United States of America v. Douglas Anthony Dale

NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
File Name: 11a0477n.06
No. 09-4211
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
DOUGLAS ANTHONY DALE
Defendant-Appellant.
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ON APPEAL FROM THE UNITED
STATES DISTRICT COURT FOR THE
NORTHERN DISTRICT OF OHIO
Before: ROGERS and KETHLEDGE, Circuit Judges; RUSSELL, Chief District Judge.*
RUSSELL, Chief District Judge. On this direct appeal, Defendant-Appellant Douglas
Anthony Dale seeks an order vacating his convictions and remanding the case for a new trial on the
basis of ineffective assistance of counsel. Because we find that Dale’s request for relief would be
better presented in a post-conviction motion to vacate under 28 U.S.C. § 2255, we affirm Dale’s
convictions without prejudice to such a motion.
Dale filed for bankruptcy on October 4, 2005, and received a discharge in the amount of
$112,720.29. On January 29, 2009, a federal grand jury issued a five-count Indictment against Dale
for allegedly engaging in fraudulent conduct during his bankruptcy proceedings. An eight-count
Superseding Indictment was filed on March 25, 2009, charging Dale with bankruptcy fraud in
violation of 18 U.S.C. § 157(1) (Count I), making false declarations in bankruptcy in violation of
The Honorable Thomas B. Russell, Chief United States District Judge for the Western*
District of Kentucky, sitting by designation.

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18 U.S.C. § 152(3) (Counts II, III, IV, V, and VI), making false oaths in bankruptcy in violation of
18 U.S.C. § 152(2) (Count VII), and concealment of assets in violation of 18 U.S.C. § 152(1) (Count
VIII). Prior to trial, the district court granted the government’s motion to dismiss Count VI.
Dale’s trial for bankruptcy fraud began on May 19, 2009. At trial, the government’s evidence
focused primarily on Dale’s interests in Canton Realty, a corporation established in 1992. Dale’s
alleged ownership interests in Canton Realty were not disclosed during his bankruptcy proceeding
and the government argued that Dale attempted to camouflage these interests to defraud both his
creditors and the mother of his child. Specifically, Count I alleged that Dale filed for bankruptcy to
execute or conceal a scheme to defraud the mother of his child regarding his child support
obligations. The jury heard testimony about Dale’s child support arrearage, disclosures during the
child support proceedings, and a settlement agreement between Dale and the mother of his child.
One of the witnesses also suggested that Dale faked a disability to avoid employment. The
government’s remaining evidence sought to establish that Dale violated 18 U.S.C. § 152 by
concealing from the bankruptcy trustee and his creditors his correct address, ownership of real
property, ownership of Canton Realty, and a favorable money judgment.
At the close of evidence, Dale’s trial counsel moved for judgment of acquittal, which the
district court denied. The jury convicted Dale on Counts I, II, III, IV, V, VII, and VIII of the
Superseding Indictment on May 21, 2009. Dale’s counsel renewed his motion for judgment of
acquittal following the jury’s verdict. The district court granted in part and denied in part this
motion, entering judgment of acquittal with respect to Count I based upon insufficiency of the
evidence. The district court noted there was insufficient evidence to find that Dale initiated his
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bankruptcy proceeding for the purpose of executing or concealing a scheme to defraud the mother
of his child. The district court denied the motion for judgment of acquittal as to the remaining
counts and sentenced Dale to 21 months’ imprisonment with three years of supervised release. Dale
appeals the district court’s judgment, arguing that trial counsel’s failure to file a motion for a new
trial following the district court’s judgment of acquittal as to Count I of the Superseding Indictment
violated his Sixth Amendment right to counsel.
“The usual rule is that a defendant may not raise claims for ineffective assistance of counsel
on direct appeal.” United States v. Sullivan, 431 F.3d 976, 986 (6th Cir. 2005) (citing United States
v. Williams, 176 F.3d 301, 312 (6th Cir. 1999)). Instead, appellants should raise such claims in a
post-conviction proceeding under 28 U.S.C. § 2255, thus allowing the parties to develop an adequate
record. Id. (quoting United States v. Barrow, 118 F.3d 482, 494 (6th Cir. 1997)). “If the parties
have adequately developed the record, however, the court can elect to hear the issue on direct
appeal.” United States v. Pierce, 62 F.3d 818, 833 (6th Cir. 1995) (citations omitted). We review
de novo claims of ineffective assistance of counsel when they present mixed questions of law and
fact. United States v. Wagner, 382 F.3d 598, 615 (6th Cir. 2004).
Strickland v. Washington, 466 U.S. 668 (1984), established a two-pronged inquiry for
ineffective assistance of counsel claims:
First, the defendant must show that counsel’s performance was deficient. This
requires showing that counsel made errors so serious that counsel was not
functioning as the “counsel” guaranteed the defendant by the Sixth Amendment.
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.
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Id. at 687. A defendant must satisfy both prongs. Id. Failure to satisfy either prong defeats an
ineffective assistance of counsel claim. Id. at 700. Dale argues that his trial counsel’s failure to
move for a new trial on the basis of prejudicial spillover constitutes ineffective assistance of counsel.
He asserts that evidence of his child support proceedings would have been inadmissible in the
absence of Count I, and that the jury improperly utilized this evidence in reaching a guilty verdict
on all counts. Dale also believes the prosecution used pejorative language to incite the jury and
encouraged the jury to commingle the evidence. Because of this spillover effect, Dale believes he
would have been entitled to a new trial, and that he was therefore prejudiced by his attorney’s failure
to request one.
“Claims of retroactive, or prejudicial misjoinder only succeed when ‘the defendant makes
a showing of compelling prejudice’ or ‘the prosecutor acted in bad faith in bringing the initial . . .
charge.’” Goldsby v. United States, 152 F. App’x 431, 439 (6th Cir. 2005) (quoting United States
v. Warner, 690 F.2d 545, 554 (6th Cir. 1982)). The defendant bears a very heavy burden of showing
prejudicial misjoinder. Id.; United States v. Deitz, 577 F.3d 672, 693 (6th Cir. 2009). In determining
whether a defendant suffered prejudice, courts consider such factors as whether spillover evidence
would incite or arouse the jury to convict on the remaining counts, whether the evidence was
intertwined, the similarities and differences between the evidence, the strength of the government’s
case, and the ability of the jury to separate the evidence. See, e.g., United States v. Rooney, 37 F.3d
847, 855-56 (2d Cir. 1994); United States v. Pelullo, 14 F.3d 881, 898-99 (3d Cir. 1994); United
States v. Murphy, 836 F.2d 248, 256 (6th Cir. 1988).
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In this case, Dale presents a reasonable argument for a finding of prejudice, but we believe
the issue is best left to the trial judge to develop an adequate record and to determine whether the
government acted in bad faith or whether Dale suffered compelling prejudice. By seeking relief
under 28 U.S.C. § 2255, Dale’s claims will be heard by the trial judge who witnessed trial counsel’s
performance and who is in the best position to determine whether Dale would have been granted a
new trial. See Massaro v. United States, 538 U.S. 500, 506 (2003) (“The judge, having observed the
earlier trial, should have an advantageous perspective for determining the effectiveness of counsel’s
conduct and whether any deficiencies were prejudicial.”). A motion to vacate at the district court
level will also allow additional factual development and insight into counsel’s performance. See id.
at 505; United States v. Moran, 393 F.3d 1, 10 (1st Cir. 2004).
For the foregoing reasons, we affirm Dale’s convictions without prejudice, subject to Dale’s
raising his claim in a post-conviction motion to vacate under 28 U.S.C. § 2255.
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