United States v. Gregory Sitzmann

United States Court of Appeals

FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued March 22, 2018 Decided June 29, 2018

No. 15-3074

UNITED STATES OF AMERICA,

APPELLEE

v.

GREGORY JOEL SITZMANN,

APPELLANT

Appeal from the United States District Court

for the District of Columbia

(No. 1:08-cr-00242-1)

Paul L. Knight, appointed by the court, argued the cause

and filed the briefs for appellant.

Daniel J. Lenerz, Assistant U.S. Attorney, argued the

cause for appellee. With him on the brief were Jessie K. Liu,

U.S. Attorney, and Elizabeth Trosman, John P. Mannarino,

and George P. Eliopoulos, Assistant U.S. Attorneys.

Before: GRIFFITH and KATSAS, Circuit Judges, and

EDWARDS, Senior Circuit Judge.

Opinion for the Court filed PER CURIAM.

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Concurring opinion filed by Circuit Judge KATSAS.

Opinion dissenting from the disposition in Part II.F filed

by Senior Circuit Judge EDWARDS.

PER CURIAM: On May 21, 2012, following a 23-day trial,

a jury found appellant Gregory Sitzmann guilty of one count of

conspiracy to distribute and possess with the intent to distribute

five kilograms or more of cocaine, in violation of 21 U.S.C. §

841(a)(1) and § 846 (2012). The Government presented

evidence at trial that, from approximately 1990 to 2004,

Sitzmann participated in a conspiracy to traffic large quantities

of cocaine from Mexico and Colombia to the United States,

Canada, Europe, and elsewhere.

Following his conviction, Sitzmann filed a motion for

judgment of acquittal or, in the alternative, a new trial,

challenging his conviction on the grounds that venue was

improper and that the Government had impermissibly

introduced and relied on testimony regarding the guilty plea of

one of Sitzmann’s co-conspirators. Sitzmann filed a separate

motion contending that the Government violated its obligations

under Brady v. Maryland, 373 U.S. 83 (1963), to disclose

materially exculpatory evidence to the defense, and also

presented false evidence at trial in violation of Napue v.

Illinois, 360 U.S. 264 (1959). The District Court denied these

motions.

On appeal, Sitzmann contends that the District Court erred

in rejecting his claim that the Government “manufactured

venue” in this case and erroneously concluded that venue was

proper in the District of Columbia (“District” or “D.C.”). He

also asserts that the District Court erred in denying his Brady

and Napue claims and his assertion that the Government

impermissibly introduced and relied on evidence of his co-

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conspirator’s guilty plea at trial. He further contends that the

District Court was mistaken when it rejected his pre-trial

motion urging that the court lacked jurisdiction over alleged

criminal wrongdoing involving extraterritorial drug activity.

And he argues that his trial attorney provided ineffective

assistance of counsel.

We find no merit in Sitzmann’s challenges to the

aforementioned rulings of the District Court. We therefore

affirm his conviction.

I. BACKGROUND

On August 7, 2008, a federal grand jury indicted Sitzmann

on the drug conspiracy charges at issue in this case. Sitzmann

was the only defendant charged in the indictment under which

he stood trial. At trial, however, the Government alleged that,

from approximately 1990 to 2004, Sitzmann participated in the

charged conspiracy with several other individuals, including

John Sager, Jerry Harvey, Gary Paulson, and George Jones.

The evidence against Sitzmann consisted of recorded

conversations and testimony from Sitzmann’s alleged co-

conspirators and others, Sitzmann’s own statements, physical

and documentary evidence, and expert testimony. The

evidence showed that the conspiracy began in the early 1990s

when Sitzmann was incarcerated in a Florida prison for

unrelated cocaine charges and became acquainted with fellow

inmates Sager, Harvey, and Paulson. While incarcerated,

Sitzmann, Sager, and Harvey had conversations about using

airplanes to smuggle drugs. Sitzmann and Paulson also

discussed smuggling cocaine into Canada following their

release from prison; Sitzmann told Paulson he had a cocaine

supplier in Mexico, and Paulson agreed to connect Sitzmann to

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individuals in Canada to whom Sitzmann could supply cocaine

in the future.

Following Sitzmann’s release from prison in the mid-

1990s, he engaged in several overt acts in furtherance of the

drug conspiracy. For example, he discussed with his co-

conspirators plans to launder money and fly planes to traffic

cocaine from South America to Europe. Sitzmann, Jones, and

other co-conspirators transported cocaine from Mexico to

Canada using SUVs with modified gas tanks. And in February

2004, Sitzmann was arrested in France after French authorities

found seven kilograms of cocaine hidden in his rental car.

Sitzmann remained incarcerated for that offense in France for

several years. During a voluntary conversation with federal

authorities in 2008, Sitzmann admitted that, between

December 2003 and February 2004, he passed through the

United States on at least one occasion when he was smuggling

14 to 16 kilograms of cocaine from Colombia to Europe.

Sitzmann and his co-conspirators engaged in other drug

activities in the United States during the course of the ongoing

conspiracy. For example, Sitzmann admitted to authorities that,

in the mid-1990s, he and Jones went to Chicago to acquire

several kilograms of cocaine. In the early 2000s, Sitzmann and

another individual named Terrence Colligan “shined up” 16

kilograms of cocaine in Jones’ home in Florida. Trial Tr.

(4/30/12) at 59–62. And in 2002, Colligan “cut” two kilograms

of cocaine for Sitzmann in the same home while Jones and

Sitzmann were both present. Gov’t Ex. 1025, reprinted in

Supplemental Appendix (“S.A.”) 719. Unbeknownst to

Sitzmann and Jones, Colligan had been working as a

Government informant since 2000.

Former D.C. police officer William Buss participated in the

Government’s investigation of Sitzmann. At Sitzmann’s trial,

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Buss testified that during the course of his investigation he

learned that Jones attempted to acquire 20 kilograms of cocaine

from Sitzmann between approximately September or October

2003 and January 2004. When Sitzmann failed to supply the

cocaine, Jones turned to Colligan to see if he could provide it.

After Colligan reported Jones’ request to law enforcement

officers, the officers organized a controlled delivery of cocaine

to Jones in order to facilitate the arrest of Jones. As part of this

plan, Colligan offered to supply Jones with 20 kilograms of

cocaine.

On March 11, 2004, Jones and Colligan met in Florida to

discuss the deal. Jones assured Colligan that he had buyers for

the cocaine, but the deal fell through when it became clear that

Jones did not have the money to purchase the drugs. Colligan

then returned to D.C. When Jones called Colligan several days

later, Colligan – at the Government’s urging – offered to return

to Florida to supply 16 kilograms of cocaine, but told Jones he

needed $1,000 to cover the costs of transporting the cocaine

from Washington, D.C. to Florida (where Jones was at the

time). The next day, Jones caused $1,000 to be wired from

Florida to D.C.

Agents arrested Jones in Florida on March 26, 2004, right

after Colligan delivered him the 16 kilograms of cocaine.

During a search of Jones’ home, agents found several items

belonging to Sitzmann, including bags with secret

compartments, documents, and supplies for storing drugs.

Jones was charged with conspiracy to possess and distribute

cocaine as well as conspiracy to commit money laundering. He

pled guilty and agreed to cooperate with the Government in the

case against Sitzmann. Jones provided grand jury testimony,

but passed away before Sitzmann’s trial. However, during

Sitzmann’s trial, Buss testified that Jones had pled guilty to

cocaine conspiracy charges and cooperated with the

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Government before his death. Defense counsel neither objected

to this testimony nor requested a jury instruction precluding the

jury from using Jones’ guilty plea as substantive evidence

against Sitzmann.

The wire transfer from Jones (in Florida) to Colligan (in

D.C.) became a point of contention between the parties before

and during trial. The District Court concluded that the wire

transfer established venue in D.C. for Sitzmann’s conspiracy

charge. Prior to trial, Sitzmann filed a motion to dismiss the

case, alleging that the Government had impermissibly

“manufactured venue” by orchestrating the wire transfer solely

for the purpose of creating venue in D.C. See United States v.

Sitzmann (Sitzmann IV), 74 F. Supp. 3d 96, 113–14 (D.D.C.

2014). Sitzmann also filed a motion to transfer venue to

Florida. Id. The District Court denied both motions. The

District Court judge doubted whether “venue manipulation” or

“venue entrapment” were viable theories in this circuit and

explained that, even if such concepts existed, the overt acts in

this conspiracy were “committed in many, many different

places” so there was “nothing unfair” about having the criminal

prosecution of Sitzmann in the District of Columbia. Tr. of

Motions Hearing (9/8/11) at 41.

The topic of venue arose again at trial. Buss testified that

the purpose of having Colligan ask Jones to wire funds to D.C.

was to “see some good faith from Jones” and to “g[i]ve us

venue to make the arrest [of Jones] in Washington, D.C.” Trial

Tr. (4/30/12) at 80, 87. Following Buss’ testimony – and at the

urging of the prosecution, with the consent of Sitzmann’s

counsel – the trial judge gave a mid-trial jury instruction stating

that “[v]enue is a legal question about where a case may be

filed and tried. I have already decided that venue is proper in

this Court. It is not a question for the jury to decide.” Id. at 123.

After both sides had rested, however, defense counsel argued

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for the first time that the question of venue should be submitted

to the jury. Defense counsel requested that the jury be

instructed that: “If you find that there was a conspiracy, but it

was not in or did not involve the District of Columbia, then you

must acquit the defendant, notwithstanding any other issues in

the case.” Notice of Filing (Tab J), reprinted in S.A. 174. The

District Court denied the requested instruction. See Sitzmann

IV, 74 F. Supp. 3d at 115.

The jury returned a guilty verdict on May 21, 2012.

Sitzmann then filed a motion for judgment of acquittal or, in

the alternative, a new trial, alleging, inter alia, that the District

Court erred as a matter of law in rejecting his “manufactured

venue” claim and finding venue proper in the District of

Columbia. Sitzmann also contended that the Government had

improperly used Jones’ guilty plea as substantive evidence

against him at trial. In a separate post-trial motion, Sitzmann

argued that the prosecution violated its obligations under

Brady, 373 U.S. 83, and Giglio v. United States, 405 U.S. 150

(1972), by failing to produce Jones’ and Colligan’s grand jury

testimony, and also that the prosecution presented false

evidence at trial in violation of Napue, 360 U.S. 264. The

District Court denied both motions. See Sitzmann IV, 74 F.

Supp. 3d at 102–07, 111–17, 127–28; United States v. Sitzmann

(Sitzmann V), 74 F. Supp. 3d 128, 133–38, 139 & n.7, 140

(D.D.C. 2014).

The District Court thereafter sentenced Sitzmann to 348

months of imprisonment followed by 120 months of supervised

release and imposed a $500,000 fine. Sitzmann’s timely appeal

followed.

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II. ANALYSIS

A. Standard of Review

We review the District Court’s legal determinations de

novo. United States v. Dunn, 631 F.3d 1291, 1292 (D.C. Cir.

2011). In addition, we review the District Court’s denial of a

motion for judgment of acquittal de novo. United States v.

Kayode, 254 F.3d 204, 212 (D.C. Cir. 2001). In assessing

whether the District Court erred in denying a motion for

judgment of acquittal, we, like the District Court, 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). By contrast,

“[w]e review a [D]istrict [C]ourt’s ruling on a motion for a new

trial for abuse of discretion.” United States v. Johnson, 519

F.3d 478, 487 (D.C. Cir. 2008). Finally, we review de novo

claims that the government violated its obligations under Brady

to disclose evidence favorable to the accused, see id. at 488, as

well as claims under Napue that the government presented false

evidence at trial, see United States v. Mejia, 597 F.3d 1329,

1338 (D.C. Cir. 2010).

B. Extraterritorial Application of Criminal Statutes

Sitzmann first contends that the District Court “lacked

jurisdiction” over evidence introduced at trial that he smuggled

drugs into Europe between 2001 and 2004, including his 2004

arrest in France for illegal importation of narcotics. Appellant’s

Br. 29. He thus argues that the trial judge erred in permitting

the Government to present evidence of his extraterritorial drug

activities at trial. Sitzmann claims this was an error because the

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sole object of those foreign drug activities was to possess and

distribute controlled substances outside of the United States.

He further argues that there is no indication that 21 U.S.C. §

841(a)(1) and § 846, the statutes under which he was convicted,

apply to conduct that occurred on foreign soil.

“It is a longstanding principle of American law ‘that

legislation of Congress, unless a contrary intent appears, is

meant to apply only within the territorial jurisdiction of the

United States.’” EEOC v. Arabian Am. Oil Co., 499 U.S. 244,

248 (1991) (quoting Foley Bros., Inc. v. Filardo, 336 U.S. 281,

285 (1949)). In Morrison v. National Australia Bank Ltd., the

Supreme Court established a two-step framework for

determining issues involving the extraterritorial application of

statutes. 561 U.S. 247, 255, 261–73 (2010). The Court recently

described the two-step inquiry as follows:

At the first step, we ask whether the presumption

against extraterritoriality has been rebutted—that is,

whether the statute gives a clear, affirmative

indication that it applies extraterritorially. . . . If the

statute is not extraterritorial, then at the second step

we determine whether the case involves a domestic

application of the statute, and we do this by looking

to the statute’s ‘focus.’ If the conduct relevant to the

statute’s focus occurred in the United States, then the

case involves a permissible domestic application

even if other conduct occurred abroad; but if the

conduct relevant to the focus occurred in a foreign

country, then the case involves an impermissible

extraterritorial application regardless of any other

conduct that occurred in U.S. territory.

RJR Nabisco, Inc. v. European Cmty., 136 S. Ct. 2090, 2101

(2016).

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Against this backdrop, we first consider whether 21 U.S.C.

§ 841(a)(1) and § 846 may apply to conduct that occurred

outside of the United States. Read together, § 841(a)(1) and §

846 make it unlawful for “any person” to conspire to distribute

or possess with the intent to distribute a controlled substance,

such as cocaine. Neither § 841(a)(1) nor § 846 provides a “clear

indication” of applying extraterritorially. Morrison, 561 U.S. at

265. The presumption against extraterritoriality therefore

applies.

Our analysis, however, does not end there. At the second

step, we find that “the conduct relevant to the statute[s’] focus

occurred in the United States.” RJR Nabisco, 136 S. Ct. at

2101. The evidence showed that Sitzmann entered the

conspiratorial agreement in the United States, smuggled

cocaine into and out of the United States, and engaged in other

activity in the United States in furtherance of the conspiracy.

Therefore, this “case involves a permissible domestic

application” of § 841(a)(1) and § 846 “even if other conduct

occurred abroad.” Id. Accordingly, we reject Sitzmann’s claim.

C. Claims Regarding Venue

Sitzmann next contends that the District Court erred in

dismissing his “manufactured venue” claim, instructing the

jury mid-trial that venue in the District of Columbia was proper

as a matter of law, and rejecting his later request that the jury

be instructed to determine whether any part of the charged

conspiracy occurred in D.C. We find no merit in these claims.

1. “Manufactured Venue”

We begin with Sitzmann’s contention, which he raised in

his motion for judgment of acquittal, that the Government

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improperly “manufactured venue” in this case by luring Jones

into wiring funds from Florida to D.C. to establish venue.

Sitzmann also claims that the Government violated his due

process rights by orchestrating this wire transfer.

Several circuits “have rejected the concept of

manufactured venue or ‘venue entrapment.’” United States v.

Valenzuela, 849 F.3d 477, 488 (1st Cir. 2017); see also, e.g.,

United States v. Rodriguez-Rodriguez, 453 F.3d 458, 462 (7th

Cir. 2006) (“The entrapment doctrine protects the defendant

against manufactured offenses (unless the defendant is

predisposed); it does not limit venue.”); United States v. Al-

Talib, 55 F.3d 923, 929 (4th Cir. 1995) (“There is no such thing

as ‘manufactured venue’ or ‘venue entrapment.’”). Other

circuits, including our own, have reserved ruling on the

question of whether “manufactured venue” is a viable theory,

but have suggested that such a theory may only apply in “cases

involving ‘extreme’ law enforcement tactics.” United States v.

Chi Tong Kuok, 671 F.3d 931, 938 (9th Cir. 2012); see also

United States v. Spriggs, 102 F.3d 1245, 1250–51 (D.C. Cir.

1996) (per curiam) (as amended Feb. 20, 1997); United States

v. Myers, 692 F.2d 823, 847 n.21 (2d Cir. 1982).

In Spriggs, the appellants argued that their convictions

must be set aside because government agents “manufactured

venue” in the District of Columbia by, for example,

“‘purposefully’ arrang[ing] for defendants to pick-up cash” in

D.C. 102 F.3d at 1250. In assessing this claim, we stated that

“[i]t is unclear exactly what a claim of ‘manufactured venue’

entails” and doubted “whether there is such a thing as ‘venue

entrapment.’” Id. We stated further that “[i]t is a little hard to

conceive of a person predisposed to commit a federal crime –

but not in some specific district.” Id. But we declined to resolve

the question of whether the concept of “manufactured venue”

exists, finding that there was “no suggestion [in the record] that

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appellants had even the slightest tendency to balk at the

[District of Columbia’s] edge, much less the necessary lack of

predisposition” to commit a federal crime in Washington, D.C.

Id. at 1250–51. The decision “assume[d] without deciding that

there would be a fatal impropriety where ‘the key events occur

in one district, but the prosecution, preferring trial elsewhere,

lures a defendant to a distant district for some minor event

simply to establish venue.’” Id. at 1251 (citation omitted). On

the record before it, however, the court in Spriggs found

nothing “reprehensible” about an agent’s decision to pose as a

drug dealer from Washington, D.C. Id.

Sitzmann asks this court to decide the issue left unresolved

in Spriggs: whether the Government can “manufacture venue”

through entrapment. Appellant’s Br. 34. We decline to do so.

We remain unconvinced that “manufactured venue” or “venue

entrapment” are viable theories. We need not reach the issue,

however, because Sitzmann has failed to point to any

circumstances in this case that might be viewed as “venue

entrapment,” as conceptualized by the court in Spriggs.

Viewing the evidence in the light most favorable to the

prosecution, Jackson, 443 U.S. at 319, there is “no suggestion

[in the record] that [Jones] had even the slightest tendency to

balk at the District’s edge.” Spriggs, 102 F.3d at 1250–51.

When Colligan told Jones that Colligan needed to go to D.C. to

obtain cocaine for Jones, Jones replied, “the sooner the better.”

Tr. of Recordings (3/6/04). And when Colligan asked Jones to

wire $1,000 to D.C. to cover the costs of transporting the

cocaine from Washington, D.C. to Florida, Jones caused the

funds to be wired the next day.

We also reject Sitzmann’s contention that the

Government’s role in facilitating the wire transfer was the kind

of “reprehensible” conduct Spriggs suggested might violate

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due process. See Spriggs, 102 F.3d at 1251. We agree with the

District Court that there is nothing inherently reprehensible

about a law enforcement officer’s decision to have a

government cooperator, Colligan, ask a target, Jones, to wire

funds to Washington, D.C. in connection with a cocaine

transaction in which the target was a willing participant. The

overt acts in the charged conspiracy occurred in many places,

so there was nothing unfair about having the case tried in the

District of Columbia.

2. Jury Instruction

We next consider Sitzmann’s contention that the District

Court erred in instructing the jury that venue is a legal question

for the court to resolve and that, as a legal matter, venue was

proper in Washington, D.C. In Sitzmann’s view, venue was a

question of fact for the jury to resolve. We disagree.

Venue is a jury question if “(1) the defendant objects to

venue prior to or at the close of the prosecution’s case-in-chief,

(2) there is a genuine issue of material fact with regard to

proper venue, and (3) the defendant timely requests a jury

instruction.” United States v. Haire, 371 F.3d 833, 840 (D.C.

Cir. 2004) (quoting United States v. Perez, 280 F.3d 318, 327

(3d Cir. 2002)), vacated on other grounds, 543 U.S. 1109

(2005); see also United States v. Nwoye, 663 F.3d 460, 466

(D.C. Cir. 2011). In denying Sitzmann’s motion for a new trial,

the District Court concluded that venue was not a factual

question for the jury under the test set forth in Haire. See

Sitzmann IV, 74 F. Supp. 3d at 111–17. Although we ordinarily

review a District Court’s denial of a motion for new trial for

abuse of discretion, Johnson, 519 F.3d at 487, “[a]n alleged

failure to submit a proper jury instruction is a question of law”

that we review de novo, Joy v. Bell Helicopter Textron, Inc.,

999 F.2d 549, 556 (D.C. Cir. 1993).

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The parties do not dispute that Sitzmann satisfied the third

requirement of the Haire test by timely requesting a jury

instruction. See Sitzmann IV, 74 F. Supp. 3d at 111 & n.6. The

principal disagreement between the parties is whether the first

and second requirements of the Haire test were met. Sitzmann

argues that his trial counsel satisfied the first requirement by

asking during the cross-examination of then-retired officer

Buss questions that “focus[ed] on venue-related issues which

had been previously developed during a pretrial motions

hearing” and also by presenting a defense at trial that Sitzmann

“had nothing to do with the purported drug deal between Jones

and Colligan and that there was no venue for that reason.”

Appellant’s Br. 38, 41. Sitzmann maintains that he satisfied the

second requirement by raising at trial the question of whether

the Jones-to-Colligan, Florida-to-D.C. wire transfer was an act

in furtherance of the charged conspiracy. Id. at 41. We find

these arguments unavailing.

“A defendant may object to venue by raising its absence in

a pre-trial motion, challenging during the Government’s case

its evidence as to venue, or making a motion for acquittal at the

close of the Government’s case that specifically deals with”

whether venue in the District Court was proper. Perez, 280

F.3d at 334–35. In his briefing to this court, Sitzmann does not

contend that his pre-trial motions raised the question of

whether venue was proper in the District of Columbia. In

addition, far from challenging the Government’s evidence

regarding venue at trial, Sitzmann’s counsel consented to the

Government’s request that the trial judge instruct the jury that

venue was a legal matter and that the court had determined that

venue was appropriate in the District of Columbia. See

Sitzmann IV, 74 F. Supp. 3d at 115. After the judge delivered

the instruction, “[t]he topic of venue was not raised again

during” the Government’s case-in-chief. Id.

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It was only on the day of closing arguments, after both

sides had rested, that Sitzmann raised for the first time the

argument that the jury had to decide whether venue was proper

in the District of Columbia because there was a question of fact

as to whether Sitzmann was still part of the conspiracy when

Jones wired the funds to D.C. See id. at 115 & n.9. The District

Court denied this request pursuant to the Haire test. Id. at 115.

On the record before us, we find no basis to overturn the

District Court’s determination that Sitzmann failed to “object

to venue during trial, either explicitly or by ‘challenging during

the Government’s case its evidence as to venue.’” Id. at 117

(quoting Perez, 280 F.3d at 334). We agree with the District

Court that Sitzmann’s counsel did not place the propriety of

venue in issue during his cross-examination of Buss or at any

other time during trial. Sitzmann’s contention, on the day of

closing arguments, that venue was a jury question because

there was a factual question as to whether he played a role in

the Jones-Colligan transaction, came too late. See Perez, 280

F.3d at 335 (“Objecting to venue at the jury instruction phase,

without more, is not sufficient, for it does not flag and establish

an issue of fact that warrants a special jury instruction.”).

Because Sitzmann did not “object[] to venue prior to or at the

close of the prosecution’s case-in-chief,” Haire, 371 F.3d at

840, Sitzmann failed to satisfy the first requirement of the

Haire test. We therefore conclude that the District Court did

not err in determining that venue was not a question for the jury

to decide.

3. Challenge to Propriety of Venue

We need not linger on Sitzmann’s final contention that

venue was not proper in D.C. See Appellant’s Br. 32–34

(arguing that Sitzmann was not a part of the conspiracy when

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the funds were wired to D.C.). As explained above, Sitzmann

forfeited this argument by failing to put it in issue at trial before

the close of evidence and by expressly consenting to a mid-trial

jury instruction informing the jury that venue was proper as a

matter of law. See Nwoye, 663 F.3d at 465–66. Our review of

this unpreserved claim is therefore for plain error. United States

v. Pole, 741 F.3d 120, 124 (D.C. Cir. 2013).

On appeal, Sitzmann does not point to any evidence that

“demonstrates an affirmative effort to withdraw from the

conspiracy.” United States v. Thomas, 114 F.3d 228, 267 (D.C.

Cir. 1997); see also United States v. Bostick, 791 F.3d 127, 143

(D.C. Cir. 2015) (“To withdraw from a conspiracy, an

individual must come clean to the authorities or communicate

his or her abandonment ‘in a manner reasonably calculated to

reach co-conspirators.’” (citation omitted)). Moreover,

Sitzmann’s contention that his arrest in France withdrew him

from the conspiracy fails because an arrest, without more, does

not indicate withdrawal. See, e.g., United States v. Massino,

546 F.3d 123, 137 (2d Cir. 2008) (“[A] conspirator who has

been arrested remains responsible for acts committed in

furtherance of the conspiracy by co-conspirators who are still

at large.”). Therefore, the District Court did not err – let alone

plainly err – in concluding that Sitzmann was still a part of the

conspiracy with Jones at the time of the wire transfer, that the

wire transfer was an overt act in furtherance of the conspiracy,

and that the overt act established venue. See Sitzmann IV, 74 F.

Supp. 3d at 105–07; see also United States v. Watson, 717 F.3d

196, 198 (D.C. Cir. 2013) (“[V]enue is proper in any

jurisdiction where any co-conspirator committed an overt act

in furtherance of the conspiracy.”).

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D. Brady and Napue Claims

Sitzmann next contends that he was denied due process of

law because the Government failed to timely disclose

exculpatory and impeachment evidence in violation of Brady

v. Maryland, 373 U.S. 83 (1963), and Giglio v. United States,

405 U.S. 150 (1972), and because the Government knowingly

presented false evidence at trial in violation of Napue v.

Illinois, 360 U.S. 264 (1959). We find no merit in these claims.

1. Alleged Brady Violation

Sitzmann first argues that the Government’s failure to turn

over the grand jury testimony of his co-conspirator, George

Jones, violated Brady. Sitzmann raised this claim in a post-trial

motion to compel the prosecution to produce Jones’ and

Colligan’s grand jury testimony, which the District Court

denied. See Sitzmann V, 74 F. Supp. 3d at 131–33. Although

the Government subsequently produced Jones’ grand jury

testimony for sentencing purposes, Sitzmann contends that this

testimony should have been disclosed prior to trial.

“The Constitution’s ‘fair trial guarantee’ requires the

prosecution to timely turn over any information in the

government’s possession that is materially favorable to a

criminal defendant . . . .” United States v. Straker, 800 F.3d

570, 602 (D.C. Cir. 2015) (per curiam) (quoting United States

v. Ruiz, 536 U.S. 622, 628 (2002)); see also Brady, 373 U.S. at

87. In Giglio, the Supreme Court held that “evidence that could

be used to impeach government witnesses” falls within the

Brady rule. United States v. McGill, 815 F.3d 846, 922 (D.C.

Cir. 2016) (per curiam); see also Giglio, 405 U.S. at 153–54.

There are three components of a Brady claim. First, “[t]he

evidence at issue must be favorable to the accused, either

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because it is exculpatory, or because it is impeaching.”

Strickler v. Greene, 527 U.S. 263, 281–82 (1999). Second, the

“evidence must have been suppressed by the [government],

either willfully or inadvertently.” Id. at 282. And third,

“prejudice must have ensued.” Id. To satisfy the prejudice

component, the defendant must show that “there is a reasonable

probability that, had the evidence been disclosed to the defense,

the result of the proceeding would have been different.” United

States v. Bagley, 473 U.S. 667, 682 (1985).

Sitzmann’s Brady claim concerns evidence introduced at

trial that Jones attempted to acquire multi-kilograms of cocaine

from Sitzmann. At trial, then-retired officer Buss testified that

he had learned during his investigation that “Jones was

interested in buying 20 kilograms of cocaine.” Trial Tr.

(4/30/12) at 9. According to Buss, Jones initially attempted to

acquire the 20 kilograms from Sitzmann sometime between

September or October 2003 and January 2004, but when

Sitzmann failed to supply the drugs, Jones turned to Colligan

for the cocaine. Id. at 9–10. Buss testified that Jones intended

to supply this cocaine to individuals with whom Sitzmann was

“involved” – who were “[m]ore of Mr. Sitzmann’s people”

than Jones’ people – and that Jones expected to make “$1,500

for each kilogram sold[;] he was going to split it with Mr.

Sitzmann, $750 a piece.” Id. at 11.

Sitzmann contends that Jones’ grand jury testimony was

both exculpatory – in that it “supported Sitzmann’s position

that he never promised Jones that he would provide [him]

cocaine in late 2003 or 2004” – and also impeaching – in that

it would have contradicted Buss’ testimony that Sitzmann

promised to supply 20 kilograms of cocaine to Jones sometime

in late 2003 or early 2004. See Appellant’s Br. 43–45, 49.

Sitzmann maintains that “Jones never mentioned in his sworn

testimony anything with regard to Sitzmann promising to

19

supply him with 20 kilograms of cocaine prior to January,

2004, or anytime,” and that “Jones first approached Colligan

for cocaine, not Sitzmann.” Id. at 43–45.

Sitzmann’s Brady claim fails because Jones’ grand jury

testimony is neither exculpatory nor inconsistent with Buss’

recounting of the facts. As part of his grand jury testimony,

Jones adopted a statement of facts in support of his May 2004

guilty plea. See Tr. of Grand Jury Proceedings (6/29/05) at 47–

50. In that statement of facts, Jones admitted the following:

In early January, 2004, Colligan reported that a

criminal associate named Sitzman[n] promised to

supply multi-kilogram quantities of cocaine to

George Jones. Thereafter, in January 2004, Jones

telephoned Colligan to complain that Sitzman[n] had

not delivered the cocaine as promised and George

Jones asked Colligan to supply him with 20

kilo[grams] of cocaine or in the alternative, provide

him with another source of cocaine. . . . Shortly

thereafter, Jones learned of Sitzman[n]’s arrest [and]

detention in France, and confirmed to Colligan that

Sitzman[n] definitely was unable to deliver cocaine.

Agreed Statement of Facts in Support of Guilty Plea at 1–2

(May 12, 2004), reprinted in Appellant’s Appendix (“App.”)

479–80.

Sitzmann acknowledges that Jones adopted the statement

of facts during his grand jury testimony, but notes that the

statement of facts contains “no discussion as to when or where

Sitzmann allegedly made this promise and no discussion of any

amounts that were to be delivered.” Appellant’s Br. 43 n.22.

True enough, but this does not render Jones’ grand jury

testimony inconsistent with the more specific trial testimony

20

Buss provided based on the information he had learned during

his investigation. See Appellee’s Br. 40.

Sitzmann also argues that Jones’ grand jury testimony was

impeaching because it would have discredited Buss’ testimony

that Jones was going to split his profits from the sale of the

cocaine with Sitzmann “50-50.” Appellant’s Br. 53 (alleging

that Jones’ testimony would have shown that Jones “only

intended to give a small percentage of his hoped-for profit to

Sitzmann”). Sitzmann’s argument is unavailing because Buss’

testimony on this point simply repeated what Jones had said to

Colligan in a recorded statement: that Jones intended to make

“fifteen hundred” on each kilogram sold, “750 to Greg

[Sitzmann] and 750 for me.” Tr. of Recordings (3/11/04).

Because Buss’ testimony merely reiterated this other trial

evidence, there is no “‘reasonable probability’ that the result of

the trial would have been different” had Jones’ grand jury

testimony been disclosed. United States v. Borda, 848 F.3d

1044, 1066 (D.C. Cir. 2017). Sitzmann has therefore failed to

establish a Brady violation.

In short, Sitzmann has not shown that Jones’ testimony

was “favorable to the accused” within the meaning of Brady

and Giglio. Strickler, 527 U.S. at 281–82. Accordingly, the

District Court did not err in rejecting Sitzmann’s claims.

21

2. Alleged Napue Violation

Sitzmann next contends that the Government presented

false evidence at trial, in violation of Napue. Specifically, he

takes issue with Buss’ testimony that Jones intended to supply

cocaine to “[c]o-conspirators in [this case]” who had been

“involved” with Sitzmann and were “[m]ore of Mr. Sitzmann’s

people” than Jones’ people. Trial Tr. (4/30/12) at 11. Sitzmann

asserts that the prosecution knew Buss’ characterization of the

potential buyers as “Sitzmann’s people” was false because the

Government’s own investigation and Jones’ grand jury

testimony contradicted Buss’ testimony.

“A Napue violation occurs when the government

introduces false or misleading testimony or allows it to go

uncorrected, even though the government knew or should have

known that the testimony was false.” Straker, 800 F.3d at 603.

“If a defendant makes that showing, a new trial is required

[only] if there is ‘any reasonable likelihood that the false

testimony could have affected the judgment of the jury.’” Id.

(quoting United States v. Gale, 314 F.3d 1, 4 (D.C. Cir. 2003)).

Sitzmann’s argument is not without some merit. On the

one hand, some of Jones’ statements in the grand jury cast

doubt on the conclusion that the anticipated customers were

more of “Sitzmann’s people.” For example, the statement of

facts Jones adopted during his testimony states that Jones

“assure[d] Colligan that . . . Jones had a sufficient client base

to sell the cocaine.” Agreed Statement of Facts in Support of

Guilty Plea at 3 (May 12, 2004), App. 481 (emphasis added).

In addition, according to Jones’ testimony, at least two of the

people to whom Jones stated he was going to sell the cocaine

(Alex Mesa and Mike Maloney) were people with whom Jones

had been acquainted. See Tr. of Grand Jury Proceedings

(12/22/05) at 8–12. On the other hand, however, other record

22

evidence – namely, a recorded conversation between Jones and

Colligan – supports Buss’ conclusion about the potential

buyers. In the recorded conversation, Jones suggested his

potential buyers were Sitzmann’s “people”:

Jones: [] How much are you going to charge me for

this and what do you want me to hold out for you?

Colligan: Eighteen and I’d like to get five hundred a

piece.

Jones: And hold out, five hundred for you?

Colligan: Yeah.

Jones: OK, that’s what I told the guy.

Colligan: Can we do that.

Jones: I’ll make it fifteen hundred. 750 to Greg

[Sitzmann] and 750 for me.

Colligan: OK.

Jones: So this is for his people that I’m doing business

with. . . .

Tr. of Recordings (3/11/04) (emphasis added). Moreover,

Sitzmann had a history of smuggling cocaine with another one

of the potential buyers (Gary Paulson) to whom Jones stated he

would supply the cocaine. In addition, the evidence showed

that when Sitzmann was arrested he had the names and

telephone numbers of several of the potential buyers in his

possession. Because the evidence points in both directions, we

cannot say that the record conclusively shows that the

prosecution knew or should have known that Buss’ testimony

was false. See Straker, 800 F.3d at 603.

In any event, Sitzmann has failed to show that there was a

“reasonable likelihood” that the purportedly false testimony

could have affected the jury’s judgment in this case. Id.

“Officer Buss’s single reference during a five-week trial to

Jones’s potential customers being more ‘Sitzmann’s people’

23

than Jones’s was unlikely to have influenced the verdict,”

Appellee’s Br. 52, especially in light of the abundant evidence

at trial that Sitzmann participated in the charged conspiracy,

see, e.g., Sitzmann IV, 74 F. Supp. 3d at 103–06, 108–10, 117–

20, 126–27 (describing such evidence). Accordingly, we reject

Sitzmann’s Napue claim.

E. Reference to the Guilty Plea of a Non-Testifying Co-

Conspirator

Sitzmann next argues that the Government impermissibly

used the guilty plea of co-conspirator George Jones as

substantive evidence of Sitzmann’s guilt at trial. See

Appellant’s Br. 54–56. Sitzmann points to the following

exchange between the prosecutor and then-retired officer Buss:

Q: And was there a case in Washington, D.C. against

[Jones] for conspiracy?

A: Yes. I had originally obtained an arrest warrant on

a criminal complaint.

Q: And did Mr. Jones plead guilty?

A: He pled guilty.

Q: What did he plea?

A: And signed a plea agreement.

Q: Okay. And did he plead guilty to conspiracy to

distribute and possess with the intent to distribute at

least 5 kilograms of cocaine?

A: That’s correct.

Q: And did he end up cooperating with the

government?

A: He did.

Q: And what happened to Mr. Jones? Is he alive

today?

A: He passed away.

24

Trial Tr. (4/30/12) at 47–48. Sitzmann’s defense counsel

neither objected to this line of questioning nor requested (nor

received) a jury instruction stating that the guilty plea of a non-

testifying co-conspirator may not be used as proof of

Sitzmann’s guilt. Sitzmann nevertheless argues that the

reference to the guilty plea was improper and prejudicial

because it revealed to the jury that Jones “had pled guilty to

. . . the exact same charge for which Sitzmann was on trial” and

that Jones, in his role as a government cooperator, fully “agreed

with the Government’s evidence.” Appellant’s Br. 54.

Although Sitzmann later moved, unsuccessfully, for a new

trial on the ground that the reference to Jones’ guilty plea was

improper, he forfeited his claim by not objecting to the

testimony at trial. “For purposes of [reviewing] an alleged error

in admission of evidence, . . . a post-verdict motion for a new

trial is not the same as a timely objection: the delay eliminates

any chance that the judge could correct the error without a

duplicative trial, and according review as if a timely objection

had been raised virtually invites strategic behavior by defense

counsel. Thus we review only for plain error.” United States v.

Thompson, 27 F.3d 671, 673 (D.C. Cir. 1994); see also McGill,

815 F.3d at 896 n.12; FED. R. CRIM. P. 52(b) (“A plain error

that affects substantial rights may be considered even though it

was not brought to the court’s attention.”).

Under the plain error standard, “an appellant must show

that the District Court committed (1) a legal error that was (2)

‘plain’ (a term that is synonymous with ‘clear’ or ‘obvious’),

and that (3) affected the appellant’s substantial rights.” United

States v. Sullivan, 451 F.3d 884, 892 (D.C. Cir. 2006) (citing

United States v. Olano, 507 U.S. 725, 734 (1993)). Under the

third component of the plain error test, a defendant “must . . .

satisfy the judgment of the reviewing court, informed by the

entire record, that the probability of a different result is

25

‘sufficient to undermine confidence in the outcome’ of the

proceeding.” United States v. Dominguez Benitez, 542 U.S. 74,

83 (2004). “If all three conditions are met, an appellate court

may then exercise its discretion to [correct] a forfeited error,

but only if (4) the error ‘seriously affect[s] the fairness,

integrity, or public reputation of judicial proceedings.’”

Johnson v. United States, 520 U.S. 461, 467 (1997); see

generally EDWARDS & ELLIOTT, FEDERAL STANDARDS OF

REVIEW: REVIEW OF DISTRICT COURT DECISIONS AND AGENCY

ACTIONS 121–24 (3d ed. 2018).

There can be no doubt that the legal error here was “plain”

and “clear.” Sullivan, 451 F.3d at 892. It is well-settled that the

guilty plea or conviction of a member of a conspiracy may not

be introduced as substantive evidence of another defendant’s

guilt. McGill, 815 F.3d at 897. But see id. at 898 (describing

two “limited” exceptions to the rule). This rule safeguards the

criminal defendant’s right to a fair trial by preventing the jury

from “infer[ring] that the defendant on trial is more likely to be

guilty” simply because the defendant’s co-conspirator was

convicted. United States v. Johnson, 26 F.3d 669, 677 (7th Cir.

1994). It also curbs the jury’s temptation to find the defendant

guilty “based upon the disposition of the charges against the

co-defendants, rather than upon an individual assessment of the

remaining defendant’s personal culpability.” United States v.

Blevins, 960 F.2d 1252, 1260 (4th Cir. 1992). The “reasons for

preclusion [of such evidence] compound when a nontestifying

codefendant’s guilty plea is introduced because the defendant

on trial lacks the ability to cross-examine the codefendant who

entered the plea and to probe his motivations. That, in turn,

undercuts the defendant’s right to have the jury’s verdict based

only on evidence presented in open court.” McGill, 815 F.3d at

898. There can be no doubt here that the reference to Jones’

guilty plea was a serious error.

26

On appeal, the Government does not attempt to defend the

prosecutor’s conduct. And during oral argument, the

Government conceded its error. See Oral Arg. Recording at

17:22–18:20. However, the Government argues, and we agree,

that Sitzmann’s claim fails because he has not shown that the

reference to Jones’ guilty plea “affected [his] substantial

rights” by prejudicing the outcome of the trial. Sullivan, 451

F.3d at 892; Appellee’s Br. 55–58.

In determining whether a plain error is prejudicial, we

“typically look[] to the centrality of the issue affected, the

severity of the prosecutor’s misconduct, the steps taken to

mitigate the misconduct, and the closeness of the case.” United

States v. Venable, 269 F.3d 1086, 1091 (D.C. Cir. 2001). We

were very troubled by the prosecutor’s conduct in this case.

However, on the record before us, we cannot find that the

reference to Jones’ guilty plea was sufficient to demonstrate a

reasonable probability that but for the error the outcome would

have been different. See Molina-Martinez v. United States, 136

S. Ct. 1338, 1343 (2016). The Government presented ample

evidence that Sitzmann entered the conspiracy and, along with

his co-conspirators, engaged in overt acts in furtherance of the

conspiracy. Moreover, because there was “evidence already

before the jury that Mr. Jones attempted to obtain cocaine in

March 2004 with the intent to distribute it,” and because “the

[G]overnment did not mention Jones’ guilty plea again or

attempt to connect his plea . . . with Mr. Sitzmann’s guilt,”

Sitzmann IV, 74 F.Supp. 3d at 128, Sitzmann cannot show plain

error.

“[I]nformed by the entire record,” we cannot say that “the

probability of a different result is sufficient to undermine

confidence in the outcome of the proceeding.” Dominguez

Benitez, 542 U.S. at 83. Therefore, we find that the reference

27

to Jones’ guilty plea, although serious, does not constitute plain

error.

F. Ineffective Assistance of Counsel

Finally, Sitzmann contends that his trial counsel provided

ineffective assistance in six different respects. Sitzmann raised

none of these claims in the district court. Yet, on appeal, he

does not seek an evidentiary remand to further develop the

record. To the contrary, he affirmatively argues that “a remand

is not necessary,” because his particular claims “are based on

events in the trial record.” Appellant’s Reply Br. 24. We agree

with Sitzmann that a remand is unnecessary.

“When advancing an ineffective assistance argument on

direct appeal, an appellant must present ‘factual allegations

that, if true, would establish a violation of his Sixth

Amendment right to counsel.’” United States v. Mohammed,

693 F.3d 192, 202 (D.C. Cir. 2012) (quoting United States v.

Poston, 902 F.2d 90, 99 n.9 (D.C. Cir. 1990)) (brackets

omitted). To establish such a violation, the defendant must

show both that “counsel’s performance was deficient” and that

“the deficient performance prejudiced the defense.” Strickland

v. Washington, 466 U.S. 668, 687 (1984). Each of these

elements is substantial. Deficient performance requires “errors

so serious that counsel was not functioning as the ‘counsel’

guaranteed the defendant by the Sixth Amendment,” which

means that “counsel’s representation fell below an objective

standard of reasonableness.” Id. at 687–88; see also id. at 689

(“Judicial scrutiny of counsel’s performance must be highly

deferential.”). Prejudice means “that counsel’s errors were so

serious as to deprive the defendant of a fair trial, a trial whose

result is reliable.” Id. at 687.

28

“[B]ecause ineffective assistance claims typically require

factual development,” United States v. Haight, No. 16-3123,

__ F.3d __, slip op. at 10 (D.C. Cir. June 22, 2018), our

ordinary practice, when presented with a “colorable” claim, is

to “remand for an evidentiary hearing,” Mohammed, 693 F.3d

at 202. However, we do not “reflexively remand.” Id. (quoting

United States v. Harris, 491 F.3d 440, 443 (D.C. Cir. 2003)).

Two years ago, we reaffirmed what Justice Thomas had

explained more than a quarter-century earlier: this Court has

“never held that any claim of ineffective assistance of counsel,

no matter how conclusory or meritless, automatically entitles a

party to an evidentiary remand.” United States v. McGill, 815

F.3d 846, 945 (D.C. Cir. 2016) (quoting Poston, 902 F.2d at 99

n.9). To the contrary, we have rejected newly-raised

ineffective-assistance claims—without remanding—where the

record clearly shows that the challenged attorney actions were

not deficient, see, e.g., United States v. Weaver, 281 F.3d 228,

234 (D.C. Cir. 2002); Harris, 491 F.3d at 445; where the record

clearly shows that the defendant was not prejudiced, see, e.g.,

United States v. Grey, No. 14-3003, __ F.3d __, 2018 WL

2749723, at *5 (D.C. Cir. June 8, 2018); United States v. Udo,

795 F.3d 24, 30–33 (D.C. Cir. 2015); United States v. Williams,

488 F.3d 1004, 1010 (D.C. Cir. 2007); United States v. Wood,

879 F.2d 927, 933–34 (D.C. Cir. 1989); and where the

ineffective-assistance allegations are “presented in such a

vague and conclusory fashion that they do not raise any

colorable claim of error or prejudice,” McGill, 815 F.3d at 945;

see Poston, 902 F.2d at 98.

Here, we decline to remand because Sitzmann “has not

raised any substantial issue that requires a determination of

facts.” Poston, 902 F.2d at 99 n.9. Because each of his claims

turns on “events in the trial record,” Appellant’s Reply Br. 24,

there is no need for further factual development. Moreover,

each of the claims is either conclusory, insubstantial, or both.

29

First, Sitzmann alleges that his trial counsel failed to

object to unspecified hearsay testimony by Officer Buss.

Without identifying any specific statements in his opening

brief, or explaining why the statements referenced in his reply

brief are hearsay, Sitzmann has not made a colorable showing

of deficient performance. As for prejudice, Sitzmann contends

in his reply brief that Buss’ testimony was “the only evidence”

that linked Sitzmann to his co-conspirator George Jones.

Appellant’s Reply Br. 23. But, as the district court explained

at length, the Government presented “[o]verwhelming

evidence” at trial “that Mr. Jones long served as Mr.

Sitzmann’s co-conspirator.” Sitzmann IV, 74 F. Supp. 3d at

126; see id. 104–09, 126–27. That evidence included taped

conversations between Jones and a government informant

indicating that “Jones was working on an ongoing basis with

Sitzmann to smuggle drugs” when Sitzmann was arrested in

France. Id. at 105. It also included drug-smuggling

paraphernalia belonging to Sitzmann and recovered from

Jones’ home after Jones attempted to use some of it to smuggle

cocaine. See id. at 109, 126. In addition, as we have already

indicated, the Government presented evidence that Sitzmann

and Jones were both present when cocaine was “shined” and

“cut” in Jones’ house in the early 2000s. Supra, at 4. Given

the extensive evidence linking Sitzmann to Jones (and

establishing guilt on the conspiracy charge), Sitzmann has

raised no colorable claim of prejudice from Officer Buss’

testimony. See, e.g., Grey, 2018 WL 2749723, at *5; Udo, 795

F.3d at 30.

Second, Sitzmann complains that trial counsel failed to

object when a federal agent read from a French-to-English

translation that he had used to refresh his recollection of

admissions made by Sitzmann to federal agents in France in

2008. However, the agent was present at that interview, and he

30

testified at trial that the document was accurate and refreshed

his recollection. Trial Tr. (5/10/2012) at 16–23, 50, reprinted

in S.A. 1235–42, 1253. The agent would have testified to the

substance of Sitzmann’s admissions regardless, so counsel’s

failure to object was certainly not prejudicial—nor even

deficient, as counsel acted reasonably to “avoid emphasizing

damaging information by objecting to the form of otherwise

admissible testimony.” United States v. Bosch, 914 F.2d 1239,

1247 (9th Cir. 1990).

The entirety of Sitzmann’s third ineffective-assistance

allegation consists of the following citation-free sentence:

“Trial counsel deliberately or with gross negligence opened the

door for the government to introduce otherwise inadmissible

evidence harmful to his client’s defense.” Appellant’s Br. 60.

This is far too conclusory to establish a colorable claim.

Fourth, Sitzmann complains that trial counsel stipulated to

his two prior drug convictions. However, counsel stipulated

only to the fact of the convictions, and did so only after the

district court had held—over defense counsel’s vigorous

objection—that the facts and circumstances surrounding the

convictions were admissible to show Sitzmann’s knowledge,

intent, and ability to engage in a high-volume international

drug smuggling operation. United States v. Sitzmann

(Sitzmann III), 856 F. Supp. 2d 55, 58–66 (D.D.C. 2012). After

that ruling, it was neither deficient performance nor prejudicial

for counsel to build some credibility by not contesting the

uncontestable.

Fifth, Sitzmann complains that trial counsel failed to

object to expert testimony about drug-smuggling methods in

Colombia and Canada, where Sitzmann had been operating.

This Court, however, routinely has upheld the “well-

established practice” of admitting expert testimony about drug

31

trafficking. United States v. Mejia, 448 F.3d 436, 448 (2006).

Counsel’s failure to raise a meritless evidentiary objection was

not deficient performance.

Sixth, Sitzmann complains that trial counsel failed to seek

evidence of prior convictions of co-conspirators Jerry Harvey,

Gary Paulson, and John Sager, all of whom testified against

him. But these witnesses admitted at length their own past

convictions and drug smuggling on direct examination. See

Trial Tr. (4/19/2012) at 70–88, reprinted in S.A. 841–59; Trial

Tr. (4/23/2012) at 4–37, reprinted in S.A. 916–49; Trial Tr.

(4/24/2012) at 4–9, reprinted in S.A. 1006–11. Sitzmann’s

counsel was not deficient in failing to pursue this further, and

his failure to do so was not prejudicial.

Our dissenting colleague notes a seventh, venue-related

allegation of ineffective assistance. Dissent at 1. However,

that claim was raised only in Sitzmann’s reply brief. Compare

Appellant’s Br. 57–62, with Appellant’s Reply Br. 22–25.

Because “[i]t is generally understood that arguments first raised

in a reply brief are untimely,” United States v. Hunter, 786 F.3d

1006, 1011 (D.C. Cir. 2015), we disregard that claim.

Finally, stepping back from the particulars of these

individual allegations, we note that the Government’s overall

case was compelling. Sitzmann himself discussed drug

smuggling on recorded phone conversations played to the jury.

Gov’t Ex. 43, reproduced in S.A. 684. Several of Sitzmann’s

co-conspirators testified against him. Supra, at 3. A

government agent recounted Sitzmann’s extensive

admissions—including to several operations that involved

smuggling cocaine to or through the United States. Trial Tr.

(5/10/2012) at 30, 44–48, reprinted in S.A. 1244, 1248–52.

Physical and documentary evidence revealed that Sitzmann

owned airplanes used to transport drugs, as well as SUVs

32

outfitted with secret compartments. Gov’t Exs. 400a, 400b,

400n, 400x, 400z, 400hh, 400jj, 430, 431, 446, 1007a–1007f,

1008, reprinted in S.A. 592–99, 687–702; Trial Tr. (4/24/2012)

at 34–40, reprinted in 1020–26. Together, this overwhelming

evidence of guilt forecloses any colorable inference of

prejudice under Strickland.

Because Sitzmann has raised no colorable claim of

ineffective assistance, we affirm on this point without

remanding.

III. CONCLUSION

For the foregoing reasons, we affirm Sitzmann’s

conviction.

So ordered.

1

KATSAS, Circuit Judge, concurring: The Court rejects

Sitzmann’s ineffective-assistance claims on the ground that

they are not sufficiently colorable, as first raised on appeal, to

justify a remand. I join that analysis, but write separately to

highlight a second reason why we should reject Sitzmann’s

claims—because they were not preserved below.

The usual rule, of course, is that parties must raise issues

in the district court in order to preserve them for appeal. See,

e.g., United States v. Gewin, 759 F.3d 72, 78 (D.C. Cir. 2014).

We have relaxed that rule for claims alleging ineffective

assistance of trial counsel, but only because “trial counsel

cannot be expected to argue his own ineffectiveness,” United

States v. Weaver, 281 F.3d 228, 234 (D.C. Cir. 2002), or to

develop the factual record necessary to support such a claim.

Thus, when new counsel appears on appeal, he may raise

ineffective assistance of trial counsel for the first time—and

secure a remand if the claim is colorable and needs further

factual development. See, e.g., United States v. Haight, No.

16-3123, __ F.3d __, slip op. at 10 (D.C. Cir. June 22, 2018).

However, when new counsel appears in the district court and

has a fair opportunity to challenge the effectiveness of prior

counsel, there is no need—and no justification—for applying

any exception to ordinary preservation rules.

United States v. Debango, 780 F.2d 81 (D.C. Cir. 1986),

proves this point. In Debango, defense counsel appointed post-

verdict unsuccessfully argued, in a motion for new trial, that

trial counsel had been ineffective. See id. at 84 n.1. On appeal,

the defendant again claimed that trial counsel had been

ineffective. On one of the four claims, we held that trial

counsel had not rendered deficient performance. See id. at 85

n.2. On a second, we affirmed the district court’s finding of no

prejudice. See id. at 85. Then, we held that the factual record

was insufficiently developed to support the third and fourth

2

claims. With regard to the allegedly ineffective failure to

locate and interview a potentially helpful witness, we

concluded: “Because appellant failed to introduce evidence in

the District Court, in the new trial motion, of what [the witness]

would have said had trial counsel located him, the record

simply fails to support his claim that he was prejudiced by

counsel’s failure to locate [the witness].” Id. at 86. Finally,

with regard to the final claim that defense counsel had “slept

through much of the trial,” we held that “appellant is barred

from pursuing the claim in this court because he failed to

submit any evidence on the issue in the District Court to

support his motion for a new trial.” Id.

Critically, Debango refused to remand to permit additional

factual development on the final two claims. We stated the

governing rule: “when counsel changes prior to appeal and

when there is still a reasonable opportunity to challenge a

conviction in the District Court, a criminal defendant bears the

usual obligation to raise issues and introduce evidence in the

trial court in order to preserve his claims on appeal.” Id. at 86.

We then applied that rule: “We therefore decline to remand the

case to allow appellant to substantiate his contentions

concerning [the witness] and the sleeping charge.” Id. at 86

n.6. Finally, we distinguished cases where we had remanded

ineffective-assistance claims “because counsel had changed

only on appeal,” as “[t]he defendants in those cases had no

opportunity to present evidence in the District Court on their

ineffective assistance claims.” Id.

The dissent quotes a statement in United States v. Cyrus,

890 F.2d 1245, 1247 (D.C. Cir. 1989), that Debango “stands

only for the proposition” that the defendant, if he chooses to

raise any ineffective-assistance claims in a motion for new trial,

“must raise all” of those claims together. However, that

statement does not control cases where new counsel enters in

3

time to handle the new-trial motion, for Cyrus is not such a

case. See Landgraf v. USI Film Products, 511 U.S. 244, 265

(1994) (“general expressions, in every opinion, are to be taken

in connection with the case in which those expressions are

used” (quoting Cohens v. Virginia, 19 U.S. (6 Wheat.) 264, 399

(1821) (Marshall, C.J.))). To the contrary, the new counsel in

Cyrus entered the case only on appeal. See No. 88-3156 (D.C.

Cir. Jan. 6, 1989) (order appointing appellate counsel following

notice of appeal). Moreover, in stressing the need for a remand,

Cyrus relied centrally on United States v. DeCoster, 487 F.2d

1197 (D.C. Cir. 1973), and United States v. Hinton, 631 F.2d

769 (D.C. Cir. 1980)—the very precedents that Debango had

distinguished as ones where “counsel had changed only on

appeal.” 780 F.2d at 86 n.6. Indeed, Cyrus itself supports the

distinction, in explaining that, if possible, “equity and judicial

economy require that a criminal defendant build an evidentiary

record on his ineffective-assistance claims before appealing his

conviction on that basis.” 890 F.2d at 1247 (emphasis added).

Furthermore, less than five months before Cyrus was

decided, in an opinion joined by its author, this Court

confirmed that Debango still was good law and meant what it

said: “The law in this circuit is that a claim of ineffective

assistance must be made in a motion for a new trial ‘when

counsel changes prior to appeal and when there is still a

reasonable opportunity to challenge a conviction in the District

Court.’” United States v. Wood, 879 F.2d 927, 933 (D.C. Cir.

1989) (quoting Debango, 780 F.2d at 86).

Finally, even if Cyrus were broadly read to conflict with

Debango, then Debango still would govern as the earlier

decision. See, e.g., Sierra Club v. Jackson, 648 F.3d 848, 854

(D.C. Cir. 2011) (“when a decision of one panel is inconsistent

with the decision of a prior panel, the norm is that the later

4

decision, being in violation of th[e] fixed law [that panels must

follow circuit precedent], cannot prevail”).

The post-Cyrus “slew of cases” invoked by the dissent,

Post, at 4, which remand colorable ineffective-assistance

claims raised for the first time on appeal, does not change the

analysis. Not one of those cases discusses the special

circumstances where replacement counsel is secured in time to

raise the ineffective-assistance-of-trial-counsel claim in a

motion for new trial. 1

Finally, the dissent quotes at length from Massaro v.

United States, 538 U.S. 500 (2003), and the concurrence in

United States v. Mohammed, 693 F.3d 192 (D.C. Cir. 2012), to

explain that the courts of appeals “are usually not well-

equipped to address ineffective-assistance claims in the first

instance.” Post, at 4. The dissent is correct on that point, which

is precisely why trial counsel should be required, when fairly

possible, to tee up in a new-trial motion any claims that

predecessor counsel had rendered ineffective assistance.

In this case, there was ample opportunity for replacement

counsel to do so. Sitzmann’s ineffective-assistance claims all

challenge decisions made by his trial counsel on or before the

May 21, 2012 jury verdict. Sitzmann’s current counsel was

appointed June 14, 2012. He sought and received seven

extensions of time to file post-trial motions. On January 23,

1

The closest any of them comes to this is United States v. McGill,

815 F.3d 846, 934 (D.C. Cir. 2016), which observed in passing that

one of the defendants, Kenneth Simmons, had received new counsel

prior to sentencing. However, that change was made after Simmons’

motion for a new trial had been resolved. See United States v.

Simmons, Crim. No. 00-157-12 (D.D.C.), ECF Nos. 2282 (order of

May 3, 2006 denying new-trial motion) & 2285 (order of May 8,

2006 appointing new counsel for sentencing and appeal).

5

2013—more than seven months after his appointment—he

filed the new-trial motion. Yet, that motion does not raise any

of the ineffective-assistance claims that Sitzmann now seeks to

pursue on appeal. Under Debango, that is more than enough to

constitute a forfeiture.

One final wrinkle involves Sitzmann’s own unsuccessful

attempts to raise ineffective-assistance claims in the district

court in a pro se capacity. However, in a ruling not challenged

on appeal, the district court held that Sitzmann had forfeited his

right to proceed pro se through a pattern—spanning many

years and many different lawyers—of inconsistent statements

and filings made “as a tactic for delay, disruption, and

manipulation of the legal system.” United States v. Sitzmann

(Sitzmann I), 826 F. Supp. 2d 73, 84 (D.D.C. 2011). As the

court summed up:

Throughout this case, Mr. Sitzmann has demonstrated

that his interest is not truly in representing himself.

He has engaged in a pattern of vacillation, delay, and

manipulation, embracing new counsel until the case is

ready to go forward, then manufacturing conflicts and

besmirching his attorneys’ characters in an attempt to

replace them and further delay his case. He has filed

a series of contradictory and inconsistent motions

over the last several months that mirror his practice

over the last three years of reversing and vacillating in

his requests to proceed with and without counsel.

Id. at 93. We should not reward those tactics now, by treating

Sitzmann as if he were pro se.

Sitzmann’s current counsel had ample opportunity to

claim in his new-trial motion that trial counsel had been

ineffective, yet he failed to do so. Accordingly, I would hold

6

that the ineffective-assistance claims are unpreserved as well

as meritless.

EDWARDS, Senior Circuit Judge, dissenting: For the

reasons indicated below, I dissent from the court’s decision and

judgment in Part II.F.

Sitzmann’s final contention in this case is that his trial

attorney provided ineffective assistance of counsel. He raises

several grounds in support of his ineffective-assistance claim,

including that his trial attorney allegedly (1) made no “effort to

limit . . . hearsay statements made by retired police officer

Buss”; (2) failed to object when a government witness, Agent

John Armbruster, read from a transcript of a conversation

Sitzmann had with federal officials in 2008; (3) “opened the

door” for the prosecution to use “inadmissible evidence

harmful to” Sitzmann’s defense; (4) stipulated to the admission

of Sitzmann’s prior convictions under Federal Rule of

Evidence 404(b); (5) failed to object to certain expert

testimony; (6) failed to impeach Sitzmann’s co-conspirators

with their prior convictions or obtain documents “relating to

their service as informants”; and (7) consented to the

prosecution’s “positions on venue” at trial. Appellant’s Br. 58–

62; Appellant’s Reply Br. 22–25. Sitzmann did not raise these

allegations in the trial court proceedings. However, he asks this

court to resolve these claims in the first instance because,

according to Sitzmann, the trial record conclusively establishes

his entitlement to relief. See Appellant’s Reply Br. 24.

I disagree with the majority’s determination that this court

should dispose of Sitzmann’s ineffective assistance claims in

the first instance. As we routinely do in matters of this sort, I

believe that we should remand Sitzmann’s claims to the

District Court for its consideration. The majority’s refusal to

remand is, in my view, an unfortunate departure from the law

of the circuit.

“When advancing an ineffective assistance argument on

direct appeal, an appellant must present ‘factual allegations

that, if true, would establish a violation of his Sixth

2

Amendment right to counsel.’” United States v. Mohammed,

693 F.3d 192, 202 (D.C. Cir. 2012) (citation omitted). The

allegations must show that his “counsel’s performance was

deficient” and that “the deficient performance prejudiced the

defense.” Strickland v. Washington, 466 U.S. 668, 687 (1984).

Our precedent makes clear that when a defendant “raises a

‘colorable and previously unexplored’ ineffective assistance

claim on appeal,” our typical practice is to remand the claim,

“unless the ‘record alone conclusively shows that the defendant

either is or is not entitled to relief.’” United States v. Bell, 708

F.3d 223, 225 (D.C. Cir. 2013) (citations omitted).

The Government argues that “the trial record ‘conclusively

shows’ that counsel was not deficient and that Sitzmann was

not prejudiced.” Appellee’s Br. 67 (quoting United States v.

Rashad, 331 F.3d 908, 910 (D.C. Cir. 2003)). Citing this

court’s decision in United States v. Debango, 780 F.2d 81

(D.C. Cir. 1986), the Government also maintains that

Sitzmann’s ineffective-assistance claim should not be

remanded because he failed to “allege ineffectiveness” in his

motion for new trial. Appellee’s Br. 68. I disagree with the

Government on both points. I also note that the Government’s

reliance on Debango is misguided and reflects a surprising

defiance of the law of this circuit.

In Debango, the appellant challenged his conviction for

conspiracy to distribute controlled substances on several

grounds, including ineffective assistance of counsel. On

appeal, the appellant raised four arguments in support of his

claim that his trial attorney provided inadequate representation.

780 F.2d at 85. However, in his motion for new trial – which

he filed with the assistance of new, post-trial counsel – the

appellant had raised only three of his four arguments. Id. at 84

n.1, 85–86. The court considered the merits of the three

preserved claims, but “decline[d] to remand the case to allow

3

[the] appellant to substantiate his contentions concerning . . .

the [fourth allegation].” Id. at 86 n.6. The court noted that

“when counsel changes prior to appeal and when there is still a

reasonable opportunity to challenge a conviction in the District

Court, a criminal defendant bears the usual obligation to raise

issues and introduce evidence in the trial court in order to

preserve his claims on appeal.” Id. at 86.

Three years after Debango was decided, the court

“clarif[ied] this circuit’s law on the handling of [S]ixth

[A]mendment claims raised without a record.” United States v.

Cyrus, 890 F.2d 1245, 1247 (D.C. Cir. 1989). We explained

that:

[W]here a party has not sought a new trial or

collaterally attacked his conviction on the grounds of

ineffective representation, this court must remand.

The only exception to that rule is where a defendant

has already raised other ineffective counsel claims in

an evidentiary hearing. United States v. Debango,

780 F.2d 81 (1986). In those cases we have decided

an ineffective representation claim without

remanding for hearings on a new trial motion.

Debango, then, stands only for the proposition that

the defendant must raise all ineffective counsel claims

in the proceeding for new trial.

Our precedent should be clear. Where a party

fails to create a record on the issue of the

ineffectiveness of counsel, this court must remand the

case for such proceedings.

Id. (emphasis added); see also United States v. Fennell, 53 F.3d

1296, 1304 (D.C. Cir. 1995), rev’d on other grounds on reh’g,

77 F.3d 510 (D.C. Cir. 1996) (confirming that “[w]hen an

4

appellant has not raised a claim of ineffective assistance of

counsel before the district court, either in a motion for a new

trial, pursuant to Federal Rule of Criminal Procedure 33, or in

a collateral attack, under 28 U.S.C. § 2255, our general practice

is to remand the claim for an evidentiary hearing”).

In a slew of cases in the nearly twenty years following

Cyrus and Fennell, this court has consistently followed a

practice of remanding “colorable” ineffective-assistance

claims to the District Court for resolution in the first instance,

unless the “‘trial record alone conclusively shows’ that the

defendant either is or is not entitled to relief.” Rashad, 331 F.3d

at 910 (citation omitted); see also United States v. James, 719

F. App’x 17 (D.C. Cir. 2018); United States v. Eshetu, 863 F.3d

946, 957–58 (D.C. Cir. 2017); McGill, 815 F.3d at 942;

Mohammed, 693 F.3d at 202; United States v. Laureys, 653

F.3d 27, 34 (D.C. Cir. 2011) (per curiam). And we have

followed this approach even when the defendant failed to raise

ineffective-assistance claims in a motion for new trial. See, e.g.,

Mohammed, 693 F.3d 192. As the court made clear in Fennell,

“[w]hen an appellant has not raised a claim of ineffective

assistance of counsel before the district court, either in a motion

for a new trial . . . or in a collateral attack, . . . our general

practice is to remand the claim for an evidentiary hearing.” 53

F.3d at 1304.

The law of the circuit reflects an understanding on the part

of the members of the court that we are usually not well-

equipped to address ineffective-assistance claims in the first

instance given their “fact-intensive nature.” Rashad, 331 F.3d

at 909. As the Supreme Court has explained:

When an ineffective-assistance claim is brought on

direct appeal, . . . the court must proceed on a trial

record not developed precisely for the object of

5

litigating or preserving the claim and thus often

incomplete or inadequate for this purpose. . . . The

evidence introduced at trial . . . will be devoted to

issues of guilt or innocence, and the resulting record

in many cases will not disclose the facts necessary to

decide either prong of the Strickland analysis. If the

alleged error is one of commission, the record may

reflect the action taken by counsel but not the reasons

for it. . . . Without additional factual development,

moreover, an appellate court may not be able to

ascertain whether the alleged error was prejudicial.

Under the rule we adopt today, ineffective-

assistance claims ordinarily will be litigated in the

first instance in the district court, the forum best suited

to developing the facts necessary to determining the

adequacy of representation during an entire trial. The

court may take testimony from witnesses for the

defendant and the prosecution and from the counsel

alleged to have rendered the deficient performance.

Massaro v. United States, 538 U.S. 500, 504–05 (2003). In

other words:

We have acknowledged that the court of appeals can

resolve an ineffective-assistance issue in the first

instance when the record “conclusively” shows that

the defendant either is or is not entitled to relief. But

given the fact-bound nature of ineffective-assistance

claims, that exception arises only rarely. If there is

any doubt or difficulty, if it is not obvious from the

face of the record whether relief is warranted, the

appropriate course is simply to remand.

6

Mohammed, 693 F.3d at 206 (Kavanaugh, J., concurring in part

and concurring in the judgment).

Turning to the facts of this case, the record suggests that

Sitzmann attempted to raise a claim of ineffective assistance in

the post-trial proceedings. In a pro se letter to the court filed on

June 12, 2014, Sitzmann explained that he had filed a pro se

motion in November 2012 alleging ineffective assistance of

counsel and had repeatedly asked his attorney for an update on

the status of that motion, but that – against Sitzmann’s wishes

– his attorney had withdrawn the motion. See Letter to Court

Requesting Hearing Date, United States v. Sitzmann, No. 1:08-

cr-242 (D.D.C. June 12, 2014) (Dkt. No. 246). Sitzmann

requested that the court reconsider his motion and schedule a

hearing on his claims. Id. No such hearing was held.

On appeal, Sitzmann raises seven separate bases for his

ineffective assistance claim. If true, the factual allegations

underlying his claims may “establish a violation of his Sixth

Amendment right to counsel.” Mohammed, 693 F.3d at 202

(citation omitted). However, because the record does not

conclusively show whether Sitzmann is or is not entitled to

relief, I would follow our “typical practice” of remanding his

ineffective-assistance claims to the District Court for

consideration in the first instance. United States v. Knight, 824

F.3d 1105, 1112 (D.C. Cir. 2016). Accordingly, I dissent from

Part II.F.