NOTICE: Sixth Circuit Rule 24(c) states that citation of unpublished dispositions is disfavored except for establishing res judicata, estoppel, or the law of the case and requires service of copies of cited unpublished dispositions of the Sixth Circuit.
UNITED STATES of America, Plaintiff-Appellee,
v.
Glenn Vincent ELLIS, Defendant-Appellant.
No. 92-2188.
United States Court of Appeals, Sixth Circuit.
March 1, 1994.
Before: JONES and SILER, Circuit Judges; and LIVELY, Senior Circuit Judge.
PER CURIAM.
Defendant Glenn Vincent Ellis appeals his conviction and sentence for conspiracy and attempt to distribute cocaine and substantive distribution charges, in violation of 21 U.S.C. Secs. 841 and 846; and money laundering, in violation of 18 U.S.C. Sec. 1956. He raises several issues, including his conviction under a duplicitous superseding indictment; the denial of his motion for severance; and the admission of coconspirator statements. We affirm for the following reasons.
Background
During 1987 and 1988, Ellis trafficked in cocaine with Eric Whitby, Steven Whitby, and others in the Grand Rapids, Michigan area. In 1988, the Whitbys were arrested and agreed to cooperate with federal authorities. Ellis, however, continued his illicit activities into 1991 with Terrence Hollis, Debra Barnes, and Fabio Espinosa.
On April 6, 1990, Hollis was arrested for drug offenses while using a vehicle rented by Ellis. On December 27, 1990, agents at LaGuardia airport stopped Espinosa in possession of $61,770. Espinosa told agents that "Glenn," whose last name was unknown to him, loaned him the money. He described "Glenn" and gave agents "Glenn's" beeper number.1 On January 24, 1991, agents discovered Barnes in possession of $80,000, which she was to deliver to Espinosa. In a subsequent search of Barnes's house, agents found Ellis, several items of drug paraphernalia, and three ounces of cocaine.
Analysis
1. The duplicitous superseding indictment.
Ellis argues, for the first time on appeal, that he was erroneously convicted under a duplicitous superseding indictment. However, Fed.R.Crim.P. 12(b)(2) requires that "[d]efenses and objections based on defects in the indictment or information" be "raised prior to trial." Thus, a defendant who raises objections based on defects in the indictment for the first time on appeal waives the objections. See United States v. Oldfield,
2. Ellis's motion for severance.
Ellis next argues that the district court erred in failing to grant his pretrial motion for severance under Fed.R.Crim.P. 8(a) because the indictment alleged his involvement in two separate drug conspiracies. We review the failure to grant a severance under Rule 8(a) de novo. See United States v. Werner,
Ellis argues that the twenty-two month gap separating overt acts in the conspiracy charges indicates that the underlying offenses are dissimilar.3 Joinder of offenses is permissible when separate counts refer to the same type of offenses occurring over "a relatively short period of time." United States v. Lindsey,
3. Admission of coconspirator statements.
Next, Ellis argues that the district court erred in admitting statements made by Espinosa during custodial interrogation at LaGuardia airport, as coconspirator statements under Fed.R.Evid.P. 801(d)(2)(E), because these statements were made while Espinosa was "under de facto arrest" after "his involvement in any conspiracy had [ended]." We review the district court's decision to admit coconspirator statements for abuse of discretion. See United States v. Rios,
4. Other issues.
Ellis raises several other issues that require less extensive analysis. First, Ellis argues that the district court erred in failing to grant him a continuance to obtain new counsel. Ellis requested the continuance twelve days before trial. The decision denying a continuance is reviewed for abuse of discretion. Lockett v. Arn,
Second, Ellis argues, for the first time on appeal, that he did not receive effective assistance of retained counsel at trial. However, "[a]s a general rule, a defendant may not raise ineffective assistance of counsel claims for the first time on direct appeal, since there has not been an opportunity to develop and include in the record evidence bearing on the merits of the allegations." United States v. Wunder,
Third, Ellis argues that the district court erred in finding him responsible for five to fifteen kilograms of cocaine, on the basis of information contained in the presentence report, when it determined his base offense level under USSG Sec. 2D1.1. The district court's determination of the quantity of drugs involved for sentencing purposes is reviewed for clear error. United States v. Medina,
Finally, Ellis argues that he was denied a sufficient opportunity to comment on facts contained in the presentence report, which the district court relied on in determining Ellis's base offense level under USSG Sec. 2D1.1. The district court was obligated to "afford the defendant and the defendant's counsel an opportunity to comment on the [presentence] report." Fed.R.Crim.P. 32(c)(3)(A). Furthermore, "a defendant may not be placed in a position where, because of his ignorance of the information being used against him, he is effectively denied an opportunity to comment on or otherwise challenge material information considered by the district court." United States v. Berzon,
Conclusion
Ellis's assertions of error lack merit. Therefore, we affirm the district court.
Notes
The beeper number was registered to Ellis's girlfriend. Debra Barnes (Ellis's aunt) testified that she asked Ellis's girlfriend to get the beeper for Barnes
The government argues that Ellis wavied this issue by failing to renew his pretrial motion for severance at the end of trial. However, Ellis's pretrial motion for severance under Rule 8(a) did not have to be renewed. See United States v. Terry,
Ellis's brief is unclear on the length of the period separating the offenses, but twenty-two months is the longest asserted period