United States of America v. Allie Richard Buchanan Iv (98-1353), Troy Swindle (98-1780), Albert Derring…

1
RECOMMENDED FOR FULL-TEXT PUBLICATION
Pursuant to Sixth Circuit Rule 206
ELECTRONIC CITATION: 2000 FED App. 0060P (6th Cir.)
File Name: 00a0060p.06
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
_________________
UNITED S TATES OF AMERICA ,
Plaintiff-Appellee,
v.
ALLIE R ICHARD BUCHANAN
IV (98-1353), TROY S WINDLE
(98-1780), ALBERT DERRING
(98-1391), DERRICK C.
FLOWERS (98-1594),
C HARLES W ASHPUN
(98-1590), R ODNEY D.
ATKINSON (98-1538), OTIS
M URRAY III (98-1537),
EURTIS J ONES (98-1535),
GEORGE KELLUM (98-1534),
and DARRYL FORD (98-1533),
Defendants-Appellants.
;>

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Nos. 98-1353/
1391/1533/1534/
1535/1537/1538/
1590/1594/1780
Appeal from the United States District Court
for the Western District of Michigan at Grand Rapids.
No. 97-00082—Robert Holmes Bell, District Judge.
Argued and Submitted: October 25, 1999
Decided and Filed: February 17, 2000

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2 United States v.
Buchanan, et al.
Nos. 98-1353/1391/1533/1534/
1535/1537/1538/1590/1594/1780
Before: JONES, MOORE, and GILMAN, Circuit Judges.
_________________
COUNSEL
ARGUED: David W. Garrett, DAVID W. GARRETT &
ASSOCIATES, Comstock Park, Michigan, Gaylor L.
Cardinal, SLUITER, AGENTS, CARDINAL, VAN GESSEL,
WINTHER & CARLSON, Wyoming, Michigan, William
Mitchell III, SHERBOW & MITCHELL, Troy, Michigan,
Kenneth A. Rathert, RATHERT LAW OFFICES, Kalamazoo,
Michigan, John R. Minock, CRAMER, MINOCK &
GALLAGHER, Ann Arbor, Michigan, Stuart G. Friedman,
Ann Arbor, Michigan, Maureen M. Milliron, SHERBOW &
MITCHELL, Troy, Michigan, for Appellants. Barbara Colby
Tanase, UNITED STATES ATTORNEY, Grand Rapids,
Michigan, for Appellee. ON BRIEF: Craig T. Wormley,
MILLER & ASSOCIATES, Santa Monica, California, David
W. Garrett, DAVID W. GARRETT & ASSOCIATES,
Comstock Park, Michigan, Gaylor L. Cardinal, SLUITER,
AGENTS, CARDINAL, VAN GESSEL, WINTHER &
CARLSON, Wyoming, Michigan, William Mitchell III,
SHERBOW & MITCHELL, Troy, Michigan, Kenneth A.
Rathert, RATHERT LAW OFFICES, Kalamazoo, Michigan,
John R. Minock, CRAMER, MINOCK & GALLAGHER,
Ann Arbor, Michigan, Stuart G. Friedman, Ann Arbor,
Michigan, Maureen M. Milliron, SHERBOW & MITCHELL,
Troy, Michigan, C. Mark Pickrell, Nashville, Tennessee, for
Appellants. Barbara Colby Tanase, UNITED STATES
ATTORNEY, Grand Rapids, Michigan, for Appellee. Albert
Derring, Bradford, Pennsylvania, Darryl Ford, Springfield,
Missouri, Charles Washpun, Greenville, Illinois, Troy
Swindle, Pekin, Illinois, pro se.
GILMAN, J., announced the judgment of the court and,
with one exception, delivered the opinion of the court.
MOORE, J., concurred in the opinion except as to Part II.C.3
(the drug dog issue). JONES, J. (pp. 20-25), delivered a

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3
separate opinion in which he concurred in the above opinion
except as to Parts II.C.3 and II.C.5 (the photo issue).
MOORE, J., joined in this opinion only as to Part I, making
it the opinion of the court as to the drug dog issue.
_________________
OPINION
_________________
RONALD LEE GILMAN, Circuit Judge. The defendants
in this action were convicted of conspiracy to possess and
distribute cocaine in violation of 21 U.S.C. §§ 841(a)(1) and
846. They raise multiple issues in their appeals, including
challenges to the jury selection process, to evidence admitted
at trial, and to their sentences. For the reasons set forth
below, we AFFIRM the convictions and sentences of all of
the defendants except Allie Richard Buchanan, IV. As to
Buchanan, we AFFIRM his conviction, but VACATE his
sentence and REMAND the same for reconsideration in light
of the district court’s erroneous belief that it did not have
discretion to depart from the applicable sentencing guideline.
I. BACKGROUND
A. Factual background
This case involves a large-scale drug organization involving
numerous individuals, including Rodney D. Atkinson,
Buchanan, Albert Derring, Derrick C. Flowers, Darryl Ford,
Eurtis Jones, George Kellum, Otis Murray, III, Troy Swindle,
and Charles Washpun, all of whom are African-American.
The organization, which began operating in and around
Kalamazoo, Michigan in 1990, was formed by Keylen
Tremell Blackmon, Buchanan, and Scott Hughes.
In broad outline, Blackmon, Buchanan, and Hughes
obtained large quantities of cocaine, primarily from sources
in Chicago, and would then distribute the drugs—in some
instances after converting it into cocaine base (“crack”)—to

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4 United States v.
Buchanan, et al.
Nos. 98-1353/1391/1533/1534/
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various individuals in and around Kalamazoo. Atkinson,
Derring, Flowers, Ford, Jones, Kellum, Murray, Swindle, and
Washpun were all purchasers and/or sellers of the drugs
obtained by Blackmon, Buchanan, and Hughes. The details
of the charged conspiracy will, to the extent necessary, be
discussed in connection with the defendants’ specific
assignments of error.
B. Procedural background
On June 5, 1997, a grand jury indicted twenty-four
individuals—including Buchanan, Derring, Ford, Jones,
Kellum, Murray, Swindle, and Washpun—with conspiracy to
possess and distribute cocaine and cocaine base in violation
of 21 U.S.C. §§ 841(a)(1) and 846. Four of the individuals
were also charged with specific instances of possessing or
distributing the illegal drugs.
A superseding indictment was filed on July 10, 1997, in
which another individual not involved in these appeals was
added to the conspiracy charge. The superseding indictment
also contained money laundering charges and forfeiture
allegations against some of the defendants. On October 1,
1997, Buchanan pled guilty to the conspiracy charge.
A second and final superseding indictment was issued on
October 7, 1997. The new conspiracy charge omitted those
defendants who were originally indicted but who had since
pled guilty, such as Buchanan, and added four new
individuals, including Atkinson and Flowers. In addition to
those modifications, the alleged ending date of the conspiracy
was changed from July of 1996 to June of 1997. Derring pled
guilty on October 29, 1997.
By the beginning of 1998, all but fifteen of those indicted
in the case had entered guilty pleas. Due to the relatively
large number of remaining defendants, the district court
assigned each individual to one of two trials. Atkinson,
Flowers, Ford, Jones, Kellum, Murray, Swindle, and
Washpun constituted the second group. On January 27, 1998,
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25
photographs had an impact on the outcome of this trial. Their
introduction was thus harmless error.

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24 United States v.
Buchanan, et al.
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to create the inference that these individuals were engaged in
illegal narcotics activity at those times. Nor are we
comforted, as the district court is, by the fact that the jurors
were aware of and could “discount” the possible problems
with dog-sniff evidence. Federal Rule of Evidence 403
explicitly recognizes that certain evidence will “confus[e] the
issues [] or mislead[] the jury,” and it is the judge’s duty to
exclude such evidence when the potentiality of those effects
substantially outweighs the evidence’s probative value. Fed.
R. Evid. 403. We believe that in this case, the dog-sniff
evidence carried just this risk.
Despite our concern on this issue, we do not think
admitting the dog-sniff evidence was reversible error. Even
without that evidence, there is substantial other evidence
linking both Murray and Washpun to the conspiracy and to
specific criminal actions.
II.
Second, I am uneasy with the government’s use of the
challenged group photographs in this case. To an
undiscerning eye, the use of the photographs showing the
defendants in a relaxed social setting may seem to be of no
evidentiary consequence. To those who have been victims of
the subtleties of race, however, the conditioning effect of such
a display is most apparent. In the context of this case, with
the racial implications resulting from an all-white jury and an
all-black set of defendants, I worry that the photographs,
introduced as early in the trial as they were, likely had an
improper, not-so-benign racial conditioning effect. Evidence
relating to illicit relationships between defendants which
might otherwise be viewed with skepticism may
subconsciously have been granted a degree of credibility by
virtue of the photographs at issue. In other words, they
introduce more prejudice than probative value. Once again,
however, given the broader evidence linking defendants
together in this conspiracy, I do not believe the use of these
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one day after their trial began, Swindle moved for a mistrial
on the basis that Blackmon, without warning, revealed to the
jury that Swindle had made a proffer to the government that
he was, in fact, guilty of the offenses alleged in the
indictments. The district court, after concluding that a
limiting instruction would be insufficient, granted the motion
and ordered that Swindle be tried at a later date.
On February 3, 1998, a jury convicted each of the
remaining seven defendants. A separate jury convicted
Swindle in late March of 1998. Unless otherwise stated,
references in this opinion to a “trial” are to the trial which
resulted in the conviction of Atkinson, Flowers, Ford, Jones,
Kellum, Murray, and Washpun, and which originally included
Swindle.
On February 19, 1998, the district court sentenced
Buchanan to 156 months of imprisonment. Derring received
a 145-month term of incarceration on March 12, 1998. The
district court imposed a 235-month sentence on Ford on April
4, 1998. On May 1, 1998, Atkinson, Flowers, Jones, Kellum,
Murray, and Washpun were sentenced to respective terms of
240, 360, 240, 360, 300, and 300 months’ imprisonment.
Finally, the district court sentenced Swindle to a 324-month
term on June 23, 1998.
The defendants then appealed, setting forth a variety of
arguments relating to the jury selection process, the
government’s arrangements with certain witnesses, evidence
admitted at trial, and their sentences. In several instances, the
defendants’ individual briefs incorporate by reference the
contentions raised by their co-defendants.

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6 United States v.
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II. ANALYSIS
A. Issues regarding the racial makeup of the jury
and the jury selection process
1. Standard of review
A district court’s ruling on whether a peremptory challenge
violates the mandates of Batson v. Kentucky, 476 U.S. 79
(1986), is entitled to great deference, and this court will not
disturb that ruling unless it is clearly erroneous. See
Hernandez v. New York, 500 U.S. 352, 364-65 (1991).
“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). As to
objections raised for the first time on appeal, we will not set
aside the rulings of the district court unless they constitute
plain error. See Fed. R. Crim. P. 52(b); United States v.
Segines, 17 F.3d 847, 851 (6th Cir. 1994).
2. The defendants’ Batson objection
During jury selection, the government used a peremptory
challenge to strike the only African-American person selected
for the jury. Citing Batson, the defendants argued that
because all of the defendants were African-American, the
challenge was racially motivated. In response, the
government asserted that it excused the juror because of an
answer she provided in response to a written question asked
of all potential jurors. The question was as follows: “What
newspapers, magazines and kinds of books do you read?”
The juror at issue answered: “Grand Rapids press . . . , I read
mysteries, romances and my Bible. I listen to CNN. I really
don’t trust our newspaper.”
Based upon this and other answers, the government, prior
to learning of each juror’s race, assessed the desirability of
each person. The juror at issue had received a “fairly low”
rating. In response to the defendants’ objection, and before
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presumption against the admissibility of evidence of a
canine’s alert to currency, and that the government can
rebut that presumption only if it first clearly and
convincingly establishes, outside the presence of the jury,
the relevance and non-prejudicial character of the offered
evidence.
25 F.3d at 1216-17 (Becker, J., concurring in part, dissenting
in part) (footnotes omitted) (emphasis supplied in original).
Given the unrebutted statistical studies in this and other
cases, we find Judge Becker’s view compelling. We believe
that courts should generally presume against the admissibility
of dog-sniff evidence unless the government offers other
evidence showing a direct nexus between illegal narcotics, the
currency in question, and the defendant. Further, when
circumstances of the dog-sniff detection in any way cast doubt
on the reliability of that evidence, such as in Akins, we believe
courts should find such evidence inadmissible. Under such a
presumption, we believe that the facts of both Murray’s and
Washpun’s arrests militated for exclusion of the dog-sniff
evidence in question. First, as in Carr, the government did
not attempt to rebut the contamination studies. Indeed, one
officer testified that she was aware of studies showing that as
much as seventy to ninety percent of currency is contaminated
with some amount of controlled substances, J.A. at 1034-35,
and none of the witnesses who testified as to the dogs’
training countered those findings. Further, in neither case was
there a nexus between the currency found and illegal
narcotics. The dog sniff in Murray’s case followed a traffic
stop, and although Murray was found with a large amount of
cash, he possessed no narcotics. Similarly, the dog sniff in
Washpun’s case came after a routine traffic stop of a car in
which Washpun was a passenger. A dog “reacted” to
currency in the glove compartment, as well as to money
which had only seconds before been removed from
Washpun’s person. Nevertheless, officers found no drugs in
Washpun’s car. Given the studies cited above, we find it
disquieting that prosecutors utilized dog-sniff evidence alone

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22 United States v.
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Nevertheless, such cases also involved unique circumstances.
In Saccoccia, the appellant had not presented findings to the
district court regarding the non-reliability of such evidence, so
those materials could not inform the district court’s decision.
See 58 F.3d at 777 n.19; cf. Carr v. United States, 25 F.3d
1194, 1202 n.3 (3d Cir. 1994) (declining to take judicial
notice that nearly all currency contains detectable traces of
narcotics). And in Akins, illegal drugs were found in the bag
of the defendant whose money was also sniffed by a narcotics
dog. See 995 F. Supp. at 814. Indeed, when there were other
factors diminishing the reliability of a separate dog sniff, the
Akins Court concluded that the evidence was unduly
prejudicial and did not allow its admission. See 995 F. Supp.
at 814 (finding limited probative value and unfair prejudice
for a sniff of money which was contained in a drawer in a
DEA interdiction room).
In Carr, Judge Becker voiced perhaps the strongest case for
finding dog-sniff evidence inadmissible in particular cases:
If any of the many studies [regarding currency
contamination] is valid, then the fact that a dog alerted to
a large number of bills in United States currency which
has circulated in a major metropolitan center (at which
the studies are directed) is meaningless and likely quite
unfairly prejudicial, see Fed. R. Evid. 403, and evidence
thereof should have been excluded. Although having
been directed to many of the studies . . . , the government
in its brief has not disputed the validity of any of the
studies mentioned above [nor] pointed to any
countervailing studies . . . . It is thus my considered
opinion that the fact that numerous studies by
governmental and private agencies, studies which stand
unrefuted, strongly suggest that a trained canine will alert
to all bundles of used currency does not permit the jury
to draw a reasonable inference that the person in prior
possession of such currency was a drug trafficker or
associated with one. Indeed, I am inclined to the view
that the information now available establishes a strong
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United States v.
Buchanan, et al.
7
the district court commented on the strength of their
challenge, the government stated that the last portion of the
j u r o r ’ s a n s w e r — “ I r e a l l y d o n ’ t t r u s t o u r
newspaper”—indicated, in its view, “a general distrust of
what she read or saw or heard.” The district court then
overruled the Batson objection, finding the government’s
justification “logical” and race-neutral. On appeal, the
defendants contend that the government’s reason for the
peremptory challenge was “merely subterfuge” for its “real
purpose” of excluding the juror because of her race.
“The government cannot use its peremptory challenges in
a criminal case to exclude members of the venire from the
jury solely on the basis of their race.” United States v. Hill,
146 F.3d 337, 340 (6th Cir. 1998). In determining whether
such a violation occurred, the framework is well-settled:
To establish a violation of equal protection under Batson,
the defendant must first make a prima facie showing that
the prosecutor exercised peremptory challenges based on
race. The burden of persuasion then shifts to the
prosecution to articulate race-neutral reasons for the
strikes. The prosecutor must convey a reason that is
“clear and reasonably specific.”
United States v. Gibbs, 182 F.3d 408, 438-39 (6th Cir. 1999)
(citing and quoting Batson) (citations omitted). The reason
given, however, “need not be particularly persuasive, or even
plausible, so long as it is neutral.” United States v. Harris,
192 F.3d 580, 586 (6th Cir. 1999).
Here, the government offered its reason for striking the
juror in question before the district court could evaluate
whether the defendants had set forth a prima facie case. Such
a sequence of events “renders the initial question of whether
the defendant[s] established a prima facie case moot.” Id. at
587 (citing Hernandez v. New York, 500 U.S. 352, 359
(1991)). The prosecutor in this case, as noted above,
expressed the belief that there was a risk that the juror would

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8 United States v.
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“distrust” what she may hear or read during the course of the
trial. This belief was based on the juror’s written comment
that she did not trust her newspaper. We conclude that such
a belief, although perhaps not “particularly persuasive,” was
at least plausible and a sufficiently neutral justification to
overcome the defendants’ Batson challenge.
3. The defendants’ challenge to the jury venire
At the conclusion of the jury selection process, the
defendants objected to the racial makeup of the entire jury
panel itself, contending that it was not representative of the
voting or driving population of the Western District of
Michigan. In response to a request by the district court, the
government called the jury clerk to testify about the
procedures used to assemble jury venires in the district. The
district court thereafter overruled the objection. In their
appeals, the defendants assert that the Jury Selection and
Service Act, 28 U.S.C. §§ 1861-78, and the Sixth
Amendment entitled them to a jury venire that contained more
African-Americans.
“The Sixth Amendment requires that the jury venire from
which a jury is selected represent a ‘fair cross-section’ of the
community.” United States v. Allen, 160 F.3d 1096, 1103
(6th Cir. 1998) (quoting Taylor v. Louisiana, 419 U.S. 522,
528 (1975)). The factors to consider are set forth in Duren v.
Missouri, 439 U.S. 357 (1979), and are as follows:
In order to establish a prima facie violation of the
fair-cross-section requirement, the 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 this
underrepresentation is due to systematic exclusion of the
group in the jury-selection process.
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United States v.
Buchanan, et al.
21
2The issue of the reliability of dog-sniff evidence emerges in two
different contexts: 1) as here, whether it should be allowed as evidence,
and 2) whether it is sufficiently indicative of probable cause for forfeiture
purposes.
evidence.2 In United States v. $5,000 in United States
Currency, 40 F.3d 846 (6th Cir. 1994), this court held that the
evidentiary value of the narcotics dog’s alert was minimal,
and “insufficiently indicative of probable cause.” Id. at 848-
49. The court cited cases and studies indicating that up to
ninety percent or more of bills test positive for traces of
cocaine. See id. at 849. This conclusion followed a previous
panel which had found that dog-sniff evidence had only weak
probative value. See United States v. $53,082.00 in United
States Currency, 985 F.2d 245, 250 n.5 (6th Cir. 1993).
Other circuits have similarly doubted the utility of such
evidence. See, e.g., United States Currency, $30,060.00, 39
F.3d at 1043 (concluding that statistics showing widespread
currency contamination greatly diminishes the probative value
of positive dog sniffs of money, and that continued reliance
of courts and law enforcement officers on such evidence is
“logically indefensible”) (citation omitted); United States v.
$191,910.000 in United States Currency, 16 F.3d 1051, 1062
n.21 (9th Cir. 1994) (noting that “[i]n recent years, courts
have increasingly questioned the reliability of dog alerts” on
currency); Jones v. Drug Enforcement Agency, 819 F. Supp.
698, 719, 720 (M.D. Tenn. 1993) (concluding that because
contaminated currency is widespread, evidence of a “narcotic-
trained dog’s ‘alert’ to the currency is of extremely little
probative weight”).
Courts generally have not translated these doubts in the
forfeiture realm into an outright prohibition under Fed. R.
Evid. 403. See, e.g., United States v. Saccoccia, 58 F.3d 754,
778 (1st Cir. 1995) (affirming admission of dog-sniff
evidence); United States v. Akins, 995 F. Supp. 797, 814
(M.D. Tenn. 1998) (allowing dog-sniff evidence and
concluding that it was not “unduly prejudicial”).

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20 United States v.
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1Defendants cite two reasons that such a large percentage of currency
is tainted with narcotics. First, when currency is run through a
mechanized counter at a bank, narcotics contained on some of the
currency gets into the counter and is transferred to other currency.
Second, the ink on currency bonds with the narcotics. This argument
echoes other courts’ and studies’ conclusions regarding “contaminated”
money. See, e.g., United States v. United States Currency, $30,060.00,
39 F.3d 1039, 1042 (9th Cir. 1994).
______________________
CONCURRENCE
______________________
NATHANIEL R. JONES, Circuit Judge, concurring, with
MOORE, J., joining in Part I only.
I.
We concur with the majority, and agree with its reasoning
on most aspects of this complex case. Nonetheless, we write
separately because we are persuaded by Murray’s and
Washpun’s argument that the officer testimony that trained
canines reacted positively to currency found on them should
have been ruled inadmissible. Both defendants contend that
this “dog-sniff” evidence is inherently unreliable because it
does not necessarily indicate drug activity on their part, citing
studies finding that anywhere from seventy to ninety-six
percent of United States currency is tainted with narcotics.1
They presented these statistics to the district court through
their motions in limine and oral arguments.
We agree that this dog-sniff evidence was inherently
unreliable and that the court abused its discretion in admitting
it. In recent years, this court and others have expressed
skepticism regarding the probative value of dog-sniff
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Id. at 364. In this case, the government acknowledges that
African-Americans are a “distinctive” group for the purposes
of the Duren analysis. But even if the defendants could show
that the jury venire assembled for their trial was
underrepresentative of their community, they have failed to
show that such underrepresentation was the result of a
“systematic exclusion” of African-Americans from the jury
selection process.
The testimony of the jury clerk established that African-
Americans comprise 4.58% of the total population of the
counties located within the Grand Rapids jury wheel. Of
those residents who qualify for jury service, 2.49% are
African-American. In the instant action, there were two
African-Americans in a venire of seventy, constituting 2.86%
of the venire, which slightly exceeds the proportion of
African-Americans in the Grand Rapids area qualified to
serve as jurors. These statistics indicate that there was no
violation of the fair cross-section requirement in this case.
Moreover, even if the statistics could be viewed as
underrepresentative, the defendants did not present any
evidence of “systematic exclusion.” Accordingly, we
conclude that the district court did not err on this issue.
4. The defendants’ contentions regarding the
method and manner of the jury selection
process
For the first time on appeal, the defendants take issue with
the method and manner of the jury selection process.
Specifically, they complain that the district court “unduly
restricted” their ability to exercise their challenges by
requiring that one attorney serve as lead counsel during voir
dire, and by setting time limits for deciding whether to
exercise a peremptory challenge on a particular juror. None
of the briefs provide any detail concerning the time limits
imposed. Pursuant to Rule 52(b) of the Federal Rules of
Criminal Procedure, this court reviews such claims under the
“plain error” standard. We find an insufficient basis in the

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record to support the defendants’ jury selection claims, much
less any evidence of plain error.
B. Issue regarding leniency offered certain government
witnesses
The defendants contend that, by offering leniency to several
witnesses who testified at trial, the government violated 18
U.S.C. § 201. That section provides, in pertinent part, as
follows:
Whoever . . . directly or indirectly, gives, offers or
promises anything of value to any person, for or because
of the testimony under oath or affirmation given or to be
given by such person as a witness upon a trial, hearing,
or other proceeding, before any court . . . shall be fined
under this title or imprisoned for not more than two
years, or both.
Id. § 201(c)(2).
The defendants’ challenge essentially invokes the now
well-known Tenth Circuit decision of United States v.
Singleton, 144 F.3d 1343 (10th Cir. 1998), which has since
been vacated and rejected en banc, 165 F.3d 1297 (10th Cir.
1999). Moreover, this court has previously ruled that such
prosecutorial conduct does not implicate § 201(c)(2). See
United States v. Ware, 161 F.3d 414, 418-24 (6th Cir. 1998)
(holding that § 201(c)(2) does not preclude the government
from offering leniency to a defendant’s accomplice in
exchange for truthful testimony against the defendant).
Accordingly, we find no merit in this argument.
C. Issues regarding evidence admitted during the trial
1. Standard of review
“The trial court’s determinations of admissibility and
relevancy depend on the exercise of sound judgment within
the context of the entire trial. The trial court's determination
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United States v.
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19
VACATE his sentence and REMAND the same for
reconsideration in light of the district court’s erroneous belief
that it did not have discretion to depart from the applicable
sentencing guideline.

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18 United States v.
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5. Other sentencing issues
The other sentencing issues raised by the defendants
concern the quantity of drugs attributable to each individual,
the adequacy of the factual findings of the district court, and
the fairness of their comparative sentences. We have
carefully reviewed the record as to each of these contentions
and find them to be without merit, much less rising to the
“clearly erroneous” level.
E. Swindle’s appeal
Swindle’s counsel filed a brief on appeal and also a motion
to withdraw pursuant to Anders v. California, 386 U.S. 738
(1967). After a review of the entire record, counsel was of the
opinion that there were no meritorious grounds for appeal.
He did, however, identify nine conceivable issues. These
included the questions of whether the buyers and sellers
charged in the case could properly be considered a part of the
charged conspiracy, whether statements of coconspirators
were introduced against Swindle in violation of the hearsay
rule, whether his criminal history score should include a point
for a thirty-day sentence of secured detention imposed when
he was a juvenile, and whether the district court erred by
considering Swindle’s prior marijuana conviction when
assessing his criminal history. In a separate pro se brief,
Swindle raises several of the challenges already discussed in
connection with the other defendants, and further contends
that his counsel rendered ineffective assistance by failing to
request a lesser-included offense instruction and that the
district court failed to determine at sentencing whether he
should be held accountable for the criminal activity of others.
Our review of the record convinces us that none of the above
contentions has any merit.
III. CONCLUSION
For the reasons set forth above, we AFFIRM the
convictions and sentences of all of the defendants except
Buchanan. As to Buchanan, we AFFIRM his conviction, but
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United States v.
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11
should not be disturbed absent a clear abuse of discretion.”
United States v. Seago, 930 F.2d 482, 494 (6th Cir. 1991)
(citations omitted).
2. Evidence of particular drug transactions
involving Kellum and Murray
At trial, evidence was admitted regarding the 1990 seizure
of sixty-four crack “baggies” from Kellum. In addition,
Murray unsuccessfully sought to exclude evidence of a
controlled sale of crack by him to an undercover police officer
in 1994. On appeal, both Kellum and Murray argue that the
testimony by the police regarding the seizure and the drug
transaction constituted evidence of “other acts” that should
have been excluded pursuant to Rule 404(b) of the Federal
Rules of Evidence. In response, the government contends that
the testimony was admissible as evidence of acts in
furtherance of the conspiracy.
Rule 404(b) provides as follows:
Evidence of other crimes, wrongs, or acts is not
admissible to prove the character of a person in order to
show action in conformity therewith. It may, however,
be admissible for other purposes, such as proof of
motive, opportunity, intent, preparation, plan,
knowledge, identity, or absence of mistake or accident,
provided that upon request by the accused, the
prosecution in a criminal case shall provide reasonable
notice in advance of trial, or during trial if the court
excuses pretrial notice on good cause shown, of the
general nature of any such evidence it intends to
introduce at trial.
Fed. R. Evid. 404(b). Here, however, Rule 404(b) is not
applicable because the evidence constitutes “a continuing
pattern of illegal activity.” United States v. Barnes, 49 F.3d
1144, 1149 (6th Cir. 1995). Even if Rule 404(b) applied in
this situation, the district court did not abuse its discretion in

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12 United States v.
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admitting the testimony because the evidence served the
“legitimate purpose of showing the background and
development of a conspiracy.” United States v. Paulino, 935
F.2d 739, 755 (6th Cir. 1991) (citations and internal quotation
marks omitted). Thus, the defendants’ argument is without
merit.
3. Evidence of drug-sniffing dogs’ positive
indications of a narcotics scent on currency
seized from Murray and Washpun
In their appeal, Murray and Washpun also take issue with
the district court’s decision to admit evidence that dogs
trained to detect the scent of narcotics reacted positively to
currency seized from them. They contend that such evidence
should have been excluded pursuant to Rule 403 of the
Federal Rules of Evidence. In response, the government
concedes that the Sixth Circuit views such evidence as having
minimal probative value, but argues that the evidence is
nonetheless admissible.
Rule 403, in pertinent part, provides that “evidence may be
excluded if its probative value is substantially outweighed by
the danger of unfair prejudice . . . .” Fed. R. Evid. 403. Prior
cases support the proposition that because a high percentage
of currency in circulation is tainted with a scent or residue of
narcotics, evidence of a positive indication by a drug-sniffing
dog may have minimal evidentiary value. See United States
v. $5,000 in U.S. Currency, 40 F.3d 846, 849 (6th Cir. 1994).
Indeed, Judge Becker of the Third Circuit has set forth a
compelling argument that there should be a strong
presumption against the admissibility of such evidence. See
United States v. Carr, 25 F.3d 1194, 1214-18 (3rd Cir. 1994)
(Becker, J., concurring in part and dissenting in part). Other
cases, however, instruct otherwise. See, e.g., United States v.
Golb, 69 F.3d 1417, 1428 (9th Cir. 1995) (holding that the
district court did not abuse its discretion in admitting
evidence of currency dog-sniffs and noting that “it was within
the jury’s province to resolve these competing opinions and
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Criminal Procedure. Pursuant to Derring’s plea agreement,
the government had “agree[d] to make a good faith evaluation
of [his] cooperation under th[e] agreement in determining
whether to move for a reduction of [his] sentence . . . .”
Derring contends that although his plea agreement did not
require the government to make such a motion, the
government’s decision must have been based on an
unconstitutional reason in light of his full cooperation. He
suggests that the government discriminated against him on the
basis of his age when it made a substantial assistance motion
in connection with a younger co-defendant, but not himself.
In response, the government argues that (1) Derring never
objected at sentencing and (2) it declined to file a substantial
assistance motion because of Derring’s breakdown in
cooperation, including a motion by Derring to withdraw his
guilty plea.
The record does not indicate why the government chose not
to move for a reduction. This fact, however, does not by itself
imply that the government was motivated by an
unconstitutional reason, nor does it entitle Derring to a
hearing on the matter. See United States v. Bagnoli, 7 F.3d
90, 91-92 (6th Cir. 1993) (holding that the defendant was not
entitled to a hearing as to whether the government acted
unconstitutionally by not filing a substantial assistance
motion, despite the fact that the defendant provided some
assistance and the government did not expressly explain its
reasons for declining to file the motion). In essence, the
government has discretion in deciding whether to file a
substantial assistance motion. That decision will not be
questioned unless the defendant can make “a substantial
threshold showing of an unconstitutional motive.” Id. at 92.
Our review of the record reveals that Derring failed to make
such a showing. As such he was not entitled to a hearing and
his argument on appeal is without merit.

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16 United States v.
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not affirmatively show that the district judge knew he had
such authority).
The district court specifically expressed its belief, however,
that it could not consider Buchanan’s alleged withdrawal
from criminal activity prior to his arrest. At sentencing, the
district court stated as follows: “[T]he guidelines definitely do
not allow for the Court to look at that period of time between
the time of ceasing of criminal activity and the time of
apprehension to say this is a different level.” Although we
express no opinion as to whether such action warrants a
downward departure, the district court was obligated to
consider it because it is a mitigating factor that has not been
adequately considered in formulating the Sentencing
Guidelines. See United States v. Coleman, 188 F.3d 354,
358-60 (6th Cir. 1999) (en banc) (holding that a district court
may not categorically exclude any non-prohibited factors
from consideration for departure). In Coleman, we noted as
follows:
[T]here are an unquantifiable number of potential
departure factors, including heretofore unknown factors
that have not been previously considered by a court.
Simply because a court has not directly ruled on the
factor at issue does not excuse the district court from
considering the factor as a potential basis for a downward
departure.
Id. at 359. Accordingly, we must vacate Buchanan’s sentence
and remand the case to the district court for the limited
purpose of considering whether Buchanan’s alleged
withdrawal from criminal activity prior to arrest warrants a
downward departure.
4. Derring’s assertion that the government
breached the terms of his plea agreement
Derring challenges the government’s decision to forego
filing a motion to reduce his sentence for substantial
assistance as permitted by Rule 35(b) of the Federal Rules of
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United States v.
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13
determine what weight to accord the government's
evidence”); United States v. Saccoccia, 58 F.3d 754, 777-78
(1st Cir. 1995) (“Even though widespread contamination of
currency plainly lessens the impact of dog sniff evidence, a
trained dog’s alert still retains some probative value. . . .
[T]hough the dog sniff evidence likely bolstered the
prosecution’s case and served to inculpate the defendant, we
are not convinced that it presented a substantial risk of unfair
prejudice.”).
Given the uncertainty of this issue, Washpun’s and
Murray’s arguments might have merit. Nonetheless, I see no
need to presently decide the question of whether there should
be a presumption against the admissibility of testimony
regarding a drug dog’s positive indications of narcotics
residue on currency seized from a defendant. Even if the
district court did in fact abuse its discretion in admitting the
testimony regarding the dogs’ alerts, any error was harmless
in light of the substantial amount of other evidence linking
both Murray and Washpun to the conspiracy and to specific
criminal actions.
4. The use of certain drug and packaging
exhibits as demonstrative aids during the
testimony of the government’s drug-
trafficking expert
At trial, a government witness with expert knowledge of the
inner workings of the drug-trafficking trade testified about the
way in which drug dealers package and distribute narcotics.
To illustrate the testimony, the government marked for
identification purposes actual packages of powder cocaine
and crack cocaine. These packages were never introduced
into evidence, but were seen by the jury. On appeal, the
defendants contend that the use of such demonstrative aids
was inflammatory and improper.
We disagree. Our review of the record indicates no
inappropriate use of the packages. Immediately after each

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14 United States v.
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package was identified, the government, through questioning,
established that the drugs exhibited were not seized from the
defendants in this case. Moreover, the defendants failed to
object to the use of the demonstrative evidence and did not
request a limiting instruction. Based upon the foregoing, we
conclude that the use of the packages was permissible.
5. Other evidentiary issues
The remaining evidentiary rulings challenged by one or
more of the defendants concern the admissibility of
photographs depicting the defendants consorting with each
other and with other co-conspirators, the admissibility of a
videotape showing Ford engaging in a drug transaction, and
the timing of the government’s disclosure of that videotape to
defense counsel. After viewing the photos, we find nothing
inflammatory or unfairly prejudicial about them, and our
examination of the record as to each of the other contentions
shows them to be without merit. There is no just basis to find
an abuse of discretion by the district court on these
evidentiary issues.
D. Sentencing issues
1. Standard of review
A district court’s factual findings underlying the application
of the sentencing guidelines will not be disturbed unless
found to be clearly erroneous. See United States v. Mahaffey,
53 F.3d 128, 131 (6th Cir. 1995). Sentencing issues raised for
the first time on appeal will not be considered unless the
underlying ruling constitutes plain error. See United States v.
Barajas-Nunez, 91 F.3d 826, 830 (6th Cir. 1996). If the
district court is aware of its discretion to depart from the
guidelines on the issue before it, a decision to forego a
downward departure is not appealable. See United States v.
Welch, 97 F.3d 142, 152 (6th Cir. 1996).
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2. The nature of the drugs involved in the
conspiracy
For the first time on appeal, several defendants challenge
the adequacy of the district court’s findings with respect to the
nature of the drugs involved in the conspiracy. They contend
that there was insufficient evidence that the narcotics were
crack cocaine as opposed to powder cocaine. This argument
lacks merit. There was extensive evidence in the record that
the conspiracy involved both forms of cocaine and that the
defendants frequently “cooked” powder cocaine to convert it
to crack. As this court has previously noted, the government
may establish the identity of a drug by circumstantial
evidence. See United States v. Wright, 16 F.3d 1429, 1439
(6th Cir. 1994). Moreover, expert testimony is not necessary.
A lay witness who has personal experience with crack cocaine
can establish that a substance is, indeed, crack. See id. at
1439-40 (affirming the district court’s finding that the
substance involved was crack cocaine based on testimony
from several government witnesses who had seen the
defendant “cutting” crack or had seen the substance and knew
it was crack based on their personal experience).
3. Buchanan’s motions for downward departure
On appeal, Buchanan asserts that the district court erred by
refusing to depart downward as to his criminal history
category and his offense level. As noted above, a decision not
to depart is unappealable unless a defendant can establish that
the district court was unaware of its discretion to do so. With
one exception, Buchanan has failed to make such a showing.
A review of the record reveals that the district court
specifically considered Buchanan’s motions, but determined
that a departure was not warranted. Such expressed
consideration is a sufficient indicator that the district court
was aware of its authority to depart. See United States v.
Byrd, 53 F.3d 144, 145 (6th Cir. 1995) (rejecting the
defendant’s attempt to establish that the district court was
unaware of its discretion to depart even where the record did

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