United States v. Sadler
| Citation | 24 F.4th 515 |
| Decision Date | 21 January 2022 |
| Docket Number | Nos. 19-2217/2221/20-1177,s. 19-2217/2221/20-1177 |
| Parties | UNITED STATES of America, Plaintiff-Appellee, v. Kenneth SADLER (19-2217/2221); Demarco Tempo (20-1177), Defendants-Appellants. |
| Court | United States Courts of Appeals. United States Court of Appeals (6th Circuit) |
ARGUED: David M. Burgess, Dearborn, Michigan, for Appellant Kenneth Sadler. Phillip D. Comorski, Detroit, Michigan, for Appellant Demarco Tempo. Daniel R. Hurley, UNITED STATES ATTORNEY'S OFFICE, Detroit, Michigan, for Appellee. ON BRIEF: David M. Burgess, Dearborn, Michigan, for Appellant Kenneth Sadler. Phillip D. Comorski, Detroit, Michigan, for Appellant Demarco Tempo. Amanda Jawad, UNITED STATES ATTORNEY'S OFFICE, Detroit, Michigan, for Appellee.
Before: DAUGHTREY, COLE, and CLAY, Circuit Judges.
Defendants Demarco Tempo and Kenneth Sadler challenge the judgments in their criminal cases after a jury convicted them on various drug, gun, and obstruction of justice charges. Defendant Demarco Tempo appeals his convictions and sentence on a drug conspiracy charge under 21 U.S.C. §§ 841(b)(1)(A)–(C), 846 ; drug possession and distribution charges under § 841(a)(1), (b)(1)(C) ; and a drug possession and distribution near a school charge under §§ 841, 860. Defendant Kenneth Sadler challenges his convictions and sentence on a drug conspiracy charge under 21 U.S.C. §§ 841(b)(1)(A)–(C), 846 ; a drug possession and distribution near a school charge under §§ 841, 860 ; a felon in possession of a firearm charge under 18 U.S.C. § 922(g)(1) ; a conspiracy to obstruct justice charge under § 1512(k) ; and witness tampering charges under § 1512(a)(2)(A). For the reasons discussed below, we AFFIRM Tempo's convictions and sentence, AFFIRM Sadler's convictions, but VACATE Sadler's sentence, and REMAND for a new trial on the sole question of whether Sadler was within the chain of distribution as required before imposing an enhanced sentence under 21 U.S.C. § 841(b)(1)(C).
Between 2012 and 2016, people in east Detroit could buy heroin and crack cocaine at all hours of the day and night by calling one of two different phone numbers and going to a set location where they would meet someone to buy drugs. Those who used this drug dealing system called it "Polo." (See Jamie Dabish Trial Test., R. 705, Page ID #3943, #3959; Marko Tomic Trial Test., R. 721, Page ID #5662; David Grzywacz Trial Test., R. 722, Page ID #5855).1
The Warren City Police Department—in conjunction with the Drug Enforcement Administration ("DEA") and the Federal Bureau of Investigation ("FBI")—began investigating "Polo" in 2016. The investigation led to a large takedown operation. Law enforcement arrested thirteen "Polo" members, and the government charged them with multiple drug trafficking offenses. Most Defendants pleaded guilty. Only Tempo and Sadler proceeded to trial. The trial lasted nineteen days, and the witnesses included "Polo" customers, law enforcement officers, paramedics, acquaintances, medical and forensic experts, and one of the alleged co-conspirators (and co-Defendants). The government also introduced physical evidence from surveillance operations and property searches. This evidence tells the story of a sophisticated and well-organized drug trafficking scheme called "Polo." The government alleges that Tempo led this operation and that Sadler—Tempo's half-brother—participated.
Ten "Polo" customers testified at Defendants’ trial. Each bought drugs from "Polo" many times—some hundreds of times, and often multiple times a day. They each described buying drugs from "Polo" in the same way. First, customers called one of two phone numbers: one ending in x3399, the other ending in x5598. Customers "could call th[ose] phone[s] ... 24/7," and they were "always available." (Olivia Palazzola Trial Test., R. 715, Page ID #5369). Many customers said that the same person "[u]sually, but not always" answered the phone. (Jennifer Pointer Trial Test., R. 717, Page ID #5533; see also Dan Magda Trial Test., R. 722, Page ID #5898 ( the same person answered "[m]ost of the time"); Hannah Fenn Trial Test., R. 715, Page ID #5275 (stating "it sounded like the same person" who answered, and that "maybe once or twice somebody else had answered")). However, a few believed that different people answered the phones. Some customers called and asked for "Polo" or called the person who answered "Polo." But the person answering did not identify himself, and customers never met anyone who introduced himself as "Polo." Even so, customers understood "Polo" to mean "one person." (Pointer Test., R. 717, Page ID #5530).
On this first call, the person who answered the phone directed the customer to a meeting spot, usually one of five locations in east Detroit: Hamburg Street, Dresden Street, the intersection of Bradford Avenue and Bringard Drive, the intersection of Seven Mile Road and Gratiot Avenue, or the intersection of Eight Mile Road and Hoover Road. At the meeting spots, cars often "lined up" waiting to buy drugs. (Tomic Test., R. 721, Page ID #5665). Once the customer arrived, a "runner" would approach her. (Christina Yako Trial Test., R. 723, Page ID ##5990–91). Runners were people who "went around and sold the drugs for whoever was in charge." (Pointer Test., R. 721, Page ID #5603; see also Yako Test., R. 723, Page ID #5990 (describing a "runner" as the one who "comes out and gives the drugs real quick, and just ... goes back in")). Customers met different runners depending on when and where they bought drugs. Sometimes the runner had the drugs on him, but sometimes he went "around the corner of a [vacant] house ... and then [he] would come ba[ck] with the drugs." (Grzywacz Test., R. 722, Page ID #5860). Runners were usually alone and often on foot. Occasionally, however, the runner would be in a van or car when approaching the customer. If the runner was in a car, he was usually with two or three other people.
After a runner approached the customer, the customer placed an order. If the customer wanted heroin, she asked for "boy," and if she wanted crack cocaine, she asked for "girl." (Palazzolo Test., R. 715, Page ID #5345; Dabish Test., R. 705, Page ID #3958). The drugs were packaged in small plastic bags about 0.5 to 1.5 inches in size, and each small bag cost $20. Sometimes the runner took the small bag of drugs out of a larger "sandwich bag that had ... little bags in it." (Pointer Test., R. 717, Page ID #5537). After serving a customer, the runner "would walk up to the next car or walk back where they came from." (Palazzolo Test., R. 715, Page ID #5351).
One runner, Amacio Alexander, testified at Defendants’ trial. In May or June 2016, a man known as "Mr. Howard" recruited Alexander to sell drugs. (Amacio Alexander Trial Test., R. 705, Page ID ##4032–35). Alexander's job was to stand on Hamburg Street and "[s]ell a little product." (Id. at Page ID #4040). On a typical day, he sold drugs to about 50 customers. Mr. Howard gave him the drugs to sell in a sandwich bag with about 50 small, prepackaged bags of drugs. Alexander usually sold three or four sandwich bags—roughly 150 to 200 small, individual bags—each day. He sold each bag for $20, and, when he ran out, Mr. Howard found him, took the money from earlier sales, left, and returned with a replenished bag of drugs.
As early as 2013, the FBI began investigating drug trafficking activity on the east side of Detroit in connection with the name "Polo." As part of this investigation, the FBI set up two undercover purchases using a confidential informant. On January 29, 2013, the informant called the x3399 phone number and was directed to Gratiot Avenue and Whittier Street. He bought three bags—0.175 grams—of heroin for $55. On November 1, 2013, the informant called the x3399 number again and was directed to a house on Hamburg Street. The informant bought two small bags—0.14 grams—of heroin for $40.
Between April 19, 2016, and June 14, 2016, Officer David Villerot with the Warren City Police Department carried out eighteen more undercover purchases. He bought drugs from "Polo" in the same way as all the other "Polo" customers. Officer Villerot or his informant called the x3399 number; met runners at different places including Hamburg Street and the intersection of Bringard and Bradford; asked for certain drugs—for example, "two boy;" and paid $20 for each small plastic bag of drugs. (David Villerot Trial Test., R. 709, Page ID #4529, #4539, ##4545–46, #4572, #4582).
"Polo" sold both heroin and crack cocaine. In early 2016, customers started noticing a change in "Polo's" heroin. Until then, the heroin was "brownish," (Randy Odish Trial Test., R. 717, Page ID #5429), or "light gray," (Tomic Test., R. 721, Page ID #5668). But in early 2016, the heroin changed color; it was lighter—"like a light beige ... [or] an off-white color." (Palazzola Test., R. 715, Page ID #5359). Customers also noticed that the texture changed; the heroin was now more "powder[y]," (Fenn Test., R. 715, Page ID #5279), or "crystally," (Tomic Test., R. 721, Page ID #5677), when it previously came as a "chunk" and was more rock-like, (Grzywacz Test., R. 722, Page ID #5862; Haggart Test., R. 722, Page ID #5785). One customer was so confused by the sudden change in the heroin's appearance that he called the x3399 "Polo" number back and said, "I wanted heroin, not crack," to which the person answering said, "This is heroin." (Odish Test., R. 717, Page ID ##5437–38, #5440). "Polo" customers and street-level dealers called this lighter drug "White China," (Dabish Test., R. 705, Page ID #3969), "kill shit," (Villerot Test., R. 709, Page ID #4554; Fenn Test., R. 715, Page ID #5279), or "Russian white," (Yako Test., R. 723, Page ID #5978).
This lighter, powdery heroin was more potent. Noticing the change in potency, customers were no longer "sure how much [the...
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