United States v. Dado

• Decision Date: 10 July 2014
• Docket Number: No. 13–1578.,13–1578.
• Parties: UNITED STATES of America, Plaintiff–Appellee, v. Salah DADO, Defendant–Appellant.
• Court: U.S. Court of Appeals — Sixth Circuit

759 F.3d 550

UNITED STATES of America, Plaintiff–Appellee,

v.Salah DADO, Defendant–Appellant.

No. 13–1578.

United States Court of Appeals, Sixth Circuit.

Argued: March 13, 2014.

Decided and Filed: July 10, 2014.

ARGUED:N.C. Deday LaRene, Larene & Kriger, P.L.C., Detroit, Michigan, for Appellant. Janet Parker, United States Attorney's Office, Bay City, Michigan, for Appellee. ON BRIEF:N.C. Deday LaRene, Larene & Kriger, P.L.C., Detroit, Michigan, for Appellant. Janet Parker, United States Attorney's Office, Bay City, Michigan, for Appellee.

Before: MERRITT, MOORE, and CLAY, Circuit Judges.

CLAY, J., delivered the opinion of the court, in which MOORE, J., joined.

MERRITT, J. (pp. 571–73), delivered a separate dissenting opinion.

OPINION

CLAY, Circuit Judge.

Defendant Salah Dado appeals his convictions and 20–year mandatory minimum sentence for conspiracy to manufacture, distribute, or possess 1,000 or more marijuana plants with intent to distribute, in violation of 21 U.S.C. § 846; and aiding and abetting the manufacture of 1,000 or more marijuana plants, in violation of 21 U.S.C. §§ 841(a)(1) and (b)(1)(A)(vii). For the reasons set forth below, we reject Defendant's arguments for reversal, and AFFIRM Defendant's convictions and sentence.

BACKGROUND

On October 13, 2009, after observing suspicious activity and marijuana in plain sight, officers from a multi-law enforcement agency drug task force lawfully obtained and executed a search warrant at the residence of Rocky and Cory Corlew in Gladwin, Michigan. Pursuant to the search warrant, officers confiscated over 93 pounds of processed marijuana in addition to 1,287 marijuana plants that were growing in the Corlews' residence and on the surrounding property. Officers also seized from the Corlews' residence cash, numerous firearms, and various tools used for growing and processing large quantities of marijuana.

As the investigation progressed, additional participants were identified. In addition to Rocky and Cory Corlew, officers discovered that Michael “Mike” Szemites, David Howard, Eric Schweikert, Timothy Bunting, Christopher Threet, and Nathan Stover were each involved with the physical process of growing, harvesting, and processing the marijuana plants. Defendant, a businessman who operated liquor stores in Flint, Michigan, funded the operation and distributed the finished product. Defendant did not participate in the physical process of growing and manufacturing marijuana. Rather, Defendant provided substantial capital for the tools and equipment necessary to cultivate, harvest, and process the marijuana plants, and also purchased and distributed most of the processed marijuana. The marijuana growing operation had produced between 4,000 and 5,000 marijuana plants in 2009.

On May 13, 2011, Defendant was indicted for conspiracy to manufacture marijuana plants in violation of 21 U.S.C. § 846, and for aiding and abetting in manufacturing marijuana in violation of 21 U.S.C. §§ 841(a)(1) and (b)(1)(A). Cory Corlew, Rocky Corlew, Michael Szemites, Eric Schweikert, Nathan Stover, Timothy Bunting, David Howard, Christopher Threet were also charged in connection with the marijuana growing operation. Defendant was arrested at a liquor store that he operated in the Flint, Michigan area. With Defendant's consent, officers searched the store and Defendant's car. Officers recovered marijuana, a digital scale, and a loaded semi-automatic handgun inside the liquor store. In addition, they found small containers of marijuana in Defendant's car. These items were eventually introduced by the government as evidence at Defendant's trial.

Because Defendant had incurred a prior felony drug conviction in 2005 (possession with intent to deliver over 5 kilograms of marijuana), the government gave him notice that his sentence on any count of conviction would be enhanced. Unlike his co-defendants, all of whom pled guilty pursuant to their respective plea agreements, Defendant opted to proceed to trial.

During Defendant's trial, the jury heard testimony from numerous witnesses who connected Defendant to the marijuana manufacturing operation. Rocky Corlew testified that it cost approximately $15,000 to run the marijuana manufacturing operation in 2009, and that most of the money had come from Defendant, who had given it to Mike Szemites. Cory Corlew testified that “Rocky didn't have the means or the money to run that grow operation, and they would get money from [Defendant].” (R. 331, Trial Tr. III at 234.) Both Cory and Rocky Corlew also testified that, in addition to relying on Defendant to buy tools and equipment to grow the marijuana plants, the operation also relied on Defendant to buy the processed marijuana. Rocky testified that he had expected Defendant would buy “most of” the marijuana produced by the 2009 crop (approximately “a thousand pounds” of processed marijuana) at $3,000 per pound. In addition, the jury heard testimony from a marijuana grower named Richard Anderson who had met and talked to Rocky Corlew and Michael Szemites in the Clare County Jail following their arrest in this case. Anderson testified that Corlew and Szemites told him that “they had a guy that bought quite a bit of [marijuana], for $3,000 a pound.... They said he owned stores in Flint. I think it was liquor stores. They didn't say his name or describe what he looked like or anything.” (R. 334, Trial Tr. VI at 540.)

Witnesses also testified that Defendant had indeed purchased most of the marijuana that had been harvested and processed before the operation was discovered in October 2009. Rocky testified that Defendant had purchased approximately “fifteen” of the twenty pounds of marijuana that had been sold before the police raid, and that he and Cory had received about $7,000 to $8,000 in cash from Defendant's purchase of the pre-raid 2009 crop. Eric Schweikert testified that Defendant also purchased and distributed additional marijuana processed from plants that police did not find during the raid. Schweikert testified that he gave at least one pound of marijuana from that crop to Defendant, who sold it for $5,000, and gave the money to Schweikert. ¹ Cory Corlew testified, “Any time I heard [Defendant's] name mentioned, it was either regarding him giving [Mike Szemites] and Rocky money or for the growth of marijuana or in terms of him buying marijuana that was grown.” (R. 331, Trial Tr. III at 219.)

The prosecution also called as a witness Defendant's self-proclaimed best friend, Jon Abbott. Abbott was not a co-conspirator in the marijuana manufacturing operation on the Corlew's property, but had been involved with some marijuana related transactions in the past, and apparently trafficked marijuana with Defendant at some point prior to 2008. Abbott is also a friend of Mike Szemites and the Corlews.

Abbott testified that Mike Szemites had informed him in early 2009 about the marijuana growing operation conducted “at Rocky's house ... up north,” and that Szemites asked him to back the project financially, which Abbott declined to do. (R. 334, Trial Tr. VI at 559.) Abbott also testified that during the summer of 2009, he and Defendant had multiple conversations concerning the ongoing marijuana production on the Corlews' property. Abbott said that Defendant encouraged him to invest in the operation, and indicated Defendant himself had invested at least $1,500 at that point. Abbott also testified that Defendant had expressed concern about the possibility that growing 3,000 marijuana plants outdoors might result in detection of the operation by law enforcement. Further, Abbott testified that Defendant expected to get marijuana in return for his contributions, and claimed that when the operation was discovered and raided by the police, Defendant had already received at least “five and a half pounds” of processed marijuana. In addition, Abbott testified that after police uncovered the operation, Defendant advised him not to contact Szemites because things had been “busted up north.” Abbott also corroborated Eric Schweikert's testimony that Defendant received “a couple pounds” of marijuana from the unrecovered plants that Schweikert harvested and processed after the raid.

During the trial, defense counsel cross-examined Abbott about his hope of leniency or protection from prosecution for a marijuana related transaction that was pending investigation in state court. No state or federal charges had been filed against Abbott at the time of Defendant's trial. Abbott admitted that he was “hoping that by providing truthful testimony, that will be taken into consideration by the state authorities in the handling of [his] cases [.]” (R. 334, Trial Tr. VI at 55.)

At the conclusion of Defendant's trial, the jury was instructed on the elements of the charged offenses. For the conspiracy charge in Count One, the district court explained:

With regard to the second element—the defendant's connection to the conspiracy—the government must prove that the defendant knowingly and voluntarily joined that agreement ... This does not require proof that the defendant knew the drug involved was marijuana. It is enough that the defendant knew that it was some kind of controlled substance. Nor does this require proof that the defendant knew how much marijuana was involved. It is enough that the defendant knew that some quantity was involved.

(R. 319, Jury Instructions at 11.) The jury was also asked to determine the quantity of the controlled substance involved in each charged offense. The district court instructed the jury that it was required to make its findings as to drug quantities unanimously and beyond reasonable doubt, and that Defendant did not have to be shown to have had knowledge of those quantities:

In determining the quantity of the controlled substance involved in the conspiracy as a whole, or in Count 4 [aiding and abetting manufacture], you need not find that the defendant knew the quantity involved in...