United States v. Lee

• Court: Court of Appeals for the Sixth Circuit
• Decided: February 27, 2004
• Docket: 03-3496
• Status: Published

Opinion

RECOMMENDED FOR FULL-TEXT PUBLICATION Pursuant to Sixth Circuit Rule 206 2 United States v. Lee No. 03-3496 ELECTRONIC CITATION: 2004 FED App. 0063P (6th Cir.) File Name: 04a0063p.06 _________________ COUNSEL UNITED STATES COURT OF APPEALS ON BRIEF: Isabella Dixon-Thomas, Columbus, Ohio, for FOR THE SIXTH CIRCUIT Appellant. Kevin W. Kelley, UNITED STATES _________________ ATTORNEY, Columbus, Ohio, for Appellee.

UNITED STATES OF AMERICA , X _________________ Plaintiff-Appellee, - OPINION - _________________ - No. 03-3496 v. - > DAVID L. BUNNING, District Judge. This is a direct , criminal appeal from a perjury conviction pursuant to RYAN E. LEE, - 18 U.S.C. §1623. Ryan Lee appeals his conviction on the Defendant-Appellant. - basis of: (1) insufficiency of the evidence; (2) the denial of a N motion to dismiss the indictment; (3) the court’s evidentiary Appeal from the United States District Court rulings; and (4) the denial of his motion for judgment of for the Southern District of Ohio at Columbus. acquittal. The parties have agreed to waive oral argument, No. 02-00024—Algenon L. Marbley, District Judge. and, upon examination, we agree that oral argument is not needed. Fed. R. App. P. 34(a). For the following reasons, we Submitted: December 4, 2003 AFFIRM.

Decided and Filed: February 27, 2004 BACKGROUND The indictment against Lee arose from sworn testimony he Before: SILER and GILMAN, Circuit Judges; BUNNING, gave during his detention hearing before a federal magistrate District Judge.* judge. In an effort to convince the judge that he was a good candidate for pretrial release, Lee testified about his employment. More specifically, Lee testified that he met Jeffrey Bryant and decided to invest money in Bryant’s restaurant, Buckeye Fried Chicken (“Buckeye Chicken”). Lee testified that he worked at Buckeye Chicken and had a 50% interest in the business. Lee stated that he primarily worked at Buckeye Chicken during the week, not during the weekends; that he worked from approximately 6:30 a.m. to about 11:00 a.m.; and that his duties included meeting * The Honorable David L. Bunning, United States District Judge for vendors and picking up supplies from Gordon Food Service. the Eastern District of Kentucky, sitting by designation.

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Lee explained that he had one office at the restaurant, and coming in, we got uhmm, then I go over to GFS Bryant had the other. which is the Gordon Food Services and pick up supplies and different things like that and drop them During cross-examination, Lee announced that he was off. So I’m usually in there between 6:30 and I’m refusing to answer any more questions. After consulting with out of there by about 11:00 when we open.” Lee, Lee’s attorney withdrew Lee’s testimony. The magistrate judge indicated that he would strike Lee’s Q: “If released on some sort of bond would you testimony and not consider it in making his decision continue to work there?” regarding Lee’s bond. A: “Yes, sir.” After the detention hearing, the FBI investigated Lee’s statements regarding his employment at Buckeye Chicken. Lee filed a motion to dismiss the indictment, arguing that The results of this investigation led to Lee being charged with the magistrate’s decision to strike Lee’s testimony made his one count of perjury in violation of 18 U.S.C. §1623. The testimony a “legal nullity.” The district court denied Lee’s Indictment charged: motion to dismiss the indictment on that basis.

At the time and place alleged, the Court was engaged in At trial, the United States called six witnesses. Bryant a detention hearing to determine if there were appropriate testified that Lee never worked at Buckeye Chicken, had no conditions of release for defendant RYAN E. LEE. It role in the day-to-day operations, and had no responsibilities was a matter material to said detention hearing to at Buckeye Chicken. Bryant also testified that Lee never had determine whether or not RYAN E. LEE had an office at Buckeye Chicken and was never given a key to employment, specifically at Buckeye Chicken the restaurant. Bryant acknowledged that Lee had lent him Restaurant, 1971 East Livingston Avenue, Columbus, $33,000, and that he had signed a document in June of 2000 Ohio. purporting to give Lee a 40% interest in the Buckeye Chicken. However, Bryant explained that he never formally At the time and place alleged, RYAN E. LEE, while transferred the ownership, and the document giving the 40% under oath, did knowingly declare in response to was used only a “stalling tactic.” Bryant stated that Lee asked questions from his attorney before said Court with him to pay back the loan by issuing payroll checks to Lee respect to the material matter alleged above, as follows: from Buckeye Chicken, which Bryant did for approximately eight to ten weeks for a total of $418.00 after taxes. Q: “Do you go to work there every day, or where do, how often do you go to work?” Nicole McCullar, a manager at Buckeye Chicken, testified that she and Bryant were responsible for Buckeye Chicken’s A: “Well mostly just during the week, I’m not day-to-day operations. McCullar stated that she knew Lee necessarily there during the weekend because we was at least part owner, or a “silent partner” in the restaurant. don’t normally have vendors come through, usually McCullar testified that before the restaurant opened, Lee I’m there in the mornings to have vendors come would run errands for Bryant and helped get the restaurant through, usually I’m there in the mornings to accept open. McCullar stated that Lee would occasionally give her vendors in. We got chicken coming in, we got rolls money to pay for items such as letterhead, business cards, No. 03-3496 United States v. Lee 5 6 United States v. Lee No. 03-3496

computer equipment, and tables. McCullar explained that it 29 motion for acquittal notwithstanding the jury verdict. The “wasn’t like [Lee] was working but he would be in the store.” court took the motion under advisement. At the sentencing McCullar testified that Lee did not direct employees, but if he hearing, the district court judge stated that he had considered did, they knew to listen to him because of Lee’s connection the arguments of counsel regarding the Rule 29 motion and to Bryant. was denying the motion. McCullar stated that Lee never opened the store in the ANALYSIS morning, did not have a key, and did not have an office at Buckeye Chicken. McCullar stated that Lee may have picked A. Sufficiency of Evidence up supplies once or twice. McCullar explained that Lee knew some of the vendors and would pay them, but he never placed On appeal from a criminal conviction, the question is orders with them. McCullar testified that she had never whether the relevant evidence, direct or circumstantial, observed Lee do any work at the store at the time she was viewed in the light most favorable to the government, could cutting paychecks for him. be accepted by a reasonable-minded jury as adequate and sufficient to support the conclusion of the defendant’s guilt Wayne Wise testified that shortly after he began working at beyond a reasonable doubt. United States v. Meyers, 646 Buckeye Chicken in December of 2001, he was given the F.2d 1142, 1143 (6th Cir. 1981). This inquiry does not responsibility of opening the store. Wise explained that he require a court to “ask itself whether it believes the evidence would arrive at about 8:30 a.m. and only Keith “Pep” Bryant at the trial established guilt beyond a reasonable doubt, ... and McCullar ever opened the store with him. Wise stated he [but] if any rational trier of fact could have found the essential never knew of anyone with a first name of Ryan working at elements.” Jackson v. Virginia, 443 U.S. 307, 312-13 (1979). Buckeye Chicken. In order to obtain a conviction for perjury in violation of Lynn Bostelman of Gordon Food Service (“GFS”) also 18 U.S.C. § 1623, the government must prove that the testified at trial. Bostelman explained that GFS is a wholesale defendant: (1) knowingly made (2) a materially false food distributor. Bostelman testified that Bryant, McCullar, declaration (3) under oath (4) in a proceeding before or and a man named Keith were the only people she ever dealt ancillary to any court of the United States. United States v. with as representatives of Buckeye Chicken. Bostelman McKenna, 327 F.3d 830, 838 (6th Cir. 2003). A statement is indicated the Buckeye Chicken bought items from GFS every material if “it has the natural tendency to influence, or was day, and that she had been out to the restaurant several times. capable of influencing, the decision of the decision-making Bostelman did not recognize Lee when asked to look around body to which it was addressed.” Id. at 839 (citation omitted); the courtroom and point out any representative of Buckeye see also United States v. Sassarelli, 118 F.3d 495, 499 (6th Chicken. Bostelman stated that she did not know anyone by Cir., 1997). Nor is it required that the government prove that the name of Ryan Lee. the perjured testimony actually influenced the relevant decision-making body. McKenna, 327 F.3d at 839. Further, At the close of evidence, Lee’s counsel made a Rule 29 materiality is tested at the time the allegedly false statement motion for judgment of acquittal. The district court judge was made. Id. (emphasis added). reserved on final decision pursuant to Rule 29(b). After the jury returned its verdict of guilty, Lee’s counsel made a Rule No. 03-3496 United States v. Lee 7 8 United States v. Lee No. 03-3496

At trial, FBI Agent Creedon testified that during the B. Motion to Dismiss the Indictment detention hearing, Lee was placed under oath and took the witness stand to testify on his own behalf about his A district court’s refusal to dismiss an indictment is employment status. Lee testified that he worked at Buckeye reviewed for an abuse of discretion. United States v. Powell, Chicken and described his duties at the restaurant. When 823 F.2d 996, 1001 (6th Cir. 1986), cert. denied, 484 U.S. asked if he went to work every day, or how often he worked, 969 (1987); United States v. Overmeyer, 899 F.2d 457, 465 Lee stated that he worked during the week from (6th Cir. 1990), cert. denied, 498 U.S. 939 (1990). In denying approximately 6:30 a.m. to about 11:00 a.m. Lee testified Lee’s Motion to Dismiss, the district court relied on United that his duties at Buckeye Chicken included meeting with States v. Swift, 809 F.2d 320 (6th Cir. 1987), and United vendors and picking up items from GFS. Lee indicated that States v. Sarihifard, 155 F.3d 301 (4th Cir. 1998). he had an office at Buckeye Chicken. In Swift, this court held that a false statement’s failure to During the trial, Bryant, McCullar, and Wise each testified lead the tribunal astray is irrelevant for 18 U.S.C. § 1623 that Lee did not work at Buckeye Chicken. Bryant and analysis. 809 F.2d at 324. The court stated that “a false McCullar testified that Lee had no responsibilities in the day- declaration satisfies the materiality requirement if a truthful to-day operations at Buckeye Chicken. Wise testified that he statement might have assisted or influenced the grand jury in never saw Lee at Buckeye Chicken when he was opening the its investigation.” Id. (citing United States v. Richardson, 596 restaurant at 8:30 a.m. Bryant admitted that Lee had been F.2d 157, 165 (6th Cir. 1979)); see also United States v. Lutz, “cut” Buckeye Chicken paychecks, but explained that the 154 F.3d 581, 588 (6th Cir.1998) (holding that a statement is checks were only to repay a loan. McCullar testified that she "material" if it has the natural tendency to influence or is thought of Lee only as a silent partner, and that Lee might capable of influencing a decision making process; showing of have gone to GFS twice. Bostelman testified that Buckeye actual influence unnecessary to prove materiality); United Chicken made purchases every day at GFS, but she had never States v. DeZarn, 157 F.3d 1042, 1049 (6th Cir.1998) (same). seen Lee nor heard his name. Regardless of what Lee believed his role at Buckeye Chicken to be, this testimony In Sarihifard, it was conceded that the defendant’s false directly contradicted his statements that he was at Buckeye statement to a grand jury had no influence on the grand jury’s Chicken “mostly” during the week, “usually” between the decision because the government later told the grand jury to hours of 6:30 and 11:00, and that he was meeting vendors disregard it because it was false. 155 F.3d at 307. However, there; and regularly making trips to GFS. the court noted that “[a] false statement’s capacity to influence the fact finder must be measured at the point in time Viewed in the light most favorable to the government, the that the statement was uttered.” Id. (citing United States v. evidence was clearly sufficient for a rational trier of fact to Holley, 942 F.2d 916, 923 (5th Cir. 1991)). Therefore, the find that Lee knowingly made false and material declarations court stated that the fact that the government told the grand under oath during his detention hearing regarding his jury not to rely on the defendant’s testimony was irrelevant. employment status at Buckeye Chicken. Therefore, there was Id. The court stated that to hold otherwise would sufficient evidence presented at trial to sustain the jury’s verdict. allow witnesses who lie under oath to escape prosecution if their statements before a grand jury are obviously false. This rationale protects witnesses who fabricate testimony No. 03-3496 United States v. Lee 9 10 United States v. Lee No. 03-3496

that a grand jury will recognize instantly as false. An judge had abrogated the jury’s ability to make factual argument for the creation of such an incentive not only determinations on one of the requisite elements of the offense, misconstrues the scope of materiality, it strains logic. a constitutional violation had occurred. Id. at 523. Lee’s reliance on Gaudin is misplaced. Id. Unlike the case in Gaudin, the issue of materiality was Lee’s statements regarding his employment at Buckeye submitted to the jury during Lee’s trial. The jury heard Chicken were material because that information was capable testimony regarding the materiality of Lee’s statements at the of influencing the magistrate judge’s decision as to whether detention hearing, and then was specifically instructed to Lee should remain in custody. Even though Lee’s testimony determine whether Lee’s statements were material. was withdrawn and ultimately stricken, Lee’s testimony had Therefore, the district court did not abrogate the jury’s ability the capacity to influence the magistrate judge at the time it to make a determination regarding materiality. was given. A defendant cannot perjure himself and then have his perjurious testimony stricken in order to escape Rather, the district court merely ruled, as a matter of law, prosecution. As recognized by the district court, to conclude that the portion of the transcript wherein the magistrate judge otherwise would lead to absurd results. Therefore, the district struck Lee’s earlier testimony was not relevant and could court did not abuse its discretion in overruling Lee’s Motion mislead the jury. Relying on Sarihifard and Swift, supra, the to Dismiss the Indictment. district court explained that the magistrate judge’s statement that he would not consider Lee’s testimony was not relevant C. Evidentiary ruling because the materiality of Lee’s testimony should be measured at the time that the statement was uttered. A district court’s evidentiary rulings are reviewed under an abuse of discretion standard. United States v. Garcia, 20 F.3d Based on this reasoning and the authority cited by the 670, 672 (6th Cir. 1994), cert. denied, 513 U.S. 1159 (1995); district court, it was not an abuse of discretion to exclude United States v. Hickey, 917 F.2d 901, 904 (6th Cir. 1990). evidence showing that Lee’s testimony was subsequently stricken by the magistrate judge. Lee argues that the district court erred in not allowing the jury to hear the portion of the detention hearing transcript D. Rule 29 motion where the magistrate judge struck his allegedly perjurious statements from the record. Lee’s argument is based on The district court’s refusal to grant a motion for judgment United States v. Gaudin, 515 U.S. 506 (1995), wherein the of acquittal is a legal question that we review de novo. United Supreme Court held that the Constitution requires the judge States v. Keeton, 101 F.3d 48, 52 (6th Cir. 1996) (citing to submit any question of materiality concerning a United States v. Gibson, 896 F.2d 206, 209 (6th Cir. 1990)). defendant’s false statement to the jury. In Gaudin, the trial We must determine “whether, after viewing the evidence in judge had instructed the jury that “[t]he issue of materiality the light most favorable to the prosecution, any rational trier . . . is not submitted to you for your decision but rather is a of fact could have found the essential elements of the crime matter for the decision of the court. You are instructed that beyond a reasonable doubt.” Jackson v. Virginia, 443 U.S. the statements charged in the indictment are material 307, 319 (1979). “Substantial and competent” circumstantial statements.” Id. at 508. The Court held that because the trial evidence by itself may support a verdict and need not No. 03-3496 United States v. Lee 11 12 United States v. Lee No. 03-3496

“remove every reasonable hypothesis except that of guilt.” must rest on the utterance by the accused; it may not stand on United States v. Stone, 748 F.2d 361, 363 (6th Cir. 1984). a particular interpretation that the questioner places upon the The general hesitancy to disturb a jury verdict applies with answer. even greater force when a motion of acquittal has been thoroughly considered and subsequently denied by the trial In Shotts, the Eleventh Circuit reversed the perjury judge. United States v. Orrico, 599 F.2d 113, 116 (6th Cir. conviction because the defendant’s statement was “literally” 1979). true, even if it was also “evasive, nonresponsive, intentionally misleading and arguably false.” Id. at 1299. The court stated As stated herein at Section A, a perjury charge pursuant to that the questioner has the burden of pinning the witness 18 U.S.C. § 1623 has four elements: (1) knowingly made; down to the specific object of inquiry. Id. at 1298, (citing (2) a materially false declaration; (3) under oath; (4) in a Bronston v. United States, 409 U.S. 352, 360 (1973)). The proceeding before or ancillary to any court of the United court explained: “If a witness evades, it is the lawyer’s States. responsibility to recognize the evasion and to bring the witness back to the mark, to flush out the whole truth with the After the close of proof, the district court heard arguments tools of adversary examination.” Id. (quoting Bronston, 409 regarding Lee’s Rule 29 motion. Lee’s counsel argued that U.S. at 362). the evidence indicated a belief on the part of Lee that he was 40% owner of Buckeye Chicken, that he had a stake in the Lee’s reliance on Shotts is misplaced. Unlike the defendant business, and it was a place that he worked. The district in Shotts, Lee did not give a “literally” true but unresponsive judge agreed that some of the evidence could create a belief answer. Lee stated where he worked, what his duties were, in Lee’s mind that he was part owner, but pointed out that Lee and what specific times he was at work during the week. The testified specifically that he was “usually there between 6:30 government later investigated Lee’s statements concerning and I’m out of there at about 11:00 when we open.” The Buckeye Chicken, found them to be false, and sought an court explained that this testimony was material because it indictment for perjury. Shotts is also distinguishable because indicated that Lee would be at a certain place during specific Lee testified on direct examination conducted by his own hours during the week and had bearing on his risk of flight. lawyer. When the government attempted to cross-examine However, there was no evidence that Lee was there during Lee about his employment at Buckeye Chicken, Lee abruptly those hours. The court was persuaded by the government’s stopped testifying. Therefore, Lee made it impossible for the argument that Lee held himself out as an employee at the government to question him and “flush” out his testimony. detention hearing, yet the testimony at trial indicated that Lee did not work at Buckeye Chicken. The government presented witnesses at trial who testified that Lee’s statements were false. None of the evidence Lee argues that the district court erred in overruling his supported Lee’s statement that he was “usually there between Rule 29 motion, because the government, in proving the 6:30 and I’m out of there at about 11:00 when we open.” element of falsity, improperly interjected its own Regardless of Lee’s ownership interest, or involvement in the interpretation regarding Lee’s statement that he was employed operations of Buckeye Chicken, the evidence presented at at Buckeye Chicken. Lee relies on United States v. Shotts, trial controverted his statement that he was at Buckeye 145 F.3d 1289, 1298 (11th Cir. 1998), cert. denied, 525 U.S. Chicken during those specific times. Considering the 1177 (1999), for the proposition that a perjury conviction evidence in the light most favorable to the government, a No. 03-3496 United States v. Lee 13

reasonable jury could find that Lee’s statements were materially false. Furthermore, the district court thoroughly considered Lee’s Rule 29 motion. The district judge heard the arguments of the parties, reserved the decision on the motion in order to examine the transcript, and then denied Lee’s motion at the sentencing. Therefore, “the general hesitancy to disturb a jury verdict applies with even greater force.” For the foregoing reasons, the district court did not err in overruling Lee’s Rule 29 motion. AFFIRMED.