Gun & Drug Convictions Reversed Based on Erroneous Admission of Defendant’s Proffer Statements.

In United States v. Grogan, --- F.4th --- (6th Cir. 2025), the Sixth Circuit reversed the defendant’s convictions for possession with intent to distribute fentanyl, possession of a firearm in furtherance of a drug trafficking crime, and felon in possession of a firearm due to the erroneous admission of various inculpatory statements made by the defendant during a proffer.

Law enforcement suspected that Juan Grogan was involved in a shooting and a kidnapping. When they tried to arrest him, he fled. Agents impounded the car he had been driving and found a gun and fentanyl. He was arrested shortly thereafter and agreed to speak with investigators. He signed a proffer agreement allowing the government to use his statements to cross-examine him if he gave inconsistent testimony at trial.

The case ultimately went to trial and, against the advice of counsel, Mr. Grogan testified. Much of his testimony consisted of arguments about the insufficiency of the government’s evidence. He repeatedly invoked the Fifth Amendment during his cross-examination. Then, over defense objections, the government presented testimony about various inculpatory statements Mr. Grogan made during the proffer.

On appeal, the defense argued that the government could not introduce his proffers at trial because Mr. Grogan did not testify inconsistently or present evidence or arguments that contradicted his proffer. The Sixth Circuit held that Mr. Grogan’s invocation of the Fifth Amendment was not an inconsistent statement as contemplated by the proffer agreement, observing that no inferences can be legitimately drawn from invoking the Fifth Amendment and that “a defendant refusal to testify has no factual content that could contradict a purportedly different factual statement.”

The government argued that, questioning the credibility of government witnesses during his trial testimony, Mr. Grogan contradicted his earlier proffer statements where he admitted having a gun and selling drugs and that the inconsistent proffer statements were therefore admissible under the proffer agreement. The Sixth Circuit held that questioning whether the government can prove that you did something doesn’t amount to a denial that you did it and concluded the admission of all but one of the proffer statements was error.

The error was not harmless because, without Mr. Grogan’s admission that the drugs were his, the government’s evidence of constructive possession was not overwhelming. Mr. Grogan did not have exclusive control of the car where the drugs and gun were found, having lent the car to friends a week earlier. The drugs were not in plain view, and none of the government’s witnesses saw Mr. Grogan in actual possession of the contraband. The government’s emphasis of Mr. Grogan’s drug-ownership confession in its closing argument made it further unlikely that the error was harmless beyond a reasonable doubt.

Exceptional Conduct Not Required for Early Termination of Supervised Release.

 In United States v. Hale, --- F.4th --- (6th Cir. 2025), the Sixth Circuit vacated a denial of early termination of supervised release because the prior Sixth Circuit opinions relied on by the district court incorrectly held that early termination is only warranted upon a showing of exceptionally good behavior. Mr. Hale was on ten years’ supervised release in connection with his conviction for violating the Sex Offender Registration and Notification Act. About four-and-a-half years into his supervised release term, Mr. Hale moved for early termination with no opposition from the government. In support, he offered letters from his state probation officer, therapist, and long-time friend attesting to his compliance. Although the district court praised Mr. Hale for his “positive behavior,” it cited United States v. Atkin, 38 F. App’x 196, 198 (6th Cir. 2002) for the proposition that “[e]arly termination of supervised release is a discretionary decision that is only warranted in cases where the defendant shows changed circumstances – such as exceptionally good behavior,” and held that Mr. Hale’s conduct did not satisfy that high standard.

The Sixth Circuit agreed with Mr. Hale that Atkin and subsequent unpublished decisions misstated the standard set out in 18 U.S.C. § 3583(e)(1), which requires the district court to determine whether early termination “is warranted by the conduct of the defendant released and the interest of justice,” in addition to certain § 3553 factors, and does not require exceptional conduct as a prerequisite to early termination. It thus remanded the case for reconsideration under the proper legal standard.

A Prior Drug Conviction Constitutes a Career Offender Predicate if, Under the Categorical Approach, It Qualified as a “Controlled Substance Offense” at the Time of Conviction.

In United States v. Drake, --- F.4th --- (6th Cir. 2025), the Sixth Circuit reaffirmed its holding from United States v. Clark, 46 F.4th 404 (6th Cir. 2022), that, when determining whether a prior drug conviction constitutes a “controlled substance offense” counting towards a defendant’s designation as a “career offender” under §§ 4B1.1 and 4B1.2 of the Sentencing Guidelines, a court must consult the drug schedules in place at the time of the prior conviction, rather that those in place at the time of the instant federal sentencing.

Clark involved a defendant sentenced for a drug crime as a career offender based on prior Tennessee marijuana convictions. In the time between the prior marijuana convictions and the federal drug offense, Tennessee and the federal government amended their respective drug schedules to narrow the definition of “marijuana” by excluding hemp. The Sixth Circuit held that Mr. Clark was properly sentenced as a “career offender” because hemp was classified as “marijuana” at the time of Mr. Clark’s prior convictions, and that the subsequent change in the law was irrelevant.

Drake involved essentially the same issue. He was sentenced as a “career offender” for possession with intent to distribute fentanyl, cocaine, and methamphetamine and received a 200-month prison term. One of the predicate convictions was an Ohio conviction for marijuana trafficking from 2016. In 2016, Ohio’s definition of “marijuana” included hemp, but that was no longer true at the time of his federal sentencing.

Mr. Drake argued that the Clark opinion had been undermined by the U.S. Supreme Court’s recent decision in Brown v. United States, 602 U.S. 101 (2024). Although that case held that the definition of “serious drug offense” in the Armed Career Criminal Act incorporated the time-of-conviction approach, the Court also observed that changes in law are treated differently under the ACCA than under the Guidelines. In rejecting Mr. Brown’s argument that it should follow the ordinary practice of applying the most up-to-date version of the Guidelines Manual, the Court observed that, while 18 U.S.C. § 3553(a)(4)(A)(ii) requires courts to apply the Guidelines “in effect on the date the defendant is sentenced,” the ACCA contains no similar instruction.

The Sixth Circuit found, however, that Clark continues to apply after Brown because the requirement that courts use the current version of the Guidelines Manual doesn’t answer the question of what the term “controlled substance” in § 4B1.2 of that current manual means. It held that the text and purpose of § 4B1.2 supports a time-of-conviction approach and that the district court correctly treated Mr. Drake as a “career offender.”

 

An above guideline sentence in a revocation proceeding is upheld where it is based on the past conduct of a defendant who has significant mental health issues.  

Mario Adams was charged with being a felon in possession of a firearm. He had a long history of mental health issues and was twice found incompetent to stand trial on the firearm charge. He pleaded guilty to the charge after a third psychiatric evaluation determined he was competent. He was sentenced to 87 months imprisonment and a 36-month term of supervised release. United States v. Adams, --- F.4th --- (6th Cir. 2024). https://www.opn.ca6.uscourts.gov/opinions.pdf/24a0275p-06.pdf 

 Mr. Adams was alleged to have violated supervised release by missing drug tests. The violation report referred to his continuing struggles with mental health and substance abuse and it also noted that he met the criteria for multiple mental health conditions. Further violations resulted in a 4-month placement in a halfway house, but he was removed from it due to his behavior.

 Ongoing violations of supervised release caused the district court to impose a new 90-day stay at the halfway house and a new 30-month term of supervised release. Mr. Adams showed significant improvement at the halfway house but left the facility shortly before the end of the 90 days. Probation officers could not locate him and had no contact with him for about a year. During that time, he was convicted in state court of felony assault and breaking and entering but he was not sentenced to incarceration.

 The district court revoked his supervised release based on the state crimes, leaving the halfway house, and not checking in with probation officers. The guideline range was 8 – 14 months but he was sentenced to the statutory maximum of 24 months. On appeal, Mr. Adams argued that his sentence was procedurally unreasonable because the district court used his mental illness to justify an upward variance.  

 The Sixth Circuit concluded that it did not have to decide the “important questions” Mr. Adams raised about whether an upward variance can be imposed to account for the danger a defendant may pose because of his mental health issues. Slip Op. at 9. The Court found that the sentence could be affirmed based on Mr. Adams’s conduct, leaving the halfway house, absconding from supervision, and committing new offenses especially one that involved violence. Although “some of his conduct may have stemmed, at least in part, from mental illness … a district court may rely on a defendant’s past conduct in determining the appropriate sentence.” Id.

 The Sixth Circuit noted that the district court reviewed Mr. Adam’s past conduct including prior supervised release violations and attempted treatment interventions, and it previously treated his mental health issues as a mitigating factor. As the Sixth Circuit saw it, the district court was not treating Mr. Adams’s mental health issues as an aggravating factor. Instead, the district court concluded that his mental illness could no longer be treated as a mitigating factor because of his recent conduct. Slip Op. at 10. In the Sixth Circuit’s view, the district court believed that a longer sentence was necessary “despite [Mr.] Adams’s mental health, not because of it …” Id. at 11 (emphasis original).

    One other point is worth noting. At the revocation sentencing, the district court made “passing references” to the earlier competency evaluation which explained the multiple diagnoses of Mr. Adams. Slip Op. at 11. Although the Sixth Circuit did not consider those references to be the basis of the sentencing decision, the Court cautioned against “reliance on statements by medical professionals in a competency evaluation as a basis for a sentencing aggravator …” Id. The Court pointed out that “competency reports are generally not meant to assess dangerousness, or any § 3553(a) factor.” Id.

 

 

 

 

 

 

 

 

 

 

 

 

Sixth Circuit considers zero-point offender’s eligibility for a sentence reduction under U.S.S.G. § 4C1.1.

Shefiu Hanson pleaded guilty to wire fraud and conspiracy charges which stemmed from a fraudulent scheme to induce businesses to wire money to accounts that he controlled. The total loss to the thirty victims of the fraud was more than 1.1 million dollars. Mr. Hanson was sentenced to 46 months and subsequently moved for a sentence reduction under 18 U.S.C. § 3582(c)(2). 

Mr. Hanson’s motion was based on Amendment 821, which created U.S.S.G. § 4C1.1(a). The guideline provides for a two-level offense reduction for certain zero-point offenders and applies retroactively to defendants sentenced before Amendment 821 went into effect. See U.S.S.G. § 1B1.10(d). Although Mr. Hanson had no criminal history points, the district court found that he was ineligible for a sentence reduction under § 4C1.1(a)(6) because he caused substantial financial harm to his victims. The ruling was affirmed on appeal. United States v. Hanson, --- F.4th --- ((6th Cir. 2025). https://www.opn.ca6.uscourts.gov/opinions.pdf/25a0003p-06.pdf

Section 4C1.1(b)(3) played a large part in the Sixth Circuit’s analysis. The guideline provides that in determining whether “substantial financial hardship” resulted from the defendant’s “acts or omissions,” the district court “shall consider, among other things, the non-exhaustive list of factors provided in Application Note 4(F) of the Commentary to § 2B1.1.” The Sixth Circuit emphasized that district courts are not limited to considering only the factors in § 2B1.1 n.4(f) when determining whether “substantial financial hardship” is established. In this case a victim impact statement as well as information in the PSR showed that several victims experienced “substantial financial hardship.”

 

 

 

 

Patchy explanation for box in truck justifies search

 The Sixth Circuit reversed the suppression of evidence from a traffic stop today in United States v. Urraca, concluding that “objective facts known to the officers warranted each step of the investigation.”

The traffic stop began as a “regulatory inspection” of a semitrailer.  According to the officer, the driver was “sitting oddly with his back not touching the driver’s seat” and “the trucking company had the worst possible score (99) for a company still allowed to operate.” Then, after stopping the truck, “a driver of another car” told the officer the trailer had been swerving, and the officer found that the driver’s paperwork was in disarray. Officers eventually entered the passenger compartment, where the driver and a codriver started to seem evasive when asked about a bunk and box under it. The driver said the box contained items belonging to the truck’s owner. The officer ordered a drug sniff, which uncovered narcotics.

The Sixth Circuit, unlike the district court, decided that a reasonable officer, apprised of all the facts, would have had a legitimate reason to suspect that the truck contained drugs at the time he ordered the dog sniff.  The court pointed to three aspects of the inspection: (1)  the drivers’ reaction when Fuller asked them about the bunk and the box; (2) “the box itself and the drivers’ explanation for it”; and (3) “the context in which these events occurred, all after [the driver]’s half-truths, apparent lies, and unexplained deviations from standard industry practice.”

An Article III Conundrum? Are There Limits on How Much Authority District Courts Can Delegate to the USPO in Supervising Defendants?

 A grand jury indicted Eric Vaughn for being a felon in possession of a firearm. After he pleaded guilty, the District Court sentenced him to 53 months' imprisonment followed by three years of supervised release.

Vaughn appealed Special Conditions 1 and 2 of his supervised release, claiming both conditions improperly delegated the District Court's Article III powers to the probation officer - the former delegating the authority to determine the frequency of his drug and alcohol testing, and the later giving the probation officer the leeway to decide whether he was to undergo inpatient or outpatient mental-health treatment.  In a published opinion, the Sixth Circuit disagreed. It noted that district courts could leave the implementation of drug and alcohol testing up to probation officers when they impose testing a special - as opposed to a mandatory - condition. Since the District Court imposed testing on Vaughn as a special condition of its supervised release, the Court concluded no Article III violation occurred.

The Court similarly held that the District Court did not err in allowing the probation officer to decide whether Vaughn had to undergo inpatient or outpatient drug treatment. Noting that Vaughn had failed to object to the imposition of this condition, and that there was no binding Sixth Circuit precedent on the issue, the Court held that the District Court did not commit plain error.  

 

Sunlight Does Not Extend to Snitches: Court Holds Plea Agreement Supplements are not Public Documents

In general, the First Amendment guarantees the public access to court proceedings and documents. Does this extend, however, to a defendant's cooperation agreement with the Government? The answer is no according to the Sixth Circuit's recently published opinion in United States v. Kincaide. 

Martavious Kincaide pleaded guilty to three federal firearms offenses in the Western District of Kentucky. Deandre Swain, who was facing murder and wanton endangerment charges before a Kentucky state court, filed a motion to intervene in Kincaide's federal case for the sole purpose of asking the district court to unseal Kincaide's plea agreement supplement. Swain presumably hoped to use the supplement to impeach Kincaide's testimony in the event he testified against him at his trial.

In support of his request, Swain argued that the Western District's general order protecting cooperation agreements was facially unconstitutional for violating the First Amendment. He appealed the district court's subsequent denial of his motion.

The Sixth Circuit subsequently affirmed the district court's decision in published opinion, holding that the First Amendment does not recognize a public right of access to cooperation agreements. Utilizing the "experience and logic" test established by the United States Supreme Court in Press-Enterprise Company v. Superior Court, the Court noted that substantial assistance agreements have a "relatively brief history" without a "consistent national practice...." Thus, the Court held, there was little historical record supporting any claim that the general public traditionally had access to plea agreement supplements.

The Court next noted that plea agreement supplements also failed the "logic" prong of the analysis. Citing data that nearly 600 government cooperators were either harmed or threatened over a three-year period, the Court concluded that granting the public access to such agreements endangered not only government cooperators but also government investigations.

The Court also rejected Swain's argument that United States v. DeJournett, which upheld public access to plea agreements, supported his request, noting that the Court only addressed plea agreements, not their supplements, in that case. In addition, the Court addressed a circuit split with the Ninth Circuit, noting that it found its decision In re Copely Press - holding that cooperation addendums were subject to First Amendment access - was not persuasive. 

This case presents an interesting example of the balance between the First Amendment right guaranteeing public access to government proceedings and the practical considerations facing defendants when they choose to cooperate with the Government. While there is apparently a circuit split, the Sixth Circuit has decided to err on the side of protecting cooperating defendants.

 

Tennessee Conviction for Attempted Second-Degree Murder is a Crime of Violence under the Guidelines

        Tarrence Parham pleaded guilty in federal court to being a felon in possession of a firearm. (18 U.S.C. § 922(g)(1)). The district court overruled his objection to the PSR’s determination that his prior Tennessee conviction for attempted second-degree murder is a “crime of violence” under U.S.S.G. § 4B1.2(a). The ruling was affirmed. United States v. Parham, ---- F4th --- (6th Cir. 2024). https://www.opn.ca6.uscourts.gov/opinions.pdf/24a0237p-06.pdf,

The Sixth Circuit began by examining the Guidelines’ definition of a “crime of violence” and then considering the elements of Tennessee’s second-degree murder and attempt statutes as written at the time of conviction. The Court determined that “the elements of the least culpable form of attempted second-degree murder are: ‘(1) the defendant acted with the intent to unlawfully kill the alleged victim; and (2) the defendant’s conduct constituted a substantial step toward killing the alleged victim.’” Slip Op. at 6. The bottom line is whether the least culpable conduct constituting attempted second-degree murder “necessarily includes as an element the use, attempted use, or threatened use of physical force against another person.” Slip Op. at 7 (emphasis original). 

            The Court’s analysis was buttressed by a Tennessee case (State v. Reeves, 916 S.W.2d 909 (Tenn. 1996)) in which two middle school girls conspired to kill a teacher by poisoning her coffee. The evidence showed that the teacher saw the girls leaning over her desk. Upon being observed, the girls “ran back to their seats.” They left behind a purse containing rat poison next to the teacher’s coffee cup. Slip Op. at 7. The Tennessee Supreme Court upheld a conviction for attempted second-degree murder. It reasoned that the defendant took a “substantial step” toward committing the crime when she and the other girl “possessed material to commit the crime near the scene of the attempted crime.” Id. 

Mr. Parham argued that under United States v. Taylor, 596 U.S. 845 (2022), his attempted crime is not a crime of violence under the Guidelines because “taking a substantial step toward second-degree murder does not necessarily include the use, attempted use, or threatened use of physical force.” Slip Op. at 8. In rejecting that argument, the Sixth Circuit reasoned that possession of materials “capable of killing someone near the scene of the intended crime … along with conduct that makes possession of such materials strongly corroborative of the actor’s overall criminal purpose, communicates the intent to inflict harm, which constitutes the threatened use of force” and “an attempted use of force.” Id. For that reason, attempted second-degree murder is a crime of violence under the Guidelines. 

Mr. Parham also made facial and as-applied challenges to the constitutionality of § 922(g)(1) but those arguments were foreclosed by United States v. Williams, 113 F.4th 637 (6th Cir. 2024). The Sixth Circuit pointed out that the statute is constitutional in “most applications” “so long as each member of that disarmed group has an opportunity to make an individualized showing that he himself is not actually dangerous.” Slip Op. at 10 citing Williams at 657, 663. So, the door is still open to a successful as-applied challenge by a defendant who can show that he or she is not “actually dangerous.”  

The Dreaded Appellate Waiver Strikes Again: Court Holds that a Challenge to an Indictment is Barred By Appellate Waiver

In a surprise to no one, United States Attorneys offices would prefer that defendants waive all of their appellate rights in their plea agreements. That is why they frequently ask for either broad or limited appellate waivers in them. Generally, appellate courts will enforce such provisions according to their terms, with certain exceptions. Those exceptions include where the waiver was not knowing or voluntary or where the appellate challenges the district court's subject matter jurisdiction. The Sixth Circuit recently addressed those exceptions in its published opinion in United States v. Ellis.  

Don Ellis entered into a binding plea agreement to several offenses, including two counts to carrying a firearms during and in relation to a crime of violence in violation of 18 U.S.C. § 924(c). In exchange for the Government's agreement to propose a below-Guidelines sentence of 201 months' imprisonment, Ellis agreed to plead guilty to all six counts of the indictment and to waive his right to appeal his conviction and sentence except in limited circumstances.

During his change-of-plea hearing, the district court went through its plea colloquy with Ellis and explained the rights he would waive by pleading guilty, including his right to appeal his conviction and sentence. It chose not to accept the plea agreement at that time, however, opting to wait until after it reviewed his presentence investigation report. 

Over four months later, Ellis moved to withdraw his plea, arguing he had not understood that the appellate waiver in his plea agreement would bar him from pursuing issues regarding his § 924(c) charges. The district court denied his motion, noting he waited four months after his change-of-plea hearing.

During his sentencing, Ellis renewed his motion to withdraw his guilty plea. In addition, he alleged that count four of the Indictment -- charging a violation of 18 U.S.C. § 924(c) predicated on his underlying bank robbery charge -- did not allege a crime because it "mixed and matched" language of two different crimes encompassed in the statute. The district court rejected both arguments, adopted the parties' plea agreement, and sentenced Ellis to 201 months' imprisonment.

On appeal, Ellis argued the district court erred in denying his motion to withdraw his guilty plea and in denying his challenge to the sufficiency of his indictment. Additionally, he argued the district court constructively amended the indictment by relying on his plea agreement to clarify the § 924(c) charge. In response, the Government moved to dismiss his appeal.

The Court granted the Government's motion, holding that the referenced waiver barred Ellis's appeal. It first rejected his challenge that his plea was not knowing and voluntary, holding that the district court sufficiently explained the plea agreement to him during his change-of-plea hearing. Additionally, it rejected his claim that his lawyer did not spend sufficient time explaining the plea agreement to him.

Ellis also argued that the defects in his § 924(c) charges deprived the district court of subject matter jurisdiction, and, thus, the appellate waiver did not bar his appeal of that issue. Citing the United States Supreme Court's decision in United States v. Cotton, the Court held that defects in Ellis's indictment related to the merits of Ellis's case, and that they did not deprive the district court of subject matter jurisdiction. Ellis thus waived this claim on appeal.

Tread Carefully: Sixth Circuit Upholds Denial of Late-Filed Motion to Dismiss

 In United States v. Burrell, law enforcement received an anonymous tip that Burrell was engaged in drug trafficking. This prompted an investigation lasting approximately four months during which officers, using personal surveillance and GPS tracking information, tracked Burrell to and from several residences. In addition, agents tracked Burrell to a grocery store in Ohio, where he engaged in a suspected drug transaction with Stephanie Harris. Agents stopped Harris shortly after the transaction and found heroin in her possession. She also provided a description to the arresting officers that matched Burrell's description.

Based on their investigation, agents obtained search warrants for three residences they claimed Burrell used to further his drug transactions. Executing the search warrants, officers seized 800 grams of fentanyl, hundreds of prescription pills, three handguns, ammunition, and other drug trafficking evidence. They also arrested Burrell at one of his residences, where, during a post-arrest interview, he indicated he occasionally stayed at another location (Farnham Avenue) and "expressed concern that the DEA would search that residence as well." His concerns were well-founded. The DEA subsequently obtained a warrant for Farnham Avenue, where they discovered 83 grams of cocaine and a hydraulic press used to press drugs into bricks. 

Based on the evidence seized from the four locations, a federal grand jury indicted Burrell for possessing heroin and fentanyl intending to distribute the same, one count of maintaining a drug premises, one count of being a felon in possession of a firearm, and one count of being a felon in possession of ammunition. The district court subsequently denied his motion to suppress the evidence received from the four residences. 

Two weeks prior to his trial, Burrell again moved to suppress the referenced evidence, and he moved to dismiss the counts of his indictment charging him with being a felon-in-possession of firearms and ammunition pursuant to New York State Rifle & Pistol Association Inc. v. Bruen. The district court again denied his motion to suppress, and it denied his motion to dismiss as untimely. Additionally, it denied Burrell's challenge to the indictment on its merits, noting that various courts nationwide had rejected Bruen challenges to § 922(g)(1). A jury ultimately convicted Burrell on all counts.

 In addition to raising several evidentiary issues on appeal, Burrell also challenged the district court's order denying his motions to suppress and dismiss. The Sixth Circuit affirmed, however. 

It first addressed Burrell's appeal from the district court's order denying his motion to suppress and his late-filed motion to dismiss his firearms charges. It first noted that the Sixth Circuit had yet to address the standard of review in such a situation, i.e. where a defendant raises an issue anew that he or she had previously raised in a pretrial motion that the district court denied as untimely. The Court held that it would review any order denying such a motion as untimely for an abuse of discretion. In addition, where the party raises the issue anew on appeal, it held it would treat such claims as forfeited and apply a plain-error standard to the forfeited claims. Applying this analysis, the Court held the district court did not abuse its discretion in denying Burrell's late-filed motion as untimely, and it held the district court did not plainly err in denying his motion to dismiss his firearms charges under Bruen.

The Court also upheld the district court's order denying Burrell's motion to suppress. It found that law enforcement sufficiently corroborated the informant's tip, which prompted their investigation that provided a significant basis for the search warrants. It further found that a sufficient nexus existed between the warrants and three of the four residences at issue. Although it found that the alleged nexus to the fourth location (Fairmont Avenue) was a closer call, it held Burrell did not establish he had standing to contest the search of that residence. Finally, it held that, even if the warrants were invalid, the Leon good faith exception applied. Finding no error, the Court affirmed the district court's order denying his motion to suppress. 

The Court also rejected Burrell's challenges to some of the district court's evidentiary rulings. During his trial, he objected to testimony provided by Zachary Snyder - the lead investigator in his case - in which he repeated out-of-court statements made to him by Renee Slaughterbeck (the previously unidentified tipster) that Burrell had tasked her with delivering drugs to Harris, and that she was afraid to return to him without the money or the drugs. The Court, however, held such statements were non-hearsay since the Government offered them to explain why the DEA decided to stage Harris's traffic stop. Thus, the Court concluded, the statements violated neither the hearsay rule nor the Confrontation Clause.

Burrell next claimed the district court improperly allowed the Government to introduce improper testimony regarding the credibility of a gas station clerk present during the referenced drug transaction involving Harris. The clerk had apparently denied to Snyder that she had purchased drugs from Burrell. Snyder testified on direct examination, however, that he did not believe her, citing her criminal background. On appeal, Burrell argued the Court should reverse for prosecutorial misconduct. The Court disagreed, noting that Snyder, not the prosecutor, offered testimony regarding the clerk's lack of credibility. It also held such evidence was relevant and that it did not violate FRE 608 and 609 because the clerk was not a witness. Finally, it held Snyder did not offer improper opinion testimony in violation of FRE 701.

Among the many issues addressed by the Court in Burrell's appeal, perhaps one should stand out to practitioners: make use of motions to extend pretrial motion deadlines, or, if you do not, make a showing as to why you had to file your motion after the deadline. Otherwise, the district court and the Sixth Circuit may hold you are out of luck.