Reversed district court judgment denying petition for writ of habeas corpus.

Petitioner was denied his Sixth Amendment right to a trial by an impartial jury drawn from a fair cross-section of the community. African-Americans were underrepresented in the Kent County jury pool. Because the group is small, the appropriate measure of underrepresentation is the comparative disparity test rather than the absolute disparity test. At the time of petitioner's trial, the number of African Americans on Kent County jury panels was 34 percent lower than it should have been using random selection, demonstrating an unfair and unreasonable representation.

The procedures employed by Kent County in constituting its juror pool systematically produced the underrepresentation. Kent County allowed prospective jurors to opt out of jury service if jury duty would constitute a hardship based on child care and transportation concerns, and this procedure disproportionately impacted African American prospective jurors. Those African Americans who appeared for jury duty were diverted away from circuit courts because of the priority given to the district court in Grand Rapids. [Note: this practice stopped in 1993, after the trial in this case.] Thus, petitioner demonstrated that the underrepresentation was inherent in the jury selection system.

The State had a significant interest in avoiding undue burdens on individuals by allowing excuses based on the inability to obtain transportation or child care. However, respondent failed to demonstrate a significant interest in the assignment of Grand Rapids residents to the district court in Grand Rapids prior to assignment in Kent County circuit courts. Petitioner therefore demonstrated a violation of his right to jury drawn from a fair cross-section of the community. The Michigan Supreme Court's decision to the contrary was an unreasonable application of clearly established federal law as announced in Duren v Missouri, 439 US 357 (1979).

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Reversed district court's denial of petition for writ of habeas corpus.

Petitioner was denied his Sixth Amendment right to effective trial counsel and suffered actual prejudice resulting from his attorney's conflict of interest in representing both petitioner and his codefendant. As a result of the conflict, counsel refrained from doing what was in petitioner's best interests: he failed to call witnesses whose testimony would have been beneficial to petitioner and he failed to cross-examine the codefendant in order to establish petitioner's alibi as he could not do so without inculpating the codefendant. The Kentucky court unreasonably applied Supreme Court precedent to the facts in petitioner's case.

Petitioner was denied his Sixth Amendment right to effective counsel on appeal. Because the same attorney who labored under a conflict of interest at trial handled his appeal, petitioner was unable to raise on direct appeal the obvious conflict of interest at trial.

Judge Batchelder, dissenting, would find that trial counsel did not labor under an actual conflict of interest.

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Reversed district court order denying motion to suppress.

The police lacked sufficient basis to believe that defendant was in the apartment prior to the manager's entry, at the behest of the police, to check a non-existent maintenance problem. The language in United States v Pruitt, 458 F3d 477 (CA6, 2006), that a lesser reasonable belief standard, not probable cause, is sufficient to allow officers to enter a residence to execute an arrest warrant, is merely dicta. Probable cause is probably the correct standard, but assuming the lesser standard applies, the officers did not have sufficient evidence to form a reasonable belief that defendant was in the apartment.

The manager was acting as an agent of police, and any possible consent defendant may have given the manager to enter was invalidated by the manager's use of the ruse, concocted by the police, that he was investigating a water leak. Although a ruse used by police does not usually violate an individual's rights, here the effect of the ruse was to convince the resident that he had no choice but to invite the undercover officer in, and, therefore, defendant’s Fourth Amendment rights were violated.

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Affirmed convictions of carjacking and brandishing a firearm.

The evidence was sufficient to sustain the conviction of carjacking with intent to cause death or serious bodily harm. There was evidence that defendant used his .40 caliber pistol during the carjackings, and the jury had reason to disbelieve defendant's assertion that he thought the vehicle was unoccupied. In the absence of physical touching, the government is not required to prove beyond a reasonable doubt that the firearm was loaded.

The district court did not err in counting the two carjacking convictions as separate offenses for purposes of sentencing even though he was also convicted of conspiracy to commit multiple carjackings.

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Reversed RICO and RICO conspiracy convictions; affirmed conviction of drug conspiracy. (Part of a consolidated appeal involving members of the Outlaw Motorcycle Club, “OMC”).

Defendant was indicted for the same pattern of racketeering activity in both Florida and Ohio, and the substantive RICO and RICO conspiracy charges violated the Double Jeopardy Clause. The indictments involved an overlap in time period, participants, and statutory offenses involved. Defendant's prosecution in Ohio sought to punish the same activity that he was previously prosecuted for in Florida.

Defendant's successive indictment for drug conspiracy did not violate double jeopardy. Although there was some overlap between the co-conspirators involved in each conspiracy, the conduct the government sought to punish in Ohio was different in scope and nature from the conduct charged in the Florida indictment.

Defendant's mandatory life sentence was properly imposed as defendant had two or more prior convictions for a felony drug offense. Any sentencing error relating to Booker would be harmless as defendant cannot receive a sentence lower than the statutory maximum.

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Affirmed convictions of RICO offense, RICO conspiracy, conspiracy to distribute drugs and conspiracy to use a firearm during the commission of a drug trafficking crime; vacated 10-year consecutive sentence. (Part of a consolidated appeal involving members of the Outlaw Motorcycle Club, “OMC”).

The affidavit in support of the search warrant provided the magistrate with a substantial basis for finding probable cause. The affidavit related specific details about defendant's criminal activities and possession of contraband, explained the basis for the information, and provided implicit assurances of the reliability of the information. The fact that the affidavit did not explicitly vouch for the confidential informant's reliability did not undermine the finding of probable cause.

There was insufficient evidence for a Franks [Franks v Delaware, 438 US 154 (1978)] hearing that the ATF agents intentionally misled the magistrate by failing to acknowledge the confidential informant's involvement in ongoing criminal activity, and such an omission would not have had an impact on the finding of probable cause.

The district court did not err in admitting defendant's post-arrest statements to the police. No adversarial judicial proceedings had been initiated against him at the time he was questioned, so there could not have been a Sixth Amendment violation. There was no Fifth Amendment violation as defendant's statements were not coerced or involuntary. Defendant was intelligent, had been advised of his Miranda rights, the length of time he was questioned did not have a coercive effect, there was no type of abuse, and no promises of leniency.

The evidence of both the substantive and conspiracy RICO charges was sufficient. There was evidence that defendant participated in the drug distribution enterprise of the motor cycle gang (OMC), he had some part in directing the enterprise's affairs, and there was evidence of a pattern of racketeering activity. There was little doubt that the OMC was a long-term association that existed for criminal purposes. The government supplied proof of the conspiracy by evidence that defendant intended to further an endeavor which would constitute a substantive RICO offense.

The district court did not err in failing to instruct on the lesser offenses of manslaughter and criminal confinement. Defendant was not actually charged with the offense of murder. Murder was alleged as one of his RICO predicate acts, and there is no such thing as a lesser-included-predicate-act instruction.

Any error in the introduction of evidence against a co-defendant was harmless, and there was no error in the admission of evidence that defendant murdered a witness who possessed incriminating photographs. The evidence was properly admitted to show defendant's membership in the conspiracy by demonstrating that he was attempting to preserve the criminal enterprise.

Defendant's sentence must be vacated in its entirety because the district court erred in imposing a 10-year consecutive sentence for the firearm offense. The sentences imposed for the RICO and conspiracy offenses should be vacated as well because the district court's decisions with respect to these offenses were most likely influenced by its erroneous belief that a 10-year consecutive sentence was mandated.

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Reversed two RICO convictions, affirmed drug conspiracy conviction, vacated sentence. (Part of a consolidated appeal involving members of the Outlaw Motorcycle Club, “OMC”).

The district court did not err in failing to sever defendant's trial. Defendant failed to show compelling, specific, and actual prejudice from the refusal to grant the motion for separate trials. There was no evidence that the jury was unable to heed the district court's instructions to consider separately the evidence against each defendant.

The district court did not err in allowing the government to introduce out-of-court statements made by a co-defendant. The statements did not facially incriminate or even mention defendant. Any error would have been harmless.

The evidence was sufficient for a rational trier of fact to conclude that members of the motorcycle gang (OMC) agreed to violate drug laws and that defendant intentionally participated in the conspiracy. However, the record does not support the jury's finding that defendant violated the Travel Act. That defendant rode in the same vehicle as the OMG member who attended an OMG meeting does not establish that defendant assisted or encouraged the other member's travel. The record is not sufficient to sustain the conspiracy conviction as there was insufficient evidence that defendant agreed to two or more predicate acts.

The evidence provided a sufficient basis from which the district court could conclude that defendant was responsible for trafficking in 15 kilograms of cocaine in determining the base offense level of 34. The district court did err in failing to impose a two-level dangerous-weapon increase. The evidence proved by a preponderance of the evidence that defendant possessed a dangerous weapon while engaged in the drug conspiracy.

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