Argued and Submitted July 8, 2013 —Portland, Oregon
Appeal from the United States District Court for the District of Idaho B. Lynn Winmill, Chief District Judge, Presiding D.C. No. 2:10-cr-00148-BLW-1
Dennis P. Riordan (argued); Donald M. Horgan, Riordan & Horgan, San Francisco, California, for Defendant-Appellant.
Syrena C. Hargrove (argued); Wendy J. Olson, United States Attorney, Boise, Idaho, for Plaintiff-Appellee.
Before: Harry Pregerson, Mary H. Murguia, and Morgan Christen, Circuit Judges.
Affirming the district court's order denying a criminal defendant's motion for new trial, the panel held that although consideration of a pre-judgment ineffective-assistance-of-counsel claim is appropriate in some cases, the district court did not abuse its discretion here by deferring consideration of the defendant's ineffective assistance claim to collateral review, when a complete record would be available.
CHRISTEN, Circuit Judge:
This opinion considers when a trial court should determine the merits of an ineffective assistance of counsel claim presented in a pre-judgment motion for a new trial. A federal jury convicted Edgar Steele of murder-for-hire and victim tampering arising from Steele's plan to kill his wife and mother-in-law. Steele argues that the district court erred by denying his pre-judgment motion for new trial without reaching the merits of his claim of ineffective assistance of trial counsel. Although consideration of a pre-judgment ineffective-assistance-of-counsel claim is appropriate in some cases, here the district court did not err by deferring consideration of Steele's ineffective assistance claim to collateral review, when a complete record would be available.
We have jurisdiction over this appeal pursuant to 28 U.S.C. § 1291, and we affirm the district court's order denying the motion for new trial.
According to the evidence presented by the government at trial, Larry Fairfax worked as Edgar Steele's handyman and Steele, himself a criminal defense attorney, hired Fairfax to kill Steele's wife and mother-in-law. The government presented evidence that Steele instructed Fairfax to create two pipe bombs and place one on his wife's car and the other, as a decoy, on his own car so that Steele would look like an intended victim. Fairfax created the pipe bombs and installed them so the cars' exhaust pipes would serve as the ignition sources, but the device on Cyndi Steele's car failed to explode. At Steele's behest, Fairfax investigated what happened and erroneously concluded that the bomb had fallen off. He then dismantled the decoy bomb and removed it from Steele's car. But Steele was not ready to shelve his plans. He threatened to hire another hitman and add Fairfax to the list of targets if Fairfax did not follow through with the killings.
This threat appears to have backfired. Instead of going through with a second murder attempt, Fairfax turned to the FBI and told them about Steele's offer to pay him for the murders. The FBI arranged for Fairfax to wear a recording device and Fairfax recorded two subsequent conversations with Steele. The Fairfax-Steele recordings consist of discussions that took place outside or in a barn at Steele's ranch; discussions of horse care are interspersed with plans for a second murder attempt, this one designed to look like a car accident. On the day Steele and Fairfax had agreed upon for the second murder attempt, law enforcement officials came to Steele's home and falsely informed him that his wife was dead so they could measure his reaction. They subsequently told him that she had not been killed, and they arrested him. Meanwhile, Cyndi Steele was informed of the circumstances of the charges against her husband, and asked to hear the ...