                 NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                            File Name: 13a0305n.06

                                           No. 12-3162                                 FILED
                                                                                    Mar 27, 2013
                           UNITED STATES COURT OF APPEALS                    DEBORAH S. HUNT, Clerk
                                FOR THE SIXTH CIRCUIT


   UNITED STATES OF AMERICA                                 )
                                                            )
             Plaintiff-Appellee,                            )        ON APPEAL FROM THE
                                                            )        UNITED STATES DISTRICT
                    v.                                      )        COURT FOR THE
                                                            )        SOUTHERN DISTRICT OF
   SEAN D. MURPHY,                                          )        OHIO
                                                            )
             Defendant-Appellant.                           )
                                                            )



   BEFORE: COOK, WHITE, and DONALD, Circuit Judges.

          HELENE N. WHITE, Circuit Judge. Defendant-Appellant Sean D. Murphy (“Murphy”)

was convicted by a jury of one count of conspiracy to transport merchandise and money in interstate

commerce, 18 U.S.C. § 371, one count of transporting merchandise and money in interstate

commerce, 18 U.S.C. §§ 2314, 2, and two counts of traveling in interstate commerce with the intent

to further promote an unlawful activity, 18 U.S.C. §§ 1952, 2. He was sentenced to four consecutive

60-month terms of imprisonment. Murphy appeals, asserting government misconduct, evidentiary

error, and sentencing error. Because the government concedes that counts two and three of the

indictment were insufficient, we DISMISS these counts, VACATE Murphy’s sentence, and

REMAND to the district court for resentencing. We AFFIRM with respect to Murphy’s remaining

claims.
No. 12-3162
United States v. Murphy


                                                  I.

       On January 18, 2009, police investigated a burglary and fire at a Brink’s secure warehouse

in Columbus, Ohio. Police found that the door to a Brink’s vault had been cut through with a torch.

The interior of the vault was on fire and the area was filled with smoke. Four holes were cut into

the roof of the warehouse and there were footprints leading down the walls to the floor of the

warehouse. An exterior door of the warehouse was sealed with epoxy and surveillance equipment

was either destroyed or missing. The vault contained approximately $92,000,000 on the night of the

heist, and around $396,290 was missing.

       In March 2009, the FBI interviewed David Nassor pursuant to a proffer agreement with

federal and local prosecutors. Nassor told the FBI that he, Murphy, Joe Morgan, and Robert

Doucette burglarized a Brink’s warehouse in Ohio. Police arrested Morgan in early April, and FBI

Special Agent Jason Costello visited Doucette and told him that he was a suspect in the Ohio Brink’s

burglary. Doucette retained a lawyer and began cooperating with the FBI. He described the

circumstances of the heist to the FBI and led them to a storage facility in New Hampshire where the

tools for the heist and the remaining money were stored.

       According to Doucette, Murphy approached him in the fall of 2008 with a proposal to rob

a Brink’s warehouse in Columbus, Ohio. Murphy also engaged Morgan and Nassor in the plan,

although Nassor only assisted in preparation for the heist because of an injury he suffered earlier in

the year.




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United States v. Murphy


         Murphy directed Nassor to pick up a cell-phone jammer, a device that disrupts cellular

communications in a given area, from Memphis, Tennesee. This device was necessary because

Brink’s had an alarm system that would communicate with its security provider by cellular signal

in the event that the phone lines were cut. Cell-phone jammers are not sold in the United States, and

importing them is prohibited. Murphy obtained a jammer through a British company called Global

Gadget via FedEx. However, customs enforcement agents were intercepting jammers that passed

through FedEx’s Newark hub, necessitating shipment of the jammer to FedEx’s Memphis hub in

order to evade heightened security at Newark. Nassor traveled to Memphis and picked up the

package at his hotel on December 3, 2008.

         Murphy and Morgan also made a trip to Columbus in order to obtain DNA from individuals

in the Columbus area “to keep the crime local.” They brought cigarettes and drinks to a homeless

shelter in the area. When the individuals consumed the cigarettes and beverages, Murphy and

Morgan picked up the cigarette butts and empty drink containers and saved them for the night of the

crime.

         In early January 2009, Murphy rented a moving truck from Newmarket Storage in New

Hampshire. Murphy, Morgan, and Doucette met at Murphy’s Massachusetts warehouse and loaded

the truck with various tools. Murphy and Morgan drove the truck to a storage facility in

Pennsylvania, where they unloaded the tools in preparation for the heist.

         On January 15, 2009, Murphy and Doucette rented a Dodge Journey in Revere,

Massachusetts and picked up a 24-foot box truck in New Hampshire the following day. Murphy,


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No. 12-3162
United States v. Murphy


Doucette, and Morgan drove to Ohio and stayed in a hotel overnight. On January 17, they drove to

the Pennsylvania storage facility to pick up the equipment they had dropped off. Before loading the

equipment, they obscured the license plate and numbers on the truck and backed the truck into the

facility so that individuals in the storage facility office would not be able to see what they were

loading into the truck.

       After loading the truck, Murphy, Doucette, and Morgan drove to Columbus and arrived at

the Brink’s warehouse at approximately 8:00 or 9:00 p.m. They parked the truck at the loading

docks of another business and covered it with a tarp. They changed out of their regular clothes and

into burglary gear selected by Murphy: white clothes underneath a one-piece black jumpsuit with

galoshes over their normal shoes. These clothes were selected so that the crew could easily change

their outward appearances by removing the galoshes and jumpsuits.

       Murphy, Doucette, and Morgan approached the Brink’s warehouse from the rear and cut

through an exterior fence with wire cutters. Murphy and Morgan climbed to the roof using

scaffolding and destroyed a security camera mounted on the side of the building. Doucette stayed

behind at a nearby bridge to keep watch for the police. Murphy activated the cell-phone jammer, cut

holes in the roof, and smashed the building’s alarm system.

       Murphy, Doucette, and Morgan entered the warehouse and moved trucks that were blocking

the warehouse’s garage door. Doucette sealed the exterior door with epoxy to keep out any

unexpected Brink’s workers and removed all of Brink’s electronic equipment to insure that no

recordings of the crime would be left.


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No. 12-3162
United States v. Murphy


       Meanwhile, Murphy set up a thermal lance rod, a piece of equipment that burns at

approximately 5,000 degrees and can melt through steel and concrete, and began cutting through the

side of the vault. After several hours of cutting, Murphy gained access to the vault at approximately

6:30 a.m. Unfortunately for Murphy, the heat of the thermal rod ignited the contents of the vault,

and large quantities of smoke quickly filled the room. Murphy, Doucette, and Morgan tried to put

out the fire with fire extinguishers and water, but were unsuccessful. At this point, they took turns

grabbing cash out of the vault.

       Shortly before 9:00 a.m., Murphy, Doucette, and Morgan loaded the truck with their tools

and prepared to leave. Murphy planted the cigarette butts and empty drink containers around the

facility. The three drove to Pennsylvania where they unloaded the tools and coins into the storage

facility. They placed the bills in garbage bags and traveled to Doucette’s home in Massachusetts to

count and divide the money. However, much of the money was burnt, wet, and smelled strongly of

smoke. The next day, Murphy, Morgan, and Doucette washed the salvageable money in Doucette’s

washing machine and dryer to remove the smell of smoke. Any money that was burnt too badly to

be saved was destroyed in Doucette’s fireplace. They continued counting the money over the next

few days.

       Murphy began cooperating with the police near the end of 2009. He participated in four

proffer sessions with the FBI, and provided details regarding his involvement in the Brink’s heist

during the third. Murphy’s final proffer session was at the beginning of June 2010. The following

month, the Essex County Jail, where Murphy was housed, conducted a contraband search and found


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No. 12-3162
United States v. Murphy


a book entitled “Master Thief: How to Be a Professional Burglar” by Sean Murphy in the possession

of an inmate. In his book, Murphy described methods for committing burglary that largely mirrored

the Brink’s heist. For example, Murphy advised his readers to use a cell-phone jammer, to wear

black jumpsuits over light clothes to avoid detection, to use storage facilities far from the target of

the heist, and to use a thermal rod to cut through vault doors. Further, Murphy advised readers to

“[b]e extremely careful when piercing the last layer of steel on the vault door. If your thermal [rod]

catches something on fire in the vault, everything could burn up; and the smoke could prevent you

from even entering the vault.” Prison officials gave the book to the FBI.

                                                  II.

       A grand jury for the Southern District of Ohio indicted Murphy for conspiracy to transport

merchandise and money in interstate commerce, 18 U.S.C. § 371, traveling in interstate commerce

with the intent to further promote an unlawful activity, 18 U.S.C. §§ 1952, 2, and transporting

merchandise and money in interstate commerce, 18 U.S.C. §§ 2314, 2. The case proceeded to trial

and Murphy decided to represent himself with his court-appointed attorney serving as stand-by

counsel. The court warned Murphy of the risks of self-representation and encouraged Murphy to

reconsider, but he refused. Murphy’s co-conspirators, Nassor and Doucette, testified against him

pursuant to plea agreements with the government. After a five-day trial, the jury found Murphy

guilty on all counts. After reviewing Murphy’s offense conduct, personal history, and hearing

testimony from FBI Agent Jason Costello regarding Murphy’s cooperation with the government, the

court sentenced Murphy to four consecutive terms of 60 months’ imprisonment.


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No. 12-3162
United States v. Murphy


                                                 III.

       On appeal, Murphy argues that the district court erred by denying his motion to dismiss

counts two and three of the indictment, that the prosecutor’s alleged misconduct should result in a

mistrial, that the government did not disclose exculpatory evidence, that the district court erred by

admitting Murphy’s book into evidence, and that the district court erred in its finding of intended

loss and sophisticated means at sentencing.

A. Governmental Misconduct

       1. Insufficiency of the Indictment

       Murphy challenges the district court’s refusal to dismiss counts two and three of the

indictment for failing to state an offense. Although the government opposed Murphy’s motion

before the district court, it now concedes the issue.

       At sentencing, the court noted that the PSR recommended a sentence of 300 months’

imprisonment. However, after considering Murphy’s 18 U.S.C. § 3553(a) arguments, and taking

into account time that Murphy had served in state custody since his indictment, the court decided to

reduce the recommended sentence of 300 months to a total of 240 months. The court split this

period of imprisonment into four 60-month terms of imprisonment on each of the four counts of

conviction, to be served consecutively to one another for a total 240-month term of imprisonment,

thereby suggesting that the court viewed the sentences as interdependent with one another. See

United States v. Faulkenberry, 614 F.3d 573, 590–91 (6th Cir. 2010); United States v. Clements, 86




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No. 12-3162
United States v. Murphy


F.3d 599, 600–01 (6th Cir. 1996). Accordingly, we vacate Murphy’s sentence and remand to the

district court for resentencing on the two remaining counts.

        2. Prosecutorial Misconduct

        Murphy argues that the government violated his rights under the Fifth Amendment by

referring to the fact that he did not testify during trial while objecting to Murphy’s closing argument.

Because Murphy did not object to the prosecutor’s comments at trial, we review his claim for plain

error. United States v. Kuehne, 547 F.3d 667, 687 (6th Cir. 2008).

        This court must first determine whether the prosecutor’s remarks were improper. Id. “If this

Court finds that the prosecutor engaged in improprieties, this Court must then determine whether the

improprieties were flagrant such that a reversal is warranted.” Id. at 687–88. There are four factors

to consider when determining whether a prosecutor’s conduct was flagrant: “1) whether the conduct

and remarks of the prosecutor tended to mislead the jury or prejudice the defendant; 2) whether the

conduct or remarks were isolated or extensive; 3) whether the remarks were deliberately or

accidentally made; and 4) whether the evidence against the defendant was strong.” Id. at 688

(quoting United States v. Modena, 302 F.3d 626, 635 (6th Cir. 2002)) (internal quotation marks

omitted).

        On appeal, Murphy points to a single instance of prosecutorial misconduct. During his

closing arguments, Murphy argued that he owned a security consulting company and that it was a

legitimate business because a bank would not let him open a business account without a tax




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No. 12-3162
United States v. Murphy


identification number. However, these facts were not in evidence because Murphy elected not to

testify. The following exchange occurred:

       The Government: Objection, Your Honor.

       The Court: Sustained.

       The Government: You are testifying. If you want to take the stand, you can testify
       all you want.

Murphy argues that these comments by the government warrant a new trial.

       Prior to Murphy’s closing arguments, the court warned him that he could not comment on

facts that were not in evidence as part of his closing arguments. Murphy did not heed this warning

and shortly into his argument, he began describing how he used to train individuals to use cell-phone

jammers. The government objected and the court sustained the objection. Murphy resumed his

argument and began to describe how he had to test the cell-phone jammer once it was obtained. The

government objected and the court admonished Murphy that he was not allowed to testify via his

closing argument and that he could only comment on evidence and explain what it meant. The court

sustained three similar objections before the exchange that Murphy cites on appeal. After the

government’s comments, the court sustained three more objections, noting: “We have gone over this

before.” Following a sidebar, the court instructed the jury that Murphy had the right not to testify,

and that comments made during a closing argument are not evidence.

       This court confronted a similar issue in United States v. McCaskill, 202 F. App’x 70 (6th Cir.

2006) (unpublished). In McCaskill, the defendant chose to represent himself and elected not to

testify at his trial. Id. at 73–74. When McCaskill repeatedly made factual assertions during his

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United States v. Murphy


closing argument, the prosecutor objected: “Maybe if Mr. McCaskill would like to be put under

oath.” Id. at 74 (internal quotation marks omitted). This court rejected McCaskill’s claim of error

and found that it was “abundantly clear that the prosecutor’s isolated remark about McCaskill’s

being ‘put under oath’ was made in response to McCaskill’s repeated attempt to argue facts to the

jury that were not introduced into evidence at trial.” Id.

        Similarly, Murphy challenges a single instance of alleged prosecutorial misconduct during

his closing arguments. Although the prosecutor should not have commented on Murphy’s failure

to testify, see Byrd v. Collins, 209 F.3d 486, 533 (6th Cir. 2000), this error was not flagrant and does

not warrant reversal. Further, the judge gave a curative instruction cautioning the jury that Murphy

had the right not to testify at his trial. Numerous witnesses testified against Murphy, including two

of his co-conspirators, thereby providing the government with strong evidence of his guilt. We

therefore reject Murphy’s claim of prosecutorial misconduct.

        3. Exculpatory Evidence

        Murphy argues that the government violated Brady v. Maryland, 373 U.S. 83 (1963), by

failing to produce the following pieces of exculpatory evidence: (1) the recorded statement of Robert

Doucette, (2) video taken from a neighboring business’s security camera the night of the heist, (3)

a picture of a smaller hole in the side of the Brink’s vault, before the fire department enlarged the

hole, and (4) information regarding DNA test results obtained from the cigarette butts and empty

drink containers discovered at the scene of the heist.




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United States v. Murphy


       “[T]he suppression . . . of evidence favorable to an accused upon request violates due process

where the evidence is material either to guilt or to punishment.” Brady, 373 U.S. at 87. “Brady

also applies to the nondisclosure of evidence affecting the credibility of a witness whose

‘reliability . . . may . . . be determinative of guilt or innocence.’” United States v. Blood, 435 F.3d

612, 627 (6th Cir. 2006) (quoting Giglio v. United States, 405 U.S. 150, 153–54 (1972)). Reversal

is required only “where there is a reasonable probability that, had the evidence been disclosed, the

result of the trial would have been different.” United States v. Bencs, 28 F.3d 555, 560 (6th Cir.

1994). Because Murphy did not object to these issues below, we review his claims for plain error.

Blood, 435 F.3d at 627–28.

       Murphy argues that the government violated Brady by not turning over a video-taped

statement of Doucette, the only witness who testified that Murphy was at the scene of the heist.

Murphy does not explain why the video-taped statement of Doucette would have been exculpatory

or changed the outcome of the trial. Murphy cross-examined Doucette extensively over two days

on a wide range of topics, including his proffer with Agent Costello. Given the substantial evidence

presented against Murphy, it is unlikely that production of Doucette’s taped statement would have

altered the outcome of the trial.

       Murphy also argues that a video from a business neighboring the Brink’s facility was not

provided to him. Again, Murphy does not explain how this video would have been exculpatory or

why it would have changed the outcome of the trial. Doucette testified that Murphy and his co-

conspirators covered the truck with a large tarp prior to pulling up to the Brink’s warehouse, with


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No. 12-3162
United States v. Murphy


only a small hole cut in the front of the cover for the driver to see the road. It is therefore unlikely

that a security video from a nearby business would have revealed information exonerating Murphy.

       Murphy contends that the government should have disclosed pictures of a smaller hole in the

Brink’s vault, rather than pictures of the vault with a larger hole in the side created after the fire

department enlarged the hole to put out the fire. Murphy argues that a picture of the smaller hole

would have allowed him to establish that the intended loss was less than the $92,000,000 that was

in the vault at the time of the robbery. However, Murphy made this argument at his sentencing and

the court acknowledged it, reducing the intended loss by half from $92,000,000 to $46,000,000.

Thus, no error was committed.

       Lastly, Murphy argues that information regarding another individual’s DNA found at the

scene of the crime was disclosed to him on the day of the trial, thereby prejudicing his case as he was

unable to fully investigate the individual identified by the DNA. “Brady generally does not apply

to delayed disclosure of exculpatory information, but only to a complete failure to disclose,” and a

“[d]elay only violates Brady when the delay itself causes prejudice.” Bencs, 28 F.3d at 560–61

(citations and internal quotation marks omitted). The DNA discovered on one cigarette butt found

at the crime scene matched the DNA of a homeless individual named Anthony L. Woods. This

match was discovered a few weeks before Murphy’s trial and was promptly disclosed to Murphy.

Because the information regarding Woods was promptly disclosed to Murphy before his trial, no

Brady violation occurred.




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No. 12-3162
United States v. Murphy


        Murphy has not demonstrated that any of the information he seeks would have changed the

outcome of his trial given the substantial evidence against him. For this reason, we deny Murphy’s

Brady claims.

B. Evidentiary Error

        Murphy challenges the admission into evidence of his book, “Master Thief: How to Be a

Professional Burglar,” arguing that it had a prejudicial effect on the jury and the court failed to

balance the prejudicial nature of the book against its probative value. At trial, Murphy objected to

the admission of the book, claiming that it was part of his proffer to the government. After hearing

evidence from both parties, the court ruled that the book was not part of Murphy’s proffer and would

be admitted.

        Because Murphy did not object to the admission of the book on the grounds he now raises

on appeal, the plain-error standard applies. United States v. Demjanjuk, 367 F.3d 623, 629 (6th Cir.

2004). Under the plain-error standard, there must be “(1) error, (2) that is plain . . . (3) that affects

substantial rights . . . [and that] (4) . . . seriously affects the fairness, integrity, or public reputation

of judicial proceedings.” Id. (quoting Johnson v. United States, 520 U.S. 461, 466–67 (1997))

(internal brackets omitted).

        Murphy’s book plainly has probative value. It recommends that readers follow substantially

the same steps that Murphy took when committing the Brink’s heist, including advice on how to

obtain and use a cell-phone jammer and a warning that users should be careful not to ignite the

contents of the vault when using a thermal lance. Murphy suggests that the book could have been


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No. 12-3162
United States v. Murphy


viewed by the jury as an admission that he committed similar burglaries in the past, and that the

court should have warned the jury to avoid drawing inferences about Murphy’s character and

criminal past. However, Murphy did not request such an instruction at trial or notify the court that

he was concerned that the book’s prejudicial character might outweigh its probative value. We reject

Murphy’s claim.

C. Sentencing Error

       Murphy argues that the district court erred by reducing the intended loss of his offense from

$92,000,000 to $46,000,000, and no further, because the court held his co-conspirators accountable

for only $2,500,000. We review a district court’s amount-of-loss finding for clear error. United

States v. Poulsen, 655 F.3d 492, 512 (6th Cir. 2011). “Intended loss” is defined as: “pecuniary harm

that was intended to result from the offense,” which includes “pecuniary harm that would have been

impossible or unlikely to occur.” U.S.S.G. § 2B1.1 cmt. n.3(A)(ii). The district court heard

undisputed evidence that the Brink’s vault contained $92,000,000 at the time of the heist. However,

given that the typical amount of money in the vault was approximately $50,000,000, the district court

decided to reduce the intended-loss finding to $46,000,000. The court did not clearly err by finding

that the intended loss was half the amount actually contained in the vault.

       Murphy also argues that the district court abused its discretion by applying the “sophisticated

means” enhancement to his sentence. See U.S.S.G. § 2B1.1 cmt. n.8. Murphy acknowledges that

the sophisticated-means enhancement applies to him, but asserts that because Morgan and Doucette

did not receive the enhancement, its application to him is not fair. Application of the sophisticated-


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United States v. Murphy


means enhancement presents a question of fact and is reviewed for clear error. United States v.

Middleton, 246 F.3d 825, 847–48 (6th Cir. 2001). Murphy objected to the sophisticated-means

enhancement on fairness grounds and the court overruled his objection, explaining that the offenses

involved substantial planning and that Murphy was the “mastermind” behind the burglary. The

district court did not clearly err by applying the enhancement to Murphy based on his role in the

offense.

                                               IV.

       For the foregoing reasons, we DISMISS counts two and three of the indictment, VACATE

Murphy’s sentence, and REMAND to the district court for resentencing. We AFFIRM with respect

to Murphy’s remaining claims.




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