U.S. v. Orr

• Citation: 636 F.3d 944
• Decision Date: 26 April 2011
• Docket Number: No. 09–3644.,09–3644.
• Parties: UNITED STATES of America, Appellee,v.Myron DeJuan ORR, Appellant.
• Court: United States Courts of Appeals. United States Court of Appeals (8th Circuit)

636 F.3d 944

UNITED STATES of America, Appellee,
v.
Myron DeJuan ORR, Appellant.

No. 09–3644.

United States Court of Appeals, Eighth Circuit.

Submitted: Sept. 23, 2010.Filed: March 3, 2011.Rehearing and Rehearing En Banc Denied April 26, 2011.

[636 F.3d 946]

Murray W. Bell, Davenport, IA, argued, for appellant.Myron Dejuan Orr, Pine Knot, KY, pro se.

[636 F.3d 947]

Richard D. Westphal, Asst. U.S. Atty., Davenport, IA, argued (Nicholas A. Klinefeldt, U.S. Atty., Shannon L. Olson, Asst. U.S. Atty., Des Moines, IA, on the brief), for appellee.Before BYE, BEAM, and SMITH, Circuit Judges.SMITH, Circuit Judge.

On August 13, 2008, following a two-day trial, a jury found Defendant-appellant Myron DeJuan Orr guilty on all seven counts of a superceding indictment charging him with various crack cocaine and firearm offenses. Six days later, Orr's counsel moved for a new trial based on his own purportedly ineffective assistance. Following an evidentiary hearing on the matter, the district court ¹ denied the motion, and subsequently sentenced Orr to life imprisonment. On appeal, Orr argues that the district court abused its discretion in (1) denying his motion for new trial, and (2) rendering certain evidentiary rulings during the course of trial. Additionally, prior to oral arguments in this matter, Orr filed a supplemental pro se brief urging this court to retroactively apply the newly enacted Fair Sentencing Act of 2010, which reduces the existing sentencing disparity between crack-cocaine and powder-cocaine offenses. For the reasons that follow, we affirm.

I. Background

In 2006, law enforcement officials suspected that Orr dealt crack cocaine extensively in Burlington, Iowa. Thus, local and federal authorities commenced an ongoing investigation into Orr and his activities. The county sheriff's office in Des Moines, Iowa, while investigating a residential burglary in Mediapolis, Iowa, interviewed Nicholas Nelson. Nelson confessed to the burglary and stated that he bartered one of the stolen items—an X–Box video game system—to Orr in exchange for crack and cash. According to Nelson, this trade occurred at Orr's residence, located at 1305 Washington Street in Burlington.

Based on this information, authorities obtained and executed a search warrant to look for the stolen property at Orr's residence. Orr was not present at the time. Officers found the X–Box connected to a television in the kitchen and also discovered (1) numerous plastic bags in the master-bedroom closet and elsewhere bearing torn corners ² and containing white powder residue, (2) the packaging for a scale commonly used by drug dealers to weigh narcotics, (3) Orr's state-issued identification listing 1305 Washington as his place of residence, (4) 2005 income-tax returns showing the same, and (5) a shotgun under the master-bedroom bed. Authorities later determined the shotgun to be stolen.

Despite the seizure of stolen property and evidence of drug distribution, the search did not immediately result in Orr's arrest. The government maintains that Orr continued dealing crack out of his home at 1305 Washington Street. Throughout January 2007, a Burlington Police Department (“Burlington PD”) Task Force staged several controlled buys of crack cocaine from Orr, utilizing one of Orr's prior customers, turned confidential informant, Darwin Dickerson.

Based on these buys and a search of Orr's curbside garbage, yielding more plastic bags with torn corners, Burlington PD executed a second search warrant at 1305 Washington Street on June 1, 2007.

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This time, authorities found seven bags of crack cocaine; a stun gun; digital scales; multiple cellular phones; several large-screen plasma televisions; stereo equipment; $693 cash; mail addressed to both Orr and his girlfriend, Julie Pfaltzgraff; and a newly issued Iowa identification card listing 1305 Washington as Orr's home address. Orr, Pfaltzgraff, and Pfaltzgraff's three children were present when the authorities searched the home.

Three days later, on June 4, 2007, Burlington PD arrested Orr pursuant to a warrant. As Burlington PD Deputy Brad Siegfried handcuffed Orr and escorted him to the waiting patrol car, Orr insisted that Deputy Siegfried did not actually possess an arrest warrant for Orr, to which Deputy Siegfried replied that he had valid arrest warrants for both Orr and Pfaltzgraff. Orr responded by confessing ownership to “everything in the house” and urging the officers not to involve Pfaltzgraff in their investigation. Orr's incriminating statement to Deputy Siegfried occurred before Orr received Miranda warnings. Shortly after his exchange with Deputy Siegfried, Orr recanted his confession and claimed that police planted any evidence found at the house.

Released on bond, Orr resumed selling crack out of the Washington Street residence in November 2007, and police again arranged several controlled buys from Orr, this time enlisting the help of Cody Bailey, another of Orr's prior patrons, turned informant. Additionally, Keri Christofferson told law enforcement officers that she made crack purchases from Orr at 1305 Washington Street and facilitated purchases there on others' behalf.

On February 12, 2008, a grand jury returned a six-count indictment charging Orr with crack-cocaine related offenses. The district court initially appointed Murray Bell as Orr's counsel, but, on March 12, 2008, Orr's mother retained Frederick Cohn as counsel for Orr. Between June 6 and June 9, 2008, Cohn filed seven pretrial motions, and on June 20 he filed ten more. Notably, among these motions was Cohn's “Motion to Exclude Evidence Concerning Incident of June 4, 2007,” filed on June 20, 2008. This motion failed to specify (1) the evidence sought to be excluded and (2) the legal basis for such exclusion. Later, on the first day of trial and just prior to voir dire, Cohn clarified that this motion sought the exclusion of the custodial confession Orr made to Deputy Siegfried on the day of his arrest, prior to being Mirandized. The district court denied the motion. Cohn renewed his exception to this evidence at trial. Specifically, Cohn contemporaneously objected to the introduction of this confession through Deputy Siegfried's testimony, prompting the district court to interrupt Deputy Siegfried's direct examination and permit Cohn to voir dire Deputy Siegfried outside the jury's presence about the details of Orr's confession. Ultimately, the district court overruled Cohn's objection and permitted Deputy Siegfried to testify about Orr's confession.

On August 13, 2008, after hearing substantially the same evidence recited above, the jury returned a verdict of guilty on all counts. Six days later, Cohn filed a motion for new trial on Orr's behalf, citing his own performance as counsel as the basis for relief. Cohn mentioned several acute ailments ³ for which he had received treatment

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since the trial's conclusion and that may have gone undiagnosed during the trial. Cohn averred that, insofar as they afflicted him during trial, these ailments may have impaired his capacity to adequately represent Orr. Cohn also moved separately for the district court to appoint new counsel “based on the facts stated in the Motion for New Trial,” asserting that “defendant should be represented by counsel who can represent defendant on the issue of whether defendant had adequate effective assistance of counsel.”

On February 12, 2009, the district court granted Cohn's motion to appoint new counsel, relieved Cohn as counsel of record, and, on February 17, 2009, reappointed Orr's original appointed counsel Murray Bell. On September 23, 2009, after receiving Orr's amended motion for new trial and responses thereto, the district court held an evidentiary hearing on the ineffective-assistance-of-counsel claims that Orr raised in his motion for new trial. In relevant part, Orr argued in his amended motion that he was entitled to a new trial because Cohn rendered ineffective assistance of counsel by: (1) failing to object to certain hearsay testimony; (2) failing to adequately cross examine Christofferson about (a) her cooperation agreement with the government, and (b) her prior inconsistent statements to police concerning the amount of crack she and others purchased from Orr; (3) failing to secure suppression of Orr's custodial, un- Mirandized confession to Deputy Siegfried; (4) improperly dissuading Orr from testifying on his own behalf; and (5) failing to call Pfaltzgraff as a defense witness.

On November 4, 2009, after briefing and hearing, the district court denied Orr's motion for new trial in its entirety. Specifically, the district court concluded the following in a written memorandum opinion: (1) Cohn did fail to assert viable hearsay objections, but his failure to do so easily could be explained as excusable trial strategy, and moreover, Orr failed to demonstrate prejudice from Cohn's failure to object; (2) contrary to Orr's contention, Cohn did rigorously cross examine Christofferson, most notably on her history of mental health problems and her likely hope of receiving a reduced sentence in exchange for her testimony; (3) although Cohn did not move pretrial to suppress Orr's statement as is customary, Orr suffered no prejudice as a result because: (a) Cohn did timely and adequately object to the statement's admission at trial; and (b) in any event, evidence of Orr's confession was properly admitted because it was not elicited by Deputy Siegfried in violation of Miranda; (4) Cohn did not ineffectively assist Orr by dissuading him from testifying because Orr admitted that Cohn did so for the stated reason that the government would discredit Orr's testimony, presumably by impeaching Orr with his three prior drug convictions; (5) citing the rule that a lawyer's election not to call a witness is a virtually unassailable decision committed to a lawyer's trial strategy, the Court found no error—and thus no prejudice...