United States v. Hussein Rahal (95-2341) and Haidar Rahal (95-2342)
191 F.3d 642
6th Cir.
1999
Check Treatment

*1 HULL, District Judges; and Judge.*

OPINION

BATCHELDER, Judge. on remand again is before us

This case Court, United Pa Supreme see from — Buzenius, Int’l

perworkers Union

U.S. —, L.Ed.2d 397 S.Ct.

(1998), light of its for reconsideration Marquez v. Screen Actors

decision

Guild, Inc., 292, 142 525 U.S. 119 S.Ct. (1998).

L.Ed.2d

Respondent has moved for dismissal of pursuant to Mar-

the Petition for Review op- Petitioner Buzenius has not

quez. Therefore, without ex-

posed this motion.

pressing any opinion whatsoever on may distinguishable this case be

whether decision, Marquez we DISMISS

from

the Petition for Review. America,

UNITED STATES

Plaintiff-Appellee, (95-2341) RAHAL (95-2342), Defendants-

Rahal

Appellants. 95-2341,

Nos. 95-2342. Appeals,

United States Court of

Sixth Circuit.

Argued: June Sept. and Filed:

Decided * Hull, nessee, sitting by designation. The Honorable Thomas G. Judge District for the Eastern District of Ten- *2 briefed), (argued

Jonathan Tukel and Detroit, MI, Atty., Office of the U.S. Plaintiff-Appellee. L. and (argued

Richard Knickerbocker briefed), Corporation, Knickerbocker Law California, Angeles, Los W. Merrill David- son, California, Angeles, Los for Defen- dants-Appellants. KRUPANSKY, RYAN,

Before: and INRICH, Judges. SUHRHE KRUPANSKY, J., opinion delivered the SUHRHEINRICH, court, in J., RYAN, 647), joined. (p. delivered J. separate opinion concurring judgment.

OPINION KRUPANSKY, Judge. Defendants-Appellants Rahal Rahal middlemen in a an individual killing miscarried contract in a testify against figures who was which Defendants- heroin Appellants participated. attempted bystander. the life of a De- murder took guilty pleas entered fendants-Appellants to Distribute charges Conspiracy Heroin, in violation U.S.C. 841(a)(1) 846; Conspiracy §§ Thereafter, Witness, paid in violation of Haidar Harris addi- a Federal Murder $1,000 replacement §§ and 1512. Both defen- to find a to mur- tional U.S.C. assignments of charged Tony dants have three Harris contacted Ow- der Cheaib. They have chal- appeal. direct error on did not know the name ens. While Haidar trial coun- of their lenged recruit, effectiveness Harris had identity of the new *3 sel; of 3D1.2 to application newly advised Haidar that enlisted related; as group their convictions through a “hitman” could be contacted district court’s sufficiency and the he, Harris, had to the pager furnished challenged into facts utilized investigation assassin. determining in their sentence. 2, 1992, after the Rahal On December in A of the facts the case reveals review brothers had determined the whereabouts 9, 1992, cooperat- September that on while Dearborn, area, Michigan of Cheaib F.B.I., sold ing with the Hassan Cheaib relayed Haidar location to Owen Cheaib’s kilogram one of heroin to Ibrahim Hourani telephone pager. via the Owens confirmed (Hourani “Ibrahim,” to will be referred as carry that he would out the murder “Dani”). son,

to avoid confusion with his day. immediately The F.B.I. arrested Ibrahim residence, Owens found Cheaib at his and, protect identity, arrested his where he was with a man named Mohamed Later, Cheaib. an affidavit which dis- “Booty” Biri. As the two walked from the an FBI closed Cheaib as informant was car, house toward Cheaib’s another vehicle inadvertently filed unsealed in the United approached erupting gunfire. a fusillade of members of States District Court. When fatally escaped Biri was Cheaib wounded. conspiracy copy, obtained a the heroin gunman away. drove while suspicion their that Cheaib was an infor- mant was confirmed. spoke evening, That same Harris to Hai- son, Hourani, recognized Ibrahim’s Dani dar, informing him that Owens demanded up that Cheaib had “set his father with the payment despite escape of target government heroin” and believed that the relayed of this Haidar this assassination. develop convincing prosecution not a could Dani, eventually information to who against his father without Cheaib as a pay money. agreed to Owens “some” of the witness. Dani solicited Haidar and Hus- $5,000, gave Haidar Harris Harris Rahal, drug system sein whose distribution delivered to Owens. murder, supplied, he to contract Cheaib’s arrested, After the Rahal brothers were $10,000 agreed for which Dani to cancel a attorney Hussein retained an to defend Haidar had accrued for drug indebtedness plea negotiations. him and to conduct his previous deliveries of heroin from Dani. represented, ap- Haidar was with court (For convenience, the will be brothers re- proval, by lawyer a who shared office individually ferred to “Haidar” as and space partner- a occupied by within suite “Hussein,” collectively and “the Ra- as ship attorneys in legal of which Hussein’s hals.”) partner. counsel was a The record dis- Haidar enlisted the services of Todd conflicting closed no documentation of a who, turn, in Harris subcontracted the interrelationship between the two defense murder to an individual identified as counsel. provided Harris with an Junior. Junior $1,000 payment pager plea agree- advance and a Both Rahal entered brothers they permit whereby direct communication with Haidar ments would receive re- testimony for exchange when the latter located Cheaib. Unfortu- duced sentences nately, pager against drug vanished with the other members of the and Junior $1,000 conspiracies. Following guilty the murder murder pursuing without pleas charges conspiracy contract. to the to dis- Washington, a Strickland v. to murder U.S. tribute heroin (1984) witness, the district court sen- 104 S.Ct. 80 L.Ed.2d 674 federal imprison- mandating to 144 months’ that a criminal defendant must tenced Haidar prove performance to Distribute Heroin that his counsel’s was Conspiracy for confinement deficient and that the ineffective assistance a concurrent 60 months’ plus prejudiced a Federal his counsel his in a Conspiracy to Murder Wit- of defense for impris- deprived manner which him of a fair trial. incurred 84 months’ ness. Hussein Conspiracy Consequently, Distribute Her- the instant where onment 60 months’ term for the defendants were convicted as result oin and concurrent pleas prove guilty Murder a Federal Witness. defendants must both Conspiracy to for the heroin that an actual conflict of interest existed The sentences adversely Guide- and that the conflict affected the derived from *4 providing grouping closely voluntary respective guilty related nature of their lines Foltz, 476, pleas. The sentences were consistent See Thomas v. 818 F.2d offenses. Cir.1987). (6th plea bargain agreements. with the Rahals’ 480 timely filed notices of this forum to find a conflict of For jurisdiction un- appeal. panel This invokes interest, Appellants must: § 1291. der 28 U.S.C. “specific point to instances the record charged three Haidar and Hussein each impair- an actual or suggest conflict appeal: whether of error on assignments Appellants ment of their interests.” effective assistance of they were denied make a of showing must factual inconsis- relationship of the be- counsel virtue interests must show that the tent counsel; respective defense tween them attorney possi- “made a choice between group- court erred in whether the district action, such as ble alternative courses of closely related ing their convictions as (or elicit) eliciting failing evidence crimes; the court and whether district the helpful to one client but harmful to searching by failing to conduct a erred choice, other. he did not make such a If facts disputed underlying into inquiry hypothetical.” remained the conflict pleas. the basis of the formed ... There is no violation where the con- merely hypotheti- flict “irrelevant or is A “ineffective assistance charge of significant an “actual cal” there must be legal generally cogniza of counsel” is not conflict.” v. appeal. ble on direct See United States (6th Cir.1996). 1135, Tucker, 1143 90 F.3d Thomas, (quoting F.2d at 481 United 818 appropriate appeal It on is direct (11th Mers, 1321, 701 F.2d 1328 States v. adequate to the when the record is assess Cir.1983) added)). (emphases allegations. of the defendants’ merits have asserted that The Rahals Kincaide, 771, v. 145 F.3d per representation afforded them the dual (6th Cir.1998). Claims of ineffective 785 right their to remain silent. se voided properly of counsel are more assistance However, specifically re court has “[t]his post-conviction proceeding available in a to conflicts of jected per se rule as 2255, parties § the under 28 U.S.C. after proof of an actual requires interest and opportunity develop had the have States, Taylor v. 985 conflict.” United on the issue from which adequate record Cir.1993). (6th They have 846 F.2d capable arriving court is reviewing the persuasive no evidence identified at an informed decision. United States satisfy dictates of Thomas. record to Cir.1994). (6th Seymour, 38 F.3d 263 conflict of record evidence of actual Absent interest, of coun the ineffective assistance Supreme The States Court United in a 28 U.S.C. litigated claim should be reviewing charges the standard for sel defined § of counsel 2255 action. of ineffective assistance involving substantially the “All counts challenged have also Rahals grouped together that an same harm shall be offenses of the criminal grouping involve single Group.” related Counts convictions as into chored their determining substantially their sen the same harm within purposes for the a district rule: meaning The court reviews this tences. regarding the legal conclusions court’s (a) counts involve the same victim When de novo. United Sentencing Guidelines act or transaction. and the same (6th Garner, F.2d States v. (b) involve the same victim counts When Cir.1991) application of A court’s district and two or more acts or transactions mixed involving Sentencing Guidelines objec- common criminal connected and fact are also reviewed questions of law constituting part of a common tive or Mills, de novo. See U.S. plan. scheme Cir.1993). (6th (c) one of the counts embodies When treated as a of- conduct Guidelines, Under in, adjust- or other fense characteristic Level for Count the Base Offense to, applicable to an- guideline indictment, Conspiracy to Kill a Federal other of counts. Witness, is 43. 2A1.5. Howev *5 added). er, (emphases § The Level of which U.S.S.G. 3D1.2 the Base Offense to feder- imprisonment, conspiracy of life is victim of the murder a invokes a sentence by statutory society the maximum al was Biri. The interest of circumscribed witness § by regulate which limits to the sale of controlled imposed generally 18 U.S.C. conspira- imprisonment years to five for Con was the victim of the substances heroin. See spiracy cy to Commit a Federal Offense or to to distribute U.S.S.G. (n.2). 3D1.2, Commentary The Defraud the United States. 18 U.S.C. comment When, action, in provision § in instant the makes it clear that the 371. as the to the separate it vic- statutorily authorized sentence instant as involves maximum tims, joined minimum im can under is less than the sentence the convictions be 3D1.2(e). Guidelines, § § posed by the the See 3D1.2 U.S.S.G. U.S.S.G. Thus, grouping maximum shall be a con- statutorily (backg’d). authorized comment spiracy sentence. to distribute heroin under U.S.S.G. guideline the U.S.S.G. 3D1.2(c) 5Gl.l(a). § a conspiracy § with a to murder a requires, federal witness as condition statutory The sentence for Count conspiracy precedent, treating the murder Heroin, however, Conspiracy to Distribute in, or “as a offense characteristic years. is at least four U.S.C. conspiracy to dis- adjustment other to” the 841(b)(1)(B).' § The Base U.S.S.G. Of- heroin, which, it not appears, tribute was the conspiracy fense Level for to distribute in- sentencing judge the by done admitted to amount of heroin the Rahals stant case. 26, meriting a sentence of distributing is However, to murder a conspiracy the I 63-78 months for the Class criminal his- an obstruction federal witness constituted However, tory Haidar and Hussein share. justice inextricably entangled which was 3D1.3(a), multiple § when under U.S.S.G. conspiracy with the to distribute heroin related, criminal counts are the applied adjust- as an and should have been of the counts within highest offense level the latter offense. Under ment group determines the Base Offense § 3C1.1: U.S.S.G. 3D1.3(a). § group. Level for the U.S.S.G. willfully If obstructed or the defendant § in Utilizing 3D1.3 results a Base Offense attempted or to obstruct or impeded, Level of 43 for Count 4. justice administration of dur- impede the investigation, prosecution, § ing 3D1.2 commands that U.S.S.G. offense, conspiracy in- the instant for the to murder a federal sentencing of by objective level 2 levels. The conspiracy the offense witness. crease murder federal witness was to avoid Commentary pro- § 3C1.1. The U.S.S.G. prosecution and was further intended to examples of list of vides “a non-exhaustive drug conspiracy allow the to continue. of conduct to which this enhance- types pro- applies” which includes “conduct judged Other circuits have §§ 1501-1516.” by hibited U.S.C. separate to conceal a and distinct contem- (n.3(i)). 3C1.1, Mur- § comment U.S.S.G. poraneous on-going conspiracy to be prohib- der of a federal witness is conduct properly with grouped underlying Accordingly, § ited 18 U.S.C. 1512. though conspira- even the two and Haidar’s sentences both Hussein’s See, separate e.g., cies victims. involved levels have been increased two should Coleman, However, justice. obstruction of for (8th Cir.1998). Accordingly, assum- motion for light of the Government’s ing applied that the district court had departure according to U.S.S.G. downward adjustment, § 3C1.1 the two 5K1.1, that acceptance § and the court’s conspiracies the instant case were adjustment apply failure to request, properly grouped. In an constituted harmless error. effort court, having reviewed and consid- context, appellate review in place this error, remaining assignment ered the inquiry court’s must continue to determine it concludes is not well taken and properly grouped if the convictions Accordingly, without merit. the decision 3D1.2(c) adjust- had the under U.S.S.G. court AFFIRMED. of the district applied. correctly ment been The Fourth has defined relevant RYAN, Judge, concurring. pur- grouping multiple offenses criteria *6 My opinion for affirmance brother’s 3D1.2(a)-(c) include: suant to U.S.S.G. result; eminently correct reaches the duration of the defendant’s conduct therefore, judgment I concur in whether conduct of conviction affirmance. time, overlaps in the locations which occurs, involved, persons

the conduct accomplish

the means used to the crimi- purpose, separateness

nal and the and risks of harm created

fear multiple

defendant’s acts. No control;

factor should the district court weigh JACKSON, Plaintiff-Appellant, them as the facts and cir- is to Linda of the individual case re- cumstances quire. QUANEX CORPORATION, offenses are connect- Whether or not Defendant-Appellee. objective criminal ed common also a critical determination. No. 98-1515. (4th Pitts, 239, 244 Cir. U.S. Appeals, States Court of United

1999). Sixth Circuit. developed by As the record of evi Argued June conspiracy to dence in the instant and interre on-going distribute heroin was Sept. Decided to murder a fed lated with persons eral witness. The involved were conspiracy. Money drug

members of the pay drug

from the was used