United States of America v. Michael Wallace

RECOMMENDED FOR PUBLICATION
Pursuant to Sixth Circuit I.O.P. 32.1(b)
File Name: 22a0225p.06
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
MICHAEL WALLACE,
Defendant-Appellant.
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No. 21-6011
Appeal from the United States District Court for the Eastern District of Kentucky at London.
No. 6:20-cr-00011-1—Robert E. Wier, District Judge.
Decided and Filed: October 12, 2022
Before: SUTTON, Chief Judge; BOGGS and KETHLEDGE, Circuit Judges.
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COUNSEL
ON BRIEF: Amy Lee Copeland, ROUSE + COPELAND, LLC, Savannah, Georgia, for
Appellant. Tovah R. Calderon, Natasha N. Babazadeh, UNITED STATES DEPARTMENT OF
JUSTICE, Washington, D.C., for Appellee.
SUTTON, C.J., delivered the opinion of the court in which BOGGS and KETHLEDGE,
JJ., joined. SUTTON, C.J. (pp. 8–10), delivered a separate concurring opinion.
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OPINION
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SUTTON, Chief Judge. Michael Wallace, a former Kentucky constable, lied on warrant
applications, threatened suspects, kept distribution levels of methamphetamine in his house, and
planted drug evidence to facilitate a pattern of false arrests. A jury convicted him of conspiring
to violate the civil rights of several citizens and of possessing methamphetamine with intent to
distribute it. Wallace challenges his drug conviction and sentence. We affirm.
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No. 21-6011 United States v. Michael Wallace Page 2
I.
The people of Pulaski County, Kentucky, elected Wallace to serve as a constable,
entrusting him with law enforcement authority equal to a sheriff’s. Due to the limited resources
available to constables, Wallace worked primarily out of his home and used funds seized during
arrests to pay for expenses such as vehicle maintenance, new uniforms, and ammunition. The
Somerset Police Department also provided equipment donations and permitted him to use the
Department’s evidence room to store items he had seized.
In 2018, Wallace pulled over Danny Hughes “for no apparent reason.” R.213 at 224.
After Wallace found some drugs on Hughes, he planted baggies and scales, elevating the
potential charge from possession to distribution and enabling the seizure of Hughes’s car.
Later that year, Wallace stopped Timothy Sizemore for expired tags and called in
Somerset officers for backup. Wallace claimed that his K-9 had alerted for drugs, prompting the
officers to search Sizemore’s car. The officers thoroughly searched the car and failed to find any
contraband. At that point, Wallace, who did not participate in the initial search, approached the
car saying to his fellow officers, “watch this shit.” Id. at 35–36. After briefly searching the
vehicle, Wallace produced a pill bottle. When Sizemore objected that the bottle was not his,
Wallace responded that, if Sizemore thought “we planted this on you,” he would “take
[Sizemore] back to the cruiser and kick [his] ass.” Id. at 35–36, 95–96. In a subsequent search
warrant, Wallace wrote that he had found “Percocet prescription tablets and suspected
methamphetamine . . . under the driver’s seat.” R.214 at 71. Concerned about Wallace’s
purported discovery of methamphetamine in a vehicle that had already been carefully searched,
the officers told a supervisor what happened, and he brought in the FBI.
The FBI started an undercover sting operation. An FBI informant contacted Wallace
through a drug tip line and reported that a “black guy” driving a “black truck” at the Somerset
Mall might be trafficking methamphetamine. R.213 at 110. In accord with the planted tip, an
FBI task force officer posing as “Kareem Pinkney” parked at the Somerset Mall with $11,000 in
his front pocket. Id. at 131. Wallace and another constable arrived at the mall and immediately
pulled Pinkney from his truck, searched his pockets, and looked through his phone. Claiming
that his K-9 had alerted for drugs, Wallace also searched Pinkney’s truck. Pinkney passed field

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No. 21-6011 United States v. Michael Wallace Page 3
sobriety tests administered by a Burnside police officer. The officer told Wallace he was not
going to arrest Pinkney because there “wasn’t much there.” Id. at 208. Wallace nevertheless
arrested Pinkney for public intoxication and booked him into jail, where he remained until the
FBI secured his release.
In late 2019, Kayla Dobbs was returning to Pulaski County along with three friends after
a night on the town in Lexington. The fun ceased when the designated driver pulled to the side
of the road to clean a passenger’s vomit. Wallace pulled up behind the car and ordered the
intoxicated Dobbs to drive it to a nearby parking lot. Dobbs protested, saying she had been
drinking. Wallace told her to drive the car anyway and said she would not “get in trouble.”
R.214 at 20. As soon as Dobbs started the car, however, Wallace activated his lights and pulled
her over. Wallace removed her from the car, told her that “we can make all of this go away,”
and “stuck his hand up [her] skirt and felt [her] butt.” Id. at 24, 27. Relying on a purported alert
from his ever-reliable K-9, Wallace searched the car. He did not find any contraband, but
proceeded to arrest Dobbs for DUI.
In early 2020, FBI agents confronted Wallace. He denied having any controlled
substances in his home but consented to a search. When asked about his safe, Wallace stated
“[t]here’s nothing in there.” R.215 at 117. The tangled web began to unravel when agents found
5.9 grams of methamphetamine in the safe, as well as nearly 30 firearms around the property.
A grand jury charged Wallace with conspiracy to violate civil rights, 18 U.S.C. § 241,
and possession of methamphetamine with intent to distribute it, 21 U.S.C. § 841(a)(1). A jury
convicted on both counts.
The pre-sentence report recommended a two-level enhancement for Wallace’s possession
of a dangerous weapon during a drug trafficking crime. U.S.S.G. § 2D1.1(b)(1). Wallace
objected, claiming that his possession of firearms during his law enforcement duties was
unconnected to his drug conviction. The court found that Wallace possessed an “arsenal of
firearms” at his home alongside the methamphetamine, that Wallace was armed when he
pretended to find a pill bottle containing drugs in Sizemore’s car, and that the guns were
connected to his crime through their power to intimidate the victims on whom he planted

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No. 21-6011 United States v. Michael Wallace Page 4
evidence. R.206 at 20. The enhancement led to an advisory Guidelines range of 188 to 235
months.
In selecting an appropriate sentence, the court emphasized that Wallace refused to take
responsibility for his crimes, targeted victims on the “low[est] rung” of society, and engaged in a
pattern of dishonesty and “stomach-turning” abuse of his office. Id. at 80, 82. The court
nonetheless varied downward from the bottom of the Guidelines range and imposed a sentence
of 140 months. The court concluded that “importing the full weight of that meth” would
overstate Wallace’s culpability given the Guidelines’ focus on the harm done by
methamphetamine to users, not the harm from planting it to secure false arrests. Id. at 88.
On appeal, Wallace challenges the sufficiency of the evidence supporting his drug
conviction and the dangerous weapon enhancement supporting his sentence.
II.
A.
Sufficiency of the evidence. To convict Wallace for the drug offense, the government had
to establish that he knowingly possessed methamphetamine with intent to distribute it. 21 U.S.C.
§ 841(a)(1). In assessing a sufficiency challenge, we ask whether, after construing all evidence
in favor of the verdict, “any rational trier of fact could have found the essential elements of the
crime beyond a reasonable doubt.” Jackson v. Virginia, 443 U.S. 307, 319 (1979).
Wallace does not contest that he knowingly possessed methamphetamine. Nor does he
challenge the jury instruction that “possession of controlled substances by a law enforcement
officer for the purpose of planting those substances on others is possession with intent to
distribute.” R.216 at 94; see United States v. Cortes-Caban, 691 F.3d 1, 17–23 (1st Cir. 2012)
(holding that planting drugs constitutes distribution); United States v. Figueroa, 729 F.3d 267,
273–75 (3d Cir. 2013) (same). The only pertinent question under Wallace’s framing of the
appeal is whether a rational jury could find that he possessed this methamphetamine for the
purpose of planting it.
Ample evidence supports the jury’s verdict. Wallace’s attempt to frame Sizemore—with
a pill bottle “found” in Sizemore’s car—demonstrated a willingness to use fabricated drug

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No. 21-6011 United States v. Michael Wallace Page 5
evidence to secure false arrests. By planting baggies and scales on Hughes, Wallace
manufactured a trafficking charge, and the seizure of Hughes’s vehicle confirmed this practice.
While the other encounters—the Pinkney and Dobbs seizures—did not involve planted evidence,
they confirmed Wallace’s pattern and method of making false arrests. In the light cast by this
pattern, Wallace’s decision to store methamphetamine at home—instead of in the Somerset
evidence lockup that he and other officers routinely used for other seized items—indicated a
desire to have the drugs readily available to plant. On top of that, Wallace’s serial false denials
to the FBI about storing controlled substances in his home suggested consciousness of guilt. A
reasonable jury could infer an intention to plant these drugs from this evidence.
Wallace advances two counterarguments. He now claims that rather than planting drugs
during the Sizemore stop, he merely pretended to find drugs. Because the drugs never left his
possession, he says, no “distribution” occurred. But because Wallace did not testify, the only
evidence to support this theory is the speed with which he found the drugs in Sizemore’s car.
That speed, sure enough, permits the inference that the drugs never left his hands. But another
equally legitimate (and less self-serving) possibility is that he immediately placed them there,
searched around, then “found” them. Notably, the second possibility is what he said happened in
preparing a warrant affidavit after the search: that he had found “Percocet prescription tablets
and suspected methamphetamine . . . under the driver’s seat.” R.214 at 71. Making matters
worse, Wallace did not raise this argument to the jury or the trial judge. The evidentiary record
simply does not support Wallace’s new argument.
But this wispy distinction does not solve Wallace’s problem anyway. Possession with
intent to distribute is a forward-looking offense. It does not require evidence of a track record
of past distributions or even one distribution. See United States v. Gardner, 32 F.4th 504, 533
(6th Cir. 2022). Even if we accepted the idea that Wallace did not actually distribute drugs
during the Sizemore stop—say because the methamphetamine never left his hands—his actions
permitted the inference that he planned to continue framing the citizens of Pulaski County for
methamphetamine possession.
Confirming the point is an earlier seizure. We know that his alleged failure to actually
plant drugs in one car does not demonstrate the lack of an intent to do so in the future. When
unaccompanied by potential witnesses during the Hughes stop, Wallace did plant baggies and a

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No. 21-6011 United States v. Michael Wallace Page 6
scale to justify a trafficking charge and the seizure of the victim’s car. Under the watchful gaze
of the three Somerset officers present during the Sizemore stop, Wallace had no similar
opportunity. He was instead forced to rely on the unconvincing ruse of pretending to find
methamphetamine in Sizemore’s previously searched car. His alleged inability to plant evidence
on one occasion did not require the jury to conclude that, during his future attempts to secure
false convictions, he would be unable to do so.
Wallace separately emphasizes that the agents found the methamphetamine bagged inside
his safe, suggesting it was lawfully stored for law enforcement purposes. But this ford is easy to
cross after a jury trial. It is the rare trial defendant who does not offer innocent explanations for
their conduct. Sometimes juries accept those explanations. Sometimes they do not. Where the
jury rejects the explanations, we generally let the jury make the call when the point is contested
with admissible evidence. United States v. Terry, 707 F.3d 607, 615 (6th Cir. 2013). Just so
here. The government and Wallace put on competing evidence about what Wallace was doing.
Faced with extensive testimony about Wallace’s corruption, the jury could reasonably reject this
explanation. Circumstantial evidence need not “remove every reasonable hypothesis except that
of guilt.” United States v. Stone, 748 F.2d 361, 363 (6th Cir. 1984). That Wallace stored the
drugs in evidence bags did not require the jury to accept his claim that he never intended to plant
them.
B.
Weapon enhancement. Wallace contests the two-level sentencing enhancement for
possessing a dangerous weapon during a drug trafficking crime. See U.S.S.G. § 2D1.1(b)(1). If
a weapon was present during relevant conduct, the enhancement applies unless the defendant
establishes a clear improbability that the weapon was connected to the offense. United States
v. Greeno, 679 F.3d 510, 514 (6th Cir. 2012); U.S.S.G. § 2D1.1 cmt. n.11(A). We review the
district court’s factfinding for clear error and “accord due deference to the district court’s
determination” that an enhancement applies. United States v. Shanklin, 924 F.3d 905, 919 (6th
Cir. 2019).
The court did not clearly err in finding that firearms were present during Wallace’s drug
offense. Wallace kept dozens of guns at his home, including some just a few feet away from the

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No. 21-6011 United States v. Michael Wallace Page 7
safe in which the drugs were found. And Wallace admits to carrying a gun during his law
enforcement duties.
Nor did Wallace establish that his guns were clearly unconnected to the offense. In
upholding the enhancement’s applicability, we have emphasized the link between an officer’s
gun and the office abused to implement his criminal scheme, the gun’s role in bolstering
confidence, and its potential to frighten and intimidate victims. United States v. Sivils, 960 F.2d
587, 596 (6th Cir. 1992). Using similar logic, the district court recognized that, “if somebody is
planting drugs on you, and threatening you if you call him on it, and he’s got a gun on his hip,
that’s undoubtedly a factor in the overall crime.” R.206 at 22. The link between Wallace’s guns
and his ability to possess and plant methamphetamine with perceived impunity undermines any
contention that his guns were unconnected to his drug offense. Plus, it would be strange for us to
say, as we frequently do, that guns facilitate run-of-the-mine crimes by traditional drug
distributors yet for us to be unwilling to follow the same logic when the shoe is on the other
foot—when guns are used to facilitate atypical crimes by law enforcement officers bent on
planting drugs on unsuspecting citizens.
Wallace, true enough, carried a gun as part of his law enforcement duties, creating
potential overlap between the weapon enhancement and the unchallenged enhancement for
committing the offense “under color of law.” See U.S.S.G. § 2H1.1(b)(1). But each
enhancement targets different conduct and penalizes distinct harms, eliminating the alleged
double counting. See United States v. Nunley, 29 F.4th 824, 830 (6th Cir. 2022). Corrupt public
officials do not necessarily carry dangerous weapons. And it is the rare armed drug offender
who acts under color of law. No double-counting problem occurred. See Sivils, 960 F.2d at 599.
We affirm.

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CONCURRENCE
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SUTTON, Chief Judge, concurring. While the evidence supports the jury’s conviction, I
must acknowledge some uncertainty about the statute’s application to planting. In this instance,
the court instructed the jury that planting drugs counts as distributing them, and Wallace does not
object to that instruction on appeal, to this interpretation of the statute, or to the decisions of two
courts of appeals that support this interpretation. See United States v. Cortes-Caban, 691 F.3d 1,
17–23 (1st Cir. 2012); United States v. Figueroa, 729 F.3d 267, 273–75 (3d Cir. 2013). But this
conclusion is not beyond challenge.
On one side of the ledger, as our colleagues from the First and Third Circuits have fairly
recognized, the statute is broadly written. The Controlled Substances Act defines “distribute” as
“to deliver,” 21 U.S.C. § 802(11), and defines “deliver” as “the actual, constructive, or attempted
transfer” of drugs, id. § 802(8). One then could reasonably say that a “transfer” includes “to
carry or take from one person or place to another,” “to move or send to a different location,”
Cortes-Caban, 691 F.3d at 17 (quotations omitted), or “every method . . . of disposing of or
parting with property,” United States v. McKenzie, 743 F. App’x 1, 3 (7th Cir. 2018) (quotations
omitted). An officer must generally move and dispose of drugs to plant them. Cortes-Caban,
691 F.3d at 18. Construed broadly, a transfer does not require a recipient to take possession of
the drugs, making it irrelevant that the victim never touches the drugs and remains oblivious to
their existence. Cf. McKenzie, 743 F. App’x at 2–3 (concluding that a distribution does not
require a recipient to take possession). Or a transfer could occur in a different way. One officer
might plant the drugs and a second officer could find them during a lawful search.
The statute’s narrow exemption for officers who “lawfully engaged” in drug enforcement
also suggests a broad definition of distribution, as the legislature saw it necessary to carve out
such legitimate law enforcement activity. Cortes-Caban, 691 F.3d at 20–22 (citing 21 U.S.C.
§ 885(d)). The exemption suggests that “transfer” is broad enough to sweep in ordinary law
enforcement conduct (say a sting operation or an arresting officer transferring the drugs to a
custodian). In the context of a protected sting and its unprotected illegitimate sibling—

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No. 21-6011 United States v. Michael Wallace Page 9
planting—officers intend to reclaim the drugs, and yet the carveout suggests the statute facially
covers both types of temporary transfers—absent an exemption.
On the other side of the ledger, the meaning of an elastic word such as “transfer” “cannot
be determined in isolation, but must be drawn from the context in which it is used.” Smith
v. United States, 508 U.S. 223, 241–42 (1993) (Scalia, J., dissenting) (quotations omitted). The
key distinction is between how a word “can be used and how it ordinarily is used.” Id. at 242.
That is particularly so in the context of penal laws, where ambiguity favors the defendant.
United States v. Wiltberger, 18 U.S. (5 Wheat.) 76, 95 (1820). Congress made clear that the
purpose of our drugs laws, as opposed to our civil rights laws, is to target the “detrimental effect
[of drugs] on the health and general welfare of the American people.” 21 U.S.C. § 801(2)
(emphasis added). In other circumstances, items may be transferred from place to place, but this
context calls for a definition of “transfer” focused on the conveyance “from one person . . . to
another.” Transfer, Webster’s Third New International Dictionary 2427 (2002). In other words,
a prohibited “transfer” of drugs requires both a transferor and a transferee, because drugs can do
little harm without a recipient. In this context, speaking of temporarily “transferring” drugs by
planting them seems as strange as “using” a cane by hanging it in the hall. See Smith, 508 U.S.
at 242 (Scalia, J., dissenting).
The statutory distinction between distribution and simple possession also lends support to
a more limited reading of “transfer,” one that requires an intended conveyance between two
parties. Compare 21 U.S.C. § 841(a) (distribution), with id. § 844(a) (possession). If merely
“carry[ing] or tak[ing] [drugs] from one . . . place to another,” “mov[ing] [drugs] . . . to a
different location,” or “disposing of” drugs constitute a transfer, Cortes-Caban, 691 F.3d at 17
(quotations omitted), the line between possession and distribution starts to vanish. Addicts
invariably move their drugs between the moment of purchase and the moment of consumption.
Yet few would say that a drug user is engaged in a distribution when he “moves” drugs from his
right pocket to his left or returns home with drugs after a purchase. If merely “disposing of”
drugs counts as a distribution, moreover, that would convert a possession crime into a
distribution crime when a defendant flushes drugs down a toilet or throws them into a lake while
fleeing the police. Cortes-Caban, 691 F.3d at 17. So too of a drug user who hides drugs in his
neighbor’s garage for the purpose of retrieving them later.

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No. 21-6011 United States v. Michael Wallace Page 10
Nor, from the government’s perspective, is it clear what law-enforcement end is served
by this broad interpretation of the drug distribution laws. No one contests that the planting of
drugs is punishable as a violation of the victim’s civil rights, as Wallace well knows. See
18 U.S.C. §§ 241, 242. A district court’s broad authority to vary upward under the Sentencing
Guidelines leaves plenty of room to ensure wayward officers get what they deserve. The worse
the conduct after all, the more room for an enhanced sentence. Judge Wier, notably, took
account of this dynamic in the other direction in lowering Wallace’s sentence to account for the
reality that this was not a conventional application of the drug distribution laws.
Both sides of this ledger may warrant careful examination if the government opts to seek
further convictions under this broad interpretation of the drug distribution laws. For now, I take
the case as it comes to us. A final balancing of the books on this score must await another day.

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