United States v. McCoy

UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

UNITED STATES OF AMERICA,
Plaintiff-Appellee,

v. No. 99-6096

TIMOTHY W. MCCOY,
Defendant-Appellant.

Appeal from the United States District Court
for the Northern District of West Virginia, at Clarksburg.
Irene M. Keeley, District Judge.
(CR-92-189, CA-97-85-1)

Submitted: July 20, 1999

Decided: August 16, 1999

Before WIDENER, ERVIN, and WILKINS, Circuit Judges.

_________________________________________________________________

Dismissed by unpublished per curiam opinion.

_________________________________________________________________

COUNSEL

Timothy W. McCoy, Appellant Pro Se. Samuel Gerald Nazzaro, Jr.,
Assistant United States Attorney, Wheeling, West Virginia, for
Appellee.

_________________________________________________________________

Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).

_________________________________________________________________
OPINION

PER CURIAM:

Timothy W. McCoy appeals the dismissal of his 28 U.S.C.A.
§ 2255 (West Supp. 1999) action. McCoy was convicted by a jury of
operating a continuing criminal enterprise ("CCE") and conspiracy,
involving the manufacture and distribution of marijuana, as well as
various other crimes, including money laundering, tax evasion, and
suborning perjury. On appeal, we vacated the conspiracy conviction
as a lesser-included offense of operating a CCE and affirmed the
remaining convictions. See United States v. Heater, 63 F.3d 311, 332
(4th Cir. 1995). McCoy then filed this § 2255 motion, arguing a pleth-
ora of grounds. The district court denied the motion, without a hear-
ing and without requesting a response from the Government.

I.

McCoy, his girlfriend Connie Heater, and other individuals were
involved in the cultivation, possession, and distribution of marijuana
in West Virginia. McCoy's operation was substantial, and the evi-
dence showed that it involved nearly six million dollars worth of mar-
ijuana. McCoy supervised at least five workers who constructed
irrigation systems, painted fences, harvested the crops, laundered drug
money, and distributed marijuana. See Heater, 63 F.3d at 315-16.

McCoy was tried along with Heater, his father Richard McCoy,
and other indicted co-conspirators. Other co-conspirators testified
under grants of immunity or plea agreements with the Government.

McCoy and his father Richard retained, respectively, J. Michael
Benninger and Clark B. Frame, of the law firm of Wilson, Frame &
Metheney. The court conducted a Fed. R. Crim. P. 44(c) hearing prior
to trial, presenting to both defendants the potential for a conflict of
interest. Both defendants signed waivers. After the case went to the
jury, Benninger requested permission to leave the courthouse and
have Frame represent his client during deliberations. With the consent
of both defendants, the court agreed.1
_________________________________________________________________
1 The McCoys' consent to dual representation during deliberations is
contained in the record. However, although McCoy and the district court

2
The jury consisted of eleven women and one man, Matthew Smith.
During trial, Smith approached several of the defendants. According
to an affidavit filed by Harvey John, a co-defendant, Smith first
approached John, and they briefly discussed mutual acquaintances.
Smith again approached John and attempted to talk to him, but John
told him that the discussion was improper and promptly left. Accord-
ing to John, Benninger witnessed the second exchange and inquired
as to whether Smith had tried to talk to John. John answered "he tryed
[sic]." After closing arguments, Smith met with Tim McCoy, Heater,
and John in a car. They smoked marijuana, and Smith allegedly told
Tim and the others that Richard McCoy would be acquitted. Smith
also indicated that he felt all the defendants were not guilty.2

McCoy alleges that he immediately informed Frame (as Benninger
was not present) that Richard McCoy would be found not guilty.
McCoy then allegedly began to explain to Frame that his information
was based on juror contact, but Frame stated, "Don't tell me, I don't
want to hear it."

During deliberations, the jury sent out an unsigned note, stating
that one hold-out juror was convinced of the Defendants' innocence.
After Frame objected to the rereading of any portions of the jury
charge, the court instructed the jury to continue deliberating. Subse-
quently, Smith sent out a signed note stating that he could not attend
the next day, due to a scheduled job interview. The court did not
respond to this note. Several hours later, the jury returned their ver-
dicts, which inter alia found Tim McCoy guilty on all charges and
acquitted Richard McCoy.

After the verdicts were returned, Benninger filed a motion for a
new trial based on juror misconduct. However, he did not support his
motion with factual specifics or affidavits, asserting that he was con-
cerned about McCoy incriminating himself. Benninger stated at the
_________________________________________________________________

agree that a second Rule 44(c) hearing was held, the record does not con-
tain a transcript of any discussion between counsel and the court regard-
ing this issue.
2 Smith has pled guilty to obstruction of justice. Tim, Heater, and John
all testified at his grand jury proceeding.

3
hearing that he was attempting to negotiate some sort of an immunity
agreement for McCoy, but the Government had not yet agreed. The
court denied the motion for lack of a factual basis. On appeal, Ben-
ninger again raised this issue. At the time, only John had testified
before Smith's grand jury, and Benninger related that information to
this court, but still presented no affidavits in support of his factual
allegations. We denied the appeal on this issue for lack of factual sup-
port but stated that a collateral attack might still be possible. See
Heater, 63 F.3d at 321-22.

II.

McCoy raises several claims attacking the performance of Frame
during jury deliberations. In order to succeed on a claim of ineffective
assistance of counsel, McCoy must show: (1) that his counsel's per-
formance fell below an objective standard of reasonableness and (2)
that counsel's deficient performance was prejudicial. See Strickland
v. Washington, 466 U.S. 668, 687 (1984). Under the first prong of
Strickland, McCoy must demonstrate that counsel's performance fell
below an objective standard of reasonableness under"prevailing pro-
fessional norms." Id. at 688. To satisfy the second prong of
Strickland, McCoy must demonstrate that there is a "reasonable prob-
ability that, but for counsel's unprofessional errors, the result of the
proceeding would have been different." Id. at 694. However, this
court cannot grant relief solely because the outcome would have been
different absent counsel's deficient performance. See Lockhart v.
Fretwell, 506 U.S. 364, 369-70 (1993). Instead, this court can only
grant relief under the second prong of Strickland if the "result of the
proceeding was fundamentally unfair or unreliable." Id. at 369.

Assuming McCoy has satisfied the first prong of Strickland by
alleging that Frame knew of the juror misconduct, and failed to dis-
close it, we find that McCoy cannot satisfy the second prong of
Strickland. He was a party to the misconduct, and he was present in
court when the jury was instructed not to discuss the case with any-
one. Furthermore, any bias created by the presence of Smith on the
jury would have been in favor of McCoy. In addition, McCoy could
have informed the court of the misconduct, even if Frame declined to
do so. We therefore find the verdict was neither unfair nor unreliable.

4
McCoy next contends that Frame failed to object to an off-the-
record discussion concerning the fact that the jury was split eleven to
one for conviction. Because the discussion was off the record, there
is not much information available about what occurred. McCoy
attaches to his informal brief a letter from Benninger relating Heater's
trial attorney's recollections of this off-the-record discussion.

According to this letter, at approximately 11:20 a.m., the court con-
ducted a discussion regarding the jury note that indicated one juror
believed that all defendants were not guilty. The judge then recom-
mended rereading part of the jury charge. Frame objected, stating that
it would be non-productive and coercive. The judge then decided not
to reread any particular portion of the charge. The jury was not
brought back into open court, but instead the judge prepared a written
note which read as follows:

You have been instructed as to your deliberations, you have
a copy of the Charge, consider it as a whole, including
Pages 1-14 and Pages 61-63 for a response to your question.3

According to McCoy, after the judge had responded to the jury's
question, Smith sent out a signed note stating that he was unavailable
the next day. This note was apparently never answered. The jury
returned their verdicts at approximately 7:00 that evening.

The district court states the facts somewhat differently in its opin-
ion. The judge recalls receiving the note disclosing the numerical
division and then telling the jury they should keep deliberating. Sub-
sequently, Smith sent out a note stating that he could not attend the
next day. Over Frame's objection, the court then allegedly gave an
Allen charge, pursuant to Allen v. United States, 164 U.S. 492 (1896),
_________________________________________________________________
3 This is not a precise quote but merely based on Heater's lawyer's rec-
ollections. The written note was not made part of the record. In addition,
although McCoy and the district court quote from portions of the jury
charge, the charge was never recorded, transcribed, or made part of the
record. It is possible that McCoy and the district court have saved copies
of the charge from the trial, but neither has submitted these instructions.
In any event, we do not know what is contained on pages 1-14 or 61-63.

5
in the modified form stated in United States v. Stollings, 501 F.2d 954
(4th Cir. 1974).4

McCoy has not alleged what prejudice he suffered when his attor-
ney failed to object to the discussion regarding the jury split. While
for purposes of appellate and collateral review, it would certainly
have been simpler if this discussion were on the record, McCoy has
failed to show how a transcript of the proceeding would have resulted
in a different outcome. Even assuming the facts are as McCoy pres-
ents them, Frame objected to a rereading of the charge to the jury, his
objection was sustained, and the court told the jury to consider the
charge as a whole and to keep deliberating. While it would be error
for the judge to inquire into the numerical division of the jury, see
Brasfield v. United States, 272 U.S. 448, 450 (1926), here the judge
was inadvertently told about the split and then discussed the ramifica-
tions with counsel. Because McCoy has failed to show any prejudice
from the failure to object to this discussion being off the record, this
claim fails.

McCoy asserts that Frame erred by failing to move for a mistrial
after the district court's coercive Allen charge.5 As discussed above,
however, there is very little evidence as to what the judge's charge
contained. According to Heater's attorney's notes, there was no Allen
charge, but merely a note to the jury telling them essentially to keep
deliberating. According to the district court, the Allen charge was
noncoercive and carefully instructed the jury that both the majority
and minority should reexamine their positions in light of the other
side's views, but admonished the jury not to surrender well-founded
convictions. McCoy asserts that any charge was improper based on
the judge's knowledge of the jury split and the fact that the jury
returned quickly thereafter.
_________________________________________________________________

4 There is no record of an Allen charge being made to the jury.
5 Generally, an Allen charge informs the jury that a new trial would be
expensive for both sides, there is no reason to believe that another jury
would do a better job, that it is important that a unanimous verdict be
reached, and that the jurors should consider the opinions of the jurors on
the other side. See United States v. Burgos, 55 F.3d 933, 936 (4th Cir.
1995).

6
The judge's knowledge of the jury split is just one factor that could
show a coercive charge. The fact that the judge knew of the jury split,
standing alone, does not make the Allen charge coercive. See United
States v. Lorenzo, 43 F.3d 1303, 1307 (9th Cir. 1995) (upholding
Allen charge to 11-1 deadlocked jury). In addition, McCoy mistakenly
alleges that the jury did not deliberate following the charge. The
record reveals that the jury did not return with the verdicts until nearly
eight hours after the court instructed them to keep deliberating. Thus,
McCoy has failed to show that Frame erred in deciding not to request
a mistrial following the Allen charge.

McCoy next asserts that Frame should have requested polling of
the jury regarding the Allen charge. In addition, because several of his
co-defendants were acquitted, McCoy contends that the jury should
have been questioned regarding the basis for his conspiracy and CCE
convictions.

In fact, the jurors were polled and asked if they agreed with the
verdict. McCoy presents no authority for the conclusion that he would
have been entitled to any further questioning if Frame had so moved.
While the trial court has substantial discretion to decide how the jury
should be polled, any motion by Frame for further inquiries would
likely have been denied. See United States v. Carter, 772 F.2d 66, 68
(4th Cir. 1985) (best practice is for court or clerk of court to ask each
juror individually whether verdict announced is his verdict); see also
Fed. R. Evid. 606(b) (juror may not testify as to the jury's delibera-
tions or as to the effect of anything on the juror's mind or emotions).
Thus, McCoy is unable to show either attorney error or prejudice on
this claim.

McCoy next argues that, in representing both him and his father,
Frame labored under an impermissible conflict of interest during jury
deliberations. According to McCoy, because Frame knew that Rich-
ard McCoy would be acquitted, he did not move for a mistrial or
object to the Allen charge, even though these actions might have ben-
efitted Tim.

In general, to prevail on a claim of conflict of interest, a petitioner
must present convincing evidence of an actual conflict and a resulting
adverse effect on performance. See Beaver v. Thompson, 93 F.3d

7
1186, 1192 (4th Cir. 1996). First, McCoy cannot show an actual con-
flict. If Frame were aware that Richard McCoy would be acquitted,
he was also aware that Smith believed Tim to be innocent of the
charges. Therefore, it would be reasonable to avoid a mistrial so that
Smith, who had declared his allegiance to the defense, would be on
the jury. Second, even if Frame operated under a conflict of interest,
there was no adverse effect. As discussed above, McCoy cannot show
prejudice from Frame's failure to object to the off-the-record discus-
sion, request a mistrial following the Allen charge, or request further
polling of the jury. McCoy presents no other actions that Frame
would have taken had he not had a conflict. Accordingly, because
McCoy cannot show adverse effect, this claim must fail.

III.

McCoy also attacks the trial court's decision regarding the Allen
charge and disclosure of the jury split. As discussed above, there was
no error in the disclosure of the jury split to the attorneys and parties.
While it is unclear what the Allen charge contained or even if it
existed, McCoy has not specifically alleged any improper language.
In any event, as outlined above, McCoy suffered no harm from the
court's actions, and thus, he is not entitled to relief.

IV.

McCoy twice waived his right to conflict-free representation: once,
pretrial, and then again before jury deliberations. A defendant may
waive his right to assistance of counsel unhindered by conflicts of
interest. See Holloway v. Arkansas, 435 U.S. 475, 483 n.5 (1978). The
district court found that the requirements of Rule 44(c) were met and
the ensuing waiver was valid.

McCoy contends, however, that his second waiver was unknowing
and involuntary. Yet, he presents no support for this statement.
McCoy does not assert that anything was not disclosed to him, and
he does not allege precisely what he supposedly did not understand.
In fact, the only undisclosed conflict that McCoy points to is the alle-
gation that Frame's knowledge of Richard McCoy's likely acquittal
affected his own representation. However, the court had no knowl-
edge of jury impropriety until after the trial had ended and, therefore,

8
could not have so informed McCoy. Further, as discussed above,
McCoy suffered no harm from the dual representation.

V.

McCoy also attacks many actions by Benninger under the umbrella
of ineffective assistance of counsel. First, McCoy asserts that Ben-
ninger knew of the improper juror contact, and therefore, when Ben-
ninger returned to the courthouse, he should have investigated what
had occurred and corrected Frame's alleged mistakes. McCoy's basis
for alleging that Benninger knew of Smith's contact with the Defen-
dants is John's affidavit. As outlined above, John alleged that Ben-
ninger saw him with Smith, Benninger asked if Smith tried to talk to
him, and John responded, "he tryed [sic]."

There is no allegation that Benninger knew either that Smith had
discussed jury deliberations with the Defendants or that Smith had
smoked marijuana with them. While Benninger should have informed
the court that Smith tried to talk to John, the court likely would have
just examined Smith and reinstructed the jury. Further, for the reasons
discussed above, even if the court took further action, such as replac-
ing Smith or declaring a mistrial, McCoy still could not show preju-
dice under Strickland, because the result of his trial was neither unfair
nor unreliable.

Because, at most, Benninger only knew that Smith had tried to talk
to John, there was no basis for him to take any further action once he
returned to the courtroom regarding the juror notes or the Allen
charge. There were simply no grounds for Benninger to conclude that
Frame or the court had erred.

McCoy next asserts that Benninger improperly failed to file a brief
or an affidavit in support of the factual allegations of juror miscon-
duct at either the post-trial motion stage or on appeal. However, Ben-
ninger was understandably concerned about McCoy implicating
himself. He attempted to secure immunity for McCoy, but when that
attempt failed, he determined that it would be too dangerous for
McCoy to file an affidavit. We find that such a strategy was reason-
able.

9
On appeal, Benninger informed the Court that John had testified
before Smith's grand jury. McCoy argues that Benninger could and
should have obtained the transcripts of these proceedings. However,
grand jury transcripts are generally secret and cannot be disclosed
absent a court order. See Fed. R. Crim. P. 6(e). Therefore, failure to
obtain these transcripts was not error.

McCoy asserts that Benninger should have objected to many por-
tions of the Government's closing argument. Most significantly, the
Government stated in its closing argument that McCoy sold marijuana
around schools. This evidence was allegedly testified to by Randy
Foster, Bob Bailey, Jerry Burkhammer, and Bobby Timms. However,
these witnesses testified that they bought marijuana from McCoy
while he was a high school student, but they never testified that they
bought the marijuana near a school. While the Government's state-
ment was incorrect, it was merely one sentence in an argument that
covers sixty-three pages of transcript. Based on the overwhelming
evidence against McCoy, we find that failure to object to this state-
ment did not prejudice his defense. We have carefully reviewed the
remainder of McCoy's arguments that Benninger erroneously failed
to object to the Government's closing argument, as well as the district
court's decision on these points, and we are in agreement with the dis-
trict court's reasoning, which we hereby adopt.

McCoy next contends that Benninger showed him plea offers by
the Government but never fully informed him about the advantages
of the pleas or the dangers of going to trial. McCoy contends that, had
he known all the implications, he would have pled guilty. Specifi-
cally, he states that he should have been told that he would be eligible
for an acceptance of responsibility reduction and told that he would
not have to testify against his girlfriend and father.

Professional standards require that counsel present a plea offer to
a defendant, outline its terms, give an opinion of probable outcomes,
advise on the pros and cons of the alternatives, and allow a defendant
to make the ultimate choice for accepting or rejecting a plea. See
Jones v. Murray, 947 F.2d 1106, 1110 (4th Cir. 1991). However, even
if Benninger failed to comply with Jones, McCoy must also show that
he would not have pled guilty absent Benninger's incompetence. See
Hill v. Lockhart, 474 U.S. 52, 59 (1985). This McCoy cannot do.

10
If McCoy had pled guilty, there is no certainty that he would have
been granted a reduction for acceptance of responsibility. At trial, he
denied selling or manufacturing marijuana, and the evidence showed
that he suborned perjury at the grand jury stage. If he had pled guilty
after his indictment, his grand jury actions would have made a reduc-
tion unlikely. Further, as part of a standard plea agreement, he would
likely have been debriefed by the Government and would not have
been able to shield his girlfriend and father. At the very least, by
refusing to give details about his business and co-conspirators, he
could ensure that he would not be entitled to an acceptance of respon-
sibility reduction. Because McCoy would not have been entitled to
the benefits he now says would have induced him to plead guilty, he
has not shown prejudice from his counsel's alleged failure to fully
inform him about the plea offers.

McCoy asserts that Benninger erred by failing to appeal on the
basis of prosecutorial misconduct during the closing argument and
alleged error in delivering the Allen charge. For the reasons discussed
above, McCoy cannot show that these claims would have been suc-
cessful on appeal. Counsel succeeded on appeal in obtaining a rever-
sal of McCoy's conspiracy conviction. We, therefore, find that
Benninger's appellate strategy was sound and not ineffective.

McCoy contends that much of the evidence at trial described a
buyer/seller relationship with the witnesses, rather than a continuing
criminal enterprise. However, he asserts that the jury instructions per-
mitted the jury to use the evidence of buyer/seller relationships to find
that McCoy was a manager or supervisor, for purposes of the CCE
charge. See 21 U.S.C. § 848(c) (1994). Therefore, McCoy contends
that Benninger should have requested an instruction that a mere
buyer/seller relationship was insufficient for purposes of § 848(c).

McCoy references two portions of the jury charge as erroneous,
because they allegedly permitted a CCE conviction to be based on
only a buyer/seller relationship. The first contested part stated that the
jury should consider the evidence that distinguishes a manager from
a mere underling. Examples given by the court of managerial duties
were negotiating large-scale purchases or sales of narcotics, making
arrangements for transportation, organizing money-laundering, and
instructing participants. The jury was then instructed that these factors

11
were not conclusive but could be used to think about the defendant's
role and his relationship to the other persons involved. The other con-
tested language defined the term "distribution."

The jury instructions, as quoted by McCoy, were not erroneous.
The jury was specifically instructed that they must find McCoy to be
a manager and that a manager was to be distinguished from a mere
underling in an enterprise. Furthermore, instructing participants in
relation to large-scale purchases and arranging the transportation and
laundering of the money does not describe a mere buyer-seller rela-
tionship. See United States v. Butler, 885 F.2d 195, 201 (4th Cir.
1989) (exercising control over the how, when and from whom ele-
ments of a drug deal is sufficient to show management role). Even if
the jury could have been somewhat confused by this language, they
were then instructed that these inquiries were not conclusive and that
they must still determine that McCoy was a manager viewing the evi-
dence as a whole. Finally, the definition of distribution was appar-
ently used in the context of defining the required underlying felony
violations of narcotics laws, which are a separate element of a CCE
charge. See 21 U.S.C. § 848(c)(1). Therefore, these instructions were
not in error.

McCoy was charged with a conspiracy dating from 1979 and a
CCE beginning in 1986. McCoy did not turn eighteen until sometime
in the early 1980's. On these facts, McCoy asserts that Benninger
erred by failing to move to suppress evidence of crimes preceding his
eighteenth birthday.

When a conspiracy begins before a defendant's eighteenth birth-
day, but continues beyond that date, evidence of pre-majority conduct
may not be used to provide the sole basis for a guilty verdict. How-
ever, such conduct may be relevant to proving defendant's knowledge
of the conspiracy and the conspiracy's purpose. See United States v.
Spoone, 741 F.2d 680, 687 (4th Cir. 1984). In Spoone, this court
approved the use of a limiting instruction regarding the pre-majority
conduct as a method of ensuring that the defendant was not convicted
solely on the basis of that conduct. See id.

In this case, there was no limiting instruction, and the Govern-
ment's argument and the jury instructions permitted pre-majority con-

12
duct to be considered for the purposes of determining guilt. However,
McCoy has failed to show prejudice from Benninger's failure to
object, because McCoy's conspiracy conviction has already been
vacated. While he still stands convicted of CCE, that charge only
related to post-1986 conduct, and therefore, while his pre-majority
conduct may have been considered in determining his knowledge and
plan, it could not have properly been used to determine the actual ele-
ments of CCE. Accordingly, McCoy has failed to satisfy the require-
ments of showing ineffective assistance.

McCoy contends that Benninger should have moved for acquittal
or to dismiss the indictment of counts based on pre-majority conduct.
While Benninger likely should have taken some action regarding
McCoy's pre-majority conduct, the issue is now moot as the conspir-
acy conviction has been vacated. McCoy presents no reason to
believe that the jury considered pre-majority conduct as evidence of
guilt on the CCE charge, and therefore, McCoy can show no preju-
dice from Benninger's failure to address this issue.

McCoy asserts that the evidence did not show a conspiracy before
the mid-1980's, and thus, Benninger should have requested an
instruction that pre-conspiracy conduct was barred by the statute of
limitations. Since McCoy was not charged with any substantive distri-
bution counts, it is unclear what benefit McCoy hoped to gain through
this instruction. In any event, as the conspiracy charge was dismissed,
any argument McCoy has with the proof on that charge is moot, and
he cannot show prejudice from Benninger's actions.

McCoy next contends that Benninger erred by failing to object to
misleading, contradictory and confusing portions of the jury charge.
We affirm the dismissal of these claims on the reasoning of the dis-
trict court.

Next, relying on 18 U.S.C. § 201(c)(2) (1994), McCoy contends
that Benninger should have moved to suppress the testimony of co-
conspirators who received immunity or recommended sentence reduc-
tions from the Government in exchange for their cooperation and tes-
timony. Every circuit that has addressed this issue has concluded that
Government promises of the kind offered in this case do not violate
§ 201. See United States v. Lowery, 166 F.3d 1119, 1122-23 (11th

13
Cir. 1999) (citing cases); United States v. Singleton, 165 F.3d 1297,
1302 (10th Cir. 1999) (en banc court reversing three judge panel),
cert. denied, ___ U.S. ___, 1999 WL 185874 (U.S. June 21, 1999)
(No. 98-8758). Especially considering that McCoy's trial predated the
recent explosion of § 201 analysis that followed the unprecedented
holding of the original Singleton decision, we find that Benninger's
performance in not objecting to these witnesses did not fall below
objective standards of reasonable conduct.

McCoy asserts that Benninger should have requested a special ver-
dict form in order to determine whether the jury improperly relied
upon pre-majority conduct, improperly merged the conspiracy and
CCE charges, or were confused regarding the requirements for a CCE
conviction. This argument is basically a retread of many of McCoy's
other arguments which have been addressed in detail above. Because
the jury instructions were not in error, there is no reason to believe
that the jury was laboring under any misconceptions. Thus, any
motion by Benninger for a special verdict form would likely have
been denied.6

VI.

McCoy next asserts that the Government committed prosecutorial
misconduct during the closing argument. To prevail on a claim of pro-
secutorial misconduct, a defendant must show that the remarks were
improper and that they prejudicially affected his substantial rights so
as to deprive him of a fair trial. See United States v. Mitchell, 1 F.3d
235, 240 (4th Cir. 1993). For the reasons discussed above regarding
ineffective assistance, we find that the few improper comments made
by the prosecutor were isolated and did not affect McCoy's right to
a fair trial.
_________________________________________________________________

6 The trial court noted post-trial that it was possible the jury convicted
of conspiracy based on the same exact acts as the CCE and that, in the
future, the court would use a special verdict form when a pre-existing
conspiracy merges into a CCE. However, since the conspiracy conviction
was vacated, any error has already been rectified.

14
VII.

Finally, McCoy contends that the cumulative effect of all of the
alleged errors entitles him to relief. As discussed above, in his multi-
tude of claims, McCoy has alleged several meritorious trial errors, i.e.
improper closing argument, failure to inform the court of juror mis-
conduct, failure to request a limiting instruction on pre-majority con-
duct, etc. However, our review of the record leaves us convinced that
he cannot show prejudice even from the combination of all of the
alleged errors.

Accordingly, we deny a certificate of appealability and dismiss the
appeal. We dispense with oral argument because the facts and legal
contentions are adequately presented in the materials before the court
and argument would not aid the decisional process.

DISMISSED

15