance, the Rules do not count that statement as hearsay when it is used

by the government. Fed. R. Evid. 801(d)(2)(A). At trial, Helmerson discussed a tape recording 

between Sian and one of his couriers, Edward Hermiz. When the government asked Helmerson 

about the tape’s contents, the agent stated that “[Sian] was going to provide additional quantities 

of illegal drugs to . . . Mr. Hermiz . . . .” R. 89, Pg. ID 591. Sian objected to Helmerson’s testimony 

as hearsay. Although Helmerson testified about an out-of-court statement (Sian’s discussion of 

the drug quantities) that the government wanted to prove, the statement came from Sian himself. 

See United States v. Henderson, 626 F.3d 326, 337 (6th Cir. 2010). And when the agent 

summarized Hermiz’s statements, he did so only to provide context and not for the truth of 

Hermiz’s statements. See id. (“[T]he statements made by others were not admitted to show the 

truth of the matters asserted, but to provide context for [the defendant’s] admissions.”). 
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Accordingly, the district court properly found that this statement was “not hearsay.” Fed. R. Evid. 

801(d). 

Bryant’s testimony. Finally, Sian objects to his coconspirator’s statements. But these 

statements were “during and in furtherance of the conspiracy” and thus are “not hearsay.” Fed. R. 

Evid. 801(d)(2)(E). At trial, courier Demond Bryant testified that another courier (the “Hockey 

Player”) said that he had large quantities of drugs to deliver to “the Chaldeans,” some of Sian’s 

top customers. R. 90, Pg. ID 726. Sian maintains that the district court should have excluded the 

statement because it was “[m]ere ‘idle chatter’” that did not further the drug conspiracy. United 

States v. Salgado, 250 F.3d 438, 449–50 (6th Cir. 2001) (citing United States v. Maliszewski, 161 

F.3d 992, 1009 (6th Cir. 1998)). But discussions about the quantities that top customers will 

receive go directly to the heart of a drug distribution conspiracy. See id. at 450. Thus, the district 

court properly admitted the statements as “not hearsay” because they were made “in furtherance 

of the conspiracy.” Fed. R. Evid. 801(d)(2)(E).

1

 

III.

Sian challenges another evidentiary ruling by the district court, which we again review for 

abuse of discretion. Wright, 343 F.3d at 865. He also contests the district court’s denial of a Rule 

29 motion for judgment of acquittal due to insufficient evidence, which we review de novo. United 

States v. Garcia, 758 F.3d 714, 718 (6th Cir. 2014); United States v. Beddow, 957 F.2d 1330, 1334 

(6th Cir. 1992).

 

1 Sian also suggests that the government improperly used this statement as evidence of “other bad acts” in order to 

expand the scope of his liability. See generally Fed. R. Evid. 404(b). But statements about top customers in a drug 

distribution conspiracy provide necessary information about the conspiracy. United States v. Rios, 830 F.3d 403, 426 

(6th Cir. 2016) (holding that evidence that is “‘inextricably intertwined’ with the indicted crime” is not subject to 

exclusion under Fed. R. Evid. 404(b) (quoting United States v. McGee, 510 F. App’x 377, 381 (6th Cir. 2013))).
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Tape recording. Sian contends that the district court erred when it admitted a tape 

recording about drug deliveries between Sian and Bryant. In the recording, Sian said, “[b]ut you 

think just because you’re African-American you think you can talk like [that], you think it’s gonna 

be your way or the highway . . . .” Appellee Br. 15; see R. 90, Pg. ID 747. Sian believed this 

statement made the tape more prejudicial than probative. But the district court concluded that the 

tape’s probative value was not “substantially outweighed by a danger of . . . unfair prejudice.” 

Fed. R. Evid. 403. The tape recording heavily corroborated Sian’s involvement in the conspiracy, 

and, as the district court concluded, the objectionable statement only appeared as an “isolated 

reference.” R. 90, Pg. ID 748. Plus, the district court noted that the jury had already heard “all 

different types of language,” making it unlikely that this particular reference would cause unfair 

prejudice. R. 90, Pg. ID 747–48. Thus, the district court did not abuse its discretion in concluding 

that the probative value of the tape outweighed the speculative prejudice of an isolated and vague 

statement within it. See, e.g., United States v. Frasch, 818 F.2d 631, 633–34 (7th Cir. 1987); 

United States v. Harbin, 601 F.2d 773, 780 (5th Cir. 1979); cf. United States v. Bright, 630 F.2d 

804, 814 (5th Cir. 1980).

Sufficiency of the evidence. Sian additionally challenges the sufficiency of the evidence 

supporting the jury verdict. See Fed. R. Crim. P. 29(a); Garcia, 758 F.3d at 718. He claims that 

the government’s case rested on two witnesses, and these witnesses were not credible enough to 

support his conviction. To him, their “testimony was inherently incredible, self-serving and 

mendacious such that no rational jury should have credited their testimony . . . .” Appellant Br. 

52. But, when considering whether sufficient evidence supports the jury verdict, this court does 

not “make [its] own assessment of the credibility of the witnesses who testified at trial.” Garcia, 

758 F.3d at 718. Credibility determinations go to the quality of the government’s evidence, not
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the sufficiency. United States v. Conatser, 514 F.3d 508, 518–19 (6th Cir. 2008). Therefore, 

because Sian has attacked only witness credibility on appeal, his challenge fails. 

IV.

Sian challenges his sentence as both procedurally and substantively unreasonable, and we 

review his “sentence under an abuse-of-discretion standard.” Gall v. United States, 552 U.S. 38, 

51 (2007); United States v. Tristan-Madrigal, 601 F.3d 629, 632 (6th Cir. 2010). 

Sian maintains that the district court erred when it applied two enhancements to his 

sentence, both involving his role as a “manager or supervisor” in the drug conspiracy. See U.S.

Sentencing Guidelines Manual § 3B1.1(b) (U.S. Sentencing Comm’n 2016) (recommending a

three-level enhancement if the defendant managed or supervised a criminal activity involving five 

or more people); see also id. § 2D1.1(b)(15)(C) (recommending a two-level enhancement if the 

defendant managed or supervised a crime that involved the importation of a controlled substance). 

He argues that these enhancements made his sentence procedurally unreasonable.

First, he contends that applying the § 2D1.1(b)(15)(C) manager enhancement violated the 

Ex Post Facto Clause. U.S. Const. art. I, § 9, cl. 3. The Ex Post Facto Clause forbids laws that 

increase the penalty for a crime after that crime was already committed. Calder v. Bull, 3 U.S. 

(3 Dall.) 386, 389 (1798) (Chase, J.). That means that a later-added Sentencing Guideline cannot 

enhance the sentence for a prior-committed crime. Peugh v. United States, 569 U.S. 530, 544 

(2013). And since Sian completed his role in the conspiracy in 2007, he contends that the twolevel § 2D1.1(b)(15)(C) enhancement—added to the Guidelines in 2014—should not have applied 

to him. 

But since this enhancement did not “retroactively ‘increase[] the penalty by which [Sian’s] 

crime in punishable,’” it does not violate the Ex Post Facto Clause. United States v. Kruger, 
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838 F.3d 786, 790 (6th Cir. 2016) (quoting Cal. Dep’t of Corr. v. Morales, 514 U.S. 499, 506–07 

n.3 (1995)). An enhancement must “disadvantage the offender affected by it” to violate the Ex 

Post Facto Clause. Id. (quoting Weaver v. Graham, 450 U.S. 24, 29 (1981)). Sian, however, 

would have had the same Guidelines range under either the 2007 version (without the 

enhancement) or the 2016 version. Under the 2007 Sentencing Guidelines, Sian would have 

received a base offense level of 36 for the drug quantities involved in his case. U.S.S.G § 

2D1.1(c)(2) (2007). Yet, under the 2016 Sentencing Guidelines, the exact same quantity of drugs 

yields a base offense level of 34. Id. § 2D1.1(c)(3) (2016). When the district court applied the 

§ 2D1.1(b)(15)(C) manager enhancement, it brought Sian’s offense level up to 36—the very same 

offense level that he would have had under the 2007 Sentencing Guidelines without the 

enhancement. Therefore, adding the § 2D1.1(b)(15)(C) manager enhancement did not 

disadvantage Sian, so it did not violate the Ex Post Facto Clause. See Peugh, 569 U.S. at 535

(holding that the Ex Post Facto Clause is violated only if the defendant receives a “higher 

applicable sentencing range”); see also United States v. Ramirez, 846 F.3d 615, 622 (2d Cir. 2017)

(“The relevant inquiry for ex post facto analysis is not whether a particular amendment to the 

Sentencing Guidelines is detrimental to a defendant, but whether application of the later version 

of the Sentencing Guidelines, considered as a whole, results in a more onerous penalty.” (internal 

quotation marks and alteration omitted)).

Second, Sian argues that the government did not present enough evidence to prove that he 

was a “manager or supervisor” in the drug conspiracy. Yet the district court correctly noted that 

Sian was just one rung below the conspiracy’s primary ringleader. In this role, Sian recruited and 

supervised couriers, established pill prices, and even directed merchandise to certain customers. 

Such evidence about his supervisory role gave the district court sufficient evidence to reasonably 
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conclude that Sian was a “manager or supervisor” in the conspiracy. See United States v. 

Washington, 715 F.3d 975, 983 (6th Cir. 2013). Thus, Sian’s sentence is not procedurally 

unreasonable. 

Sian makes one last effort to challenge his sentence as substantively unreasonable. At 

sentencing, the district court varied downward from the Guidelines-recommended 262-to-327-

month range and imposed a 120-month sentence instead. Sian contends that the district court 

imposed this sentence arbitrarily. But the 120-month sentence reflects a figure well below the 

Guidelines range, and a defendant like Sian has a “demanding” task in demonstrating that it was 

unreasonable. United States v. Curry, 536 F.3d 571, 573 (6th Cir. 2008). However, he only cites 

the law on substantive reasonableness without pressing an argument that demonstrates that his 

sentence was unreasonable. Id. And the record shows that the district court properly balanced 

Sian’s history and characteristics against the need for deterrence to arrive at the 120-month 

sentence. Thus, Sian’s final challenge fails.

We affirm.