                NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                           File Name: 07a0776n.06
                           Filed: November 5, 2007

                                            No. 06-2110

                          UNITED STATES COURT OF APPEALS
                               FOR THE SIXTH CIRCUIT


CHARLES CREHORE,                                  )
                                                  )
       Petitioner-Appellant,                      )
                                                  )
v.                                                )   ON APPEAL FROM THE UNITED
                                                  )   STATES DISTRICT COURT FOR THE
UNITED STATES OF AMERICA,                         )   EASTERN DISTRICT OF MICHIGAN
                                                  )
       Respondent-Appellee.                       )


       Before: MARTIN, GIBBONS, and SUTTON, Circuit Judges.


       SUTTON, Circuit Judge. Charles Crehore challenges the district court’s denial of his motion

to vacate a judgment allegedly obtained through fraud upon the court. Because the district court

acted well within its discretion in denying the motion, we affirm.


                                                 I.


       In 1995, a jury convicted Charles Crehore of one count of conspiracy to possess with intent

to distribute marijuana. See 21 U.S.C. §§ 841, 846. The district court sentenced Crehore to the

mandatory statutory minimum, 240 months, see 21 U.S.C. § 841(b)(1)(A), after finding Crehore

responsible for more than 1,000 kilograms of marijuana. In calculating the kilograms attributable

to Crehore, the court included a large shipment that had been scheduled to be delivered after

Crehore’s arrest but that had been destroyed in a fire before the delivery.
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Crehore v. United States

        On direct appeal, our court affirmed Crehore’s conviction and sentence. See United States

v. Gaitan-Acevedo, 148 F.3d 577, 594, 596 (6th Cir. 1998). In affirming the district court’s

attribution of the large post-arrest shipment to Crehore, the court relied upon post-arrest

communications between Crehore and one of his co-conspirators that the government in its appellate

brief alleged had taken place but in fact never occurred. See Crehore v. United States, 127 F. App’x

792, 794–95 (6th Cir. Apr. 4, 2005). The government arguably tried to avoid this error when it sent

a letter to the court after oral argument offering other factual bases for upholding the district court’s

finding. See id. “Nevertheless, we affirmed Crehore’s sentence based on allegations in the

government’s brief, but not substantiated in the . . . letter . . . .” Id. at 798–99. Crehore sought

rehearing—claiming that the panel erroneously relied upon the “false” post-arrest allegations in the

government’s brief in reaching its conclusion—but our court denied relief. Id. at 799 (internal

quotation marks omitted).


        After the Supreme Court denied his petition for a writ of certiorari, see Crehore v. United

States, 525 U.S. 912 (1998), Crehore filed a § 2255 motion, alleging that his “counsel was

ineffective at sentencing and on appeal for not adequately challenging the quantity of marijuana

attributable to him,” D. Ct. Op. at 1. The district court denied the motion, concluding that Crehore’s

“counsel vigorously challenged the quantity of marijuana attributable to [him] at every stage in the

case, consistently maintaining that [he] was responsible for less than 1000 kilograms.” Id. at 20

(footnote omitted). In reaching that conclusion, the district court acknowledged the error in the

government’s brief on direct review and it noted that “the government did not rely [on that


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Crehore v. United States

information] in arguing to the Court . . . that [Crehore] is not entitled to relief under § 2255,” id. at

19.


         Our court affirmed, reasoning that counsel’s “performance reveals no flaws of constitutional

import.” See Crehore, 127 F. App’x at 799. “[T]roubled that the government’s erroneous

characterization of Crehore’s post-arrest contact with [one of his co-conspirators] was not explained

to the panel that decided his direct appeal,” the court noted that, if the government had perpetrated

a fraud upon the direct-appeal panel, “a conceivable remedy would be to petition the original panel

to recall the mandate in the direct appeal.” Id. at 799 n.4. “In any event,” the court explained, “we

cannot conclude that a complete miscarriage of justice has occurred in this matter as a result of our

unfortunate reliance upon the government’s [erroneous allegations],” because the “evidence

[discussed in the government’s post-oral-argument letter] could support the trial court’s conclusion

that Crehore should also be held accountable for the drugs involved in the [post-arrest] load.” Id.


         Taking this suggestion to heart, Crehore filed a motion with the panel that heard his direct

appeal, asking it to recall the original mandate or to reinstate the appeal. The panel denied the

motion, see United States v. Crehore, No. 95-1764 (6th Cir. Nov. 23, 2005), and subsequently denied

Crehore’s motion for reconsideration, see United States v. Crehore, No. 95-1764 (6th Cir. Jan. 6,

2006).


         Crehore filed a motion under Rule 60(b) of the Federal Rules of Civil Procedure, asking the

district court to vacate its order denying § 2255 relief “on the grounds that the government’s error


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Crehore v. United States

regarding the evidence linking [him] to the [post-arrest] load constitute[d] a fraud upon the Court,

and absent that error, [he] would have been entitled to relief under § 2255.” Crehore v. United

States, No. 99-CV-74332, 2006 WL 2255357, at *4 (E.D. Mich. Aug. 7, 2006). The district court

denied the motion, reasoning that it “was well aware of the erroneous statement in the government’s

brief on appeal at the time it denied [Crehore’s] § 2255 motion” and that, “most significantly, the

original panel recently declined to recall the mandate or reinstate the direct appeal based on the same

argument [Crehore] makes here. In doing so, the original panel found no fraud warranting relief

based on the government’s statement.” Id.


                                                   II.


        To the extent Crehore’s claim arises under Rule 60(b)(3), he was required to show by clear

and convincing evidence that the district court’s judgment was obtained by fraud or misconduct. See

Jordan v. Paccar, Inc., No. 95-3478, 1996 WL 528950, at *9 (6th Cir. Sept. 17, 1996) (per curiam).

To the extent Crehore means to raise an independent action for fraud upon the court, he was required

to prove five elements: (1) conduct by an officer of the court (2) that is directed towards the judicial

machinery itself, (3) that is intentionally false, wilfully blind to the truth or is in reckless disregard

for the truth, (4) that is a positive averment or concealment when one is under a duty to disclose and

(5) that deceives the court. Workman v. Bell, 484 F.3d 837, 840 n.1 (6th Cir. 2007). We review a

district court’s denial of either type of motion for abuse of discretion. Cacevic v. City of Hazel Park,

226 F.3d 483, 490 (6th Cir. 2000); Barrett v. Sec’y of Health & Human Servs., 840 F.2d 1259, 1263

(6th Cir. 1987) (per curiam).

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        Whether we analyze Crehore’s claim under the Rule 60(b)(3) or the fraud-upon-the-court

standard—which “in most respects [is] more difficult to meet than that under Rule 60(b)(3),” see

Spirko v. Bradshaw, 161 F. App’x 492, 494 (6th Cir. Dec. 22, 2005)—the claim fails because

Crehore did not present any evidence that the government defrauded, or attempted to defraud, the

district court that denied his § 2255 motion. The opinion of the district court, indeed, directly refutes

the necessary premise of his claim: “[T]he government did not rely on [the false statements] in

arguing to the Court that the [post-arrest] load was properly attributed to [Crehore] and that

[Crehore] is not entitled to relief under § 2255. The government instead points to the same four

pieces of evidence [discussed in its post-oral-argument letter to the direct-appeal panel].” D. Ct. Op.

at 19. The § 2255 court, it concludes, “was well aware of the erroneous statement in the

government’s brief on appeal at the time it denied [Crehore’s] § 2255 motion.” Crehore, 2006 WL

2255357, at *4. Our court said nearly as much when it affirmed the district court’s denial of

Crehore’s § 2255 motion and suggested that Crehore’s only “conceivable remedy would be to

petition the original panel to recall the mandate in the direct appeal.” Crehore, 127 F. App’x at 799

n.4. Crehore did that, and the original panel denied his petition.


        Crehore resists this conclusion on the ground that the government attached the brief it filed

in the direct appeal together with the panel opinion from the direct appeal to its § 2255

pleadings—thereby defrauding that court. But we cannot fault the government for providing

information in that proceeding that was relevant to Crehore’s ineffective-assistance claim. Nor,

given the relevance of this material to the § 2255 proceeding, can Crehore offer any tenable reason


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Crehore v. United States

for concluding that the government’s inclusion of this material in that record rose to the level of “a

deliberately planned and carefully executed scheme designed to subvert the integrity of the judicial

process,” Buell v. Anderson, 48 F. App’x 491, 499 (6th Cir. Sept. 24, 2002) (internal quotation

marks omitted), particularly when, in the words of the court that denied Crehore’s § 2255 motion,

“the government did not rely” on the erroneous statements in responding to Crehore’s § 2255 claims,

D. Ct. Op. at 19.


       The final straw in all of this is the reasoning of the panel that heard Crehore’s direct appeal

and that was asked to recall the mandate based on the government’s misstatement. When it

concluded that the government’s misstatement in its appellate brief did not warrant relief, see

Crehore, No. 95-1764 (6th Cir. Nov. 23, 2005) (“[W]e cannot conclude that the court was deceived

by the government’s misstatements or the judicial process has been subverted.”), it removed any

conceivable basis for us to conclude that the same misstatement—when attached to § 2255 pleadings

and upon which the § 2255 court did not rely—somehow warrants relief. See Spirko, 161 F. App’x

at 493 (rejecting a habeas petitioner’s fraud claim under Rule 60(b)(3) because, even assuming that

the prosecutor misrepresented information, “the information at issue did not bear upon the outcome

of the federal habeas proceedings”); Jordan, 1996 WL 528950, at *9 (holding that denying a Rule

60(b)(3) motion is proper where there is “clear and convincing evidence that the misbehavior . . . had

no prejudicial effect on the outcome of the litigation”) (emphasis omitted).




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                                       III.


       For these reasons, we affirm.




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