U.S. v. Humphrey

Decision Date17 April 2002
Docket NumberNo. 99-3374.,99-3374.
Citation287 F.3d 422
PartiesUNITED STATES of America, Plaintiff-Appellee, v. Montel Lavelle HUMPHREY, Defendant-Appellant.
CourtU.S. Court of Appeals — Sixth Circuit

Michael J. Benza (argued and briefed), Cleveland, OH, for Appellant.

Ronald B. Bakeman (argued and briefed), Assistant United States Attorney, Cleveland, OH, for Appellee.

Before: MOORE and COLE, Circuit Judges; ROSEN, District Judge.*

COLE, J., delivered the opinion of the court, in which MOORE, J., joined. ROSEN, D.J. (pp. 454-475), delivered a separate opinion concurring in part and dissenting in part.


COLE, Circuit Judge.


Montel L. Humphrey appeals his conviction and sentence for conspiring to possess with intent to distribute cocaine, possession of a firearm after a prior felony conviction, and conspiring to commit money laundering. Humphrey assigns six points of error: (1) the Government relied on incompetent evidence and argument at trial and improperly used its peremptory challenges to exclude African Americans from the jury; (2) the district court failed to examine a conflict of interest raised by trial counsel prior to sentencing and failed to conduct a proper inquiry into Humphrey's Batson challenge raised during the course of voir dire; (3) the jury instructions failed to properly guide the jury in its consideration of the multiple conspiracies alleged in this case, failed to ensure jury unanimity on elements of the offense, and failed to direct the jury to determine the type of drugs sold by Humphrey; (4) the district court violated Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000), when it failed to instruct the jury to find drug quantities beyond a reasonable doubt; (5) Humphrey's trial counsel failed to provide effective assistance, because counsel failed to raise a timely Batson challenge, operated under a conflict of interest, failed to argue for or present a mitigation argument in support of a downward departure, and failed to object to Government misconduct at critical stages of trial; and (6) the Government's plea agreements with alleged co-conspirators Henry Eaton and Tyrone Cromity, pursuant to which both were "paid" for their testimony, violated the express terms of 18 U.S.C. § 201(c)(2) and Disciplinary Rule 7-109(c) of the Ohio Code of Professional Responsibility.

For the reasons that follow, we AFFIRM the judgment of the district court with the exception of the sentence. Because the district court's drug quantity finding resulted in an enhanced statutory penalty, we conclude that Humphrey's sentence violated the Supreme Court's rule established in Apprendi v. New Jersey. We accordingly VACATE Humphrey's sentence and REMAND this case to the district court for resentencing.


The Caribbean Gang Task Force ("Task Force") of the Shaker Heights, Ohio, Police Department conducted an eighteen month investigation into the drug-distribution activities of Henry Eaton and Tyrone Cromity. Over the course of this investigation, the Government made controlled buys from both individuals and intercepted phone calls and pages made by them to Montel Humphrey. The Task Force never made any controlled buys from Humphrey, never witnessed any drug deals involving Humphrey, and never observed drugs in Humphrey's possession. It nevertheless secured sufficient evidence to execute search and arrest warrants on June 3, 1997, on numerous individuals and locations, including Humphrey and his property. This search revealed no drugs or drug paraphernalia in Humphrey's possession. On July 1, 1997, a federal grand jury in the Northern District of Ohio returned a superseding indictment against Humphrey and fourteen other individuals, charging violations of federal narcotics, firearms, and money laundering laws. The Government entered into plea agreements with all defendants except Humphrey and Darryl Morrow, both of whom proceeded to trial before Judge Sam H. Bell on June 9, 1998.

Testimony at trial revealed that Eaton first met Humphrey in Alabama in September 1996. Thereafter, Eaton allegedly met Humphrey in Cleveland, Ohio, where Humphrey discussed supplying Eaton with cocaine. Eaton received approximately one-eighth of a kilogram of cocaine from Humphrey as a result of that conversation and continued to receive periodic shipments of cocaine from Humphrey until March 1997. From September 1996 through March 1997, Humphrey distributed cocaine to Eaton "approximately ten to twelve times." Eaton also testified that he and Humphrey communicated with each other by telephone and pager using predetermined codes.

Task Force member and Shaker Heights, Ohio, Detective Marvin LaMielle testified that from January 25, 1997, through June 4, 1997, the Task Force undertook court-authorized interceptions of electronic and wire communications between Humphrey and other individuals under investigation. LaMielle also testified that he obtained Humphrey's cellular telephone records, which, in conjunction with the intercepted communications, revealed that shortly after Eaton would arrange the sale of cocaine to third parties, Eaton would page Humphrey with the appropriate codes, ostensibly to purchase some quantity of cocaine.

Cromity testified that he met Humphrey sometime in 1992 or 1993 and that their first drug transaction occurred in November 1996. Cromity stated that on this occasion he paged Humphrey and entered his home telephone number, the appropriate code to identify himself as the caller, and the amount of money he had to purchase cocaine. The two subsequently met, whereupon Humphrey allegedly sold Cromity one-half kilogram of cocaine for $8,000. Cromity also testified that Humphrey continued to supply him with drugs through February 1997, during which time he received "probably between seven and nine" kilograms of cocaine. Humphrey's phone records, coupled with information intercepted from Humphrey's pager, indicated that on more than one occasion Cromity paged Humphrey seeking to purchase cocaine from him, after which Humphrey called Cromity to make payment arrangements.

On June 22, 1998, a jury acquitted Morrow of all counts. Humphrey, however, was convicted of conspiring to distribute cocaine (Counts One and Two), unlawful possession of a firearm by a previously convicted felon (Count Twelve), and conspiring to commit money laundering (Count Seventeen); he was acquitted of two substantive money laundering counts (Counts Eighteen and Nineteen). On March 10, 1999, the district court denied Humphrey's post-trial motions for a Franks hearing1 and a new trial and his motion to set aside his state conviction for sentencing purposes. At Humphrey's request, Judge Bell recused himself on September 8, 1998; the case was then transferred to Judge Patricia A. Gaughan.

David Dudley, Humphrey's counsel, raised a possible conflict of interest shortly before Humphrey's scheduled sentencing. The government filed a motion requesting that the district court consult with Humphrey and Dudley regarding Dudley's continued representation of Humphrey. The district court reviewed a transcript of an earlier hearing held before Judge Bell on this issue and concluded that no additional inquiry was warranted. On March 10, 1999, the district court sentenced Humphrey to a mandatory 240-month term of imprisonment pursuant to 21 U.S.C. § 841(b)(1)(A), a ten-year period of supervised release, a $25,000 fine, and a $400 special assessment. This timely appeal followed.

A. Government Misconduct
1. Standard of Review

Where a defendant fails to raise an objection before the district court, "a court of appeals [has] a limited power to correct errors that were forfeited because [they were] not timely raised in district court." United States v. Olano, 507 U.S. 725, 731, 113 S.Ct. 1770, 123 L.Ed.2d 508 (1993). Indeed, we will notice such an error only in "exceptional circumstances" or when the failure to do so would produce a "plain miscarriage of justice." See United States v. Pickett, 941 F.2d 411, 415 (6th Cir.1991).

We have developed a four-part analysis to review forfeited claims. We consider first whether there was error. United States v. Vincent, 20 F.3d 229, 234 (6th Cir.1994). If there was error, then we determine if the error was plain. Id. If the error was plain, we next decide whether the error affected the defendant's substantial rights. Id. Finally, we consider whether the error seriously affected the "fairness, integrity, or public reputation" of the judicial proceedings. Id. Only upon such a finding may we then exercise our discretionary authority to notice the error. See id.

Preserved objections to a district court's evidentiary decisions are reviewed for abuse of discretion. We will only reverse if the decision caused more than a harmless error. Cooley v. Carmike Cinemas, Inc., 25 F.3d 1325, 1330 (6th Cir. 1994)

2. Analysis

Humphrey argues that the Government's misconduct at trial deprived him of his right against self-incrimination, as well as his rights to a fair trial, an unbiased jury, and due process of law. Specifically, Humphrey alleges: (1) that the Government improperly shifted the burden of proof to him by suggesting to the jury that Humphrey's unexplained wealth demonstrated his participation in narcotics and money laundering activities; (2) that the Government improperly used Humphrey's income tax returns and the testimony of an Internal Revenue Service ("IRS") agent to suggest that Humphrey's commission of an unindicted crime, tax evasion, was evidence of guilt; (3) that the prosecutor improperly vouched for his witness and stated his personal belief in Humphrey's guilt; (4) that the Government improperly exercised its peremptory challenges to exclude African-Americans from...

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