United States District Court, E.D. Michigan, Southern Division
STEVEN WHALEN MAGISTRATE JUDGE
OPINION AND ORDER OVERRULING DEFENDANT'S
OBJECTIONS  AND ADOPTING MAGISTRATE JUDGE'S
RECOMMENDATION  TO DENY DEFENDANT'S MOTION TO ALTER
OR AMEND JUDGMENT 
J. MICHELSON DISTRICT JUDGE
2011, a jury convicted Dajuan Lamarr Wren of conspiracy to
possess with intent to distribute heroin, 21 U.S.C.
§§ 841, 846, and being a felon in possession of a
firearm, 18 U.S.C. § 922(g). (R. 178.) He received
concurrent 216- and 120-month sentences. (R. 323,
PageID.3403.) The Sixth Circuit affirmed Wren's
convictions, see United States v. Wren, 528
Fed.Appx. 500 (6th Cir. 2013), and in 2017, former Chief
Judge Gerald Rosen denied Wren's motion to vacate. (R.
the denial of his motion to vacate, Wren filed a motion to
alter or amend the judgment. (R. 446.) That motion is
governed by Federal Rule of Civil Procedure 59(e),
Gencorp., Inc. v. Am. Int'l Underwriters, 178
F.3d 804, 834 (6th Cir. 1999), which means this Court can
grant relief only on (1) a clear error of law; (2) newly
discovered evidence; (3) an intervening change in controlling
law; or (4) to prevent manifest injustice, Intera Corp.
v. Henderson, 428 F.3d 605, 620 (6th Cir. 2005) (citing
Gencorp., Inc., 178 F.3d at 834). In his motion,
Wren says he has newly discovered evidence of a forged plea
agreement between the government and one of his codefendants.
(Id. at 5362.) He also points out what he says are
clear errors of law in the denial of his motion to vacate,
and says he has new evidence of the judge, United States
Attorney, and his codefendant's lawyer conspiring to
convict him. (Id. at 5362-63.)
Court referred the motion to Executive Magistrate Judge R.
Steven Whalen, who recommends denying it. (R. 470,
PageID.5641.) Wren timely filed objections (R. 471,
PageID.5659), eleven in total, and the government responded
(R. 476). Having performed a fresh review of those portions
of the magistrate judge's Report and Recommendation to
which Wren has objected, 28 U.S.C. § 636(b);
Fed.R.Civ.P. 72(b)(3); Thomas v. Arn, 474 U.S. 140,
150 (1985), the Court adopts the magistrate judge's
first objection raises a clear error argument included in his
motion yet unaddressed in the report. Wren points to count
one of his indictment, which charges him with conspiracy to
distribute heroin and marijuana (R. 105, PageID.368), and
contrasts that with the jury verdict form, which mentions a
conspiracy to distribute only heroin. (R. 177.) Because count
one charged Wren with conspiring to distribute marijuana and
heroin, Wren says the jury had to find him guilty of both,
but the jury only found him guilty of distributing heroin.
(Id.) So Wren thinks his conviction is a clear error
Wren's clear error argument to carry the day, he has to
persuade the Court that the judgment against him was
“‘dead wrong.'” Lonardo v.
Travelers Indem. Co., 706 F.Supp.2d 766, 809 (N.D. Ohio
2010) (quoting H & A Land Corp. v. City of
Kennedale, No. 02-458, 2005 U.S. Dist. LEXIS 25797, at
*5 (N.D. Tex. Oct. 24, 2005)); see also Intera Corp. v.
Henderson, 428 F.3d 605, 620 (6th Cir. 2005) (finding
clear error where district court violated Federal Rule of
Civil Procedure 41(b)'s plain language); Oto v.
Metro. Life Ins. Co., 224 F.3d 601, 606 (7th Cir. 2000)
(clear error means “wholesale disregard,
misapplication, or failure to recognize controlling precedent
on the part of the court”).
Wren has not shown that the judgment is dead wrong. For
starters, Wren's interpretation of the indictment and
jury verdict form is excessively formal. Count one charged
Wren with conspiracy to distribute marijuana and heroin, in
violation of §§ 846 and 841(a). The elements of an
§§ 846 and 841(a) offense are “(1) an
agreement to violate drug laws, (2) knowledge and intent to
join the conspiracy, and (3) participation in the
conspiracy.” United States v. Toland, 717
Fed.Appx. 560, 564 (6th Cir. 2017) (citing United States
v. Wettstain, 618 F.3d 577, 584 (6th Cir. 2010)). In a
drug conspiracy case, identity and quantity of the drug are
not elements of the offense, unless the government seeks a
sentence enhancement based on drug quantity and identity.
See United States v. Villarce, 323 F.3d 435, 439
& n.1 (6th Cir. 2003); United States v. Zidell,
323 F.3d 412, 433-34 (6th Cir. 2003)So the government did not
need to establish a conspiracy to distribute marijuana
and heroin for Wren to be convicted of the crime for
which he was indicted. See Villarce, 323 F.3d at
439; United States v. Chilingirian, 280 F.3d 704,
711-12 (6th Cir. 2002). And the government submitted to the
jury identity and quantity-750 grams of heroin-in order to
obtain a higher mandatory-minimum sentence. See 21
U.S.C. § 841(b)(1)(B); Alleyne v. United
States, 570 U.S. 99, 113-14 (2013).
Wren cannot show a clear error of law and his first objection
number of Wren's other objections point to what he calls
newly-discovered evidence. Multiple times, Wren's
objections cite to the transcript of his codefendant's
plea hearing. At the plea hearing, Michael Cathey denied any
involvement in a conspiracy to distribute heroin, but
admitted his involvement in a conspiracy to distribute
marijuana. And the court accepted Cathey's plea to a
marijuana-only conspiracy, despite the fact that Cathey
signed a plea agreement admitting his involvement in a
heroin-distribution conspiracy (R. 152). As Wren's
coconspirator denied ever distributing heroin, Wren thinks he
could not have been convicted of a conspiracy to distribute
heroin. Bolstering his point, Wren says he has newly
discovered evidence suggesting that someone forged
Cathey's signature on the plea agreement.
down, Wren says all of this newly discovered evidence proves
his conviction is legally inconsistent with Cathey's plea
and thus a clear error of law. (R. 471, PageID.5647-5648.)
Yet Wren has presented a version of this argument before.
(See, e.g., R. 389, PageID.5087.) And it has been
rejected before. (R. 442, PageID.5324.) Wren's motion and
objections just repackage the argument yet again, and do not
explain how the prior rejection got it “dead
wrong.” (R. 471, PageID.5643, 5648.) As a Rule 59(e)
motion is not a vehicle to relitigate “old
issues” or “re-argue a case, ” J.B.F.
v. Ky. Dep't of Educ., 690 Fed.Appx. 906, 907 (6th
Cir 2017) (internal quotations omitted), Wren's second,
third, and fourth objections are overruled.
also thinks the sentencing transcript reveals
newly-discovered evidence for another reason. Wren says a DEA
agent testified at sentencing about a 2009 wiretap on
Wren's phone. Wren says the agent's testimony at the
sentencing conflicted with the agent's testimony at
Wren's trial. And Wren thinks the inconsistency undercuts
his involvement in a heroin-distribution ring.
discovered evidence means evidence “not previously
available” to Wren. Lonardo, 706 F.Supp.2d at
809. As Cathey's sentencing hearing took place in 2012
(R. 340), anything the agent said during that hearing was
available to Wren when he filed his motion to vacate in 2014
(R. 389). So the sentencing transcript is not newly
discovered evidence. See Gritton v. Disponett, 332
Fed.Appx. 232, 239 (6th Cir. 2009) (holding that witness
statements discovered post-judgment could have been
discovered pre-judgment and thus were previously available).
Wren's sixth and eighth objections are overruled.
Wren's objections are nonresponsive to the magistrate
judge's report. At one point Wren objects that the trial
court blocked his trial lawyer from admitting bank statements
to explain the source of moneys the government said flowed
from drug transactions. (R. 471, PageID.5652.) At other
points, Wren takes issue with the Sixth Circuit's
analysis of his sufficiency claim. (Id. at 5648-59.)
And finally, Wren thinks the magistrate judge is his opponent
and so says the magistrate judge has a conflict ...