United States v. David Simpson, 2017 U.S. App. LEXIS 13736

Background

Simpson was convicted by a jury of possession with intent to distribute heroin after police stopped a vehicle; a cigarette case bearing his thumbprint contained 38 heroin capsules.
Key government witnesses (Burdell and Winchester) testified Simpson bought the heroin in St. Louis; they and a third witness (Zenner) described stops and money transfers supporting the buy-and-return narrative.
Simpson testified he did not buy the heroin, claimed Burdell was the buyer, and said he gave his cigarette case to Burdell shortly before the stop when it did not contain heroin.
After conviction, Simpson’s trial counsel withdrew; new counsel moved for a new trial asserting ineffective assistance for failing to contact or call three potential exculpatory witnesses (Simpson’s mother Donna Simpson, Jacqueline Lintzenich, and Zachary Hoffstot) and other trial deficiencies.
The proposed witnesses would have testified that Burdell (and Winchester) said Simpson was "taking the rap" for them and that on other trips Burdell bought heroin while Simpson only used; the district court denied a new trial and declined an evidentiary hearing, deeming the proffers inadmissible or irrelevant.
The Seventh Circuit vacated and remanded, holding Simpson alleged sufficient facts to warrant an evidentiary hearing on whether counsel’s failure to investigate/call witnesses was deficient and prejudicial under Strickland, and whether the proffered statements might be admissible or useful for impeachment or as exceptions to hearsay.

Issues

Issue	Simpson's Argument	Government's Argument	Held
Whether district court abused discretion by denying evidentiary hearing on ineffective-assistance claim	Counsel failed to contact/call three potential exculpatory witnesses; a hearing could show deficient performance and prejudice	Hearing unnecessary because proposed testimony would be inadmissible hearsay or irrelevant and could not change outcome	Vacated and remanded: hearing required because Simpson alleged facts that, if true, could show deficiency and reasonable probability of a different result
Admissibility of "taking the rap" statements for trial	Statements might fit present sense impression, excited utterance, or statements against interest; could be admissible or at least used to impeach Burdell/Winchester	District court said hearsay exceptions do not apply and statements are therefore inadmissible	Court held record insufficient; an evidentiary hearing needed to determine admissibility and impeachment value
Relevance of testimony about other trips to St. Louis	Testimony that Burdell bought heroin on other trips and Simpson only used supports Simpson’s defense and could impeach prosecution witnesses	District court found such prior-trip testimony irrelevant to the charged occasion	Seventh Circuit found the testimony potentially relevant to Simpson’s theory and impeachment; hearing warranted
Whether district court erred by assessing errors piecemeal rather than cumulatively	Cumulative effect of omitted witnesses and impeachment could undermine confidence in outcome	District court considered items separately and denied relief	Court held cumulative assessment required; district court abused discretion by not holding hearing

Key Cases Cited

Strickland v. Washington, 466 U.S. 668 (Ineffective assistance requires deficient performance and prejudice)
United States v. Berg, 714 F.3d 490 (7th Cir. 2013) (counsel must investigate available lines of defense)
United States v. Malone, 484 F.3d 916 (7th Cir. 2007) (new-trial ineffective-assistance claims normally require evidentiary hearing)
Osagiede v. United States, 543 F.3d 399 (7th Cir. 2008) (ineffective-assistance claims often need hearings because record is incomplete)
United States v. Best, 426 F.3d 937 (7th Cir. 2005) (distinguishing strategic choice after investigation from failure to investigate)
United States v. Taglia, 922 F.2d 413 (7th Cir. 1991) (no hearing required if hearing would not produce evidence justifying relief)
United States v. Ruiz, 249 F.3d 643 (7th Cir. 2001) (present sense impression hearsay exception standards)
United States v. Moore, 791 F.2d 566 (7th Cir. 1986) (excited utterance hearsay exception standards)
Hough v. Anderson, 272 F.3d 878 (7th Cir. 2001) (cumulative error analysis)