United States v. J Vrieling

FILED
NOT FOR PUBLICATION JUN 05 2014
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 13-30132
Plaintiff - Appellee, D.C. No. 2:11-cr-00057-RHW-1
v.
MEMORANDUM*
J. SCOTT VRIELING,
Defendant - Appellant.
Appeal from the United States District Court
for the Eastern District of Washington
Robert H. Whaley, Senior District Judge, Presiding
Submitted June 2, 2014**
Seattle, Washington
Before: McKEOWN and WATFORD, Circuit Judges, and WHYTE, Senior
District Judge.***
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
**
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
***
The Honorable Ronald M. Whyte, Senior District Judge for the U.S.
District Court for the Northern District of California, sitting by designation.
J. Scott Vrieling appeals from a conviction of failure to pay taxes under 26
U.S.C. § 7203. For at least a year leading up to the trial, Vrieling represented to
the court that he was seeking counsel diligently and filed motions seeking a
continuance, all the while following the advice of a certain Mr. Ewing to delay the
proceedings. Ultimately, the district court concluded that Vrieling had waived his
right to counsel because his “failure to secure counsel was the result of dilatory
conduct, and further delay to permit [him] to seek counsel would be futile.”
Vrieling received a sentence, which included 24 months of imprisonment.
After his conviction, Vrieling retained counsel who filed a motion for new
trial under Federal Rule of Criminal Procedure 33 allegedly based on newly
discovered evidence that Ewing defrauded Vrieling and the court. The district
court denied the motion as untimely because (1) it was not based on newly
discovered evidence that related to the elements of the crime charged as required
by United States v. Hanoum, 33 F.3d 1128 (9th Cir. 1994), and (2) it was filed
more than 14 days after the verdict was returned and was thus untimely. Vrieling
appeals the denial of his motion for new trial.
As Vrieling acknowledges, the district court properly denied the motion for
new trial. This court held in Hanoum “that a Rule 33 motion based upon ‘newly
discovered evidence’ is limited to where the newly discovered evidence relates to
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the elements of the crime charged. Newly discovered evidence of ineffective
assistance of counsel does not directly fit the requirements that the evidence be
material to the issues involved, and indicate that a new trial probably would
produce an acquittal.” Id. at 1130. Vrieling asks us to “create an exception to []
Hanoum.” We decline to do so.
Vrieling also raises ineffective assistance of counsel. “Claims of ineffective
assistance of counsel are generally inappropriate on direct appeal . . . . [unless] (1)
[] the record on appeal is sufficiently developed to permit review and
determination of the issue, or (2) [] the legal representation is so inadequate that it
obviously denies a defendant his Sixth Amendment right to counsel.” United
States v. McKenna, 327 F.3d 830, 845 (9th Cir. 2003) (internal quotation marks
omitted). Direct appeal is not the proper avenue for determining what relief, if
any, Vrieling is due on this claim. See Hanoum, 33 F.3d at 1131–32.
AFFIRMED.
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