Daniel Corral v. USA

Filing

OPINION filed : We AFFIRM the district court s holdings that Corral procedurally defaulted his claims of defective sentencing and prosecutorial vindictiveness, as well as its finding that Corral was not denied effective assistance of counsel when his trial counsel failed to file a motion for change of venue. We REVERSE the district court s decision not to hold an evidentiary hearing, finding that the evidence does not conclusively show that Corral is entitled to no relief, and REMAND for an evidentiary hearing as to his double jeopardy claim and the corresponding ineffective assistance of counsel claim. Decision not for publication. Eugene E. Siler , Jr., Circuit Judge; R. Guy Cole , Jr., Circuit Judge and Deborah L. Cook, Circuit Judge.

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NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
File Name: 14a0265n.06

FILED

Case No. 12-1897
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT

DANIEL CORRAL,
Petitioner-Appellant,
v.
UNITED STATES OF AMERICA,
Respondent-Appellee.

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Apr 09, 2014
DEBORAH S. HUNT, Clerk

ON APPEAL FROM THE UNITED
STATES DISTRICT COURT FOR
THE EASTERN DISTRICT OF
MICHIGAN

BEFORE: SILER, COLE, and COOK, Circuit Judges.
SILER, Circuit Judge. Petitioner Daniel Corral appeals the district court’s order denying
his motion to vacate, set aside, or correct sentence pursuant to 28 U.S.C. § 2255. Corral pleaded
guilty in California and Michigan for participating in drug conspiracies that Corral claims to be
one and the same. The district court denied Corral’s motion to vacate. Thereafter, we granted
him a certificate of appealability (“COA”) on certain issues. We AFFIRM the district court’s
holdings that Corral procedurally defaulted his claims of defective sentencing and prosecutorial
vindictiveness, as well as its finding that Corral was not denied effective assistance of counsel
when his trial counsel failed to file a motion for change of venue. We REVERSE the district
court’s decision not to hold an evidentiary hearing, finding that the evidence does not

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conclusively show that Corral is entitled to no relief, and REMAND for an evidentiary hearing
as to his double jeopardy claim and the corresponding ineffective assistance of counsel claim.
BACKGROUND
I.

Indictments
Daniel Corral was indicted in both the Central District of California and the Eastern

District of Michigan for conspiracy to distribute a controlled substance. Corral argues that both
indictments were returned because of his role in an ongoing drug conspiracy called the Black
Mafia Family (“BMF”), resulting in the indictment of BMF members across the United States.
On November 1, 2007, Corral was indicted in California for conspiracy to distribute a
controlled substance in violation of 21 U.S.C. §§ 846, 841(a)(1), and 841(b)(1)(A). A
superseding indictment was returned on June 18, 2008, but Corral’s charges remained the same.
The indictment charged that, beginning on an unknown date “and continuing to on or about
November 1, 2007, in Los Angeles County . . . and elsewhere,” Corral, his co-defendants, “and
others known and unknown to the Grand Jury,” conspired to distribute certain amounts of
cocaine, crack cocaine, heroin, phencyclidine, and marijuana.
The California indictment alleged overt acts performed by the co-defendants starting in
February 2007. According to the indictment, co-defendant Ralph Simms purchased cocaine from
Corral. The indictment charged that on July 23, 2007, using coded language in a telephone
conversation, Simms told co-defendant Demond Lee that he had given Corral money to purchase
cocaine; and that on August 6, 2007, again using coded language in a telephone conversation,
Corral told Simms about money he owed cocaine suppliers for a stolen shipment.
Then, on April 9, 2008, Corral was indicted in Michigan for one count of conspiracy to
distribute a controlled substance, specifically five kilograms or more of cocaine, in violation of

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21 U.S.C. §§ 846, 841(a)(1), and 841(b)(1)(A)(ii)(II), and for one count of conspiracy to launder
monetary instruments. A superseding indictment was returned on November 14, 2008, but
Corral’s charges remained the same.
As to the first count for conspiracy to distribute cocaine, the Michigan indictment alleged
that from on or about January 1, 1990, through the time of the indictment, Corral, his codefendants, “and others known and unknown to the Grand Jury, including Terry Lee Flenory and
Demetrius Edward Flenory,” the alleged leaders of the BMF, conspired to distribute cocaine. The
indictment charged that the Flenorys established the drug conspiracy for the purpose of buying
and selling cocaine in the Detroit metropolitan area and then extended the organization to other
areas of the United States, including Los Angeles, California. The Flenorys then began to refer to
their entity as the BMF between 2001 and 2003. According to the indictment, Corral and certain
other co-defendants “would facilitate the conspiracy by, inter alia, transporting and/or
distributing cocaine, loading and unloading cocaine, counting drug-related currency, processing
cocaine and brokering cocaine transactions.”
In the second count for conspiracy to launder monetary instruments, the Michigan
indictment alleged that from on or about January 1990 through the time of the indictment,
Corral, his co-defendants, and others known and unknown to the Grand Jury, including the
Flenorys, conducted financial transactions involving the proceeds from the unlawful activity of
the first count for the purpose of carrying on the conspiracy to distribute cocaine.
II.

Pleas and Sentencing
In November 2008, Corral agreed to plead guilty in Michigan to both conspiracy to

distribute five kilograms or more of cocaine and conspiracy to launder monetary instruments. In
exchange for his cooperation in the investigation and prosecution of others involved in the BMF,

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the government agreed to seek a downward departure from the guideline imprisonment range of
262-327 months to 131-163 months.
During plea negotiations, Corral’s trial counsel claims that he felt there was an overlap in
the conspiracies in California and Michigan that violated Corral’s constitutional protection
against double jeopardy sufficient to form a basis for filing a motion to dismiss the indictment.
Counsel says he discussed the matter with the government, but the government said if he
litigated the issue, it was not interested in Corral’s cooperation. As a result, counsel advised
Corral to forgo the motion and enter the agreement with the government because losing the
motion and the benefit of the agreement would result in a more severe punishment. Counsel did
not do extensive research on the merits of the double jeopardy motion.
After entering his plea agreement but prior to being sentenced in Michigan, Corral
pleaded guilty in California1 and was sentenced there in December 2010 to 46 months’
imprisonment and five years’ supervised release. Subsequently, in January 2011, the Michigan
district court sentenced Corral to 120 months’ imprisonment on each count to run concurrently,
followed by five years’ supervised release. The Michigan and California sentences run
concurrently.
III.

Appeals
Corral moved the district court to vacate, set aside, or correct sentence pursuant to 28

U.S.C. § 2255, arguing that his detention violated his rights under the Fifth and Sixth
Amendments. He argued that his conviction violated the Fifth Amendment because he was twice
put in jeopardy for the same offense and the Sixth Amendment because his trial counsel was
ineffective for failing to raise a challenge to venue and for failing to raise a double jeopardy
1

The date Corral pleaded guilty in California is unknown because the California proceedings
have been sealed.
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claim. He further argued that he was entitled to relief because he suffered from prosecutorial
vindictiveness and because his sentence was defective. Corral also requested an evidentiary
hearing; however, the district court denied the request, finding that the motion could be resolved
without a hearing because, quoting the standard in 28 U.S.C. § 2255, “the motion papers,
together with the files and record, ‘conclusively show that [Corral] is entitled to no relief.’”
The district court denied his petition and declined to grant him a COA. It determined that
Corral procedurally defaulted his double jeopardy, defective sentencing, and vindictive
prosecution claims because he did not raise them on appeal. However, the court addressed the
merits of the claims because it assumed that Corral intended to assert his ineffective assistance of
counsel claims as cause to excuse his procedural defaults.
On Corral’s appeal to this court, we granted him a COA on the following issues in light
of the district court’s consideration of them on the merits:
(1) whether Corral’s prosecution for drug conspiracies in both California and
Michigan violated the Double Jeopardy Clause; (2) whether Corral was denied
effective assistance of trial counsel because counsel failed to file a motion to
dismiss the Michigan indictment for drug conspiracy on double jeopardy grounds;
(3) whether Corral was denied effective assistance of trial counsel because
counsel failed to file a motion for change of venue; (4) whether Corral’s sentence
for the money laundering conviction is defective because the district court did not
orally pronounce a sentence for that conviction; and (5) whether Corral’s criminal
proceeding was tainted by prosecutorial vindictiveness.
STANDARD OF REVIEW
“In reviewing the denial of a 28 U.S.C. § 2255 petition, [we] appl[y] a de novo standard
of review of the legal issues and will uphold the factual findings of the district court unless they
are clearly erroneous.” Hilliard v. United States, 157 F.3d 444, 447 (6th Cir. 1998).

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DISCUSSION
I.

Procedural Default
The government argues that Corral procedurally defaulted his claims for double jeopardy,

defective sentencing, and vindictive prosecution because he failed to raise them on direct appeal.
Corral argues that ineffective assistance of counsel excuses failure to raise those issues on direct
appeal and that consideration of the merits of his defaulted claims is central to the determination
of the ineffective assistance of counsel claims.
A federal habeas petitioner who fails to raise claims on direct appeal is required to
demonstrate both cause and prejudice to excuse procedural default. Murray v. Carrier, 477 U.S.
478, 485 (1986). Ineffective assistance of counsel may establish cause for procedural default. See
Edwards v. Carpenter, 529 U.S. 446, 451 (2000).
As noted by the district court, the cause and prejudice inquiry merges with an analysis of
the merits of Corral’s defaulted claims. Therefore, we must consider the merits of his double
jeopardy claim in order to determine whether he has satisfied the cause and prejudice
requirement via his ineffective assistance of counsel claims. However, Corral procedurally
defaulted his claims for defective sentencing and prosecutorial vindictiveness because his claims
of defective sentencing and prosecutorial vindictiveness are unrelated to those claims and he thus
failed to demonstrate cause and prejudice. Carpenter, 529 U.S. at 451.2
II.

Ineffective Assistance of Counsel for Failure to Move for a Change of Venue
Corral alleges ineffective assistance of counsel based on his trial counsel’s failure to

move for a change of venue of the count for conspiracy to launder monetary instruments. He
2

The government also argues that Corral waived his right to appeal as part of his plea agreement.
However, “[a] guilty plea does not automatically foreclose a double jeopardy challenge.” United
States v. Barksdale, 968 F.2d 1216, 1992 WL 163255, at *3 (6th Cir. July 14, 1992) (per
curiam). Therefore, we will consider his double jeopardy claim on the merits.
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claims that the failure to challenge venue falls below the objective standard of reasonableness
and that he was prejudiced because, if counsel had challenged venue, the remaining Michigan
charge for money laundering would have merged with the California money laundering charges
against other defendants, and Corral would likely have received a 46-month sentence.3
In order to establish ineffective assistance of counsel, Corral must show counsel’s
performance was deficient and that it prejudiced the defense. Strickland v. Washington, 466 U.S.
668, 687 (1984). Under the performance inquiry, “the defendant must show that counsel’s
representation fell below an objective standard of reasonableness.” Id. at 688. In the context of a
guilty plea, the prejudice inquiry requires the defendant to “show that there is a reasonable
probability that, but for counsel’s errors, he would not have pleaded guilty and would have
insisted on going to trial.” Hill v. Lockhart, 474 U.S. 52, 59 (1985). Stated differently, “a
defendant must show the outcome of the plea process would have been different with competent
advice.” Lafler v. Cooper, 132 S. Ct. 1376, 1384 (2012).
“[A]ny offense against the United States . . . committed in more than one district[] may
be inquired of and prosecuted in any district in which such offense was begun, continued, or
completed.” 18 U.S.C. § 3237(a). In conspiracy prosecutions, venue is proper “in any district
where the conspiracy was formed or in any district where an overt act in furtherance of the
conspiracy was performed.” United States v. Scaife, 749 F.2d 338, 346 (6th Cir. 1984). In the
case of conspiracy to distribute drugs, the crimes are continuous and “they are not completed
until the drugs reach their final destination, and venue is proper in any district along the way.”

3

This argument presupposes that Corral’s charge for conspiracy to distribute cocaine would have
been dropped if trial counsel had moved to dismiss on double jeopardy grounds. However,
whether such motion would have been successful is irrelevant to the analysis of this claim.
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United States v. Williams, 274 F.3d 1079, 1083-84 (6th Cir. 2001) (quoting United States v.
Turner, 936 F.2d 221, 226 (6th Cir. 1991)).
We employ a substantial contacts test to determine whether venue is proper, taking into
account “the site of the defendant’s acts, the elements and nature of the crime, the locus of the
effect of the criminal conduct, and the suitability of each district for accurate fact finding.”
United States v. Williams, 788 F.2d 1213, 1215 (6th Cir. 1986) (quoting United States v. Reed,
773 F.2d 477, 481 (2d Cir. 1985)).
In order to transfer venue, (1) the defendant must state a wish to plead guilty and to waive
trial in the district where the indictment is pending, consent to the court’s disposing of the case in
the transferee district, and file a statement in the transferee district to that effect; and (2) the
prosecution in both districts must approve the transfer in writing. FED. R. CRIM. P. 20(a).
Corral is unable to establish a claim for ineffective assistance of counsel based on
counsel’s failure to move for a change of venue because such motion had no reasonable
probability of success. We have held that counsel’s failure to make a meritless claim fails both
prongs of the Strickland test:
First, counsel cannot be said to be deficient for failing to take a frivolous action,
particularly since a frivolous effort takes away from non-frivolous issues. Second,
it is evident that failing to make a motion with no chance of success could not
possibly prejudice the outcome.
United States v. Carter, 355 F.3d 920, 924 (6th Cir. 2004).
For the first prong, Corral cannot show that counsel’s performance was deficient. Even if
the conspiracy to distribute cocaine charge was dropped in light of a motion to dismiss based on
double jeopardy, the money laundering charge still stood. Venue was proper as to this charge
because, according to the Michigan indictment, the conspiracy was formed in Michigan and at
least some overt acts occurred in Michigan. See Scaife, 749 F.2d at 346.
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Employing the substantial contacts test also reveals venue in Michigan was proper. See
Williams, 788 F.2d at 1215. Although Corral argues that his acts took place in California
exclusively, it is irrelevant to venue whether the individual defendant entered the district so long
as venue is otherwise proper to the conspiracy. See Scaife, 749 F.2d at 346. Further, the locus of
the effect of the criminal conduct was in Michigan because the BMF was based out of Michigan.
Moreover, Corral’s counsel was not deficient because, even if he had moved to transfer
venue, there is not a reasonable probability that the motion would have been granted. In order to
transfer venue to California for purposes of entering a guilty plea on the money laundering
charge, Corral would have had to secure the government’s approval. See FED. R. CRIM. P.
20(a)(2). This appeal and the purported discussions between his trial counsel and the government
do not show that there is a reasonable probability that the government would have agreed to the
transfer. Therefore, counsel’s performance was not deficient when he failed to make a meritless
claim. Strickland, 466 U.S. at 687; Carter, 355 F.3d at 924.
As to the second prong, Corral cannot show that his defense was prejudiced because the
motion, as discussed above, would have been frivolous. Strickland, 466 U.S. at 687; Carter, 355
F.3d at 924. Because venue was “proper in any district along the way,” Williams, 274 F.3d at
1084, counsel was not ineffective for failing to make a meritless claim. Carter, 355 F.3d at 924.
III.

Double Jeopardy and Ineffective Assistance of Counsel for Failure to Move to
Dismiss
Corral argues that his right to be free from double jeopardy was violated when he was

charged, convicted, and sentenced in California and Michigan for his involvement in the same
drug conspiracy. He further argues that his trial counsel was ineffective in failing to move to
dismiss the count for conspiracy to distribute cocaine on double jeopardy grounds. He also
argues that the district court abused its discretion in failing to hold an evidentiary hearing.
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A. Evidentiary Hearing Standard of Review
We review a district court’s denial of an evidentiary hearing for abuse of discretion.
Witham v. United States, 355 F.3d 501, 504 (6th Cir. 2004). Under § 2255(b), “[u]nless the
motion and the files and records of the case conclusively show that the [petitioner] is entitled to
no relief,” the district court must grant an evidentiary hearing. We have reiterated that “[a]n
evidentiary hearing is required unless ‘the record conclusively shows that the petitioner is
entitled to no relief.’” Arredondo v. United States, 178 F.3d 778, 782 (6th Cir. 1999) (emphasis
added) (quoting Blanton v. United States, 94 F.3d 227, 235 (6th Cir. 1996)). “[N]o hearing is
required if the petitioner’s allegations ‘cannot be accepted as true because they are contradicted
by the record, inherently incredible, or conclusions rather than statements of fact.’” Id. (quoting
Engelen v. United States, 68 F.3d 238, 240 (8th Cir. 1995)).
B. Double Jeopardy
For double jeopardy claims in conspiracy cases, the “ultimate question is whether the
evidence shows one agreement or more than one agreement.” In re Grand Jury Proceedings,
797 F.2d 1377, 1380 (6th Cir. 1986). If the conspiracies for which the defendant was convicted
“were both part of a single agreement,” the second conviction is barred by double jeopardy. Id.
“Because of the peculiar characteristics of the offense of conspiracy, which involves an
agreement to commit unlawful acts that may continue for an extended period of time and may
involve the commission of numerous criminal offenses,” United States v. Gross, 1 F.3d 1242,
1993 WL 300393, at *2 (6th Cir. Aug. 3, 1993) (per curiam), we apply a totality-of-thecircumstances test and examine five factors:
(1) time; (2) persons acting as co-conspirators; (3) the statutory offenses charged
in the indictments; (4) the overt acts charged by the government or any other
description of the offenses charged which indicates the nature and scope of the

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activity which the government sought to punish in each case; and (5) places where
the events alleged as part of the conspiracy took place.
United States v. Sinito, 723 F.2d 1250, 1256 (6th Cir. 1983). Where several of these factors
overlap between the conspiracies, the conclusion follows that the conspiracies are one and the
same. See id. at 1256-57 (“Where several of these factors differ between the conspiracies, the
conclusion follows that the alleged illegal conspiracies are separate and distinct offenses.”).
Application of the test requires burden-shifting among the parties. In re Grand Jury
Proceedings, 797 F.2d at 1380. If the defendant advances a non-frivolous or prima facie showing
that a single conspiracy exists, then the burden shifts to the government, who typically has better
access to the evidence, to show separate conspiracies by a preponderance of the evidence. Id.
The district court found that all five factors weighed in favor of finding multiple
conspiracies. We agree that the persons acting as co-conspirators factor weighs in favor of
finding multiple conspiracies. We have found that where only the defendant was in both
indictments and only three individuals were common to the investigations, the overlap was
“minuscule” and thus did not indicate that a single conspiracy existed. Sinito, 723 F.2d at 1258.
Here, numerous co-defendants were indicted in California and Michigan, but only Corral and
Martez Byrth were named in both. Therefore, the overlap is minuscule when compared to the
overall list of co-defendants and does not indicate that there was only one conspiracy. As such,
the district court did not clearly err in finding that the persons acting as co-conspirators factor
weighed in favor of finding multiple conspiracies. Hilliard, 157 F.3d at 447.
We also agree that the factor for places where the events took place does not indicate a
single conspiracy. The California indictment charged that Corral and his co-defendants conspired
in California and does not mention Michigan. The Michigan indictment charged that the
Flenorys established the BMF in Michigan, but then expanded the BMF across the country,
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including California. Although California is common to both indictments, the majority of the
overt acts alleged in the Michigan indictment took place in different locations, and it does not
specify where Corral participated in illegal activities. Therefore, the district court did not clearly
err in finding that the overt acts took place in different locations and thus weighed in favor of
finding multiple conspiracies. Hilliard, 157 F.3d at 447.
However, we find that the remaining three factors indicate that the Michigan and
California indictments may have charged the same conspiracy, or at least that there is not
adequate evidence in the record to conclude that there were multiple conspiracies, thus requiring
us to remand for an evidentiary hearing.
First, the statutory offenses charged factor weighs heavily in favor of finding a single
conspiracy. When “precisely the same statutory offenses” are charged, this factor tends to weigh
in favor of a single conspiracy. In re Grand Jury Proceedings, 797 F.2d at 1382. The California
and Michigan indictments charged precisely the same statutory offenses: 21 U.S.C. §§ 846 and
841(a)(1). The charges only differentiate between § 841(b)(1)(A) subsections, which accounts
for the different controlled substances involved in each indictment.
Although the identical charging statutes indicate one conspiracy, we must also look to the
underlying offenses. Sinito, 723 F.2d at 1258. In Sinito, we examined two indictments brought
under 18 U.S.C. § 1962(c)&(d), the first involving an enterprise for illegal loansharking and the
second involving an enterprise organized to commit murder and violence to facilitate narcotics
trafficking. Id. We held that, even though the indictments charged violations of the same statute,
the underlying offenses were so different that the statutory offenses charged factor weighed in
favor of finding multiple conspiracies. Id. Unlike in Sinito, the underlying offenses in both the

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California and Michigan indictments were conspiracy to traffic in controlled substances—
multiple types of drugs, including cocaine, in California, and only cocaine in Michigan.4
Even if we accepted the district court’s conclusion that the statutory offenses were not the
same because “clearly different facts [] need to be proven in order to establish conspiracy to
distribute one drug, as opposed to a conspiracy to distribute several drugs,” this factor still
weighs in favor of one conspiracy because the California indictment subsumes the Michigan
indictment. In California, the government had to prove its case as to multiple controlled
substances, including cocaine, while in Michigan it only had to prove its case as to cocaine.
Therefore, the district court’s factual findings were clearly erroneous because there are
not, as the court found, “clearly different facts that need to be proven” between the California
and Michigan’s indictments. Hilliard, 157 F.3d at 447. Both indictments require proof of the
same elements, using the same facts, and only varying as to the type and amount of controlled
substance involved.
Second, the overt acts charged by the government factor weighs in favor of finding a
single conspiracy. We examine “whether the particular acts alleged in the indictment are part of a
larger, unified conspiracy for which the defendant has already been [convicted].” Sinito, 723

4

Corral’s plea agreement in Michigan lends further support to our finding that the underlying
offenses are the same and thus that the statutory offenses charged factor weighs in favor of
finding a single conspiracy. In his plea agreement, the government listed the elements it would
have to prove at trial for conspiracy to distribute a controlled substance:
i. The defendant conspired with another or others;
ii. to knowingly and intentionally possess with intent to distribute and to distribute a
controlled substance, specifically, cocaine;
iii. at the time of that possession and distribution, defendant knew that he and or others
possessed a controlled substance; and
iv. the defendant, aided and abetted by others, intended to distribute the cocaine.
(emphasis added). The elements of the offense apply generally to all controlled substances listed
in § 841(b)(1)(A), not just to cocaine, as made clear by the government’s phrasing of the
elements and by the structure of § 841 itself.
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F.2d at 1258.5 For example, in Sinito, we held that the overt acts were not part of a larger, unified
conspiracy because one indictment charged murder, gambling, drug trafficking and obstruction
of justice, while the other charged loansharking. Id.
A unified conspiracy requires “assent of its members to contribute to a common
enterprise.” United States v. Kelley, 849 F.2d 999, 1003 (6th Cir. 1988). “Seemingly independent
transactions may be revealed as parts of a single conspiracy by their place in a pattern of
regularized activity involving a significant continuity of membership.” Id. (internal quotation
marks and citation omitted). Evidence of the “unity essential to a conspiracy,” id., can be found
in the common goal of the conspirators and the purpose served by the co-conspirators’ activities.
See United States v. Maddox, 944 F.2d 1223, 1232 (6th Cir. 1991).
The acts alleged in both indictments all contributed to a single, unified conspiracy to
distribute a controlled substance. According to the California indictment, Corral sold cocaine to
at least one co-defendant and Corral indicated that he received his cocaine from suppliers.
According to the Michigan indictment, which did not specify Corral’s individual involvement,
Corral and his co-defendants participated in activities related to cocaine distribution, including
brokering cocaine transactions, in multiple locations across the country, such as California.
These overt acts are not only the same, but also contribute to a unified conspiracy. Unlike in
Sinito, where the overt acts between indictments were not similar or even arguably related, the
overt acts in these indictments show a common goal and purpose: to conspire to distribute a
controlled substance.

This is the sound approach because “simply comparing different overt acts in the indictment
does not accurately determine the issue” and “[s]uch an inquiry would . . . ‘permit the
government arbitrarily to split unitary . . . conspiracies and to initiate as many prosecutions.’”
Sinito, 723 F.2d at 1258 (quoting United States v. Ruigomez, 576 F.2d 1149, 1151 (5th Cir.
1978)).
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Therefore, the district court’s factual findings were clearly erroneous because the overt
acts were not, as the court asserted, “clearly different.” Hilliard, 157 F.3d at 447. The overt acts
charged in Michigan and California were all related to Corral’s purpose of distributing a
controlled substance, which was the common goal of his co-conspirators.
Third, the time factor arguably weighs in favor of finding a single conspiracy, or is at
least indicative of the need for an evidentiary hearing. Overlap in time periods alleged is not
necessarily indicative of one conspiracy because time frames and personnel can overlap in
separate criminal agreements. Sinito, 723 F.2d at 1257. However, “a single agreement to commit
an offense does not become several conspiracies [just] because it continues over a period of
time.” Braverman v. United States, 317 U.S. 49, 52 (1942).
The California indictment charged that Corral was involved in the conspiracy starting on
an unknown date through November 6, 2007, and alleged overt acts starting in February 2007.
The Michigan indictment more specifically charged that the defendants were involved in the
BMF conspiracy from around 1990 to 2008. The indictments, then, overlap in time by at least
nine months. Therefore, the district court’s findings were clearly erroneous because it summarily
held that the “indictments charged offenses that spanned different times” and wholly ignored the
nine-month overlap. Hilliard, 157 F.3d at 447.
Although we have previously held that an overlap in time of ten months was not
indicative of a single conspiracy, see Sinito, 723 F.2d at 1257, on this record we cannot
conclusively determine that the overlap was limited to the known nine-month window. The
government in California failed to indicate when the conspiracy began. “[B]ecause the
government typically has better access to evidence,” In re Grand Jury Proceedings, 797 F.2d at

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1380, an evidentiary hearing would have presumably illuminated when the California conspiracy
started and confirmed the extent of the temporal overlap between the two indictments.
Therefore, because several factors are the same between the Michigan and California
conspiracies, one could reasonably conclude that the conspiracies are one and the same. See
Sinito, 723 F.2d at 1256-57. Corral has advanced a prima facie showing that a single conspiracy
exists, and the government has failed to show by a preponderance of the evidence that the
Michigan and California conspiracies are distinct. In re Grand Jury Proceedings, 797 F.2d at
1380.
The district court abused its discretion in denying Corral’s request for an evidentiary
hearing. Witham, 355 F.3d at 504. As detailed above, the motions, files, and record do not
conclusively show that Corral is entitled to no relief; therefore, we reverse the district court’s
denial of Corral’s request and hold that the district court was required to hold an evidentiary
hearing. 28 U.S.C. § 2255(b); Arredondo, 178 F.3d at 782. Consequently, we remand for an
evidentiary hearing on Corral’s double jeopardy claim.
C. Ineffective Assistance of Counsel for Failure to Move to Dismiss
Because we are remanding Corral’s double jeopardy claim for an evidentiary hearing, we
need not reach Corral’s claim that his trial counsel was ineffective for failing to move to dismiss
the count for conspiracy to distribute cocaine on double jeopardy grounds. We direct the district
court to consider the ineffective assistance of counsel claim if, on remand, the court finds that
double jeopardy attached to the Michigan indictment.
CONCLUSION
For the reasons stated above, we AFFIRM the district court’s holdings that Corral
procedurally defaulted his claims of defective sentencing and prosecutorial vindictiveness, as

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Case: 12-1897

Document: 61-2

Filed: 04/09/2014

Page: 17

Case No. 12-1897, Corral v. United States
well as its finding that Corral was not denied effective assistance of counsel when his trial
counsel failed to file a motion for change of venue. We REVERSE the district court’s decision
not to hold an evidentiary hearing, finding that the evidence does not conclusively show that
Corral is entitled to no relief, and REMAND for an evidentiary hearing as to his double jeopardy
claim and the corresponding ineffective assistance of counsel claim.

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