United States of America v. Gilbert Darren Simpson

The Honorable Thomas B. Russell, United States District Judge for the Western District of*
Kentucky, sitting by designation.
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NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
File Name: 07a0316n.06
Filed: May 8, 2007
No. 05-6357
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
GILBERT DARREN SIMPSON,
Defendant-Appellant.
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ON APPEAL FROM THE UNITED
STATES DISTRICT COURT FOR THE
EASTERN DISTRICT OF KENTUCKY
Before: ROGERS and GRIFFIN, Circuit Judges; and RUSSELL, District Judge.*
ROGERS, Circuit Judge. Gilbert Darren Simpson appeals his conviction on charges of
conspiracy to distribute marijuana, distribution of marijuana, and possession with the intent to
distribute OxyContin. First, Simpson alleges that his indictment was the result of vindictive
prosecution and that the district court should have dismissed the indictment or, at least, conducted
an evidentiary hearing on the allegation. Second, Simpson asserts that the district court erred both
by quashing Simpson’s subpoena of an Assistant United States Attorney and by prohibiting questions
based on Simpson’s vindictive prosecution allegation during cross-examination of a witness.

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Finally, Simpson challenges the sufficiency of the evidence supporting all three of the counts on
which he was convicted.
Because Simpson failed to establish that there was a realistic likelihood of vindictiveness,
the district court did not err by denying Simpson’s motion to dismiss the indictment against him or
by denying Simpson’s request for an evidentiary hearing on the vindictiveness allegation. Because
Simpson’s vindictive prosecution claim was not relevant to the issue of guilt or innocence, the
district court was correct to quash the subpoena of an AUSA and to bar questions directly related to
the vindictiveness allegation at trial. Finally, Simpson’s sufficiency of the evidence arguments lack
merit. Accordingly, Simpson’s conviction on all three counts is affirmed.
I.
Under the direction of Kentucky State Police Detective Vince Kersey, a police informant,
Marty Mills, purchased for $20 a bag containing marijuana from Gilbert Darren Simpson at
Simpson’s home on November 14, 2003. An additional informant reported seeing controlled
substances at Simpson’s residence on June 4, 2004. On June 18, 2004, the Kentucky State Police
executed a search warrant on Simpson’s residence and seized 143 OxyContin 40 mg tablets, 8
OxyContin 20 mg tablets, 841 Xanax tablets, and $3,800 in cash. Simpson was arrested on state
drug charges and released from custody after he posted a property bond.
In April 2002, more than two years before his arrest, Simpson had filed a civil action against
Knox County Jailer Preston Smith alleging civil rights violations. Simpson v. Smith, et al., No.

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4:02-cv-00075 (W.D. Ky. Apr. 29, 2003) (transferred to the Eastern District of Kentucky, June 03,
2002, Simpson v. Smith, No. 6:02-cv-298). Preston Smith is the father of Assistant United States
Attorney Stephen Smith. In November 2002, AUSA Smith was present for an interview with Dale
Lewis, a convicted drug dealer who had entered into a cooperation agreement with the United States.
Lewis told Fred Baker, a DEA agent, that Simpson was a “customer” to whom Lewis had sold
methamphetamine. However, Simpson’s name only appears in one notation in Baker’s interview
notes, and there was no further investigation into Simpson’s drug activity based on the 2002
interview with Lewis.
On June 25, 2004, after Simpson’s arrest on state drug charges, the supervising AUSA in the
London office, Martin Hatfield, completed a “Criminal Openings” form to initiate federal
proceedings against Simpson, and assigned the case to AUSA Smith. In July 2004, AUSA Smith
arranged for Detective Kersey to interview Lewis about Simpson’s drug activity. Lewis reported that
he had distributed large quantities of marijuana as well as six to eight ounces of methamphetamine
to Simpson. On July 26, 2004, Simpson was arrested on federal charges pursuant to the filing of a
criminal complaint by a DEA investigator. On July 28, 2004, AUSA Smith appeared on behalf of
the Government at Simpson’s initial appearance and moved that Simpson be detained pending trial.
Two days later, on July 30, 2004, Smith told AUSA West that Smith “had been advised” that
Simpson had filed a civil suit against Smith’s father. With Smith’s agreement, the case was
reassigned to AUSA West. AUSA West represented the Government from that point forward.

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AUSA West presented the charges against Simpson to the federal grand jury. The grand jury
returned a five-count indictment. Count One charged Simpson with conspiracy to distribute 100
kilograms or more of marijuana; Count Two charged Simpson with distributing fifty grams or more
of methamphetamine; Count Three charged Simpson with distribution of less than 250 grams of
marijuana; Count Four charged Simpson with possession with intent to distribute OxyContin; and
Count Five charged Simpson with possession with intent to distribute benzodiazepine.
Prior to the pre-trial conference, Simpson filed a motion asking the court to dismiss the
indictment against him on grounds of vindictive prosecution and requesting an evidentiary hearing
on the allegation. Simpson argued that AUSA Smith had an improper stake in Simpson’s
prosecution because of Simpson’s then ongoing civil action against Smith’s father, and that Smith
acted unreasonably in arranging for Detective Kersey to interview Lewis in connection with
Simpson’s case. The district court denied Simpson’s motion on the grounds that Simpson had not
exercised a protected right upon which a vindictiveness claim could be based and, in the alternative,
that Simpson had presented no evidence of unreasonable conduct in his prosecution.
After the district court denied Simpson’s motion, Simpson’s attorney served subpoenas on
AUSA Smith and a probation officer involved in the Lewis case. The Government asked the district
court to quash the subpoenas and to prohibit discussion of the vindictive prosecution claim at trial.
At a hearing on the Government’s motions, Simpson argued that the subpoenas were needed to
obtain information that was necessary for the effective cross-examination of Lewis. The court found
that the subpoenas were “intended merely for the purposes of harassment” and that all discoverable

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information relevant to the cross-examination of Lewis was available without the subpoenas. The
court therefore granted the Government’s motion to quash the subpoenas. The court also ruled that
any questions regarding Simpson’s pending civil suit against Preston Smith and the allegation of
vindictive prosecution would not be permitted at trial because the vindictiveness allegation was not
relevant to the issue of Simpson’s guilt or innocence. The court noted that the issue of possible bias
on the part of Lewis should be addressed by asking him “directly” about what he hoped to gain in
return for his testimony.
At Simpson’s trial, the Government’s evidence included, in part, testimony from Detective
Kersey, who testified about his investigation and arrest of Simpson; testimony from Marty Mills,
who testified that he purchased $20 of marijuana from Simpson; testimony from Lewis that he had
sold Simpson both marijuana and methamphetamine; and a report and testimony from a chemist for
the Kentucky State Police Crime Laboratory concerning the identity of the controlled substances
seized during the June 18, 2004, search of Simpson’s residence.
At the close of the Government’s case, Simpson moved for a judgment of acquittal, arguing
that the evidence on all five counts was insufficient to support a conviction. The district court denied
the motion, holding that “all five counts should go to the jury for determination.” The jury returned
verdicts of guilty on Counts One, Three, Four, and Five, and not guilty on Count Two. The
Government moved to set aside the jury verdict as to Count Five because the jury instruction (like
the indictment) mistakenly referred to benzodiazepine instead of alprazolam, the pharmaceutical
designation for Xanax. Count Five was dismissed and Simpson was sentenced to 360 months on

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each of Counts One and Four, and 120 months on Count Three, with all terms to run concurrently,
for a total sentence of 360 months.
II.
A. Prosecutorial Vindictiveness
Because Simpson has failed to establish two of the three elements required to create a
realistic likelihood of vindictiveness, the district court did not err by refusing either to dismiss the
indictment against Simpson or to conduct an evidentiary hearing on the vindictiveness allegation.
Evaluation of Simpson’s contentions regarding vindictive prosecution, both that the district
court should have dismissed his indictment and that the court should have conducted an evidentiary
hearing on the claim, require essentially the same analysis. Simpson does not argue that he has proof
of “actual vindictiveness” in this case; rather, he argues that the facts he alleged gave rise to “a
realistic likelihood of vindictiveness.” Therefore, in order to determine whether the district court
should have conducted an evidentiary hearing on the claim, the question is whether Simpson’s
factual allegations support a prima facie claim of vindictiveness. United States v. Adams, 870 F.2d
1140, 1146 (6th Cir. 1989) (“[W]here there has been a prima facie showing of ‘a realistic likelihood
of vindictiveness,’ it is incumbent upon the district court to ‘conduct an evidentiary hearing where
the government’s explanations can be formally presented and tested.’” (dealing with a claim of
selective prosecution) (quoting United States v. Andrews, 633 F.2d 449, 457 (6th Cir. 1980) (en
banc) (vindictive prosecution))).

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The district court also based its ruling on the alternative ground that Simpson “has not1
presented any evidence of unreasonable conduct.” That alternative holding, which we uphold,
suffices for affirmance.
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Because Simpson has not alleged facts that show a realistic likelihood of vindictiveness that
would warrant an evidentiary hearing, it follows that the district court did not err in refusing to
dismiss Simpson’s indictment because of vindictive prosecution. Accordingly, the correctness of
the district court’s refusal to grant a hearing and the court’s refusal to dismiss the indictment against
Simpson may both be established by looking to see whether the facts alleged by Simpson support
each of the elements of the prima facie vindictive prosecution claim.
A prima facie case of vindictive prosecution requires allegations of fact showing “(1)
exercise of a protected right; (2) a prosecutorial stake in the exercise of that right; (3)
unreasonableness of the prosecutor’s conduct; (4) the intent to punish the defendant for exercise of
the protected right.” United States v. Suarez, 263 F.3d 468, 479 (6th Cir. 2001). “Presumably, if
the first three elements are present, this may help establish grounds to believe the fourth is present,
that there is the required ‘realistic likelihood of vindictiveness,’ which the government would have
to rebut.” Id.
1) Exercise of a Protected Right
We assume that Simpson adequately asserted a protected right in filing a civil rights suit. We
do not rely on the district court’s reasoning that “‘the protected right’ the prosecutor is alleged to
have intentionally impeded must be a constitutional right,” and, indeed, the Government does not1

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The Government asserts that there could have been no improper prosecutorial stake here2
because Smith did not know about Simpson’s § 1983 action when Smith referred Detective Kersey
to Lewis. The district court accepted this assertion of fact, and found that, “Upon learning that
[Simpson] had previously initiated a pending civil matter against AUSA Smith’s father, Mr. Smith
recused himself and the matter was reassigned to AUSA Roger West.” If true, this fact would rebut
Simpson’s allegation of a prosecutorial stake even with respect to Smith. However, because the
record does not appear to reveal the evidentiary basis for this finding, we do not rely on it.
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defend this aspect of the district court’s reasoning. While many cases refer to constitutional rights
only when restating the elements of prosecutorial vindictiveness, this court has explicitly recognized
that “a decision to prosecute may not be deliberately based upon the exercise of protected statutory
rights.” United States v. Adams, 870 F.2d 1140, 1145 (6th Cir. 1989). The protected right exercised
in Adams was the criminal defendant’s right to pursue an unrelated civil suit against another
government agency. Therefore, it appears that Simpson’s right to bring a civil action under 42
U.S.C. § 1983 is a protected right, the exercise of which may be the basis of a claim of prosecutorial
vindictiveness.
2) A Prosecutorial Stake in the Exercise of the Protected Right
Because the underlying vindictiveness alleged by Simpson pertains to AUSA Smith
personally and exclusively, and because Smith was not responsible for any critical prosecutorial
decision in this case, the Government has rebutted any presumption of prosecutorial vindictiveness
that might arise from Smith’s stake in Simpson’s prosecution. We assume, for sake of argument,
that Simpson’s civil action against AUSA Smith’s father might constitute an impermissible conflict
with regard to AUSA Smith. However Simpson’s claim still fails this element of the prima facie2

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vindictiveness claim because this conflict is personal and peculiar to Smith. Accordingly, the alleged
conflict affects only those prosecutorial actions undertaken by Smith. The only such action alleged
by Simpson is Smith’s decision to arrange for Detective Kersey to interview Lewis. Even if it is
granted, for the sake of argument, that this action was undertaken for improper motives, the
Government’s decision to prosecute Simpson is not tainted by that motive because all decisions
actually relating to Simpson’s prosecution were made by individuals other than Smith.
This court addressed the effect of the pre-trial recusal of potentially conflicted prosecutors
in Bragan v. Poindexter, 249 F.3d 476 (6th Cir. 2001). Bragan involved a vindictive prosecution
claim that arose from the decision to re-prosecute Bragan, a criminal defendant who had been
released from prison pursuant to a successful habeas corpus challenge to his initial conviction. Id.
at 478. Bragan alleged that the state chose to prosecute him a second time in retaliation for Bragan’s
public criticism of the government’s conduct during his first prosecution. Id. at 479-80. After
reinstating charges against Bragan, the prosecutorial office that had prosecuted Bragan in his first
trial and that had been the target of Bragan’s public criticism was disqualified and a new district
attorney pro tempore was appointed. Id. at 479. This court held that because the prosecutor pro
tempore did not share the original prosecutors’ stake in the case, and because the new prosecutor had
the authority to proceed or not proceed with the prosecution, the presumption of prosecutorial
vindictiveness based on the original prosecutors’ stake in reinstating the charges was rebutted. Id.
at 484-85.

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In this case, it is undisputed that supervising AUSA Hatfield made the initial decision to
prosecute Simpson and that AUSA West approved the indictment and presented the case to the grand
jury. Like the prosecutor pro tempore in Bragan, neither of these prosecutors shared Smith’s alleged
stake in the prosecution. Therefore, even if Smith’s stake in the prosecution were sufficient to
support a presumption of prosecutorial vindictiveness, the Government has successfully rebutted that
presumption.
3) Unreasonableness of the Prosecutor’s Conduct
The district court correctly held that Simpson offered no evidence of unreasonable conduct
to support his vindictiveness claim. Simpson asserts that AUSA Smith’s actions in contacting
Detective Kersey and arranging for Kersey to interview Lewis were unreasonable. To support this
allegation Simpson offers two additional assertions. First, Simpson argues that Smith’s actions were
unreasonable simply because Smith had a conflict of interest. However, this argument appears to
conflate the unreasonableness element of the vindictiveness claim with the prosecutorial stake
element.
Next, Simpson asserts that there was no reasonable basis for Smith to believe that Lewis had
any “relevant information” about Simpson. However, in making this assertion, Simpson discounts
the fact that Lewis had identified Simpson as a “customer” in a interview taken in November 2002,
and that Smith was present for that interview. Smith contacted Detective Kersey about interviewing
Lewis only after state trafficking charges had been brought against Simpson in June 2004. Upon

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learning of the later state charges against Smith, there was nothing unreasonable in suggesting that
Lewis might have had additional information related to those charges. Because Simpson has not
alleged any prosecutorial act that is objectively unreasonable, his vindictiveness claim fails to satisfy
this element of the prima facie claim.
4) Intent to Punish the Defendant for Exercise of the Protected Right
Finally, because Simpson cannot establish each of the first three elements of a prosecutorial
vindictiveness claim, there is no realistic likelihood of vindictiveness that would entitle Simpson to
a rebuttable presumption as to the fourth element and Simpson’s vindictiveness claim fails.
B. Quashing of Subpoena and Limitation of Questioning
The district court did not err either by quashing Simpson’s subpoena of AUSA Smith or by
ruling that questions regarding Simpson’s civil suit against Preston Smith were irrelevant and,
therefore, prohibited at trial. Simpson asserts that by quashing his subpoena of AUSA Smith the
court denied Simpson’s Sixth Amendment right to have compulsory process for obtaining witnesses
in his favor. However, the compulsory process right does not entitle the defendant to present
evidence that is irrelevant. See Taylor v. Illinois, 484 U.S. 400, 410 (1988) (“The accused does not
have an unfettered right to offer testimony that is incompetent, privileged, or otherwise inadmissible
under standard rules of evidence.”). From Simpson’s own argument on appeal, it is evident that
Simpson wished to question Smith about matters relevant to Simpson’s vindictive prosecution claim,
not the ultimate issue of Simpson’s guilt or innocence.

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In United States v. Abboud, 438 F.3d 554 (6th Cir. 2006), this court rejected an argument
very similar to the one that Simpson makes here. In Abboud, the criminal defendants sought to raise
the defense of selective prosecution. Id. at 579. However, in response to a pre-trial motion, the
district court held that the defendants were precluded from presenting evidence of selective
prosecution at trial. Id. at 562. This court upheld the district court’s ruling against the defendants’
Sixth Amendment challenge because “[t]he question of discriminatory prosecution relates not to the
guilt or innocence of [the defendants], but rather addresses itself to a constitutional defect in the
institution of the prosecution.” Id. at 579. There is nothing to distinguish Simpson’s vindictive
prosecution claim from the selective prosecution claim in Abboud in this respect. Because Simpson
sought to question Smith on an issue that was not before the jury, and which had already been
decided by the district court, the court was correct to quash the subpoena.
For the same reason, the district court was correct to prohibit Simpson’s attorney from
exploring his vindictive prosecution theory at trial. Simpson argues that his inability to question
Lewis about the alleged vindictive prosecution denied Simpson the opportunity for effective cross-
examination. This court’s opinion in Abboud is again helpful in illuminating the flaw in Simpson’s
argument. In Abboud, this court observed that the defendants “seem[ed] to conflate the concepts of
witness bias and selective prosecution” and the court explained that “[s]elective prosecution is a
separate and distinct [constitutional] claim.” Id. at 580. The same is true here: Simpson’s claim of
prosecutorial vindictiveness is distinct from any bias that may have been used to impeach Lewis’s
testimony.

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Furthermore, the district court’s decision barring discussion of Simpson’s vindictive
prosecution claim did not prevent Simpson from questioning Lewis about any bias, prejudices, or
ulterior motives. In fact, Simpson’s attorney did question Lewis about his motive for testifying,
asking if Lewis “hop[ed] that [he] might get more time off for [his] testimony” against Simpson.
Simpson’s counsel also attacked Lewis’s credibility by highlighting the fact that Lewis did not
provide detailed information about his transactions with Simpson when Lewis was first interviewed
by Agent Baker in 2002, and only provided these details when interviewed by Detective Kersey in
2004. Accordingly, the record does not support Simpson’s claim that the district court’s ruling
concerning the inadmissibility of evidence relevant to Simpson’s vindictive prosecution theory
prevented Simpson’s counsel from effectively cross-examining Lewis.
C. Sufficiency of the Evidence
Simpson’s arguments that the district court erred by denying his motion for judgment of
acquittal based on the insufficiency of the evidence against him on Counts One, Three, and Four are
without merit. “The relevant question in assessing a challenge to the sufficiency of the evidence 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. This court
will not weigh the evidence presented, consider the credibility of witnesses, or substitute our
judgment for that of the jury.” United States v. Jackson, 470 F.3d 299, 309 (6th Cir. 2006)
(quotation marks and citations omitted).

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Count One of the indictment against Simpson charged him with conspiracy to distribute
marijuana. Simpson challenges the sufficiency of the evidence supporting this charge by attacking
the credibility of the principal witness with respect to this charge, Dale Lewis. Simpson argues that
Lewis’s testimony concerning substantial marijuana sales to Simpson was not credible in light of
Lewis’s failure to mention any such transactions when Lewis was interviewed by Agent Baker two
years earlier. This argument fails because it asks this court to make a determination about the
credibility of Lewis as a witness. See Jackson, 470 F.3d at 309.
Count Three charged Simpson with the sale of marijuana. Simpson notes that the
Government did not introduce the laboratory report showing that the substance was marijuana.
However, this court has recognized that
[t]he identity of a drug may be ascertained by circumstantial evidence . . . . Such
circumstantial evidence may include evidence of the physical appearance of the
substance involved in the transaction . . . , testimony that a high price was paid in
cash for the substance, evidence that transactions involving the substance were
carried on with secrecy or deviousness, and evidence that the substance was called
by the name of the illegal narcotic by the defendant or others in his presence.
United States v. Wright, 16 F.3d 1429, 1439 (6th Cir. 1994) (quoting United States v. Scott, 725 F.2d
43, 45-46 (4th Cir. 1984)). Here, it is clear from the testimony of Marty Mills, the informant who
made the purchase upon which this charge is based, that Mills understood the substance he bought
from Simpson to be marijuana. Additionally, Detective Kersey testified that, after the purchase, he
looked at the bag of marijuana and identified it as marijuana. Based on this evidence, a reasonable
juror could have concluded that the substance involved in the sale was in fact marijuana.

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Simpson also draws the court’s attention to the fact that the chemist’s original lab report3
misidentified the OC 40 pills as OC 80s. The chemist testified that this was the result of a
typographical error. Given that this court will not weigh the evidence presented at trial, it is not clear
what significance Simpson believes this fact to have in this appeal. See Jackson, 470 F.3d at 309.
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Simpson’s challenge to Count Four is similar to his argument with respect to Count Three.
Count Four charged Simpson with possession with intent to distribute OxyContin. Simpson notes
that the alleged OxyContin tablets had different markings: 143 were marked OC 40 while 8 were
marked OC 20. Simpson then notes that the crime lab chemist analyzed only a portion of one type
of tablet out of a total of 151 pills identified as OxyContin. Simpson argues that based on this
limited sampling, and given the existence of placebo pills, the Government did not establish the
identity of the substance in each tablet beyond a reasonable doubt. This argument is unavailing3
because the chemist’s testimony that she was able to identify all the pills as OxyContin based on the
markings on the pills and the scientific test of the one sample was clearly sufficient to support the
inference that all of the tablets marked as OxyContin were in fact that controlled substance.
IV.
For the foregoing reasons, Simpson’s conviction on all three counts is AFFIRMED.

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