Filed: May 16, 2012
Latest Update: Mar. 26, 2017
Summary: 10-0243-cr (L) USA v. Campbell, Shaw UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT SUMMARY ORDER RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A SUMMARY ORDER FILED ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY FEDERAL RULE OF APPELLATE PROCEDURE 32.1 AND THIS COURT’S LOCAL RULE 32.1.1. WHEN CITING A SUMMARY ORDER IN A DOCUMENT FILED WITH THIS COURT, A PARTY MUST CITE EITHER THE FEDERAL APPENDIX OR AN ELECTRONIC DATABASE (WITH THE NOTATION “SUMMARY
Summary: 10-0243-cr (L) USA v. Campbell, Shaw UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT SUMMARY ORDER RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A SUMMARY ORDER FILED ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY FEDERAL RULE OF APPELLATE PROCEDURE 32.1 AND THIS COURT’S LOCAL RULE 32.1.1. WHEN CITING A SUMMARY ORDER IN A DOCUMENT FILED WITH THIS COURT, A PARTY MUST CITE EITHER THE FEDERAL APPENDIX OR AN ELECTRONIC DATABASE (WITH THE NOTATION “SUMMARY O..
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10-0243-cr (L)
USA v. Campbell, Shaw
UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT
SUMMARY ORDER
RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A SUMMARY ORDER FILED ON OR AFTER JANUARY 1,
2007, IS PERMITTED AND IS GOVERNED BY FEDERAL RULE OF APPELLATE PROCEDURE 32.1 AND THIS COURT’S LOCAL RULE 32.1.1.
WHEN CITING A SUMMARY ORDER IN A DOCUMENT FILED WITH THIS COURT, A PARTY MUST CITE EITHER THE FEDERAL APPENDIX OR AN
ELECTRONIC DATABASE (WITH THE NOTATION “SUMMARY ORDER”). A PARTY CITING A SUMMARY ORDER MUST SERVE A COPY OF IT ON
ANY PARTY NOT REPRESENTED BY COUNSEL.
1 At a stated term of the United States Court of Appeals
2 for the Second Circuit, held at the Daniel Patrick Moynihan
3 United States Courthouse, 500 Pearl Street, in the City of
4 New York, on the 16th day of May, two thousand twelve.
5
6 PRESENT: JOSEPH M. MCLAUGHLIN,
7 RICHARD C. WESLEY,
8 Circuit Judges,
9 J. GARVAN MURTHA,
10 District Judge.*
11
12
13 UNITED STATES OF AMERICA,
14
15 Appellee,
16
17 -v.- 10-0243-cr (Lead)
18 10-0246-cr (Con)
19
20 MARLON CAMPBELL, AKA ROOSTER, BRANDON SHAW
21
22 Defendants-Appellants.
23
24
25
*
Judge J. Garvan Murtha, of the United States District
Court for the District of Vermont, sitting by designation.
1 FOR APPELLANTS: GERALD J. DI CHIARA, Law Offices of
2 Gerald Di Chiara, New York, NY, for
3 Defendant-Appellant Brandon Shaw.
4
5 JANEANNE MURRAY, Murray Law LLC, New
6 York, NY, for Defendant-Appellant Marlon
7 Campbell.
8
9 FOR APPELLEE: LAURIE A. KORENBAUM, Assistant United
10 States Attorney (Jesse M. Furman,
11 Assistant United States Attorney, on the
12 brief), for Preet Bharara, United States
13 Attorney for the Southern District of New
14 York, New York, NY.
15
16 Appeal from the United States District Court for the
17 Southern District of New York (McMahon, J.)
18
19 UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED
20 AND DECREED that the judgment of the United States District
21 Court for the Southern District of New York be AFFIRMED.
22 Defendants-Appellants Marlon Campbell (“Campbell”) and
23 Brandon Shaw (“Shaw”) appeal from judgments of conviction
24 entered by the United States District Court for the Southern
25 District of New York (McMahon, J.), following a jury trial
26 in which defendants were found guilty of: (1) conspiracy to
27 possess with the intent to distribute a controlled substance
28 (1,000 kilograms or more of mixtures and substances
29 containing a detectable amount of marijuana) in violation of
30 21 U.S.C. §§ 841(b)(1)(a) and 846; (2) intentional murder of
31 Marcus Bogle while engaged in a drug conspiracy, and aiding
2
1 and abetting the same, in violation of 21 U.S.C. § 848(e)
2 and 18 U.S.C. § 2; (3) use, possession, and discharge of a
3 firearm in furtherance of Counts One and Two, and aiding and
4 abetting the same, in violation of 18 U.S.C. §
5 924(c)(1)(A)(iii); and (4) use, carrying, and possession of
6 a firearm used to cause Bogle's death, and aiding and
7 abetting the same, in violation of 18 U.S.C. § 924(j).
8 On appeal defendants argue that: (1) the district court
9 erred in admitting other-act evidence pursuant to Federal
10 Rule of Evidence 404(b); (2) the district court’s jury
11 instructions regarding drug quantity were improper; and (3)
12 that the Government’s rebuttal summation constituted
13 prosecutorial misconduct that deprived defendants of the
14 right to a fair trial. Additionally, Shaw raises an
15 ineffective assistance of counsel claim and Campbell argues
16 that he was denied his constitutional right to testify on
17 his own behalf.
18 We have reviewed defendants’ arguments that the court
19 erroneously admitted other-act evidence and failed to give
20 appropriate limiting instructions. We find these claims
21 without merit. The district court appropriately exercised
22 its discretion to admit evidence of defendants’ prior crimes
23 with Tajah, evidence of Campbell’s marijuana possession
3
1 after Bogle’s murder, and evidence that Shaw received
2 marijuana from Harrison before the Bogle murder pursuant to
3 our circuit’s inclusionary approach to Rule 404(b). See
4 United States v. LaFlam, 369 F.3d 153, 156 (2d Cir. 2004).
5 This evidence was properly admitted to “help explain how the
6 illegal relationship between participants in the crime
7 developed, . . . to explain the mutual trust that existed
8 between coconspirators,” United States v. Rosa,
11 F.3d 315,
9 334 (2d Cir. 1993), or because “it arose out of the same
10 transaction or series of transactions as the charged
11 offense, [was] inextricably intertwined with the evidence
12 regarding the charged offense, or [was] necessary to
13 complete the story of the crime on trial,” United States v.
14 Carboni,
204 F.3d 39, 44 (2d Cir. 2000). Furthermore, the
15 court’s limiting instructions with regard to this evidence
16 were appropriate and sufficient to cure any prejudice that
17 may have otherwise resulted from its admission. See LaFlam,
18 369 F.3d at 157.
19 The court’s instructions regarding drug quantity were
20 not plainly erroneous. When we review jury instructions we
21 must view “the instructions as a whole to see if the entire
22 charge delivered a correct interpretation of the law.”
23 United States v. Bala,
236 F.3d 87, 94-95 (2d Cir. 2000)
4
1 (internal quotation marks omitted). Here, the court’s
2 instructions appropriately informed the jury that drug
3 quantity was not an element of Count One, see 21 U.S.C.
4 §§ 841(a)(1), 846, and that the jury had to determine drug
5 quantity unanimously and beyond a reasonable doubt for
6 purposes of the special interrogatory, see United States v.
7 Gonzalez, 420 F.3d 111, 125 (2d Cir. 2005). The court also
8 properly instructed the jury that it had to find drug-
9 quantity scienter unanimously and beyond a reasonable doubt.
10 See United States v. Martinez,
987 F.2d 920, 926 (2d Cir.
11 1993). The jury instructions were clear and correct.
12 Defendants also argue that the prosecutor engaged in
13 egregious misconduct during rebuttal summation by
14 denigrating the defense team, shifting the burden of proof,
15 referring to facts not in evidence, and vouching for the
16 government’s witnesses. None of the alleged conduct to
17 which defendants point was “so severe and significant as to
18 result in the denial of [the defendant’s] right to a fair
19 trial,” United States v. Locascio,
6 F.3d 924, 945 (2d Cir.
20 1993), especially in light of the court’s effective curative
21 instruction and its general instruction that counsel’s
22 arguments were not evidence, United States v. Newton, 369
23 F.3d 659, 681 (2d Cir. 2004).
5
1 The record also fails to support Shaw’s position that
2 his counsel’s performance fell below an “objective standard
3 of reasonableness” under “prevailing professional norms.”
4 See Strickland v. Washington, 466 U.S. 668, 687-88 (1984).
5 Although we generally resolve ineffective assistance claims
6 on habeas review, Shaw has new counsel on appeal and the
7 record is sufficient for us to decide his ineffectiveness
8 claim now. See United States v. Yauri,
559 F.3d 130, 133
9 (2d Cir. 2009); United States v. Khedr,
343 F.3d 96, 99-100
10 (2d Cir. 2003).
11 Shaw presents four arguments in support of his
12 ineffective assistance claim. He argues that counsel was
13 ineffective because he: (1) failed to object to a
14 question/answer in Donna Deberry’s testimony; (2) failed to
15 read the government’s letter regarding a typographical error
16 in the transcript before relying on the transcript during
17 summation; (3) failed to investigate and present a defense
18 based on Shaw’s proffer statement; and (4) failed to move
19 for severance. None of these alleged errors by Shaw’s
20 counsel satisfy the requirements for an ineffective
21 assistance of counsel claim.
22 Shaw’s first contention, that counsel was ineffective
23 because he failed to object to a set of questions and
6
1 answers in Donna Deberry’s direct, is wholly unpersuasive.
2 The questioning dealt with whether Bogle knew more than one
3 “Timmy” and both the questions and answers were clearly
4 based on Deberry’s personal knowledge. This line of
5 questioning was not, therefore, objectionable under Federal
6 Rule of Evidence 602 and counsel’s failure to object was not
7 objectively unreasonable.
8 Shaw’s second contention is that counsel provided
9 ineffective assistance of counsel when he relied on a
10 transcript containing a typographical error after receiving,
11 but not reviewing, the government’s letter pointing out and
12 correcting the error. As the district court noted, this
13 mistake was not entirely the fault of Shaw’s counsel.
14 Therefore, we doubt that this alleged error satisfies even
15 the first prong of Strickland. 466 U.S. at 687-88. But,
16 even if counsel’s performance was objectively unreasonable,
17 Shaw cannot satisfy the prejudice prong of Strickland
18 because the court gave an effective curative instruction and
19 allowed Shaw’s counsel to reopen his summation. During the
20 second summation, Shaw’s counsel was able to make much the
21 same argument he had before the error was realized. As a
22 result, Shaw suffered no prejudice from any error counsel
23 made in failing to recognize the typographical error before
24 summation.
7
1 Shaw also argues that counsel’s performance was
2 deficient and prejudicial because counsel failed to fully
3 investigate Shaw’s proffer statements before deciding not to
4 pursue a defense based on those statements. During a
5 proffer meeting with the Government—during which Shaw was
6 represented by an attorney other than the one representing
7 him at trial or on appeal—Shaw claimed that he shot
8 Campbell’s hand on purpose to prevent Campbell from shooting
9 Bogle. Essentially, Shaw claimed the he shot toward Bogle’s
10 car to save Bogle’s life rather than to kill him.
11 Shaw acknowledges that a strategic decision “made after
12 thorough investigation of law and facts relevant to
13 plausible options [is] virtually unchallengeable.”
14 Strickland, 466 U.S. at 690. But, he claims that his
15 counsel’s decision not to present this alternative defense
16 was the result of “ignorance, inattention or ineptitude”
17 because his counsel failed to call the lawyer who
18 represented Shaw during the proffer meeting and explore her
19 recollections and notes from the meeting. See Cox v.
20 Donnelly, 387 F.3d 193, 201 (2d Cir. 2004). This contention
21 is unpersuasive.
22 The record clearly demonstrates that Shaw’s counsel was
23 aware that Shaw wished to present this “I shot Campbell’s
8
1 hand to save, not kill Bogle” defense. But Shaw’s counsel
2 made a strategic, “virtually unchallengeable” decision not
3 to present it to avoid allowing the government to present
4 damning statements from Shaw’s proffer session, most of
5 which fully corroborated the government’s case. That the
6 decision was a well-considered strategic one is even more
7 evident from how fanciful this purported defense actually
8 is: Shaw wanted his counsel to argue that as the driver of
9 the car from which people were shooting, Shaw tried to save
10 Bogle’s life by shooting Campbell’s hand, when in fact, he
11 could more easily have done that by driving away. Not
12 presenting such a defense was neither objectively
13 unreasonable nor the result of “ignorance, inattention or
14 ineptitude.”
15 Finally, Shaw contends that his counsel provided
16 ineffective assistance of counsel by failing to move for
17 severance. Defendants have a difficult burden when arguing
18 that joinder would result in an unfair trial, United States
19 v. Casamento, 887 F.2d 1141, 1149-50 (2d Cir. 1989),
20 especially where, as here, “the crime charged involves a
21 common scheme or plan” among the defendants, United States
22 v. Girard,
601 F.2d 69, 72 (2d Cir. 1979). Shaw would not
23 have been able to meet this burden at trial and certainly
9
1 fails to meet it after a trial during which the court
2 repeatedly gave appropriate limiting instructions to
3 eliminate any spillover prejudice. See, e.g., United States
4 v. Williams, 936 F.2d 698, 700-01 (2d Cir. 1991). And
5 because Shaw’s proffer-statement-based defense was never
6 raised at trial, it does not qualify as a basis for
7 severance. Shaw’s counsel’s decision not to seek severance
8 was not, therefore, objectively unreasonable.
9 Indeed, the record as a whole more than supports the
10 district court’s conclusion that Shaw received “competent,
11 able and indisputably effective assistance of counsel”
12 throughout the trial.
13 Finally, we address Campbell’s contention that the
14 court improperly denied him the right to testify on his own
15 behalf. The right to testify is not without limitation and
16 the decision whether to reopen proceedings to allow such
17 testimony once the defense has rested is within the sound
18 discretion of the district court. See Rock v. Arkansas, 483
19 U.S. 44, 55-56 (1987); United States v. Matsushita,
794 F.2d
20 46, 51-52 (2d Cir. 1986). The district court did not abuse
21 that discretion in denying Campbell the opportunity to take
22 the stand when the request to do so occurred during the
23 government’s rebuttal summation. This case is entirely
10
1 unlike United States v. Walker, 772 F.2d 1172 (5th Cir.
2 1985), on which Campbell relies.
3 In Walker, the Fifth Circuit held that it was an abuse
4 of discretion for the district court not to reopen
5 proceedings to allow defendant to testify because the
6 defendant’s intention to take the stand was evident
7 throughout the trial. Defense counsel told the jury during
8 opening statements that defendant would testify and
9 defendant indicated, before the defense rested, that he
10 wanted to testify but was not yet emotionally prepared to do
11 so. Subsequently, and before summations began, the
12 defendant in Walker unambiguously requested that the court
13 reopen proceedings so that he could testify. Here, however,
14 unlike in Walker, neither Campbell nor his attorney ever
15 indicated that Campbell intended to or wanted to testify.
16 Indeed, the first time Campbell made any mention of wanting
17 to testify was during the government’s rebuttal summation
18 when the court had to dismiss the jury due to a disruptive
19 outburst by Campbell in open court. It is clear from the
20 record that Campbell had, throughout the trial, intended to
21 follow his counsel’s advice that he not take the stand.
22 Based on the timing and method of his supposed request to
23 testify, the court’s denial of any such request was not an
24 abuse of discretion. See Matsushita, 794 F.2d at 51-52.
11
1 For the foregoing reasons, the judgment of the district
2 court is hereby AFFIRMED.
3
4 FOR THE COURT:
5 Catherine O’Hagan Wolfe, Clerk
6
7
12
