66 F.3d 327 (6th Cir. 1995), 94-1579, U.S. v. Short

• Citation: 66 F.3d 327
• Party Name: UNITED STATES of America, Plaintiff-Appellee, v. Armeka SHORT, Defendant-Appellant.
• Case Date: September 07, 1995
• Court: United States Courts of Appeals, U.S. Court of Appeals — Sixth Circuit

Page 327

66 F.3d 327 (6th Cir. 1995)

UNITED STATES of America, Plaintiff-Appellee,

v.

Armeka SHORT, Defendant-Appellant.

No. 94-1579.

United States Court of Appeals, Sixth Circuit

September 7, 1995

Editorial Note:

This opinion appears in the Federal reporter in a table titled "Table of Decisions Without Reported Opinions". (See FI CTA6 Rule 28 and FI CTA6 IOP 206 regarding use of unpublished opinions)

On Appeal from the United States District Court, for the Eastern District of Michigan, No. A. 93-80710; Bernard Friedman, District Judge.

E.D.Mich.

AFFIRMED.

Before: JONES, GUY, and BOGGS, Circuit Judges.

PER CURIAM.

Armeka Short appeals her conviction on various drug and firearms charges. Short claims that her conviction should be reversed because she did not have effective assistance of counsel. For the reasons set out below, we affirm.

I

Federal agents arrested Armeka Short on June 29, 1993, during a transaction involving the purchase of six ounces of cocaine. The FBI organized the transaction through Andre Broadnax, a cooperating individual. Broadnax arranged the cocaine deal with Paul Jordan and Jordan's unknown supplier.

Broadnax arranged the meeting for June 29, 1993. On that date, Paul Jordan arrived in a car with Short in the passenger seat. After Jordan completed a telephone call on a nearby pay phone, agents moved in and arrested him. Agents also ordered Short out of the car. Agents saw the butt of a semi-automatic pistol hanging out of Short's purse. After Short got out of the car, agents discovered and seized a brown paper bag containing six ounces of cocaine on the floor of the front seat of the car. An obliterated serial number prevented agents from tracing the pistol.

In setting up the deal with Jordan and Short, Broadnax had made several phone calls, which the FBI monitored. Many of these calls were to a telephone number assigned to an apartment leased by Short's mother. The FBI also taped phone conversations between Short and Jordan. The government introduced five of these conversations at trial. An expert testified that these calls involved attempts to collect drug debts and plans to buy and sell cocaine in the future.

In one phone conversation, Short and Jordan discussed the fact that a price of "twenty-five six" ($25,600) was too high and that "everybody else" wanted "twenty-four or twenty-three." In another call, Jordan and Short discussed the fact that half the kilos were "bad" and had to be sent back. In another call, they discussed the use of a middle man in a drug deal.

A grand jury returned a multi-count indictment against Armeka Short and other co-defendants on September 1, 1993. Count one charged Short with conspiracy to possess cocaine with intent to distribute, in violation of 21 U.S.C. §§ 846 and 841(a)(1); counts five through nine charged Short with unlawful use of a telephone, in violation of 21 U.S.C. § 843(b); count ten charged Short with possession of cocaine with intent to distribute, in violation of 21 U.S.C. § 841(a)(1); count eleven charged Short with possession of a firearm with an obliterated serial number, in violation of 18 U.S.C. § 922(k); and count twelve charged Short with using and carrying a firearm during a drug trafficking offense, in violation of 18 U.S.C. § 924(c).

Short testified at trial, maintaining that she had no involvement in Jordan's cocaine trafficking. She claimed that she gave Jordan some of her jewelry to sell and that this jewelry was the subject of her telephone conversations with Jordan. She denied knowing the price of cocaine, or knowing the meaning of "taking the bad ones [kilos] back." The jury found Short guilty on counts one, five through ten, and twelve. On May 5, 1994, the district court sentenced Short to fifteen years in prison.

II

The sole issue pressed by Short is a claim that her counsel was ineffective during trial for failing to withdraw and then present himself and his partner as witnesses. Short states the issue two ways. First, that the court committed plain error in failing to note the conflict and then disqualify counsel. Second, Short claims that the failure of counsel to withdraw deprived her of her Sixth Amendment right to effective assistance of counsel.

The gravamen of Short's claim is that after Jordan made bail, he visited the law offices of Raymond Burkette (Short's trial attorney) and Arlene Woods, Burkette's partner. Burkette asked Jordan what he told the FBI. Jordan told Burkette he informed the FBI about his own involvement in the crime. Short maintains that Jordan also told Burkette and Woods that Short had "done nothing wrong," and that Short was the "victim" of Jordan's own drug activity.

To establish ineffective assistance of counsel, Short must show that counsel's performance was deficient and that the deficient performance prejudiced the defense, rendering the trial unfair and the result unreliable. Strickland v. Washington, 466 U.S. 668, 687 (1984); Sims v. Livesay, 970 F.2d 1575, 1579-81 (6th Cir.1992); Beam v. Foltz, 832 F.2d 1401,...