UNITED STATES v. STINES (2002)

OPINION

Defendants Joseph Rovess Stines, Durand Chaunce Ford, Keith Maurice Phelan and Kenneth Andrew Jefferson challenge, on a wide variety of grounds, their convictions and sentences following a jury trial in the district court.   All four defendants were found guilty of conspiring to distribute and to possess with intent to distribute cocaine and cocaine base, in violation of 21 U.S.C. §§ 841(a)(1) and 846.   For the reasons that follow, we affirm the district court.

Because resolution of defendants' sentencing issues concerning the application of the rule from Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000), and its progeny, in particular, United States v. Cotton, 535 U.S. 625, 122 S.Ct. 1781, 152 L.Ed.2d 860 (2002), may have precedential value, those issues will be addressed below.   The remaining issues raised by defendants are addressed in an unpublished appendix to this opinion.

Background

The voluminous testimony and other evidence introduced at trial established the following facts.   In the late 1980's Joseph Stines organized a gang in Ypsilanti, Michigan, to “distribute crack cocaine and make money.”   The initial members included Keith Phelan, Tever Scarbrough, Reese Palmer, Rasual Warren, Hans Thomas and Stanley Anderson.   Stines and Palmer learned to measure, package and “rock up” crack cocaine in 1989.   Together with Hans Thomas, they obtained large quantities of cocaine from LaBaron Hunter and other sources in Detroit and brought it back to Ypsilanti to be processed and distributed.

During the early years, Stines sold directly to customers, sometimes out of a parked car.   Stines was arrested in June 1989 for selling crack on the street.   By 1993, Stines considered himself a “drug kingpin,” and he divided up and assigned territory to other members.

In May 1995, Oscar Little, an acquaintance of Stines, agreed to cooperate with the police.   Little purchased one ounce of crack directly from Stines at an apartment on Elmwood.   The purchase and other information supplied by Little provided probable cause to search the apartment on Elmwood and Stines's apartment on Spinnacker Way. Stines and Phelan, along with other gang members, were present when the Spinnacker Way apartment was searched.   No measurable amount of cocaine was recovered but police recovered $680 in recorded currency from the sale to Little and a bowl containing cocaine residue, filter masks and an assault rifle.   Stines was arrested after the search and he offered to cooperate with the police.   He told Lieutenant Donald Bailey that he was buying ten to fifteen kilograms of cocaine from LaBaron Hunter every couple of weeks.   Bailey released Stines, hoping to use him to investigate Hunter, but Stines did not cooperate.

Rasual Warren, one of the original gang members, was released from a rehabilitation program in July 1996.   Phelan directed Warren to JJ's Car Wash when he asked about Stines.   Stines introduced Durand Ford as his “right hand man” and Phelan as his “enforcer.”   Initially, Stines said that he wasn't in the drug business any more, then said he still sells but “keeps it in the Stone Life [gang] circle.”   Stines assigned Warren to sell crack on Grove Street, but he was later moved to make room for Palmer.   Warren accompanied Stines to a house on Calder Street that belonged to Ford's grandmother.   Stines retrieved two ounces of crack from the house.   After Warren was arrested in 1996, Stines moved the cocaine and some guns from the house on Calder, but he told Palmer that he left one gun behind so that Ford would have protection.   Based on information from Warren, police searched the house on Calder and found one handgun in the bedroom that appeared to be occupied by Ford.

After Palmer was released from prison in September 1996, he chose Grove Street as his territory.   One of his customers was a white male called “Eric,” an undercover police officer.   Palmer made several sales to Eric in October and November 1996.   Palmer was arrested based on those sales.   He agreed to cooperate with the police and taped a conversation with Stines during which Stines talked about tactics to evade police by revealing that he did not “go outside the circle,” and he had Ford deal with everyone else.   After Palmer bought crack from him, Stines left in a car driven by Ford.

Police managed to make a series of undercover crack purchases from Scarbrough in July 1997.   Scarbrough arrived for the third meeting in a car registered to Kenneth Jefferson.   After Scarbrough was arrested, he allowed police to record a conversation with Stines that provided police with Stines's Doral Street address.   Scarbrough also bought an ounce of crack from Stines while police surveilled from a distance.   Two days later, Scarbrough met Stines outside a store to pay for the crack.   While they talked in the car, Phelan took some other men who had accompanied them into the store.

Later that same year, Jefferson sold Labron Nunn two and a half ounces of crack.   Jefferson obtained the crack for the sale from Anita Hargrove's home, where he was staying.   Hargrove was Stines's girlfriend and he used her apartment as a “stash house.”   Jefferson asked Nunn to join “the family,” but Nunn declined.

In 1999, Stines, Ford, Phelan, Jefferson, Antonio James, David Bowles and Aaron Bowles were indicted on one count of conspiracy to distribute and to possess with intent to distribute cocaine and cocaine base.   When Jefferson was subsequently arrested, he admitted that he had started selling crack in Ypsilanti in the summer of 1996. He said that Scarbrough was one of his principal suppliers and that he often bought one-eighth of a kilogram, but on two occasions he had purchased a half kilogram.

All seven defendants were tried and found guilty.   The three defendants who are not parties to this appeal cooperated with the government in return for sentence reductions.

As the trial occurred before the decision in Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000), the jury was not called upon to determine drug quantity or type.   The court sentenced Stines to a term of 400 months and Ford to 292 months, both prior to the decision in Apprendi.   The district court determined, post Apprendi, that the sentences imposed on Phelan and Jefferson could not exceed 240 months, the statutory maximum penalty for an unspecified amount of cocaine and cocaine base.

Discussion

The conspiracy alleged in the indictment did not specify the quantity of the cocaine and cocaine base.   The parties did not ask for special findings, so the jury's verdict established only that the conspirators were liable for an unspecified quantity of cocaine and cocaine base.

A. Apprendi Claim (Jefferson and Phelan)

 Jefferson and Phelan both argue that the district court's failure to submit the drug type and quantity determination to the jury violates their constitutional rights in light of Apprendi.   The Supreme Court held that “[o]ther than the fact of a prior conviction, any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury, and proved beyond a reasonable doubt.”  Apprendi, 530 U.S. at 490, 120 S.Ct. 2348 (emphasis added).   Because the district court limited the defendants' sentences to twenty years, and the statutory maximum penalty for an unspecified quantity of any form of cocaine is twenty years, see 21 U.S.C. § 841(b)(1)(C), the Apprendi ruling is not triggered and does not impact the sentence for either Jefferson or Phelan.   See, e.g., United States v. Stafford, 258 F.3d 465, 478-79 (6th Cir.2001) (“[A] violation of the principles set forth in Apprendi rises to the level of ‘plain error’ only where the defendant's sentence exceeds the maximum possible sentence that could be imposed by statute absent the offending ‘sentencing factor’ determined under the too-lenient ‘preponderance’ standard․ [E]ven if a determination of a particular drug quantity is improperly made under the ‘preponderance’ standard, there is no plain error in a sentence that lies within the applicable statutory sentencing range for the same offense involving an indeterminate amount of drugs.”).

 Defendants urge us to expand our application of Apprendi to disapprove of the imposition of a mandatory guideline minimum sentence unless a jury has made findings beyond a reasonable doubt as to the facts necessary to establish that guideline minimum.   To support this argument, they rely on United States v. Ramirez, 242 F.3d 348, 351 (6th Cir.2001), which held that Apprendi was applicable when a defendant's penalty was increased from “a nonmandatory minimum sentence to a mandatory minimum sentence, or from a lesser to a greater minimum sentence.”   Defendants claim that the logical extension of this decision would be to apply Apprendi to mandatory minimum sentences imposed under the sentencing guidelines even where the statutory maximum is not exceeded.

This contention is meritless in light of the recent decision in Harris v. United States, 536 U.S. 545, 122 S.Ct. 2406, 153 L.Ed.2d 524 (2002), and we question whether Ramirez is still good law after that decision.   According to the majority in Harris,

[w]hether chosen by the judge or the legislature, the facts guiding judicial discretion below the statutory maximum need not be alleged in the indictment, submitted to the jury, or proved beyond a reasonable doubt.   When a judge sentences the defendant to a mandatory minimum, no less than when the judge chooses a sentence within the range, the grand and petit juries already have found all the facts necessary to authorize the Government to impose the sentence.   The judge may impose the minimum, the maximum, or any other sentence within the range without seeking further authorization from those juries-and without contradicting Apprendi.

Id. at 2418 (emphasis added).   Although it is true that the quantity determined by the district court elevated the mandatory guideline minimum sentence, Harris tells us that Apprendi does not invalidate that increase.   See id;  see also United States v. Schulte, 264 F.3d 656, 660 (6th Cir.2001) (rejecting contention that Apprendi should apply to guideline enhancements even where the statutory maximum is not exceeded).

Contrary to defendants' arguments, their respective sentences do not trigger Apprendi because the drug type and quantity attributed to them does not affect the statutory maximum.   Accordingly, we reject their argument proposing an extension of Apprendi and affirm their sentences.

B. Apprendi Claim (Stines and Ford )

Ford argues that because the jury was not required to find either the type or quantity of drugs involved in the offense or that he used a weapon during and in furtherance of the conspiracy, under Apprendi, his sentence is a violation of his Fifth and Sixth Amendment rights and must be vacated and remanded for resentencing.   Stines makes the same argument, adding that the issue concerning his leadership role should have been submitted to the jury and proved beyond a reasonable doubt.

Ford received a sentence based on the district court's finding of drug quantity, approximately 25 kilograms of cocaine base, that implicated the enhancement penalties of 21 U.S.C. § 841(b)(1)(A), which prescribe a term of imprisonment up to life.   He also received a two-level enhancement for possession of a weapon in furtherance of the conspiracy.   His sentence of 292 months was well beyond the statutory maximum of twenty years for an unspecified quantity of any form of cocaine pursuant to § 841(b)(1)(C).  The district court found that Stines was accountable for 25 kilograms to 100 kilograms of cocaine base, implicating the enhancement penalties under § 841(b)(1)(A).   He also received a four-level enhancement for his leadership role in the conspiracy.   Stines's sentence, 400 months, was also well beyond the statutory maximum of twenty years.

 Ford argues that the indictment was defective because it failed to allege an element of the offense, i.e., drug quantity.   Although he did not move to dismiss the indictment on this ground, Ford claims that this is a jurisdictional objection that may be raised at any time.   In United States v. Cotton, 535 U.S. 625, 122 S.Ct. 1781, 1785, 152 L.Ed.2d 860 (2002), the Supreme Court explained that it had some time ago abandoned the view that indictment defects are jurisdictional.   Thus, Ford's claim that a defective indictment deprives a court of jurisdiction requiring dismissal must be rejected.

 Next, we must determine the appropriate standard of review to apply in evaluating defendants' Apprendi challenge.   Although Ford and Stines did not raise the issue of quantity at trial, it is clear that they made written objections to the drug quantity determination in response to their presentence reports.   In order to preserve an Apprendi challenge, the defendants need not “utter the words ‘due process' ” as long as it is well known that they dispute the district court's factual findings as to drug quantity.  United States v. Strayhorn, 250 F.3d at 462, 467 (6th Cir.2001) (“Contrary to the government's assertions that [the defendant's] constitutional challenge was waived, we believe the record makes plain that [the defendant] preserved his challenge by repeatedly objecting to the drug quantity determination at his plea hearing and at his sentencing hearing, as well as in a written objection to the calculation of his base offense level in his presentence report.”).

 At sentencing, however, Stines withdrew his objection and Ford stipulated to a base offense level of 38.   The subsequent withdrawal by Stines and stipulation by Ford could lead one to believe that defendants waived their claims challenging the drug quantity determination.  “Waiver is different from forfeiture.   Whereas forfeiture is the failure to make the timely assertion of a right, waiver is the intentional relinquishment or abandonment of a known right.”  United States v. Olano, 507 U.S. 725, 733, 113 S.Ct. 1770, 123 L.Ed.2d 508 (1993) (internal quotation marks and citation omitted).   The significance of this difference is that plain error does not apply to cases of waiver, but may be invoked in the court's discretion to review rights that were forfeited below.   See id. at 733-34, 113 S.Ct. 1770.   It would have been impossible for the defendants to have intentionally relinquished or abandoned their Apprendi based claims considering Apprendi was decided after they were sentenced.   Thus, we find that Stines's withdrawal and Ford's stipulation resulted in a forfeiture of their right to challenge the drug quantity determination on appeal, requiring us to review their Apprendi claims under a plain error analysis.   See United States v. Wade, 266 F.3d 574, 585 (6th Cir.2001) (“Generally, a failure to object at sentencing forfeits any challenge to the sentence on appeal.   We may overlook such a forfeiture to correct a plain error.”).

Under the plain error test of Fed.R.Crim.P. 52(b), there must be (1) error, (2) that is plain, and (3) that affects defendants' substantial rights.   See Cotton, 122 S.Ct. at 1785.  “If all three conditions are met, an appellate court may then exercise its discretion to notice a forfeited error, but only if ․ the error seriously affect[s] the fairness, integrity, or public reputation of judicial proceedings.”  Id. (internal quotation marks and citations omitted).

In Cotton, the Supreme Court applied the plain error analysis to facts almost identical to those in this case.   The indictment in Cotton charged a conspiracy to distribute and possess with intent to distribute a “detectable amount” of cocaine and cocaine base.  Id. at 1783.   The district court imposed sentences well beyond the twenty-year statutory maximum for drug offenses involving a detectable quantity of cocaine or cocaine base.   Consistent with the practice in federal courts at that time, at sentencing the district court made a finding of drug quantity that implicated the enhanced penalties of § 841(b)(1)(A).   See id.   Based on the subsequent ruling in Apprendi, the government conceded that the indictment's failure to allege a fact, drug quantity, that increased the statutory maximum sentence rendered the sentences erroneous.   The government also conceded that the error was plain.   See id. at 1785.   The only issue left for the Court to decide was whether the plain error affected the defendants' substantial rights.   The Court concluded it did not need to determine whether this element of the plain error inquiry was satisfied because even assuming defendants' substantial rights were affected, the error did not seriously affect the fairness, integrity, or public reputation of judicial proceedings.   See id.   It found the evidence that the conspiracy involved at least 50 grams of cocaine base “overwhelming” and “essentially uncontroverted” and, thus, there was no basis for concluding that the error would seriously affect the fairness of the judicial proceeding.   See id.   The Court explained:

In providing for graduated penalties in 21 U.S.C. §§ 841(b), Congress intended that defendants, like respondents, involved in large-scale drug operations receive more severe punishment than those committing drug offenses involving lesser quantities.   Indeed, the fairness and integrity of the criminal justice system depends on meting out to those inflicting the greatest harm on society the most severe punishments.   The real threat then to the “fairness, integrity, and public reputation of judicial proceedings” would be if respondents, despite the overwhelming and uncontroverted evidence that they were involved in a vast drug conspiracy, were to receive a sentence prescribed for those committing less substantial drug offenses because of an error that was never objected to at trial.

Id. at 1787.

 Following the opinion in Cotton, we find that the defendants' forfeiture of their Apprendi objections below precludes a finding of plain error by this court.   There was an overwhelming amount of evidence to justify the district court's drug quantity determinations.   Trial testimony established that Stines was buying two to five kilograms of crack a week from his source in Detroit as early as 1993.   There was also testimony that Ford was Stines's right hand man at least from 1996 on.   Each of the cooperating conspirators had personally purchased more than a kilogram of crack from Stines and other members of the gang.   Thus, the district court's determination as to drug quantities attributable to Stines and Ford, based on this overwhelming amount of evidence, after the decision in Cotton, does not constitute plain error.   Accordingly, we affirm Stines's and Ford's sentences.

AFFIRMED.

APPENDIX TO PUBLISHED OPINION

NOT RECOMMENDED FOR PUBLICATION

UNITED STATES of America, Plaintiff-Appellee,

v.

Joseph Rovess STINES (00-1222), Durand Chaunce Ford (00-1594);  Keith Maurice Phelan (01-1119);  Kenneth Andrew Jefferson (01-1179), Defendants-Appellants.

Nos. 00-1222, 00-1594, 01-1119, 01-1179.

United States Court of Appeals,

Sixth Circuit.

Filed Dec. 3, 2002.

On Appeal from the United States District Court for the Eastern District of Michigan.

Before SILER and MOORE, Circuit Judges, STAFFORD, District Judge.**

SILER, Circuit Judge.

In this unpublished appendix, we address the remaining issues raised by the defendants.   Because a number of the claims overlap, they will be discussed by subject.

I. CONVICTION ISSUES

A. Speedy Trial Act (Stines)

Under the Speedy Trial Act (the “Act”), an indictment must be filed within thirty days from the date on which a defendant is arrested, see 18 U.S.C. § 3161(b), and the trial must commence within seventy days of the filing date of the indictment.   See 18 U.S.C. § 3161(c)(1).   Stines contends that both the thirty-day complaint-to-indictment rule and the seventy-day indictment-to-trial rule were violated and, therefore, the superseding indictment should be dismissed.   The government argues that Stines has waived his right to claim a violation of the Act by failing to file a motion to dismiss in the district court on either ground he raises before this court.

Section 3162(a)(2) provides that “[f]ailure of the defendant to move for dismissal [based on a violation of §§ 3161(b) or (c) ] prior to trial ․ shall constitute a waiver of the right to dismissal.” 18 U.S.C. § 3162(a)(2).   Stines did not file a motion to dismiss the superseding indictment based on a violation of the Act. Although he did make a demand for a speedy trial in the course of seeking review of his order of detention, this cannot be deemed a motion to dismiss for violation of the Act. See United States v. Register, 182 F.3d 820, 828 (11th Cir.1999) (refusing to grant defendant relief for Act violation, where, although defendant on more than one occasion demanded a jury trial and moved for release from prison based on excessive pretrial detention, he never moved the court to dismiss the indictment);  United States v. Lugo, 170 F.3d 996, 1001 (10th Cir.1999) (holding that defendant waived right to dismissal under Act where he never filed formal motion, though issue was discussed and the district court set a briefing schedule in the event defendant decided to file such a motion).   Stines therefore has waived any right he may have had to the statutory remedy provided under the Act.

B. Cross-Examination of Lieutenant Donald Bailey (Stines)

Relying on United States v. Garrett, 542 F.2d 23 (6th Cir.1976), Stines argues that the district court should have allowed cross-examination of the government's police witness, Donald Bailey, as to his pattern of using false or unverified information from informants in applications for search warrants and the investigation by Bailey's police department in Traverse City into his conduct.   Given that Little had denied giving Bailey information as Bailey had testified he did, Stines asserts that his similar conduct in Traverse City was germane to the issue of Bailey's credibility.

The extent to which a witness may be cross-examined is a matter left to the sound discretion of the trial court.   See id. at 25.   A trial court, however, may exceed its discretion when the defense is not allowed to “plac[e] before the jury facts from which bias, prejudice or lack of credibility of a prosecution witness might be inferred.”   See id.  “This well-settled principle protects the defendant's right on cross-examination to develop the facts which might undermine a government witness's credibility.”  Dorsey v. Parke, 872 F.2d 163, 167 (6th Cir.1989).

Stines, however, was not barred from asking Bailey all questions related to his use of false information in search warrants while working in Traverse City. “Where it is merely the extent of cross-examination that is limited, the trial judge retains a much wider latitude of discretion, though of course that discretion may be abused.”  Dorsey, 872 F.2d at 167. (citations omitted).   “This Court has recognized that the test in such circumstances is whether the jury had enough information, despite the limits placed on the otherwise permitted cross-examination, to assess the defense theory.”  Id. (citation omitted).   The court limited defense counsel's questioning of Bailey concerning the reasoning behind the dismissal of his other cases in Traverse City, concluding that the prosecutor and judge may have dismissed the cases for reasons other than the alleged misconduct of Bailey.   Bailey was questioned regarding his conduct in those cases and he even explained in some detail the methods he employed in taking those confessions.   Further, Bailey admitted that he had been criticized by a prosecutor.   Accordingly, we conclude that the district court did not exceed the bounds of its discretion in limiting the cross-examination of Bailey, as defense counsel was allowed to “plac[e] before the jury facts from which bias, prejudice or lack of credibility of [Bailey] might be inferred.”  Garrett, 542 F.2d at 25.

C. Stines's Statement (Stines)

Stines asserts that the district court erred by allowing into evidence testimony that he told Phelan and Jefferson that he had hired people to kill the government's witnesses, Palmer and Little.   Although the district court gave a cautionary instruction that such evidence was only allowed to show consciousness of guilt, Stines contends that the evidence was more prejudicial than probative and completely immaterial to the charges against him and, therefore, should not have been allowed.

Palmer was permitted to testify that he had overheard a conversation between three of the defendants, in which Stines told Phelan and Jefferson that he had put a hit on Palmer and Little.   The court instructed the jury that the testimony was to be considered only against defendant Stines and only as a circumstance tending to show consciousness of guilt.

The Sixth Circuit has approved the admission of evidence that a defendant threatened the life of a witness to show consciousness of guilt.   See United States v. Mendez-Ortiz, 810 F.2d 76, 79 (6th Cir.1986).   Thus, the admission of Palmer's testimony is clearly relevant to the issue of Stines's guilt.   Although admissible for this purpose, Stines argues that it is inadmissable according to Fed.R.Evid. 403, which provides that “evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice.”   We review a district court's Rule 403 determination for abuse of discretion.   See United States v. Sassanelli, 118 F.3d 495, 498 (6th Cir.1997).  “ ‘Unfair prejudice,’ as used in Rule 403, does not mean the damage to the defendant's case that results from the legitimate probative force of the evidence;  rather, it refers to the evidence which tends to suggest decision on an improper basis.”  Mendez-Ortiz, 810 F.2d at 79 (citations omitted).   Palmer's testimony was highly probative of Stines's guilt and was not inflammatory and presented little danger of unfair prejudice.   Thus, the district court did not abuse its discretion by admitting this evidence with a limiting instruction as to its proper use.

D. Recorded Conversation between Stines and Informant (Stines)

At trial, the government introduced a tape recording of a telephone conversation between Scarbrough, a drug dealer cooperating with the police, and Stines.   Scarbrough died prior to trial.   The court allowed the tape to be admitted concluding that there was no Confrontation Clause issue.   It explained that Scarbrough's end of the conversation was admitted only to provide context for Stines's statements and Stines's words were admissible against him under Fed.R.Evid. 801(d)(2)(A).   Prior to listening to the tape, the jury was advised as to the appropriate use of the conversation on the tape.   We generally review evidentiary rulings under an abuse of discretion standard.   See Fisher v. Memphis, 234 F.3d 312, 316 (6th Cir.2000).   Rulings as to hearsay evidence are reviewed de novo.   See id.

Stines argues that admission of this tape violated the Confrontation Clause as he was not permitted to cross-examine Scarbrough.   Further, he contends that the government could not take advantage of the coconspirator exception to the hearsay rule under Fed.R.Evid. 801(d)(2)(E).

The district court did not rule that the tape recorded conversation was non-hearsay because it was a statement of a coconspirator.   First, the court correctly admitted Stines's half of the conversation as non-hearsay admissions of a party.   See United States v. McDonald, 173 F.3d 430, No. 97-5339/5556/5338/5187/5196, 1999 WL 149658, at *9 (6th Cir. March 1,1999) (collecting cases in the 1st, 2d, 5th, 7th, 9th and D.C. Circuits).   Second, Scarbrough's side of the conversation was admitted as non-hearsay evidence, offered to make Stines's statements intelligible as an admission and to place them in context.   Because Scarbrough's statements were not offered for their truth, they do not violate the hearsay rule.   See id.   When an out of court statement is not offered to prove the truth of the matter asserted, the Confrontation Clause is not implicated.   See id. (citing Tennessee v. Street, 471 U.S. 409, 413, 105 S.Ct. 2078, 85 L.Ed.2d 425 (1985);  United States v. Martin, 897 F.2d 1368, 1372 (6th Cir.1990)).

Finally, Stines asserts that the tape was inadmissible because the government had not properly authenticated the tape as required by Fed.R.Evid. 901(a).   He argues that there is no one to offer evidence that the tape was not altered, nor is Scarbrough available to testify that he agreed to have the recording made.   Agent Brunson testified that he set up and taped the conversation between Scarbrough and Stines in an ATF office in Detroit.   Upon completion of the conversation, Brunson placed the cassette in ATF custody.   Stines fails to point to anything in the record that would create a question as to the authenticity of this tape recording.   Thus, the district court appropriately found there was no issue concerning the authentication of the tape.   Any claim that the recording amounted to an illegal wiretap is waived because it was not raised in a motion to suppress the evidence.   See 18 U.S.C. § 2518(10)(a);  United States v. Kincaide, 145 F.3d 771, 778 (6th Cir.1998).   Accordingly, we conclude that the district court properly admitted into evidence the taped conversation between Stines and Scarbrough.

E. Perjured Testimony (Stines and Ford)

Stines and Ford claim that Julius Quinzy lied when he testified that he had seen Stines providing drugs to Tyrone Williams.   Furthermore, the defendants assert that the prosecutors told Quinzy what to say, knowing that it was false and allowed Quinzy to exchange information with other witnesses.   To support these allegations, they direct our attention to their motions for new trial filed several months after they filed notices of appeal from the judgment of conviction.   The motions contain an affidavit from Julius Quinzy recounting the alleged misconduct of the prosecutors.

The district court did not rule on the merits of these claims because it concluded it lacked jurisdiction to entertain the motions absent an order of remand from this court.   As explained in United States v. Warner, 10 F.3d 1236, 1240 (6th Cir.1993) (citation omitted):

Under Rule 33, although the district court may not grant a new trial while an appeal is pending without a remand, the trial court may deny such a motion.   Such a denial is an appealable order, and an immediate appeal taken from the denial will be consolidated with a pending appeal taken from the judgment of conviction.   Nevertheless, by being a distinct appealable order from which a separate appeal must be taken, an appeal from a Rule 33 motion denial is subject to the requirement that the appeal be taken within ten days from the docketing of the district court's order.   Absent an appeal within this time, or an extension from the district court for filing the notice of appeal, this court, being without authority to extend the time for filing a notice of appeal, will lack the jurisdiction to hear the appeal.

Because the defendants did not appeal the denial of their motions for new trial, we have no jurisdiction to review this claim first raised in those motions.   See id.

F. Plea Agreements with Cooperating Witnesses (Stines and Ford)

Next, Stines and Ford claim that the government engaged in misconduct by withholding the true nature of its plea agreement with Reese Palmer.   Palmer testified that he pled guilty in 1997 to conspiring to distribute crack cocaine in accordance with a plea agreement that limited his sentence to nine years, with the possibility that it could be reduced to five years on the prosecutor's recommendation.   Defendants argue that Palmer's release from custody shortly after their convictions illustrates that Palmer's testimony was untrue.   Thus, they assert that the government withheld the true terms of its agreement with Palmer and other cooperating witnesses and knowingly permitted the witnesses to testify falsely about their agreements.

These allegations were first raised in the defendants' motions for new trial.   As discussed in the previous section, the defendants did not appeal the denial of their motions for a new trial.   Therefore, we lack jurisdiction to review these arguments on appeal.   See Warner, 10 F.3d at 1240.

G. Threatening a Witness (Stines)

Stines claims that the government engaged in misconduct by threatening Jason Sizemore with a “27 year sentence” if he provided exculpatory evidence should he be called to testify.   To support this allegation, Stines directs our attention to his motion for new trial, which contains an affidavit from Jason Sizemore recounting the alleged misconduct of the prosecutor.   Because Stines did not appeal the denial of his motion for new trial in which he raised this issue, we have no jurisdiction to review this argument on appeal.   See Warner, 10 F.3d at 1240.

H. Discovery Orders (Stines and Ford)

Stines and Ford assert that throughout their trial the government failed to provide various statements and reports that witnesses had made.   As a result of the government's failure to provide this Brady material during discovery, they contend that their attorneys were precluded from conducting any meaningful preparation, resulting in an unfair trial.

Stines fails to identify specifically those instances when the examination of a witness or preparation of his defense was actually hampered by an alleged failure to provide timely discovery.   His bald accusations of misconduct followed by a list of transcript pages, without any discussion of the nature of the discovery violations, is insufficient to bring the claim before this court.   See United States v. Layne, 192 F.3d 556, 566-67 (6th Cir.1999) ( “[I]ssues adverted to in a perfunctory manner, unaccompanied by some effort at developed argumentation, are deemed waived.”) (citation omitted).   Ford provides more discussion concerning the nature of the alleged discovery violations but he too fails to specifically discuss how his case was hampered.   Without more as to the actual harm caused, we cannot be expected to review such a wide sweeping argument.   Accordingly, we conclude that Stines and Ford have waived their right to appellate review of their challenge to the fairness of their trial based on the government's alleged disregard for the court's discovery orders.

I. Expert Testimony (Stines)

Stines argues that the district court erred in allowing Detective Sergeant Roy Mays to give expert testimony on the practices of drug dealers.   Sergeant Mays testified that he observed what looked like a drug sale by Stines in a neighborhood known for drug dealing.   When Stines saw Mays and his partner approaching, he threw a plastic bag on the ground, which was later recovered and found to contain twenty-three rocks of crack cocaine.   The prosecutor then asked, “Based upon your twenty years of experience in over 300 or 400 narcotics related arrests working undercover in narcotics transactions, specifically crack cocaine, twenty-three rocks of crack cocaine, sir, is that consistent with personal use or distribution?”   Mays responded, “Distribution.”

Because Stines did not raise a contemporaneous objection to this expert testimony, we review the admission of such testimony for plain error.   See Fed.R.Crim.P. 52(b) (“Plain errors or defects affecting substantial rights may be noticed although they were not brought to the attention of the court.”);  United States v. Flowal, 163 F.3d 956, 961 (6th Cir.1998).   It is well settled that law enforcement officers may give expert opinion as to how drugs are distributed, if properly qualified under Fed.R.Evid. 702. See id. at 961-62.   We reject Stines's argument and find that the admission of Mays's expert testimony was not plainly erroneous.

J. Out-of-Court Conversations Among Witnesses (Ford and Stines)

Ford and Stines argue that the district court improperly excluded testimony that the government's witnesses, Palmer, Alexander and Warren, conspired to give false and misleading testimony and that witness Palmer received “tickets” in prison for forgery.  Fed.R.Evid. 608(b) provides that “[s]pecific instances of the conduct of a witness, for the purpose of attacking or supporting the witness' credibility ․ may not be proved by extrinsic evidence.”   We review evidentiary decisions made by the district court for abuse of discretion.   See United States v. Markarian, 967 F.2d 1098, 1103 (6th Cir.1992).   The offer of proof was only that the witnesses described the progress of the trial, not that they discussed falsifying their testimony.   Whether the government witnesses had conversations about the trial was a collateral matter.   The district court did not abuse its discretion by determining that proof of such conversations amounted to extrinsic evidence not permitted under Rule 608(b).

Defense counsel also argued that Palmer had lied about his tickets in prison and requested to offer proof on that subject.   Similarly, whether Palmer fairly described his prison disciplinary record was a collateral matter, and introduction of extrinsic evidence on this matter was properly excluded by the district court under Rule 608(b).  See United States v. Innamorati, 996 F.2d 456, 479 (1st Cir.1993) (“A court may, indeed normally does, preclude a party from proving with extrinsic evidence that a witness lied in court on a collateral matter.”).

K. Ford's Tattoo and “Gangsta Stone Prayer” (Ford)

Ford claims that the district court erred by allowing the government to introduce evidence that he had a tattoo with the word “Ranger” and to read into the record a document entitled “Gangsta Stone Prayer.”

Gang affiliation evidence in this case was particularly relevant to prove the conspiracy and the relationship among the defendants.   Such evidence should be considered direct evidence admitted under Rules 401 and 403, not 404(b).  See United States v. Brown, 200 F.3d 700, 708 (10th Cir.1999) (addressing the same argument and concluding that gang affiliation is relevant as to the issue of identity, joint venture, existence of a conspiracy, and illumination of the relationship between the defendants);  United States v. Jobson, 102 F.3d 214, 219 n. 4 (6th Cir.1996) (recognizing that evidence of gang membership might be admitted as direct evidence subject to Rules 401 and 403).

Ford stipulated to the admission of a photograph of his tattoo and failed to object to the limiting instruction based on Rule 404(b).  As for the “Gangsta Stone Prayer,” he did not argue that it should be considered under Rule 404(b) or even that it was more prejudicial than probative.   Where a defendant fails to make a timely objection, stating the specific grounds for his objection, our review is limited to plain error.   See United States v. Levy, 904 F.2d 1026, 1030 (6th Cir.1990).

Here, the gang evidence that the district court admitted helped demonstrate the existence of the conspiracy and connections between members of the conspiracy.   The tattoo linked Ford to the gang.   There was nothing inflammatory in the prayers that would merit a finding that their admittance was unfairly prejudicial to Ford. Moreover, the district court wisely provided an instruction to the jury warning that membership in the gang was not enough to prove participation in the conspiracy.   This evidence was certainly relevant to establish the existence of a conspiracy and its admittance coupled with the court's instruction did not unfairly prejudice Ford. Thus, we find that it was not plain error for the district court to admit evidence of Ford's gang affiliation.1

L. Uncorroborated Statement (Jefferson)

Jefferson claims, relying on United States v. Marshall 863 F.2d 1285, 1287 (6th Cir.1988), that where there is no clear proof that the criminal acts described in his post-arrest statement took place, independent corroborating evidence is required to sustain a conviction.   He claims for the first time on appeal that the court erred by not giving a specific jury instruction on his uncorroborated statement.   Jefferson did not request such an instruction at trial.   Accordingly, we are precluded from considering this issue absent plain error.   See Fed.R.Crim.P. 52(b) (“Plain errors or defects affecting substantial rights may be noticed although they were not brought to the attention of the court.”);  United States v. Jones, 108 F.3d 668, 670 (6th Cir.1997).

After the indictment was returned in this case, Jefferson was arrested.   He told agents that he had returned to the Ypsilanti area in the spring or summer 1996 and began selling crack cocaine.   He named Scarbrough as one of his sources and indicated that on two occasions he had bought cocaine from Scarbrough's principal source, though he did not name that person.   He indicated that Scarbrough's source had several runners who would sometimes deliver the cocaine if Scarbrough was not available.

Jefferson argues that no other evidence was offered to establish that he had ever received powder or crack cocaine from Scarbrough or any coconspirator.   Thus, he argues that the court should have instructed the jury that he could not be convicted on the basis of his uncorroborated confession alone.

However, “proof that the criminal act took place-the so-called ‘corpus delicti’-will satisfy the corroboration requirement.”  Marshall, 863 F.2d at 1285.   Independent corroborating evidence is only required in cases where there is no clear proof of the corpus delicti.   See id.

Jefferson was charged with conspiracy to distribute and to possess with intent to distribute cocaine and cocaine base.   Nunn testified that he bought crack from Stines and Jefferson and that Jefferson invited him to join Stines's family.   Additionally, Sergeant Dwayne Gill testified that Scarbrough was driving a car registered to Jefferson when he sold the undercover officer three ounces of crack.   As there is proof that criminal acts took place, the corroboration requirement is satisfied.   Accordingly, the failure to give a special instruction about uncorroborated confessions in this case was not plain error.   Because there was proof of Jefferson's connection with the drug conspiracy, there was no danger that the jury would convict Jefferson of a crime that did not occur based solely on his statements at the time of his arrest.

M. Sufficiency of the Evidence (Jefferson)

The standard of review for challenges to sufficiency of the evidence is “whether, after reviewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.”  United States v. Warwick, 167 F.3d 965, 970-71 (quoting Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979)).  “A defendant claiming insufficiency of the evidence bears a very heavy burden․ Circumstantial evidence alone is sufficient to sustain a conviction and such evidence need not remove every reasonable hypothesis except that of guilt.”  Id. at 971 (citation omitted).

Jefferson asserts that the government did not present sufficient evidence to support a finding that he was a member of the conspiracy described as Stone Life. As previously discussed, Nunn testified that he had bought crack cocaine from Jefferson.   He also testified that Jefferson asked him if he “want[ed] to join the family.”   Nunn explained that Jefferson got the crack from Anita's house, where he was staying at the time.   Anita Hargrove was Stines's girlfriend and Stines frequently stored drugs at her home.

Samuel Mullice testified that on one occasion in 1996 he met Jefferson at their parole office and Jefferson gave him his business card, inviting him to call if he wanted to “do something.”   Mullice understood this to mean selling drugs, though that was never stated.   Jefferson argues that Mullice's testimony must be disregarded because Mullice said that he met Jefferson in March or April 1996, when he was still in prison.   Mullice testified that he made contact with Jefferson sometime in 1996 and he does not specifically state a month.   Viewing the evidence in the light most favorable to the government, we accept Mullice's testimony when reviewing the sufficiency of the evidence against Jefferson.   See United States v. Maliszewski, 161 F.3d 992, 1006 (6th Cir.1998) (“[I]n reviewing a defendant's claim of insufficiency, we draw all available inferences and resolve all issue of credibility in favor of the jury's verdict.”).

Jefferson claims that the “fatal flaw” in the government's proof is that the record is devoid of any evidence that he was a member of the conspiracy.   He, however, fails to recognize that his own admissions connect him to Scarbrough, who the court explicitly found was an unindicted coconspirator.   Thus, any rational trier of fact could have found that there was ample evidence proving Jefferson's connection to the conspiracy.

N. Sufficiency of the Evidence (Phelan)

Phelan argues that there was insufficient evidence to convict him. Specifically, he complains that the four coconspirators, Eva Taylor, Tali Alexander, Palmer and Warren, all lacked credibility.   In undertaking an analysis of the sufficiency of the evidence, we “neither independently weigh [ ] the evidence, nor judge[ ] the credibility of the witnesses who testified at trial.”  United States v. Talley, 164 F.3d 989, 996 (6th Cir.1999) (citation omitted).   Accordingly, Phelan's attack on the credibility of these witnesses gets him nowhere.

There was ample evidence showing that Phelan was connected to the conspiracy.   Palmer testified that Phelan was one of the original members of the Stone Life gang.   When Palmer was selling crack for Stines, Stines and Phelan would drive around checking on him and their other distributors.   Both Palmer and Warren described Phelan as the gang's enforcer or muscle, the person Stines said he would send if someone owed him money or if one of his people needed protection.

Aside from the testimony of the four witnesses whose credibility Phelan questions on appeal, there was other evidence of Phelan's involvement in the conspiracy.   Hans Thomas and Walter Phelps testified that Phelan was a member of Stone Life. When police searched the apartment at Spinnacker Way, they found Phelan, among others, in the apartment with $680 in marked bills from a controlled buy and a bowl containing cocaine residue.   Also, Phelan accompanied Stines when he sold crack to Scarbrough while agents watched.   In light of the evidence in the record, any rational trier of fact could have found that there was ample evidence proving Phelan's guilt beyond a reasonable doubt.

O. Motions for a Mistrial (Phelan)

The government agreed not to introduce evidence of Phelan's marijuana dealings.   Phelan claims that the government violated this agreement by allowing its witness, Palmer, to repeatedly testify to Phelan's involvement with marijuana.   He argues that the district court erred by denying his trial counsel's repeated motions for a mistrial based on Palmer's references to Phelan's involvement with marijuana.

“To warrant reversal, a district court's decision not to grant a mistrial must constitute an abuse of discretion.”  United States v. Roper, 135 F.3d 430, 432 (6th Cir.1998).   We will disturb the initial forum's judgment, “[o]nly when the court is firmly convinced that a mistake has been made.”  Id. (internal quotation marks and citation omitted).

Palmer testified that at a meeting with Stines, Stines described Phelan's role in the gang as a “roamer.”   Palmer explained that Phelan “was selling weed and cocaine.”   No contemporaneous objection was made but later that afternoon Phelan's attorney moved for a mistrial based on the government's agreement not to introduce Phelan's involvement in marijuana distribution.   The court concluded that a “minor mention” of marijuana without any follow up did not justify a mistrial.   The next day, in response to a question from the prosecutor about whether he had told anyone about a collection of leather coats he had, Palmer responded, “Yes, Keith Phelan,” adding that Phelan had seen them when he came to his house to deliver a pound of marijuana.   The court struck the answer and warned the prosecutor, “You have got to ask a short question to get a short answer.   This guy is all over the place.”   The court denied Phelan's renewed motion for a mistrial, but immediately gave a cautionary instruction telling the jury that marijuana was not an issue in the trial.   On redirect that following day, the prosecutor asked Palmer to explain what a “roamer” meant.   Palmer responded, “That meant that Keith Phelan didn't have no specific section of the city;  that he just roamed from park to park whenever somebody needed something, whether it be marijuana or cocaine.”   The trial judge immediately excused the jurors.   After some discussion, the judge ruled that there was no basis for a mistrial, and when the witness returned, the judge admonished him not to mention marijuana.   The witness did not mention marijuana again.

As the district court correctly ruled, this testimony does not warrant a mistrial.   The record indicates that there was no deliberate effort by the government to inflame the jury.   Moreover, even if the evidence was erroneously admitted, the district court on at least one occasion struck the testimony and instructed the jury to disregard the omitted statement.   Ordinarily, the striking of the evidence with instructions to the jury to disregard it will cure the error.   See United States v. Ursery, 109 F.3d 1129, 1133 (6th Cir.1997).   Furthermore, “only if this evidence were so prejudicial that the jury could not be trusted to disregard it, should a new trial be granted.”   Id. at 1133-34.   The testimony about which Phelan complains did not mislead the jury and the jury was clearly instructed that marijuana distribution was not an issue.   The comments were isolated and only a small portion of the government's case.   In light of these circumstances, the district court did not abuse its discretion by denying Phelan's motions for a mistrial.

II. SENTENCING ISSUES

P. Enhancement for Leadership Role (Stines)

Stines appeals the district court's application of a four-level enhancement to his offense level during sentencing, based upon his role as a leader or organizer.   Section 3B1.1(a) of the Sentencing Guidelines provides that “[i]f the defendant was an organizer or leader of a criminal activity that involved five or more participants or was otherwise extensive, increase [the offense level] by 4 levels.”   Stines argues that there was no “reliable evidence” to support a finding that a four-level leadership enhancement was warranted.   This is a question of fact.  “In reviewing the application of an aggravating role adjustment, the district court's findings of fact are reviewed for clear error.”  United States v. Khalil, 279 F.3d 358, 370 (6th Cir.2002).

The district court did not commit clear error in finding that Stines played a leadership role in the conspiracy.   Members of Stone life testified extensively about Stines's involvement in creating the group and the fact that he was its leader.   Testimony at trial showed that Stines considered himself a “drug kingpin” and that others looked to him when they wanted to buy drugs.   The government also presented evidence that Stines divided up and assigned territory to other members.   Based on the substantial amount of evidence concerning Stines's leadership role in criminal activity involving more than five participants, the district court did not commit clear error in finding that Stines's involvement in the conspiracy warranted a four-level enhancement.

Q. Enhancement for Possession of a Weapon (Ford)

Ford argues that he was wrongly assessed points for possessing a firearm.   A specific offense characteristic under the guideline for conspiracy to unlawfully traffic in controlled substances is the possession of a dangerous weapon, which calls for a two-level enhancement.   See USSG § 2D1.1(b)(1).   This enhancement “should be applied if the weapon was present, unless it is clearly improbable that the weapon was connected with the offense.”  USSG § 2D1.1 comment. (n.3).  “We review for clear error the district court's finding that the defendant possessed a firearm during a drug crime within the meaning of U.S.S.G. § 2D1.1(b).”  Maliszewski, 161 F.3d at 1017.

At trial, Warren testified that Ford often carried a gun while delivering crack.   Police seized a large handgun from Ford's bedroom in his grandmother's house.   This seizure corroborated Palmer's testimony that Stines told him he was moving everything out of one of his “stash houses,” Ford's grandmother's house, but leaving a gun for Ford. The district court credited this testimony and found “more than clear and convincing evidence that ․ Mr. Ford carried a gun when distributing drugs.”

Ford contends that there is no testimony linking the gun found at his grandmother's to the weapon he allegedly possessed while delivering drugs.   The testimony from Palmer that Stines left the gun for Ford supports the district court's finding that the gun was used when distributing drugs.   It was not clear error for the district court to conclude that the weapon was possessed by Ford in relation to the offenses for which Ford was convicted.

R. Responsibility for Five Kilograms of Crack (Phelan)

Phelan argues that the district court erred in finding he was responsible for more than five kilograms of crack based on the incredible testimony of Alexander, Palmer, Warren and James.   We review for clear error a sentencing court's calculation of the quantity of drugs for which a defendant is accountable.   See United States v. Owusu, 199 F.3d 329, 338 (6th Cir.2000).

The district court was very cautious in determining the amount of crack attributable to Phelan, excluding any amount that was vague, that might have been counted twice, or that was not clearly connected to him.   It found that approximately 212.57 grams of crack were attributable to Phelan based on the trial testimony and added, conservatively, at least another 5,500 grams based on the testimony of James at Phelan's sentencing hearing.   The district court's finding that Phelan was responsible for over five kilograms of crack was not clearly erroneous.

S. Issue Preclusion (Jefferson)

Jefferson asserts that the drug quantity determinations made at the sentencing of Stines and Ford did not include any amounts distributed to him.   Thus, he argues that the doctrine of collateral estoppel prevented the government from relitigating, and the district court from redetermining, the quantity of crack attributable to him at his sentencing.

The unpublished opinion from this circuit in McCoy v. United States, 145 F.3d 1332, Nos. 96-2374/2376, 1998 WL 252762 (6th Cir. May 11, 1998), is directly on point.   In McCoy, the court held that “to apply the doctrine of non-mutual collateral estoppel to criminal cases makes little sense, and this court rejects the view ․ that a court is bound in such circumstances by collateral estoppel when mutuality does not exist, even where a co-defendant is similarly situated.”  Id. at *2. The proper focus in a case like this, according to McCoy, “should remain on whether the district court had a sufficient factual basis for making the drug quantity determination that it did.”  Id.

Several other circuits have also expressly rejected the extension of the doctrine of non-mutual collateral estoppel to criminal cases.   See United States v. Montes, 976 F.2d 235, 239 (5th Cir.1992) (“doctrine of non-mutual collateral estoppel has no application in criminal cases”) (citing Standefer v. United States, 447 U.S. 10, 100 S.Ct. 1999, 64 L.Ed.2d 689 (1980));  United States v. Valdez-Soto, 31 F.3d 1467, 1476 (9th Cir.1994) (“Although unilateral collateral estoppel exists in the civil arena, we do not apply it in criminal cases.”) (citing Standefer ).

The doctrine of collateral estoppel did not bar the district court from reevaluating the amount of crack attributable to Jefferson.   The district court found Jefferson was involved with more than “1.5 kilograms of crack” based primarily on the testimony from Aaron Bowles that he sold Jefferson 1/8 kilogram of crack once a week for four to six months.   Based on this evidence, the district court had a sufficient factual basis for making the drug quantity determination that it did.

T. Error Based on United States v. Dale (Stines, Ford and Jefferson)

Stines, Ford, and Jefferson claim that the district court erred under United States v. Dale, 178 F.3d 429 (6th Cir.1999), by sentencing them for distribution of crack cocaine when the conspiracy charge included both powder and crack cocaine.

Dale held that where a jury returned a general verdict on a conspiracy to distribute both marijuana and crack cocaine, the defendant must be sentenced as if he distributed only the drug carrying the lower penalty.   See id. at 432.   The holding in Dale, however, has been clarified in United States v. Neuhausser, 241 F.3d 460 (6th Cir.2001).   In Neuhausser, the court held that the substance with the higher statutory penalty controlled the sentence where the indictment charged the defendants with conspiring to distribute both marijuana and cocaine, the jury instructions used the same language and there was sufficient evidence to support a finding that the conspiracy involved both marijuana and cocaine.  Id. at 469-470.  “Dale governs in cases where a jury's general verdict is ambiguous, such that it cannot be determined whether the jurors unanimously agreed as to one or another of the multiple drugs allegedly involved in the conspiracy.”  Id. at 470.

As in Neuhausser, the jury in this case was instructed that it must find that defendants conspired to distribute cocaine and cocaine base.   Moreover, the indictment charged the defendants with conspiracy to possess with intent to distribute cocaine and cocaine base.   Accordingly, Dale does not apply because the jury's verdict was not ambiguous and, therefore, the district court did not err by sentencing defendants for distribution of crack cocaine.   Furthermore, the failure to ensure jury unanimity as to substance would not create the same problem in this case, as in Dale, because the statutory maximum penalty for an unspecified amount of powder cocaine is the same as that for cocaine base.

U. Constitutionality of §§ 841 and 846 (Ford and Stines)

Ford argues, joined by Stines, that 21 U.S.C. §§ 841 and 846 are unconstitutional in light of Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000).   Our court has considered just such a post-Apprendi challenge to the constitutionality of § 841 and has concluded that the statute is not unconstitutional in light of the Supreme Court's decision.   See United States v. Martinez, 253 F.3d 251, 256 n. 6 (6th Cir.2001) (explaining that such an argument “rests on an untenably broad and erroneous reading of Apprendi ”).   Following this binding precedent, we reject defendants' argument that §§ 841 and 846 are unconstitutional.

AFFIRMED.

FOOTNOTES

FOOTNOTE.  FN** The Honorable William H. Stafford, Jr., United States District Judge for the Northern District of Florida, sitting by designation.

FN1. Ford also claims that the introduction of this evidence violated the court's order concerning pre-trial discovery.   He argues that the government did not turn over evidence of the prayers nor did it timely file its request to disclose the tattoos.   The issue concerning the request to photograph the defendants' tattoos was briefly addressed by the district court and it ruled that timeliness was not an issue.   As to the prayers, Ford fails to cite us to any discussion concerning the timeliness of the government's introduction of this evidence..  FN1. Ford also claims that the introduction of this evidence violated the court's order concerning pre-trial discovery.   He argues that the government did not turn over evidence of the prayers nor did it timely file its request to disclose the tattoos.   The issue concerning the request to photograph the defendants' tattoos was briefly addressed by the district court and it ruled that timeliness was not an issue.   As to the prayers, Ford fails to cite us to any discussion concerning the timeliness of the government's introduction of this evidence.

SILER, Circuit Judge.