NOT RECOMMENDED F OR F ULL TE XT P UBLICATION F ile Nam e: 12a0386n.06 No. 09-5516 UNITED STAT ES COURT OF AP P EALS F OR THE S IXTH CIRCUIT UNITED STAT ES O F AMERICA, ) ) P laintif f-App ellee, ) ) ON AP P EAL FR OM THE UNITE D v. ) STATE S DIST RICT COURT F OR ) THE E ASTERN DIST RICT OF TRACY F EAGA N, ) TENNES SEE ) Defendan t-Appellant. )

BEFORE: K

ENNEDY, G IBBO NS, and KETHLEDGE, Circ uit Jud ges. CORNELIA G. KENN EDY, Circu i t Judge. Def endant, Trac y Fe ag an (“D efe ndant”) , appea ls his conviction for conspirac y to distribute five kilogr ams or more of coca ine hy drochloride , in violation of 21 U .S.C. §§ 846 and 841(b) (1)( A) (Count One ), and c onspiracy to commit money launder ing, in violation of 18 U.S.C. §§ 1956(a) (1)( A)(I ) and (a) (1)( B) (I ) and (h) (Count Two). (R. 65.) Specifica lly , Def

endant claims that his jury verdic t should be reve rsed, and he should be g iven

a new trial beca

use the district court err ed in three respe cts. First, he contends that the district court improperly denied his motion in limine and allowed the g overnme nt to prese nt evidenc e of separ ate and unchar g ed conspirac ies to the jury

. Next, he claims the trial court err ed in de ny ing his motion
to suppress evidenc e found pursuant to a sear ch of his resi d en ce at 2237 Six th Street NW, Birming ham, Alabama (the “Six th Street” residenc e, addre ss, or home). Finally , Def endant arg ues that the Easter

n District o f T ennessee was an improper venue for his trial. For the rea sons that follow, we AF F IRM

.F ACTUAL BACK GR OUND

Def endant was arr ested fo r h i s i n v o lvement in what came to be known as the “Sanche z C o n s p i rac y ,” which was headed by co-de fenda nt Eloy “Ed” Sanchez (“Sanchez”). Sanchez l ived in Phoe n i x , Arizona, and employ ed co-de fenda nt Har ry Goff (“G off” ), a long- rang e truck driver living in Alabama , t o t ra n s p ort coca ine and methamphetamine to Tenne ssee and Alabama

. Goff delivere d shipments of meth to two other co-de fenda nts, Timothy Morrow (“Mor row” ) and David “B uckwhe at” Rector (“Rec tor”) in J asper , Tenne ssee and Stevenson, Alabama

. Goff would pick the drug s up in Arizona, transport them acr oss the country , and deliver them to customers in Tenne ssee and Alabama

. Then he would spend his mandatory 34-hour driving lay over at home in Stevenson, Alabama and wait for the customers to bring him the money for the drug s afte r they had sold them. Goff w ould then drive the mone y back to Sanc hez in Phoenix , and re peat the pr ocess. Goff testified that he made three d el i v eries of coca ine to Def endant. (R. 303 at 167, 175, 1 7 7

. ) I n ear ly 2007, Goff delivere d 7 kilogr ams of cocaine to Def endant outsi de of Birmi n gh am , Alabama . (

Id. at 165-69.) H is second and third shipments wer e each f or 2 kilog rams of c ocaine

. ( Id. at 174-75, 177-79.) At some point afte r the third delivery , Goff was arr ested by law enfor ceme nt
ag ents in Ge o rgi a wi th 53 kilogr ams of coca ine. ( Id. at 181.) After his arr est, Goff beg an cooper ating with ag ents from the Drug Enforc ement Administration (“D EA”) under the supervision

o f Age n t J osh Melton (“A g ent Melton”), a Tenne ssee Bur eau of I nvestig ation ag ent who was assig ned to the DEA Task For ce in Chattanoog a, Tenne ssee. T h i s co o pera tion consisted of providing ag ents with information about the Sanchez Conspiracy and placing controlled phone calls, which we re r ecor ded, to Def endant. ( Id. )

2During one such phone call, Goff ag ree d to deliver 10 kilogr ams of coca ine to Def endant in Birming ham, Alabama

. (R. 302 at 52.) Def endant and Goff arr ang ed to meet at the Fly ing J truck stop. Be cause Goff was in custody afte r his arr est, Ag ent Melton did not allow Goff to actua lly g o
to Alabama for the buy

. I nstead, Ag ent Melton and others planned to conduct surveillance and arr est Def endant at the Fly ing J

. Def endant, howeve r, had an acc omplice conducting counter -surve illance who detec ted law- enfor ceme nt vehicles a t the Fly ing J. Accor dingly , he called Goff and ar rang ed
to meet at a business parking lot near the Fly ing J

. Ag ents attempted to arr est Def endant at the new location, but Def

endant f led; first in the g ree n Honda Ac cord he was driving , and then on f oot. Def endant was eventua lly appre hended, and office rs found three cellular pho n es af t er

sear ching his car . Def

endant had used one of the phones to talk to Goff to set up the controlled buy

. Offic ers ran the license plate of the Honda Def endant was driving an d discovere d that it was reg istered to Def

endant’ s mother-in-la

w, Anita Murdock. Ms. Murdock told ag ent s t h at the car belong ed to her daug hter, Oronda Bullar d Fe ag an. She also told office rs that both Ms. Fe ag an and Def endant drove t he car and lived toge ther at the S ix th Street addre ss. Ms. Fe ag an also informed
ag ents that Def

endant lived at the Six th Street residenc e. Offic ers also deter mined that a 2007 GMC Yukon par

ked outside the home w as re g istered in De fenda nt’s name to the Six th Street addre ss. Offic er J ames Wigg ley , a J eff erson County , Alabama , investiga tor assig ned to the DEA Ta s k For ce in Birming ham (“TF O Wigg ley ”), prepa red a sear ch war

rant aff idavit which he submitt ed to

an Alabama mag istrate judge

. (R. 108-1.) I n the aff idavit, TFO Wigg ley descr ibed Ag ent Melton’s investiga tion of Defe ndant, the rec orded phone calls with G off, and Def endant’ s arr est. (

Id. ) The aff idavit also mentioned Def endant’ s prior coc aine pur chase s and the cell phones found in the car Def endant drove t o the controlled buy

. TFO Wigg ley explained that based on his over nine y ear s

3of experience as a narc otics investiga tor, which include d investiga ting hundreds of drug case s and attending numerous training schools and seminars, it was rea sonable to believe that drug s and other evidenc e of dr

ug traff icking would be found in a suspected dr

ug deale r’s home. (

Id. ) The Alabama judge revie wed TFO Wiggley ’s aff idavit, and ultimately issued a sear ch

war rant for the Six th Street addre ss and any vehicles De fendant owned or possessed. The sear ch

reve aled two “bric ks” of coca ine in the baseme nt, a smaller quantity of coca ine, and a set of digital scale s. (R. 303 at 362-65.) Offic ers found cra ck coca ine, digital scale s, six cell phones, and a loaded .40 caliber

handg un inside Defe ndant’s GMC Yukon. ( Id. at 315-16, 340-41.) Ag ents also found

a loaded .44 caliber handg un in the Six th Street gar ag e and a loaded .45 caliber handg un in the master be droom. (

Id. at 320-23.)
P ROCEDURAL HISTORY Af ter Def endant was arr ested in Birming ham, Alabama on Aug ust 24, 200 7 , h e wa s transporte d to the Hamilton County J ail in Chattanoog a, Tenne ssee. On Aug ust 25, 2007, a criminal complaint ag ainst Def

endant was filed in the Easter n District of Tenne ssee. (R. 1.) On October 10, 2007, the g overnme nt filed a Second Superseding I ndictment. (R. 65.) Def endant was indicted for conspirac y to distribute coca ine and methamphetamine (Count One) an d conspi rac y to launder
money (Count Two). After his initial appea

ranc e befor e a United States Mag istrate J udg e, Def endant told Ag ent Melton that he wanted to talk with him. (R. 303 at 393-95.) Def endant was advised of his Miranda rig hts, but said he wanted to talk to Melton an y way . ( Id. ) During this discussion, Def endant confe ssed that he had been dealing coca ine since the beg inning of 2006. ( Id. at 397.) He stated that

4he lea

rned a bout the Sanchez Conspiracy throug h a fema le friend named Ely , and that he r ece ived his first shipment of three kilog rams of c ocaine from Gof f in Fe bruar

y 2007. ( Id. at 401-02.) During this confe ssion, Def endant also told Ag ent Melton about other source s of coca ine he had develope d in Alabama

. Def endant explained that he beg an dealing by g etting 5-8 kilogr ams on

a reg ular basis from “Corey ” and “Matt” in Birming ham. ( Id. at 399-401.) Although “Matt” has not been identified, “Corey ” is Corey Hollinshead (“H ollinshead”). Def endant told Ag ent Melton that when Hollinshead g ot arr ested in Aug ust 2006, he had to find another source of coca ine. ( Id. ) This
eventua lly led to Def

endant being put in touch with Sanchez. Def endant also discussed coca ine he purcha sed fr om Bo Ag ee (“A g ee” ) in B irmingha m. ( Id. at 402-03.) Def

endant purcha sed the two kilogr ams of coc aine f

ound at the Six th Street reside nce f rom Ag ee. On J anuar

y 15, 2008, Def

endant filed a motion t o s u p p re s s the sear ch of the Six th Street residenc e. U.S. Mag istrate J udg e Susan L ee held a suppression hear ing on J une 18, 2008, (R. 166), and on J uly 1, 2008 filed her Report and Recommenda tion (“R& R”) deny ing the motion. (R. 171.) J u d g e L ee conclude d that TFO Wigg ley ’s aff idavit prese nted sufficie nt evidenc e to estab l i s h probable cause for the sear ch of Def endant’ s residenc e, and pr ovided t he requisite nexus betwee n the alleg ed drug activity and the house. ( Id. at 15.) Additionally , J udg e L ee st ated that, even assuming there was not probable cause , Def endant’ s motion should be denied beca use the executing office rs’ conduct falls within the “g ood-fa ith exception” to the exclusionary rule articula ted by the United States Supreme Court in United States v. Leon , 468 U.S. 897 (1984). ( Id. at 16.) Chief J udg e Curtis Col lier adopte d J udg e L ee’ s R&R on Aug ust 11, 2008. (R. 196.) On October 2 3 , 2008, Def endant filed a mot ion in limine to prohibit the gover nment from introducing what he alleg ed was evidenc e of separ ate, unchar g ed conspirac ies to distribute coca ine

5in Birming ham, Alabama with Hollinshead and Ag ee (the “B irmingha m Conspiracies” ). Def

endant claimed that this evidence repr esente d a mater ial varia nce f rom the indicted Sanchez Conspiracy

. (R. 216.) His motion was denied by District J udg e Allan Edg ar. 1
On November 12 and 13, 2008, Def endant was tried by jury

. At the close of the prosec utor’s

case , Def endant moved for acquittal based on the materia l varia nce betwee n the evidenc e submitt ed to the jury

and the char g es alleg ed ag ainst him in the indictment. (R. 304 at 431-32.) The motion

was denied, and the case was submitt ed to the jury

. On November 14, 2008, the jury acquitted Def endant of the part of Count On e t h at ch arg ed him with conspirac y to distribute methamphetamine. (R. 305 at 2.) The jury , howeve r, fou n d De fe n d an t g uilty of conspirac y to distribute coca ine and conspirac y to launder money . ( Id

. ) On April 8, 2009, Def endant was
sentenc ed to life in prison pursuant to 21 U.S.C. § 851 b ec au s e o f three prior drug -fe lony convictions. (R. 271.) On April 20, 2009, Def endant filed this timely appea l arg uing that the district
court err ed by deny ing his motion in limine , by deny ing his motion to suppr ess the evidenc e found

as a result of the Six th Street sear ch, and by finding that venue was proper in the Easter n District of
T ennessee. (R. 276.) Eac h of Def endant’ s claims will be addre ssed in turn, but beca us e we fi n d

eac h to be without merit we AF F IRM the jury ’s conviction.

This case was tra

nsfer red from Chief J udg e Colli er to Judge Edg ar on October 24, 2008. 1 (R. 217.) I t appea

rs that J udg e Edg ar first considere d this motion during a discussion on the rec ord but not in the prese nce of the jury betwee n the judge and both sides’ attorney s befor e the Def endant’ s trial beg an. 6DISCUSSIO N

a. Defendan t’s M otion to Exclud e Evidence of the Birm ingh am Act ivities Def endant’ s first assig nment of err or is that the district court should have excluded evidenc e of Defenda

nt’s coca ine purchases that wer e not made i n connection with the S anche z Conspiracy beca use such evidenc e repr esente d a materia l and prejudicia l varia nce from the char g ed crime. The United States arg ues that Hollinshead and Ag ee wer e simply alterna tive suppliers in Fe ag an’s drug traff icking co n s pirac y , and, there fore , the evidenc e does not constitute a varia nce. Alterna tively ,
even if we wer e to find that there was a varia nce, the g overnme nt contends that the evidenc e was proper ly admitted under Rule 404( b) for the purpose of

demonstrating Def

endant’ s specific intent
to possess coca ine wi t h t h e intent to distribute. For the following rea sons, we aff irm the district court’s de cision to admit the disputed evidence

.

1. Was the Evidence Inadmissible Because It Constituted a Var iance? “T o obtain reve rsal of a conviction beca use of a varia

nce betwee n the indictmen t an d t h e evidenc e produce d at trial, a defe ndant mus t s at i s fy a two-prong test: (1) the varia nce must be demonstrated and (2) the varia nce must af

fe ct some substantial rig ht of the defe ndant.” United States v. Osborne , 545 F.3d 440, 443 (6th Cir. 2008) (quoting United States v. Prince , 214 F.3d 740, 757 (6th Cir. 2000)) (quota tion marks omitted). Whether a single or multipl e conspirac ies have been established is usually a question of fac t
to be deter

mined by the jury afte r rec eiving proper instructions. United States v. Rios , 842 F.2d 868, 872 (6th Cir. 1988) (quoting United States v. Grunsfeld , 448 F.2d 1231, 1238 (6th Cir.), cert. denied sub nom. Flowers v. United States , 434 U.S. 872 (1977))

. The jury ’s finding is revie wed on appea l

7in the light most favor able to the g overnme nt, howeve r, the question of wh ether a varia nce has

occur red is re viewed de novo

. United States v. Swafford , 512 F.3d 833, 841 ( 6th Cir. 2008). Even assuming that the evidenc e constituted a varia nce, the district court’s decision should be aff irmed beca

use the evidenc e’s admission did not aff ect Def endant’ s substantial rig hts. The fac t that a varia

nce has been demonstrated, standing alone is not per se prejudicia l. Osborne , 545 F.3d
at 443. “Where the evidenc e demonstrates only multipl e conspirac ies, a defe ndant is prejudice d if the err or of try ing mul tiple conspirac ies under a single indictment substantially influence d the
outcome of the trial.” United States v. Caver , 470 F.3d 220, 237 (6th Cir. 2006) (citing Kotteakos v. United States , 328 U.S. 750, 765 (1956)). We find that the varia

nce was not prejudicia l beca use there was overw helming evidenc e of Def endan t ’s gu i l t, aside from the di sputed tapes and coca ine. I ndeed, Defe ndant’s counsel found himself claiming as much while ar g uing tha t the evidenc e should not come in under Rule 404(b). When objecting to the admission of the rec ording s of the Birming ham drug deal befor e the start of the trial, Def

endant’ s counsel arg

ued “[t] hey don’t need it. They ’ve g ot plenty of proof based upon his a dmissions to Spec ial Ag ent J osh Melton within day s of his a rre st a bout w hat his involveme nt

was in this char g ed conspirac y .” (R. 302 at 6:5-8.) Then ag ain, he stated “my point on all of those issues raised by 404(b), knowledg e, intent, motive, all of those things, there is plenty of proof within the many para g raphs of his confe ssion about his involvement with Eloy Sanchez. They don’t need to roam into these other [] matter[s] .” ( Id. at 14:20-24.) Fur ther mitigating the prejudicia l eff ect of any varia

nce that might have occur red is the fac t that the judge issued an instruction to the jury about multipl e conspirac ies. This instruction clea rly explained that the jury could believe Def endant’ s arg uments that there wer e multipl e conspirac ies,

8that the jury should base a conviction upon that evidenc e if they found multipl e conspirac ies. J uries 2

are presumed to follow the instructions that they are g iven. United States v. Murphy , 241 F.3d 447, 451 (6th Cir. 2001). We hold that beca use there was such an abundanc e of other evidenc e, including the m ultiple rec orded phone ca lls between D efe ndant and Gof f, his prese nce a

nd arr est during the controlled buy , the evidenc e found as a result of the se arc h of the Six th Stre et residenc e, and most importantly

Def endant’ s confe ssion, any

err or wa s harmless. 2. Was the Evidence Adm issib le Under Rule 404(b)? Although the district court ultimat ely believed the evidenc e did not constitute a varia nce, J u dg e Edg ar still admitted the evidenc e, at least in part, on the basis of Rule 4 0 4 (b ). W h en 3
The following instructions reg arding multipl e conspira cies we re g iven to the jury : 2
Count 1 char g es that the defe ndant was a member of one single conspirac y to commit the crime of distributing methamphetami n e an d coca ine hy drochloride

. The defe ndant has arg ued that he was part of a conspirac y other than the one char g ed in Count 1. To convict the defe ndant under Count 1, the g overnme nt must convince y ou bey ond a rea sonable doubt that the defe ndant was a member o f t h e conspirac y char g ed in Count 1 of the indictment. I f the g overnme nt fails to prove this, then y ou must find the defe ndant not g uilty on Count 1, eve n if you find that he was a membe r of som e other conspiracy. Proof that the defe ndant was a member of some other conspirac y is not enoug h to convict. (R. 304 at 494:16-495:3 (empha sis added).) Upon Def endant’ s motion for acquittal base d on the allege d varia nce, J udg e Edga

r m ade 3 the following finding s: But let me just say this. I don’t think it’s 404(b), number one [because i t i s not a varia nce]. But if it is, I think it is r eleva nt be cause it has, it cer

tainly has to do with his intent. And, actua lly , it occur red during the time of the alleg ed conspirac y here , and the g overnme nt has to prove intent here

. And this is an incident wher e, clea rly , the defe ndant – there is evidenc e that the defe ndant was being provided a distribution amount of coca ine hy drochloride and in the half a brick that they split up there

. So, 9revie wing a lower court’s decision to admit evidenc e of other crimes, wrong s, or bad acts under Rule

404(b), the revie wing court must underta ke a three -step proce ss. See United States v. Merriweather , 78 F.3d 1070, 1074 (6th Cir. 1996). First, we examine the district court’s fac tual deter mination that the bad a cts ac tually

occur red unde r a c lear err or st andar d. Id. Next, we must review de novo the district court’s leg al finding that the evidenc e was admissible under Rule 404(b) fo r a l egitimate
purpose. Id. Finally , we must deter mine whether the dis t ri ct court abused its discretion in deter mining that the pr obative value of the e vidence is not substantially outweig hed by any unfair prejudice it c auses under Rule 403. Id. The parties do not dispute that the drug deals descr ibed in the rec orded phone calls that wer e play ed at Def endant’ s trial actua lly took place

. As a result, only the sec ond and third prong s require our attention.

A. Was the Evidence Adm itted for a P roper P urpose? Rule 404(b) inst ructs that “[e]vidence of other c rimes, wrong s, or ac ts is not admissible to
prove the ch ar ac t er o f a person in order to show that on a particula r occa sion the person acte d in

ac co rd ance with the char acte r. This evidenc e may be admissible for another purpose, su ch as prooving motive, opportunity , intent, prepa ration, plan, knowledg e, identity , absenc e of mistake or lack of acc ident.” FED

. R. EVI D. 4 0 4(b). I n Merriweather , this Court car efully explained the steps courts must take to ensure Rule 404(b) is proper ly applied. See 78 F.3d at 1076-77. I n order
to admi t ev i d ence under Rule 404(b), the proponent of the evidenc e must identify the specific
it’s for a pr oper purpose. I think that it did in fac t occur . We had the testimony of t h e police office r here about that. We had a tape, which memorialized the transac tion. And I don’t think that there is much, much of a question here as to 403 balanc ing of it. I mean, it is something which the g overnme nt has to prove. We’ve g ot a lot of evidenc e of coca ine transac tions in this case , which I don’t think that it’s unfairly prejudicia l to the defe ndant to have this piece of evidenc e come in. (R. 303 at 307:15-308:7.) 10purpose for which the evidenc e is b ei n g o ff ere d. Id. at 1076. Fur

thermore , that issue must be in dispute or a fac t that the statutory elements o f t h e cr i m e re q uire the g overnme nt to prove. Id. at 1076-77. I f it is, the court must then balanc e the probative value of the evidenc e ag ainst any unfair prejudice under Rule 403. Id. at 1077. The evidenc e may not be admitted if the probative value is substantially outweig hed by the dang er of unfair prejudice

. Id. ; see also FED

. R. EVI D. 403. I f Rule 403 i s satisfied, “the district court must ‘cle arly , simply , and corr ectly ’ instruct the jury as to the specific purpose for which they may consider the evidenc e.” Merriweather , 78 F.3d at 1077 (quoting United States v. J

ohnson , 27 F.3d 1186, 1193 ( 6th Cir. 1994)) (e mphasis in origina l). The prosec ution arg ued, and the district court ag ree d, that the evidenc e of Def endant’ s prior drug deals from the Birming ham Conspiracies was admi s sible for the purpose of demonstrating Def endant’ s specific intent. We ag ree . I n United States v. Johnson , 27 F.3d 1186 (6th Cir. 1994), we ex p l ained how to proper ly d et er m i n e wh ether prior acts are admissible to establish a defe ndant’s intent. Id. at 1191-93. Although intent is not put in issue ever y time a defe ndant pleads not g uilty , “[w]e rec og nize[ d] that there is a class of c ases in which intent is in issue prec isely beca use a specific intent, separ ate a nd
apar t f rom underly

ing pr ohibited conduct, is made an element of the crime char g ed.” Id. at 1192. One such ty

pe of crime is possession of coca ine with intent to distribute. Id. I n Johnson , we stated the following rule: “whe re there is thrust upon the g overnme nt, either by virtue of the defe nse raised by the defe ndant or by virtue of the elements of the crime char g ed, the aff irmative duty to prove that the under ly ing pr ohibited act was done with a specific c riminal intent, other ac ts evidence may be introduced u n d er Rule 404(b).” Id. Acc ording ly , the g overnme nt was permitted to prove Def endant’ s specific intent to dist ribute coc aine throug h evidenc e of prior acts. See U nited States

11v. Trujill o , 376 F.3d 593, 605 ( 6th Cir. 2004) (holding the second step in the Rule 404( b) ana ly sis

satisfied bec ause the defe ndant was c harg ed with a spe cific intent c rime).

B. Was the Evidence Adm issib le Under Rule 403? As we noted in Johnson , simply beca use the g overnme nt is permitted to introduce prior acts for the purpose of demonstrating the defe ndant’s specific intent to commit the c harg ed crime does
not mean such evidenc e will automatically be admitted. Johnson , 27 F.3d at 1192. The judge must still deter mine that th e p ro b ative value of such evidenc e is not substantially outweig hed by the dang er of unfair prejudice

. Id. ; see a l s o FED. R. EVI D. 404(b). We aff ord district court judge s “ver y broad disc r e ti o n in d e te rmining whether the dang er of undue prejudice outweig hs the probative value of the evidenc e.” United States v. Mack , 258 F.3d 548, 555 ( 6th Cir. 2001) (quoting United States v. Vance , 871 F.2d 572, 576 (6th Cir. 1989)) (quotation marks omitted). We use an abuse- ofdiscretion standard when revie wing a district court’s evalua tion of u n fair prejudice and probative value unde r Rule 403. Id. There are many considerations a judge should evalua te when deter mining whether to admit potentially prejudicia l e vidence

. “One fac tor in balanc ing unfair prejudice ag ainst probative value under Rule 403 is the availability of other means of proof.” Merriweather , 78 F.3d at 1077 (citing Huddleston v. United States , 485 U.S. 681, 688 (1988))

. Another consideration is whether the impermissible infere nces the jury might draw from the evidence will “drown out” the pe rmissible conclusions the jury is permitted to make under Rule 404(b). Id. This risk can be reduc ed by a clea r, concise limit ing instruction indicating the specific purpose for which the evidenc e is admissible. Id. We pr esume juries corr ectly follow instructions tha t a re g iven to the m. Murphy , 241 F.3d at 451. The amount of detail and specific ity with w hich the prior a cts are descr ibed impacts this a naly sis.

12See, e.g
. , United States v. Cano , No. 97-1428, 1998 WL 889772, at *5 (6th Cir. Dec

. 8, 1998)

(“F urthermor e, the limit ed nature of the evidenc e and the lack of specific ity preve nts a ny potential prejudice from outweig hing the probative na ture of the statement.”)

. The district cour

t judge conducte d the following Rule 403 balanc ing:
I don’t think that there is much, m uch of a question here as t o 403 balanc ing of it. I mean , i t i s s o m ethi ng which the g overnme nt has to prove. We’ve g ot a lot of evidenc e of coca ine transac tions in this case , which I d o n’t think that it’s unfairly prejudicia l to the defe ndant to have this piec e of e vidence come in. (R. 303 at 308:1-7.) The trial judge went on to of fer , “I can probably , if [defense counsel] w ant[s]

me to, I can g ive y ou a jury instructions which will cover other acts here

. I f that’s what y ou want.” ( Id. at 308:7-9.) At De fenda nt’s trial, the following jury instruction was g iven: You have hear d testimony that the defe ndant committed crimes t h at the defe ndant say s are other than the ones char g ed in the indictment. I f y ou find that the defe ndant did those other crimes, y ou can consider the ev idence only as it rela tes to the g overnme nt’s claim on the defe ndant’s intent. You must not consider it for any other purpose. Remember that the defe ndant is on trial here only for the crimes char g ed in the indictment, not for any other acts. Do not return a g uilty v er d i ct unless the g overnme nt proves the crimes char g ed in the indictment bey ond a rea sonable doubt. (R. 304 at 485:13-24.) Def endant’ s counsel did not object to these instructions afte r revie wing them befor e they

wer e provide d to the jury . ( Id. at 510:3-7.) Rely ing on our decision in Merriweather , Def endant arg ues that beca

use there wer e other
way s the g overnme nt could prove his spec ific intent, the district court err ed in r uling the evidenc e

was admissible. I n Merriweather , we reve rsed the defe ndant’s conviction for consp i ra cy to distribute coca ine beca

use the g overnme nt introduced tape rec ording s o f drug transac tions from conspirac ies that wer e s ep ar at e and distinct from the indicted conspirac y . See 78 F.3d at 1079.

13Whil e the fac ts of that case mirror the instant case in some respe cts, Merriweather is distinguishable

in many way s. First, one of the major issues we had in Merriweather was that the district court judge
g ave sever al conflicting and err oneous jury instructions reg arding what purposes the jury could use the tape r ecor dings f

or during its delibera tions. Id. at 1076. The trial court in t hat ca se instructed the jury that it could use the evidenc e for essentially all of the purposes stated in Rule 404(b) when

sever al of those wer e not i n i s s u e. Id. I n Merriweather , the district court’s final instructions permitted the jury to consider the inappropria tely admitted tapes fo r t h e purposes of opportunity , intent, prepa

ration, plan, knowledg e, identity , and absenc e of mistake when only identity and intent

wer e at issue. Id. at 1079. Fur thermore , the j u d ge’ s mid-trial instruction and final instruction
reg arding the “prope r purposes” for which the evidenc e could be used wer e differ ent. Id. at 1076. De fenda nt is corr ect that in Merriweather, we found the g overnme nt’s use of otherwise admissible audio tapes to establish that the identity of the speake r in those tapes was the defe ndant

was unfairly prejudicia l beca use the g overnme nt had other way s to prove his identity

. Id. at 1077. We stated, howeve r, that “a clea r and concise instruction identify ing for the jurors the specific
purpose for which the evidenc e was admissible” could have reduc ed the risk of unfair prejudice

. Id. Fur thermore , the district court in Merriweather failed to even conduct a Rule 403 balanc ing analy sis—a per se violation of Rule 404(b)’s a pplication. Id. at 1078. We find that in the case at bar, the district court’s clea r, concise , and leg ally corr ect limit ing instruction r educe d the risk of unfair prejudice to D efe ndant. We c annot conclude that the district
court abused its discretion in deter mining that t he probative value of the evidenc e was not substantially outweig hed by the dang er of unfair prejudice

. There fore , we AF F IRM its decision to admit the evidenc e of the Birming ham Conspiracie s under Rule 404(b)

.
14b. Defendan t’s M otion to Sup press the Sixth Stree t Searc h

Def endant arg ues that the district court err ed by deny ing his motion to suppress the evidenc e foun d as a re s u l t of the sear ch of his Six th Street residenc e. Specifica lly , he contends that the aff idavit issuing mag istrate judge relied upon when authorizing the war rant lacke d t h e nece ssary

nexus betwee n the drug -traf ficking alleg ations and the Six th Street house. Fur thermore , Def

endant
arg ues that the g ood-fa ith ex ception to the exclusionary rule doe s not apply

. “When revie wing the denial of a motion to suppress, we revie w a distric t court’s fac tual finding s for clea

r err or, while conclusions of law are revie wed de novo .” Murphy , 241 F.3d at 456. The evidenc e is viewed in the ligh t m o s t favor able to the g overnme nt. Id. Probable cause deter minations made by mag istrate judges a re g iven g rea t defe renc e, and a re only set aside if they

are “ar bitrarily exercised.” Id. at 457 (quoting United States v. W eave r , 99 F.3d 1372, 1376 (6th Cir. 1996)). For the following rea sons, we find that Def endant’ s arg uments are wi thout merit and AF F IRM the district court’s de cision to deny Def endant’ s motion t o suppress. 1. Did the Applyi ng Of fi ce r’s Aff

idavit Sup ply Enou gh Evid ence to Dem onstrate P robable Cau s e Existed to Search the Sixth Stree t Residence? T he Four th Amendment require s that “no Warrants shall issue, but upon probable ca u s e, supported by Oath or aff

irmation.” U.S. Const. amend. I V; see also United States v. Carpenter , 360 F.3d 591, 594 (6th Cir. 2004) (en banc)

. When assessing whether an affida v i t co n t ai ns sufficie nt evidenc e to establish proba ble ca use to issue a sea

rch w arr ant, [t ]he task of the issui n g m agi strate is simply to make a prac tical, common-sense decision whether , g iven all the circ umstances set forth in the aff idav i t b ef o re him, there is a fair probabilit y t h at co n t ra band or evidenc e of a crime will be found in a particula r place

. And the duty of a re v i ew i n g co urt is simply to ensure that the mag istrate had a

substantial basis for conc luding that pr obable c ause e x isted.

15Carpenter , 360 F.3d at 594 (quotin g Il l i n ois v. Gates , 462 U.S. 213, 238-39 (1983))

. I n order to

s an ct i o n a sear ch, the aff idavit must demonstrate that there is a “nexus betwee n the place t o b e

sear ched and the evidenc e soug ht.” Id. (quoting United States v. Van Shutters , 163 F.3d 331, 336-37 (6th Cir. 1998)). The aff

idavit must sug g est that there is probable cause to believe that the specific things to be sear ched for and seized will be found there , and not mere ly that t h e o wn er o f t h e proper ty is suspe cted of a c rime. United States v. McPhe arson , 469 F.3d 518, 524 (6th Cir. 2006) (quoting Zurcher v. Stanford Daily , 436 U.S. 547, 556 (1978))

. Def endant arg

ues that the aff

idavit submitt ed by TFO Wigg ley failed to establish the requisite nexus b etween the evidenc e of drug traff icking soug ht to be found and the Six th Street reside nce. I t is well established that if there is pr obable cause to suspe ct an individual of being an ong oing drug traff

icker , there is a sufficie nt ne x us betwee n the evidenc e soug ht a nd that individual’s home. See, e.g. , United States v. Gunter , 551 F.3d 472, 482 (6th Cir. 2009) (“[A] sufficie nt nexus

was provided by the infere nce that evidenc e of drug traff icking would be found at the residenc e of

one who is eng ag ed in ong oing drug traff icking .”); United States v. Goward , 188 F. App’x 355, 358- 60 (6th Cir. 2006); United States v. Miggins , 302 F.3d 384, 393-94 (6th Cir. 2002) (re versing the district court’s finding that there was no proba ble ca use and holding that it is reasonable to infer a drug deale r keeps drug s and evid en ce of drug distribution at his home, even though no drug traff icking is seen there ); United States v. Jones , 159 F.3d 969, 975 (6th Cir. 1998) (quoting United States v. L amon , 930 F.2d 1183, 1188 (7th Cir. 1991)) (“[I ]n the case of drug deale rs, evidence is likely to be found whe re the deale rs live[.] ”).
I n Gunter , the g overnme nt prese nted the issuing mag istrate judge with evidenc e that Gunter
repe atedly purcha sed sever al kilogr ams of coca ine. 551 F.3d at 481. We held t h at , as a result of

16these larg e and sustained transac tions, it was re as o n able to conclude that Gunter was eng ag ed in

o n go i n g drug traff

icking , and acc ording ly , that it was rea sonable to infer that evidenc e of s u ch activities would be found in his home. Id.
I n Goward , we held that an affidavit containing cre dible and verifie d alleg ations that the defe ndant is eng ag ed in drug traff icking , verific ation that the defe ndant lives at a particula r addre ss, and an aff iant-off icer ’s experienc e and familiarity with the habits of drug traffic kers can establish probable cause to sear ch the defe ndant’s residenc e despite the fac t that there was no evidenc e o f criminal wrong doing oc curr ing at the home. 188 F. A pp’x at 358-60. Def endant arg ues that we should find that the aff idavit did not provide the nece ssary nexus based on our dec i s ion in McPhe arson ,. I n McPhe arson , the defe ndant was arr ested for assault outside of hi s home pursuant to an ar rest wa rra nt. 469 F.3d at 520. While perf orming a pat-down

sear ch incident to the defe ndant’s arrest, an office r l ocate d a sm all amount of cr ack c ocaine in his front pocket. Id. After the defe ndant ref used the o ff

i cer s permission to sear ch his house, they obtained a se arc h war

rant ba sed on the c rac k found during the ar rest. Id. at 521. We affir med the trial court’s decision to suppress the evidenc e found as a result of the sear ch beca use the submitt ing office r’s aff

idavit did not establish a nexus betwee n the place to be sear ched and the evidenc e to be
soug ht. Id. at 524. McPhe arson , howeve r, does not aid Def endant’ s cause , and, in fac t, a car eful rea ding of the

case only reinfor ces our decision t o af fi rm t h e district court. I n McPhe arson , we drew a sharp distinction between the de fenda nt in that case—w ho was a rre sted for a ssault, a

nd found with only

a small a mount of drug s on his pe rson—and suspects believed to be ong oing drug traff icker s. See id. Although the prosec utor in McPhe arson cited sever al case s wher e we found probable cause of

17drug traff

icking sufficie nt to prov i d e a nexus betwee n evidenc e of drug dealing and the suspect’s home, we stated “[b]ut in all those case s, the aff idavits contained a

n additional fac t that permitted the mag istrate to draw the infere nce that evidenc e of wrong doing would be found in the defe ndants’ homes—namely , the independe ntly corr oborate d fac t that the defe ndants wer e known drug dealers at the time the police soug ht to searc h their homes.” Id. (empha sis added)

. Def endant also direc ts the C ourt’s attention to United St ates v. Frazier , 423 F.3d 526 (6th Cir. 2005), in which we stated that none of our case s “supports the proposition that the defe ndant’s
status a s a drug deale r, standing alone g ives rise to a fair probability that drug s will be found in his home.” Id. at 533. Although such lang uag e seems to support Def endant’ s arg ument, the rea son why we he ld the aff

idavit in Frazier

insufficient to establish proba ble ca use to sear ch a suspe cted dr ug deale r’s house was beca

use it was based solely on the uncorr oborated alleg ations of unidentified informants. Id. at 532-33. I ndeed, immediately aft er the previously quoted lang uag e this Court explained: Where, as here , the war rant aff idavit is bas ed almost exclusively on the uncorr oborate d testimony of unproven confide n tial informants (none of whom witnessed illega l activity on the premises of the proposed sear ch), the alleg ation that the defe ndant is a drug deale r, without more, is insufficient to tie the alleg ed criminal activity to the defe ndant’s re sidence

. Id. at 533; see also United States v. Bethal , 245 F. App’x 460, 474-75 (6th Cir. 2007) (McKe ag ue, J ., dissenting) (explaining that verifie d evidenc e of ong oing drug traff icking provides the requisite nexus, but uncorr oborate d alleg ations of drug dealing or evide nce of

drug use or possession alone do not).

18Her e, there was suffi ci en t corr oborate d evidenc e for the apply ing office r and issuing

mag istrate to believe that Def endant was an ong oing drug traff icker

. The aff

idavit offe red a detailed 4

acc ount of Ag ent Melton and the DEA’s investiga tion of Def en d an t

. (R. 108-1 at 6-7.) TFO Wigg ley descr ibed the rec orded phone calls betwee n Goff and Def endant, how Def

endant fled from the controlled buy , and his arr est. ( Id. ) Although the aff

i d av i t re fe rs to Goff only as the DEA’s “Source of I nformation,” all of the information he provid ed was independe ntly verifie d by law enfor ceme nt a g ents—indeed, Goff w as ca lling De fenda nt from the DEA ’s offic e in Chattanoog a. Moreove r, additional evidenc e streng thens the nexus betwee n the evidenc e being soug ht and Def endant’ s Six th Street home. Offic ers first linked Def endant to the Six th Stre et ad d ress by looking up the reg istration for the g ree n Honda Accor d Def en dant was driving to the s cene of t he expected drug b u s t

. The vehicle was reg istered to Anita Murdock. When ag ents spoke to Ms. Murdock, she informed them that the car belong ed to her daug hter, Oronda Bullar d Fe ag an. She also told office rs that Ms. Fe ag an and Def endant drove the car and lived toge ther at the Six th Street addre ss. Ag ents arr ived at the Six th Street addre ss and found that no one was there

. Eventually , Ms. Fe aga n came home. She stated that she and Def endant lived there and that Def endant kept hi s clothes and other belong ings in the house. Def endant also had a 2007 GMC Yukon SUV reg istered in his name at the Six th Street addre ss. All of this information was contained in TFO Wigg ley ’s aff idavit. (R. 108-1 at 7.) As a result, the aff idavit contained probable cause that Def endant was a drug traff icker and more than enoug h evidenc e to verify that he lived at the Six th Stre et residenc e.

Def endant does not asser

t that there are any misrepre sentations in the aff idavit or that TFO 4 Wigg ley knowing ly

or intentionally

misled the mag istrate judg e. (R. 171 at 9 n.6.)

19We c onclude that these fac ts, c oupled with TFO Wigg ley ’s opinion that drug deale rs often

keep drug s and other evidenc e of drug traff icking in their homes, provided sufficie nt probable cause and t he requisite nexus to justify the sear ch of the Six th Street home. Be cause we find there was probable cause to support issuing the sear ch war rant, we need not eng ag e in a g ood-fa ith exception analy sis under Leon

.
c. Venue Finally , Def

endant claims that beca

use he never enter ed Tenne ssee, and beca use there is no evidenc e of any action, activity , or conduct on his part in that state, the Easter n District of Tenne ssee

was an inappropria

te venue. We find this arg ument to be without merit, and addre ss it only briefly

. Venue is proper in the state or district wher e the offe nse wa s co m m itted. “F or drug conspirac ies, venue is proper in any district wher e the conspirac y was formed or wher e an overt act in further ance of the conspirac y was perf ormed.” United States v. Crozier , 259 F.3d 503, 519 (6th Cir. 2001); see also United States v. W ill i a ms , 2 7 4 F.3d 1079, 1083-84 (6th Cir. 2001) (quoting United States v. Scaife , 749 F.2d 338, 3 4 6 (6th Cir. 1984)). The defe ndant does not need to phy sically be prese nt in the district at any time if this standard is satisfied. Crozier , 259 F.3d at 519. Although Def

endant may never have stepped foot in Tenne ssee, there are many examples of
overt acts that wer e committed in further ance of the conspirac y by his co-c onspirators in the Easter n District of Tenne ssee. For example, one of Def endant’ s co-c onspirators, David Rector, rec eived

coca ine shipments in Tenne ssee. Addi tionally , Sanchez trave led into Tenne ssee afte r picking up $38,000 from Def

endant. (R. 303 at 405-06.) I n fac t, Def endant called Sanchez the day afte r he left for Tenne ssee to make sure he made it in safe ly

. ( Id. at 410.) Sanchez was arr ested in a Tenne ssee motel located in the Easter n District of Tenne ssee, a short time later. ( Id. ) These fac ts are sufficie nt

20to establ i s h the Eastern District of Tennessee as a proper venue (albeit not the only proper venue)

to try Def endant’ s case in. CONCLUSION For the rea sons stated above, we AF F IRM the jury ’s verdic t and t he district court
proce eding s below.

21