         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




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