Murr v. United States

• Court: Court of Appeals for the Sixth Circuit
• Decided: January 7, 2000
• Docket: 98-6202
• Status: Published

Opinion

RECOMMENDED FOR FULL-TEXT PUBLICATION Pursuant to Sixth Circuit Rule 206 ELECTRONIC CITATION: 2000 FED App. 0008P (6th Cir.) File Name: 00a0008p.06

UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT _________________

;  ROBERT DALE MURR,  Petitioner-Appellant,   No. 98-6202 v.  > UNITED STATES OF AMERICA,  Respondent-Appellee.  1

Appeal from the United States District Court for the Eastern District of Kentucky at Lexington. Nos. 97-00158; 90-00026—Henry R. Wilhoit, Jr., Chief District Judge. Argued: September 22, 1999 Decided and Filed: January 7, 2000 Before: MERRITT and CLAY, Circuit Judges; ALDRICH, District Judge.*

* The Honorable Ann Aldrich, United States District Judge for the Northern District of Ohio, sitting by designation.

1 2 Murr v. United States No. 98-6202

_________________ COUNSEL ARGUED: Herbert S. Moncier, Knoxville, Tennessee, for Appellant. James E. Arehart, OFFICE OF THE U.S. ATTORNEY, Lexington, Kentucky, for Appellee. ON BRIEF: Herbert S. Moncier, Knoxville, Tennessee, for Appellant. Frances E. Catron, OFFICE OF THE U.S. ATTORNEY, Lexington, Kentucky, for Appellee. _________________ OPINION _________________ CLAY, Circuit Judge. Petitioner, Robert Dale Murr, appeals an order entered by the district court denying Petitioner’s motion to vacate his narcotics trafficking conviction and sentence pursuant to 28 U.S.C. § 2255. For the reasons set forth below, we AFFIRM the judgment of the district court. BACKGROUND Procedural History 1. Eastern District of Tennessee Prosecution On August 22, 1989, a grand jury in the Eastern District of Tennessee issued a six-count indictment charging Petitioner with various narcotics trafficking offenses. Petitioner was charged with two counts of distribution of cocaine; the first count charged that Petitioner distributed ten ounces on July 4, 1989, and the second charged that he distributed 500 grams or more on August 17, 1989, in violation of 21 U.S.C. § 841(a)(1). Also, Petitioner was charged with four counts of using a telephone or telephone paging device to facilitate these cocaine distributions, in violation of 21 U.S.C. § 843(b). 22 Murr v. United States No. 98-6202 No. 98-6202 Murr v. United States 3

169 F.3d 1035, 1041 (6th Cir. 1999) (emphasis added). The On the eve of the Tennessee trial, the government proposed same holds true here. Under the facts of the instant case, the a plea agreement to Petitioner’s attorney. Following jury’s guilty verdicts on Counts 2 through 11 required the negotiations, the parties presented a conditional plea jurors to unanimously agree that Petitioner had committed at agreement to Eastern District of Tennessee Judge Jarvis on least three predicate narcotics violations and that these January 16, 1990. Judge Jarvis deferred acceptance of the violations were related to one another because they were all plea agreement, pending a presentence investigation. The part of the cocaine distribution conspiracy. presentence investigation was completed on April 10, 1990. On June 12, 1990, Judge Jarvis accepted the plea agreement Accordingly, the district court’s failure to expressly instruct and sentenced Petitioner to 63 months of imprisonment and jurors that they must unanimously agree which offenses a $70,000 fine. As part of this agreement, the government constitute the CCE did not have a substantial and injurious agreed not to further charge Petitioner in the Eastern District influence or effect on the jury’s guilty verdict in the CCE of Tennessee or in the Northern District of Georgia for certain count. See Long, 190 F.3d at 476 n.3 (concluding that the offenses of which it had knowledge. district court’s failure to give the CCE unanimity instruction required under Richardson “was clearly harmless as the jury 2. Eastern District of Kentucky Prosecution also unanimously found him guilty of more than three drug violations committed in the course of the ongoing conspiracy In February of 1990, during the presentence investigation to distribute cocaine”); Escobar-de Jesus, 187 F.3d at 162 mentioned above, the government uncovered facts indicating (holding that the erroneous CCE instruction was harmless that Petitioner had been a leader in a cocaine trafficking where “[t]he evidence introduced to support the separate conspiracy in the Eastern District of Kentucky. Subsequently, convictions on the [predicate narcotics violations] also in March of 1991, while Petitioner was serving the sentence establishes inescapably their relatedness”). imposed in the Tennessee prosecution, a grand jury in the Eastern District of Kentucky issued an indictment charging Accordingly, the district court’s failure to instruct the jurors Petitioner and twelve other defendants with narcotics that they must unanimously agree about which narcotics trafficking and related offenses. Specifically, Petitioner was violations constitute the “continuing series” of violations for charged with 1) conspiracy to distribute cocaine in violation CCE purposes does not require vacatur of Petitioner’s CCE of 21 U.S.C. § 846 (Count 1); 2) eleven substantive counts of conviction and sentence because the error was harmless. cocaine possession with the intent to distribute, and aiding and abetting, in violation of 21 U.S.C. § 841(a)(1) and 18 For the reasons set forth above, we AFFIRM the judgment U.S.C. § 2 (Counts 2 through 12); and 3) conducting a of the district court. continuous criminal enterprise (“CCE”) in violation of 21 U.S.C. § 848 (Count 13). On October 9, 1991, a jury trial resulted in Petitioner’s conviction on Counts 1 through 11 and Count 13 of the indictment. The district court later vacated Petitioner’s conviction on Count 10 as duplicitous of Count 9; Petitioner’s conspiracy conviction under Count 1 was vacated because it merged with his CCE conviction under Count 13. Petitioner was ultimately sentenced to 240 months imprisonment, to be 4 Murr v. United States No. 98-6202 No. 98-6202 Murr v. United States 21

served concurrently with his prior drug sentence from the • May 8 and 9, 1989 (counts 9 and 10); and Eastern District of Tennessee. Petitioner’s conviction and sentence were subsequently affirmed on direct appeal. See • May 18, 1989 (count 11).3 United States v. Phibbs, 999 F.2d 1053 (6th Cir. 1993), cert. denied, 510 U.S. 1119 (1994). (J.A. at 156-63.) At trial, the government presented substantial evidence that these narcotics violations were 3. Petitioner’s § 2255 Motion to Vacate his Eastern committed as part of the wide-ranging conspiracy, headed by District of Kentucky Conviction and Sentence Petitioner, to acquire and distribute cocaine. Notably, Petitioner — who does not contest the accuracy of the On April 23, 1997, Petitioner filed the § 2255 motion evidence presented at trial — nowhere contends that these currently on appeal to vacate his conviction and sentence violations were isolated events that by chance happened in imposed in the Eastern District of Kentucky. Petitioner sequence and involved the same people. principally argued that, in light of the preceding Tennessee conviction, his Kentucky conviction for substantive cocaine In United States v. King, a case with a strikingly similar fact violations and for operation of a CCE involving cocaine pattern, this Court held that the district court’s failure to give distribution violated his rights under the Double Jeopardy and the CCE unanimity instruction could amount to no more than Due Process Clauses of the Fifth Amendment, and under harmless error where the trial evidence made clear that the principles of res judicata. predicate narcotics violations were part of a “continuing series”: On March 31, 1998, the magistrate judge assigned to the case recommended that Petitioner’s motion be denied. In this case, King [the defendant] was convicted on all of Petitioner subsequently filed objections to the magistrate’s the underlying predicate offenses. We thus have no Report and Recommendation. On July 6, 1998, the district doubt that the jury was unanimous in finding that King court issued an opinion and order adopting the magistrate’s committed not only three, but nine marijuana-related Report and Recommendation, and dismissing Petitioner’s predicate offenses. Moreover, the evidence presented to § 2255 motion. Petitioner then moved to vacate the order the jury clearly established that these offenses were dismissing his § 2255 motion on grounds not raised in the related to one another, because they were all a part of original petition; this last motion was denied on August 10, King’s ongoing distribution business. King has never 1998. claimed otherwise. Given this record, no rational jury could unanimously find King guilty of the underlying In denying Petitioner’s § 2255 motion, the district court predicate offenses without also unanimously finding that granted a certificate of appealability on only two issues: (i) they were related to each other. Consequently . . . the whether Petitioner was subject to double jeopardy; and (ii) alleged error did not affect the verdict in this case and whether Petitioner was entitled to severance from one of his was harmless. co-defendants for purposes of trial. Petitioner then filed a timely notice of appeal.

3 The jury acquitted Petitioner of count 12, which charged cocaine possession with the intent to distribute on April 11, 1990 — after Petitioner had already been in federal custody for at least eight months. 20 Murr v. United States No. 98-6202 No. 98-6202 Murr v. United States 5

sure that the error had no or very slight effect or influence on Facts the jury’s decision, the verdict and judgment must stand. O’Neal v. McAninch, 513 U.S. 432, 436-38 (1995). To The following factual background is taken directly from warrant habeas relief because of incorrect jury instructions, this Court’s opinion affirming Petitioner’s conviction and Petitioner must show that the instructions, as a whole, were so sentence on direct appeal. See Phibbs, 999 F.2d at 1060-62. infirm that they rendered the entire trial fundamentally unfair. See Estelle v. McGuire, 502 U.S. 62, 72 (1991). On February 23, 1990, Jerry Parks was detained by FBI agents in Nashville, Tennessee, in connection with an The error here was harmless. First, the jury’s decision to ongoing drug investigation. After discussions with the convict Petitioner on Counts 2 through 11 of the indictment government, he agreed to cooperate in the probe. — which were alleged to be predicate violations supporting Parks revealed that his friend, Robert Murr, had visited the CCE count — necessarily establishes that the jurors him a number of times during the summer of 1988 when agreed unanimously that he was guilty of those offenses. Parks was residing in a federal ‘halfway house’ in “This decision ensures that the concern at the core of the Bowling Green, Kentucky. On some of these occasions, Richardson decision — namely, that jurors might convict on Murr would deliver cocaine to him to sell. Murr wanted the basis of violations for which there was non-unanimity — Parks to come to Knoxville, Tennessee, to work for him is not present.” Escobar-de Jesus, 187 F.3d at 162. in his drug distribution venture. He directed Robert Phibbs, who was on the payroll of one of Murr’s Second, given the evidence adduced at trial, in finding legitimate businesses, Automotive Enterprises, to write Petitioner guilty of Counts 2 through 11, the jury necessarily a letter to Parks’ federal probation officer requesting that made factual findings establishing that these violations were he be allowed to transfer to the Knoxville area. Murr related to one another. As noted, § 848(c) requires that jurors told Phibbs to promise the probation authorities that agree that the “series” of narcotics violations be “continuing” Parks would be provided with a job at Automotive in nature — in other words, that they be related to each other Enterprises. His efforts were rewarded, and Parks was in some way. See, e.g., United States v. Edmonds, 80 F.3d permitted to move to Knoxville. 810, 822 (3d Cir. 1996) (en banc) (holding that the jury must Parks’ position at Automotive Enterprises was a unanimously agree that the underlying narcotics violations subterfuge; he actually spent his time helping Murr were “related” to each other for CCE purposes). In the instant distribute cocaine. In August of 1988, Murr arranged to case, Counts 2 through 11 each charged that while in sell four kilograms of cocaine to Billie Dye and David Lexington, Kentucky, the defendants, including Petitioner, Hurt. Parks and Dye gathered approximately $100,000 possessed cocaine with the intent to distribute, in violation of in cash and, pursuant to Murr’s instructions, started out 21 U.S.C. § 841(a)(1) and 18 U.S.C. § 2, on or about the in Lexington, Kentucky, where they were to meet with following time periods: Murr. . . . [T]he transaction was consummated the next day. • August 25, 1988 (count 2); Beginning in September of 1988, Parks traveled with Murr and another drug dealer named Tommy McKeehan • September, October and November of 1988 (counts 3, to the Lexington area every few weeks to obtain multi- 4 and 5); kilogram quantities of cocaine. During the first such trip, Parks became acquainted with Murr’s drug source, • February, March and April of 1989 (counts 6, 7 and 8); Kenneth Lawson. Whenever Murr needed cocaine, he 6 Murr v. United States No. 98-6202 No. 98-6202 Murr v. United States 19

went with McKeehan to a pay telephone and called elements, namely the several ‘violations,’ in respect to each Lawson. After a deal had been struck, Murr, Parks and of which the jury must agree unanimously and separately.” McKeehan would meet at Judy Murr’s [Petitioner’s ex- Id. at 1710. Because the Court engaged in such deliberations, wife] residence early in the morning before leaving for Petitioner claims that the decision in Richardson was a matter Kentucky. Murr and McKeehan would then organize the of substantive law, and therefore, Teague does not apply. As money to be used in the sale into $1,000 bundles, putting a result, the holding in Richardson should apply retroactively. these stacks in brown paper bags. We agree with Petitioner’s contention. Aside from taking part in these trips, Parks served as the ‘front man’ for the drug distribution ring. Murr Richardson involves the substantive construction of a introduced Parks to his regular cocaine customers, criminal statute. The Court in Richardson examined the including Raymond Huckelby and Edward Rogers. At meaning of § 848(c)’s phrase “series of violations,” and such meetings, Murr would instruct Parks with regard to determined that it meant the jury must agree that the the amount of cocaine to be supplied, the price of the defendant committed some continuing series of violations, drug, and how often it was to be furnished. He would and which specific violations make up that continuing series. then tell Parks and the purchaser to exchange telephone Richardson, 119 S. Ct. at 1713. Therefore, in light of numbers, beeper numbers, and beeper codes in order to Bousley, Richardson applies retroactively because it set forth stay in contact. For several months, Parks delivered substantive law. See Bousley, 118 S. Ct. at 1609. drugs to Murr’s customers in this fashion. When Murr was unavailable, Parks would turn over the money he The analysis does not, however, end at this point. We received in return to either Phibbs or to Judy Murr. affirm Petitioner’s CCE conviction and sentence because the In October of 1988, Parks first encountered Victor harmless error doctrine applies and the district court’s error in Rojas while on one of the excursions to Kentucky he failing to instruct the jury was harmless. The Richardson made with Murr and McKeehan to buy cocaine. Rojas, Court noted the application of harmless error in such who was Lawson’s supplier, brought the drugs to the instances, as it remanded the case to the United States Court location where the sale would take place. . . . of Appeals for the Seventh Circuit to determine “whether to Parks, Murr, and McKeehan would either give their engage in harmless error analysis, and if so, whether the error money to Lawson or he would leave it in Rojas’ vehicle, was harmless in this case.” Richardson, 119 S. Ct. at 1713. taking the cocaine for which they had paid. McKeehan See Neder v. United States, 119 S. Ct. 1827, 1837 (1999) would then be given his share. After the drugs were (holding that the trial court’s omission during its jury driven back to Knoxville, Parks and Murr stashed them instructions of an essential element of the offense charged is at the house Murr rented for his girlfriend, Diane Whited. subject to harmless error review); United States v. Escobar-de She stored the cocaine in the attic in a green duffel bag Jesus, 187 F.3d 148, 161 (1st Cir.1999) (holding that the with a padlock on it. In order for Parks to get the cocaine district court’s failure to include a CCE unanimity instruction from Whited’s house to distribute, he would have to under Richardson was only harmless error). contact Murr, who, in turn, would call Whited to set up a time for the two of them to come over. Parks went to Moreover, for purposes of federal habeas corpus review, a Whited’s residence 15 to 20 times in the fall of 1988 to constitutional error that implicates trial procedures shall be pick up drugs. On at least one occasion, Whited assisted considered harmless unless it had a "substantial and injurious Murr and Parks in breaking down the cocaine into salable effect or influence in determining the jury's verdict." Brecht quantities. v. Abrahamson, 507 U.S. 619, 637 (1993). If this Court is 18 Murr v. United States No. 98-6202 No. 98-6202 Murr v. United States 7

applies retroactively; therefore, his CCE conviction and Keeping the cocaine at Whited’s house proved to be sentence must be vacated because the district court failed to unworkable because Parks needed ready access to the so instruct the jury. stash, and Murr would not let Parks enter the house without him. At the end of November 1988, Murr told In Griffith v. Kentucky, 479 U.S. 314, 328 (1987), the Parks to bury the cocaine in a pipe on the side of a hill Supreme Court held that “a new rule for the conduct of behind Automotive Enterprises. The only person besides criminal prosecutions is to be applied retroactively to all Parks who knew exactly where the drugs were hidden cases, state or federal, pending on direct review or not yet was Phibbs. final.” In Teague v. Lane, 489 U.S. 288 (1989), the Court The drug distribution ring was so successful that Murr later modified this rule to answer questions of retroactivity for and Lawson talked about what should be done with the cases on collateral review. In Teague, the Court stated that rather substantial profits. Murr recognized that he could as a general rule, “new constitutional rules of criminal ‘launder’ some of the funds through his business partner, procedure will not be applicable to these cases which have Ernie Nicely. The companies that he had established become final before the new rules are announced.” Id. at 310. with Nicely were not doing so well, so Murr began to The Court then set forth two exceptions to this general rule. funnel money to him to keep them afloat. Nicely First, a new rule should apply retroactively if it places “certain understood that the bulk of this money was derived from kinds of primary, private individual conduct beyond the drug sales. power of the criminal law-making authority to proscribe.” Id. After November of 1988, Murr no longer wanted to at 311 (citation and internal quotation marks omitted). accompany Parks and McKeehan to Kentucky to obtain Second, a new rule should apply retroactively if it requires the cocaine. Consequently, he sent the two of them alone to observance of “those procedures that are implicit in the complete deals in February, March, April, and May of concept of ordered liberty.” Id. (citation and internal 1989. . . . quotation marks omitted). Hence, the central issue of whether [O]n May 22, 1989, the Knoxville police arrested retroactivity applies is whether Teague applies. Teague only Parks for burglary. He was wounded while in the process applies if the new case for which retroactive effect is sought of being apprehended. The authorities subsequently announces a procedural rule; if the new case announces a seized a set of electronic scales and six address books substantive rule, Teague does not apply. See Bousley v. from him. One of these books contained Parks’ drug- United States, 118 S. Ct. 1604, 1609 (1998). related activities that month, and included a coded list of some of Murr’s customers, as well as a description of the Richardson involves the issue of jury unanimity. There, the drug ring’s cocaine inventory. Court determined that a jury must unanimously agree not only Despite Parks’ arrest, the drug ring continued to that the defendant committed some “continuing series of operate. Jim Hurt soon took over some of Parks’ violations,” but also about which specific “violations” make functions, delivering cocaine for Murr to Edward Rogers, up that “continuing series.” Richardson, 119 S. Ct. at 1713. and possibly others. However, when Rogers complained To arrive at this holding, the Court interpreted 21 U.S.C. about the poor quality of the cocaine that Hurt was § 848, the Continuing Criminal Enterprise statute. The Court selling him, Murr began to personally supply Rogers. stated that “we must decide whether the statute’s phrase This continued until August of 1989, when Murr himself ‘series of violations’ refers to one element, namely a ‘series,’ was arrested on federal drug charges. . . . in respect to which the ‘violations’ constitute the underlying Murr had entered into a plea agreement with the brute facts or means, or whether those words create several government in January of 1990 in the Eastern District of 8 Murr v. United States No. 98-6202 No. 98-6202 Murr v. United States 17

Tennessee. It was not until Parks had been questioned in III. Specific Unanimity Jury Instruction / Retroactive late February of 1990 that the government became aware Application of Richardson. of Murr’s cocaine venture extending into Kentucky. The district court’s failure to instruct the jurors that they DISCUSSION must unanimously agree about which narcotics violations constitute the “continuing series” of predicate violations for Standard of Review continuing criminal enterprise purposes, does not require that Petitioner’s CCE conviction and sentence be vacated.2 “In reviewing the denial of a 28 U.S.C. § 2255 petition, this Court applies a de novo standard of review of the legal issues In order to sustain a conviction for engaging in a CCE, the and will uphold the factual findings of the district court unless government must prove (i) a felony violation of a federal they are clearly erroneous.” Hilliard v. United States, 157 narcotics law; (ii) as a part of a “continuing series” of at least F.3d 444, 447 (6th Cir. 1998). Where no evidentiary hearing three violations; (iii) “in concert with five or more persons”; is held, the district court’s denial of the motion will be upheld (iv) for whom the defendant is an organizer, supervisor or where “the files and records of the case conclusively establish manager; and (v) from which he derives substantial income or that the prisoner is entitled to no relief.” 28 U.S.C. § 2255 resources. See 21 U.S.C. § 848(c)(1994). In Richardson v. (1994); Baker v. United States, 781 F.2d 85, 92 (6th Cir. United States, 119 S. Ct. 1707, 1713 (1999), the Supreme 1986). Court held for the first time that a jury must unanimously agree on which specific violations constitute the “continuing I. Double Jeopardy series” of three or more predicate violations required to prove that a defendant engaged in a CCE. Moreover, the Court held Petitioner first argues that his constitutional rights were that the district court erred by failing to instruct the jurors that violated because the government knew of the facts underlying the “violations” are themselves elements of the CCE and, his subsequent conviction in the Eastern District of Kentucky therefore, the jury was required to agree unanimously about before Petitioner was convicted in the Eastern District of which three (or more) related drug crimes Petitioner Tennessee. We disagree. committed. Id. On appeal, Petitioner argues that Richardson It is well-settled law that failure to raise an argument at trial or on direct appeal is waived on collateral review under 2 Following oral argument, the Court allowed Petitioner to file a § 2255, absent a showing of both cause and actual prejudice. supplemental brief only on the CCE issue. The government was permitted United States v. Frady, 456 U.S. 152 , 164-65, 167 (1982). to respond. On October 22, 1999, Petitioner filed a Supplemental Brief In this case, Petitioner’s double jeopardy claim has been and Addendum, in which Petitioner argued that the district court’s order raised for the first time on collateral review. Petitioner did denying the § 2255 motion should be reversed because the district court not present this issue at pretrial, at trial, or on direct appeal. did not consider that the government allegedly knew all facts forming the basis for the subsequent prosecution in Kentucky before the final Rather, on direct appeal, Petitioner argued only that his judgment was entered on the Tennessee charges. Petitioner did not argue prosecution in the Eastern District of Kentucky violated his or provide any information regarding the CCE issue. Hence, Petitioner’s earlier plea agreement in the Eastern District of Tennessee. supplemental brief and addendum was not submitted in compliance with Petitioner makes no effort to show cause to excuse this this Court’s order and we will not consider the arguments raised by procedural default, nor has he attempted to show that he Petitioner in his Supplemental Brief. See, e.g., United States v. Universal Management Servs., Inc. Corp., 191 F.3d 750, 759 (6th Cir. 1999) (citing suffered “actual prejudice” from the alleged error that would Wright v. Holbrook, 794 F.2d 1152, 1156 (6th Cir. 1986) (refusing to consider argument raised for the first time by plaintiff in reply brief)). 16 Murr v. United States No. 98-6202 No. 98-6202 Murr v. United States 9

Petitioner has not made the required showing of factually undermine the entire integrity of the trial, as required under specific and compelling prejudice as a result of the joint trial. Frady. Id. at 168-70. He offers absolutely no evidence in support of his claim that Lawson’s absence constituted extreme prejudice to him in Petitioner failed to meet the standards of Frady; he is that the jury assumed that Lawson’s absence indicated that therefore barred from raising his double jeopardy claim for Petitioner was guilty. Indeed, the facts on record indicate the first time on collateral attack under § 2255. See, e.g., otherwise. First, as this Court noted on direct appeal, the Napier v. United States, 159 F.3d 956 (6th Cir. 1998) district court issued curative instructions admonishing the jury (holding that claims raised for the first time on collateral to disregard Lawson’s absence in determining the guilt or attack under § 2255 are waived, where petitioner fails to make innocence of any co-defendant, and instructing the jury to the required showing of both cause and actual prejudice for consider only the evidence against each particular defendant his failure to raise these claims earlier); see also United States in determining his or her guilt or innocence. See Zafiro, 506 v. Branham, 97 F.3d 835, 842 (6th Cir. 1996) (noting that U.S. at 539 (stating that while separate trials may be “[t]he defense of double jeopardy is personal and is capable necessary if the risk of prejudice is high, “less drastic of waiver”). measures, such as limiting instructions, often will suffice to cure any risk of prejudice”); United States v. Mays, 69 F.3d In any event, Petitioner’s double jeopardy argument also 116, 120 (6th Cir. 1995) (holding that threat of “spillover fails on the merits. The Double Jeopardy Clause provides evidence” did not require severance where the district court that no person shall “be subject for the same offense to be instructed the jury to consider the culpability of each twice put in jeopardy of life or limb.” U.S. CONST. amend. V. defendant separately). Double jeopardy protection “applies both to successive punishments and to successive prosecutions for the same Second, also noted on direct appeal, the jury acquitted co- criminal offense.” United States v. Dixon, 509 U.S. 688, 696 defendant William Baird, a close friend and business (1993). In determining whether a defendant has been associate of Lawson, although charged in multiple counts subjected to successive prosecutions for the same offense, this along with Lawson. This strongly suggests that the jury made Court applies the “same elements” test originally set forth in the required individualized determination of each defendant’s Blockburger v. United States, 284 U.S. 299 (1932). “That test guilt, without allowing Lawson’s absence to prejudice his co- asks whether each offense contains an element not contained defendants. See, e.g., United States v. Rugiero, 20 F.3d 1387, in the other. A defendant will be considered placed in double 1391 (6th Cir. 1994) (stating that the jury’s acquittal of some jeopardy only if ‘every violation of one statute entails a co-conspirators while others were convicted demonstrated violation of another.’” United States v. Forman, 180 F.3d that the jury was able to consider the evidence and charges 766 (6th Cir. 1999) (citation omitted) (holding that a against each defendant individually). defendant previously acquitted of obstruction of justice and criminal contempt could be subsequently tried for theft of Accordingly, the district court properly denied Petitioner’s government property and conversion, even though both § 2255 motion upon finding that Petitioner was not entitled to prosecutions arose from the same underlying conduct). severance from co-defendant Kenneth Lawson for purposes of trial, even though Lawson was tried in absentia. Petitioner urges this Court to follow Rashad v. Burt, 108 F.3d 677 (6th Cir. 1997), cert. denied, 522 U.S. 1075 (1998). In Rashad, the arresting officers discovered cocaine in the defendant’s house and car. As a result, the defendant was 10 Murr v. United States No. 98-6202 No. 98-6202 Murr v. United States 15

tried separately for the cocaine found in the different Second, Crosby does not alter the conclusion this Court locations. Rashad, 108 F.3d at 679. This Court, applying the reached on direct appeal. Crosby does not directly apply to “same evidence” test, held that the state violated defendant’s Petitioner because Petitioner was present at trial; nor can double jeopardy rights. Id. at 680. However, the Forman Petitioner claim that his trial was tainted by an error of Court recently held that Rashad was limited to its unique constitutional dimensions because Crosby held only that a facts, in that “the issue . . . was whether the defendant had trial in absentia is prohibited by Federal Rule of Criminal committed one as opposed to two discrete violations of the Procedure 43. The Crosby Court did not address whether a same statute, not whether the defendant was charged twice for trial in absentia is also prohibited by the Constitution. the same violation.” Forman, 180 F.3d at 769. In light of the Further, Petitioner cannot point to authority holding that Supreme Court’s express rejection of the “same evidence” violation of a co-defendant’s rights under the Federal Rules test in Dixon, this Court held that Rashad “is to be limited in of Criminal Procedure constitutes a violation of Petitioner’s its application to circumstances such as were present in the constitutional rights. case.” Id. at 770. Accordingly, we see no reason to depart from this Court’s The circumstances here are distinguishable, given that the earlier conclusion that severance was not required. “As a two indictments charge different violations on different days, general rule, persons jointly indicted should be tried in different places, which involve different people. together.” United States v. Stull, 743 F.2d 439, 446 (6th Cir. Comparison of the charges in the two prosecutions reveals no 1984). Further, “[t]he jury must be presumed capable of double jeopardy violation. Both the offenses charged as well sorting out the evidence and considering the cases of each as the underlying conduct that gave rise to the two separate defendant separately.” United States v. Welch, 97 F.3d 142, prosecutions are distinct. Petitioner’s conviction in the 147 (6th Cir. 1996); United States v. Moore, 917 F.2d 215, Eastern District of Tennessee arose out of Petitioner’s sale of 222 (6th Cir. 1990). The district court should grant severance cocaine to an individual named Bobby Freeman on two to properly joined defendants “only if there is a serious risk specific occasions (July 4, 1989, and August 17, 1989) in that a joint trial would compromise a specific trial right of one Tennessee. Accordingly, the government needed only to of the defendants, or prevent the jury from making a reliable prove that Petitioner knowingly or intentionally distributed judgment about guilt or innocence.” Zafiro v. United States, cocaine to Bobby Freeman in Tennessee on those two specific 506 U.S. 534, 539 (1993); United States v. Long, 190 F.3d dates. 471, 476 (6th Cir. 1999). Lastly, the defendant bears the burden of producing “a strong showing of factually specific Petitioner’s conviction in the Eastern District of Kentucky, and compelling prejudice” that will “mislead or confuse the on the other hand, arose out of his role in obtaining cocaine in jury.” Moore, 917 F.2d at 221; United States v. Davis, 177 Lexington, Kentucky, between August 1988 and May 1989, F.3d 552, 558 (6th Cir. 1999) (stating that “a defendant with the intent to subsequently distribute the cocaine he seeking severance at trial from co-defendants bears a strong acquired. As noted, he was charged with a conspiracy count, burden and must demonstrate substantial, undue, or a CCE count, and eleven narcotics trafficking counts alleging compelling prejudice”). If the defendant is “able to show cocaine possession in Lexington with the intent to distribute. some potential jury confusion, such confusion must be Evidence at the Kentucky trial established that Petitioner balanced against society’s interest in speedy and efficient made or directed several trips into the Lexington area with his trials.” Moore, 917 F.2d at 221. co-conspirator, Jerry Parks, to buy cocaine from co- defendants Victor Rojas and Kenneth Lawson, which 14 Murr v. United States No. 98-6202 No. 98-6202 Murr v. United States 11

instruction that each defendant’s case was to be Petitioner intended to later sell to his own customers. This considered separately and, further, that Lawson’s flight conduct gave rise to the eleven substantive cocaine offenses could not be used as evidence against anyone but him. charged in the Eastern District of Kentucky indictment: The jury appears to have heeded the court’s admonition, possession of cocaine with the intent to distribute. as defendant William Baird, allegedly a close companion of Lawson’s, was acquitted of conspiracy. Other Further, there is no double jeopardy problem under defendants were acquitted of some of the distribution Blockburger. Petitioner’s violation of federal drug laws in counts brought against them. Thus, the jury was plainly Kentucky were distinct from his criminal acts in Tennessee. able to view them as distinct individuals in rendering its A jury could find that Petitioner distributed cocaine to Bobby verdicts. As this was so, the district court did not abuse Freeman on July 4 and August 18, 1989, in Tennessee, and its discretion in denying the motion to sever Lawson. not find that he repeatedly possessed cocaine in Lexington with intent to distribute, as alleged in the Kentucky Phibbs, 999 F.2d at 1067-68. indictment. Similarly, a jury could easily find that Petitioner committed the substantive narcotics violations in Kentucky On collateral attack, Petitioner urges this Court to without having sold cocaine to Bobby Freeman in Tennessee, reconsider this conclusion in light of the Supreme Court’s as alleged in the Tennessee indictment. Whereas the offenses decision in Crosby v. United States, 506 U.S. 255 (1993). In charged had different elements and arose out of separate Crosby, the Court held that Federal Rule of Criminal conduct, conviction in one case simply would not require Procedure 43 prohibits the trial in absentia of a defendant who conviction in the other. As Magistrate Judge James B. Todd is not present at the beginning of trial. Crosby, 506 U.S. at concluded in his Report and Recommendation: 753. Petitioner argues that because Lawson’s rights under the Federal Rules of Criminal Procedure were violated by his trial Here, the two indictments charge different violations on in absentia, Lawson’s case could not be tried. If, as Petitioner different days, in different places, which involve different claims, Lawson’s case could not be tried, Petitioner contends people. The simple fact that all of the charges against that his case, in turn, could not be properly joined with an un- Murr involve cocaine does not automatically invoke a triable case. threat of double jeopardy. The Tennessee [distribution] convictions and the Kentucky possession with intent to First, we note that on the issue of absentia, Petitioner does distribute convictions (counts 2 through 9 and 11) clearly not seek to assert the rights of Lawson. Rather, Petitioner involve distinctive transactions and conduct which are all takes the position that his own entitlement to a fair trial was violative of federal laws. Therefore, the Kentucky denied by the adverse effect of co-defendant Lawson’s convictions for possession with intent to distribute do not absence. Therefore, Petitioner has standing to raise the pose any threat to the Defendant’s privilege against absentia issue. See United States v. Edmonson, 962 F.2d double jeopardy. 1535, 1544 n.1 (10th Cir. 1992); United States v. Candoli, 870 F.2d 496, 501 (9th Cir. 1989) (stating that while (J.A. at 171-72.) defendant could not challenge the propriety of a jury instruction regarding the flight of her co-defendant, she could Lastly, we note that Petitioner’s CCE conviction in the challenge it on the ground that it prejudiced her right to a fair Eastern District of Kentucky following his Tennessee trial). conviction on cocaine distribution charges, did not violate double jeopardy principles, even if his cocaine sales to Bobby Freeman were part of the wide-ranging conspiracy alleged in 12 Murr v. United States No. 98-6202 No. 98-6202 Murr v. United States 13

Counts 1 and 13 of the Kentucky indictment. “A substantive fundamentally unfair because he was prejudiced by Lawson’s crime and a conspiracy to commit that crime are not the ‘same absence. We disagree.1 offense’ for purposes of double jeopardy, even if based upon the same underlying indictments, ‘because the essence of a This Court rejected the same argument on direct appeal conspiracy offense is in the agreement or confederation to when it was raised by co-defendant Diane Whited, and instead commit a crime.’” United States v. Medina, 992 F.2d 573, concluded that the district court did not abuse its discretion in 588 (6th Cir. 1993) (quoting United States v. Felix, 503 U.S. denying the severance motion: 378, 389-90 (1992)). In Felix, the Supreme Court held that the defendant’s conspiracy conviction did not violate his In the instant case, a large portion of the evidence double jeopardy rights even though he had already been presented, including that related to Lawson, was prosecuted for two of the predicate acts supporting the applicable to each defendant to show the scope of the conspiracy charge. Felix, 503 U.S. at 391-92. charged conspiracy. While Lawson was not there to “challenge” his alleged participation at trial, his co- We believe the same holds true here. Since Petitioner’s defendants had the opportunity to convince the jury that CCE conviction required proof of various elements entirely they were not associated with him. absent from the cocaine distribution offenses alleged in the Eastern District of Tennessee indictment, there is no double The fact that a defendant sought to escape prosecution is jeopardy violation. See Garrett v. United States, 471 U.S. usually relevant in establishing culpability, so we 773, 779 (1985) (stating that “Congress intended the CCE understand Whited’s anxiety about “transferred guilt” provision to be a separate criminal offense which was due to Lawson’s flight. However, the district court punishable in addition to, and not as a substitute for, the neutralized any adversity Lawson may have caused his predicate offenses”); United States v. Smith, 963 F.2d 892, co-defendants by his actions. It gave a cautionary 894 (6th Cir. 1992) (holding that the defendant’s conviction on a marijuana charge did not violate double jeopardy principles, even though that charge had been one of the 1 predicate acts identified under the CCE charge of which he Before moving to the merits, we note that Petitioner’s argument may be procedurally barred. Petitioner did not raise this claim in his initial had previously been convicted). Accordingly, the district § 2255 motion. Rather, it was first raised in his supplemental objections court properly denied Petitioner’s § 2255 motion upon finding to the magistrate judge’s final Report and Recommendation. The that his double jeopardy rights were not violated by his CCE magistrate thus never had the opportunity to consider this issue. Courts and cocaine possession with intent to distribute convictions in have held that while the Magistrate Judge Act, 28 U.S.C. § 631 et seq., Kentucky following his conviction on two cocaine permits de novo review by the district court if timely objections are filed, distribution counts in Tennessee. absent compelling reasons, it does not allow parties to raise at the district court stage new arguments or issues that were not presented to the magistrate. See United States v. Waters, 158 F.3d 933, 936 (6th Cir. II. Severance from co-defendant Kenneth Lawson for 1998) (citing Marshall v. Chater, 75 F.3d 1421, 1426-27 (10th Cir. 1996) purposes of trial. (“issues raised for the first time in objections to magistrate judge’s report and recommendation are deemed waived”)); see also Cupit v. Whitley, 28 Petitioner contends that the district court’s refusal to grant F.3d 532, 535 (5th Cir. 1994); Paterson-Leitch Co., Inc. v. Massachusetts his motion to sever Lawson’s case rendered his trial Mun. Wholesale Elec. Co., 840 F.2d 985, 990-91 (1st Cir. 1988); Anna Ready Mix, Inc. v. N.E. Pierson Constr. Co., Inc., 747 F. Supp. 1299, 1302-03 (S.D. Ill. 1990). Hence, Petitioner’s failure to raise this claim before the magistrate constitutes waiver. Nonetheless, Petitioner’s claim fails on the merits.