                               File Name: 14a0849n.06
                    NOT RECOMMENDED FOR FULL-TEXT PUBLICATION


                                             NO. 13-2220
                                                                                           FILED
                                                                                     Nov 12, 2014
                              UNITED STATES COURT OF APPEALS
                                                                                 DEBORAH S. HUNT, Clerk
                                   FOR THE SIXTH CIRCUIT


UNITED STATES OF AMERICA,                          )
                                                   )
                    Plaintiff-Appellee,            )    ON APPEAL FROM THE UNITED
                                                   )    STATES DISTRICT COURT
          v.                                       )    FOR THE WESTERN DISTRICT
                                                   )    OF MICHIGAN
LANCE DALE LAIRD,                                  )
                                                   )
                    Defendant-Appellant.           )


BEFORE: McKEAGUE and GRIFFIN, Circuit Judges; and POLSTER, District Judge.*

          POLSTER, District Judge. Lance Dale Laird, who was convicted by a jury of conspiracy

to possess with the intent to distribute 500 grams or more of cocaine, appeals his conviction based

solely on the claim that he was denied constitutionally effective trial counsel. Because we generally

decline to review ineffective-assistance claims on direct appeal and because the record is not fully

developed, we affirm the conviction but decline to entertain the ineffective assistance claim on direct

appeal.

                                                   I.

          In a criminal complaint filed on January 25, 2013, Lance Laird, along with seven others, was

charged with conspiracy to possess with the intent to distribute 500 grams or more of cocaine. The



                *
               The Honorable Dan Aaron Polster, United States District Judge for the Northern District
      of Ohio, sitting by designation.
complaint, signed by Nathan Osborn, a veteran Lansing, Michigan police officer who was assigned

to Tri-County Metro Narcotics, was based on the following underlying facts.

       In November 2012, Officer Osborn had contact with a confidential informant (“CI”) who

provided information regarding narcotics trafficking in Lansing, Michigan. Specifically, he had

information about a man identified as Juan Guerrero, Jr. smuggling large amounts of cocaine, heroin,

crystal meth and marijuana in Lansing. The CI stated that Guerrero’s associate, Ray (later

determined to be Gonzalo Ramon Delarosa), was also involved in drug smuggling.

       On January 18, 2013, the CI informed Officer Osborn that Guerrero was leaving for Texas

that day to pick up drugs and bring them back to Michigan to sell. Officer Osborn successfully filed

an application for a pen register for a cell phone which he gave to the CI who, in turn, gave the

phone to Guerrero prior to leaving for Texas. The purpose of the cell phone was to track Guerrero’s

movement to and from Texas.

       Visual surveillance showed Guerrero leaving his residence in a white Chevy Tahoe on

January 18, 2013 and arriving at the residence of Ray Delarosa, who left the residence in a black

Pontiac Grand Prix. The two vehicles were followed to the City of Jackson, where visual

surveillance was discontinued.

       Electronic surveillance tracked the phone to Texas. FBI agents in Texas were contacted and

conducted visual surveillance of the subjects in Texas. An agent photographed Lance Laird standing

next to the Grand Prix at the Super 8 Motel in Weslaco, Texas on January 21, 2013. Tri-County

Metro Narcotics received information that a tan GMC Yukon was observed in Texas by local law

enforcement.




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       The phone was electronically monitored traveling from Texas to Indiana where the Grand

Prix was observed traveling north on I-465. The Grand Prix left the interstate at Exit 95 and

proceeded to a Pilot gas station. While at the Pilot gas station, Tri-County Metro Narcotics

surveillance observed the occupants of the Grand Prix meeting up with persons in the tan GMC

Yukon and a white pickup truck. All three vehicles were observed leaving the station at the same

time and entering I-465 traveling north. The vehicles were kept under constant visual surveillance

and were seen driving in tandem from Exit 95 on I-465 to Michigan via I-69. The vehicles were all

observed leaving Exit 278 off I-69 and proceeding to a McDonald’s restaurant where they were

observed sitting together. They were kept under surveillance until traffic stops were coordinated

by the Michigan State Police.1

       The Grand Prix was last in the line of the three vehicles and the first vehicle stopped in

Michigan. Laird was driving the vehicle and his passenger was Juan Guerrero, Jr. The second

vehicle stopped was the white pickup truck, driven by Julio Cruz Pizano with passengers Ryan

Joshua Nice and Robert Villareal. Prior to the white pickup being stopped, a Michigan State

Trooper attempted to pass it to stop the Yukon. The white truck, acting as a “bait” vehicle, swerved

into the middle of the road at the passing Trooper in an effort to divert the Trooper’s attention from

the “load” vehicle, or Yukon. Meanwhile, the Yukon, which had been driving 30 to 35 mph due to

hazardous snow and ice conditions, began driving at over 60 mph in an attempt to elude officers, but



              1
               In the criminal complaint, Officer Osborn averred that he knew, through his
      training and experience as a law enforcement officer, that narcotics traffickers will often
      travel in groups in an attempt to avoid being stopped by law enforcement. The traffickers
      will often have a “load” vehicle, which carries the narcotics, and “bait” vehicles which
      attempt to block law enforcement officers from stopping the load vehicle by committing
      some type of offense that draws the attention of the officer away from the load vehicle.

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eventually pulled over. The Yukon was driven by Ray Delarosa and carried Robert Villareal’s

mother (Genoveva Pizano Villareal) and brother (Abel Villarreal). During a subsequent search of

the Yukon, officers located approximately 4.5 kilograms of powder cocaine inside a spare tire that

was attached to the vehicle’s underbody.

          As a result of the investigation, the government filed a criminal complaint on January 25,

2013, charging the eight persons traveling from Texas to Michigan in the three vehicles with

conspiring to traffic cocaine. On January 28, 2013, the Court appointed an Assistant Federal Public

Defender to represent Laird. One day later, Attorney Ina R. O’Briant filed an appearance as retained

counsel on Laird’s behalf.

          On January 29, 2013, Laird made a detailed off-the-record proffer. The agreement that

Attorney O’Briant and Laird reviewed and signed prior to his proffer required him to be truthful,

to not withhold any material or requested information to protect himself or others, and to tell all he

knew about any criminal activity in which he had participated or of which he had information and

knowledge. The agreement reflected the parties’ understanding that it was not until after the off-the-

record proffer was made, and the government evaluated the information provided, that the

government would contact Laird concerning whether or not a plea agreement could be reached and

what concessions or recommendations, if any, the U.S. Attorney would be willing to make on his

behalf.

          The substance of Laird’s proffer was placed on the record by the government at a March 26,

2013 hearing. Laird admitted driving from Michigan to Texas with co-defendants Guerrero and

Delarosa in a black Grand Prix to pick up approximately $100,000 worth of marijuana. When they

arrived and examined the marijuana, Laird advised against purchasing it because it was covered with


                                                  4
mold. They then set up a deal to purchase 2.5 bricks of cocaine in Brownsville, Texas. Delarosa

and co-defendant Robert Villareal talked about the price of the cocaine being $25,000 per kilogram.

They picked up the cocaine and brought it back to the hotel, went to a tire shop to purchase a tire,

and then broke down the tire and hid the cocaine inside. Laird described how they first left the

hotel, with Laird, Guerrero and Delarosa in the Grand Prix; Villareal and his mother in the Yukon

GMC; and co-defendants Pizano, Nice and Abel Villareal in the pickup truck. Laird described how

some of them were pulled over by the police on the way back to Michigan, and later caught back

up with group.

       In an email sent to Attorney O’Briant on February 21, 2013, the Assistant U.S. Attorney

advised her that Laird “was not fully forthcoming in his proffer,” and declined to offer him a plea

agreement at that time. A few days later, O’Briant left on a three-week vacation. The record does

not show whether O’Briant conveyed the contents of the email to Laird or whether they had any

discussion as to how Laird might supplement his proffer.

       At a pretrial hearing on March 14, 2013, the Court continued the trial from April 9, 2013 to

May 7, 2013. Laird thereafter filed several pretrial motions. At the March 26, 2013 hearing on

Laird’s motion for a bill of particulars, the government detailed Laird’s proffer and explained what

he needed to admit in order to make a complete proffer (i.e., that he was the one who carried the

cocaine in a backpack on foot around the Hebbronville, Texas security checkpoint). The record does

not show what, if any, discussion O’Briant had with Laird following this hearing or whether she

advised him on how he might supplement his proffer to advance plea discussions or effectuate a plea

bargain.




                                                 5
         Laird was the only defendant to proceed to trial. By that time, Robert Villareal’s mother and

brother had been dismissed from the case and the remaining five defendants had entered guilty pleas.

At trial, the government presented Officer Osborn who testified about his relationship with the CI

and his investigation, three law enforcement officers involved in stopping the three vehicles in

Michigan, the FBI agent who conducted visual surveillance in Texas and took pictures of Laird

outside the Weslaco, Texas motel, and three co-defendants who testified in detail about the trip to

Texas to purchase drugs, and about Laird hiking the drugs in a backpack around the checkpoint in

Texas.

         After the government rested its case mid-day on the third day of trial, the Court recessed the

jury to ask Attorney O’Briant if she intended to present any witnesses or rest her case. She

explained that one of her witnesses, a social worker, was in the hospital having had a baby the day

before. O’Briant explained that the social worker would have testified that she had contacted Laird

on the way to Texas to tell him that he needed to return to Michigan as soon as possible because

Child Protective Services was going to remove his daughter from her mother’s custody. The court

noted that Laird did not have to be along for the entire ride to be part of the conspiracy. When the

court asked O’Briant if she had any other witnesses, O’Briant said that she had subpoenaed Laird’s

uncle to testify but did not realize the government would finish its case that day, and so told him that

he did not need to show up. When asked about Laird’s uncle’s testimony, O’Briant stated that he

would testify about Laird’s relationship with Delarosa and that he would testify about things Laird

had told him. The judge explained to O’Briant that witnesses often have to sit outside the courtroom

until they are needed, the uncle’s hearsay testimony would be inadmissible, and he could not see

how the proffered evidence would bear on Laird’s defense in any meaningful way. He then called


                                                   6
the jury back and informed them that Laird had decided to rest on the presumption of innocence

without presenting evidence. The jury thereafter convicted Laird of the conspiracy charge after

deliberating less than one hour.

          Attorney O’Briant filed a motion for a new trial in which she blamed the court and

prosecutor for depriving her of the ability to provide effective assistance of counsel. The trial judge

promptly denied it, finding that the motion was premised “on demonstrably false statements of fact”

and observing that O’Briant made no references whatsoever to the trial transcript.

          O’Briant also filed a motion to withdraw. At the hearing on this motion, O’Briant testified

that Laird was dissatisfied with her performance and wanted to bring an ineffective assistance claim

against her, but acknowledged that she was not the proper person to bring that claim on Laird’s

behalf. More importantly, O’Briant admitted that she neither interviewed, nor attempted to

interview, any of the 17 persons she identified on her witness list, she did not conduct any kind of

investigation prior to trial, and she only took the case because she thought it was going to be

resolved through a plea bargain. She testified that, had she known the case was going to trial, she

probably would not have taken it. She testified that she didn’t generally “do federal criminal

matters” and that Laird was “paying a price for that.” She admitted that her three-week vacation

prior to trial left her no time to adequately educate herself on the law and the facts, and caused her

to file untimely motions and miss important deadlines, and rendered her incapable of presenting her

witnesses at trial. The court agreed it was apparent that O’Briant was “in over her head.”

Accordingly, the court granted the motion to withdraw and appointed Attorney Richard Zambon to

represent Laird for sentencing. On September 10, 2013, Laird was sentenced to 135 months in

prison.


                                                   7
                                                  II.

       On appeal, Laird contends that the record is sufficiently developed for us to rule on his

ineffective assistance claim on the merits. This is due to O’Briant’s on-the-record admission that

she conducted no pretrial investigation of witnesses or evidence because she expected the case

against Laird to result in a plea bargain, and due to O’Briant’s failure to effectively pursue a plea

bargain. The government maintains that the record is not sufficiently developed for Laird to bring

an ineffective asssitance claim but contends that if we rule on the merits, the claim should be denied.

       The Sixth Amendment to the Constitution guarantees the effective assistance of counsel to

criminal defendants. Strickland v. Washington, 466 U.S. 668 (1984). Ineffective assistance claims

are evaluated pursuant to the two-prong test articulated in Strickland. 466 U.S. at 687. To prove

that counsel was constitutionally ineffective, a defendant must show that (1) counsel’s performance

was deficient, and (2) the deficiency resulted in prejudice. Id.

       “Ordinarily, this court declines to review ineffective assistance of counsel claims on direct

appeal.” United States v. Henderson, 174 F.App’x 880, 885 (6th Cir. 2006) (citing United States

v. Galloway, 316 F.3d 624, 634 (6th Cir. 2003) and United States v. Shabazz, 263 F.3d 603, 612 (6th

Cir. 2001)). “This rule stems from the lack of a sufficient record to evaluate such a claim on direct

appeal given the requirement that the defendant show prejudice to succeed on such a claim.”

Henderson, 174 F.App’x at 885 (citing Galloway, 316 F.3d at 634). “As a result, unless the record

is adequate to permit a review of counsel’s performance on direct appeal, this court usually requires

that an ineffective assistance claim be brought through a post-conviction proceeding under 28 U.S.C.

§ 2255. Id. “An exception may be drawn where the record on direct appeal is sufficiently

developed.” United States v. Woodruff, 735 F.3d 445, 451 (6th Cir. 2013). However, “[w]here the


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record is silent as to counsel’s reasons for his action or inaction, this court ‘cannot determine

whether his actions reflected a reasoned trial strategy’ and cannot adjudicate the question of whether

he rendered ineffective assistance.” United States v. Caldwell, 555 F.App’x 597, 598 (6th Cir. 2014)

(quoting United States v. Lopez-Medina, 461 F.3d 724, 737 (6th Cir. 2006)).

       “It is the duty of the lawyer to conduct a prompt investigation of the circumstances of the

case and to explore all avenues leading to facts relevant to the merits of the case and the penalty in

the event of conviction.” Rompilla v. Beard, 545 U.S. 374, 387 (2005) (quoting 1 ABA Standards

for Criminal Justice 4-4.1 (2d ed. 1982 supp.)). “The duty to investigate exists regardless of the

accused’s admissions or statements to defense counsel of facts constituting guilt or the accused’s

stated desire to plead guilty.”     Id.   Furthermore, “counsel has a duty to make reasonable

investigations or to make a reasonable decision that makes particular investigations unnecessary.”

Cauthern v. Colson, 736 F.3d 465, 485 (6th Cir. 2013) (quoting Strickland, 466 U.S. at 690-91)

(emphasis added)). “Even when counsel’s decision not to investigate is inadequately informed, a

defendant must show that counsel’s ‘strategic decision . . . not to investigate fully the law and facts

possibly relevant to the defense was [not] a ‘reasonable professional judgment.’” Shopteese v.

Waddington,, 530 F.App’x 762 (10th Cir. 2005) (quoting Attorney Gen. of Kan., 425 F.3d 853, 859

(10th Cir. 2005), in turn quoting Strickland, 466 U.S. at 690-91).

       The record shows that O’Briant’s failure to conduct a pretrial investigation was not the result

of a reasoned professional judgment and had nothing to do with trial strategy. See United States v.

Holder, 410 F.3d 651, 655 (10th Cir. 2005) (“[I]t is the informed tactical decision that is within

counsel’s discretion.”) (emphasis in original). O’Briant admitted that she failed to interview any

witnesses (including the ones she subpoenaed) or conduct any investigation because she expected


                                                  9
the case to result in a plea deal. She testified that she didn’t generally handle federal criminal

matters, and admitted that her three-week vacation prior to trial left her no time to adequately

educate herself on the law and the facts of the case.

       A defense counsel’s self-confessed admission of deficient representation does not constitute

ineffectiveness per se; it is just one factor to be considered in determining whether counsel was

constitutionally ineffective. The person asserting an ineffective assistance claim for failure to

investigate must show that the failure was prejudicial. Davis v. Booker, 589 F.3d 302, 306-07 (6th

Cir. 2009).

       Although Laird complains that O’Briant was ineffective for failing to conduct any pretrial

investigation, his principal argument is that she did nothing to develop his vacation defense – a

theory that he went to Texas not to obtain drugs, but to vacation. But according to the terms of the

proffer agreement, had Laird testified at trial in support of the vacation defense, the Government

could have impeached him with his own admissions. And while the Government could not have

used Laird’s proffer to impeach any other witness who testified in support of the vacation defense,

attorney disciplinary rules precluded O’Briant from knowingly presenting false evidence or perjured

testimony. See Nix v. Whiteside, 475 U.S. 157, 166 (1986) (“Although counsel must take all

reasonable lawful means to attain the objectives of his client, counsel is precluded from taking steps

or in any way assisting the client in presenting false evidence or otherwise violating the law.”); U.S.

v. Cronic, 466 U.S. 648, 656 n.19 (1984).

       Based on Laird’s admission that he went from Michigan to Texas and back to purchase and

distribute drugs, it is questionable whether O’Briant could have ethically presented any witnesses

to advance Laird’s vacation defense, which she knew to be contradicted by Laird’s proffer. This


                                                  10
made it critical for her to engage in plea discussions with the government, particularly since this was

her goal when she decided to represent Laird and it was likely that some or all of the co-defendants

who entered guilty pleas would testify against him.

       The Sixth Amendment right to effective counsel extends to the plea-bargaining process and

is governed by the two-prong Strickland test. Lafler v. Cooper, — U.S. —, 132 S. Ct. 1376, 1384

(2012) (citing Missouri v. Frye, — U.S. —, 132 S. Ct. 1399, 1386-87 (2012)); Hill v. Lockhart, 474

U.S. 52, 57 (1985). To establish constitutionally ineffective assistance in the plea-bargaining

process, the defendant must show not only that counsel was deficient, but that the outcome of the

plea process would have been different with competent advice. Lafler, 132 S. Ct. at 1384 (citing

Frye, 132 S. Ct. at 1388-89)).

       The Supreme Court cases on counsel’s deficient performance with regard to plea discussions

generally fall into one of two categories: (1) counsel failed to communicate a favorable plea offer

to the defendant before the time to accept the offer expired, see, e.g., Frye (counsel’s failure to

communicate a formal offer from the prosecution to accept a plea on terms and conditions that may

be favorable to the accused constitutes deficient performance); or (2) counsel gave materially

inaccurate sentencing information or advice to defendant who, based on that advice, rejected the

offer and proceeded to trial, see, e.g., Hill (counsel’s failure to accurately inform the defendant of

the amount of time he would have to spend in prison before he became eligible for parole constituted

deficient performance).

       That this case may not fall squarely into either of these categories does not mean that Laird

may not have a claim for ineffective assistance of counsel. However, the existing record does not

reveal what, if any, discussions O’Briant had with Laird regarding the inadequacies of his proffer;


                                                  11
what discussions, if any, O’Briant had with the government regarding the proffer; why Laird omitted

critical details in his proffer; and whether counsel’s deficiencies, if there were any, impacted Laird’s

decision whether to stand trial or plead guilty. Accordingly, we decline to review the ineffective

assistance of counsel claim on the merits at this time. The claim is denied without prejudice. Laird

is free to raise the claim in a proceeding under 28 U.S.C. § 2255. Henderson, 174 F.App’x at 885.

Because this is the only claim Laird raised on appeal, we AFFIRM his conviction.




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