Judicial “Testimony” Under Rule 605 Is Subject to Rule 52(a) Harmless-Error Review Requiring an Effect on Substantial Rights

United States v. Khari Qunarll Smith (with co-appellants Saruba Asante Smith and Chanel Lashae Logan), 6th Cir., July 29, 2026 (Recommended for Publication)

1. Introduction

The case arose from a drug-distribution scheme initiated from jail. Khari Smith, awaiting sentencing in an unrelated federal drug case, discussed drug sourcing with his cellmate, David Sam. Unbeknownst to Khari, Sam cooperated with the DEA and provided Khari a number for an undercover detective (“Jimmy”). Khari connected Jimmy to Chanel Logan, a Detroit dealer who leased an apartment in Lexington, Kentucky, where she spent time with Saruba Smith.

Logan arranged controlled sales to Jimmy: first, a fentanyl-and-meth transaction in a Lexington parking lot involving Logan and Saruba; second, a meth sale by Logan alone. Later, Logan and Saruba were interdicted while transporting substantial quantities of meth and fentanyl, and a search of Logan’s apartment revealed additional drugs, a firearm, and trafficking paraphernalia.

Logan pleaded guilty to conspiracy and possession-with-intent-to-distribute charges and received 360 months. Khari and Saruba went to trial. A jury convicted both of aiding and abetting drug distribution; it also convicted Khari of using a phone to facilitate a drug offense. Saruba was acquitted of conspiracy and possession-with-intent-to-distribute. On appeal, all three challenged aspects of their convictions and/or sentences.

Key Appellate Issues

• Logan: alleged sentencing speculation about criminal history; application of the U.S.S.G. § 2D1.1(b)(12) “drug house” enhancement; substantive reasonableness.
• Khari: sufficiency of evidence for 21 U.S.C. § 843(b); denial of mitigating-role reduction under U.S.S.G. § 3B1.2; reasonableness/adequacy of explanation for consecutive sentencing.
• Saruba: judicial questioning as improper “testimony” under Fed. R. Evid. 605 and as bias violating due process; sufficiency for aiding and abetting; Guidelines miscalculation involving U.S.S.G. § 2D1.1(a)(5) after a mitigating-role finding.

2. Summary of the Opinion

The Sixth Circuit (Nalbandian, J.) largely affirmed. It upheld Logan’s sentence, including the drug-premises enhancement and the within-Guidelines sentence as substantively reasonable. It upheld Khari’s convictions and sentence, finding sufficient evidence for § 843(b), no clear error in denying a mitigating-role reduction, and an adequate explanation for a consecutive sentence.

For Saruba, the court affirmed the conviction but vacated the sentence. It held the district court’s Starbucks-related clarifying questions improperly relied on the judge’s personal knowledge and thus violated Fed. R. Evid. 605; however, the error was harmless because it did not affect Saruba’s substantial rights. The court also rejected Saruba’s due-process bias claim (plain-error review) and found sufficient evidence to sustain the aiding-and-abetting conviction. But it identified a plain Guidelines-calculation error: after granting Saruba a mitigating-role reduction under U.S.S.G. § 3B1.2, the district court failed to apply the required two-level reduction under U.S.S.G. § 2D1.1(a)(5). The case was remanded for resentencing.

3. Analysis

3.1 Precedents Cited (and How They Shaped the Decision)

A. Sentencing procedure, plain error, and unreliable information

• United States v. Vonner — supplied the Sixth Circuit’s en banc framework for plain-error review when a defendant fails to object at sentencing. It controlled Logan’s procedural challenge and Saruba’s unpreserved Guidelines-calculation claim.
• United States v. Adams — framed the due-process principle that reliance on “materially false or unreliable” information can render a sentence procedurally unreasonable, and required Logan to show both falsity/unreliability and that it served as the basis for the sentence.
• United States v. Messer and United States v. Matthews — reinforced deference to district-court factfinding where supported by the record, helping the panel reject Logan’s claim that the judge “speculated” beyond evidence.

B. Drug-premises (“drug house”) enhancement

• United States v. Taylor — provided the mixed standard of review (clear error for facts; de novo for Guidelines interpretation) in enhancement disputes.
• United States v. Florence — emphasized de novo review for the “primary use” prong in drug-premises litigation.
• United States v. Johnson (737 F.3d 444) — recognized the enhancement’s knowledge requirement.
• United States v. Tripplet and United States v. Bell — supplied “business-like home” guideposts (weapons, packaging tools, equipment, dispersion throughout residence, and sheer volume of drugs), which directly supported affirmance of the enhancement for Logan’s sparsely furnished apartment stocked with drugs and trafficking implements.
• United States v. Stokes and United States v. McFarland — undercut Logan’s “short time window” argument by illustrating that several months (or even a week of storage) can satisfy the enhancement when other indicators show a principal drug use.

C. Substantive reasonableness and disparity arguments

• United States v. Rayyan — defined the essence of a substantive-reasonableness claim (too much weight on some § 3553(a) factors, too little on others).
• United States v. Gardner — supplied the presumption of reasonableness for within-Guidelines sentences and the abuse-of-discretion standard.
• United States v. Glover — clarified that § 3553(a)(6) is aimed at national disparities among similarly situated defendants, not codefendant comparisons, blunting Logan’s disparity claim.
• United States v. Phinazee, United States v. Hymes, and United States v. Swafford — collectively reinforced that within-Guidelines sentences already incorporate the Guidelines’ anti-disparity design, making § 3553(a)(6) a weak tool for arguing against a within-range sentence, and confirming deterrence as a permissible factor.
• United States v. Frei — limited appellate reweighing of § 3553(a) factors once the district court has reasonably considered them.

D. Sufficiency of evidence for 21 U.S.C. § 843(b) and general sufficiency review

• United States v. McLernon and United States v. Burns — provided the elements of § 843(b): knowing/intentionally using a communication facility to facilitate a drug felony.
• United States v. Wheat — supplied the “make easier” conception of facilitation and supported affirmance where phone use arranged or enabled a drug transaction.
• United States v. Fisher and Jackson v. Virginia — supplied the deferential sufficiency standard (view evidence in the government’s favor; rational jury test).
• United States v. Paige — foreclosed Khari’s attack on Sam’s credibility by reiterating that appellate courts do not reassess witness credibility on sufficiency review.
• Glennborough Homeowners Ass'n v. USPS — supported forfeiture principles, explaining why the court declined to address an issue Khari did not raise in his opening brief.

E. Mitigating-role reductions and “indispensability”

• United States v. Mosley and United States v. Lanham — emphasized the district court’s “wide berth” and clear-error review in role determinations.
• United States v. Guerrero — restated that the defendant must be “substantially less culpable than the average participant” to receive a § 3B1.2 reduction.
• United States v. Ednie — warned that treating “indispensability” as dispositive is legal error; the panel relied on this principle to approve the district court’s approach because it expressly disclaimed indispensability as determinative and instead applied the correct factors.

F. Consecutive sentencing: classification and explanation

• United States v. Morris — recognized the analytic difficulty in labeling consecutive-sentence challenges as procedural or substantive, while still requiring adequate explanation.
• United States v. Sears — required that the rationale for imposing consecutive time be “generally clear.”
• United States v. Mitchell and United States v. Brown — held that district courts need not repeat a separate § 3553(a) analysis solely for concurrency/consecutiveness, as long as the overall explanation makes the rationale clear.
• United States v. Johnson (553 F.3d 990) — approved consecutive sentencing to ensure an appropriate incremental penalty for the instant offense.

G. Rule 605 judicial testimony, harmless error, and due process bias

• United States v. Valentine (and its note about abrogation by United States v. Camacho-Arellano) — supported de novo review for Rule 605 claims because Rule 605 states no objection is required.
• Fed. R. Crim. P. 52(a), United States v. Davila, and United States v. Dominguez Benitez — anchored the harmless-error framework and the government’s burden to show harmlessness.
• United States v. Andasola — cited to situate the Sixth Circuit’s approach among other circuits applying a substantial-rights harmlessness analysis to Rule 605 issues.
• United States v. Berber-Tinoco and Tyler v. Swenson — distinguished permissible reasonable inferences from impermissible personal knowledge / new evidence introduced by the judge.
• United States v. Smith — supported the curative effect of an instruction that a judge’s comments and questions are not evidence.
• Bracy v. Gramley, Liteky v. United States, United States v. Owens, and Craddock v. FedEx Corp. Servs., Inc. — set the due-process bias standard and plain-error review for unpreserved bias claims.
• United States v. Evans — demonstrated that skeptical judicial questioning does not necessarily convey bias, especially when paired with a proper jury instruction.

H. Aiding and abetting drug distribution

• Rosemond v. United States — articulated the basic aiding-and-abetting principle: one who furthers the offense is punishable as a principal.
• United States v. Sadler — supplied the Sixth Circuit’s formulation that the defendant must participate as something she wished to bring about and sought to make succeed.
• United States v. Torres-Ramos, United States v. Valdez, and United States v. Gaspar — supported use of circumstantial evidence, presence plus suspicious behavior, and conduct at transaction sites to sustain participation findings.

I. Guidelines miscalculation and plain error

• United States v. Cavazos and Molina-Martinez v. United States — established that an incorrect Guidelines range typically satisfies the third and fourth plain-error prongs (prejudice and fairness) absent record evidence the district court would have imposed the same sentence anyway.
• United States v. Davison — supported declining to adjudicate substantive reasonableness after vacatur and remand for resentencing.

3.2 Legal Reasoning

A. Logan

Procedural reasonableness (criminal-history “speculation”): Applying United States v. Vonner plain-error review, the court held that the sentencing judge’s remarks about Logan’s sophistication were grounded in record evidence (communications about drug supply, trafficking tools, lack of legitimate income). Without “materially false or unreliable” information under United States v. Adams, there was no procedural error to correct.

Drug-premises enhancement: The panel emphasized the “primary use” inquiry and the physical indicia of trafficking—large drug quantities, firearms, scales, bags, a press, and a blender jar—consistent with United States v. Tripplet and United States v. Bell. It rejected Logan’s temporal framing (only three months of activity) as inconsistent with precedent, and also held that on any framing, the sophistication and volume supported that drug manufacturing/distribution was a principal use.

Substantive reasonableness: The sentence was within the Guidelines and thus presumptively reasonable under United States v. Gardner. The panel rejected codefendant comparisons under United States v. Glover and treated deterrence as a permissible consideration under United States v. Phinazee.

B. Khari

Sufficiency for § 843(b): The court applied the Jackson v. Virginia framework (via United States v. Fisher) and held that a rational jury could find Khari knowingly used a phone to facilitate a felony drug offense. The “facilitate” element was met because his call and coaching “made easier” the subsequent transaction, consistent with United States v. Wheat. Attacks on Sam’s credibility were foreclosed by sufficiency-review principles reflected in United States v. Paige.

Mitigating-role denial: Under clear-error review (United States v. Mosley), the panel found Khari was not “substantially less culpable” (United States v. Guerrero) because he brokered and helped organize the deal and understood the operation’s structure. The district court did not treat indispensability as determinative, aligning with the caution in United States v. Ednie.

Consecutive sentence: Guided by United States v. Sears, United States v. Mitchell, and United States v. Brown, the panel held the district court adequately explained consecutiveness as an incremental penalty for committing new drug conduct while already subject to punishment.

C. Saruba

Rule 605 (judge as witness) and harmlessness: The court held the district judge crossed from inference to personal knowledge by asserting facts about Starbucks locations not in the record, violating Rule 605. Critically, the panel then held—expressly as a new move in published Sixth Circuit precedent— that Rule 605 error is assessed for harmlessness under a substantial-rights standard (Fed. R. Crim. P. 52(a)), with the government bearing the burden (citing United States v. Davila and United States v. Dominguez Benitez). The error was harmless because the government’s case rested on stronger evidence (video of Saruba retrieving and passing cash), and the court gave a curative instruction that comments and questions are not evidence (supported by United States v. Smith).

Due process bias: Reviewing for plain error under United States v. Owens and applying Liteky v. United States, the panel held the limited questioning did not show deep-seated favoritism or antagonism making fair judgment impossible, especially in light of the curative instruction.

Sufficiency for aiding and abetting: The panel relied on Rosemond v. United States and United States v. Sadler to affirm, holding Saruba’s presence, awareness (listening to quantity/payment discussion), and act of retrieving and handing over cash supported the conclusion she sought to make the deal succeed.

Guidelines miscalculation (plain error): Once the district court granted a mitigating-role adjustment under U.S.S.G. § 3B1.2, it was required to apply U.S.S.G. § 2D1.1(a)(5)’s two-level reduction when the base offense level was 32. The omission was obvious error. Under Molina-Martinez v. United States and United States v. Cavazos, the panel treated prejudice and the fairness prong as satisfied absent record evidence the same sentence would have been imposed. The sentence was vacated and remanded.

3.3 Impact

A. A published Sixth Circuit rule for Rule 605 errors

The opinion’s most explicit doctrinal development is its published adoption of a substantial-rights harmless-error analysis for Rule 605 violations. Practically, this means:

• Rule 605 violations remain serious, but reversal is not automatic; the question becomes whether the judge’s “testimony” likely influenced the verdict.
• The government bears the burden to show harmlessness under Rule 52(a), aligning Rule 605 analysis with mainstream harmless-error doctrine.
• Trial judges are put on notice that questions grounded in personal familiarity with local geography (rather than the evidentiary record) can trigger Rule 605.

B. Drug-premises enhancement: short-duration activity can still be “primary use”

By affirming the enhancement despite arguments about limited time and lack of on-premises transactions, the panel reinforced that “primary use” can be shown by volume and tooling consistent with a manufacturing or distribution hub (presses, blenders, scales, packaging, guns), even if observed transactions occur elsewhere. This tends to expand the enhancement’s practical reach in high-quantity cases.

C. Sentencing administration: mandatory cross-reference reductions matter

The Saruba remand highlights a recurrent sentencing risk: when a role adjustment is granted under § 3B1.2, courts must check whether § 2D1.1(a)(5) mechanically lowers the offense level for certain base levels. The decision underscores that such errors are fertile grounds for plain-error relief under Molina-Martinez v. United States.

D. Consecutive sentences: explanation need not be duplicative

The Khari portion continues the Sixth Circuit’s trend (see United States v. Mitchell; United States v. Brown) of requiring clarity, not redundancy: district courts should explain consecutiveness, but need not perform an entirely separate § 3553(a) analysis.

4. Complex Concepts Simplified

• Fed. R. Evid. 605 (judge cannot testify): A judge may ask clarifying questions, but cannot add facts based on personal knowledge (e.g., local geography) not introduced through evidence. If the judge effectively becomes a witness, Rule 605 is implicated.
• Harmless error vs. plain error:
  • Harmless error (Rule 52(a)) asks whether an error affected “substantial rights.” If not, the conviction stands; the government bears the burden.
  • Plain error (Vonner) applies when a party failed to object; the defendant must show an obvious error that affected substantial rights and the proceedings’ fairness.
• § 843(b) “facilitation”: Using a phone “facilitates” a drug felony if it makes the crime easier (arranging contacts, setting meetings, coordinating). The government must prove knowing/intentional phone use tied to that facilitation.
• Drug-premises enhancement (U.S.S.G. § 2D1.1(b)(12)): Applies when maintaining a place where drug manufacturing/distribution is a “primary” use. Courts weigh frequency alongside strong indicators like drug quantity and equipment.
• Mitigating-role reduction (U.S.S.G. § 3B1.2): Reserved for defendants substantially less culpable than the average participant; being “indispensable” doesn’t automatically bar it, but active brokering/organizing often defeats it.
• Mechanical Guidelines interaction (U.S.S.G. § 2D1.1(a)(5)): For certain drug base offense levels (including 32), receiving a mitigating-role adjustment triggers an additional, mandatory two-level decrease—an easy-to-miss step that can materially change the Guidelines range.

5. Conclusion

United States v. Khari Qunarll Smith is a multi-defendant drug decision with a particularly important evidentiary-and-appellate procedure holding: the Sixth Circuit, in a published decision, treated Rule 605 judicial-testimony error as subject to Rule 52(a) harmless-error review requiring an effect on substantial rights. On sentencing, the opinion reinforces robust application of the drug-premises enhancement in high-volume, tool-heavy operations and confirms that consecutive sentencing requires an intelligible rationale rather than repetitive factor-by-factor analysis. Finally, it underscores the continuing power of Guidelines-calculation errors to warrant vacatur on plain-error review, as shown by Saruba’s resentencing remand under U.S.S.G. § 2D1.1(a)(5).