1

The Honorable John A. Jarvey, United States District Judge for the Southern

District of Iowa.

United States Court of Appeals

FOR THE EIGHTH CIRCUIT

___________

No. 09-3644

___________

United States of America, *

*

Appellee, *

* Appeal from the United States

v. * District Court for the 

* Southern District of Iowa.

Myron Dejuan Orr, *

*

Appellant. *

___________

Submitted: September 23, 2010

Filed: March 3, 2011

___________

Before BYE, BEAM, and SMITH, Circuit Judges.

___________

SMITH, Circuit Judge.

On August 13, 2008, following a two-day trial, a jury found Defendantappellant Myron DeJuan Orr guilty on all seven counts of a superceding indictment

charging him with various crack cocaine and firearm offenses. Six days later, Orr's

counsel moved for a new trial based on his own purportedly ineffective assistance.

Following an evidentiary hearing on the matter, the district court1

 denied the motion,

and subsequently sentenced Orr to life imprisonment. On appeal, Orr argues that the

district court abused its discretion in (1) denying his motion for new trial, and (2)
2

At trial, the government presented evidence that it is the common practice of

crack dealers to "tear the corners out of bags, fill them with crack, and tie them off."

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rendering certain evidentiary rulings during the course of trial. Additionally, prior to

oral arguments in this matter, Orr filed a supplemental pro se brief urging this court

to retroactively apply the newly enacted Fair Sentencing Act of 2010, which reduces

the existing sentencing disparity between crack-cocaine and powder-cocaine offenses.

For the reasons that follow, we affirm.

I. Background

In 2006, law enforcement officials suspected that Orr dealt crack cocaine

extensively in Burlington, Iowa. Thus, local and federal authorities commenced an

ongoing investigation into Orr and his activities. The county sheriff's office in Des

Moines, Iowa, while investigating a residential burglary in Mediapolis, Iowa,

interviewed Nicholas Nelson. Nelson confessed to the burglary and stated that he

bartered one of the stolen items—an X-Box video game system—to Orr in exchange

for crack and cash. According to Nelson, this trade occurred at Orr's residence, located

at 1305 Washington Street in Burlington. 

Based on this information, authorities obtained and executed a search warrant

to look for the stolen property at Orr's residence. Orr was not present at the time.

Officers found the X-Box connected to a television in the kitchen and also discovered

(1) numerous plastic bags in the master-bedroom closet and elsewhere bearing torn

corners2

 and containing white powder residue, (2) the packaging for a scale commonly

used by drug dealers to weigh narcotics, (3) Orr's state-issued identification listing

1305 Washington as his place of residence, (4) 2005 income-tax returns showing the

same, and (5) a shotgun under the master-bedroom bed. Authorities later determined

the shotgun to be stolen.
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Despite the seizure of stolen property and evidence of drug distribution, the

search did not immediately result in Orr's arrest. The government maintains that Orr

continued dealing crack out of his home at 1305 Washington Street. Throughout

January 2007, a Burlington Police Department ("Burlington PD") Task Force staged

several controlled buys of crack cocaine from Orr, utilizing one of Orr's prior

customers, turned confidential informant, Darwin Dickerson. 

Based on these buys and a search of Orr's curbside garbage, yielding more

plastic bags with torn corners, Burlington PD executed a second search warrant at

1305 Washington Street on June 1, 2007. This time, authorities found seven bags of

crack cocaine; a stun gun; digital scales; multiple cellular phones; several large-screen

plasma televisions; stereo equipment; $693 cash; mail addressed to both Orr and his

girlfriend, Julie Pfaltzgraff; and a newly issued Iowa identification card listing 1305

Washington as Orr's home address. Orr, Pfaltzgraff, and Pfaltzgraff's three children

were present when the authorities searched the home.

 Three days later, on June 4, 2007, Burlington PD arrested Orr pursuant to a

warrant. As Burlington PD Deputy Brad Siegfried handcuffed Orr and escorted him

to the waiting patrol car, Orr insisted that Deputy Siegfried did not actually possess

an arrest warrant for Orr, to which Deputy Siegfried replied that he had valid arrest

warrants for both Orr and Pfaltzgraff. Orr responded by confessing ownership to

"everything in the house" and urging the officers not to involve Pfaltzgraff in their

investigation. Orr's incriminating statement to Deputy Siegfried occurred before Orr

received Miranda warnings. Shortly after his exchange with Deputy Siegfried, Orr

recanted his confession and claimed that police planted any evidence found at the

house. 

Released on bond, Orr resumed selling crack out of the Washington Street

residence in November 2007, and police again arranged several controlled buys from

Orr, this time enlisting the help of Cody Bailey, another of Orr's prior patrons, turned
3

According to Cohn, "[s]ome time between commencement of trial and

termination of trial, counsel had a stroke and Atrial Fibrillation, which was causing

trans[ient] ischemic attacks." In his motion, Cohn also stated that Orr had apprised

him that he (Cohn) repeatedly fell asleep during the trial. Finally, Cohn claimed that

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informant. Additionally, Keri Christofferson told law enforcement officers that she

made crack purchases from Orr at 1305 Washington Street and facilitated purchases

there on others' behalf.

On February 12, 2008, a grand jury returned a six-count indictment charging

Orr with crack-cocaine related offenses. The district court initially appointed Murray

Bell as Orr's counsel, but, on March 12, 2008, Orr's mother retained Frederick Cohn

as counsel for Orr. Between June 6 and June 9, 2008, Cohn filed seven pretrial

motions, and on June 20 he filed ten more. Notably, among these motions was Cohn's

"Motion to Exclude Evidence Concerning Incident of June 4, 2007," filed on June 20,

2008. This motion failed to specify (1) the evidence sought to be excluded and (2) the

legal basis for such exclusion. Later, on the first day of trial and just prior to voir dire,

Cohn clarified that this motion sought the exclusion of the custodial confession Orr

made to Deputy Siegfried on the day of his arrest, prior to being Mirandized. The

district court denied the motion. Cohn renewed his exception to this evidence at trial.

Specifically, Cohn contemporaneously objected to the introduction of this confession

through Deputy Siegfried's testimony, prompting the district court to interrupt Deputy

Siegfried's direct examination and permit Cohn to voir dire Deputy Siegfried outside

the jury's presence about the details of Orr's confession. Ultimately, the district court

overruled Cohn's objection and permitted Deputy Siegfried to testify about Orr's

confession.

On August 13, 2008, after hearing substantially the same evidence recited

above, the jury returned a verdict of guilty on all counts. Six days later, Cohn filed a

motion for new trial on Orr's behalf, citing his own performance as counsel as the

basis for relief. Cohn mentioned several acute ailments3

 for which he had received
while driving home to Chicago following the trial, highway patrolmen stopped him

twice, ostensibly because of his erratic driving, on suspicions that he was driving

while intoxicated.

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treatment since the trial's conclusion and that may have gone undiagnosed during the

trial. Cohn averred that, insofar as they afflicted him during trial, these ailments may

have impaired his capacity to adequately represent Orr. Cohn also moved separately

for the district court to appoint new counsel "based on the facts stated in the Motion

for New Trial," asserting that "defendant should be represented by counsel who can

represent defendant on the issue of whether defendant had adequate effective

assistance of counsel."

On February 12, 2009, the district court granted Cohn's motion to appoint new

counsel, relieved Cohn as counsel of record, and, on February 17, 2009, reappointed

Orr's original appointed counsel Murray Bell. On September 23, 2009, after receiving

Orr's amended motion for new trial and responses thereto, the district court held an

evidentiary hearing on the ineffective-assistance-of-counsel claims that Orr raised in

his motion for new trial. In relevant part, Orr argued in his amended motion that he

was entitled to a new trial because Cohn rendered ineffective assistance of counsel by:

(1) failing to object to certain hearsay testimony; (2) failing to adequately cross

examine Christofferson about (a) her cooperation agreement with the government, and

(b) her prior inconsistent statements to police concerning the amount of crack she and

others purchased from Orr; (3) failing to secure suppression of Orr's custodial, unMirandized confession to Deputy Siegfried; (4) improperly dissuading Orr from

testifying on his own behalf; and (5) failing to call Pfaltzgraff as a defense witness.

On November 4, 2009, after briefing and hearing, the district court denied Orr's

motion for new trial in its entirety. Specifically, the district court concluded the

following in a written memorandum opinion: (1) Cohn did fail to assert viable hearsay

objections, but his failure to do so easily could be explained as excusable trial

strategy, and moreover, Orr failed to demonstrate prejudice from Cohn's failure to
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object; (2) contrary to Orr's contention, Cohn did rigorously cross examine

Christofferson, most notably on her history of mental health problems and her likely

hope of receiving a reduced sentence in exchange for her testimony; (3) although

Cohn did not move pretrial to suppress Orr's statement as is customary, Orr suffered

no prejudice as a result because: (a) Cohn did timely and adequately object to the

statement's admission at trial; and (b) in any event, evidence of Orr's confession was

properly admitted because it was not elicited by Deputy Siegfried in violation of

Miranda; (4) Cohn did not ineffectively assist Orr by dissuading him from testifying

because Orr admitted that Cohn did so for the stated reason that the government would

discredit Orr's testimony, presumably by impeaching Orr with his three prior drug

convictions; (5) citing the rule that a lawyer's election not to call a witness is a

virtually unassailable decision committed to a lawyer's trial strategy, the Court found

no error—and thus no prejudice to Orr—in Cohn's decision not to call Pfaltzgraff as

a witness.

Subsequently, on November 12, 2009, the district court sentenced Orr to life

imprisonment for Count 1 (conspiracy to distribute fifty grams or more of crack

cocaine), as well as 360 months' imprisonment for Counts 2–6 (various possession and

distribution offenses), and 120 months' imprisonment for Count 7 (felon in possession

of a firearm), all to run concurrently. Orr now appeals the district court's denial of his

motion for new trial and two of the district court's evidentiary rulings.

II. Discussion

A. Ineffective Assistance of Counsel

On appeal, Orr maintains that Cohn rendered ineffective assistance of counsel

at trial in violation of the Sixth Amendment, and thus that the district court erred in

denying Orr’s motion for new trial. Specifically, Orr alleges that Cohn made a number

of critical missteps during trial.
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"'Generally, ineffective assistance of counsel claims are better left for

post-conviction proceedings'" like habeas corpus petitions brought under 28 U.S.C.

§ 2255. United States v. Rice, 449 F.3d 887, 897 (8th Cir. 2006) (quoting United

States v. Cook, 356 F.3d 913, 917 (8th Cir. 2004)). Still, we routinely review

ineffective-assistance claims on direct appeal where, as here, "the record is fully

developed because the district court held an evidentiary hearing at which it allowed

[the defendant] to present evidence regarding the alleged ineffective assistance of

counsel." Id. Moreover, we have found additional justification for reviewing

ineffective-assistance claims on direct appeal when the parties concur that the record

is fully developed and thus ripe for review. See id. ("Additionally, both parties

represented at oral argument that the record is fully developed."). Both Orr and the

government represent that the record is sufficiently developed to enable review. We

agree, and accordingly review the district court's disposition for abuse of discretion.

See United States v. Villalpando, 259 F.3d 934, 938 (8th Cir. 2001) ("On the merits,

we review the district court's ruling on a motion for new trial based on a claim of

ineffective assistance of counsel for abuse of discretion.") 

For Orr to prevail on his ineffective-assistance claims, he must satisfy the

two-part test laid out by the Supreme Court in Strickland v. Washington, 466 U.S. 668

(1984). Under Strickland, Orr first must show that, with respect to each instance of

alleged ineffectiveness by counsel that counsel made an "error[ ] so serious that [he]

was not functioning as the counsel guaranteed [Orr] by the Sixth Amendment[.]" Rice,

449 F.3d at 897 (quoting Strickland, 466 U.S. at 687). In making this initial

consideration, there is a "'strong presumption that counsel’s conduct falls within the

wide range of reasonable professional assistance.'" Id. (quoting Strickland, 466 U.S.

at 689). Moreover, "'[s]trategic choices made after thorough investigation of law and

facts relevant to plausible options are virtually unchallengeable.'" Id. (quoting

Strickland, 466 U.S. at 690).
-8-

Second, even assuming that Orr satisfies Strickland's first prong by showing

that counsel made such serious errors, these errors will not warrant reversal unless Orr

"'show[s] that the deficient performance prejudiced the defense.'" Steinkuehler v.

Meschner, 176 F.3d 441, 445 (8th Cir. 1999) (quoting Strickland, 466 U.S. at 687)).

"Prejudice is established if there is 'a reasonable probability that,' but for counsel's

errors, 'the result would have been different.'" Id. (quoting Strickland, 466 U.S. at

694). Thus, "[b]oth deficient performance and resulting prejudice must be established

to satisfy the Strickland standard." Id. (citing Strickland, 466 U.S. at 697). Under

Strickland's test, Orr fails to show that the district court abused its discretion in

denying his motion for new trial due to ineffectiveness of trial counsel.

1. Failure To Object to Certain Hearsay Testimony

Orr first alleges that Cohn rendered ineffective assistance by failing to object

to certain hearsay testimony of government witness, Mark Anderson concerning Orr's

actual place of residence. At trial, Orr hotly contested where he resided during the

relevant time periods. Specifically, as Orr explains in his brief, "[w]here Mr. Orr

resided was very important because of the fact that the contraband that supports many

of the counts in the Indictment were found at the residence at 130[5] Washington

Street where Mr. Orr was claiming he did not live." Orr's defense suggested that for

most of the relevant time period, including on September 14, 2006, when Burlington

PD executed the first search warrant at 1305 Washington Street, he resided in one of

Anderson's apartment units located at 803 Summer Avenue. Orr reasserted this

position at the evidentiary hearing held by the district court on the new trial motion.

Contrary to Orr's position, Anderson testified at trial that he "d[idn't] think that

[Orr] ever moved in" to 803 Summer and only "stayed there some." In the portion of

testimony to which Orr now takes exception as inadmissible hearsay, Anderson

explained that he formed his suspicion that Orr did not physically reside in the

apartment "[j]ust from talking to the other tenants." Orr contends that counsel's failure
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to object to this testimony constituted an error fatal to his defense that 1305

Washington Street was not his actual residence.

Anderson's statement is hearsay as it clearly is an out-of-court statement offered

for the truth of the matter asserted. See Fed. R. Evid. 801(c). Nevertheless, Cohn's

failure to object to one question—"Why do you think that [Orr] never resided at the

apartment that he rented?"—that, on its face, does not elicit a hearsay answer, is not

a performance deficiency "so serious that [he] was not functioning as the counsel

guaranteed the defendant by the Sixth Amendment." Strickland, 466 U.S. at 687.

Moreover, even assuming arguendo that counsel's error met the first prong of

Strickland, it was not prejudicial under Strickland's second prong. Evidence tending

to show that Orr did in fact reside with Pfaltzgraff at 1305 Washington Street was

substantial. During their execution of the first search warrant, authorities discovered,

among other things, baggies of the type commonly used in drug distribution bearing

Orr's fingerprints, Orr's state-issued identification card listing 1305 Washington as his

home address, and 2005 income-tax returns listing the same. Added to this, Orr's

probation records at the time likewise listed 1305 Washington as his home address,

and myriad witnesses testified to arranging or consummating crack purchases from

Orr at the Washington Street home. 

Accordingly, the district court did not abuse its discretion in finding no

"'reasonable probability that, but for'" Cohn's failure to object to Anderson's hearsay

testimony, "'the result of the proceeding would have been different . . . .'" Rice, 449

F.3d at 897 (quoting Strickland, 466 U.S. at 694).

2. Failure To Adequately Cross Examine Christofferson

In his next alleged instance of ineffectiveness, Orr claims that trial counsel

failed to sufficiently cross examine Christofferson to satisfy his constitutional right

to confront witnesses testifying against him. Specifically, Orr maintains that counsel

rendered ineffective assistance when he (1) failed to impeach Christofferson with her
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cooperation agreement with the government and (2) failed to impeach her with her

prior inconsistent statements regarding the number of drug transactions between Orr

and others that she arranged.

Concerning Orr's first contention, Orr points out that, prior to testifying,

Christofferson faced two charges that each carried a mandatory minimum sentence of

five years absent Christofferson's agreement to cooperate with the government. Orr

maintains that Christofferson's expected benefits from her performance under the

cooperation agreement motivated her to embellish or fabricate her inculpatory

testimony. Orr argues that Cohn should have highlighted Christofferson's potential

ulterior motive. 

Additionally, Orr notes that in a proffer interview Christofferson gave on

February 11, 2008, to federal and local law enforcement, she stated that she had

purchased crack cocaine at the Washington Street house from Orr "three or four times

for [sic] one-half ounce quantities." Christofferson did not expound on this testimony

and made no mention of arranging drug transactions between Orr and others.

Nevertheless, less than a month later, on March 8, 2008, Christofferson testified at

Orr's grand jury hearing that she obtained crack cocaine from Orr for herself and

others, "probably 75 to 100 times." Christofferson substantially reiterated her grand

jury testimony at Orr's trial. Again, Orr maintains that counsel rendered ineffective

assistance by failing to impeach Christofferson on this prior inconsistency.

The Supreme Court has recognized that "strategic choices made after a

thorough investigation of law and facts relevant to plausible options are virtually

unchallengeable; and strategic choices made after a less than complete investigation

are reasonable precisely to the extent that reasonable professional judgments support

the limitations on investigation." Strickland, 466 U.S. at 690–91. Accordingly, we

"generally entrust cross-examination techniques, like other matters of trial strategy,

to the professional discretion of counsel." Villalpondo, 259 F.3d at 939. Still, we heed
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the Supreme Court's guidance that, "'[a]bsent competent counsel, ready and able to

subject the prosecution's case to the 'crucible of meaningful adversarial testing,' there

can be no guarantee that the adversarial system will function properly to produce just

and reliable results.'" Driscoll v. Delo, 71 F.3d 701, 706 (8th Cir. 1995) (quoting

Lockhart v. Fretwell, 506 U.S. 364, 377 (1993) (Stevens, J., dissenting)). In that vein,

"[t]he Eighth Circuit has found constitutionally deficient performance of trial counsel

based on ineffective cross-examination where counsel allowed inadmissible

devastating evidence before the jury or when counsel failed to cross-examine a

witness who made grossly inconsistent prior statements." Whitfield v. Bowersox, 324

F.3d 1009, 1017 (8th Cir. 2003), vacated in part on other grounds by, 343 F.3d 950,

950 (8th Cir. 2003) (citing Hadley v. Groose, 97 F.3d 1131, 1135–36 (8th Cir. 1996);

Driscoll, 71 F.3d at 709–11)). Specifically, "[a] failure to impeach constitutes

ineffective assistance when there is a reasonable probability that, absent counsel's

failure, the jury would have had reasonable doubt of the petitioner's guilt." Id. at 1018

(citing Driscoll, 71 F.3d at 711).

When probed at the evidentiary hearing about his alleged failure to impeach

Christofferson with her cooperation agreement and prior inconsistent statements,

Cohn could not even recall his cross-examination of Christofferson, let alone any

strategic reasons for his actions during it. Still, Cohn admitted that, if faced with the

same scenario in the future—i.e., an adversarial witness testifying under a cooperation

agreement and having previously made statements grossly inconsistent with those

offered at trial—he undoubtedly would have impeached the witness on both aspects

of her testimony. 

Regarding the cooperation agreement, the government correctly noted that it

questioned Christofferson at trial about her cooperation agreement and introduced the

agreement into evidence. Moreover, although Orr contends in his brief that "Cohn

failed to ask . . . Christofferson even one question about the agreement," the trial

transcript reflects otherwise. Indeed, the record reveals that Cohn elicited
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Christofferson's admission on cross examination that she was testifying pursuant to

a cooperation agreement and in hopes of receiving a reduced sentence. Accordingly,

the record clearly belies Orr's argument that Cohn erred by failing to impeach

Christofferson with evidence of her cooperation agreement with the government. 

Additionally, concerning Cohn's failure to impeach Christofferson with the

inconsistent statements that she made in her proffer interview, the government also

notes that Cohn vigorously cross examined Christofferson on her history of mental

health problems. Still, given Cohn's failure to impeach Christofferson's veracity on

this critical aspect of her testimony, coupled with his inability to articulate a strategic

reason for such failure, Cohn's representation likely fell below the threshold of

reasonable professional competence required by Strickland. See Steinkuehler, 176

F.3d at 445 (finding ineffective assistance for defense counsel's failure to impeach

"especially critical" testimony, and rejecting the state's argument that such failure was

attributable to strategy, citing that "trial counsel could not recall why he did not pursue

this area, and only speculated as to what he may have been thinking"). Cohn may have

eroded Christofferson's credibility in the jury's eyes by impeaching Christofferson

with her grossly-inconsistent prior statements. 

Nonetheless, Orr again fails to show the requisite prejudice: namely, that there

is a reasonable probability that, absent counsel's failure to impeach, the jury would

have had reasonable doubt of Orr's guilt. Whitfield, 324 F.3d at 1018 (citing Driscoll,

71 F.3d at 711). Indeed, "'it is very difficult to show the trial outcome would have

been different had specific questions been asked on cross examination,' particularly

where other trial testimony repeatedly corroborated the [challenged] testimony."

United States v. Watkins, 486 F.3d 458, 466 (8th Cir. 2007), vacated on other

grounds, 552 U.S. 1091 (2008). Here, the evidence corroborating Pfaltzgraff's

testimony concerning Orr's extensive narcotics distribution was overwhelming. In

addition to Christofferson’s unimpeached testimony, the jury heard testimony from

law enforcement regarding its many controlled buys from Orr, as well as the
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testimony of Bailey and Dickerson, the two confidential informants who participated

in these controlled buys and also purchased crack from Orr prior to aiding law

enforcement. This testimony, coupled with the drugs and drug paraphernalia seized

at the Washington Street house and linked to Orr, rendered Christofferson's testimony

merely cumulative. 

Orr attempts to square his case with Driscoll, where we found a defense

counsel's failure to adequately cross examine or impeach a witness to be

constitutionally ineffective. Nevertheless, Driscoll is inapposite to Orr's case. In

Driscoll—a case involving the murder of a prison guard during a jailhouse riot—we

found ineffective assistance where defense counsel failed to impeach the state's key

eyewitness, the defendant's cellmate, with his prior inconsistent statements. 71 F.3d

at 710. The cellmate initially told investigators that the defendant, upon returning to

the cell after the riot, merely commented that the guard "had been stuck," but the

cellmate later testified at trial that the defendant had exclaimed, "Did I take him out,

JoJo, or did I take him out." 71 F.3d at 710. Faced with these facts, as well as little

other evidence directly implicating the defendant, we found "no objectively

reasonable basis on which competent defense counsel could justify a decision not to

impeach a state's eyewitness whose testimony, as the district court points out, took on

such remarkable detail and clarity over time." Id. Driscoll is easily distinguishable

from Orr's case because of the extensive corroborating evidence from other sources

establishing Orr's drug distribution.

Thus, there is not a reasonable probability that Cohn's impeachment of

Christofferson would have manufactured reasonable doubt in the jurors' minds, and

the district court did not abuse its discretion in failing to find ineffective assistance.
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3. Failure To Secure Suppression of 

Orr's Un-Mirandized, Custodial Confession

Next, Orr contends that Cohn rendered ineffective assistance of counsel when

he failed to secure suppression of Orr's un-Mirandized, custodial confession to Deputy

Siegfried during his arrest on June 4, 2007. Cohn filed his "Motion to Exclude

Evidence Concerning Incident of June 4, 2007," but did not state what evidence he

sought to exclude or to which June 4 incident the motion referred. At the pretrial

conference, the district court denied the motion. Orr concedes that once Deputy

Siegfried began testifying about Orr's statement, Cohn timely objected to the

introduction of any evidence of Orr's confession, and further secured an opportunity

to voir dire Deputy Siegfried, on the record and outside the jury's presence, about all

of the events surrounding Orr's confession. After his voir dire of Deputy Seigfried,

Cohn renewed his motion to exclude any evidence of Orr's confession on the ground

that it was elicited in violation of Miranda v. Arizona, 384 U.S. 436 (1966), reasoning

that Deputy Siegfried's comment about also possessing an arrest warrant for

Pfaltzgraff amounted to the functional equivalent of an interrogation pursuant to

Rhode Island v. Innis, 446 U.S. 291 (1980). The district court denied Cohn's renewed

motion. 

As the district court correctly observed in its denial of Orr's motion for new

trial, "[b]y objecting appropriately, [Cohn] performed 'within the wide range of

reasonable professional assistance.'" Likewise, the district court was correct in its

conclusion that, even if counsel was ineffective in failing to file a pretrial motion to

suppress, Orr's custodial confession was not excludable because Deputy Siegfried's

statements could not reasonably be perceived by Orr "to elicit an incriminating

response." See id. at 301. As the Supreme Court noted in Innis, "the definition of

interrogation can extend only to words or actions on the part of police officers that

they should have known were reasonably likely to elicit an incriminating response."

Id. at 302. Moreover, as this court has stated, a "'law enforcement officer's mere

description of the evidence and of potential charges against a suspect, in direct
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response to the suspect's importuning, hardly can be classified as interrogatory.'"

United States v. Wipf, 397 F.3d 677, 685 (8th Cir. 2005) (quoting United States v.

Conley, 156 F.3d 78, 83 (1st Cir. 1998)). The evidence reflects that, in response to

Orr's challenge that no valid warrant for his arrest existed, Deputy Siegfried merely

assured Orr that he (Deputy Siegfried) possessed a warrant for Orr and Pfaltzgraff.

This is precisely the type of benign, informative comment envisioned by the Supreme

Court and our circuit as not running afoul of Miranda.

Consequently, because Cohn's failure to secure suppression of Orr's custodial

confession did not constitute ineffective assistance under Strickland, the district court

did not abuse its discretion in denying Orr's motion for new trial on that basis.

4. Allegedly Improper Efforts To Dissuade Orr 

from Testifying on His Own Behalf

Orr also alleges that Cohn ineffectively assisted him by improperly dissuading

him from testifying on his own behalf. Orr's argument is misplaced. As the district

court noted in its denial of Orr's new-trial motion, Orr "cannot and does not claim that

he was unaware of his right to testify. The court engaged the defendant in an elaborate

discussion concerning his right to testify, his right to refuse to testify and what the

jury would be told under either of those circumstances." Furthermore, at the district

court's evidentiary hearing on his new trial motion, Orr conceded that Cohn never told

him he could not testify. The record reflects that Orr knew that he could decide

whether to testify on his own behalf. 

Moreover, we consistently have affirmed that a defense counsel's decision not

to call a witness is a "'virtually unchallengeable decision of trial strategy.'" Watkins,

486 F.3d at 465 (quoting United States v. Staples, 410 F.3d 484, 488 (8th Cir. 2005)).

Trial counsel could not recall at the evidentiary hearing whether he spoke with Orr

about his decision to testify. However, Orr admitted that Cohn advised Orr not to

testify because the government would likely attempt to discredit Orr with evidence of
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his past drug-related convictions and activities. As the district court correctly

concluded on this point, Cohn's advice to Orr not to testify "'to prevent the

government from cross-examining [Orr] about an earlier drug conviction clearly falls

within the limits of reasonable trial strategy.'" (quoting Sumlin v. U.S., 46 F.3d 48, 49

(8th Cir. 1995)).

Accordingly, Cohn did not render ineffective assistance of counsel in advising

Orr not to testify, and the district court did not abuse its discretion in denying Orr's

new trial motion to the extent it sought relief on that basis.

5. Failure To Call Pfaltzgraff as a Defense Witness

For virtually the same reasons that Cohn did not ineffectively assist Orr in

advising Orr not testify, counsel also did not err in refusing to call Orr's girlfriend,

Pfaltzgraff, as a witness. As already stated, Orr offers no persuasive reason to vary 

from the usual deference to counsel's legitimate trial strategy. See Watkins, 486 F.3d

at 465.

At the evidentiary hearing, Pfaltzgraff proffered the testimony she would have

given at trial. Specifically, Pfaltzgraff claimed that she would testify that the shotgun

found under the master bed at the Washington Avenue house had been inadvertently

left there by Nelson—the man who claimed to have traded the gun and the X-box to

Orr for crack. Additionally, she would have stated that she, not Orr, purchased the

X-box secondhand from Nelson with no knowledge that it had been stolen. Pfaltzgraff

also claimed that she would have testified at trial that Orr's actual residence on

September 14, 2006, the time of the first search warrant's execution, was 803 Summer,

not 1305 Washington. Pfaltzgraff recollected that Orr did not begin living with her at

the Washington Avenue house until just prior to the second search warrant's execution

on June 1, 2007. Finally, Pfaltzgraff proffered that she would have testified that she

has never seen or met Christofferson at her house, nor has she seen Orr sell drugs to

Christofferson or anyone else.
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Having considered this proffer by Pfaltzgraff at the evidentiary hearing, the

district court properly concluded that Cohn's decision not to call her was reasonable

because "'the potential costs of calling the witness[ ] outweighed the potential

benefits.'" (quoting Staples, 410 F.3d at 488). Undoubtedly, the government would

have attacked Pfaltzgraff's credibility with the same effectiveness it did at her

evidentiary hearing. On cross-examination at the evidentiary hearing, Pfaltzgraff had

no explanation as to why Orr's state-issued identification listing the Washington

Avenue home as his address, was recovered from the master bedroom dresser.

Similarly, Pfaltzgraff was unable to account for Orr's tax records in her home which

also listed the Washington Avenue property as his address, or further, why those tax

records listed Pfaltzgraff's children as Orr's dependents. Finally, the government

merely sampled the voluminous recordings of jailhouse phone conversations between

Orr and Pfaltzgraff, to probe Pfaltzgraff regarding her comment to Orr that he should

have gotten a job during the time he was under investigation. 

Under these facts, "[b]ecause [Pfaltzgraff's] testimony was potentially damaging

and would not have exonerated [Orr], counsel's decision not to call her to testify at

[Orr's] trial was not objectively unreasonable." Watkins, 486 F.3d at 465 (citing

Strickland, 466 U.S. at 688). Therefore, the district court did not abuse its discretion

in denying Orr's new trial motion on these grounds.

B. Orr's Motion in Limine and Objection to Hearsay Evidence

1. Orr's Motion in Limine

On June 20, 2008, Orr filed his "Motion [in Limine] To Exclude Evidence of

Burglary of Residence of Brayden Bergen." Therein, Orr sought to exclude evidence

of the burglary of Mr. Brayden Bergen's house, asserting that "Defendant is not a

suspect of that burglary and presenting such evidence would be more prejudicial than

its probative worth." This burglary ultimately produced the stolen X-box which Orr

accepted from Nelson in exchange for crack cocaine. The district court denied Orr's

motion, and Orr now asserts that the district court erred in doing so. 
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A district court's denial of a motion in limine is reviewed only for abuse of

discretion. United States v. Blaylock, 535 F.3d 922, 927–28 (8th Cir. 2008).

Essentially, Orr's motion in limine was predicated on the theory that any evidence

pertaining to the burglary was irrelevant under Federal Rule of Evidence 401 or,

alternatively, that its probative value was substantially outweighed by its unfair

prejudice in violation of Federal Rule of Evidence 403. For its part, the government

maintained that evidence of the burglary was relevant and admissible because it was

offered merely to explain how law enforcement's attention initially settled on Orr.

Because this is an arguably close question of evidence, we cannot conclude that

the district court abused its discretion in allowing evidence of the burglary. Moreover,

even assuming that the evidence was irrelevant or was otherwise inadmissible due to

undue prejudice, this error was harmless. See United States v. Parish, 606 F.3d 480,

487 (8th Cir. 2010) ("Even if the district court erred in admitting the evidence, we will

not reverse if the admission of the evidence was harmless."). As already stated, the

jury heard ample evidence upon which to base its guilty verdict, and Orr cannot

reasonably argue that, but for this evidentiary ruling, the trial's outcome might have

differed.

2. Allegedly Hearsay Evidence

Similarly, the trial court did not err in admitting evidence of the burglary

through Deputy Whitaker's testimony. Because Orr did not object to the evidence's

introduction at trial, we need only review the district court's admission of the

testimony for plain error. United States v. Richardson, 537 F.3d 951, 959 (8th Cir.

2008). As we have observed, an out-of-court statement is not offered for the truth of

the matter asserted, and is thus not hearsay, when it is offered merely to show why

police began surveilling an area or following a criminal suspect. Parish, 606 F.3d at

487–88. The government offered Deputy Whitaker's testimony regarding the burglary

only as background to explain why police initiated their investigation of Orr. Thus,
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the statement was not inadmissible hearsay because it was not offered to prove the

truth of the matter asserted, i.e. that a house was in fact burglarized. Accordingly, the

trial court did not plainly err in allowing Deputy Whitaker's testimony.

C. Retroactivity of the Fair Sentencing Act of 2010

On September 2, 2010, Orr filed a pro se supplemental brief, urging this court

to apply the newly enacted Fair Sentencing Act of 2010 retroactively to his case, and

remand his case to the district court for resentencing. Generally, we do not consider

pro se arguments raised on appeal by defendants who are represented by counsel.

United States v. Moore, 481 F.3d 1113, 1114 n.2 (8th Cir. 2007). In any event, our

precedents foreclose Orr's argument on this point, and therefore he is not entitled to

the retroactive application of the Fair Sentencing Act of 2010 to his case.

Orr was tried between August 11 and August 13, 2008, and subsequently

sentenced on November 12, 2009, to life imprisonment for Count 1 (Conspiracy to

Distribute 50 Grams or More of Crack Cocaine), a mandatory minimum sentence

under the Controlled Substances Act, Orr's statute of conviction. See 21 U.S.C.

§§ 846, 841(b)(1)(A). On August 3, 2010, during the pendency of Orr's appeal,

President Barack Obama signed into law the Fair Sentencing Act of 2010 (FSA),

which reduced sentencing disparity between crack cocaine and powder cocaine

offenses, lowering the statutory sentencing ratio from 100:1 to 18:1. Pub. L. 111-220,

124 Stat. 2372 (Aug. 3, 2010). Under the amended Act, the government would have

had to prove Orr distributed 280 grams of crack cocaine instead of 50 in order to

trigger a mandatory-minimum life sentence. Id. at § 2(a)(1). Orr now urges the court

to retroactively apply this amendment to his case and remand for resentencing.

The federal savings statute, 1 U.S.C. § 109, governs whether penal legislation

that either decriminalizes previously criminal conduct or lessens the punishment

therefor applies retroactively. The federal savings statute provides in pertinent part,

that 
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[t]he repeal of any statute shall not have the effect to release or

extinguish any penalty, forfeiture, or liability incurred under such statute,

unless the repealing Act shall so expressly provide, and such statute shall

be treated as still remaining in force for the purpose of sustaining any

proper action or prosecution for the enforcement of such penalty,

forfeiture or liability. 

1 U.S.C. § 109.

The federal Savings Statute "was enacted to overcome the common law rule

that all pending prosecutions abate when a criminal statute is repealed." Martin v.

United States, 989 F.2d 271, 273 (8th Cir. 1993) (citing Warden v. Marrero, 417 U.S.

653, 660 (1974)). To that end, the Savings Statute conditions the retroactivity of

federal penal legislation intended to decriminalize or lessen the punishment for

previously criminal acts, on Congress's express provision within the legislation for its

retroactive application. That the FSA is technically an amendment of the Controlled

Substances Act, and not a repeal in toto, is of no moment, because this court has held

that "the general saving clause applies to both." Martin, 989 F.2d at 274. 

Thus, as we have previously recognized, Congress expressed no desire in the

FSA that the law be applied retroactively, and consequently the federal Savings

Statute clearly forecloses Orr's argument for retroactive application. See United States

v. Brewer, 624 F.3d 900, 909 n.7 (8th Cir. 2010) ("[B]ecause the Fair Sentencing Act

contains no express statement that it is retroactive, . . . the 'general savings statute,'

1 U.S.C. § 109, requires us to apply the penalties in place at the time the crime was

committed."); see also United States v. Brown, No. 10-1791, 2010 WL 3958760, at

*1 (8th Cir. Oct. 12, 2010) (unpublished) ("general savings statute, 1 U.S.C. § 109,

requires application of penalties in place at time crime was committed unless new

enactment expressly provides for its own retroactive application; Fair Sentencing Act

of 2010 contains no express statement that it is retroactive and no such express intent
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can be inferred from its plain language.") (quoting United States v. Carradine, No. 08-

3220, 2010 WL 3619799, at *4–5 (6th Cir. Sept. 20, 2010)).

III. Conclusion

Accordingly, we affirm.

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