NOT RECOMMENDED F OR F ULL-TEXT PUBLICATION File Na me: 11a0584n.06 No. 08-4552 UNITED STAT ES COURT OF AP P EALS F OR THE S IXTH CIRCUIT

UNI TED STATES OF AMERI CA, Plaintiff-Appellee ,

v. THOMAS GAL AN, Def endant- Appellant. ) ) ) ) ) ) ) ) ) ) ) ON APPEAL FROM THE UNI TED STATES DI STRI CT COU RT FOR THE NORTHERN DI STRI CT OF OH I O

OP INION

Be fore : GUY, COOK, a

nd STRANCH, Circuit J udg es. J AN E B . STRANCH, Circuit Judge. Thomas Galan appea ls his drug conspi ra cy conviction as well as the concur rent life sentenc es without possibili ty of rele ase that he rec eived on two convictions for murde r with a firear m committed in the course of the drug conspirac y . Galan does not challeng e his con viction on the murder char g es. We AF F IRM the drug conspirac y conviction, but we VACATE the life sentenc es imposed on counts 2 and 3 and REMAND the case to the district court for

re- sentenc ing on those counts. I. F ACTS AND P ROCEDURAL HISTORY Fr om the ear ly 1990' s to at least 2003, Galan operated as a mid -l ev el d rug deale r who distributed coca ine and marijuana in Fostoria, Ohio. His source s of supply wer e the Luna brothers and the F lores brothe rs.No. 08-4552

United States v. Galan Pag e 2 Bobbi Br eiteg am, a l o n g-t ime resident of Fostoria, testified at trial that she and her late husband purcha sed g ram quantities of coca ine and marijuana from Galan betwee n 1990 and 1992. Be tween 1992 and 1996, Br eiteg am was prese nt on more than ten occa sions when Galan sold ounce quantit i es o f i l l eg al drug s for profit at two bars in Fostoria. During the transac tions, the L una brothers broug ht the drug s to the bars and supplied th em t o Ga l an, who in turn sold them to purcha sers. Br eiteg am descr ibed the individuals who distributed drug s in Fostoria in 1996 as very close-knit with common source s of supply

. Eric L opez testified he purc hased 10 to 20 pounds of ma rijuana from Galan in Fostoria on five to ten occa sions in 1995 and 1996. During those same y ear s, L opez acc ompanied Galan when h e picked up larg e quantities of drug s from his suppliers in Fostoria, Toledo, and Findlay , Oh i o . Dion Tey testified he purcha sed quarte r- to half-pound quantities of marijuana from Galan betwee n five and ten times in 1996. When Tey acc umulated a debt for drug s Galan had fronted to him, Tey paid off the debt by gi v i n g Ga l an a 9 milli meter Ruge r pistol and two mag azines. By Fa ll 1996, Galan owed a signific ant amount of money to the Flore s brothers for illega l drug s they had fronted
to him. Rather than pay the debt, Galan used the Ruge r pistol he obtained from Tey to murder both of the F lores brothe rs on Dec ember 7, 1996. Whil e the homicides rema ined unsolved, Galan continued to sell drug s. Be tween 2000 and 2003, Eric L opez purcha sed small quantities of coca ine for persona l use from Galan. He also distributed larg e quantities of drug s for the Luna brothers. On one occa sion, Ga l an as k ed to buy drug s from L opez, but L op ez ref used t o sell due to Galan’ s reputa tion for not paying for drugs he purcha sed. Travis Wil liamson, another Fostoria resident who was involved in drug distribution withNo. 08-4552

United States v. Galan Pag e 3 Eddie Fe tro in Fostoria in 1996, testified he purcha sed one or two pounds of marijuana from Galan

on at least two occa sions in 2002 or 2003. Wil liamson also purcha sed marijuana direc tly from the L una brothe rs betwe en 2003 and 2006. The murders of the Flores brothers wer e finally solved in 2005 when the Ruge r pi stol was locate d in a cre ek bed near the murder scene . Ba llist ics tests confirme d the wea pon was used to commit the murders, a

nd other e vidence develope d by investigators linked the wea pon to Galan. I n Marc h 2006, Galan was indicted on a char g e of drug conspirac y in violation of 21 U.S.C. §§ 841(a) (1), ( b)(1) (A) & (b)( 1)(C) & 846. The following month, the g rand jury returne d a thre ecount superse ding indictment which expanded the drug conspirac y alleg ations in count 1 and added
two murder counts for Galan’ s killing of the Flore s brothers in violation of 18 U.S.C. § 924(j)(1) & § 924(c) (1); 18 U.S.C. § 1111, and 21 U.S.C. § 841(a) (1) & § 846. The superse ding indictment also contained a Notice of Special Finding s to support elig ibilit y for the death penalty , and in November 2006, the g overnme nt f

iled a notice of intent to seek the death penalty

. I n J anuar y 2007, the g rand jury returne d a sec ond superse ding indictment amending the Notice of Special F indings. I n November 2007, the trial jury returne d its verdic t of g uilty on all three counts. Following the death penalty phase in Dec ember 2007, the jury returne d its verdic t of life imprisonment without possibili ty of rele ase on counts 2 and 3. The district court subsequently imposed the rec ommended l i fe s en tence s on the t wo m urder counts and 480 months of i mprisonment on the drug consp i ra cy count, all sentenc es to run conc urre ntly . This timely appea l followed.No. 08-4552

United States v. Galan Pag e 4 II. DISCUSS ION A. Lack of an instruction on the statute of limitat ions Galan contends the district court committed reve rsible err or when it did not instruct the jury

conce rning the eff

ect of the five-y ear statute of limit ations applicable to the drug conspirac y char g e. Galan did not object at trial to the lack of an instruction on the statute of limit ations. Acc ording ly ,

we revie w this issue under the plain err or standard. Galan must show: (1) an err or, (2) that was clea r

or o b v i o u s, (3) that aff

ecte d his substantial rig hts, and (4) that aff ecte d the fairne ss, integ rity or public reputa tion of the judicial proce eding s. See United States v. Johnson , 627 F.3d 578, 585 (6th Cir. 2010). He ha s not met this burden. A five-y ear statute of limitations applies to t he cr ime of conspira cy . 18 U.S.C. § 3282(a). “Onc e an i n d i ctm ent i s broug ht, the s tatute of limit ations does not further run as to the charg es i n that indictment.” United States v. Smith , 197 F.3d 225, 227 (6th Cir. 1999). I n this case , the g overnme nt was require d to prove that Galan participa ted in the char g ed drug conspirac y within five y ear s immediately prec eding his indictment, that is, between 2001 and 2006. See United States v. Brown , 332 F.3d 363, 373 (6th Cir. 2003); United States v. Maye s , 512 F.2d 637, 642 (6th Cir. 1975) (“w here a conspirac y contemplates a continuity of purpose and continued perf ormanc e of acts, it is presumed to e x ist unti l there ha s been a n aff irmative showing that it has terminated” ). 1 Rely ing on United States v. Swafford , 512 F.3d 833 (6th Cir. 2008), Ga l an asserts the g overnme nt proved mu lt iple conspirac ies, some of which operated outside the limit ations period and

The presumption of cont i n u i t y can be “extinguished by the aff irmative defe nse of 1 withdrawa l” from the conspirac y , Brown , 332 F.3d at 374, but Galan ex pressly disclaims any sug g estion that he withdrew from the c onspiracy . (Appe llant’s Reply Br . at 2.)No. 08-4552

United States v. Galan Pag e 5 ended with the deaths of the Flore s brothers, and other conspirac ies which opera ted during the limit ations period involving differ ent participa nts. He asks us to find that Swafford compels reve rsal of his c onspiracy conviction beca use, even vie wing the evidenc e in the lig ht most favorable to the jury ver d i ct , the gover

nment failed to prove the exis tence of t he charg ed si ng le conspiracy during the limitations period or tha t the alleg ed co- conspirator s share d a common g oal. See id. at 842. I n Swafford , howeve r, the g overnme nt a ttempted to pr ove a “whe el conspirac y ” or a “huband spoke conspirac y ,” with Swaffor d acting as the hub, connec ted to various customers by spokes. Id. Ruling that the g overnme nt failed to p ro ve the exis tence of a common g oal or enter prise, we f o u nd a “rimless whee l conspirac y ,” with Swaffor d eng ag ing in multipl e co n s p ir a c ie s w it h in d iv id u a l
customers. See id. (citing Kotteakos v. United Sta t es , 3 2 8 U.S

. 750, 755 (1946))

. That situation

cre ated a fata l varia

nce from the i n d i ct m ent, which char g ed a single conspirac y . Id. at 842-44. Notably , howeve r, we stated in a footnote: “ [T] his is not a ‘chain conspiracy ’ where the e x istence of a single conspirac y is proved by the fac t that operators at differ ent l ev el s ar e co n necte d by a common scheme or ente rprise.” Id. at 842 n.3 Her e, the jury hear d evidenc e of a “cha in conspirac y .” At the top of t h e ch ai n , the L una brothers and the Flore s brothers supplied larg e quantities of drug s to a middle-man, Galan, who in
turn resold the drug s to use rs and street- level distributors like Fe tro, L opez, a nd Wil liamson at the bottom of the chain. Eric L opez testified he participa ted in the char g ed drug co n s p i ra cy with the L una brothers and Galan in the mid-1990' s befor e L opez went to prison. Upon L opez’s rele ase from prison in 1999, the Luna brothe rs entice d L opez to rejoin t he conspiracy to sell larg e quantiti es of drug s so he could repa

y a drug debt that he owed to t h em . I n September 2003, Galan was stillNo. 08-4552

United States v. Galan Pag e 6 involved in the same conspirac y with L opez and the L una brothe rs, selling persona l use quantities of coca ine to L opez and also aski n g to buy drug s from L opez, who had started buy ing pounds of marijuana and kilog rams of c ocaine direc tly from the L

una brothe rs. Fur ther, Travis Wil liamson testified he was involved in the char g ed conspirac y in 1996 when he distributed drug s with Eddie Fe tro. Other evidenc e confirme d that Fe tro obtained his drug s from Galan a nd the Luna brothe rs, further up the chain. I n 2002 or 2003, Will iamson continued to buy pounds of marijuana from Galan, and betwee n 2003 and 2006, he purcha sed marijuana direc tly from the L unas. All of this e vidence supports the jury ’s decision to c onvict Galan of the cha rg ed sing le conspirac y

alleg ed in the indictment. Other authorities cited by Galan, such as Unit ed S t a t es v. Graham , 484 F.3d 413 (6th Cir. 2007), United States v. Gibson , 409 F.3d 325 (6th Cir. 2005), United States v. Smith , 320 F.3d 647 (6th Cir. 2003), and Six th Circui t P at t er n C ri minal J ury I nstruction § 3.04 (2007), are inapposite beca use they conce rn p roof of an overt act to show a conspirac y char g ed under 18 U.S.C. § 371. Her e, the g overnme nt char g ed drug conspirac y under § 846, which does not include the require ment to prove an overt ac t

. S ee United States v. Shabani , 513 U.S. 10, 14 (1994); United States v. Graham , 622 F.3d 445, 450 (6th Cir. 2010). But even if an overt act wer e require d, the g overnme nt proved ove rt ac ts of the cha rg ed conspira cy

occur ring in 2002 and 2003. Neither Galan’ s substantial rig hts nor the fairne ss, integ rity or public reputa tion of the judicial proce eding s wer e aff ecte d by the lack of a jury instruction on the statute of limit ations. See Johnson , 627 F.3d a t 585. There fore , we a ffirm the dr ug conspirac y

conviction.No. 08-4552

United States v. Galan Pag e 7 B. Sentencing error Galan n ext contends the district court commit ted reversible error during the penalty phase

on the murder counts when the court instructed the jurors to choose betwee n the death penalty or life imprisonment without possibili ty of rele ase. I nstead, he argues, the court should have instructed the jury to c onsider three sentenc ing options: the death penalty , life imprisonment without possibilit y of rele ase, or imprisonment for any term of y ear s. Galan did not object below to the district court’s instruction, but the g overnme nt conce des plain err or occur red and we ag ree . See Johnson , 627 F.3d at 585. Counts 2 and 3 of the second superse ding indictment char g ed Galan wi t h co m m itting the murders of the F lores brothe rs with a fire arm duringthe cour se of a drug traff

icking conspirac y

in violation of 18 U.S.C. § 924(j)(1). At the time of the offe nse, § 924(j)( 1) provided: (j) A person who, in the course of a violation of subsection (c) [usi ng or car rying a firea rm d u ri n g and in rela tion to a drug traff icking crime], cause s the death of a person throug h the use of a firea rm, shall

S (1) if the killing is a murder (as define d in section 1111), be punished by death or by imprisonment for any

term of y ear s or for life [.] T itle 18 U.S.C. § 1111(a) define d murder as “the unlawful killing of a human being with malice afor ethoug ht. Every murder perpe trated by

. . . any other kind of willful, deliberate, malicious, and preme ditated ki lling .

. . is murder in the first deg ree .” Section 1111(b) provided that “[w]hoever is guilty of murder

in the first deg ree shall be punished by death or by imprisonment for life[.] ” We ha ve held that § 924(j) incorporates only the definition of murder in § 1111(a) , and not the penalty prov i s i o n from § 1111(b), thereby preve nting “a first-deg ree murder conviction underNo. 08-4552

United States v. Galan Pag e 8 § 924(j) from becoming a de fac to mandatory minimum life sentenc e.” United States v. Ostrander , 411 F.3d 684, 687 (6th Cir. 2005). There fore , in consi dering the possible penalties under § 924(j)(1) , th e j u ry h as “the option to permit the judge to sentenc e [t he defe ndant] to a term of y ear s[.] ” Id. I n light of Ostrander, the error i s plain. We g rant the parties’ reque st to return the case to the district court for

re- sentenc ing on c ounts 2 and 3.

III. CONCLUSION Acc ording ly , for the rea sons stated, we AF F IRM Galan’ s drug conspirac y conviction. We VACATE the concur

rent sentenc es of life imprisonment without possibili ty of rele ase imposed on counts 2 and 3 a

nd REMAND to the district court solely for r e-se ntencing on counts 2 and 3.