Ross v. U.S.

• Decision Date: 06 August 2003
• Docket Number: No. 01-4129.,01-4129.
• Citation: 339 F.3d 483
• Parties: Mark Ross, Petitioner-Appellant, v. UNITED STATES of America, Respondent-Appellee.
• Court: U.S. Court of Appeals — Sixth Circuit

Page 483

339 F.3d 483

Mark Ross, Petitioner-Appellant, v. UNITED STATES of America, Respondent-Appellee.

No. 01-4129.

United States Court of Appeals, Sixth Circuit.

Argued: June 11, 2003.

Decided and Filed: August 6, 2003. Pursuant to Sixth Circuit Rule 206

COPYRIGHT MATERIAL OMITTED

Kevin M. Schad (argued and briefed), Schad & Cook, Indian Springs, OH, for Petitioner-Appellant.

Robyn Jones Hahnert (argued and briefed), United States Attorney's Office, Columbus, OH, for Respondent-Appellee.

Before: KEITH, BATCHELDER, and CLAY, Circuit Judges.

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 Rodolfo 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 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 "[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 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 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 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...