United States v. Derrick Samuels

• Court: Court of Appeals for the Sixth Circuit
• Decided: July 18, 2019
• Docket: 18-2193
• Status: Unpublished

Opinion

NOT RECOMMENDED FOR FULL-TEXT PUBLICATION File Name: 19a0372n.06

No. 18-2193

UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT FILED Jul 18, 2019 DEBORAH S. HUNT, Clerk UNITED STATES OF AMERICA, ) ) Plaintiff-Appellee, ) ON APPEAL FROM THE ) UNITED STATES DISTRICT v. ) COURT FOR THE WESTERN ) DISTRICT OF MICHIGAN DERRICK GARRELL SAMUELS, ) ) OPINION Defendant-Appellant. ) )

Before: MOORE, KETHLEDGE, and MURPHY, Circuit Judges.

KAREN NELSON MOORE, Circuit Judge. A jury found Derrick Garrell Samuels

guilty of one count of conspiracy to distribute and possess with intent to distribute heroin, three

counts of distribution of heroin, and one count of attempted distribution of heroin. The district

court sentenced Samuels to 240 months of incarceration. Samuels now argues that his trial was

tainted by errors, the evidence was insufficient to support a conspiracy charge, and his sentence

was unreasonable. His trial and sentencing were free of the errors he alleges, and we AFFIRM

the judgment of the district court.

I. BACKGROUND

Samuels spent years dealing heroin in the Upper Peninsula of Michigan. R. 121 (Trial Tr.

Vol. II at 248–49) (Page ID #742–43). Some of his purchasers re-sold the heroin they bought from

him, drove him to Chicago to pick up more heroin, and cleaned his house after it was searched by

the police. E.g., id. at 257 (Page ID #751); id. at 481 (Page ID #975); id. at 271 (Page ID #765). No. 18-2193, United States v. Samuels

These co-conspirators testified against Samuels at his trial. All indicated they would assert their

Fifth Amendment rights if asked questions about drugs, and so all were given use immunity. E.g.,

id. at 304–05 (Page ID #798–99). The jury found Samuels guilty of all five counts.1 R. 139

(Judgment at 1) (Page ID #1538). At sentencing, Samuels argued to the district court that, despite

the fact that the career offender Guidelines applied to him, he should be sentenced as though they

did not because his predicate offenses and offense of conviction were all free of weapons or overt

violence and involved relatively small amounts of drugs. R. 143 (Sentencing Tr. at 9) (Page ID

#1559). The district court sentenced Samuels to 240 months of incarceration, a below-Guidelines

sentence. R. 139 (Judgment at 2) (Page ID #1539). Samuels appeals.

II. ANALYSIS

A. Samuels’s Sentence Was Reasonable

Samuels begins by challenging the procedural and substantive reasonableness of his below-

Guidelines sentence. A district court commits procedural error by “failing to calculate (or

improperly calculating) the Guidelines range, treating the Guidelines as mandatory, failing to

consider the § 3553(a) factors, selecting a sentence based on clearly erroneous facts, or failing to

adequately explain the chosen sentence—including an explanation for any deviation from the

Guidelines range.” Gall v. United States, 552 U.S. 38, 51 (2007). An adequate explanation of a

sentence should “set forth enough to satisfy the appellate court that [the sentencing judge] has

considered the parties’ arguments and has a reasoned basis for exercising his own legal

1 One count of conspiracy to distribute and possess with intent to distribute heroin, three counts of distribution of heroin, and one count of attempted distribution of heroin. R. 139 (Judgment at 1) (Page ID #1538).

2 No. 18-2193, United States v. Samuels

decisionmaking authority.” Rita v. United States, 551 U.S. 338, 356 (2007). The district judge

need not “give the reasons for rejecting any and all arguments [made] by the parties for alternative

sentences,” but it must address “particular” and “nonfrivolous” arguments in such a way that shows

it “considered the defendant’s argument,” and it must “explain[] the basis for rejecting it.” United

States v. Gapinski, 561 F.3d 467, 474 (6th Cir. 2009) (quoting United States v. Lalonde, 509 F.3d

750, 770 (6th Cir. 2007)).

A sentence is substantively unreasonable if, considering the totality of the circumstances,

“the sentence is ‘greater than necessary’ to achieve the sentencing goals set forth in 18 U.S.C.

§ 3553(a).” United States v. Tristan-Madrigal, 601 F.3d 629, 632–33 (6th Cir. 2010).

A substantively unreasonable sentence may result if “the district court selects the sentence

arbitrarily, bases the sentence on impermissible factors, fails to consider pertinent § 3553(a) factors

or gives an unreasonable amount of weight to any pertinent factor.” Id. at 633 (quoting United

States v. Walls, 546 F.3d 728, 736 (6th Cir. 2008)). We review challenges to the substantive

reasonableness of a sentence for abuse of discretion. United States v. Taylor, 800 F.3d 701, 713

(6th Cir. 2015). Within-Guidelines sentences are presumptively reasonable, and defendants who

challenge the substantive reasonableness of a below-Guidelines sentence “bear a heavy burden.”

United States v. Greco, 734 F.3d 441, 450 (6th Cir. 2013).

Samuels argues the district court committed two errors that rendered his sentence

unreasonable. First, he argues it erred by “not sufficiently considering the 3553(a) [sic] factors

and the Appellant’s arguments that those factors justified leniency.” Appellant Br. at 40. Next,

he argues that the district court did “not discuss or address the real rationale behind” a 2016 report

3 No. 18-2193, United States v. Samuels

of the Sentencing Commission that recommended that offenders with only non-violent drug

offenses be excepted from the career-offender sentencing enhancement. Id. at 43. Samuels’s

articulation of the errors he alleges—that the district court did not “sufficiently” consider his

argument or “address the real rationale” behind the Sentencing Commission report—reveals the

fatal flaw in his claim, and the reason we deny it: the district court did consider the § 3553(a)

factors and the 2016 Sentencing Commission report. Not only did it consider Samuels’s

arguments, but also it gave a below-Guidelines sentence for those very reasons. It did not,

however, accept Samuels’s arguments in full. That is not an error.

The crux of Samuels’s argument, both to the district court and on appeal, is that Samuels

is the sort of criminal for whom the application of the career-offender enhancement does not make

sense.2 R. 143 (Sentencing Tr. at 9) (Page ID #1559). Both of Samuels’s prior felonies were

non-violent drug offenses based on relatively small amounts of drugs. Id. None of the

evidence at trial suggested overt violence, nor was a gun involved. Samuels is the sort

of offender that a 2016 report of the Sentencing Commission suggested should not

be subject to the career-criminal enhancement. See Report to the Congress: Career Offender

Sentencing Enhancements, U.S. Sentencing Comm’n 3 (Aug. 2016),

2Samuels claims that, in addition to the career-offender argument, the district court failed adequately to address his arguments based on other § 3553(a) factors. Appellant Br. at 36–37. These arguments seem to be similar to, if not duplicative of, the career-offender argument. For example, he argues that his criminal history included prior offenses that were “relatively minor” and non-violent and that his offense behavior involved “no violence or firearms.” Id. at 36. He points also to his age and the relatively small amounts of drugs involved in each transaction. Id. at 36– 37. To the extent that Samuels made § 3553(a) arguments distinct from his career-offender argument, the court sufficiently addressed at sentencing all the arguments Samuels presented. R. 143 (Sentencing Tr. at 23–34) (Page ID #1573–84).

4 No. 18-2193, United States v. Samuels

https://www.ussc.gov/sites/default/files/pdf/news/congressional-testimony-and-reports/criminal-

history/201607_RtC-Career-Offenders.pdf. Samuels presented this argument to the district court.

E.g. R. 132 (Mem. in Support of Motion for a Downward Variance at 1–3) (Page ID #1504–06).

The district court, however, did not find the report to be “a terribly persuasive piece of information

either way.” R. 143 (Sentencing Tr. at 26) (Page ID #1576). Rather, it “weigh[ed] and

consider[ed] all the facts and circumstances of the case.” Id. at 23 (Page ID #1573). It began with

the appropriately calculated Guidelines range of 262 to 327 months3 and then thoroughly explained

its reasons for sentencing Samuels to 240 months of incarceration in a colloquy that ranges over

10 pages of transcript. Id. at 23–34 (Page ID #1573–84). The district court considered the report

and its rationale, and it recognized important mitigating factors: the fact that “there still are

situations involving drug activity that . . . are even more significant and serious” than Samuels’s,

that Samuels’s “pattern of conduct didn’t involve the overt violence or use of firearms or other

overt coercion,” and that 240 months “is still a long time . . . especially for somebody in his

forties.” Id. at 27 (Page ID #1577). These mitigating factors were weighed alongside the “duration

and consistency” of Samuels’s criminal conduct, the likelihood that Samuels resumed dealing

drugs “immediately . . . or a short time thereafter” being released from prison, “the fact that there

isn’t apparently anything else [other than drug dealing] going on in Mr. Samuels’ [sic] life by way

of constructive employment anyway since age 25,” “the sheer number of transactions and the

3 Samuels does not seem to argue that the appropriate Guidelines range would have been 78 to 97 months— the range without the career-offender enhancement—although he does say that “a focus on the Appellant and his conduct meant that the guidelines were 78–97 months.” Reply Br. at 6. In any event, the district court calculated the Guidelines range correctly, using the applicable career-offender enhancement that exists under current law.

5 No. 18-2193, United States v. Samuels

number of people contacted,” the quantity of drugs involved was likely underrepresented, and the

“serious harm to lots of real people in the community” caused by Samuels’s drug dealing. Id. at

28–31 (Page ID #1578–81). Finally, the district court said that “if we didn’t have the career-

offender enhancement in place, I think this is the kind of case where there would be a good reason

to depart upward . . . to a higher level, reflecting both what I think is a significant risk of recidivist

behavior and to some extent an understatement of the severity of the actual criminal history.” Id.

at 33 (Page ID #1583).

In sum, the district court considered the Sentencing Commission report and all of

Samuels’s arguments. It considered the other § 3553(a) factors. It gave Samuels a below-

Guidelines sentence for precisely the reasons Samuels argues one was warranted: his crimes did

not involve “overt violence” and Samuels is over 40 years old. Id. at 33–34 (Page ID #1583–84).

Nevertheless, the district court determined that a long sentence was warranted in order, among

other things, to deter Samuels, who has demonstrated recidivist tendencies. Samuels’s sentence

was neither procedurally nor substantively unreasonable. Therefore, this claim fails.

B. There Was Sufficient Evidence for the Jury to Find a Drug Conspiracy Existed

Turning to his trial, Samuels contends that the government failed to present sufficient

evidence for a jury to convict him of a conspiracy to distribute and possess with intent to distribute

heroin. See R. 36 (Superseding Indictment at 1) (Page ID #66); R. 139 (Judgment at 1) (Page ID

#1538). We review post-verdict challenges to the sufficiency of the evidence by asking “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.

6 No. 18-2193, United States v. Samuels

Virginia, 443 U.S. 307, 319 (1979). “[W]e do not weigh the evidence, assess the credibility of the

witnesses, or substitute our judgment for that of the jury.” United States v. Jordan, 544 F.3d 656,

670 (6th Cir. 2008) (quoting United States v. Salgado, 250 F.3d 438, 446 (6th Cir. 2001)). To

establish a drug conspiracy under 21 U.S.C. § 846, the government must show “an agreement to

violate drug laws,” “knowledge and intent to join the conspiracy,” and “participation in the

conspiracy.” United States v. Deitz, 577 F.3d 672, 677 (6th Cir. 2009) (quoting United States v.

Martinez, 430 F.3d 317, 330 (6th Cir. 2005)).

Here, the government presented to the jury evidence that Samuels was in a conspiracy with

at least four co-conspirators. The evidence that Samuels knowingly entered into and participated

in this conspiracy was plentiful. First, two of his co-conspirators testified that they were acting as

re-sellers of his heroin. These witnesses testified that Samuels would “front” them large quantities

of heroin, which they would then re-sell and later pay Samuels with the proceeds. E.g. R. 121

(Trial Tr. Vol. II at 284) (Page ID #778) (one witness testifying that “[o]nce in a while [Samuels]

would front me a large amount [of heroin], a couple grams, and I would have to bring him back a

certain amount of money”); id. at 473–74 (Page ID #967–68) (another witness testifying that he

was re-selling heroin to people and Samuels “probably figured” that). In addition, the co-

conspirator witnesses testified about Samuels’s security precautions and “paranoi[a].” Id. at 321

(Page ID #815). He had security cameras, patted down his co-conspirators to check for wires,

changed phone numbers frequently, and would not allow purchasers into his home if he saw

someone he thought was suspicious outside. Id. at 523–24 (Page ID #1017–18); id. at 321–22

(Page ID #815–16); id. at 477 (Page ID #971); id. at 320 (Page ID #814). This supports the theory

7 No. 18-2193, United States v. Samuels

that Samuels was intentionally selling directly to a small number of people to minimize risk and

relying on his co-conspirators to re-sell to a wider customer base. Despite Samuels’s assertion to

the contrary, there was sufficient evidence from which a jury could have concluded that Samuels

did know that his co-conspirators were re-selling the heroin. See Appellant Br. at 48.

The conspiracy charge does not rely solely on the re-sellers’ testimony that Samuels knew

about their actions, however. Instead, the government presented affirmative evidence of

cooperation between the co-conspirators that demonstrated an agreement in which Samuels

knowingly participated. First, a co-conspirator witness testified that she and other co-conspirators

helped Samuels clean up his home (out of which he sold heroin) after the police raided it. Id. at

271–72 (Page ID #765–66). Next, the government presented testimony from multiple co-

conspirators who drove Samuels to Chicago so that he could pick up heroin. Samuels would ask

the co-conspirators to drive him to Chicago and then pay them with the heroin he obtained in the

city. Id. at 259–60 (Page ID #753–54); id. at 320–21 (Page ID #814–15); id. at 481–82 (Page ID

#975–76). These trips are evidence of a drug conspiracy, showing that Samuels and the co-

conspirators were in a joint venture.

Samuels argues that the co-conspirators did not know that Samuels was picking up heroin

because they never saw him get the drugs in Chicago and therefore this evidence cannot support

the existence of the conspiracy. True, the co-conspirators never saw Samuels get the drugs while

in Chicago, but there was plentiful evidence to support their unanimous testimony that the trips

were for the purpose of obtaining heroin. For example, they frequently did not receive their

payment in heroin until after arrival in Chicago, and that heroin was sometimes “unpacked” or in

8 No. 18-2193, United States v. Samuels

a different bag than Samuels’s usual packaging. Id. at 327 (Page ID #821); id. at 298 (Page ID

#792); id. at 483–84 (Page ID #977–78). Sometimes they would drive from the Upper Peninsula

to Chicago for “a quick pickup thing.” Id. at 327 (Page ID #821). Given the circumstances—the

distance from the Upper Peninsula to Chicago and the fact that Samuels usually distributed heroin

to his co-conspirators only after he got to Chicago—and the co-conspirators’ unanimous testimony

that the purpose of the trips was to acquire heroin, the jury could have reasonably found that the

trips to Chicago were a concerted effort of co-conspirators to acquire drugs.

Samuels argues that his co-conspirators were no more than purchasers and therefore he

falls into a purported buyer-seller exception to drug conspiracies. He supports his argument by

saying the evidence showed he had “no interest” in what the people to whom he sold did with the

heroin as well as his “lack of trust” of his buyers. These facts, however, do not undercut the

evidence that Samuels was a knowing participant in a drug conspiracy. “The government need

not show that a defendant participated in all aspects of the conspiracy,” and each participant in a

drug conspiracy need not be an equal partner. United States v. Odom, 13 F.3d 949, 959 (6th Cir.

1994). The government presented evidence showing that the witnesses were more than simple

customers; they were part of a conspiracy in which Samuels knowingly participated. Samuels’s

attempts to argue otherwise fail.

C. There Was No Prosecutorial Misconduct

Next, Samuels argues that he was denied a fair trial because of the manner in which

witnesses were immunized and the way the district court and prosecutor explained the immunity

grants to the jury. Multiple trial witnesses indicated they intended to assert their Fifth Amendment

9 No. 18-2193, United States v. Samuels

right against self-incrimination if asked about drug use. E.g., R. 121 (Trial Tr. Vol. II at 237)

(Page ID #731). After each of these witnesses so indicated, the district court entered an order

granting the witness use immunity. E.g., id. at 237–38 (Page ID #731–32). Each time, the district

court explained use immunity to the jury, noting that the witness could still be prosecuted for her

crimes based on other evidence and that the witness remained liable for perjury if she were to lie

under oath. E.g., id. At the close of trial, the district court instructed the jury that “[u]se immunity

means the government cannot use the witness’s own testimony against that witness in any drug

prosecution. The government may, however, prosecute drug charges against a witness if the

charges are based on evidence other than that witness’s own testimony. The government may also

prosecute the witness for perjury.” R. 122 (Trial Tr. Vol. III at 907) (Page ID #1401). These

instructions were based on the Sixth Circuit Model Instructions. See Reply Br. at 14 n.4.

Samuels argues that the manner in which these witnesses were immunized, and specifically

the multiple mentions that they remained liable for perjury, constituted prejudicial prosecutorial

misconduct or otherwise caused his trial to be unfair. Samuels’s allegations of misconduct contain

two potential errors: improper vouching and bolstering. “Improper vouching occurs when a

prosecutor supports the credibility of a witness by indicating a personal belief in the witness’s

credibility thereby placing the prestige of the office of the United States Attorney behind that

witness.” United States v. Trujillo, 376 F.3d 593, 607 (6th Cir. 2004) (quoting United States v.

Martinez, 253 F.3d 251, 253–54 (6th Cir. 2001)). “Bolstering occurs when the prosecutor implies

that the witness’s testimony is corroborated by evidence known to the government but not known

10 No. 18-2193, United States v. Samuels

to the jury.” United States v. Francis, 170 F.3d 546, 551 (6th Cir. 1999). Both errors “go to the

heart of a fair trial.” Id. Neither occurred here.

The immunity process, instructions to the jury, and accompanying mentions of perjury

liability were neither vouching nor bolstering. As to vouching, neither the prosecutor nor the

district court indicated a personal belief in a witness’s credibility. The district court’s role in the

immunization process was objective and informative. The prosecutor did argue that the witnesses

were credible, but he is allowed to do so within appropriate bounds, just as the defense was allowed

to argue they lied. See United States v. Henry, 545 F.3d 367, 379–80 (6th Cir. 2008). In fact, the

defense argued during closing arguments that the grants of immunity meant that the government’s

witnesses were not credible. R. 122 (Trial Tr. Vol. III at 939) (Page ID #1433) (“The government’s

witnesses. Let’s talk about them. We saw convicted criminals. We saw drug addicts. Informants.

All of whom were given immunity.”); id. at 953 (Page ID #1447) (“The informants all had a strong

motive to lie. They all had to keep their deals. They all had to stay out of jail. . . . The immunity

given to the witnesses. What witness has to come to court only under a promise of immunity?

Who does that? Lying people do that.”). The prosecutor pointed out that the immunity was

limited, but never suggested the jury should believe the witnesses because he, personally, did. The

prosecutor merely reiterated the district court’s jury instruction with no mention of perjury:

“Immunity. You heard the Court’s order. Remember what the Court said to these people? He

said, ‘. . . [Y]ou have a Fifth Amendment right. You are compelled to testify, and as a result I’m

going to tell the government that they can’t use your words against you.’ That’s not blanket

immunity.” Id. at 956–57 (Page ID #1450–51). This is a far cry from United States v. Carroll,

11 No. 18-2193, United States v. Samuels

26 F.3d 1380 (6th Cir. 1994), in which “the prosecutor blatantly implied that the [witnesses’] plea

agreements ensured that the witnesses were truthful” and “placed the prestige of the government,

and even of the court, behind the credibility of the [witnesses], by stating that, if the government

or the judge did not believe that the witnesses were being truthful, the witnesses would be in

jeopardy.” Carroll, 26 F.3d at 1389.

The bolstering claim here is similarly without merit. In Francis, the prosecution asked an

agent fourteen times whether he had corroborated a witness’s information, and only twice in

response did the agent provide details of how the information was corroborated. 170 F.3d at 551.

The remaining twelve times, the agent merely answered in the affirmative, which “would lead a

reasonable juror to believe that the prosecutor was implying a guarantee of truthfulness based on

facts outside the record.” Id. There was no analogous behavior here. The only statement of the

prosecutor to which Samuels points came after the first witness, who asserted her Fifth

Amendment right, was immunized. The district court explained immunity to the jury and

mentioned that use immunity did not protect the witness from perjury charges. R. 121 (Trial Tr.

Vol. II at 237–38) (Page ID #731–32). The prosecutor then stated, “I think the order also says

she’s not protected from a perjury charge.” Id. at 238 (Page ID #732). The district court

responded: “Right. I thought I had said that in describing it. If I didn’t, I meant to.” Id. at 239

(Page ID #733). Samuels argues that this was improper emphasis by the prosecution on the

witness’s perjury liability. That is not the case; rather, the prosecutor’s passing comment clearly

was the result of a failure to hear or register the district court’s mention of perjury and did not draw

improper attention to the witness’s perjury liability.

12 No. 18-2193, United States v. Samuels

Samuels’s final argument is that cases such as Carroll and Francis are inapposite because

they deal with witnesses who had plea agreements rather than immunity. He argues that a witness

who receives a plea agreement has a stronger incentive to lie than one who receives use immunity,

and therefore more emphasis on perjury liability is appropriate than would be in cases such as his,

where the witnesses received no benefit in exchange for their testimony. This argument fails for

at least two reasons. First, Samuels argued throughout the trial that at least some of the witnesses

were receiving a benefit in exchange for their testimony: they had federal charges dropped and

replaced with state charges that resulted in far less jail time. E.g., id. at 151–54 (Page ID #645–

48). Next, the distinction makes no difference. An immunity grant could lead a jury to believe

that a witness is being offered something in exchange for his or her testimony, implying that

witness was more likely to lie. This should not come as a surprise to Samuels, whose trial counsel

made this very argument during closing. As a result, the prosecution is entitled to rebut that

inference in a reasonable, factual manner that avoids vouching or bolstering. Here, the prosecution

said no more than it was entitled to, and Samuels’s claim therefore fails.

D. There Was No Enright Error

Finally, Samuels argues that the district court erred by failing to make Enright findings

regarding “numerous statements made by the Appellant [that] were conditionally admitted.”

Appellant Br. at 57. There were no objections at trial, and so we review this claim for plain error.

United States v. Benson, 591 F.3d 491, 501 (6th Cir. 2010).

The term “Enright findings” refers to United States v. Enright, 579 F.2d 980 (6th Cir.

1978), which established a test for admitting a co-conspirator’s out-of-court statement. Rule

13 No. 18-2193, United States v. Samuels

801(d)(2)(E) of the Federal Rules of Evidence provides that a statement is not hearsay if it is

offered against a party and is the statement of a co-conspirator made “during and in furtherance of

the conspiracy.” If one of the conditions for admission under Rule 801(d)(2)(E) is not yet

supported by evidence—for example, if it is not yet established that the person who made the

statement was a co-conspirator—the court may conditionally admit the statement. FED. R. EVID.

104(b). The district court must at some later point make the Enright finding: “(1) that the

conspiracy existed; (2) that the defendant was a member of the conspiracy; and (3) that the co-

conspirator’s statements were made in furtherance of the conspiracy.” United States v. Wilson,

168 F.3d 916, 920 (6th Cir. 1999).

In this case, at the start of trial, the district court explained its usual process for dealing

with co-conspirator hearsay statements:

[M]y normal practice is to allow what the government thinks is a coconspirator statement, subject, of course, to final Enright findings at the end of the case. So if you want—the defense want[s] to object, that’s fine, if you think a statement comes in, but my response will likely be, you know, I’ll admit it subject to my final determinations on the Enright factors at the end of the proofs.

R. 120 (Trial Tr. Vol. I at 9) (Page ID #503). This was the sole mention of Enright at the trial, as

far as we can discern.4

Samuels is correct that the district court never made Enright findings, but that was not an

error. It never made Enright findings for a simple reason: as far as we can tell, not one co-

4 Samuels does not cite any statements made at trial in his opening brief. Nor does he cite any statements in his reply brief, despite the government having pointed out this failure in its response.

14 No. 18-2193, United States v. Samuels

conspirator hearsay statement was conditionally admitted over defense objection.5 Nor did the

defense mention a failure to make Enright findings at the close of the government’s case. See R.

122 (Trial Tr. Vol. III at 819–21) (Page ID #1313–15) (defense moving for a directed verdict at

the close of government proofs). If there was a co-conspirator hearsay statement admitted at trial

that so blatantly required Enright findings that the failure to do so constituted plain error even in

the absence of all defense objection, we have no way of identifying it. Samuels does not identify

any specific statements as co-conspirator hearsay in either his principal or reply brief. He says

only that “numerous statements . . . were conditionally admitted.” Appellant Br. at 57. Despite

the government pointing out this error in its response brief, Samuels does not identify any specific

statement in his reply brief. Rather, he merely says that the testimony, which he summarized in

his facts section, “included numerous hearsay statements that are only admissible if they are co-

conspirator statements.” Reply Br. at 20. This is plainly deficient. Rule 28(a)(8)(A) of the Federal

Rules of Appellate Procedure requires the argument section of a brief to contain “citations to the

authorities and parts of the record on which the appellant relies.” We therefore find this argument

forfeited. See United States v. Young, 847 F.3d 328, 342 (6th Cir. 2017).

Moreover, Samuels’s claim fails because it appears that he is arguing his statements

required Enright findings in order to be admitted. See Appellant Br. at 57 (“[N]umerous statements

made by the Appellant were conditionally admitted.”). In other words, he is contesting not the

admission of a co-conspirator’s statements, but rather his own. Any such statement would be

5 The defense objected once to a co-conspirator statement as “all in the realm of hearsay.” R. 121 (Trial Tr. Vol. II at 324) (Page ID #818). The district court sustained that objection. Id.

15 No. 18-2193, United States v. Samuels

admissible under Rule 801(d)(2)(A) of the Federal Rules of Evidence, and the existence of a

conspiracy would be immaterial. Therefore this claim fails.

III. CONCLUSION

For the reasons stated above, we AFFIRM the district court’s judgment.