United States v. Jerlen Horton

• Court: Court of Appeals for the Sixth Circuit
• Decided: June 24, 2026
• Docket: 24-6073
• Status: Unpublished

Opinion

NOT RECOMMENDED FOR PUBLICATION File Name: 26a0273n.06

Nos. 24-6073/25-5006/5007

UNITED STATES COURT OF APPEALS FILED FOR THE SIXTH CIRCUIT Jun 24, 2026 KELLY L. STEPHENS, Clerk ) UNITED STATES OF AMERICA, ) Plaintiff-Appellee, ) ON APPEAL FROM THE ) UNITED STATES DISTRICT v. ) COURT FOR THE WESTERN ) DISTRICT OF KENTUCKY JERLEN HORTON (24-6073) and JACOBY ) SUMMERS (25-5006/5007), ) OPINION Defendants-Appellants. ) )

Before: SUTTON, Chief Judge; McKEAGUE and BUSH, Circuit Judges.

JOHN K. BUSH, Circuit Judge. In these consolidated appeals, we consider a bevy of

challenges that defendants-appellants Jerlen Horton and Chicoby Summers make to their drug-

trafficking and firearms convictions. We conclude that the evidence was sufficient to convict, the

district court was not required to declare a mistrial, the jury instructions were not plainly erroneous,

and any evidentiary errors were harmless. We therefore AFFIRM.

I.

In the summer of 2021, law enforcement began investigating Horton, Summers, Alexis

Stewart, and several other individuals. The officers surveilled two Louisville properties, one of

which was Stewart’s home. As is relevant here, officers collected evidence in two ways.

The first was through walk-through searches of the two properties. The searches revealed

baggies, rubber bands, scales, bags of drugs, needles, a vacuum sealer, and ledgers. Officers also Nos. 24-6073/25-5006/5007, United States v. Horton, et al.

discovered firearms, cell phones, and Stewart’s clothes during the searches. Located in the

clothing were some of the drugs.

The second type of search was through pole-camera surveillance of the two properties. The

pole cameras recorded extensive footage of Horton, Stewart, and Summers entering and exiting

the homes, often with a key. In a handful of these videos, Horton and Summers can be seen with

a firearm. Additionally, several cars can be seen backing into the driveway of the homes and then

quickly leaving. Finally, the pole camera footage depicts Horton throwing drug precursors into a

neighbor’s dumpster.

Presented with this evidence, a grand jury in the Western District of Kentucky indicted

Horton and Summers for (as is relevant to this appeal) possession with intent to distribute narcotics,

conspiracy to commit the same, and possession of a firearm in furtherance of drug trafficking. The

trial was mostly unremarkable, but three moments warrant additional discussion.

First, the clothing was a significant point of contention. Apparel with the words “Victory

Clothing” emblazoned on them were found during the searches, and the jury saw evidence

depicting defendants wearing shirts with “Victory Clothing” written on them. Defendants did not

want the jury to see those images because they believed the clothes could be linked to the Victory

Park Crips (an affiliate of the Crips gang in Louisville’s Victory Park neighborhood), and most of

the clothes were blue (the color associated with the Crips). The district court excluded any

references to gangs at trial under Fed. R. Evid. 404(b) because there was insufficient evidence that

either defendant was a gang member. Nonetheless, evidence related to Victory Park was admitted

but only to show where defendants lived and their potential connection to the drug dens.

Second, despite the exclusion of any gang-related evidence, the jury still heard and saw

two pieces of gang-related evidence. One was a comment from a prosecution witness explaining

2 Nos. 24-6073/25-5006/5007, United States v. Horton, et al.

that he specialized in gang investigations. The other was a brief instance where an unredacted

version of Government’s Exhibit 113 was displayed to the jury. At the very top of the exhibit, in

small print, the document says “Louisville Crips Criminal Enterprise”:

Gov’t’s Exh. 113, proffered at R. 133, Tr., PageID 2585. The district court said it “did not see”

the words “Louisville Crips Criminal Enterprise” when the exhibit was first published to the jury.

R. 133, Tr., PageID 2586.

Defendants twice requested mistrials based on that evidence, but the district court rebuffed

them each time. The district court rejected the first request because the witness accused neither

defendant of being part of a gang. The district court rejected the second request because the

offending evidence “was up for a very brief period of time . . . .” Id. at PageID 2587.

Third, the Government did not prosecute Stewart pursuant to a pretrial diversion

agreement. The diversion agreement said that Stewart “committed an offense against the United

States”—possession with intent to distribute narcotics—and that she would cooperate with the

Government in exchange for not being prosecuted. Horton’s App’x at 0001–02. But when

Horton’s counsel asked about the diversion agreement on cross, Stewart denied committing any

crimes. When Horton tried to admit a copy of the diversion agreement, the district court refused

because the diversion agreement did not include an admission of guilt as to any specific crime.

3 Nos. 24-6073/25-5006/5007, United States v. Horton, et al.

After a week-long trial, the jury found both Horton and Summers guilty on all relevant

counts. Horton was sentenced to a total of 336 months in prison and five years of supervised

release. Summers was sentenced to a total of 300 months in prison and five years of supervised

release. Both men appealed, and we consolidated the appeals.

II.

Horton and Summers raise several challenges to their convictions. We address below

whether (a) the Government sufficiently proved defendants possessed a firearm in furtherance of

drug trafficking, (b) a mistrial was warranted over references to gangs, (c) the jury instructions

were plainly erroneous, and (d) the challenged evidentiary rulings impacted the outcome of the

trial.

A.

To start, we conclude that the Government presented sufficient evidence to convict Horton

and Summers of possessing a firearm in furtherance of drug trafficking under 18 U.S.C. § 924(c).

“We review a challenge to the sufficiency of the evidence in a criminal case de novo.” United

States v. Woods, 14 F.4th 544, 551 (6th Cir. 2021). We view the facts in the light most favorable

to the Government, drawing all reasonable inferences in its favor. See United States v. Gooding,

351 F.3d 738, 740–41 (6th Cir. 2003). We must determine whether “any rational trier of fact could

have found the essential elements of the crime beyond a reasonable doubt.” United States v.

Amawi, 695 F.3d 457, 475 (6th Cir. 2012) (quoting United States v. Humphrey, 279 F.3d 372, 378

(6th Cir. 2002)) (emphasis in original). “Circumstantial evidence alone can defeat a sufficiency

challenge.” Woods, 14 F.4th at 551 (cleaned up).

Congress has imposed enhanced mandatory minimum sentences for defendants who

“possess[] a firearm” “in furtherance of” “any crime of violence or drug trafficking crime . . . .”

4 Nos. 24-6073/25-5006/5007, United States v. Horton, et al.

18 U.S.C. § 924(c)(1)(A). To win a guilty verdict, the Government must prove the defendant

“(1) possessed a firearm, (2) committed a drug-trafficking crime, and (3) possessed the firearm in

furtherance of that crime.” United States v. London, 175 F.4th 805, 820–21 (6th Cir. 2026).

Defendants briefed only the last element, and a defendant preserves challenges to his

conviction on an element-by-element basis, so we will focus our attention on that one.1 See id. at

821. To satisfy that element, the Government must establish “a specific nexus between the gun

found and the crime charged.” Id. More concretely, the Government must prove that the firearm

was “possessed for the purpose of aiding or furthering a drug trafficking crime.” Id. The

Government can do this by, among other things, proving that the defendant “own[ed] a gun to

protect the drugs, the proceeds of drug sales, or the dealer himself.” United States v. Maya, 966

F.3d 493, 500 (6th Cir. 2020) (quoting United States v. Bailey, 882 F.3d 716, 721 (7th Cir. 2018))

(quotation marks omitted).

Defendants possessed their firearms in furtherance of drug trafficking. They were seen

with firearms in their pants pockets and waistbands while at two drug dens. Moreover, defendants

were caught disposing of drug precursors at the same properties where they were caught on video

carrying the guns. This suggests that those properties were important locations for the drug

trafficking conspiracy. Those locations would thus likely be the target of violence from rival

traffickers, and most drug traffickers would not call the police to protect their stash of illegal drugs.

1 In a point heading, Horton says that “the United States did not admit sufficient evidence of guilt against defendant Horton as to several alleged offenses.” Horton’s Appellant’s Br. at 13 (bolding and capitalization altered). But only Count 5 of the Second Superseding Indictment charged Horton with violating § 924(c)(1)(A), and the body of his brief lacks any argument regarding the other charges. Thus, to the extent Horton contests the sufficiency of the evidence on any other counts, we do not consider those arguments because they have not been adequately briefed. See, e.g., United States v. Lopez-Medina, 461 F.3d 724, 748 n.6 (6th Cir. 2006).

5 Nos. 24-6073/25-5006/5007, United States v. Horton, et al.

A rational juror could easily conclude that defendants had firearms on them to protect themselves

at those locations.

In arguing against this outcome, defendants distort the evidence and ignore the standard of

review. Horton, for example, protests that the Government found “scant[] evidence connecting

him to possible drug crimes.” Horton’s Appellant’s Br. at 2 (bolding and capitalization altered).

But that ignores the scales, massive quantities of drugs, and ledgers at two properties Horton

regularly entered with a key. Summers, for his part, says that he never had a firearm “in connection

with drug activity” despite bringing the gun to two drug dens. Summers’s Appellant’s Br. at 33

(bolding and capitalization altered). We struggle to see how Summers can plausibly make that

argument while giving the Government the benefit of all possible inferences from the evidence,

especially given our recognition that carrying a gun for protection while being part of a drug

trafficking conspiracy violates § 924(c). See Maya, 966 F.3d at 500.

We therefore find sufficient evidence to support both defendants’ convictions.

B.

We also reject both defendants’ requests for a mistrial. We review the denial of a mistrial

for an abuse of discretion. United States v. Howard, 621 F.3d 433, 458 (6th Cir. 2010). A district

court abuses its discretion when it “relies on clearly erroneous findings of fact, uses an erroneous

legal standard, or improperly applies the law.” United States v. Elias, 984 F.3d 516, 520 (6th Cir.

2021) (quoting United States v. Flowers, 963 F.3d 492, 497 (6th Cir. 2020)). We may not reverse

without “a definite and firm conviction that the trial court committed a clear error of judgment.”

Flowers, 963 F.3d at 497 (quoting Landrum v. Anderson, 813 F.3d 330, 334 (6th Cir. 2016)).

“[A] mistrial is a drastic remedy that results in additional expense to the judicial system as

well as to all the parties.” United States v. Smith, 44 F.3d 1259, 1268 (4th Cir. 1995). Because a

6 Nos. 24-6073/25-5006/5007, United States v. Horton, et al.

mistrial is such a severe remedy, a defendant seeking one must show that the inappropriate

testimony was “so clearly improper and prejudicial . . . that the harm could not be erased by any

instruction which the court might give.” United States v. Smith, 601 F.3d 530, 538 (6th Cir. 2010)

(quoting United States v. Rudolph, 403 F.2d 805, 806 (6th Cir. 1968)). We are therefore less likely

to require a mistrial when the impugned evidence is framed to “minimize[]” any prejudice to the

defendant, Howard, 621 F.3d at 459, or when the impugned evidence constitutes “only a small

part of the evidence against [the] defendant,” United States v. Forrest, 17 F.3d 916, 920 (6th Cir.

1994) (per curiam). Finally, a defendant is not entitled to a mistrial simply because he successfully

moved to exclude certain evidence. See Smith, 601 F.3d at 538.

The district court did not abuse its discretion in denying the mistrial. To grant such a

remedy would be too drastic a response to the jury seeing two inconsequential pieces of evidence.

One was a passing comment in a direct examination where an officer said that he specialized in

gang investigations to establish his general law enforcement credentials, and the other was a

document where the words “Louisville Crips Criminal Enterprise” were printed on the top of the

document in small font. Neither defendant gives us a basis for disturbing the district court’s factual

finding that nobody saw the second piece of evidence, and the impugned evidence comprises

barely ten words in a week-long, eight-count drug trafficking trial.

We therefore affirm the denial of the motions for a mistrial.

C.

We next reject Summers’s challenge to the district court’s instruction on the applicability

of § 924(c). Summers concedes that he did not preserve his instructional challenge, so we will

review only for plain error. See United States v. Sims, 975 F.2d 1225, 1240 (6th Cir. 1992). A

7 Nos. 24-6073/25-5006/5007, United States v. Horton, et al.

district court does not plainly err unless “binding case law” directly “answers the question

presented . . . .” United States v. Al-Maliki, 787 F.3d 784, 794 (6th Cir. 2015).

Summers argues that the district court was required to issue a specific unanimity instruction

as to the date and time when he carried the firearm in furtherance of drug trafficking. But he does

not point to any binding case law saying as much, and we cannot find any.

Under the Sixth Amendment, a defendant may not be convicted of a crime unless the jury

“unanimously finds that the Government has proved each element” of the offense beyond a

reasonable doubt. Richardson v. United States, 526 U.S. 813, 817 (1999). Thus, “the jury must

unanimously decide that all facts that constitute ‘elements’ of a crime occurred, but it does not

necessarily need to be unanimous” in deciding what those facts were. United States v.

Hendrickson, 822 F.3d 812, 822–23 (6th Cir. 2016). Unsurprisingly, we have never held that the

jury must unanimously agree on the date and time when the defendant possessed the firearm. That

is enough to reject Summers’s objection on plain error review. See Al-Maliki, 787 F.3d at 794.

But the problem for Summers goes one step further. The mere fact that a jury must

unanimously agree on an issue does not mean that the defendant is entitled to a specific unanimity

instruction on that issue. Rather, we generally use a three-part test for determining when a specific

unanimity instruction is warranted, see generally United States v. Miller, 734 F.3d 530, 538 (6th

Cir. 2013), and we have never applied that test as part of a holding to a factual scenario similar to

the one we have here.

Summers relies heavily on United States v. Steele, where we endorsed a district court’s

decision to “task[] the jury with deciding unanimously on one instance of firearm possession in

furtherance of a drug trafficking crime . . . .” 919 F.3d 965, 973 (6th Cir. 2019). This reliance is

misplaced. We never said that doing so was necessary in that case, and we certainly did not say

8 Nos. 24-6073/25-5006/5007, United States v. Horton, et al.

that doing so is necessary in all § 924(c) cases like the one before us. True, Steele contemplated

scenarios where the Richardson principle would be inapplicable; if a jury convicts with wildly

diverging understandings of the “means,” it would “risk[] serious unfairness and lack[] support in

history or tradition.” Id. (quoting Richardson, 526 U.S. at 820). But no such scenario obtained in

Steele, and it does not obtain here, either. So even if Steele’s dicta supported Summers’s argument,

it would be insufficient to establish plain error. See United States v. Whren, 111 F.3d 956, 960–

61 (D.C. Cir. 1997); see also Al-Maliki, 787 F.3d at 794 (“A lack of binding case law that answers

the question presented will also preclude our finding of plain error.”).

We therefore hold that the district court’s jury instructions were not plainly erroneous.

D.

Finally, we reject Horton’s and Summers’s evidentiary challenges because any claimed

error was harmless, and we may not reverse over harmless error. See United States v. Freeman,

730 F.3d 590, 595 (6th Cir. 2013).

We start with Horton. He alleges that he should have been allowed to admit a copy of the

diversion agreement that Stewart signed with the Government to impeach her credibility when she

said that she did not commit any drug offenses. Any error from exclusion of the diversion

agreement was harmless.

The colloquy between Stewart and Horton’s counsel on the diversion agreement takes up

over twenty pages of the trial transcript. During that colloquy, Horton’s counsel had the

opportunity to ask what the agreement said, and he did so at length. Moreover, the jury saw

evidence that Stewart entered and left a drug den, lived at a drug den, and had illegal narcotics in

her clothes. The diversion agreement would have been cumulative of all the other evidence

showing that Stewart committed drug crimes. Moreover, if the jury sincerely believed, in the face

9 Nos. 24-6073/25-5006/5007, United States v. Horton, et al.

of all that evidence, that Stewart had not committed drug offenses, then nothing would have

convinced it otherwise. Because the diversion agreement would have been cumulative evidence,

and because the outcome would not have changed with its admission, any error in excluding the

diversion agreement was harmless. See, e.g., United States v. Agrawal, 97 F.4th 421, 430 (6th

Cir.), cert. denied, 145 S. Ct. 258 (2024).

The same is true with Summers. He alleges that the district court should not have admitted

evidence of him wearing “Victory Park” clothing, arguing that its admission was substantially

more prejudicial than probative. See Fed. R. Evid. 403. But the evidence against Summers was

so overwhelming that excluding the clothing would not have altered the outcome. See, e.g., United

States v. Hardy, 643 F.3d 143, 154 (6th Cir. 2011). After all, Summers was caught on video

entering two drug dens, often with a key and sometimes carrying a gun. A jury could easily have

concluded, based on that evidence alone, that Summers was guilty of all the crimes alleged.

III.

For these reasons, the district court’s judgments are AFFIRMED.