Ross v. United States ( 2003 )

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
1
No. 01-4129 Ross v. United States 3 4 Ross v. United States No. 01-4129
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