                  NOT RECOMMENDED FOR FULL TEXT PUBLICATION
                             File Name: 14a0573n.06

                                                 No. 13-4350

                             UNITED STATES COURT OF APPEALS
                                  FOR THE SIXTH CIRCUIT                                             FILED
                                                                   Jul 28, 2014
UNITED STATES OF AMERICA,              )                     DEBORAH S. HUNT, Clerk
                                       )
      Plaintiff-Appellee,              )
                                       )
v.                                     ) ON APPEAL FROM THE UNITED
                                       ) STATES DISTRICT COURT FOR THE
NEVILLE LYIMO,                         ) SOUTHERN DISTRICT OF OHIO
                                       )
      Defendant-Appellant.             )
______________________________________________________________________________

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

        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 26 U.S.C.

§ 7206(2). At trial, Lyimo sought to introduce the testimony of David DeWeese, an assistant field

officer for the Department of Homeland Security (DHS) within the Immigration Customs

Enforcement (ICE) division. The Government filed a motion to quash the subpoena compelling

DeWeese’s testimony because Lyimo did not comply with federal regulations for subpoenaing third-

party federal government employees, found in 6 C.F.R. §§ 5.41-.49. The district court granted the

motion and DeWeese did not testify. After the jury returned guilty verdicts on ten of the seventeen

counts charged, Lyimo filed a motion for acquittal and a motion for a new trial under Federal Rules




              *
                The Honorable Paul L. Maloney, Chief United States District Judge, United States District
      Court for the Western District of Michigan, sitting by designation.

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of Criminal Procedure 29 and 33, asserting that the jury’s verdicts were against the great weight of

the evidence. The district court denied both motions.

       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 Federal Rule of Criminal Procedure 33. For the reasons below, we

AFFIRM the district court.

                                                  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 testimony was to show that the witnesses (1) swore to follow certain

visa requirements and failed to do so, and (2) may have faced immigration consequences if they

admitted to a role in the tax fraud, thus insinuating that they may not have given truthful testimony.


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         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 6 C.F.R. §§ 5.43, 5.45. Lyimo admitted that he failed to follow the subpoena

requirements, but argued that the regulations did not apply to the information he sought and that his

Sixth Amendment right to present witnesses on his behalf should take precedence over the CFR

requirements. The district court granted the motion to quash, and DeWeese did not testify at Lyimo’s

trial.

         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 Federal Rules of Criminal Procedure 29 and 33. In the

motion, Lyimo attacked the credibility of the taxpayer witnesses against him and asserted that the

verdict was against the manifest weight of the evidence. Specifically, he argued that the Government

failed to prove that certain witnesses were legally married or that Lyimo knew the IRS filings were

false. Lyimo also claimed that the district court erred in excluding the testimony of Jerry Anderson,

Craig Casserly, and David DeWeese. The district court denied the motion for a judgment of

acquittal, finding that there was “more than sufficient evidence from which a reasonable mind might

fairly conclude guilt beyond a reasonable doubt on all ten counts.” R. 133, Page ID #2057. The court

also denied the motion for a new trial under Rule 33, holding that there was no miscarriage of justice

or prejudicial error relating to the guilty verdicts.

         Now, Lyimo appeals the district court’s decisions to quash the DeWeese subpoena and deny

the Rule 33 motion for a new trial based on the weight of the evidence. First, he argues that the


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exclusion of DeWeese’s testimony was a violation of his Fifth and Sixth Amendment rights. Second,

he argues that the district court abused its discretion by not granting a new trial. The Government

responds by asserting that Lyimo does not have standing to challenge the constitutionality of the

subpoena requirements, but that, even if he did, the requirements are constitutional. Further, the

Government argues that the verdicts were not against the great weight of the evidence, so the district

court did not err in refusing to grant the motion for a new trial.

                                                    II.

       Federal agencies are authorized by 5 U.S.C. § 301 to create regulations governing the

conditions under which their employees may testify concerning their work. United States v. Soriano-

Jarquin, 492 F.3d 495, 504 (4th Cir. 2007) (citing United States ex rel. Touhy v. Ragen, 340 U.S.

462, 468 (1951)). Often called “Touhy regulations,” procedures for subpoenaing employees of

government agencies are contained in the Code of Federal Regulations. The Department of

Homeland Security’s regulations are found in 6 C.F.R. §§ 5.41-.49. The regulations require

departmental authorization before a DHS employee may testify, specify what must be included in

a subpoena, and provide that only the DHS General Counsel may accept service on behalf of DHS

employees. Id.; §§ 5.43-.45.1

               1
                   The regulations state:
               (a) If official information is sought, through testimony or otherwise, by a request or
               demand, the party seeking such release or testimony must (except as otherwise
               required by federal law or authorized by the Office of the General Counsel) set forth
               in writing, and with as much specificity as possible, the nature and relevance of the
               official information sought. Where documents or other materials are sought, the party
               should provide a description using the types of identifying information suggested in
               § 5.3(b). Subject to § 5.47, Department employees may only produce, disclose,
               release, comment upon, or testify concerning those matters which were specified in
               writing and properly approved by the appropriate Department official designated in §
               5.44. See United States ex rel. Touhy v. Ragen, 340 U.S. 462 (1951). The Office of
               the General Counsel may waive the requirement of this subsection in appropriate
               circumstances.
     § 5.45.

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       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 28 C.F.R. § 16.23(c), we do not reach their constitutional claims.”) (citing Marino); United

States v. Allen, 554 F.2d 398, 407 (10th Cir. 1977) (“Since the defendant did not follow the

procedure and submit the required summary of testimony desired, the Department made no decision

whether the prosecutor could testify and we do not reach the constitutional claim.”). Subpoena

requirements protect the efficiency of the DHS and recognize its “legitimate interest in regulating




                                                  5
access to government information contained in its files or obtained by its employees during the

scope of their official duties.” Marino, 658 F.2d at 1125.

       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 government to reveal

the evidence it would use to rebut that testimony. The Ninth Circuit allowed the constitutional

challenge rather than require the defendant to first reveal information he argued he should not be

required to reveal. Id. (citing Wardius v. Oregon, 412 U.S. 470 (1973)).

       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


                                                  6
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 Federal Rule of Criminal Procedure 33, the

district court sits as the “thirteenth juror,” weighing the evidence and considering the credibility of

the witnesses to determine if there has been a miscarriage of justice. United States v. Turner, 490

F. Supp. 583, 593 (E.D. Mich. 1979), aff’d, 633 F.2d 219 (6th Cir. 1980). District courts have

discretion to grant new trials, but should do so only in “the extraordinary circumstance where the

evidence preponderates heavily against the verdict.” Id. at 593. The burden is on the defendant to

prove that a new trial should be granted. United States v. Seago, 930 F.2d 482, 488 (6th Cir. 1991).

When the government has presented enough evidence for a conviction but the judge disagrees with

the jury’s resolution of conflicting evidence, a reversal is appropriate on the ground that the verdict

is against the manifest weight of the evidence. United States v. Lutz, 154 F.3d 581, 589 (6th Cir.

1998).




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       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.3d 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.

       Lyimo argues that the district court should have granted him a new trial because the

witnesses against him were not credible. Under his theory, the Government’s witnesses provided

Lyimo with inaccurate tax information and lied at trial to avoid criminal investigation and possible

deportation. The Government asserts that mere questions of credibility and testimony consistency

do not demonstrate that a verdict is against the great weight of the evidence, and that the witnesses

demonstrated their credibility by admitting wrongdoing and establishing a consistent pattern of

conduct that would have been unlikely if Lyimo had not been involved.

       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

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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 F. App’x 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.




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