United States of America v. Charles Massengill

NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
File Name: 19a0233n.06
Case No. 17-5249
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
CHARLES MASSENGILL,
Defendant-Appellant.
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ON APPEAL FROM THE UNITED
STATES DISTRICT COURT FOR
THE EASTERN DISTRICT OF
TENNESSEE
BEFORE: SILER, SUTTON, and WHITE, Circuit Judges.
SILER, Circuit Judge. A Tennessee jury found Charles Massengill guilty of five charges:
two counts of possession with intent to distribute controlled substances, conspiracy to possess
controlled substances with intent to distribute, possession of a firearm in furtherance of a drug
trafficking crime, and felon in possession of a firearm. Massengill appeals his conviction and
sentence, challenging: (1) the denial of his motion to suppress; (2) the sufficiency of the evidence
relating to his conspiracy conviction; (3) the denial of his motion for a mistrial; (4) his obstruction-
of-justice sentencing enhancement; and (5) the testimony of the investigating detective.
We AFFIRM.

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I.
Massengill was convicted in Georgia of armed robbery and aggravated assault, imprisoned,
and released in 2010. He requested his parole be transferred from Georgia to Tennessee. One
component of a transfer request is the completion of a parole certificate, a standard form to be
signed by the parolee. Massengill signed his parole certificate in 2012, which included his consent
to “a search without a warrant of his person, vehicle, property or place of residence by any
probation or parole officer or law enforcement officer at any time without reasonable suspicion.”
In 2014, the Bradley County Sheriff’s Department received information from an informant
who had smoked methamphetamine with Massengill that Massengill was distributing
methamphetamine from his residence in Cleveland, Tennessee, and was known to possess a gun.
After presenting Massengill with a copy of the parole certificate, detectives searched his residence
and found more than a kilogram each of methamphetamine and marijuana, a handgun, over
$100,000 in cash, and other drug-related materials. Detectives advised Massengill of his Miranda
rights, and he confirmed his understanding of those rights. A detective then questioned Massengill,
who stated that he had traveled to Atlanta three times to purchase methamphetamine.
Massengill was indicted on five charges: two counts of possession with intent to distribute
controlled substances, conspiracy to possess controlled substances with intent to distribute,
possession of a firearm in furtherance of drug trafficking, and being a felon in possession of a
firearm. He moved to suppress the evidence recovered during the search and his statement
following the search.
After an evidentiary hearing, the magistrate judge recommended denying the motion.
Relying on United States v. Payne, 588 F. App’x 427 (6th Cir. 2014), she found the parolee search
reasonable and Massengill’s statements admissible. The district court adopted the magistrate

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judge’s recitation of the facts, overruled Massengill’s objections, and denied the motion to
suppress.
Prior to trial, Massengill moved to exclude evidence regarding the nature of his prior
convictions, his status as a parolee, and any information received from the confidential informant.
During the final pretrial conference, the government stated that the informant would not testify
and that it did not intend to offer any evidence from the informant or about Massengill’s parole
during its case-in-chief. Massengill agreed to stipulate that he had a prior felony conviction.
During direct examination by the United States, Detective Chad Ownby twice provided
nonresponsive answers that resulted in testimony about information the sheriff’s office had
received from the informant and Massengill’s parolee status—the issues which the government
had agreed not to elicit testimony about during its case-in-chief. In a sidebar shortly following the
second nonresponsive answer, the defense objected and moved for a mistrial. The district court
gave a curative instruction regarding the nonresponsive answers, reserved ruling on the motion for
mistrial, and warned Ownby outside the jury’s hearing “not to repeat things . . . that you heard
from the confidential informant. . . . [T]estify about evidence that you perceived.” The district
court ultimately denied the motion for a mistrial after reviewing Ownby’s testimony and noting
the defense’s failure to contemporaneously object and the curative instruction it had issued.
The prosecution introduced two recorded calls that Massengill made from jail to Shannon
Hughes the day after his arrest. During the calls, Massengill and Hughes discussed drugs which
were not discovered during the search and a hiding place that Massengill asked Hughes to empty.
Hughes told Massengill that it would “be taken care of[,]” which Massengill said would “help get
some money on my books, too.” Massengill also told Hughes that the police wanted to “get in”
his phone, and Hughes told him she had “hacked” the cell phone account online, “changed the

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password,” and reported the phone stolen—consistent with Massengill’s refusal to allow the
detectives to search his phone, saying they would have to “work for” its contents. The two also
discussed hiding Massengill’s vehicle and transferring the title to his daughter so that the
government could not “snatch it.”
Detective Marshall Hicks testified that Massengill’s cell phone revealed text messages
consistent with drug trafficking. These included messages received from individuals asking him
to “fix [them] a sack,” saying they “need[ed]” a “half O” or a “teenager,” or asking about prices
or the availability of “green” or “Xanaxes [sic].”
Tennessee Bureau of Investigation Special Agent Mark Delaney testified as an expert
witness, explaining that the terms “sacks” and “teenagers” were slang terms specifically associated
with methamphetamine distribution—for example, he testified that a “teenager” refers to a
sixteenth of an ounce of methamphetamine—and that “green” ordinarily referred to marijuana. He
additionally stated that the price quoted by Massengill in the text messages—$700 for half an
ounce—was consistent with his knowledge about the street price of methamphetamine in east
Tennessee. Delaney also testified that the kilogram of methamphetamine recovered from
Massengill’s residence represented a distribution quantity, which would then “typically [be] split
. . . into probably ounce quantities. . . .” He further identified Atlanta as a common source city for
methamphetamine and explained the distribution purposes for the various paraphernalia found in
Massengill’s bedroom.
At the close of the government’s case-in-chief, Massengill sought a judgment of acquittal
under Fed. R. Crim. P. 29 on the conspiracy charge, among others. The United States identified
three categories of coconspirators: a source in Atlanta, known as “Chuck,” the customers who
purchased methamphetamine from Massengill, and Hughes, whom Massengill instructed to

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remove drugs from the hiding place at his residence. The district court denied the motion both
initially and when it was renewed at the close of all evidence. The jury convicted Massengill on
all counts.
The probation office’s presentence report (PSR) deemed Massengill responsible for both
the drugs seized from his residence—1.116 kilograms of methamphetamine and 1.3406 kilograms
of marijuana—as well as another 1360.78 grams of a methamphetamine mixture, based on his
admitted drug purchases in the months prior to his arrest. Those quantities resulted in a base
offense level of 34.1 The probation office also applied a two-level enhancement for obstruction of
justice, based on the calls with Hughes, leading to an adjusted offense level of 36. With a criminal
history category of IV, the resulting sentencing guideline range was 262-327 months’
imprisonment for the drug offenses, followed by the mandated consecutive 60-month term for the
§ 924(c) violation, for an effective guidelines range of 322-387 months’ imprisonment.
Massengill objected to the PSR, initially disputing various facts and objecting to the
conclusion that a variance was not warranted; he later additionally objected to “all factual
allegations” in the PSR and to the obstruction-of-justice enhancement. He further requested a
downward variance based on his history and characteristics—specifically his age, then 64—which
he argued warranted a sentence no greater than the fifteen-year mandatory minimums.
The district court overruled Massengill’s objections and accepted the guidelines
calculations in the PSR. It reviewed the 18 U.S.C. § 3553(a) factors, allowed the defendant to
speak, and sentenced him to a below-guidelines total term of 264 months’ imprisonment.
1 The probation office did not include the converted amount of the money seized from
Massengill’s residence because the additional quantity would not have affected the guideline
range.

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II.
A.
Massengill contends that the district court failed to consider the existence of a reasonable
suspicion to conduct the parolee search, and that the search was “simply a device to circumvent
the search warrant application process.”2 When reviewing a district court’s decision on a motion
to suppress, we review factual conclusions for clear error and conclusions of law de novo. United
States v. Smith, 594 F.3d 530, 535 (6th Cir. 2010) (citation omitted). Where, as here, the motion
was denied, we “must consider the evidence in the light most favorable to the government.” United
States v. Erwin, 155 F.3d 818, 822 (6th Cir. 1998) (en banc) (citation omitted).
There are “exceptions to the general rule that a warrant must be secured before a search is
undertaken. . . .” California v. Carney, 471 U.S. 386, 390 (1985). One exception relevant here,
provides that “the warrant and probable cause requirements generally do not apply to searches of
parolees, probationers[,] or their residences.” United States v. Smith, 526 F.3d 306, 308 (6th Cir.
2008) (citing Samson, 547 U.S. at 857; United States v. Knights, 534 U.S. 112, 118 (2001)). As
the district court noted, a particular Fourth Amendment reasonableness analysis applies to parolee
searches—a totality of the circumstances test that requires “assessing, on the one hand, the degree
2 Massengill argues that the district court failed to follow the two-factor test established in
United States v. Doxey, 833 F.3d 692, 703 (6th Cir. 2016); as the government points out, however,
this argument fails on two fronts. First, this court decided Doxey in August 2016, more than a year
after the district court’s decision in this case. Second, the search condition at issue in Doxey was
based on a Michigan statute, not, as here, the Tennessee parole certificate signed by the defendant.
As this court has previously noted, there are “two distinct analytical approaches under which a
warrantless probationer [or parolee] search may be excused.” United States v. Herndon, 501 F.3d
683, 688 (6th Cir. 2007) (citation omitted). The first, characterized as “special need” cases,
addresses statutes and regulations permitting searches under the two-prong approach advocated by
Massengill. See, e.g., Griffin v. Wisconsin, 483 U.S. 868 (1987). The second applies a totality of
the circumstances analysis to instances involving defendants subject to a search condition. See,
e.g., Samson v. California, 547 U.S. 843 (2006). Massengill’s argument in favor of Doxey
confuses the two approaches, advocating for the first where, here, the second is applicable.

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to which [the search] intrudes upon an individual’s privacy and, on the other, the degree to which
it is needed for the promotion of legitimate governmental interests[]”—rather than an examination
of “individualized suspicion.” Samson, 547 U.S. at 848, 855 n.4 (internal quotation marks and
citation omitted). The Court in Samson thus “conclude[d] that the Fourth Amendment does not
prohibit a police officer from conducting a suspicionless search of a parolee.” Id. at 857.
Samson governs here, as Massengill signed a clear and unambiguous warrantless search
condition on the parole certificate, diminishing his reasonable expectation of privacy. Given
Tennessee’s interest in adequately supervising Massengill’s parole status, the parolee search of his
residence was reasonable, and the district court’s denial of Massengill’s suppression motion is
affirmed.
B.
Massengill next attacks the sufficiency of the evidence on the charge of conspiracy to
possess methamphetamine with intent to distribute. “To sustain a conviction for drug conspiracy
. . . the government must prove beyond a reasonable doubt: (1) an agreement to violate drug laws;
(2) knowledge of and intent to join the conspiracy; and (3) participation in the conspiracy.” United
States v. Gardner, 488 F.3d 700, 710 (6th Cir. 2007) (citation omitted).
Massengill argues that “the government relied exclusively on [his] unrecorded statements”
regarding his methamphetamine purchases from his source in Atlanta “as its evidence to support
the conspiracy count.”3 However, as the government noted, “evidence of repeat purchases
provides evidence of more than a mere buyer-seller relationship.” United States v. Brown,
332 F.3d 363, 373 (6th Cir. 2003) (citation omitted). Further, the evidence at trial also implicated
3 Despite being represented by counsel, Massengill entered a pro se affidavit disputing,
inter alia, that he had admitted making three trips to Atlanta to purchase kilogram quantities of
methamphetamine.

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at least two additional coconspirators: Hughes and Massengill’s customers. Viewing the evidence
in the light most favorable to the prosecution and making all reasonable inferences and credibility
choices in support of the jury’s guilty verdict, a rational trier of fact could have found that
Massengill agreed to violate drug laws, knowingly and intentionally joined the conspiracy, and
participated in the conspiracy, with one or more of the implicated coconspirators, beyond a
reasonable doubt. Massengill’s own admission regarding buying methamphetamine from Chuck
in Atlanta is itself persuasive evidence. Likewise, Massengill’s jailhouse calls with Hughes can
reasonably be construed to refer to drug sales, connecting both Hughes and potential customers to
the conspiracy. Overall, Massengill has failed to demonstrate that his conspiracy conviction is not
supported by substantial and competent evidence.
C.
Third, Massengill argues that the district court abused its discretion by denying his motion
for a mistrial based on Ownby’s disclosure of Massengill’s parole status and statements regarding
the use of methamphetamine in his residence. The United States counters that the contested
testimony constituted only a small fraction of the evidence against Massengill and a limiting
instruction that the jury disregard the testimony was given, rendering the denial proper.
We review a district court’s denial of a motion for mistrial under the abuse-of-discretion
standard. United States v. Ward, 190 F.3d 483, 491 (6th Cir. 1999) (citations omitted). In
determining whether improper statements warrant granting a mistrial, we consider:
(1) whether the remark was unsolicited, (2) whether the government’s line of
questioning was reasonable, (3) whether a limiting instruction was immediate,
clear, and forceful, (4) whether any bad faith was evidenced by the government,
and (5) whether the remark was only a small part of the evidence against the
defendant.
Zuern v. Tate, 336 F.3d 478, 485 (6th Cir. 2003) (citing United States v. Forrest, 17 F.3d 916, 920
(6th Cir. 1994)). Our “primary concern is fairness to the defendant.” Forrest, 17 F.3d at 919.

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As noted above, the contested testimony was nonresponsive to the government’s
questioning on direct, and was taken from a reasonable line of questioning—regarding the officer’s
involvement in the execution of the search and what the target of the search was. Following the
second nonresponsive answer, a sidebar was called in which the defense objected, and the district
court gave a curative instruction immediately thereafter. Massengill’s claim that “[t]he
prosecution’s first witness engaged in a calculated effort” to introduce this testimony is mere
conjecture. The same can be said of his allegation that the limiting instruction “only made matters
worse by drawing the jurors’ attention to the prejudicial testimony.” Moreover, the evidence
offered by the prosecution—including evidence of more than a kilogram each of
methamphetamine and marijuana, paraphernalia related to the sale of controlled substances, a
loaded firearm, and Massengill’s own admissions regarding trips to buy drugs from a source in
Atlanta—was extensive. Ownby’s statements were a small part of the evidence against the
defendant. Thus, four of the Forrest factors weigh in favor of the government, and Massengill’s
unsubstantiated allusion to bad faith is not enough to support his claim on appeal. The district
court’s denial of the defense motion for mistrial is therefore affirmed.
D.
Massengill next contends that the government’s direct examinations of Ownby and Hicks
regarding Massengill’s failure to file a civil forfeiture claim to the money seized in the search
violated Massengill’s Fifth Amendment privilege against self-incrimination.
During its direct examination of Ownby, the prosecution asked whether there was any
“opportunity for the defendant to challenge the seizure of [the] money [seized in the search].”
Ownby replied that Massengill “could have filed his forfeiture notice within 30 days of the money
being seized[,]” but that he had not done so. Similarly, during the direct examination of Hicks,

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the government began a line of questioning as to the lack of a claim following the money’s seizure.
Neither time did the defense object; rather, the district court sua sponte raised the issue during a
recess, noting that there had “been some testimony . . . elicited by both sides without objection,”
including regarding “Massengill’s choice not to oppose the seizure or the forfeiture.” The court
noted that while no objection had been raised, and although it “ha[d] not researched this,” it thought
“there’s at least an argument that that could be a Fifth Amendment issue.” After tabling the issue,
the defense put on evidence during its case-in-chief regarding the source of the money. The court
noted that such testimony “t[ook] some sting out of it[,]” but nonetheless elected to give an
instruction that the jury not consider the testimony by regarding the potential forfeiture claim as
evidence of Massengill’s guilt.
“[W]hen a party fails to object to evidence at the trial court, his contention on appeal will
prevail only if the trial court’s evidentiary decision was plainly erroneous, thus affecting his
substantial rights and resulting in a miscarriage of justice.” United States v. Evans, 883 F.2d 496,
499 (6th Cir. 1989) (citing Fed. R. Crim. P. 52(b)) (citations omitted).
Juries are presumed to have followed the trial court’s instructions. United States v. Carter,
520 F. App’x 377, 385 (6th Cir. 2013) (citing Zafiro v. United States, 506 U.S. 534, 540 (1993)).
Massengill has offered no reason to abandon this presumption and therefore cannot demonstrate
that the testimony actually affected his substantial rights. His argument on appeal is thus rejected,
and the district court’s corrective actions affirmed.
E.
Finally, Massengill appeals the district court’s application of an obstruction-of-justice
sentencing enhancement because it resulted in a procedurally unreasonable sentence. Massengill
claims that the factual basis contained in the PSR “is not an accurate rendition of [the] recorded

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telephone conversations[]” and the government therefore failed to meet its burden of proving the
applicability of an obstruction-of-justice enhancement by a preponderance of the evidence.
Sentences are reviewed by this court “under a deferential abuse-of-discretion standard.”
Gall v. United States, 552 U.S. 38, 41 (2007). The imposition of the obstruction-of-justice
enhancement, specifically, is reviewed in three parts:
First, we review the factual determinations made by the district court for clear error.
Second, the determination that certain conduct constitutes obstruction of justice,
which is a mixed question of law and fact, is reviewed de novo. Third, because the
application of the obstruction enhancement is non-discretionary, the actual
imposition of the enhancement is reviewed de novo.
United States v. Baggett, 342 F.3d 536, 540-41 (6th Cir. 2003) (internal citations omitted). We
also “give due deference to the district court’s application of the guideline to the facts.” United
States v. Vasquez, 560 F.3d 461, 473 (6th Cir. 2009) (citing Buford v. United States, 532 U.S. 59,
66 (2001); United States v. Cline, 362 F.3d 343, 350 (6th Cir. 2004)).
A two-level enhancement for obstruction of justice is appropriate where “the defendant
willfully obstructed or impeded, or attempted to obstruct or impede, the administration of justice
with respect to the investigation, prosecution, or sentencing of the instant offense of
conviction. . . .” USSG § 3C1.1. Application Note 4 of § 3C1.1 includes in its “non-exhaustive
list of examples of the types of conduct to which this adjustment applies” instances in which the
defendant “destroy[ed] or conceal[ed] or direct[ed] or procur[ed] another person to destroy or
conceal evidence that is material to an official investigation or judicial proceeding . . . or attempting
to do so. . . .” USSG § 3C1.1 cmt.4. The government has the burden of proving the applicability
of the enhancement by a preponderance of the evidence. United States v. Dunham, 295 F.3d 605,
609 (6th Cir. 2002) (citations omitted).

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The PSR included the obstruction-of-justice enhancement due to Massengill’s telling
“Shannon Hughes to get the remainder of his drugs out of the hole in the back yard of his
residence.” Massengill objected to that finding, both in writing and at the sentencing hearing. At
sentencing, the district court overruled Massengill’s objection and accepted the guidelines
calculations in the PSR, specifically referencing the jailhouse calls offered into evidence by the
prosecution as “very clearly support[ing] this enhancement.”
Massengill’s argument includes conjecture that the calls were not about retrieving
controlled substances at all, and concludes that “[s]ince the competing inferences to be drawn from
the jail calls are evenly balanced, the government fell short of proving obstruction of justice under
the preponderance standard.” However, Massengill offered no competing evidence regarding the
context of the calls, and the context he references as leading to “competing inferences” on the
calls—Massengill’s expressions of concern about people “obtaining unauthorized entrance into
his residence and control over his belongings[]”—was included in the record considered by the
district court. The district court’s factual determination that the jailhouse calls proved, by a
preponderance of the evidence, the propriety of the enhancement is not, therefore, clearly
erroneous. It further appears that, given the factual finding that the jailhouse call reflected
Massengill directing Hughes to remove controlled substances from his residence, such actions fall
within the examples provided in the enhancement’s commentary, such that the conduct constitutes
obstruction of justice. USSG § 3C1.1 cmt.4. Finally, under the third consideration made by this
court on review, the imposition of the enhancement was sound.
AFFIRMED.

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HELENE N. WHITE, Circuit Judge, concurring in part and dissenting in part.
I concur in Parts II-A, II-C, II-D, and II-E of the majority opinion. I dissent, however, from
Part II-B, because I do not agree that the government presented sufficient evidence for a reasonable
juror to find Massengill guilty of conspiracy to possess with the intent to distribute
methamphetamine. I would therefore reverse the district court’s order denying Massengill’s
motion for judgment of acquittal, vacate his sentence, and remand for re-sentencing on the
remaining counts.
“To establish a drug conspiracy, the government must prove an agreement to violate the
drug laws—i.e., to manufacture or distribute drugs—and that each conspirator knew of, intended
to join, and participated in the conspiracy.” United States v. Beals, 698 F.3d 248, 258–59 (6th Cir.
2012) (citation omitted). The government has the burden to prove that “each alleged member
agreed to participate in what he knew to be a collective venture directed toward a common goal.”
Id. at 259 (quoting United States v. Warner, 690 F.2d 545, 549 (6th Cir. 1982)).
The government argues, and the majority agrees, that the evidence at trial showed a
conspiracy between Massengill and “Chuck,” the source of his methamphetamine. Following his
arrest, Massengill was questioned by Officer Maskew of the Bradley County Sheriff’s Department.
Officer Maskew testified:
Q: Did you ask the defendant about his source of methamphetamine?
A: I did.
Q: What did the defendant say about his source?
A: He stated that his source was a white male named Chuck in Atlanta.
. . .
Q: Did you ask how the defendant retrieved methamphetamine from his source in
Atlanta?
A: Yes.
Q: And what did he say?

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A: He would drive to Atlanta and meet with Chuck and he did so on at least three
occasions, each time getting a pound of ice methamphetamine.
Q: Did he say how frequently? Did you say—did you repeat how frequently the
defendant—
A: I asked him—
Q: Okay.
A: —how many times, and he said at least three.
Q: And at what frequency? How regularly did he go to make those three trips?
A: It was within the—the two or three months preceding this incident.
Q: Did you ask the defendant about how much he had paid for the
methamphetamine that was found in his closet?
A: I did.
Q: What was the defendant’s answer?
A: $20,000.
(R. 172, PID 2278–80.) Officer Collins testified to the same.
This was the entirety of the government’s evidence of a conspiracy between Massengill
and Chuck to possess with the intent to distribute methamphetamine. The government provided
no other information about Chuck. The record does not reveal the scope or nature of his drug
operation or suggest that he had any agreement or understanding with Massengill regarding the
distribution of the drugs. The jury heard only that Massengill purchased a pound of
methamphetamine from Chuck on three separate occasions, over the course of two or three months.
Although we have found that in chain conspiracies, “the interdependence of the enterprise” gives
rise to an inference of conspiracy, United States v. Spearman, 186 F.3d 743, 746 (6th Cir. 1999),
there is no evidence that Chuck depended on Massengill for business (or vice versa), making such
an inference wholly speculative. Nothing in the record suggests that the Massengill and Chuck
pooled resources, supplies, or equipment in support of a shared goal. See United States v. Walls,
293 F.3d 959, 967 (6th Cir. 2002). Nor does it appear that Chuck fronted drugs to Massengill on
credit. See United States v. Henley, 360 F.3d 509, 514 (6th Cir. 2004). In other words, there is

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simply no evidence—either direct or circumstantial—to support the conclusion that Massengill
and Chuck “agreed to participate in what [they] knew to be a collective venture directed toward a
common goal.” Beals, 698 F.3d at 259.
The majority relies on the fact that Massengill purchased large quantities of drugs from
Chuck, but this alone is insufficient to support the inference that a conspiracy existed between
them. Although we have said in prior cases that “[e]vidence of repeat purchases provides evidence
of more than a mere buyer-seller relationship,” and that evidence of a “large volume of narcotics
creates an inference of conspiracy,” United States v. Brown, 332 F.3d 363, 373 (6th Cir. 2003)
(citations omitted), none of our cases has upheld a conspiracy conviction on facts similar to those
here. In Brown, multiple witnesses testified that they bought cocaine from the defendant, that the
defendant helped them process the cocaine into crack, and that the defendant gave drugs to other
conspirators on consignment. Id. In United States v. Anderson, in addition to evidence of multiple
large purchases, a law-enforcement agent testified that the defendant named the head of the
conspiracy as his supplier, and that police found a pager in the defendant’s apartment connecting
him to the conspiracy. 89 F.3d 1306, 1311 (6th Cir. 1996). And in both Brown and Anderson, the
defendant merely disputed his connection to a conspiracy that was clearly established by other
evidence. Brown, 332 F.3d at 372–73 (conspiracy involving at least seven people); Anderson, 89
F.3d at 1308–09 (twenty-nine-member “Best Friends” narcotics organization). Here, there was no
evidence that Chuck was involved in a drug conspiracy.
The case law simply does not support the proposition that evidence of three drug sales
involving large quantities, with nothing more, is sufficient to show that the buyer and the seller
agreed to form a conspiracy to possess with the intent to distribute the drugs. To hold otherwise
would convert every large repeat drug sale into a de facto distribution conspiracy. See United

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States v. Johnson, 592 F.3d 749, 754 (7th Cir. 2010) (“[W]e have cautioned against conflating the
underlying buy-sell agreement with the drug-distribution agreement that is alleged to form the
basis of the charged conspiracy. To support a conspiracy conviction, there must be sufficient
evidence of an agreement to commit a crime other than the crime that consists of the sale itself.”
(citation and internal quotation marks omitted)).
Nor is the evidence sufficient to establish that Massengill agreed to form a drug conspiracy
with Shannon Hughes. Two recorded jailhouse phone calls between Massengill and Hughes were
played at trial. During the first call, Massengill described a stash of marijuana that the police had
not yet found. In the second call, the two discussed a hiding hole in Massengill’s back yard.
Massengill asked Hughes to remove the contents of the hole, and Hughes responded, “It’ll be taken
care of.” (Ex. 40-K1, 5:30–6:20, 12:09–13:02.) Masengill then stated, “That way it’ll help get
some money on my books, too.” (Id.)
The jailhouse calls show that Hughes knew that Massengill possessed a large quantity of
marijuana, and her statement that the hidden evidence would be “taken care of” evinces agreement
to move unspecified evidence out of the reach of law enforcement. However, the calls do not
support a conclusion, beyond a reasonable doubt, that Hughes agreed to participate in what she
knew was a conspiracy to distribute methamphetamine. No evidence was introduced showing that
Hughes agreed to purchase meth, possess meth, or sell meth. Law-enforcement officers later found
the hiding hole empty, and were unable to verify what was previously inside. And even assuming
that the hiding hole contained drugs, the jailhouse calls only make reference to an undiscovered
cache of marijuana, not methamphetamine. Although the calls show a concert of action between
Massengill and Hughes, coordinated action alone is insufficient to prove a conspiracy to distribute
illegal drugs. See United States v. Sliwo, 620 F.3d 630, 633–37 (6th Cir. 2010) (renting van for

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co-conspirators and serving as look-out not sufficient to show agreement to join distribution
conspiracy).
Finally, the text messages between Massengill and his customers do not establish a
conspiracy. The messages do not indicate agreement or intent to join a conspiracy, or suggest
involvement in Massengill’s drug activity other than the mere purchase of drugs. Agent Mark
Delaney explained that the terminology in the texts were slang terms used in the drug trade to
describe amounts of drugs that could be sold for personal use—“teenagers,” for example, refers to
a sixteenth of an ounce of methamphetamine, less than two grams, which is hardly a distribution-
level quantity. Thus, the text messages do not suggest that Massengill and his customers had more
than a mere buyer-seller relationship.
For these reasons, I conclude there was insufficient evidence from which a reasonable juror
could find Massengill guilty of conspiracy to possess with the intent to distribute
methamphetamine, and respectfully dissent as to Part II-B.

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