NOT RECOMMENDED FOR FULL-TEXT PUBLICATION File Name: 17a0646n.06
Case No. 17-1006
UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT

UNITED STATES OF AMERICA, Plaintiff-Appellee,

v. DWAYNE TOLAND, Defendant-Appellant. ) ) ) ) ) ) ) ) ) ON APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF MICHIGAN

BEFORE: SILER, WHITE, a nd THAPAR, Circuit Judges. THAPAR, Circuit Judge. A jury convicted Dwayne Toland of conspiring to distribute heroin. He raises a bevy of challenges to his conviction and sentence. Since none of them have merit, we affirm.
I. Drug empires are hard to build. Dwayne To land, however, hoped to ge t a “little empire rolling.” R. 125-1, Pg. ID 1173. So he joined forces with Bernardo Sa ntana, the kingpin of a heroin-trafficking enterprise based out of the Do minican Republic. Santana would procure large quantities of heroin and split them among multiple distributors in Detroit, including Toland. Toland would then broker sales to Detroit-area buyers. But unlike diamonds, drug empires do not last forever. Eventually, the government catches on. And this case was no different; the government began an inve stigation of SantanaCase No. 17-1006 United States v. Toland

- 2 - that ultimately included wiretapping his phone. The wiretap captured numerous conversations between Santana and Toland. In these convers ations, Santana and Toland discussed several heroin deals—past, pres ent, and future. Nowhere in these conversations did Santana or Toland say “heroin.” Rather, they spoke cryptically, discussing whether Sa ntana should procure three “pers on[s]” or “a lot of family,” id. at Pg. ID 1175, the availability of “documents,” e.g. , id. , and Toland’s friend’s complaint that “what he had got . . . was a little damp and stuff” and that “it was moist,” id. at Pg. ID 1218. But as DEA agent Jared Sullivan explained to the jury, these words and phrases are part of a narcotics-trafficking code. Hero in traffickers “seldom, if ever,” actually mention heroin by

name. See R. 98, Pg. ID 497. Instead, “people” and “family” represent kilogram quantities of the drug, while “documents” is code for money. And Toland later confessed that the complaints of moistness referred to the heroin. The wiretap also recorded conversations both with and regarding Burton Norfleet, another distributor in Detroit. Norfleet’s name first came up when Santana called Toland hoping to send “three or more . . . family.” R. 125-1, Pg. ID 1175. In response , Toland said he was “trying to find out a little more info about . . . Burt” because “[Burt] just kind of threw [him] off.” Id. at Pg. ID 1175–76. Santana shar ed his skepticism. But some thing must have transpired to assuage Santana’s concerns. He later sought Toland’s help in finding Norfleet, who had gone missing. Santana called Toland to get Norfleet’s number. But Toland did not have the number on hand and needed to go home to look for it. So Santana told him to contact Norfleet when he found the number and have him cal l Santana. But by the time Tola nd let Santana know he could not find the number, Norfleet ha d already called Santana, expl aining that he had been on vacation. The two then arranged for Sant ana to send Norfleet “two persons.”Case No. 17-1006 United States v. Toland

- 3 - In addition to the wiretap, the government presented evidence of Toland’s role in a transaction involving Ernesto Lebron. Lebron test ified about an instance in which Santana instructed him to deliver three ki lograms of heroin to Javier Mart inez, one of Santana’s couriers. Lebron and Martinez drove the heroin, hidden in a jeep, to Detroit. Once there, Martinez took the jeep to Toland, who housed it in his garage. The jeep remained in Toland’s garage overnight while Toland came and went. Shortly after Mart inez retrieved the jeep, DEA agents stopped and searched it. They discovered $133,000 in cash hidden inside.
Phone records had revealed th at Norfleet and Toland were in contact immediately before Martinez and Lebron’s trip to Detroit. So, susp ecting that Toland may have delivered some of the heroin to Norfleet, agents ex ecuted a search warrant at Norf leet’s home. They found nearly 800 grams of heroin, roughly $20,000 cash, scales, a vacuum sealer, an electric money counter, and a gun. Agents could have searched Toland’s house the same day. But they were concerned that Santana might realize they were onto him if they did. The agents therefore elected to wait twoand-a-half months before they temporarily detained Toland and searched his home. When they did, they recovered a digital scale, a vacuum sealer and vacuum-sealer bags, a money counter, Latex gloves, and five guns. Several years then passed before the government sought charges against Toland, evidently to permit the investigation to proceed toward arrest and apprehension of Santana himself. Around this time, a DEA agent intervie wed Toland. According to the agent, Toland admitted to knowing Santana since the 1990s and “broker[ing] heroin transactions” between Santana and a friend. R. 101, Pg. ID 705–06.Case No. 17-1006 United States v. Toland

- 4 - A grand jury indicted Toland, Norfleet, and two others with conspiring to possess and distribute heroin, along with othe r charges. After Norfleet r eached a plea agreement with the government, the government filed a superseding i ndictment naming Toland alone. At trial, a jury acquitted Toland of a gun charge but found hi m guilty of conspiracy. The judge sentenced him to 140 months’ imprisonment, based in part on a finding that Toland ’s offense involved at least three kilograms of he roin. Toland now appeals.
II. Sufficiency of the Evidence . As an initial matter, Toland challenges the sufficiency of the evidence. To convict a defe ndant of conspiracy under 21 U.S.C. §§ 841(a)(1) and 846, the government must prove “(1) an agreement to viol ate drug laws, (2) knowledge and intent to join the conspiracy, and (3) particip ation in the conspiracy.” United States v. Wettstain , 618 F.3d 577, 584 (6th Cir. 2010) (quoting United States v. Gibbs , 183 F.3d 408, 420 (6th Cir. 1999)). In reviewing this challenge, we view the evidence in the light most favorable to the government, and decide whether “ any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.” Jackson v. Virginia , 443 U.S. 307, 319 (1979). Toland does not challenge the existence of th e Santana conspiracy. Instead, he claims that he did not know of or part icipate in the conspiracy and th at the government convicted him for nothing more than “guilt by association.” Th e evidence says otherwise. Toland regularly brokered large transactions on Santana’s behalf, sometimes receiving heroin on credit. See United States v. Robinson , 547 F.3d 632, 641 (6th Cir. 2008) (obser ving that repeat transactions, the quantity of drugs involve d, and credit-based transactio ns are probative of knowing participation in a drug conspira cy). The search of his house produced items consistent with heroin trafficking. And the evid ence also connected Toland to Norfleet and Lebron, illustratingCase No. 17-1006 United States v. Toland

- 5 - that Toland knew Santana’s operation in Detroit was bigger than himself and that he participated in it. While Toland may not have known everyone involved, he did not have to in order to be guilty of conspiracy. Id. The evidence was therefore sufficient to support his conviction. Co-Conspirator Statements . Toland next maintains that certain out-of-court statements of his co-conspirators were inadmissible. Ov er his objection, the dist rict court permitted the government to introduce wiretap recordings of Norf leet’s conversations with Santana, as well as Lebron’s testimony that Santana told him to give heroin to Martinez. In both instances, the district court admitted the statements under Federal Rule of Evid ence 801(d)(2)(E)—which excepts certain co-conspirator statements from th e rule against hearsay—but failed to make the preliminary findings that Rule 801(d)(2)(E) requires. These findings are that “(1) the conspiracy existed; (2) the defendant was a member of the conspiracy; and (3) the co-conspirator made the proffered statements in furtherance of the conspiracy.” United States v. Warman , 578 F.3d 320, 335 (6th Cir. 2009). The government must esta blish these findings by a preponderance of the evidence. Id. And when a district court fails to ma ke these findings, remand is necessary unless we can “conclude with confidence” that the government sustained its burden. Id. at 336–37. The first two requirements are easily met. Toland’s conversations with Santana, Toland’s admissions, and the evidence recovered at Toland ’s house prove that a conspiracy existed and Toland was part of it. This leaves the third requirement: that Norfleet and Santana made the statements at issue in furtherance of the conspir acy. A statement is made in furtherance of the conspiracy if the speaker makes it in orde r to promote the conspiracy’s objectives. Id. at 338. Here, Norfleet told Santana that he needed tw o “persons” and that his “money is always right and fresh.” R. 125-1, Pg. ID 1210, 1212. And Santan a told Lebron to give heroin to Martinez, who then took it to Toland. Bo th co-conspirators’ statements , therefore, were made inCase No. 17-1006 United States v. Toland

- 6 - furtherance of the conspiracy. See United States v. Martinez , 430 F.3d 317, 327 (6th Cir. 2005) (explaining that “[s]tate ments that prompt a coconspirator to act in a matter that facilitates the carrying out of the conspiracy” are made in furt herance of the conspiracy). Thus, while the district court erred in failing to make th e necessary findings under Rule 801(d)(2)(E), we conclude with confidence that it would have.
Variance . Toland further argues that the government produced evidence of multiple conspiracies that varied from the single conspi racy alleged in the i ndictment. If such a “variance” occurred and prejudiced Toland, he would be entitled to reversal of his conviction. United States v. Hughes , 505 F.3d 578, 587 (6th Cir. 2007). But the time to raise a variance is at trial, United States v. Wilson , 168 F.3d 916, 923 (6th Cir. 1999), which Toland failed to do. So he is entitled to relief only if he can show plai n error—one that “seriously affect[s] the fairness, integrity, or public reputation of judicial proceedings.” Id. (quoting United States v. Olano , 507 U.S. 725, 732 (1993)). The number of conspiracies depends upon whether a common goal united coconspirators, the nature of th eir scheme, and the overlap of participants among dealings and transactions. Warman , 578 F.3d at 341–42. We view the evid ence in the light most favorable to the government. Id. at 342. According to Toland, the gov ernment proved distin ct conspiracies between Toland and Santana, Santana and No rfleet, and Santana and Lebron. But the government’s evidence was sufficient to establish a common goal (distributing heroin in Detroit from Santana down), a scheme to achieve it, and overlap among Santana, Toland, Norfleet, and Lebron. The evidence, therefore, does not plainly esta blish a variance. Expert Testimony . Toland’s final trial-related challenge is to the testimony of DEA agent Jared Sullivan. Recall that Sullivan’s testimony aimed to decipher coded wiretap recordings—toCase No. 17-1006 United States v. Toland

- 7 - suggest, for example, that “three persons” meant “three kilograms of heroin.” Toland objected that Sullivan was not qualified to testify as an expert, that his testimony was unhelpful to the jury, and that it was irrelevant. The judge overr uled the objections, which Toland renews here. We review the judge’s rulings for abuse of discretion. United States v. Kilpatrick , 798 F.3d 365, 378 (6th Cir. 2015). Sullivan, an eleven-year DEA veteran with extensive experience investigating narcotics conspiracies and conducting wiretaps, was qualified. E.g. , United States v. Lopez-Medina , 461 F.3d 724, 743 (6th Cir. 2006) (holding that an agen t with less experience wa s qualified to give expert testimony on drug trafficking). His testim ony was both reliable and helpful to the jury.
See United States v. Johnson , 488 F.3d 690, 698 (6th Cir. 2007) ( observing that expert testimony interpreting drug traffickers’ “code s[] and jargon” is helpful just as “a trained observer on the baseball diamond might be able to point out the bunt sign among an array of otherwise meaningless scratches and touches by the third base coach”). And the testimony was relevant because it tended to make more probable that the conversations, which contained numerous code words, were about heroin trafficking. That in turn increased the likelihood that Toland was involved in a heroin-trafficking c onspiracy. Fed. R. Evid. 401. The district court did not abuse its discretion in admitting Sullivan’s testimony. Toland also says the district court erred in pe rmitting Sullivan to testify both to his expert opinion and the facts of the case. When law-en forcement agents testify in such a dual role, courts must ensure that the jury does not get confused by their dual role. United States v. Rios , 830 F.3d 403, 414 (6th Cir. 2016), cert. denied , 137 S. Ct. 1120 (2017) (mem .). To do so, courts should provide a cautionary instru ction or ensure there is a “cl ear demarcation” between the witness’s fact and opinion testimony. United States v. Ham , 628 F.3d 801, 806 (6th Cir. 2011)Case No. 17-1006 United States v. Toland

- 8 - (quoting United States v. Smith , 601 F.3d 530, 540 (6th Cir. 2010)). Here, th e trial judge gave a detailed cautionary instruction delineating Sulliv an’s dual roles before his testimony and echoed the instruction before deliberations. In addition, the prosecutor clearly demarcated Sullivan’s testimony on direct examination into broad sections of fact and expert opinion. And to further aid the jury, he regularly prefaced questions with “[b]ased on the inves tigation” and “[i]n your training and experience” in order to si gnal the type of testimony sought. E.g. , R. 98, Pg. ID 483, 498. In light of the judge’s in structions and the prosecutor’s clear demarcation, there was no abuse of discretion in permitting Sullivan’s dual testimony. Speedy Trial . In addition to perceived flaws at tria l, Toland raises three arguments that his trial did not begin soon enough. Precedent foreclos es the first two, and the third is premature. Toland first argues that too much time pa ssed between the time he was temporarily detained in connection with the search of his home and his indictment. He points to Section 3161(b) of the Speedy Trial Act, under which an indi ctment must be filed within thirty days of arresting the individual “in c onnection with such charges.” 18 U.S.C. § 3161(b). As he concedes, however, longstanding precedent estab lishes that his temporary detention does not constitute an “arrest” for purpos es of the Speedy Trial Act. See United States v. Salgado, 250 F.3d 438, 454 (6th Cir. 2001) (“A defendant is not ‘arrested’ for purposes of the Speedy Trial Act until formal federal charges are pending.”). Formal charges were not pending at the time of Toland’s detention. And so we must reject this argument. See Salmi v. Sec’y of Health &
Human Servs. , 774 F.2d 685, 689 (6th Cir. 1985) (noting that a prior panel decision is controlling absent an inconsistent Supreme Court decision or this court overruling the decision en banc). Toland next attempts to invoke his Sixth Ame ndment right to a speedy trial. But this second argument fails for similar reasons. At the time of Toland’s detention, criminalCase No. 17-1006 United States v. Toland

- 9 - proceedings had not been initiated against hi m, and his Sixth Amendment right had not yet attached. United States v. Loud Hawk , 474 U.S. 302, 310 (1986); United States v. Sanders , 452 F.3d 572, 579 (6th Cir. 2006). Toland concedes as much in his reply brief. Toland’s third argument is that his trial did not begin within seventy days in violation of Section 3161(c) of the Speedy Trial Act. 18 U.S.C. § 3161(c)(1). He acknowledges, however, that his counsel forfeited this argumen t by failing to raise it below. See id. § 3162(a)(2). Toland therefore repackages the claim as one of ineffective assistance of counsel. But ineffectiveassistance claims are premature on direct appeal “e xcept in rare cases where the error is apparent from the existing record.” United States v. Wells , 623 F.3d 332, 348 (6th Cir. 2010) (quoting Lopez-Medina , 461 F.3d at 737). Here, it is not. E ach side presents plausible arguments concerning whether a Speedy Trial Act violation occurred and, if so, whether that error would result in dismissal of the indictment with prejud ice. Not only that, but without an evidentiary hearing, we cannot determine whether any alleged error by Toland’s counsel is attributable to reasonable trial strategy or is constitutionally problematic. See id. We therefore decline to address Toland’s ineffective-assistance argument.
Sentence . Finally, Toland challenges his sentence. He claims that the district court based his sentence on too large of a qua ntity of heroin: at least three kilograms. But for sentencing purposes, a drug quantity need only be establis hed by a preponderance of the evidence, and estimates are permitted. Warman , 578 F.3d at 351. And in making this estimate, the court can include amounts related to reasonably fores eeable transactions of co-conspirators. United States v. Okayfor , 996 F.2d 116, 120–21 (6th Cir. 1993) (per curiam)

. We review the district court’s finding for clear error. Warman , 578 F.3d at 350.Case No. 17-1006 United States v. Toland

- 10 - The record supported the district court’s finding that Toland ’s offense involved at least three kilograms of heroin. In one recorded phone call, Santana told Toland that he wanted to send at least three kilograms of heroin. Toland asked fo r all three kilograms. In addition, Lebron testified that he transported three kilo grams from Chicago to Detroit, where Toland housed it in his garage. And in another transac tion, Toland agreed to have Norfleet contact Santana. Norfleet requested tw o kilograms from Santana. Thes e latter amounts were reasonably foreseeable to Toland, given his pa rticipation in the transactions a nd his history of dealings with Santana and Norfleet. To that end, while Toland did no t know the specific details of Norfleet and Santana’s arrangement, he knew the quantities of heroin in which Santana typically dealt and Santana’s likely purpose in contac ting Norfleet. Thus, the district court did not clearly err in determining that Toland’s offense more likely than not involved at l east three kilograms of heroin.
* * *
We AFFIRM Toland’s conviction and sentence.