United States v. Demeree , 108 F. App'x 602 ( 2004 )

F I L E D
United States Court of Appeals
Tenth Circuit
UNITED STATES COURT OF APPEALS
SEP 1 2004
TENTH CIRCUIT
PATRICK FISHER
Clerk
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v. No. 02-5170
(N.D. Oklahoma)
LISA DENNY DEMEREE, (D.Ct. Nos. 00-CV-335-H and
96-CR-151-H)
Defendant - Appellant.
ORDER AND JUDGMENT *
Before MURPHY, BALDOCK, and O’BRIEN, Circuit Judges.
After examining the briefs and appellate record, this panel has determined
unanimously that oral argument would not materially assist the determination of
this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1.9(G). The case is
therefore ordered submitted without oral argument.
Lisa Demeree appeals the district court’s order denying her motion to
vacate, set aside or correct her sentence filed pursuant to 28 U.S.C. § 2255. The
*
This order and judgment is not binding precedent except under the doctrines of
law of the case, res judicata and collateral estoppel. The court generally disfavors the
citation of orders and judgments; nevertheless, an order and judgment may be cited under
the terms and conditions of 10th Cir. R. 36.3.
district court denied her request for a certificate of appealability (COA), but we
granted one on the single issue of whether the lack of a jury instruction requiring
unanimous jury consent violated Richardson v. United States, 526 U.S. 813(1999) and whether counsel’s failure to request such an instruction constituted ineffective
assistance of counsel. Exercising jurisdiction under 28 U.S.C. § 2253(a),(c)(1)(b) we
affirm.
BACKGROUND
On June 4, 1997, a jury convicted Demeree of engaging in a continuing criminal
enterprise (CCE) in violation of 21 U.S.C. §§ 841(a)(1), 846, 848(a),©) and (d) and 856
(Count 1). She was also convicted of: 1) conspiracy to possess with intent to distribute,
conspiracy to distribute and conspiracy to transport a controlled substance
(methamphetamine) in violation of 21 U.S.C. §§ 841, 846 and 856 (Count 2) and 2)
aiding and abetting possession of methamphetamine with intent to distribute in violation
of 21 U.S.C. §§ 841(a), (1)(b)(1)(A) and 18 U.S.C. § 2 (Count 3).
Demeree received concurrent life sentences on Counts 1 and 3. Count 2
(conspiracy) was vacated at the government’s request in accordance with United States v.
Stallings, 810 F.2d 973 (10th Cir. 1987) (vacating drug conspiracy conviction because
lesser-included offense of a continuing criminal enterprise). On direct appeal, we
affirmed her conviction. United States v. Demeree, 172 F.3d 63, 1999 WL 92262 (10th
Cir. 1999) (table decision).
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Following Demeree’s conviction, the United States Supreme Court held that a jury
“must unanimously agree not only that the defendant committed some ‘continuing series
of violations’ but also that the defendant committed each of the individual ‘violations’
necessary to make up that ‘continuing series,’” in order to convict a defendant of
engaging in a CCE.” Richardson, 526 U.S. at 815. Richardson applies retroactively.
United States v. Barajas-Diaz, 313 F.3d 1242, 1245 (10th Cir. 2002).
After denial of her direct appeal, Demeree filed her § 2255 motion, alleging various
claims including an ineffective assistance of counsel claim based on her counsel’s failure to
request an instruction requiring jury unanimity as to the predicate violations undergirding
her CCE conviction. The district court held two hearings on the matter and concluded
Demeree’s counsel was ineffective, but no prejudice resulted. It issued a comprehensive
and cogent order addressing all of Demeree’s arguments.
DISCUSSION
We review de novo a district court’s ruling regarding claims of ineffective
assistance of counsel as a mixed question of law and fact. United States v. Salazar, 323
F.3d 852, 857 (10th Cir. 2003). In order to demonstrate ineffective assistance of counsel, a
petitioner must establish both that her counsel’s performance was deficient and she was
prejudiced as a result. See Strickland v. Washington, 466 U.S. 668, 687 (1984). Unless both
elements are satisfied, “it cannot be said that the conviction . . . resulted from a breakdown
in the adversary process that renders the result unreliable.” Id.-3-
The instructions given at Demeree’s trial did not meet Richardson’s unanimity
requirement.1 However, Richardson had not even been decided at the time of trial.
Nonetheless, she argues her counsel should have requested an instruction requiring
unanimity because at the time of trial another circuit had recognized that such an instruction
was necessary to appropriately establish a CCE conviction.
At the time of Demeree’s trial, we had not yet addressed the issue and our sister
circuits were divided.2 Significantly, nine years before Demeree’s trial, the Third Circuit
required jury unanimity for at least three predicate violations in order to establish a CCE
1
The CCE elements instruction provided:
The Government must prove the following five elements beyond a
reasonable doubt in order to sustain its burden of proof for the crime of
operating a continuing criminal enterprise:
One: that Defendants committed a felony violation of the federal narcotics
laws;
Two: that such violation was part of a continuing series of violations of
the federal narcotics laws;
Three: that the continuing series of violations was undertaken by
Defendants in association or concert with five or more persons;
Four: that Defendants were organizers of these five or more other persons,
or occupied management or supervisory positions with respect to these
five or more persons; and
Five: that Defendants obtained substantial income or resources from the
continuing series of narcotics violations.
2
Compare United States v. Edmonds, 80 F.3d 810, 822 (3d. Cir 1996) (en banc)
(jury must unanimously agree on which “violations” constitute the series); with United
States v. Hall, 93 F.3d 126, 129 (4th Cir. 1996) (unanimity with respect to particular
“violations” is not required), and United States v. Anderson, 39 F.3d 331, 350-351 (D.C.
Cir. 1994), and United States v. Richardson, 130 F.3d 765 (7th Cir. 1997) (same).
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conviction. United States v. Echeverri, 854 F.2d 638, 642-643 (3d Cir. 1988). We agree
with the district court that Demeree’s counsel was ineffective for failing to request a
unanimity instruction because of the circuit split and our silence. Although we do not
require clairvoyance, counsel is obligated to research relevant law to make an informed
decision whether certain avenues will prove fruitful.
Despite counsel’s ineffectiveness, Demeree must still show prejudice, to wit, “a
reasonable possibility that, absent the errors, the factfinder would have had a reasonable
doubt respecting guilt.” Strickland, 466 U.S. at 695. In making this determination, it is
necessary to consider the totality of the evidence before the jury, mindful that a verdict
“weakly supported by the record is more likely to have been affected by errors than one with
overwhelming record support.” Id. at 695-96.
There was no prejudice here. “Richardson does not require a conviction on all of the
violations that make up the series of violations. Instead, its holding merely requires the jury
to unanimously determine which violations make up the series.” United States v. Almaraz,
306 F.3d 1031, 1038 (10th Cir. 2002) (quotation omitted), cert. denied, 537 U.S. 1241(2003). Demeree’s convictions on Count 2 (conspiracy) and Count 3 (aiding and abetting
possession of a controlled substance) establish two of the three predicate violations required
to sustain her CCE conviction.3 Barajas-Diaz, 313 F.3d at 1246 n.5 (aiding and abetting
may be used to establish the necessary predicate violations for a CCE conviction); United
3
Demeree did not contest this in district court.
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States v. Hall, 843 F.2d 408, 411 (10th Cir. 1988) (use of the conspiracy violation itself may
be used to satisfy the series of violations requirement in a CCE count). As to the third, the
district court concluded that, given the evidence at trial, a reasonable jury would have
unanimously agreed that Demeree was guilty of one or more acts of possession with the
intent to distribute methamphetamine. We agree. The record contains overwhelming
evidence that Demeree possessed a sizable quantity of methamphetamine on at least one
occasion, which constitutes a predicate violation for a CCE conviction. Accordingly, the
result of the proceeding would not have been different had Demeree’s counsel requested an
instruction requiring jury unanimity.4 Because Demeree was not prejudiced by the
ineffectiveness of her counsel, we AFFIRM.
Entered by the Court:
Terrence L. O’Brien
United States Circuit Judge
4
Demeree also asks us to consider her claims in light of the Supreme Court’s
recent decision in Blakely v. Washington, 124 S.Ct. 2531 (2004) (requiring that facts used
to enhance a sentence be found beyond a reasonable doubt by a jury or admitted by the
defendant). Blakely is inapplicable here because the predicate violations required to
sustain Demeree’s CCE conviction were submitted to the jury and proven through actual
conviction and/or overwhelming evidence.
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