                   FOR PUBLICATION

  UNITED STATES COURT OF APPEALS
       FOR THE NINTH CIRCUIT


UNITED STATES OF AMERICA,               No. 12-30005
           Plaintiff-Appellee,
                                           D.C. No.
              v.                    2:10-cr-00148-BLW-1

EDGAR J. STEELE,
         Defendant-Appellant.               OPINION


      Appeal from the United States District Court
                for the District of Idaho
    B. Lynn Winmill, Chief District Judge, Presiding

                 Argued and Submitted
            July 8, 2013—Portland, Oregon

                   Filed October 24, 2013

      Before: Harry Pregerson, Mary H. Murguia,
        and Morgan Christen, Circuit Judges.

              Opinion by Judge Christen
2                   UNITED STATES V. STEELE

                           SUMMARY*


                          Criminal Law

    Affirming the district court’s order denying a criminal
defendant’s motion for new trial, the panel held that although
consideration of a pre-judgment ineffective-assistance-of-
counsel claim is appropriate in some cases, the district court
did not abuse its discretion here by deferring consideration of
the defendant’s ineffective assistance claim to collateral
review, when a complete record would be available.


                            COUNSEL

Dennis P. Riordan (argued); Donald M. Horgan, Riordan &
Horgan, San Francisco, California, for Defendant-Appellant.

Syrena C. Hargrove (argued); Wendy J. Olson, United States
Attorney, Boise, Idaho, for Plaintiff-Appellee.


                             OPINION

CHRISTEN, Circuit Judge:

    This opinion considers when a trial court should
determine the merits of an ineffective assistance of counsel
claim presented in a pre-judgment motion for a new trial. A


  *
    This summary constitutes no part of the opinion of the court. It has
been prepared by court staff for the convenience of the reader.
                     UNITED STATES V. STEELE                               3

federal jury convicted Edgar Steele of murder-for-hire and
victim tampering arising from Steele’s plan to kill his wife
and mother-in-law.1 Steele argues that the district court erred
by denying his pre-judgment motion for new trial without
reaching the merits of his claim of ineffective assistance of
trial counsel. Although consideration of a pre-judgment
ineffective-assistance-of-counsel claim is appropriate in some
cases, here the district court did not err by deferring
consideration of Steele’s ineffective assistance claim to
collateral review, when a complete record would be
available.2

   We have jurisdiction over this appeal pursuant to
28 U.S.C. § 1291, and we affirm the district court’s order
denying the motion for new trial.

I. BACKGROUND

    According to the evidence presented by the government
at trial, Larry Fairfax worked as Edgar Steele’s handyman
and Steele, himself a criminal defense attorney, hired Fairfax
to kill Steele’s wife and mother-in-law. The government
presented evidence that Steele instructed Fairfax to create two
pipe bombs and place one on his wife’s car and the other, as
a decoy, on his own car so that Steele would look like an
intended victim. Fairfax created the pipe bombs and installed

  1
    Steele was convicted of violating 18 U.S.C. § 1958 (use of interstate
commerce facilities in the commission of murder-for-hire), 18 U.S.C.
§ 844(h) (use of explosives to commit a federal felony), 18 U.S.C.
§ 924(c)(1)(B)(ii) (possession of a destructive device in relation to a crime
of violence), and 18 U.S.C. § 1512(b) (tampering with a victim).
   2
     We address Steele’s other claims in an unpublished memorandum
disposition filed concurrently with this opinion.
4                   UNITED STATES V. STEELE

them so the cars’ exhaust pipes would serve as the ignition
sources, but the device on Cyndi Steele’s car failed to
explode. At Steele’s behest, Fairfax investigated what
happened and erroneously concluded that the bomb had fallen
off. He then dismantled the decoy bomb and removed it from
Steele’s car. But Steele was not ready to shelve his plans. He
threatened to hire another hitman and add Fairfax to the list
of targets if Fairfax did not follow through with the killings.

    This threat appears to have backfired. Instead of going
through with a second murder attempt, Fairfax turned to the
FBI and told them about Steele’s offer to pay him for the
murders.3 The FBI arranged for Fairfax to wear a recording
device and Fairfax recorded two subsequent conversations
with Steele. The Fairfax-Steele recordings consist of
discussions that took place outside or in a barn at Steele’s
ranch; discussions of horse care are interspersed with plans
for a second murder attempt, this one designed to look like a
car accident. On the day Steele and Fairfax had agreed upon
for the second murder attempt, law enforcement officials
came to Steele’s home and falsely informed him that his wife
was dead so they could measure his reaction. They
subsequently told him that she had not been killed, and they
arrested him. Meanwhile, Cyndi Steele was informed of the
circumstances of the charges against her husband, and asked
to hear the Fairfax-Steele recordings. Apparently aware of
this, Steele spoke with his wife from jail on a recorded
telephone two days later. He told her that the police would



    3
    Fairfax initially omitted any explanation about actually building and
planting the two pipe bombs, but a fortuitously-timed oil change led to the
discovery of the pipe bomb on Cyndi Steele’s car, charges against Fairfax,
and Fairfax’s agreement to testify against Steele.
                 UNITED STATES V. STEELE                     5

try to use her to authenticate his voice on the recordings with
Fairfax, and he said,

       After you hear this tape tomorrow, no matter
       what you hear, no matter what you think, no
       matter what you feel, you have to say the
       following: ‘No, that is not my husband’s
       voice.’ And then like a rhinoceros in the road,
       you have to stand your ground and refuse to
       say anything but that.

The recorded conversation between Steele and his wife
formed the basis for the government’s victim tampering
charge against Steele.

    The government’s case against Steele included the
Fairfax-Steele recordings, Fairfax’s testimony, physical
evidence of the bomb placed on Cyndi Steele’s car, the
dismantled bomb, testimony of the police and FBI agents
involved in Steele’s arrest, and the jailhouse recording of
Steele telling Cyndi that she needed to deny that the voice on
the recordings was his. Steele’s defense was that he was
framed and that the recordings of his conversations with
Fairfax were fabricated.

    At a pre-trial Daubert hearing, Steele’s trial attorney
attempted to qualify two forensic experts to discredit the
government recordings of the conversations between Fairfax
and Steele. The district court’s rulings on the qualifications
of those experts have not been appealed. One of the
witnesses was willing to testify the tapes had been fabricated,
but the district court ruled the witness was not qualified. The
other witness, Dr. George Papcun, was qualified by the court,
but was not prepared to testify that the recordings had been
6                UNITED STATES V. STEELE

fabricated. He opined that the recordings had an unusually
large number of gaps, “electronic signatures,” and “electronic
transients” that could have been caused by a number of things
— equipment anomalies, equipment malfunctions,
inadvertent starts and stops of the recording, ambient noise,
or purposeful editing. He was prepared to testify that the
electronic disturbances in the recordings signified that
“whatever is on these recordings is not entirely whatever
occurred in the real environment being recorded.” The court
ruled that Papcun’s testimony was not likely to be relevant at
trial and that Dr. Papcun could not testify without a factual
predicate being established. Because Dr. Papcun’s testimony
was deemed to be “of very limited probative value,” the
district court ruled that it would only be allowed if there was
evidence introduced at trial that something on the recordings
was not said, or that something said was not on the
recordings.

     Once the trial was underway, the jury heard testimony
from Steele’s wife that the voice on the recordings was not
Steele’s and the district court ruled that Dr. Papcun would be
permitted to testify. But Dr. Papcun was not available; he
was on a pre-planned vacation in Bora Bora and Steele’s trial
counsel, Robert McAllister, had not subpoenaed him. The
district court declined to allow Dr. Papcun to testify by video
and only permitted a one-day continuance, explaining: “this
is a problem of the defense’s making, not the court’s. And I
think that if they made a tactical or otherwise made a decision
to not keep Dr. Papcun available, then that’s the choice they
made.” Steele was convicted on all charges.

    About a month after the jury verdict, McAllister
acknowledged taking over $100,000 of client funds for his
personal use in a different case. McAllister eventually plead
                 UNITED STATES V. STEELE                      7

guilty and was sentenced on conspiracy and bankruptcy fraud
charges.

    Steele responded by engaging substitute counsel, and his
new attorneys filed a motion for new trial alleging that
McAllister and another member of the defense team had
rendered ineffective assistance. The district court declined to
take up the ineffective assistance argument, ruling that
consideration of it would be proper in a habeas petition where
a factual record could be developed. The court denied the
motion, and this appeal followed.

II. DISCUSSION

    The standard this court applies to decide whether to
review ineffective assistance of counsel claims raised on
direct appeal is well established. Such claims are “generally
inappropriate on direct appeal” and should be raised instead
in habeas corpus proceedings. United States v. Ross,
206 F.3d 896, 900 (9th Cir. 2000). We consider them only
“where the record is sufficiently developed to permit review
and determination of the issue, or the legal representation is
so inadequate that it obviously denies a defendant his Sixth
Amendment right to counsel.” United States v. Rivera-
Sanchez, 222 F.3d 1057, 1060 (9th Cir. 2000) (internal
quotation marks omitted).

    Though district courts have heard pre-judgment
ineffective assistance of counsel claims on occasion, see, e.g.,
United States v. Del Muro, 87 F.3d 1078, 1080 (9th Cir.
1996), we have not previously articulated the standard a
district court should apply to decide whether to rule on such
a claim. We agree with the Second Circuit’s decision in
United States v. Brown, that a district court need not “invoke
8                UNITED STATES V. STEELE

an appellate court’s rubric and require a defendant to use his
one § 2255 motion to raise an ineffective assistance claim
post-judgment, particularly when the district court is in a
position to take evidence, if required, and to decide the issue
pre-judgment.” 623 F.3d 104, 113 (2d Cir. 2010). We adopt
the rule in Brown that “when a claim of ineffective assistance
of counsel is first raised in the district court prior to the
judgment of conviction, the district court may, and at times
should, consider the claim at that point in the proceeding.”
Id. This decision is best left to the discretion of the district
court. See United States v. Miskinis, 966 F.2d 1263, 1269
(9th Cir. 1992) (remarking in context of appellate review that
“the decision to defer resolution of an ineffective assistance
of counsel claim is a discretionary one and depends upon the
contents of the record”).

    Requiring a defendant to wait for post-conviction relief
has several consequences, including that a defendant may
serve months in prison waiting for post-conviction arguments
to be heard. Lengthy delays necessarily entail concomitant
weakening of memories and aging of evidence. Additionally,
a defendant might be without representation in post-
conviction proceedings but entitled to substitute counsel if the
claim is heard before entry of final judgment. See Del Muro,
87 F.3d at 1080–81 (requiring appointment of new counsel
when district court grants evidentiary hearing on
ineffectiveness claim).

    But “[w]e are mindful that district courts face competing
considerations in deciding whether it is appropriate to inquire
into the merits of [ineffective assistance] claims prior to
judgment, including . . . the . . . disruption of the
proceedings.” Brown, 623 F.3d at 113. “The decision to
interrupt the pre-judgment proceedings to inquire into the
                    UNITED STATES V. STEELE                            9

merits of an ineffective assistance of counsel claim may
depend on, among other things, whether the court would need
to relieve the defendant’s attorney, or in any event, to appoint
new counsel in order to properly adjudicate the merits of the
claim.” Id. The district court’s decision may also depend on
the existence of evidence already in the record indicating
ineffective assistance of counsel, or upon the scope of the
evidentiary hearing that would be required to fully decide the
claim.

    In this case, we have no trouble concluding that the
district court did not abuse its discretion by declining to
consider Steele’s ineffective assistance claims prior to the
imposition of judgment. Steele focuses his appeal on his
argument that McAllister was ineffective for failing to secure
Dr. Papcun’s presence at trial. But in the district court,
Steele’s substitute counsel named seven different “possible
sources” of McAllister’s ineffective assistance in his motion
for a new trial.4 In addition to the arguments regarding
McAllister’s allegedly ineffective performance, the motion
argued that another attorney from Steele’s defense team had
failed to render adequate legal assistance. Unlike in Brown,
Steele’s claim was broad-based and the evidentiary record to
consider it was sorely lacking.5 Even if the motion Steele
presented to the district court had been as focused as the
argument raised on appeal, the record before the trial court

  4
    His motion argued that McAllister was also ineffective by failing to:
(1) formulate a defense theory; (2) conduct effective cross-examination;
(3) make objections; (4) prepare defense witnesses and introduce
documentary evidence; (5) move for a mistrial; and (6) make a meaningful
closing argument.
   5
     In Brown, the defendant’s attorney failed to communicate the
government’s plea offer to the defendant. See 623 F.3d at 113–14.
10                  UNITED STATES V. STEELE

did not include a clear explanation of McAllister’s decision
to forgo subpoenaing Dr. Papcun’s testimony. The trial
record shows that the subpoena was not overlooked; defense
counsel made the conscious decision not to subpoena this
witness. But apart from statements McAllister made in
discussions held out of the presence of the jury, the record
lacks an explanation from McAllister regarding this trial
strategy. Coupled with the important fact that the district
court had already determined, after a pre-trial Daubert
hearing, that Dr. Papcun’s testimony did not include an
opinion that the tapes were fabricated and would be of limited
probative value, this under-developed record informs our
decision that the district court did not abuse its discretion by
failing to take up the motion. Moreover, the district court,
alert to issues of ineffectiveness following Steele’s counsel’s
subsequent legal troubles, expressed on the record that, with
respect to ethical lapses, “certainly nothing that occurred in
the courtroom gave me any pause or concern in that regard.”6

    Steele argues that the district court’s ambiguously worded
order denying his motion for new trial reveals that the court
erroneously understood it lacked the discretion to hear his
pre-judgment motion. See United States v. $11,500.00 in
U.S. Currency, 710 F.3d 1006, 1011 (9th Cir. 2013) (“A
district court abuses its discretion if it does not apply the
correct legal standard . . . .”); Miller v. Hambrick, 905 F.2d
259, 262 (9th Cir. 1990) (“A district court’s failure to
exercise discretion constitutes an abuse of discretion.”).
Here, the district court’s order explained that the “proper
procedure for challenging the effectiveness of counsel is by


 6
  Because the relief Steele requests on appeal is a remand for evidentiary
development, not a decision on his ineffective assistance claim, we do not
evaluate the merits of his ineffective assistance claims.
                  UNITED STATES V. STEELE                     11

a collateral attack on the conviction.” When taken out of
context, this language could be read as referring to a general
standard rather than as an assessment of Steele’s particular
motion.       Steele’s assertion that the district court
misunderstood its authority is belied by the record. First, we
note the district court’s unambiguous assertion of its authority
to consider Steele’s motion in its entirety. At the outset of its
order, the district court followed its recitation of all seven of
Steele’s claims by observing its discretion to consider and to
grant the motion for a new trial pursuant to the Federal Rules
of Criminal Procedure. The district court’s plain assertion of
its discretion to consider a motion for a new trial, without
further qualification based on the nature of the claims
asserted, is telling.

    Further, in direct support of its ruling that Steele’s
ineffectiveness claim was better addressed in a collateral
attack on conviction than in a post-trial motion, the district
court cited an unpublished decision, United States v. Ross,
442 Fed. Appx. 290 (9th Cir. 2011), recognizing that a district
court does have the discretion to hear an ineffective
assistance of counsel claim before collateral proceedings are
commenced. Ross states, “there is no fixed rule against
determining the ineffectiveness [of counsel] question on
direct appeal where the record so permits. Rather, the
decision to defer resolution of an ineffective assistance of
counsel claim is a discretionary one and depends upon the
contents of the record in a particular case.” Id. at 293
(internal quotation marks and citation omitted). The district
court’s citation to Ross shows that the district court
understood it had the discretion to entertain Steele’s
12                  UNITED STATES V. STEELE

ineffective assistance claim without waiting for the initiation
of collateral proceedings.7

    The circumstances of Steele’s request, including the lack
of a significant record necessary to adequately consider his
broad-based motion, make plain that the trial court was best
suited to decide whether the interests of justice and judicial
economy would be served by delaying the trial proceedings
to conduct an immediate hearing on an under-developed
motion. The district court’s ruling was well within its
discretion.

      AFFIRMED.




  7
    Although it is not binding authority, we note that Judge Winmill, in
particular, understood the district court’s discretion to consider a pre-
judgment ineffective assistance of counsel motion; he granted one in an
unpublished decision in 2006. See United States v. Moses, No. CR-05-
061, 2006 WL 1459836 (D. Idaho 2006).
