United States of America v. Ryan E. Lee

*The Honorable David L. Bunning, United States District Judge for
the Eastern District of Kentucky, sitting by designation.
1
RECOMMENDED FOR FULL-TEXT PUBLICATION
Pursuant to Sixth Circuit Rule 206
ELECTRONIC CITATION: 2004 FED App. 0063P (6th Cir.)
File Name: 04a0063p.06
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
_________________
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
RYAN E. LEE,
Defendant-Appellant.
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No. 03-3496
Appeal from the United States District Court
for the Southern District of Ohio at Columbus.
No. 02-00024—Algenon L. Marbley, District Judge.
Submitted: December 4, 2003
Decided and Filed: February 27, 2004
Before: SILER and GILMAN, Circuit Judges; BUNNING,
District Judge.*
2 United States v. Lee No. 03-3496
_________________
COUNSEL
ON BRIEF: Isabella Dixon-Thomas, Columbus, Ohio, for
Appellant. Kevin W. Kelley, UNITED STATES
ATTORNEY, Columbus, Ohio, for Appellee.
_________________
OPINION
_________________
DAVID L. BUNNING, District Judge. This is a direct
criminal appeal from a perjury conviction pursuant to
18 U.S.C. §1623. Ryan Lee appeals his conviction on the
basis of: (1) insufficiency of the evidence; (2) the denial of a
motion to dismiss the indictment; (3) the court’s evidentiary
rulings; and (4) the denial of his motion for judgment of
acquittal. The parties have agreed to waive oral argument,
and, upon examination, we agree that oral argument is not
needed. Fed. R. App. P. 34(a). For the following reasons, we
AFFIRM.
BACKGROUND
The indictment against Lee arose from sworn testimony he
gave during his detention hearing before a federal magistrate
judge. In an effort to convince the judge that he was a good
candidate for pretrial release, Lee testified about his
employment. More specifically, Lee testified that he met
Jeffrey Bryant and decided to invest money in Bryant’s
restaurant, Buckeye Fried Chicken (“Buckeye Chicken”).
Lee testified that he worked at Buckeye Chicken and had a
50% interest in the business. Lee stated that he primarily
worked at Buckeye Chicken during the week, not during the
weekends; that he worked from approximately 6:30 a.m. to
about 11:00 a.m.; and that his duties included meeting
vendors and picking up supplies from Gordon Food Service.

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No. 03-3496 United States v. Lee 3
Lee explained that he had one office at the restaurant, and
Bryant had the other.
During cross-examination, Lee announced that he was
refusing to answer any more questions. After consulting with
Lee, Lee’s attorney withdrew Lee’s testimony. The
magistrate judge indicated that he would strike Lee’s
testimony and not consider it in making his decision
regarding Lee’s bond.
After the detention hearing, the FBI investigated Lee’s
statements regarding his employment at Buckeye Chicken.
The results of this investigation led to Lee being charged with
one count of perjury in violation of 18 U.S.C. §1623. The
Indictment charged:
At the time and place alleged, the Court was engaged in
a detention hearing to determine if there were appropriate
conditions of release for defendant RYAN E. LEE. It
was a matter material to said detention hearing to
determine whether or not RYAN E. LEE had
employment, specifically at Buckeye Chicken
Restaurant, 1971 East Livingston Avenue, Columbus,
Ohio.
At the time and place alleged, RYAN E. LEE, while
under oath, did knowingly declare in response to
questions from his attorney before said Court with
respect to the material matter alleged above, as follows:
Q: “Do you go to work there every day, or where do,
how often do you go to work?”
A: “Well mostly just during the week, I’m not
necessarily there during the weekend because we
don’t normally have vendors come through, usually
I’m there in the mornings to have vendors come
through, usually I’m there in the mornings to accept
vendors in. We got chicken coming in, we got rolls
4 United States v. Lee No. 03-3496
coming in, we got uhmm, then I go over to GFS
which is the Gordon Food Services and pick up
supplies and different things like that and drop them
off. So I’m usually in there between 6:30 and I’m
out of there by about 11:00 when we open.”
Q: “If released on some sort of bond would you
continue to work there?”
A: “Yes, sir.”
Lee filed a motion to dismiss the indictment, arguing that
the magistrate’s decision to strike Lee’s testimony made his
testimony a “legal nullity.” The district court denied Lee’s
motion to dismiss the indictment on that basis.
At trial, the United States called six witnesses. Bryant
testified that Lee never worked at Buckeye Chicken, had no
role in the day-to-day operations, and had no responsibilities
at Buckeye Chicken. Bryant also testified that Lee never had
an office at Buckeye Chicken and was never given a key to
the restaurant. Bryant acknowledged that Lee had lent him
$33,000, and that he had signed a document in June of 2000
purporting to give Lee a 40% interest in the Buckeye
Chicken. However, Bryant explained that he never formally
transferred the ownership, and the document giving the 40%
was used only a “stalling tactic.” Bryant stated that Lee asked
him to pay back the loan by issuing payroll checks to Lee
from Buckeye Chicken, which Bryant did for approximately
eight to ten weeks for a total of $418.00 after taxes.
Nicole McCullar, a manager at Buckeye Chicken, testified
that she and Bryant were responsible for Buckeye Chicken’s
day-to-day operations. McCullar stated that she knew Lee
was at least part owner, or a “silent partner” in the restaurant.
McCullar testified that before the restaurant opened, Lee
would run errands for Bryant and helped get the restaurant
open. McCullar stated that Lee would occasionally give her
money to pay for items such as letterhead, business cards,

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No. 03-3496 United States v. Lee 5
computer equipment, and tables. McCullar explained that it
“wasn’t like [Lee] was working but he would be in the store.”
McCullar testified that Lee did not direct employees, but if he
did, they knew to listen to him because of Lee’s connection
to Bryant.
McCullar stated that Lee never opened the store in the
morning, did not have a key, and did not have an office at
Buckeye Chicken. McCullar stated that Lee may have picked
up supplies once or twice. McCullar explained that Lee knew
some of the vendors and would pay them, but he never placed
orders with them. McCullar testified that she had never
observed Lee do any work at the store at the time she was
cutting paychecks for him.
Wayne Wise testified that shortly after he began working at
Buckeye Chicken in December of 2001, he was given the
responsibility of opening the store. Wise explained that he
would arrive at about 8:30 a.m. and only Keith “Pep” Bryant
and McCullar ever opened the store with him. Wise stated he
never knew of anyone with a first name of Ryan working at
Buckeye Chicken.
Lynn Bostelman of Gordon Food Service (“GFS”) also
testified at trial. Bostelman explained that GFS is a wholesale
food distributor. Bostelman testified that Bryant, McCullar,
and a man named Keith were the only people she ever dealt
with as representatives of Buckeye Chicken. Bostelman
indicated the Buckeye Chicken bought items from GFS every
day, and that she had been out to the restaurant several times.
Bostelman did not recognize Lee when asked to look around
the courtroom and point out any representative of Buckeye
Chicken. Bostelman stated that she did not know anyone by
the name of Ryan Lee.
At the close of evidence, Lee’s counsel made a Rule 29
motion for judgment of acquittal. The district court judge
reserved on final decision pursuant to Rule 29(b). After the
jury returned its verdict of guilty, Lee’s counsel made a Rule
6 United States v. Lee No. 03-3496
29 motion for acquittal notwithstanding the jury verdict. The
court took the motion under advisement. At the sentencing
hearing, the district court judge stated that he had considered
the arguments of counsel regarding the Rule 29 motion and
was denying the motion.
ANALYSIS
A. Sufficiency of Evidence
On appeal from a criminal conviction, the question is
whether the relevant evidence, direct or circumstantial,
viewed in the light most favorable to the government, could
be accepted by a reasonable-minded jury as adequate and
sufficient to support the conclusion of the defendant’s guilt
beyond a reasonable doubt. United States v. Meyers, 646
F.2d 1142, 1143 (6th Cir. 1981). This inquiry does not
require a court to “ask itself whether it believes the evidence
at the trial established guilt beyond a reasonable doubt, ...
[but] if any rational trier of fact could have found the essential
elements.” Jackson v. Virginia, 443 U.S. 307, 312-13 (1979).
In order to obtain a conviction for perjury in violation of
18 U.S.C. § 1623, the government must prove that the
defendant: (1) knowingly made (2) a materially false
declaration (3) under oath (4) in a proceeding before or
ancillary to any court of the United States. United States v.
McKenna, 327 F.3d 830, 838 (6th Cir. 2003). A statement is
material if “it has the natural tendency to influence, or was
capable of influencing, the decision of the decision-making
body to which it was addressed.” Id. at 839 (citation omitted);
see also United States v. Sassarelli, 118 F.3d 495, 499 (6th
Cir., 1997). Nor is it required that the government prove that
the perjured testimony actually influenced the relevant
decision-making body. McKenna, 327 F.3d at 839. Further,
materiality is tested at the time the allegedly false statement
was made. Id. (emphasis added).

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No. 03-3496 United States v. Lee 7
At trial, FBI Agent Creedon testified that during the
detention hearing, Lee was placed under oath and took the
witness stand to testify on his own behalf about his
employment status. Lee testified that he worked at Buckeye
Chicken and described his duties at the restaurant. When
asked if he went to work every day, or how often he worked,
Lee stated that he worked during the week from
approximately 6:30 a.m. to about 11:00 a.m. Lee testified
that his duties at Buckeye Chicken included meeting with
vendors and picking up items from GFS. Lee indicated that
he had an office at Buckeye Chicken.
During the trial, Bryant, McCullar, and Wise each testified
that Lee did not work at Buckeye Chicken. Bryant and
McCullar testified that Lee had no responsibilities in the day-
to-day operations at Buckeye Chicken. Wise testified that he
never saw Lee at Buckeye Chicken when he was opening the
restaurant at 8:30 a.m. Bryant admitted that Lee had been
“cut” Buckeye Chicken paychecks, but explained that the
checks were only to repay a loan. McCullar testified that she
thought of Lee only as a silent partner, and that Lee might
have gone to GFS twice. Bostelman testified that Buckeye
Chicken made purchases every day at GFS, but she had never
seen Lee nor heard his name. Regardless of what Lee
believed his role at Buckeye Chicken to be, this testimony
directly contradicted his statements that he was at Buckeye
Chicken “mostly” during the week, “usually” between the
hours of 6:30 and 11:00, and that he was meeting vendors
there; and regularly making trips to GFS.
Viewed in the light most favorable to the government, the
evidence was clearly sufficient for a rational trier of fact to
find that Lee knowingly made false and material declarations
under oath during his detention hearing regarding his
employment status at Buckeye Chicken. Therefore, there was
sufficient evidence presented at trial to sustain the jury’s
verdict.
8 United States v. Lee No. 03-3496
B. Motion to Dismiss the Indictment
A district court’s refusal to dismiss an indictment is
reviewed for an abuse of discretion. United States v. Powell,
823 F.2d 996, 1001 (6th Cir. 1986), cert. denied, 484 U.S.
969 (1987); United States v. Overmeyer, 899 F.2d 457, 465
(6th Cir. 1990), cert. denied, 498 U.S. 939 (1990). In denying
Lee’s Motion to Dismiss, the district court relied on United
States v. Swift, 809 F.2d 320 (6th Cir. 1987), and United
States v. Sarihifard, 155 F.3d 301 (4th Cir. 1998).
In Swift, this court held that a false statement’s failure to
lead the tribunal astray is irrelevant for 18 U.S.C. § 1623
analysis. 809 F.2d at 324. The court stated that “a false
declaration satisfies the materiality requirement if a truthful
statement might have assisted or influenced the grand jury in
its investigation.” Id. (citing United States v. Richardson, 596
F.2d 157, 165 (6th Cir. 1979)); see also United States v. Lutz,
154 F.3d 581, 588 (6th Cir.1998) (holding that a statement is
"material" if it has the natural tendency to influence or is
capable of influencing a decision making process; showing of
actual influence unnecessary to prove materiality); United
States v. DeZarn, 157 F.3d 1042, 1049 (6th Cir.1998) (same).
In Sarihifard, it was conceded that the defendant’s false
statement to a grand jury had no influence on the grand jury’s
decision because the government later told the grand jury to
disregard it because it was false. 155 F.3d at 307. However,
the court noted that “[a] false statement’s capacity to
influence the fact finder must be measured at the point in time
that the statement was uttered.” Id. (citing United States v.
Holley, 942 F.2d 916, 923 (5th Cir. 1991)). Therefore, the
court stated that the fact that the government told the grand
jury not to rely on the defendant’s testimony was irrelevant.
Id. The court stated that to hold otherwise would
allow witnesses who lie under oath to escape prosecution
if their statements before a grand jury are obviously false.
This rationale protects witnesses who fabricate testimony

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No. 03-3496 United States v. Lee 9
that a grand jury will recognize instantly as false. An
argument for the creation of such an incentive not only
misconstrues the scope of materiality, it strains logic.
Id.
Lee’s statements regarding his employment at Buckeye
Chicken were material because that information was capable
of influencing the magistrate judge’s decision as to whether
Lee should remain in custody. Even though Lee’s testimony
was withdrawn and ultimately stricken, Lee’s testimony had
the capacity to influence the magistrate judge at the time it
was given. A defendant cannot perjure himself and then have
his perjurious testimony stricken in order to escape
prosecution. As recognized by the district court, to conclude
otherwise would lead to absurd results. Therefore, the district
court did not abuse its discretion in overruling Lee’s Motion
to Dismiss the Indictment.
C. Evidentiary ruling
A district court’s evidentiary rulings are reviewed under an
abuse of discretion standard. United States v. Garcia, 20 F.3d
670, 672 (6th Cir. 1994), cert. denied, 513 U.S. 1159 (1995);
United States v. Hickey, 917 F.2d 901, 904 (6th Cir. 1990).
Lee argues that the district court erred in not allowing the
jury to hear the portion of the detention hearing transcript
where the magistrate judge struck his allegedly perjurious
statements from the record. Lee’s argument is based on
United States v. Gaudin, 515 U.S. 506 (1995), wherein the
Supreme Court held that the Constitution requires the judge
to submit any question of materiality concerning a
defendant’s false statement to the jury. In Gaudin, the trial
judge had instructed the jury that “[t]he issue of materiality
. . . is not submitted to you for your decision but rather is a
matter for the decision of the court. You are instructed that
the statements charged in the indictment are material
statements.” Id. at 508. The Court held that because the trial
10 United States v. Lee No. 03-3496
judge had abrogated the jury’s ability to make factual
determinations on one of the requisite elements of the offense,
a constitutional violation had occurred. Id. at 523. Lee’s
reliance on Gaudin is misplaced.
Unlike the case in Gaudin, the issue of materiality was
submitted to the jury during Lee’s trial. The jury heard
testimony regarding the materiality of Lee’s statements at the
detention hearing, and then was specifically instructed to
determine whether Lee’s statements were material.
Therefore, the district court did not abrogate the jury’s ability
to make a determination regarding materiality.
Rather, the district court merely ruled, as a matter of law,
that the portion of the transcript wherein the magistrate judge
struck Lee’s earlier testimony was not relevant and could
mislead the jury. Relying on Sarihifard and Swift, supra, the
district court explained that the magistrate judge’s statement
that he would not consider Lee’s testimony was not relevant
because the materiality of Lee’s testimony should be
measured at the time that the statement was uttered.
Based on this reasoning and the authority cited by the
district court, it was not an abuse of discretion to exclude
evidence showing that Lee’s testimony was subsequently
stricken by the magistrate judge.
D. Rule 29 motion
The district court’s refusal to grant a motion for judgment
of acquittal is a legal question that we review de novo. United
States v. Keeton, 101 F.3d 48, 52 (6th Cir. 1996) (citing
United States v. Gibson, 896 F.2d 206, 209 (6th Cir. 1990)).
We must determine “whether, after viewing the evidence in
the light most favorable to the prosecution, any rational trier
of fact could have found the essential elements of the crime
beyond a reasonable doubt.” Jackson v. Virginia, 443 U.S.
307, 319 (1979). “Substantial and competent” circumstantial
evidence by itself may support a verdict and need not

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No. 03-3496 United States v. Lee 11
“remove every reasonable hypothesis except that of guilt.”
United States v. Stone, 748 F.2d 361, 363 (6th Cir. 1984).
The general hesitancy to disturb a jury verdict applies with
even greater force when a motion of acquittal has been
thoroughly considered and subsequently denied by the trial
judge. United States v. Orrico, 599 F.2d 113, 116 (6th Cir.
1979).
As stated herein at Section A, a perjury charge pursuant to
18 U.S.C. § 1623 has four elements: (1) knowingly made;
(2) a materially false declaration; (3) under oath; (4) in a
proceeding before or ancillary to any court of the United
States.
After the close of proof, the district court heard arguments
regarding Lee’s Rule 29 motion. Lee’s counsel argued that
the evidence indicated a belief on the part of Lee that he was
40% owner of Buckeye Chicken, that he had a stake in the
business, and it was a place that he worked. The district
judge agreed that some of the evidence could create a belief
in Lee’s mind that he was part owner, but pointed out that Lee
testified specifically that he was “usually there between 6:30
and I’m out of there at about 11:00 when we open.” The
court explained that this testimony was material because it
indicated that Lee would be at a certain place during specific
hours during the week and had bearing on his risk of flight.
However, there was no evidence that Lee was there during
those hours. The court was persuaded by the government’s
argument that Lee held himself out as an employee at the
detention hearing, yet the testimony at trial indicated that Lee
did not work at Buckeye Chicken.
Lee argues that the district court erred in overruling his
Rule 29 motion, because the government, in proving the
element of falsity, improperly interjected its own
interpretation regarding Lee’s statement that he was employed
at Buckeye Chicken. Lee relies on United States v. Shotts,
145 F.3d 1289, 1298 (11th Cir. 1998), cert. denied, 525 U.S.
1177 (1999), for the proposition that a perjury conviction
12 United States v. Lee No. 03-3496
must rest on the utterance by the accused; it may not stand on
a particular interpretation that the questioner places upon the
answer.
In Shotts, the Eleventh Circuit reversed the perjury
conviction because the defendant’s statement was “literally”
true, even if it was also “evasive, nonresponsive, intentionally
misleading and arguably false.” Id. at 1299. The court stated
that the questioner has the burden of pinning the witness
down to the specific object of inquiry. Id. at 1298, (citing
Bronston v. United States, 409 U.S. 352, 360 (1973)). The
court explained: “If a witness evades, it is the lawyer’s
responsibility to recognize the evasion and to bring the
witness back to the mark, to flush out the whole truth with the
tools of adversary examination.” Id. (quoting Bronston, 409
U.S. at 362).
Lee’s reliance on Shotts is misplaced. Unlike the defendant
in Shotts, Lee did not give a “literally” true but unresponsive
answer. Lee stated where he worked, what his duties were,
and what specific times he was at work during the week. The
government later investigated Lee’s statements concerning
Buckeye Chicken, found them to be false, and sought an
indictment for perjury. Shotts is also distinguishable because
Lee testified on direct examination conducted by his own
lawyer. When the government attempted to cross-examine
Lee about his employment at Buckeye Chicken, Lee abruptly
stopped testifying. Therefore, Lee made it impossible for the
government to question him and “flush” out his testimony.
The government presented witnesses at trial who testified
that Lee’s statements were false. None of the evidence
supported Lee’s statement that he was “usually there between
6:30 and I’m out of there at about 11:00 when we open.”
Regardless of Lee’s ownership interest, or involvement in the
operations of Buckeye Chicken, the evidence presented at
trial controverted his statement that he was at Buckeye
Chicken during those specific times. Considering the
evidence in the light most favorable to the government, a

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No. 03-3496 United States v. Lee 13
reasonable jury could find that Lee’s statements were
materially false.
Furthermore, the district court thoroughly considered Lee’s
Rule 29 motion. The district judge heard the arguments of the
parties, reserved the decision on the motion in order to
examine the transcript, and then denied Lee’s motion at the
sentencing. Therefore, “the general hesitancy to disturb a jury
verdict applies with even greater force.”
For the foregoing reasons, the district court did not err in
overruling Lee’s Rule 29 motion.
AFFIRMED.

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