574 F. App'x 667
6th Cir.2014Background
- Neville Lyimo, owner of NetASk Tax Service, was indicted for preparing false tax returns for immigrant clients (2004–2007); jury convicted him on 10 of 17 counts under 26 U.S.C. § 7206(2).
- Lyimo subpoenaed DHS/ICE assistant field officer David DeWeese to impeach taxpayer witnesses on immigration and visa issues; the subpoena was served directly on DeWeese without following DHS Touhy procedures in 6 C.F.R. §§ 5.41–.49.
- The Government moved to quash the subpoena for failure to serve the DHS Office of General Counsel and for lack of specificity; the district court granted the motion and DeWeese did not testify.
- After conviction, Lyimo moved under Fed. R. Crim. P. 29 and 33 (judgment of acquittal, new trial), arguing witnesses were not credible and that exclusion of DeWeese violated his Fifth and Sixth Amendment rights; the district court denied both motions.
- On appeal, the Sixth Circuit affirmed: Lyimo forfeited constitutional challenges by failing to comply with Touhy subpoena procedures and did not show the evidence so heavily preponderated against the verdict to warrant a new trial.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Validity/enforceability of DHS Touhy subpoena regulations | Lyimo: regulations prevent him from presenting witnesses and create one-sided discovery, violating Fifth and Sixth Amendment rights | Government: regulations are lawful, Lyimo failed to follow required procedures and thus cannot raise constitutional challenge | Court: Lyimo forfeited challenge by not complying with Touhy procedures; constitutional claims barred |
| Exclusion of DeWeese's testimony | Lyimo: exclusion prejudiced defense and violated right to present witnesses | Government: subpoena noncompliant with DHS rules; quash appropriate | Court: quash proper; no relief because defendant did not seek DHS authorization first |
| Motion for new trial under Rule 33 — weight of evidence | Lyimo: witness credibility issues and alternative explanations make verdicts against manifest weight | Government: credibility disputes do not justify new trial; evidence supported convictions | Court: denial of new trial affirmed; no clear abuse of discretion; evidence didn’t preponderate heavily against verdicts |
| Applicability of Bahamonde exception | Lyimo: Bahamonde allows constitutional challenge despite noncompliance due to discovery imbalance | Government: Bahamonde factually distinguishable here (agent not part of prosecution team) | Court: Bahamonde inapplicable; no basis to excuse noncompliance here |
Key Cases Cited
- United States ex rel. Touhy v. Ragen, 340 U.S. 462 (Touhy establishes agency control over employee testimony)
- United States v. Marino, 658 F.2d 1120 (6th Cir. 1981) (defendant must follow Touhy procedures before raising constitutional challenge)
- United States v. Bahamonde, 445 F.3d 1225 (9th Cir. 2006) (exception to Touhy-compliance requirement where agent was part of prosecution team)
- United States v. Soriano-Jarquin, 492 F.3d 495 (4th Cir. 2007) (Touhy regulations govern agency employee testimony; noncompliance forecloses challenge)
- United States v. Lutz, 154 F.3d 581 (6th Cir. 1998) (standard for granting new trial based on manifest weight)