USA v. Ronald Kelsor
OPINION and JUDGMENT filed: Defendant's convictions and sentences are AFFIRMED, decision for publication pursuant to local rule 206. Ralph B. Guy, Jr. (AUTHORING), Raymond M. Kethledge, Helene N. White, Circuit Judges.
RECOMMENDED FOR FULL-TEXT PUBLICATION
Pursuant to Sixth Circuit Rule 206
File Name: 11a0317p.06
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appellee, No. 10-3034
Appeal from the United States District Court
for the Southern District of Ohio at Columbus.
No. 08-00081-005—James L. Graham, District Judge.
Argued: November 16, 2011
Decided and Filed: December 20, 2011
Before: GUY, KETHLEDGE, and WHITE, Circuit Judges.
ARGUED: Kevin Michael Schad, FEDERAL PUBLIC DEFENDER’S OFFICE,
Cincinnati, Ohio, for Appellant. Mary B. Young, ASSISTANT UNITED STATES
ATTORNEY, Columbus, Ohio, for Appellee. ON BRIEF: Kevin Michael Schad,
FEDERAL PUBLIC DEFENDER’S OFFICE, Cincinnati, Ohio, Frederick D. Benton,
Jr., Columbus, Ohio, for Appellant. Mary B. Young, ASSISTANT UNITED STATES
ATTORNEY, Columbus, Ohio, for Appellee.
RALPH B. GUY, JR., Circuit Judge.
Defendant Ronald Kelsor appeals
following his conviction on all twenty-two counts arising out of his involvement in the
distribution of heroin over a four-year period in and around Columbus, Ohio. The
district court sentenced defendant to a mandatory minimum term of life imprisonment
United States v. Kelsor
for conspiracy to distribute and to possess with intent to distribute more than 1,000
grams of heroin, and imposed concurrent sentences for all but two of the other offenses.
Consecutive sentences were imposed on each of two convictions for possession of a
firearm in furtherance of a drug trafficking crime in violation of 18 U.S.C. § 924(c).
Defendant challenges (1) the sufficiency of the evidence to support the § 924(c)
convictions, (2) the admission of certain coconspirator statements under Fed. R. Evid.
801(d)(2)(E), (3) the allowance of testimony regarding recorded calls to which the
witness was not a party, and (4) the failure to give a requested jury instruction regarding
multiple conspiracies. With respect to his sentences, defendant argues (1) that the notice
of enhanced penalties was defective, (2) that it was error to impose consecutive
sentences for the § 924(c) convictions, and (3) that the sentence of life imprisonment
violated double jeopardy and constituted cruel and unusual punishment. After careful
review of the record, we affirm.
Defendant Ronald Kelsor came to the attention of law enforcement in 2007,
when he was observed selling heroin to several individuals during a drug investigation
in Union County, Ohio.
Further investigation—including controlled purchases,
surveillance, and use of a “pen register” for a cell phone number belonging to
defendant—led to court-authorized wiretaps on defendant’s phone and later for the
phones of two others. Defendant’s calls were monitored between February and April
2008, and surveillance during that time corroborated that the phone was being used to
arrange the purchase and sale of heroin.
Cooperating witnesses provided testimony at trial concerning the existence,
scope, and operation of the conspiracy to distribute or to possess with intent to distribute
more than 1,000 grams of heroin in the Columbus area from 2004 until 2008 (count 1).
The monitored calls provided the basis for the multiple counts of using a telephone to
facilitate the charged conspiracy (counts 4-18). Defendant’s substantive drug and
firearm convictions arose from the seizure of heroin and firearms from two locations
during the execution of search warrants on April 21, 2008 (counts 2-3, 19-22).
United States v. Kelsor
There was testimony that prior to 2006, defendant lived with coconspirators
Ernestine Bankston and Victor Woodson in the Clifton Apartments in Columbus, Ohio.
There, defendant, Bankston, Woodson, and others prepared and packaged heroin for
delivery to roughly twenty customers per day. Defendant moved to 703½ Kossuth Street
in Columbus, Ohio, where he lived with Bankston, Woodson, and Elisha Collins.
Defendant, Bankston, Woodson, Collins, and Billy Lee prepared and distributed heroin
on a daily basis working at a black card table in the living room of the Kossuth Street
residence. On the card table would be heroin, a grinder, bags, pen and paper to take
phone orders, and firearms. In October 2007, wanting to be away from the heroin
operation at night, defendant and Bankston began living at 1722 South Hamilton Road
in Columbus. Woodson continued to live at the Kossuth address, where heroin was
prepared and distributed on a daily basis. Defendant met one of his suppliers at the
Hamilton Road address, and kept drugs, money, and a firearm in the bedroom he shared
Defendant had several sources, including David McReynolds who delivered up
to 50 grams of heroin on more than 30 occasions, and Edmund Plunk who delivered, or
directed that Mandell Cantrell deliver, between 20 and 60 grams on more than 50
occasions. The heroin prepared by defendant and his coconspirators was sold to
customers who both used and resold the heroin to others. Those customers included
Mitchell Wood, Paul Coon, Mark Dowdy, Charles Carmichael, Keith Herdman, Andrea
Herdman, Kristine Dixon, and Karessa Dixon. Carmichael testified that he purchased
heroin from the defendant between 2004 and 2008; usually purchased between two and
five bundles of ten bags each (or two to five grams) of heroin; and, by the end of that
period, was calling to arrange a purchase every day or every other day.
Mitchell Wood traveled from Athens County, Ohio, to purchase heroin from the
defendant on almost a daily basis between May 2007 and April 2008. Wood testified
that he purchased heroin in quantities ranging from three to twenty-eight bundles, and
estimated that he obtained a total of more than 1,000 grams of heroin from the defendant.
Wood explained that he sometimes brought others with him to purchase heroin and that,
United States v. Kelsor
when he did, they would pool their money and have only one person conduct the
Multiple search warrants were executed on April 21, 2008, including at both the
Kossuth Street and Hamilton Road residences. Defendant was arrested at the Kossuth
address, where 16 grams of heroin, a scale, packaging materials, and two firearms were
also found. Specifically, agents seized a Rexio revolver that was on the bed and a Hi
Point .380 semiautomatic pistol from the living room closet. At 1722 South Hamilton
Road, a Bersa Thunder .380 handgun was found in the bed located in the bedroom that
defendant shared with Bankston. In that bedroom, agents also found $7,040 in cash and
a safe containing 60 grams of heroin, bottles of pills, and documents. A separate search
warrant executed at a residence known to be used by Plunk resulted in the seizure of
more than 1,300 grams of heroin.
Although twenty-five defendants were charged in the original indictment,
defendant was the only person charged in the second superceding indictment filed
shortly before trial.1 At the conclusion of a five-day trial, the jury found defendant
guilty on all counts. The government had filed an information pursuant to 21 U.S.C.
§ 851 identifying a number of prior convictions as the basis for statutorily enhanced
Based on a finding that defendant had two or more prior felony drug convictions,
the district court imposed a mandatory term of life imprisonment for the conspiracy
conviction pursuant to 21 U.S.C. § 841(b)(1)(A) (count 1). Along with that life
sentence, the court imposed concurrent sentences of: 360 months in prison on each of
two counts of possession with intent to distribute heroin (counts 2-3); 120 months in
prison on each of two counts of being a felon in possession of a firearm (counts 21-22);
and 48 months in prison on each of fifteen counts of using a telephone to facilitate the
charged conspiracy (counts 4-18). See 21 U.S.C. §§ 841(a)(1) and 843; 18 U.S.C.
§ 922(g)(1). In addition, the court imposed mandatory consecutive sentences of 60
Defendant had entered a guilty plea, which he successfully moved to withdraw.
United States v. Kelsor
months for the first § 924(c) conviction, and 300 months for the second § 924(c)
conviction (counts 19-20). See 18 U.S.C. § 924(c)(1)(C) and (c)(1)(D)(ii). This appeal
Sufficiency of Evidence
The denial of a defendant’s motion for acquittal challenging the sufficiency of
the evidence is reviewed de novo. United States v. Mabry, 518 F.3d 442, 447-48 (6th
Cir. 2008). The relevant question on direct appeal is whether, “after viewing 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.” Jackson v.
Virginia, 443 U.S. 307, 319 (1979). In making this determination, “we do not weigh the
evidence, assess the credibility of the witnesses, or substitute our judgment for that of
the jury.” United States v. Wright, 16 F.3d 1429, 1440 (6th Cir. 1994).
Challenging only his § 924(c) convictions, defendant argues that the evidence
was insufficient to establish that he possessed the firearms “in furtherance of” a drug
“Possession may be actual or constructive, and need not be
exclusive.” United States v. Jenkins, 593 F.3d 480, 484 (6th Cir. 2010). Constructive
possession is established when a defendant “‘knowingly has the power and the intention
at a given time to exercise dominion and control over an object, either directly or
through others.’” United States v. Hadley, 431 F.3d 484, 507 (6th Cir. 2005) (citation
omitted). There is no serious claim on appeal that the evidence was insufficient to
establish defendant’s constructive possession of the firearms seized from the Kossuth
and Hamilton addresses. Rather, the crux of defendant’s claim is that the evidence was
insufficient to establish the “in furtherance of” requirement.2
Section 924(c) criminalizes two distinct offenses: using or carrying a firearm during and in
relation to a drug offense, and possessing a firearm in furtherance of a drug offense. United States v.
Combs, 369 F.3d 925, 933 (6th Cir. 2004). Only the latter was charged in this case.
United States v. Kelsor
In the context of § 924(c), the term “in furtherance of” means that “the weapon
must promote or facilitate the crime.” United States v. Mackey, 265 F.3d 457, 461 (6th
Cir. 2001). We have explained that “possession of a firearm on the same premises as a
drug transaction would not, without a showing of a connection between the two, sustain
a § 924(c) conviction.” Id. at 462. “In order for the possession to be in furtherance of
a drug crime, the firearm must be strategically located so that it is quickly and easily
available for use.” Id. Other relevant factors include “whether the gun was loaded, the
type of weapon, the legality of its possession, the type of drug activity conducted, and
the time and circumstances under which the firearm was found.” Id. In this case, there
was ample evidence from which a rational trier of fact could conclude that defendant
possessed the firearms in furtherance of the drug offenses, and that “the firearm’s
presence in the vicinity of the crime was something more than mere chance or
coincidence.” United States v. Combs, 369 F.3d 925, 933 (6th Cir. 2004).
Defendant was arrested at the Kossuth address, which had been leased by him
and was his primary residence until October 2007. After he and Bankston began living
at the Hamilton address, they still went to the Kossuth address every day to engage in
heroin distribution activities and “would close up shop” in the evening. Collins and
Woodson testified that defendant told them that he kept the firearms in case someone
tried to rob him. Woodson also feared being robbed, and began sleeping with the Rexio
revolver after defendant and Bankston began staying at the Hamilton address. In fact,
agents found the Rexio revolver on the bed. The Hi Point semiautomatic pistol was
found on the top shelf of the livingroom closet, which was the same closet where agents
found the 16 grams of heroin, a scale, and packaging materials. Bankston testified that
the firearms would be at the card table while they prepared heroin for distribution,
usually right next to defendant, and that she saw both defendant and Woodson handle
At the Hamilton Road address, agents found the Bersa Thunder pistol in the bed
that defendant shared with Bankston. In that same bedroom, agents found more than
$7,000 in cash and a safe that contained 60 grams of heroin. Also, Cantrell testified that
United States v. Kelsor
he delivered, or was along when Plunk delivered, heroin to defendant at the Hamilton
Road address on a number of occasions. Bankston stated that the defendant kept the
firearm in the safe in the bedroom or under his pillow.
Defendant stipulated that, as a convicted felon, he could not legally possess a
firearm. The firearms were possessed illegally, were strategically located so as to be
quickly and easily available for use, and were constructively possessed for protection
against robbery in the context of an ongoing heroin distribution operation. Because a
reasonable juror could conclude that there was a connection between defendant’s
constructive possession of the firearms seized from the Kossuth Street and Hamilton
Road residences and the underlying drug offenses, the evidence was sufficient to
support defendant’s convictions for possession of a firearm in furtherance of a drug
trafficking crime. See United States v. Swafford, 385 F.3d 1026, 1028-29 (6th Cir.
2004); United States v. Couch, 367 F.3d 557, 561 (6th Cir. 2004).3
For an out-of-court statement to be admissible under Fed. R. Evid. 801(d)(2)(E),
the offering party must establish by a preponderance of the evidence that a conspiracy
existed, that the defendant was a member of the conspiracy, and that the coconspirator’s
statement was made during the course and in furtherance of the conspiracy. See United
States v. Wilson, 168 F.3d 916, 920 (6th Cir.1999); United States v. Clark, 18 F.3d 1337,
1341 (6th Cir. 1994). These findings, often referred to as Enright findings, must be
made by the district court. See United States v. Enright, 579 F.2d 980, 986-87 (6th Cir.
1978). If the statement is admitted conditionally but the government fails to carry its
burden by a preponderance of the evidence, the district court should grant a mistrial
The government also argues that proof of a sufficient nexus is further supported by evidence that
defendant took a firearm from Coon in partial payment for heroin. United States v. Frederick, 406 F.3d
754, 764 (6th Cir. 2005) (holding that acquisition of a firearm in exchange for drugs is a sufficient nexus
to establish possession in furtherance of the drug sale). Defendant points out that, although Coon’s
handgun was described as a silver and black .380 caliber handgun with a “loose slide,” no witness
identified it to be one of the seized firearms. Nor did the government represent otherwise in closing, noting
only that two of the seized firearms were silver and black .380 caliber handguns.
United States v. Kelsor
unless convinced that a cautionary instruction would shield the defendant from
prejudice. See United States v. Vinson, 606 F.2d 149, 153 (6th Cir. 1979).
The government elicited through Wood an out-of-court statement by Coon
indicating that Coon intended to trade a handgun to defendant in partial payment for
heroin. Over defense counsel’s objection and despite an attempt to impeach Wood with
his prior grand jury testimony, the district court found that the statement was admissible
under Rule 801(d)(2)(E) and denied defendant’s motion for a mistrial. This court
reviews the district court’s conclusions of law de novo, and its factual determinations for
clear error. See United States v. Payne, 437 F.3d 540, 544 (6th Cir. 2006).
Defense counsel’s hearsay objection was initially sustained, but the government’s
proffer satisfied the district court that the necessary showing could be made under Rule
801(d)(2)(E). By way of foundation, Wood testified that on one occasion when he and
Coon drove to Columbus to obtain heroin from defendant, Coon had a silver and black
.380 caliber handgun with him. When they got there, Coon got out of the car with
money and the handgun and returned to the car with the heroin and without the handgun.
Then, over defense counsel’s continuing objection, Wood testified as follows:
Q: At any point in time, sir, did Mr. Coon explain to you why he brought
that .380 with him?
A: Yes he did.
Q: What did he tell you?
A: He was short on his money, his part of the money, and he had asked
Ron [Kelsor] if he would take the gun in exchange for the rest of the
money that he owed for the heroin.
On cross-examination, defense counsel attempted to impeach Wood with his
statement before the grand jury that he “found out about it later.” Wood clarified on
redirect examination, however, that Coon told him about trading the handgun to the
defendant on the way to Columbus, and that what Wood did not find out about until later
was that Coon had told the defendant that Wood was planning to rob him (apparently in
United States v. Kelsor
an effort to persuade the defendant to take the handgun). As the prosecutor emphasized
during the redirect examination, Wood testified before the grand jury that Coon
“discussed it on the phone with Ron [Kelsor] before he picked me up. Then told me he
was selling the gun, but never told me why. I found it out later.” To clarify, Wood was
asked before the grand jury: “So you didn’t know that Paul [Coon] had told Ron Kelsor
that you were going to rob him until afterwards? You found that out afterwards?”
Wood answered, “Correct.”
Defense counsel renewed the objection, moving to strike the testimony and for
a mistrial. The district court heard arguments, reviewed the relevant grand jury
testimony, and commented that the jury might have to resolve the question of whether
Wood’s testimony was inconsistent about when Coon made the statement. Seizing on
that comment, defendant argues that the district court erred by giving weight to the
jury’s obligation to assess credibility in deciding the threshold question of admissibility.
On the contrary, the district court’s ruling on the motion the following morning
explicitly recognized that the question of admissibility was a matter for the court to
determine and that the jury was not to be instructed on the issue.4
In deciding the motion, the district court articulated the proper standards, made
explicit findings with respect to each of the Enright findings, concluded that the
statement was properly admitted, and denied the motion for a mistrial. Defendant does
not contest the district court’s findings that a conspiracy existed; that defendant, Wood,
and Coon were all members of that conspiracy; or that defendant knew that Wood and
Coon were obtaining heroin from him for further distribution. Rather, relying on the
alleged inconsistency about when Coon made the statement, defendant argues that it was
not made “in furtherance of” the conspiracy.
The district court explained: “So, I think it is clear that I make the determination of the three
grounds for admissibility on applying the standard of preponderance of the evidence and that the jury
ultimately will decide the credibility of the co-conspirator’s testimony under the reasonable doubt standard
and pursuant to their duty to weigh and determine the ultimate credibility of the witnesses and the special
rules for considering the testimony of co-conspirators. Particularly, those who may have received the
benefit of a plea agreement.”
United States v. Kelsor
“A statement is made in furtherance of a conspiracy if it was intended to promote
conspiratorial objectives; it need not actually further the conspiracy.” United States v.
Salgado, 250 F.3d 438, 449 (6th Cir. 2001). Statements in furtherance of a conspiracy
take many forms, including statements that keep a coconspirator apprised of another’s
activities, induce continued participation, or allay his fears. Id. at 450. Defendant has
not shown that it was clear error to find by a preponderance of the evidence that Coon
made the statement in the car on the way to meet the defendant, or that what Wood found
out later, and probably not from Coon, was that Coon had told the defendant that Wood
was planning to rob him. A preponderance of the evidence established that the statement
was made in the course and furtherance of the conspiracy. Specifically, there was
evidence that, as was their practice, Wood and Coon pooled their money to conduct a
single transaction with the defendant. But, short on his portion of the money on this
occasion, Coon explained to Wood that he had asked the defendant to accept the
handgun in partial payment of their joint purchase. The district court did not err in
finding that the statement was “intended to promote conspiratorial objectives.”
Accordingly, the district court did not abuse its discretion in admitting the statement or
denying the motion for mistrial.5
Defendant seeks reversal on the grounds that the district court failed to give the
multiple conspiracy instruction that he requested. We review the district court’s jury
instructions for abuse of discretion. United States v. Prince, 214 F.3d 740, 761 (6th Cir.
2000). This court may reverse on the grounds of an improper jury instruction “‘only if
the instructions, viewed as a whole, were confusing, misleading, or prejudicial.’” United
States v. Harrod, 168 F.3d 887, 892 (6th Cir. 1999) (citation omitted). The “district
court’s refusal to deliver a requested instruction is reversible only if that instruction is
The government also argues that even if Wood learned about the handgun-for-heroin agreement
afterwards, it would still have been in furtherance of the conspiracy because it would not be “idle chatter,”
but would be to keep a coconspirator apprised of the activities of the conspiracy. Finally, the government
argues that if error, it would be harmless because Wood’s testimony provided circumstantial evidence of
the trade, and there was more than sufficient evidence to establish defendant’s possession of firearms was
not innocent possession unrelated to the drug conspiracy.
United States v. Kelsor
‘(1) a correct statement of the law, (2) not substantially covered by the charge actually
delivered to the jury, and (3) concerns a point so important in the trial that the failure to
give it substantially impairs the defendant’s defense.’” United States v. Mack, 159 F.3d
208, 218 (6th Cir. 1998) (citation omitted). Reversal is not required if the defendant
suffers no actual prejudice. United States v. Caver, 470 F.3d 220, 246 (6th Cir. 2006).
“[W]hen the evidence is such that the jury could within reason find more than
one conspiracy, the trial court should give the jury a multiple conspiracy instruction.”
United States v. Warner, 690 F.2d 545, 551 (6th Cir. 1982). The danger such an
instruction seeks to avoid, as in the context of a variance, “is the transference of guilt
from defendants involved in one conspiracy to defendants in another conspiracy, such
that a defendant is convicted for a conspiracy for which he was not indicted.” Caver,
470 F.3d at 246. Defense counsel requested a standard multiple conspiracy instruction,
which appears to have been included in an initial draft of the district court’s proposed
instructions. Although no objections were made to the final draft of the instructions,
which presumably did not include the requested instruction, defense counsel specifically
objected to the district court’s failure to give a multiple conspiracy instruction before the
jury retired to deliberate. See FED. R. CRIM. P. 30(d).
Addressing the objection outside the presence of the jury, the district court
explained that the omission was not an oversight, but was based on a determination that
it was not appropriate because the evidence did not implicate the defendant in more than
one conspiracy. Defense counsel countered that, as the closing arguments indicated, the
government was asking the jury to hold defendant responsible for 1,300 grams of heroin
seized in the search of the residence controlled by Plunk, even though there was
evidence that Plunk had several other major customers who were not associated with the
After considering the arguments, the district court found that there was not
evidence from which the jury could reasonably convict the defendant of a conspiracy for
which he was not indicted. However, concerned that the jury might attribute the 1,300
United States v. Kelsor
grams of heroin to the defendant in making the quantity determination, the district court
gave the following additional charge to the jury:
In making the quantity determination, you may only consider the
quantities of heroin which you find beyond a reasonable doubt were
knowingly and intentionally possessed with the intent to distribute and/or
were distributed by the defendant and/or by other persons acting with the
knowledge and consent of the defendant, during the existence of and in
furtherance of the common illegal goals of the conspiracy alleged in
Count 1 of the Indictment.
In making the quantity determination, you must not consider
evidence of the amount of heroin allegedly seized from the residence of
Edmond Plunk at 1623 Waterstone Court.
Given this instruction, the jury was instructed that it could not attribute the heroin seized
from Plunk’s residence in determining whether the conspiracy to distribute or possess
with intent to distribute heroin, for which there was overwhelming evidence, involved
more than 1,000 grams of heroin. As such, defendant cannot demonstrate prejudice from
the district court’s failure to give a multiple conspiracy instruction.6
Admission of Testimony Regarding Wiretapped Calls
In the final challenge to his convictions, defendant argues that the district court
erred in allowing witnesses to “interpret” wiretapped conversations to which they were
not a party. The district court’s evidentiary rulings are reviewed for abuse of discretion.
See Gen. Elec. Co. v. Joiner, 522 U.S. 136, 141-42 (1997). “Even when the district court
has abused its discretion in admitting evidence, we do not reverse a conviction if the
error is harmless, meaning that ‘it appears beyond a reasonable doubt that the error
complained of did not contribute to the verdict obtained.’” United States v. LopezMedina, 461 F.3d 724, 741 (6th Cir. 2006) (citation omitted).
In a supplemental brief, defendant argues that trial counsel’s failure to request, or to object to
the failure to include the multiple conspiracy instruction constituted ineffective assistance of counsel.
Without addressing the ineffective assistance of counsel claim on the merits, we note that defendant’s
proposed instructions appear to have included a multiple conspiracy instruction. United States v. Pruitt,
156 F.3d 638, 646 (6th Cir. 1998) (stating that this court generally “‘will not review an ineffective
assistance of counsel claim that is raised for the first time on appeal’”) (citation omitted).
United States v. Kelsor
Wiretapped calls were published to the jury during the testimony of a number of
witnesses, many of whom were participants in the calls. Without much development,
defendant challenges testimony from Keith Herdman, Mitchell Wood, Mandell Cantrell,
and Agent Bakr concerning calls to which they each were not a party. The government
described the testimony as falling into two categories: (1) testimony regarding the
identity of the callers; and (2) testimony about what the witness understood certain
statements to mean.
With respect to voice identification, the government maintains that in each
instance the challenged witness had a proper basis for making a reliable identification
of the speaker. See FED. R. EVID. 901(b)(5) (voices may be identified “by opinion based
upon hearing the voice at any time under circumstances connecting it with the alleged
speaker”); United States v. Cooper, 868 F.2d 1505, 1519 (6th Cir. 1989); United States
v. Simms, 351 F. App’x 64, 68-69 (6th Cir. 2009). Defendant has not shown otherwise.
Defendant relies on this court’s statement in an unpublished decision that the
agent’s testimony interpreting the meaning of recorded calls was “likely improper” as
he “was not a party to the conversation and the conversation, though vague and cryptic,
did not include many words or terms with which a juror would have been unfamiliar.”
United States v. Blakely, 375 F. App’x 565, 570 (6th Cir. 2010). However, the court did
not hold that only participants may testify concerning the meaning of a recorded
telephone call but, rather, rejected the claim because defense counsel had opened the
door to questioning about whether drugs were actually mentioned in the calls, no
contemporaneous objection to the testimony had been made, and any error in failing to
give a curative instruction was harmless.
Defendant’s primary argument is that the witnesses could not have testified with
personal knowledge about recorded calls to which they were not a party. A witness is
required to have personal knowledge of the matters about which he testifies, except in
the case of expert opinions, but the threshold for admitting testimony under Rule 602 is
low. United States v. Hickey, 917 F.2d 901, 904 (6th Cir. 1990); see FED. R. EVID. 602.
Many calls were presented during the testimony of one of the participants and are not
United States v. Kelsor
challenged on appeal. For example, Bankston testified about three calls in which she
participated, and McReynolds testified concerning seven calls between himself and the
Among the challenged witnesses, Keith Herdman testified about two calls
between himself and defendant and one call between his wife Andrea and defendant.
After identifying the voices of his wife and defendant, Herdman was asked what he
understood his wife to mean when she asked for “two bundles,” and he responded that
it referred to twenty individual bags of heroin. The government emphasizes that
Herdman provided a foundation showing he had personal knowledge of the matter by
testifying that he and his wife obtained heroin from defendant together, that she would
place the call to defendant, and that he and his wife would meet defendant later to make
the purchase. Defendant has not demonstrated that it was an abuse of discretion to admit
Eight recorded calls were published to the jury during Mitchell Wood’s
testimony, including five calls in which Wood was a participant. Defendant objected to
testimony regarding the three calls between Wood’s girlfriend Kristine Dixon and
defendant. At issue is Wood’s testimony that Dixon was referring to bundles of heroin
when she is heard saying that she wanted “six,” or that she wanted “twenty-two.” Wood
had already testified how he was familiar with Dixon’s purchasing practices. When
Wood was asked what defendant meant when he said it was “too hot,” defense counsel’s
objection was sustained. It was not an abuse of discretion to find the challenged
testimony—that the numbers Dixon referred to in calls to defendant referred to bundles
of heroin—was based on personal knowledge. Further, any error was harmless since
Wood explained that he knew the numbers referred to bundles rather than individual
bags because they “never bought bags, any of us,” would not travel 60 miles to
Columbus for individual bags, and always purchased “bundles.”
Cantrell was a participant in only one of the eight calls published during his
testimony, and testified that the other calls were between Plunk and the defendant.
Cantrell testified that he was a “runner” making deliveries for Plunk, including to the
United States v. Kelsor
defendant. Cantrell testified that references to “he” or “him” and checking to see if “he
had enough on him” were references to himself and heroin. He also explained that
references to numbers, as in “50” or “the 21” that he had, were understood to refer to
grams of heroin. No objection was made to this testimony. Nor has defendant attempted
to show that Cantrell did not have personal knowledge concerning these matters.
Finally, defendant complains only generally that Agent Bakr identified voices
on a number of calls. The district court required a foundation for Bakr’s voice
identifications, and sustained defense counsel’s objection with respect to several
individuals because the foundation was not sufficient. As with the other witnesses’
voice identifications, defendant has not demonstrated either an abuse of discretion or
plain error. When the government began asking Bakr, a DEA agent, about the meaning
of terms such as “fronting,” “dime,” and “stack” in the context of narcotics trafficking,
defendant objected and counsel was permitted to conduct voir dire outside the presence
of the jury. The district court made further inquiry before allowing the witness to offer
her opinion based on her experience as a drug enforcement agent and police officer.
Although the district court did not identify Bakr as an expert witness, in keeping
with the defendant’s pretrial request that the term be avoided in front of the jury, this is
the sort of specialized knowledge that courts have permitted law enforcement officers
to testify about as long as the testimony is relevant and reliable. See United States v.
Johnson, 488 F.3d 690, 697-98 (6th Cir. 2007); United States v. Swafford, 385 F.3d
1026, 1030 (6th Cir. 2004). Defendant has failed to demonstrate that the district court
abused its discretion by permitting Agent Bakr to offer opinion testimony based on her
specialized knowledge and experience. See Lopez-Medina, 461 F.3d at 743.
Consecutive Sentences under § 924(c)
Attacking the consecutive sentences imposed for his § 924(c) convictions,
defendant argues that § 924(c)’s “except clause” proscribed the imposition of the
mandatory minimum consecutive sentences of 60 months and 300 months since he also
United States v. Kelsor
received a mandatory minimum life sentence for the conspiracy conviction under 21
U.S.C. § 841(b)(1)(A).7 Acknowledging that this argument was not raised at sentencing,
defendant argued for application of this court’s subsequent holding to that effect in
Almany, but, as the government points out, Almany has since been vacated in light of the
Supreme Court’s contrary interpretation in Abbott v. United States, 131 S. Ct. 18 (2010).
See United States v. Almany, 598 F.3d 238, 241-42 (6th Cir.), vacated 131 S. Ct. 637
(2010). Following Abbott, this court has explained that the “except” language in
§ 924(c) “refers only to other provisions imposing longer mandatory sentences ‘for the
conduct § 924(c) proscribes, i.e., possessing a firearm in connection with a predicate
crime.’” United States v. Ham, 628 F.3d 801, 812 (6th Cir. 2011) (citation omitted). As
a result, the defendant’s mandatory minimum sentences under § 924(c) must run
consecutively with any mandatory sentence for predicate crimes such as the convictions
for possession with intent to distribute heroin. United States v. Clark, 634 F.3d 874, 877
(6th Cir. 2011).
Enhanced Sentence under § 841(b)(1)(A)
The penalty provisions applicable to defendant’s conviction for conspiracy to
distribute or possess with intent to distribute 1,000 grams or more of heroin provide that,
if committed “after two or more prior convictions for a felony drug offense have become
final,” the defendant “shall be sentenced to a mandatory term of life imprisonment
without release[.]” 21 U.S.C. § 841(b)(1)(A). In order to impose this statutory
sentencing enhancement, the government must provide the required notice by filing an
information pursuant to 21 U.S.C. § 851(a). United States v. Mans, 999 F.2d 966, 969
(6th Cir. 1993). The sufficiency of the filing of an information pursuant to § 851(a) is
a question of law, which this court reviews de novo. United States v. Pritchett, 496 F.3d
Section 924(c)(1)(A) provides that: “Except to the extent that a greater minimum sentence is
otherwise provided by this subsection or by any other provision of law,” a person who possesses a firearm
during and in relation to a crime of violence or drug trafficking crime, or uses or carries a firearm in
furtherance of such crime, shall, “in addition to the punishment provided for such crime of violence or drug
trafficking crime” be sentenced to not less than five years, and in the case of a second or subsequent
conviction, not less than 25 years. The except clause does not preclude the consecutive § 924(c) sentences
in this case because they arise from separate substantive predicate drug offenses. See United States v.
Graham, 275 F.3d 490, 519-20 (6th Cir. 2001).
United States v. Kelsor
537, 541 (6th Cir. 2007). Since neither claim was raised in the district court, however,
our review is for plain error. United States v. Gonzalez, 512 F.3d 285, 288 (6th Cir.
The information filed prior to trial in this case identified six prior convictions,
including three prior felony drug convictions. Defendant’s response to that information
did not contest the existence or accuracy of those prior convictions, but successfully
argued that the convictions could not support the enhanced penalties under § 924(e). At
sentencing, the government made a proffer of evidence establishing that defendant had
three prior felony drug convictions required by § 841(b)(1)(A). Defendant then signed
a written stipulation acknowledging the following three prior felony drug convictions
in the Court of Common Pleas of Franklin County, Ohio: (1) Aggravated Trafficking,
No. 82CR-07-2236, on or about May 19, 1983; (2) Preparation of Heroin for Sale and
Possession of Cocaine, No. 00CR-0517, on or about August 13, 2001; and (3) Possession
of Heroin and Having Weapons under Disability, No. 99R-2699, on or about August 13,
2001. Addressed directly by the district court, defendant himself agreed that the facts
in the stipulation were true. After finding that defendant had two or more prior felony
drug convictions, the district court imposed a mandatory minimum sentence of life
imprisonment for the conspiracy offense.
First, defendant argues that the Information, as well as the stipulation at
sentencing, inaccurately identified the date of conviction for Aggravated Trafficking as
May 14, 1983, when that was the date of his guilty plea and the judgment was not
entered until July 18, 1983. The information otherwise correctly identified the court, the
case number, and the conviction. In examining the adequacy of the notice under § 851,
“the proper inquiry is whether the government’s information provided the defendant
‘reasonable notice of [its] intent to rely on a particular conviction and a meaningful
opportunity to be heard.’” United States v. King, 127 F.3d 483, 488-89 (6th Cir. 1997)
(citation omitted). Defendant has not shown that the misidentification of the date of
conviction deprived the defendant of reasonable notice or a meaningful opportunity to
be heard. Id. at 489 (holding defendant had adequate notice when information listed
United States v. Kelsor
offense and court despite error in date). Defendant cannot demonstrate plain error with
respect to the § 851 notice of this conviction.
Second, defendant argues that it was improper for the other two felony drug
convictions to be counted separately because he was arrested for these offenses on the
same day and was sentenced for those convictions on the same day. See United States
v. Murphy, 107 F.3d 1199, 1208-10 (6th Cir. 1997). Not only is this claim without merit,
but any error would be harmless because the mandatory life sentence is triggered by two
or more felony drug convictions.
This court has adopted a “separate criminal episodes” test for determining
whether prior felony drug convictions are separate predicate convictions for purposes
of enhancement under § 841(b)(1)(A). This test asks whether the convictions arise from
“separate criminal episodes” that are “distinct in time.” “An episode is an incident that
is part of a series, but forms a separate unit within the whole. Although related to the
entire course of events, an episode is a punctuated occurrence with a limited duration.”
United States v. Hughes, 924 F.2d 1354, 1361 (6th Cir. 1991).
Although the records indicate that the sentences imposed in Case Nos. 00CR0517 and 99R-2699 on August 13, 2001, were to run concurrently with each other, the
separate indictments reflect that the drug convictions arose from separate criminal
episodes. In Case No. 99R-2699, defendant was indicted in May 1999 on charges
arising from the possession of heroin and cocaine on January 7, 1999, while in Case No.
00CR-0517, defendant was indicted in February 2000 on charges arising from the
possession of heroin and cocaine on October 16, 1999. Defendant has not shown error,
much less plain error, in counting the convictions in these two cases separately where
the records reflect that the convictions arose from separate criminal episodes that are
distinct in time. See, e.g., United States v. Goins, 53 F. App’x 724, 729-30 (6th Cir.
2002) (holding that two felony convictions for drug sales that took place six weeks apart
to the same government informant arose from separate episodes even though he was
convicted on both counts on the same day); United States v. Jones, 205 F. App’x 327,
United States v. Kelsor
335-36 (6th Cir. 2006) (per curiam) (holding separate convictions for drug transactions
occurring four or five days apart were properly counted as separate convictions).
Constitutionality of Life Sentence
Finally, challenging the constitutionality of the mandatory life sentence,
defendant argues (1) that the enhancement of his sentence based upon his prior
convictions violated the Double Jeopardy Clause of the Fifth Amendment; and (2) that
the mandatory life sentence is so disproportionate as to constitute cruel and unusual
punishment in violation of the Eighth Amendment. Constitutional challenges to a
sentence present questions of law that are reviewed de novo. See United States v. Jones,
569 F.3d 569, 573 (6th Cir. 2009). While the government argues that only the Eighth
Amendment claim was raised in the district court, both claims fail even under a de novo
The Double Jeopardy Clause “protects against a second prosecution for the same
offense after acquittal; against a second prosecution for the same offense after
conviction; and against multiple punishments for the same offense.” United States v.
Mack, 938 F.2d 678, 679 (6th Cir. 1991). This court has squarely rejected defendant’s
contention that the enhancement of a sentence under § 841(b) on the basis of prior felony
drug convictions violates double jeopardy. See Pruitt, 156 F.3d at 645-46; United States
v. Flowal, 163 F.3d 956, 963 (6th Cir. 1998); United States v. Gonzalez, 257 F. App’x
932, 945-46 (6th Cir. 2007).
This court adheres to the “narrow proportionality principle” for evaluating Eighth
Amendment claims articulated in Harmelin v. Michigan, 501 U.S. 957, 996-97 (1991)
(Kennedy, J., concurring). See United States v. Graham, 622 F.3d 445, 452 (6th Cir.
2010), cert. denied, 131 S. Ct. 2962 (2011); United States v. Hill, 30 F.3d 48, 50-51 (6th
Cir. 1994). A plurality in Harmelin rejected the claim that the Eighth Amendment
required strict proportionality and concluded that it prohibited only “extreme sentences
that are ‘grossly disproportionate’ to the crime.” 501 U.S. at 1001. Applying this
principle, the plurality in Harmelin rejected the defendant’s assertion that his sentence
of life imprisonment without parole was grossly disproportionate to the crime since he
United States v. Kelsor
was a first-time felony offender in possession of 650 grams of cocaine. Id. Likewise,
this court has held that imposition of a life sentence without parole for a third felony
drug conviction is not “grossly disproportionate” to the crime. See Hill, 30 F.3d at 5051; see also Jones, 569 F.3d at 573-74; United States v. Wimbley, 553 F.3d 455, 463 (6th
Cir. 2009); Caver, 470 F.3d at 247. Defendant’s assertion of this claim fairs no better.
To the extent that defendant asserts a lack of proportionality between himself and others
convicted of similar offenses, this court held that comparative proportionality is not
mandated by the Constitution. See United States v. Layne, 324 F.3d 464, 474 (6th Cir.
For the reasons stated, defendant’s convictions and sentences are AFFIRMED.
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