U.S. v. Griffin

• Decision Date: 19 June 1985
• Docket Number: No. 84-1878,84-1878
• Citation: 765 F.2d 677
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. James M. GRIFFIN, Defendant-Appellant.
• Court: U.S. Court of Appeals — Seventh Circuit

Page 677

765 F.2d 677

UNITED STATES of America, Plaintiff-Appellee, v. James M. GRIFFIN, Defendant-Appellant.

No. 84-1878.

United States Court of Appeals Seventh Circuit.

Argued Jan. 22, 1985.

Decided June 19, 1985.

Howard B. Eisenberg, Associate Professor, Southern Ill. University, Carbondale, Ill., for defendant-appellant.

Frederick J. Hess, U.S. Atty., East St. Louis, Ill., for plaintiff-appellee.

Before ESCHBACH and COFFEY, Circuit Judges, and JAMESON, Senior District Judge. ^*

COFFEY, Circuit Judge.

James M. Griffin appeals the district court's denial of his petition to vacate or set aside his sentence pursuant to 28 U.S.C. Sec. 2255. We affirm.

I.

On April 20, 1973, Griffin was arrested in Collinsville, Illinois, by agents of the Drug Enforcement Administration. At the time of his arrest, Griffin was approximately 30 yards away from his car and was carrying 20 grams of cocaine in his pants pocket. In a search of his car at the time of his arrest, a package containing approximately 858 grams of cocaine was found in the defendant's automobile. Griffin was subsequently charged with two counts of violating 21 U.S.C. Sec. 841(a)(1), possession of a controlled substance with intent to distribute. Specifically, one count of the indictment was based upon the 20 grams of cocaine found on Griffin's person and the second count was based upon the 858 grams of cocaine found in the defendant's car. Griffin was tried before a jury in the United States District Court for the Southern District of Illinois and was convicted on both counts of possession of a controlled substance with the intent to distribute. Griffin failed to appear for a sentencing hearing and remained a fugitive until late 1981. After he was apprehended, Griffin received two ten-year sentences to be served concurrently. Griffin appealed his conviction to this court in 1982 arguing that the district court erred both in limiting his cross-examination of a Government witness and in denying his motion to suppress the cocaine taken from his person and his automobile. Our court affirmed his conviction in an unpublished order. Following his appeal, the defendant filed a petition to vacate or set aside his sentence pursuant to 28 U.S.C. Sec. 2255, the equivalent of a habeas corpus petition for federal prisoners. Griffin argued that his sentence violated the double jeopardy clause because his indictment was multiplicitous, i.e., the indictment charged a single offense in more than one count. The district court found that Griffin had waived his multiplicity argument in failing to raise it either at trial or on appeal. Because Griffin failed to show cause excusing his procedural default and actual prejudice resulting from the error of which he complained, the district court denied Griffin's petition.

II.

A. Whether the "Cause and Prejudice" Standard Should Apply.

Griffin's argument that the cause and prejudice standard should not be applied to his failure to raise his multiplicity issue either at trial or on appeal is based on two premises. First, Griffin argues that our opinion in Norris v. United States, 687 F.2d 899 (7th Cir.1982), applying the cause and prejudice standard to a Sec. 2255 petition, is limited to situations in which the federal criminal defendant failed at trial to honor an established rule requiring a contemporaneous objection. Secondly, relying on a Sixth Circuit case, United States v. Rosenbarger, 536 F.2d 715 (6th Cir.1976), Griffin argues that Fed.R.Crim.P. 12(b)(2) and (f) do not require him to raise his multiplicity issue before trial. ¹ Thus, under Griffin's theory Norris does not apply to a challenge to a multiplicitous indictment raised under a Sec. 2255 petition because the defendant is not required to raise the issue at trial. Since Griffin does not discuss the deliberate bypass standard, ² we are left with the logical inference that he believes that a multiplicity issue may be raised at any time.

The defendant in Norris presented four allegations in his Sec. 2255 petition: (1) one of the witnesses who testified against the defendant at his trial was alleged not to be credible, 687 F.2d at 900; (2) a photo identification was unduly suggestive, id.; (3) the trial judge was biased, id. at 901; and (4) the jury was racially prejudiced. Id. None of these issues were presented in the defendant's direct appeal of his conviction. Our court held that the witness credibility claim did not raise a constitutional issue and, relying on Sunal v. Lange, 332 U.S. 174, 67 S.Ct. 1588, 91 L.Ed. 1982 (1947), held that this claim could not be brought in the Sec. 2255 petition because of the failure to bring the claim on direct appeal. 687 F.2d at 900.

Turning to the remaining claims, which raise constitutional issues, we noted that the defendant failed to assert either the alleged bias of the trial judge or the racially prejudiced jury claim at trial. Id. at 901. Although the court contemplated holding that the failure to raise either the trial judge bias or the racially prejudiced jury claims at trial would bar the defendant from relief under section 2255, the court declined to base its holding on this ground. Id. After discussing the continuing vitality of Kaufman v. United States, 394 U.S. 217, 89 S.Ct. 1068, 22 L.Ed.2d 227 (1969), we held that the failure to bring an issue on direct appeal bars raising that issue in a Sec. 2255 motion unless good cause for not raising the matter on direct appeal is demonstrated. Id. at 903-04. When applying this rule to the unduly suggestive photo identification, trial judge bias and racially prejudiced jury claims, our court did not distinguish between the claims raised at trial and those not raised at trial. Id. at 904. Thus, Griffin is in error when he argues that our holding in Norris was limited to situations in which the federal criminal defendant failed to honor an established rule requiring a contemporaneous objection. Simply stated, the rule propounded in Norris is that when a federal criminal defendant fails to argue an issue on direct appeal of his conviction, the failure to bring the issue on direct appeal bars raising that issue in a Sec. 2255 motion unless good cause for not appealing is shown. Id. at 903-04. Because Griffin failed to include his multiplicity claim in his direct appeal, he is barred from bringing that issue in a Sec. 2255 petition unless he is able to demonstrate good cause for his failure to appeal the issue.

Additionally, Griffin's assertion that Fed.R.Crim.P. 12(b)(2) does not require him to bring his multiplicity claim before trial is in error. The Sixth, Fifth and Eleventh Circuits hold that Rule 12(b)(2) does not require a federal criminal defendant to raise a multiplicity issue before trial. United States v. Rosenbarger, 536 F.2d 715 (6th Cir.1976); United States v. Cauble, 706 F.2d 1322 (5th Cir.1983); United States v. Mastrangelo, 733 F.2d 793 (11th Cir.1984). The First, Second and Eighth Circuits hold, to the contrary, that Rule 12(b)(2) does require a federal criminal defendant to raise a multiplicity issue before trial. United States v. Sheehy, 541 F.2d 123 (1st Cir.1976); United States v. Alessi, 638 F.2d 466 (2d Cir.1980); United States v. Herzog, 644 F.2d 713 (8th Cir.1981). The problem with multiplicity is that a defendant may be given multiple sentences for the same offense. "The prosecutor may accumulate offenses by alleging that the defendant's conduct violated one statutory provision more than once and considering each violation as a separate offense or by alleging that the defendant's conduct violated more than one statutory provision in charging each violation separately." 8 J. Moore, Moore's Federal Practice, Sec. 8.07 (2d ed. 1984). Because multiplicity problems may appear in various forms and may not be apparent until after the government presents evidence at trial, see, e.g., United States v. Universal C.I.T. Credit Corp., 344 U.S. 218, 225, 73 S.Ct. 227, 231, 97 L.Ed. 260 (1952), we confine ourselves to the situation at hand: a multiplicity claim based on the indictment alleging that the prosecutor improperly charged that the defendant's conduct violated the same statute twice. Important Fed.R.Crim.P. 12 principles are served by requiring defendants to bring multiplicity claims based on the indictment before trial. Rule 12 ensures that trials will be efficient and that criminal defendants will not be allowed to delay raising claims for tactical reasons. See Davis v. United States, 411 U.S. 233, 241, 93 S.Ct. 1577, 1582, 36 L.Ed.2d 216 (1973). In a case similar to the one at hand in which the defendant argues that possession of two separate quantities of one drug, one in his pants pocket and the other in his car, is one offense, the government will typically resist the multiplicity claim with two arguments: (1) by storing the packages in separate locations the defendant cannot claim that he was in continuous possession of the various packages, see e.g., United States v. Horton, 601 F.2d 319 (7th Cir.), cert. denied, 444 U.S. 937, 100 S.Ct. 287, 62 L.Ed.2d 197 (1979); or, more importantly, (2) that the various packages contain drugs of different purity. See, e.g., United States v. Privett, 443 F.2d 528 (9th Cir.1971). If the defendant were allowed to raise a multiplicity argument any time after trial, the drugs would in all probability have been destroyed and the Government would have lost the factual basis for proving the offenses were committed. Thus, it would be to the defendant's tactical advantage to delay bringing the multiplicity claim until after trial as he well knows evidence of this nature is destroyed. Furthermore, vacating a defendant's sentence when the Government is no longer able to prove by presentation of evidence that separate offenses were committed would not serve the double jeopardy goal of preventing courts from imposing a sentence greater than that authorized by the legislature. "[A]cts constituting a course of...