                NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                            File Name: 05a0899n.06
                           Filed: November 15, 2005

                                    Nos. 04-5544 and 04-6385

                          UNITED STATES COURT OF APPEALS
                               FOR THE SIXTH CIRCUIT


UNITED STATES OF AMERICA,                        )
                                                 )
                                                 )
       Plaintiff-Appellee,                       )
                                                 )
v.                                               )    ON APPEAL FROM THE UNITED
                                                 )    STATES DISTRICT COURT FOR THE
HOWARD ZIMMERMAN,                                )    WESTERN DISTRICT OF TENNESSEE
                                                 )
       Defendant-Appellant.                      )




       Before: COLE, ROGERS, and McKEAGUE, Circuit Judges
       Rogers, Circuit Judge. This is a consolidated appeal. Defendant-Appellant Howard

Zimmerman appeals two decisions by the district court: (1) its judgment sentencing him to 41

months imprisonment for child pornography-related convictions; (2) its order denying his motions

for a new trial, for an evidentiary hearing, and for an order compelling the government to produce

evidence. More specifically, as to the sentence of 41 months, Zimmerman argues that Blakely v.

Washington forbids a two-level enhancement of his sentence due to the prepubescent status of some

of the girls depicted in the child pornography in question. 542 U.S. 296 (2004). As to the order

denying Zimmerman’s motions, Zimmerman seeks a new trial based on the discovery of new

evidence and the ineffective assistance of counsel. He also seeks an evidentiary hearing and to have

a copy of his hard drive made available to him to develop further evidence.
Nos. 04-5544 and 04-6385
United States v. Zimmerman

       We vacate Zimmerman’s sentence and remand the case for resentencing in light of United

States v. Booker, 125 S. Ct. 738 (2005). Regarding the district court’s denial of Zimmerman’s

motions, we find no abuse of discretion and therefore affirm the district court’s order. We affirm

the district court’s denial of Zimmerman’s motion for a new trial based on the ineffective assistance

of counsel, however, only because this claim would be best brought pursuant to a habeas petition

under 28 U.S.C. § 2255. Zimmerman is free to do so.


                                                 I.


       On September 25, 2002, Howard Zimmerman was indicted on eight felony counts related

to child pornography pursuant to 18 U.S.C. §§ 2256; 2252(a)(2); 2252(a)(4)(B). At his trial, the jury

convicted Zimmerman of six of the eight counts and acquitted him of two counts. The court

sentenced Zimmerman to imprisonment for 41 months and two years of supervised release, and

ordered him to pay a fine of $600.00.


       At trial, Jennifer Zimmerman, the defendant’s ex-wife, testified that she and Zimmerman

acquired a Dell computer in January 1999. Owing to problems in their marriage, Jennifer and

Zimmerman separated on September 4, 2001. Zimmerman moved out of the house, where the Dell

computer was located, but he had access to the Dell computer when he visited.


       As her relationship with Zimmerman deteriorated further, Jennifer purportedly decided to

search the Dell computer for Zimmerman’s financial information. Because Jennifer knew little

about computers, she asked her friend Ira Morris, who works with computers, to come over to the

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United States v. Zimmerman

house and help her search the Dell computer on November 25 and 26, 2001. During their inspection

of the computer, Jennifer testified, they discovered child pornography on the computer and on a zip

disk nearby. Jennifer and Morris deny ever transferring or downloading anything onto the Dell

computer the night they claim to have discovered the child pornography on it and the zip disk.


       Jennifer and Morris turned the computer over to Jennifer’s divorce lawyer, who in turn gave

it to computer expert Jonathan Turner for analysis, who in turn gave it to the FBI. The FBI opened

a criminal investigation of Zimmerman. At trial the government called FBI Special Agent Scott

Ledford to testify about a voluntary interview that Ledford and other agents conducted with

Zimmerman. Ledford said that Zimmerman “admitted that he had in fact used the computer and

downloaded child pornography via the Internet at home.”


       According to Ledford, Zimmerman said that his activities downloading child pornography

were “in conjunction with the work that he did for a company called Bay TSP,” that was supposedly

developing digital fingerprints for computer files that would enable law enforcement to locate child

pornography. Ledford also said that Zimmerman admitted to placing these types of pornographic

files into a zip file and to password-protecting them. The agents asked Zimmerman for the

passwords to two password-protected zip files found under his profile on the Dell computer. “After

a few failed attempts, Mr. Zimmerman was able to supply a password for those files. And after

opening several of them, they depicted children engaged in sexually explicit conduct.” According

to Ledford, the agents asked Zimmerman “if he was responsible for the images that were placed on

the computer, and he admitted that he was.”

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United States v. Zimmerman
       Zimmerman presented very little evidence in his case in chief. Steve Farese, Zimmerman’s

discharged criminal defense lawyer who had attended the FBI interview, testified that Zimmerman

had provided the correct password to the zip files only after going “through a litany of passwords.”

Farese further said that in the interview Zimmerman had denied intentionally downloading child

pornography. Farese conceded that Zimmerman admitted to downloading some child pornography,

but added that Zimmerman claimed that he deleted it. Zimmerman also called a character witness

who said that in his opinion Morris “is somewhat untruthful at times.” Zimmerman presented little

other evidence worthy of note.


       Following his conviction, through his primary trial counsel Jacob E. Erwin, Zimmerman

moved for a new trial based on the ineffective assistance of his trial counsel Jacob E. Erwin. In

other words, Erwin represented Zimmerman for the motion for a new trial based on his own

ineffective assistance of Zimmerman. The district court denied this motion on the merits.


        Zimmerman also moved for a new trial based on the discovery of new evidence, and moved

to require the government to produce evidence. Zimmerman claims that he has discovered new

evidence that so powerfully indicates his innocence that he should be tried again. He points to the

following three developments:


       First, after the trial on April 18, 2004, Dell Computer Co. informed Zimmerman that it

shipped the Dell computer to him on January 15, 1999. This fact weighs in favor of ordering a new

trial, according to Zimmerman, because some of the images, cited in the indictment, that were



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United States v. Zimmerman
supposedly downloaded onto the Dell computer predate the existence of the computer. Appellant’s

Br. at 6.


         Second, after the trial Zimmerman hired computer expert Lyle Caldwell, who examined

printed directory listings and log files from Zimmerman’s computer. Caldwell claims in his report

that many of the pornographic images on the Dell computer could not have been downloaded to it

from the internet because their creation times and dates were “sequentially so close in time to one

another,” that they could have only been transferred from a “ZIP file or transferred from a CD-ROM

or another computer’s hard drive.” Caldwell further claims that the files were placed on the Dell

computer “on November 25 and 26, 2001, as shown by the printed WinZip program activity log.”

Zimmerman “was not in the residence” on these days but Jennifer and Morris were there, according

to their own testimony, when they allegedly discovered child pornography. Caldwell infers from

this that “Jennifer Zimmerman and Ira Morris created these files and were aware of their

pornographic and illegal content.”


         Third, after the trial a friend of Zimmerman’s told him that a former employee of

Zimmerman’s named Matthew Smith obliquely admitted on his personal website to placing

“goodies” on Zimmerman’s computer for the authorities to find. The portion of the site purportedly

dealing with Zimmerman includes bizarre stories that blend truth with fantasy. This website

apparently refers to Zimmerman as “Pederastputin.” Zimmerman wrote in his motion for a new

trial:




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United States v. Zimmerman
               In what seems to be a stark admission of guilt to the charges contained in this
       indictment, as well as a revelation of his motive of revenge because of the prior
       business disputes with the defendant, Smith writes in the “Pederastputin Auditions”
       section:
               Due to a serious error on the part of the inebriated casting director,
               Pederastputin was scheduled to appear on an episode of Xena -
               Warrior Princess. Pederastputin made it as far as the initial casting
               call before they told him, sadly, to go home because the authorities
               found the goodies I left for them on the computer. I guess I will
               never get any money from him but I did get even.
       (emphasis added).
               Perhaps even more telling is that Smith has recently removed the emphasized
       words in the website entry, and the paragraph now ends with “. . . told him, sadly, to
       go home.” The fact that he removed the language shows a clear consciousness of
       guilt and a desire to conceal his admission on the website.
Zimmerman argues that these developments present new, material evidence of his innocence that

could not have been previously uncovered by due diligence and would likely produce an acquittal.


       The district court enhanced Zimmerman’s sentence two levels because, according to the

Presentence Report, the offense involved a prepubescent minor. See U.S.S.G. § 2G2.2(b)(1) (2000).

The district court added two more levels because a “computer was used for the transmission for the

material.” See U.S.S.G. § 2G2.2(b)(5) (2000). The jury never found that any of the minors depicted

in any of the pornographic images were prepubescent.


                                                 II.


       The district court properly denied Zimmerman’s motion for a new trial based on the

discovery of new evidence. The evidence he used to support his motion could have been uncovered

previously through due diligence, is cumulative, or is unlikely to produce an acquittal.


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United States v. Zimmerman
        Federal Rule of Criminal Procedure 33 allows the district court, upon the defendant’s motion,

to “vacate any judgment and grant a new trial if the interest of justice so requires.” A district court’s

denial of a defendant’s motion for a new trial will be overturned on appeal only if the defendant

shows that the district court abused its discretion. See United States v. Anderson, 76 F.3d 685, 692

(6th Cir. 1996).


        To justify ordering a new trial based the discovery of new evidence, “the defendant must

show that: (1) the new evidence was discovered after trial; (2) the evidence could not have been

discovered with due diligence; (3) the evidence is material and not merely cumulative or

impeaching; and (4) the evidence would likely produce an acquittal.” United States v. Garcia, 19

F.3d 1123, 1126 (6th Cir. 1994) (citing United States v. Hawkins, 969 F.2d 169, 175 (6th Cir.

1992)). No such evidence exists in this case. The district court therefore did not abuse its discretion

when it denied Zimmerman’s motion for a new trial based on the discovery of new evidence.


        Zimmerman offers three pieces of new evidence: first, the exact shipment date of the Dell

computer (January 15, 1999) as supplied by Dell Computer Co.; second, a report by computer expert

Lyle Caldwell based on printed directory listings and log files from the Dell computer; third, a

website by a disgruntled former employee who purportedly boasted about putting “goodies” on

Zimmerman’s computer.


        The shipment date of the Dell computer, discovered by Zimmerman after the trial, is

cumulative evidence because Zimmerman’s ex-wife Jennifer testified at trial that the Dell computer



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United States v. Zimmerman
had been acquired in January 1999. Jennifer confirmed this month and year information when

Zimmerman’s attorney supplied it to her on cross examination. Therefore, the precise shipping day

as supplied by Dell cannot justify ordering a new trial.


       The conclusions of Zimmerman’s new computer expert, Lyle Caldwell, could have been

reached previously with due diligence because Caldwell merely analyzed old printed directory

listings and log files that were available to the defense before and throughout the trial. Zimmerman

essentially concedes that he had access to the information Caldwell analyzed before and during the

trial. Any conclusion Caldwell could reach now necessarily could have been reached before the

trial through the exercise of due diligence.


       The portions of Matthew Smith’s website that boast about putting “goodies” on

“Pedersastputin’s” computer for the authorities to find would not likely produce an acquittal. The

website in question mixes grotesque fantasy with fact in a manner that is unlikely to cast reasonable

doubt on the reliability of evidence tending to prove Zimmerman’s guilt. According to the

government’s witnesses, Zimmerman confessed to the FBI in a voluntary interview to downloading

child pornography, putting it in zip files, and password-protecting it. He also, according to the same

witnesses, took responsibility for whatever child pornography was on the Dell computer and

supplied the password that opened password-protected files containing child pornography. It is

difficult to imagine a jury giving enough weight to Smith’s largely fantastical website to cast

reasonable doubt on the incriminating events in Zimmerman’s interview.




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Nos. 04-5544 and 04-6385
United States v. Zimmerman
       Zimmerman is not entitled to a new trial based on the discovery of new evidence because

the evidence he has offered could have been uncovered previously with the exercise of due

diligence, is cumulative, or would not likely produce an acquittal.


                                                III.


       The district court properly denied Zimmerman’s motion for a new trial based on the

ineffective assistance of counsel, although it should have done so without reaching the motion’s

merits. As a general matter, an ineffective assistance of counsel claim should be brought pursuant

to a habeas petition under 28 U.S.C. § 2255. See United States v. Daniel, 956 F.2d 540, 543 (6th

Cir. 1992); see generally Massaro v. United States, 538 U.S. 500, 504-05 (2003) (“In light of the

way our system has developed, in most cases a motion brought under § 2255 is preferable to direct

appeal for deciding claims of ineffective-assistance.”). The district court’s denial of Zimmerman’s

motion was correct because Zimmerman should have brought his claim pursuant to a § 2255

petition. He is free to do so.


                                                IV.


       The district court also did not abuse its discretion when it denied Zimmerman’s request for

an evidentiary hearing. Zimmerman requested such a hearing to develop evidence that might

support his request for a new trial. Zimmerman was not entitled to such an evidentiary hearing

because “he utterly failed to demonstrate that any of his alleged potential defense witnesses or any

of the documents could conceivably have helped” his motions. See United States v. Ford, No.


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United States v. Zimmerman
92-1066, 1993 U.S. App. LEXIS 4106, at *9 (6th Cir. Feb. 24, 1993).


       Zimmerman argues, however, that the Dell computer shipping date, Caldwell’s report, and

Matthew Smith’s website together required the district court to hold an evidentiary hearing because

they “squarely and gravely infused a doubt into the finding of” Zimmerman’s guilt, or raised “a

clear-cut issue of fact.” United States v. Mitchell, 602 F.2d 636, 637 (4th Cir. 1979) (squarely

infused doubt); United States v. Roberts, 388 F.2d 646, 649 (2d Cir. 1968) (clear-cut issue of fact).

Zimmerman misapplies these two cases. In Mitchell and Roberts, sworn affidavits raised doubts as

to the defendant’s guilt. Mitchell, 602 F.2d at 637; Roberts, 388 F.2d at 649-50. In Mitchell, the

Fourth Circuit ordered the district court to hold an evidentiary hearing so that the declarant named

in the affidavit could be fully questioned. See 602 F.2d at 637.


       In this case, Caldwell’s report infuses some doubt into the finding of Zimmerman’s guilt.

Unfortunately for Zimmerman, this evidence cannot justify ordering an evidentiary hearing because

it could have been discovered previously with due diligence. Smith’s website, on the other hand,

is far from a sworn affidavit. It makes no sober assertions of fact that would justify bringing Smith

into court the way a sworn affidavit merited the questioning of the Mitchell declarant. It therefore

fails to raise a clear-cut issue of fact that demands an evidentiary hearing. Consequently,

Zimmerman is not entitled to an evidentiary hearing and the district court properly denied his

request.




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United States v. Zimmerman
                                                 V.


       The district court also properly denied Zimmerman’s motion to compel the government to

produce evidence, because he merely wants the government to produce an “accurate copy” of the

very same Dell computer hard drive that he had ample opportunity to examine in the past. Any new

evidence he gleans from such discovery could have been uncovered previously through the exercise

of due diligence. Whatever evidence he finds could not justify ordering a new trial based on the

discovery of new evidence. The district court did not abuse its discretion, therefore, when it denied

Zimmerman’s motion.


                                                VI.


       As for Zimmerman’s sentence enhancement due to the prepubescent status of the girls

depicted in some of the pornographic images, the sentencing guidelines applied by the district court

have been held to be advisory rather than mandatory. See United States v. Booker, 125 S. Ct. 738

(2005). Zimmerman’s sentence must therefore be reconsidered in light of Booker. See United

States v. Oliver, 397 F.3d 369, 377 & n.1 (6th Cir. 2005).


                                                VII.


       We AFFIRM the district court’s denial of Zimmerman’s motions and its denial of his request

for an evidentiary hearing, but VACATE his sentence and REMAND the case to the district court

for resentencing.



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