UNITED STATES of America, Plaintiff-Appellee, v. Neville LYIMO, Defendant-Appellant.
No. 13-4350.
United States Court of Appeals, Sixth Circuit.
July 28, 2014.
For these reasons, we AFFIRM the district court‘s grant of summary judgment to Defendant.
MALONEY, Chief District Judge.
A jury convicted Defendant-Appellant Neville Lyimo of ten counts of aiding and assisting in the filing of a false income tax return, in violation of
Lyimo raises two issues in this appeal. First, he argues that the district court erred by quashing the DeWeese subpoena. Second, Lyimo asserts that the district court erred when it denied his motion for a new trial under
I.
While operating NetASk Tax Service, Neville Lyimo assisted a number of African immigrants in preparing their tax returns. In June 2011, a grand jury in the Southern District of Ohio issued a twenty-seven-count indictment alleging that Lyimo aided in the preparation of false tax returns for sixteen clients from 2004 through 2007 by inflating credits, claiming inapplicable deductions, and miscategorizing taxpayers’ filing statuses. At the jury trial on seventeen of the counts, six witnesses testified that Lyimo incorrectly prepared their tax returns. The witnesses were all recent African immigrants and most admitted they were present in the United States illegally at some point.
To challenge the credibility of the Government‘s witnesses, Lyimo sought to introduce testimony concerning immigration laws from David DeWeese, a federal employee who was not involved in the investigation of this case. A general subpoena was sent directly to DeWeese, requesting that he or another agent testify concerning student and other visas. Lyimo‘s counsel noted later that the purpose of this testi
The Government moved to quash the subpoena compelling DeWeese‘s testimony. It argued that Lyimo failed to follow the subpoena requirements for DHS employees, which require that the subpoena be served on the Office of General Counsel and that it describe with specificity the information sought. See
A jury found Lyimo guilty on ten counts of aiding or assisting in the filing of a false income tax return but acquitted him on seven other counts. Then, Lyimo filed a motion for judgment of acquittal and a motion for a new trial under
Now, Lyimo appeals the district court‘s decisions to quash the DeWeese subpoena and deny the
II.
Federal agencies are authorized by
In this case, Lyimo chose not to comply with these subpoena regulations and instead issued a general subpoena directly to DeWeese. Now, he argues that the subpoena requirements violate his Fifth and Sixth Amendment rights by creating one-sided discovery in favor of the government and infringing on his ability to present a defense.
We cannot reach the merits of Lyimo‘s constitutional arguments because he did not comply or attempt to comply with the subpoena regulations. The law of this circuit requires a defendant to follow the appropriate Touhy procedures and have his or her demand denied before questions about the constitutionality of the procedures may be entertained. See United States v. Marino, 658 F.2d 1120, 1125 (6th Cir. 1981) (barring a Sixth Amendment claim because defendants failed to make the required demand to FBI and U.S. Marshals Office). Other circuit courts of appeals have likewise held that the failure to comply with subpoena regulations forecloses later challenges to these requirements. See Soriano-Jarquin, 492 F.3d at 504 (“[T]he defendant made no attempt whatsoever to comply with the DHS regulations. Given this, he can hardly be heard to complain that the regulations caused him injury.“); see also United States v. Wallace, 32 F.3d 921, 929 (5th Cir. 1994) (“Because the defendants failed to make a timely demand in accordance with the required procedure set out in
We are not persuaded by the Ninth Circuit‘s 2-1 decision in United States v. Bahamonde, 445 F.3d 1225 (9th Cir. 2006), cited by Lyimo. In Bahamonde, the defendant was allowed to raise a Fifth Amendment challenge despite his noncompliance with the subpoena regulations because he alleged that the procedure created a discovery imbalance in favor of the government. Id. at 1230-31. Bahamonde, like Lyimo, argued that the procedures impermissibly required him to reveal the substance of the government agent‘s testimony sought without requiring the govern
However, material factual differences exist between Bahamonde and the present case. In Bahamonde, the defendant sought the testimony of an agent who “attended the entire trial, sat next to the prosecutor at the prosecutor‘s table, assisted him throughout, and was listed on the government‘s witness list.” 445 F.3d at 1228. Thus, there were obvious reasons to believe that the information in a subpoena to that agent would be revealed to the prosecution, creating unequal discovery. However, in Marino and the present case, testimony was sought from agents who worked in departments not involved in the investigation or prosecution of the case. See Marino, 658 F.2d at 1125 (seeking testimony from FBI and U.S. Marshals about witness protection program to impeach witnesses in a case investigated by DEA).
Here, DeWeese works within the DHS and had no involvement in Lyimo‘s case until he was subpoenaed to testify. He did not assist the prosecutor, sit at the prosecution‘s table throughout the trial, or testify for the government. For these reasons, there is no indication that the information that was required to be included on the subpoena would have been shared with the prosecution. Thus, the Ninth Circuit‘s concern with forcing compliance with the regulations before a challenge can be heard—that the government would still get the benefit of the defendant‘s disclosures—is not an issue here. Accordingly, there is no reason to excuse Lyimo‘s failure to comply with the subpoena requirements. The holding in Marino applies to bar Lyimo‘s Fifth and Sixth Amendment claims here. Lyimo cannot raise his constitutional claims challenging the federal regulations that govern subpoenas of DHS employees because he did not attempt to comply with the required procedures.
III.
Next, Lyimo argues that the district court erred in denying his post-verdict motion for a new trial. When faced with a motion for a new trial under
A district court‘s decision on a motion for a new trial is reviewed for abuse of discretion. United States v. Fullerton, 187 F.3d 587, 592 (6th Cir.1999). The appeals court does not reweigh evidence or judge credibility. United States v. Ashworth, 836 F.2d 260, 266 (6th Cir.1988). On appeal, this Court only determines whether the district court‘s decision was a clear and manifest abuse of discretion. Id.
In its opinion denying Lyimo‘s motion for a new trial, the district court wrote:
There is no doubt that most of the witnesses who testified in this matter had some issues involving their immigration status. However, those witnesses admitted to their illegal immigration issues and the jury obviously chose to believe their testimony as it related to Defendant and his acts that formed the basis of the charges. The fact that the jury attached credibility to the testimony of those witnesses is not a miscarriage of justice. It is simply the prerogative of the jury. Defendant will not be heard to complain about credibility issues when the testimony of all the witnesses provided a sufficient basis to find Defendant guilty.
R. 133, PgID # 2058.
Lyimo has not demonstrated any specific problems or conflicts so egregious or extraordinary to demonstrate that the district court abused its discretion by denying the motion for a new trial. See Lutz, 154 F.3d at 589. The verdicts against Lyimo were not unreasonable simply because he questions the taxpayers’ credibility or because he created an alternative explanation for the incorrect tax returns. Porter v. Lima Mem. Hosp., 995 F.2d 629, 635 (6th Cir.1993) (“[T]he verdict should not be considered unreasonable simply because different inferences could have been drawn or because other results are more reasonable.“). The jury had all of the information concerning the witnesses’ credibility. They were “free to draw inferences, assess witnesses’ credibility, and interpret evidence for or against” Lyimo. United States v. Harris, 200 Fed.Appx. 472, 503 (6th Cir.2006). The district court did not clearly abuse its discretion when it reweighed the witnesses’ credibility and the evidence presented at trial and determined that no error occurred. Lyimo has not established that the evidence preponderates heavily against the verdicts in this case, so the district court correctly denied him the extraordinary remedy of a new trial.
IV.
For the reasons set out above, we AFFIRM the decision of the district court and Lyimo‘s conviction.