United States v. Orr, 2011 U.S. App. LEXIS 4044

Orr was convicted on seven counts after a two-day trial for crack cocaine and firearm offenses.
Cohn, Orr’s counsel, moved for a new trial based on alleged ineffective assistance; the district court held an evidentiary hearing.
The district court denied the new-trial motion and Orr was sentenced to life imprisonment for Count 1 and lengthy concurrent terms on other counts.
Orr challenged trial evidentiary rulings and sought retroactive application of the Fair Sentencing Act of 2010.
The court on appeal affirmed the district court’s denial of the new-trial motion and the evidentiary rulings, and rejected retroactivity arguments.
Key factual disputes included Orr’s residence, custodial confession, and impeachment of a key witness.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether counsel’s performance was ineffective under Strickland	Orr argues Cohn failed to object to hearsay, impeach witnesses, suppress the custodial confession, and call Pfaltzgraff	Cohn’s strategic decisions were within the reasonable professional standard	No reversible error; no Strickland prejudice established
Whether counsel’s failure to object to hearsay was ineffective	Failure to object to Mark Anderson’s statements harmed Orr	Not prejudicial given other corroborating evidence	Not prejudicial; district court did not err
Whether cross-examination and impeachment of Christofferson were adequate	Cohn failed to impeach with cooperation agreement and inconsistent statements	Cross-examination was within trial strategy; other evidence corroborated testimony	Not prejudicial; no ineffective assistance based on impeachment approach
Whether Orr’s custodial confession should have been suppressed	Statement should have been suppressed as Miranda violation	Confession was elicited in a non-interrogatory context per Innis; admissible	Not ineffective assistance; confession admissible under Miranda/Innis framework
Whether the Fair Sentencing Act of 2010 applies retroactively	FSA should apply retroactively to Orr’s sentence	Savings statute 1 U.S.C. § 109 blocks retroactive application absent express retroactivity in FSA	Retroactivity denied; FSA not retroactive under savings statute

Strickland v. Washington, 466 U.S. 668 (1984) (two-prong test for ineffective assistance; prejudice required)
United States v. Rice, 449 F.3d 887 (8th Cir. 2006) (review of ineffective-assistance on direct appeal when record is developed)
Driscoll v. Delo, 71 F.3d 701 (8th Cir. 1995) (counsel’s impeachment of key witness; strategic limitations)
Whitfield v. Bowersox, 324 F.3d 1009 (8th Cir. 2003) (ineffective assistance for failing to cross-examine critical testimony when warranted)
United States v. Watkins, 486 F.3d 458 (8th Cir. 2007) (cross-examination strategy; corroborating testimony reduces impact of impeachment)
United States v. Wipf, 397 F.3d 677 (8th Cir. 2005) (interrogation and Miranda-related considerations clarifications)
Parish v. United States, 606 F.3d 480 (8th Cir. 2010) (hearsay-brief; statements offered for non-truth context not hearsay)
Staples v. United States, 410 F.3d 484 (8th Cir. 2005) (trial-strategy deference to counsel’s decisions)