Rоnald WEAVER, Petitioner-Appellee v. UNITED STATES of America, Respondent-Appellant; Ronald Weaver, Petitioner-Appellant v. United States of America, Respondent-Appellee
Nos. 13-3320, 13-3321
United States Court of Appeals, Eighth Circuit
Submitted: April 13, 2015. Filed: July 16, 2015.
857 F.3d 857
As the district court correctly noted:
[H & Q has] not alleged that their authorization was required for creation of LLC accounts, or that such authorization was required for the transfer [of] money from accounts belonging to the LLC. [H & Q‘s] allegations are also devoid of any suggestion that [the Doll Companies] attempted to conceal the existence of either account from [H & Q]. In fact, according to [H & Q], [the Doll Companies] specifically revealed both accounts, at the latest, in August of 2011.... In sum, there are no allegations from which the Court can infer that [the Doll Companies] fraudulently sought to deprive [H & Q] of any right to the customer payments, or that [the Doll Companies] lacked any right to the customer payments transferred to Account No. 119992. Thus, the Court cannot conclude that [the Doll Companies‘] represеntations were false or part of a fraudulent scheme.
Consequently, even assuming the Doll Companies used “mail or wires” to deposit checks or transfer funds, H & Q‘s allegations fall woefully short of establishing mail or wire fraud. See id. Thus, although certain of the appellees’ alleged actions may give rise to various state-law claims, they do not constitute racketeering activity within the meaning of RICO.5
B. Leave to Amend
III. Conclusion
Accordingly, we affirm the decision of the district court.
Notes
Before RILEY, Chief Judge, LOKEN and SHEPHERD, Circuit Judges.
RILEY, Chief Judge.
A jury convicted Ronald Weaver of conspiracy to manufacture and distribute and possession with intent to distribute cocaine base in violation of
I. BACKGROUND
On October 24, 2006, in a second superseding indictment, a federal grand jury charged Weaver and co-defendants Carvell England and Jamale Key, among others, with crack-cocaine conspiracy and possession crimes. England pled guilty on April 17, 2007, and Key pled guilty on April 19, 2007. Of six co-defendants, only Weaver proceeded to trial beginning April 24, 2007, and a jury found him guilty on both charged counts. Weaver filed a motion for a new trial, which the district court denied. Weaver‘s trial counsel, Chad Primmer, then moved to withdraw as attorney. The district court granted the motion and appointed Stuart Dornan to represent Weaver for sentencing.
The district court convened Weaver‘s sentencing hearing on June 2, 2008, after co-defendants England and Key already had been sentenced. Although neither England, Weaver‘s “godbrother,” nor Key, Weaver‘s cousin, testified at Weaver‘s jury trial, both testified on Weaver‘s behalf at his sentencing hearing. England testified, in effect, that Weaver had nothing to do with the crimes charged against him. Key similarly testified Weaver was not involved in the charged conspiracy and distribution conduct. The district court sentenced Weaver to 300 months imprisonment on each of the two counts, to run concurrently.
After his unsuccessful direct appeal, Weaver moved to vacate his sentence under
The district court denied Weaver‘s
II. DISCUSSION
We evaluate a claim of ineffective assistance of both trial counsel and sentencing counsel by following the standard articulated in Strickland v. Washington, 466 U.S. 668, 671, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). See, e.g., Theus v. United States, 611 F.3d 441, 446 (8th Cir. 2010). To succeed, Weaver “must show that counsel‘s performance was deficient” and “that the deficient performance prejudiced the defense.” Strickland, 466 U.S. at 687. “In any case presenting an ineffectiveness claim, the performance inquiry must be whether counsel‘s assistance was reasonable considering all the circumstances.” Id. at 688. We “indulge a strong presumption that counsel‘s conduct falls within the wide range of reasonable professional assistance.” Id. at 689. And “strategic choices made after thorough investigation of law and facts relevant to plausible options are virtually unchallengeable.” Id. at 690. “We review [Weaver‘s] ineffective assistance claim[s] de novo and review the district court‘s factuаl findings for clear error.” Scott v. United States, 473 F.3d 1262, 1263 (8th Cir. 2007).
A. Trial Counsel
1. England and Key
Weaver alleges the district court erred by not finding trial counsel Primmer ineffective for “fail[ing]” to determine whether Mr. Key and Mr. England were willing to testify” at trial “on Mr. Weaver‘s behalf.” Weaver submitted affidavits signed in 2010 by England and Key, each of whom stated he willingly would have testified at trial, but Primmer had not contacted him or his lawyer about the matter.
At the
I was notified by my client yesterday afternoon that some or all of your clients wish to testify on his behalf at his trial starting next week. I am not going to speak with any of your clients without permission. Could each of you comment on whether or not there is any accuracy to this or if I have permission to contact your client.
That same day, Primmer filed an “Application for Maintenance of Prisoners” with the district court, stating Weaver told Primmer that England and Key wanted to testify on Weaver‘s behalf and requesting England and Key be available to testify at trial on April 24, 2007. The district court ordered that both potential witnesses be available during the trial.
Primmer testified that his “rеcollection is that at least one lawyer called [him]
Primmer further testified the lawyers’ responses to his email were commensurate with his experience as a defense lawyer, because “if you object to particular relevant conduct in your presentence reрort or if you testify in a manner that the court deems isn‘t correct, you could lose acceptance of responsibility [credit at sentencing]. You could face obstruction of justice. Or you could face another separate indictment for ... perjury.” Primmer concluded that for the testifying witness, “a bad situation gets very bad.... [A]lmost nothing good can come of it.” Nevertheless, Primmer stated “if either [England or Key] were willing to come into court and testify for Mr. Weaver, [Primmer] absоlutely would have called them.”
Metzgar testified he advised England not to testify at Weaver‘s trial, and after that discussion “[England] wasn‘t going to speak to Mr. Primmer.” Metzgar testified England did not tell him England wanted to testify on Weaver‘s behalf. Flannery explained he advised Key not to testify for any proceeding, in part because of possible questions about an unrelated murder case. Flannery stated that he and Key “both agreed that he should not talk to anyone” because things “could havе gotten a lot worse for [Key].” Flannery stated he communicated this to Primmer by telephone. Primmer took these refusals to mean that England and Key would invoke their Fifth Amendment right against self-incrimination should they be called to the witness stand.
As the district court observed, Primmer did exactly what Weaver requested him to do—he investigated the possibility of England and Key testifying at trial. Primmer filed the application with the court to ensure England and Key, both prisoners, would be available to testify. Primmer emаiled England‘s and Key‘s attorneys to inquire whether they would testify. Neither attorney responded positively to Primmer‘s email.
But Weaver suggests Primmer should have subpoenaed England and Key and then interviewed them outside the presence of the jury pursuant to
2. 18 U.S.C. § 3161(c)(2) Writing Requirement
Weaver initially appeared and was arraigned on a second superseding indictment on April 13, 2007. At that time, trial for Weaver‘s co-defendants, who eventually pled guilty, was set to begin ten days later on April 23, 2007.4 At the arraignment, trial counsel Primmer assured the magistrate judge that Weaver wanted to go ahead with the April 23 trial date. The magistrate judge asked Primmer if he had “been involved in this case already,” to which Primmer replied,
I‘ve been representing Mr. Weaver for some time on matters both relating to this as well as his pending indictment in the Southern District of Iowa in Des Moines. This case was previously a state case. I have had access through Mr. Weaver of all copies of state discovery materials and state depositions [and] the U.S. Attorney‘s Office in Sioux City and [the assistant U.S. Attorney] have previously made available all discovery materials in this particular case.
The following colloquy ensued:
THE COURT: Mr. Weaver, ... do you understand that you have the right to insist on more time to get ready for trial if you want?
THE DEFENDANT: Yes, sir.
THE COURT: And is it correct that you wish to go ahead on the April 23rd date as scheduled?
THE DEFENDANT: Yes, sir.
Weaver now alleges trial counsel Primmer rendered ineffective assistance by “fail[ing] to object to Mr. Weaver‘s oral waiver [of] his right to have [thirty] days to prepare for trial.” See
Weaver alleges prejudice due to thе short time span between arraignment and trial, contending that additional preparation time would have allowed Primmer “to research and identify the proper procedure
As previously described, Primmer followed a reasonable procedure for investigating England‘s and Key‘s willingness to testify. Weaver has not established he was prejudiced by the lack of a written waiver of the thirty-day
B. Sentencing Counsel
Weaver successfully argued in the district court that sentencing counsel Dornan failed to provide effective assistance when he did not file a second motion for a new trial. The district court faulted Dornan for not inquiring into whether England and Key would have offered exculpating testimony at Weaver‘s trial when Dornan knew they were willing to do so at Weaver‘s sentencing hearing. Weaver contends England‘s and Key‘s exculpating testimony would have amounted to “newly discovered evidence” under
“When newly discovered evidence is the ground for a
In its ordеr vacating Weaver‘s sentence, the district court stated England‘s and Key‘s “attorneys told them not to testify before their sentencing.”5 The district
Attorneys Joe Flannery and Matt Metzgar, who represented Mr. Key and Mr. England, respectively, also testified at the evidentiary hearing. Mr. Metzgar stated that he communicated Mr. Primmer‘s request to his client but that he advised his client not to testify on Mr. Weaver‘s behalf. Mr. Flannery stated that he told Mr. Primmer that Mr. Key would not testify on Mr. Weaver‘s behalf. (The Court notes that Mr. Key and Mr. England were advised not to testify for valid, strategic reasons in their own cases, related to possible incrimination and sentencing enhancements).
(Emphasis added). The district court further stated, “[A]ccording to Mr. Key and Mr. England, they were always willing to testify for Mr. Weaver, although their respective counsel advised against it.” The district court explained,
Based on the evidence currently before the Court, it seems clear Mr. Key and Mr. England would have told Mr. Dornan that they would have been happy to testify at trial, even though their attorneys opposed such testimony. The fact that co-conspirators were willing to testify on Mr. Weaver‘s behalf at trial, but did not, should have formed the basis for a Motion for a New Trial.
The record evidence does not support the district court‘s factual finding. England and Key testified at Weaver‘s sentencing hearing in 2008, submitted affidavits sworn in 2010, and testified at Weaver‘s
For example, in England‘s 2010 affidavit, he declares, “[M]y lawyer never even had a conversation with me about [Weaver‘s] lawyer wanting me to testify in [Weaver‘s] behalf, because if he would have I would have testified in his bеhalf without any hesitation.” Similarly, in Key‘s 2010 affidavit, he proclaims, “[M]y lawyer and I have never been approached with this matter, nor have we ever had such a conversation with [M]r. Weaver‘s lawyer pertaining to this matter, because if we would have, I would have gladly ... testified in [M]r. Weaver‘s behalf.” Thus both England and Key directly contradict the district court‘s factual finding that their attorneys told them, at the time of trial in April 2007, about the possible repercussions of testifying and both were still willing to testify and risk grеater punishment. So any finding based on England‘s and Key‘s post-sentencing affidavits and testimony as to what either would have done in April 2007, before sentencing, is conjecture shaped by “the distorting effects of hindsight.” Strickland, 466 U.S. at 689.
The district court‘s factual finding that “Mr. Key and Mr. England would have told Mr. Dornan that they would have been happy to testify at trial, even though their attorneys opposed such testimony” may well be true—they may well have told Dornan exactly that, after the potential harm to their sentencing hearings was mooted. But we cannot conclude, based on the record before us, that either would have advised his own attorney to tell Primmer the same thing in April 2007, before their sentencings.
We also note neither England nor Key credibly claims he told his counsel before trial in April 2007 he wanted to testify on Weaver‘s behalf, as one would expect from
As Dornan succinctly put it, he did not file a motion for a new trial because England‘s and Key‘s new exculpatory testimony was, at the time of the sentencing hearing in 2008, “newly available,” rather than “newly discovered.” See Bell, 761 F.3d at 911 (“‘Rule 33 does not authorize district courts to grant new trials on the basis of such evidence since it is not newly discovered, but merely newly available.‘” (quoting United States v. Owen, 500 F.3d 83, 89 (2d Cir. 2007))). “[W]here, as in this case, a defendant knew or should have known, that his codefendant could offer material testimony as to the defendant‘s role in the charged crime, the defendant cannot claim that he ‘discovered’ that evidence only after trial.” Owen, 500 F.3d at 91; see id. at 91-92 n. 5 (stating whether testimony was deemed “newly discovered” was not dependent upon the attorney‘s diligence at trial to prоcure the testimony of a co-defendant exercising his right to avoid self-incrimination); see also United States v. Moore, 221 F.3d 1056, 1058 (8th Cir. 2000) (“Although [the defendant] argues that [his co-defendant] was an unavailable witness [at the time of trial] since he was awaiting sentencing for his role in the drug conspiracy, this court has held that ‘when a defendant who has chosen not to testify subsequently comes forward to offer testimony exculpating a codefendant, the evidence is not newly discovered.‘” (quoting United States v. Mosby, 12 F.3d 137, 138 (8th Cir. 1993) (per curiam))). Dornan rеasonably did not believe he “could in good faith proceed” to seek a motion for a new trial at sentencing and did not “think ethically [he] could proceed in that fashion.”
Considering the totality of the circumstances, sentencing counsel Dornan reasonably “rel[ied] upon the general rule that belated exculpatory testimony by a codefendant who did not testify at trial is not newly discovered evidence,” Lofton, 333 F.3d at 876, and reasonably concluded England‘s and Key‘s silence at the time of trial and change of heart after Weaver‘s trial and after their sentencing hearings did not constitute newly discovered evidence. See Bell, 761 F.3d at 911; United States v. Rogers, 982 F.2d 1241, 1245 (8th Cir. 1993). We conclude the district court erred in concluding that sentencing counsel Dornan provided ineffective assistance in failing to file a second motion for a new trial.
III. CONCLUSION
We affirm in part and reverse in part, and we reinstate Weaver‘s conviction and sentence.
At the same time, the district сourt correctly pointed out “there is no evidence that Mr. Key was ever told by Mr. Flannery that Mr. Weaver wanted him to testify at trial.”