United States of America v. CRAIG FOREST (02-3022) and HERMAN E. GARNER, III (02-3064)

*The Honorable David L. Bunning, United States District Judge for
the Eastern District of Kentucky, sitting by designation.
1
RECOMMENDED FOR FULL-TEXT PUBLICATION
Pursuant to Sixth Circuit Rule 206
ELECTRONIC CITATION: 2004 FED App. 0032P (6th Cir.)
File Name: 04a0032p.06
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
_________________
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
CRAIG FOREST (02-3022) and
HERMAN E. GARNER, III
(02-3064),
Defendants-Appellants.
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Nos. 02-3022/3064
Appeal from the United States District Court
for the Northern District of Ohio at Akron.
No. 01-00321—David D. Dowd, Jr., District Judge.
Argued: December 5, 2003
Decided and Filed: January 27, 2004
Before: NORRIS and GILMAN, Circuit Judges;
BUNNING, District Judge.*
2 United States v. Forest et al. Nos. 02-3022/3064
_________________
COUNSEL
ARGUED: Tina Schneider, Portland, Maine, Joseph W.
Gardner, Canfield, Ohio, for Appellants. Samuel A.
Yannucci, ASSISTANT UNITED STATES ATTORNEY,
Akron, Ohio, for Appellee. ON BRIEF: Tina Schneider,
Portland, Maine, Joseph W. Gardner, Canfield, Ohio, for
Appellants. Samuel A. Yannucci, ASSISTANT UNITED
STATES ATTORNEY, Akron, Ohio, for Appellee. Craig
Forest, Lisbon, Ohio, pro se, Herman Eugene Garner, Lisbon,
Ohio, pro se.
_________________
OPINION
_________________
RONALD LEE GILMAN, Circuit Judge. A federal jury
found Craig Forest and Herman E. Garner, III guilty of
conspiring to distribute more than 500 grams of cocaine and
of unlawfully possessing firearms. In addition, Forest was
convicted of possessing with the intent to distribute both
powder cocaine and crack cocaine. Forest was sentenced to
188 months in prison followed by 8 years of supervised
release. Garner was sentenced to 120 months in prison
followed by 8 years of supervised release.
On appeal, Forest and Garner both contend that the
government violated their statutory and constitutional rights
by intercepting cellular phone data that revealed their general
location while they were traveling on public highways.
Forest, moreover, individually argues that government agents
violated his Fourth Amendment right not to be arrested
without probable cause, and that the jury-selection procedures
in the Northern District of Ohio violated his Sixth
Amendment right to a jury drawn from a fair cross-section of
the community. Garner individually contends that the district

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court abused its discretion by refusing to allow him to
introduce an allegedly exculpatory statement by his
codefendant Forest, erred in ruling that the government had
given him adequate notice of its intent to seek a sentence
enhancement based upon his prior felony drug conviction, and
erred at sentencing by finding him responsible for at least two
kilograms of cocaine. For the reasons set forth below, we
AFFIRM the convictions and sentences of both defendants.
I. BACKGROUND
This appeal involves numerous issues that turn on their own
distinct set of facts. A more detailed factual discussion is
therefore included under each heading in Part II below.
Generally, however, Forest and Garner were part of a large
drug trafficking operation in the area of Youngstown/Warren,
Ohio. In March of 2001, agents of the Drug Enforcement
Administration (DEA) obtained court authorization to begin
intercepting the defendants’ cellular phone conversations.
These interceptions culminated with the DEA agents arresting
the defendants on June 1, 2001 at a gas station, along with
two women couriers who had transported cocaine from
California to Ohio. The two women pled guilty to conspiring
to distribute cocaine. Forest and Garner went to trial. On
November 2, 2001, Forest and Garner were found guilty on
the various counts of conspiracy, drug possession, and
firearms possession. Both filed timely notices of appeal.
II. ANALYSIS
A. Title III
The DEA identified Forest and Garner as active cocaine
traffickers in the area of Youngstown/Warren, Ohio. On
March 12, 2001, the DEA obtained district court authorization
to intercept communications over Garner’s cellular phone.
The intercepted conversations, according to the DEA,
demonstrated that Forest and Garner were jointly involved in
drug trafficking. On May 1, 2001, the district court renewed
4 United States v. Forest et al. Nos. 02-3022/3064
the authorization to intercept communications over Garner’s
cellular phone and also authorized the government to do the
same over Forest’s cellular phone. The orders further
required Sprint Spectrum L.P. (Sprint), the defendants’
cellular service provider, to disclose to the government all
subscriber information, toll records, and other information
relevant to the government’s investigation.
Wire communications intercepted by the DEA between
May 8 and May 30 of 2001 indicated that Forest and Garner
were expecting the imminent arrival of a large shipment of
cocaine. DEA agents therefore conducted physical
surveillance of both defendants on May 31, 2001. The agents,
however, were unable to maintain constant visual contact.
In order to reestablish visual contact, a DEA agent dialed
Garner’s cellular phone (without allowing it to ring) several
times that day and used Sprint’s computer data to determine
which cellular transmission towers were being “hit” by
Garner’s phone. This “cell-site data” revealed the general
location of Garner. From this data, DEA agents determined
that Garner had traveled to the Cleveland area and then
returned to the area of Youngstown/Warren.
DEA agents resumed visual surveillance in Warren and
observed the defendants driving in Garner’s car along with
two females. The agents followed the car to the area of
Austintown, Ohio and then again lost visual contact. This
caused a DEA agent to once again activate Garner’s cellular
phone to determine that Garner was back in the area of
Warren. Visual surveillance resumed when DEA agents
spotted Garner’s vehicle at a hotel in Niles, Ohio. The agents,
acting without an arrest warrant, apprehended Forest, Garner,
and the two females at a gas station the following day, June 1,
2001.
Garner contends that the DEA’s use of cell-site data
effectively turned his cellular phone into a tracking device,
violating his rights under both Title III of the Omnibus Crime

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Control and Safe Streets Act of 1968 (Title III), 18 U.S.C.
§§ 2510-2522, and the Fourth Amendment to the United
States Constitution. The cell-site data and resulting evidence,
Garner claims, should therefore have been suppressed.
Forest joins in Garner’s claims under Title III and the
Fourth Amendment. As the government points out, however,
Forest lacks standing to raise these issues. Forest is not an
“aggrieved person” with standing under Title III because the
DEA intercepted cell-site data only from Garner’s cellular
phone. See 18 U.S.C. § 2518(10)(a) (noting that only an
“aggrieved person” may move to suppress illegally
intercepted communication); 18 U.S.C. § 2510(11)
(“‘[A]ggrieved person’ means a person who was a party to
any intercepted . . . electronic communication.”). Forest
simply accompanied the party (Garner) whose cell-site data
was being intercepted.
He also has no standing to assert the constitutional rights of
Garner. Forest may challenge only government conduct that
violated his legitimate expectation of privacy. United States
v. Payner, 447 U.S. 727, 732 (1980) (holding that the
defendant had no legitimate expectation of privacy in
financial documents obtained from a bank official’s
briefcase). Because Forest does not claim any legitimate
expectation of privacy in the cell-site data from Garner’s
cellular phone, he lacks standing to challenge the DEA’s
actions on Fourth Amendment grounds. We therefore will
consider only Garner’s claims under Title III and the Fourth
Amendment.
Title III deals with the interception of three types of
communication: wire, oral, and electronic. The statute
specifically defines each of these types:
(1) “wire communication” means any aural transfer made
in whole or in part through the use of facilities for the
transmission of communications by the aid of wire,
cable, or other like connection between the point of
6 United States v. Forest et al. Nos. 02-3022/3064
origin and the point of reception . . . furnished or
operated by any person engaged in providing or
operating such facilities for the transmission of interstate
or foreign communications or communications affecting
interstate or foreign commerce;
(2) “oral communication” means any oral
communication uttered by a person exhibiting an
expectation that such communication is not subject to
interception under circumstances justifying such
expectation, but such term does not include any
electronic communication; . . .
(12) “electronic communication” means any transfer of
signs, signals, writing, images, sounds, data, or
intelligence of any nature transmitted in whole or in part
by a wire, radio, electromagnetic, photoelectronic or
photooptical system that affects interstate or foreign
commerce, but does not include—
(A) any wire or oral communication; . . .
(C) any communication from a tracking device (as
defined in section 3117 of this title) . . . .
18 U.S.C. § 2510.
The district court concluded that Garner’s cell-site data was
transmitted as part of an electronic communication, rather
than as a wire or oral communication. We review a district
court’s legal conclusions regarding suppression issues de
novo and will sustain its related factual findings unless clearly
erroneous. United States v. Murdock, 63 F.3d 1391, 1393
(6th Cir. 1995). As between the three types of
communication covered by Title III, the district court’s
conclusion strikes us as correct. Cell-site data is not part of
an “aural transfer” or “oral communication.” See 18 U.S.C.
§§ 2510(1) (defining wire communication) and (2) (defining
oral communication). Instead, cell-site data is transmitted
through a “transfer of . . . data,” which arguably falls within

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the definition of electronic communication. See 18 U.S.C.
§ 2510(12).
A strong argument exists, however, that cell-site data is not
a form of communication at all. Communication is defined as
“a verbal or written message,” or “a process by which
information is exchanged between individuals through a
common system of symbols, signs, or behavior.” Merriam-
Webster’s Collegiate Dictionary 233 (10th ed. 1997). Cell-
site data is not a “message,” nor is it “exchanged between
individuals,” but instead is simply data sent from a cellular
phone tower to the cellular provider’s computers. In contrast,
this court has assumed that a phone number transmitted to a
pager constitutes an electronic communication. See United
States v. Meriwether, 917 F.2d 955, 960 (6th Cir. 1990).
Unlike cell-site data, a phone number sent via a pager is a
“message” that is “exchanged between individuals.”
But we do not have to decide this issue. Cell-site data
clearly does not fall within the definitions of wire or oral
communication; the only possible Title III category is
electronic communication. If cell-site data is not an
electronic communication, then Title III does not apply at all
and Garner cannot invoke its suppression remedy. And even
if cell-site data is deemed to fall under the definition of
electronic communication, then suppression is still not an
available remedy, as the next paragraph explains. Thus,
whether or not cell-site data fits the definition, the result is the
same: Title III does not give Garner a suppression remedy.
We will therefore assume without deciding that cell-site data
fits within the definition of electronic communication.
Title III allows “[a]ny aggrieved person” to “move to
suppress the contents of any [illegally intercepted] wire or
oral communication.” 18 U.S.C. § 2518(10)(a) (emphasis
added). The remedies for the illegal interception of an
electronic communication, in contrast, are criminal penalties
and, in some cases, being subjected to a civil suit by the
federal government. 18 U.S.C. § 2511. Title III also
8 United States v. Forest et al. Nos. 02-3022/3064
expressly states that “[t]he remedies and sanctions described
in this chapter with respect to the interception of electronic
communications are the only judicial remedies and sanctions
for nonconstitutional violations of this chapter involving such
communications.” 18 U.S.C. § 2518(10)(c). Suppression,
therefore, is not a permissible statutory remedy under Title III
for the illegal interception of an electronic communication.
See Meriwether, 917 F.2d at 960 (“[Title III] does not provide
an independent statutory remedy of suppression for
interceptions of electronic communications.”).
Garner also contends that the DEA’s use of his cell-site
data effectively turned his cellular phone into a “tracking
device” within the meaning of 18 U.S.C. § 3117(a). This
subsection provides that “[i]f a court is empowered to issue a
warrant or other order for the installation of a mobile tracking
device, such order may authorize the use of that device within
the jurisdiction of the court, and outside that jurisdiction if the
device is installed in that jurisdiction.” Section 3117(b)
defines a “tracking device” as “an electronic or mechanical
device which permits the tracking of the movement of a
person or object.”
We would first note that Garner’s argument that the DEA
used his cell phone as a tracking device undermines his
contention that suppression is appropriate under Title III. The
definition of “electronic communication” in Title III excludes
“any communication from a tracking device (as defined in
section 3117 of this title).” 18 U.S.C. § 2510(12)(C). But
electronic communication is the only type of communication
covered in Title III that even arguably applies to Garner’s
cell-site data. Therefore, if the cell-site data is a
“communication from a tracking device,” as Garner argues,
then a suppression remedy is clearly not authorized by
Title III.
Assuming, moreover, that Garner is correct in his assertion
that his phone was used as a tracking device, at least one
circuit has held that § 3117 does not provide a suppression

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remedy. See United States v. Gbemisola, 225 F.3d 753, 758
(D.C. Cir. 2000), where the court observed that, in contrast to
other statutes governing electronic surveillance, § 3117 “does
not prohibit the use of a tracking device in the absence of
conformity with the section. . . . Nor does it bar the use of
evidence acquired without a section 3117 order.” (Emphasis
in original.) We find Gbemisola to be persuasive and
likewise conclude that § 3117 does not provide a basis for
suppressing Garner’s cell-site data or any other evidence in
the present case.
B. Fourth Amendment
In addition to his statutory contentions, Garner argues that
the cell-site data and all resulting evidence should be
suppressed under the Supreme Court’s Fourth Amendment
exclusionary rule. The Fourth Amendment protects “[t]he
right of the people to be secure in their persons, houses,
papers, and effects, against unreasonable searches and
seizures. . . .” In analyzing any Fourth Amendment issue, the
threshold question is whether there has been either a “search”
or a “seizure.” The Supreme Court has explained that “a
Fourth Amendment search occurs when the government
violates a subjective expectation of privacy that society
recognizes as reasonable.” Kyllo v. United States, 533 U.S.
27, 33 (2001). This court has used slightly different
terminology, referring to a Fourth Amendment search as an
invasion of a “legitimate expectation of privacy.” See United
States v. Meriwether, 917 F.2d 955, 958 (6th Cir. 1990).
In United States v. Knotts, 460 U.S. 276 (1983), the
Supreme Court considered whether the police invaded the
defendants’ legitimate expectation of privacy by monitoring
the signal emitted from a beeper (a radio transmitter) placed
in a container of chemicals by the government. The
defendants had placed the container in a car, and the signal
emitted from the beeper allowed the police to track the
movements of the car along public roads. At one point during
the tracking, the police lost visual contact with the car after
10 United States v. Forest et al. Nos. 02-3022/3064
the driver “began making evasive maneuvers.” Id. at 278.
But the beeper’s signal allowed the police to reestablish
visual contact and eventually locate the container inside a
cabin. The Supreme Court held that the police had not
invaded the defendants’ legitimate expectation of privacy
because “[t]he governmental surveillance conducted by means
of the beeper in this case amounted principally to the
following of an automobile on public streets and
highways. . . . A person travelling in an automobile on public
thoroughfares has no reasonable expectation of privacy in his
movements from one place to another.” Id. at 281.
In the present case, Garner acknowledges that the cell-site
data was used to track his movements only on public
highways. The rationale of Knotts therefore compels the
conclusion that Garner had no legitimate expectation of
privacy in the cell-site data because the DEA agents could
have obtained the same information by following Garner’s
car. See Knotts, 460 U.S. at 281-82 (emphasizing that the
defendants had no legitimate expectation of privacy because
the police could have tracked the defendants’ movements by
driving behind them on the public roads).
Garner, however, contends that the present case is
distinguishable from Knotts because the cell-site data
provided information that the DEA agents could not have
obtained simply by following his car. He points out that the
DEA twice lost visual contact on May 31, 2001 and had to
resort to the cell-site data in order to locate him. But these
facts are nearly identical to the facts in Knotts, where the
police lost visual contact after the suspects engaged in
“evasive maneuvers.” 460 U.S. at 278. The Supreme Court
in Knotts recognized that “the beeper enabled the law
enforcement officials . . . to ascertain the ultimate resting
place of the [chemicals] when they would not have been able
to do so had they relied solely on their naked eyes.” Id. at
285. But the Court held that “[n]othing in the Fourth
Amendment prohibited the police from augmenting the
sensory faculties bestowed upon them at birth with such

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enhancement as science and technology afforded them in this
case.” Id. at 282. This holding defeats Garner’s argument.
Although the DEA agents were not able to maintain visual
contact with Garner’s car at all times, visual observation was
possible by any member of the public. The DEA simply used
the cell-site data to “augment[] the sensory faculties bestowed
upon them at birth,” which is permissible under Knotts.
Garner also attempts to distinguish Knotts by arguing that,
regardless of whether he had a legitimate expectation of
privacy regarding his location, he had a legitimate expectation
of privacy in the cell-site data itself. He points out that in
Knotts the government owned the beeper and therefore the
signal it sent out, as opposed to the present case where the
government had no ownership interest in Garner’s phone or
data. Furthermore, he notes that his contract with Sprint does
not authorize the disclosure of his cell-site data. Garner also
persuasively distinguishes the present case from Smith v.
Maryland, 442 U.S. 735, 745 (1979), where the Supreme
Court held that a defendant had no legitimate expectation of
privacy in the numbers he dialed when using his phone.
Unlike the defendant in Smith, Garner points out that that “he
did not voluntarily convey his cell site data to anyone. In
fact, he did not use his telephone. The agent dialed Garner’s
phone number and the dialing caused Garner’s phone to send
out signals.” (Emphasis in original.)
Although Garner’s argument on this point might have merit
in other contexts, the distinction between the cell-site data and
Garner’s location is not legally significant under the particular
facts of this case. Here, the cell-site data is simply a proxy for
Garner’s visually observable location. But as previously
noted, Garner had no legitimate expectation of privacy in his
movements along public highways. We believe, therefore,
that the Supreme Court’s decision in Knotts is controlling,
and conclude that the DEA agents did not conduct a search
within the meaning of the Fourth Amendment when they
obtained Garner’s cell-site data.
12 United States v. Forest et al. Nos. 02-3022/3064
C. Warrantless arrest
Forest contends that the DEA agents violated his Fourth
Amendment rights by arresting him without probable cause,
and that his post-arrest statements and conduct therefore
should be suppressed as the fruit of an illegal arrest. We
review a district court’s determination of probable cause de
novo and will sustain the findings of fact underlying the
probable-cause determination unless clearly erroneous.
United States v. Fullerton, 187 F.3d 587, 589-90 (6th
Cir.1999).
The Fourth Amendment allows warrantless arrests of a
person in a public place so long as the arresting officer has
probable cause to believe that the person has committed or is
committing a crime. United States v. Watson, 423 U.S. 411,
414-15 (1976). Probable cause means that, at the moment of
the arrest, “the facts and circumstances within [the officer’s]
knowledge and of which [the officer] had reasonably
trustworthy information were sufficient to warrant a prudent
man in believing that the [suspect] had committed or was
committing an offense.” Donovan v. Thames, 105 F.3d 291,
298 (6th Cir. 1997).
At the time they arrested Forest and the others, the DEA
agents were aware that:
(1) Coleman Pless was a major trafficker of cocaine
in the area of Youngstown/Warren, Ohio;
(2) Pless received his cocaine from Acie Cole in
Southern California;
(3) Cole transported his cocaine to Ohio using female
couriers who carried the drugs on board airplanes;
(4) Forest and Pless had daily telephone contact
sometime before the summer of 2000;

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Nos. 02-3022/3064 United States v. Forest et al. 13
(5) Garner was also a trafficker of cocaine in the
Youngstown/Warren area, and had sold cocaine to a DEA
informant;
(6) Forest and Garner had frequent telephone contact
in the fall of 2000;
(7) Forest made telephone calls to a Southern
California area code that were similar to calls made by Pless,
suggesting that Cole was supplying Forest with cocaine;
(8) Forest had supplied Garner with cocaine in the
past;
(9) Phone conversations involving both Forest and
Garner during the last week of May of 2001 suggested that a
shipment of cocaine to Forest was imminent;
(10) On May 31, 2001, Garner had a phone
conversation with a potential drug buyer and told the buyer to
get his money ready;
(11) Later that day, Forest and Garner drove together
to the Cleveland Hopkins airport;
(12) After Forest’s and Garner’s trip to the airport,
they drove to a hotel in Niles, Ohio along with two female
passengers;
(13) Garner left the hotel and was stopped by a police
officer for speeding; the officer used a police dog to sniff the
vehicle; although the dog alerted to the presence of narcotics,
a subsequent search of the car found no drugs;
(14) On June 1, 2001, DEA agents learned that one of
the women staying at the hotel lived in Southern California in
the vicinity of Cole, the drug trafficker who supplied cocaine
to Forest;
14 United States v. Forest et al. Nos. 02-3022/3064
(15) Later that day Forest and Garner purchased a
digital scale from an office supply store;
(16) At 7:51 p.m. on June 1, 2001, Garner had a
phone conversation with Jeffrey Davis, who was attempting
to buy cocaine from Forest and Garner for a third party;
during the conversation Garner told Davis that the cocaine
would be gone if Davis did not purchase it by the next day.
All of this information was known to the DEA when the
agents arrested Forest and the others at a gas station later
during the night of June 1. We find no error in the district
court’s conclusion that this information was sufficient to lead
a prudent person to believe that Forest was in the process of
committing a crime at the time of his arrest. Because the
DEA agents had probable cause to arrest Forest, the district
court properly denied his motion to suppress the evidence
obtained as the result of his warrantless arrest.
D. Jury drawn from a fair cross-section of the community
Court is held at three locations in the Eastern Division of
the Northern District of Ohio: Akron, Cleveland, and
Youngstown. This case was heard in Akron. Criminal cases
are randomly assigned to judges in the district, and the
location of the judge determines the pool from which jurors
are selected. Forest contends on appeal, as he did in the
district court, that he was deprived of his Sixth Amendment
right to a venire drawn from a fair cross-section of the
community because African-Americans are systematically
underrepresented in the pool of potential jurors who serve in
Akron. “Whether a defendant has been denied his right to a
jury selected from a fair cross-section of the community is a
mixed question of law and fact, which we review de novo.”
United States v. Allen, 160 F.3d 1096, 1101 (6th Cir. 1998).
The Sixth Amendment guarantees “the right to a speedy
and public trial, by an impartial jury of the State and district
wherein the crime shall have been committed.” This right to

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Nos. 02-3022/3064 United States v. Forest et al. 15
an impartial jury includes the right to a jury drawn from a
“fair cross section of the community.” Taylor v. Louisiana,
419 U.S. 522, 526 & 530 (1975). As the Supreme Court has
emphasized, however, there is “no requirement that petit
juries actually chosen must mirror the community.” Id. at
538 (emphasis added). “Defendants are not entitled to a jury
of any particular composition, . . . but the jury wheels, pools
of names, panels or venires from which juries are drawn must
not systematically exclude distinctive groups in the
community and thereby fail to be reasonably representative
thereof.” Id. (citations omitted).
In order to establish a prima facie violation of the fair-
cross-section requirement, a criminal defendant must show:
(1) that the group alleged to be excluded is a distinctive
group in the community;
(2) that the representation of this group in venires from
which juries are selected is not fair and reasonable in
relation to the number of such persons in the community;
and
(3) that under-representation is due to a systematic
exclusion of the group in the jury selection process.
Duren v. Missouri, 439 U.S. 357, 364 (1979).
Forest claims that African-Americans are systematically
excluded from Akron juries. The Supreme Court has
recognized that African-Americans are a distinctive group in
the community. Lockhart v. McCree, 476 U.S. 162, 175
(1986) (citing African-Americans as an example of a
distinctive group in the community). Forest can thus
establish the first of the Duren factors.
This brings us to the second Duren factor, focusing on
whether Forest has demonstrated that the representation of
African-Americans on venires is not “fair and reasonable in
16 United States v. Forest et al. Nos. 02-3022/3064
relation to the number of [African-Americans eligible for jury
service] in the community.” In the context of jury selection,
one way to evaluate the fairness of representation is by
calculating “absolute disparity,” which refers to “the
difference between the percentage of a certain population
group eligible for jury duty and the percentage of that group
who actually appear in the venire.” United States v. Greene,
971 F. Supp. 1117, 1128 n.11 (E.D. Mich. 1997).
In the present case, Forest suggests two possible measures
of absolute disparity. The first measure compares the
percentage of African-Americans in the Eastern Division
(13.7 percent) with the percentage who live in the counties
that provide juries for the Akron court (8 percent), which
produces an absolute disparity of 5.7 percent (13.7 - 8 = 5.7).
A second way to measure the absolute disparity is to compare
the percentage of African-Americans in the Eastern Division
(13.7 percent) with the percentage on the venire (6.5 percent),
which demonstrates an absolute disparity of 7.2 percent (13.7
- 6.5 = 7.2).
Neither measure can establish a constitutional violation,
however, because both rely on the total percentage of African-
Americans in the Eastern Division, rather than on the
percentage who are eligible to serve on juries. Cases from
both the Supreme Court and this court demonstrate that, when
measuring absolute disparity, the appropriate comparison is
between the percentage of group members who are eligible
for jury service in the population as a whole and in the jury
pool. See, e.g., Taylor v. Louisiana, 419 U.S. at 524
(comparing the percentage of women eligible for jury service
in the community with the percentage of women in an
average venire); Duren v. Missouri, 439 U.S. at 362-63
(comparing the percentage of adult women in the community
with the percentage of women in an average venire); Ford v.
Seabold, 841 F.2d 677, 683 (6th Cir. 1988) (comparing the
percentage of women 18 years or older in the community with
the percentage of women in the jury pool). In the present
case, Forest has presented no evidence regarding the

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Nos. 02-3022/3064 United States v. Forest et al. 17
percentage of African Americans in the Eastern Division who
are eligible for jury service. His statistics that provide
nothing more than the total African-American population of
the Eastern Division are therefore insufficient to establish a
prima facie case of a Sixth Amendment violation.
E. Admission and use of Forest’s post-arrest statement
After his arrest, Forest provided a written statement to the
DEA. Garner moved the district court, pursuant to Rule
804(b)(3) of the Federal Rules of Evidence, to allow him to
either introduce Forest’s statement into evidence or to use the
statement to cross-examine a DEA agent who testified at trial.
We apply the “abuse of discretion” standard to a district
court’s evidentiary rulings. Trepel v. Roadway Express, Inc.,
194 F.3d 708, 716 (6th Cir.1999).
Rule 804(b)(3) is an exception to the hearsay rule, allowing
the admission of statements that are contrary to the
declarant’s interests at the time they are made. In the context
of confessions, Rule 804(b)(3) allows a defendant to
introduce statements that exculpate the defendant by
inculpating the person who made the statement. United
States v. McCleskey, 228 F.3d 640, 644 (6th Cir. 2000). If
some parts of a statement are self-inculpatory and other parts
are not, a district court may admit only the self-inculpatory
portions. United States v. Price, 134 F.3d 340, 346-47 (6th
Cir. 1998) (holding that the district court should have
redacted the non-self-inculpatory portions of a statement).
Rule 804(b)(3) also states that confessions of a third party
offered to exculpate the defendant are “not admissible unless
corroborating circumstances clearly indicate the
trustworthiness of the statement.”
In the present case, the district court refused to admit
Forest’s statement because “the Forest statement really
contains nothing specific which would serve to exculpate
Garner.” Garner disagrees. He first argues that the statement
demonstrates that he was not capable of delivering a kilogram
18 United States v. Forest et al. Nos. 02-3022/3064
of cocaine to codefendant Jeffrey Davis. But the statement
recites that the couriers delivered three kilograms of cocaine
from California on May 31, 2001. Garner, then, was clearly
capable of delivering more than one kilogram of cocaine by
collaborating with Forest. So this portion of Forest’s
statement is not exculpatory of Garner and therefore not
admissible under Rule 804(b)(3).
Garner also contends that the statement demonstrates that
he was unaware of the purpose of the trip to Cleveland, where
Forest and Garner picked up the female drug couriers from
California, and that there was no agreement between Forest
and Garner to distribute the drugs delivered by the California
women. In his statement, Forest said: “A few days prior to
5/31/01 I told [Garner] that something was going to happen.
On 5/31/01 I told [Garner] I had to go to Cleveland and he
asked me if I was going by myself or if I needed someone to
go with me. I told him I didn’t care. He told me he would
ride. We then went to his car and left for Cleveland to pick
the girls up.” Forest also states that he was the one who
purchased the digital scale, and that he alone weighed and
repackaged the cocaine. In sum, these portions of Forest’s
statement can be viewed as exculpating Garner by implying
that Forest alone (1) knew the purpose of the trip to
Cleveland, (2) was responsible for purchasing the scale, and
(3) weighed and repackaged the cocaine without Garner’s
knowledge. Because these assertions tend to prove that
Garner was not involved in the conspiracy to distribute
cocaine, the threshhold requirement of Rule 804(b)(3) was
satisfied.
This brings us to the question of whether “corroborating
circumstances clearly indicate the trustworthiness of the
statement.” Fed. R. Evid. 804(b)(3). Although Garner
contends that “the statement was corroborated by the
interlocking post arrest statements and the trial testimony of
the California women,” he provides no citations to the record
in support of this argument. The women’s statements and
testimony, moreover, do not corroborate Forest’s statement

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Nos. 02-3022/3064 United States v. Forest et al. 19
because the women were not present (1) for any discussions
between Forest and Garner regarding the trip to Cleveland,
(2) when Forest and Garner purchased the scale at the office
supply store, or (3) when Forest weighed and repackaged the
cocaine. Forest’s statement therefore lacks any
“corroborating circumstances clearly indicating the
trustworthiness of the statement,” especially in light of the
evidence recited in Part II.F. below regarding Garner’s
involvement in the conspiracy. We thus cannot say that the
district court abused its discretion by refusing to allow Garner
to either introduce the statement into evidence or to use it to
cross-examine a DEA agent.
F. Amount of cocaine attributed to Garner for
sentencing purposes
Garner also claims that the district court erred during
sentencing when it found that between 2 and 3.5 kilograms of
cocaine were attributable to Garner’s criminal conduct. He
contends that the district court should have attributed to him
an indeterminate amount of cocaine, which would have
reduced his offense level from 28 to 12.
A district court’s calculation of the amount of drugs
attributed to a defendant must be supported by a
preponderance of the evidence. United States v. Meacham, 27
F.3d 214, 216 (6th Cir. 1994). We review the district court’s
calculation under the “clearly erroneous” standard. United
States v. Walton, 908 F.2d 1289, 1300-01 (6th Cir. 1990).
Pursuant to the United States Sentencing Guidelines, a
defendant is liable for:
(A) all acts or omissions committed, aided, abetted,
counseled, commanded, induced, procured or willfully
caused by the defendant; and
(B) in the case of a jointly undertaken criminal activity
. . . , all reasonably foreseeable acts and omissions of
20 United States v. Forest et al. Nos. 02-3022/3064
others in furtherance of the jointly undertaken criminal
activity . . . .
Sentencing Guidelines § 1B1.3(a)(1). In the present case, the
district court found that “at least 2 kilograms but less than 3.5
kilograms of cocaine is properly attributed to Garner’s
personal and jointly undertaken criminal activity.” The
district court relied on the following evidence in reaching this
conclusion:
(1) Intercepted cell phone conversations revealed that
Garner was involved in drug trafficking along with Forest;
(2) Garner’s conversations demonstrated that he acted
as a broker between Forest and potential customers in one-
kilogram cocaine transactions;
(3) In mid-May of 2001, a DEA informant ordered
two kilograms of cocaine from Garner, who then
communicated the order to Forest;
(4) On May 31, 2001, DEA agents observed Forest
and Garner together for most of the day. Later that day Forest
and Garner drove (in Garner’s car) to pick up the drug
couriers in Cleveland and transport them back to the
Youngstown/Warren area;
(5) The couriers testified that they had brought four
packages to Ohio: two kilogram-sized packages and two
smaller ones;
(6) On June 1, 2001, Garner met with Forest and the
couriers, then accompanied Forest to an office-supply store,
where Forest purchased a digital scale;
(7) At approximately 7:51 p.m. on June 1, 2001,
Garner told Jeffrey Davis that the cocaine would be gone
soon and that any deal would have to be consummated the
next day.

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Nos. 02-3022/3064 United States v. Forest et al. 21
The above evidence, recited by the district court in its
sentencing memorandum, demonstrates that Garner had
previously participated in the distribution of multiple
kilograms of cocaine, that Forest and Garner participated in
a joint effort to distribute two kilograms of cocaine to the
DEA informant, and that they jointly transported three
kilograms of cocaine in Garner’s car on May 31, 2001.
Attributing at least two kilograms of cocaine to Garner for the
purposes of sentencing was therefore not clearly erroneous.
G. Sentence enhancement based on Garner’s prior
conviction
Garner was convicted of conspiring to distribute cocaine, in
violation of 21 U.S.C. §§ 841(a)(1) and 846. A defendant
convicted of violating § 841(a)(1) is subject to a sentence
enhancement for a prior drug conviction if (1) the government
files, before trial or a plea of guilty, an information stating in
writing the prior conviction, and (2) the district court, after
conviction but before sentencing, asks the defendant to admit
or deny the prior conviction and informs the defendant that
any challenge to a prior conviction is waived if not raised
before sentencing. 21 U.S.C. § 851(a)-(b). Any challenge to
the validity of a prior drug conviction must be made by a
written response, 21 U.S.C. § 851(c), but a defendant may
not challenge a conviction that occurred more than five years
before the government files the required information.
21 U.S.C. § 851(e).
Garner contends that his sentence enhancement pursuant to
§ 841(a)(1) must be reversed because the required information
was not filed by the government. The sufficiency of the
government’s filing under 21 U.S.C. § 851(a) presents a
question of law that we review de novo. United States v.
King, 127 F.3d 483, 487 (6th Cir. 1997).
Garner’s indictment contains a “Specification” that
identifies Garner’s prior drug conviction by court, date, and
case number. The Specification also states that “in
22 United States v. Forest et al. Nos. 02-3022/3064
accordance with Title 21, United States Code Section 851, the
United States gives notice that should an adjudication of guilt
be entered against HERMAN GARNER III on Count 1 of the
within indictment, the United States will invoke the
applicable penalty enhancement provisions of Title 21, United
States Code Section 841(b).”
This court has held that, in examining the adequacy of
notice under 21 U.S.C. § 851(a), “the proper inquiry is
whether the government’s information provided the defendant
reasonable notice of [the government’s] intent to rely on a
particular conviction and a meaningful opportunity to be
heard.” King, 127 F.3d at 488-89 (quotations marks omitted).
Courts should interpret Ҥ 851's notice requirements so as to
avoid elevating form over substance.” Id. at 489. In the
present case, the Specification in the indictment provided
Garner with clear notice of the government’s intent to seek a
sentence enhancement based upon a specific prior drug
conviction. Garner also had a meaningful opportunity to deny
the prior conviction by a written response at any time after the
grand jury handed down the indictment in this case on July 5,
2001. Overturning the enhancement because the government
gave notice in a “Specification” included in the indictment
rather than in a separate “information” would accomplish
nothing more than “elevating form over substance.” Id.
Garner next contends that the sentence enhancement is
invalid because the district court failed to satisfy its
obligations under 21 U.S.C. § 851(b) to ask Garner to admit
or deny the prior conviction and to inform him that any
challenge to a prior conviction is waived if not raised before
sentencing. A district court’s failure to conduct a § 851(b)
colloquy, however, is subject to “harmless error” review.
United States v. Hill, 142 F.3d 305, 312-13 (6th Cir. 1998).
In Hill, this court held that the district court’s failure to
conduct a § 851(b) colloquy was harmless because (1) the
defendant failed to challenge his prior convictions in the
district court, as required by 21 U.S.C. § 851(c), and (2) the

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Nos. 02-3022/3064 United States v. Forest et al. 23
prior convictions occurred more than five years before the
government filed the information in that case, so that
21 U.S.C. § 851(e) prevented the defendant from challenging
the validity of the convictions. Id. at 313. The present case
is indistinguishable from Hill. Garner did not object to the
enhancement either at sentencing or when he received the
Presentence Report, which refers to his prior conviction.
Garner’s prior conviction, moreover, occurred on April 5,
1990. This was far more than five years before the jury
handed down the indictment, which included the
Specification, on July 5, 2001. Even if the district had
conducted a § 851(b) colloquy, therefore, Garner could not
have challenged the validity of his prior conviction. See
21 U.S.C. § 851(e). Any error by the district court was thus
harmless.
III. CONCLUSION
For the reasons set forth above, we AFFIRM the
convictions and sentences of both defendants.

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