Mark Ross v. United States of America

1
RECOMMENDED FOR FULL-TEXT PUBLICATION
Pursuant to Sixth Circuit Rule 206
ELECTRONIC CITATION: 2003 FED App. 0273P (6th Cir.)
File Name: 03a0273p.06
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
_________________
MARK ROSS,
Petitioner-Appellant,
v.
UNITED STATES OF AMERICA,
Respondent-Appellee.
X
-
-
-
->
,
-
-
N
No. 01-4129
Appeal from the United States District Court
for the Southern District of Ohio at Columbus.
No. 00-01358—George C. Smith, District Judge.
Argued: June 11, 2003
Decided and Filed: August 6, 2003
Before: KEITH, BATCHELDER, and CLAY, Circuit
Judges.
_________________
COUNSEL
ARGUED: Kevin M. Schad, SCHAD & COOK, Indian
Springs, Ohio, for Appellant. Robyn Jones Hahnert,
UNITED STATES ATTORNEY, Columbus, Ohio, for
Appellee. ON BRIEF: Kevin M. Schad, SCHAD & COOK,
Indian Springs, Ohio, for Appellant. Robyn Jones Hahnert,
2 Ross v. United States No. 01-4129
UNITED STATES ATTORNEY, Columbus, Ohio, for
Appellee.
_________________
OPINION
_________________
CLAY, Circuit Judge. Petitioner Mark Ross appeals an
order denying his request for habeas relief pursuant to 28
U.S.C. § 2255, following Petitioner’s conviction for
conspiracy to distribute cocaine and possession with intent to
distribute cocaine in violation of 21 U.S.C. § 846, conspiracy
to commit money laundering in violation of 18 U.S.C.
§ 1956(h), and two counts of money laundering in violation
of 18 U.S.C. § 1956(a)(1)(B)(i). For the reasons set forth
below, we AFFIRM the district court.
FACTS
Sometime in either late 1994 or early 1995, Donald Mohler,
Jr., Robert Long, and Roberto Camero began smuggling
marijuana into the United States from the Bahamas. Robert
Long and Mohler brought loads of fifty to 200 pounds of
marijuana to Columbus, Ohio, which they distributed through
Mohler’s aunt, Karen Climer Collins.
After the arrest of several of their couriers, Mohler and
Robert Long stopped dealing marijuana and began selling
cocaine. Mohler and Robert Long began bringing to
Columbus cocaine supplied by Rodolpho Fernandez. Robert
Long and Mohler concluded their partnership in early 1988.
At that point, Karen Collins (hereinafter referred to as Karen
Long) married Robert Long, and the Longs continued to deal
cocaine supplied by Fernandez.
Initially, Fernandez fronted the Longs one-half kilogram of
cocaine every two months. After about two years, Fernandez
began fronting the Longs an entire kilogram every two

-- 1 of 10 --

No. 01-4129 Ross v. United States 3
1No relation to Petitioner.
months. This continued until 1992, when Mohler contacted
Robert Long again. Mohler could give Robert Long a better
price on the cocaine than Robert Long received from
Fernandez, so the Longs began dealing with Mohler instead.
On October 1, 1993, undercover police arrested Patrick
Paden, one of Mohler’s couriers, with one kilogram of
cocaine.
Attempting to steal from his supplier, Juan Sierra, Mohler
told Sierra that he lost two kilograms in the arrest. Sierra
discovered Mohler’s deception and terminated their
relationship. Sierra then asked Robert Long to assume
Mohler’s role. The Longs paid Sierra $27,000, and Sierra
delivered one kilogram for the money and fronted a second
kilogram.
In November of 1993, the Longs purchased a new home on
540 Blue Valley Road, outside of Lancaster, Ohio, for
$87,000. The Longs initially occupied the Blue Valley
residence in April of 1994, but then moved to Florida in
December of 1994. The Longs sold the Blue Valley property
in April of 1995 for $175,000. Petitioner, an attorney,
handled the closing on the Longs’ behalf.
After the Longs moved to Florida, they directed their Ohio
cocaine business through Donald and Marilyn Ross,1 who
lived in central Ohio. Donald Ross made approximately two
trips each month to Tennessee—one to pick up cocaine from
Sierra, and another to deliver payment. Donald and Marilyn
Ross handled loads of up to eight kilograms per month.
In exchange for their assistance, the Rosses received a
portion of the profits and a home at 1173 Faber Avenue.
Petitioner handled all paperwork related to the purchase and
sale of the Faber property in a manner intended to disguise the
transaction’s real purpose. Karen Long testified that
4 Ross v. United States No. 01-4129
“[Petitioner] knew the house was being bought with drug
money. He said he would come up with something. Bob
[Robert Long] said [Petitioner] worked on it and that’s when
he made the contracts.” (J.A. at 625-26.)
Before preparing the Faber paperwork, Petitioner received
quantities of cocaine for personal use as gifts from the Longs.
Donald Ross and Robert Long delivered the drugs. Robert
Long later claimed that he sometimes paid Petitioner for his
legal services with cocaine.
According to Karen Long, Petitioner knew everything
about the Longs’ drug business. She and her husband spoke
with Petitioner about their enterprise every time they met.
Karen Long passed information from Petitioner to the Rosses
that helped the Rosses evade law enforcement. At one point,
for instance, Karen Long told the Rosses to stop using
telephones because Petitioner had a tip that the Rosses were
under investigation.
On July 16, 1995, Karen Long told the Rosses to take
$20,000 in cocaine proceeds to Karen Long’s mother, so that
her mother could post bond for Karen Long’s nephew,
Charles Sullivan, Jr. Petitioner told Karen Long to post the
bond because he feared Sullivan might start talking to police
about the Longs’ drug trade. Karen Long later testified that
she and her husband usually followed Petitioner’s advice.
On July 29, 1995, law enforcement executed a number of
search warrants at homes belonging to Karen Long, members
of her family, and Donald and Marilyn Ross. Petitioner
contacted the Longs in Florida, informed them of the raids,
and traveled to Florida to meet with them. At Petitioner’s
direction, the Longs sold many of their assets and returned to
Ohio.
The Longs gave Petitioner $60,000 from the sale of their
assets. After Petitioner received the money, he placed liens

-- 2 of 10 --

No. 01-4129 Ross v. United States 5
on the Longs’ remaining pieces of real estate to prevent the
government from attaching them.
A grand jury subpoenaed records of all monies paid to,
given to, or handled by Petitioner for the Longs. On
March 28, 1996, Petitioner prepared and produced two letters
summarizing monies the Longs paid to him for his activities.
In those letters, Petitioner indicated that the Longs paid him
$5815 between May 29, 1990 and July 12, 1995, and $5800
from August 4, 1994 until February 2, 1996. These estimates
dramatically understated the amount of money Petitioner
actually received because Petitioner did not include the
$60,000.
The Rosses obtained counsel, Michael Holbrook, a friend
of Petitioner’s. Holbrook discussed with them the possibility
of cooperating before indictment. While Holbrook
represented the Rosses, Petitioner organized a rendezvous at
a local bar with both the Rosses and the Longs without
Holbrook present. By chance, Holbrook entered the bar, saw
the meeting, and argued with Petitioner about speaking with
his clients without his knowledge. Shortly thereafter,
Holbrook ceased representing the Rosses.
Petitioner also met with Kathy MacDonald, who worked
with the Rosses in their distribution network. Petitioner told
MacDonald not to say anything to anyone. MacDonald
asked Petitioner if he was scared, because she knew he
received cocaine in exchange for legal services performed for
the Longs. Petitioner told her he was not worried because the
authorities could only convict him for money laundering.
Two other individuals who worked for the Rosses, Sally
and Lonnie Huff, met with Petitioner. Petitioner told the
Huffs that perjury would result in nothing more than a fine or
a very light sentence. Additionally, Petitioner informed the
Huffs that the government could revoke any immunity it
offered once the Huffs incriminated themselves by testifying.
The Huffs also met with Karen Long and Petitioner in
6 Ross v. United States No. 01-4129
Petitioner’s office. During these meetings, Petitioner and
Karen Long developed stories the Huffs could relay in the
event the government offered them immunity or otherwise
compelled them to testify. Following their instructions, the
Huffs later told the grand jury they knew nothing of the
Longs’ drug business.
PROCEDURAL HISTORY
On May 22, 1996, the grand jury indicted the Longs and
nineteen co-conspirators on numerous counts of drug
trafficking and money laundering-related offenses. Until
September of 1996, Petitioner continued to represent Robert
Long. Karen Long retained Michael McGinley. On
September 5, 1996, the grand jury returned a Superseding
Indictment that added ten additional defendants, including
Petitioner. In light of his indictment, Petitioner moved to
withdraw as Robert Long’s counsel. The district court
granted the motion on September 27, 1996. On March 6,
1997, prior to trial, Robert Long and Rodolfo Fernandez, two
of the Ross’ co-defendants, requested a separate trial. They
argued that the evidence introduced against the co-defendants
would unfairly prejudice them. The court rejected their
respective motions.
On March 5, 1997, the day before trial was scheduled to
begin, Petitioner filed a motion for severance requesting that
he be tried separately from Robert Long. Petitioner argued
that he planned to call Robert Long as a witness in his
defense.
At the trial, Petitioner testified that he represented the
Longs. He admitted receiving gifts of cocaine from Robert
Long, delivered either by Donald Ross or Robert Long
himself. Petitioner acknowledged handling the Longs’
financial transactions and conceded that “it wouldn’t take a
rocket scientist to know that they are somehow involved in
[the drug trade].” (J.A. at 965.) Yet throughout his
testimony, Petitioner denied both that he knew the extent of

-- 3 of 10 --

No. 01-4129 Ross v. United States 7
2During the defense case, Petitioner announced at sidebar that he
intended to call Robert Long as a witness. At that time, Robert Long
asserted his Fifth Ame ndment privilege and refused to testify.
the Longs’ cocaine enterprise and that he willfully
participated in any of the Longs’ criminal activity. Counsel
for Robert Long represented at a pretrial conference that he
did not know whether his client would invoke his Fifth
Amendment privilege if called as a witness in a joint trial.2
The district court denied the request for severance.
Beginning on March 6, 1997, the government jointly tried
Petitioner along with several co-conspirators including Robert
Long and Rodolfo Fernandez. Requests for severance were
renewed throughout the trial and denied. The trial lasted nine
weeks and involved more than seventy witnesses. On April
29, 1997, the jury convicted Petitioner, Robert Long, and
Fernandez on all counts. Petitioner received a ten-year
sentence. In his appeal to this Court,
[Petitioner] challenge[d] his convictions on the grounds
that (1) he was precluded from fully presenting his
defense because of the assertion of attorney-client
privilege on behalf of his co-defendant Robert Long, and
(2) the evidence was insufficient to show he knew of and
joined the conspiracies. With respect to his sentence,
[Petitioner] claim[ed] the district court erred by
(1) denying him a reduction in his base offense level
either for acceptance of responsibility or for being a
minimal participant in the conspiracy; (2) granting an
enhancement for using a special skill in the commission
or concealment of the offense; (3) finding he was
responsible for laundering funds in excess of $100,000;
and (4) denying him a downward departure because of
factors not adequately taken into account by the
guidelines.
8 Ross v. United States No. 01-4129
United States v. Ross, 190 F.3d 446, 448 (6th Cir. 1999). On
July 27, 1999, we affirmed Petitioner’s conviction. Id. With
regard to his right to present a defense claim, we determined
that Petitioner “was not denied his right to present a defense;
rather, the jury did not believe him.” Id. at 453. Petitioner
petitioned for certiorari, which the Supreme Court denied on
November 29, 1999. See United States v. Ross, 528 U.S.
1033 (1999).
Petitioner filed his habeas petition on November 28, 2000.
Petitioner attached several exhibits, including an affidavit
from Holbrook. Holbrook, who testified for the government
at Petitioner’s trial, claimed that the U.S. Attorney’s Office
contacted him prior to trial and asked him to speak with
Petitioner about a plea bargain. According to Holbrook, the
Assistant U.S. Attorney, Robyn Jones Hahnert, “stated that
there was no need for [Petitioner] to go to jail, and [sic] the
possibility of avoiding him permanently losing his license.”
(J.A. at 465.) Holbrook then relayed this information to
Petitioner and his counsel, Lew Williams.
According to Holbrook, the meeting revealed that Williams
did not understand the case or the sentencing guidelines and
could not properly advise his client. Holbrook further
indicated that he told Petitioner that “he was in real
trouble. . . . [because] Lew had no idea about anything on
[sic] the case and that he needed to be educated real fast
because it was too late to get another lawyer.” (J.A. at 466.)
Holbrook also claimed that Hahnert told him that Williams
never contacted her about a possible plea. Finally, Holbrook
expressed concern over the unprofessional manner in which
Williams cross-examined him at Petitioner’s trial.
Holbrook’s affidavit noted that “[i]n a casual meeting in the
coffee shop later that day, I was privy to a comment made to
me by an attorney for one of the co-defendants about Lew’s
performance. He questioned his preparation . . . . I was
already disgusted with Lew and did not say anything.” (Id.)

-- 4 of 10 --

No. 01-4129 Ross v. United States 9
3Petitioner did not sign or notorize the copy he served on the United
States.
Petitioner also attached his own affidavit to his habeas
petition.3 Petitioner claims that he asked Williams investigate
the plea offer but that Williams did not do so until the day of
trial, at which point the government no longer expressed
interest. Petitioner claimed that he would have pleaded guilty
had he received a plea offer that did not involve incarceration.
The government responded with an affidavit from Hahnert.
Hahnert acknowledged that during a pretrial meeting with
Holbrook, Holbrook expressed concern that his friend,
Petitioner, did not fully grasp the severity of his situation.
Hahnert advised Holbrook that she offered Petitioner a plea
bargain that would require he plead to a money laundering
charge. If Petitioner cooperated, the government would
include a provision for a downward departure pursuant to
U.S.S.G. § 5K1.1. Hahnert also averred that the plea offer
never included a recommendation of probation, nor did she
ever indicate that Petitioner might not lose his license to
practice law. Rather, Hahnert stated that the district court
had discretion to place Petitioner on probation if the
government made a § 5K1.1 motion, and Petitioner had a
better chance to regain his license in the future if he pleaded
guilty to a money laundering charge instead of a cocaine
distribution charge. Finally, Hahnert denied asking Holbrook
to take the plea offer to Petitioner on behalf of the U.S.
Attorney’s Office.
Petitioner attached a second affidavit from Holbrook to the
reply brief he filed with the district court. Holbrook claimed:
Robyn [Hahnert] did not say that she would recommend
neither [sic] probation nor keeping his license to practice
law. She did discuss that a plea to laundering, a Base
Level 17 offense, would receive a 5K motion. With
acceptance [of responsibility] and potential for a minor
10 Ross v. United States No. 01-4129
4In his brief, Petitioner argues he received an unconstitutional
sentence in violation of Apprendi v. New Jersey, 530 U.S. 466 (2000).
Petitioner’s counsel conceded Apprendi’s inapp licability at oral argument,
thus we need not address Petitioner’s Apprendi claim in this opinion.
role this would have placed [Petitioner] in the area of
potential probation or half way house. Both attorneys
present were aware of the guideline ramifications of the
plea offer meant [sic]. There was not a recommendation
[sic] offer but the comment that [Petitioner] did not
necessarily need to go to jail.
(J.A. at 427.) Holbrook also clarified that “Robyn did not say
that she would recommend anything about the license” and
that he (Holbrook) “was not acting as an agent for the
Government” when he relayed information to Petitioner. (Id.)
On July 3, 2001, the magistrate judge issued a Report and
Recommendation recommending that the district court deny
the § 2255 petition. Petitioner filed objections to that Report
on July 13, 2001. On September 24, 2001, without an
evidentiary hearing, the district court adopted the Report and
Recommendation.
On October 3, 2001, Petitioner filed a timely notice of
appeal. The district court granted Petitioner a certificate of
appealability on November 29, 2001.
DISCUSSION
Initially, Petitioner argues that he received ineffective
assistance of counsel because his attorney failed to inform
him of a plea offer that he would have accepted. The district
court rejected this contention on the briefs, and Petitioner
asserts he should have at least received an evidentiary
hearing. Petitioner also raises a litany of other less substantial
ineffective assistance arguments.4

-- 5 of 10 --

No. 01-4129 Ross v. United States 11
I.
We begin with Petitioner’s claim that he should have at
least received an evidentiary hearing before the district court
rejected his argument that his counsel’s alleged failure to
relay a plea offer constituted ineffective assistance. This
Court reviews a district court’s decision to deny a § 2255
ineffective assistance of counsel claim without an evidentiary
hearing for abuse of discretion. Blanton v. United States, 94
F.3d 227, 235 n.2 (6th Cir. 1996); see also Etheridge v.
United States, 241 F.3d 619, 622 (8th Cir. 2001); Prewitt v.
United States, 83 F.3d 812, 820 (7th Cir.1996).
The district court should always consider the importance of
a hearing in light of what the proper resolution of a particular
case requires. United States v. Todara, 982 F.2d 1025, 1030
(6th Cir. 1993). If the record includes a factual dispute, the
district court “must hold a hearing to determine the truth of
the [petitioner’s] claims.” Turner v. United States, 183 F.3d
474, 477 (6th Cir. 1999). Petitioner is not entitled to a
hearing, however, “if the files and records of the case
conclusively show that he is not entitled to relief.” Green v.
United States, 65 F.3d 546, 548 (6th Cir. 1995).
Petitioner’s primary ineffective assistance of counsel claim
is that his attorney failed to act on a plea offer made by the
U.S. Attorney’s Office prior to trial. In support of his
argument, Petitioner cites the Holbrook affidavit, in which
Holbrook swears, according to Petitioner, “that the AUSA
had contacted him prior to trial, and indicated that she would
offer the Appellant a plea whereby he could possibly retain
his license.” (Pet’r Br. at 8.) Holbrook then relayed his
communications to Petitioner and his counsel. Since the U.S.
Attorney’s office denies having made an offer that would not
involve jail time and possibly allow Petitioner to retain his
license, Petitioner argues a factual dispute exists that warrants
an evidentiary hearing.
12 Ross v. United States No. 01-4129
5Petitioner also purpo rts to deserve an evid entiary he aring on his
other ineffective assistance claims, discussed b elow. This argument is
without merit because Petitioner fails to identify any evidence that he
could have presented in an evidentiary hearing that the district court did
not consider before denying his petition. Petitioner bases all of his other
ineffective assistance claims o n the rec ord to which the district court had
access.
The government attached Hahnert’s affidavit to its reply
opposing the § 2255 petition. Hahnert averred that she never
made a plea offer to Holbrook that would guarantee or even
recommend probation. Hahnert acknowledged possibly
allowing Petitioner to plead to money laundering charges and
receive a § 5K1.1 motion for substantial assistance. This
would permit Petitioner to argue to the sentencing court that
he should receive probation. Again, Hanhert never offered to
recommend probation or to help Petitioner retain his license.
In Petitioner’s reply brief, Petitioner submitted a second
affidavit from Holbrook that clarified his earlier testimony.
Holbrook concurs that “Robyn [Hahnert] did not say that she
would recommend []either probation nor keeping his license
to practice law.” (J.A. at 427.) Rather, Holbrook concedes
that he assumed a plea to money laundering and a § 5K1.1
motion would reduce Petitioner’s base offense level to the
point where he could, theoretically, avoid prison. Thus,
Holbrook does not claim Hahnert ever offered probation or to
help Petitioner keep his license.
Since Holbrook’s supplementary affidavit is entirely
consistent with Hahnert’s affidavit, there is no factual dispute,
rendering a hearing unnecessary.5 See Green, 65 F.3d at 548.
Thus, the district court did not abuse its discretion by
declining to hold an evidentiary hearing concerning
Petitioner’s ineffective assistance of counsel claims.

-- 6 of 10 --

No. 01-4129 Ross v. United States 13
II.
Like others in his position, this Petitioner adopts the
“kitchen sink” approach to habeas by alleging that virtually
every aspect of his trial counsel’s representation was
improper and prejudicial.
Petitioner’s other ineffective assistance of counsel claims
present mixed questions of law and fact that we review de
novo. United States v. Jackson, 181 F.3d 740, 744 (6th Cir.
1999); Lucas v. O'Dea, 179 F.3d 412, 416 (6th Cir. 1999). In
Strickland v. Washington, 466 U.S. 668 (1984), the Supreme
Court articulated a two-part test for determining whether an
attorney rendered ineffective assistance. Id. at 689. As the
Court explained,
First, the defendant must show that counsel’s
performance was deficient. This requires showing that
counsel made errors so serious that counsel was not
functioning as the ‘counsel’ guaranteed the defendant by
the Sixth Amendment. Second, the defendant must show
that the deficient performance prejudiced the defense.
This requires showing that counsel’s errors were so
serious as to deprive the defendant of a fair trial, a trial
whose result is reliable.
Id. at 687.
With respect to the deficient performance component of the
two-part test, the Strickland Court noted that judicial review
of a lawyer’s performance should be “highly deferential.” Id.
at 689. According to Strickland, “[t]he proper measure of
attorney performance remains simply reasonableness under
prevailing professional norms.” Id. at 688. As the Supreme
Court explained, “[b]ecause of the difficulties inherent in
making the evaluation, a court must indulge a strong
presumption that counsel’s conduct falls within the wide
range of reasonable professional assistance; that is, the
presumption that, under the circumstances, the challenged
14 Ross v. United States No. 01-4129
action might be considered sound trial strategy.” Id. at 689;
see also Martin v. Rose, 744 F.2d 1245, 1249 (6th Cir. 1984).
To establish prejudice, Petitioner must show a reasonable
probability that, but for his attorney’s errors, the proceedings
would have produced a different result. Strickland, 466 U.S.
at 694. When applying Strickland, if we can more easily
dispose of an ineffective assistance claim based on lack of
prejudice, we should follow that route. Watson v. Marshall,
784 F.2d 722, 726 (6th Cir. 1985).
Generalizing somewhat, we can say that Petitioner makes
three basic arguments: (1) counsel failed to negotiate a plea;
(2) counsel did not timely move for a motion to sever; and
(3) counsel failed to investigate Petitioner’s case and prepare
for trial. Before analyzing in detail whether Petitioner has
established prejudice with respect to any of these three issues,
we note that Petitioner, who admits to drug use, failed to
appear for trial twice because he “overslept.” On the stand,
Petitioner acknowledged handling the Longs’ financial
transactions and conceded that “it wouldn’t take a rocket
scientist to know that they are somehow involved in [the drug
trade].” (J.A. at 965.) These considerations along with the
strength of the case against Petitioner make it likely that the
jury would have found him guilty even assuming Petitioner’s
counsel could have done a better job.
A.
As discussed already, Petitioner claims he received
ineffective assistance because his counsel failed to negotiate
a plea that would have resulted in a sentence of probation
rather than incarceration. Petitioner would only accept an
offer that guaranteed probation—after all, Holbrook informed
Petitioner personally that the government might consider an
offer that would leave open a distant possibility of probation
and neither Petitioner nor his counsel pursued that

-- 7 of 10 --

No. 01-4129 Ross v. United States 15
6No tably, Holbrook emphasized in both affidavits that Petitioner did
not understand the severity of his situation. That may explain Petitioner’s
position.
opportunity.6 Petitioner’s counsel was not ineffective for
failing to react to a no-jailtime offer that the government
never made, and Petitioner offers no evidence that his counsel
(or anyone else) could have negotiated a plea that would have
guaranteed no incarceration. This is particularly evident
given Petitioner’s significant role in the drug conspiracy.
B.
Petitioner also argues that his attorney did not provide
effective assistance because he did not timely move for a
separate trial or provide the district court sufficient evidence
to order a separate trial. Neither party disputes that Mark
Williams, Petitioner’s counsel, filed a motion requesting a
separate trial on March 5, 1997, the day before the trial began.
The untimeliness of the motion did not prejudice Petitioner
because the district court did not deny it as untimely filed.
Rather, the district court held a conference with counsel about
the motion, then entered an order denying it on March 10,
1997, because Petitioner had not demonstrated that a joint
trial would prejudice him.
Petitioner argues that Williams did not adequately support
the motion to sever because he failed to obtain an affidavit
from his co-defendant, Robert Long, that would have
expressed Long’s willingness to testify on Petitioner’s behalf
in a severed trial. Specifically, Petitioner claims now (as he
did before the trial court) that a joint trial deprived him of the
right to call co-defendant Robert Long as a witness.
Along with his pretrial motion to sever, Petitioner’s counsel
attached an affidavit from Max Kravitz, who interviewed
Robert Long. Kravitz set forth what he believed Robert Long
would say on Defendant’s behalf. Robert Long presumably
16 Ross v. United States No. 01-4129
7Put differently, Petitioner cannot show prejudice without
demonstrating that the trial court would have granted the motion to sever,
and the trial court would not have granted the motion to sever unless, inter
alia, Petitioner could show Robert Long would have actually testified in
a separate trial. See, e.g., United States v. Butler, 611 F.2d 1066, 1071
(5th Cir. 1980).
would have testified that Petitioner had no knowledge of
Robert Long’s drug conspiracy. The court consulted with
Robert Long’s counsel to determine whether Robert Long
would testify in Petitioner’s defense. Robert Long’s counsel
represented that he did not know whether his client would
assert his Fifth Amendment privilege if called as a witness in
a joint trial. Subsequently, during trial, Robert Long asserted
his Fifth Amendment privilege when Williams called him as
a witness. Thus, no matter what Robert Long would have
said, Petitioner was not prejudiced unless Petitioner can show
that Robert Long would have testified on his behalf had the
trial court granted the motion to sever.7 With his habeas
petition, Petitioner provided the court with an unsworn
question and answer statement in which (now four years later)
Robert Long answers “yes” to the question: “Prior to your
joint trial with [Petitioner], had you obtained separate trials,
would have you have testified on [Petitioner’s] behalf?” (J.A.
at 469.) This statement is not adequate to demonstrate either
that Robert Long would have testified in a separate trial if the
government tried Petitioner first or that if the trial court knew
Robert Long would testify in separate trial, it would have
granted Petitioner’s motion to sever.
In general, “[t]here is a preference in the federal system for
joint trials of defendants who are indicted together.” Zafiro
v. United States, 506 U.S. 534, 537 (1993). Defendants do
not have a right to separate trials “simply because they have
a better chance of acquittal if they [are] tried alone.” United
States v. Brenig, 70 F.3d 850, 853 (6th Cir. 1995). Courts
employ a stringent test to determine whether a defendant
deserves a severance. The defendant “must demonstrate: (1) a
bona fide need for the testimony; (2) the substance of the

-- 8 of 10 --

No. 01-4129 Ross v. United States 17
testimony; (3) its exculpatory nature and effect, and (4) that
the co-defendant will in fact testify if the cases are severed.”
United States v. Butler, 611 F.2d 1066, 1071 (5th Cir. 1980);
see also United States v. Smith, 46 F.3d 1223, 1231 (1st Cir.
1995) (using the same four factors); United States v. Pepe,
747 F.2d 1632, 1651 (11th Cir. 1984) (using the same four
factors).
Petitioner fails this test for two reasons. First, Robert
Long’s testimony would not be exculpatory. According to the
question and answer sheet:
QUESTION: Assuming, without admitting, that you
were involved in illegal activities in
Florida, was [Petitioner] aware of those
activities prior to August, 1995?
ANSWER: To my knowledge [Petitioner] was not
aware of anything prior to 1995.
(J.A. at 469.) Yet the conspiracies for which the jury
convicted Petitioner extended well beyond 1995 and, in fact,
beyond Petitioner’s indictment in 1996.
Second, Petitioner failed to prove that Robert Long would
have testified had the court granted a severance. At the time,
Robert Long faced a litany of serious drug and conspiracy
charges, and prosecutors could have used his testimony
against him if the government went to trial against Petitioner
first. Robert Long’s question and answer statement never
asserts that he would have testified on Petitioner’s behalf
regardless of the order in which their trials occurred. Since
Petitioner has not proven otherwise, one can assume Robert
Long would not have waived his Fifth Amendment privilege
at his peril. We have already held that a co-conspirator’s
promise to testify only if he receives his trial first is not a
basis for a severance. See United States v. Blanco, 844 F.2d
344, 352-53 (6th Cir. 1988) (“Here, although Fresneda
purported to waive his Fifth Amendment privilege, the waiver
18 Ross v. United States No. 01-4129
was illusory because it was conditioned upon his being tried
before Spinola.”).
C.
Petitioner cites a litany of alleged trial errors including
(1) counsel’s failure to object to elements of Karen Long’s
testimony; (2) counsel’s failure to meet with Petitioner during
trial and his failure to adequately prepare for trial;
(3) counsel’s failure to cross-examine Donald Ross, and
(4) counsel’s failure to object to the introduction of irrelevant
or erroneous evidence. None of these allegations helps
Petitioner demonstrate prejudice.
First, Petitioner argues that counsel should have objected to
Karen Long’s testimony about Petitioner’s knowledge of the
Longs’ cocaine business. Karen Long testified that Petitioner
knew about the Longs’ drug enterprise, but she never
explained when he learned of their involvement. Petitioner’s
counsel did not object to her vague response or attempt to
clarify the issue during cross-examination. Regardless, her
statements to government investigators indicate Karen Long
would have testified that Petitioner knew the Longs
distributed cocaine before their arrest in August of 1995.
Second, in his brief, Petitioner asserts that “[c]ounsel was
also ineffective for failing to adequately meet with the
[Petitioner] during trial. During the three weeks [sic] long
trial, counsel met with [Petitioner] only three times.” (Pet’r
Br. at 19.) Petitioner offers no citation to the record to
support his conclusion. An allegation entirely unsupported by
the record cannot meet the prejudice component of the
Strickland inquiry.
Petitioner also claims that Williams failed to adequately
prepare for trial. In particular, Petitioner alleges that
Williams failed to review sixteen boxes of discovery. Again,
however, nothing in the record corroborates this allegation.
Holbrook did state that counsel appeared unprepared for trial,

-- 9 of 10 --

No. 01-4129 Ross v. United States 19
but Holbrook (a witness) did not attend the trial. Holbrook
disagreed with how Williams examined him on the stand, but
as the witness, Holbrook may not have the best perspective on
how counsel should have questioned him. Finally, Holbrook
heard a derogatory comment about Williams’ performance
from an unidentified person in a restaurant. Like the other
unsubstantiated allegations, this gossip does not help
Petitioner meet his burden.
Third, on direct examination, Donald Ross testified that his
wife did not accompany him when he delivered two ounces
of cocaine to Petitioner in his office. This contradicted the
testimony of Marilyn Ross, who claimed that she was present
and heard Petitioner claim he would sell the cocaine. Also on
direct examination, Donald Ross described the Faber property
transaction differently than Karen Long did.
Petitioner now claims that if counsel had cross-examined
Donald Ross, “he could have gotten out before the jury that
the [Petitioner] never stated he was going to sell the two
ounces of cocaine delivered to him, contradicting Marilyn
Ross’ story.” (Pet’r Br. at 19.) Petitioner also claims that
“Don Ross could have refuted Karen Long’s claim that she
was present with Don, Robert Long, and the [Petitioner]
during discussions of the Faber Avenue sale.” (Pet’r Br. at
19-20.)
Petitioner argues that “counsel simply failed to bring [this]
evidence before the jury,” even though the government
brought the same evidence before the jury during the direct
examination. (Pet’r Br. at 20.) When the jury hears on direct
examination the evidence a petitioner feels counsel should
have developed in cross-examination, the petitioner did not
suffer prejudice. Dorsey v. Parke, 872 F.2d 163, 166 (6th Cir.
1989); Steven v. Bordenkircher, 746 F.2d 342, 347 (6th Cir.
1984).
Finally, Petitioner complains of various other alleged trial
errors. According to Petitioner, Williams should have
20 Ross v. United States No. 01-4129
objected to the introduction of phone records and pen register
information revealing telephone calls to and from Petitioner,
but Williams had already unsuccessfully objected to that
material earlier. His failure to make a further objection that
the court would have overruled did not prejudice Petitioner.
Petitioner grumbles about counsel’s failure to object to
questions prosecutors asked a government agent about a land
contract and related monies that Petitioner failed to disclose
to the grand jury. The government introduced evidence of a
land contract between the Longs and Loretta and Eugene
Newsome that Petitioner prepared but never filed. Petitioner
denies preparing the land contract, although that does not
preclude prosecutors from asking questions about the
document. Similarly, the government introduced evidence
that Petitioner failed to provide the grand jury information
concerning $60,000 he received from the Longs for land
transaction work that helped hide the Longs’ income.
Petitioner complains about counsel’s failure to object to
questions about this money, but since the money was very
relevant to the government’s case, it seems probable that the
court would have overruled any objection.
Since Petitioner has not established prejudice, we need not
consider whether counsel’s performance was constitutionally
inadequate. See Watson, 784 F.2d at 726.
For all the aforementioned reasons, we AFFIRM the
district court.

-- 10 of 10 --