NOT RECOMMENDED F OR F ULL-TEXT PUBLICATION File Na me: 12a0279n.06 No. 10-6133 UNITED STAT ES COURT OF AP P EALS F OR THE S IXTH CIRCUIT

UNI TED STATES OF AMERI CA, P laintif f-App ellee,

v. ANTHO NY L AMAR, Defendan t-Appellant.

_______________________________________ ) ) ) ) ) ) ) ) ) ) ON APPEALFROM THE UNI TED STATES DI STRI CT COURT FOR THE E ASTERN DI STRI CT OF KE NTUCKY

O P I N I O N

Before: M OORE, S UTTON, and DONALD, Circ uit Jud ges. KA REN N EL SO N M OO R E, C ir c ui t J ud g e . D e f

e n d a n t- A p p e ll a n t A n th o ny L a

mar appea ls his jury conviction for distribution and possession of five hundred g rams or more of coca ine. L amar seeks a new trial on the basis of three p u rp o rt ed err ors: (1) the district court’s ref usal to make a preliminary deter

mination reg arding the admissibili ty of coconspirator statements used at trial; (2) the dis t ri ct court’s alleg ed failure to evalua te appropr iately the admissibili ty of Fe dera l Rule of Evidence 404(b) materials; and (3) the di strict court’s failure to strike t he gover nment’s i mproper vouching and bols tering of i t s witnesses’ credibility

. After consideration of t he errors that L amar claims, we AF F IRM his conviction and the judg ment of the district cour t. I. BACKG ROUND & P ROCEDURE On November 19, 2009, L amar was indicted for conspiring to distribute and to possess with the intent to distribute five hundred or more g rams of coca ine, in violation of 21 U.S.C. §§ 841(a) (1),No. 10-6133

United States v. Lamar

846. The alleg ed conspirac y revolve d around a man named Fr ed L ewis, who came to the attention of the FB I ’s Safe Streets Task For ce in 2006. L ewis sold coca ine and other drug s to users and lowerlevel tra fficke rs in the Cincinnati, Ohio and Northe rn Ke ntucky are as. Be g inning in October 2007 and extending throug h mid-J une 2008, the FB I obtained a series of court order s authorizing the interce ption of phone calls to and from L ewis’s phone. During that period, L amar , wh o al s o went by the alias “Rock,” was one of L ewis’s drug suppliers. Although
most of the interac tions betwee n L ewis and L amar involved sales o f “c u s h,” which is a form of high- end marijuana , the g overnme nt produce d testimony indicating the exis tence of three occa sions

on which L amar sold L ewis kilogr am quantities of co ca i n e. The vast majority of the evidenc e ag ainst L amar perta ined to only one of these drug buy s, which was completed on May 7, 2008. Wit h respe ct to that particula

r purcha se, office rs initially interce pted a call during which L amar stated that he could supply L ewis with coca ine the following day at a price of $23,000 or $23,500 per kilogr am. That interce pted call betwee n L ewis and L amar followed a series of calls betwee n L ewis and other coconspirators in w h ic h L e w is s o u g ht to obtain kilogr am quantities of coca ine from other individuals but was unsucce ssful in doing so. The call also came afte r office rs conducting surveillance on L ewis observe d L ewis enter ing the Be ekman Var iety Mart wher e L amar worke d. At trial, L ewis testified
t h at h e h ad visited L amar to obtain some marijuana and that over the course of their interac t i o n , L ewis rela

y ed to L amar his previous eff orts to obtain cocai ne. L ater that day in a separ ate interce pted call, L ewis and L amar arr ang ed to pay for the coca ine at L ewis’s home, which was under surveillance at the time. After L amar arr ived and while L amar was still inside, L ewis made another

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interce pted call to inform a buy er that he was with the source and that they had multipl e kilogr ams of coca ine available for $24,500 eac h. L ewis expressed a simil ar offe r to another buy er in a separ ate i n t er ce p ted call shortly there afte r. After another series of interce pted calls, including a few mor e betwee n L ewis and L amar , L amar delivere d the coc aine to L ewis later that day

. L ewis and L amar beg an discussing the purcha se of a second kilogr am of coca ine a few hours later, but that purcha se

was ne ver c ompleted. Af t er t hree day s of testimony and the repla y ing of dozens of taped phone calls, the j u ry returne d a g uilty

verdic t ag ainst L amar . The district court then sentenc ed L amar to 156 months in prison and eig ht y ear s of supervise d rele ase. This a ppeal f ollowed. II. ANALYSIS A. The Coconspirator Testim ony L amar first arg ues that the district court’s decision to admit coconspirator statements without making a pre liminary

deter mination as to the ir admissibili ty war rants a new

trial. Fe dera l Rule of Evidence 801(d)( 2)(E) excludes from the hear say rule statements that are “m ad e b y t he party ’s coconspirator during and in further ance of the conspi r a c y .” Be fore such statements may be admitted, howeve r, the g overnme nt m u s t es tablish “thre e foundational prer equisites”: “that a conspirac y exis ted; that [t he] defe ndant was a member of the conspirac y ; and that the decla rant’s statement was

m ad e d u ring the course and in further ance of t he conspiracy .” United St ates v. C onrad , 507 F.3d 424, 429 (6th Cir. 2007) (alter ation in orig inal) (quoting United States v. Maliszewski , 161 F.3d 992,

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1007 (6th Cir. 1998)). These prer equisites must be established by a preponde ranc e of the evidenc e based on the district court’s finding s of fa ct. Id. (citing Fe d. R. Evid. 104(a))

. Prior to trial, L amar ’s defe nse counsel filed a motion for a pretria l hear ing pursuant to United States v. Enright , 579 F.2d 980 (6th Cir. 1978), to deter mine the admissibili ty of any coconspirators’
statements that the g overnme nt would seek to admit under the coconspira tor exception to the hear say rule. The g overnme nt then fi led a bill of particula rs detailing its intent to rely on testimony of 1 coconspirators and the fac ts it soug ht to prove at trial, including the scope of the conspirac y , L amar ’s role a s a drug supplier, and the de tails surrounding a particula r sale of coca ine that was neg otiated wi t h L amar on May 6, 2008 and executed the following day

. After revie wing the g overnme n t ’s proff ere d evidenc e, the district court deter mined that a pretria l hear ing was unnece ssary and denied L amar ’s reque st, deciding instead to admit the coconspirators’ hear say statements conditionally subject to the g overnme nt’s eventua l demonstration of their admissibili ty

. The district court stated that it was “satisfied, assuming the Gover nment is able to admit evidenc e consistent with its Bill of Particulars, that there will be sufficie nt e vidence of a conspirac y to distribute powder and/or c rac k

coca ine which includes both Def endant L amar and the decla rants, and that those statements wer e made dur ing a

nd in further ance of the a lleg ed conspira cy .” R. 51 (Dist. Ct. Order at 4). L amar ’s challeng e to t h e adequa cy of the district court’s fac tual deter mination on the admi s sibili ty of the coconspira tor statements is ref

uted by the rec ord. I nstead, as the trial rec ord Although L amar ’s orig inal attorne y was remove d due to a conflict of interest while the 1 motion was pending, his newly reta ined co u n s el filed a motion seeking to move forward with the orig inal reque st for a pr etrial he aring

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clea rly demonstrates, the district court did make the requisite finding. Towar d the end of the fir st day of t rial and be fore the g overnme nt beg an play ing the rec orded te lephone c alls for the jury , the district judge stated for the rec ord his deter mination that the g overnme nt had produce d sufficie nt non-hea rsay testimony to establish by a preponde ranc e of the evidenc e that a conspirac y exis ted involving L ewis and L amar , that any statements in 2008 wer e made during the conspirac y , and that statements setting up coca ine purc hases or deliverie s were in further ance of the c onspiracy . After

re viewing the rec ord, we do not find those deter minations to be err oneous. Cf. United States v. Gonzal ez , 5 0 1 F.3d 630, 636–37 (6th Cir. 2007) (af firming a district court’s g ener al finding that
statements fell within the co conspi rator exception to the hear say rule wher e the g overnme nt had prese nted a substantial amount of non-he arsa y testimony

about the intera ctions betwee n members of an a lleg ed drug

conspirac y

). To the extent that L am ar ’s claim challeng es the district court’s ref usal to g rant a pretria l hear ing, it is without merit. Our case s make clea r that the district court has considera ble discretion in deter mining how best to handle evidentiary issues. See, e .g. , United States v. Vinson , 606 F.2d 149, 152 (6th Cir. 1979) (“A trial judge must ha ve considera ble discretion in controlling the mode and order of proof at trial

. . . .”), cert. denied , 444 U.S. 1074 (1980). Although a “mini hear ing” to deter mine whether the g overnme nt may use coconspira tor statements i s o ne method of ensuring confor mance with the coconspirator exception to the hear say rule, it is by

no means the only

one. See id. A district court is also at liberty to “admit the hear say statement s s u b j ec t t o later demonstration of their admissibili ty by a preponde ranc e of the evidenc e,” id. at 153, which is exactly

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what the district c ourt did he re. There was no err or on this g round. Be cause L amar has not raised any specific objections to the sufficie ncy of the evidenc e on any one of the three foundational fac tors descr ibed above, no further analy sis is need ed. We conclude that a retrial i s not war rante d on the basis of the district cour

t’s admission of the coc onspirator stateme nts. B. Rule 404(b) Be fore trial, the g overnme nt provided notice to L amar of its intent to introduce evidenc e that, in addition to the coca ine transac tions at issue, L amar had s old small quantities of marijuana to individual coconspirators. The notice explained that the g overnme nt planned to introduce the evidenc e to show how the witnesses knew L amar and beca use the marijuana sales wer e “inextricably intertwined” with the char g ed offe nses and there fore “nec essar y to explain the circ umstances of the char g ed conduct.” R. 53 (Notice of I ntent to Offe r Evidence at 2). I n response , L amar filed a motion in limine to exclude the evidenc e, opposing any ref ere nce by the g overnme nt to L amar ’s marijuana sales. At trial, the district court denied the motion in limine and overr uled L amar ’s Rule 404(b) objection. I n his oral ruling , the district court conclude d that the evidenc e was “not char acte r evidenc e as define d under 404(b).” R. 93 (Da y 1 Trial Tr. at 3). Acc ording to the district court, the evidenc e both explained why the coconspirators knew L amar and g ave an explanation for a ref ere nce to “cush” in one of the taped phone calls in which L ewis ref er re d t o L amar in a discussion with another of the alleg ed coconspirators. Fur thermore , the district court found that the close temporal

connec tion to the coca ine transac tion a lso ma de the evidenc e admissible a s “bac kg round evidenc e

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and nece ssary to c omplete the story of the c harg ed off ense.” Id. On appe al, L amar maintains that the district court admitted the evidenc e of t h e m ar i j u ana sales without eng ag ing in a proper Rule 404(b) a naly sis, which he conte nds warr ants rema nd for a new tria l. Fe dera l Rule of Evidence 404(b) require s the ex clusion of ot her- acts evidence used for no purpose other

than to sug g est a pa

rty ’s action in confor

mity with such prior acts. United St ates v. Truji llo , 376 F.3d 593, 605 (6th Cir. 2004). We have held time and ag ain, howeve r, that backg round evidenc e, “ofte n ref

err ed to as ‘ res gestae ,’ does not implicate Rule 404(b).” United States v. Hardy , 228 F.3d 745, 748 (6 t h C ir. 2000). The exception for backg round evidenc e is narr ow and is not intended to permit easy evasion of the constraints of Rule 404(b). United States v. Clay , --- F.3d-

--- , 2012 WL 43592, at *7 (6th Cir. 2012). As a g ener al matter, e vidence falling within the exception is limit ed to that which “has a causa l, temporal or spatial connec tion with the char g ed offe nse,” such

as evidenc e that “is a prelude to the char g ed o ff en s e, i s direc tly probative of the char g ed offe nse, arises from the same events as the char g ed offe nse, forms an integ ral part of the witness’s testimony ,
or completes the s t o ry of the char g ed offe nse.” Hardy , 228 F.3d at 748. We revie w the district court’s de cision to admit evidence pursuant to the bac kg round-e vidence exception f or an abuse of discretion. See Clay , 2012 WL 43592, at *3, *7–8. The hand fu l o f ref

ere nces to L amar ’s marijuana sales in this case are closely tied to the explanation as to how L amar knew the coconspirators and how he beca me involved in the coca ine conspirac y . For instance, during L ewis’s testimony , L ewis explained that the inception of the May 7th coca ine sale beg an as he was purcha sing marijuana from L amar . I n a rec orded call with another

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United States v. Lamar coconspirator shortly afte r t hat intera ction, L ewis explained that he ha d found a sour ce of coca ine throug h “Rock from the store, with the cush.” R. 98 (Da y 2 Trial Tr. at 40). The marijuana sales

came up ag ain wh en Ge rr ai l l Miller, who was on the rec eiving end of the call from L ewis that identified L amar as the source of coca ine, testified about that telephone interac tion with L ewis. R. 104 (Da y 3 Trial Tr. at 27). Miller a lso testified that the voice in the earlier call was L amar ’s and confirme d that the coded lang uag e involved coca ine. Id. As g roundwork for those conclusions, the g overnme nt elicited testimony that Miller, himself, purcha sed marijuana from L amar so as to demonstrate the exis tence of prior interac tions betwee n the two. Id. at 24. Finally , to establish that L ewis’s phone calls with L amar rela ted to coca ine ra t h er than marijuana , the g overnme nt used testimony about the n at u re o f t h e marijuana sales to establish that those sales wer e much less involved and re quired no c oordination to acc omplish. We ag ree with the district court that these ref ere nces to L amar ’s marijuana sales wer e admissible as backg round evidenc e to show how L amar beca me involved in the conspirac y and how he was associate d with various coconspirators. Cf. United States v. Paulino , 935 F.2d 739, 755 (6th Cir.) (conc luding that the district court did not abuse its discretion by admitting the defe ndant’s prior drug deals to show “the backg round and development of a conspirac y ” (interna l quo t at ion marks omitted)), cert. de nied , 502 U.S. 914 (1991); United St ates v. Galindo , 95 F. App’ x 160, 163 (6th C i r.) (dete rmining that evidenc e of prior small drug transac tions was permissible to sho w t h e

connec tion between the defe ndant and another coconspira tor), cert. denied , 543 U.S. 889 (2004). L amar ’s marijuana sales also had the requisite temporal connec tion and helped to explain the

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United States v. Lamar inception of the offe nse. Acc ording ly , the distr i ct judge did not abuse his discretion in admitting them. L amar ’s arg ument that the district judge failed to apply the corr ect Rule 404(b) analy sis prior to admitting this evidence is theref ore w ithout merit. C. P rosec utorial Misconduct I n his final arg

ument, L amar contends that the district court err oneously permitted testimony that was elicited by the g overnme nt from multipl e coconspira tor witnesses conce rning a require ment under eac h of their plea ag ree ments to provide truthful testimony in order to avoid either losing their
sentenc e reduc tions or fac ing char g es of perjury

. L amar further arg ues that the g overnme nt’s closing arg ument improperly vouched for the truthfulness of the witnesses’ testimony an d t hat the g overnme nt improperly bolstered that testimony by indicating that the g overnme nt “had some secr et method by which to deter mine whether coconspirators wer e telling the truth.” Appellant Br

. at 29. “I mproper vouching occur s when a prosec utor supports the cre d i bility of a witness by indicating a per sonal belief in the witness’s cre dibilit y there by placing the prestig e of the office of the United States Attorney behind that witness.” United States v. Franc is , 170 F.3d 546, 550 ( 6th Cir. 1999). Bolster ing, on the ot her hand, “occ urs whe n t h e p ro s ecutor implies that the wit ness’s testimony is corr oborate d by evidenc e known to the g overnme nt but not known to the jury .” Id. at 551. We evalua

te this ty pe of prosec utorial misconduct using a two-par t test that looks first t o whether the rema

rks wer e im p roper and second to whether the impropriety resulted in reve rsible

err or. United States v. Jack son , 473 F.3d 660, 670 (6th Cir.), cert. denied , 550 U.S. 952 (2007). I n evalua ting the second prong , we must deter mine whether the prosec utor’s misconduct was flag rant,

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whi ch we do by assessing four fac tors: “(1) whether the rema rks tended to mislead the jury or to prejudice the acc used; (2) whethe r [ t h e remarks] wer e isolated or extensive; (3) whether [t he

rema rks] wer e delibera

tely or acc identally place d befor e the jury ; and (4) the streng th of the evidenc e ag ainst the ac cused.” United States v. Carroll , 26 F.3d 1380, 1385 ( 6th Cir. 1994). Be cause L amar ’s counsel did not object to the rema rks that L amar now challeng es on appea l,

we revie w his claim for improper vouching and bol s t er i n g only for plain err or. United States v. Henr y , 5 45 F.3d 367, 376 (6th Cir. 2008). Particularly in the context of plain-er ror revie w, “[i] nappropr iate but isolate d prosec utorial comments do not w arr ant a new trial.” United States v. W ells , 623 F.3d 332, 338 ( 6th Cir. 2010), cert. de nied , 131 S. Ct . 1534 (2011). L amar points first to the g overnme nt’s direc t examin a ti o n o f n u me r o u s c o o p e r a

ti n g w itnesses during which t h e go v er n m ent elicited testimony about the witnesses’ plea ag ree ments and the

corr esponding obliga tion of eac h witness to provide truthful testimony

. Those exchang es g ener ally also included a rec og nition by eac h witness that he or she would not rec eive any sentenc e reduc tion if the testimony was false and that he or she would fac e perjury char g es for such testimony

. See R. 93 (Da y 1 Trial Tr. at 92–92); R. 98 (Da y 2 Trial Tr. at 207–08); R. 98 (Da y 2 Trial Tr. at 221); R.98 (Da y 2 Trial Tr. at 233–34); R. 104 (Da y 3 Trial Tr. at 28–29); R. 104 (Day 3 Trial Tr. at 38–39); R. 104 (Da

y 3 Trial Tr. at 54); R. 10 4 (D ay 3 T ri al Tr. at 65). I n no exchang e did the prosec utor make any statement sug g esting that he would be responsibl e fo r fi l ing a § 5K.1 motion or for evalua ting the truthfulness of the testimony

. Cf. W ells , 623 F.3d at 342 (“ [ A] prosec utor may

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proper ly point out that a witness’s consideration for a plea barg ain is telling the truth, but he may not state (or even strong ly

imply ) that it is he who shall be the a rbiter of truth . . . .”). W e h ave held repe atedly that it is acc eptable for prosec utors to elicit testimony abou t a

co o p er at ing witness’s plea ag ree ment and about the conseque nces that witness could fac e for providing false testimony

. United St ates v. Re i d , 6 2 5 F. 3 d 977, 982 (6th Cir. 2010). I ndeed, one such ca se involved circ umstances quite similar to those at issue he re. The re,

eac h of the c oopera

ting witnesse s testified in very simil ar terms that he had ag ree d as part of his plea to testify truthfully if called as a witness; that his truthful testimony could result in the filing of a motion for reduc tion of sentenc e; that the deter mination of whether to reduc e his sen t en ce would be made by the judge ; and that he would lose the chanc e for a reduc tion in sentenc e and would fac e additional perjury char g es if he testified f

alsely

. Id. We thus cannot conclude that the gover nment acte d improperly

by eliciting suc h testimony

in this case. A few of the statements in the g overnme nt’s closing arg ument prese nt a somewhat closer question. I n particula

r, whe n reiter ating the wit nesses’ obligations under their pl ea ag ree ments to p r ovide truthful testimony , the prosec utor at one point in closing arg ument stated that “[t] he e v id e n c e

was all these people wer e g iven one simple rule. Tell me the truth. J u s t t el l t h e truth. That’s all that’s require d of them, and they’ ve done it. ” R. 104 (Da y 3 Trial Tr. at 147) (empha sis added)

. That
statement comes perilously close to imparting the prosec utor’s imprimatur of truth on the testimony of the cooper ating wi t n esses. I n addition, a short while later, the prosec utor also told the jury to “[t] hink about how [t he witnesses] testified. They wer e all very car eful to try and avoid exagg era ting things or say

ing things that g o bey ond what was strictly true. All of them wer e car eful.” Id. at 149. 11No. 10-6133

United States v. Lamar Although the rema

rks that followed explained the prosec utor’s char acte rization of the witness testi m o n y as “ca

ref ul” and avoiding exagg era tion by providing concr ete examples of witness statements and de meanor , the prosec utor’s re marks ar e still quit e troubling

. 2 Nonethele ss, even if we assume that these statements wer e improper, they wer e rela t i v el y isola t ed and appea

r to have been non-deliber ate. Given the streng th of the evidenc e implicating L amar in the coca ine sales, including coconspirat o r testimony , police surveillance corr oborating

cer tain in-person interac tions betwee n L amar and L ewis, and taped telephone conver sations, the prosec utor’s st atements were not so flag rant as to war rant a new tria l. Cf. W

ells , 623 F.3d at 344; Jack son , 473 F.3d a t 672. The district court ther efor e did not plainly err in failing to strike them. III. CONCLUSION Be cause L amar has not demonstrated that the district court committed any evidentiar y err or or t hat i t committed plai n er ro r b y p ermitting improper vouching or bolstering of t he gover nment witnesses’ c redibility , we AF F IRM L amar ’s conviction and the judgme nt of the district court.

I n contra st, we also note that a few of the closing statements to which L amar objects in his 2 brief have been remove d from their contextual foundation. When place d in context, the statements are much less suspect. For example, L amar points to the prosec utor’s statement that “[w]e’re g oing to look at ot her pieces of information t o verify what [ the wit ness es ] s ay ” as evidenc e of improper bolstering

. Appellant Br

. at 27 (quoting R. 104 (Da y 3 Trial Tr. at 148)). I n context, howeve r, the statement follows the prosec utor’s discussion of the risks of ly ing in light of the exis tence of taped phone calls. Although the phrasing leave s something to be desired, it does not improperly insinuate that outside evidenc e exis ts that would confirm or dispel the witnesses’ statements. Cf. Jack son , 473 F.3d at 670–72 (noting the require ment that a prosec utor’s comments be viewed in their full context when e valuating them for improprie ty ). 12