June 7, 2017
from the United States District Court for the Central
District of Illinois. No. 3:13-cr-30056-SEM-JEH-l - Sue E.
Ripple, Rovner, and Hamilton, Circuit Judges.
Ripple, Circuit Judge.
jury convicted David Simpson of possession with intent to
distribute heroin, in violation of 21 U.S.C. §§
841(a)(1) and 841(b)(1)(C). He moved for a new trial under
Federal Rule of Criminal Procedure 33(a), alleging that his
trial counsel had been ineffective by failing to investigate
and call three witnesses who had potentially exculpatory
evidence. The district court declined to conduct an
evidentiary hearing and denied the motion because it found
"no reasonable possibility" that the proposed
testimony of these witnesses would have changed the
trial's outcome. On appeal, Mr. Simpson argues that the
district court abused its discretion by denying his motion
without an evidentiary hearing.Because we believe that Mr.
Simpson alleged sufficient facts to support an
ineffective-assistance-of-counsel claim, we vacate the denial
of his motion and remand for an evidentiary hearing.
Simpson came to the attention of law enforcement when one of
his associates, Joe Burdell, was arrested for driving under
the influence of heroin and agreed to cooperate with local
police in building a case against Mr. Simpson. Roughly one
week after his arrest, Burdell alerted the police that he and
Mr. Simpson would be driving to St. Louis to buy heroin. The
police dispatched an officer to follow them. On their way to
St. Louis, Mr. Simpson, Burdell, and an additional passenger,
Jade Winchester, made several stops in small towns in
southern Illinois to pick up money for the planned heroin
purchase. They first went to a junkyard to exchange some
scrap metal for cash. They then stopped at a Dairy Queen to
collect money from a heroin customer named David Zenner.
Finally, they met up with another individual at the
intersection of two state roads.
Simpson, Burdell, and Winchester then drove to an apartment
building in St. Louis. According to Winchester's
testimony, Mr. Simpson went to an apartment unit and returned
with a "sack" of heroin,  which was packaged in
capsules that Mr. Simpson then transferred to his cigarette
case. Burdell also testified that Mr. Simpson bought the
heroin capsules in St. Louis and that Mr. Simpson put those
capsules into his cigarette case. Both Winchester and Burdell
testified that the group then drove to a hotel parking lot,
where Burdell and Mr. Simpson shot up heroin.
leaving the parking lot, the group drove on Interstate 55 to
the Staunton exit, where they planned to meet Zenner, the
heroin customer who had given Mr. Simpson money hours earlier
at the Dairy Queen. Before the group reached Zenner, however,
law enforcement officers stopped the group's vehicle.
Burdell testified that Mr. Simpson then "threw the
cigarette pack underneath [Burdell's] seat, " but an
officer seized it. The pack bore Mr. Simpson's right
thumb print and contained 38 capsules (about 2.3 grams) of
heroin. The Government arrested Mr. Simpson and later charged
him with possession with intent to distribute heroin.
trial, the Government presented testimony about these events
from Winchester, Burdell, and Zenner. Winchester and Burdell
both testified that Mr. Simpson collected money on their way
to St. Louis, bought the heroin capsules, and planned to meet
Zenner on the return trip. Zenner also testified that he gave
Mr. Simpson money to buy heroin. Additionally, the police
officer who had tailed the group confirmed each of the stops
en route to St. Louis. A deputy U.S. marshal testified that,
while accompanying Mr. Simpson out of the courtroom after a
pretrial hearing, Mr. Simpson referred to himself as a
"low-level drug dealer." Records of Mr. Simpson's
cell phone communications with his two heroin customers as
well as a St. Louis-area number corroborated the stops Mr.
Simpson made on the day of his arrest.
Simpson testified in his own defense. He denied buying heroin
in St. Louis and accused Burdell of being the actual buyer.
According to Mr. Simpson, when he, Winchester, and Burdell
arrived at a St. Louis parking lot, "somebody came
out" to give Burdell "some stuff, " but Mr.
Simpson did not know what it was. According to his testimony,
the group then went to a hotel parking lot where Burdell gave
him heroin to shoot up. Mr. Simpson acknowledged that the
cigarette case was his, but said that he gave it to Burdell
roughly twenty minutes before they were pulled over so that
Burdell could get a cigarette, and that, at that time, the
case did not contain heroin.
the jury found Mr. Simpson guilty, his trial counsel moved to
withdraw, citing "irreconcilable differences" with
Mr. Simpson. The district court granted the motion. Mr.
Simpson's new attorney timely moved for a new trial,
claiming that Mr. Simpson's trial counsel had been
ineffective. Specifically, the motion cited: (1) trial
counsel's failure to interview and call three witnesses
with potentially exculpatory evidence (Mr. Simpson's
mother, Donna Simpson; and two of his acquaintances,
Jacqueline Lintzenich and Zachary Hoffstot, who previously
had accompanied Burdell and Mr. Simpson on trips to buy
drugs); (2) trial counsel's failure to effectively
cross-examine the Government's witnesses (Burdell,
Winchester, and Zenner); (3) trial counsel's inaccurate
assessment of the Government's case, including advising
Mr. Simpson to reject a plea bargain; and (4) trial
counsel's failure to prepare Mr. Simpson to testify,
i.e., by not discussing his testimony with him or alerting
him that he would be subject to cross-examination.
support of the motion for a new trial, Mr. Simpson attached
an affidavit asserting that he had told his trial counsel
that he wanted to call his mother, Lintzenich, and Hoffstot
to testify, but that his counsel did not contact them. He
also submitted notarized letters from the three potential
witnesses. Donna Simpson stated that Burdell told her at the
time of Mr. Simpson's arrest that Mr. Simpson was
"tak[ing] the rap for [Burdell] and
[Winchester]." Lintzenich also heard Burdell and
Winchester say that Mr. Simpson "took the wrap [sic] for
purchasing the [h]eroin." She also stated that she never
saw Mr. Simpson sell heroin or buy drugs on other
"[d]rug runs" with Burdell and asserted that, in
the past, Mr. Simpson had "purchased [h]eroin for
personal use only." Hoffstot stated that he had witnessed
"Burdell buying the [h]eroin" on other trips to St.
Louis and that Mr. Simpson did not "deal"
considering this evidence, the district court denied the
motion for a new trial and declined to hold an evidentiary
hearing on Mr. Simpson's motion. The court concluded that
Mr. Simpson was "not entitled to an evidentiary hearing
because he ha[d] not alleged sufficient facts to show that he
suffered prejudice from his counsel's alleged trial
errors." Regarding his trial counsel's
failure to interview Donna Simpson, Lintzenich, and Hoffstot,
the court explained that ...