                  NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                             File Name: 11a0477n.06
                                                                                          FILED
                                           No. 09-4211
                                                                                      Jul 12, 2011
                          UNITED STATES COURT OF APPEALS                       LEONARD GREEN, Clerk
                               FOR THE SIXTH CIRCUIT

UNITED STATES OF AMERICA,                     )
                                              )
       Plaintiff-Appellee,                    )
                                              )   ON APPEAL FROM THE UNITED
v.                                            )   STATES DISTRICT COURT FOR THE
                                              )   NORTHERN DISTRICT OF OHIO
DOUGLAS ANTHONY DALE                          )
                                              )
       Defendant-Appellant.                   )
                                              )


       Before: ROGERS and KETHLEDGE, Circuit Judges; RUSSELL, Chief District Judge.*

       RUSSELL, Chief District Judge. On this direct appeal, Defendant-Appellant Douglas

Anthony Dale seeks an order vacating his convictions and remanding the case for a new trial on the

basis of ineffective assistance of counsel. Because we find that Dale’s request for relief would be

better presented in a post-conviction motion to vacate under 28 U.S.C. § 2255, we affirm Dale’s

convictions without prejudice to such a motion.

       Dale filed for bankruptcy on October 4, 2005, and received a discharge in the amount of

$112,720.29. On January 29, 2009, a federal grand jury issued a five-count Indictment against Dale

for allegedly engaging in fraudulent conduct during his bankruptcy proceedings. An eight-count

Superseding Indictment was filed on March 25, 2009, charging Dale with bankruptcy fraud in

violation of 18 U.S.C. § 157(1) (Count I), making false declarations in bankruptcy in violation of



       *
          The Honorable Thomas B. Russell, Chief United States District Judge for the Western
District of Kentucky, sitting by designation.
No. 09-4211
United States v. Dale

18 U.S.C. § 152(3) (Counts II, III, IV, V, and VI), making false oaths in bankruptcy in violation of

18 U.S.C. § 152(2) (Count VII), and concealment of assets in violation of 18 U.S.C. § 152(1) (Count

VIII). Prior to trial, the district court granted the government’s motion to dismiss Count VI.

       Dale’s trial for bankruptcy fraud began on May 19, 2009. At trial, the government’s evidence

focused primarily on Dale’s interests in Canton Realty, a corporation established in 1992. Dale’s

alleged ownership interests in Canton Realty were not disclosed during his bankruptcy proceeding

and the government argued that Dale attempted to camouflage these interests to defraud both his

creditors and the mother of his child. Specifically, Count I alleged that Dale filed for bankruptcy to

execute or conceal a scheme to defraud the mother of his child regarding his child support

obligations. The jury heard testimony about Dale’s child support arrearage, disclosures during the

child support proceedings, and a settlement agreement between Dale and the mother of his child.

One of the witnesses also suggested that Dale faked a disability to avoid employment. The

government’s remaining evidence sought to establish that Dale violated 18 U.S.C. § 152 by

concealing from the bankruptcy trustee and his creditors his correct address, ownership of real

property, ownership of Canton Realty, and a favorable money judgment.

       At the close of evidence, Dale’s trial counsel moved for judgment of acquittal, which the

district court denied. The jury convicted Dale on Counts I, II, III, IV, V, VII, and VIII of the

Superseding Indictment on May 21, 2009. Dale’s counsel renewed his motion for judgment of

acquittal following the jury’s verdict. The district court granted in part and denied in part this

motion, entering judgment of acquittal with respect to Count I based upon insufficiency of the

evidence. The district court noted there was insufficient evidence to find that Dale initiated his

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No. 09-4211
United States v. Dale

bankruptcy proceeding for the purpose of executing or concealing a scheme to defraud the mother

of his child. The district court denied the motion for judgment of acquittal as to the remaining

counts and sentenced Dale to 21 months’ imprisonment with three years of supervised release. Dale

appeals the district court’s judgment, arguing that trial counsel’s failure to file a motion for a new

trial following the district court’s judgment of acquittal as to Count I of the Superseding Indictment

violated his Sixth Amendment right to counsel.

       “The usual rule is that a defendant may not raise claims for ineffective assistance of counsel

on direct appeal.” United States v. Sullivan, 431 F.3d 976, 986 (6th Cir. 2005) (citing United States

v. Williams, 176 F.3d 301, 312 (6th Cir. 1999)). Instead, appellants should raise such claims in a

post-conviction proceeding under 28 U.S.C. § 2255, thus allowing the parties to develop an adequate

record. Id. (quoting United States v. Barrow, 118 F.3d 482, 494 (6th Cir. 1997)). “If the parties

have adequately developed the record, however, the court can elect to hear the issue on direct

appeal.” United States v. Pierce, 62 F.3d 818, 833 (6th Cir. 1995) (citations omitted). We review

de novo claims of ineffective assistance of counsel when they present mixed questions of law and

fact. United States v. Wagner, 382 F.3d 598, 615 (6th Cir. 2004).

       Strickland v. Washington, 466 U.S. 668 (1984), established a two-pronged inquiry for

ineffective assistance of counsel claims:

       First, the defendant must show that counsel’s performance was deficient. This
       requires showing that counsel made errors so serious that counsel was not
       functioning as the “counsel” guaranteed the defendant by the Sixth Amendment.
       Second, the defendant must show that the deficient performance prejudiced the
       defense. This requires showing that counsel’s errors were so serious as to deprive the
       defendant of a fair trial, a trial whose result is reliable.


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No. 09-4211
United States v. Dale

Id. at 687. A defendant must satisfy both prongs. Id. Failure to satisfy either prong defeats an

ineffective assistance of counsel claim. Id. at 700. Dale argues that his trial counsel’s failure to

move for a new trial on the basis of prejudicial spillover constitutes ineffective assistance of counsel.

He asserts that evidence of his child support proceedings would have been inadmissible in the

absence of Count I, and that the jury improperly utilized this evidence in reaching a guilty verdict

on all counts. Dale also believes the prosecution used pejorative language to incite the jury and

encouraged the jury to commingle the evidence. Because of this spillover effect, Dale believes he

would have been entitled to a new trial, and that he was therefore prejudiced by his attorney’s failure

to request one.

        “Claims of retroactive, or prejudicial misjoinder only succeed when ‘the defendant makes

a showing of compelling prejudice’ or ‘the prosecutor acted in bad faith in bringing the initial . . .

charge.’” Goldsby v. United States, 152 F. App’x 431, 439 (6th Cir. 2005) (quoting United States

v. Warner, 690 F.2d 545, 554 (6th Cir. 1982)). The defendant bears a very heavy burden of showing

prejudicial misjoinder. Id.; United States v. Deitz, 577 F.3d 672, 693 (6th Cir. 2009). In determining

whether a defendant suffered prejudice, courts consider such factors as whether spillover evidence

would incite or arouse the jury to convict on the remaining counts, whether the evidence was

intertwined, the similarities and differences between the evidence, the strength of the government’s

case, and the ability of the jury to separate the evidence. See, e.g., United States v. Rooney, 37 F.3d

847, 855-56 (2d Cir. 1994); United States v. Pelullo, 14 F.3d 881, 898-99 (3d Cir. 1994); United

States v. Murphy, 836 F.2d 248, 256 (6th Cir. 1988).



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No. 09-4211
United States v. Dale

       In this case, Dale presents a reasonable argument for a finding of prejudice, but we believe

the issue is best left to the trial judge to develop an adequate record and to determine whether the

government acted in bad faith or whether Dale suffered compelling prejudice. By seeking relief

under 28 U.S.C. § 2255, Dale’s claims will be heard by the trial judge who witnessed trial counsel’s

performance and who is in the best position to determine whether Dale would have been granted a

new trial. See Massaro v. United States, 538 U.S. 500, 506 (2003) (“The judge, having observed the

earlier trial, should have an advantageous perspective for determining the effectiveness of counsel’s

conduct and whether any deficiencies were prejudicial.”). A motion to vacate at the district court

level will also allow additional factual development and insight into counsel’s performance. See id.

at 505; United States v. Moran, 393 F.3d 1, 10 (1st Cir. 2004).

       For the foregoing reasons, we affirm Dale’s convictions without prejudice, subject to Dale’s

raising his claim in a post-conviction motion to vacate under 28 U.S.C. § 2255.




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