           RECOMMENDED FOR FULL-TEXT PUBLICATION
                Pursuant to Sixth Circuit Rule 206                      2    United States v. Lee                         No. 03-3496
        ELECTRONIC CITATION: 2004 FED App. 0063P (6th Cir.)
                    File Name: 04a0063p.06                                                  _________________
                                                                                                 COUNSEL
UNITED STATES COURT OF APPEALS
                                                                        ON BRIEF: Isabella Dixon-Thomas, Columbus, Ohio, for
                  FOR THE SIXTH CIRCUIT                                 Appellant. Kevin W. Kelley, UNITED STATES
                    _________________                                   ATTORNEY, Columbus, Ohio, for Appellee.

 UNITED STATES OF AMERICA , X                                                               _________________
            Plaintiff-Appellee, -                                                               OPINION
                                   -
                                                                                            _________________
                                   -  No. 03-3496
           v.                      -
                                    >                                     DAVID L. BUNNING, District Judge. This is a direct
                                   ,                                    criminal appeal from a perjury conviction pursuant to
 RYAN E. LEE,                      -                                    18 U.S.C. §1623. Ryan Lee appeals his conviction on the
         Defendant-Appellant. -                                         basis of: (1) insufficiency of the evidence; (2) the denial of a
                                  N                                     motion to dismiss the indictment; (3) the court’s evidentiary
      Appeal from the United States District Court                      rulings; and (4) the denial of his motion for judgment of
     for the Southern District of Ohio at Columbus.                     acquittal. The parties have agreed to waive oral argument,
   No. 02-00024—Algenon L. Marbley, District Judge.                     and, upon examination, we agree that oral argument is not
                                                                        needed. Fed. R. App. P. 34(a). For the following reasons, we
                 Submitted: December 4, 2003                            AFFIRM.

             Decided and Filed: February 27, 2004                                             BACKGROUND
                                                                          The indictment against Lee arose from sworn testimony he
Before: SILER and GILMAN, Circuit Judges; BUNNING,                      gave during his detention hearing before a federal magistrate
                   District Judge.*                                     judge. In an effort to convince the judge that he was a good
                                                                        candidate for pretrial release, Lee testified about his
                                                                        employment. More specifically, Lee testified that he met
                                                                        Jeffrey Bryant and decided to invest money in Bryant’s
                                                                        restaurant, Buckeye Fried Chicken (“Buckeye Chicken”).
                                                                        Lee testified that he worked at Buckeye Chicken and had a
                                                                        50% interest in the business. Lee stated that he primarily
                                                                        worked at Buckeye Chicken during the week, not during the
                                                                        weekends; that he worked from approximately 6:30 a.m. to
                                                                        about 11:00 a.m.; and that his duties included meeting
    *
     The Honorable David L. Bunning, United States District Judge for   vendors and picking up supplies from Gordon Food Service.
the Eastern District of Kentucky, sitting by designation.

                                 1
No. 03-3496                         United States v. Lee       3   4      United States v. Lee                        No. 03-3496

Lee explained that he had one office at the restaurant, and                coming in, we got uhmm, then I go over to GFS
Bryant had the other.                                                      which is the Gordon Food Services and pick up
                                                                           supplies and different things like that and drop them
  During cross-examination, Lee announced that he was                      off. So I’m usually in there between 6:30 and I’m
refusing to answer any more questions. After consulting with               out of there by about 11:00 when we open.”
Lee, Lee’s attorney withdrew Lee’s testimony. The
magistrate judge indicated that he would strike Lee’s                  Q: “If released on some sort of bond would you
testimony and not consider it in making his decision                      continue to work there?”
regarding Lee’s bond.
                                                                       A: “Yes, sir.”
  After the detention hearing, the FBI investigated Lee’s
statements regarding his employment at Buckeye Chicken.              Lee filed a motion to dismiss the indictment, arguing that
The results of this investigation led to Lee being charged with    the magistrate’s decision to strike Lee’s testimony made his
one count of perjury in violation of 18 U.S.C. §1623. The          testimony a “legal nullity.” The district court denied Lee’s
Indictment charged:                                                motion to dismiss the indictment on that basis.

  At the time and place alleged, the Court was engaged in             At trial, the United States called six witnesses. Bryant
  a detention hearing to determine if there were appropriate       testified that Lee never worked at Buckeye Chicken, had no
  conditions of release for defendant RYAN E. LEE. It              role in the day-to-day operations, and had no responsibilities
  was a matter material to said detention hearing to               at Buckeye Chicken. Bryant also testified that Lee never had
  determine whether or not RYAN E. LEE had                         an office at Buckeye Chicken and was never given a key to
  employment, specifically at Buckeye Chicken                      the restaurant. Bryant acknowledged that Lee had lent him
  Restaurant, 1971 East Livingston Avenue, Columbus,               $33,000, and that he had signed a document in June of 2000
  Ohio.                                                            purporting to give Lee a 40% interest in the Buckeye
                                                                   Chicken. However, Bryant explained that he never formally
  At the time and place alleged, RYAN E. LEE, while                transferred the ownership, and the document giving the 40%
  under oath, did knowingly declare in response to                 was used only a “stalling tactic.” Bryant stated that Lee asked
  questions from his attorney before said Court with               him to pay back the loan by issuing payroll checks to Lee
  respect to the material matter alleged above, as follows:        from Buckeye Chicken, which Bryant did for approximately
                                                                   eight to ten weeks for a total of $418.00 after taxes.
  Q: “Do you go to work there every day, or where do,
     how often do you go to work?”                                    Nicole McCullar, a manager at Buckeye Chicken, testified
                                                                   that she and Bryant were responsible for Buckeye Chicken’s
  A: “Well mostly just during the week, I’m not                    day-to-day operations. McCullar stated that she knew Lee
     necessarily there during the weekend because we               was at least part owner, or a “silent partner” in the restaurant.
     don’t normally have vendors come through, usually             McCullar testified that before the restaurant opened, Lee
     I’m there in the mornings to have vendors come                would run errands for Bryant and helped get the restaurant
     through, usually I’m there in the mornings to accept          open. McCullar stated that Lee would occasionally give her
     vendors in. We got chicken coming in, we got rolls            money to pay for items such as letterhead, business cards,
No. 03-3496                         United States v. Lee     5    6     United States v. Lee                          No. 03-3496

computer equipment, and tables. McCullar explained that it        29 motion for acquittal notwithstanding the jury verdict. The
“wasn’t like [Lee] was working but he would be in the store.”     court took the motion under advisement. At the sentencing
McCullar testified that Lee did not direct employees, but if he   hearing, the district court judge stated that he had considered
did, they knew to listen to him because of Lee’s connection       the arguments of counsel regarding the Rule 29 motion and
to Bryant.                                                        was denying the motion.
  McCullar stated that Lee never opened the store in the                                    ANALYSIS
morning, did not have a key, and did not have an office at
Buckeye Chicken. McCullar stated that Lee may have picked         A. Sufficiency of Evidence
up supplies once or twice. McCullar explained that Lee knew
some of the vendors and would pay them, but he never placed         On appeal from a criminal conviction, the question is
orders with them. McCullar testified that she had never           whether the relevant evidence, direct or circumstantial,
observed Lee do any work at the store at the time she was         viewed in the light most favorable to the government, could
cutting paychecks for him.                                        be accepted by a reasonable-minded jury as adequate and
                                                                  sufficient to support the conclusion of the defendant’s guilt
  Wayne Wise testified that shortly after he began working at     beyond a reasonable doubt. United States v. Meyers, 646
Buckeye Chicken in December of 2001, he was given the             F.2d 1142, 1143 (6th Cir. 1981). This inquiry does not
responsibility of opening the store. Wise explained that he       require a court to “ask itself whether it believes the evidence
would arrive at about 8:30 a.m. and only Keith “Pep” Bryant       at the trial established guilt beyond a reasonable doubt, ...
and McCullar ever opened the store with him. Wise stated he       [but] if any rational trier of fact could have found the essential
never knew of anyone with a first name of Ryan working at         elements.” Jackson v. Virginia, 443 U.S. 307, 312-13 (1979).
Buckeye Chicken.
                                                                    In order to obtain a conviction for perjury in violation of
  Lynn Bostelman of Gordon Food Service (“GFS”) also              18 U.S.C. § 1623, the government must prove that the
testified at trial. Bostelman explained that GFS is a wholesale   defendant: (1) knowingly made (2) a materially false
food distributor. Bostelman testified that Bryant, McCullar,      declaration (3) under oath (4) in a proceeding before or
and a man named Keith were the only people she ever dealt         ancillary to any court of the United States. United States v.
with as representatives of Buckeye Chicken. Bostelman             McKenna, 327 F.3d 830, 838 (6th Cir. 2003). A statement is
indicated the Buckeye Chicken bought items from GFS every         material if “it has the natural tendency to influence, or was
day, and that she had been out to the restaurant several times.   capable of influencing, the decision of the decision-making
Bostelman did not recognize Lee when asked to look around         body to which it was addressed.” Id. at 839 (citation omitted);
the courtroom and point out any representative of Buckeye         see also United States v. Sassarelli, 118 F.3d 495, 499 (6th
Chicken. Bostelman stated that she did not know anyone by         Cir., 1997). Nor is it required that the government prove that
the name of Ryan Lee.                                             the perjured testimony actually influenced the relevant
                                                                  decision-making body. McKenna, 327 F.3d at 839. Further,
  At the close of evidence, Lee’s counsel made a Rule 29          materiality is tested at the time the allegedly false statement
motion for judgment of acquittal. The district court judge        was made. Id. (emphasis added).
reserved on final decision pursuant to Rule 29(b). After the
jury returned its verdict of guilty, Lee’s counsel made a Rule
No. 03-3496                         United States v. Lee     7    8      United States v. Lee                         No. 03-3496

  At trial, FBI Agent Creedon testified that during the           B. Motion to Dismiss the Indictment
detention hearing, Lee was placed under oath and took the
witness stand to testify on his own behalf about his                A district court’s refusal to dismiss an indictment is
employment status. Lee testified that he worked at Buckeye        reviewed for an abuse of discretion. United States v. Powell,
Chicken and described his duties at the restaurant. When          823 F.2d 996, 1001 (6th Cir. 1986), cert. denied, 484 U.S.
asked if he went to work every day, or how often he worked,       969 (1987); United States v. Overmeyer, 899 F.2d 457, 465
Lee stated that he worked during the week from                    (6th Cir. 1990), cert. denied, 498 U.S. 939 (1990). In denying
approximately 6:30 a.m. to about 11:00 a.m. Lee testified         Lee’s Motion to Dismiss, the district court relied on United
that his duties at Buckeye Chicken included meeting with          States v. Swift, 809 F.2d 320 (6th Cir. 1987), and United
vendors and picking up items from GFS. Lee indicated that         States v. Sarihifard, 155 F.3d 301 (4th Cir. 1998).
he had an office at Buckeye Chicken.
                                                                     In Swift, this court held that a false statement’s failure to
  During the trial, Bryant, McCullar, and Wise each testified     lead the tribunal astray is irrelevant for 18 U.S.C. § 1623
that Lee did not work at Buckeye Chicken. Bryant and              analysis. 809 F.2d at 324. The court stated that “a false
McCullar testified that Lee had no responsibilities in the day-   declaration satisfies the materiality requirement if a truthful
to-day operations at Buckeye Chicken. Wise testified that he      statement might have assisted or influenced the grand jury in
never saw Lee at Buckeye Chicken when he was opening the          its investigation.” Id. (citing United States v. Richardson, 596
restaurant at 8:30 a.m. Bryant admitted that Lee had been         F.2d 157, 165 (6th Cir. 1979)); see also United States v. Lutz,
“cut” Buckeye Chicken paychecks, but explained that the           154 F.3d 581, 588 (6th Cir.1998) (holding that a statement is
checks were only to repay a loan. McCullar testified that she     "material" if it has the natural tendency to influence or is
thought of Lee only as a silent partner, and that Lee might       capable of influencing a decision making process; showing of
have gone to GFS twice. Bostelman testified that Buckeye          actual influence unnecessary to prove materiality); United
Chicken made purchases every day at GFS, but she had never        States v. DeZarn, 157 F.3d 1042, 1049 (6th Cir.1998) (same).
seen Lee nor heard his name. Regardless of what Lee
believed his role at Buckeye Chicken to be, this testimony           In Sarihifard, it was conceded that the defendant’s false
directly contradicted his statements that he was at Buckeye       statement to a grand jury had no influence on the grand jury’s
Chicken “mostly” during the week, “usually” between the           decision because the government later told the grand jury to
hours of 6:30 and 11:00, and that he was meeting vendors          disregard it because it was false. 155 F.3d at 307. However,
there; and regularly making trips to GFS.                         the court noted that “[a] false statement’s capacity to
                                                                  influence the fact finder must be measured at the point in time
   Viewed in the light most favorable to the government, the      that the statement was uttered.” Id. (citing United States v.
evidence was clearly sufficient for a rational trier of fact to   Holley, 942 F.2d 916, 923 (5th Cir. 1991)). Therefore, the
find that Lee knowingly made false and material declarations      court stated that the fact that the government told the grand
under oath during his detention hearing regarding his             jury not to rely on the defendant’s testimony was irrelevant.
employment status at Buckeye Chicken. Therefore, there was        Id. The court stated that to hold otherwise would
sufficient evidence presented at trial to sustain the jury’s
verdict.                                                              allow witnesses who lie under oath to escape prosecution
                                                                      if their statements before a grand jury are obviously false.
                                                                      This rationale protects witnesses who fabricate testimony
No. 03-3496                         United States v. Lee     9    10    United States v. Lee                         No. 03-3496

  that a grand jury will recognize instantly as false. An         judge had abrogated the jury’s ability to make factual
  argument for the creation of such an incentive not only         determinations on one of the requisite elements of the offense,
  misconstrues the scope of materiality, it strains logic.        a constitutional violation had occurred. Id. at 523. Lee’s
                                                                  reliance on Gaudin is misplaced.
Id.
                                                                     Unlike the case in Gaudin, the issue of materiality was
  Lee’s statements regarding his employment at Buckeye            submitted to the jury during Lee’s trial. The jury heard
Chicken were material because that information was capable        testimony regarding the materiality of Lee’s statements at the
of influencing the magistrate judge’s decision as to whether      detention hearing, and then was specifically instructed to
Lee should remain in custody. Even though Lee’s testimony         determine whether Lee’s statements were material.
was withdrawn and ultimately stricken, Lee’s testimony had        Therefore, the district court did not abrogate the jury’s ability
the capacity to influence the magistrate judge at the time it     to make a determination regarding materiality.
was given. A defendant cannot perjure himself and then have
his perjurious testimony stricken in order to escape                 Rather, the district court merely ruled, as a matter of law,
prosecution. As recognized by the district court, to conclude     that the portion of the transcript wherein the magistrate judge
otherwise would lead to absurd results. Therefore, the district   struck Lee’s earlier testimony was not relevant and could
court did not abuse its discretion in overruling Lee’s Motion     mislead the jury. Relying on Sarihifard and Swift, supra, the
to Dismiss the Indictment.                                        district court explained that the magistrate judge’s statement
                                                                  that he would not consider Lee’s testimony was not relevant
C. Evidentiary ruling                                             because the materiality of Lee’s testimony should be
                                                                  measured at the time that the statement was uttered.
  A district court’s evidentiary rulings are reviewed under an
abuse of discretion standard. United States v. Garcia, 20 F.3d       Based on this reasoning and the authority cited by the
670, 672 (6th Cir. 1994), cert. denied, 513 U.S. 1159 (1995);     district court, it was not an abuse of discretion to exclude
United States v. Hickey, 917 F.2d 901, 904 (6th Cir. 1990).       evidence showing that Lee’s testimony was subsequently
                                                                  stricken by the magistrate judge.
   Lee argues that the district court erred in not allowing the
jury to hear the portion of the detention hearing transcript      D. Rule 29 motion
where the magistrate judge struck his allegedly perjurious
statements from the record. Lee’s argument is based on              The district court’s refusal to grant a motion for judgment
United States v. Gaudin, 515 U.S. 506 (1995), wherein the         of acquittal is a legal question that we review de novo. United
Supreme Court held that the Constitution requires the judge       States v. Keeton, 101 F.3d 48, 52 (6th Cir. 1996) (citing
to submit any question of materiality concerning a                United States v. Gibson, 896 F.2d 206, 209 (6th Cir. 1990)).
defendant’s false statement to the jury. In Gaudin, the trial     We must determine “whether, after viewing the evidence in
judge had instructed the jury that “[t]he issue of materiality    the light most favorable to the prosecution, any rational trier
. . . is not submitted to you for your decision but rather is a   of fact could have found the essential elements of the crime
matter for the decision of the court. You are instructed that     beyond a reasonable doubt.” Jackson v. Virginia, 443 U.S.
the statements charged in the indictment are material             307, 319 (1979). “Substantial and competent” circumstantial
statements.” Id. at 508. The Court held that because the trial    evidence by itself may support a verdict and need not
No. 03-3496                         United States v. Lee     11    12   United States v. Lee                         No. 03-3496

“remove every reasonable hypothesis except that of guilt.”         must rest on the utterance by the accused; it may not stand on
United States v. Stone, 748 F.2d 361, 363 (6th Cir. 1984).         a particular interpretation that the questioner places upon the
The general hesitancy to disturb a jury verdict applies with       answer.
even greater force when a motion of acquittal has been
thoroughly considered and subsequently denied by the trial            In Shotts, the Eleventh Circuit reversed the perjury
judge. United States v. Orrico, 599 F.2d 113, 116 (6th Cir.        conviction because the defendant’s statement was “literally”
1979).                                                             true, even if it was also “evasive, nonresponsive, intentionally
                                                                   misleading and arguably false.” Id. at 1299. The court stated
  As stated herein at Section A, a perjury charge pursuant to      that the questioner has the burden of pinning the witness
18 U.S.C. § 1623 has four elements: (1) knowingly made;            down to the specific object of inquiry. Id. at 1298, (citing
(2) a materially false declaration; (3) under oath; (4) in a       Bronston v. United States, 409 U.S. 352, 360 (1973)). The
proceeding before or ancillary to any court of the United          court explained: “If a witness evades, it is the lawyer’s
States.                                                            responsibility to recognize the evasion and to bring the
                                                                   witness back to the mark, to flush out the whole truth with the
   After the close of proof, the district court heard arguments    tools of adversary examination.” Id. (quoting Bronston, 409
regarding Lee’s Rule 29 motion. Lee’s counsel argued that          U.S. at 362).
the evidence indicated a belief on the part of Lee that he was
40% owner of Buckeye Chicken, that he had a stake in the              Lee’s reliance on Shotts is misplaced. Unlike the defendant
business, and it was a place that he worked. The district          in Shotts, Lee did not give a “literally” true but unresponsive
judge agreed that some of the evidence could create a belief       answer. Lee stated where he worked, what his duties were,
in Lee’s mind that he was part owner, but pointed out that Lee     and what specific times he was at work during the week. The
testified specifically that he was “usually there between 6:30     government later investigated Lee’s statements concerning
and I’m out of there at about 11:00 when we open.” The             Buckeye Chicken, found them to be false, and sought an
court explained that this testimony was material because it        indictment for perjury. Shotts is also distinguishable because
indicated that Lee would be at a certain place during specific     Lee testified on direct examination conducted by his own
hours during the week and had bearing on his risk of flight.       lawyer. When the government attempted to cross-examine
However, there was no evidence that Lee was there during           Lee about his employment at Buckeye Chicken, Lee abruptly
those hours. The court was persuaded by the government’s           stopped testifying. Therefore, Lee made it impossible for the
argument that Lee held himself out as an employee at the           government to question him and “flush” out his testimony.
detention hearing, yet the testimony at trial indicated that Lee
did not work at Buckeye Chicken.                                      The government presented witnesses at trial who testified
                                                                   that Lee’s statements were false. None of the evidence
   Lee argues that the district court erred in overruling his      supported Lee’s statement that he was “usually there between
Rule 29 motion, because the government, in proving the             6:30 and I’m out of there at about 11:00 when we open.”
element of falsity, improperly interjected its own                 Regardless of Lee’s ownership interest, or involvement in the
interpretation regarding Lee’s statement that he was employed      operations of Buckeye Chicken, the evidence presented at
at Buckeye Chicken. Lee relies on United States v. Shotts,         trial controverted his statement that he was at Buckeye
145 F.3d 1289, 1298 (11th Cir. 1998), cert. denied, 525 U.S.       Chicken during those specific times. Considering the
1177 (1999), for the proposition that a perjury conviction         evidence in the light most favorable to the government, a
No. 03-3496                         United States v. Lee    13

reasonable jury could find that Lee’s statements were
materially false.
  Furthermore, the district court thoroughly considered Lee’s
Rule 29 motion. The district judge heard the arguments of the
parties, reserved the decision on the motion in order to
examine the transcript, and then denied Lee’s motion at the
sentencing. Therefore, “the general hesitancy to disturb a jury
verdict applies with even greater force.”
  For the foregoing reasons, the district court did not err in
overruling Lee’s Rule 29 motion.
AFFIRMED.
