Appeal from the United States District Court for the Eastern District of California. D.C. No. CR-89-00003-REC. Robert E. Coyle, District Judge, Presiding.
Before: Herbert Y.c. Choy, Edward Leavy, and Andrew J. Kleinfeld, Circuit Judges. Opinion by Judge Choy.
I. FACTUAL AND PROCEDURAL BACKGROUND
Appellant John Hanoum was convicted after a jury trial of conspiring to manufacture and distribute methamphetamine, manufacturing and aiding and abetting the manufacture of methamphetamine, possession with intent to distribute methamphetamine, and the use of a firearm during and in relation to a drug trafficking crime, in violation of 21 U.S.C. §§ 846 & 841(a)(1), and 18 U.S.C. §§ 2 & 924(c)(1). We affirm.
In connection with his arrest, Hanoum was seen coming out of a building which was later found to house an operating methamphetamine laboratory (hereinafter "the lab") on a Garden Valley property at the time officers were executing a search warrant on that property. He was wearing rubber boots and gloves, and methamphetamine traces were found on his clothing. Items belonging to Hanoum, including a pistol, were found inside the lab.
Trial of Hanoum and his codefendants was held jointly. Hanoum was represented by an attorney. Hanoum's attorney at trial made no opening statement, but did present witnesses. Hanoum never took the stand to testify, although he claims that his understanding was that he would take the stand. Hanoum is represented by a different attorney on appeal.
Hanoum was convicted on June 29, 1989. In December, Hanoum filed a composite motion for new trial pursuant to Federal Rule of Criminal Procedure 33 as well as 28 U.S.C. § 2255. Both motions relied upon claims of ineffective assistance of counsel, denial of the right to testify, and conflict of interest. On January 19, 1990, in separate orders, the district court denied both motions. However, only the denial of the motion for new trial under Rule 33 is before this court.
A. Newly Discovered Evidence:
Hanoum claims that the district court erred in dismissing his Rule 33 motion for a new trial as untimely. Relying on Baumann v. United States, 692 F.2d 565 (9th Cir. 1982), the district court held that because the motion for a new trial was based upon a claim of ineffective assistance of counsel, it was not based on "newly discovered evidence", and therefore was untimely, as it was not brought within seven days of the verdict.
Hanoum argues that the district court erred in holding that ineffective assistance of counsel can never constitute new evidence under Rule 33. Hanoum claims that ineffective assistance of counsel can constitute new evidence if the ineffectiveness claim is based upon facts which were unknown to the accused at the time of trial. Hanoum relies on this court's statement that "we are not at liberty to disregard the explicit directive of Rule 33 and exempt from the 7-day limitation claims of ineffective assistance of counsel based upon facts known to the accused at the time of trial." United States v. Lara-Hernandez, 588 F.2d 272, 275 (9th Cir. 1978) (emphasis added). Hanoum argues that this language implies that if the underlying facts are unknown to the accused at the time of trial, the ineffective assistance of counsel can be considered as "new evidence."
Hanoum claims that both Lara-Hernandez and Baumann are distinguishable, because the facts underlying the ineffectiveness claim were known to the accused during the trial. Hanoum argues that his claim is based on facts not known to the accused at the time of trial, because he had been deliberately misled by his own attorney. After Hanoum was convicted, he claims to have discovered some disturbing facts about his trial attorney. Allegedly, his attorney never tried to contact witnesses identified by Hanoum (and in at least one case refused to speak with a potential witness), although he told Hanoum that he had tried but was unable to contact those witnesses. Hanoum claims that his attorney forged Hanoum's signature on certain checks, falsified fee arrangements, and transferred Hanoum's and Hanoum's family's assets into the attorney's own name, allegedly to prevent seizure by the Government, but then proceeded to sell those assets and keep the profits. Finally, Hanoum claims that his attorney was having a sexual liaison with Hanoum's wife. On the basis of these allegations, it is asserted that his attorney had every incentive to want Hanoum to remain in prison, thereby creating a conflict of interest. Hanoum claims that he did not know these things until after the trial was over.*fn1
Hanoum is correct in that this court has not explicitly held that ineffective assistance of counsel can never constitute newly discovered evidence, as we have never directly addressed the issue of whether an ineffectiveness claim based on facts unknown to the accused can support a Rule 33 motion based on newly discovered evidence. However, when faced with the same issue, the Third Circuit rejected the argument that a Rule 33 "newly ...