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Santha Sonenberg, Assistant Federal Public Defender, ar-
gued the cause for appellant. With her on the briefs was A.J.
Kramer, Federal Public Defender.
Mary-Patrice Brown, Assistant U.S. Attorney, argued the
cause for appellee. With her on the briefs were Eric H.
Holder, Jr., U.S. Attorney, John R. Fisher, Robert A. Spelke,
and Nancy R. Page, Assistant U.S. Attorneys.
Before: Wald, Henderson and Tatel, Circuit Judges.
Opinion for the Court filed by Circuit Judge Tatel.
Tatel, Circuit Judge : A jury convicted appellant of posses-
sion with intent to distribute cocaine and cocaine base.
Claiming ineffective assistance of counsel in violation of the
Sixth Amendment, appellant filed a Rule 33 motion for new
trial that the district court dismissed as untimely. Because
we conclude that the facts alleged in support of appellant's
Sixth Amendment claim were not "newly discovered" within
the meaning of Rule 33, we affirm the district court's dismiss-
al of the new trial motion. Although appellant raises a
colorable ineffective assistance claim on direct appeal that we
cannot resolve on the existing record, we need not remand to
the district court because appellant has renewed the same
claim in a pending section 2255 proceeding where the Govern-
ment admits the need for a fact-finding hearing. Finally, we
find no plain error in the district court's failure to instruct the
jury on the credibility of a drug addict's testimony.
Police arrested appellant Angel Torres and a co-defendant,
Jannette Nunez, at a Washington, D.C. bus station after a
search of Nunez's luggage uncovered approximately 250
grams of cocaine base and six grams of cocaine hydrochloride
that Nunez claimed belonged to Torres. Pursuant to a plea
agreement, Nunez testified against Torres at his trial on
charges of possession with intent to distribute cocaine and
cocaine base in violation of 21 U.S.C. § 841. On the second
day of trial, Torres failed to appear in court. After the
district judge issued a bench warrant, the jury convicted
Torres in absentia on the drug charges.
Arrested on the bench warrant more than three years
later, Torres returned to court in July 1994. Through newly-
appointed counsel, Torres moved for a new trial in July 1995,
claiming that because he spoke little English, he had been
unable to communicate with the lawyer who had represented
participated in all court proceedings, Torres argued that his
trial lawyer's failure to use an interpreter in their out-of-court
meetings denied him the Sixth Amendment right to effective
assistance of counsel. The district court dismissed Torres's
motion for lack of jurisdiction because it had not been made
within seven days of the verdict as generally required by
Federal Rule of Criminal Procedure 33. United States v.
Sanchez, 917 F. Supp. 29 (D.D.C. 1996). Although Rule 33
provides that motions for a new trial based on "newly discov-
ered evidence" may be brought any time within two years of
final judgment, the district court held that "evidence of
ineffective assistance of trial counsel known to but unappreci-
ated by the defendant at the time of trial does not constitute
newly discovered evidence" within the meaning of the Rule.
Id. at 33. The district court sentenced Torres to 235 months
in prison.
After filing this appeal, Torres renewed his Sixth Amend-
ment claim in a collateral attack on his sentence. See 28
U.S.C. § 2255 (1994). In that proceeding, still pending in the
district court, the Government has conceded the need for a
hearing.
Torres claims that the district court erred in dismissing his
new trial motion as time-barred, arguing that his trial coun-
sel's alleged ineffective assistance amounted to "newly discov-
ered evidence" under Rule 33. Although we typically review
denials of new trial motions for abuse of discretion, see
United States v. Lafayette, 983 F.2d 1102, 1105 (D.C. Cir.
1993), because the district court dismissed Torres's motion on
jurisdictional grounds, our review is de novo. See United
States v. Haddock, 956 F.2d 1534, 1544 (10th Cir. 1992).
Rule 33 provides in relevant part:
The court on motion of a defendant may grant a new trial
to that defendant if required in the interest of jus-
tice.... A motion for a new trial based on the ground of
newly discovered evidence may be made only before or
within two years after final judgment.... A motion for
a new trial based on any other grounds shall be made
within 7 days after verdict or finding of guilty or within
such further time as the court may fix during the 7-day
period.
Nine of our sister circuits have considered the issue before us
today, and all nine have held that an ineffective assistance of
counsel claim may not serve as the basis for a new trial
motion under the "newly discovered evidence" prong of Rule
33 where the facts alleged in support of the motion were
known to the defendant at the time of trial. United States v.
Lema, 909 F.2d 561, 566 (1st Cir. 1990); United States v.
Dukes, 727 F.2d 34, 39 (2d Cir. 1984); United States v. Smith,
62 F.3d 641, 648 (4th Cir. 1995); United States v. Ugalde, 861
F.2d 802, 806 (5th Cir. 1988); United States v. Seago, 930
F.2d 482, 489 (6th Cir. 1991); United States v. Ellison, 557
F.2d 128, 133 (7th Cir. 1977); United States v. Laird, 948
F.2d 444, 446 (8th Cir. 1991); United States v. Lara-
Hernandez, 588 F.2d 272, 275 (9th Cir. 1978); United States
v. Miller, 869 F.2d 1418, 1421 (10th Cir. 1989); see also
United States v. DeRewal, 10 F.3d 100, 104 (3d Cir. 1993)
(suggesting same result in dictum). Instead, an ineffective
assistance claim, time-barred for the purposes of a new trial
motion, may be brought after sentencing in a collateral attack
under 28 U.S.C. § 2255. See, e.g., Ellison, 557 F.2d at 134.
Following the reasoning of these cases, the district court
dismissed as untimely Torres's new trial motion, brought
some four and a half years after the verdict, because Torres
admitted knowing at the time of trial of his lawyer's purport-
ed communication problem. In reaching this result, the
district judge rejected as "debilitative jurisprudence" this
court's decision in United States v. Brown, 476 F.2d 933 (D.C.
Cir. 1973), which he read to establish a contrary rule. San-
chez, 917 F. Supp. at 32-33. According to the district judge:
The fact that District of Columbia law is exceptional in
this area is not a concern of this court. Circuit splits and
related issues of uniformity in the law are the grist of
federal appellate courts' dockets. Federal district
courts, in contrast, focus their attention on the logical
and deliberate application of existing law. Thus, the
District of Columbia's stand-alone status in its Rule 33
jurisprudence does not prompt this court to reject the
approach established by this line of cases. Rather, it is
because this approach upsets the balance of competing
interests struck by the existing structure of post convic-
tion relief and contradicts the plain meaning of Rule 33
that this court is compelled to disavow District of Colum-
bia precedent and embrace the approach taken by all
other federal courts in this country.
Id. at 32.
We welcome and consider carefully the candid views of our
colleagues on the district court, including their criticism of
circuit law. But just as we "leave to [the Supreme Court] the
prerogative of overruling its ... decisions," Rodriguez de
Quijas v. Shearson/American Express, Inc., 490 U.S. 477, 484
(1989), district judges, like panels of this court, are obligated
to follow controlling circuit precedent until either we, sitting
en banc, or the Supreme Court, overrule it. See, e.g., La-
Shawn A. v. Barry, 87 F.3d 1389, 1395 (D.C. Cir. 1996)
(noting circuit precedent may be overruled only by the full
circuit court). That a district judge disagrees with circuit
precedent does not relieve him of this obligation whether or
not the precedent has been embraced by our sister circuits.
In this case, however, the district judge's "disavow[al]" of
circuit precedent, though unauthorized, was entirely unneces-
sary, for Brown's discussion of Rule 33 is dictum. See
Gersman v. Group Health Assoc., Inc., 975 F.2d 886, 897
(D.C. Cir. 1992) ("Binding circuit law comes only from the
holdings of [the court], not from its dicta."). The defendant
in Brown had neither moved for a new trial in the district
court nor raised ineffective assistance of counsel on appeal.
Finding an ineffectiveness claim "lurk[ing]" in the defendant's
argument that he should not be bound by his trial lawyer's
failure to preserve an evidentiary issue for appeal, the court
suggested that the defendant "may seek to raise the issue of
ineffectiveness and support his claim with evidence [outside]the record either on a timely motion for a new trial or on
collateral attack." Brown, 476 F.2d at 935. In a footnote
that the district judge in this case interpreted as a holding,
the court stated that "[w]here evidence of the ineffectiveness
of trial counsel is brought to the attention of the court for the
first time in support of the motion, that evidence is 'newly
discovered' for the purposes of Rule 33." Id. at 395 n.11.
Unnecessary to the court's disposition of the case, the Brown
footnote, admittedly lending itself to varying interpretations,
binds neither us nor the district judge. Although we cited
Brown in United States v. DeCoster, 487 F.2d 1197, 1205 n.38
(D.C. Cir. 1973), for the proposition that claims of ineffective
assistance of counsel should "first be presented to the district
court in a motion for a new trial," id. at 1204-05, neither
DeCoster nor any subsequent decision transformed Brown's
footnote about the scope of Rule 33's newly discovered evi-
dence provision into a circuit holding. Indeed, to the extent
Brown's dictum suggests that every ineffective assistance
claim constitutes "newly discovered evidence," we have im-
plicitly questioned it. As we observed just two years after
Brown, "most new trial motions in reliance on [ineffective
assistance of counsel] are not classifiable as motions based on
newly discovered evidence," United States v. Tindle, 522 F.2d
689, 692 n.8 (D.C. Cir. 1975), and thus the "ineffective assis-
tance argument can ... be placed before the District Court
only through a § 2255 motion." Id. at 692.
As authority for its reading of the Rule, the Brown court
cited United States v. Thompson, 475 F.2d 931 (D.C. Cir.
1973). Like Brown, however, Thompson did not involve a
motion for new trial. Although indicating that the defendant
could pursue a new trial motion " 'without excusing that
action by a showing of earlier due diligence,' " Thompson, 475
F.2d at 932 (quoting United States v. Smallwood, 473 F.2d 98,
104 (D.C. Cir. 1972) (Bazelon, C.J., concurring)), Thompson
held only that the defendant's ineffective assistance claim,
based on trial counsel's failure to call certain witnesses, could
not be resolved on direct appeal because it relied on affidavits
outside the record. As other courts have observed, see, e.g.,Ellison, 557 F.2d at 133, the Brown and Thompson courts'
broad reading of Rule 33 may have been intended to dampen
the effect of earlier circuit precedent requiring a "more
powerful showing of [counsel's] inadequacy" to sustain a
collateral attack than to warrant a new trial on direct review.
Bruce v. United States, 379 F.2d 113, 117 (D.C. Cir. 1967).
Because the Supreme Court has now made clear that "no
special standards ought to apply to ineffectiveness claims
made in [collateral] proceedings," Strickland v. Washington,
466 U.S. 668, 698 (1984), that rationale for interpreting the
Rule no longer has force.
The dictum in Brown and Thompson finds its roots in
Marshall v. United States, 436 F.2d 155 (D.C. Cir. 1970), a
case that actually involved review of a motion for new trial
denied by the district court. Marshall held that a defendant
raising a constitutional claim in a new trial motion based on
new evidence need not excuse his lawyer's failure to discover
the evidence at the time of trial with a showing of "due
diligence." Marshall, 436 F.2d at 158-59 & n.11. Without
questioning that holding, we decline today to extend it as
suggested by Brown and Thompson but squarely rejected by
virtually all of our sister circuits. Agreeing with the district
judge in this case, we hold that where a defendant knows the
facts supporting his ineffective assistance of counsel claim at
the time of trial, those facts are not "newly discovered" for
the purposes of Rule 33. A contrary interpretation would not
only defy the Rule's plain language, but, as the district judge
found, would also undermine the time limits Congress has
recently placed on collateral attacks grounded in facts known
at the time of trial, see 28 U.S.C.A. § 2255(1), (4) (West Supp.
1997) (one-year limitation on claims running from date of final
judgment or date evidence could have been discovered
through due diligence). Because Torres concedes that he
knew the factual basis of his ineffective assistance claim_the
alleged language barrier between him and his lawyer_at the
time of his 1991 trial, the district court correctly dismissed his
new trial motion for lack of jurisdiction.
We recognize that the Fourth, Fifth, and Ninth Circuits
have gone further, holding that even "newly discovered" facts
supporting an ineffective assistance claim do not remove a
new trial motion from Rule 33's seven-day time-limit because
such facts do not constitute "evidence" within the meaning of
the Rule. See Smith, 62 F.3d at 648; Ugalde, 861 F.2d at
807-09; United States v. Hanoum, 33 F.3d 1128, 1130-31 (9th
Cir. 1994). But see United States v. Johnson, 12 F.3d 1540,
1547 (10th Cir. 1993) ("[W]here the facts relevant to ineffec-
tive assistance are not known to the defendant until after
trial, they may be raised on a 'newly discovered evidence'
motion under Rule 33."). Not presented with newly discover-
ed facts here, we have no need to endorse this view, and in
any event, doubt that it could be reconciled with our prece-
dents. See United States v. Kelly, 790 F.2d 130 (D.C. Cir.
1986) (district court abused its discretion by failing to hold a
hearing or otherwise resolve factual disputes in new trial
motion alleging newly discovered evidence of Sixth Amend-
ment violation); Marshall, 436 F.2d at 159 & n.11.
III
Torres argues that even if his Rule 33 motion was untimely,
he may raise his Sixth Amendment claim on direct appeal and
that we must remand the claim for an evidentiary hearing.
We agree that the untimeliness of his Rule 33 motion does
not bar him from raising the Sixth Amendment issue here.
We also agree that he raises a colorable claim of ineffective
assistance of counsel. If Torres was unable to communicate
effectively with his attorney, he may have been unable to
make informed choices about whether to plead guilty, wheth-
er to cooperate with the Government, or whether to testify.
Unable to resolve these fact-intensive issues on the record
before us, we normally would remand Torres's ineffective
assistance claim to the district court for a supplemental
hearing. United States v. Cyrus, 890 F.2d 1245, 1247 (D.C.
Cir. 1989). But because Torres has renewed the identical
claim in a collateral attack now pending before the district
court in which the Government has conceded the need for a
hearing, remand is unnecessary.
See United States v. Fen
nell,
53 F.3d 1296, 1304 (D.C. Cir. 1995) (court's general
practice is to remand claim for an evidentiary hearing unless
already raised before district court in motion for new trial or
collateral attack).
For his only other argument on appeal, Torres claims that
because co-defendant Nunez, called as a Government witness,
admitted using heroin at the time of her arrest, the district
court should have given a cautionary instruction to the jury
on the credibility of a drug addict's testimony. Having failed
to request such an instruction from the district court, Torres
concedes that we review only for plain error. Fed. R. Crim. P.
30, 52(b); United States v. Gatling, 96 F.3d 1511, 1524-25
(D.C. Cir. 1996). We find none.
Even assuming Nunez was addicted to drugs when she
testified, a fact not established at trial, "this court has never
adopted a rule requiring a trial court sua sponte to give a
special charge regarding the credibility of ... a drug addict."
United States v. Spriggs, 996 F.2d 320, 325 (D.C. Cir. 1993);
cf. United States v. Kinnard, 465 F.2d 566, 572-73 (D.C. Cir.
1972) (Bazelon, C.J., concurring) (urging adoption of manda-
tory instruction where witness is both an addict and a paid
government informant). Furthermore, because the district
court instructed the jury that the testimony of an accomplice
"should be received with caution and scrutinized with care,"
and because defense counsel cross-examined Nunez regarding
her drug use, Torres has failed to demonstrate prejudice from
the absence of the unrequested instruction. Cf. United States
v. Burrows, 36 F.3d 875, 878 (9th Cir. 1994) (observing that
addict instruction unnecessary where witness's addiction dis-
puted, defendant has adequate opportunity for cross-
examination, or court reads other cautionary instructions).
We affirm.