No. 07-2074 IN THE UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT UNITED STATES OF AMERICA, Plaintiff-Appellee v. WAYLAND MULLINS, Defendant-Appellant ON APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF MICHIGAN PROOF BRIEF FOR THE UNITED STATES AS PLAINTIFF-APPELLEE GRACE CHUNG BECKER Acting Assistant Attorney General Civil Rights Division DIANA K. FLYNN DIRK C. PHILLIPS Attorneys U.S. Department of Justice Civil Rights Division Appellate Section Ben Franklin Station P.O. Box 14403 Washington, D.C. 20044-4403 (202) 305-4876
55
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IN THE UNITED STATES COURT OF APPEALS FOR THE SIXTH ... · defendant, Wayland Mullins, and a co-conspirator, Michael Richardson, with conspiracy against rights in violation of 18
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Transcript
No 07-2074
IN THE UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT
UNITED STATES OF AMERICA
Plaintiff-Appellee
v
WAYLAND MULLINS
Defendant-Appellant
ON APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF MICHIGAN
PROOF BRIEF FOR THE UNITED STATES AS PLAINTIFF-APPELLEE
GRACE CHUNG BECKER Acting Assistant Attorney General Civil Rights Division
DIANA K FLYNN DIRK C PHILLIPS Attorneys US Department of Justice Civil Rights Division Appellate Section Ben Franklin Station PO Box 14403 Washington DC 20044-4403 (202) 305-4876
STATEMENT REGARDING ORAL ARGUMENT
Because the issues presented in this appeal are straightforward the United
States does not believe that oral argument is necessary However the United
States does not object to oral argument should the Court feel it would be useful
I
TABLE OF CONTENTS PAGE
STATEMENT REGARDING ORAL ARGUMENT
STATEMENT OF JURISDICTION 1
ISSUES PRESENTED 1
STATEMENT OF THE CASE 2
STATEMENT OF THE FACTS
1
3
General Background 4
2 Defendantrsquos Reaction To The Dostersrsquo Purchase Of The 4 Ziegler Property
3 The Fire 6
4
5
01 Subsequent Intimidatory Actions Against The Dosters
Defendantrsquos Admissions Of Motive And Responsibility 12
6 31 Defendantrsquos Statements To The Government
SUMMARY OF ARGUMENT 51
ARGUMENT 71
ANY ERROR WITH REGARD TO THE CHALLENGED STATEMENTS CONSTITUTES ldquoINVITED ERRORrdquo
81AND THUS SHOULD NOT BE REVIEWED BY THIS COURT
A
B
81 Standard Of Review
91 The Invited-Error Doctrine
II
TABLE OF CONTENTS (continued) PAGE
C Any Error By The District Court In Permitting The Challenged Statements Was Invited Error And Therefore Should Not Be
02 Reviewed By This Court
THE DISTRICT COURT DID NOT COMMIT PLAIN ERROR IN FAILING TO SUA SPONTE PREVENT DEFENDANTrsquoS TRIAL COUNSEL FROM ELICITING THE CHALLENGED TESTIMONY 42
A The Plain-Error Doctrine 25
B
C
62 Defendant Fails To Argue Plain Error On Appeal
The Third And Fourth Prongs Of The Plain-Error Doctrine Are Not Satisfied In This Case Because Other Evidence Supporting
72 Defendantrsquos Conviction Is Overwhelming
1
2
92 Defendantrsquos Statements Prior To The Fire
Eyewitness and Expert Testimony Regarding 03 The Fire
23 Defendantrsquos Confession3
4 Defendantrsquos Statements To The FBI 33
5 The Challenged Statements Had No Impact On The Proceeding Below 34
D Defendant Fails To Demonstrate Error In The First Instance 34
III THE RECORD DOES NOT SUPPORT DEFENDANTrsquoS 63 INEFFECTIVE-ASSISTANCE-OF-COUNSEL CLAIM
A 63 Standard Of Review
- ii shy
TABLE OF CONTENTS (continued) PAGE
B The Record In This Direct Appeal Is Insufficient To Permit 63 Review Of Defendantrsquos Claim
C The Evidence That Is Available In The Record Does Not Support A Finding Of Ineffective Assistance Of Counsel 39
1 Standard For Establishing Ineffective Assistance Of 04 Counsel
2 Defendant Is Unable To Demonstrate Sufficient Prejudice And Therefore Cannot Satisfy The Second Prong Of The Inquiry 14
CONCLUSION 24
CERTIFICATE OF COMPLIANCE
CERTIFICATE OF SERVICE
APPELLEErsquoS DESIGNATION OF APPENDIX CONTENTS
- iii shy
TABLE OF AUTHORITIES
CASES PAGE
Campbell v United States 364 F3d 727 (6th Cir 2004) 14 cert denied 543 US 1119 (2005)
Harrison v Motley 478 F3d 750 (6th Cir) 14 cert denied 128 S Ct 444 (2007)
Hicks v Collins 384 F3d 204 (6th Cir 2004) 14 cert denied 545 US 1155 (2005)
Ivory v Jackson 509 F3d 284 (6th Cir 2007) 04 cert denied 128 S Ct 1897 (2008)
Johnson v United States 520 US 461 (1997) 27-28
83 350 US 91 (1955) Michel v Louisiana
Strickland v Washington 466 US 668 (1984) passim
United States v Abboud 438 F3d 554 (6th Cir) cert denied 127 S Ct 446 (2006) 26 34-35
12 38 Fed Appx 200 (6th Cir 2002) United States v Ali
United States v Allison 59 F3d 43 (6th Cir) 83 cert denied 516 US 1002 (1995)
United States v Arnold 486 F3d 177 (6th Cir 2007) cert denied 128 S Ct 871 (2008) passim
United States v Baker 432 F3d 1189 (11th Cir 2005) cert denied 547 US 1085 (2006) 20-21
United States v Barrow 118 F3d 482 (6th Cir 1997) 20-21
- iv shy
CASES (continued) PAGE
82 453 F3d 893 (7th Cir 2006) United States v Birk
73 332 F3d 363 (6th Cir 2003) United States v Brown
52 26 F3d 1380 (6th Cir 1994) United States v Carroll
72 535 US 625 (2002) United States v Cotton
52 957 F2d 264 (6th Cir 1992) United States v Cox
United States v Davis 306 F3d 398 (6th Cir 2002) 73 cert denied 537 US 1208 (2003)
United States v Dedhia 134 F3d 802 (6th Cir) 82 cert denied 523 US 1145 (1998)
73 194 F3d 730 (6th Cir 1999) United States v Fortson
73 415 F3d 537 (6th Cir 2005) United States v Franklin
02 980 F2d 1110 (7th Cir 1992) United States v Fulford
52445 (6th Cir 2006) 463 F3d United States v Gardiner
United States v Graham 484 F3d 413 (6th Cir 2007) 63 cert denied 128 S Ct 1703 (2008)
United States v Hadley 431 F3d 484 (6th Cir 2005) 81 cert denied 127 S Ct 47 (2006)
United States v Hines 398 F3d 713 (6th Cir) cert denied 545 US 1134 (2005) 27-28
United States v Hynes 467 F3d 951 (6th Cir 2006) 37 40
- v shy
CASES (continued) PAGE
United States v Jackson 124 F3d 607 (4th Cir 1997) 91 cert denied 522 US 1066 (1998)
United States v Layne 192 F3d 556 (6th Cir 1999) cert denied 529 US 1029 (2000) 26 35
United States v Lopez-Medina 461 F3d 724 (6th Cir 2006) 37-38
United States v Martinez 430 F3d 317 (6th Cir 2005) cert denied 547 US 1034 (2006) 36-37
United States v McGhee 119 F3d 422 (6th Cir 1997)
United States v Mooneyham 473 F3d 280 (6th Cir)
82
cert denied 128 S Ct 531 (2007) 25 27 34
United States v Namey 364 F3d 843 (6th Cir) cert denied 543 US 875 (2004) 19 24
United States v Neal 78 F3d 901 (4th Cir 1996) 21 23
52 507 US 725 (1993) United States v Olano
12 858 F2d 688 (11th Cir 1988) United States v Parikh
52 516 F3d 479 (6th Cir 2008) United States v Phillips
United States v Reyes-Alvarado 963 F2d 1184 (9th Cir) cert denied 506 US 890 (1992) 21-22
22 199 F3d 821 (6th Cir 1999) SamourvUnited States
83 48 F3d 198 (6th Cir 1995) United States v Snow
83 431 F3d 976 (6th Cir 2005) United States v Sullivan
- vi shy
CASES (continued) PAGE
02 111 F3d 482 (6th Cir 1997) United States v Tandon
United States v Taylor 284 F3d 95 (1st Cir) cert denied 536 US 933 (2002) 82
63 382 F3d 598 (6th Cir 2004) United States v Wagner
United States v Winkle 477 F3d 407 (6th Cir 2007) 73
63 919 F2d 34 (6th Cir 1990) United States v Wunder
STATUTES
18 USC 2 2
2
2
2
18 USC 241
18 USC 371
18 USC 844(h)(1)
18 US
2 42 US C 3631(a)
1 3742 C
- vii shy
IN THE UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT
No 07-2074
UNITED STATES OF AMERICA
Plaintiff-Appellee
v
WAYLAND MULLINS
Defendant-Appellant
ON APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF MICHIGAN
PROOF BRIEF FOR THE UNITED STATES AS PLAINTIFF-APPELLEE
STATEMENT OF JURISDICTION
The government concurs in defendantrsquos jurisdictional statement except with
respect to defendantrsquos reference to 18 USC 3742 Section 3742 addresses
appellate review of sentences imposed on criminal defendants Because defendant
has not challenged his sentence Section 3742 is not applicable here
review by this Court when he elicited allegedly inadmissible testimony during
cross-examination of a government witness
2 Whether in the absence of invited error the district court committed
plain error by not acting sua sponte to prevent defendantrsquos trial counsel from
eliciting the challenged testimony
3 Whether the record is sufficient to permit this Court to address
defendantrsquos claim of ineffective assistance of counsel and if so whether the claim
has merit
STATEMENT OF THE CASE
On January 5 2006 a federal grand jury returned an indictment charging
defendant Wayland Mullins and a co-conspirator Michael Richardson with
conspiracy against rights in violation of 18 USC 241 (Count I) interference with
housing rights in violation of 42 USC 3631(a) and 18 USC 2 (Count II) use of
fire in the commission of a felony in violation of 18 USC 2 and 18 USC
844(h)(1) (Count III) and conspiracy to obstruct justice in violation of 18 USC
371 (Count IV) (R 1 at 1-8 Apx ___)1 Richardson pled guilty to all four
1 Citations to ldquoR rdquo refer to documents in the district court record Citations to ldquoR __rdquo refer to notations in the district court record for which there is no docket number Citations to ldquo Tr rdquo refer by date and page number to the trial transcript Citations to ldquoBr rdquo refer to Defendant-Appellantrsquos Proof
(continued)
-3shy
counts on September 21 2006 (R 92106 plea hearing) Defendant went to
trial on these charges in November 2006 but the jury was unable to reach a
verdict The district court declared a mistrial on November 17 2006 (R
111706 declaration of mistrial)
On December 14 2006 a federal grand jury returned a superseding
indictment charging defendant and another co-conspirator Ricky Cotton with the
same four counts described above Cotton pled guilty to Count I on April 12
2007 (R 41207 plea hearing) Defendant again proceeded to trial and on
April 20 2007 was convicted on all four counts (R 70 Apx __)
On August 28 2007 the district court sentenced defendant to 207 monthsrsquo
imprisonment and ordered him to pay $12400 in restitution (R 78 at 3-6 Apx
___) This appeal followed
STATEMENT OF THE FACTS
From the evidence presented at trial the jury reasonably could have found
the following facts which are set forth in the light most favorable to the
government
1(continued)
Brief On Appeal
-4shy
1 General Background
In 2002 Reginald Doster and his family purchased a home located at 5948
Ziegler Street in Taylor Michigan They made a down payment in February with
the understanding that the transaction would not close until July (Doster 417 Tr
125 138 Apx __) Between February 2002 and July 2002 the Dosters worked to
refurbish the property (Doster 417 Tr 125-126 Apx __) They finished this
process on or about July 28 2002 moved in during the latter part of October
2002 and lived there until approximately August 2005 (Doster 417 Tr 123
131-133 149-150 154 Apx __) Beginning before they moved in and continuing
throughout the time they lived on Ziegler Street the Dosters who are African-
American were the subject of racial slurs and racially-motivated actions by some
of their neighbors
2 Defendantrsquos Reaction To The Dostersrsquo Purchase Of The Ziegler Property
The Doster home was located across the street from the home in which
defendant grew up and in which his mother and other relatives still live (Doster
As such the Dostersrsquo purchase of and efforts to refurbish the house across
the street from the Mullins home did not go unnoticed by defendant or certain
other members of the neighborhood Indeed it was a topic of conversation among
those who were not happy about an African-American family moving into the
neighborhood (Daniely 418 Tr 17-18 Apx __)
During the period in which the Dosters were refurbishing the property
defendant made comments to friends regarding his desire to drive the Dosters from
the neighborhood One such incident occurred during the middle part of July
2002 (Wurts 417 Tr 208-209 Apx __) Defendant and a friend Guy Wurts
were standing in the back of Wurtsrsquo pickup truck which was parked in front of the
Mullins home (Wurts 417 Tr 202 Apx __) The Dosters were out working in
their yard at the time (Wurts 417 Tr 202-203 209 Apx __) Defendant said
something to the effect of ldquoI got to get rid of these niggers Irsquoll find something to
do I donrsquot know what I got to get these niggers out [of] the neighborhoodrdquo
(Wurts 417 Tr 209 Apx __)2 Defendant was looking in the Dostersrsquo direction
2 Similar descriptions of defendantrsquos statements appear elsewhere in Wurtsrsquo testimony (Wurts 417 Tr 201-202 209 260 Apx __)
-6shy
when he made these comments and said the word ldquoniggerrdquo loud enough for the
Dosters to hear it (Wurts 417 Tr 209-210 Apx __) Wurts testified that
defendant was a racist and that defendant ldquoseemed seriousrdquo when he made these
statements (Wurts 417 Tr 239-240 259-260 Apx __)
Debbie Daniely a neighbor and friend of the Mullins family (Daniely 418
Tr 6-8 Apx __) recounted similar statements by defendant Defendant told
Daniely more than once that he was very upset about the Dosters moving into the
neighborhood (Daniely 418 Tr 22 Apx __) She testified that defendant said
something to the effect of ldquoniggers are moving inrdquo and ldquo[w]e have to do something
about itrdquo (Daniely 418 Tr 23 Apx __)3 She believed he was serious when he
said such things (Daniely 418 Tr 25 Apx __)
3 The Fire
During the afternoon of Sunday July 28 2002 defendant along with Lee
Vanderlinden Don Flowers Chuck Proctor Michael Richardson and Ricky
Cotton4 were working in the yard of a neighbor Ann Hixon (Richardson 418
3 Defendant later admitted to the FBI that he made such a statement to Daniely (Rees 418 Tr 203 Apx __)
4 Lee Vanderlinden was the boyfriend of defendantrsquos mother and has lived in the Mullins home since at least 1996 or 1997 (Wurts 417 Tr 197-198 Apx __) Don Flowers was a friend of the Mullins family who often would socialize
(continued)
-7shy
Tr 56-58 Apx __)5 A group that included defendant Richardson Vanderlinden
Flowers and Cotton began making comments about ldquothe niggers next doorrdquo
(Richardson 418 Tr 58-59 Apx __) Richardson suggested burning a cross in
order to drive the Dosters away (Richardson 418 Tr 61 Apx __) Defendant
however went further suggesting they ldquo[t]orch the houserdquo and told the others to
come back later that night (Richardson 418 Tr 62-63 Apx __) Richardson
Vanderlinden Cotton and Flowers returned that evening and met defendant at the
Mullins home across the street from the Dosters (Richardson 418 Tr 63 Apx
__)6 They discussed ldquo[t]orchingrdquo the Doster home and all were in favor of doing
4(continued)
with Lee Vanderlinden at the Mullins home (Church 419 Tr 58-59 Apx __) Chuck Proctor worked with Lee Vanderlinden and often would hang around the Mullins home (Wurts 417 Tr 199-200 Apx __ Church 419 Tr 57-58 Apx __) Michael Richardson was a good friend of defendant who spent a lot of time at the Mullins home (Wurts 417 Tr 201 Apx __) Ricky Cotton lived nearby and also was a regular at the Mullins home (Wurts 417 Tr 200-201 Apx __) As noted above Richardson and Cotton both pled guilty in this case (R 92106 and 41207 plea hearings)
5 Ann Hixon was called by the defense and testified that this gathering could not have taken place on Sunday July 28 She testified that it occurred sometime during the Spring (she could not recall which year) and that it could not have been a Sunday because she always works on Sundays (Hixon 419 Tr 37shy38 Apx __)
Defendantrsquos aunt Casie Church lives in the Mullins home and was called to testify by defendant She stated that she was sitting on the front porch of the house during the late evening and early morning hours of July 28 and 29
(continued)
6
-8shy
so (Richardson 418 Tr 63 Apx __) Each of them encouraged defendant by
ldquo[e]gging him onrdquo and by ldquo[d]aringrdquo and ldquo[i]ncitingrdquo him to do so (Richardson
418 Tr 64 Apx __)
Defendant took a can of gasoline from the garage of the Mullins home and
went to the back of the Doster home (Richardson 418 Tr 64-65 Apx __)
Richardson Cotton Flowers and Vanderlinden served as lookouts with
Richardson following defendant to the Doster home and the other three remaining
across the street (Richardson 418 Tr 64-65 Apx __) Upon reaching the back
of the Doster home defendant either pried open or broke a window and poured
gasoline inside the house and on the windowsill (Richardson 418 Tr 65 111shy
114 Apx __)7 He then started the fire by holding a lighter up to the windowsill
and blowing until it ignited (Richardson 418 Tr 113 Apx __) Once the fire
was lit defendant and Richardson ran back across the street to join the others
where they celebrated and congratulated defendant (Richardson 418 Tr 65-66
6(continued)
(Church 419 Tr 45 Apx __) She testified that there was no one near the garage of the Mullins home during this time (Church 419 Tr 45 Apx __) But she stated that she did see someone named Mike sometime between 10 pm and 3 am (Church 419 Tr 45-46 Apx __)
7 Richardsonrsquos testimony indicates that it may have been a mixture of oil and gasoline (Richardson 418 Tr 65 Apx __)
-9shy
114-115 Apx __) Richardson testified that defendant set the fire because of the
Dostersrsquo race (Richardson 418 Tr 82 Apx __)
The Dosters had not yet moved into the Ziegler property and therefore were
not home at the time of the fire They had spent Sunday July 28 painting the
Ziegler property and left sometime between 7 pm and 8 pm (Doster 417 Tr
129 167-168 Apx __) Reginald Doster discovered there had been a fire when
he along with his wife and ten-year-old daughter returned to the home between 7
am and 9 am the next morning by which time the fire had burned out (Doster
doctrine recognizes that a court cannot be asked by counsel to take a step in a case
and later be convicted of error because it has complied with such requestrdquo)
(citation and internal quotations omitted) ldquoThis doctrine is a branch of the
doctrine of waiver by which courts prevent a party from inducing an erroneous
ruling and later seeking to profit from the legal consequences by having the
verdict vacatedrdquo Barrow 118 F3d at 490-491
Some courts have held that the existence of invited error forecloses any
-20shy
review ndash even for plain error See eg United States v Baker 432 F3d 1189
1216 (11th Cir 2005) cert denied 547 US 1085 (2006) (ldquoIt is a cardinal rule of
appellate review that a party may not challenge as error a ruling or other trial
proceeding invited by that party Where invited error exists it precludes a
court from invoking the plain error rule and reversingrdquo) United States v Fulford
980 F2d 1110 1116 (7th Cir 1992) (ldquoIt is well-settled that where error is invited
not even plain error permits reversalrdquo) This Court however has recognized an
exception holding that ldquo[i]nvited error does not foreclose relief when the
interests of justice demand otherwiserdquo Barrow 118 F3d at 491 In this Circuit
the question ldquo[w]hether the circumstances of a particular case justify deviation
from the normal rule of waiver under this doctrine is left largely to the discretion
of the appellate courtrdquo Ibid Nevertheless ldquo[u]nder the invited error doctrine an
error introduced by the complaining party will cause reversal only in the most
exceptional situationrdquo United States v Tandon 111 F3d 482 489 (6th Cir
1997) (citation and internal quotations omitted)
C Any Error By The District Court In Permitting The Challenged Statements Was Invited Error And Therefore Should Not Be Reviewed By This Court
Here all of the challenged statements were elicited by defendantrsquos retained
trial counsel Br 15-24 This plainly constitutes invited error See United States
-21shy
v Parikh 858 F2d 688 695 (11th Cir 1988) (ldquoWe hold that the admission of out
of court statements by a government witness when responding to an inquiry by
defense counsel creates lsquoinvited errorrsquordquo) See also Baker 432 F3d at 1215-1216
(defendant ldquocannot now complain about the district courtrsquos errorrdquo where his
counsel ldquoinvited the errorrdquo by eliciting hearsay during cross-examination) United
States v Neal 78 F3d 901 904 (4th Cir 1996) (defendant ldquoinvited the errorrdquo and
it therefore ldquoprovides no basis for reversalrdquo where ldquo[a]t trial [defendant] did not
object to any of the statements he now challengesrdquo and ldquomost were elicited by his
own attorney from a government witness during cross-examinationrdquo) United
States v Reyes-Alvarado 963 F2d 1184 1187 (9th Cir 1992) cert denied 506
US 890 (1992) (finding invited error and refusing to reverse where ldquoappellantrsquos
counsel solicited the testimony which he now claims should have been excludedrdquo
and ldquodid not seek to strike this testimony at the time it was givenrdquo)9
As a threshold matter it bears noting that defendant fails to acknowledge
the existence of invited error and makes no argument as to why ldquothe interests of
justicerdquo Barrow 118 F3d at 491 require this Court to refrain from applying the
invited-error doctrine Accordingly defendant has waived any right to invoke the
9 This Court has reached a similar conclusion albeit in an unpublished decision See United States v Ali 38 Fed Appx 220 224 (6th Cir Mar 26 2002) (unpublished)
-22shy
interests-of-justice exception recognized by this Court See United States v
Samour 199 F3d 821 822 n1 (6th Cir 1999) (defendant ldquowaived his right to
argue the applicability of [favorable precedent] by failing to raise the issue on
appealrdquo)
Even if not waived however the interests of justice do not require this
Court to depart from the general rule that relief is foreclosed by invited error The
challenged statements were not the result of mere oversight or an isolated error by
defendantrsquos trial counsel Rather this appears to be a classic example of trial
strategy gone awry ndash not a situation in which failure to reverse contravenes the
interests of justice Indeed in this case the interests of justice weigh in favor of
invoking the invited-error doctrine as defendant presumably sought to benefit
from eliciting the challenged statements and thus should not now be heard to
argue their inadmissibility simply because his strategy failed See Reyes-
Alvarado 963 F2d at 1187 (ldquoFrom the transcript it appears that counsel thought
his pursuit of this line of questioning might benefit his client His tactics
backfired and his client was convicted A defendant cannot have it both
ways This was invited error and therefore not grounds for reversalrdquo)
Moreover the governmentrsquos trial counsel showed an abundance of caution
by specifically raising the issue and asking whether it should be discussed at
-23shy
sidebar10 This too weighs against a finding that the interests of justice require
reversal See Neal 78 F3d at 904 (ldquoAt one point the prosecutor even tried to
warn [defendantrsquos] attorney about pursuing a line of questioning relating to the
defendantrsquos prior conduct but [defendantrsquos] attorney persisted Under these
circumstances [defendant] cannot complain of error which he himself has
invitedrdquo) (citation and internal quotations omitted)
Simply put this case precisely illustrates both the purpose behind the
10 The following exchange occurred when defense counsel elicited statements from the witness regarding what Ricky Cotton told the government
[Defense Counsel] Just tell us what Ricky Cotton said and let me -shytell us what obviously is hearsay Irsquoll sit down Tell us what Ricky Cotton -shy
[Government Counsel] Your Honor should we have a sidebar on this
[The Court] What for
[Government Counsel] Irsquom not sure to figure out where we are
[Defense Counsel] This is where we are what Ricky Cotton said
[The Court] Are you objecting
[Government Counsel] If he doesnrsquot have any objection to the witness saying what Ricky Cotton said thatrsquos fine
[Defense Counsel] Letrsquos go Tell us what Ricky Cotton said
(418 Tr 173-174 Apx __)
-24shy
invited-error doctrine and the need to enforce it strictly Defendantrsquos appeal does
not challenge any action by the government Nor does he take issue with the
district courtrsquos instructions to the jury the sufficiency of the evidence to support
his conviction or the reasonableness of his sentence He also does not contend the
district court improperly ruled on any objection made by his trial counsel Rather
his arguments on appeal arise solely from the actions of his own retained trial
counsel Such claims must be rejected on their face as a contrary rule would
create perverse incentives for defendants to invite some small amount of error in
every trial so as to create grounds for appeal Accordingly this Court should
apply the invited-error doctrine and affirm the judgment below without reaching
the question whether plain error exists
II
THE DISTRICT COURT DID NOT COMMIT PLAIN ERROR IN FAILING TO SUA SPONTE PREVENT DEFENDANTrsquoS TRIAL COUNSEL FROM
ELICITING THE CHALLENGED TESTIMONY
As noted above in Section IA if this Court determines that the invited-
error doctrine does not apply it should review admission of the challenged
statements for plain error United States v Namey 364 F3d 843 846 (6th Cir
2004)
-25shy
A The Plain-Error Doctrine
ldquoThe plain error doctrine mandates reversal only in exceptional
circumstances and only where the error is so plain that the trial judge and
prosecutor were derelict in countenancing itrdquo United States v Gardiner 463 F3d
445 459 (6th Cir 2006) (quoting United States v Carroll 26 F3d 1380 1383
(6th Cir 1994)) It ldquois to be used sparingly only in exceptional circumstances
and solely to avoid a miscarriage of justicerdquo United States v Phillips 516 F3d
479 487 (6th Cir 2008) (quoting United States v Cox 957 F2d 264 267 (6th
Cir 1992))
ldquoTo show plain error a defendant must establish the following (1) error
(2) that is plain and (3) that affects substantial rights If these three conditions are
met an appellate court may then exercise its discretion to notice a forfeited error
but only if (4) the error seriously affects the fairness integrity or public reputation
of judicial proceedingsrdquo United States v Arnold 486 F3d 177 194 (6th Cir
2007) cert denied 128 S Ct 871 (2008) (citation and internal quotations
omitted) ldquoThe phrase lsquoaffects substantial rightsrsquo lsquomeans prejudicial It must have
affected the outcome of the district court proceedingsrsquordquo United States v
(ldquo[I]ssues adverted to in a perfunctory manner unaccompanied by some effort at
developed argumentation are deemed waivedrdquo) (quoting McPherson v Kelsey
125 F3d 989 995-996 (6th Cir 1997))
-27shy
C The Third And Fourth Prongs Of The Plain-Error Doctrine Are Not Satisfied In This Case Because Other Evidence Supporting Defendantrsquos Conviction Is Overwhelming
Even if the issue were fully briefed a finding of plain error would be
improper because defendant cannot satisfy the third or fourth prongs of the
inquiry The third prong of the plain-error inquiry ndash ie the requirement that the
error ldquoaffects substantial rightsrdquo Arnold 486 F3d at 194 by ldquoaffect[ing] the
outcome of the district court proceedingsrdquo Mooneyham 473 F3d at 288 ndash is not
satisfied where the evidence against the defendant is overwhelming See
Mooneyham 473 F3d at 288 United States v Hines 398 F3d 713 718-719 (6th
Cir) cert denied 545 US 1134 (2005)
Likewise the fourth prong of the inquiry ndash ie the requirement that the
error be said to have ldquoseriously affect[ed] the fairness integrity or public
reputation of judicial proceedingsrdquo Arnold 486 F3d at 194 ndash also is not met when
other evidence is ldquooverwhelmingrdquo and ldquoessentially uncontrovertedrdquo See United
States v Cotton 535 US 625 632-633 (2002) Johnson v United States 520
US 461 469-470 (1997) Hines 398 F3d at 718-719 Indeed as both the
Supreme Court and this Court have recognized with regard to the fourth prong of
the inquiry in some cases ldquoit would be the reversal of a conviction which
would have th[e] effectrdquo of ldquoseriously affect[ing] the fairness integrity or public
-28shy
reputation of judicial proceedingsrdquo Johnson 520 US at 470 (internal quotations
omitted) (emphasis added) see also United States v McGhee 119 F3d 422 424shy
425 (6th Cir 1997) This is so because ldquo[r]eversal for error regardless of its effect
on the judgment encourages litigants to abuse the judicial process and bestirs the
public to ridicule itrdquo Johnson 520 US at 470 (citation and internal quotations
omitted) see also McGhee 119 F3d at 424-425
In view of the foregoing courts often cite the presence of overwhelming
evidence as the basis for concluding that a defendant has failed to meet both the
third and fourth prongs of the plain-error inquiry See Hines 398 F3d at 718-719
United States v Dedhia 134 F3d 802 809 (6th Cir) cert denied 523 US 1145
(1998) see also United States v Birk 453 F3d 893 898 (7th Cir 2006) United
States v Taylor 284 F3d 95 102 (1st Cir) cert denied 536 US 933 (2002)
This Court should follow that approach here as there is overwhelming evidence ndash
separate and apart from the challenged statements ndash to support defendantrsquos
conviction Specifically as explained more fully below testimony at trial
established that defendant (1) spoke openly to others during the weeks leading up
to the fire regarding his desire to force the Dosters from the neighborhood (2) was
the one who set the fire (3) confided to a friend afterward that he both set the fire
and performed the lawn job with the intent to drive the Dosters away because of
-29shy
their race and (4) told conflicting stories to the FBI during the course of its
investigation one of which included an admission that he was at least indirectly
involved in setting the fire
1 Defendantrsquos Statements Prior To The Fire
Two witnesses offered detailed accounts of conversations they had with
defendant prior to the date of the fire During these conversations defendant
expressed his desire to drive the Dosters from their home
Guy Wurts testified that in mid-July 2002 Defendant said something to the
effect of ldquoI got to get rid of these niggers Irsquoll find something to do I donrsquot know
what I got to get these niggers out [of] the neighborhoodrdquo (Wurts 417 Tr 208shy
209 Apx __) Wurts testified that defendant looked in the Dostersrsquo direction
when he made these comments and said the word ldquoniggerrdquo loud enough for the
Dosters ndash who were working in their yard at the time ndash to hear it (Wurts 417 Tr
202-203 209-210 Apx __) Wurts further testified that defendant ldquoseemed
seriousrdquo when he made these statements (Wurts 417 Tr 259 Apx __)
Debbie Daniely recounted similar statements by defendant Specifically
defendant told Daniely more than once that he was very upset about the Dosters
moving into the neighborhood saying something to the effect of ldquoniggers are
moving inrdquo and ldquo[w]e have to do something about itrdquo (Daniely 418 Tr 22-25
-30shy
Apx __) Defendant later admitted to the FBI that he made such a statement to
ldquo[t]his Court has lsquoroutinely concluded that such claims are best brought by a
defendant in a post-conviction proceeding under 28 USC sect 2255 so that the
-37shy
parties can develop an adequate record on the issuersquordquo Martinez 430 F3d at 338
(quoting United States v Brown 332 F3d 363 368 (6th Cir 2003)) ldquoThere is
however lsquoa narrow exceptionrsquo to this rule lsquowhen the existing record is adequate to
assess properly the merits of the claimrsquordquo United States v Hynes 467 F3d 951
969 (6th Cir 2006) (quoting United States v Franklin 415 F3d 537 555-556
(6th Cir 2005)) See also United States v Winkle 477 F3d 407 421 (6th Cir
2007) (ldquoThis Court typically will not review a claim of ineffective assistance on
direct appeal except in rare cases where the error is apparent from the existing
recordrdquo) (quoting United States v Lopez-Medina 461 F3d 724 737 (6th Cir
2006))
No basis exists for departing from the general rule against addressing
ineffective-assistance claims on direct appeal As this Court has noted ldquo[t]he trial
process contains a myriad of complex decisions that for strategic reasons are
sound when made but may appear unsound with the benefit of hindsightrdquo United
States v Davis 306 F3d 398 422 (6th Cir 2002) cert denied 537 US 1208
(2003) (quoting United States v Fortson 194 F3d 730 736 (6th Cir 1999))
Moreover ldquo[j]udicial scrutiny of counselrsquos performance must be highly
deferentialrdquo and ldquoa court must indulge a strong presumption that counselrsquos
conduct falls within the wide range of reasonable professional assistancerdquo
-38shy
Strickland v Washington 466 US 668 689 (1984) Thus to establish ineffective
assistance ldquothe defendant must overcome the presumption that under the
circumstances the challenged action lsquomight be considered sound trial strategyrsquordquo
Ibid (quoting Michel v Louisiana 350 US 91 101 (1955))
Here the decision by defendantrsquos retained trial counsel to elicit the
challenged statements during cross-examination of a government witness
undeniably constitutes an element of trial strategy that cannot be analyzed at this
stage of the proceedings In particular because this is a direct appeal there is no
evidence in the record regarding defense counselrsquos trial strategy This Court
repeatedly has refused to review ineffective-assistance claims under such
circumstances See eg Lopez-Medina 461 F3d at 737 (ldquoAbsent evidence
specifically addressing counselrsquos performance we cannot determine whether his
actions reflected a reasoned trial strategyrdquo) United States v Sullivan 431 F3d
976 986 (6th Cir 2005) (ldquoWithout an explanation from trial counsel as to why he
failed to call the alibi witness we have no basis to determine whether this decision
was the result of inadequate representation or reasonable trial strategyrdquo) United
States v Allison 59 F3d 43 47 (6th Cir) cert denied 516 US 1002 (1995)
(ldquo[T]he sparse record before this court does not reveal whether the attorneyrsquos
actions could be considered sound trial strategyrdquo) United States v Snow 48 F3d
-39shy
198 199 (6th Cir 1995) (ldquoThe record before this court simply is insufficient to
show whether the alleged wrongful acts could be considered sound trial
strategyrdquo) Thus defendantrsquos ineffective-assistance claim must be examined ndash if
at all ndash in a separate collateral proceeding brought pursuant to Section 2255
C The Evidence That Is Available In The Record Does Not Support A Finding Of Ineffective Assistance Of Counsel
As stated above the governmentrsquos position is that the current record is not
sufficient to permit this Court to address defendantrsquos ineffective-assistance claim
in this direct appeal However if the Court disagrees ndash or desires in the interest of
judicial economy to address defendantrsquos claim on direct appeal ndash it should reject
the claim because defendant fails to satisfy the second prong of the ineffective-
assistance inquiry11
11 The government does not concede that the first prong of the Strickland inquiry is satisfied in this case Rather as noted above it is not possible to resolve the issue at this point because the record does not indicate precisely what defendantrsquos trial counsel was thinking what his strategy was or why he elected to pursue certain lines of questioning In the event that defendant elects to bring a collateral challenge pursuant to Section 2255 the government reserves the right to address the first prong of Strickland inquiry and to further develop its argument as to the second prong The governmentrsquos decision not to do so in this brief is based on the incomplete nature of the record with regard to the Strickland inquiry and should not be construed as a waiver or forfeiture of any arguments relating to defendantrsquos ineffective-assistance claim
-40shy
1 Standard For Establishing Ineffective Assistance Of Counsel
To prove ineffective assistance of counsel under Strickland a defendant
first ldquomust demonstrate that counselrsquos performance fell lsquobelow the objective
standard of reasonablenessrsquordquo Ivory v Jackson 509 F3d 284 294 (6th Cir 2007)
cert denied 128 S Ct 1897 (2008) (quoting Strickland 466 US at 688)) ldquoThe
defendant must then demonstrate that lsquothere is a reasonable probability that but
for counselrsquos unprofessional errors the result of the proceeding would have been
different A reasonable probability is a probability sufficient to undermine the
confidence in the outcomersquordquo Ibid (quoting Strickland 466 US at 694)
Significantly this Court ldquoneed not decide whether defense counsel
performed deficiently if disposing of an ineffective-assistance claim on the ground
of lack of sufficient prejudice would be easierrdquo Hynes 467 F3d at 970 See also
Ivory 509 F3d at 294 (ldquo[A] court need not determine whether counselrsquos
performance was deficient before examining the prejudice suffered by the
defendant as a result of the alleged deficiencies If it is easier to dispose of
an ineffectiveness claim on the ground of lack of sufficient prejudice which we
expect will often be so that course should be followedrdquo) (quoting Strickland 466
US at 697)
-41shy
2 Defendant Is Unable To Demonstrate Sufficient Prejudice And Therefore Cannot Satisfy The Second Prong Of The Inquiry
ldquoTo show prejudice [defendant] must demonstrate that lsquothere is a
reasonable probability that but for counselrsquos unprofessional errors the result of
the proceeding would have been differentrsquordquo Harrison v Motley 478 F3d 750
756 (6th Cir) cert denied 128 S Ct 444 (2007) (quoting Strickland 466 US at
694)) As set forth above in Section IIC the evidence of defendantrsquos guilt is
overwhelming and the result therefore would not have been different absent the
challenged statements This Court repeatedly has determined that the second
prong of the Strickland inquiry is not met under such circumstances See eg
Harrison 478 F3d at 757 (defendant ldquofailed to show that his attorneysrsquo alleged
conflict of interest resulted in prejudicerdquo where ldquothe evidence admitted against
[defendant] at trial was lsquooverwhelmingrsquordquo) Hicks v Collins 384 F3d 204 215
(6th Cir 2004) cert denied 545 US 1155 (2005) (holding that defendant cannot
satisfy the second prong of Strickland where ldquothere was overwhelming evidence of
[defendantrsquos] guiltrdquo) Campbell v United States 364 F3d 727 736 (6th Cir
2004) cert denied 543 US 1119 (2005) (ldquoGiven the overwhelming evidence
establishing [defendantrsquos] guilt we believe that he would not have been able to
show that but for his attorneyrsquos failure to object to the prosecutorrsquos alleged
-42shy
misconduct the result would have been differentrdquo)
Accordingly even if this Court determines that the record is sufficient for it
to address defendantrsquos ineffective-assistance claim on direct appeal it should
reject this claim based on his failure to satisfy the second prong of the Strickland
inquiry
CONCLUSION
For the foregoing reasons this Court should affirm the judgment below
Respectfully submitted
GRACE CHUNG BECKER Acting Assistant Attorney General Civil Rights Division
DIANA K FLYNN DIRK C PHILLIPS Attorneys US Department of Justice Civil Rights Divisions Appellate Section Ben Franklin Station PO Box 14403 Washington DC 20044-4403 (202) 305-4876
CERTIFICATE OF COMPLIANCE
Pursuant to Federal Rule of Appellate Procedure 32(a)(7)(B) I hereby
certify that this brief is proportionally spaced 14-point Times New Roman font
Per WordPerfect 12 software the brief contains 9022 words excluding those
parts exempted by Federal Rule of Appellate Procedure 32(a)(7)(B)(iii)
DIRK C PHILLIPS Attorney
DATED June 18 2008
CERTIFICATE OF SERVICE
I hereby certify that on June 18 2008 a copy of the foregoing PROOF
BRIEF FOR THE UNITED STATES AS PLAINTIFF-APPELLEE was served by
first class mail postage prepaid on counsel of record at the following address
Joan E Morgan 2057 Orchard Lake Road Sylvan Lake MI 48320
DIRK C PHILLIPS Attorney
APPELLEErsquoS DESIGNATION OF APPENDIX CONTENTS
APPELLEErsquoS DESIGNATION OF APPENDIX CONTENTS
Appellee United States of America designates the following items to be
Because the issues presented in this appeal are straightforward the United
States does not believe that oral argument is necessary However the United
States does not object to oral argument should the Court feel it would be useful
I
TABLE OF CONTENTS PAGE
STATEMENT REGARDING ORAL ARGUMENT
STATEMENT OF JURISDICTION 1
ISSUES PRESENTED 1
STATEMENT OF THE CASE 2
STATEMENT OF THE FACTS
1
3
General Background 4
2 Defendantrsquos Reaction To The Dostersrsquo Purchase Of The 4 Ziegler Property
3 The Fire 6
4
5
01 Subsequent Intimidatory Actions Against The Dosters
Defendantrsquos Admissions Of Motive And Responsibility 12
6 31 Defendantrsquos Statements To The Government
SUMMARY OF ARGUMENT 51
ARGUMENT 71
ANY ERROR WITH REGARD TO THE CHALLENGED STATEMENTS CONSTITUTES ldquoINVITED ERRORrdquo
81AND THUS SHOULD NOT BE REVIEWED BY THIS COURT
A
B
81 Standard Of Review
91 The Invited-Error Doctrine
II
TABLE OF CONTENTS (continued) PAGE
C Any Error By The District Court In Permitting The Challenged Statements Was Invited Error And Therefore Should Not Be
02 Reviewed By This Court
THE DISTRICT COURT DID NOT COMMIT PLAIN ERROR IN FAILING TO SUA SPONTE PREVENT DEFENDANTrsquoS TRIAL COUNSEL FROM ELICITING THE CHALLENGED TESTIMONY 42
A The Plain-Error Doctrine 25
B
C
62 Defendant Fails To Argue Plain Error On Appeal
The Third And Fourth Prongs Of The Plain-Error Doctrine Are Not Satisfied In This Case Because Other Evidence Supporting
72 Defendantrsquos Conviction Is Overwhelming
1
2
92 Defendantrsquos Statements Prior To The Fire
Eyewitness and Expert Testimony Regarding 03 The Fire
23 Defendantrsquos Confession3
4 Defendantrsquos Statements To The FBI 33
5 The Challenged Statements Had No Impact On The Proceeding Below 34
D Defendant Fails To Demonstrate Error In The First Instance 34
III THE RECORD DOES NOT SUPPORT DEFENDANTrsquoS 63 INEFFECTIVE-ASSISTANCE-OF-COUNSEL CLAIM
A 63 Standard Of Review
- ii shy
TABLE OF CONTENTS (continued) PAGE
B The Record In This Direct Appeal Is Insufficient To Permit 63 Review Of Defendantrsquos Claim
C The Evidence That Is Available In The Record Does Not Support A Finding Of Ineffective Assistance Of Counsel 39
1 Standard For Establishing Ineffective Assistance Of 04 Counsel
2 Defendant Is Unable To Demonstrate Sufficient Prejudice And Therefore Cannot Satisfy The Second Prong Of The Inquiry 14
CONCLUSION 24
CERTIFICATE OF COMPLIANCE
CERTIFICATE OF SERVICE
APPELLEErsquoS DESIGNATION OF APPENDIX CONTENTS
- iii shy
TABLE OF AUTHORITIES
CASES PAGE
Campbell v United States 364 F3d 727 (6th Cir 2004) 14 cert denied 543 US 1119 (2005)
Harrison v Motley 478 F3d 750 (6th Cir) 14 cert denied 128 S Ct 444 (2007)
Hicks v Collins 384 F3d 204 (6th Cir 2004) 14 cert denied 545 US 1155 (2005)
Ivory v Jackson 509 F3d 284 (6th Cir 2007) 04 cert denied 128 S Ct 1897 (2008)
Johnson v United States 520 US 461 (1997) 27-28
83 350 US 91 (1955) Michel v Louisiana
Strickland v Washington 466 US 668 (1984) passim
United States v Abboud 438 F3d 554 (6th Cir) cert denied 127 S Ct 446 (2006) 26 34-35
12 38 Fed Appx 200 (6th Cir 2002) United States v Ali
United States v Allison 59 F3d 43 (6th Cir) 83 cert denied 516 US 1002 (1995)
United States v Arnold 486 F3d 177 (6th Cir 2007) cert denied 128 S Ct 871 (2008) passim
United States v Baker 432 F3d 1189 (11th Cir 2005) cert denied 547 US 1085 (2006) 20-21
United States v Barrow 118 F3d 482 (6th Cir 1997) 20-21
- iv shy
CASES (continued) PAGE
82 453 F3d 893 (7th Cir 2006) United States v Birk
73 332 F3d 363 (6th Cir 2003) United States v Brown
52 26 F3d 1380 (6th Cir 1994) United States v Carroll
72 535 US 625 (2002) United States v Cotton
52 957 F2d 264 (6th Cir 1992) United States v Cox
United States v Davis 306 F3d 398 (6th Cir 2002) 73 cert denied 537 US 1208 (2003)
United States v Dedhia 134 F3d 802 (6th Cir) 82 cert denied 523 US 1145 (1998)
73 194 F3d 730 (6th Cir 1999) United States v Fortson
73 415 F3d 537 (6th Cir 2005) United States v Franklin
02 980 F2d 1110 (7th Cir 1992) United States v Fulford
52445 (6th Cir 2006) 463 F3d United States v Gardiner
United States v Graham 484 F3d 413 (6th Cir 2007) 63 cert denied 128 S Ct 1703 (2008)
United States v Hadley 431 F3d 484 (6th Cir 2005) 81 cert denied 127 S Ct 47 (2006)
United States v Hines 398 F3d 713 (6th Cir) cert denied 545 US 1134 (2005) 27-28
United States v Hynes 467 F3d 951 (6th Cir 2006) 37 40
- v shy
CASES (continued) PAGE
United States v Jackson 124 F3d 607 (4th Cir 1997) 91 cert denied 522 US 1066 (1998)
United States v Layne 192 F3d 556 (6th Cir 1999) cert denied 529 US 1029 (2000) 26 35
United States v Lopez-Medina 461 F3d 724 (6th Cir 2006) 37-38
United States v Martinez 430 F3d 317 (6th Cir 2005) cert denied 547 US 1034 (2006) 36-37
United States v McGhee 119 F3d 422 (6th Cir 1997)
United States v Mooneyham 473 F3d 280 (6th Cir)
82
cert denied 128 S Ct 531 (2007) 25 27 34
United States v Namey 364 F3d 843 (6th Cir) cert denied 543 US 875 (2004) 19 24
United States v Neal 78 F3d 901 (4th Cir 1996) 21 23
52 507 US 725 (1993) United States v Olano
12 858 F2d 688 (11th Cir 1988) United States v Parikh
52 516 F3d 479 (6th Cir 2008) United States v Phillips
United States v Reyes-Alvarado 963 F2d 1184 (9th Cir) cert denied 506 US 890 (1992) 21-22
22 199 F3d 821 (6th Cir 1999) SamourvUnited States
83 48 F3d 198 (6th Cir 1995) United States v Snow
83 431 F3d 976 (6th Cir 2005) United States v Sullivan
- vi shy
CASES (continued) PAGE
02 111 F3d 482 (6th Cir 1997) United States v Tandon
United States v Taylor 284 F3d 95 (1st Cir) cert denied 536 US 933 (2002) 82
63 382 F3d 598 (6th Cir 2004) United States v Wagner
United States v Winkle 477 F3d 407 (6th Cir 2007) 73
63 919 F2d 34 (6th Cir 1990) United States v Wunder
STATUTES
18 USC 2 2
2
2
2
18 USC 241
18 USC 371
18 USC 844(h)(1)
18 US
2 42 US C 3631(a)
1 3742 C
- vii shy
IN THE UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT
No 07-2074
UNITED STATES OF AMERICA
Plaintiff-Appellee
v
WAYLAND MULLINS
Defendant-Appellant
ON APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF MICHIGAN
PROOF BRIEF FOR THE UNITED STATES AS PLAINTIFF-APPELLEE
STATEMENT OF JURISDICTION
The government concurs in defendantrsquos jurisdictional statement except with
respect to defendantrsquos reference to 18 USC 3742 Section 3742 addresses
appellate review of sentences imposed on criminal defendants Because defendant
has not challenged his sentence Section 3742 is not applicable here
review by this Court when he elicited allegedly inadmissible testimony during
cross-examination of a government witness
2 Whether in the absence of invited error the district court committed
plain error by not acting sua sponte to prevent defendantrsquos trial counsel from
eliciting the challenged testimony
3 Whether the record is sufficient to permit this Court to address
defendantrsquos claim of ineffective assistance of counsel and if so whether the claim
has merit
STATEMENT OF THE CASE
On January 5 2006 a federal grand jury returned an indictment charging
defendant Wayland Mullins and a co-conspirator Michael Richardson with
conspiracy against rights in violation of 18 USC 241 (Count I) interference with
housing rights in violation of 42 USC 3631(a) and 18 USC 2 (Count II) use of
fire in the commission of a felony in violation of 18 USC 2 and 18 USC
844(h)(1) (Count III) and conspiracy to obstruct justice in violation of 18 USC
371 (Count IV) (R 1 at 1-8 Apx ___)1 Richardson pled guilty to all four
1 Citations to ldquoR rdquo refer to documents in the district court record Citations to ldquoR __rdquo refer to notations in the district court record for which there is no docket number Citations to ldquo Tr rdquo refer by date and page number to the trial transcript Citations to ldquoBr rdquo refer to Defendant-Appellantrsquos Proof
(continued)
-3shy
counts on September 21 2006 (R 92106 plea hearing) Defendant went to
trial on these charges in November 2006 but the jury was unable to reach a
verdict The district court declared a mistrial on November 17 2006 (R
111706 declaration of mistrial)
On December 14 2006 a federal grand jury returned a superseding
indictment charging defendant and another co-conspirator Ricky Cotton with the
same four counts described above Cotton pled guilty to Count I on April 12
2007 (R 41207 plea hearing) Defendant again proceeded to trial and on
April 20 2007 was convicted on all four counts (R 70 Apx __)
On August 28 2007 the district court sentenced defendant to 207 monthsrsquo
imprisonment and ordered him to pay $12400 in restitution (R 78 at 3-6 Apx
___) This appeal followed
STATEMENT OF THE FACTS
From the evidence presented at trial the jury reasonably could have found
the following facts which are set forth in the light most favorable to the
government
1(continued)
Brief On Appeal
-4shy
1 General Background
In 2002 Reginald Doster and his family purchased a home located at 5948
Ziegler Street in Taylor Michigan They made a down payment in February with
the understanding that the transaction would not close until July (Doster 417 Tr
125 138 Apx __) Between February 2002 and July 2002 the Dosters worked to
refurbish the property (Doster 417 Tr 125-126 Apx __) They finished this
process on or about July 28 2002 moved in during the latter part of October
2002 and lived there until approximately August 2005 (Doster 417 Tr 123
131-133 149-150 154 Apx __) Beginning before they moved in and continuing
throughout the time they lived on Ziegler Street the Dosters who are African-
American were the subject of racial slurs and racially-motivated actions by some
of their neighbors
2 Defendantrsquos Reaction To The Dostersrsquo Purchase Of The Ziegler Property
The Doster home was located across the street from the home in which
defendant grew up and in which his mother and other relatives still live (Doster
As such the Dostersrsquo purchase of and efforts to refurbish the house across
the street from the Mullins home did not go unnoticed by defendant or certain
other members of the neighborhood Indeed it was a topic of conversation among
those who were not happy about an African-American family moving into the
neighborhood (Daniely 418 Tr 17-18 Apx __)
During the period in which the Dosters were refurbishing the property
defendant made comments to friends regarding his desire to drive the Dosters from
the neighborhood One such incident occurred during the middle part of July
2002 (Wurts 417 Tr 208-209 Apx __) Defendant and a friend Guy Wurts
were standing in the back of Wurtsrsquo pickup truck which was parked in front of the
Mullins home (Wurts 417 Tr 202 Apx __) The Dosters were out working in
their yard at the time (Wurts 417 Tr 202-203 209 Apx __) Defendant said
something to the effect of ldquoI got to get rid of these niggers Irsquoll find something to
do I donrsquot know what I got to get these niggers out [of] the neighborhoodrdquo
(Wurts 417 Tr 209 Apx __)2 Defendant was looking in the Dostersrsquo direction
2 Similar descriptions of defendantrsquos statements appear elsewhere in Wurtsrsquo testimony (Wurts 417 Tr 201-202 209 260 Apx __)
-6shy
when he made these comments and said the word ldquoniggerrdquo loud enough for the
Dosters to hear it (Wurts 417 Tr 209-210 Apx __) Wurts testified that
defendant was a racist and that defendant ldquoseemed seriousrdquo when he made these
statements (Wurts 417 Tr 239-240 259-260 Apx __)
Debbie Daniely a neighbor and friend of the Mullins family (Daniely 418
Tr 6-8 Apx __) recounted similar statements by defendant Defendant told
Daniely more than once that he was very upset about the Dosters moving into the
neighborhood (Daniely 418 Tr 22 Apx __) She testified that defendant said
something to the effect of ldquoniggers are moving inrdquo and ldquo[w]e have to do something
about itrdquo (Daniely 418 Tr 23 Apx __)3 She believed he was serious when he
said such things (Daniely 418 Tr 25 Apx __)
3 The Fire
During the afternoon of Sunday July 28 2002 defendant along with Lee
Vanderlinden Don Flowers Chuck Proctor Michael Richardson and Ricky
Cotton4 were working in the yard of a neighbor Ann Hixon (Richardson 418
3 Defendant later admitted to the FBI that he made such a statement to Daniely (Rees 418 Tr 203 Apx __)
4 Lee Vanderlinden was the boyfriend of defendantrsquos mother and has lived in the Mullins home since at least 1996 or 1997 (Wurts 417 Tr 197-198 Apx __) Don Flowers was a friend of the Mullins family who often would socialize
(continued)
-7shy
Tr 56-58 Apx __)5 A group that included defendant Richardson Vanderlinden
Flowers and Cotton began making comments about ldquothe niggers next doorrdquo
(Richardson 418 Tr 58-59 Apx __) Richardson suggested burning a cross in
order to drive the Dosters away (Richardson 418 Tr 61 Apx __) Defendant
however went further suggesting they ldquo[t]orch the houserdquo and told the others to
come back later that night (Richardson 418 Tr 62-63 Apx __) Richardson
Vanderlinden Cotton and Flowers returned that evening and met defendant at the
Mullins home across the street from the Dosters (Richardson 418 Tr 63 Apx
__)6 They discussed ldquo[t]orchingrdquo the Doster home and all were in favor of doing
4(continued)
with Lee Vanderlinden at the Mullins home (Church 419 Tr 58-59 Apx __) Chuck Proctor worked with Lee Vanderlinden and often would hang around the Mullins home (Wurts 417 Tr 199-200 Apx __ Church 419 Tr 57-58 Apx __) Michael Richardson was a good friend of defendant who spent a lot of time at the Mullins home (Wurts 417 Tr 201 Apx __) Ricky Cotton lived nearby and also was a regular at the Mullins home (Wurts 417 Tr 200-201 Apx __) As noted above Richardson and Cotton both pled guilty in this case (R 92106 and 41207 plea hearings)
5 Ann Hixon was called by the defense and testified that this gathering could not have taken place on Sunday July 28 She testified that it occurred sometime during the Spring (she could not recall which year) and that it could not have been a Sunday because she always works on Sundays (Hixon 419 Tr 37shy38 Apx __)
Defendantrsquos aunt Casie Church lives in the Mullins home and was called to testify by defendant She stated that she was sitting on the front porch of the house during the late evening and early morning hours of July 28 and 29
(continued)
6
-8shy
so (Richardson 418 Tr 63 Apx __) Each of them encouraged defendant by
ldquo[e]gging him onrdquo and by ldquo[d]aringrdquo and ldquo[i]ncitingrdquo him to do so (Richardson
418 Tr 64 Apx __)
Defendant took a can of gasoline from the garage of the Mullins home and
went to the back of the Doster home (Richardson 418 Tr 64-65 Apx __)
Richardson Cotton Flowers and Vanderlinden served as lookouts with
Richardson following defendant to the Doster home and the other three remaining
across the street (Richardson 418 Tr 64-65 Apx __) Upon reaching the back
of the Doster home defendant either pried open or broke a window and poured
gasoline inside the house and on the windowsill (Richardson 418 Tr 65 111shy
114 Apx __)7 He then started the fire by holding a lighter up to the windowsill
and blowing until it ignited (Richardson 418 Tr 113 Apx __) Once the fire
was lit defendant and Richardson ran back across the street to join the others
where they celebrated and congratulated defendant (Richardson 418 Tr 65-66
6(continued)
(Church 419 Tr 45 Apx __) She testified that there was no one near the garage of the Mullins home during this time (Church 419 Tr 45 Apx __) But she stated that she did see someone named Mike sometime between 10 pm and 3 am (Church 419 Tr 45-46 Apx __)
7 Richardsonrsquos testimony indicates that it may have been a mixture of oil and gasoline (Richardson 418 Tr 65 Apx __)
-9shy
114-115 Apx __) Richardson testified that defendant set the fire because of the
Dostersrsquo race (Richardson 418 Tr 82 Apx __)
The Dosters had not yet moved into the Ziegler property and therefore were
not home at the time of the fire They had spent Sunday July 28 painting the
Ziegler property and left sometime between 7 pm and 8 pm (Doster 417 Tr
129 167-168 Apx __) Reginald Doster discovered there had been a fire when
he along with his wife and ten-year-old daughter returned to the home between 7
am and 9 am the next morning by which time the fire had burned out (Doster
doctrine recognizes that a court cannot be asked by counsel to take a step in a case
and later be convicted of error because it has complied with such requestrdquo)
(citation and internal quotations omitted) ldquoThis doctrine is a branch of the
doctrine of waiver by which courts prevent a party from inducing an erroneous
ruling and later seeking to profit from the legal consequences by having the
verdict vacatedrdquo Barrow 118 F3d at 490-491
Some courts have held that the existence of invited error forecloses any
-20shy
review ndash even for plain error See eg United States v Baker 432 F3d 1189
1216 (11th Cir 2005) cert denied 547 US 1085 (2006) (ldquoIt is a cardinal rule of
appellate review that a party may not challenge as error a ruling or other trial
proceeding invited by that party Where invited error exists it precludes a
court from invoking the plain error rule and reversingrdquo) United States v Fulford
980 F2d 1110 1116 (7th Cir 1992) (ldquoIt is well-settled that where error is invited
not even plain error permits reversalrdquo) This Court however has recognized an
exception holding that ldquo[i]nvited error does not foreclose relief when the
interests of justice demand otherwiserdquo Barrow 118 F3d at 491 In this Circuit
the question ldquo[w]hether the circumstances of a particular case justify deviation
from the normal rule of waiver under this doctrine is left largely to the discretion
of the appellate courtrdquo Ibid Nevertheless ldquo[u]nder the invited error doctrine an
error introduced by the complaining party will cause reversal only in the most
exceptional situationrdquo United States v Tandon 111 F3d 482 489 (6th Cir
1997) (citation and internal quotations omitted)
C Any Error By The District Court In Permitting The Challenged Statements Was Invited Error And Therefore Should Not Be Reviewed By This Court
Here all of the challenged statements were elicited by defendantrsquos retained
trial counsel Br 15-24 This plainly constitutes invited error See United States
-21shy
v Parikh 858 F2d 688 695 (11th Cir 1988) (ldquoWe hold that the admission of out
of court statements by a government witness when responding to an inquiry by
defense counsel creates lsquoinvited errorrsquordquo) See also Baker 432 F3d at 1215-1216
(defendant ldquocannot now complain about the district courtrsquos errorrdquo where his
counsel ldquoinvited the errorrdquo by eliciting hearsay during cross-examination) United
States v Neal 78 F3d 901 904 (4th Cir 1996) (defendant ldquoinvited the errorrdquo and
it therefore ldquoprovides no basis for reversalrdquo where ldquo[a]t trial [defendant] did not
object to any of the statements he now challengesrdquo and ldquomost were elicited by his
own attorney from a government witness during cross-examinationrdquo) United
States v Reyes-Alvarado 963 F2d 1184 1187 (9th Cir 1992) cert denied 506
US 890 (1992) (finding invited error and refusing to reverse where ldquoappellantrsquos
counsel solicited the testimony which he now claims should have been excludedrdquo
and ldquodid not seek to strike this testimony at the time it was givenrdquo)9
As a threshold matter it bears noting that defendant fails to acknowledge
the existence of invited error and makes no argument as to why ldquothe interests of
justicerdquo Barrow 118 F3d at 491 require this Court to refrain from applying the
invited-error doctrine Accordingly defendant has waived any right to invoke the
9 This Court has reached a similar conclusion albeit in an unpublished decision See United States v Ali 38 Fed Appx 220 224 (6th Cir Mar 26 2002) (unpublished)
-22shy
interests-of-justice exception recognized by this Court See United States v
Samour 199 F3d 821 822 n1 (6th Cir 1999) (defendant ldquowaived his right to
argue the applicability of [favorable precedent] by failing to raise the issue on
appealrdquo)
Even if not waived however the interests of justice do not require this
Court to depart from the general rule that relief is foreclosed by invited error The
challenged statements were not the result of mere oversight or an isolated error by
defendantrsquos trial counsel Rather this appears to be a classic example of trial
strategy gone awry ndash not a situation in which failure to reverse contravenes the
interests of justice Indeed in this case the interests of justice weigh in favor of
invoking the invited-error doctrine as defendant presumably sought to benefit
from eliciting the challenged statements and thus should not now be heard to
argue their inadmissibility simply because his strategy failed See Reyes-
Alvarado 963 F2d at 1187 (ldquoFrom the transcript it appears that counsel thought
his pursuit of this line of questioning might benefit his client His tactics
backfired and his client was convicted A defendant cannot have it both
ways This was invited error and therefore not grounds for reversalrdquo)
Moreover the governmentrsquos trial counsel showed an abundance of caution
by specifically raising the issue and asking whether it should be discussed at
-23shy
sidebar10 This too weighs against a finding that the interests of justice require
reversal See Neal 78 F3d at 904 (ldquoAt one point the prosecutor even tried to
warn [defendantrsquos] attorney about pursuing a line of questioning relating to the
defendantrsquos prior conduct but [defendantrsquos] attorney persisted Under these
circumstances [defendant] cannot complain of error which he himself has
invitedrdquo) (citation and internal quotations omitted)
Simply put this case precisely illustrates both the purpose behind the
10 The following exchange occurred when defense counsel elicited statements from the witness regarding what Ricky Cotton told the government
[Defense Counsel] Just tell us what Ricky Cotton said and let me -shytell us what obviously is hearsay Irsquoll sit down Tell us what Ricky Cotton -shy
[Government Counsel] Your Honor should we have a sidebar on this
[The Court] What for
[Government Counsel] Irsquom not sure to figure out where we are
[Defense Counsel] This is where we are what Ricky Cotton said
[The Court] Are you objecting
[Government Counsel] If he doesnrsquot have any objection to the witness saying what Ricky Cotton said thatrsquos fine
[Defense Counsel] Letrsquos go Tell us what Ricky Cotton said
(418 Tr 173-174 Apx __)
-24shy
invited-error doctrine and the need to enforce it strictly Defendantrsquos appeal does
not challenge any action by the government Nor does he take issue with the
district courtrsquos instructions to the jury the sufficiency of the evidence to support
his conviction or the reasonableness of his sentence He also does not contend the
district court improperly ruled on any objection made by his trial counsel Rather
his arguments on appeal arise solely from the actions of his own retained trial
counsel Such claims must be rejected on their face as a contrary rule would
create perverse incentives for defendants to invite some small amount of error in
every trial so as to create grounds for appeal Accordingly this Court should
apply the invited-error doctrine and affirm the judgment below without reaching
the question whether plain error exists
II
THE DISTRICT COURT DID NOT COMMIT PLAIN ERROR IN FAILING TO SUA SPONTE PREVENT DEFENDANTrsquoS TRIAL COUNSEL FROM
ELICITING THE CHALLENGED TESTIMONY
As noted above in Section IA if this Court determines that the invited-
error doctrine does not apply it should review admission of the challenged
statements for plain error United States v Namey 364 F3d 843 846 (6th Cir
2004)
-25shy
A The Plain-Error Doctrine
ldquoThe plain error doctrine mandates reversal only in exceptional
circumstances and only where the error is so plain that the trial judge and
prosecutor were derelict in countenancing itrdquo United States v Gardiner 463 F3d
445 459 (6th Cir 2006) (quoting United States v Carroll 26 F3d 1380 1383
(6th Cir 1994)) It ldquois to be used sparingly only in exceptional circumstances
and solely to avoid a miscarriage of justicerdquo United States v Phillips 516 F3d
479 487 (6th Cir 2008) (quoting United States v Cox 957 F2d 264 267 (6th
Cir 1992))
ldquoTo show plain error a defendant must establish the following (1) error
(2) that is plain and (3) that affects substantial rights If these three conditions are
met an appellate court may then exercise its discretion to notice a forfeited error
but only if (4) the error seriously affects the fairness integrity or public reputation
of judicial proceedingsrdquo United States v Arnold 486 F3d 177 194 (6th Cir
2007) cert denied 128 S Ct 871 (2008) (citation and internal quotations
omitted) ldquoThe phrase lsquoaffects substantial rightsrsquo lsquomeans prejudicial It must have
affected the outcome of the district court proceedingsrsquordquo United States v
(ldquo[I]ssues adverted to in a perfunctory manner unaccompanied by some effort at
developed argumentation are deemed waivedrdquo) (quoting McPherson v Kelsey
125 F3d 989 995-996 (6th Cir 1997))
-27shy
C The Third And Fourth Prongs Of The Plain-Error Doctrine Are Not Satisfied In This Case Because Other Evidence Supporting Defendantrsquos Conviction Is Overwhelming
Even if the issue were fully briefed a finding of plain error would be
improper because defendant cannot satisfy the third or fourth prongs of the
inquiry The third prong of the plain-error inquiry ndash ie the requirement that the
error ldquoaffects substantial rightsrdquo Arnold 486 F3d at 194 by ldquoaffect[ing] the
outcome of the district court proceedingsrdquo Mooneyham 473 F3d at 288 ndash is not
satisfied where the evidence against the defendant is overwhelming See
Mooneyham 473 F3d at 288 United States v Hines 398 F3d 713 718-719 (6th
Cir) cert denied 545 US 1134 (2005)
Likewise the fourth prong of the inquiry ndash ie the requirement that the
error be said to have ldquoseriously affect[ed] the fairness integrity or public
reputation of judicial proceedingsrdquo Arnold 486 F3d at 194 ndash also is not met when
other evidence is ldquooverwhelmingrdquo and ldquoessentially uncontrovertedrdquo See United
States v Cotton 535 US 625 632-633 (2002) Johnson v United States 520
US 461 469-470 (1997) Hines 398 F3d at 718-719 Indeed as both the
Supreme Court and this Court have recognized with regard to the fourth prong of
the inquiry in some cases ldquoit would be the reversal of a conviction which
would have th[e] effectrdquo of ldquoseriously affect[ing] the fairness integrity or public
-28shy
reputation of judicial proceedingsrdquo Johnson 520 US at 470 (internal quotations
omitted) (emphasis added) see also United States v McGhee 119 F3d 422 424shy
425 (6th Cir 1997) This is so because ldquo[r]eversal for error regardless of its effect
on the judgment encourages litigants to abuse the judicial process and bestirs the
public to ridicule itrdquo Johnson 520 US at 470 (citation and internal quotations
omitted) see also McGhee 119 F3d at 424-425
In view of the foregoing courts often cite the presence of overwhelming
evidence as the basis for concluding that a defendant has failed to meet both the
third and fourth prongs of the plain-error inquiry See Hines 398 F3d at 718-719
United States v Dedhia 134 F3d 802 809 (6th Cir) cert denied 523 US 1145
(1998) see also United States v Birk 453 F3d 893 898 (7th Cir 2006) United
States v Taylor 284 F3d 95 102 (1st Cir) cert denied 536 US 933 (2002)
This Court should follow that approach here as there is overwhelming evidence ndash
separate and apart from the challenged statements ndash to support defendantrsquos
conviction Specifically as explained more fully below testimony at trial
established that defendant (1) spoke openly to others during the weeks leading up
to the fire regarding his desire to force the Dosters from the neighborhood (2) was
the one who set the fire (3) confided to a friend afterward that he both set the fire
and performed the lawn job with the intent to drive the Dosters away because of
-29shy
their race and (4) told conflicting stories to the FBI during the course of its
investigation one of which included an admission that he was at least indirectly
involved in setting the fire
1 Defendantrsquos Statements Prior To The Fire
Two witnesses offered detailed accounts of conversations they had with
defendant prior to the date of the fire During these conversations defendant
expressed his desire to drive the Dosters from their home
Guy Wurts testified that in mid-July 2002 Defendant said something to the
effect of ldquoI got to get rid of these niggers Irsquoll find something to do I donrsquot know
what I got to get these niggers out [of] the neighborhoodrdquo (Wurts 417 Tr 208shy
209 Apx __) Wurts testified that defendant looked in the Dostersrsquo direction
when he made these comments and said the word ldquoniggerrdquo loud enough for the
Dosters ndash who were working in their yard at the time ndash to hear it (Wurts 417 Tr
202-203 209-210 Apx __) Wurts further testified that defendant ldquoseemed
seriousrdquo when he made these statements (Wurts 417 Tr 259 Apx __)
Debbie Daniely recounted similar statements by defendant Specifically
defendant told Daniely more than once that he was very upset about the Dosters
moving into the neighborhood saying something to the effect of ldquoniggers are
moving inrdquo and ldquo[w]e have to do something about itrdquo (Daniely 418 Tr 22-25
-30shy
Apx __) Defendant later admitted to the FBI that he made such a statement to
ldquo[t]his Court has lsquoroutinely concluded that such claims are best brought by a
defendant in a post-conviction proceeding under 28 USC sect 2255 so that the
-37shy
parties can develop an adequate record on the issuersquordquo Martinez 430 F3d at 338
(quoting United States v Brown 332 F3d 363 368 (6th Cir 2003)) ldquoThere is
however lsquoa narrow exceptionrsquo to this rule lsquowhen the existing record is adequate to
assess properly the merits of the claimrsquordquo United States v Hynes 467 F3d 951
969 (6th Cir 2006) (quoting United States v Franklin 415 F3d 537 555-556
(6th Cir 2005)) See also United States v Winkle 477 F3d 407 421 (6th Cir
2007) (ldquoThis Court typically will not review a claim of ineffective assistance on
direct appeal except in rare cases where the error is apparent from the existing
recordrdquo) (quoting United States v Lopez-Medina 461 F3d 724 737 (6th Cir
2006))
No basis exists for departing from the general rule against addressing
ineffective-assistance claims on direct appeal As this Court has noted ldquo[t]he trial
process contains a myriad of complex decisions that for strategic reasons are
sound when made but may appear unsound with the benefit of hindsightrdquo United
States v Davis 306 F3d 398 422 (6th Cir 2002) cert denied 537 US 1208
(2003) (quoting United States v Fortson 194 F3d 730 736 (6th Cir 1999))
Moreover ldquo[j]udicial scrutiny of counselrsquos performance must be highly
deferentialrdquo and ldquoa court must indulge a strong presumption that counselrsquos
conduct falls within the wide range of reasonable professional assistancerdquo
-38shy
Strickland v Washington 466 US 668 689 (1984) Thus to establish ineffective
assistance ldquothe defendant must overcome the presumption that under the
circumstances the challenged action lsquomight be considered sound trial strategyrsquordquo
Ibid (quoting Michel v Louisiana 350 US 91 101 (1955))
Here the decision by defendantrsquos retained trial counsel to elicit the
challenged statements during cross-examination of a government witness
undeniably constitutes an element of trial strategy that cannot be analyzed at this
stage of the proceedings In particular because this is a direct appeal there is no
evidence in the record regarding defense counselrsquos trial strategy This Court
repeatedly has refused to review ineffective-assistance claims under such
circumstances See eg Lopez-Medina 461 F3d at 737 (ldquoAbsent evidence
specifically addressing counselrsquos performance we cannot determine whether his
actions reflected a reasoned trial strategyrdquo) United States v Sullivan 431 F3d
976 986 (6th Cir 2005) (ldquoWithout an explanation from trial counsel as to why he
failed to call the alibi witness we have no basis to determine whether this decision
was the result of inadequate representation or reasonable trial strategyrdquo) United
States v Allison 59 F3d 43 47 (6th Cir) cert denied 516 US 1002 (1995)
(ldquo[T]he sparse record before this court does not reveal whether the attorneyrsquos
actions could be considered sound trial strategyrdquo) United States v Snow 48 F3d
-39shy
198 199 (6th Cir 1995) (ldquoThe record before this court simply is insufficient to
show whether the alleged wrongful acts could be considered sound trial
strategyrdquo) Thus defendantrsquos ineffective-assistance claim must be examined ndash if
at all ndash in a separate collateral proceeding brought pursuant to Section 2255
C The Evidence That Is Available In The Record Does Not Support A Finding Of Ineffective Assistance Of Counsel
As stated above the governmentrsquos position is that the current record is not
sufficient to permit this Court to address defendantrsquos ineffective-assistance claim
in this direct appeal However if the Court disagrees ndash or desires in the interest of
judicial economy to address defendantrsquos claim on direct appeal ndash it should reject
the claim because defendant fails to satisfy the second prong of the ineffective-
assistance inquiry11
11 The government does not concede that the first prong of the Strickland inquiry is satisfied in this case Rather as noted above it is not possible to resolve the issue at this point because the record does not indicate precisely what defendantrsquos trial counsel was thinking what his strategy was or why he elected to pursue certain lines of questioning In the event that defendant elects to bring a collateral challenge pursuant to Section 2255 the government reserves the right to address the first prong of Strickland inquiry and to further develop its argument as to the second prong The governmentrsquos decision not to do so in this brief is based on the incomplete nature of the record with regard to the Strickland inquiry and should not be construed as a waiver or forfeiture of any arguments relating to defendantrsquos ineffective-assistance claim
-40shy
1 Standard For Establishing Ineffective Assistance Of Counsel
To prove ineffective assistance of counsel under Strickland a defendant
first ldquomust demonstrate that counselrsquos performance fell lsquobelow the objective
standard of reasonablenessrsquordquo Ivory v Jackson 509 F3d 284 294 (6th Cir 2007)
cert denied 128 S Ct 1897 (2008) (quoting Strickland 466 US at 688)) ldquoThe
defendant must then demonstrate that lsquothere is a reasonable probability that but
for counselrsquos unprofessional errors the result of the proceeding would have been
different A reasonable probability is a probability sufficient to undermine the
confidence in the outcomersquordquo Ibid (quoting Strickland 466 US at 694)
Significantly this Court ldquoneed not decide whether defense counsel
performed deficiently if disposing of an ineffective-assistance claim on the ground
of lack of sufficient prejudice would be easierrdquo Hynes 467 F3d at 970 See also
Ivory 509 F3d at 294 (ldquo[A] court need not determine whether counselrsquos
performance was deficient before examining the prejudice suffered by the
defendant as a result of the alleged deficiencies If it is easier to dispose of
an ineffectiveness claim on the ground of lack of sufficient prejudice which we
expect will often be so that course should be followedrdquo) (quoting Strickland 466
US at 697)
-41shy
2 Defendant Is Unable To Demonstrate Sufficient Prejudice And Therefore Cannot Satisfy The Second Prong Of The Inquiry
ldquoTo show prejudice [defendant] must demonstrate that lsquothere is a
reasonable probability that but for counselrsquos unprofessional errors the result of
the proceeding would have been differentrsquordquo Harrison v Motley 478 F3d 750
756 (6th Cir) cert denied 128 S Ct 444 (2007) (quoting Strickland 466 US at
694)) As set forth above in Section IIC the evidence of defendantrsquos guilt is
overwhelming and the result therefore would not have been different absent the
challenged statements This Court repeatedly has determined that the second
prong of the Strickland inquiry is not met under such circumstances See eg
Harrison 478 F3d at 757 (defendant ldquofailed to show that his attorneysrsquo alleged
conflict of interest resulted in prejudicerdquo where ldquothe evidence admitted against
[defendant] at trial was lsquooverwhelmingrsquordquo) Hicks v Collins 384 F3d 204 215
(6th Cir 2004) cert denied 545 US 1155 (2005) (holding that defendant cannot
satisfy the second prong of Strickland where ldquothere was overwhelming evidence of
[defendantrsquos] guiltrdquo) Campbell v United States 364 F3d 727 736 (6th Cir
2004) cert denied 543 US 1119 (2005) (ldquoGiven the overwhelming evidence
establishing [defendantrsquos] guilt we believe that he would not have been able to
show that but for his attorneyrsquos failure to object to the prosecutorrsquos alleged
-42shy
misconduct the result would have been differentrdquo)
Accordingly even if this Court determines that the record is sufficient for it
to address defendantrsquos ineffective-assistance claim on direct appeal it should
reject this claim based on his failure to satisfy the second prong of the Strickland
inquiry
CONCLUSION
For the foregoing reasons this Court should affirm the judgment below
Respectfully submitted
GRACE CHUNG BECKER Acting Assistant Attorney General Civil Rights Division
DIANA K FLYNN DIRK C PHILLIPS Attorneys US Department of Justice Civil Rights Divisions Appellate Section Ben Franklin Station PO Box 14403 Washington DC 20044-4403 (202) 305-4876
CERTIFICATE OF COMPLIANCE
Pursuant to Federal Rule of Appellate Procedure 32(a)(7)(B) I hereby
certify that this brief is proportionally spaced 14-point Times New Roman font
Per WordPerfect 12 software the brief contains 9022 words excluding those
parts exempted by Federal Rule of Appellate Procedure 32(a)(7)(B)(iii)
DIRK C PHILLIPS Attorney
DATED June 18 2008
CERTIFICATE OF SERVICE
I hereby certify that on June 18 2008 a copy of the foregoing PROOF
BRIEF FOR THE UNITED STATES AS PLAINTIFF-APPELLEE was served by
first class mail postage prepaid on counsel of record at the following address
Joan E Morgan 2057 Orchard Lake Road Sylvan Lake MI 48320
DIRK C PHILLIPS Attorney
APPELLEErsquoS DESIGNATION OF APPENDIX CONTENTS
APPELLEErsquoS DESIGNATION OF APPENDIX CONTENTS
Appellee United States of America designates the following items to be
2 Defendantrsquos Reaction To The Dostersrsquo Purchase Of The 4 Ziegler Property
3 The Fire 6
4
5
01 Subsequent Intimidatory Actions Against The Dosters
Defendantrsquos Admissions Of Motive And Responsibility 12
6 31 Defendantrsquos Statements To The Government
SUMMARY OF ARGUMENT 51
ARGUMENT 71
ANY ERROR WITH REGARD TO THE CHALLENGED STATEMENTS CONSTITUTES ldquoINVITED ERRORrdquo
81AND THUS SHOULD NOT BE REVIEWED BY THIS COURT
A
B
81 Standard Of Review
91 The Invited-Error Doctrine
II
TABLE OF CONTENTS (continued) PAGE
C Any Error By The District Court In Permitting The Challenged Statements Was Invited Error And Therefore Should Not Be
02 Reviewed By This Court
THE DISTRICT COURT DID NOT COMMIT PLAIN ERROR IN FAILING TO SUA SPONTE PREVENT DEFENDANTrsquoS TRIAL COUNSEL FROM ELICITING THE CHALLENGED TESTIMONY 42
A The Plain-Error Doctrine 25
B
C
62 Defendant Fails To Argue Plain Error On Appeal
The Third And Fourth Prongs Of The Plain-Error Doctrine Are Not Satisfied In This Case Because Other Evidence Supporting
72 Defendantrsquos Conviction Is Overwhelming
1
2
92 Defendantrsquos Statements Prior To The Fire
Eyewitness and Expert Testimony Regarding 03 The Fire
23 Defendantrsquos Confession3
4 Defendantrsquos Statements To The FBI 33
5 The Challenged Statements Had No Impact On The Proceeding Below 34
D Defendant Fails To Demonstrate Error In The First Instance 34
III THE RECORD DOES NOT SUPPORT DEFENDANTrsquoS 63 INEFFECTIVE-ASSISTANCE-OF-COUNSEL CLAIM
A 63 Standard Of Review
- ii shy
TABLE OF CONTENTS (continued) PAGE
B The Record In This Direct Appeal Is Insufficient To Permit 63 Review Of Defendantrsquos Claim
C The Evidence That Is Available In The Record Does Not Support A Finding Of Ineffective Assistance Of Counsel 39
1 Standard For Establishing Ineffective Assistance Of 04 Counsel
2 Defendant Is Unable To Demonstrate Sufficient Prejudice And Therefore Cannot Satisfy The Second Prong Of The Inquiry 14
CONCLUSION 24
CERTIFICATE OF COMPLIANCE
CERTIFICATE OF SERVICE
APPELLEErsquoS DESIGNATION OF APPENDIX CONTENTS
- iii shy
TABLE OF AUTHORITIES
CASES PAGE
Campbell v United States 364 F3d 727 (6th Cir 2004) 14 cert denied 543 US 1119 (2005)
Harrison v Motley 478 F3d 750 (6th Cir) 14 cert denied 128 S Ct 444 (2007)
Hicks v Collins 384 F3d 204 (6th Cir 2004) 14 cert denied 545 US 1155 (2005)
Ivory v Jackson 509 F3d 284 (6th Cir 2007) 04 cert denied 128 S Ct 1897 (2008)
Johnson v United States 520 US 461 (1997) 27-28
83 350 US 91 (1955) Michel v Louisiana
Strickland v Washington 466 US 668 (1984) passim
United States v Abboud 438 F3d 554 (6th Cir) cert denied 127 S Ct 446 (2006) 26 34-35
12 38 Fed Appx 200 (6th Cir 2002) United States v Ali
United States v Allison 59 F3d 43 (6th Cir) 83 cert denied 516 US 1002 (1995)
United States v Arnold 486 F3d 177 (6th Cir 2007) cert denied 128 S Ct 871 (2008) passim
United States v Baker 432 F3d 1189 (11th Cir 2005) cert denied 547 US 1085 (2006) 20-21
United States v Barrow 118 F3d 482 (6th Cir 1997) 20-21
- iv shy
CASES (continued) PAGE
82 453 F3d 893 (7th Cir 2006) United States v Birk
73 332 F3d 363 (6th Cir 2003) United States v Brown
52 26 F3d 1380 (6th Cir 1994) United States v Carroll
72 535 US 625 (2002) United States v Cotton
52 957 F2d 264 (6th Cir 1992) United States v Cox
United States v Davis 306 F3d 398 (6th Cir 2002) 73 cert denied 537 US 1208 (2003)
United States v Dedhia 134 F3d 802 (6th Cir) 82 cert denied 523 US 1145 (1998)
73 194 F3d 730 (6th Cir 1999) United States v Fortson
73 415 F3d 537 (6th Cir 2005) United States v Franklin
02 980 F2d 1110 (7th Cir 1992) United States v Fulford
52445 (6th Cir 2006) 463 F3d United States v Gardiner
United States v Graham 484 F3d 413 (6th Cir 2007) 63 cert denied 128 S Ct 1703 (2008)
United States v Hadley 431 F3d 484 (6th Cir 2005) 81 cert denied 127 S Ct 47 (2006)
United States v Hines 398 F3d 713 (6th Cir) cert denied 545 US 1134 (2005) 27-28
United States v Hynes 467 F3d 951 (6th Cir 2006) 37 40
- v shy
CASES (continued) PAGE
United States v Jackson 124 F3d 607 (4th Cir 1997) 91 cert denied 522 US 1066 (1998)
United States v Layne 192 F3d 556 (6th Cir 1999) cert denied 529 US 1029 (2000) 26 35
United States v Lopez-Medina 461 F3d 724 (6th Cir 2006) 37-38
United States v Martinez 430 F3d 317 (6th Cir 2005) cert denied 547 US 1034 (2006) 36-37
United States v McGhee 119 F3d 422 (6th Cir 1997)
United States v Mooneyham 473 F3d 280 (6th Cir)
82
cert denied 128 S Ct 531 (2007) 25 27 34
United States v Namey 364 F3d 843 (6th Cir) cert denied 543 US 875 (2004) 19 24
United States v Neal 78 F3d 901 (4th Cir 1996) 21 23
52 507 US 725 (1993) United States v Olano
12 858 F2d 688 (11th Cir 1988) United States v Parikh
52 516 F3d 479 (6th Cir 2008) United States v Phillips
United States v Reyes-Alvarado 963 F2d 1184 (9th Cir) cert denied 506 US 890 (1992) 21-22
22 199 F3d 821 (6th Cir 1999) SamourvUnited States
83 48 F3d 198 (6th Cir 1995) United States v Snow
83 431 F3d 976 (6th Cir 2005) United States v Sullivan
- vi shy
CASES (continued) PAGE
02 111 F3d 482 (6th Cir 1997) United States v Tandon
United States v Taylor 284 F3d 95 (1st Cir) cert denied 536 US 933 (2002) 82
63 382 F3d 598 (6th Cir 2004) United States v Wagner
United States v Winkle 477 F3d 407 (6th Cir 2007) 73
63 919 F2d 34 (6th Cir 1990) United States v Wunder
STATUTES
18 USC 2 2
2
2
2
18 USC 241
18 USC 371
18 USC 844(h)(1)
18 US
2 42 US C 3631(a)
1 3742 C
- vii shy
IN THE UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT
No 07-2074
UNITED STATES OF AMERICA
Plaintiff-Appellee
v
WAYLAND MULLINS
Defendant-Appellant
ON APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF MICHIGAN
PROOF BRIEF FOR THE UNITED STATES AS PLAINTIFF-APPELLEE
STATEMENT OF JURISDICTION
The government concurs in defendantrsquos jurisdictional statement except with
respect to defendantrsquos reference to 18 USC 3742 Section 3742 addresses
appellate review of sentences imposed on criminal defendants Because defendant
has not challenged his sentence Section 3742 is not applicable here
review by this Court when he elicited allegedly inadmissible testimony during
cross-examination of a government witness
2 Whether in the absence of invited error the district court committed
plain error by not acting sua sponte to prevent defendantrsquos trial counsel from
eliciting the challenged testimony
3 Whether the record is sufficient to permit this Court to address
defendantrsquos claim of ineffective assistance of counsel and if so whether the claim
has merit
STATEMENT OF THE CASE
On January 5 2006 a federal grand jury returned an indictment charging
defendant Wayland Mullins and a co-conspirator Michael Richardson with
conspiracy against rights in violation of 18 USC 241 (Count I) interference with
housing rights in violation of 42 USC 3631(a) and 18 USC 2 (Count II) use of
fire in the commission of a felony in violation of 18 USC 2 and 18 USC
844(h)(1) (Count III) and conspiracy to obstruct justice in violation of 18 USC
371 (Count IV) (R 1 at 1-8 Apx ___)1 Richardson pled guilty to all four
1 Citations to ldquoR rdquo refer to documents in the district court record Citations to ldquoR __rdquo refer to notations in the district court record for which there is no docket number Citations to ldquo Tr rdquo refer by date and page number to the trial transcript Citations to ldquoBr rdquo refer to Defendant-Appellantrsquos Proof
(continued)
-3shy
counts on September 21 2006 (R 92106 plea hearing) Defendant went to
trial on these charges in November 2006 but the jury was unable to reach a
verdict The district court declared a mistrial on November 17 2006 (R
111706 declaration of mistrial)
On December 14 2006 a federal grand jury returned a superseding
indictment charging defendant and another co-conspirator Ricky Cotton with the
same four counts described above Cotton pled guilty to Count I on April 12
2007 (R 41207 plea hearing) Defendant again proceeded to trial and on
April 20 2007 was convicted on all four counts (R 70 Apx __)
On August 28 2007 the district court sentenced defendant to 207 monthsrsquo
imprisonment and ordered him to pay $12400 in restitution (R 78 at 3-6 Apx
___) This appeal followed
STATEMENT OF THE FACTS
From the evidence presented at trial the jury reasonably could have found
the following facts which are set forth in the light most favorable to the
government
1(continued)
Brief On Appeal
-4shy
1 General Background
In 2002 Reginald Doster and his family purchased a home located at 5948
Ziegler Street in Taylor Michigan They made a down payment in February with
the understanding that the transaction would not close until July (Doster 417 Tr
125 138 Apx __) Between February 2002 and July 2002 the Dosters worked to
refurbish the property (Doster 417 Tr 125-126 Apx __) They finished this
process on or about July 28 2002 moved in during the latter part of October
2002 and lived there until approximately August 2005 (Doster 417 Tr 123
131-133 149-150 154 Apx __) Beginning before they moved in and continuing
throughout the time they lived on Ziegler Street the Dosters who are African-
American were the subject of racial slurs and racially-motivated actions by some
of their neighbors
2 Defendantrsquos Reaction To The Dostersrsquo Purchase Of The Ziegler Property
The Doster home was located across the street from the home in which
defendant grew up and in which his mother and other relatives still live (Doster
As such the Dostersrsquo purchase of and efforts to refurbish the house across
the street from the Mullins home did not go unnoticed by defendant or certain
other members of the neighborhood Indeed it was a topic of conversation among
those who were not happy about an African-American family moving into the
neighborhood (Daniely 418 Tr 17-18 Apx __)
During the period in which the Dosters were refurbishing the property
defendant made comments to friends regarding his desire to drive the Dosters from
the neighborhood One such incident occurred during the middle part of July
2002 (Wurts 417 Tr 208-209 Apx __) Defendant and a friend Guy Wurts
were standing in the back of Wurtsrsquo pickup truck which was parked in front of the
Mullins home (Wurts 417 Tr 202 Apx __) The Dosters were out working in
their yard at the time (Wurts 417 Tr 202-203 209 Apx __) Defendant said
something to the effect of ldquoI got to get rid of these niggers Irsquoll find something to
do I donrsquot know what I got to get these niggers out [of] the neighborhoodrdquo
(Wurts 417 Tr 209 Apx __)2 Defendant was looking in the Dostersrsquo direction
2 Similar descriptions of defendantrsquos statements appear elsewhere in Wurtsrsquo testimony (Wurts 417 Tr 201-202 209 260 Apx __)
-6shy
when he made these comments and said the word ldquoniggerrdquo loud enough for the
Dosters to hear it (Wurts 417 Tr 209-210 Apx __) Wurts testified that
defendant was a racist and that defendant ldquoseemed seriousrdquo when he made these
statements (Wurts 417 Tr 239-240 259-260 Apx __)
Debbie Daniely a neighbor and friend of the Mullins family (Daniely 418
Tr 6-8 Apx __) recounted similar statements by defendant Defendant told
Daniely more than once that he was very upset about the Dosters moving into the
neighborhood (Daniely 418 Tr 22 Apx __) She testified that defendant said
something to the effect of ldquoniggers are moving inrdquo and ldquo[w]e have to do something
about itrdquo (Daniely 418 Tr 23 Apx __)3 She believed he was serious when he
said such things (Daniely 418 Tr 25 Apx __)
3 The Fire
During the afternoon of Sunday July 28 2002 defendant along with Lee
Vanderlinden Don Flowers Chuck Proctor Michael Richardson and Ricky
Cotton4 were working in the yard of a neighbor Ann Hixon (Richardson 418
3 Defendant later admitted to the FBI that he made such a statement to Daniely (Rees 418 Tr 203 Apx __)
4 Lee Vanderlinden was the boyfriend of defendantrsquos mother and has lived in the Mullins home since at least 1996 or 1997 (Wurts 417 Tr 197-198 Apx __) Don Flowers was a friend of the Mullins family who often would socialize
(continued)
-7shy
Tr 56-58 Apx __)5 A group that included defendant Richardson Vanderlinden
Flowers and Cotton began making comments about ldquothe niggers next doorrdquo
(Richardson 418 Tr 58-59 Apx __) Richardson suggested burning a cross in
order to drive the Dosters away (Richardson 418 Tr 61 Apx __) Defendant
however went further suggesting they ldquo[t]orch the houserdquo and told the others to
come back later that night (Richardson 418 Tr 62-63 Apx __) Richardson
Vanderlinden Cotton and Flowers returned that evening and met defendant at the
Mullins home across the street from the Dosters (Richardson 418 Tr 63 Apx
__)6 They discussed ldquo[t]orchingrdquo the Doster home and all were in favor of doing
4(continued)
with Lee Vanderlinden at the Mullins home (Church 419 Tr 58-59 Apx __) Chuck Proctor worked with Lee Vanderlinden and often would hang around the Mullins home (Wurts 417 Tr 199-200 Apx __ Church 419 Tr 57-58 Apx __) Michael Richardson was a good friend of defendant who spent a lot of time at the Mullins home (Wurts 417 Tr 201 Apx __) Ricky Cotton lived nearby and also was a regular at the Mullins home (Wurts 417 Tr 200-201 Apx __) As noted above Richardson and Cotton both pled guilty in this case (R 92106 and 41207 plea hearings)
5 Ann Hixon was called by the defense and testified that this gathering could not have taken place on Sunday July 28 She testified that it occurred sometime during the Spring (she could not recall which year) and that it could not have been a Sunday because she always works on Sundays (Hixon 419 Tr 37shy38 Apx __)
Defendantrsquos aunt Casie Church lives in the Mullins home and was called to testify by defendant She stated that she was sitting on the front porch of the house during the late evening and early morning hours of July 28 and 29
(continued)
6
-8shy
so (Richardson 418 Tr 63 Apx __) Each of them encouraged defendant by
ldquo[e]gging him onrdquo and by ldquo[d]aringrdquo and ldquo[i]ncitingrdquo him to do so (Richardson
418 Tr 64 Apx __)
Defendant took a can of gasoline from the garage of the Mullins home and
went to the back of the Doster home (Richardson 418 Tr 64-65 Apx __)
Richardson Cotton Flowers and Vanderlinden served as lookouts with
Richardson following defendant to the Doster home and the other three remaining
across the street (Richardson 418 Tr 64-65 Apx __) Upon reaching the back
of the Doster home defendant either pried open or broke a window and poured
gasoline inside the house and on the windowsill (Richardson 418 Tr 65 111shy
114 Apx __)7 He then started the fire by holding a lighter up to the windowsill
and blowing until it ignited (Richardson 418 Tr 113 Apx __) Once the fire
was lit defendant and Richardson ran back across the street to join the others
where they celebrated and congratulated defendant (Richardson 418 Tr 65-66
6(continued)
(Church 419 Tr 45 Apx __) She testified that there was no one near the garage of the Mullins home during this time (Church 419 Tr 45 Apx __) But she stated that she did see someone named Mike sometime between 10 pm and 3 am (Church 419 Tr 45-46 Apx __)
7 Richardsonrsquos testimony indicates that it may have been a mixture of oil and gasoline (Richardson 418 Tr 65 Apx __)
-9shy
114-115 Apx __) Richardson testified that defendant set the fire because of the
Dostersrsquo race (Richardson 418 Tr 82 Apx __)
The Dosters had not yet moved into the Ziegler property and therefore were
not home at the time of the fire They had spent Sunday July 28 painting the
Ziegler property and left sometime between 7 pm and 8 pm (Doster 417 Tr
129 167-168 Apx __) Reginald Doster discovered there had been a fire when
he along with his wife and ten-year-old daughter returned to the home between 7
am and 9 am the next morning by which time the fire had burned out (Doster
doctrine recognizes that a court cannot be asked by counsel to take a step in a case
and later be convicted of error because it has complied with such requestrdquo)
(citation and internal quotations omitted) ldquoThis doctrine is a branch of the
doctrine of waiver by which courts prevent a party from inducing an erroneous
ruling and later seeking to profit from the legal consequences by having the
verdict vacatedrdquo Barrow 118 F3d at 490-491
Some courts have held that the existence of invited error forecloses any
-20shy
review ndash even for plain error See eg United States v Baker 432 F3d 1189
1216 (11th Cir 2005) cert denied 547 US 1085 (2006) (ldquoIt is a cardinal rule of
appellate review that a party may not challenge as error a ruling or other trial
proceeding invited by that party Where invited error exists it precludes a
court from invoking the plain error rule and reversingrdquo) United States v Fulford
980 F2d 1110 1116 (7th Cir 1992) (ldquoIt is well-settled that where error is invited
not even plain error permits reversalrdquo) This Court however has recognized an
exception holding that ldquo[i]nvited error does not foreclose relief when the
interests of justice demand otherwiserdquo Barrow 118 F3d at 491 In this Circuit
the question ldquo[w]hether the circumstances of a particular case justify deviation
from the normal rule of waiver under this doctrine is left largely to the discretion
of the appellate courtrdquo Ibid Nevertheless ldquo[u]nder the invited error doctrine an
error introduced by the complaining party will cause reversal only in the most
exceptional situationrdquo United States v Tandon 111 F3d 482 489 (6th Cir
1997) (citation and internal quotations omitted)
C Any Error By The District Court In Permitting The Challenged Statements Was Invited Error And Therefore Should Not Be Reviewed By This Court
Here all of the challenged statements were elicited by defendantrsquos retained
trial counsel Br 15-24 This plainly constitutes invited error See United States
-21shy
v Parikh 858 F2d 688 695 (11th Cir 1988) (ldquoWe hold that the admission of out
of court statements by a government witness when responding to an inquiry by
defense counsel creates lsquoinvited errorrsquordquo) See also Baker 432 F3d at 1215-1216
(defendant ldquocannot now complain about the district courtrsquos errorrdquo where his
counsel ldquoinvited the errorrdquo by eliciting hearsay during cross-examination) United
States v Neal 78 F3d 901 904 (4th Cir 1996) (defendant ldquoinvited the errorrdquo and
it therefore ldquoprovides no basis for reversalrdquo where ldquo[a]t trial [defendant] did not
object to any of the statements he now challengesrdquo and ldquomost were elicited by his
own attorney from a government witness during cross-examinationrdquo) United
States v Reyes-Alvarado 963 F2d 1184 1187 (9th Cir 1992) cert denied 506
US 890 (1992) (finding invited error and refusing to reverse where ldquoappellantrsquos
counsel solicited the testimony which he now claims should have been excludedrdquo
and ldquodid not seek to strike this testimony at the time it was givenrdquo)9
As a threshold matter it bears noting that defendant fails to acknowledge
the existence of invited error and makes no argument as to why ldquothe interests of
justicerdquo Barrow 118 F3d at 491 require this Court to refrain from applying the
invited-error doctrine Accordingly defendant has waived any right to invoke the
9 This Court has reached a similar conclusion albeit in an unpublished decision See United States v Ali 38 Fed Appx 220 224 (6th Cir Mar 26 2002) (unpublished)
-22shy
interests-of-justice exception recognized by this Court See United States v
Samour 199 F3d 821 822 n1 (6th Cir 1999) (defendant ldquowaived his right to
argue the applicability of [favorable precedent] by failing to raise the issue on
appealrdquo)
Even if not waived however the interests of justice do not require this
Court to depart from the general rule that relief is foreclosed by invited error The
challenged statements were not the result of mere oversight or an isolated error by
defendantrsquos trial counsel Rather this appears to be a classic example of trial
strategy gone awry ndash not a situation in which failure to reverse contravenes the
interests of justice Indeed in this case the interests of justice weigh in favor of
invoking the invited-error doctrine as defendant presumably sought to benefit
from eliciting the challenged statements and thus should not now be heard to
argue their inadmissibility simply because his strategy failed See Reyes-
Alvarado 963 F2d at 1187 (ldquoFrom the transcript it appears that counsel thought
his pursuit of this line of questioning might benefit his client His tactics
backfired and his client was convicted A defendant cannot have it both
ways This was invited error and therefore not grounds for reversalrdquo)
Moreover the governmentrsquos trial counsel showed an abundance of caution
by specifically raising the issue and asking whether it should be discussed at
-23shy
sidebar10 This too weighs against a finding that the interests of justice require
reversal See Neal 78 F3d at 904 (ldquoAt one point the prosecutor even tried to
warn [defendantrsquos] attorney about pursuing a line of questioning relating to the
defendantrsquos prior conduct but [defendantrsquos] attorney persisted Under these
circumstances [defendant] cannot complain of error which he himself has
invitedrdquo) (citation and internal quotations omitted)
Simply put this case precisely illustrates both the purpose behind the
10 The following exchange occurred when defense counsel elicited statements from the witness regarding what Ricky Cotton told the government
[Defense Counsel] Just tell us what Ricky Cotton said and let me -shytell us what obviously is hearsay Irsquoll sit down Tell us what Ricky Cotton -shy
[Government Counsel] Your Honor should we have a sidebar on this
[The Court] What for
[Government Counsel] Irsquom not sure to figure out where we are
[Defense Counsel] This is where we are what Ricky Cotton said
[The Court] Are you objecting
[Government Counsel] If he doesnrsquot have any objection to the witness saying what Ricky Cotton said thatrsquos fine
[Defense Counsel] Letrsquos go Tell us what Ricky Cotton said
(418 Tr 173-174 Apx __)
-24shy
invited-error doctrine and the need to enforce it strictly Defendantrsquos appeal does
not challenge any action by the government Nor does he take issue with the
district courtrsquos instructions to the jury the sufficiency of the evidence to support
his conviction or the reasonableness of his sentence He also does not contend the
district court improperly ruled on any objection made by his trial counsel Rather
his arguments on appeal arise solely from the actions of his own retained trial
counsel Such claims must be rejected on their face as a contrary rule would
create perverse incentives for defendants to invite some small amount of error in
every trial so as to create grounds for appeal Accordingly this Court should
apply the invited-error doctrine and affirm the judgment below without reaching
the question whether plain error exists
II
THE DISTRICT COURT DID NOT COMMIT PLAIN ERROR IN FAILING TO SUA SPONTE PREVENT DEFENDANTrsquoS TRIAL COUNSEL FROM
ELICITING THE CHALLENGED TESTIMONY
As noted above in Section IA if this Court determines that the invited-
error doctrine does not apply it should review admission of the challenged
statements for plain error United States v Namey 364 F3d 843 846 (6th Cir
2004)
-25shy
A The Plain-Error Doctrine
ldquoThe plain error doctrine mandates reversal only in exceptional
circumstances and only where the error is so plain that the trial judge and
prosecutor were derelict in countenancing itrdquo United States v Gardiner 463 F3d
445 459 (6th Cir 2006) (quoting United States v Carroll 26 F3d 1380 1383
(6th Cir 1994)) It ldquois to be used sparingly only in exceptional circumstances
and solely to avoid a miscarriage of justicerdquo United States v Phillips 516 F3d
479 487 (6th Cir 2008) (quoting United States v Cox 957 F2d 264 267 (6th
Cir 1992))
ldquoTo show plain error a defendant must establish the following (1) error
(2) that is plain and (3) that affects substantial rights If these three conditions are
met an appellate court may then exercise its discretion to notice a forfeited error
but only if (4) the error seriously affects the fairness integrity or public reputation
of judicial proceedingsrdquo United States v Arnold 486 F3d 177 194 (6th Cir
2007) cert denied 128 S Ct 871 (2008) (citation and internal quotations
omitted) ldquoThe phrase lsquoaffects substantial rightsrsquo lsquomeans prejudicial It must have
affected the outcome of the district court proceedingsrsquordquo United States v
(ldquo[I]ssues adverted to in a perfunctory manner unaccompanied by some effort at
developed argumentation are deemed waivedrdquo) (quoting McPherson v Kelsey
125 F3d 989 995-996 (6th Cir 1997))
-27shy
C The Third And Fourth Prongs Of The Plain-Error Doctrine Are Not Satisfied In This Case Because Other Evidence Supporting Defendantrsquos Conviction Is Overwhelming
Even if the issue were fully briefed a finding of plain error would be
improper because defendant cannot satisfy the third or fourth prongs of the
inquiry The third prong of the plain-error inquiry ndash ie the requirement that the
error ldquoaffects substantial rightsrdquo Arnold 486 F3d at 194 by ldquoaffect[ing] the
outcome of the district court proceedingsrdquo Mooneyham 473 F3d at 288 ndash is not
satisfied where the evidence against the defendant is overwhelming See
Mooneyham 473 F3d at 288 United States v Hines 398 F3d 713 718-719 (6th
Cir) cert denied 545 US 1134 (2005)
Likewise the fourth prong of the inquiry ndash ie the requirement that the
error be said to have ldquoseriously affect[ed] the fairness integrity or public
reputation of judicial proceedingsrdquo Arnold 486 F3d at 194 ndash also is not met when
other evidence is ldquooverwhelmingrdquo and ldquoessentially uncontrovertedrdquo See United
States v Cotton 535 US 625 632-633 (2002) Johnson v United States 520
US 461 469-470 (1997) Hines 398 F3d at 718-719 Indeed as both the
Supreme Court and this Court have recognized with regard to the fourth prong of
the inquiry in some cases ldquoit would be the reversal of a conviction which
would have th[e] effectrdquo of ldquoseriously affect[ing] the fairness integrity or public
-28shy
reputation of judicial proceedingsrdquo Johnson 520 US at 470 (internal quotations
omitted) (emphasis added) see also United States v McGhee 119 F3d 422 424shy
425 (6th Cir 1997) This is so because ldquo[r]eversal for error regardless of its effect
on the judgment encourages litigants to abuse the judicial process and bestirs the
public to ridicule itrdquo Johnson 520 US at 470 (citation and internal quotations
omitted) see also McGhee 119 F3d at 424-425
In view of the foregoing courts often cite the presence of overwhelming
evidence as the basis for concluding that a defendant has failed to meet both the
third and fourth prongs of the plain-error inquiry See Hines 398 F3d at 718-719
United States v Dedhia 134 F3d 802 809 (6th Cir) cert denied 523 US 1145
(1998) see also United States v Birk 453 F3d 893 898 (7th Cir 2006) United
States v Taylor 284 F3d 95 102 (1st Cir) cert denied 536 US 933 (2002)
This Court should follow that approach here as there is overwhelming evidence ndash
separate and apart from the challenged statements ndash to support defendantrsquos
conviction Specifically as explained more fully below testimony at trial
established that defendant (1) spoke openly to others during the weeks leading up
to the fire regarding his desire to force the Dosters from the neighborhood (2) was
the one who set the fire (3) confided to a friend afterward that he both set the fire
and performed the lawn job with the intent to drive the Dosters away because of
-29shy
their race and (4) told conflicting stories to the FBI during the course of its
investigation one of which included an admission that he was at least indirectly
involved in setting the fire
1 Defendantrsquos Statements Prior To The Fire
Two witnesses offered detailed accounts of conversations they had with
defendant prior to the date of the fire During these conversations defendant
expressed his desire to drive the Dosters from their home
Guy Wurts testified that in mid-July 2002 Defendant said something to the
effect of ldquoI got to get rid of these niggers Irsquoll find something to do I donrsquot know
what I got to get these niggers out [of] the neighborhoodrdquo (Wurts 417 Tr 208shy
209 Apx __) Wurts testified that defendant looked in the Dostersrsquo direction
when he made these comments and said the word ldquoniggerrdquo loud enough for the
Dosters ndash who were working in their yard at the time ndash to hear it (Wurts 417 Tr
202-203 209-210 Apx __) Wurts further testified that defendant ldquoseemed
seriousrdquo when he made these statements (Wurts 417 Tr 259 Apx __)
Debbie Daniely recounted similar statements by defendant Specifically
defendant told Daniely more than once that he was very upset about the Dosters
moving into the neighborhood saying something to the effect of ldquoniggers are
moving inrdquo and ldquo[w]e have to do something about itrdquo (Daniely 418 Tr 22-25
-30shy
Apx __) Defendant later admitted to the FBI that he made such a statement to
ldquo[t]his Court has lsquoroutinely concluded that such claims are best brought by a
defendant in a post-conviction proceeding under 28 USC sect 2255 so that the
-37shy
parties can develop an adequate record on the issuersquordquo Martinez 430 F3d at 338
(quoting United States v Brown 332 F3d 363 368 (6th Cir 2003)) ldquoThere is
however lsquoa narrow exceptionrsquo to this rule lsquowhen the existing record is adequate to
assess properly the merits of the claimrsquordquo United States v Hynes 467 F3d 951
969 (6th Cir 2006) (quoting United States v Franklin 415 F3d 537 555-556
(6th Cir 2005)) See also United States v Winkle 477 F3d 407 421 (6th Cir
2007) (ldquoThis Court typically will not review a claim of ineffective assistance on
direct appeal except in rare cases where the error is apparent from the existing
recordrdquo) (quoting United States v Lopez-Medina 461 F3d 724 737 (6th Cir
2006))
No basis exists for departing from the general rule against addressing
ineffective-assistance claims on direct appeal As this Court has noted ldquo[t]he trial
process contains a myriad of complex decisions that for strategic reasons are
sound when made but may appear unsound with the benefit of hindsightrdquo United
States v Davis 306 F3d 398 422 (6th Cir 2002) cert denied 537 US 1208
(2003) (quoting United States v Fortson 194 F3d 730 736 (6th Cir 1999))
Moreover ldquo[j]udicial scrutiny of counselrsquos performance must be highly
deferentialrdquo and ldquoa court must indulge a strong presumption that counselrsquos
conduct falls within the wide range of reasonable professional assistancerdquo
-38shy
Strickland v Washington 466 US 668 689 (1984) Thus to establish ineffective
assistance ldquothe defendant must overcome the presumption that under the
circumstances the challenged action lsquomight be considered sound trial strategyrsquordquo
Ibid (quoting Michel v Louisiana 350 US 91 101 (1955))
Here the decision by defendantrsquos retained trial counsel to elicit the
challenged statements during cross-examination of a government witness
undeniably constitutes an element of trial strategy that cannot be analyzed at this
stage of the proceedings In particular because this is a direct appeal there is no
evidence in the record regarding defense counselrsquos trial strategy This Court
repeatedly has refused to review ineffective-assistance claims under such
circumstances See eg Lopez-Medina 461 F3d at 737 (ldquoAbsent evidence
specifically addressing counselrsquos performance we cannot determine whether his
actions reflected a reasoned trial strategyrdquo) United States v Sullivan 431 F3d
976 986 (6th Cir 2005) (ldquoWithout an explanation from trial counsel as to why he
failed to call the alibi witness we have no basis to determine whether this decision
was the result of inadequate representation or reasonable trial strategyrdquo) United
States v Allison 59 F3d 43 47 (6th Cir) cert denied 516 US 1002 (1995)
(ldquo[T]he sparse record before this court does not reveal whether the attorneyrsquos
actions could be considered sound trial strategyrdquo) United States v Snow 48 F3d
-39shy
198 199 (6th Cir 1995) (ldquoThe record before this court simply is insufficient to
show whether the alleged wrongful acts could be considered sound trial
strategyrdquo) Thus defendantrsquos ineffective-assistance claim must be examined ndash if
at all ndash in a separate collateral proceeding brought pursuant to Section 2255
C The Evidence That Is Available In The Record Does Not Support A Finding Of Ineffective Assistance Of Counsel
As stated above the governmentrsquos position is that the current record is not
sufficient to permit this Court to address defendantrsquos ineffective-assistance claim
in this direct appeal However if the Court disagrees ndash or desires in the interest of
judicial economy to address defendantrsquos claim on direct appeal ndash it should reject
the claim because defendant fails to satisfy the second prong of the ineffective-
assistance inquiry11
11 The government does not concede that the first prong of the Strickland inquiry is satisfied in this case Rather as noted above it is not possible to resolve the issue at this point because the record does not indicate precisely what defendantrsquos trial counsel was thinking what his strategy was or why he elected to pursue certain lines of questioning In the event that defendant elects to bring a collateral challenge pursuant to Section 2255 the government reserves the right to address the first prong of Strickland inquiry and to further develop its argument as to the second prong The governmentrsquos decision not to do so in this brief is based on the incomplete nature of the record with regard to the Strickland inquiry and should not be construed as a waiver or forfeiture of any arguments relating to defendantrsquos ineffective-assistance claim
-40shy
1 Standard For Establishing Ineffective Assistance Of Counsel
To prove ineffective assistance of counsel under Strickland a defendant
first ldquomust demonstrate that counselrsquos performance fell lsquobelow the objective
standard of reasonablenessrsquordquo Ivory v Jackson 509 F3d 284 294 (6th Cir 2007)
cert denied 128 S Ct 1897 (2008) (quoting Strickland 466 US at 688)) ldquoThe
defendant must then demonstrate that lsquothere is a reasonable probability that but
for counselrsquos unprofessional errors the result of the proceeding would have been
different A reasonable probability is a probability sufficient to undermine the
confidence in the outcomersquordquo Ibid (quoting Strickland 466 US at 694)
Significantly this Court ldquoneed not decide whether defense counsel
performed deficiently if disposing of an ineffective-assistance claim on the ground
of lack of sufficient prejudice would be easierrdquo Hynes 467 F3d at 970 See also
Ivory 509 F3d at 294 (ldquo[A] court need not determine whether counselrsquos
performance was deficient before examining the prejudice suffered by the
defendant as a result of the alleged deficiencies If it is easier to dispose of
an ineffectiveness claim on the ground of lack of sufficient prejudice which we
expect will often be so that course should be followedrdquo) (quoting Strickland 466
US at 697)
-41shy
2 Defendant Is Unable To Demonstrate Sufficient Prejudice And Therefore Cannot Satisfy The Second Prong Of The Inquiry
ldquoTo show prejudice [defendant] must demonstrate that lsquothere is a
reasonable probability that but for counselrsquos unprofessional errors the result of
the proceeding would have been differentrsquordquo Harrison v Motley 478 F3d 750
756 (6th Cir) cert denied 128 S Ct 444 (2007) (quoting Strickland 466 US at
694)) As set forth above in Section IIC the evidence of defendantrsquos guilt is
overwhelming and the result therefore would not have been different absent the
challenged statements This Court repeatedly has determined that the second
prong of the Strickland inquiry is not met under such circumstances See eg
Harrison 478 F3d at 757 (defendant ldquofailed to show that his attorneysrsquo alleged
conflict of interest resulted in prejudicerdquo where ldquothe evidence admitted against
[defendant] at trial was lsquooverwhelmingrsquordquo) Hicks v Collins 384 F3d 204 215
(6th Cir 2004) cert denied 545 US 1155 (2005) (holding that defendant cannot
satisfy the second prong of Strickland where ldquothere was overwhelming evidence of
[defendantrsquos] guiltrdquo) Campbell v United States 364 F3d 727 736 (6th Cir
2004) cert denied 543 US 1119 (2005) (ldquoGiven the overwhelming evidence
establishing [defendantrsquos] guilt we believe that he would not have been able to
show that but for his attorneyrsquos failure to object to the prosecutorrsquos alleged
-42shy
misconduct the result would have been differentrdquo)
Accordingly even if this Court determines that the record is sufficient for it
to address defendantrsquos ineffective-assistance claim on direct appeal it should
reject this claim based on his failure to satisfy the second prong of the Strickland
inquiry
CONCLUSION
For the foregoing reasons this Court should affirm the judgment below
Respectfully submitted
GRACE CHUNG BECKER Acting Assistant Attorney General Civil Rights Division
DIANA K FLYNN DIRK C PHILLIPS Attorneys US Department of Justice Civil Rights Divisions Appellate Section Ben Franklin Station PO Box 14403 Washington DC 20044-4403 (202) 305-4876
CERTIFICATE OF COMPLIANCE
Pursuant to Federal Rule of Appellate Procedure 32(a)(7)(B) I hereby
certify that this brief is proportionally spaced 14-point Times New Roman font
Per WordPerfect 12 software the brief contains 9022 words excluding those
parts exempted by Federal Rule of Appellate Procedure 32(a)(7)(B)(iii)
DIRK C PHILLIPS Attorney
DATED June 18 2008
CERTIFICATE OF SERVICE
I hereby certify that on June 18 2008 a copy of the foregoing PROOF
BRIEF FOR THE UNITED STATES AS PLAINTIFF-APPELLEE was served by
first class mail postage prepaid on counsel of record at the following address
Joan E Morgan 2057 Orchard Lake Road Sylvan Lake MI 48320
DIRK C PHILLIPS Attorney
APPELLEErsquoS DESIGNATION OF APPENDIX CONTENTS
APPELLEErsquoS DESIGNATION OF APPENDIX CONTENTS
Appellee United States of America designates the following items to be
C Any Error By The District Court In Permitting The Challenged Statements Was Invited Error And Therefore Should Not Be
02 Reviewed By This Court
THE DISTRICT COURT DID NOT COMMIT PLAIN ERROR IN FAILING TO SUA SPONTE PREVENT DEFENDANTrsquoS TRIAL COUNSEL FROM ELICITING THE CHALLENGED TESTIMONY 42
A The Plain-Error Doctrine 25
B
C
62 Defendant Fails To Argue Plain Error On Appeal
The Third And Fourth Prongs Of The Plain-Error Doctrine Are Not Satisfied In This Case Because Other Evidence Supporting
72 Defendantrsquos Conviction Is Overwhelming
1
2
92 Defendantrsquos Statements Prior To The Fire
Eyewitness and Expert Testimony Regarding 03 The Fire
23 Defendantrsquos Confession3
4 Defendantrsquos Statements To The FBI 33
5 The Challenged Statements Had No Impact On The Proceeding Below 34
D Defendant Fails To Demonstrate Error In The First Instance 34
III THE RECORD DOES NOT SUPPORT DEFENDANTrsquoS 63 INEFFECTIVE-ASSISTANCE-OF-COUNSEL CLAIM
A 63 Standard Of Review
- ii shy
TABLE OF CONTENTS (continued) PAGE
B The Record In This Direct Appeal Is Insufficient To Permit 63 Review Of Defendantrsquos Claim
C The Evidence That Is Available In The Record Does Not Support A Finding Of Ineffective Assistance Of Counsel 39
1 Standard For Establishing Ineffective Assistance Of 04 Counsel
2 Defendant Is Unable To Demonstrate Sufficient Prejudice And Therefore Cannot Satisfy The Second Prong Of The Inquiry 14
CONCLUSION 24
CERTIFICATE OF COMPLIANCE
CERTIFICATE OF SERVICE
APPELLEErsquoS DESIGNATION OF APPENDIX CONTENTS
- iii shy
TABLE OF AUTHORITIES
CASES PAGE
Campbell v United States 364 F3d 727 (6th Cir 2004) 14 cert denied 543 US 1119 (2005)
Harrison v Motley 478 F3d 750 (6th Cir) 14 cert denied 128 S Ct 444 (2007)
Hicks v Collins 384 F3d 204 (6th Cir 2004) 14 cert denied 545 US 1155 (2005)
Ivory v Jackson 509 F3d 284 (6th Cir 2007) 04 cert denied 128 S Ct 1897 (2008)
Johnson v United States 520 US 461 (1997) 27-28
83 350 US 91 (1955) Michel v Louisiana
Strickland v Washington 466 US 668 (1984) passim
United States v Abboud 438 F3d 554 (6th Cir) cert denied 127 S Ct 446 (2006) 26 34-35
12 38 Fed Appx 200 (6th Cir 2002) United States v Ali
United States v Allison 59 F3d 43 (6th Cir) 83 cert denied 516 US 1002 (1995)
United States v Arnold 486 F3d 177 (6th Cir 2007) cert denied 128 S Ct 871 (2008) passim
United States v Baker 432 F3d 1189 (11th Cir 2005) cert denied 547 US 1085 (2006) 20-21
United States v Barrow 118 F3d 482 (6th Cir 1997) 20-21
- iv shy
CASES (continued) PAGE
82 453 F3d 893 (7th Cir 2006) United States v Birk
73 332 F3d 363 (6th Cir 2003) United States v Brown
52 26 F3d 1380 (6th Cir 1994) United States v Carroll
72 535 US 625 (2002) United States v Cotton
52 957 F2d 264 (6th Cir 1992) United States v Cox
United States v Davis 306 F3d 398 (6th Cir 2002) 73 cert denied 537 US 1208 (2003)
United States v Dedhia 134 F3d 802 (6th Cir) 82 cert denied 523 US 1145 (1998)
73 194 F3d 730 (6th Cir 1999) United States v Fortson
73 415 F3d 537 (6th Cir 2005) United States v Franklin
02 980 F2d 1110 (7th Cir 1992) United States v Fulford
52445 (6th Cir 2006) 463 F3d United States v Gardiner
United States v Graham 484 F3d 413 (6th Cir 2007) 63 cert denied 128 S Ct 1703 (2008)
United States v Hadley 431 F3d 484 (6th Cir 2005) 81 cert denied 127 S Ct 47 (2006)
United States v Hines 398 F3d 713 (6th Cir) cert denied 545 US 1134 (2005) 27-28
United States v Hynes 467 F3d 951 (6th Cir 2006) 37 40
- v shy
CASES (continued) PAGE
United States v Jackson 124 F3d 607 (4th Cir 1997) 91 cert denied 522 US 1066 (1998)
United States v Layne 192 F3d 556 (6th Cir 1999) cert denied 529 US 1029 (2000) 26 35
United States v Lopez-Medina 461 F3d 724 (6th Cir 2006) 37-38
United States v Martinez 430 F3d 317 (6th Cir 2005) cert denied 547 US 1034 (2006) 36-37
United States v McGhee 119 F3d 422 (6th Cir 1997)
United States v Mooneyham 473 F3d 280 (6th Cir)
82
cert denied 128 S Ct 531 (2007) 25 27 34
United States v Namey 364 F3d 843 (6th Cir) cert denied 543 US 875 (2004) 19 24
United States v Neal 78 F3d 901 (4th Cir 1996) 21 23
52 507 US 725 (1993) United States v Olano
12 858 F2d 688 (11th Cir 1988) United States v Parikh
52 516 F3d 479 (6th Cir 2008) United States v Phillips
United States v Reyes-Alvarado 963 F2d 1184 (9th Cir) cert denied 506 US 890 (1992) 21-22
22 199 F3d 821 (6th Cir 1999) SamourvUnited States
83 48 F3d 198 (6th Cir 1995) United States v Snow
83 431 F3d 976 (6th Cir 2005) United States v Sullivan
- vi shy
CASES (continued) PAGE
02 111 F3d 482 (6th Cir 1997) United States v Tandon
United States v Taylor 284 F3d 95 (1st Cir) cert denied 536 US 933 (2002) 82
63 382 F3d 598 (6th Cir 2004) United States v Wagner
United States v Winkle 477 F3d 407 (6th Cir 2007) 73
63 919 F2d 34 (6th Cir 1990) United States v Wunder
STATUTES
18 USC 2 2
2
2
2
18 USC 241
18 USC 371
18 USC 844(h)(1)
18 US
2 42 US C 3631(a)
1 3742 C
- vii shy
IN THE UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT
No 07-2074
UNITED STATES OF AMERICA
Plaintiff-Appellee
v
WAYLAND MULLINS
Defendant-Appellant
ON APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF MICHIGAN
PROOF BRIEF FOR THE UNITED STATES AS PLAINTIFF-APPELLEE
STATEMENT OF JURISDICTION
The government concurs in defendantrsquos jurisdictional statement except with
respect to defendantrsquos reference to 18 USC 3742 Section 3742 addresses
appellate review of sentences imposed on criminal defendants Because defendant
has not challenged his sentence Section 3742 is not applicable here
review by this Court when he elicited allegedly inadmissible testimony during
cross-examination of a government witness
2 Whether in the absence of invited error the district court committed
plain error by not acting sua sponte to prevent defendantrsquos trial counsel from
eliciting the challenged testimony
3 Whether the record is sufficient to permit this Court to address
defendantrsquos claim of ineffective assistance of counsel and if so whether the claim
has merit
STATEMENT OF THE CASE
On January 5 2006 a federal grand jury returned an indictment charging
defendant Wayland Mullins and a co-conspirator Michael Richardson with
conspiracy against rights in violation of 18 USC 241 (Count I) interference with
housing rights in violation of 42 USC 3631(a) and 18 USC 2 (Count II) use of
fire in the commission of a felony in violation of 18 USC 2 and 18 USC
844(h)(1) (Count III) and conspiracy to obstruct justice in violation of 18 USC
371 (Count IV) (R 1 at 1-8 Apx ___)1 Richardson pled guilty to all four
1 Citations to ldquoR rdquo refer to documents in the district court record Citations to ldquoR __rdquo refer to notations in the district court record for which there is no docket number Citations to ldquo Tr rdquo refer by date and page number to the trial transcript Citations to ldquoBr rdquo refer to Defendant-Appellantrsquos Proof
(continued)
-3shy
counts on September 21 2006 (R 92106 plea hearing) Defendant went to
trial on these charges in November 2006 but the jury was unable to reach a
verdict The district court declared a mistrial on November 17 2006 (R
111706 declaration of mistrial)
On December 14 2006 a federal grand jury returned a superseding
indictment charging defendant and another co-conspirator Ricky Cotton with the
same four counts described above Cotton pled guilty to Count I on April 12
2007 (R 41207 plea hearing) Defendant again proceeded to trial and on
April 20 2007 was convicted on all four counts (R 70 Apx __)
On August 28 2007 the district court sentenced defendant to 207 monthsrsquo
imprisonment and ordered him to pay $12400 in restitution (R 78 at 3-6 Apx
___) This appeal followed
STATEMENT OF THE FACTS
From the evidence presented at trial the jury reasonably could have found
the following facts which are set forth in the light most favorable to the
government
1(continued)
Brief On Appeal
-4shy
1 General Background
In 2002 Reginald Doster and his family purchased a home located at 5948
Ziegler Street in Taylor Michigan They made a down payment in February with
the understanding that the transaction would not close until July (Doster 417 Tr
125 138 Apx __) Between February 2002 and July 2002 the Dosters worked to
refurbish the property (Doster 417 Tr 125-126 Apx __) They finished this
process on or about July 28 2002 moved in during the latter part of October
2002 and lived there until approximately August 2005 (Doster 417 Tr 123
131-133 149-150 154 Apx __) Beginning before they moved in and continuing
throughout the time they lived on Ziegler Street the Dosters who are African-
American were the subject of racial slurs and racially-motivated actions by some
of their neighbors
2 Defendantrsquos Reaction To The Dostersrsquo Purchase Of The Ziegler Property
The Doster home was located across the street from the home in which
defendant grew up and in which his mother and other relatives still live (Doster
As such the Dostersrsquo purchase of and efforts to refurbish the house across
the street from the Mullins home did not go unnoticed by defendant or certain
other members of the neighborhood Indeed it was a topic of conversation among
those who were not happy about an African-American family moving into the
neighborhood (Daniely 418 Tr 17-18 Apx __)
During the period in which the Dosters were refurbishing the property
defendant made comments to friends regarding his desire to drive the Dosters from
the neighborhood One such incident occurred during the middle part of July
2002 (Wurts 417 Tr 208-209 Apx __) Defendant and a friend Guy Wurts
were standing in the back of Wurtsrsquo pickup truck which was parked in front of the
Mullins home (Wurts 417 Tr 202 Apx __) The Dosters were out working in
their yard at the time (Wurts 417 Tr 202-203 209 Apx __) Defendant said
something to the effect of ldquoI got to get rid of these niggers Irsquoll find something to
do I donrsquot know what I got to get these niggers out [of] the neighborhoodrdquo
(Wurts 417 Tr 209 Apx __)2 Defendant was looking in the Dostersrsquo direction
2 Similar descriptions of defendantrsquos statements appear elsewhere in Wurtsrsquo testimony (Wurts 417 Tr 201-202 209 260 Apx __)
-6shy
when he made these comments and said the word ldquoniggerrdquo loud enough for the
Dosters to hear it (Wurts 417 Tr 209-210 Apx __) Wurts testified that
defendant was a racist and that defendant ldquoseemed seriousrdquo when he made these
statements (Wurts 417 Tr 239-240 259-260 Apx __)
Debbie Daniely a neighbor and friend of the Mullins family (Daniely 418
Tr 6-8 Apx __) recounted similar statements by defendant Defendant told
Daniely more than once that he was very upset about the Dosters moving into the
neighborhood (Daniely 418 Tr 22 Apx __) She testified that defendant said
something to the effect of ldquoniggers are moving inrdquo and ldquo[w]e have to do something
about itrdquo (Daniely 418 Tr 23 Apx __)3 She believed he was serious when he
said such things (Daniely 418 Tr 25 Apx __)
3 The Fire
During the afternoon of Sunday July 28 2002 defendant along with Lee
Vanderlinden Don Flowers Chuck Proctor Michael Richardson and Ricky
Cotton4 were working in the yard of a neighbor Ann Hixon (Richardson 418
3 Defendant later admitted to the FBI that he made such a statement to Daniely (Rees 418 Tr 203 Apx __)
4 Lee Vanderlinden was the boyfriend of defendantrsquos mother and has lived in the Mullins home since at least 1996 or 1997 (Wurts 417 Tr 197-198 Apx __) Don Flowers was a friend of the Mullins family who often would socialize
(continued)
-7shy
Tr 56-58 Apx __)5 A group that included defendant Richardson Vanderlinden
Flowers and Cotton began making comments about ldquothe niggers next doorrdquo
(Richardson 418 Tr 58-59 Apx __) Richardson suggested burning a cross in
order to drive the Dosters away (Richardson 418 Tr 61 Apx __) Defendant
however went further suggesting they ldquo[t]orch the houserdquo and told the others to
come back later that night (Richardson 418 Tr 62-63 Apx __) Richardson
Vanderlinden Cotton and Flowers returned that evening and met defendant at the
Mullins home across the street from the Dosters (Richardson 418 Tr 63 Apx
__)6 They discussed ldquo[t]orchingrdquo the Doster home and all were in favor of doing
4(continued)
with Lee Vanderlinden at the Mullins home (Church 419 Tr 58-59 Apx __) Chuck Proctor worked with Lee Vanderlinden and often would hang around the Mullins home (Wurts 417 Tr 199-200 Apx __ Church 419 Tr 57-58 Apx __) Michael Richardson was a good friend of defendant who spent a lot of time at the Mullins home (Wurts 417 Tr 201 Apx __) Ricky Cotton lived nearby and also was a regular at the Mullins home (Wurts 417 Tr 200-201 Apx __) As noted above Richardson and Cotton both pled guilty in this case (R 92106 and 41207 plea hearings)
5 Ann Hixon was called by the defense and testified that this gathering could not have taken place on Sunday July 28 She testified that it occurred sometime during the Spring (she could not recall which year) and that it could not have been a Sunday because she always works on Sundays (Hixon 419 Tr 37shy38 Apx __)
Defendantrsquos aunt Casie Church lives in the Mullins home and was called to testify by defendant She stated that she was sitting on the front porch of the house during the late evening and early morning hours of July 28 and 29
(continued)
6
-8shy
so (Richardson 418 Tr 63 Apx __) Each of them encouraged defendant by
ldquo[e]gging him onrdquo and by ldquo[d]aringrdquo and ldquo[i]ncitingrdquo him to do so (Richardson
418 Tr 64 Apx __)
Defendant took a can of gasoline from the garage of the Mullins home and
went to the back of the Doster home (Richardson 418 Tr 64-65 Apx __)
Richardson Cotton Flowers and Vanderlinden served as lookouts with
Richardson following defendant to the Doster home and the other three remaining
across the street (Richardson 418 Tr 64-65 Apx __) Upon reaching the back
of the Doster home defendant either pried open or broke a window and poured
gasoline inside the house and on the windowsill (Richardson 418 Tr 65 111shy
114 Apx __)7 He then started the fire by holding a lighter up to the windowsill
and blowing until it ignited (Richardson 418 Tr 113 Apx __) Once the fire
was lit defendant and Richardson ran back across the street to join the others
where they celebrated and congratulated defendant (Richardson 418 Tr 65-66
6(continued)
(Church 419 Tr 45 Apx __) She testified that there was no one near the garage of the Mullins home during this time (Church 419 Tr 45 Apx __) But she stated that she did see someone named Mike sometime between 10 pm and 3 am (Church 419 Tr 45-46 Apx __)
7 Richardsonrsquos testimony indicates that it may have been a mixture of oil and gasoline (Richardson 418 Tr 65 Apx __)
-9shy
114-115 Apx __) Richardson testified that defendant set the fire because of the
Dostersrsquo race (Richardson 418 Tr 82 Apx __)
The Dosters had not yet moved into the Ziegler property and therefore were
not home at the time of the fire They had spent Sunday July 28 painting the
Ziegler property and left sometime between 7 pm and 8 pm (Doster 417 Tr
129 167-168 Apx __) Reginald Doster discovered there had been a fire when
he along with his wife and ten-year-old daughter returned to the home between 7
am and 9 am the next morning by which time the fire had burned out (Doster
doctrine recognizes that a court cannot be asked by counsel to take a step in a case
and later be convicted of error because it has complied with such requestrdquo)
(citation and internal quotations omitted) ldquoThis doctrine is a branch of the
doctrine of waiver by which courts prevent a party from inducing an erroneous
ruling and later seeking to profit from the legal consequences by having the
verdict vacatedrdquo Barrow 118 F3d at 490-491
Some courts have held that the existence of invited error forecloses any
-20shy
review ndash even for plain error See eg United States v Baker 432 F3d 1189
1216 (11th Cir 2005) cert denied 547 US 1085 (2006) (ldquoIt is a cardinal rule of
appellate review that a party may not challenge as error a ruling or other trial
proceeding invited by that party Where invited error exists it precludes a
court from invoking the plain error rule and reversingrdquo) United States v Fulford
980 F2d 1110 1116 (7th Cir 1992) (ldquoIt is well-settled that where error is invited
not even plain error permits reversalrdquo) This Court however has recognized an
exception holding that ldquo[i]nvited error does not foreclose relief when the
interests of justice demand otherwiserdquo Barrow 118 F3d at 491 In this Circuit
the question ldquo[w]hether the circumstances of a particular case justify deviation
from the normal rule of waiver under this doctrine is left largely to the discretion
of the appellate courtrdquo Ibid Nevertheless ldquo[u]nder the invited error doctrine an
error introduced by the complaining party will cause reversal only in the most
exceptional situationrdquo United States v Tandon 111 F3d 482 489 (6th Cir
1997) (citation and internal quotations omitted)
C Any Error By The District Court In Permitting The Challenged Statements Was Invited Error And Therefore Should Not Be Reviewed By This Court
Here all of the challenged statements were elicited by defendantrsquos retained
trial counsel Br 15-24 This plainly constitutes invited error See United States
-21shy
v Parikh 858 F2d 688 695 (11th Cir 1988) (ldquoWe hold that the admission of out
of court statements by a government witness when responding to an inquiry by
defense counsel creates lsquoinvited errorrsquordquo) See also Baker 432 F3d at 1215-1216
(defendant ldquocannot now complain about the district courtrsquos errorrdquo where his
counsel ldquoinvited the errorrdquo by eliciting hearsay during cross-examination) United
States v Neal 78 F3d 901 904 (4th Cir 1996) (defendant ldquoinvited the errorrdquo and
it therefore ldquoprovides no basis for reversalrdquo where ldquo[a]t trial [defendant] did not
object to any of the statements he now challengesrdquo and ldquomost were elicited by his
own attorney from a government witness during cross-examinationrdquo) United
States v Reyes-Alvarado 963 F2d 1184 1187 (9th Cir 1992) cert denied 506
US 890 (1992) (finding invited error and refusing to reverse where ldquoappellantrsquos
counsel solicited the testimony which he now claims should have been excludedrdquo
and ldquodid not seek to strike this testimony at the time it was givenrdquo)9
As a threshold matter it bears noting that defendant fails to acknowledge
the existence of invited error and makes no argument as to why ldquothe interests of
justicerdquo Barrow 118 F3d at 491 require this Court to refrain from applying the
invited-error doctrine Accordingly defendant has waived any right to invoke the
9 This Court has reached a similar conclusion albeit in an unpublished decision See United States v Ali 38 Fed Appx 220 224 (6th Cir Mar 26 2002) (unpublished)
-22shy
interests-of-justice exception recognized by this Court See United States v
Samour 199 F3d 821 822 n1 (6th Cir 1999) (defendant ldquowaived his right to
argue the applicability of [favorable precedent] by failing to raise the issue on
appealrdquo)
Even if not waived however the interests of justice do not require this
Court to depart from the general rule that relief is foreclosed by invited error The
challenged statements were not the result of mere oversight or an isolated error by
defendantrsquos trial counsel Rather this appears to be a classic example of trial
strategy gone awry ndash not a situation in which failure to reverse contravenes the
interests of justice Indeed in this case the interests of justice weigh in favor of
invoking the invited-error doctrine as defendant presumably sought to benefit
from eliciting the challenged statements and thus should not now be heard to
argue their inadmissibility simply because his strategy failed See Reyes-
Alvarado 963 F2d at 1187 (ldquoFrom the transcript it appears that counsel thought
his pursuit of this line of questioning might benefit his client His tactics
backfired and his client was convicted A defendant cannot have it both
ways This was invited error and therefore not grounds for reversalrdquo)
Moreover the governmentrsquos trial counsel showed an abundance of caution
by specifically raising the issue and asking whether it should be discussed at
-23shy
sidebar10 This too weighs against a finding that the interests of justice require
reversal See Neal 78 F3d at 904 (ldquoAt one point the prosecutor even tried to
warn [defendantrsquos] attorney about pursuing a line of questioning relating to the
defendantrsquos prior conduct but [defendantrsquos] attorney persisted Under these
circumstances [defendant] cannot complain of error which he himself has
invitedrdquo) (citation and internal quotations omitted)
Simply put this case precisely illustrates both the purpose behind the
10 The following exchange occurred when defense counsel elicited statements from the witness regarding what Ricky Cotton told the government
[Defense Counsel] Just tell us what Ricky Cotton said and let me -shytell us what obviously is hearsay Irsquoll sit down Tell us what Ricky Cotton -shy
[Government Counsel] Your Honor should we have a sidebar on this
[The Court] What for
[Government Counsel] Irsquom not sure to figure out where we are
[Defense Counsel] This is where we are what Ricky Cotton said
[The Court] Are you objecting
[Government Counsel] If he doesnrsquot have any objection to the witness saying what Ricky Cotton said thatrsquos fine
[Defense Counsel] Letrsquos go Tell us what Ricky Cotton said
(418 Tr 173-174 Apx __)
-24shy
invited-error doctrine and the need to enforce it strictly Defendantrsquos appeal does
not challenge any action by the government Nor does he take issue with the
district courtrsquos instructions to the jury the sufficiency of the evidence to support
his conviction or the reasonableness of his sentence He also does not contend the
district court improperly ruled on any objection made by his trial counsel Rather
his arguments on appeal arise solely from the actions of his own retained trial
counsel Such claims must be rejected on their face as a contrary rule would
create perverse incentives for defendants to invite some small amount of error in
every trial so as to create grounds for appeal Accordingly this Court should
apply the invited-error doctrine and affirm the judgment below without reaching
the question whether plain error exists
II
THE DISTRICT COURT DID NOT COMMIT PLAIN ERROR IN FAILING TO SUA SPONTE PREVENT DEFENDANTrsquoS TRIAL COUNSEL FROM
ELICITING THE CHALLENGED TESTIMONY
As noted above in Section IA if this Court determines that the invited-
error doctrine does not apply it should review admission of the challenged
statements for plain error United States v Namey 364 F3d 843 846 (6th Cir
2004)
-25shy
A The Plain-Error Doctrine
ldquoThe plain error doctrine mandates reversal only in exceptional
circumstances and only where the error is so plain that the trial judge and
prosecutor were derelict in countenancing itrdquo United States v Gardiner 463 F3d
445 459 (6th Cir 2006) (quoting United States v Carroll 26 F3d 1380 1383
(6th Cir 1994)) It ldquois to be used sparingly only in exceptional circumstances
and solely to avoid a miscarriage of justicerdquo United States v Phillips 516 F3d
479 487 (6th Cir 2008) (quoting United States v Cox 957 F2d 264 267 (6th
Cir 1992))
ldquoTo show plain error a defendant must establish the following (1) error
(2) that is plain and (3) that affects substantial rights If these three conditions are
met an appellate court may then exercise its discretion to notice a forfeited error
but only if (4) the error seriously affects the fairness integrity or public reputation
of judicial proceedingsrdquo United States v Arnold 486 F3d 177 194 (6th Cir
2007) cert denied 128 S Ct 871 (2008) (citation and internal quotations
omitted) ldquoThe phrase lsquoaffects substantial rightsrsquo lsquomeans prejudicial It must have
affected the outcome of the district court proceedingsrsquordquo United States v
(ldquo[I]ssues adverted to in a perfunctory manner unaccompanied by some effort at
developed argumentation are deemed waivedrdquo) (quoting McPherson v Kelsey
125 F3d 989 995-996 (6th Cir 1997))
-27shy
C The Third And Fourth Prongs Of The Plain-Error Doctrine Are Not Satisfied In This Case Because Other Evidence Supporting Defendantrsquos Conviction Is Overwhelming
Even if the issue were fully briefed a finding of plain error would be
improper because defendant cannot satisfy the third or fourth prongs of the
inquiry The third prong of the plain-error inquiry ndash ie the requirement that the
error ldquoaffects substantial rightsrdquo Arnold 486 F3d at 194 by ldquoaffect[ing] the
outcome of the district court proceedingsrdquo Mooneyham 473 F3d at 288 ndash is not
satisfied where the evidence against the defendant is overwhelming See
Mooneyham 473 F3d at 288 United States v Hines 398 F3d 713 718-719 (6th
Cir) cert denied 545 US 1134 (2005)
Likewise the fourth prong of the inquiry ndash ie the requirement that the
error be said to have ldquoseriously affect[ed] the fairness integrity or public
reputation of judicial proceedingsrdquo Arnold 486 F3d at 194 ndash also is not met when
other evidence is ldquooverwhelmingrdquo and ldquoessentially uncontrovertedrdquo See United
States v Cotton 535 US 625 632-633 (2002) Johnson v United States 520
US 461 469-470 (1997) Hines 398 F3d at 718-719 Indeed as both the
Supreme Court and this Court have recognized with regard to the fourth prong of
the inquiry in some cases ldquoit would be the reversal of a conviction which
would have th[e] effectrdquo of ldquoseriously affect[ing] the fairness integrity or public
-28shy
reputation of judicial proceedingsrdquo Johnson 520 US at 470 (internal quotations
omitted) (emphasis added) see also United States v McGhee 119 F3d 422 424shy
425 (6th Cir 1997) This is so because ldquo[r]eversal for error regardless of its effect
on the judgment encourages litigants to abuse the judicial process and bestirs the
public to ridicule itrdquo Johnson 520 US at 470 (citation and internal quotations
omitted) see also McGhee 119 F3d at 424-425
In view of the foregoing courts often cite the presence of overwhelming
evidence as the basis for concluding that a defendant has failed to meet both the
third and fourth prongs of the plain-error inquiry See Hines 398 F3d at 718-719
United States v Dedhia 134 F3d 802 809 (6th Cir) cert denied 523 US 1145
(1998) see also United States v Birk 453 F3d 893 898 (7th Cir 2006) United
States v Taylor 284 F3d 95 102 (1st Cir) cert denied 536 US 933 (2002)
This Court should follow that approach here as there is overwhelming evidence ndash
separate and apart from the challenged statements ndash to support defendantrsquos
conviction Specifically as explained more fully below testimony at trial
established that defendant (1) spoke openly to others during the weeks leading up
to the fire regarding his desire to force the Dosters from the neighborhood (2) was
the one who set the fire (3) confided to a friend afterward that he both set the fire
and performed the lawn job with the intent to drive the Dosters away because of
-29shy
their race and (4) told conflicting stories to the FBI during the course of its
investigation one of which included an admission that he was at least indirectly
involved in setting the fire
1 Defendantrsquos Statements Prior To The Fire
Two witnesses offered detailed accounts of conversations they had with
defendant prior to the date of the fire During these conversations defendant
expressed his desire to drive the Dosters from their home
Guy Wurts testified that in mid-July 2002 Defendant said something to the
effect of ldquoI got to get rid of these niggers Irsquoll find something to do I donrsquot know
what I got to get these niggers out [of] the neighborhoodrdquo (Wurts 417 Tr 208shy
209 Apx __) Wurts testified that defendant looked in the Dostersrsquo direction
when he made these comments and said the word ldquoniggerrdquo loud enough for the
Dosters ndash who were working in their yard at the time ndash to hear it (Wurts 417 Tr
202-203 209-210 Apx __) Wurts further testified that defendant ldquoseemed
seriousrdquo when he made these statements (Wurts 417 Tr 259 Apx __)
Debbie Daniely recounted similar statements by defendant Specifically
defendant told Daniely more than once that he was very upset about the Dosters
moving into the neighborhood saying something to the effect of ldquoniggers are
moving inrdquo and ldquo[w]e have to do something about itrdquo (Daniely 418 Tr 22-25
-30shy
Apx __) Defendant later admitted to the FBI that he made such a statement to
ldquo[t]his Court has lsquoroutinely concluded that such claims are best brought by a
defendant in a post-conviction proceeding under 28 USC sect 2255 so that the
-37shy
parties can develop an adequate record on the issuersquordquo Martinez 430 F3d at 338
(quoting United States v Brown 332 F3d 363 368 (6th Cir 2003)) ldquoThere is
however lsquoa narrow exceptionrsquo to this rule lsquowhen the existing record is adequate to
assess properly the merits of the claimrsquordquo United States v Hynes 467 F3d 951
969 (6th Cir 2006) (quoting United States v Franklin 415 F3d 537 555-556
(6th Cir 2005)) See also United States v Winkle 477 F3d 407 421 (6th Cir
2007) (ldquoThis Court typically will not review a claim of ineffective assistance on
direct appeal except in rare cases where the error is apparent from the existing
recordrdquo) (quoting United States v Lopez-Medina 461 F3d 724 737 (6th Cir
2006))
No basis exists for departing from the general rule against addressing
ineffective-assistance claims on direct appeal As this Court has noted ldquo[t]he trial
process contains a myriad of complex decisions that for strategic reasons are
sound when made but may appear unsound with the benefit of hindsightrdquo United
States v Davis 306 F3d 398 422 (6th Cir 2002) cert denied 537 US 1208
(2003) (quoting United States v Fortson 194 F3d 730 736 (6th Cir 1999))
Moreover ldquo[j]udicial scrutiny of counselrsquos performance must be highly
deferentialrdquo and ldquoa court must indulge a strong presumption that counselrsquos
conduct falls within the wide range of reasonable professional assistancerdquo
-38shy
Strickland v Washington 466 US 668 689 (1984) Thus to establish ineffective
assistance ldquothe defendant must overcome the presumption that under the
circumstances the challenged action lsquomight be considered sound trial strategyrsquordquo
Ibid (quoting Michel v Louisiana 350 US 91 101 (1955))
Here the decision by defendantrsquos retained trial counsel to elicit the
challenged statements during cross-examination of a government witness
undeniably constitutes an element of trial strategy that cannot be analyzed at this
stage of the proceedings In particular because this is a direct appeal there is no
evidence in the record regarding defense counselrsquos trial strategy This Court
repeatedly has refused to review ineffective-assistance claims under such
circumstances See eg Lopez-Medina 461 F3d at 737 (ldquoAbsent evidence
specifically addressing counselrsquos performance we cannot determine whether his
actions reflected a reasoned trial strategyrdquo) United States v Sullivan 431 F3d
976 986 (6th Cir 2005) (ldquoWithout an explanation from trial counsel as to why he
failed to call the alibi witness we have no basis to determine whether this decision
was the result of inadequate representation or reasonable trial strategyrdquo) United
States v Allison 59 F3d 43 47 (6th Cir) cert denied 516 US 1002 (1995)
(ldquo[T]he sparse record before this court does not reveal whether the attorneyrsquos
actions could be considered sound trial strategyrdquo) United States v Snow 48 F3d
-39shy
198 199 (6th Cir 1995) (ldquoThe record before this court simply is insufficient to
show whether the alleged wrongful acts could be considered sound trial
strategyrdquo) Thus defendantrsquos ineffective-assistance claim must be examined ndash if
at all ndash in a separate collateral proceeding brought pursuant to Section 2255
C The Evidence That Is Available In The Record Does Not Support A Finding Of Ineffective Assistance Of Counsel
As stated above the governmentrsquos position is that the current record is not
sufficient to permit this Court to address defendantrsquos ineffective-assistance claim
in this direct appeal However if the Court disagrees ndash or desires in the interest of
judicial economy to address defendantrsquos claim on direct appeal ndash it should reject
the claim because defendant fails to satisfy the second prong of the ineffective-
assistance inquiry11
11 The government does not concede that the first prong of the Strickland inquiry is satisfied in this case Rather as noted above it is not possible to resolve the issue at this point because the record does not indicate precisely what defendantrsquos trial counsel was thinking what his strategy was or why he elected to pursue certain lines of questioning In the event that defendant elects to bring a collateral challenge pursuant to Section 2255 the government reserves the right to address the first prong of Strickland inquiry and to further develop its argument as to the second prong The governmentrsquos decision not to do so in this brief is based on the incomplete nature of the record with regard to the Strickland inquiry and should not be construed as a waiver or forfeiture of any arguments relating to defendantrsquos ineffective-assistance claim
-40shy
1 Standard For Establishing Ineffective Assistance Of Counsel
To prove ineffective assistance of counsel under Strickland a defendant
first ldquomust demonstrate that counselrsquos performance fell lsquobelow the objective
standard of reasonablenessrsquordquo Ivory v Jackson 509 F3d 284 294 (6th Cir 2007)
cert denied 128 S Ct 1897 (2008) (quoting Strickland 466 US at 688)) ldquoThe
defendant must then demonstrate that lsquothere is a reasonable probability that but
for counselrsquos unprofessional errors the result of the proceeding would have been
different A reasonable probability is a probability sufficient to undermine the
confidence in the outcomersquordquo Ibid (quoting Strickland 466 US at 694)
Significantly this Court ldquoneed not decide whether defense counsel
performed deficiently if disposing of an ineffective-assistance claim on the ground
of lack of sufficient prejudice would be easierrdquo Hynes 467 F3d at 970 See also
Ivory 509 F3d at 294 (ldquo[A] court need not determine whether counselrsquos
performance was deficient before examining the prejudice suffered by the
defendant as a result of the alleged deficiencies If it is easier to dispose of
an ineffectiveness claim on the ground of lack of sufficient prejudice which we
expect will often be so that course should be followedrdquo) (quoting Strickland 466
US at 697)
-41shy
2 Defendant Is Unable To Demonstrate Sufficient Prejudice And Therefore Cannot Satisfy The Second Prong Of The Inquiry
ldquoTo show prejudice [defendant] must demonstrate that lsquothere is a
reasonable probability that but for counselrsquos unprofessional errors the result of
the proceeding would have been differentrsquordquo Harrison v Motley 478 F3d 750
756 (6th Cir) cert denied 128 S Ct 444 (2007) (quoting Strickland 466 US at
694)) As set forth above in Section IIC the evidence of defendantrsquos guilt is
overwhelming and the result therefore would not have been different absent the
challenged statements This Court repeatedly has determined that the second
prong of the Strickland inquiry is not met under such circumstances See eg
Harrison 478 F3d at 757 (defendant ldquofailed to show that his attorneysrsquo alleged
conflict of interest resulted in prejudicerdquo where ldquothe evidence admitted against
[defendant] at trial was lsquooverwhelmingrsquordquo) Hicks v Collins 384 F3d 204 215
(6th Cir 2004) cert denied 545 US 1155 (2005) (holding that defendant cannot
satisfy the second prong of Strickland where ldquothere was overwhelming evidence of
[defendantrsquos] guiltrdquo) Campbell v United States 364 F3d 727 736 (6th Cir
2004) cert denied 543 US 1119 (2005) (ldquoGiven the overwhelming evidence
establishing [defendantrsquos] guilt we believe that he would not have been able to
show that but for his attorneyrsquos failure to object to the prosecutorrsquos alleged
-42shy
misconduct the result would have been differentrdquo)
Accordingly even if this Court determines that the record is sufficient for it
to address defendantrsquos ineffective-assistance claim on direct appeal it should
reject this claim based on his failure to satisfy the second prong of the Strickland
inquiry
CONCLUSION
For the foregoing reasons this Court should affirm the judgment below
Respectfully submitted
GRACE CHUNG BECKER Acting Assistant Attorney General Civil Rights Division
DIANA K FLYNN DIRK C PHILLIPS Attorneys US Department of Justice Civil Rights Divisions Appellate Section Ben Franklin Station PO Box 14403 Washington DC 20044-4403 (202) 305-4876
CERTIFICATE OF COMPLIANCE
Pursuant to Federal Rule of Appellate Procedure 32(a)(7)(B) I hereby
certify that this brief is proportionally spaced 14-point Times New Roman font
Per WordPerfect 12 software the brief contains 9022 words excluding those
parts exempted by Federal Rule of Appellate Procedure 32(a)(7)(B)(iii)
DIRK C PHILLIPS Attorney
DATED June 18 2008
CERTIFICATE OF SERVICE
I hereby certify that on June 18 2008 a copy of the foregoing PROOF
BRIEF FOR THE UNITED STATES AS PLAINTIFF-APPELLEE was served by
first class mail postage prepaid on counsel of record at the following address
Joan E Morgan 2057 Orchard Lake Road Sylvan Lake MI 48320
DIRK C PHILLIPS Attorney
APPELLEErsquoS DESIGNATION OF APPENDIX CONTENTS
APPELLEErsquoS DESIGNATION OF APPENDIX CONTENTS
Appellee United States of America designates the following items to be
review by this Court when he elicited allegedly inadmissible testimony during
cross-examination of a government witness
2 Whether in the absence of invited error the district court committed
plain error by not acting sua sponte to prevent defendantrsquos trial counsel from
eliciting the challenged testimony
3 Whether the record is sufficient to permit this Court to address
defendantrsquos claim of ineffective assistance of counsel and if so whether the claim
has merit
STATEMENT OF THE CASE
On January 5 2006 a federal grand jury returned an indictment charging
defendant Wayland Mullins and a co-conspirator Michael Richardson with
conspiracy against rights in violation of 18 USC 241 (Count I) interference with
housing rights in violation of 42 USC 3631(a) and 18 USC 2 (Count II) use of
fire in the commission of a felony in violation of 18 USC 2 and 18 USC
844(h)(1) (Count III) and conspiracy to obstruct justice in violation of 18 USC
371 (Count IV) (R 1 at 1-8 Apx ___)1 Richardson pled guilty to all four
1 Citations to ldquoR rdquo refer to documents in the district court record Citations to ldquoR __rdquo refer to notations in the district court record for which there is no docket number Citations to ldquo Tr rdquo refer by date and page number to the trial transcript Citations to ldquoBr rdquo refer to Defendant-Appellantrsquos Proof
(continued)
-3shy
counts on September 21 2006 (R 92106 plea hearing) Defendant went to
trial on these charges in November 2006 but the jury was unable to reach a
verdict The district court declared a mistrial on November 17 2006 (R
111706 declaration of mistrial)
On December 14 2006 a federal grand jury returned a superseding
indictment charging defendant and another co-conspirator Ricky Cotton with the
same four counts described above Cotton pled guilty to Count I on April 12
2007 (R 41207 plea hearing) Defendant again proceeded to trial and on
April 20 2007 was convicted on all four counts (R 70 Apx __)
On August 28 2007 the district court sentenced defendant to 207 monthsrsquo
imprisonment and ordered him to pay $12400 in restitution (R 78 at 3-6 Apx
___) This appeal followed
STATEMENT OF THE FACTS
From the evidence presented at trial the jury reasonably could have found
the following facts which are set forth in the light most favorable to the
government
1(continued)
Brief On Appeal
-4shy
1 General Background
In 2002 Reginald Doster and his family purchased a home located at 5948
Ziegler Street in Taylor Michigan They made a down payment in February with
the understanding that the transaction would not close until July (Doster 417 Tr
125 138 Apx __) Between February 2002 and July 2002 the Dosters worked to
refurbish the property (Doster 417 Tr 125-126 Apx __) They finished this
process on or about July 28 2002 moved in during the latter part of October
2002 and lived there until approximately August 2005 (Doster 417 Tr 123
131-133 149-150 154 Apx __) Beginning before they moved in and continuing
throughout the time they lived on Ziegler Street the Dosters who are African-
American were the subject of racial slurs and racially-motivated actions by some
of their neighbors
2 Defendantrsquos Reaction To The Dostersrsquo Purchase Of The Ziegler Property
The Doster home was located across the street from the home in which
defendant grew up and in which his mother and other relatives still live (Doster
As such the Dostersrsquo purchase of and efforts to refurbish the house across
the street from the Mullins home did not go unnoticed by defendant or certain
other members of the neighborhood Indeed it was a topic of conversation among
those who were not happy about an African-American family moving into the
neighborhood (Daniely 418 Tr 17-18 Apx __)
During the period in which the Dosters were refurbishing the property
defendant made comments to friends regarding his desire to drive the Dosters from
the neighborhood One such incident occurred during the middle part of July
2002 (Wurts 417 Tr 208-209 Apx __) Defendant and a friend Guy Wurts
were standing in the back of Wurtsrsquo pickup truck which was parked in front of the
Mullins home (Wurts 417 Tr 202 Apx __) The Dosters were out working in
their yard at the time (Wurts 417 Tr 202-203 209 Apx __) Defendant said
something to the effect of ldquoI got to get rid of these niggers Irsquoll find something to
do I donrsquot know what I got to get these niggers out [of] the neighborhoodrdquo
(Wurts 417 Tr 209 Apx __)2 Defendant was looking in the Dostersrsquo direction
2 Similar descriptions of defendantrsquos statements appear elsewhere in Wurtsrsquo testimony (Wurts 417 Tr 201-202 209 260 Apx __)
-6shy
when he made these comments and said the word ldquoniggerrdquo loud enough for the
Dosters to hear it (Wurts 417 Tr 209-210 Apx __) Wurts testified that
defendant was a racist and that defendant ldquoseemed seriousrdquo when he made these
statements (Wurts 417 Tr 239-240 259-260 Apx __)
Debbie Daniely a neighbor and friend of the Mullins family (Daniely 418
Tr 6-8 Apx __) recounted similar statements by defendant Defendant told
Daniely more than once that he was very upset about the Dosters moving into the
neighborhood (Daniely 418 Tr 22 Apx __) She testified that defendant said
something to the effect of ldquoniggers are moving inrdquo and ldquo[w]e have to do something
about itrdquo (Daniely 418 Tr 23 Apx __)3 She believed he was serious when he
said such things (Daniely 418 Tr 25 Apx __)
3 The Fire
During the afternoon of Sunday July 28 2002 defendant along with Lee
Vanderlinden Don Flowers Chuck Proctor Michael Richardson and Ricky
Cotton4 were working in the yard of a neighbor Ann Hixon (Richardson 418
3 Defendant later admitted to the FBI that he made such a statement to Daniely (Rees 418 Tr 203 Apx __)
4 Lee Vanderlinden was the boyfriend of defendantrsquos mother and has lived in the Mullins home since at least 1996 or 1997 (Wurts 417 Tr 197-198 Apx __) Don Flowers was a friend of the Mullins family who often would socialize
(continued)
-7shy
Tr 56-58 Apx __)5 A group that included defendant Richardson Vanderlinden
Flowers and Cotton began making comments about ldquothe niggers next doorrdquo
(Richardson 418 Tr 58-59 Apx __) Richardson suggested burning a cross in
order to drive the Dosters away (Richardson 418 Tr 61 Apx __) Defendant
however went further suggesting they ldquo[t]orch the houserdquo and told the others to
come back later that night (Richardson 418 Tr 62-63 Apx __) Richardson
Vanderlinden Cotton and Flowers returned that evening and met defendant at the
Mullins home across the street from the Dosters (Richardson 418 Tr 63 Apx
__)6 They discussed ldquo[t]orchingrdquo the Doster home and all were in favor of doing
4(continued)
with Lee Vanderlinden at the Mullins home (Church 419 Tr 58-59 Apx __) Chuck Proctor worked with Lee Vanderlinden and often would hang around the Mullins home (Wurts 417 Tr 199-200 Apx __ Church 419 Tr 57-58 Apx __) Michael Richardson was a good friend of defendant who spent a lot of time at the Mullins home (Wurts 417 Tr 201 Apx __) Ricky Cotton lived nearby and also was a regular at the Mullins home (Wurts 417 Tr 200-201 Apx __) As noted above Richardson and Cotton both pled guilty in this case (R 92106 and 41207 plea hearings)
5 Ann Hixon was called by the defense and testified that this gathering could not have taken place on Sunday July 28 She testified that it occurred sometime during the Spring (she could not recall which year) and that it could not have been a Sunday because she always works on Sundays (Hixon 419 Tr 37shy38 Apx __)
Defendantrsquos aunt Casie Church lives in the Mullins home and was called to testify by defendant She stated that she was sitting on the front porch of the house during the late evening and early morning hours of July 28 and 29
(continued)
6
-8shy
so (Richardson 418 Tr 63 Apx __) Each of them encouraged defendant by
ldquo[e]gging him onrdquo and by ldquo[d]aringrdquo and ldquo[i]ncitingrdquo him to do so (Richardson
418 Tr 64 Apx __)
Defendant took a can of gasoline from the garage of the Mullins home and
went to the back of the Doster home (Richardson 418 Tr 64-65 Apx __)
Richardson Cotton Flowers and Vanderlinden served as lookouts with
Richardson following defendant to the Doster home and the other three remaining
across the street (Richardson 418 Tr 64-65 Apx __) Upon reaching the back
of the Doster home defendant either pried open or broke a window and poured
gasoline inside the house and on the windowsill (Richardson 418 Tr 65 111shy
114 Apx __)7 He then started the fire by holding a lighter up to the windowsill
and blowing until it ignited (Richardson 418 Tr 113 Apx __) Once the fire
was lit defendant and Richardson ran back across the street to join the others
where they celebrated and congratulated defendant (Richardson 418 Tr 65-66
6(continued)
(Church 419 Tr 45 Apx __) She testified that there was no one near the garage of the Mullins home during this time (Church 419 Tr 45 Apx __) But she stated that she did see someone named Mike sometime between 10 pm and 3 am (Church 419 Tr 45-46 Apx __)
7 Richardsonrsquos testimony indicates that it may have been a mixture of oil and gasoline (Richardson 418 Tr 65 Apx __)
-9shy
114-115 Apx __) Richardson testified that defendant set the fire because of the
Dostersrsquo race (Richardson 418 Tr 82 Apx __)
The Dosters had not yet moved into the Ziegler property and therefore were
not home at the time of the fire They had spent Sunday July 28 painting the
Ziegler property and left sometime between 7 pm and 8 pm (Doster 417 Tr
129 167-168 Apx __) Reginald Doster discovered there had been a fire when
he along with his wife and ten-year-old daughter returned to the home between 7
am and 9 am the next morning by which time the fire had burned out (Doster
doctrine recognizes that a court cannot be asked by counsel to take a step in a case
and later be convicted of error because it has complied with such requestrdquo)
(citation and internal quotations omitted) ldquoThis doctrine is a branch of the
doctrine of waiver by which courts prevent a party from inducing an erroneous
ruling and later seeking to profit from the legal consequences by having the
verdict vacatedrdquo Barrow 118 F3d at 490-491
Some courts have held that the existence of invited error forecloses any
-20shy
review ndash even for plain error See eg United States v Baker 432 F3d 1189
1216 (11th Cir 2005) cert denied 547 US 1085 (2006) (ldquoIt is a cardinal rule of
appellate review that a party may not challenge as error a ruling or other trial
proceeding invited by that party Where invited error exists it precludes a
court from invoking the plain error rule and reversingrdquo) United States v Fulford
980 F2d 1110 1116 (7th Cir 1992) (ldquoIt is well-settled that where error is invited
not even plain error permits reversalrdquo) This Court however has recognized an
exception holding that ldquo[i]nvited error does not foreclose relief when the
interests of justice demand otherwiserdquo Barrow 118 F3d at 491 In this Circuit
the question ldquo[w]hether the circumstances of a particular case justify deviation
from the normal rule of waiver under this doctrine is left largely to the discretion
of the appellate courtrdquo Ibid Nevertheless ldquo[u]nder the invited error doctrine an
error introduced by the complaining party will cause reversal only in the most
exceptional situationrdquo United States v Tandon 111 F3d 482 489 (6th Cir
1997) (citation and internal quotations omitted)
C Any Error By The District Court In Permitting The Challenged Statements Was Invited Error And Therefore Should Not Be Reviewed By This Court
Here all of the challenged statements were elicited by defendantrsquos retained
trial counsel Br 15-24 This plainly constitutes invited error See United States
-21shy
v Parikh 858 F2d 688 695 (11th Cir 1988) (ldquoWe hold that the admission of out
of court statements by a government witness when responding to an inquiry by
defense counsel creates lsquoinvited errorrsquordquo) See also Baker 432 F3d at 1215-1216
(defendant ldquocannot now complain about the district courtrsquos errorrdquo where his
counsel ldquoinvited the errorrdquo by eliciting hearsay during cross-examination) United
States v Neal 78 F3d 901 904 (4th Cir 1996) (defendant ldquoinvited the errorrdquo and
it therefore ldquoprovides no basis for reversalrdquo where ldquo[a]t trial [defendant] did not
object to any of the statements he now challengesrdquo and ldquomost were elicited by his
own attorney from a government witness during cross-examinationrdquo) United
States v Reyes-Alvarado 963 F2d 1184 1187 (9th Cir 1992) cert denied 506
US 890 (1992) (finding invited error and refusing to reverse where ldquoappellantrsquos
counsel solicited the testimony which he now claims should have been excludedrdquo
and ldquodid not seek to strike this testimony at the time it was givenrdquo)9
As a threshold matter it bears noting that defendant fails to acknowledge
the existence of invited error and makes no argument as to why ldquothe interests of
justicerdquo Barrow 118 F3d at 491 require this Court to refrain from applying the
invited-error doctrine Accordingly defendant has waived any right to invoke the
9 This Court has reached a similar conclusion albeit in an unpublished decision See United States v Ali 38 Fed Appx 220 224 (6th Cir Mar 26 2002) (unpublished)
-22shy
interests-of-justice exception recognized by this Court See United States v
Samour 199 F3d 821 822 n1 (6th Cir 1999) (defendant ldquowaived his right to
argue the applicability of [favorable precedent] by failing to raise the issue on
appealrdquo)
Even if not waived however the interests of justice do not require this
Court to depart from the general rule that relief is foreclosed by invited error The
challenged statements were not the result of mere oversight or an isolated error by
defendantrsquos trial counsel Rather this appears to be a classic example of trial
strategy gone awry ndash not a situation in which failure to reverse contravenes the
interests of justice Indeed in this case the interests of justice weigh in favor of
invoking the invited-error doctrine as defendant presumably sought to benefit
from eliciting the challenged statements and thus should not now be heard to
argue their inadmissibility simply because his strategy failed See Reyes-
Alvarado 963 F2d at 1187 (ldquoFrom the transcript it appears that counsel thought
his pursuit of this line of questioning might benefit his client His tactics
backfired and his client was convicted A defendant cannot have it both
ways This was invited error and therefore not grounds for reversalrdquo)
Moreover the governmentrsquos trial counsel showed an abundance of caution
by specifically raising the issue and asking whether it should be discussed at
-23shy
sidebar10 This too weighs against a finding that the interests of justice require
reversal See Neal 78 F3d at 904 (ldquoAt one point the prosecutor even tried to
warn [defendantrsquos] attorney about pursuing a line of questioning relating to the
defendantrsquos prior conduct but [defendantrsquos] attorney persisted Under these
circumstances [defendant] cannot complain of error which he himself has
invitedrdquo) (citation and internal quotations omitted)
Simply put this case precisely illustrates both the purpose behind the
10 The following exchange occurred when defense counsel elicited statements from the witness regarding what Ricky Cotton told the government
[Defense Counsel] Just tell us what Ricky Cotton said and let me -shytell us what obviously is hearsay Irsquoll sit down Tell us what Ricky Cotton -shy
[Government Counsel] Your Honor should we have a sidebar on this
[The Court] What for
[Government Counsel] Irsquom not sure to figure out where we are
[Defense Counsel] This is where we are what Ricky Cotton said
[The Court] Are you objecting
[Government Counsel] If he doesnrsquot have any objection to the witness saying what Ricky Cotton said thatrsquos fine
[Defense Counsel] Letrsquos go Tell us what Ricky Cotton said
(418 Tr 173-174 Apx __)
-24shy
invited-error doctrine and the need to enforce it strictly Defendantrsquos appeal does
not challenge any action by the government Nor does he take issue with the
district courtrsquos instructions to the jury the sufficiency of the evidence to support
his conviction or the reasonableness of his sentence He also does not contend the
district court improperly ruled on any objection made by his trial counsel Rather
his arguments on appeal arise solely from the actions of his own retained trial
counsel Such claims must be rejected on their face as a contrary rule would
create perverse incentives for defendants to invite some small amount of error in
every trial so as to create grounds for appeal Accordingly this Court should
apply the invited-error doctrine and affirm the judgment below without reaching
the question whether plain error exists
II
THE DISTRICT COURT DID NOT COMMIT PLAIN ERROR IN FAILING TO SUA SPONTE PREVENT DEFENDANTrsquoS TRIAL COUNSEL FROM
ELICITING THE CHALLENGED TESTIMONY
As noted above in Section IA if this Court determines that the invited-
error doctrine does not apply it should review admission of the challenged
statements for plain error United States v Namey 364 F3d 843 846 (6th Cir
2004)
-25shy
A The Plain-Error Doctrine
ldquoThe plain error doctrine mandates reversal only in exceptional
circumstances and only where the error is so plain that the trial judge and
prosecutor were derelict in countenancing itrdquo United States v Gardiner 463 F3d
445 459 (6th Cir 2006) (quoting United States v Carroll 26 F3d 1380 1383
(6th Cir 1994)) It ldquois to be used sparingly only in exceptional circumstances
and solely to avoid a miscarriage of justicerdquo United States v Phillips 516 F3d
479 487 (6th Cir 2008) (quoting United States v Cox 957 F2d 264 267 (6th
Cir 1992))
ldquoTo show plain error a defendant must establish the following (1) error
(2) that is plain and (3) that affects substantial rights If these three conditions are
met an appellate court may then exercise its discretion to notice a forfeited error
but only if (4) the error seriously affects the fairness integrity or public reputation
of judicial proceedingsrdquo United States v Arnold 486 F3d 177 194 (6th Cir
2007) cert denied 128 S Ct 871 (2008) (citation and internal quotations
omitted) ldquoThe phrase lsquoaffects substantial rightsrsquo lsquomeans prejudicial It must have
affected the outcome of the district court proceedingsrsquordquo United States v
(ldquo[I]ssues adverted to in a perfunctory manner unaccompanied by some effort at
developed argumentation are deemed waivedrdquo) (quoting McPherson v Kelsey
125 F3d 989 995-996 (6th Cir 1997))
-27shy
C The Third And Fourth Prongs Of The Plain-Error Doctrine Are Not Satisfied In This Case Because Other Evidence Supporting Defendantrsquos Conviction Is Overwhelming
Even if the issue were fully briefed a finding of plain error would be
improper because defendant cannot satisfy the third or fourth prongs of the
inquiry The third prong of the plain-error inquiry ndash ie the requirement that the
error ldquoaffects substantial rightsrdquo Arnold 486 F3d at 194 by ldquoaffect[ing] the
outcome of the district court proceedingsrdquo Mooneyham 473 F3d at 288 ndash is not
satisfied where the evidence against the defendant is overwhelming See
Mooneyham 473 F3d at 288 United States v Hines 398 F3d 713 718-719 (6th
Cir) cert denied 545 US 1134 (2005)
Likewise the fourth prong of the inquiry ndash ie the requirement that the
error be said to have ldquoseriously affect[ed] the fairness integrity or public
reputation of judicial proceedingsrdquo Arnold 486 F3d at 194 ndash also is not met when
other evidence is ldquooverwhelmingrdquo and ldquoessentially uncontrovertedrdquo See United
States v Cotton 535 US 625 632-633 (2002) Johnson v United States 520
US 461 469-470 (1997) Hines 398 F3d at 718-719 Indeed as both the
Supreme Court and this Court have recognized with regard to the fourth prong of
the inquiry in some cases ldquoit would be the reversal of a conviction which
would have th[e] effectrdquo of ldquoseriously affect[ing] the fairness integrity or public
-28shy
reputation of judicial proceedingsrdquo Johnson 520 US at 470 (internal quotations
omitted) (emphasis added) see also United States v McGhee 119 F3d 422 424shy
425 (6th Cir 1997) This is so because ldquo[r]eversal for error regardless of its effect
on the judgment encourages litigants to abuse the judicial process and bestirs the
public to ridicule itrdquo Johnson 520 US at 470 (citation and internal quotations
omitted) see also McGhee 119 F3d at 424-425
In view of the foregoing courts often cite the presence of overwhelming
evidence as the basis for concluding that a defendant has failed to meet both the
third and fourth prongs of the plain-error inquiry See Hines 398 F3d at 718-719
United States v Dedhia 134 F3d 802 809 (6th Cir) cert denied 523 US 1145
(1998) see also United States v Birk 453 F3d 893 898 (7th Cir 2006) United
States v Taylor 284 F3d 95 102 (1st Cir) cert denied 536 US 933 (2002)
This Court should follow that approach here as there is overwhelming evidence ndash
separate and apart from the challenged statements ndash to support defendantrsquos
conviction Specifically as explained more fully below testimony at trial
established that defendant (1) spoke openly to others during the weeks leading up
to the fire regarding his desire to force the Dosters from the neighborhood (2) was
the one who set the fire (3) confided to a friend afterward that he both set the fire
and performed the lawn job with the intent to drive the Dosters away because of
-29shy
their race and (4) told conflicting stories to the FBI during the course of its
investigation one of which included an admission that he was at least indirectly
involved in setting the fire
1 Defendantrsquos Statements Prior To The Fire
Two witnesses offered detailed accounts of conversations they had with
defendant prior to the date of the fire During these conversations defendant
expressed his desire to drive the Dosters from their home
Guy Wurts testified that in mid-July 2002 Defendant said something to the
effect of ldquoI got to get rid of these niggers Irsquoll find something to do I donrsquot know
what I got to get these niggers out [of] the neighborhoodrdquo (Wurts 417 Tr 208shy
209 Apx __) Wurts testified that defendant looked in the Dostersrsquo direction
when he made these comments and said the word ldquoniggerrdquo loud enough for the
Dosters ndash who were working in their yard at the time ndash to hear it (Wurts 417 Tr
202-203 209-210 Apx __) Wurts further testified that defendant ldquoseemed
seriousrdquo when he made these statements (Wurts 417 Tr 259 Apx __)
Debbie Daniely recounted similar statements by defendant Specifically
defendant told Daniely more than once that he was very upset about the Dosters
moving into the neighborhood saying something to the effect of ldquoniggers are
moving inrdquo and ldquo[w]e have to do something about itrdquo (Daniely 418 Tr 22-25
-30shy
Apx __) Defendant later admitted to the FBI that he made such a statement to
ldquo[t]his Court has lsquoroutinely concluded that such claims are best brought by a
defendant in a post-conviction proceeding under 28 USC sect 2255 so that the
-37shy
parties can develop an adequate record on the issuersquordquo Martinez 430 F3d at 338
(quoting United States v Brown 332 F3d 363 368 (6th Cir 2003)) ldquoThere is
however lsquoa narrow exceptionrsquo to this rule lsquowhen the existing record is adequate to
assess properly the merits of the claimrsquordquo United States v Hynes 467 F3d 951
969 (6th Cir 2006) (quoting United States v Franklin 415 F3d 537 555-556
(6th Cir 2005)) See also United States v Winkle 477 F3d 407 421 (6th Cir
2007) (ldquoThis Court typically will not review a claim of ineffective assistance on
direct appeal except in rare cases where the error is apparent from the existing
recordrdquo) (quoting United States v Lopez-Medina 461 F3d 724 737 (6th Cir
2006))
No basis exists for departing from the general rule against addressing
ineffective-assistance claims on direct appeal As this Court has noted ldquo[t]he trial
process contains a myriad of complex decisions that for strategic reasons are
sound when made but may appear unsound with the benefit of hindsightrdquo United
States v Davis 306 F3d 398 422 (6th Cir 2002) cert denied 537 US 1208
(2003) (quoting United States v Fortson 194 F3d 730 736 (6th Cir 1999))
Moreover ldquo[j]udicial scrutiny of counselrsquos performance must be highly
deferentialrdquo and ldquoa court must indulge a strong presumption that counselrsquos
conduct falls within the wide range of reasonable professional assistancerdquo
-38shy
Strickland v Washington 466 US 668 689 (1984) Thus to establish ineffective
assistance ldquothe defendant must overcome the presumption that under the
circumstances the challenged action lsquomight be considered sound trial strategyrsquordquo
Ibid (quoting Michel v Louisiana 350 US 91 101 (1955))
Here the decision by defendantrsquos retained trial counsel to elicit the
challenged statements during cross-examination of a government witness
undeniably constitutes an element of trial strategy that cannot be analyzed at this
stage of the proceedings In particular because this is a direct appeal there is no
evidence in the record regarding defense counselrsquos trial strategy This Court
repeatedly has refused to review ineffective-assistance claims under such
circumstances See eg Lopez-Medina 461 F3d at 737 (ldquoAbsent evidence
specifically addressing counselrsquos performance we cannot determine whether his
actions reflected a reasoned trial strategyrdquo) United States v Sullivan 431 F3d
976 986 (6th Cir 2005) (ldquoWithout an explanation from trial counsel as to why he
failed to call the alibi witness we have no basis to determine whether this decision
was the result of inadequate representation or reasonable trial strategyrdquo) United
States v Allison 59 F3d 43 47 (6th Cir) cert denied 516 US 1002 (1995)
(ldquo[T]he sparse record before this court does not reveal whether the attorneyrsquos
actions could be considered sound trial strategyrdquo) United States v Snow 48 F3d
-39shy
198 199 (6th Cir 1995) (ldquoThe record before this court simply is insufficient to
show whether the alleged wrongful acts could be considered sound trial
strategyrdquo) Thus defendantrsquos ineffective-assistance claim must be examined ndash if
at all ndash in a separate collateral proceeding brought pursuant to Section 2255
C The Evidence That Is Available In The Record Does Not Support A Finding Of Ineffective Assistance Of Counsel
As stated above the governmentrsquos position is that the current record is not
sufficient to permit this Court to address defendantrsquos ineffective-assistance claim
in this direct appeal However if the Court disagrees ndash or desires in the interest of
judicial economy to address defendantrsquos claim on direct appeal ndash it should reject
the claim because defendant fails to satisfy the second prong of the ineffective-
assistance inquiry11
11 The government does not concede that the first prong of the Strickland inquiry is satisfied in this case Rather as noted above it is not possible to resolve the issue at this point because the record does not indicate precisely what defendantrsquos trial counsel was thinking what his strategy was or why he elected to pursue certain lines of questioning In the event that defendant elects to bring a collateral challenge pursuant to Section 2255 the government reserves the right to address the first prong of Strickland inquiry and to further develop its argument as to the second prong The governmentrsquos decision not to do so in this brief is based on the incomplete nature of the record with regard to the Strickland inquiry and should not be construed as a waiver or forfeiture of any arguments relating to defendantrsquos ineffective-assistance claim
-40shy
1 Standard For Establishing Ineffective Assistance Of Counsel
To prove ineffective assistance of counsel under Strickland a defendant
first ldquomust demonstrate that counselrsquos performance fell lsquobelow the objective
standard of reasonablenessrsquordquo Ivory v Jackson 509 F3d 284 294 (6th Cir 2007)
cert denied 128 S Ct 1897 (2008) (quoting Strickland 466 US at 688)) ldquoThe
defendant must then demonstrate that lsquothere is a reasonable probability that but
for counselrsquos unprofessional errors the result of the proceeding would have been
different A reasonable probability is a probability sufficient to undermine the
confidence in the outcomersquordquo Ibid (quoting Strickland 466 US at 694)
Significantly this Court ldquoneed not decide whether defense counsel
performed deficiently if disposing of an ineffective-assistance claim on the ground
of lack of sufficient prejudice would be easierrdquo Hynes 467 F3d at 970 See also
Ivory 509 F3d at 294 (ldquo[A] court need not determine whether counselrsquos
performance was deficient before examining the prejudice suffered by the
defendant as a result of the alleged deficiencies If it is easier to dispose of
an ineffectiveness claim on the ground of lack of sufficient prejudice which we
expect will often be so that course should be followedrdquo) (quoting Strickland 466
US at 697)
-41shy
2 Defendant Is Unable To Demonstrate Sufficient Prejudice And Therefore Cannot Satisfy The Second Prong Of The Inquiry
ldquoTo show prejudice [defendant] must demonstrate that lsquothere is a
reasonable probability that but for counselrsquos unprofessional errors the result of
the proceeding would have been differentrsquordquo Harrison v Motley 478 F3d 750
756 (6th Cir) cert denied 128 S Ct 444 (2007) (quoting Strickland 466 US at
694)) As set forth above in Section IIC the evidence of defendantrsquos guilt is
overwhelming and the result therefore would not have been different absent the
challenged statements This Court repeatedly has determined that the second
prong of the Strickland inquiry is not met under such circumstances See eg
Harrison 478 F3d at 757 (defendant ldquofailed to show that his attorneysrsquo alleged
conflict of interest resulted in prejudicerdquo where ldquothe evidence admitted against
[defendant] at trial was lsquooverwhelmingrsquordquo) Hicks v Collins 384 F3d 204 215
(6th Cir 2004) cert denied 545 US 1155 (2005) (holding that defendant cannot
satisfy the second prong of Strickland where ldquothere was overwhelming evidence of
[defendantrsquos] guiltrdquo) Campbell v United States 364 F3d 727 736 (6th Cir
2004) cert denied 543 US 1119 (2005) (ldquoGiven the overwhelming evidence
establishing [defendantrsquos] guilt we believe that he would not have been able to
show that but for his attorneyrsquos failure to object to the prosecutorrsquos alleged
-42shy
misconduct the result would have been differentrdquo)
Accordingly even if this Court determines that the record is sufficient for it
to address defendantrsquos ineffective-assistance claim on direct appeal it should
reject this claim based on his failure to satisfy the second prong of the Strickland
inquiry
CONCLUSION
For the foregoing reasons this Court should affirm the judgment below
Respectfully submitted
GRACE CHUNG BECKER Acting Assistant Attorney General Civil Rights Division
DIANA K FLYNN DIRK C PHILLIPS Attorneys US Department of Justice Civil Rights Divisions Appellate Section Ben Franklin Station PO Box 14403 Washington DC 20044-4403 (202) 305-4876
CERTIFICATE OF COMPLIANCE
Pursuant to Federal Rule of Appellate Procedure 32(a)(7)(B) I hereby
certify that this brief is proportionally spaced 14-point Times New Roman font
Per WordPerfect 12 software the brief contains 9022 words excluding those
parts exempted by Federal Rule of Appellate Procedure 32(a)(7)(B)(iii)
DIRK C PHILLIPS Attorney
DATED June 18 2008
CERTIFICATE OF SERVICE
I hereby certify that on June 18 2008 a copy of the foregoing PROOF
BRIEF FOR THE UNITED STATES AS PLAINTIFF-APPELLEE was served by
first class mail postage prepaid on counsel of record at the following address
Joan E Morgan 2057 Orchard Lake Road Sylvan Lake MI 48320
DIRK C PHILLIPS Attorney
APPELLEErsquoS DESIGNATION OF APPENDIX CONTENTS
APPELLEErsquoS DESIGNATION OF APPENDIX CONTENTS
Appellee United States of America designates the following items to be
review by this Court when he elicited allegedly inadmissible testimony during
cross-examination of a government witness
2 Whether in the absence of invited error the district court committed
plain error by not acting sua sponte to prevent defendantrsquos trial counsel from
eliciting the challenged testimony
3 Whether the record is sufficient to permit this Court to address
defendantrsquos claim of ineffective assistance of counsel and if so whether the claim
has merit
STATEMENT OF THE CASE
On January 5 2006 a federal grand jury returned an indictment charging
defendant Wayland Mullins and a co-conspirator Michael Richardson with
conspiracy against rights in violation of 18 USC 241 (Count I) interference with
housing rights in violation of 42 USC 3631(a) and 18 USC 2 (Count II) use of
fire in the commission of a felony in violation of 18 USC 2 and 18 USC
844(h)(1) (Count III) and conspiracy to obstruct justice in violation of 18 USC
371 (Count IV) (R 1 at 1-8 Apx ___)1 Richardson pled guilty to all four
1 Citations to ldquoR rdquo refer to documents in the district court record Citations to ldquoR __rdquo refer to notations in the district court record for which there is no docket number Citations to ldquo Tr rdquo refer by date and page number to the trial transcript Citations to ldquoBr rdquo refer to Defendant-Appellantrsquos Proof
(continued)
-3shy
counts on September 21 2006 (R 92106 plea hearing) Defendant went to
trial on these charges in November 2006 but the jury was unable to reach a
verdict The district court declared a mistrial on November 17 2006 (R
111706 declaration of mistrial)
On December 14 2006 a federal grand jury returned a superseding
indictment charging defendant and another co-conspirator Ricky Cotton with the
same four counts described above Cotton pled guilty to Count I on April 12
2007 (R 41207 plea hearing) Defendant again proceeded to trial and on
April 20 2007 was convicted on all four counts (R 70 Apx __)
On August 28 2007 the district court sentenced defendant to 207 monthsrsquo
imprisonment and ordered him to pay $12400 in restitution (R 78 at 3-6 Apx
___) This appeal followed
STATEMENT OF THE FACTS
From the evidence presented at trial the jury reasonably could have found
the following facts which are set forth in the light most favorable to the
government
1(continued)
Brief On Appeal
-4shy
1 General Background
In 2002 Reginald Doster and his family purchased a home located at 5948
Ziegler Street in Taylor Michigan They made a down payment in February with
the understanding that the transaction would not close until July (Doster 417 Tr
125 138 Apx __) Between February 2002 and July 2002 the Dosters worked to
refurbish the property (Doster 417 Tr 125-126 Apx __) They finished this
process on or about July 28 2002 moved in during the latter part of October
2002 and lived there until approximately August 2005 (Doster 417 Tr 123
131-133 149-150 154 Apx __) Beginning before they moved in and continuing
throughout the time they lived on Ziegler Street the Dosters who are African-
American were the subject of racial slurs and racially-motivated actions by some
of their neighbors
2 Defendantrsquos Reaction To The Dostersrsquo Purchase Of The Ziegler Property
The Doster home was located across the street from the home in which
defendant grew up and in which his mother and other relatives still live (Doster
As such the Dostersrsquo purchase of and efforts to refurbish the house across
the street from the Mullins home did not go unnoticed by defendant or certain
other members of the neighborhood Indeed it was a topic of conversation among
those who were not happy about an African-American family moving into the
neighborhood (Daniely 418 Tr 17-18 Apx __)
During the period in which the Dosters were refurbishing the property
defendant made comments to friends regarding his desire to drive the Dosters from
the neighborhood One such incident occurred during the middle part of July
2002 (Wurts 417 Tr 208-209 Apx __) Defendant and a friend Guy Wurts
were standing in the back of Wurtsrsquo pickup truck which was parked in front of the
Mullins home (Wurts 417 Tr 202 Apx __) The Dosters were out working in
their yard at the time (Wurts 417 Tr 202-203 209 Apx __) Defendant said
something to the effect of ldquoI got to get rid of these niggers Irsquoll find something to
do I donrsquot know what I got to get these niggers out [of] the neighborhoodrdquo
(Wurts 417 Tr 209 Apx __)2 Defendant was looking in the Dostersrsquo direction
2 Similar descriptions of defendantrsquos statements appear elsewhere in Wurtsrsquo testimony (Wurts 417 Tr 201-202 209 260 Apx __)
-6shy
when he made these comments and said the word ldquoniggerrdquo loud enough for the
Dosters to hear it (Wurts 417 Tr 209-210 Apx __) Wurts testified that
defendant was a racist and that defendant ldquoseemed seriousrdquo when he made these
statements (Wurts 417 Tr 239-240 259-260 Apx __)
Debbie Daniely a neighbor and friend of the Mullins family (Daniely 418
Tr 6-8 Apx __) recounted similar statements by defendant Defendant told
Daniely more than once that he was very upset about the Dosters moving into the
neighborhood (Daniely 418 Tr 22 Apx __) She testified that defendant said
something to the effect of ldquoniggers are moving inrdquo and ldquo[w]e have to do something
about itrdquo (Daniely 418 Tr 23 Apx __)3 She believed he was serious when he
said such things (Daniely 418 Tr 25 Apx __)
3 The Fire
During the afternoon of Sunday July 28 2002 defendant along with Lee
Vanderlinden Don Flowers Chuck Proctor Michael Richardson and Ricky
Cotton4 were working in the yard of a neighbor Ann Hixon (Richardson 418
3 Defendant later admitted to the FBI that he made such a statement to Daniely (Rees 418 Tr 203 Apx __)
4 Lee Vanderlinden was the boyfriend of defendantrsquos mother and has lived in the Mullins home since at least 1996 or 1997 (Wurts 417 Tr 197-198 Apx __) Don Flowers was a friend of the Mullins family who often would socialize
(continued)
-7shy
Tr 56-58 Apx __)5 A group that included defendant Richardson Vanderlinden
Flowers and Cotton began making comments about ldquothe niggers next doorrdquo
(Richardson 418 Tr 58-59 Apx __) Richardson suggested burning a cross in
order to drive the Dosters away (Richardson 418 Tr 61 Apx __) Defendant
however went further suggesting they ldquo[t]orch the houserdquo and told the others to
come back later that night (Richardson 418 Tr 62-63 Apx __) Richardson
Vanderlinden Cotton and Flowers returned that evening and met defendant at the
Mullins home across the street from the Dosters (Richardson 418 Tr 63 Apx
__)6 They discussed ldquo[t]orchingrdquo the Doster home and all were in favor of doing
4(continued)
with Lee Vanderlinden at the Mullins home (Church 419 Tr 58-59 Apx __) Chuck Proctor worked with Lee Vanderlinden and often would hang around the Mullins home (Wurts 417 Tr 199-200 Apx __ Church 419 Tr 57-58 Apx __) Michael Richardson was a good friend of defendant who spent a lot of time at the Mullins home (Wurts 417 Tr 201 Apx __) Ricky Cotton lived nearby and also was a regular at the Mullins home (Wurts 417 Tr 200-201 Apx __) As noted above Richardson and Cotton both pled guilty in this case (R 92106 and 41207 plea hearings)
5 Ann Hixon was called by the defense and testified that this gathering could not have taken place on Sunday July 28 She testified that it occurred sometime during the Spring (she could not recall which year) and that it could not have been a Sunday because she always works on Sundays (Hixon 419 Tr 37shy38 Apx __)
Defendantrsquos aunt Casie Church lives in the Mullins home and was called to testify by defendant She stated that she was sitting on the front porch of the house during the late evening and early morning hours of July 28 and 29
(continued)
6
-8shy
so (Richardson 418 Tr 63 Apx __) Each of them encouraged defendant by
ldquo[e]gging him onrdquo and by ldquo[d]aringrdquo and ldquo[i]ncitingrdquo him to do so (Richardson
418 Tr 64 Apx __)
Defendant took a can of gasoline from the garage of the Mullins home and
went to the back of the Doster home (Richardson 418 Tr 64-65 Apx __)
Richardson Cotton Flowers and Vanderlinden served as lookouts with
Richardson following defendant to the Doster home and the other three remaining
across the street (Richardson 418 Tr 64-65 Apx __) Upon reaching the back
of the Doster home defendant either pried open or broke a window and poured
gasoline inside the house and on the windowsill (Richardson 418 Tr 65 111shy
114 Apx __)7 He then started the fire by holding a lighter up to the windowsill
and blowing until it ignited (Richardson 418 Tr 113 Apx __) Once the fire
was lit defendant and Richardson ran back across the street to join the others
where they celebrated and congratulated defendant (Richardson 418 Tr 65-66
6(continued)
(Church 419 Tr 45 Apx __) She testified that there was no one near the garage of the Mullins home during this time (Church 419 Tr 45 Apx __) But she stated that she did see someone named Mike sometime between 10 pm and 3 am (Church 419 Tr 45-46 Apx __)
7 Richardsonrsquos testimony indicates that it may have been a mixture of oil and gasoline (Richardson 418 Tr 65 Apx __)
-9shy
114-115 Apx __) Richardson testified that defendant set the fire because of the
Dostersrsquo race (Richardson 418 Tr 82 Apx __)
The Dosters had not yet moved into the Ziegler property and therefore were
not home at the time of the fire They had spent Sunday July 28 painting the
Ziegler property and left sometime between 7 pm and 8 pm (Doster 417 Tr
129 167-168 Apx __) Reginald Doster discovered there had been a fire when
he along with his wife and ten-year-old daughter returned to the home between 7
am and 9 am the next morning by which time the fire had burned out (Doster
doctrine recognizes that a court cannot be asked by counsel to take a step in a case
and later be convicted of error because it has complied with such requestrdquo)
(citation and internal quotations omitted) ldquoThis doctrine is a branch of the
doctrine of waiver by which courts prevent a party from inducing an erroneous
ruling and later seeking to profit from the legal consequences by having the
verdict vacatedrdquo Barrow 118 F3d at 490-491
Some courts have held that the existence of invited error forecloses any
-20shy
review ndash even for plain error See eg United States v Baker 432 F3d 1189
1216 (11th Cir 2005) cert denied 547 US 1085 (2006) (ldquoIt is a cardinal rule of
appellate review that a party may not challenge as error a ruling or other trial
proceeding invited by that party Where invited error exists it precludes a
court from invoking the plain error rule and reversingrdquo) United States v Fulford
980 F2d 1110 1116 (7th Cir 1992) (ldquoIt is well-settled that where error is invited
not even plain error permits reversalrdquo) This Court however has recognized an
exception holding that ldquo[i]nvited error does not foreclose relief when the
interests of justice demand otherwiserdquo Barrow 118 F3d at 491 In this Circuit
the question ldquo[w]hether the circumstances of a particular case justify deviation
from the normal rule of waiver under this doctrine is left largely to the discretion
of the appellate courtrdquo Ibid Nevertheless ldquo[u]nder the invited error doctrine an
error introduced by the complaining party will cause reversal only in the most
exceptional situationrdquo United States v Tandon 111 F3d 482 489 (6th Cir
1997) (citation and internal quotations omitted)
C Any Error By The District Court In Permitting The Challenged Statements Was Invited Error And Therefore Should Not Be Reviewed By This Court
Here all of the challenged statements were elicited by defendantrsquos retained
trial counsel Br 15-24 This plainly constitutes invited error See United States
-21shy
v Parikh 858 F2d 688 695 (11th Cir 1988) (ldquoWe hold that the admission of out
of court statements by a government witness when responding to an inquiry by
defense counsel creates lsquoinvited errorrsquordquo) See also Baker 432 F3d at 1215-1216
(defendant ldquocannot now complain about the district courtrsquos errorrdquo where his
counsel ldquoinvited the errorrdquo by eliciting hearsay during cross-examination) United
States v Neal 78 F3d 901 904 (4th Cir 1996) (defendant ldquoinvited the errorrdquo and
it therefore ldquoprovides no basis for reversalrdquo where ldquo[a]t trial [defendant] did not
object to any of the statements he now challengesrdquo and ldquomost were elicited by his
own attorney from a government witness during cross-examinationrdquo) United
States v Reyes-Alvarado 963 F2d 1184 1187 (9th Cir 1992) cert denied 506
US 890 (1992) (finding invited error and refusing to reverse where ldquoappellantrsquos
counsel solicited the testimony which he now claims should have been excludedrdquo
and ldquodid not seek to strike this testimony at the time it was givenrdquo)9
As a threshold matter it bears noting that defendant fails to acknowledge
the existence of invited error and makes no argument as to why ldquothe interests of
justicerdquo Barrow 118 F3d at 491 require this Court to refrain from applying the
invited-error doctrine Accordingly defendant has waived any right to invoke the
9 This Court has reached a similar conclusion albeit in an unpublished decision See United States v Ali 38 Fed Appx 220 224 (6th Cir Mar 26 2002) (unpublished)
-22shy
interests-of-justice exception recognized by this Court See United States v
Samour 199 F3d 821 822 n1 (6th Cir 1999) (defendant ldquowaived his right to
argue the applicability of [favorable precedent] by failing to raise the issue on
appealrdquo)
Even if not waived however the interests of justice do not require this
Court to depart from the general rule that relief is foreclosed by invited error The
challenged statements were not the result of mere oversight or an isolated error by
defendantrsquos trial counsel Rather this appears to be a classic example of trial
strategy gone awry ndash not a situation in which failure to reverse contravenes the
interests of justice Indeed in this case the interests of justice weigh in favor of
invoking the invited-error doctrine as defendant presumably sought to benefit
from eliciting the challenged statements and thus should not now be heard to
argue their inadmissibility simply because his strategy failed See Reyes-
Alvarado 963 F2d at 1187 (ldquoFrom the transcript it appears that counsel thought
his pursuit of this line of questioning might benefit his client His tactics
backfired and his client was convicted A defendant cannot have it both
ways This was invited error and therefore not grounds for reversalrdquo)
Moreover the governmentrsquos trial counsel showed an abundance of caution
by specifically raising the issue and asking whether it should be discussed at
-23shy
sidebar10 This too weighs against a finding that the interests of justice require
reversal See Neal 78 F3d at 904 (ldquoAt one point the prosecutor even tried to
warn [defendantrsquos] attorney about pursuing a line of questioning relating to the
defendantrsquos prior conduct but [defendantrsquos] attorney persisted Under these
circumstances [defendant] cannot complain of error which he himself has
invitedrdquo) (citation and internal quotations omitted)
Simply put this case precisely illustrates both the purpose behind the
10 The following exchange occurred when defense counsel elicited statements from the witness regarding what Ricky Cotton told the government
[Defense Counsel] Just tell us what Ricky Cotton said and let me -shytell us what obviously is hearsay Irsquoll sit down Tell us what Ricky Cotton -shy
[Government Counsel] Your Honor should we have a sidebar on this
[The Court] What for
[Government Counsel] Irsquom not sure to figure out where we are
[Defense Counsel] This is where we are what Ricky Cotton said
[The Court] Are you objecting
[Government Counsel] If he doesnrsquot have any objection to the witness saying what Ricky Cotton said thatrsquos fine
[Defense Counsel] Letrsquos go Tell us what Ricky Cotton said
(418 Tr 173-174 Apx __)
-24shy
invited-error doctrine and the need to enforce it strictly Defendantrsquos appeal does
not challenge any action by the government Nor does he take issue with the
district courtrsquos instructions to the jury the sufficiency of the evidence to support
his conviction or the reasonableness of his sentence He also does not contend the
district court improperly ruled on any objection made by his trial counsel Rather
his arguments on appeal arise solely from the actions of his own retained trial
counsel Such claims must be rejected on their face as a contrary rule would
create perverse incentives for defendants to invite some small amount of error in
every trial so as to create grounds for appeal Accordingly this Court should
apply the invited-error doctrine and affirm the judgment below without reaching
the question whether plain error exists
II
THE DISTRICT COURT DID NOT COMMIT PLAIN ERROR IN FAILING TO SUA SPONTE PREVENT DEFENDANTrsquoS TRIAL COUNSEL FROM
ELICITING THE CHALLENGED TESTIMONY
As noted above in Section IA if this Court determines that the invited-
error doctrine does not apply it should review admission of the challenged
statements for plain error United States v Namey 364 F3d 843 846 (6th Cir
2004)
-25shy
A The Plain-Error Doctrine
ldquoThe plain error doctrine mandates reversal only in exceptional
circumstances and only where the error is so plain that the trial judge and
prosecutor were derelict in countenancing itrdquo United States v Gardiner 463 F3d
445 459 (6th Cir 2006) (quoting United States v Carroll 26 F3d 1380 1383
(6th Cir 1994)) It ldquois to be used sparingly only in exceptional circumstances
and solely to avoid a miscarriage of justicerdquo United States v Phillips 516 F3d
479 487 (6th Cir 2008) (quoting United States v Cox 957 F2d 264 267 (6th
Cir 1992))
ldquoTo show plain error a defendant must establish the following (1) error
(2) that is plain and (3) that affects substantial rights If these three conditions are
met an appellate court may then exercise its discretion to notice a forfeited error
but only if (4) the error seriously affects the fairness integrity or public reputation
of judicial proceedingsrdquo United States v Arnold 486 F3d 177 194 (6th Cir
2007) cert denied 128 S Ct 871 (2008) (citation and internal quotations
omitted) ldquoThe phrase lsquoaffects substantial rightsrsquo lsquomeans prejudicial It must have
affected the outcome of the district court proceedingsrsquordquo United States v
(ldquo[I]ssues adverted to in a perfunctory manner unaccompanied by some effort at
developed argumentation are deemed waivedrdquo) (quoting McPherson v Kelsey
125 F3d 989 995-996 (6th Cir 1997))
-27shy
C The Third And Fourth Prongs Of The Plain-Error Doctrine Are Not Satisfied In This Case Because Other Evidence Supporting Defendantrsquos Conviction Is Overwhelming
Even if the issue were fully briefed a finding of plain error would be
improper because defendant cannot satisfy the third or fourth prongs of the
inquiry The third prong of the plain-error inquiry ndash ie the requirement that the
error ldquoaffects substantial rightsrdquo Arnold 486 F3d at 194 by ldquoaffect[ing] the
outcome of the district court proceedingsrdquo Mooneyham 473 F3d at 288 ndash is not
satisfied where the evidence against the defendant is overwhelming See
Mooneyham 473 F3d at 288 United States v Hines 398 F3d 713 718-719 (6th
Cir) cert denied 545 US 1134 (2005)
Likewise the fourth prong of the inquiry ndash ie the requirement that the
error be said to have ldquoseriously affect[ed] the fairness integrity or public
reputation of judicial proceedingsrdquo Arnold 486 F3d at 194 ndash also is not met when
other evidence is ldquooverwhelmingrdquo and ldquoessentially uncontrovertedrdquo See United
States v Cotton 535 US 625 632-633 (2002) Johnson v United States 520
US 461 469-470 (1997) Hines 398 F3d at 718-719 Indeed as both the
Supreme Court and this Court have recognized with regard to the fourth prong of
the inquiry in some cases ldquoit would be the reversal of a conviction which
would have th[e] effectrdquo of ldquoseriously affect[ing] the fairness integrity or public
-28shy
reputation of judicial proceedingsrdquo Johnson 520 US at 470 (internal quotations
omitted) (emphasis added) see also United States v McGhee 119 F3d 422 424shy
425 (6th Cir 1997) This is so because ldquo[r]eversal for error regardless of its effect
on the judgment encourages litigants to abuse the judicial process and bestirs the
public to ridicule itrdquo Johnson 520 US at 470 (citation and internal quotations
omitted) see also McGhee 119 F3d at 424-425
In view of the foregoing courts often cite the presence of overwhelming
evidence as the basis for concluding that a defendant has failed to meet both the
third and fourth prongs of the plain-error inquiry See Hines 398 F3d at 718-719
United States v Dedhia 134 F3d 802 809 (6th Cir) cert denied 523 US 1145
(1998) see also United States v Birk 453 F3d 893 898 (7th Cir 2006) United
States v Taylor 284 F3d 95 102 (1st Cir) cert denied 536 US 933 (2002)
This Court should follow that approach here as there is overwhelming evidence ndash
separate and apart from the challenged statements ndash to support defendantrsquos
conviction Specifically as explained more fully below testimony at trial
established that defendant (1) spoke openly to others during the weeks leading up
to the fire regarding his desire to force the Dosters from the neighborhood (2) was
the one who set the fire (3) confided to a friend afterward that he both set the fire
and performed the lawn job with the intent to drive the Dosters away because of
-29shy
their race and (4) told conflicting stories to the FBI during the course of its
investigation one of which included an admission that he was at least indirectly
involved in setting the fire
1 Defendantrsquos Statements Prior To The Fire
Two witnesses offered detailed accounts of conversations they had with
defendant prior to the date of the fire During these conversations defendant
expressed his desire to drive the Dosters from their home
Guy Wurts testified that in mid-July 2002 Defendant said something to the
effect of ldquoI got to get rid of these niggers Irsquoll find something to do I donrsquot know
what I got to get these niggers out [of] the neighborhoodrdquo (Wurts 417 Tr 208shy
209 Apx __) Wurts testified that defendant looked in the Dostersrsquo direction
when he made these comments and said the word ldquoniggerrdquo loud enough for the
Dosters ndash who were working in their yard at the time ndash to hear it (Wurts 417 Tr
202-203 209-210 Apx __) Wurts further testified that defendant ldquoseemed
seriousrdquo when he made these statements (Wurts 417 Tr 259 Apx __)
Debbie Daniely recounted similar statements by defendant Specifically
defendant told Daniely more than once that he was very upset about the Dosters
moving into the neighborhood saying something to the effect of ldquoniggers are
moving inrdquo and ldquo[w]e have to do something about itrdquo (Daniely 418 Tr 22-25
-30shy
Apx __) Defendant later admitted to the FBI that he made such a statement to
ldquo[t]his Court has lsquoroutinely concluded that such claims are best brought by a
defendant in a post-conviction proceeding under 28 USC sect 2255 so that the
-37shy
parties can develop an adequate record on the issuersquordquo Martinez 430 F3d at 338
(quoting United States v Brown 332 F3d 363 368 (6th Cir 2003)) ldquoThere is
however lsquoa narrow exceptionrsquo to this rule lsquowhen the existing record is adequate to
assess properly the merits of the claimrsquordquo United States v Hynes 467 F3d 951
969 (6th Cir 2006) (quoting United States v Franklin 415 F3d 537 555-556
(6th Cir 2005)) See also United States v Winkle 477 F3d 407 421 (6th Cir
2007) (ldquoThis Court typically will not review a claim of ineffective assistance on
direct appeal except in rare cases where the error is apparent from the existing
recordrdquo) (quoting United States v Lopez-Medina 461 F3d 724 737 (6th Cir
2006))
No basis exists for departing from the general rule against addressing
ineffective-assistance claims on direct appeal As this Court has noted ldquo[t]he trial
process contains a myriad of complex decisions that for strategic reasons are
sound when made but may appear unsound with the benefit of hindsightrdquo United
States v Davis 306 F3d 398 422 (6th Cir 2002) cert denied 537 US 1208
(2003) (quoting United States v Fortson 194 F3d 730 736 (6th Cir 1999))
Moreover ldquo[j]udicial scrutiny of counselrsquos performance must be highly
deferentialrdquo and ldquoa court must indulge a strong presumption that counselrsquos
conduct falls within the wide range of reasonable professional assistancerdquo
-38shy
Strickland v Washington 466 US 668 689 (1984) Thus to establish ineffective
assistance ldquothe defendant must overcome the presumption that under the
circumstances the challenged action lsquomight be considered sound trial strategyrsquordquo
Ibid (quoting Michel v Louisiana 350 US 91 101 (1955))
Here the decision by defendantrsquos retained trial counsel to elicit the
challenged statements during cross-examination of a government witness
undeniably constitutes an element of trial strategy that cannot be analyzed at this
stage of the proceedings In particular because this is a direct appeal there is no
evidence in the record regarding defense counselrsquos trial strategy This Court
repeatedly has refused to review ineffective-assistance claims under such
circumstances See eg Lopez-Medina 461 F3d at 737 (ldquoAbsent evidence
specifically addressing counselrsquos performance we cannot determine whether his
actions reflected a reasoned trial strategyrdquo) United States v Sullivan 431 F3d
976 986 (6th Cir 2005) (ldquoWithout an explanation from trial counsel as to why he
failed to call the alibi witness we have no basis to determine whether this decision
was the result of inadequate representation or reasonable trial strategyrdquo) United
States v Allison 59 F3d 43 47 (6th Cir) cert denied 516 US 1002 (1995)
(ldquo[T]he sparse record before this court does not reveal whether the attorneyrsquos
actions could be considered sound trial strategyrdquo) United States v Snow 48 F3d
-39shy
198 199 (6th Cir 1995) (ldquoThe record before this court simply is insufficient to
show whether the alleged wrongful acts could be considered sound trial
strategyrdquo) Thus defendantrsquos ineffective-assistance claim must be examined ndash if
at all ndash in a separate collateral proceeding brought pursuant to Section 2255
C The Evidence That Is Available In The Record Does Not Support A Finding Of Ineffective Assistance Of Counsel
As stated above the governmentrsquos position is that the current record is not
sufficient to permit this Court to address defendantrsquos ineffective-assistance claim
in this direct appeal However if the Court disagrees ndash or desires in the interest of
judicial economy to address defendantrsquos claim on direct appeal ndash it should reject
the claim because defendant fails to satisfy the second prong of the ineffective-
assistance inquiry11
11 The government does not concede that the first prong of the Strickland inquiry is satisfied in this case Rather as noted above it is not possible to resolve the issue at this point because the record does not indicate precisely what defendantrsquos trial counsel was thinking what his strategy was or why he elected to pursue certain lines of questioning In the event that defendant elects to bring a collateral challenge pursuant to Section 2255 the government reserves the right to address the first prong of Strickland inquiry and to further develop its argument as to the second prong The governmentrsquos decision not to do so in this brief is based on the incomplete nature of the record with regard to the Strickland inquiry and should not be construed as a waiver or forfeiture of any arguments relating to defendantrsquos ineffective-assistance claim
-40shy
1 Standard For Establishing Ineffective Assistance Of Counsel
To prove ineffective assistance of counsel under Strickland a defendant
first ldquomust demonstrate that counselrsquos performance fell lsquobelow the objective
standard of reasonablenessrsquordquo Ivory v Jackson 509 F3d 284 294 (6th Cir 2007)
cert denied 128 S Ct 1897 (2008) (quoting Strickland 466 US at 688)) ldquoThe
defendant must then demonstrate that lsquothere is a reasonable probability that but
for counselrsquos unprofessional errors the result of the proceeding would have been
different A reasonable probability is a probability sufficient to undermine the
confidence in the outcomersquordquo Ibid (quoting Strickland 466 US at 694)
Significantly this Court ldquoneed not decide whether defense counsel
performed deficiently if disposing of an ineffective-assistance claim on the ground
of lack of sufficient prejudice would be easierrdquo Hynes 467 F3d at 970 See also
Ivory 509 F3d at 294 (ldquo[A] court need not determine whether counselrsquos
performance was deficient before examining the prejudice suffered by the
defendant as a result of the alleged deficiencies If it is easier to dispose of
an ineffectiveness claim on the ground of lack of sufficient prejudice which we
expect will often be so that course should be followedrdquo) (quoting Strickland 466
US at 697)
-41shy
2 Defendant Is Unable To Demonstrate Sufficient Prejudice And Therefore Cannot Satisfy The Second Prong Of The Inquiry
ldquoTo show prejudice [defendant] must demonstrate that lsquothere is a
reasonable probability that but for counselrsquos unprofessional errors the result of
the proceeding would have been differentrsquordquo Harrison v Motley 478 F3d 750
756 (6th Cir) cert denied 128 S Ct 444 (2007) (quoting Strickland 466 US at
694)) As set forth above in Section IIC the evidence of defendantrsquos guilt is
overwhelming and the result therefore would not have been different absent the
challenged statements This Court repeatedly has determined that the second
prong of the Strickland inquiry is not met under such circumstances See eg
Harrison 478 F3d at 757 (defendant ldquofailed to show that his attorneysrsquo alleged
conflict of interest resulted in prejudicerdquo where ldquothe evidence admitted against
[defendant] at trial was lsquooverwhelmingrsquordquo) Hicks v Collins 384 F3d 204 215
(6th Cir 2004) cert denied 545 US 1155 (2005) (holding that defendant cannot
satisfy the second prong of Strickland where ldquothere was overwhelming evidence of
[defendantrsquos] guiltrdquo) Campbell v United States 364 F3d 727 736 (6th Cir
2004) cert denied 543 US 1119 (2005) (ldquoGiven the overwhelming evidence
establishing [defendantrsquos] guilt we believe that he would not have been able to
show that but for his attorneyrsquos failure to object to the prosecutorrsquos alleged
-42shy
misconduct the result would have been differentrdquo)
Accordingly even if this Court determines that the record is sufficient for it
to address defendantrsquos ineffective-assistance claim on direct appeal it should
reject this claim based on his failure to satisfy the second prong of the Strickland
inquiry
CONCLUSION
For the foregoing reasons this Court should affirm the judgment below
Respectfully submitted
GRACE CHUNG BECKER Acting Assistant Attorney General Civil Rights Division
DIANA K FLYNN DIRK C PHILLIPS Attorneys US Department of Justice Civil Rights Divisions Appellate Section Ben Franklin Station PO Box 14403 Washington DC 20044-4403 (202) 305-4876
CERTIFICATE OF COMPLIANCE
Pursuant to Federal Rule of Appellate Procedure 32(a)(7)(B) I hereby
certify that this brief is proportionally spaced 14-point Times New Roman font
Per WordPerfect 12 software the brief contains 9022 words excluding those
parts exempted by Federal Rule of Appellate Procedure 32(a)(7)(B)(iii)
DIRK C PHILLIPS Attorney
DATED June 18 2008
CERTIFICATE OF SERVICE
I hereby certify that on June 18 2008 a copy of the foregoing PROOF
BRIEF FOR THE UNITED STATES AS PLAINTIFF-APPELLEE was served by
first class mail postage prepaid on counsel of record at the following address
Joan E Morgan 2057 Orchard Lake Road Sylvan Lake MI 48320
DIRK C PHILLIPS Attorney
APPELLEErsquoS DESIGNATION OF APPENDIX CONTENTS
APPELLEErsquoS DESIGNATION OF APPENDIX CONTENTS
Appellee United States of America designates the following items to be
review by this Court when he elicited allegedly inadmissible testimony during
cross-examination of a government witness
2 Whether in the absence of invited error the district court committed
plain error by not acting sua sponte to prevent defendantrsquos trial counsel from
eliciting the challenged testimony
3 Whether the record is sufficient to permit this Court to address
defendantrsquos claim of ineffective assistance of counsel and if so whether the claim
has merit
STATEMENT OF THE CASE
On January 5 2006 a federal grand jury returned an indictment charging
defendant Wayland Mullins and a co-conspirator Michael Richardson with
conspiracy against rights in violation of 18 USC 241 (Count I) interference with
housing rights in violation of 42 USC 3631(a) and 18 USC 2 (Count II) use of
fire in the commission of a felony in violation of 18 USC 2 and 18 USC
844(h)(1) (Count III) and conspiracy to obstruct justice in violation of 18 USC
371 (Count IV) (R 1 at 1-8 Apx ___)1 Richardson pled guilty to all four
1 Citations to ldquoR rdquo refer to documents in the district court record Citations to ldquoR __rdquo refer to notations in the district court record for which there is no docket number Citations to ldquo Tr rdquo refer by date and page number to the trial transcript Citations to ldquoBr rdquo refer to Defendant-Appellantrsquos Proof
(continued)
-3shy
counts on September 21 2006 (R 92106 plea hearing) Defendant went to
trial on these charges in November 2006 but the jury was unable to reach a
verdict The district court declared a mistrial on November 17 2006 (R
111706 declaration of mistrial)
On December 14 2006 a federal grand jury returned a superseding
indictment charging defendant and another co-conspirator Ricky Cotton with the
same four counts described above Cotton pled guilty to Count I on April 12
2007 (R 41207 plea hearing) Defendant again proceeded to trial and on
April 20 2007 was convicted on all four counts (R 70 Apx __)
On August 28 2007 the district court sentenced defendant to 207 monthsrsquo
imprisonment and ordered him to pay $12400 in restitution (R 78 at 3-6 Apx
___) This appeal followed
STATEMENT OF THE FACTS
From the evidence presented at trial the jury reasonably could have found
the following facts which are set forth in the light most favorable to the
government
1(continued)
Brief On Appeal
-4shy
1 General Background
In 2002 Reginald Doster and his family purchased a home located at 5948
Ziegler Street in Taylor Michigan They made a down payment in February with
the understanding that the transaction would not close until July (Doster 417 Tr
125 138 Apx __) Between February 2002 and July 2002 the Dosters worked to
refurbish the property (Doster 417 Tr 125-126 Apx __) They finished this
process on or about July 28 2002 moved in during the latter part of October
2002 and lived there until approximately August 2005 (Doster 417 Tr 123
131-133 149-150 154 Apx __) Beginning before they moved in and continuing
throughout the time they lived on Ziegler Street the Dosters who are African-
American were the subject of racial slurs and racially-motivated actions by some
of their neighbors
2 Defendantrsquos Reaction To The Dostersrsquo Purchase Of The Ziegler Property
The Doster home was located across the street from the home in which
defendant grew up and in which his mother and other relatives still live (Doster
As such the Dostersrsquo purchase of and efforts to refurbish the house across
the street from the Mullins home did not go unnoticed by defendant or certain
other members of the neighborhood Indeed it was a topic of conversation among
those who were not happy about an African-American family moving into the
neighborhood (Daniely 418 Tr 17-18 Apx __)
During the period in which the Dosters were refurbishing the property
defendant made comments to friends regarding his desire to drive the Dosters from
the neighborhood One such incident occurred during the middle part of July
2002 (Wurts 417 Tr 208-209 Apx __) Defendant and a friend Guy Wurts
were standing in the back of Wurtsrsquo pickup truck which was parked in front of the
Mullins home (Wurts 417 Tr 202 Apx __) The Dosters were out working in
their yard at the time (Wurts 417 Tr 202-203 209 Apx __) Defendant said
something to the effect of ldquoI got to get rid of these niggers Irsquoll find something to
do I donrsquot know what I got to get these niggers out [of] the neighborhoodrdquo
(Wurts 417 Tr 209 Apx __)2 Defendant was looking in the Dostersrsquo direction
2 Similar descriptions of defendantrsquos statements appear elsewhere in Wurtsrsquo testimony (Wurts 417 Tr 201-202 209 260 Apx __)
-6shy
when he made these comments and said the word ldquoniggerrdquo loud enough for the
Dosters to hear it (Wurts 417 Tr 209-210 Apx __) Wurts testified that
defendant was a racist and that defendant ldquoseemed seriousrdquo when he made these
statements (Wurts 417 Tr 239-240 259-260 Apx __)
Debbie Daniely a neighbor and friend of the Mullins family (Daniely 418
Tr 6-8 Apx __) recounted similar statements by defendant Defendant told
Daniely more than once that he was very upset about the Dosters moving into the
neighborhood (Daniely 418 Tr 22 Apx __) She testified that defendant said
something to the effect of ldquoniggers are moving inrdquo and ldquo[w]e have to do something
about itrdquo (Daniely 418 Tr 23 Apx __)3 She believed he was serious when he
said such things (Daniely 418 Tr 25 Apx __)
3 The Fire
During the afternoon of Sunday July 28 2002 defendant along with Lee
Vanderlinden Don Flowers Chuck Proctor Michael Richardson and Ricky
Cotton4 were working in the yard of a neighbor Ann Hixon (Richardson 418
3 Defendant later admitted to the FBI that he made such a statement to Daniely (Rees 418 Tr 203 Apx __)
4 Lee Vanderlinden was the boyfriend of defendantrsquos mother and has lived in the Mullins home since at least 1996 or 1997 (Wurts 417 Tr 197-198 Apx __) Don Flowers was a friend of the Mullins family who often would socialize
(continued)
-7shy
Tr 56-58 Apx __)5 A group that included defendant Richardson Vanderlinden
Flowers and Cotton began making comments about ldquothe niggers next doorrdquo
(Richardson 418 Tr 58-59 Apx __) Richardson suggested burning a cross in
order to drive the Dosters away (Richardson 418 Tr 61 Apx __) Defendant
however went further suggesting they ldquo[t]orch the houserdquo and told the others to
come back later that night (Richardson 418 Tr 62-63 Apx __) Richardson
Vanderlinden Cotton and Flowers returned that evening and met defendant at the
Mullins home across the street from the Dosters (Richardson 418 Tr 63 Apx
__)6 They discussed ldquo[t]orchingrdquo the Doster home and all were in favor of doing
4(continued)
with Lee Vanderlinden at the Mullins home (Church 419 Tr 58-59 Apx __) Chuck Proctor worked with Lee Vanderlinden and often would hang around the Mullins home (Wurts 417 Tr 199-200 Apx __ Church 419 Tr 57-58 Apx __) Michael Richardson was a good friend of defendant who spent a lot of time at the Mullins home (Wurts 417 Tr 201 Apx __) Ricky Cotton lived nearby and also was a regular at the Mullins home (Wurts 417 Tr 200-201 Apx __) As noted above Richardson and Cotton both pled guilty in this case (R 92106 and 41207 plea hearings)
5 Ann Hixon was called by the defense and testified that this gathering could not have taken place on Sunday July 28 She testified that it occurred sometime during the Spring (she could not recall which year) and that it could not have been a Sunday because she always works on Sundays (Hixon 419 Tr 37shy38 Apx __)
Defendantrsquos aunt Casie Church lives in the Mullins home and was called to testify by defendant She stated that she was sitting on the front porch of the house during the late evening and early morning hours of July 28 and 29
(continued)
6
-8shy
so (Richardson 418 Tr 63 Apx __) Each of them encouraged defendant by
ldquo[e]gging him onrdquo and by ldquo[d]aringrdquo and ldquo[i]ncitingrdquo him to do so (Richardson
418 Tr 64 Apx __)
Defendant took a can of gasoline from the garage of the Mullins home and
went to the back of the Doster home (Richardson 418 Tr 64-65 Apx __)
Richardson Cotton Flowers and Vanderlinden served as lookouts with
Richardson following defendant to the Doster home and the other three remaining
across the street (Richardson 418 Tr 64-65 Apx __) Upon reaching the back
of the Doster home defendant either pried open or broke a window and poured
gasoline inside the house and on the windowsill (Richardson 418 Tr 65 111shy
114 Apx __)7 He then started the fire by holding a lighter up to the windowsill
and blowing until it ignited (Richardson 418 Tr 113 Apx __) Once the fire
was lit defendant and Richardson ran back across the street to join the others
where they celebrated and congratulated defendant (Richardson 418 Tr 65-66
6(continued)
(Church 419 Tr 45 Apx __) She testified that there was no one near the garage of the Mullins home during this time (Church 419 Tr 45 Apx __) But she stated that she did see someone named Mike sometime between 10 pm and 3 am (Church 419 Tr 45-46 Apx __)
7 Richardsonrsquos testimony indicates that it may have been a mixture of oil and gasoline (Richardson 418 Tr 65 Apx __)
-9shy
114-115 Apx __) Richardson testified that defendant set the fire because of the
Dostersrsquo race (Richardson 418 Tr 82 Apx __)
The Dosters had not yet moved into the Ziegler property and therefore were
not home at the time of the fire They had spent Sunday July 28 painting the
Ziegler property and left sometime between 7 pm and 8 pm (Doster 417 Tr
129 167-168 Apx __) Reginald Doster discovered there had been a fire when
he along with his wife and ten-year-old daughter returned to the home between 7
am and 9 am the next morning by which time the fire had burned out (Doster
doctrine recognizes that a court cannot be asked by counsel to take a step in a case
and later be convicted of error because it has complied with such requestrdquo)
(citation and internal quotations omitted) ldquoThis doctrine is a branch of the
doctrine of waiver by which courts prevent a party from inducing an erroneous
ruling and later seeking to profit from the legal consequences by having the
verdict vacatedrdquo Barrow 118 F3d at 490-491
Some courts have held that the existence of invited error forecloses any
-20shy
review ndash even for plain error See eg United States v Baker 432 F3d 1189
1216 (11th Cir 2005) cert denied 547 US 1085 (2006) (ldquoIt is a cardinal rule of
appellate review that a party may not challenge as error a ruling or other trial
proceeding invited by that party Where invited error exists it precludes a
court from invoking the plain error rule and reversingrdquo) United States v Fulford
980 F2d 1110 1116 (7th Cir 1992) (ldquoIt is well-settled that where error is invited
not even plain error permits reversalrdquo) This Court however has recognized an
exception holding that ldquo[i]nvited error does not foreclose relief when the
interests of justice demand otherwiserdquo Barrow 118 F3d at 491 In this Circuit
the question ldquo[w]hether the circumstances of a particular case justify deviation
from the normal rule of waiver under this doctrine is left largely to the discretion
of the appellate courtrdquo Ibid Nevertheless ldquo[u]nder the invited error doctrine an
error introduced by the complaining party will cause reversal only in the most
exceptional situationrdquo United States v Tandon 111 F3d 482 489 (6th Cir
1997) (citation and internal quotations omitted)
C Any Error By The District Court In Permitting The Challenged Statements Was Invited Error And Therefore Should Not Be Reviewed By This Court
Here all of the challenged statements were elicited by defendantrsquos retained
trial counsel Br 15-24 This plainly constitutes invited error See United States
-21shy
v Parikh 858 F2d 688 695 (11th Cir 1988) (ldquoWe hold that the admission of out
of court statements by a government witness when responding to an inquiry by
defense counsel creates lsquoinvited errorrsquordquo) See also Baker 432 F3d at 1215-1216
(defendant ldquocannot now complain about the district courtrsquos errorrdquo where his
counsel ldquoinvited the errorrdquo by eliciting hearsay during cross-examination) United
States v Neal 78 F3d 901 904 (4th Cir 1996) (defendant ldquoinvited the errorrdquo and
it therefore ldquoprovides no basis for reversalrdquo where ldquo[a]t trial [defendant] did not
object to any of the statements he now challengesrdquo and ldquomost were elicited by his
own attorney from a government witness during cross-examinationrdquo) United
States v Reyes-Alvarado 963 F2d 1184 1187 (9th Cir 1992) cert denied 506
US 890 (1992) (finding invited error and refusing to reverse where ldquoappellantrsquos
counsel solicited the testimony which he now claims should have been excludedrdquo
and ldquodid not seek to strike this testimony at the time it was givenrdquo)9
As a threshold matter it bears noting that defendant fails to acknowledge
the existence of invited error and makes no argument as to why ldquothe interests of
justicerdquo Barrow 118 F3d at 491 require this Court to refrain from applying the
invited-error doctrine Accordingly defendant has waived any right to invoke the
9 This Court has reached a similar conclusion albeit in an unpublished decision See United States v Ali 38 Fed Appx 220 224 (6th Cir Mar 26 2002) (unpublished)
-22shy
interests-of-justice exception recognized by this Court See United States v
Samour 199 F3d 821 822 n1 (6th Cir 1999) (defendant ldquowaived his right to
argue the applicability of [favorable precedent] by failing to raise the issue on
appealrdquo)
Even if not waived however the interests of justice do not require this
Court to depart from the general rule that relief is foreclosed by invited error The
challenged statements were not the result of mere oversight or an isolated error by
defendantrsquos trial counsel Rather this appears to be a classic example of trial
strategy gone awry ndash not a situation in which failure to reverse contravenes the
interests of justice Indeed in this case the interests of justice weigh in favor of
invoking the invited-error doctrine as defendant presumably sought to benefit
from eliciting the challenged statements and thus should not now be heard to
argue their inadmissibility simply because his strategy failed See Reyes-
Alvarado 963 F2d at 1187 (ldquoFrom the transcript it appears that counsel thought
his pursuit of this line of questioning might benefit his client His tactics
backfired and his client was convicted A defendant cannot have it both
ways This was invited error and therefore not grounds for reversalrdquo)
Moreover the governmentrsquos trial counsel showed an abundance of caution
by specifically raising the issue and asking whether it should be discussed at
-23shy
sidebar10 This too weighs against a finding that the interests of justice require
reversal See Neal 78 F3d at 904 (ldquoAt one point the prosecutor even tried to
warn [defendantrsquos] attorney about pursuing a line of questioning relating to the
defendantrsquos prior conduct but [defendantrsquos] attorney persisted Under these
circumstances [defendant] cannot complain of error which he himself has
invitedrdquo) (citation and internal quotations omitted)
Simply put this case precisely illustrates both the purpose behind the
10 The following exchange occurred when defense counsel elicited statements from the witness regarding what Ricky Cotton told the government
[Defense Counsel] Just tell us what Ricky Cotton said and let me -shytell us what obviously is hearsay Irsquoll sit down Tell us what Ricky Cotton -shy
[Government Counsel] Your Honor should we have a sidebar on this
[The Court] What for
[Government Counsel] Irsquom not sure to figure out where we are
[Defense Counsel] This is where we are what Ricky Cotton said
[The Court] Are you objecting
[Government Counsel] If he doesnrsquot have any objection to the witness saying what Ricky Cotton said thatrsquos fine
[Defense Counsel] Letrsquos go Tell us what Ricky Cotton said
(418 Tr 173-174 Apx __)
-24shy
invited-error doctrine and the need to enforce it strictly Defendantrsquos appeal does
not challenge any action by the government Nor does he take issue with the
district courtrsquos instructions to the jury the sufficiency of the evidence to support
his conviction or the reasonableness of his sentence He also does not contend the
district court improperly ruled on any objection made by his trial counsel Rather
his arguments on appeal arise solely from the actions of his own retained trial
counsel Such claims must be rejected on their face as a contrary rule would
create perverse incentives for defendants to invite some small amount of error in
every trial so as to create grounds for appeal Accordingly this Court should
apply the invited-error doctrine and affirm the judgment below without reaching
the question whether plain error exists
II
THE DISTRICT COURT DID NOT COMMIT PLAIN ERROR IN FAILING TO SUA SPONTE PREVENT DEFENDANTrsquoS TRIAL COUNSEL FROM
ELICITING THE CHALLENGED TESTIMONY
As noted above in Section IA if this Court determines that the invited-
error doctrine does not apply it should review admission of the challenged
statements for plain error United States v Namey 364 F3d 843 846 (6th Cir
2004)
-25shy
A The Plain-Error Doctrine
ldquoThe plain error doctrine mandates reversal only in exceptional
circumstances and only where the error is so plain that the trial judge and
prosecutor were derelict in countenancing itrdquo United States v Gardiner 463 F3d
445 459 (6th Cir 2006) (quoting United States v Carroll 26 F3d 1380 1383
(6th Cir 1994)) It ldquois to be used sparingly only in exceptional circumstances
and solely to avoid a miscarriage of justicerdquo United States v Phillips 516 F3d
479 487 (6th Cir 2008) (quoting United States v Cox 957 F2d 264 267 (6th
Cir 1992))
ldquoTo show plain error a defendant must establish the following (1) error
(2) that is plain and (3) that affects substantial rights If these three conditions are
met an appellate court may then exercise its discretion to notice a forfeited error
but only if (4) the error seriously affects the fairness integrity or public reputation
of judicial proceedingsrdquo United States v Arnold 486 F3d 177 194 (6th Cir
2007) cert denied 128 S Ct 871 (2008) (citation and internal quotations
omitted) ldquoThe phrase lsquoaffects substantial rightsrsquo lsquomeans prejudicial It must have
affected the outcome of the district court proceedingsrsquordquo United States v
(ldquo[I]ssues adverted to in a perfunctory manner unaccompanied by some effort at
developed argumentation are deemed waivedrdquo) (quoting McPherson v Kelsey
125 F3d 989 995-996 (6th Cir 1997))
-27shy
C The Third And Fourth Prongs Of The Plain-Error Doctrine Are Not Satisfied In This Case Because Other Evidence Supporting Defendantrsquos Conviction Is Overwhelming
Even if the issue were fully briefed a finding of plain error would be
improper because defendant cannot satisfy the third or fourth prongs of the
inquiry The third prong of the plain-error inquiry ndash ie the requirement that the
error ldquoaffects substantial rightsrdquo Arnold 486 F3d at 194 by ldquoaffect[ing] the
outcome of the district court proceedingsrdquo Mooneyham 473 F3d at 288 ndash is not
satisfied where the evidence against the defendant is overwhelming See
Mooneyham 473 F3d at 288 United States v Hines 398 F3d 713 718-719 (6th
Cir) cert denied 545 US 1134 (2005)
Likewise the fourth prong of the inquiry ndash ie the requirement that the
error be said to have ldquoseriously affect[ed] the fairness integrity or public
reputation of judicial proceedingsrdquo Arnold 486 F3d at 194 ndash also is not met when
other evidence is ldquooverwhelmingrdquo and ldquoessentially uncontrovertedrdquo See United
States v Cotton 535 US 625 632-633 (2002) Johnson v United States 520
US 461 469-470 (1997) Hines 398 F3d at 718-719 Indeed as both the
Supreme Court and this Court have recognized with regard to the fourth prong of
the inquiry in some cases ldquoit would be the reversal of a conviction which
would have th[e] effectrdquo of ldquoseriously affect[ing] the fairness integrity or public
-28shy
reputation of judicial proceedingsrdquo Johnson 520 US at 470 (internal quotations
omitted) (emphasis added) see also United States v McGhee 119 F3d 422 424shy
425 (6th Cir 1997) This is so because ldquo[r]eversal for error regardless of its effect
on the judgment encourages litigants to abuse the judicial process and bestirs the
public to ridicule itrdquo Johnson 520 US at 470 (citation and internal quotations
omitted) see also McGhee 119 F3d at 424-425
In view of the foregoing courts often cite the presence of overwhelming
evidence as the basis for concluding that a defendant has failed to meet both the
third and fourth prongs of the plain-error inquiry See Hines 398 F3d at 718-719
United States v Dedhia 134 F3d 802 809 (6th Cir) cert denied 523 US 1145
(1998) see also United States v Birk 453 F3d 893 898 (7th Cir 2006) United
States v Taylor 284 F3d 95 102 (1st Cir) cert denied 536 US 933 (2002)
This Court should follow that approach here as there is overwhelming evidence ndash
separate and apart from the challenged statements ndash to support defendantrsquos
conviction Specifically as explained more fully below testimony at trial
established that defendant (1) spoke openly to others during the weeks leading up
to the fire regarding his desire to force the Dosters from the neighborhood (2) was
the one who set the fire (3) confided to a friend afterward that he both set the fire
and performed the lawn job with the intent to drive the Dosters away because of
-29shy
their race and (4) told conflicting stories to the FBI during the course of its
investigation one of which included an admission that he was at least indirectly
involved in setting the fire
1 Defendantrsquos Statements Prior To The Fire
Two witnesses offered detailed accounts of conversations they had with
defendant prior to the date of the fire During these conversations defendant
expressed his desire to drive the Dosters from their home
Guy Wurts testified that in mid-July 2002 Defendant said something to the
effect of ldquoI got to get rid of these niggers Irsquoll find something to do I donrsquot know
what I got to get these niggers out [of] the neighborhoodrdquo (Wurts 417 Tr 208shy
209 Apx __) Wurts testified that defendant looked in the Dostersrsquo direction
when he made these comments and said the word ldquoniggerrdquo loud enough for the
Dosters ndash who were working in their yard at the time ndash to hear it (Wurts 417 Tr
202-203 209-210 Apx __) Wurts further testified that defendant ldquoseemed
seriousrdquo when he made these statements (Wurts 417 Tr 259 Apx __)
Debbie Daniely recounted similar statements by defendant Specifically
defendant told Daniely more than once that he was very upset about the Dosters
moving into the neighborhood saying something to the effect of ldquoniggers are
moving inrdquo and ldquo[w]e have to do something about itrdquo (Daniely 418 Tr 22-25
-30shy
Apx __) Defendant later admitted to the FBI that he made such a statement to
ldquo[t]his Court has lsquoroutinely concluded that such claims are best brought by a
defendant in a post-conviction proceeding under 28 USC sect 2255 so that the
-37shy
parties can develop an adequate record on the issuersquordquo Martinez 430 F3d at 338
(quoting United States v Brown 332 F3d 363 368 (6th Cir 2003)) ldquoThere is
however lsquoa narrow exceptionrsquo to this rule lsquowhen the existing record is adequate to
assess properly the merits of the claimrsquordquo United States v Hynes 467 F3d 951
969 (6th Cir 2006) (quoting United States v Franklin 415 F3d 537 555-556
(6th Cir 2005)) See also United States v Winkle 477 F3d 407 421 (6th Cir
2007) (ldquoThis Court typically will not review a claim of ineffective assistance on
direct appeal except in rare cases where the error is apparent from the existing
recordrdquo) (quoting United States v Lopez-Medina 461 F3d 724 737 (6th Cir
2006))
No basis exists for departing from the general rule against addressing
ineffective-assistance claims on direct appeal As this Court has noted ldquo[t]he trial
process contains a myriad of complex decisions that for strategic reasons are
sound when made but may appear unsound with the benefit of hindsightrdquo United
States v Davis 306 F3d 398 422 (6th Cir 2002) cert denied 537 US 1208
(2003) (quoting United States v Fortson 194 F3d 730 736 (6th Cir 1999))
Moreover ldquo[j]udicial scrutiny of counselrsquos performance must be highly
deferentialrdquo and ldquoa court must indulge a strong presumption that counselrsquos
conduct falls within the wide range of reasonable professional assistancerdquo
-38shy
Strickland v Washington 466 US 668 689 (1984) Thus to establish ineffective
assistance ldquothe defendant must overcome the presumption that under the
circumstances the challenged action lsquomight be considered sound trial strategyrsquordquo
Ibid (quoting Michel v Louisiana 350 US 91 101 (1955))
Here the decision by defendantrsquos retained trial counsel to elicit the
challenged statements during cross-examination of a government witness
undeniably constitutes an element of trial strategy that cannot be analyzed at this
stage of the proceedings In particular because this is a direct appeal there is no
evidence in the record regarding defense counselrsquos trial strategy This Court
repeatedly has refused to review ineffective-assistance claims under such
circumstances See eg Lopez-Medina 461 F3d at 737 (ldquoAbsent evidence
specifically addressing counselrsquos performance we cannot determine whether his
actions reflected a reasoned trial strategyrdquo) United States v Sullivan 431 F3d
976 986 (6th Cir 2005) (ldquoWithout an explanation from trial counsel as to why he
failed to call the alibi witness we have no basis to determine whether this decision
was the result of inadequate representation or reasonable trial strategyrdquo) United
States v Allison 59 F3d 43 47 (6th Cir) cert denied 516 US 1002 (1995)
(ldquo[T]he sparse record before this court does not reveal whether the attorneyrsquos
actions could be considered sound trial strategyrdquo) United States v Snow 48 F3d
-39shy
198 199 (6th Cir 1995) (ldquoThe record before this court simply is insufficient to
show whether the alleged wrongful acts could be considered sound trial
strategyrdquo) Thus defendantrsquos ineffective-assistance claim must be examined ndash if
at all ndash in a separate collateral proceeding brought pursuant to Section 2255
C The Evidence That Is Available In The Record Does Not Support A Finding Of Ineffective Assistance Of Counsel
As stated above the governmentrsquos position is that the current record is not
sufficient to permit this Court to address defendantrsquos ineffective-assistance claim
in this direct appeal However if the Court disagrees ndash or desires in the interest of
judicial economy to address defendantrsquos claim on direct appeal ndash it should reject
the claim because defendant fails to satisfy the second prong of the ineffective-
assistance inquiry11
11 The government does not concede that the first prong of the Strickland inquiry is satisfied in this case Rather as noted above it is not possible to resolve the issue at this point because the record does not indicate precisely what defendantrsquos trial counsel was thinking what his strategy was or why he elected to pursue certain lines of questioning In the event that defendant elects to bring a collateral challenge pursuant to Section 2255 the government reserves the right to address the first prong of Strickland inquiry and to further develop its argument as to the second prong The governmentrsquos decision not to do so in this brief is based on the incomplete nature of the record with regard to the Strickland inquiry and should not be construed as a waiver or forfeiture of any arguments relating to defendantrsquos ineffective-assistance claim
-40shy
1 Standard For Establishing Ineffective Assistance Of Counsel
To prove ineffective assistance of counsel under Strickland a defendant
first ldquomust demonstrate that counselrsquos performance fell lsquobelow the objective
standard of reasonablenessrsquordquo Ivory v Jackson 509 F3d 284 294 (6th Cir 2007)
cert denied 128 S Ct 1897 (2008) (quoting Strickland 466 US at 688)) ldquoThe
defendant must then demonstrate that lsquothere is a reasonable probability that but
for counselrsquos unprofessional errors the result of the proceeding would have been
different A reasonable probability is a probability sufficient to undermine the
confidence in the outcomersquordquo Ibid (quoting Strickland 466 US at 694)
Significantly this Court ldquoneed not decide whether defense counsel
performed deficiently if disposing of an ineffective-assistance claim on the ground
of lack of sufficient prejudice would be easierrdquo Hynes 467 F3d at 970 See also
Ivory 509 F3d at 294 (ldquo[A] court need not determine whether counselrsquos
performance was deficient before examining the prejudice suffered by the
defendant as a result of the alleged deficiencies If it is easier to dispose of
an ineffectiveness claim on the ground of lack of sufficient prejudice which we
expect will often be so that course should be followedrdquo) (quoting Strickland 466
US at 697)
-41shy
2 Defendant Is Unable To Demonstrate Sufficient Prejudice And Therefore Cannot Satisfy The Second Prong Of The Inquiry
ldquoTo show prejudice [defendant] must demonstrate that lsquothere is a
reasonable probability that but for counselrsquos unprofessional errors the result of
the proceeding would have been differentrsquordquo Harrison v Motley 478 F3d 750
756 (6th Cir) cert denied 128 S Ct 444 (2007) (quoting Strickland 466 US at
694)) As set forth above in Section IIC the evidence of defendantrsquos guilt is
overwhelming and the result therefore would not have been different absent the
challenged statements This Court repeatedly has determined that the second
prong of the Strickland inquiry is not met under such circumstances See eg
Harrison 478 F3d at 757 (defendant ldquofailed to show that his attorneysrsquo alleged
conflict of interest resulted in prejudicerdquo where ldquothe evidence admitted against
[defendant] at trial was lsquooverwhelmingrsquordquo) Hicks v Collins 384 F3d 204 215
(6th Cir 2004) cert denied 545 US 1155 (2005) (holding that defendant cannot
satisfy the second prong of Strickland where ldquothere was overwhelming evidence of
[defendantrsquos] guiltrdquo) Campbell v United States 364 F3d 727 736 (6th Cir
2004) cert denied 543 US 1119 (2005) (ldquoGiven the overwhelming evidence
establishing [defendantrsquos] guilt we believe that he would not have been able to
show that but for his attorneyrsquos failure to object to the prosecutorrsquos alleged
-42shy
misconduct the result would have been differentrdquo)
Accordingly even if this Court determines that the record is sufficient for it
to address defendantrsquos ineffective-assistance claim on direct appeal it should
reject this claim based on his failure to satisfy the second prong of the Strickland
inquiry
CONCLUSION
For the foregoing reasons this Court should affirm the judgment below
Respectfully submitted
GRACE CHUNG BECKER Acting Assistant Attorney General Civil Rights Division
DIANA K FLYNN DIRK C PHILLIPS Attorneys US Department of Justice Civil Rights Divisions Appellate Section Ben Franklin Station PO Box 14403 Washington DC 20044-4403 (202) 305-4876
CERTIFICATE OF COMPLIANCE
Pursuant to Federal Rule of Appellate Procedure 32(a)(7)(B) I hereby
certify that this brief is proportionally spaced 14-point Times New Roman font
Per WordPerfect 12 software the brief contains 9022 words excluding those
parts exempted by Federal Rule of Appellate Procedure 32(a)(7)(B)(iii)
DIRK C PHILLIPS Attorney
DATED June 18 2008
CERTIFICATE OF SERVICE
I hereby certify that on June 18 2008 a copy of the foregoing PROOF
BRIEF FOR THE UNITED STATES AS PLAINTIFF-APPELLEE was served by
first class mail postage prepaid on counsel of record at the following address
Joan E Morgan 2057 Orchard Lake Road Sylvan Lake MI 48320
DIRK C PHILLIPS Attorney
APPELLEErsquoS DESIGNATION OF APPENDIX CONTENTS
APPELLEErsquoS DESIGNATION OF APPENDIX CONTENTS
Appellee United States of America designates the following items to be
review by this Court when he elicited allegedly inadmissible testimony during
cross-examination of a government witness
2 Whether in the absence of invited error the district court committed
plain error by not acting sua sponte to prevent defendantrsquos trial counsel from
eliciting the challenged testimony
3 Whether the record is sufficient to permit this Court to address
defendantrsquos claim of ineffective assistance of counsel and if so whether the claim
has merit
STATEMENT OF THE CASE
On January 5 2006 a federal grand jury returned an indictment charging
defendant Wayland Mullins and a co-conspirator Michael Richardson with
conspiracy against rights in violation of 18 USC 241 (Count I) interference with
housing rights in violation of 42 USC 3631(a) and 18 USC 2 (Count II) use of
fire in the commission of a felony in violation of 18 USC 2 and 18 USC
844(h)(1) (Count III) and conspiracy to obstruct justice in violation of 18 USC
371 (Count IV) (R 1 at 1-8 Apx ___)1 Richardson pled guilty to all four
1 Citations to ldquoR rdquo refer to documents in the district court record Citations to ldquoR __rdquo refer to notations in the district court record for which there is no docket number Citations to ldquo Tr rdquo refer by date and page number to the trial transcript Citations to ldquoBr rdquo refer to Defendant-Appellantrsquos Proof
(continued)
-3shy
counts on September 21 2006 (R 92106 plea hearing) Defendant went to
trial on these charges in November 2006 but the jury was unable to reach a
verdict The district court declared a mistrial on November 17 2006 (R
111706 declaration of mistrial)
On December 14 2006 a federal grand jury returned a superseding
indictment charging defendant and another co-conspirator Ricky Cotton with the
same four counts described above Cotton pled guilty to Count I on April 12
2007 (R 41207 plea hearing) Defendant again proceeded to trial and on
April 20 2007 was convicted on all four counts (R 70 Apx __)
On August 28 2007 the district court sentenced defendant to 207 monthsrsquo
imprisonment and ordered him to pay $12400 in restitution (R 78 at 3-6 Apx
___) This appeal followed
STATEMENT OF THE FACTS
From the evidence presented at trial the jury reasonably could have found
the following facts which are set forth in the light most favorable to the
government
1(continued)
Brief On Appeal
-4shy
1 General Background
In 2002 Reginald Doster and his family purchased a home located at 5948
Ziegler Street in Taylor Michigan They made a down payment in February with
the understanding that the transaction would not close until July (Doster 417 Tr
125 138 Apx __) Between February 2002 and July 2002 the Dosters worked to
refurbish the property (Doster 417 Tr 125-126 Apx __) They finished this
process on or about July 28 2002 moved in during the latter part of October
2002 and lived there until approximately August 2005 (Doster 417 Tr 123
131-133 149-150 154 Apx __) Beginning before they moved in and continuing
throughout the time they lived on Ziegler Street the Dosters who are African-
American were the subject of racial slurs and racially-motivated actions by some
of their neighbors
2 Defendantrsquos Reaction To The Dostersrsquo Purchase Of The Ziegler Property
The Doster home was located across the street from the home in which
defendant grew up and in which his mother and other relatives still live (Doster
As such the Dostersrsquo purchase of and efforts to refurbish the house across
the street from the Mullins home did not go unnoticed by defendant or certain
other members of the neighborhood Indeed it was a topic of conversation among
those who were not happy about an African-American family moving into the
neighborhood (Daniely 418 Tr 17-18 Apx __)
During the period in which the Dosters were refurbishing the property
defendant made comments to friends regarding his desire to drive the Dosters from
the neighborhood One such incident occurred during the middle part of July
2002 (Wurts 417 Tr 208-209 Apx __) Defendant and a friend Guy Wurts
were standing in the back of Wurtsrsquo pickup truck which was parked in front of the
Mullins home (Wurts 417 Tr 202 Apx __) The Dosters were out working in
their yard at the time (Wurts 417 Tr 202-203 209 Apx __) Defendant said
something to the effect of ldquoI got to get rid of these niggers Irsquoll find something to
do I donrsquot know what I got to get these niggers out [of] the neighborhoodrdquo
(Wurts 417 Tr 209 Apx __)2 Defendant was looking in the Dostersrsquo direction
2 Similar descriptions of defendantrsquos statements appear elsewhere in Wurtsrsquo testimony (Wurts 417 Tr 201-202 209 260 Apx __)
-6shy
when he made these comments and said the word ldquoniggerrdquo loud enough for the
Dosters to hear it (Wurts 417 Tr 209-210 Apx __) Wurts testified that
defendant was a racist and that defendant ldquoseemed seriousrdquo when he made these
statements (Wurts 417 Tr 239-240 259-260 Apx __)
Debbie Daniely a neighbor and friend of the Mullins family (Daniely 418
Tr 6-8 Apx __) recounted similar statements by defendant Defendant told
Daniely more than once that he was very upset about the Dosters moving into the
neighborhood (Daniely 418 Tr 22 Apx __) She testified that defendant said
something to the effect of ldquoniggers are moving inrdquo and ldquo[w]e have to do something
about itrdquo (Daniely 418 Tr 23 Apx __)3 She believed he was serious when he
said such things (Daniely 418 Tr 25 Apx __)
3 The Fire
During the afternoon of Sunday July 28 2002 defendant along with Lee
Vanderlinden Don Flowers Chuck Proctor Michael Richardson and Ricky
Cotton4 were working in the yard of a neighbor Ann Hixon (Richardson 418
3 Defendant later admitted to the FBI that he made such a statement to Daniely (Rees 418 Tr 203 Apx __)
4 Lee Vanderlinden was the boyfriend of defendantrsquos mother and has lived in the Mullins home since at least 1996 or 1997 (Wurts 417 Tr 197-198 Apx __) Don Flowers was a friend of the Mullins family who often would socialize
(continued)
-7shy
Tr 56-58 Apx __)5 A group that included defendant Richardson Vanderlinden
Flowers and Cotton began making comments about ldquothe niggers next doorrdquo
(Richardson 418 Tr 58-59 Apx __) Richardson suggested burning a cross in
order to drive the Dosters away (Richardson 418 Tr 61 Apx __) Defendant
however went further suggesting they ldquo[t]orch the houserdquo and told the others to
come back later that night (Richardson 418 Tr 62-63 Apx __) Richardson
Vanderlinden Cotton and Flowers returned that evening and met defendant at the
Mullins home across the street from the Dosters (Richardson 418 Tr 63 Apx
__)6 They discussed ldquo[t]orchingrdquo the Doster home and all were in favor of doing
4(continued)
with Lee Vanderlinden at the Mullins home (Church 419 Tr 58-59 Apx __) Chuck Proctor worked with Lee Vanderlinden and often would hang around the Mullins home (Wurts 417 Tr 199-200 Apx __ Church 419 Tr 57-58 Apx __) Michael Richardson was a good friend of defendant who spent a lot of time at the Mullins home (Wurts 417 Tr 201 Apx __) Ricky Cotton lived nearby and also was a regular at the Mullins home (Wurts 417 Tr 200-201 Apx __) As noted above Richardson and Cotton both pled guilty in this case (R 92106 and 41207 plea hearings)
5 Ann Hixon was called by the defense and testified that this gathering could not have taken place on Sunday July 28 She testified that it occurred sometime during the Spring (she could not recall which year) and that it could not have been a Sunday because she always works on Sundays (Hixon 419 Tr 37shy38 Apx __)
Defendantrsquos aunt Casie Church lives in the Mullins home and was called to testify by defendant She stated that she was sitting on the front porch of the house during the late evening and early morning hours of July 28 and 29
(continued)
6
-8shy
so (Richardson 418 Tr 63 Apx __) Each of them encouraged defendant by
ldquo[e]gging him onrdquo and by ldquo[d]aringrdquo and ldquo[i]ncitingrdquo him to do so (Richardson
418 Tr 64 Apx __)
Defendant took a can of gasoline from the garage of the Mullins home and
went to the back of the Doster home (Richardson 418 Tr 64-65 Apx __)
Richardson Cotton Flowers and Vanderlinden served as lookouts with
Richardson following defendant to the Doster home and the other three remaining
across the street (Richardson 418 Tr 64-65 Apx __) Upon reaching the back
of the Doster home defendant either pried open or broke a window and poured
gasoline inside the house and on the windowsill (Richardson 418 Tr 65 111shy
114 Apx __)7 He then started the fire by holding a lighter up to the windowsill
and blowing until it ignited (Richardson 418 Tr 113 Apx __) Once the fire
was lit defendant and Richardson ran back across the street to join the others
where they celebrated and congratulated defendant (Richardson 418 Tr 65-66
6(continued)
(Church 419 Tr 45 Apx __) She testified that there was no one near the garage of the Mullins home during this time (Church 419 Tr 45 Apx __) But she stated that she did see someone named Mike sometime between 10 pm and 3 am (Church 419 Tr 45-46 Apx __)
7 Richardsonrsquos testimony indicates that it may have been a mixture of oil and gasoline (Richardson 418 Tr 65 Apx __)
-9shy
114-115 Apx __) Richardson testified that defendant set the fire because of the
Dostersrsquo race (Richardson 418 Tr 82 Apx __)
The Dosters had not yet moved into the Ziegler property and therefore were
not home at the time of the fire They had spent Sunday July 28 painting the
Ziegler property and left sometime between 7 pm and 8 pm (Doster 417 Tr
129 167-168 Apx __) Reginald Doster discovered there had been a fire when
he along with his wife and ten-year-old daughter returned to the home between 7
am and 9 am the next morning by which time the fire had burned out (Doster
doctrine recognizes that a court cannot be asked by counsel to take a step in a case
and later be convicted of error because it has complied with such requestrdquo)
(citation and internal quotations omitted) ldquoThis doctrine is a branch of the
doctrine of waiver by which courts prevent a party from inducing an erroneous
ruling and later seeking to profit from the legal consequences by having the
verdict vacatedrdquo Barrow 118 F3d at 490-491
Some courts have held that the existence of invited error forecloses any
-20shy
review ndash even for plain error See eg United States v Baker 432 F3d 1189
1216 (11th Cir 2005) cert denied 547 US 1085 (2006) (ldquoIt is a cardinal rule of
appellate review that a party may not challenge as error a ruling or other trial
proceeding invited by that party Where invited error exists it precludes a
court from invoking the plain error rule and reversingrdquo) United States v Fulford
980 F2d 1110 1116 (7th Cir 1992) (ldquoIt is well-settled that where error is invited
not even plain error permits reversalrdquo) This Court however has recognized an
exception holding that ldquo[i]nvited error does not foreclose relief when the
interests of justice demand otherwiserdquo Barrow 118 F3d at 491 In this Circuit
the question ldquo[w]hether the circumstances of a particular case justify deviation
from the normal rule of waiver under this doctrine is left largely to the discretion
of the appellate courtrdquo Ibid Nevertheless ldquo[u]nder the invited error doctrine an
error introduced by the complaining party will cause reversal only in the most
exceptional situationrdquo United States v Tandon 111 F3d 482 489 (6th Cir
1997) (citation and internal quotations omitted)
C Any Error By The District Court In Permitting The Challenged Statements Was Invited Error And Therefore Should Not Be Reviewed By This Court
Here all of the challenged statements were elicited by defendantrsquos retained
trial counsel Br 15-24 This plainly constitutes invited error See United States
-21shy
v Parikh 858 F2d 688 695 (11th Cir 1988) (ldquoWe hold that the admission of out
of court statements by a government witness when responding to an inquiry by
defense counsel creates lsquoinvited errorrsquordquo) See also Baker 432 F3d at 1215-1216
(defendant ldquocannot now complain about the district courtrsquos errorrdquo where his
counsel ldquoinvited the errorrdquo by eliciting hearsay during cross-examination) United
States v Neal 78 F3d 901 904 (4th Cir 1996) (defendant ldquoinvited the errorrdquo and
it therefore ldquoprovides no basis for reversalrdquo where ldquo[a]t trial [defendant] did not
object to any of the statements he now challengesrdquo and ldquomost were elicited by his
own attorney from a government witness during cross-examinationrdquo) United
States v Reyes-Alvarado 963 F2d 1184 1187 (9th Cir 1992) cert denied 506
US 890 (1992) (finding invited error and refusing to reverse where ldquoappellantrsquos
counsel solicited the testimony which he now claims should have been excludedrdquo
and ldquodid not seek to strike this testimony at the time it was givenrdquo)9
As a threshold matter it bears noting that defendant fails to acknowledge
the existence of invited error and makes no argument as to why ldquothe interests of
justicerdquo Barrow 118 F3d at 491 require this Court to refrain from applying the
invited-error doctrine Accordingly defendant has waived any right to invoke the
9 This Court has reached a similar conclusion albeit in an unpublished decision See United States v Ali 38 Fed Appx 220 224 (6th Cir Mar 26 2002) (unpublished)
-22shy
interests-of-justice exception recognized by this Court See United States v
Samour 199 F3d 821 822 n1 (6th Cir 1999) (defendant ldquowaived his right to
argue the applicability of [favorable precedent] by failing to raise the issue on
appealrdquo)
Even if not waived however the interests of justice do not require this
Court to depart from the general rule that relief is foreclosed by invited error The
challenged statements were not the result of mere oversight or an isolated error by
defendantrsquos trial counsel Rather this appears to be a classic example of trial
strategy gone awry ndash not a situation in which failure to reverse contravenes the
interests of justice Indeed in this case the interests of justice weigh in favor of
invoking the invited-error doctrine as defendant presumably sought to benefit
from eliciting the challenged statements and thus should not now be heard to
argue their inadmissibility simply because his strategy failed See Reyes-
Alvarado 963 F2d at 1187 (ldquoFrom the transcript it appears that counsel thought
his pursuit of this line of questioning might benefit his client His tactics
backfired and his client was convicted A defendant cannot have it both
ways This was invited error and therefore not grounds for reversalrdquo)
Moreover the governmentrsquos trial counsel showed an abundance of caution
by specifically raising the issue and asking whether it should be discussed at
-23shy
sidebar10 This too weighs against a finding that the interests of justice require
reversal See Neal 78 F3d at 904 (ldquoAt one point the prosecutor even tried to
warn [defendantrsquos] attorney about pursuing a line of questioning relating to the
defendantrsquos prior conduct but [defendantrsquos] attorney persisted Under these
circumstances [defendant] cannot complain of error which he himself has
invitedrdquo) (citation and internal quotations omitted)
Simply put this case precisely illustrates both the purpose behind the
10 The following exchange occurred when defense counsel elicited statements from the witness regarding what Ricky Cotton told the government
[Defense Counsel] Just tell us what Ricky Cotton said and let me -shytell us what obviously is hearsay Irsquoll sit down Tell us what Ricky Cotton -shy
[Government Counsel] Your Honor should we have a sidebar on this
[The Court] What for
[Government Counsel] Irsquom not sure to figure out where we are
[Defense Counsel] This is where we are what Ricky Cotton said
[The Court] Are you objecting
[Government Counsel] If he doesnrsquot have any objection to the witness saying what Ricky Cotton said thatrsquos fine
[Defense Counsel] Letrsquos go Tell us what Ricky Cotton said
(418 Tr 173-174 Apx __)
-24shy
invited-error doctrine and the need to enforce it strictly Defendantrsquos appeal does
not challenge any action by the government Nor does he take issue with the
district courtrsquos instructions to the jury the sufficiency of the evidence to support
his conviction or the reasonableness of his sentence He also does not contend the
district court improperly ruled on any objection made by his trial counsel Rather
his arguments on appeal arise solely from the actions of his own retained trial
counsel Such claims must be rejected on their face as a contrary rule would
create perverse incentives for defendants to invite some small amount of error in
every trial so as to create grounds for appeal Accordingly this Court should
apply the invited-error doctrine and affirm the judgment below without reaching
the question whether plain error exists
II
THE DISTRICT COURT DID NOT COMMIT PLAIN ERROR IN FAILING TO SUA SPONTE PREVENT DEFENDANTrsquoS TRIAL COUNSEL FROM
ELICITING THE CHALLENGED TESTIMONY
As noted above in Section IA if this Court determines that the invited-
error doctrine does not apply it should review admission of the challenged
statements for plain error United States v Namey 364 F3d 843 846 (6th Cir
2004)
-25shy
A The Plain-Error Doctrine
ldquoThe plain error doctrine mandates reversal only in exceptional
circumstances and only where the error is so plain that the trial judge and
prosecutor were derelict in countenancing itrdquo United States v Gardiner 463 F3d
445 459 (6th Cir 2006) (quoting United States v Carroll 26 F3d 1380 1383
(6th Cir 1994)) It ldquois to be used sparingly only in exceptional circumstances
and solely to avoid a miscarriage of justicerdquo United States v Phillips 516 F3d
479 487 (6th Cir 2008) (quoting United States v Cox 957 F2d 264 267 (6th
Cir 1992))
ldquoTo show plain error a defendant must establish the following (1) error
(2) that is plain and (3) that affects substantial rights If these three conditions are
met an appellate court may then exercise its discretion to notice a forfeited error
but only if (4) the error seriously affects the fairness integrity or public reputation
of judicial proceedingsrdquo United States v Arnold 486 F3d 177 194 (6th Cir
2007) cert denied 128 S Ct 871 (2008) (citation and internal quotations
omitted) ldquoThe phrase lsquoaffects substantial rightsrsquo lsquomeans prejudicial It must have
affected the outcome of the district court proceedingsrsquordquo United States v
(ldquo[I]ssues adverted to in a perfunctory manner unaccompanied by some effort at
developed argumentation are deemed waivedrdquo) (quoting McPherson v Kelsey
125 F3d 989 995-996 (6th Cir 1997))
-27shy
C The Third And Fourth Prongs Of The Plain-Error Doctrine Are Not Satisfied In This Case Because Other Evidence Supporting Defendantrsquos Conviction Is Overwhelming
Even if the issue were fully briefed a finding of plain error would be
improper because defendant cannot satisfy the third or fourth prongs of the
inquiry The third prong of the plain-error inquiry ndash ie the requirement that the
error ldquoaffects substantial rightsrdquo Arnold 486 F3d at 194 by ldquoaffect[ing] the
outcome of the district court proceedingsrdquo Mooneyham 473 F3d at 288 ndash is not
satisfied where the evidence against the defendant is overwhelming See
Mooneyham 473 F3d at 288 United States v Hines 398 F3d 713 718-719 (6th
Cir) cert denied 545 US 1134 (2005)
Likewise the fourth prong of the inquiry ndash ie the requirement that the
error be said to have ldquoseriously affect[ed] the fairness integrity or public
reputation of judicial proceedingsrdquo Arnold 486 F3d at 194 ndash also is not met when
other evidence is ldquooverwhelmingrdquo and ldquoessentially uncontrovertedrdquo See United
States v Cotton 535 US 625 632-633 (2002) Johnson v United States 520
US 461 469-470 (1997) Hines 398 F3d at 718-719 Indeed as both the
Supreme Court and this Court have recognized with regard to the fourth prong of
the inquiry in some cases ldquoit would be the reversal of a conviction which
would have th[e] effectrdquo of ldquoseriously affect[ing] the fairness integrity or public
-28shy
reputation of judicial proceedingsrdquo Johnson 520 US at 470 (internal quotations
omitted) (emphasis added) see also United States v McGhee 119 F3d 422 424shy
425 (6th Cir 1997) This is so because ldquo[r]eversal for error regardless of its effect
on the judgment encourages litigants to abuse the judicial process and bestirs the
public to ridicule itrdquo Johnson 520 US at 470 (citation and internal quotations
omitted) see also McGhee 119 F3d at 424-425
In view of the foregoing courts often cite the presence of overwhelming
evidence as the basis for concluding that a defendant has failed to meet both the
third and fourth prongs of the plain-error inquiry See Hines 398 F3d at 718-719
United States v Dedhia 134 F3d 802 809 (6th Cir) cert denied 523 US 1145
(1998) see also United States v Birk 453 F3d 893 898 (7th Cir 2006) United
States v Taylor 284 F3d 95 102 (1st Cir) cert denied 536 US 933 (2002)
This Court should follow that approach here as there is overwhelming evidence ndash
separate and apart from the challenged statements ndash to support defendantrsquos
conviction Specifically as explained more fully below testimony at trial
established that defendant (1) spoke openly to others during the weeks leading up
to the fire regarding his desire to force the Dosters from the neighborhood (2) was
the one who set the fire (3) confided to a friend afterward that he both set the fire
and performed the lawn job with the intent to drive the Dosters away because of
-29shy
their race and (4) told conflicting stories to the FBI during the course of its
investigation one of which included an admission that he was at least indirectly
involved in setting the fire
1 Defendantrsquos Statements Prior To The Fire
Two witnesses offered detailed accounts of conversations they had with
defendant prior to the date of the fire During these conversations defendant
expressed his desire to drive the Dosters from their home
Guy Wurts testified that in mid-July 2002 Defendant said something to the
effect of ldquoI got to get rid of these niggers Irsquoll find something to do I donrsquot know
what I got to get these niggers out [of] the neighborhoodrdquo (Wurts 417 Tr 208shy
209 Apx __) Wurts testified that defendant looked in the Dostersrsquo direction
when he made these comments and said the word ldquoniggerrdquo loud enough for the
Dosters ndash who were working in their yard at the time ndash to hear it (Wurts 417 Tr
202-203 209-210 Apx __) Wurts further testified that defendant ldquoseemed
seriousrdquo when he made these statements (Wurts 417 Tr 259 Apx __)
Debbie Daniely recounted similar statements by defendant Specifically
defendant told Daniely more than once that he was very upset about the Dosters
moving into the neighborhood saying something to the effect of ldquoniggers are
moving inrdquo and ldquo[w]e have to do something about itrdquo (Daniely 418 Tr 22-25
-30shy
Apx __) Defendant later admitted to the FBI that he made such a statement to
ldquo[t]his Court has lsquoroutinely concluded that such claims are best brought by a
defendant in a post-conviction proceeding under 28 USC sect 2255 so that the
-37shy
parties can develop an adequate record on the issuersquordquo Martinez 430 F3d at 338
(quoting United States v Brown 332 F3d 363 368 (6th Cir 2003)) ldquoThere is
however lsquoa narrow exceptionrsquo to this rule lsquowhen the existing record is adequate to
assess properly the merits of the claimrsquordquo United States v Hynes 467 F3d 951
969 (6th Cir 2006) (quoting United States v Franklin 415 F3d 537 555-556
(6th Cir 2005)) See also United States v Winkle 477 F3d 407 421 (6th Cir
2007) (ldquoThis Court typically will not review a claim of ineffective assistance on
direct appeal except in rare cases where the error is apparent from the existing
recordrdquo) (quoting United States v Lopez-Medina 461 F3d 724 737 (6th Cir
2006))
No basis exists for departing from the general rule against addressing
ineffective-assistance claims on direct appeal As this Court has noted ldquo[t]he trial
process contains a myriad of complex decisions that for strategic reasons are
sound when made but may appear unsound with the benefit of hindsightrdquo United
States v Davis 306 F3d 398 422 (6th Cir 2002) cert denied 537 US 1208
(2003) (quoting United States v Fortson 194 F3d 730 736 (6th Cir 1999))
Moreover ldquo[j]udicial scrutiny of counselrsquos performance must be highly
deferentialrdquo and ldquoa court must indulge a strong presumption that counselrsquos
conduct falls within the wide range of reasonable professional assistancerdquo
-38shy
Strickland v Washington 466 US 668 689 (1984) Thus to establish ineffective
assistance ldquothe defendant must overcome the presumption that under the
circumstances the challenged action lsquomight be considered sound trial strategyrsquordquo
Ibid (quoting Michel v Louisiana 350 US 91 101 (1955))
Here the decision by defendantrsquos retained trial counsel to elicit the
challenged statements during cross-examination of a government witness
undeniably constitutes an element of trial strategy that cannot be analyzed at this
stage of the proceedings In particular because this is a direct appeal there is no
evidence in the record regarding defense counselrsquos trial strategy This Court
repeatedly has refused to review ineffective-assistance claims under such
circumstances See eg Lopez-Medina 461 F3d at 737 (ldquoAbsent evidence
specifically addressing counselrsquos performance we cannot determine whether his
actions reflected a reasoned trial strategyrdquo) United States v Sullivan 431 F3d
976 986 (6th Cir 2005) (ldquoWithout an explanation from trial counsel as to why he
failed to call the alibi witness we have no basis to determine whether this decision
was the result of inadequate representation or reasonable trial strategyrdquo) United
States v Allison 59 F3d 43 47 (6th Cir) cert denied 516 US 1002 (1995)
(ldquo[T]he sparse record before this court does not reveal whether the attorneyrsquos
actions could be considered sound trial strategyrdquo) United States v Snow 48 F3d
-39shy
198 199 (6th Cir 1995) (ldquoThe record before this court simply is insufficient to
show whether the alleged wrongful acts could be considered sound trial
strategyrdquo) Thus defendantrsquos ineffective-assistance claim must be examined ndash if
at all ndash in a separate collateral proceeding brought pursuant to Section 2255
C The Evidence That Is Available In The Record Does Not Support A Finding Of Ineffective Assistance Of Counsel
As stated above the governmentrsquos position is that the current record is not
sufficient to permit this Court to address defendantrsquos ineffective-assistance claim
in this direct appeal However if the Court disagrees ndash or desires in the interest of
judicial economy to address defendantrsquos claim on direct appeal ndash it should reject
the claim because defendant fails to satisfy the second prong of the ineffective-
assistance inquiry11
11 The government does not concede that the first prong of the Strickland inquiry is satisfied in this case Rather as noted above it is not possible to resolve the issue at this point because the record does not indicate precisely what defendantrsquos trial counsel was thinking what his strategy was or why he elected to pursue certain lines of questioning In the event that defendant elects to bring a collateral challenge pursuant to Section 2255 the government reserves the right to address the first prong of Strickland inquiry and to further develop its argument as to the second prong The governmentrsquos decision not to do so in this brief is based on the incomplete nature of the record with regard to the Strickland inquiry and should not be construed as a waiver or forfeiture of any arguments relating to defendantrsquos ineffective-assistance claim
-40shy
1 Standard For Establishing Ineffective Assistance Of Counsel
To prove ineffective assistance of counsel under Strickland a defendant
first ldquomust demonstrate that counselrsquos performance fell lsquobelow the objective
standard of reasonablenessrsquordquo Ivory v Jackson 509 F3d 284 294 (6th Cir 2007)
cert denied 128 S Ct 1897 (2008) (quoting Strickland 466 US at 688)) ldquoThe
defendant must then demonstrate that lsquothere is a reasonable probability that but
for counselrsquos unprofessional errors the result of the proceeding would have been
different A reasonable probability is a probability sufficient to undermine the
confidence in the outcomersquordquo Ibid (quoting Strickland 466 US at 694)
Significantly this Court ldquoneed not decide whether defense counsel
performed deficiently if disposing of an ineffective-assistance claim on the ground
of lack of sufficient prejudice would be easierrdquo Hynes 467 F3d at 970 See also
Ivory 509 F3d at 294 (ldquo[A] court need not determine whether counselrsquos
performance was deficient before examining the prejudice suffered by the
defendant as a result of the alleged deficiencies If it is easier to dispose of
an ineffectiveness claim on the ground of lack of sufficient prejudice which we
expect will often be so that course should be followedrdquo) (quoting Strickland 466
US at 697)
-41shy
2 Defendant Is Unable To Demonstrate Sufficient Prejudice And Therefore Cannot Satisfy The Second Prong Of The Inquiry
ldquoTo show prejudice [defendant] must demonstrate that lsquothere is a
reasonable probability that but for counselrsquos unprofessional errors the result of
the proceeding would have been differentrsquordquo Harrison v Motley 478 F3d 750
756 (6th Cir) cert denied 128 S Ct 444 (2007) (quoting Strickland 466 US at
694)) As set forth above in Section IIC the evidence of defendantrsquos guilt is
overwhelming and the result therefore would not have been different absent the
challenged statements This Court repeatedly has determined that the second
prong of the Strickland inquiry is not met under such circumstances See eg
Harrison 478 F3d at 757 (defendant ldquofailed to show that his attorneysrsquo alleged
conflict of interest resulted in prejudicerdquo where ldquothe evidence admitted against
[defendant] at trial was lsquooverwhelmingrsquordquo) Hicks v Collins 384 F3d 204 215
(6th Cir 2004) cert denied 545 US 1155 (2005) (holding that defendant cannot
satisfy the second prong of Strickland where ldquothere was overwhelming evidence of
[defendantrsquos] guiltrdquo) Campbell v United States 364 F3d 727 736 (6th Cir
2004) cert denied 543 US 1119 (2005) (ldquoGiven the overwhelming evidence
establishing [defendantrsquos] guilt we believe that he would not have been able to
show that but for his attorneyrsquos failure to object to the prosecutorrsquos alleged
-42shy
misconduct the result would have been differentrdquo)
Accordingly even if this Court determines that the record is sufficient for it
to address defendantrsquos ineffective-assistance claim on direct appeal it should
reject this claim based on his failure to satisfy the second prong of the Strickland
inquiry
CONCLUSION
For the foregoing reasons this Court should affirm the judgment below
Respectfully submitted
GRACE CHUNG BECKER Acting Assistant Attorney General Civil Rights Division
DIANA K FLYNN DIRK C PHILLIPS Attorneys US Department of Justice Civil Rights Divisions Appellate Section Ben Franklin Station PO Box 14403 Washington DC 20044-4403 (202) 305-4876
CERTIFICATE OF COMPLIANCE
Pursuant to Federal Rule of Appellate Procedure 32(a)(7)(B) I hereby
certify that this brief is proportionally spaced 14-point Times New Roman font
Per WordPerfect 12 software the brief contains 9022 words excluding those
parts exempted by Federal Rule of Appellate Procedure 32(a)(7)(B)(iii)
DIRK C PHILLIPS Attorney
DATED June 18 2008
CERTIFICATE OF SERVICE
I hereby certify that on June 18 2008 a copy of the foregoing PROOF
BRIEF FOR THE UNITED STATES AS PLAINTIFF-APPELLEE was served by
first class mail postage prepaid on counsel of record at the following address
Joan E Morgan 2057 Orchard Lake Road Sylvan Lake MI 48320
DIRK C PHILLIPS Attorney
APPELLEErsquoS DESIGNATION OF APPENDIX CONTENTS
APPELLEErsquoS DESIGNATION OF APPENDIX CONTENTS
Appellee United States of America designates the following items to be
review by this Court when he elicited allegedly inadmissible testimony during
cross-examination of a government witness
2 Whether in the absence of invited error the district court committed
plain error by not acting sua sponte to prevent defendantrsquos trial counsel from
eliciting the challenged testimony
3 Whether the record is sufficient to permit this Court to address
defendantrsquos claim of ineffective assistance of counsel and if so whether the claim
has merit
STATEMENT OF THE CASE
On January 5 2006 a federal grand jury returned an indictment charging
defendant Wayland Mullins and a co-conspirator Michael Richardson with
conspiracy against rights in violation of 18 USC 241 (Count I) interference with
housing rights in violation of 42 USC 3631(a) and 18 USC 2 (Count II) use of
fire in the commission of a felony in violation of 18 USC 2 and 18 USC
844(h)(1) (Count III) and conspiracy to obstruct justice in violation of 18 USC
371 (Count IV) (R 1 at 1-8 Apx ___)1 Richardson pled guilty to all four
1 Citations to ldquoR rdquo refer to documents in the district court record Citations to ldquoR __rdquo refer to notations in the district court record for which there is no docket number Citations to ldquo Tr rdquo refer by date and page number to the trial transcript Citations to ldquoBr rdquo refer to Defendant-Appellantrsquos Proof
(continued)
-3shy
counts on September 21 2006 (R 92106 plea hearing) Defendant went to
trial on these charges in November 2006 but the jury was unable to reach a
verdict The district court declared a mistrial on November 17 2006 (R
111706 declaration of mistrial)
On December 14 2006 a federal grand jury returned a superseding
indictment charging defendant and another co-conspirator Ricky Cotton with the
same four counts described above Cotton pled guilty to Count I on April 12
2007 (R 41207 plea hearing) Defendant again proceeded to trial and on
April 20 2007 was convicted on all four counts (R 70 Apx __)
On August 28 2007 the district court sentenced defendant to 207 monthsrsquo
imprisonment and ordered him to pay $12400 in restitution (R 78 at 3-6 Apx
___) This appeal followed
STATEMENT OF THE FACTS
From the evidence presented at trial the jury reasonably could have found
the following facts which are set forth in the light most favorable to the
government
1(continued)
Brief On Appeal
-4shy
1 General Background
In 2002 Reginald Doster and his family purchased a home located at 5948
Ziegler Street in Taylor Michigan They made a down payment in February with
the understanding that the transaction would not close until July (Doster 417 Tr
125 138 Apx __) Between February 2002 and July 2002 the Dosters worked to
refurbish the property (Doster 417 Tr 125-126 Apx __) They finished this
process on or about July 28 2002 moved in during the latter part of October
2002 and lived there until approximately August 2005 (Doster 417 Tr 123
131-133 149-150 154 Apx __) Beginning before they moved in and continuing
throughout the time they lived on Ziegler Street the Dosters who are African-
American were the subject of racial slurs and racially-motivated actions by some
of their neighbors
2 Defendantrsquos Reaction To The Dostersrsquo Purchase Of The Ziegler Property
The Doster home was located across the street from the home in which
defendant grew up and in which his mother and other relatives still live (Doster
As such the Dostersrsquo purchase of and efforts to refurbish the house across
the street from the Mullins home did not go unnoticed by defendant or certain
other members of the neighborhood Indeed it was a topic of conversation among
those who were not happy about an African-American family moving into the
neighborhood (Daniely 418 Tr 17-18 Apx __)
During the period in which the Dosters were refurbishing the property
defendant made comments to friends regarding his desire to drive the Dosters from
the neighborhood One such incident occurred during the middle part of July
2002 (Wurts 417 Tr 208-209 Apx __) Defendant and a friend Guy Wurts
were standing in the back of Wurtsrsquo pickup truck which was parked in front of the
Mullins home (Wurts 417 Tr 202 Apx __) The Dosters were out working in
their yard at the time (Wurts 417 Tr 202-203 209 Apx __) Defendant said
something to the effect of ldquoI got to get rid of these niggers Irsquoll find something to
do I donrsquot know what I got to get these niggers out [of] the neighborhoodrdquo
(Wurts 417 Tr 209 Apx __)2 Defendant was looking in the Dostersrsquo direction
2 Similar descriptions of defendantrsquos statements appear elsewhere in Wurtsrsquo testimony (Wurts 417 Tr 201-202 209 260 Apx __)
-6shy
when he made these comments and said the word ldquoniggerrdquo loud enough for the
Dosters to hear it (Wurts 417 Tr 209-210 Apx __) Wurts testified that
defendant was a racist and that defendant ldquoseemed seriousrdquo when he made these
statements (Wurts 417 Tr 239-240 259-260 Apx __)
Debbie Daniely a neighbor and friend of the Mullins family (Daniely 418
Tr 6-8 Apx __) recounted similar statements by defendant Defendant told
Daniely more than once that he was very upset about the Dosters moving into the
neighborhood (Daniely 418 Tr 22 Apx __) She testified that defendant said
something to the effect of ldquoniggers are moving inrdquo and ldquo[w]e have to do something
about itrdquo (Daniely 418 Tr 23 Apx __)3 She believed he was serious when he
said such things (Daniely 418 Tr 25 Apx __)
3 The Fire
During the afternoon of Sunday July 28 2002 defendant along with Lee
Vanderlinden Don Flowers Chuck Proctor Michael Richardson and Ricky
Cotton4 were working in the yard of a neighbor Ann Hixon (Richardson 418
3 Defendant later admitted to the FBI that he made such a statement to Daniely (Rees 418 Tr 203 Apx __)
4 Lee Vanderlinden was the boyfriend of defendantrsquos mother and has lived in the Mullins home since at least 1996 or 1997 (Wurts 417 Tr 197-198 Apx __) Don Flowers was a friend of the Mullins family who often would socialize
(continued)
-7shy
Tr 56-58 Apx __)5 A group that included defendant Richardson Vanderlinden
Flowers and Cotton began making comments about ldquothe niggers next doorrdquo
(Richardson 418 Tr 58-59 Apx __) Richardson suggested burning a cross in
order to drive the Dosters away (Richardson 418 Tr 61 Apx __) Defendant
however went further suggesting they ldquo[t]orch the houserdquo and told the others to
come back later that night (Richardson 418 Tr 62-63 Apx __) Richardson
Vanderlinden Cotton and Flowers returned that evening and met defendant at the
Mullins home across the street from the Dosters (Richardson 418 Tr 63 Apx
__)6 They discussed ldquo[t]orchingrdquo the Doster home and all were in favor of doing
4(continued)
with Lee Vanderlinden at the Mullins home (Church 419 Tr 58-59 Apx __) Chuck Proctor worked with Lee Vanderlinden and often would hang around the Mullins home (Wurts 417 Tr 199-200 Apx __ Church 419 Tr 57-58 Apx __) Michael Richardson was a good friend of defendant who spent a lot of time at the Mullins home (Wurts 417 Tr 201 Apx __) Ricky Cotton lived nearby and also was a regular at the Mullins home (Wurts 417 Tr 200-201 Apx __) As noted above Richardson and Cotton both pled guilty in this case (R 92106 and 41207 plea hearings)
5 Ann Hixon was called by the defense and testified that this gathering could not have taken place on Sunday July 28 She testified that it occurred sometime during the Spring (she could not recall which year) and that it could not have been a Sunday because she always works on Sundays (Hixon 419 Tr 37shy38 Apx __)
Defendantrsquos aunt Casie Church lives in the Mullins home and was called to testify by defendant She stated that she was sitting on the front porch of the house during the late evening and early morning hours of July 28 and 29
(continued)
6
-8shy
so (Richardson 418 Tr 63 Apx __) Each of them encouraged defendant by
ldquo[e]gging him onrdquo and by ldquo[d]aringrdquo and ldquo[i]ncitingrdquo him to do so (Richardson
418 Tr 64 Apx __)
Defendant took a can of gasoline from the garage of the Mullins home and
went to the back of the Doster home (Richardson 418 Tr 64-65 Apx __)
Richardson Cotton Flowers and Vanderlinden served as lookouts with
Richardson following defendant to the Doster home and the other three remaining
across the street (Richardson 418 Tr 64-65 Apx __) Upon reaching the back
of the Doster home defendant either pried open or broke a window and poured
gasoline inside the house and on the windowsill (Richardson 418 Tr 65 111shy
114 Apx __)7 He then started the fire by holding a lighter up to the windowsill
and blowing until it ignited (Richardson 418 Tr 113 Apx __) Once the fire
was lit defendant and Richardson ran back across the street to join the others
where they celebrated and congratulated defendant (Richardson 418 Tr 65-66
6(continued)
(Church 419 Tr 45 Apx __) She testified that there was no one near the garage of the Mullins home during this time (Church 419 Tr 45 Apx __) But she stated that she did see someone named Mike sometime between 10 pm and 3 am (Church 419 Tr 45-46 Apx __)
7 Richardsonrsquos testimony indicates that it may have been a mixture of oil and gasoline (Richardson 418 Tr 65 Apx __)
-9shy
114-115 Apx __) Richardson testified that defendant set the fire because of the
Dostersrsquo race (Richardson 418 Tr 82 Apx __)
The Dosters had not yet moved into the Ziegler property and therefore were
not home at the time of the fire They had spent Sunday July 28 painting the
Ziegler property and left sometime between 7 pm and 8 pm (Doster 417 Tr
129 167-168 Apx __) Reginald Doster discovered there had been a fire when
he along with his wife and ten-year-old daughter returned to the home between 7
am and 9 am the next morning by which time the fire had burned out (Doster
doctrine recognizes that a court cannot be asked by counsel to take a step in a case
and later be convicted of error because it has complied with such requestrdquo)
(citation and internal quotations omitted) ldquoThis doctrine is a branch of the
doctrine of waiver by which courts prevent a party from inducing an erroneous
ruling and later seeking to profit from the legal consequences by having the
verdict vacatedrdquo Barrow 118 F3d at 490-491
Some courts have held that the existence of invited error forecloses any
-20shy
review ndash even for plain error See eg United States v Baker 432 F3d 1189
1216 (11th Cir 2005) cert denied 547 US 1085 (2006) (ldquoIt is a cardinal rule of
appellate review that a party may not challenge as error a ruling or other trial
proceeding invited by that party Where invited error exists it precludes a
court from invoking the plain error rule and reversingrdquo) United States v Fulford
980 F2d 1110 1116 (7th Cir 1992) (ldquoIt is well-settled that where error is invited
not even plain error permits reversalrdquo) This Court however has recognized an
exception holding that ldquo[i]nvited error does not foreclose relief when the
interests of justice demand otherwiserdquo Barrow 118 F3d at 491 In this Circuit
the question ldquo[w]hether the circumstances of a particular case justify deviation
from the normal rule of waiver under this doctrine is left largely to the discretion
of the appellate courtrdquo Ibid Nevertheless ldquo[u]nder the invited error doctrine an
error introduced by the complaining party will cause reversal only in the most
exceptional situationrdquo United States v Tandon 111 F3d 482 489 (6th Cir
1997) (citation and internal quotations omitted)
C Any Error By The District Court In Permitting The Challenged Statements Was Invited Error And Therefore Should Not Be Reviewed By This Court
Here all of the challenged statements were elicited by defendantrsquos retained
trial counsel Br 15-24 This plainly constitutes invited error See United States
-21shy
v Parikh 858 F2d 688 695 (11th Cir 1988) (ldquoWe hold that the admission of out
of court statements by a government witness when responding to an inquiry by
defense counsel creates lsquoinvited errorrsquordquo) See also Baker 432 F3d at 1215-1216
(defendant ldquocannot now complain about the district courtrsquos errorrdquo where his
counsel ldquoinvited the errorrdquo by eliciting hearsay during cross-examination) United
States v Neal 78 F3d 901 904 (4th Cir 1996) (defendant ldquoinvited the errorrdquo and
it therefore ldquoprovides no basis for reversalrdquo where ldquo[a]t trial [defendant] did not
object to any of the statements he now challengesrdquo and ldquomost were elicited by his
own attorney from a government witness during cross-examinationrdquo) United
States v Reyes-Alvarado 963 F2d 1184 1187 (9th Cir 1992) cert denied 506
US 890 (1992) (finding invited error and refusing to reverse where ldquoappellantrsquos
counsel solicited the testimony which he now claims should have been excludedrdquo
and ldquodid not seek to strike this testimony at the time it was givenrdquo)9
As a threshold matter it bears noting that defendant fails to acknowledge
the existence of invited error and makes no argument as to why ldquothe interests of
justicerdquo Barrow 118 F3d at 491 require this Court to refrain from applying the
invited-error doctrine Accordingly defendant has waived any right to invoke the
9 This Court has reached a similar conclusion albeit in an unpublished decision See United States v Ali 38 Fed Appx 220 224 (6th Cir Mar 26 2002) (unpublished)
-22shy
interests-of-justice exception recognized by this Court See United States v
Samour 199 F3d 821 822 n1 (6th Cir 1999) (defendant ldquowaived his right to
argue the applicability of [favorable precedent] by failing to raise the issue on
appealrdquo)
Even if not waived however the interests of justice do not require this
Court to depart from the general rule that relief is foreclosed by invited error The
challenged statements were not the result of mere oversight or an isolated error by
defendantrsquos trial counsel Rather this appears to be a classic example of trial
strategy gone awry ndash not a situation in which failure to reverse contravenes the
interests of justice Indeed in this case the interests of justice weigh in favor of
invoking the invited-error doctrine as defendant presumably sought to benefit
from eliciting the challenged statements and thus should not now be heard to
argue their inadmissibility simply because his strategy failed See Reyes-
Alvarado 963 F2d at 1187 (ldquoFrom the transcript it appears that counsel thought
his pursuit of this line of questioning might benefit his client His tactics
backfired and his client was convicted A defendant cannot have it both
ways This was invited error and therefore not grounds for reversalrdquo)
Moreover the governmentrsquos trial counsel showed an abundance of caution
by specifically raising the issue and asking whether it should be discussed at
-23shy
sidebar10 This too weighs against a finding that the interests of justice require
reversal See Neal 78 F3d at 904 (ldquoAt one point the prosecutor even tried to
warn [defendantrsquos] attorney about pursuing a line of questioning relating to the
defendantrsquos prior conduct but [defendantrsquos] attorney persisted Under these
circumstances [defendant] cannot complain of error which he himself has
invitedrdquo) (citation and internal quotations omitted)
Simply put this case precisely illustrates both the purpose behind the
10 The following exchange occurred when defense counsel elicited statements from the witness regarding what Ricky Cotton told the government
[Defense Counsel] Just tell us what Ricky Cotton said and let me -shytell us what obviously is hearsay Irsquoll sit down Tell us what Ricky Cotton -shy
[Government Counsel] Your Honor should we have a sidebar on this
[The Court] What for
[Government Counsel] Irsquom not sure to figure out where we are
[Defense Counsel] This is where we are what Ricky Cotton said
[The Court] Are you objecting
[Government Counsel] If he doesnrsquot have any objection to the witness saying what Ricky Cotton said thatrsquos fine
[Defense Counsel] Letrsquos go Tell us what Ricky Cotton said
(418 Tr 173-174 Apx __)
-24shy
invited-error doctrine and the need to enforce it strictly Defendantrsquos appeal does
not challenge any action by the government Nor does he take issue with the
district courtrsquos instructions to the jury the sufficiency of the evidence to support
his conviction or the reasonableness of his sentence He also does not contend the
district court improperly ruled on any objection made by his trial counsel Rather
his arguments on appeal arise solely from the actions of his own retained trial
counsel Such claims must be rejected on their face as a contrary rule would
create perverse incentives for defendants to invite some small amount of error in
every trial so as to create grounds for appeal Accordingly this Court should
apply the invited-error doctrine and affirm the judgment below without reaching
the question whether plain error exists
II
THE DISTRICT COURT DID NOT COMMIT PLAIN ERROR IN FAILING TO SUA SPONTE PREVENT DEFENDANTrsquoS TRIAL COUNSEL FROM
ELICITING THE CHALLENGED TESTIMONY
As noted above in Section IA if this Court determines that the invited-
error doctrine does not apply it should review admission of the challenged
statements for plain error United States v Namey 364 F3d 843 846 (6th Cir
2004)
-25shy
A The Plain-Error Doctrine
ldquoThe plain error doctrine mandates reversal only in exceptional
circumstances and only where the error is so plain that the trial judge and
prosecutor were derelict in countenancing itrdquo United States v Gardiner 463 F3d
445 459 (6th Cir 2006) (quoting United States v Carroll 26 F3d 1380 1383
(6th Cir 1994)) It ldquois to be used sparingly only in exceptional circumstances
and solely to avoid a miscarriage of justicerdquo United States v Phillips 516 F3d
479 487 (6th Cir 2008) (quoting United States v Cox 957 F2d 264 267 (6th
Cir 1992))
ldquoTo show plain error a defendant must establish the following (1) error
(2) that is plain and (3) that affects substantial rights If these three conditions are
met an appellate court may then exercise its discretion to notice a forfeited error
but only if (4) the error seriously affects the fairness integrity or public reputation
of judicial proceedingsrdquo United States v Arnold 486 F3d 177 194 (6th Cir
2007) cert denied 128 S Ct 871 (2008) (citation and internal quotations
omitted) ldquoThe phrase lsquoaffects substantial rightsrsquo lsquomeans prejudicial It must have
affected the outcome of the district court proceedingsrsquordquo United States v
(ldquo[I]ssues adverted to in a perfunctory manner unaccompanied by some effort at
developed argumentation are deemed waivedrdquo) (quoting McPherson v Kelsey
125 F3d 989 995-996 (6th Cir 1997))
-27shy
C The Third And Fourth Prongs Of The Plain-Error Doctrine Are Not Satisfied In This Case Because Other Evidence Supporting Defendantrsquos Conviction Is Overwhelming
Even if the issue were fully briefed a finding of plain error would be
improper because defendant cannot satisfy the third or fourth prongs of the
inquiry The third prong of the plain-error inquiry ndash ie the requirement that the
error ldquoaffects substantial rightsrdquo Arnold 486 F3d at 194 by ldquoaffect[ing] the
outcome of the district court proceedingsrdquo Mooneyham 473 F3d at 288 ndash is not
satisfied where the evidence against the defendant is overwhelming See
Mooneyham 473 F3d at 288 United States v Hines 398 F3d 713 718-719 (6th
Cir) cert denied 545 US 1134 (2005)
Likewise the fourth prong of the inquiry ndash ie the requirement that the
error be said to have ldquoseriously affect[ed] the fairness integrity or public
reputation of judicial proceedingsrdquo Arnold 486 F3d at 194 ndash also is not met when
other evidence is ldquooverwhelmingrdquo and ldquoessentially uncontrovertedrdquo See United
States v Cotton 535 US 625 632-633 (2002) Johnson v United States 520
US 461 469-470 (1997) Hines 398 F3d at 718-719 Indeed as both the
Supreme Court and this Court have recognized with regard to the fourth prong of
the inquiry in some cases ldquoit would be the reversal of a conviction which
would have th[e] effectrdquo of ldquoseriously affect[ing] the fairness integrity or public
-28shy
reputation of judicial proceedingsrdquo Johnson 520 US at 470 (internal quotations
omitted) (emphasis added) see also United States v McGhee 119 F3d 422 424shy
425 (6th Cir 1997) This is so because ldquo[r]eversal for error regardless of its effect
on the judgment encourages litigants to abuse the judicial process and bestirs the
public to ridicule itrdquo Johnson 520 US at 470 (citation and internal quotations
omitted) see also McGhee 119 F3d at 424-425
In view of the foregoing courts often cite the presence of overwhelming
evidence as the basis for concluding that a defendant has failed to meet both the
third and fourth prongs of the plain-error inquiry See Hines 398 F3d at 718-719
United States v Dedhia 134 F3d 802 809 (6th Cir) cert denied 523 US 1145
(1998) see also United States v Birk 453 F3d 893 898 (7th Cir 2006) United
States v Taylor 284 F3d 95 102 (1st Cir) cert denied 536 US 933 (2002)
This Court should follow that approach here as there is overwhelming evidence ndash
separate and apart from the challenged statements ndash to support defendantrsquos
conviction Specifically as explained more fully below testimony at trial
established that defendant (1) spoke openly to others during the weeks leading up
to the fire regarding his desire to force the Dosters from the neighborhood (2) was
the one who set the fire (3) confided to a friend afterward that he both set the fire
and performed the lawn job with the intent to drive the Dosters away because of
-29shy
their race and (4) told conflicting stories to the FBI during the course of its
investigation one of which included an admission that he was at least indirectly
involved in setting the fire
1 Defendantrsquos Statements Prior To The Fire
Two witnesses offered detailed accounts of conversations they had with
defendant prior to the date of the fire During these conversations defendant
expressed his desire to drive the Dosters from their home
Guy Wurts testified that in mid-July 2002 Defendant said something to the
effect of ldquoI got to get rid of these niggers Irsquoll find something to do I donrsquot know
what I got to get these niggers out [of] the neighborhoodrdquo (Wurts 417 Tr 208shy
209 Apx __) Wurts testified that defendant looked in the Dostersrsquo direction
when he made these comments and said the word ldquoniggerrdquo loud enough for the
Dosters ndash who were working in their yard at the time ndash to hear it (Wurts 417 Tr
202-203 209-210 Apx __) Wurts further testified that defendant ldquoseemed
seriousrdquo when he made these statements (Wurts 417 Tr 259 Apx __)
Debbie Daniely recounted similar statements by defendant Specifically
defendant told Daniely more than once that he was very upset about the Dosters
moving into the neighborhood saying something to the effect of ldquoniggers are
moving inrdquo and ldquo[w]e have to do something about itrdquo (Daniely 418 Tr 22-25
-30shy
Apx __) Defendant later admitted to the FBI that he made such a statement to
ldquo[t]his Court has lsquoroutinely concluded that such claims are best brought by a
defendant in a post-conviction proceeding under 28 USC sect 2255 so that the
-37shy
parties can develop an adequate record on the issuersquordquo Martinez 430 F3d at 338
(quoting United States v Brown 332 F3d 363 368 (6th Cir 2003)) ldquoThere is
however lsquoa narrow exceptionrsquo to this rule lsquowhen the existing record is adequate to
assess properly the merits of the claimrsquordquo United States v Hynes 467 F3d 951
969 (6th Cir 2006) (quoting United States v Franklin 415 F3d 537 555-556
(6th Cir 2005)) See also United States v Winkle 477 F3d 407 421 (6th Cir
2007) (ldquoThis Court typically will not review a claim of ineffective assistance on
direct appeal except in rare cases where the error is apparent from the existing
recordrdquo) (quoting United States v Lopez-Medina 461 F3d 724 737 (6th Cir
2006))
No basis exists for departing from the general rule against addressing
ineffective-assistance claims on direct appeal As this Court has noted ldquo[t]he trial
process contains a myriad of complex decisions that for strategic reasons are
sound when made but may appear unsound with the benefit of hindsightrdquo United
States v Davis 306 F3d 398 422 (6th Cir 2002) cert denied 537 US 1208
(2003) (quoting United States v Fortson 194 F3d 730 736 (6th Cir 1999))
Moreover ldquo[j]udicial scrutiny of counselrsquos performance must be highly
deferentialrdquo and ldquoa court must indulge a strong presumption that counselrsquos
conduct falls within the wide range of reasonable professional assistancerdquo
-38shy
Strickland v Washington 466 US 668 689 (1984) Thus to establish ineffective
assistance ldquothe defendant must overcome the presumption that under the
circumstances the challenged action lsquomight be considered sound trial strategyrsquordquo
Ibid (quoting Michel v Louisiana 350 US 91 101 (1955))
Here the decision by defendantrsquos retained trial counsel to elicit the
challenged statements during cross-examination of a government witness
undeniably constitutes an element of trial strategy that cannot be analyzed at this
stage of the proceedings In particular because this is a direct appeal there is no
evidence in the record regarding defense counselrsquos trial strategy This Court
repeatedly has refused to review ineffective-assistance claims under such
circumstances See eg Lopez-Medina 461 F3d at 737 (ldquoAbsent evidence
specifically addressing counselrsquos performance we cannot determine whether his
actions reflected a reasoned trial strategyrdquo) United States v Sullivan 431 F3d
976 986 (6th Cir 2005) (ldquoWithout an explanation from trial counsel as to why he
failed to call the alibi witness we have no basis to determine whether this decision
was the result of inadequate representation or reasonable trial strategyrdquo) United
States v Allison 59 F3d 43 47 (6th Cir) cert denied 516 US 1002 (1995)
(ldquo[T]he sparse record before this court does not reveal whether the attorneyrsquos
actions could be considered sound trial strategyrdquo) United States v Snow 48 F3d
-39shy
198 199 (6th Cir 1995) (ldquoThe record before this court simply is insufficient to
show whether the alleged wrongful acts could be considered sound trial
strategyrdquo) Thus defendantrsquos ineffective-assistance claim must be examined ndash if
at all ndash in a separate collateral proceeding brought pursuant to Section 2255
C The Evidence That Is Available In The Record Does Not Support A Finding Of Ineffective Assistance Of Counsel
As stated above the governmentrsquos position is that the current record is not
sufficient to permit this Court to address defendantrsquos ineffective-assistance claim
in this direct appeal However if the Court disagrees ndash or desires in the interest of
judicial economy to address defendantrsquos claim on direct appeal ndash it should reject
the claim because defendant fails to satisfy the second prong of the ineffective-
assistance inquiry11
11 The government does not concede that the first prong of the Strickland inquiry is satisfied in this case Rather as noted above it is not possible to resolve the issue at this point because the record does not indicate precisely what defendantrsquos trial counsel was thinking what his strategy was or why he elected to pursue certain lines of questioning In the event that defendant elects to bring a collateral challenge pursuant to Section 2255 the government reserves the right to address the first prong of Strickland inquiry and to further develop its argument as to the second prong The governmentrsquos decision not to do so in this brief is based on the incomplete nature of the record with regard to the Strickland inquiry and should not be construed as a waiver or forfeiture of any arguments relating to defendantrsquos ineffective-assistance claim
-40shy
1 Standard For Establishing Ineffective Assistance Of Counsel
To prove ineffective assistance of counsel under Strickland a defendant
first ldquomust demonstrate that counselrsquos performance fell lsquobelow the objective
standard of reasonablenessrsquordquo Ivory v Jackson 509 F3d 284 294 (6th Cir 2007)
cert denied 128 S Ct 1897 (2008) (quoting Strickland 466 US at 688)) ldquoThe
defendant must then demonstrate that lsquothere is a reasonable probability that but
for counselrsquos unprofessional errors the result of the proceeding would have been
different A reasonable probability is a probability sufficient to undermine the
confidence in the outcomersquordquo Ibid (quoting Strickland 466 US at 694)
Significantly this Court ldquoneed not decide whether defense counsel
performed deficiently if disposing of an ineffective-assistance claim on the ground
of lack of sufficient prejudice would be easierrdquo Hynes 467 F3d at 970 See also
Ivory 509 F3d at 294 (ldquo[A] court need not determine whether counselrsquos
performance was deficient before examining the prejudice suffered by the
defendant as a result of the alleged deficiencies If it is easier to dispose of
an ineffectiveness claim on the ground of lack of sufficient prejudice which we
expect will often be so that course should be followedrdquo) (quoting Strickland 466
US at 697)
-41shy
2 Defendant Is Unable To Demonstrate Sufficient Prejudice And Therefore Cannot Satisfy The Second Prong Of The Inquiry
ldquoTo show prejudice [defendant] must demonstrate that lsquothere is a
reasonable probability that but for counselrsquos unprofessional errors the result of
the proceeding would have been differentrsquordquo Harrison v Motley 478 F3d 750
756 (6th Cir) cert denied 128 S Ct 444 (2007) (quoting Strickland 466 US at
694)) As set forth above in Section IIC the evidence of defendantrsquos guilt is
overwhelming and the result therefore would not have been different absent the
challenged statements This Court repeatedly has determined that the second
prong of the Strickland inquiry is not met under such circumstances See eg
Harrison 478 F3d at 757 (defendant ldquofailed to show that his attorneysrsquo alleged
conflict of interest resulted in prejudicerdquo where ldquothe evidence admitted against
[defendant] at trial was lsquooverwhelmingrsquordquo) Hicks v Collins 384 F3d 204 215
(6th Cir 2004) cert denied 545 US 1155 (2005) (holding that defendant cannot
satisfy the second prong of Strickland where ldquothere was overwhelming evidence of
[defendantrsquos] guiltrdquo) Campbell v United States 364 F3d 727 736 (6th Cir
2004) cert denied 543 US 1119 (2005) (ldquoGiven the overwhelming evidence
establishing [defendantrsquos] guilt we believe that he would not have been able to
show that but for his attorneyrsquos failure to object to the prosecutorrsquos alleged
-42shy
misconduct the result would have been differentrdquo)
Accordingly even if this Court determines that the record is sufficient for it
to address defendantrsquos ineffective-assistance claim on direct appeal it should
reject this claim based on his failure to satisfy the second prong of the Strickland
inquiry
CONCLUSION
For the foregoing reasons this Court should affirm the judgment below
Respectfully submitted
GRACE CHUNG BECKER Acting Assistant Attorney General Civil Rights Division
DIANA K FLYNN DIRK C PHILLIPS Attorneys US Department of Justice Civil Rights Divisions Appellate Section Ben Franklin Station PO Box 14403 Washington DC 20044-4403 (202) 305-4876
CERTIFICATE OF COMPLIANCE
Pursuant to Federal Rule of Appellate Procedure 32(a)(7)(B) I hereby
certify that this brief is proportionally spaced 14-point Times New Roman font
Per WordPerfect 12 software the brief contains 9022 words excluding those
parts exempted by Federal Rule of Appellate Procedure 32(a)(7)(B)(iii)
DIRK C PHILLIPS Attorney
DATED June 18 2008
CERTIFICATE OF SERVICE
I hereby certify that on June 18 2008 a copy of the foregoing PROOF
BRIEF FOR THE UNITED STATES AS PLAINTIFF-APPELLEE was served by
first class mail postage prepaid on counsel of record at the following address
Joan E Morgan 2057 Orchard Lake Road Sylvan Lake MI 48320
DIRK C PHILLIPS Attorney
APPELLEErsquoS DESIGNATION OF APPENDIX CONTENTS
APPELLEErsquoS DESIGNATION OF APPENDIX CONTENTS
Appellee United States of America designates the following items to be
review by this Court when he elicited allegedly inadmissible testimony during
cross-examination of a government witness
2 Whether in the absence of invited error the district court committed
plain error by not acting sua sponte to prevent defendantrsquos trial counsel from
eliciting the challenged testimony
3 Whether the record is sufficient to permit this Court to address
defendantrsquos claim of ineffective assistance of counsel and if so whether the claim
has merit
STATEMENT OF THE CASE
On January 5 2006 a federal grand jury returned an indictment charging
defendant Wayland Mullins and a co-conspirator Michael Richardson with
conspiracy against rights in violation of 18 USC 241 (Count I) interference with
housing rights in violation of 42 USC 3631(a) and 18 USC 2 (Count II) use of
fire in the commission of a felony in violation of 18 USC 2 and 18 USC
844(h)(1) (Count III) and conspiracy to obstruct justice in violation of 18 USC
371 (Count IV) (R 1 at 1-8 Apx ___)1 Richardson pled guilty to all four
1 Citations to ldquoR rdquo refer to documents in the district court record Citations to ldquoR __rdquo refer to notations in the district court record for which there is no docket number Citations to ldquo Tr rdquo refer by date and page number to the trial transcript Citations to ldquoBr rdquo refer to Defendant-Appellantrsquos Proof
(continued)
-3shy
counts on September 21 2006 (R 92106 plea hearing) Defendant went to
trial on these charges in November 2006 but the jury was unable to reach a
verdict The district court declared a mistrial on November 17 2006 (R
111706 declaration of mistrial)
On December 14 2006 a federal grand jury returned a superseding
indictment charging defendant and another co-conspirator Ricky Cotton with the
same four counts described above Cotton pled guilty to Count I on April 12
2007 (R 41207 plea hearing) Defendant again proceeded to trial and on
April 20 2007 was convicted on all four counts (R 70 Apx __)
On August 28 2007 the district court sentenced defendant to 207 monthsrsquo
imprisonment and ordered him to pay $12400 in restitution (R 78 at 3-6 Apx
___) This appeal followed
STATEMENT OF THE FACTS
From the evidence presented at trial the jury reasonably could have found
the following facts which are set forth in the light most favorable to the
government
1(continued)
Brief On Appeal
-4shy
1 General Background
In 2002 Reginald Doster and his family purchased a home located at 5948
Ziegler Street in Taylor Michigan They made a down payment in February with
the understanding that the transaction would not close until July (Doster 417 Tr
125 138 Apx __) Between February 2002 and July 2002 the Dosters worked to
refurbish the property (Doster 417 Tr 125-126 Apx __) They finished this
process on or about July 28 2002 moved in during the latter part of October
2002 and lived there until approximately August 2005 (Doster 417 Tr 123
131-133 149-150 154 Apx __) Beginning before they moved in and continuing
throughout the time they lived on Ziegler Street the Dosters who are African-
American were the subject of racial slurs and racially-motivated actions by some
of their neighbors
2 Defendantrsquos Reaction To The Dostersrsquo Purchase Of The Ziegler Property
The Doster home was located across the street from the home in which
defendant grew up and in which his mother and other relatives still live (Doster
As such the Dostersrsquo purchase of and efforts to refurbish the house across
the street from the Mullins home did not go unnoticed by defendant or certain
other members of the neighborhood Indeed it was a topic of conversation among
those who were not happy about an African-American family moving into the
neighborhood (Daniely 418 Tr 17-18 Apx __)
During the period in which the Dosters were refurbishing the property
defendant made comments to friends regarding his desire to drive the Dosters from
the neighborhood One such incident occurred during the middle part of July
2002 (Wurts 417 Tr 208-209 Apx __) Defendant and a friend Guy Wurts
were standing in the back of Wurtsrsquo pickup truck which was parked in front of the
Mullins home (Wurts 417 Tr 202 Apx __) The Dosters were out working in
their yard at the time (Wurts 417 Tr 202-203 209 Apx __) Defendant said
something to the effect of ldquoI got to get rid of these niggers Irsquoll find something to
do I donrsquot know what I got to get these niggers out [of] the neighborhoodrdquo
(Wurts 417 Tr 209 Apx __)2 Defendant was looking in the Dostersrsquo direction
2 Similar descriptions of defendantrsquos statements appear elsewhere in Wurtsrsquo testimony (Wurts 417 Tr 201-202 209 260 Apx __)
-6shy
when he made these comments and said the word ldquoniggerrdquo loud enough for the
Dosters to hear it (Wurts 417 Tr 209-210 Apx __) Wurts testified that
defendant was a racist and that defendant ldquoseemed seriousrdquo when he made these
statements (Wurts 417 Tr 239-240 259-260 Apx __)
Debbie Daniely a neighbor and friend of the Mullins family (Daniely 418
Tr 6-8 Apx __) recounted similar statements by defendant Defendant told
Daniely more than once that he was very upset about the Dosters moving into the
neighborhood (Daniely 418 Tr 22 Apx __) She testified that defendant said
something to the effect of ldquoniggers are moving inrdquo and ldquo[w]e have to do something
about itrdquo (Daniely 418 Tr 23 Apx __)3 She believed he was serious when he
said such things (Daniely 418 Tr 25 Apx __)
3 The Fire
During the afternoon of Sunday July 28 2002 defendant along with Lee
Vanderlinden Don Flowers Chuck Proctor Michael Richardson and Ricky
Cotton4 were working in the yard of a neighbor Ann Hixon (Richardson 418
3 Defendant later admitted to the FBI that he made such a statement to Daniely (Rees 418 Tr 203 Apx __)
4 Lee Vanderlinden was the boyfriend of defendantrsquos mother and has lived in the Mullins home since at least 1996 or 1997 (Wurts 417 Tr 197-198 Apx __) Don Flowers was a friend of the Mullins family who often would socialize
(continued)
-7shy
Tr 56-58 Apx __)5 A group that included defendant Richardson Vanderlinden
Flowers and Cotton began making comments about ldquothe niggers next doorrdquo
(Richardson 418 Tr 58-59 Apx __) Richardson suggested burning a cross in
order to drive the Dosters away (Richardson 418 Tr 61 Apx __) Defendant
however went further suggesting they ldquo[t]orch the houserdquo and told the others to
come back later that night (Richardson 418 Tr 62-63 Apx __) Richardson
Vanderlinden Cotton and Flowers returned that evening and met defendant at the
Mullins home across the street from the Dosters (Richardson 418 Tr 63 Apx
__)6 They discussed ldquo[t]orchingrdquo the Doster home and all were in favor of doing
4(continued)
with Lee Vanderlinden at the Mullins home (Church 419 Tr 58-59 Apx __) Chuck Proctor worked with Lee Vanderlinden and often would hang around the Mullins home (Wurts 417 Tr 199-200 Apx __ Church 419 Tr 57-58 Apx __) Michael Richardson was a good friend of defendant who spent a lot of time at the Mullins home (Wurts 417 Tr 201 Apx __) Ricky Cotton lived nearby and also was a regular at the Mullins home (Wurts 417 Tr 200-201 Apx __) As noted above Richardson and Cotton both pled guilty in this case (R 92106 and 41207 plea hearings)
5 Ann Hixon was called by the defense and testified that this gathering could not have taken place on Sunday July 28 She testified that it occurred sometime during the Spring (she could not recall which year) and that it could not have been a Sunday because she always works on Sundays (Hixon 419 Tr 37shy38 Apx __)
Defendantrsquos aunt Casie Church lives in the Mullins home and was called to testify by defendant She stated that she was sitting on the front porch of the house during the late evening and early morning hours of July 28 and 29
(continued)
6
-8shy
so (Richardson 418 Tr 63 Apx __) Each of them encouraged defendant by
ldquo[e]gging him onrdquo and by ldquo[d]aringrdquo and ldquo[i]ncitingrdquo him to do so (Richardson
418 Tr 64 Apx __)
Defendant took a can of gasoline from the garage of the Mullins home and
went to the back of the Doster home (Richardson 418 Tr 64-65 Apx __)
Richardson Cotton Flowers and Vanderlinden served as lookouts with
Richardson following defendant to the Doster home and the other three remaining
across the street (Richardson 418 Tr 64-65 Apx __) Upon reaching the back
of the Doster home defendant either pried open or broke a window and poured
gasoline inside the house and on the windowsill (Richardson 418 Tr 65 111shy
114 Apx __)7 He then started the fire by holding a lighter up to the windowsill
and blowing until it ignited (Richardson 418 Tr 113 Apx __) Once the fire
was lit defendant and Richardson ran back across the street to join the others
where they celebrated and congratulated defendant (Richardson 418 Tr 65-66
6(continued)
(Church 419 Tr 45 Apx __) She testified that there was no one near the garage of the Mullins home during this time (Church 419 Tr 45 Apx __) But she stated that she did see someone named Mike sometime between 10 pm and 3 am (Church 419 Tr 45-46 Apx __)
7 Richardsonrsquos testimony indicates that it may have been a mixture of oil and gasoline (Richardson 418 Tr 65 Apx __)
-9shy
114-115 Apx __) Richardson testified that defendant set the fire because of the
Dostersrsquo race (Richardson 418 Tr 82 Apx __)
The Dosters had not yet moved into the Ziegler property and therefore were
not home at the time of the fire They had spent Sunday July 28 painting the
Ziegler property and left sometime between 7 pm and 8 pm (Doster 417 Tr
129 167-168 Apx __) Reginald Doster discovered there had been a fire when
he along with his wife and ten-year-old daughter returned to the home between 7
am and 9 am the next morning by which time the fire had burned out (Doster
doctrine recognizes that a court cannot be asked by counsel to take a step in a case
and later be convicted of error because it has complied with such requestrdquo)
(citation and internal quotations omitted) ldquoThis doctrine is a branch of the
doctrine of waiver by which courts prevent a party from inducing an erroneous
ruling and later seeking to profit from the legal consequences by having the
verdict vacatedrdquo Barrow 118 F3d at 490-491
Some courts have held that the existence of invited error forecloses any
-20shy
review ndash even for plain error See eg United States v Baker 432 F3d 1189
1216 (11th Cir 2005) cert denied 547 US 1085 (2006) (ldquoIt is a cardinal rule of
appellate review that a party may not challenge as error a ruling or other trial
proceeding invited by that party Where invited error exists it precludes a
court from invoking the plain error rule and reversingrdquo) United States v Fulford
980 F2d 1110 1116 (7th Cir 1992) (ldquoIt is well-settled that where error is invited
not even plain error permits reversalrdquo) This Court however has recognized an
exception holding that ldquo[i]nvited error does not foreclose relief when the
interests of justice demand otherwiserdquo Barrow 118 F3d at 491 In this Circuit
the question ldquo[w]hether the circumstances of a particular case justify deviation
from the normal rule of waiver under this doctrine is left largely to the discretion
of the appellate courtrdquo Ibid Nevertheless ldquo[u]nder the invited error doctrine an
error introduced by the complaining party will cause reversal only in the most
exceptional situationrdquo United States v Tandon 111 F3d 482 489 (6th Cir
1997) (citation and internal quotations omitted)
C Any Error By The District Court In Permitting The Challenged Statements Was Invited Error And Therefore Should Not Be Reviewed By This Court
Here all of the challenged statements were elicited by defendantrsquos retained
trial counsel Br 15-24 This plainly constitutes invited error See United States
-21shy
v Parikh 858 F2d 688 695 (11th Cir 1988) (ldquoWe hold that the admission of out
of court statements by a government witness when responding to an inquiry by
defense counsel creates lsquoinvited errorrsquordquo) See also Baker 432 F3d at 1215-1216
(defendant ldquocannot now complain about the district courtrsquos errorrdquo where his
counsel ldquoinvited the errorrdquo by eliciting hearsay during cross-examination) United
States v Neal 78 F3d 901 904 (4th Cir 1996) (defendant ldquoinvited the errorrdquo and
it therefore ldquoprovides no basis for reversalrdquo where ldquo[a]t trial [defendant] did not
object to any of the statements he now challengesrdquo and ldquomost were elicited by his
own attorney from a government witness during cross-examinationrdquo) United
States v Reyes-Alvarado 963 F2d 1184 1187 (9th Cir 1992) cert denied 506
US 890 (1992) (finding invited error and refusing to reverse where ldquoappellantrsquos
counsel solicited the testimony which he now claims should have been excludedrdquo
and ldquodid not seek to strike this testimony at the time it was givenrdquo)9
As a threshold matter it bears noting that defendant fails to acknowledge
the existence of invited error and makes no argument as to why ldquothe interests of
justicerdquo Barrow 118 F3d at 491 require this Court to refrain from applying the
invited-error doctrine Accordingly defendant has waived any right to invoke the
9 This Court has reached a similar conclusion albeit in an unpublished decision See United States v Ali 38 Fed Appx 220 224 (6th Cir Mar 26 2002) (unpublished)
-22shy
interests-of-justice exception recognized by this Court See United States v
Samour 199 F3d 821 822 n1 (6th Cir 1999) (defendant ldquowaived his right to
argue the applicability of [favorable precedent] by failing to raise the issue on
appealrdquo)
Even if not waived however the interests of justice do not require this
Court to depart from the general rule that relief is foreclosed by invited error The
challenged statements were not the result of mere oversight or an isolated error by
defendantrsquos trial counsel Rather this appears to be a classic example of trial
strategy gone awry ndash not a situation in which failure to reverse contravenes the
interests of justice Indeed in this case the interests of justice weigh in favor of
invoking the invited-error doctrine as defendant presumably sought to benefit
from eliciting the challenged statements and thus should not now be heard to
argue their inadmissibility simply because his strategy failed See Reyes-
Alvarado 963 F2d at 1187 (ldquoFrom the transcript it appears that counsel thought
his pursuit of this line of questioning might benefit his client His tactics
backfired and his client was convicted A defendant cannot have it both
ways This was invited error and therefore not grounds for reversalrdquo)
Moreover the governmentrsquos trial counsel showed an abundance of caution
by specifically raising the issue and asking whether it should be discussed at
-23shy
sidebar10 This too weighs against a finding that the interests of justice require
reversal See Neal 78 F3d at 904 (ldquoAt one point the prosecutor even tried to
warn [defendantrsquos] attorney about pursuing a line of questioning relating to the
defendantrsquos prior conduct but [defendantrsquos] attorney persisted Under these
circumstances [defendant] cannot complain of error which he himself has
invitedrdquo) (citation and internal quotations omitted)
Simply put this case precisely illustrates both the purpose behind the
10 The following exchange occurred when defense counsel elicited statements from the witness regarding what Ricky Cotton told the government
[Defense Counsel] Just tell us what Ricky Cotton said and let me -shytell us what obviously is hearsay Irsquoll sit down Tell us what Ricky Cotton -shy
[Government Counsel] Your Honor should we have a sidebar on this
[The Court] What for
[Government Counsel] Irsquom not sure to figure out where we are
[Defense Counsel] This is where we are what Ricky Cotton said
[The Court] Are you objecting
[Government Counsel] If he doesnrsquot have any objection to the witness saying what Ricky Cotton said thatrsquos fine
[Defense Counsel] Letrsquos go Tell us what Ricky Cotton said
(418 Tr 173-174 Apx __)
-24shy
invited-error doctrine and the need to enforce it strictly Defendantrsquos appeal does
not challenge any action by the government Nor does he take issue with the
district courtrsquos instructions to the jury the sufficiency of the evidence to support
his conviction or the reasonableness of his sentence He also does not contend the
district court improperly ruled on any objection made by his trial counsel Rather
his arguments on appeal arise solely from the actions of his own retained trial
counsel Such claims must be rejected on their face as a contrary rule would
create perverse incentives for defendants to invite some small amount of error in
every trial so as to create grounds for appeal Accordingly this Court should
apply the invited-error doctrine and affirm the judgment below without reaching
the question whether plain error exists
II
THE DISTRICT COURT DID NOT COMMIT PLAIN ERROR IN FAILING TO SUA SPONTE PREVENT DEFENDANTrsquoS TRIAL COUNSEL FROM
ELICITING THE CHALLENGED TESTIMONY
As noted above in Section IA if this Court determines that the invited-
error doctrine does not apply it should review admission of the challenged
statements for plain error United States v Namey 364 F3d 843 846 (6th Cir
2004)
-25shy
A The Plain-Error Doctrine
ldquoThe plain error doctrine mandates reversal only in exceptional
circumstances and only where the error is so plain that the trial judge and
prosecutor were derelict in countenancing itrdquo United States v Gardiner 463 F3d
445 459 (6th Cir 2006) (quoting United States v Carroll 26 F3d 1380 1383
(6th Cir 1994)) It ldquois to be used sparingly only in exceptional circumstances
and solely to avoid a miscarriage of justicerdquo United States v Phillips 516 F3d
479 487 (6th Cir 2008) (quoting United States v Cox 957 F2d 264 267 (6th
Cir 1992))
ldquoTo show plain error a defendant must establish the following (1) error
(2) that is plain and (3) that affects substantial rights If these three conditions are
met an appellate court may then exercise its discretion to notice a forfeited error
but only if (4) the error seriously affects the fairness integrity or public reputation
of judicial proceedingsrdquo United States v Arnold 486 F3d 177 194 (6th Cir
2007) cert denied 128 S Ct 871 (2008) (citation and internal quotations
omitted) ldquoThe phrase lsquoaffects substantial rightsrsquo lsquomeans prejudicial It must have
affected the outcome of the district court proceedingsrsquordquo United States v
(ldquo[I]ssues adverted to in a perfunctory manner unaccompanied by some effort at
developed argumentation are deemed waivedrdquo) (quoting McPherson v Kelsey
125 F3d 989 995-996 (6th Cir 1997))
-27shy
C The Third And Fourth Prongs Of The Plain-Error Doctrine Are Not Satisfied In This Case Because Other Evidence Supporting Defendantrsquos Conviction Is Overwhelming
Even if the issue were fully briefed a finding of plain error would be
improper because defendant cannot satisfy the third or fourth prongs of the
inquiry The third prong of the plain-error inquiry ndash ie the requirement that the
error ldquoaffects substantial rightsrdquo Arnold 486 F3d at 194 by ldquoaffect[ing] the
outcome of the district court proceedingsrdquo Mooneyham 473 F3d at 288 ndash is not
satisfied where the evidence against the defendant is overwhelming See
Mooneyham 473 F3d at 288 United States v Hines 398 F3d 713 718-719 (6th
Cir) cert denied 545 US 1134 (2005)
Likewise the fourth prong of the inquiry ndash ie the requirement that the
error be said to have ldquoseriously affect[ed] the fairness integrity or public
reputation of judicial proceedingsrdquo Arnold 486 F3d at 194 ndash also is not met when
other evidence is ldquooverwhelmingrdquo and ldquoessentially uncontrovertedrdquo See United
States v Cotton 535 US 625 632-633 (2002) Johnson v United States 520
US 461 469-470 (1997) Hines 398 F3d at 718-719 Indeed as both the
Supreme Court and this Court have recognized with regard to the fourth prong of
the inquiry in some cases ldquoit would be the reversal of a conviction which
would have th[e] effectrdquo of ldquoseriously affect[ing] the fairness integrity or public
-28shy
reputation of judicial proceedingsrdquo Johnson 520 US at 470 (internal quotations
omitted) (emphasis added) see also United States v McGhee 119 F3d 422 424shy
425 (6th Cir 1997) This is so because ldquo[r]eversal for error regardless of its effect
on the judgment encourages litigants to abuse the judicial process and bestirs the
public to ridicule itrdquo Johnson 520 US at 470 (citation and internal quotations
omitted) see also McGhee 119 F3d at 424-425
In view of the foregoing courts often cite the presence of overwhelming
evidence as the basis for concluding that a defendant has failed to meet both the
third and fourth prongs of the plain-error inquiry See Hines 398 F3d at 718-719
United States v Dedhia 134 F3d 802 809 (6th Cir) cert denied 523 US 1145
(1998) see also United States v Birk 453 F3d 893 898 (7th Cir 2006) United
States v Taylor 284 F3d 95 102 (1st Cir) cert denied 536 US 933 (2002)
This Court should follow that approach here as there is overwhelming evidence ndash
separate and apart from the challenged statements ndash to support defendantrsquos
conviction Specifically as explained more fully below testimony at trial
established that defendant (1) spoke openly to others during the weeks leading up
to the fire regarding his desire to force the Dosters from the neighborhood (2) was
the one who set the fire (3) confided to a friend afterward that he both set the fire
and performed the lawn job with the intent to drive the Dosters away because of
-29shy
their race and (4) told conflicting stories to the FBI during the course of its
investigation one of which included an admission that he was at least indirectly
involved in setting the fire
1 Defendantrsquos Statements Prior To The Fire
Two witnesses offered detailed accounts of conversations they had with
defendant prior to the date of the fire During these conversations defendant
expressed his desire to drive the Dosters from their home
Guy Wurts testified that in mid-July 2002 Defendant said something to the
effect of ldquoI got to get rid of these niggers Irsquoll find something to do I donrsquot know
what I got to get these niggers out [of] the neighborhoodrdquo (Wurts 417 Tr 208shy
209 Apx __) Wurts testified that defendant looked in the Dostersrsquo direction
when he made these comments and said the word ldquoniggerrdquo loud enough for the
Dosters ndash who were working in their yard at the time ndash to hear it (Wurts 417 Tr
202-203 209-210 Apx __) Wurts further testified that defendant ldquoseemed
seriousrdquo when he made these statements (Wurts 417 Tr 259 Apx __)
Debbie Daniely recounted similar statements by defendant Specifically
defendant told Daniely more than once that he was very upset about the Dosters
moving into the neighborhood saying something to the effect of ldquoniggers are
moving inrdquo and ldquo[w]e have to do something about itrdquo (Daniely 418 Tr 22-25
-30shy
Apx __) Defendant later admitted to the FBI that he made such a statement to
ldquo[t]his Court has lsquoroutinely concluded that such claims are best brought by a
defendant in a post-conviction proceeding under 28 USC sect 2255 so that the
-37shy
parties can develop an adequate record on the issuersquordquo Martinez 430 F3d at 338
(quoting United States v Brown 332 F3d 363 368 (6th Cir 2003)) ldquoThere is
however lsquoa narrow exceptionrsquo to this rule lsquowhen the existing record is adequate to
assess properly the merits of the claimrsquordquo United States v Hynes 467 F3d 951
969 (6th Cir 2006) (quoting United States v Franklin 415 F3d 537 555-556
(6th Cir 2005)) See also United States v Winkle 477 F3d 407 421 (6th Cir
2007) (ldquoThis Court typically will not review a claim of ineffective assistance on
direct appeal except in rare cases where the error is apparent from the existing
recordrdquo) (quoting United States v Lopez-Medina 461 F3d 724 737 (6th Cir
2006))
No basis exists for departing from the general rule against addressing
ineffective-assistance claims on direct appeal As this Court has noted ldquo[t]he trial
process contains a myriad of complex decisions that for strategic reasons are
sound when made but may appear unsound with the benefit of hindsightrdquo United
States v Davis 306 F3d 398 422 (6th Cir 2002) cert denied 537 US 1208
(2003) (quoting United States v Fortson 194 F3d 730 736 (6th Cir 1999))
Moreover ldquo[j]udicial scrutiny of counselrsquos performance must be highly
deferentialrdquo and ldquoa court must indulge a strong presumption that counselrsquos
conduct falls within the wide range of reasonable professional assistancerdquo
-38shy
Strickland v Washington 466 US 668 689 (1984) Thus to establish ineffective
assistance ldquothe defendant must overcome the presumption that under the
circumstances the challenged action lsquomight be considered sound trial strategyrsquordquo
Ibid (quoting Michel v Louisiana 350 US 91 101 (1955))
Here the decision by defendantrsquos retained trial counsel to elicit the
challenged statements during cross-examination of a government witness
undeniably constitutes an element of trial strategy that cannot be analyzed at this
stage of the proceedings In particular because this is a direct appeal there is no
evidence in the record regarding defense counselrsquos trial strategy This Court
repeatedly has refused to review ineffective-assistance claims under such
circumstances See eg Lopez-Medina 461 F3d at 737 (ldquoAbsent evidence
specifically addressing counselrsquos performance we cannot determine whether his
actions reflected a reasoned trial strategyrdquo) United States v Sullivan 431 F3d
976 986 (6th Cir 2005) (ldquoWithout an explanation from trial counsel as to why he
failed to call the alibi witness we have no basis to determine whether this decision
was the result of inadequate representation or reasonable trial strategyrdquo) United
States v Allison 59 F3d 43 47 (6th Cir) cert denied 516 US 1002 (1995)
(ldquo[T]he sparse record before this court does not reveal whether the attorneyrsquos
actions could be considered sound trial strategyrdquo) United States v Snow 48 F3d
-39shy
198 199 (6th Cir 1995) (ldquoThe record before this court simply is insufficient to
show whether the alleged wrongful acts could be considered sound trial
strategyrdquo) Thus defendantrsquos ineffective-assistance claim must be examined ndash if
at all ndash in a separate collateral proceeding brought pursuant to Section 2255
C The Evidence That Is Available In The Record Does Not Support A Finding Of Ineffective Assistance Of Counsel
As stated above the governmentrsquos position is that the current record is not
sufficient to permit this Court to address defendantrsquos ineffective-assistance claim
in this direct appeal However if the Court disagrees ndash or desires in the interest of
judicial economy to address defendantrsquos claim on direct appeal ndash it should reject
the claim because defendant fails to satisfy the second prong of the ineffective-
assistance inquiry11
11 The government does not concede that the first prong of the Strickland inquiry is satisfied in this case Rather as noted above it is not possible to resolve the issue at this point because the record does not indicate precisely what defendantrsquos trial counsel was thinking what his strategy was or why he elected to pursue certain lines of questioning In the event that defendant elects to bring a collateral challenge pursuant to Section 2255 the government reserves the right to address the first prong of Strickland inquiry and to further develop its argument as to the second prong The governmentrsquos decision not to do so in this brief is based on the incomplete nature of the record with regard to the Strickland inquiry and should not be construed as a waiver or forfeiture of any arguments relating to defendantrsquos ineffective-assistance claim
-40shy
1 Standard For Establishing Ineffective Assistance Of Counsel
To prove ineffective assistance of counsel under Strickland a defendant
first ldquomust demonstrate that counselrsquos performance fell lsquobelow the objective
standard of reasonablenessrsquordquo Ivory v Jackson 509 F3d 284 294 (6th Cir 2007)
cert denied 128 S Ct 1897 (2008) (quoting Strickland 466 US at 688)) ldquoThe
defendant must then demonstrate that lsquothere is a reasonable probability that but
for counselrsquos unprofessional errors the result of the proceeding would have been
different A reasonable probability is a probability sufficient to undermine the
confidence in the outcomersquordquo Ibid (quoting Strickland 466 US at 694)
Significantly this Court ldquoneed not decide whether defense counsel
performed deficiently if disposing of an ineffective-assistance claim on the ground
of lack of sufficient prejudice would be easierrdquo Hynes 467 F3d at 970 See also
Ivory 509 F3d at 294 (ldquo[A] court need not determine whether counselrsquos
performance was deficient before examining the prejudice suffered by the
defendant as a result of the alleged deficiencies If it is easier to dispose of
an ineffectiveness claim on the ground of lack of sufficient prejudice which we
expect will often be so that course should be followedrdquo) (quoting Strickland 466
US at 697)
-41shy
2 Defendant Is Unable To Demonstrate Sufficient Prejudice And Therefore Cannot Satisfy The Second Prong Of The Inquiry
ldquoTo show prejudice [defendant] must demonstrate that lsquothere is a
reasonable probability that but for counselrsquos unprofessional errors the result of
the proceeding would have been differentrsquordquo Harrison v Motley 478 F3d 750
756 (6th Cir) cert denied 128 S Ct 444 (2007) (quoting Strickland 466 US at
694)) As set forth above in Section IIC the evidence of defendantrsquos guilt is
overwhelming and the result therefore would not have been different absent the
challenged statements This Court repeatedly has determined that the second
prong of the Strickland inquiry is not met under such circumstances See eg
Harrison 478 F3d at 757 (defendant ldquofailed to show that his attorneysrsquo alleged
conflict of interest resulted in prejudicerdquo where ldquothe evidence admitted against
[defendant] at trial was lsquooverwhelmingrsquordquo) Hicks v Collins 384 F3d 204 215
(6th Cir 2004) cert denied 545 US 1155 (2005) (holding that defendant cannot
satisfy the second prong of Strickland where ldquothere was overwhelming evidence of
[defendantrsquos] guiltrdquo) Campbell v United States 364 F3d 727 736 (6th Cir
2004) cert denied 543 US 1119 (2005) (ldquoGiven the overwhelming evidence
establishing [defendantrsquos] guilt we believe that he would not have been able to
show that but for his attorneyrsquos failure to object to the prosecutorrsquos alleged
-42shy
misconduct the result would have been differentrdquo)
Accordingly even if this Court determines that the record is sufficient for it
to address defendantrsquos ineffective-assistance claim on direct appeal it should
reject this claim based on his failure to satisfy the second prong of the Strickland
inquiry
CONCLUSION
For the foregoing reasons this Court should affirm the judgment below
Respectfully submitted
GRACE CHUNG BECKER Acting Assistant Attorney General Civil Rights Division
DIANA K FLYNN DIRK C PHILLIPS Attorneys US Department of Justice Civil Rights Divisions Appellate Section Ben Franklin Station PO Box 14403 Washington DC 20044-4403 (202) 305-4876
CERTIFICATE OF COMPLIANCE
Pursuant to Federal Rule of Appellate Procedure 32(a)(7)(B) I hereby
certify that this brief is proportionally spaced 14-point Times New Roman font
Per WordPerfect 12 software the brief contains 9022 words excluding those
parts exempted by Federal Rule of Appellate Procedure 32(a)(7)(B)(iii)
DIRK C PHILLIPS Attorney
DATED June 18 2008
CERTIFICATE OF SERVICE
I hereby certify that on June 18 2008 a copy of the foregoing PROOF
BRIEF FOR THE UNITED STATES AS PLAINTIFF-APPELLEE was served by
first class mail postage prepaid on counsel of record at the following address
Joan E Morgan 2057 Orchard Lake Road Sylvan Lake MI 48320
DIRK C PHILLIPS Attorney
APPELLEErsquoS DESIGNATION OF APPENDIX CONTENTS
APPELLEErsquoS DESIGNATION OF APPENDIX CONTENTS
Appellee United States of America designates the following items to be
review by this Court when he elicited allegedly inadmissible testimony during
cross-examination of a government witness
2 Whether in the absence of invited error the district court committed
plain error by not acting sua sponte to prevent defendantrsquos trial counsel from
eliciting the challenged testimony
3 Whether the record is sufficient to permit this Court to address
defendantrsquos claim of ineffective assistance of counsel and if so whether the claim
has merit
STATEMENT OF THE CASE
On January 5 2006 a federal grand jury returned an indictment charging
defendant Wayland Mullins and a co-conspirator Michael Richardson with
conspiracy against rights in violation of 18 USC 241 (Count I) interference with
housing rights in violation of 42 USC 3631(a) and 18 USC 2 (Count II) use of
fire in the commission of a felony in violation of 18 USC 2 and 18 USC
844(h)(1) (Count III) and conspiracy to obstruct justice in violation of 18 USC
371 (Count IV) (R 1 at 1-8 Apx ___)1 Richardson pled guilty to all four
1 Citations to ldquoR rdquo refer to documents in the district court record Citations to ldquoR __rdquo refer to notations in the district court record for which there is no docket number Citations to ldquo Tr rdquo refer by date and page number to the trial transcript Citations to ldquoBr rdquo refer to Defendant-Appellantrsquos Proof
(continued)
-3shy
counts on September 21 2006 (R 92106 plea hearing) Defendant went to
trial on these charges in November 2006 but the jury was unable to reach a
verdict The district court declared a mistrial on November 17 2006 (R
111706 declaration of mistrial)
On December 14 2006 a federal grand jury returned a superseding
indictment charging defendant and another co-conspirator Ricky Cotton with the
same four counts described above Cotton pled guilty to Count I on April 12
2007 (R 41207 plea hearing) Defendant again proceeded to trial and on
April 20 2007 was convicted on all four counts (R 70 Apx __)
On August 28 2007 the district court sentenced defendant to 207 monthsrsquo
imprisonment and ordered him to pay $12400 in restitution (R 78 at 3-6 Apx
___) This appeal followed
STATEMENT OF THE FACTS
From the evidence presented at trial the jury reasonably could have found
the following facts which are set forth in the light most favorable to the
government
1(continued)
Brief On Appeal
-4shy
1 General Background
In 2002 Reginald Doster and his family purchased a home located at 5948
Ziegler Street in Taylor Michigan They made a down payment in February with
the understanding that the transaction would not close until July (Doster 417 Tr
125 138 Apx __) Between February 2002 and July 2002 the Dosters worked to
refurbish the property (Doster 417 Tr 125-126 Apx __) They finished this
process on or about July 28 2002 moved in during the latter part of October
2002 and lived there until approximately August 2005 (Doster 417 Tr 123
131-133 149-150 154 Apx __) Beginning before they moved in and continuing
throughout the time they lived on Ziegler Street the Dosters who are African-
American were the subject of racial slurs and racially-motivated actions by some
of their neighbors
2 Defendantrsquos Reaction To The Dostersrsquo Purchase Of The Ziegler Property
The Doster home was located across the street from the home in which
defendant grew up and in which his mother and other relatives still live (Doster
As such the Dostersrsquo purchase of and efforts to refurbish the house across
the street from the Mullins home did not go unnoticed by defendant or certain
other members of the neighborhood Indeed it was a topic of conversation among
those who were not happy about an African-American family moving into the
neighborhood (Daniely 418 Tr 17-18 Apx __)
During the period in which the Dosters were refurbishing the property
defendant made comments to friends regarding his desire to drive the Dosters from
the neighborhood One such incident occurred during the middle part of July
2002 (Wurts 417 Tr 208-209 Apx __) Defendant and a friend Guy Wurts
were standing in the back of Wurtsrsquo pickup truck which was parked in front of the
Mullins home (Wurts 417 Tr 202 Apx __) The Dosters were out working in
their yard at the time (Wurts 417 Tr 202-203 209 Apx __) Defendant said
something to the effect of ldquoI got to get rid of these niggers Irsquoll find something to
do I donrsquot know what I got to get these niggers out [of] the neighborhoodrdquo
(Wurts 417 Tr 209 Apx __)2 Defendant was looking in the Dostersrsquo direction
2 Similar descriptions of defendantrsquos statements appear elsewhere in Wurtsrsquo testimony (Wurts 417 Tr 201-202 209 260 Apx __)
-6shy
when he made these comments and said the word ldquoniggerrdquo loud enough for the
Dosters to hear it (Wurts 417 Tr 209-210 Apx __) Wurts testified that
defendant was a racist and that defendant ldquoseemed seriousrdquo when he made these
statements (Wurts 417 Tr 239-240 259-260 Apx __)
Debbie Daniely a neighbor and friend of the Mullins family (Daniely 418
Tr 6-8 Apx __) recounted similar statements by defendant Defendant told
Daniely more than once that he was very upset about the Dosters moving into the
neighborhood (Daniely 418 Tr 22 Apx __) She testified that defendant said
something to the effect of ldquoniggers are moving inrdquo and ldquo[w]e have to do something
about itrdquo (Daniely 418 Tr 23 Apx __)3 She believed he was serious when he
said such things (Daniely 418 Tr 25 Apx __)
3 The Fire
During the afternoon of Sunday July 28 2002 defendant along with Lee
Vanderlinden Don Flowers Chuck Proctor Michael Richardson and Ricky
Cotton4 were working in the yard of a neighbor Ann Hixon (Richardson 418
3 Defendant later admitted to the FBI that he made such a statement to Daniely (Rees 418 Tr 203 Apx __)
4 Lee Vanderlinden was the boyfriend of defendantrsquos mother and has lived in the Mullins home since at least 1996 or 1997 (Wurts 417 Tr 197-198 Apx __) Don Flowers was a friend of the Mullins family who often would socialize
(continued)
-7shy
Tr 56-58 Apx __)5 A group that included defendant Richardson Vanderlinden
Flowers and Cotton began making comments about ldquothe niggers next doorrdquo
(Richardson 418 Tr 58-59 Apx __) Richardson suggested burning a cross in
order to drive the Dosters away (Richardson 418 Tr 61 Apx __) Defendant
however went further suggesting they ldquo[t]orch the houserdquo and told the others to
come back later that night (Richardson 418 Tr 62-63 Apx __) Richardson
Vanderlinden Cotton and Flowers returned that evening and met defendant at the
Mullins home across the street from the Dosters (Richardson 418 Tr 63 Apx
__)6 They discussed ldquo[t]orchingrdquo the Doster home and all were in favor of doing
4(continued)
with Lee Vanderlinden at the Mullins home (Church 419 Tr 58-59 Apx __) Chuck Proctor worked with Lee Vanderlinden and often would hang around the Mullins home (Wurts 417 Tr 199-200 Apx __ Church 419 Tr 57-58 Apx __) Michael Richardson was a good friend of defendant who spent a lot of time at the Mullins home (Wurts 417 Tr 201 Apx __) Ricky Cotton lived nearby and also was a regular at the Mullins home (Wurts 417 Tr 200-201 Apx __) As noted above Richardson and Cotton both pled guilty in this case (R 92106 and 41207 plea hearings)
5 Ann Hixon was called by the defense and testified that this gathering could not have taken place on Sunday July 28 She testified that it occurred sometime during the Spring (she could not recall which year) and that it could not have been a Sunday because she always works on Sundays (Hixon 419 Tr 37shy38 Apx __)
Defendantrsquos aunt Casie Church lives in the Mullins home and was called to testify by defendant She stated that she was sitting on the front porch of the house during the late evening and early morning hours of July 28 and 29
(continued)
6
-8shy
so (Richardson 418 Tr 63 Apx __) Each of them encouraged defendant by
ldquo[e]gging him onrdquo and by ldquo[d]aringrdquo and ldquo[i]ncitingrdquo him to do so (Richardson
418 Tr 64 Apx __)
Defendant took a can of gasoline from the garage of the Mullins home and
went to the back of the Doster home (Richardson 418 Tr 64-65 Apx __)
Richardson Cotton Flowers and Vanderlinden served as lookouts with
Richardson following defendant to the Doster home and the other three remaining
across the street (Richardson 418 Tr 64-65 Apx __) Upon reaching the back
of the Doster home defendant either pried open or broke a window and poured
gasoline inside the house and on the windowsill (Richardson 418 Tr 65 111shy
114 Apx __)7 He then started the fire by holding a lighter up to the windowsill
and blowing until it ignited (Richardson 418 Tr 113 Apx __) Once the fire
was lit defendant and Richardson ran back across the street to join the others
where they celebrated and congratulated defendant (Richardson 418 Tr 65-66
6(continued)
(Church 419 Tr 45 Apx __) She testified that there was no one near the garage of the Mullins home during this time (Church 419 Tr 45 Apx __) But she stated that she did see someone named Mike sometime between 10 pm and 3 am (Church 419 Tr 45-46 Apx __)
7 Richardsonrsquos testimony indicates that it may have been a mixture of oil and gasoline (Richardson 418 Tr 65 Apx __)
-9shy
114-115 Apx __) Richardson testified that defendant set the fire because of the
Dostersrsquo race (Richardson 418 Tr 82 Apx __)
The Dosters had not yet moved into the Ziegler property and therefore were
not home at the time of the fire They had spent Sunday July 28 painting the
Ziegler property and left sometime between 7 pm and 8 pm (Doster 417 Tr
129 167-168 Apx __) Reginald Doster discovered there had been a fire when
he along with his wife and ten-year-old daughter returned to the home between 7
am and 9 am the next morning by which time the fire had burned out (Doster
doctrine recognizes that a court cannot be asked by counsel to take a step in a case
and later be convicted of error because it has complied with such requestrdquo)
(citation and internal quotations omitted) ldquoThis doctrine is a branch of the
doctrine of waiver by which courts prevent a party from inducing an erroneous
ruling and later seeking to profit from the legal consequences by having the
verdict vacatedrdquo Barrow 118 F3d at 490-491
Some courts have held that the existence of invited error forecloses any
-20shy
review ndash even for plain error See eg United States v Baker 432 F3d 1189
1216 (11th Cir 2005) cert denied 547 US 1085 (2006) (ldquoIt is a cardinal rule of
appellate review that a party may not challenge as error a ruling or other trial
proceeding invited by that party Where invited error exists it precludes a
court from invoking the plain error rule and reversingrdquo) United States v Fulford
980 F2d 1110 1116 (7th Cir 1992) (ldquoIt is well-settled that where error is invited
not even plain error permits reversalrdquo) This Court however has recognized an
exception holding that ldquo[i]nvited error does not foreclose relief when the
interests of justice demand otherwiserdquo Barrow 118 F3d at 491 In this Circuit
the question ldquo[w]hether the circumstances of a particular case justify deviation
from the normal rule of waiver under this doctrine is left largely to the discretion
of the appellate courtrdquo Ibid Nevertheless ldquo[u]nder the invited error doctrine an
error introduced by the complaining party will cause reversal only in the most
exceptional situationrdquo United States v Tandon 111 F3d 482 489 (6th Cir
1997) (citation and internal quotations omitted)
C Any Error By The District Court In Permitting The Challenged Statements Was Invited Error And Therefore Should Not Be Reviewed By This Court
Here all of the challenged statements were elicited by defendantrsquos retained
trial counsel Br 15-24 This plainly constitutes invited error See United States
-21shy
v Parikh 858 F2d 688 695 (11th Cir 1988) (ldquoWe hold that the admission of out
of court statements by a government witness when responding to an inquiry by
defense counsel creates lsquoinvited errorrsquordquo) See also Baker 432 F3d at 1215-1216
(defendant ldquocannot now complain about the district courtrsquos errorrdquo where his
counsel ldquoinvited the errorrdquo by eliciting hearsay during cross-examination) United
States v Neal 78 F3d 901 904 (4th Cir 1996) (defendant ldquoinvited the errorrdquo and
it therefore ldquoprovides no basis for reversalrdquo where ldquo[a]t trial [defendant] did not
object to any of the statements he now challengesrdquo and ldquomost were elicited by his
own attorney from a government witness during cross-examinationrdquo) United
States v Reyes-Alvarado 963 F2d 1184 1187 (9th Cir 1992) cert denied 506
US 890 (1992) (finding invited error and refusing to reverse where ldquoappellantrsquos
counsel solicited the testimony which he now claims should have been excludedrdquo
and ldquodid not seek to strike this testimony at the time it was givenrdquo)9
As a threshold matter it bears noting that defendant fails to acknowledge
the existence of invited error and makes no argument as to why ldquothe interests of
justicerdquo Barrow 118 F3d at 491 require this Court to refrain from applying the
invited-error doctrine Accordingly defendant has waived any right to invoke the
9 This Court has reached a similar conclusion albeit in an unpublished decision See United States v Ali 38 Fed Appx 220 224 (6th Cir Mar 26 2002) (unpublished)
-22shy
interests-of-justice exception recognized by this Court See United States v
Samour 199 F3d 821 822 n1 (6th Cir 1999) (defendant ldquowaived his right to
argue the applicability of [favorable precedent] by failing to raise the issue on
appealrdquo)
Even if not waived however the interests of justice do not require this
Court to depart from the general rule that relief is foreclosed by invited error The
challenged statements were not the result of mere oversight or an isolated error by
defendantrsquos trial counsel Rather this appears to be a classic example of trial
strategy gone awry ndash not a situation in which failure to reverse contravenes the
interests of justice Indeed in this case the interests of justice weigh in favor of
invoking the invited-error doctrine as defendant presumably sought to benefit
from eliciting the challenged statements and thus should not now be heard to
argue their inadmissibility simply because his strategy failed See Reyes-
Alvarado 963 F2d at 1187 (ldquoFrom the transcript it appears that counsel thought
his pursuit of this line of questioning might benefit his client His tactics
backfired and his client was convicted A defendant cannot have it both
ways This was invited error and therefore not grounds for reversalrdquo)
Moreover the governmentrsquos trial counsel showed an abundance of caution
by specifically raising the issue and asking whether it should be discussed at
-23shy
sidebar10 This too weighs against a finding that the interests of justice require
reversal See Neal 78 F3d at 904 (ldquoAt one point the prosecutor even tried to
warn [defendantrsquos] attorney about pursuing a line of questioning relating to the
defendantrsquos prior conduct but [defendantrsquos] attorney persisted Under these
circumstances [defendant] cannot complain of error which he himself has
invitedrdquo) (citation and internal quotations omitted)
Simply put this case precisely illustrates both the purpose behind the
10 The following exchange occurred when defense counsel elicited statements from the witness regarding what Ricky Cotton told the government
[Defense Counsel] Just tell us what Ricky Cotton said and let me -shytell us what obviously is hearsay Irsquoll sit down Tell us what Ricky Cotton -shy
[Government Counsel] Your Honor should we have a sidebar on this
[The Court] What for
[Government Counsel] Irsquom not sure to figure out where we are
[Defense Counsel] This is where we are what Ricky Cotton said
[The Court] Are you objecting
[Government Counsel] If he doesnrsquot have any objection to the witness saying what Ricky Cotton said thatrsquos fine
[Defense Counsel] Letrsquos go Tell us what Ricky Cotton said
(418 Tr 173-174 Apx __)
-24shy
invited-error doctrine and the need to enforce it strictly Defendantrsquos appeal does
not challenge any action by the government Nor does he take issue with the
district courtrsquos instructions to the jury the sufficiency of the evidence to support
his conviction or the reasonableness of his sentence He also does not contend the
district court improperly ruled on any objection made by his trial counsel Rather
his arguments on appeal arise solely from the actions of his own retained trial
counsel Such claims must be rejected on their face as a contrary rule would
create perverse incentives for defendants to invite some small amount of error in
every trial so as to create grounds for appeal Accordingly this Court should
apply the invited-error doctrine and affirm the judgment below without reaching
the question whether plain error exists
II
THE DISTRICT COURT DID NOT COMMIT PLAIN ERROR IN FAILING TO SUA SPONTE PREVENT DEFENDANTrsquoS TRIAL COUNSEL FROM
ELICITING THE CHALLENGED TESTIMONY
As noted above in Section IA if this Court determines that the invited-
error doctrine does not apply it should review admission of the challenged
statements for plain error United States v Namey 364 F3d 843 846 (6th Cir
2004)
-25shy
A The Plain-Error Doctrine
ldquoThe plain error doctrine mandates reversal only in exceptional
circumstances and only where the error is so plain that the trial judge and
prosecutor were derelict in countenancing itrdquo United States v Gardiner 463 F3d
445 459 (6th Cir 2006) (quoting United States v Carroll 26 F3d 1380 1383
(6th Cir 1994)) It ldquois to be used sparingly only in exceptional circumstances
and solely to avoid a miscarriage of justicerdquo United States v Phillips 516 F3d
479 487 (6th Cir 2008) (quoting United States v Cox 957 F2d 264 267 (6th
Cir 1992))
ldquoTo show plain error a defendant must establish the following (1) error
(2) that is plain and (3) that affects substantial rights If these three conditions are
met an appellate court may then exercise its discretion to notice a forfeited error
but only if (4) the error seriously affects the fairness integrity or public reputation
of judicial proceedingsrdquo United States v Arnold 486 F3d 177 194 (6th Cir
2007) cert denied 128 S Ct 871 (2008) (citation and internal quotations
omitted) ldquoThe phrase lsquoaffects substantial rightsrsquo lsquomeans prejudicial It must have
affected the outcome of the district court proceedingsrsquordquo United States v
(ldquo[I]ssues adverted to in a perfunctory manner unaccompanied by some effort at
developed argumentation are deemed waivedrdquo) (quoting McPherson v Kelsey
125 F3d 989 995-996 (6th Cir 1997))
-27shy
C The Third And Fourth Prongs Of The Plain-Error Doctrine Are Not Satisfied In This Case Because Other Evidence Supporting Defendantrsquos Conviction Is Overwhelming
Even if the issue were fully briefed a finding of plain error would be
improper because defendant cannot satisfy the third or fourth prongs of the
inquiry The third prong of the plain-error inquiry ndash ie the requirement that the
error ldquoaffects substantial rightsrdquo Arnold 486 F3d at 194 by ldquoaffect[ing] the
outcome of the district court proceedingsrdquo Mooneyham 473 F3d at 288 ndash is not
satisfied where the evidence against the defendant is overwhelming See
Mooneyham 473 F3d at 288 United States v Hines 398 F3d 713 718-719 (6th
Cir) cert denied 545 US 1134 (2005)
Likewise the fourth prong of the inquiry ndash ie the requirement that the
error be said to have ldquoseriously affect[ed] the fairness integrity or public
reputation of judicial proceedingsrdquo Arnold 486 F3d at 194 ndash also is not met when
other evidence is ldquooverwhelmingrdquo and ldquoessentially uncontrovertedrdquo See United
States v Cotton 535 US 625 632-633 (2002) Johnson v United States 520
US 461 469-470 (1997) Hines 398 F3d at 718-719 Indeed as both the
Supreme Court and this Court have recognized with regard to the fourth prong of
the inquiry in some cases ldquoit would be the reversal of a conviction which
would have th[e] effectrdquo of ldquoseriously affect[ing] the fairness integrity or public
-28shy
reputation of judicial proceedingsrdquo Johnson 520 US at 470 (internal quotations
omitted) (emphasis added) see also United States v McGhee 119 F3d 422 424shy
425 (6th Cir 1997) This is so because ldquo[r]eversal for error regardless of its effect
on the judgment encourages litigants to abuse the judicial process and bestirs the
public to ridicule itrdquo Johnson 520 US at 470 (citation and internal quotations
omitted) see also McGhee 119 F3d at 424-425
In view of the foregoing courts often cite the presence of overwhelming
evidence as the basis for concluding that a defendant has failed to meet both the
third and fourth prongs of the plain-error inquiry See Hines 398 F3d at 718-719
United States v Dedhia 134 F3d 802 809 (6th Cir) cert denied 523 US 1145
(1998) see also United States v Birk 453 F3d 893 898 (7th Cir 2006) United
States v Taylor 284 F3d 95 102 (1st Cir) cert denied 536 US 933 (2002)
This Court should follow that approach here as there is overwhelming evidence ndash
separate and apart from the challenged statements ndash to support defendantrsquos
conviction Specifically as explained more fully below testimony at trial
established that defendant (1) spoke openly to others during the weeks leading up
to the fire regarding his desire to force the Dosters from the neighborhood (2) was
the one who set the fire (3) confided to a friend afterward that he both set the fire
and performed the lawn job with the intent to drive the Dosters away because of
-29shy
their race and (4) told conflicting stories to the FBI during the course of its
investigation one of which included an admission that he was at least indirectly
involved in setting the fire
1 Defendantrsquos Statements Prior To The Fire
Two witnesses offered detailed accounts of conversations they had with
defendant prior to the date of the fire During these conversations defendant
expressed his desire to drive the Dosters from their home
Guy Wurts testified that in mid-July 2002 Defendant said something to the
effect of ldquoI got to get rid of these niggers Irsquoll find something to do I donrsquot know
what I got to get these niggers out [of] the neighborhoodrdquo (Wurts 417 Tr 208shy
209 Apx __) Wurts testified that defendant looked in the Dostersrsquo direction
when he made these comments and said the word ldquoniggerrdquo loud enough for the
Dosters ndash who were working in their yard at the time ndash to hear it (Wurts 417 Tr
202-203 209-210 Apx __) Wurts further testified that defendant ldquoseemed
seriousrdquo when he made these statements (Wurts 417 Tr 259 Apx __)
Debbie Daniely recounted similar statements by defendant Specifically
defendant told Daniely more than once that he was very upset about the Dosters
moving into the neighborhood saying something to the effect of ldquoniggers are
moving inrdquo and ldquo[w]e have to do something about itrdquo (Daniely 418 Tr 22-25
-30shy
Apx __) Defendant later admitted to the FBI that he made such a statement to
ldquo[t]his Court has lsquoroutinely concluded that such claims are best brought by a
defendant in a post-conviction proceeding under 28 USC sect 2255 so that the
-37shy
parties can develop an adequate record on the issuersquordquo Martinez 430 F3d at 338
(quoting United States v Brown 332 F3d 363 368 (6th Cir 2003)) ldquoThere is
however lsquoa narrow exceptionrsquo to this rule lsquowhen the existing record is adequate to
assess properly the merits of the claimrsquordquo United States v Hynes 467 F3d 951
969 (6th Cir 2006) (quoting United States v Franklin 415 F3d 537 555-556
(6th Cir 2005)) See also United States v Winkle 477 F3d 407 421 (6th Cir
2007) (ldquoThis Court typically will not review a claim of ineffective assistance on
direct appeal except in rare cases where the error is apparent from the existing
recordrdquo) (quoting United States v Lopez-Medina 461 F3d 724 737 (6th Cir
2006))
No basis exists for departing from the general rule against addressing
ineffective-assistance claims on direct appeal As this Court has noted ldquo[t]he trial
process contains a myriad of complex decisions that for strategic reasons are
sound when made but may appear unsound with the benefit of hindsightrdquo United
States v Davis 306 F3d 398 422 (6th Cir 2002) cert denied 537 US 1208
(2003) (quoting United States v Fortson 194 F3d 730 736 (6th Cir 1999))
Moreover ldquo[j]udicial scrutiny of counselrsquos performance must be highly
deferentialrdquo and ldquoa court must indulge a strong presumption that counselrsquos
conduct falls within the wide range of reasonable professional assistancerdquo
-38shy
Strickland v Washington 466 US 668 689 (1984) Thus to establish ineffective
assistance ldquothe defendant must overcome the presumption that under the
circumstances the challenged action lsquomight be considered sound trial strategyrsquordquo
Ibid (quoting Michel v Louisiana 350 US 91 101 (1955))
Here the decision by defendantrsquos retained trial counsel to elicit the
challenged statements during cross-examination of a government witness
undeniably constitutes an element of trial strategy that cannot be analyzed at this
stage of the proceedings In particular because this is a direct appeal there is no
evidence in the record regarding defense counselrsquos trial strategy This Court
repeatedly has refused to review ineffective-assistance claims under such
circumstances See eg Lopez-Medina 461 F3d at 737 (ldquoAbsent evidence
specifically addressing counselrsquos performance we cannot determine whether his
actions reflected a reasoned trial strategyrdquo) United States v Sullivan 431 F3d
976 986 (6th Cir 2005) (ldquoWithout an explanation from trial counsel as to why he
failed to call the alibi witness we have no basis to determine whether this decision
was the result of inadequate representation or reasonable trial strategyrdquo) United
States v Allison 59 F3d 43 47 (6th Cir) cert denied 516 US 1002 (1995)
(ldquo[T]he sparse record before this court does not reveal whether the attorneyrsquos
actions could be considered sound trial strategyrdquo) United States v Snow 48 F3d
-39shy
198 199 (6th Cir 1995) (ldquoThe record before this court simply is insufficient to
show whether the alleged wrongful acts could be considered sound trial
strategyrdquo) Thus defendantrsquos ineffective-assistance claim must be examined ndash if
at all ndash in a separate collateral proceeding brought pursuant to Section 2255
C The Evidence That Is Available In The Record Does Not Support A Finding Of Ineffective Assistance Of Counsel
As stated above the governmentrsquos position is that the current record is not
sufficient to permit this Court to address defendantrsquos ineffective-assistance claim
in this direct appeal However if the Court disagrees ndash or desires in the interest of
judicial economy to address defendantrsquos claim on direct appeal ndash it should reject
the claim because defendant fails to satisfy the second prong of the ineffective-
assistance inquiry11
11 The government does not concede that the first prong of the Strickland inquiry is satisfied in this case Rather as noted above it is not possible to resolve the issue at this point because the record does not indicate precisely what defendantrsquos trial counsel was thinking what his strategy was or why he elected to pursue certain lines of questioning In the event that defendant elects to bring a collateral challenge pursuant to Section 2255 the government reserves the right to address the first prong of Strickland inquiry and to further develop its argument as to the second prong The governmentrsquos decision not to do so in this brief is based on the incomplete nature of the record with regard to the Strickland inquiry and should not be construed as a waiver or forfeiture of any arguments relating to defendantrsquos ineffective-assistance claim
-40shy
1 Standard For Establishing Ineffective Assistance Of Counsel
To prove ineffective assistance of counsel under Strickland a defendant
first ldquomust demonstrate that counselrsquos performance fell lsquobelow the objective
standard of reasonablenessrsquordquo Ivory v Jackson 509 F3d 284 294 (6th Cir 2007)
cert denied 128 S Ct 1897 (2008) (quoting Strickland 466 US at 688)) ldquoThe
defendant must then demonstrate that lsquothere is a reasonable probability that but
for counselrsquos unprofessional errors the result of the proceeding would have been
different A reasonable probability is a probability sufficient to undermine the
confidence in the outcomersquordquo Ibid (quoting Strickland 466 US at 694)
Significantly this Court ldquoneed not decide whether defense counsel
performed deficiently if disposing of an ineffective-assistance claim on the ground
of lack of sufficient prejudice would be easierrdquo Hynes 467 F3d at 970 See also
Ivory 509 F3d at 294 (ldquo[A] court need not determine whether counselrsquos
performance was deficient before examining the prejudice suffered by the
defendant as a result of the alleged deficiencies If it is easier to dispose of
an ineffectiveness claim on the ground of lack of sufficient prejudice which we
expect will often be so that course should be followedrdquo) (quoting Strickland 466
US at 697)
-41shy
2 Defendant Is Unable To Demonstrate Sufficient Prejudice And Therefore Cannot Satisfy The Second Prong Of The Inquiry
ldquoTo show prejudice [defendant] must demonstrate that lsquothere is a
reasonable probability that but for counselrsquos unprofessional errors the result of
the proceeding would have been differentrsquordquo Harrison v Motley 478 F3d 750
756 (6th Cir) cert denied 128 S Ct 444 (2007) (quoting Strickland 466 US at
694)) As set forth above in Section IIC the evidence of defendantrsquos guilt is
overwhelming and the result therefore would not have been different absent the
challenged statements This Court repeatedly has determined that the second
prong of the Strickland inquiry is not met under such circumstances See eg
Harrison 478 F3d at 757 (defendant ldquofailed to show that his attorneysrsquo alleged
conflict of interest resulted in prejudicerdquo where ldquothe evidence admitted against
[defendant] at trial was lsquooverwhelmingrsquordquo) Hicks v Collins 384 F3d 204 215
(6th Cir 2004) cert denied 545 US 1155 (2005) (holding that defendant cannot
satisfy the second prong of Strickland where ldquothere was overwhelming evidence of
[defendantrsquos] guiltrdquo) Campbell v United States 364 F3d 727 736 (6th Cir
2004) cert denied 543 US 1119 (2005) (ldquoGiven the overwhelming evidence
establishing [defendantrsquos] guilt we believe that he would not have been able to
show that but for his attorneyrsquos failure to object to the prosecutorrsquos alleged
-42shy
misconduct the result would have been differentrdquo)
Accordingly even if this Court determines that the record is sufficient for it
to address defendantrsquos ineffective-assistance claim on direct appeal it should
reject this claim based on his failure to satisfy the second prong of the Strickland
inquiry
CONCLUSION
For the foregoing reasons this Court should affirm the judgment below
Respectfully submitted
GRACE CHUNG BECKER Acting Assistant Attorney General Civil Rights Division
DIANA K FLYNN DIRK C PHILLIPS Attorneys US Department of Justice Civil Rights Divisions Appellate Section Ben Franklin Station PO Box 14403 Washington DC 20044-4403 (202) 305-4876
CERTIFICATE OF COMPLIANCE
Pursuant to Federal Rule of Appellate Procedure 32(a)(7)(B) I hereby
certify that this brief is proportionally spaced 14-point Times New Roman font
Per WordPerfect 12 software the brief contains 9022 words excluding those
parts exempted by Federal Rule of Appellate Procedure 32(a)(7)(B)(iii)
DIRK C PHILLIPS Attorney
DATED June 18 2008
CERTIFICATE OF SERVICE
I hereby certify that on June 18 2008 a copy of the foregoing PROOF
BRIEF FOR THE UNITED STATES AS PLAINTIFF-APPELLEE was served by
first class mail postage prepaid on counsel of record at the following address
Joan E Morgan 2057 Orchard Lake Road Sylvan Lake MI 48320
DIRK C PHILLIPS Attorney
APPELLEErsquoS DESIGNATION OF APPENDIX CONTENTS
APPELLEErsquoS DESIGNATION OF APPENDIX CONTENTS
Appellee United States of America designates the following items to be
As such the Dostersrsquo purchase of and efforts to refurbish the house across
the street from the Mullins home did not go unnoticed by defendant or certain
other members of the neighborhood Indeed it was a topic of conversation among
those who were not happy about an African-American family moving into the
neighborhood (Daniely 418 Tr 17-18 Apx __)
During the period in which the Dosters were refurbishing the property
defendant made comments to friends regarding his desire to drive the Dosters from
the neighborhood One such incident occurred during the middle part of July
2002 (Wurts 417 Tr 208-209 Apx __) Defendant and a friend Guy Wurts
were standing in the back of Wurtsrsquo pickup truck which was parked in front of the
Mullins home (Wurts 417 Tr 202 Apx __) The Dosters were out working in
their yard at the time (Wurts 417 Tr 202-203 209 Apx __) Defendant said
something to the effect of ldquoI got to get rid of these niggers Irsquoll find something to
do I donrsquot know what I got to get these niggers out [of] the neighborhoodrdquo
(Wurts 417 Tr 209 Apx __)2 Defendant was looking in the Dostersrsquo direction
2 Similar descriptions of defendantrsquos statements appear elsewhere in Wurtsrsquo testimony (Wurts 417 Tr 201-202 209 260 Apx __)
-6shy
when he made these comments and said the word ldquoniggerrdquo loud enough for the
Dosters to hear it (Wurts 417 Tr 209-210 Apx __) Wurts testified that
defendant was a racist and that defendant ldquoseemed seriousrdquo when he made these
statements (Wurts 417 Tr 239-240 259-260 Apx __)
Debbie Daniely a neighbor and friend of the Mullins family (Daniely 418
Tr 6-8 Apx __) recounted similar statements by defendant Defendant told
Daniely more than once that he was very upset about the Dosters moving into the
neighborhood (Daniely 418 Tr 22 Apx __) She testified that defendant said
something to the effect of ldquoniggers are moving inrdquo and ldquo[w]e have to do something
about itrdquo (Daniely 418 Tr 23 Apx __)3 She believed he was serious when he
said such things (Daniely 418 Tr 25 Apx __)
3 The Fire
During the afternoon of Sunday July 28 2002 defendant along with Lee
Vanderlinden Don Flowers Chuck Proctor Michael Richardson and Ricky
Cotton4 were working in the yard of a neighbor Ann Hixon (Richardson 418
3 Defendant later admitted to the FBI that he made such a statement to Daniely (Rees 418 Tr 203 Apx __)
4 Lee Vanderlinden was the boyfriend of defendantrsquos mother and has lived in the Mullins home since at least 1996 or 1997 (Wurts 417 Tr 197-198 Apx __) Don Flowers was a friend of the Mullins family who often would socialize
(continued)
-7shy
Tr 56-58 Apx __)5 A group that included defendant Richardson Vanderlinden
Flowers and Cotton began making comments about ldquothe niggers next doorrdquo
(Richardson 418 Tr 58-59 Apx __) Richardson suggested burning a cross in
order to drive the Dosters away (Richardson 418 Tr 61 Apx __) Defendant
however went further suggesting they ldquo[t]orch the houserdquo and told the others to
come back later that night (Richardson 418 Tr 62-63 Apx __) Richardson
Vanderlinden Cotton and Flowers returned that evening and met defendant at the
Mullins home across the street from the Dosters (Richardson 418 Tr 63 Apx
__)6 They discussed ldquo[t]orchingrdquo the Doster home and all were in favor of doing
4(continued)
with Lee Vanderlinden at the Mullins home (Church 419 Tr 58-59 Apx __) Chuck Proctor worked with Lee Vanderlinden and often would hang around the Mullins home (Wurts 417 Tr 199-200 Apx __ Church 419 Tr 57-58 Apx __) Michael Richardson was a good friend of defendant who spent a lot of time at the Mullins home (Wurts 417 Tr 201 Apx __) Ricky Cotton lived nearby and also was a regular at the Mullins home (Wurts 417 Tr 200-201 Apx __) As noted above Richardson and Cotton both pled guilty in this case (R 92106 and 41207 plea hearings)
5 Ann Hixon was called by the defense and testified that this gathering could not have taken place on Sunday July 28 She testified that it occurred sometime during the Spring (she could not recall which year) and that it could not have been a Sunday because she always works on Sundays (Hixon 419 Tr 37shy38 Apx __)
Defendantrsquos aunt Casie Church lives in the Mullins home and was called to testify by defendant She stated that she was sitting on the front porch of the house during the late evening and early morning hours of July 28 and 29
(continued)
6
-8shy
so (Richardson 418 Tr 63 Apx __) Each of them encouraged defendant by
ldquo[e]gging him onrdquo and by ldquo[d]aringrdquo and ldquo[i]ncitingrdquo him to do so (Richardson
418 Tr 64 Apx __)
Defendant took a can of gasoline from the garage of the Mullins home and
went to the back of the Doster home (Richardson 418 Tr 64-65 Apx __)
Richardson Cotton Flowers and Vanderlinden served as lookouts with
Richardson following defendant to the Doster home and the other three remaining
across the street (Richardson 418 Tr 64-65 Apx __) Upon reaching the back
of the Doster home defendant either pried open or broke a window and poured
gasoline inside the house and on the windowsill (Richardson 418 Tr 65 111shy
114 Apx __)7 He then started the fire by holding a lighter up to the windowsill
and blowing until it ignited (Richardson 418 Tr 113 Apx __) Once the fire
was lit defendant and Richardson ran back across the street to join the others
where they celebrated and congratulated defendant (Richardson 418 Tr 65-66
6(continued)
(Church 419 Tr 45 Apx __) She testified that there was no one near the garage of the Mullins home during this time (Church 419 Tr 45 Apx __) But she stated that she did see someone named Mike sometime between 10 pm and 3 am (Church 419 Tr 45-46 Apx __)
7 Richardsonrsquos testimony indicates that it may have been a mixture of oil and gasoline (Richardson 418 Tr 65 Apx __)
-9shy
114-115 Apx __) Richardson testified that defendant set the fire because of the
Dostersrsquo race (Richardson 418 Tr 82 Apx __)
The Dosters had not yet moved into the Ziegler property and therefore were
not home at the time of the fire They had spent Sunday July 28 painting the
Ziegler property and left sometime between 7 pm and 8 pm (Doster 417 Tr
129 167-168 Apx __) Reginald Doster discovered there had been a fire when
he along with his wife and ten-year-old daughter returned to the home between 7
am and 9 am the next morning by which time the fire had burned out (Doster
doctrine recognizes that a court cannot be asked by counsel to take a step in a case
and later be convicted of error because it has complied with such requestrdquo)
(citation and internal quotations omitted) ldquoThis doctrine is a branch of the
doctrine of waiver by which courts prevent a party from inducing an erroneous
ruling and later seeking to profit from the legal consequences by having the
verdict vacatedrdquo Barrow 118 F3d at 490-491
Some courts have held that the existence of invited error forecloses any
-20shy
review ndash even for plain error See eg United States v Baker 432 F3d 1189
1216 (11th Cir 2005) cert denied 547 US 1085 (2006) (ldquoIt is a cardinal rule of
appellate review that a party may not challenge as error a ruling or other trial
proceeding invited by that party Where invited error exists it precludes a
court from invoking the plain error rule and reversingrdquo) United States v Fulford
980 F2d 1110 1116 (7th Cir 1992) (ldquoIt is well-settled that where error is invited
not even plain error permits reversalrdquo) This Court however has recognized an
exception holding that ldquo[i]nvited error does not foreclose relief when the
interests of justice demand otherwiserdquo Barrow 118 F3d at 491 In this Circuit
the question ldquo[w]hether the circumstances of a particular case justify deviation
from the normal rule of waiver under this doctrine is left largely to the discretion
of the appellate courtrdquo Ibid Nevertheless ldquo[u]nder the invited error doctrine an
error introduced by the complaining party will cause reversal only in the most
exceptional situationrdquo United States v Tandon 111 F3d 482 489 (6th Cir
1997) (citation and internal quotations omitted)
C Any Error By The District Court In Permitting The Challenged Statements Was Invited Error And Therefore Should Not Be Reviewed By This Court
Here all of the challenged statements were elicited by defendantrsquos retained
trial counsel Br 15-24 This plainly constitutes invited error See United States
-21shy
v Parikh 858 F2d 688 695 (11th Cir 1988) (ldquoWe hold that the admission of out
of court statements by a government witness when responding to an inquiry by
defense counsel creates lsquoinvited errorrsquordquo) See also Baker 432 F3d at 1215-1216
(defendant ldquocannot now complain about the district courtrsquos errorrdquo where his
counsel ldquoinvited the errorrdquo by eliciting hearsay during cross-examination) United
States v Neal 78 F3d 901 904 (4th Cir 1996) (defendant ldquoinvited the errorrdquo and
it therefore ldquoprovides no basis for reversalrdquo where ldquo[a]t trial [defendant] did not
object to any of the statements he now challengesrdquo and ldquomost were elicited by his
own attorney from a government witness during cross-examinationrdquo) United
States v Reyes-Alvarado 963 F2d 1184 1187 (9th Cir 1992) cert denied 506
US 890 (1992) (finding invited error and refusing to reverse where ldquoappellantrsquos
counsel solicited the testimony which he now claims should have been excludedrdquo
and ldquodid not seek to strike this testimony at the time it was givenrdquo)9
As a threshold matter it bears noting that defendant fails to acknowledge
the existence of invited error and makes no argument as to why ldquothe interests of
justicerdquo Barrow 118 F3d at 491 require this Court to refrain from applying the
invited-error doctrine Accordingly defendant has waived any right to invoke the
9 This Court has reached a similar conclusion albeit in an unpublished decision See United States v Ali 38 Fed Appx 220 224 (6th Cir Mar 26 2002) (unpublished)
-22shy
interests-of-justice exception recognized by this Court See United States v
Samour 199 F3d 821 822 n1 (6th Cir 1999) (defendant ldquowaived his right to
argue the applicability of [favorable precedent] by failing to raise the issue on
appealrdquo)
Even if not waived however the interests of justice do not require this
Court to depart from the general rule that relief is foreclosed by invited error The
challenged statements were not the result of mere oversight or an isolated error by
defendantrsquos trial counsel Rather this appears to be a classic example of trial
strategy gone awry ndash not a situation in which failure to reverse contravenes the
interests of justice Indeed in this case the interests of justice weigh in favor of
invoking the invited-error doctrine as defendant presumably sought to benefit
from eliciting the challenged statements and thus should not now be heard to
argue their inadmissibility simply because his strategy failed See Reyes-
Alvarado 963 F2d at 1187 (ldquoFrom the transcript it appears that counsel thought
his pursuit of this line of questioning might benefit his client His tactics
backfired and his client was convicted A defendant cannot have it both
ways This was invited error and therefore not grounds for reversalrdquo)
Moreover the governmentrsquos trial counsel showed an abundance of caution
by specifically raising the issue and asking whether it should be discussed at
-23shy
sidebar10 This too weighs against a finding that the interests of justice require
reversal See Neal 78 F3d at 904 (ldquoAt one point the prosecutor even tried to
warn [defendantrsquos] attorney about pursuing a line of questioning relating to the
defendantrsquos prior conduct but [defendantrsquos] attorney persisted Under these
circumstances [defendant] cannot complain of error which he himself has
invitedrdquo) (citation and internal quotations omitted)
Simply put this case precisely illustrates both the purpose behind the
10 The following exchange occurred when defense counsel elicited statements from the witness regarding what Ricky Cotton told the government
[Defense Counsel] Just tell us what Ricky Cotton said and let me -shytell us what obviously is hearsay Irsquoll sit down Tell us what Ricky Cotton -shy
[Government Counsel] Your Honor should we have a sidebar on this
[The Court] What for
[Government Counsel] Irsquom not sure to figure out where we are
[Defense Counsel] This is where we are what Ricky Cotton said
[The Court] Are you objecting
[Government Counsel] If he doesnrsquot have any objection to the witness saying what Ricky Cotton said thatrsquos fine
[Defense Counsel] Letrsquos go Tell us what Ricky Cotton said
(418 Tr 173-174 Apx __)
-24shy
invited-error doctrine and the need to enforce it strictly Defendantrsquos appeal does
not challenge any action by the government Nor does he take issue with the
district courtrsquos instructions to the jury the sufficiency of the evidence to support
his conviction or the reasonableness of his sentence He also does not contend the
district court improperly ruled on any objection made by his trial counsel Rather
his arguments on appeal arise solely from the actions of his own retained trial
counsel Such claims must be rejected on their face as a contrary rule would
create perverse incentives for defendants to invite some small amount of error in
every trial so as to create grounds for appeal Accordingly this Court should
apply the invited-error doctrine and affirm the judgment below without reaching
the question whether plain error exists
II
THE DISTRICT COURT DID NOT COMMIT PLAIN ERROR IN FAILING TO SUA SPONTE PREVENT DEFENDANTrsquoS TRIAL COUNSEL FROM
ELICITING THE CHALLENGED TESTIMONY
As noted above in Section IA if this Court determines that the invited-
error doctrine does not apply it should review admission of the challenged
statements for plain error United States v Namey 364 F3d 843 846 (6th Cir
2004)
-25shy
A The Plain-Error Doctrine
ldquoThe plain error doctrine mandates reversal only in exceptional
circumstances and only where the error is so plain that the trial judge and
prosecutor were derelict in countenancing itrdquo United States v Gardiner 463 F3d
445 459 (6th Cir 2006) (quoting United States v Carroll 26 F3d 1380 1383
(6th Cir 1994)) It ldquois to be used sparingly only in exceptional circumstances
and solely to avoid a miscarriage of justicerdquo United States v Phillips 516 F3d
479 487 (6th Cir 2008) (quoting United States v Cox 957 F2d 264 267 (6th
Cir 1992))
ldquoTo show plain error a defendant must establish the following (1) error
(2) that is plain and (3) that affects substantial rights If these three conditions are
met an appellate court may then exercise its discretion to notice a forfeited error
but only if (4) the error seriously affects the fairness integrity or public reputation
of judicial proceedingsrdquo United States v Arnold 486 F3d 177 194 (6th Cir
2007) cert denied 128 S Ct 871 (2008) (citation and internal quotations
omitted) ldquoThe phrase lsquoaffects substantial rightsrsquo lsquomeans prejudicial It must have
affected the outcome of the district court proceedingsrsquordquo United States v
(ldquo[I]ssues adverted to in a perfunctory manner unaccompanied by some effort at
developed argumentation are deemed waivedrdquo) (quoting McPherson v Kelsey
125 F3d 989 995-996 (6th Cir 1997))
-27shy
C The Third And Fourth Prongs Of The Plain-Error Doctrine Are Not Satisfied In This Case Because Other Evidence Supporting Defendantrsquos Conviction Is Overwhelming
Even if the issue were fully briefed a finding of plain error would be
improper because defendant cannot satisfy the third or fourth prongs of the
inquiry The third prong of the plain-error inquiry ndash ie the requirement that the
error ldquoaffects substantial rightsrdquo Arnold 486 F3d at 194 by ldquoaffect[ing] the
outcome of the district court proceedingsrdquo Mooneyham 473 F3d at 288 ndash is not
satisfied where the evidence against the defendant is overwhelming See
Mooneyham 473 F3d at 288 United States v Hines 398 F3d 713 718-719 (6th
Cir) cert denied 545 US 1134 (2005)
Likewise the fourth prong of the inquiry ndash ie the requirement that the
error be said to have ldquoseriously affect[ed] the fairness integrity or public
reputation of judicial proceedingsrdquo Arnold 486 F3d at 194 ndash also is not met when
other evidence is ldquooverwhelmingrdquo and ldquoessentially uncontrovertedrdquo See United
States v Cotton 535 US 625 632-633 (2002) Johnson v United States 520
US 461 469-470 (1997) Hines 398 F3d at 718-719 Indeed as both the
Supreme Court and this Court have recognized with regard to the fourth prong of
the inquiry in some cases ldquoit would be the reversal of a conviction which
would have th[e] effectrdquo of ldquoseriously affect[ing] the fairness integrity or public
-28shy
reputation of judicial proceedingsrdquo Johnson 520 US at 470 (internal quotations
omitted) (emphasis added) see also United States v McGhee 119 F3d 422 424shy
425 (6th Cir 1997) This is so because ldquo[r]eversal for error regardless of its effect
on the judgment encourages litigants to abuse the judicial process and bestirs the
public to ridicule itrdquo Johnson 520 US at 470 (citation and internal quotations
omitted) see also McGhee 119 F3d at 424-425
In view of the foregoing courts often cite the presence of overwhelming
evidence as the basis for concluding that a defendant has failed to meet both the
third and fourth prongs of the plain-error inquiry See Hines 398 F3d at 718-719
United States v Dedhia 134 F3d 802 809 (6th Cir) cert denied 523 US 1145
(1998) see also United States v Birk 453 F3d 893 898 (7th Cir 2006) United
States v Taylor 284 F3d 95 102 (1st Cir) cert denied 536 US 933 (2002)
This Court should follow that approach here as there is overwhelming evidence ndash
separate and apart from the challenged statements ndash to support defendantrsquos
conviction Specifically as explained more fully below testimony at trial
established that defendant (1) spoke openly to others during the weeks leading up
to the fire regarding his desire to force the Dosters from the neighborhood (2) was
the one who set the fire (3) confided to a friend afterward that he both set the fire
and performed the lawn job with the intent to drive the Dosters away because of
-29shy
their race and (4) told conflicting stories to the FBI during the course of its
investigation one of which included an admission that he was at least indirectly
involved in setting the fire
1 Defendantrsquos Statements Prior To The Fire
Two witnesses offered detailed accounts of conversations they had with
defendant prior to the date of the fire During these conversations defendant
expressed his desire to drive the Dosters from their home
Guy Wurts testified that in mid-July 2002 Defendant said something to the
effect of ldquoI got to get rid of these niggers Irsquoll find something to do I donrsquot know
what I got to get these niggers out [of] the neighborhoodrdquo (Wurts 417 Tr 208shy
209 Apx __) Wurts testified that defendant looked in the Dostersrsquo direction
when he made these comments and said the word ldquoniggerrdquo loud enough for the
Dosters ndash who were working in their yard at the time ndash to hear it (Wurts 417 Tr
202-203 209-210 Apx __) Wurts further testified that defendant ldquoseemed
seriousrdquo when he made these statements (Wurts 417 Tr 259 Apx __)
Debbie Daniely recounted similar statements by defendant Specifically
defendant told Daniely more than once that he was very upset about the Dosters
moving into the neighborhood saying something to the effect of ldquoniggers are
moving inrdquo and ldquo[w]e have to do something about itrdquo (Daniely 418 Tr 22-25
-30shy
Apx __) Defendant later admitted to the FBI that he made such a statement to
ldquo[t]his Court has lsquoroutinely concluded that such claims are best brought by a
defendant in a post-conviction proceeding under 28 USC sect 2255 so that the
-37shy
parties can develop an adequate record on the issuersquordquo Martinez 430 F3d at 338
(quoting United States v Brown 332 F3d 363 368 (6th Cir 2003)) ldquoThere is
however lsquoa narrow exceptionrsquo to this rule lsquowhen the existing record is adequate to
assess properly the merits of the claimrsquordquo United States v Hynes 467 F3d 951
969 (6th Cir 2006) (quoting United States v Franklin 415 F3d 537 555-556
(6th Cir 2005)) See also United States v Winkle 477 F3d 407 421 (6th Cir
2007) (ldquoThis Court typically will not review a claim of ineffective assistance on
direct appeal except in rare cases where the error is apparent from the existing
recordrdquo) (quoting United States v Lopez-Medina 461 F3d 724 737 (6th Cir
2006))
No basis exists for departing from the general rule against addressing
ineffective-assistance claims on direct appeal As this Court has noted ldquo[t]he trial
process contains a myriad of complex decisions that for strategic reasons are
sound when made but may appear unsound with the benefit of hindsightrdquo United
States v Davis 306 F3d 398 422 (6th Cir 2002) cert denied 537 US 1208
(2003) (quoting United States v Fortson 194 F3d 730 736 (6th Cir 1999))
Moreover ldquo[j]udicial scrutiny of counselrsquos performance must be highly
deferentialrdquo and ldquoa court must indulge a strong presumption that counselrsquos
conduct falls within the wide range of reasonable professional assistancerdquo
-38shy
Strickland v Washington 466 US 668 689 (1984) Thus to establish ineffective
assistance ldquothe defendant must overcome the presumption that under the
circumstances the challenged action lsquomight be considered sound trial strategyrsquordquo
Ibid (quoting Michel v Louisiana 350 US 91 101 (1955))
Here the decision by defendantrsquos retained trial counsel to elicit the
challenged statements during cross-examination of a government witness
undeniably constitutes an element of trial strategy that cannot be analyzed at this
stage of the proceedings In particular because this is a direct appeal there is no
evidence in the record regarding defense counselrsquos trial strategy This Court
repeatedly has refused to review ineffective-assistance claims under such
circumstances See eg Lopez-Medina 461 F3d at 737 (ldquoAbsent evidence
specifically addressing counselrsquos performance we cannot determine whether his
actions reflected a reasoned trial strategyrdquo) United States v Sullivan 431 F3d
976 986 (6th Cir 2005) (ldquoWithout an explanation from trial counsel as to why he
failed to call the alibi witness we have no basis to determine whether this decision
was the result of inadequate representation or reasonable trial strategyrdquo) United
States v Allison 59 F3d 43 47 (6th Cir) cert denied 516 US 1002 (1995)
(ldquo[T]he sparse record before this court does not reveal whether the attorneyrsquos
actions could be considered sound trial strategyrdquo) United States v Snow 48 F3d
-39shy
198 199 (6th Cir 1995) (ldquoThe record before this court simply is insufficient to
show whether the alleged wrongful acts could be considered sound trial
strategyrdquo) Thus defendantrsquos ineffective-assistance claim must be examined ndash if
at all ndash in a separate collateral proceeding brought pursuant to Section 2255
C The Evidence That Is Available In The Record Does Not Support A Finding Of Ineffective Assistance Of Counsel
As stated above the governmentrsquos position is that the current record is not
sufficient to permit this Court to address defendantrsquos ineffective-assistance claim
in this direct appeal However if the Court disagrees ndash or desires in the interest of
judicial economy to address defendantrsquos claim on direct appeal ndash it should reject
the claim because defendant fails to satisfy the second prong of the ineffective-
assistance inquiry11
11 The government does not concede that the first prong of the Strickland inquiry is satisfied in this case Rather as noted above it is not possible to resolve the issue at this point because the record does not indicate precisely what defendantrsquos trial counsel was thinking what his strategy was or why he elected to pursue certain lines of questioning In the event that defendant elects to bring a collateral challenge pursuant to Section 2255 the government reserves the right to address the first prong of Strickland inquiry and to further develop its argument as to the second prong The governmentrsquos decision not to do so in this brief is based on the incomplete nature of the record with regard to the Strickland inquiry and should not be construed as a waiver or forfeiture of any arguments relating to defendantrsquos ineffective-assistance claim
-40shy
1 Standard For Establishing Ineffective Assistance Of Counsel
To prove ineffective assistance of counsel under Strickland a defendant
first ldquomust demonstrate that counselrsquos performance fell lsquobelow the objective
standard of reasonablenessrsquordquo Ivory v Jackson 509 F3d 284 294 (6th Cir 2007)
cert denied 128 S Ct 1897 (2008) (quoting Strickland 466 US at 688)) ldquoThe
defendant must then demonstrate that lsquothere is a reasonable probability that but
for counselrsquos unprofessional errors the result of the proceeding would have been
different A reasonable probability is a probability sufficient to undermine the
confidence in the outcomersquordquo Ibid (quoting Strickland 466 US at 694)
Significantly this Court ldquoneed not decide whether defense counsel
performed deficiently if disposing of an ineffective-assistance claim on the ground
of lack of sufficient prejudice would be easierrdquo Hynes 467 F3d at 970 See also
Ivory 509 F3d at 294 (ldquo[A] court need not determine whether counselrsquos
performance was deficient before examining the prejudice suffered by the
defendant as a result of the alleged deficiencies If it is easier to dispose of
an ineffectiveness claim on the ground of lack of sufficient prejudice which we
expect will often be so that course should be followedrdquo) (quoting Strickland 466
US at 697)
-41shy
2 Defendant Is Unable To Demonstrate Sufficient Prejudice And Therefore Cannot Satisfy The Second Prong Of The Inquiry
ldquoTo show prejudice [defendant] must demonstrate that lsquothere is a
reasonable probability that but for counselrsquos unprofessional errors the result of
the proceeding would have been differentrsquordquo Harrison v Motley 478 F3d 750
756 (6th Cir) cert denied 128 S Ct 444 (2007) (quoting Strickland 466 US at
694)) As set forth above in Section IIC the evidence of defendantrsquos guilt is
overwhelming and the result therefore would not have been different absent the
challenged statements This Court repeatedly has determined that the second
prong of the Strickland inquiry is not met under such circumstances See eg
Harrison 478 F3d at 757 (defendant ldquofailed to show that his attorneysrsquo alleged
conflict of interest resulted in prejudicerdquo where ldquothe evidence admitted against
[defendant] at trial was lsquooverwhelmingrsquordquo) Hicks v Collins 384 F3d 204 215
(6th Cir 2004) cert denied 545 US 1155 (2005) (holding that defendant cannot
satisfy the second prong of Strickland where ldquothere was overwhelming evidence of
[defendantrsquos] guiltrdquo) Campbell v United States 364 F3d 727 736 (6th Cir
2004) cert denied 543 US 1119 (2005) (ldquoGiven the overwhelming evidence
establishing [defendantrsquos] guilt we believe that he would not have been able to
show that but for his attorneyrsquos failure to object to the prosecutorrsquos alleged
-42shy
misconduct the result would have been differentrdquo)
Accordingly even if this Court determines that the record is sufficient for it
to address defendantrsquos ineffective-assistance claim on direct appeal it should
reject this claim based on his failure to satisfy the second prong of the Strickland
inquiry
CONCLUSION
For the foregoing reasons this Court should affirm the judgment below
Respectfully submitted
GRACE CHUNG BECKER Acting Assistant Attorney General Civil Rights Division
DIANA K FLYNN DIRK C PHILLIPS Attorneys US Department of Justice Civil Rights Divisions Appellate Section Ben Franklin Station PO Box 14403 Washington DC 20044-4403 (202) 305-4876
CERTIFICATE OF COMPLIANCE
Pursuant to Federal Rule of Appellate Procedure 32(a)(7)(B) I hereby
certify that this brief is proportionally spaced 14-point Times New Roman font
Per WordPerfect 12 software the brief contains 9022 words excluding those
parts exempted by Federal Rule of Appellate Procedure 32(a)(7)(B)(iii)
DIRK C PHILLIPS Attorney
DATED June 18 2008
CERTIFICATE OF SERVICE
I hereby certify that on June 18 2008 a copy of the foregoing PROOF
BRIEF FOR THE UNITED STATES AS PLAINTIFF-APPELLEE was served by
first class mail postage prepaid on counsel of record at the following address
Joan E Morgan 2057 Orchard Lake Road Sylvan Lake MI 48320
DIRK C PHILLIPS Attorney
APPELLEErsquoS DESIGNATION OF APPENDIX CONTENTS
APPELLEErsquoS DESIGNATION OF APPENDIX CONTENTS
Appellee United States of America designates the following items to be
As such the Dostersrsquo purchase of and efforts to refurbish the house across
the street from the Mullins home did not go unnoticed by defendant or certain
other members of the neighborhood Indeed it was a topic of conversation among
those who were not happy about an African-American family moving into the
neighborhood (Daniely 418 Tr 17-18 Apx __)
During the period in which the Dosters were refurbishing the property
defendant made comments to friends regarding his desire to drive the Dosters from
the neighborhood One such incident occurred during the middle part of July
2002 (Wurts 417 Tr 208-209 Apx __) Defendant and a friend Guy Wurts
were standing in the back of Wurtsrsquo pickup truck which was parked in front of the
Mullins home (Wurts 417 Tr 202 Apx __) The Dosters were out working in
their yard at the time (Wurts 417 Tr 202-203 209 Apx __) Defendant said
something to the effect of ldquoI got to get rid of these niggers Irsquoll find something to
do I donrsquot know what I got to get these niggers out [of] the neighborhoodrdquo
(Wurts 417 Tr 209 Apx __)2 Defendant was looking in the Dostersrsquo direction
2 Similar descriptions of defendantrsquos statements appear elsewhere in Wurtsrsquo testimony (Wurts 417 Tr 201-202 209 260 Apx __)
-6shy
when he made these comments and said the word ldquoniggerrdquo loud enough for the
Dosters to hear it (Wurts 417 Tr 209-210 Apx __) Wurts testified that
defendant was a racist and that defendant ldquoseemed seriousrdquo when he made these
statements (Wurts 417 Tr 239-240 259-260 Apx __)
Debbie Daniely a neighbor and friend of the Mullins family (Daniely 418
Tr 6-8 Apx __) recounted similar statements by defendant Defendant told
Daniely more than once that he was very upset about the Dosters moving into the
neighborhood (Daniely 418 Tr 22 Apx __) She testified that defendant said
something to the effect of ldquoniggers are moving inrdquo and ldquo[w]e have to do something
about itrdquo (Daniely 418 Tr 23 Apx __)3 She believed he was serious when he
said such things (Daniely 418 Tr 25 Apx __)
3 The Fire
During the afternoon of Sunday July 28 2002 defendant along with Lee
Vanderlinden Don Flowers Chuck Proctor Michael Richardson and Ricky
Cotton4 were working in the yard of a neighbor Ann Hixon (Richardson 418
3 Defendant later admitted to the FBI that he made such a statement to Daniely (Rees 418 Tr 203 Apx __)
4 Lee Vanderlinden was the boyfriend of defendantrsquos mother and has lived in the Mullins home since at least 1996 or 1997 (Wurts 417 Tr 197-198 Apx __) Don Flowers was a friend of the Mullins family who often would socialize
(continued)
-7shy
Tr 56-58 Apx __)5 A group that included defendant Richardson Vanderlinden
Flowers and Cotton began making comments about ldquothe niggers next doorrdquo
(Richardson 418 Tr 58-59 Apx __) Richardson suggested burning a cross in
order to drive the Dosters away (Richardson 418 Tr 61 Apx __) Defendant
however went further suggesting they ldquo[t]orch the houserdquo and told the others to
come back later that night (Richardson 418 Tr 62-63 Apx __) Richardson
Vanderlinden Cotton and Flowers returned that evening and met defendant at the
Mullins home across the street from the Dosters (Richardson 418 Tr 63 Apx
__)6 They discussed ldquo[t]orchingrdquo the Doster home and all were in favor of doing
4(continued)
with Lee Vanderlinden at the Mullins home (Church 419 Tr 58-59 Apx __) Chuck Proctor worked with Lee Vanderlinden and often would hang around the Mullins home (Wurts 417 Tr 199-200 Apx __ Church 419 Tr 57-58 Apx __) Michael Richardson was a good friend of defendant who spent a lot of time at the Mullins home (Wurts 417 Tr 201 Apx __) Ricky Cotton lived nearby and also was a regular at the Mullins home (Wurts 417 Tr 200-201 Apx __) As noted above Richardson and Cotton both pled guilty in this case (R 92106 and 41207 plea hearings)
5 Ann Hixon was called by the defense and testified that this gathering could not have taken place on Sunday July 28 She testified that it occurred sometime during the Spring (she could not recall which year) and that it could not have been a Sunday because she always works on Sundays (Hixon 419 Tr 37shy38 Apx __)
Defendantrsquos aunt Casie Church lives in the Mullins home and was called to testify by defendant She stated that she was sitting on the front porch of the house during the late evening and early morning hours of July 28 and 29
(continued)
6
-8shy
so (Richardson 418 Tr 63 Apx __) Each of them encouraged defendant by
ldquo[e]gging him onrdquo and by ldquo[d]aringrdquo and ldquo[i]ncitingrdquo him to do so (Richardson
418 Tr 64 Apx __)
Defendant took a can of gasoline from the garage of the Mullins home and
went to the back of the Doster home (Richardson 418 Tr 64-65 Apx __)
Richardson Cotton Flowers and Vanderlinden served as lookouts with
Richardson following defendant to the Doster home and the other three remaining
across the street (Richardson 418 Tr 64-65 Apx __) Upon reaching the back
of the Doster home defendant either pried open or broke a window and poured
gasoline inside the house and on the windowsill (Richardson 418 Tr 65 111shy
114 Apx __)7 He then started the fire by holding a lighter up to the windowsill
and blowing until it ignited (Richardson 418 Tr 113 Apx __) Once the fire
was lit defendant and Richardson ran back across the street to join the others
where they celebrated and congratulated defendant (Richardson 418 Tr 65-66
6(continued)
(Church 419 Tr 45 Apx __) She testified that there was no one near the garage of the Mullins home during this time (Church 419 Tr 45 Apx __) But she stated that she did see someone named Mike sometime between 10 pm and 3 am (Church 419 Tr 45-46 Apx __)
7 Richardsonrsquos testimony indicates that it may have been a mixture of oil and gasoline (Richardson 418 Tr 65 Apx __)
-9shy
114-115 Apx __) Richardson testified that defendant set the fire because of the
Dostersrsquo race (Richardson 418 Tr 82 Apx __)
The Dosters had not yet moved into the Ziegler property and therefore were
not home at the time of the fire They had spent Sunday July 28 painting the
Ziegler property and left sometime between 7 pm and 8 pm (Doster 417 Tr
129 167-168 Apx __) Reginald Doster discovered there had been a fire when
he along with his wife and ten-year-old daughter returned to the home between 7
am and 9 am the next morning by which time the fire had burned out (Doster
doctrine recognizes that a court cannot be asked by counsel to take a step in a case
and later be convicted of error because it has complied with such requestrdquo)
(citation and internal quotations omitted) ldquoThis doctrine is a branch of the
doctrine of waiver by which courts prevent a party from inducing an erroneous
ruling and later seeking to profit from the legal consequences by having the
verdict vacatedrdquo Barrow 118 F3d at 490-491
Some courts have held that the existence of invited error forecloses any
-20shy
review ndash even for plain error See eg United States v Baker 432 F3d 1189
1216 (11th Cir 2005) cert denied 547 US 1085 (2006) (ldquoIt is a cardinal rule of
appellate review that a party may not challenge as error a ruling or other trial
proceeding invited by that party Where invited error exists it precludes a
court from invoking the plain error rule and reversingrdquo) United States v Fulford
980 F2d 1110 1116 (7th Cir 1992) (ldquoIt is well-settled that where error is invited
not even plain error permits reversalrdquo) This Court however has recognized an
exception holding that ldquo[i]nvited error does not foreclose relief when the
interests of justice demand otherwiserdquo Barrow 118 F3d at 491 In this Circuit
the question ldquo[w]hether the circumstances of a particular case justify deviation
from the normal rule of waiver under this doctrine is left largely to the discretion
of the appellate courtrdquo Ibid Nevertheless ldquo[u]nder the invited error doctrine an
error introduced by the complaining party will cause reversal only in the most
exceptional situationrdquo United States v Tandon 111 F3d 482 489 (6th Cir
1997) (citation and internal quotations omitted)
C Any Error By The District Court In Permitting The Challenged Statements Was Invited Error And Therefore Should Not Be Reviewed By This Court
Here all of the challenged statements were elicited by defendantrsquos retained
trial counsel Br 15-24 This plainly constitutes invited error See United States
-21shy
v Parikh 858 F2d 688 695 (11th Cir 1988) (ldquoWe hold that the admission of out
of court statements by a government witness when responding to an inquiry by
defense counsel creates lsquoinvited errorrsquordquo) See also Baker 432 F3d at 1215-1216
(defendant ldquocannot now complain about the district courtrsquos errorrdquo where his
counsel ldquoinvited the errorrdquo by eliciting hearsay during cross-examination) United
States v Neal 78 F3d 901 904 (4th Cir 1996) (defendant ldquoinvited the errorrdquo and
it therefore ldquoprovides no basis for reversalrdquo where ldquo[a]t trial [defendant] did not
object to any of the statements he now challengesrdquo and ldquomost were elicited by his
own attorney from a government witness during cross-examinationrdquo) United
States v Reyes-Alvarado 963 F2d 1184 1187 (9th Cir 1992) cert denied 506
US 890 (1992) (finding invited error and refusing to reverse where ldquoappellantrsquos
counsel solicited the testimony which he now claims should have been excludedrdquo
and ldquodid not seek to strike this testimony at the time it was givenrdquo)9
As a threshold matter it bears noting that defendant fails to acknowledge
the existence of invited error and makes no argument as to why ldquothe interests of
justicerdquo Barrow 118 F3d at 491 require this Court to refrain from applying the
invited-error doctrine Accordingly defendant has waived any right to invoke the
9 This Court has reached a similar conclusion albeit in an unpublished decision See United States v Ali 38 Fed Appx 220 224 (6th Cir Mar 26 2002) (unpublished)
-22shy
interests-of-justice exception recognized by this Court See United States v
Samour 199 F3d 821 822 n1 (6th Cir 1999) (defendant ldquowaived his right to
argue the applicability of [favorable precedent] by failing to raise the issue on
appealrdquo)
Even if not waived however the interests of justice do not require this
Court to depart from the general rule that relief is foreclosed by invited error The
challenged statements were not the result of mere oversight or an isolated error by
defendantrsquos trial counsel Rather this appears to be a classic example of trial
strategy gone awry ndash not a situation in which failure to reverse contravenes the
interests of justice Indeed in this case the interests of justice weigh in favor of
invoking the invited-error doctrine as defendant presumably sought to benefit
from eliciting the challenged statements and thus should not now be heard to
argue their inadmissibility simply because his strategy failed See Reyes-
Alvarado 963 F2d at 1187 (ldquoFrom the transcript it appears that counsel thought
his pursuit of this line of questioning might benefit his client His tactics
backfired and his client was convicted A defendant cannot have it both
ways This was invited error and therefore not grounds for reversalrdquo)
Moreover the governmentrsquos trial counsel showed an abundance of caution
by specifically raising the issue and asking whether it should be discussed at
-23shy
sidebar10 This too weighs against a finding that the interests of justice require
reversal See Neal 78 F3d at 904 (ldquoAt one point the prosecutor even tried to
warn [defendantrsquos] attorney about pursuing a line of questioning relating to the
defendantrsquos prior conduct but [defendantrsquos] attorney persisted Under these
circumstances [defendant] cannot complain of error which he himself has
invitedrdquo) (citation and internal quotations omitted)
Simply put this case precisely illustrates both the purpose behind the
10 The following exchange occurred when defense counsel elicited statements from the witness regarding what Ricky Cotton told the government
[Defense Counsel] Just tell us what Ricky Cotton said and let me -shytell us what obviously is hearsay Irsquoll sit down Tell us what Ricky Cotton -shy
[Government Counsel] Your Honor should we have a sidebar on this
[The Court] What for
[Government Counsel] Irsquom not sure to figure out where we are
[Defense Counsel] This is where we are what Ricky Cotton said
[The Court] Are you objecting
[Government Counsel] If he doesnrsquot have any objection to the witness saying what Ricky Cotton said thatrsquos fine
[Defense Counsel] Letrsquos go Tell us what Ricky Cotton said
(418 Tr 173-174 Apx __)
-24shy
invited-error doctrine and the need to enforce it strictly Defendantrsquos appeal does
not challenge any action by the government Nor does he take issue with the
district courtrsquos instructions to the jury the sufficiency of the evidence to support
his conviction or the reasonableness of his sentence He also does not contend the
district court improperly ruled on any objection made by his trial counsel Rather
his arguments on appeal arise solely from the actions of his own retained trial
counsel Such claims must be rejected on their face as a contrary rule would
create perverse incentives for defendants to invite some small amount of error in
every trial so as to create grounds for appeal Accordingly this Court should
apply the invited-error doctrine and affirm the judgment below without reaching
the question whether plain error exists
II
THE DISTRICT COURT DID NOT COMMIT PLAIN ERROR IN FAILING TO SUA SPONTE PREVENT DEFENDANTrsquoS TRIAL COUNSEL FROM
ELICITING THE CHALLENGED TESTIMONY
As noted above in Section IA if this Court determines that the invited-
error doctrine does not apply it should review admission of the challenged
statements for plain error United States v Namey 364 F3d 843 846 (6th Cir
2004)
-25shy
A The Plain-Error Doctrine
ldquoThe plain error doctrine mandates reversal only in exceptional
circumstances and only where the error is so plain that the trial judge and
prosecutor were derelict in countenancing itrdquo United States v Gardiner 463 F3d
445 459 (6th Cir 2006) (quoting United States v Carroll 26 F3d 1380 1383
(6th Cir 1994)) It ldquois to be used sparingly only in exceptional circumstances
and solely to avoid a miscarriage of justicerdquo United States v Phillips 516 F3d
479 487 (6th Cir 2008) (quoting United States v Cox 957 F2d 264 267 (6th
Cir 1992))
ldquoTo show plain error a defendant must establish the following (1) error
(2) that is plain and (3) that affects substantial rights If these three conditions are
met an appellate court may then exercise its discretion to notice a forfeited error
but only if (4) the error seriously affects the fairness integrity or public reputation
of judicial proceedingsrdquo United States v Arnold 486 F3d 177 194 (6th Cir
2007) cert denied 128 S Ct 871 (2008) (citation and internal quotations
omitted) ldquoThe phrase lsquoaffects substantial rightsrsquo lsquomeans prejudicial It must have
affected the outcome of the district court proceedingsrsquordquo United States v
(ldquo[I]ssues adverted to in a perfunctory manner unaccompanied by some effort at
developed argumentation are deemed waivedrdquo) (quoting McPherson v Kelsey
125 F3d 989 995-996 (6th Cir 1997))
-27shy
C The Third And Fourth Prongs Of The Plain-Error Doctrine Are Not Satisfied In This Case Because Other Evidence Supporting Defendantrsquos Conviction Is Overwhelming
Even if the issue were fully briefed a finding of plain error would be
improper because defendant cannot satisfy the third or fourth prongs of the
inquiry The third prong of the plain-error inquiry ndash ie the requirement that the
error ldquoaffects substantial rightsrdquo Arnold 486 F3d at 194 by ldquoaffect[ing] the
outcome of the district court proceedingsrdquo Mooneyham 473 F3d at 288 ndash is not
satisfied where the evidence against the defendant is overwhelming See
Mooneyham 473 F3d at 288 United States v Hines 398 F3d 713 718-719 (6th
Cir) cert denied 545 US 1134 (2005)
Likewise the fourth prong of the inquiry ndash ie the requirement that the
error be said to have ldquoseriously affect[ed] the fairness integrity or public
reputation of judicial proceedingsrdquo Arnold 486 F3d at 194 ndash also is not met when
other evidence is ldquooverwhelmingrdquo and ldquoessentially uncontrovertedrdquo See United
States v Cotton 535 US 625 632-633 (2002) Johnson v United States 520
US 461 469-470 (1997) Hines 398 F3d at 718-719 Indeed as both the
Supreme Court and this Court have recognized with regard to the fourth prong of
the inquiry in some cases ldquoit would be the reversal of a conviction which
would have th[e] effectrdquo of ldquoseriously affect[ing] the fairness integrity or public
-28shy
reputation of judicial proceedingsrdquo Johnson 520 US at 470 (internal quotations
omitted) (emphasis added) see also United States v McGhee 119 F3d 422 424shy
425 (6th Cir 1997) This is so because ldquo[r]eversal for error regardless of its effect
on the judgment encourages litigants to abuse the judicial process and bestirs the
public to ridicule itrdquo Johnson 520 US at 470 (citation and internal quotations
omitted) see also McGhee 119 F3d at 424-425
In view of the foregoing courts often cite the presence of overwhelming
evidence as the basis for concluding that a defendant has failed to meet both the
third and fourth prongs of the plain-error inquiry See Hines 398 F3d at 718-719
United States v Dedhia 134 F3d 802 809 (6th Cir) cert denied 523 US 1145
(1998) see also United States v Birk 453 F3d 893 898 (7th Cir 2006) United
States v Taylor 284 F3d 95 102 (1st Cir) cert denied 536 US 933 (2002)
This Court should follow that approach here as there is overwhelming evidence ndash
separate and apart from the challenged statements ndash to support defendantrsquos
conviction Specifically as explained more fully below testimony at trial
established that defendant (1) spoke openly to others during the weeks leading up
to the fire regarding his desire to force the Dosters from the neighborhood (2) was
the one who set the fire (3) confided to a friend afterward that he both set the fire
and performed the lawn job with the intent to drive the Dosters away because of
-29shy
their race and (4) told conflicting stories to the FBI during the course of its
investigation one of which included an admission that he was at least indirectly
involved in setting the fire
1 Defendantrsquos Statements Prior To The Fire
Two witnesses offered detailed accounts of conversations they had with
defendant prior to the date of the fire During these conversations defendant
expressed his desire to drive the Dosters from their home
Guy Wurts testified that in mid-July 2002 Defendant said something to the
effect of ldquoI got to get rid of these niggers Irsquoll find something to do I donrsquot know
what I got to get these niggers out [of] the neighborhoodrdquo (Wurts 417 Tr 208shy
209 Apx __) Wurts testified that defendant looked in the Dostersrsquo direction
when he made these comments and said the word ldquoniggerrdquo loud enough for the
Dosters ndash who were working in their yard at the time ndash to hear it (Wurts 417 Tr
202-203 209-210 Apx __) Wurts further testified that defendant ldquoseemed
seriousrdquo when he made these statements (Wurts 417 Tr 259 Apx __)
Debbie Daniely recounted similar statements by defendant Specifically
defendant told Daniely more than once that he was very upset about the Dosters
moving into the neighborhood saying something to the effect of ldquoniggers are
moving inrdquo and ldquo[w]e have to do something about itrdquo (Daniely 418 Tr 22-25
-30shy
Apx __) Defendant later admitted to the FBI that he made such a statement to
ldquo[t]his Court has lsquoroutinely concluded that such claims are best brought by a
defendant in a post-conviction proceeding under 28 USC sect 2255 so that the
-37shy
parties can develop an adequate record on the issuersquordquo Martinez 430 F3d at 338
(quoting United States v Brown 332 F3d 363 368 (6th Cir 2003)) ldquoThere is
however lsquoa narrow exceptionrsquo to this rule lsquowhen the existing record is adequate to
assess properly the merits of the claimrsquordquo United States v Hynes 467 F3d 951
969 (6th Cir 2006) (quoting United States v Franklin 415 F3d 537 555-556
(6th Cir 2005)) See also United States v Winkle 477 F3d 407 421 (6th Cir
2007) (ldquoThis Court typically will not review a claim of ineffective assistance on
direct appeal except in rare cases where the error is apparent from the existing
recordrdquo) (quoting United States v Lopez-Medina 461 F3d 724 737 (6th Cir
2006))
No basis exists for departing from the general rule against addressing
ineffective-assistance claims on direct appeal As this Court has noted ldquo[t]he trial
process contains a myriad of complex decisions that for strategic reasons are
sound when made but may appear unsound with the benefit of hindsightrdquo United
States v Davis 306 F3d 398 422 (6th Cir 2002) cert denied 537 US 1208
(2003) (quoting United States v Fortson 194 F3d 730 736 (6th Cir 1999))
Moreover ldquo[j]udicial scrutiny of counselrsquos performance must be highly
deferentialrdquo and ldquoa court must indulge a strong presumption that counselrsquos
conduct falls within the wide range of reasonable professional assistancerdquo
-38shy
Strickland v Washington 466 US 668 689 (1984) Thus to establish ineffective
assistance ldquothe defendant must overcome the presumption that under the
circumstances the challenged action lsquomight be considered sound trial strategyrsquordquo
Ibid (quoting Michel v Louisiana 350 US 91 101 (1955))
Here the decision by defendantrsquos retained trial counsel to elicit the
challenged statements during cross-examination of a government witness
undeniably constitutes an element of trial strategy that cannot be analyzed at this
stage of the proceedings In particular because this is a direct appeal there is no
evidence in the record regarding defense counselrsquos trial strategy This Court
repeatedly has refused to review ineffective-assistance claims under such
circumstances See eg Lopez-Medina 461 F3d at 737 (ldquoAbsent evidence
specifically addressing counselrsquos performance we cannot determine whether his
actions reflected a reasoned trial strategyrdquo) United States v Sullivan 431 F3d
976 986 (6th Cir 2005) (ldquoWithout an explanation from trial counsel as to why he
failed to call the alibi witness we have no basis to determine whether this decision
was the result of inadequate representation or reasonable trial strategyrdquo) United
States v Allison 59 F3d 43 47 (6th Cir) cert denied 516 US 1002 (1995)
(ldquo[T]he sparse record before this court does not reveal whether the attorneyrsquos
actions could be considered sound trial strategyrdquo) United States v Snow 48 F3d
-39shy
198 199 (6th Cir 1995) (ldquoThe record before this court simply is insufficient to
show whether the alleged wrongful acts could be considered sound trial
strategyrdquo) Thus defendantrsquos ineffective-assistance claim must be examined ndash if
at all ndash in a separate collateral proceeding brought pursuant to Section 2255
C The Evidence That Is Available In The Record Does Not Support A Finding Of Ineffective Assistance Of Counsel
As stated above the governmentrsquos position is that the current record is not
sufficient to permit this Court to address defendantrsquos ineffective-assistance claim
in this direct appeal However if the Court disagrees ndash or desires in the interest of
judicial economy to address defendantrsquos claim on direct appeal ndash it should reject
the claim because defendant fails to satisfy the second prong of the ineffective-
assistance inquiry11
11 The government does not concede that the first prong of the Strickland inquiry is satisfied in this case Rather as noted above it is not possible to resolve the issue at this point because the record does not indicate precisely what defendantrsquos trial counsel was thinking what his strategy was or why he elected to pursue certain lines of questioning In the event that defendant elects to bring a collateral challenge pursuant to Section 2255 the government reserves the right to address the first prong of Strickland inquiry and to further develop its argument as to the second prong The governmentrsquos decision not to do so in this brief is based on the incomplete nature of the record with regard to the Strickland inquiry and should not be construed as a waiver or forfeiture of any arguments relating to defendantrsquos ineffective-assistance claim
-40shy
1 Standard For Establishing Ineffective Assistance Of Counsel
To prove ineffective assistance of counsel under Strickland a defendant
first ldquomust demonstrate that counselrsquos performance fell lsquobelow the objective
standard of reasonablenessrsquordquo Ivory v Jackson 509 F3d 284 294 (6th Cir 2007)
cert denied 128 S Ct 1897 (2008) (quoting Strickland 466 US at 688)) ldquoThe
defendant must then demonstrate that lsquothere is a reasonable probability that but
for counselrsquos unprofessional errors the result of the proceeding would have been
different A reasonable probability is a probability sufficient to undermine the
confidence in the outcomersquordquo Ibid (quoting Strickland 466 US at 694)
Significantly this Court ldquoneed not decide whether defense counsel
performed deficiently if disposing of an ineffective-assistance claim on the ground
of lack of sufficient prejudice would be easierrdquo Hynes 467 F3d at 970 See also
Ivory 509 F3d at 294 (ldquo[A] court need not determine whether counselrsquos
performance was deficient before examining the prejudice suffered by the
defendant as a result of the alleged deficiencies If it is easier to dispose of
an ineffectiveness claim on the ground of lack of sufficient prejudice which we
expect will often be so that course should be followedrdquo) (quoting Strickland 466
US at 697)
-41shy
2 Defendant Is Unable To Demonstrate Sufficient Prejudice And Therefore Cannot Satisfy The Second Prong Of The Inquiry
ldquoTo show prejudice [defendant] must demonstrate that lsquothere is a
reasonable probability that but for counselrsquos unprofessional errors the result of
the proceeding would have been differentrsquordquo Harrison v Motley 478 F3d 750
756 (6th Cir) cert denied 128 S Ct 444 (2007) (quoting Strickland 466 US at
694)) As set forth above in Section IIC the evidence of defendantrsquos guilt is
overwhelming and the result therefore would not have been different absent the
challenged statements This Court repeatedly has determined that the second
prong of the Strickland inquiry is not met under such circumstances See eg
Harrison 478 F3d at 757 (defendant ldquofailed to show that his attorneysrsquo alleged
conflict of interest resulted in prejudicerdquo where ldquothe evidence admitted against
[defendant] at trial was lsquooverwhelmingrsquordquo) Hicks v Collins 384 F3d 204 215
(6th Cir 2004) cert denied 545 US 1155 (2005) (holding that defendant cannot
satisfy the second prong of Strickland where ldquothere was overwhelming evidence of
[defendantrsquos] guiltrdquo) Campbell v United States 364 F3d 727 736 (6th Cir
2004) cert denied 543 US 1119 (2005) (ldquoGiven the overwhelming evidence
establishing [defendantrsquos] guilt we believe that he would not have been able to
show that but for his attorneyrsquos failure to object to the prosecutorrsquos alleged
-42shy
misconduct the result would have been differentrdquo)
Accordingly even if this Court determines that the record is sufficient for it
to address defendantrsquos ineffective-assistance claim on direct appeal it should
reject this claim based on his failure to satisfy the second prong of the Strickland
inquiry
CONCLUSION
For the foregoing reasons this Court should affirm the judgment below
Respectfully submitted
GRACE CHUNG BECKER Acting Assistant Attorney General Civil Rights Division
DIANA K FLYNN DIRK C PHILLIPS Attorneys US Department of Justice Civil Rights Divisions Appellate Section Ben Franklin Station PO Box 14403 Washington DC 20044-4403 (202) 305-4876
CERTIFICATE OF COMPLIANCE
Pursuant to Federal Rule of Appellate Procedure 32(a)(7)(B) I hereby
certify that this brief is proportionally spaced 14-point Times New Roman font
Per WordPerfect 12 software the brief contains 9022 words excluding those
parts exempted by Federal Rule of Appellate Procedure 32(a)(7)(B)(iii)
DIRK C PHILLIPS Attorney
DATED June 18 2008
CERTIFICATE OF SERVICE
I hereby certify that on June 18 2008 a copy of the foregoing PROOF
BRIEF FOR THE UNITED STATES AS PLAINTIFF-APPELLEE was served by
first class mail postage prepaid on counsel of record at the following address
Joan E Morgan 2057 Orchard Lake Road Sylvan Lake MI 48320
DIRK C PHILLIPS Attorney
APPELLEErsquoS DESIGNATION OF APPENDIX CONTENTS
APPELLEErsquoS DESIGNATION OF APPENDIX CONTENTS
Appellee United States of America designates the following items to be
As such the Dostersrsquo purchase of and efforts to refurbish the house across
the street from the Mullins home did not go unnoticed by defendant or certain
other members of the neighborhood Indeed it was a topic of conversation among
those who were not happy about an African-American family moving into the
neighborhood (Daniely 418 Tr 17-18 Apx __)
During the period in which the Dosters were refurbishing the property
defendant made comments to friends regarding his desire to drive the Dosters from
the neighborhood One such incident occurred during the middle part of July
2002 (Wurts 417 Tr 208-209 Apx __) Defendant and a friend Guy Wurts
were standing in the back of Wurtsrsquo pickup truck which was parked in front of the
Mullins home (Wurts 417 Tr 202 Apx __) The Dosters were out working in
their yard at the time (Wurts 417 Tr 202-203 209 Apx __) Defendant said
something to the effect of ldquoI got to get rid of these niggers Irsquoll find something to
do I donrsquot know what I got to get these niggers out [of] the neighborhoodrdquo
(Wurts 417 Tr 209 Apx __)2 Defendant was looking in the Dostersrsquo direction
2 Similar descriptions of defendantrsquos statements appear elsewhere in Wurtsrsquo testimony (Wurts 417 Tr 201-202 209 260 Apx __)
-6shy
when he made these comments and said the word ldquoniggerrdquo loud enough for the
Dosters to hear it (Wurts 417 Tr 209-210 Apx __) Wurts testified that
defendant was a racist and that defendant ldquoseemed seriousrdquo when he made these
statements (Wurts 417 Tr 239-240 259-260 Apx __)
Debbie Daniely a neighbor and friend of the Mullins family (Daniely 418
Tr 6-8 Apx __) recounted similar statements by defendant Defendant told
Daniely more than once that he was very upset about the Dosters moving into the
neighborhood (Daniely 418 Tr 22 Apx __) She testified that defendant said
something to the effect of ldquoniggers are moving inrdquo and ldquo[w]e have to do something
about itrdquo (Daniely 418 Tr 23 Apx __)3 She believed he was serious when he
said such things (Daniely 418 Tr 25 Apx __)
3 The Fire
During the afternoon of Sunday July 28 2002 defendant along with Lee
Vanderlinden Don Flowers Chuck Proctor Michael Richardson and Ricky
Cotton4 were working in the yard of a neighbor Ann Hixon (Richardson 418
3 Defendant later admitted to the FBI that he made such a statement to Daniely (Rees 418 Tr 203 Apx __)
4 Lee Vanderlinden was the boyfriend of defendantrsquos mother and has lived in the Mullins home since at least 1996 or 1997 (Wurts 417 Tr 197-198 Apx __) Don Flowers was a friend of the Mullins family who often would socialize
(continued)
-7shy
Tr 56-58 Apx __)5 A group that included defendant Richardson Vanderlinden
Flowers and Cotton began making comments about ldquothe niggers next doorrdquo
(Richardson 418 Tr 58-59 Apx __) Richardson suggested burning a cross in
order to drive the Dosters away (Richardson 418 Tr 61 Apx __) Defendant
however went further suggesting they ldquo[t]orch the houserdquo and told the others to
come back later that night (Richardson 418 Tr 62-63 Apx __) Richardson
Vanderlinden Cotton and Flowers returned that evening and met defendant at the
Mullins home across the street from the Dosters (Richardson 418 Tr 63 Apx
__)6 They discussed ldquo[t]orchingrdquo the Doster home and all were in favor of doing
4(continued)
with Lee Vanderlinden at the Mullins home (Church 419 Tr 58-59 Apx __) Chuck Proctor worked with Lee Vanderlinden and often would hang around the Mullins home (Wurts 417 Tr 199-200 Apx __ Church 419 Tr 57-58 Apx __) Michael Richardson was a good friend of defendant who spent a lot of time at the Mullins home (Wurts 417 Tr 201 Apx __) Ricky Cotton lived nearby and also was a regular at the Mullins home (Wurts 417 Tr 200-201 Apx __) As noted above Richardson and Cotton both pled guilty in this case (R 92106 and 41207 plea hearings)
5 Ann Hixon was called by the defense and testified that this gathering could not have taken place on Sunday July 28 She testified that it occurred sometime during the Spring (she could not recall which year) and that it could not have been a Sunday because she always works on Sundays (Hixon 419 Tr 37shy38 Apx __)
Defendantrsquos aunt Casie Church lives in the Mullins home and was called to testify by defendant She stated that she was sitting on the front porch of the house during the late evening and early morning hours of July 28 and 29
(continued)
6
-8shy
so (Richardson 418 Tr 63 Apx __) Each of them encouraged defendant by
ldquo[e]gging him onrdquo and by ldquo[d]aringrdquo and ldquo[i]ncitingrdquo him to do so (Richardson
418 Tr 64 Apx __)
Defendant took a can of gasoline from the garage of the Mullins home and
went to the back of the Doster home (Richardson 418 Tr 64-65 Apx __)
Richardson Cotton Flowers and Vanderlinden served as lookouts with
Richardson following defendant to the Doster home and the other three remaining
across the street (Richardson 418 Tr 64-65 Apx __) Upon reaching the back
of the Doster home defendant either pried open or broke a window and poured
gasoline inside the house and on the windowsill (Richardson 418 Tr 65 111shy
114 Apx __)7 He then started the fire by holding a lighter up to the windowsill
and blowing until it ignited (Richardson 418 Tr 113 Apx __) Once the fire
was lit defendant and Richardson ran back across the street to join the others
where they celebrated and congratulated defendant (Richardson 418 Tr 65-66
6(continued)
(Church 419 Tr 45 Apx __) She testified that there was no one near the garage of the Mullins home during this time (Church 419 Tr 45 Apx __) But she stated that she did see someone named Mike sometime between 10 pm and 3 am (Church 419 Tr 45-46 Apx __)
7 Richardsonrsquos testimony indicates that it may have been a mixture of oil and gasoline (Richardson 418 Tr 65 Apx __)
-9shy
114-115 Apx __) Richardson testified that defendant set the fire because of the
Dostersrsquo race (Richardson 418 Tr 82 Apx __)
The Dosters had not yet moved into the Ziegler property and therefore were
not home at the time of the fire They had spent Sunday July 28 painting the
Ziegler property and left sometime between 7 pm and 8 pm (Doster 417 Tr
129 167-168 Apx __) Reginald Doster discovered there had been a fire when
he along with his wife and ten-year-old daughter returned to the home between 7
am and 9 am the next morning by which time the fire had burned out (Doster
doctrine recognizes that a court cannot be asked by counsel to take a step in a case
and later be convicted of error because it has complied with such requestrdquo)
(citation and internal quotations omitted) ldquoThis doctrine is a branch of the
doctrine of waiver by which courts prevent a party from inducing an erroneous
ruling and later seeking to profit from the legal consequences by having the
verdict vacatedrdquo Barrow 118 F3d at 490-491
Some courts have held that the existence of invited error forecloses any
-20shy
review ndash even for plain error See eg United States v Baker 432 F3d 1189
1216 (11th Cir 2005) cert denied 547 US 1085 (2006) (ldquoIt is a cardinal rule of
appellate review that a party may not challenge as error a ruling or other trial
proceeding invited by that party Where invited error exists it precludes a
court from invoking the plain error rule and reversingrdquo) United States v Fulford
980 F2d 1110 1116 (7th Cir 1992) (ldquoIt is well-settled that where error is invited
not even plain error permits reversalrdquo) This Court however has recognized an
exception holding that ldquo[i]nvited error does not foreclose relief when the
interests of justice demand otherwiserdquo Barrow 118 F3d at 491 In this Circuit
the question ldquo[w]hether the circumstances of a particular case justify deviation
from the normal rule of waiver under this doctrine is left largely to the discretion
of the appellate courtrdquo Ibid Nevertheless ldquo[u]nder the invited error doctrine an
error introduced by the complaining party will cause reversal only in the most
exceptional situationrdquo United States v Tandon 111 F3d 482 489 (6th Cir
1997) (citation and internal quotations omitted)
C Any Error By The District Court In Permitting The Challenged Statements Was Invited Error And Therefore Should Not Be Reviewed By This Court
Here all of the challenged statements were elicited by defendantrsquos retained
trial counsel Br 15-24 This plainly constitutes invited error See United States
-21shy
v Parikh 858 F2d 688 695 (11th Cir 1988) (ldquoWe hold that the admission of out
of court statements by a government witness when responding to an inquiry by
defense counsel creates lsquoinvited errorrsquordquo) See also Baker 432 F3d at 1215-1216
(defendant ldquocannot now complain about the district courtrsquos errorrdquo where his
counsel ldquoinvited the errorrdquo by eliciting hearsay during cross-examination) United
States v Neal 78 F3d 901 904 (4th Cir 1996) (defendant ldquoinvited the errorrdquo and
it therefore ldquoprovides no basis for reversalrdquo where ldquo[a]t trial [defendant] did not
object to any of the statements he now challengesrdquo and ldquomost were elicited by his
own attorney from a government witness during cross-examinationrdquo) United
States v Reyes-Alvarado 963 F2d 1184 1187 (9th Cir 1992) cert denied 506
US 890 (1992) (finding invited error and refusing to reverse where ldquoappellantrsquos
counsel solicited the testimony which he now claims should have been excludedrdquo
and ldquodid not seek to strike this testimony at the time it was givenrdquo)9
As a threshold matter it bears noting that defendant fails to acknowledge
the existence of invited error and makes no argument as to why ldquothe interests of
justicerdquo Barrow 118 F3d at 491 require this Court to refrain from applying the
invited-error doctrine Accordingly defendant has waived any right to invoke the
9 This Court has reached a similar conclusion albeit in an unpublished decision See United States v Ali 38 Fed Appx 220 224 (6th Cir Mar 26 2002) (unpublished)
-22shy
interests-of-justice exception recognized by this Court See United States v
Samour 199 F3d 821 822 n1 (6th Cir 1999) (defendant ldquowaived his right to
argue the applicability of [favorable precedent] by failing to raise the issue on
appealrdquo)
Even if not waived however the interests of justice do not require this
Court to depart from the general rule that relief is foreclosed by invited error The
challenged statements were not the result of mere oversight or an isolated error by
defendantrsquos trial counsel Rather this appears to be a classic example of trial
strategy gone awry ndash not a situation in which failure to reverse contravenes the
interests of justice Indeed in this case the interests of justice weigh in favor of
invoking the invited-error doctrine as defendant presumably sought to benefit
from eliciting the challenged statements and thus should not now be heard to
argue their inadmissibility simply because his strategy failed See Reyes-
Alvarado 963 F2d at 1187 (ldquoFrom the transcript it appears that counsel thought
his pursuit of this line of questioning might benefit his client His tactics
backfired and his client was convicted A defendant cannot have it both
ways This was invited error and therefore not grounds for reversalrdquo)
Moreover the governmentrsquos trial counsel showed an abundance of caution
by specifically raising the issue and asking whether it should be discussed at
-23shy
sidebar10 This too weighs against a finding that the interests of justice require
reversal See Neal 78 F3d at 904 (ldquoAt one point the prosecutor even tried to
warn [defendantrsquos] attorney about pursuing a line of questioning relating to the
defendantrsquos prior conduct but [defendantrsquos] attorney persisted Under these
circumstances [defendant] cannot complain of error which he himself has
invitedrdquo) (citation and internal quotations omitted)
Simply put this case precisely illustrates both the purpose behind the
10 The following exchange occurred when defense counsel elicited statements from the witness regarding what Ricky Cotton told the government
[Defense Counsel] Just tell us what Ricky Cotton said and let me -shytell us what obviously is hearsay Irsquoll sit down Tell us what Ricky Cotton -shy
[Government Counsel] Your Honor should we have a sidebar on this
[The Court] What for
[Government Counsel] Irsquom not sure to figure out where we are
[Defense Counsel] This is where we are what Ricky Cotton said
[The Court] Are you objecting
[Government Counsel] If he doesnrsquot have any objection to the witness saying what Ricky Cotton said thatrsquos fine
[Defense Counsel] Letrsquos go Tell us what Ricky Cotton said
(418 Tr 173-174 Apx __)
-24shy
invited-error doctrine and the need to enforce it strictly Defendantrsquos appeal does
not challenge any action by the government Nor does he take issue with the
district courtrsquos instructions to the jury the sufficiency of the evidence to support
his conviction or the reasonableness of his sentence He also does not contend the
district court improperly ruled on any objection made by his trial counsel Rather
his arguments on appeal arise solely from the actions of his own retained trial
counsel Such claims must be rejected on their face as a contrary rule would
create perverse incentives for defendants to invite some small amount of error in
every trial so as to create grounds for appeal Accordingly this Court should
apply the invited-error doctrine and affirm the judgment below without reaching
the question whether plain error exists
II
THE DISTRICT COURT DID NOT COMMIT PLAIN ERROR IN FAILING TO SUA SPONTE PREVENT DEFENDANTrsquoS TRIAL COUNSEL FROM
ELICITING THE CHALLENGED TESTIMONY
As noted above in Section IA if this Court determines that the invited-
error doctrine does not apply it should review admission of the challenged
statements for plain error United States v Namey 364 F3d 843 846 (6th Cir
2004)
-25shy
A The Plain-Error Doctrine
ldquoThe plain error doctrine mandates reversal only in exceptional
circumstances and only where the error is so plain that the trial judge and
prosecutor were derelict in countenancing itrdquo United States v Gardiner 463 F3d
445 459 (6th Cir 2006) (quoting United States v Carroll 26 F3d 1380 1383
(6th Cir 1994)) It ldquois to be used sparingly only in exceptional circumstances
and solely to avoid a miscarriage of justicerdquo United States v Phillips 516 F3d
479 487 (6th Cir 2008) (quoting United States v Cox 957 F2d 264 267 (6th
Cir 1992))
ldquoTo show plain error a defendant must establish the following (1) error
(2) that is plain and (3) that affects substantial rights If these three conditions are
met an appellate court may then exercise its discretion to notice a forfeited error
but only if (4) the error seriously affects the fairness integrity or public reputation
of judicial proceedingsrdquo United States v Arnold 486 F3d 177 194 (6th Cir
2007) cert denied 128 S Ct 871 (2008) (citation and internal quotations
omitted) ldquoThe phrase lsquoaffects substantial rightsrsquo lsquomeans prejudicial It must have
affected the outcome of the district court proceedingsrsquordquo United States v
(ldquo[I]ssues adverted to in a perfunctory manner unaccompanied by some effort at
developed argumentation are deemed waivedrdquo) (quoting McPherson v Kelsey
125 F3d 989 995-996 (6th Cir 1997))
-27shy
C The Third And Fourth Prongs Of The Plain-Error Doctrine Are Not Satisfied In This Case Because Other Evidence Supporting Defendantrsquos Conviction Is Overwhelming
Even if the issue were fully briefed a finding of plain error would be
improper because defendant cannot satisfy the third or fourth prongs of the
inquiry The third prong of the plain-error inquiry ndash ie the requirement that the
error ldquoaffects substantial rightsrdquo Arnold 486 F3d at 194 by ldquoaffect[ing] the
outcome of the district court proceedingsrdquo Mooneyham 473 F3d at 288 ndash is not
satisfied where the evidence against the defendant is overwhelming See
Mooneyham 473 F3d at 288 United States v Hines 398 F3d 713 718-719 (6th
Cir) cert denied 545 US 1134 (2005)
Likewise the fourth prong of the inquiry ndash ie the requirement that the
error be said to have ldquoseriously affect[ed] the fairness integrity or public
reputation of judicial proceedingsrdquo Arnold 486 F3d at 194 ndash also is not met when
other evidence is ldquooverwhelmingrdquo and ldquoessentially uncontrovertedrdquo See United
States v Cotton 535 US 625 632-633 (2002) Johnson v United States 520
US 461 469-470 (1997) Hines 398 F3d at 718-719 Indeed as both the
Supreme Court and this Court have recognized with regard to the fourth prong of
the inquiry in some cases ldquoit would be the reversal of a conviction which
would have th[e] effectrdquo of ldquoseriously affect[ing] the fairness integrity or public
-28shy
reputation of judicial proceedingsrdquo Johnson 520 US at 470 (internal quotations
omitted) (emphasis added) see also United States v McGhee 119 F3d 422 424shy
425 (6th Cir 1997) This is so because ldquo[r]eversal for error regardless of its effect
on the judgment encourages litigants to abuse the judicial process and bestirs the
public to ridicule itrdquo Johnson 520 US at 470 (citation and internal quotations
omitted) see also McGhee 119 F3d at 424-425
In view of the foregoing courts often cite the presence of overwhelming
evidence as the basis for concluding that a defendant has failed to meet both the
third and fourth prongs of the plain-error inquiry See Hines 398 F3d at 718-719
United States v Dedhia 134 F3d 802 809 (6th Cir) cert denied 523 US 1145
(1998) see also United States v Birk 453 F3d 893 898 (7th Cir 2006) United
States v Taylor 284 F3d 95 102 (1st Cir) cert denied 536 US 933 (2002)
This Court should follow that approach here as there is overwhelming evidence ndash
separate and apart from the challenged statements ndash to support defendantrsquos
conviction Specifically as explained more fully below testimony at trial
established that defendant (1) spoke openly to others during the weeks leading up
to the fire regarding his desire to force the Dosters from the neighborhood (2) was
the one who set the fire (3) confided to a friend afterward that he both set the fire
and performed the lawn job with the intent to drive the Dosters away because of
-29shy
their race and (4) told conflicting stories to the FBI during the course of its
investigation one of which included an admission that he was at least indirectly
involved in setting the fire
1 Defendantrsquos Statements Prior To The Fire
Two witnesses offered detailed accounts of conversations they had with
defendant prior to the date of the fire During these conversations defendant
expressed his desire to drive the Dosters from their home
Guy Wurts testified that in mid-July 2002 Defendant said something to the
effect of ldquoI got to get rid of these niggers Irsquoll find something to do I donrsquot know
what I got to get these niggers out [of] the neighborhoodrdquo (Wurts 417 Tr 208shy
209 Apx __) Wurts testified that defendant looked in the Dostersrsquo direction
when he made these comments and said the word ldquoniggerrdquo loud enough for the
Dosters ndash who were working in their yard at the time ndash to hear it (Wurts 417 Tr
202-203 209-210 Apx __) Wurts further testified that defendant ldquoseemed
seriousrdquo when he made these statements (Wurts 417 Tr 259 Apx __)
Debbie Daniely recounted similar statements by defendant Specifically
defendant told Daniely more than once that he was very upset about the Dosters
moving into the neighborhood saying something to the effect of ldquoniggers are
moving inrdquo and ldquo[w]e have to do something about itrdquo (Daniely 418 Tr 22-25
-30shy
Apx __) Defendant later admitted to the FBI that he made such a statement to
ldquo[t]his Court has lsquoroutinely concluded that such claims are best brought by a
defendant in a post-conviction proceeding under 28 USC sect 2255 so that the
-37shy
parties can develop an adequate record on the issuersquordquo Martinez 430 F3d at 338
(quoting United States v Brown 332 F3d 363 368 (6th Cir 2003)) ldquoThere is
however lsquoa narrow exceptionrsquo to this rule lsquowhen the existing record is adequate to
assess properly the merits of the claimrsquordquo United States v Hynes 467 F3d 951
969 (6th Cir 2006) (quoting United States v Franklin 415 F3d 537 555-556
(6th Cir 2005)) See also United States v Winkle 477 F3d 407 421 (6th Cir
2007) (ldquoThis Court typically will not review a claim of ineffective assistance on
direct appeal except in rare cases where the error is apparent from the existing
recordrdquo) (quoting United States v Lopez-Medina 461 F3d 724 737 (6th Cir
2006))
No basis exists for departing from the general rule against addressing
ineffective-assistance claims on direct appeal As this Court has noted ldquo[t]he trial
process contains a myriad of complex decisions that for strategic reasons are
sound when made but may appear unsound with the benefit of hindsightrdquo United
States v Davis 306 F3d 398 422 (6th Cir 2002) cert denied 537 US 1208
(2003) (quoting United States v Fortson 194 F3d 730 736 (6th Cir 1999))
Moreover ldquo[j]udicial scrutiny of counselrsquos performance must be highly
deferentialrdquo and ldquoa court must indulge a strong presumption that counselrsquos
conduct falls within the wide range of reasonable professional assistancerdquo
-38shy
Strickland v Washington 466 US 668 689 (1984) Thus to establish ineffective
assistance ldquothe defendant must overcome the presumption that under the
circumstances the challenged action lsquomight be considered sound trial strategyrsquordquo
Ibid (quoting Michel v Louisiana 350 US 91 101 (1955))
Here the decision by defendantrsquos retained trial counsel to elicit the
challenged statements during cross-examination of a government witness
undeniably constitutes an element of trial strategy that cannot be analyzed at this
stage of the proceedings In particular because this is a direct appeal there is no
evidence in the record regarding defense counselrsquos trial strategy This Court
repeatedly has refused to review ineffective-assistance claims under such
circumstances See eg Lopez-Medina 461 F3d at 737 (ldquoAbsent evidence
specifically addressing counselrsquos performance we cannot determine whether his
actions reflected a reasoned trial strategyrdquo) United States v Sullivan 431 F3d
976 986 (6th Cir 2005) (ldquoWithout an explanation from trial counsel as to why he
failed to call the alibi witness we have no basis to determine whether this decision
was the result of inadequate representation or reasonable trial strategyrdquo) United
States v Allison 59 F3d 43 47 (6th Cir) cert denied 516 US 1002 (1995)
(ldquo[T]he sparse record before this court does not reveal whether the attorneyrsquos
actions could be considered sound trial strategyrdquo) United States v Snow 48 F3d
-39shy
198 199 (6th Cir 1995) (ldquoThe record before this court simply is insufficient to
show whether the alleged wrongful acts could be considered sound trial
strategyrdquo) Thus defendantrsquos ineffective-assistance claim must be examined ndash if
at all ndash in a separate collateral proceeding brought pursuant to Section 2255
C The Evidence That Is Available In The Record Does Not Support A Finding Of Ineffective Assistance Of Counsel
As stated above the governmentrsquos position is that the current record is not
sufficient to permit this Court to address defendantrsquos ineffective-assistance claim
in this direct appeal However if the Court disagrees ndash or desires in the interest of
judicial economy to address defendantrsquos claim on direct appeal ndash it should reject
the claim because defendant fails to satisfy the second prong of the ineffective-
assistance inquiry11
11 The government does not concede that the first prong of the Strickland inquiry is satisfied in this case Rather as noted above it is not possible to resolve the issue at this point because the record does not indicate precisely what defendantrsquos trial counsel was thinking what his strategy was or why he elected to pursue certain lines of questioning In the event that defendant elects to bring a collateral challenge pursuant to Section 2255 the government reserves the right to address the first prong of Strickland inquiry and to further develop its argument as to the second prong The governmentrsquos decision not to do so in this brief is based on the incomplete nature of the record with regard to the Strickland inquiry and should not be construed as a waiver or forfeiture of any arguments relating to defendantrsquos ineffective-assistance claim
-40shy
1 Standard For Establishing Ineffective Assistance Of Counsel
To prove ineffective assistance of counsel under Strickland a defendant
first ldquomust demonstrate that counselrsquos performance fell lsquobelow the objective
standard of reasonablenessrsquordquo Ivory v Jackson 509 F3d 284 294 (6th Cir 2007)
cert denied 128 S Ct 1897 (2008) (quoting Strickland 466 US at 688)) ldquoThe
defendant must then demonstrate that lsquothere is a reasonable probability that but
for counselrsquos unprofessional errors the result of the proceeding would have been
different A reasonable probability is a probability sufficient to undermine the
confidence in the outcomersquordquo Ibid (quoting Strickland 466 US at 694)
Significantly this Court ldquoneed not decide whether defense counsel
performed deficiently if disposing of an ineffective-assistance claim on the ground
of lack of sufficient prejudice would be easierrdquo Hynes 467 F3d at 970 See also
Ivory 509 F3d at 294 (ldquo[A] court need not determine whether counselrsquos
performance was deficient before examining the prejudice suffered by the
defendant as a result of the alleged deficiencies If it is easier to dispose of
an ineffectiveness claim on the ground of lack of sufficient prejudice which we
expect will often be so that course should be followedrdquo) (quoting Strickland 466
US at 697)
-41shy
2 Defendant Is Unable To Demonstrate Sufficient Prejudice And Therefore Cannot Satisfy The Second Prong Of The Inquiry
ldquoTo show prejudice [defendant] must demonstrate that lsquothere is a
reasonable probability that but for counselrsquos unprofessional errors the result of
the proceeding would have been differentrsquordquo Harrison v Motley 478 F3d 750
756 (6th Cir) cert denied 128 S Ct 444 (2007) (quoting Strickland 466 US at
694)) As set forth above in Section IIC the evidence of defendantrsquos guilt is
overwhelming and the result therefore would not have been different absent the
challenged statements This Court repeatedly has determined that the second
prong of the Strickland inquiry is not met under such circumstances See eg
Harrison 478 F3d at 757 (defendant ldquofailed to show that his attorneysrsquo alleged
conflict of interest resulted in prejudicerdquo where ldquothe evidence admitted against
[defendant] at trial was lsquooverwhelmingrsquordquo) Hicks v Collins 384 F3d 204 215
(6th Cir 2004) cert denied 545 US 1155 (2005) (holding that defendant cannot
satisfy the second prong of Strickland where ldquothere was overwhelming evidence of
[defendantrsquos] guiltrdquo) Campbell v United States 364 F3d 727 736 (6th Cir
2004) cert denied 543 US 1119 (2005) (ldquoGiven the overwhelming evidence
establishing [defendantrsquos] guilt we believe that he would not have been able to
show that but for his attorneyrsquos failure to object to the prosecutorrsquos alleged
-42shy
misconduct the result would have been differentrdquo)
Accordingly even if this Court determines that the record is sufficient for it
to address defendantrsquos ineffective-assistance claim on direct appeal it should
reject this claim based on his failure to satisfy the second prong of the Strickland
inquiry
CONCLUSION
For the foregoing reasons this Court should affirm the judgment below
Respectfully submitted
GRACE CHUNG BECKER Acting Assistant Attorney General Civil Rights Division
DIANA K FLYNN DIRK C PHILLIPS Attorneys US Department of Justice Civil Rights Divisions Appellate Section Ben Franklin Station PO Box 14403 Washington DC 20044-4403 (202) 305-4876
CERTIFICATE OF COMPLIANCE
Pursuant to Federal Rule of Appellate Procedure 32(a)(7)(B) I hereby
certify that this brief is proportionally spaced 14-point Times New Roman font
Per WordPerfect 12 software the brief contains 9022 words excluding those
parts exempted by Federal Rule of Appellate Procedure 32(a)(7)(B)(iii)
DIRK C PHILLIPS Attorney
DATED June 18 2008
CERTIFICATE OF SERVICE
I hereby certify that on June 18 2008 a copy of the foregoing PROOF
BRIEF FOR THE UNITED STATES AS PLAINTIFF-APPELLEE was served by
first class mail postage prepaid on counsel of record at the following address
Joan E Morgan 2057 Orchard Lake Road Sylvan Lake MI 48320
DIRK C PHILLIPS Attorney
APPELLEErsquoS DESIGNATION OF APPENDIX CONTENTS
APPELLEErsquoS DESIGNATION OF APPENDIX CONTENTS
Appellee United States of America designates the following items to be
when he made these comments and said the word ldquoniggerrdquo loud enough for the
Dosters to hear it (Wurts 417 Tr 209-210 Apx __) Wurts testified that
defendant was a racist and that defendant ldquoseemed seriousrdquo when he made these
statements (Wurts 417 Tr 239-240 259-260 Apx __)
Debbie Daniely a neighbor and friend of the Mullins family (Daniely 418
Tr 6-8 Apx __) recounted similar statements by defendant Defendant told
Daniely more than once that he was very upset about the Dosters moving into the
neighborhood (Daniely 418 Tr 22 Apx __) She testified that defendant said
something to the effect of ldquoniggers are moving inrdquo and ldquo[w]e have to do something
about itrdquo (Daniely 418 Tr 23 Apx __)3 She believed he was serious when he
said such things (Daniely 418 Tr 25 Apx __)
3 The Fire
During the afternoon of Sunday July 28 2002 defendant along with Lee
Vanderlinden Don Flowers Chuck Proctor Michael Richardson and Ricky
Cotton4 were working in the yard of a neighbor Ann Hixon (Richardson 418
3 Defendant later admitted to the FBI that he made such a statement to Daniely (Rees 418 Tr 203 Apx __)
4 Lee Vanderlinden was the boyfriend of defendantrsquos mother and has lived in the Mullins home since at least 1996 or 1997 (Wurts 417 Tr 197-198 Apx __) Don Flowers was a friend of the Mullins family who often would socialize
(continued)
-7shy
Tr 56-58 Apx __)5 A group that included defendant Richardson Vanderlinden
Flowers and Cotton began making comments about ldquothe niggers next doorrdquo
(Richardson 418 Tr 58-59 Apx __) Richardson suggested burning a cross in
order to drive the Dosters away (Richardson 418 Tr 61 Apx __) Defendant
however went further suggesting they ldquo[t]orch the houserdquo and told the others to
come back later that night (Richardson 418 Tr 62-63 Apx __) Richardson
Vanderlinden Cotton and Flowers returned that evening and met defendant at the
Mullins home across the street from the Dosters (Richardson 418 Tr 63 Apx
__)6 They discussed ldquo[t]orchingrdquo the Doster home and all were in favor of doing
4(continued)
with Lee Vanderlinden at the Mullins home (Church 419 Tr 58-59 Apx __) Chuck Proctor worked with Lee Vanderlinden and often would hang around the Mullins home (Wurts 417 Tr 199-200 Apx __ Church 419 Tr 57-58 Apx __) Michael Richardson was a good friend of defendant who spent a lot of time at the Mullins home (Wurts 417 Tr 201 Apx __) Ricky Cotton lived nearby and also was a regular at the Mullins home (Wurts 417 Tr 200-201 Apx __) As noted above Richardson and Cotton both pled guilty in this case (R 92106 and 41207 plea hearings)
5 Ann Hixon was called by the defense and testified that this gathering could not have taken place on Sunday July 28 She testified that it occurred sometime during the Spring (she could not recall which year) and that it could not have been a Sunday because she always works on Sundays (Hixon 419 Tr 37shy38 Apx __)
Defendantrsquos aunt Casie Church lives in the Mullins home and was called to testify by defendant She stated that she was sitting on the front porch of the house during the late evening and early morning hours of July 28 and 29
(continued)
6
-8shy
so (Richardson 418 Tr 63 Apx __) Each of them encouraged defendant by
ldquo[e]gging him onrdquo and by ldquo[d]aringrdquo and ldquo[i]ncitingrdquo him to do so (Richardson
418 Tr 64 Apx __)
Defendant took a can of gasoline from the garage of the Mullins home and
went to the back of the Doster home (Richardson 418 Tr 64-65 Apx __)
Richardson Cotton Flowers and Vanderlinden served as lookouts with
Richardson following defendant to the Doster home and the other three remaining
across the street (Richardson 418 Tr 64-65 Apx __) Upon reaching the back
of the Doster home defendant either pried open or broke a window and poured
gasoline inside the house and on the windowsill (Richardson 418 Tr 65 111shy
114 Apx __)7 He then started the fire by holding a lighter up to the windowsill
and blowing until it ignited (Richardson 418 Tr 113 Apx __) Once the fire
was lit defendant and Richardson ran back across the street to join the others
where they celebrated and congratulated defendant (Richardson 418 Tr 65-66
6(continued)
(Church 419 Tr 45 Apx __) She testified that there was no one near the garage of the Mullins home during this time (Church 419 Tr 45 Apx __) But she stated that she did see someone named Mike sometime between 10 pm and 3 am (Church 419 Tr 45-46 Apx __)
7 Richardsonrsquos testimony indicates that it may have been a mixture of oil and gasoline (Richardson 418 Tr 65 Apx __)
-9shy
114-115 Apx __) Richardson testified that defendant set the fire because of the
Dostersrsquo race (Richardson 418 Tr 82 Apx __)
The Dosters had not yet moved into the Ziegler property and therefore were
not home at the time of the fire They had spent Sunday July 28 painting the
Ziegler property and left sometime between 7 pm and 8 pm (Doster 417 Tr
129 167-168 Apx __) Reginald Doster discovered there had been a fire when
he along with his wife and ten-year-old daughter returned to the home between 7
am and 9 am the next morning by which time the fire had burned out (Doster
doctrine recognizes that a court cannot be asked by counsel to take a step in a case
and later be convicted of error because it has complied with such requestrdquo)
(citation and internal quotations omitted) ldquoThis doctrine is a branch of the
doctrine of waiver by which courts prevent a party from inducing an erroneous
ruling and later seeking to profit from the legal consequences by having the
verdict vacatedrdquo Barrow 118 F3d at 490-491
Some courts have held that the existence of invited error forecloses any
-20shy
review ndash even for plain error See eg United States v Baker 432 F3d 1189
1216 (11th Cir 2005) cert denied 547 US 1085 (2006) (ldquoIt is a cardinal rule of
appellate review that a party may not challenge as error a ruling or other trial
proceeding invited by that party Where invited error exists it precludes a
court from invoking the plain error rule and reversingrdquo) United States v Fulford
980 F2d 1110 1116 (7th Cir 1992) (ldquoIt is well-settled that where error is invited
not even plain error permits reversalrdquo) This Court however has recognized an
exception holding that ldquo[i]nvited error does not foreclose relief when the
interests of justice demand otherwiserdquo Barrow 118 F3d at 491 In this Circuit
the question ldquo[w]hether the circumstances of a particular case justify deviation
from the normal rule of waiver under this doctrine is left largely to the discretion
of the appellate courtrdquo Ibid Nevertheless ldquo[u]nder the invited error doctrine an
error introduced by the complaining party will cause reversal only in the most
exceptional situationrdquo United States v Tandon 111 F3d 482 489 (6th Cir
1997) (citation and internal quotations omitted)
C Any Error By The District Court In Permitting The Challenged Statements Was Invited Error And Therefore Should Not Be Reviewed By This Court
Here all of the challenged statements were elicited by defendantrsquos retained
trial counsel Br 15-24 This plainly constitutes invited error See United States
-21shy
v Parikh 858 F2d 688 695 (11th Cir 1988) (ldquoWe hold that the admission of out
of court statements by a government witness when responding to an inquiry by
defense counsel creates lsquoinvited errorrsquordquo) See also Baker 432 F3d at 1215-1216
(defendant ldquocannot now complain about the district courtrsquos errorrdquo where his
counsel ldquoinvited the errorrdquo by eliciting hearsay during cross-examination) United
States v Neal 78 F3d 901 904 (4th Cir 1996) (defendant ldquoinvited the errorrdquo and
it therefore ldquoprovides no basis for reversalrdquo where ldquo[a]t trial [defendant] did not
object to any of the statements he now challengesrdquo and ldquomost were elicited by his
own attorney from a government witness during cross-examinationrdquo) United
States v Reyes-Alvarado 963 F2d 1184 1187 (9th Cir 1992) cert denied 506
US 890 (1992) (finding invited error and refusing to reverse where ldquoappellantrsquos
counsel solicited the testimony which he now claims should have been excludedrdquo
and ldquodid not seek to strike this testimony at the time it was givenrdquo)9
As a threshold matter it bears noting that defendant fails to acknowledge
the existence of invited error and makes no argument as to why ldquothe interests of
justicerdquo Barrow 118 F3d at 491 require this Court to refrain from applying the
invited-error doctrine Accordingly defendant has waived any right to invoke the
9 This Court has reached a similar conclusion albeit in an unpublished decision See United States v Ali 38 Fed Appx 220 224 (6th Cir Mar 26 2002) (unpublished)
-22shy
interests-of-justice exception recognized by this Court See United States v
Samour 199 F3d 821 822 n1 (6th Cir 1999) (defendant ldquowaived his right to
argue the applicability of [favorable precedent] by failing to raise the issue on
appealrdquo)
Even if not waived however the interests of justice do not require this
Court to depart from the general rule that relief is foreclosed by invited error The
challenged statements were not the result of mere oversight or an isolated error by
defendantrsquos trial counsel Rather this appears to be a classic example of trial
strategy gone awry ndash not a situation in which failure to reverse contravenes the
interests of justice Indeed in this case the interests of justice weigh in favor of
invoking the invited-error doctrine as defendant presumably sought to benefit
from eliciting the challenged statements and thus should not now be heard to
argue their inadmissibility simply because his strategy failed See Reyes-
Alvarado 963 F2d at 1187 (ldquoFrom the transcript it appears that counsel thought
his pursuit of this line of questioning might benefit his client His tactics
backfired and his client was convicted A defendant cannot have it both
ways This was invited error and therefore not grounds for reversalrdquo)
Moreover the governmentrsquos trial counsel showed an abundance of caution
by specifically raising the issue and asking whether it should be discussed at
-23shy
sidebar10 This too weighs against a finding that the interests of justice require
reversal See Neal 78 F3d at 904 (ldquoAt one point the prosecutor even tried to
warn [defendantrsquos] attorney about pursuing a line of questioning relating to the
defendantrsquos prior conduct but [defendantrsquos] attorney persisted Under these
circumstances [defendant] cannot complain of error which he himself has
invitedrdquo) (citation and internal quotations omitted)
Simply put this case precisely illustrates both the purpose behind the
10 The following exchange occurred when defense counsel elicited statements from the witness regarding what Ricky Cotton told the government
[Defense Counsel] Just tell us what Ricky Cotton said and let me -shytell us what obviously is hearsay Irsquoll sit down Tell us what Ricky Cotton -shy
[Government Counsel] Your Honor should we have a sidebar on this
[The Court] What for
[Government Counsel] Irsquom not sure to figure out where we are
[Defense Counsel] This is where we are what Ricky Cotton said
[The Court] Are you objecting
[Government Counsel] If he doesnrsquot have any objection to the witness saying what Ricky Cotton said thatrsquos fine
[Defense Counsel] Letrsquos go Tell us what Ricky Cotton said
(418 Tr 173-174 Apx __)
-24shy
invited-error doctrine and the need to enforce it strictly Defendantrsquos appeal does
not challenge any action by the government Nor does he take issue with the
district courtrsquos instructions to the jury the sufficiency of the evidence to support
his conviction or the reasonableness of his sentence He also does not contend the
district court improperly ruled on any objection made by his trial counsel Rather
his arguments on appeal arise solely from the actions of his own retained trial
counsel Such claims must be rejected on their face as a contrary rule would
create perverse incentives for defendants to invite some small amount of error in
every trial so as to create grounds for appeal Accordingly this Court should
apply the invited-error doctrine and affirm the judgment below without reaching
the question whether plain error exists
II
THE DISTRICT COURT DID NOT COMMIT PLAIN ERROR IN FAILING TO SUA SPONTE PREVENT DEFENDANTrsquoS TRIAL COUNSEL FROM
ELICITING THE CHALLENGED TESTIMONY
As noted above in Section IA if this Court determines that the invited-
error doctrine does not apply it should review admission of the challenged
statements for plain error United States v Namey 364 F3d 843 846 (6th Cir
2004)
-25shy
A The Plain-Error Doctrine
ldquoThe plain error doctrine mandates reversal only in exceptional
circumstances and only where the error is so plain that the trial judge and
prosecutor were derelict in countenancing itrdquo United States v Gardiner 463 F3d
445 459 (6th Cir 2006) (quoting United States v Carroll 26 F3d 1380 1383
(6th Cir 1994)) It ldquois to be used sparingly only in exceptional circumstances
and solely to avoid a miscarriage of justicerdquo United States v Phillips 516 F3d
479 487 (6th Cir 2008) (quoting United States v Cox 957 F2d 264 267 (6th
Cir 1992))
ldquoTo show plain error a defendant must establish the following (1) error
(2) that is plain and (3) that affects substantial rights If these three conditions are
met an appellate court may then exercise its discretion to notice a forfeited error
but only if (4) the error seriously affects the fairness integrity or public reputation
of judicial proceedingsrdquo United States v Arnold 486 F3d 177 194 (6th Cir
2007) cert denied 128 S Ct 871 (2008) (citation and internal quotations
omitted) ldquoThe phrase lsquoaffects substantial rightsrsquo lsquomeans prejudicial It must have
affected the outcome of the district court proceedingsrsquordquo United States v
(ldquo[I]ssues adverted to in a perfunctory manner unaccompanied by some effort at
developed argumentation are deemed waivedrdquo) (quoting McPherson v Kelsey
125 F3d 989 995-996 (6th Cir 1997))
-27shy
C The Third And Fourth Prongs Of The Plain-Error Doctrine Are Not Satisfied In This Case Because Other Evidence Supporting Defendantrsquos Conviction Is Overwhelming
Even if the issue were fully briefed a finding of plain error would be
improper because defendant cannot satisfy the third or fourth prongs of the
inquiry The third prong of the plain-error inquiry ndash ie the requirement that the
error ldquoaffects substantial rightsrdquo Arnold 486 F3d at 194 by ldquoaffect[ing] the
outcome of the district court proceedingsrdquo Mooneyham 473 F3d at 288 ndash is not
satisfied where the evidence against the defendant is overwhelming See
Mooneyham 473 F3d at 288 United States v Hines 398 F3d 713 718-719 (6th
Cir) cert denied 545 US 1134 (2005)
Likewise the fourth prong of the inquiry ndash ie the requirement that the
error be said to have ldquoseriously affect[ed] the fairness integrity or public
reputation of judicial proceedingsrdquo Arnold 486 F3d at 194 ndash also is not met when
other evidence is ldquooverwhelmingrdquo and ldquoessentially uncontrovertedrdquo See United
States v Cotton 535 US 625 632-633 (2002) Johnson v United States 520
US 461 469-470 (1997) Hines 398 F3d at 718-719 Indeed as both the
Supreme Court and this Court have recognized with regard to the fourth prong of
the inquiry in some cases ldquoit would be the reversal of a conviction which
would have th[e] effectrdquo of ldquoseriously affect[ing] the fairness integrity or public
-28shy
reputation of judicial proceedingsrdquo Johnson 520 US at 470 (internal quotations
omitted) (emphasis added) see also United States v McGhee 119 F3d 422 424shy
425 (6th Cir 1997) This is so because ldquo[r]eversal for error regardless of its effect
on the judgment encourages litigants to abuse the judicial process and bestirs the
public to ridicule itrdquo Johnson 520 US at 470 (citation and internal quotations
omitted) see also McGhee 119 F3d at 424-425
In view of the foregoing courts often cite the presence of overwhelming
evidence as the basis for concluding that a defendant has failed to meet both the
third and fourth prongs of the plain-error inquiry See Hines 398 F3d at 718-719
United States v Dedhia 134 F3d 802 809 (6th Cir) cert denied 523 US 1145
(1998) see also United States v Birk 453 F3d 893 898 (7th Cir 2006) United
States v Taylor 284 F3d 95 102 (1st Cir) cert denied 536 US 933 (2002)
This Court should follow that approach here as there is overwhelming evidence ndash
separate and apart from the challenged statements ndash to support defendantrsquos
conviction Specifically as explained more fully below testimony at trial
established that defendant (1) spoke openly to others during the weeks leading up
to the fire regarding his desire to force the Dosters from the neighborhood (2) was
the one who set the fire (3) confided to a friend afterward that he both set the fire
and performed the lawn job with the intent to drive the Dosters away because of
-29shy
their race and (4) told conflicting stories to the FBI during the course of its
investigation one of which included an admission that he was at least indirectly
involved in setting the fire
1 Defendantrsquos Statements Prior To The Fire
Two witnesses offered detailed accounts of conversations they had with
defendant prior to the date of the fire During these conversations defendant
expressed his desire to drive the Dosters from their home
Guy Wurts testified that in mid-July 2002 Defendant said something to the
effect of ldquoI got to get rid of these niggers Irsquoll find something to do I donrsquot know
what I got to get these niggers out [of] the neighborhoodrdquo (Wurts 417 Tr 208shy
209 Apx __) Wurts testified that defendant looked in the Dostersrsquo direction
when he made these comments and said the word ldquoniggerrdquo loud enough for the
Dosters ndash who were working in their yard at the time ndash to hear it (Wurts 417 Tr
202-203 209-210 Apx __) Wurts further testified that defendant ldquoseemed
seriousrdquo when he made these statements (Wurts 417 Tr 259 Apx __)
Debbie Daniely recounted similar statements by defendant Specifically
defendant told Daniely more than once that he was very upset about the Dosters
moving into the neighborhood saying something to the effect of ldquoniggers are
moving inrdquo and ldquo[w]e have to do something about itrdquo (Daniely 418 Tr 22-25
-30shy
Apx __) Defendant later admitted to the FBI that he made such a statement to
ldquo[t]his Court has lsquoroutinely concluded that such claims are best brought by a
defendant in a post-conviction proceeding under 28 USC sect 2255 so that the
-37shy
parties can develop an adequate record on the issuersquordquo Martinez 430 F3d at 338
(quoting United States v Brown 332 F3d 363 368 (6th Cir 2003)) ldquoThere is
however lsquoa narrow exceptionrsquo to this rule lsquowhen the existing record is adequate to
assess properly the merits of the claimrsquordquo United States v Hynes 467 F3d 951
969 (6th Cir 2006) (quoting United States v Franklin 415 F3d 537 555-556
(6th Cir 2005)) See also United States v Winkle 477 F3d 407 421 (6th Cir
2007) (ldquoThis Court typically will not review a claim of ineffective assistance on
direct appeal except in rare cases where the error is apparent from the existing
recordrdquo) (quoting United States v Lopez-Medina 461 F3d 724 737 (6th Cir
2006))
No basis exists for departing from the general rule against addressing
ineffective-assistance claims on direct appeal As this Court has noted ldquo[t]he trial
process contains a myriad of complex decisions that for strategic reasons are
sound when made but may appear unsound with the benefit of hindsightrdquo United
States v Davis 306 F3d 398 422 (6th Cir 2002) cert denied 537 US 1208
(2003) (quoting United States v Fortson 194 F3d 730 736 (6th Cir 1999))
Moreover ldquo[j]udicial scrutiny of counselrsquos performance must be highly
deferentialrdquo and ldquoa court must indulge a strong presumption that counselrsquos
conduct falls within the wide range of reasonable professional assistancerdquo
-38shy
Strickland v Washington 466 US 668 689 (1984) Thus to establish ineffective
assistance ldquothe defendant must overcome the presumption that under the
circumstances the challenged action lsquomight be considered sound trial strategyrsquordquo
Ibid (quoting Michel v Louisiana 350 US 91 101 (1955))
Here the decision by defendantrsquos retained trial counsel to elicit the
challenged statements during cross-examination of a government witness
undeniably constitutes an element of trial strategy that cannot be analyzed at this
stage of the proceedings In particular because this is a direct appeal there is no
evidence in the record regarding defense counselrsquos trial strategy This Court
repeatedly has refused to review ineffective-assistance claims under such
circumstances See eg Lopez-Medina 461 F3d at 737 (ldquoAbsent evidence
specifically addressing counselrsquos performance we cannot determine whether his
actions reflected a reasoned trial strategyrdquo) United States v Sullivan 431 F3d
976 986 (6th Cir 2005) (ldquoWithout an explanation from trial counsel as to why he
failed to call the alibi witness we have no basis to determine whether this decision
was the result of inadequate representation or reasonable trial strategyrdquo) United
States v Allison 59 F3d 43 47 (6th Cir) cert denied 516 US 1002 (1995)
(ldquo[T]he sparse record before this court does not reveal whether the attorneyrsquos
actions could be considered sound trial strategyrdquo) United States v Snow 48 F3d
-39shy
198 199 (6th Cir 1995) (ldquoThe record before this court simply is insufficient to
show whether the alleged wrongful acts could be considered sound trial
strategyrdquo) Thus defendantrsquos ineffective-assistance claim must be examined ndash if
at all ndash in a separate collateral proceeding brought pursuant to Section 2255
C The Evidence That Is Available In The Record Does Not Support A Finding Of Ineffective Assistance Of Counsel
As stated above the governmentrsquos position is that the current record is not
sufficient to permit this Court to address defendantrsquos ineffective-assistance claim
in this direct appeal However if the Court disagrees ndash or desires in the interest of
judicial economy to address defendantrsquos claim on direct appeal ndash it should reject
the claim because defendant fails to satisfy the second prong of the ineffective-
assistance inquiry11
11 The government does not concede that the first prong of the Strickland inquiry is satisfied in this case Rather as noted above it is not possible to resolve the issue at this point because the record does not indicate precisely what defendantrsquos trial counsel was thinking what his strategy was or why he elected to pursue certain lines of questioning In the event that defendant elects to bring a collateral challenge pursuant to Section 2255 the government reserves the right to address the first prong of Strickland inquiry and to further develop its argument as to the second prong The governmentrsquos decision not to do so in this brief is based on the incomplete nature of the record with regard to the Strickland inquiry and should not be construed as a waiver or forfeiture of any arguments relating to defendantrsquos ineffective-assistance claim
-40shy
1 Standard For Establishing Ineffective Assistance Of Counsel
To prove ineffective assistance of counsel under Strickland a defendant
first ldquomust demonstrate that counselrsquos performance fell lsquobelow the objective
standard of reasonablenessrsquordquo Ivory v Jackson 509 F3d 284 294 (6th Cir 2007)
cert denied 128 S Ct 1897 (2008) (quoting Strickland 466 US at 688)) ldquoThe
defendant must then demonstrate that lsquothere is a reasonable probability that but
for counselrsquos unprofessional errors the result of the proceeding would have been
different A reasonable probability is a probability sufficient to undermine the
confidence in the outcomersquordquo Ibid (quoting Strickland 466 US at 694)
Significantly this Court ldquoneed not decide whether defense counsel
performed deficiently if disposing of an ineffective-assistance claim on the ground
of lack of sufficient prejudice would be easierrdquo Hynes 467 F3d at 970 See also
Ivory 509 F3d at 294 (ldquo[A] court need not determine whether counselrsquos
performance was deficient before examining the prejudice suffered by the
defendant as a result of the alleged deficiencies If it is easier to dispose of
an ineffectiveness claim on the ground of lack of sufficient prejudice which we
expect will often be so that course should be followedrdquo) (quoting Strickland 466
US at 697)
-41shy
2 Defendant Is Unable To Demonstrate Sufficient Prejudice And Therefore Cannot Satisfy The Second Prong Of The Inquiry
ldquoTo show prejudice [defendant] must demonstrate that lsquothere is a
reasonable probability that but for counselrsquos unprofessional errors the result of
the proceeding would have been differentrsquordquo Harrison v Motley 478 F3d 750
756 (6th Cir) cert denied 128 S Ct 444 (2007) (quoting Strickland 466 US at
694)) As set forth above in Section IIC the evidence of defendantrsquos guilt is
overwhelming and the result therefore would not have been different absent the
challenged statements This Court repeatedly has determined that the second
prong of the Strickland inquiry is not met under such circumstances See eg
Harrison 478 F3d at 757 (defendant ldquofailed to show that his attorneysrsquo alleged
conflict of interest resulted in prejudicerdquo where ldquothe evidence admitted against
[defendant] at trial was lsquooverwhelmingrsquordquo) Hicks v Collins 384 F3d 204 215
(6th Cir 2004) cert denied 545 US 1155 (2005) (holding that defendant cannot
satisfy the second prong of Strickland where ldquothere was overwhelming evidence of
[defendantrsquos] guiltrdquo) Campbell v United States 364 F3d 727 736 (6th Cir
2004) cert denied 543 US 1119 (2005) (ldquoGiven the overwhelming evidence
establishing [defendantrsquos] guilt we believe that he would not have been able to
show that but for his attorneyrsquos failure to object to the prosecutorrsquos alleged
-42shy
misconduct the result would have been differentrdquo)
Accordingly even if this Court determines that the record is sufficient for it
to address defendantrsquos ineffective-assistance claim on direct appeal it should
reject this claim based on his failure to satisfy the second prong of the Strickland
inquiry
CONCLUSION
For the foregoing reasons this Court should affirm the judgment below
Respectfully submitted
GRACE CHUNG BECKER Acting Assistant Attorney General Civil Rights Division
DIANA K FLYNN DIRK C PHILLIPS Attorneys US Department of Justice Civil Rights Divisions Appellate Section Ben Franklin Station PO Box 14403 Washington DC 20044-4403 (202) 305-4876
CERTIFICATE OF COMPLIANCE
Pursuant to Federal Rule of Appellate Procedure 32(a)(7)(B) I hereby
certify that this brief is proportionally spaced 14-point Times New Roman font
Per WordPerfect 12 software the brief contains 9022 words excluding those
parts exempted by Federal Rule of Appellate Procedure 32(a)(7)(B)(iii)
DIRK C PHILLIPS Attorney
DATED June 18 2008
CERTIFICATE OF SERVICE
I hereby certify that on June 18 2008 a copy of the foregoing PROOF
BRIEF FOR THE UNITED STATES AS PLAINTIFF-APPELLEE was served by
first class mail postage prepaid on counsel of record at the following address
Joan E Morgan 2057 Orchard Lake Road Sylvan Lake MI 48320
DIRK C PHILLIPS Attorney
APPELLEErsquoS DESIGNATION OF APPENDIX CONTENTS
APPELLEErsquoS DESIGNATION OF APPENDIX CONTENTS
Appellee United States of America designates the following items to be
Tr 56-58 Apx __)5 A group that included defendant Richardson Vanderlinden
Flowers and Cotton began making comments about ldquothe niggers next doorrdquo
(Richardson 418 Tr 58-59 Apx __) Richardson suggested burning a cross in
order to drive the Dosters away (Richardson 418 Tr 61 Apx __) Defendant
however went further suggesting they ldquo[t]orch the houserdquo and told the others to
come back later that night (Richardson 418 Tr 62-63 Apx __) Richardson
Vanderlinden Cotton and Flowers returned that evening and met defendant at the
Mullins home across the street from the Dosters (Richardson 418 Tr 63 Apx
__)6 They discussed ldquo[t]orchingrdquo the Doster home and all were in favor of doing
4(continued)
with Lee Vanderlinden at the Mullins home (Church 419 Tr 58-59 Apx __) Chuck Proctor worked with Lee Vanderlinden and often would hang around the Mullins home (Wurts 417 Tr 199-200 Apx __ Church 419 Tr 57-58 Apx __) Michael Richardson was a good friend of defendant who spent a lot of time at the Mullins home (Wurts 417 Tr 201 Apx __) Ricky Cotton lived nearby and also was a regular at the Mullins home (Wurts 417 Tr 200-201 Apx __) As noted above Richardson and Cotton both pled guilty in this case (R 92106 and 41207 plea hearings)
5 Ann Hixon was called by the defense and testified that this gathering could not have taken place on Sunday July 28 She testified that it occurred sometime during the Spring (she could not recall which year) and that it could not have been a Sunday because she always works on Sundays (Hixon 419 Tr 37shy38 Apx __)
Defendantrsquos aunt Casie Church lives in the Mullins home and was called to testify by defendant She stated that she was sitting on the front porch of the house during the late evening and early morning hours of July 28 and 29
(continued)
6
-8shy
so (Richardson 418 Tr 63 Apx __) Each of them encouraged defendant by
ldquo[e]gging him onrdquo and by ldquo[d]aringrdquo and ldquo[i]ncitingrdquo him to do so (Richardson
418 Tr 64 Apx __)
Defendant took a can of gasoline from the garage of the Mullins home and
went to the back of the Doster home (Richardson 418 Tr 64-65 Apx __)
Richardson Cotton Flowers and Vanderlinden served as lookouts with
Richardson following defendant to the Doster home and the other three remaining
across the street (Richardson 418 Tr 64-65 Apx __) Upon reaching the back
of the Doster home defendant either pried open or broke a window and poured
gasoline inside the house and on the windowsill (Richardson 418 Tr 65 111shy
114 Apx __)7 He then started the fire by holding a lighter up to the windowsill
and blowing until it ignited (Richardson 418 Tr 113 Apx __) Once the fire
was lit defendant and Richardson ran back across the street to join the others
where they celebrated and congratulated defendant (Richardson 418 Tr 65-66
6(continued)
(Church 419 Tr 45 Apx __) She testified that there was no one near the garage of the Mullins home during this time (Church 419 Tr 45 Apx __) But she stated that she did see someone named Mike sometime between 10 pm and 3 am (Church 419 Tr 45-46 Apx __)
7 Richardsonrsquos testimony indicates that it may have been a mixture of oil and gasoline (Richardson 418 Tr 65 Apx __)
-9shy
114-115 Apx __) Richardson testified that defendant set the fire because of the
Dostersrsquo race (Richardson 418 Tr 82 Apx __)
The Dosters had not yet moved into the Ziegler property and therefore were
not home at the time of the fire They had spent Sunday July 28 painting the
Ziegler property and left sometime between 7 pm and 8 pm (Doster 417 Tr
129 167-168 Apx __) Reginald Doster discovered there had been a fire when
he along with his wife and ten-year-old daughter returned to the home between 7
am and 9 am the next morning by which time the fire had burned out (Doster
doctrine recognizes that a court cannot be asked by counsel to take a step in a case
and later be convicted of error because it has complied with such requestrdquo)
(citation and internal quotations omitted) ldquoThis doctrine is a branch of the
doctrine of waiver by which courts prevent a party from inducing an erroneous
ruling and later seeking to profit from the legal consequences by having the
verdict vacatedrdquo Barrow 118 F3d at 490-491
Some courts have held that the existence of invited error forecloses any
-20shy
review ndash even for plain error See eg United States v Baker 432 F3d 1189
1216 (11th Cir 2005) cert denied 547 US 1085 (2006) (ldquoIt is a cardinal rule of
appellate review that a party may not challenge as error a ruling or other trial
proceeding invited by that party Where invited error exists it precludes a
court from invoking the plain error rule and reversingrdquo) United States v Fulford
980 F2d 1110 1116 (7th Cir 1992) (ldquoIt is well-settled that where error is invited
not even plain error permits reversalrdquo) This Court however has recognized an
exception holding that ldquo[i]nvited error does not foreclose relief when the
interests of justice demand otherwiserdquo Barrow 118 F3d at 491 In this Circuit
the question ldquo[w]hether the circumstances of a particular case justify deviation
from the normal rule of waiver under this doctrine is left largely to the discretion
of the appellate courtrdquo Ibid Nevertheless ldquo[u]nder the invited error doctrine an
error introduced by the complaining party will cause reversal only in the most
exceptional situationrdquo United States v Tandon 111 F3d 482 489 (6th Cir
1997) (citation and internal quotations omitted)
C Any Error By The District Court In Permitting The Challenged Statements Was Invited Error And Therefore Should Not Be Reviewed By This Court
Here all of the challenged statements were elicited by defendantrsquos retained
trial counsel Br 15-24 This plainly constitutes invited error See United States
-21shy
v Parikh 858 F2d 688 695 (11th Cir 1988) (ldquoWe hold that the admission of out
of court statements by a government witness when responding to an inquiry by
defense counsel creates lsquoinvited errorrsquordquo) See also Baker 432 F3d at 1215-1216
(defendant ldquocannot now complain about the district courtrsquos errorrdquo where his
counsel ldquoinvited the errorrdquo by eliciting hearsay during cross-examination) United
States v Neal 78 F3d 901 904 (4th Cir 1996) (defendant ldquoinvited the errorrdquo and
it therefore ldquoprovides no basis for reversalrdquo where ldquo[a]t trial [defendant] did not
object to any of the statements he now challengesrdquo and ldquomost were elicited by his
own attorney from a government witness during cross-examinationrdquo) United
States v Reyes-Alvarado 963 F2d 1184 1187 (9th Cir 1992) cert denied 506
US 890 (1992) (finding invited error and refusing to reverse where ldquoappellantrsquos
counsel solicited the testimony which he now claims should have been excludedrdquo
and ldquodid not seek to strike this testimony at the time it was givenrdquo)9
As a threshold matter it bears noting that defendant fails to acknowledge
the existence of invited error and makes no argument as to why ldquothe interests of
justicerdquo Barrow 118 F3d at 491 require this Court to refrain from applying the
invited-error doctrine Accordingly defendant has waived any right to invoke the
9 This Court has reached a similar conclusion albeit in an unpublished decision See United States v Ali 38 Fed Appx 220 224 (6th Cir Mar 26 2002) (unpublished)
-22shy
interests-of-justice exception recognized by this Court See United States v
Samour 199 F3d 821 822 n1 (6th Cir 1999) (defendant ldquowaived his right to
argue the applicability of [favorable precedent] by failing to raise the issue on
appealrdquo)
Even if not waived however the interests of justice do not require this
Court to depart from the general rule that relief is foreclosed by invited error The
challenged statements were not the result of mere oversight or an isolated error by
defendantrsquos trial counsel Rather this appears to be a classic example of trial
strategy gone awry ndash not a situation in which failure to reverse contravenes the
interests of justice Indeed in this case the interests of justice weigh in favor of
invoking the invited-error doctrine as defendant presumably sought to benefit
from eliciting the challenged statements and thus should not now be heard to
argue their inadmissibility simply because his strategy failed See Reyes-
Alvarado 963 F2d at 1187 (ldquoFrom the transcript it appears that counsel thought
his pursuit of this line of questioning might benefit his client His tactics
backfired and his client was convicted A defendant cannot have it both
ways This was invited error and therefore not grounds for reversalrdquo)
Moreover the governmentrsquos trial counsel showed an abundance of caution
by specifically raising the issue and asking whether it should be discussed at
-23shy
sidebar10 This too weighs against a finding that the interests of justice require
reversal See Neal 78 F3d at 904 (ldquoAt one point the prosecutor even tried to
warn [defendantrsquos] attorney about pursuing a line of questioning relating to the
defendantrsquos prior conduct but [defendantrsquos] attorney persisted Under these
circumstances [defendant] cannot complain of error which he himself has
invitedrdquo) (citation and internal quotations omitted)
Simply put this case precisely illustrates both the purpose behind the
10 The following exchange occurred when defense counsel elicited statements from the witness regarding what Ricky Cotton told the government
[Defense Counsel] Just tell us what Ricky Cotton said and let me -shytell us what obviously is hearsay Irsquoll sit down Tell us what Ricky Cotton -shy
[Government Counsel] Your Honor should we have a sidebar on this
[The Court] What for
[Government Counsel] Irsquom not sure to figure out where we are
[Defense Counsel] This is where we are what Ricky Cotton said
[The Court] Are you objecting
[Government Counsel] If he doesnrsquot have any objection to the witness saying what Ricky Cotton said thatrsquos fine
[Defense Counsel] Letrsquos go Tell us what Ricky Cotton said
(418 Tr 173-174 Apx __)
-24shy
invited-error doctrine and the need to enforce it strictly Defendantrsquos appeal does
not challenge any action by the government Nor does he take issue with the
district courtrsquos instructions to the jury the sufficiency of the evidence to support
his conviction or the reasonableness of his sentence He also does not contend the
district court improperly ruled on any objection made by his trial counsel Rather
his arguments on appeal arise solely from the actions of his own retained trial
counsel Such claims must be rejected on their face as a contrary rule would
create perverse incentives for defendants to invite some small amount of error in
every trial so as to create grounds for appeal Accordingly this Court should
apply the invited-error doctrine and affirm the judgment below without reaching
the question whether plain error exists
II
THE DISTRICT COURT DID NOT COMMIT PLAIN ERROR IN FAILING TO SUA SPONTE PREVENT DEFENDANTrsquoS TRIAL COUNSEL FROM
ELICITING THE CHALLENGED TESTIMONY
As noted above in Section IA if this Court determines that the invited-
error doctrine does not apply it should review admission of the challenged
statements for plain error United States v Namey 364 F3d 843 846 (6th Cir
2004)
-25shy
A The Plain-Error Doctrine
ldquoThe plain error doctrine mandates reversal only in exceptional
circumstances and only where the error is so plain that the trial judge and
prosecutor were derelict in countenancing itrdquo United States v Gardiner 463 F3d
445 459 (6th Cir 2006) (quoting United States v Carroll 26 F3d 1380 1383
(6th Cir 1994)) It ldquois to be used sparingly only in exceptional circumstances
and solely to avoid a miscarriage of justicerdquo United States v Phillips 516 F3d
479 487 (6th Cir 2008) (quoting United States v Cox 957 F2d 264 267 (6th
Cir 1992))
ldquoTo show plain error a defendant must establish the following (1) error
(2) that is plain and (3) that affects substantial rights If these three conditions are
met an appellate court may then exercise its discretion to notice a forfeited error
but only if (4) the error seriously affects the fairness integrity or public reputation
of judicial proceedingsrdquo United States v Arnold 486 F3d 177 194 (6th Cir
2007) cert denied 128 S Ct 871 (2008) (citation and internal quotations
omitted) ldquoThe phrase lsquoaffects substantial rightsrsquo lsquomeans prejudicial It must have
affected the outcome of the district court proceedingsrsquordquo United States v
(ldquo[I]ssues adverted to in a perfunctory manner unaccompanied by some effort at
developed argumentation are deemed waivedrdquo) (quoting McPherson v Kelsey
125 F3d 989 995-996 (6th Cir 1997))
-27shy
C The Third And Fourth Prongs Of The Plain-Error Doctrine Are Not Satisfied In This Case Because Other Evidence Supporting Defendantrsquos Conviction Is Overwhelming
Even if the issue were fully briefed a finding of plain error would be
improper because defendant cannot satisfy the third or fourth prongs of the
inquiry The third prong of the plain-error inquiry ndash ie the requirement that the
error ldquoaffects substantial rightsrdquo Arnold 486 F3d at 194 by ldquoaffect[ing] the
outcome of the district court proceedingsrdquo Mooneyham 473 F3d at 288 ndash is not
satisfied where the evidence against the defendant is overwhelming See
Mooneyham 473 F3d at 288 United States v Hines 398 F3d 713 718-719 (6th
Cir) cert denied 545 US 1134 (2005)
Likewise the fourth prong of the inquiry ndash ie the requirement that the
error be said to have ldquoseriously affect[ed] the fairness integrity or public
reputation of judicial proceedingsrdquo Arnold 486 F3d at 194 ndash also is not met when
other evidence is ldquooverwhelmingrdquo and ldquoessentially uncontrovertedrdquo See United
States v Cotton 535 US 625 632-633 (2002) Johnson v United States 520
US 461 469-470 (1997) Hines 398 F3d at 718-719 Indeed as both the
Supreme Court and this Court have recognized with regard to the fourth prong of
the inquiry in some cases ldquoit would be the reversal of a conviction which
would have th[e] effectrdquo of ldquoseriously affect[ing] the fairness integrity or public
-28shy
reputation of judicial proceedingsrdquo Johnson 520 US at 470 (internal quotations
omitted) (emphasis added) see also United States v McGhee 119 F3d 422 424shy
425 (6th Cir 1997) This is so because ldquo[r]eversal for error regardless of its effect
on the judgment encourages litigants to abuse the judicial process and bestirs the
public to ridicule itrdquo Johnson 520 US at 470 (citation and internal quotations
omitted) see also McGhee 119 F3d at 424-425
In view of the foregoing courts often cite the presence of overwhelming
evidence as the basis for concluding that a defendant has failed to meet both the
third and fourth prongs of the plain-error inquiry See Hines 398 F3d at 718-719
United States v Dedhia 134 F3d 802 809 (6th Cir) cert denied 523 US 1145
(1998) see also United States v Birk 453 F3d 893 898 (7th Cir 2006) United
States v Taylor 284 F3d 95 102 (1st Cir) cert denied 536 US 933 (2002)
This Court should follow that approach here as there is overwhelming evidence ndash
separate and apart from the challenged statements ndash to support defendantrsquos
conviction Specifically as explained more fully below testimony at trial
established that defendant (1) spoke openly to others during the weeks leading up
to the fire regarding his desire to force the Dosters from the neighborhood (2) was
the one who set the fire (3) confided to a friend afterward that he both set the fire
and performed the lawn job with the intent to drive the Dosters away because of
-29shy
their race and (4) told conflicting stories to the FBI during the course of its
investigation one of which included an admission that he was at least indirectly
involved in setting the fire
1 Defendantrsquos Statements Prior To The Fire
Two witnesses offered detailed accounts of conversations they had with
defendant prior to the date of the fire During these conversations defendant
expressed his desire to drive the Dosters from their home
Guy Wurts testified that in mid-July 2002 Defendant said something to the
effect of ldquoI got to get rid of these niggers Irsquoll find something to do I donrsquot know
what I got to get these niggers out [of] the neighborhoodrdquo (Wurts 417 Tr 208shy
209 Apx __) Wurts testified that defendant looked in the Dostersrsquo direction
when he made these comments and said the word ldquoniggerrdquo loud enough for the
Dosters ndash who were working in their yard at the time ndash to hear it (Wurts 417 Tr
202-203 209-210 Apx __) Wurts further testified that defendant ldquoseemed
seriousrdquo when he made these statements (Wurts 417 Tr 259 Apx __)
Debbie Daniely recounted similar statements by defendant Specifically
defendant told Daniely more than once that he was very upset about the Dosters
moving into the neighborhood saying something to the effect of ldquoniggers are
moving inrdquo and ldquo[w]e have to do something about itrdquo (Daniely 418 Tr 22-25
-30shy
Apx __) Defendant later admitted to the FBI that he made such a statement to
ldquo[t]his Court has lsquoroutinely concluded that such claims are best brought by a
defendant in a post-conviction proceeding under 28 USC sect 2255 so that the
-37shy
parties can develop an adequate record on the issuersquordquo Martinez 430 F3d at 338
(quoting United States v Brown 332 F3d 363 368 (6th Cir 2003)) ldquoThere is
however lsquoa narrow exceptionrsquo to this rule lsquowhen the existing record is adequate to
assess properly the merits of the claimrsquordquo United States v Hynes 467 F3d 951
969 (6th Cir 2006) (quoting United States v Franklin 415 F3d 537 555-556
(6th Cir 2005)) See also United States v Winkle 477 F3d 407 421 (6th Cir
2007) (ldquoThis Court typically will not review a claim of ineffective assistance on
direct appeal except in rare cases where the error is apparent from the existing
recordrdquo) (quoting United States v Lopez-Medina 461 F3d 724 737 (6th Cir
2006))
No basis exists for departing from the general rule against addressing
ineffective-assistance claims on direct appeal As this Court has noted ldquo[t]he trial
process contains a myriad of complex decisions that for strategic reasons are
sound when made but may appear unsound with the benefit of hindsightrdquo United
States v Davis 306 F3d 398 422 (6th Cir 2002) cert denied 537 US 1208
(2003) (quoting United States v Fortson 194 F3d 730 736 (6th Cir 1999))
Moreover ldquo[j]udicial scrutiny of counselrsquos performance must be highly
deferentialrdquo and ldquoa court must indulge a strong presumption that counselrsquos
conduct falls within the wide range of reasonable professional assistancerdquo
-38shy
Strickland v Washington 466 US 668 689 (1984) Thus to establish ineffective
assistance ldquothe defendant must overcome the presumption that under the
circumstances the challenged action lsquomight be considered sound trial strategyrsquordquo
Ibid (quoting Michel v Louisiana 350 US 91 101 (1955))
Here the decision by defendantrsquos retained trial counsel to elicit the
challenged statements during cross-examination of a government witness
undeniably constitutes an element of trial strategy that cannot be analyzed at this
stage of the proceedings In particular because this is a direct appeal there is no
evidence in the record regarding defense counselrsquos trial strategy This Court
repeatedly has refused to review ineffective-assistance claims under such
circumstances See eg Lopez-Medina 461 F3d at 737 (ldquoAbsent evidence
specifically addressing counselrsquos performance we cannot determine whether his
actions reflected a reasoned trial strategyrdquo) United States v Sullivan 431 F3d
976 986 (6th Cir 2005) (ldquoWithout an explanation from trial counsel as to why he
failed to call the alibi witness we have no basis to determine whether this decision
was the result of inadequate representation or reasonable trial strategyrdquo) United
States v Allison 59 F3d 43 47 (6th Cir) cert denied 516 US 1002 (1995)
(ldquo[T]he sparse record before this court does not reveal whether the attorneyrsquos
actions could be considered sound trial strategyrdquo) United States v Snow 48 F3d
-39shy
198 199 (6th Cir 1995) (ldquoThe record before this court simply is insufficient to
show whether the alleged wrongful acts could be considered sound trial
strategyrdquo) Thus defendantrsquos ineffective-assistance claim must be examined ndash if
at all ndash in a separate collateral proceeding brought pursuant to Section 2255
C The Evidence That Is Available In The Record Does Not Support A Finding Of Ineffective Assistance Of Counsel
As stated above the governmentrsquos position is that the current record is not
sufficient to permit this Court to address defendantrsquos ineffective-assistance claim
in this direct appeal However if the Court disagrees ndash or desires in the interest of
judicial economy to address defendantrsquos claim on direct appeal ndash it should reject
the claim because defendant fails to satisfy the second prong of the ineffective-
assistance inquiry11
11 The government does not concede that the first prong of the Strickland inquiry is satisfied in this case Rather as noted above it is not possible to resolve the issue at this point because the record does not indicate precisely what defendantrsquos trial counsel was thinking what his strategy was or why he elected to pursue certain lines of questioning In the event that defendant elects to bring a collateral challenge pursuant to Section 2255 the government reserves the right to address the first prong of Strickland inquiry and to further develop its argument as to the second prong The governmentrsquos decision not to do so in this brief is based on the incomplete nature of the record with regard to the Strickland inquiry and should not be construed as a waiver or forfeiture of any arguments relating to defendantrsquos ineffective-assistance claim
-40shy
1 Standard For Establishing Ineffective Assistance Of Counsel
To prove ineffective assistance of counsel under Strickland a defendant
first ldquomust demonstrate that counselrsquos performance fell lsquobelow the objective
standard of reasonablenessrsquordquo Ivory v Jackson 509 F3d 284 294 (6th Cir 2007)
cert denied 128 S Ct 1897 (2008) (quoting Strickland 466 US at 688)) ldquoThe
defendant must then demonstrate that lsquothere is a reasonable probability that but
for counselrsquos unprofessional errors the result of the proceeding would have been
different A reasonable probability is a probability sufficient to undermine the
confidence in the outcomersquordquo Ibid (quoting Strickland 466 US at 694)
Significantly this Court ldquoneed not decide whether defense counsel
performed deficiently if disposing of an ineffective-assistance claim on the ground
of lack of sufficient prejudice would be easierrdquo Hynes 467 F3d at 970 See also
Ivory 509 F3d at 294 (ldquo[A] court need not determine whether counselrsquos
performance was deficient before examining the prejudice suffered by the
defendant as a result of the alleged deficiencies If it is easier to dispose of
an ineffectiveness claim on the ground of lack of sufficient prejudice which we
expect will often be so that course should be followedrdquo) (quoting Strickland 466
US at 697)
-41shy
2 Defendant Is Unable To Demonstrate Sufficient Prejudice And Therefore Cannot Satisfy The Second Prong Of The Inquiry
ldquoTo show prejudice [defendant] must demonstrate that lsquothere is a
reasonable probability that but for counselrsquos unprofessional errors the result of
the proceeding would have been differentrsquordquo Harrison v Motley 478 F3d 750
756 (6th Cir) cert denied 128 S Ct 444 (2007) (quoting Strickland 466 US at
694)) As set forth above in Section IIC the evidence of defendantrsquos guilt is
overwhelming and the result therefore would not have been different absent the
challenged statements This Court repeatedly has determined that the second
prong of the Strickland inquiry is not met under such circumstances See eg
Harrison 478 F3d at 757 (defendant ldquofailed to show that his attorneysrsquo alleged
conflict of interest resulted in prejudicerdquo where ldquothe evidence admitted against
[defendant] at trial was lsquooverwhelmingrsquordquo) Hicks v Collins 384 F3d 204 215
(6th Cir 2004) cert denied 545 US 1155 (2005) (holding that defendant cannot
satisfy the second prong of Strickland where ldquothere was overwhelming evidence of
[defendantrsquos] guiltrdquo) Campbell v United States 364 F3d 727 736 (6th Cir
2004) cert denied 543 US 1119 (2005) (ldquoGiven the overwhelming evidence
establishing [defendantrsquos] guilt we believe that he would not have been able to
show that but for his attorneyrsquos failure to object to the prosecutorrsquos alleged
-42shy
misconduct the result would have been differentrdquo)
Accordingly even if this Court determines that the record is sufficient for it
to address defendantrsquos ineffective-assistance claim on direct appeal it should
reject this claim based on his failure to satisfy the second prong of the Strickland
inquiry
CONCLUSION
For the foregoing reasons this Court should affirm the judgment below
Respectfully submitted
GRACE CHUNG BECKER Acting Assistant Attorney General Civil Rights Division
DIANA K FLYNN DIRK C PHILLIPS Attorneys US Department of Justice Civil Rights Divisions Appellate Section Ben Franklin Station PO Box 14403 Washington DC 20044-4403 (202) 305-4876
CERTIFICATE OF COMPLIANCE
Pursuant to Federal Rule of Appellate Procedure 32(a)(7)(B) I hereby
certify that this brief is proportionally spaced 14-point Times New Roman font
Per WordPerfect 12 software the brief contains 9022 words excluding those
parts exempted by Federal Rule of Appellate Procedure 32(a)(7)(B)(iii)
DIRK C PHILLIPS Attorney
DATED June 18 2008
CERTIFICATE OF SERVICE
I hereby certify that on June 18 2008 a copy of the foregoing PROOF
BRIEF FOR THE UNITED STATES AS PLAINTIFF-APPELLEE was served by
first class mail postage prepaid on counsel of record at the following address
Joan E Morgan 2057 Orchard Lake Road Sylvan Lake MI 48320
DIRK C PHILLIPS Attorney
APPELLEErsquoS DESIGNATION OF APPENDIX CONTENTS
APPELLEErsquoS DESIGNATION OF APPENDIX CONTENTS
Appellee United States of America designates the following items to be
so (Richardson 418 Tr 63 Apx __) Each of them encouraged defendant by
ldquo[e]gging him onrdquo and by ldquo[d]aringrdquo and ldquo[i]ncitingrdquo him to do so (Richardson
418 Tr 64 Apx __)
Defendant took a can of gasoline from the garage of the Mullins home and
went to the back of the Doster home (Richardson 418 Tr 64-65 Apx __)
Richardson Cotton Flowers and Vanderlinden served as lookouts with
Richardson following defendant to the Doster home and the other three remaining
across the street (Richardson 418 Tr 64-65 Apx __) Upon reaching the back
of the Doster home defendant either pried open or broke a window and poured
gasoline inside the house and on the windowsill (Richardson 418 Tr 65 111shy
114 Apx __)7 He then started the fire by holding a lighter up to the windowsill
and blowing until it ignited (Richardson 418 Tr 113 Apx __) Once the fire
was lit defendant and Richardson ran back across the street to join the others
where they celebrated and congratulated defendant (Richardson 418 Tr 65-66
6(continued)
(Church 419 Tr 45 Apx __) She testified that there was no one near the garage of the Mullins home during this time (Church 419 Tr 45 Apx __) But she stated that she did see someone named Mike sometime between 10 pm and 3 am (Church 419 Tr 45-46 Apx __)
7 Richardsonrsquos testimony indicates that it may have been a mixture of oil and gasoline (Richardson 418 Tr 65 Apx __)
-9shy
114-115 Apx __) Richardson testified that defendant set the fire because of the
Dostersrsquo race (Richardson 418 Tr 82 Apx __)
The Dosters had not yet moved into the Ziegler property and therefore were
not home at the time of the fire They had spent Sunday July 28 painting the
Ziegler property and left sometime between 7 pm and 8 pm (Doster 417 Tr
129 167-168 Apx __) Reginald Doster discovered there had been a fire when
he along with his wife and ten-year-old daughter returned to the home between 7
am and 9 am the next morning by which time the fire had burned out (Doster
doctrine recognizes that a court cannot be asked by counsel to take a step in a case
and later be convicted of error because it has complied with such requestrdquo)
(citation and internal quotations omitted) ldquoThis doctrine is a branch of the
doctrine of waiver by which courts prevent a party from inducing an erroneous
ruling and later seeking to profit from the legal consequences by having the
verdict vacatedrdquo Barrow 118 F3d at 490-491
Some courts have held that the existence of invited error forecloses any
-20shy
review ndash even for plain error See eg United States v Baker 432 F3d 1189
1216 (11th Cir 2005) cert denied 547 US 1085 (2006) (ldquoIt is a cardinal rule of
appellate review that a party may not challenge as error a ruling or other trial
proceeding invited by that party Where invited error exists it precludes a
court from invoking the plain error rule and reversingrdquo) United States v Fulford
980 F2d 1110 1116 (7th Cir 1992) (ldquoIt is well-settled that where error is invited
not even plain error permits reversalrdquo) This Court however has recognized an
exception holding that ldquo[i]nvited error does not foreclose relief when the
interests of justice demand otherwiserdquo Barrow 118 F3d at 491 In this Circuit
the question ldquo[w]hether the circumstances of a particular case justify deviation
from the normal rule of waiver under this doctrine is left largely to the discretion
of the appellate courtrdquo Ibid Nevertheless ldquo[u]nder the invited error doctrine an
error introduced by the complaining party will cause reversal only in the most
exceptional situationrdquo United States v Tandon 111 F3d 482 489 (6th Cir
1997) (citation and internal quotations omitted)
C Any Error By The District Court In Permitting The Challenged Statements Was Invited Error And Therefore Should Not Be Reviewed By This Court
Here all of the challenged statements were elicited by defendantrsquos retained
trial counsel Br 15-24 This plainly constitutes invited error See United States
-21shy
v Parikh 858 F2d 688 695 (11th Cir 1988) (ldquoWe hold that the admission of out
of court statements by a government witness when responding to an inquiry by
defense counsel creates lsquoinvited errorrsquordquo) See also Baker 432 F3d at 1215-1216
(defendant ldquocannot now complain about the district courtrsquos errorrdquo where his
counsel ldquoinvited the errorrdquo by eliciting hearsay during cross-examination) United
States v Neal 78 F3d 901 904 (4th Cir 1996) (defendant ldquoinvited the errorrdquo and
it therefore ldquoprovides no basis for reversalrdquo where ldquo[a]t trial [defendant] did not
object to any of the statements he now challengesrdquo and ldquomost were elicited by his
own attorney from a government witness during cross-examinationrdquo) United
States v Reyes-Alvarado 963 F2d 1184 1187 (9th Cir 1992) cert denied 506
US 890 (1992) (finding invited error and refusing to reverse where ldquoappellantrsquos
counsel solicited the testimony which he now claims should have been excludedrdquo
and ldquodid not seek to strike this testimony at the time it was givenrdquo)9
As a threshold matter it bears noting that defendant fails to acknowledge
the existence of invited error and makes no argument as to why ldquothe interests of
justicerdquo Barrow 118 F3d at 491 require this Court to refrain from applying the
invited-error doctrine Accordingly defendant has waived any right to invoke the
9 This Court has reached a similar conclusion albeit in an unpublished decision See United States v Ali 38 Fed Appx 220 224 (6th Cir Mar 26 2002) (unpublished)
-22shy
interests-of-justice exception recognized by this Court See United States v
Samour 199 F3d 821 822 n1 (6th Cir 1999) (defendant ldquowaived his right to
argue the applicability of [favorable precedent] by failing to raise the issue on
appealrdquo)
Even if not waived however the interests of justice do not require this
Court to depart from the general rule that relief is foreclosed by invited error The
challenged statements were not the result of mere oversight or an isolated error by
defendantrsquos trial counsel Rather this appears to be a classic example of trial
strategy gone awry ndash not a situation in which failure to reverse contravenes the
interests of justice Indeed in this case the interests of justice weigh in favor of
invoking the invited-error doctrine as defendant presumably sought to benefit
from eliciting the challenged statements and thus should not now be heard to
argue their inadmissibility simply because his strategy failed See Reyes-
Alvarado 963 F2d at 1187 (ldquoFrom the transcript it appears that counsel thought
his pursuit of this line of questioning might benefit his client His tactics
backfired and his client was convicted A defendant cannot have it both
ways This was invited error and therefore not grounds for reversalrdquo)
Moreover the governmentrsquos trial counsel showed an abundance of caution
by specifically raising the issue and asking whether it should be discussed at
-23shy
sidebar10 This too weighs against a finding that the interests of justice require
reversal See Neal 78 F3d at 904 (ldquoAt one point the prosecutor even tried to
warn [defendantrsquos] attorney about pursuing a line of questioning relating to the
defendantrsquos prior conduct but [defendantrsquos] attorney persisted Under these
circumstances [defendant] cannot complain of error which he himself has
invitedrdquo) (citation and internal quotations omitted)
Simply put this case precisely illustrates both the purpose behind the
10 The following exchange occurred when defense counsel elicited statements from the witness regarding what Ricky Cotton told the government
[Defense Counsel] Just tell us what Ricky Cotton said and let me -shytell us what obviously is hearsay Irsquoll sit down Tell us what Ricky Cotton -shy
[Government Counsel] Your Honor should we have a sidebar on this
[The Court] What for
[Government Counsel] Irsquom not sure to figure out where we are
[Defense Counsel] This is where we are what Ricky Cotton said
[The Court] Are you objecting
[Government Counsel] If he doesnrsquot have any objection to the witness saying what Ricky Cotton said thatrsquos fine
[Defense Counsel] Letrsquos go Tell us what Ricky Cotton said
(418 Tr 173-174 Apx __)
-24shy
invited-error doctrine and the need to enforce it strictly Defendantrsquos appeal does
not challenge any action by the government Nor does he take issue with the
district courtrsquos instructions to the jury the sufficiency of the evidence to support
his conviction or the reasonableness of his sentence He also does not contend the
district court improperly ruled on any objection made by his trial counsel Rather
his arguments on appeal arise solely from the actions of his own retained trial
counsel Such claims must be rejected on their face as a contrary rule would
create perverse incentives for defendants to invite some small amount of error in
every trial so as to create grounds for appeal Accordingly this Court should
apply the invited-error doctrine and affirm the judgment below without reaching
the question whether plain error exists
II
THE DISTRICT COURT DID NOT COMMIT PLAIN ERROR IN FAILING TO SUA SPONTE PREVENT DEFENDANTrsquoS TRIAL COUNSEL FROM
ELICITING THE CHALLENGED TESTIMONY
As noted above in Section IA if this Court determines that the invited-
error doctrine does not apply it should review admission of the challenged
statements for plain error United States v Namey 364 F3d 843 846 (6th Cir
2004)
-25shy
A The Plain-Error Doctrine
ldquoThe plain error doctrine mandates reversal only in exceptional
circumstances and only where the error is so plain that the trial judge and
prosecutor were derelict in countenancing itrdquo United States v Gardiner 463 F3d
445 459 (6th Cir 2006) (quoting United States v Carroll 26 F3d 1380 1383
(6th Cir 1994)) It ldquois to be used sparingly only in exceptional circumstances
and solely to avoid a miscarriage of justicerdquo United States v Phillips 516 F3d
479 487 (6th Cir 2008) (quoting United States v Cox 957 F2d 264 267 (6th
Cir 1992))
ldquoTo show plain error a defendant must establish the following (1) error
(2) that is plain and (3) that affects substantial rights If these three conditions are
met an appellate court may then exercise its discretion to notice a forfeited error
but only if (4) the error seriously affects the fairness integrity or public reputation
of judicial proceedingsrdquo United States v Arnold 486 F3d 177 194 (6th Cir
2007) cert denied 128 S Ct 871 (2008) (citation and internal quotations
omitted) ldquoThe phrase lsquoaffects substantial rightsrsquo lsquomeans prejudicial It must have
affected the outcome of the district court proceedingsrsquordquo United States v
(ldquo[I]ssues adverted to in a perfunctory manner unaccompanied by some effort at
developed argumentation are deemed waivedrdquo) (quoting McPherson v Kelsey
125 F3d 989 995-996 (6th Cir 1997))
-27shy
C The Third And Fourth Prongs Of The Plain-Error Doctrine Are Not Satisfied In This Case Because Other Evidence Supporting Defendantrsquos Conviction Is Overwhelming
Even if the issue were fully briefed a finding of plain error would be
improper because defendant cannot satisfy the third or fourth prongs of the
inquiry The third prong of the plain-error inquiry ndash ie the requirement that the
error ldquoaffects substantial rightsrdquo Arnold 486 F3d at 194 by ldquoaffect[ing] the
outcome of the district court proceedingsrdquo Mooneyham 473 F3d at 288 ndash is not
satisfied where the evidence against the defendant is overwhelming See
Mooneyham 473 F3d at 288 United States v Hines 398 F3d 713 718-719 (6th
Cir) cert denied 545 US 1134 (2005)
Likewise the fourth prong of the inquiry ndash ie the requirement that the
error be said to have ldquoseriously affect[ed] the fairness integrity or public
reputation of judicial proceedingsrdquo Arnold 486 F3d at 194 ndash also is not met when
other evidence is ldquooverwhelmingrdquo and ldquoessentially uncontrovertedrdquo See United
States v Cotton 535 US 625 632-633 (2002) Johnson v United States 520
US 461 469-470 (1997) Hines 398 F3d at 718-719 Indeed as both the
Supreme Court and this Court have recognized with regard to the fourth prong of
the inquiry in some cases ldquoit would be the reversal of a conviction which
would have th[e] effectrdquo of ldquoseriously affect[ing] the fairness integrity or public
-28shy
reputation of judicial proceedingsrdquo Johnson 520 US at 470 (internal quotations
omitted) (emphasis added) see also United States v McGhee 119 F3d 422 424shy
425 (6th Cir 1997) This is so because ldquo[r]eversal for error regardless of its effect
on the judgment encourages litigants to abuse the judicial process and bestirs the
public to ridicule itrdquo Johnson 520 US at 470 (citation and internal quotations
omitted) see also McGhee 119 F3d at 424-425
In view of the foregoing courts often cite the presence of overwhelming
evidence as the basis for concluding that a defendant has failed to meet both the
third and fourth prongs of the plain-error inquiry See Hines 398 F3d at 718-719
United States v Dedhia 134 F3d 802 809 (6th Cir) cert denied 523 US 1145
(1998) see also United States v Birk 453 F3d 893 898 (7th Cir 2006) United
States v Taylor 284 F3d 95 102 (1st Cir) cert denied 536 US 933 (2002)
This Court should follow that approach here as there is overwhelming evidence ndash
separate and apart from the challenged statements ndash to support defendantrsquos
conviction Specifically as explained more fully below testimony at trial
established that defendant (1) spoke openly to others during the weeks leading up
to the fire regarding his desire to force the Dosters from the neighborhood (2) was
the one who set the fire (3) confided to a friend afterward that he both set the fire
and performed the lawn job with the intent to drive the Dosters away because of
-29shy
their race and (4) told conflicting stories to the FBI during the course of its
investigation one of which included an admission that he was at least indirectly
involved in setting the fire
1 Defendantrsquos Statements Prior To The Fire
Two witnesses offered detailed accounts of conversations they had with
defendant prior to the date of the fire During these conversations defendant
expressed his desire to drive the Dosters from their home
Guy Wurts testified that in mid-July 2002 Defendant said something to the
effect of ldquoI got to get rid of these niggers Irsquoll find something to do I donrsquot know
what I got to get these niggers out [of] the neighborhoodrdquo (Wurts 417 Tr 208shy
209 Apx __) Wurts testified that defendant looked in the Dostersrsquo direction
when he made these comments and said the word ldquoniggerrdquo loud enough for the
Dosters ndash who were working in their yard at the time ndash to hear it (Wurts 417 Tr
202-203 209-210 Apx __) Wurts further testified that defendant ldquoseemed
seriousrdquo when he made these statements (Wurts 417 Tr 259 Apx __)
Debbie Daniely recounted similar statements by defendant Specifically
defendant told Daniely more than once that he was very upset about the Dosters
moving into the neighborhood saying something to the effect of ldquoniggers are
moving inrdquo and ldquo[w]e have to do something about itrdquo (Daniely 418 Tr 22-25
-30shy
Apx __) Defendant later admitted to the FBI that he made such a statement to
ldquo[t]his Court has lsquoroutinely concluded that such claims are best brought by a
defendant in a post-conviction proceeding under 28 USC sect 2255 so that the
-37shy
parties can develop an adequate record on the issuersquordquo Martinez 430 F3d at 338
(quoting United States v Brown 332 F3d 363 368 (6th Cir 2003)) ldquoThere is
however lsquoa narrow exceptionrsquo to this rule lsquowhen the existing record is adequate to
assess properly the merits of the claimrsquordquo United States v Hynes 467 F3d 951
969 (6th Cir 2006) (quoting United States v Franklin 415 F3d 537 555-556
(6th Cir 2005)) See also United States v Winkle 477 F3d 407 421 (6th Cir
2007) (ldquoThis Court typically will not review a claim of ineffective assistance on
direct appeal except in rare cases where the error is apparent from the existing
recordrdquo) (quoting United States v Lopez-Medina 461 F3d 724 737 (6th Cir
2006))
No basis exists for departing from the general rule against addressing
ineffective-assistance claims on direct appeal As this Court has noted ldquo[t]he trial
process contains a myriad of complex decisions that for strategic reasons are
sound when made but may appear unsound with the benefit of hindsightrdquo United
States v Davis 306 F3d 398 422 (6th Cir 2002) cert denied 537 US 1208
(2003) (quoting United States v Fortson 194 F3d 730 736 (6th Cir 1999))
Moreover ldquo[j]udicial scrutiny of counselrsquos performance must be highly
deferentialrdquo and ldquoa court must indulge a strong presumption that counselrsquos
conduct falls within the wide range of reasonable professional assistancerdquo
-38shy
Strickland v Washington 466 US 668 689 (1984) Thus to establish ineffective
assistance ldquothe defendant must overcome the presumption that under the
circumstances the challenged action lsquomight be considered sound trial strategyrsquordquo
Ibid (quoting Michel v Louisiana 350 US 91 101 (1955))
Here the decision by defendantrsquos retained trial counsel to elicit the
challenged statements during cross-examination of a government witness
undeniably constitutes an element of trial strategy that cannot be analyzed at this
stage of the proceedings In particular because this is a direct appeal there is no
evidence in the record regarding defense counselrsquos trial strategy This Court
repeatedly has refused to review ineffective-assistance claims under such
circumstances See eg Lopez-Medina 461 F3d at 737 (ldquoAbsent evidence
specifically addressing counselrsquos performance we cannot determine whether his
actions reflected a reasoned trial strategyrdquo) United States v Sullivan 431 F3d
976 986 (6th Cir 2005) (ldquoWithout an explanation from trial counsel as to why he
failed to call the alibi witness we have no basis to determine whether this decision
was the result of inadequate representation or reasonable trial strategyrdquo) United
States v Allison 59 F3d 43 47 (6th Cir) cert denied 516 US 1002 (1995)
(ldquo[T]he sparse record before this court does not reveal whether the attorneyrsquos
actions could be considered sound trial strategyrdquo) United States v Snow 48 F3d
-39shy
198 199 (6th Cir 1995) (ldquoThe record before this court simply is insufficient to
show whether the alleged wrongful acts could be considered sound trial
strategyrdquo) Thus defendantrsquos ineffective-assistance claim must be examined ndash if
at all ndash in a separate collateral proceeding brought pursuant to Section 2255
C The Evidence That Is Available In The Record Does Not Support A Finding Of Ineffective Assistance Of Counsel
As stated above the governmentrsquos position is that the current record is not
sufficient to permit this Court to address defendantrsquos ineffective-assistance claim
in this direct appeal However if the Court disagrees ndash or desires in the interest of
judicial economy to address defendantrsquos claim on direct appeal ndash it should reject
the claim because defendant fails to satisfy the second prong of the ineffective-
assistance inquiry11
11 The government does not concede that the first prong of the Strickland inquiry is satisfied in this case Rather as noted above it is not possible to resolve the issue at this point because the record does not indicate precisely what defendantrsquos trial counsel was thinking what his strategy was or why he elected to pursue certain lines of questioning In the event that defendant elects to bring a collateral challenge pursuant to Section 2255 the government reserves the right to address the first prong of Strickland inquiry and to further develop its argument as to the second prong The governmentrsquos decision not to do so in this brief is based on the incomplete nature of the record with regard to the Strickland inquiry and should not be construed as a waiver or forfeiture of any arguments relating to defendantrsquos ineffective-assistance claim
-40shy
1 Standard For Establishing Ineffective Assistance Of Counsel
To prove ineffective assistance of counsel under Strickland a defendant
first ldquomust demonstrate that counselrsquos performance fell lsquobelow the objective
standard of reasonablenessrsquordquo Ivory v Jackson 509 F3d 284 294 (6th Cir 2007)
cert denied 128 S Ct 1897 (2008) (quoting Strickland 466 US at 688)) ldquoThe
defendant must then demonstrate that lsquothere is a reasonable probability that but
for counselrsquos unprofessional errors the result of the proceeding would have been
different A reasonable probability is a probability sufficient to undermine the
confidence in the outcomersquordquo Ibid (quoting Strickland 466 US at 694)
Significantly this Court ldquoneed not decide whether defense counsel
performed deficiently if disposing of an ineffective-assistance claim on the ground
of lack of sufficient prejudice would be easierrdquo Hynes 467 F3d at 970 See also
Ivory 509 F3d at 294 (ldquo[A] court need not determine whether counselrsquos
performance was deficient before examining the prejudice suffered by the
defendant as a result of the alleged deficiencies If it is easier to dispose of
an ineffectiveness claim on the ground of lack of sufficient prejudice which we
expect will often be so that course should be followedrdquo) (quoting Strickland 466
US at 697)
-41shy
2 Defendant Is Unable To Demonstrate Sufficient Prejudice And Therefore Cannot Satisfy The Second Prong Of The Inquiry
ldquoTo show prejudice [defendant] must demonstrate that lsquothere is a
reasonable probability that but for counselrsquos unprofessional errors the result of
the proceeding would have been differentrsquordquo Harrison v Motley 478 F3d 750
756 (6th Cir) cert denied 128 S Ct 444 (2007) (quoting Strickland 466 US at
694)) As set forth above in Section IIC the evidence of defendantrsquos guilt is
overwhelming and the result therefore would not have been different absent the
challenged statements This Court repeatedly has determined that the second
prong of the Strickland inquiry is not met under such circumstances See eg
Harrison 478 F3d at 757 (defendant ldquofailed to show that his attorneysrsquo alleged
conflict of interest resulted in prejudicerdquo where ldquothe evidence admitted against
[defendant] at trial was lsquooverwhelmingrsquordquo) Hicks v Collins 384 F3d 204 215
(6th Cir 2004) cert denied 545 US 1155 (2005) (holding that defendant cannot
satisfy the second prong of Strickland where ldquothere was overwhelming evidence of
[defendantrsquos] guiltrdquo) Campbell v United States 364 F3d 727 736 (6th Cir
2004) cert denied 543 US 1119 (2005) (ldquoGiven the overwhelming evidence
establishing [defendantrsquos] guilt we believe that he would not have been able to
show that but for his attorneyrsquos failure to object to the prosecutorrsquos alleged
-42shy
misconduct the result would have been differentrdquo)
Accordingly even if this Court determines that the record is sufficient for it
to address defendantrsquos ineffective-assistance claim on direct appeal it should
reject this claim based on his failure to satisfy the second prong of the Strickland
inquiry
CONCLUSION
For the foregoing reasons this Court should affirm the judgment below
Respectfully submitted
GRACE CHUNG BECKER Acting Assistant Attorney General Civil Rights Division
DIANA K FLYNN DIRK C PHILLIPS Attorneys US Department of Justice Civil Rights Divisions Appellate Section Ben Franklin Station PO Box 14403 Washington DC 20044-4403 (202) 305-4876
CERTIFICATE OF COMPLIANCE
Pursuant to Federal Rule of Appellate Procedure 32(a)(7)(B) I hereby
certify that this brief is proportionally spaced 14-point Times New Roman font
Per WordPerfect 12 software the brief contains 9022 words excluding those
parts exempted by Federal Rule of Appellate Procedure 32(a)(7)(B)(iii)
DIRK C PHILLIPS Attorney
DATED June 18 2008
CERTIFICATE OF SERVICE
I hereby certify that on June 18 2008 a copy of the foregoing PROOF
BRIEF FOR THE UNITED STATES AS PLAINTIFF-APPELLEE was served by
first class mail postage prepaid on counsel of record at the following address
Joan E Morgan 2057 Orchard Lake Road Sylvan Lake MI 48320
DIRK C PHILLIPS Attorney
APPELLEErsquoS DESIGNATION OF APPENDIX CONTENTS
APPELLEErsquoS DESIGNATION OF APPENDIX CONTENTS
Appellee United States of America designates the following items to be
doctrine recognizes that a court cannot be asked by counsel to take a step in a case
and later be convicted of error because it has complied with such requestrdquo)
(citation and internal quotations omitted) ldquoThis doctrine is a branch of the
doctrine of waiver by which courts prevent a party from inducing an erroneous
ruling and later seeking to profit from the legal consequences by having the
verdict vacatedrdquo Barrow 118 F3d at 490-491
Some courts have held that the existence of invited error forecloses any
-20shy
review ndash even for plain error See eg United States v Baker 432 F3d 1189
1216 (11th Cir 2005) cert denied 547 US 1085 (2006) (ldquoIt is a cardinal rule of
appellate review that a party may not challenge as error a ruling or other trial
proceeding invited by that party Where invited error exists it precludes a
court from invoking the plain error rule and reversingrdquo) United States v Fulford
980 F2d 1110 1116 (7th Cir 1992) (ldquoIt is well-settled that where error is invited
not even plain error permits reversalrdquo) This Court however has recognized an
exception holding that ldquo[i]nvited error does not foreclose relief when the
interests of justice demand otherwiserdquo Barrow 118 F3d at 491 In this Circuit
the question ldquo[w]hether the circumstances of a particular case justify deviation
from the normal rule of waiver under this doctrine is left largely to the discretion
of the appellate courtrdquo Ibid Nevertheless ldquo[u]nder the invited error doctrine an
error introduced by the complaining party will cause reversal only in the most
exceptional situationrdquo United States v Tandon 111 F3d 482 489 (6th Cir
1997) (citation and internal quotations omitted)
C Any Error By The District Court In Permitting The Challenged Statements Was Invited Error And Therefore Should Not Be Reviewed By This Court
Here all of the challenged statements were elicited by defendantrsquos retained
trial counsel Br 15-24 This plainly constitutes invited error See United States
-21shy
v Parikh 858 F2d 688 695 (11th Cir 1988) (ldquoWe hold that the admission of out
of court statements by a government witness when responding to an inquiry by
defense counsel creates lsquoinvited errorrsquordquo) See also Baker 432 F3d at 1215-1216
(defendant ldquocannot now complain about the district courtrsquos errorrdquo where his
counsel ldquoinvited the errorrdquo by eliciting hearsay during cross-examination) United
States v Neal 78 F3d 901 904 (4th Cir 1996) (defendant ldquoinvited the errorrdquo and
it therefore ldquoprovides no basis for reversalrdquo where ldquo[a]t trial [defendant] did not
object to any of the statements he now challengesrdquo and ldquomost were elicited by his
own attorney from a government witness during cross-examinationrdquo) United
States v Reyes-Alvarado 963 F2d 1184 1187 (9th Cir 1992) cert denied 506
US 890 (1992) (finding invited error and refusing to reverse where ldquoappellantrsquos
counsel solicited the testimony which he now claims should have been excludedrdquo
and ldquodid not seek to strike this testimony at the time it was givenrdquo)9
As a threshold matter it bears noting that defendant fails to acknowledge
the existence of invited error and makes no argument as to why ldquothe interests of
justicerdquo Barrow 118 F3d at 491 require this Court to refrain from applying the
invited-error doctrine Accordingly defendant has waived any right to invoke the
9 This Court has reached a similar conclusion albeit in an unpublished decision See United States v Ali 38 Fed Appx 220 224 (6th Cir Mar 26 2002) (unpublished)
-22shy
interests-of-justice exception recognized by this Court See United States v
Samour 199 F3d 821 822 n1 (6th Cir 1999) (defendant ldquowaived his right to
argue the applicability of [favorable precedent] by failing to raise the issue on
appealrdquo)
Even if not waived however the interests of justice do not require this
Court to depart from the general rule that relief is foreclosed by invited error The
challenged statements were not the result of mere oversight or an isolated error by
defendantrsquos trial counsel Rather this appears to be a classic example of trial
strategy gone awry ndash not a situation in which failure to reverse contravenes the
interests of justice Indeed in this case the interests of justice weigh in favor of
invoking the invited-error doctrine as defendant presumably sought to benefit
from eliciting the challenged statements and thus should not now be heard to
argue their inadmissibility simply because his strategy failed See Reyes-
Alvarado 963 F2d at 1187 (ldquoFrom the transcript it appears that counsel thought
his pursuit of this line of questioning might benefit his client His tactics
backfired and his client was convicted A defendant cannot have it both
ways This was invited error and therefore not grounds for reversalrdquo)
Moreover the governmentrsquos trial counsel showed an abundance of caution
by specifically raising the issue and asking whether it should be discussed at
-23shy
sidebar10 This too weighs against a finding that the interests of justice require
reversal See Neal 78 F3d at 904 (ldquoAt one point the prosecutor even tried to
warn [defendantrsquos] attorney about pursuing a line of questioning relating to the
defendantrsquos prior conduct but [defendantrsquos] attorney persisted Under these
circumstances [defendant] cannot complain of error which he himself has
invitedrdquo) (citation and internal quotations omitted)
Simply put this case precisely illustrates both the purpose behind the
10 The following exchange occurred when defense counsel elicited statements from the witness regarding what Ricky Cotton told the government
[Defense Counsel] Just tell us what Ricky Cotton said and let me -shytell us what obviously is hearsay Irsquoll sit down Tell us what Ricky Cotton -shy
[Government Counsel] Your Honor should we have a sidebar on this
[The Court] What for
[Government Counsel] Irsquom not sure to figure out where we are
[Defense Counsel] This is where we are what Ricky Cotton said
[The Court] Are you objecting
[Government Counsel] If he doesnrsquot have any objection to the witness saying what Ricky Cotton said thatrsquos fine
[Defense Counsel] Letrsquos go Tell us what Ricky Cotton said
(418 Tr 173-174 Apx __)
-24shy
invited-error doctrine and the need to enforce it strictly Defendantrsquos appeal does
not challenge any action by the government Nor does he take issue with the
district courtrsquos instructions to the jury the sufficiency of the evidence to support
his conviction or the reasonableness of his sentence He also does not contend the
district court improperly ruled on any objection made by his trial counsel Rather
his arguments on appeal arise solely from the actions of his own retained trial
counsel Such claims must be rejected on their face as a contrary rule would
create perverse incentives for defendants to invite some small amount of error in
every trial so as to create grounds for appeal Accordingly this Court should
apply the invited-error doctrine and affirm the judgment below without reaching
the question whether plain error exists
II
THE DISTRICT COURT DID NOT COMMIT PLAIN ERROR IN FAILING TO SUA SPONTE PREVENT DEFENDANTrsquoS TRIAL COUNSEL FROM
ELICITING THE CHALLENGED TESTIMONY
As noted above in Section IA if this Court determines that the invited-
error doctrine does not apply it should review admission of the challenged
statements for plain error United States v Namey 364 F3d 843 846 (6th Cir
2004)
-25shy
A The Plain-Error Doctrine
ldquoThe plain error doctrine mandates reversal only in exceptional
circumstances and only where the error is so plain that the trial judge and
prosecutor were derelict in countenancing itrdquo United States v Gardiner 463 F3d
445 459 (6th Cir 2006) (quoting United States v Carroll 26 F3d 1380 1383
(6th Cir 1994)) It ldquois to be used sparingly only in exceptional circumstances
and solely to avoid a miscarriage of justicerdquo United States v Phillips 516 F3d
479 487 (6th Cir 2008) (quoting United States v Cox 957 F2d 264 267 (6th
Cir 1992))
ldquoTo show plain error a defendant must establish the following (1) error
(2) that is plain and (3) that affects substantial rights If these three conditions are
met an appellate court may then exercise its discretion to notice a forfeited error
but only if (4) the error seriously affects the fairness integrity or public reputation
of judicial proceedingsrdquo United States v Arnold 486 F3d 177 194 (6th Cir
2007) cert denied 128 S Ct 871 (2008) (citation and internal quotations
omitted) ldquoThe phrase lsquoaffects substantial rightsrsquo lsquomeans prejudicial It must have
affected the outcome of the district court proceedingsrsquordquo United States v
(ldquo[I]ssues adverted to in a perfunctory manner unaccompanied by some effort at
developed argumentation are deemed waivedrdquo) (quoting McPherson v Kelsey
125 F3d 989 995-996 (6th Cir 1997))
-27shy
C The Third And Fourth Prongs Of The Plain-Error Doctrine Are Not Satisfied In This Case Because Other Evidence Supporting Defendantrsquos Conviction Is Overwhelming
Even if the issue were fully briefed a finding of plain error would be
improper because defendant cannot satisfy the third or fourth prongs of the
inquiry The third prong of the plain-error inquiry ndash ie the requirement that the
error ldquoaffects substantial rightsrdquo Arnold 486 F3d at 194 by ldquoaffect[ing] the
outcome of the district court proceedingsrdquo Mooneyham 473 F3d at 288 ndash is not
satisfied where the evidence against the defendant is overwhelming See
Mooneyham 473 F3d at 288 United States v Hines 398 F3d 713 718-719 (6th
Cir) cert denied 545 US 1134 (2005)
Likewise the fourth prong of the inquiry ndash ie the requirement that the
error be said to have ldquoseriously affect[ed] the fairness integrity or public
reputation of judicial proceedingsrdquo Arnold 486 F3d at 194 ndash also is not met when
other evidence is ldquooverwhelmingrdquo and ldquoessentially uncontrovertedrdquo See United
States v Cotton 535 US 625 632-633 (2002) Johnson v United States 520
US 461 469-470 (1997) Hines 398 F3d at 718-719 Indeed as both the
Supreme Court and this Court have recognized with regard to the fourth prong of
the inquiry in some cases ldquoit would be the reversal of a conviction which
would have th[e] effectrdquo of ldquoseriously affect[ing] the fairness integrity or public
-28shy
reputation of judicial proceedingsrdquo Johnson 520 US at 470 (internal quotations
omitted) (emphasis added) see also United States v McGhee 119 F3d 422 424shy
425 (6th Cir 1997) This is so because ldquo[r]eversal for error regardless of its effect
on the judgment encourages litigants to abuse the judicial process and bestirs the
public to ridicule itrdquo Johnson 520 US at 470 (citation and internal quotations
omitted) see also McGhee 119 F3d at 424-425
In view of the foregoing courts often cite the presence of overwhelming
evidence as the basis for concluding that a defendant has failed to meet both the
third and fourth prongs of the plain-error inquiry See Hines 398 F3d at 718-719
United States v Dedhia 134 F3d 802 809 (6th Cir) cert denied 523 US 1145
(1998) see also United States v Birk 453 F3d 893 898 (7th Cir 2006) United
States v Taylor 284 F3d 95 102 (1st Cir) cert denied 536 US 933 (2002)
This Court should follow that approach here as there is overwhelming evidence ndash
separate and apart from the challenged statements ndash to support defendantrsquos
conviction Specifically as explained more fully below testimony at trial
established that defendant (1) spoke openly to others during the weeks leading up
to the fire regarding his desire to force the Dosters from the neighborhood (2) was
the one who set the fire (3) confided to a friend afterward that he both set the fire
and performed the lawn job with the intent to drive the Dosters away because of
-29shy
their race and (4) told conflicting stories to the FBI during the course of its
investigation one of which included an admission that he was at least indirectly
involved in setting the fire
1 Defendantrsquos Statements Prior To The Fire
Two witnesses offered detailed accounts of conversations they had with
defendant prior to the date of the fire During these conversations defendant
expressed his desire to drive the Dosters from their home
Guy Wurts testified that in mid-July 2002 Defendant said something to the
effect of ldquoI got to get rid of these niggers Irsquoll find something to do I donrsquot know
what I got to get these niggers out [of] the neighborhoodrdquo (Wurts 417 Tr 208shy
209 Apx __) Wurts testified that defendant looked in the Dostersrsquo direction
when he made these comments and said the word ldquoniggerrdquo loud enough for the
Dosters ndash who were working in their yard at the time ndash to hear it (Wurts 417 Tr
202-203 209-210 Apx __) Wurts further testified that defendant ldquoseemed
seriousrdquo when he made these statements (Wurts 417 Tr 259 Apx __)
Debbie Daniely recounted similar statements by defendant Specifically
defendant told Daniely more than once that he was very upset about the Dosters
moving into the neighborhood saying something to the effect of ldquoniggers are
moving inrdquo and ldquo[w]e have to do something about itrdquo (Daniely 418 Tr 22-25
-30shy
Apx __) Defendant later admitted to the FBI that he made such a statement to
ldquo[t]his Court has lsquoroutinely concluded that such claims are best brought by a
defendant in a post-conviction proceeding under 28 USC sect 2255 so that the
-37shy
parties can develop an adequate record on the issuersquordquo Martinez 430 F3d at 338
(quoting United States v Brown 332 F3d 363 368 (6th Cir 2003)) ldquoThere is
however lsquoa narrow exceptionrsquo to this rule lsquowhen the existing record is adequate to
assess properly the merits of the claimrsquordquo United States v Hynes 467 F3d 951
969 (6th Cir 2006) (quoting United States v Franklin 415 F3d 537 555-556
(6th Cir 2005)) See also United States v Winkle 477 F3d 407 421 (6th Cir
2007) (ldquoThis Court typically will not review a claim of ineffective assistance on
direct appeal except in rare cases where the error is apparent from the existing
recordrdquo) (quoting United States v Lopez-Medina 461 F3d 724 737 (6th Cir
2006))
No basis exists for departing from the general rule against addressing
ineffective-assistance claims on direct appeal As this Court has noted ldquo[t]he trial
process contains a myriad of complex decisions that for strategic reasons are
sound when made but may appear unsound with the benefit of hindsightrdquo United
States v Davis 306 F3d 398 422 (6th Cir 2002) cert denied 537 US 1208
(2003) (quoting United States v Fortson 194 F3d 730 736 (6th Cir 1999))
Moreover ldquo[j]udicial scrutiny of counselrsquos performance must be highly
deferentialrdquo and ldquoa court must indulge a strong presumption that counselrsquos
conduct falls within the wide range of reasonable professional assistancerdquo
-38shy
Strickland v Washington 466 US 668 689 (1984) Thus to establish ineffective
assistance ldquothe defendant must overcome the presumption that under the
circumstances the challenged action lsquomight be considered sound trial strategyrsquordquo
Ibid (quoting Michel v Louisiana 350 US 91 101 (1955))
Here the decision by defendantrsquos retained trial counsel to elicit the
challenged statements during cross-examination of a government witness
undeniably constitutes an element of trial strategy that cannot be analyzed at this
stage of the proceedings In particular because this is a direct appeal there is no
evidence in the record regarding defense counselrsquos trial strategy This Court
repeatedly has refused to review ineffective-assistance claims under such
circumstances See eg Lopez-Medina 461 F3d at 737 (ldquoAbsent evidence
specifically addressing counselrsquos performance we cannot determine whether his
actions reflected a reasoned trial strategyrdquo) United States v Sullivan 431 F3d
976 986 (6th Cir 2005) (ldquoWithout an explanation from trial counsel as to why he
failed to call the alibi witness we have no basis to determine whether this decision
was the result of inadequate representation or reasonable trial strategyrdquo) United
States v Allison 59 F3d 43 47 (6th Cir) cert denied 516 US 1002 (1995)
(ldquo[T]he sparse record before this court does not reveal whether the attorneyrsquos
actions could be considered sound trial strategyrdquo) United States v Snow 48 F3d
-39shy
198 199 (6th Cir 1995) (ldquoThe record before this court simply is insufficient to
show whether the alleged wrongful acts could be considered sound trial
strategyrdquo) Thus defendantrsquos ineffective-assistance claim must be examined ndash if
at all ndash in a separate collateral proceeding brought pursuant to Section 2255
C The Evidence That Is Available In The Record Does Not Support A Finding Of Ineffective Assistance Of Counsel
As stated above the governmentrsquos position is that the current record is not
sufficient to permit this Court to address defendantrsquos ineffective-assistance claim
in this direct appeal However if the Court disagrees ndash or desires in the interest of
judicial economy to address defendantrsquos claim on direct appeal ndash it should reject
the claim because defendant fails to satisfy the second prong of the ineffective-
assistance inquiry11
11 The government does not concede that the first prong of the Strickland inquiry is satisfied in this case Rather as noted above it is not possible to resolve the issue at this point because the record does not indicate precisely what defendantrsquos trial counsel was thinking what his strategy was or why he elected to pursue certain lines of questioning In the event that defendant elects to bring a collateral challenge pursuant to Section 2255 the government reserves the right to address the first prong of Strickland inquiry and to further develop its argument as to the second prong The governmentrsquos decision not to do so in this brief is based on the incomplete nature of the record with regard to the Strickland inquiry and should not be construed as a waiver or forfeiture of any arguments relating to defendantrsquos ineffective-assistance claim
-40shy
1 Standard For Establishing Ineffective Assistance Of Counsel
To prove ineffective assistance of counsel under Strickland a defendant
first ldquomust demonstrate that counselrsquos performance fell lsquobelow the objective
standard of reasonablenessrsquordquo Ivory v Jackson 509 F3d 284 294 (6th Cir 2007)
cert denied 128 S Ct 1897 (2008) (quoting Strickland 466 US at 688)) ldquoThe
defendant must then demonstrate that lsquothere is a reasonable probability that but
for counselrsquos unprofessional errors the result of the proceeding would have been
different A reasonable probability is a probability sufficient to undermine the
confidence in the outcomersquordquo Ibid (quoting Strickland 466 US at 694)
Significantly this Court ldquoneed not decide whether defense counsel
performed deficiently if disposing of an ineffective-assistance claim on the ground
of lack of sufficient prejudice would be easierrdquo Hynes 467 F3d at 970 See also
Ivory 509 F3d at 294 (ldquo[A] court need not determine whether counselrsquos
performance was deficient before examining the prejudice suffered by the
defendant as a result of the alleged deficiencies If it is easier to dispose of
an ineffectiveness claim on the ground of lack of sufficient prejudice which we
expect will often be so that course should be followedrdquo) (quoting Strickland 466
US at 697)
-41shy
2 Defendant Is Unable To Demonstrate Sufficient Prejudice And Therefore Cannot Satisfy The Second Prong Of The Inquiry
ldquoTo show prejudice [defendant] must demonstrate that lsquothere is a
reasonable probability that but for counselrsquos unprofessional errors the result of
the proceeding would have been differentrsquordquo Harrison v Motley 478 F3d 750
756 (6th Cir) cert denied 128 S Ct 444 (2007) (quoting Strickland 466 US at
694)) As set forth above in Section IIC the evidence of defendantrsquos guilt is
overwhelming and the result therefore would not have been different absent the
challenged statements This Court repeatedly has determined that the second
prong of the Strickland inquiry is not met under such circumstances See eg
Harrison 478 F3d at 757 (defendant ldquofailed to show that his attorneysrsquo alleged
conflict of interest resulted in prejudicerdquo where ldquothe evidence admitted against
[defendant] at trial was lsquooverwhelmingrsquordquo) Hicks v Collins 384 F3d 204 215
(6th Cir 2004) cert denied 545 US 1155 (2005) (holding that defendant cannot
satisfy the second prong of Strickland where ldquothere was overwhelming evidence of
[defendantrsquos] guiltrdquo) Campbell v United States 364 F3d 727 736 (6th Cir
2004) cert denied 543 US 1119 (2005) (ldquoGiven the overwhelming evidence
establishing [defendantrsquos] guilt we believe that he would not have been able to
show that but for his attorneyrsquos failure to object to the prosecutorrsquos alleged
-42shy
misconduct the result would have been differentrdquo)
Accordingly even if this Court determines that the record is sufficient for it
to address defendantrsquos ineffective-assistance claim on direct appeal it should
reject this claim based on his failure to satisfy the second prong of the Strickland
inquiry
CONCLUSION
For the foregoing reasons this Court should affirm the judgment below
Respectfully submitted
GRACE CHUNG BECKER Acting Assistant Attorney General Civil Rights Division
DIANA K FLYNN DIRK C PHILLIPS Attorneys US Department of Justice Civil Rights Divisions Appellate Section Ben Franklin Station PO Box 14403 Washington DC 20044-4403 (202) 305-4876
CERTIFICATE OF COMPLIANCE
Pursuant to Federal Rule of Appellate Procedure 32(a)(7)(B) I hereby
certify that this brief is proportionally spaced 14-point Times New Roman font
Per WordPerfect 12 software the brief contains 9022 words excluding those
parts exempted by Federal Rule of Appellate Procedure 32(a)(7)(B)(iii)
DIRK C PHILLIPS Attorney
DATED June 18 2008
CERTIFICATE OF SERVICE
I hereby certify that on June 18 2008 a copy of the foregoing PROOF
BRIEF FOR THE UNITED STATES AS PLAINTIFF-APPELLEE was served by
first class mail postage prepaid on counsel of record at the following address
Joan E Morgan 2057 Orchard Lake Road Sylvan Lake MI 48320
DIRK C PHILLIPS Attorney
APPELLEErsquoS DESIGNATION OF APPENDIX CONTENTS
APPELLEErsquoS DESIGNATION OF APPENDIX CONTENTS
Appellee United States of America designates the following items to be
doctrine recognizes that a court cannot be asked by counsel to take a step in a case
and later be convicted of error because it has complied with such requestrdquo)
(citation and internal quotations omitted) ldquoThis doctrine is a branch of the
doctrine of waiver by which courts prevent a party from inducing an erroneous
ruling and later seeking to profit from the legal consequences by having the
verdict vacatedrdquo Barrow 118 F3d at 490-491
Some courts have held that the existence of invited error forecloses any
-20shy
review ndash even for plain error See eg United States v Baker 432 F3d 1189
1216 (11th Cir 2005) cert denied 547 US 1085 (2006) (ldquoIt is a cardinal rule of
appellate review that a party may not challenge as error a ruling or other trial
proceeding invited by that party Where invited error exists it precludes a
court from invoking the plain error rule and reversingrdquo) United States v Fulford
980 F2d 1110 1116 (7th Cir 1992) (ldquoIt is well-settled that where error is invited
not even plain error permits reversalrdquo) This Court however has recognized an
exception holding that ldquo[i]nvited error does not foreclose relief when the
interests of justice demand otherwiserdquo Barrow 118 F3d at 491 In this Circuit
the question ldquo[w]hether the circumstances of a particular case justify deviation
from the normal rule of waiver under this doctrine is left largely to the discretion
of the appellate courtrdquo Ibid Nevertheless ldquo[u]nder the invited error doctrine an
error introduced by the complaining party will cause reversal only in the most
exceptional situationrdquo United States v Tandon 111 F3d 482 489 (6th Cir
1997) (citation and internal quotations omitted)
C Any Error By The District Court In Permitting The Challenged Statements Was Invited Error And Therefore Should Not Be Reviewed By This Court
Here all of the challenged statements were elicited by defendantrsquos retained
trial counsel Br 15-24 This plainly constitutes invited error See United States
-21shy
v Parikh 858 F2d 688 695 (11th Cir 1988) (ldquoWe hold that the admission of out
of court statements by a government witness when responding to an inquiry by
defense counsel creates lsquoinvited errorrsquordquo) See also Baker 432 F3d at 1215-1216
(defendant ldquocannot now complain about the district courtrsquos errorrdquo where his
counsel ldquoinvited the errorrdquo by eliciting hearsay during cross-examination) United
States v Neal 78 F3d 901 904 (4th Cir 1996) (defendant ldquoinvited the errorrdquo and
it therefore ldquoprovides no basis for reversalrdquo where ldquo[a]t trial [defendant] did not
object to any of the statements he now challengesrdquo and ldquomost were elicited by his
own attorney from a government witness during cross-examinationrdquo) United
States v Reyes-Alvarado 963 F2d 1184 1187 (9th Cir 1992) cert denied 506
US 890 (1992) (finding invited error and refusing to reverse where ldquoappellantrsquos
counsel solicited the testimony which he now claims should have been excludedrdquo
and ldquodid not seek to strike this testimony at the time it was givenrdquo)9
As a threshold matter it bears noting that defendant fails to acknowledge
the existence of invited error and makes no argument as to why ldquothe interests of
justicerdquo Barrow 118 F3d at 491 require this Court to refrain from applying the
invited-error doctrine Accordingly defendant has waived any right to invoke the
9 This Court has reached a similar conclusion albeit in an unpublished decision See United States v Ali 38 Fed Appx 220 224 (6th Cir Mar 26 2002) (unpublished)
-22shy
interests-of-justice exception recognized by this Court See United States v
Samour 199 F3d 821 822 n1 (6th Cir 1999) (defendant ldquowaived his right to
argue the applicability of [favorable precedent] by failing to raise the issue on
appealrdquo)
Even if not waived however the interests of justice do not require this
Court to depart from the general rule that relief is foreclosed by invited error The
challenged statements were not the result of mere oversight or an isolated error by
defendantrsquos trial counsel Rather this appears to be a classic example of trial
strategy gone awry ndash not a situation in which failure to reverse contravenes the
interests of justice Indeed in this case the interests of justice weigh in favor of
invoking the invited-error doctrine as defendant presumably sought to benefit
from eliciting the challenged statements and thus should not now be heard to
argue their inadmissibility simply because his strategy failed See Reyes-
Alvarado 963 F2d at 1187 (ldquoFrom the transcript it appears that counsel thought
his pursuit of this line of questioning might benefit his client His tactics
backfired and his client was convicted A defendant cannot have it both
ways This was invited error and therefore not grounds for reversalrdquo)
Moreover the governmentrsquos trial counsel showed an abundance of caution
by specifically raising the issue and asking whether it should be discussed at
-23shy
sidebar10 This too weighs against a finding that the interests of justice require
reversal See Neal 78 F3d at 904 (ldquoAt one point the prosecutor even tried to
warn [defendantrsquos] attorney about pursuing a line of questioning relating to the
defendantrsquos prior conduct but [defendantrsquos] attorney persisted Under these
circumstances [defendant] cannot complain of error which he himself has
invitedrdquo) (citation and internal quotations omitted)
Simply put this case precisely illustrates both the purpose behind the
10 The following exchange occurred when defense counsel elicited statements from the witness regarding what Ricky Cotton told the government
[Defense Counsel] Just tell us what Ricky Cotton said and let me -shytell us what obviously is hearsay Irsquoll sit down Tell us what Ricky Cotton -shy
[Government Counsel] Your Honor should we have a sidebar on this
[The Court] What for
[Government Counsel] Irsquom not sure to figure out where we are
[Defense Counsel] This is where we are what Ricky Cotton said
[The Court] Are you objecting
[Government Counsel] If he doesnrsquot have any objection to the witness saying what Ricky Cotton said thatrsquos fine
[Defense Counsel] Letrsquos go Tell us what Ricky Cotton said
(418 Tr 173-174 Apx __)
-24shy
invited-error doctrine and the need to enforce it strictly Defendantrsquos appeal does
not challenge any action by the government Nor does he take issue with the
district courtrsquos instructions to the jury the sufficiency of the evidence to support
his conviction or the reasonableness of his sentence He also does not contend the
district court improperly ruled on any objection made by his trial counsel Rather
his arguments on appeal arise solely from the actions of his own retained trial
counsel Such claims must be rejected on their face as a contrary rule would
create perverse incentives for defendants to invite some small amount of error in
every trial so as to create grounds for appeal Accordingly this Court should
apply the invited-error doctrine and affirm the judgment below without reaching
the question whether plain error exists
II
THE DISTRICT COURT DID NOT COMMIT PLAIN ERROR IN FAILING TO SUA SPONTE PREVENT DEFENDANTrsquoS TRIAL COUNSEL FROM
ELICITING THE CHALLENGED TESTIMONY
As noted above in Section IA if this Court determines that the invited-
error doctrine does not apply it should review admission of the challenged
statements for plain error United States v Namey 364 F3d 843 846 (6th Cir
2004)
-25shy
A The Plain-Error Doctrine
ldquoThe plain error doctrine mandates reversal only in exceptional
circumstances and only where the error is so plain that the trial judge and
prosecutor were derelict in countenancing itrdquo United States v Gardiner 463 F3d
445 459 (6th Cir 2006) (quoting United States v Carroll 26 F3d 1380 1383
(6th Cir 1994)) It ldquois to be used sparingly only in exceptional circumstances
and solely to avoid a miscarriage of justicerdquo United States v Phillips 516 F3d
479 487 (6th Cir 2008) (quoting United States v Cox 957 F2d 264 267 (6th
Cir 1992))
ldquoTo show plain error a defendant must establish the following (1) error
(2) that is plain and (3) that affects substantial rights If these three conditions are
met an appellate court may then exercise its discretion to notice a forfeited error
but only if (4) the error seriously affects the fairness integrity or public reputation
of judicial proceedingsrdquo United States v Arnold 486 F3d 177 194 (6th Cir
2007) cert denied 128 S Ct 871 (2008) (citation and internal quotations
omitted) ldquoThe phrase lsquoaffects substantial rightsrsquo lsquomeans prejudicial It must have
affected the outcome of the district court proceedingsrsquordquo United States v
(ldquo[I]ssues adverted to in a perfunctory manner unaccompanied by some effort at
developed argumentation are deemed waivedrdquo) (quoting McPherson v Kelsey
125 F3d 989 995-996 (6th Cir 1997))
-27shy
C The Third And Fourth Prongs Of The Plain-Error Doctrine Are Not Satisfied In This Case Because Other Evidence Supporting Defendantrsquos Conviction Is Overwhelming
Even if the issue were fully briefed a finding of plain error would be
improper because defendant cannot satisfy the third or fourth prongs of the
inquiry The third prong of the plain-error inquiry ndash ie the requirement that the
error ldquoaffects substantial rightsrdquo Arnold 486 F3d at 194 by ldquoaffect[ing] the
outcome of the district court proceedingsrdquo Mooneyham 473 F3d at 288 ndash is not
satisfied where the evidence against the defendant is overwhelming See
Mooneyham 473 F3d at 288 United States v Hines 398 F3d 713 718-719 (6th
Cir) cert denied 545 US 1134 (2005)
Likewise the fourth prong of the inquiry ndash ie the requirement that the
error be said to have ldquoseriously affect[ed] the fairness integrity or public
reputation of judicial proceedingsrdquo Arnold 486 F3d at 194 ndash also is not met when
other evidence is ldquooverwhelmingrdquo and ldquoessentially uncontrovertedrdquo See United
States v Cotton 535 US 625 632-633 (2002) Johnson v United States 520
US 461 469-470 (1997) Hines 398 F3d at 718-719 Indeed as both the
Supreme Court and this Court have recognized with regard to the fourth prong of
the inquiry in some cases ldquoit would be the reversal of a conviction which
would have th[e] effectrdquo of ldquoseriously affect[ing] the fairness integrity or public
-28shy
reputation of judicial proceedingsrdquo Johnson 520 US at 470 (internal quotations
omitted) (emphasis added) see also United States v McGhee 119 F3d 422 424shy
425 (6th Cir 1997) This is so because ldquo[r]eversal for error regardless of its effect
on the judgment encourages litigants to abuse the judicial process and bestirs the
public to ridicule itrdquo Johnson 520 US at 470 (citation and internal quotations
omitted) see also McGhee 119 F3d at 424-425
In view of the foregoing courts often cite the presence of overwhelming
evidence as the basis for concluding that a defendant has failed to meet both the
third and fourth prongs of the plain-error inquiry See Hines 398 F3d at 718-719
United States v Dedhia 134 F3d 802 809 (6th Cir) cert denied 523 US 1145
(1998) see also United States v Birk 453 F3d 893 898 (7th Cir 2006) United
States v Taylor 284 F3d 95 102 (1st Cir) cert denied 536 US 933 (2002)
This Court should follow that approach here as there is overwhelming evidence ndash
separate and apart from the challenged statements ndash to support defendantrsquos
conviction Specifically as explained more fully below testimony at trial
established that defendant (1) spoke openly to others during the weeks leading up
to the fire regarding his desire to force the Dosters from the neighborhood (2) was
the one who set the fire (3) confided to a friend afterward that he both set the fire
and performed the lawn job with the intent to drive the Dosters away because of
-29shy
their race and (4) told conflicting stories to the FBI during the course of its
investigation one of which included an admission that he was at least indirectly
involved in setting the fire
1 Defendantrsquos Statements Prior To The Fire
Two witnesses offered detailed accounts of conversations they had with
defendant prior to the date of the fire During these conversations defendant
expressed his desire to drive the Dosters from their home
Guy Wurts testified that in mid-July 2002 Defendant said something to the
effect of ldquoI got to get rid of these niggers Irsquoll find something to do I donrsquot know
what I got to get these niggers out [of] the neighborhoodrdquo (Wurts 417 Tr 208shy
209 Apx __) Wurts testified that defendant looked in the Dostersrsquo direction
when he made these comments and said the word ldquoniggerrdquo loud enough for the
Dosters ndash who were working in their yard at the time ndash to hear it (Wurts 417 Tr
202-203 209-210 Apx __) Wurts further testified that defendant ldquoseemed
seriousrdquo when he made these statements (Wurts 417 Tr 259 Apx __)
Debbie Daniely recounted similar statements by defendant Specifically
defendant told Daniely more than once that he was very upset about the Dosters
moving into the neighborhood saying something to the effect of ldquoniggers are
moving inrdquo and ldquo[w]e have to do something about itrdquo (Daniely 418 Tr 22-25
-30shy
Apx __) Defendant later admitted to the FBI that he made such a statement to
ldquo[t]his Court has lsquoroutinely concluded that such claims are best brought by a
defendant in a post-conviction proceeding under 28 USC sect 2255 so that the
-37shy
parties can develop an adequate record on the issuersquordquo Martinez 430 F3d at 338
(quoting United States v Brown 332 F3d 363 368 (6th Cir 2003)) ldquoThere is
however lsquoa narrow exceptionrsquo to this rule lsquowhen the existing record is adequate to
assess properly the merits of the claimrsquordquo United States v Hynes 467 F3d 951
969 (6th Cir 2006) (quoting United States v Franklin 415 F3d 537 555-556
(6th Cir 2005)) See also United States v Winkle 477 F3d 407 421 (6th Cir
2007) (ldquoThis Court typically will not review a claim of ineffective assistance on
direct appeal except in rare cases where the error is apparent from the existing
recordrdquo) (quoting United States v Lopez-Medina 461 F3d 724 737 (6th Cir
2006))
No basis exists for departing from the general rule against addressing
ineffective-assistance claims on direct appeal As this Court has noted ldquo[t]he trial
process contains a myriad of complex decisions that for strategic reasons are
sound when made but may appear unsound with the benefit of hindsightrdquo United
States v Davis 306 F3d 398 422 (6th Cir 2002) cert denied 537 US 1208
(2003) (quoting United States v Fortson 194 F3d 730 736 (6th Cir 1999))
Moreover ldquo[j]udicial scrutiny of counselrsquos performance must be highly
deferentialrdquo and ldquoa court must indulge a strong presumption that counselrsquos
conduct falls within the wide range of reasonable professional assistancerdquo
-38shy
Strickland v Washington 466 US 668 689 (1984) Thus to establish ineffective
assistance ldquothe defendant must overcome the presumption that under the
circumstances the challenged action lsquomight be considered sound trial strategyrsquordquo
Ibid (quoting Michel v Louisiana 350 US 91 101 (1955))
Here the decision by defendantrsquos retained trial counsel to elicit the
challenged statements during cross-examination of a government witness
undeniably constitutes an element of trial strategy that cannot be analyzed at this
stage of the proceedings In particular because this is a direct appeal there is no
evidence in the record regarding defense counselrsquos trial strategy This Court
repeatedly has refused to review ineffective-assistance claims under such
circumstances See eg Lopez-Medina 461 F3d at 737 (ldquoAbsent evidence
specifically addressing counselrsquos performance we cannot determine whether his
actions reflected a reasoned trial strategyrdquo) United States v Sullivan 431 F3d
976 986 (6th Cir 2005) (ldquoWithout an explanation from trial counsel as to why he
failed to call the alibi witness we have no basis to determine whether this decision
was the result of inadequate representation or reasonable trial strategyrdquo) United
States v Allison 59 F3d 43 47 (6th Cir) cert denied 516 US 1002 (1995)
(ldquo[T]he sparse record before this court does not reveal whether the attorneyrsquos
actions could be considered sound trial strategyrdquo) United States v Snow 48 F3d
-39shy
198 199 (6th Cir 1995) (ldquoThe record before this court simply is insufficient to
show whether the alleged wrongful acts could be considered sound trial
strategyrdquo) Thus defendantrsquos ineffective-assistance claim must be examined ndash if
at all ndash in a separate collateral proceeding brought pursuant to Section 2255
C The Evidence That Is Available In The Record Does Not Support A Finding Of Ineffective Assistance Of Counsel
As stated above the governmentrsquos position is that the current record is not
sufficient to permit this Court to address defendantrsquos ineffective-assistance claim
in this direct appeal However if the Court disagrees ndash or desires in the interest of
judicial economy to address defendantrsquos claim on direct appeal ndash it should reject
the claim because defendant fails to satisfy the second prong of the ineffective-
assistance inquiry11
11 The government does not concede that the first prong of the Strickland inquiry is satisfied in this case Rather as noted above it is not possible to resolve the issue at this point because the record does not indicate precisely what defendantrsquos trial counsel was thinking what his strategy was or why he elected to pursue certain lines of questioning In the event that defendant elects to bring a collateral challenge pursuant to Section 2255 the government reserves the right to address the first prong of Strickland inquiry and to further develop its argument as to the second prong The governmentrsquos decision not to do so in this brief is based on the incomplete nature of the record with regard to the Strickland inquiry and should not be construed as a waiver or forfeiture of any arguments relating to defendantrsquos ineffective-assistance claim
-40shy
1 Standard For Establishing Ineffective Assistance Of Counsel
To prove ineffective assistance of counsel under Strickland a defendant
first ldquomust demonstrate that counselrsquos performance fell lsquobelow the objective
standard of reasonablenessrsquordquo Ivory v Jackson 509 F3d 284 294 (6th Cir 2007)
cert denied 128 S Ct 1897 (2008) (quoting Strickland 466 US at 688)) ldquoThe
defendant must then demonstrate that lsquothere is a reasonable probability that but
for counselrsquos unprofessional errors the result of the proceeding would have been
different A reasonable probability is a probability sufficient to undermine the
confidence in the outcomersquordquo Ibid (quoting Strickland 466 US at 694)
Significantly this Court ldquoneed not decide whether defense counsel
performed deficiently if disposing of an ineffective-assistance claim on the ground
of lack of sufficient prejudice would be easierrdquo Hynes 467 F3d at 970 See also
Ivory 509 F3d at 294 (ldquo[A] court need not determine whether counselrsquos
performance was deficient before examining the prejudice suffered by the
defendant as a result of the alleged deficiencies If it is easier to dispose of
an ineffectiveness claim on the ground of lack of sufficient prejudice which we
expect will often be so that course should be followedrdquo) (quoting Strickland 466
US at 697)
-41shy
2 Defendant Is Unable To Demonstrate Sufficient Prejudice And Therefore Cannot Satisfy The Second Prong Of The Inquiry
ldquoTo show prejudice [defendant] must demonstrate that lsquothere is a
reasonable probability that but for counselrsquos unprofessional errors the result of
the proceeding would have been differentrsquordquo Harrison v Motley 478 F3d 750
756 (6th Cir) cert denied 128 S Ct 444 (2007) (quoting Strickland 466 US at
694)) As set forth above in Section IIC the evidence of defendantrsquos guilt is
overwhelming and the result therefore would not have been different absent the
challenged statements This Court repeatedly has determined that the second
prong of the Strickland inquiry is not met under such circumstances See eg
Harrison 478 F3d at 757 (defendant ldquofailed to show that his attorneysrsquo alleged
conflict of interest resulted in prejudicerdquo where ldquothe evidence admitted against
[defendant] at trial was lsquooverwhelmingrsquordquo) Hicks v Collins 384 F3d 204 215
(6th Cir 2004) cert denied 545 US 1155 (2005) (holding that defendant cannot
satisfy the second prong of Strickland where ldquothere was overwhelming evidence of
[defendantrsquos] guiltrdquo) Campbell v United States 364 F3d 727 736 (6th Cir
2004) cert denied 543 US 1119 (2005) (ldquoGiven the overwhelming evidence
establishing [defendantrsquos] guilt we believe that he would not have been able to
show that but for his attorneyrsquos failure to object to the prosecutorrsquos alleged
-42shy
misconduct the result would have been differentrdquo)
Accordingly even if this Court determines that the record is sufficient for it
to address defendantrsquos ineffective-assistance claim on direct appeal it should
reject this claim based on his failure to satisfy the second prong of the Strickland
inquiry
CONCLUSION
For the foregoing reasons this Court should affirm the judgment below
Respectfully submitted
GRACE CHUNG BECKER Acting Assistant Attorney General Civil Rights Division
DIANA K FLYNN DIRK C PHILLIPS Attorneys US Department of Justice Civil Rights Divisions Appellate Section Ben Franklin Station PO Box 14403 Washington DC 20044-4403 (202) 305-4876
CERTIFICATE OF COMPLIANCE
Pursuant to Federal Rule of Appellate Procedure 32(a)(7)(B) I hereby
certify that this brief is proportionally spaced 14-point Times New Roman font
Per WordPerfect 12 software the brief contains 9022 words excluding those
parts exempted by Federal Rule of Appellate Procedure 32(a)(7)(B)(iii)
DIRK C PHILLIPS Attorney
DATED June 18 2008
CERTIFICATE OF SERVICE
I hereby certify that on June 18 2008 a copy of the foregoing PROOF
BRIEF FOR THE UNITED STATES AS PLAINTIFF-APPELLEE was served by
first class mail postage prepaid on counsel of record at the following address
Joan E Morgan 2057 Orchard Lake Road Sylvan Lake MI 48320
DIRK C PHILLIPS Attorney
APPELLEErsquoS DESIGNATION OF APPENDIX CONTENTS
APPELLEErsquoS DESIGNATION OF APPENDIX CONTENTS
Appellee United States of America designates the following items to be
doctrine recognizes that a court cannot be asked by counsel to take a step in a case
and later be convicted of error because it has complied with such requestrdquo)
(citation and internal quotations omitted) ldquoThis doctrine is a branch of the
doctrine of waiver by which courts prevent a party from inducing an erroneous
ruling and later seeking to profit from the legal consequences by having the
verdict vacatedrdquo Barrow 118 F3d at 490-491
Some courts have held that the existence of invited error forecloses any
-20shy
review ndash even for plain error See eg United States v Baker 432 F3d 1189
1216 (11th Cir 2005) cert denied 547 US 1085 (2006) (ldquoIt is a cardinal rule of
appellate review that a party may not challenge as error a ruling or other trial
proceeding invited by that party Where invited error exists it precludes a
court from invoking the plain error rule and reversingrdquo) United States v Fulford
980 F2d 1110 1116 (7th Cir 1992) (ldquoIt is well-settled that where error is invited
not even plain error permits reversalrdquo) This Court however has recognized an
exception holding that ldquo[i]nvited error does not foreclose relief when the
interests of justice demand otherwiserdquo Barrow 118 F3d at 491 In this Circuit
the question ldquo[w]hether the circumstances of a particular case justify deviation
from the normal rule of waiver under this doctrine is left largely to the discretion
of the appellate courtrdquo Ibid Nevertheless ldquo[u]nder the invited error doctrine an
error introduced by the complaining party will cause reversal only in the most
exceptional situationrdquo United States v Tandon 111 F3d 482 489 (6th Cir
1997) (citation and internal quotations omitted)
C Any Error By The District Court In Permitting The Challenged Statements Was Invited Error And Therefore Should Not Be Reviewed By This Court
Here all of the challenged statements were elicited by defendantrsquos retained
trial counsel Br 15-24 This plainly constitutes invited error See United States
-21shy
v Parikh 858 F2d 688 695 (11th Cir 1988) (ldquoWe hold that the admission of out
of court statements by a government witness when responding to an inquiry by
defense counsel creates lsquoinvited errorrsquordquo) See also Baker 432 F3d at 1215-1216
(defendant ldquocannot now complain about the district courtrsquos errorrdquo where his
counsel ldquoinvited the errorrdquo by eliciting hearsay during cross-examination) United
States v Neal 78 F3d 901 904 (4th Cir 1996) (defendant ldquoinvited the errorrdquo and
it therefore ldquoprovides no basis for reversalrdquo where ldquo[a]t trial [defendant] did not
object to any of the statements he now challengesrdquo and ldquomost were elicited by his
own attorney from a government witness during cross-examinationrdquo) United
States v Reyes-Alvarado 963 F2d 1184 1187 (9th Cir 1992) cert denied 506
US 890 (1992) (finding invited error and refusing to reverse where ldquoappellantrsquos
counsel solicited the testimony which he now claims should have been excludedrdquo
and ldquodid not seek to strike this testimony at the time it was givenrdquo)9
As a threshold matter it bears noting that defendant fails to acknowledge
the existence of invited error and makes no argument as to why ldquothe interests of
justicerdquo Barrow 118 F3d at 491 require this Court to refrain from applying the
invited-error doctrine Accordingly defendant has waived any right to invoke the
9 This Court has reached a similar conclusion albeit in an unpublished decision See United States v Ali 38 Fed Appx 220 224 (6th Cir Mar 26 2002) (unpublished)
-22shy
interests-of-justice exception recognized by this Court See United States v
Samour 199 F3d 821 822 n1 (6th Cir 1999) (defendant ldquowaived his right to
argue the applicability of [favorable precedent] by failing to raise the issue on
appealrdquo)
Even if not waived however the interests of justice do not require this
Court to depart from the general rule that relief is foreclosed by invited error The
challenged statements were not the result of mere oversight or an isolated error by
defendantrsquos trial counsel Rather this appears to be a classic example of trial
strategy gone awry ndash not a situation in which failure to reverse contravenes the
interests of justice Indeed in this case the interests of justice weigh in favor of
invoking the invited-error doctrine as defendant presumably sought to benefit
from eliciting the challenged statements and thus should not now be heard to
argue their inadmissibility simply because his strategy failed See Reyes-
Alvarado 963 F2d at 1187 (ldquoFrom the transcript it appears that counsel thought
his pursuit of this line of questioning might benefit his client His tactics
backfired and his client was convicted A defendant cannot have it both
ways This was invited error and therefore not grounds for reversalrdquo)
Moreover the governmentrsquos trial counsel showed an abundance of caution
by specifically raising the issue and asking whether it should be discussed at
-23shy
sidebar10 This too weighs against a finding that the interests of justice require
reversal See Neal 78 F3d at 904 (ldquoAt one point the prosecutor even tried to
warn [defendantrsquos] attorney about pursuing a line of questioning relating to the
defendantrsquos prior conduct but [defendantrsquos] attorney persisted Under these
circumstances [defendant] cannot complain of error which he himself has
invitedrdquo) (citation and internal quotations omitted)
Simply put this case precisely illustrates both the purpose behind the
10 The following exchange occurred when defense counsel elicited statements from the witness regarding what Ricky Cotton told the government
[Defense Counsel] Just tell us what Ricky Cotton said and let me -shytell us what obviously is hearsay Irsquoll sit down Tell us what Ricky Cotton -shy
[Government Counsel] Your Honor should we have a sidebar on this
[The Court] What for
[Government Counsel] Irsquom not sure to figure out where we are
[Defense Counsel] This is where we are what Ricky Cotton said
[The Court] Are you objecting
[Government Counsel] If he doesnrsquot have any objection to the witness saying what Ricky Cotton said thatrsquos fine
[Defense Counsel] Letrsquos go Tell us what Ricky Cotton said
(418 Tr 173-174 Apx __)
-24shy
invited-error doctrine and the need to enforce it strictly Defendantrsquos appeal does
not challenge any action by the government Nor does he take issue with the
district courtrsquos instructions to the jury the sufficiency of the evidence to support
his conviction or the reasonableness of his sentence He also does not contend the
district court improperly ruled on any objection made by his trial counsel Rather
his arguments on appeal arise solely from the actions of his own retained trial
counsel Such claims must be rejected on their face as a contrary rule would
create perverse incentives for defendants to invite some small amount of error in
every trial so as to create grounds for appeal Accordingly this Court should
apply the invited-error doctrine and affirm the judgment below without reaching
the question whether plain error exists
II
THE DISTRICT COURT DID NOT COMMIT PLAIN ERROR IN FAILING TO SUA SPONTE PREVENT DEFENDANTrsquoS TRIAL COUNSEL FROM
ELICITING THE CHALLENGED TESTIMONY
As noted above in Section IA if this Court determines that the invited-
error doctrine does not apply it should review admission of the challenged
statements for plain error United States v Namey 364 F3d 843 846 (6th Cir
2004)
-25shy
A The Plain-Error Doctrine
ldquoThe plain error doctrine mandates reversal only in exceptional
circumstances and only where the error is so plain that the trial judge and
prosecutor were derelict in countenancing itrdquo United States v Gardiner 463 F3d
445 459 (6th Cir 2006) (quoting United States v Carroll 26 F3d 1380 1383
(6th Cir 1994)) It ldquois to be used sparingly only in exceptional circumstances
and solely to avoid a miscarriage of justicerdquo United States v Phillips 516 F3d
479 487 (6th Cir 2008) (quoting United States v Cox 957 F2d 264 267 (6th
Cir 1992))
ldquoTo show plain error a defendant must establish the following (1) error
(2) that is plain and (3) that affects substantial rights If these three conditions are
met an appellate court may then exercise its discretion to notice a forfeited error
but only if (4) the error seriously affects the fairness integrity or public reputation
of judicial proceedingsrdquo United States v Arnold 486 F3d 177 194 (6th Cir
2007) cert denied 128 S Ct 871 (2008) (citation and internal quotations
omitted) ldquoThe phrase lsquoaffects substantial rightsrsquo lsquomeans prejudicial It must have
affected the outcome of the district court proceedingsrsquordquo United States v
(ldquo[I]ssues adverted to in a perfunctory manner unaccompanied by some effort at
developed argumentation are deemed waivedrdquo) (quoting McPherson v Kelsey
125 F3d 989 995-996 (6th Cir 1997))
-27shy
C The Third And Fourth Prongs Of The Plain-Error Doctrine Are Not Satisfied In This Case Because Other Evidence Supporting Defendantrsquos Conviction Is Overwhelming
Even if the issue were fully briefed a finding of plain error would be
improper because defendant cannot satisfy the third or fourth prongs of the
inquiry The third prong of the plain-error inquiry ndash ie the requirement that the
error ldquoaffects substantial rightsrdquo Arnold 486 F3d at 194 by ldquoaffect[ing] the
outcome of the district court proceedingsrdquo Mooneyham 473 F3d at 288 ndash is not
satisfied where the evidence against the defendant is overwhelming See
Mooneyham 473 F3d at 288 United States v Hines 398 F3d 713 718-719 (6th
Cir) cert denied 545 US 1134 (2005)
Likewise the fourth prong of the inquiry ndash ie the requirement that the
error be said to have ldquoseriously affect[ed] the fairness integrity or public
reputation of judicial proceedingsrdquo Arnold 486 F3d at 194 ndash also is not met when
other evidence is ldquooverwhelmingrdquo and ldquoessentially uncontrovertedrdquo See United
States v Cotton 535 US 625 632-633 (2002) Johnson v United States 520
US 461 469-470 (1997) Hines 398 F3d at 718-719 Indeed as both the
Supreme Court and this Court have recognized with regard to the fourth prong of
the inquiry in some cases ldquoit would be the reversal of a conviction which
would have th[e] effectrdquo of ldquoseriously affect[ing] the fairness integrity or public
-28shy
reputation of judicial proceedingsrdquo Johnson 520 US at 470 (internal quotations
omitted) (emphasis added) see also United States v McGhee 119 F3d 422 424shy
425 (6th Cir 1997) This is so because ldquo[r]eversal for error regardless of its effect
on the judgment encourages litigants to abuse the judicial process and bestirs the
public to ridicule itrdquo Johnson 520 US at 470 (citation and internal quotations
omitted) see also McGhee 119 F3d at 424-425
In view of the foregoing courts often cite the presence of overwhelming
evidence as the basis for concluding that a defendant has failed to meet both the
third and fourth prongs of the plain-error inquiry See Hines 398 F3d at 718-719
United States v Dedhia 134 F3d 802 809 (6th Cir) cert denied 523 US 1145
(1998) see also United States v Birk 453 F3d 893 898 (7th Cir 2006) United
States v Taylor 284 F3d 95 102 (1st Cir) cert denied 536 US 933 (2002)
This Court should follow that approach here as there is overwhelming evidence ndash
separate and apart from the challenged statements ndash to support defendantrsquos
conviction Specifically as explained more fully below testimony at trial
established that defendant (1) spoke openly to others during the weeks leading up
to the fire regarding his desire to force the Dosters from the neighborhood (2) was
the one who set the fire (3) confided to a friend afterward that he both set the fire
and performed the lawn job with the intent to drive the Dosters away because of
-29shy
their race and (4) told conflicting stories to the FBI during the course of its
investigation one of which included an admission that he was at least indirectly
involved in setting the fire
1 Defendantrsquos Statements Prior To The Fire
Two witnesses offered detailed accounts of conversations they had with
defendant prior to the date of the fire During these conversations defendant
expressed his desire to drive the Dosters from their home
Guy Wurts testified that in mid-July 2002 Defendant said something to the
effect of ldquoI got to get rid of these niggers Irsquoll find something to do I donrsquot know
what I got to get these niggers out [of] the neighborhoodrdquo (Wurts 417 Tr 208shy
209 Apx __) Wurts testified that defendant looked in the Dostersrsquo direction
when he made these comments and said the word ldquoniggerrdquo loud enough for the
Dosters ndash who were working in their yard at the time ndash to hear it (Wurts 417 Tr
202-203 209-210 Apx __) Wurts further testified that defendant ldquoseemed
seriousrdquo when he made these statements (Wurts 417 Tr 259 Apx __)
Debbie Daniely recounted similar statements by defendant Specifically
defendant told Daniely more than once that he was very upset about the Dosters
moving into the neighborhood saying something to the effect of ldquoniggers are
moving inrdquo and ldquo[w]e have to do something about itrdquo (Daniely 418 Tr 22-25
-30shy
Apx __) Defendant later admitted to the FBI that he made such a statement to
ldquo[t]his Court has lsquoroutinely concluded that such claims are best brought by a
defendant in a post-conviction proceeding under 28 USC sect 2255 so that the
-37shy
parties can develop an adequate record on the issuersquordquo Martinez 430 F3d at 338
(quoting United States v Brown 332 F3d 363 368 (6th Cir 2003)) ldquoThere is
however lsquoa narrow exceptionrsquo to this rule lsquowhen the existing record is adequate to
assess properly the merits of the claimrsquordquo United States v Hynes 467 F3d 951
969 (6th Cir 2006) (quoting United States v Franklin 415 F3d 537 555-556
(6th Cir 2005)) See also United States v Winkle 477 F3d 407 421 (6th Cir
2007) (ldquoThis Court typically will not review a claim of ineffective assistance on
direct appeal except in rare cases where the error is apparent from the existing
recordrdquo) (quoting United States v Lopez-Medina 461 F3d 724 737 (6th Cir
2006))
No basis exists for departing from the general rule against addressing
ineffective-assistance claims on direct appeal As this Court has noted ldquo[t]he trial
process contains a myriad of complex decisions that for strategic reasons are
sound when made but may appear unsound with the benefit of hindsightrdquo United
States v Davis 306 F3d 398 422 (6th Cir 2002) cert denied 537 US 1208
(2003) (quoting United States v Fortson 194 F3d 730 736 (6th Cir 1999))
Moreover ldquo[j]udicial scrutiny of counselrsquos performance must be highly
deferentialrdquo and ldquoa court must indulge a strong presumption that counselrsquos
conduct falls within the wide range of reasonable professional assistancerdquo
-38shy
Strickland v Washington 466 US 668 689 (1984) Thus to establish ineffective
assistance ldquothe defendant must overcome the presumption that under the
circumstances the challenged action lsquomight be considered sound trial strategyrsquordquo
Ibid (quoting Michel v Louisiana 350 US 91 101 (1955))
Here the decision by defendantrsquos retained trial counsel to elicit the
challenged statements during cross-examination of a government witness
undeniably constitutes an element of trial strategy that cannot be analyzed at this
stage of the proceedings In particular because this is a direct appeal there is no
evidence in the record regarding defense counselrsquos trial strategy This Court
repeatedly has refused to review ineffective-assistance claims under such
circumstances See eg Lopez-Medina 461 F3d at 737 (ldquoAbsent evidence
specifically addressing counselrsquos performance we cannot determine whether his
actions reflected a reasoned trial strategyrdquo) United States v Sullivan 431 F3d
976 986 (6th Cir 2005) (ldquoWithout an explanation from trial counsel as to why he
failed to call the alibi witness we have no basis to determine whether this decision
was the result of inadequate representation or reasonable trial strategyrdquo) United
States v Allison 59 F3d 43 47 (6th Cir) cert denied 516 US 1002 (1995)
(ldquo[T]he sparse record before this court does not reveal whether the attorneyrsquos
actions could be considered sound trial strategyrdquo) United States v Snow 48 F3d
-39shy
198 199 (6th Cir 1995) (ldquoThe record before this court simply is insufficient to
show whether the alleged wrongful acts could be considered sound trial
strategyrdquo) Thus defendantrsquos ineffective-assistance claim must be examined ndash if
at all ndash in a separate collateral proceeding brought pursuant to Section 2255
C The Evidence That Is Available In The Record Does Not Support A Finding Of Ineffective Assistance Of Counsel
As stated above the governmentrsquos position is that the current record is not
sufficient to permit this Court to address defendantrsquos ineffective-assistance claim
in this direct appeal However if the Court disagrees ndash or desires in the interest of
judicial economy to address defendantrsquos claim on direct appeal ndash it should reject
the claim because defendant fails to satisfy the second prong of the ineffective-
assistance inquiry11
11 The government does not concede that the first prong of the Strickland inquiry is satisfied in this case Rather as noted above it is not possible to resolve the issue at this point because the record does not indicate precisely what defendantrsquos trial counsel was thinking what his strategy was or why he elected to pursue certain lines of questioning In the event that defendant elects to bring a collateral challenge pursuant to Section 2255 the government reserves the right to address the first prong of Strickland inquiry and to further develop its argument as to the second prong The governmentrsquos decision not to do so in this brief is based on the incomplete nature of the record with regard to the Strickland inquiry and should not be construed as a waiver or forfeiture of any arguments relating to defendantrsquos ineffective-assistance claim
-40shy
1 Standard For Establishing Ineffective Assistance Of Counsel
To prove ineffective assistance of counsel under Strickland a defendant
first ldquomust demonstrate that counselrsquos performance fell lsquobelow the objective
standard of reasonablenessrsquordquo Ivory v Jackson 509 F3d 284 294 (6th Cir 2007)
cert denied 128 S Ct 1897 (2008) (quoting Strickland 466 US at 688)) ldquoThe
defendant must then demonstrate that lsquothere is a reasonable probability that but
for counselrsquos unprofessional errors the result of the proceeding would have been
different A reasonable probability is a probability sufficient to undermine the
confidence in the outcomersquordquo Ibid (quoting Strickland 466 US at 694)
Significantly this Court ldquoneed not decide whether defense counsel
performed deficiently if disposing of an ineffective-assistance claim on the ground
of lack of sufficient prejudice would be easierrdquo Hynes 467 F3d at 970 See also
Ivory 509 F3d at 294 (ldquo[A] court need not determine whether counselrsquos
performance was deficient before examining the prejudice suffered by the
defendant as a result of the alleged deficiencies If it is easier to dispose of
an ineffectiveness claim on the ground of lack of sufficient prejudice which we
expect will often be so that course should be followedrdquo) (quoting Strickland 466
US at 697)
-41shy
2 Defendant Is Unable To Demonstrate Sufficient Prejudice And Therefore Cannot Satisfy The Second Prong Of The Inquiry
ldquoTo show prejudice [defendant] must demonstrate that lsquothere is a
reasonable probability that but for counselrsquos unprofessional errors the result of
the proceeding would have been differentrsquordquo Harrison v Motley 478 F3d 750
756 (6th Cir) cert denied 128 S Ct 444 (2007) (quoting Strickland 466 US at
694)) As set forth above in Section IIC the evidence of defendantrsquos guilt is
overwhelming and the result therefore would not have been different absent the
challenged statements This Court repeatedly has determined that the second
prong of the Strickland inquiry is not met under such circumstances See eg
Harrison 478 F3d at 757 (defendant ldquofailed to show that his attorneysrsquo alleged
conflict of interest resulted in prejudicerdquo where ldquothe evidence admitted against
[defendant] at trial was lsquooverwhelmingrsquordquo) Hicks v Collins 384 F3d 204 215
(6th Cir 2004) cert denied 545 US 1155 (2005) (holding that defendant cannot
satisfy the second prong of Strickland where ldquothere was overwhelming evidence of
[defendantrsquos] guiltrdquo) Campbell v United States 364 F3d 727 736 (6th Cir
2004) cert denied 543 US 1119 (2005) (ldquoGiven the overwhelming evidence
establishing [defendantrsquos] guilt we believe that he would not have been able to
show that but for his attorneyrsquos failure to object to the prosecutorrsquos alleged
-42shy
misconduct the result would have been differentrdquo)
Accordingly even if this Court determines that the record is sufficient for it
to address defendantrsquos ineffective-assistance claim on direct appeal it should
reject this claim based on his failure to satisfy the second prong of the Strickland
inquiry
CONCLUSION
For the foregoing reasons this Court should affirm the judgment below
Respectfully submitted
GRACE CHUNG BECKER Acting Assistant Attorney General Civil Rights Division
DIANA K FLYNN DIRK C PHILLIPS Attorneys US Department of Justice Civil Rights Divisions Appellate Section Ben Franklin Station PO Box 14403 Washington DC 20044-4403 (202) 305-4876
CERTIFICATE OF COMPLIANCE
Pursuant to Federal Rule of Appellate Procedure 32(a)(7)(B) I hereby
certify that this brief is proportionally spaced 14-point Times New Roman font
Per WordPerfect 12 software the brief contains 9022 words excluding those
parts exempted by Federal Rule of Appellate Procedure 32(a)(7)(B)(iii)
DIRK C PHILLIPS Attorney
DATED June 18 2008
CERTIFICATE OF SERVICE
I hereby certify that on June 18 2008 a copy of the foregoing PROOF
BRIEF FOR THE UNITED STATES AS PLAINTIFF-APPELLEE was served by
first class mail postage prepaid on counsel of record at the following address
Joan E Morgan 2057 Orchard Lake Road Sylvan Lake MI 48320
DIRK C PHILLIPS Attorney
APPELLEErsquoS DESIGNATION OF APPENDIX CONTENTS
APPELLEErsquoS DESIGNATION OF APPENDIX CONTENTS
Appellee United States of America designates the following items to be
doctrine recognizes that a court cannot be asked by counsel to take a step in a case
and later be convicted of error because it has complied with such requestrdquo)
(citation and internal quotations omitted) ldquoThis doctrine is a branch of the
doctrine of waiver by which courts prevent a party from inducing an erroneous
ruling and later seeking to profit from the legal consequences by having the
verdict vacatedrdquo Barrow 118 F3d at 490-491
Some courts have held that the existence of invited error forecloses any
-20shy
review ndash even for plain error See eg United States v Baker 432 F3d 1189
1216 (11th Cir 2005) cert denied 547 US 1085 (2006) (ldquoIt is a cardinal rule of
appellate review that a party may not challenge as error a ruling or other trial
proceeding invited by that party Where invited error exists it precludes a
court from invoking the plain error rule and reversingrdquo) United States v Fulford
980 F2d 1110 1116 (7th Cir 1992) (ldquoIt is well-settled that where error is invited
not even plain error permits reversalrdquo) This Court however has recognized an
exception holding that ldquo[i]nvited error does not foreclose relief when the
interests of justice demand otherwiserdquo Barrow 118 F3d at 491 In this Circuit
the question ldquo[w]hether the circumstances of a particular case justify deviation
from the normal rule of waiver under this doctrine is left largely to the discretion
of the appellate courtrdquo Ibid Nevertheless ldquo[u]nder the invited error doctrine an
error introduced by the complaining party will cause reversal only in the most
exceptional situationrdquo United States v Tandon 111 F3d 482 489 (6th Cir
1997) (citation and internal quotations omitted)
C Any Error By The District Court In Permitting The Challenged Statements Was Invited Error And Therefore Should Not Be Reviewed By This Court
Here all of the challenged statements were elicited by defendantrsquos retained
trial counsel Br 15-24 This plainly constitutes invited error See United States
-21shy
v Parikh 858 F2d 688 695 (11th Cir 1988) (ldquoWe hold that the admission of out
of court statements by a government witness when responding to an inquiry by
defense counsel creates lsquoinvited errorrsquordquo) See also Baker 432 F3d at 1215-1216
(defendant ldquocannot now complain about the district courtrsquos errorrdquo where his
counsel ldquoinvited the errorrdquo by eliciting hearsay during cross-examination) United
States v Neal 78 F3d 901 904 (4th Cir 1996) (defendant ldquoinvited the errorrdquo and
it therefore ldquoprovides no basis for reversalrdquo where ldquo[a]t trial [defendant] did not
object to any of the statements he now challengesrdquo and ldquomost were elicited by his
own attorney from a government witness during cross-examinationrdquo) United
States v Reyes-Alvarado 963 F2d 1184 1187 (9th Cir 1992) cert denied 506
US 890 (1992) (finding invited error and refusing to reverse where ldquoappellantrsquos
counsel solicited the testimony which he now claims should have been excludedrdquo
and ldquodid not seek to strike this testimony at the time it was givenrdquo)9
As a threshold matter it bears noting that defendant fails to acknowledge
the existence of invited error and makes no argument as to why ldquothe interests of
justicerdquo Barrow 118 F3d at 491 require this Court to refrain from applying the
invited-error doctrine Accordingly defendant has waived any right to invoke the
9 This Court has reached a similar conclusion albeit in an unpublished decision See United States v Ali 38 Fed Appx 220 224 (6th Cir Mar 26 2002) (unpublished)
-22shy
interests-of-justice exception recognized by this Court See United States v
Samour 199 F3d 821 822 n1 (6th Cir 1999) (defendant ldquowaived his right to
argue the applicability of [favorable precedent] by failing to raise the issue on
appealrdquo)
Even if not waived however the interests of justice do not require this
Court to depart from the general rule that relief is foreclosed by invited error The
challenged statements were not the result of mere oversight or an isolated error by
defendantrsquos trial counsel Rather this appears to be a classic example of trial
strategy gone awry ndash not a situation in which failure to reverse contravenes the
interests of justice Indeed in this case the interests of justice weigh in favor of
invoking the invited-error doctrine as defendant presumably sought to benefit
from eliciting the challenged statements and thus should not now be heard to
argue their inadmissibility simply because his strategy failed See Reyes-
Alvarado 963 F2d at 1187 (ldquoFrom the transcript it appears that counsel thought
his pursuit of this line of questioning might benefit his client His tactics
backfired and his client was convicted A defendant cannot have it both
ways This was invited error and therefore not grounds for reversalrdquo)
Moreover the governmentrsquos trial counsel showed an abundance of caution
by specifically raising the issue and asking whether it should be discussed at
-23shy
sidebar10 This too weighs against a finding that the interests of justice require
reversal See Neal 78 F3d at 904 (ldquoAt one point the prosecutor even tried to
warn [defendantrsquos] attorney about pursuing a line of questioning relating to the
defendantrsquos prior conduct but [defendantrsquos] attorney persisted Under these
circumstances [defendant] cannot complain of error which he himself has
invitedrdquo) (citation and internal quotations omitted)
Simply put this case precisely illustrates both the purpose behind the
10 The following exchange occurred when defense counsel elicited statements from the witness regarding what Ricky Cotton told the government
[Defense Counsel] Just tell us what Ricky Cotton said and let me -shytell us what obviously is hearsay Irsquoll sit down Tell us what Ricky Cotton -shy
[Government Counsel] Your Honor should we have a sidebar on this
[The Court] What for
[Government Counsel] Irsquom not sure to figure out where we are
[Defense Counsel] This is where we are what Ricky Cotton said
[The Court] Are you objecting
[Government Counsel] If he doesnrsquot have any objection to the witness saying what Ricky Cotton said thatrsquos fine
[Defense Counsel] Letrsquos go Tell us what Ricky Cotton said
(418 Tr 173-174 Apx __)
-24shy
invited-error doctrine and the need to enforce it strictly Defendantrsquos appeal does
not challenge any action by the government Nor does he take issue with the
district courtrsquos instructions to the jury the sufficiency of the evidence to support
his conviction or the reasonableness of his sentence He also does not contend the
district court improperly ruled on any objection made by his trial counsel Rather
his arguments on appeal arise solely from the actions of his own retained trial
counsel Such claims must be rejected on their face as a contrary rule would
create perverse incentives for defendants to invite some small amount of error in
every trial so as to create grounds for appeal Accordingly this Court should
apply the invited-error doctrine and affirm the judgment below without reaching
the question whether plain error exists
II
THE DISTRICT COURT DID NOT COMMIT PLAIN ERROR IN FAILING TO SUA SPONTE PREVENT DEFENDANTrsquoS TRIAL COUNSEL FROM
ELICITING THE CHALLENGED TESTIMONY
As noted above in Section IA if this Court determines that the invited-
error doctrine does not apply it should review admission of the challenged
statements for plain error United States v Namey 364 F3d 843 846 (6th Cir
2004)
-25shy
A The Plain-Error Doctrine
ldquoThe plain error doctrine mandates reversal only in exceptional
circumstances and only where the error is so plain that the trial judge and
prosecutor were derelict in countenancing itrdquo United States v Gardiner 463 F3d
445 459 (6th Cir 2006) (quoting United States v Carroll 26 F3d 1380 1383
(6th Cir 1994)) It ldquois to be used sparingly only in exceptional circumstances
and solely to avoid a miscarriage of justicerdquo United States v Phillips 516 F3d
479 487 (6th Cir 2008) (quoting United States v Cox 957 F2d 264 267 (6th
Cir 1992))
ldquoTo show plain error a defendant must establish the following (1) error
(2) that is plain and (3) that affects substantial rights If these three conditions are
met an appellate court may then exercise its discretion to notice a forfeited error
but only if (4) the error seriously affects the fairness integrity or public reputation
of judicial proceedingsrdquo United States v Arnold 486 F3d 177 194 (6th Cir
2007) cert denied 128 S Ct 871 (2008) (citation and internal quotations
omitted) ldquoThe phrase lsquoaffects substantial rightsrsquo lsquomeans prejudicial It must have
affected the outcome of the district court proceedingsrsquordquo United States v
(ldquo[I]ssues adverted to in a perfunctory manner unaccompanied by some effort at
developed argumentation are deemed waivedrdquo) (quoting McPherson v Kelsey
125 F3d 989 995-996 (6th Cir 1997))
-27shy
C The Third And Fourth Prongs Of The Plain-Error Doctrine Are Not Satisfied In This Case Because Other Evidence Supporting Defendantrsquos Conviction Is Overwhelming
Even if the issue were fully briefed a finding of plain error would be
improper because defendant cannot satisfy the third or fourth prongs of the
inquiry The third prong of the plain-error inquiry ndash ie the requirement that the
error ldquoaffects substantial rightsrdquo Arnold 486 F3d at 194 by ldquoaffect[ing] the
outcome of the district court proceedingsrdquo Mooneyham 473 F3d at 288 ndash is not
satisfied where the evidence against the defendant is overwhelming See
Mooneyham 473 F3d at 288 United States v Hines 398 F3d 713 718-719 (6th
Cir) cert denied 545 US 1134 (2005)
Likewise the fourth prong of the inquiry ndash ie the requirement that the
error be said to have ldquoseriously affect[ed] the fairness integrity or public
reputation of judicial proceedingsrdquo Arnold 486 F3d at 194 ndash also is not met when
other evidence is ldquooverwhelmingrdquo and ldquoessentially uncontrovertedrdquo See United
States v Cotton 535 US 625 632-633 (2002) Johnson v United States 520
US 461 469-470 (1997) Hines 398 F3d at 718-719 Indeed as both the
Supreme Court and this Court have recognized with regard to the fourth prong of
the inquiry in some cases ldquoit would be the reversal of a conviction which
would have th[e] effectrdquo of ldquoseriously affect[ing] the fairness integrity or public
-28shy
reputation of judicial proceedingsrdquo Johnson 520 US at 470 (internal quotations
omitted) (emphasis added) see also United States v McGhee 119 F3d 422 424shy
425 (6th Cir 1997) This is so because ldquo[r]eversal for error regardless of its effect
on the judgment encourages litigants to abuse the judicial process and bestirs the
public to ridicule itrdquo Johnson 520 US at 470 (citation and internal quotations
omitted) see also McGhee 119 F3d at 424-425
In view of the foregoing courts often cite the presence of overwhelming
evidence as the basis for concluding that a defendant has failed to meet both the
third and fourth prongs of the plain-error inquiry See Hines 398 F3d at 718-719
United States v Dedhia 134 F3d 802 809 (6th Cir) cert denied 523 US 1145
(1998) see also United States v Birk 453 F3d 893 898 (7th Cir 2006) United
States v Taylor 284 F3d 95 102 (1st Cir) cert denied 536 US 933 (2002)
This Court should follow that approach here as there is overwhelming evidence ndash
separate and apart from the challenged statements ndash to support defendantrsquos
conviction Specifically as explained more fully below testimony at trial
established that defendant (1) spoke openly to others during the weeks leading up
to the fire regarding his desire to force the Dosters from the neighborhood (2) was
the one who set the fire (3) confided to a friend afterward that he both set the fire
and performed the lawn job with the intent to drive the Dosters away because of
-29shy
their race and (4) told conflicting stories to the FBI during the course of its
investigation one of which included an admission that he was at least indirectly
involved in setting the fire
1 Defendantrsquos Statements Prior To The Fire
Two witnesses offered detailed accounts of conversations they had with
defendant prior to the date of the fire During these conversations defendant
expressed his desire to drive the Dosters from their home
Guy Wurts testified that in mid-July 2002 Defendant said something to the
effect of ldquoI got to get rid of these niggers Irsquoll find something to do I donrsquot know
what I got to get these niggers out [of] the neighborhoodrdquo (Wurts 417 Tr 208shy
209 Apx __) Wurts testified that defendant looked in the Dostersrsquo direction
when he made these comments and said the word ldquoniggerrdquo loud enough for the
Dosters ndash who were working in their yard at the time ndash to hear it (Wurts 417 Tr
202-203 209-210 Apx __) Wurts further testified that defendant ldquoseemed
seriousrdquo when he made these statements (Wurts 417 Tr 259 Apx __)
Debbie Daniely recounted similar statements by defendant Specifically
defendant told Daniely more than once that he was very upset about the Dosters
moving into the neighborhood saying something to the effect of ldquoniggers are
moving inrdquo and ldquo[w]e have to do something about itrdquo (Daniely 418 Tr 22-25
-30shy
Apx __) Defendant later admitted to the FBI that he made such a statement to
ldquo[t]his Court has lsquoroutinely concluded that such claims are best brought by a
defendant in a post-conviction proceeding under 28 USC sect 2255 so that the
-37shy
parties can develop an adequate record on the issuersquordquo Martinez 430 F3d at 338
(quoting United States v Brown 332 F3d 363 368 (6th Cir 2003)) ldquoThere is
however lsquoa narrow exceptionrsquo to this rule lsquowhen the existing record is adequate to
assess properly the merits of the claimrsquordquo United States v Hynes 467 F3d 951
969 (6th Cir 2006) (quoting United States v Franklin 415 F3d 537 555-556
(6th Cir 2005)) See also United States v Winkle 477 F3d 407 421 (6th Cir
2007) (ldquoThis Court typically will not review a claim of ineffective assistance on
direct appeal except in rare cases where the error is apparent from the existing
recordrdquo) (quoting United States v Lopez-Medina 461 F3d 724 737 (6th Cir
2006))
No basis exists for departing from the general rule against addressing
ineffective-assistance claims on direct appeal As this Court has noted ldquo[t]he trial
process contains a myriad of complex decisions that for strategic reasons are
sound when made but may appear unsound with the benefit of hindsightrdquo United
States v Davis 306 F3d 398 422 (6th Cir 2002) cert denied 537 US 1208
(2003) (quoting United States v Fortson 194 F3d 730 736 (6th Cir 1999))
Moreover ldquo[j]udicial scrutiny of counselrsquos performance must be highly
deferentialrdquo and ldquoa court must indulge a strong presumption that counselrsquos
conduct falls within the wide range of reasonable professional assistancerdquo
-38shy
Strickland v Washington 466 US 668 689 (1984) Thus to establish ineffective
assistance ldquothe defendant must overcome the presumption that under the
circumstances the challenged action lsquomight be considered sound trial strategyrsquordquo
Ibid (quoting Michel v Louisiana 350 US 91 101 (1955))
Here the decision by defendantrsquos retained trial counsel to elicit the
challenged statements during cross-examination of a government witness
undeniably constitutes an element of trial strategy that cannot be analyzed at this
stage of the proceedings In particular because this is a direct appeal there is no
evidence in the record regarding defense counselrsquos trial strategy This Court
repeatedly has refused to review ineffective-assistance claims under such
circumstances See eg Lopez-Medina 461 F3d at 737 (ldquoAbsent evidence
specifically addressing counselrsquos performance we cannot determine whether his
actions reflected a reasoned trial strategyrdquo) United States v Sullivan 431 F3d
976 986 (6th Cir 2005) (ldquoWithout an explanation from trial counsel as to why he
failed to call the alibi witness we have no basis to determine whether this decision
was the result of inadequate representation or reasonable trial strategyrdquo) United
States v Allison 59 F3d 43 47 (6th Cir) cert denied 516 US 1002 (1995)
(ldquo[T]he sparse record before this court does not reveal whether the attorneyrsquos
actions could be considered sound trial strategyrdquo) United States v Snow 48 F3d
-39shy
198 199 (6th Cir 1995) (ldquoThe record before this court simply is insufficient to
show whether the alleged wrongful acts could be considered sound trial
strategyrdquo) Thus defendantrsquos ineffective-assistance claim must be examined ndash if
at all ndash in a separate collateral proceeding brought pursuant to Section 2255
C The Evidence That Is Available In The Record Does Not Support A Finding Of Ineffective Assistance Of Counsel
As stated above the governmentrsquos position is that the current record is not
sufficient to permit this Court to address defendantrsquos ineffective-assistance claim
in this direct appeal However if the Court disagrees ndash or desires in the interest of
judicial economy to address defendantrsquos claim on direct appeal ndash it should reject
the claim because defendant fails to satisfy the second prong of the ineffective-
assistance inquiry11
11 The government does not concede that the first prong of the Strickland inquiry is satisfied in this case Rather as noted above it is not possible to resolve the issue at this point because the record does not indicate precisely what defendantrsquos trial counsel was thinking what his strategy was or why he elected to pursue certain lines of questioning In the event that defendant elects to bring a collateral challenge pursuant to Section 2255 the government reserves the right to address the first prong of Strickland inquiry and to further develop its argument as to the second prong The governmentrsquos decision not to do so in this brief is based on the incomplete nature of the record with regard to the Strickland inquiry and should not be construed as a waiver or forfeiture of any arguments relating to defendantrsquos ineffective-assistance claim
-40shy
1 Standard For Establishing Ineffective Assistance Of Counsel
To prove ineffective assistance of counsel under Strickland a defendant
first ldquomust demonstrate that counselrsquos performance fell lsquobelow the objective
standard of reasonablenessrsquordquo Ivory v Jackson 509 F3d 284 294 (6th Cir 2007)
cert denied 128 S Ct 1897 (2008) (quoting Strickland 466 US at 688)) ldquoThe
defendant must then demonstrate that lsquothere is a reasonable probability that but
for counselrsquos unprofessional errors the result of the proceeding would have been
different A reasonable probability is a probability sufficient to undermine the
confidence in the outcomersquordquo Ibid (quoting Strickland 466 US at 694)
Significantly this Court ldquoneed not decide whether defense counsel
performed deficiently if disposing of an ineffective-assistance claim on the ground
of lack of sufficient prejudice would be easierrdquo Hynes 467 F3d at 970 See also
Ivory 509 F3d at 294 (ldquo[A] court need not determine whether counselrsquos
performance was deficient before examining the prejudice suffered by the
defendant as a result of the alleged deficiencies If it is easier to dispose of
an ineffectiveness claim on the ground of lack of sufficient prejudice which we
expect will often be so that course should be followedrdquo) (quoting Strickland 466
US at 697)
-41shy
2 Defendant Is Unable To Demonstrate Sufficient Prejudice And Therefore Cannot Satisfy The Second Prong Of The Inquiry
ldquoTo show prejudice [defendant] must demonstrate that lsquothere is a
reasonable probability that but for counselrsquos unprofessional errors the result of
the proceeding would have been differentrsquordquo Harrison v Motley 478 F3d 750
756 (6th Cir) cert denied 128 S Ct 444 (2007) (quoting Strickland 466 US at
694)) As set forth above in Section IIC the evidence of defendantrsquos guilt is
overwhelming and the result therefore would not have been different absent the
challenged statements This Court repeatedly has determined that the second
prong of the Strickland inquiry is not met under such circumstances See eg
Harrison 478 F3d at 757 (defendant ldquofailed to show that his attorneysrsquo alleged
conflict of interest resulted in prejudicerdquo where ldquothe evidence admitted against
[defendant] at trial was lsquooverwhelmingrsquordquo) Hicks v Collins 384 F3d 204 215
(6th Cir 2004) cert denied 545 US 1155 (2005) (holding that defendant cannot
satisfy the second prong of Strickland where ldquothere was overwhelming evidence of
[defendantrsquos] guiltrdquo) Campbell v United States 364 F3d 727 736 (6th Cir
2004) cert denied 543 US 1119 (2005) (ldquoGiven the overwhelming evidence
establishing [defendantrsquos] guilt we believe that he would not have been able to
show that but for his attorneyrsquos failure to object to the prosecutorrsquos alleged
-42shy
misconduct the result would have been differentrdquo)
Accordingly even if this Court determines that the record is sufficient for it
to address defendantrsquos ineffective-assistance claim on direct appeal it should
reject this claim based on his failure to satisfy the second prong of the Strickland
inquiry
CONCLUSION
For the foregoing reasons this Court should affirm the judgment below
Respectfully submitted
GRACE CHUNG BECKER Acting Assistant Attorney General Civil Rights Division
DIANA K FLYNN DIRK C PHILLIPS Attorneys US Department of Justice Civil Rights Divisions Appellate Section Ben Franklin Station PO Box 14403 Washington DC 20044-4403 (202) 305-4876
CERTIFICATE OF COMPLIANCE
Pursuant to Federal Rule of Appellate Procedure 32(a)(7)(B) I hereby
certify that this brief is proportionally spaced 14-point Times New Roman font
Per WordPerfect 12 software the brief contains 9022 words excluding those
parts exempted by Federal Rule of Appellate Procedure 32(a)(7)(B)(iii)
DIRK C PHILLIPS Attorney
DATED June 18 2008
CERTIFICATE OF SERVICE
I hereby certify that on June 18 2008 a copy of the foregoing PROOF
BRIEF FOR THE UNITED STATES AS PLAINTIFF-APPELLEE was served by
first class mail postage prepaid on counsel of record at the following address
Joan E Morgan 2057 Orchard Lake Road Sylvan Lake MI 48320
DIRK C PHILLIPS Attorney
APPELLEErsquoS DESIGNATION OF APPENDIX CONTENTS
APPELLEErsquoS DESIGNATION OF APPENDIX CONTENTS
Appellee United States of America designates the following items to be
doctrine recognizes that a court cannot be asked by counsel to take a step in a case
and later be convicted of error because it has complied with such requestrdquo)
(citation and internal quotations omitted) ldquoThis doctrine is a branch of the
doctrine of waiver by which courts prevent a party from inducing an erroneous
ruling and later seeking to profit from the legal consequences by having the
verdict vacatedrdquo Barrow 118 F3d at 490-491
Some courts have held that the existence of invited error forecloses any
-20shy
review ndash even for plain error See eg United States v Baker 432 F3d 1189
1216 (11th Cir 2005) cert denied 547 US 1085 (2006) (ldquoIt is a cardinal rule of
appellate review that a party may not challenge as error a ruling or other trial
proceeding invited by that party Where invited error exists it precludes a
court from invoking the plain error rule and reversingrdquo) United States v Fulford
980 F2d 1110 1116 (7th Cir 1992) (ldquoIt is well-settled that where error is invited
not even plain error permits reversalrdquo) This Court however has recognized an
exception holding that ldquo[i]nvited error does not foreclose relief when the
interests of justice demand otherwiserdquo Barrow 118 F3d at 491 In this Circuit
the question ldquo[w]hether the circumstances of a particular case justify deviation
from the normal rule of waiver under this doctrine is left largely to the discretion
of the appellate courtrdquo Ibid Nevertheless ldquo[u]nder the invited error doctrine an
error introduced by the complaining party will cause reversal only in the most
exceptional situationrdquo United States v Tandon 111 F3d 482 489 (6th Cir
1997) (citation and internal quotations omitted)
C Any Error By The District Court In Permitting The Challenged Statements Was Invited Error And Therefore Should Not Be Reviewed By This Court
Here all of the challenged statements were elicited by defendantrsquos retained
trial counsel Br 15-24 This plainly constitutes invited error See United States
-21shy
v Parikh 858 F2d 688 695 (11th Cir 1988) (ldquoWe hold that the admission of out
of court statements by a government witness when responding to an inquiry by
defense counsel creates lsquoinvited errorrsquordquo) See also Baker 432 F3d at 1215-1216
(defendant ldquocannot now complain about the district courtrsquos errorrdquo where his
counsel ldquoinvited the errorrdquo by eliciting hearsay during cross-examination) United
States v Neal 78 F3d 901 904 (4th Cir 1996) (defendant ldquoinvited the errorrdquo and
it therefore ldquoprovides no basis for reversalrdquo where ldquo[a]t trial [defendant] did not
object to any of the statements he now challengesrdquo and ldquomost were elicited by his
own attorney from a government witness during cross-examinationrdquo) United
States v Reyes-Alvarado 963 F2d 1184 1187 (9th Cir 1992) cert denied 506
US 890 (1992) (finding invited error and refusing to reverse where ldquoappellantrsquos
counsel solicited the testimony which he now claims should have been excludedrdquo
and ldquodid not seek to strike this testimony at the time it was givenrdquo)9
As a threshold matter it bears noting that defendant fails to acknowledge
the existence of invited error and makes no argument as to why ldquothe interests of
justicerdquo Barrow 118 F3d at 491 require this Court to refrain from applying the
invited-error doctrine Accordingly defendant has waived any right to invoke the
9 This Court has reached a similar conclusion albeit in an unpublished decision See United States v Ali 38 Fed Appx 220 224 (6th Cir Mar 26 2002) (unpublished)
-22shy
interests-of-justice exception recognized by this Court See United States v
Samour 199 F3d 821 822 n1 (6th Cir 1999) (defendant ldquowaived his right to
argue the applicability of [favorable precedent] by failing to raise the issue on
appealrdquo)
Even if not waived however the interests of justice do not require this
Court to depart from the general rule that relief is foreclosed by invited error The
challenged statements were not the result of mere oversight or an isolated error by
defendantrsquos trial counsel Rather this appears to be a classic example of trial
strategy gone awry ndash not a situation in which failure to reverse contravenes the
interests of justice Indeed in this case the interests of justice weigh in favor of
invoking the invited-error doctrine as defendant presumably sought to benefit
from eliciting the challenged statements and thus should not now be heard to
argue their inadmissibility simply because his strategy failed See Reyes-
Alvarado 963 F2d at 1187 (ldquoFrom the transcript it appears that counsel thought
his pursuit of this line of questioning might benefit his client His tactics
backfired and his client was convicted A defendant cannot have it both
ways This was invited error and therefore not grounds for reversalrdquo)
Moreover the governmentrsquos trial counsel showed an abundance of caution
by specifically raising the issue and asking whether it should be discussed at
-23shy
sidebar10 This too weighs against a finding that the interests of justice require
reversal See Neal 78 F3d at 904 (ldquoAt one point the prosecutor even tried to
warn [defendantrsquos] attorney about pursuing a line of questioning relating to the
defendantrsquos prior conduct but [defendantrsquos] attorney persisted Under these
circumstances [defendant] cannot complain of error which he himself has
invitedrdquo) (citation and internal quotations omitted)
Simply put this case precisely illustrates both the purpose behind the
10 The following exchange occurred when defense counsel elicited statements from the witness regarding what Ricky Cotton told the government
[Defense Counsel] Just tell us what Ricky Cotton said and let me -shytell us what obviously is hearsay Irsquoll sit down Tell us what Ricky Cotton -shy
[Government Counsel] Your Honor should we have a sidebar on this
[The Court] What for
[Government Counsel] Irsquom not sure to figure out where we are
[Defense Counsel] This is where we are what Ricky Cotton said
[The Court] Are you objecting
[Government Counsel] If he doesnrsquot have any objection to the witness saying what Ricky Cotton said thatrsquos fine
[Defense Counsel] Letrsquos go Tell us what Ricky Cotton said
(418 Tr 173-174 Apx __)
-24shy
invited-error doctrine and the need to enforce it strictly Defendantrsquos appeal does
not challenge any action by the government Nor does he take issue with the
district courtrsquos instructions to the jury the sufficiency of the evidence to support
his conviction or the reasonableness of his sentence He also does not contend the
district court improperly ruled on any objection made by his trial counsel Rather
his arguments on appeal arise solely from the actions of his own retained trial
counsel Such claims must be rejected on their face as a contrary rule would
create perverse incentives for defendants to invite some small amount of error in
every trial so as to create grounds for appeal Accordingly this Court should
apply the invited-error doctrine and affirm the judgment below without reaching
the question whether plain error exists
II
THE DISTRICT COURT DID NOT COMMIT PLAIN ERROR IN FAILING TO SUA SPONTE PREVENT DEFENDANTrsquoS TRIAL COUNSEL FROM
ELICITING THE CHALLENGED TESTIMONY
As noted above in Section IA if this Court determines that the invited-
error doctrine does not apply it should review admission of the challenged
statements for plain error United States v Namey 364 F3d 843 846 (6th Cir
2004)
-25shy
A The Plain-Error Doctrine
ldquoThe plain error doctrine mandates reversal only in exceptional
circumstances and only where the error is so plain that the trial judge and
prosecutor were derelict in countenancing itrdquo United States v Gardiner 463 F3d
445 459 (6th Cir 2006) (quoting United States v Carroll 26 F3d 1380 1383
(6th Cir 1994)) It ldquois to be used sparingly only in exceptional circumstances
and solely to avoid a miscarriage of justicerdquo United States v Phillips 516 F3d
479 487 (6th Cir 2008) (quoting United States v Cox 957 F2d 264 267 (6th
Cir 1992))
ldquoTo show plain error a defendant must establish the following (1) error
(2) that is plain and (3) that affects substantial rights If these three conditions are
met an appellate court may then exercise its discretion to notice a forfeited error
but only if (4) the error seriously affects the fairness integrity or public reputation
of judicial proceedingsrdquo United States v Arnold 486 F3d 177 194 (6th Cir
2007) cert denied 128 S Ct 871 (2008) (citation and internal quotations
omitted) ldquoThe phrase lsquoaffects substantial rightsrsquo lsquomeans prejudicial It must have
affected the outcome of the district court proceedingsrsquordquo United States v
(ldquo[I]ssues adverted to in a perfunctory manner unaccompanied by some effort at
developed argumentation are deemed waivedrdquo) (quoting McPherson v Kelsey
125 F3d 989 995-996 (6th Cir 1997))
-27shy
C The Third And Fourth Prongs Of The Plain-Error Doctrine Are Not Satisfied In This Case Because Other Evidence Supporting Defendantrsquos Conviction Is Overwhelming
Even if the issue were fully briefed a finding of plain error would be
improper because defendant cannot satisfy the third or fourth prongs of the
inquiry The third prong of the plain-error inquiry ndash ie the requirement that the
error ldquoaffects substantial rightsrdquo Arnold 486 F3d at 194 by ldquoaffect[ing] the
outcome of the district court proceedingsrdquo Mooneyham 473 F3d at 288 ndash is not
satisfied where the evidence against the defendant is overwhelming See
Mooneyham 473 F3d at 288 United States v Hines 398 F3d 713 718-719 (6th
Cir) cert denied 545 US 1134 (2005)
Likewise the fourth prong of the inquiry ndash ie the requirement that the
error be said to have ldquoseriously affect[ed] the fairness integrity or public
reputation of judicial proceedingsrdquo Arnold 486 F3d at 194 ndash also is not met when
other evidence is ldquooverwhelmingrdquo and ldquoessentially uncontrovertedrdquo See United
States v Cotton 535 US 625 632-633 (2002) Johnson v United States 520
US 461 469-470 (1997) Hines 398 F3d at 718-719 Indeed as both the
Supreme Court and this Court have recognized with regard to the fourth prong of
the inquiry in some cases ldquoit would be the reversal of a conviction which
would have th[e] effectrdquo of ldquoseriously affect[ing] the fairness integrity or public
-28shy
reputation of judicial proceedingsrdquo Johnson 520 US at 470 (internal quotations
omitted) (emphasis added) see also United States v McGhee 119 F3d 422 424shy
425 (6th Cir 1997) This is so because ldquo[r]eversal for error regardless of its effect
on the judgment encourages litigants to abuse the judicial process and bestirs the
public to ridicule itrdquo Johnson 520 US at 470 (citation and internal quotations
omitted) see also McGhee 119 F3d at 424-425
In view of the foregoing courts often cite the presence of overwhelming
evidence as the basis for concluding that a defendant has failed to meet both the
third and fourth prongs of the plain-error inquiry See Hines 398 F3d at 718-719
United States v Dedhia 134 F3d 802 809 (6th Cir) cert denied 523 US 1145
(1998) see also United States v Birk 453 F3d 893 898 (7th Cir 2006) United
States v Taylor 284 F3d 95 102 (1st Cir) cert denied 536 US 933 (2002)
This Court should follow that approach here as there is overwhelming evidence ndash
separate and apart from the challenged statements ndash to support defendantrsquos
conviction Specifically as explained more fully below testimony at trial
established that defendant (1) spoke openly to others during the weeks leading up
to the fire regarding his desire to force the Dosters from the neighborhood (2) was
the one who set the fire (3) confided to a friend afterward that he both set the fire
and performed the lawn job with the intent to drive the Dosters away because of
-29shy
their race and (4) told conflicting stories to the FBI during the course of its
investigation one of which included an admission that he was at least indirectly
involved in setting the fire
1 Defendantrsquos Statements Prior To The Fire
Two witnesses offered detailed accounts of conversations they had with
defendant prior to the date of the fire During these conversations defendant
expressed his desire to drive the Dosters from their home
Guy Wurts testified that in mid-July 2002 Defendant said something to the
effect of ldquoI got to get rid of these niggers Irsquoll find something to do I donrsquot know
what I got to get these niggers out [of] the neighborhoodrdquo (Wurts 417 Tr 208shy
209 Apx __) Wurts testified that defendant looked in the Dostersrsquo direction
when he made these comments and said the word ldquoniggerrdquo loud enough for the
Dosters ndash who were working in their yard at the time ndash to hear it (Wurts 417 Tr
202-203 209-210 Apx __) Wurts further testified that defendant ldquoseemed
seriousrdquo when he made these statements (Wurts 417 Tr 259 Apx __)
Debbie Daniely recounted similar statements by defendant Specifically
defendant told Daniely more than once that he was very upset about the Dosters
moving into the neighborhood saying something to the effect of ldquoniggers are
moving inrdquo and ldquo[w]e have to do something about itrdquo (Daniely 418 Tr 22-25
-30shy
Apx __) Defendant later admitted to the FBI that he made such a statement to
ldquo[t]his Court has lsquoroutinely concluded that such claims are best brought by a
defendant in a post-conviction proceeding under 28 USC sect 2255 so that the
-37shy
parties can develop an adequate record on the issuersquordquo Martinez 430 F3d at 338
(quoting United States v Brown 332 F3d 363 368 (6th Cir 2003)) ldquoThere is
however lsquoa narrow exceptionrsquo to this rule lsquowhen the existing record is adequate to
assess properly the merits of the claimrsquordquo United States v Hynes 467 F3d 951
969 (6th Cir 2006) (quoting United States v Franklin 415 F3d 537 555-556
(6th Cir 2005)) See also United States v Winkle 477 F3d 407 421 (6th Cir
2007) (ldquoThis Court typically will not review a claim of ineffective assistance on
direct appeal except in rare cases where the error is apparent from the existing
recordrdquo) (quoting United States v Lopez-Medina 461 F3d 724 737 (6th Cir
2006))
No basis exists for departing from the general rule against addressing
ineffective-assistance claims on direct appeal As this Court has noted ldquo[t]he trial
process contains a myriad of complex decisions that for strategic reasons are
sound when made but may appear unsound with the benefit of hindsightrdquo United
States v Davis 306 F3d 398 422 (6th Cir 2002) cert denied 537 US 1208
(2003) (quoting United States v Fortson 194 F3d 730 736 (6th Cir 1999))
Moreover ldquo[j]udicial scrutiny of counselrsquos performance must be highly
deferentialrdquo and ldquoa court must indulge a strong presumption that counselrsquos
conduct falls within the wide range of reasonable professional assistancerdquo
-38shy
Strickland v Washington 466 US 668 689 (1984) Thus to establish ineffective
assistance ldquothe defendant must overcome the presumption that under the
circumstances the challenged action lsquomight be considered sound trial strategyrsquordquo
Ibid (quoting Michel v Louisiana 350 US 91 101 (1955))
Here the decision by defendantrsquos retained trial counsel to elicit the
challenged statements during cross-examination of a government witness
undeniably constitutes an element of trial strategy that cannot be analyzed at this
stage of the proceedings In particular because this is a direct appeal there is no
evidence in the record regarding defense counselrsquos trial strategy This Court
repeatedly has refused to review ineffective-assistance claims under such
circumstances See eg Lopez-Medina 461 F3d at 737 (ldquoAbsent evidence
specifically addressing counselrsquos performance we cannot determine whether his
actions reflected a reasoned trial strategyrdquo) United States v Sullivan 431 F3d
976 986 (6th Cir 2005) (ldquoWithout an explanation from trial counsel as to why he
failed to call the alibi witness we have no basis to determine whether this decision
was the result of inadequate representation or reasonable trial strategyrdquo) United
States v Allison 59 F3d 43 47 (6th Cir) cert denied 516 US 1002 (1995)
(ldquo[T]he sparse record before this court does not reveal whether the attorneyrsquos
actions could be considered sound trial strategyrdquo) United States v Snow 48 F3d
-39shy
198 199 (6th Cir 1995) (ldquoThe record before this court simply is insufficient to
show whether the alleged wrongful acts could be considered sound trial
strategyrdquo) Thus defendantrsquos ineffective-assistance claim must be examined ndash if
at all ndash in a separate collateral proceeding brought pursuant to Section 2255
C The Evidence That Is Available In The Record Does Not Support A Finding Of Ineffective Assistance Of Counsel
As stated above the governmentrsquos position is that the current record is not
sufficient to permit this Court to address defendantrsquos ineffective-assistance claim
in this direct appeal However if the Court disagrees ndash or desires in the interest of
judicial economy to address defendantrsquos claim on direct appeal ndash it should reject
the claim because defendant fails to satisfy the second prong of the ineffective-
assistance inquiry11
11 The government does not concede that the first prong of the Strickland inquiry is satisfied in this case Rather as noted above it is not possible to resolve the issue at this point because the record does not indicate precisely what defendantrsquos trial counsel was thinking what his strategy was or why he elected to pursue certain lines of questioning In the event that defendant elects to bring a collateral challenge pursuant to Section 2255 the government reserves the right to address the first prong of Strickland inquiry and to further develop its argument as to the second prong The governmentrsquos decision not to do so in this brief is based on the incomplete nature of the record with regard to the Strickland inquiry and should not be construed as a waiver or forfeiture of any arguments relating to defendantrsquos ineffective-assistance claim
-40shy
1 Standard For Establishing Ineffective Assistance Of Counsel
To prove ineffective assistance of counsel under Strickland a defendant
first ldquomust demonstrate that counselrsquos performance fell lsquobelow the objective
standard of reasonablenessrsquordquo Ivory v Jackson 509 F3d 284 294 (6th Cir 2007)
cert denied 128 S Ct 1897 (2008) (quoting Strickland 466 US at 688)) ldquoThe
defendant must then demonstrate that lsquothere is a reasonable probability that but
for counselrsquos unprofessional errors the result of the proceeding would have been
different A reasonable probability is a probability sufficient to undermine the
confidence in the outcomersquordquo Ibid (quoting Strickland 466 US at 694)
Significantly this Court ldquoneed not decide whether defense counsel
performed deficiently if disposing of an ineffective-assistance claim on the ground
of lack of sufficient prejudice would be easierrdquo Hynes 467 F3d at 970 See also
Ivory 509 F3d at 294 (ldquo[A] court need not determine whether counselrsquos
performance was deficient before examining the prejudice suffered by the
defendant as a result of the alleged deficiencies If it is easier to dispose of
an ineffectiveness claim on the ground of lack of sufficient prejudice which we
expect will often be so that course should be followedrdquo) (quoting Strickland 466
US at 697)
-41shy
2 Defendant Is Unable To Demonstrate Sufficient Prejudice And Therefore Cannot Satisfy The Second Prong Of The Inquiry
ldquoTo show prejudice [defendant] must demonstrate that lsquothere is a
reasonable probability that but for counselrsquos unprofessional errors the result of
the proceeding would have been differentrsquordquo Harrison v Motley 478 F3d 750
756 (6th Cir) cert denied 128 S Ct 444 (2007) (quoting Strickland 466 US at
694)) As set forth above in Section IIC the evidence of defendantrsquos guilt is
overwhelming and the result therefore would not have been different absent the
challenged statements This Court repeatedly has determined that the second
prong of the Strickland inquiry is not met under such circumstances See eg
Harrison 478 F3d at 757 (defendant ldquofailed to show that his attorneysrsquo alleged
conflict of interest resulted in prejudicerdquo where ldquothe evidence admitted against
[defendant] at trial was lsquooverwhelmingrsquordquo) Hicks v Collins 384 F3d 204 215
(6th Cir 2004) cert denied 545 US 1155 (2005) (holding that defendant cannot
satisfy the second prong of Strickland where ldquothere was overwhelming evidence of
[defendantrsquos] guiltrdquo) Campbell v United States 364 F3d 727 736 (6th Cir
2004) cert denied 543 US 1119 (2005) (ldquoGiven the overwhelming evidence
establishing [defendantrsquos] guilt we believe that he would not have been able to
show that but for his attorneyrsquos failure to object to the prosecutorrsquos alleged
-42shy
misconduct the result would have been differentrdquo)
Accordingly even if this Court determines that the record is sufficient for it
to address defendantrsquos ineffective-assistance claim on direct appeal it should
reject this claim based on his failure to satisfy the second prong of the Strickland
inquiry
CONCLUSION
For the foregoing reasons this Court should affirm the judgment below
Respectfully submitted
GRACE CHUNG BECKER Acting Assistant Attorney General Civil Rights Division
DIANA K FLYNN DIRK C PHILLIPS Attorneys US Department of Justice Civil Rights Divisions Appellate Section Ben Franklin Station PO Box 14403 Washington DC 20044-4403 (202) 305-4876
CERTIFICATE OF COMPLIANCE
Pursuant to Federal Rule of Appellate Procedure 32(a)(7)(B) I hereby
certify that this brief is proportionally spaced 14-point Times New Roman font
Per WordPerfect 12 software the brief contains 9022 words excluding those
parts exempted by Federal Rule of Appellate Procedure 32(a)(7)(B)(iii)
DIRK C PHILLIPS Attorney
DATED June 18 2008
CERTIFICATE OF SERVICE
I hereby certify that on June 18 2008 a copy of the foregoing PROOF
BRIEF FOR THE UNITED STATES AS PLAINTIFF-APPELLEE was served by
first class mail postage prepaid on counsel of record at the following address
Joan E Morgan 2057 Orchard Lake Road Sylvan Lake MI 48320
DIRK C PHILLIPS Attorney
APPELLEErsquoS DESIGNATION OF APPENDIX CONTENTS
APPELLEErsquoS DESIGNATION OF APPENDIX CONTENTS
Appellee United States of America designates the following items to be
doctrine recognizes that a court cannot be asked by counsel to take a step in a case
and later be convicted of error because it has complied with such requestrdquo)
(citation and internal quotations omitted) ldquoThis doctrine is a branch of the
doctrine of waiver by which courts prevent a party from inducing an erroneous
ruling and later seeking to profit from the legal consequences by having the
verdict vacatedrdquo Barrow 118 F3d at 490-491
Some courts have held that the existence of invited error forecloses any
-20shy
review ndash even for plain error See eg United States v Baker 432 F3d 1189
1216 (11th Cir 2005) cert denied 547 US 1085 (2006) (ldquoIt is a cardinal rule of
appellate review that a party may not challenge as error a ruling or other trial
proceeding invited by that party Where invited error exists it precludes a
court from invoking the plain error rule and reversingrdquo) United States v Fulford
980 F2d 1110 1116 (7th Cir 1992) (ldquoIt is well-settled that where error is invited
not even plain error permits reversalrdquo) This Court however has recognized an
exception holding that ldquo[i]nvited error does not foreclose relief when the
interests of justice demand otherwiserdquo Barrow 118 F3d at 491 In this Circuit
the question ldquo[w]hether the circumstances of a particular case justify deviation
from the normal rule of waiver under this doctrine is left largely to the discretion
of the appellate courtrdquo Ibid Nevertheless ldquo[u]nder the invited error doctrine an
error introduced by the complaining party will cause reversal only in the most
exceptional situationrdquo United States v Tandon 111 F3d 482 489 (6th Cir
1997) (citation and internal quotations omitted)
C Any Error By The District Court In Permitting The Challenged Statements Was Invited Error And Therefore Should Not Be Reviewed By This Court
Here all of the challenged statements were elicited by defendantrsquos retained
trial counsel Br 15-24 This plainly constitutes invited error See United States
-21shy
v Parikh 858 F2d 688 695 (11th Cir 1988) (ldquoWe hold that the admission of out
of court statements by a government witness when responding to an inquiry by
defense counsel creates lsquoinvited errorrsquordquo) See also Baker 432 F3d at 1215-1216
(defendant ldquocannot now complain about the district courtrsquos errorrdquo where his
counsel ldquoinvited the errorrdquo by eliciting hearsay during cross-examination) United
States v Neal 78 F3d 901 904 (4th Cir 1996) (defendant ldquoinvited the errorrdquo and
it therefore ldquoprovides no basis for reversalrdquo where ldquo[a]t trial [defendant] did not
object to any of the statements he now challengesrdquo and ldquomost were elicited by his
own attorney from a government witness during cross-examinationrdquo) United
States v Reyes-Alvarado 963 F2d 1184 1187 (9th Cir 1992) cert denied 506
US 890 (1992) (finding invited error and refusing to reverse where ldquoappellantrsquos
counsel solicited the testimony which he now claims should have been excludedrdquo
and ldquodid not seek to strike this testimony at the time it was givenrdquo)9
As a threshold matter it bears noting that defendant fails to acknowledge
the existence of invited error and makes no argument as to why ldquothe interests of
justicerdquo Barrow 118 F3d at 491 require this Court to refrain from applying the
invited-error doctrine Accordingly defendant has waived any right to invoke the
9 This Court has reached a similar conclusion albeit in an unpublished decision See United States v Ali 38 Fed Appx 220 224 (6th Cir Mar 26 2002) (unpublished)
-22shy
interests-of-justice exception recognized by this Court See United States v
Samour 199 F3d 821 822 n1 (6th Cir 1999) (defendant ldquowaived his right to
argue the applicability of [favorable precedent] by failing to raise the issue on
appealrdquo)
Even if not waived however the interests of justice do not require this
Court to depart from the general rule that relief is foreclosed by invited error The
challenged statements were not the result of mere oversight or an isolated error by
defendantrsquos trial counsel Rather this appears to be a classic example of trial
strategy gone awry ndash not a situation in which failure to reverse contravenes the
interests of justice Indeed in this case the interests of justice weigh in favor of
invoking the invited-error doctrine as defendant presumably sought to benefit
from eliciting the challenged statements and thus should not now be heard to
argue their inadmissibility simply because his strategy failed See Reyes-
Alvarado 963 F2d at 1187 (ldquoFrom the transcript it appears that counsel thought
his pursuit of this line of questioning might benefit his client His tactics
backfired and his client was convicted A defendant cannot have it both
ways This was invited error and therefore not grounds for reversalrdquo)
Moreover the governmentrsquos trial counsel showed an abundance of caution
by specifically raising the issue and asking whether it should be discussed at
-23shy
sidebar10 This too weighs against a finding that the interests of justice require
reversal See Neal 78 F3d at 904 (ldquoAt one point the prosecutor even tried to
warn [defendantrsquos] attorney about pursuing a line of questioning relating to the
defendantrsquos prior conduct but [defendantrsquos] attorney persisted Under these
circumstances [defendant] cannot complain of error which he himself has
invitedrdquo) (citation and internal quotations omitted)
Simply put this case precisely illustrates both the purpose behind the
10 The following exchange occurred when defense counsel elicited statements from the witness regarding what Ricky Cotton told the government
[Defense Counsel] Just tell us what Ricky Cotton said and let me -shytell us what obviously is hearsay Irsquoll sit down Tell us what Ricky Cotton -shy
[Government Counsel] Your Honor should we have a sidebar on this
[The Court] What for
[Government Counsel] Irsquom not sure to figure out where we are
[Defense Counsel] This is where we are what Ricky Cotton said
[The Court] Are you objecting
[Government Counsel] If he doesnrsquot have any objection to the witness saying what Ricky Cotton said thatrsquos fine
[Defense Counsel] Letrsquos go Tell us what Ricky Cotton said
(418 Tr 173-174 Apx __)
-24shy
invited-error doctrine and the need to enforce it strictly Defendantrsquos appeal does
not challenge any action by the government Nor does he take issue with the
district courtrsquos instructions to the jury the sufficiency of the evidence to support
his conviction or the reasonableness of his sentence He also does not contend the
district court improperly ruled on any objection made by his trial counsel Rather
his arguments on appeal arise solely from the actions of his own retained trial
counsel Such claims must be rejected on their face as a contrary rule would
create perverse incentives for defendants to invite some small amount of error in
every trial so as to create grounds for appeal Accordingly this Court should
apply the invited-error doctrine and affirm the judgment below without reaching
the question whether plain error exists
II
THE DISTRICT COURT DID NOT COMMIT PLAIN ERROR IN FAILING TO SUA SPONTE PREVENT DEFENDANTrsquoS TRIAL COUNSEL FROM
ELICITING THE CHALLENGED TESTIMONY
As noted above in Section IA if this Court determines that the invited-
error doctrine does not apply it should review admission of the challenged
statements for plain error United States v Namey 364 F3d 843 846 (6th Cir
2004)
-25shy
A The Plain-Error Doctrine
ldquoThe plain error doctrine mandates reversal only in exceptional
circumstances and only where the error is so plain that the trial judge and
prosecutor were derelict in countenancing itrdquo United States v Gardiner 463 F3d
445 459 (6th Cir 2006) (quoting United States v Carroll 26 F3d 1380 1383
(6th Cir 1994)) It ldquois to be used sparingly only in exceptional circumstances
and solely to avoid a miscarriage of justicerdquo United States v Phillips 516 F3d
479 487 (6th Cir 2008) (quoting United States v Cox 957 F2d 264 267 (6th
Cir 1992))
ldquoTo show plain error a defendant must establish the following (1) error
(2) that is plain and (3) that affects substantial rights If these three conditions are
met an appellate court may then exercise its discretion to notice a forfeited error
but only if (4) the error seriously affects the fairness integrity or public reputation
of judicial proceedingsrdquo United States v Arnold 486 F3d 177 194 (6th Cir
2007) cert denied 128 S Ct 871 (2008) (citation and internal quotations
omitted) ldquoThe phrase lsquoaffects substantial rightsrsquo lsquomeans prejudicial It must have
affected the outcome of the district court proceedingsrsquordquo United States v
(ldquo[I]ssues adverted to in a perfunctory manner unaccompanied by some effort at
developed argumentation are deemed waivedrdquo) (quoting McPherson v Kelsey
125 F3d 989 995-996 (6th Cir 1997))
-27shy
C The Third And Fourth Prongs Of The Plain-Error Doctrine Are Not Satisfied In This Case Because Other Evidence Supporting Defendantrsquos Conviction Is Overwhelming
Even if the issue were fully briefed a finding of plain error would be
improper because defendant cannot satisfy the third or fourth prongs of the
inquiry The third prong of the plain-error inquiry ndash ie the requirement that the
error ldquoaffects substantial rightsrdquo Arnold 486 F3d at 194 by ldquoaffect[ing] the
outcome of the district court proceedingsrdquo Mooneyham 473 F3d at 288 ndash is not
satisfied where the evidence against the defendant is overwhelming See
Mooneyham 473 F3d at 288 United States v Hines 398 F3d 713 718-719 (6th
Cir) cert denied 545 US 1134 (2005)
Likewise the fourth prong of the inquiry ndash ie the requirement that the
error be said to have ldquoseriously affect[ed] the fairness integrity or public
reputation of judicial proceedingsrdquo Arnold 486 F3d at 194 ndash also is not met when
other evidence is ldquooverwhelmingrdquo and ldquoessentially uncontrovertedrdquo See United
States v Cotton 535 US 625 632-633 (2002) Johnson v United States 520
US 461 469-470 (1997) Hines 398 F3d at 718-719 Indeed as both the
Supreme Court and this Court have recognized with regard to the fourth prong of
the inquiry in some cases ldquoit would be the reversal of a conviction which
would have th[e] effectrdquo of ldquoseriously affect[ing] the fairness integrity or public
-28shy
reputation of judicial proceedingsrdquo Johnson 520 US at 470 (internal quotations
omitted) (emphasis added) see also United States v McGhee 119 F3d 422 424shy
425 (6th Cir 1997) This is so because ldquo[r]eversal for error regardless of its effect
on the judgment encourages litigants to abuse the judicial process and bestirs the
public to ridicule itrdquo Johnson 520 US at 470 (citation and internal quotations
omitted) see also McGhee 119 F3d at 424-425
In view of the foregoing courts often cite the presence of overwhelming
evidence as the basis for concluding that a defendant has failed to meet both the
third and fourth prongs of the plain-error inquiry See Hines 398 F3d at 718-719
United States v Dedhia 134 F3d 802 809 (6th Cir) cert denied 523 US 1145
(1998) see also United States v Birk 453 F3d 893 898 (7th Cir 2006) United
States v Taylor 284 F3d 95 102 (1st Cir) cert denied 536 US 933 (2002)
This Court should follow that approach here as there is overwhelming evidence ndash
separate and apart from the challenged statements ndash to support defendantrsquos
conviction Specifically as explained more fully below testimony at trial
established that defendant (1) spoke openly to others during the weeks leading up
to the fire regarding his desire to force the Dosters from the neighborhood (2) was
the one who set the fire (3) confided to a friend afterward that he both set the fire
and performed the lawn job with the intent to drive the Dosters away because of
-29shy
their race and (4) told conflicting stories to the FBI during the course of its
investigation one of which included an admission that he was at least indirectly
involved in setting the fire
1 Defendantrsquos Statements Prior To The Fire
Two witnesses offered detailed accounts of conversations they had with
defendant prior to the date of the fire During these conversations defendant
expressed his desire to drive the Dosters from their home
Guy Wurts testified that in mid-July 2002 Defendant said something to the
effect of ldquoI got to get rid of these niggers Irsquoll find something to do I donrsquot know
what I got to get these niggers out [of] the neighborhoodrdquo (Wurts 417 Tr 208shy
209 Apx __) Wurts testified that defendant looked in the Dostersrsquo direction
when he made these comments and said the word ldquoniggerrdquo loud enough for the
Dosters ndash who were working in their yard at the time ndash to hear it (Wurts 417 Tr
202-203 209-210 Apx __) Wurts further testified that defendant ldquoseemed
seriousrdquo when he made these statements (Wurts 417 Tr 259 Apx __)
Debbie Daniely recounted similar statements by defendant Specifically
defendant told Daniely more than once that he was very upset about the Dosters
moving into the neighborhood saying something to the effect of ldquoniggers are
moving inrdquo and ldquo[w]e have to do something about itrdquo (Daniely 418 Tr 22-25
-30shy
Apx __) Defendant later admitted to the FBI that he made such a statement to
ldquo[t]his Court has lsquoroutinely concluded that such claims are best brought by a
defendant in a post-conviction proceeding under 28 USC sect 2255 so that the
-37shy
parties can develop an adequate record on the issuersquordquo Martinez 430 F3d at 338
(quoting United States v Brown 332 F3d 363 368 (6th Cir 2003)) ldquoThere is
however lsquoa narrow exceptionrsquo to this rule lsquowhen the existing record is adequate to
assess properly the merits of the claimrsquordquo United States v Hynes 467 F3d 951
969 (6th Cir 2006) (quoting United States v Franklin 415 F3d 537 555-556
(6th Cir 2005)) See also United States v Winkle 477 F3d 407 421 (6th Cir
2007) (ldquoThis Court typically will not review a claim of ineffective assistance on
direct appeal except in rare cases where the error is apparent from the existing
recordrdquo) (quoting United States v Lopez-Medina 461 F3d 724 737 (6th Cir
2006))
No basis exists for departing from the general rule against addressing
ineffective-assistance claims on direct appeal As this Court has noted ldquo[t]he trial
process contains a myriad of complex decisions that for strategic reasons are
sound when made but may appear unsound with the benefit of hindsightrdquo United
States v Davis 306 F3d 398 422 (6th Cir 2002) cert denied 537 US 1208
(2003) (quoting United States v Fortson 194 F3d 730 736 (6th Cir 1999))
Moreover ldquo[j]udicial scrutiny of counselrsquos performance must be highly
deferentialrdquo and ldquoa court must indulge a strong presumption that counselrsquos
conduct falls within the wide range of reasonable professional assistancerdquo
-38shy
Strickland v Washington 466 US 668 689 (1984) Thus to establish ineffective
assistance ldquothe defendant must overcome the presumption that under the
circumstances the challenged action lsquomight be considered sound trial strategyrsquordquo
Ibid (quoting Michel v Louisiana 350 US 91 101 (1955))
Here the decision by defendantrsquos retained trial counsel to elicit the
challenged statements during cross-examination of a government witness
undeniably constitutes an element of trial strategy that cannot be analyzed at this
stage of the proceedings In particular because this is a direct appeal there is no
evidence in the record regarding defense counselrsquos trial strategy This Court
repeatedly has refused to review ineffective-assistance claims under such
circumstances See eg Lopez-Medina 461 F3d at 737 (ldquoAbsent evidence
specifically addressing counselrsquos performance we cannot determine whether his
actions reflected a reasoned trial strategyrdquo) United States v Sullivan 431 F3d
976 986 (6th Cir 2005) (ldquoWithout an explanation from trial counsel as to why he
failed to call the alibi witness we have no basis to determine whether this decision
was the result of inadequate representation or reasonable trial strategyrdquo) United
States v Allison 59 F3d 43 47 (6th Cir) cert denied 516 US 1002 (1995)
(ldquo[T]he sparse record before this court does not reveal whether the attorneyrsquos
actions could be considered sound trial strategyrdquo) United States v Snow 48 F3d
-39shy
198 199 (6th Cir 1995) (ldquoThe record before this court simply is insufficient to
show whether the alleged wrongful acts could be considered sound trial
strategyrdquo) Thus defendantrsquos ineffective-assistance claim must be examined ndash if
at all ndash in a separate collateral proceeding brought pursuant to Section 2255
C The Evidence That Is Available In The Record Does Not Support A Finding Of Ineffective Assistance Of Counsel
As stated above the governmentrsquos position is that the current record is not
sufficient to permit this Court to address defendantrsquos ineffective-assistance claim
in this direct appeal However if the Court disagrees ndash or desires in the interest of
judicial economy to address defendantrsquos claim on direct appeal ndash it should reject
the claim because defendant fails to satisfy the second prong of the ineffective-
assistance inquiry11
11 The government does not concede that the first prong of the Strickland inquiry is satisfied in this case Rather as noted above it is not possible to resolve the issue at this point because the record does not indicate precisely what defendantrsquos trial counsel was thinking what his strategy was or why he elected to pursue certain lines of questioning In the event that defendant elects to bring a collateral challenge pursuant to Section 2255 the government reserves the right to address the first prong of Strickland inquiry and to further develop its argument as to the second prong The governmentrsquos decision not to do so in this brief is based on the incomplete nature of the record with regard to the Strickland inquiry and should not be construed as a waiver or forfeiture of any arguments relating to defendantrsquos ineffective-assistance claim
-40shy
1 Standard For Establishing Ineffective Assistance Of Counsel
To prove ineffective assistance of counsel under Strickland a defendant
first ldquomust demonstrate that counselrsquos performance fell lsquobelow the objective
standard of reasonablenessrsquordquo Ivory v Jackson 509 F3d 284 294 (6th Cir 2007)
cert denied 128 S Ct 1897 (2008) (quoting Strickland 466 US at 688)) ldquoThe
defendant must then demonstrate that lsquothere is a reasonable probability that but
for counselrsquos unprofessional errors the result of the proceeding would have been
different A reasonable probability is a probability sufficient to undermine the
confidence in the outcomersquordquo Ibid (quoting Strickland 466 US at 694)
Significantly this Court ldquoneed not decide whether defense counsel
performed deficiently if disposing of an ineffective-assistance claim on the ground
of lack of sufficient prejudice would be easierrdquo Hynes 467 F3d at 970 See also
Ivory 509 F3d at 294 (ldquo[A] court need not determine whether counselrsquos
performance was deficient before examining the prejudice suffered by the
defendant as a result of the alleged deficiencies If it is easier to dispose of
an ineffectiveness claim on the ground of lack of sufficient prejudice which we
expect will often be so that course should be followedrdquo) (quoting Strickland 466
US at 697)
-41shy
2 Defendant Is Unable To Demonstrate Sufficient Prejudice And Therefore Cannot Satisfy The Second Prong Of The Inquiry
ldquoTo show prejudice [defendant] must demonstrate that lsquothere is a
reasonable probability that but for counselrsquos unprofessional errors the result of
the proceeding would have been differentrsquordquo Harrison v Motley 478 F3d 750
756 (6th Cir) cert denied 128 S Ct 444 (2007) (quoting Strickland 466 US at
694)) As set forth above in Section IIC the evidence of defendantrsquos guilt is
overwhelming and the result therefore would not have been different absent the
challenged statements This Court repeatedly has determined that the second
prong of the Strickland inquiry is not met under such circumstances See eg
Harrison 478 F3d at 757 (defendant ldquofailed to show that his attorneysrsquo alleged
conflict of interest resulted in prejudicerdquo where ldquothe evidence admitted against
[defendant] at trial was lsquooverwhelmingrsquordquo) Hicks v Collins 384 F3d 204 215
(6th Cir 2004) cert denied 545 US 1155 (2005) (holding that defendant cannot
satisfy the second prong of Strickland where ldquothere was overwhelming evidence of
[defendantrsquos] guiltrdquo) Campbell v United States 364 F3d 727 736 (6th Cir
2004) cert denied 543 US 1119 (2005) (ldquoGiven the overwhelming evidence
establishing [defendantrsquos] guilt we believe that he would not have been able to
show that but for his attorneyrsquos failure to object to the prosecutorrsquos alleged
-42shy
misconduct the result would have been differentrdquo)
Accordingly even if this Court determines that the record is sufficient for it
to address defendantrsquos ineffective-assistance claim on direct appeal it should
reject this claim based on his failure to satisfy the second prong of the Strickland
inquiry
CONCLUSION
For the foregoing reasons this Court should affirm the judgment below
Respectfully submitted
GRACE CHUNG BECKER Acting Assistant Attorney General Civil Rights Division
DIANA K FLYNN DIRK C PHILLIPS Attorneys US Department of Justice Civil Rights Divisions Appellate Section Ben Franklin Station PO Box 14403 Washington DC 20044-4403 (202) 305-4876
CERTIFICATE OF COMPLIANCE
Pursuant to Federal Rule of Appellate Procedure 32(a)(7)(B) I hereby
certify that this brief is proportionally spaced 14-point Times New Roman font
Per WordPerfect 12 software the brief contains 9022 words excluding those
parts exempted by Federal Rule of Appellate Procedure 32(a)(7)(B)(iii)
DIRK C PHILLIPS Attorney
DATED June 18 2008
CERTIFICATE OF SERVICE
I hereby certify that on June 18 2008 a copy of the foregoing PROOF
BRIEF FOR THE UNITED STATES AS PLAINTIFF-APPELLEE was served by
first class mail postage prepaid on counsel of record at the following address
Joan E Morgan 2057 Orchard Lake Road Sylvan Lake MI 48320
DIRK C PHILLIPS Attorney
APPELLEErsquoS DESIGNATION OF APPENDIX CONTENTS
APPELLEErsquoS DESIGNATION OF APPENDIX CONTENTS
Appellee United States of America designates the following items to be
doctrine recognizes that a court cannot be asked by counsel to take a step in a case
and later be convicted of error because it has complied with such requestrdquo)
(citation and internal quotations omitted) ldquoThis doctrine is a branch of the
doctrine of waiver by which courts prevent a party from inducing an erroneous
ruling and later seeking to profit from the legal consequences by having the
verdict vacatedrdquo Barrow 118 F3d at 490-491
Some courts have held that the existence of invited error forecloses any
-20shy
review ndash even for plain error See eg United States v Baker 432 F3d 1189
1216 (11th Cir 2005) cert denied 547 US 1085 (2006) (ldquoIt is a cardinal rule of
appellate review that a party may not challenge as error a ruling or other trial
proceeding invited by that party Where invited error exists it precludes a
court from invoking the plain error rule and reversingrdquo) United States v Fulford
980 F2d 1110 1116 (7th Cir 1992) (ldquoIt is well-settled that where error is invited
not even plain error permits reversalrdquo) This Court however has recognized an
exception holding that ldquo[i]nvited error does not foreclose relief when the
interests of justice demand otherwiserdquo Barrow 118 F3d at 491 In this Circuit
the question ldquo[w]hether the circumstances of a particular case justify deviation
from the normal rule of waiver under this doctrine is left largely to the discretion
of the appellate courtrdquo Ibid Nevertheless ldquo[u]nder the invited error doctrine an
error introduced by the complaining party will cause reversal only in the most
exceptional situationrdquo United States v Tandon 111 F3d 482 489 (6th Cir
1997) (citation and internal quotations omitted)
C Any Error By The District Court In Permitting The Challenged Statements Was Invited Error And Therefore Should Not Be Reviewed By This Court
Here all of the challenged statements were elicited by defendantrsquos retained
trial counsel Br 15-24 This plainly constitutes invited error See United States
-21shy
v Parikh 858 F2d 688 695 (11th Cir 1988) (ldquoWe hold that the admission of out
of court statements by a government witness when responding to an inquiry by
defense counsel creates lsquoinvited errorrsquordquo) See also Baker 432 F3d at 1215-1216
(defendant ldquocannot now complain about the district courtrsquos errorrdquo where his
counsel ldquoinvited the errorrdquo by eliciting hearsay during cross-examination) United
States v Neal 78 F3d 901 904 (4th Cir 1996) (defendant ldquoinvited the errorrdquo and
it therefore ldquoprovides no basis for reversalrdquo where ldquo[a]t trial [defendant] did not
object to any of the statements he now challengesrdquo and ldquomost were elicited by his
own attorney from a government witness during cross-examinationrdquo) United
States v Reyes-Alvarado 963 F2d 1184 1187 (9th Cir 1992) cert denied 506
US 890 (1992) (finding invited error and refusing to reverse where ldquoappellantrsquos
counsel solicited the testimony which he now claims should have been excludedrdquo
and ldquodid not seek to strike this testimony at the time it was givenrdquo)9
As a threshold matter it bears noting that defendant fails to acknowledge
the existence of invited error and makes no argument as to why ldquothe interests of
justicerdquo Barrow 118 F3d at 491 require this Court to refrain from applying the
invited-error doctrine Accordingly defendant has waived any right to invoke the
9 This Court has reached a similar conclusion albeit in an unpublished decision See United States v Ali 38 Fed Appx 220 224 (6th Cir Mar 26 2002) (unpublished)
-22shy
interests-of-justice exception recognized by this Court See United States v
Samour 199 F3d 821 822 n1 (6th Cir 1999) (defendant ldquowaived his right to
argue the applicability of [favorable precedent] by failing to raise the issue on
appealrdquo)
Even if not waived however the interests of justice do not require this
Court to depart from the general rule that relief is foreclosed by invited error The
challenged statements were not the result of mere oversight or an isolated error by
defendantrsquos trial counsel Rather this appears to be a classic example of trial
strategy gone awry ndash not a situation in which failure to reverse contravenes the
interests of justice Indeed in this case the interests of justice weigh in favor of
invoking the invited-error doctrine as defendant presumably sought to benefit
from eliciting the challenged statements and thus should not now be heard to
argue their inadmissibility simply because his strategy failed See Reyes-
Alvarado 963 F2d at 1187 (ldquoFrom the transcript it appears that counsel thought
his pursuit of this line of questioning might benefit his client His tactics
backfired and his client was convicted A defendant cannot have it both
ways This was invited error and therefore not grounds for reversalrdquo)
Moreover the governmentrsquos trial counsel showed an abundance of caution
by specifically raising the issue and asking whether it should be discussed at
-23shy
sidebar10 This too weighs against a finding that the interests of justice require
reversal See Neal 78 F3d at 904 (ldquoAt one point the prosecutor even tried to
warn [defendantrsquos] attorney about pursuing a line of questioning relating to the
defendantrsquos prior conduct but [defendantrsquos] attorney persisted Under these
circumstances [defendant] cannot complain of error which he himself has
invitedrdquo) (citation and internal quotations omitted)
Simply put this case precisely illustrates both the purpose behind the
10 The following exchange occurred when defense counsel elicited statements from the witness regarding what Ricky Cotton told the government
[Defense Counsel] Just tell us what Ricky Cotton said and let me -shytell us what obviously is hearsay Irsquoll sit down Tell us what Ricky Cotton -shy
[Government Counsel] Your Honor should we have a sidebar on this
[The Court] What for
[Government Counsel] Irsquom not sure to figure out where we are
[Defense Counsel] This is where we are what Ricky Cotton said
[The Court] Are you objecting
[Government Counsel] If he doesnrsquot have any objection to the witness saying what Ricky Cotton said thatrsquos fine
[Defense Counsel] Letrsquos go Tell us what Ricky Cotton said
(418 Tr 173-174 Apx __)
-24shy
invited-error doctrine and the need to enforce it strictly Defendantrsquos appeal does
not challenge any action by the government Nor does he take issue with the
district courtrsquos instructions to the jury the sufficiency of the evidence to support
his conviction or the reasonableness of his sentence He also does not contend the
district court improperly ruled on any objection made by his trial counsel Rather
his arguments on appeal arise solely from the actions of his own retained trial
counsel Such claims must be rejected on their face as a contrary rule would
create perverse incentives for defendants to invite some small amount of error in
every trial so as to create grounds for appeal Accordingly this Court should
apply the invited-error doctrine and affirm the judgment below without reaching
the question whether plain error exists
II
THE DISTRICT COURT DID NOT COMMIT PLAIN ERROR IN FAILING TO SUA SPONTE PREVENT DEFENDANTrsquoS TRIAL COUNSEL FROM
ELICITING THE CHALLENGED TESTIMONY
As noted above in Section IA if this Court determines that the invited-
error doctrine does not apply it should review admission of the challenged
statements for plain error United States v Namey 364 F3d 843 846 (6th Cir
2004)
-25shy
A The Plain-Error Doctrine
ldquoThe plain error doctrine mandates reversal only in exceptional
circumstances and only where the error is so plain that the trial judge and
prosecutor were derelict in countenancing itrdquo United States v Gardiner 463 F3d
445 459 (6th Cir 2006) (quoting United States v Carroll 26 F3d 1380 1383
(6th Cir 1994)) It ldquois to be used sparingly only in exceptional circumstances
and solely to avoid a miscarriage of justicerdquo United States v Phillips 516 F3d
479 487 (6th Cir 2008) (quoting United States v Cox 957 F2d 264 267 (6th
Cir 1992))
ldquoTo show plain error a defendant must establish the following (1) error
(2) that is plain and (3) that affects substantial rights If these three conditions are
met an appellate court may then exercise its discretion to notice a forfeited error
but only if (4) the error seriously affects the fairness integrity or public reputation
of judicial proceedingsrdquo United States v Arnold 486 F3d 177 194 (6th Cir
2007) cert denied 128 S Ct 871 (2008) (citation and internal quotations
omitted) ldquoThe phrase lsquoaffects substantial rightsrsquo lsquomeans prejudicial It must have
affected the outcome of the district court proceedingsrsquordquo United States v
(ldquo[I]ssues adverted to in a perfunctory manner unaccompanied by some effort at
developed argumentation are deemed waivedrdquo) (quoting McPherson v Kelsey
125 F3d 989 995-996 (6th Cir 1997))
-27shy
C The Third And Fourth Prongs Of The Plain-Error Doctrine Are Not Satisfied In This Case Because Other Evidence Supporting Defendantrsquos Conviction Is Overwhelming
Even if the issue were fully briefed a finding of plain error would be
improper because defendant cannot satisfy the third or fourth prongs of the
inquiry The third prong of the plain-error inquiry ndash ie the requirement that the
error ldquoaffects substantial rightsrdquo Arnold 486 F3d at 194 by ldquoaffect[ing] the
outcome of the district court proceedingsrdquo Mooneyham 473 F3d at 288 ndash is not
satisfied where the evidence against the defendant is overwhelming See
Mooneyham 473 F3d at 288 United States v Hines 398 F3d 713 718-719 (6th
Cir) cert denied 545 US 1134 (2005)
Likewise the fourth prong of the inquiry ndash ie the requirement that the
error be said to have ldquoseriously affect[ed] the fairness integrity or public
reputation of judicial proceedingsrdquo Arnold 486 F3d at 194 ndash also is not met when
other evidence is ldquooverwhelmingrdquo and ldquoessentially uncontrovertedrdquo See United
States v Cotton 535 US 625 632-633 (2002) Johnson v United States 520
US 461 469-470 (1997) Hines 398 F3d at 718-719 Indeed as both the
Supreme Court and this Court have recognized with regard to the fourth prong of
the inquiry in some cases ldquoit would be the reversal of a conviction which
would have th[e] effectrdquo of ldquoseriously affect[ing] the fairness integrity or public
-28shy
reputation of judicial proceedingsrdquo Johnson 520 US at 470 (internal quotations
omitted) (emphasis added) see also United States v McGhee 119 F3d 422 424shy
425 (6th Cir 1997) This is so because ldquo[r]eversal for error regardless of its effect
on the judgment encourages litigants to abuse the judicial process and bestirs the
public to ridicule itrdquo Johnson 520 US at 470 (citation and internal quotations
omitted) see also McGhee 119 F3d at 424-425
In view of the foregoing courts often cite the presence of overwhelming
evidence as the basis for concluding that a defendant has failed to meet both the
third and fourth prongs of the plain-error inquiry See Hines 398 F3d at 718-719
United States v Dedhia 134 F3d 802 809 (6th Cir) cert denied 523 US 1145
(1998) see also United States v Birk 453 F3d 893 898 (7th Cir 2006) United
States v Taylor 284 F3d 95 102 (1st Cir) cert denied 536 US 933 (2002)
This Court should follow that approach here as there is overwhelming evidence ndash
separate and apart from the challenged statements ndash to support defendantrsquos
conviction Specifically as explained more fully below testimony at trial
established that defendant (1) spoke openly to others during the weeks leading up
to the fire regarding his desire to force the Dosters from the neighborhood (2) was
the one who set the fire (3) confided to a friend afterward that he both set the fire
and performed the lawn job with the intent to drive the Dosters away because of
-29shy
their race and (4) told conflicting stories to the FBI during the course of its
investigation one of which included an admission that he was at least indirectly
involved in setting the fire
1 Defendantrsquos Statements Prior To The Fire
Two witnesses offered detailed accounts of conversations they had with
defendant prior to the date of the fire During these conversations defendant
expressed his desire to drive the Dosters from their home
Guy Wurts testified that in mid-July 2002 Defendant said something to the
effect of ldquoI got to get rid of these niggers Irsquoll find something to do I donrsquot know
what I got to get these niggers out [of] the neighborhoodrdquo (Wurts 417 Tr 208shy
209 Apx __) Wurts testified that defendant looked in the Dostersrsquo direction
when he made these comments and said the word ldquoniggerrdquo loud enough for the
Dosters ndash who were working in their yard at the time ndash to hear it (Wurts 417 Tr
202-203 209-210 Apx __) Wurts further testified that defendant ldquoseemed
seriousrdquo when he made these statements (Wurts 417 Tr 259 Apx __)
Debbie Daniely recounted similar statements by defendant Specifically
defendant told Daniely more than once that he was very upset about the Dosters
moving into the neighborhood saying something to the effect of ldquoniggers are
moving inrdquo and ldquo[w]e have to do something about itrdquo (Daniely 418 Tr 22-25
-30shy
Apx __) Defendant later admitted to the FBI that he made such a statement to
ldquo[t]his Court has lsquoroutinely concluded that such claims are best brought by a
defendant in a post-conviction proceeding under 28 USC sect 2255 so that the
-37shy
parties can develop an adequate record on the issuersquordquo Martinez 430 F3d at 338
(quoting United States v Brown 332 F3d 363 368 (6th Cir 2003)) ldquoThere is
however lsquoa narrow exceptionrsquo to this rule lsquowhen the existing record is adequate to
assess properly the merits of the claimrsquordquo United States v Hynes 467 F3d 951
969 (6th Cir 2006) (quoting United States v Franklin 415 F3d 537 555-556
(6th Cir 2005)) See also United States v Winkle 477 F3d 407 421 (6th Cir
2007) (ldquoThis Court typically will not review a claim of ineffective assistance on
direct appeal except in rare cases where the error is apparent from the existing
recordrdquo) (quoting United States v Lopez-Medina 461 F3d 724 737 (6th Cir
2006))
No basis exists for departing from the general rule against addressing
ineffective-assistance claims on direct appeal As this Court has noted ldquo[t]he trial
process contains a myriad of complex decisions that for strategic reasons are
sound when made but may appear unsound with the benefit of hindsightrdquo United
States v Davis 306 F3d 398 422 (6th Cir 2002) cert denied 537 US 1208
(2003) (quoting United States v Fortson 194 F3d 730 736 (6th Cir 1999))
Moreover ldquo[j]udicial scrutiny of counselrsquos performance must be highly
deferentialrdquo and ldquoa court must indulge a strong presumption that counselrsquos
conduct falls within the wide range of reasonable professional assistancerdquo
-38shy
Strickland v Washington 466 US 668 689 (1984) Thus to establish ineffective
assistance ldquothe defendant must overcome the presumption that under the
circumstances the challenged action lsquomight be considered sound trial strategyrsquordquo
Ibid (quoting Michel v Louisiana 350 US 91 101 (1955))
Here the decision by defendantrsquos retained trial counsel to elicit the
challenged statements during cross-examination of a government witness
undeniably constitutes an element of trial strategy that cannot be analyzed at this
stage of the proceedings In particular because this is a direct appeal there is no
evidence in the record regarding defense counselrsquos trial strategy This Court
repeatedly has refused to review ineffective-assistance claims under such
circumstances See eg Lopez-Medina 461 F3d at 737 (ldquoAbsent evidence
specifically addressing counselrsquos performance we cannot determine whether his
actions reflected a reasoned trial strategyrdquo) United States v Sullivan 431 F3d
976 986 (6th Cir 2005) (ldquoWithout an explanation from trial counsel as to why he
failed to call the alibi witness we have no basis to determine whether this decision
was the result of inadequate representation or reasonable trial strategyrdquo) United
States v Allison 59 F3d 43 47 (6th Cir) cert denied 516 US 1002 (1995)
(ldquo[T]he sparse record before this court does not reveal whether the attorneyrsquos
actions could be considered sound trial strategyrdquo) United States v Snow 48 F3d
-39shy
198 199 (6th Cir 1995) (ldquoThe record before this court simply is insufficient to
show whether the alleged wrongful acts could be considered sound trial
strategyrdquo) Thus defendantrsquos ineffective-assistance claim must be examined ndash if
at all ndash in a separate collateral proceeding brought pursuant to Section 2255
C The Evidence That Is Available In The Record Does Not Support A Finding Of Ineffective Assistance Of Counsel
As stated above the governmentrsquos position is that the current record is not
sufficient to permit this Court to address defendantrsquos ineffective-assistance claim
in this direct appeal However if the Court disagrees ndash or desires in the interest of
judicial economy to address defendantrsquos claim on direct appeal ndash it should reject
the claim because defendant fails to satisfy the second prong of the ineffective-
assistance inquiry11
11 The government does not concede that the first prong of the Strickland inquiry is satisfied in this case Rather as noted above it is not possible to resolve the issue at this point because the record does not indicate precisely what defendantrsquos trial counsel was thinking what his strategy was or why he elected to pursue certain lines of questioning In the event that defendant elects to bring a collateral challenge pursuant to Section 2255 the government reserves the right to address the first prong of Strickland inquiry and to further develop its argument as to the second prong The governmentrsquos decision not to do so in this brief is based on the incomplete nature of the record with regard to the Strickland inquiry and should not be construed as a waiver or forfeiture of any arguments relating to defendantrsquos ineffective-assistance claim
-40shy
1 Standard For Establishing Ineffective Assistance Of Counsel
To prove ineffective assistance of counsel under Strickland a defendant
first ldquomust demonstrate that counselrsquos performance fell lsquobelow the objective
standard of reasonablenessrsquordquo Ivory v Jackson 509 F3d 284 294 (6th Cir 2007)
cert denied 128 S Ct 1897 (2008) (quoting Strickland 466 US at 688)) ldquoThe
defendant must then demonstrate that lsquothere is a reasonable probability that but
for counselrsquos unprofessional errors the result of the proceeding would have been
different A reasonable probability is a probability sufficient to undermine the
confidence in the outcomersquordquo Ibid (quoting Strickland 466 US at 694)
Significantly this Court ldquoneed not decide whether defense counsel
performed deficiently if disposing of an ineffective-assistance claim on the ground
of lack of sufficient prejudice would be easierrdquo Hynes 467 F3d at 970 See also
Ivory 509 F3d at 294 (ldquo[A] court need not determine whether counselrsquos
performance was deficient before examining the prejudice suffered by the
defendant as a result of the alleged deficiencies If it is easier to dispose of
an ineffectiveness claim on the ground of lack of sufficient prejudice which we
expect will often be so that course should be followedrdquo) (quoting Strickland 466
US at 697)
-41shy
2 Defendant Is Unable To Demonstrate Sufficient Prejudice And Therefore Cannot Satisfy The Second Prong Of The Inquiry
ldquoTo show prejudice [defendant] must demonstrate that lsquothere is a
reasonable probability that but for counselrsquos unprofessional errors the result of
the proceeding would have been differentrsquordquo Harrison v Motley 478 F3d 750
756 (6th Cir) cert denied 128 S Ct 444 (2007) (quoting Strickland 466 US at
694)) As set forth above in Section IIC the evidence of defendantrsquos guilt is
overwhelming and the result therefore would not have been different absent the
challenged statements This Court repeatedly has determined that the second
prong of the Strickland inquiry is not met under such circumstances See eg
Harrison 478 F3d at 757 (defendant ldquofailed to show that his attorneysrsquo alleged
conflict of interest resulted in prejudicerdquo where ldquothe evidence admitted against
[defendant] at trial was lsquooverwhelmingrsquordquo) Hicks v Collins 384 F3d 204 215
(6th Cir 2004) cert denied 545 US 1155 (2005) (holding that defendant cannot
satisfy the second prong of Strickland where ldquothere was overwhelming evidence of
[defendantrsquos] guiltrdquo) Campbell v United States 364 F3d 727 736 (6th Cir
2004) cert denied 543 US 1119 (2005) (ldquoGiven the overwhelming evidence
establishing [defendantrsquos] guilt we believe that he would not have been able to
show that but for his attorneyrsquos failure to object to the prosecutorrsquos alleged
-42shy
misconduct the result would have been differentrdquo)
Accordingly even if this Court determines that the record is sufficient for it
to address defendantrsquos ineffective-assistance claim on direct appeal it should
reject this claim based on his failure to satisfy the second prong of the Strickland
inquiry
CONCLUSION
For the foregoing reasons this Court should affirm the judgment below
Respectfully submitted
GRACE CHUNG BECKER Acting Assistant Attorney General Civil Rights Division
DIANA K FLYNN DIRK C PHILLIPS Attorneys US Department of Justice Civil Rights Divisions Appellate Section Ben Franklin Station PO Box 14403 Washington DC 20044-4403 (202) 305-4876
CERTIFICATE OF COMPLIANCE
Pursuant to Federal Rule of Appellate Procedure 32(a)(7)(B) I hereby
certify that this brief is proportionally spaced 14-point Times New Roman font
Per WordPerfect 12 software the brief contains 9022 words excluding those
parts exempted by Federal Rule of Appellate Procedure 32(a)(7)(B)(iii)
DIRK C PHILLIPS Attorney
DATED June 18 2008
CERTIFICATE OF SERVICE
I hereby certify that on June 18 2008 a copy of the foregoing PROOF
BRIEF FOR THE UNITED STATES AS PLAINTIFF-APPELLEE was served by
first class mail postage prepaid on counsel of record at the following address
Joan E Morgan 2057 Orchard Lake Road Sylvan Lake MI 48320
DIRK C PHILLIPS Attorney
APPELLEErsquoS DESIGNATION OF APPENDIX CONTENTS
APPELLEErsquoS DESIGNATION OF APPENDIX CONTENTS
Appellee United States of America designates the following items to be
doctrine recognizes that a court cannot be asked by counsel to take a step in a case
and later be convicted of error because it has complied with such requestrdquo)
(citation and internal quotations omitted) ldquoThis doctrine is a branch of the
doctrine of waiver by which courts prevent a party from inducing an erroneous
ruling and later seeking to profit from the legal consequences by having the
verdict vacatedrdquo Barrow 118 F3d at 490-491
Some courts have held that the existence of invited error forecloses any
-20shy
review ndash even for plain error See eg United States v Baker 432 F3d 1189
1216 (11th Cir 2005) cert denied 547 US 1085 (2006) (ldquoIt is a cardinal rule of
appellate review that a party may not challenge as error a ruling or other trial
proceeding invited by that party Where invited error exists it precludes a
court from invoking the plain error rule and reversingrdquo) United States v Fulford
980 F2d 1110 1116 (7th Cir 1992) (ldquoIt is well-settled that where error is invited
not even plain error permits reversalrdquo) This Court however has recognized an
exception holding that ldquo[i]nvited error does not foreclose relief when the
interests of justice demand otherwiserdquo Barrow 118 F3d at 491 In this Circuit
the question ldquo[w]hether the circumstances of a particular case justify deviation
from the normal rule of waiver under this doctrine is left largely to the discretion
of the appellate courtrdquo Ibid Nevertheless ldquo[u]nder the invited error doctrine an
error introduced by the complaining party will cause reversal only in the most
exceptional situationrdquo United States v Tandon 111 F3d 482 489 (6th Cir
1997) (citation and internal quotations omitted)
C Any Error By The District Court In Permitting The Challenged Statements Was Invited Error And Therefore Should Not Be Reviewed By This Court
Here all of the challenged statements were elicited by defendantrsquos retained
trial counsel Br 15-24 This plainly constitutes invited error See United States
-21shy
v Parikh 858 F2d 688 695 (11th Cir 1988) (ldquoWe hold that the admission of out
of court statements by a government witness when responding to an inquiry by
defense counsel creates lsquoinvited errorrsquordquo) See also Baker 432 F3d at 1215-1216
(defendant ldquocannot now complain about the district courtrsquos errorrdquo where his
counsel ldquoinvited the errorrdquo by eliciting hearsay during cross-examination) United
States v Neal 78 F3d 901 904 (4th Cir 1996) (defendant ldquoinvited the errorrdquo and
it therefore ldquoprovides no basis for reversalrdquo where ldquo[a]t trial [defendant] did not
object to any of the statements he now challengesrdquo and ldquomost were elicited by his
own attorney from a government witness during cross-examinationrdquo) United
States v Reyes-Alvarado 963 F2d 1184 1187 (9th Cir 1992) cert denied 506
US 890 (1992) (finding invited error and refusing to reverse where ldquoappellantrsquos
counsel solicited the testimony which he now claims should have been excludedrdquo
and ldquodid not seek to strike this testimony at the time it was givenrdquo)9
As a threshold matter it bears noting that defendant fails to acknowledge
the existence of invited error and makes no argument as to why ldquothe interests of
justicerdquo Barrow 118 F3d at 491 require this Court to refrain from applying the
invited-error doctrine Accordingly defendant has waived any right to invoke the
9 This Court has reached a similar conclusion albeit in an unpublished decision See United States v Ali 38 Fed Appx 220 224 (6th Cir Mar 26 2002) (unpublished)
-22shy
interests-of-justice exception recognized by this Court See United States v
Samour 199 F3d 821 822 n1 (6th Cir 1999) (defendant ldquowaived his right to
argue the applicability of [favorable precedent] by failing to raise the issue on
appealrdquo)
Even if not waived however the interests of justice do not require this
Court to depart from the general rule that relief is foreclosed by invited error The
challenged statements were not the result of mere oversight or an isolated error by
defendantrsquos trial counsel Rather this appears to be a classic example of trial
strategy gone awry ndash not a situation in which failure to reverse contravenes the
interests of justice Indeed in this case the interests of justice weigh in favor of
invoking the invited-error doctrine as defendant presumably sought to benefit
from eliciting the challenged statements and thus should not now be heard to
argue their inadmissibility simply because his strategy failed See Reyes-
Alvarado 963 F2d at 1187 (ldquoFrom the transcript it appears that counsel thought
his pursuit of this line of questioning might benefit his client His tactics
backfired and his client was convicted A defendant cannot have it both
ways This was invited error and therefore not grounds for reversalrdquo)
Moreover the governmentrsquos trial counsel showed an abundance of caution
by specifically raising the issue and asking whether it should be discussed at
-23shy
sidebar10 This too weighs against a finding that the interests of justice require
reversal See Neal 78 F3d at 904 (ldquoAt one point the prosecutor even tried to
warn [defendantrsquos] attorney about pursuing a line of questioning relating to the
defendantrsquos prior conduct but [defendantrsquos] attorney persisted Under these
circumstances [defendant] cannot complain of error which he himself has
invitedrdquo) (citation and internal quotations omitted)
Simply put this case precisely illustrates both the purpose behind the
10 The following exchange occurred when defense counsel elicited statements from the witness regarding what Ricky Cotton told the government
[Defense Counsel] Just tell us what Ricky Cotton said and let me -shytell us what obviously is hearsay Irsquoll sit down Tell us what Ricky Cotton -shy
[Government Counsel] Your Honor should we have a sidebar on this
[The Court] What for
[Government Counsel] Irsquom not sure to figure out where we are
[Defense Counsel] This is where we are what Ricky Cotton said
[The Court] Are you objecting
[Government Counsel] If he doesnrsquot have any objection to the witness saying what Ricky Cotton said thatrsquos fine
[Defense Counsel] Letrsquos go Tell us what Ricky Cotton said
(418 Tr 173-174 Apx __)
-24shy
invited-error doctrine and the need to enforce it strictly Defendantrsquos appeal does
not challenge any action by the government Nor does he take issue with the
district courtrsquos instructions to the jury the sufficiency of the evidence to support
his conviction or the reasonableness of his sentence He also does not contend the
district court improperly ruled on any objection made by his trial counsel Rather
his arguments on appeal arise solely from the actions of his own retained trial
counsel Such claims must be rejected on their face as a contrary rule would
create perverse incentives for defendants to invite some small amount of error in
every trial so as to create grounds for appeal Accordingly this Court should
apply the invited-error doctrine and affirm the judgment below without reaching
the question whether plain error exists
II
THE DISTRICT COURT DID NOT COMMIT PLAIN ERROR IN FAILING TO SUA SPONTE PREVENT DEFENDANTrsquoS TRIAL COUNSEL FROM
ELICITING THE CHALLENGED TESTIMONY
As noted above in Section IA if this Court determines that the invited-
error doctrine does not apply it should review admission of the challenged
statements for plain error United States v Namey 364 F3d 843 846 (6th Cir
2004)
-25shy
A The Plain-Error Doctrine
ldquoThe plain error doctrine mandates reversal only in exceptional
circumstances and only where the error is so plain that the trial judge and
prosecutor were derelict in countenancing itrdquo United States v Gardiner 463 F3d
445 459 (6th Cir 2006) (quoting United States v Carroll 26 F3d 1380 1383
(6th Cir 1994)) It ldquois to be used sparingly only in exceptional circumstances
and solely to avoid a miscarriage of justicerdquo United States v Phillips 516 F3d
479 487 (6th Cir 2008) (quoting United States v Cox 957 F2d 264 267 (6th
Cir 1992))
ldquoTo show plain error a defendant must establish the following (1) error
(2) that is plain and (3) that affects substantial rights If these three conditions are
met an appellate court may then exercise its discretion to notice a forfeited error
but only if (4) the error seriously affects the fairness integrity or public reputation
of judicial proceedingsrdquo United States v Arnold 486 F3d 177 194 (6th Cir
2007) cert denied 128 S Ct 871 (2008) (citation and internal quotations
omitted) ldquoThe phrase lsquoaffects substantial rightsrsquo lsquomeans prejudicial It must have
affected the outcome of the district court proceedingsrsquordquo United States v
(ldquo[I]ssues adverted to in a perfunctory manner unaccompanied by some effort at
developed argumentation are deemed waivedrdquo) (quoting McPherson v Kelsey
125 F3d 989 995-996 (6th Cir 1997))
-27shy
C The Third And Fourth Prongs Of The Plain-Error Doctrine Are Not Satisfied In This Case Because Other Evidence Supporting Defendantrsquos Conviction Is Overwhelming
Even if the issue were fully briefed a finding of plain error would be
improper because defendant cannot satisfy the third or fourth prongs of the
inquiry The third prong of the plain-error inquiry ndash ie the requirement that the
error ldquoaffects substantial rightsrdquo Arnold 486 F3d at 194 by ldquoaffect[ing] the
outcome of the district court proceedingsrdquo Mooneyham 473 F3d at 288 ndash is not
satisfied where the evidence against the defendant is overwhelming See
Mooneyham 473 F3d at 288 United States v Hines 398 F3d 713 718-719 (6th
Cir) cert denied 545 US 1134 (2005)
Likewise the fourth prong of the inquiry ndash ie the requirement that the
error be said to have ldquoseriously affect[ed] the fairness integrity or public
reputation of judicial proceedingsrdquo Arnold 486 F3d at 194 ndash also is not met when
other evidence is ldquooverwhelmingrdquo and ldquoessentially uncontrovertedrdquo See United
States v Cotton 535 US 625 632-633 (2002) Johnson v United States 520
US 461 469-470 (1997) Hines 398 F3d at 718-719 Indeed as both the
Supreme Court and this Court have recognized with regard to the fourth prong of
the inquiry in some cases ldquoit would be the reversal of a conviction which
would have th[e] effectrdquo of ldquoseriously affect[ing] the fairness integrity or public
-28shy
reputation of judicial proceedingsrdquo Johnson 520 US at 470 (internal quotations
omitted) (emphasis added) see also United States v McGhee 119 F3d 422 424shy
425 (6th Cir 1997) This is so because ldquo[r]eversal for error regardless of its effect
on the judgment encourages litigants to abuse the judicial process and bestirs the
public to ridicule itrdquo Johnson 520 US at 470 (citation and internal quotations
omitted) see also McGhee 119 F3d at 424-425
In view of the foregoing courts often cite the presence of overwhelming
evidence as the basis for concluding that a defendant has failed to meet both the
third and fourth prongs of the plain-error inquiry See Hines 398 F3d at 718-719
United States v Dedhia 134 F3d 802 809 (6th Cir) cert denied 523 US 1145
(1998) see also United States v Birk 453 F3d 893 898 (7th Cir 2006) United
States v Taylor 284 F3d 95 102 (1st Cir) cert denied 536 US 933 (2002)
This Court should follow that approach here as there is overwhelming evidence ndash
separate and apart from the challenged statements ndash to support defendantrsquos
conviction Specifically as explained more fully below testimony at trial
established that defendant (1) spoke openly to others during the weeks leading up
to the fire regarding his desire to force the Dosters from the neighborhood (2) was
the one who set the fire (3) confided to a friend afterward that he both set the fire
and performed the lawn job with the intent to drive the Dosters away because of
-29shy
their race and (4) told conflicting stories to the FBI during the course of its
investigation one of which included an admission that he was at least indirectly
involved in setting the fire
1 Defendantrsquos Statements Prior To The Fire
Two witnesses offered detailed accounts of conversations they had with
defendant prior to the date of the fire During these conversations defendant
expressed his desire to drive the Dosters from their home
Guy Wurts testified that in mid-July 2002 Defendant said something to the
effect of ldquoI got to get rid of these niggers Irsquoll find something to do I donrsquot know
what I got to get these niggers out [of] the neighborhoodrdquo (Wurts 417 Tr 208shy
209 Apx __) Wurts testified that defendant looked in the Dostersrsquo direction
when he made these comments and said the word ldquoniggerrdquo loud enough for the
Dosters ndash who were working in their yard at the time ndash to hear it (Wurts 417 Tr
202-203 209-210 Apx __) Wurts further testified that defendant ldquoseemed
seriousrdquo when he made these statements (Wurts 417 Tr 259 Apx __)
Debbie Daniely recounted similar statements by defendant Specifically
defendant told Daniely more than once that he was very upset about the Dosters
moving into the neighborhood saying something to the effect of ldquoniggers are
moving inrdquo and ldquo[w]e have to do something about itrdquo (Daniely 418 Tr 22-25
-30shy
Apx __) Defendant later admitted to the FBI that he made such a statement to
ldquo[t]his Court has lsquoroutinely concluded that such claims are best brought by a
defendant in a post-conviction proceeding under 28 USC sect 2255 so that the
-37shy
parties can develop an adequate record on the issuersquordquo Martinez 430 F3d at 338
(quoting United States v Brown 332 F3d 363 368 (6th Cir 2003)) ldquoThere is
however lsquoa narrow exceptionrsquo to this rule lsquowhen the existing record is adequate to
assess properly the merits of the claimrsquordquo United States v Hynes 467 F3d 951
969 (6th Cir 2006) (quoting United States v Franklin 415 F3d 537 555-556
(6th Cir 2005)) See also United States v Winkle 477 F3d 407 421 (6th Cir
2007) (ldquoThis Court typically will not review a claim of ineffective assistance on
direct appeal except in rare cases where the error is apparent from the existing
recordrdquo) (quoting United States v Lopez-Medina 461 F3d 724 737 (6th Cir
2006))
No basis exists for departing from the general rule against addressing
ineffective-assistance claims on direct appeal As this Court has noted ldquo[t]he trial
process contains a myriad of complex decisions that for strategic reasons are
sound when made but may appear unsound with the benefit of hindsightrdquo United
States v Davis 306 F3d 398 422 (6th Cir 2002) cert denied 537 US 1208
(2003) (quoting United States v Fortson 194 F3d 730 736 (6th Cir 1999))
Moreover ldquo[j]udicial scrutiny of counselrsquos performance must be highly
deferentialrdquo and ldquoa court must indulge a strong presumption that counselrsquos
conduct falls within the wide range of reasonable professional assistancerdquo
-38shy
Strickland v Washington 466 US 668 689 (1984) Thus to establish ineffective
assistance ldquothe defendant must overcome the presumption that under the
circumstances the challenged action lsquomight be considered sound trial strategyrsquordquo
Ibid (quoting Michel v Louisiana 350 US 91 101 (1955))
Here the decision by defendantrsquos retained trial counsel to elicit the
challenged statements during cross-examination of a government witness
undeniably constitutes an element of trial strategy that cannot be analyzed at this
stage of the proceedings In particular because this is a direct appeal there is no
evidence in the record regarding defense counselrsquos trial strategy This Court
repeatedly has refused to review ineffective-assistance claims under such
circumstances See eg Lopez-Medina 461 F3d at 737 (ldquoAbsent evidence
specifically addressing counselrsquos performance we cannot determine whether his
actions reflected a reasoned trial strategyrdquo) United States v Sullivan 431 F3d
976 986 (6th Cir 2005) (ldquoWithout an explanation from trial counsel as to why he
failed to call the alibi witness we have no basis to determine whether this decision
was the result of inadequate representation or reasonable trial strategyrdquo) United
States v Allison 59 F3d 43 47 (6th Cir) cert denied 516 US 1002 (1995)
(ldquo[T]he sparse record before this court does not reveal whether the attorneyrsquos
actions could be considered sound trial strategyrdquo) United States v Snow 48 F3d
-39shy
198 199 (6th Cir 1995) (ldquoThe record before this court simply is insufficient to
show whether the alleged wrongful acts could be considered sound trial
strategyrdquo) Thus defendantrsquos ineffective-assistance claim must be examined ndash if
at all ndash in a separate collateral proceeding brought pursuant to Section 2255
C The Evidence That Is Available In The Record Does Not Support A Finding Of Ineffective Assistance Of Counsel
As stated above the governmentrsquos position is that the current record is not
sufficient to permit this Court to address defendantrsquos ineffective-assistance claim
in this direct appeal However if the Court disagrees ndash or desires in the interest of
judicial economy to address defendantrsquos claim on direct appeal ndash it should reject
the claim because defendant fails to satisfy the second prong of the ineffective-
assistance inquiry11
11 The government does not concede that the first prong of the Strickland inquiry is satisfied in this case Rather as noted above it is not possible to resolve the issue at this point because the record does not indicate precisely what defendantrsquos trial counsel was thinking what his strategy was or why he elected to pursue certain lines of questioning In the event that defendant elects to bring a collateral challenge pursuant to Section 2255 the government reserves the right to address the first prong of Strickland inquiry and to further develop its argument as to the second prong The governmentrsquos decision not to do so in this brief is based on the incomplete nature of the record with regard to the Strickland inquiry and should not be construed as a waiver or forfeiture of any arguments relating to defendantrsquos ineffective-assistance claim
-40shy
1 Standard For Establishing Ineffective Assistance Of Counsel
To prove ineffective assistance of counsel under Strickland a defendant
first ldquomust demonstrate that counselrsquos performance fell lsquobelow the objective
standard of reasonablenessrsquordquo Ivory v Jackson 509 F3d 284 294 (6th Cir 2007)
cert denied 128 S Ct 1897 (2008) (quoting Strickland 466 US at 688)) ldquoThe
defendant must then demonstrate that lsquothere is a reasonable probability that but
for counselrsquos unprofessional errors the result of the proceeding would have been
different A reasonable probability is a probability sufficient to undermine the
confidence in the outcomersquordquo Ibid (quoting Strickland 466 US at 694)
Significantly this Court ldquoneed not decide whether defense counsel
performed deficiently if disposing of an ineffective-assistance claim on the ground
of lack of sufficient prejudice would be easierrdquo Hynes 467 F3d at 970 See also
Ivory 509 F3d at 294 (ldquo[A] court need not determine whether counselrsquos
performance was deficient before examining the prejudice suffered by the
defendant as a result of the alleged deficiencies If it is easier to dispose of
an ineffectiveness claim on the ground of lack of sufficient prejudice which we
expect will often be so that course should be followedrdquo) (quoting Strickland 466
US at 697)
-41shy
2 Defendant Is Unable To Demonstrate Sufficient Prejudice And Therefore Cannot Satisfy The Second Prong Of The Inquiry
ldquoTo show prejudice [defendant] must demonstrate that lsquothere is a
reasonable probability that but for counselrsquos unprofessional errors the result of
the proceeding would have been differentrsquordquo Harrison v Motley 478 F3d 750
756 (6th Cir) cert denied 128 S Ct 444 (2007) (quoting Strickland 466 US at
694)) As set forth above in Section IIC the evidence of defendantrsquos guilt is
overwhelming and the result therefore would not have been different absent the
challenged statements This Court repeatedly has determined that the second
prong of the Strickland inquiry is not met under such circumstances See eg
Harrison 478 F3d at 757 (defendant ldquofailed to show that his attorneysrsquo alleged
conflict of interest resulted in prejudicerdquo where ldquothe evidence admitted against
[defendant] at trial was lsquooverwhelmingrsquordquo) Hicks v Collins 384 F3d 204 215
(6th Cir 2004) cert denied 545 US 1155 (2005) (holding that defendant cannot
satisfy the second prong of Strickland where ldquothere was overwhelming evidence of
[defendantrsquos] guiltrdquo) Campbell v United States 364 F3d 727 736 (6th Cir
2004) cert denied 543 US 1119 (2005) (ldquoGiven the overwhelming evidence
establishing [defendantrsquos] guilt we believe that he would not have been able to
show that but for his attorneyrsquos failure to object to the prosecutorrsquos alleged
-42shy
misconduct the result would have been differentrdquo)
Accordingly even if this Court determines that the record is sufficient for it
to address defendantrsquos ineffective-assistance claim on direct appeal it should
reject this claim based on his failure to satisfy the second prong of the Strickland
inquiry
CONCLUSION
For the foregoing reasons this Court should affirm the judgment below
Respectfully submitted
GRACE CHUNG BECKER Acting Assistant Attorney General Civil Rights Division
DIANA K FLYNN DIRK C PHILLIPS Attorneys US Department of Justice Civil Rights Divisions Appellate Section Ben Franklin Station PO Box 14403 Washington DC 20044-4403 (202) 305-4876
CERTIFICATE OF COMPLIANCE
Pursuant to Federal Rule of Appellate Procedure 32(a)(7)(B) I hereby
certify that this brief is proportionally spaced 14-point Times New Roman font
Per WordPerfect 12 software the brief contains 9022 words excluding those
parts exempted by Federal Rule of Appellate Procedure 32(a)(7)(B)(iii)
DIRK C PHILLIPS Attorney
DATED June 18 2008
CERTIFICATE OF SERVICE
I hereby certify that on June 18 2008 a copy of the foregoing PROOF
BRIEF FOR THE UNITED STATES AS PLAINTIFF-APPELLEE was served by
first class mail postage prepaid on counsel of record at the following address
Joan E Morgan 2057 Orchard Lake Road Sylvan Lake MI 48320
DIRK C PHILLIPS Attorney
APPELLEErsquoS DESIGNATION OF APPENDIX CONTENTS
APPELLEErsquoS DESIGNATION OF APPENDIX CONTENTS
Appellee United States of America designates the following items to be
doctrine recognizes that a court cannot be asked by counsel to take a step in a case
and later be convicted of error because it has complied with such requestrdquo)
(citation and internal quotations omitted) ldquoThis doctrine is a branch of the
doctrine of waiver by which courts prevent a party from inducing an erroneous
ruling and later seeking to profit from the legal consequences by having the
verdict vacatedrdquo Barrow 118 F3d at 490-491
Some courts have held that the existence of invited error forecloses any
-20shy
review ndash even for plain error See eg United States v Baker 432 F3d 1189
1216 (11th Cir 2005) cert denied 547 US 1085 (2006) (ldquoIt is a cardinal rule of
appellate review that a party may not challenge as error a ruling or other trial
proceeding invited by that party Where invited error exists it precludes a
court from invoking the plain error rule and reversingrdquo) United States v Fulford
980 F2d 1110 1116 (7th Cir 1992) (ldquoIt is well-settled that where error is invited
not even plain error permits reversalrdquo) This Court however has recognized an
exception holding that ldquo[i]nvited error does not foreclose relief when the
interests of justice demand otherwiserdquo Barrow 118 F3d at 491 In this Circuit
the question ldquo[w]hether the circumstances of a particular case justify deviation
from the normal rule of waiver under this doctrine is left largely to the discretion
of the appellate courtrdquo Ibid Nevertheless ldquo[u]nder the invited error doctrine an
error introduced by the complaining party will cause reversal only in the most
exceptional situationrdquo United States v Tandon 111 F3d 482 489 (6th Cir
1997) (citation and internal quotations omitted)
C Any Error By The District Court In Permitting The Challenged Statements Was Invited Error And Therefore Should Not Be Reviewed By This Court
Here all of the challenged statements were elicited by defendantrsquos retained
trial counsel Br 15-24 This plainly constitutes invited error See United States
-21shy
v Parikh 858 F2d 688 695 (11th Cir 1988) (ldquoWe hold that the admission of out
of court statements by a government witness when responding to an inquiry by
defense counsel creates lsquoinvited errorrsquordquo) See also Baker 432 F3d at 1215-1216
(defendant ldquocannot now complain about the district courtrsquos errorrdquo where his
counsel ldquoinvited the errorrdquo by eliciting hearsay during cross-examination) United
States v Neal 78 F3d 901 904 (4th Cir 1996) (defendant ldquoinvited the errorrdquo and
it therefore ldquoprovides no basis for reversalrdquo where ldquo[a]t trial [defendant] did not
object to any of the statements he now challengesrdquo and ldquomost were elicited by his
own attorney from a government witness during cross-examinationrdquo) United
States v Reyes-Alvarado 963 F2d 1184 1187 (9th Cir 1992) cert denied 506
US 890 (1992) (finding invited error and refusing to reverse where ldquoappellantrsquos
counsel solicited the testimony which he now claims should have been excludedrdquo
and ldquodid not seek to strike this testimony at the time it was givenrdquo)9
As a threshold matter it bears noting that defendant fails to acknowledge
the existence of invited error and makes no argument as to why ldquothe interests of
justicerdquo Barrow 118 F3d at 491 require this Court to refrain from applying the
invited-error doctrine Accordingly defendant has waived any right to invoke the
9 This Court has reached a similar conclusion albeit in an unpublished decision See United States v Ali 38 Fed Appx 220 224 (6th Cir Mar 26 2002) (unpublished)
-22shy
interests-of-justice exception recognized by this Court See United States v
Samour 199 F3d 821 822 n1 (6th Cir 1999) (defendant ldquowaived his right to
argue the applicability of [favorable precedent] by failing to raise the issue on
appealrdquo)
Even if not waived however the interests of justice do not require this
Court to depart from the general rule that relief is foreclosed by invited error The
challenged statements were not the result of mere oversight or an isolated error by
defendantrsquos trial counsel Rather this appears to be a classic example of trial
strategy gone awry ndash not a situation in which failure to reverse contravenes the
interests of justice Indeed in this case the interests of justice weigh in favor of
invoking the invited-error doctrine as defendant presumably sought to benefit
from eliciting the challenged statements and thus should not now be heard to
argue their inadmissibility simply because his strategy failed See Reyes-
Alvarado 963 F2d at 1187 (ldquoFrom the transcript it appears that counsel thought
his pursuit of this line of questioning might benefit his client His tactics
backfired and his client was convicted A defendant cannot have it both
ways This was invited error and therefore not grounds for reversalrdquo)
Moreover the governmentrsquos trial counsel showed an abundance of caution
by specifically raising the issue and asking whether it should be discussed at
-23shy
sidebar10 This too weighs against a finding that the interests of justice require
reversal See Neal 78 F3d at 904 (ldquoAt one point the prosecutor even tried to
warn [defendantrsquos] attorney about pursuing a line of questioning relating to the
defendantrsquos prior conduct but [defendantrsquos] attorney persisted Under these
circumstances [defendant] cannot complain of error which he himself has
invitedrdquo) (citation and internal quotations omitted)
Simply put this case precisely illustrates both the purpose behind the
10 The following exchange occurred when defense counsel elicited statements from the witness regarding what Ricky Cotton told the government
[Defense Counsel] Just tell us what Ricky Cotton said and let me -shytell us what obviously is hearsay Irsquoll sit down Tell us what Ricky Cotton -shy
[Government Counsel] Your Honor should we have a sidebar on this
[The Court] What for
[Government Counsel] Irsquom not sure to figure out where we are
[Defense Counsel] This is where we are what Ricky Cotton said
[The Court] Are you objecting
[Government Counsel] If he doesnrsquot have any objection to the witness saying what Ricky Cotton said thatrsquos fine
[Defense Counsel] Letrsquos go Tell us what Ricky Cotton said
(418 Tr 173-174 Apx __)
-24shy
invited-error doctrine and the need to enforce it strictly Defendantrsquos appeal does
not challenge any action by the government Nor does he take issue with the
district courtrsquos instructions to the jury the sufficiency of the evidence to support
his conviction or the reasonableness of his sentence He also does not contend the
district court improperly ruled on any objection made by his trial counsel Rather
his arguments on appeal arise solely from the actions of his own retained trial
counsel Such claims must be rejected on their face as a contrary rule would
create perverse incentives for defendants to invite some small amount of error in
every trial so as to create grounds for appeal Accordingly this Court should
apply the invited-error doctrine and affirm the judgment below without reaching
the question whether plain error exists
II
THE DISTRICT COURT DID NOT COMMIT PLAIN ERROR IN FAILING TO SUA SPONTE PREVENT DEFENDANTrsquoS TRIAL COUNSEL FROM
ELICITING THE CHALLENGED TESTIMONY
As noted above in Section IA if this Court determines that the invited-
error doctrine does not apply it should review admission of the challenged
statements for plain error United States v Namey 364 F3d 843 846 (6th Cir
2004)
-25shy
A The Plain-Error Doctrine
ldquoThe plain error doctrine mandates reversal only in exceptional
circumstances and only where the error is so plain that the trial judge and
prosecutor were derelict in countenancing itrdquo United States v Gardiner 463 F3d
445 459 (6th Cir 2006) (quoting United States v Carroll 26 F3d 1380 1383
(6th Cir 1994)) It ldquois to be used sparingly only in exceptional circumstances
and solely to avoid a miscarriage of justicerdquo United States v Phillips 516 F3d
479 487 (6th Cir 2008) (quoting United States v Cox 957 F2d 264 267 (6th
Cir 1992))
ldquoTo show plain error a defendant must establish the following (1) error
(2) that is plain and (3) that affects substantial rights If these three conditions are
met an appellate court may then exercise its discretion to notice a forfeited error
but only if (4) the error seriously affects the fairness integrity or public reputation
of judicial proceedingsrdquo United States v Arnold 486 F3d 177 194 (6th Cir
2007) cert denied 128 S Ct 871 (2008) (citation and internal quotations
omitted) ldquoThe phrase lsquoaffects substantial rightsrsquo lsquomeans prejudicial It must have
affected the outcome of the district court proceedingsrsquordquo United States v
(ldquo[I]ssues adverted to in a perfunctory manner unaccompanied by some effort at
developed argumentation are deemed waivedrdquo) (quoting McPherson v Kelsey
125 F3d 989 995-996 (6th Cir 1997))
-27shy
C The Third And Fourth Prongs Of The Plain-Error Doctrine Are Not Satisfied In This Case Because Other Evidence Supporting Defendantrsquos Conviction Is Overwhelming
Even if the issue were fully briefed a finding of plain error would be
improper because defendant cannot satisfy the third or fourth prongs of the
inquiry The third prong of the plain-error inquiry ndash ie the requirement that the
error ldquoaffects substantial rightsrdquo Arnold 486 F3d at 194 by ldquoaffect[ing] the
outcome of the district court proceedingsrdquo Mooneyham 473 F3d at 288 ndash is not
satisfied where the evidence against the defendant is overwhelming See
Mooneyham 473 F3d at 288 United States v Hines 398 F3d 713 718-719 (6th
Cir) cert denied 545 US 1134 (2005)
Likewise the fourth prong of the inquiry ndash ie the requirement that the
error be said to have ldquoseriously affect[ed] the fairness integrity or public
reputation of judicial proceedingsrdquo Arnold 486 F3d at 194 ndash also is not met when
other evidence is ldquooverwhelmingrdquo and ldquoessentially uncontrovertedrdquo See United
States v Cotton 535 US 625 632-633 (2002) Johnson v United States 520
US 461 469-470 (1997) Hines 398 F3d at 718-719 Indeed as both the
Supreme Court and this Court have recognized with regard to the fourth prong of
the inquiry in some cases ldquoit would be the reversal of a conviction which
would have th[e] effectrdquo of ldquoseriously affect[ing] the fairness integrity or public
-28shy
reputation of judicial proceedingsrdquo Johnson 520 US at 470 (internal quotations
omitted) (emphasis added) see also United States v McGhee 119 F3d 422 424shy
425 (6th Cir 1997) This is so because ldquo[r]eversal for error regardless of its effect
on the judgment encourages litigants to abuse the judicial process and bestirs the
public to ridicule itrdquo Johnson 520 US at 470 (citation and internal quotations
omitted) see also McGhee 119 F3d at 424-425
In view of the foregoing courts often cite the presence of overwhelming
evidence as the basis for concluding that a defendant has failed to meet both the
third and fourth prongs of the plain-error inquiry See Hines 398 F3d at 718-719
United States v Dedhia 134 F3d 802 809 (6th Cir) cert denied 523 US 1145
(1998) see also United States v Birk 453 F3d 893 898 (7th Cir 2006) United
States v Taylor 284 F3d 95 102 (1st Cir) cert denied 536 US 933 (2002)
This Court should follow that approach here as there is overwhelming evidence ndash
separate and apart from the challenged statements ndash to support defendantrsquos
conviction Specifically as explained more fully below testimony at trial
established that defendant (1) spoke openly to others during the weeks leading up
to the fire regarding his desire to force the Dosters from the neighborhood (2) was
the one who set the fire (3) confided to a friend afterward that he both set the fire
and performed the lawn job with the intent to drive the Dosters away because of
-29shy
their race and (4) told conflicting stories to the FBI during the course of its
investigation one of which included an admission that he was at least indirectly
involved in setting the fire
1 Defendantrsquos Statements Prior To The Fire
Two witnesses offered detailed accounts of conversations they had with
defendant prior to the date of the fire During these conversations defendant
expressed his desire to drive the Dosters from their home
Guy Wurts testified that in mid-July 2002 Defendant said something to the
effect of ldquoI got to get rid of these niggers Irsquoll find something to do I donrsquot know
what I got to get these niggers out [of] the neighborhoodrdquo (Wurts 417 Tr 208shy
209 Apx __) Wurts testified that defendant looked in the Dostersrsquo direction
when he made these comments and said the word ldquoniggerrdquo loud enough for the
Dosters ndash who were working in their yard at the time ndash to hear it (Wurts 417 Tr
202-203 209-210 Apx __) Wurts further testified that defendant ldquoseemed
seriousrdquo when he made these statements (Wurts 417 Tr 259 Apx __)
Debbie Daniely recounted similar statements by defendant Specifically
defendant told Daniely more than once that he was very upset about the Dosters
moving into the neighborhood saying something to the effect of ldquoniggers are
moving inrdquo and ldquo[w]e have to do something about itrdquo (Daniely 418 Tr 22-25
-30shy
Apx __) Defendant later admitted to the FBI that he made such a statement to
ldquo[t]his Court has lsquoroutinely concluded that such claims are best brought by a
defendant in a post-conviction proceeding under 28 USC sect 2255 so that the
-37shy
parties can develop an adequate record on the issuersquordquo Martinez 430 F3d at 338
(quoting United States v Brown 332 F3d 363 368 (6th Cir 2003)) ldquoThere is
however lsquoa narrow exceptionrsquo to this rule lsquowhen the existing record is adequate to
assess properly the merits of the claimrsquordquo United States v Hynes 467 F3d 951
969 (6th Cir 2006) (quoting United States v Franklin 415 F3d 537 555-556
(6th Cir 2005)) See also United States v Winkle 477 F3d 407 421 (6th Cir
2007) (ldquoThis Court typically will not review a claim of ineffective assistance on
direct appeal except in rare cases where the error is apparent from the existing
recordrdquo) (quoting United States v Lopez-Medina 461 F3d 724 737 (6th Cir
2006))
No basis exists for departing from the general rule against addressing
ineffective-assistance claims on direct appeal As this Court has noted ldquo[t]he trial
process contains a myriad of complex decisions that for strategic reasons are
sound when made but may appear unsound with the benefit of hindsightrdquo United
States v Davis 306 F3d 398 422 (6th Cir 2002) cert denied 537 US 1208
(2003) (quoting United States v Fortson 194 F3d 730 736 (6th Cir 1999))
Moreover ldquo[j]udicial scrutiny of counselrsquos performance must be highly
deferentialrdquo and ldquoa court must indulge a strong presumption that counselrsquos
conduct falls within the wide range of reasonable professional assistancerdquo
-38shy
Strickland v Washington 466 US 668 689 (1984) Thus to establish ineffective
assistance ldquothe defendant must overcome the presumption that under the
circumstances the challenged action lsquomight be considered sound trial strategyrsquordquo
Ibid (quoting Michel v Louisiana 350 US 91 101 (1955))
Here the decision by defendantrsquos retained trial counsel to elicit the
challenged statements during cross-examination of a government witness
undeniably constitutes an element of trial strategy that cannot be analyzed at this
stage of the proceedings In particular because this is a direct appeal there is no
evidence in the record regarding defense counselrsquos trial strategy This Court
repeatedly has refused to review ineffective-assistance claims under such
circumstances See eg Lopez-Medina 461 F3d at 737 (ldquoAbsent evidence
specifically addressing counselrsquos performance we cannot determine whether his
actions reflected a reasoned trial strategyrdquo) United States v Sullivan 431 F3d
976 986 (6th Cir 2005) (ldquoWithout an explanation from trial counsel as to why he
failed to call the alibi witness we have no basis to determine whether this decision
was the result of inadequate representation or reasonable trial strategyrdquo) United
States v Allison 59 F3d 43 47 (6th Cir) cert denied 516 US 1002 (1995)
(ldquo[T]he sparse record before this court does not reveal whether the attorneyrsquos
actions could be considered sound trial strategyrdquo) United States v Snow 48 F3d
-39shy
198 199 (6th Cir 1995) (ldquoThe record before this court simply is insufficient to
show whether the alleged wrongful acts could be considered sound trial
strategyrdquo) Thus defendantrsquos ineffective-assistance claim must be examined ndash if
at all ndash in a separate collateral proceeding brought pursuant to Section 2255
C The Evidence That Is Available In The Record Does Not Support A Finding Of Ineffective Assistance Of Counsel
As stated above the governmentrsquos position is that the current record is not
sufficient to permit this Court to address defendantrsquos ineffective-assistance claim
in this direct appeal However if the Court disagrees ndash or desires in the interest of
judicial economy to address defendantrsquos claim on direct appeal ndash it should reject
the claim because defendant fails to satisfy the second prong of the ineffective-
assistance inquiry11
11 The government does not concede that the first prong of the Strickland inquiry is satisfied in this case Rather as noted above it is not possible to resolve the issue at this point because the record does not indicate precisely what defendantrsquos trial counsel was thinking what his strategy was or why he elected to pursue certain lines of questioning In the event that defendant elects to bring a collateral challenge pursuant to Section 2255 the government reserves the right to address the first prong of Strickland inquiry and to further develop its argument as to the second prong The governmentrsquos decision not to do so in this brief is based on the incomplete nature of the record with regard to the Strickland inquiry and should not be construed as a waiver or forfeiture of any arguments relating to defendantrsquos ineffective-assistance claim
-40shy
1 Standard For Establishing Ineffective Assistance Of Counsel
To prove ineffective assistance of counsel under Strickland a defendant
first ldquomust demonstrate that counselrsquos performance fell lsquobelow the objective
standard of reasonablenessrsquordquo Ivory v Jackson 509 F3d 284 294 (6th Cir 2007)
cert denied 128 S Ct 1897 (2008) (quoting Strickland 466 US at 688)) ldquoThe
defendant must then demonstrate that lsquothere is a reasonable probability that but
for counselrsquos unprofessional errors the result of the proceeding would have been
different A reasonable probability is a probability sufficient to undermine the
confidence in the outcomersquordquo Ibid (quoting Strickland 466 US at 694)
Significantly this Court ldquoneed not decide whether defense counsel
performed deficiently if disposing of an ineffective-assistance claim on the ground
of lack of sufficient prejudice would be easierrdquo Hynes 467 F3d at 970 See also
Ivory 509 F3d at 294 (ldquo[A] court need not determine whether counselrsquos
performance was deficient before examining the prejudice suffered by the
defendant as a result of the alleged deficiencies If it is easier to dispose of
an ineffectiveness claim on the ground of lack of sufficient prejudice which we
expect will often be so that course should be followedrdquo) (quoting Strickland 466
US at 697)
-41shy
2 Defendant Is Unable To Demonstrate Sufficient Prejudice And Therefore Cannot Satisfy The Second Prong Of The Inquiry
ldquoTo show prejudice [defendant] must demonstrate that lsquothere is a
reasonable probability that but for counselrsquos unprofessional errors the result of
the proceeding would have been differentrsquordquo Harrison v Motley 478 F3d 750
756 (6th Cir) cert denied 128 S Ct 444 (2007) (quoting Strickland 466 US at
694)) As set forth above in Section IIC the evidence of defendantrsquos guilt is
overwhelming and the result therefore would not have been different absent the
challenged statements This Court repeatedly has determined that the second
prong of the Strickland inquiry is not met under such circumstances See eg
Harrison 478 F3d at 757 (defendant ldquofailed to show that his attorneysrsquo alleged
conflict of interest resulted in prejudicerdquo where ldquothe evidence admitted against
[defendant] at trial was lsquooverwhelmingrsquordquo) Hicks v Collins 384 F3d 204 215
(6th Cir 2004) cert denied 545 US 1155 (2005) (holding that defendant cannot
satisfy the second prong of Strickland where ldquothere was overwhelming evidence of
[defendantrsquos] guiltrdquo) Campbell v United States 364 F3d 727 736 (6th Cir
2004) cert denied 543 US 1119 (2005) (ldquoGiven the overwhelming evidence
establishing [defendantrsquos] guilt we believe that he would not have been able to
show that but for his attorneyrsquos failure to object to the prosecutorrsquos alleged
-42shy
misconduct the result would have been differentrdquo)
Accordingly even if this Court determines that the record is sufficient for it
to address defendantrsquos ineffective-assistance claim on direct appeal it should
reject this claim based on his failure to satisfy the second prong of the Strickland
inquiry
CONCLUSION
For the foregoing reasons this Court should affirm the judgment below
Respectfully submitted
GRACE CHUNG BECKER Acting Assistant Attorney General Civil Rights Division
DIANA K FLYNN DIRK C PHILLIPS Attorneys US Department of Justice Civil Rights Divisions Appellate Section Ben Franklin Station PO Box 14403 Washington DC 20044-4403 (202) 305-4876
CERTIFICATE OF COMPLIANCE
Pursuant to Federal Rule of Appellate Procedure 32(a)(7)(B) I hereby
certify that this brief is proportionally spaced 14-point Times New Roman font
Per WordPerfect 12 software the brief contains 9022 words excluding those
parts exempted by Federal Rule of Appellate Procedure 32(a)(7)(B)(iii)
DIRK C PHILLIPS Attorney
DATED June 18 2008
CERTIFICATE OF SERVICE
I hereby certify that on June 18 2008 a copy of the foregoing PROOF
BRIEF FOR THE UNITED STATES AS PLAINTIFF-APPELLEE was served by
first class mail postage prepaid on counsel of record at the following address
Joan E Morgan 2057 Orchard Lake Road Sylvan Lake MI 48320
DIRK C PHILLIPS Attorney
APPELLEErsquoS DESIGNATION OF APPENDIX CONTENTS
APPELLEErsquoS DESIGNATION OF APPENDIX CONTENTS
Appellee United States of America designates the following items to be
doctrine recognizes that a court cannot be asked by counsel to take a step in a case
and later be convicted of error because it has complied with such requestrdquo)
(citation and internal quotations omitted) ldquoThis doctrine is a branch of the
doctrine of waiver by which courts prevent a party from inducing an erroneous
ruling and later seeking to profit from the legal consequences by having the
verdict vacatedrdquo Barrow 118 F3d at 490-491
Some courts have held that the existence of invited error forecloses any
-20shy
review ndash even for plain error See eg United States v Baker 432 F3d 1189
1216 (11th Cir 2005) cert denied 547 US 1085 (2006) (ldquoIt is a cardinal rule of
appellate review that a party may not challenge as error a ruling or other trial
proceeding invited by that party Where invited error exists it precludes a
court from invoking the plain error rule and reversingrdquo) United States v Fulford
980 F2d 1110 1116 (7th Cir 1992) (ldquoIt is well-settled that where error is invited
not even plain error permits reversalrdquo) This Court however has recognized an
exception holding that ldquo[i]nvited error does not foreclose relief when the
interests of justice demand otherwiserdquo Barrow 118 F3d at 491 In this Circuit
the question ldquo[w]hether the circumstances of a particular case justify deviation
from the normal rule of waiver under this doctrine is left largely to the discretion
of the appellate courtrdquo Ibid Nevertheless ldquo[u]nder the invited error doctrine an
error introduced by the complaining party will cause reversal only in the most
exceptional situationrdquo United States v Tandon 111 F3d 482 489 (6th Cir
1997) (citation and internal quotations omitted)
C Any Error By The District Court In Permitting The Challenged Statements Was Invited Error And Therefore Should Not Be Reviewed By This Court
Here all of the challenged statements were elicited by defendantrsquos retained
trial counsel Br 15-24 This plainly constitutes invited error See United States
-21shy
v Parikh 858 F2d 688 695 (11th Cir 1988) (ldquoWe hold that the admission of out
of court statements by a government witness when responding to an inquiry by
defense counsel creates lsquoinvited errorrsquordquo) See also Baker 432 F3d at 1215-1216
(defendant ldquocannot now complain about the district courtrsquos errorrdquo where his
counsel ldquoinvited the errorrdquo by eliciting hearsay during cross-examination) United
States v Neal 78 F3d 901 904 (4th Cir 1996) (defendant ldquoinvited the errorrdquo and
it therefore ldquoprovides no basis for reversalrdquo where ldquo[a]t trial [defendant] did not
object to any of the statements he now challengesrdquo and ldquomost were elicited by his
own attorney from a government witness during cross-examinationrdquo) United
States v Reyes-Alvarado 963 F2d 1184 1187 (9th Cir 1992) cert denied 506
US 890 (1992) (finding invited error and refusing to reverse where ldquoappellantrsquos
counsel solicited the testimony which he now claims should have been excludedrdquo
and ldquodid not seek to strike this testimony at the time it was givenrdquo)9
As a threshold matter it bears noting that defendant fails to acknowledge
the existence of invited error and makes no argument as to why ldquothe interests of
justicerdquo Barrow 118 F3d at 491 require this Court to refrain from applying the
invited-error doctrine Accordingly defendant has waived any right to invoke the
9 This Court has reached a similar conclusion albeit in an unpublished decision See United States v Ali 38 Fed Appx 220 224 (6th Cir Mar 26 2002) (unpublished)
-22shy
interests-of-justice exception recognized by this Court See United States v
Samour 199 F3d 821 822 n1 (6th Cir 1999) (defendant ldquowaived his right to
argue the applicability of [favorable precedent] by failing to raise the issue on
appealrdquo)
Even if not waived however the interests of justice do not require this
Court to depart from the general rule that relief is foreclosed by invited error The
challenged statements were not the result of mere oversight or an isolated error by
defendantrsquos trial counsel Rather this appears to be a classic example of trial
strategy gone awry ndash not a situation in which failure to reverse contravenes the
interests of justice Indeed in this case the interests of justice weigh in favor of
invoking the invited-error doctrine as defendant presumably sought to benefit
from eliciting the challenged statements and thus should not now be heard to
argue their inadmissibility simply because his strategy failed See Reyes-
Alvarado 963 F2d at 1187 (ldquoFrom the transcript it appears that counsel thought
his pursuit of this line of questioning might benefit his client His tactics
backfired and his client was convicted A defendant cannot have it both
ways This was invited error and therefore not grounds for reversalrdquo)
Moreover the governmentrsquos trial counsel showed an abundance of caution
by specifically raising the issue and asking whether it should be discussed at
-23shy
sidebar10 This too weighs against a finding that the interests of justice require
reversal See Neal 78 F3d at 904 (ldquoAt one point the prosecutor even tried to
warn [defendantrsquos] attorney about pursuing a line of questioning relating to the
defendantrsquos prior conduct but [defendantrsquos] attorney persisted Under these
circumstances [defendant] cannot complain of error which he himself has
invitedrdquo) (citation and internal quotations omitted)
Simply put this case precisely illustrates both the purpose behind the
10 The following exchange occurred when defense counsel elicited statements from the witness regarding what Ricky Cotton told the government
[Defense Counsel] Just tell us what Ricky Cotton said and let me -shytell us what obviously is hearsay Irsquoll sit down Tell us what Ricky Cotton -shy
[Government Counsel] Your Honor should we have a sidebar on this
[The Court] What for
[Government Counsel] Irsquom not sure to figure out where we are
[Defense Counsel] This is where we are what Ricky Cotton said
[The Court] Are you objecting
[Government Counsel] If he doesnrsquot have any objection to the witness saying what Ricky Cotton said thatrsquos fine
[Defense Counsel] Letrsquos go Tell us what Ricky Cotton said
(418 Tr 173-174 Apx __)
-24shy
invited-error doctrine and the need to enforce it strictly Defendantrsquos appeal does
not challenge any action by the government Nor does he take issue with the
district courtrsquos instructions to the jury the sufficiency of the evidence to support
his conviction or the reasonableness of his sentence He also does not contend the
district court improperly ruled on any objection made by his trial counsel Rather
his arguments on appeal arise solely from the actions of his own retained trial
counsel Such claims must be rejected on their face as a contrary rule would
create perverse incentives for defendants to invite some small amount of error in
every trial so as to create grounds for appeal Accordingly this Court should
apply the invited-error doctrine and affirm the judgment below without reaching
the question whether plain error exists
II
THE DISTRICT COURT DID NOT COMMIT PLAIN ERROR IN FAILING TO SUA SPONTE PREVENT DEFENDANTrsquoS TRIAL COUNSEL FROM
ELICITING THE CHALLENGED TESTIMONY
As noted above in Section IA if this Court determines that the invited-
error doctrine does not apply it should review admission of the challenged
statements for plain error United States v Namey 364 F3d 843 846 (6th Cir
2004)
-25shy
A The Plain-Error Doctrine
ldquoThe plain error doctrine mandates reversal only in exceptional
circumstances and only where the error is so plain that the trial judge and
prosecutor were derelict in countenancing itrdquo United States v Gardiner 463 F3d
445 459 (6th Cir 2006) (quoting United States v Carroll 26 F3d 1380 1383
(6th Cir 1994)) It ldquois to be used sparingly only in exceptional circumstances
and solely to avoid a miscarriage of justicerdquo United States v Phillips 516 F3d
479 487 (6th Cir 2008) (quoting United States v Cox 957 F2d 264 267 (6th
Cir 1992))
ldquoTo show plain error a defendant must establish the following (1) error
(2) that is plain and (3) that affects substantial rights If these three conditions are
met an appellate court may then exercise its discretion to notice a forfeited error
but only if (4) the error seriously affects the fairness integrity or public reputation
of judicial proceedingsrdquo United States v Arnold 486 F3d 177 194 (6th Cir
2007) cert denied 128 S Ct 871 (2008) (citation and internal quotations
omitted) ldquoThe phrase lsquoaffects substantial rightsrsquo lsquomeans prejudicial It must have
affected the outcome of the district court proceedingsrsquordquo United States v
(ldquo[I]ssues adverted to in a perfunctory manner unaccompanied by some effort at
developed argumentation are deemed waivedrdquo) (quoting McPherson v Kelsey
125 F3d 989 995-996 (6th Cir 1997))
-27shy
C The Third And Fourth Prongs Of The Plain-Error Doctrine Are Not Satisfied In This Case Because Other Evidence Supporting Defendantrsquos Conviction Is Overwhelming
Even if the issue were fully briefed a finding of plain error would be
improper because defendant cannot satisfy the third or fourth prongs of the
inquiry The third prong of the plain-error inquiry ndash ie the requirement that the
error ldquoaffects substantial rightsrdquo Arnold 486 F3d at 194 by ldquoaffect[ing] the
outcome of the district court proceedingsrdquo Mooneyham 473 F3d at 288 ndash is not
satisfied where the evidence against the defendant is overwhelming See
Mooneyham 473 F3d at 288 United States v Hines 398 F3d 713 718-719 (6th
Cir) cert denied 545 US 1134 (2005)
Likewise the fourth prong of the inquiry ndash ie the requirement that the
error be said to have ldquoseriously affect[ed] the fairness integrity or public
reputation of judicial proceedingsrdquo Arnold 486 F3d at 194 ndash also is not met when
other evidence is ldquooverwhelmingrdquo and ldquoessentially uncontrovertedrdquo See United
States v Cotton 535 US 625 632-633 (2002) Johnson v United States 520
US 461 469-470 (1997) Hines 398 F3d at 718-719 Indeed as both the
Supreme Court and this Court have recognized with regard to the fourth prong of
the inquiry in some cases ldquoit would be the reversal of a conviction which
would have th[e] effectrdquo of ldquoseriously affect[ing] the fairness integrity or public
-28shy
reputation of judicial proceedingsrdquo Johnson 520 US at 470 (internal quotations
omitted) (emphasis added) see also United States v McGhee 119 F3d 422 424shy
425 (6th Cir 1997) This is so because ldquo[r]eversal for error regardless of its effect
on the judgment encourages litigants to abuse the judicial process and bestirs the
public to ridicule itrdquo Johnson 520 US at 470 (citation and internal quotations
omitted) see also McGhee 119 F3d at 424-425
In view of the foregoing courts often cite the presence of overwhelming
evidence as the basis for concluding that a defendant has failed to meet both the
third and fourth prongs of the plain-error inquiry See Hines 398 F3d at 718-719
United States v Dedhia 134 F3d 802 809 (6th Cir) cert denied 523 US 1145
(1998) see also United States v Birk 453 F3d 893 898 (7th Cir 2006) United
States v Taylor 284 F3d 95 102 (1st Cir) cert denied 536 US 933 (2002)
This Court should follow that approach here as there is overwhelming evidence ndash
separate and apart from the challenged statements ndash to support defendantrsquos
conviction Specifically as explained more fully below testimony at trial
established that defendant (1) spoke openly to others during the weeks leading up
to the fire regarding his desire to force the Dosters from the neighborhood (2) was
the one who set the fire (3) confided to a friend afterward that he both set the fire
and performed the lawn job with the intent to drive the Dosters away because of
-29shy
their race and (4) told conflicting stories to the FBI during the course of its
investigation one of which included an admission that he was at least indirectly
involved in setting the fire
1 Defendantrsquos Statements Prior To The Fire
Two witnesses offered detailed accounts of conversations they had with
defendant prior to the date of the fire During these conversations defendant
expressed his desire to drive the Dosters from their home
Guy Wurts testified that in mid-July 2002 Defendant said something to the
effect of ldquoI got to get rid of these niggers Irsquoll find something to do I donrsquot know
what I got to get these niggers out [of] the neighborhoodrdquo (Wurts 417 Tr 208shy
209 Apx __) Wurts testified that defendant looked in the Dostersrsquo direction
when he made these comments and said the word ldquoniggerrdquo loud enough for the
Dosters ndash who were working in their yard at the time ndash to hear it (Wurts 417 Tr
202-203 209-210 Apx __) Wurts further testified that defendant ldquoseemed
seriousrdquo when he made these statements (Wurts 417 Tr 259 Apx __)
Debbie Daniely recounted similar statements by defendant Specifically
defendant told Daniely more than once that he was very upset about the Dosters
moving into the neighborhood saying something to the effect of ldquoniggers are
moving inrdquo and ldquo[w]e have to do something about itrdquo (Daniely 418 Tr 22-25
-30shy
Apx __) Defendant later admitted to the FBI that he made such a statement to
ldquo[t]his Court has lsquoroutinely concluded that such claims are best brought by a
defendant in a post-conviction proceeding under 28 USC sect 2255 so that the
-37shy
parties can develop an adequate record on the issuersquordquo Martinez 430 F3d at 338
(quoting United States v Brown 332 F3d 363 368 (6th Cir 2003)) ldquoThere is
however lsquoa narrow exceptionrsquo to this rule lsquowhen the existing record is adequate to
assess properly the merits of the claimrsquordquo United States v Hynes 467 F3d 951
969 (6th Cir 2006) (quoting United States v Franklin 415 F3d 537 555-556
(6th Cir 2005)) See also United States v Winkle 477 F3d 407 421 (6th Cir
2007) (ldquoThis Court typically will not review a claim of ineffective assistance on
direct appeal except in rare cases where the error is apparent from the existing
recordrdquo) (quoting United States v Lopez-Medina 461 F3d 724 737 (6th Cir
2006))
No basis exists for departing from the general rule against addressing
ineffective-assistance claims on direct appeal As this Court has noted ldquo[t]he trial
process contains a myriad of complex decisions that for strategic reasons are
sound when made but may appear unsound with the benefit of hindsightrdquo United
States v Davis 306 F3d 398 422 (6th Cir 2002) cert denied 537 US 1208
(2003) (quoting United States v Fortson 194 F3d 730 736 (6th Cir 1999))
Moreover ldquo[j]udicial scrutiny of counselrsquos performance must be highly
deferentialrdquo and ldquoa court must indulge a strong presumption that counselrsquos
conduct falls within the wide range of reasonable professional assistancerdquo
-38shy
Strickland v Washington 466 US 668 689 (1984) Thus to establish ineffective
assistance ldquothe defendant must overcome the presumption that under the
circumstances the challenged action lsquomight be considered sound trial strategyrsquordquo
Ibid (quoting Michel v Louisiana 350 US 91 101 (1955))
Here the decision by defendantrsquos retained trial counsel to elicit the
challenged statements during cross-examination of a government witness
undeniably constitutes an element of trial strategy that cannot be analyzed at this
stage of the proceedings In particular because this is a direct appeal there is no
evidence in the record regarding defense counselrsquos trial strategy This Court
repeatedly has refused to review ineffective-assistance claims under such
circumstances See eg Lopez-Medina 461 F3d at 737 (ldquoAbsent evidence
specifically addressing counselrsquos performance we cannot determine whether his
actions reflected a reasoned trial strategyrdquo) United States v Sullivan 431 F3d
976 986 (6th Cir 2005) (ldquoWithout an explanation from trial counsel as to why he
failed to call the alibi witness we have no basis to determine whether this decision
was the result of inadequate representation or reasonable trial strategyrdquo) United
States v Allison 59 F3d 43 47 (6th Cir) cert denied 516 US 1002 (1995)
(ldquo[T]he sparse record before this court does not reveal whether the attorneyrsquos
actions could be considered sound trial strategyrdquo) United States v Snow 48 F3d
-39shy
198 199 (6th Cir 1995) (ldquoThe record before this court simply is insufficient to
show whether the alleged wrongful acts could be considered sound trial
strategyrdquo) Thus defendantrsquos ineffective-assistance claim must be examined ndash if
at all ndash in a separate collateral proceeding brought pursuant to Section 2255
C The Evidence That Is Available In The Record Does Not Support A Finding Of Ineffective Assistance Of Counsel
As stated above the governmentrsquos position is that the current record is not
sufficient to permit this Court to address defendantrsquos ineffective-assistance claim
in this direct appeal However if the Court disagrees ndash or desires in the interest of
judicial economy to address defendantrsquos claim on direct appeal ndash it should reject
the claim because defendant fails to satisfy the second prong of the ineffective-
assistance inquiry11
11 The government does not concede that the first prong of the Strickland inquiry is satisfied in this case Rather as noted above it is not possible to resolve the issue at this point because the record does not indicate precisely what defendantrsquos trial counsel was thinking what his strategy was or why he elected to pursue certain lines of questioning In the event that defendant elects to bring a collateral challenge pursuant to Section 2255 the government reserves the right to address the first prong of Strickland inquiry and to further develop its argument as to the second prong The governmentrsquos decision not to do so in this brief is based on the incomplete nature of the record with regard to the Strickland inquiry and should not be construed as a waiver or forfeiture of any arguments relating to defendantrsquos ineffective-assistance claim
-40shy
1 Standard For Establishing Ineffective Assistance Of Counsel
To prove ineffective assistance of counsel under Strickland a defendant
first ldquomust demonstrate that counselrsquos performance fell lsquobelow the objective
standard of reasonablenessrsquordquo Ivory v Jackson 509 F3d 284 294 (6th Cir 2007)
cert denied 128 S Ct 1897 (2008) (quoting Strickland 466 US at 688)) ldquoThe
defendant must then demonstrate that lsquothere is a reasonable probability that but
for counselrsquos unprofessional errors the result of the proceeding would have been
different A reasonable probability is a probability sufficient to undermine the
confidence in the outcomersquordquo Ibid (quoting Strickland 466 US at 694)
Significantly this Court ldquoneed not decide whether defense counsel
performed deficiently if disposing of an ineffective-assistance claim on the ground
of lack of sufficient prejudice would be easierrdquo Hynes 467 F3d at 970 See also
Ivory 509 F3d at 294 (ldquo[A] court need not determine whether counselrsquos
performance was deficient before examining the prejudice suffered by the
defendant as a result of the alleged deficiencies If it is easier to dispose of
an ineffectiveness claim on the ground of lack of sufficient prejudice which we
expect will often be so that course should be followedrdquo) (quoting Strickland 466
US at 697)
-41shy
2 Defendant Is Unable To Demonstrate Sufficient Prejudice And Therefore Cannot Satisfy The Second Prong Of The Inquiry
ldquoTo show prejudice [defendant] must demonstrate that lsquothere is a
reasonable probability that but for counselrsquos unprofessional errors the result of
the proceeding would have been differentrsquordquo Harrison v Motley 478 F3d 750
756 (6th Cir) cert denied 128 S Ct 444 (2007) (quoting Strickland 466 US at
694)) As set forth above in Section IIC the evidence of defendantrsquos guilt is
overwhelming and the result therefore would not have been different absent the
challenged statements This Court repeatedly has determined that the second
prong of the Strickland inquiry is not met under such circumstances See eg
Harrison 478 F3d at 757 (defendant ldquofailed to show that his attorneysrsquo alleged
conflict of interest resulted in prejudicerdquo where ldquothe evidence admitted against
[defendant] at trial was lsquooverwhelmingrsquordquo) Hicks v Collins 384 F3d 204 215
(6th Cir 2004) cert denied 545 US 1155 (2005) (holding that defendant cannot
satisfy the second prong of Strickland where ldquothere was overwhelming evidence of
[defendantrsquos] guiltrdquo) Campbell v United States 364 F3d 727 736 (6th Cir
2004) cert denied 543 US 1119 (2005) (ldquoGiven the overwhelming evidence
establishing [defendantrsquos] guilt we believe that he would not have been able to
show that but for his attorneyrsquos failure to object to the prosecutorrsquos alleged
-42shy
misconduct the result would have been differentrdquo)
Accordingly even if this Court determines that the record is sufficient for it
to address defendantrsquos ineffective-assistance claim on direct appeal it should
reject this claim based on his failure to satisfy the second prong of the Strickland
inquiry
CONCLUSION
For the foregoing reasons this Court should affirm the judgment below
Respectfully submitted
GRACE CHUNG BECKER Acting Assistant Attorney General Civil Rights Division
DIANA K FLYNN DIRK C PHILLIPS Attorneys US Department of Justice Civil Rights Divisions Appellate Section Ben Franklin Station PO Box 14403 Washington DC 20044-4403 (202) 305-4876
CERTIFICATE OF COMPLIANCE
Pursuant to Federal Rule of Appellate Procedure 32(a)(7)(B) I hereby
certify that this brief is proportionally spaced 14-point Times New Roman font
Per WordPerfect 12 software the brief contains 9022 words excluding those
parts exempted by Federal Rule of Appellate Procedure 32(a)(7)(B)(iii)
DIRK C PHILLIPS Attorney
DATED June 18 2008
CERTIFICATE OF SERVICE
I hereby certify that on June 18 2008 a copy of the foregoing PROOF
BRIEF FOR THE UNITED STATES AS PLAINTIFF-APPELLEE was served by
first class mail postage prepaid on counsel of record at the following address
Joan E Morgan 2057 Orchard Lake Road Sylvan Lake MI 48320
DIRK C PHILLIPS Attorney
APPELLEErsquoS DESIGNATION OF APPENDIX CONTENTS
APPELLEErsquoS DESIGNATION OF APPENDIX CONTENTS
Appellee United States of America designates the following items to be
doctrine recognizes that a court cannot be asked by counsel to take a step in a case
and later be convicted of error because it has complied with such requestrdquo)
(citation and internal quotations omitted) ldquoThis doctrine is a branch of the
doctrine of waiver by which courts prevent a party from inducing an erroneous
ruling and later seeking to profit from the legal consequences by having the
verdict vacatedrdquo Barrow 118 F3d at 490-491
Some courts have held that the existence of invited error forecloses any
-20shy
review ndash even for plain error See eg United States v Baker 432 F3d 1189
1216 (11th Cir 2005) cert denied 547 US 1085 (2006) (ldquoIt is a cardinal rule of
appellate review that a party may not challenge as error a ruling or other trial
proceeding invited by that party Where invited error exists it precludes a
court from invoking the plain error rule and reversingrdquo) United States v Fulford
980 F2d 1110 1116 (7th Cir 1992) (ldquoIt is well-settled that where error is invited
not even plain error permits reversalrdquo) This Court however has recognized an
exception holding that ldquo[i]nvited error does not foreclose relief when the
interests of justice demand otherwiserdquo Barrow 118 F3d at 491 In this Circuit
the question ldquo[w]hether the circumstances of a particular case justify deviation
from the normal rule of waiver under this doctrine is left largely to the discretion
of the appellate courtrdquo Ibid Nevertheless ldquo[u]nder the invited error doctrine an
error introduced by the complaining party will cause reversal only in the most
exceptional situationrdquo United States v Tandon 111 F3d 482 489 (6th Cir
1997) (citation and internal quotations omitted)
C Any Error By The District Court In Permitting The Challenged Statements Was Invited Error And Therefore Should Not Be Reviewed By This Court
Here all of the challenged statements were elicited by defendantrsquos retained
trial counsel Br 15-24 This plainly constitutes invited error See United States
-21shy
v Parikh 858 F2d 688 695 (11th Cir 1988) (ldquoWe hold that the admission of out
of court statements by a government witness when responding to an inquiry by
defense counsel creates lsquoinvited errorrsquordquo) See also Baker 432 F3d at 1215-1216
(defendant ldquocannot now complain about the district courtrsquos errorrdquo where his
counsel ldquoinvited the errorrdquo by eliciting hearsay during cross-examination) United
States v Neal 78 F3d 901 904 (4th Cir 1996) (defendant ldquoinvited the errorrdquo and
it therefore ldquoprovides no basis for reversalrdquo where ldquo[a]t trial [defendant] did not
object to any of the statements he now challengesrdquo and ldquomost were elicited by his
own attorney from a government witness during cross-examinationrdquo) United
States v Reyes-Alvarado 963 F2d 1184 1187 (9th Cir 1992) cert denied 506
US 890 (1992) (finding invited error and refusing to reverse where ldquoappellantrsquos
counsel solicited the testimony which he now claims should have been excludedrdquo
and ldquodid not seek to strike this testimony at the time it was givenrdquo)9
As a threshold matter it bears noting that defendant fails to acknowledge
the existence of invited error and makes no argument as to why ldquothe interests of
justicerdquo Barrow 118 F3d at 491 require this Court to refrain from applying the
invited-error doctrine Accordingly defendant has waived any right to invoke the
9 This Court has reached a similar conclusion albeit in an unpublished decision See United States v Ali 38 Fed Appx 220 224 (6th Cir Mar 26 2002) (unpublished)
-22shy
interests-of-justice exception recognized by this Court See United States v
Samour 199 F3d 821 822 n1 (6th Cir 1999) (defendant ldquowaived his right to
argue the applicability of [favorable precedent] by failing to raise the issue on
appealrdquo)
Even if not waived however the interests of justice do not require this
Court to depart from the general rule that relief is foreclosed by invited error The
challenged statements were not the result of mere oversight or an isolated error by
defendantrsquos trial counsel Rather this appears to be a classic example of trial
strategy gone awry ndash not a situation in which failure to reverse contravenes the
interests of justice Indeed in this case the interests of justice weigh in favor of
invoking the invited-error doctrine as defendant presumably sought to benefit
from eliciting the challenged statements and thus should not now be heard to
argue their inadmissibility simply because his strategy failed See Reyes-
Alvarado 963 F2d at 1187 (ldquoFrom the transcript it appears that counsel thought
his pursuit of this line of questioning might benefit his client His tactics
backfired and his client was convicted A defendant cannot have it both
ways This was invited error and therefore not grounds for reversalrdquo)
Moreover the governmentrsquos trial counsel showed an abundance of caution
by specifically raising the issue and asking whether it should be discussed at
-23shy
sidebar10 This too weighs against a finding that the interests of justice require
reversal See Neal 78 F3d at 904 (ldquoAt one point the prosecutor even tried to
warn [defendantrsquos] attorney about pursuing a line of questioning relating to the
defendantrsquos prior conduct but [defendantrsquos] attorney persisted Under these
circumstances [defendant] cannot complain of error which he himself has
invitedrdquo) (citation and internal quotations omitted)
Simply put this case precisely illustrates both the purpose behind the
10 The following exchange occurred when defense counsel elicited statements from the witness regarding what Ricky Cotton told the government
[Defense Counsel] Just tell us what Ricky Cotton said and let me -shytell us what obviously is hearsay Irsquoll sit down Tell us what Ricky Cotton -shy
[Government Counsel] Your Honor should we have a sidebar on this
[The Court] What for
[Government Counsel] Irsquom not sure to figure out where we are
[Defense Counsel] This is where we are what Ricky Cotton said
[The Court] Are you objecting
[Government Counsel] If he doesnrsquot have any objection to the witness saying what Ricky Cotton said thatrsquos fine
[Defense Counsel] Letrsquos go Tell us what Ricky Cotton said
(418 Tr 173-174 Apx __)
-24shy
invited-error doctrine and the need to enforce it strictly Defendantrsquos appeal does
not challenge any action by the government Nor does he take issue with the
district courtrsquos instructions to the jury the sufficiency of the evidence to support
his conviction or the reasonableness of his sentence He also does not contend the
district court improperly ruled on any objection made by his trial counsel Rather
his arguments on appeal arise solely from the actions of his own retained trial
counsel Such claims must be rejected on their face as a contrary rule would
create perverse incentives for defendants to invite some small amount of error in
every trial so as to create grounds for appeal Accordingly this Court should
apply the invited-error doctrine and affirm the judgment below without reaching
the question whether plain error exists
II
THE DISTRICT COURT DID NOT COMMIT PLAIN ERROR IN FAILING TO SUA SPONTE PREVENT DEFENDANTrsquoS TRIAL COUNSEL FROM
ELICITING THE CHALLENGED TESTIMONY
As noted above in Section IA if this Court determines that the invited-
error doctrine does not apply it should review admission of the challenged
statements for plain error United States v Namey 364 F3d 843 846 (6th Cir
2004)
-25shy
A The Plain-Error Doctrine
ldquoThe plain error doctrine mandates reversal only in exceptional
circumstances and only where the error is so plain that the trial judge and
prosecutor were derelict in countenancing itrdquo United States v Gardiner 463 F3d
445 459 (6th Cir 2006) (quoting United States v Carroll 26 F3d 1380 1383
(6th Cir 1994)) It ldquois to be used sparingly only in exceptional circumstances
and solely to avoid a miscarriage of justicerdquo United States v Phillips 516 F3d
479 487 (6th Cir 2008) (quoting United States v Cox 957 F2d 264 267 (6th
Cir 1992))
ldquoTo show plain error a defendant must establish the following (1) error
(2) that is plain and (3) that affects substantial rights If these three conditions are
met an appellate court may then exercise its discretion to notice a forfeited error
but only if (4) the error seriously affects the fairness integrity or public reputation
of judicial proceedingsrdquo United States v Arnold 486 F3d 177 194 (6th Cir
2007) cert denied 128 S Ct 871 (2008) (citation and internal quotations
omitted) ldquoThe phrase lsquoaffects substantial rightsrsquo lsquomeans prejudicial It must have
affected the outcome of the district court proceedingsrsquordquo United States v
(ldquo[I]ssues adverted to in a perfunctory manner unaccompanied by some effort at
developed argumentation are deemed waivedrdquo) (quoting McPherson v Kelsey
125 F3d 989 995-996 (6th Cir 1997))
-27shy
C The Third And Fourth Prongs Of The Plain-Error Doctrine Are Not Satisfied In This Case Because Other Evidence Supporting Defendantrsquos Conviction Is Overwhelming
Even if the issue were fully briefed a finding of plain error would be
improper because defendant cannot satisfy the third or fourth prongs of the
inquiry The third prong of the plain-error inquiry ndash ie the requirement that the
error ldquoaffects substantial rightsrdquo Arnold 486 F3d at 194 by ldquoaffect[ing] the
outcome of the district court proceedingsrdquo Mooneyham 473 F3d at 288 ndash is not
satisfied where the evidence against the defendant is overwhelming See
Mooneyham 473 F3d at 288 United States v Hines 398 F3d 713 718-719 (6th
Cir) cert denied 545 US 1134 (2005)
Likewise the fourth prong of the inquiry ndash ie the requirement that the
error be said to have ldquoseriously affect[ed] the fairness integrity or public
reputation of judicial proceedingsrdquo Arnold 486 F3d at 194 ndash also is not met when
other evidence is ldquooverwhelmingrdquo and ldquoessentially uncontrovertedrdquo See United
States v Cotton 535 US 625 632-633 (2002) Johnson v United States 520
US 461 469-470 (1997) Hines 398 F3d at 718-719 Indeed as both the
Supreme Court and this Court have recognized with regard to the fourth prong of
the inquiry in some cases ldquoit would be the reversal of a conviction which
would have th[e] effectrdquo of ldquoseriously affect[ing] the fairness integrity or public
-28shy
reputation of judicial proceedingsrdquo Johnson 520 US at 470 (internal quotations
omitted) (emphasis added) see also United States v McGhee 119 F3d 422 424shy
425 (6th Cir 1997) This is so because ldquo[r]eversal for error regardless of its effect
on the judgment encourages litigants to abuse the judicial process and bestirs the
public to ridicule itrdquo Johnson 520 US at 470 (citation and internal quotations
omitted) see also McGhee 119 F3d at 424-425
In view of the foregoing courts often cite the presence of overwhelming
evidence as the basis for concluding that a defendant has failed to meet both the
third and fourth prongs of the plain-error inquiry See Hines 398 F3d at 718-719
United States v Dedhia 134 F3d 802 809 (6th Cir) cert denied 523 US 1145
(1998) see also United States v Birk 453 F3d 893 898 (7th Cir 2006) United
States v Taylor 284 F3d 95 102 (1st Cir) cert denied 536 US 933 (2002)
This Court should follow that approach here as there is overwhelming evidence ndash
separate and apart from the challenged statements ndash to support defendantrsquos
conviction Specifically as explained more fully below testimony at trial
established that defendant (1) spoke openly to others during the weeks leading up
to the fire regarding his desire to force the Dosters from the neighborhood (2) was
the one who set the fire (3) confided to a friend afterward that he both set the fire
and performed the lawn job with the intent to drive the Dosters away because of
-29shy
their race and (4) told conflicting stories to the FBI during the course of its
investigation one of which included an admission that he was at least indirectly
involved in setting the fire
1 Defendantrsquos Statements Prior To The Fire
Two witnesses offered detailed accounts of conversations they had with
defendant prior to the date of the fire During these conversations defendant
expressed his desire to drive the Dosters from their home
Guy Wurts testified that in mid-July 2002 Defendant said something to the
effect of ldquoI got to get rid of these niggers Irsquoll find something to do I donrsquot know
what I got to get these niggers out [of] the neighborhoodrdquo (Wurts 417 Tr 208shy
209 Apx __) Wurts testified that defendant looked in the Dostersrsquo direction
when he made these comments and said the word ldquoniggerrdquo loud enough for the
Dosters ndash who were working in their yard at the time ndash to hear it (Wurts 417 Tr
202-203 209-210 Apx __) Wurts further testified that defendant ldquoseemed
seriousrdquo when he made these statements (Wurts 417 Tr 259 Apx __)
Debbie Daniely recounted similar statements by defendant Specifically
defendant told Daniely more than once that he was very upset about the Dosters
moving into the neighborhood saying something to the effect of ldquoniggers are
moving inrdquo and ldquo[w]e have to do something about itrdquo (Daniely 418 Tr 22-25
-30shy
Apx __) Defendant later admitted to the FBI that he made such a statement to
ldquo[t]his Court has lsquoroutinely concluded that such claims are best brought by a
defendant in a post-conviction proceeding under 28 USC sect 2255 so that the
-37shy
parties can develop an adequate record on the issuersquordquo Martinez 430 F3d at 338
(quoting United States v Brown 332 F3d 363 368 (6th Cir 2003)) ldquoThere is
however lsquoa narrow exceptionrsquo to this rule lsquowhen the existing record is adequate to
assess properly the merits of the claimrsquordquo United States v Hynes 467 F3d 951
969 (6th Cir 2006) (quoting United States v Franklin 415 F3d 537 555-556
(6th Cir 2005)) See also United States v Winkle 477 F3d 407 421 (6th Cir
2007) (ldquoThis Court typically will not review a claim of ineffective assistance on
direct appeal except in rare cases where the error is apparent from the existing
recordrdquo) (quoting United States v Lopez-Medina 461 F3d 724 737 (6th Cir
2006))
No basis exists for departing from the general rule against addressing
ineffective-assistance claims on direct appeal As this Court has noted ldquo[t]he trial
process contains a myriad of complex decisions that for strategic reasons are
sound when made but may appear unsound with the benefit of hindsightrdquo United
States v Davis 306 F3d 398 422 (6th Cir 2002) cert denied 537 US 1208
(2003) (quoting United States v Fortson 194 F3d 730 736 (6th Cir 1999))
Moreover ldquo[j]udicial scrutiny of counselrsquos performance must be highly
deferentialrdquo and ldquoa court must indulge a strong presumption that counselrsquos
conduct falls within the wide range of reasonable professional assistancerdquo
-38shy
Strickland v Washington 466 US 668 689 (1984) Thus to establish ineffective
assistance ldquothe defendant must overcome the presumption that under the
circumstances the challenged action lsquomight be considered sound trial strategyrsquordquo
Ibid (quoting Michel v Louisiana 350 US 91 101 (1955))
Here the decision by defendantrsquos retained trial counsel to elicit the
challenged statements during cross-examination of a government witness
undeniably constitutes an element of trial strategy that cannot be analyzed at this
stage of the proceedings In particular because this is a direct appeal there is no
evidence in the record regarding defense counselrsquos trial strategy This Court
repeatedly has refused to review ineffective-assistance claims under such
circumstances See eg Lopez-Medina 461 F3d at 737 (ldquoAbsent evidence
specifically addressing counselrsquos performance we cannot determine whether his
actions reflected a reasoned trial strategyrdquo) United States v Sullivan 431 F3d
976 986 (6th Cir 2005) (ldquoWithout an explanation from trial counsel as to why he
failed to call the alibi witness we have no basis to determine whether this decision
was the result of inadequate representation or reasonable trial strategyrdquo) United
States v Allison 59 F3d 43 47 (6th Cir) cert denied 516 US 1002 (1995)
(ldquo[T]he sparse record before this court does not reveal whether the attorneyrsquos
actions could be considered sound trial strategyrdquo) United States v Snow 48 F3d
-39shy
198 199 (6th Cir 1995) (ldquoThe record before this court simply is insufficient to
show whether the alleged wrongful acts could be considered sound trial
strategyrdquo) Thus defendantrsquos ineffective-assistance claim must be examined ndash if
at all ndash in a separate collateral proceeding brought pursuant to Section 2255
C The Evidence That Is Available In The Record Does Not Support A Finding Of Ineffective Assistance Of Counsel
As stated above the governmentrsquos position is that the current record is not
sufficient to permit this Court to address defendantrsquos ineffective-assistance claim
in this direct appeal However if the Court disagrees ndash or desires in the interest of
judicial economy to address defendantrsquos claim on direct appeal ndash it should reject
the claim because defendant fails to satisfy the second prong of the ineffective-
assistance inquiry11
11 The government does not concede that the first prong of the Strickland inquiry is satisfied in this case Rather as noted above it is not possible to resolve the issue at this point because the record does not indicate precisely what defendantrsquos trial counsel was thinking what his strategy was or why he elected to pursue certain lines of questioning In the event that defendant elects to bring a collateral challenge pursuant to Section 2255 the government reserves the right to address the first prong of Strickland inquiry and to further develop its argument as to the second prong The governmentrsquos decision not to do so in this brief is based on the incomplete nature of the record with regard to the Strickland inquiry and should not be construed as a waiver or forfeiture of any arguments relating to defendantrsquos ineffective-assistance claim
-40shy
1 Standard For Establishing Ineffective Assistance Of Counsel
To prove ineffective assistance of counsel under Strickland a defendant
first ldquomust demonstrate that counselrsquos performance fell lsquobelow the objective
standard of reasonablenessrsquordquo Ivory v Jackson 509 F3d 284 294 (6th Cir 2007)
cert denied 128 S Ct 1897 (2008) (quoting Strickland 466 US at 688)) ldquoThe
defendant must then demonstrate that lsquothere is a reasonable probability that but
for counselrsquos unprofessional errors the result of the proceeding would have been
different A reasonable probability is a probability sufficient to undermine the
confidence in the outcomersquordquo Ibid (quoting Strickland 466 US at 694)
Significantly this Court ldquoneed not decide whether defense counsel
performed deficiently if disposing of an ineffective-assistance claim on the ground
of lack of sufficient prejudice would be easierrdquo Hynes 467 F3d at 970 See also
Ivory 509 F3d at 294 (ldquo[A] court need not determine whether counselrsquos
performance was deficient before examining the prejudice suffered by the
defendant as a result of the alleged deficiencies If it is easier to dispose of
an ineffectiveness claim on the ground of lack of sufficient prejudice which we
expect will often be so that course should be followedrdquo) (quoting Strickland 466
US at 697)
-41shy
2 Defendant Is Unable To Demonstrate Sufficient Prejudice And Therefore Cannot Satisfy The Second Prong Of The Inquiry
ldquoTo show prejudice [defendant] must demonstrate that lsquothere is a
reasonable probability that but for counselrsquos unprofessional errors the result of
the proceeding would have been differentrsquordquo Harrison v Motley 478 F3d 750
756 (6th Cir) cert denied 128 S Ct 444 (2007) (quoting Strickland 466 US at
694)) As set forth above in Section IIC the evidence of defendantrsquos guilt is
overwhelming and the result therefore would not have been different absent the
challenged statements This Court repeatedly has determined that the second
prong of the Strickland inquiry is not met under such circumstances See eg
Harrison 478 F3d at 757 (defendant ldquofailed to show that his attorneysrsquo alleged
conflict of interest resulted in prejudicerdquo where ldquothe evidence admitted against
[defendant] at trial was lsquooverwhelmingrsquordquo) Hicks v Collins 384 F3d 204 215
(6th Cir 2004) cert denied 545 US 1155 (2005) (holding that defendant cannot
satisfy the second prong of Strickland where ldquothere was overwhelming evidence of
[defendantrsquos] guiltrdquo) Campbell v United States 364 F3d 727 736 (6th Cir
2004) cert denied 543 US 1119 (2005) (ldquoGiven the overwhelming evidence
establishing [defendantrsquos] guilt we believe that he would not have been able to
show that but for his attorneyrsquos failure to object to the prosecutorrsquos alleged
-42shy
misconduct the result would have been differentrdquo)
Accordingly even if this Court determines that the record is sufficient for it
to address defendantrsquos ineffective-assistance claim on direct appeal it should
reject this claim based on his failure to satisfy the second prong of the Strickland
inquiry
CONCLUSION
For the foregoing reasons this Court should affirm the judgment below
Respectfully submitted
GRACE CHUNG BECKER Acting Assistant Attorney General Civil Rights Division
DIANA K FLYNN DIRK C PHILLIPS Attorneys US Department of Justice Civil Rights Divisions Appellate Section Ben Franklin Station PO Box 14403 Washington DC 20044-4403 (202) 305-4876
CERTIFICATE OF COMPLIANCE
Pursuant to Federal Rule of Appellate Procedure 32(a)(7)(B) I hereby
certify that this brief is proportionally spaced 14-point Times New Roman font
Per WordPerfect 12 software the brief contains 9022 words excluding those
parts exempted by Federal Rule of Appellate Procedure 32(a)(7)(B)(iii)
DIRK C PHILLIPS Attorney
DATED June 18 2008
CERTIFICATE OF SERVICE
I hereby certify that on June 18 2008 a copy of the foregoing PROOF
BRIEF FOR THE UNITED STATES AS PLAINTIFF-APPELLEE was served by
first class mail postage prepaid on counsel of record at the following address
Joan E Morgan 2057 Orchard Lake Road Sylvan Lake MI 48320
DIRK C PHILLIPS Attorney
APPELLEErsquoS DESIGNATION OF APPENDIX CONTENTS
APPELLEErsquoS DESIGNATION OF APPENDIX CONTENTS
Appellee United States of America designates the following items to be
review ndash even for plain error See eg United States v Baker 432 F3d 1189
1216 (11th Cir 2005) cert denied 547 US 1085 (2006) (ldquoIt is a cardinal rule of
appellate review that a party may not challenge as error a ruling or other trial
proceeding invited by that party Where invited error exists it precludes a
court from invoking the plain error rule and reversingrdquo) United States v Fulford
980 F2d 1110 1116 (7th Cir 1992) (ldquoIt is well-settled that where error is invited
not even plain error permits reversalrdquo) This Court however has recognized an
exception holding that ldquo[i]nvited error does not foreclose relief when the
interests of justice demand otherwiserdquo Barrow 118 F3d at 491 In this Circuit
the question ldquo[w]hether the circumstances of a particular case justify deviation
from the normal rule of waiver under this doctrine is left largely to the discretion
of the appellate courtrdquo Ibid Nevertheless ldquo[u]nder the invited error doctrine an
error introduced by the complaining party will cause reversal only in the most
exceptional situationrdquo United States v Tandon 111 F3d 482 489 (6th Cir
1997) (citation and internal quotations omitted)
C Any Error By The District Court In Permitting The Challenged Statements Was Invited Error And Therefore Should Not Be Reviewed By This Court
Here all of the challenged statements were elicited by defendantrsquos retained
trial counsel Br 15-24 This plainly constitutes invited error See United States
-21shy
v Parikh 858 F2d 688 695 (11th Cir 1988) (ldquoWe hold that the admission of out
of court statements by a government witness when responding to an inquiry by
defense counsel creates lsquoinvited errorrsquordquo) See also Baker 432 F3d at 1215-1216
(defendant ldquocannot now complain about the district courtrsquos errorrdquo where his
counsel ldquoinvited the errorrdquo by eliciting hearsay during cross-examination) United
States v Neal 78 F3d 901 904 (4th Cir 1996) (defendant ldquoinvited the errorrdquo and
it therefore ldquoprovides no basis for reversalrdquo where ldquo[a]t trial [defendant] did not
object to any of the statements he now challengesrdquo and ldquomost were elicited by his
own attorney from a government witness during cross-examinationrdquo) United
States v Reyes-Alvarado 963 F2d 1184 1187 (9th Cir 1992) cert denied 506
US 890 (1992) (finding invited error and refusing to reverse where ldquoappellantrsquos
counsel solicited the testimony which he now claims should have been excludedrdquo
and ldquodid not seek to strike this testimony at the time it was givenrdquo)9
As a threshold matter it bears noting that defendant fails to acknowledge
the existence of invited error and makes no argument as to why ldquothe interests of
justicerdquo Barrow 118 F3d at 491 require this Court to refrain from applying the
invited-error doctrine Accordingly defendant has waived any right to invoke the
9 This Court has reached a similar conclusion albeit in an unpublished decision See United States v Ali 38 Fed Appx 220 224 (6th Cir Mar 26 2002) (unpublished)
-22shy
interests-of-justice exception recognized by this Court See United States v
Samour 199 F3d 821 822 n1 (6th Cir 1999) (defendant ldquowaived his right to
argue the applicability of [favorable precedent] by failing to raise the issue on
appealrdquo)
Even if not waived however the interests of justice do not require this
Court to depart from the general rule that relief is foreclosed by invited error The
challenged statements were not the result of mere oversight or an isolated error by
defendantrsquos trial counsel Rather this appears to be a classic example of trial
strategy gone awry ndash not a situation in which failure to reverse contravenes the
interests of justice Indeed in this case the interests of justice weigh in favor of
invoking the invited-error doctrine as defendant presumably sought to benefit
from eliciting the challenged statements and thus should not now be heard to
argue their inadmissibility simply because his strategy failed See Reyes-
Alvarado 963 F2d at 1187 (ldquoFrom the transcript it appears that counsel thought
his pursuit of this line of questioning might benefit his client His tactics
backfired and his client was convicted A defendant cannot have it both
ways This was invited error and therefore not grounds for reversalrdquo)
Moreover the governmentrsquos trial counsel showed an abundance of caution
by specifically raising the issue and asking whether it should be discussed at
-23shy
sidebar10 This too weighs against a finding that the interests of justice require
reversal See Neal 78 F3d at 904 (ldquoAt one point the prosecutor even tried to
warn [defendantrsquos] attorney about pursuing a line of questioning relating to the
defendantrsquos prior conduct but [defendantrsquos] attorney persisted Under these
circumstances [defendant] cannot complain of error which he himself has
invitedrdquo) (citation and internal quotations omitted)
Simply put this case precisely illustrates both the purpose behind the
10 The following exchange occurred when defense counsel elicited statements from the witness regarding what Ricky Cotton told the government
[Defense Counsel] Just tell us what Ricky Cotton said and let me -shytell us what obviously is hearsay Irsquoll sit down Tell us what Ricky Cotton -shy
[Government Counsel] Your Honor should we have a sidebar on this
[The Court] What for
[Government Counsel] Irsquom not sure to figure out where we are
[Defense Counsel] This is where we are what Ricky Cotton said
[The Court] Are you objecting
[Government Counsel] If he doesnrsquot have any objection to the witness saying what Ricky Cotton said thatrsquos fine
[Defense Counsel] Letrsquos go Tell us what Ricky Cotton said
(418 Tr 173-174 Apx __)
-24shy
invited-error doctrine and the need to enforce it strictly Defendantrsquos appeal does
not challenge any action by the government Nor does he take issue with the
district courtrsquos instructions to the jury the sufficiency of the evidence to support
his conviction or the reasonableness of his sentence He also does not contend the
district court improperly ruled on any objection made by his trial counsel Rather
his arguments on appeal arise solely from the actions of his own retained trial
counsel Such claims must be rejected on their face as a contrary rule would
create perverse incentives for defendants to invite some small amount of error in
every trial so as to create grounds for appeal Accordingly this Court should
apply the invited-error doctrine and affirm the judgment below without reaching
the question whether plain error exists
II
THE DISTRICT COURT DID NOT COMMIT PLAIN ERROR IN FAILING TO SUA SPONTE PREVENT DEFENDANTrsquoS TRIAL COUNSEL FROM
ELICITING THE CHALLENGED TESTIMONY
As noted above in Section IA if this Court determines that the invited-
error doctrine does not apply it should review admission of the challenged
statements for plain error United States v Namey 364 F3d 843 846 (6th Cir
2004)
-25shy
A The Plain-Error Doctrine
ldquoThe plain error doctrine mandates reversal only in exceptional
circumstances and only where the error is so plain that the trial judge and
prosecutor were derelict in countenancing itrdquo United States v Gardiner 463 F3d
445 459 (6th Cir 2006) (quoting United States v Carroll 26 F3d 1380 1383
(6th Cir 1994)) It ldquois to be used sparingly only in exceptional circumstances
and solely to avoid a miscarriage of justicerdquo United States v Phillips 516 F3d
479 487 (6th Cir 2008) (quoting United States v Cox 957 F2d 264 267 (6th
Cir 1992))
ldquoTo show plain error a defendant must establish the following (1) error
(2) that is plain and (3) that affects substantial rights If these three conditions are
met an appellate court may then exercise its discretion to notice a forfeited error
but only if (4) the error seriously affects the fairness integrity or public reputation
of judicial proceedingsrdquo United States v Arnold 486 F3d 177 194 (6th Cir
2007) cert denied 128 S Ct 871 (2008) (citation and internal quotations
omitted) ldquoThe phrase lsquoaffects substantial rightsrsquo lsquomeans prejudicial It must have
affected the outcome of the district court proceedingsrsquordquo United States v
(ldquo[I]ssues adverted to in a perfunctory manner unaccompanied by some effort at
developed argumentation are deemed waivedrdquo) (quoting McPherson v Kelsey
125 F3d 989 995-996 (6th Cir 1997))
-27shy
C The Third And Fourth Prongs Of The Plain-Error Doctrine Are Not Satisfied In This Case Because Other Evidence Supporting Defendantrsquos Conviction Is Overwhelming
Even if the issue were fully briefed a finding of plain error would be
improper because defendant cannot satisfy the third or fourth prongs of the
inquiry The third prong of the plain-error inquiry ndash ie the requirement that the
error ldquoaffects substantial rightsrdquo Arnold 486 F3d at 194 by ldquoaffect[ing] the
outcome of the district court proceedingsrdquo Mooneyham 473 F3d at 288 ndash is not
satisfied where the evidence against the defendant is overwhelming See
Mooneyham 473 F3d at 288 United States v Hines 398 F3d 713 718-719 (6th
Cir) cert denied 545 US 1134 (2005)
Likewise the fourth prong of the inquiry ndash ie the requirement that the
error be said to have ldquoseriously affect[ed] the fairness integrity or public
reputation of judicial proceedingsrdquo Arnold 486 F3d at 194 ndash also is not met when
other evidence is ldquooverwhelmingrdquo and ldquoessentially uncontrovertedrdquo See United
States v Cotton 535 US 625 632-633 (2002) Johnson v United States 520
US 461 469-470 (1997) Hines 398 F3d at 718-719 Indeed as both the
Supreme Court and this Court have recognized with regard to the fourth prong of
the inquiry in some cases ldquoit would be the reversal of a conviction which
would have th[e] effectrdquo of ldquoseriously affect[ing] the fairness integrity or public
-28shy
reputation of judicial proceedingsrdquo Johnson 520 US at 470 (internal quotations
omitted) (emphasis added) see also United States v McGhee 119 F3d 422 424shy
425 (6th Cir 1997) This is so because ldquo[r]eversal for error regardless of its effect
on the judgment encourages litigants to abuse the judicial process and bestirs the
public to ridicule itrdquo Johnson 520 US at 470 (citation and internal quotations
omitted) see also McGhee 119 F3d at 424-425
In view of the foregoing courts often cite the presence of overwhelming
evidence as the basis for concluding that a defendant has failed to meet both the
third and fourth prongs of the plain-error inquiry See Hines 398 F3d at 718-719
United States v Dedhia 134 F3d 802 809 (6th Cir) cert denied 523 US 1145
(1998) see also United States v Birk 453 F3d 893 898 (7th Cir 2006) United
States v Taylor 284 F3d 95 102 (1st Cir) cert denied 536 US 933 (2002)
This Court should follow that approach here as there is overwhelming evidence ndash
separate and apart from the challenged statements ndash to support defendantrsquos
conviction Specifically as explained more fully below testimony at trial
established that defendant (1) spoke openly to others during the weeks leading up
to the fire regarding his desire to force the Dosters from the neighborhood (2) was
the one who set the fire (3) confided to a friend afterward that he both set the fire
and performed the lawn job with the intent to drive the Dosters away because of
-29shy
their race and (4) told conflicting stories to the FBI during the course of its
investigation one of which included an admission that he was at least indirectly
involved in setting the fire
1 Defendantrsquos Statements Prior To The Fire
Two witnesses offered detailed accounts of conversations they had with
defendant prior to the date of the fire During these conversations defendant
expressed his desire to drive the Dosters from their home
Guy Wurts testified that in mid-July 2002 Defendant said something to the
effect of ldquoI got to get rid of these niggers Irsquoll find something to do I donrsquot know
what I got to get these niggers out [of] the neighborhoodrdquo (Wurts 417 Tr 208shy
209 Apx __) Wurts testified that defendant looked in the Dostersrsquo direction
when he made these comments and said the word ldquoniggerrdquo loud enough for the
Dosters ndash who were working in their yard at the time ndash to hear it (Wurts 417 Tr
202-203 209-210 Apx __) Wurts further testified that defendant ldquoseemed
seriousrdquo when he made these statements (Wurts 417 Tr 259 Apx __)
Debbie Daniely recounted similar statements by defendant Specifically
defendant told Daniely more than once that he was very upset about the Dosters
moving into the neighborhood saying something to the effect of ldquoniggers are
moving inrdquo and ldquo[w]e have to do something about itrdquo (Daniely 418 Tr 22-25
-30shy
Apx __) Defendant later admitted to the FBI that he made such a statement to
ldquo[t]his Court has lsquoroutinely concluded that such claims are best brought by a
defendant in a post-conviction proceeding under 28 USC sect 2255 so that the
-37shy
parties can develop an adequate record on the issuersquordquo Martinez 430 F3d at 338
(quoting United States v Brown 332 F3d 363 368 (6th Cir 2003)) ldquoThere is
however lsquoa narrow exceptionrsquo to this rule lsquowhen the existing record is adequate to
assess properly the merits of the claimrsquordquo United States v Hynes 467 F3d 951
969 (6th Cir 2006) (quoting United States v Franklin 415 F3d 537 555-556
(6th Cir 2005)) See also United States v Winkle 477 F3d 407 421 (6th Cir
2007) (ldquoThis Court typically will not review a claim of ineffective assistance on
direct appeal except in rare cases where the error is apparent from the existing
recordrdquo) (quoting United States v Lopez-Medina 461 F3d 724 737 (6th Cir
2006))
No basis exists for departing from the general rule against addressing
ineffective-assistance claims on direct appeal As this Court has noted ldquo[t]he trial
process contains a myriad of complex decisions that for strategic reasons are
sound when made but may appear unsound with the benefit of hindsightrdquo United
States v Davis 306 F3d 398 422 (6th Cir 2002) cert denied 537 US 1208
(2003) (quoting United States v Fortson 194 F3d 730 736 (6th Cir 1999))
Moreover ldquo[j]udicial scrutiny of counselrsquos performance must be highly
deferentialrdquo and ldquoa court must indulge a strong presumption that counselrsquos
conduct falls within the wide range of reasonable professional assistancerdquo
-38shy
Strickland v Washington 466 US 668 689 (1984) Thus to establish ineffective
assistance ldquothe defendant must overcome the presumption that under the
circumstances the challenged action lsquomight be considered sound trial strategyrsquordquo
Ibid (quoting Michel v Louisiana 350 US 91 101 (1955))
Here the decision by defendantrsquos retained trial counsel to elicit the
challenged statements during cross-examination of a government witness
undeniably constitutes an element of trial strategy that cannot be analyzed at this
stage of the proceedings In particular because this is a direct appeal there is no
evidence in the record regarding defense counselrsquos trial strategy This Court
repeatedly has refused to review ineffective-assistance claims under such
circumstances See eg Lopez-Medina 461 F3d at 737 (ldquoAbsent evidence
specifically addressing counselrsquos performance we cannot determine whether his
actions reflected a reasoned trial strategyrdquo) United States v Sullivan 431 F3d
976 986 (6th Cir 2005) (ldquoWithout an explanation from trial counsel as to why he
failed to call the alibi witness we have no basis to determine whether this decision
was the result of inadequate representation or reasonable trial strategyrdquo) United
States v Allison 59 F3d 43 47 (6th Cir) cert denied 516 US 1002 (1995)
(ldquo[T]he sparse record before this court does not reveal whether the attorneyrsquos
actions could be considered sound trial strategyrdquo) United States v Snow 48 F3d
-39shy
198 199 (6th Cir 1995) (ldquoThe record before this court simply is insufficient to
show whether the alleged wrongful acts could be considered sound trial
strategyrdquo) Thus defendantrsquos ineffective-assistance claim must be examined ndash if
at all ndash in a separate collateral proceeding brought pursuant to Section 2255
C The Evidence That Is Available In The Record Does Not Support A Finding Of Ineffective Assistance Of Counsel
As stated above the governmentrsquos position is that the current record is not
sufficient to permit this Court to address defendantrsquos ineffective-assistance claim
in this direct appeal However if the Court disagrees ndash or desires in the interest of
judicial economy to address defendantrsquos claim on direct appeal ndash it should reject
the claim because defendant fails to satisfy the second prong of the ineffective-
assistance inquiry11
11 The government does not concede that the first prong of the Strickland inquiry is satisfied in this case Rather as noted above it is not possible to resolve the issue at this point because the record does not indicate precisely what defendantrsquos trial counsel was thinking what his strategy was or why he elected to pursue certain lines of questioning In the event that defendant elects to bring a collateral challenge pursuant to Section 2255 the government reserves the right to address the first prong of Strickland inquiry and to further develop its argument as to the second prong The governmentrsquos decision not to do so in this brief is based on the incomplete nature of the record with regard to the Strickland inquiry and should not be construed as a waiver or forfeiture of any arguments relating to defendantrsquos ineffective-assistance claim
-40shy
1 Standard For Establishing Ineffective Assistance Of Counsel
To prove ineffective assistance of counsel under Strickland a defendant
first ldquomust demonstrate that counselrsquos performance fell lsquobelow the objective
standard of reasonablenessrsquordquo Ivory v Jackson 509 F3d 284 294 (6th Cir 2007)
cert denied 128 S Ct 1897 (2008) (quoting Strickland 466 US at 688)) ldquoThe
defendant must then demonstrate that lsquothere is a reasonable probability that but
for counselrsquos unprofessional errors the result of the proceeding would have been
different A reasonable probability is a probability sufficient to undermine the
confidence in the outcomersquordquo Ibid (quoting Strickland 466 US at 694)
Significantly this Court ldquoneed not decide whether defense counsel
performed deficiently if disposing of an ineffective-assistance claim on the ground
of lack of sufficient prejudice would be easierrdquo Hynes 467 F3d at 970 See also
Ivory 509 F3d at 294 (ldquo[A] court need not determine whether counselrsquos
performance was deficient before examining the prejudice suffered by the
defendant as a result of the alleged deficiencies If it is easier to dispose of
an ineffectiveness claim on the ground of lack of sufficient prejudice which we
expect will often be so that course should be followedrdquo) (quoting Strickland 466
US at 697)
-41shy
2 Defendant Is Unable To Demonstrate Sufficient Prejudice And Therefore Cannot Satisfy The Second Prong Of The Inquiry
ldquoTo show prejudice [defendant] must demonstrate that lsquothere is a
reasonable probability that but for counselrsquos unprofessional errors the result of
the proceeding would have been differentrsquordquo Harrison v Motley 478 F3d 750
756 (6th Cir) cert denied 128 S Ct 444 (2007) (quoting Strickland 466 US at
694)) As set forth above in Section IIC the evidence of defendantrsquos guilt is
overwhelming and the result therefore would not have been different absent the
challenged statements This Court repeatedly has determined that the second
prong of the Strickland inquiry is not met under such circumstances See eg
Harrison 478 F3d at 757 (defendant ldquofailed to show that his attorneysrsquo alleged
conflict of interest resulted in prejudicerdquo where ldquothe evidence admitted against
[defendant] at trial was lsquooverwhelmingrsquordquo) Hicks v Collins 384 F3d 204 215
(6th Cir 2004) cert denied 545 US 1155 (2005) (holding that defendant cannot
satisfy the second prong of Strickland where ldquothere was overwhelming evidence of
[defendantrsquos] guiltrdquo) Campbell v United States 364 F3d 727 736 (6th Cir
2004) cert denied 543 US 1119 (2005) (ldquoGiven the overwhelming evidence
establishing [defendantrsquos] guilt we believe that he would not have been able to
show that but for his attorneyrsquos failure to object to the prosecutorrsquos alleged
-42shy
misconduct the result would have been differentrdquo)
Accordingly even if this Court determines that the record is sufficient for it
to address defendantrsquos ineffective-assistance claim on direct appeal it should
reject this claim based on his failure to satisfy the second prong of the Strickland
inquiry
CONCLUSION
For the foregoing reasons this Court should affirm the judgment below
Respectfully submitted
GRACE CHUNG BECKER Acting Assistant Attorney General Civil Rights Division
DIANA K FLYNN DIRK C PHILLIPS Attorneys US Department of Justice Civil Rights Divisions Appellate Section Ben Franklin Station PO Box 14403 Washington DC 20044-4403 (202) 305-4876
CERTIFICATE OF COMPLIANCE
Pursuant to Federal Rule of Appellate Procedure 32(a)(7)(B) I hereby
certify that this brief is proportionally spaced 14-point Times New Roman font
Per WordPerfect 12 software the brief contains 9022 words excluding those
parts exempted by Federal Rule of Appellate Procedure 32(a)(7)(B)(iii)
DIRK C PHILLIPS Attorney
DATED June 18 2008
CERTIFICATE OF SERVICE
I hereby certify that on June 18 2008 a copy of the foregoing PROOF
BRIEF FOR THE UNITED STATES AS PLAINTIFF-APPELLEE was served by
first class mail postage prepaid on counsel of record at the following address
Joan E Morgan 2057 Orchard Lake Road Sylvan Lake MI 48320
DIRK C PHILLIPS Attorney
APPELLEErsquoS DESIGNATION OF APPENDIX CONTENTS
APPELLEErsquoS DESIGNATION OF APPENDIX CONTENTS
Appellee United States of America designates the following items to be
v Parikh 858 F2d 688 695 (11th Cir 1988) (ldquoWe hold that the admission of out
of court statements by a government witness when responding to an inquiry by
defense counsel creates lsquoinvited errorrsquordquo) See also Baker 432 F3d at 1215-1216
(defendant ldquocannot now complain about the district courtrsquos errorrdquo where his
counsel ldquoinvited the errorrdquo by eliciting hearsay during cross-examination) United
States v Neal 78 F3d 901 904 (4th Cir 1996) (defendant ldquoinvited the errorrdquo and
it therefore ldquoprovides no basis for reversalrdquo where ldquo[a]t trial [defendant] did not
object to any of the statements he now challengesrdquo and ldquomost were elicited by his
own attorney from a government witness during cross-examinationrdquo) United
States v Reyes-Alvarado 963 F2d 1184 1187 (9th Cir 1992) cert denied 506
US 890 (1992) (finding invited error and refusing to reverse where ldquoappellantrsquos
counsel solicited the testimony which he now claims should have been excludedrdquo
and ldquodid not seek to strike this testimony at the time it was givenrdquo)9
As a threshold matter it bears noting that defendant fails to acknowledge
the existence of invited error and makes no argument as to why ldquothe interests of
justicerdquo Barrow 118 F3d at 491 require this Court to refrain from applying the
invited-error doctrine Accordingly defendant has waived any right to invoke the
9 This Court has reached a similar conclusion albeit in an unpublished decision See United States v Ali 38 Fed Appx 220 224 (6th Cir Mar 26 2002) (unpublished)
-22shy
interests-of-justice exception recognized by this Court See United States v
Samour 199 F3d 821 822 n1 (6th Cir 1999) (defendant ldquowaived his right to
argue the applicability of [favorable precedent] by failing to raise the issue on
appealrdquo)
Even if not waived however the interests of justice do not require this
Court to depart from the general rule that relief is foreclosed by invited error The
challenged statements were not the result of mere oversight or an isolated error by
defendantrsquos trial counsel Rather this appears to be a classic example of trial
strategy gone awry ndash not a situation in which failure to reverse contravenes the
interests of justice Indeed in this case the interests of justice weigh in favor of
invoking the invited-error doctrine as defendant presumably sought to benefit
from eliciting the challenged statements and thus should not now be heard to
argue their inadmissibility simply because his strategy failed See Reyes-
Alvarado 963 F2d at 1187 (ldquoFrom the transcript it appears that counsel thought
his pursuit of this line of questioning might benefit his client His tactics
backfired and his client was convicted A defendant cannot have it both
ways This was invited error and therefore not grounds for reversalrdquo)
Moreover the governmentrsquos trial counsel showed an abundance of caution
by specifically raising the issue and asking whether it should be discussed at
-23shy
sidebar10 This too weighs against a finding that the interests of justice require
reversal See Neal 78 F3d at 904 (ldquoAt one point the prosecutor even tried to
warn [defendantrsquos] attorney about pursuing a line of questioning relating to the
defendantrsquos prior conduct but [defendantrsquos] attorney persisted Under these
circumstances [defendant] cannot complain of error which he himself has
invitedrdquo) (citation and internal quotations omitted)
Simply put this case precisely illustrates both the purpose behind the
10 The following exchange occurred when defense counsel elicited statements from the witness regarding what Ricky Cotton told the government
[Defense Counsel] Just tell us what Ricky Cotton said and let me -shytell us what obviously is hearsay Irsquoll sit down Tell us what Ricky Cotton -shy
[Government Counsel] Your Honor should we have a sidebar on this
[The Court] What for
[Government Counsel] Irsquom not sure to figure out where we are
[Defense Counsel] This is where we are what Ricky Cotton said
[The Court] Are you objecting
[Government Counsel] If he doesnrsquot have any objection to the witness saying what Ricky Cotton said thatrsquos fine
[Defense Counsel] Letrsquos go Tell us what Ricky Cotton said
(418 Tr 173-174 Apx __)
-24shy
invited-error doctrine and the need to enforce it strictly Defendantrsquos appeal does
not challenge any action by the government Nor does he take issue with the
district courtrsquos instructions to the jury the sufficiency of the evidence to support
his conviction or the reasonableness of his sentence He also does not contend the
district court improperly ruled on any objection made by his trial counsel Rather
his arguments on appeal arise solely from the actions of his own retained trial
counsel Such claims must be rejected on their face as a contrary rule would
create perverse incentives for defendants to invite some small amount of error in
every trial so as to create grounds for appeal Accordingly this Court should
apply the invited-error doctrine and affirm the judgment below without reaching
the question whether plain error exists
II
THE DISTRICT COURT DID NOT COMMIT PLAIN ERROR IN FAILING TO SUA SPONTE PREVENT DEFENDANTrsquoS TRIAL COUNSEL FROM
ELICITING THE CHALLENGED TESTIMONY
As noted above in Section IA if this Court determines that the invited-
error doctrine does not apply it should review admission of the challenged
statements for plain error United States v Namey 364 F3d 843 846 (6th Cir
2004)
-25shy
A The Plain-Error Doctrine
ldquoThe plain error doctrine mandates reversal only in exceptional
circumstances and only where the error is so plain that the trial judge and
prosecutor were derelict in countenancing itrdquo United States v Gardiner 463 F3d
445 459 (6th Cir 2006) (quoting United States v Carroll 26 F3d 1380 1383
(6th Cir 1994)) It ldquois to be used sparingly only in exceptional circumstances
and solely to avoid a miscarriage of justicerdquo United States v Phillips 516 F3d
479 487 (6th Cir 2008) (quoting United States v Cox 957 F2d 264 267 (6th
Cir 1992))
ldquoTo show plain error a defendant must establish the following (1) error
(2) that is plain and (3) that affects substantial rights If these three conditions are
met an appellate court may then exercise its discretion to notice a forfeited error
but only if (4) the error seriously affects the fairness integrity or public reputation
of judicial proceedingsrdquo United States v Arnold 486 F3d 177 194 (6th Cir
2007) cert denied 128 S Ct 871 (2008) (citation and internal quotations
omitted) ldquoThe phrase lsquoaffects substantial rightsrsquo lsquomeans prejudicial It must have
affected the outcome of the district court proceedingsrsquordquo United States v
(ldquo[I]ssues adverted to in a perfunctory manner unaccompanied by some effort at
developed argumentation are deemed waivedrdquo) (quoting McPherson v Kelsey
125 F3d 989 995-996 (6th Cir 1997))
-27shy
C The Third And Fourth Prongs Of The Plain-Error Doctrine Are Not Satisfied In This Case Because Other Evidence Supporting Defendantrsquos Conviction Is Overwhelming
Even if the issue were fully briefed a finding of plain error would be
improper because defendant cannot satisfy the third or fourth prongs of the
inquiry The third prong of the plain-error inquiry ndash ie the requirement that the
error ldquoaffects substantial rightsrdquo Arnold 486 F3d at 194 by ldquoaffect[ing] the
outcome of the district court proceedingsrdquo Mooneyham 473 F3d at 288 ndash is not
satisfied where the evidence against the defendant is overwhelming See
Mooneyham 473 F3d at 288 United States v Hines 398 F3d 713 718-719 (6th
Cir) cert denied 545 US 1134 (2005)
Likewise the fourth prong of the inquiry ndash ie the requirement that the
error be said to have ldquoseriously affect[ed] the fairness integrity or public
reputation of judicial proceedingsrdquo Arnold 486 F3d at 194 ndash also is not met when
other evidence is ldquooverwhelmingrdquo and ldquoessentially uncontrovertedrdquo See United
States v Cotton 535 US 625 632-633 (2002) Johnson v United States 520
US 461 469-470 (1997) Hines 398 F3d at 718-719 Indeed as both the
Supreme Court and this Court have recognized with regard to the fourth prong of
the inquiry in some cases ldquoit would be the reversal of a conviction which
would have th[e] effectrdquo of ldquoseriously affect[ing] the fairness integrity or public
-28shy
reputation of judicial proceedingsrdquo Johnson 520 US at 470 (internal quotations
omitted) (emphasis added) see also United States v McGhee 119 F3d 422 424shy
425 (6th Cir 1997) This is so because ldquo[r]eversal for error regardless of its effect
on the judgment encourages litigants to abuse the judicial process and bestirs the
public to ridicule itrdquo Johnson 520 US at 470 (citation and internal quotations
omitted) see also McGhee 119 F3d at 424-425
In view of the foregoing courts often cite the presence of overwhelming
evidence as the basis for concluding that a defendant has failed to meet both the
third and fourth prongs of the plain-error inquiry See Hines 398 F3d at 718-719
United States v Dedhia 134 F3d 802 809 (6th Cir) cert denied 523 US 1145
(1998) see also United States v Birk 453 F3d 893 898 (7th Cir 2006) United
States v Taylor 284 F3d 95 102 (1st Cir) cert denied 536 US 933 (2002)
This Court should follow that approach here as there is overwhelming evidence ndash
separate and apart from the challenged statements ndash to support defendantrsquos
conviction Specifically as explained more fully below testimony at trial
established that defendant (1) spoke openly to others during the weeks leading up
to the fire regarding his desire to force the Dosters from the neighborhood (2) was
the one who set the fire (3) confided to a friend afterward that he both set the fire
and performed the lawn job with the intent to drive the Dosters away because of
-29shy
their race and (4) told conflicting stories to the FBI during the course of its
investigation one of which included an admission that he was at least indirectly
involved in setting the fire
1 Defendantrsquos Statements Prior To The Fire
Two witnesses offered detailed accounts of conversations they had with
defendant prior to the date of the fire During these conversations defendant
expressed his desire to drive the Dosters from their home
Guy Wurts testified that in mid-July 2002 Defendant said something to the
effect of ldquoI got to get rid of these niggers Irsquoll find something to do I donrsquot know
what I got to get these niggers out [of] the neighborhoodrdquo (Wurts 417 Tr 208shy
209 Apx __) Wurts testified that defendant looked in the Dostersrsquo direction
when he made these comments and said the word ldquoniggerrdquo loud enough for the
Dosters ndash who were working in their yard at the time ndash to hear it (Wurts 417 Tr
202-203 209-210 Apx __) Wurts further testified that defendant ldquoseemed
seriousrdquo when he made these statements (Wurts 417 Tr 259 Apx __)
Debbie Daniely recounted similar statements by defendant Specifically
defendant told Daniely more than once that he was very upset about the Dosters
moving into the neighborhood saying something to the effect of ldquoniggers are
moving inrdquo and ldquo[w]e have to do something about itrdquo (Daniely 418 Tr 22-25
-30shy
Apx __) Defendant later admitted to the FBI that he made such a statement to
ldquo[t]his Court has lsquoroutinely concluded that such claims are best brought by a
defendant in a post-conviction proceeding under 28 USC sect 2255 so that the
-37shy
parties can develop an adequate record on the issuersquordquo Martinez 430 F3d at 338
(quoting United States v Brown 332 F3d 363 368 (6th Cir 2003)) ldquoThere is
however lsquoa narrow exceptionrsquo to this rule lsquowhen the existing record is adequate to
assess properly the merits of the claimrsquordquo United States v Hynes 467 F3d 951
969 (6th Cir 2006) (quoting United States v Franklin 415 F3d 537 555-556
(6th Cir 2005)) See also United States v Winkle 477 F3d 407 421 (6th Cir
2007) (ldquoThis Court typically will not review a claim of ineffective assistance on
direct appeal except in rare cases where the error is apparent from the existing
recordrdquo) (quoting United States v Lopez-Medina 461 F3d 724 737 (6th Cir
2006))
No basis exists for departing from the general rule against addressing
ineffective-assistance claims on direct appeal As this Court has noted ldquo[t]he trial
process contains a myriad of complex decisions that for strategic reasons are
sound when made but may appear unsound with the benefit of hindsightrdquo United
States v Davis 306 F3d 398 422 (6th Cir 2002) cert denied 537 US 1208
(2003) (quoting United States v Fortson 194 F3d 730 736 (6th Cir 1999))
Moreover ldquo[j]udicial scrutiny of counselrsquos performance must be highly
deferentialrdquo and ldquoa court must indulge a strong presumption that counselrsquos
conduct falls within the wide range of reasonable professional assistancerdquo
-38shy
Strickland v Washington 466 US 668 689 (1984) Thus to establish ineffective
assistance ldquothe defendant must overcome the presumption that under the
circumstances the challenged action lsquomight be considered sound trial strategyrsquordquo
Ibid (quoting Michel v Louisiana 350 US 91 101 (1955))
Here the decision by defendantrsquos retained trial counsel to elicit the
challenged statements during cross-examination of a government witness
undeniably constitutes an element of trial strategy that cannot be analyzed at this
stage of the proceedings In particular because this is a direct appeal there is no
evidence in the record regarding defense counselrsquos trial strategy This Court
repeatedly has refused to review ineffective-assistance claims under such
circumstances See eg Lopez-Medina 461 F3d at 737 (ldquoAbsent evidence
specifically addressing counselrsquos performance we cannot determine whether his
actions reflected a reasoned trial strategyrdquo) United States v Sullivan 431 F3d
976 986 (6th Cir 2005) (ldquoWithout an explanation from trial counsel as to why he
failed to call the alibi witness we have no basis to determine whether this decision
was the result of inadequate representation or reasonable trial strategyrdquo) United
States v Allison 59 F3d 43 47 (6th Cir) cert denied 516 US 1002 (1995)
(ldquo[T]he sparse record before this court does not reveal whether the attorneyrsquos
actions could be considered sound trial strategyrdquo) United States v Snow 48 F3d
-39shy
198 199 (6th Cir 1995) (ldquoThe record before this court simply is insufficient to
show whether the alleged wrongful acts could be considered sound trial
strategyrdquo) Thus defendantrsquos ineffective-assistance claim must be examined ndash if
at all ndash in a separate collateral proceeding brought pursuant to Section 2255
C The Evidence That Is Available In The Record Does Not Support A Finding Of Ineffective Assistance Of Counsel
As stated above the governmentrsquos position is that the current record is not
sufficient to permit this Court to address defendantrsquos ineffective-assistance claim
in this direct appeal However if the Court disagrees ndash or desires in the interest of
judicial economy to address defendantrsquos claim on direct appeal ndash it should reject
the claim because defendant fails to satisfy the second prong of the ineffective-
assistance inquiry11
11 The government does not concede that the first prong of the Strickland inquiry is satisfied in this case Rather as noted above it is not possible to resolve the issue at this point because the record does not indicate precisely what defendantrsquos trial counsel was thinking what his strategy was or why he elected to pursue certain lines of questioning In the event that defendant elects to bring a collateral challenge pursuant to Section 2255 the government reserves the right to address the first prong of Strickland inquiry and to further develop its argument as to the second prong The governmentrsquos decision not to do so in this brief is based on the incomplete nature of the record with regard to the Strickland inquiry and should not be construed as a waiver or forfeiture of any arguments relating to defendantrsquos ineffective-assistance claim
-40shy
1 Standard For Establishing Ineffective Assistance Of Counsel
To prove ineffective assistance of counsel under Strickland a defendant
first ldquomust demonstrate that counselrsquos performance fell lsquobelow the objective
standard of reasonablenessrsquordquo Ivory v Jackson 509 F3d 284 294 (6th Cir 2007)
cert denied 128 S Ct 1897 (2008) (quoting Strickland 466 US at 688)) ldquoThe
defendant must then demonstrate that lsquothere is a reasonable probability that but
for counselrsquos unprofessional errors the result of the proceeding would have been
different A reasonable probability is a probability sufficient to undermine the
confidence in the outcomersquordquo Ibid (quoting Strickland 466 US at 694)
Significantly this Court ldquoneed not decide whether defense counsel
performed deficiently if disposing of an ineffective-assistance claim on the ground
of lack of sufficient prejudice would be easierrdquo Hynes 467 F3d at 970 See also
Ivory 509 F3d at 294 (ldquo[A] court need not determine whether counselrsquos
performance was deficient before examining the prejudice suffered by the
defendant as a result of the alleged deficiencies If it is easier to dispose of
an ineffectiveness claim on the ground of lack of sufficient prejudice which we
expect will often be so that course should be followedrdquo) (quoting Strickland 466
US at 697)
-41shy
2 Defendant Is Unable To Demonstrate Sufficient Prejudice And Therefore Cannot Satisfy The Second Prong Of The Inquiry
ldquoTo show prejudice [defendant] must demonstrate that lsquothere is a
reasonable probability that but for counselrsquos unprofessional errors the result of
the proceeding would have been differentrsquordquo Harrison v Motley 478 F3d 750
756 (6th Cir) cert denied 128 S Ct 444 (2007) (quoting Strickland 466 US at
694)) As set forth above in Section IIC the evidence of defendantrsquos guilt is
overwhelming and the result therefore would not have been different absent the
challenged statements This Court repeatedly has determined that the second
prong of the Strickland inquiry is not met under such circumstances See eg
Harrison 478 F3d at 757 (defendant ldquofailed to show that his attorneysrsquo alleged
conflict of interest resulted in prejudicerdquo where ldquothe evidence admitted against
[defendant] at trial was lsquooverwhelmingrsquordquo) Hicks v Collins 384 F3d 204 215
(6th Cir 2004) cert denied 545 US 1155 (2005) (holding that defendant cannot
satisfy the second prong of Strickland where ldquothere was overwhelming evidence of
[defendantrsquos] guiltrdquo) Campbell v United States 364 F3d 727 736 (6th Cir
2004) cert denied 543 US 1119 (2005) (ldquoGiven the overwhelming evidence
establishing [defendantrsquos] guilt we believe that he would not have been able to
show that but for his attorneyrsquos failure to object to the prosecutorrsquos alleged
-42shy
misconduct the result would have been differentrdquo)
Accordingly even if this Court determines that the record is sufficient for it
to address defendantrsquos ineffective-assistance claim on direct appeal it should
reject this claim based on his failure to satisfy the second prong of the Strickland
inquiry
CONCLUSION
For the foregoing reasons this Court should affirm the judgment below
Respectfully submitted
GRACE CHUNG BECKER Acting Assistant Attorney General Civil Rights Division
DIANA K FLYNN DIRK C PHILLIPS Attorneys US Department of Justice Civil Rights Divisions Appellate Section Ben Franklin Station PO Box 14403 Washington DC 20044-4403 (202) 305-4876
CERTIFICATE OF COMPLIANCE
Pursuant to Federal Rule of Appellate Procedure 32(a)(7)(B) I hereby
certify that this brief is proportionally spaced 14-point Times New Roman font
Per WordPerfect 12 software the brief contains 9022 words excluding those
parts exempted by Federal Rule of Appellate Procedure 32(a)(7)(B)(iii)
DIRK C PHILLIPS Attorney
DATED June 18 2008
CERTIFICATE OF SERVICE
I hereby certify that on June 18 2008 a copy of the foregoing PROOF
BRIEF FOR THE UNITED STATES AS PLAINTIFF-APPELLEE was served by
first class mail postage prepaid on counsel of record at the following address
Joan E Morgan 2057 Orchard Lake Road Sylvan Lake MI 48320
DIRK C PHILLIPS Attorney
APPELLEErsquoS DESIGNATION OF APPENDIX CONTENTS
APPELLEErsquoS DESIGNATION OF APPENDIX CONTENTS
Appellee United States of America designates the following items to be
interests-of-justice exception recognized by this Court See United States v
Samour 199 F3d 821 822 n1 (6th Cir 1999) (defendant ldquowaived his right to
argue the applicability of [favorable precedent] by failing to raise the issue on
appealrdquo)
Even if not waived however the interests of justice do not require this
Court to depart from the general rule that relief is foreclosed by invited error The
challenged statements were not the result of mere oversight or an isolated error by
defendantrsquos trial counsel Rather this appears to be a classic example of trial
strategy gone awry ndash not a situation in which failure to reverse contravenes the
interests of justice Indeed in this case the interests of justice weigh in favor of
invoking the invited-error doctrine as defendant presumably sought to benefit
from eliciting the challenged statements and thus should not now be heard to
argue their inadmissibility simply because his strategy failed See Reyes-
Alvarado 963 F2d at 1187 (ldquoFrom the transcript it appears that counsel thought
his pursuit of this line of questioning might benefit his client His tactics
backfired and his client was convicted A defendant cannot have it both
ways This was invited error and therefore not grounds for reversalrdquo)
Moreover the governmentrsquos trial counsel showed an abundance of caution
by specifically raising the issue and asking whether it should be discussed at
-23shy
sidebar10 This too weighs against a finding that the interests of justice require
reversal See Neal 78 F3d at 904 (ldquoAt one point the prosecutor even tried to
warn [defendantrsquos] attorney about pursuing a line of questioning relating to the
defendantrsquos prior conduct but [defendantrsquos] attorney persisted Under these
circumstances [defendant] cannot complain of error which he himself has
invitedrdquo) (citation and internal quotations omitted)
Simply put this case precisely illustrates both the purpose behind the
10 The following exchange occurred when defense counsel elicited statements from the witness regarding what Ricky Cotton told the government
[Defense Counsel] Just tell us what Ricky Cotton said and let me -shytell us what obviously is hearsay Irsquoll sit down Tell us what Ricky Cotton -shy
[Government Counsel] Your Honor should we have a sidebar on this
[The Court] What for
[Government Counsel] Irsquom not sure to figure out where we are
[Defense Counsel] This is where we are what Ricky Cotton said
[The Court] Are you objecting
[Government Counsel] If he doesnrsquot have any objection to the witness saying what Ricky Cotton said thatrsquos fine
[Defense Counsel] Letrsquos go Tell us what Ricky Cotton said
(418 Tr 173-174 Apx __)
-24shy
invited-error doctrine and the need to enforce it strictly Defendantrsquos appeal does
not challenge any action by the government Nor does he take issue with the
district courtrsquos instructions to the jury the sufficiency of the evidence to support
his conviction or the reasonableness of his sentence He also does not contend the
district court improperly ruled on any objection made by his trial counsel Rather
his arguments on appeal arise solely from the actions of his own retained trial
counsel Such claims must be rejected on their face as a contrary rule would
create perverse incentives for defendants to invite some small amount of error in
every trial so as to create grounds for appeal Accordingly this Court should
apply the invited-error doctrine and affirm the judgment below without reaching
the question whether plain error exists
II
THE DISTRICT COURT DID NOT COMMIT PLAIN ERROR IN FAILING TO SUA SPONTE PREVENT DEFENDANTrsquoS TRIAL COUNSEL FROM
ELICITING THE CHALLENGED TESTIMONY
As noted above in Section IA if this Court determines that the invited-
error doctrine does not apply it should review admission of the challenged
statements for plain error United States v Namey 364 F3d 843 846 (6th Cir
2004)
-25shy
A The Plain-Error Doctrine
ldquoThe plain error doctrine mandates reversal only in exceptional
circumstances and only where the error is so plain that the trial judge and
prosecutor were derelict in countenancing itrdquo United States v Gardiner 463 F3d
445 459 (6th Cir 2006) (quoting United States v Carroll 26 F3d 1380 1383
(6th Cir 1994)) It ldquois to be used sparingly only in exceptional circumstances
and solely to avoid a miscarriage of justicerdquo United States v Phillips 516 F3d
479 487 (6th Cir 2008) (quoting United States v Cox 957 F2d 264 267 (6th
Cir 1992))
ldquoTo show plain error a defendant must establish the following (1) error
(2) that is plain and (3) that affects substantial rights If these three conditions are
met an appellate court may then exercise its discretion to notice a forfeited error
but only if (4) the error seriously affects the fairness integrity or public reputation
of judicial proceedingsrdquo United States v Arnold 486 F3d 177 194 (6th Cir
2007) cert denied 128 S Ct 871 (2008) (citation and internal quotations
omitted) ldquoThe phrase lsquoaffects substantial rightsrsquo lsquomeans prejudicial It must have
affected the outcome of the district court proceedingsrsquordquo United States v
(ldquo[I]ssues adverted to in a perfunctory manner unaccompanied by some effort at
developed argumentation are deemed waivedrdquo) (quoting McPherson v Kelsey
125 F3d 989 995-996 (6th Cir 1997))
-27shy
C The Third And Fourth Prongs Of The Plain-Error Doctrine Are Not Satisfied In This Case Because Other Evidence Supporting Defendantrsquos Conviction Is Overwhelming
Even if the issue were fully briefed a finding of plain error would be
improper because defendant cannot satisfy the third or fourth prongs of the
inquiry The third prong of the plain-error inquiry ndash ie the requirement that the
error ldquoaffects substantial rightsrdquo Arnold 486 F3d at 194 by ldquoaffect[ing] the
outcome of the district court proceedingsrdquo Mooneyham 473 F3d at 288 ndash is not
satisfied where the evidence against the defendant is overwhelming See
Mooneyham 473 F3d at 288 United States v Hines 398 F3d 713 718-719 (6th
Cir) cert denied 545 US 1134 (2005)
Likewise the fourth prong of the inquiry ndash ie the requirement that the
error be said to have ldquoseriously affect[ed] the fairness integrity or public
reputation of judicial proceedingsrdquo Arnold 486 F3d at 194 ndash also is not met when
other evidence is ldquooverwhelmingrdquo and ldquoessentially uncontrovertedrdquo See United
States v Cotton 535 US 625 632-633 (2002) Johnson v United States 520
US 461 469-470 (1997) Hines 398 F3d at 718-719 Indeed as both the
Supreme Court and this Court have recognized with regard to the fourth prong of
the inquiry in some cases ldquoit would be the reversal of a conviction which
would have th[e] effectrdquo of ldquoseriously affect[ing] the fairness integrity or public
-28shy
reputation of judicial proceedingsrdquo Johnson 520 US at 470 (internal quotations
omitted) (emphasis added) see also United States v McGhee 119 F3d 422 424shy
425 (6th Cir 1997) This is so because ldquo[r]eversal for error regardless of its effect
on the judgment encourages litigants to abuse the judicial process and bestirs the
public to ridicule itrdquo Johnson 520 US at 470 (citation and internal quotations
omitted) see also McGhee 119 F3d at 424-425
In view of the foregoing courts often cite the presence of overwhelming
evidence as the basis for concluding that a defendant has failed to meet both the
third and fourth prongs of the plain-error inquiry See Hines 398 F3d at 718-719
United States v Dedhia 134 F3d 802 809 (6th Cir) cert denied 523 US 1145
(1998) see also United States v Birk 453 F3d 893 898 (7th Cir 2006) United
States v Taylor 284 F3d 95 102 (1st Cir) cert denied 536 US 933 (2002)
This Court should follow that approach here as there is overwhelming evidence ndash
separate and apart from the challenged statements ndash to support defendantrsquos
conviction Specifically as explained more fully below testimony at trial
established that defendant (1) spoke openly to others during the weeks leading up
to the fire regarding his desire to force the Dosters from the neighborhood (2) was
the one who set the fire (3) confided to a friend afterward that he both set the fire
and performed the lawn job with the intent to drive the Dosters away because of
-29shy
their race and (4) told conflicting stories to the FBI during the course of its
investigation one of which included an admission that he was at least indirectly
involved in setting the fire
1 Defendantrsquos Statements Prior To The Fire
Two witnesses offered detailed accounts of conversations they had with
defendant prior to the date of the fire During these conversations defendant
expressed his desire to drive the Dosters from their home
Guy Wurts testified that in mid-July 2002 Defendant said something to the
effect of ldquoI got to get rid of these niggers Irsquoll find something to do I donrsquot know
what I got to get these niggers out [of] the neighborhoodrdquo (Wurts 417 Tr 208shy
209 Apx __) Wurts testified that defendant looked in the Dostersrsquo direction
when he made these comments and said the word ldquoniggerrdquo loud enough for the
Dosters ndash who were working in their yard at the time ndash to hear it (Wurts 417 Tr
202-203 209-210 Apx __) Wurts further testified that defendant ldquoseemed
seriousrdquo when he made these statements (Wurts 417 Tr 259 Apx __)
Debbie Daniely recounted similar statements by defendant Specifically
defendant told Daniely more than once that he was very upset about the Dosters
moving into the neighborhood saying something to the effect of ldquoniggers are
moving inrdquo and ldquo[w]e have to do something about itrdquo (Daniely 418 Tr 22-25
-30shy
Apx __) Defendant later admitted to the FBI that he made such a statement to
ldquo[t]his Court has lsquoroutinely concluded that such claims are best brought by a
defendant in a post-conviction proceeding under 28 USC sect 2255 so that the
-37shy
parties can develop an adequate record on the issuersquordquo Martinez 430 F3d at 338
(quoting United States v Brown 332 F3d 363 368 (6th Cir 2003)) ldquoThere is
however lsquoa narrow exceptionrsquo to this rule lsquowhen the existing record is adequate to
assess properly the merits of the claimrsquordquo United States v Hynes 467 F3d 951
969 (6th Cir 2006) (quoting United States v Franklin 415 F3d 537 555-556
(6th Cir 2005)) See also United States v Winkle 477 F3d 407 421 (6th Cir
2007) (ldquoThis Court typically will not review a claim of ineffective assistance on
direct appeal except in rare cases where the error is apparent from the existing
recordrdquo) (quoting United States v Lopez-Medina 461 F3d 724 737 (6th Cir
2006))
No basis exists for departing from the general rule against addressing
ineffective-assistance claims on direct appeal As this Court has noted ldquo[t]he trial
process contains a myriad of complex decisions that for strategic reasons are
sound when made but may appear unsound with the benefit of hindsightrdquo United
States v Davis 306 F3d 398 422 (6th Cir 2002) cert denied 537 US 1208
(2003) (quoting United States v Fortson 194 F3d 730 736 (6th Cir 1999))
Moreover ldquo[j]udicial scrutiny of counselrsquos performance must be highly
deferentialrdquo and ldquoa court must indulge a strong presumption that counselrsquos
conduct falls within the wide range of reasonable professional assistancerdquo
-38shy
Strickland v Washington 466 US 668 689 (1984) Thus to establish ineffective
assistance ldquothe defendant must overcome the presumption that under the
circumstances the challenged action lsquomight be considered sound trial strategyrsquordquo
Ibid (quoting Michel v Louisiana 350 US 91 101 (1955))
Here the decision by defendantrsquos retained trial counsel to elicit the
challenged statements during cross-examination of a government witness
undeniably constitutes an element of trial strategy that cannot be analyzed at this
stage of the proceedings In particular because this is a direct appeal there is no
evidence in the record regarding defense counselrsquos trial strategy This Court
repeatedly has refused to review ineffective-assistance claims under such
circumstances See eg Lopez-Medina 461 F3d at 737 (ldquoAbsent evidence
specifically addressing counselrsquos performance we cannot determine whether his
actions reflected a reasoned trial strategyrdquo) United States v Sullivan 431 F3d
976 986 (6th Cir 2005) (ldquoWithout an explanation from trial counsel as to why he
failed to call the alibi witness we have no basis to determine whether this decision
was the result of inadequate representation or reasonable trial strategyrdquo) United
States v Allison 59 F3d 43 47 (6th Cir) cert denied 516 US 1002 (1995)
(ldquo[T]he sparse record before this court does not reveal whether the attorneyrsquos
actions could be considered sound trial strategyrdquo) United States v Snow 48 F3d
-39shy
198 199 (6th Cir 1995) (ldquoThe record before this court simply is insufficient to
show whether the alleged wrongful acts could be considered sound trial
strategyrdquo) Thus defendantrsquos ineffective-assistance claim must be examined ndash if
at all ndash in a separate collateral proceeding brought pursuant to Section 2255
C The Evidence That Is Available In The Record Does Not Support A Finding Of Ineffective Assistance Of Counsel
As stated above the governmentrsquos position is that the current record is not
sufficient to permit this Court to address defendantrsquos ineffective-assistance claim
in this direct appeal However if the Court disagrees ndash or desires in the interest of
judicial economy to address defendantrsquos claim on direct appeal ndash it should reject
the claim because defendant fails to satisfy the second prong of the ineffective-
assistance inquiry11
11 The government does not concede that the first prong of the Strickland inquiry is satisfied in this case Rather as noted above it is not possible to resolve the issue at this point because the record does not indicate precisely what defendantrsquos trial counsel was thinking what his strategy was or why he elected to pursue certain lines of questioning In the event that defendant elects to bring a collateral challenge pursuant to Section 2255 the government reserves the right to address the first prong of Strickland inquiry and to further develop its argument as to the second prong The governmentrsquos decision not to do so in this brief is based on the incomplete nature of the record with regard to the Strickland inquiry and should not be construed as a waiver or forfeiture of any arguments relating to defendantrsquos ineffective-assistance claim
-40shy
1 Standard For Establishing Ineffective Assistance Of Counsel
To prove ineffective assistance of counsel under Strickland a defendant
first ldquomust demonstrate that counselrsquos performance fell lsquobelow the objective
standard of reasonablenessrsquordquo Ivory v Jackson 509 F3d 284 294 (6th Cir 2007)
cert denied 128 S Ct 1897 (2008) (quoting Strickland 466 US at 688)) ldquoThe
defendant must then demonstrate that lsquothere is a reasonable probability that but
for counselrsquos unprofessional errors the result of the proceeding would have been
different A reasonable probability is a probability sufficient to undermine the
confidence in the outcomersquordquo Ibid (quoting Strickland 466 US at 694)
Significantly this Court ldquoneed not decide whether defense counsel
performed deficiently if disposing of an ineffective-assistance claim on the ground
of lack of sufficient prejudice would be easierrdquo Hynes 467 F3d at 970 See also
Ivory 509 F3d at 294 (ldquo[A] court need not determine whether counselrsquos
performance was deficient before examining the prejudice suffered by the
defendant as a result of the alleged deficiencies If it is easier to dispose of
an ineffectiveness claim on the ground of lack of sufficient prejudice which we
expect will often be so that course should be followedrdquo) (quoting Strickland 466
US at 697)
-41shy
2 Defendant Is Unable To Demonstrate Sufficient Prejudice And Therefore Cannot Satisfy The Second Prong Of The Inquiry
ldquoTo show prejudice [defendant] must demonstrate that lsquothere is a
reasonable probability that but for counselrsquos unprofessional errors the result of
the proceeding would have been differentrsquordquo Harrison v Motley 478 F3d 750
756 (6th Cir) cert denied 128 S Ct 444 (2007) (quoting Strickland 466 US at
694)) As set forth above in Section IIC the evidence of defendantrsquos guilt is
overwhelming and the result therefore would not have been different absent the
challenged statements This Court repeatedly has determined that the second
prong of the Strickland inquiry is not met under such circumstances See eg
Harrison 478 F3d at 757 (defendant ldquofailed to show that his attorneysrsquo alleged
conflict of interest resulted in prejudicerdquo where ldquothe evidence admitted against
[defendant] at trial was lsquooverwhelmingrsquordquo) Hicks v Collins 384 F3d 204 215
(6th Cir 2004) cert denied 545 US 1155 (2005) (holding that defendant cannot
satisfy the second prong of Strickland where ldquothere was overwhelming evidence of
[defendantrsquos] guiltrdquo) Campbell v United States 364 F3d 727 736 (6th Cir
2004) cert denied 543 US 1119 (2005) (ldquoGiven the overwhelming evidence
establishing [defendantrsquos] guilt we believe that he would not have been able to
show that but for his attorneyrsquos failure to object to the prosecutorrsquos alleged
-42shy
misconduct the result would have been differentrdquo)
Accordingly even if this Court determines that the record is sufficient for it
to address defendantrsquos ineffective-assistance claim on direct appeal it should
reject this claim based on his failure to satisfy the second prong of the Strickland
inquiry
CONCLUSION
For the foregoing reasons this Court should affirm the judgment below
Respectfully submitted
GRACE CHUNG BECKER Acting Assistant Attorney General Civil Rights Division
DIANA K FLYNN DIRK C PHILLIPS Attorneys US Department of Justice Civil Rights Divisions Appellate Section Ben Franklin Station PO Box 14403 Washington DC 20044-4403 (202) 305-4876
CERTIFICATE OF COMPLIANCE
Pursuant to Federal Rule of Appellate Procedure 32(a)(7)(B) I hereby
certify that this brief is proportionally spaced 14-point Times New Roman font
Per WordPerfect 12 software the brief contains 9022 words excluding those
parts exempted by Federal Rule of Appellate Procedure 32(a)(7)(B)(iii)
DIRK C PHILLIPS Attorney
DATED June 18 2008
CERTIFICATE OF SERVICE
I hereby certify that on June 18 2008 a copy of the foregoing PROOF
BRIEF FOR THE UNITED STATES AS PLAINTIFF-APPELLEE was served by
first class mail postage prepaid on counsel of record at the following address
Joan E Morgan 2057 Orchard Lake Road Sylvan Lake MI 48320
DIRK C PHILLIPS Attorney
APPELLEErsquoS DESIGNATION OF APPENDIX CONTENTS
APPELLEErsquoS DESIGNATION OF APPENDIX CONTENTS
Appellee United States of America designates the following items to be
sidebar10 This too weighs against a finding that the interests of justice require
reversal See Neal 78 F3d at 904 (ldquoAt one point the prosecutor even tried to
warn [defendantrsquos] attorney about pursuing a line of questioning relating to the
defendantrsquos prior conduct but [defendantrsquos] attorney persisted Under these
circumstances [defendant] cannot complain of error which he himself has
invitedrdquo) (citation and internal quotations omitted)
Simply put this case precisely illustrates both the purpose behind the
10 The following exchange occurred when defense counsel elicited statements from the witness regarding what Ricky Cotton told the government
[Defense Counsel] Just tell us what Ricky Cotton said and let me -shytell us what obviously is hearsay Irsquoll sit down Tell us what Ricky Cotton -shy
[Government Counsel] Your Honor should we have a sidebar on this
[The Court] What for
[Government Counsel] Irsquom not sure to figure out where we are
[Defense Counsel] This is where we are what Ricky Cotton said
[The Court] Are you objecting
[Government Counsel] If he doesnrsquot have any objection to the witness saying what Ricky Cotton said thatrsquos fine
[Defense Counsel] Letrsquos go Tell us what Ricky Cotton said
(418 Tr 173-174 Apx __)
-24shy
invited-error doctrine and the need to enforce it strictly Defendantrsquos appeal does
not challenge any action by the government Nor does he take issue with the
district courtrsquos instructions to the jury the sufficiency of the evidence to support
his conviction or the reasonableness of his sentence He also does not contend the
district court improperly ruled on any objection made by his trial counsel Rather
his arguments on appeal arise solely from the actions of his own retained trial
counsel Such claims must be rejected on their face as a contrary rule would
create perverse incentives for defendants to invite some small amount of error in
every trial so as to create grounds for appeal Accordingly this Court should
apply the invited-error doctrine and affirm the judgment below without reaching
the question whether plain error exists
II
THE DISTRICT COURT DID NOT COMMIT PLAIN ERROR IN FAILING TO SUA SPONTE PREVENT DEFENDANTrsquoS TRIAL COUNSEL FROM
ELICITING THE CHALLENGED TESTIMONY
As noted above in Section IA if this Court determines that the invited-
error doctrine does not apply it should review admission of the challenged
statements for plain error United States v Namey 364 F3d 843 846 (6th Cir
2004)
-25shy
A The Plain-Error Doctrine
ldquoThe plain error doctrine mandates reversal only in exceptional
circumstances and only where the error is so plain that the trial judge and
prosecutor were derelict in countenancing itrdquo United States v Gardiner 463 F3d
445 459 (6th Cir 2006) (quoting United States v Carroll 26 F3d 1380 1383
(6th Cir 1994)) It ldquois to be used sparingly only in exceptional circumstances
and solely to avoid a miscarriage of justicerdquo United States v Phillips 516 F3d
479 487 (6th Cir 2008) (quoting United States v Cox 957 F2d 264 267 (6th
Cir 1992))
ldquoTo show plain error a defendant must establish the following (1) error
(2) that is plain and (3) that affects substantial rights If these three conditions are
met an appellate court may then exercise its discretion to notice a forfeited error
but only if (4) the error seriously affects the fairness integrity or public reputation
of judicial proceedingsrdquo United States v Arnold 486 F3d 177 194 (6th Cir
2007) cert denied 128 S Ct 871 (2008) (citation and internal quotations
omitted) ldquoThe phrase lsquoaffects substantial rightsrsquo lsquomeans prejudicial It must have
affected the outcome of the district court proceedingsrsquordquo United States v
(ldquo[I]ssues adverted to in a perfunctory manner unaccompanied by some effort at
developed argumentation are deemed waivedrdquo) (quoting McPherson v Kelsey
125 F3d 989 995-996 (6th Cir 1997))
-27shy
C The Third And Fourth Prongs Of The Plain-Error Doctrine Are Not Satisfied In This Case Because Other Evidence Supporting Defendantrsquos Conviction Is Overwhelming
Even if the issue were fully briefed a finding of plain error would be
improper because defendant cannot satisfy the third or fourth prongs of the
inquiry The third prong of the plain-error inquiry ndash ie the requirement that the
error ldquoaffects substantial rightsrdquo Arnold 486 F3d at 194 by ldquoaffect[ing] the
outcome of the district court proceedingsrdquo Mooneyham 473 F3d at 288 ndash is not
satisfied where the evidence against the defendant is overwhelming See
Mooneyham 473 F3d at 288 United States v Hines 398 F3d 713 718-719 (6th
Cir) cert denied 545 US 1134 (2005)
Likewise the fourth prong of the inquiry ndash ie the requirement that the
error be said to have ldquoseriously affect[ed] the fairness integrity or public
reputation of judicial proceedingsrdquo Arnold 486 F3d at 194 ndash also is not met when
other evidence is ldquooverwhelmingrdquo and ldquoessentially uncontrovertedrdquo See United
States v Cotton 535 US 625 632-633 (2002) Johnson v United States 520
US 461 469-470 (1997) Hines 398 F3d at 718-719 Indeed as both the
Supreme Court and this Court have recognized with regard to the fourth prong of
the inquiry in some cases ldquoit would be the reversal of a conviction which
would have th[e] effectrdquo of ldquoseriously affect[ing] the fairness integrity or public
-28shy
reputation of judicial proceedingsrdquo Johnson 520 US at 470 (internal quotations
omitted) (emphasis added) see also United States v McGhee 119 F3d 422 424shy
425 (6th Cir 1997) This is so because ldquo[r]eversal for error regardless of its effect
on the judgment encourages litigants to abuse the judicial process and bestirs the
public to ridicule itrdquo Johnson 520 US at 470 (citation and internal quotations
omitted) see also McGhee 119 F3d at 424-425
In view of the foregoing courts often cite the presence of overwhelming
evidence as the basis for concluding that a defendant has failed to meet both the
third and fourth prongs of the plain-error inquiry See Hines 398 F3d at 718-719
United States v Dedhia 134 F3d 802 809 (6th Cir) cert denied 523 US 1145
(1998) see also United States v Birk 453 F3d 893 898 (7th Cir 2006) United
States v Taylor 284 F3d 95 102 (1st Cir) cert denied 536 US 933 (2002)
This Court should follow that approach here as there is overwhelming evidence ndash
separate and apart from the challenged statements ndash to support defendantrsquos
conviction Specifically as explained more fully below testimony at trial
established that defendant (1) spoke openly to others during the weeks leading up
to the fire regarding his desire to force the Dosters from the neighborhood (2) was
the one who set the fire (3) confided to a friend afterward that he both set the fire
and performed the lawn job with the intent to drive the Dosters away because of
-29shy
their race and (4) told conflicting stories to the FBI during the course of its
investigation one of which included an admission that he was at least indirectly
involved in setting the fire
1 Defendantrsquos Statements Prior To The Fire
Two witnesses offered detailed accounts of conversations they had with
defendant prior to the date of the fire During these conversations defendant
expressed his desire to drive the Dosters from their home
Guy Wurts testified that in mid-July 2002 Defendant said something to the
effect of ldquoI got to get rid of these niggers Irsquoll find something to do I donrsquot know
what I got to get these niggers out [of] the neighborhoodrdquo (Wurts 417 Tr 208shy
209 Apx __) Wurts testified that defendant looked in the Dostersrsquo direction
when he made these comments and said the word ldquoniggerrdquo loud enough for the
Dosters ndash who were working in their yard at the time ndash to hear it (Wurts 417 Tr
202-203 209-210 Apx __) Wurts further testified that defendant ldquoseemed
seriousrdquo when he made these statements (Wurts 417 Tr 259 Apx __)
Debbie Daniely recounted similar statements by defendant Specifically
defendant told Daniely more than once that he was very upset about the Dosters
moving into the neighborhood saying something to the effect of ldquoniggers are
moving inrdquo and ldquo[w]e have to do something about itrdquo (Daniely 418 Tr 22-25
-30shy
Apx __) Defendant later admitted to the FBI that he made such a statement to
ldquo[t]his Court has lsquoroutinely concluded that such claims are best brought by a
defendant in a post-conviction proceeding under 28 USC sect 2255 so that the
-37shy
parties can develop an adequate record on the issuersquordquo Martinez 430 F3d at 338
(quoting United States v Brown 332 F3d 363 368 (6th Cir 2003)) ldquoThere is
however lsquoa narrow exceptionrsquo to this rule lsquowhen the existing record is adequate to
assess properly the merits of the claimrsquordquo United States v Hynes 467 F3d 951
969 (6th Cir 2006) (quoting United States v Franklin 415 F3d 537 555-556
(6th Cir 2005)) See also United States v Winkle 477 F3d 407 421 (6th Cir
2007) (ldquoThis Court typically will not review a claim of ineffective assistance on
direct appeal except in rare cases where the error is apparent from the existing
recordrdquo) (quoting United States v Lopez-Medina 461 F3d 724 737 (6th Cir
2006))
No basis exists for departing from the general rule against addressing
ineffective-assistance claims on direct appeal As this Court has noted ldquo[t]he trial
process contains a myriad of complex decisions that for strategic reasons are
sound when made but may appear unsound with the benefit of hindsightrdquo United
States v Davis 306 F3d 398 422 (6th Cir 2002) cert denied 537 US 1208
(2003) (quoting United States v Fortson 194 F3d 730 736 (6th Cir 1999))
Moreover ldquo[j]udicial scrutiny of counselrsquos performance must be highly
deferentialrdquo and ldquoa court must indulge a strong presumption that counselrsquos
conduct falls within the wide range of reasonable professional assistancerdquo
-38shy
Strickland v Washington 466 US 668 689 (1984) Thus to establish ineffective
assistance ldquothe defendant must overcome the presumption that under the
circumstances the challenged action lsquomight be considered sound trial strategyrsquordquo
Ibid (quoting Michel v Louisiana 350 US 91 101 (1955))
Here the decision by defendantrsquos retained trial counsel to elicit the
challenged statements during cross-examination of a government witness
undeniably constitutes an element of trial strategy that cannot be analyzed at this
stage of the proceedings In particular because this is a direct appeal there is no
evidence in the record regarding defense counselrsquos trial strategy This Court
repeatedly has refused to review ineffective-assistance claims under such
circumstances See eg Lopez-Medina 461 F3d at 737 (ldquoAbsent evidence
specifically addressing counselrsquos performance we cannot determine whether his
actions reflected a reasoned trial strategyrdquo) United States v Sullivan 431 F3d
976 986 (6th Cir 2005) (ldquoWithout an explanation from trial counsel as to why he
failed to call the alibi witness we have no basis to determine whether this decision
was the result of inadequate representation or reasonable trial strategyrdquo) United
States v Allison 59 F3d 43 47 (6th Cir) cert denied 516 US 1002 (1995)
(ldquo[T]he sparse record before this court does not reveal whether the attorneyrsquos
actions could be considered sound trial strategyrdquo) United States v Snow 48 F3d
-39shy
198 199 (6th Cir 1995) (ldquoThe record before this court simply is insufficient to
show whether the alleged wrongful acts could be considered sound trial
strategyrdquo) Thus defendantrsquos ineffective-assistance claim must be examined ndash if
at all ndash in a separate collateral proceeding brought pursuant to Section 2255
C The Evidence That Is Available In The Record Does Not Support A Finding Of Ineffective Assistance Of Counsel
As stated above the governmentrsquos position is that the current record is not
sufficient to permit this Court to address defendantrsquos ineffective-assistance claim
in this direct appeal However if the Court disagrees ndash or desires in the interest of
judicial economy to address defendantrsquos claim on direct appeal ndash it should reject
the claim because defendant fails to satisfy the second prong of the ineffective-
assistance inquiry11
11 The government does not concede that the first prong of the Strickland inquiry is satisfied in this case Rather as noted above it is not possible to resolve the issue at this point because the record does not indicate precisely what defendantrsquos trial counsel was thinking what his strategy was or why he elected to pursue certain lines of questioning In the event that defendant elects to bring a collateral challenge pursuant to Section 2255 the government reserves the right to address the first prong of Strickland inquiry and to further develop its argument as to the second prong The governmentrsquos decision not to do so in this brief is based on the incomplete nature of the record with regard to the Strickland inquiry and should not be construed as a waiver or forfeiture of any arguments relating to defendantrsquos ineffective-assistance claim
-40shy
1 Standard For Establishing Ineffective Assistance Of Counsel
To prove ineffective assistance of counsel under Strickland a defendant
first ldquomust demonstrate that counselrsquos performance fell lsquobelow the objective
standard of reasonablenessrsquordquo Ivory v Jackson 509 F3d 284 294 (6th Cir 2007)
cert denied 128 S Ct 1897 (2008) (quoting Strickland 466 US at 688)) ldquoThe
defendant must then demonstrate that lsquothere is a reasonable probability that but
for counselrsquos unprofessional errors the result of the proceeding would have been
different A reasonable probability is a probability sufficient to undermine the
confidence in the outcomersquordquo Ibid (quoting Strickland 466 US at 694)
Significantly this Court ldquoneed not decide whether defense counsel
performed deficiently if disposing of an ineffective-assistance claim on the ground
of lack of sufficient prejudice would be easierrdquo Hynes 467 F3d at 970 See also
Ivory 509 F3d at 294 (ldquo[A] court need not determine whether counselrsquos
performance was deficient before examining the prejudice suffered by the
defendant as a result of the alleged deficiencies If it is easier to dispose of
an ineffectiveness claim on the ground of lack of sufficient prejudice which we
expect will often be so that course should be followedrdquo) (quoting Strickland 466
US at 697)
-41shy
2 Defendant Is Unable To Demonstrate Sufficient Prejudice And Therefore Cannot Satisfy The Second Prong Of The Inquiry
ldquoTo show prejudice [defendant] must demonstrate that lsquothere is a
reasonable probability that but for counselrsquos unprofessional errors the result of
the proceeding would have been differentrsquordquo Harrison v Motley 478 F3d 750
756 (6th Cir) cert denied 128 S Ct 444 (2007) (quoting Strickland 466 US at
694)) As set forth above in Section IIC the evidence of defendantrsquos guilt is
overwhelming and the result therefore would not have been different absent the
challenged statements This Court repeatedly has determined that the second
prong of the Strickland inquiry is not met under such circumstances See eg
Harrison 478 F3d at 757 (defendant ldquofailed to show that his attorneysrsquo alleged
conflict of interest resulted in prejudicerdquo where ldquothe evidence admitted against
[defendant] at trial was lsquooverwhelmingrsquordquo) Hicks v Collins 384 F3d 204 215
(6th Cir 2004) cert denied 545 US 1155 (2005) (holding that defendant cannot
satisfy the second prong of Strickland where ldquothere was overwhelming evidence of
[defendantrsquos] guiltrdquo) Campbell v United States 364 F3d 727 736 (6th Cir
2004) cert denied 543 US 1119 (2005) (ldquoGiven the overwhelming evidence
establishing [defendantrsquos] guilt we believe that he would not have been able to
show that but for his attorneyrsquos failure to object to the prosecutorrsquos alleged
-42shy
misconduct the result would have been differentrdquo)
Accordingly even if this Court determines that the record is sufficient for it
to address defendantrsquos ineffective-assistance claim on direct appeal it should
reject this claim based on his failure to satisfy the second prong of the Strickland
inquiry
CONCLUSION
For the foregoing reasons this Court should affirm the judgment below
Respectfully submitted
GRACE CHUNG BECKER Acting Assistant Attorney General Civil Rights Division
DIANA K FLYNN DIRK C PHILLIPS Attorneys US Department of Justice Civil Rights Divisions Appellate Section Ben Franklin Station PO Box 14403 Washington DC 20044-4403 (202) 305-4876
CERTIFICATE OF COMPLIANCE
Pursuant to Federal Rule of Appellate Procedure 32(a)(7)(B) I hereby
certify that this brief is proportionally spaced 14-point Times New Roman font
Per WordPerfect 12 software the brief contains 9022 words excluding those
parts exempted by Federal Rule of Appellate Procedure 32(a)(7)(B)(iii)
DIRK C PHILLIPS Attorney
DATED June 18 2008
CERTIFICATE OF SERVICE
I hereby certify that on June 18 2008 a copy of the foregoing PROOF
BRIEF FOR THE UNITED STATES AS PLAINTIFF-APPELLEE was served by
first class mail postage prepaid on counsel of record at the following address
Joan E Morgan 2057 Orchard Lake Road Sylvan Lake MI 48320
DIRK C PHILLIPS Attorney
APPELLEErsquoS DESIGNATION OF APPENDIX CONTENTS
APPELLEErsquoS DESIGNATION OF APPENDIX CONTENTS
Appellee United States of America designates the following items to be
(ldquo[I]ssues adverted to in a perfunctory manner unaccompanied by some effort at
developed argumentation are deemed waivedrdquo) (quoting McPherson v Kelsey
125 F3d 989 995-996 (6th Cir 1997))
-27shy
C The Third And Fourth Prongs Of The Plain-Error Doctrine Are Not Satisfied In This Case Because Other Evidence Supporting Defendantrsquos Conviction Is Overwhelming
Even if the issue were fully briefed a finding of plain error would be
improper because defendant cannot satisfy the third or fourth prongs of the
inquiry The third prong of the plain-error inquiry ndash ie the requirement that the
error ldquoaffects substantial rightsrdquo Arnold 486 F3d at 194 by ldquoaffect[ing] the
outcome of the district court proceedingsrdquo Mooneyham 473 F3d at 288 ndash is not
satisfied where the evidence against the defendant is overwhelming See
Mooneyham 473 F3d at 288 United States v Hines 398 F3d 713 718-719 (6th
Cir) cert denied 545 US 1134 (2005)
Likewise the fourth prong of the inquiry ndash ie the requirement that the
error be said to have ldquoseriously affect[ed] the fairness integrity or public
reputation of judicial proceedingsrdquo Arnold 486 F3d at 194 ndash also is not met when
other evidence is ldquooverwhelmingrdquo and ldquoessentially uncontrovertedrdquo See United
States v Cotton 535 US 625 632-633 (2002) Johnson v United States 520
US 461 469-470 (1997) Hines 398 F3d at 718-719 Indeed as both the
Supreme Court and this Court have recognized with regard to the fourth prong of
the inquiry in some cases ldquoit would be the reversal of a conviction which
would have th[e] effectrdquo of ldquoseriously affect[ing] the fairness integrity or public
-28shy
reputation of judicial proceedingsrdquo Johnson 520 US at 470 (internal quotations
omitted) (emphasis added) see also United States v McGhee 119 F3d 422 424shy
425 (6th Cir 1997) This is so because ldquo[r]eversal for error regardless of its effect
on the judgment encourages litigants to abuse the judicial process and bestirs the
public to ridicule itrdquo Johnson 520 US at 470 (citation and internal quotations
omitted) see also McGhee 119 F3d at 424-425
In view of the foregoing courts often cite the presence of overwhelming
evidence as the basis for concluding that a defendant has failed to meet both the
third and fourth prongs of the plain-error inquiry See Hines 398 F3d at 718-719
United States v Dedhia 134 F3d 802 809 (6th Cir) cert denied 523 US 1145
(1998) see also United States v Birk 453 F3d 893 898 (7th Cir 2006) United
States v Taylor 284 F3d 95 102 (1st Cir) cert denied 536 US 933 (2002)
This Court should follow that approach here as there is overwhelming evidence ndash
separate and apart from the challenged statements ndash to support defendantrsquos
conviction Specifically as explained more fully below testimony at trial
established that defendant (1) spoke openly to others during the weeks leading up
to the fire regarding his desire to force the Dosters from the neighborhood (2) was
the one who set the fire (3) confided to a friend afterward that he both set the fire
and performed the lawn job with the intent to drive the Dosters away because of
-29shy
their race and (4) told conflicting stories to the FBI during the course of its
investigation one of which included an admission that he was at least indirectly
involved in setting the fire
1 Defendantrsquos Statements Prior To The Fire
Two witnesses offered detailed accounts of conversations they had with
defendant prior to the date of the fire During these conversations defendant
expressed his desire to drive the Dosters from their home
Guy Wurts testified that in mid-July 2002 Defendant said something to the
effect of ldquoI got to get rid of these niggers Irsquoll find something to do I donrsquot know
what I got to get these niggers out [of] the neighborhoodrdquo (Wurts 417 Tr 208shy
209 Apx __) Wurts testified that defendant looked in the Dostersrsquo direction
when he made these comments and said the word ldquoniggerrdquo loud enough for the
Dosters ndash who were working in their yard at the time ndash to hear it (Wurts 417 Tr
202-203 209-210 Apx __) Wurts further testified that defendant ldquoseemed
seriousrdquo when he made these statements (Wurts 417 Tr 259 Apx __)
Debbie Daniely recounted similar statements by defendant Specifically
defendant told Daniely more than once that he was very upset about the Dosters
moving into the neighborhood saying something to the effect of ldquoniggers are
moving inrdquo and ldquo[w]e have to do something about itrdquo (Daniely 418 Tr 22-25
-30shy
Apx __) Defendant later admitted to the FBI that he made such a statement to
ldquo[t]his Court has lsquoroutinely concluded that such claims are best brought by a
defendant in a post-conviction proceeding under 28 USC sect 2255 so that the
-37shy
parties can develop an adequate record on the issuersquordquo Martinez 430 F3d at 338
(quoting United States v Brown 332 F3d 363 368 (6th Cir 2003)) ldquoThere is
however lsquoa narrow exceptionrsquo to this rule lsquowhen the existing record is adequate to
assess properly the merits of the claimrsquordquo United States v Hynes 467 F3d 951
969 (6th Cir 2006) (quoting United States v Franklin 415 F3d 537 555-556
(6th Cir 2005)) See also United States v Winkle 477 F3d 407 421 (6th Cir
2007) (ldquoThis Court typically will not review a claim of ineffective assistance on
direct appeal except in rare cases where the error is apparent from the existing
recordrdquo) (quoting United States v Lopez-Medina 461 F3d 724 737 (6th Cir
2006))
No basis exists for departing from the general rule against addressing
ineffective-assistance claims on direct appeal As this Court has noted ldquo[t]he trial
process contains a myriad of complex decisions that for strategic reasons are
sound when made but may appear unsound with the benefit of hindsightrdquo United
States v Davis 306 F3d 398 422 (6th Cir 2002) cert denied 537 US 1208
(2003) (quoting United States v Fortson 194 F3d 730 736 (6th Cir 1999))
Moreover ldquo[j]udicial scrutiny of counselrsquos performance must be highly
deferentialrdquo and ldquoa court must indulge a strong presumption that counselrsquos
conduct falls within the wide range of reasonable professional assistancerdquo
-38shy
Strickland v Washington 466 US 668 689 (1984) Thus to establish ineffective
assistance ldquothe defendant must overcome the presumption that under the
circumstances the challenged action lsquomight be considered sound trial strategyrsquordquo
Ibid (quoting Michel v Louisiana 350 US 91 101 (1955))
Here the decision by defendantrsquos retained trial counsel to elicit the
challenged statements during cross-examination of a government witness
undeniably constitutes an element of trial strategy that cannot be analyzed at this
stage of the proceedings In particular because this is a direct appeal there is no
evidence in the record regarding defense counselrsquos trial strategy This Court
repeatedly has refused to review ineffective-assistance claims under such
circumstances See eg Lopez-Medina 461 F3d at 737 (ldquoAbsent evidence
specifically addressing counselrsquos performance we cannot determine whether his
actions reflected a reasoned trial strategyrdquo) United States v Sullivan 431 F3d
976 986 (6th Cir 2005) (ldquoWithout an explanation from trial counsel as to why he
failed to call the alibi witness we have no basis to determine whether this decision
was the result of inadequate representation or reasonable trial strategyrdquo) United
States v Allison 59 F3d 43 47 (6th Cir) cert denied 516 US 1002 (1995)
(ldquo[T]he sparse record before this court does not reveal whether the attorneyrsquos
actions could be considered sound trial strategyrdquo) United States v Snow 48 F3d
-39shy
198 199 (6th Cir 1995) (ldquoThe record before this court simply is insufficient to
show whether the alleged wrongful acts could be considered sound trial
strategyrdquo) Thus defendantrsquos ineffective-assistance claim must be examined ndash if
at all ndash in a separate collateral proceeding brought pursuant to Section 2255
C The Evidence That Is Available In The Record Does Not Support A Finding Of Ineffective Assistance Of Counsel
As stated above the governmentrsquos position is that the current record is not
sufficient to permit this Court to address defendantrsquos ineffective-assistance claim
in this direct appeal However if the Court disagrees ndash or desires in the interest of
judicial economy to address defendantrsquos claim on direct appeal ndash it should reject
the claim because defendant fails to satisfy the second prong of the ineffective-
assistance inquiry11
11 The government does not concede that the first prong of the Strickland inquiry is satisfied in this case Rather as noted above it is not possible to resolve the issue at this point because the record does not indicate precisely what defendantrsquos trial counsel was thinking what his strategy was or why he elected to pursue certain lines of questioning In the event that defendant elects to bring a collateral challenge pursuant to Section 2255 the government reserves the right to address the first prong of Strickland inquiry and to further develop its argument as to the second prong The governmentrsquos decision not to do so in this brief is based on the incomplete nature of the record with regard to the Strickland inquiry and should not be construed as a waiver or forfeiture of any arguments relating to defendantrsquos ineffective-assistance claim
-40shy
1 Standard For Establishing Ineffective Assistance Of Counsel
To prove ineffective assistance of counsel under Strickland a defendant
first ldquomust demonstrate that counselrsquos performance fell lsquobelow the objective
standard of reasonablenessrsquordquo Ivory v Jackson 509 F3d 284 294 (6th Cir 2007)
cert denied 128 S Ct 1897 (2008) (quoting Strickland 466 US at 688)) ldquoThe
defendant must then demonstrate that lsquothere is a reasonable probability that but
for counselrsquos unprofessional errors the result of the proceeding would have been
different A reasonable probability is a probability sufficient to undermine the
confidence in the outcomersquordquo Ibid (quoting Strickland 466 US at 694)
Significantly this Court ldquoneed not decide whether defense counsel
performed deficiently if disposing of an ineffective-assistance claim on the ground
of lack of sufficient prejudice would be easierrdquo Hynes 467 F3d at 970 See also
Ivory 509 F3d at 294 (ldquo[A] court need not determine whether counselrsquos
performance was deficient before examining the prejudice suffered by the
defendant as a result of the alleged deficiencies If it is easier to dispose of
an ineffectiveness claim on the ground of lack of sufficient prejudice which we
expect will often be so that course should be followedrdquo) (quoting Strickland 466
US at 697)
-41shy
2 Defendant Is Unable To Demonstrate Sufficient Prejudice And Therefore Cannot Satisfy The Second Prong Of The Inquiry
ldquoTo show prejudice [defendant] must demonstrate that lsquothere is a
reasonable probability that but for counselrsquos unprofessional errors the result of
the proceeding would have been differentrsquordquo Harrison v Motley 478 F3d 750
756 (6th Cir) cert denied 128 S Ct 444 (2007) (quoting Strickland 466 US at
694)) As set forth above in Section IIC the evidence of defendantrsquos guilt is
overwhelming and the result therefore would not have been different absent the
challenged statements This Court repeatedly has determined that the second
prong of the Strickland inquiry is not met under such circumstances See eg
Harrison 478 F3d at 757 (defendant ldquofailed to show that his attorneysrsquo alleged
conflict of interest resulted in prejudicerdquo where ldquothe evidence admitted against
[defendant] at trial was lsquooverwhelmingrsquordquo) Hicks v Collins 384 F3d 204 215
(6th Cir 2004) cert denied 545 US 1155 (2005) (holding that defendant cannot
satisfy the second prong of Strickland where ldquothere was overwhelming evidence of
[defendantrsquos] guiltrdquo) Campbell v United States 364 F3d 727 736 (6th Cir
2004) cert denied 543 US 1119 (2005) (ldquoGiven the overwhelming evidence
establishing [defendantrsquos] guilt we believe that he would not have been able to
show that but for his attorneyrsquos failure to object to the prosecutorrsquos alleged
-42shy
misconduct the result would have been differentrdquo)
Accordingly even if this Court determines that the record is sufficient for it
to address defendantrsquos ineffective-assistance claim on direct appeal it should
reject this claim based on his failure to satisfy the second prong of the Strickland
inquiry
CONCLUSION
For the foregoing reasons this Court should affirm the judgment below
Respectfully submitted
GRACE CHUNG BECKER Acting Assistant Attorney General Civil Rights Division
DIANA K FLYNN DIRK C PHILLIPS Attorneys US Department of Justice Civil Rights Divisions Appellate Section Ben Franklin Station PO Box 14403 Washington DC 20044-4403 (202) 305-4876
CERTIFICATE OF COMPLIANCE
Pursuant to Federal Rule of Appellate Procedure 32(a)(7)(B) I hereby
certify that this brief is proportionally spaced 14-point Times New Roman font
Per WordPerfect 12 software the brief contains 9022 words excluding those
parts exempted by Federal Rule of Appellate Procedure 32(a)(7)(B)(iii)
DIRK C PHILLIPS Attorney
DATED June 18 2008
CERTIFICATE OF SERVICE
I hereby certify that on June 18 2008 a copy of the foregoing PROOF
BRIEF FOR THE UNITED STATES AS PLAINTIFF-APPELLEE was served by
first class mail postage prepaid on counsel of record at the following address
Joan E Morgan 2057 Orchard Lake Road Sylvan Lake MI 48320
DIRK C PHILLIPS Attorney
APPELLEErsquoS DESIGNATION OF APPENDIX CONTENTS
APPELLEErsquoS DESIGNATION OF APPENDIX CONTENTS
Appellee United States of America designates the following items to be
(ldquo[I]ssues adverted to in a perfunctory manner unaccompanied by some effort at
developed argumentation are deemed waivedrdquo) (quoting McPherson v Kelsey
125 F3d 989 995-996 (6th Cir 1997))
-27shy
C The Third And Fourth Prongs Of The Plain-Error Doctrine Are Not Satisfied In This Case Because Other Evidence Supporting Defendantrsquos Conviction Is Overwhelming
Even if the issue were fully briefed a finding of plain error would be
improper because defendant cannot satisfy the third or fourth prongs of the
inquiry The third prong of the plain-error inquiry ndash ie the requirement that the
error ldquoaffects substantial rightsrdquo Arnold 486 F3d at 194 by ldquoaffect[ing] the
outcome of the district court proceedingsrdquo Mooneyham 473 F3d at 288 ndash is not
satisfied where the evidence against the defendant is overwhelming See
Mooneyham 473 F3d at 288 United States v Hines 398 F3d 713 718-719 (6th
Cir) cert denied 545 US 1134 (2005)
Likewise the fourth prong of the inquiry ndash ie the requirement that the
error be said to have ldquoseriously affect[ed] the fairness integrity or public
reputation of judicial proceedingsrdquo Arnold 486 F3d at 194 ndash also is not met when
other evidence is ldquooverwhelmingrdquo and ldquoessentially uncontrovertedrdquo See United
States v Cotton 535 US 625 632-633 (2002) Johnson v United States 520
US 461 469-470 (1997) Hines 398 F3d at 718-719 Indeed as both the
Supreme Court and this Court have recognized with regard to the fourth prong of
the inquiry in some cases ldquoit would be the reversal of a conviction which
would have th[e] effectrdquo of ldquoseriously affect[ing] the fairness integrity or public
-28shy
reputation of judicial proceedingsrdquo Johnson 520 US at 470 (internal quotations
omitted) (emphasis added) see also United States v McGhee 119 F3d 422 424shy
425 (6th Cir 1997) This is so because ldquo[r]eversal for error regardless of its effect
on the judgment encourages litigants to abuse the judicial process and bestirs the
public to ridicule itrdquo Johnson 520 US at 470 (citation and internal quotations
omitted) see also McGhee 119 F3d at 424-425
In view of the foregoing courts often cite the presence of overwhelming
evidence as the basis for concluding that a defendant has failed to meet both the
third and fourth prongs of the plain-error inquiry See Hines 398 F3d at 718-719
United States v Dedhia 134 F3d 802 809 (6th Cir) cert denied 523 US 1145
(1998) see also United States v Birk 453 F3d 893 898 (7th Cir 2006) United
States v Taylor 284 F3d 95 102 (1st Cir) cert denied 536 US 933 (2002)
This Court should follow that approach here as there is overwhelming evidence ndash
separate and apart from the challenged statements ndash to support defendantrsquos
conviction Specifically as explained more fully below testimony at trial
established that defendant (1) spoke openly to others during the weeks leading up
to the fire regarding his desire to force the Dosters from the neighborhood (2) was
the one who set the fire (3) confided to a friend afterward that he both set the fire
and performed the lawn job with the intent to drive the Dosters away because of
-29shy
their race and (4) told conflicting stories to the FBI during the course of its
investigation one of which included an admission that he was at least indirectly
involved in setting the fire
1 Defendantrsquos Statements Prior To The Fire
Two witnesses offered detailed accounts of conversations they had with
defendant prior to the date of the fire During these conversations defendant
expressed his desire to drive the Dosters from their home
Guy Wurts testified that in mid-July 2002 Defendant said something to the
effect of ldquoI got to get rid of these niggers Irsquoll find something to do I donrsquot know
what I got to get these niggers out [of] the neighborhoodrdquo (Wurts 417 Tr 208shy
209 Apx __) Wurts testified that defendant looked in the Dostersrsquo direction
when he made these comments and said the word ldquoniggerrdquo loud enough for the
Dosters ndash who were working in their yard at the time ndash to hear it (Wurts 417 Tr
202-203 209-210 Apx __) Wurts further testified that defendant ldquoseemed
seriousrdquo when he made these statements (Wurts 417 Tr 259 Apx __)
Debbie Daniely recounted similar statements by defendant Specifically
defendant told Daniely more than once that he was very upset about the Dosters
moving into the neighborhood saying something to the effect of ldquoniggers are
moving inrdquo and ldquo[w]e have to do something about itrdquo (Daniely 418 Tr 22-25
-30shy
Apx __) Defendant later admitted to the FBI that he made such a statement to
ldquo[t]his Court has lsquoroutinely concluded that such claims are best brought by a
defendant in a post-conviction proceeding under 28 USC sect 2255 so that the
-37shy
parties can develop an adequate record on the issuersquordquo Martinez 430 F3d at 338
(quoting United States v Brown 332 F3d 363 368 (6th Cir 2003)) ldquoThere is
however lsquoa narrow exceptionrsquo to this rule lsquowhen the existing record is adequate to
assess properly the merits of the claimrsquordquo United States v Hynes 467 F3d 951
969 (6th Cir 2006) (quoting United States v Franklin 415 F3d 537 555-556
(6th Cir 2005)) See also United States v Winkle 477 F3d 407 421 (6th Cir
2007) (ldquoThis Court typically will not review a claim of ineffective assistance on
direct appeal except in rare cases where the error is apparent from the existing
recordrdquo) (quoting United States v Lopez-Medina 461 F3d 724 737 (6th Cir
2006))
No basis exists for departing from the general rule against addressing
ineffective-assistance claims on direct appeal As this Court has noted ldquo[t]he trial
process contains a myriad of complex decisions that for strategic reasons are
sound when made but may appear unsound with the benefit of hindsightrdquo United
States v Davis 306 F3d 398 422 (6th Cir 2002) cert denied 537 US 1208
(2003) (quoting United States v Fortson 194 F3d 730 736 (6th Cir 1999))
Moreover ldquo[j]udicial scrutiny of counselrsquos performance must be highly
deferentialrdquo and ldquoa court must indulge a strong presumption that counselrsquos
conduct falls within the wide range of reasonable professional assistancerdquo
-38shy
Strickland v Washington 466 US 668 689 (1984) Thus to establish ineffective
assistance ldquothe defendant must overcome the presumption that under the
circumstances the challenged action lsquomight be considered sound trial strategyrsquordquo
Ibid (quoting Michel v Louisiana 350 US 91 101 (1955))
Here the decision by defendantrsquos retained trial counsel to elicit the
challenged statements during cross-examination of a government witness
undeniably constitutes an element of trial strategy that cannot be analyzed at this
stage of the proceedings In particular because this is a direct appeal there is no
evidence in the record regarding defense counselrsquos trial strategy This Court
repeatedly has refused to review ineffective-assistance claims under such
circumstances See eg Lopez-Medina 461 F3d at 737 (ldquoAbsent evidence
specifically addressing counselrsquos performance we cannot determine whether his
actions reflected a reasoned trial strategyrdquo) United States v Sullivan 431 F3d
976 986 (6th Cir 2005) (ldquoWithout an explanation from trial counsel as to why he
failed to call the alibi witness we have no basis to determine whether this decision
was the result of inadequate representation or reasonable trial strategyrdquo) United
States v Allison 59 F3d 43 47 (6th Cir) cert denied 516 US 1002 (1995)
(ldquo[T]he sparse record before this court does not reveal whether the attorneyrsquos
actions could be considered sound trial strategyrdquo) United States v Snow 48 F3d
-39shy
198 199 (6th Cir 1995) (ldquoThe record before this court simply is insufficient to
show whether the alleged wrongful acts could be considered sound trial
strategyrdquo) Thus defendantrsquos ineffective-assistance claim must be examined ndash if
at all ndash in a separate collateral proceeding brought pursuant to Section 2255
C The Evidence That Is Available In The Record Does Not Support A Finding Of Ineffective Assistance Of Counsel
As stated above the governmentrsquos position is that the current record is not
sufficient to permit this Court to address defendantrsquos ineffective-assistance claim
in this direct appeal However if the Court disagrees ndash or desires in the interest of
judicial economy to address defendantrsquos claim on direct appeal ndash it should reject
the claim because defendant fails to satisfy the second prong of the ineffective-
assistance inquiry11
11 The government does not concede that the first prong of the Strickland inquiry is satisfied in this case Rather as noted above it is not possible to resolve the issue at this point because the record does not indicate precisely what defendantrsquos trial counsel was thinking what his strategy was or why he elected to pursue certain lines of questioning In the event that defendant elects to bring a collateral challenge pursuant to Section 2255 the government reserves the right to address the first prong of Strickland inquiry and to further develop its argument as to the second prong The governmentrsquos decision not to do so in this brief is based on the incomplete nature of the record with regard to the Strickland inquiry and should not be construed as a waiver or forfeiture of any arguments relating to defendantrsquos ineffective-assistance claim
-40shy
1 Standard For Establishing Ineffective Assistance Of Counsel
To prove ineffective assistance of counsel under Strickland a defendant
first ldquomust demonstrate that counselrsquos performance fell lsquobelow the objective
standard of reasonablenessrsquordquo Ivory v Jackson 509 F3d 284 294 (6th Cir 2007)
cert denied 128 S Ct 1897 (2008) (quoting Strickland 466 US at 688)) ldquoThe
defendant must then demonstrate that lsquothere is a reasonable probability that but
for counselrsquos unprofessional errors the result of the proceeding would have been
different A reasonable probability is a probability sufficient to undermine the
confidence in the outcomersquordquo Ibid (quoting Strickland 466 US at 694)
Significantly this Court ldquoneed not decide whether defense counsel
performed deficiently if disposing of an ineffective-assistance claim on the ground
of lack of sufficient prejudice would be easierrdquo Hynes 467 F3d at 970 See also
Ivory 509 F3d at 294 (ldquo[A] court need not determine whether counselrsquos
performance was deficient before examining the prejudice suffered by the
defendant as a result of the alleged deficiencies If it is easier to dispose of
an ineffectiveness claim on the ground of lack of sufficient prejudice which we
expect will often be so that course should be followedrdquo) (quoting Strickland 466
US at 697)
-41shy
2 Defendant Is Unable To Demonstrate Sufficient Prejudice And Therefore Cannot Satisfy The Second Prong Of The Inquiry
ldquoTo show prejudice [defendant] must demonstrate that lsquothere is a
reasonable probability that but for counselrsquos unprofessional errors the result of
the proceeding would have been differentrsquordquo Harrison v Motley 478 F3d 750
756 (6th Cir) cert denied 128 S Ct 444 (2007) (quoting Strickland 466 US at
694)) As set forth above in Section IIC the evidence of defendantrsquos guilt is
overwhelming and the result therefore would not have been different absent the
challenged statements This Court repeatedly has determined that the second
prong of the Strickland inquiry is not met under such circumstances See eg
Harrison 478 F3d at 757 (defendant ldquofailed to show that his attorneysrsquo alleged
conflict of interest resulted in prejudicerdquo where ldquothe evidence admitted against
[defendant] at trial was lsquooverwhelmingrsquordquo) Hicks v Collins 384 F3d 204 215
(6th Cir 2004) cert denied 545 US 1155 (2005) (holding that defendant cannot
satisfy the second prong of Strickland where ldquothere was overwhelming evidence of
[defendantrsquos] guiltrdquo) Campbell v United States 364 F3d 727 736 (6th Cir
2004) cert denied 543 US 1119 (2005) (ldquoGiven the overwhelming evidence
establishing [defendantrsquos] guilt we believe that he would not have been able to
show that but for his attorneyrsquos failure to object to the prosecutorrsquos alleged
-42shy
misconduct the result would have been differentrdquo)
Accordingly even if this Court determines that the record is sufficient for it
to address defendantrsquos ineffective-assistance claim on direct appeal it should
reject this claim based on his failure to satisfy the second prong of the Strickland
inquiry
CONCLUSION
For the foregoing reasons this Court should affirm the judgment below
Respectfully submitted
GRACE CHUNG BECKER Acting Assistant Attorney General Civil Rights Division
DIANA K FLYNN DIRK C PHILLIPS Attorneys US Department of Justice Civil Rights Divisions Appellate Section Ben Franklin Station PO Box 14403 Washington DC 20044-4403 (202) 305-4876
CERTIFICATE OF COMPLIANCE
Pursuant to Federal Rule of Appellate Procedure 32(a)(7)(B) I hereby
certify that this brief is proportionally spaced 14-point Times New Roman font
Per WordPerfect 12 software the brief contains 9022 words excluding those
parts exempted by Federal Rule of Appellate Procedure 32(a)(7)(B)(iii)
DIRK C PHILLIPS Attorney
DATED June 18 2008
CERTIFICATE OF SERVICE
I hereby certify that on June 18 2008 a copy of the foregoing PROOF
BRIEF FOR THE UNITED STATES AS PLAINTIFF-APPELLEE was served by
first class mail postage prepaid on counsel of record at the following address
Joan E Morgan 2057 Orchard Lake Road Sylvan Lake MI 48320
DIRK C PHILLIPS Attorney
APPELLEErsquoS DESIGNATION OF APPENDIX CONTENTS
APPELLEErsquoS DESIGNATION OF APPENDIX CONTENTS
Appellee United States of America designates the following items to be
(ldquo[I]ssues adverted to in a perfunctory manner unaccompanied by some effort at
developed argumentation are deemed waivedrdquo) (quoting McPherson v Kelsey
125 F3d 989 995-996 (6th Cir 1997))
-27shy
C The Third And Fourth Prongs Of The Plain-Error Doctrine Are Not Satisfied In This Case Because Other Evidence Supporting Defendantrsquos Conviction Is Overwhelming
Even if the issue were fully briefed a finding of plain error would be
improper because defendant cannot satisfy the third or fourth prongs of the
inquiry The third prong of the plain-error inquiry ndash ie the requirement that the
error ldquoaffects substantial rightsrdquo Arnold 486 F3d at 194 by ldquoaffect[ing] the
outcome of the district court proceedingsrdquo Mooneyham 473 F3d at 288 ndash is not
satisfied where the evidence against the defendant is overwhelming See
Mooneyham 473 F3d at 288 United States v Hines 398 F3d 713 718-719 (6th
Cir) cert denied 545 US 1134 (2005)
Likewise the fourth prong of the inquiry ndash ie the requirement that the
error be said to have ldquoseriously affect[ed] the fairness integrity or public
reputation of judicial proceedingsrdquo Arnold 486 F3d at 194 ndash also is not met when
other evidence is ldquooverwhelmingrdquo and ldquoessentially uncontrovertedrdquo See United
States v Cotton 535 US 625 632-633 (2002) Johnson v United States 520
US 461 469-470 (1997) Hines 398 F3d at 718-719 Indeed as both the
Supreme Court and this Court have recognized with regard to the fourth prong of
the inquiry in some cases ldquoit would be the reversal of a conviction which
would have th[e] effectrdquo of ldquoseriously affect[ing] the fairness integrity or public
-28shy
reputation of judicial proceedingsrdquo Johnson 520 US at 470 (internal quotations
omitted) (emphasis added) see also United States v McGhee 119 F3d 422 424shy
425 (6th Cir 1997) This is so because ldquo[r]eversal for error regardless of its effect
on the judgment encourages litigants to abuse the judicial process and bestirs the
public to ridicule itrdquo Johnson 520 US at 470 (citation and internal quotations
omitted) see also McGhee 119 F3d at 424-425
In view of the foregoing courts often cite the presence of overwhelming
evidence as the basis for concluding that a defendant has failed to meet both the
third and fourth prongs of the plain-error inquiry See Hines 398 F3d at 718-719
United States v Dedhia 134 F3d 802 809 (6th Cir) cert denied 523 US 1145
(1998) see also United States v Birk 453 F3d 893 898 (7th Cir 2006) United
States v Taylor 284 F3d 95 102 (1st Cir) cert denied 536 US 933 (2002)
This Court should follow that approach here as there is overwhelming evidence ndash
separate and apart from the challenged statements ndash to support defendantrsquos
conviction Specifically as explained more fully below testimony at trial
established that defendant (1) spoke openly to others during the weeks leading up
to the fire regarding his desire to force the Dosters from the neighborhood (2) was
the one who set the fire (3) confided to a friend afterward that he both set the fire
and performed the lawn job with the intent to drive the Dosters away because of
-29shy
their race and (4) told conflicting stories to the FBI during the course of its
investigation one of which included an admission that he was at least indirectly
involved in setting the fire
1 Defendantrsquos Statements Prior To The Fire
Two witnesses offered detailed accounts of conversations they had with
defendant prior to the date of the fire During these conversations defendant
expressed his desire to drive the Dosters from their home
Guy Wurts testified that in mid-July 2002 Defendant said something to the
effect of ldquoI got to get rid of these niggers Irsquoll find something to do I donrsquot know
what I got to get these niggers out [of] the neighborhoodrdquo (Wurts 417 Tr 208shy
209 Apx __) Wurts testified that defendant looked in the Dostersrsquo direction
when he made these comments and said the word ldquoniggerrdquo loud enough for the
Dosters ndash who were working in their yard at the time ndash to hear it (Wurts 417 Tr
202-203 209-210 Apx __) Wurts further testified that defendant ldquoseemed
seriousrdquo when he made these statements (Wurts 417 Tr 259 Apx __)
Debbie Daniely recounted similar statements by defendant Specifically
defendant told Daniely more than once that he was very upset about the Dosters
moving into the neighborhood saying something to the effect of ldquoniggers are
moving inrdquo and ldquo[w]e have to do something about itrdquo (Daniely 418 Tr 22-25
-30shy
Apx __) Defendant later admitted to the FBI that he made such a statement to
ldquo[t]his Court has lsquoroutinely concluded that such claims are best brought by a
defendant in a post-conviction proceeding under 28 USC sect 2255 so that the
-37shy
parties can develop an adequate record on the issuersquordquo Martinez 430 F3d at 338
(quoting United States v Brown 332 F3d 363 368 (6th Cir 2003)) ldquoThere is
however lsquoa narrow exceptionrsquo to this rule lsquowhen the existing record is adequate to
assess properly the merits of the claimrsquordquo United States v Hynes 467 F3d 951
969 (6th Cir 2006) (quoting United States v Franklin 415 F3d 537 555-556
(6th Cir 2005)) See also United States v Winkle 477 F3d 407 421 (6th Cir
2007) (ldquoThis Court typically will not review a claim of ineffective assistance on
direct appeal except in rare cases where the error is apparent from the existing
recordrdquo) (quoting United States v Lopez-Medina 461 F3d 724 737 (6th Cir
2006))
No basis exists for departing from the general rule against addressing
ineffective-assistance claims on direct appeal As this Court has noted ldquo[t]he trial
process contains a myriad of complex decisions that for strategic reasons are
sound when made but may appear unsound with the benefit of hindsightrdquo United
States v Davis 306 F3d 398 422 (6th Cir 2002) cert denied 537 US 1208
(2003) (quoting United States v Fortson 194 F3d 730 736 (6th Cir 1999))
Moreover ldquo[j]udicial scrutiny of counselrsquos performance must be highly
deferentialrdquo and ldquoa court must indulge a strong presumption that counselrsquos
conduct falls within the wide range of reasonable professional assistancerdquo
-38shy
Strickland v Washington 466 US 668 689 (1984) Thus to establish ineffective
assistance ldquothe defendant must overcome the presumption that under the
circumstances the challenged action lsquomight be considered sound trial strategyrsquordquo
Ibid (quoting Michel v Louisiana 350 US 91 101 (1955))
Here the decision by defendantrsquos retained trial counsel to elicit the
challenged statements during cross-examination of a government witness
undeniably constitutes an element of trial strategy that cannot be analyzed at this
stage of the proceedings In particular because this is a direct appeal there is no
evidence in the record regarding defense counselrsquos trial strategy This Court
repeatedly has refused to review ineffective-assistance claims under such
circumstances See eg Lopez-Medina 461 F3d at 737 (ldquoAbsent evidence
specifically addressing counselrsquos performance we cannot determine whether his
actions reflected a reasoned trial strategyrdquo) United States v Sullivan 431 F3d
976 986 (6th Cir 2005) (ldquoWithout an explanation from trial counsel as to why he
failed to call the alibi witness we have no basis to determine whether this decision
was the result of inadequate representation or reasonable trial strategyrdquo) United
States v Allison 59 F3d 43 47 (6th Cir) cert denied 516 US 1002 (1995)
(ldquo[T]he sparse record before this court does not reveal whether the attorneyrsquos
actions could be considered sound trial strategyrdquo) United States v Snow 48 F3d
-39shy
198 199 (6th Cir 1995) (ldquoThe record before this court simply is insufficient to
show whether the alleged wrongful acts could be considered sound trial
strategyrdquo) Thus defendantrsquos ineffective-assistance claim must be examined ndash if
at all ndash in a separate collateral proceeding brought pursuant to Section 2255
C The Evidence That Is Available In The Record Does Not Support A Finding Of Ineffective Assistance Of Counsel
As stated above the governmentrsquos position is that the current record is not
sufficient to permit this Court to address defendantrsquos ineffective-assistance claim
in this direct appeal However if the Court disagrees ndash or desires in the interest of
judicial economy to address defendantrsquos claim on direct appeal ndash it should reject
the claim because defendant fails to satisfy the second prong of the ineffective-
assistance inquiry11
11 The government does not concede that the first prong of the Strickland inquiry is satisfied in this case Rather as noted above it is not possible to resolve the issue at this point because the record does not indicate precisely what defendantrsquos trial counsel was thinking what his strategy was or why he elected to pursue certain lines of questioning In the event that defendant elects to bring a collateral challenge pursuant to Section 2255 the government reserves the right to address the first prong of Strickland inquiry and to further develop its argument as to the second prong The governmentrsquos decision not to do so in this brief is based on the incomplete nature of the record with regard to the Strickland inquiry and should not be construed as a waiver or forfeiture of any arguments relating to defendantrsquos ineffective-assistance claim
-40shy
1 Standard For Establishing Ineffective Assistance Of Counsel
To prove ineffective assistance of counsel under Strickland a defendant
first ldquomust demonstrate that counselrsquos performance fell lsquobelow the objective
standard of reasonablenessrsquordquo Ivory v Jackson 509 F3d 284 294 (6th Cir 2007)
cert denied 128 S Ct 1897 (2008) (quoting Strickland 466 US at 688)) ldquoThe
defendant must then demonstrate that lsquothere is a reasonable probability that but
for counselrsquos unprofessional errors the result of the proceeding would have been
different A reasonable probability is a probability sufficient to undermine the
confidence in the outcomersquordquo Ibid (quoting Strickland 466 US at 694)
Significantly this Court ldquoneed not decide whether defense counsel
performed deficiently if disposing of an ineffective-assistance claim on the ground
of lack of sufficient prejudice would be easierrdquo Hynes 467 F3d at 970 See also
Ivory 509 F3d at 294 (ldquo[A] court need not determine whether counselrsquos
performance was deficient before examining the prejudice suffered by the
defendant as a result of the alleged deficiencies If it is easier to dispose of
an ineffectiveness claim on the ground of lack of sufficient prejudice which we
expect will often be so that course should be followedrdquo) (quoting Strickland 466
US at 697)
-41shy
2 Defendant Is Unable To Demonstrate Sufficient Prejudice And Therefore Cannot Satisfy The Second Prong Of The Inquiry
ldquoTo show prejudice [defendant] must demonstrate that lsquothere is a
reasonable probability that but for counselrsquos unprofessional errors the result of
the proceeding would have been differentrsquordquo Harrison v Motley 478 F3d 750
756 (6th Cir) cert denied 128 S Ct 444 (2007) (quoting Strickland 466 US at
694)) As set forth above in Section IIC the evidence of defendantrsquos guilt is
overwhelming and the result therefore would not have been different absent the
challenged statements This Court repeatedly has determined that the second
prong of the Strickland inquiry is not met under such circumstances See eg
Harrison 478 F3d at 757 (defendant ldquofailed to show that his attorneysrsquo alleged
conflict of interest resulted in prejudicerdquo where ldquothe evidence admitted against
[defendant] at trial was lsquooverwhelmingrsquordquo) Hicks v Collins 384 F3d 204 215
(6th Cir 2004) cert denied 545 US 1155 (2005) (holding that defendant cannot
satisfy the second prong of Strickland where ldquothere was overwhelming evidence of
[defendantrsquos] guiltrdquo) Campbell v United States 364 F3d 727 736 (6th Cir
2004) cert denied 543 US 1119 (2005) (ldquoGiven the overwhelming evidence
establishing [defendantrsquos] guilt we believe that he would not have been able to
show that but for his attorneyrsquos failure to object to the prosecutorrsquos alleged
-42shy
misconduct the result would have been differentrdquo)
Accordingly even if this Court determines that the record is sufficient for it
to address defendantrsquos ineffective-assistance claim on direct appeal it should
reject this claim based on his failure to satisfy the second prong of the Strickland
inquiry
CONCLUSION
For the foregoing reasons this Court should affirm the judgment below
Respectfully submitted
GRACE CHUNG BECKER Acting Assistant Attorney General Civil Rights Division
DIANA K FLYNN DIRK C PHILLIPS Attorneys US Department of Justice Civil Rights Divisions Appellate Section Ben Franklin Station PO Box 14403 Washington DC 20044-4403 (202) 305-4876
CERTIFICATE OF COMPLIANCE
Pursuant to Federal Rule of Appellate Procedure 32(a)(7)(B) I hereby
certify that this brief is proportionally spaced 14-point Times New Roman font
Per WordPerfect 12 software the brief contains 9022 words excluding those
parts exempted by Federal Rule of Appellate Procedure 32(a)(7)(B)(iii)
DIRK C PHILLIPS Attorney
DATED June 18 2008
CERTIFICATE OF SERVICE
I hereby certify that on June 18 2008 a copy of the foregoing PROOF
BRIEF FOR THE UNITED STATES AS PLAINTIFF-APPELLEE was served by
first class mail postage prepaid on counsel of record at the following address
Joan E Morgan 2057 Orchard Lake Road Sylvan Lake MI 48320
DIRK C PHILLIPS Attorney
APPELLEErsquoS DESIGNATION OF APPENDIX CONTENTS
APPELLEErsquoS DESIGNATION OF APPENDIX CONTENTS
Appellee United States of America designates the following items to be
C The Third And Fourth Prongs Of The Plain-Error Doctrine Are Not Satisfied In This Case Because Other Evidence Supporting Defendantrsquos Conviction Is Overwhelming
Even if the issue were fully briefed a finding of plain error would be
improper because defendant cannot satisfy the third or fourth prongs of the
inquiry The third prong of the plain-error inquiry ndash ie the requirement that the
error ldquoaffects substantial rightsrdquo Arnold 486 F3d at 194 by ldquoaffect[ing] the
outcome of the district court proceedingsrdquo Mooneyham 473 F3d at 288 ndash is not
satisfied where the evidence against the defendant is overwhelming See
Mooneyham 473 F3d at 288 United States v Hines 398 F3d 713 718-719 (6th
Cir) cert denied 545 US 1134 (2005)
Likewise the fourth prong of the inquiry ndash ie the requirement that the
error be said to have ldquoseriously affect[ed] the fairness integrity or public
reputation of judicial proceedingsrdquo Arnold 486 F3d at 194 ndash also is not met when
other evidence is ldquooverwhelmingrdquo and ldquoessentially uncontrovertedrdquo See United
States v Cotton 535 US 625 632-633 (2002) Johnson v United States 520
US 461 469-470 (1997) Hines 398 F3d at 718-719 Indeed as both the
Supreme Court and this Court have recognized with regard to the fourth prong of
the inquiry in some cases ldquoit would be the reversal of a conviction which
would have th[e] effectrdquo of ldquoseriously affect[ing] the fairness integrity or public
-28shy
reputation of judicial proceedingsrdquo Johnson 520 US at 470 (internal quotations
omitted) (emphasis added) see also United States v McGhee 119 F3d 422 424shy
425 (6th Cir 1997) This is so because ldquo[r]eversal for error regardless of its effect
on the judgment encourages litigants to abuse the judicial process and bestirs the
public to ridicule itrdquo Johnson 520 US at 470 (citation and internal quotations
omitted) see also McGhee 119 F3d at 424-425
In view of the foregoing courts often cite the presence of overwhelming
evidence as the basis for concluding that a defendant has failed to meet both the
third and fourth prongs of the plain-error inquiry See Hines 398 F3d at 718-719
United States v Dedhia 134 F3d 802 809 (6th Cir) cert denied 523 US 1145
(1998) see also United States v Birk 453 F3d 893 898 (7th Cir 2006) United
States v Taylor 284 F3d 95 102 (1st Cir) cert denied 536 US 933 (2002)
This Court should follow that approach here as there is overwhelming evidence ndash
separate and apart from the challenged statements ndash to support defendantrsquos
conviction Specifically as explained more fully below testimony at trial
established that defendant (1) spoke openly to others during the weeks leading up
to the fire regarding his desire to force the Dosters from the neighborhood (2) was
the one who set the fire (3) confided to a friend afterward that he both set the fire
and performed the lawn job with the intent to drive the Dosters away because of
-29shy
their race and (4) told conflicting stories to the FBI during the course of its
investigation one of which included an admission that he was at least indirectly
involved in setting the fire
1 Defendantrsquos Statements Prior To The Fire
Two witnesses offered detailed accounts of conversations they had with
defendant prior to the date of the fire During these conversations defendant
expressed his desire to drive the Dosters from their home
Guy Wurts testified that in mid-July 2002 Defendant said something to the
effect of ldquoI got to get rid of these niggers Irsquoll find something to do I donrsquot know
what I got to get these niggers out [of] the neighborhoodrdquo (Wurts 417 Tr 208shy
209 Apx __) Wurts testified that defendant looked in the Dostersrsquo direction
when he made these comments and said the word ldquoniggerrdquo loud enough for the
Dosters ndash who were working in their yard at the time ndash to hear it (Wurts 417 Tr
202-203 209-210 Apx __) Wurts further testified that defendant ldquoseemed
seriousrdquo when he made these statements (Wurts 417 Tr 259 Apx __)
Debbie Daniely recounted similar statements by defendant Specifically
defendant told Daniely more than once that he was very upset about the Dosters
moving into the neighborhood saying something to the effect of ldquoniggers are
moving inrdquo and ldquo[w]e have to do something about itrdquo (Daniely 418 Tr 22-25
-30shy
Apx __) Defendant later admitted to the FBI that he made such a statement to
ldquo[t]his Court has lsquoroutinely concluded that such claims are best brought by a
defendant in a post-conviction proceeding under 28 USC sect 2255 so that the
-37shy
parties can develop an adequate record on the issuersquordquo Martinez 430 F3d at 338
(quoting United States v Brown 332 F3d 363 368 (6th Cir 2003)) ldquoThere is
however lsquoa narrow exceptionrsquo to this rule lsquowhen the existing record is adequate to
assess properly the merits of the claimrsquordquo United States v Hynes 467 F3d 951
969 (6th Cir 2006) (quoting United States v Franklin 415 F3d 537 555-556
(6th Cir 2005)) See also United States v Winkle 477 F3d 407 421 (6th Cir
2007) (ldquoThis Court typically will not review a claim of ineffective assistance on
direct appeal except in rare cases where the error is apparent from the existing
recordrdquo) (quoting United States v Lopez-Medina 461 F3d 724 737 (6th Cir
2006))
No basis exists for departing from the general rule against addressing
ineffective-assistance claims on direct appeal As this Court has noted ldquo[t]he trial
process contains a myriad of complex decisions that for strategic reasons are
sound when made but may appear unsound with the benefit of hindsightrdquo United
States v Davis 306 F3d 398 422 (6th Cir 2002) cert denied 537 US 1208
(2003) (quoting United States v Fortson 194 F3d 730 736 (6th Cir 1999))
Moreover ldquo[j]udicial scrutiny of counselrsquos performance must be highly
deferentialrdquo and ldquoa court must indulge a strong presumption that counselrsquos
conduct falls within the wide range of reasonable professional assistancerdquo
-38shy
Strickland v Washington 466 US 668 689 (1984) Thus to establish ineffective
assistance ldquothe defendant must overcome the presumption that under the
circumstances the challenged action lsquomight be considered sound trial strategyrsquordquo
Ibid (quoting Michel v Louisiana 350 US 91 101 (1955))
Here the decision by defendantrsquos retained trial counsel to elicit the
challenged statements during cross-examination of a government witness
undeniably constitutes an element of trial strategy that cannot be analyzed at this
stage of the proceedings In particular because this is a direct appeal there is no
evidence in the record regarding defense counselrsquos trial strategy This Court
repeatedly has refused to review ineffective-assistance claims under such
circumstances See eg Lopez-Medina 461 F3d at 737 (ldquoAbsent evidence
specifically addressing counselrsquos performance we cannot determine whether his
actions reflected a reasoned trial strategyrdquo) United States v Sullivan 431 F3d
976 986 (6th Cir 2005) (ldquoWithout an explanation from trial counsel as to why he
failed to call the alibi witness we have no basis to determine whether this decision
was the result of inadequate representation or reasonable trial strategyrdquo) United
States v Allison 59 F3d 43 47 (6th Cir) cert denied 516 US 1002 (1995)
(ldquo[T]he sparse record before this court does not reveal whether the attorneyrsquos
actions could be considered sound trial strategyrdquo) United States v Snow 48 F3d
-39shy
198 199 (6th Cir 1995) (ldquoThe record before this court simply is insufficient to
show whether the alleged wrongful acts could be considered sound trial
strategyrdquo) Thus defendantrsquos ineffective-assistance claim must be examined ndash if
at all ndash in a separate collateral proceeding brought pursuant to Section 2255
C The Evidence That Is Available In The Record Does Not Support A Finding Of Ineffective Assistance Of Counsel
As stated above the governmentrsquos position is that the current record is not
sufficient to permit this Court to address defendantrsquos ineffective-assistance claim
in this direct appeal However if the Court disagrees ndash or desires in the interest of
judicial economy to address defendantrsquos claim on direct appeal ndash it should reject
the claim because defendant fails to satisfy the second prong of the ineffective-
assistance inquiry11
11 The government does not concede that the first prong of the Strickland inquiry is satisfied in this case Rather as noted above it is not possible to resolve the issue at this point because the record does not indicate precisely what defendantrsquos trial counsel was thinking what his strategy was or why he elected to pursue certain lines of questioning In the event that defendant elects to bring a collateral challenge pursuant to Section 2255 the government reserves the right to address the first prong of Strickland inquiry and to further develop its argument as to the second prong The governmentrsquos decision not to do so in this brief is based on the incomplete nature of the record with regard to the Strickland inquiry and should not be construed as a waiver or forfeiture of any arguments relating to defendantrsquos ineffective-assistance claim
-40shy
1 Standard For Establishing Ineffective Assistance Of Counsel
To prove ineffective assistance of counsel under Strickland a defendant
first ldquomust demonstrate that counselrsquos performance fell lsquobelow the objective
standard of reasonablenessrsquordquo Ivory v Jackson 509 F3d 284 294 (6th Cir 2007)
cert denied 128 S Ct 1897 (2008) (quoting Strickland 466 US at 688)) ldquoThe
defendant must then demonstrate that lsquothere is a reasonable probability that but
for counselrsquos unprofessional errors the result of the proceeding would have been
different A reasonable probability is a probability sufficient to undermine the
confidence in the outcomersquordquo Ibid (quoting Strickland 466 US at 694)
Significantly this Court ldquoneed not decide whether defense counsel
performed deficiently if disposing of an ineffective-assistance claim on the ground
of lack of sufficient prejudice would be easierrdquo Hynes 467 F3d at 970 See also
Ivory 509 F3d at 294 (ldquo[A] court need not determine whether counselrsquos
performance was deficient before examining the prejudice suffered by the
defendant as a result of the alleged deficiencies If it is easier to dispose of
an ineffectiveness claim on the ground of lack of sufficient prejudice which we
expect will often be so that course should be followedrdquo) (quoting Strickland 466
US at 697)
-41shy
2 Defendant Is Unable To Demonstrate Sufficient Prejudice And Therefore Cannot Satisfy The Second Prong Of The Inquiry
ldquoTo show prejudice [defendant] must demonstrate that lsquothere is a
reasonable probability that but for counselrsquos unprofessional errors the result of
the proceeding would have been differentrsquordquo Harrison v Motley 478 F3d 750
756 (6th Cir) cert denied 128 S Ct 444 (2007) (quoting Strickland 466 US at
694)) As set forth above in Section IIC the evidence of defendantrsquos guilt is
overwhelming and the result therefore would not have been different absent the
challenged statements This Court repeatedly has determined that the second
prong of the Strickland inquiry is not met under such circumstances See eg
Harrison 478 F3d at 757 (defendant ldquofailed to show that his attorneysrsquo alleged
conflict of interest resulted in prejudicerdquo where ldquothe evidence admitted against
[defendant] at trial was lsquooverwhelmingrsquordquo) Hicks v Collins 384 F3d 204 215
(6th Cir 2004) cert denied 545 US 1155 (2005) (holding that defendant cannot
satisfy the second prong of Strickland where ldquothere was overwhelming evidence of
[defendantrsquos] guiltrdquo) Campbell v United States 364 F3d 727 736 (6th Cir
2004) cert denied 543 US 1119 (2005) (ldquoGiven the overwhelming evidence
establishing [defendantrsquos] guilt we believe that he would not have been able to
show that but for his attorneyrsquos failure to object to the prosecutorrsquos alleged
-42shy
misconduct the result would have been differentrdquo)
Accordingly even if this Court determines that the record is sufficient for it
to address defendantrsquos ineffective-assistance claim on direct appeal it should
reject this claim based on his failure to satisfy the second prong of the Strickland
inquiry
CONCLUSION
For the foregoing reasons this Court should affirm the judgment below
Respectfully submitted
GRACE CHUNG BECKER Acting Assistant Attorney General Civil Rights Division
DIANA K FLYNN DIRK C PHILLIPS Attorneys US Department of Justice Civil Rights Divisions Appellate Section Ben Franklin Station PO Box 14403 Washington DC 20044-4403 (202) 305-4876
CERTIFICATE OF COMPLIANCE
Pursuant to Federal Rule of Appellate Procedure 32(a)(7)(B) I hereby
certify that this brief is proportionally spaced 14-point Times New Roman font
Per WordPerfect 12 software the brief contains 9022 words excluding those
parts exempted by Federal Rule of Appellate Procedure 32(a)(7)(B)(iii)
DIRK C PHILLIPS Attorney
DATED June 18 2008
CERTIFICATE OF SERVICE
I hereby certify that on June 18 2008 a copy of the foregoing PROOF
BRIEF FOR THE UNITED STATES AS PLAINTIFF-APPELLEE was served by
first class mail postage prepaid on counsel of record at the following address
Joan E Morgan 2057 Orchard Lake Road Sylvan Lake MI 48320
DIRK C PHILLIPS Attorney
APPELLEErsquoS DESIGNATION OF APPENDIX CONTENTS
APPELLEErsquoS DESIGNATION OF APPENDIX CONTENTS
Appellee United States of America designates the following items to be
ldquo[t]his Court has lsquoroutinely concluded that such claims are best brought by a
defendant in a post-conviction proceeding under 28 USC sect 2255 so that the
-37shy
parties can develop an adequate record on the issuersquordquo Martinez 430 F3d at 338
(quoting United States v Brown 332 F3d 363 368 (6th Cir 2003)) ldquoThere is
however lsquoa narrow exceptionrsquo to this rule lsquowhen the existing record is adequate to
assess properly the merits of the claimrsquordquo United States v Hynes 467 F3d 951
969 (6th Cir 2006) (quoting United States v Franklin 415 F3d 537 555-556
(6th Cir 2005)) See also United States v Winkle 477 F3d 407 421 (6th Cir
2007) (ldquoThis Court typically will not review a claim of ineffective assistance on
direct appeal except in rare cases where the error is apparent from the existing
recordrdquo) (quoting United States v Lopez-Medina 461 F3d 724 737 (6th Cir
2006))
No basis exists for departing from the general rule against addressing
ineffective-assistance claims on direct appeal As this Court has noted ldquo[t]he trial
process contains a myriad of complex decisions that for strategic reasons are
sound when made but may appear unsound with the benefit of hindsightrdquo United
States v Davis 306 F3d 398 422 (6th Cir 2002) cert denied 537 US 1208
(2003) (quoting United States v Fortson 194 F3d 730 736 (6th Cir 1999))
Moreover ldquo[j]udicial scrutiny of counselrsquos performance must be highly
deferentialrdquo and ldquoa court must indulge a strong presumption that counselrsquos
conduct falls within the wide range of reasonable professional assistancerdquo
-38shy
Strickland v Washington 466 US 668 689 (1984) Thus to establish ineffective
assistance ldquothe defendant must overcome the presumption that under the
circumstances the challenged action lsquomight be considered sound trial strategyrsquordquo
Ibid (quoting Michel v Louisiana 350 US 91 101 (1955))
Here the decision by defendantrsquos retained trial counsel to elicit the
challenged statements during cross-examination of a government witness
undeniably constitutes an element of trial strategy that cannot be analyzed at this
stage of the proceedings In particular because this is a direct appeal there is no
evidence in the record regarding defense counselrsquos trial strategy This Court
repeatedly has refused to review ineffective-assistance claims under such
circumstances See eg Lopez-Medina 461 F3d at 737 (ldquoAbsent evidence
specifically addressing counselrsquos performance we cannot determine whether his
actions reflected a reasoned trial strategyrdquo) United States v Sullivan 431 F3d
976 986 (6th Cir 2005) (ldquoWithout an explanation from trial counsel as to why he
failed to call the alibi witness we have no basis to determine whether this decision
was the result of inadequate representation or reasonable trial strategyrdquo) United
States v Allison 59 F3d 43 47 (6th Cir) cert denied 516 US 1002 (1995)
(ldquo[T]he sparse record before this court does not reveal whether the attorneyrsquos
actions could be considered sound trial strategyrdquo) United States v Snow 48 F3d
-39shy
198 199 (6th Cir 1995) (ldquoThe record before this court simply is insufficient to
show whether the alleged wrongful acts could be considered sound trial
strategyrdquo) Thus defendantrsquos ineffective-assistance claim must be examined ndash if
at all ndash in a separate collateral proceeding brought pursuant to Section 2255
C The Evidence That Is Available In The Record Does Not Support A Finding Of Ineffective Assistance Of Counsel
As stated above the governmentrsquos position is that the current record is not
sufficient to permit this Court to address defendantrsquos ineffective-assistance claim
in this direct appeal However if the Court disagrees ndash or desires in the interest of
judicial economy to address defendantrsquos claim on direct appeal ndash it should reject
the claim because defendant fails to satisfy the second prong of the ineffective-
assistance inquiry11
11 The government does not concede that the first prong of the Strickland inquiry is satisfied in this case Rather as noted above it is not possible to resolve the issue at this point because the record does not indicate precisely what defendantrsquos trial counsel was thinking what his strategy was or why he elected to pursue certain lines of questioning In the event that defendant elects to bring a collateral challenge pursuant to Section 2255 the government reserves the right to address the first prong of Strickland inquiry and to further develop its argument as to the second prong The governmentrsquos decision not to do so in this brief is based on the incomplete nature of the record with regard to the Strickland inquiry and should not be construed as a waiver or forfeiture of any arguments relating to defendantrsquos ineffective-assistance claim
-40shy
1 Standard For Establishing Ineffective Assistance Of Counsel
To prove ineffective assistance of counsel under Strickland a defendant
first ldquomust demonstrate that counselrsquos performance fell lsquobelow the objective
standard of reasonablenessrsquordquo Ivory v Jackson 509 F3d 284 294 (6th Cir 2007)
cert denied 128 S Ct 1897 (2008) (quoting Strickland 466 US at 688)) ldquoThe
defendant must then demonstrate that lsquothere is a reasonable probability that but
for counselrsquos unprofessional errors the result of the proceeding would have been
different A reasonable probability is a probability sufficient to undermine the
confidence in the outcomersquordquo Ibid (quoting Strickland 466 US at 694)
Significantly this Court ldquoneed not decide whether defense counsel
performed deficiently if disposing of an ineffective-assistance claim on the ground
of lack of sufficient prejudice would be easierrdquo Hynes 467 F3d at 970 See also
Ivory 509 F3d at 294 (ldquo[A] court need not determine whether counselrsquos
performance was deficient before examining the prejudice suffered by the
defendant as a result of the alleged deficiencies If it is easier to dispose of
an ineffectiveness claim on the ground of lack of sufficient prejudice which we
expect will often be so that course should be followedrdquo) (quoting Strickland 466
US at 697)
-41shy
2 Defendant Is Unable To Demonstrate Sufficient Prejudice And Therefore Cannot Satisfy The Second Prong Of The Inquiry
ldquoTo show prejudice [defendant] must demonstrate that lsquothere is a
reasonable probability that but for counselrsquos unprofessional errors the result of
the proceeding would have been differentrsquordquo Harrison v Motley 478 F3d 750
756 (6th Cir) cert denied 128 S Ct 444 (2007) (quoting Strickland 466 US at
694)) As set forth above in Section IIC the evidence of defendantrsquos guilt is
overwhelming and the result therefore would not have been different absent the
challenged statements This Court repeatedly has determined that the second
prong of the Strickland inquiry is not met under such circumstances See eg
Harrison 478 F3d at 757 (defendant ldquofailed to show that his attorneysrsquo alleged
conflict of interest resulted in prejudicerdquo where ldquothe evidence admitted against
[defendant] at trial was lsquooverwhelmingrsquordquo) Hicks v Collins 384 F3d 204 215
(6th Cir 2004) cert denied 545 US 1155 (2005) (holding that defendant cannot
satisfy the second prong of Strickland where ldquothere was overwhelming evidence of
[defendantrsquos] guiltrdquo) Campbell v United States 364 F3d 727 736 (6th Cir
2004) cert denied 543 US 1119 (2005) (ldquoGiven the overwhelming evidence
establishing [defendantrsquos] guilt we believe that he would not have been able to
show that but for his attorneyrsquos failure to object to the prosecutorrsquos alleged
-42shy
misconduct the result would have been differentrdquo)
Accordingly even if this Court determines that the record is sufficient for it
to address defendantrsquos ineffective-assistance claim on direct appeal it should
reject this claim based on his failure to satisfy the second prong of the Strickland
inquiry
CONCLUSION
For the foregoing reasons this Court should affirm the judgment below
Respectfully submitted
GRACE CHUNG BECKER Acting Assistant Attorney General Civil Rights Division
DIANA K FLYNN DIRK C PHILLIPS Attorneys US Department of Justice Civil Rights Divisions Appellate Section Ben Franklin Station PO Box 14403 Washington DC 20044-4403 (202) 305-4876
CERTIFICATE OF COMPLIANCE
Pursuant to Federal Rule of Appellate Procedure 32(a)(7)(B) I hereby
certify that this brief is proportionally spaced 14-point Times New Roman font
Per WordPerfect 12 software the brief contains 9022 words excluding those
parts exempted by Federal Rule of Appellate Procedure 32(a)(7)(B)(iii)
DIRK C PHILLIPS Attorney
DATED June 18 2008
CERTIFICATE OF SERVICE
I hereby certify that on June 18 2008 a copy of the foregoing PROOF
BRIEF FOR THE UNITED STATES AS PLAINTIFF-APPELLEE was served by
first class mail postage prepaid on counsel of record at the following address
Joan E Morgan 2057 Orchard Lake Road Sylvan Lake MI 48320
DIRK C PHILLIPS Attorney
APPELLEErsquoS DESIGNATION OF APPENDIX CONTENTS
APPELLEErsquoS DESIGNATION OF APPENDIX CONTENTS
Appellee United States of America designates the following items to be
ldquo[t]his Court has lsquoroutinely concluded that such claims are best brought by a
defendant in a post-conviction proceeding under 28 USC sect 2255 so that the
-37shy
parties can develop an adequate record on the issuersquordquo Martinez 430 F3d at 338
(quoting United States v Brown 332 F3d 363 368 (6th Cir 2003)) ldquoThere is
however lsquoa narrow exceptionrsquo to this rule lsquowhen the existing record is adequate to
assess properly the merits of the claimrsquordquo United States v Hynes 467 F3d 951
969 (6th Cir 2006) (quoting United States v Franklin 415 F3d 537 555-556
(6th Cir 2005)) See also United States v Winkle 477 F3d 407 421 (6th Cir
2007) (ldquoThis Court typically will not review a claim of ineffective assistance on
direct appeal except in rare cases where the error is apparent from the existing
recordrdquo) (quoting United States v Lopez-Medina 461 F3d 724 737 (6th Cir
2006))
No basis exists for departing from the general rule against addressing
ineffective-assistance claims on direct appeal As this Court has noted ldquo[t]he trial
process contains a myriad of complex decisions that for strategic reasons are
sound when made but may appear unsound with the benefit of hindsightrdquo United
States v Davis 306 F3d 398 422 (6th Cir 2002) cert denied 537 US 1208
(2003) (quoting United States v Fortson 194 F3d 730 736 (6th Cir 1999))
Moreover ldquo[j]udicial scrutiny of counselrsquos performance must be highly
deferentialrdquo and ldquoa court must indulge a strong presumption that counselrsquos
conduct falls within the wide range of reasonable professional assistancerdquo
-38shy
Strickland v Washington 466 US 668 689 (1984) Thus to establish ineffective
assistance ldquothe defendant must overcome the presumption that under the
circumstances the challenged action lsquomight be considered sound trial strategyrsquordquo
Ibid (quoting Michel v Louisiana 350 US 91 101 (1955))
Here the decision by defendantrsquos retained trial counsel to elicit the
challenged statements during cross-examination of a government witness
undeniably constitutes an element of trial strategy that cannot be analyzed at this
stage of the proceedings In particular because this is a direct appeal there is no
evidence in the record regarding defense counselrsquos trial strategy This Court
repeatedly has refused to review ineffective-assistance claims under such
circumstances See eg Lopez-Medina 461 F3d at 737 (ldquoAbsent evidence
specifically addressing counselrsquos performance we cannot determine whether his
actions reflected a reasoned trial strategyrdquo) United States v Sullivan 431 F3d
976 986 (6th Cir 2005) (ldquoWithout an explanation from trial counsel as to why he
failed to call the alibi witness we have no basis to determine whether this decision
was the result of inadequate representation or reasonable trial strategyrdquo) United
States v Allison 59 F3d 43 47 (6th Cir) cert denied 516 US 1002 (1995)
(ldquo[T]he sparse record before this court does not reveal whether the attorneyrsquos
actions could be considered sound trial strategyrdquo) United States v Snow 48 F3d
-39shy
198 199 (6th Cir 1995) (ldquoThe record before this court simply is insufficient to
show whether the alleged wrongful acts could be considered sound trial
strategyrdquo) Thus defendantrsquos ineffective-assistance claim must be examined ndash if
at all ndash in a separate collateral proceeding brought pursuant to Section 2255
C The Evidence That Is Available In The Record Does Not Support A Finding Of Ineffective Assistance Of Counsel
As stated above the governmentrsquos position is that the current record is not
sufficient to permit this Court to address defendantrsquos ineffective-assistance claim
in this direct appeal However if the Court disagrees ndash or desires in the interest of
judicial economy to address defendantrsquos claim on direct appeal ndash it should reject
the claim because defendant fails to satisfy the second prong of the ineffective-
assistance inquiry11
11 The government does not concede that the first prong of the Strickland inquiry is satisfied in this case Rather as noted above it is not possible to resolve the issue at this point because the record does not indicate precisely what defendantrsquos trial counsel was thinking what his strategy was or why he elected to pursue certain lines of questioning In the event that defendant elects to bring a collateral challenge pursuant to Section 2255 the government reserves the right to address the first prong of Strickland inquiry and to further develop its argument as to the second prong The governmentrsquos decision not to do so in this brief is based on the incomplete nature of the record with regard to the Strickland inquiry and should not be construed as a waiver or forfeiture of any arguments relating to defendantrsquos ineffective-assistance claim
-40shy
1 Standard For Establishing Ineffective Assistance Of Counsel
To prove ineffective assistance of counsel under Strickland a defendant
first ldquomust demonstrate that counselrsquos performance fell lsquobelow the objective
standard of reasonablenessrsquordquo Ivory v Jackson 509 F3d 284 294 (6th Cir 2007)
cert denied 128 S Ct 1897 (2008) (quoting Strickland 466 US at 688)) ldquoThe
defendant must then demonstrate that lsquothere is a reasonable probability that but
for counselrsquos unprofessional errors the result of the proceeding would have been
different A reasonable probability is a probability sufficient to undermine the
confidence in the outcomersquordquo Ibid (quoting Strickland 466 US at 694)
Significantly this Court ldquoneed not decide whether defense counsel
performed deficiently if disposing of an ineffective-assistance claim on the ground
of lack of sufficient prejudice would be easierrdquo Hynes 467 F3d at 970 See also
Ivory 509 F3d at 294 (ldquo[A] court need not determine whether counselrsquos
performance was deficient before examining the prejudice suffered by the
defendant as a result of the alleged deficiencies If it is easier to dispose of
an ineffectiveness claim on the ground of lack of sufficient prejudice which we
expect will often be so that course should be followedrdquo) (quoting Strickland 466
US at 697)
-41shy
2 Defendant Is Unable To Demonstrate Sufficient Prejudice And Therefore Cannot Satisfy The Second Prong Of The Inquiry
ldquoTo show prejudice [defendant] must demonstrate that lsquothere is a
reasonable probability that but for counselrsquos unprofessional errors the result of
the proceeding would have been differentrsquordquo Harrison v Motley 478 F3d 750
756 (6th Cir) cert denied 128 S Ct 444 (2007) (quoting Strickland 466 US at
694)) As set forth above in Section IIC the evidence of defendantrsquos guilt is
overwhelming and the result therefore would not have been different absent the
challenged statements This Court repeatedly has determined that the second
prong of the Strickland inquiry is not met under such circumstances See eg
Harrison 478 F3d at 757 (defendant ldquofailed to show that his attorneysrsquo alleged
conflict of interest resulted in prejudicerdquo where ldquothe evidence admitted against
[defendant] at trial was lsquooverwhelmingrsquordquo) Hicks v Collins 384 F3d 204 215
(6th Cir 2004) cert denied 545 US 1155 (2005) (holding that defendant cannot
satisfy the second prong of Strickland where ldquothere was overwhelming evidence of
[defendantrsquos] guiltrdquo) Campbell v United States 364 F3d 727 736 (6th Cir
2004) cert denied 543 US 1119 (2005) (ldquoGiven the overwhelming evidence
establishing [defendantrsquos] guilt we believe that he would not have been able to
show that but for his attorneyrsquos failure to object to the prosecutorrsquos alleged
-42shy
misconduct the result would have been differentrdquo)
Accordingly even if this Court determines that the record is sufficient for it
to address defendantrsquos ineffective-assistance claim on direct appeal it should
reject this claim based on his failure to satisfy the second prong of the Strickland
inquiry
CONCLUSION
For the foregoing reasons this Court should affirm the judgment below
Respectfully submitted
GRACE CHUNG BECKER Acting Assistant Attorney General Civil Rights Division
DIANA K FLYNN DIRK C PHILLIPS Attorneys US Department of Justice Civil Rights Divisions Appellate Section Ben Franklin Station PO Box 14403 Washington DC 20044-4403 (202) 305-4876
CERTIFICATE OF COMPLIANCE
Pursuant to Federal Rule of Appellate Procedure 32(a)(7)(B) I hereby
certify that this brief is proportionally spaced 14-point Times New Roman font
Per WordPerfect 12 software the brief contains 9022 words excluding those
parts exempted by Federal Rule of Appellate Procedure 32(a)(7)(B)(iii)
DIRK C PHILLIPS Attorney
DATED June 18 2008
CERTIFICATE OF SERVICE
I hereby certify that on June 18 2008 a copy of the foregoing PROOF
BRIEF FOR THE UNITED STATES AS PLAINTIFF-APPELLEE was served by
first class mail postage prepaid on counsel of record at the following address
Joan E Morgan 2057 Orchard Lake Road Sylvan Lake MI 48320
DIRK C PHILLIPS Attorney
APPELLEErsquoS DESIGNATION OF APPENDIX CONTENTS
APPELLEErsquoS DESIGNATION OF APPENDIX CONTENTS
Appellee United States of America designates the following items to be
ldquo[t]his Court has lsquoroutinely concluded that such claims are best brought by a
defendant in a post-conviction proceeding under 28 USC sect 2255 so that the
-37shy
parties can develop an adequate record on the issuersquordquo Martinez 430 F3d at 338
(quoting United States v Brown 332 F3d 363 368 (6th Cir 2003)) ldquoThere is
however lsquoa narrow exceptionrsquo to this rule lsquowhen the existing record is adequate to
assess properly the merits of the claimrsquordquo United States v Hynes 467 F3d 951
969 (6th Cir 2006) (quoting United States v Franklin 415 F3d 537 555-556
(6th Cir 2005)) See also United States v Winkle 477 F3d 407 421 (6th Cir
2007) (ldquoThis Court typically will not review a claim of ineffective assistance on
direct appeal except in rare cases where the error is apparent from the existing
recordrdquo) (quoting United States v Lopez-Medina 461 F3d 724 737 (6th Cir
2006))
No basis exists for departing from the general rule against addressing
ineffective-assistance claims on direct appeal As this Court has noted ldquo[t]he trial
process contains a myriad of complex decisions that for strategic reasons are
sound when made but may appear unsound with the benefit of hindsightrdquo United
States v Davis 306 F3d 398 422 (6th Cir 2002) cert denied 537 US 1208
(2003) (quoting United States v Fortson 194 F3d 730 736 (6th Cir 1999))
Moreover ldquo[j]udicial scrutiny of counselrsquos performance must be highly
deferentialrdquo and ldquoa court must indulge a strong presumption that counselrsquos
conduct falls within the wide range of reasonable professional assistancerdquo
-38shy
Strickland v Washington 466 US 668 689 (1984) Thus to establish ineffective
assistance ldquothe defendant must overcome the presumption that under the
circumstances the challenged action lsquomight be considered sound trial strategyrsquordquo
Ibid (quoting Michel v Louisiana 350 US 91 101 (1955))
Here the decision by defendantrsquos retained trial counsel to elicit the
challenged statements during cross-examination of a government witness
undeniably constitutes an element of trial strategy that cannot be analyzed at this
stage of the proceedings In particular because this is a direct appeal there is no
evidence in the record regarding defense counselrsquos trial strategy This Court
repeatedly has refused to review ineffective-assistance claims under such
circumstances See eg Lopez-Medina 461 F3d at 737 (ldquoAbsent evidence
specifically addressing counselrsquos performance we cannot determine whether his
actions reflected a reasoned trial strategyrdquo) United States v Sullivan 431 F3d
976 986 (6th Cir 2005) (ldquoWithout an explanation from trial counsel as to why he
failed to call the alibi witness we have no basis to determine whether this decision
was the result of inadequate representation or reasonable trial strategyrdquo) United
States v Allison 59 F3d 43 47 (6th Cir) cert denied 516 US 1002 (1995)
(ldquo[T]he sparse record before this court does not reveal whether the attorneyrsquos
actions could be considered sound trial strategyrdquo) United States v Snow 48 F3d
-39shy
198 199 (6th Cir 1995) (ldquoThe record before this court simply is insufficient to
show whether the alleged wrongful acts could be considered sound trial
strategyrdquo) Thus defendantrsquos ineffective-assistance claim must be examined ndash if
at all ndash in a separate collateral proceeding brought pursuant to Section 2255
C The Evidence That Is Available In The Record Does Not Support A Finding Of Ineffective Assistance Of Counsel
As stated above the governmentrsquos position is that the current record is not
sufficient to permit this Court to address defendantrsquos ineffective-assistance claim
in this direct appeal However if the Court disagrees ndash or desires in the interest of
judicial economy to address defendantrsquos claim on direct appeal ndash it should reject
the claim because defendant fails to satisfy the second prong of the ineffective-
assistance inquiry11
11 The government does not concede that the first prong of the Strickland inquiry is satisfied in this case Rather as noted above it is not possible to resolve the issue at this point because the record does not indicate precisely what defendantrsquos trial counsel was thinking what his strategy was or why he elected to pursue certain lines of questioning In the event that defendant elects to bring a collateral challenge pursuant to Section 2255 the government reserves the right to address the first prong of Strickland inquiry and to further develop its argument as to the second prong The governmentrsquos decision not to do so in this brief is based on the incomplete nature of the record with regard to the Strickland inquiry and should not be construed as a waiver or forfeiture of any arguments relating to defendantrsquos ineffective-assistance claim
-40shy
1 Standard For Establishing Ineffective Assistance Of Counsel
To prove ineffective assistance of counsel under Strickland a defendant
first ldquomust demonstrate that counselrsquos performance fell lsquobelow the objective
standard of reasonablenessrsquordquo Ivory v Jackson 509 F3d 284 294 (6th Cir 2007)
cert denied 128 S Ct 1897 (2008) (quoting Strickland 466 US at 688)) ldquoThe
defendant must then demonstrate that lsquothere is a reasonable probability that but
for counselrsquos unprofessional errors the result of the proceeding would have been
different A reasonable probability is a probability sufficient to undermine the
confidence in the outcomersquordquo Ibid (quoting Strickland 466 US at 694)
Significantly this Court ldquoneed not decide whether defense counsel
performed deficiently if disposing of an ineffective-assistance claim on the ground
of lack of sufficient prejudice would be easierrdquo Hynes 467 F3d at 970 See also
Ivory 509 F3d at 294 (ldquo[A] court need not determine whether counselrsquos
performance was deficient before examining the prejudice suffered by the
defendant as a result of the alleged deficiencies If it is easier to dispose of
an ineffectiveness claim on the ground of lack of sufficient prejudice which we
expect will often be so that course should be followedrdquo) (quoting Strickland 466
US at 697)
-41shy
2 Defendant Is Unable To Demonstrate Sufficient Prejudice And Therefore Cannot Satisfy The Second Prong Of The Inquiry
ldquoTo show prejudice [defendant] must demonstrate that lsquothere is a
reasonable probability that but for counselrsquos unprofessional errors the result of
the proceeding would have been differentrsquordquo Harrison v Motley 478 F3d 750
756 (6th Cir) cert denied 128 S Ct 444 (2007) (quoting Strickland 466 US at
694)) As set forth above in Section IIC the evidence of defendantrsquos guilt is
overwhelming and the result therefore would not have been different absent the
challenged statements This Court repeatedly has determined that the second
prong of the Strickland inquiry is not met under such circumstances See eg
Harrison 478 F3d at 757 (defendant ldquofailed to show that his attorneysrsquo alleged
conflict of interest resulted in prejudicerdquo where ldquothe evidence admitted against
[defendant] at trial was lsquooverwhelmingrsquordquo) Hicks v Collins 384 F3d 204 215
(6th Cir 2004) cert denied 545 US 1155 (2005) (holding that defendant cannot
satisfy the second prong of Strickland where ldquothere was overwhelming evidence of
[defendantrsquos] guiltrdquo) Campbell v United States 364 F3d 727 736 (6th Cir
2004) cert denied 543 US 1119 (2005) (ldquoGiven the overwhelming evidence
establishing [defendantrsquos] guilt we believe that he would not have been able to
show that but for his attorneyrsquos failure to object to the prosecutorrsquos alleged
-42shy
misconduct the result would have been differentrdquo)
Accordingly even if this Court determines that the record is sufficient for it
to address defendantrsquos ineffective-assistance claim on direct appeal it should
reject this claim based on his failure to satisfy the second prong of the Strickland
inquiry
CONCLUSION
For the foregoing reasons this Court should affirm the judgment below
Respectfully submitted
GRACE CHUNG BECKER Acting Assistant Attorney General Civil Rights Division
DIANA K FLYNN DIRK C PHILLIPS Attorneys US Department of Justice Civil Rights Divisions Appellate Section Ben Franklin Station PO Box 14403 Washington DC 20044-4403 (202) 305-4876
CERTIFICATE OF COMPLIANCE
Pursuant to Federal Rule of Appellate Procedure 32(a)(7)(B) I hereby
certify that this brief is proportionally spaced 14-point Times New Roman font
Per WordPerfect 12 software the brief contains 9022 words excluding those
parts exempted by Federal Rule of Appellate Procedure 32(a)(7)(B)(iii)
DIRK C PHILLIPS Attorney
DATED June 18 2008
CERTIFICATE OF SERVICE
I hereby certify that on June 18 2008 a copy of the foregoing PROOF
BRIEF FOR THE UNITED STATES AS PLAINTIFF-APPELLEE was served by
first class mail postage prepaid on counsel of record at the following address
Joan E Morgan 2057 Orchard Lake Road Sylvan Lake MI 48320
DIRK C PHILLIPS Attorney
APPELLEErsquoS DESIGNATION OF APPENDIX CONTENTS
APPELLEErsquoS DESIGNATION OF APPENDIX CONTENTS
Appellee United States of America designates the following items to be
ldquo[t]his Court has lsquoroutinely concluded that such claims are best brought by a
defendant in a post-conviction proceeding under 28 USC sect 2255 so that the
-37shy
parties can develop an adequate record on the issuersquordquo Martinez 430 F3d at 338
(quoting United States v Brown 332 F3d 363 368 (6th Cir 2003)) ldquoThere is
however lsquoa narrow exceptionrsquo to this rule lsquowhen the existing record is adequate to
assess properly the merits of the claimrsquordquo United States v Hynes 467 F3d 951
969 (6th Cir 2006) (quoting United States v Franklin 415 F3d 537 555-556
(6th Cir 2005)) See also United States v Winkle 477 F3d 407 421 (6th Cir
2007) (ldquoThis Court typically will not review a claim of ineffective assistance on
direct appeal except in rare cases where the error is apparent from the existing
recordrdquo) (quoting United States v Lopez-Medina 461 F3d 724 737 (6th Cir
2006))
No basis exists for departing from the general rule against addressing
ineffective-assistance claims on direct appeal As this Court has noted ldquo[t]he trial
process contains a myriad of complex decisions that for strategic reasons are
sound when made but may appear unsound with the benefit of hindsightrdquo United
States v Davis 306 F3d 398 422 (6th Cir 2002) cert denied 537 US 1208
(2003) (quoting United States v Fortson 194 F3d 730 736 (6th Cir 1999))
Moreover ldquo[j]udicial scrutiny of counselrsquos performance must be highly
deferentialrdquo and ldquoa court must indulge a strong presumption that counselrsquos
conduct falls within the wide range of reasonable professional assistancerdquo
-38shy
Strickland v Washington 466 US 668 689 (1984) Thus to establish ineffective
assistance ldquothe defendant must overcome the presumption that under the
circumstances the challenged action lsquomight be considered sound trial strategyrsquordquo
Ibid (quoting Michel v Louisiana 350 US 91 101 (1955))
Here the decision by defendantrsquos retained trial counsel to elicit the
challenged statements during cross-examination of a government witness
undeniably constitutes an element of trial strategy that cannot be analyzed at this
stage of the proceedings In particular because this is a direct appeal there is no
evidence in the record regarding defense counselrsquos trial strategy This Court
repeatedly has refused to review ineffective-assistance claims under such
circumstances See eg Lopez-Medina 461 F3d at 737 (ldquoAbsent evidence
specifically addressing counselrsquos performance we cannot determine whether his
actions reflected a reasoned trial strategyrdquo) United States v Sullivan 431 F3d
976 986 (6th Cir 2005) (ldquoWithout an explanation from trial counsel as to why he
failed to call the alibi witness we have no basis to determine whether this decision
was the result of inadequate representation or reasonable trial strategyrdquo) United
States v Allison 59 F3d 43 47 (6th Cir) cert denied 516 US 1002 (1995)
(ldquo[T]he sparse record before this court does not reveal whether the attorneyrsquos
actions could be considered sound trial strategyrdquo) United States v Snow 48 F3d
-39shy
198 199 (6th Cir 1995) (ldquoThe record before this court simply is insufficient to
show whether the alleged wrongful acts could be considered sound trial
strategyrdquo) Thus defendantrsquos ineffective-assistance claim must be examined ndash if
at all ndash in a separate collateral proceeding brought pursuant to Section 2255
C The Evidence That Is Available In The Record Does Not Support A Finding Of Ineffective Assistance Of Counsel
As stated above the governmentrsquos position is that the current record is not
sufficient to permit this Court to address defendantrsquos ineffective-assistance claim
in this direct appeal However if the Court disagrees ndash or desires in the interest of
judicial economy to address defendantrsquos claim on direct appeal ndash it should reject
the claim because defendant fails to satisfy the second prong of the ineffective-
assistance inquiry11
11 The government does not concede that the first prong of the Strickland inquiry is satisfied in this case Rather as noted above it is not possible to resolve the issue at this point because the record does not indicate precisely what defendantrsquos trial counsel was thinking what his strategy was or why he elected to pursue certain lines of questioning In the event that defendant elects to bring a collateral challenge pursuant to Section 2255 the government reserves the right to address the first prong of Strickland inquiry and to further develop its argument as to the second prong The governmentrsquos decision not to do so in this brief is based on the incomplete nature of the record with regard to the Strickland inquiry and should not be construed as a waiver or forfeiture of any arguments relating to defendantrsquos ineffective-assistance claim
-40shy
1 Standard For Establishing Ineffective Assistance Of Counsel
To prove ineffective assistance of counsel under Strickland a defendant
first ldquomust demonstrate that counselrsquos performance fell lsquobelow the objective
standard of reasonablenessrsquordquo Ivory v Jackson 509 F3d 284 294 (6th Cir 2007)
cert denied 128 S Ct 1897 (2008) (quoting Strickland 466 US at 688)) ldquoThe
defendant must then demonstrate that lsquothere is a reasonable probability that but
for counselrsquos unprofessional errors the result of the proceeding would have been
different A reasonable probability is a probability sufficient to undermine the
confidence in the outcomersquordquo Ibid (quoting Strickland 466 US at 694)
Significantly this Court ldquoneed not decide whether defense counsel
performed deficiently if disposing of an ineffective-assistance claim on the ground
of lack of sufficient prejudice would be easierrdquo Hynes 467 F3d at 970 See also
Ivory 509 F3d at 294 (ldquo[A] court need not determine whether counselrsquos
performance was deficient before examining the prejudice suffered by the
defendant as a result of the alleged deficiencies If it is easier to dispose of
an ineffectiveness claim on the ground of lack of sufficient prejudice which we
expect will often be so that course should be followedrdquo) (quoting Strickland 466
US at 697)
-41shy
2 Defendant Is Unable To Demonstrate Sufficient Prejudice And Therefore Cannot Satisfy The Second Prong Of The Inquiry
ldquoTo show prejudice [defendant] must demonstrate that lsquothere is a
reasonable probability that but for counselrsquos unprofessional errors the result of
the proceeding would have been differentrsquordquo Harrison v Motley 478 F3d 750
756 (6th Cir) cert denied 128 S Ct 444 (2007) (quoting Strickland 466 US at
694)) As set forth above in Section IIC the evidence of defendantrsquos guilt is
overwhelming and the result therefore would not have been different absent the
challenged statements This Court repeatedly has determined that the second
prong of the Strickland inquiry is not met under such circumstances See eg
Harrison 478 F3d at 757 (defendant ldquofailed to show that his attorneysrsquo alleged
conflict of interest resulted in prejudicerdquo where ldquothe evidence admitted against
[defendant] at trial was lsquooverwhelmingrsquordquo) Hicks v Collins 384 F3d 204 215
(6th Cir 2004) cert denied 545 US 1155 (2005) (holding that defendant cannot
satisfy the second prong of Strickland where ldquothere was overwhelming evidence of
[defendantrsquos] guiltrdquo) Campbell v United States 364 F3d 727 736 (6th Cir
2004) cert denied 543 US 1119 (2005) (ldquoGiven the overwhelming evidence
establishing [defendantrsquos] guilt we believe that he would not have been able to
show that but for his attorneyrsquos failure to object to the prosecutorrsquos alleged
-42shy
misconduct the result would have been differentrdquo)
Accordingly even if this Court determines that the record is sufficient for it
to address defendantrsquos ineffective-assistance claim on direct appeal it should
reject this claim based on his failure to satisfy the second prong of the Strickland
inquiry
CONCLUSION
For the foregoing reasons this Court should affirm the judgment below
Respectfully submitted
GRACE CHUNG BECKER Acting Assistant Attorney General Civil Rights Division
DIANA K FLYNN DIRK C PHILLIPS Attorneys US Department of Justice Civil Rights Divisions Appellate Section Ben Franklin Station PO Box 14403 Washington DC 20044-4403 (202) 305-4876
CERTIFICATE OF COMPLIANCE
Pursuant to Federal Rule of Appellate Procedure 32(a)(7)(B) I hereby
certify that this brief is proportionally spaced 14-point Times New Roman font
Per WordPerfect 12 software the brief contains 9022 words excluding those
parts exempted by Federal Rule of Appellate Procedure 32(a)(7)(B)(iii)
DIRK C PHILLIPS Attorney
DATED June 18 2008
CERTIFICATE OF SERVICE
I hereby certify that on June 18 2008 a copy of the foregoing PROOF
BRIEF FOR THE UNITED STATES AS PLAINTIFF-APPELLEE was served by
first class mail postage prepaid on counsel of record at the following address
Joan E Morgan 2057 Orchard Lake Road Sylvan Lake MI 48320
DIRK C PHILLIPS Attorney
APPELLEErsquoS DESIGNATION OF APPENDIX CONTENTS
APPELLEErsquoS DESIGNATION OF APPENDIX CONTENTS
Appellee United States of America designates the following items to be
ldquo[t]his Court has lsquoroutinely concluded that such claims are best brought by a
defendant in a post-conviction proceeding under 28 USC sect 2255 so that the
-37shy
parties can develop an adequate record on the issuersquordquo Martinez 430 F3d at 338
(quoting United States v Brown 332 F3d 363 368 (6th Cir 2003)) ldquoThere is
however lsquoa narrow exceptionrsquo to this rule lsquowhen the existing record is adequate to
assess properly the merits of the claimrsquordquo United States v Hynes 467 F3d 951
969 (6th Cir 2006) (quoting United States v Franklin 415 F3d 537 555-556
(6th Cir 2005)) See also United States v Winkle 477 F3d 407 421 (6th Cir
2007) (ldquoThis Court typically will not review a claim of ineffective assistance on
direct appeal except in rare cases where the error is apparent from the existing
recordrdquo) (quoting United States v Lopez-Medina 461 F3d 724 737 (6th Cir
2006))
No basis exists for departing from the general rule against addressing
ineffective-assistance claims on direct appeal As this Court has noted ldquo[t]he trial
process contains a myriad of complex decisions that for strategic reasons are
sound when made but may appear unsound with the benefit of hindsightrdquo United
States v Davis 306 F3d 398 422 (6th Cir 2002) cert denied 537 US 1208
(2003) (quoting United States v Fortson 194 F3d 730 736 (6th Cir 1999))
Moreover ldquo[j]udicial scrutiny of counselrsquos performance must be highly
deferentialrdquo and ldquoa court must indulge a strong presumption that counselrsquos
conduct falls within the wide range of reasonable professional assistancerdquo
-38shy
Strickland v Washington 466 US 668 689 (1984) Thus to establish ineffective
assistance ldquothe defendant must overcome the presumption that under the
circumstances the challenged action lsquomight be considered sound trial strategyrsquordquo
Ibid (quoting Michel v Louisiana 350 US 91 101 (1955))
Here the decision by defendantrsquos retained trial counsel to elicit the
challenged statements during cross-examination of a government witness
undeniably constitutes an element of trial strategy that cannot be analyzed at this
stage of the proceedings In particular because this is a direct appeal there is no
evidence in the record regarding defense counselrsquos trial strategy This Court
repeatedly has refused to review ineffective-assistance claims under such
circumstances See eg Lopez-Medina 461 F3d at 737 (ldquoAbsent evidence
specifically addressing counselrsquos performance we cannot determine whether his
actions reflected a reasoned trial strategyrdquo) United States v Sullivan 431 F3d
976 986 (6th Cir 2005) (ldquoWithout an explanation from trial counsel as to why he
failed to call the alibi witness we have no basis to determine whether this decision
was the result of inadequate representation or reasonable trial strategyrdquo) United
States v Allison 59 F3d 43 47 (6th Cir) cert denied 516 US 1002 (1995)
(ldquo[T]he sparse record before this court does not reveal whether the attorneyrsquos
actions could be considered sound trial strategyrdquo) United States v Snow 48 F3d
-39shy
198 199 (6th Cir 1995) (ldquoThe record before this court simply is insufficient to
show whether the alleged wrongful acts could be considered sound trial
strategyrdquo) Thus defendantrsquos ineffective-assistance claim must be examined ndash if
at all ndash in a separate collateral proceeding brought pursuant to Section 2255
C The Evidence That Is Available In The Record Does Not Support A Finding Of Ineffective Assistance Of Counsel
As stated above the governmentrsquos position is that the current record is not
sufficient to permit this Court to address defendantrsquos ineffective-assistance claim
in this direct appeal However if the Court disagrees ndash or desires in the interest of
judicial economy to address defendantrsquos claim on direct appeal ndash it should reject
the claim because defendant fails to satisfy the second prong of the ineffective-
assistance inquiry11
11 The government does not concede that the first prong of the Strickland inquiry is satisfied in this case Rather as noted above it is not possible to resolve the issue at this point because the record does not indicate precisely what defendantrsquos trial counsel was thinking what his strategy was or why he elected to pursue certain lines of questioning In the event that defendant elects to bring a collateral challenge pursuant to Section 2255 the government reserves the right to address the first prong of Strickland inquiry and to further develop its argument as to the second prong The governmentrsquos decision not to do so in this brief is based on the incomplete nature of the record with regard to the Strickland inquiry and should not be construed as a waiver or forfeiture of any arguments relating to defendantrsquos ineffective-assistance claim
-40shy
1 Standard For Establishing Ineffective Assistance Of Counsel
To prove ineffective assistance of counsel under Strickland a defendant
first ldquomust demonstrate that counselrsquos performance fell lsquobelow the objective
standard of reasonablenessrsquordquo Ivory v Jackson 509 F3d 284 294 (6th Cir 2007)
cert denied 128 S Ct 1897 (2008) (quoting Strickland 466 US at 688)) ldquoThe
defendant must then demonstrate that lsquothere is a reasonable probability that but
for counselrsquos unprofessional errors the result of the proceeding would have been
different A reasonable probability is a probability sufficient to undermine the
confidence in the outcomersquordquo Ibid (quoting Strickland 466 US at 694)
Significantly this Court ldquoneed not decide whether defense counsel
performed deficiently if disposing of an ineffective-assistance claim on the ground
of lack of sufficient prejudice would be easierrdquo Hynes 467 F3d at 970 See also
Ivory 509 F3d at 294 (ldquo[A] court need not determine whether counselrsquos
performance was deficient before examining the prejudice suffered by the
defendant as a result of the alleged deficiencies If it is easier to dispose of
an ineffectiveness claim on the ground of lack of sufficient prejudice which we
expect will often be so that course should be followedrdquo) (quoting Strickland 466
US at 697)
-41shy
2 Defendant Is Unable To Demonstrate Sufficient Prejudice And Therefore Cannot Satisfy The Second Prong Of The Inquiry
ldquoTo show prejudice [defendant] must demonstrate that lsquothere is a
reasonable probability that but for counselrsquos unprofessional errors the result of
the proceeding would have been differentrsquordquo Harrison v Motley 478 F3d 750
756 (6th Cir) cert denied 128 S Ct 444 (2007) (quoting Strickland 466 US at
694)) As set forth above in Section IIC the evidence of defendantrsquos guilt is
overwhelming and the result therefore would not have been different absent the
challenged statements This Court repeatedly has determined that the second
prong of the Strickland inquiry is not met under such circumstances See eg
Harrison 478 F3d at 757 (defendant ldquofailed to show that his attorneysrsquo alleged
conflict of interest resulted in prejudicerdquo where ldquothe evidence admitted against
[defendant] at trial was lsquooverwhelmingrsquordquo) Hicks v Collins 384 F3d 204 215
(6th Cir 2004) cert denied 545 US 1155 (2005) (holding that defendant cannot
satisfy the second prong of Strickland where ldquothere was overwhelming evidence of
[defendantrsquos] guiltrdquo) Campbell v United States 364 F3d 727 736 (6th Cir
2004) cert denied 543 US 1119 (2005) (ldquoGiven the overwhelming evidence
establishing [defendantrsquos] guilt we believe that he would not have been able to
show that but for his attorneyrsquos failure to object to the prosecutorrsquos alleged
-42shy
misconduct the result would have been differentrdquo)
Accordingly even if this Court determines that the record is sufficient for it
to address defendantrsquos ineffective-assistance claim on direct appeal it should
reject this claim based on his failure to satisfy the second prong of the Strickland
inquiry
CONCLUSION
For the foregoing reasons this Court should affirm the judgment below
Respectfully submitted
GRACE CHUNG BECKER Acting Assistant Attorney General Civil Rights Division
DIANA K FLYNN DIRK C PHILLIPS Attorneys US Department of Justice Civil Rights Divisions Appellate Section Ben Franklin Station PO Box 14403 Washington DC 20044-4403 (202) 305-4876
CERTIFICATE OF COMPLIANCE
Pursuant to Federal Rule of Appellate Procedure 32(a)(7)(B) I hereby
certify that this brief is proportionally spaced 14-point Times New Roman font
Per WordPerfect 12 software the brief contains 9022 words excluding those
parts exempted by Federal Rule of Appellate Procedure 32(a)(7)(B)(iii)
DIRK C PHILLIPS Attorney
DATED June 18 2008
CERTIFICATE OF SERVICE
I hereby certify that on June 18 2008 a copy of the foregoing PROOF
BRIEF FOR THE UNITED STATES AS PLAINTIFF-APPELLEE was served by
first class mail postage prepaid on counsel of record at the following address
Joan E Morgan 2057 Orchard Lake Road Sylvan Lake MI 48320
DIRK C PHILLIPS Attorney
APPELLEErsquoS DESIGNATION OF APPENDIX CONTENTS
APPELLEErsquoS DESIGNATION OF APPENDIX CONTENTS
Appellee United States of America designates the following items to be
ldquo[t]his Court has lsquoroutinely concluded that such claims are best brought by a
defendant in a post-conviction proceeding under 28 USC sect 2255 so that the
-37shy
parties can develop an adequate record on the issuersquordquo Martinez 430 F3d at 338
(quoting United States v Brown 332 F3d 363 368 (6th Cir 2003)) ldquoThere is
however lsquoa narrow exceptionrsquo to this rule lsquowhen the existing record is adequate to
assess properly the merits of the claimrsquordquo United States v Hynes 467 F3d 951
969 (6th Cir 2006) (quoting United States v Franklin 415 F3d 537 555-556
(6th Cir 2005)) See also United States v Winkle 477 F3d 407 421 (6th Cir
2007) (ldquoThis Court typically will not review a claim of ineffective assistance on
direct appeal except in rare cases where the error is apparent from the existing
recordrdquo) (quoting United States v Lopez-Medina 461 F3d 724 737 (6th Cir
2006))
No basis exists for departing from the general rule against addressing
ineffective-assistance claims on direct appeal As this Court has noted ldquo[t]he trial
process contains a myriad of complex decisions that for strategic reasons are
sound when made but may appear unsound with the benefit of hindsightrdquo United
States v Davis 306 F3d 398 422 (6th Cir 2002) cert denied 537 US 1208
(2003) (quoting United States v Fortson 194 F3d 730 736 (6th Cir 1999))
Moreover ldquo[j]udicial scrutiny of counselrsquos performance must be highly
deferentialrdquo and ldquoa court must indulge a strong presumption that counselrsquos
conduct falls within the wide range of reasonable professional assistancerdquo
-38shy
Strickland v Washington 466 US 668 689 (1984) Thus to establish ineffective
assistance ldquothe defendant must overcome the presumption that under the
circumstances the challenged action lsquomight be considered sound trial strategyrsquordquo
Ibid (quoting Michel v Louisiana 350 US 91 101 (1955))
Here the decision by defendantrsquos retained trial counsel to elicit the
challenged statements during cross-examination of a government witness
undeniably constitutes an element of trial strategy that cannot be analyzed at this
stage of the proceedings In particular because this is a direct appeal there is no
evidence in the record regarding defense counselrsquos trial strategy This Court
repeatedly has refused to review ineffective-assistance claims under such
circumstances See eg Lopez-Medina 461 F3d at 737 (ldquoAbsent evidence
specifically addressing counselrsquos performance we cannot determine whether his
actions reflected a reasoned trial strategyrdquo) United States v Sullivan 431 F3d
976 986 (6th Cir 2005) (ldquoWithout an explanation from trial counsel as to why he
failed to call the alibi witness we have no basis to determine whether this decision
was the result of inadequate representation or reasonable trial strategyrdquo) United
States v Allison 59 F3d 43 47 (6th Cir) cert denied 516 US 1002 (1995)
(ldquo[T]he sparse record before this court does not reveal whether the attorneyrsquos
actions could be considered sound trial strategyrdquo) United States v Snow 48 F3d
-39shy
198 199 (6th Cir 1995) (ldquoThe record before this court simply is insufficient to
show whether the alleged wrongful acts could be considered sound trial
strategyrdquo) Thus defendantrsquos ineffective-assistance claim must be examined ndash if
at all ndash in a separate collateral proceeding brought pursuant to Section 2255
C The Evidence That Is Available In The Record Does Not Support A Finding Of Ineffective Assistance Of Counsel
As stated above the governmentrsquos position is that the current record is not
sufficient to permit this Court to address defendantrsquos ineffective-assistance claim
in this direct appeal However if the Court disagrees ndash or desires in the interest of
judicial economy to address defendantrsquos claim on direct appeal ndash it should reject
the claim because defendant fails to satisfy the second prong of the ineffective-
assistance inquiry11
11 The government does not concede that the first prong of the Strickland inquiry is satisfied in this case Rather as noted above it is not possible to resolve the issue at this point because the record does not indicate precisely what defendantrsquos trial counsel was thinking what his strategy was or why he elected to pursue certain lines of questioning In the event that defendant elects to bring a collateral challenge pursuant to Section 2255 the government reserves the right to address the first prong of Strickland inquiry and to further develop its argument as to the second prong The governmentrsquos decision not to do so in this brief is based on the incomplete nature of the record with regard to the Strickland inquiry and should not be construed as a waiver or forfeiture of any arguments relating to defendantrsquos ineffective-assistance claim
-40shy
1 Standard For Establishing Ineffective Assistance Of Counsel
To prove ineffective assistance of counsel under Strickland a defendant
first ldquomust demonstrate that counselrsquos performance fell lsquobelow the objective
standard of reasonablenessrsquordquo Ivory v Jackson 509 F3d 284 294 (6th Cir 2007)
cert denied 128 S Ct 1897 (2008) (quoting Strickland 466 US at 688)) ldquoThe
defendant must then demonstrate that lsquothere is a reasonable probability that but
for counselrsquos unprofessional errors the result of the proceeding would have been
different A reasonable probability is a probability sufficient to undermine the
confidence in the outcomersquordquo Ibid (quoting Strickland 466 US at 694)
Significantly this Court ldquoneed not decide whether defense counsel
performed deficiently if disposing of an ineffective-assistance claim on the ground
of lack of sufficient prejudice would be easierrdquo Hynes 467 F3d at 970 See also
Ivory 509 F3d at 294 (ldquo[A] court need not determine whether counselrsquos
performance was deficient before examining the prejudice suffered by the
defendant as a result of the alleged deficiencies If it is easier to dispose of
an ineffectiveness claim on the ground of lack of sufficient prejudice which we
expect will often be so that course should be followedrdquo) (quoting Strickland 466
US at 697)
-41shy
2 Defendant Is Unable To Demonstrate Sufficient Prejudice And Therefore Cannot Satisfy The Second Prong Of The Inquiry
ldquoTo show prejudice [defendant] must demonstrate that lsquothere is a
reasonable probability that but for counselrsquos unprofessional errors the result of
the proceeding would have been differentrsquordquo Harrison v Motley 478 F3d 750
756 (6th Cir) cert denied 128 S Ct 444 (2007) (quoting Strickland 466 US at
694)) As set forth above in Section IIC the evidence of defendantrsquos guilt is
overwhelming and the result therefore would not have been different absent the
challenged statements This Court repeatedly has determined that the second
prong of the Strickland inquiry is not met under such circumstances See eg
Harrison 478 F3d at 757 (defendant ldquofailed to show that his attorneysrsquo alleged
conflict of interest resulted in prejudicerdquo where ldquothe evidence admitted against
[defendant] at trial was lsquooverwhelmingrsquordquo) Hicks v Collins 384 F3d 204 215
(6th Cir 2004) cert denied 545 US 1155 (2005) (holding that defendant cannot
satisfy the second prong of Strickland where ldquothere was overwhelming evidence of
[defendantrsquos] guiltrdquo) Campbell v United States 364 F3d 727 736 (6th Cir
2004) cert denied 543 US 1119 (2005) (ldquoGiven the overwhelming evidence
establishing [defendantrsquos] guilt we believe that he would not have been able to
show that but for his attorneyrsquos failure to object to the prosecutorrsquos alleged
-42shy
misconduct the result would have been differentrdquo)
Accordingly even if this Court determines that the record is sufficient for it
to address defendantrsquos ineffective-assistance claim on direct appeal it should
reject this claim based on his failure to satisfy the second prong of the Strickland
inquiry
CONCLUSION
For the foregoing reasons this Court should affirm the judgment below
Respectfully submitted
GRACE CHUNG BECKER Acting Assistant Attorney General Civil Rights Division
DIANA K FLYNN DIRK C PHILLIPS Attorneys US Department of Justice Civil Rights Divisions Appellate Section Ben Franklin Station PO Box 14403 Washington DC 20044-4403 (202) 305-4876
CERTIFICATE OF COMPLIANCE
Pursuant to Federal Rule of Appellate Procedure 32(a)(7)(B) I hereby
certify that this brief is proportionally spaced 14-point Times New Roman font
Per WordPerfect 12 software the brief contains 9022 words excluding those
parts exempted by Federal Rule of Appellate Procedure 32(a)(7)(B)(iii)
DIRK C PHILLIPS Attorney
DATED June 18 2008
CERTIFICATE OF SERVICE
I hereby certify that on June 18 2008 a copy of the foregoing PROOF
BRIEF FOR THE UNITED STATES AS PLAINTIFF-APPELLEE was served by
first class mail postage prepaid on counsel of record at the following address
Joan E Morgan 2057 Orchard Lake Road Sylvan Lake MI 48320
DIRK C PHILLIPS Attorney
APPELLEErsquoS DESIGNATION OF APPENDIX CONTENTS
APPELLEErsquoS DESIGNATION OF APPENDIX CONTENTS
Appellee United States of America designates the following items to be
ldquo[t]his Court has lsquoroutinely concluded that such claims are best brought by a
defendant in a post-conviction proceeding under 28 USC sect 2255 so that the
-37shy
parties can develop an adequate record on the issuersquordquo Martinez 430 F3d at 338
(quoting United States v Brown 332 F3d 363 368 (6th Cir 2003)) ldquoThere is
however lsquoa narrow exceptionrsquo to this rule lsquowhen the existing record is adequate to
assess properly the merits of the claimrsquordquo United States v Hynes 467 F3d 951
969 (6th Cir 2006) (quoting United States v Franklin 415 F3d 537 555-556
(6th Cir 2005)) See also United States v Winkle 477 F3d 407 421 (6th Cir
2007) (ldquoThis Court typically will not review a claim of ineffective assistance on
direct appeal except in rare cases where the error is apparent from the existing
recordrdquo) (quoting United States v Lopez-Medina 461 F3d 724 737 (6th Cir
2006))
No basis exists for departing from the general rule against addressing
ineffective-assistance claims on direct appeal As this Court has noted ldquo[t]he trial
process contains a myriad of complex decisions that for strategic reasons are
sound when made but may appear unsound with the benefit of hindsightrdquo United
States v Davis 306 F3d 398 422 (6th Cir 2002) cert denied 537 US 1208
(2003) (quoting United States v Fortson 194 F3d 730 736 (6th Cir 1999))
Moreover ldquo[j]udicial scrutiny of counselrsquos performance must be highly
deferentialrdquo and ldquoa court must indulge a strong presumption that counselrsquos
conduct falls within the wide range of reasonable professional assistancerdquo
-38shy
Strickland v Washington 466 US 668 689 (1984) Thus to establish ineffective
assistance ldquothe defendant must overcome the presumption that under the
circumstances the challenged action lsquomight be considered sound trial strategyrsquordquo
Ibid (quoting Michel v Louisiana 350 US 91 101 (1955))
Here the decision by defendantrsquos retained trial counsel to elicit the
challenged statements during cross-examination of a government witness
undeniably constitutes an element of trial strategy that cannot be analyzed at this
stage of the proceedings In particular because this is a direct appeal there is no
evidence in the record regarding defense counselrsquos trial strategy This Court
repeatedly has refused to review ineffective-assistance claims under such
circumstances See eg Lopez-Medina 461 F3d at 737 (ldquoAbsent evidence
specifically addressing counselrsquos performance we cannot determine whether his
actions reflected a reasoned trial strategyrdquo) United States v Sullivan 431 F3d
976 986 (6th Cir 2005) (ldquoWithout an explanation from trial counsel as to why he
failed to call the alibi witness we have no basis to determine whether this decision
was the result of inadequate representation or reasonable trial strategyrdquo) United
States v Allison 59 F3d 43 47 (6th Cir) cert denied 516 US 1002 (1995)
(ldquo[T]he sparse record before this court does not reveal whether the attorneyrsquos
actions could be considered sound trial strategyrdquo) United States v Snow 48 F3d
-39shy
198 199 (6th Cir 1995) (ldquoThe record before this court simply is insufficient to
show whether the alleged wrongful acts could be considered sound trial
strategyrdquo) Thus defendantrsquos ineffective-assistance claim must be examined ndash if
at all ndash in a separate collateral proceeding brought pursuant to Section 2255
C The Evidence That Is Available In The Record Does Not Support A Finding Of Ineffective Assistance Of Counsel
As stated above the governmentrsquos position is that the current record is not
sufficient to permit this Court to address defendantrsquos ineffective-assistance claim
in this direct appeal However if the Court disagrees ndash or desires in the interest of
judicial economy to address defendantrsquos claim on direct appeal ndash it should reject
the claim because defendant fails to satisfy the second prong of the ineffective-
assistance inquiry11
11 The government does not concede that the first prong of the Strickland inquiry is satisfied in this case Rather as noted above it is not possible to resolve the issue at this point because the record does not indicate precisely what defendantrsquos trial counsel was thinking what his strategy was or why he elected to pursue certain lines of questioning In the event that defendant elects to bring a collateral challenge pursuant to Section 2255 the government reserves the right to address the first prong of Strickland inquiry and to further develop its argument as to the second prong The governmentrsquos decision not to do so in this brief is based on the incomplete nature of the record with regard to the Strickland inquiry and should not be construed as a waiver or forfeiture of any arguments relating to defendantrsquos ineffective-assistance claim
-40shy
1 Standard For Establishing Ineffective Assistance Of Counsel
To prove ineffective assistance of counsel under Strickland a defendant
first ldquomust demonstrate that counselrsquos performance fell lsquobelow the objective
standard of reasonablenessrsquordquo Ivory v Jackson 509 F3d 284 294 (6th Cir 2007)
cert denied 128 S Ct 1897 (2008) (quoting Strickland 466 US at 688)) ldquoThe
defendant must then demonstrate that lsquothere is a reasonable probability that but
for counselrsquos unprofessional errors the result of the proceeding would have been
different A reasonable probability is a probability sufficient to undermine the
confidence in the outcomersquordquo Ibid (quoting Strickland 466 US at 694)
Significantly this Court ldquoneed not decide whether defense counsel
performed deficiently if disposing of an ineffective-assistance claim on the ground
of lack of sufficient prejudice would be easierrdquo Hynes 467 F3d at 970 See also
Ivory 509 F3d at 294 (ldquo[A] court need not determine whether counselrsquos
performance was deficient before examining the prejudice suffered by the
defendant as a result of the alleged deficiencies If it is easier to dispose of
an ineffectiveness claim on the ground of lack of sufficient prejudice which we
expect will often be so that course should be followedrdquo) (quoting Strickland 466
US at 697)
-41shy
2 Defendant Is Unable To Demonstrate Sufficient Prejudice And Therefore Cannot Satisfy The Second Prong Of The Inquiry
ldquoTo show prejudice [defendant] must demonstrate that lsquothere is a
reasonable probability that but for counselrsquos unprofessional errors the result of
the proceeding would have been differentrsquordquo Harrison v Motley 478 F3d 750
756 (6th Cir) cert denied 128 S Ct 444 (2007) (quoting Strickland 466 US at
694)) As set forth above in Section IIC the evidence of defendantrsquos guilt is
overwhelming and the result therefore would not have been different absent the
challenged statements This Court repeatedly has determined that the second
prong of the Strickland inquiry is not met under such circumstances See eg
Harrison 478 F3d at 757 (defendant ldquofailed to show that his attorneysrsquo alleged
conflict of interest resulted in prejudicerdquo where ldquothe evidence admitted against
[defendant] at trial was lsquooverwhelmingrsquordquo) Hicks v Collins 384 F3d 204 215
(6th Cir 2004) cert denied 545 US 1155 (2005) (holding that defendant cannot
satisfy the second prong of Strickland where ldquothere was overwhelming evidence of
[defendantrsquos] guiltrdquo) Campbell v United States 364 F3d 727 736 (6th Cir
2004) cert denied 543 US 1119 (2005) (ldquoGiven the overwhelming evidence
establishing [defendantrsquos] guilt we believe that he would not have been able to
show that but for his attorneyrsquos failure to object to the prosecutorrsquos alleged
-42shy
misconduct the result would have been differentrdquo)
Accordingly even if this Court determines that the record is sufficient for it
to address defendantrsquos ineffective-assistance claim on direct appeal it should
reject this claim based on his failure to satisfy the second prong of the Strickland
inquiry
CONCLUSION
For the foregoing reasons this Court should affirm the judgment below
Respectfully submitted
GRACE CHUNG BECKER Acting Assistant Attorney General Civil Rights Division
DIANA K FLYNN DIRK C PHILLIPS Attorneys US Department of Justice Civil Rights Divisions Appellate Section Ben Franklin Station PO Box 14403 Washington DC 20044-4403 (202) 305-4876
CERTIFICATE OF COMPLIANCE
Pursuant to Federal Rule of Appellate Procedure 32(a)(7)(B) I hereby
certify that this brief is proportionally spaced 14-point Times New Roman font
Per WordPerfect 12 software the brief contains 9022 words excluding those
parts exempted by Federal Rule of Appellate Procedure 32(a)(7)(B)(iii)
DIRK C PHILLIPS Attorney
DATED June 18 2008
CERTIFICATE OF SERVICE
I hereby certify that on June 18 2008 a copy of the foregoing PROOF
BRIEF FOR THE UNITED STATES AS PLAINTIFF-APPELLEE was served by
first class mail postage prepaid on counsel of record at the following address
Joan E Morgan 2057 Orchard Lake Road Sylvan Lake MI 48320
DIRK C PHILLIPS Attorney
APPELLEErsquoS DESIGNATION OF APPENDIX CONTENTS
APPELLEErsquoS DESIGNATION OF APPENDIX CONTENTS
Appellee United States of America designates the following items to be
ldquo[t]his Court has lsquoroutinely concluded that such claims are best brought by a
defendant in a post-conviction proceeding under 28 USC sect 2255 so that the
-37shy
parties can develop an adequate record on the issuersquordquo Martinez 430 F3d at 338
(quoting United States v Brown 332 F3d 363 368 (6th Cir 2003)) ldquoThere is
however lsquoa narrow exceptionrsquo to this rule lsquowhen the existing record is adequate to
assess properly the merits of the claimrsquordquo United States v Hynes 467 F3d 951
969 (6th Cir 2006) (quoting United States v Franklin 415 F3d 537 555-556
(6th Cir 2005)) See also United States v Winkle 477 F3d 407 421 (6th Cir
2007) (ldquoThis Court typically will not review a claim of ineffective assistance on
direct appeal except in rare cases where the error is apparent from the existing
recordrdquo) (quoting United States v Lopez-Medina 461 F3d 724 737 (6th Cir
2006))
No basis exists for departing from the general rule against addressing
ineffective-assistance claims on direct appeal As this Court has noted ldquo[t]he trial
process contains a myriad of complex decisions that for strategic reasons are
sound when made but may appear unsound with the benefit of hindsightrdquo United
States v Davis 306 F3d 398 422 (6th Cir 2002) cert denied 537 US 1208
(2003) (quoting United States v Fortson 194 F3d 730 736 (6th Cir 1999))
Moreover ldquo[j]udicial scrutiny of counselrsquos performance must be highly
deferentialrdquo and ldquoa court must indulge a strong presumption that counselrsquos
conduct falls within the wide range of reasonable professional assistancerdquo
-38shy
Strickland v Washington 466 US 668 689 (1984) Thus to establish ineffective
assistance ldquothe defendant must overcome the presumption that under the
circumstances the challenged action lsquomight be considered sound trial strategyrsquordquo
Ibid (quoting Michel v Louisiana 350 US 91 101 (1955))
Here the decision by defendantrsquos retained trial counsel to elicit the
challenged statements during cross-examination of a government witness
undeniably constitutes an element of trial strategy that cannot be analyzed at this
stage of the proceedings In particular because this is a direct appeal there is no
evidence in the record regarding defense counselrsquos trial strategy This Court
repeatedly has refused to review ineffective-assistance claims under such
circumstances See eg Lopez-Medina 461 F3d at 737 (ldquoAbsent evidence
specifically addressing counselrsquos performance we cannot determine whether his
actions reflected a reasoned trial strategyrdquo) United States v Sullivan 431 F3d
976 986 (6th Cir 2005) (ldquoWithout an explanation from trial counsel as to why he
failed to call the alibi witness we have no basis to determine whether this decision
was the result of inadequate representation or reasonable trial strategyrdquo) United
States v Allison 59 F3d 43 47 (6th Cir) cert denied 516 US 1002 (1995)
(ldquo[T]he sparse record before this court does not reveal whether the attorneyrsquos
actions could be considered sound trial strategyrdquo) United States v Snow 48 F3d
-39shy
198 199 (6th Cir 1995) (ldquoThe record before this court simply is insufficient to
show whether the alleged wrongful acts could be considered sound trial
strategyrdquo) Thus defendantrsquos ineffective-assistance claim must be examined ndash if
at all ndash in a separate collateral proceeding brought pursuant to Section 2255
C The Evidence That Is Available In The Record Does Not Support A Finding Of Ineffective Assistance Of Counsel
As stated above the governmentrsquos position is that the current record is not
sufficient to permit this Court to address defendantrsquos ineffective-assistance claim
in this direct appeal However if the Court disagrees ndash or desires in the interest of
judicial economy to address defendantrsquos claim on direct appeal ndash it should reject
the claim because defendant fails to satisfy the second prong of the ineffective-
assistance inquiry11
11 The government does not concede that the first prong of the Strickland inquiry is satisfied in this case Rather as noted above it is not possible to resolve the issue at this point because the record does not indicate precisely what defendantrsquos trial counsel was thinking what his strategy was or why he elected to pursue certain lines of questioning In the event that defendant elects to bring a collateral challenge pursuant to Section 2255 the government reserves the right to address the first prong of Strickland inquiry and to further develop its argument as to the second prong The governmentrsquos decision not to do so in this brief is based on the incomplete nature of the record with regard to the Strickland inquiry and should not be construed as a waiver or forfeiture of any arguments relating to defendantrsquos ineffective-assistance claim
-40shy
1 Standard For Establishing Ineffective Assistance Of Counsel
To prove ineffective assistance of counsel under Strickland a defendant
first ldquomust demonstrate that counselrsquos performance fell lsquobelow the objective
standard of reasonablenessrsquordquo Ivory v Jackson 509 F3d 284 294 (6th Cir 2007)
cert denied 128 S Ct 1897 (2008) (quoting Strickland 466 US at 688)) ldquoThe
defendant must then demonstrate that lsquothere is a reasonable probability that but
for counselrsquos unprofessional errors the result of the proceeding would have been
different A reasonable probability is a probability sufficient to undermine the
confidence in the outcomersquordquo Ibid (quoting Strickland 466 US at 694)
Significantly this Court ldquoneed not decide whether defense counsel
performed deficiently if disposing of an ineffective-assistance claim on the ground
of lack of sufficient prejudice would be easierrdquo Hynes 467 F3d at 970 See also
Ivory 509 F3d at 294 (ldquo[A] court need not determine whether counselrsquos
performance was deficient before examining the prejudice suffered by the
defendant as a result of the alleged deficiencies If it is easier to dispose of
an ineffectiveness claim on the ground of lack of sufficient prejudice which we
expect will often be so that course should be followedrdquo) (quoting Strickland 466
US at 697)
-41shy
2 Defendant Is Unable To Demonstrate Sufficient Prejudice And Therefore Cannot Satisfy The Second Prong Of The Inquiry
ldquoTo show prejudice [defendant] must demonstrate that lsquothere is a
reasonable probability that but for counselrsquos unprofessional errors the result of
the proceeding would have been differentrsquordquo Harrison v Motley 478 F3d 750
756 (6th Cir) cert denied 128 S Ct 444 (2007) (quoting Strickland 466 US at
694)) As set forth above in Section IIC the evidence of defendantrsquos guilt is
overwhelming and the result therefore would not have been different absent the
challenged statements This Court repeatedly has determined that the second
prong of the Strickland inquiry is not met under such circumstances See eg
Harrison 478 F3d at 757 (defendant ldquofailed to show that his attorneysrsquo alleged
conflict of interest resulted in prejudicerdquo where ldquothe evidence admitted against
[defendant] at trial was lsquooverwhelmingrsquordquo) Hicks v Collins 384 F3d 204 215
(6th Cir 2004) cert denied 545 US 1155 (2005) (holding that defendant cannot
satisfy the second prong of Strickland where ldquothere was overwhelming evidence of
[defendantrsquos] guiltrdquo) Campbell v United States 364 F3d 727 736 (6th Cir
2004) cert denied 543 US 1119 (2005) (ldquoGiven the overwhelming evidence
establishing [defendantrsquos] guilt we believe that he would not have been able to
show that but for his attorneyrsquos failure to object to the prosecutorrsquos alleged
-42shy
misconduct the result would have been differentrdquo)
Accordingly even if this Court determines that the record is sufficient for it
to address defendantrsquos ineffective-assistance claim on direct appeal it should
reject this claim based on his failure to satisfy the second prong of the Strickland
inquiry
CONCLUSION
For the foregoing reasons this Court should affirm the judgment below
Respectfully submitted
GRACE CHUNG BECKER Acting Assistant Attorney General Civil Rights Division
DIANA K FLYNN DIRK C PHILLIPS Attorneys US Department of Justice Civil Rights Divisions Appellate Section Ben Franklin Station PO Box 14403 Washington DC 20044-4403 (202) 305-4876
CERTIFICATE OF COMPLIANCE
Pursuant to Federal Rule of Appellate Procedure 32(a)(7)(B) I hereby
certify that this brief is proportionally spaced 14-point Times New Roman font
Per WordPerfect 12 software the brief contains 9022 words excluding those
parts exempted by Federal Rule of Appellate Procedure 32(a)(7)(B)(iii)
DIRK C PHILLIPS Attorney
DATED June 18 2008
CERTIFICATE OF SERVICE
I hereby certify that on June 18 2008 a copy of the foregoing PROOF
BRIEF FOR THE UNITED STATES AS PLAINTIFF-APPELLEE was served by
first class mail postage prepaid on counsel of record at the following address
Joan E Morgan 2057 Orchard Lake Road Sylvan Lake MI 48320
DIRK C PHILLIPS Attorney
APPELLEErsquoS DESIGNATION OF APPENDIX CONTENTS
APPELLEErsquoS DESIGNATION OF APPENDIX CONTENTS
Appellee United States of America designates the following items to be
ldquo[t]his Court has lsquoroutinely concluded that such claims are best brought by a
defendant in a post-conviction proceeding under 28 USC sect 2255 so that the
-37shy
parties can develop an adequate record on the issuersquordquo Martinez 430 F3d at 338
(quoting United States v Brown 332 F3d 363 368 (6th Cir 2003)) ldquoThere is
however lsquoa narrow exceptionrsquo to this rule lsquowhen the existing record is adequate to
assess properly the merits of the claimrsquordquo United States v Hynes 467 F3d 951
969 (6th Cir 2006) (quoting United States v Franklin 415 F3d 537 555-556
(6th Cir 2005)) See also United States v Winkle 477 F3d 407 421 (6th Cir
2007) (ldquoThis Court typically will not review a claim of ineffective assistance on
direct appeal except in rare cases where the error is apparent from the existing
recordrdquo) (quoting United States v Lopez-Medina 461 F3d 724 737 (6th Cir
2006))
No basis exists for departing from the general rule against addressing
ineffective-assistance claims on direct appeal As this Court has noted ldquo[t]he trial
process contains a myriad of complex decisions that for strategic reasons are
sound when made but may appear unsound with the benefit of hindsightrdquo United
States v Davis 306 F3d 398 422 (6th Cir 2002) cert denied 537 US 1208
(2003) (quoting United States v Fortson 194 F3d 730 736 (6th Cir 1999))
Moreover ldquo[j]udicial scrutiny of counselrsquos performance must be highly
deferentialrdquo and ldquoa court must indulge a strong presumption that counselrsquos
conduct falls within the wide range of reasonable professional assistancerdquo
-38shy
Strickland v Washington 466 US 668 689 (1984) Thus to establish ineffective
assistance ldquothe defendant must overcome the presumption that under the
circumstances the challenged action lsquomight be considered sound trial strategyrsquordquo
Ibid (quoting Michel v Louisiana 350 US 91 101 (1955))
Here the decision by defendantrsquos retained trial counsel to elicit the
challenged statements during cross-examination of a government witness
undeniably constitutes an element of trial strategy that cannot be analyzed at this
stage of the proceedings In particular because this is a direct appeal there is no
evidence in the record regarding defense counselrsquos trial strategy This Court
repeatedly has refused to review ineffective-assistance claims under such
circumstances See eg Lopez-Medina 461 F3d at 737 (ldquoAbsent evidence
specifically addressing counselrsquos performance we cannot determine whether his
actions reflected a reasoned trial strategyrdquo) United States v Sullivan 431 F3d
976 986 (6th Cir 2005) (ldquoWithout an explanation from trial counsel as to why he
failed to call the alibi witness we have no basis to determine whether this decision
was the result of inadequate representation or reasonable trial strategyrdquo) United
States v Allison 59 F3d 43 47 (6th Cir) cert denied 516 US 1002 (1995)
(ldquo[T]he sparse record before this court does not reveal whether the attorneyrsquos
actions could be considered sound trial strategyrdquo) United States v Snow 48 F3d
-39shy
198 199 (6th Cir 1995) (ldquoThe record before this court simply is insufficient to
show whether the alleged wrongful acts could be considered sound trial
strategyrdquo) Thus defendantrsquos ineffective-assistance claim must be examined ndash if
at all ndash in a separate collateral proceeding brought pursuant to Section 2255
C The Evidence That Is Available In The Record Does Not Support A Finding Of Ineffective Assistance Of Counsel
As stated above the governmentrsquos position is that the current record is not
sufficient to permit this Court to address defendantrsquos ineffective-assistance claim
in this direct appeal However if the Court disagrees ndash or desires in the interest of
judicial economy to address defendantrsquos claim on direct appeal ndash it should reject
the claim because defendant fails to satisfy the second prong of the ineffective-
assistance inquiry11
11 The government does not concede that the first prong of the Strickland inquiry is satisfied in this case Rather as noted above it is not possible to resolve the issue at this point because the record does not indicate precisely what defendantrsquos trial counsel was thinking what his strategy was or why he elected to pursue certain lines of questioning In the event that defendant elects to bring a collateral challenge pursuant to Section 2255 the government reserves the right to address the first prong of Strickland inquiry and to further develop its argument as to the second prong The governmentrsquos decision not to do so in this brief is based on the incomplete nature of the record with regard to the Strickland inquiry and should not be construed as a waiver or forfeiture of any arguments relating to defendantrsquos ineffective-assistance claim
-40shy
1 Standard For Establishing Ineffective Assistance Of Counsel
To prove ineffective assistance of counsel under Strickland a defendant
first ldquomust demonstrate that counselrsquos performance fell lsquobelow the objective
standard of reasonablenessrsquordquo Ivory v Jackson 509 F3d 284 294 (6th Cir 2007)
cert denied 128 S Ct 1897 (2008) (quoting Strickland 466 US at 688)) ldquoThe
defendant must then demonstrate that lsquothere is a reasonable probability that but
for counselrsquos unprofessional errors the result of the proceeding would have been
different A reasonable probability is a probability sufficient to undermine the
confidence in the outcomersquordquo Ibid (quoting Strickland 466 US at 694)
Significantly this Court ldquoneed not decide whether defense counsel
performed deficiently if disposing of an ineffective-assistance claim on the ground
of lack of sufficient prejudice would be easierrdquo Hynes 467 F3d at 970 See also
Ivory 509 F3d at 294 (ldquo[A] court need not determine whether counselrsquos
performance was deficient before examining the prejudice suffered by the
defendant as a result of the alleged deficiencies If it is easier to dispose of
an ineffectiveness claim on the ground of lack of sufficient prejudice which we
expect will often be so that course should be followedrdquo) (quoting Strickland 466
US at 697)
-41shy
2 Defendant Is Unable To Demonstrate Sufficient Prejudice And Therefore Cannot Satisfy The Second Prong Of The Inquiry
ldquoTo show prejudice [defendant] must demonstrate that lsquothere is a
reasonable probability that but for counselrsquos unprofessional errors the result of
the proceeding would have been differentrsquordquo Harrison v Motley 478 F3d 750
756 (6th Cir) cert denied 128 S Ct 444 (2007) (quoting Strickland 466 US at
694)) As set forth above in Section IIC the evidence of defendantrsquos guilt is
overwhelming and the result therefore would not have been different absent the
challenged statements This Court repeatedly has determined that the second
prong of the Strickland inquiry is not met under such circumstances See eg
Harrison 478 F3d at 757 (defendant ldquofailed to show that his attorneysrsquo alleged
conflict of interest resulted in prejudicerdquo where ldquothe evidence admitted against
[defendant] at trial was lsquooverwhelmingrsquordquo) Hicks v Collins 384 F3d 204 215
(6th Cir 2004) cert denied 545 US 1155 (2005) (holding that defendant cannot
satisfy the second prong of Strickland where ldquothere was overwhelming evidence of
[defendantrsquos] guiltrdquo) Campbell v United States 364 F3d 727 736 (6th Cir
2004) cert denied 543 US 1119 (2005) (ldquoGiven the overwhelming evidence
establishing [defendantrsquos] guilt we believe that he would not have been able to
show that but for his attorneyrsquos failure to object to the prosecutorrsquos alleged
-42shy
misconduct the result would have been differentrdquo)
Accordingly even if this Court determines that the record is sufficient for it
to address defendantrsquos ineffective-assistance claim on direct appeal it should
reject this claim based on his failure to satisfy the second prong of the Strickland
inquiry
CONCLUSION
For the foregoing reasons this Court should affirm the judgment below
Respectfully submitted
GRACE CHUNG BECKER Acting Assistant Attorney General Civil Rights Division
DIANA K FLYNN DIRK C PHILLIPS Attorneys US Department of Justice Civil Rights Divisions Appellate Section Ben Franklin Station PO Box 14403 Washington DC 20044-4403 (202) 305-4876
CERTIFICATE OF COMPLIANCE
Pursuant to Federal Rule of Appellate Procedure 32(a)(7)(B) I hereby
certify that this brief is proportionally spaced 14-point Times New Roman font
Per WordPerfect 12 software the brief contains 9022 words excluding those
parts exempted by Federal Rule of Appellate Procedure 32(a)(7)(B)(iii)
DIRK C PHILLIPS Attorney
DATED June 18 2008
CERTIFICATE OF SERVICE
I hereby certify that on June 18 2008 a copy of the foregoing PROOF
BRIEF FOR THE UNITED STATES AS PLAINTIFF-APPELLEE was served by
first class mail postage prepaid on counsel of record at the following address
Joan E Morgan 2057 Orchard Lake Road Sylvan Lake MI 48320
DIRK C PHILLIPS Attorney
APPELLEErsquoS DESIGNATION OF APPENDIX CONTENTS
APPELLEErsquoS DESIGNATION OF APPENDIX CONTENTS
Appellee United States of America designates the following items to be
parties can develop an adequate record on the issuersquordquo Martinez 430 F3d at 338
(quoting United States v Brown 332 F3d 363 368 (6th Cir 2003)) ldquoThere is
however lsquoa narrow exceptionrsquo to this rule lsquowhen the existing record is adequate to
assess properly the merits of the claimrsquordquo United States v Hynes 467 F3d 951
969 (6th Cir 2006) (quoting United States v Franklin 415 F3d 537 555-556
(6th Cir 2005)) See also United States v Winkle 477 F3d 407 421 (6th Cir
2007) (ldquoThis Court typically will not review a claim of ineffective assistance on
direct appeal except in rare cases where the error is apparent from the existing
recordrdquo) (quoting United States v Lopez-Medina 461 F3d 724 737 (6th Cir
2006))
No basis exists for departing from the general rule against addressing
ineffective-assistance claims on direct appeal As this Court has noted ldquo[t]he trial
process contains a myriad of complex decisions that for strategic reasons are
sound when made but may appear unsound with the benefit of hindsightrdquo United
States v Davis 306 F3d 398 422 (6th Cir 2002) cert denied 537 US 1208
(2003) (quoting United States v Fortson 194 F3d 730 736 (6th Cir 1999))
Moreover ldquo[j]udicial scrutiny of counselrsquos performance must be highly
deferentialrdquo and ldquoa court must indulge a strong presumption that counselrsquos
conduct falls within the wide range of reasonable professional assistancerdquo
-38shy
Strickland v Washington 466 US 668 689 (1984) Thus to establish ineffective
assistance ldquothe defendant must overcome the presumption that under the
circumstances the challenged action lsquomight be considered sound trial strategyrsquordquo
Ibid (quoting Michel v Louisiana 350 US 91 101 (1955))
Here the decision by defendantrsquos retained trial counsel to elicit the
challenged statements during cross-examination of a government witness
undeniably constitutes an element of trial strategy that cannot be analyzed at this
stage of the proceedings In particular because this is a direct appeal there is no
evidence in the record regarding defense counselrsquos trial strategy This Court
repeatedly has refused to review ineffective-assistance claims under such
circumstances See eg Lopez-Medina 461 F3d at 737 (ldquoAbsent evidence
specifically addressing counselrsquos performance we cannot determine whether his
actions reflected a reasoned trial strategyrdquo) United States v Sullivan 431 F3d
976 986 (6th Cir 2005) (ldquoWithout an explanation from trial counsel as to why he
failed to call the alibi witness we have no basis to determine whether this decision
was the result of inadequate representation or reasonable trial strategyrdquo) United
States v Allison 59 F3d 43 47 (6th Cir) cert denied 516 US 1002 (1995)
(ldquo[T]he sparse record before this court does not reveal whether the attorneyrsquos
actions could be considered sound trial strategyrdquo) United States v Snow 48 F3d
-39shy
198 199 (6th Cir 1995) (ldquoThe record before this court simply is insufficient to
show whether the alleged wrongful acts could be considered sound trial
strategyrdquo) Thus defendantrsquos ineffective-assistance claim must be examined ndash if
at all ndash in a separate collateral proceeding brought pursuant to Section 2255
C The Evidence That Is Available In The Record Does Not Support A Finding Of Ineffective Assistance Of Counsel
As stated above the governmentrsquos position is that the current record is not
sufficient to permit this Court to address defendantrsquos ineffective-assistance claim
in this direct appeal However if the Court disagrees ndash or desires in the interest of
judicial economy to address defendantrsquos claim on direct appeal ndash it should reject
the claim because defendant fails to satisfy the second prong of the ineffective-
assistance inquiry11
11 The government does not concede that the first prong of the Strickland inquiry is satisfied in this case Rather as noted above it is not possible to resolve the issue at this point because the record does not indicate precisely what defendantrsquos trial counsel was thinking what his strategy was or why he elected to pursue certain lines of questioning In the event that defendant elects to bring a collateral challenge pursuant to Section 2255 the government reserves the right to address the first prong of Strickland inquiry and to further develop its argument as to the second prong The governmentrsquos decision not to do so in this brief is based on the incomplete nature of the record with regard to the Strickland inquiry and should not be construed as a waiver or forfeiture of any arguments relating to defendantrsquos ineffective-assistance claim
-40shy
1 Standard For Establishing Ineffective Assistance Of Counsel
To prove ineffective assistance of counsel under Strickland a defendant
first ldquomust demonstrate that counselrsquos performance fell lsquobelow the objective
standard of reasonablenessrsquordquo Ivory v Jackson 509 F3d 284 294 (6th Cir 2007)
cert denied 128 S Ct 1897 (2008) (quoting Strickland 466 US at 688)) ldquoThe
defendant must then demonstrate that lsquothere is a reasonable probability that but
for counselrsquos unprofessional errors the result of the proceeding would have been
different A reasonable probability is a probability sufficient to undermine the
confidence in the outcomersquordquo Ibid (quoting Strickland 466 US at 694)
Significantly this Court ldquoneed not decide whether defense counsel
performed deficiently if disposing of an ineffective-assistance claim on the ground
of lack of sufficient prejudice would be easierrdquo Hynes 467 F3d at 970 See also
Ivory 509 F3d at 294 (ldquo[A] court need not determine whether counselrsquos
performance was deficient before examining the prejudice suffered by the
defendant as a result of the alleged deficiencies If it is easier to dispose of
an ineffectiveness claim on the ground of lack of sufficient prejudice which we
expect will often be so that course should be followedrdquo) (quoting Strickland 466
US at 697)
-41shy
2 Defendant Is Unable To Demonstrate Sufficient Prejudice And Therefore Cannot Satisfy The Second Prong Of The Inquiry
ldquoTo show prejudice [defendant] must demonstrate that lsquothere is a
reasonable probability that but for counselrsquos unprofessional errors the result of
the proceeding would have been differentrsquordquo Harrison v Motley 478 F3d 750
756 (6th Cir) cert denied 128 S Ct 444 (2007) (quoting Strickland 466 US at
694)) As set forth above in Section IIC the evidence of defendantrsquos guilt is
overwhelming and the result therefore would not have been different absent the
challenged statements This Court repeatedly has determined that the second
prong of the Strickland inquiry is not met under such circumstances See eg
Harrison 478 F3d at 757 (defendant ldquofailed to show that his attorneysrsquo alleged
conflict of interest resulted in prejudicerdquo where ldquothe evidence admitted against
[defendant] at trial was lsquooverwhelmingrsquordquo) Hicks v Collins 384 F3d 204 215
(6th Cir 2004) cert denied 545 US 1155 (2005) (holding that defendant cannot
satisfy the second prong of Strickland where ldquothere was overwhelming evidence of
[defendantrsquos] guiltrdquo) Campbell v United States 364 F3d 727 736 (6th Cir
2004) cert denied 543 US 1119 (2005) (ldquoGiven the overwhelming evidence
establishing [defendantrsquos] guilt we believe that he would not have been able to
show that but for his attorneyrsquos failure to object to the prosecutorrsquos alleged
-42shy
misconduct the result would have been differentrdquo)
Accordingly even if this Court determines that the record is sufficient for it
to address defendantrsquos ineffective-assistance claim on direct appeal it should
reject this claim based on his failure to satisfy the second prong of the Strickland
inquiry
CONCLUSION
For the foregoing reasons this Court should affirm the judgment below
Respectfully submitted
GRACE CHUNG BECKER Acting Assistant Attorney General Civil Rights Division
DIANA K FLYNN DIRK C PHILLIPS Attorneys US Department of Justice Civil Rights Divisions Appellate Section Ben Franklin Station PO Box 14403 Washington DC 20044-4403 (202) 305-4876
CERTIFICATE OF COMPLIANCE
Pursuant to Federal Rule of Appellate Procedure 32(a)(7)(B) I hereby
certify that this brief is proportionally spaced 14-point Times New Roman font
Per WordPerfect 12 software the brief contains 9022 words excluding those
parts exempted by Federal Rule of Appellate Procedure 32(a)(7)(B)(iii)
DIRK C PHILLIPS Attorney
DATED June 18 2008
CERTIFICATE OF SERVICE
I hereby certify that on June 18 2008 a copy of the foregoing PROOF
BRIEF FOR THE UNITED STATES AS PLAINTIFF-APPELLEE was served by
first class mail postage prepaid on counsel of record at the following address
Joan E Morgan 2057 Orchard Lake Road Sylvan Lake MI 48320
DIRK C PHILLIPS Attorney
APPELLEErsquoS DESIGNATION OF APPENDIX CONTENTS
APPELLEErsquoS DESIGNATION OF APPENDIX CONTENTS
Appellee United States of America designates the following items to be
Strickland v Washington 466 US 668 689 (1984) Thus to establish ineffective
assistance ldquothe defendant must overcome the presumption that under the
circumstances the challenged action lsquomight be considered sound trial strategyrsquordquo
Ibid (quoting Michel v Louisiana 350 US 91 101 (1955))
Here the decision by defendantrsquos retained trial counsel to elicit the
challenged statements during cross-examination of a government witness
undeniably constitutes an element of trial strategy that cannot be analyzed at this
stage of the proceedings In particular because this is a direct appeal there is no
evidence in the record regarding defense counselrsquos trial strategy This Court
repeatedly has refused to review ineffective-assistance claims under such
circumstances See eg Lopez-Medina 461 F3d at 737 (ldquoAbsent evidence
specifically addressing counselrsquos performance we cannot determine whether his
actions reflected a reasoned trial strategyrdquo) United States v Sullivan 431 F3d
976 986 (6th Cir 2005) (ldquoWithout an explanation from trial counsel as to why he
failed to call the alibi witness we have no basis to determine whether this decision
was the result of inadequate representation or reasonable trial strategyrdquo) United
States v Allison 59 F3d 43 47 (6th Cir) cert denied 516 US 1002 (1995)
(ldquo[T]he sparse record before this court does not reveal whether the attorneyrsquos
actions could be considered sound trial strategyrdquo) United States v Snow 48 F3d
-39shy
198 199 (6th Cir 1995) (ldquoThe record before this court simply is insufficient to
show whether the alleged wrongful acts could be considered sound trial
strategyrdquo) Thus defendantrsquos ineffective-assistance claim must be examined ndash if
at all ndash in a separate collateral proceeding brought pursuant to Section 2255
C The Evidence That Is Available In The Record Does Not Support A Finding Of Ineffective Assistance Of Counsel
As stated above the governmentrsquos position is that the current record is not
sufficient to permit this Court to address defendantrsquos ineffective-assistance claim
in this direct appeal However if the Court disagrees ndash or desires in the interest of
judicial economy to address defendantrsquos claim on direct appeal ndash it should reject
the claim because defendant fails to satisfy the second prong of the ineffective-
assistance inquiry11
11 The government does not concede that the first prong of the Strickland inquiry is satisfied in this case Rather as noted above it is not possible to resolve the issue at this point because the record does not indicate precisely what defendantrsquos trial counsel was thinking what his strategy was or why he elected to pursue certain lines of questioning In the event that defendant elects to bring a collateral challenge pursuant to Section 2255 the government reserves the right to address the first prong of Strickland inquiry and to further develop its argument as to the second prong The governmentrsquos decision not to do so in this brief is based on the incomplete nature of the record with regard to the Strickland inquiry and should not be construed as a waiver or forfeiture of any arguments relating to defendantrsquos ineffective-assistance claim
-40shy
1 Standard For Establishing Ineffective Assistance Of Counsel
To prove ineffective assistance of counsel under Strickland a defendant
first ldquomust demonstrate that counselrsquos performance fell lsquobelow the objective
standard of reasonablenessrsquordquo Ivory v Jackson 509 F3d 284 294 (6th Cir 2007)
cert denied 128 S Ct 1897 (2008) (quoting Strickland 466 US at 688)) ldquoThe
defendant must then demonstrate that lsquothere is a reasonable probability that but
for counselrsquos unprofessional errors the result of the proceeding would have been
different A reasonable probability is a probability sufficient to undermine the
confidence in the outcomersquordquo Ibid (quoting Strickland 466 US at 694)
Significantly this Court ldquoneed not decide whether defense counsel
performed deficiently if disposing of an ineffective-assistance claim on the ground
of lack of sufficient prejudice would be easierrdquo Hynes 467 F3d at 970 See also
Ivory 509 F3d at 294 (ldquo[A] court need not determine whether counselrsquos
performance was deficient before examining the prejudice suffered by the
defendant as a result of the alleged deficiencies If it is easier to dispose of
an ineffectiveness claim on the ground of lack of sufficient prejudice which we
expect will often be so that course should be followedrdquo) (quoting Strickland 466
US at 697)
-41shy
2 Defendant Is Unable To Demonstrate Sufficient Prejudice And Therefore Cannot Satisfy The Second Prong Of The Inquiry
ldquoTo show prejudice [defendant] must demonstrate that lsquothere is a
reasonable probability that but for counselrsquos unprofessional errors the result of
the proceeding would have been differentrsquordquo Harrison v Motley 478 F3d 750
756 (6th Cir) cert denied 128 S Ct 444 (2007) (quoting Strickland 466 US at
694)) As set forth above in Section IIC the evidence of defendantrsquos guilt is
overwhelming and the result therefore would not have been different absent the
challenged statements This Court repeatedly has determined that the second
prong of the Strickland inquiry is not met under such circumstances See eg
Harrison 478 F3d at 757 (defendant ldquofailed to show that his attorneysrsquo alleged
conflict of interest resulted in prejudicerdquo where ldquothe evidence admitted against
[defendant] at trial was lsquooverwhelmingrsquordquo) Hicks v Collins 384 F3d 204 215
(6th Cir 2004) cert denied 545 US 1155 (2005) (holding that defendant cannot
satisfy the second prong of Strickland where ldquothere was overwhelming evidence of
[defendantrsquos] guiltrdquo) Campbell v United States 364 F3d 727 736 (6th Cir
2004) cert denied 543 US 1119 (2005) (ldquoGiven the overwhelming evidence
establishing [defendantrsquos] guilt we believe that he would not have been able to
show that but for his attorneyrsquos failure to object to the prosecutorrsquos alleged
-42shy
misconduct the result would have been differentrdquo)
Accordingly even if this Court determines that the record is sufficient for it
to address defendantrsquos ineffective-assistance claim on direct appeal it should
reject this claim based on his failure to satisfy the second prong of the Strickland
inquiry
CONCLUSION
For the foregoing reasons this Court should affirm the judgment below
Respectfully submitted
GRACE CHUNG BECKER Acting Assistant Attorney General Civil Rights Division
DIANA K FLYNN DIRK C PHILLIPS Attorneys US Department of Justice Civil Rights Divisions Appellate Section Ben Franklin Station PO Box 14403 Washington DC 20044-4403 (202) 305-4876
CERTIFICATE OF COMPLIANCE
Pursuant to Federal Rule of Appellate Procedure 32(a)(7)(B) I hereby
certify that this brief is proportionally spaced 14-point Times New Roman font
Per WordPerfect 12 software the brief contains 9022 words excluding those
parts exempted by Federal Rule of Appellate Procedure 32(a)(7)(B)(iii)
DIRK C PHILLIPS Attorney
DATED June 18 2008
CERTIFICATE OF SERVICE
I hereby certify that on June 18 2008 a copy of the foregoing PROOF
BRIEF FOR THE UNITED STATES AS PLAINTIFF-APPELLEE was served by
first class mail postage prepaid on counsel of record at the following address
Joan E Morgan 2057 Orchard Lake Road Sylvan Lake MI 48320
DIRK C PHILLIPS Attorney
APPELLEErsquoS DESIGNATION OF APPENDIX CONTENTS
APPELLEErsquoS DESIGNATION OF APPENDIX CONTENTS
Appellee United States of America designates the following items to be
198 199 (6th Cir 1995) (ldquoThe record before this court simply is insufficient to
show whether the alleged wrongful acts could be considered sound trial
strategyrdquo) Thus defendantrsquos ineffective-assistance claim must be examined ndash if
at all ndash in a separate collateral proceeding brought pursuant to Section 2255
C The Evidence That Is Available In The Record Does Not Support A Finding Of Ineffective Assistance Of Counsel
As stated above the governmentrsquos position is that the current record is not
sufficient to permit this Court to address defendantrsquos ineffective-assistance claim
in this direct appeal However if the Court disagrees ndash or desires in the interest of
judicial economy to address defendantrsquos claim on direct appeal ndash it should reject
the claim because defendant fails to satisfy the second prong of the ineffective-
assistance inquiry11
11 The government does not concede that the first prong of the Strickland inquiry is satisfied in this case Rather as noted above it is not possible to resolve the issue at this point because the record does not indicate precisely what defendantrsquos trial counsel was thinking what his strategy was or why he elected to pursue certain lines of questioning In the event that defendant elects to bring a collateral challenge pursuant to Section 2255 the government reserves the right to address the first prong of Strickland inquiry and to further develop its argument as to the second prong The governmentrsquos decision not to do so in this brief is based on the incomplete nature of the record with regard to the Strickland inquiry and should not be construed as a waiver or forfeiture of any arguments relating to defendantrsquos ineffective-assistance claim
-40shy
1 Standard For Establishing Ineffective Assistance Of Counsel
To prove ineffective assistance of counsel under Strickland a defendant
first ldquomust demonstrate that counselrsquos performance fell lsquobelow the objective
standard of reasonablenessrsquordquo Ivory v Jackson 509 F3d 284 294 (6th Cir 2007)
cert denied 128 S Ct 1897 (2008) (quoting Strickland 466 US at 688)) ldquoThe
defendant must then demonstrate that lsquothere is a reasonable probability that but
for counselrsquos unprofessional errors the result of the proceeding would have been
different A reasonable probability is a probability sufficient to undermine the
confidence in the outcomersquordquo Ibid (quoting Strickland 466 US at 694)
Significantly this Court ldquoneed not decide whether defense counsel
performed deficiently if disposing of an ineffective-assistance claim on the ground
of lack of sufficient prejudice would be easierrdquo Hynes 467 F3d at 970 See also
Ivory 509 F3d at 294 (ldquo[A] court need not determine whether counselrsquos
performance was deficient before examining the prejudice suffered by the
defendant as a result of the alleged deficiencies If it is easier to dispose of
an ineffectiveness claim on the ground of lack of sufficient prejudice which we
expect will often be so that course should be followedrdquo) (quoting Strickland 466
US at 697)
-41shy
2 Defendant Is Unable To Demonstrate Sufficient Prejudice And Therefore Cannot Satisfy The Second Prong Of The Inquiry
ldquoTo show prejudice [defendant] must demonstrate that lsquothere is a
reasonable probability that but for counselrsquos unprofessional errors the result of
the proceeding would have been differentrsquordquo Harrison v Motley 478 F3d 750
756 (6th Cir) cert denied 128 S Ct 444 (2007) (quoting Strickland 466 US at
694)) As set forth above in Section IIC the evidence of defendantrsquos guilt is
overwhelming and the result therefore would not have been different absent the
challenged statements This Court repeatedly has determined that the second
prong of the Strickland inquiry is not met under such circumstances See eg
Harrison 478 F3d at 757 (defendant ldquofailed to show that his attorneysrsquo alleged
conflict of interest resulted in prejudicerdquo where ldquothe evidence admitted against
[defendant] at trial was lsquooverwhelmingrsquordquo) Hicks v Collins 384 F3d 204 215
(6th Cir 2004) cert denied 545 US 1155 (2005) (holding that defendant cannot
satisfy the second prong of Strickland where ldquothere was overwhelming evidence of
[defendantrsquos] guiltrdquo) Campbell v United States 364 F3d 727 736 (6th Cir
2004) cert denied 543 US 1119 (2005) (ldquoGiven the overwhelming evidence
establishing [defendantrsquos] guilt we believe that he would not have been able to
show that but for his attorneyrsquos failure to object to the prosecutorrsquos alleged
-42shy
misconduct the result would have been differentrdquo)
Accordingly even if this Court determines that the record is sufficient for it
to address defendantrsquos ineffective-assistance claim on direct appeal it should
reject this claim based on his failure to satisfy the second prong of the Strickland
inquiry
CONCLUSION
For the foregoing reasons this Court should affirm the judgment below
Respectfully submitted
GRACE CHUNG BECKER Acting Assistant Attorney General Civil Rights Division
DIANA K FLYNN DIRK C PHILLIPS Attorneys US Department of Justice Civil Rights Divisions Appellate Section Ben Franklin Station PO Box 14403 Washington DC 20044-4403 (202) 305-4876
CERTIFICATE OF COMPLIANCE
Pursuant to Federal Rule of Appellate Procedure 32(a)(7)(B) I hereby
certify that this brief is proportionally spaced 14-point Times New Roman font
Per WordPerfect 12 software the brief contains 9022 words excluding those
parts exempted by Federal Rule of Appellate Procedure 32(a)(7)(B)(iii)
DIRK C PHILLIPS Attorney
DATED June 18 2008
CERTIFICATE OF SERVICE
I hereby certify that on June 18 2008 a copy of the foregoing PROOF
BRIEF FOR THE UNITED STATES AS PLAINTIFF-APPELLEE was served by
first class mail postage prepaid on counsel of record at the following address
Joan E Morgan 2057 Orchard Lake Road Sylvan Lake MI 48320
DIRK C PHILLIPS Attorney
APPELLEErsquoS DESIGNATION OF APPENDIX CONTENTS
APPELLEErsquoS DESIGNATION OF APPENDIX CONTENTS
Appellee United States of America designates the following items to be
1 Standard For Establishing Ineffective Assistance Of Counsel
To prove ineffective assistance of counsel under Strickland a defendant
first ldquomust demonstrate that counselrsquos performance fell lsquobelow the objective
standard of reasonablenessrsquordquo Ivory v Jackson 509 F3d 284 294 (6th Cir 2007)
cert denied 128 S Ct 1897 (2008) (quoting Strickland 466 US at 688)) ldquoThe
defendant must then demonstrate that lsquothere is a reasonable probability that but
for counselrsquos unprofessional errors the result of the proceeding would have been
different A reasonable probability is a probability sufficient to undermine the
confidence in the outcomersquordquo Ibid (quoting Strickland 466 US at 694)
Significantly this Court ldquoneed not decide whether defense counsel
performed deficiently if disposing of an ineffective-assistance claim on the ground
of lack of sufficient prejudice would be easierrdquo Hynes 467 F3d at 970 See also
Ivory 509 F3d at 294 (ldquo[A] court need not determine whether counselrsquos
performance was deficient before examining the prejudice suffered by the
defendant as a result of the alleged deficiencies If it is easier to dispose of
an ineffectiveness claim on the ground of lack of sufficient prejudice which we
expect will often be so that course should be followedrdquo) (quoting Strickland 466
US at 697)
-41shy
2 Defendant Is Unable To Demonstrate Sufficient Prejudice And Therefore Cannot Satisfy The Second Prong Of The Inquiry
ldquoTo show prejudice [defendant] must demonstrate that lsquothere is a
reasonable probability that but for counselrsquos unprofessional errors the result of
the proceeding would have been differentrsquordquo Harrison v Motley 478 F3d 750
756 (6th Cir) cert denied 128 S Ct 444 (2007) (quoting Strickland 466 US at
694)) As set forth above in Section IIC the evidence of defendantrsquos guilt is
overwhelming and the result therefore would not have been different absent the
challenged statements This Court repeatedly has determined that the second
prong of the Strickland inquiry is not met under such circumstances See eg
Harrison 478 F3d at 757 (defendant ldquofailed to show that his attorneysrsquo alleged
conflict of interest resulted in prejudicerdquo where ldquothe evidence admitted against
[defendant] at trial was lsquooverwhelmingrsquordquo) Hicks v Collins 384 F3d 204 215
(6th Cir 2004) cert denied 545 US 1155 (2005) (holding that defendant cannot
satisfy the second prong of Strickland where ldquothere was overwhelming evidence of
[defendantrsquos] guiltrdquo) Campbell v United States 364 F3d 727 736 (6th Cir
2004) cert denied 543 US 1119 (2005) (ldquoGiven the overwhelming evidence
establishing [defendantrsquos] guilt we believe that he would not have been able to
show that but for his attorneyrsquos failure to object to the prosecutorrsquos alleged
-42shy
misconduct the result would have been differentrdquo)
Accordingly even if this Court determines that the record is sufficient for it
to address defendantrsquos ineffective-assistance claim on direct appeal it should
reject this claim based on his failure to satisfy the second prong of the Strickland
inquiry
CONCLUSION
For the foregoing reasons this Court should affirm the judgment below
Respectfully submitted
GRACE CHUNG BECKER Acting Assistant Attorney General Civil Rights Division
DIANA K FLYNN DIRK C PHILLIPS Attorneys US Department of Justice Civil Rights Divisions Appellate Section Ben Franklin Station PO Box 14403 Washington DC 20044-4403 (202) 305-4876
CERTIFICATE OF COMPLIANCE
Pursuant to Federal Rule of Appellate Procedure 32(a)(7)(B) I hereby
certify that this brief is proportionally spaced 14-point Times New Roman font
Per WordPerfect 12 software the brief contains 9022 words excluding those
parts exempted by Federal Rule of Appellate Procedure 32(a)(7)(B)(iii)
DIRK C PHILLIPS Attorney
DATED June 18 2008
CERTIFICATE OF SERVICE
I hereby certify that on June 18 2008 a copy of the foregoing PROOF
BRIEF FOR THE UNITED STATES AS PLAINTIFF-APPELLEE was served by
first class mail postage prepaid on counsel of record at the following address
Joan E Morgan 2057 Orchard Lake Road Sylvan Lake MI 48320
DIRK C PHILLIPS Attorney
APPELLEErsquoS DESIGNATION OF APPENDIX CONTENTS
APPELLEErsquoS DESIGNATION OF APPENDIX CONTENTS
Appellee United States of America designates the following items to be
2 Defendant Is Unable To Demonstrate Sufficient Prejudice And Therefore Cannot Satisfy The Second Prong Of The Inquiry
ldquoTo show prejudice [defendant] must demonstrate that lsquothere is a
reasonable probability that but for counselrsquos unprofessional errors the result of
the proceeding would have been differentrsquordquo Harrison v Motley 478 F3d 750
756 (6th Cir) cert denied 128 S Ct 444 (2007) (quoting Strickland 466 US at
694)) As set forth above in Section IIC the evidence of defendantrsquos guilt is
overwhelming and the result therefore would not have been different absent the
challenged statements This Court repeatedly has determined that the second
prong of the Strickland inquiry is not met under such circumstances See eg
Harrison 478 F3d at 757 (defendant ldquofailed to show that his attorneysrsquo alleged
conflict of interest resulted in prejudicerdquo where ldquothe evidence admitted against
[defendant] at trial was lsquooverwhelmingrsquordquo) Hicks v Collins 384 F3d 204 215
(6th Cir 2004) cert denied 545 US 1155 (2005) (holding that defendant cannot
satisfy the second prong of Strickland where ldquothere was overwhelming evidence of
[defendantrsquos] guiltrdquo) Campbell v United States 364 F3d 727 736 (6th Cir
2004) cert denied 543 US 1119 (2005) (ldquoGiven the overwhelming evidence
establishing [defendantrsquos] guilt we believe that he would not have been able to
show that but for his attorneyrsquos failure to object to the prosecutorrsquos alleged
-42shy
misconduct the result would have been differentrdquo)
Accordingly even if this Court determines that the record is sufficient for it
to address defendantrsquos ineffective-assistance claim on direct appeal it should
reject this claim based on his failure to satisfy the second prong of the Strickland
inquiry
CONCLUSION
For the foregoing reasons this Court should affirm the judgment below
Respectfully submitted
GRACE CHUNG BECKER Acting Assistant Attorney General Civil Rights Division
DIANA K FLYNN DIRK C PHILLIPS Attorneys US Department of Justice Civil Rights Divisions Appellate Section Ben Franklin Station PO Box 14403 Washington DC 20044-4403 (202) 305-4876
CERTIFICATE OF COMPLIANCE
Pursuant to Federal Rule of Appellate Procedure 32(a)(7)(B) I hereby
certify that this brief is proportionally spaced 14-point Times New Roman font
Per WordPerfect 12 software the brief contains 9022 words excluding those
parts exempted by Federal Rule of Appellate Procedure 32(a)(7)(B)(iii)
DIRK C PHILLIPS Attorney
DATED June 18 2008
CERTIFICATE OF SERVICE
I hereby certify that on June 18 2008 a copy of the foregoing PROOF
BRIEF FOR THE UNITED STATES AS PLAINTIFF-APPELLEE was served by
first class mail postage prepaid on counsel of record at the following address
Joan E Morgan 2057 Orchard Lake Road Sylvan Lake MI 48320
DIRK C PHILLIPS Attorney
APPELLEErsquoS DESIGNATION OF APPENDIX CONTENTS
APPELLEErsquoS DESIGNATION OF APPENDIX CONTENTS
Appellee United States of America designates the following items to be
misconduct the result would have been differentrdquo)
Accordingly even if this Court determines that the record is sufficient for it
to address defendantrsquos ineffective-assistance claim on direct appeal it should
reject this claim based on his failure to satisfy the second prong of the Strickland
inquiry
CONCLUSION
For the foregoing reasons this Court should affirm the judgment below
Respectfully submitted
GRACE CHUNG BECKER Acting Assistant Attorney General Civil Rights Division
DIANA K FLYNN DIRK C PHILLIPS Attorneys US Department of Justice Civil Rights Divisions Appellate Section Ben Franklin Station PO Box 14403 Washington DC 20044-4403 (202) 305-4876
CERTIFICATE OF COMPLIANCE
Pursuant to Federal Rule of Appellate Procedure 32(a)(7)(B) I hereby
certify that this brief is proportionally spaced 14-point Times New Roman font
Per WordPerfect 12 software the brief contains 9022 words excluding those
parts exempted by Federal Rule of Appellate Procedure 32(a)(7)(B)(iii)
DIRK C PHILLIPS Attorney
DATED June 18 2008
CERTIFICATE OF SERVICE
I hereby certify that on June 18 2008 a copy of the foregoing PROOF
BRIEF FOR THE UNITED STATES AS PLAINTIFF-APPELLEE was served by
first class mail postage prepaid on counsel of record at the following address
Joan E Morgan 2057 Orchard Lake Road Sylvan Lake MI 48320
DIRK C PHILLIPS Attorney
APPELLEErsquoS DESIGNATION OF APPENDIX CONTENTS
APPELLEErsquoS DESIGNATION OF APPENDIX CONTENTS
Appellee United States of America designates the following items to be