United States of America v. Anthony Dejohn (02-3158); Christopher Harb (02-3175)

1
RECOMMENDED FOR FULL-TEXT PUBLICATION
Pursuant to Sixth Circuit Rule 206
ELECTRONIC CITATION: 2004 FED App. 0137P (6th Cir.)
File Name: 04a0137p.06
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
_________________
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
ANTHONY DEJOHN (02-3158);
CHRISTOPHER HARB
(02-3175),
Defendants-Appellants.
X
-
-
-
->
,
-
-
-
-
-
N
Nos. 02-3158/3175
Appeal from the United States District Court
for the Northern District of Ohio at Cleveland.
No. 00-00516—Kathleen McDonald O’Malley, District
Judge.
Argued: January 28, 2004
Decided and Filed: May 13, 2004
Before: MARTIN, RYAN, and MOORE, Circuit Judges.
_________________
COUNSEL
ARGUED: Michael J. Benza, Cleveland, Ohio, Thomas J.
Broschak, ULMER & BERNE, Columbus, Ohio, for
Appellants. Ronald B. Bakeman, ASSISTANT UNITED
2 United States v. DeJohn, et al. Nos. 02-3158/3175
STATES ATTORNEY, Cleveland, Ohio, for Appellee.
ON BRIEF: Michael J. Benza, Cleveland, Ohio, Thomas J.
Broschak, ULMER & BERNE, Columbus, Ohio, for
Appellants. Ronald B. Bakeman, ASSISTANT UNITED
STATES ATTORNEY, Cleveland, Ohio, for Appellee.
MOORE, J., delivered the opinion of the court, in which
MARTIN, J., joined. RYAN, J. (p. 24), delivered a separate
concurring opinion.
_________________
OPINION
_________________
KAREN NELSON MOORE, Circuit Judge. Codefendants
Christopher Harb and Anthony DeJohn appeal from their
convictions and sentences for conspiracy to distribute
cocaine, conspiracy to distribute marijuana, and unlawful use
of a communication facility (Harb); and conspiracy to
distribute marijuana, possession of marijuana with intent to
distribute, unlawful use of a communication facility, and
being a felon in possession of a firearm (DeJohn). They each
raise numerous assignments of error, of which the two most
novel and meritorious are a shared claim of Speedy Trial Act
error and DeJohn’s argument that a specific unanimity
instruction was required for his felon-in-possession charge,
which involved two different firearms. Nonetheless, because
we ascertain no violation of the Speedy Trial Act and because
we conclude that the specific firearm possessed by a felon is
not an element of the crime defined by 18 U.S.C. § 922(g)(1)
requiring jury unanimity, we AFFIRM the convictions and
sentences of Harb and DeJohn.
I. BACKGROUND
In early 2000, the FBI began an investigation into a cocaine
ring in Cleveland’s eastern suburbs. After attempts to use
undercover agents to pursue suppliers further up the

-- 1 of 12 --

Nos. 02-3158/3175 United States v. DeJohn, et al. 3
1Harb was also implicated in and charged with crimes relating to
extortion, for which he wa s acquitted, which had no effect on his
sentencing, and which, for the sake of simplicity, we have omitted from
our reco unting of the facts.
distribution chain were unsuccessful, a wiretap investigation
was pursued which culminated in a tap being placed on
Alfred Laudato’s (“Laudato”) cellular telephone. Laudato
was supplying numerous customers in the Cleveland area
with cocaine and also with marijuana. Harb sold marijuana
to and purchased cocaine from Laudato, while DeJohn
purchased marijuana from Laudato. In June 2000, the FBI
terminated the investigation, making numerous arrests and
searching both Harb’s and DeJohn’s residences. At DeJohn’s
residence, drug distribution paraphernalia (plastic bags and a
three-beam scale stored together) and eight separate bags of
marijuana were found together in a duffel bag. Additionally,
two firearms were found, a small handgun along with
ammunition in a drawer underneath the couch in the family
room, and a Remington 870 shotgun in a bedroom closet
upstairs. At Harb’s residence, numerous firearms were
discovered, totaling three pistols and four rifles, as well as a
bag of marijuana. Harb and DeJohn were both indicted with
twenty-six other individuals on June 13, 2000, and then
arrested as part of the raids on June 14, 2000.1 Two
superseding indictments were filed, one on July 11, 2000,
with additional codefendants, and a second superseding
indictment on October 3, 2000, which named far fewer
conspirators as so many had already pleaded guilty. Harb and
DeJohn, however, ultimately refused to plead guilty, and were
eventually the only defendants left. The government’s
motion to dismiss the indictment against them without
prejudice was granted on November 13, 2000, and on
December 28, 2000, they were reindicted; this later
indictment was the first containing the firearms charges
against DeJohn.
4 United States v. DeJohn, et al. Nos. 02-3158/3175
2Although the Presentence Investigation Reports (“PSRs”) for Harb
and DeJohn have not been submitted as part of the Joint Appendix, the
district court indicated that calculations were initially made using an
unspecified year’s guidelines, presumably 2000, and rechecked with the
2001 guidelines, which revealed no change.
DeJohn and Harb proceeded to trial on the 34-count
indictment on May 7, 2001. At trial, the government’s chief
witness was Laudato, who had agreed to testify against Harb
and DeJohn as part of a plea bargain with the government.
The government introduced as well numerous tapes and
transcripts obtained through the wiretap on Laudato’s phone.
Most of the conversations involving drug purchases were in
code or otherwise opaque; Laudato “decoded” the
conversations for the jury. Both Harb and DeJohn testified in
their own defenses. Harb claimed to have purchased cocaine
only for personal use in small amounts from Laudato and
asserted that his only involvement with marijuana distribution
was storing marijuana for Laudato. DeJohn claimed to have
purchased marijuana from Laudato only for personal use,
despite phone calls entered into evidence, which DeJohn
admitted referred to marijuana purchases, in which DeJohn
describes “the guys” who want marijuana from him. Joint
Appendix (“J.A.”) at 628-30. DeJohn also presented
testimony from relatives and friends in which they claimed
ownership of the two guns found in DeJohn’s residence.
Each defendant was acquitted of certain charges by the jury,
as well as convicted of conspiracy to distribute cocaine,
conspiracy to distribute marijuana, and unlawful use of a
communication facility (Harb); and conspiracy to distribute
marijuana, possession of marijuana with intent to distribute,
unlawful use of a communication facility, and being a felon
in possession of a firearm (DeJohn).
At sentencing, Harb’s total adjusted offense level was
twenty-eight.2 The district court found his base offense level
to be twenty-six based on drug quantities, and applied a two-
level upward adjustment for obstruction of justice based on

-- 2 of 12 --

Nos. 02-3158/3175 United States v. DeJohn, et al. 5
Harb’s perjury at trial. The district court declined to make a
downward adjustment for a mitigating role, noting that it had
previously limited the government’s case to the narrow
conspiracies ultimately charged to the defendants. The
district court denied an acceptance of responsibility
adjustment and a downward departure based on family
responsibilities. Harb was sentenced to seventy-eight
months’ imprisonment.
DeJohn’s base offense level for the gun charges was
assessed at twenty-four under U.S.S.G. § 2K2.1(a)(2), as he
had two prior felony convictions for assault, a crime of
violence. Because the firearms charge and the drug charges
were unrelated to one another, he received a one-level
increase in his offense level under § 3D1.4 for the drug
charges. He also received a two-level enhancement for
obstruction of justice based on his perjury at trial, making his
total adjusted offense level twenty-seven. His criminal
history was assessed at Category VI under § 4B1.1 for his two
prior assault convictions, which increased both his offense
level by ten and his Criminal History Category by three. The
district court granted a downward departure because of this
dual effect of his two prior assault convictions. The departure
was three Criminal History Categories, down to his “original”
Criminal History Category of III, i.e., without the Career
Offender increase under § 4B1.1. This resulted in a
sentencing range of 87 to 108 months; DeJohn was sentenced
to 91 months’ imprisonment. This timely appeal followed.
II. ANALYSIS
A. Speedy Trial Act
“We review the District Court's legal interpretation of the
[Speedy Trial Act] de novo and the factual findings
supporting its ruling for clear error.” United States v. O'Dell,
154 F.3d 358, 360 (6th Cir. 1998) (citing United States v.
Carroll, 26 F.3d 1380, 1390 (6th Cir. 1994)), cert. denied,
526 U.S. 1029 (1999).
6 United States v. DeJohn, et al. Nos. 02-3158/3175
The Speedy Trial Act (“Act”) provides, “Any . . .
indictment charging an individual with the commission of an
offense shall be filed within thirty days from the date on
which such individual was arrested.” 18 U.S.C. § 3161(b).
The Act contains two main time limits: the limit in § 3161(b)
running from arrest or summons to indictment, and the
seventy-day limit in § 3161(c) running from indictment to
trial. The purpose of the former, the thirty-day limit at issue
in this case, is to insure that individuals will not languish in
jail or on bond without being formally indicted on particular
charges. In this case, DeJohn and Harb were originally
indicted before their arrest, and remained under indictment
until November 13, 2000, when the indictment then in force
against them was dismissed. No criminal complaint had been
filed, and the terms and conditions for release on bail were
terminated, leaving DeJohn and Harb without any restriction
on their liberty after November 13, 2000, and before their
reindictment. DeJohn and Harb were reindicted on
December 28, 2000, forty-five countable days after the
dismissal of the prior indictment. Their argument that the Act
was violated because their reindictment happened too long
after the dismissal of the previous indictment is based largely
on United States v. Berry, 90 F.3d 148 (6th Cir.), cert. denied,
519 U.S. 999 (1996), in which this court, in dealing with an
analogous situation where only one day passed between
dismissal and reindictment, wrote, “When the original
indictment was dismissed, the thirty-day period again
continued to run; it did not begin anew.” Id. at 151. Adding
together the time that ran on the arrest-to-indictment clock
initially (zero days) and that which ran after the dismissal of
the original indictment (forty-five days), DeJohn and Harb
argue that the thirty-day period expired, requiring the reversal
of their convictions.
“The purpose of the thirty-day rule is to ensure that the
defendant is not held under an arrest warrant for an excessive
period without receiving formal notice of the charge against
which he must prepare to defend himself.” Berry, 90 F.3d at
151. The evil against which the Act is meant to protect is the

-- 3 of 12 --

Nos. 02-3158/3175 United States v. DeJohn, et al. 7
3Although we believe the cases cited by Jud ge Ryan in his concurring
opinion, holding that only arrest on formal federal charges triggers the
thirty-day rule, lend further support to our conclusion, we note that none
of them involves an arrest pursuant to an indictment. Because DeJo hn
and Harb were, in fact, arrested pursuant to federal charges — that is,
those contained in the original indictment — we do not believe those
cases necessarily control. See United States v. B lackm on, 874 F.2d 378,
381 (6th Cir.) (“defendant is not ‘arrested’ for purposes of the Speedy
Trial Act until formal federal charges are pending”), cert. denied, 493
U.S. 859 (1989). While we think it is unlikely that any situation will arise
where an arre st pursuant to an indictment will implicate the thirty-day
rule, especially in light of our holding today, we are nonetheless reluctant
to hold that an arrest pursuant to an indictment is not a triggering arrest,
where it is unnecessary to do so to dispose of Harb and DeJohn’s claim.
extension of the period when the accused is under legal
restraint but does not know the charges she will eventually
face; where no legal restraint exists, the thirty-day limit is
inapplicable. This is borne out by the text of the Act itself, as
the remedy for a violation of the thirty-day arrest-to-
indictment rule is the dismissal of charges contained in the
criminal complaint against the accused. Title 18 U.S.C.
§ 3162(a)(1) specifies, “If, in the case of any individual
against whom a complaint is filed . . . no indictment or
information is filed within the time limit required by section
3161(b) . . . such charge against that individual contained in
such complaint shall be dismissed or otherwise dropped.” In
this case, no criminal complaint was ever issued against Harb
and DeJohn, as they were indicted before they were arrested;
they therefore spent no time under the shadow of a complaint
or an arrest warrant without a warning of the charges they
would have to prepare to face. Even if we were to find a
technical violation of the Act in this case, Harb and DeJohn
would have no remedy, as the only remedy for that violation
would be dismissal of charges contained in a nonexistent
complaint. It seems clear that the thirty-day clock is reset by
the dismissal of an outstanding indictment by the government
where no further restraint on the accused’s freedom remains
after that dismissal.3
8 United States v. DeJohn, et al. Nos. 02-3158/3175
In support of their argument that the thirty-day arrest-to-
indictment clock continues to run after the dismissal of the
indictment in the absence of any other legal restraint on their
freedom, Harb and DeJohn rely on a single sentence from
Berry, which stated, “When the original indictment was
dismissed, the thirty-day period again continued to run; it did
not begin anew.” 90 F.3d at 151. While we think this
statement is likely dicta unnecessary to Berry’s holding, as
the thirty-day period had not yet run in Berry, in any event the
meaning of Berry is clearly contrary to the defendants’
position. Even if this sentence were part of the holding of
Berry, rather than dicta incidental to that holding, it would
still be limited by the earlier statement in Berry that the
“purpose of the thirty-day rule is to ensure that the defendant
is not held under an arrest warrant for an excessive period.”
Id. (emphasis added). Berry can thus be reconciled easily
with our holding here: where no arrest warrant or criminal
complaint is outstanding, the thirty-day clock does not run.
B. Jury Unanimity Under Richardson v. United States
DeJohn failed to object to the jury instructions regarding
his felon-in-possession charge, so we review for plain error
the district court’s failure to give the instruction now sought
by DeJohn. United States v. Sims, 975 F.2d 1225, 1240 (6th
Cir. 1992), cert. denied, 507 U.S. 999 (1993). While DeJohn
makes an ineffective-assistance-of-counsel claim with regard
to this asserted error, we decline to address his claim of
ineffective assistance of counsel on direct appeal, as
explained below, and we will review for plain error this claim
of error regarding the instructions.
DeJohn argues that because the indictment charged the
possession of two different firearms as a single violation of 18
U.S.C. § 922(g)(1), prohibiting the possession of firearms by
a felon, he was entitled to a jury instruction stating that the
jury must unanimously decide which firearm he possessed.
DeJohn points to Richardson v. United States, 526 U.S. 813
(1999), in which the Supreme Court held that under the

-- 4 of 12 --

Nos. 02-3158/3175 United States v. DeJohn, et al. 9
continuing criminal enterprise statute, 21 U.S.C. § 848(a),
each underlying violation was an individual element of the
crime, and a unanimity instruction was therefore required.
Title 21 U.S.C. § 848 forbids any person from engaging in a
“continuing criminal enterprise,” which in turn is defined as
a violation of the drug statutes that was part of a “continuing
series of violations” as further defined in 21 U.S.C. § 848(c).
The question for the Court was whether each underlying
violation in the series was an element such that unanimity was
required as to which violations the defendant had committed.
Richardson, 526 U.S. at 817-18. In holding that each
violation in the series was an element of the continuing
criminal enterprise crime, the Court held that the statute in
question defined the crime such that each violation was an
element of the crime, rather than a means by which the crime
is committed, which would not require unanimity. The Court
illustrated the difference between element and means by
discussing a hypothetical robbery by force or threat of force:
while “force” was an element of the crime, the means by
which force was brought to bear did not require unanimity, so
half the jury could believe a knife was used and the other half
a gun without constitutional difficulty. Id. at 817. In making
its determination, the Court proceeded to look at the language
of the statute, tradition, and the breadth of the statute (which
“aggravates the dangers of unfairness” of treating each
violation as a means, id. at 819), and to the desirability of
avoiding having to decide the constitutional questions
surrounding a definition of a crime that allows significant jury
disagreement as to means. The Court also rejected the
government’s argument that demonstrating each violation
would prove too difficult.
Prior to Richardson, the only cases in the Sixth Circuit on
the subject of jury unanimity with respect to multiple firearms
in a single charge dealt with the question of when the facts of
a case required a unanimity instruction, rather than whether
the statutory definition of the crime itself required a
unanimity instruction in every case. The fact-specific rule is
that no unanimity instruction is required where multiple
10 United States v. DeJohn, et al. Nos. 02-3158/3175
firearms charged in a single count were discovered as part of
the same transaction. See Sims, 975 F.2d at 1240-41. A
specific unanimity instruction is required only where “a
genuine risk [exists] that the jury is confused or that a
conviction may occur as the result of different jurors
concluding that a defendant committed different acts.” Id. at
1241 (citations and internal quotation marks omitted).
DeJohn asks us to announce as a rule of law that the specific
firearm possessed by a felon is a statutory element of 18
U.S.C. § 922(g)(1) such that the jury must be given a
unanimity instruction each time multiple firearms comprise
a single § 922(g)(1) charge, regardless of the facts of the case.
Only one circuit court has dealt at length with the question
of whether Richardson requires unanimity as to which firearm
was possessed. See United States v. Verrecchia, 196 F.3d
294, 298-301 (1st Cir. 1999); see also United States v.
Drayton, No. 02-4234, 2002 WL 31518834, *2 (4th Cir. Nov.
7, 2002) (rejecting similar claim without analysis but citing
Verrecchia). Verrecchia involved a defendant who argued
that the instructions to the jury deciding his case should have
included a specific unanimity charge as to which firearms he
possessed. The Verrecchia court decided that the particular
firearm possessed by a defendant is a means and not an
element of the crime of being a felon in possession. The
court’s analysis closely tracked Richardson, looking first to
the language of the statute, emphasizing the phrase “any
firearm” as the element of the crime, and possession of a
firearm as a means to that element. The Verrecchia court
then looked to other provisions of the statute and discussed
the emphasis of these provisions on the categories of persons
prohibited from possessing firearms rather than the type of
firearm possessed. The court then considered legislative
history, which demonstrated that Congress’s emphasis was
again “on the person, not the firearm.” Id. at 300. The court
determined that tradition, a factor used in Richardson, was
unhelpful in the case at hand. The court concluded that
potential unfairness was not an issue, as unlike in Richardson,
a disagreement about which gun was possessed would not

-- 5 of 12 --

Nos. 02-3158/3175 United States v. DeJohn, et al. 11
mean that jurors believed the defendant to be guilty of
different crimes of wildly varying seriousness. Finally, the
Verrecchia court cited Sims and other pre-Richardson cases
that dealt with whether jury unanimity was required as to
which firearm was used or carried under 18 U.S.C. § 924(c).
The court found that “no error, let alone plain error,”
occurred. Id. at 301.
DeJohn attempts to distinguish his case from Verrecchia on
its facts, but that argument misunderstands the holdings both
of Richardson and of Verrecchia. Whether the particular
firearm is an element of § 922(g) is a question of statutory
interpretation, not one to be decided with reference to the
facts of each case. DeJohn also adverted at oral argument to
the Supreme Court case Castillo v. United States, 530 U.S.
120 (2000), which involved a challenge to the determination
by a judge, rather than a jury, that the defendant had carried
a machinegun, a determination that carried the penalty of an
additional twenty-five years in prison under 18 U.S.C.
§ 924(c)(1). In determining that the type of the firearm was
an element of the crime rather than a sentencing factor, the
Court noted that the basic crime under the statute was the use
or carrying of a firearm itself, rather than an underlying crime
of violence, making the traditional notion of the firearm itself
as “means” unhelpful to the Court’s analysis. Id. at 126.
Castillo is distinguishable, however, because it dealt with a
statutory provision that imposed a much steeper penalty,
which both indicates an intention on the part of Congress to
make the triggering fact an element of the crime and raises
greater constitutional concerns if a judge rather than a jury is
allowed to make that determination.
We are convinced by Verrecchia’s careful analysis of the
statute, and we hold accordingly that the particular firearm
possessed is not an element of the crime under § 922(g), but
instead the means used to satisfy the element of “any
firearm.” Therefore, the district court did not commit plain
error in failing to give an instruction to the jury requiring
unanimity as to which of the firearms DeJohn possessed. We
12 United States v. DeJohn, et al. Nos. 02-3158/3175
emphasize, however, that this does not in any way alter the
holding of Sims; when the particular factual circumstances
create “a genuine risk that the jury is confused or that a
conviction may occur as the result of different jurors
concluding that a defendant committed different acts,” a jury
unanimity instruction is still required. Sims, 975 F.2d at 1241
(citations and internal quotation marks omitted). We hold
today only that, as a matter of statutory interpretation, such an
instruction need not be given in every case under § 922(g).
C. Harb’s Remaining Claims of Error
Harb claims that the district court erred in admitting into
evidence tape recordings without the requisite foundation;
that the evidence was insufficient as to Count Twenty-Six,
conspiracy to distribute cocaine, Counts Five, Six, Thirteen,
Seventeen through Twenty-Two, Twenty-Four, and Twenty-
Five, use of a communication facility to facilitate the
marijuana conspiracy, and Counts Twenty-Nine and Thirty,
use of a communication facility to facilitate the cocaine
conspiracy; that the asserted variance between a single
cocaine conspiracy charged in the indictment and the multiple
cocaine conspiracies shown at trial prejudiced Harb; and that
the district court erred in its drug quantity determination at
sentencing. Each of these contentions is without merit and
will be dealt with briefly.
1. Foundation for Tape Recording Evidence
Harb argues that the tape recordings the government made
from the wiretap on Laudato’s cell phone had an inadequate
foundation when they were introduced into evidence. Harb
objected at trial, so we will review the district court’s
admission of the tape recordings for abuse of discretion. See
United States v. Robinson, 707 F.2d 872, 876 (6th Cir. 1983).
Harb essentially argues that the testimony offered when all of
the audio tapes were entered into evidence, that of FBI Agent
Steven Vogt (“Vogt”), was inadequate to establish the
accuracy and trustworthiness of the evidence. He makes no

-- 6 of 12 --

Nos. 02-3158/3175 United States v. DeJohn, et al. 13
argument that the tapes were in fact inaccurate. Vogt testified
as to the court authorization to get the wiretaps, the taping by
two simultaneous recording devices, and the monitoring of
conversations and the log made and further testified that each
tape played at trial was made by isolating a conversation on
the original tapes and dubbing it onto a blank tape. While we
have not in our prior cases indicated precisely what
foundation is necessary to admit audiotapes where the
challenge is to their admission generally, other circuits have
alternately held that the district court must be satisfied that the
recording is “‘accurate, authentic, and generally
trustworthy,’” United States v. Panaro, 266 F.3d 939, 951
(9th Cir. 2001) (citations omitted), that “simply required [is]
proof that the tape recording accurately reflects the
conversation in question,” United States v. Doyon, 194 F.3d
207, 212 (1st Cir. 1999), or that “a proper foundation . . . may
be established in two ways: a chain of custody . . . or
alternatively, other testimony could be used to establish the
accuracy and trustworthiness of the evidence.” United States
v. Rivera, 153 F.3d 809, 812 (7th Cir. 1998). In addition to
Vogt’s testimony, the district court also required that a
foundation be laid for each individual recording before it was
played for the jury. Given the cumulative effect of Vogt’s
testimony and the other witnesses’ authentication of each
audiotape, it was not an abuse of discretion for the district
court to admit the tapes. Cf. United States v. Carbone, 798
F.2d 21, 25 (1st Cir. 1986) (allowing authentication through
testimony of agents as to how recorders worked and
testimony of participants in each conversation).
2. Sufficiency of the Evidence
This court reviews a claim of insufficient evidence to
determine whether, “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). All credibility determinations are drawn in favor of
the prosecution. United States v. Avery, 128 F.3d 966, 971
14 United States v. DeJohn, et al. Nos. 02-3158/3175
(6th Cir. 1997). Harb challenges the sufficiency of the
evidence on all of the counts of using a communication
facility to facilitate acts constituting a felony, namely the
cocaine and marijuana conspiracies, and on the count of
conspiring to distribute and to attempt to distribute cocaine.
In making this argument, Harb basically disregards the
extensive testimony of Laudato and relies instead upon his
own testimony to bolster his argument — which makes this
a credibility determination rather than a sufficiency problem.
See, e.g., Appellant Harb’s Br. at 25 (“[I]n fact no proof was
offered that any cocaine was ever bought, sold, delivered or,
for that matter, even existed, other than the testimony of Mr.
Harb and Laudato.” (second emphasis added)).
Harb makes a slightly more sophisticated argument with
respect to each of the conversations, contending that they did
not “facilitate” a conspiracy to distribute. While this does not
merit discussion with regard to the conversations directly
regarding the sale of marijuana that Harb was making to
Laudato in amounts clearly intended for redistribution, it
bears more parsing out with regard to the cocaine conspiracy.
Harb’s argument is essentially that he was a customer, not a
coconspirator, and he points to cases rejecting the idea that a
mere purchaser can be convicted as a coconspirator. He also
argues with respect to the telephone conversations that even
if the evidence supports an underlying conspiracy, the calls
themselves did not facilitate the conspiracy. But Harb was
clearly conspiring with Laudato in that he knew who
Laudato’s supplier was (referring at one point to “your friend
out in Mentor,” J.A. at 234), gave messages to Laudato to
give to Laudato’s supplier in hopes of facilitating
transactions, and was himself reselling cocaine and informing
Laudato of that fact by phone in an attempt to use his
customers’ willingness to pay in order to get the cocaine from
Laudato’s supplier sooner. Laudato had had difficultly in
getting cocaine from his supplier for quite some time at this
point, a fact of which Harb was aware. Additionally, the
amount of cocaine Harb was receiving from Laudato can also
help in this case to show his knowledge of a wider-ranging

-- 7 of 12 --

Nos. 02-3158/3175 United States v. DeJohn, et al. 15
conspiracy necessary for him to receive the drugs. See United
States v. Warner, 690 F.2d 545, 551 n.10 (6th Cir. 1982);
United States v. Grunsfeld, 558 F.2d 1231, 1235 (6th Cir.),
cert. denied, 434 U.S. 872 (1977). Laudato testified that he
sold cocaine to Harb four to six times, at quantities ranging
from one to nine ounces; one of the phone conversations
recorded between Laudato and Harb was decoded by Laudato
as referring to eighteen ounces of cocaine. Harb’s challenge
to the sufficiency of the evidence fails.
3. Single vs. Multiple Conspiracies
Harb complains that the indictment charges a single
conspiracy between him, Laudato, and “persons known or
unknown,” but the proof at trial included proof of a much
larger conspiracy including all of Laudato’s suppliers and
their suppliers. Harb asserts that he was unable to question
the existence of the larger conspiracy, and that guilt by
association with Laudato operated to his substantial prejudice.
Harb does not make clear what he felt the district judge
should have done differently — whether he is challenging the
inclusion of this evidence at trial or the jury instructions —
but the government treats this assignment of error as a request
for a multiple-conspiracy jury instruction, a common claim.
While Harb suggests this is “a question of fact and is to [be]
considered on appeal in the light most favorable to the
government,” and that “reversal is required where substantial
rights are involved,” Appellant Harb’s Br. at 30, the
government suggests that this is a jury-instruction claim, to be
reviewed for plain error in the absence of an objection by
Harb. Inasmuch as Harb simply contends he was not part of
a larger conspiracy, he essentially repeats his sufficiency-of-
the-evidence claim, which fails for the reasons noted above;
he does not point to specific testimony which was prejudicial
to his case, and that part of his claim should fail. Treating his
claim as one for a jury instruction, as the government does, is
equally unavailing. This was a simple chain-distribution
conspiracy, in which Harb’s not knowing who his ultimate
suppliers were is irrelevant. See Warner, 690 F.2d at 549
16 United States v. DeJohn, et al. Nos. 02-3158/3175
(“Because the success of participants on each level of
distribution is dependent upon the existence of other levels of
distribution, each member of the conspiracy must realize that
he is participating in a joint enterprise, even if he does not
know the identities of many of the participants.”).
4. Quantity Determination
Harb challenges the district court’s determination at
sentencing of the quantity of forty-five pounds of marijuana.
“We review de novo the sentencing court's interpretation of
the Sentencing Guidelines and statutes, and we review for
clear error its factual findings. If the district court's factual
findings are not clearly erroneous, this court reviews de novo
the determination that the conduct in question constituted
relevant conduct.” United States v. Corrado, 304 F.3d 593,
607 (6th Cir. 2002) (citations and internal quotation marks
omitted). Laudato testified that he had received between sixty
and eighty pounds of marijuana from Harb and that a phone
conversation between him and Harb regarding “forty-seven
jobs” was in fact a reference to forty-seven pounds of
marijuana. J.A. at 239, 363-65. This assignment of error is
without merit.
D. DeJohn’s Remaining Claims of Error
DeJohn additionally claims that his indictment on the felon-
in-possession charge was the result of prosecutorial
vindictiveness, that there was insufficient evidence to support
his felon-in-possession conviction, that the district court was
in error in failing to instruct the jury on innocent possession
of weapons, that the district court’s determination of drug
quantity at sentencing was an Apprendi error, that the drug
quantity determination was in any case in error, that the
district court improperly believed itself unable to grant a
downward departure for role in the offense, that the district
court erred in not granting a downward adjustment for
acceptance of responsibility, that it erred in granting an
enhancement for obstruction of justice, that prosecutorial

-- 8 of 12 --

Nos. 02-3158/3175 United States v. DeJohn, et al. 17
misconduct deprived DeJohn of due process, and that DeJohn
received ineffective assistance of counsel at trial. Each of
these contentions is without merit or unripe and will be dealt
with briefly.
1. Prosecutorial Vindictiveness
The original indictment did not charge DeJohn with being
a felon in possession of a firearm in violation of 18 U.S.C.
§ 922(g)(1), but after plea negotiations failed, in which the
allegation was used as a bargaining chip, the charge was
added to the indictment on which DeJohn was ultimately
tried. DeJohn asserts that this charge was added due to
prosecutorial vindictiveness based on his assertion of his right
to go to trial. This claim is effectively foreclosed by
Bordenkircher v. Hayes, 434 U.S. 357, 363-65 (1978), in
which the Supreme Court held in a similar situation that “in
the ‘give-and-take’ of plea bargaining, there is no such
element of punishment or retaliation so long as the accused is
free to accept or reject the prosecution’s offer.” Id. at 363.
This circuit has consistently indicated that when the right
asserted by the defendant is simply the right to go to trial, an
additional charge entered after a failed plea bargain cannot,
after Hayes, form the substance of a viable vindictive
prosecution claim. See United States v. Walls, 293 F.3d 959,
970 (6th Cir.), cert. denied, 537 U.S. 1022 (2002); United
States v. Suarez, 263 F.3d 468, 479-80 (6th Cir. 2001), cert.
denied, 535 U.S. 991 (2002); United States v. Andrews, 633
F.2d 449, 456 (6th Cir. 1980) (en banc), cert. denied, 450
U.S. 927 (1981). This claim fails.
2. Additional Challenges to Felon-in-Possession Charge
In addition to the unanimity argument dealt with above,
DeJohn makes two additional arguments attacking his felon-
in-possession charge. He asserts that the evidence was
insufficient to support a conviction on this count and that he
was entitled to an instruction on innocent possession of
firearms. Both claims fail.
18 United States v. DeJohn, et al. Nos. 02-3158/3175
This court reviews a claim of insufficient evidence to
determine whether, “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.” Avery, 128 F.3d at 971 (citations and
internal quotation marks omitted). “Actual or constructive
possession is sufficient to give rise to criminal liability under
§ 922(g). Both actual and constructive possession may be
proved by circumstantial evidence.” United States v.
Schreane, 331 F.3d 548, 560 (6th Cir.), cert. denied, 124
S. Ct. 448 (2003) (citations and internal quotation marks
omitted). The firearms were found in DeJohn’s residence,
which he shared only with his wife, and he knew precisely
where they were when asked by a law-enforcement agent.
There is sufficient evidence from which the jury could have
concluded that DeJohn had constructive possession of the
guns, even without disregarding the testimony he presented as
to their ownership by third parties. See United States v.
Clemis, 11 F.3d 597, 601 (6th Cir. 1993), cert. denied, 511
U.S. 1094 (1994).
DeJohn next argues that the district court erred in not
giving an innocent-possession instruction to the jury. Since
he failed to object, this omission is reviewed for plain error.
See Sims, 975 F.2d at 1240. Innocent possession is a very
narrow defense to § 922(g), requiring the defendant to show
that he or another was under an unlawful and imminent threat
of death or serious bodily injury, that he had not placed
himself recklessly in that situation, that he had no reasonable
alternative to violating the law, that a direct causal
relationship existed between possessing the firearm and
avoiding the threat, and that he did not maintain the illegal
conduct any longer than necessary. See United States v.
Newcomb, 6 F.3d 1129, 1134-36 (6th Cir. 1993); United
States v. Singleton, 902 F.2d 471, 472-73 (6th Cir.), cert.
denied, 498 U.S. 872 (1990). DeJohn has not alleged that any
of these factors exists in this case in any of the evidence he
has presented; the district court did not err in failing to
instruct the jury on innocent possession.

-- 9 of 12 --

Nos. 02-3158/3175 United States v. DeJohn, et al. 19
3. Sentencing
DeJohn makes five claims of error regarding his sentencing
by the district court. “We review de novo the sentencing
court's interpretation of the Sentencing Guidelines and
statutes, and we review for clear error its factual findings. If
the district court's factual findings are not clearly erroneous,
this court reviews de novo the determination that the conduct
in question constituted relevant conduct.” Corrado, 304 F.3d
at 607 (citations and internal quotation marks omitted).
a. Drug-Quantity Determination
DeJohn argues that the district court’s determination of the
drug quantity attributable to him was unconstitutional under
Apprendi v. New Jersey, 530 U.S. 466 (2000). DeJohn’s
Apprendi argument is entirely foreclosed by United States v.
Lawrence, 308 F.3d 623, 634-35 (6th Cir. 2002), which
squarely rejected an identical argument. DeJohn attempts to
distinguish Lawrence on the facts, but this attempt is entirely
unpersuasive, as Lawrence’s holding is in no way factbound,
and is foursquare on the law: Apprendi does not apply to
Guidelines determinations, only statutory maximums, and
Apprendi does not govern increases in statutory minimum
sentences. Id.
DeJohn additionally argues that the jury found him
responsible for only one pound of marijuana and the district
court therefore erred in finding him responsible for forty-five
pounds. Even if we were to accept DeJohn’s characterization
of the jury’s verdict, his argument that the judge is bound by
the jury’s factfinding in sentencing has been clearly rejected.
See United States v. Watts, 519 U.S. 148, 149 (1997). The
district court in this case made the same quantity
determination as to both defendants, addressing the alleged
inconsistency of that determination with the jury verdict, and
came to the reasonable conclusion based on the evidence that
DeJohn had been involved in a conspiracy to distribute forty-
five pounds of marijuana. The government introduced
20 United States v. DeJohn, et al. Nos. 02-3158/3175
wiretap tapes of Harb and Laudato having a conversation
about “forty-seven jobs,” which Laudato testified referred to
forty-seven pounds of marijuana; an hour after that
conversation, Laudato in a second taped conversation related
to DeJohn that forty-five pounds were available. Laudato
testified that he was attempting to facilitate the sale of the
marijuana to DeJohn, and the taped conversations reveal that
DeJohn was in turn attempting to sell the marijuana to a third
party, who ultimately wouldn’t “do it at that number [i.e.,
price].” J.A. at 235-42, 356-57, 362-67. This was sufficient
evidence from which the district court could reach the
quantity determination of forty-five pounds.
b. Downward Departure for Role in the Offense
DeJohn contends that the district court erred in believing
that it did not possess the authority to make a downward
departure for his role in the offense, which is the only
condition under which this court can review the refusal to
grant a downward departure. See United States v. Walls, 293
F.3d 959, 969 (6th Cir.), cert. denied, 537 U.S. 1022 (2002).
The district court in no way indicated that it did not have the
authority to grant a downward departure, and in fact granted
a downward departure for perceived double-counting on
DeJohn’s sentence. This claim was not raised below, and in
any case, a mere disparity between the sentences of
codefendants, without more, does not justify a downward
departure. See United States v. Parker, 912 F.2d 156, 158
(6th Cir. 1990). Additionally, the length of DeJohn’s
sentence has everything to do with his significant criminal
history (two violent assault convictions) and the felon-in-
possession charges, and little to do with the drug conspiracy
(which increased his overall offense level by only one level).
This claim of error is without merit.

-- 10 of 12 --

Nos. 02-3158/3175 United States v. DeJohn, et al. 21
c. Denial of Downward Adjustment for Acceptance
of Responsibility
As DeJohn pleaded not guilty and went to trial and the
district court found that he perjured himself on the stand at
trial, a finding strongly supported by the record, DeJohn’s
argument that the district court committed error in not
applying a downward adjustment for acceptance of
responsibility is meritless. DeJohn makes the creative
argument that he is entitled to this adjustment despite his
refusal to admit his guilt of specific, convicted acts. He is
not. See U.S.S.G. § 3E1.1 Application Note 1(a) (in
determining whether a defendant has accepted responsibility,
relevant consideration is whether defendant “truthfully
admitt[ed] the conduct comprising the offense(s) of
conviction”).
d. Enhancement for Obstruction of Justice
DeJohn objects to the district court’s enhancement of his
sentence based on obstruction of justice under U.S.S.G.
§ 3C1.1. The district court made careful, detailed findings of
exactly when DeJohn had committed perjury, noting
specifically that DeJohn had “stated under oath that he had
never distributed drugs.” J.A. at 774. The district court went
on to say that not only had the jury found that statement to be
“incredible,” but the court itself found it incredible. Id. This
is borne out by the portions of DeJohn’s testimony regarding
the taped conversations that he had with Laudato, where he
claims that clear references to third parties who are interested
in purchasing marijuana from DeJohn are references to
himself. DeJohn argues that his perjury was insufficiently
material to support an obstruction-of-justice enhancement; it
is hard to imagine a perjurious statement more material to a
conviction for conspiracy to distribute drugs than one
claiming never to have distributed drugs. This argument also
fails. See U.S.S.G. § 3C1.1 Application Note 4(b)
(adjustment applies to “committing . . . perjury”).
22 United States v. DeJohn, et al. Nos. 02-3158/3175
4. Prosecutorial Misconduct
DeJohn argues that the prosecutor committed misconduct
by arguing facts not in evidence, specifically arguing that the
amount of marijuana found at DeJohn’s home was not for
personal use, and stating that the triple-beam scale found at
DeJohn’s house was of a type used by drug dealers. In
determining whether a prosecutor’s inappropriate statements
warrant reversal, we apply the two-step test elaborated in
United States v. Leon, 534 F.2d 667, 678-83 (6th Cir. 1976),
and United States v. Bess, 593 F.2d 749, 753-57 (6th Cir.
1979). See United States v. Carroll, 26 F.3d 1380, 1384-87
(6th Cir. 1994) (collecting and explaining cases). “[F]irst, we
determine whether a prosecutor’s remarks were improper, and
then we determine whether the impropriety amounts to
reversible error.” Carroll, 26 F.3d at 1385. In determining
whether reversal is necessary, we look to four factors: “(1)
whether the remarks tended to mislead the jury or to prejudice
the accused; (2) whether they were isolated or extensive; (3)
whether they were deliberately or accidentally placed before
the jury; and (4) the strength of the evidence against the
accused.” Id. The prosecutor argued that the 7.99 pounds of
marijuana found at DeJohn’s home, at the $1800 per pound
that DeJohn testified he paid for marijuana, was over $10,000
worth of marijuana and therefore not for personal use. This
argument depends upon facts reasonably in evidence and
simply makes an inference from those facts; this is not
improper. Inasmuch as the prosecutor’s description of the
triple-beam scale as an accessory of drug dealers might be
considered a fact not properly in evidence, and inasmuch as
it might tend to prejudice the accused, it was a single remark,
and the evidence against DeJohn is quite strong. This claim
of error fails.
5. Ineffective Assistance of Counsel
DeJohn asserts ineffective assistance of counsel with regard
to his lawyer’s failure to ask for a unanimity instruction and
to object to the alleged prosecutorial misconduct. Normally,

-- 11 of 12 --

Nos. 02-3158/3175 United States v. DeJohn, et al. 23
an appellate court does not consider ineffectiveness of
counsel on direct appeal, as the record of a defendant’s
counsel’s performance is not fully developed, and we
therefore decline to decide this issue. See United States v.
Pierce, 62 F.3d 818, 833 (6th Cir. 1995), cert. denied, 516
U.S. 1136 (1996); see also Massaro v. United States, 538
U.S. 500, 504 (2003) (“In light of the way our system has
developed, in most cases a motion brought under § 2255 is
preferable to direct appeal for deciding claims of
ineffective-assistance.”).
III. CONCLUSION
We therefore AFFIRM the convictions and sentences of
Harb and DeJohn.
24 United States v. DeJohn, et al. Nos. 02-3158/3175
_____________________
CONCURRENCE
_____________________
RYAN, Circuit Judge, concurring. While the defendants
have sent up a considerable number of issues in these appeals,
there are only two, as the majority opinion correctly
recognizes, that have even arguable merit. The first is the
claim made by both defendants that they suffered a violation
of the Speedy Trial Act, and the second is DeJohn’s claim
that a specific unanimity jury instruction was required for his
felon-in-possession charge. While I agree with my
colleagues’ analysis with respect to the jury instruction issue
and with their conclusion that there was no violation of the
Speedy Trial Act, my analysis of the latter issue differs
considerably from theirs.
After a close examination of the language of Sections
3161(b) and 3162(a)(1) and the decisions of this and other
circuits construing those sections, I am satisfied that there was
no violation of the Speedy Trial Act because, and solely
because, there was no arrest within the meaning of Section
3161(b) to trigger the 30-day pre-indictment clock. United
States v. Graef, 31 F.3d 362, 364 (6th Cir. 1994); see also
United States v. Salgado, 250 F.3d 438, 454 (6th Cir. 2001);
United States v. Mills, 964 F.2d 1186, 1189 (D.C. Cir. 1992)
(en banc) (collecting cases); United States v. Summers, 894
F.2d 90, 91 (4th Cir. 1990); United States v. Alfarano, 706
F.2d 739, 741 (6th Cir. 1983) (per curiam).
For the foregoing reasons, I am pleased to concur in the
court’s judgments of affirmance in these two cases.

-- 12 of 12 --