USA v. David Simpson

Filing

Filed opinion of the court by Judge Ripple. The district court's denial of Mr. Simpson's motion for a new trial is VACATED and the case is REMANDED for an evidentiary hearing on this motion. Kenneth F. Ripple, Circuit Judge; Ilana Diamond Rovner, Circuit Judge and David F. Hamilton, Circuit Judge. [6857453-1] [6857453] [16-3286]

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In the

United States Court of Appeals
For the Seventh Circuit
____________________
No. 16-3286
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
DAVID L. SIMPSON,
Defendant-Appellant.
____________________
Appeal from the United States District Court for the
Central District of Illinois.
No. 3:13-cr-30056-SEM-JEH-1 — Sue E. Myerscough, Judge.

____________________
ARGUED JUNE 7, 2017 — DECIDED JULY 28, 2017
____________________
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

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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.

I
BACKGROUND
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

1
2

R.80 at 14.

The district court had jurisdiction over this criminal case pursuant to 18
U.S.C. § 3231.

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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

3

R.48 at 50.

4

R.49 at 61.

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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,

5

Id. at 168.

6

Id. at 221.

7

R.43 at 3–4.

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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

8

R.70-1 at 1.

9

R.70-2 at 1.

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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

II
DISCUSSION
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,

10

Id.

11

R.70-3 at 1.

12

R.80 at 13.

13

Our jurisdiction is premised on 28 U.S.C. § 1291.

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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 (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

14

Appellant’s Br. 21.

15

Id. at 21–24.

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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 reasonableness”; and that (2) there was “a reasonable probability that,
but for counsel’s unprofessional errors, the result of the proceeding would have been different.” Strickland, 466 U.S. at
687–88, 694.16
We agree with Mr. Simpson that the district court erred in
concluding that he did not allege a colorable ineffective-assistance-of-counsel claim. Regarding the first Strickland prong, a
hearing might have produced evidence, consistent with
Mr. Simpson’s affidavit, that his trial counsel did not communicate with Mr. Simpson’s proposed witnesses.17 We recognize that “[t]he Constitution does not oblige counsel to present each and every witness that is suggested to him.” Berg,
714 F.3d at 499 (quoting United States v. Best, 426 F.3d 937, 945
16 Federal Rule of Criminal Procedure 33(a) provides that, “[u]pon the de-

fendant’s motion, the court may vacate any judgment and grant a new
trial if the interest of justice so requires.” Fed. R. Crim. P. 33(a). “Although
the Rule does not define ‘interest of justice,’ a violation of a defendant’s
Sixth Amendment right to the effective assistance of trial counsel constitutes a ‘substantial legal error’ such that a new trial is warranted.” United
States v. Arny, 831 F.3d 725, 730–31 (6th Cir. 2016); see also United States v.
Mahmood, 820 F.3d 177, 190 (5th Cir. 2016) (reviewing Rule 33 motion predicated upon an ineffective assistance of counsel claim).
17

The Government does not challenge this contention. See Gov’t’s Br. 20–
34.

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(7th Cir. 2005)). Defense counsel, however, must “investigate
the various lines of defense available in a given case.” Id. (citing Wiggins v. Smith, 539 U.S. 510, 521–23 (2003)). “If counsel
has investigated witnesses and consciously decided not to call
them,” we have held that the trial counsel’s “decision is probably strategic.” Best, 426 F.3d at 945. The record before us,
however, does not indicate whether Mr. Simpson’s defense
counsel contacted these witnesses. Failure to conduct any investigation regarding the potentially exculpatory witnesses
certainly would constitute deficient performance. See Hall v.
Washington, 106 F.3d 742, 750 (7th Cir. 1997) (concluding that
an attorney’s performance is deficient when “a defendant
provides the names of possible mitigation witnesses” and the
attorney does not “determine for himself whether their testimony would be helpful”).
Regarding the second prong, the district court also erred
in concluding that the witnesses’ testimony could not have affected the trial’s outcome. Both Donna Simpson and Lintzenich claimed that they heard Burdell (or Burdell and Winchester, according to Lintzenich) say that Mr. Simpson was taking
the “rap” for the two other passengers.18 The district court determined that this testimony would not have impacted the
trial’s outcome because no hearsay exceptions applied to the
proposed testimony and therefore the statements would have
been inadmissible at trial. This is problematic for two principal reasons: first, the district court acknowledged that the testimony would have been admissible as a prior inconsistent
statement, albeit for the limited purpose of impeaching the
witnesses. Fed. R. Evid. 613; see United States v. Smith, 831 F.3d

18

R.70-1 at 1; R.70-2 at 1.

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793, 800–01 (7th Cir. 2016). As impeachment evidence, this
testimony could have had a meaningful impact on the outcome of the case because Burdell and Winchester were the
only people who could link the heroin to Mr. Simpson, and
they also benefited from that link because they were the only
other occupants of the vehicle. See Moffett v. Kolb, 930 F.2d
1156, 1163 (7th Cir. 1991) (finding prejudice in a habeas corpus
action when trial counsel did not impeach key witness testimony).
The district court’s conclusion also is problematic because
an evidentiary hearing could have allowed for further inquiry
into whether the statements were admissible as either present
sense impressions or excited utterances. Mr. Simpson asserts
that the statements likely would be admissible under these
exceptions to the hearsay rule “because of the timing of the
statements.”19 For example, Donna Simpson’s letter indicates
that Burdell told her that Mr. Simpson was “taking the rap”
for him “during Simpson’s arrest or immediately after the
search of Donna Simpson’s house.”20 This suggests that the
statement was made “without calculated narration,” as required under the present sense exception. United States v.
Ruiz, 249 F.3d 643, 646 (7th Cir. 2001). Lintzenich’s letter similarly suggests that Burdell and Winchester made the “taking
the rap” statements while observing DEA agents search
Mr. Simpson’s home. This short timeframe also suggests that
the statements may be admissible as an excited utterance because Burdell and Winchester did not engage in “conscious
reflection” before making the statements. United States v.
19

Appellant’s Br. 21.

20

Id.

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Moore, 791 F.2d 566, 572 (7th Cir. 1986). The current record,
however, lacks sufficient information to assess whether these
statements would satisfy either exception; an evidentiary
hearing is required to provide the district court with the necessary information to make these determinations.21
We also disagree with the district court’s determination
that Lintzenich’s and Hoffstot’s proposed testimony about
other trips to St. Louis would not have been admissible. In
their submissions, Lintzenich and Hoffstot stated that they
would have testified about other trips to St. Louis where Burdell purchased the heroin and Mr. Simpson only used heroin.
The district court determined that this testimony would not
have been admissible at trial because it was irrelevant. We respectfully disagree. While it is true that testimony about
whether Mr. Simpson purchased or sold heroin on other occasions would not have counteracted evidence regarding
whether Mr. Simpson purchased heroin in St. Louis on the
night in question, this evidence could have been used to support Mr. Simpson’s theory of the case (that Burdell was the
drug dealer and Mr. Simpson only used drugs). It also could
have been used to impeach Burdell’s and Winchester’s testimony that the group previously had made similar trips to St.
Louis where Mr. Simpson purchased heroin.
Finally, the district court erred in considering each alleged
error or piece of evidence piecemeal, rather than considering
the cumulative effect of the potential testimony. See Hough v.

21 The above analysis remains unchanged despite Donna Simpson’s recent

death. On remand, Mr. Simpson shall have the opportunity to question
Lintzenich, Burdell, and Winchester about the “taking the rap” statements.

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Anderson, 272 F.3d 878, 891 n.3 (7th Cir. 2001) (“Although a
specific error, standing alone, may be insufficient to undermine the court’s confidence in the outcome, multiple errors
together may be sufficient.”); see also Goodman v. Bertrand, 467
F.3d 1022, 1030 (7th Cir. 2006). Because the cumulative effect
of this additional evidence may have had a significant impact
on whether the jury viewed Burdell and Winchester as credible, we conclude that the district court abused its discretion
when it did not hold an evidentiary hearing before denying
Mr. Simpson’s new trial motion.

Conclusion
Because the district court did not hold an evidentiary hearing regarding Mr. Simpson’s ineffective assistance of counsel
claim, it was unable to develop issues of fact concerning the
trial counsel’s investigation of potential exculpatory witnesses. On remand, the district court should resolve these issues. On the basis of its findings, the court then should determine whether Mr. Simpson’s motion for a new trial under
Federal Rule of Criminal Procedure 33(a) should be granted.
Accordingly, we vacate the district court’s denial of Mr. Simpson’s motion for a new trial and remand for an evidentiary
hearing on this motion.
VACATED and REMANDED