Ross v. United States

• Court: Court of Appeals for the Sixth Circuit
• Decided: August 6, 2003
• Docket: 01-4129
• Status: Published

Opinion

RECOMMENDED FOR FULL-TEXT PUBLICATION Pursuant to Sixth Circuit Rule 206 2 Ross v. United States No. 01-4129 ELECTRONIC CITATION: 2003 FED App. 0273P (6th Cir.) File Name: 03a0273p.06 UNITED STATES ATTORNEY, Columbus, Ohio, for Appellee. UNITED STATES COURT OF APPEALS _________________ FOR THE SIXTH CIRCUIT OPINION _________________ _________________

MARK ROSS , X CLAY, Circuit Judge. Petitioner Mark Ross appeals an order denying his request for habeas relief pursuant to 28 Petitioner-Appellant, - U.S.C. § 2255, following Petitioner’s conviction for - - No. 01-4129 conspiracy to distribute cocaine and possession with intent to v. - distribute cocaine in violation of 21 U.S.C. § 846, conspiracy > to commit money laundering in violation of 18 U.S.C. , § 1956(h), and two counts of money laundering in violation UNITED STATES OF AMERICA , - Respondent-Appellee. - of 18 U.S.C. § 1956(a)(1)(B)(i). For the reasons set forth below, we AFFIRM the district court. N Appeal from the United States District Court FACTS for the Southern District of Ohio at Columbus. No. 00-01358—George C. Smith, District Judge. Sometime in either late 1994 or early 1995, Donald Mohler, Jr., Robert Long, and Roberto Camero began smuggling Argued: June 11, 2003 marijuana into the United States from the Bahamas. Robert Long and Mohler brought loads of fifty to 200 pounds of Decided and Filed: August 6, 2003 marijuana to Columbus, Ohio, which they distributed through Mohler’s aunt, Karen Climer Collins. Before: KEITH, BATCHELDER, and CLAY, Circuit Judges. After the arrest of several of their couriers, Mohler and Robert Long stopped dealing marijuana and began selling _________________ cocaine. Mohler and Robert Long began bringing to Columbus cocaine supplied by Rodolpho Fernandez. Robert COUNSEL Long and Mohler concluded their partnership in early 1988. At that point, Karen Collins (hereinafter referred to as Karen ARGUED: Kevin M. Schad, SCHAD & COOK, Indian Long) married Robert Long, and the Longs continued to deal Springs, Ohio, for Appellant. Robyn Jones Hahnert, cocaine supplied by Fernandez. UNITED STATES ATTORNEY, Columbus, Ohio, for Appellee. ON BRIEF: Kevin M. Schad, SCHAD & COOK, Initially, Fernandez fronted the Longs one-half kilogram of Indian Springs, Ohio, for Appellant. Robyn Jones Hahnert, cocaine every two months. After about two years, Fernandez began fronting the Longs an entire kilogram every two

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months. This continued until 1992, when Mohler contacted “[Petitioner] knew the house was being bought with drug Robert Long again. Mohler could give Robert Long a better money. He said he would come up with something. Bob price on the cocaine than Robert Long received from [Robert Long] said [Petitioner] worked on it and that’s when Fernandez, so the Longs began dealing with Mohler instead. he made the contracts.” (J.A. at 625-26.) On October 1, 1993, undercover police arrested Patrick Paden, one of Mohler’s couriers, with one kilogram of Before preparing the Faber paperwork, Petitioner received cocaine. quantities of cocaine for personal use as gifts from the Longs. Donald Ross and Robert Long delivered the drugs. Robert Attempting to steal from his supplier, Juan Sierra, Mohler Long later claimed that he sometimes paid Petitioner for his told Sierra that he lost two kilograms in the arrest. Sierra legal services with cocaine. discovered Mohler’s deception and terminated their relationship. Sierra then asked Robert Long to assume According to Karen Long, Petitioner knew everything Mohler’s role. The Longs paid Sierra $27,000, and Sierra about the Longs’ drug business. She and her husband spoke delivered one kilogram for the money and fronted a second with Petitioner about their enterprise every time they met. kilogram. Karen Long passed information from Petitioner to the Rosses that helped the Rosses evade law enforcement. At one point, In November of 1993, the Longs purchased a new home on for instance, Karen Long told the Rosses to stop using 540 Blue Valley Road, outside of Lancaster, Ohio, for telephones because Petitioner had a tip that the Rosses were $87,000. The Longs initially occupied the Blue Valley under investigation. residence in April of 1994, but then moved to Florida in December of 1994. The Longs sold the Blue Valley property On July 16, 1995, Karen Long told the Rosses to take in April of 1995 for $175,000. Petitioner, an attorney, $20,000 in cocaine proceeds to Karen Long’s mother, so that handled the closing on the Longs’ behalf. her mother could post bond for Karen Long’s nephew, Charles Sullivan, Jr. Petitioner told Karen Long to post the After the Longs moved to Florida, they directed their Ohio bond because he feared Sullivan might start talking to police cocaine business through Donald and Marilyn Ross,1 who about the Longs’ drug trade. Karen Long later testified that lived in central Ohio. Donald Ross made approximately two she and her husband usually followed Petitioner’s advice. trips each month to Tennessee—one to pick up cocaine from Sierra, and another to deliver payment. Donald and Marilyn On July 29, 1995, law enforcement executed a number of Ross handled loads of up to eight kilograms per month. search warrants at homes belonging to Karen Long, members of her family, and Donald and Marilyn Ross. Petitioner In exchange for their assistance, the Rosses received a contacted the Longs in Florida, informed them of the raids, portion of the profits and a home at 1173 Faber Avenue. and traveled to Florida to meet with them. At Petitioner’s Petitioner handled all paperwork related to the purchase and direction, the Longs sold many of their assets and returned to sale of the Faber property in a manner intended to disguise the Ohio. transaction’s real purpose. Karen Long testified that The Longs gave Petitioner $60,000 from the sale of their assets. After Petitioner received the money, he placed liens 1 No relation to Petitioner. No. 01-4129 Ross v. United States 5 6 Ross v. United States No. 01-4129

on the Longs’ remaining pieces of real estate to prevent the Petitioner’s office. During these meetings, Petitioner and government from attaching them. Karen Long developed stories the Huffs could relay in the event the government offered them immunity or otherwise A grand jury subpoenaed records of all monies paid to, compelled them to testify. Following their instructions, the given to, or handled by Petitioner for the Longs. On Huffs later told the grand jury they knew nothing of the March 28, 1996, Petitioner prepared and produced two letters Longs’ drug business. summarizing monies the Longs paid to him for his activities. In those letters, Petitioner indicated that the Longs paid him PROCEDURAL HISTORY $5815 between May 29, 1990 and July 12, 1995, and $5800 from August 4, 1994 until February 2, 1996. These estimates On May 22, 1996, the grand jury indicted the Longs and dramatically understated the amount of money Petitioner nineteen co-conspirators on numerous counts of drug actually received because Petitioner did not include the trafficking and money laundering-related offenses. Until $60,000. September of 1996, Petitioner continued to represent Robert Long. Karen Long retained Michael McGinley. On The Rosses obtained counsel, Michael Holbrook, a friend September 5, 1996, the grand jury returned a Superseding of Petitioner’s. Holbrook discussed with them the possibility Indictment that added ten additional defendants, including of cooperating before indictment. While Holbrook Petitioner. In light of his indictment, Petitioner moved to represented the Rosses, Petitioner organized a rendezvous at withdraw as Robert Long’s counsel. The district court a local bar with both the Rosses and the Longs without granted the motion on September 27, 1996. On March 6, Holbrook present. By chance, Holbrook entered the bar, saw 1997, prior to trial, Robert Long and Rodolfo Fernandez, two the meeting, and argued with Petitioner about speaking with of the Ross’ co-defendants, requested a separate trial. They his clients without his knowledge. Shortly thereafter, argued that the evidence introduced against the co-defendants Holbrook ceased representing the Rosses. would unfairly prejudice them. The court rejected their respective motions. Petitioner also met with Kathy MacDonald, who worked with the Rosses in their distribution network. Petitioner told On March 5, 1997, the day before trial was scheduled to MacDonald not to say anything to anyone. MacDonald begin, Petitioner filed a motion for severance requesting that asked Petitioner if he was scared, because she knew he he be tried separately from Robert Long. Petitioner argued received cocaine in exchange for legal services performed for that he planned to call Robert Long as a witness in his the Longs. Petitioner told her he was not worried because the defense. authorities could only convict him for money laundering. At the trial, Petitioner testified that he represented the Two other individuals who worked for the Rosses, Sally Longs. He admitted receiving gifts of cocaine from Robert and Lonnie Huff, met with Petitioner. Petitioner told the Long, delivered either by Donald Ross or Robert Long Huffs that perjury would result in nothing more than a fine or himself. Petitioner acknowledged handling the Longs’ a very light sentence. Additionally, Petitioner informed the financial transactions and conceded that “it wouldn’t take a Huffs that the government could revoke any immunity it rocket scientist to know that they are somehow involved in offered once the Huffs incriminated themselves by testifying. [the drug trade].” (J.A. at 965.) Yet throughout his The Huffs also met with Karen Long and Petitioner in testimony, Petitioner denied both that he knew the extent of No. 01-4129 Ross v. United States 7 8 Ross v. United States No. 01-4129

the Longs’ cocaine enterprise and that he willfully United States v. Ross, 190 F.3d 446, 448 (6th Cir. 1999). On participated in any of the Longs’ criminal activity. Counsel July 27, 1999, we affirmed Petitioner’s conviction. Id. With for Robert Long represented at a pretrial conference that he regard to his right to present a defense claim, we determined did not know whether his client would invoke his Fifth that Petitioner “was not denied his right to present a defense; Amendment privilege if called as a witness in a joint trial.2 rather, the jury did not believe him.” Id. at 453. Petitioner The district court denied the request for severance. petitioned for certiorari, which the Supreme Court denied on November 29, 1999. See United States v. Ross, 528 U.S. Beginning on March 6, 1997, the government jointly tried 1033 (1999). Petitioner along with several co-conspirators including Robert Long and Rodolfo Fernandez. Requests for severance were Petitioner filed his habeas petition on November 28, 2000. renewed throughout the trial and denied. The trial lasted nine Petitioner attached several exhibits, including an affidavit weeks and involved more than seventy witnesses. On April from Holbrook. Holbrook, who testified for the government 29, 1997, the jury convicted Petitioner, Robert Long, and at Petitioner’s trial, claimed that the U.S. Attorney’s Office Fernandez on all counts. Petitioner received a ten-year contacted him prior to trial and asked him to speak with sentence. In his appeal to this Court, Petitioner about a plea bargain. According to Holbrook, the Assistant U.S. Attorney, Robyn Jones Hahnert, “stated that [Petitioner] challenge[d] his convictions on the grounds there was no need for [Petitioner] to go to jail, and [sic] the that (1) he was precluded from fully presenting his possibility of avoiding him permanently losing his license.” defense because of the assertion of attorney-client (J.A. at 465.) Holbrook then relayed this information to privilege on behalf of his co-defendant Robert Long, and Petitioner and his counsel, Lew Williams. (2) the evidence was insufficient to show he knew of and joined the conspiracies. With respect to his sentence, According to Holbrook, the meeting revealed that Williams [Petitioner] claim[ed] the district court erred by did not understand the case or the sentencing guidelines and (1) denying him a reduction in his base offense level could not properly advise his client. Holbrook further either for acceptance of responsibility or for being a indicated that he told Petitioner that “he was in real minimal participant in the conspiracy; (2) granting an trouble. . . . [because] Lew had no idea about anything on enhancement for using a special skill in the commission [sic] the case and that he needed to be educated real fast or concealment of the offense; (3) finding he was because it was too late to get another lawyer.” (J.A. at 466.) responsible for laundering funds in excess of $100,000; Holbrook also claimed that Hahnert told him that Williams and (4) denying him a downward departure because of never contacted her about a possible plea. Finally, Holbrook factors not adequately taken into account by the expressed concern over the unprofessional manner in which guidelines. Williams cross-examined him at Petitioner’s trial. Holbrook’s affidavit noted that “[i]n a casual meeting in the coffee shop later that day, I was privy to a comment made to me by an attorney for one of the co-defendants about Lew’s performance. He questioned his preparation . . . . I was 2 already disgusted with Lew and did not say anything.” (Id.) During the defense case, Petitioner announced at sidebar that he intended to call Robert Long as a witness. At that time, Robert Long asserted his Fifth Ame ndm ent privilege and refused to testify. No. 01-4129 Ross v. United States 9 10 Ross v. United States No. 01-4129

Petitioner also attached his own affidavit to his habeas role this would have placed [Petitioner] in the area of petition.3 Petitioner claims that he asked Williams investigate potential probation or half way house. Both attorneys the plea offer but that Williams did not do so until the day of present were aware of the guideline ramifications of the trial, at which point the government no longer expressed plea offer meant [sic]. There was not a recommendation interest. Petitioner claimed that he would have pleaded guilty [sic] offer but the comment that [Petitioner] did not had he received a plea offer that did not involve incarceration. necessarily need to go to jail. The government responded with an affidavit from Hahnert. (J.A. at 427.) Holbrook also clarified that “Robyn did not say Hahnert acknowledged that during a pretrial meeting with that she would recommend anything about the license” and Holbrook, Holbrook expressed concern that his friend, that he (Holbrook) “was not acting as an agent for the Petitioner, did not fully grasp the severity of his situation. Government” when he relayed information to Petitioner. (Id.) Hahnert advised Holbrook that she offered Petitioner a plea bargain that would require he plead to a money laundering On July 3, 2001, the magistrate judge issued a Report and charge. If Petitioner cooperated, the government would Recommendation recommending that the district court deny include a provision for a downward departure pursuant to the § 2255 petition. Petitioner filed objections to that Report U.S.S.G. § 5K1.1. Hahnert also averred that the plea offer on July 13, 2001. On September 24, 2001, without an never included a recommendation of probation, nor did she evidentiary hearing, the district court adopted the Report and ever indicate that Petitioner might not lose his license to Recommendation. practice law. Rather, Hahnert stated that the district court had discretion to place Petitioner on probation if the On October 3, 2001, Petitioner filed a timely notice of government made a § 5K1.1 motion, and Petitioner had a appeal. The district court granted Petitioner a certificate of better chance to regain his license in the future if he pleaded appealability on November 29, 2001. guilty to a money laundering charge instead of a cocaine distribution charge. Finally, Hahnert denied asking Holbrook DISCUSSION to take the plea offer to Petitioner on behalf of the U.S. Attorney’s Office. Initially, Petitioner argues that he received ineffective assistance of counsel because his attorney failed to inform Petitioner attached a second affidavit from Holbrook to the him of a plea offer that he would have accepted. The district reply brief he filed with the district court. Holbrook claimed: court rejected this contention on the briefs, and Petitioner asserts he should have at least received an evidentiary Robyn [Hahnert] did not say that she would recommend hearing. Petitioner also raises a litany of other less substantial neither [sic] probation nor keeping his license to practice ineffective assistance arguments.4 law. She did discuss that a plea to laundering, a Base Level 17 offense, would receive a 5K motion. With acceptance [of responsibility] and potential for a minor 4 In his brief, Petitioner argues he received an unconstitutional 3 sentence in violation of Apprendi v. New Jersey, 530 U.S. 466 (2000). Petitioner did not sign or notorize the copy he served on the United Petitioner’s counsel conceded Apprendi’s inapp licability at oral argument, States. thus we need not address Petitioner’s Apprendi claim in this opinion. No. 01-4129 Ross v. United States 11 12 Ross v. United States No. 01-4129

I. The government attached Hahnert’s affidavit to its reply opposing the § 2255 petition. Hahnert averred that she never We begin with Petitioner’s claim that he should have at made a plea offer to Holbrook that would guarantee or even least received an evidentiary hearing before the district court recommend probation. Hahnert acknowledged possibly rejected his argument that his counsel’s alleged failure to allowing Petitioner to plead to money laundering charges and relay a plea offer constituted ineffective assistance. This receive a § 5K1.1 motion for substantial assistance. This Court reviews a district court’s decision to deny a § 2255 would permit Petitioner to argue to the sentencing court that ineffective assistance of counsel claim without an evidentiary he should receive probation. Again, Hanhert never offered to hearing for abuse of discretion. Blanton v. United States, 94 recommend probation or to help Petitioner retain his license. F.3d 227, 235 n.2 (6th Cir. 1996); see also Etheridge v. United States, 241 F.3d 619, 622 (8th Cir. 2001); Prewitt v. In Petitioner’s reply brief, Petitioner submitted a second United States, 83 F.3d 812, 820 (7th Cir.1996). affidavit from Holbrook that clarified his earlier testimony. Holbrook concurs that “Robyn [Hahnert] did not say that she The district court should always consider the importance of would recommend []either probation nor keeping his license a hearing in light of what the proper resolution of a particular to practice law.” (J.A. at 427.) Rather, Holbrook concedes case requires. United States v. Todara, 982 F.2d 1025, 1030 that he assumed a plea to money laundering and a § 5K1.1 (6th Cir. 1993). If the record includes a factual dispute, the motion would reduce Petitioner’s base offense level to the district court “must hold a hearing to determine the truth of point where he could, theoretically, avoid prison. Thus, the [petitioner’s] claims.” Turner v. United States, 183 F.3d Holbrook does not claim Hahnert ever offered probation or to 474, 477 (6th Cir. 1999). Petitioner is not entitled to a help Petitioner keep his license. hearing, however, “if the files and records of the case conclusively show that he is not entitled to relief.” Green v. Since Holbrook’s supplementary affidavit is entirely United States, 65 F.3d 546, 548 (6th Cir. 1995). consistent with Hahnert’s affidavit, there is no factual dispute, rendering a hearing unnecessary.5 See Green, 65 F.3d at 548. Petitioner’s primary ineffective assistance of counsel claim Thus, the district court did not abuse its discretion by is that his attorney failed to act on a plea offer made by the declining to hold an evidentiary hearing concerning U.S. Attorney’s Office prior to trial. In support of his Petitioner’s ineffective assistance of counsel claims. argument, Petitioner cites the Holbrook affidavit, in which Holbrook swears, according to Petitioner, “that the AUSA had contacted him prior to trial, and indicated that she would offer the Appellant a plea whereby he could possibly retain his license.” (Pet’r Br. at 8.) Holbrook then relayed his communications to Petitioner and his counsel. Since the U.S. Attorney’s office denies having made an offer that would not 5 Petitioner also purpo rts to deserve an evid entiary he aring o n his involve jail time and possibly allow Petitioner to retain his other ineffective assistance claims, discussed b elow. This argument is license, Petitioner argues a factual dispute exists that warrants without merit because Petitioner fails to identify any evidence that he an evidentiary hearing. could have prese nted in an evide ntiary hearing that the district court did not consider before denying his petition. Petitioner bases all of his other ineffective assistance claims o n the rec ord to which the district court had access. No. 01-4129 Ross v. United States 13 14 Ross v. United States No. 01-4129

II. action might be considered sound trial strategy.” Id. at 689; see also Martin v. Rose, 744 F.2d 1245, 1249 (6th Cir. 1984). Like others in his position, this Petitioner adopts the “kitchen sink” approach to habeas by alleging that virtually To establish prejudice, Petitioner must show a reasonable every aspect of his trial counsel’s representation was probability that, but for his attorney’s errors, the proceedings improper and prejudicial. would have produced a different result. Strickland, 466 U.S. at 694. When applying Strickland, if we can more easily Petitioner’s other ineffective assistance of counsel claims dispose of an ineffective assistance claim based on lack of present mixed questions of law and fact that we review de prejudice, we should follow that route. Watson v. Marshall, novo. United States v. Jackson, 181 F.3d 740, 744 (6th Cir. 784 F.2d 722, 726 (6th Cir. 1985). 1999); Lucas v. O'Dea, 179 F.3d 412, 416 (6th Cir. 1999). In Strickland v. Washington, 466 U.S. 668 (1984), the Supreme Generalizing somewhat, we can say that Petitioner makes Court articulated a two-part test for determining whether an three basic arguments: (1) counsel failed to negotiate a plea; attorney rendered ineffective assistance. Id. at 689. As the (2) counsel did not timely move for a motion to sever; and Court explained, (3) counsel failed to investigate Petitioner’s case and prepare for trial. Before analyzing in detail whether Petitioner has First, the defendant must show that counsel’s established prejudice with respect to any of these three issues, performance was deficient. This requires showing that we note that Petitioner, who admits to drug use, failed to counsel made errors so serious that counsel was not appear for trial twice because he “overslept.” On the stand, functioning as the ‘counsel’ guaranteed the defendant by Petitioner acknowledged handling the Longs’ financial the Sixth Amendment. Second, the defendant must show transactions and conceded that “it wouldn’t take a rocket that the deficient performance prejudiced the defense. scientist to know that they are somehow involved in [the drug This requires showing that counsel’s errors were so trade].” (J.A. at 965.) These considerations along with the serious as to deprive the defendant of a fair trial, a trial strength of the case against Petitioner make it likely that the whose result is reliable. jury would have found him guilty even assuming Petitioner’s counsel could have done a better job. Id. at 687. A. With respect to the deficient performance component of the two-part test, the Strickland Court noted that judicial review As discussed already, Petitioner claims he received of a lawyer’s performance should be “highly deferential.” Id. ineffective assistance because his counsel failed to negotiate at 689. According to Strickland, “[t]he proper measure of a plea that would have resulted in a sentence of probation attorney performance remains simply reasonableness under rather than incarceration. Petitioner would only accept an prevailing professional norms.” Id. at 688. As the Supreme offer that guaranteed probation—after all, Holbrook informed Court explained, “[b]ecause of the difficulties inherent in Petitioner personally that the government might consider an making the evaluation, a court must indulge a strong offer that would leave open a distant possibility of probation presumption that counsel’s conduct falls within the wide and neither Petitioner nor his counsel pursued that range of reasonable professional assistance; that is, the presumption that, under the circumstances, the challenged No. 01-4129 Ross v. United States 15 16 Ross v. United States No. 01-4129

opportunity.6 Petitioner’s counsel was not ineffective for would have testified that Petitioner had no knowledge of failing to react to a no-jailtime offer that the government Robert Long’s drug conspiracy. The court consulted with never made, and Petitioner offers no evidence that his counsel Robert Long’s counsel to determine whether Robert Long (or anyone else) could have negotiated a plea that would have would testify in Petitioner’s defense. Robert Long’s counsel guaranteed no incarceration. This is particularly evident represented that he did not know whether his client would given Petitioner’s significant role in the drug conspiracy. assert his Fifth Amendment privilege if called as a witness in a joint trial. Subsequently, during trial, Robert Long asserted B. his Fifth Amendment privilege when Williams called him as a witness. Thus, no matter what Robert Long would have Petitioner also argues that his attorney did not provide said, Petitioner was not prejudiced unless Petitioner can show effective assistance because he did not timely move for a that Robert Long would have testified on his behalf had the separate trial or provide the district court sufficient evidence trial court granted the motion to sever.7 With his habeas to order a separate trial. Neither party disputes that Mark petition, Petitioner provided the court with an unsworn Williams, Petitioner’s counsel, filed a motion requesting a question and answer statement in which (now four years later) separate trial on March 5, 1997, the day before the trial began. Robert Long answers “yes” to the question: “Prior to your The untimeliness of the motion did not prejudice Petitioner joint trial with [Petitioner], had you obtained separate trials, because the district court did not deny it as untimely filed. would have you have testified on [Petitioner’s] behalf?” (J.A. Rather, the district court held a conference with counsel about at 469.) This statement is not adequate to demonstrate either the motion, then entered an order denying it on March 10, that Robert Long would have testified in a separate trial if the 1997, because Petitioner had not demonstrated that a joint government tried Petitioner first or that if the trial court knew trial would prejudice him. Robert Long would testify in separate trial, it would have granted Petitioner’s motion to sever. Petitioner argues that Williams did not adequately support the motion to sever because he failed to obtain an affidavit In general, “[t]here is a preference in the federal system for from his co-defendant, Robert Long, that would have joint trials of defendants who are indicted together.” Zafiro expressed Long’s willingness to testify on Petitioner’s behalf v. United States, 506 U.S. 534, 537 (1993). Defendants do in a severed trial. Specifically, Petitioner claims now (as he not have a right to separate trials “simply because they have did before the trial court) that a joint trial deprived him of the a better chance of acquittal if they [are] tried alone.” United right to call co-defendant Robert Long as a witness. States v. Brenig, 70 F.3d 850, 853 (6th Cir. 1995). Courts employ a stringent test to determine whether a defendant Along with his pretrial motion to sever, Petitioner’s counsel deserves a severance. The defendant “must demonstrate: (1) a attached an affidavit from Max Kravitz, who interviewed bona fide need for the testimony; (2) the substance of the Robert Long. Kravitz set forth what he believed Robert Long would say on Defendant’s behalf. Robert Long presumably 7 Put differently, Petitioner cannot show prejudice without demonstrating that the trial court would have granted the motion to sever, 6 and the trial court would not have granted the motion to sever unless, inter No tably, Holbrook emphasized in both affidavits that Petitioner did alia, Petitioner could show Robert Long w ould have a ctually testified in not understand the seve rity of his situation. That may explain Petitioner’s a separate trial. See, e.g., United States v. Butler, 611 F.2d 1066, 1071 position. (5th Cir. 1980). No. 01-4129 Ross v. United States 17 18 Ross v. United States No. 01-4129

testimony; (3) its exculpatory nature and effect, and (4) that was illusory because it was conditioned upon his being tried the co-defendant will in fact testify if the cases are severed.” before Spinola.”). United States v. Butler, 611 F.2d 1066, 1071 (5th Cir. 1980); see also United States v. Smith, 46 F.3d 1223, 1231 (1st Cir. C. 1995) (using the same four factors); United States v. Pepe, 747 F.2d 1632, 1651 (11th Cir. 1984) (using the same four Petitioner cites a litany of alleged trial errors including factors). (1) counsel’s failure to object to elements of Karen Long’s testimony; (2) counsel’s failure to meet with Petitioner during Petitioner fails this test for two reasons. First, Robert trial and his failure to adequately prepare for trial; Long’s testimony would not be exculpatory. According to the (3) counsel’s failure to cross-examine Donald Ross, and question and answer sheet: (4) counsel’s failure to object to the introduction of irrelevant or erroneous evidence. None of these allegations helps QUESTION: Assuming, without admitting, that you Petitioner demonstrate prejudice. were involved in illegal activities in Florida, was [Petitioner] aware of those First, Petitioner argues that counsel should have objected to activities prior to August, 1995? Karen Long’s testimony about Petitioner’s knowledge of the Longs’ cocaine business. Karen Long testified that Petitioner ANSWER: To my knowledge [Petitioner] was not knew about the Longs’ drug enterprise, but she never aware of anything prior to 1995. explained when he learned of their involvement. Petitioner’s counsel did not object to her vague response or attempt to (J.A. at 469.) Yet the conspiracies for which the jury clarify the issue during cross-examination. Regardless, her convicted Petitioner extended well beyond 1995 and, in fact, statements to government investigators indicate Karen Long beyond Petitioner’s indictment in 1996. would have testified that Petitioner knew the Longs distributed cocaine before their arrest in August of 1995. Second, Petitioner failed to prove that Robert Long would have testified had the court granted a severance. At the time, Second, in his brief, Petitioner asserts that “[c]ounsel was Robert Long faced a litany of serious drug and conspiracy also ineffective for failing to adequately meet with the charges, and prosecutors could have used his testimony [Petitioner] during trial. During the three weeks [sic] long against him if the government went to trial against Petitioner trial, counsel met with [Petitioner] only three times.” (Pet’r first. Robert Long’s question and answer statement never Br. at 19.) Petitioner offers no citation to the record to asserts that he would have testified on Petitioner’s behalf support his conclusion. An allegation entirely unsupported by regardless of the order in which their trials occurred. Since the record cannot meet the prejudice component of the Petitioner has not proven otherwise, one can assume Robert Strickland inquiry. Long would not have waived his Fifth Amendment privilege at his peril. We have already held that a co-conspirator’s Petitioner also claims that Williams failed to adequately promise to testify only if he receives his trial first is not a prepare for trial. In particular, Petitioner alleges that basis for a severance. See United States v. Blanco, 844 F.2d Williams failed to review sixteen boxes of discovery. Again, 344, 352-53 (6th Cir. 1988) (“Here, although Fresneda however, nothing in the record corroborates this allegation. purported to waive his Fifth Amendment privilege, the waiver Holbrook did state that counsel appeared unprepared for trial, No. 01-4129 Ross v. United States 19 20 Ross v. United States No. 01-4129

but Holbrook (a witness) did not attend the trial. Holbrook objected to the introduction of phone records and pen register disagreed with how Williams examined him on the stand, but information revealing telephone calls to and from Petitioner, as the witness, Holbrook may not have the best perspective on but Williams had already unsuccessfully objected to that how counsel should have questioned him. Finally, Holbrook material earlier. His failure to make a further objection that heard a derogatory comment about Williams’ performance the court would have overruled did not prejudice Petitioner. from an unidentified person in a restaurant. Like the other unsubstantiated allegations, this gossip does not help Petitioner grumbles about counsel’s failure to object to Petitioner meet his burden. questions prosecutors asked a government agent about a land contract and related monies that Petitioner failed to disclose Third, on direct examination, Donald Ross testified that his to the grand jury. The government introduced evidence of a wife did not accompany him when he delivered two ounces land contract between the Longs and Loretta and Eugene of cocaine to Petitioner in his office. This contradicted the Newsome that Petitioner prepared but never filed. Petitioner testimony of Marilyn Ross, who claimed that she was present denies preparing the land contract, although that does not and heard Petitioner claim he would sell the cocaine. Also on preclude prosecutors from asking questions about the direct examination, Donald Ross described the Faber property document. Similarly, the government introduced evidence transaction differently than Karen Long did. that Petitioner failed to provide the grand jury information concerning $60,000 he received from the Longs for land Petitioner now claims that if counsel had cross-examined transaction work that helped hide the Longs’ income. Donald Ross, “he could have gotten out before the jury that Petitioner complains about counsel’s failure to object to the [Petitioner] never stated he was going to sell the two questions about this money, but since the money was very ounces of cocaine delivered to him, contradicting Marilyn relevant to the government’s case, it seems probable that the Ross’ story.” (Pet’r Br. at 19.) Petitioner also claims that court would have overruled any objection. “Don Ross could have refuted Karen Long’s claim that she was present with Don, Robert Long, and the [Petitioner] Since Petitioner has not established prejudice, we need not during discussions of the Faber Avenue sale.” (Pet’r Br. at consider whether counsel’s performance was constitutionally 19-20.) inadequate. See Watson, 784 F.2d at 726. Petitioner argues that “counsel simply failed to bring [this] For all the aforementioned reasons, we AFFIRM the evidence before the jury,” even though the government district court. brought the same evidence before the jury during the direct examination. (Pet’r Br. at 20.) When the jury hears on direct examination the evidence a petitioner feels counsel should have developed in cross-examination, the petitioner did not suffer prejudice. Dorsey v. Parke, 872 F.2d 163, 166 (6th Cir. 1989); Steven v. Bordenkircher, 746 F.2d 342, 347 (6th Cir. 1984). Finally, Petitioner complains of various other alleged trial errors. According to Petitioner, Williams should have