*

The Honorable David L. Bunning, United States District Judge for

the Eastern District of Kentucky, sitting by designation.

1

RECOMMENDED FOR FULL-TEXT PUBLICATION

Pursuant to Sixth Circuit Rule 206

ELECTRONIC CITATION: 2004 FED App. 0063P (6th Cir.)

File Name: 04a0063p.06

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

_________________

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v.

RYAN E. LEE,

Defendant-Appellant.

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No. 03-3496

Appeal from the United States District Court

for the Southern District of Ohio at Columbus.

No. 02-00024—Algenon L. Marbley, District Judge.

Submitted: December 4, 2003

Decided and Filed: February 27, 2004 

Before: SILER and GILMAN, Circuit Judges; BUNNING,

District Judge.*

2 United States v. Lee No. 03-3496

_________________

COUNSEL

ON BRIEF: Isabella Dixon-Thomas, Columbus, Ohio, for

Appellant. Kevin W. Kelley, UNITED STATES

ATTORNEY, Columbus, Ohio, for Appellee.

_________________

OPINION

_________________

DAVID L. BUNNING, District Judge. This is a direct

criminal appeal from a perjury conviction pursuant to

18 U.S.C. §1623. Ryan Lee 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 denial of his motion for judgment of

acquittal. The parties have agreed to waive oral argument,

and, upon examination, we agree that oral argument is not

needed. Fed. R. App. P. 34(a). For the following reasons, we

AFFIRM.

BACKGROUND

The indictment against Lee arose from sworn testimony he

gave during his detention hearing before a federal magistrate

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

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 the restaurant, and

Bryant had the other.

During cross-examination, Lee announced that he was

refusing to answer any more questions. After consulting with

Lee, Lee’s attorney withdrew Lee’s testimony. The

magistrate judge indicated that he would strike Lee’s

testimony and not consider it in making his decision

regarding Lee’s bond.

After the detention hearing, the FBI investigated Lee’s

statements regarding his employment at Buckeye Chicken.

The results of this investigation led to Lee being charged with

one count of perjury in violation of 18 U.S.C. §1623. The

Indictment charged:

At the time and place alleged, the Court was engaged in

a detention hearing to determine if there were appropriate

conditions of release for defendant RYAN E. LEE. It

was a matter material to said detention hearing to

determine whether or not RYAN E. LEE had

employment, specifically at Buckeye Chicken

Restaurant, 1971 East Livingston Avenue, Columbus,

Ohio.

At the time and place alleged, RYAN E. LEE, while

under oath, did knowingly declare in response to

questions from his attorney before said Court with

respect to the material matter alleged above, as follows:

Q: “Do you go to work there every day, or where do,

how often do you go to work?”

A: “Well mostly just during the week, I’m not

necessarily there during the weekend because we

don’t normally have vendors come through, usually

I’m there in the mornings to have vendors come

through, usually I’m there in the mornings to accept

vendors in. We got chicken coming in, we got rolls

4 United States v. Lee No. 03-3496

coming in, we got uhmm, then I go over to GFS

which is the Gordon Food Services and pick up

supplies and different things like that and drop them

off. So I’m usually in there between 6:30 and I’m

out of there by about 11:00 when we open.”

Q: “If released on some sort of bond would you

continue to work there?”

A: “Yes, sir.”

Lee filed a motion to dismiss the indictment, arguing that

the magistrate’s decision to strike Lee’s testimony made his

testimony a “legal nullity.” The district court denied Lee’s

motion to dismiss the indictment on that basis.

At trial, the United States called six witnesses. Bryant

testified that Lee never worked at Buckeye Chicken, had no

role in the day-to-day operations, and had no responsibilities

at Buckeye Chicken. Bryant also testified that Lee never had

an office at Buckeye Chicken and was never given a key to

the restaurant. Bryant acknowledged that Lee had lent him

$33,000, and that he had signed a document in June of 2000

purporting to give Lee a 40% interest in the Buckeye

Chicken. However, Bryant explained that he never formally

transferred the ownership, and the document giving the 40%

was used only a “stalling tactic.” Bryant stated that Lee asked

him to pay back the loan by issuing payroll checks to Lee

from Buckeye Chicken, which Bryant did for approximately

eight to ten weeks for a total of $418.00 after taxes.

 Nicole McCullar, a manager at Buckeye Chicken, testified

that she and Bryant were responsible for Buckeye Chicken’s

day-to-day operations. McCullar stated that she knew Lee

was at least part owner, or a “silent partner” in the restaurant.

McCullar testified that before the restaurant opened, Lee

would run errands for Bryant and helped get the restaurant

open. McCullar stated that Lee would occasionally give her

money to pay for items such as letterhead, business cards,
No. 03-3496 United States v. Lee 5

computer equipment, 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 employees, but if he

did, they knew to listen to him because of Lee’s connection

to Bryant.

McCullar stated that Lee never opened the store in the

morning, did not have a key, and did not have an office at

Buckeye Chicken. McCullar stated that Lee may have picked

up supplies once or twice. McCullar explained that Lee knew

some of the vendors and would pay them, but he never placed

orders with them. McCullar testified that she had never

observed Lee do any work at the store at the time she was

cutting paychecks for him.

Wayne Wise testified that shortly after he began working at

Buckeye Chicken in December of 2001, he was given the

responsibility of opening the store. Wise explained that he

would arrive at about 8:30 a.m. and only Keith “Pep” Bryant

and McCullar ever opened the store with him. Wise stated he

never knew of anyone with a first name of Ryan working at

Buckeye Chicken.

Lynn Bostelman of Gordon Food Service (“GFS”) also

testified at trial. Bostelman explained that GFS is a wholesale

food distributor. Bostelman testified that Bryant, McCullar,

and a man named Keith were the only people she ever dealt

with as representatives of Buckeye Chicken. Bostelman

indicated the Buckeye Chicken bought items from GFS every

day, and that she had been out to the restaurant several times.

Bostelman did not recognize Lee when asked to look around

the courtroom and point out any representative of Buckeye

Chicken. Bostelman stated that she did not know anyone by

the name of Ryan Lee.

At the close of evidence, Lee’s counsel made a Rule 29

motion for judgment of acquittal. The district court judge

reserved on final decision pursuant to Rule 29(b). After the

jury returned its verdict of guilty, Lee’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 motion under advisement. At the sentencing

hearing, the district court judge stated that he had considered

the arguments of counsel regarding the Rule 29 motion and

was denying the motion.

ANALYSIS

A. Sufficiency of Evidence

On appeal from a criminal conviction, the question is

whether the relevant evidence, direct or circumstantial,

viewed in the light most favorable to the government, could

be accepted by a reasonable-minded jury as adequate and

sufficient to support the conclusion of the defendant’s guilt

beyond a reasonable doubt. United States v. Meyers, 646

F.2d 1142, 1143 (6th Cir. 1981). This inquiry does not

require a court to “ask itself whether it believes the evidence

at the trial established guilt beyond a reasonable doubt, ...

[but] if any rational trier of fact could have found the essential

elements.” Jackson v. Virginia, 443 U.S. 307, 312-13 (1979).

In order to obtain a conviction for perjury in violation of

18 U.S.C. § 1623, the government must prove that the

defendant: (1) knowingly made (2) a materially false

declaration (3) under oath (4) in a proceeding before or

ancillary to any court of the United States. United States v.

McKenna, 327 F.3d 830, 838 (6th Cir. 2003). A statement is

material if “it has the natural tendency to influence, or was

capable of influencing, the decision of the decision-making

body to which it was addressed.” Id. at 839 (citation omitted);

see also United States v. Sassarelli, 118 F.3d 495, 499 (6th

Cir., 1997). Nor is it required that the government prove that

the perjured testimony actually influenced the relevant

decision-making body. McKenna, 327 F.3d at 839. Further,

materiality is tested at the time the allegedly false statement

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

At trial, FBI Agent Creedon testified that during the

detention hearing, Lee was placed under oath and took the

witness stand to testify on his own behalf about his

employment status. Lee testified that he worked at Buckeye

Chicken and described 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

approximately 6:30 a.m. to about 11:00 a.m. Lee testified

that his duties at Buckeye Chicken included meeting with

vendors and picking up items from GFS. Lee indicated that

he had an office at Buckeye Chicken.

During the trial, Bryant, McCullar, and Wise each testified

that Lee did not work at Buckeye Chicken. Bryant and

McCullar testified that Lee had no responsibilities in the dayto-day operations at Buckeye Chicken. Wise testified that he

never saw Lee at Buckeye Chicken when he was opening the

restaurant at 8:30 a.m. Bryant admitted that Lee had been

“cut” Buckeye Chicken paychecks, but explained that the

checks were only to repay a loan. McCullar testified that she

thought of Lee only as a silent partner, and that Lee might

have gone to GFS twice. Bostelman testified that Buckeye

Chicken made purchases every day at GFS, but she had never

seen Lee nor heard his name. Regardless of what Lee

believed his role at Buckeye Chicken to be, this testimony

directly contradicted his statements that he was at Buckeye

Chicken “mostly” during the week, “usually” between the

hours of 6:30 and 11:00, and that he was meeting vendors

there; and regularly making trips to GFS.

Viewed in the light most favorable to the government, the

evidence was clearly sufficient for a rational trier of fact to

find that Lee knowingly made false and material declarations

under oath during his detention hearing regarding his

employment status at Buckeye Chicken. Therefore, there was

sufficient evidence presented at trial to sustain the jury’s

verdict.

8 United States v. Lee No. 03-3496

B. Motion to Dismiss the Indictment

A district court’s refusal to dismiss an indictment is

reviewed for an abuse of discretion. United States v. Powell,

823 F.2d 996, 1001 (6th Cir. 1986), cert. denied, 484 U.S.

969 (1987); United States v. Overmeyer, 899 F.2d 457, 465

(6th Cir. 1990), cert. denied, 498 U.S. 939 (1990). In denying

Lee’s Motion to Dismiss, the district court relied on United

States v. Swift, 809 F.2d 320 (6th Cir. 1987), and United

States v. Sarihifard, 155 F.3d 301 (4th Cir. 1998).

In Swift, this court held that a false statement’s failure to

lead the tribunal astray is irrelevant for 18 U.S.C. § 1623

analysis. 809 F.2d at 324. The court stated that “a false

declaration satisfies the materiality requirement if a truthful

statement might have assisted or influenced the grand 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 statement is

"material" if it has the natural tendency to influence or is

capable of influencing a decision making process; showing of

actual influence unnecessary to prove materiality); United

States v. DeZarn, 157 F.3d 1042, 1049 (6th Cir.1998) (same).

In Sarihifard, it was conceded that the defendant’s false

statement to a grand jury had no influence on the grand jury’s

decision because the government later told the grand jury to

disregard it because it was false. 155 F.3d at 307. However,

the court noted that “[a] false statement’s capacity to

influence the fact finder must be measured at the point in time

that the statement 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 government told the grand

jury not to rely on the defendant’s testimony was irrelevant.

Id. The court stated that to hold otherwise would

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

that a grand jury will recognize instantly as false. An

argument for the creation of such an incentive not only

misconstrues the scope of materiality, it strains logic. 

Id.

Lee’s statements regarding his employment at Buckeye

Chicken were material because that information was capable

of influencing the magistrate judge’s decision as to whether

Lee should remain in custody. Even though Lee’s testimony

was withdrawn and ultimately stricken, Lee’s testimony had

the capacity to influence the magistrate judge at 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

otherwise would lead to absurd results. Therefore, the district

court did not abuse its discretion in overruling Lee’s Motion

to Dismiss the Indictment.

C. Evidentiary ruling

A district court’s evidentiary rulings are reviewed under an

abuse of 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 the district court erred in not allowing the

jury to hear the portion of the detention hearing transcript

where the magistrate judge struck his allegedly perjurious

statements from the record. Lee’s argument is based on

United States v. Gaudin, 515 U.S. 506 (1995), wherein the

Supreme Court held that the Constitution requires the judge

to submit any question of materiality concerning a

defendant’s false statement to the jury. In Gaudin, the trial

judge had instructed the jury that “[t]he issue of materiality

. . . is not submitted to you for your decision but rather is a

matter for the decision of the court. You are instructed that

the statements charged in the indictment are material

statements.” Id. at 508. The Court held that because the trial

10 United States v. Lee No. 03-3496

judge had abrogated the jury’s ability to make factual

determinations on one of the requisite elements of the offense,

a constitutional violation had occurred. Id. at 523. Lee’s

reliance on Gaudin is misplaced.

Unlike the case in Gaudin, the issue of materiality was

submitted to the jury during Lee’s trial. The jury heard

testimony regarding the materiality of Lee’s statements at the

detention hearing, and then was specifically instructed to

determine whether Lee’s statements were material.

Therefore, the district court did not abrogate the jury’s ability

to make a determination regarding materiality.

Rather, the district court merely ruled, as a matter of law,

that the portion of the transcript wherein the magistrate judge

struck Lee’s earlier testimony was not relevant and could

mislead the jury. Relying on Sarihifard and Swift, supra, the

district court explained that the magistrate judge’s statement

that he would not consider Lee’s testimony was not relevant

because the materiality of Lee’s testimony should be

measured at the time that the statement was uttered. 

Based on this reasoning and the authority cited by the

district court, it was not an abuse of discretion to exclude

evidence showing that Lee’s testimony was subsequently

stricken by the magistrate judge.

D. Rule 29 motion

The district court’s refusal to grant a motion for judgment

of acquittal 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 evidence in

the light most favorable to the prosecution, any rational trier

of fact could have found the essential elements of the crime

beyond a reasonable doubt.” Jackson v. Virginia, 443 U.S.

307, 319 (1979). “Substantial and competent” circumstantial

evidence by itself may support a verdict and need not
No. 03-3496 United States v. Lee 11

“remove every reasonable hypothesis except that of guilt.”

United States v. Stone, 748 F.2d 361, 363 (6th Cir. 1984).

The general hesitancy to disturb a jury verdict applies with

even greater force when a motion of acquittal has been

thoroughly 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 perjury charge pursuant to

18 U.S.C. § 1623 has four elements: (1) knowingly made;

(2) a materially false declaration; (3) under oath; (4) in a

proceeding before or ancillary to any court of the United

States. 

After the close of proof, the district court heard arguments

regarding Lee’s Rule 29 motion. Lee’s counsel argued that

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

business, and it was a place that he worked. The district

judge agreed that some of the evidence could create a belief

in Lee’s mind that he was part owner, but pointed out that Lee

testified specifically that he was “usually there between 6:30

and I’m out of there at about 11:00 when we open.” The

court explained that this testimony was material because it

indicated that Lee would be at a certain place during specific

hours during the week and had bearing on his risk of flight.

However, there was no evidence that Lee was there during

those hours. The court was persuaded by the government’s

argument that Lee held himself out as an employee at the

detention hearing, yet the testimony at trial indicated that Lee

did not work at Buckeye Chicken. 

Lee argues that the district court erred in overruling his

Rule 29 motion, because the government, in proving the

element of falsity, improperly interjected its own

interpretation regardingLee’sstatement that he was employed

at Buckeye Chicken. Lee relies on United States v. Shotts,

145 F.3d 1289, 1298 (11th Cir. 1998), cert. denied, 525 U.S.

1177 (1999), for the proposition 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 Eleventh Circuit reversed the perjury

conviction because the defendant’s statement was “literally”

true, even if it was also “evasive, nonresponsive, intentionally

misleading and arguably false.” Id. at 1299. The court stated

that the questioner has the burden of pinning the witness

down to the specific object of inquiry. Id. at 1298, (citing

Bronston v. United States, 409 U.S. 352, 360 (1973)). The

court explained: “If a witness evades, it is the lawyer’s

responsibility to recognize the evasion and to bring the

witness back to the mark, to flush out the whole truth with the

tools of adversary examination.” Id. (quoting Bronston, 409

U.S. at 362).

Lee’s reliance on Shotts is misplaced. Unlike the defendant

in Shotts, Lee did not give a “literally” true but unresponsive

answer. Lee stated where he worked, what his duties were,

and what specific times he was at work during the week. The

government later investigated Lee’s statements concerning

Buckeye Chicken, found them to be false, and sought an

indictment for perjury. Shotts is also distinguishable because

Lee testified on direct examination conducted by his own

lawyer. When the government attempted to cross-examine

Lee about his employment at Buckeye Chicken, Lee abruptly

stopped testifying. Therefore, Lee made it impossible for the

government to question him and “flush” out his testimony.

The government presented witnesses at trial who testified

that Lee’s statements were false. None of the evidence

supported Lee’s statement that he was “usually there between

6:30 and I’m out of there at about 11:00 when we open.”

Regardless of Lee’s ownership interest, or involvement in the

operations of Buckeye Chicken, the evidence presented at

trial controverted his statement that he was at Buckeye

Chicken during those specific times. Considering the

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.