NOT RECOMMENDED F OR F ULL-TEXT PUBLICATION File Na me: 12a0253n.06
No. 10-1017
UNI TED STATES COURT OF A PPEAL S FOR THE SI XTH CI RCUI T
UNI TED STATES OF AMERI CA, Plaintiff-Appellee ,

v. ADARUS MAZ I O B L ACK, aka Dude, aka Chuck, aka

Mark Andr ea G illery , J r., aka Shamario L amont Kidd, aka Shama rio L . Carr, Def endant- Appellant. ) ) ) ) ) ) ) ) ) ) ) ) ) ON APPEALFROM THE U NI TED STATES DI STRI CT COURT FOR THE EASTERN DI STRI CT OF MI CHI GAN

Be fore : GRI FF I

N and KE THL EDGE, Circuit Judges; THA PAR, District J udg e. *

PER CURI AM. Adar

us Mazio Bla ck was convicted in separ ate jury trials of conspirac y to
possess with intent to distribute and to distribute coca ine and mar ijuana, in violation of 21 U.S.C. §§ 841 and 846, and escape or attempted e scape from federa l custody , in violation of 18 U.S.C. §
751. The district court sentenc ed Bla ck to consec utive prison terms of life on the conspirac y count and twenty -four months on the esca pe count. Bla ck raises sever al challeng es to his conviction and

sentenc e for the drug conspirac y . For the following rea sons, we aff irm the district court’s judgme nt.

The Honor able Amul R. Thapa r, United States District Judge f or the Ea stern District of * Kentucky , sitti ng by

desig nation.No. 10-1017 - 2 - Bla ck first arg

ues that the district court abused its discretion and violated his constitutional rig hts by not holding a hear ing to deter mine whether

he wa s competent to stand trial. The district

court must g rant a motion by a defenda nt or t he gover

nment for a competenc y h ear ing “if t here is

rea sonable cause to believe that the defe ndant” is mentally incompetent to stan d t ri al. 18 U.S.C. § 4241(a)

. Even a

bsent such a motion, “a

court is re quired to orde r such a hearing if the s tatutory standard of ‘re asonable cause ’ is satisfied.” United States v. De nkins , 367 F.3d 537, 545 (6th Cir. 2004) (citation omitted). A defe ndant is incompetent if he “lac k[s] either a ‘suffic ient prese nt ability

to consult with his lawy er with a rea sonable deg ree of rational understanding ’ or ‘a rational as well

as fac tual understanding of the proce eding s ag ainst him.’” United States v. Miller , 531 F.3d 340, 350 (6th Cir. 2008) (quoting Drope v . Missouri , 420 U.S. 162, 172 (1975)). The district court g rante d the g overnm en t’s motion for a competenc y deter mination afte r Bla ck’s esca

pe attempt. Following a month-long competenc y evalua tion conducte d by the Bur eau of Prisons, a psy cholog ist deeme d Bla ck competent to stand trial. Although Bla ck’s second attorney , Paul Curtis, informed the district court that Bla ck had asked him to move fo r an independe nt
p s y c h o lo g ic al evalua tion to deter mine his competenc y , neither Bla ck nor his attorney s ever f il e d s u c h

a motion, and none of his subsequent attorney s re quested a competenc y hear ing. Under these circ umstances, Bla ck abandone d the competenc y issue. See Denk ins , 367 F.3d at 546 (holding that “the district court was not obliga ted to press forwa rd” when the defe ndant did not pursue his incompetenc y

arg ument afte r an e valuation dee med him competent).
Fur ther, there was insufficient evidenc e of incompetenc e in the rec ord tr i ggering a due
proce ss rig ht to a competenc y hear ing. See id. at 547-48. As we observe d in simil ar circ umstances, “a defe ndant is not rende red incompetent to stand trial mere ly beca use he cannot g et along with his counsel or disapproves of his attorney ’s performanc e.” Miller , 531 F.3d at 349. None of Bla ck’sNo. 10-1017 - 3 - attorney s expressed doubt r eg arding his c ompetence , the psy cholog ist who ex amined B lack found that he was competent to stand trial, and the rec ord reflec ts that Bla ck, although showing signs of
para noia, understo o d t h e proce eding s and was able to participa te actively in his own defe nse. Notably , Bla ck does not identify any actions, aside from his esca pe attempt, that should have cause d the district court to que stion his competenc y ; in fac t, he sug g ests that the g overnme nt’s motion for

a competenc y evalua

tion wa s unwar

rante d and was desig ned to de lay his tria l a nd obtain acc ess to confide ntial information. Acc ording ly , the district court was not constitutionally obliga ted to order sua sponte a c ompetency

hear ing a nd committed no error

by failing to do so. See id. at 349-50. Bla ck next arg ues that the district court abused its discretion and violated his Fifth and Six th Amendment rig hts by deny ing his ne wly reta ined attorney ’s motion for a continuance

. We revie w this ruling for abuse of discretion. See United States v. W arshak , 631 F.3d 266, 298 (6th Cir. 2010). The denial of a conti n u an ce motion “amounts to a constitutional violation only if there is an

unrea soning and arbitra

ry insistence upon exped i tiousness in the fac e of a justifiable reque st for delay .” Id. (citations and internal quotation marks omitted). Additionally , reve rsal is war rante d only if the defe ndant shows that the denial resulted in actua l prejudice

. Id. “Actual prejudice is established by showing that a continuance would have made rele vant witnesses available or added something t o t h e defense.” United St ates v. C rossley , 224 F.3d 847, 855 (6th Cir. 2000) (citation and interna l quotation marks omitted). Bla ck arg ues that his six th trial attorney , who he reta ined approximately eig ht wee ks befor e the schedule d trial date, did not have enoug h time to obtain a complete case file, adequately revie w the discovery materia ls, or interview o r s u b p o ena witnesses in prepa ration for trial. Bla ck also
arg ues that his attorney neede d more time to g ather evide n ce i n s u p port of his alleg ations of misconduct by t h e go v ernment and his former attorney s. Bla ck fails, howeve r, to identify anyNo. 10-1017 - 4 - specific witnesses that should have been called at trial o r o t h er wi se demonstrate actua l prejudice arising from the denial of his continuance motion. Moreove r, at the same time that Bla ck soug ht to postpone his trial, he also complained that his rig ht to a speedy trial was being violated. Under these circ umstances, Bla ck has failed to demonstrate that the district court acte d arbitra rily by deny ing his motion for a continuance or that he suffe red actua l prejudice as a result. See W arshak , 631 F.3d at 298-99. Bla ck also arg ues t hat t he dis trict court abused i t s d i s cre tion by deny ing his reque st for an evidentiar y hear ing on the alleg ations of misconduct by the g overnme nt and his prior attorney s that

we re ra i s ed in his motions to dismiss the indictment, including his alleg ations that (1) th e
g overnme nt threate ned to prosec ute his friends a nd family members if the y assisted in his de fense and filed a false complaint ag ainst one of them in order to obtai n i n fo rm ation to use ag ainst him; (2) his prior attorney s repr esente d g overnme nt witnesses and improperly share d information with the g overnme nt; and (3) the g overnme nt eng ag ed in other “inappr opriate behavior ,” such as placing
cooper ating individuals in jail wi t h h i m t o obtain incriminating statements, seizing confide ntial information from his cell, g iving him truth serum, and improperly subjecting him to g enetic testing.
Ex cept in rar e cir cumstance s, the reme dy for pr osecutoria l misconduct that interfe res with a def endant’ s rig ht to the eff

ective assistance of counsel is not dismissal of the indictment, but the suppression of particula

r evidence or reve rsal of the conviction. See, e.g. , United St ates v. Clark , 319 F. App’x 3 9 5, 400 (6th Cir. 2009). Absent some showing that the alleg ed misconduct “substantially influence d” the g rand jury ’s decision to in d i ct , pre- trial dismiss al of the i ndictment is not war rante d. Bank of Nova Scotia v. United States , 487 U.S. 250, 256 (1988). Be cause Bla ck did not alleg e re m o t ely plausible fac ts that would have supported di smissal of t he indi ctment, t he district court did not err

by deny ing his r equest for an evidentiar y hear ing. Id .; cf. United States v.No. 10-1017 - 5 - Simpson , 226 F. App’x 556, 560 (6th Cir. 2007) (holding that, beca use the defe ndant did not alleg e fac ts that would war

rant dismiss al based on vindictive prosec ut i o n , t h e district court was not require d to g rant his r equest for a n evidentiar

y hear ing) ; cf. W

illiams v. Bagley , 380 F.3d 932, 977 (6th Cir. 2004) (holding t hat “bald asser tions and conclusory

alleg ations do not provide sufficient
g round to war

rant . . . a n evidentiar

y hear ing” ).
B la c k next arg ues that there was a prejudicia l varia nce betwee n the single conspirac y char g ed in the indictment and the evidenc e produce d at trial, and that the district court err ed by deny ing his
reque st for a multipl e conspirac y jury instruction. “[W ]hen the evidenc e is such that the jury could wi t hin rea son find more than one conspirac y , the trial court should g ive the jury a multipl e conspirac y instruction.” United States v. Kelsor , 665 F.3d 684, 695 (6th Cir. 2011) (quoting United
States v. W

arner , 690 F.2d 545, 551 (6th Cir. 1982)). “The dang er such an instruction seeks to avoid

. . . ‘is the transfe renc e of g uilt from defe ndants involved in one conspirac y to defe ndants in another conspirac y , such that a defe ndant is convicted for a conspirac y for which he was not indicted.’” Id. (quoting United States v. Caver , 470 F.3d 220, 24 6 (6th Cir. 2006)). When the evidenc e demonstrates multipl e conspirac ies, the failure to g ive the instruction is prejudicial “if the er ror of try ing multi ple conspiracies under a single indictment substantially influence d the outcome of the trial.” Caver , 470 F.3d a t 237. Bla ck cannot demonstrate prejudice fr o m the district court’s failure to g ive a multipl e conspirac y instruction. Even if it is assumed that multipl e drug conspirac ies exis ted, the g overnme nt produce d sufficie nt evidenc e establishing that Bla ck, the sole defe ndant, play ed a centr al role in eac h conspirac y . As in Caver , “this [i s] not a case wher e a defe ndant with a re l at i v el y minor role was forc ed to endure an extended trial wher e the bulk of the evidenc e did not perta in to him.” 470 F.3d

at 237. Under these circ umstances, reve rsal is not war rante d. See id. ; cf. United States v. Goff , 400No. 10-1017 - 6 - F. App’x 1, 13 (6th Cir. 2010) (holding that the defe ndant was not prejudice d by the failure to g ive

a multipl e conspirac y instruction beca use he was the only defe n d an t t ri ed and was an “integ ral participa nt” in eac h conspirac y , he was not surprised by the introduction of evidenc e of the differ ent conspirac ies, and “the differ ent conspirac ies wer e clea rly delineate d chronolog ically ”), cert. denied , 131 S. Ct . 1032 (2011). Bla ck next challen ges the admission of videotaped statements made by a co-c onspirator, Chris Perez, to J o h n Be n s o n , an attorney and drug traff icker who was acting as confide ntial informan t for the g overnme nt. Co-conspirator statements are admissible under Fe dera l Rule of Evidence 801(d)( 2)(E) if the g overnme nt demonstrates t h at: “(1) the conspirac y exis ted; (2) the defe ndant was a member of the conspirac y ; and (3) the co-c onspirator made the proff ere d statements in further ance of the c onspiracy .” United States v. W arman , 578 F.3d 320, 335 ( 6th Cir. 2009). Bla ck arg ues that the statements in the videotape constituted inadmissibl e hea rsay beca use there was no evidenc e that h e wa s i n v o lved in a conspirac y with Be nson, neither Be nson’s

statements nor Perez’s statement wer e in further ance of any conspirac y with which Bla ck was alleg edly involved, and the statements wer e protec ted by the attorney -client p ri v i l ege. But Bla ck called and s p o k e wi t h Benson during the meeting , demonstrating that Be nson was part of the conspirac y . Moreove r, Perez and Be nson did speak “in further ance ” of the conspirac y beca use Perez updated Be nson on the conspirac y ’s status: For example, Perez discussed future coca ine deals and disclosed that Bla ck killed someone i n t h e d ru g b usiness. See W arman , 578 F.3d at 338. Additionally , Bla ck fails to offe r any develope d arg umen t challeng ing the district court’s deter mination that he did not have standing to invoke the attorney -client privileg e on behalf of Perez. Acc ording ly , we find no err or in the district court’s decision to admit Perez’s statements under Rule 801(d)( 2)(E)

.No. 10-1017 - 7 - Finally , Bla ck arg ues that the district court err ed by imposing a life sentenc e based on fac ts that wer e found by the district co u rt b y a preponde ranc e of the evidenc e rathe r than by the jury bey ond a rea sonable doubt. I t is well established, howeve r, that the Six th Amendment is not violated by the district court’s relianc e on judge -found fac ts to enhance a defe ndant’s sentenc e, so long as those fac ts are sup p o rt ed by a preponde ranc e of the evidenc e and the sentenc e imposed does not exceed the statutory maxi mum. See, e.g. , United States v. W hite , 551 F.3d 381, 384 (6th Cir. 2008) (en banc) ; United States v. Sexton , 512 F.3d 326, 330 (6th Cir. 2008)

. Acc ording ly , this a rg ument is without m erit.
For these re asons, we a ffirm the district c ourt’s judg ment.