1

RECOMMENDED FOR FULL-TEXT PUBLICATION

Pursuant to Sixth Circuit Rule 206

ELECTRONIC CITATION: 2003 FED App. 0327P (6th Cir.)

File Name: 03a0327p.06

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

_________________

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v.

WARD WESLEY WRIGHT,

 Defendant-Appellant.

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No. 01-2569

Appeal from the United States District Court

for the Eastern District of Michigan at Detroit.

No. 96-80876—Patrick J. Duggan, District Judge.

Argued: August 5, 2003

Decided and Filed: September 12, 2003 

Before: KEITH, COLE, and COOK, Circuit Judges.

_________________

COUNSEL

ARGUED: Richard J. Amberg, Jr., Waterford, Michigan, for

Appellant. Joseph J. Allen, ASSISTANT UNITED STATES

ATTORNEY, Detroit, Michigan, for Appellee. ON BRIEF:

Richard J. Amberg, Jr., Waterford, Michigan, for Appellant.

Joseph J. Allen, ASSISTANT UNITED STATES

ATTORNEY, Detroit, Michigan, for Appellee.

2 United States v. Wright No. 01-2569

_________________

OPINION

_________________

R. GUY COLE, JR., Circuit Judge. Defendant-Appellant

Ward Wesley Wright appeals hisjury conviction and sentence

for the use of interstate commerce facilities in the commission

of murder for hire, interstate travel in aid of a crime of

violence, and conspiracy to possess with intent to distribute

and to distribute cocaine. Wright raises four arguments on

appeal: (1) the district court erred in denying his motion to

dismiss his indictment based on violations of the statute of

limitations and the Due Process Clause of the Fifth

Amendment; (2) the Government is guilty of prosecutorial

misconduct; (3) the district court erred in denying his motion

to suppress evidence obtained pursuant to a search warrant;

and (4) the district court erred in admitting hearsay evidence.

For reasons stated below, we AFFIRM the jury conviction

and sentence entered by the district court.

I. BACKGROUND

A. Factual Background

Brian Chase, Raymond Kelsey, and William Arbelaez met

while serving time in a Minnesota prison. After all three had

been released in 1992, Chase met Wright while they were

both bouncers at a bar in Michigan. Wright was a member of

the Avengers Motorcycle Club (the “Avengers”) and was

involved with cocaine distribution through the club.

Arbelaez, a Colombian national who trafficked cocaine,

began supplying cocaine to Chase from Colombia, and Chase

in turn began selling cocaine to Wright.

In 1992, Arbelaez was arrested on drug charges in New

Mexico. He escaped from prison and sought to flee to

Colombia. Chase contacted Kelsey, a licensed pilot, and he
No. 01-2569 United States v. Wright 3

agreed to fly Arbelaez out of the United States. Kelsey flew

Arbelaez to the United States-Mexico border, and Arbelaez

fled to Colombia from there.

In 1993, Arbelaez began supplying cocaine to Chase from

Colombia and Kelsey became the pilot of the operation. In

February, Kelsey flew to Los Angeles to retrieve a

fifty-kilogram shipment of cocaine and then flew to Detroit to

deliver it to Chase. Chase sold part of the shipment to David

“Slap” Moore, a member of the Avengers, who would

eventually become Chase’s primary distributor. Chase sold

the other part of his shipment to Wright, who delivered part

of his allotment to Chase’s customers and sold part of his

allotment to his own customers. 

Shortly afterward, Kelsey flew twenty-five kilograms of

another shipment to Chase for distribution. Chase and Kelsey

decided not to pay Arbelaez for the cocaine and told him that

it had been seized by Canadian authorities. In the spring of

1993, Kelsey made another trip to Los Angeles and picked up

what was supposed to be seventy-five kilograms of cocaine.

However, Chase and Kelsey learned that the shipment

contained only sixty-six kilograms. Chase distributed the

drugs without notifying Arbelaez of the deficiency and

Wright received some of the shipment. 

At this point, Moore was no longer distributing cocaine for

Chase. Instead, Moore introduced Chase to his main

customer in Detroit, and Chase supplied cocaine directly to

that customer. Moore wanted a commission from Chase for

the sales to his customer, but Chase refused. Moore told

Chase that he “knew how to take care of business,” and Chase

believed that this was a threat and that Moore intended to kill

him. Chase then discussed the “Moore problem” with Wright

and told Wright that he was willing to give Moore $40,000 to

end the dispute. Chase offered Wright $10,000 to broker the

deal with Moore, but Wright was unable to arrange a deal.

Wright then suggested, “Why don’t you just give me the

money and I’ll kill Mr. Moore.” A few days later, Wright

4 United States v. Wright No. 01-2569

told Chase that Moore had given another Avenger a gun and

$10,000 for a contract murder and that Chase was the target.

Chase and Kelsey then decided to kill Moore to end the

dispute and the perceived threat.

In July 1993, William Anderson Burke, a past national

president of the Avengers, was involved in a motorcycle

accident in Columbus, Ohio. Moore, as an officer in the

Avengers, traveled to Columbus to await Burke’s release

from the hospital. Chase and Wright decided that Wright

could kill Moore while he was in Columbus, and Wright

agreed to accept $50,000 to commit the murder. Wright’s

girlfriend, and later wife, Brenda Schneider, called Moore’s

wife to determine what hotel Moore was staying at in

Columbus.

On July 29, 1993, Wright obtained a .22-caliber pistol and

a car that had been purchased by Chase and Kelsey, and drove

to Columbus. Wright found Moore’s hotel room in the early

hours of July 30, and asked Moore if he could stay the night.

After Moore let him in and went back to sleep, Wright shot

Moore in the head twice. Before leaving, Wright “wiped

down” everything and took Moore’s wallet and pager. He

called Chase, told him everything was okay, and returned to

Chase’s house in Michigan.

Kelsey, who was at the house when Wright returned, used

a welding torch in Chase’s garage to melt the pager, the

wallet, and the gun. Kelsey then piloted a plane, with Chase

and Wright as passengers, and the three men dumped the

melted objects and Wright’s clothes over Lake Huron. Chase

paid Wright $50,000 for the murder on the evening of

July 30.

On August 10, 1993, Wright married his girlfriend, Brenda

Schneider, in Las Vegas using the alias Arthur Anderson.

Wright and his new wife stayed in Las Vegas gambling and

Larry Joe Powell, another Avenger, good friend of Wright,

and FBI informant, wired them money.
No. 01-2569 United States v. Wright 5

After the murder, Arbelaez, who was still living in

Colombia, wanted Chase and Kelsey to pay him for the

twenty-five kilograms of cocaine “lost” to the Canadian

authorities and the nine kilograms of cocaine missing from

the seventy-five-kilogram shipment. Arbelaez devised a plan

for Chase and Kelsey to repay him for the missing cocaine.

He decided that they could steal airplanes and give them to

Arbelaez’s cocaine supplier, the Medellin Cartel in Colombia

(the “Cartel”).

In January 1994, Kelsey flew Chase and Wright, traveling

under the alias of Arthur Anderson, to the island of St. Martin

to meet with Arbelaez to discuss the plane-stealing scheme.

When Arbelaez failed to show, the three flew back to the

United States. Chase and Kelsey then traveled to Venezuela

and Colombia to meet with the Cartel regarding the types of

airplanes that they wanted stolen. In the spring of 1994,

Chase spoke with Kelsey, Wright and Burke and they decided

to steal planes together. Arbelaez also had his relative, Efrain

Ruiz, join the scheme. Kelsey scouted planes, and Wright

and Burke secured aviation fuel in a hangar for refueling the

plane on the way to Colombia. On May 7, 1994, the five of

them successfully stole a United States Forest Service plane

in Atlanta. They flew the plane to Florida where Chase,

Wright and Burke refueled the plane, which Kelsey then flew

to the Cartel in Colombia.

On October 6, 1994, Kelsey stole another plane in

Arkansas, refueled it in Florida, and flew it to Colombia.

Wright did not participate in this theft. In November 1994,

Kelsey picked up cocaine from Arbelaez, and flew it to Chase

and Burke in Michigan. However, Chase and Kelsey did not

pay Arbelaez the entire shipment, and were worried that

Arbelaez would retaliate. They decided to steal another plane

to make up for the missing payment. On February 18, 1996,

Kelsey stole a plane in Florida, and Wright and Burke set up

a refueling site. Kelsey and Chase then flew the plane to

Colombia for delivery to the Cartel.

6 United States v. Wright No. 01-2569

In April 1996, while attempting to return from Colombia,

Kelsey was arrested in St. Martin and he agreed to cooperate

with authorities. He then recorded several conversations with

Chase and Burke regarding drug shipments and Wright’s

involvement in the drug deals. In October 1996, Chase and

Burke went to Detroit, believing that they were to meet

Kelsey for a drug delivery. Instead they were arrested.

Kelsey pleaded guilty to several charges across several states,

including drug trafficking, stealing planes, and aiding and

abetting a murder for hire. He was sentenced to mulitple

terms of imprisonment. In April 1997, government agents

obtained a warrant to search Wright’s Las Vegas apartment

where they recovered evidence linking Wright to the Moore

murder.

B. Procedural Background

Wright was originally charged in an indictment with:

(1) the use of interstate commerce facilities in the commission

of murder for hire, in violation of 18 U.S.C. § 1958;

(2) conspiracy in the use of interstate commerce facilities in

the commission of murder for hire, in violation of 18 U.S.C.

§ 1958; (3) interstate travel in aid of a crime of violence, in

violation of § 1952(a)(2); and (4) conspiracy to possess with

intent to distribute and to distribute cocaine, in violation of

18 U.S.C. §§ 846, 841(a)(1). However, the Grand Jury

returned a First Superseding Indictment on April 22, 1997,

only charging Wright, Chase and Burke with Count Four,

participation in the cocaine conspiracy.

On September 9, 1997, the Government moved to dismiss

the indictment without prejudice as to Wright, arguing that

the prosecution of Wright would jeopardize an ongoing

investigation of the Avengers. The motion was granted. On

July 23, 1998, the Government obtained a Third Superseding

Indictment against Wright, charging Wright with all four

counts of the original criminal complaint. The Government

obtained an order sealing the indictment on the grounds that

the ongoing investigation of the Avengers and the protection
No. 01-2569 United States v. Wright 7

1

By stipulation of the parties, Count Two, conspiracy to use interstate

commerce facilities in the commission of murder for hire, was dismissed

prior to the conclusion of Wright’s trial.

of potential government witnesses and undercover agents

required that the indictment be sealed.

Chase pleaded guilty to conspiracy to possess with intent to

distributecocaine and the use of interstate commerce facilities

in the commission of murder for hire. Judgment was entered

against him on October 7, 1998.

In December 1998, Burke stood trial on the single count in

the First Superseding Indictment, participation in the cocaine

conspiracy. He was convicted by a jury and his conviction

was affirmed on appeal to this Court. United States v. Burke,

No. 98-1800, 2001 WL 392039 (6th Cir. Apr. 9, 2001)

(unpublished). In January 2000, the Government revealed the

identity of the informant being used in the investigation of the

Avengers, Powell, and on January 25, 2000, the Government

obtained an order unsealing the Third Superseding

Indictment. On April 3, 2001, the district court held a hearing

on Wright’s motion to suppress evidence, and that motion

was denied on April 4. On May 8, 2001, the district court

held a hearing on Wright’s motion to dismiss the indictment

based on violations of the statute of limitations, the Due

Process Clause, and his right to a speedy trial. On May 9,

2001, the district court denied that motion.

On June 11, 2001, following eight days of testimony, the

jury found Wright guilty of all three remaining counts of the

Third Superseding Indictment.1 Both Chase and Kelsey

testified against him. Wright was sentenced to two terms of

life imprisonment and one term of sixty months of

imprisonment.

8 United States v. Wright No. 01-2569

2

Section 3282 reads in relevant part: “(a) In general.--Except as

otherwise expressly provided by law, no person shall be prosecuted, tried,

or punished for any offense, not capital, unless the indictment is found or

the information is instituted within five years next after such offense shall

have been committed.”

II. ANALYSIS

A. Motion to Dismiss

Wright argues that the district court erred in denying his

motion to dismiss the murder charges in the Third

Superseding Indictment. He argues that this indictment was

improperly sealed and challenges the denial of the motion to

dismiss based on the expiration of the statute of limitations

and violation of the Due Process Clause. 

Wright was indicted pursuant to the First Superseding

Indictment on April 22, 1997. This indictment charged

Wright only with involvement in the cocaine conspiracy.

Upon motion by the Government and after a hearing, the

indictment was dismissed without prejudice on September 8,

1997. In support of its motion to dismiss, the Government

submitted affidavits from two FBI agents explaining that they

were conducting an ongoing investigation of the Avengers

and that their primary informant was Powell. The

Government argued that proceeding against Wright at that

time would require Powell to testify and thus jeopardize the

safety of Powell and the investigation of the Avengers.

Wright did not object to the Government’s request, but asked

for the dismissal to be with prejudice. 

On July 23, 1998, just prior to the running of the five-year

statute of limitations on the murder for hire charges, see 18

U.S.C. § 3282,2 the Government obtained a Third

Superseding Indictment against Wright and moved to seal the

indictment under Federal Rule of Criminal Procedure
No. 01-2569 United States v. Wright 9

3

Federal Rule of Criminal Procedure 6(e)(4) reads in relevant part:

“A magistrate judge to whom an indictment is returned may direct that the

indictment be kept secret until the defendant is in custody or has been

released pending trial.” 

6(e)(4).3 In its motion to seal the indictment, the Government

stated that the indictment should be sealed because “there is

danger of harm to potential government witnesses, and

undercover agents, if the indictment is disclosed prior to the

completion of a related criminal investigation.” 

The indictments from the Lorain County, Ohio

investigations of criminal activities among the Avengers were

unsealed in September 1999, and in January 2000, Powell’s

identity as an informant was revealed. Wright’s indictment

was unsealed immediately and he was notified of the charges

against him. The Government states that the delay between

the unsealing of the indictments in the Ohio cases and the

unsealing of Wright’s indictment resulted from the

completion of the arrests of several members of the Avengers

in Ohio and Michigan, and the time it took to place Powell in

the Witness Protection Program and to secure the safety of

Powell’s family. 

The decision of a magistrate judge to seal an indictment is

accorded “great deference.” United States v. Burnett, No. 91-

1693, 1992 WL 92669 (6th Cir. Apr. 24, 1992) (per curiam)

(unpublished) (citing United States v. Ramey, 791 F.2d 317,

321 (4th Cir. 1987)). We review a district court’s refusal to

dismiss an indictment for an abuse of discretion. United

States v. Middleton, 246 F.3d 825, 841 (6th Cir. 2001); see

United States v. Bracy, 67 F.3d 1421, 1425 (9th Cir. 1995)

(holding that a district court’s decision to dismiss an

indictment based on a claim of improper sealing is reviewed

for abuse of discretion). The factual findings of the district

court are reviewed for clear error. United States v. Brown,

169 F.3d 344, 348 (6th Cir. 1999). 

10 United States v. Wright No. 01-2569

1. Statute of limitations

The Third Superseding Indictment was unsealed and

reopened on January 25, 2000, eighteen months after the

statute of limitations on Count One, the use of interstate

commerce facilities in the commission of murder for hire, and

Count Three, interstate travel in aid of a crime of violence,

expired. This Court has addressed the legality of sealing

indictments only in a brief, unpublished opinion. Burnett,

1992 WL 92669, at *3 (“A sealed indictment that is not

opened until after the expiration of the statute of limitations

will not bar prosecution unless the defendant can show actual

prejudice.”) (citing United States v. Srulowitz, 819 F.2d 37,

40 (2d Cir.), cert. denied, 484 U.S. 853 (1987)). Our opinion

in Burnett is consistent with other circuit courts that have

considered the issue of sealing indictments in more detailed,

published opinions. Several courts have held that when a

sealed indictment is not opened until after the expiration of

the statute of limitations, the statute ordinarily is not a bar to

prosecution if the indictment was timely filed. See Ramey,

791 F.2d at 320; United States v. Muse, 633 F.2d 1041, 1041

(2d Cir. 1980) (en banc), cert. denied, 450 U.S. 984 (1981).

Other courts also have held that the filing of an indictment

under seal will toll the statute of limitations if the indictment

was properly sealed. See Bracy, 67 F.3d at 1426; United

States v. Sharpe, 995 F.2d 49, 52 (5th Cir. 1993) (per curiam);

Srulowitz, 819 F.2d at 40. However, the Tenth Circuit holds

the minority position that the sealing of an indictment does

not toll the statute of limitations. See United States v.

Thompson, 287 F.3d 1244, 1251-52 (10th Cir. 2002) (refusing

to follow the other circuits and holding that the statute of

limitations is not tolled while an indictment is under seal).

We follow the rule in our decision in Burnett and the majority

of our sister circuits in finding that a timely filed and properly

sealed indictment tolls the statute of limitations. We therefore

must consider two factors when deciding if a sealed

indictment may be opened after the statute of limitation has

expired: (1) whether the indictment was properly sealed, and

(2) whether the defendant has shown actual prejudice from a
No. 01-2569 United States v. Wright 11

4Wright asks us to consider the three-part inquiry set forth in United

States v. Thompson, 104 F. Supp. 2d 1303, 1306-07 (D. Kan.), modified

by, 125 F. Supp. 2d 1297 (D. Kan. 2000), aff’d by, 287 F.3d 1244 (10th

Cir. 2002), to determine whether a sealed indictment tolls the statute of

limitations. The test instructs courts to consider: (1) was the original

decision to seal the indictment proper; (2) if properly sealed, was the

length of time the indictment was sealed reasonable; and (3) was the

defendant prejudiced by the sealing of the indictment. We decline this

invitation to adopt the test in Thompson because the facts of that case are

distinguishable. In Thompson, the court found that the government had

not shown that the indictment was sealed for a legitimate prosecutorial

purpose. Therefore, because we find the lengthy test in Thompson

unnecessarily cumbersome, we find that the question in this case is better

answered without the use of the test articulated by the district court in

Thompson. 

sealed indictment being opened beyond the statute of

limitations.

4

We first must determine whether the indictment against

Wright was properly sealed. The Government has the burden

of setting forth a justification for sealing the indictment. See

Srulowitz, 819 F.2d at 41. We have not specifically answered

the question of what is a proper purpose for sealing an

indictment. However, other circuits have held that any

legitimate prosecutorial purpose or public interest may

support the sealing of an indictment. See United States v.

DiSalvo, 34 F.3d 1204, 1218 (3d Cir. 1994) (an indictment

may be sealed for any legitimate prosecutorial purpose or in

the public interest); Sharpe, 995 F.2d at 52 (same); United

States v. Richard, 943 F.2d 115, 118-19 (1st Cir. 1991)

(same); United States v. Lakin, 875 F.2d 168, 170 (8th Cir.

1989) (same); Srulowitz, 819 F.2d at 40 (same); Ramey, 791

F.2d at 321 (same). Accordingly, we look to the

Government’s request to seal the indictment and evaluate that

request to determine whether any legitimate prosecutorial

purpose or public interest supports the sealing of the

indictment.

12 United States v. Wright No. 01-2569

The district court conducted a hearing on Wright’s motion

to dismiss and found that the indictment was sealed for a

valid purpose and that the length of the sealing was

reasonable: “The government’s reasons with respect to the

confidential informant as set forth today and as set forth in the

government’s response, in this Court’s opinion, justified the

18-month delay between the date of sealing and the date of

unsealing.” Wright argues that because Powell’s testimony

was unnecessarily cumulative to the testimony of Chase and

Kelsey, Powell’s protection was not a legitimate reason for

sealing the indictment. 

We find that the district court did not abuse its discretion in

holding that the indictment was properly sealed. The

protection of Powell and the need to avoid compromising an

ongoing investigation falls within the range of permissible

reasons for sealing an indictment. See, e.g., Bracy, 67 F.3d at

1426 (finding that the need to protect the safety of potential

witnesses justified the sealing of an indictment); DiSalvo, 34

F.3d at 1219 (concluding that the sealing of an indictment to

avoid compromising an unrelated trial was a legitimate

prosecutorial purpose). The Government’s investigations of

the Avengers in Ohio, which involved Powell extensively,

were extremely important and resulted in the indictment and

conviction of nineteen individuals on various drug and

racketeering charges. 

As discussed, an indictment may be sealed for a multitude

of reasons, including the protection of potential witnesses

involved in an unrelated investigation. At the time that the

indictment was sealed, the Government was conducting an

investigation of the Avengers in Ohio and Michigan and

Powell was an informant who was essential to the

investigation. As the Government noted at the hearing on the

motion to dismiss, it decided to dismiss the First Superseding

Indictment in order to protect the identity of Powell while the

investigation continued. The prosecutor argued that this

decision “was a collective decision up to the highest level of

my office, the U.S. Attorney’s office here, the U.S. Attorney’s
No. 01-2569 United States v. Wright 13

office in Cleveland, the Federal Bureau of Investigation at the

highest levels in Detroit and Cleveland. . . .” The

Government concedes that it thought that the investigation of

the Avengers would end in 1997, but that it in fact did not end

until late 1999. When the indictment was issued and sealed

in 1998, the investigations were continuing and the

Government wanted the identity of Powell, an important

witness for the crimes allegedly committed by Wright, to

remain concealed. 

The argument advanced by Wright misunderstands the law

relating to the sealing of an indictment. Wright asks this

Court to examine Powell’s testimony ex post facto and

determine whether the evidence he provided justified the

sealing of the indictment in the first instance. This we decline

to do. It is not our task to evaluate the testimony actually

provided by Powell at Wright’s trial and then ascertain

whether it was significant enough to justify the sealing of the

indictment. We look only to the evidence presented before

the magistrate judge and the district court to determine if the

indictment was sealed for a legally valid purpose. Given this

evidence, we find that the indictment was sealed for the

legitimate prosecutorial purpose of protecting the identity of

Powell, a Government informant who was involved in an

unrelated investigation and provided substantial corroborating

evidence in Wright’s trial regarding the murder of Moore.

Furthermore, courts have held that a defendant must show

“substantial, irreparable and actual prejudice” when a

properly sealed indictment is unsealed beyond the statute of

limitations. Edwards, 777 F.2d at 648; see also United

States v. Mitchell, 769 F.2d 1544, 1547 (11th Cir. 1985).

This Court in Burnett stated, “A sealed indictment that is not

opened until after the expiration of the statute of limitations

will not bar prosecution unless the defendant can show actual

prejudice.” 1992 WL 92669, at *3 (citing Srulowitz, 819 F.2d

at 40). The Defendant has the burden of showing that

prejudice occurred. Muse, 633 F.2d at 1043-44. The

discussion regarding actual prejudice is also relevant in

14 United States v. Wright No. 01-2569

discussing Wright’s Due Process claim and, accordingly, will

be discussed in the following section.

2. Due Process

A successful Due Process claim for pre-indictment delay

requires that a defendant establish: (1) prejudice to his right

to a fair trial, and (2) that the delay was intentionally caused

by the government in order to gain a tactical advantage.

United States v. Brown, 667 F.2d 566, 567 (6th Cir. 1982);

see also Doggett v. United States, 505 U.S. 647, 651-52

(1992); United States v. Marion, 404 U.S. 307, 324-25

(1971). The district court found that Wright failed to

establish prejudice:

Furthermore, the Court is not satisfied that the defendant

suffered substantial prejudice as a result of the delay. . . .

Defendant was aware as early as 1997 that the

government was, quote, accusing him, unquote, with

conduct relating to charges contained in the third

superseding indictment. . . . To the extent that the

defendant’s primary alibi witness is his wife, the Court is

not persuaded that her memory of relevant events has

been adversely affected by the passage of time. The

government alleges that, quote, her sworn [grand jury]

testimony regarding his alleged alibi was preserved in

April of 1997, unquote. 

Wright argues that he was prejudiced by the delay between

the time of his initial arrest in April 1997 and the unsealing of

the indictment in January 2000 because: (1) his memory

regarding his alibi and the memories of other alibi witnesses

had faded; (2) the Government used the delay against him in

cross-examining his alibi witnesses, Scott and Charles

Ferguson, about their alleged loss of memory; (3) certain

Avengers refused to testify as witnesses; (4) records, such as

telephone records, were no longer available; (5) his wife had

a child in the belief that he would not be prosecuted; and

(6) his wife suffered emotional trauma. 
No. 01-2569 United States v. Wright 15

Wright’s first claim that he was prejudiced because of

witnesses’ loss of memory must fail as a matter of law. We

have held that loss of memory is an insufficient reason to

establish prejudice. Payne v. Rees, 738 F.2d 118, 121-22 (6th

Cir. 1984) (citations omitted). Moreover, as the district court

found, Wright can provide no evidence to support his

argument that the witnesses’ memories had faded. His wife,

Brenda, testified both at trial and before the grand jury that

she and Wright “partied” together at their home on the night

of Moore’s murder. It was not until trial that Brenda’s

memory “faded” and she testified that she was “later

informed” that Scott was partying with them on the night of

the murder. Scott and Ferguson, Wright’s other alibi

witnesses, testified in detail regarding the night of Moore’s

murder. Scott testified that she could not recall certain events

only after she was confronted with the contradictory

testimony of Powell regarding Moore’s whereabouts on the

day after Moore’s death. Furthermore, the record does not

support Wright’s assertion that the Government used Scott’s

lack of memory to impeach her. The trial record also lacks

evidence to support Wright’s argument that the Government

attempted to impeach Ferguson by challenging his memory.

As with Scott, the Government properly questioned Ferguson

to ascertain whether he was remembering the night that

Moore was killed or a different night that he spent partying

with Wright.

Wright’s claims that witnesses refused to testify is without

merit. He has presented no evidence concerning who these

witnesses are or how the delay in the indictment corresponds

to their inability to testify. Similarly, Wright has presented

no evidence that various records became unavailable to him

because of the delay. Indeed, he made no requests for any

records during the trial. He only vaguely references

“telephone records” in his brief on appeal, but presents

nothing to support his contention that either those records

were not available or that the allegedly unattainable records

were relevant to his defense. 

16 United States v. Wright No. 01-2569

Wright’s next claims of prejudice are related to the alleged

effect of the delay on his family. First, Wright argues that he

had a child because he believed that he would not be

prosecuted. There is absolutely no case law to support the

argument that the birth of a child can be used to support a

claim of prejudice from a pre-indictment delay. Furthermore,

his wife became pregnant before the First Superseding

Indictment was dismissed in 1997 and therefore, the delay

had no bearing whatsoever on Wright’s family planning

decisions. Next, Wright claims that the delay caused

emotional strain on his wife, who testified that she was taking

antidepressants and other medications at the time of trial.

Again, Wright can cite to no case law that supports his

argument that emotional trauma to a witness establishes

prejudice. Furthermore, Wright cannot support his assertion

that his wife’s emotional trauma was a result of the delay, and

not simply the result of the stress of the trial and a 1999

automobile accident.

Wright is unable to satisfy his “heavy burden to prove that

pre-indictment delay caused actual prejudice.” United States

v. Butz, 982 F.2d 1378, 1380 (9th Cir. 1993). Because Wright

is unable to establish prejudice, we need not consider the

second part of the Due Process inquiry, in which a defendant

must establish that delay was intentionally caused in order to

gain a tactical advantage. Furthermore, Wright’s statute of

limitations claim also must fail because he is unable to show

actual prejudice. Accordingly, the district court did not abuse

its discretion in denying Wright’s motion to dismiss the

indictment based on violations of the statute of limitations

and the Due Process Clause.

B. Prosecutorial Misconduct

Wright argues that the improper reference to a Government

exhibit and statements made by the prosecutor during closing

arguments rose to the level of prosecutorial misconduct.

Where a defendant makes no objection to a prosecutor’s

statements at trial, the standard of review is plain error.
No. 01-2569 United States v. Wright 17

United States v. Collins, 78 F.3d 1021, 1039 (6th Cir. 1996).

“To establish plain error, a defendant must show (1) that an

error occurred in the district court; (2) that the error was plain,

i.e., obvious or clear; (3) that the error affected defendant’s

substantial rights; and (4) that this adverse impact seriously

affected the fairness, integrity or public reputation of the

judicial proceedings.” United States v. Koeberlein, 161 F.3d

946, 949 (6th Cir. 1998) (citing Johnson v. United States, 520

U.S. 461, 466-67 (1997)). A defendant has the burden of

proving that the obvious deviation from a legal rule was so

prejudicial as to affect the outcome of the district court

proceedings. United States v. Olano, 507 U.S. 725, 732-34

(1993). 

1. Admission of a Government exhibit

Wright argues that the Government referenced documents

from the Internal Revenue Service in its closing argument that

were not admitted into evidence. However, at trial, defense

counsel acknowledged to the jury that the documents marked

Exhibit 56, had been admitted into evidence: “I didn’t have

on my exhibit list that I mark the exhibits that come in,

Number 56, and so that’s why I spoke out of turn.

Apparently, it has been put in, and I just screwed up and

missed it.” In his reply brief, Wright acknowledges that “[a]

closer examination of the record, after review of the

Government’s Brief on Appeal, indicates that the exhibit was

‘slipped in’ as Exhibit 56. . . .” Wright’s argument

concerning the exhibits clearly has been conceded and there

was no prosecutorial misconduct in this instance. 

2. The Government’s closing argument

Wright also argues that the Government mischaracterized

evidence and demeaned his counsel in its closing argument.

First, Wright claims that the Government mischaracterized

the testimony of Powell regarding a conversation between

Powell and Wright. Presumably, Powell’s testimony was

offered to show that Wright acted suspiciously by refusing to

18 United States v. Wright No. 01-2569

return to Columbus, the city where Moore was murdered, a

few days after the murder. The Government stated that

“[w]hen Larry Joe Powell suggested [to Wright], ‘We better

go down and find out what happened, that’s your job,’

basically. What does he (the Defendant) say? ‘No, I’m not

going to Columbus.’” Wright argues that this was a

mischaracterization of his alleged conversation with Powell

because Powell testified that the conversation took place as

follows:

Q. What was your discussion with [Wright]?

A. I said something to the effect that maybe we should

go down there. And - 

Q. Go where, to Columbus?

A. Yeah. 

Q. For what purpose?

A. Just for support.

. . . 

A. But [Wright] didn’t want to go down there and I

figured, well, he had his reasons for not wanting to go

down there.

Q. What did he say to you about why he didn’t want to

go down?

A. Just no. He was firm on not wanting to go down there.

Because Wright’s counsel did not object to the

Government’s statements, we review only for plain error.

Given the testimony of Powell, the Government’s statements

regarding that testimony were reasonable and there was no

obvious deviation from a legal rule. Accordingly, we do not

find prosecutorial misconduct based on the Government’s

characterization of Powell’s testimony.

Next, Wright argues that the Government demeaned

defense counsel in his closing arguments by stating to the

jury:

Mr. Amberg, I have a question for you. How can you be

so far off? What you just listened to had nothing to do
No. 01-2569 United States v. Wright 19

with what went on in this case. Every representation he

made virtually was based on the questions he asked, not

from the answers that come from the stand. 

Wright argues that our holding in United States v. Carter, 236

F.3d 777 (6th Cir. 2001), controls, and the conduct of the

prosecutor in this case is similar to that in Carter. In Carter,

the prosecutor misstated the testimony of a key identification

witness and repeatedly insisted that defense counsel was lying

about witnesses’ testimony. 236 F.3d at 784-85. We stated:

“When reviewing challenges to a prosecutor’s remarks at

trial, we examine the prosecutor’s comments within the

context of the trial to determine whether such comments

amounted to prejudicial error.” Id. at 783. “[W]e conclude[d]

that the prosecutor’s misstatement of the evidence in this case

. . . was not only error but also was plain error,” and “we also

conclude[d] that the prosecutor’s claims that defense counsel

was lying were not only error but also were plain error.” Id.

at 785. We ordered a new trial because we found that “the

prosecutor’s actions affected [the Defendant’s] substantial

rights and warrant reversal.” Id. at 785. No such

prosecutorial misconduct occurred during Wright’s trial. 

The defense did not object to the Government’s rebuttal

argument and the statements made by the Government do not

rise to the level of plain error. See United States v. August,

984 F.2d 705, 714 (6th Cir. 1992) (per curiam) (finding that

the defendant did not object and therefore waived any

objection to the remarks on appeal unless the remarks

constituted plain error or a defect affecting substantial rights).

In closing arguments the Government criticized defense

counsel for making representations based on questions posed

to witnesses rather than the answers that they provided. The

Government was attempting to show the jury that the

statements made by defense counsel were not supported by

actual testimony on the record and the Government’s method

of making this point was proper. Indeed, the Government

objected to defense counsel’s characterization of the facts

20 United States v. Wright No. 01-2569

during the defense’s closing statements and the district court

agreed that defense counsel mischaracterized facts:

[Prosecutor]: Oh, objection, Your Honor. This is enough

of this. Counsel, 90 percent of what he’s talking about is

not in evidence in this case.

THE COURT: Mr. Amberg, stay with the evidence that

came in this case and the jury will be instructed to base

their decision –

. . . 

only on the evidence that came into this case and you

will be instructed that lawyer’s comments are not

evidence.

Accordingly, we find that the statements made by the

prosecutor during closing arguments do not constitute plain

error and we do not find prosecutorial misconduct. 

C. Motion to Suppress

Next, Wright argues that the district court erred in denying

his motion to suppress evidence seized pursuant to a search

warrant. Wright argues both that the executing agents

conducted a general search that resulted in the seizure of

items not listed on the warrant and that the warrant was based

on a stale affidavit. 

In reviewing a challenge to a motion to suppress, we review

factual findings for clear error and review legal

determinations de novo. United States v. Williams, 224 F.3d

530, 532 (6th Cir. 2000). 

1. General search

Wright simply argues that he was the victim of a general

warrant because several pieces of evidence were seized from

his residence that were not listed with particularity on the

search warrant. Though Wright does not list the “illegally”

seized evidence, the Government concedes that “several
No. 01-2569 United States v. Wright 21

items” were seized that were not specifically listed on the

warrant cover sheet. The Government argues that the items

were seized because they were clearly contraband or direct

evidence of the crime and subject to seizure under the “plain

view” doctrine. At the suppression hearing, the district court

found that agents “have a right to seize those things, number

one, that are evidence of a crime that are in plain view. And

secondly, in this situation, I believe had a right to seize items

that related to the two crimes that were identified as the basis

for the search warrant.” 

It is well-settled that items to be seized pursuant to a search

warrant must be described with particularity to prevent “the

seizure of one thing under a warrant describing another” in

violation of the Fourth Amendment. Marron v. United States,

275 U.S. 192, 196 (1927). However, in United States v.

Brown, 49 F.3d 1162, 1169 (6th Cir. 1995), we held that

“even evidence ‘not described in a search warrant may be

seized if it is “reasonably related to the offense which formed

the basis for the search warrant.”’” (quoting United States v.

Fortenberry, 860 F.2d 628, 636 (5th Cir. 1988) (quoting

United States v. Munroe, 421 F.2d 644, 646 (5th Cir.), cert.

denied, 400 U.S. 851 (1970))). 

The items seized in this case were sufficiently related to the

two crimes charged to fall within the scope of the search

warrant. Wright does not point to any specific items in his

brief on appeal; however, in his brief in support of his motion

to suppress, Wright claimed that the agents executing the

warrant illegally seized a leather vest in the Avenger’s colors,

a holster, a red address book, a brown address book, a

newspaper article, documents, and a letter.

All the items seized were related to the crimes charged in

the affidavit attached to the search warrant because they

indicated Wright’s involvement in the drug conspiracy and

the murder of Moore. The vest was evidence of Wright’s

involvement with the Avengers motorcycle club; the holster

indicated Wright’s possession of a gun; the address books

22 United States v. Wright No. 01-2569

contained the names and phone numbers of co-conspirators

including Chase and other Avengers; the newspaper article

about the murder of Moore showed that Wright had an

interest in the crime; the documents linked Wright to his alias

“Arthur Anderson”; and the letter from Chase described the

connection of Wright and Chase to the drug conspiracy.

Accordingly, the items were seized pursuant to a valid search

warrant and they related directly to the two crimes charged

and the information provided by the attached affidavit. See

United States v. Dale, 991 F.2d 819, 847 (D.C. Cir. 1993)

(“[T]he common-sense reading of the warrant is that the

government could seize a variety of specifically identified

documents and any other records that related to the [crimes

described in the] affidavit.”). We affirm the decision of the

district court denying Wright’s motion to suppress based on

his allegation that agents conducted a general search. 

2. Staleness of affidavit

Wright also argues that because the search warrant was

based on information that was stale, the magistrate judge did

not have probable cause to issue the warrant. Wright argues

that the information contained in the affidavit used to secure

the warrant was three years old and that there was no probable

cause to believe that Wright’s Las Vegas residence contained

any items related to the crimes charged. A magistrate’s

finding of probable cause for the issuance of a warrant is

accorded “great deference.” United States v. Blair, 214 F.3d

690, 696 (6th Cir. 2000) (citations omitted). “[W]e must

determine whether, in light of the totality of the

circumstances, the magistrate had a ‘substantial basis’ for

concluding that ‘a search would uncover evidence of

wrongdoing.’” Id. (quoting United States v. Sonagere, 30

F.3d 51, 53 (6th Cir. 1994)). “[T]he duty of a reviewing court

is simply to ensure that the magistrate had a substantial basis

for concluding that probable cause existed.” Illinois v. Gates,

462 U.S. 213, 214 (1983).
No. 01-2569 United States v. Wright 23

Moore was murdered in 1993 and the drug conspiracy took

place between 1993 and 1996. In United States v. Henson,

we stated that “[t]he function of a staleness test in the search

warrant context is not to create an arbitrary time limitation

within which discovered facts must be presented to a

magistrate.” 848 F.2d 1374, 1382 (6th Cir. 1988). Instead,

we held that the question of staleness depends on the

“inherent nature of the crime.” Id. In determining whether

the information provided to establish probable cause is stale,

we have held that many questions must be considered

including the nature of the crime and the nature of the items

to be seized. Id. (stating that courts should not determine

staleness “solely by counting the days on a calendar”). We

also have stated that “a court considers the following four

factors in determining whether a probable cause finding is

stale: ‘the defendant’s course of conduct; the nature and

duration of the crime; the nature of the relevant evidence; and

any corroboration of the older and more recent information.’”

United States v. Helton, 314 F.3d 812, 822 (6th Cir. 2003)

(citing United States v. Czuprynski, 46 F.3d 560, 567 (6th Cir.

1995) (en banc)). 

In reviewing the totality of the circumstances, we find that

probable cause existed for the magistrate judge to issue the

warrant. The affidavit provided by Agent Gary Boggs

requested that agents be allowed to search Wright’s residence

for motel records/receipts, a medallion, a passport, and

identification in the name of Arthur Anderson. The affidavit

stated that Boggs and other DEA and FBI agents had been

conducting an investigation of a drug distribution

organization within the Avengers and that through this

investigation, they had learned that Wright was involved in a

cocaine distribution conspiracy and a murder for hire. The

affidavit described the nature of the drug operations with

which Wright was involved. The affidavit stated that Wright

and Moore were members of the Avengers, were involved in

the same drug conspiracy, and that the murder of Moore was

a part of a dispute within the drug conspiracy. The affidavit

also stated that Wright was using the alias of Arthur Anderson

24 United States v. Wright No. 01-2569

at the time of the murder and that Wright was presently using

the alias in Las Vegas, Nevada, where he resided at the time

of the warrant. Regarding the medallion, the affidavit stated

that Moore always wore a medallion with the Avengers’ logo

and that it had not been found at the murder scene. The

affidavit stated that investigators believed that Wright may be

in possession of the medallion as a “trophy” for the murder.

As the district court noted, the information regarding the

medallion may have been stale because it was unlikely that

Wright would have possession of such an item three years

after the crime. However, the other information contained in

the affidavit was sufficient to support a finding that Wright

was involved in a drug conspiracy and the murder of Moore.

Under the Helton factors, the probable cause determination

was not stale because of Wright’s conduct, the continuing

nature of the drug conspiracy, the nature of the evidence

regarding the crimes charged, and the corroboration of older

and more recent information about Wright’s crimes learned

through the investigation of the Avengers. In light of the

“great deference” we give to the magistrate judge’s decision,

there is nothing in the affidavit that leads us to conclude that

the magistrate judge did not have a substantial basis to issue

the warrant. There was extensive evidence provided in the

affidavit for the magistrate judge to conclude that a search of

Wright’s house would lead to the seizure of evidence of

wrongdoing. Accordingly, although several years passed

between the alleged crimes and the issuance of the warrant,

the information contained in the affidavit was relevant and

timely regarding the seizure of certain evidence from

Wright’s residence. We therefore affirm the district court’s

denial of the motion to suppress.

D. Admission of Evidence

1. Hearsay statements

All evidentiary rulings, including hearsay, are reviewed for

abuse of discretion. Trepel v. Roadway Express, Inc., 194
No. 01-2569 United States v. Wright 25

F.3d 708, 716 (6th Cir. 1999). Wright argues that the district

court erred in admitting a hearsay statement made by Leah

Moore, the wife of Moore. The testimony was elicited to

show that Wright learned the whereabouts of Moore by

having his girlfriend call Leah. Leah testified that she had a

conversation with Brenda, then-girlfriend of the Defendant,

on the day of Moore’s murder. She also testified that she

heard Brenda relay the information regarding Moore’s

whereabouts to Wright. Defense counsel objected, but the

district court overruled the objection. Leah’s testimony was

as follows:

A. Brenda called me.

Q. Brenda who?

A. [Wright’s] girlfriend.

Q. Did you recognize her voice?

A. Yes.

Q. Was there anyone else in the area of the phone that

you could hear?

A. [Wright] was in the background.

Q. What did Brenda say?

Mr. Amberg: Hearsay. Objection.

[Prosecutor]: Your Honor, I believe again, the answer is

going to be a question. A question is not hearsay. 

THE COURT: Go ahead. 

THE WITNESS: She asked me where my husband was.

The Government argues that Leah’stestimony about Brenda’s

question was not hearsay because “a question is by definition

not hearsay.”

Under the Federal Rules of Evidence, hearsay is defined as

“a statement, other than one made by the declarant while

testifying at the trial or hearing, offered in evidence to prove

the truth of the matter asserted.” 801(c). While this Court

has not specifically addressed the issue presented by Wright,

a question is typically not hearsay because it does not assert

the truth or falsity of a fact. A question merely seeks answers

26 United States v. Wright No. 01-2569

and usually has no factual content. See Quartararo v.

Hanslmaier, 186 F.3d 91, 98 (2d Cir. 1999) (“‘An inquiry is

not an “assertion,” and accordingly is not and cannot be a

hearsay statement.’United States v. Oguns, 921 F.2d 442, 449

(2d Cir. 1990) (quoting Inc. Pub. Corp. v. Manhattan

Magazine, Inc., 616 F. Supp. 370, 388 (S.D.N.Y.1985), aff’d,

788 F.2d 3 (2d Cir. 1986))”); see also United States v. Lewis,

902 F.2d 1176, 1179 (5th Cir. 1990); United States v. Vest,

842 F.2d 1319, 1330 (1st Cir. 1988).

In this case, Brenda’s question to Leah can be summarized

as “Where is your husband?” In making that statement,

Brenda is not asserting anything. She is only attempting to

extract information from Leah. This inquiry from Brenda is

not being used to prove the truth of the matter asserted and

therefore, as the Government argues, it is not hearsay.

Accordingly, the district court did not abuse its discretion in

allowing the testimony to be presented.

2. Co-conspirators statements

Wright argues that the district court erred in admitting tape

recordings that Kelsey made with Chase and Burke while

Kelsey was cooperating with the Government. Wright argues

that Exhibit 50(a), a recorded conversation between Kelsey

and Chase on August 2, 1996, and Exhibit 52, a recorded

conversation between Kelsey and Burke on September 18,

1996, were erroneously entered into evidence over the

defense’s objections. Wright makes three arguments

regarding the recordings: (1) that Kelsey was no longer a

conspirator when the recordings were made, (2) that Wright

was not a member of the conspiracy, and (3) that the taped

conversations were not in furtherance of the conspiracy, but

rather just “idle chatter.”

Federal Rule of Evidence 801(d)(2)(E) states that a

statement is not hearsay if “The statement is offered against

a party and is . . . (E) a statement by a coconspirator of a party

during the course and in furtherance of the conspiracy.” We
No. 01-2569 United States v. Wright 27

review factual determinations underlying statements of

co-conspirators admitted under Federal Rule of Evidence

801(d)(2)(E) for clear error. United States v. Gessa, 971 F.2d

1257, 1261 (6th Cir. 1992) (en banc).

The district court admitted the recordings, stating:

The Court is satisfied . . . that there is sufficient evidence

to support a conspiracy, and the Court is satisfied that the

statements as described by Mr. Allen in Exhibits 50(a)

and 52, are in furtherance of the conspiracy and related

to the conspiracy and related to Mr. Wright’s

involvement in the conspiracy, if of course, the jury

believes those facts.

We have held that the Government may use the statements of

co-conspirators gained from a cooperating conspirator under

801(d)(2)(E) if the Government shows by a preponderance of

the evidence “(1) that a conspiracy existed, (2) that the

defendant against whom the hearsay is offered was a member

of the conspiracy and, (3) that the hearsay statement was

made in the course and in furtherance of the conspiracy.”

Hamilton, 689 F.2d at 1268 (quoting United States v. Vinson,

606 F.2d 149, 152 (6th Cir. 1979), following United States v.

Enright, 579 F.2d 980 (6th Cir. 1978)).

Under Rule 801(d)(2)(E) and Hamilton, the statements of

co-conspirators gained from a cooperating conspirator may be

used by the Government. Therefore, as a matter of law,

Kelsey’s statements may not be excluded solely because he

was cooperating with the Government at the time that the tape

recordings were made. 

Wright also argues that the Government has not shown that

he was a member of conspiracy or that the statements on the

recordings were made in furtherance of the conspiracy. See

United States v. Hamilton, 689 F.2d 1262 (6th Cir. 1982).

We disagree with Wright’s argument that the Government did

not show by a preponderance of the evidence that he was a

28 United States v. Wright No. 01-2569

member of the conspiracy. There was extensive evidence

presented that Wright, Kelsey, Chase, Ruiz, and Burke were

all involved in the cocaine conspiracy. Kelsey alone testified

to Wright’s extensive involvement in the drug conspiracy,

which included arranging storage facilities for the drugs and

assisting in the stealing of airplanes to pay for shipments of

cocaine. Wright was referenced in the conversations between

Kelsey and Chase and Wright’s role as a conspirator was

shown by the Government by a preponderance of the

evidence. 

We also disagree with Wright’s argument that the

conversations were just “idle chatter.” In their conversations,

Kelsey and Chase discussed how Wright was demanding

either money or cocaine for the theft of a plane. In the

conversation between Kelsey and Burke, they discussed

paying Wright for the theft of an airplane with 100 kilograms

of cocaine from a transaction that they were considering. The

district court found these conversations were in furtherance of

the conspiracy as charged and not just “idle chatter.” This

finding of fact is not clearly erroneous given the evidence of

the conspiracy provided in this case. See Brown, 169 F.3d at

348. Accordingly, we find that the district court did not abuse

its discretion in admitting the taped recordings.

E. Supplemental Arguments

Wright has submitted a pro se supplemental brief to this

Court. In his brief, Wright argues that the Government’s

application of Federal Rule of Criminal Procedure 6(e)(4), the

rule authorizing sealing of the indictment, violates of the

statute of limitations, the Due Process Clause, and the

principles of separation of powers. Wright’s first two

arguments are merely reiterations of the arguments raised by

his attorney in his appellate brief and have already been

addressed. His last argument, that the sealing of the

indictment by the magistrate judge violates separation of

powers, has never been presented previously to the district

court or this Court. 
No. 01-2569 United States v. Wright 29

We do not review arguments that are raised for the first

time on appeal. See Mich. Bell Tel. Co. v. Strand, 305 F.3d

580, 590 (6th Cir. 2002). This Court subscribes to the theory

that “[i]n order to preserve the integrity of the appellate

structure, we should not be considered a ‘second shot’ forum,

a forum where secondary, back-up theories may be minted for

the first time.” Isaak v. Trumbull Sav. & Loan Co., 169 F.3d

390, 396 n.3 (6th Cir. 1999) (quoting Estate of Quirk v.

Comm’r of Internal Revenue, 928 F.2d 751, 758 (6th Cir.

1991)). Accordingly, we decline to review Wright’s

separation of powers argument. 

Wright also submitted a pro se “motion for sanctions

pursuant to Federal Rules of Appellate Procedure 38 and

47(b)” on January 16, 2003. He argues that the Government

made “multiple errors” and “false, misleading statements” in

the proof brief it submitted to this Court. On January 29,

2003, the Government submitted its final brief to this Court

accompanied by a letter explaining that it had corrected the

two mistakes in its citations that Wright had noted in his

January 16 motion. On June 1, 2003, Wright submitted a

letter to this Court that was construed as a motion to issue

sanctions. In that letter, Wright argued that the Government

had made some corrections to citations in its brief, but that

several other factual mistakes existed and that the

Government’s brief is “riddled with errors.” He argues that

the changes made were insufficient to correct all of the errors

and therefore the Government should be sanctioned.

Rule 38 is a rule to protect appellees from frivolous

appeals. FED. R. APP. P. 38. Rule 47(b) states in relevant

part: “No sanction . . . may be imposed for noncompliance

with any requirement not in federal law, federal rules, or the

local circuit.” FED.R. APP. P. 47(b). As a matter of law, both

rules are wholly inapplicable to this case. Accordingly,

Wright’s motions for sanctions are meritless and we deny

both motions.

30 United States v. Wright No. 01-2569

III. CONCLUSION

For the foregoing reasons, weAFFIRM the jury conviction

and sentence entered by the district court.