United States v. Simpson

• Decision Date: 28 July 2017
• Docket Number: No. 16-3286,16-3286
• Citation: 864 F.3d 830
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. David L. SIMPSON, Defendant-Appellant.
• Court: U.S. Court of Appeals — Seventh Circuit

864 F.3d 830

UNITED STATES of America, Plaintiff-Appellee,

v.David L. SIMPSON, Defendant-Appellant.

No. 16-3286

United States Court of Appeals, Seventh Circuit.

Argued June 7, 2017

Decided July 28, 2017

Jason M. Bohm, Attorney, OFFICE OF THE UNITED STATES ATTORNEY, for Plaintiff-Appellee.

Michelle L. Jacobs, Vanessa K. Eisenmann, Attorneys, BISKUPIC & JACOBS, S.C., Mequon, WI, for Defendant-Appellant.

Before Ripple, Rovner, and Hamilton, Circuit Judges.

Ripple, Circuit Judge.

A jury convicted David Simpson of possession with intent to distribute heroin, in violation of 21 U.S.C. §§ 841(a)(1) and 841(b)(1)(C). He moved for a new trial under Federal Rule of Criminal Procedure 33(a), alleging that his trial counsel had been ineffective by failing to investigate and call three witnesses who had potentially exculpatory evidence. The district court declined to conduct an evidentiary hearing and denied the motion because it found "no reasonable possibility" that the proposed testimony of these witnesses would have changed the trial's outcome.¹ On appeal, Mr. Simpson argues that the district court abused its discretion by denying his motion without an evidentiary hearing.² Because we believe that Mr. Simpson alleged sufficient facts to support an ineffective-assistance-of-counsel claim, we vacate the denial of his motion and remand for an evidentiary hearing.

IBACKGROUND

Mr. Simpson came to the attention of law enforcement when one of his associates, Joe Burdell, was arrested for driving under the influence of heroin and agreed to cooperate with local police in building a case against Mr. Simpson. Roughly one week after his arrest, Burdell alerted the police that he and Mr. Simpson would be driving to St. Louis to buy heroin. The police dispatched an officer to follow them. On their way to St. Louis, Mr. Simpson, Burdell, and an additional passenger, Jade Winchester, made several stops in small towns in southern Illinois to pick up money for the planned heroin purchase. They first went to a junkyard to exchange some scrap metal for cash. They then stopped at a Dairy Queen to collect money from a heroin customer named David Zenner. Finally, they met up with another individual at the intersection of two state roads.

Mr. Simpson, Burdell, and Winchester then drove to an apartment building in St. Louis. According to Winchester's testimony, Mr. Simpson went to an apartment unit and returned with a "sack" of heroin,³ which was packaged in capsules that Mr. Simpson then transferred to his cigarette case. Burdell also testified that Mr. Simpson bought the heroin capsules in St. Louis and that Mr. Simpson put those capsules into his cigarette case. Both Winchester and Burdell testified that the group then drove to a hotel parking lot, where Burdell and Mr. Simpson shot up heroin.

After leaving the parking lot, the group drove on Interstate 55 to the Staunton exit, where they planned to meet Zenner, the heroin customer who had given Mr. Simpson money hours earlier at the Dairy Queen. Before the group reached Zenner, however, law enforcement officers stopped the group's vehicle. Burdell testified that Mr. Simpson then "threw the cigarette pack underneath [Burdell's] seat," but an officer seized it.⁴ The pack bore Mr. Simpson's right thumb print and contained 38 capsules (about 2.3 grams) of heroin. The Government arrested Mr. Simpson and later charged him with possession with intent to distribute heroin.

At trial, the Government presented testimony about these events from Winchester, Burdell, and Zenner. Winchester and Burdell both testified that Mr. Simpson collected money on their way to St. Louis, bought the heroin capsules, and planned to meet Zenner on the return trip. Zenner also testified that he gave Mr. Simpson money to buy heroin. Additionally, the police officer who had tailed the group confirmed each of the stops en route to St. Louis. A deputy U.S. marshal testified that, while accompanying Mr. Simpson out of the courtroom after a pretrial hearing, Mr. Simpson referred to himself as a "low-level drug dealer[ ]."⁵ Records of Mr. Simpson's cell phone communications with his two heroin customers as well as a St. Louis-area number corroborated the stops Mr. Simpson made on the day of his arrest.

Mr. Simpson testified in his own defense. He denied buying heroin in St. Louis and accused Burdell of being the actual buyer. According to Mr. Simpson, when he, Winchester, and Burdell arrived at a St. Louis parking lot, "somebody came out" to give Burdell "some stuff," but Mr. Simpson did not know what it was.⁶ According to his testimony, the group then went to a hotel parking lot where Burdell gave him heroin to shoot up. Mr. Simpson acknowledged that the cigarette case was his, but said that he gave it to Burdell roughly twenty minutes before they were pulled over so that Burdell could get a cigarette, and that, at that time, the case did not contain heroin.

After the jury found Mr. Simpson guilty, his trial counsel moved to withdraw, citing "irreconcilable differences" with Mr. Simpson.⁷ The district court granted the motion. Mr. Simpson's new attorney timely moved for a new trial, claiming that Mr. Simpson's trial counsel had been ineffective. Specifically, the motion cited: (1) trial counsel's failure to interview and call three witnesses with potentially exculpatory evidence (Mr. Simpson's mother, Donna Simpson; and two of his acquaintances, Jacqueline Lintzenich and Zachary Hoffstot, who previously had accompanied Burdell and Mr. Simpson on trips to buy drugs); (2) trial counsel's failure to effectively cross-examine the Government's witnesses (Burdell, Winchester, and Zenner); (3) trial counsel's inaccurate assessment of the Government's case, including advising Mr. Simpson to reject a plea bargain; and (4) trial counsel's failure to prepare Mr. Simpson to testify, i.e., by not discussing his testimony with him or alerting him that he would be subject to cross-examination.

In support of the motion for a new trial, Mr. Simpson attached an affidavit asserting that he had told his trial counsel that he wanted to call his mother, Lintzenich, and Hoffstot to testify, but that his counsel did not contact them. He also submitted notarized letters from the three potential witnesses. Donna Simpson stated that Burdell told her at the time of Mr. Simpson's arrest that Mr. Simpson was "tak[ing] the rap for [Burdell] and [Winchester]."⁸ Lintzenich also heard Burdell and Winchester say that Mr. Simpson "took the wrap [sic] for purchasing the [h]eroin."⁹ She also stated that she never saw Mr. Simpson sell heroin or buy drugs on other "[d]rug runs" with Burdell and asserted that, in the past, Mr. Simpson had "purchased [h]eroin for personal use only."¹⁰ Hoffstot stated that he had witnessed "Burdell buying the [h]eroin" on other trips to St. Louis and that Mr. Simpson did not "deal[ ]" heroin.¹¹

After considering this evidence, the district court denied the motion for a new trial and declined to hold an evidentiary hearing on Mr. Simpson's motion. The court concluded that Mr. Simpson was "not entitled to an evidentiary hearing because he ha[d] not alleged sufficient facts to show that he suffered prejudice from his counsel's alleged trial errors."¹² Regarding his trial counsel's failure to interview Donna Simpson, Lintzenich, and Hoffstot, the court explained that any testimony repeating the contents of their letters would be inadmissible because it would be either irrelevant or hearsay.

The court later sentenced Mr. Simpson to eight years' imprisonment and six years' supervised release. Mr. Simpson timely appeals.¹³

IIDISCUSSION

On appeal, Mr. Simpson contends that the district court erred in denying his request for an evidentiary hearing in connection with his motion for a new trial. Such a hearing, Mr. Simpson asserts, would have allowed him to develop evidence demonstrating that (1) his trial counsel's performance fell below an objective standard of reasonableness by not contacting Donna Simpson, Lintzenich, and Hoffstot; and that (2) he would have been found not guilty if his trial counsel had called the three proposed witnesses. See Strickland v. Washington , 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). Mr. Simpson also contends that a hearing would have "fully flesh[ed] out" the circumstances under which Burdell made his "taking the rap" statements to Donna Simpson and Lintzenich,¹⁴ which he asserts might be admissible as present sense impressions, see Fed. R. Evid. 803(1), excited utterances, see Fed. R. Evid. 803(2), or as "statements of an ‘unavailable’ declarant speaking contrary to his interest," see Fed. R. Evid. 804(b)(3).¹⁵

We review the district court's decision not to hold an evidentiary hearing for abuse of discretion. United States v. Berg , 714 F.3d 490, 501 (7th Cir. 2013). In the ordinary course, we "leave ineffective assistance of counsel claims for collateral review." Id. at 499. But when a defendant raises an ineffective assistance claim in a motion for a new trial, "typically," that claim "is addressed by holding an evidentiary hearing for the trial court to consider the evidence of the trial counsel's deficiency and its possible effect on the outcome." United States v. Malone , 484 F.3d 916, 919 (7th Cir. 2007). As we have explained in the habeas context, "[i]neffective assistance claims often require an evidentiary hearing because they frequently allege facts that the record does not fully disclose." Osagiede v. United States , 543 F.3d 399, 408 (7th Cir. 2008). A district court, however, does not abuse its discretion by declining to hold a hearing when "there is no reason to suppose that a hearing would produce evidence justifying the grant of a new trial." United States v. Taglia , 922 F.2d 413, 419 (7th Cir. 1991). Mr. Simpson's motion for a new trial therefore must establish that a hearing may have yielded evidence showing that (1) his trial lawyer's performance "fell below an objective standard of...