United States v. Lee Wesley ( 2019 )

NOT RECOMMENDED FOR PUBLICATION
File Name: 19a0322n.06
No. 17-2005
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT FILED
Jun 25, 2019
UNITED STATES OF AMERICA, ) DEBORAH S. HUNT, Clerk
)
Plaintiff-Appellee, )
)
ON APPEAL FROM THE
v. )
UNITED STATES DISTRICT
)
COURT FOR THE EASTERN
LEE EARNEST WESLEY, )
DISTRICT OF MICHIGAN
)
Defendant-Appellant. )
)
BEFORE: BATCHELDER, GRIFFIN, and DONALD, Circuit Judges.
GRIFFIN, Circuit Judge.
Defendant Lee Wesley claims the district court deprived him of due process of law as
guaranteed by the Fifth Amendment when it allegedly denied him the opportunity to discover
whether his jury venire complied with the Sixth Amendment and the Jury Selection and Service
Act of 1968, 28 U.S.C. § 1861 et seq. We reject this contention and affirm.
I.
Wesley was indicted on several drug-related charges. During jury selection, his attorney
objected to the jury venire’s composition because it lacked any individual from Detroit and
apparently only two of its members were African American. The district court denied the
objection, and on November 4, 2016, the jury convicted Wesley on all counts.
Over two months later, in January 2017, Wesley moved for a new trial. He asserted the
jury venire’s composition violated his Sixth Amendment right to an impartial jury and the Jury
No. 17-2005, United States v. Wesley
Selection and Service Act of 1968 (JSSA), 28 U.S.C. § 1861 et seq., and requested both the release
of “all information relevant” to his claims and an evidentiary hearing. The district court denied
the motion on two independent grounds: (1) it was untimely under Federal Rule of Criminal
Procedure 33(b)(2) because it was filed well beyond fourteen days after the jury’s verdict as
required by that rule and Wesley did not demonstrate “excusable neglect” so as to extend this
deadline under Federal Rule of Criminal Procedure 45(b)(1)(B)’s good-cause provision; and (2) it
lacked merit.
Undeterred, and on the eve of sentencing in August 2017, Wesley renewed his motion for
a new trial. The main basis for that motion—along with its request for extensive discovery—was
an unverified assertion that an administrator for the United States District Court for the Eastern
District of Michigan’s jury department told Wesley’s attorney that “the records and papers
concerning the 2013 and 2015 Master Jury Wheels,” see 28 U.S.C. § 1863, were “not really”
“available to the public.” In a comprehensive opinion, the district court again denied the motion.
It reiterated that Wesley could not show excusable neglect, found a lack of due diligence in
attempting to introduce this “new evidence,” and concluded that even if the motion was timely, it
again failed on the merits.
II.
On appeal, Wesley does not contend the district court erred in finding his motions for a
new trial untimely and meritless. Instead, the sole claim raised in this appeal is one he did not
present to the district court—that he was deprived of due process of law as guaranteed by the Fifth
Amendment “when he was denied an opportunity to determine whether the jury venire in his trial
was drawn from a fair cross-section of the community.” Defendant supports this contention by
arguing: (a) the JSSA’s timeframe for when a criminal defendant must initiate a challenge to his
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No. 17-2005, United States v. Wesley
jury venire is unconstitutionally vague; (b) the United States District Court for the Eastern District
of Michigan does not comply with the JSSA; and (c) the district court denied his discovery
requests. Because Wesley failed to raise this issue below, we review for plain error. United States
v. Yancy, 725 F.3d 596, 600 (6th Cir. 2013). This demanding standard requires he establish
(1) error, (2) that is plain, (3) that affects his substantial rights, and (4) that seriously affects the
fairness, integrity, or public reputation of the judicial proceedings. Id. at 601. He cannot.
A “court of appeals cannot correct an error . . . unless the error is clear under current law.”
United States v. Olano, 507 U.S. 725, 734 (1993). A lack of precedent “preclude[s a] finding of
plain error.” United States v. Al-Maliki, 787 F.3d 784, 794 (6th Cir. 2015). Here, there is no
binding authority holding that a district court deprives a criminal defendant of due process by
denying him “an opportunity to determine whether the jury venire in his trial was drawn from a
fair cross-section of the community.”
And even if there were, there is a difference between having an opportunity to discover
constitutional and statutory misconduct and failing to take advantage of that opportunity. Cf. Lewis
v. Whirlpool Corp., 630 F.3d 484, 490 (6th Cir. 2011). This is a case about the latter. Defendant’s
attorneys initially objected to the composition of the jury venire but failed to preserve that
challenge for JSSA purposes by following the procedures in the Act. See 28 U.S.C. § 1867(a).
His attorneys also filed two untimely motions for a new trial under Federal Rule of Criminal
Procedure 33. And he advances no clear argument articulating why the district court erred in
refusing to excuse his untimeliness. To be sure, defendant hints at his disagreement with the
district court’s finding that neither excusable neglect nor newly discovered evidence were
sufficient to set aside the untimely nature of his motions (as well as the district court’s denial of
his requests for discovery). But he has forfeited these challenges by failing to include them in his
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No. 17-2005, United States v. Wesley
statement of issues. See, e.g., United States v. Calvetti, 836 F.3d 654, 664 (6th Cir. 2016).
Moreover, failing to “advance[] any sort of argument for the reversal of the district court[],” Geboy
v. Brigano, 489 F.3d 752, 767 (6th Cir. 2007), or “cogent argument” that the district court got it
wrong “constitutes abandonment.” Burley v. Gagacki, 834 F.3d 606, 618 (6th Cir. 2016).
Finally, to the extent he claimed below (and here) that his attorneys provided him
ineffective assistance of counsel by failing to appropriately discharge their duties regarding jury
venire composition, he may raise those claims in a collateral proceeding. See 28 U.S.C. § 2255;
United States v. Levenderis, 806 F.3d 390, 401–02 (6th Cir. 2015).
III.
For these reasons, we affirm the judgment of the district court.
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