Moss v. U.S., No. 99-1951.

CourtUnited States Courts of Appeals. United States Court of Appeals (6th Circuit)
Writing for the CourtEconomus
Citation323 F.3d 445
PartiesRobert MOSS (99-1951; 01-1797) and Ronald Kohn (01-1610), Petitioners-Appellants, v. UNITED STATES of America, Respondent-Appellee.
Docket NumberNo. 01-1610.,No. 99-1951.,No. 01-1797.
Decision Date26 March 2003
323 F.3d 445
Robert MOSS (99-1951; 01-1797) and Ronald Kohn (01-1610), Petitioners-Appellants,
v.
UNITED STATES of America, Respondent-Appellee.
No. 99-1951.
No. 01-1610.
No. 01-1797.
United States Court of Appeals, Sixth Circuit.
Argued: April 25, 2002.
Decided and Filed: March 26, 2003.

Page 446

COPYRIGHT MATERIAL OMITTED

Page 447

COPYRIGHT MATERIAL OMITTED

Page 448

COPYRIGHT MATERIAL OMITTED

Page 449

Clifford J. Barnard (argued and briefed), Boulder, CO, for Petitioner-Appellant in 99-1951.

Stanley J. Janice, Asst. U.S. Attorney, Detroit, MI, Kathleen Moro Nesi (argued), Asst. U.S. Attorney, Jonathan Tukel (briefed), U.S. Attorney's Office, Detroit, MI, for Respondent-Appellee in 99-1951.

Ronald Kohn, Federal Prison Camp, Duluth, MN, Carole M. Stanyar (argued and briefed), Detroit, MI, for Petitioner-Appellant in 01-1610.

Kathleen Moro Nesi (argued), Asst. U.S. Attorney, Jonathan Tukel (briefed), U.S. Attorney's Office, Detroit, MI, for Respondent-Appellee in 01-1610, 01-1797.

Clifford J. Barnard (argued and briefed), Boulder, CO, for Petitioner-Appellant in 01-1797.

Before: DAUGHTREY and MOORE, Circuit Judges; ECONOMUS, District Judge.*

OPINION

ECONOMUS, District Judge.


I. OVERVIEW

The petitioners-appellants, Ronald Kohn ("Kohn") and Robert Moss ("Moss"), appeal separate orders of the district court denying their motions to vacate their convictions and sentences pursuant to 28 U.S.C. § 2255. On appeal, the petitioners assert that their joint representation by defense counsel created an actual conflict of interest which rendered defense counsel's assistance constitutionally ineffective. The petitioners specifically assert that their "joint, overlapping, and contemporaneous" representation precluded defense counsel from obtaining separate plea agreements with the government, particularly plea agreements requiring cooperation.

In addition, Petitioner Kohn asserts that defense counsel labored under a separate conflict of interest arising from an investigation into defense counsel's alleged interference with a government witness.

Although we conclude that defense counsel's conduct fell below the boundary of professional competence, we nevertheless determine that the petitioners failed to demonstrate that the alleged conflicts of interest adversely affected counsel's performance.

Accordingly, we AFFIRM the orders of the district court and deny the requested relief.

II. FACTUAL HISTORY

Because our inquiry into the existence of an actual conflict of interest requires an examination of the facts giving rise to the conflict, we briefly set forth the factual predicate of the case.

The Pre-Indictment Proceedings

In March 1989, federal law enforcement officials arrested four individuals involved

Page 450

in a conspiracy to import marijuana from Mexico into the United States. Information obtained from these arrests implicated Moss as an integral member of the conspiracy.1

Moss became aware of the government's investigation and contacted a friend and criminal attorney, David Morreale ("Attorney Morreale").2 Attorney Morreale subsequently enlisted the services of a more experienced federal criminal defense attorney, Timothy Murphy ("Attorney Murphy"). By letter dated August 24, 1990, Attorney Morreale assured Moss that the two attorneys would "be working close together" to resolve the matter.

Attorney Murphy immediately began to pursue several efforts in Moss's defense. First, Attorney Murphy issued a letter to United States Attorney Stephen Markman ("Markman") indicating that he represented Moss and that Markman was "free to contact [him] to arrange for an interview with Mr. Moss, where it seems likely that [Moss] will provide information." The letter also complained of the allegedly unprofessional tactics utilized by the United States Marshal's Office and the United States Customs Service during the investigation.

Attorney Murphy additionally began investigating the identities of those individuals providing information against Moss. The investigation uncovered a relationship between Moss and Eli Moreno ("Moreno"), one of the four individuals arrested in March, 1989. Attorney Murphy subsequently traveled to Arizona and obtained discovery (i.e., the court file) regarding Moreno's potential cooperation.

The Indictment and Arraignment

Notwithstanding Attorney Murphy's efforts, on March 4, 1991, a federal grand jury in the Eastern District of Michigan issued an Indictment against, inter alia, Moss and Kohn charging each with one count of conspiracy to import marijuana in violation of 21 U.S.C. §§ 952 and 960, and one count of conspiracy to distribute marijuana in violation 21 U.S.C. §§ 841 and 846. Three days later, law enforcement officers arrested Moss and Kohn.

At the arraignment, Attorney Murphy entered an appearance on behalf of Moss. Attorney Murphy also entered an Appearance on behalf of Kohn.3

By letter dated March 11, 1991 (the "Appearance letter"), Attorney Morreale entered an Appearance on behalf of Moss.4 However, Attorney Murphy did not withdraw as Moss's counsel.

The March 21, 1991 Meeting

On March 21, 1991, indicted co-conspirator David Jaeger ("Jaeger") and his attorney, Ron Kappleman ("Attorney Kappleman"), traveled from South Dakota to Detroit, Michigan for Jaeger's arraignment.

Page 451

Following the arraignment, Attorney Kappleman met with AUSA Janice to discuss Jaeger's potential cooperation with the government.5 At the conclusion of these discussions, Attorney Kappleman unexpectedly discovered Attorney Murphy waiting for him outside of AUSA Janice's office. Attorney Murphy invited Attorney Kappleman and Jaeger back to his office in order to exchange discovery, particularly information regarding the cooperation of the Arizona witnesses.6

Upon arriving at Attorney Murphy's office, Attorney Kappleman and Jaeger encountered Moss and Kohn.7 Attorney Murphy provided Attorney Kappleman with several hundred pages of documents and discussed with him the identities of potential cooperating witnesses. At some time during this discussion, Moss and Jaeger exited the meeting and retreated outdoors. While outside, Moss asked Jaeger to offer a potential witness $25,000.00 in exchange for either favorable testimony, or a refusal to testify. See also Moss, 9 F.3d at 548. Jaeger agreed to bribe the potential witness.

The April, 1991 Meeting

Attorney Murphy subsequently directed complaints to United States Attorney Markman and AUSA Janice regarding the latter's persistence in withholding the identities of cooperating witnesses. In an effort to alleviate these concerns, Markman directed AUSA Janice to schedule a meeting with Attorney Murphy.

At some stage during that meeting, held in early April, 1991,8 Attorney Murphy attempted to predict the names of those witnesses that he believed were cooperating against Kohn. AUSA Janice declined to verify or deny Attorney Murphy's predictions, but stated, "You know, if your client wants to cooperate, it would be in his best interest to do so soon."

The Superceding Indictments

Several weeks later, on April 25, 1991, Jaeger entered into an agreement with the government whereby he agreed to cooperate against Kohn and Moss in exchange for a sentence of thirty-six (36) months in prison.9 On April 26, 1991, the grand jury issued a Superceding Indictment containing additional defendants and adding criminal forfeiture charges against Moss and Kohn.

On August 15, 1991, the government obtained a Second Superceding Indictment based, in part, on Jaeger's cooperation. The Second Superceding Indictment charged Moss with continuing to act in furtherance of the conspiracy by soliciting Jaeger to bribe a potential government witness. The Second Superceding Indictment additionally increased the quantity of marijuana involved in the conspiracy from the fifty (50) kilograms alleged in the original Indictment to over 1,000 kilograms.

Page 452

The Proceedings Below

A jury trial commenced in the district court on September 6, 1991. Attorney Murphy represented Kohn and Attorney Morreale represented Moss. Thirteen days of testimony from forty-two witnesses revealed a marijuana smuggling operation spanning at least eight years and involving fourteen participants. See Moss, 9 F.3d at 548.

The jury returned verdicts of guilt on each count of the Second Superseding Indictment relevant to the petitioners. At the sentencing hearing, the district judge imposed concurrent 188-month sentences on Kohn, as well as concurrent 292-month sentences on Moss.10 Moss and Kohn appealed their convictions and sentences and this Court affirmed. See Moss, 9 F.3d 543.

Moss and Kohn thereafter filed separate motions to vacate, correct, or set aside their sentences pursuant to 28 U.S.C. § 2255. In said motions, Moss and Kohn alleged, inter alia, that they had received ineffective assistance of counsel because: (1) defense counsel failed to advise them of a plea offer extended by the government; (2) defense counsel provided misleading advice regarding sentencing exposure; and (3) conflicts of interest arose from Attorney Murphy's joint representation of their defense, as well as from the investigation into Attorney Murphy's role in the solicitation of Jaeger. Id.

On June 14, 1999, the district court denied the petitions.11 Kohn v. United States, No. 97-CV-72174-DT, 1999 U.S. Dist. LEXIS 10165 (E.D. Mich. June 14, 1999). Moss timely appealed the denial to this Court,12 and the district court granted a Certificate of Appealability to Moss on the "issue of the denial of effective assistance of counsel at the plea stage."

Kohn meanwhile filed a motion to alter or amend judgment pursuant to Rule 59(e) of the Federal Rules of Civil Procedure. The district court denied Kohn's motion except to grant an evidentiary hearing "with respect to [the] claim of ineffective assistance of counsel at the plea stage." This Court remanded Moss's case to the district court for a consolidated...

To continue reading

Request your trial
438 practice notes
  • Smith v. Cook, No. 17-4118
    • United States
    • United States Courts of Appeals. United States Court of Appeals (6th Circuit)
    • April 15, 2020
    ...that a conflict of interest may arise where defense counsel is subject to a criminal investigation," Moss v. United States , 323 F.3d 445, 472 (6th Cir. 2003) (emphasis added), there was no actual conflict here. First, Smith cannot show an actual conflict of interest because he and Armengau......
  • Williams v. Branker, NO. 5:99-HC-123-F
    • United States
    • United States District Courts. 4th Circuit. Eastern District of North Carolina
    • September 27, 2013
    ...however, Sixth Amendment constitutional analysis is independent of attorney rules of professional conduct. Moss v. United States, 323 F.3d 445, 476 (6th Cir. 2003) (even where defense counsel "strain[ed] to their very limits the boundaries of professional conduct" court was unable to conclu......
  • United States v. Whisonant, Criminal No. ELH-17-191
    • United States
    • United States District Courts. 4th Circuit. United States District Court (Maryland)
    • March 3, 2020
    ...the statutory limits; or (3) an error of fact or law so fundamental as to render the entire proceeding invalid. Moss v. United States, 323 F.3d 445, 454 (6th Cir. 2003). And, "an error of law does not provide a basis for collateral attack unless the claimed error constituted 'a fundamental ......
  • Crosky v. Sheets, CASE NO. 2:09-CV-499
    • United States
    • United States District Courts. 6th Circuit. United States District Courts. 6th Circuit. Southern District of Ohio
    • May 11, 2011
    ...previously represented a co-defendant or witness. McFarland v. Yukins (C.A.6, 2004), 356 F.3d 688, 701, citing Moss v. U.S. (C.A.6, 2003), 323 F.3d 445, 459. Successive representation may give rise to an actual conflict of interest. Moss, at 459; U.S. v. Culp (M.D. Fla., 1996), 934 F.Supp. ......
  • Request a trial to view additional results
438 cases
  • Smith v. Cook, No. 17-4118
    • United States
    • United States Courts of Appeals. United States Court of Appeals (6th Circuit)
    • April 15, 2020
    ...that a conflict of interest may arise where defense counsel is subject to a criminal investigation," Moss v. United States , 323 F.3d 445, 472 (6th Cir. 2003) (emphasis added), there was no actual conflict here. First, Smith cannot show an actual conflict of interest because he and Armengau......
  • Williams v. Branker, NO. 5:99-HC-123-F
    • United States
    • United States District Courts. 4th Circuit. Eastern District of North Carolina
    • September 27, 2013
    ...however, Sixth Amendment constitutional analysis is independent of attorney rules of professional conduct. Moss v. United States, 323 F.3d 445, 476 (6th Cir. 2003) (even where defense counsel "strain[ed] to their very limits the boundaries of professional conduct" court was unable to conclu......
  • United States v. Whisonant, Criminal No. ELH-17-191
    • United States
    • United States District Courts. 4th Circuit. United States District Court (Maryland)
    • March 3, 2020
    ...the statutory limits; or (3) an error of fact or law so fundamental as to render the entire proceeding invalid. Moss v. United States, 323 F.3d 445, 454 (6th Cir. 2003). And, "an error of law does not provide a basis for collateral attack unless the claimed error constituted 'a fundamental ......
  • Crosky v. Sheets, CASE NO. 2:09-CV-499
    • United States
    • United States District Courts. 6th Circuit. United States District Courts. 6th Circuit. Southern District of Ohio
    • May 11, 2011
    ...previously represented a co-defendant or witness. McFarland v. Yukins (C.A.6, 2004), 356 F.3d 688, 701, citing Moss v. U.S. (C.A.6, 2003), 323 F.3d 445, 459. Successive representation may give rise to an actual conflict of interest. Moss, at 459; U.S. v. Culp (M.D. Fla., 1996), 934 F.Supp. ......
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT