Robert Dale Murr v. United States of America

*The Honorable Ann Aldrich, United States District Judge for the
Northern District of Ohio, sitting by designation.
1
RECOMMENDED FOR FULL-TEXT PUBLICATION
Pursuant to Sixth Circuit Rule 206
ELECTRONIC CITATION: 2000 FED App. 0008P (6th Cir.)
File Name: 00a0008p.06
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
_________________
R OBERT DALE M URR,
Petitioner-Appellant,
v.
UNITED S TATES OF AMERICA ,
Respondent-Appellee.
;>

1
No. 98-6202
Appeal from the United States District Court
for the Eastern District of Kentucky at Lexington.
Nos. 97-00158; 90-00026—Henry R. Wilhoit, Jr.,
Chief District Judge.
Argued: September 22, 1999
Decided and Filed: January 7, 2000
Before: MERRITT and CLAY, Circuit Judges; ALDRICH,
District Judge.*

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2 Murr v. United States No. 98-6202
_________________
COUNSEL
ARGUED: Herbert S. Moncier, Knoxville, Tennessee, for
Appellant. James E. Arehart, OFFICE OF THE U.S.
ATTORNEY, Lexington, Kentucky, for Appellee.
ON BRIEF: Herbert S. Moncier, Knoxville, Tennessee, for
Appellant. Frances E. Catron, OFFICE OF THE U.S.
ATTORNEY, Lexington, Kentucky, for Appellee.
_________________
OPINION
_________________
CLAY, Circuit Judge. Petitioner, Robert Dale Murr,
appeals an order entered by the district court denying
Petitioner’s motion to vacate his narcotics trafficking
conviction and sentence pursuant to 28 U.S.C. § 2255. For
the reasons set forth below, we AFFIRM the judgment of the
district court.
BACKGROUND
Procedural History
1. Eastern District of Tennessee Prosecution
On August 22, 1989, a grand jury in the Eastern District of
Tennessee issued a six-count indictment charging Petitioner
with various narcotics trafficking offenses. Petitioner was
charged with two counts of distribution of cocaine; the first
count charged that Petitioner distributed ten ounces on July 4,
1989, and the second charged that he distributed 500 grams or
more on August 17, 1989, in violation of 21 U.S.C.
§ 841(a)(1). Also, Petitioner was charged with four counts of
using a telephone or telephone paging device to facilitate
these cocaine distributions, in violation of 21 U.S.C. § 843(b).

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22 Murr v. United States No. 98-6202
169 F.3d 1035, 1041 (6th Cir. 1999) (emphasis added). The
same holds true here. Under the facts of the instant case, the
jury’s guilty verdicts on Counts 2 through 11 required the
jurors to unanimously agree that Petitioner had committed at
least three predicate narcotics violations and that these
violations were related to one another because they were all
part of the cocaine distribution conspiracy.
Accordingly, the district court’s failure to expressly instruct
jurors that they must unanimously agree which offenses
constitute the CCE did not have a substantial and injurious
influence or effect on the jury’s guilty verdict in the CCE
count. See Long, 190 F.3d at 476 n.3 (concluding that the
district court’s failure to give the CCE unanimity instruction
required under Richardson “was clearly harmless as the jury
also unanimously found him guilty of more than three drug
violations committed in the course of the ongoing conspiracy
to distribute cocaine”); Escobar-de Jesus, 187 F.3d at 162
(holding that the erroneous CCE instruction was harmless
where “[t]he evidence introduced to support the separate
convictions on the [predicate narcotics violations] also
establishes inescapably their relatedness”).
Accordingly, the district court’s failure to instruct the jurors
that they must unanimously agree about which narcotics
violations constitute the “continuing series” of violations for
CCE purposes does not require vacatur of Petitioner’s CCE
conviction and sentence because the error was harmless.
For the reasons set forth above, we AFFIRM the judgment
of the district court.
No. 98-6202 Murr v. United States 3
On the eve of the Tennessee trial, the government proposed
a plea agreement to Petitioner’s attorney. Following
negotiations, the parties presented a conditional plea
agreement to Eastern District of Tennessee Judge Jarvis on
January 16, 1990. Judge Jarvis deferred acceptance of the
plea agreement, pending a presentence investigation. The
presentence investigation was completed on April 10, 1990.
On June 12, 1990, Judge Jarvis accepted the plea agreement
and sentenced Petitioner to 63 months of imprisonment and
a $70,000 fine. As part of this agreement, the government
agreed not to further charge Petitioner in the Eastern District
of Tennessee or in the Northern District of Georgia for certain
offenses of which it had knowledge.
2. Eastern District of Kentucky Prosecution
In February of 1990, during the presentence investigation
mentioned above, the government uncovered facts indicating
that Petitioner had been a leader in a cocaine trafficking
conspiracy in the Eastern District of Kentucky. Subsequently,
in March of 1991, while Petitioner was serving the sentence
imposed in the Tennessee prosecution, a grand jury in the
Eastern District of Kentucky issued an indictment charging
Petitioner and twelve other defendants with narcotics
trafficking and related offenses. Specifically, Petitioner was
charged with 1) conspiracy to distribute cocaine in violation
of 21 U.S.C. § 846 (Count 1); 2) eleven substantive counts of
cocaine possession with the intent to distribute, and aiding
and abetting, in violation of 21 U.S.C. § 841(a)(1) and 18
U.S.C. § 2 (Counts 2 through 12); and 3) conducting a
continuous criminal enterprise (“CCE”) in violation of 21
U.S.C. § 848 (Count 13).
On October 9, 1991, a jury trial resulted in Petitioner’s
conviction on Counts 1 through 11 and Count 13 of the
indictment. The district court later vacated Petitioner’s
conviction on Count 10 as duplicitous of Count 9; Petitioner’s
conspiracy conviction under Count 1 was vacated because it
merged with his CCE conviction under Count 13. Petitioner
was ultimately sentenced to 240 months imprisonment, to be

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4 Murr v. United States No. 98-6202
served concurrently with his prior drug sentence from the
Eastern District of Tennessee. Petitioner’s conviction and
sentence were subsequently affirmed on direct appeal. See
United States v. Phibbs, 999 F.2d 1053 (6th Cir. 1993), cert.
denied, 510 U.S. 1119 (1994).
3. Petitioner’s § 2255 Motion to Vacate his Eastern
District of Kentucky Conviction and Sentence
On April 23, 1997, Petitioner filed the § 2255 motion
currently on appeal to vacate his conviction and sentence
imposed in the Eastern District of Kentucky. Petitioner
principally argued that, in light of the preceding Tennessee
conviction, his Kentucky conviction for substantive cocaine
violations and for operation of a CCE involving cocaine
distribution violated his rights under the Double Jeopardy and
Due Process Clauses of the Fifth Amendment, and under
principles of res judicata.
On March 31, 1998, the magistrate judge assigned to the
case recommended that Petitioner’s motion be denied.
Petitioner subsequently filed objections to the magistrate’s
Report and Recommendation. On July 6, 1998, the district
court issued an opinion and order adopting the magistrate’s
Report and Recommendation, and dismissing Petitioner’s
§ 2255 motion. Petitioner then moved to vacate the order
dismissing his § 2255 motion on grounds not raised in the
original petition; this last motion was denied on August 10,
1998.
In denying Petitioner’s § 2255 motion, the district court
granted a certificate of appealability on only two issues: (i)
whether Petitioner was subject to double jeopardy; and (ii)
whether Petitioner was entitled to severance from one of his
co-defendants for purposes of trial. Petitioner then filed a
timely notice of appeal.
No. 98-6202 Murr v. United States 21
3The jury acquitted Petitioner of count 12, which charged cocaine
possession with the intent to distribute on April 11, 1990 — after
Petitioner had already been in federal custody for at least eight months.
• May 8 and 9, 1989 (counts 9 and 10); and
• May 18, 1989 (count 11).3
(J.A. at 156-63.) At trial, the government presented
substantial evidence that these narcotics violations were
committed as part of the wide-ranging conspiracy, headed by
Petitioner, to acquire and distribute cocaine. Notably,
Petitioner — who does not contest the accuracy of the
evidence presented at trial — nowhere contends that these
violations were isolated events that by chance happened in
sequence and involved the same people.
In United States v. King, a case with a strikingly similar fact
pattern, this Court held that the district court’s failure to give
the CCE unanimity instruction could amount to no more than
harmless error where the trial evidence made clear that the
predicate narcotics violations were part of a “continuing
series”:
In this case, King [the defendant] was convicted on all of
the underlying predicate offenses. We thus have no
doubt that the jury was unanimous in finding that King
committed not only three, but nine marijuana-related
predicate offenses. Moreover, the evidence presented to
the jury clearly established that these offenses were
related to one another, because they were all a part of
King’s ongoing distribution business. King has never
claimed otherwise. Given this record, no rational jury
could unanimously find King guilty of the underlying
predicate offenses without also unanimously finding that
they were related to each other. Consequently . . . the
alleged error did not affect the verdict in this case and
was harmless.

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20 Murr v. United States No. 98-6202
sure that the error had no or very slight effect or influence on
the jury’s decision, the verdict and judgment must stand.
O’Neal v. McAninch, 513 U.S. 432, 436-38 (1995). To
warrant habeas relief because of incorrect jury instructions,
Petitioner must show that the instructions, as a whole, were so
infirm that they rendered the entire trial fundamentally unfair.
See Estelle v. McGuire, 502 U.S. 62, 72 (1991).
The error here was harmless. First, the jury’s decision to
convict Petitioner on Counts 2 through 11 of the indictment
— which were alleged to be predicate violations supporting
the CCE count — necessarily establishes that the jurors
agreed unanimously that he was guilty of those offenses.
“This decision ensures that the concern at the core of the
Richardson decision — namely, that jurors might convict on
the basis of violations for which there was non-unanimity —
is not present.” Escobar-de Jesus, 187 F.3d at 162.
Second, given the evidence adduced at trial, in finding
Petitioner guilty of Counts 2 through 11, the jury necessarily
made factual findings establishing that these violations were
related to one another. As noted, § 848(c) requires that jurors
agree that the “series” of narcotics violations be “continuing”
in nature — in other words, that they be related to each other
in some way. See, e.g., United States v. Edmonds, 80 F.3d
810, 822 (3d Cir. 1996) (en banc) (holding that the jury must
unanimously agree that the underlying narcotics violations
were “related” to each other for CCE purposes). In the instant
case, Counts 2 through 11 each charged that while in
Lexington, Kentucky, the defendants, including Petitioner,
possessed cocaine with the intent to distribute, in violation of
21 U.S.C. § 841(a)(1) and 18 U.S.C. § 2, on or about the
following time periods:
• August 25, 1988 (count 2);
• September, October and November of 1988 (counts 3,
4 and 5);
• February, March and April of 1989 (counts 6, 7 and 8);
No. 98-6202 Murr v. United States 5
Facts
The following factual background is taken directly from
this Court’s opinion affirming Petitioner’s conviction and
sentence on direct appeal. See Phibbs, 999 F.2d at 1060-62.
On February 23, 1990, Jerry Parks was detained by FBI
agents in Nashville, Tennessee, in connection with an
ongoing drug investigation. After discussions with the
government, he agreed to cooperate in the probe.
Parks revealed that his friend, Robert Murr, had visited
him a number of times during the summer of 1988 when
Parks was residing in a federal ‘halfway house’ in
Bowling Green, Kentucky. On some of these occasions,
Murr would deliver cocaine to him to sell. Murr wanted
Parks to come to Knoxville, Tennessee, to work for him
in his drug distribution venture. He directed Robert
Phibbs, who was on the payroll of one of Murr’s
legitimate businesses, Automotive Enterprises, to write
a letter to Parks’ federal probation officer requesting that
he be allowed to transfer to the Knoxville area. Murr
told Phibbs to promise the probation authorities that
Parks would be provided with a job at Automotive
Enterprises. His efforts were rewarded, and Parks was
permitted to move to Knoxville.
Parks’ position at Automotive Enterprises was a
subterfuge; he actually spent his time helping Murr
distribute cocaine. In August of 1988, Murr arranged to
sell four kilograms of cocaine to Billie Dye and David
Hurt. Parks and Dye gathered approximately $100,000
in cash and, pursuant to Murr’s instructions, started out
in Lexington, Kentucky, where they were to meet with
Murr. . . . [T]he transaction was consummated the next
day.
Beginning in September of 1988, Parks traveled with
Murr and another drug dealer named Tommy McKeehan
to the Lexington area every few weeks to obtain multi-
kilogram quantities of cocaine. During the first such trip,
Parks became acquainted with Murr’s drug source,
Kenneth Lawson. Whenever Murr needed cocaine, he

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6 Murr v. United States No. 98-6202
went with McKeehan to a pay telephone and called
Lawson. After a deal had been struck, Murr, Parks and
McKeehan would meet at Judy Murr’s [Petitioner’s ex-
wife] residence early in the morning before leaving for
Kentucky. Murr and McKeehan would then organize the
money to be used in the sale into $1,000 bundles, putting
these stacks in brown paper bags.
Aside from taking part in these trips, Parks served as
the ‘front man’ for the drug distribution ring. Murr
introduced Parks to his regular cocaine customers,
including Raymond Huckelby and Edward Rogers. At
such meetings, Murr would instruct Parks with regard to
the amount of cocaine to be supplied, the price of the
drug, and how often it was to be furnished. He would
then tell Parks and the purchaser to exchange telephone
numbers, beeper numbers, and beeper codes in order to
stay in contact. For several months, Parks delivered
drugs to Murr’s customers in this fashion. When Murr
was unavailable, Parks would turn over the money he
received in return to either Phibbs or to Judy Murr.
In October of 1988, Parks first encountered Victor
Rojas while on one of the excursions to Kentucky he
made with Murr and McKeehan to buy cocaine. Rojas,
who was Lawson’s supplier, brought the drugs to the
location where the sale would take place. . . .
Parks, Murr, and McKeehan would either give their
money to Lawson or he would leave it in Rojas’ vehicle,
taking the cocaine for which they had paid. McKeehan
would then be given his share. After the drugs were
driven back to Knoxville, Parks and Murr stashed them
at the house Murr rented for his girlfriend, Diane Whited.
She stored the cocaine in the attic in a green duffel bag
with a padlock on it. In order for Parks to get the cocaine
from Whited’s house to distribute, he would have to
contact Murr, who, in turn, would call Whited to set up
a time for the two of them to come over. Parks went to
Whited’s residence 15 to 20 times in the fall of 1988 to
pick up drugs. On at least one occasion, Whited assisted
Murr and Parks in breaking down the cocaine into salable
quantities.
No. 98-6202 Murr v. United States 19
elements, namely the several ‘violations,’ in respect to each
of which the jury must agree unanimously and separately.”
Id. at 1710. Because the Court engaged in such deliberations,
Petitioner claims that the decision in Richardson was a matter
of substantive law, and therefore, Teague does not apply. As
a result, the holding in Richardson should apply retroactively.
We agree with Petitioner’s contention.
Richardson involves the substantive construction of a
criminal statute. The Court in Richardson examined the
meaning of § 848(c)’s phrase “series of violations,” and
determined that it meant the jury must agree that the
defendant committed some continuing series of violations,
and which specific violations make up that continuing series.
Richardson, 119 S. Ct. at 1713. Therefore, in light of
Bousley, Richardson applies retroactively because it set forth
substantive law. See Bousley, 118 S. Ct. at 1609.
The analysis does not, however, end at this point. We
affirm Petitioner’s CCE conviction and sentence because the
harmless error doctrine applies and the district court’s error in
failing to instruct the jury was harmless. The Richardson
Court noted the application of harmless error in such
instances, as it remanded the case to the United States Court
of Appeals for the Seventh Circuit to determine “whether to
engage in harmless error analysis, and if so, whether the error
was harmless in this case.” Richardson, 119 S. Ct. at 1713.
See Neder v. United States, 119 S. Ct. 1827, 1837 (1999)
(holding that the trial court’s omission during its jury
instructions of an essential element of the offense charged is
subject to harmless error review); United States v. Escobar-de
Jesus, 187 F.3d 148, 161 (1st Cir.1999) (holding that the
district court’s failure to include a CCE unanimity instruction
under Richardson was only harmless error).
Moreover, for purposes of federal habeas corpus review, a
constitutional error that implicates trial procedures shall be
considered harmless unless it had a "substantial and injurious
effect or influence in determining the jury's verdict." Brecht
v. Abrahamson, 507 U.S. 619, 637 (1993). If this Court is

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18 Murr v. United States No. 98-6202
applies retroactively; therefore, his CCE conviction and
sentence must be vacated because the district court failed to
so instruct the jury.
In Griffith v. Kentucky, 479 U.S. 314, 328 (1987), the
Supreme Court held that “a new rule for the conduct of
criminal prosecutions is to be applied retroactively to all
cases, state or federal, pending on direct review or not yet
final.” In Teague v. Lane, 489 U.S. 288 (1989), the Court
later modified this rule to answer questions of retroactivity for
cases on collateral review. In Teague, the Court stated that
as a general rule, “new constitutional rules of criminal
procedure will not be applicable to these cases which have
become final before the new rules are announced.” Id. at 310.
The Court then set forth two exceptions to this general rule.
First, a new rule should apply retroactively if it places “certain
kinds of primary, private individual conduct beyond the
power of the criminal law-making authority to proscribe.” Id.
at 311 (citation and internal quotation marks omitted).
Second, a new rule should apply retroactively if it requires the
observance of “those procedures that are implicit in the
concept of ordered liberty.” Id. (citation and internal
quotation marks omitted). Hence, the central issue of whether
retroactivity applies is whether Teague applies. Teague only
applies if the new case for which retroactive effect is sought
announces a procedural rule; if the new case announces a
substantive rule, Teague does not apply. See Bousley v.
United States, 118 S. Ct. 1604, 1609 (1998).
Richardson involves the issue of jury unanimity. There, the
Court determined that a jury must unanimously agree not only
that the defendant committed some “continuing series of
violations,” but also about which specific “violations” make
up that “continuing series.” Richardson, 119 S. Ct. at 1713.
To arrive at this holding, the Court interpreted 21 U.S.C.
§ 848, the Continuing Criminal Enterprise statute. The Court
stated that “we must decide whether the statute’s phrase
‘series of violations’ refers to one element, namely a ‘series,’
in respect to which the ‘violations’ constitute the underlying
brute facts or means, or whether those words create several
No. 98-6202 Murr v. United States 7
Keeping the cocaine at Whited’s house proved to be
unworkable because Parks needed ready access to the
stash, and Murr would not let Parks enter the house
without him. At the end of November 1988, Murr told
Parks to bury the cocaine in a pipe on the side of a hill
behind Automotive Enterprises. The only person besides
Parks who knew exactly where the drugs were hidden
was Phibbs.
The drug distribution ring was so successful that Murr
and Lawson talked about what should be done with the
rather substantial profits. Murr recognized that he could
‘launder’ some of the funds through his business partner,
Ernie Nicely. The companies that he had established
with Nicely were not doing so well, so Murr began to
funnel money to him to keep them afloat. Nicely
understood that the bulk of this money was derived from
drug sales.
After November of 1988, Murr no longer wanted to
accompany Parks and McKeehan to Kentucky to obtain
cocaine. Consequently, he sent the two of them alone to
complete deals in February, March, April, and May of
1989. . . .
[O]n May 22, 1989, the Knoxville police arrested
Parks for burglary. He was wounded while in the process
of being apprehended. The authorities subsequently
seized a set of electronic scales and six address books
from him. One of these books contained Parks’ drug-
related activities that month, and included a coded list of
some of Murr’s customers, as well as a description of the
drug ring’s cocaine inventory.
Despite Parks’ arrest, the drug ring continued to
operate. Jim Hurt soon took over some of Parks’
functions, delivering cocaine for Murr to Edward Rogers,
and possibly others. However, when Rogers complained
about the poor quality of the cocaine that Hurt was
selling him, Murr began to personally supply Rogers.
This continued until August of 1989, when Murr himself
was arrested on federal drug charges. . . .
Murr had entered into a plea agreement with the
government in January of 1990 in the Eastern District of

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8 Murr v. United States No. 98-6202
Tennessee. It was not until Parks had been questioned in
late February of 1990 that the government became aware
of Murr’s cocaine venture extending into Kentucky.
DISCUSSION
Standard of Review
“In reviewing the denial of a 28 U.S.C. § 2255 petition, this
Court applies a de novo standard of review of the legal issues
and will uphold the factual findings of the district court unless
they are clearly erroneous.” Hilliard v. United States, 157
F.3d 444, 447 (6th Cir. 1998). Where no evidentiary hearing
is held, the district court’s denial of the motion will be upheld
where “the files and records of the case conclusively establish
that the prisoner is entitled to no relief.” 28 U.S.C. § 2255
(1994); Baker v. United States, 781 F.2d 85, 92 (6th Cir.
1986).
I. Double Jeopardy
Petitioner first argues that his constitutional rights were
violated because the government knew of the facts underlying
his subsequent conviction in the Eastern District of Kentucky
before Petitioner was convicted in the Eastern District of
Tennessee. We disagree.
It is well-settled law that failure to raise an argument at trial
or on direct appeal is waived on collateral review under
§ 2255, absent a showing of both cause and actual prejudice.
United States v. Frady, 456 U.S. 152 , 164-65, 167 (1982).
In this case, Petitioner’s double jeopardy claim has been
raised for the first time on collateral review. Petitioner did
not present this issue at pretrial, at trial, or on direct appeal.
Rather, on direct appeal, Petitioner argued only that his
prosecution in the Eastern District of Kentucky violated his
earlier plea agreement in the Eastern District of Tennessee.
Petitioner makes no effort to show cause to excuse this
procedural default, nor has he attempted to show that he
suffered “actual prejudice” from the alleged error that would
No. 98-6202 Murr v. United States 17
2Following oral argument, the Court allowed Petitioner to file a
supplemental brief only on the CCE issue. The government was permitted
to respond. On October 22, 1999, Petitioner filed a Supplemental Brief
and Addendum, in which Petitioner argued that the district court’s order
denying the § 2255 motion should be reversed because the district court
did not consider that the government allegedly knew all facts forming the
basis for the subsequent prosecution in Kentucky before the final
judgment was entered on the Tennessee charges. Petitioner did not argue
or provide any information regarding the CCE issue. Hence, Petitioner’s
supplemental brief and addendum was not submitted in compliance with
this Court’s order and we will not consider the arguments raised by
Petitioner in his Supplemental Brief. See, e.g., United States v. Universal
Management Servs., Inc. Corp., 191 F.3d 750, 759 (6th Cir. 1999) (citing
Wright v. Holbrook, 794 F.2d 1152, 1156 (6th Cir. 1986) (refusing to
consider argument raised for the first time by plaintiff in reply brief)).
III. Specific Unanimity Jury Instruction / Retroactive
Application of Richardson.
The district court’s failure to instruct the jurors that they
must unanimously agree about which narcotics violations
constitute the “continuing series” of predicate violations for
continuing criminal enterprise purposes, does not require that
Petitioner’s CCE conviction and sentence be vacated.2
In order to sustain a conviction for engaging in a CCE, the
government must prove (i) a felony violation of a federal
narcotics law; (ii) as a part of a “continuing series” of at least
three violations; (iii) “in concert with five or more persons”;
(iv) for whom the defendant is an organizer, supervisor or
manager; and (v) from which he derives substantial income or
resources. See 21 U.S.C. § 848(c)(1994). In Richardson v.
United States, 119 S. Ct. 1707, 1713 (1999), the Supreme
Court held for the first time that a jury must unanimously
agree on which specific violations constitute the “continuing
series” of three or more predicate violations required to prove
that a defendant engaged in a CCE. Moreover, the Court held
that the district court erred by failing to instruct the jurors that
the “violations” are themselves elements of the CCE and,
therefore, the jury was required to agree unanimously about
which three (or more) related drug crimes Petitioner
committed. Id. On appeal, Petitioner argues that Richardson

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16 Murr v. United States No. 98-6202
Petitioner has not made the required showing of factually
specific and compelling prejudice as a result of the joint trial.
He offers absolutely no evidence in support of his claim that
Lawson’s absence constituted extreme prejudice to him in
that the jury assumed that Lawson’s absence indicated that
Petitioner was guilty. Indeed, the facts on record indicate
otherwise. First, as this Court noted on direct appeal, the
district court issued curative instructions admonishing the jury
to disregard Lawson’s absence in determining the guilt or
innocence of any co-defendant, and instructing the jury to
consider only the evidence against each particular defendant
in determining his or her guilt or innocence. See Zafiro, 506
U.S. at 539 (stating that while separate trials may be
necessary if the risk of prejudice is high, “less drastic
measures, such as limiting instructions, often will suffice to
cure any risk of prejudice”); United States v. Mays, 69 F.3d
116, 120 (6th Cir. 1995) (holding that threat of “spillover
evidence” did not require severance where the district court
instructed the jury to consider the culpability of each
defendant separately).
Second, also noted on direct appeal, the jury acquitted co-
defendant William Baird, a close friend and business
associate of Lawson, although charged in multiple counts
along with Lawson. This strongly suggests that the jury made
the required individualized determination of each defendant’s
guilt, without allowing Lawson’s absence to prejudice his co-
defendants. See, e.g., United States v. Rugiero, 20 F.3d 1387,
1391 (6th Cir. 1994) (stating that the jury’s acquittal of some
co-conspirators while others were convicted demonstrated
that the jury was able to consider the evidence and charges
against each defendant individually).
Accordingly, the district court properly denied Petitioner’s
§ 2255 motion upon finding that Petitioner was not entitled to
severance from co-defendant Kenneth Lawson for purposes
of trial, even though Lawson was tried in absentia.
No. 98-6202 Murr v. United States 9
undermine the entire integrity of the trial, as required under
Frady. Id. at 168-70.
Petitioner failed to meet the standards of Frady; he is
therefore barred from raising his double jeopardy claim for
the first time on collateral attack under § 2255. See, e.g.,
Napier v. United States, 159 F.3d 956 (6th Cir. 1998)
(holding that claims raised for the first time on collateral
attack under § 2255 are waived, where petitioner fails to make
the required showing of both cause and actual prejudice for
his failure to raise these claims earlier); see also United States
v. Branham, 97 F.3d 835, 842 (6th Cir. 1996) (noting that
“[t]he defense of double jeopardy is personal and is capable
of waiver”).
In any event, Petitioner’s double jeopardy argument also
fails on the merits. The Double Jeopardy Clause provides
that no person shall “be subject for the same offense to be
twice put in jeopardy of life or limb.” U.S. C ONST . amend. V.
Double jeopardy protection “applies both to successive
punishments and to successive prosecutions for the same
criminal offense.” United States v. Dixon, 509 U.S. 688, 696
(1993). In determining whether a defendant has been
subjected to successive prosecutions for the same offense, this
Court applies the “same elements” test originally set forth in
Blockburger v. United States, 284 U.S. 299 (1932). “That test
asks whether each offense contains an element not contained
in the other. A defendant will be considered placed in double
jeopardy only if ‘every violation of one statute entails a
violation of another.’” United States v. Forman, 180 F.3d
766 (6th Cir. 1999) (citation omitted) (holding that a
defendant previously acquitted of obstruction of justice and
criminal contempt could be subsequently tried for theft of
government property and conversion, even though both
prosecutions arose from the same underlying conduct).
Petitioner urges this Court to follow Rashad v. Burt, 108
F.3d 677 (6th Cir. 1997), cert. denied, 522 U.S. 1075 (1998).
In Rashad, the arresting officers discovered cocaine in the
defendant’s house and car. As a result, the defendant was

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10 Murr v. United States No. 98-6202
tried separately for the cocaine found in the different
locations. Rashad, 108 F.3d at 679. This Court, applying the
“same evidence” test, held that the state violated defendant’s
double jeopardy rights. Id. at 680. However, the Forman
Court recently held that Rashad was limited to its unique
facts, in that “the issue . . . was whether the defendant had
committed one as opposed to two discrete violations of the
same statute, not whether the defendant was charged twice for
the same violation.” Forman, 180 F.3d at 769. In light of the
Supreme Court’s express rejection of the “same evidence”
test in Dixon, this Court held that Rashad “is to be limited in
its application to circumstances such as were present in the
case.” Id. at 770.
The circumstances here are distinguishable, given that the
two indictments charge different violations on different days,
in different places, which involve different people.
Comparison of the charges in the two prosecutions reveals no
double jeopardy violation. Both the offenses charged as well
as the underlying conduct that gave rise to the two separate
prosecutions are distinct. Petitioner’s conviction in the
Eastern District of Tennessee arose out of Petitioner’s sale of
cocaine to an individual named Bobby Freeman on two
specific occasions (July 4, 1989, and August 17, 1989) in
Tennessee. Accordingly, the government needed only to
prove that Petitioner knowingly or intentionally distributed
cocaine to Bobby Freeman in Tennessee on those two specific
dates.
Petitioner’s conviction in the Eastern District of Kentucky,
on the other hand, arose out of his role in obtaining cocaine in
Lexington, Kentucky, between August 1988 and May 1989,
with the intent to subsequently distribute the cocaine he
acquired. As noted, he was charged with a conspiracy count,
a CCE count, and eleven narcotics trafficking counts alleging
cocaine possession in Lexington with the intent to distribute.
Evidence at the Kentucky trial established that Petitioner
made or directed several trips into the Lexington area with his
co-conspirator, Jerry Parks, to buy cocaine from co-
defendants Victor Rojas and Kenneth Lawson, which
No. 98-6202 Murr v. United States 15
Second, Crosby does not alter the conclusion this Court
reached on direct appeal. Crosby does not directly apply to
Petitioner because Petitioner was present at trial; nor can
Petitioner claim that his trial was tainted by an error of
constitutional dimensions because Crosby held only that a
trial in absentia is prohibited by Federal Rule of Criminal
Procedure 43. The Crosby Court did not address whether a
trial in absentia is also prohibited by the Constitution.
Further, Petitioner cannot point to authority holding that
violation of a co-defendant’s rights under the Federal Rules
of Criminal Procedure constitutes a violation of Petitioner’s
constitutional rights.
Accordingly, we see no reason to depart from this Court’s
earlier conclusion that severance was not required. “As a
general rule, persons jointly indicted should be tried
together.” United States v. Stull, 743 F.2d 439, 446 (6th Cir.
1984). Further, “[t]he jury must be presumed capable of
sorting out the evidence and considering the cases of each
defendant separately.” United States v. Welch, 97 F.3d 142,
147 (6th Cir. 1996); United States v. Moore, 917 F.2d 215,
222 (6th Cir. 1990). The district court should grant severance
to properly joined defendants “only if there is a serious risk
that a joint trial would compromise a specific trial right of one
of the defendants, or prevent the jury from making a reliable
judgment about guilt or innocence.” Zafiro v. United States,
506 U.S. 534, 539 (1993); United States v. Long, 190 F.3d
471, 476 (6th Cir. 1999). Lastly, the defendant bears the
burden of producing “a strong showing of factually specific
and compelling prejudice” that will “mislead or confuse the
jury.” Moore, 917 F.2d at 221; United States v. Davis, 177
F.3d 552, 558 (6th Cir. 1999) (stating that “a defendant
seeking severance at trial from co-defendants bears a strong
burden and must demonstrate substantial, undue, or
compelling prejudice”). If the defendant is “able to show
some potential jury confusion, such confusion must be
balanced against society’s interest in speedy and efficient
trials.” Moore, 917 F.2d at 221.

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14 Murr v. United States No. 98-6202
instruction that each defendant’s case was to be
considered separately and, further, that Lawson’s flight
could not be used as evidence against anyone but him.
The jury appears to have heeded the court’s admonition,
as defendant William Baird, allegedly a close companion
of Lawson’s, was acquitted of conspiracy. Other
defendants were acquitted of some of the distribution
counts brought against them. Thus, the jury was plainly
able to view them as distinct individuals in rendering its
verdicts. As this was so, the district court did not abuse
its discretion in denying the motion to sever Lawson.
Phibbs, 999 F.2d at 1067-68.
On collateral attack, Petitioner urges this Court to
reconsider this conclusion in light of the Supreme Court’s
decision in Crosby v. United States, 506 U.S. 255 (1993). In
Crosby, the Court held that Federal Rule of Criminal
Procedure 43 prohibits the trial in absentia of a defendant who
is not present at the beginning of trial. Crosby, 506 U.S. at
753. Petitioner argues that because Lawson’s rights under the
Federal Rules of Criminal Procedure were violated by his trial
in absentia, Lawson’s case could not be tried. If, as Petitioner
claims, Lawson’s case could not be tried, Petitioner contends
that his case, in turn, could not be properly joined with an un-
triable case.
First, we note that on the issue of absentia, Petitioner does
not seek to assert the rights of Lawson. Rather, Petitioner
takes the position that his own entitlement to a fair trial was
denied by the adverse effect of co-defendant Lawson’s
absence. Therefore, Petitioner has standing to raise the
absentia issue. See United States v. Edmonson, 962 F.2d
1535, 1544 n.1 (10th Cir. 1992); United States v. Candoli,
870 F.2d 496, 501 (9th Cir. 1989) (stating that while
defendant could not challenge the propriety of a jury
instruction regarding the flight of her co-defendant, she could
challenge it on the ground that it prejudiced her right to a fair
trial).
No. 98-6202 Murr v. United States 11
Petitioner intended to later sell to his own customers. This
conduct gave rise to the eleven substantive cocaine offenses
charged in the Eastern District of Kentucky indictment:
possession of cocaine with the intent to distribute.
Further, there is no double jeopardy problem under
Blockburger. Petitioner’s violation of federal drug laws in
Kentucky were distinct from his criminal acts in Tennessee.
A jury could find that Petitioner distributed cocaine to Bobby
Freeman on July 4 and August 18, 1989, in Tennessee, and
not find that he repeatedly possessed cocaine in Lexington
with intent to distribute, as alleged in the Kentucky
indictment. Similarly, a jury could easily find that Petitioner
committed the substantive narcotics violations in Kentucky
without having sold cocaine to Bobby Freeman in Tennessee,
as alleged in the Tennessee indictment. Whereas the offenses
charged had different elements and arose out of separate
conduct, conviction in one case simply would not require
conviction in the other. As Magistrate Judge James B. Todd
concluded in his Report and Recommendation:
Here, the two indictments charge different violations on
different days, in different places, which involve different
people. The simple fact that all of the charges against
Murr involve cocaine does not automatically invoke a
threat of double jeopardy. The Tennessee [distribution]
convictions and the Kentucky possession with intent to
distribute convictions (counts 2 through 9 and 11) clearly
involve distinctive transactions and conduct which are all
violative of federal laws. Therefore, the Kentucky
convictions for possession with intent to distribute do not
pose any threat to the Defendant’s privilege against
double jeopardy.
(J.A. at 171-72.)
Lastly, we note that Petitioner’s CCE conviction in the
Eastern District of Kentucky following his Tennessee
conviction on cocaine distribution charges, did not violate
double jeopardy principles, even if his cocaine sales to Bobby
Freeman were part of the wide-ranging conspiracy alleged in

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12 Murr v. United States No. 98-6202
Counts 1 and 13 of the Kentucky indictment. “A substantive
crime and a conspiracy to commit that crime are not the ‘same
offense’ for purposes of double jeopardy, even if based upon
the same underlying indictments, ‘because the essence of a
conspiracy offense is in the agreement or confederation to
commit a crime.’” United States v. Medina, 992 F.2d 573,
588 (6th Cir. 1993) (quoting United States v. Felix, 503 U.S.
378, 389-90 (1992)). In Felix, the Supreme Court held that
the defendant’s conspiracy conviction did not violate his
double jeopardy rights even though he had already been
prosecuted for two of the predicate acts supporting the
conspiracy charge. Felix, 503 U.S. at 391-92.
We believe the same holds true here. Since Petitioner’s
CCE conviction required proof of various elements entirely
absent from the cocaine distribution offenses alleged in the
Eastern District of Tennessee indictment, there is no double
jeopardy violation. See Garrett v. United States, 471 U.S.
773, 779 (1985) (stating that “Congress intended the CCE
provision to be a separate criminal offense which was
punishable in addition to, and not as a substitute for, the
predicate offenses”); United States v. Smith, 963 F.2d 892,
894 (6th Cir. 1992) (holding that the defendant’s conviction
on a marijuana charge did not violate double jeopardy
principles, even though that charge had been one of the
predicate acts identified under the CCE charge of which he
had previously been convicted). Accordingly, the district
court properly denied Petitioner’s § 2255 motion upon finding
that his double jeopardy rights were not violated by his CCE
and cocaine possession with intent to distribute convictions in
Kentucky following his conviction on two cocaine
distribution counts in Tennessee.
II. Severance from co-defendant Kenneth Lawson for
purposes of trial.
Petitioner contends that the district court’s refusal to grant
his motion to sever Lawson’s case rendered his trial
No. 98-6202 Murr v. United States 13
1Before moving to the merits, we note that Petitioner’s argument may
be procedurally barred. Petitioner did not raise this claim in his initial
§ 2255 motion. Rather, it was first raised in his supplemental objections
to the magistrate judge’s final Report and Recommendation. The
magistrate thus never had the opportunity to consider this issue. Courts
have held that while the Magistrate Judge Act, 28 U.S.C. § 631 et seq.,
permits de novo review by the district court if timely objections are filed,
absent compelling reasons, it does not allow parties to raise at the district
court stage new arguments or issues that were not presented to the
magistrate. See United States v. Waters, 158 F.3d 933, 936 (6th Cir.
1998) (citing Marshall v. Chater, 75 F.3d 1421, 1426-27 (10th Cir. 1996)
(“issues raised for the first time in objections to magistrate judge’s report
and recommendation are deemed waived”)); see also Cupit v. Whitley, 28
F.3d 532, 535 (5th Cir. 1994); Paterson-Leitch Co., Inc. v. Massachusetts
Mun. Wholesale Elec. Co., 840 F.2d 985, 990-91 (1st Cir. 1988); Anna
Ready Mix, Inc. v. N.E. Pierson Constr. Co., Inc., 747 F. Supp. 1299,
1302-03 (S.D. Ill. 1990). Hence, Petitioner’s failure to raise this claim
before the magistrate constitutes waiver. Nonetheless, Petitioner’s claim
fails on the merits.
fundamentally unfair because he was prejudiced by Lawson’s
absence. We disagree.1
This Court rejected the same argument on direct appeal
when it was raised by co-defendant Diane Whited, and instead
concluded that the district court did not abuse its discretion in
denying the severance motion:
In the instant case, a large portion of the evidence
presented, including that related to Lawson, was
applicable to each defendant to show the scope of the
charged conspiracy. While Lawson was not there to
“challenge” his alleged participation at trial, his co-
defendants had the opportunity to convince the jury that
they were not associated with him.
The fact that a defendant sought to escape prosecution is
usually relevant in establishing culpability, so we
understand Whited’s anxiety about “transferred guilt”
due to Lawson’s flight. However, the district court
neutralized any adversity Lawson may have caused his
co-defendants by his actions. It gave a cautionary

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