U.S. v. Lee, 03-3496.

• Decision Date: 27 February 2004
• Docket Number: No. 03-3496.,03-3496.
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Ryan E. LEE, Defendant-Appellant.
• Court: U.S. Court of Appeals — Sixth Circuit

359 F.3d 412

UNITED STATES of America, Plaintiff-Appellee, v. Ryan E. LEE, Defendant-Appellant.

No. 03-3496.

United States Court of Appeals, Sixth Circuit.

Submitted: December 4, 2003.

Decided and Filed: February 27, 2004. Pursuant to Sixth Circuit Rule 206.

On Brief: Isabella Dixon-Thomas, Columbus, Ohio, for Appellant.

Kein W. Kelley, UNITED STATES ATTORNEY, Columbus, Ohio, for Appellee.

Before: SILER and GILMAN, Circuit Judges; BUNNING, District Judge.^*

OPINION

DAVID L. BUNNING, District Judge.

This is a direct criminal appeal from a perjury conviction pursuant to 18 U.S.C. § 1623. Ryan Lee appeals his conviction on the basis of: (1) insufficiency of the evidence; (2) the denial of a motion to dismiss the indictment; (3) the court's evidentiary rulings; and (4) the denial of his motion for judgment of acquittal. The parties have agreed to waive oral argument, and, upon examination, we agree that oral argument is not needed. Fed. R.App.P. 34(a). For the following reasons, we AFFIRM.

BACKGROUND

The indictment against Lee arose from sworn testimony he gave during his detention hearing before a federal magistrate 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 vendors and picking up supplies from Gordon Food Service. Lee explained that he had one office at the restaurant, and Bryant had the other.

During cross-examination, Lee announced that he was refusing to answer any more questions. After consulting with Lee, Lee's attorney withdrew Lee's testimony. The magistrate judge indicated that he would strike Lee's testimony and not consider it in making his decision regarding Lee's bond.

After the detention hearing, the FBI investigated Lee's statements regarding his employment at Buckeye Chicken. The results of this investigation led to Lee being charged with one count of perjury in violation of 18 U.S.C. § 1623. The Indictment charged:

At the time and place alleged, the Court was engaged in a detention hearing to determine if there were appropriate conditions of release for defendant RYAN E. LEE. It was a matter material to said detention hearing to determine whether or not RYAN E. LEE had employment, specifically at Buckeye Chicken Restaurant, 1971 East Livingston Avenue, Columbus, Ohio.

At the time and place alleged, RYAN E. LEE, while under oath, did knowingly declare in response to questions from his attorney before said Court with respect to the material matter alleged above, as follows:

Q: "Do you go to work there every day, or where do, how often do you go to work?"

A: "Well mostly just during the week, I'm not necessarily there during the weekend because we don't normally have vendors come through, usually I'm there in the mornings to have vendors come through, usually I'm there in the mornings to accept vendors in. We got chicken coming in, we got rolls coming in, we got uhmm, then I go over to GFS which is the Gordon Food Services and pick up supplies and different things like that and drop them off. So I'm usually in there between 6:30 and I'm out of there by about 11:00 when we open."

Q: "If released on some sort of bond would you continue to work there?"

A: "Yes, sir."

Lee filed a motion to dismiss the indictment, arguing that the magistrate's decision to strike Lee's testimony made his testimony a "legal nullity." The district court denied Lee's motion to dismiss the indictment on that basis.

At trial, the United States called six witnesses. Bryant testified that Lee never worked at Buckeye Chicken, had no role in the day-to-day operations, and had no responsibilities at Buckeye Chicken. Bryant also testified that Lee never had an office at Buckeye Chicken and was never given a key to the restaurant. Bryant acknowledged that Lee had lent him $33,000, and that he had signed a document in June of 2000 purporting to give Lee a 40% interest in the Buckeye Chicken. However, Bryant explained that he never formally transferred the ownership, and the document giving the 40% was used only a "stalling tactic." Bryant stated that Lee asked him to pay back the loan by issuing payroll checks to Lee from Buckeye Chicken, which Bryant did for approximately eight to ten weeks for a total of $418.00 after taxes.

Nicole McCullar, a manager at Buckeye Chicken, testified that she and Bryant were responsible for Buckeye Chicken's day-to-day operations. McCullar stated that she knew Lee was at least part owner, or a "silent partner" in the restaurant. McCullar testified that before the restaurant opened, Lee would run errands for Bryant and helped get the restaurant open. McCullar stated that Lee would occasionally give her money to pay for items such as letterhead, business cards, computer equipment, and tables. McCullar explained that it "wasn't like [Lee] was working but he would be in the store." McCullar testified that Lee did not direct employees, but if he did, they knew to listen to him because of Lee's connection to Bryant.

McCullar stated that Lee never opened the store in the morning, did not have a key, and did not have an office at Buckeye Chicken. McCullar stated that Lee may have picked up supplies once or twice. McCullar explained that Lee knew some of the vendors and would pay them, but he never placed orders with them. McCullar testified that she had never observed Lee do any work at the store at the time she was cutting paychecks for him.

Wayne Wise testified that shortly after he began working at Buckeye Chicken in December of 2001, he was given the responsibility of opening the store. Wise explained that he would arrive at about 8:30 a.m. and only Keith "Pep" Bryant and McCullar ever opened the store with him. Wise stated he never knew of anyone with a first name of Ryan working at Buckeye Chicken.

Lynn Bostelman of Gordon Food Service ("GFS") also testified at trial. Bostelman explained that GFS is a wholesale food distributor. Bostelman testified that Bryant, McCullar, and a man named Keith were the only people she ever dealt with as representatives of Buckeye Chicken. Bostelman indicated the Buckeye Chicken bought items from GFS every day, and that she had been out to the restaurant several times. Bostelman did not recognize Lee when asked to look around the courtroom and point out any representative of Buckeye Chicken. Bostelman stated that she did not know anyone by the name of Ryan Lee.

At the close of evidence, Lee's counsel made a Rule 29 motion for judgment of acquittal. The district court judge reserved on final decision pursuant to Rule 29(b). After the jury returned its verdict of guilty, Lee's counsel made a Rule 29 motion for acquittal notwithstanding the jury verdict. The court took the motion under advisement. At the sentencing hearing, the district court judge stated that he had considered the arguments of counsel regarding the Rule 29 motion and was denying the motion.

ANALYSIS

A. Sufficiency of Evidence

On appeal from a criminal conviction, the question is whether the relevant evidence, direct or circumstantial, viewed in the light most favorable to the government, could be accepted by a reasonable-minded jury as adequate and sufficient to support the conclusion of the defendant's guilt beyond a reasonable doubt. United States v. Meyers, 646 F.2d 1142, 1143 (6th Cir.1981). This inquiry does not require a court to "ask itself whether it believes the evidence at the trial established guilt beyond a reasonable doubt, ... [but] if any rational trier of fact could have found the essential elements." Jackson v. Virginia, 443 U.S. 307, 312-13, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979).

In order to obtain a conviction for perjury in violation of 18 U.S.C. § 1623, the government must prove that the defendant: (1) knowingly made (2) a materially false declaration (3) under oath (4) in a proceeding before or ancillary to any court of the United States. United States v. McKenna, 327 F.3d 830, 838 (9th Cir.2003). A statement is material if "it has the natural tendency to influence, or was capable of influencing, the decision of the decision-making body to which it was addressed." Id. at 839 (citation omitted); see also United States v. Sassanelli, 118 F.3d 495, 499 (6th Cir., 1997). Nor is it required that the government prove that the perjured testimony actually influenced the relevant decision-making body. McKenna, 327 F.3d at 839. Further, materiality is tested at the time the allegedly false statement was made. Id. (emphasis added).

At trial, FBI Agent Creedon testified that during the detention hearing, Lee was placed under oath and took the witness stand to testify on his own behalf about his employment status. Lee testified that he worked at Buckeye Chicken and described his duties at the restaurant. When asked if he went to work every day, or how often he worked, Lee stated that he worked during the week from approximately 6:30 a.m. to about 11:00 a.m. Lee testified that his duties at Buckeye Chicken included meeting with vendors and picking up items from GFS. Lee indicated that he had an office at Buckeye Chicken.

During the trial, Bryant, McCullar, and Wise each testified that Lee did not work at Buckeye Chicken. Bryant and McCullar testified that Lee had no responsibilities in the day-to-day operations at Buckeye Chicken. Wise testified that he never saw Lee at Buckeye Chicken when he was opening the restaurant at 8:30 a.m. Bryant admitted that Lee had been "cut" Buckeye Chicken paychecks, but explained that the checks were only to repay a...