United States v. Presley

349 F. App'x 22
CourtCourt of Appeals for the Sixth Circuit
DecidedOctober 13, 2009
Docket07-1541
StatusUnpublished
Cited by9 cases

This text of 349 F. App'x 22 (United States v. Presley) is published on Counsel Stack Legal Research, covering Court of Appeals for the Sixth Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
United States v. Presley, 349 F. App'x 22 (6th Cir. 2009).

Opinion

OPINION

McKEAGUE, Circuit Judge.

Defendant John David Presley appeals his conviction and sentence for conspiracy to distribute marijuana. He raises several claims of error, only one of which has merit. For the following reasons, we AFFIRM defendant’s conviction but VACATE his sentence and REMAND for the limited purpose of resentencing using the correct Sentencing Guidelines range.

I. BACKGROUND

This case arises out of defendant’s use of his trucking company to transport marijuana. In April 2002, defendant hired Stanley Eason as a truck driver. Eason soon became involved in the transportation of marijuana for defendant. Defendant would arrange for Eason to pick up marijuana in Arizona and Eason would deliver it to defendant’s truck yard in Detroit, Michigan. On April 1, 2002, Missouri authorities stopped Eason’s truck and seized 490 kilograms of marijuana.

In December 2003, defendant asked another of his drivers, Alvin Jackson, to pick up marijuana in Arizona and drive it back to Detroit. On January 4, 2004, Missouri authorities stopped Jackson’s truck and seized 242 kilograms of marijuana. Jackson agreed to cooperate with the police. He attempted to conduct a controlled delivery of the marijuana to defendant’s business in Detroit, which was ultimately unsuccessful.

On July 28, 2004, defendant was indicted on the charge of conspiracy to distribute 100 kilograms or more of marijuana in violation of 21 U.S.C. §§ 841(a)(1), 841(b)(1)(B)(vii), and 846. Eason and Jackson, who had entered into plea agreements with the government, both testified against defendant at his trial. A jury convicted him after a two-day trial on October 24 and 25, 2006. On April 19, 2007, the district judge sentenced defendant to a term of 151 months’ imprisonment. Defendant timely appealed.

II. ANALYSIS

On appeal, defendant raises several challenges to his conviction and sentence. Only one of these arguments — the challenge to the procedural reasonableness of his sentence — has merit and requires remand. We will address each argument in turn.

A. Prosecutorial Misconduct

In his first claim of error, defendant argues that he is entitled to a new trial on the basis of prosecutorial misconduct. We review a claim of prosecutorial misconduct de novo. United States v. Stover, 474 F.3d 904, 914 (6th Cir.2007). Because defendant did not object to the prosecutor’s statements at trial, we will reverse only for plain error. Id.; see also Fed. R. Crim P. 52(b). To establish plain error, a defendant must show the following: (1) that an error occurred in the district court; (2) that the error was plain, that is, obvious or clear; (3) that the error affected defendant’s substantial rights; and (4) that this adverse impact seriously affected the fairness, integrity or public reputation of the judicial proceedings. United States v. Carson, 560 F.3d 566, 574 (6th Cir.2009). “Only in exceptional circumstances in which the error is so plain that the trial judge and prosecutor were derelict in countenancing it will this court reverse a conviction under the plain error standard.” United States v. Emuegbunam, 268 F.3d 377, 406 (6th Cir.2001).

*25 We use a two-step inquiry to determine whether a prosecutor committed misconduct. The first question is “ ‘whether the prosecutor’s conduct and remarks were improper.’ ” United States v. Kuehne, 547 F.3d 667, 687 (6th Cir.2008) (quoting United States v. Carter, 236 F.3d 777, 783 (6th Cir.2001)). If so, the next question is “whether the improprieties were flagrant such that a reversal is warranted.” Id.

Here, defendant argues that the prosecutor improperly vouched for the credibility of Eason and Jackson, both of whom testified as key witnesses for the government. “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. Francis, 170 F.3d 546, 551 (6th Cir.1999). It takes the form of either “blunt comments” or “comments that imply that the prosecutor has special knowledge of facts not in front of the jury or of the credibility and truthfulness of witnesses and their testimony.” Id.

Defendant first claims that the prosecutor improperly elicited testimony from Ea-son and Jackson that their plea agreements required them to testify truthfully. Specifically, the following exchange occurred between Eason and the prosecutor:

Q: Now, you are testifying pursuant to an agreement you made with myself and other members of the U.S. Government; is that also correct?
A: Yes.
Q: And what is that agreement?
A: To tell the truth.
Q: And what did you get in return?
A: I just got a lighter sentence.

Similarly, the following exchange occurred between the prosecutor and Jackson:

Q: Mr. Jackson, you are giving testimony today pursuant to an agreement you made with the U.S. Government; is that correct?
A: Yes, sir.
Q: And what is that agreement?
A: That I won’t be charged if I give truthful testimony.

Defendant also argues that the prosecutor improperly vouched for Eason and Jackson in his opening and closing statements. Defendant notes that the district court told the jury during voir dire that the use of agreements to testify in exchange for a potentially lesser sentence is “a very common practice,” and that the prosecutor referred to this statement in his opening statement. In addition, the prosecutor specifically referred to the agreements with Eason and Jackson in his closing argument. He noted the following with respect to Eason:

[Eason] indicated he knew he was testifying pursuant to an agreement he had concerning his sentence, that he was facing somewhere between a hundred and twenty-one and a hundred and fifty-one months, and as a result of his cooperation he was actually sentenced to fifty-four months.

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Cite This Page — Counsel Stack

Bluebook (online)
349 F. App'x 22, Counsel Stack Legal Research, https://law.counselstack.com/opinion/united-states-v-presley-ca6-2009.