Affirmed in part, vacated in part, and remanded for resentencing by published opinion. Senior Judge PHILLIPS -wrote the opinion, in which Judge MURNAGHAN and Judge MICHAEL joined.
OPINION
Jonathan Smith appeals from his conviction and sentencing on six narcotics charges. He contends, inter alia, that the district court gave a misleading and prejudicial supplemental jury instruction, improperly denied his motion for a new trial based on ineffective assistance of counsel, and erred in enhancing his sentence on grounds of obstruction of justice. We find Smith’s first contention, as well as his further allegations of trial error, unpersuasive, and therefore affirm his conviction. Also, concluding that Smith’s new trial motion was untimely,- we affirm the district court’s denial of that motion on the grounds that it lacked jurisdiction to hear it. However, because we agree that the district court failed to make the specific findings of perjury necessary to support the sentencing enhancement for obstruction of justice, we remand for resentencing.
I.
The facts giving rise - to Smith’s conviction arose from two separate events, nearly a *644 year apart. We recount the evidence in the light most favorable to the government.
On August 18, 1992, an undercover officer for the Raleigh Police Department observed Smith making two street-level sales of crack cocaine. Smith was immediately arrested. A search of his person turned up a medicine bottle containing 10.3 grams of crack. After his arrest, Smith was advised of, and waived, his Miranda rights. He admitted that the previous day he had received 40 grams of crack for resale.
On July 27, 1993, a postal carrier attempted to deliver an Express Mail package to a trailer in Fayetteville, North Carolina. Finding nobody at home, the carrier left a notice advising that the package could be retrieved at the post office. Two days later, Smith and Glen David, a/k/a Travis Washington, twice attempted to pick up the package. Both times they were refused because they did not produce identification of the addressee, “Lee Lane.” David returned alone a third time and was again rebuffed. The postal supervisor witnessed these scenes and, his suspicions aroused, contacted the postal inspector. Shortly thereafter, a sheriffs deputy arrived with a narcotics detection dog which alerted on the package sought by Smith and David. The package was opened and found to contain approximately 122 grams of crack, all but 5 of which were removed by the postal inspector. The package was then resealed. A search warrant for the residence to which the package was addressed was obtained and a controlled delivery was planned for the following day.
On July 30, that delivery was made. Glen David was at the trailer. He accepted the package and signed as “Travis Jefferson.” In short order, state and federal officers executed the search warrant. David and a third party were found inside and arrested; Smith was not present. A search of Smith’s bedroom turned up a revolver, a pager, and $7000 in cash in seven equal stacks made up of small denominations. Elsewhere in the house agents found the unopened Express Mail package, a semi-automatic pistol, 13.9 grams of crack in a plastic bag, and a small set of postal scales. During the execution of the search warrant, Smith arrived at the trailer by car. After being warned off by a gesticulating neighbor, Smith made a U-turn and sped away. He was pursued in an unmarked police car, caught, and arrested.
Smith was subsequently indicted on six drug trafficking offenses. The heart of the indictment charged Smith with conspiring during July 1993 to possess and distribute crack cocaine and with use of a firearm during and in relation to a drug trafficking offense. The sixth count was not related to the alleged July 1993 conspiracy. It charged that on or about August 18, 1992, Smith possessed with intent to distribute crack cocaine.
Testifying for the government at the ensuing jury trial, Smith’s indicted co-conspirator Glen David offered detailed testimony regarding a conspiracy, lasting barely over a month, to distribute crack. David testified that on at least four separate occasions he and Smith purchased crack in multiple-ounce quantities from a drug dealer named “T” in Brooklyn; that they would then sell the crack in Fayetteville in quantities ranging from a quarter-ounce to an ounce to distributors of user amounts; that the two firearms, the pager, and the $7000 cash all belonged to Smith; and that Smith had rented the trailer. According to police testimony, Smith had corroborated the details of the July conspiracy in a confession that he made upon his July 30th arrest (and after he waived his Miranda rights).
Smith testified in his own defense. He denied making either the August 18, 1992 or the July 30, 1993 confessions. He also denied any involvement in drug trafficking. According to Smith’s testimony, the drugs and guns found in the July 30th raid belonged to David, who was staying as a guest in Smith’s trailer. Smith admitted ownership of the $7000 in cash but explained that it was a loan from his mother and sister.
After closing arguments, the district court instructed the jury on all counts. On the conspiracy charge, the district court gave the instruction that Smith had requested. After some deliberation, however, the jury asked that the conspiracy instructions be clarified. The court gave a supplemental instruction to *645 which Smith did not object. An hour later, the jury returned a verdict of guilty on all counts.
At the June 1994 sentencing hearing, Smith asked that his counsel, Assistant Public Defender Gale Adams, be removed because he “thought she didn’t do a good enough job.” The district court expressed skepticism over Smith’s complaints, opining that Adams was “one of the best lawyers available, public defender or private,” but nonetheless acceded to Smith’s request for a continuance and appointment of new counsel.
Smith then added that he had just found out that the public defender’s investigator who had worked on his case was also affiliated with the Cumberland County Sheriffs Department — the very sheriffs department that was involved in the July 1993 controlled delivery, search, and arrest. After a brief colloquy with Ms. Adams during which she confirmed that Investigator Chuck Livingston might indeed be a Special Deputy for the County Sheriffs Department, the district judge ruled that he would direct appointment of a private attorney to represent Smith. The court also speculated that Smith might have a legitimate request for a new trial based on conflict of interest. The court reflected that
[i]t doesn’t sound right to me how you can have an investigator be defendant’s investigator and be a member of a law enforcement agency who is prosecuting the case.
You don’t get to prosecute the case and represent the defendant at the same time even though you might be able to do it. It certainly would be efficient, but the system just doesn’t tolerate that.
J.A. 310-11.
New counsel having been appointed, Smith filed a motion for a new trial based on “newly discovered evidence” and “other grounds” on September 16,1994. Smith argued in particular that Investigator Livingston’s conflict of interest led him to investigate the case inadequately and to sabotage Smith’s chances for acquittal by informing potential defense witnesses that they would not be needed to testify at trial. Smith maintained that, had these fact and character witnesses “been called to testify, their testimony was of such character and relevancy that it would probably [have] resulted] in a different verdict.”
Despite its earlier expression of sympathy for Smith’s argument, the district court denied Smith’s motion at the subsequent consolidated hearing on the motion and for sentencing. The court concluded that
[t]he claims made by the defendant having to do with the conflict of interest between the Public Defender’s investigator and the police are not material to the charges and trial in this case.
The defendant was investigated and prosecuted by other law enforcement personnel. There isn’t any showing that the part-time employment of that investigator in any way impacted on the full events and representation that the defendant had by his counsel of trial in this case. There simply isn’t any nexus between the alleged conflict and the trial and conviction in this case.
The sentencing hearing proceeded. At its conclusion, the district court sentenced Smith to 200 months imprisonment on each of the five trafficking offenses, all to run concurrently, and to 60 months on the firearms conviction, to commence thereafter.
II.
Smith raises numerous issues on appeal. His three principal contentions are that the district court’s supplemental jury instructions were erroneous and prejudicial, that the court erred in enhancing his sentence on the grounds of obstruction of justice, and that the court erred in denying his motion for a new trial for ineffective assistance of counsel. We will address these three arguments in order.
A.
Although Smith complains generally that the supplemental instructions offered on the conspiracy charge were “confusing,” “imbalanced,” and “prejudicial,” the gist of his argument focuses on the district court’s failure to repeat its initial admonition that “mere presence at the scene of a crime or
*646
transaction ... doesn’t mean that they are in a conspiracy.” Of course, Smith was not entitled to any particular language just because the court had used it in its initial instruction. Rather, in responding to a jury’s request for clarification on a charge, the district court’s duty is simply to respond to the jury’s apparent source of confusion fairly and accurately without creating prejudice.
United States v. United Medical and Surgical Supply Corp.,
It is apparent to us that the district court did not in this case abuse its discretion. While the court did omit its earlier reference to “mere presence,” it nonetheless adequately conveyed that the jury could not convict on the conspiracy charge unless the government proved beyond a reasonable doubt that Smith actually entered into an agreement with one or more other persons to possess and distribute crack cocaine. In particular, the court stated that
the government has to prove that the defendant and another person knowingly and willfully made an agreement, that they had a meeting of the minds to violate the law.
The agreement doesn’t have to be in writing. It doesn’t even have to be spoken out in precise terms. But they do have to agree, and mere similar conduct would not be an agreement if they didn’t come to an agreement.
Now, the fact that persons do things that are the same or that one person may know that another person is committing a crime doesn’t mean that you are in agreement with them, but if you enter into an agreement, if you have a meeting of the minds such that you both know what you are going to do, the nature and scope of the agreement, and that you do that knowingly and willfully and the purpose of the agreement is to violate the law, then that is a crime.
This was a fail’ and accurate statement of the law. Because Smith was not legally entitled to anything more, his challenge to the court’s supplemental instructions must fail.
B.
During sentencing the district court gave Smith a two-level obstruction-of-justiee enhancement under U.S.S.G. § 3C1.1 for committing perjury. Smith acknowledges that the Guidelines contemplate that a defendant’s commission of perjury qualifies as obstruction of justice, see U.S.S.G. § 3C1.1, application note 3(b) (1994), and that the Supreme Court has held such an, enhancement constitutional.
United States v. Dunnigan
,— U.S.-,
The definition of perjury under the Sentencing Guidelines is the same as that which obtains under the substantive federal criminal law. It contains three elements: (1) false testimony (2) concerning a material matter (3) given with the willful intent to deceive (rather than as a result of, say, confusion, mistake, or faulty memory).
Dunnigan,
— U.S. at-,
if a defendant objects to a sentence enhancement resulting from her trial testimony, a district court must review the evidence and make independent findings necessary to establish a willful impediment to or obstruction of justice, or an attempt to do the same, under the perjury definition we have set out.... When doing so, it is preferable for a district court to address each element of the alleged perjury in a separate and clear finding. The district court’s determination that enhancement is required is sufficient, however, if, as was the case here, the court makes a finding of an obstruction of justice that encompasses all of the factual predicates for a finding of perjury.
— U.S. at --,
In this case, Smith did object to the enhancement. When the sentencing court asked the government to justify its requested obstruction enhancement, the government responded by charging that Smith had perjured himself in three particulars: by “den[ying] any involvement at all in the offenses for which he was found guilty”; by denying that he had confessed to the offenses in August 1992 or July 1993; and by denying that the cash found at his trailer was the proceeds of drug trafficking. Afterwards, the court stated simply: “All right. Well, I will deny the objection to the increase for obstruction of justice.” J.A. 359-60. Clearly, the district court did not comply with the Supreme Court’s directive in
Dunnigan.
The court did not specifically find each of the three elements of perjury, as the Court deemed the “preferable” practice and as other district courts have done in Dunnigan’s wake.
See, e.g., United States v. Keith,
We are aware, of course, that remand in this ease might appear an empty formality. To be sure, the great likelihood is that the district court will reimpose the same sentencing enhancement after making the specific findings that
Dunnigan
requires. But that is not our judgment to make.
3
To ensure that imposition of a § 3C1.1 sentencing enhancement would not be automatic whenever the convicted defendant had exercised her constitutional right to testify in her own behalf at trial, the Supreme Court emphasized in
Dunnigan
that, “[w]hen contested, the elements of perjury must be found with the specificity we have stated.” — U.S. at-,
C.
Smith argues next that the district court erred in denying his motion for a new trial. Federal Rule of Criminal Procedure 33 provides in relevant part:
The court on motion of a defendant may grant a new trial to that defendant if required in the interest of justice.... A motion for a new trial based on the ground of newly discovered evidence may be made only before or within two years after final judgment.... A motion for a new trial based on any other grounds shall be made within 7 days after verdict or finding of guilty or within such further time as the court may fix during the 7-day period’.
Smith predicated his motion for a new trial on both “newly discovered evidence” and “other grounds.” Regardless of the heading, the substantive basis is the same—that the investigator’s potential conflict of interest rendered the performance of Smith’s trial counsel ineffective. The government argues that the district court lacked jurisdiction to hear Smith’s motion because it was filed out of time and, in the alternative, that the motion was properly denied on the merits.
Because the time limits set forth in Rule 33 are jurisdictional, see 3 Charles A. Wright, Federal Practice and Procedure § 558 n.1 (2d ed. 1982), it is clear that Smith’s motion was timely if it was properly predicated on “newly discovered evidence” and that it was out of time if it could only be justified “on other grounds.” Also, the government does not dispute, and we accept as true that Smith did not learn of Investigator Livingston’s employment with the Sheriffs department—and therefore of his attorney’s potential conflict of interest—until after trial. The question, then, is whether “newly discovered evidence” includes newly discovered information that would support an ineffective assistance claim.
In recently addressing this very question, we observed that “[ajlthough the Fourth Circuit has not ruled on the issue, the majority of Circuits have held that information giving rise to ineffective assistance claims does not constitute newly discovered evidence for purposes of Rule 33.”
United States v. Stockstill,
Because of the possibly ambiguous import of our decision in Stockstill, we expressly confirm today that information supporting an ineffective assistance claim is not “evidence” within the meaning of Rule 33 and, therefore, that a motion for a new trial predicated on ineffective assistance of counsel must be brought, if at all, within seven days of judgment regardless of when the defendant becomes aware of the facts which suggested to her that her attorney’s performance may have been constitutionally inadequate. A district court’s lack of power to entertain a Rule 33 motion alleging ineffective assistance of counsel filed after seven days from judgment is not dependent upon whether the record amassed by the time of the motion would permit satisfactory resolution by the district court and adequate review on appeal.
As the Fifth Circuit explained in
United States v. Ugalde,
1 Second, and without reference to the particular purposes actually underlying Rule 33, a defendant’s ability to raise her ineffective assistance claims in a collateral challenge under § 2255 makes it unnecessary that she also be afforded two years to advance the same claim by a motion for a new trial. This is especially true in light of the fact that ineffective assistance claims are governed by the same standard whether raised via a motion for new trial or on federal habeas.
Strickland v. Washington,
*650
Our only hesitation in concluding that Smith’s new trial motion was untimely arises from the fact that the slate in this circuit concerning the variety of claims that can support a new trial motion based on newly discovered evidence is not entirely blank. It is true, that we have never previously resolved the precise question at issue both here and in
Stockstill:
whether information giving rise to ineffective assistance claims can constitute newly discovered evidence for purposes of Rule 33., But we have addressed the broader question whether “newly discovered evidence” for purposes of Rule 33 is limited to evidence that would have been admissible at the recently concluded trial (as opposed tó evidence that might be admissible in a collateral proceeding challenging the fairness of the actual trial). In
Holmes v. United States,
Although it is not readily apparent why new trial motions based on a claim of jury tampering should qualify as motions based on “newly discovered evidence” while motions claiming ineffective assistance of counsel should not, 5 we do not believe that Holmes compels any particular result in this case. Importantly, Holmes did not purport to advance any general-test regarding when a new trial motion might qualify as one based on newly discovered evidence. Perhaps the jury tampering situation constitutes a sui generis exception to the generally persuasive principle that “newly discovered evidence” is> limited to evidence that.would be admissible at a trial on the merits. Ultimately, we believe that the result in Holmes does not undermine the result we reach today so much as the reasons for refusing to include claims of ineffective assistance as motions for new trial based on newly discovered evidence cast doubt on the wisdom of the result we reached in Holmes. Of course, the question whether a new trial motion for reason of improper jury contact may be treated as one based on newly discovered evidence, and therefore considered by the district court if filed after seven days from judgment, is not here presented.
Finally, in light of today’s holding, we briefly summarize the proper means of advancing ineffective assistance claims in this circuit. They are much the same as the Seventh Circuit recently elaborated in
United States v. Taglia,
After the period for new trial motions based on anything other than newly discovered evidence has expired, a new trial motion based on ineffective assistance of counsel will not lie, for, as we hold today, facts giving rise to an ineffective assistance claim do not count as “evidence” for purposes of Rule 33’s two-year time limit. Accordingly, a defendant who alleges ineffective assistance of counsel but fails to file a timely motion for a new trial is left with two options. We have repeatedly admonished that a defendant may raise her claim of ineffective assistance of counsel in the first instance on direct appeal if and only if it “conclusively appears” from the record that her counsel did not provide effective assistance. Otherwise, she must raise her claim in the district court by a collateral challenge pursuant to 28 U.S.C. § 2255, rather than in the appellate court by direct appeal.
United States v. Matzkin,
III.
For the foregoing reasons, we conclude that the supplemental jury instruction was proper. Additionally, we have considered Smith’s further assignments of trial error 6 and find ■ them to be without merit. We therefore affirm Smith’s conviction. We also hold that the district court lacked jurisdiction to entertain Smith’s motion for a new trial and, on that basis, affirm its denial of that motion. Because his motion for a new trial was untimely, Smith’s arguments concerning ineffective assistance of counsel because of conflict of interest are properly heard only in a separate proceeding seeking collateral relief pursuant to 28 U.S.C. § 2255. Lastly, we conclude that the district court did not make sufficient factual findings of perjury to support its imposition of a two-level sentencing enhancement for obstruction of justice. We vacate the sentence imposed and remand for resentencing.
SO ORDERED.
Notes
. The government argues that because Smith failed to object below to the supplemental instructions we may not reverse unless the instructions constituted plain error. Fed.R.Crim.P. 52(b). Smith responds, in essence, that his failure to object should be excused because he "was not given the opportunity to object" that, he claims, Fed.R.Crim.P. 30 requires. We have noted before that "Rule 30 is not implicated every time a trial judge comments in response to a jury inquiry or clarifies a previous instruction,”
Horton,
. The district court in
Dunnigan
had explicitly stated that it "finds that
the defendant was untruthful at trial with respect to material matters
in this case. [B]y virtue of her failure to give truthful testimony on material matters
that were designed to substantially affect the outcome of the case,
the court concludes that the false testimony at trial warrants an upward adjustment by two levels." - U.S. at -,
. Even where, here as in
Dunnigan,
see-U.S. at-,
. While noting our agreement with the Fifth Circuit, we should also acknowledge that the consensus among the circuits is perhaps not as great as we indicated in
Stockstill.
While it is true that all the cases cited in
Stockstill
held Rule 33 motions based on alleged ineffective assistance of counsel time-barred, all but
Ugalde
strongly emphasized that the factual bases for the ineffective assistance argument were
not
newly discovered.
See United States v. Laird,
. In
Ugalde,
Whatever the soundness of that explanation in other circuits, we are skeptical that it accounts for our decision in
Holmes.
We have often recognized that a claim of jury tampering implicates the Sixth Amendment right to an impartial jury and therefore
is
cognizable on habeas corpus,
see, e.g., Stockton v. Virginia,
. Smith's additional arguments are that the district court erred in admitting into evidence the cocaine seized in July 1993 on the grounds that there may have been a break in the chain of custody, that the evidence was insufficient to sustain a guilty verdict, and that the district court erred in calculating the amount of cocaine for purposes of sentencing.