* Judge J. Garvan Murtha, of the United States District Court for the District of Vermont, sitting by designation. 10-0243-cr (L) USA v. Campbell, Shaw **UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT** 

**SUMMARY ORDER**

**R ULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT**  **. C** **ITATION TO A SUMMARY ORDER FILED ON OR AFTER J** **ANUARY 1,**  **2007, IS PERMITTED AND IS GOVERNED BY**  **F EDERAL**  **R ULE OF**  **A PPELLATE**  **P ROCEDURE**  **32.1 AND THIS COURT**  **’ S**  **L OCAL**  **R ULE**  **32.1.1. W** **HEN CITING A SUMMARY ORDER IN A DOCUMENT FILED WITH THIS COURT ,**  **A PARTY MUST CITE EITHER THE F** **EDERAL A** **PPENDIX OR AN ELECTRONIC DATABASE**  **( WITH THE NOTATION**  **“ SUMMARY ORDER** **”). A**  **PARTY CITING A SUMMARY ORDER MUST SERVE A COPY OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL**  **.** At a stated term of the United States Court of Appeals 1 for the Second Circuit, held at the Daniel Patrick Moynihan 2 United States Courthouse, 500 Pearl Street, in the City of 3 New York, on the 16 thday of May, two thousand twelve. 4 5 PRESENT: JOSEPH M. MCLAUGHLIN , 6 RICHARD C. WESLEY , 7 Circuit Judges , 8 J. GARVAN MURTHA , 9 District Judge

. * 10 11 12 UNITED STATES OF AMERICA, 13 14 Appellee , 15 16 -v.- 10-0243-cr (Lead) 17 10-0246-cr (Con) 18 19 MARLON CAMPBELL, AKA ROOSTER, BRANDON SHAW 20 21 Defendants-Appellants. 22 23 24 252 FOR APPELLANTS: GERALD J. DI CHIARA, Law Offices of 1 Gerald Di Chiara, New York, NY, for 2 Defendant-Appellant Brandon Shaw

. 3 4 JANEANNE MURRAY, Murray Law LLC, New 5 York, NY, for Defendant-Appellant Marlon 6 Campbell. 7 8 FOR APPELLEE: LAURIE A. KORENBAUM, Assistant United 9 States Attorney (Jesse M. Furman, 10 Assistant United States Attorney, on the 11 brief ), forPreet Bharara, United States 12 Attorney for the Southern District of New 13 York, New York, NY. 14 15 Appeal from the United States District Court for the 16 Southern District of New York (McMahon, J. ) 17 18 **UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED** 19

**AND DECREED**that the judgment of the United States District 20 Court for the Southern District of New York be **AFFIRMED**

. 21 Defendants-Appellants Marlon Campbell (“Campbell”) and 22 Brandon Shaw (“Shaw”) appeal from judgments of conviction 23 entered by the United States District Court for the Southern 24 District of New York (McMahon, J. ), following a jury trial 25 in which defendants were found guilty of: (1) conspiracy to 26 possess with the intent to distribute a controlled substance 27 (1,000 kilograms or more of mixtures and substances 28 containing a detectable amount of marijuana) in violation of 29 21 U.S.C. §§ 841(b)(1)(a) and 846; (2) intentional murder of 30 Marcus Bogle while engaged in a drug conspiracy, and aiding 313 and abetting the same, in violation of 21 U.S.C. § 848(e) 1 and 18 U.S.C. § 2; (3) use, possession, and discharge of a 2 firearm in furtherance of Counts One and Two, and aiding and 3 abetting the same, in violation of 18 U.S.C. § 4 924(c)(1)(A)(iii); and (4) use, carrying, and possession of 5 a firearm used to cause Bogle's death, and aiding and 6 abetting the same, in violation of 18 U.S.C. § 924(j). 7 On appeal defendants argue that: (1) the district court 8 erred in admitting other-act evidence pursuant to Federal 9 Rule of Evidence 404(b); (2) the district court’s jury 10 instructions regarding drug quantity were improper; and (3) 11 that the Government’s rebuttal summation constituted 12 prosecutorial misconduct that deprived defendants of the 13 right to a fair trial. Additionally, Shaw raises an 14 ineffective assistance of counsel claim and Campbell argues 15 that he was denied his constitutional right to testify on 16 his own behalf. 17 We have reviewed defendants’ arguments that the court 18 erroneously admitted other-act evidence and failed to give 19 appropriate limiting instructions. We find these claims 20 without merit. The district court appropriately exercised 21 its discretion to admit evidence of defendants’ prior crimes 22 with Tajah, evidence of Campbell’s marijuana possession 234 after Bogle’s murder, and evidence that Shaw received 1 marijuana from Harrison before the Bogle murder pursuant to 2 our circuit’s inclusionary approach to Rule 404(b). See 3 United States v. LaFlam , 369 F.3d 153, 156 (2d Cir. 2004). 4 This evidence was properly admitted to “help explain how the 5 illegal relationship between participants in the crime 6 developed, . . . to explain the mutual trust that existed 7 between coconspirators,” United States v. Rosa , 11 F.3d 315, 8 334 (2d Cir. 1993), or because “it arose out of the same 9 transaction or series of transactions as the charged 10 offense, [was] inextricably intertwined with the evidence 11 regarding the charged offense, or [was] necessary to 12 complete the story of the crime on trial,” United States v. 13 Carboni , 204 F.3d 39, 44 (2d Cir. 2000). Furthermore, the 14 court’s limiting instructions with regard to this evidence 15 were appropriate and sufficient to cure any prejudice that 16 may have otherwise resulted from its admission. See LaFlam , 17 369 F.3d at 157. 18 The court’s instructions regarding drug quantity were 19 not plainly erroneous. When we review jury instructions we 20 must view “the instructions as a whole to see if the entire 21 charge delivered a correct interpretation of the law.” 22 United States v. Bala , 236 F.3d 87, 94-95 (2d Cir. 2000) 235 (internal quotation marks omitted). Here, the court’s 1 instructions appropriately informed the jury that drug 2 quantity was not an element of Count One, see 21 U.S.C. 3 §§ 841(a)(1), 846, and that the jury had to determine drug 4 quantity unanimously and beyond a reasonable doubt for 5 purposes of the special interrogatory, see United States v. 6 Gonzalez , 420 F.3d 111, 125 (2d Cir. 2005). The court also 7 properly instructed the jury that it had to find drug8 quantity scienter unanimously and beyond a reasonable doubt. 9 See United States v. Martinez , 987 F.2d 920, 926 (2d Cir. 10 1993). The jury instructions were clear and correct. 11 Defendants also argue that the prosecutor engaged in 12 egregious misconduct during rebuttal summation by 13 denigrating the defense team, shifting the burden of proof, 14 referring to facts not in evidence, and vouching for the 15 government’s witnesses. None of the alleged conduct to 16 which defendants point was “so severe and significant as to 17 result in the denial of [the defendant’s] right to a fair 18 trial,” United States v. Locascio , 6 F.3d 924, 945 (2d Cir. 19 1993), especially in light of the court’s effective curative 20 instruction and its general instruction that counsel’s 21 arguments were not evidence, United States v. Newton , 369 22 F.3d 659, 681 (2d Cir. 2004). 236 The record also fails to support Shaw’s position that 1 his counsel’s performance fell below an “objective standard 2 of reasonableness” under “prevailing professional norms.” 3 See Strickland v. Washington , 466 U.S. 668, 687-88 (1984). 4 Although we generally resolve ineffective assistance claims 5 on habeas review, Shaw has new counsel on appeal and the 6 record is sufficient for us to decide his ineffectiveness 7 claim now. See United States v. Yauri , 559 F.3d 130, 133 8 (2d Cir. 2009); United States v. Khedr , 343 F.3d 96, 99-100 9 (2d Cir. 2003). 10 Shaw presents four arguments in support of his 11 ineffective assistance claim. He argues that counsel was 12 ineffective because he: (1) failed to object to a 13 question/answer in Donna Deberry’s testimony; (2) failed to 14 read the government’s letter regarding a typographical error 15 in the transcript before relying on the transcript during 16 summation; (3) failed to investigate and present a defense 17 based on Shaw’s proffer statement; and (4) failed to move 18 for severance. None of these alleged errors by Shaw’s 19 counsel satisfy the requirements for an ineffective 20 assistance of counsel claim. 21 Shaw’s first contention, that counsel was ineffective 22 because he failed to object to a set of questions and 237 answers in Donna Deberry’s direct, is wholly unpersuasive. 1 The questioning dealt with whether Bogle knew more than one 2 “Timmy” and both the questions and answers were clearly 3 based on Deberry’s personal knowledge. This line of 4 questioning was not, therefore, objectionable under Federal 5 Rule of Evidence 602 and counsel’s failure to object was not 6 objectively unreasonable. 7 Shaw’s second contention is that counsel provided 8 ineffective assistance of counsel when he relied on a 9 transcript containing a typographical error after receiving, 10 but not reviewing, the government’s letter pointing out and 11 correcting the error. As the district court noted, this 12 mistake was not entirely the fault of Shaw’s counsel. 13 Therefore, we doubt that this alleged error satisfies even 14 the first prong of Strickland . 466 U.S. at 687-88. But, 15 even if counsel’s performance was objectively unreasonable, 16 Shaw cannot satisfy the prejudice prong of Strickland 17 because the court gave an effective curative instruction and 18 allowed Shaw’s counsel to reopen his summation. During the 19 second summation, Shaw’s counsel was able to make much the 20 same argument he had before the error was realized. As a 21 result, Shaw suffered no prejudice from any error counsel 22 made in failing to recognize the typographical error before 23 summation. 248 Shaw also argues that counsel’s performance was 1 deficient and prejudicial because counsel failed to fully 2 investigate Shaw’s proffer statements before deciding not to 3 pursue a defense based on those statements. During a 4 proffer meeting with the Government—during which Shaw was 5 represented by an attorney other than the one representing 6 him at trial or on appeal—Shaw claimed that he shot 7 Campbell’s hand on purpose to prevent Campbell from shooting 8 Bogle. Essentially, Shaw claimed the he shot toward Bogle’s 9 car to save Bogle’s life rather than to kill him. 10 Shaw acknowledges that a strategic decision “made after 11 thorough investigation of law and facts relevant to 12 plausible options [is] virtually unchallengeable.” 13 Strickland , 466 U.S. at 690. But, he claims that his 14 counsel’s decision not to present this alternative defense 15 was the result of “ignorance, inattention or ineptitude” 16 because his counsel failed to call the lawyer who 17 represented Shaw during the proffer meeting and explore her 18 recollections and notes from the meeting. See Cox v. 19 Donnelly , 387 F.3d 193, 201 (2d Cir. 2004). This contention 20 is unpersuasive. 21 The record clearly demonstrates that Shaw’s counsel was 22 aware that Shaw wished to present this “I shot Campbell’s 239 hand to save, not kill Bogle” defense. But Shaw’s counsel 1 made a strategic, “virtually unchallengeable” decision not 2 to present it to avoid allowing the government to present 3 damning statements from Shaw’s proffer session, most of 4 which fully corroborated the government’s case. That the 5 decision was a well-considered strategic one is even more 6 evident from how fanciful this purported defense actually 7 is: Shaw wanted his counsel to argue that as the driverof 8 the car from which people were shooting, Shaw tried to save 9 Bogle’slife by shooting Campbell’s hand, when in fact, he 10 could more easily have done that by driving away. Not 11 presenting such a defense was neither objectively 12 unreasonable nor the result of “ignorance, inattention or 13 ineptitude.” 14 Finally, Shaw contends that his counsel provided 15 ineffective assistance of counsel by failing to move for 16 severance. Defendants have a difficult burden when arguing 17 that joinder would result in an unfair trial, United States 18

v. Casamento , 887 F.2d 1141, 1149-50 (2d Cir. 1989), 19 especially where, as here, “the crime charged involves a 20 common scheme or plan” among the defendants, United States 21 v. Girard , 601 F.2d 69, 72 (2d Cir. 1979). Shaw would not 22 have been able to meet this burden at trial and certainly 2310 fails to meet it after a trial during which the court 1 repeatedly gave appropriate limiting instructions to 2 eliminate any spillover prejudice. See, e.g. , United States 3 v. Williams , 936 F.2d 698, 700-01 (2d Cir. 1991). And 4 because Shaw’s proffer-statement-based defense was never 5 raised at trial, it does not qualify as a basis for 6 severance. Shaw’s counsel’s decision not to seek severance 7 was not, therefore, objectively unreasonable. 8 Indeed, the record as a whole more than supports the 9 district court’s conclusion that Shaw received “competent, 10 able and indisputably effective assistance of counsel” 11 throughout the trial. 12 Finally, we address Campbell’s contention that the 13 court improperly denied him the right to testify on his own 14 behalf. The right to testify is not without limitation and 15 the decision whether to reopen proceedings to allow such 16 testimony once the defense has rested is within the sound 17 discretion of the district court. See Rock v. Arkansas , 483 18 U.S. 44, 55-56 (1987); United States v. Matsushita , 794 F.2d 19 46, 51-52 (2d Cir. 1986). The district court did not abuse 20 that discretion in denying Campbell the opportunity to take 21 the stand when the request to do so occurred during the 22 government’s rebuttal summation. This case is entirely 2311 unlike United States v. Walker , 772 F.2d 1172 (5th Cir. 1 1985) **,** on which Campbell relies. 2

In Walker , the Fifth Circuit held that it was an abuse 3 of discretion for the district court not to reopen 4 proceedings to allow defendant to testify because the 5 defendant’s intention to take the stand was evident 6 throughout the trial. Defense counsel told the jury during 7 opening statements that defendant would testify and 8 defendant indicated, before the defense rested, that he 9 wanted to testify but was not yet emotionally prepared to do 10 so. Subsequently, and beforesummations began, the 11 defendant in Walkerunambiguously requested that the court 12 reopen proceedings so that he could testify. Here, however, 13 unlike in Walker, neither Campbell nor his attorney ever 14 indicated that Campbell intended to or wanted to testify. 15 Indeed, the first time Campbell made any mention of wanting 16 to testify was duringthe government’s rebuttal summation 17 when the court had to dismiss the jury due to a disruptive 18 outburst by Campbell in open court. It is clear from the 19 record that Campbell had, throughout the trial, intended to 20 follow his counsel’s advice that he not take the stand. 21 Based on the timing and method of his supposed request to 22 testify, the court’s denial of any such request was not an 23 abuse of discretion. See Matsushita , 794 F.2d at 51-52. 2412 For the foregoing reasons, the judgment of the district 1 court is hereby **AFFIRMED**

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3 FOR THE COURT: 4 Catherine O’Hagan Wolfe, Clerk 5 6 7