United States v. Denver Lee ( 2020 )

NOT RECOMMENDED FOR PUBLICATION
File Name: 20a0621n.06
No. 19-2054
UNITED STATES COURT OF APPEALS FILED
FOR THE SIXTH CIRCUIT Nov 03, 2020
DEBORAH S. HUNT, Clerk
UNITED STATES OF AMERICA, )
)
Plaintiff-Appellee, )
) ON APPEAL FROM THE
v. ) UNITED STATES DISTRICT
) COURT FOR THE EASTERN
DENVER LEE, ) DISTRICT OF MICHIGAN
)
Defendant-Appellant.
)
BEFORE: BATCHELDER, STRANCH, and MURPHY, Circuit Judges.
ALICE M. BATCHELDER, Circuit Judge. Denver Lee, charged with being a felon in
possession of a firearm, agreed to stipulate that he was a felon and knew of his status so that the
government could not introduce evidence of his prior convictions. However, at trial, Lee took the
stand in his own defense and made what the district court found to be “an allegedly false statement”
about his previous possession of firearms. The court thus held that Lee “opened the door” to
impeachment evidence and permitted the government to introduce evidence of Lee’s 2005
conviction of being a felon in possession of a firearm. Lee appeals that evidentiary ruling. He
also raises on appeal several Rehaif-related claims and the district court’s decision to not hold an
evidentiary hearing on his ineffective-assistance-of-counsel (“IAC”) claim. For the following
reasons, we AFFIRM the judgment of the district court.
Case No. 19-2054, United States v. Lee
I.
In February 2018, four Detroit police officers on patrol observed two men, one of whom
was Lee, standing between two cars parked in the middle of the street. One of the officers shined
the cruiser’s spotlight on the men. With the light on him, Lee nervously grabbed the front center
pocket of his sweatshirt and quickly walked away. The officers approached Lee and noticed a
heavy bulge in his sweatshirt pocket. One of the officers frisked Lee and discovered a loaded
firearm (registered to Lena Safadi, described by Lee as his assistant). Another officer then
handcuffed Lee. Two other officers witnessed the entire encounter, and body cams worn by two
of the officers captured much of the incident.
A federal grand jury indicted Lee for being a felon in possession of a firearm, in violation
of 18 U.S.C. §§ 922(g)(1), 924(e). The trial was completed before the Supreme Court decided
Rehaif v. United States, 139 S. Ct. 2191 (2019), in which it held that to convict a defendant under
18 U.S.C. § 922(g) for being a felon in possession of a firearm, the government must prove beyond
a reasonable doubt that the defendant knew of his prohibited status. Id. at 2200 (“We conclude
that in a prosecution under 18 U.S.C. § 922(g) and § 924(a)(2), the Government must prove both
that the defendant knew he possessed a firearm and that he knew he belonged to the relevant
category of persons barred from possessing a firearm.”). Because they predated Rehaif, neither
the indictment nor the jury instructions included the knowledge-of-status element. Lee did not
object to either the indictment or to the jury instructions at the time.
Lee stipulated at trial that prior to his arrest, he “had been convicted of a felony, a crime
punishable by more than one year in prison, knew that he had been convicted of a felony, and had
not had his conviction expunged or his rights restored.” The government read that stipulation to
the jury during the trial and the district court repeated it when instructing the jury.
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Before Lee testified in his defense, the government notified Lee and the court that if Lee
did testify, it intended to impeach him under Federal Rule of Evidence (“FRE”) 609(a) with three
of his prior convictions: two convictions for possession with intent to distribute a controlled
substance and one conviction—in 2005—for being a felon in possession of a firearm. Initially,
the court permitted the government to use only the two controlled-substance convictions because
the court was concerned that the 2005 firearm conviction posed a “danger that the jury would
consider the evidence as propensity evidence or character evidence, which would be an improper
purpose.”
Lee then took the stand. Under direct questioning, he testified that: “Lena [Lee’s assistant]
know I don’t want her to have them guns around me. I don’t want no guns. She know not to bring
no guns around me. . . . She knows I don’t have guns around me. I don’t do nothing, bro. I don’t
have nothing around me, because I’m always the hit.” After these statements, the government
sought permission from the court to introduce Lee’s 2005 firearm conviction in order to impeach
his testimony that he does not “have guns around [him].” The court permitted the firearm
conviction to be introduced, though it noted that its probative value fell “more in the area of Rule
608 than Rule 609 now, because he has made a prior -- he has made an allegedly false statement.”
Lee’s counsel objected immediately. The government questioned Lee about his 2005 firearm
conviction, which Lee admitted. The government then asked Lee why he had just “testified on
direct that [he doesn’t] like to be around firearms.” Lee responded that he made that statement
“Because of 2005. That’s why I don’t like to be around guns.”
After the defense rested, the court instructed the jury that the evidence about Lee’s prior
convictions, including the firearm conviction, was for impeachment purposes only, that the
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evidence could not be used “for any other purpose,” and that it was “not evidence that he is guilty
of the crime that he is on trial for now.” The jury returned a guilty verdict.
Lee moved for a judgment of acquittal and for a new trial, which the district court denied.
A month later, Lee hired new counsel. The court permitted Lee to file a second motion for a new
trial based on IAC. The court held a hearing on that motion. But upon finding that the record was
not fully developed and that under Sixth Circuit precedent “the question of ineffective assistance
of counsel ought to be raised on collateral review,” the court denied the motion (though the court
noted that Lee could later raise the issue in a 28 U.S.C. § 2255 motion). The court sentenced Lee
to 180 months, the mandatory minimum under 18 U.S.C. § 924(e), and below the Guidelines range
of 210 to 262 months. Lee timely appealed.
II.
We first address Lee’s claim that the district court erred by permitting the government to
introduce evidence of his 2005 conviction for being a felon in possession of a firearm. “We review
evidentiary rulings for an abuse of discretion.” United States v. Chavez, 951 F.3d 349, 357-58 (6th
Cir. 2020). This means that we ask “whether the district court (1) misunderstood the law (here,
the Federal Rules of Evidence), (2) relied on clearly erroneous factual findings, or (3) made a clear
error of judgment.” Id. at 358. And “even if the district court abused its discretion, we may not
grant a new trial if the record gives us a ‘fair assurance’ that the verdict wasn’t ‘substantially
swayed’ by the evidentiary error.” Id. (quoting Kotteakos v. United States, 328 U.S. 750, 765
(1946)).
At trial, to prevent the government from introducing evidence of his prior convictions, Lee
stipulated that he was a felon and knew of his status as such. See Old Chief v. United States,
519 U.S. 172, 191–92 (1997). But the district court found that Lee “opened the door” to evidence
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attacking his character for truthfulness when he testified that “I don’t have guns around me.” The
government then introduced evidence of Lee’s prior felon-in-possession conviction in order to
impeach his testimony about not being around guns.
Lee argues that because his attorney’s line of questioning was focused exclusively on
February 15, 2018 (the night of the incident in question), his statements did not open the door to
impeachment evidence. Lee first claims that he “was clearly speaking as to what happened that
day—not his entire lifetime,” and that the government misconstrues these statements as if Lee had
stated “he’s never been around guns at all.” Lee also argues that the court should understand his
testimony that “Because of [my] 2005 [conviction]. That’s why I don’t like to be around guns”
meant “that he did not like being around guns in 2018 since his 2005 conviction.”
But the district court could reasonably interpret his ambiguous testimony more broadly
than his counsel interprets his testimony on appeal. Indeed, counsel’s alternative arguments
themselves confirm the ambiguity in Lee’s testimony. Were Lee’s statements about only February
15, 2018? Or were they about his behavior post-2005? The statement “I don’t have guns around
me,” does not, on its own, establish for how long he had not had guns around him, or even if there
ever was a time that he had guns around him. The district court was also able to observe Lee’s
demeanor when making this statement, which could help clarify the message that Lee was trying
to convey to the jury. And the record is clear that Lee did previously have guns around him—at
least he did in 2005, when he was convicted of being a felon in possession of a firearm. For this
reason, we cannot say that the district court abused its discretion in interpreting Lee’s statements
broadly rather than narrowly, as Lee now urges.
Lee also claims that the admitted evidence unfairly prejudiced him because the probative
value was minimal and the risk of prejudice quite high, as he was on trial for the same offense as
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that of his 2005 conviction. To be sure, there was a risk that the introduction of Lee’s prior firearm
conviction might prejudice him. Indeed, the district court initially declined the government’s
request to introduce evidence of the felon-in-possession conviction for impeachment purposes
because of the possibility that the evidence did carry a serious risk of prejudice to Lee. But that
assessment, which balanced prejudice concerns with the evidence’s probative and impeachment
value, changed once the district court found that Lee opened the door.
In order to mitigate the risk of prejudice, the district court properly instructed the jury about
the purposes for which the evidence of the prior conviction could and could not be used. While
we have held that “sometimes evidence is so prejudicial that the risk of a jury’s improper use of
the evidence cannot be quashed by a judge’s instructions,” United States v. Asher, 910 F.3d 854,
862 (6th Cir. 2018) (citing United States v. Jenkins, 593 F.3d 480, 486 (6th Cir. 2010)), those cases
involved the government’s seeking to admit evidence to prove an element of the charged offense,
not to impeach the defendant’s testimony after the defendant “opened the door.” Here, we cannot
conclude that the government was needlessly “piling on,” when other evidence was available.
Cf. Jenkins, 593 F.3d at 486. Rather, we find that the government was seeking to impeach Lee’s
testimony that he never had guns around him even though he had previously been convicted of
being a felon in possession and thus of having a gun around him.
The district court correctly understood FRE 403, 608, and 609, and was cognizant of the
risk of prejudice such evidence might create. The court initially prevented the government from
introducing the evidence, but reassessed once Lee took the stand and made what the court found
to be an “allegedly false statement” that could be impeached by that evidence. The court did not
misunderstand the law or rely on any clearly erroneous factual findings, either of which would be
sufficient for Lee to prevail. See Chavez, 951 F.3d at 358. And, after a careful review of the
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record, we cannot say that the district court’s reassessment of whether the evidence’s prejudice
value substantially outweighed its probative value was a “clear error of judgment.” See id.
Consequently, we find that the district court did not abuse its discretion.1
III.
Lee also brings several Rehaif-based claims. In 2019, the Supreme Court held that “in a
prosecution under 18 U.S.C. § 922(g) and § 924(a)(2), the Government must prove both that the
defendant knew he possessed a firearm and that he knew he belonged to the relevant category of
persons barred from possessing a firearm.” Rehaif, 139 S. Ct. at 2200. Lee argues that (1) his
indictment was faulty, (2) his conviction was based on an improper variance or constructive
amendment, (3) the district court lacked subject-matter jurisdiction because no federal offense was
charged due to the faulty indictment, (4) the jury instructions were improper, and (5) there was
insufficient evidence to support his conviction. We have decided a number of Rehaif-based claims
over the past year and there is binding circuit precedent on each of Lee’s claims. Accordingly, we
affirm the judgment of the district court.
1. Indictment
“Whether an indictment adequately charges an offense is a question of law subject to de
novo review.” United States v. Cor-Bon Custom Bullet Co., 287 F.3d 576, 579-80 (6th Cir. 2002).
“An indictment adequately charges an offense if it (1) includes the elements of the offense intended
to be charged, (2) notifies the defendant of ‘what he must be prepared to meet,’ and (3) allows the
defendant to invoke a former conviction or acquittal in the event of a subsequent prosecution.” Id.
1
The government also argues that even if the district court did err, the error was harmless because of the overwhelming
evidence against Lee, i.e., that three officers witnessed the incident and body camera footage corroborated their
testimony and that Lee’s only defense was that the officers somehow planted Lee’s assistant’s gun on him. While an
error is harmless when, as here, “the record evidence of guilt is overwhelming,” United States v. Brown, 888 F.3d 829,
836 (6th Cir. 2018) (citation omitted), we affirm the district court on the grounds that it did not abuse its discretion in
admitting the evidence because Lee “opened the door” through his testimony.
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at 580 (quoting Russell v. United States, 369 U.S. 749, 763-64 (1962)). But because Lee did not
initially challenge his indictment, we review only for plain error. United States v. Ward, 957 F.3d
691, 694 (6th Cir. 2020). “Thus, we will reverse only if we find (1) error, (2) that was plain or
obvious, (3) that affected the defendant’s substantial rights, as well as (4) the fairness of the judicial
proceedings.” United States v. Conley, 802 F. App’x 919, 922 (6th Cir. 2020). “This standard
applies even when the law changes after the district court proceedings.” Id. That is, the error must
be plain according to settled circuit law at the time of appellate review, whether or not the circuit
law was settled at the time of the district court’s decision. Henderson v. United States, 568 U.S.
266, 273–74 (2013). Similarly, if the district court’s decision was correct according to settled
circuit law at the time, but a subsequent appellate decision changed the law, the appellate court
can find the district court’s decision erroneous. Id. (citing Johnson v. United States, 520 U.S. 461,
468 (1997)). And “[a]n indictment that was not challenged below is construed liberally in favor
of its sufficiency.” Ward, 957 F.3d at 695 (internal quotation marks and citation omitted).
Our precedent establishes that a pre-Rehaif indictment that does not contain the knowledge-
of-status element does not necessarily fail to properly charge a violation of 18 U.S.C. § 922(g).
See id. at 694-95. “[T]he requirement that an indictment allege all of the elements of the offense
charged . . . seeks primarily to ensure that an accused is reasonably informed of the charge made
against him so that he can prepare a defense.” Id. at 694 (quoting Cor-Bon Custom Bullet Co., 287
F.3d at 580). Lee claims that if he had known of the knowledge-of-status element, he could have
presented a defense to that element, “possibly beginning with a decision not to take the stand.”
But that argument does not explain how Lee’s not taking the stand would serve as a defense to the
knowledge-of-status element. And Lee’s not taking the stand likely would not be an effective
defense because we have held that “where there is clear evidence in the record from which to infer
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that the defendant knew he was a felon,” id. at 695, such as in this case where Lee served several
years in prison for being a felon in possession of a firearm, “[n]o reasonable juror could have
believed that he did not know” of his status, United States v. Hobbs, 953 F.3d 853, 858 (6th Cir.
2020). And, finally, “the fact that the defendant in Rehaif ultimately prevailed at the Supreme
Court demonstrates that [the defendant in this case] could have made a similar objection to the
indictment’s omission of a knowledge-of-status element, but failed to do so.” Ward, 957 F.3d at
694-95. So, we cannot say that Lee’s substantial rights were affected and thus, on plain-error
review, his challenge to his indictment fails.2 See id.
2. Improper Variance or Amendment
Because he believes that his indictment was invalid, Lee argues that an improper variance
or amendment occurred. That is, because his indictment was missing the knowledge-of-status
element, Lee claims that, in effect, he was convicted of a different offense (i.e., the § 922(g)(1)
offense that requires proof that the defendant knew of his prohibited status) than the one for which
he was indicted. But because we hold that Lee’s indictment was proper under § 922(g)(1), he was
both indicted and convicted of the same offense, and his improper-variance and constructive-
amendment arguments necessarily fail.3
2
Lee claims that the government waived any challenge to Lee’s grand jury presentment, due process, and double
jeopardy arguments that he has made on appeal to challenge his indictment. The government did argue that Lee’s
indictment adequately charged him with being a felon in possession of a firearm, an argument with which we agree.
Because we hold the indictment was valid, we need not address whether the government waived any specific
arguments.
3
Lee argues that the government did not respond to his improper-variance argument and thus waived any challenge.
It is true that the government did not respond, or even refer, to Lee’s improper-variance and constructive-amendment
arguments. But those arguments become relevant only if Lee’s indictment was invalid. Because we hold that Lee’s
indictment adequately charged him with being a felon in possession of a firearm, his improper-variance or
constructive-amendment claim must fail.
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Case No. 19-2054, United States v. Lee
3. Jurisdiction
Similarly, because he believes that his indictment was improper, Lee argues that the district
court did not have subject-matter jurisdiction. See United States v. Martin, 526 F.3d 926, 934 (6th
Cir. 2008) (“To successfully challenge the district court’s jurisdiction, a defendant who enters a
guilty plea must establish that the face of the indictment failed to charge the elements of a federal
offense.”). Specifically, Lee argues that “the indictment failed to charge that Lee knew he
possessed a firearm and that he knew he belonged to the relevant category of persons barred from
possessing a firearm.” First, the indictment stated clearly that Lee “knowingly possessed a firearm,
that is, a Smith & Wesson .380 caliber handgun,” R. 10, Page ID #20, so Lee’s claim that the
indictment did not charge that he knew he possessed a firearm fails. Second, the pre-Rehaif
indictment did not charge that Lee knew of his prohibited status, but as we concluded above, Lee’s
indictment did not contain any plain error. Moreover, even if his indictment were faulty, Lee’s
jurisdictional argument would still fail because “defects in an indictment do not deprive a court of
its power to adjudicate a case.” United States v. Cotton, 535 U.S. 625, 630 (2002). Indeed, we
recently rejected the same jurisdictional argument made by a defendant whose pre-Rehaif
indictment also did not include the knowledge-of-status element. See Hobbs, 953 F.3d at 856-57
(noting that “our sister circuits have rejected the notion that an indictment’s failure to allege the
‘knowledge-of-status’ element required by Rehaif deprives the court of jurisdiction” and collecting
cases); see also United States v. Watson, 820 F. App’x 397, 399 (6th Cir. 2020) (same). We
therefore reject Lee’s subject-matter-jurisdiction claim as well.
4. Jury Instruction
Because Lee did not initially challenge his jury instructions, we again review only for plain
error. Ward, 957 F.3d at 694. “Thus, we will reverse only if we find (1) error, (2) that was plain
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or obvious, (3) that affected the defendant’s substantial rights, as well as (4) the fairness of the
judicial proceedings.” Conley, 802 F. App’x at 922.
In light of Rehaif, the district court plainly erred by not including the knowledge-of-status
element. See id. at 923. But our precedent establishes clearly that because of his stipulation and
previous criminal history, Lee cannot demonstrate that his substantial rights were affected by the
error. “Although the stipulation of a prior felony does not automatically establish knowledge of
felony status, it is strongly suggestive of it.” Ward, 957 F.3d at 695 (quoting Conley, 802 F. App’x
at 923). Here, Lee stipulated that he “had been convicted of a felony, a crime punishable by more
than one year in prison, knew that he had been convicted of a felony, and had not had his conviction
expunged or his rights restored.” So, unlike the defendants in Conley and Ward, Lee actually
stipulated that he knew of his felony status, not just that he had been previously convicted of a
felony. Cf. id.; Conley, 802 F. App’x at 923. Moreover, “where there is clear evidence in the
record from which to infer that the defendant knew he was a felon, failure to instruct the jury does
not affect the defendant’s substantial rights or the fairness or integrity of the proceedings.” Ward,
957 F.3d at 695. As in Ward, here “the record ‘reveals no reason to think that the government
would have had any difficulty at all in offering overwhelming proof that [the defendant] knew that
he’ was a felon.” Id. (quoting United States v. Burghardt, 939 F.3d 397, 404 (1st Cir. 2019)). In
addition to stipulating that he knew of his felon status, Lee served nearly seven years in prison for
his 2005 firearm conviction, and “[n]o reasonable juror could have believed that [the defendant]
did not know he had been convicted . . . of a crime punishable by imprisonment for a term
exceeding one year,” when the defendant had previously served a multiple-year stint in prison.
Hobbs, 953 F.3d at 858 (internal quotation marks and alterations omitted). Accordingly, we find
that Lee’s jury-instruction challenge fails as well.
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5. Sufficiency of the Evidence
Lee next challenges whether the evidence presented at his trial was sufficient to support
his § 922(g) conviction. “When reviewing the sufficiency of the evidence, ‘the relevant question
is whether, after viewing the evidence in the light most favorable to the prosecution, any rational
trier of fact could have found the essential elements of the crime beyond a reasonable doubt.’”
Ward, 957 F.3d at 695 (quoting Jackson v. Virginia, 443 U.S. 307, 319 (1979)). “In making a
sufficiency-of-the-evidence determination, we must draw all reasonable inferences in favor of the
government, and we will not ‘weigh the evidence, consider the credibility of witnesses, or
substitute [our] judgment for that of the jury.’” Id. at 695-96 (quoting United States v. Ferguson,
23 F.3d 135, 140 (6th Cir. 1994)). The only element that Lee argues that the government failed to
prove beyond a reasonable doubt is the knowledge-of-status element.
When the defendant makes “an Old Chief stipulation at trial” acknowledging that he is a
convicted felon, “[t]he jury could have inferred from these statements that [the defendant] also
knew that he was a felon.” Id. at 696 (emphasis added); see also Conley, 802 F. App’x at 924
(“[T]he jury was entitled to infer knowledge of prohibited status––the second element––from [the
defendant’s] stipulation that he had a prior felony conviction.”). And, as noted, Lee’s Old Chief
statement exceeded the defendant’s stipulation in Ward; Lee stipulated not only that he had been
convicted of a felony, but that he “knew that he had been convicted of a felony.” Lee also had
been previously convicted of being a felon in possession of a firearm, which is enough for a jury
to infer that Lee knew of his prohibited status. Conley, 802 F. App’x at 924 (“At a minimum, the
prior conviction for being a felon in possession of a firearm proved beyond a reasonable doubt that
[the defendant] had the knowledge required by Rehaif.” (cleaned up) (quoting United States v.
Benamor, 937 F.3d 1182, 1189 (9th Cir. 2019))). We therefore find that there was more than
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sufficient evidence to support proof beyond a reasonable doubt that Lee knew of his prohibited
status. Because this is the only element that Lee challenges on appeal, Lee’s sufficiency-of-the-
evidence claim fails.
IV.
Finally, we turn to Lee’s claim that the district court erred by declining to hold an
evidentiary hearing on Lee’s IAC claim until after his direct appeal. Lee is not bringing an IAC
claim in this appeal; he challenges only the district court’s decision to deny his motion for an
evidentiary hearing to develop the record on the IAC issue. “We review the denial of an
evidentiary hearing for abuse of discretion.” United States v. Saunders, 178 F. App’x 484, 488
(6th Cir. 2006) (explaining that “whether the district court erred in failing to hold an evidentiary
hearing is before us, not whether [the defendant’s] counsel was actually ineffective”). “A district
court abuses its discretion where it ‘relies on clearly erroneous findings of fact, improperly applies
the law or uses an erroneous legal standard.’” Id. (quoting United States v. Dixon, 413 F.3d 540,
544 (6th Cir. 2005)).
As Lee acknowledges, the Sixth Circuit’s general rule is that we “typically do not address
ineffective assistance of counsel claims on direct appeal because the record bearing on that
allegation has not yet been sufficiently developed.” Conley, 802 F. App’x at 924 (declining to
review the defendant’s “ineffective assistance arguments at this juncture because he can raise them
in a § 2255 motion”). But “[a]n exception to this principle exists for cases in which the record is
adequately developed to allow the court to properly assess the merits of the issue.” United States
v. Fortson, 194 F.3d 730, 736 (6th Cir. 1999).
Lee argues that, with an evidentiary hearing, the record could have been developed. Lee’s
main contention is that the district court was wrong to reason that Sixth Circuit precedent required
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it not to hold an evidentiary hearing and that the court abused its discretion by applying the wrong
legal standard (i.e., by finding that it was required to deny Lee’s motion to have an evidentiary
hearing). But the district court did not state that it was required to deny the motion for an
evidentiary hearing; the court instead concluded that it would be more appropriate to have the issue
considered on collateral review.
Here is the district court’s explanation in full:
The Sixth Circuit has basically said that the question of ineffective assistance of
counsel ought to be raised on collateral review. There are certain exceptions to that
rule, but they are very narrow exceptions, and that is generally when there is a --
when the question can be decided without developing a record or when it is
apparent from the record that the performance was so lopsided that that call can be
made.
Now, the Supreme Court, in the case of [Massaro v. United States] decided in 2003,
was urged by the Government to adopt a per se rule, hard and fast, that ineffective
assistance of counsel claims cannot be raised except on -- under 2255 motions, and
the Supreme Court said that it would not go that far.
But the Court did note that it did not hold, quoting, “That ineffective assistance
claims must be reserved for collateral review. There may be cases in which trial
counsel’s ineffectiveness is so apparent from the record that appellate counsel will
consider it advisable to raise the issue on direct appeal. There may be instances,
too, when obvious deficiencies in representation will be addressed by an appellate
court sua sponte.”
In those cases, the claim ought to be raised or can be raised on direct review or in a
motion before the trial court, but this is not one of those cases. The Sixth Circuit
has taken a more restrictive approach allowing for the fact that a motion based on
ineffective assistance of counsel could be raised in the trial court or the issue can
be addressed on direct review. But the vast majority of cases and the clear
preference is to handle those in a collateral motion, such as a motion under Section
2255.
And the reason is because, as is manifest here, many times an evidentiary record
has to be developed. Trial counsel, who may or may not be the same, needs to be
interviewed. If there are witnesses, those witnesses have to be interviewed and
questions raised as to whether there was an adequate investigation whether the
witness has something to say that could be helpful to the defense. And so both on
the question of deficient performance and prejudice, an evidentiary record needs to
be developed, and I would emphasize that this case is pretty much the archetype for
such a situation.
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So I’m going to deny the motion for new trial under Rule 33 without prejudice.
Mr. Lee is free to raise this issue again in a motion filed under Section 2255 of Title
28.
R. 90, Page ID #1179-80 (citing Massaro v. United States, 538 U.S. 500, 508 (2003)).
The district court did not claim that it was required to not hold an evidentiary hearing. The
district court instead discussed the rationale behind this court’s general rule that IAC claims be
reserved for collateral review rather than heard on direct appeal and found that those reasons
applied to this case as well. Furthermore, Lee does not cite any case or other authority for the
proposition that a district court’s alleged misunderstanding that it was required—as opposed to
permitted or encouraged—not to hold a hearing is a mistake that would qualify as an abuse of
discretion. Because the district court accurately summarized the Supreme Court’s and this court’s
precedent, and properly followed that precedent, we find that the court did not “improperly appl[y]
the law or use[] an erroneous legal standard.” Dixon, 413 F.3d at 544. Accordingly, we find that
the court did not abuse its discretion by declining to hold an evidentiary hearing on Lee’s IAC
claim. This holding does not prevent Lee from later bringing his IAC claim on collateral review.
V.
For the foregoing reasons, we AFFIRM the judgment of the district court.
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