Lynn v. U.S., No. 02-15521.

CourtUnited States Courts of Appeals. United States Court of Appeals (11th Circuit)
Writing for the CourtPer Curiam
Citation365 F.3d 1225
PartiesRichard LYNN, Petitioner-Appellant, v. UNITED STATES of America, Respondent-Appellee.
Docket NumberNo. 02-15521.
Decision Date14 April 2004

Page 1225

365 F.3d 1225
Richard LYNN, Petitioner-Appellant,
v.
UNITED STATES of America, Respondent-Appellee.
No. 02-15521.
United States Court of Appeals, Eleventh Circuit.
April 14, 2004.

Page 1226

Thomas K. Maher, Rudolf, Maher, Widenhouse & Fialko, Chapel Hill, NC, for Petitioner-Appellant.

Page 1227

Steven E. Butler, Leigh Lichty Pipkin, Richard H. Loftin, Asst. U.S. Atty., Mobile, AL, for Respondent-Appellee.

Appeal from the United States District Court for the Southern District of Alabama.

Before TJOFLAT, HULL and FAY, Circuit Judges.

PER CURIAM:


In 1997, Richard Joseph Lynn, a federal prisoner, filed a § 2255 motion to vacate his life sentence. Lynn's direct appeal was dismissed in 1990 because he escaped from custody while that appeal was pending. The district court denied Lynn's § 2255 motion. We affirm.

I. PROCEDURAL BACKGROUND

A. 1989 Jury Trial

In 1989, Lynn, Robert Eyster, and Jack Marshall were indicted and tried in federal court on numerous drug charges.1 In a multi-count indictment, Lynn and his codefendants were charged with participating in an ongoing conspiracy to import cocaine by plane into Alabama from 1982 to 1989. During those years, Lynn's drug-trafficking enterprise smuggled massive amounts of cocaine, at least 600 kilograms per load.

The government claimed that Lynn principally directed and administered the criminal organization, which included pilots, personnel who refueled the planes in Belize, personnel who unloaded the cocaine in Alabama, radio operators who monitored law enforcement communications, and persons who distributed the cocaine. According to the government, Eyster acted as a radio operator in Alabama and Marshall was an armed "enforcer" who provided intimidation, unloaded cocaine from the airplanes, and transported it to other locations for distribution.

The jury found Lynn, Eyster, and Marshall guilty of drug crimes.2 The district court sentenced Lynn to seven concurrent life sentences.3

B. Dismissal of Lynn's Direct Appeal

On December 15, 1989, Lynn, along with codefendants Eyster and Marshall, appealed their convictions and sentences to this Court. While his direct appeal was pending with this Court, Lynn escaped from federal custody on or about March 27, 1990.

Page 1228

On June 18, 1990, the government filed a motion to dismiss Lynn's direct appeal based on the fugitive disentitlement doctrine. The government contended that because Lynn was a fugitive from justice, his appeal should be dismissed. See Estelle v. Dorrough, 420 U.S. 534, 537, 95 S.Ct. 1173, 1175, 43 L.Ed.2d 377 (1975) ("Disposition by dismissal of pending appeals of escaped prisoners is a longstanding and established principle of American law."); Molinaro v. New Jersey, 396 U.S. 365, 366, 90 S.Ct. 498, 499, 24 L.Ed.2d 586 (1970) (dismissing appeal because defendant's refusal to surrender to authorities "disentitles [him] to call upon the resources of the Court for determination of his claims").

On August 17, 1990, this Court granted the government's motion and dismissed Lynn's direct appeal. On August 29, 1990, federal authorities apprehended Lynn, who had remained at large for over five months.4

C. Attempts to Reinstate Direct Appeal

While Lynn was still a fugitive and after his direct appeal was dismissed, his counsel filed a motion for reconsideration and a proposed brief, asking this Court to allow counsel to file that brief for Lynn. After Lynn was captured, Lynn's counsel filed supplements to that reconsideration motion and a separate motion to adopt issues from codefendant Eyster's appellate brief. Two of the claims that Lynn sought to adopt from Eyster's brief are the same claims made in Lynn's § 2255 motion and this appeal: (1) the prosecutor's improper vouching for the credibility of witness Sheehy; and (2) witness sequestration violations by prosecution witnesses incarcerated together who discussed and tailored their testimony to conform to each other's.

On September 25, 1990, this Court denied Lynn's motion to reconsider the earlier dismissal of his appeal. The proposed appellate brief and motion to adopt Eyster's arguments, both submitted by Lynn's counsel, were returned unfiled. The Supreme Court subsequently denied Lynn's petition for a writ of certiorari regarding our dismissal of his appeal. Lynn v. United States, 499 U.S. 904, 111 S.Ct. 1103, 113 L.Ed.2d 213 (1991).

D. 1991 Reversal of Eyster's and Marshall's Convictions

Although Lynn's appeal was dismissed, the direct appeals of codefendants Eyster and Marshall remained pending. On December 17, 1991, this Court reversed Eyster's and Marshall's convictions based on the prosecutor's improper vouching for the credibility of Sheehy, a key government witness during the trial. United States v. Eyster, 948 F.2d 1196, 1207-08 (11th Cir.1991). This Court concluded that the "prosecutor's comments implicated the government's credibility, so infecting the trial with unfairness as to rise to the level of a denial of due process." Id. at 1207. Because Lynn's § 2255 motion claims that his due process rights were violated by this same prosecutorial misconduct, we outline what happened during the 1989 trial.

Witness Sheehy was indicted with defendants Lynn, Eyster, and Marshall, but pled guilty shortly before trial and testified against them. Sheehy pled guilty to only Count 7 (cocaine importation on a

Page 1229

flight in July or August 1987) and not to Count 9 (cocaine importation on a flight on September 25, 1987). During the trial, defense counsel emphasized that Sheehy was in a halfway house until July 30, 1987 and living in the Florida Keys in August 1987, and contested Sheehy's credibility by attacking his willingness to admit guilt falsely to Count 7 in order to obtain the benefits of a plea. To rehabilitate Sheehy, the prosecutor on redirect asked Sheehy questions implying that his plea to Count 7, instead of Count 9, was due to a typographical error in his plea agreement.

In reversing, this Court determined: (1) that Sheehy had pled to Count 7; (2) that there was no typographical error; and (3) that by suggesting to the jury that Sheehy meant to plead to Count 9 instead of Count 7, the prosecutor "implicitly vouched for the witness by indicating that information not before the jury supported Sheehy's credibility." Id.

This Court in Eyster concluded that the prosecutor's "improper vouching" tainted Eyster's and Marshall's trial because "the essence of their defense was attacking the credibility of certain key witnesses testifying against them pursuant to plea agreements." Id. at 1208. This Court noted that although the government produced extensive documentary and physical evidence about the drug-trafficking organization, "the government's case against Eyster, and to a lesser degree Marshall, depended heavily on the credibility of witnesses who testified pursuant to plea agreements." Id. at 1200. This Court determined that "there is a reasonable probability that, but for the prosecutor's improper comments, the outcome of the proceeding would have been different," particularly because no physical evidence linked Eyster to the drug-trafficking organization. Id. at 1208.

In their direct appeals, Eyster and Marshall also sought a new trial based on prosecution witnesses' intentionally violating the witness sequestration order.5 Specifically, witnesses Sheehy, Purvis, DeWeese, and Barclay discussed and tailored their trial testimony while incarcerated together. Id. at 1210. During the trial, defendants were able to elicit testimony from Purvis, DeWeese, and Barclay, who admitted to engaging in conversations during trial and to violating the witness sequestration order. Id. at 1210-11. Purvis even admitted to discussing testimony with DeWeese and Sheehy. Id. Defendants also filed a post-trial motion for a new trial based upon Sheehy's admission to his own counsel that there were repeated violations of the witness sequestration order and that he and others had perjured themselves regarding these violations. Id. at 1211.

In our Eyster decision, this Court concluded that Eyster and Marshall were not entitled to a new trial based on the witness sequestration violations. Id. Although this Court noted that "the record ... reflects that both the district court and the government were lax in upholding the sequestration rule," it ultimately concluded that, "given the curative aspect of the cross-examination," the district court did not abuse its discretion in denying defendants a new trial. Id. (emphasis added). In so concluding, this Court determined that "[d]efense counsel fully cross-examined [witnesses] Purvis, DeWeese, Barclay

Page 1230

and Sheehy about the nature and extent of their contacts with each other, thereby giving the jury the opportunity to evaluate their credibility." Id.

E. Lynn's § 2255 Motion

On March 28, 1997, over five years after this Court reversed Eyster's and Marshall's convictions, Lynn filed a § 2255 motion.6 Lynn's § 2255 motion contended that his trial was fundamentally unfair in violation of his constitutional due process rights for the same two reasons put forth by Eyster and Marshall in their appeals: (1) the prosecutor's improper vouching for witness Sheehy; and (2) sequestration violations by prosecution witnesses who discussed and tailored their testimony to conform to each other's. Lynn's § 2255 motion stressed that this Court in Eyster had reversed the convictions of Eyster and Marshall based on a violation of their due process right to a fair trial. Because he was tried with Eyster and Marshall, Lynn asserted that he also was denied his constitutional right to a fair trial due to the prosecutor's improper vouching and the witness sequestration violations.

In addition to relying on this Court's reversal of Eyster's and Marshall's convictions, Lynn's § 2255 motion relied on affidavits executed in 1997 by prosecution witnesses Sheehy and Purvis (the "1997 affidavits"). In...

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1013 practice notes
  • Moore v. United States, CIVIL ACTION NO. 13-00047-KD-B
    • United States
    • United States District Courts. 11th Circuit. United States District Court of Southern District of Alabama
    • March 21, 2014
    ...be a constitutional error.' Gilbert v. United States, 640 F.3d 1293, 1321 (11th Cir. 2011) (en banc). See also Lynn v. United States, 365 F.3d 1225, 1232 (11th Cir. 2004); Burke v. United States, 152 F.3d 1329, 1331-32 (11th Cir. 1998). In addition, the Eleventh Circuit has made clear that ......
  • Granda v. United States, No. 17-15194
    • United States
    • U.S. Court of Appeals — Eleventh Circuit
    • March 11, 2021
    ...innocence rather than his legal innocence. Actual innocence means factual innocence, not mere legal innocence." Lynn v. United States, 365 F.3d 1225, 1235 n.18 (11th Cir. 2004) (alterations accepted) (internal quotation marks and citations omitted). "To establish actual innocence, [the] pet......
  • Mouzon v. United States, CV 119-130
    • United States
    • United States District Courts. 11th Circuit. United States District Court (Southern District of Georgia)
    • September 28, 2020
    ...F.3d at 1055. In other words, Petitioner may not use this collateral attack as "a surrogate for a direct appeal." Lynn v. United States, 365 F.3d 1225, 1232 (11th Cir. 2004) (citation omitted). The procedural bar to claims which could have been raised on direct appeal, but were not, may be ......
  • White v. United States, Criminal 18-cr-101-CG-MU
    • United States
    • U.S. District Court — Southern District of Alabama
    • March 8, 2022
    ...federal forum”). “[A] collateral challenge, such as a § 2255 motion, may not be a surrogate for a direct appeal.” Lynn v. United States, 365 F.3d 1225, 1232 (11th Cir. 2004) (per curiam) (citing Frady, 456 U.S. at 165 (collecting cases)). “Because collateral review is not a substitute for a......
  • Request a trial to view additional results
1017 cases
  • Moore v. United States, CIVIL ACTION NO. 13-00047-KD-B
    • United States
    • United States District Courts. 11th Circuit. United States District Court of Southern District of Alabama
    • March 21, 2014
    ...be a constitutional error.' Gilbert v. United States, 640 F.3d 1293, 1321 (11th Cir. 2011) (en banc). See also Lynn v. United States, 365 F.3d 1225, 1232 (11th Cir. 2004); Burke v. United States, 152 F.3d 1329, 1331-32 (11th Cir. 1998). In addition, the Eleventh Circuit has made clear that ......
  • Granda v. United States, No. 17-15194
    • United States
    • U.S. Court of Appeals — Eleventh Circuit
    • March 11, 2021
    ...innocence rather than his legal innocence. Actual innocence means factual innocence, not mere legal innocence." Lynn v. United States, 365 F.3d 1225, 1235 n.18 (11th Cir. 2004) (alterations accepted) (internal quotation marks and citations omitted). "To establish actual innocence, [the] pet......
  • Mouzon v. United States, CV 119-130
    • United States
    • United States District Courts. 11th Circuit. United States District Court (Southern District of Georgia)
    • September 28, 2020
    ...F.3d at 1055. In other words, Petitioner may not use this collateral attack as "a surrogate for a direct appeal." Lynn v. United States, 365 F.3d 1225, 1232 (11th Cir. 2004) (citation omitted). The procedural bar to claims which could have been raised on direct appeal, but were not, may be ......
  • White v. United States, Criminal 18-cr-101-CG-MU
    • United States
    • U.S. District Court — Southern District of Alabama
    • March 8, 2022
    ...federal forum”). “[A] collateral challenge, such as a § 2255 motion, may not be a surrogate for a direct appeal.” Lynn v. United States, 365 F.3d 1225, 1232 (11th Cir. 2004) (per curiam) (citing Frady, 456 U.S. at 165 (collecting cases)). “Because collateral review is not a substitute for a......
  • Request a trial to view additional results

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