NOT RECOMMENDED F OR F ULL-TEXT PUBLICATION F ile Nam e: 12a0176n.06 No. 10-4326 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,

v. MAUR ICE L. WIL LIAMS, Defendan t-Appellant. ) ) ) ) ) ) ) ) ) ON AP P EAL FROM THE UNITED STAT ES DIS TRICT C O U R T F O R T H E SOUTH ERN DISTRICT OF OHIO

O P I N I O N

BEFORE: DAUG HTREY, MOORE, an d McK EAGU E, Circuit Judges. McK EAGU E, Circuit Judge. Def endant- Appellant Maur ice Williams (“Wil liams”) wa s convicted of opera ting a continuing criminal enter prise (“CCE”) and twenty -nine other counts. On appea l, Wi lliams alleg es four err ors. We AF F IRM. I. BACKG ROUND On Fe bruar

y 26, 2009, Wil liams was char g ed with thirty -two fede ral drug -re lated offe nses in a superse ding indictment along with twenty -eig ht co-defenda nts. At trial, more than twenty witnesses testified for the Gover nment reg arding Wil liams’s leade rship role in an international drug traff icking org anization. See R. 1139-48, Trial Transc ript. Trial testimony reve aled that Wil liams

was involved in coca ine traff icking back in t h e 1 9 9 0 s . R

. 1148, p. 103-04. Wil liams worke d “tog ether as a team” with Keny atta Powell beg inning in 20 0 1

. Id

. at 112. Wil liams and Powell would pool their m oney to buy co ca i n e fr om Albert Bea n and sell it to lower- level dealers. Id. atNo. 10-4326

United States of America v . Maurice L. W illiams 105, 108, 113-15. Be fore long, Powell introduced Wil liams to Terr ence Pfeiffe r so that he could join the caba l. Id. at 128. Pfeiffe r subsequently introduced Wil liams to Antonio Carlton, who simil arly assumed a role in the org anization. R. 1140, p. 397. Wil liams and Powell jointly assig ned drug

rela ted tasks to Pfeiffe r and Car lton, id. , until P owell went to prison in 2001. R. 1139, p. 131. Once Powell was in prison, Wil liams took control of the en t i re o p eration. Id. at 133. I n doing so, Wil liams su p ervised numerous additional individuals. To beg in, under Wil liams’s business model, Wil liams supplied other coca ine deale rs, such as Kevin Cook, Cheo Gre enhow, and Casey Dra ke, with coca ine on consig nment. See R. 1141 , p. 665; R. 1144, p. 1150; R. 1142, p. 731- 32. Wil liams also hired multipl e people to fac ilitate the smooth opera tion of his org anization. First, there was Dar

rell Evans, who was responsible for transporting the coca ine. See R. 1141, p. 607-09. L ater , when Wil liams worrie d that Evans might cooper ate with police, Wil liams h i re d a wo man named Cry stal to make drug runs. R. 1144, p. 1156. Ultimately , Wil liams expanded his opera tion, and he hired Demetr ius Slaughte r and Marlon West to help transport the coca ine. R. 1139, p. 153; R. 1144, p. 1060. Kevin Cook, acting on Wil liams ’s b eh al f, also hired Way ne Marsha ll to help fac ilitate the coca ine delivery

. R. 1143, p. 967-76. This rotating cast of char acte rs fa cil itated Wil liams’s coca ine and marijuana org anization, but Wil liams also hired individuals exclusively for the purpose of

selling ma

rijuana, suc h as Malcom Ross. R. 1143, 928-32. Unbeknownst to Wil liams, the Fe dera l Bur eau of I nvestig ation (“F BI ”) beg an investiga ting his org anization in J anuar y 2008. R. 1148, p. 33. I n May , FB I ag ents rec eived court permission to tap Cook’s phone, and by J une, additional wireta ps wer e authorized for a phone number identified in the first wireta

p. Id. at 37, 44-45. I n J uly , FB I ag ents executed sear ch war rants at four locations - 2 -No. 10-4326

United States of America v . Maurice L. W illiams deeme d likely to contain evidenc e of illicit activity , including Wil liams’s residenc e in Charter Oak. Id. at 75. Severa l months later, W i l l i am s org anized a “business” trip to the Mexi can border

acc ompanied by six individuals: “Dr ake, Powell, West, a woman called Purple, J eff Wil liams, and

a J amaica n associate of Wil liams named J ohn.” Appellee Br

. at 1 6

. On Fe bruar y 26, 2009, the g rand jury returne d a superse ding indictment ag ains t W illiams and his co-de fenda nts. R. 33, Superseding I ndictment. By Marc h 29, 2009, FB I ag ents arr ested ever y body but Wil liams. R. 1148, p. 77. Wil liams continued to elude c apture until August 2009. Id. at 73, 93. Wil liams’s trial beg an on Marc h 22, 2010. R. 1148. The jury returne d a g uilty verdic t with respe ct to 30 counts: opera ting a CCE in vi olation of 21 U.S.C. § 848(a); conspira cy to distribute, possess with intent to distribute, and to distribute mor e than 5 kilogr ams of coca ine in violation of 21 U.S.C. §§ 841(a) (1), 841(b)(1)( A)(ii), and 846; conspirac y to dist ri b u t e, possess with intent to distribute, and to distribute more than 50 ki l o gra m s o f marijuana in violation of 21 U.S.C. §§ 841(a) (1), 841(b)( 1)(C) and 846; posse ssion of a firea rm in further ance of a drug traff icking crime in violation of 18 U.S.C. § 924(c) (1)(A )( i ); and twenty -five counts of the use of a telecommunica tions device to fac ilitate a drug transac tion in violation of 21 U.S.C. § 843. Appellant Br . at 2. On October 14, 2010, the district court sentenc ed Wil liams to 25 y ear s’ imprisonment on the CCE; five y ear s’ imprisonment f or the firea

rm, to be serve d consec utively with the CCE; and four y ear s on eac h of the telecommunica tions char g es, to be serve d concur rently with the CCE. R. 1272, Sentencing Transc ript. Wi lliams ti mely appea led. - 3 -No. 10-4326

United States of America v . Maurice L. W illiams On appea l, Williams a lleg es four err ors. First, Wil liams arg ues that the district c ourt err ed in “ failing to instruct the jury that it must unanimously ag ree on the five individuals that appellant manag ed, supervised, or org anized” during the CCE. Appellant Br

. at 1. Second, Wil liams asser ts that the di strict court “err ed in deny ing Appellant’s mot ion to suppress evidence” sei zed from the C h ar t er Oa k residenc e (the “re sidence ”). Id. Third, Wil liams contends the district court err ed in “deny ing Appellant’s motion to suppress wireta pped communications

. . . .” Id. Finally , Wil liams claims that the district c ourt “er red by g iving an improper instruction on venue to the jury as to the telecommunica tions offenses.” Id. at 2. II. ANALYSIS A. Continu ing Crim inal E nterprise The first issue Wil liams raises on appea l is his continuing criminal enter pri s e (“ C C E ”) conviction. Ther e ar e five elements in a CCE offe nse: (1) that the defe ndant committed a felony violation of fede ral narc otics laws; (2) that the violation was p ar t o f a continuing series of three or more drug offe nses committed by the defe ndant; (3) that the defe ndant committed the series of offe nses in conce rt with five or more persons; (4) that the defe ndant acte d as an org anizer, supervisor, or manag er with reg ard to these five or more persons; and (5 ) that the defe ndant obtained substantial income or resour ces f

rom this series of violations. United States v. Burns , 298 F.3d 523, 535 ( 6th Cir. 2002). There are two interre lated aspec ts to Wil liams’s CCE appea l. First, Wil liams contends that the trial court err ed “by failing to i n s t ru ct t h e j ury that it must unanimously ag ree on the five individuals that appellant manag ed, supervised, or org anized during the alleg ed criminal conspirac y .

. . .” Appellant Br

. at 20. Wil liams also contends t h at t h e district court’s instructions resulted in

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United States of America v . Maurice L. W illiams “juror c onfusion,” Appe llant Br. at 32, resulting in a C CE conviction with inadequa te evidenc e to satisfy the essential e lements of the CCE crime. Id. at 27-30. Bec ause W illiams did not object to the jury instructions at trial, the “plain err or” standard g overns his CCE appea l, requiring Wil liams to demonstrate an err or that “is obvious, aff ects substantial rig hts, and seriously aff ects the fairne ss

or integ rity of judicial proce eding s.” United States v. Rayborn , 491 F.3d 513, 521 (6th Cir. 2007);

see also Appellant Br

. at 30 (conc eding that the plain err or standard of revie w applies). This Court finds both strands of Willi ams’s CCE appea l unpersuasive . Our a naly sis follows. 1. The Tr ial Court Properly I nstructed the Jury

Reg arding

the CCE Charg e The fac t that the district court’s instructions to the jury did not require unanimity reg arding the identity of the five subordinates in Wil liams’s CCE does not establish plain err or beca use such

an instruction is neither require d by the United States Supreme Court nor the law of this Circuit. See Richardson v. United States , 526 U.S. 813 (1999); United States v. English , 925 F.2d 154, 159 (6th Cir. 1991). Rather, Richardson held that a jury must u n an i m o usly ag ree that the defe ndant committed a “continuing series of violations” and also must unanimously agr ee ab out which violations constitute the “continuing series.” Richardson , 526 U.S. at 815. Moreove r, the Richardson Court assumed without deciding that “ther e is no unanimity require ment” for the other elements of a CCE beca

use the other elements are “sig nificantly differ ent” from the “continuing series of violations” provisions. Id. at 824. “The y differ in respe ct to lang uag e, brea dth, tradition” and other fac tors. Id. Fur ther, this Court has alre ady expressly decide d the issue. See English , 925 F.2d at 158. I n English , we deter mined that the “jury [i s] not require d to deter mine unanimously the

- 5 -No. 10-4326

United States of America v . Maurice L. W illiams i d en t i ties of the five individuals whom defe ndant supervised, org anized or manag ed.” Id. at 15 8 (quoting United States v. Linn , 889 F.2d 1369, 1374 ( 5th Cir. 1989)). Wil liams contends that “the same conce rns of fairne ss that led the [ Richardson ] C ourt to require unanimity in the ‘ser ies of acts’ context, applies eq u al l y to the identities of the CCE defe ndant’s subordinates.” Appellant Br

. at 25. As Wil liams acknow ledg es, howeve r, Richardson nowher e re quires jury

unanimity

reg arding the identity

of the CCE subordinates. Appe llant Br. at 25. Moreove r, t his Court is bound by English. See 6 Cir. R 206(c) ; Uni t ed S t a t es v. Moody , 206 F.3d 609, 615 (6th Cir. 2000) (“This panel may not overr ule the decision of another panel; the ear lier deter mination is binding authority unless a decision of the United States Supreme Court ma ndates modification or this Court sitti ng en banc overr ules the prior decision.”)

. Consequently , the district court committed no err or at all — let alone plain err or — by not instructing the jury that unanimity

was re quired re g arding Wil liams’s CCE subordinates. 2. Wil liams’s CCE C onviction Rests on S ufficie nt Evidence Wil liams also asser

ts th at t h e Gover

nment failed to prove all the elements of the CCE

o ff ense. I n particula

r, Wil liams arg

ues that the Gover

nment never established that he acte d i n

conce rt with f

ive or more persons. See United States v. Burns , 298 F.3d 523, 535 (6th Cir. 2002)

. Wil liams’s arg ument is as follows: I n closing , the Gover

nment only identified the names o f four individuals (Powell, Cook, West, and Antonio Carlton) that it contende d wer e being manag ed or supervised by Appellant. By only identify ing those four individuals as subordinates manag ed by Appellant without a jury instruction requiring the jurors to unanimously ag ree on the iden t i t i es o f all five people he was alleg ed to have supervised in further ance of the CCE, the Gover nment left the jury t o themselves to decide the

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United States of America v . Maurice L. W illiams identity of the final s upervisee from the larg e number of individuals ref ere nced at trial . . . . Appellant Br

. at 29. Wil liams asser ts this is problematic beca use “one member of the jury may have deter mined the g uilt of Appellant on the CCE char g e on the b as i s t h at at least one of the five individuals Appellant is alleg ed to have supervised may have simply been a buy er/seller rathe r that

an ac tual subordinate in the c riminal enterpr ise . . . .” Id. at 30. The United States, howeve r, notes that “[m] any witnesses at trial testified that Wil liams was in char g e of the drug -distribution opera tion and named five or more of his subordinates.” Appellee Br . at 23. The G overnme nt continues: Powell did. Evans did. Cook did. I n addition, afte r hearing testi m o n y from other witnesses who admitted that they worke d for Wil liams’s drug -dea ling org anization (and that it was, in fac t, his org anization) — including Carlton, Gre enhow , Dra ke, Ross, and Marsha ll — the jurors could have added the num b er s t h em s elves. The evidenc e at tria l thus established bey ond a re asonable doubt that Wi lliams acted a s an org anizer, supervisor, or manag er with reg ard to five or more persons with whom he ac ted in conce rt in committi ng a ser ies of drug crimes. Id. at 23-24. As the Gover

nment’s brief demonstrates, the number of individ uals who testified to Wil liams’s CCE and admitted on the rec ord to being one of Wil liams’s subordinates far exceeds the statutorily require d minimum of five people. See Appellee Br

. at 23-24; see also 21 U.S.C. § 842(c) (2)( A). As such, this Court finds no plain err or in an instruction that did not require jurors to unanimously

identify the five subor dinates. Ac cording ly , Wil liams’s arg ument is unavailing

.

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United States of America v . Maurice L. W illiams B. Motion to Supp ress Evidence from Williams’s Re sidence The second issue Wil liams raises on appea l is that the district cour t er re d in deny ing his motion to suppress evidenc e from a s ea rc h o f his residenc e. See R. 855, Orde r. Specifica lly , Wil liams arg ues that the aff idavit in s u p p o rt o f the sear ch war rant failed to establish a sufficie nt nexus between the r esidenc e and the items sought. R. 826, Motion; see also Appellant B r. at 40. This Court revie ws de novo the district court’s deter mination that the issuing mag istrate had a substantial basis for concluding that the sear ch of the residenc e would uncover illega l evidence

. S ee United States v. L apsins , 570 F.3d 758, 763 (6th Cir. 2009); United States v. T er r y , 5 2 2 F. 3 d 645, 647 (6th Cir. 2008). The mag istrate’s initial deter mination, howeve r, is af forded g rea t defe renc e. See Terry , 522 F.3d 645, 647 (“[W] hen judging the sufficie ncy of an aff idavit to establish probable cause in support of a s ea rch war rant, the Supreme Court has ‘re peate dly said that afte r-the- fac t scrutiny

. . . should not take the form of de novo revie w. . . . Rather, revie wing courts

are to acc ord the mag istrate’s deter mination ‘g rea t defe renc e.’” ). Acc ording ly , “this circ uit has long held that an issuing mag istrate’s discretion should only be reve rsed if it was arbitra rily exercised.” Id. (interna l altera tions omi tted). A war rant passes constitutional muster if the issuing judge has made “a prac tical, commonsense de cision whether , g iven all the circ umstances set forth in the aff idavit before him, including the vera city and basis of knowledg e of persons supply ing hear say i n fo rm at ion, there is a fair probability that contr aband or evidenc e of a crime will be found in a particula r place .” Illinois v. Gates , 462 U.S. 213, 238 (1983) (internal alterations omitted). Fur ther, thi s Court has held that a

war rant aff idavit must be “judg ed on the adequa cy of what it doe s contain, not on what it lac ks, or - 8 -No. 10-4326

United States of America v . Maurice L. W illiams

on what a critic might say should have been added.” United States v. Allen , 211 F.3d 970, 975 (6th Cir. 2000) (en ba

nc). After a thoroug h revie w of the rec ord, this Court finds no evidenc e of constitutional infirmity with respec t to the warr ant. The w arr ant containe d a deta iled aff idavit provided by Special Age nt Woz niak listi ng the numerous g rounds in support of the sear ch at the residenc e. See R. 838, Richard A. Woz niak Affida

vit in Support of Searc h Warrant. First, Ag ent Woz niak’s aff idavit ex p l ai n ed that, b as ed on his six teen y ear s’ experience , drug traff icker s fre quently maintain drug -re lated evidenc e “in locations to which [t hey ] have fre quently and rea dy acc ess, i.e., homes

. . . .” Id. at 2. Ag ent Woz niak then provided a leng thy acc ount of the FB I ’s in v es t i g ation linking Wil liams’s org anization to his residenc e. Woz niak explained that surveillance reve aled that Wil liam s had individuals stay at his condo when he was n o t prese nt and “[y ]ou[ r] aff iant knows that illega l

narc otics deale rs wi[l l] have individuals (se curity ) at their ‘stash houses’ in c ase rival drug deale rs attem pt to rob them

. . . .” Id. at 7. Ag ent Woz niak also detailed numerous incriminating

conver sations the FBI i n t er cepte d on Wil liams’s phone that implicated his residenc e in the org anization. On one phone call, the FB I interce pted Wil liams providing his partial ad d r e s s ( “ 4 0 7 7”) in the context of “arr ang ing illeg al nar cotics transa ctions.” Id. at 7. During another

call, W illiams asked an individual called Mike L NU if he “wa

nted a ‘ half’ (believe d to be half kilogr am of coca ine)” and “Mike replied, ‘a quarte r or some thing [si c].” Ag ent Woz niak explained that, “[d] uring this ti me fra me Will iams called se vera l other individual[ s] and told them to come to the condo.” Id. FB I surveillance established the condo was the residenc e, and afte r the individuals depart ed, Wil liams “ca lled Mike and asked Mike if Mike had called. Mike - 9 -No. 10-4326

United States of America v . Maurice L. W illiams replied, ‘Ye a. I t was three and a half though.’ ” Id. Wil liams responde d, “‘I t wh at ? , ’” and Mike replied, “‘[t] hat mother fucke r was short, buddy .’” Id. Wil liams then said: “‘N o bro. You better fix y our sca le.’” Id. T h e FB I rec ounted another call wher e Wil liams spoke with a man named Dra ke who “advise d Wil liams that he had some ‘chunks’ (coc aine) and asked Wil liams if he was conce rned about any one at the condo. Wil liams responde d that he had more than that and no one knows about it.” Id. at 8 (ca

pitals in orig inal omitted). I n y et another call, Carlton advised Wil liams that Powell

was stealing Carlton’s money that he had been storing at Powell’s mother’s house. Id. Carlton advised Wil liams he neede d a new place to store his money , at which point Wil liams interjec ted “and stated no, that he (Williams) had to find another condo (r efe rring to 4077 Charter O ak Way ).” Id. (ca pitals in original omitted). Wil liams asser

ts that the war

rant was consti t u t i onally infirm beca use, for example, Ag ent Woz niak does not explain why he infe rre d the word “smoke” in one of the telephone calls to r efe r to marijuana. A

ppellant B r. at 40. Nonethele ss, the contents of the wa rra nt should be “judg ed on t h e adequa cy of what it does contain,” Allen , 211 F.3d at 975, and Woz niak’s aff idavit prov i d ed g rounds for the mag istrate to make a “pra ctical, common-sense decision,” Gates , 462 U.S. at 238, that there might be contra

band at the residenc e. As such, the district court corr ectly deter mined that the mag istrate had a substantial basis for g ranting the war rant to sear ch the residenc e. See Lapsins , 570 F.3d at 763. Acc ording ly , this Co u rt fi n d s t h at the district court corr ectly denied Wil liams’s motion to s uppress the e vidence stemming fr om the sear ch of the residenc e.

- 10 -No. 10-4326

United States of America v . Maurice L. W illiams C. Motion to Supp ress Evidence Stem m ing f rom Court-Or dered Wire taps The third issue Willi ams raise s on appea l is that the trial c ourt err ed in de ny ing his moti on to suppress wireta

ps of three targ et telephones. See Appellant Br

. at 40; see also R. 825, Motion to Suppress Wiretaps. Specifica lly , Wil liams arg ues that “Ag ent Woz niak’s aff idavit in support of the wireta p of T ar get T elephone #1 (“TT #1”) failed to meet the nece ssity require ment pursuant to 18 U. S.C. § 2518(1)( c), and that the subsequent aff idavits submitt ed in support of reque sted taps o f Targ et Telephone s #2 (“TT #2”) and #3 (“T T # 3 ” ) c o n ta in e d r e c o r d e d c o n v e r s a ti ons obtained illega lly from the TT#1 and thus both applications wer e tainted as fruit of the poisonous tree .” Appellant Br

. at 48. This Court revie ws a district court’s denial of a motion to suppress for clea r err or with reg ard to its finding of fac ts and its conclusions of law de novo. United States v. Hurst , 228 F.3d 751, 756 (6th Cir. 2000). A wiretap application mus t include “a fu l l and complete statement as to whether

or not other investiga tive proce dures have been tried and failed or why they rea sonably appea r to be

u n l i k el y t o succe ed if tried or to be too dang erous.” 18 U.S.C. § 2518(1)( c). This “nec ess i t y ” require ment ensure s that “wire tapping is not resor ted to in a s ituation in which traditional investiga tive techniques will suffice to expose the crime.” United States v. Stewart , 306 F.3d 295, 304 (6th Cir. 2002). “Ge nera lly , a district court’s finding s that the require ments of 2518(1)( c) have been me t are aff

orded c onsiderable discretion.” Id. (interna l altera tions omi tted). Wil liams contends that the wireta ps the go vernme nt acquir ed failed the nece ssity require ment. Specifica lly , he arg ues that a varie ty of non-wire tap investiga tory techniques, rang ing from “tra sh pulls” to visual surveillance and closed-c ircuit television monitoring “we re turning up - 11 -No. 10-4326

United States of America v . Maurice L. W illiams signific ant ties within the org anization . . . .” Appellant B r. at 50. He explains t hat the succ ess of these eff orts “wa s amply demonstrated by the fac t that on April 28, 2008, just a few day s befor e the Application for TT#1 was submitt ed by police on May 5, 2008,” a confide ntial source was “ac tively providing information” to law e nforc ement. Appe llant Br. a t 50. I n response , the Gover

n m en t contends that section 2518(1)( c)’ s strictures wer e satisfied throug h Special Ag ent Woz niak’s aff idavit — “a 16-pag e, 22 -par ag raph section titled ‘need for interce ption’” — that documented “the past u s e an d potential future utilit y of confide ntial informants, underc over ag ents, interviews and questio n ing befor e the g rand jury , pen reg isters, phy sical surveillance , and sear ch war rants

. . . .” Appellee Br

. at 33-34. The Gover nment explains that “althoug h eac h [m ethod] had been tried and could provide some information, none could reve al the full scope of the multi-state traff icking conspirac y or all of its members.” Id. at 34. Henc e, the wireta p was ne cessa

ry to obtain a “more complete window on the opera tion.” Id. I n its order deny

ing Wil liams’s motion, the district court held that the fac t t h at l aw

en fo rc ement made inroads into Wil liams’s org anization did not neg ate the need for more drastic

measure s. R. 855, Orde r. Rather, “the evidenc e and information from the confide ntial source s did not rela te or descr ibe the inner working s of the org anization in its entirety .” Id. at 8. The aff idavits in support of the application for the wireta ps “deta iled all the investiga tive steps that had been taken up to that point, but explains [si c] that t h e go v er n m ent had failed to obtain sufficie nt evidenc e to identify and prosecute the entire drug traff icking org anization.” Id

. at 8. Acc ording ly , the di strict court reje cted Wil liams’s motion, finding that “the g overnme nt g ave serious consideration to sever al

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United States of America v . Maurice L. W illiams non-wire tap techniques and informe d t h e Mag istrate J udg e of the rea sons for the investiga tors’ beliefs that c onventional methods had a chieve d only limit ed succ ess.” Id. at 9. The district court corr ectly denied Wil liams’s motion to suppress. The “mer e fac t that some investiga tive techniques wer e succe ssful in uncovering evidenc e of wrong doing does not ma ndate that a court neg ate the need for wireta p surveillance .” Stewart , 306 F.3d at 305. I ndeed, wher e “it does not appea

r that t he g overnme nt could have uncover ed the full scope of the conspirac y , espec ially not in a rela tively safe manne r, wi thout the wireta ps,” this Court has rec og nized that wireta pping is appropr iate. Id. This is espec ially true “whe n the telephone is routinely relied on to conduct the criminal enter prise under investiga tion.” Id. After a thoroug h revie w of the rec ord, it is evident that this was prec is el y s u ch a case . See , e.g. , Appellee Br

. at 35 (noting that one of Wil liams’s co-de fenda

nts testified “that he was ‘communica tions centr al beca use ever y b o d y was calling my

phone.’” ). Ac cording ly , Wil liams’s arg ument is unavailing

. D. The District C ourt’s Jury Instruct ions Regarding Venu e Wil liams’s final point on appea l is t h at t h e d istrict court “er red by g iving an improper instruction on venue to the jury on the telecommunica tions char g es.” Appellant Br

. at 53; see also R. 976, J ury I nstructions, p. 48 (instructing the j ury “that the defe nd an t, Maurice Wil liams, either used the communication fac ility in the Southern District of Ohio, or used the communication fac ility to contac t persons within the Southern District of Ohio, or used the communication fac ility with the intent to aff

ect conduct in the Southern District of Ohio.”). Specifica lly , Wil liams arg ues that no fede ral circ uit has interpre ted § 843(b) to provide for a conviction wh en a defe ndant’s use of a communication fac ility is intended mere ly to a ffe ct conduct in the jurisdiction. Id. at 55. I nstead, - 13 -No. 10-4326

United States of America v . Maurice L. W illiams Wil liams contends, “all [federa l circ uits] have require d that the g overnme nt must prove that the call

was either made from, or rec eived in, the district.” Id. Wil liams conclude s that, “[v] iewing the jury char g e g iven in its entirety , nowher e has the corr ect venue instruction been convey ed to the jury in

a clea r and concise manner ,” and there fore he char g es that “the court committed plain err or in g iving this incorrec t and impermissibly broad instruc tion of law to the jury . . . .” Id. Be cause Wil liams failed to object to the jury instructions a t tr ial, this Court applies a plain

err or standard of revie w. See Fe d. R. Crim. P. 52(b); United States v. Olano , 507 U.S. 725, 732 (1993); United States v. Kuehne , 547 F.3d 667, 697 (6th Cir. 2008); Appellant Br

. at 53 (conc eding that plain err or applies). To establish plain err or, t h ere must be (1) err or, (2) that is plain, and (3) that aff ects substantial r ights. United States v. W ebb , 403 F.3d 373, 380 (6th Cir. 2005)

. “I f all of three conditions are met, an app el l at e co u rt may then exercise its discretion to notice a forf eited

err or, but only if (4) the err or seriously aff ects the fairne ss, integ rity , or public reputa tion of judicial proce eding s.” Id. (citing Johnson v. United S tates , 520 U.S. 461, 466-67 (1997)) (alter ations omitted). Wil liams fac ed twenty -three counts of violating 21 U.S.C. § 843(b). Section 843(b) rende rs it “unlawf

ul for any person knowing ly or intentionally to use any communicat i o n fa cility in committing or in c ausing or fac ilitating the commission of any act or acts constituting a felony

. . . .” Pursuant to 18 U.S.C. § 3237, “any offe nse aga inst th e Un i t ed States beg un in one dis trict and completed in another , or committed in more than one district, may be inquired of and prosec uted in any district in which such off ense w as beg un, continued, or c ompleted.”

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United States of America v . Maurice L. W illiams Wil liams ack n owledg es that no Six th Circuit case s direc tly support his arg ument. Nonethele ss, he asserts that “a review of cases from sister circ uits demonstrates tha t t h e v er y fe w fede ral c ourts that have addre ssed this que stion ha ve interpre ted this ve nue provision to mea n that in order to prosec ute violations of 21 U.S.C. § 843(b), venue is proper either in the district wher e the call was place d or in the district w here the call was rec eived.” Appellant Br

. at 53-54. Fur ther, he “ave rs that no fede ral circ uit has interpre ted § 843(b) to allow a prosec ution in a particula r venue on the basis that the defe ndant mere ly ‘used a communication fac ility with the intent to aff ect conduct in the Southern District of Ohio,’ as Appellant’s trial court char g ed .” Id. at 55. This is signific ant, Wil liams arg ues, because the jury instruction “has no basis in law; fails to comport with the pl ain lang uag e of 18 U.S.C. § 3237 or § 843(b)

. . . and has impe rm i s s i b l y b roade ned the venue require ment to the benefit of t he Government and the detriment of Appel l an t

. . . .” Appellant Br

. at 58. The Gover

nment responds by first pointing out that the district court consulted with both parties when draf

ting the jury instructions for the §843(b) counts, and that the jury instructions wer e consistent with the outcome of that confe renc e. Appellee Br

. at 36; see also R. 1152, Tr., p. 1023- 24. Presumably , this arg ument i s m ea n t to concr etize the extent to which Wil liams forf eited this claim for appellate revie w. Second, the Gover nment arg ues that Wil liams’s appea l fails under plain

err or scr utiny . Appellee Br . at 37. After revie wing the parties’ arg uments and the rec ord, this Court finds that Wil liams’s claim fails t o s u rv i v e plain err or revie w. Assuming without deciding that the district court’s jury instructions constituted an err or, this Court deter mines that Wil liams also fails to demonstrate that - 15 -No. 10-4326

United States of America v . Maurice L. W illiams the alleg ed err o r af

fe ct ed his substantial rig hts. Although Wil liams arg ues that “at least one wireta pped call” was made in Maryland, Ap p el l an t Br

. at 57, this call was made to a CCE subordinate who w orked for Wil liams in the Southern District of Ohio. Consequently , venue w as proper even unde r Wil liams’s prese ntation of the fac ts, be cause the call wa s rec eived in Ohio. As such, Wil liams fails to show that the district court’s instruction aff ecte d his conviction. Fur ther, while Wil liams arg ues that “it is impossibl e to deter mine” if the call participa

nts wer e actua lly in the Southern District of Ohio, Appellant Br

. at 58, it is rea sonable to infer that a member of Wil liams’s CCE who opera ted in the Southern District of Ohio also rec eived a phone call from Wil liams about that opera tion while in the Southern District of Ohio. See United States v. Ave ry , 128 F.3d 966, 971 (6th Cir. 1997) (“Circ um s t antial evidenc e on its own can sustain a jury ’s verdic t, and such ci rc u m s tantial evidenc e need not remove ever y rea sonable possibili ty of doubt.”). Acc ording ly , Wil liams f

ailed to sustain his bur den of demonstrating that his substantial rights we re prejudice d. Consequently , plain error review requires thi s Court to aff irm the di strict court’s jury instructions with reg ard to Willi ams’s twenty -three §843(b) c harg es. IV. CONCLUSION For the fore g oing r easons, this Court AF F IRMS the district court’s judg ment.

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