U.S. v. BRAZIL

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First, there must be an error or defect — some sort of "[d]eviation from a legal rule" — that has not been intentionally relinquished or abandoned. . . . Second, the legal error must be clear or obvious, rather than subject to reasonable dispute. Third, the error must have affected the appellant's substantial rights, which in the ordinary case means he must demonstrate that it "affected the outcome of the district court proceedings."

Puckett v. United States, ___ U.S. ___, 129 S.Ct. 1423, 1429, 173 L.Ed.2d 266 (2009). Fourth, if these three prongs are satisfied, then the court "has the discretion to remedy the error — discretion which ought to be exercised only if the error `seriously affect[s] the fairness, integrity or public reputation of judicial proceedings.'" Id. (emphasis in original). Ultimately, however, either de novo or plain error review yields the same results. As the prosecution provided the material in question in the fashion prescribed by the Jenks Act, 18 U.S.C. § 3500, the prosecution did not violate Brazil's due process rights and that the district court therefore committed no error.

Brazil alleges that the prosecution committed a Brady violation by failing to disclose, in a timely fashion, the statement of Willie Jackson taken by Bowden on September 15, 2008 (the day before the trial started). Brazil maintains in part that this statement demonstrates that law enforcement knew that Dancey was continuing to engage in unauthorized side drug sales through at least October of 2007 — despite the fact that Bowden had suggested in his testimony that Dancey had stopped all un-authorized sales in May of 2007. The prosecution provided a full transcript of Jackson's statement to the defense on September 19, 2008, the third day of trial, just before Jackson testified but after testimony from Woodard, Sommers, and Bowden. Having received this material, Brazil's attorney stated for this record his objections to the constitutionality of the Jencks Act, but added that "under the current state of the law and the constitutionality of the Jenks Act, the United States Attorney has complied fully with the law as it now stands." (Trial Tr. III:2-3.)

As the Supreme Court concluded in Brady, 373 U.S. at 87, 83 S.Ct. 1194, "[t]he suppression by the prosecution of evidence favorable to an accused upon request violates due process where the evidence is material either to guilt or to punishment, irrespective of the good faith or bad faith of the prosecution." Brady, 373 U.S. at 87, 83 S.Ct. 1194. "There are three components of a true Brady violation: The evidence at issue must be favorable to the accused, either because it is exculpatory, or because it is impeaching; that evidence must have been suppressed by the State, either willfully or inadvertently; and prejudice must have ensued." Strickler v. Greene, 527 U.S. 263, 281-82, 119 S.Ct. 1936, 144 L.Ed.2d 286 (1999). Evidence is material under Brady "when there is a reasonable probability that, had the evidence been disclosed, the result of the proceeding would have been different." Cone, 129 S.Ct. at 1783 (citing United States v. Bagley, 473 U.S. 667, 682, 105 S.Ct. 3375, 87 L.Ed.2d 481 (1985)). Brady also applies in the context of non-disclosure of evidence which impacts upon the credibility "of a witness whose `reliability may . . . be determinative of guilt or innocence.'" United States v. Kuehne, 547 F.3d 667, 698 (6th Cir. 2008) (quoting Giglio v. United States, 405 U.S. 150, 153-54, 92 S.Ct. 763, 31 L.Ed.2d 104 (1972)).

While Brazil and the government present various arguments regarding whether the Jackson statement constitutes Brady material, whether it does is ultimately irrelevant, because the government in providing the statement to the defense before Jackson testified complied fully with the requirements of the Jenks Act, 18 U.S.C. § 3500. According to the Jencks Act:

(a) In any criminal prosecution brought by the United States, no statement or report in the possession of the United States which was made by a Government witness or prospective Government witness (other than the defendant) shall be the subject of subpoena, discovery, or inspection until said witness has testified on direct examination in the trial of the case.

(b) After a witness called by the United States has testified on direct examination, the court shall, on motion of the defendant, order the United States to produce any statement (as hereinafter defined) of the witness in the possession of the United States which relates to the subject matter as to which the witness has testified.

18 U.S.C. § 3500(a)-(b). The term "statement" includes any "transcription . . . which is a substantially verbatim recital of an oral statement made by said witness and recorded contemporaneously with the making of such oral statement." Id. at § 3500(e)(2). The transcript of Bowden's interview with Jackson, a testifying witness, was clearly within the ambit of the Act.

As we have stated repeatedly, "[w]hen Brady material sought by a defendant is covered by the Jencks Act . . . the terms of that Act govern the timing of the government's disclosure." United States v. Davis, 306 F.3d 398, 421 (6th Cir. 2002) (quoting United States v. Bencs, 28 F.3d 555, 561 (6th Cir. 1994)). "If impeachment evidence is within the ambit of the Jencks Act, then the express provisions of the Jencks Act control discovery of that kind of evidence. . . . the government may not be compelled to disclose Jencks Act material before trial." United States v. Presses 844 F.2d 1275, 1283 (6th Cir. 1988). Put another way: the Jenks Act trumps Brady where impeachment evidence is Jencks Act material. As the Bencs court noted, " Presser discounted the likelihood that a defendant could be prejudiced by the production of witness statements during trial, as permitted by the Jencks Act, noting that even the Brady doctrine requires only the production of material in time for its effective use at trial." Bencs, 28 F.3d at 561.

The Jackson statement clearly fell within the ambit of the Jencks Act, and so was not subject to compelled disclosure — even if it was Brady material — prior to Jackson's testimony. Accordingly, we find that the prosecution in producing the Jackson statement did nothing to violate Brazil's due process rights and that the district court therefore committed no error.

Even if the statement were not Jencks Act material, moreover, Brazil would be unable to demonstrate a Brady violation because he can not demonstrate prejudice. See Strickler, 527 U.S. at 281-82, 119 S.Ct. 1936. " Brady generally does not apply to delayed disclosure of exculpatory information, but only to a complete failure to disclose." Kuehne, 547 F.3d at 698 (quoting Bencs, 28 F.3d at 560-61). "[A] `delay only violates Brady when the delay itself causes prejudice.'" Id. Here, Brazil maintains that the government's production of the statement on the third day of trial hampered his ability to cross-examine other witnesses, including Bowden. Following production of the statement, however, Brazil had the opportunity to ask the court to recall Bowden, but chose not to do so. The Sixth Circuit has routinely recognized that permitting the defense to recall a witness for cross-examination can cure prejudice caused by the delayed production of Brady or Jencks Act material. See, e.g., Joseph v. Coyle, 469 F.3d 441, 472 (6th Cir. 2006); United States v. Blackwell, 459 F.3d 739, 759 (6th Cir. 2006) (holding that, where defendant was granted an opportunity to recross examine a witness after defendant received Brady documents following the testimony of the witness, "any prejudice resulting from Defendant's failure to [recross examine the witness] is not attributable to the government's violation of the principles set forth in Brady "); United States v. Spry, 238 Fed.Appx. 142, 148-49 (6th Cir. 2007).

III.

Brazil's second argument is that the district court violated his Sixth Amendment right to confront witnesses as recognized in Crawford v. Washington, 541 U.S. 36, 124 S.Ct. 1354, 158 L.Ed.2d 177 (2004), by permitting Bowden to testify regarding statements allegedly made by Dancey, who himself did not testify and was not subject to cross-examination. Brazil objects to two statements to which Bowden testified: the first was Dancey's statement that a message Dancey left on Brazil's voicemail stating that Dancey wanted to buy Brazil's car for $3,000 was code for wanting to buy $3,000 worth of drugs; the second was Dancey's response when accused by Bowden in May of 2007 of dealing drugs on the side. Confrontation Clause issues are reviewed de novo, United States v. Powers, 500 F.3d 500, 504 (6th Cir. 2007), and are subject to harmless error analysis, United States v. Martinez, 588 F.3d 301, 313 (6th Cir. 2009). On direct criminal appeal, a Confrontation Clause violation is harmless only if the court is able to declare a belief that the violation was harmless "beyond a reasonable doubt." Delaware v. Van Arsdall 475 U.S. 673, 684, 106 S.Ct. 1431, 89 L.Ed.2d 674 (1986); Chapman v. California, 386 U.S. 18, 24, 87 S.Ct. 824, 17 L.Ed.2d 705 (1967).

Whether such an error is harmless in a particular case depends upon a host of factors, all readily accessible to reviewing courts. These factors include the importance of the witness' testimony in the prosecution's case, whether the testimony was cumulative, the presence or absence of evidence corroborating or contradicting the testimony of the witness on material points, the extent of cross-examination otherwise permitted, and, of course, the overall strength of the prosecution's case.

Van Arsdall, 475 U.S. at 684, 106 S.Ct. 1431; see also Earhart v. Konteh, 589 F.3d 337, 345 (6th Cir. 2009).

The Confrontation Clause of the Sixth Amendment states, "In all criminal prosecutions, the accused shall enjoy the right . . . to be confronted with the witnesses against him." U.S. CONST. amend. VI. In 2004, the Supreme Court concluded that the Clause bars "admission of testimonial statements of a witness who did not appear at trial unless he was unavailable to testify, and the defendant had had a prior opportunity for cross-examination." Crawford, 541 U.S. at 53-54, 124 S.Ct. 1354. "To trigger a violation of the Confrontation Clause, an admitted statement must be testimonial in nature, and must be hearsay." United States v. Deitz, 577 F.3d 672, 683 (6th Cir. 2009). A statement is testimonial where a reasonable person would anticipate that his or her statement would be used "against the accused in investigating and prosecuting the crime." United States v. Cromer, 389 F.3d 662, 675 (6th Cir. 2004).

A. Dancey's Statements Regarding the "Car for Sale"

Brazil maintains the district court violated his Sixth Amendment rights by permitting Bowden to testify regarding Dancey's statement that a voicemail message Dancey left for Brazil regarding wanting to buy Brazil's car for $3000 was in fact code for wanting to buy $3000 worth of drugs. As the district court ultimately (but not initially) recognized, Bowden's testimony was testimonial hearsay. The Sixth Circuit has held that "statements of . . . confidential informants] are testimonial in nature, and therefore may not be offered by the government to establish the guilt of an accused absent an opportunity for the accused to cross-examine the informant." Cromer, 389 F.3d at 670-71; see also Deitz, 577 F.3d at 683 ("[T]he fact that the declarant was a confidential informant makes his statements testimonial. . . ."). In this instance, moreover, the statement was offered to prove the truth of the matter asserted: that the message Dancey left for Brazil was in fact a coded part of one of the controlled drug purchases. While the district court initially ruled in response to a defense objection that the statement was admissible to explain context, the court changed its mind the next day. Upon convening for the second day of trial, the court stated:

[Y]ou heard testimony from Sergeant Woodard regarding a conversation that took place with Thomas Dancey on or about September 28, 2007. Part of that conversation involved a voice message to the defendant from Mr. Dancey indicating that Mr. Dancey wanted to buy a car for $3,000. Sergeant Woodard, over an objection that was raised, was allowed to testify regarding Mr. Dancey's explanation of that phrase.

I want to change my ruling on that particular issue. I'm not going to allow that portion, Sergeant Woodard's testimony concerning the explanation that was given by Mr. Dancey into evidence. I direct that that testimony be stricken, and you should not consider that evidence admitted in the case.

(Trial Tr. II:3.)

Given that Bowden's statement was testimonial hearsay, the court clearly erred in initially admitting Bowden's testimonial hearsay; any violation of the Confrontation Clause was rendered harmless, however, by the fact that the evidence against Brazil was so strong that he would have been convicted even if the statements had not been admitted. Cf. United States v. Lawson, 535 F.3d 434, 439 n. 1 (6th Cir. 2008) (finding a Confrontation Clause error harmless on direct appeal where the evidence of the defendant's guilt was overwhelming). In addition to direct testimony from Woodard, Sommers, Bowden, and Wade regarding the controlled purchases Dancey made from Brazil, the prosecution presented audio recordings of negotiations between Dancey and Brazil for drugs, a video of the drug distributions from Jackson and Brazil to Dancey on September 13, 2007, and a video of the controlled purchase on October 1, 2007, with a scene of Brazil wiping a package off on his shirt before handing it to Dancey. The prosecution also presented the testimony of Willie Jackson, Brazil's associate, who confirmed that Brazil had sold Dancey the drugs described in the two relevant counts of the superceding indictment. On top of this overwhelming evidence of Brazil's guilt, moreover, the jury heard the court issue a limiting instruction.

Accordingly, we find that, while the district court permitted the jury to hear testimonial hearsay in violation of the Sixth Amendment, as the district court sought to cure the error with a limiting instruction and as the prosecution presented overwhelming evidence of Brazil's guilt, the district court's error was harmless beyond a reasonable doubt.

B. Dancey's Statements Regarding Unauthorized Drug Sales

Brazil also maintains the district court violated his Sixth Amendment rights by permitting Bowden to testify regarding Dancey's statements made after Bowden challenged Dancey and accused Dancey in May of 2007 of selling drugs on the side. It is not entirely clear to what aspect of Bowden's testimony Brazil is objecting. He writes: "[Bowden] testified that Dancey, while initially nervous and upset, calmed down and gave full information. He testified that Dancey made a few bucks as a middle man in transactions to keep his story up and that police made cases against the three people he dealt with." (Brazil Br. at 33.) In other words, Brazil seems to be objecting to any testimony regarding Dancey's responses when accused of making unauthorized sales.

While the statements of confidential informants are always testimonial, "[t]he Confrontation Clause `does not bar the use of testimonial statements for purposes other than establishing the truth of the matter asserted.'" Deitz, 577 F.3d at 676 (quoting Crawford, 541 U.S. at 59 n. 9, 124 S.Ct. 1354). "[E]vidence that is `provided merely by way of background' or is offered only to `explain[] how certain events came to pass or why the officers took the actions they did,' is not offered for the truth of the matter asserted." United States v. Warman, 578 F.3d 320, 346 (6th Cir. 2009) (quoting Cromer, 389 F.3d at 676). In United States v. Gibbs, 506 F.3d 479, 486-87 (6th Cir. 2007), moreover, we found no Crawford violation because the challenged testimony "[d]id not bear on" any element of the charges against the defendant and "was a miniscule part of [the witness's] overall testimony." Here, Bowden testified about Dancey's responses to explain how he and the other law enforcement personnel investigating the Sunnyside Gang addressed their concerns that Dancey was making unauthorized drug deals and to describe the measures the team took to ensure the security of its controlled purchases. The defense, more-over, had already questioned Woodard at length on exactly this question, of what Dancey said when confronted about making unauthorized drug deals.

As Dancey's unauthorized drug dealing in May of 2007 had little relevance to Brazil's sale of drugs to Dancey in September and October of 2007, we find that Bowden's testimony did not bear on any element of the charges, was a minuscule part of Bowden's overall testimony, and therefore was not offered for the truth of the matter asserted. Accordingly, we find that admission of this testimony did not violate the Confrontation Clause.

IV.

Brazil's next argument is that he "was denied due process of law by the use of the confidential informant against him, failure to properly monitor the controlled purchases, and improper bolstering the informant and purchases he conducted." (Brazil Br. at 35.) The government suggests that Brazil is actually making three arguments: (1) sufficiency of the evidence; (2) improper bolstering; and (3) a reassertion of the Brady claim. In fact, Brazil is making only two arguments: (1) denial of due process premised on a Brady violation; and (2) improper bolstering. We have addressed the due process claim at length, and it remains only for us to address his bolstering claim.

Rather than making a sufficiency of the evidence claim, Brazil is simply re-presenting the evidence and arguing that the jury should have decided the case differently. Even if Brazil is making a sufficiency claim, moreover, his argument clearly fails. On appeal from a criminal conviction, we ask "whether, after viewing the evidence in a light most favorable to the government, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt." United States v. Jenkins, 593 F.3d 480, 483 (6th Cir. 2010). As we stated previously, the prosecution here presented overwhelming evidence of Brazil's guilt.

Brazil appears to think that there is some distinction between his earlier Brady argument and a "due process" argument premised on "the fact that the United States Attorney then did not present Dancey to allow cross examination of him" and on the timing of the government's production of the Jackson statement. (Brazil Br. at 39.) Brazil cites no authority for the premise that the government violates due process when it fails to produce a confidential informant for cross-examination at trial; indeed, there is no requirement that the prosecution call such an informant to testify. Brazil's second premise is, as the government argues, simply a restatement of his initial Brady claim, which is fully addressed by our discussion of the Jencks Act.

Brazil argues that prosecution improperly bolstered Dancey's credibility, especially through Bowden's testimony. "Bolstering occurs when the prosecutor implies that the witness's testimony is corroborated by evidence known to the government but not known to the jury." United States v. Francis, 170 F.3d 546, 551 (6th Cir. 1999). In order to avoid bolstering, "if a prosecutor asks a government agent whether the agent was able to corroborate information provided by an informant, the prosecutor must introduce to the jury how that information was corroborated." United States v. Martinez, 253 F.3d 251, 254 (6th Cir. 2001). Where, as here, a defendant makes no objection at trial to prosecutorial misconduct, we review for plain error. United States v. Henry, 545 F.3d 367, 376 (6th Cir. 2008).

While defendants usually allege that the prosecution has bolstered the testimony of a witness, in this case Brazil seems to be arguing that the prosecution "bolstered the use of Dancey", who did not testify, or of the purchases themselves. Brazil cites no authority for the proposition that a prosecutor even could bolster the credibility of a non-testifying confidential informant or of controlled drug purchases. Brazil must instead presumably be arguing that the prosecution bolstered Bowden's testimony regarding Dancey and the controlled purchases.

At trial, Bowden testified extensively on both direct and cross-examination regarding Dancey's role in the investigation of the Sunnyside Gang. Bowden testified, for example, that he had worked with Dancey almost daily between April and October of 2007, during which time Dancey made a total of 40 controlled purchases. Bowden also testified regarding Dancey's response when Bowden confronted Dancey in May of 2007 about Dancey's unauthorized selling of drugs. Brazil now argues that "[t]he entire line of questioning of Bowden concerning corroborating the use of Dancey was improper bolstering implying corroboration from the extent of the investigation and use of the informant in other transactions without providing those transactions on the record." (Brazil Br. at 38.) For this proposition, Brazil cites Martinez, 253 F.3d at 253, in which we found that a prosecutor had improperly bolstered the testimony of the prosecution's main witness by soliciting from a testifying narcotics deputy the unsupported and uncorroborated statement that "the information [the witness has] provided has always been credible, it's been accurate and truthful." Martinez, however, is clearly distinguishable: in this case, neither the prosecution nor Bowden ever suggested that Dancey's credibility had been demonstrated by evidence not known to the jury. If anything, by testifying regarding Dancey's unauthorized dealing, Bowden detracted from Dancey's credibility and trustworthiness. The fact that Dancey participated in 40 controlled purchases, moreover, says nothing about Dancey's credibility or the truth of Bowden's testimony — only the extent of Bowden's interactions with Dancey.

As Brazil has not identified any way in which the prosecutor implied that Bowden's testimony was corroborated by evidence not known to the jury, we find that the prosecution did not improperly bolster Bowden's testimony or Dancey's credibility.

Brazil also argues that in examining Bowden the prosecution "engaged in a lengthy presentation to the Jury . . . to parade information concerning facts to bolster and vouch for Dancey in conducting the alleged purchases with Defendant." (Brazil Br. at 40.) While Brazil cites no case law and does not develop this claim, it is possible to read this statement as also making a vouching argument. Improper vouching occurs "when a prosecutor supports the credibility of a witness by indicating a personal belief in the witness's credibility thereby placing the prestige of the office of the United States Attorney behind that witness." Francis, 170 F.3d at 550. Here, Brazil points to no statements made or questions asked by the prosecutor that would fall within this definition. Even had Brazil fully made this argument, then, it would similarly be unavailing.

v.

Brazil's fourth argument is that his trial counsel rendered ineffective assistance by raising an entrapment defense and so opening the door to detrimental testimony from Roxie Burton regarding Brazil's predisposition to engage in drug trafficking. To demonstrate that his counsel's performance was constitutionally deficient, Brazil must show that it "fell below an objective standard of reasonableness" and that it prejudiced the defense. Strickland v. Washington, 466 U.S. 668, 688-89, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). Such a claim is ordinarily deferred until post-conviction proceedings under 28 U.S.C. § 2255, when an evidentiary hearing can be held to ascertain whether counsel's conduct was motivated by sound strategy. See Warman, 578 F.3d at 348 ("As a general rule, a defendant may not raise ineffective-assistance-of-counsel claims for the first time on direct appeal, since there has not been an opportunity to develop and include in the record evidence bearing on the merits of the allegations.") (quoting United States v. Martinez, 430 F.3d 317, 338 (6th Cir. 2005)). Accordingly, we dismiss this claim; should he choose to do so, Brazil may bring it under 28 U.S.C. § 2255.

VI.

Brazil's fifth argument is that the cumulative effect of the errors he alleges occurred at trial rendered his trial fundamentally unfair. "Errors that might not be so prejudicial as to amount to a deprivation of due process when considered alone, may cumulatively produce a trial setting that is fundamentally unfair." United States v. Hughes, 505 F.3d 578, 597-98 (6th Cir. 2007) (quoting Walker v. Engle, 703 F.2d 959, 963 (6th Cir. 1983)). Except for permitting the jury to hear testimonial hearsay in violation of Brazil's right of confrontation, however — which error we have found harmless in light of the overwhelming evidence of Brazil's guilt presented at trial — the court committed no other error. In other words, Brazil "has failed to identify any other error committed by the district court which could be combined with this harmless error in order to support a finding of cumulative error and which would rise to the level of fundamental unfairness." United States v. Trujillo, 376 F.3d 593, 614 (6th Cir. 2004) (citing United States v. Rivera, 900 F.2d 1462, 1471 (10th Cir. 1990) (holding that "a cumulative-error analysis should evaluate only the effect of matters determined to be error, not the cumulative effect of non-errors.")). Accordingly, we find that Brazil's cumulative error argument is unavailing.

VII.

Brazil's final argument is that the court in sentencing him violated his Sixth Amendment right to a jury trial and to confront the witnesses against him and his Fifth Amendment right against double jeopardy. We review preserved constitutional challenges to sentencing de novo. See United States v. Johnson, 440 F.3d 832, 847 (6th Cir. 2006).

A. Right to a Jury Trial

Brazil argues first that the district court at sentencing violated his Sixth Amendment right to a jury trial as recognized in Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000). Instead of holding Brazil responsible only for the 128.12 grams involved in the transactions for which he was convicted, the court, in considering what "relevant conduct" to take into account and after hearing additional testimony from Bowden, ultimately held Brazil accountable for trafficking in 12.2 kilograms of crack cocaine and 20.1 kilograms of powder cocaine. Brazil maintains that the court was in effect circumventing the basic requirement that "facts that must be found in order for a sentence to be lawful . . . must be found by the jury beyond a reasonable doubt in order to give intelligible content to the right of jury trial." See Rita v. United States, 551 U.S. 338, 373, 127 S.Ct. 2456, 168 L.Ed.2d 203 (2007) (Scalia, J. concurring).

Brazil's argument is premised upon a misunderstanding of Apprendi. According to the Apprendi Court, "[o]ther than the fact of a prior conviction, any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury, and proved beyond a reasonable doubt." Apprendi 530 U.S. at 490, 120 S.Ct. 2348 (emphasis added). As the Supreme Court observed in 2007, moreover, the Sixth Amendment is not violated so long as judicial fact-finding did not result in a sentence greater than the maximum established by plea or verdict. Rita, 551 U.S. at 352, 127 S.Ct. 2456 ("The Sixth Amendment question . . . is whether the law forbids a judge to increase a defendant's sentence unless the judge finds facts that the jury did not find (and the offender did not concede)."). The jury found Brazil guilty of two counts of trafficking in more than 50 grams of cocaine base; the statutory maximum for either count is life imprisonment. See 21 U.S.C. § 841(b)(1)(A)(iii). The court's fact-finding (which supported concurrent 380-month sentences) thus did not increase Brazil's penalty beyond the statutory maximum, see Apprendi 530 U.S. at 490, 120 S.Ct. 2348, and so the court did not violate Brazil's Sixth Amendment right to a jury trial.

B. Right to Confront Witnesses

Brazil argues that, by permitting Bowden to testify at the sentencing hearing regarding summaries of what various individuals had said regarding Brazil's past drug trafficking activities, the district court deprived Brazil of his Sixth Amendment right to confront the witnesses against him in violation of Crawford, 541 U.S. 36, 124 S.Ct. 1354. As we have repeatedly held, however, "confrontation rights do not apply in sentencing hearings as at a trial on the question of guilt or innocence. . . . [Sentencing does not mandate confrontation and cross-examination on information submitted to the court through the presentence reports and law enforcement sources." United States v. Silverman, 976 F.2d 1502, 1510 (6th Cir. 1992) ( en banc); see also United States v. Brika, 487 F.3d 450, 457 (6th Cir. 2007) ("[N]either the rules of evidence nor the right to confront witnesses applies at sentencing.") (citing United States v. Katzopoulos, 437 F.3d 569 (6th Cir. 2006)). The court identified this rule at the beginning of the sentencing hearing, and, following Bowden's testimony, made the necessary independent determination that Bowden's statements had at least the necessary "minimum indicia of reliability" to permit their use in determining relevant conduct. As Bowden had no confrontation rights at sentencing, the court necessarily did not violate them.

C. Right against Double Jeopardy

Brazil maintains that, in enhancing his sentence pursuant to 21 U.S.C. § 851 on the basis of a prior 1998 drug conviction, the district court violated his Fifth Amendment right against double jeopardy because the conduct that led to that conviction "was precisely the conduct upon which the Government chose to dismiss" the conspiracy charge in Count I of the indictment. (Brazil Br. at 47.) Brazil specifically maintains the court's use of the 1998 conviction, "which occurred during the course of the conduct alleged against Defendant in the dismissed Count and not prior thereto, is barred by the prohibition against multiple punishments for the same offense." (Brazil Br. at 47-48.)

Brazil's double jeopardy argument is premised upon the belief that the conspiracy charge in Count 1 was not dismissed until after jeopardy had attached. While the court signed the order granting the government's motion to dismiss on September 23, 2008 (following the verdict), however, the district court clearly believed that it had dismissed this charge prior to trial. ( See 4/13/09 Sentencing Tr. R. 245 at 21 ("I would also advance the additional rationale that in this instance I do not believe that the double jeopardy provisions furnish the defendant with additional argument to the extent that Count One was indeed dismissed before the jury was assembled.").) It also seems clear that the parties also understood, prior to trial, that Count 1 had been dismissed. In its opening statement, for example, the prosecution stated that, "[a]s we talked about before, the defendant is charged in counts 19 and 21 of the indictment. . . . Do not concern yourself with what happened in 1 through 18 or 21 through 26, that has no bearing on this case." (Trial Tr. 1:2-3.) In the final, agreed-to, jury instructions, moreover, the court only discussed Counts 19 and 21, and provided no instruction as to Count 1.

While Brazil is certainly correct that a defendant may not be punished twice for committing the same offense, Brazil's argument is without merit. "It is well established that prior convictions can be used to enhance a defendant's sentence" without implicating the Double Jeopardy Clause. United States v. Flowal, 163 F.3d 956, 963 (6th Cir. 1998). In 1998, Brazil was convicted in the 10th Judicial Circuit of Michigan for possession of less than 25 grams of cocaine. As the sentencing transcripts make clear (and as Brazil's lawyer conceded), in determining that Brazil should be held accountable for 12.2 kilograms in this case, the district court did not include in its calculations the cocaine that formed the basis of the 1998 conviction. Nor, for that matter, did the court base its relevant conduct determination on the dismissed conspiracy count: instead, the court based its determination on evidence of specific drug transactions between Brazil and five cooperating defendants, none of whom were charged or even mentioned in the dismissed count.

That Brazil was convicted of possessing drugs during a period during which he also (according to the dismissed Count 1) engaged in a conspiracy with nine others to sell drugs is not dispositive to the double jeopardy question. In United States v. Hughes, 924 F.2d 1354, 1358 (6th Cir. 1991), for example, we rejected a similar argument, in which a defendant maintained that the district court could not consider a prior state drug conviction in sentencing "since the facts surrounding his previous state conviction occurred during the course of the conspiracy to which he pled guilty in the instant case." We observed:

[A]t the time of his offense, Hughes had a prior felony drug conviction which arose from a separate criminal episode. . . . An episode is an incident that is part of a series, but forms a separate unit within the whole. Although related to the entire course of events, an episode is a punctuated occurrence with a limited duration. The criminal events that constitute the bases for Hughes' conviction for possession of cocaine and his subsequent conviction for conspiracy do not represent a single criminal episode.

Id. at 1361-62. Here, similarly, even if jeopardy attached to the dismissed count of conspiracy, Brazil's 1998 conviction arose from a separate criminal episode, and was not otherwise factored into the district court's relevant conduct determination.

Accordingly, we find that the district court did not subject Brazil to double jeopardy by enhancing his sentence in light of his prior conviction for drug possession.

VIII.

While Brazil is correct that the district court committed an error at trial — initially permitting the jury to hear testimonial hearsay before ultimately issuing a limiting instruction — that error was clearly harmless in light of the overwhelming evidence of guilt that the prosecution presented through the testimony of law enforcement personnel and Brazil's own associate and through video and audio recordings of Brazil participating in drug sales. Despite his arguments regarding his sentencing, moreover, the district court committed no error in hearing additional testimony from Bowden regarding relevant conduct and in enhancing Brazil's sentence on the basis of a prior conviction for drug possession. Accordingly, we AFFIRM the conviction and sentence.