* The Honorabl e David L . Bunni ng, Unit ed Sta tes Dist ric t Ju dge f

or the Eastern Distri ct of Kentucky, si tting by designation.
1 RECOMMENDED FOR FULL-TEXT PUBLICATION Pursuant to Six

th Circuit Rul e 206
ELECTRO NIC CIT

ATION: 2004 FED App . 0063P (6th C ir.) File Name: 04a00 63p.06



### UNITED STATES COURT OF APPEALS

FOR THE SIXT H CIR CUIT

_________________
U NITED S TAT ES OF A MERICA ,

Plaintiff-Appellee,

v.

RYAN E. L EE , Defenda nt-Appel

lant. X - - - -
> , - - N No. 03-3496

Appeal from the United States District Court for the So uthern D istrict of

Ohio at Col

umbus. No. 02-00024—Algenon L. Ma rbley, District Judge. Submitted: December 4, 2003 Decided and Filed: February 27, 2004

Before: SIL

ER and GIL

MAN, Circuit Judges; BUNNING, District Judge. * 2 United States v. Lee No. 03-3496

_________________ COUNSEL
ON BRIE F: Is abel la Di xo n-Thom as, Columbus, Ohio, for App ellan t. Kevin W. Kelley, UNI TED STATES ATTORNEY, Columbus, Ohio, for Appellee.

_________________ OPINION

_________________ DAV ID L. BUNNI

NG, District Judge. This is a direct cri minal appeal from a perjury conviction pursuan t t o 18 U.S.C. §1623. Ryan L ee appeals his conviction on the basis of: (1) insufficiency of the evidence; (2) the denial of a motion to dismiss the indictment; (3) the court’s evidentiary rulings ; and (4) the d enial of his motion for judgment of acquitta l. The parties have

agree d to waive

oral ar gument, and, upon examination, we agree that oral ar gument i s not needed. Fed. R. App. P. 34(a). For the following reasons, we AFFIRM

. BACKGROUND
The indictmen

t again st Lee arose f

rom sworn

testimony he gave during h

is detentionhearing

before a feder al magi strate judge. Inan effort to convince the judge that he was a g ood
can d idatefor pre

trial re lease, L

ee testif ied about

his
em pl oym ent. More specifically , Lee testified that he met Jeffrey Brya nt and decided to invest money in B ryant’s restaura nt , Buckey

e Fried Chicken (“Buckey e Chicken”). Lee testified that he wor

ked atBuckey

e Chicken and had a 50% interest in the business. Lee st ated tha

t he prima

rily worked at Buckey

e Chicken during the week, not during the weeken ds; that h e worke d from ap proximatel

y 6: 30 a.m. to about 11:00 a.m. ; and that his duties included meeting vendors and

picking up supplies from Gordon Food Service.No. 03-3496 United States v. Lee 3

Lee explained that he had one office at t he restaurant, and Brya nt had the other. During cross-examination, Lee anno unced that he was refusingto answer any

more questions. After consulting with Lee, Lee ’s attorn ey withdrew L ee’s testimony. The magistr ate judge indicated that he would strike L ee’s testimony and no t cons ider i t in m aking h is decision regarding L ee’s bond.
After the detention hearing, the FBI investigated Lee ’s sta tementsregarding his employ ment at Buckey

e Chick en

. The results of

this invest

igation led to L ee being

charg ed with
one count of pe rjury

in violation of 18 U.S.C. §1623. The Indictment charg ed:
At the time and p lace al leged, the Court was eng aged in
a detention hearing to determine if there were a ppropria te conditions of release for

def end ant RYA N E. LEE. It
was a matter material to said detention hear ing to determine whether or not RYAN E. LEE ha d employ ment, specifically a t Buckey e Chicke n R estaura nt, 1971 East

Livin gston Av enue, Col

umb us , Ohio.

At the time a

nd place all eged, RYAN E. L

EE, while und er o ath, did kn

owingly declar e in resp onse to questions from his a

ttorney before said Co u rt with respect to the material matter alleged above, a s follows: Q: “Do you go to wor

k there every

day, or whe

re do, how of te n do y ou go to wo rk ?”
A: “Wellmostly just during the week, I’ m not
necessa rily there during the weekend bec ause we don’t normally have ve

ndors come through, usually I’m there in

the mornin

gs to hav e vendors come through, usually

I’m there in the morning s to accept vendors in. We got ch

icken coming in, w e got ro lls 4 United States v. Lee No. 03-3496

coming in, we got

uhm m, then I go over to GFS whichis the Gordon Food Ser vices a nd pick up supplies and di fferen t thi ngs like that and drop them off. So I’m usually

in there between 6: 30 and I’m out of there by a

bout 11:00 when we open.” Q: “If released on some sort of bond woul d you co nti nue to wor k th ere?”
A: “Yes, sir.”

Lee filed a mo tion to dismi s s the indictment, arguing that the magistrate’s decision to strike L ee’s testimony made hi s tes timony a “legal nullity .” The district court denied Le e’s motion to dismiss the ind ictment on

that basis

. A ttrial, the

United Sta

tes calle d six witness es. Brya n t testified that Lee never worked at Buckey e C hicken, had no role in the day-to-da

y operations, and ha

d no responsibilities at Buckey e Chicken. Brya

ntalso testified that Lee never had
anoffice at Buckey

e Chicken and was never given a key to the restaur

ant. Br ya nt acknow

ledged that L ee had le

nt him $33,000, and that he had signed a document in June of 2000 purporting to give L

ee a 40%

interest in t he Bu ck eye Chicken. However, Bry

ant explained that he never f ormally transferred

the ownership, and the document giving the 40%
was used only a “stalling

tactic.” Brya

nt stated that

Lee asked him to pay back the lo an by issuing pa yroll checks to Lee from Buckey

e Chicken, which Br

ya nt did for appr oximately eight to ten wee ks for a t otal of $4 18.00 af

ter taxes. Nicole McCullar, a

manager at Buckey

e Chicken, testified that she and Bry

ant were responsible for Buckey e Chicken’s day-to-da y operati ons. McCul lar state d that she kne w Lee
was at least

part owner, or a

“silent pa rtner” in the re stauran

t. McCullar testified t hat before the restaurant opened, L ee would run errands for Bry

ant and helpe d get the restaurant open. McCullar

stated that Lee would occasiona lly give he

r money to pa y f or items su

ch as let terhea d, busines s cards,No. 03-3496 United States v. Lee 5

computer equipmen

t, and tables. McCullar

explained

that it “wasn’t like [Lee] was working but he would be in the store .” McCullar testified that Lee did not direct employ ees, but i f he did, th ey kn ew t o l is ten to hi m b eca use of Le e’s conn ection to Bry ant.
McCullar stated that Lee never

op ened the store in the morni ng, did not have a key , and did not have an office a t Bu ck eye Chicken. McCullar stated that Lee may have picked up supplies once or twice. McCullar explained that Lee knew
some of the ve

ndors and would pay them, but he

never placed orders with them. Mc Cullar t estified that she had never observed Lee do any

work at the store at the time she was cutting pay checks f or him. Wayne Wise testifiedthat shor

tly after he began working

at Buc ke ye Chicken in December of 2001, he was g iven the responsi bility of openin

g the store. Wise explained that he would arrive at about 8:30 a.m. and only Keith “Pep” Bry

ant and McCullar ever

opened the store with him. Wise stated he
never knew of a

nyone wit h a first name of Ryan working at Buckey e Chicken. Ly nnBostelma

n of Gord

on Food Se

rvice ( “GFS”)also testified at trial. Bostelma

n explaine d that GF S is a

wholesa le food distributor. Bostelman testified that Bry ant, McCullar, and a man named Keith were the only people she ev e r dealt with as repr esentat ives of Buc keye Chicken. B ostelman indicated the Buckey

e Chicken bought

items from GFS every da y, and that she had been

out to the r

estaura nt sever al times. Bostelman

did not recognize Lee

when asked to look around the co ur tr oo m a nd po in t o ut an y re pr es en ta ti ve of Bu ck eye Chicken. Bostelman stated that she did not know anyone by the name of Rya

n Lee.
At the close of evid ence, Lee’ s counsel made a Rule 29 motion for judgment of acquittal . The dist rict c ourt j udge reserved on final d

ecision p ursu ant to Rule 29(b). After the jury returned its verdict of guilty, L

ee’s counsel made a Rule 6 United States v. Lee No. 03-3496

29 motion for acquittal notwithstanding the jury verdict. The court took the mo tion under

adviseme

nt. At the sentencing hearin g, the district court judge stated that he had considered the arguments of counsel rega rdi ng t he Rule 29 motion and was denying

the motion.

ANALYSIS
A. Sufficiency of Evidence
Onappeal from a criminal conviction , the question i s whether the relevant evidence, direct or cir cumstant ia l, viewed in the light most favorabl e to the governmen t, could be accepted by

a reason able-mi nded jury as a dequate and sufficient to support the conclusion of the defe ndant’s g uilt beyond a reas onable doubt. United Sta tes v. Me yers , 646 F.2d 1142, 1143 (6th Cir. 1981). This inquiry doesno t require a court

to “ask itself whether it believes the evidence at the trial establi shed guilt beyond a reasonable doubt, ... [but] if anyrational trier of fact could have found the e ssential elements.” Jackson

v. Virgini a , 443 U.S. 307, 312-13 (1979).

Inorder to

obtain a c onvictio n for p erjury in violation of 18 U.S.C. § 162 3, the g overnme nt must prov e that the defenda nt: (1) knowingly

made (2) a

mat erially

false de claration

(3) under oath (4) in a proceeding before or ancillary to any court of the

Uni t ed States. United States v. McKenna , 327 F.3d 830, 838 (6th Cir. 2003). A stateme nt is material if “it has the natural tendency to i nfluence, or was capable of influencing, the d ecisio n of the decision-making body to which it was addressed.” Id . at 839 (citation omitted);
see also Unite

d States v . Sassarel li, 118 F.3d 4 95, 499 (6 th Cir., 1997). Nor is it required that the government prove that the perjured testimony ac tually influenced the r

eleva n t decision-makingbody. McKenna, 327 F.3d at 839

. Further, materia li ty i s tested at the time the allegedly false statement was made

. Id. (emphasis added).No. 03-3496 United States v. Lee 7

At t rial, FBI Agent C reedon testi fied t hat du ring t h e detenti on hearing, Le e was placed under oath and took the witness stand t o testify on his own b ehalf a bout his employment

status. Leetestified that he worked at Bu ck eye Chickenand desc

ribed his duties at the restaurant. When asked if he went

to work every

day, or how often he worked, Lee stated that he worked during the week from approxima

tely 6:30 a.m. to about 11:00 a.m. Lee testified that his dutie s at Buckey

e Chicke n include d meeting

with vendors and picking up items from GFS. Lee indicated that he had an office at Buckey e Chicken. During the trial , Brya

nt, McCullar, and

Wise each testified that Lee did not work at Buc keye Chicken. Bry

ant and McCullar testified that L ee had no respons ibilities in th e d ayto-day op er at io ns at Bu ck eye Chicken. Wise testified that he
never saw Lee at Buckey e Chicken when he was opening the restaurant at 8:30 a. m. Brya

nt admitted that Lee had been “cut” Buckey

e Chicke n pay checks, but explained that th e checks were only to repay a loan. McCullar testified that she thought of Lee only

as a silent partner, a nd that Lee might have gone to

GFS twic e. Bo st el ma n t es ti fi ed th at Bu ck eye Chickenmade purchases every day at GFS, but she had never
seen Lee nor hear

d his name. Regardless of w hat Lee believed his role at Buckey

e Chicken to be, this testimony directly contr ad ic te d h is st at em en ts th at he wa s a t B uc ke ye Chicken“mostly” during the week, “us ually

” between the hours of 6 :30 and 11:00, and that he was meeting vendors there; a nd reg ularly making t rips to GF S.
Viewed i n the lig ht most favorable

to the government, the evidence was clea

rly sufficie nt for a r atio nal trier of f

act to find that L ee knowi

ngly made false and material declarations under oath during his de te ntion hea ring re gardin

g his employment

status at Buckey

e Chicken. Therefore, there was sufficient evidence presented at trial to sustain t he jury’s verdict

. 8 United States v. Lee No. 03-3496

B. Motion to Dis

miss the Indict

ment
A districtcou rt’s ref

usal to dism

iss an indic

tment is reviewed for an abuse of discretion. United States v. Powell , 823 F.2d 996, 1001 (6th Cir. 1986), ce rt. denied , 484 U.S. 969 (1987); United Sta tes v. Ov ermeye r, 899 F.2d 457 , 465 (6th Cir. 1990), cert. denied, 498 U.S. 939 (1990). In deny ing Lee’sMotion to Dismiss, the district court relied on Uni ted States v. Swi

ft , 809 F.2d 320 (6th Cir. 1987), and United States v. Sarihifard, 155 F.3d 301 (4th Cir. 1998).

In Swift , this cour

t held tha t a false statemen t’s failu re t o lead the tribunal astray is irr elevant for 1 8 U.S.C. § 1623 analy sis. 809 F.2d at 324. Th e court s tated tha t “a fals e declaration

satisfies the materiality re quirement if a truthful statement might have assisted or influenced the gr and jury in its investigation.” Id. (citing United States v. Richardson , 596 F.2d 157, 165 ( 6th

Cir. 1979) ); see also United States v. Lutz , 154 F.3d 581, 588 (6th

Cir.1998)(holding

that a statemen t is "mat erial" if it has the natural tendency to influence or i s capable of influencing a decision

making process; showing of actua l inf luence u nnecess ary

to prove material ity) ; United States v. DeZarn , 157 F.3d 1042, 1049 (6th Cir.1998) (same).

InSarihifard, it was con ceded that the de fendant ’s false statement to a grand

jury had no influence on the grand jury ’s decisionbecause the government la ter told the gran

d jury to disregard it because it was false. 155 F.3d at 307. However, the co ur t n ot ed th at “[ a] fa ls e s ta te me nt ’s ca pa ci ty t o influence the fact finder must be measure d at the po int in time that the stat ement was uttered.” Id. (citing United States v. Holley , 942 F.2d 916, 923 (5th Cir. 1991)). Therefore, the court stated that the fact that

the gove rnment told the grand jury not to rely

on the def

endant’ s testimony

was irre levant. Id. The cour

t stated that to hold o therwise would
allow witnesses who lie under oath to escapeprosecution if their sta tements before a

grand jury

are obviously fa

lse. This rationa

le prote cts witnesse s who fabricate testimonyNo. 03-3496 United States v. Lee 9

that a g ra nd ju ry w ill recog nize instantly as false. An argument for the creation of such

an incentiv e not only misconstrues the scope of materiality , it strains logic.
Id.
Lee’sst at em en ts re ga rd in g h is em pl oym en t a t B uc ke ye Chickenwere materialbecause that information was capable of influenc ing the magis tr ate judge’s decision as to whether Lee should remain in custody. Even thoug h Lee’stestimony was withdrawn and ultimately stricken, Lee’s testimony had the capaci

ty to influenc e the mag

istrate j udge a

t the time it
was given. A defendant cannot perjure himself and

then have his perjurious testimony stricken in order to escape prosecution. As recognized by the district court, to conclude otherwis e would lead

to absurd results. Therefore, the district court did not abuse its discretion in overruling Lee ’s Motion to Dismiss the Indictment.
C. Evidentiar

y ruling

A district court’s evidentiary rulings are reviewed under an abuseof discretion

standard. United States v. Garcia, 20 F.3d 670, 672 (6th Cir. 1994), cert. denied, 513 U.S. 1159 (1995); United States v. Hickey , 917 F.2d 901, 904 (6th Cir. 1990).

Lee argues that th e district court erred in not allowing the jury to hea r the p ortio n of th e deten tion hearin g t ranscr ipt where th e m ag is tr at e j ud ge st ru ck hi s a ll eg ed ly perju rious statemen ts from the rec ord. L ee’s argument is based on United States v. Gaudin , 515 U.S. 506 (1995), wherein the Supreme Court held

that the Constitution r

equir es th e judge to submit any question of materiality concerni ng a defendant’s false sta

tement to t

h e jury. I n Gaudin, the trial judge had ins tructed

the jury that “[t]he

issue of ma

teriality

. . . is not submitted to you for y ou r de cision but

rather is a matter for the decision of

the court. You are instructed that the statemen

ts charg ed in

the indictment are material statements.” Id. at 508. Th e Court he ld that be cause the trial 10 United States v. Lee No. 03-3496

judge had abro gated t

he jury ’s abil i ty to make factual determinations on one of the requisite elements of the offense,
a constitutional violation had occurred

. I d. at 523. Lee’s reliance on Gaudin is misplaced.
Unlike the case in Gaudin , the issue of materiality wa s submittedto the jury

during L

ee’s tri a l. The jury hear d testimony regarding the materia

lity of L ee’s statements at the detentionhearing, and then was spec ific ally instructe d to determine whether

Lee ’s s tate ments wer e materi al. Therefore, the distri ct court did not abrogate the jury ’s ability to ma ke a d et er mi na ti on re ga rd in g m at er ia li ty. Rather, the district court merely ruled, as a mat

ter of law, that the portion of the tr

anscrip t wherei

n the mag istrate

judge struck Lee ’s earli er testimony

was n ot rel evant an

d could mislead th e j ur y. Relying on Sarihifard and Swift, supra , the districtcourt explained that the magistrate judge’s statement that he would not consider Lee’ s testimony was not relevant because the mater

ia li ty of L ee’s testimony should be measured at the time that the statement was uttered.
Based on th is reasoning and the authority cited by the districtcourt, it was not a n abus e of discretion to exclude
e vidence showing that Lee’s te stimony was subsequen tl y stricken by the mag

istrate judge.

D. Rule 29 motion
The distr ict cour t’s refu sal to grant

a motion for judgment of acquitta l is a legal question that we review de novo

. United States v. Keeton , 101 F.3d 48, 52 (6th Cir. 1996) (citing United States v. Gibson, 896 F.2d 206, 209 (6th Cir. 1990)). We must determine “whether, after viewing the evi dence in the light most favorable to the prosecution, any r ational trier of fact could have fo und the es sential e lements of the crime beyond a reasonable doubt.” Jackson v. Virginia, 443 U.S. 307, 319 (1979 ). “Substa

ntial and compete nt” circumstantial evidence by itself may

support a v erdi ct and need notNo. 03-3496 United States v. Lee 11

“re move every

reasona ble hy pothesis e

xcept that o f guilt. ” United States v. Stone, 748 F.2d 361, 363 (6th C ir. 1984). The general hesitancy

to disturb a jury

ver dict appl ies with
even greater force w

hen a motion of acquittal has been thoroug hly considered and subsequently denied by the trial judge. United States v. Orrico , 599 F.2d 113, 116 (6th Cir. 1979).
As stated herein at Section

A, a per jury charg e pursua

nt to 18 U.S.C. § 1623 has four element s: (1) knowingly ma de; (2) a materially fa

lse declaration; (3) under oath; (4) in a proceeding

before or ancillary

to any cour t of the United States.
After the close of proof, the district court heard argume nts regarding Lee’s Rule 29 motion. L ee’s coun sel arg ued that the evidence indicated a belief on the part of Lee that he was 4 0% o wner of Buckey

e Chicken, that he had a stake in the busines s, and it was a place that he worked. The distri c t j udge agreed that some of the evidence could create a b elie f inLee’s mind that he was par t owner, but pointed out that Lee testified specific ally

that he was “usuall

y there between 6:30 and I’m out of there at about 11:00 whe n we open.” The court explained that this testimony wa s materia l becaus e it indicated that Lee would be

at a cer tain plac e during

specific h o urs during t

he week and had b earing

on his risk

of flig ht. However, there wa s no evidence that Lee was there during those hours . The co urt wa s pers uaded by the go vern ment’s argument th at Lee he ld hi ms el f o ut as an em pl oye e at the detentionhearing, y

et the testimony at trial indicated that Lee did not work at Buckey

e Chicken.

Lee argue s that the d

istrict c ourt err

ed in over

ruling h is Rule 29 motion, b ecause the gov ernme nt , in proving the element of falsity, improperly interjected its own interpretation

regar din g Lee’s statement

that he was employe d at Buckey e Chicken. Lee re lies on United St ates v. Sh otts , 145 F.3d 1289, 1298 (11th Cir. 1998), cert. denied, 525 U.S. 1177 (1999), f

or the pr oposition that a perjury

conviction 12 United States v. Lee No. 03-3496

must rest on the utterance by

the accused; it may

not stand on
a particular

interpretation

that the questioner places upon the
answer.
In Shotts , the Elevent

h Cir cuit reversed the perjury convictionbecause

the defendant’s st at em en t w as “l it er al ly” true, even if

it was als o “evasi

ve, nonr esponsive , intention

ally misleading and

arguably false.” Id . at 1299. The court stated that the ques t ioner ha s the burd en of pinn

ing the w

itness downto the specific object of inquiry

. Id. at 1 298, (citing Bronst on v. United States , 409 U.S. 352, 360 (1973)). The court explained : “If

a witness evad es, it is the lawyer’ s respon sibi lity

to recognize the evasion and to bring the witness back to the mark, t o flush out the whole truth w

iththe tools of adversary

examination.” Id. (quoting Bronston , 409 U.S. at 362).
Lee’sreliance on Shotts is misplaced. Unlike the defendant in Shotts , Lee did not

give a “literally” true

but unresponsive
answer. Lee stated where he worked , wh at his duties were, and what specific times he was at work during the week. The gover nm ent later investigated Le e’s statements concerning Bu ck eye Chicken, found them to be false, and sought an indictmentfo r p er

ju ry. Shotts is also dist

inguisha ble beca use Lee testified on direct examinat i on conducted by his own lawyer. When the government attempt ed t o cross-examine Lee about hisem pl oym en t a t B uc ke ye Chicken, Lee abruptly stopped testifying. The

refore, Lee made

it impossible for the go ve rn me nt to qu es ti on hi m a nd “f lu sh ” o ut hi s t es ti mo ny. The government presented witnesses at trial who testi fied that Lee’s statements wer

e fals e. None of the evidence supported Lee’s statement that he wa s “usually there be tween 6:30 and I ’m out of there at about 11:00 when we open.” Regar dless of Le e’s owne

rship inte rest, or involveme

nt in the operations o f Buckey

e Chicken, the evidence presented at trial controverted his statement tha t h e w as at Bu ck eye Chickenduring those specific times. Considering the
e viden ce in the light most favorable to the government, aNo. 03-3496 United States v. Lee 13

reasona ble jury could find that Lee’s statements we r e materially fa

lse. Furthermore, the district court thoroughly considered Lee’ s Rule 29 motion. The dist rict j udge heard the arguments of the parties, reserved the decision on t he motion in order to examine th e tr ans cri pt , an d t hen den ied Le e’s mo tion at the sente ncing. Therefore, “the ge neral hesitancy

to disturb a jury verdict applies with even greater force.”

For the fore going

reasons , the distr

ict cour t d id not err

in overruling Lee ’s Rule 29 motion.
AFFIRMED.