Sixth Circuit Pattern Criminal Jury Instructions §§ 1.07B (law enforcement officer testimony) & 14.05 (conspiracy); Admission of evidence of defendant’s gang affiliation, disciplinary records, & a phone conversation; Authentication of a recording under FRE 901(a); Sufficiency of the evidence for a conviction of drug conspiracy under 21 USC § 846

The court held that changes to the Pattern Jury Instruction on conspiracy that were made after defendant-Bailey’s trial did not entitle him to a new trial where the amendment made “no substantive change” to the instruction. And “the district court did not err, let alone plainly so, by failing to give a specific instruction, sua sponte,” as to the credibility of law enforcement witnesses. The court also rejected his evidentiary challenges. A jury convicted Bailey of conspiracy to possess with the intent to distribute illegal narcotics, and he was sentenced to 300 months. The district court denied his motions for a judgment of acquittal and new trial. On appeal, he challenged its jury instruction on the elements of conspiracy and its failure to give an instruction on law enforcement officer testimony. Bailey argued that these alleged errors stemmed “from amendments to this circuit’s pattern jury instructions, made after his trial ended but while his motion for a new trial was pending.” As to the conspiracy instruction, the court noted that the two elements in the instruction given by the district court “mirror[ed] the elements of Pattern Instruction 14.05” in effect at the time of the trial. Even though the Pattern Instructions were amended after his trial, “the amendment merely recast the same substantive requirements as three elements instead of two.” As for an instruction on law enforcement officer testimony, Bailey never requested one, and while § 1.07B was not adopted until after his trial, nothing prevented him “from requesting a similar instruction.” The court noted that “trial courts in our circuit had given instructions nearly identical to Pattern Instruction § 1.07B long before Bailey’s trial.” Further, his “jury was instructed using language that tracked Pattern Instruction § 1.07, which was applicable at the time of” his trial. The court next held that the “district court did not err in admitting evidence of Bailey’s gang affiliation.” It also did not abuse its discretion in admitting disciplinary records related to infractions he committed while imprisoned or admitting a phone call. It further held that “[a]mple evidence showed the three essential elements for a conviction under § 846: ‘an agreement to violate the drug laws,’ Bailey’s knowledge of it, and his ‘decision to voluntarily join (or “participate in”) it.’” Affirmed.