United States v. Edgar Steele, 2013 U.S. App. LEXIS 21612

Background

Edgar Steele, a criminal defense attorney, was convicted by a federal jury of murder-for-hire, use of explosives, possession of a destructive device, and victim tampering based largely on recordings and testimony from a hired handyman, Larry Fairfax.
Fairfax recorded conversations with Steele after being recruited to kill Steele’s wife and mother-in-law; one pipe bomb was found on the wife’s car but failed to detonate.
Steele’s trial defense asserted the recordings were fabricated; the court held a pretrial Daubert hearing limiting proffered expert testimony on fabrication.
Defense expert Dr. George Papcun was qualified but not subpoenaed by trial counsel; the court allowed his testimony only if a factual predicate emerged at trial. Papcun was on vacation when the need arose and trial counsel chose not to secure his attendance.
After conviction, trial counsel McAllister pleaded guilty to unrelated fraud; substitute counsel moved for a new trial alleging ineffective assistance of counsel (IAC). The district court denied the motion without adjudicating the IAC claims, deferring them to collateral review.

Issues

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether a district court must decide a pre-judgment ineffective-assistance claim presented in a motion for new trial	Steele: district court should adjudicate IAC now and remand for evidentiary development (esp. failure to secure Dr. Papcun)	Government: district court properly exercised discretion to defer IAC claims to collateral (habeas) proceedings when record is underdeveloped	The court affirmed: district court has discretion to hear pre-judgment IAC claims but did not abuse discretion in deferring here because the record was insufficient and claims were broad
Standard for reviewing IAC on direct appeal	Steele: IAC should be addressed if record permits	Government: IAC generally inappropriate on direct appeal absent developed record or obvious deficiency	The court reiterated that IAC claims are generally for collateral review unless record is developed or representation clearly deficient
Whether district court misapplied law when denying new trial without ruling on IAC	Steele: ambiguous order shows court thought it lacked authority to hear IAC	Government: order and record show court understood its discretion and chose to defer	The court held the district court understood its authority and exercised discretion appropriately
Whether trial counsel’s failure to subpoena Dr. Papcun amounted to per se IAC requiring immediate relief	Steele: counsel’s failure prevented critical expert testimony	Government: record shows counsel made a conscious tactical choice and Daubert limited Papcun’s probative value; record insufficient to resolve IAC now	The court held the record lacked a factual explanation for counsel’s choice and the court had already limited Papcun’s testimony; deferral was appropriate

Key Cases Cited

United States v. Ross, 206 F.3d 896 (9th Cir. 2000) (IAC claims generally inappropriate on direct appeal; review when record permits)
United States v. Rivera-Sanchez, 222 F.3d 1057 (9th Cir. 2000) (same standard for direct-appeal IAC review)
United States v. Del Muro, 87 F.3d 1078 (9th Cir. 1996) (district court may hear pre-judgment IAC claims and appointment of new counsel may be required for hearings)
United States v. Brown, 623 F.3d 104 (2d Cir. 2010) (adopted rule that district courts may and sometimes should decide IAC claims raised before judgment; decision left to district court discretion)
United States v. Miskinis, 966 F.2d 1263 (9th Cir. 1992) (deferral of IAC resolution is discretionary and depends on the record)
United States v. $11,500.00 in U.S. Currency, 710 F.3d 1006 (9th Cir. 2013) (district court abuses discretion if it applies incorrect legal standard)
Miller v. Hambrick, 905 F.2d 259 (9th Cir. 1990) (failure to exercise discretion constitutes an abuse of discretion)