                NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                           File Name: 07a0316n.06
                              Filed: May 8, 2007

                                           No. 05-6357

                          UNITED STATES COURT OF APPEALS
                               FOR THE SIXTH CIRCUIT


UNITED STATES OF AMERICA,                        )
                                                 )
       Plaintiff-Appellee,                       )
                                                 )
v.                                               )    ON APPEAL FROM THE UNITED
                                                 )    STATES DISTRICT COURT FOR THE
GILBERT DARREN SIMPSON,                          )    EASTERN DISTRICT OF KENTUCKY
                                                 )
       Defendant-Appellant.                      )
                                                 )




       Before: ROGERS and GRIFFIN, Circuit Judges; and RUSSELL, District Judge.*
       ROGERS, Circuit Judge. Gilbert Darren Simpson appeals his conviction on charges of

conspiracy to distribute marijuana, distribution of marijuana, and possession with the intent to

distribute OxyContin. First, Simpson alleges that his indictment was the result of vindictive

prosecution and that the district court should have dismissed the indictment or, at least, conducted

an evidentiary hearing on the allegation. Second, Simpson asserts that the district court erred both

by quashing Simpson’s subpoena of an Assistant United States Attorney and by prohibiting questions

based on Simpson’s vindictive prosecution allegation during cross-examination of a witness.



       *
       The Honorable Thomas B. Russell, United States District Judge for the Western District of
Kentucky, sitting by designation.

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No. 05-6357
United States v. Simpson

Finally, Simpson challenges the sufficiency of the evidence supporting all three of the counts on

which he was convicted.


       Because Simpson failed to establish that there was a realistic likelihood of vindictiveness,

the district court did not err by denying Simpson’s motion to dismiss the indictment against him or

by denying Simpson’s request for an evidentiary hearing on the vindictiveness allegation. Because

Simpson’s vindictive prosecution claim was not relevant to the issue of guilt or innocence, the

district court was correct to quash the subpoena of an AUSA and to bar questions directly related to

the vindictiveness allegation at trial. Finally, Simpson’s sufficiency of the evidence arguments lack

merit. Accordingly, Simpson’s conviction on all three counts is affirmed.


                                                 I.


       Under the direction of Kentucky State Police Detective Vince Kersey, a police informant,

Marty Mills, purchased for $20 a bag containing marijuana from Gilbert Darren Simpson at

Simpson’s home on November 14, 2003. An additional informant reported seeing controlled

substances at Simpson’s residence on June 4, 2004. On June 18, 2004, the Kentucky State Police

executed a search warrant on Simpson’s residence and seized 143 OxyContin 40 mg tablets, 8

OxyContin 20 mg tablets, 841 Xanax tablets, and $3,800 in cash. Simpson was arrested on state

drug charges and released from custody after he posted a property bond.


       In April 2002, more than two years before his arrest, Simpson had filed a civil action against

Knox County Jailer Preston Smith alleging civil rights violations. Simpson v. Smith, et al., No.

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No. 05-6357
United States v. Simpson

4:02-cv-00075 (W.D. Ky. Apr. 29, 2003) (transferred to the Eastern District of Kentucky, June 03,

2002, Simpson v. Smith, No. 6:02-cv-298). Preston Smith is the father of Assistant United States

Attorney Stephen Smith. In November 2002, AUSA Smith was present for an interview with Dale

Lewis, a convicted drug dealer who had entered into a cooperation agreement with the United States.

Lewis told Fred Baker, a DEA agent, that Simpson was a “customer” to whom Lewis had sold

methamphetamine. However, Simpson’s name only appears in one notation in Baker’s interview

notes, and there was no further investigation into Simpson’s drug activity based on the 2002

interview with Lewis.


       On June 25, 2004, after Simpson’s arrest on state drug charges, the supervising AUSA in the

London office, Martin Hatfield, completed a “Criminal Openings” form to initiate federal

proceedings against Simpson, and assigned the case to AUSA Smith. In July 2004, AUSA Smith

arranged for Detective Kersey to interview Lewis about Simpson’s drug activity. Lewis reported that

he had distributed large quantities of marijuana as well as six to eight ounces of methamphetamine

to Simpson. On July 26, 2004, Simpson was arrested on federal charges pursuant to the filing of a

criminal complaint by a DEA investigator. On July 28, 2004, AUSA Smith appeared on behalf of

the Government at Simpson’s initial appearance and moved that Simpson be detained pending trial.

Two days later, on July 30, 2004, Smith told AUSA West that Smith “had been advised” that

Simpson had filed a civil suit against Smith’s father. With Smith’s agreement, the case was

reassigned to AUSA West. AUSA West represented the Government from that point forward.




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United States v. Simpson

       AUSA West presented the charges against Simpson to the federal grand jury. The grand jury

returned a five-count indictment. Count One charged Simpson with conspiracy to distribute 100

kilograms or more of marijuana; Count Two charged Simpson with distributing fifty grams or more

of methamphetamine; Count Three charged Simpson with distribution of less than 250 grams of

marijuana; Count Four charged Simpson with possession with intent to distribute OxyContin; and

Count Five charged Simpson with possession with intent to distribute benzodiazepine.


       Prior to the pre-trial conference, Simpson filed a motion asking the court to dismiss the

indictment against him on grounds of vindictive prosecution and requesting an evidentiary hearing

on the allegation. Simpson argued that AUSA Smith had an improper stake in Simpson’s

prosecution because of Simpson’s then ongoing civil action against Smith’s father, and that Smith

acted unreasonably in arranging for Detective Kersey to interview Lewis in connection with

Simpson’s case. The district court denied Simpson’s motion on the grounds that Simpson had not

exercised a protected right upon which a vindictiveness claim could be based and, in the alternative,

that Simpson had presented no evidence of unreasonable conduct in his prosecution.


       After the district court denied Simpson’s motion, Simpson’s attorney served subpoenas on

AUSA Smith and a probation officer involved in the Lewis case. The Government asked the district

court to quash the subpoenas and to prohibit discussion of the vindictive prosecution claim at trial.

At a hearing on the Government’s motions, Simpson argued that the subpoenas were needed to

obtain information that was necessary for the effective cross-examination of Lewis. The court found

that the subpoenas were “intended merely for the purposes of harassment” and that all discoverable

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United States v. Simpson

information relevant to the cross-examination of Lewis was available without the subpoenas. The

court therefore granted the Government’s motion to quash the subpoenas. The court also ruled that

any questions regarding Simpson’s pending civil suit against Preston Smith and the allegation of

vindictive prosecution would not be permitted at trial because the vindictiveness allegation was not

relevant to the issue of Simpson’s guilt or innocence. The court noted that the issue of possible bias

on the part of Lewis should be addressed by asking him “directly” about what he hoped to gain in

return for his testimony.


       At Simpson’s trial, the Government’s evidence included, in part, testimony from Detective

Kersey, who testified about his investigation and arrest of Simpson; testimony from Marty Mills,

who testified that he purchased $20 of marijuana from Simpson; testimony from Lewis that he had

sold Simpson both marijuana and methamphetamine; and a report and testimony from a chemist for

the Kentucky State Police Crime Laboratory concerning the identity of the controlled substances

seized during the June 18, 2004, search of Simpson’s residence.


       At the close of the Government’s case, Simpson moved for a judgment of acquittal, arguing

that the evidence on all five counts was insufficient to support a conviction. The district court denied

the motion, holding that “all five counts should go to the jury for determination.” The jury returned

verdicts of guilty on Counts One, Three, Four, and Five, and not guilty on Count Two. The

Government moved to set aside the jury verdict as to Count Five because the jury instruction (like

the indictment) mistakenly referred to benzodiazepine instead of alprazolam, the pharmaceutical

designation for Xanax. Count Five was dismissed and Simpson was sentenced to 360 months on

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United States v. Simpson

each of Counts One and Four, and 120 months on Count Three, with all terms to run concurrently,

for a total sentence of 360 months.


                                                  II.


       A. Prosecutorial Vindictiveness


       Because Simpson has failed to establish two of the three elements required to create a

realistic likelihood of vindictiveness, the district court did not err by refusing either to dismiss the

indictment against Simpson or to conduct an evidentiary hearing on the vindictiveness allegation.


       Evaluation of Simpson’s contentions regarding vindictive prosecution, both that the district

court should have dismissed his indictment and that the court should have conducted an evidentiary

hearing on the claim, require essentially the same analysis. Simpson does not argue that he has proof

of “actual vindictiveness” in this case; rather, he argues that the facts he alleged gave rise to “a

realistic likelihood of vindictiveness.” Therefore, in order to determine whether the district court

should have conducted an evidentiary hearing on the claim, the question is whether Simpson’s

factual allegations support a prima facie claim of vindictiveness. United States v. Adams, 870 F.2d

1140, 1146 (6th Cir. 1989) (“[W]here there has been a prima facie showing of ‘a realistic likelihood

of vindictiveness,’ it is incumbent upon the district court to ‘conduct an evidentiary hearing where

the government’s explanations can be formally presented and tested.’” (dealing with a claim of

selective prosecution) (quoting United States v. Andrews, 633 F.2d 449, 457 (6th Cir. 1980) (en

banc) (vindictive prosecution))).

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United States v. Simpson

        Because Simpson has not alleged facts that show a realistic likelihood of vindictiveness that

would warrant an evidentiary hearing, it follows that the district court did not err in refusing to

dismiss Simpson’s indictment because of vindictive prosecution. Accordingly, the correctness of

the district court’s refusal to grant a hearing and the court’s refusal to dismiss the indictment against

Simpson may both be established by looking to see whether the facts alleged by Simpson support

each of the elements of the prima facie vindictive prosecution claim.


        A prima facie case of vindictive prosecution requires allegations of fact showing “(1)

exercise of a protected right; (2) a prosecutorial stake in the exercise of that right; (3)

unreasonableness of the prosecutor’s conduct; (4) the intent to punish the defendant for exercise of

the protected right.” United States v. Suarez, 263 F.3d 468, 479 (6th Cir. 2001). “Presumably, if

the first three elements are present, this may help establish grounds to believe the fourth is present,

that there is the required ‘realistic likelihood of vindictiveness,’ which the government would have

to rebut.” Id.


                 1) Exercise of a Protected Right


        We assume that Simpson adequately asserted a protected right in filing a civil rights suit. We

do not rely on the district court’s reasoning that “‘the protected right’ the prosecutor is alleged to

have intentionally impeded must be a constitutional right,”1 and, indeed, the Government does not


        1
         The district court also based its ruling on the alternative ground that Simpson “has not
presented any evidence of unreasonable conduct.” That alternative holding, which we uphold,
suffices for affirmance.

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United States v. Simpson

defend this aspect of the district court’s reasoning. While many cases refer to constitutional rights

only when restating the elements of prosecutorial vindictiveness, this court has explicitly recognized

that “a decision to prosecute may not be deliberately based upon the exercise of protected statutory

rights.” United States v. Adams, 870 F.2d 1140, 1145 (6th Cir. 1989). The protected right exercised

in Adams was the criminal defendant’s right to pursue an unrelated civil suit against another

government agency. Therefore, it appears that Simpson’s right to bring a civil action under 42

U.S.C. § 1983 is a protected right, the exercise of which may be the basis of a claim of prosecutorial

vindictiveness.


                  2) A Prosecutorial Stake in the Exercise of the Protected Right


       Because the underlying vindictiveness alleged by Simpson pertains to AUSA Smith

personally and exclusively, and because Smith was not responsible for any critical prosecutorial

decision in this case, the Government has rebutted any presumption of prosecutorial vindictiveness

that might arise from Smith’s stake in Simpson’s prosecution. We assume, for sake of argument,

that Simpson’s civil action against AUSA Smith’s father might constitute an impermissible conflict

with regard to AUSA Smith.2 However Simpson’s claim still fails this element of the prima facie



       2
        The Government asserts that there could have been no improper prosecutorial stake here
because Smith did not know about Simpson’s § 1983 action when Smith referred Detective Kersey
to Lewis. The district court accepted this assertion of fact, and found that, “Upon learning that
[Simpson] had previously initiated a pending civil matter against AUSA Smith’s father, Mr. Smith
recused himself and the matter was reassigned to AUSA Roger West.” If true, this fact would rebut
Simpson’s allegation of a prosecutorial stake even with respect to Smith. However, because the
record does not appear to reveal the evidentiary basis for this finding, we do not rely on it.

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No. 05-6357
United States v. Simpson

vindictiveness claim because this conflict is personal and peculiar to Smith. Accordingly, the alleged

conflict affects only those prosecutorial actions undertaken by Smith. The only such action alleged

by Simpson is Smith’s decision to arrange for Detective Kersey to interview Lewis. Even if it is

granted, for the sake of argument, that this action was undertaken for improper motives, the

Government’s decision to prosecute Simpson is not tainted by that motive because all decisions

actually relating to Simpson’s prosecution were made by individuals other than Smith.


       This court addressed the effect of the pre-trial recusal of potentially conflicted prosecutors

in Bragan v. Poindexter, 249 F.3d 476 (6th Cir. 2001). Bragan involved a vindictive prosecution

claim that arose from the decision to re-prosecute Bragan, a criminal defendant who had been

released from prison pursuant to a successful habeas corpus challenge to his initial conviction. Id.

at 478. Bragan alleged that the state chose to prosecute him a second time in retaliation for Bragan’s

public criticism of the government’s conduct during his first prosecution. Id. at 479-80. After

reinstating charges against Bragan, the prosecutorial office that had prosecuted Bragan in his first

trial and that had been the target of Bragan’s public criticism was disqualified and a new district

attorney pro tempore was appointed. Id. at 479. This court held that because the prosecutor pro

tempore did not share the original prosecutors’ stake in the case, and because the new prosecutor had

the authority to proceed or not proceed with the prosecution, the presumption of prosecutorial

vindictiveness based on the original prosecutors’ stake in reinstating the charges was rebutted. Id.

at 484-85.




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No. 05-6357
United States v. Simpson

       In this case, it is undisputed that supervising AUSA Hatfield made the initial decision to

prosecute Simpson and that AUSA West approved the indictment and presented the case to the grand

jury. Like the prosecutor pro tempore in Bragan, neither of these prosecutors shared Smith’s alleged

stake in the prosecution. Therefore, even if Smith’s stake in the prosecution were sufficient to

support a presumption of prosecutorial vindictiveness, the Government has successfully rebutted that

presumption.


               3) Unreasonableness of the Prosecutor’s Conduct


       The district court correctly held that Simpson offered no evidence of unreasonable conduct

to support his vindictiveness claim. Simpson asserts that AUSA Smith’s actions in contacting

Detective Kersey and arranging for Kersey to interview Lewis were unreasonable. To support this

allegation Simpson offers two additional assertions. First, Simpson argues that Smith’s actions were

unreasonable simply because Smith had a conflict of interest. However, this argument appears to

conflate the unreasonableness element of the vindictiveness claim with the prosecutorial stake

element.


       Next, Simpson asserts that there was no reasonable basis for Smith to believe that Lewis had

any “relevant information” about Simpson. However, in making this assertion, Simpson discounts

the fact that Lewis had identified Simpson as a “customer” in a interview taken in November 2002,

and that Smith was present for that interview. Smith contacted Detective Kersey about interviewing

Lewis only after state trafficking charges had been brought against Simpson in June 2004. Upon


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No. 05-6357
United States v. Simpson

learning of the later state charges against Smith, there was nothing unreasonable in suggesting that

Lewis might have had additional information related to those charges. Because Simpson has not

alleged any prosecutorial act that is objectively unreasonable, his vindictiveness claim fails to satisfy

this element of the prima facie claim.


                4) Intent to Punish the Defendant for Exercise of the Protected Right


        Finally, because Simpson cannot establish each of the first three elements of a prosecutorial

vindictiveness claim, there is no realistic likelihood of vindictiveness that would entitle Simpson to

a rebuttable presumption as to the fourth element and Simpson’s vindictiveness claim fails.


        B. Quashing of Subpoena and Limitation of Questioning


        The district court did not err either by quashing Simpson’s subpoena of AUSA Smith or by

ruling that questions regarding Simpson’s civil suit against Preston Smith were irrelevant and,

therefore, prohibited at trial. Simpson asserts that by quashing his subpoena of AUSA Smith the

court denied Simpson’s Sixth Amendment right to have compulsory process for obtaining witnesses

in his favor. However, the compulsory process right does not entitle the defendant to present

evidence that is irrelevant. See Taylor v. Illinois, 484 U.S. 400, 410 (1988) (“The accused does not

have an unfettered right to offer testimony that is incompetent, privileged, or otherwise inadmissible

under standard rules of evidence.”). From Simpson’s own argument on appeal, it is evident that

Simpson wished to question Smith about matters relevant to Simpson’s vindictive prosecution claim,

not the ultimate issue of Simpson’s guilt or innocence.

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United States v. Simpson

       In United States v. Abboud, 438 F.3d 554 (6th Cir. 2006), this court rejected an argument

very similar to the one that Simpson makes here. In Abboud, the criminal defendants sought to raise

the defense of selective prosecution. Id. at 579. However, in response to a pre-trial motion, the

district court held that the defendants were precluded from presenting evidence of selective

prosecution at trial. Id. at 562. This court upheld the district court’s ruling against the defendants’

Sixth Amendment challenge because “[t]he question of discriminatory prosecution relates not to the

guilt or innocence of [the defendants], but rather addresses itself to a constitutional defect in the

institution of the prosecution.” Id. at 579. There is nothing to distinguish Simpson’s vindictive

prosecution claim from the selective prosecution claim in Abboud in this respect. Because Simpson

sought to question Smith on an issue that was not before the jury, and which had already been

decided by the district court, the court was correct to quash the subpoena.


       For the same reason, the district court was correct to prohibit Simpson’s attorney from

exploring his vindictive prosecution theory at trial. Simpson argues that his inability to question

Lewis about the alleged vindictive prosecution denied Simpson the opportunity for effective cross-

examination. This court’s opinion in Abboud is again helpful in illuminating the flaw in Simpson’s

argument. In Abboud, this court observed that the defendants “seem[ed] to conflate the concepts of

witness bias and selective prosecution” and the court explained that “[s]elective prosecution is a

separate and distinct [constitutional] claim.” Id. at 580. The same is true here: Simpson’s claim of

prosecutorial vindictiveness is distinct from any bias that may have been used to impeach Lewis’s

testimony.


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No. 05-6357
United States v. Simpson

       Furthermore, the district court’s decision barring discussion of Simpson’s vindictive

prosecution claim did not prevent Simpson from questioning Lewis about any bias, prejudices, or

ulterior motives. In fact, Simpson’s attorney did question Lewis about his motive for testifying,

asking if Lewis “hop[ed] that [he] might get more time off for [his] testimony” against Simpson.

Simpson’s counsel also attacked Lewis’s credibility by highlighting the fact that Lewis did not

provide detailed information about his transactions with Simpson when Lewis was first interviewed

by Agent Baker in 2002, and only provided these details when interviewed by Detective Kersey in

2004. Accordingly, the record does not support Simpson’s claim that the district court’s ruling

concerning the inadmissibility of evidence relevant to Simpson’s vindictive prosecution theory

prevented Simpson’s counsel from effectively cross-examining Lewis.


       C. Sufficiency of the Evidence


       Simpson’s arguments that the district court erred by denying his motion for judgment of

acquittal based on the insufficiency of the evidence against him on Counts One, Three, and Four are

without merit. “The relevant question in assessing a challenge to the sufficiency of the evidence is

whether, after viewing 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. This court

will not weigh the evidence presented, consider the credibility of witnesses, or substitute our

judgment for that of the jury.” United States v. Jackson, 470 F.3d 299, 309 (6th Cir. 2006)

(quotation marks and citations omitted).



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United States v. Simpson

       Count One of the indictment against Simpson charged him with conspiracy to distribute

marijuana. Simpson challenges the sufficiency of the evidence supporting this charge by attacking

the credibility of the principal witness with respect to this charge, Dale Lewis. Simpson argues that

Lewis’s testimony concerning substantial marijuana sales to Simpson was not credible in light of

Lewis’s failure to mention any such transactions when Lewis was interviewed by Agent Baker two

years earlier. This argument fails because it asks this court to make a determination about the

credibility of Lewis as a witness. See Jackson, 470 F.3d at 309.


       Count Three charged Simpson with the sale of marijuana.             Simpson notes that the

Government did not introduce the laboratory report showing that the substance was marijuana.

However, this court has recognized that


       [t]he identity of a drug may be ascertained by circumstantial evidence . . . . Such
       circumstantial evidence may include evidence of the physical appearance of the
       substance involved in the transaction . . . , testimony that a high price was paid in
       cash for the substance, evidence that transactions involving the substance were
       carried on with secrecy or deviousness, and evidence that the substance was called
       by the name of the illegal narcotic by the defendant or others in his presence.
United States v. Wright, 16 F.3d 1429, 1439 (6th Cir. 1994) (quoting United States v. Scott, 725 F.2d

43, 45-46 (4th Cir. 1984)). Here, it is clear from the testimony of Marty Mills, the informant who

made the purchase upon which this charge is based, that Mills understood the substance he bought

from Simpson to be marijuana. Additionally, Detective Kersey testified that, after the purchase, he

looked at the bag of marijuana and identified it as marijuana. Based on this evidence, a reasonable

juror could have concluded that the substance involved in the sale was in fact marijuana.



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United States v. Simpson

        Simpson’s challenge to Count Four is similar to his argument with respect to Count Three.

Count Four charged Simpson with possession with intent to distribute OxyContin. Simpson notes

that the alleged OxyContin tablets had different markings: 143 were marked OC 40 while 8 were

marked OC 20. Simpson then notes that the crime lab chemist analyzed only a portion of one type

of tablet out of a total of 151 pills identified as OxyContin. Simpson argues that based on this

limited sampling, and given the existence of placebo pills, the Government did not establish the

identity of the substance in each tablet beyond a reasonable doubt.3 This argument is unavailing

because the chemist’s testimony that she was able to identify all the pills as OxyContin based on the

markings on the pills and the scientific test of the one sample was clearly sufficient to support the

inference that all of the tablets marked as OxyContin were in fact that controlled substance.


                                                   IV.


        For the foregoing reasons, Simpson’s conviction on all three counts is AFFIRMED.




        3
        Simpson also draws the court’s attention to the fact that the chemist’s original lab report
misidentified the OC 40 pills as OC 80s. The chemist testified that this was the result of a
typographical error. Given that this court will not weigh the evidence presented at trial, it is not clear
what significance Simpson believes this fact to have in this appeal. See Jackson, 470 F.3d at 309.

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