1 

UNITED STATES DISTRICT COURT 

EASTERN DISTRICT OF MICHIGAN 

SOUTHERN DIVISION 

UNITED STATES OF AMERICA, 

 Plaintiff, Case No. 14-cr-20780 

 Hon. Matthew F. Leitman 

v. 

CURTIS SCOTT, 

 Defendant. 

__________________________________________________________________/

ORDER (1) DENYING DEFENDANT’S MOTION FOR A NEW TRIAL 

(ECF ## 144, 162) AND (2) DENYING DEFENDANT’S VARIOUS 

MISCELLANEOUS REQUESTS FOR RELIEF 

 On March 9, 2016, a jury found Defendant Curtis Scott guilty of aiding and 

abetting a carjacking, aiding and abetting the use and/or carrying of a firearm during 

a crime of violence, and making a false statement to a federal agent. Scott has now 

filed a motion for new trial pursuant to Rule 33 of the Federal Rules of Criminal 

Procedure. (See ECF ## 144, 162.) For the reasons explained below, the motion is 

DENIED. 

I 

 The government’s theory at trial was that Scott induced two impressionable 

teenage boys, Roland Hubbard and Dexavior Evans, to carjack a vehicle for him. 

The government contended that Scott drove Hubbard and Evans to scene of the 

carjacking and then led them away from the scene once they had stolen the vehicle. 
2 

The government argued that Scott wanted the vehicle in question (a 2006 Mercury 

Grand Marquis) because (1) Scott’s own vehicle (a 1996 Mercury Grand Marquis) 

was in poor shape and (2) Scott intended to replace parts on his vehicle with parts 

from the carjacked vehicle. The government also asserted that after the carjacking, 

Scott lied to federal agents about whether he had a cellular telephone that belonged 

to Hubbard. The government’s evidence included testimony from Evans directly 

implicating Scott in the carjacking, a video recording of the carjacked vehicle and a 

vehicle matching the description of a vehicle owned by Scott entering the freeway 

shortly after the carjacking, audio recordings of telephone conversations in which 

Scott made incriminating statements, and evidence that around the time of the 

carjacking, Scott’s cellular telephone was communicating with Hubbard’s phone and 

was in the vicinity of the carjacking. 

 Scott, who did not testify, presented an alibi defense to the charges. Three 

witnesses testified in support of that defense: Monico Hayes, Desmond Brooks, and 

Paijah McCloud. They told the jury that on the evening of the carjacking, Scott 

watched a movie with them during “family movie night” and then went to sleep. 

Scott’s defense also included a vigorous cross-examination of Evans, the 

government’s most important witness. The jury ultimately convicted Scott of the 

charges described above. 
3 

 Following the trial, Scott expressed dissatisfaction with his appointed trial 

counsel, Leroy Soles. He asked the Court to terminate Soles’ representation and to 

appoint substitute counsel to assist with post-trial matters, including sentencing. The 

Court granted that request and appointed attorney Patricia Maceroni to handle these 

remaining post-trial matters and to represent Scott on appeal. 

On February 17, 2017, Ms. Maceroni filed a motion for a new trial on Mr. 

Scott’s behalf. (See ECF #144.) In that motion, Ms. Maceroni primarily argued that 

Mr. Scott was deprived of the effective assistance of counsel when Mr. Soles 

suggested that one of Mr. Scott’s alibi witnesses, Paijah McCloud, could potentially 

have been involved in the carjacking. Ms. Maceroni also argued that Mr. Soles failed 

to investigate other important matters related to Scott’s defense. Finally, she 

contended that Scott was entitled to a new trial based on newly-discovered evidence 

– statements from two individuals who claimed that Evans had recanted his trial 

testimony implicating Scott in the carjacking. 

 Mr. Scott then sent the Court a letter complaining about Ms. Maceroni’s 

representation. The Court conducted a status conference on March 9, 2017, to 

inquire into Mr. Scott’s complaints. Mr. Scott told the Court that Ms. Maceroni had 

refused to raise in the new trial motion a number of issues that Scott had asked her 

to raise. (See March 9, 2017 Status Conf. Tr. at 30-31, 35, ECF #202 at Pg. ID 3129-
4 

30, 3134.) Scott was adamant that any motion for a new trial should fully present 

his issues. (See id.) 

 During this same status conference, Ms. Maceroni explained to the Court that 

she had considered all of the issues that Scott wished to raise, and had determined, 

in her professional judgment, that the issues Scott identified lacked merit and should 

not be raised. (See id. at 5-8, Pg. ID 3104-07.) Ms. Maceroni further opined that a 

conflict had arisen between herself and Mr. Scott and that, as a result, she could not 

continue to represent him. The Court thus permitted Ms. Maceroni to withdraw as 

counsel. 

 The Court then offered to appoint yet another attorney for Scott. (See id. at 

34-35, Pg. ID 3133-34.) Scott declined that offer because he did not want to wait 

for a new attorney to get up to speed on the case and because he was concerned that 

a new attorney might decline to present the issues he wished to raise. (See id. at 35-

36, Pg. ID 3134-35.) Scott instead indicated that he wanted to represent himself. 

(See id.) The Court advised Mr. Scott not to represent himself, informed Scott of 

the dangers of self-representation, and conducted a colloquy with Scott that closely 

tracked the waiver of counsel colloquy set forth in the Benchbook for the U.S. 

District Court Judges (4th ed.). (See id. at 38-43, Pg. ID 3137-42.) Scott then waived 

his right to counsel and began representing himself. (See id. at 43, Pg. ID 3142.) 
5 

The Court agreed to permit Mr. Scott to file a supplemental motion for new 

trial raising the additional issues that he wished to present to the Court. He did so 

on March 22, 2017. (See ECF #162.) 

 The government initially opposed Mr. Scott’s request for a new trial on the 

ground that Scott failed to file his motion within fourteen days of his conviction, as 

Rule 33(b)(2) of the Federal Rules of Criminal Procedure requires. (See ECF ## 148, 

167.) However, the government later asked the Court “to accept Scott’s untimely” 

filings. (ECF #169.) The government then responded on the merits to the arguments 

presented by Ms. Maceroni and by Scott in his supplemental motion. (See ECF 

#171.) 

 The Court next reviewed the parties’ submissions and determined that it 

needed to develop a factual record in order to resolve some (but not all) of the issues 

raised by Ms. Maceroni and Scott. (See ECF #180.) The Court set the matter for an 

evidentiary hearing. (See id.) The Court later identified eight issues on which it 

would receive testimony and evidence at an evidentiary hearing: 

1. The assertions in the affidavits of Monico Hayes 

and Paijah McCloud (ECF ## 144-1 and 144-2) that 

Hayes and McCloud informed Soles that they could 

present certain exculpatory testimony and that Soles 

unreasonably failed to elicit that testimony from 

them during their direct examination. The hearing 

will address whether Hayes and McCloud so 

informed Soles and, if they did so inform Soles, 

why Soles chose not to elicit the testimony. 
6 

2. The assertion in Scott’s affidavit (ECF #144-3) that 

Soles failed to investigate and present evidence that 

Tynisha Jones had damaged a 2005 Grand Marquis 

leased by her mother. The hearing will address 

whether Soles was told about this alleged evidence 

and, if he was, whether Soles investigated it and 

why he chose not to present it at trial. 

3. The assertion in Scott’s affidavit (ECF #144-3) that 

Soles failed to investigate and present evidence that 

Dexavior Evans had threatened Scott in phone calls 

that Evans made to Scott. The hearing will address 

whether Soles was told about this alleged evidence 

and, if he was, whether Soles investigated it and 

why he chose not to present it at trial. 

4. Scott’s assertion that Soles promised Scott that 

Soles would not impugn McCloud’s credibility or 

attack McCloud if Scott permitted Soles to remain 

as counsel. (See ECF #162 at Pg. ID 2753.) The 

hearing will address whether Soles made this 

alleged promise and, if he did, why he chose to 

suggest in his closing argument that McCloud may 

have been present at the time of the carjacking. 

[. . .] 

[5.] Attorney Soles’ failure to obtain tape recordings of 

a 911 call allegedly placed by Scott’s cellular 

telephone; 

[6.] Soles’ failure to call Demetrius McCloud as an alibi 

witness at Scott’s trial; 

[7.] Soles’ failure to investigate whether Tynisha Jones’ 

brother’s “baby mama” possessed a Ford 

Expedition that could have been driven by Dexavior 

Evans during the carjacking; and 
7 

[8.] Soles’ failure to investigate allegedly threatening 

behavior by Tynisha Jones against Scott at the 

“Scotch” party store/market. 

(Order, ECF #196 at Pg. ID 3086-88.) 

 The evidentiary hearing lasted two days. It commenced on November 7, 

2017, and concluded on March 12, 2018. At the commencement of the hearing, the 

Court identified one additional issue on which it would receive evidence: Scott’s 

claim that Soles failed to discover and present evidence that parts from the carjacked 

2006 Grand Marquis were not interchangeable with parts from Scott’s 1996 Grand 

Marquis. 

 Four witnesses testified at the evidentiary hearing: Scott, Soles, Roy 

McCallister (an investigator on Scott’s defense team), and Kurt Limburg (a service 

manager for a Lincoln-Mercury dealership). The Court finds that the testimony of 

Soles and McCallister was entirely credible, and the Court relies on much of that 

testimony in its analysis below. Soles and McCallister each presented with a 

believable demeanor, and they appeared candid and forthright in their testimony. To 

the extent that there were any conflicts in the testimony by Scott, on one hand, and 

the testimony of Soles and McCallister, on the other hand, the Court credits the 

testimony of Soles and McCallister. 

At the conclusion of the hearing, the Court allowed Scott and the government 

to file post-hearing briefs. Both Scott and the government filed supplemental briefs 
8 

(see ECF ## 355, 368), and Scott filed several replies to the government’s 

supplemental brief. (See ECF ## 374, 375, 377, 378.) 

II 

 Scott seeks relief under Rule 33 of the Federal Rule of Criminal Procedure.1

 

In relevant part, that rule provides: “Upon the defendant’s motion, the court may 

vacate any judgment and grant a new trial if the interest of justice so requires.” Fed. 

R. Crim. Proc. 33(a). “A motion for a new trial can be premised on the argument 

that the verdict was against the manifest weight of the evidence, and it can be 

premised on the argument that substantial legal error has occurred.” United States v. 

Callahan, 801 F.3d 606, 616 (6th Cir. 2015) (internal quotations omitted). 

“Although the Rule does not define ‘interest of justice,’ a violation of a defendant’s 

Sixth Amendment right to the effective assistance of trial counsel constitutes a 

substantial legal error such that a new trial is warranted.” United States v. Arny, 831 

F.3d 725, 730–31 (6th Cir. 2016) (internal quotations omitted). 

 

                                                            

1

 Scott’s supplemental motion (ECF #162) is somewhat difficult to follow, and it 

was a challenge for the Court to determine precisely which issues Mr. Scott is 

raising. The Court has made its best effort to discern and address both the claims 

that Scott has raised and the claims raised by Ms. Maceroni (which the Court readily 

understood). 
9 

III 

 Soles and his defense team (which included investigator McCallister, the 

former head of the Detroit Police Department homicide unit) spent 1,935 hours 

working on Scott’s defense. (See Nov. 7, 2017 Evid. Hearing Tr. at 191-93, ECF 

#261 at Pg. ID 3618-20.) Their hard work was obvious throughout the course of the 

proceedings. Indeed, they presented a vigorous defense on Scott’s behalf. They 

filed pre-trial motions to suppress certain evidence; successfully opposed the 

admission of unfairly prejudicial prior bad acts evidence that the government sought 

to introduce at trial; vigorously and effectively cross-examined Evans, the 

government’s key witness, and then argued extensively that Evans should not be 

believed; attacked the government’s contention that Scott had a motive to commit a 

carjacking; criticized the government’s assertion that Evans and Hubbard, the actual 

carjackers, were troubled teens; and explained to the jury why it should believe that 

the alibi witnesses could remember events from two years earlier. Nonetheless, 

Scott contends that Soles and his team failed to provide effective assistance of 

counsel. 

 Scott’s ineffective assistance claims are governed under the familiar standard 

established by the Supreme Court in Strickland v. Washington, 466 U.S. 668 (1984). 

In Strickland, the United States Supreme Court set forth a two-part test for evaluating 

claims of ineffective assistance of counsel. First, a defendant must show that his 
10 

counsel’s performance was deficient. Strickland, 466 U.S. at 687. “This requires 

showing that counsel made errors so serious that counsel was not functioning as the 

‘counsel’ guaranteed the defendant by the Sixth Amendment.” Id. Second, the 

defendant must show “that the deficient performance prejudiced the defense. This 

requires showing that counsel’s errors were so serious as to deprive the defendant of 

a fair trial, a trial whose result is reliable.” Id. 

 To satisfy the performance prong of Strickland, a defendant “must identify the 

acts or omissions of counsel that are alleged not to have been the result of reasonable 

professional judgment.” Id. at 690. A court’s scrutiny of counsel’s performance is 

highly deferential. See id. at 689. “[C]ounsel is strongly presumed to have rendered 

adequate assistance and made all significant decisions in the exercise of reasonable 

professional judgment.” Id. at 690. The burden is on the defendant to overcome the 

presumption that the challenged action was sound trial strategy. See id. at 689. 

 To satisfy the prejudice prong of Strickland, a defendant must show “a 

reasonable probability that, but for counsel’s unprofessional errors, the result of the 

proceeding would have been different.” Id. at 694. “This does not require a showing 

that counsel’s actions ‘more likely than not altered the outcome,’” but “[t]he 

likelihood of a different result must be substantial, not just conceivable.” Harrington 

v. Richter, 562 U.S. 86, 112 (2011) (quoting Strickland, 466 U.S. at 693). 
11 

A 

 The Court begins with the claims that Scott raised in his supplemental motion 

– i.e., the claims that Ms. Maceroni refused to present because she believed they 

lacked merit. 

1 

 Scott first argues that Soles was ineffective for failing to seek dismissal of the 

Superseding Indictment on the ground that the Superseding Indictment “was 

unreliable and false.” (ECF #162 at Pg. ID 2744.) However, Soles could not have 

moved to dismiss the Superseding Indictment based upon the evidence underlying 

that indictment because “courts evaluating motions to dismiss do not evaluate the 

evidence upon which the indictment is based.” U.S. v. Landham, 251 F.3d 1072, 

1080 (6th Cir. 2001); see also U.S. v. Short, 671 F.2d 178, 182 (6th Cir. 1982) 

(stating that the “validity of an indictment is not affected by the type of evidence 

presented to the grand jury, even though that evidence may be incompetent, 

inadequate, or hearsay”). Soles “cannot be deemed ineffective for failing to make a 

futile motion” attacking the Superseding Indictment. Farr v. Davis, 2012 WL 

707033, at *16 (E.D. Mich. Mar. 5, 2012) (citing U.S. v. Steverson, 230 F.3d 221, 

225 (6th Cir. 2000)). 

 
12 

2 

 Scott next contends that Soles was ineffective for failing to object to certain 

aspects of the government’s closing argument. First, Scott complains that Soles did 

not object to the government’s statement in its closing that Scott’s car was in bad 

shape – a claim the government made to support its theory that Scott had a motive 

to carjack a similar car to use as a source of replacement parts. (See ECF #162 at Pg. 

ID 2748.) But Soles did not ignore the government’s contention concerning the 

description of Scott’s car. Instead, he specifically attacked that assertion in his 

closing argument. (See Jury Trial Tr. at 79-80, ECF #124 at Pg. ID 1855-56.) Soles’ 

decision to address the government’s claim concerning the condition of Scott’s car 

through argument in his own closing rather than through an objection to the 

government’s closing was not unreasonable. See, e.g., Searcy v Berghuis, 549 Fed. 

App’x 357, 362 (6th Cir. 2013) (holding that counsel was not ineffective for 

withholding objection to prosecutor’s closing argument where counsel responded to 

objectionable portion of prosecutor’s closing in his own closing). Moreover, Scott 

has not shown that he suffered prejudice from Soles’ decision to attack the 

government’s claim in his own closing rather than by objecting during the 

government’s closing. 

 Second, Scott complains that Soles failed to object to the government’s 

statement in its closing that Evans never denied his involvement in the carjacking. 
13 

(See ECF #162 at Pg. ID 2748.) But Soles specifically highlighted in his closing 

argument that Evans did previously suggest that he may not have been involved in 

the carjacking. (See Jury Trial Tr. at 95, ECF #124 at Pg. ID 1871.) Soles’ decision 

to address the government’s statement in its closing in his closing rather than through 

an objection to the government’s closing was not unreasonable. See Searcy, 549 Fed. 

App’x at 362. And Scott has not shown that he suffered prejudice from Soles’ 

decision to confront the government’s contention during his closing rather than by 

objecting during the government’s closing. 

 Third, Scott complains that Soles failed to object to the government’s 

statement in its closing that Evans consistently admitted his criminal history. (See 

ECF #162 at Pg. ID 2748.) But Soles noted during his closing argument that Evans 

had attempted to deny and/or minimize culpability for some of his criminal history. 

(See Jury Trial Tr. at 93, ECF #124 at Pg. ID 1869.) Soles’ decision to address the 

government’s claim in its closing in his own closing rather than through an objection 

to the government’s closing was not unreasonable. See Searcy, 549 Fed. App’x at 

362. And, again Scott has not shown that he suffered prejudice from Soles’ decision 

to attack the government’s assertion during his closing instead of objecting to the 

government’s closing. 

 Fourth, Scott argues that Soles was ineffective for failing to object to the 

government’s statement in its closing that Scott admitted his involvement in the 
14 

carjacking during one of the recorded telephone conversations. (See ECF #162 at 

Pg. ID 2748.) But there was no basis for an objection. The government was 

permissibly arguing its interpretation of the recorded evidence that was played for 

the jury, and that interpretation was not unreasonable. The government’s description 

of Scott’s statements was well within proper bounds. See U.S. v. Henry, 545 F.3d 

367 (6th Cir. 2008) (noting that the Sixth Circuit “afford[s] wide latitude to a 

prosecutor during closing argument”). Soles was not ineffective for failing to make 

an objection to the government’s characterization of the recording that would have 

been overruled. 

 Fifth, Scott contends that Soles should have objected when the government 

said in its closing that after the carjacking the “Grand Marquis [the stolen car] while 

on the entrance ramp [was] closely following behind the blue Expedition [Scott’s 

vehicle].” (ECF #162 at Pg. ID 2748.) Scott says that the Grand Marquis was never 

behind the Expedition. Soles was not ineffective for failing to object to this 

statement because the statement was not particularly important. The jury had seen 

a video recording of the vehicles entering the highway, and thus it was well aware 

of the actual order of the vehicles. It was not unreasonable for Soles to withhold an 

objection on this minor point, and even if the failure to object could be deemed 

unreasonable, Scott has not shown that the lack of an objection on this issue caused 

him prejudice. 
15 

 Sixth, Scott complains that Soles failed to object when, during closing 

argument, the government commented on the refusal of the defense alibi witnesses 

to speak to law enforcement in the months between the Superseding Indictment and 

trial. Some background is helpful in understanding this aspect of Scott’s claim. 

During cross-examination of the defense alibi witnesses, the government elicited 

that even though those witnesses claimed to have exculpatory alibi information, they 

made no effort to provide that information to law enforcement and declined to speak 

with agents when contacted. Then, during closing argument, the government 

contended that the witnesses should not be believed because they waited until trial 

to tell their stories and avoided telling their stories to the investigators. (See Jury 

Trial Tr. at 67, ECF #124 at Pg. ID 1843.) Scott now argues that the government 

improperly commented on the witnesses’ invocation of their Fifth Amendment right 

to remain silent and that Soles should have objected to the government’s improper 

commentary. 

But Scott has not persuaded the Court that Soles could have made a 

meritorious objection to the government’s comments. Scott has not cited any 

authority for the proposition that Scott would have had standing to complain about 

an aspect of the government’s closing that supposedly infringed the witnesses’ Fifth 

Amendment rights (not Scott’s). More importantly, Scott has not cited any authority 

to support his argument that the government’s comments were an improper attack 
16 

on the witnesses’ credibility or that the comments violated the Fifth Amendment in 

any way. It was certainly fair for the government to impugn the credibility of the 

alibi witnesses by highlighting that they did not come forward sooner with their 

supposedly-exculpatory information. Scott has not demonstrated that Soles was 

ineffective for failing to object to the government’s attack on the alibi witnesses. 

 Finally, Scott alleges that Soles failed to make a number of other objections 

to the government’s closing, but the matters Scott identifies were not particularly 

important. Thus, Soles reasonably could have chosen to withhold objection, and 

Scott has not shown that Soles’ failure to object on these collateral issues caused 

prejudice. 

3 

Scott argues that Soles was ineffective for failing to move to suppress certain 

cellular telephone records that the government obtained from Metro PCS. (ECF #162 

at Pg. ID 2751, 2760.) Metro PCS provided the records in question to state law 

enforcement officers in response to a January 9, 2014, order issued by the 48th 

District Court for the State of Michigan. (See Order, ECF #21-4.) That court issued 

its order pursuant to the Stored Communications Act, 18 U.S.C. § 2703(d). The 

records related to Scott’s cellular telephone and revealed, among other things, the 

location of cellular towers with which the phone connected over a period of many 

months. 
17 

Scott contends that Soles should have moved to suppress (and/or objected to 

the admission of) the records on the ground that they were not obtained through a 

search warrant.2

 (See ECF #162 at Pg. ID 2751, 2760, 2763.) Scott insists that the 

government needed a warrant to obtain the records because the records revealed his 

location over an extended period of time. He says that the records “would have been 

suppressed due to the long term GPS tracking” and that the government could not 

have secured admission of the records through the “good faith exception.” (Id. at Pg. 

ID 2751.) 

But the United States Court of Appeals for the Sixth Circuit recently reached 

the opposite conclusion. See United States v. Pembrook, 876 F.3d 812, 822-24 (6th 

                                                            

2

 Soles actually did move to suppress the Metro PCS records obtained pursuant to 

the January 9, 2014, state-court order (and other records) earlier in the case (see ECF 

#16), but the request to suppress those particular records was mooted when the 

government indicated that it would not seek to introduce them against Scott. (See 

Notice, ECF #31.) All of this occurred when the parties were proceeding under the 

original Indictment which contained only a single count of making a false statement 

to a government agent. The government later filed a Superseding Indictment that 

added the carjacking charge. (See Superseding Indictment, ECF #45.) At that point, 

Soles renewed the motion to suppress (see ECF #61), and the Court denied it. (See 

ECF #62.) At the time Soles filed his renewed motion, the government still did not 

intend to introduce against Scott the records it obtained under the January 9, 2014, 

state-court order. Accordingly, neither Soles’ renewed motion to suppress nor the 

Court’s ruling denying that motion addressed the admissibility of those records. 

However, the government later decided that it would seek to introduce at least some 

of the Metro PCS records that were obtained under the January 9, 2014, state-court 

order. Scott’s current complaint is that Soles was ineffective for failing to reassert 

his objection to admission of those records once the government decided to introduce 

them. 
18 

Cir. 2017). That court held that the good faith exception did apply and that 

suppression was not an appropriate remedy where (during 2014) officers obtained 

cell tower location information via a Stored Communications Act order rather than 

through a search warrant. See id. The Sixth Circuit explained: 

The district court denied the defendants’ motion to 

suppress and held that, even if mistaken, the government 

had “an objectively reasonable good-faith belief” that 

no warrant was required. [U.S. v.] Pembrook, 119 

F.Supp.3d [577,] 595–96 [(E.D. Mich. 2015)]. “[N]o 

Supreme Court authority established by mid–2014 that 

obtaining cell-site data—even data that might reveal [the 

defendants’] daily travel over a six-week period or 

disclose [their] presence in a private place—was a search 

within the meaning of the Fourth Amendment,” id. at 591; 

nor did any Sixth Circuit case establish such precedent, id. 

at 592–93; nor was the out-of-Circuit precedent 

compelling (or consistent), id. at 593-95. The district court 

concluded that, “[a]lthough it may ultimately become 

settled [law] that long-term tracking via cell phones ... 

requires a warrant supported by probable cause, that law 

was not established at the time the Government sought and 

obtained the cell-site data at issue in this case. Deterrence, 

therefore, will not be forwarded by suppression.” Id. at 

599. We agree and find no constitutional reason to 

suppress the cell-tower location evidence. 

Id. at 823 (emphasis added). 

 As Pembrook makes clear, even if law enforcement officers violated the 

Fourth Amendment by obtaining the Metro PCS records without a warrant,3

 the 

                                                            

3

 The Court’s analysis above assumes that the Fourth Amendment’s warrant 

requirement applies to the records in question. But that is not clear today – and was 

even less clear at the time of trial in this case. The weight of authority at the time of 
19 

records were nonetheless not subject to suppression. Thus, Scott has not shown that 

he suffered prejudice as a result of Soles’ failure to move to exclude the records. 

4 

 Scott next asserts that Soles failed to investigate, and make use of, certain 

comments by a judge in the state court criminal prosecution of Hubbard for the 

carjacking.4

 According to Scott, at Hubbard’s state court preliminary examination 

on the carjacking charge, a state district judge made certain observations about what 

he believed was depicted on a video recording of certain events on the night of the 

carjacking. Scott insists that the state judge’s comments were helpful to his defense 

in this case, and Scott says that Soles erred by not discovering and seeking to admit 

the comments here. (See ECF #162 at Pg. ID 2752-53, 2755.) But Scott has failed 

to show that the state judge’s opinion of what the video depicted would have been 

admissible at his trial. Thus, Scott is not entitled to relief based upon Soles’ failure 

to have the state judge’s comments admitted at this trial. 

 

                                                            

trial held that a cell phone subscriber lacked an expectation of privacy in historical 

cell phone records like those from Metro PCS that the government used against Scott 

in this case. See, e.g., United States v. Davis, 785 F.3d 498, 511-12 (11th Cir. 2015); 

In re Application of the United States for Historical Cell Site Data, 724 F.3d 600, 

611-15 (5th Cir. 2013). And after trial, the Sixth Circuit held that the Fourth 

Amendment is not implicated when the government obtains historical cellular 

telephone billing and call detail records. See United States v. Carpenter, 819 F.3d 

880, 890 (6th Cir. 2016), cert. granted, 137 S. Ct. 2211 (2017). 

4

 Unlike Scott, Hubbard was prosecuted in state court for the carjacking. 
20 

5 

 Scott further maintains that Soles failed to notify the Court about 

“unauthorized communications” between a juror and the lead FBI case agent. (ECF 

#162 at Pg. ID 2742.) Scott says that he personally raised this issue with the Court 

on March 9, 2016. (See id.) The March 9, 2016, transcript reveals that Scott 

informed the Court that he and Soles saw that “one of the jurors was smiling” at the 

agent. (Jury Trial Tr. at 133, ECF #124 at Pg. ID 1909.) Soles was not ineffective 

for failing to seek some unspecified relief based upon an alleged “smile.” And Scott 

has not presented the Court with any reason to believe that there is any possibility 

that any government agent improperly communicated with members of the jury 

during the trial. Thus, Scott is not entitled to relief on his claim that Soles 

unreasonably failed to challenge improper communication between the government 

and the jury. 

6 

 Scott complains that Soles (1) failed to object under Batson v Kentucky, 476 

U.S. 79 (1986), when the government improperly used a peremptory challenge 

against an African-American juror (juror #5) and (2) failed to inform the Court that 

one of the government prosecutors said “my racism is showing” once jury selection 

was complete. (ECF #162 at Pg. ID 2763.) But Soles did raise a Batson challenge 

to the government’s exercise of the peremptory challenge (see Voir Dire Tr. 180-
21 

186, ECF #131 at Pg. ID 2120-26), and the Court overruled the objection. Thus, 

there is no basis for Scott’s claim that Soles was ineffective for failing to make such 

a challenge. Moreover, as Scott acknowledges, he personally told the Court about 

the prosecutor’s “my racism is showing” statement. (ECF #162 at Pg. ID 2754.) 

Thus, even if Soles did not raise the issue, Scott has not shown prejudice from that 

failure because the Court was aware of the issue. Finally (and in any event), the 

Court is certain that the prosecutor’s comment (1) was a sarcastic response to what 

the prosecutor regarded as an unfounded allegation of discrimination and (2) was 

not an acknowledgment by the prosecutor that she, in fact, harbored racist views or 

exercised a peremptory challenge against an African-American juror based upon the 

juror’s race.5

 The prosecutor’s statement does not in any way undermine the Court’s 

confidence in its decision to overrule Soles’ Batson objection. This is a further 

reason that Scott has not shown prejudice from Soles’ failure to inform the Court 

about the prosecutor’s sarcastic comment. 

7 

 Scott next argues that Soles failed to inform the Court that the government 

allegedly attempted to intimidate two of Scott’s witnesses – Erica Jones and Paijah 

McCloud – into declining to testify on Scott’s behalf. But both of those witnesses 

did testify on Scott’s behalf, and Scott has not shown that they limited their 

                                                            

5

 The Court does not believe that the prosecutor in fact harbors racist views. 
22 

testimony in any way due to the alleged threats by the government. Nor has he shown 

that the alleged threats impacted his defense in any material way. Thus, Scott has 

not shown that he was prejudiced by Soles’ failure to inform the Court about the 

purported witness intimidation by the government. 

8 

 Scott contends that Soles was ineffective for failing to obtain recordings of 

911 calls allegedly placed from Scott’s cellular telephone on the day of the 

carjacking. Scott argues that the recordings would support his position that he did 

not have his phone and was not present at the scene of the carjacking. 

 But Scott has not shown that Soles and the defense team could have obtained 

these recordings. The carjacking occurred on November 12, 2013. Soles was not 

appointed to represent Scott until more than one year later. (See ECF #6.) 

McCallister testified that he informed Soles that, based upon his extensive law 

enforcement background, the 911 recordings would not be available so long after 

the calls were made. (See Mar. 12, 2018 Evid. Hearing Tr. at 89, ECF #344 at Pg. 

ID 4097.) Scott has not presented any evidence that the recordings were still in 

existence at the time Soles was appointed as counsel. On this record, Scott has failed 

to show that Soles unreasonably failed to obtain the recordings or that he (Scott) 

suffered prejudice related to Soles’ alleged failure to obtain the recordings. 
23 

9 

 Scott argues that Soles was ineffective for failing to call Demetrius McCloud 

as an additional alibi witness. The Court disagrees. 

 Demetrius McCloud was a teenager who was supposedly present with Scott 

for some portion of family movie night at the time of the carjacking. Soles was 

aware of Demetrious McCloud but chose not to call him for several reasons. First, 

Soles thought he had enough alibi witnesses and did not feel that a fourth materially 

added to the defense. (See Nov. 7, 2017 Evid. Hearing Tr. at 185, ECF #261 at Pg. 

ID 3612.) Second, Demetrius McCloud could not account for Scott’s whereabouts 

following the end of the movie; the only person who could account for Scott at that 

time – Monico Hayes – was already on the defense witness list. (See id. at 185-86, 

Pg. ID 3612-13.) Third, Scott did not ask Soles to call Demetrius McCloud as an 

alibi witness. (See id. at 186, Pg. ID 3613.) Finally, Soles was “concerned about too 

many young people testifying on Scott’s behalf because it fit with [the 

government’s] theory that [Scott] was this manipulative person” with respect to 

young people. (Id. at 220-21, Pg. ID 3647-48.) 

 Soles’ reasons for not calling Demetrius McCloud are reasonable strategic 

justifications. Thus, Soles did not render deficient performance by omitting 

Demetrius McCloud from the defense witness lineup. 
24 

 Finally, Scott has not demonstrated prejudice as a result of the omission of 

testimony from Demetrius McCloud. Scott has not presented an affidavit from 

Demetrius McCloud, and he has made no showing as to what testimony Demetrius 

McCloud actually could have offered. On this record, Scott has not shown that the 

failure to call Demetrius McCloud prejudiced him. 

10 

 Scott next contends that Soles missed an opportunity to present evidence that 

may have suggested that Evans committed the carjacking without any involvement 

by Scott. This evidence was connected to a woman named Tynisha Jones who was 

known to both Scott and Evans. Jones testified as a witness for the government at 

trial. 

Scott complains that Soles failed to present evidence that Jones’ brother’s 

“baby mama” had a Ford Expedition. (ECF #355 at Pg. ID 4210.) Scott says that he 

could have used this evidence to suggest that Evans had access to, and was driving, 

the Expedition during the carjacking. Scott argues that this evidence would have 

undermined the government’s claim that he was driving the Expedition during the 

carjacking. Scott also insists that this evidence could have supported his theory that 

Evans carried out the carjacking at Jones’ behest. The Court rejects the claim related 

to the “baby mama” of Jones’ brother for two reasons. 
25 

 First, the Court credits and accepts Soles’ testimony that Scott never 

mentioned this issue. (See Nov. 7, 2017 Evid. Hearing Tr. at 187, ECF #261 at Pg. 

ID 3614.) Soles did not act unreasonably in failing to investigate and present 

evidence about which Scott never informed him and about which he had no reason 

to know. 

 Second, Scott has not shown that the absence of this evidence caused him 

prejudice. The evidence is, at best, tangential, and any connection between Evans 

and the “baby mama’s” car is purely speculative. 

11 

 Finally, Scott argues that Soles was ineffective for failing to investigate 

allegedly-threatening behavior that Jones directed toward Scott at a party store while 

Scott was free on bond in this case. Scott says that the evidence could have been 

used to undermine the credibility of testimony that Jones offered as a government 

witness at trial. Scott is not entitled to relief on this claim. 

 During Scott’s testimony at the evidentiary hearing, he explained that this 

claim is based in large part upon the failure of Soles and McCallister to obtain a 

video recording of the interaction from the party store at which it occurred. (See id.

at 66-67, ID 3493-94.) But Scott admitted that the video likely did not capture the 

audio of the exchange (see id. at 67, Pg. ID 3494), and thus there is no basis on which 
26 

to conclude that the video would have lent material support to Scott’s defense. Soles 

did not act unreasonably in failing to secure the video under these circumstances. 

 Moreover, Scott has failed to show that the absence of the video recording 

caused him prejudice. As noted above, Scott has not shown that the video recording 

contained audio of the conversation, and without audio, the recording would not 

have meaningfully corroborated Scott’s claim that Jones threatened him. 

Furthermore, as Scott conceded at the evidentiary hearing, Soles “extensively” 

cross-examined Jones concerning her bias against Scott and her motive to testify 

falsely against him. (Id. at 92-93, Pg. ID 3519-20.) For instance, Soles induced Jones 

to concede that (1) her prior romantic relationship with Scott ended when Scott 

became involved with another woman and (2) Scott did not help her with her baby 

but Evans did. (See id. at 93-95, Pg. ID 3520-22.) Simply put, Soles effectively 

showed the jury that Jones may have harbored bias against Scott and that she may 

have had a motive to lie, and the video recording of the encounter between Scott and 

Jones at the party store would not have added much to that showing. Thus, Scott 

has failed to demonstrate that he suffered prejudice from the absence of the 

recording. 

 
27 

B 

 The Court now turns to the ineffective assistance claims raised by Ms. 

Maceroni on behalf of Scott. (For ease of reference, the Court will still refer to these 

as “Scott’s claims” and “Scott’s arguments.”) 

1 

 Scott argues that Soles was ineffective because during Soles’ closing 

argument, he “[d]iscredit[ed] the credibility of Paijah McCloud, Mr. Scott’s alibi 

witness.” (ECF #144 at Pg. ID 2468.) The Court disagrees. 

a 

Some background is needed in order to understand Scott’s claim related to 

Soles’ treatment of McCloud during his closing. As the trial approached, Soles and 

Scott clashed on the issue of whether the defense should call McCloud as a witness. 

Scott wanted to call her to support his alibi defense by presenting testimony that she 

was with him at “family movie night” on the night of the carjacking. Soles strongly 

objected. He was concerned that calling McCloud would open the door to the 

admission into evidence of a recording containing damaging statements to the 

defense. (See Nov. 7, 2017 Hearing Tr. at 207-09, ECF #261 at Pg. ID 3634-36.) 

He was also concerned that calling McCloud – a teenager – and having her testify 

about time spent with Scott would lend support to the government’s theory that Scott 

manipulated children. (See id. at 205, Pg. ID 3632.) Soles was also concerned that 
28 

the relationship between McCloud and Scott would appear “strange” to the jury and 

could raise concerns in the jury’s mind about whether Scott was having an 

inappropriate sexual relationship with McCloud. (See id. at 206, Pg. ID 3633.) 

The dispute between Soles and Scott related to McCloud came to a head on 

March 7, 2016, as the defense was presenting its case. During an in camera

proceeding, Scott and Soles told the Court about their disagreement. (See Jury Trial 

Tr. at 140, ECF #132 at Pg. ID 2277.) As the discussion proceeded, Soles said that 

he refused to call McCloud, and the Court then informed Scott that he had two 

choices – (1) continue to retain Soles as counsel and without McCloud as a witness 

or (2) represent himself with McCloud as a witness. Scott said that he would stick 

with Soles even though Soles would not call McCloud. 

Scott apparently continued to press Soles on the McCloud issue, and Soles 

reluctantly relented. Soles called McCloud as the final defense witness on March 8, 

2016. On direct examination, she testified that she picked Scott up at roughly 6:50 

p.m. on the evening of the carjacking (which actually occurred at roughly 5:00 a.m. 

the following morning); that she drove Scott to family movie night at her mother’s 

house; that the family members watched a movie; and that she then left the room in 

which the movie had been playing and went to bed “kind of late” – at a time she 

cannot remember. (Jury Trial Tr. at 63-65, ECF #123 at Pg. ID 1615-17.) 
29 

The government’s cross-examination of McCloud then went much as Soles 

feared it would. The government elicited that Scott lived at her residence; that they 

also worked together; and that McCloud had spoken to law enforcement officers at 

least two times during their investigation of the carjacking but that she had never 

before mentioned family movie night. The government also asked McCloud about 

damaging statements she had made on a recorded telephone call with Hubbard. In 

a series of answers that came across as lacking credibility, McCloud denied recalling 

and/or attempted to minimize the significance of her statements during the call. (See 

id. at 76-78, Pg. ID at 1628-30.) 

As Soles prepared for his closing argument, he was wrestling with what he 

perceived to be one of the key challenges in his closing: trying to place Mr. Scott’s 

cell phone – which, as noted above, was in the vicinity of the carjacking at the time 

of the carjacking and was communicating with Hubbard’s phone at that time – in the 

hands of someone other than Scott. (See Nov. 7, 2017 Evid. Hearing Tr. at 115-17, 

ECF #261 at Pg. ID 3542-44.) Soles regarded this as a daunting challenge because 

“there was no evidence that anybody took [Scott’s] phone” and because “the only 

person who could have said that [Scott’s phone had been stolen] was [Scott who] 

didn’t testify.” (Id. at 117, Pg. ID 3544.) 

The night before Soles’ closing argument, he decided that he would suggest 

to the jury that three people could have had Scott’s phone at the time in question: 
30 

Hubbard, Evans, or McCloud. Soles decided to include McCloud on this list even 

though suggesting that she could have had the phone at the time of the carjacking 

(1) was inconsistent with her alibi testimony and (2) suggested a possible link 

between her and the carjacking. 

Soles made a strategic decision that the benefits of expanding the list of 

possible phone possessors to include McCloud outweighed the risks of doing so in 

several respects. First, he thought that he had little to lose by distancing Scott from 

McCloud’s alibi testimony because he believed that jury did not see her as 

“trustworthy” and did not have “a lot of esteem for” her. (Id. at 211, Pg. ID 3638; 

see also id. at 213, Pg. ID 3640.) Simply put, Soles “thought her testimony had been 

damaged, that she was not believable.” (Id.) Second, Soles did not think that 

McCloud’s testimony, even if accepted by the jury, added much to Scott’s claimed 

alibi because McCloud “went to bed” before the carjacking occurred and thus could 

not account for Scott’s whereabouts at that critical time. (Id. at 185, Pg. ID 3612.) 

Third, Soles thought it was plausible to suggest that McCloud may have had Scott’s 

phone and been working in conjunction with Evans at the time of the carjacking 

because there was evidence that McCloud had previously spent the night with Evans 

and kissed him. (See id. at 212, Pg. ID 3639.) In short, Soles decided to implicate 

McCloud because he “need[ed] to put [Scott’s] phone in somebody else’s hand,” and 

he thought it was worth the risk. (Id.) 
31 

After reaching that decision, Soles placed a telephone call to Scott and told 

Scott that he was going to include McCloud on the list of possible phone possessors. 

(See id. at 119-23, Pg. ID 3546-50.) While Scott had previously objected to Soles’ 

suggestion that the defense suggest that McCloud may have played a role in the 

crime, Scott did not object during that call. (See id. at 120-21, Pg. ID 3547-48.) 

Instead, he asked Soles why Soles was going to suggest a link between McCloud 

and the Scott’s phone, and Soles explained his reasoning. (See id.) Based upon this 

interaction with Scott the night before the closing, Soles concluded that any 

statements “pointing the finger at Ms. McCloud during [his] closing [would not be] 

in contravention of direction or requests made to [him] by Mr. Scott.” (Id.)

6

                                                            

6

 The above account of the conversation between Soles and Scott from the evening 

before closing arguments comes from Soles’ testimony. Scott disputes Soles’ 

account of their conversation and says that he consistently opposed any suggestion 

by Soles that McCloud’s credibility should be impugned. The Court credits and 

believes Soles’ account of their conversation as described in text above. In addition, 

the Court rejects Scott’s suggestion that testimony by McCallister undermines Soles’ 

account of the conversation. (See ECF #355 at Pg. ID 4219.) During the testimony 

in question, Scott asked McCallister to confirm he (Scott) had taken the position that 

McCloud should not be impugned if she testified, and McCallister did so. (See 

March 12, 2018 Evid. Hearing Tr. at 88, ECF #344 at Pg. ID 4096.) But that 

testimony by McCallister simply verified the undisputed point that at certain points 

during Soles’ representation of Scott, Scott had opposed the suggestion that 

McCloud be impugned. McCallister’s testimony says nothing about whether, during 

the call between Soles and Scott the night before the closing, Scott objected when 

Soles said that he intended to suggest that McCloud may have had Scott’s phone at 

the time of the carjacking. Indeed, there is no evidence that McCallister participated 

in, or was aware of, that final phone call. McCallister’s testimony thus does not 

undermine Soles’ claim that Scott did not object during that call. 
32 

During Soles’ closing, he did exactly as he told Scott he would. He told the 

jury that one of three people could have had Scott’s phone at the time of the 

carjacking: Hubbard, Evans, or McCloud. (See Jury Trial Tr. at 99-100, ECF #124 

at Pg. ID 1875-76.) On rebuttal, the government told the jury that Soles had “just 

discredited” McCloud. (See id. at 102-03, Pg. ID 1878-79.) 

b 

Scott argues that Soles’ decision to list McCloud as a possible possessor of 

the phone at the time of the carjacking was unreasonable and caused substantial 

prejudice. The Court disagrees on both points. 

First, Soles’ decision to suggest a possible link between McCloud and Scott’s 

phone was a reasonable strategic choice. Soles reasonably determined that (1) it was 

essential for him to identify for the jury as many potential possessors of Scott’s 

phone as possible in order to negate the force of the government’s evidence that that 

phone was communicating with Hubbard’s phone around the time of the carjacking; 

(2) it was plausible to suggest a link between McCloud, Scott’s phone, and the 

carjacking given McCloud’s incriminating statements on the recorded jail calls and 

her prior connections to Evans; and (3) because McCloud’s testimony went so 

poorly, there was little, if anything, to lose by pointing the finger at McCloud. Soles’ 

reasonable strategic choice to implicate McCloud did not fall below an objective 

standard of reasonableness. 
33 

Second, contrary to Scott’s contention, Soles did not “destroy[]” Scott’s alibi 

defense (or otherwise cause Scott cognizable prejudice) by implicating McCloud. 

(See Mot. for New Trial, ECF #144 at Pg. ID 2482.) As noted above, because 

McCloud’s testimony went so poorly, she added very little to Scott’s defense. 

Moreover, because McCloud went to bed well before the carjacking, she could not 

account for Scott’s whereabouts at that critical time. And to the extent McCloud did 

place Scott at family movie night until she went to sleep, her alibi testimony was 

cumulative of that offered by Monico Hayes and Desmond Brooks. For these 

reasons, the Court rejects Scott’s argument that Soles’ decision to link McCloud to 

his phone caused him prejudice under the Strickland standard. 

2 

Scott next insists that Soles failed to investigate whether, and to establish that, 

Evans had a motive to testify falsely against Scott. (See id. at Pg. ID 2484.) More 

specifically, Scott contends that Soles failed to discover and present evidence from 

Paijah McCloud and Monico Hayes that Evans had threatened Scott (in text 

messages and phone calls) and harbored great anger toward Scott. (See id.) McCloud 

and Hayes described this evidence in affidavits that Scott submitted with his motion 

for new trial. (See Affidavit of Monico Hayes, ECF #144-1; Affidavit of Paijah 

McCloud, ECF #144-2.) The Court rejects this claim of ineffective assistance. 
34 

Soles and his team did not fail to investigate whether Evans had a motive to 

lie about Scott. As McCallister made clear, he attempted to follow-up on 

information provided by Scott that Evans had threatened Scott. (See March 12, 2018 

Evid. Hearing Tr. at 67-69, ECF #344 at Pg. ID 4075-77.) Moreover, Soles was 

aware of much of the evidence described in the Hayes and McCloud affidavits. For 

instance, Soles was aware of threatening text messages that, according to Hayes and 

McCloud, were sent by Evans during the relevant time frame. But Soles determined 

that there were “evidentiary problems with getting them in.” (See Nov. 7, 2017 Evid. 

Hearing Tr. at 169, ECF #261 at Pg. ID 3596.) The evidentiary problems included 

Scott’s inability to lay an appropriate foundation for the admission of the text 

messages. The text messages that Scott provided to Soles had no dates on them and 

did not reveal the identity of their authors. (See id. 194-200, Pg. ID 3621-27.) Soles 

was also aware of photos showing damage to Scott’s house that, according to 

McCloud and Hayes, was inflicted by Evans, but since no witness saw Evans 

damage the home, Soles saw no way to admit the photographs as evidence that Evans 

had an intent to harm Scott. (See id. at 200-01, Pg. ID 3627-28.) 

Moreover, Soles made a reasonable strategic decision that the type of evidence 

identified in the McCloud and Hayes Affidavits would not be helpful to the defense. 

McCloud and Hayes claim that Evans threatened Scott because Evans was 

“extremely jealous of [Scott’s relationship] with Roland Hubbard.” (Hayes Aff. at 
35 

¶1, ECF #144-1 at Pg. ID 2492; McCloud Aff. at ¶1, ECF #144-2 at Pg. ID 2495.) 

Soles reasonably concluded that eliciting the fact that Evans threatened Scott out of 

jealousy “would have fit into the government’s case.” (Nov. 7, 2017 Evid. Hearing 

Tr. at 169-70, ECF #261 at Pg. ID 3596-97.) Part of that case, again, was the 

government’s contention that Scott had inappropriately close relationships with 

vulnerable teenagers like Evans and Hubbard. Soles reasonably determined that he 

“didn’t want to paint [a] picture” of “a young juvenile who was upset that he did not 

receive the same attention from [Scott] that Hubbard did.” (Id.) Stated another way, 

Soles justifiably concluded that he did not want to paint Evans as “a guy that was 

crying for attention from [Scott].” (Id. at 170-71, Pg. ID 3597-98.) 

For all of these reasons, the Court concludes that Scott has not shown that 

Soles was ineffective for failing to discover and/or present the evidence concerning 

Evans that is identified in the Hayes and McCloud Affidavits.7

 

 

                                                            

7

 The Court rejects this particular claim of ineffective assistance for another, 

independent reason. It rests upon the affidavits of Hayes and McCloud, but Scott 

declined to call them as witnesses at the evidentiary hearing even though the Court 

expressly authorized him to do so. (See Nov. 7, 2017 Evid. Hearing Tr. at 24, ECF 

#261 at Pg. ID 3451; Order, ECF #196 at Pg. ID 3088.) The Court has serious 

concerns about the veracity of the testimony offered by Hayes and McCloud at trial 

and is unwilling to rely upon statements by them in their Affidavits that have not 

been subject to cross-examination. 
36 

3 

Scott further argues that Soles was ineffective for failing “to investigate and 

discredit the government’s contention that car parts from a 2006 Grand Marquis [like 

the one carjacked] can be utilized to replace the same parts on a 1996 Grand Marquis 

[like the one owned by Scott].” (See Mot. for New Trial, ECF #144 at Pg. ID 2469.) 

The government made that assertion to support its theory that Scott had a motive to 

carjack the 2006 Grand Marquis. Scott says that the defense missed a critical 

opportunity to destroy the government’s theory of motive by showing that parts from 

the two vehicles are not interchangeable and, thus, that Scott would not have had a 

motive to carjack the 2006 Grand Marquis. Scott is not entitled to relief on this 

claim. 

The defense team did investigate whether parts from a 2006 Grand Marquis 

could be used with the 1996 Grand Marquis model. As soon as Scott raised this 

issue with McCallister, McCallister personally went to Fred and Sons Auto Repair 

Shop and asked about whether the parts from the two models were interchangeable. 

(See Mar. 12, 2018 Evid. Hearing Tr. at 41-42, 99, ECF #344 at Pg. ID 4049-50, 

4107.) The mechanics at Fred and Sons said that they believed that some of the parts 

on the 2006 Grand Marquis may have been interchangeable with the 1996 model, 

but they directed McCallister to Holbrook Auto Parts for a more authoritative 
37 

answer.8

 (See id.) McCallister visited Holbrook Auto Parts the day after he met with 

Fred and Sons, and the staff at Holbrook confirmed that at least some of the parts 

from the 2006 Grand Marquis could be used on the 1996 model. (See id. at 41, Pg. 

ID 4049.) McCallister’s visits to two auto repair facilities constituted an objectively 

reasonable investigation into Scott’s suggestion that parts from the 2006 Grand 

Marquis could not be used on the 1996 Grand Marquis. Indeed, Scott had suggested 

that McCallister consult with the mechanics at Holbrook Auto Parts (see Nov. 7, 

2017 Evid. Hearing Tr. at 68, ECF #261 at Pg. ID 3495), and thus Scott can hardly 

claim that McCallister was ineffective for conducting the precise investigation that 

Scott suggested. In short, Scott has failed to show that the defense team’s handling 

of the parts issue did not fall below an objective standard of reasonableness.9

Moreover, Scott has failed to show that he suffered prejudice from the defense 

team’s handling of the parts interchangeability issue. More specifically, he has not 

demonstrated a reasonable probability that if the defense team had presented 

evidence that parts from two vehicles were not interchangeable, that evidence would 

                                                            

8

 Holbrook Auto Parts is a well-known, large-scale, and respected repair and parts 

facility in the City of Detroit. See http://holbrookautoparts.com/. 

9

 At the evidentiary hearing before the Court, Soles testified that he did not have a 

specific memory of exactly what investigation McCallister did concerning the parts 

interchangeability issue or of precisely what McCallister reported with respect to 

that issue. (See Nov. 7, 2017 Evid. Hearing Tr. at 179, ECF #261 at Pg. ID 3606.) 

But Soles’ current lack of recall does not change the fact that the defense team did 

investigate the parts interchangeability issue. 
38 

have meaningfully undermined the government’s motive theory. Scott may be 

correct that evidence that the parts were not interchangeable could potentially have 

chipped away to some extent at the government’s motive theory. But evidence of 

non-interchangeability would have had real force only if it had been accompanied 

by additional evidence that Scott, himself, knew or believed that the parts were not 

interchangeable. Indeed, if Scott did not know or believe that the parts were not 

interchangeable, then the actual lack of interchangeability would not have negated 

his motive to carjack the newer Grand Marquis. And Scott has not presented 

evidence that at the time of the carjacking he believed that the parts were not 

interchangeable. If anything, his testimony suggests that at the time of the carjacking 

he did not know whether the parts were interchangeable.10 For these reasons, Scott 

has not shown a reasonable probability that evidence that parts from the two Grand 

Marquis vehicles were not interchangeable would have changed the result of the 

proceeding.11

                                                            

10 Scott testified that while he and the defense team were preparing his defense – 

long after the carjacking – he “asked” a mechanic whether parts from the two 

vehicles were interchangeable, and the mechanic “explained” to him that the parts 

were not interchangeable. (Nov. 7, 2017 Evid. Hearing Tr. at 68, ECF #261 at Pg. 

ID 3495.) 

11 In addition, it seems highly unlikely that the defense team could have presented 

evidence that no parts from the two vehicles could be interchanged. At the 

evidentiary hearing before the Court, a representative from a Ford-affiliated 

dealership testified that he conducted research into a Ford parts computer database, 

and he said that that research revealed that at least some parts – including one 

“major” part – from a 2006 Grand Marquis could be used on a 1996 Grand Marquis. 
39 

4 

Finally, Scott argues that Soles was ineffective for failing to establish that 

Tynisha Jones “had damaged a 2005 Grand Marquis in a collision and needed to 

replace damaged body parts.” (Mot. for New Trial, ECF #144 at Pg. ID 2469.) Scott 

suggests that this evidence would have established that Jones had a motive to carjack 

the 2006 Grand Marquis (or to have Evans do so at her behest). The Court rejects 

this claim of ineffective assistance. 

Soles was not ineffective in failing to present the evidence of Jones’ Grand 

Marquis because Scott never told the defense team about it prior to trial. Scott 

testified that he told Soles about this evidence by telephone shortly before trial (see 

Nov. 7, 2017 Evid. Hearing Tr. at 44-45, ECF #261 at Pg. ID 3471-72), but Soles 

and McCallister both denied that Scott mentioned this evidence. (See id. at 58-59, 

Pg. ID 3584-85; Mar. 12, 2018 Evid. Hearing Tr. at 42, ECF #344 at Pg. ID 4050.) 

The Court believes Soles and McCallister. The Court further concludes that Soles 

was not ineffective for failing to present evidence related to the Jones vehicle that 

Scott did not tell him or McCallister about.12

                                                            

(Mar. 12, 2018 Evid. Hearing Tr. at 118-20, ECF #344 at Pg. ID 4126-28.) That 

testimony, which the Court finds credible, casts serious doubt on Scott’s assertion – 

based upon his alleged conversation with a mechanic – that none of the parts are 

interchangeable. 

12 Scott argues that he has submitted a document that reflects that he gave Soles 

written notice of the Jones’ vehicle issue prior to trial. (See Mar. 12, 2018 Evid. 

Hearing Tr. at 79-84, ECF #344 at Pg. ID 4087-92.) The Court rejects Scott’s 
40 

IV 

 Scott next contends that he is entitled to a new trial based upon newlydiscovered evidence. The evidence in question is sworn statements from two 

individuals – Tim Fulgenzi and Ryan Travis – who claim to have been incarcerated 

with Evans at the Dickerson detention facility after Evans testified against Scott in 

this case. (See Fulgenzi Statement, ECF #144-4 at Pg. ID 2502; Travis Statement, 

ECF #144-5 at Pg. ID 2504.) Fulgenzi and Travis maintain that Evans recanted his 

trial testimony and confided in them that he lied when he told the jury in this case 

that Scott participated in the carjacking. The Court concludes that Scott is not 

entitled to a new trial based upon the statements of Fulgenzi and Travis. 

 As an initial matter, Scott analyzes the evidence presented by Fulgenzi and 

Travis under the wrong framework. Scott evaluates their statements under the test 

                                                            

reliance on this document to establish Soles’ alleged knowledge of the issue. Scott 

testified that he told Soles about the issue orally by phone. (See Nov. 7, 2017 Evid. 

Hearing Tr. at 44-45, ECF #261 at Pg. ID 3471-72.) While under oath and subject 

to cross-examination, Scott never mentioned giving Soles written notice of the 

Jones’ vehicle issue. The Court rejects Scott’s argument that he gave Soles written 

notice of the document because the argument is not consistent with his sworn 

testimony. Moreover, while Scott was questioning Soles at the evidentiary hearing, 

Scott did not ask Soles about the document through which he (Scott) allegedly 

notified Soles about the issue. Scott thus deprived Soles (and the government) of an 

opportunity to rebut his claim that he gave Soles the document and that Soles read 

the document before trial. Finally, the references to the 2005 Grand Marquis on the 

document in question are in tiny handwriting that is challenging to read. Even if 

Scott gave this document to Soles before trial, it is far from clear that Soles would 

have recognized and sufficiently understood the references. 
41 

that the Sixth Circuit generally applies to claims of newly-discovered evidence. 

Scott accurately notes that under that test, a criminal defendant is not entitled to a 

new trial based upon newly-discovered evidence unless the defendant establishes 

that the evidence was: 

(1) discovered only after trial; 

(2) could not have been discovered earlier with due 

diligence; 

(3) is material and not merely cumulative or 

impeaching; and 

(4) would likely produce an acquittal if the case were 

retried. 

(Mot for New Trial, ECF #144 at Pg. ID 2488, quoting U.S. v. Willis, 257 F.3d 636, 

642 (6th Cir. 2001). 

But the very Sixth Circuit decision that Scott quotes makes clear that this test 

does not apply where, as here, the newly-discovered evidence is the purported 

recantation of a government witness. See Willis, 257 F.3d at 642-43. Instead, “a 

motion for a new trial based upon the recantation of a material government witness 

should be granted only if: 

(1) the court is reasonably well satisfied that the trial 

testimony given by the material witness is false; 

(2) without the false testimony, the jury might have 

reached a different conclusion; and 
42 

(3) the party seeking the new trial was taken by surprise 

when the false testimony was given, and was unable 

to meet it or did not know of its falsity until after the 

trial. 

Id. at 642-43 (quoting Gordon v. United States, 178 F.3d 896 (6th Cir. 1949)); see 

also U.S. v. Bass, 785 F.3d 1043, 1050 (6th Cir. 2015) (quoting Willis).13 

 The Court will not grant a new trial under this test because it is not “reasonably 

well satisfied” that Evans’ trial testimony was false. This Court carefully observed 

Evans while he testified on both direct and cross-examination. While the defense 

undoubtedly landed some “blows” during cross-examination – by eliciting, among 

other things, Evans’ very favorable plea deal, inconsistencies in Evans’ versions of 

events, and Evans’ prior criminal history – the core of Evans’ testimony against Scott 

came across as entirely credible. Simply put, at the conclusion of Evans’ testimony, 

the Court had no doubt but that he was telling the truth when he described Scott’s 

role in the carjacking. The Court’s assessment of Evans weighs heavily against 

granting a new trial based upon his purported recantation. See id. at 646 (explaining 

that the district judge who presided over a criminal defendant’s trial is “‘uniquely 

qualified’ to address the defendant’s motion for new trial based on [a government] 

witness’s recantation”). 

                                                            

13 There is some question as to whether a defendant needs to satisfy the third element 

of this test as an absolute prerequisite to relief. See Gordon, 257 F.3d at 648. The 

Court need not grapple with that issue because the Court concludes that Scott cannot 

satisfy the first element of this test. 
43 

 The statements by Fulgenzi and Travis that Evans recanted do not persuade 

the Court that Evans lied at trial. It is well-established in this Circuit that “affidavits 

by witnesses recanting their trial testimony are to be looked upon with extreme 

suspicion.” Id. The declarations by Fulgenzi and Travis should be viewed with even 

more suspicion because they are one step removed from a direct sworn recantation 

by Evans; they are a report of a purported unsworn recantation by Evans. And the 

accounts of Evans’ supposed recantation seem highly questionable. 

 Travis’ account of Evans’ alleged recantation does not make sense. 

According to Travis, Evans said that he (Evans) believed that his false trial testimony 

would “help” Scott. (Travis Statement, ECF #144-5 at Pg. ID 2504.) That is absurd. 

Evans testified that Scott was the ringleader of a carjacking. Evans could not 

possibly have believed that that testimony would have aided Scott. 

Moreover, Travis’ account of Evans’ alleged recantation reveals that Evans 

had a strong motive to falsely recant. According to Travis, Evans wanted to ensure 

that “no one would think that he was a RAT.” (Id.) Evans’ self-reported desire not 

to be seen as a government cooperator gave Evans an incentive to describe his trial 

testimony to Travis as both false and an attempt to aid Scott. That incentive casts 

further doubt on the credibility of Evans’ alleged recantation. 

Fulgenzi’s account of his interaction with Evans suffers from the same 

defects. Like Travis, Fulgenzi reports that Evans made the non-sensical claim that 
44 

he believed that his false testimony directly implicating Scott as the ringleader of the 

crime would “help” Scott. (Fulgenzi Statement, ECF #144-4 at Pg. ID 2502.) And 

the rest of Fulgenzi’s statement is difficult, if not impossible, to understand. (See id.) 

Simply put, the sworn statements by Fulgenzi and Travis recounting Evans’ alleged 

recantation do not cause the Court to doubt in any respect the truth of Evans’ trial 

testimony. Accordingly, Scott is not entitled to a new trial based upon their 

statements. 

V 

 In connection with his claim that his attorneys provided ineffective assistance 

of counsel, Scott executed a limited waiver of his attorney-client privilege with his 

trial defense team. (See Aug. 8, 2017 Status Conf. Tr. at 42-43, ECF #224 at Pg. ID 

3274-75; Order, ECF #196 at Pg. ID 3086-88.) The waiver covered only matters 

and issues related to the claims of ineffectiveness that Scott had raised. (See Order, 

ECF #196 at Pg. ID 3086-88.) Scott now complains that Soles and McCallister 

revealed privileged communications beyond the scope of the waiver. The Court is 

not persuaded that either Soles or McCallister revealed any material privileged 

communications beyond the scope of the limited waiver. Moreover, the government 

has not relied upon any privileged communications outside the scope of the waiver 

in opposing Scott’s motion for new trial, nor has Scott shown that the government 

has made any use whatsoever of such communications. Furthermore, the Court has 
45 

not considered, and does not rely on, any privileged communications in this order 

denying Scott’s motion for new trial. Accordingly, Scott has not shown that any 

alleged revelation of attorney-client communications entitles him to a new trial or to 

any relief in these proceedings. 

VI 

 While Scott’s motion for new trial has been pending, Scott has filed myriad 

motions, letters, affidavits, and notices with the Court – over 150 in total – seeking 

various forms of relief and lodging numerous complaints against, among others, the 

Court, the government, the court reporters, his assigned counsel, and his assigned 

standby counsel. The Court DENIES all of Scott’s miscellaneous pending requests 

for relief because Scott has not persuaded the Court that he is entitled to any of the 

relief that he seeks.14

 

                                                            

14 As noted above, the Court denies all of Scott’s pending requests for relief whether 

the requests were presented in a motion, letter, or otherwise. For docket clarity, the 

Court notes that its denial of relief includes, but is not limited to, the denial of the 

following submissions that Scott labeled as “motions”: ECF ## 177, 187, 193, 199-

200, 213, 217-18, 220-22, 230, 241-43, 246-49, 251-52, 254, 257-58, 262, 265, 267-

69, 271, 273-74, 289, 309, 314-15, 323, 330, 332-34, 336, 338, 349-350, 355, 357, 

365, 370-71, and 379. 
46 

VII 

 For the reasons stated above, Scott’s motion for a new trial (ECF ## 144, 162) 

and all of his other miscellaneous requests for relief are DENIED. 

IT IS SO ORDERED. 

/s/Matthew F. Leitman 

 MATTHEW F. LEITMAN 

 UNITED STATES DISTRICT JUDGE 

Dated: May 10, 2018 

I hereby certify that a copy of the foregoing document was served upon the parties 

and/or counsel of record on May 10, 2018, by electronic means and/or ordinary 

mail. 

 s/Holly A. Monda 

 Case Manager 

 (810) 341-9764