Appeal from the United States District Court for the Eastern District of Michigan at Bay City. No. 04-20049-Thomas L. Ludington, District Judge.
The opinion of the court was delivered by: Clay, Circuit Judge.
RECOMMENDED FOR FULL-TEXT PUBLICATION Pursuant to Sixth Circuit Rule 206
Argued: November 17, 2009
Before: MERRITT, CLAY, and McKEAGUE, Circuit Judges.
CLAY, J., delivered the opinion of the court, in which MERRITT, J., joined, and also filed a separate concurring opinion (p. 19). McKEAGUE, J. (pp. 20-25), delivered a separate opinion concurring in part and dissenting in part.
Defendant Barbara Wallace appeals her conviction and sentence following her conviction for perjury in violation of 18 U.S.C. § 1621, conspiracy to possess with intent to distribute oxycodone (OxyContin) in violation of 21 U.S.C. § 841(a)(1), and use of a communication facility to facilitate a drug crime in violation of 21 U.S.C. § 843(b). She appeals challenging both her conviction and the procedural reasonableness of her sentence. For the following reasons, Wallace's conviction is AFFIRMED, but her sentence is VACATED, and the case is REMANDED for re-sentencing.
Wallace has been tried twice on the drug charges. A first trial ended in mistrial when the jury could not reach a unanimous verdict. A new indictment was filed adding two counts of perjury based on Wallace's testimony at the first trial. The perjury and drug charges were tried together at a second trial where Wallace was found guilty of all charges. She was given concurrent sentences, the longest of which was seventy-eight months.
Wallace came to the attention of authorities following an investigation that began in Saginaw, Michigan. Federal authorities were suspicious of a series of packages sent to a "Kim Smith" in Saginaw from addresses in California that did not exist. A package was intercepted in October 2004, and a drug detection dog picked the package out of a package "line up." The postal inspector opened the package and found sixty tablets of OxyContin. In connection with the delivery of this package, a search warrant was executed which revealed that the intended recipient was Wardell Amos. Upon further investigation, it was determined that the addressed recipient, "Kim Smith," did not exist. Amos agreed to cooperate with the government and placed a phone call to Wallace's home.
During the investigation, Drug Enforcement Agency ("DEA") agents found copies of six Express Mail packages of similar weight sent from California to "Kim Smith." One of the packages identified on the return address a Jean Wallace of 435 East 84th Place, Los Angeles, California. Wallace's mother's address was 433 East 84th Place in Los Angeles. The defendant's middle name is Jean. Security cameras at the post office in Los Angeles showed Wallace and her boyfriend Dameon White-Baber entering the post office and showed Wallace filling out the mailing label. The package included a doll that Wallace later claimed she was sending to a relative of White-Baber. The OxyContin was inside the packaging for the doll. The parties stipulated that Wallace completed the Express Mail label for packages mailed on May 28, 2004 and October 20, 2004, while White-Baber completed the labels for other packages sent to Amos' address. Wallace testified at her first trial that White-Baber's family referred to her as "Jean."
Additionally, on August 26, 2004, Wallace and White-Baber went to a Western Union Office to cash a five hundred dollar money order in Wallace's name. At her initial trial, Wallace testified that she did not end up with any of the cash. At the second trial, the Western Union clerk testified that office policy would have been to hand the money to Wallace, since the wire was in her name, and she signed for it. At the second trial, Wallace clarified that she did not remember whether the money was initially handed to her but insisted that White-Baber ended up with it eventually.
Wallace was charged on August 24, 2005 with a four-count indictment for conspiracy to possess with intent to distribute and to distribute OxyContin in violation of 21 U.S.C. § 841(a)(1) and misuse of a communications facility in connection with a drug offense in violation of 21 U.S.C. § 843(b). Wallace was added to a previous indictment that had included Wardell Amos and Dameon White-Baber. A Fifth Superceding Indictment removed Amos from the indictment, following his plea, and added a second count against Wallace for use of a communication facility to commit a drug crime in violation of 21 U.S.C. § 843(b).
The first trial commenced on December 5, 2006 and continued until December 13, 2006, when a mistrial was declared because the jury could not reach an unanimous verdict. On February 28, 2007, a Sixth Superceding Indictment was issued only against Wallace. It included the five drug charges from the previous indictment and added two counts of perjury, in violation of 18 U.S.C. § 1621, based on Wallace's testimony at her trial. At a status conference on April 5, 2007 before the district judge, Wallace and her counsel specifically stated that they had discussed making a motion to sever the perjury and drug charges. Wallace stated that she understood that she could ask to separate the perjury and drug charges, but she wanted to try all counts together. The second trial began on May 15, 2007, and the drug and perjury charges were tried together. Defendant filed a motion for acquittal pursuant to Rule 29 of Federal Rules of Criminal Procedure that was denied. The jury convicted her of all counts. Wallace was sentenced to seventy-eight months in prison. She timely filed an appeal of both the conviction and the sentence.
I. Joinder of Drug and Perjury Charges
Defendant's first argument challenging her conviction is that the joinder of the drug and perjury charges was improper. It is unclear from Defendant's briefing whether she challenges the indictment itself as improper or the actual joinder at trial, nor is it clear that the analysis would be different based on which of those two things Wallace was actually challenging. No matter what she is challenging, the verdict must stand because Defendant waived her right to separate trials on the drug and perjury counts and has suffered no constitutional harm as a result of all charges being tried together in a single trial. Defendant admits that she did not object to the joinder of the drug and perjury charges pursuant to Federal Rule of Criminal Procedure 14. Under Federal Rule of Criminal Procedure 12(b)(3), a Rule 14 motion to sever charges must be raised before trial. Under Rule 12(e), any Rule 12(b)(3) objection is waived if not made in the allotted time prior to trial. A court may grant relief from the waiver "for good cause." Fed. R. Crim. P. 12(e) ("A party waives any Rule 12(b)(3) defense, objection, or request not raised by the deadline the court sets under Rule 12(c) or by any extension the court provides. For good cause, the court may grant relief from the waiver.").
Defendant argues that her failure to object to the allegedly prejudicial joinder means that the district court's decision should be considered subject to plain error review. For support, she cites United States v. Abboud, 438 F.3d 554 (6th Cir. 2006). Abboud is silent on the standard of review for these claims. That case dealt with a defendant's challenge to an indictment that charged as separate counts each check in a check kiting scheme. The defendant had not made a proper objection, and the Court analyzed whether the argument was therefore waived. The principal relevant holding is that even if a defendant fails to object to the procedural violation of an improper indictment, she can still make substantive objections, such as a double jeopardy claim. In Abboud, this Court found that the defendant had failed to make any substantive objections, and that even if he had, his claim of multiplicity in the indictment, based on separate counts for each check, lacked merit. Certainly "plain error" is the general rule for appellate review of a district court decision where a party failed to object, but in this case, Wallace's appeal would fail under any standard.
While Abboud provides the framework for how to analyze a substantive challenge to the improper joinder of counts for trial, Wallace fails to present her arguments in that framework. Wallace's primary challenge is to the joinder of the perjury and drug charges, but she goes beyond the alleged defectiveness of the indictment to argue that the government improperly shifted the burden and took away Wallace's Fifth Amendment right to silence on the drug charges. To begin, Wallace makes a broad challenge to the joinder of both the perjury and drug counts. It is uncontested that Defendant waived any right she might have had to contest the joinder of these charges for trial. In fact, Defendant stated affirmatively, on the record, that she preferred to have just one trial. (J.A. 465-66). The clear meaning of Rule 12(b)(3) indicates that Wallace waived the right to make this argument before this Court. See Abboud, 438 F.3d at 567 (finding Defendant who did not make a Rule 12 objection could not challenge the indictment and could only challenge independent "substantive" errors); see also, United States v. Sturman, 951 F.2d 1466, 1476 (6th Cir. 1991) (finding a severance argument waived when it was not renewed during trial).
Wallace never explains the basis for her argument that she has not waived her right to contest this issue, nor does she argue that this Court should grant relief from the waiver for "good cause." The cases she cites include that of a defendant who properly moved under Rule 14 to sever the allegedly unrelated charges, United States v. Graham, 275 F.3d 490, 511 (6th Cir. 2001), and that of a defendant who moved to create separate trials for multiple defendants, United States v. Breinig, 70 F.3d 850, 853 (6th Cir. 1995). These cases dealing with the deferential standard to be accorded a district court's decision on a Rule 14 motion have no relevance in this case, in which no Rule 14 motion was ever made, and in which the Defendant specifically stated on the record that she desired only one trial. Defendant's explicit waiver precludes this Court from addressing any claim based solely on the joinder of the drug and perjury counts.*fn1
Since Wallace waived her right to challenge the improper joinder on its own terms, the "question then becomes whether Defendant made any substantive objections" to the allegedly improper joinder. Abboud, 438 F.3d at 567. Wallace sets forth no argument in these terms, and it is likely that she has waived her right to object. Id. (finding waiver where defendant never claimed violation of a substantive right). Wallace's brief can be read favorably to raise several substantive points. She argues the improper indictment allowed the prosecutor to impermissibly shift the burden to Wallace and that the indictment denied Wallace her Fifth Amendment right to remain silent regarding the drug charges.*fn2
Wallace appears to contend that the burden of proof was improperly shifted in a series of statements made by the prosecutor. The statements about which she complains do not appear to be problematic. For instance, Wallace complains that the prosecutor argued that Wallace "expects you to believe" the testimony at the first trial and that "she just did not know and did not care." It is unclear what burden this is allegedly shifting. Prosecutors are allowed to point out to the jury what evidence and testimony support their case so long as they do not exceed the bounds of propriety. It is not shifting the burden of proof to state that "there is nothing to substantiate" Wallace's testimony. These statements are merely comments on the evidence, and Wallace fails to offer any case citations in support of her argument.
Her Fifth Amendment challenge is equally flawed. Wallace argues that she lost her Fifth Amendment right to remain silent regarding the drug charges as a result of the district court's joinder of the drug and perjury charges. She chose to have both charges tried in one trial, and she chose to testify at the second trial. The government did not force her to request to try the charges in a single trial or to testify at the second trial. Because a person is entitled to waive a constitutional right as a matter of trial strategy, see Watkins v. Kassulke, 90 F.3d 138, 142-43 (6th Cir. 1996), Wallace cannot now complain about any harm she perceives to have resulted from her explicit waiver of the right to move for separate trials. Wallace's Fifth Amendment claim is different from the substantive rights at issue in the cases discussed in Abboud. For instance, in United States v. Rosenbarger, 536 F.2d 715 (6th Cir. 1976), the defendant failed to lodge a multiplicity objection at trial, but he was still entitled to object to multiplicitous sentences imposed in violation of the Double Jeopardy Clause. See also, United States v. Adesida, 129 F.3d 846, 849 (6th Cir. 1997) (holding that a failure to object to a duplicitous indictment did not affect defendant's right to challenge the possibility of a less than unanimous verdict for each offense). In the instant case, Wallace had a Fifth Amendment right to remain silent, but she chose not to exercise it. For strategy reasons, she may have decided that having all the elements tried together was a better decision. In any event, she cannot escape the consequences of that decision because it resulted in her testifying about the drug transactions in the context of defending herself against perjury charges.
II. Motions for Acquittal on the Perjury Counts
Wallace also appeals the denial of her Rule 29 motion for acquittal on the perjury counts. Because Wilson made such a motion at the close of all proofs, we review the district court's decision to deny Wilson's motion de novo. United States v. Budd, 496 F.3d 517, 530 (6th Cir. 2007). In reviewing the sufficiency of the evidence, the relevant inquiry is "'whether, after reviewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a ...