                                                            NOT PRECEDENTIAL

                    UNITED STATES COURT OF APPEALS
                         FOR THE THIRD CIRCUIT
                             _______________

                            Nos. 10-2896 & 10-2897
                              _______________

                        UNITED STATES OF AMERICA

                                       v.

                               JAMES MURPHY,
                              a/k/a Jimmy Murphy,
                                   a/k/a Black

                                         James Murphy,
                                               Appellant
                               _______________

                  On Appeal from the United States District Court
                      For the Middle District of Pennsylvania
        (D.C. Criminal Action Nos. 1-08-cr-00433-001 / 1-10-mc-00168-001)
                  District Judge: Honorable William W. Caldwell
                                 _______________

                    Submitted Under Third Circuit LAR 34.1(a)
                                January 23, 2012
                               _______________

         Before: AMBRO, CHAGARES and HARDIMAN, Circuit Judges

                        (Opinion filed: February 6, 2012)
                               _______________

                                  OPINION
                               _______________

AMBRO, Circuit Judge




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      Following a two-day jury trial, Appellant James Murphy was found guilty of one

count of distribution and possession with intent to distribute heroin and 50 grams or more

of cocaine base, in violation of 21 U.S.C. §§ 841 and 846, and one count of engaging in a

conspiracy to distribute and possess with intent to distribute heroin and 50 grams or more

of cocaine base, also in violation of 21 U.S.C. §§ 841 and 846. Murphy was sentenced to

360 months‟ imprisonment, and now appeals his conviction and sentence. We affirm.

                                            I.

      Because we write solely for the parties, we recite only those facts necessary for

our decision. In July 2008, the police arrested a drug dealer who informed them that she

had been selling drugs for Murphy off and on for nearly a year, selling approximately

one gram of heroin per day and one ounce of crack cocaine each week. Murphy was

indicted in December 2008. His trial was initially scheduled for March 2009; however,

the trial was continued several times because two separate attorneys withdrew from

representing Murphy and because his trial counsel later sought and obtained multiple

additional continuances.

      The trial ultimately began on July 13, 2009. On that day, Murphy requested that

the District Court issue writs of habeas corpus ad testificandum for two incarcerated

witnesses, Clifton Shields and Richard Byrd. At no time prior to this did Murphy

indicate that he believed that these witnesses were necessary to mount his defense.

      In each motion seeking a writ, Murphy used the same single-line explanation as to

why the two witnesses were needed: “[The requested witness] will testify that the

Defendant in this matter, James Murphy, was not involved in the sale or distribution of

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drugs.” However, during a discussion held on the record, Murphy‟s counsel conceded

that he had conferred with counsel for Shields and Byrd, and been informed that they

would invoke their Fifth Amendment rights and refuse to testify. After conferring with

the United States Marshal‟s Service and learning that the earliest Byrd could be produced

was a week later, and the earliest Shields could be produced was two weeks later, with

neither guaranteed, the District Court denied Murphy‟s motions for writs of habeas

corpus ad testificandum.

       On the first day of trial, the Government called Jesse Hamman, a convicted drug

dealer then facing additional weapon charges, as a witness. Hamman testified as to his

awareness of an individual nicknamed “Black” and his conversations with Murphy, who

was in jail with him at the time. During those conversations, Murphy admitted to being

“Black,” discussed the time “the FBI came up on him in Lewistown,” and identified

another individual who had previously left cocaine in Hamman‟s car. Murphy did not

object to the admission of Hamman‟s testimony.

       On the second day of trial, the Government called Officer Robert Haines, Jr., of

the Mifflin County Regional Police Department. Officer Haines testified regarding a

January 2008 encounter with Murphy and some of Murphy‟s associates that ultimately

led to the discovery of drug distribution paraphernalia in a backpack carried by Murphy

after two of his associates were arrested for having outstanding warrants and after

Murphy voluntarily consented to the search of the bag. Murphy did not object to the

admission of Officer Haines‟ testimony, nor was any suppression motion filed.



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       Following trial, the jury found Murphy guilty of both of the drug charges. As

noted, the District Court sentenced him to 360 months‟ imprisonment.

                                              II.

       In this appeal, Murphy raises three points of error in the District Court‟s handling

of the trial. First, he argues that the Court abused its discretion and violated his Sixth

Amendment right to have compulsory process for obtaining witnesses in his favor by

denying his motions for writs of habeas corpus ad testificandum. Second, Murphy

contends that the District Court committed plain error by admitting the testimony of

Hamman, the claim being that Hamman was a “government informant[ ] who had

deliberately elicited information after [Murphy] had been indicted, in violation of

[Murphy‟s] Sixth Amendment right to counsel.” Third, Murphy asserts that the District

Court committed plain error by admitting Officer Haines‟ testimony regarding the drug

distribution paraphernalia found in Murphy‟s backpack, the search of which Murphy

complains violated his Fourth Amendment rights.

                                             III.

       The District Court had jurisdiction pursuant to 18 U.S.C. § 3231. We have

appellate jurisdiction under 28 U.S.C. § 1291.

       Because Murphy did not object at trial, we review the District Court‟s decision to

admit the testimony of Hamman and Officer Haines for plain error. United States v.

Ward, 626 F.3d 179, 183 (3d Cir. 2010) (“Errors that were not raised before the District

Court are subject to plain error review, meaning that, in order to prevail on appeal, a

defendant must establish an error that is plain, which affected his substantial rights, and

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which, if not rectified, would seriously affect the fairness, integrity or public reputation of

judicial proceedings.”).

                                              IV.

         A.     The Motions For Writs Of Habeas Corpus Ad Testificandum

         The District Court did not abuse its discretion, nor did it violate Murphy‟s Sixth

Amendment rights, by denying the motions for writs of habeas corpus ad testificandum.

         A federal court may, in its discretion, issue such a writ to secure the appearance of

a prisoner as a witness if it is necessary to bring the prisoner into court to testify or for

trial. 28 U.S.C. § 2241(c)(5). A district court‟s decision whether to issue the writ will be

reversed only for an abuse of discretion. Jerry v. Francisco, 632 F.2d 252, 256 (3d Cir.

1980).

         The criminal defendant bears the burden of producing facts that will justify

issuance of a writ of habeas corpus ad testificandum. United States v. Cruz-Jiminez,

977 F.2d 95, 103 (3d Cir. 1992).

                If the accused avers facts which, if true, would be relevant to
                any issue in the case, the requests for [writs] must be granted,
                unless the averments are inherently incredible on their face,
                or unless the Government shows, either by introducing
                evidence or from matters already of record, that the
                averments are untrue or that the request is otherwise
                frivolous.

Id. (quoting United States v. Smith, 924 F.2d 889, 896 (9th Cir. 1991)).

         “[I]t is also appropriate to place the burden of proving the necessity of a witness‟s

testimony on the defendant seeking the writ.” Id. “A defendant‟s failure to carry this



                                               5
burden „is a legitimate basis to deny a request to procure the presence of a witness.‟” Id.

(quoting United States v. Rinchack, 820 F.2d 1557, 1568 (11th Cir. 1987)).

       Here, the District Court had multiple legitimate bases upon which to deny

Murphy‟s motions. As an initial matter, the motions were untimely, as Murphy waited

until the first day of trial—indeed, he waited until after the trial had begun—before

requesting the writs. Rinchack, 820 F.2d at 1568 (“[A] district court may refuse to issue

a writ of habeas corpus ad testificandum solely on the grounds that the petition is

untimely. . . . The trial court in this case had ample grounds to deny Rinchack‟s petition

as untimely[ ] [because he] . . . did not file the request until the trial actually began.”);

ITEL Capital Corp. v. Dennis Mining Supp. & Equip., Inc., 651 F.2d 405, 407-08 (5th

Cir. 1981) (holding that district court did not abuse discretion by denying petition for writ

filed three days before trial); Peppard v. United States, 314 F.2d 623, 625 (8th Cir. 1963)

(holding same for petition filed four days before trial). The District Court properly could

have denied the motions on this basis alone.

       Murphy also failed to satisfy his burden of proving the relevancy and necessity of

Shields‟ and Byrd‟s putative testimony. As a practical matter, Murphy‟s delay in filing

the motions significantly undermines his argument that the proposed witnesses would

have provided relevant and necessary testimony. If Shields‟ and Byrd‟s putative

testimony truly were relevant and necessary to his defense, we presume Murphy would

have moved for the writs much earlier than the first day of trial. Further, Murphy‟s

motions provided exactly one sentence of explanation for why he wished to have Shields

and Byrd produced, and it was the same sentence for both: to repeat, “[The requested

                                                6
witness] will testify that the Defendant in this matter, James Murphy, was not involved in

the sale or distribution of drugs.” Such a conclusory allegation unsupported by any

factual proffer does not satisfy Murphy‟s burden of proof. See Smith, 924 F.2d at 896

(“unsupported and conclusory claims are not sufficient”); Rinchack, 820 F.2d at 1568

(upholding denial of writ where defendant failed to provide an offer of proof); Peppard,

314 F.2d at 625 (holding that district court did not abuse discretion by denying writ

where defendant made no indication of what testimony the witness was expected to

offer); United States v. Rigdon, 459 F.2d 379, 380 (6th Cir. 1972) (no abuse of discretion

for court to deny writ where defendant made insufficient proffer as to content of

witness‟s expected testimony), cert. denied, 409 U.S. 1116 (1973). Moreover, there is

nothing in the record indicating that Shields and Byrd would have provided testimony

favorable to Murphy, as counsel for Murphy conceded he had been informed by the

attorneys for both Shields and Byrd that they were recommending that their clients

invoke their Fifth Amendment rights and refuse to testify at Murphy‟s trial. In this

context, Murphy failed to satisfy his burden of proving the relevancy and necessity of

Shields‟ and Byrd‟s putative testimony.

       Accordingly, the District Court did not abuse its discretion by denying Murphy‟s

motions for writs of habeas corpus ad testificandum.

       B.     Jesse Hamman‟s Testimony

       The District Court did not commit plain error by admitting Hamman‟s testimony.

Murphy contends that this testimony violated his Sixth Amendment right to counsel

because Hamman was a “government informant[ ] who had deliberately elicited

                                             7
information after [Murphy] had been indicted[.]” However, this contention fails outright

because there is absolutely no evidence whatsoever to support a finding that Hamman

was a “government informant.”

       As the Supreme Court has stated, “the Sixth Amendment is not violated

whenever—by luck or happenstance—the State obtains incriminating statements from the

accused after the right to counsel has attached.” Maine v. Moulton, 474 U.S. 159, 176

(1985). For the Sixth Amendment to be violated in the context of a jailhouse informant,

“[a]t a minimum . . . there must be some evidence that an agreement, express or implied,

between the [informant] and a government official existed at the time the elicitation takes

place.” Matteo v. Superintendent, SCI Albion, 171 F.3d 877, 893 (3d Cir. 1999) (citation

and internal quotation marks omitted).

       Murphy has not pointed to any evidence in the record indicating that Hamman

reached an express or implied agreement with the Government prior to his jailhouse

conversation with Murphy. As such, there is nothing even remotely supporting Murphy‟s

claim that his Sixth Amendment right to counsel was violated.

       Accordingly, the District Court did not commit plain error by admitting

Hamman‟s testimony.

       C.     Officer Haines‟ Testimony

       The District Court also did not commit plain error by admitting Officer Haines‟

testimony regarding the contents of Murphy‟s backpack that was searched by Mifflin

County police. Based on the uncontroverted facts of the encounter as described by

Officer Haines—including, most importantly, that two of Murphy‟s associates had

                                             8
outstanding warrants and were suspected drug traffickers, and that Murphy voluntarily

consented to the search of the backpack—it simply cannot be said that admission of

Haines‟ testimony was “clear or obvious” legal error. At the least, the issues of whether

the police officers had probable cause to arrest Murphy and to conduct a search of the

backpack as incident to the arrest, and whether Murphy‟s voluntary consent to search the

backpack was valid, are “subject to reasonable dispute.” See United States v. Marcus,

130 S. Ct. 2159, 2164 (2010) (an error is plain if, among other things, it is “clear or

obvious, rather than subject to reasonable dispute” (citation and internal quotation marks

omitted)).

       As resolution of these questions is anything but “clear or obvious,” see id., the

District Court did not commit plain error by admitting Officer Haines‟ testimony.

                                             V.

       For the reasons stated above, we affirm Murphy‟s conviction and sentence.




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