[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

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No. 12-14929

Non-Argument Calendar

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D.C. Docket No. 7:12-cr-00003-HL-TQL-1

UNITED STATES OF AMERICA, 

 Plaintiff-Appellee,

versus

MARTIN TERRELL TILLMAN,

a.k.a. Bo Gator, 

a.k.a. Gator,

 Defendant-Appellant.

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Appeal from the United States District Court

for the Middle District of Georgia

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(August 29, 2013)

Before CARNES, Chief Judge, BARKETT and BLACK, Circuit Judges.

PER CURIAM:

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Martin Tillman appeals his conviction and sentence of life imprisonment, 

imposed after his conviction by jury trial for one count of conspiracy to possess 

with intent to distribute more than five kilograms of cocaine, in violation of 

21 U.S.C. §§ 841(a)(1), (b)(1)(A)(ii), and 846. Tillman asserts several issues on 

appeal, which we address in turn. After review, we affirm Tillman’s conviction 

and sentence.

Transcripts

Tillman first contends the district court erred in allowing the jury to consider 

transcripts of recorded telephone conversations during its deliberations in the jury 

room without the accompanying recordings. 

District courts have “the authority to allow juries to read properly 

authenticated transcripts while listening to taped conversations.” United States v. 

Garcia, 854 F.2d 1280, 1283 (11th Cir. 1988). “[T]he use of a transcript as a guide 

is analogous to the use of expert testimony as a device aiding a jury in 

understanding other types of real evidence.” United States v. Onori, 535 F.2d 938, 

947 (5th Cir. 1976).1

 The proper protocol in this Circuit when a party disputes the 

accuracy of a transcript is for “each side [to] produce its own version of a transcript 

or its own version of the disputed portions. In addition, each side may put on 

 1

 In Bonner v. City of Prichard, 661 F.2d 1206, 1209 (11th Cir.1981) (en banc), this 

Court adopted as binding precedent all decisions of the former Fifth Circuit handed down prior 

to close of business on September 30, 1981. 

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evidence supporting the accuracy of its own version or challenging the accuracy of 

the other side’s version.” United States v. Hogan, 986 F.2d 1364, 1376 (11th Cir.

1993) (quotations omitted) (concluding a defendant’s claim of error failed because 

he did not offer his own transcript and did not point out inaccuracies in the 

government’s transcript). “A district court need not find that the transcript is 

perfectly accurate prior to its admission.” Id. However, in order for transcripts to 

be admitted into evidence, “there must be some evidence that the transcripts are 

accurate[,] that the words are accurately reproduced[,] and the voices accurately 

identified.” United States v. Rochan, 563 F.2d 1246, 1251 (5th Cir. 1977).

It is not error to allow a transcript to go into the jury room unless the 

defendant demonstrates the transcript either is inaccurate or causes him specific 

prejudice. United States v. Williford, 764 F.2d 1493, 1503 (11th Cir. 1985). 

“[T]ranscripts are evidence admissible to assist the jury in identifying speakers, 

and . . . absent anything more than a generalized claim of prejudice, we will not 

find error in the transcripts being allowed in the jury room.” United States v. 

Nixon, 918 F.2d 895, 901 (11th Cir. 1990) (citations omitted). 

The district court did not abuse its discretion in allowing the jury to consider 

the transcripts of recorded telephone conversations. See United States v. Hawkins, 

905 F.2d 1489, 1493 (11th Cir. 1990) (reviewing an evidentiary ruling for an abuse 

of discretion). Agent Jim Grady and Sergeant Rob Picciotti testified the transcripts 

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they prepared were accurate to the best of their abilities, thus satisfying the 

requirement that “there must be some evidence that the transcripts are accurate[,] 

that the words are accurately reproduced[,] and the voices accurately identified,” 

see Rochan, 563 F.2d at 1251. Further, throughout the trial, Tillman did not object 

to the admission of any of the transcripts prepared by the Government. 

On two occasions, however, Tillman challenged the accuracy of the 

transcripts through cross-examination. On cross-examination, DEA Special Agent

Rufus Wallace acknowledged that one of the transcripts contained notations 

indicating that, at certain points in one of the recorded conversations, Isaac Camon 

was speaking “to Tillman,” but Tillman was not on the recording, and Wallace 

could not say that Camon was actually addressing Tillman at those points. Second, 

Christopher Phillips acknowledged on cross-examination that, as shown on one of 

the video recordings of his interactions with Tillman, he had spoken with Tillman 

about HGH, but this did not appear in the accompanying transcript. 

The Government effectively negated Tillman’s first challenge by eliciting 

testimony from Wallace that, on the recording, Camon indicated he was speaking 

to “Gator,” Tillman’s nickname. As for the second challenge, the inaccuracy in the 

Phillips transcript cannot translate the district court’s decision to allow the 

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transcript into the jury room into error because Tillman makes no more than a 

generalized claim of prejudice. See Nixon, 918 F.2d at 901.2

 

Drug quantity finding

Tillman challenges his base offense level of 38 under U.S.S.G. 

§ 2D1.1(c)(1) on the grounds that (1) the district court failed to make an explicit 

finding of the quantity of drugs for which he was responsible, and (2) the 

calculation in the presentence investigation report (PSI) of the quantity of drugs 

involved in his offense was speculative. We review for clear error the district 

court’s findings of fact supporting a sentence, including its determination of the 

drug quantity attributable to a defendant. United States v. Almedina, 686 F.3d 

1312, 1315 (11th Cir.), cert. denied, 133 S. Ct. 629 (2012). A factual finding at 

sentencing is clearly erroneous when “although there is evidence to support it, the 

reviewing court on the entire evidence is left with the definite and firm conviction 

that a mistake has been committed.” United States v. Barrington, 648 F.3d 1178, 

1195 (11th Cir. 2011), cert. denied, 132 S. Ct. 1066 (2012). 

 2

 In any event, even if the court erred in allowing that particular transcript into the jury 

room, the error was harmless because the court instructed the jury the recordings were the real 

evidence and the jury could re-listen to the recordings if it wished to do so. Moreover, the issue 

of the Phillips transcript’s inaccuracy was squarely before the jury during Tillman’s closing 

argument. Finally, given the relatively tangential nature of Phillips’ testimony, and the 

overwhelming evidence of guilt presented by the testimony of the remaining witnesses, any 

consideration by the jury of the possibly inaccurate transcript “had no substantial influence on 

the outcome,” and, therefore, reversal is not warranted. See Hawkins, 905 F.2d at 1493 

(“[W]here an error had no substantial influence on the outcome, and sufficient evidence 

uninfected by error supports the verdict, reversal is not warranted.”).

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For sentencing purposes, the government bears the burden of establishing 

drug quantity by a preponderance of the evidence. United States v. Rodriguez, 

398 F.3d 1291, 1296 (11th Cir. 2005). The district court must ensure that the 

government carries this burden by presenting reliable and specific evidence. United 

States v. Lawrence, 47 F.3d 1559, 1566 (11th Cir. 1995). “Where there is no drug 

seizure or the drug amount seized does not reflect the scale of the offense, the court 

shall approximate the drug quantity.” United States v. Frazier, 89 F.3d 1501, 1506 

(11th Cir. 1996) (quotations omitted). In estimating the drug quantity attributable 

to the defendant, the court may rely on evidence demonstrating the average 

frequency and amount of drug sales over a given period of time. Id. This 

determination “may be based on fair, accurate, and conservative estimates of the 

quantity of drugs attributable to a defendant, . . . [but it] cannot be based on 

calculations of drug quantities that are merely speculative.” United States v. 

Zapata, 139 F.3d 1355, 1359 (11th Cir. 1998). 

The district court did not clearly err in applying a base offense level of 38. 

See U.S.S.G. § 2D1.1(c)(1) (assigning a base offense level of 38 where the 

defendant’s offense involves 150 kilograms or more of cocaine). Although the 

district court did not make explicit factual findings about the quantity of drugs 

involved in Tillman’s offense, its failure to do so does not preclude meaningful 

appellate review because clearly identifiable evidence amply supported its 

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sentencing decision. See United States v. Tobin, 676 F.3d 1264, 1309 (11th Cir.), 

cert. denied, 133 S. Ct. 658 (2012) (explaining in order to facilitate appellate 

review, a district court should make explicit factual findings that underpin its 

sentencing decision, “[b]ut the failure to make specific findings does not preclude 

meaningful appellate review if the court’s sentencing decision is based on ‘clearly 

identifiable evidence’”). 

William McKeithen testified that, six months after his release from prison in 

March 2008, or September 2008, and up until mid-2010, he obtained a kilogram of 

cocaine once or twice weekly from Camon and Tillman. This testimony leads to a 

conservative estimate of 72 kilograms of cocaine attributable to Tillman through 

the conspiracy (1 kilogram per week for 18 months equals 72 kilograms). Gerald 

Williams testified that he obtained at least 1 kilogram of cocaine from the 

conspiracy on each of 15 to 21 trips to Ray City. After Camon and Tillman told 

him it was too dangerous to conduct business in Ray City due to the presence of a 

camera, he obtained cocaine from the conspiracy between 5 and 9 times in 

Valdosta. This testimony leads to a conservative estimate of 20 kilograms of 

cocaine attributable to Tillman through the conspiracy (1 kilogram per trip for 

20 trips equals 20 kilograms). Tony McKinney testified that, between 2002 and 

2003, he obtained around 2 or 3 kilograms of cocaine from the conspiracy 

approximately 10 times. This testimony leads to a conservative estimate of 20 

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kilograms of cocaine attributable to Tillman through the conspiracy (2 kilograms 

per transaction for 10 transactions equals 20 kilograms). Between 2005 and 2008, 

McKinney obtained 10 or 11 kilograms of cocaine from the conspiracy 

approximately 15 or 20 times. This testimony leads to a conservative estimate of 

150 kilograms of cocaine attributable to Tillman through the conspiracy (10 

kilograms per transaction for 15 transactions equals 150 kilograms).

Accordingly, the testimony of just these 3 witnesses leads to a conservative 

estimate of 262 kilograms of cocaine attributable to Tillman through the 

conspiracy. This estimate is not “speculative,” see Zapata, 139 F.3d at 1359, but 

rather is based on testimony about the average frequency and amount of drug sales 

over a given period of time, see Frazier, 89 F.3d at 1506. Moreover, Tillman 

offers no argument to suggest that this testimony was inaccurate or untrustworthy. 

Accordingly, the district court did not clearly err in overruling Tillman’s objection 

to the base offense level.

Possession of firearm enhancement

Tillman asserts the court erred in applying a two-level enhancement for 

possession of firearm, under § 2D1.1(b)(1), because it failed to make an explicit 

finding that the individuals who possessed firearms were his co-conspirators. 

Whether a firearm was possessed in connection with an offense is a factual finding 

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that, when used for sentencing purposes, we review for clear error. United States 

v. McClain, 252 F.3d 1279, 1284 (11th Cir. 2001). 

Under the Sentencing Guidelines, a two-level enhancement is added where 

“a dangerous weapon (including a firearm) was possessed” in connection with a 

drug offense. U.S.S.G. § 2D1.1(b)(1). The enhancement applies where a firearm 

was possessed by a co-conspirator, provided the following requirements are met: 

“(1) the possessor of the firearm was a co-conspirator, (2) the possession was in 

furtherance of the conspiracy, (3) the defendant was a member of the conspiracy at 

the time of possession, and (4) the co-conspirator possession was reasonably 

foreseeable by the defendant.” United States v. Fields, 408 F.3d 1356, 1359 (11th 

Cir. 2005) (quotations omitted).

The enhancement applies “if the weapon was present, unless it is clearly 

improbable that the weapon was connected with the offense.” U.S.S.G. § 2D1.1, 

comment. (n.11(A)). The government must show “the firearm was present at the 

site of the charged conduct” or the firearm was possessed “during conduct 

associated with the offense of conviction.” United States v. Stallings, 463 F.3d 

1218, 1220 (11th Cir. 2006). Once the government meets this burden, then the 

evidentiary burden shifts to the defendant to demonstrate that a connection 

between the weapon and the offense was “clearly improbable.” Id.

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As an initial matter, the district court did not fail to make a finding that 

Tillman’s co-conspirators possessed firearms in connection with the offense. The 

court explicitly stated that Tillman’s “associates and confederates” possessed 

firearms “in this conspiracy.” Therefore, the district court stated the individuals 

who possessed firearms were Tillman’s co-conspirators. 

The evidence at trial showed overwhelmingly that Camon was Tillman’s 

chief co-conspirator, and Grady testified that Camon twice was found to have 

firearms in his home, in 2006 and 2011. Additionally, Grady testified two other 

members of the conspiracy were arrested in the possession of a handgun. While 

they did not feature prominently in the testimony at trial, Agent Grady stated these 

two individuals were arrested in a car registered to Camon while on a trip to Texas 

in 2005 to purchase cocaine for the Camon organization, thus evidencing their 

membership in the conspiracy. 

Their possession of the handgun “during conduct associated with the offense 

of conviction,” a trip to obtain drugs for the conspiracy, and Camon’s possession 

of firearms in his home, a “site of the charged conduct,” show these firearms were 

possessed in furtherance of the conspiracy. See id. Tillman’s participation in the 

conspiracy began, at the earliest, in 1999 or 2000, when he began selling cocaine to 

McKeithen. Accordingly, all of these firearms possessed by Tillman’s 

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co-conspirators in furtherance of the conspiracy were possessed while Tillman was 

a member of the conspiracy. 

Lastly, Grady testified about a conversation between Tillman and Camon 

about Camon’s then-pending plea to a firearm offense. This constituted direct 

evidence of Tillman’s knowledge that Camon had possessed firearms, thus 

indicating that “co-conspirator possession was reasonably foreseeable” to Tillman. 

See Fields, 408 F.3d at 1359. Accordingly, because Tillman’s co-conspirators 

possessed firearms in furtherance of the conspiracy, and such possession was 

reasonably foreseeable to Tillman, the district court did not err in applying the twolevel enhancement. 

Maintenance of premises for the manufacture/distribution of drugs

Tillman argues the court erred in applying a two-level enhancement, under 

§ 2D1.1(b)(12), for maintenance of a premises for the manufacture or distribution 

of drugs. Whether or not a defendant maintained a premises for the manufacture or 

distribution of drugs is a factual issue subject to clear error review. See

Barrington, 648 F.3d at 1195. 

Section 2D1.1(b)(12) was new to the November 2011 Guidelines Manual, 

and implemented a directive from the Fair Sentencing Act, which directed the 

Sentencing Commission to add a two-level enhancement “as generally described in 

. . . (21 U.S.C. 856).” Fair Sentencing Act of 2010, Pub. L. No. 111-220, § (6)(2), 

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124 Stat. 2372, 2373 (2010). The “disorderly house” statute makes it illegal to 

“knowingly open, lease, rent, use, or maintain any place, whether permanently or 

temporarily, for the purpose of manufacturing, distributing, or using any controlled 

substance.” 21 U.S.C. § 856(a)(1). Section 2D1.1(b)(12) of the Guidelines adds a 

two-level enhancement “[i]f the defendant maintained a premises for the purpose 

of manufacturing or distributing a controlled substance,” including storage of a 

controlled substance for the purposes of distribution. U.S.S.G. § 2D1.1(b)(12) & 

comment. (n.17). The court should consider “whether the defendant held a 

possessory interest in . . . the premises” and “the extent to which the defendant 

controlled access to, or activities at, the premises.” U.S.S.G. § 2D1.1, comment. 

(n.17). While, “[m]anufacturing or distributing a controlled substance need not be 

the sole purpose for which the premises was maintained, [it] must be one of the 

defendant’s primary or principal uses for the premises.” Id. 

We have held the “critical elements” of the offense for a violation of 

§ 856(a)(1) are “(1) knowingly exercising some degree of control over the 

premises; (2) knowingly making the place available for the use alleged in the 

indictment; and (3) continuity in pursuing the manufacture, distribution, or use of 

controlled substances.” United States v. Clavis, 956 F.2d 1079, 1090 (11th Cir. 

1992). We rejected the contention that regular use of a premises “as a site from 

which to distribute cocaine is, by itself, sufficient” to constitute “maintaining” a 

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premises, but rather stated that “[a]cts evidencing such matters as control, duration, 

acquisition of the site, renting or furnishing the site, repairing the site, supervising, 

protecting, supplying food to those at the site, and continuity” constituted evidence 

of “maintaining.” Id. at 1091. 

The district court did not clearly err by determining Tillman maintained a 

premises for the manufacture or distribution of drugs. Assuming, arguendo, that 

Tillman’s home in Ray City and the house in Lowndes County do not meet the 

elements we have found necessary for a conviction under § 856(a)(1), the 

apartment in Ray City meets all three elements, and this would also support the 

§ 2D1.1(b)(12) enhancement. There is no indication this apartment was

maintained for any purpose other than drugs. Agent Grady testified the 

conspiracy’s transactions shifted to the Ray City apartment after he placed the 

camera outside Tillman’s home, and Sargent Picciotti testified he observed 

members of the conspiracy and “random associates” frequenting the apartment and 

conducting drug transactions. McKeithen testified he obtained cocaine at the

apartment. Mack testified Camon had told him the brick house was a “stash 

house.” He also testified he assisted Camon and Tillman in “re-rocking” cocaine 

at the house. 

Tillman maintained the Ray City apartment by “exercising some degree of 

control over the premises,” including by “supervising” the apartment. See Clavis, 

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956 F.2d at 1090-91. Sargent Picciotti testified that, while he observed many 

members of the conspiracy and “random associates” frequenting the apartment late 

into the night, it was Tillman who would “g[e]t up very early and tend[] to be over 

there.” Although other members of the conspiracy also exercised some control 

over the apartment by conducting drug transactions there, Picciotti’s testimony 

indicates that it was Tillman who “maintained” the apartment. Accordingly, 

because Tillman maintained the Ray City apartment for the manufacture or 

distribution of drugs, the district court did not clearly err in applying the two-level 

§ 2D1.1(b)(12) enhancement. 

Leadership role enhancement

Lastly, Tillman contends the court erred in applying the three-level 

leadership-role enhancement for being a manager of supervisor, under U.S.S.G. 

§ 3B1.1(b), because the court did not make specific findings by a preponderance of 

the evidence that attributes of his participation in the conspiracy evidenced a 

leadership role. While we review the district court’s determination as to a 

defendant’s role in the offense for clear error, the application of a guideline to a 

particular factual situation is a question of law that this Court reviews de novo. 

United States v. Alred, 144 F.3d 1405, 1421 (11th Cir. 1998). 

The Sentencing Guidelines provide for a three-level increase if the defendant 

“was a manager or supervisor (but not an organizer or leader) and the criminal 

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activity involved five or more participants or was otherwise extensive.” U.S.S.G. 

§ 3B1.1(b). “[A] section 3B1.1 enhancement . . . requires authority in the 

organization that perpetrates the criminal conduct, the exertion of control, or 

leadership.” Alred, 144 F.3d at 1422. Where the defendant had the responsibility 

of ensuring the operation would succeed, as evidenced through the defendant’s 

unilateral decisions, that is sufficient evidence to prove a managerial role and 

support a § 3B1.1(b) enhancement. See United States v. Jones, 933 F.2d 1541, 

1547 (11th Cir. 1991). A defendant’s subordinate role to another co-conspirator 

does not absolve him of his supervisory role in coordinating and managing the 

delivery and transportation of a drug shipment. Id. at 1546-47. 

While there was evidence Tillman held a position subordinate to Camon, 

such that Camon quoted the price of cocaine to distributors, and directed Tillman 

as to when and where to make drug deliveries, there was also evidence Tillman 

held a great deal of responsibility in the organization. This included evidence of 

(1) his control over the organization’s finances, (2) his corruption of law 

enforcement; and (3) his quality control over cocaine supplied to the organization. 

This evidence amply demonstrated Tillman’s high “degree of participation in 

planning or organizing the offense.” See U.S.S.G. § 3B1.1, comment. (n.4). 

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More importantly, there was evidence Tillman directed subordinate 

members of the conspiracy.3

 For example, McKeithen testified that, on occasion, 

he had gone to Tillman’s house to speak with Tillman, who would direct him to 

another location for the consummation of a drug transaction. This evidence 

showed Tillman directed others to ensure the drug transactions would succeed. See 

Jones, 933 F.2d at 1547. Tillman’s role subordinate to Camon’s does not absolve 

him of his supervisory role in coordinating and managing the delivery and 

transportation of the drug shipments. Id. at 1546-47. 

The district court did not err in applying the three-level § 2B1.1(b) 

enhancement. The Government presented ample evidence at trial that Tillman had 

a managerial or supervisory leadership role in the conspiracy. 

Conclusion

Upon review of the record on appeal, and after consideration of the parties’ 

appellate briefs, we affirm Tillman’s conviction and sentence.

AFFIRMED.

 3

 The Government was incorrect to argue at sentencing that Tillman’s leadership role 

was evidenced by the exercise of decision-making authority as to whether Bray could purchase 

drugs from the Camon organization. In fact, the evidence adduced at trial showed that it was 

Camon, driving his lime-green Dodge Challenger and going by his moniker “Six,” who had 

approved the sale of drugs to Bray. Tillman’s role was limited to delivering the cocaine that 

Bray later purchased. 

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