United States v. Orr

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 Defendant-
appellant 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)

1
The Honorable John A. Jarvey, United States District Judge for the Southern
District of Iowa.
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.

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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 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

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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

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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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, un-
Mirandized 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

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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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).

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 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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