U.S.A v. Wallace

• Decision Date: 16 March 2010
• Docket Number: No. 07-2230.,07-2230.
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Barbara J. WALLACE, DefendantAppellant.
• Court: U.S. Court of Appeals — Sixth Circuit

597 F.3d 794

UNITED STATES of America, Plaintiff-Appellee, v. Barbara J. WALLACE, DefendantAppellant.

No. 07-2230.

United States Court of Appeals,
Sixth Circuit.

Argued: Nov. 17, 2009.
Decided and Filed: March 16, 2010.

[597 F.3d 795][597 F.3d 796]

ARGUED: Eric E. Proschek, Law Office, Bay City, Michigan, for Appellant. Janet L. Parker, Assistant United States Attorney, Bay City, Michigan, for Appellee. ON BRIEF: Eric E. Proschek, Law Office, Bay City, Michigan, for Appellant. Janet L. Parker, Assistant United States Attorney, Bay City, Michigan, for Appellee.

Before MERRITT, CLAY, and McKEAGUE, Circuit Judges.

CLAY, J., delivered the opinion of the court, in which MERRITT, J., joined, and also filed a separate concurring opinion (p. 808). McKEAGUE, J. (pp. 808-12), delivered a separate opinion concurring in part and dissenting in part.

OPINION

CLAY, Circuit Judge.

Defendant Barbara Wallace appeals her conviction and sentence following her conviction for perjury in violation of 18 U.S.C. § 1621, conspiracy to possess with intent to distribute oxycodone (OxyContin) in violation of 21 U.S.C. § 841(a)(1), and use of a communication facility to facilitate a drug crime in violation of 21 U.S.C. § 843(b). She appeals challenging both her conviction and the procedural reasonableness of her sentence. For the following reasons, Wallace's conviction is AFFIRMED, but her sentence is VACATED, and the case is REMANDED for re-sentencing.

BACKGROUND

Wallace has been tried twice on the drug charges. A first trial ended in mistrial when the jury could not reach a unanimous verdict. A new indictment was filed adding two counts of peijury based on Wallace's testimony at the first trial. The perjury and drug charges were tried together at a second trial where Wallace was found guilty of all charges. She was given concurrent sentences, the longest of which was seventy-eight months.

Wallace came to the attention of authorities following an investigation that began in Saginaw, Michigan. Federal authorities were suspicious of a series of packages sent to a "Kim Smith" in Saginaw from addresses in California that did not exist. A package was intercepted in October 2004, and a drug detection dog picked the package out of a package "line up." The postal inspector opened the package and found sixty tablets of OxyContin. In connection with the delivery of this package, a search warrant was executed which revealed that the intended recipient was Wardell Amos. Upon further investigation, it was determined that the addressed re-

[597 F.3d 797]

cipient, "Kim Smith, " did not exist. Amos agreed to cooperate with the government and placed a phone call to Wallace's home.

During the investigation, Drug Enforcement Agency ("DEA") agents found copies of six Express Mail packages of similar weight sent from California to "Kim Smith." One of the packages identified on the return address a Jean Wallace of 435 East 84th Place, Los Angeles, California. Wallace's mother's address was 433 East 84th Place in Los Angeles. The defendant's middle name is Jean. Security cameras at the post office in Los Angeles showed Wallace and her boyfriend Dameon White-Baber entering the post office and showed Wallace filling out the mailing label. The package included a doll that Wallace later claimed she was sending to a relative of White-Baber. The OxyContin was inside the packaging for the doll. The parties stipulated that Wallace completed the Express Mail label for packages mailed on May 28, 2004 and October 20, 2004, while White-Baber completed the labels for other packages sent to Amos' address. Wallace testified at her first trial that White-Baber's family referred to her as "Jean."

Additionally, on August 26, 2004, Wallace and White-Baber went to a Western Union Office to cash a five hundred dollar money order in Wallace's name. At her initial trial, Wallace testified that she did not end up with any of the cash. At the second trial, the Western Union clerk testified that office policy would have been to hand the money to Wallace, since the wire was in her name, and she signed for it. At the second trial, Wallace clarified that she did not remember whether the money was initially handed to her but insisted that White-Baber ended up with it eventually.

Wallace was charged on August 24, 2005 with a four-count indictment for conspiracy to possess with intent to distribute and to distribute OxyContin in violation of 21 U.S.C. § 841(a)(1) and misuse of a communications facility in connection with a drug offense in violation of 21 U.S.C. § 843(b). Wallace was added to a previous indictment that had included Wardell Amos and Dameon White-Baber. A Fifth Superceding Indictment removed Amos from the indictment, following his plea, and added a second count against Wallace for use of a communication facility to commit a drug crime in violation of 21 U.S.C. § 843(b).

The first trial commenced on December 5, 2006 and continued until December 13, 2006, when a mistrial was declared because the jury could not reach an unanimous verdict. On February 28, 2007, a Sixth Superceding Indictment was issued only against Wallace. It included the five drug charges from the previous indictment and added two counts of perjury, in violation of 18 U.S.C. § 1621, based on Wallace's testimony at her trial. At a status conference on April 5, 2007 before the district judge, Wallace and her counsel specifically stated that they had discussed making a motion to sever the perjury and drug charges. Wallace stated that she understood that she could ask to separate the perjury and drug charges, but she wanted to try all counts together. The second trial began on May 15, 2007, and the drug and perjury charges were tried together. Defendant filed a motion for acquittal pursuant to Rule 29 of Federal Rules of Criminal Procedure that was denied. The jury convicted her of all counts. Wallace was sentenced to seventy-eight months in prison. She timely filed an appeal of both the conviction and the sentence.

DISCUSSION

I. Joinder of Drug and Perjury Charges.

Defendant's first argument challenging her conviction is that the joinder of

[597 F.3d 798]

the drug and perjury charges was improper. It is unclear from Defendant's briefing whether she challenges the indictment itself as improper or the actual joinder at trial, nor is it clear that the analysis would be different based on which of those two things Wallace was actually challenging. No matter what she is challenging, the verdict must stand because Defendant waived her right to separate trials on the drug and perjury counts and has suffered no constitutional harm as a result of all charges being tried together in a single trial. Defendant admits that she did not object to the joinder of the drug and perjury charges pursuant to Federal Rule of Criminal Procedure 14. Under Federal Rule of Criminal Procedure 12(b)(3), a Rule 14 motion to sever charges must be raised before trial. Under Rule 12(e), any Rule 12(b)(3) objection is waived if not made in the allotted time prior to trial. A court may grant relief from the waiver "for good cause." Fed.R.Crim.P. 12(e) ("A party waives any Rule 12(b)(3) defense, objection, or request not raised by the deadline the court sets under Rule 12(c) or by any extension the court provides. For good cause, the court may grant relief from the waiver.").

Defendant argues that her failure to object to the allegedly prejudicial joinder means that the district court's decision should be considered subject to plain error review. For support, she cites United States v. Abboud, 438 F.3d 554 (6th Cir. 2006). Abboud is silent on the standard of review for these claims. That case dealt with a defendant's challenge to an indictment that charged as separate counts each check in a check kiting scheme. The defendant had not made a proper objection, and the Court analyzed whether the argument was therefore waived. The principal relevant holding is that even if a defendant fails to object to the procedural violation of an improper indictment, she can still make substantive objections, such as a double jeopardy claim. In Abboud, this Court found that the defendant had failed to make any substantive objections, and that even if he had, his claim of multiplicity in the indictment, based on separate counts for each check, lacked merit. Certainly "plain error" is the general rule for appellate review of a district court decision where a party failed to object, but in this case, Wallace's appeal would fail under any standard.

While Abboud provides the framework for how to analyze a substantive challenge to the improper joinder-of counts for trial, Wallace fails to present her arguments in that framework. Wallace's primary challenge is to the joinder of the perjury and drug charges, but she goes beyond the alleged defectiveness of the indictment to argue that the government improperly shifted the burden and took away Wallace's Fifth Amendment right to silence on the drug charges. To begin, Wallace makes a broad challenge to the joinder of both the perjury and drug counts. It is uncontested that Defendant waived any right she might have had to contest the joinder of these charges for trial. In fact, Defendant stated affirmatively, on the record, that she preferred to have just one trial. (J.A. 465-66). The clear-meaning of Rule 12(b)(3) indicates that Wallace waived the right to make this argument before this Court. See Abboud, 438 F.3d at 567 (finding Defendant who did not make a Rule 12 objection could not challenge the indictment and could only challenge independent "substantive" errors); see also, United States v. Sturman, 951 F.2d 1466, 1476 (6th Cir.1991) (finding a severance argument waived when it was not renewed during trial).

Wallace never explains the basis for her argument that she has not waived her right to contest this issue, nor does she

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argue that this Court should grant relief from the waiver for "good cause." The cases...