RECOMMENDED FOR FULL-TEXT PUBLICATION Pursuant to Sixth Circuit Rule 206 2 United States v. Wright No. 01-2569 ELECTRONIC CITATION: 2003 FED App. 0327P (6th Cir.) File Name: 03a0327p.06 _________________ OPINION UNITED STATES COURT OF APPEALS _________________ FOR THE SIXTH CIRCUIT R. GUY COLE, JR., Circuit Judge. Defendant-Appellant _________________ Ward Wesley Wright appeals his jury conviction and sentence for the use of interstate commerce facilities in the commission UNITED STATES OF AMERICA , X of murder for hire, interstate travel in aid of a crime of Plaintiff-Appellee, - violence, and conspiracy to possess with intent to distribute - and to distribute cocaine. Wright raises four arguments on - No. 01-2569 appeal: (1) the district court erred in denying his motion to v. - dismiss his indictment based on violations of the statute of > limitations and the Due Process Clause of the Fifth , Amendment; (2) the Government is guilty of prosecutorial WARD WESLEY WRIGHT , - Defendant-Appellant. - misconduct; (3) the district court erred in denying his motion to suppress evidence obtained pursuant to a search warrant; N and (4) the district court erred in admitting hearsay evidence. Appeal from the United States District Court for the Eastern District of Michigan at Detroit. For reasons stated below, we AFFIRM the jury conviction No. 96-80876—Patrick J. Duggan, District Judge. and sentence entered by the district court.
Argued: August 5, 2003 I. BACKGROUND
Decided and Filed: September 12, 2003 A. Factual Background
Before: KEITH, COLE, and COOK, Circuit Judges. Brian Chase, Raymond Kelsey, and William Arbelaez met while serving time in a Minnesota prison. After all three had _________________ been released in 1992, Chase met Wright while they were both bouncers at a bar in Michigan. Wright was a member of COUNSEL the Avengers Motorcycle Club (the “Avengers”) and was involved with cocaine distribution through the club. ARGUED: Richard J. Amberg, Jr., Waterford, Michigan, for Arbelaez, a Colombian national who trafficked cocaine, Appellant. Joseph J. Allen, ASSISTANT UNITED STATES began supplying cocaine to Chase from Colombia, and Chase ATTORNEY, Detroit, Michigan, for Appellee. ON BRIEF: in turn began selling cocaine to Wright. Richard J. Amberg, Jr., Waterford, Michigan, for Appellant. Joseph J. Allen, ASSISTANT UNITED STATES In 1992, Arbelaez was arrested on drug charges in New ATTORNEY, Detroit, Michigan, for Appellee. Mexico. He escaped from prison and sought to flee to Colombia. Chase contacted Kelsey, a licensed pilot, and he
1 No. 01-2569 United States v. Wright 3 4 United States v. Wright No. 01-2569
agreed to fly Arbelaez out of the United States. Kelsey flew told Chase that Moore had given another Avenger a gun and Arbelaez to the United States-Mexico border, and Arbelaez $10,000 for a contract murder and that Chase was the target. fled to Colombia from there. Chase and Kelsey then decided to kill Moore to end the dispute and the perceived threat. In 1993, Arbelaez began supplying cocaine to Chase from Colombia and Kelsey became the pilot of the operation. In In July 1993, William Anderson Burke, a past national February, Kelsey flew to Los Angeles to retrieve a president of the Avengers, was involved in a motorcycle fifty-kilogram shipment of cocaine and then flew to Detroit to accident in Columbus, Ohio. Moore, as an officer in the deliver it to Chase. Chase sold part of the shipment to David Avengers, traveled to Columbus to await Burke’s release “Slap” Moore, a member of the Avengers, who would from the hospital. Chase and Wright decided that Wright eventually become Chase’s primary distributor. Chase sold could kill Moore while he was in Columbus, and Wright the other part of his shipment to Wright, who delivered part agreed to accept $50,000 to commit the murder. Wright’s of his allotment to Chase’s customers and sold part of his girlfriend, and later wife, Brenda Schneider, called Moore’s allotment to his own customers. wife to determine what hotel Moore was staying at in Columbus. Shortly afterward, Kelsey flew twenty-five kilograms of another shipment to Chase for distribution. Chase and Kelsey On July 29, 1993, Wright obtained a .22-caliber pistol and decided not to pay Arbelaez for the cocaine and told him that a car that had been purchased by Chase and Kelsey, and drove it had been seized by Canadian authorities. In the spring of to Columbus. Wright found Moore’s hotel room in the early 1993, Kelsey made another trip to Los Angeles and picked up hours of July 30, and asked Moore if he could stay the night. what was supposed to be seventy-five kilograms of cocaine. After Moore let him in and went back to sleep, Wright shot However, Chase and Kelsey learned that the shipment Moore in the head twice. Before leaving, Wright “wiped contained only sixty-six kilograms. Chase distributed the down” everything and took Moore’s wallet and pager. He drugs without notifying Arbelaez of the deficiency and called Chase, told him everything was okay, and returned to Wright received some of the shipment. Chase’s house in Michigan. At this point, Moore was no longer distributing cocaine for Kelsey, who was at the house when Wright returned, used Chase. Instead, Moore introduced Chase to his main a welding torch in Chase’s garage to melt the pager, the customer in Detroit, and Chase supplied cocaine directly to wallet, and the gun. Kelsey then piloted a plane, with Chase that customer. Moore wanted a commission from Chase for and Wright as passengers, and the three men dumped the the sales to his customer, but Chase refused. Moore told melted objects and Wright’s clothes over Lake Huron. Chase Chase that he “knew how to take care of business,” and Chase paid Wright $50,000 for the murder on the evening of believed that this was a threat and that Moore intended to kill July 30. him. Chase then discussed the “Moore problem” with Wright and told Wright that he was willing to give Moore $40,000 to On August 10, 1993, Wright married his girlfriend, Brenda end the dispute. Chase offered Wright $10,000 to broker the Schneider, in Las Vegas using the alias Arthur Anderson. deal with Moore, but Wright was unable to arrange a deal. Wright and his new wife stayed in Las Vegas gambling and Wright then suggested, “Why don’t you just give me the Larry Joe Powell, another Avenger, good friend of Wright, money and I’ll kill Mr. Moore.” A few days later, Wright and FBI informant, wired them money. No. 01-2569 United States v. Wright 5 6 United States v. Wright No. 01-2569
After the murder, Arbelaez, who was still living in In April 1996, while attempting to return from Colombia, Colombia, wanted Chase and Kelsey to pay him for the Kelsey was arrested in St. Martin and he agreed to cooperate twenty-five kilograms of cocaine “lost” to the Canadian with authorities. He then recorded several conversations with authorities and the nine kilograms of cocaine missing from Chase and Burke regarding drug shipments and Wright’s the seventy-five-kilogram shipment. Arbelaez devised a plan involvement in the drug deals. In October 1996, Chase and for Chase and Kelsey to repay him for the missing cocaine. Burke went to Detroit, believing that they were to meet He decided that they could steal airplanes and give them to Kelsey for a drug delivery. Instead they were arrested. Arbelaez’s cocaine supplier, the Medellin Cartel in Colombia Kelsey pleaded guilty to several charges across several states, (the “Cartel”). including drug trafficking, stealing planes, and aiding and abetting a murder for hire. He was sentenced to mulitple In January 1994, Kelsey flew Chase and Wright, traveling terms of imprisonment. In April 1997, government agents under the alias of Arthur Anderson, to the island of St. Martin obtained a warrant to search Wright’s Las Vegas apartment to meet with Arbelaez to discuss the plane-stealing scheme. where they recovered evidence linking Wright to the Moore When Arbelaez failed to show, the three flew back to the murder. United States. Chase and Kelsey then traveled to Venezuela and Colombia to meet with the Cartel regarding the types of B. Procedural Background airplanes that they wanted stolen. In the spring of 1994, Chase spoke with Kelsey, Wright and Burke and they decided Wright was originally charged in an indictment with: to steal planes together. Arbelaez also had his relative, Efrain (1) the use of interstate commerce facilities in the commission Ruiz, join the scheme. Kelsey scouted planes, and Wright of murder for hire, in violation of 18 U.S.C. § 1958; and Burke secured aviation fuel in a hangar for refueling the (2) conspiracy in the use of interstate commerce facilities in plane on the way to Colombia. On May 7, 1994, the five of the commission of murder for hire, in violation of 18 U.S.C. them successfully stole a United States Forest Service plane § 1958; (3) interstate travel in aid of a crime of violence, in in Atlanta. They flew the plane to Florida where Chase, violation of § 1952(a)(2); and (4) conspiracy to possess with Wright and Burke refueled the plane, which Kelsey then flew intent to distribute and to distribute cocaine, in violation of to the Cartel in Colombia. 18 U.S.C. §§ 846, 841(a)(1). However, the Grand Jury returned a First Superseding Indictment on April 22, 1997, On October 6, 1994, Kelsey stole another plane in only charging Wright, Chase and Burke with Count Four, Arkansas, refueled it in Florida, and flew it to Colombia. participation in the cocaine conspiracy. Wright did not participate in this theft. In November 1994, Kelsey picked up cocaine from Arbelaez, and flew it to Chase On September 9, 1997, the Government moved to dismiss and Burke in Michigan. However, Chase and Kelsey did not the indictment without prejudice as to Wright, arguing that pay Arbelaez the entire shipment, and were worried that the prosecution of Wright would jeopardize an ongoing Arbelaez would retaliate. They decided to steal another plane investigation of the Avengers. The motion was granted. On to make up for the missing payment. On February 18, 1996, July 23, 1998, the Government obtained a Third Superseding Kelsey stole a plane in Florida, and Wright and Burke set up Indictment against Wright, charging Wright with all four a refueling site. Kelsey and Chase then flew the plane to counts of the original criminal complaint. The Government Colombia for delivery to the Cartel. obtained an order sealing the indictment on the grounds that the ongoing investigation of the Avengers and the protection No. 01-2569 United States v. Wright 7 8 United States v. Wright No. 01-2569
of potential government witnesses and undercover agents II. ANALYSIS required that the indictment be sealed. A. Motion to Dismiss Chase pleaded guilty to conspiracy to possess with intent to distribute cocaine and the use of interstate commerce facilities Wright argues that the district court erred in denying his in the commission of murder for hire. Judgment was entered motion to dismiss the murder charges in the Third against him on October 7, 1998. Superseding Indictment. He argues that this indictment was improperly sealed and challenges the denial of the motion to In December 1998, Burke stood trial on the single count in dismiss based on the expiration of the statute of limitations the First Superseding Indictment, participation in the cocaine and violation of the Due Process Clause. conspiracy. He was convicted by a jury and his conviction was affirmed on appeal to this Court. United States v. Burke, Wright was indicted pursuant to the First Superseding No. 98-1800, 2001 WL 392039 (6th Cir. Apr. 9, 2001) Indictment on April 22, 1997. This indictment charged (unpublished). In January 2000, the Government revealed the Wright only with involvement in the cocaine conspiracy. identity of the informant being used in the investigation of the Upon motion by the Government and after a hearing, the Avengers, Powell, and on January 25, 2000, the Government indictment was dismissed without prejudice on September 8, obtained an order unsealing the Third Superseding 1997. In support of its motion to dismiss, the Government Indictment. On April 3, 2001, the district court held a hearing submitted affidavits from two FBI agents explaining that they on Wright’s motion to suppress evidence, and that motion were conducting an ongoing investigation of the Avengers was denied on April 4. On May 8, 2001, the district court and that their primary informant was Powell. The held a hearing on Wright’s motion to dismiss the indictment Government argued that proceeding against Wright at that based on violations of the statute of limitations, the Due time would require Powell to testify and thus jeopardize the Process Clause, and his right to a speedy trial. On May 9, safety of Powell and the investigation of the Avengers. 2001, the district court denied that motion. Wright did not object to the Government’s request, but asked for the dismissal to be with prejudice. On June 11, 2001, following eight days of testimony, the jury found Wright guilty of all three remaining counts of the On July 23, 1998, just prior to the running of the five-year Third Superseding Indictment.1 Both Chase and Kelsey statute of limitations on the murder for hire charges, see 18 testified against him. Wright was sentenced to two terms of U.S.C. § 3282,2 the Government obtained a Third life imprisonment and one term of sixty months of Superseding Indictment against Wright and moved to seal the imprisonment. indictment under Federal Rule of Criminal Procedure
2 Section 3282 read s in relevant part: “(a) In general.--Except as 1 otherwise expressly provided by law, no person shall be prosecuted, tried, By stipulation of the parties, Co unt T wo, co nspiracy to use interstate or punished for any offense, not capital, unless the indictment is found or commerce facilities in the commission of murder for hire, was dismissed the information is instituted within five years next after such o ffense sha ll prior to the conclusion o f Wright’s trial. have been com mitted.” No. 01-2569 United States v. Wright 9 10 United States v. Wright No. 01-2569
6(e)(4).3 In its motion to seal the indictment, the Government 1. Statute of limitations stated that the indictment should be sealed because “there is danger of harm to potential government witnesses, and The Third Superseding Indictment was unsealed and undercover agents, if the indictment is disclosed prior to the reopened on January 25, 2000, eighteen months after the completion of a related criminal investigation.” statute of limitations on Count One, the use of interstate commerce facilities in the commission of murder for hire, and The indictments from the Lorain County, Ohio Count Three, interstate travel in aid of a crime of violence, investigations of criminal activities among the Avengers were expired. This Court has addressed the legality of sealing unsealed in September 1999, and in January 2000, Powell’s indictments only in a brief, unpublished opinion. Burnett, identity as an informant was revealed. Wright’s indictment 1992 WL 92669, at *3 (“A sealed indictment that is not was unsealed immediately and he was notified of the charges opened until after the expiration of the statute of limitations against him. The Government states that the delay between will not bar prosecution unless the defendant can show actual the unsealing of the indictments in the Ohio cases and the prejudice.”) (citing United States v. Srulowitz, 819 F.2d 37, unsealing of Wright’s indictment resulted from the 40 (2d Cir.), cert. denied, 484 U.S. 853 (1987)). Our opinion completion of the arrests of several members of the Avengers in Burnett is consistent with other circuit courts that have in Ohio and Michigan, and the time it took to place Powell in considered the issue of sealing indictments in more detailed, the Witness Protection Program and to secure the safety of published opinions. Several courts have held that when a Powell’s family. sealed indictment is not opened until after the expiration of the statute of limitations, the statute ordinarily is not a bar to The decision of a magistrate judge to seal an indictment is prosecution if the indictment was timely filed. See Ramey, accorded “great deference.” United States v. Burnett, No. 91- 791 F.2d at 320; United States v. Muse, 633 F.2d 1041, 1041 1693, 1992 WL 92669 (6th Cir. Apr. 24, 1992) (per curiam) (2d Cir. 1980) (en banc), cert. denied, 450 U.S. 984 (1981). (unpublished) (citing United States v. Ramey, 791 F.2d 317, Other courts also have held that the filing of an indictment 321 (4th Cir. 1987)). We review a district court’s refusal to under seal will toll the statute of limitations if the indictment dismiss an indictment for an abuse of discretion. United was properly sealed. See Bracy, 67 F.3d at 1426; United States v. Middleton, 246 F.3d 825, 841 (6th Cir. 2001); see States v. Sharpe, 995 F.2d 49, 52 (5th Cir. 1993) (per curiam); United States v. Bracy, 67 F.3d 1421, 1425 (9th Cir. 1995) Srulowitz, 819 F.2d at 40. However, the Tenth Circuit holds (holding that a district court’s decision to dismiss an the minority position that the sealing of an indictment does indictment based on a claim of improper sealing is reviewed not toll the statute of limitations. See United States v. for abuse of discretion). The factual findings of the district Thompson, 287 F.3d 1244, 1251-52 (10th Cir. 2002) (refusing court are reviewed for clear error. United States v. Brown, to follow the other circuits and holding that the statute of 169 F.3d 344, 348 (6th Cir. 1999). limitations is not tolled while an indictment is under seal). We follow the rule in our decision in Burnett and the majority of our sister circuits in finding that a timely filed and properly sealed indictment tolls the statute of limitations. We therefore 3 must consider two factors when deciding if a sealed Federal Rule o f Criminal Pro cedure 6(e)(4) read s in releva nt part: indictment may be opened after the statute of limitation has “A magistrate jud ge to whom an indictment is returned may direct that the expired: (1) whether the indictment was properly sealed, and indictment be kept secret until the defendant is in custody or has been released pending trial.” (2) whether the defendant has shown actual prejudice from a No. 01-2569 United States v. Wright 11 12 United States v. Wright No. 01-2569
sealed indictment being opened beyond the statute of The district court conducted a hearing on Wright’s motion limitations.4 to dismiss and found that the indictment was sealed for a valid purpose and that the length of the sealing was We first must determine whether the indictment against reasonable: “The government’s reasons with respect to the Wright was properly sealed. The Government has the burden confidential informant as set forth today and as set forth in the of setting forth a justification for sealing the indictment. See government’s response, in this Court’s opinion, justified the Srulowitz, 819 F.2d at 41. We have not specifically answered 18-month delay between the date of sealing and the date of the question of what is a proper purpose for sealing an unsealing.” Wright argues that because Powell’s testimony indictment. However, other circuits have held that any was unnecessarily cumulative to the testimony of Chase and legitimate prosecutorial purpose or public interest may Kelsey, Powell’s protection was not a legitimate reason for support the sealing of an indictment. See United States v. sealing the indictment. DiSalvo, 34 F.3d 1204, 1218 (3d Cir. 1994) (an indictment may be sealed for any legitimate prosecutorial purpose or in We find that the district court did not abuse its discretion in the public interest); Sharpe, 995 F.2d at 52 (same); United holding that the indictment was properly sealed. The States v. Richard, 943 F.2d 115, 118-19 (1st Cir. 1991) protection of Powell and the need to avoid compromising an (same); United States v. Lakin, 875 F.2d 168, 170 (8th Cir. ongoing investigation falls within the range of permissible 1989) (same); Srulowitz, 819 F.2d at 40 (same); Ramey, 791 reasons for sealing an indictment. See, e.g., Bracy, 67 F.3d at F.2d at 321 (same). Accordingly, we look to the 1426 (finding that the need to protect the safety of potential Government’s request to seal the indictment and evaluate that witnesses justified the sealing of an indictment); DiSalvo, 34 request to determine whether any legitimate prosecutorial F.3d at 1219 (concluding that the sealing of an indictment to purpose or public interest supports the sealing of the avoid compromising an unrelated trial was a legitimate indictment. prosecutorial purpose). The Government’s investigations of the Avengers in Ohio, which involved Powell extensively, were extremely important and resulted in the indictment and conviction of nineteen individuals on various drug and racketeering charges. 4 W right asks us to consider the three-part inquiry set forth in United As discussed, an indictment may be sealed for a multitude States v. Thompson, 104 F. Supp . 2d 1303 , 1306-07 (D . Kan.), modified by, 125 F. Supp. 2d 1297 (D. Kan. 2000), aff’d by, 287 F.3d 124 4 (10th of reasons, including the protection of potential witnesses Cir. 2002), to determine whether a sealed indictment tolls the statute of involved in an unrelated investigation. At the time that the limitations. The test instructs courts to consider: (1) was the original indictment was sealed, the Government was conducting an decision to seal the indictment proper; (2) if properly sealed, was the investigation of the Avengers in Ohio and Michigan and length of time the indictment was sealed reasonable; and (3) was the Powell was an informant who was essential to the defendant prejudiced by the sealing of the indictm ent. W e dec line this invitation to adopt the test in Thompson because the facts of that case are investigation. As the Government noted at the hearing on the distinguishable. In Thompson, the court found that the government had motion to dismiss, it decided to dismiss the First Superseding not shown that the indictment was sealed for a legitimate prosecutorial Indictment in order to protect the identity of Powell while the purpose. Therefore, because we find the lengthy test in Thompson investigation continued. The prosecutor argued that this unnecessarily cumbersome, we find that the question in this case is better decision “was a collective decision up to the highest level of answered without the use of the test articulated by the district co urt in Thompson. my office, the U.S. Attorney’s office here, the U.S. Attorney’s No. 01-2569 United States v. Wright 13 14 United States v. Wright No. 01-2569
office in Cleveland, the Federal Bureau of Investigation at the discussing Wright’s Due Process claim and, accordingly, will highest levels in Detroit and Cleveland. . . .” The be discussed in the following section. Government concedes that it thought that the investigation of the Avengers would end in 1997, but that it in fact did not end 2. Due Process until late 1999. When the indictment was issued and sealed in 1998, the investigations were continuing and the A successful Due Process claim for pre-indictment delay Government wanted the identity of Powell, an important requires that a defendant establish: (1) prejudice to his right witness for the crimes allegedly committed by Wright, to to a fair trial, and (2) that the delay was intentionally caused remain concealed. by the government in order to gain a tactical advantage. United States v. Brown, 667 F.2d 566, 567 (6th Cir. 1982); The argument advanced by Wright misunderstands the law see also Doggett v. United States, 505 U.S. 647, 651-52 relating to the sealing of an indictment. Wright asks this (1992); United States v. Marion, 404 U.S. 307, 324-25 Court to examine Powell’s testimony ex post facto and (1971). The district court found that Wright failed to determine whether the evidence he provided justified the establish prejudice: sealing of the indictment in the first instance. This we decline to do. It is not our task to evaluate the testimony actually Furthermore, the Court is not satisfied that the defendant provided by Powell at Wright’s trial and then ascertain suffered substantial prejudice as a result of the delay. . . . whether it was significant enough to justify the sealing of the Defendant was aware as early as 1997 that the indictment. We look only to the evidence presented before government was, quote, accusing him, unquote, with the magistrate judge and the district court to determine if the conduct relating to charges contained in the third indictment was sealed for a legally valid purpose. Given this superseding indictment. . . . To the extent that the evidence, we find that the indictment was sealed for the defendant’s primary alibi witness is his wife, the Court is legitimate prosecutorial purpose of protecting the identity of not persuaded that her memory of relevant events has Powell, a Government informant who was involved in an been adversely affected by the passage of time. The unrelated investigation and provided substantial corroborating government alleges that, quote, her sworn [grand jury] evidence in Wright’s trial regarding the murder of Moore. testimony regarding his alleged alibi was preserved in April of 1997, unquote. Furthermore, courts have held that a defendant must show “substantial, irreparable and actual prejudice” when a Wright argues that he was prejudiced by the delay between properly sealed indictment is unsealed beyond the statute of the time of his initial arrest in April 1997 and the unsealing of limitations. Edwards, 777 F.2d at 648; see also United the indictment in January 2000 because: (1) his memory States v. Mitchell, 769 F.2d 1544, 1547 (11th Cir. 1985). regarding his alibi and the memories of other alibi witnesses This Court in Burnett stated, “A sealed indictment that is not had faded; (2) the Government used the delay against him in opened until after the expiration of the statute of limitations cross-examining his alibi witnesses, Scott and Charles will not bar prosecution unless the defendant can show actual Ferguson, about their alleged loss of memory; (3) certain prejudice.” 1992 WL 92669, at *3 (citing Srulowitz, 819 F.2d Avengers refused to testify as witnesses; (4) records, such as at 40). The Defendant has the burden of showing that telephone records, were no longer available; (5) his wife had prejudice occurred. Muse, 633 F.2d at 1043-44. The a child in the belief that he would not be prosecuted; and discussion regarding actual prejudice is also relevant in (6) his wife suffered emotional trauma. No. 01-2569 United States v. Wright 15 16 United States v. Wright No. 01-2569
Wright’s first claim that he was prejudiced because of Wright’s next claims of prejudice are related to the alleged witnesses’ loss of memory must fail as a matter of law. We effect of the delay on his family. First, Wright argues that he have held that loss of memory is an insufficient reason to had a child because he believed that he would not be establish prejudice. Payne v. Rees, 738 F.2d 118, 121-22 (6th prosecuted. There is absolutely no case law to support the Cir. 1984) (citations omitted). Moreover, as the district court argument that the birth of a child can be used to support a found, Wright can provide no evidence to support his claim of prejudice from a pre-indictment delay. Furthermore, argument that the witnesses’ memories had faded. His wife, his wife became pregnant before the First Superseding Brenda, testified both at trial and before the grand jury that Indictment was dismissed in 1997 and therefore, the delay she and Wright “partied” together at their home on the night had no bearing whatsoever on Wright’s family planning of Moore’s murder. It was not until trial that Brenda’s decisions. Next, Wright claims that the delay caused memory “faded” and she testified that she was “later emotional strain on his wife, who testified that she was taking informed” that Scott was partying with them on the night of antidepressants and other medications at the time of trial. the murder. Scott and Ferguson, Wright’s other alibi Again, Wright can cite to no case law that supports his witnesses, testified in detail regarding the night of Moore’s argument that emotional trauma to a witness establishes murder. Scott testified that she could not recall certain events prejudice. Furthermore, Wright cannot support his assertion only after she was confronted with the contradictory that his wife’s emotional trauma was a result of the delay, and testimony of Powell regarding Moore’s whereabouts on the not simply the result of the stress of the trial and a 1999 day after Moore’s death. Furthermore, the record does not automobile accident. support Wright’s assertion that the Government used Scott’s lack of memory to impeach her. The trial record also lacks Wright is unable to satisfy his “heavy burden to prove that evidence to support Wright’s argument that the Government pre-indictment delay caused actual prejudice.” United States attempted to impeach Ferguson by challenging his memory. v. Butz, 982 F.2d 1378, 1380 (9th Cir. 1993). Because Wright As with Scott, the Government properly questioned Ferguson is unable to establish prejudice, we need not consider the to ascertain whether he was remembering the night that second part of the Due Process inquiry, in which a defendant Moore was killed or a different night that he spent partying must establish that delay was intentionally caused in order to with Wright. gain a tactical advantage. Furthermore, Wright’s statute of limitations claim also must fail because he is unable to show Wright’s claims that witnesses refused to testify is without actual prejudice. Accordingly, the district court did not abuse merit. He has presented no evidence concerning who these its discretion in denying Wright’s motion to dismiss the witnesses are or how the delay in the indictment corresponds indictment based on violations of the statute of limitations to their inability to testify. Similarly, Wright has presented and the Due Process Clause. no evidence that various records became unavailable to him because of the delay. Indeed, he made no requests for any B. Prosecutorial Misconduct records during the trial. He only vaguely references “telephone records” in his brief on appeal, but presents Wright argues that the improper reference to a Government nothing to support his contention that either those records exhibit and statements made by the prosecutor during closing were not available or that the allegedly unattainable records arguments rose to the level of prosecutorial misconduct. were relevant to his defense. Where a defendant makes no objection to a prosecutor’s statements at trial, the standard of review is plain error. No. 01-2569 United States v. Wright 17 18 United States v. Wright No. 01-2569
United States v. Collins, 78 F.3d 1021, 1039 (6th Cir. 1996). return to Columbus, the city where Moore was murdered, a “To establish plain error, a defendant must show (1) that an few days after the murder. The Government stated that error occurred in the district court; (2) that the error was plain, “[w]hen Larry Joe Powell suggested [to Wright], ‘We better i.e., obvious or clear; (3) that the error affected defendant’s go down and find out what happened, that’s your job,’ substantial rights; and (4) that this adverse impact seriously basically. What does he (the Defendant) say? ‘No, I’m not affected the fairness, integrity or public reputation of the going to Columbus.’” Wright argues that this was a judicial proceedings.” United States v. Koeberlein, 161 F.3d mischaracterization of his alleged conversation with Powell 946, 949 (6th Cir. 1998) (citing Johnson v. United States, 520 because Powell testified that the conversation took place as U.S. 461, 466-67 (1997)). A defendant has the burden of follows: proving that the obvious deviation from a legal rule was so prejudicial as to affect the outcome of the district court Q. What was your discussion with [Wright]? proceedings. United States v. Olano, 507 U.S. 725, 732-34 A. I said something to the effect that maybe we should (1993). go down there. And - Q. Go where, to Columbus? 1. Admission of a Government exhibit A. Yeah. Q. For what purpose? Wright argues that the Government referenced documents A. Just for support. from the Internal Revenue Service in its closing argument that ... were not admitted into evidence. However, at trial, defense A. But [Wright] didn’t want to go down there and I counsel acknowledged to the jury that the documents marked figured, well, he had his reasons for not wanting to go Exhibit 56, had been admitted into evidence: “I didn’t have down there. on my exhibit list that I mark the exhibits that come in, Q. What did he say to you about why he didn’t want to Number 56, and so that’s why I spoke out of turn. go down? Apparently, it has been put in, and I just screwed up and A. Just no. He was firm on not wanting to go down there. missed it.” In his reply brief, Wright acknowledges that “[a] closer examination of the record, after review of the Because Wright’s counsel did not object to the Government’s Brief on Appeal, indicates that the exhibit was Government’s statements, we review only for plain error. ‘slipped in’ as Exhibit 56. . . .” Wright’s argument Given the testimony of Powell, the Government’s statements concerning the exhibits clearly has been conceded and there regarding that testimony were reasonable and there was no was no prosecutorial misconduct in this instance. obvious deviation from a legal rule. Accordingly, we do not find prosecutorial misconduct based on the Government’s 2. The Government’s closing argument characterization of Powell’s testimony. Wright also argues that the Government mischaracterized Next, Wright argues that the Government demeaned evidence and demeaned his counsel in its closing argument. defense counsel in his closing arguments by stating to the First, Wright claims that the Government mischaracterized jury: the testimony of Powell regarding a conversation between Powell and Wright. Presumably, Powell’s testimony was Mr. Amberg, I have a question for you. How can you be offered to show that Wright acted suspiciously by refusing to so far off? What you just listened to had nothing to do No. 01-2569 United States v. Wright 19 20 United States v. Wright No. 01-2569
with what went on in this case. Every representation he during the defense’s closing statements and the district court made virtually was based on the questions he asked, not agreed that defense counsel mischaracterized facts: from the answers that come from the stand. [Prosecutor]: Oh, objection, Your Honor. This is enough Wright argues that our holding in United States v. Carter, 236 of this. Counsel, 90 percent of what he’s talking about is F.3d 777 (6th Cir. 2001), controls, and the conduct of the not in evidence in this case. prosecutor in this case is similar to that in Carter. In Carter, THE COURT: Mr. Amberg, stay with the evidence that the prosecutor misstated the testimony of a key identification came in this case and the jury will be instructed to base witness and repeatedly insisted that defense counsel was lying their decision – about witnesses’ testimony. 236 F.3d at 784-85. We stated: ... “When reviewing challenges to a prosecutor’s remarks at only on the evidence that came into this case and you trial, we examine the prosecutor’s comments within the will be instructed that lawyer’s comments are not context of the trial to determine whether such comments evidence. amounted to prejudicial error.” Id. at 783. “[W]e conclude[d] that the prosecutor’s misstatement of the evidence in this case Accordingly, we find that the statements made by the . . . was not only error but also was plain error,” and “we also prosecutor during closing arguments do not constitute plain conclude[d] that the prosecutor’s claims that defense counsel error and we do not find prosecutorial misconduct. was lying were not only error but also were plain error.” Id. at 785. We ordered a new trial because we found that “the C. Motion to Suppress prosecutor’s actions affected [the Defendant’s] substantial rights and warrant reversal.” Id. at 785. No such Next, Wright argues that the district court erred in denying prosecutorial misconduct occurred during Wright’s trial. his motion to suppress evidence seized pursuant to a search warrant. Wright argues both that the executing agents The defense did not object to the Government’s rebuttal conducted a general search that resulted in the seizure of argument and the statements made by the Government do not items not listed on the warrant and that the warrant was based rise to the level of plain error. See United States v. August, on a stale affidavit. 984 F.2d 705, 714 (6th Cir. 1992) (per curiam) (finding that the defendant did not object and therefore waived any In reviewing a challenge to a motion to suppress, we review objection to the remarks on appeal unless the remarks factual findings for clear error and review legal constituted plain error or a defect affecting substantial rights). determinations de novo. United States v. Williams, 224 F.3d In closing arguments the Government criticized defense 530, 532 (6th Cir. 2000). counsel for making representations based on questions posed to witnesses rather than the answers that they provided. The 1. General search Government was attempting to show the jury that the statements made by defense counsel were not supported by Wright simply argues that he was the victim of a general actual testimony on the record and the Government’s method warrant because several pieces of evidence were seized from of making this point was proper. Indeed, the Government his residence that were not listed with particularity on the objected to defense counsel’s characterization of the facts search warrant. Though Wright does not list the “illegally” seized evidence, the Government concedes that “several No. 01-2569 United States v. Wright 21 22 United States v. Wright No. 01-2569
items” were seized that were not specifically listed on the contained the names and phone numbers of co-conspirators warrant cover sheet. The Government argues that the items including Chase and other Avengers; the newspaper article were seized because they were clearly contraband or direct about the murder of Moore showed that Wright had an evidence of the crime and subject to seizure under the “plain interest in the crime; the documents linked Wright to his alias view” doctrine. At the suppression hearing, the district court “Arthur Anderson”; and the letter from Chase described the found that agents “have a right to seize those things, number connection of Wright and Chase to the drug conspiracy. one, that are evidence of a crime that are in plain view. And Accordingly, the items were seized pursuant to a valid search secondly, in this situation, I believe had a right to seize items warrant and they related directly to the two crimes charged that related to the two crimes that were identified as the basis and the information provided by the attached affidavit. See for the search warrant.” United States v. Dale, 991 F.2d 819, 847 (D.C. Cir. 1993) (“[T]he common-sense reading of the warrant is that the It is well-settled that items to be seized pursuant to a search government could seize a variety of specifically identified warrant must be described with particularity to prevent “the documents and any other records that related to the [crimes seizure of one thing under a warrant describing another” in described in the] affidavit.”). We affirm the decision of the violation of the Fourth Amendment. Marron v. United States, district court denying Wright’s motion to suppress based on 275 U.S. 192, 196 (1927). However, in United States v. his allegation that agents conducted a general search. Brown, 49 F.3d 1162, 1169 (6th Cir. 1995), we held that “even evidence ‘not described in a search warrant may be 2. Staleness of affidavit seized if it is “reasonably related to the offense which formed the basis for the search warrant.”’” (quoting United States v. Wright also argues that because the search warrant was Fortenberry, 860 F.2d 628, 636 (5th Cir. 1988) (quoting based on information that was stale, the magistrate judge did United States v. Munroe, 421 F.2d 644, 646 (5th Cir.), cert. not have probable cause to issue the warrant. Wright argues denied, 400 U.S. 851 (1970))). that the information contained in the affidavit used to secure the warrant was three years old and that there was no probable The items seized in this case were sufficiently related to the cause to believe that Wright’s Las Vegas residence contained two crimes charged to fall within the scope of the search any items related to the crimes charged. A magistrate’s warrant. Wright does not point to any specific items in his finding of probable cause for the issuance of a warrant is brief on appeal; however, in his brief in support of his motion accorded “great deference.” United States v. Blair, 214 F.3d to suppress, Wright claimed that the agents executing the 690, 696 (6th Cir. 2000) (citations omitted). “[W]e must warrant illegally seized a leather vest in the Avenger’s colors, determine whether, in light of the totality of the a holster, a red address book, a brown address book, a circumstances, the magistrate had a ‘substantial basis’ for newspaper article, documents, and a letter. concluding that ‘a search would uncover evidence of wrongdoing.’” Id. (quoting United States v. Sonagere, 30 All the items seized were related to the crimes charged in F.3d 51, 53 (6th Cir. 1994)). “[T]he duty of a reviewing court the affidavit attached to the search warrant because they is simply to ensure that the magistrate had a substantial basis indicated Wright’s involvement in the drug conspiracy and for concluding that probable cause existed.” Illinois v. Gates, the murder of Moore. The vest was evidence of Wright’s 462 U.S. 213, 214 (1983). involvement with the Avengers motorcycle club; the holster indicated Wright’s possession of a gun; the address books No. 01-2569 United States v. Wright 23 24 United States v. Wright No. 01-2569
Moore was murdered in 1993 and the drug conspiracy took at the time of the murder and that Wright was presently using place between 1993 and 1996. In United States v. Henson, the alias in Las Vegas, Nevada, where he resided at the time we stated that “[t]he function of a staleness test in the search of the warrant. Regarding the medallion, the affidavit stated warrant context is not to create an arbitrary time limitation that Moore always wore a medallion with the Avengers’ logo within which discovered facts must be presented to a and that it had not been found at the murder scene. The magistrate.” 848 F.2d 1374, 1382 (6th Cir. 1988). Instead, affidavit stated that investigators believed that Wright may be we held that the question of staleness depends on the in possession of the medallion as a “trophy” for the murder. “inherent nature of the crime.” Id. In determining whether the information provided to establish probable cause is stale, As the district court noted, the information regarding the we have held that many questions must be considered medallion may have been stale because it was unlikely that including the nature of the crime and the nature of the items Wright would have possession of such an item three years to be seized. Id. (stating that courts should not determine after the crime. However, the other information contained in staleness “solely by counting the days on a calendar”). We the affidavit was sufficient to support a finding that Wright also have stated that “a court considers the following four was involved in a drug conspiracy and the murder of Moore. factors in determining whether a probable cause finding is Under the Helton factors, the probable cause determination stale: ‘the defendant’s course of conduct; the nature and was not stale because of Wright’s conduct, the continuing duration of the crime; the nature of the relevant evidence; and nature of the drug conspiracy, the nature of the evidence any corroboration of the older and more recent information.’” regarding the crimes charged, and the corroboration of older United States v. Helton, 314 F.3d 812, 822 (6th Cir. 2003) and more recent information about Wright’s crimes learned (citing United States v. Czuprynski, 46 F.3d 560, 567 (6th Cir. through the investigation of the Avengers. In light of the 1995) (en banc)). “great deference” we give to the magistrate judge’s decision, there is nothing in the affidavit that leads us to conclude that In reviewing the totality of the circumstances, we find that the magistrate judge did not have a substantial basis to issue probable cause existed for the magistrate judge to issue the the warrant. There was extensive evidence provided in the warrant. The affidavit provided by Agent Gary Boggs affidavit for the magistrate judge to conclude that a search of requested that agents be allowed to search Wright’s residence Wright’s house would lead to the seizure of evidence of for motel records/receipts, a medallion, a passport, and wrongdoing. Accordingly, although several years passed identification in the name of Arthur Anderson. The affidavit between the alleged crimes and the issuance of the warrant, stated that Boggs and other DEA and FBI agents had been the information contained in the affidavit was relevant and conducting an investigation of a drug distribution timely regarding the seizure of certain evidence from organization within the Avengers and that through this Wright’s residence. We therefore affirm the district court’s investigation, they had learned that Wright was involved in a denial of the motion to suppress. cocaine distribution conspiracy and a murder for hire. The affidavit described the nature of the drug operations with D. Admission of Evidence which Wright was involved. The affidavit stated that Wright and Moore were members of the Avengers, were involved in 1. Hearsay statements the same drug conspiracy, and that the murder of Moore was a part of a dispute within the drug conspiracy. The affidavit All evidentiary rulings, including hearsay, are reviewed for also stated that Wright was using the alias of Arthur Anderson abuse of discretion. Trepel v. Roadway Express, Inc., 194 No. 01-2569 United States v. Wright 25 26 United States v. Wright No. 01-2569
F.3d 708, 716 (6th Cir. 1999). Wright argues that the district and usually has no factual content. See Quartararo v. court erred in admitting a hearsay statement made by Leah Hanslmaier, 186 F.3d 91, 98 (2d Cir. 1999) (“‘An inquiry is Moore, the wife of Moore. The testimony was elicited to not an “assertion,” and accordingly is not and cannot be a show that Wright learned the whereabouts of Moore by hearsay statement.’United States v. Oguns, 921 F.2d 442, 449 having his girlfriend call Leah. Leah testified that she had a (2d Cir. 1990) (quoting Inc. Pub. Corp. v. Manhattan conversation with Brenda, then-girlfriend of the Defendant, Magazine, Inc., 616 F. Supp. 370, 388 (S.D.N.Y.1985), aff’d, on the day of Moore’s murder. She also testified that she 788 F.2d 3 (2d Cir. 1986))”); see also United States v. Lewis, heard Brenda relay the information regarding Moore’s 902 F.2d 1176, 1179 (5th Cir. 1990); United States v. Vest, whereabouts to Wright. Defense counsel objected, but the 842 F.2d 1319, 1330 (1st Cir. 1988). district court overruled the objection. Leah’s testimony was as follows: In this case, Brenda’s question to Leah can be summarized as “Where is your husband?” In making that statement, A. Brenda called me. Brenda is not asserting anything. She is only attempting to Q. Brenda who? extract information from Leah. This inquiry from Brenda is A. [Wright’s] girlfriend. not being used to prove the truth of the matter asserted and Q. Did you recognize her voice? therefore, as the Government argues, it is not hearsay. A. Yes. Accordingly, the district court did not abuse its discretion in Q. Was there anyone else in the area of the phone that allowing the testimony to be presented. you could hear? A. [Wright] was in the background. 2. Co-conspirators statements Q. What did Brenda say? Mr. Amberg: Hearsay. Objection. Wright argues that the district court erred in admitting tape [Prosecutor]: Your Honor, I believe again, the answer is recordings that Kelsey made with Chase and Burke while going to be a question. A question is not hearsay. Kelsey was cooperating with the Government. Wright argues that Exhibit 50(a), a recorded conversation between Kelsey THE COURT: Go ahead. and Chase on August 2, 1996, and Exhibit 52, a recorded THE WITNESS: She asked me where my husband was. conversation between Kelsey and Burke on September 18, 1996, were erroneously entered into evidence over the The Government argues that Leah’s testimony about Brenda’s defense’s objections. Wright makes three arguments question was not hearsay because “a question is by definition regarding the recordings: (1) that Kelsey was no longer a not hearsay.” conspirator when the recordings were made, (2) that Wright was not a member of the conspiracy, and (3) that the taped Under the Federal Rules of Evidence, hearsay is defined as conversations were not in furtherance of the conspiracy, but “a statement, other than one made by the declarant while rather just “idle chatter.” testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted.” 801(c). While this Court Federal Rule of Evidence 801(d)(2)(E) states that a has not specifically addressed the issue presented by Wright, statement is not hearsay if “The statement is offered against a question is typically not hearsay because it does not assert a party and is . . . (E) a statement by a coconspirator of a party the truth or falsity of a fact. A question merely seeks answers during the course and in furtherance of the conspiracy.” We No. 01-2569 United States v. Wright 27 28 United States v. Wright No. 01-2569
review factual determinations underlying statements of member of the conspiracy. There was extensive evidence co-conspirators admitted under Federal Rule of Evidence presented that Wright, Kelsey, Chase, Ruiz, and Burke were 801(d)(2)(E) for clear error. United States v. Gessa, 971 F.2d all involved in the cocaine conspiracy. Kelsey alone testified 1257, 1261 (6th Cir. 1992) (en banc). to Wright’s extensive involvement in the drug conspiracy, which included arranging storage facilities for the drugs and The district court admitted the recordings, stating: assisting in the stealing of airplanes to pay for shipments of cocaine. Wright was referenced in the conversations between The Court is satisfied . . . that there is sufficient evidence Kelsey and Chase and Wright’s role as a conspirator was to support a conspiracy, and the Court is satisfied that the shown by the Government by a preponderance of the statements as described by Mr. Allen in Exhibits 50(a) evidence. and 52, are in furtherance of the conspiracy and related to the conspiracy and related to Mr. Wright’s We also disagree with Wright’s argument that the involvement in the conspiracy, if of course, the jury conversations were just “idle chatter.” In their conversations, believes those facts. Kelsey and Chase discussed how Wright was demanding either money or cocaine for the theft of a plane. In the We have held that the Government may use the statements of conversation between Kelsey and Burke, they discussed co-conspirators gained from a cooperating conspirator under paying Wright for the theft of an airplane with 100 kilograms 801(d)(2)(E) if the Government shows by a preponderance of of cocaine from a transaction that they were considering. The the evidence “(1) that a conspiracy existed, (2) that the district court found these conversations were in furtherance of defendant against whom the hearsay is offered was a member the conspiracy as charged and not just “idle chatter.” This of the conspiracy and, (3) that the hearsay statement was finding of fact is not clearly erroneous given the evidence of made in the course and in furtherance of the conspiracy.” the conspiracy provided in this case. See Brown, 169 F.3d at Hamilton, 689 F.2d at 1268 (quoting United States v. Vinson, 348. Accordingly, we find that the district court did not abuse 606 F.2d 149, 152 (6th Cir. 1979), following United States v. its discretion in admitting the taped recordings. Enright, 579 F.2d 980 (6th Cir. 1978)). E. Supplemental Arguments Under Rule 801(d)(2)(E) and Hamilton, the statements of co-conspirators gained from a cooperating conspirator may be Wright has submitted a pro se supplemental brief to this used by the Government. Therefore, as a matter of law, Court. In his brief, Wright argues that the Government’s Kelsey’s statements may not be excluded solely because he application of Federal Rule of Criminal Procedure 6(e)(4), the was cooperating with the Government at the time that the tape rule authorizing sealing of the indictment, violates of the recordings were made. statute of limitations, the Due Process Clause, and the principles of separation of powers. Wright’s first two Wright also argues that the Government has not shown that arguments are merely reiterations of the arguments raised by he was a member of conspiracy or that the statements on the his attorney in his appellate brief and have already been recordings were made in furtherance of the conspiracy. See addressed. His last argument, that the sealing of the United States v. Hamilton, 689 F.2d 1262 (6th Cir. 1982). indictment by the magistrate judge violates separation of We disagree with Wright’s argument that the Government did powers, has never been presented previously to the district not show by a preponderance of the evidence that he was a court or this Court. No. 01-2569 United States v. Wright 29 30 United States v. Wright No. 01-2569
We do not review arguments that are raised for the first III. CONCLUSION time on appeal. See Mich. Bell Tel. Co. v. Strand, 305 F.3d 580, 590 (6th Cir. 2002). This Court subscribes to the theory For the foregoing reasons, we AFFIRM the jury conviction that “[i]n order to preserve the integrity of the appellate and sentence entered by the district court. structure, we should not be considered a ‘second shot’ forum, a forum where secondary, back-up theories may be minted for the first time.” Isaak v. Trumbull Sav. & Loan Co., 169 F.3d 390, 396 n.3 (6th Cir. 1999) (quoting Estate of Quirk v. Comm’r of Internal Revenue, 928 F.2d 751, 758 (6th Cir. 1991)). Accordingly, we decline to review Wright’s separation of powers argument. Wright also submitted a pro se “motion for sanctions pursuant to Federal Rules of Appellate Procedure 38 and 47(b)” on January 16, 2003. He argues that the Government made “multiple errors” and “false, misleading statements” in the proof brief it submitted to this Court. On January 29, 2003, the Government submitted its final brief to this Court accompanied by a letter explaining that it had corrected the two mistakes in its citations that Wright had noted in his January 16 motion. On June 1, 2003, Wright submitted a letter to this Court that was construed as a motion to issue sanctions. In that letter, Wright argued that the Government had made some corrections to citations in its brief, but that several other factual mistakes existed and that the Government’s brief is “riddled with errors.” He argues that the changes made were insufficient to correct all of the errors and therefore the Government should be sanctioned. Rule 38 is a rule to protect appellees from frivolous appeals. FED . R. APP . P. 38. Rule 47(b) states in relevant part: “No sanction . . . may be imposed for noncompliance with any requirement not in federal law, federal rules, or the local circuit.” FED . R. APP . P. 47(b). As a matter of law, both rules are wholly inapplicable to this case. Accordingly, Wright’s motions for sanctions are meritless and we deny both motions.