United States v. Sutherland

1

UNITED STATES OF AMERICA, Plaintiff-Appellee, v. RONALD LEE SUTHERLAND (21-1616); TIMOTHY MARK CALICUTT (21-1639); DWAYNE DESHAUN PARKS (21-1670), Defendants-Appellants.

Nos. 21-1616, 1639, 1670

United States Court of Appeals, Sixth Circuit

January 20, 2023

NOT RECOMMENDED FOR PUBLICATION

ON APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF MICHIGAN

Before: SUHRHEINRICH, CLAY, and DAVIS, Circuit Judges.

OPINION

DAVIS Circuit Judge.

In these consolidated appeals, Defendants Ronald Sutherland Timothy Calicutt, and Dwayne Parks appeal from their respective judgments in the United States District Court for the Western District of Michigan. Following a joint trial, a jury convicted all three defendants of various firearm and drug offenses. The district court then imposed sentences which Sutherland and Parks now appeal. Calicutt appeals his convictions, and the district court's failure to declare a mistrial. For the reasons that follow, we AFFIRM in part, VACATE in part, and REMAND for further consideration in light of this opinion.

I.

This case concerns a methamphetamine trafficking conspiracy in Western Michigan. Government officials were first alerted to the conspiracy in late 2019, when the United States Postal Inspection Service intercepted multiple packages containing methamphetamine traveling from California to Chicago. Investigators subsequently identified several men suspected of being Chicago-based methamphetamine suppliers and learned that they were making regular trips to Kalamazoo, Michigan. In February 2020, in coordination with the Drug Enforcement Administration taskforce in Kalamazoo, investigators identified Defendant Dwayne Parks as an individual meeting with the Chicago-based suppliers in Kalamazoo. In March 2020, a deputy sheriff pulled Parks over during a routine traffic stop while Parks was driving a vehicle registered to Defendant Timothy Calicutt. The deputy arrested Parks for driving without a license and, during the subsequent inventory search of the vehicle, recovered baggies containing a total of 73.2 grams of methamphetamine.

In interviews following his arrest, Parks described taking orders for methamphetamine from individuals in and around Kalamazoo and placing the orders for three to ten pounds at a time with the Chicago-based suppliers. Parks was subsequently released from jail, but investigators continued conducting electronic and physical surveillance of Parks, Calicutt, and other suspected conspirators. Specifically, agents identified a home on Race Street in Kalamazoo that was associated with Calicutt and set up surveillance cameras outside the residence. At trial, the government presented surveillance footage and testimony describing a pattern of events between May and June of 2020. The pattern began with investigators receiving vehicle tracker alerts that the Chicago supplier was traveling to Michigan. Parks would then meet with and retrieve U.S. postal packages from the source in Kalamazoo, and then travel to the residence on Race Street.

On June 22, 2020, while surveilling Parks, agents saw him meet with Defendant Ronald Sutherland at a Kalamazoo gas station where he handed Ronald a bag. Ronald left the scene in a vehicle, and officers pulled him over shortly after. Ronald was on the driver's side and his cousin, Michael Sutherland, was on the passenger's side. A search of the vehicle uncovered two pounds of methamphetamine and an unloaded firearm underneath the passenger seat at Michael's feet. At the stop, Michael initially told officers that both the drugs and gun belonged to him. Within three days, Michael changed his tune; he informed a detective that the drugs actually belonged to Ronald and were purchased shortly before the traffic stop. At trial, Michael claimed that the gun did not belong to him either - it was Ronald's gun that he had been trying to sell to Michael.

Based on the preceding investigation, agents obtained several federal search warrants, including warrants for Calicutt's Race Street residence, a house Parks frequented on Charlotte Avenue, and two vehicles. On June 25, 2020, investigators again were alerted that the Chicago source was traveling to Kalamazoo. Surveillance units watched as Calicutt and Parks arrived at a meeting spot; Parks exited the vehicle that Calicutt was driving, retrieved two postal boxes from the Chicago source, and returned to the vehicle. As the two were later pulling into the driveway at the Race Street house, agents converged on the location to execute the search warrant. Calicutt fled on foot, but the officers quickly detained both him and Parks.

In their search of the vehicle that the pair had just exited, officers found the two postal boxes containing a total of approximately 11 pounds of methamphetamine. Inside the Race Street house, agents found two digital scales; a 9mm semiautomatic pistol underneath couch cushions; and $11,600 in cash behind drywall and in a shoebox. In addition to the scales, cash, and guns, agents found common cutting agents for methamphetamine: caffeine powder and 14 two-pound bags of methylsulfonylmethane, or "MSM," which is an advanced joint supplement for horses. Agents also retrieved residency documents for Calicutt, including his birth certificate, a utility bill, and a quitclaim deed to the property. When he was arrested and searched, officers found an additional $8,600 in cash on Calicutt's person.

At the Charlotte Avenue address, agents located the two vehicles they had obtained search warrants for parked in the driveway. Surveillance confirmed that Parks drove both vehicles at various times throughout the investigation. In one of the vehicles, agents found a digital scale and Parks's ID card. In the other, agents found a backpack containing a Ziploc bag with methamphetamine. Upstairs in the Charlotte Avenue home, agents found more Ziploc bags with methamphetamine residue, and a trash bag containing empty U.S. postal boxes with empty heatseal packaging material.

Based on the investigation, a grand jury returned an eight-count indictment against Calicutt, Parks, Ronald Sutherland, and Michael Sutherland. The indictment charged Defendants as follows: Count One charged Calicutt, Parks, and both Sutherlands with conspiracy to distribute and possess with intent to distribute 50 grams or more of methamphetamine, in violation of 21 U.S.C. §§ 841(a)(1), 846; Count Two charged Parks with possession with intent to distribute 50 grams or more of methamphetamine under 21 U.S.C. § 841(a)(1); Count Three charged Michael and Ronald Sutherland with possession with intent to distribute 50 grams or more of methamphetamine under 21 U.S.C. § 841(a)(1), and aiding and abetting under 18 U.S.C. § 2; Count Four charged Michael Sutherland with being a felon in possession of a firearm in violation of 18 U.S.C. § 922(g); Count Five charged Michael Sutherland with possessing a firearm in furtherance of a drug trafficking crime under 18 U.S.C. § 924(c)(1)(A)(i); Count Six charged Calicutt and Parks with possession with intent to distribute 50 grams or more of methamphetamine under 21 U.S.C. § 841(a)(1), and aiding and abetting under 18 U.S.C. § 2; Count Seven charged Calicutt as a felon in possession of a firearm under 18 U.S.C. § 922(g); and Count Eight charged Calicutt with maintaining a drug-involved premises in violation of 21 U.S.C. § 856(a)(1). Michael Sutherland entered a plea deal as to Counts One and Five and agreed to cooperate with the investigation and prosecution of his codefendants. Calicutt, Parks, and Ronald Sutherland proceeded to a joint trial, and a jury convicted them on all counts.

The district court sentenced Parks to 240 months in prison, varying downwards from the Guidelines-calculated 360 months to life. In doing so, the court overruled his objection to a two-level enhancement for maintaining a drug house under U.S.S.G. § 2D1.1(b)(12). The district court sentenced Sutherland to the mandatory minimum sentence of 120 months for both of his counts, to run concurrently. The court overruled Sutherland's objection to the determination that he was not safety-valve eligible under U.S.S.G § 5C1.2.^[1]

II.

Each Defendant challenges the district court's judgments on unique grounds. Calicutt challenges the sufficiency of the evidence at trial. He also asserts that the court should have declared a mistrial on Confrontation Clause grounds after Parks's counsel told the jury that Parks incriminated Calicutt when speaking with police. Next, Parks alleges that the district court erred in applying a two-point sentence enhancement for maintaining a drug house. Finally, Sutherland argues that the district court erred in finding him ineligible for "safety valve" treatment at sentencing. We consider each defendant's claims in turn.

1. Timothy Calicutt

a. Sufficiency of the Evidence

Calicutt first asserts that the government failed to prove all the elements necessary to convict as to each of his four counts. We review de novo a district court's denial of a motion for a judgment of acquittal. United States v Howard, 947 F.3d 936, 947 (6th Cir. 2020). In reviewing the sufficiency of the evidence, a jury's conviction is supported if - taking 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." United States v. Soto, 794 F.3d 635, 657 (6th Cir. 2015) (quoting United States v. Lutz, 154 F.3d 581, 587 (6th Cir. 1998)). Reversal is only permitted upon a finding that "the judgment is not supported by substantial and competent evidence, whether direct or wholly circumstantial, upon the record as a whole." United States v. Hall, 549 F.3d 1033, 1040 (6th Cir. 2008) ...