United States of America v. Pete Nechovski

The Honorable Jon Phipps McCalla, United States Chief District Judge for the W estern District of Tennessee,
*
sitting by designation.
NOT RECOMMENDED FOR PUBLICATION
File Name: 10a0214n.06
No. 08-4640
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff/Appellee,
v.
PETE NECHOVSKI,
Defendant/Appellant.
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ON APPEAL FROM THE UNITED
STATES DISTRICT COURT FOR THE
SOUTHERN DISTRICT OF OHIO
OPINION
Before: BOGGS and GILMAN, Circuit Judges; and McCALLA, Chief District Judge.*
JON P. McCALLA, Chief District Judge. Defendant-appellant Pete Nechovski appeals
the jury verdict finding him guilty of conspiracy to possess with the intent to distribute cocaine in
violation of 21 U.S.C. § 846. Defendant Nechovski appeals the verdict on the basis that there was
insufficient evidence for the jury to find him guilty beyond a reasonable doubt. For the reasons set
forth below, the judgment of the district court is AFFIRMED.
I.
A. Procedural History
On June 7, 2007, a federal grand jury for the Southern District of Ohio returned an indictment
charging Defendant Pete Nechovski (“Defendant”) with conspiracy to possess with intent to
distribute over 500 grams of cocaine in violation of 21 U.S.C. § 846 (“Count One”). Defendant was

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subsequently arrested on June 27, 2007. The indictment was superseded on October 11, 2007. In
addition to Count One, Defendant was charged with being a felon in possession of a firearm in
violation of 18 U.S.C. §§ 922(g)(1) and 924(a)(2) (“Count Two”) and being a felon in possession
of ammunition, also in violation of 18 U.S.C. §§ 922(g)(1) and 924(a)(2) (“Count Three”). On
January 14, 2008, Defendant filed a motion to sever Count One from Counts Two and Three for trial
purposes. The district court granted Defendant’s motion. A jury trial on Count One commenced on
Monday, August 4, 2008. On Thursday, August 7, 2008, the jury returned a verdict of guilty.
B. Factual Background
This case stems from a Drug Enforcement Administration (“DEA”) investigation into the
illegal distribution of narcotics in southeastern Ohio. During the course of the investigation, DEA
Special Agent Matt Heufelder developed a confidential informant (“CI”) who agreed to assist the
DEA and the Columbus Police Department in the purchase of cocaine. (D.E. 99 at 43.) The CI told
Agent Heufelder that he knew a man in Tennessee, identified only as “Brent,” who knew a potential
supplier of cocaine in Ohio. The potential supplier of cocaine was a tattoo artist from Columbus,
Ohio named Arthur Shawn Jarrell. In February 2007, the CI arranged a meeting with Jarrell at a
Waffle House restaurant on the east side of Columbus. Also present at the meeting was undercover
Columbus Police Detective Charles Joyce.
Jarrell arrived to the meeting driving a gray GMC Suburban. At this meeting, Detective
Joyce purchased two ounces of cocaine from Jarrell for $1,500.00. After the transaction was
complete, Detective Joyce inquired into the possibility of purchasing kilogram quantities of cocaine.

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Jarrell told Detective Joyce that “his partner” had access to kilogram quantities of cocaine and that
he could have the cocaine available for delivery within a couple of days if needed.
In March 2007, Jarrell contacted the CI and indicated that he had kilogram quantities of
cocaine for sale. During the conversation, the CI agreed to a purchase a kilogram of cocaine for
$23,500.00. On March 9, 2007, the CI met Jarrell at the same Waffle House as the initial meeting
to complete the transaction. Upon arrival, Jarrell notified the CI that he did not have the cocaine in
his possession because he did not want to bring the cocaine without first receiving the money.
Detective Joyce and another undercover police officer subsequently arrived at the Waffle House with
the money. Detective Joyce, however, informed Jarrell that he would not hand over the money until
he was in possession of the cocaine. At this point, Jarrell informed Detective Joyce that he was
going to visit “his source” of the cocaine and ask whether the source would release the cocaine
without payment in hand. Jarrell indicated that if his source was amenable to this request, the
meeting would reconvene in a nearby Bob Evans restaurant parking lot.
Jarrell left the Waffle House parking lot and was followed by DEA Agent Scott Waugaman
to an apartment complex located at 2526 Burgundy Lane in Columbus. Once Jarrell reached the
entrance to the apartment complex, Agent Waugaman withdrew and maintained surveillance on the
perimeter of the complex. Agent Waugaman radioed DEA Agent Leann Bakr and directed her to
reestablish surveillance of Jarrell within the apartment complex.
By the time Agent Bakr entered the apartment complex, the gray Suburban that Jarrell was
driving was parked in front of the garage door to one of the individual apartments. Agent Bakr
testified that there were at least three apartments, each with a separate garage. The living area of

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each apartment is located directly above the garage; therefore, access to the front door required
climbing a staircase. Since Agent Bakr did not see Jarrell exiting the Suburban nor did she see
which apartment Jarrell entered, she parked her vehicle in a position to see both the gray Suburban
and the front door of the apartment directly above the Suburban. After approximately fifteen
minutes, Agent Bakr observed an individual exit the apartment under surveillance and enter the gray
Suburban. Agent Bakr was unable to identify the individual at this time. Once the gray Suburban
exited the apartment complex, a separate unit picked up surveillance of the gray Suburban while
Agent Bakr maintained her position within the apartment complex.
At some point after Agent Waugaman parked his vehicle outside the apartment complex, he
received radio notification that a different vehicle was leaving the complex. Agent Waugaman
testified that he observed a green mid-sized sedan exit the apartment complex and that he initiated
a tail of the vehicle. Agent Waugaman described the individual driving the green sedan as a white
male with a bald head. According to Agent Waugaman, although it was dark outside, he was able
to see the individual inside the green sedan because his “headlights were shining directly inside the
vehicle.” After Defendant was arrested at his home on June 27, 2007, Agent Waugaman was at the
scene and later testified that Defendant was the driver of the green mid-sized sedan that he observed
leaving the apartment complex on the evening of March 9, 2007.
Agent Waugaman followed the vehicle for only a short period until he was called back to the
apartment complex at 2526 Burgundy Lane. Prior to abandoning the tail on the green sedan, Agent
Waugaman relayed the license plate number of the green sedan to other members of the surveillance
team. While Agent Waugaman maintains that he relayed the license plate number accurately, the

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investigation later revealed that the license plate number relayed by Agent Waugaman did not belong
to a green mid-sized sedan but rather to a white Honda Civic registered to an owner in Cleveland,
Ohio. Agent Waugaman testified that in his experience as a DEA agent, it is not uncommon during
drug surveillance to discover that license plate numbers do not correspond to the vehicles under
surveillance.
While Agents Bakr and Waugaman remained at 2526 Burgundy Lane, a separate unit of the
surveillance team followed the gray Suburban as it exited the apartment complex. DEA agents
followed the gray Suburban from the apartment complex to a Bob Evans restaurant parking lot where
the CI was waiting in a parked vehicle. Agent Heufelder and Sergeant Steve Overholser with the
Columbus Police Department were also in the Bob Evans parking lot maintaining surveillance of the
CI’s vehicle. At approximately 8:00 p.m., the gray Suburban arrived at the Bob Evans parking lot;
Jarrell was driving the vehicle. The CI exited his vehicle and got into the passenger seat of Jarrell’s
gray Suburban. Within minutes, the CI placed a phone call to Agent Heufelder signaling that Jarrell
was in possession of the kilogram of cocaine; the arrest team moved in and Jarrell was arrested
without incident.
Shortly after he was arrested, Jarrell signed a Miranda waiver and began talking to the
authorities. While the authorities were questioning Jarrell, his cell phone began to receive multiple
phone calls from an individual listed in the cell phone’s internal memory as “Pepster.” Jarrell’s cell
phone also received several calls from a different number with the label “Pep.” In fact, Agent
Heufelder testified that Jarrell’s cell phone received at least fourteen phone calls that evening from
the numbers associated with the names “Pep” and “Pepster.” Defendant’s birth name is Pepi

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Nechovski, and Jarrell testified that Defendant was listed in his cell phone under Defendant’s
nicknames “Pep” and “Pepster.” Agent Heufelder and Officer Overholser testified that, based on
their experience in law enforcement, they believed “Pepster” was the supplier of the cocaine because
suppliers of drugs typically want their “money returned fairly quickly.” In an attempt to identify
“Pepster,” Officer Overholser brought up a picture of Defendant on a computer screen located in one
of the Columbus Police Department patrol cruisers. Officer Overholser testified that Jarrell
identified the individual in the picture as the individual calling him at that time.
At one point, Agent Heufelder allowed Jarrell to answer one of the calls from “Pepster.”
Officer Overholser instructed Jarrell to tell the caller that “everything was fine” and that “there were
no problems” in regards to the drug transaction; Jarrell complied with the officer’s instructions. The
conversation between Jarrell and the unknown caller was not recorded. Agent Heufelder, however,
was able to hear the person on the phone and testified that the person speaking to Jarrell had a
European accent. After having the occasion to listen to Defendant’s voice when he was arrested on
June 27, 2007, Agent Heufelder testified at trial that the voice he heard on the phone on the evening
of March 9, 2007 was Defendant’s voice.
The DEA and the Columbus Police Department were able to trace the phone number
associated with the incoming calls from “Pepster” to a cell phone owned by a Steven Elliott Scott,
Jr. Scott Jr.’s father, Steven Elliot Scott, Sr., testified that he had known Defendant since the seventh
grade. Because of his father’s relationship with Defendant, Scott Jr. knew Defendant well and
referred to him as “Uncle Pete.” At trial, Scott Jr. testified that he met Jarrell several times at
Defendant’s house when Jarrell performed tattoo work. Scott Jr. explained that “I always used to

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go to my Uncle Pete’s house and DJ on the DJ equipment.” According to Scott Jr., this led Jarrell
to give him the nickname “Little Pepster.” He claimed that Jarrell must have saved Scott Jr.’s name
in his cell phone under the label “Pepster.”
In response to the Government’s questioning regarding the multiple phone calls Jarrell
received from Scott Jr.’s number on the evening of March 9, 2007, Scott Jr. explained that he made
the multiple phone calls to Jarrell. Scott Jr. testified that all of the phone calls related to a tattoo:
Q.: Now, can you explain to me and to the jury why your phone was in such constant
contact with Shawn Jarrell while he was making a drug deal?
Scott Jr.: Yes sir. I had called Shawn [Jarrell] for a tattoo, right, and he told me to
call him back. So I kept trying to call him back because it was like my dad told me
to call him at first for the tattoo. He told me to call him back, right. I kept calling
and calling, but I didn’t get no answer. . . .
Q.: The question I’m going to ask you now, did you make 15 phone calls to Arthur
Jarrell between 8:18 and 10:00 p.m. right after he was arrested with a kilo of
cocaine?
Scott Jr.: Right, for a tattoo I kept calling him because, I mean, was trying to get this
finished. That’s what I really wanted.
Q.: Okay. That was the most important thing in your life that night, so you called 15
times to get it done?
Scott Jr.: Well, he told me to call him back, so I kept calling him back.

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Scott Jr. denied having any knowledge of the drug deal and denied ever giving his phone to
Defendant.
In addition to the phone calls made to Jarrell’s cell phone on March 9, 2007, phone records
revealed that someone from the number subscribed to Scott Jr. called Jarrell on March 7, 2007
shortly after the CI met with Jarrell. These same records also revealed that Jarrell called this number
on March 8, 2007 shortly after Jarrell spoke with the CI. At one point, Scott Jr. testified that he
made these phone calls to Jarrell in reference to the tattoo. Later at trial, Scott Jr. testified that he
could not explain the phone calls made on March 7 and 8, 2007, possibly because he let his father
use his phone during this period of time.
On the evening on March 9, 2007, approximately forty minutes after the Suburban exited the
Burgundy Lane complex, Agent Bakr observed another individual leave the apartment under
surveillance. Authorities later identified this man as Jimmy Hampton, the tenant and primary
resident of that apartment. Upon leaving the apartment, Hampton was immediately detained and
interviewed by the authorities. Hampton told authorities that he had been friends with Defendant
for approximately six years. Specifically, Hampton testified that he met Defendant through their
mutual interest in disc jockeying and that he talks with Defendant “probably 20 times a day.”
Hampton denied knowing an individual named Shawn Jarrell and in response to being shown a
picture of Jarrell, Hampton stated “I’ve never seen that guy in my life.” After being questioned about
the events that occurred on the evening of March 9, 2007, Hampton told authorities that to his
knowledge, neither Defendant nor Jarrell had been in his apartment that evening and that no drug

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transaction occurred at his apartment. In addition, Hampton consented to a search of his apartment;
no drugs or drug paraphernalia were found.
The kilogram of cocaine seized from Jarrell when he was arrested was submitted to the
Columbus Police Department laboratory for testing. Detective Mark Green with the Columbus
Police Department crime scene search unit discovered a single latent fingerprint from the adhesive
side of a piece of masking tape on the cocaine packaging. A lift of the fingerprint was transferred
to Officer Robert Lawson, a supervisor in the latent fingerprint section at the Columbus Police
Department. After studying the known prints of Defendant, Officer Lawson testified at trial, in
response to a question asking for “scientific certainty,” that the fingerprint on the masking tape
belonged to the Defendant. Officer Lawson also testified that if an individual touched the sticky side
of a piece of tape and the piece of tape was then placed back on the roll, when the tape was pulled
off again, this process could destroy part or all of a fingerprint. Officer Lawson admitted that this
was based purely on his expert opinion and was not based on any research that he had performed.
Michael Sweedo, an expert in the field of fingerprint identification, testified as a defense
witness at trial. Sweedo confirmed Officer Lawson’s testimony that the latent print from the
masking tape and the known prints of Defendant were made by the same individual. Sweedo,
however, also described an experiment that he had conducted with various kinds of adhesive tape.
Sweedo testified that he was able to obtain latent fingerprints up to a year after they had been
deposited on the adhesive side of various kinds of tape. Sweedo admitted that his experiment was
performed in a controlled environment and that it may not “totally reflect real life scenarios.”
Sweedo also admitted that he had not used masking tape in his experiment, which was the type of

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tape on which Defendant’s latent print was found. On cross-examination, Sweedo was asked
whether a fingerprint that was deposited on the adhesive side of a piece of tape would be distorted
if that piece was “put back on to the roll . . . .” Sweedo responded that in his expert opinion, it would
not “distort it sufficiently to be able to not effect an identification. Either the print is identifiable or
it’s not identifiable.”
At Defendant’s trial, Jarrell was the second witness called by the Government. Jarrell stated
that he had known Defendant for multiple years and that he considered Defendant a good friend.
During his testimony, Jarrell stated that he had two numbers for Defendant saved on his phone and
that they were listed under the labels “Pep” and “Pepster.” Jarrell denied ever buying drugs from
or selling drugs to Defendant. When questioned on the source of cocaine that he sold in the two
instant drug transactions, Jarrell testified that he obtained the cocaine “[f]rom a guy I’d met at a bar
out on the east side.” Immediately after making this statement, however, Jarrell testified “I’m sorry
. . . I’ve been lying to you the whole time. I was scared to death, and I didn’t know what to do, and
I can’t sit here in a court of law and lie.” At that point, direct examination of Jarrell ceased and the
jury was excused. Jarrell was not recalled as a witness. After Jarrell was excused as a witness, the
Government presented the following additional witnesses in order: Detective Green, Hampton,
Agent Waugaman, Agent Bakr, Sergeant Overholser, Scott, Sr., Scott, Jr., Officer Lawson, and
Agent Heufelder. The last witness to testify at trial was Michael Sweedo, Defendant’s expert
witness.
On August 7, 2008, the jury found Defendant guilty on Count One of the superseding
indictment: conspiracy to possess with the intent to distribute cocaine in violation of 21 U.S.C. §

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846. On November 25, 2008, Defendant was sentenced to 120 months in prison, the mandatory
minimum sentence. This timely appeal followed.
II.
A. Standard of Review
When reviewing the sufficiency of the evidence to support a criminal conviction, the
“relevant question 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.” Jackson v. Virginia, 443 U.S. 307, 319 (1979). Accordingly, in addressing a
challenge to the sufficiency of the evidence at trial, this court does not weigh the evidence presented,
consider the credibility of witnesses, or substitute the court’s own judgment for that of the jury.
United States v. Abdullah, 162 F.3d 897, 902 (6th Cir. 1998). “Circumstantial evidence alone is
sufficient to sustain a conviction and such evidence need not remove every reasonable hypothesis
except that of guilt.” United States v. Kelley, 461 F.3d 817, 825 (6th Cir. 2006) (citation omitted).
Ultimately, “[a] defendant making such a challenge bears a very heavy burden.” Id.; see also United
States v. Jones, 285 F. App’x 243, 244 (6th Cir. 2008) (noting that a defendant faces “an onerous
standard of review” with respect to a sufficiency-of-the-evidence challenge).
B. Sufficiency-of-the-Evidence Analysis
The sole issue on appeal is whether the government presented sufficient evidence at trial to
sustain Defendant’s conviction. “To sustain a conviction for drug conspiracy under [21 U.S.C. §

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846], the government must prove beyond a reasonable doubt: (1) an agreement to violate the drug
laws; (2) knowledge of and intent to join the conspiracy; and (3) participation in the conspiracy.”
United States v. Gardner, 488 F.3d 700, 710 (6th Cir. 2007). “These elements may be shown by
either direct or circumstantial evidence.” Id.; see also United States v. Crayton, 357 F.3d 560, 573
(6th Cir. 2004) (“Circumstantial evidence may be the ‘sole support’ of a conviction under § 846.”
(citation omitted)). Proof of an express or formal agreement is not required; “[a] tacit or mutual
understanding among the parties is sufficient.” United States v. Forrest, 17 F.3d 916, 918 (6th Cir.
1994). While “mere association with conspirators is not enough,” United States v. Hughes, 505 F.3d
578, 588 (6th Cir. 2007), “once the existence [of] a conspiracy is shown [beyond a reasonable
doubt], the evidence linking an individual to that conspiracy need only be slight,” United States v.
Caver, 470 F.3d 220, 233 (6th Cir. 2006); see also United States v. Betancourt, 838 F.2d 186, 174
(6th Cir. 1988).
Defendant does not dispute that there was ample evidence from which the jury could
conclude beyond a reasonable doubt that two drug offenses occurred during the time period of the
alleged conspiracy. Likewise, Defendant does not dispute that the evidence presented by the
Government at trial was sufficient to show that a conspiracy existed between Jarrell and the man
from Tennessee identified only as “Brent.” Defendant contends, rather, that insufficient evidence
was presented at trial to allow a reasonable juror to find that Defendant joined in the conspiracy.
In support of this contention, Defendant relies on United States v. Saunders, 325 F.2d 840
(6th Cir. 1964). In Saunders, the convictions of the defendant for possession and sale of narcotics
were reversed on the ground that the evidence was insufficient. Id. at 844. The panel in Saunders

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stated: “Evidence that at most establishes no more than a choice of reasonable probabilities cannot
be said to be sufficiently substantial to sustain a criminal conviction on appeal.” Id. at 843. In the
instant case, Defendant argues that reversal is warranted because, based on the evidence presented
at trial, the theory that Defendant is innocent is equally as probable as the theory of guilt.
In Saunders, it was found that there was insufficient evidence to support a conviction
because:
The record [was] completely devoid of any direct testimony that [the defendant] ever
possessed any narcotics or that she ever sold any narcotics . . . nor would the
circumstantial evidence against her present anything more than a choice of
probabilities. None of the identified currency was traced to her. No passage of
anything between [the defendant] and [her coconspirator] was ever observed. No
finger print testimony was presented that might link her with the envelope containing
the heroin.
Id. Defendant’s reliance on Saunders, however, is misplaced. Saunders is factually distinguishable
from the case at bar, and the mere fact that Defendant is able to offer the alternative theory of
innocence does not automatically render the evidence insufficient. See United States v. Degan, 229
F.3d 553, 556 (6th Cir. 2000) (“In considering the inferences that a jury may draw from the evidence,
[this Court] need not exclude every logical hypothesis other than guilt.” (citing United States v.
Johnson, 741 F.2d 854, 856 (6th Cir. 1984)).
In the instant case, the Government presented ample evidence in the form of witness
identification testimony for a jury to infer Defendant’s knowing participation in the drug conspiracy:
(1) DEA Agent Waugaman identified Defendant as the man he saw leaving the apartment complex
located at 2526 Burgundy Lane on the evening of March 9, 2007; (2) DEA Agent Heufelder

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overheard the conversation between Jarrell and “Pepster” on the evening of March 9, 2007 and later
identified “Pepster’s” voice to be that of the Defendant; and (3) Officer Overholser testified that
upon Jarrell’s arrest, Jarrell identified Defendant’s picture as being the person who had just called
him under the name of “Pepster.” Viewing this evidence in the light most favorable to the
prosecution, it was not irrational for the jury to conclude that Defendant played at least some role
in the conspiracy.
Evidence relating to the cell phone number used to call Jarrell on the evening of March 9,
2007 further supports the jury’s conclusion that Defendant was involved in the conspiracy. Jarrell
testified that two numbers were saved in his cell phone that were associated with Defendant: one
saved under the label “Pep” and the other saved under the label “Pepster.” Agent Heufelder and
Officer Overholser testified that Jarrell’s cell phone received approximately fourteen phone calls on
the evening of March 9, 2007 from the numbers saved as “Pep” and “Pepster.” In addition,
Defendant was in possession of multiple cell phones at the time of his arrest, one of which was
registered to a third person.
Defendant maintains that these calls were not made by him, but rather were made by Steve
Scott, Jr. in reference to a tattoo appointment. Agent Heufelder testified that he overheard one
conversation between Jarrell and the unidentified caller and that the substance of the telephone call
related to a drug transaction. Despite the fact that Scott Jr. testified that he made all fourteen phone
calls to Jarrell on the evening of March 9, 2007, he was unable to explain how his phone was used
to make the call regarding the drug transaction or the calls made to Jarrell on March 7th and 8th.

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Defendant also maintains that the evidence presented by the Government does not suffice
because Jarrell identified an unknown “guy [he] met at a bar from the east side” as his cocaine
supplier. Thus, Defendant argues that Jarrell’s testimony precludes a finding that there is sufficient
evidence to connect Defendant to the conspiracy. Although it is undisputed that Jarrell identified
an unknown “guy from the east side” as his supplier, Jarrell also admitted in open court that he had
been lying “the whole time.”
Essentially, Defendant argues that the jury should have believed the testimony of Steve Scott
Jr. and Arthur Shawn Jarrell. Defendant’s argument relates to witness credibility, and at this stage
of review, “all credibility issues are to be resolved in favor of the jury’s verdict.” United States v.
Fekete, 535 F.3d 471, 476 (6th Cir. 2008). Although it was possible for the jury to believe that Scott
Jr. made all fourteen phone calls in reference to a tattoo or that Jarrell’s supplier was actually “some
guy [he] met at a bar from the east side,” it was nonetheless logical for the jury to conclude, based
on the evidence provided by the Government, that Defendant not only made the phone calls to Jarrell
but that Defendant was Jarrell’s supplier. Because the evidence was sufficient for a rational juror
to find guilt beyond a reasonable doubt, this Court will not substitute its own conclusion for that of
the jury. See Abdullah, 162 F.3d at 902.
Moreover, unlike the conviction we reversed in Saunders, the jury’s conclusion that
Defendant was a member of the conspiracy is corroborated by fingerprint evidence. Defendant
concedes that his fingerprint was discovered on the adhesive side of a piece of masking tape affixed
to the package of cocaine. Defendant argues, however, that the fingerprint was deposited on the
piece of tape at some time prior to March 9, 2007, most likely when Defendant was boxing up his

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“D.J.” mix tapes, and that Jarrell used the same roll of tape at a later time to package the kilogram
of cocaine. In support of this argument, Defendant relies on the testimony of expert witness Michael
Sweedo. Sweedo testified that in his controlled experiment, fingerprints could last up to one year
and still be of value for identification purposes. Accordingly, Defendant asserts that the fingerprint
evidence was “too attenuated” to prove beyond a reasonable doubt that Defendant was a member of
the drug conspiracy.
The jury reasonably could have concluded that the fingerprint was deposited on the tape when
Defendant was packaging the cocaine. This is consistent with Officer Lawson’s testimony that a
fingerprint would likely lose its evidentiary value in the event that it was rolled back onto the roll
of tape. Regardless of the alternative theories proposed by Defendant, “the critical point is that the
jury could have drawn different inferences from this evidence, and our mandate is to affirm when
the jury’s choice was a rational one–which it was here.” See United States v. Arnold, 486 F.3d 177,
182 (6th Cir. 2007).
III.
For all of the reasons set forth above, the judgment of the District Court is AFFIRMED.

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