           RECOMMENDED FOR FULL-TEXT PUBLICATION
                Pursuant to Sixth Circuit Rule 206
        ELECTRONIC CITATION: 2000 FED App. 0008P (6th Cir.)
                    File Name: 00a0008p.06


UNITED STATES COURT OF APPEALS
                  FOR THE SIXTH CIRCUIT
                    _________________


                             ;
                              
 ROBERT DALE MURR,
                              
        Petitioner-Appellant,
                              
                              
                                             No. 98-6202
          v.
                              
                               >
 UNITED STATES OF AMERICA, 
        Respondent-Appellee. 
                             1

          Appeal from the United States District Court
        for the Eastern District of Kentucky at Lexington.
        Nos. 97-00158; 90-00026—Henry R. Wilhoit, Jr.,
                       Chief District Judge.
                  Argued: September 22, 1999
              Decided and Filed: January 7, 2000
Before: MERRITT and CLAY, Circuit  Judges; ALDRICH,
                  District Judge.*




    *
     The Honorable Ann Aldrich, United States District Judge for the
Northern District of Ohio, sitting by designation.


                                 1
2     Murr v. United States                       No. 98-6202

                    _________________
                         COUNSEL
ARGUED: Herbert S. Moncier, Knoxville, Tennessee, for
Appellant. James E. Arehart, OFFICE OF THE U.S.
ATTORNEY, Lexington, Kentucky, for Appellee.
ON BRIEF: Herbert S. Moncier, Knoxville, Tennessee, for
Appellant. Frances E. Catron, OFFICE OF THE U.S.
ATTORNEY, Lexington, Kentucky, for Appellee.
                    _________________
                        OPINION
                    _________________
  CLAY, Circuit Judge. Petitioner, Robert Dale Murr,
appeals an order entered by the district court denying
Petitioner’s motion to vacate his narcotics trafficking
conviction and sentence pursuant to 28 U.S.C. § 2255. For
the reasons set forth below, we AFFIRM the judgment of the
district court.
                      BACKGROUND
                     Procedural History
1.   Eastern District of Tennessee Prosecution
  On August 22, 1989, a grand jury in the Eastern District of
Tennessee issued a six-count indictment charging Petitioner
with various narcotics trafficking offenses. Petitioner was
charged with two counts of distribution of cocaine; the first
count charged that Petitioner distributed ten ounces on July 4,
1989, and the second charged that he distributed 500 grams or
more on August 17, 1989, in violation of 21 U.S.C.
§ 841(a)(1). Also, Petitioner was charged with four counts of
using a telephone or telephone paging device to facilitate
these cocaine distributions, in violation of 21 U.S.C. § 843(b).
22    Murr v. United States                         No. 98-6202      No. 98-6202                       Murr v. United States      3

169 F.3d 1035, 1041 (6th Cir. 1999) (emphasis added). The              On the eve of the Tennessee trial, the government proposed
same holds true here. Under the facts of the instant case, the       a plea agreement to Petitioner’s attorney. Following
jury’s guilty verdicts on Counts 2 through 11 required the           negotiations, the parties presented a conditional plea
jurors to unanimously agree that Petitioner had committed at         agreement to Eastern District of Tennessee Judge Jarvis on
least three predicate narcotics violations and that these            January 16, 1990. Judge Jarvis deferred acceptance of the
violations were related to one another because they were all         plea agreement, pending a presentence investigation. The
part of the cocaine distribution conspiracy.                         presentence investigation was completed on April 10, 1990.
                                                                     On June 12, 1990, Judge Jarvis accepted the plea agreement
  Accordingly, the district court’s failure to expressly instruct    and sentenced Petitioner to 63 months of imprisonment and
jurors that they must unanimously agree which offenses               a $70,000 fine. As part of this agreement, the government
constitute the CCE did not have a substantial and injurious          agreed not to further charge Petitioner in the Eastern District
influence or effect on the jury’s guilty verdict in the CCE          of Tennessee or in the Northern District of Georgia for certain
count. See Long, 190 F.3d at 476 n.3 (concluding that the            offenses of which it had knowledge.
district court’s failure to give the CCE unanimity instruction
required under Richardson “was clearly harmless as the jury          2.   Eastern District of Kentucky Prosecution
also unanimously found him guilty of more than three drug
violations committed in the course of the ongoing conspiracy            In February of 1990, during the presentence investigation
to distribute cocaine”); Escobar-de Jesus, 187 F.3d at 162           mentioned above, the government uncovered facts indicating
(holding that the erroneous CCE instruction was harmless             that Petitioner had been a leader in a cocaine trafficking
where “[t]he evidence introduced to support the separate             conspiracy in the Eastern District of Kentucky. Subsequently,
convictions on the [predicate narcotics violations] also             in March of 1991, while Petitioner was serving the sentence
establishes inescapably their relatedness”).                         imposed in the Tennessee prosecution, a grand jury in the
                                                                     Eastern District of Kentucky issued an indictment charging
  Accordingly, the district court’s failure to instruct the jurors   Petitioner and twelve other defendants with narcotics
that they must unanimously agree about which narcotics               trafficking and related offenses. Specifically, Petitioner was
violations constitute the “continuing series” of violations for      charged with 1) conspiracy to distribute cocaine in violation
CCE purposes does not require vacatur of Petitioner’s CCE            of 21 U.S.C. § 846 (Count 1); 2) eleven substantive counts of
conviction and sentence because the error was harmless.              cocaine possession with the intent to distribute, and aiding
                                                                     and abetting, in violation of 21 U.S.C. § 841(a)(1) and 18
  For the reasons set forth above, we AFFIRM the judgment            U.S.C. § 2 (Counts 2 through 12); and 3) conducting a
of the district court.                                               continuous criminal enterprise (“CCE”) in violation of 21
                                                                     U.S.C. § 848 (Count 13).
                                                                       On October 9, 1991, a jury trial resulted in Petitioner’s
                                                                     conviction on Counts 1 through 11 and Count 13 of the
                                                                     indictment. The district court later vacated Petitioner’s
                                                                     conviction on Count 10 as duplicitous of Count 9; Petitioner’s
                                                                     conspiracy conviction under Count 1 was vacated because it
                                                                     merged with his CCE conviction under Count 13. Petitioner
                                                                     was ultimately sentenced to 240 months imprisonment, to be
4    Murr v. United States                      No. 98-6202      No. 98-6202                            Murr v. United States         21

served concurrently with his prior drug sentence from the          • May 8 and 9, 1989 (counts 9 and 10); and
Eastern District of Tennessee. Petitioner’s conviction and
sentence were subsequently affirmed on direct appeal. See          • May 18, 1989 (count 11).3
United States v. Phibbs, 999 F.2d 1053 (6th Cir. 1993), cert.
denied, 510 U.S. 1119 (1994).                                    (J.A. at 156-63.) At trial, the government presented
                                                                 substantial evidence that these narcotics violations were
3.   Petitioner’s § 2255 Motion to Vacate his Eastern            committed as part of the wide-ranging conspiracy, headed by
     District of Kentucky Conviction and Sentence                Petitioner, to acquire and distribute cocaine. Notably,
                                                                 Petitioner — who does not contest the accuracy of the
  On April 23, 1997, Petitioner filed the § 2255 motion          evidence presented at trial — nowhere contends that these
currently on appeal to vacate his conviction and sentence        violations were isolated events that by chance happened in
imposed in the Eastern District of Kentucky. Petitioner          sequence and involved the same people.
principally argued that, in light of the preceding Tennessee
conviction, his Kentucky conviction for substantive cocaine        In United States v. King, a case with a strikingly similar fact
violations and for operation of a CCE involving cocaine          pattern, this Court held that the district court’s failure to give
distribution violated his rights under the Double Jeopardy and   the CCE unanimity instruction could amount to no more than
Due Process Clauses of the Fifth Amendment, and under            harmless error where the trial evidence made clear that the
principles of res judicata.                                      predicate narcotics violations were part of a “continuing
                                                                 series”:
  On March 31, 1998, the magistrate judge assigned to the
case recommended that Petitioner’s motion be denied.               In this case, King [the defendant] was convicted on all of
Petitioner subsequently filed objections to the magistrate’s       the underlying predicate offenses. We thus have no
Report and Recommendation. On July 6, 1998, the district           doubt that the jury was unanimous in finding that King
court issued an opinion and order adopting the magistrate’s        committed not only three, but nine marijuana-related
Report and Recommendation, and dismissing Petitioner’s             predicate offenses. Moreover, the evidence presented to
§ 2255 motion. Petitioner then moved to vacate the order           the jury clearly established that these offenses were
dismissing his § 2255 motion on grounds not raised in the          related to one another, because they were all a part of
original petition; this last motion was denied on August 10,       King’s ongoing distribution business. King has never
1998.                                                              claimed otherwise. Given this record, no rational jury
                                                                   could unanimously find King guilty of the underlying
  In denying Petitioner’s § 2255 motion, the district court        predicate offenses without also unanimously finding that
granted a certificate of appealability on only two issues: (i)     they were related to each other. Consequently . . . the
whether Petitioner was subject to double jeopardy; and (ii)        alleged error did not affect the verdict in this case and
whether Petitioner was entitled to severance from one of his       was harmless.
co-defendants for purposes of trial. Petitioner then filed a
timely notice of appeal.

                                                                     3
                                                                       The jury acquitted Petitioner of count 12, which charged cocaine
                                                                 possession with the intent to distribute on April 11, 1990 — after
                                                                 Petitioner had already been in federal custody for at least eight months.
20   Murr v. United States                        No. 98-6202      No. 98-6202                       Murr v. United States          5

sure that the error had no or very slight effect or influence on                               Facts
the jury’s decision, the verdict and judgment must stand.
O’Neal v. McAninch, 513 U.S. 432, 436-38 (1995). To                  The following factual background is taken directly from
warrant habeas relief because of incorrect jury instructions,      this Court’s opinion affirming Petitioner’s conviction and
Petitioner must show that the instructions, as a whole, were so    sentence on direct appeal. See Phibbs, 999 F.2d at 1060-62.
infirm that they rendered the entire trial fundamentally unfair.
See Estelle v. McGuire, 502 U.S. 62, 72 (1991).                         On February 23, 1990, Jerry Parks was detained by FBI
                                                                     agents in Nashville, Tennessee, in connection with an
   The error here was harmless. First, the jury’s decision to        ongoing drug investigation. After discussions with the
convict Petitioner on Counts 2 through 11 of the indictment          government, he agreed to cooperate in the probe.
— which were alleged to be predicate violations supporting              Parks revealed that his friend, Robert Murr, had visited
the CCE count — necessarily establishes that the jurors              him a number of times during the summer of 1988 when
agreed unanimously that he was guilty of those offenses.             Parks was residing in a federal ‘halfway house’ in
“This decision ensures that the concern at the core of the           Bowling Green, Kentucky. On some of these occasions,
Richardson decision — namely, that jurors might convict on           Murr would deliver cocaine to him to sell. Murr wanted
the basis of violations for which there was non-unanimity —          Parks to come to Knoxville, Tennessee, to work for him
is not present.” Escobar-de Jesus, 187 F.3d at 162.                  in his drug distribution venture. He directed Robert
                                                                     Phibbs, who was on the payroll of one of Murr’s
   Second, given the evidence adduced at trial, in finding           legitimate businesses, Automotive Enterprises, to write
Petitioner guilty of Counts 2 through 11, the jury necessarily       a letter to Parks’ federal probation officer requesting that
made factual findings establishing that these violations were        he be allowed to transfer to the Knoxville area. Murr
related to one another. As noted, § 848(c) requires that jurors      told Phibbs to promise the probation authorities that
agree that the “series” of narcotics violations be “continuing”      Parks would be provided with a job at Automotive
in nature — in other words, that they be related to each other       Enterprises. His efforts were rewarded, and Parks was
in some way. See, e.g., United States v. Edmonds, 80 F.3d            permitted to move to Knoxville.
810, 822 (3d Cir. 1996) (en banc) (holding that the jury must           Parks’ position at Automotive Enterprises was a
unanimously agree that the underlying narcotics violations           subterfuge; he actually spent his time helping Murr
were “related” to each other for CCE purposes). In the instant       distribute cocaine. In August of 1988, Murr arranged to
case, Counts 2 through 11 each charged that while in                 sell four kilograms of cocaine to Billie Dye and David
Lexington, Kentucky, the defendants, including Petitioner,           Hurt. Parks and Dye gathered approximately $100,000
possessed cocaine with the intent to distribute, in violation of     in cash and, pursuant to Murr’s instructions, started out
21 U.S.C. § 841(a)(1) and 18 U.S.C. § 2, on or about the             in Lexington, Kentucky, where they were to meet with
following time periods:                                              Murr. . . . [T]he transaction was consummated the next
                                                                     day.
  • August 25, 1988 (count 2);                                          Beginning in September of 1988, Parks traveled with
                                                                     Murr and another drug dealer named Tommy McKeehan
  • September, October and November of 1988 (counts 3,               to the Lexington area every few weeks to obtain multi-
    4 and 5);                                                        kilogram quantities of cocaine. During the first such trip,
                                                                     Parks became acquainted with Murr’s drug source,
  • February, March and April of 1989 (counts 6, 7 and 8);           Kenneth Lawson. Whenever Murr needed cocaine, he
6      Murr v. United States                       No. 98-6202    No. 98-6202                        Murr v. United States      19

    went with McKeehan to a pay telephone and called              elements, namely the several ‘violations,’ in respect to each
    Lawson. After a deal had been struck, Murr, Parks and         of which the jury must agree unanimously and separately.”
    McKeehan would meet at Judy Murr’s [Petitioner’s ex-          Id. at 1710. Because the Court engaged in such deliberations,
    wife] residence early in the morning before leaving for       Petitioner claims that the decision in Richardson was a matter
    Kentucky. Murr and McKeehan would then organize the           of substantive law, and therefore, Teague does not apply. As
    money to be used in the sale into $1,000 bundles, putting     a result, the holding in Richardson should apply retroactively.
    these stacks in brown paper bags.                             We agree with Petitioner’s contention.
       Aside from taking part in these trips, Parks served as
    the ‘front man’ for the drug distribution ring. Murr            Richardson involves the substantive construction of a
    introduced Parks to his regular cocaine customers,            criminal statute. The Court in Richardson examined the
    including Raymond Huckelby and Edward Rogers. At              meaning of § 848(c)’s phrase “series of violations,” and
    such meetings, Murr would instruct Parks with regard to       determined that it meant the jury must agree that the
    the amount of cocaine to be supplied, the price of the        defendant committed some continuing series of violations,
    drug, and how often it was to be furnished. He would          and which specific violations make up that continuing series.
    then tell Parks and the purchaser to exchange telephone       Richardson, 119 S. Ct. at 1713. Therefore, in light of
    numbers, beeper numbers, and beeper codes in order to         Bousley, Richardson applies retroactively because it set forth
    stay in contact. For several months, Parks delivered          substantive law. See Bousley, 118 S. Ct. at 1609.
    drugs to Murr’s customers in this fashion. When Murr
    was unavailable, Parks would turn over the money he             The analysis does not, however, end at this point. We
    received in return to either Phibbs or to Judy Murr.          affirm Petitioner’s CCE conviction and sentence because the
       In October of 1988, Parks first encountered Victor         harmless error doctrine applies and the district court’s error in
    Rojas while on one of the excursions to Kentucky he           failing to instruct the jury was harmless. The Richardson
    made with Murr and McKeehan to buy cocaine. Rojas,            Court noted the application of harmless error in such
    who was Lawson’s supplier, brought the drugs to the           instances, as it remanded the case to the United States Court
    location where the sale would take place. . . .               of Appeals for the Seventh Circuit to determine “whether to
       Parks, Murr, and McKeehan would either give their          engage in harmless error analysis, and if so, whether the error
    money to Lawson or he would leave it in Rojas’ vehicle,       was harmless in this case.” Richardson, 119 S. Ct. at 1713.
    taking the cocaine for which they had paid. McKeehan          See Neder v. United States, 119 S. Ct. 1827, 1837 (1999)
    would then be given his share. After the drugs were           (holding that the trial court’s omission during its jury
    driven back to Knoxville, Parks and Murr stashed them         instructions of an essential element of the offense charged is
    at the house Murr rented for his girlfriend, Diane Whited.    subject to harmless error review); United States v. Escobar-de
    She stored the cocaine in the attic in a green duffel bag     Jesus, 187 F.3d 148, 161 (1st Cir.1999) (holding that the
    with a padlock on it. In order for Parks to get the cocaine   district court’s failure to include a CCE unanimity instruction
    from Whited’s house to distribute, he would have to           under Richardson was only harmless error).
    contact Murr, who, in turn, would call Whited to set up
    a time for the two of them to come over. Parks went to           Moreover, for purposes of federal habeas corpus review, a
    Whited’s residence 15 to 20 times in the fall of 1988 to      constitutional error that implicates trial procedures shall be
    pick up drugs. On at least one occasion, Whited assisted      considered harmless unless it had a "substantial and injurious
    Murr and Parks in breaking down the cocaine into salable      effect or influence in determining the jury's verdict." Brecht
    quantities.                                                   v. Abrahamson, 507 U.S. 619, 637 (1993). If this Court is
18    Murr v. United States                         No. 98-6202      No. 98-6202                      Murr v. United States         7

applies retroactively; therefore, his CCE conviction and                 Keeping the cocaine at Whited’s house proved to be
sentence must be vacated because the district court failed to         unworkable because Parks needed ready access to the
so instruct the jury.                                                 stash, and Murr would not let Parks enter the house
                                                                      without him. At the end of November 1988, Murr told
   In Griffith v. Kentucky, 479 U.S. 314, 328 (1987), the             Parks to bury the cocaine in a pipe on the side of a hill
Supreme Court held that “a new rule for the conduct of                behind Automotive Enterprises. The only person besides
criminal prosecutions is to be applied retroactively to all           Parks who knew exactly where the drugs were hidden
cases, state or federal, pending on direct review or not yet          was Phibbs.
final.” In Teague v. Lane, 489 U.S. 288 (1989), the Court                The drug distribution ring was so successful that Murr
later modified this rule to answer questions of retroactivity for     and Lawson talked about what should be done with the
cases on collateral review. In Teague, the Court stated that          rather substantial profits. Murr recognized that he could
as a general rule, “new constitutional rules of criminal              ‘launder’ some of the funds through his business partner,
procedure will not be applicable to these cases which have            Ernie Nicely. The companies that he had established
become final before the new rules are announced.” Id. at 310.         with Nicely were not doing so well, so Murr began to
The Court then set forth two exceptions to this general rule.         funnel money to him to keep them afloat. Nicely
First, a new rule should apply retroactively if it places “certain    understood that the bulk of this money was derived from
kinds of primary, private individual conduct beyond the               drug sales.
power of the criminal law-making authority to proscribe.” Id.            After November of 1988, Murr no longer wanted to
at 311 (citation and internal quotation marks omitted).               accompany Parks and McKeehan to Kentucky to obtain
Second, a new rule should apply retroactively if it requires the      cocaine. Consequently, he sent the two of them alone to
observance of “those procedures that are implicit in the              complete deals in February, March, April, and May of
concept of ordered liberty.” Id. (citation and internal               1989. . . .
quotation marks omitted). Hence, the central issue of whether            [O]n May 22, 1989, the Knoxville police arrested
retroactivity applies is whether Teague applies. Teague only          Parks for burglary. He was wounded while in the process
applies if the new case for which retroactive effect is sought        of being apprehended. The authorities subsequently
announces a procedural rule; if the new case announces a              seized a set of electronic scales and six address books
substantive rule, Teague does not apply. See Bousley v.               from him. One of these books contained Parks’ drug-
United States, 118 S. Ct. 1604, 1609 (1998).                          related activities that month, and included a coded list of
                                                                      some of Murr’s customers, as well as a description of the
   Richardson involves the issue of jury unanimity. There, the        drug ring’s cocaine inventory.
Court determined that a jury must unanimously agree not only             Despite Parks’ arrest, the drug ring continued to
that the defendant committed some “continuing series of               operate. Jim Hurt soon took over some of Parks’
violations,” but also about which specific “violations” make          functions, delivering cocaine for Murr to Edward Rogers,
up that “continuing series.” Richardson, 119 S. Ct. at 1713.          and possibly others. However, when Rogers complained
To arrive at this holding, the Court interpreted 21 U.S.C.            about the poor quality of the cocaine that Hurt was
§ 848, the Continuing Criminal Enterprise statute. The Court          selling him, Murr began to personally supply Rogers.
stated that “we must decide whether the statute’s phrase              This continued until August of 1989, when Murr himself
‘series of violations’ refers to one element, namely a ‘series,’      was arrested on federal drug charges. . . .
in respect to which the ‘violations’ constitute the underlying           Murr had entered into a plea agreement with the
brute facts or means, or whether those words create several           government in January of 1990 in the Eastern District of
8      Murr v. United States                        No. 98-6202       No. 98-6202                             Murr v. United States          17

    Tennessee. It was not until Parks had been questioned in            III. Specific Unanimity Jury Instruction / Retroactive
    late February of 1990 that the government became aware                   Application of Richardson.
    of Murr’s cocaine venture extending into Kentucky.
                                                                        The district court’s failure to instruct the jurors that they
                        DISCUSSION                                    must unanimously agree about which narcotics violations
                                                                      constitute the “continuing series” of predicate violations for
                      Standard of Review                              continuing criminal enterprise purposes, does not require   that
                                                                      Petitioner’s CCE conviction and sentence be vacated.2
   “In reviewing the denial of a 28 U.S.C. § 2255 petition, this
Court applies a de novo standard of review of the legal issues           In order to sustain a conviction for engaging in a CCE, the
and will uphold the factual findings of the district court unless     government must prove (i) a felony violation of a federal
they are clearly erroneous.” Hilliard v. United States, 157           narcotics law; (ii) as a part of a “continuing series” of at least
F.3d 444, 447 (6th Cir. 1998). Where no evidentiary hearing           three violations; (iii) “in concert with five or more persons”;
is held, the district court’s denial of the motion will be upheld     (iv) for whom the defendant is an organizer, supervisor or
where “the files and records of the case conclusively establish       manager; and (v) from which he derives substantial income or
that the prisoner is entitled to no relief.” 28 U.S.C. § 2255         resources. See 21 U.S.C. § 848(c)(1994). In Richardson v.
(1994); Baker v. United States, 781 F.2d 85, 92 (6th Cir.             United States, 119 S. Ct. 1707, 1713 (1999), the Supreme
1986).                                                                Court held for the first time that a jury must unanimously
                                                                      agree on which specific violations constitute the “continuing
    I. Double Jeopardy                                                series” of three or more predicate violations required to prove
                                                                      that a defendant engaged in a CCE. Moreover, the Court held
  Petitioner first argues that his constitutional rights were         that the district court erred by failing to instruct the jurors that
violated because the government knew of the facts underlying          the “violations” are themselves elements of the CCE and,
his subsequent conviction in the Eastern District of Kentucky         therefore, the jury was required to agree unanimously about
before Petitioner was convicted in the Eastern District of            which three (or more) related drug crimes Petitioner
Tennessee. We disagree.                                               committed. Id. On appeal, Petitioner argues that Richardson
  It is well-settled law that failure to raise an argument at trial
or on direct appeal is waived on collateral review under                  2
                                                                            Following oral argument, the Court allowed Petitioner to file a
§ 2255, absent a showing of both cause and actual prejudice.          supplemental brief only on the CCE issue. The government was permitted
United States v. Frady, 456 U.S. 152 , 164-65, 167 (1982).            to respond. On October 22, 1999, Petitioner filed a Supplemental Brief
In this case, Petitioner’s double jeopardy claim has been             and Addendum, in which Petitioner argued that the district court’s order
raised for the first time on collateral review. Petitioner did        denying the § 2255 motion should be reversed because the district court
not present this issue at pretrial, at trial, or on direct appeal.    did not consider that the government allegedly knew all facts forming the
                                                                      basis for the subsequent prosecution in Kentucky before the final
Rather, on direct appeal, Petitioner argued only that his             judgment was entered on the Tennessee charges. Petitioner did not argue
prosecution in the Eastern District of Kentucky violated his          or provide any information regarding the CCE issue. Hence, Petitioner’s
earlier plea agreement in the Eastern District of Tennessee.          supplemental brief and addendum was not submitted in compliance with
Petitioner makes no effort to show cause to excuse this               this Court’s order and we will not consider the arguments raised by
procedural default, nor has he attempted to show that he              Petitioner in his Supplemental Brief. See, e.g., United States v. Universal
                                                                      Management Servs., Inc. Corp., 191 F.3d 750, 759 (6th Cir. 1999) (citing
suffered “actual prejudice” from the alleged error that would         Wright v. Holbrook, 794 F.2d 1152, 1156 (6th Cir. 1986) (refusing to
                                                                      consider argument raised for the first time by plaintiff in reply brief)).
16    Murr v. United States                        No. 98-6202      No. 98-6202                        Murr v. United States        9

   Petitioner has not made the required showing of factually        undermine the entire integrity of the trial, as required under
specific and compelling prejudice as a result of the joint trial.   Frady. Id. at 168-70.
He offers absolutely no evidence in support of his claim that
Lawson’s absence constituted extreme prejudice to him in               Petitioner failed to meet the standards of Frady; he is
that the jury assumed that Lawson’s absence indicated that          therefore barred from raising his double jeopardy claim for
Petitioner was guilty. Indeed, the facts on record indicate         the first time on collateral attack under § 2255. See, e.g.,
otherwise. First, as this Court noted on direct appeal, the         Napier v. United States, 159 F.3d 956 (6th Cir. 1998)
district court issued curative instructions admonishing the jury    (holding that claims raised for the first time on collateral
to disregard Lawson’s absence in determining the guilt or           attack under § 2255 are waived, where petitioner fails to make
innocence of any co-defendant, and instructing the jury to          the required showing of both cause and actual prejudice for
consider only the evidence against each particular defendant        his failure to raise these claims earlier); see also United States
in determining his or her guilt or innocence. See Zafiro, 506       v. Branham, 97 F.3d 835, 842 (6th Cir. 1996) (noting that
U.S. at 539 (stating that while separate trials may be              “[t]he defense of double jeopardy is personal and is capable
necessary if the risk of prejudice is high, “less drastic           of waiver”).
measures, such as limiting instructions, often will suffice to
cure any risk of prejudice”); United States v. Mays, 69 F.3d           In any event, Petitioner’s double jeopardy argument also
116, 120 (6th Cir. 1995) (holding that threat of “spillover         fails on the merits. The Double Jeopardy Clause provides
evidence” did not require severance where the district court        that no person shall “be subject for the same offense to be
instructed the jury to consider the culpability of each             twice put in jeopardy of life or limb.” U.S. CONST. amend. V.
defendant separately).                                              Double jeopardy protection “applies both to successive
                                                                    punishments and to successive prosecutions for the same
  Second, also noted on direct appeal, the jury acquitted co-       criminal offense.” United States v. Dixon, 509 U.S. 688, 696
defendant William Baird, a close friend and business                (1993). In determining whether a defendant has been
associate of Lawson, although charged in multiple counts            subjected to successive prosecutions for the same offense, this
along with Lawson. This strongly suggests that the jury made        Court applies the “same elements” test originally set forth in
the required individualized determination of each defendant’s       Blockburger v. United States, 284 U.S. 299 (1932). “That test
guilt, without allowing Lawson’s absence to prejudice his co-       asks whether each offense contains an element not contained
defendants. See, e.g., United States v. Rugiero, 20 F.3d 1387,      in the other. A defendant will be considered placed in double
1391 (6th Cir. 1994) (stating that the jury’s acquittal of some     jeopardy only if ‘every violation of one statute entails a
co-conspirators while others were convicted demonstrated            violation of another.’” United States v. Forman, 180 F.3d
that the jury was able to consider the evidence and charges         766 (6th Cir. 1999) (citation omitted) (holding that a
against each defendant individually).                               defendant previously acquitted of obstruction of justice and
                                                                    criminal contempt could be subsequently tried for theft of
  Accordingly, the district court properly denied Petitioner’s      government property and conversion, even though both
§ 2255 motion upon finding that Petitioner was not entitled to      prosecutions arose from the same underlying conduct).
severance from co-defendant Kenneth Lawson for purposes
of trial, even though Lawson was tried in absentia.                   Petitioner urges this Court to follow Rashad v. Burt, 108
                                                                    F.3d 677 (6th Cir. 1997), cert. denied, 522 U.S. 1075 (1998).
                                                                    In Rashad, the arresting officers discovered cocaine in the
                                                                    defendant’s house and car. As a result, the defendant was
10   Murr v. United States                        No. 98-6202      No. 98-6202                        Murr v. United States      15

tried separately for the cocaine found in the different               Second, Crosby does not alter the conclusion this Court
locations. Rashad, 108 F.3d at 679. This Court, applying the       reached on direct appeal. Crosby does not directly apply to
“same evidence” test, held that the state violated defendant’s     Petitioner because Petitioner was present at trial; nor can
double jeopardy rights. Id. at 680. However, the Forman            Petitioner claim that his trial was tainted by an error of
Court recently held that Rashad was limited to its unique          constitutional dimensions because Crosby held only that a
facts, in that “the issue . . . was whether the defendant had      trial in absentia is prohibited by Federal Rule of Criminal
committed one as opposed to two discrete violations of the         Procedure 43. The Crosby Court did not address whether a
same statute, not whether the defendant was charged twice for      trial in absentia is also prohibited by the Constitution.
the same violation.” Forman, 180 F.3d at 769. In light of the      Further, Petitioner cannot point to authority holding that
Supreme Court’s express rejection of the “same evidence”           violation of a co-defendant’s rights under the Federal Rules
test in Dixon, this Court held that Rashad “is to be limited in    of Criminal Procedure constitutes a violation of Petitioner’s
its application to circumstances such as were present in the       constitutional rights.
case.” Id. at 770.
                                                                      Accordingly, we see no reason to depart from this Court’s
  The circumstances here are distinguishable, given that the       earlier conclusion that severance was not required. “As a
two indictments charge different violations on different days,     general rule, persons jointly indicted should be tried
in different places, which involve different people.               together.” United States v. Stull, 743 F.2d 439, 446 (6th Cir.
Comparison of the charges in the two prosecutions reveals no       1984). Further, “[t]he jury must be presumed capable of
double jeopardy violation. Both the offenses charged as well       sorting out the evidence and considering the cases of each
as the underlying conduct that gave rise to the two separate       defendant separately.” United States v. Welch, 97 F.3d 142,
prosecutions are distinct. Petitioner’s conviction in the          147 (6th Cir. 1996); United States v. Moore, 917 F.2d 215,
Eastern District of Tennessee arose out of Petitioner’s sale of    222 (6th Cir. 1990). The district court should grant severance
cocaine to an individual named Bobby Freeman on two                to properly joined defendants “only if there is a serious risk
specific occasions (July 4, 1989, and August 17, 1989) in          that a joint trial would compromise a specific trial right of one
Tennessee. Accordingly, the government needed only to              of the defendants, or prevent the jury from making a reliable
prove that Petitioner knowingly or intentionally distributed       judgment about guilt or innocence.” Zafiro v. United States,
cocaine to Bobby Freeman in Tennessee on those two specific        506 U.S. 534, 539 (1993); United States v. Long, 190 F.3d
dates.                                                             471, 476 (6th Cir. 1999). Lastly, the defendant bears the
                                                                   burden of producing “a strong showing of factually specific
  Petitioner’s conviction in the Eastern District of Kentucky,     and compelling prejudice” that will “mislead or confuse the
on the other hand, arose out of his role in obtaining cocaine in   jury.” Moore, 917 F.2d at 221; United States v. Davis, 177
Lexington, Kentucky, between August 1988 and May 1989,             F.3d 552, 558 (6th Cir. 1999) (stating that “a defendant
with the intent to subsequently distribute the cocaine he          seeking severance at trial from co-defendants bears a strong
acquired. As noted, he was charged with a conspiracy count,        burden and must demonstrate substantial, undue, or
a CCE count, and eleven narcotics trafficking counts alleging      compelling prejudice”). If the defendant is “able to show
cocaine possession in Lexington with the intent to distribute.     some potential jury confusion, such confusion must be
Evidence at the Kentucky trial established that Petitioner         balanced against society’s interest in speedy and efficient
made or directed several trips into the Lexington area with his    trials.” Moore, 917 F.2d at 221.
co-conspirator, Jerry Parks, to buy cocaine from co-
defendants Victor Rojas and Kenneth Lawson, which
14    Murr v. United States                        No. 98-6202      No. 98-6202                       Murr v. United States      11

  instruction that each defendant’s case was to be                  Petitioner intended to later sell to his own customers. This
  considered separately and, further, that Lawson’s flight          conduct gave rise to the eleven substantive cocaine offenses
  could not be used as evidence against anyone but him.             charged in the Eastern District of Kentucky indictment:
  The jury appears to have heeded the court’s admonition,           possession of cocaine with the intent to distribute.
  as defendant William Baird, allegedly a close companion
  of Lawson’s, was acquitted of conspiracy. Other                     Further, there is no double jeopardy problem under
  defendants were acquitted of some of the distribution             Blockburger. Petitioner’s violation of federal drug laws in
  counts brought against them. Thus, the jury was plainly           Kentucky were distinct from his criminal acts in Tennessee.
  able to view them as distinct individuals in rendering its        A jury could find that Petitioner distributed cocaine to Bobby
  verdicts. As this was so, the district court did not abuse        Freeman on July 4 and August 18, 1989, in Tennessee, and
  its discretion in denying the motion to sever Lawson.             not find that he repeatedly possessed cocaine in Lexington
                                                                    with intent to distribute, as alleged in the Kentucky
Phibbs, 999 F.2d at 1067-68.                                        indictment. Similarly, a jury could easily find that Petitioner
                                                                    committed the substantive narcotics violations in Kentucky
   On collateral attack, Petitioner urges this Court to             without having sold cocaine to Bobby Freeman in Tennessee,
reconsider this conclusion in light of the Supreme Court’s          as alleged in the Tennessee indictment. Whereas the offenses
decision in Crosby v. United States, 506 U.S. 255 (1993). In        charged had different elements and arose out of separate
Crosby, the Court held that Federal Rule of Criminal                conduct, conviction in one case simply would not require
Procedure 43 prohibits the trial in absentia of a defendant who     conviction in the other. As Magistrate Judge James B. Todd
is not present at the beginning of trial. Crosby, 506 U.S. at       concluded in his Report and Recommendation:
753. Petitioner argues that because Lawson’s rights under the
Federal Rules of Criminal Procedure were violated by his trial        Here, the two indictments charge different violations on
in absentia, Lawson’s case could not be tried. If, as Petitioner      different days, in different places, which involve different
claims, Lawson’s case could not be tried, Petitioner contends         people. The simple fact that all of the charges against
that his case, in turn, could not be properly joined with an un-      Murr involve cocaine does not automatically invoke a
triable case.                                                         threat of double jeopardy. The Tennessee [distribution]
                                                                      convictions and the Kentucky possession with intent to
   First, we note that on the issue of absentia, Petitioner does      distribute convictions (counts 2 through 9 and 11) clearly
not seek to assert the rights of Lawson. Rather, Petitioner           involve distinctive transactions and conduct which are all
takes the position that his own entitlement to a fair trial was       violative of federal laws. Therefore, the Kentucky
denied by the adverse effect of co-defendant Lawson’s                 convictions for possession with intent to distribute do not
absence. Therefore, Petitioner has standing to raise the              pose any threat to the Defendant’s privilege against
absentia issue. See United States v. Edmonson, 962 F.2d               double jeopardy.
1535, 1544 n.1 (10th Cir. 1992); United States v. Candoli,
870 F.2d 496, 501 (9th Cir. 1989) (stating that while               (J.A. at 171-72.)
defendant could not challenge the propriety of a jury
instruction regarding the flight of her co-defendant, she could       Lastly, we note that Petitioner’s CCE conviction in the
challenge it on the ground that it prejudiced her right to a fair   Eastern District of Kentucky following his Tennessee
trial).                                                             conviction on cocaine distribution charges, did not violate
                                                                    double jeopardy principles, even if his cocaine sales to Bobby
                                                                    Freeman were part of the wide-ranging conspiracy alleged in
12   Murr v. United States                        No. 98-6202      No. 98-6202                              Murr v. United States           13

Counts 1 and 13 of the Kentucky indictment. “A substantive         fundamentally unfair because he was prejudiced by Lawson’s
crime and a conspiracy to commit that crime are not the ‘same      absence. We disagree.1
offense’ for purposes of double jeopardy, even if based upon
the same underlying indictments, ‘because the essence of a           This Court rejected the same argument on direct appeal
conspiracy offense is in the agreement or confederation to         when it was raised by co-defendant Diane Whited, and instead
commit a crime.’” United States v. Medina, 992 F.2d 573,           concluded that the district court did not abuse its discretion in
588 (6th Cir. 1993) (quoting United States v. Felix, 503 U.S.      denying the severance motion:
378, 389-90 (1992)). In Felix, the Supreme Court held that
the defendant’s conspiracy conviction did not violate his            In the instant case, a large portion of the evidence
double jeopardy rights even though he had already been               presented, including that related to Lawson, was
prosecuted for two of the predicate acts supporting the              applicable to each defendant to show the scope of the
conspiracy charge. Felix, 503 U.S. at 391-92.                        charged conspiracy. While Lawson was not there to
                                                                     “challenge” his alleged participation at trial, his co-
  We believe the same holds true here. Since Petitioner’s            defendants had the opportunity to convince the jury that
CCE conviction required proof of various elements entirely           they were not associated with him.
absent from the cocaine distribution offenses alleged in the
Eastern District of Tennessee indictment, there is no double         The fact that a defendant sought to escape prosecution is
jeopardy violation. See Garrett v. United States, 471 U.S.           usually relevant in establishing culpability, so we
773, 779 (1985) (stating that “Congress intended the CCE             understand Whited’s anxiety about “transferred guilt”
provision to be a separate criminal offense which was                due to Lawson’s flight. However, the district court
punishable in addition to, and not as a substitute for, the          neutralized any adversity Lawson may have caused his
predicate offenses”); United States v. Smith, 963 F.2d 892,          co-defendants by his actions. It gave a cautionary
894 (6th Cir. 1992) (holding that the defendant’s conviction
on a marijuana charge did not violate double jeopardy
principles, even though that charge had been one of the                1
predicate acts identified under the CCE charge of which he                Before moving to the merits, we note that Petitioner’s argument may
                                                                   be procedurally barred. Petitioner did not raise this claim in his initial
had previously been convicted). Accordingly, the district          § 2255 motion. Rather, it was first raised in his supplemental objections
court properly denied Petitioner’s § 2255 motion upon finding      to the magistrate judge’s final Report and Recommendation. The
that his double jeopardy rights were not violated by his CCE       magistrate thus never had the opportunity to consider this issue. Courts
and cocaine possession with intent to distribute convictions in    have held that while the Magistrate Judge Act, 28 U.S.C. § 631 et seq.,
Kentucky following his conviction on two cocaine                   permits de novo review by the district court if timely objections are filed,
distribution counts in Tennessee.                                  absent compelling reasons, it does not allow parties to raise at the district
                                                                   court stage new arguments or issues that were not presented to the
                                                                   magistrate. See United States v. Waters, 158 F.3d 933, 936 (6th Cir.
  II. Severance from co-defendant Kenneth Lawson for               1998) (citing Marshall v. Chater, 75 F.3d 1421, 1426-27 (10th Cir. 1996)
      purposes of trial.                                           (“issues raised for the first time in objections to magistrate judge’s report
                                                                   and recommendation are deemed waived”)); see also Cupit v. Whitley, 28
  Petitioner contends that the district court’s refusal to grant   F.3d 532, 535 (5th Cir. 1994); Paterson-Leitch Co., Inc. v. Massachusetts
his motion to sever Lawson’s case rendered his trial               Mun. Wholesale Elec. Co., 840 F.2d 985, 990-91 (1st Cir. 1988); Anna
                                                                   Ready Mix, Inc. v. N.E. Pierson Constr. Co., Inc., 747 F. Supp. 1299,
                                                                   1302-03 (S.D. Ill. 1990). Hence, Petitioner’s failure to raise this claim
                                                                   before the magistrate constitutes waiver. Nonetheless, Petitioner’s claim
                                                                   fails on the merits.
