United States of America v. Jesse Gregory Fairley

RECOMMENDED FOR PUBLICATION
Pursuant to Sixth Circuit I.O.P. 32.1(b)
File Name: 25a0121p.06
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
JESSE GREGORY FAIRLEY,
Defendant-Appellant.
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No. 22-3923
Appeal from the United States District Court for the Northern District of Ohio at Cleveland.
No. 1:20-cr-00672-1—Pamela A. Barker, District Judge.
Decided and Filed: May 8, 2025
Before: CLAY, WHITE, and DAVIS, Circuit Judges
_________________
COUNSEL
ON BRIEF: Dennis C. Belli, LAW OFFICE, Columbus, Ohio, for Appellant. W. Connor
Winn, UNITED STATES DEPARTMENT OF JUSTICE, Washington, D.C., for Appellee.
_________________
OPINION
_________________
DAVIS, Circuit Judge. In September 2020, Jesse Fairley chose a local convenience-store
parking lot as his base of operation to sell crack cocaine. He caught the eye of a local
law-enforcement officer assigned to a federal task force, who watched Fairley conduct hand-to-
hand transactions in the parking lot. When members of law enforcement closed in on Fairley
and searched the parked vehicle he had frequented throughout the surveillance of his activities,
they found handguns and a “bunch” of cash sitting in the open, as well as crack cocaine and
marijuana in a compartment next to where Fairley had been seated. (Trial Tr., R. 59, PageID
>

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457). A jury convicted Fairley of possessing with the intent to distribute crack cocaine,
possessing a firearm after a felony conviction, and possessing a firearm in furtherance of a
drug-trafficking crime. After receiving a thirty-year sentence, Fairley promptly appealed his
conviction.
On appeal, Fairley raises five issues for this panel’s review: (1) whether his
convictions are supported by sufficient evidence of possession; (2) whether the jury instructions
on third-party guilt were misleading and confusing in a way that tainted his convictions;
(3) whether the cumulative effect of purportedly erroneous evidentiary rulings deprived Fairley
of his due process rights; (4) whether the government’s communications with a defense witness
were improper and violated Fairley’s due process rights; and (5) whether the government’s
closing remarks were improper and deprived Fairley of his right to a fair trial.
For the following reasons, we AFFIRM.
I. BACKGROUND
On September 17, 2020, Detective Mathew Pollack of the Cleveland Police Department
(“CPD”) sat across the street from the Little Eagle Food Market, using binoculars to observe
Fairley and then 16-year-old Terrez Wilson as they spent time in the store’s parking lot. Pollack
watched Fairley and Wilson repeatedly get into and out of a brown BMW sport utility
vehicle (alternately “the SUV”). During this time, Pollack saw Fairley conduct two suspected
hand-to-hand drug transactions. And he watched Wilson conduct at least one such transaction.
Based on his observations, Pollack suspected that Fairley and Wilson were selling crack
cocaine (alternately “crack”). Pollack saw Wilson give a white, rock-shaped substance to his
customer. And he noticed that one of Fairley’s customers—a disheveled woman who
entered and exited the parking lot after receiving an item that Fairley pulled out of a bag in his
pants—appeared to be “more like a hardcore drug user versus just somebody who smokes
marijuana occasionally.” (Id. at 352).
After watching several transactions, Pollack summoned other officers to the location.
The responding officers approached the BMW that Pollock had seen Fairley and Wilson

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repeatedly entering and exiting. Fairley was seated in the front passenger seat, and Wilson and
three women were seated in the back seat as officers approached. Wilson’s sister, who had been
seated in the driver’s seat, had exited the vehicle to go into the store just before the officers
arrived. Fairley quickly exited the vehicle from the front passenger side with cash in his hand.
Officers detained and questioned Fairley. Afterward, officers searched the BMW.
Inside the BMW, officers found “a pretty large amount” of crack cocaine, (Trial Tr.,
R. 60, PageID 587), as well as marijuana, cash, and two loaded firearms—a Glock 19, 9 mm
semi-automatic pistol and a Ruger LCP .380 pistol—in the area between the driver’s seat and the
passenger’s seat. More particularly, they found the two pistols sitting atop the emergency brake,
near the gear shift located in the center console. And officers found a bag of crack inside a
covered storage compartment toward the back of that same console. There was also cash in the
open compartment of the center console next to the guns, on the floor, and on one of the seats;
and a bag of marijuana sitting in the console. A digital scale was in the driver’s side door
pocket.
Fairley denied that either the Glock or the Ruger belonged to him. He claimed that all the
contents of the BMW belonged to its male owner, who the police had failed to stop. But
Fairley’s story changed over the course of his law enforcement encounter that day. For instance,
Fairley first denied dealing any drugs. Then, after officers told Fairley that one of them had
observed him conduct multiple hand-to-hand transactions, Fairley stated that he had sold some
marijuana, while continuing to deny that the crack and firearms belonged to him.
As relevant here, a federal grand jury indicted Fairley for: possession with intent to
distribute crack cocaine in violation of 21 U.S.C. §§ 841(a)(1) (Count 4); being a felon in
possession of firearms and ammunition in violation of 18 U.S.C. § 922(g)(1) (Count 5); and
possession of a firearm in furtherance of a drug trafficking crime in violation of 18 U.S.C.
§ 924(c)(1)(A) (Count 6).1 At trial, prosecutors posited that Fairley jointly possessed both the
crack and the firearms with another or others. In defense, Fairley argued that he possessed
neither. Instead, according to Fairley, some third-party actor(s) possessed the contraband.
1The grand jury also indicted Fairley on three identical charges stemming from a January 29, 2020
incident. Those charges were dismissed before trial.

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Fairley twice moved for a judgment of acquittal pursuant to Federal Rule of Criminal
Procedure 29: once after the government rested its case and again after the defense rested. In
both instances, the district court heard argument from the parties and denied the motion,
determining there was “sufficient evidence for the jury to find guilt beyond a reasonable doubt.”
(Trial Tr., R. 60, PageID 593–99, 643–44). In the end, the jury found Fairley guilty on all three
counts. Fairley received a thirty-year prison sentence to be followed by five years of supervised
release. He promptly appealed.
II. SUFFICIENCY OF THE EVIDENCE
Standard of Review. “We review ‘de novo the sufficiency of the evidence to sustain a
conviction.’” United States v. Emmons, 8 F.4th 454, 477 (6th Cir. 2021) (emphasis omitted)
(quoting United States v. Gunter, 551 F.3d 472, 482 (6th Cir. 2009)). In doing so, “[w]e draw all
available inferences and resolve all issues of credibility in favor of the jury’s verdict[;] . . . it is
not necessary for us to exclude every reasonable hypothesis but guilt.” United States v. Avery,
128 F.3d 966, 971 (6th Cir. 1997). Ultimately, we consider whether, viewing the record as a
whole, there is “substantial and competent evidence” to support the judgment. United States
v. Jackson, 918 F.3d 467, 478 (6th Cir. 2019) (quoting United States v. Taylor, 800 F.3d 701,
711 (6th Cir. 2015)). That is, we assess whether any rational trier of fact could have found the
essential elements of the convicted crimes beyond a reasonable doubt. Id.
Actual and Constructive Possession Defined. Fairley first argues that the government
presented insufficient evidence to establish that he possessed the crack and firearms seized from
the BMW. These failings, he asserts, should have led the district court to grant his motion for
acquittal. Because ample evidence supported the jury’s conclusion that Fairley possessed both
the firearms and the crack cocaine, we disagree.
As an initial matter, possession can be either actual or constructive. United States
v. Gardner, 488 F.3d 700, 713 (6th Cir. 2007). Actual possession exists when the contraband at
issue is within the immediate power or control of the individual. Id.; see also Taylor, 800 F.3d at
709 (“[A]ctual possession exists where the defendant has physical contact with a firearm-e.g., he
holds it, holsters it, or keeps it in a place where it is immediately accessible”) (citation and

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No. 22-3923 United States v Fairley Page 5
internal quotation marks omitted)). And “constructive possession exists when a person does not
have actual possession but instead knowingly has the power and the intention at a given time to
exercise dominion and control over an object, either directly or through others.” Gardner,
488 F.3d at 713 (alteration adopted) (citation and internal quotation marks omitted); see also
United States v. Campbell, 549 F.3d 364, 374 (6th Cir. 2008); United States v. Bailey, 553 F.3d
940, 944 (6th Cir. 2009) (quoting United States v. Craven, 478 F.2d 1329, 1333 (6th Cir. 1973),
abrogated on other grounds by Scarborough v. United States, 431 U.S. 563 (1977), as
recognized in United States v. Rangel-Tapia, No. 23-1220, 2024 WL 966385 (6th Cir. Mar 6,
2024)). Both types of possession can be established through either direct or circumstantial
evidence. Craven, 478 F.2d at 1333.
Another word about constructive possession; a defendant’s mere proximity to contraband
is not enough. There must be “other incriminating evidence.” United States v. Arnold, 486 F.3d
177, 183 (6th Cir. 2007) (citation and internal quotation marks omitted). This means the
government must produce additional evidence showing “knowledge of, access to, and an intent
to exercise control over [the contraband]” to meet this “minimal” burden. United States
v. Walker, 734 F.3d 451, 456–58 (6th Cir. 2013) (citation omitted) (finding sufficient evidence of
constructive possession based on the defendant’s proximity to a firearm, plus the defendant’s
“unnatural” movements, positioning of the weapon in a way that made it easy for the defendant
to grab it, and fact that the gun was in plain view when officers opened the car door).
Fairley’s Possession of Crack and Firearms. Fairley argues that his convictions were not
supported by sufficient evidence of constructive possession. Drawing all inferences in favor of
the jury’s verdict, the government presented substantial and competent evidence that Fairley
constructively possessed the seized crack and firearms.2 First, the crack: officers found both
crack and marijuana in the center console, directly next to where Fairley was sitting just before
his quick departure from the BMW. Though the crack was not visible, Fairley was the only
front-seat occupant and needed only lift the compartment lid next to him to view and retrieve the
2The government argues that it presented sufficient evidence to establish that Fairley either actually or
constructively possessed both the guns and drugs. Because we conclude that, contrary to Fairley’s argument, the
evidence was sufficient to show constructive possession, we need not address the actual possession theory.

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drugs. And the jury heard evidence beyond Fairley’s proximity to the crack. For instance,
Pollack saw Fairley getting into and out of the BMW multiple times and twice watched him
complete apparent hand-to-hand drug transactions. He also noted that at least one of Fairley’s
customers appeared to be a user of hard drugs—an observation from which a juror might deduce
a crack rather than marijuana transaction. Further, when officers questioned Fairley, he first
denied selling any drugs. But once the officers informed Fairley that they had seen him
conducting hand-to-hand transactions, he admitted he had been selling marijuana. His initial
denial, followed by a minimizing statement, are evasive tactics which can support a finding
of constructive possession. See United States v. Newsom, 452 F.3d 593, 610 (6th Cir. 2006).
And given that marijuana, which Fairley admitted to selling, was in the same console as the
crack—readily accessible to Fairley—the jury could reasonably infer that Fairley knew both
drugs were there and he controlled access to them. From these circumstances, a rational juror
could conclude that Fairley constructively possessed the crack intending to distribute it.
The same is true for Fairley’s possession of the two firearms. As officers approached the
BMW, the pistols rested in plain view on top of the center console area, to Fairley’s immediate
left, within arm’s reach. Because the weapons were sitting out in the open, Fairley’s knowledge
of their presence cannot be reasonably questioned. And unlike in Bailey, where we determined
that evidence of a rifle under the defendant’s seat in a recently stolen vehicle could not show
constructive possession, 553 F.3d at 945–48, Fairley was not in an unfamiliar vehicle. Indeed,
Fairley had a history of exercising dominion and control over the BMW. The SUV belonged to
Fairley’s self-described “spouse,” Shanena Stevens, and Fairley regularly drove it when Stevens
was not present. Officers also found a receipt identifying Fairley as the customer for an oil
change for the BMW. And the guns were resting near a large pile of cash and crack, both of
which a jury reasonably could have determined belonged to Fairley—to that point, Fairley exited
the vehicle with some of the cash in hand. Fairley also admitted that a small puppy resting near
the gas pedal of the vehicle was his and his alone. The receipt, combined with Fairley’s regular
use of the vehicle without his spouse and the presence of his puppy in the driver’s area of the
vehicle, add to the picture of his dominion and control over the vehicle, even if he did not drive it
to Little Eagle that day. See United States v. Hall, 20 F.4th 1085, 1106 (6th Cir. 2022) (stating
that “‘ownership, dominion, or control over the contraband itself or the . . . vehicle’” where it is

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found can show constructive possession) (quoting United States v. White, 932 F.2d 588, 589 (5th
Cir. 1991)). Add to that, Fairley still claimed the owner of the contraband was the male driver of
the vehicle, who had evaded police. This evasive conduct supports rather than detracts from a
finding of dominion and control. See Newsom, 452 F.3d at 610. And that is enough to establish
constructive possession.
In sum, viewing this evidence in the light most favorable to the government, and applying
all available inferences in favor of the jury’s verdict, a rational juror could conclude that Fairley
was aware of the presence of the crack and firearms, intended to exercise dominion and control
over them, and did so. See Walker, 734 F.3d at 456–58.
III. JURY INSTRUCTIONS
Fairley next contends that the district court’s jury instructions could have misled and
confused the jurors about third-party guilt and therefore warrant reversal of his convictions. We
disagree.
Standard of Review. We review the district court’s jury instructions for abuse of
discretion. United States v. Eaton, 784 F.3d 298, 306 (6th Cir. 2011); United States v. Williams,
612 F.3d 500, 506 (6th Cir. 2010). The standard for reversing a conviction based on a claim of
improper instructions is high. United States v. Fisher, 648 F.3d 442, 447 (6th Cir. 2011). We
“may reverse a judgment [based on an improper jury instruction] only if the instructions, viewed
as a whole, were confusing, misleading, and prejudicial.” Id. (quoting United States v. Young,
553 F.3d 1035, 1050 (6th Cir. 2009)).
Third-Party Guilt Jury Instruction. Police observed both Wilson and Fairley conducting
hand-to-hand drug transactions in the Little Eagle parking lot. And they saw both individuals
frequently getting in and out of the BMW. As a result, the government pursued a theory of joint
possession at trial—meaning that both people equally possessed the guns and drugs found in the
BMW. See Hall, 20 F.4th at 1106–07. But Fairley’s defense centered on the theory that Wilson
alone, or some other person with access to the BMW, possessed the contraband. He challenges
the following instruction given at trial:

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I want to emphasize that the defendant is only on trial for the particular crimes
charged in the indictment. Your job is limited to deciding whether the
Government has proved the crimes charged.
Also, keep in mind that whether anyone else should be or has been prosecuted and
convicted for these crimes is not a proper matter for you to consider. The possible
guilt of others is no defense to a criminal charge. Your job is to decide if the
Government has proved the defendant guilty. Do not let the possible guilt of
others influence your decision in any way.
(Trial Tr., R. 61, PageID 790, 871).
The district court fashioned this instruction after Sixth Circuit Pattern Criminal
Instruction (“PCJI”) 8.08(2), making only minor modifications. While we have acknowledged
that PCJI 8.08(2) can be misleading at times, see, e.g., United States v. Larch, 399 F. App’x 50,
55 (6th Cir. 2010); see also PCJI 8.08, Committee Commentary, that is not the case here.
We have upheld iterations of this instruction in cases where the instruction appropriately conveys
(1) “the jury’s obligation to determine whether the evidence conclusively proved the defendant
guilty” and (2) “that it should not permit the possible additional criminal liability of others to
influence its decision.” See Larch, 399 F. App’x at 55 (alterations in original). In cases of joint
possession, where the defendant does not claim mistaken identity, an instruction similar to PCJI
8.08(2) comfortably fits in this category. Id.
Here, the government propounded that Fairley and Wilson jointly possessed the firearms
and crack. Under this theory, Wilson’s guilt would not prevent the jury from finding that Fairley
also possessed the crack and firearms. Fairley did not claim mistaken identity; he denied
culpability. Thus, the district court’s charge to the jury on this point was consistent with a
permissible theory for liability and was not confusing. The instruction emphasized the jury’s
responsibility to assess Fairley’s culpability alone, and not to consider whether someone else also
“should be or has been prosecuted [or] convicted.” (Trial Tr., R. 61, PageID 790). In this way,
the instruction operated as it should; it ensured that Fairley would neither be held responsible for
someone else’s conduct nor excused of his own.
For these reasons, Fairley’s reliance on United States v. Farrow is unavailing. 574 F.
App’x 723 (6th Cir. 2014). In Farrow, the defendant argued mistaken identity. Id. at 725.

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Therefore, an instruction to jurors that they need not allow the guilt of a third party to affect their
verdict was potentially problematic: If they believed someone else instead of Farrow committed
the crime, then an instruction telling them to ignore the third party’s liability could result in the
conviction of an innocent person. See id. at 731. There was no chance of that here. Fairley
could not plausibly argue that someone else instead of him was in the Little Eagle parking lot
that day conducting drug transactions and repeatedly accessing a car stocked with firearms and
crack. Police surveilled him for quite a while before approaching him. Instead, Fairley pursued
a theory that others in the BMW possessed the firearms and crack exclusively to defeat the
government’s theory of joint possession. (ECF 43, Appellant Br. at 12 (“Fairley’s entire defense
was premised on a contention that another occupant of the vehicle . . . was the sole possessor of
the crack cocaine and firearms.”)). The court instructed the jury on joint possession and gave a
limiting instruction that Fairley’s mere presence with others who were in possession of
contraband was not enough to support a conviction. (Trial Tr., R. 61, PageID 803 (“But
remember that just being present with others who had possession is not enough to convict.”)).
The jurors, therefore, knew that they needed to make a separate determination specific to Fairley,
and there is no reason to conclude that the court’s slightly modified PCJI 8.08(2)-instruction
confused them in any way.
IV. EVIDENTIARY RULINGS
Fairley also challenges several of the trial court’s evidentiary rulings and asserts that the
cumulative effect of these purportedly erroneous decisions deprived Fairley of due process.
Specifically, he contends that the district court improperly (1) allowed expert testimony from
CPD Detective Donald Kopchak,3 (2) admitted Fairley’s statements relating to past and
subsequent crimes, and (3) admitted images of Fairley in possession of large sums of money
indicative, according to the government, of drug trafficking.
3Kopchak was simultaneously assigned as a Task Force Officer for the Bureau of Alcohol, Tobacco,
Firearms and Explosives (“ATF”), during the events underlying Fairley’s arrest.

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A. Expert Testimony—CPD Detective Kopchak
At trial, defense counsel objected on relevance grounds to Kopchak providing expert
opinion testimony. The district court overruled the objection. Fairley asserts that his objection
preserved the issue he now appeals, and we should review for abuse of discretion. Conversely,
the government contends that Fairley “advances new grounds on appeal” not based on relevance,
so plain error review applies. (ECF 58, Appellee Br. at 21–22). We need not settle this dispute
because under either standard, the answer remains the same. So, we will review the district
court’s decision to exclude expert testimony using the less deferential abuse of discretion
standard. See United States v. Anderson, 67 F.4th 755, 767 (6th Cir. 2023) (quoting United
States v. Gardner, 32 F.4th 504, 519 (6th Cir. 2022)). We will find such an abuse of discretion
only where the district court’s ruling leaves us “‘with a definite and firm conviction that [the
district court] committed a clear error of judgment.’” In re Scrap Metal Antitrust Litig., 527 F.3d
517, 528 (6th Cir. 2008) (quoting Conwood Co., L. P. v. U.S. Tobacco Co., 290 F.3d 768,
781 (6th Cir. 2002)).
Federal Rule of Evidence 702 governs the admissibility of expert testimony. Courts may
permit such testimony if it “will help the trier of fact to understand the evidence or to determine a
fact in issue.” Fed. R. Evid. 702(a); see also, e.g., Madej v. Maiden, 951 F.3d 364, 369 (6th Cir.
2020). Daubert v. Merrell Dow Pharmaceuticals, Inc. explains that this requirement “goes
primarily to relevance.” 509 U.S. 579, 591 (1993). Though the “relevancy bar is low,” the
proffered testimony must “logically advance[] a material aspect of the proposing party’s case” to
satisfy the standard. United States v. LaVictor, 848 F.3d 428, 442 (6th Cir. 2017) (citation and
internal quotation marks omitted). Even where relevant, under Federal Rule of Evidence 403,
“[t]he court may exclude relevant evidence if its probative value is substantially outweighed by a
danger of . . . unfair prejudice, confusing the issues, [or] misleading the jury.” Id. at 444
(citation and internal quotation marks omitted). Here, we recognize as an initial matter that
“‘[c]ourts have overwhelmingly found police officers’ expert testimony admissible where it will
aid the jury’s understanding of an area, such as drug dealing, not within the experience of the
average juror.’” United States v. Jaffal, 79 F.4th 582, 603 (6th Cir. 2023) (quoting United States

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v. Dunnican, 961 F.3d 859, 876 (6th Cir. 2020)). We therefore begin by probing the utility of
Kopchak’s testimony about the particulars of the drug-trafficking trade.
Kopchak testified as both an expert and a fact witness for the government. For his expert
opinions, Kopchak drew from his training and service as an ATF Task Force Officer for
approximately five years and his experience handling narcotics cases in CPD’s vice unit for
approximately five to six years at the time of the trial. In our view, the expert opinions Kopchak
offered at trial could help jurors better understand the drug-dealing practices relevant to this case.
For instance, Kopchak explained how drug dealers typically produce, package, and distribute
crack cocaine. He explained that drug dealers commonly carry multiple types of drugs to
diversify their revenue sources. He also informed the jury that dealers sometimes keep smaller
amounts of narcotics in their vehicle or on their person for dealing, while storing larger amounts
elsewhere, so that if law enforcement catches them with drugs, they will be held responsible for a
smaller quantity than they otherwise would be. Given the way the crack found in the BMW was
stored and the factual circumstances surrounding the hand-to-hand transactions officers
observed, these details of the trade provided useful context for the factfinder. Kopchak also
advised that it is common for drug dealers to carry firearms for protection. Other particulars that
he described or explained included (1) that drug dealers, rather than drug users, typically possess
and use digital scales to weigh the drugs they are distributing to avoid giving customers free
drugs; (2) how drug dealers utilize social media; and (3) why officers might have difficulty
acquiring fingerprints from a firearm. These insights go beyond mundane observations and the
common knowledge of everyday people not involved in the illicit drug trade. And they are
consistent with testimony we have allowed in other cases. See, e.g., United States v. Wilson,
837 F. App’x 396, 399 (6th Cir. 2020) (relying on expert testimony that drug dealers use
multiple cell phones and carry large amounts of cash); United States v. Swafford, 385 F.3d 1026,
1030 (6th Cir. 2004) (allowing law enforcement expert testimony on the role firearms play in
drug trafficking activity).
Here, the government had to prove that Fairley intended to distribute the crack they
found. So, its appearance and the way it was packaged were relevant considerations for the jury.
Similarly, the reasons for maintaining a set of digital scales near illegal narcotics may not be

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readily apparent to someone not involved in the drug trade or law enforcement. And given that
the government pursued alternative theories of actual and constructive possession, an explanation
of the difficulty of obtaining fingerprints from firearms could assist the jurors in weighing the
evidence. Considering these connections to the evidence, we are not left with a definite and firm
conviction that the district court erred in permitting Kopchak’s testimony under Rule 702.
B. Rule 404(b) Evidence
Fairley challenges the district court’s admission of evidence of his other criminal activity.
Federal Rule of Evidence 404(b) prohibits trial courts from permitting evidence of other crimes
or wrongs (“bad acts”) to be used to prove character or propensity to violate the law. Fed. Rule
Evid. 404(b). However, such evidence may be admitted for other purposes, such as to show
“motive, opportunity, intent, preparation, plan, knowledge, identity, absence of mistake, or lack
of accident.” Rule 404(b)(2). Trial courts have “broad discretion” in determining the
admissibility of evidence under Rule 404(b). United States v. Clemis, 11 F.3d 597, 600 (6th Cir.
1993) (quoting United States v. Vance, 871 F.2d 572, 576 (6th Cir. 1989)). We review their
exercise of that discretion using a three-part test:
First, we review for clear error the factual determination that other acts occurred.
Second, we review de novo the legal determination that the acts were admissible
for a permissible 404(b) purpose. Third, we review for abuse of discretion the
determination that the probative value of the evidence is not substantially
outweighed by unfair prejudicial impact.
United States v. Adams, 722 F.3d 788, 810–11 (6th Cir. 2013) (emphasis omitted); cf. Jaffal,
79 F.4th at 594 (“acknowledging an . . . intra-circuit split regarding the standard of review for
Rule 404(b) evidence, but concluding that the abuse of discretion and tripartite standards of
review are not in fact inconsistent, because it is an abuse of discretion to make errors of law or
clear errors of factual determination.” (citation and internal quotation marks omitted)).
Fairley raises two distinct Rule 404(b) challenges, both relating to evidence about his
involvement in other crimes—one before and one after his arrest at the Little Eagle Market.
First, several months before Fairley’s arrest in this case, Kopchak interviewed Fairley as a
potential government informant. Kopchak testified at trial that Fairley admitted to him during

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this earlier interview that he (Fairley) received guns from a specific local gang. Fairley also
identified the source(s) he used for his powder cocaine and crack cocaine trafficking
and indicated that he was unwilling to halt this illegal activity. Second, another CPD detective,
Daniel Hourihan, testified that five days after Fairley’s arrest in this case, on September
22, 2020, Fairley committed another criminal offense. And as part of his guilty plea for the
September 22 offense, Fairley admitted that he had used a “dangerous weapon.” (Trial Tr.,
R. 59, PageID 481, 486). The court allowed the testimony about both incidents to show that
Fairley had ready access to firearms and cocaine, and to show his intent, knowledge, and lack of
mistake.
Fairley does not contest the factual accuracy of either law-enforcement officer’s
testimony that he committed these other bad acts. So, the first prong of our tri-partite test is not
at issue. He does, however, dispute that they were admitted for a proper purpose and claims
unfair prejudice. We therefore turn to the second and third prongs as they relate to each tranche
of evidence.
Prior Drug Trafficking and Firearms Possession. Fairley’s statements to Kopchak about
his previous drug trafficking and firearms possession were admissible for Rule 404(b) purposes.
At trial, the government had to show not only that Fairley possessed the crack seized from the
BMW, but also that he intended to distribute it. Evidence tending to show that Fairley had one
or more established sources for crack distribution in the months leading up to his Little-Eagle-
parking lot arrest is useful to show both opportunity and intent to distribute.
Moreover, given the span of months rather than years between (1) Fairley’s admission
about having specific sources for both cocaine and firearms and (2) his arrest for possessing
crack (with the intent to distribute) and two semi-automatic pistols, the jury could reasonably
infer that Fairley had ready access and intent to possess these items. This evidence also rebuts
Fairley’s argument that someone else rather than he possessed these items. And Fairley’s vague
reference to the “prejudicial effect” of this evidence is woefully inadequate to establish that any
such prejudice was undue in relation to the probative value of the evidence. (ECF 43, Appellant
Br. at 36). To the contrary, evidence of Fairley’s drug and gun sources as well as his affirmation

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to officers that he had no desire to stop his activities carries considerable probative value in the
face of Fairley’s denials at trial.4
Evidence of Post-Offense Criminal Conduct. The admissibility of Hourihan’s testimony
about Fairley’s possession of a dangerous weapon five days after the Little Eagle incident is a
closer question. To determine whether evidence of other bad acts is probative of motive,
knowledge, or intent under Rule 404(b) we assess whether “the evidence relates to conduct that
is substantially similar and reasonably near in time to the specific intent offense at issue.”
United States v. Barnes, 822 F.3d 914, 922 (6th Cir. 2016) (citation and internal quotation marks
omitted). Fairley’s September 2020 crime comfortably meets the temporal aspect of our inquiry;
it was mere days later. But the question of substantial similarity is somewhat complicated by the
ambiguous way the information was presented to the jury. To be considered substantially
similar, other bad acts “need not duplicate exactly the instant charge.” United States v. Benton,
852 F.2d 1456, 1468 (6th Cir. 1988). Rather, the other bad act “need only be sufficiently
analogous to support an inference of criminal intent.” Id.
Here, Fairley’s charges included being a convicted felon in possession of a firearm and
possessing a firearm during and in relation to a drug trafficking offense. To avoid introducing
unduly prejudicial evidence, Hourihan merely testified that Fairley pleaded guilty to a crime that
included possessing a “dangerous weapon.” (Trial Tr., R. 59, PageID 486).
Even if the government’s evidence of Fairley’s guilty plea to an unnamed crime that
included possession of a dangerous weapon did not satisfy Rule 404(b)’s criteria, any error in
admitting this evidence was harmless and does not entitle Fairley to a new trial. “Admission of
other acts evidence constitutes harmless error if the record evidence of guilt is overwhelming,
eliminating any fair assurance that the conviction was substantially swayed by the error.”
LaVictor, 848 F.3d at 448 (citation and internal quotation marks omitted). All things considered,
the government presented the jury with considerable evidence that Fairley possessed the firearms
4The government also asserts that Fairley’s interview with Kopchak is admissible for non-Rule
404 purposes, as direct evidence of Fairley’s guilt. We need not reach this alternative argument because we reject
Fairley’s claim on appeal that the evidence does not meet Rule 404(b) criteria.

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even without the other acts evidence, and we are unconvinced that Fairley’s conviction was
swayed in any meaningful way by the admission of this evidence.
C. Other Evidence—Fairley’s Instagram Images
Federal Rule of Evidence 403 requires the court to consider whether the probative value
of a particular item of otherwise relevant evidence is outweighed by, as relevant here, the danger
of unfair prejudice. Fairley argues that is the case regarding an Instagram image the district
court admitted. Both parties agree that we review evidentiary rulings under Rule 403 for abuse
of discretion. See United States v. Smith, 70 F.4th 348, 352 (6th Cir. 2023).
During trial, Fairley objected to the admission of two images recovered from his
Instagram account. One image, from August 2020, depicted Fairley with a large amount of cash.
The other image, from September 2020, displayed only the cash—no Fairley. The district court
expressed reservations about admitting the September 2020, cash-only image because it did not
tie Fairley to the money. So, the government withdrew that image and moved forward with the
August 2020 image. The government offered the August image to corroborate witness accounts
of Fairley’s drug dealing.
Any error that resulted from introducing the August 2020 image was harmless. As
discussed in Part II, supra, extensive evidence presented at trial supported that Fairley had
possession of the guns and cocaine base. Therefore, it is not “more probable than not that [any]
error materially affected the verdict.” LaVictor, 848 F.3d at 448 (citation and internal quotation
marks omitted).
The district court did not cause any non-harmless error in its evidentiary rulings.
Therefore, the cumulative effect of those rulings does not warrant reversal.
V. PROSECUTORIAL MISCONDUCT/DUE PROCESS
Fairley’s final set of challenges pertain to the communications of the prosecuting
Assistant U.S. Attorney (“AUSA”) with a witness and statements made to the jury during closing
argument. With respect to the former, Fairley claims that the AUSA engaged in witness

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intimidation. And with respect to the latter, he claims prosecutorial misconduct warranting
reversal. Reversal is not warranted.
A. Witness Intimidation
We apply plain error review to Fairley’s unpreserved witness intimidation claim. United
States v. Meda, 812 F.3d 502, 517 (6th Cir. 2015). We are thus tasked with determining whether
there was “(1) an error, (2) that was obvious or clear, (3) that affected [Fairley’s] substantial
rights, and (4) that affected the fairness, integrity, or public reputation of judicial proceedings.”
United States v. Bauer, 82 F.4th 522, 530 (6th Cir. 2023) (citing United States v. Vonner,
516 F.3d 382, 386 (6th Cir. 2008) (en banc)).
State authorities prosecuted Wilson in juvenile court for his conduct in the Little Eagle
parking lot on the day Fairley was arrested. Fairley intended to call Wilson as a witness at his
trial but aborted the effort after Wilson’s voir dire examination by the court and the prosecution.
On appeal, Fairley argues that the AUSA improperly threatened Wilson and went beyond neutral
warnings in discussing with him his decision about whether to testify at Fairley’s trial. Fairley
points us to United States v. Morrison for support of this proposition. 535 F.2d 223, 226–27 (3rd
Cir. 1976) (holding that defendant was deprived of due process when juvenile witness—a former
codefendant and alleged coconspirator—refused to answer certain questions after receiving
warnings from a prosecutor that she could be charged in state court juvenile proceedings or
possibly in federal court for admitting she participated in the defendant’s crimes). Fairley also
argues that the AUSA’s representation that Wilson might expose himself to federal prosecution
and face a five-year minimum sentence was a “sham” and that the government’s success in
keeping a defense witness from testifying is prejudicial when the expected testimony would have
absolved the defendant of any guilt. (ECF 43, Appellant Br. at 40–43).
“To establish a claim of witness intimidation, a defendant must present government
conduct which amounts to substantial interference with a witness’[s] free and unhampered
determination to testify and must prove that any inappropriate conduct was not harmless.”
Meda, 812 F.3d at 517 (internal quotation marks omitted) (quoting United States v. Stuart,
507 F.3d 391, 398 (6th Cir. 2007)). Criminal defendants have the right to call witnesses to

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testify without intimidation from the government. See Baze v. Parker, 371 F.3d 310, 323 (6th
Cir. 2004) (“[F]ew rights are more fundamental than that of an accused to present a witness in
his own defense.”). But this right is not absolute. Id. Witnesses also enjoy their own
constitutional right not to self-incriminate. And prosecutors have an ethical obligation to inform
witnesses whenever the government knows or has a reason to believe that the witness could be
subject to criminal prosecution. Meda, 812 F.3d at 517.
During Wilson’s voir dire examination, the AUSA and the district court questioned
Wilson about his decision to testify at Fairley’s trial. During this examination, the district court
confirmed that Wilson intended to testify about his and Fairley’s involvement in the September
17, 2020, incident. The district court informed Wilson that if he testified “to certain matters, to
include possession of the two guns, . . . as well as the crack cocaine in [the BMW], . . . [he] could
face federal charges associated with” his confessed crimes. (Trial Tr., R. 60, PageID 635–36).
The district court also asked whether Wilson wanted a lawyer before testifying, which Wilson
declined.
The court then permitted the AUSA to address Wilson directly. The AUSA reiterated the
court’s warning that Wilson could be subject to additional prosecution because of his testimony
and added that the charges could include an offense that carries a five-year mandatory minimum
sentence. The AUSA then asked if Wilson was still willing to go forward without an attorney.
Wilson responded, “I don’t really understand.” (Id. at 637).
The court stepped back in, telling Wilson:
THE COURT: [W]hat you’re being advised is that if you testify, we anticipate
that you may, but are not sure, but if you would testify that both the Glock and the
Ruger that were found in the vehicle, the gold BMW X5 that you were in with
apparently your sister who just testified, Ms. Stevens, that if you were in that
vehicle and the drugs and the guns that were found by investigators in that
vehicle, if you testify they are yours, you could face federal charges associated
with that statement under oath. Do you understand that?
THE WITNESS: Yes.
(Id. at 638). The court reiterated that the penalty could potentially include a mandatory
minimum sentence of five years. Then, the court asked Wilson if it made sense for him to have a

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lawyer since he had “not had the opportunity to consult with counsel to advise [him] as to
whether or not [he] should so testify.” (Id. at 639–40). Wilson agreed. And the district court
arranged for him to meet with a federal public defender and put the proceedings on hold until he
did so. After a recess lasting just over an hour, the defense rested its case without calling Wilson
to the stand.
Neither the district court’s nor the AUSA’s conduct rose to the level of substantially
interfering with Wilson’s decision to testify or Fairley’s right to call a witness on his own behalf.
The court accurately advised Wilson that his testimony could have unwanted and unconsidered
legal consequences, including the possibility of new federal charges. The AUSA asked Wilson
two substantive questions—confirming that he understood there were potential legal risks
associated with his testimony and confirming that he still wanted to proceed without a lawyer.
When Wilson indicated that he did not understand, the trial court arranged for Wilson to confer
with counsel. This warning appears neutral. And the two substantive questions from the AUSA
did not substantially interfere with Fairley’s right to present witness testimony in his defense;
instead they were aimed at ensuring that Wilson understood the charges he faced, consistent with
the prosecutor’s ethical obligation. Meda, 812 F.3d at 517. Indeed, Wilson never refused to
testify. Fairley was still free to call Wilson to the stand after he had the opportunity to consult
with counsel but apparently chose not to do so.
Nor do we have a sufficient basis to conclude that the AUSA’s warning to Wilson was a
“sham.” Fairley argues that because the Federal Juvenile Delinquency Act (“FJDA”) requires a
United States Attorney to make certain certifications before prosecuting a juvenile in federal
court, it is unlikely that Wilson would be a candidate for federal prosecution. And to subject
Wilson to the five-year mandatory minimum sentence referenced, the government would
additionally have to succeed in a motion to transfer Wilson over for adult prosecution on the
offense, another unlikely scenario. But Fairley seems to concede that the FJDA may provide
some instances in which a juvenile defendant can later be criminally prosecuted in federal court,
and it is not impossible that Wilson could have been bound over for adult prosecution on charges
for his conduct in the Little Eagle parking lot on September 17, 2020. In any event, it is unclear
whether Wilson would have faced additional criminal prosecution if he took the blame for all the

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contraband in the BMW, but he potentially could have. The district court properly determined
that Wilson should have an opportunity to discuss such questions of legal exposure with counsel.
Fairley’s reliance on Morrison is unpersuasive. The government’s actions in Morrison
were much more severe and threatening. There, outside the presence of the court, the
government’s attorney made multiple threats of prosecution to a witness over the course of
several days. Morrison, 535 F.2d at 225. When the initial threats did not deter the witness from
testifying, the attorney issued an apparently bogus subpoena and called the witness into
government offices for an interview, where she was confronted by the prosecutor and several
undercover agents from the case whose testimony the witness was being called to undermine. Id.
at 225–26. Contrastingly, here, the court and government counsel briefly advised and queried
Wilson. Such relatively perfunctory questioning from the trial court and prosecution in open
court, with defense counsel present, does not approach the type of conduct identified in
Morrison. Accordingly, we see no error with this aspect of Fairley’s proceedings.
B. Closing Remarks
Fairley raises two issues relating to closing arguments. First, he argues that the AUSA
committed prosecutorial misconduct in stating that Wilson pleaded guilty to “trafficking,” in
juvenile court, and forfeited a Ruger. Fairley argues that reference to Wilson’s juvenile court
adjudication was improper because it amounted to using the conviction of an alleged accomplice
as substantive evidence of Fairley’s guilt in possessing the Glock. Second, in responding to this
aspect of the government’s closing, Fairley’s counsel made a statement about Wilson’s potential
plea deal in juvenile court. The government objected that the statement was not supported by
evidence presented at trial, and the district court sustained the objection. Fairley argues that the
AUSA’s misconduct and the court’s decision upholding the government’s objection to Fairley’s
attempt to correct the record resulted in reversible error.
The Government’s Closing Remarks. Because Fairley never objected to the
government’s closing remarks, we again employ plain error review. United States v. Jones, 55
F.4th 496, 502 (6th Cir. 2022). With respect to the third prong of the plain-error analysis—effect
on a defendant’s substantial rights—“[w]e determine whether prosecutorial misconduct affected

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a defendant’s substantial rights by evaluating the four flagrancy factors” included in the court’s
“two-step test [for] evaluating a claim of prosecutorial misconduct.” United States v. Carson,
560 F.3d 566, 574 (6th Cir. 2009). Under this approach, we first consider the threshold question
of whether the AUSA’s conduct and remarks were improper. Id. If they were, we then turn to
flagrancy and ask (1) whether the conduct and remarks tended to mislead the jury or prejudice
the defendant; (2) whether the conduct or remarks were isolated or extensive; (3) whether the
remarks were deliberately or accidentally made; and (4) whether the evidence against the
defendant was strong. Id. (quoting United States v. Carter, 236 F.3d 777, 783 (6th Cir. 2001)).
Importantly, we assess the alleged improper conduct “within the context of the trial as a
whole.” Id. (citation and internal quotation marks omitted). During opening statements,
Fairley’s counsel stated that “Wilson was charged with possessing the very same drugs and
guns” that formed the basis for Fairley’s charges. (Trial Tr., R. 59, PageID 341). In context, this
statement was an apparent attempt to lay the groundwork for Fairley’s defense theory that
Wilson, rather than he, possessed both firearms. The AUSA wrongly believed that Fairley’s
counsel had stated during his opening statement that “Wilson took responsibility for all of the
guns.” (Trial Tr., R. 59, PageID 493). So during trial, the AUSA introduced Exhibit 310, a
judgment entry showing that Wilson admitted to a drug trafficking offense5 and forfeited only
the Ruger found in the BMW. Though the AUSA’s understanding about what defense counsel
said during opening was inaccurate, it was verified as correct by defense counsel during a sidebar
discussion regarding a different objection to Hourihan’s testimony about Exhibit 310. And the
district court ultimately admitted the docket entry into evidence with agreement from both sides.
Then later, during closing arguments, the AUSA again referred to Wilson’s juvenile
adjudication, this time airing his misunderstanding of Fairley’s opening statement directly to the
jury. As relevant here, the AUSA stated:
I do have to comment on the earlier statement that Terrez Wilson took
responsibility for the guns. . . . [I]t’s not what the evidence here showed. You
were introduced to Government’s Exhibit 310, and you’ll have that back with
you, it’s a[n] order from the juvenile court. Terrez Wilson . . . pleaded guilty in
5This formal admission of responsibility in the juvenile court appears to be the functional equivalent of
pleading guilty in adult proceedings.

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this case. And I hope what you do is take this and read it. And what you’ll see it
Terrez Wilson . . . had forfeited a Ruger. A Ruger. Could have jointly possessed
it. But he forfeited a Ruger. What you will not see on here is a Glock. The exact
kind of weapon that the defendant raps about, tells you about, his weapon of
choice, a Glock.
(Trial Tr., R. 61, PageID 836–37). Fairley did not object to the misstatement or the invocation of
Wilson’s juvenile adjudication but attempted to clarify the record during his own closing
remarks.
Fairley first asserts that the AUSA’s statement mischaracterizing defense counsel’s
opening remarks about Wilson being charged for the same guns for which Fairley is now being
prosecuted was improper. And relying on Bisaccia v. Attorney General , 623 F.2d 307 (3rd Cir.
1980) and Kirby v. United States, 174 U.S. 47 (1899), Fairley argues that the AUSA used
Wilson’s juvenile adjudication as substantive evidence of Fairley’s guilt. Neither the
misstatement nor the use of Wilson’s juvenile adjudication rises to the level of prosecutorial
misconduct.
Propriety of the Government’s Remarks. Closing remarks can be improper if the
government implies facts or opinions not supported by evidence or the nature of the statement is
otherwise forbidden by substantive or procedural rules. See Slagle v. Bagley, 457 F.3d 501,
518 (6th Cir. 2006). In terms of forbidden uses, it is well established that “the guilty plea or
conviction of a co-defendant or co-conspirator . . . [is] never admissible as substantive evidence
of the defendant’s guilt.” United States v. Sanders, 95 F.3d 449, 454 (6th Cir. 1996) (citing
United States v. Blandford, 33 F.3d 685, 709 (6th Cir. 1994)). And even “a legitimate
introduction of a plea may rise to the level of prejudicial error if the prosecutor suggests in
closing argument that the jury use the plea for a prohibited purpose.” United States v. Benson,
591 F.3d 491, 499 (6th Cir. 2010).
That said, the government may offer such evidence when the defense “invite[s]”
the subject by attempting to “shift culpability” from the defendant to a co-defendant or
co-conspirator during the trial. United States v. DeLoach, 34 F.3d 1001, 1004 (11th Cir. 1994);
see also United States v. Busch, No. 20-4065, 2021 WL 5133178, at *13 (6th Cir. Nov. 4, 2021)
(affirming the district court’s decision to allow evidence of a co-conspirator’s guilt where the

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defense’s entire theory was predicated on shifting blame from the defendant to a co-conspirator).
And remarks do not ordinarily rise to the level of impropriety when they respond to the defense’s
theory of the case. See United States v. Barnett, 398 F.3d 516, 523 (6th Cir. 2005).
Fairley’s guilt-shifting theory of the case invited the government’s remarks during
closing. Indeed, Fairley concedes that his “entire defense was premised on a contention that
another occupant of the vehicle (most likely [Wilson]) was the sole possessor of the crack
cocaine and firearms.” (ECF 43, Appellant Br. at 12). And though the AUSA inaccurately
recounted defense counsel’s words from his opening statement, defense counsel’s affirmation of
the statement at sidebar and Fairley’s blame-shifting theory undercut any suggestion that the
misstatement was purposeful or otherwise made for an improper purpose.
Even so, the latter portion of the remarks potentially went too far. That is, by stating that
the Glock was “[t]he exact kind of weapon that the defendant raps about,” the government may
have gone beyond rebutting Fairley’s claim that the guns belonged to Wilson and invited the jury
to consider Wilson’s forfeiture of the Ruger as substantive evidence that Fairley owned the
Glock. (Trial Tr., R. 61, PageID 837). Any such invitation would have been improper.
Even if any of the referenced closing remarks were improper, Fairley’s misconduct claim
fails on the flagrancy inquiry. First, the remarks could not have misled the jurors in their
understanding of Fairley’s overall blame-shifting theory of the case. This theory presumably
explains Fairley’s agreement (subject to the court’s approval) to the admission of Exhibit 310 to
begin with. Nor could the jury have been misled to believe that Wilson’s guilt proved Fairley’s
guilt. After all, the jurors heard testimony about both Fairley’s and Wilson’s individual activities
leading up to Fairley’s arrest. And the district court instructed them that “whether anyone else
… has been prosecuted and convicted for these crimes is not a proper matter for you to
consider,” and that they could not let “the possible guilt of others influence [their] decision in
any way.” (Trial Tr. 61, PageID 790). Further, the remarks about the juvenile adjudication were
brief and isolated at the end of a four-day trial. And the evidence otherwise presented to the jury
was strong. A stray inaccurate comment from the government generally will not support
reversing a conviction where the evidence was strong enough that the comment likely did not
impact the outcome of the trial. See Carson, 560 F.3d at 577. We find no plain error.

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The Government’s Objection to Fairley’s Closing. Next, we consider Fairley’s claim of
improper interference in his attorney’s closing argument, which we review for abuse of
discretion. See United States v. Hynes, 467 F.3d 951, 957 (6th Cir. 2006).
The trial court did not abuse its discretion in sustaining the government’s objection to
defense counsel’s closing. Fairley contends he was prevented from refuting the government’s
argument that Wilson had taken responsibility for only one gun after the trial court interfered
with defense counsel’s closing. The record says otherwise. Defense counsel was able to refute
the prosecution’s closing remarks on this point. During closing, Fairley’s attorney stated, in
relevant part:
There’s an exhibit marked 310. It’s the journal entry related to Terrez Wilson’s
conviction in juvenile court. You’ll remember this. And the Government has
posed to you that this clearly, clearly shows that Mr. Wilson . . . had only taken
responsibility for the Ruger in the car . . . . Please read the whole paragraph of the
journal entry. This is kind of important. Out of five counts, Counts 1, 2, and 3
were dismissed. We have absolutely no way of knowing which guns were
dismissed versus which ones Terrez took responsibility for in juvenile court.
(Trial Tr., R. 61, PageID 851). The government did not object to this portion of defense
counsel’s closing. Rather, it objected to the next statement when defense counsel opined about
why counts 1, 2, and 3 were dismissed. Specifically, defense counsel asserted, “[w]hat we do
know is that three counts were dismissed as part of a plea arrangement. That would have been
helpful.” (Id.)
Neither party presented evidence of Wilson’s plea agreement in juvenile court—only the
judgement entry. Thus, the district court properly sustained the government’s objection to
Fairley’s closing remarks referring to facts not in evidence. See United States v. Davis, 809 F.2d
1194, 1209 (6th Cir. 1987) (affirming a trial court’s limitation of defense counsel’s closing
argument when the closing relied on facts not in evidence). Taken together, neither of Fairley’s
complaints relating to the closing remarks amount to reversible plain error or abuse of discretion.
Accordingly, these arguments fail.
VI. CONCLUSION
For the foregoing reasons, we AFFIRM.

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