636 F. App'x 250
6th Cir.2016Background
- Herrera was convicted by jury of conspiracy to possess and distribute at least five kilograms of cocaine and of traveling in interstate commerce with intent to conduct racketeering; district court imposed 240 months and 60 months, concurrent, plus 30 months for supervised-release violation to be served consecutively.
- Surveillance and raid occurred at a co-conspirator’s father’s home in Ohio; officers seized cocaine from a bag during a search conducted under a warrant for drug-related documents.
- Herrera challenged the search on standing and scope, and the district court ruled he lacked standing but found the search within the warrant’s scope.
- District court rejected Herrera’s motion to substitute counsel after three hearings, finding counsel adequate and disagreements about strategy.
- Juror 27, an alternate, disclosed prior interactions with officers and a co-defendant’s casino visit; court found no prejudice and seated the juror as an alternate.
- Prosecutor’s questions to witnesses about potential perjury were challenged as misconduct, but the court allowed them and found no plain error; Herrera also challenged the consecutive sentence.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Suppress motion—scope and standing | Herrera lacks standing; search exceeded scope | Search violated Fourth Amendment | No reversible error; search within warrant and plain view seized cocaine |
| Substitute counsel | District court abused discretion denying substitution | Counsel had irreconcilable conflicts | No abuse of discretion; three-factor analysis supports denial |
| Juror impartiality | Juror 27 was biased and should have been removed | Alternate juror seated without prejudice | No plain error; juror seated as alternate did not affect verdict |
| Prosecutorial misconduct—perjury questions | Questions improper and prejudicial | Questions proper to address credibility concerns | Not plain error; questions within proper redirect/credibility context |
| Consecutive sentence | Consecutive term for supervised-release violation improper | District court properly imposed consecutive sentence under 18 U.S.C. § 3584(b) with 3553(a) factors | No reversible error; consecutive sentence supported by rationale and statutory factors |
Key Cases Cited
- United States v. Williams, 354 F.3d 497 (6th Cir. 2003) (Fourth Amendment standing and related standards)
- United States v. Ross, 456 U.S. 798 (S. Ct. 1982) (Search extends to entire area where object may be found)
- United States v. Garcia, 496 F.3d 505 (6th Cir. 2007) (Plain view and scope of warrant concepts)
- Minnesota v. Dickerson, 508 U.S. 366 (S. Ct. 1993) (Plain view discovery admissibility)
- United States v. Blakeney, 942 F.2d 1001 (6th Cir. 1991) (Documents discovered during search admissible under plain view)
- Illinois v. Gates, 462 U.S. 213 (S. Ct. 1983) (Totality-of-the-circumstances reasonable probability of contraband)
- United States v. Archibald, 685 F.3d 553 (6th Cir. 2012) (Probable cause at time of warrant execution must exist)
- United States v. Henry, 545 F.3d 367 (6th Cir. 2008) (Government may address credibility after attack on witness)
- Skilling v. United States, 561 U.S. 358 (2010) (Jury-impartiality and defendant’s failure to object evidence supports not biased)
- Murphy v. Florida, 421 U.S. 794 (1975) (Jury impartiality standard—impartial juror need not be ignorant of facts)
- United States v. Vasquez, 560 F.3d 461 (6th Cir. 2009) (Abuse-of-discretion standard for substitution of counsel)
- United States v. Marrero, 651 F.3d 453 (6th Cir. 2011) (Substitution would impede justice when misunderstandings of law dominate)
- United States v. Whitfield, 259 F. App’x 830 (6th Cir. 2008) (Last-minute substitution risks continuance; deference to judge)
- United States v. Cochrane, 702 F.3d 334 (6th Cir. 2012) (Distinguishable; district court provided rationale for consecutive sentence)
- United States v. Johnson, 640 F.3d 195 (6th Cir. 2011) (Consecutive-sentence authority under 18 U.S.C. § 3584(b) and factors)
- United States v. Owens, 159 F.3d 221 (6th Cir. 1998) (Reasonableness of incremental penalty for offenses)
- United States v. Morgan, 687 F.3d 688 (6th Cir. 2012) (Plain-error review for sentencing)
- United States v. Henry, 545 F.3d 367 (6th Cir. 2008) (Redirect/credibility evidence during cross-examination)