United States v. Gregory Sitzmann

United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued March 22, 2018 Decided June 29, 2018

No. 15-3074

UNITED STATES OF AMERICA,
APPELLEE

v.

GREGORY JOEL SITZMANN,
APPELLANT

Appeal from the United States District Court
for the District of Columbia
(No. 1:08-cr-00242-1)

Paul L. Knight, appointed by the court, argued the cause
and filed the briefs for appellant.

Daniel J. Lenerz, Assistant U.S. Attorney, argued the
cause for appellee. With him on the brief were Jessie K. Liu,
U.S. Attorney, and Elizabeth Trosman, John P. Mannarino,
and George P. Eliopoulos, Assistant U.S. Attorneys.

Before: GRIFFITH and KATSAS, Circuit Judges, and
EDWARDS, Senior Circuit Judge.

Opinion for the Court filed PER CURIAM.
 2
Concurring opinion filed by Circuit Judge KATSAS.

Opinion dissenting from the disposition in Part II.F filed
by Senior Circuit Judge EDWARDS.

PER CURIAM: On May 21, 2012, following a 23-day trial,
a jury found appellant Gregory Sitzmann guilty of one count of
conspiracy to distribute and possess with the intent to distribute
five kilograms or more of cocaine, in violation of 21 U.S.C. §
841(a)(1) and § 846 (2012). The Government presented
evidence at trial that, from approximately 1990 to 2004,
Sitzmann participated in a conspiracy to traffic large quantities
of cocaine from Mexico and Colombia to the United States,
Canada, Europe, and elsewhere.

Following his conviction, Sitzmann filed a motion for
judgment of acquittal or, in the alternative, a new trial,
challenging his conviction on the grounds that venue was
improper and that the Government had impermissibly
introduced and relied on testimony regarding the guilty plea of
one of Sitzmann’s co-conspirators. Sitzmann filed a separate
motion contending that the Government violated its obligations
under Brady v. Maryland, 373 U.S. 83 (1963), to disclose
materially exculpatory evidence to the defense, and also
presented false evidence at trial in violation of Napue v.
Illinois, 360 U.S. 264 (1959). The District Court denied these
motions.

On appeal, Sitzmann contends that the District Court erred
in rejecting his claim that the Government “manufactured
venue” in this case and erroneously concluded that venue was
proper in the District of Columbia (“District” or “D.C.”). He
also asserts that the District Court erred in denying his Brady
and Napue claims and his assertion that the Government
impermissibly introduced and relied on evidence of his co-
 3
conspirator’s guilty plea at trial. He further contends that the
District Court was mistaken when it rejected his pre-trial
motion urging that the court lacked jurisdiction over alleged
criminal wrongdoing involving extraterritorial drug activity.
And he argues that his trial attorney provided ineffective
assistance of counsel.

We find no merit in Sitzmann’s challenges to the
aforementioned rulings of the District Court. We therefore
affirm his conviction.

I. BACKGROUND

On August 7, 2008, a federal grand jury indicted Sitzmann
on the drug conspiracy charges at issue in this case. Sitzmann
was the only defendant charged in the indictment under which
he stood trial. At trial, however, the Government alleged that,
from approximately 1990 to 2004, Sitzmann participated in the
charged conspiracy with several other individuals, including
John Sager, Jerry Harvey, Gary Paulson, and George Jones.

The evidence against Sitzmann consisted of recorded
conversations and testimony from Sitzmann’s alleged co-
conspirators and others, Sitzmann’s own statements, physical
and documentary evidence, and expert testimony. The
evidence showed that the conspiracy began in the early 1990s
when Sitzmann was incarcerated in a Florida prison for
unrelated cocaine charges and became acquainted with fellow
inmates Sager, Harvey, and Paulson. While incarcerated,
Sitzmann, Sager, and Harvey had conversations about using
airplanes to smuggle drugs. Sitzmann and Paulson also
discussed smuggling cocaine into Canada following their
release from prison; Sitzmann told Paulson he had a cocaine
supplier in Mexico, and Paulson agreed to connect Sitzmann to
 4
individuals in Canada to whom Sitzmann could supply cocaine
in the future.

Following Sitzmann’s release from prison in the mid-
1990s, he engaged in several overt acts in furtherance of the
drug conspiracy. For example, he discussed with his co-
conspirators plans to launder money and fly planes to traffic
cocaine from South America to Europe. Sitzmann, Jones, and
other co-conspirators transported cocaine from Mexico to
Canada using SUVs with modified gas tanks. And in February
2004, Sitzmann was arrested in France after French authorities
found seven kilograms of cocaine hidden in his rental car.
Sitzmann remained incarcerated for that offense in France for
several years. During a voluntary conversation with federal
authorities in 2008, Sitzmann admitted that, between
December 2003 and February 2004, he passed through the
United States on at least one occasion when he was smuggling
14 to 16 kilograms of cocaine from Colombia to Europe.

Sitzmann and his co-conspirators engaged in other drug
activities in the United States during the course of the ongoing
conspiracy. For example, Sitzmann admitted to authorities that,
in the mid-1990s, he and Jones went to Chicago to acquire
several kilograms of cocaine. In the early 2000s, Sitzmann and
another individual named Terrence Colligan “shined up” 16
kilograms of cocaine in Jones’ home in Florida. Trial Tr.
(4/30/12) at 59–62. And in 2002, Colligan “cut” two kilograms
of cocaine for Sitzmann in the same home while Jones and
Sitzmann were both present. Gov’t Ex. 1025, reprinted in
Supplemental Appendix (“S.A.”) 719. Unbeknownst to
Sitzmann and Jones, Colligan had been working as a
Government informant since 2000.

Former D.C. police officer William Buss participated in the
Government’s investigation of Sitzmann. At Sitzmann’s trial,
 5
Buss testified that during the course of his investigation he
learned that Jones attempted to acquire 20 kilograms of cocaine
from Sitzmann between approximately September or October
2003 and January 2004. When Sitzmann failed to supply the
cocaine, Jones turned to Colligan to see if he could provide it.
After Colligan reported Jones’ request to law enforcement
officers, the officers organized a controlled delivery of cocaine
to Jones in order to facilitate the arrest of Jones. As part of this
plan, Colligan offered to supply Jones with 20 kilograms of
cocaine.

On March 11, 2004, Jones and Colligan met in Florida to
discuss the deal. Jones assured Colligan that he had buyers for
the cocaine, but the deal fell through when it became clear that
Jones did not have the money to purchase the drugs. Colligan
then returned to D.C. When Jones called Colligan several days
later, Colligan – at the Government’s urging – offered to return
to Florida to supply 16 kilograms of cocaine, but told Jones he
needed $1,000 to cover the costs of transporting the cocaine
from Washington, D.C. to Florida (where Jones was at the
time). The next day, Jones caused $1,000 to be wired from
Florida to D.C.

Agents arrested Jones in Florida on March 26, 2004, right
after Colligan delivered him the 16 kilograms of cocaine.
During a search of Jones’ home, agents found several items
belonging to Sitzmann, including bags with secret
compartments, documents, and supplies for storing drugs.
Jones was charged with conspiracy to possess and distribute
cocaine as well as conspiracy to commit money laundering. He
pled guilty and agreed to cooperate with the Government in the
case against Sitzmann. Jones provided grand jury testimony,
but passed away before Sitzmann’s trial. However, during
Sitzmann’s trial, Buss testified that Jones had pled guilty to
cocaine conspiracy charges and cooperated with the
 6
Government before his death. Defense counsel neither objected
to this testimony nor requested a jury instruction precluding the
jury from using Jones’ guilty plea as substantive evidence
against Sitzmann.

The wire transfer from Jones (in Florida) to Colligan (in
D.C.) became a point of contention between the parties before
and during trial. The District Court concluded that the wire
transfer established venue in D.C. for Sitzmann’s conspiracy
charge. Prior to trial, Sitzmann filed a motion to dismiss the
case, alleging that the Government had impermissibly
“manufactured venue” by orchestrating the wire transfer solely
for the purpose of creating venue in D.C. See United States v.
Sitzmann (Sitzmann IV), 74 F. Supp. 3d 96, 113–14 (D.D.C.
2014). Sitzmann also filed a motion to transfer venue to
Florida. Id. The District Court denied both motions. The
District Court judge doubted whether “venue manipulation” or
“venue entrapment” were viable theories in this circuit and
explained that, even if such concepts existed, the overt acts in
this conspiracy were “committed in many, many different
places” so there was “nothing unfair” about having the criminal
prosecution of Sitzmann in the District of Columbia. Tr. of
Motions Hearing (9/8/11) at 41.

The topic of venue arose again at trial. Buss testified that
the purpose of having Colligan ask Jones to wire funds to D.C.
was to “see some good faith from Jones” and to “g[i]ve us
venue to make the arrest [of Jones] in Washington, D.C.” Trial
Tr. (4/30/12) at 80, 87. Following Buss’ testimony – and at the
urging of the prosecution, with the consent of Sitzmann’s
counsel – the trial judge gave a mid-trial jury instruction stating
that “[v]enue is a legal question about where a case may be
filed and tried. I have already decided that venue is proper in
this Court. It is not a question for the jury to decide.” Id. at 123.
After both sides had rested, however, defense counsel argued
 7
for the first time that the question of venue should be submitted
to the jury. Defense counsel requested that the jury be
instructed that: “If you find that there was a conspiracy, but it
was not in or did not involve the District of Columbia, then you
must acquit the defendant, notwithstanding any other issues in
the case.” Notice of Filing (Tab J), reprinted in S.A. 174. The
District Court denied the requested instruction. See Sitzmann
IV, 74 F. Supp. 3d at 115.

The jury returned a guilty verdict on May 21, 2012.
Sitzmann then filed a motion for judgment of acquittal or, in
the alternative, a new trial, alleging, inter alia, that the District
Court erred as a matter of law in rejecting his “manufactured
venue” claim and finding venue proper in the District of
Columbia. Sitzmann also contended that the Government had
improperly used Jones’ guilty plea as substantive evidence
against him at trial. In a separate post-trial motion, Sitzmann
argued that the prosecution violated its obligations under
Brady, 373 U.S. 83, and Giglio v. United States, 405 U.S. 150
(1972), by failing to produce Jones’ and Colligan’s grand jury
testimony, and also that the prosecution presented false
evidence at trial in violation of Napue, 360 U.S. 264. The
District Court denied both motions. See Sitzmann IV, 74 F.
Supp. 3d at 102–07, 111–17, 127–28; United States v. Sitzmann
(Sitzmann V), 74 F. Supp. 3d 128, 133–38, 139 & n.7, 140
(D.D.C. 2014).

The District Court thereafter sentenced Sitzmann to 348
months of imprisonment followed by 120 months of supervised
release and imposed a $500,000 fine. Sitzmann’s timely appeal
followed.
 8

II. ANALYSIS

A. Standard of Review

We review the District Court’s legal determinations de
novo. United States v. Dunn, 631 F.3d 1291, 1292 (D.C. Cir.
2011). In addition, we review the District Court’s denial of a
motion for judgment of acquittal de novo. United States v.
Kayode, 254 F.3d 204, 212 (D.C. Cir. 2001). In assessing
whether the District Court erred in denying a motion for
judgment of acquittal, we, like the District Court, 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). By contrast,
“[w]e review a [D]istrict [C]ourt’s ruling on a motion for a new
trial for abuse of discretion.” United States v. Johnson, 519
F.3d 478, 487 (D.C. Cir. 2008). Finally, we review de novo
claims that the government violated its obligations under Brady
to disclose evidence favorable to the accused, see id. at 488, as
well as claims under Napue that the government presented false
evidence at trial, see United States v. Mejia, 597 F.3d 1329,
1338 (D.C. Cir. 2010).

B. Extraterritorial Application of Criminal Statutes

Sitzmann first contends that the District Court “lacked
jurisdiction” over evidence introduced at trial that he smuggled
drugs into Europe between 2001 and 2004, including his 2004
arrest in France for illegal importation of narcotics. Appellant’s
Br. 29. He thus argues that the trial judge erred in permitting
the Government to present evidence of his extraterritorial drug
activities at trial. Sitzmann claims this was an error because the
 9
sole object of those foreign drug activities was to possess and
distribute controlled substances outside of the United States.
He further argues that there is no indication that 21 U.S.C. §
841(a)(1) and § 846, the statutes under which he was convicted,
apply to conduct that occurred on foreign soil.

“It is a longstanding principle of American law ‘that
legislation of Congress, unless a contrary intent appears, is
meant to apply only within the territorial jurisdiction of the
United States.’” EEOC v. Arabian Am. Oil Co., 499 U.S. 244,
248 (1991) (quoting Foley Bros., Inc. v. Filardo, 336 U.S. 281,
285 (1949)). In Morrison v. National Australia Bank Ltd., the
Supreme Court established a two-step framework for
determining issues involving the extraterritorial application of
statutes. 561 U.S. 247, 255, 261–73 (2010). The Court recently
described the two-step inquiry as follows:

At the first step, we ask whether the presumption
against extraterritoriality has been rebutted—that is,
whether the statute gives a clear, affirmative
indication that it applies extraterritorially. . . . If the
statute is not extraterritorial, then at the second step
we determine whether the case involves a domestic
application of the statute, and we do this by looking
to the statute’s ‘focus.’ If the conduct relevant to the
statute’s focus occurred in the United States, then the
case involves a permissible domestic application
even if other conduct occurred abroad; but if the
conduct relevant to the focus occurred in a foreign
country, then the case involves an impermissible
extraterritorial application regardless of any other
conduct that occurred in U.S. territory.

RJR Nabisco, Inc. v. European Cmty., 136 S. Ct. 2090, 2101
(2016).
 10

Against this backdrop, we first consider whether 21 U.S.C.
§ 841(a)(1) and § 846 may apply to conduct that occurred
outside of the United States. Read together, § 841(a)(1) and §
846 make it unlawful for “any person” to conspire to distribute
or possess with the intent to distribute a controlled substance,
such as cocaine. Neither § 841(a)(1) nor § 846 provides a “clear
indication” of applying extraterritorially. Morrison, 561 U.S. at
265. The presumption against extraterritoriality therefore
applies.

Our analysis, however, does not end there. At the second
step, we find that “the conduct relevant to the statute[s’] focus
occurred in the United States.” RJR Nabisco, 136 S. Ct. at
2101. The evidence showed that Sitzmann entered the
conspiratorial agreement in the United States, smuggled
cocaine into and out of the United States, and engaged in other
activity in the United States in furtherance of the conspiracy.
Therefore, this “case involves a permissible domestic
application” of § 841(a)(1) and § 846 “even if other conduct
occurred abroad.” Id. Accordingly, we reject Sitzmann’s claim.

C. Claims Regarding Venue

Sitzmann next contends that the District Court erred in
dismissing his “manufactured venue” claim, instructing the
jury mid-trial that venue in the District of Columbia was proper
as a matter of law, and rejecting his later request that the jury
be instructed to determine whether any part of the charged
conspiracy occurred in D.C. We find no merit in these claims.

1. “Manufactured Venue”

We begin with Sitzmann’s contention, which he raised in
his motion for judgment of acquittal, that the Government
 11
improperly “manufactured venue” in this case by luring Jones
into wiring funds from Florida to D.C. to establish venue.
Sitzmann also claims that the Government violated his due
process rights by orchestrating this wire transfer.

Several circuits “have rejected the concept of
manufactured venue or ‘venue entrapment.’” United States v.
Valenzuela, 849 F.3d 477, 488 (1st Cir. 2017); see also, e.g.,
United States v. Rodriguez-Rodriguez, 453 F.3d 458, 462 (7th
Cir. 2006) (“The entrapment doctrine protects the defendant
against manufactured offenses (unless the defendant is
predisposed); it does not limit venue.”); United States v. Al-
Talib, 55 F.3d 923, 929 (4th Cir. 1995) (“There is no such thing
as ‘manufactured venue’ or ‘venue entrapment.’”). Other
circuits, including our own, have reserved ruling on the
question of whether “manufactured venue” is a viable theory,
but have suggested that such a theory may only apply in “cases
involving ‘extreme’ law enforcement tactics.” United States v.
Chi Tong Kuok, 671 F.3d 931, 938 (9th Cir. 2012); see also
United States v. Spriggs, 102 F.3d 1245, 1250–51 (D.C. Cir.
1996) (per curiam) (as amended Feb. 20, 1997); United States
v. Myers, 692 F.2d 823, 847 n.21 (2d Cir. 1982).

In Spriggs, the appellants argued that their convictions
must be set aside because government agents “manufactured
venue” in the District of Columbia by, for example,
“‘purposefully’ arrang[ing] for defendants to pick-up cash” in
D.C. 102 F.3d at 1250. In assessing this claim, we stated that
“[i]t is unclear exactly what a claim of ‘manufactured venue’
entails” and doubted “whether there is such a thing as ‘venue
entrapment.’” Id. We stated further that “[i]t is a little hard to
conceive of a person predisposed to commit a federal crime –
but not in some specific district.” Id. But we declined to resolve
the question of whether the concept of “manufactured venue”
exists, finding that there was “no suggestion [in the record] that
 12
appellants had even the slightest tendency to balk at the
[District of Columbia’s] edge, much less the necessary lack of
predisposition” to commit a federal crime in Washington, D.C.
Id. at 1250–51. The decision “assume[d] without deciding that
there would be a fatal impropriety where ‘the key events occur
in one district, but the prosecution, preferring trial elsewhere,
lures a defendant to a distant district for some minor event
simply to establish venue.’” Id. at 1251 (citation omitted). On
the record before it, however, the court in Spriggs found
nothing “reprehensible” about an agent’s decision to pose as a
drug dealer from Washington, D.C. Id.

Sitzmann asks this court to decide the issue left unresolved
in Spriggs: whether the Government can “manufacture venue”
through entrapment. Appellant’s Br. 34. We decline to do so.
We remain unconvinced that “manufactured venue” or “venue
entrapment” are viable theories. We need not reach the issue,
however, because Sitzmann has failed to point to any
circumstances in this case that might be viewed as “venue
entrapment,” as conceptualized by the court in Spriggs.

Viewing the evidence in the light most favorable to the
prosecution, Jackson, 443 U.S. at 319, there is “no suggestion
[in the record] that [Jones] had even the slightest tendency to
balk at the District’s edge.” Spriggs, 102 F.3d at 1250–51.
When Colligan told Jones that Colligan needed to go to D.C. to
obtain cocaine for Jones, Jones replied, “the sooner the better.”
Tr. of Recordings (3/6/04). And when Colligan asked Jones to
wire $1,000 to D.C. to cover the costs of transporting the
cocaine from Washington, D.C. to Florida, Jones caused the
funds to be wired the next day.

We also reject Sitzmann’s contention that the
Government’s role in facilitating the wire transfer was the kind
of “reprehensible” conduct Spriggs suggested might violate
 13
due process. See Spriggs, 102 F.3d at 1251. We agree with the
District Court that there is nothing inherently reprehensible
about a law enforcement officer’s decision to have a
government cooperator, Colligan, ask a target, Jones, to wire
funds to Washington, D.C. in connection with a cocaine
transaction in which the target was a willing participant. The
overt acts in the charged conspiracy occurred in many places,
so there was nothing unfair about having the case tried in the
District of Columbia.

2. Jury Instruction

We next consider Sitzmann’s contention that the District
Court erred in instructing the jury that venue is a legal question
for the court to resolve and that, as a legal matter, venue was
proper in Washington, D.C. In Sitzmann’s view, venue was a
question of fact for the jury to resolve. We disagree.

Venue is a jury question if “(1) the defendant objects to
venue prior to or at the close of the prosecution’s case-in-chief,
(2) there is a genuine issue of material fact with regard to
proper venue, and (3) the defendant timely requests a jury
instruction.” United States v. Haire, 371 F.3d 833, 840 (D.C.
Cir. 2004) (quoting United States v. Perez, 280 F.3d 318, 327
(3d Cir. 2002)), vacated on other grounds, 543 U.S. 1109
(2005); see also United States v. Nwoye, 663 F.3d 460, 466
(D.C. Cir. 2011). In denying Sitzmann’s motion for a new trial,
the District Court concluded that venue was not a factual
question for the jury under the test set forth in Haire. See
Sitzmann IV, 74 F. Supp. 3d at 111–17. Although we ordinarily
review a District Court’s denial of a motion for new trial for
abuse of discretion, Johnson, 519 F.3d at 487, “[a]n alleged
failure to submit a proper jury instruction is a question of law”
that we review de novo, Joy v. Bell Helicopter Textron, Inc.,
999 F.2d 549, 556 (D.C. Cir. 1993).
 14

The parties do not dispute that Sitzmann satisfied the third
requirement of the Haire test by timely requesting a jury
instruction. See Sitzmann IV, 74 F. Supp. 3d at 111 & n.6. The
principal disagreement between the parties is whether the first
and second requirements of the Haire test were met. Sitzmann
argues that his trial counsel satisfied the first requirement by
asking during the cross-examination of then-retired officer
Buss questions that “focus[ed] on venue-related issues which
had been previously developed during a pretrial motions
hearing” and also by presenting a defense at trial that Sitzmann
“had nothing to do with the purported drug deal between Jones
and Colligan and that there was no venue for that reason.”
Appellant’s Br. 38, 41. Sitzmann maintains that he satisfied the
second requirement by raising at trial the question of whether
the Jones-to-Colligan, Florida-to-D.C. wire transfer was an act
in furtherance of the charged conspiracy. Id. at 41. We find
these arguments unavailing.

“A defendant may object to venue by raising its absence in
a pre-trial motion, challenging during the Government’s case
its evidence as to venue, or making a motion for acquittal at the
close of the Government’s case that specifically deals with”
whether venue in the District Court was proper. Perez, 280
F.3d at 334–35. In his briefing to this court, Sitzmann does not
contend that his pre-trial motions raised the question of
whether venue was proper in the District of Columbia. In
addition, far from challenging the Government’s evidence
regarding venue at trial, Sitzmann’s counsel consented to the
Government’s request that the trial judge instruct the jury that
venue was a legal matter and that the court had determined that
venue was appropriate in the District of Columbia. See
Sitzmann IV, 74 F. Supp. 3d at 115. After the judge delivered
the instruction, “[t]he topic of venue was not raised again
during” the Government’s case-in-chief. Id.
 15

It was only on the day of closing arguments, after both
sides had rested, that Sitzmann raised for the first time the
argument that the jury had to decide whether venue was proper
in the District of Columbia because there was a question of fact
as to whether Sitzmann was still part of the conspiracy when
Jones wired the funds to D.C. See id. at 115 & n.9. The District
Court denied this request pursuant to the Haire test. Id. at 115.

On the record before us, we find no basis to overturn the
District Court’s determination that Sitzmann failed to “object
to venue during trial, either explicitly or by ‘challenging during
the Government’s case its evidence as to venue.’” Id. at 117
(quoting Perez, 280 F.3d at 334). We agree with the District
Court that Sitzmann’s counsel did not place the propriety of
venue in issue during his cross-examination of Buss or at any
other time during trial. Sitzmann’s contention, on the day of
closing arguments, that venue was a jury question because
there was a factual question as to whether he played a role in
the Jones-Colligan transaction, came too late. See Perez, 280
F.3d at 335 (“Objecting to venue at the jury instruction phase,
without more, is not sufficient, for it does not flag and establish
an issue of fact that warrants a special jury instruction.”).
Because Sitzmann did not “object[] to venue prior to or at the
close of the prosecution’s case-in-chief,” Haire, 371 F.3d at
840, Sitzmann failed to satisfy the first requirement of the
Haire test. We therefore conclude that the District Court did
not err in determining that venue was not a question for the jury
to decide.

3. Challenge to Propriety of Venue

We need not linger on Sitzmann’s final contention that
venue was not proper in D.C. See Appellant’s Br. 32–34
(arguing that Sitzmann was not a part of the conspiracy when
 16
the funds were wired to D.C.). As explained above, Sitzmann
forfeited this argument by failing to put it in issue at trial before
the close of evidence and by expressly consenting to a mid-trial
jury instruction informing the jury that venue was proper as a
matter of law. See Nwoye, 663 F.3d at 465–66. Our review of
this unpreserved claim is therefore for plain error. United States
v. Pole, 741 F.3d 120, 124 (D.C. Cir. 2013).

On appeal, Sitzmann does not point to any evidence that
“demonstrates an affirmative effort to withdraw from the
conspiracy.” United States v. Thomas, 114 F.3d 228, 267 (D.C.
Cir. 1997); see also United States v. Bostick, 791 F.3d 127, 143
(D.C. Cir. 2015) (“To withdraw from a conspiracy, an
individual must come clean to the authorities or communicate
his or her abandonment ‘in a manner reasonably calculated to
reach co-conspirators.’” (citation omitted)). Moreover,
Sitzmann’s contention that his arrest in France withdrew him
from the conspiracy fails because an arrest, without more, does
not indicate withdrawal. See, e.g., United States v. Massino,
546 F.3d 123, 137 (2d Cir. 2008) (“[A] conspirator who has
been arrested remains responsible for acts committed in
furtherance of the conspiracy by co-conspirators who are still
at large.”). Therefore, the District Court did not err – let alone
plainly err – in concluding that Sitzmann was still a part of the
conspiracy with Jones at the time of the wire transfer, that the
wire transfer was an overt act in furtherance of the conspiracy,
and that the overt act established venue. See Sitzmann IV, 74 F.
Supp. 3d at 105–07; see also United States v. Watson, 717 F.3d
196, 198 (D.C. Cir. 2013) (“[V]enue is proper in any
jurisdiction where any co-conspirator committed an overt act
in furtherance of the conspiracy.”).
 17
D. Brady and Napue Claims

Sitzmann next contends that he was denied due process of
law because the Government failed to timely disclose
exculpatory and impeachment evidence in violation of Brady
v. Maryland, 373 U.S. 83 (1963), and Giglio v. United States,
405 U.S. 150 (1972), and because the Government knowingly
presented false evidence at trial in violation of Napue v.
Illinois, 360 U.S. 264 (1959). We find no merit in these claims.

1. Alleged Brady Violation

Sitzmann first argues that the Government’s failure to turn
over the grand jury testimony of his co-conspirator, George
Jones, violated Brady. Sitzmann raised this claim in a post-trial
motion to compel the prosecution to produce Jones’ and
Colligan’s grand jury testimony, which the District Court
denied. See Sitzmann V, 74 F. Supp. 3d at 131–33. Although
the Government subsequently produced Jones’ grand jury
testimony for sentencing purposes, Sitzmann contends that this
testimony should have been disclosed prior to trial.

“The Constitution’s ‘fair trial guarantee’ requires the
prosecution to timely turn over any information in the
government’s possession that is materially favorable to a
criminal defendant . . . .” United States v. Straker, 800 F.3d
570, 602 (D.C. Cir. 2015) (per curiam) (quoting United States
v. Ruiz, 536 U.S. 622, 628 (2002)); see also Brady, 373 U.S. at
87. In Giglio, the Supreme Court held that “evidence that could
be used to impeach government witnesses” falls within the
Brady rule. United States v. McGill, 815 F.3d 846, 922 (D.C.
Cir. 2016) (per curiam); see also Giglio, 405 U.S. at 153–54.

There are three components of a Brady claim. First, “[t]he
evidence at issue must be favorable to the accused, either
 18
because it is exculpatory, or because it is impeaching.”
Strickler v. Greene, 527 U.S. 263, 281–82 (1999). Second, the
“evidence must have been suppressed by the [government],
either willfully or inadvertently.” Id. at 282. And third,
“prejudice must have ensued.” Id. To satisfy the prejudice
component, the defendant must show that “there is a reasonable
probability that, had the evidence been disclosed to the defense,
the result of the proceeding would have been different.” United
States v. Bagley, 473 U.S. 667, 682 (1985).

Sitzmann’s Brady claim concerns evidence introduced at
trial that Jones attempted to acquire multi-kilograms of cocaine
from Sitzmann. At trial, then-retired officer Buss testified that
he had learned during his investigation that “Jones was
interested in buying 20 kilograms of cocaine.” Trial Tr.
(4/30/12) at 9. According to Buss, Jones initially attempted to
acquire the 20 kilograms from Sitzmann sometime between
September or October 2003 and January 2004, but when
Sitzmann failed to supply the drugs, Jones turned to Colligan
for the cocaine. Id. at 9–10. Buss testified that Jones intended
to supply this cocaine to individuals with whom Sitzmann was
“involved” – who were “[m]ore of Mr. Sitzmann’s people”
than Jones’ people – and that Jones expected to make “$1,500
for each kilogram sold[;] he was going to split it with Mr.
Sitzmann, $750 a piece.” Id. at 11.

Sitzmann contends that Jones’ grand jury testimony was
both exculpatory – in that it “supported Sitzmann’s position
that he never promised Jones that he would provide [him]
cocaine in late 2003 or 2004” – and also impeaching – in that
it would have contradicted Buss’ testimony that Sitzmann
promised to supply 20 kilograms of cocaine to Jones sometime
in late 2003 or early 2004. See Appellant’s Br. 43–45, 49.
Sitzmann maintains that “Jones never mentioned in his sworn
testimony anything with regard to Sitzmann promising to
 19
supply him with 20 kilograms of cocaine prior to January,
2004, or anytime,” and that “Jones first approached Colligan
for cocaine, not Sitzmann.” Id. at 43–45.

Sitzmann’s Brady claim fails because Jones’ grand jury
testimony is neither exculpatory nor inconsistent with Buss’
recounting of the facts. As part of his grand jury testimony,
Jones adopted a statement of facts in support of his May 2004
guilty plea. See Tr. of Grand Jury Proceedings (6/29/05) at 47–
50. In that statement of facts, Jones admitted the following:

In early January, 2004, Colligan reported that a
criminal associate named Sitzman[n] promised to
supply multi-kilogram quantities of cocaine to
George Jones. Thereafter, in January 2004, Jones
telephoned Colligan to complain that Sitzman[n] had
not delivered the cocaine as promised and George
Jones asked Colligan to supply him with 20
kilo[grams] of cocaine or in the alternative, provide
him with another source of cocaine. . . . Shortly
thereafter, Jones learned of Sitzman[n]’s arrest [and]
detention in France, and confirmed to Colligan that
Sitzman[n] definitely was unable to deliver cocaine.

Agreed Statement of Facts in Support of Guilty Plea at 1–2
(May 12, 2004), reprinted in Appellant’s Appendix (“App.”)
479–80.

Sitzmann acknowledges that Jones adopted the statement
of facts during his grand jury testimony, but notes that the
statement of facts contains “no discussion as to when or where
Sitzmann allegedly made this promise and no discussion of any
amounts that were to be delivered.” Appellant’s Br. 43 n.22.
True enough, but this does not render Jones’ grand jury
testimony inconsistent with the more specific trial testimony
 20
Buss provided based on the information he had learned during
his investigation. See Appellee’s Br. 40.

Sitzmann also argues that Jones’ grand jury testimony was
impeaching because it would have discredited Buss’ testimony
that Jones was going to split his profits from the sale of the
cocaine with Sitzmann “50-50.” Appellant’s Br. 53 (alleging
that Jones’ testimony would have shown that Jones “only
intended to give a small percentage of his hoped-for profit to
Sitzmann”). Sitzmann’s argument is unavailing because Buss’
testimony on this point simply repeated what Jones had said to
Colligan in a recorded statement: that Jones intended to make
“fifteen hundred” on each kilogram sold, “750 to Greg
[Sitzmann] and 750 for me.” Tr. of Recordings (3/11/04).
Because Buss’ testimony merely reiterated this other trial
evidence, there is no “‘reasonable probability’ that the result of
the trial would have been different” had Jones’ grand jury
testimony been disclosed. United States v. Borda, 848 F.3d
1044, 1066 (D.C. Cir. 2017). Sitzmann has therefore failed to
establish a Brady violation.

In short, Sitzmann has not shown that Jones’ testimony
was “favorable to the accused” within the meaning of Brady
and Giglio. Strickler, 527 U.S. at 281–82. Accordingly, the
District Court did not err in rejecting Sitzmann’s claims.
 21
2. Alleged Napue Violation

Sitzmann next contends that the Government presented
false evidence at trial, in violation of Napue. Specifically, he
takes issue with Buss’ testimony that Jones intended to supply
cocaine to “[c]o-conspirators in [this case]” who had been
“involved” with Sitzmann and were “[m]ore of Mr. Sitzmann’s
people” than Jones’ people. Trial Tr. (4/30/12) at 11. Sitzmann
asserts that the prosecution knew Buss’ characterization of the
potential buyers as “Sitzmann’s people” was false because the
Government’s own investigation and Jones’ grand jury
testimony contradicted Buss’ testimony.

“A Napue violation occurs when the government
introduces false or misleading testimony or allows it to go
uncorrected, even though the government knew or should have
known that the testimony was false.” Straker, 800 F.3d at 603.
“If a defendant makes that showing, a new trial is required
[only] if there is ‘any reasonable likelihood that the false
testimony could have affected the judgment of the jury.’” Id.
(quoting United States v. Gale, 314 F.3d 1, 4 (D.C. Cir. 2003)).

Sitzmann’s argument is not without some merit. On the
one hand, some of Jones’ statements in the grand jury cast
doubt on the conclusion that the anticipated customers were
more of “Sitzmann’s people.” For example, the statement of
facts Jones adopted during his testimony states that Jones
“assure[d] Colligan that . . . Jones had a sufficient client base
to sell the cocaine.” Agreed Statement of Facts in Support of
Guilty Plea at 3 (May 12, 2004), App. 481 (emphasis added).
In addition, according to Jones’ testimony, at least two of the
people to whom Jones stated he was going to sell the cocaine
(Alex Mesa and Mike Maloney) were people with whom Jones
had been acquainted. See Tr. of Grand Jury Proceedings
(12/22/05) at 8–12. On the other hand, however, other record
 22
evidence – namely, a recorded conversation between Jones and
Colligan – supports Buss’ conclusion about the potential
buyers. In the recorded conversation, Jones suggested his
potential buyers were Sitzmann’s “people”:

Jones: [] How much are you going to charge me for
this and what do you want me to hold out for you?
Colligan: Eighteen and I’d like to get five hundred a
piece.
Jones: And hold out, five hundred for you?
Colligan: Yeah.
Jones: OK, that’s what I told the guy.
Colligan: Can we do that.
Jones: I’ll make it fifteen hundred. 750 to Greg
[Sitzmann] and 750 for me.
Colligan: OK.
Jones: So this is for his people that I’m doing business
with. . . .

Tr. of Recordings (3/11/04) (emphasis added). Moreover,
Sitzmann had a history of smuggling cocaine with another one
of the potential buyers (Gary Paulson) to whom Jones stated he
would supply the cocaine. In addition, the evidence showed
that when Sitzmann was arrested he had the names and
telephone numbers of several of the potential buyers in his
possession. Because the evidence points in both directions, we
cannot say that the record conclusively shows that the
prosecution knew or should have known that Buss’ testimony
was false. See Straker, 800 F.3d at 603.

In any event, Sitzmann has failed to show that there was a
“reasonable likelihood” that the purportedly false testimony
could have affected the jury’s judgment in this case. Id.
“Officer Buss’s single reference during a five-week trial to
Jones’s potential customers being more ‘Sitzmann’s people’
 23
than Jones’s was unlikely to have influenced the verdict,”
Appellee’s Br. 52, especially in light of the abundant evidence
at trial that Sitzmann participated in the charged conspiracy,
see, e.g., Sitzmann IV, 74 F. Supp. 3d at 103–06, 108–10, 117–
20, 126–27 (describing such evidence). Accordingly, we reject
Sitzmann’s Napue claim.

E. Reference to the Guilty Plea of a Non-Testifying Co-
Conspirator

Sitzmann next argues that the Government impermissibly
used the guilty plea of co-conspirator George Jones as
substantive evidence of Sitzmann’s guilt at trial. See
Appellant’s Br. 54–56. Sitzmann points to the following
exchange between the prosecutor and then-retired officer Buss:

Q: And was there a case in Washington, D.C. against
[Jones] for conspiracy?
A: Yes. I had originally obtained an arrest warrant on
a criminal complaint.
Q: And did Mr. Jones plead guilty?
A: He pled guilty.
Q: What did he plea?
A: And signed a plea agreement.
Q: Okay. And did he plead guilty to conspiracy to
distribute and possess with the intent to distribute at
least 5 kilograms of cocaine?
A: That’s correct.
Q: And did he end up cooperating with the
government?
A: He did.
Q: And what happened to Mr. Jones? Is he alive
today?
A: He passed away.
 24
Trial Tr. (4/30/12) at 47–48. Sitzmann’s defense counsel
neither objected to this line of questioning nor requested (nor
received) a jury instruction stating that the guilty plea of a non-
testifying co-conspirator may not be used as proof of
Sitzmann’s guilt. Sitzmann nevertheless argues that the
reference to the guilty plea was improper and prejudicial
because it revealed to the jury that Jones “had pled guilty to
. . . the exact same charge for which Sitzmann was on trial” and
that Jones, in his role as a government cooperator, fully “agreed
with the Government’s evidence.” Appellant’s Br. 54.

Although Sitzmann later moved, unsuccessfully, for a new
trial on the ground that the reference to Jones’ guilty plea was
improper, he forfeited his claim by not objecting to the
testimony at trial. “For purposes of [reviewing] an alleged error
in admission of evidence, . . . a post-verdict motion for a new
trial is not the same as a timely objection: the delay eliminates
any chance that the judge could correct the error without a
duplicative trial, and according review as if a timely objection
had been raised virtually invites strategic behavior by defense
counsel. Thus we review only for plain error.” United States v.
Thompson, 27 F.3d 671, 673 (D.C. Cir. 1994); see also McGill,
815 F.3d at 896 n.12; FED. R. CRIM. P. 52(b) (“A plain error
that affects substantial rights may be considered even though it
was not brought to the court’s attention.”).

Under the plain error standard, “an appellant must show
that the District Court committed (1) a legal error that was (2)
‘plain’ (a term that is synonymous with ‘clear’ or ‘obvious’),
and that (3) affected the appellant’s substantial rights.” United
States v. Sullivan, 451 F.3d 884, 892 (D.C. Cir. 2006) (citing
United States v. Olano, 507 U.S. 725, 734 (1993)). Under the
third component of the plain error test, a defendant “must . . .
satisfy the judgment of the reviewing court, informed by the
entire record, that the probability of a different result is
 25
‘sufficient to undermine confidence in the outcome’ of the
proceeding.” United States v. Dominguez Benitez, 542 U.S. 74,
83 (2004). “If all three conditions are met, an appellate court
may then exercise its discretion to [correct] a forfeited error,
but only if (4) the error ‘seriously affect[s] the fairness,
integrity, or public reputation of judicial proceedings.’”
Johnson v. United States, 520 U.S. 461, 467 (1997); see
generally EDWARDS & ELLIOTT, FEDERAL STANDARDS OF
REVIEW: REVIEW OF DISTRICT COURT DECISIONS AND AGENCY
ACTIONS 121–24 (3d ed. 2018).

There can be no doubt that the legal error here was “plain”
and “clear.” Sullivan, 451 F.3d at 892. It is well-settled that the
guilty plea or conviction of a member of a conspiracy may not
be introduced as substantive evidence of another defendant’s
guilt. McGill, 815 F.3d at 897. But see id. at 898 (describing
two “limited” exceptions to the rule). This rule safeguards the
criminal defendant’s right to a fair trial by preventing the jury
from “infer[ring] that the defendant on trial is more likely to be
guilty” simply because the defendant’s co-conspirator was
convicted. United States v. Johnson, 26 F.3d 669, 677 (7th Cir.
1994). It also curbs the jury’s temptation to find the defendant
guilty “based upon the disposition of the charges against the
co-defendants, rather than upon an individual assessment of the
remaining defendant’s personal culpability.” United States v.
Blevins, 960 F.2d 1252, 1260 (4th Cir. 1992). The “reasons for
preclusion [of such evidence] compound when a nontestifying
codefendant’s guilty plea is introduced because the defendant
on trial lacks the ability to cross-examine the codefendant who
entered the plea and to probe his motivations. That, in turn,
undercuts the defendant’s right to have the jury’s verdict based
only on evidence presented in open court.” McGill, 815 F.3d at
898. There can be no doubt here that the reference to Jones’
guilty plea was a serious error.
 26
On appeal, the Government does not attempt to defend the
prosecutor’s conduct. And during oral argument, the
Government conceded its error. See Oral Arg. Recording at
17:22–18:20. However, the Government argues, and we agree,
that Sitzmann’s claim fails because he has not shown that the
reference to Jones’ guilty plea “affected [his] substantial
rights” by prejudicing the outcome of the trial. Sullivan, 451
F.3d at 892; Appellee’s Br. 55–58.

In determining whether a plain error is prejudicial, we
“typically look[] to the centrality of the issue affected, the
severity of the prosecutor’s misconduct, the steps taken to
mitigate the misconduct, and the closeness of the case.” United
States v. Venable, 269 F.3d 1086, 1091 (D.C. Cir. 2001). We
were very troubled by the prosecutor’s conduct in this case.
However, on the record before us, we cannot find that the
reference to Jones’ guilty plea was sufficient to demonstrate a
reasonable probability that but for the error the outcome would
have been different. See Molina-Martinez v. United States, 136
S. Ct. 1338, 1343 (2016). The Government presented ample
evidence that Sitzmann entered the conspiracy and, along with
his co-conspirators, engaged in overt acts in furtherance of the
conspiracy. Moreover, because there was “evidence already
before the jury that Mr. Jones attempted to obtain cocaine in
March 2004 with the intent to distribute it,” and because “the
[G]overnment did not mention Jones’ guilty plea again or
attempt to connect his plea . . . with Mr. Sitzmann’s guilt,”
Sitzmann IV, 74 F.Supp. 3d at 128, Sitzmann cannot show plain
error.

“[I]nformed by the entire record,” we cannot say that “the
probability of a different result is sufficient to undermine
confidence in the outcome of the proceeding.” Dominguez
Benitez, 542 U.S. at 83. Therefore, we find that the reference
 27
to Jones’ guilty plea, although serious, does not constitute plain
error.

F. Ineffective Assistance of Counsel

Finally, Sitzmann contends that his trial counsel provided
ineffective assistance in six different respects. Sitzmann raised
none of these claims in the district court. Yet, on appeal, he
does not seek an evidentiary remand to further develop the
record. To the contrary, he affirmatively argues that “a remand
is not necessary,” because his particular claims “are based on
events in the trial record.” Appellant’s Reply Br. 24. We agree
with Sitzmann that a remand is unnecessary.

“When advancing an ineffective assistance argument on
direct appeal, an appellant must present ‘factual allegations
that, if true, would establish a violation of his Sixth
Amendment right to counsel.’” United States v. Mohammed,
693 F.3d 192, 202 (D.C. Cir. 2012) (quoting United States v.
Poston, 902 F.2d 90, 99 n.9 (D.C. Cir. 1990)) (brackets
omitted). To establish such a violation, the defendant must
show both that “counsel’s performance was deficient” and that
“the deficient performance prejudiced the defense.” Strickland
v. Washington, 466 U.S. 668, 687 (1984). Each of these
elements is substantial. Deficient performance requires “errors
so serious that counsel was not functioning as the ‘counsel’
guaranteed the defendant by the Sixth Amendment,” which
means that “counsel’s representation fell below an objective
standard of reasonableness.” Id. at 687–88; see also id. at 689
(“Judicial scrutiny of counsel’s performance must be highly
deferential.”). Prejudice means “that counsel’s errors were so
serious as to deprive the defendant of a fair trial, a trial whose
result is reliable.” Id. at 687.
 28
“[B]ecause ineffective assistance claims typically require
factual development,” United States v. Haight, No. 16-3123,
__ F.3d __, slip op. at 10 (D.C. Cir. June 22, 2018), our
ordinary practice, when presented with a “colorable” claim, is
to “remand for an evidentiary hearing,” Mohammed, 693 F.3d
at 202. However, we do not “reflexively remand.” Id. (quoting
United States v. Harris, 491 F.3d 440, 443 (D.C. Cir. 2003)).
Two years ago, we reaffirmed what Justice Thomas had
explained more than a quarter-century earlier: this Court has
“never held that any claim of ineffective assistance of counsel,
no matter how conclusory or meritless, automatically entitles a
party to an evidentiary remand.” United States v. McGill, 815
F.3d 846, 945 (D.C. Cir. 2016) (quoting Poston, 902 F.2d at 99
n.9). To the contrary, we have rejected newly-raised
ineffective-assistance claims—without remanding—where the
record clearly shows that the challenged attorney actions were
not deficient, see, e.g., United States v. Weaver, 281 F.3d 228,
234 (D.C. Cir. 2002); Harris, 491 F.3d at 445; where the record
clearly shows that the defendant was not prejudiced, see, e.g.,
United States v. Grey, No. 14-3003, __ F.3d __, 2018 WL
2749723, at *5 (D.C. Cir. June 8, 2018); United States v. Udo,
795 F.3d 24, 30–33 (D.C. Cir. 2015); United States v. Williams,
488 F.3d 1004, 1010 (D.C. Cir. 2007); United States v. Wood,
879 F.2d 927, 933–34 (D.C. Cir. 1989); and where the
ineffective-assistance allegations are “presented in such a
vague and conclusory fashion that they do not raise any
colorable claim of error or prejudice,” McGill, 815 F.3d at 945;
see Poston, 902 F.2d at 98.

Here, we decline to remand because Sitzmann “has not
raised any substantial issue that requires a determination of
facts.” Poston, 902 F.2d at 99 n.9. Because each of his claims
turns on “events in the trial record,” Appellant’s Reply Br. 24,
there is no need for further factual development. Moreover,
each of the claims is either conclusory, insubstantial, or both.
 29

First, Sitzmann alleges that his trial counsel failed to
object to unspecified hearsay testimony by Officer Buss.
Without identifying any specific statements in his opening
brief, or explaining why the statements referenced in his reply
brief are hearsay, Sitzmann has not made a colorable showing
of deficient performance. As for prejudice, Sitzmann contends
in his reply brief that Buss’ testimony was “the only evidence”
that linked Sitzmann to his co-conspirator George Jones.
Appellant’s Reply Br. 23. But, as the district court explained
at length, the Government presented “[o]verwhelming
evidence” at trial “that Mr. Jones long served as Mr.
Sitzmann’s co-conspirator.” Sitzmann IV, 74 F. Supp. 3d at
126; see id. 104–09, 126–27. That evidence included taped
conversations between Jones and a government informant
indicating that “Jones was working on an ongoing basis with
Sitzmann to smuggle drugs” when Sitzmann was arrested in
France. Id. at 105. It also included drug-smuggling
paraphernalia belonging to Sitzmann and recovered from
Jones’ home after Jones attempted to use some of it to smuggle
cocaine. See id. at 109, 126. In addition, as we have already
indicated, the Government presented evidence that Sitzmann
and Jones were both present when cocaine was “shined” and
“cut” in Jones’ house in the early 2000s. Supra, at 4. Given
the extensive evidence linking Sitzmann to Jones (and
establishing guilt on the conspiracy charge), Sitzmann has
raised no colorable claim of prejudice from Officer Buss’
testimony. See, e.g., Grey, 2018 WL 2749723, at *5; Udo, 795
F.3d at 30.

Second, Sitzmann complains that trial counsel failed to
object when a federal agent read from a French-to-English
translation that he had used to refresh his recollection of
admissions made by Sitzmann to federal agents in France in
2008. However, the agent was present at that interview, and he
 30
testified at trial that the document was accurate and refreshed
his recollection. Trial Tr. (5/10/2012) at 16–23, 50, reprinted
in S.A. 1235–42, 1253. The agent would have testified to the
substance of Sitzmann’s admissions regardless, so counsel’s
failure to object was certainly not prejudicial—nor even
deficient, as counsel acted reasonably to “avoid emphasizing
damaging information by objecting to the form of otherwise
admissible testimony.” United States v. Bosch, 914 F.2d 1239,
1247 (9th Cir. 1990).

The entirety of Sitzmann’s third ineffective-assistance
allegation consists of the following citation-free sentence:
“Trial counsel deliberately or with gross negligence opened the
door for the government to introduce otherwise inadmissible
evidence harmful to his client’s defense.” Appellant’s Br. 60.
This is far too conclusory to establish a colorable claim.

Fourth, Sitzmann complains that trial counsel stipulated to
his two prior drug convictions. However, counsel stipulated
only to the fact of the convictions, and did so only after the
district court had held—over defense counsel’s vigorous
objection—that the facts and circumstances surrounding the
convictions were admissible to show Sitzmann’s knowledge,
intent, and ability to engage in a high-volume international
drug smuggling operation. United States v. Sitzmann
(Sitzmann III), 856 F. Supp. 2d 55, 58–66 (D.D.C. 2012). After
that ruling, it was neither deficient performance nor prejudicial
for counsel to build some credibility by not contesting the
uncontestable.

Fifth, Sitzmann complains that trial counsel failed to
object to expert testimony about drug-smuggling methods in
Colombia and Canada, where Sitzmann had been operating.
This Court, however, routinely has upheld the “well-
established practice” of admitting expert testimony about drug
 31
trafficking. United States v. Mejia, 448 F.3d 436, 448 (2006).
Counsel’s failure to raise a meritless evidentiary objection was
not deficient performance.

Sixth, Sitzmann complains that trial counsel failed to seek
evidence of prior convictions of co-conspirators Jerry Harvey,
Gary Paulson, and John Sager, all of whom testified against
him. But these witnesses admitted at length their own past
convictions and drug smuggling on direct examination. See
Trial Tr. (4/19/2012) at 70–88, reprinted in S.A. 841–59; Trial
Tr. (4/23/2012) at 4–37, reprinted in S.A. 916–49; Trial Tr.
(4/24/2012) at 4–9, reprinted in S.A. 1006–11. Sitzmann’s
counsel was not deficient in failing to pursue this further, and
his failure to do so was not prejudicial.

Our dissenting colleague notes a seventh, venue-related
allegation of ineffective assistance. Dissent at 1. However,
that claim was raised only in Sitzmann’s reply brief. Compare
Appellant’s Br. 57–62, with Appellant’s Reply Br. 22–25.
Because “[i]t is generally understood that arguments first raised
in a reply brief are untimely,” United States v. Hunter, 786 F.3d
1006, 1011 (D.C. Cir. 2015), we disregard that claim.

Finally, stepping back from the particulars of these
individual allegations, we note that the Government’s overall
case was compelling. Sitzmann himself discussed drug
smuggling on recorded phone conversations played to the jury.
Gov’t Ex. 43, reproduced in S.A. 684. Several of Sitzmann’s
co-conspirators testified against him. Supra, at 3. A
government agent recounted Sitzmann’s extensive
admissions—including to several operations that involved
smuggling cocaine to or through the United States. Trial Tr.
(5/10/2012) at 30, 44–48, reprinted in S.A. 1244, 1248–52.
Physical and documentary evidence revealed that Sitzmann
owned airplanes used to transport drugs, as well as SUVs
 32
outfitted with secret compartments. Gov’t Exs. 400a, 400b,
400n, 400x, 400z, 400hh, 400jj, 430, 431, 446, 1007a–1007f,
1008, reprinted in S.A. 592–99, 687–702; Trial Tr. (4/24/2012)
at 34–40, reprinted in 1020–26. Together, this overwhelming
evidence of guilt forecloses any colorable inference of
prejudice under Strickland.

Because Sitzmann has raised no colorable claim of
ineffective assistance, we affirm on this point without
remanding.

III. CONCLUSION

For the foregoing reasons, we affirm Sitzmann’s
conviction.

So ordered.
 1
KATSAS, Circuit Judge, concurring: The Court rejects
Sitzmann’s ineffective-assistance claims on the ground that
they are not sufficiently colorable, as first raised on appeal, to
justify a remand. I join that analysis, but write separately to
highlight a second reason why we should reject Sitzmann’s
claims—because they were not preserved below.

The usual rule, of course, is that parties must raise issues
in the district court in order to preserve them for appeal. See,
e.g., United States v. Gewin, 759 F.3d 72, 78 (D.C. Cir. 2014).
We have relaxed that rule for claims alleging ineffective
assistance of trial counsel, but only because “trial counsel
cannot be expected to argue his own ineffectiveness,” United
States v. Weaver, 281 F.3d 228, 234 (D.C. Cir. 2002), or to
develop the factual record necessary to support such a claim.
Thus, when new counsel appears on appeal, he may raise
ineffective assistance of trial counsel for the first time—and
secure a remand if the claim is colorable and needs further
factual development. See, e.g., United States v. Haight, No.
16-3123, __ F.3d __, slip op. at 10 (D.C. Cir. June 22, 2018).
However, when new counsel appears in the district court and
has a fair opportunity to challenge the effectiveness of prior
counsel, there is no need—and no justification—for applying
any exception to ordinary preservation rules.

United States v. Debango, 780 F.2d 81 (D.C. Cir. 1986),
proves this point. In Debango, defense counsel appointed post-
verdict unsuccessfully argued, in a motion for new trial, that
trial counsel had been ineffective. See id. at 84 n.1. On appeal,
the defendant again claimed that trial counsel had been
ineffective. On one of the four claims, we held that trial
counsel had not rendered deficient performance. See id. at 85
n.2. On a second, we affirmed the district court’s finding of no
prejudice. See id. at 85. Then, we held that the factual record
was insufficiently developed to support the third and fourth
 2
claims. With regard to the allegedly ineffective failure to
locate and interview a potentially helpful witness, we
concluded: “Because appellant failed to introduce evidence in
the District Court, in the new trial motion, of what [the witness]
would have said had trial counsel located him, the record
simply fails to support his claim that he was prejudiced by
counsel’s failure to locate [the witness].” Id. at 86. Finally,
with regard to the final claim that defense counsel had “slept
through much of the trial,” we held that “appellant is barred
from pursuing the claim in this court because he failed to
submit any evidence on the issue in the District Court to
support his motion for a new trial.” Id.

Critically, Debango refused to remand to permit additional
factual development on the final two claims. We stated the
governing rule: “when counsel changes prior to appeal and
when there is still a reasonable opportunity to challenge a
conviction in the District Court, a criminal defendant bears the
usual obligation to raise issues and introduce evidence in the
trial court in order to preserve his claims on appeal.” Id. at 86.
We then applied that rule: “We therefore decline to remand the
case to allow appellant to substantiate his contentions
concerning [the witness] and the sleeping charge.” Id. at 86
n.6. Finally, we distinguished cases where we had remanded
ineffective-assistance claims “because counsel had changed
only on appeal,” as “[t]he defendants in those cases had no
opportunity to present evidence in the District Court on their
ineffective assistance claims.” Id.

The dissent quotes a statement in United States v. Cyrus,
890 F.2d 1245, 1247 (D.C. Cir. 1989), that Debango “stands
only for the proposition” that the defendant, if he chooses to
raise any ineffective-assistance claims in a motion for new trial,
“must raise all” of those claims together. However, that
statement does not control cases where new counsel enters in
 3
time to handle the new-trial motion, for Cyrus is not such a
case. See Landgraf v. USI Film Products, 511 U.S. 244, 265
(1994) (“general expressions, in every opinion, are to be taken
in connection with the case in which those expressions are
used” (quoting Cohens v. Virginia, 19 U.S. (6 Wheat.) 264, 399
(1821) (Marshall, C.J.))). To the contrary, the new counsel in
Cyrus entered the case only on appeal. See No. 88-3156 (D.C.
Cir. Jan. 6, 1989) (order appointing appellate counsel following
notice of appeal). Moreover, in stressing the need for a remand,
Cyrus relied centrally on United States v. DeCoster, 487 F.2d
1197 (D.C. Cir. 1973), and United States v. Hinton, 631 F.2d
769 (D.C. Cir. 1980)—the very precedents that Debango had
distinguished as ones where “counsel had changed only on
appeal.” 780 F.2d at 86 n.6. Indeed, Cyrus itself supports the
distinction, in explaining that, if possible, “equity and judicial
economy require that a criminal defendant build an evidentiary
record on his ineffective-assistance claims before appealing his
conviction on that basis.” 890 F.2d at 1247 (emphasis added).

Furthermore, less than five months before Cyrus was
decided, in an opinion joined by its author, this Court
confirmed that Debango still was good law and meant what it
said: “The law in this circuit is that a claim of ineffective
assistance must be made in a motion for a new trial ‘when
counsel changes prior to appeal and when there is still a
reasonable opportunity to challenge a conviction in the District
Court.’” United States v. Wood, 879 F.2d 927, 933 (D.C. Cir.
1989) (quoting Debango, 780 F.2d at 86).

Finally, even if Cyrus were broadly read to conflict with
Debango, then Debango still would govern as the earlier
decision. See, e.g., Sierra Club v. Jackson, 648 F.3d 848, 854
(D.C. Cir. 2011) (“when a decision of one panel is inconsistent
with the decision of a prior panel, the norm is that the later
 4
decision, being in violation of th[e] fixed law [that panels must
follow circuit precedent], cannot prevail”).

The post-Cyrus “slew of cases” invoked by the dissent,
Post, at 4, which remand colorable ineffective-assistance
claims raised for the first time on appeal, does not change the
analysis. Not one of those cases discusses the special
circumstances where replacement counsel is secured in time to
raise the ineffective-assistance-of-trial-counsel claim in a
motion for new trial. 1

Finally, the dissent quotes at length from Massaro v.
United States, 538 U.S. 500 (2003), and the concurrence in
United States v. Mohammed, 693 F.3d 192 (D.C. Cir. 2012), to
explain that the courts of appeals “are usually not well-
equipped to address ineffective-assistance claims in the first
instance.” Post, at 4. The dissent is correct on that point, which
is precisely why trial counsel should be required, when fairly
possible, to tee up in a new-trial motion any claims that
predecessor counsel had rendered ineffective assistance.

In this case, there was ample opportunity for replacement
counsel to do so. Sitzmann’s ineffective-assistance claims all
challenge decisions made by his trial counsel on or before the
May 21, 2012 jury verdict. Sitzmann’s current counsel was
appointed June 14, 2012. He sought and received seven
extensions of time to file post-trial motions. On January 23,

1
The closest any of them comes to this is United States v. McGill,
815 F.3d 846, 934 (D.C. Cir. 2016), which observed in passing that
one of the defendants, Kenneth Simmons, had received new counsel
prior to sentencing. However, that change was made after Simmons’
motion for a new trial had been resolved. See United States v.
Simmons, Crim. No. 00-157-12 (D.D.C.), ECF Nos. 2282 (order of
May 3, 2006 denying new-trial motion) & 2285 (order of May 8,
2006 appointing new counsel for sentencing and appeal).
 5
2013—more than seven months after his appointment—he
filed the new-trial motion. Yet, that motion does not raise any
of the ineffective-assistance claims that Sitzmann now seeks to
pursue on appeal. Under Debango, that is more than enough to
constitute a forfeiture.

One final wrinkle involves Sitzmann’s own unsuccessful
attempts to raise ineffective-assistance claims in the district
court in a pro se capacity. However, in a ruling not challenged
on appeal, the district court held that Sitzmann had forfeited his
right to proceed pro se through a pattern—spanning many
years and many different lawyers—of inconsistent statements
and filings made “as a tactic for delay, disruption, and
manipulation of the legal system.” United States v. Sitzmann
(Sitzmann I), 826 F. Supp. 2d 73, 84 (D.D.C. 2011). As the
court summed up:

Throughout this case, Mr. Sitzmann has demonstrated
that his interest is not truly in representing himself.
He has engaged in a pattern of vacillation, delay, and
manipulation, embracing new counsel until the case is
ready to go forward, then manufacturing conflicts and
besmirching his attorneys’ characters in an attempt to
replace them and further delay his case. He has filed
a series of contradictory and inconsistent motions
over the last several months that mirror his practice
over the last three years of reversing and vacillating in
his requests to proceed with and without counsel.

Id. at 93. We should not reward those tactics now, by treating
Sitzmann as if he were pro se.

Sitzmann’s current counsel had ample opportunity to
claim in his new-trial motion that trial counsel had been
ineffective, yet he failed to do so. Accordingly, I would hold
 6
that the ineffective-assistance claims are unpreserved as well
as meritless.
 EDWARDS, Senior Circuit Judge, dissenting: For the
reasons indicated below, I dissent from the court’s decision and
judgment in Part II.F.

Sitzmann’s final contention in this case is that his trial
attorney provided ineffective assistance of counsel. He raises
several grounds in support of his ineffective-assistance claim,
including that his trial attorney allegedly (1) made no “effort to
limit . . . hearsay statements made by retired police officer
Buss”; (2) failed to object when a government witness, Agent
John Armbruster, read from a transcript of a conversation
Sitzmann had with federal officials in 2008; (3) “opened the
door” for the prosecution to use “inadmissible evidence
harmful to” Sitzmann’s defense; (4) stipulated to the admission
of Sitzmann’s prior convictions under Federal Rule of
Evidence 404(b); (5) failed to object to certain expert
testimony; (6) failed to impeach Sitzmann’s co-conspirators
with their prior convictions or obtain documents “relating to
their service as informants”; and (7) consented to the
prosecution’s “positions on venue” at trial. Appellant’s Br. 58–
62; Appellant’s Reply Br. 22–25. Sitzmann did not raise these
allegations in the trial court proceedings. However, he asks this
court to resolve these claims in the first instance because,
according to Sitzmann, the trial record conclusively establishes
his entitlement to relief. See Appellant’s Reply Br. 24.

I disagree with the majority’s determination that this court
should dispose of Sitzmann’s ineffective assistance claims in
the first instance. As we routinely do in matters of this sort, I
believe that we should remand Sitzmann’s claims to the
District Court for its consideration. The majority’s refusal to
remand is, in my view, an unfortunate departure from the law
of the circuit.

“When advancing an ineffective assistance argument on
direct appeal, an appellant must present ‘factual allegations
that, if true, would establish a violation of his Sixth
 2
Amendment right to counsel.’” United States v. Mohammed,
693 F.3d 192, 202 (D.C. Cir. 2012) (citation omitted). The
allegations must show that his “counsel’s performance was
deficient” and that “the deficient performance prejudiced the
defense.” Strickland v. Washington, 466 U.S. 668, 687 (1984).
Our precedent makes clear that when a defendant “raises a
‘colorable and previously unexplored’ ineffective assistance
claim on appeal,” our typical practice is to remand the claim,
“unless the ‘record alone conclusively shows that the defendant
either is or is not entitled to relief.’” United States v. Bell, 708
F.3d 223, 225 (D.C. Cir. 2013) (citations omitted).

The Government argues that “the trial record ‘conclusively
shows’ that counsel was not deficient and that Sitzmann was
not prejudiced.” Appellee’s Br. 67 (quoting United States v.
Rashad, 331 F.3d 908, 910 (D.C. Cir. 2003)). Citing this
court’s decision in United States v. Debango, 780 F.2d 81
(D.C. Cir. 1986), the Government also maintains that
Sitzmann’s ineffective-assistance claim should not be
remanded because he failed to “allege ineffectiveness” in his
motion for new trial. Appellee’s Br. 68. I disagree with the
Government on both points. I also note that the Government’s
reliance on Debango is misguided and reflects a surprising
defiance of the law of this circuit.

In Debango, the appellant challenged his conviction for
conspiracy to distribute controlled substances on several
grounds, including ineffective assistance of counsel. On
appeal, the appellant raised four arguments in support of his
claim that his trial attorney provided inadequate representation.
780 F.2d at 85. However, in his motion for new trial – which
he filed with the assistance of new, post-trial counsel – the
appellant had raised only three of his four arguments. Id. at 84
n.1, 85–86. The court considered the merits of the three
preserved claims, but “decline[d] to remand the case to allow
 3
[the] appellant to substantiate his contentions concerning . . .
the [fourth allegation].” Id. at 86 n.6. The court noted that
“when counsel changes prior to appeal and when there is still a
reasonable opportunity to challenge a conviction in the District
Court, a criminal defendant bears the usual obligation to raise
issues and introduce evidence in the trial court in order to
preserve his claims on appeal.” Id. at 86.

Three years after Debango was decided, the court
“clarif[ied] this circuit’s law on the handling of [S]ixth
[A]mendment claims raised without a record.” United States v.
Cyrus, 890 F.2d 1245, 1247 (D.C. Cir. 1989). We explained
that:

[W]here a party has not sought a new trial or
collaterally attacked his conviction on the grounds of
ineffective representation, this court must remand.
The only exception to that rule is where a defendant
has already raised other ineffective counsel claims in
an evidentiary hearing. United States v. Debango,
780 F.2d 81 (1986). In those cases we have decided
an ineffective representation claim without
remanding for hearings on a new trial motion.
Debango, then, stands only for the proposition that
the defendant must raise all ineffective counsel claims
in the proceeding for new trial.

Our precedent should be clear. Where a party
fails to create a record on the issue of the
ineffectiveness of counsel, this court must remand the
case for such proceedings.

Id. (emphasis added); see also United States v. Fennell, 53 F.3d
1296, 1304 (D.C. Cir. 1995), rev’d on other grounds on reh’g,
77 F.3d 510 (D.C. Cir. 1996) (confirming that “[w]hen an
 4
appellant has not raised a claim of ineffective assistance of
counsel before the district court, either in a motion for a new
trial, pursuant to Federal Rule of Criminal Procedure 33, or in
a collateral attack, under 28 U.S.C. § 2255, our general practice
is to remand the claim for an evidentiary hearing”).

In a slew of cases in the nearly twenty years following
Cyrus and Fennell, this court has consistently followed a
practice of remanding “colorable” ineffective-assistance
claims to the District Court for resolution in the first instance,
unless the “‘trial record alone conclusively shows’ that the
defendant either is or is not entitled to relief.” Rashad, 331 F.3d
at 910 (citation omitted); see also United States v. James, 719
F. App’x 17 (D.C. Cir. 2018); United States v. Eshetu, 863 F.3d
946, 957–58 (D.C. Cir. 2017); McGill, 815 F.3d at 942;
Mohammed, 693 F.3d at 202; United States v. Laureys, 653
F.3d 27, 34 (D.C. Cir. 2011) (per curiam). And we have
followed this approach even when the defendant failed to raise
ineffective-assistance claims in a motion for new trial. See, e.g.,
Mohammed, 693 F.3d 192. As the court made clear in Fennell,
“[w]hen an appellant has not raised a claim of ineffective
assistance of counsel before the district court, either in a motion
for a new trial . . . or in a collateral attack, . . . our general
practice is to remand the claim for an evidentiary hearing.” 53
F.3d at 1304.

The law of the circuit reflects an understanding on the part
of the members of the court that we are usually not well-
equipped to address ineffective-assistance claims in the first
instance given their “fact-intensive nature.” Rashad, 331 F.3d
at 909. As the Supreme Court has explained:

When an ineffective-assistance claim is brought on
direct appeal, . . . the court must proceed on a trial
record not developed precisely for the object of
 5
litigating or preserving the claim and thus often
incomplete or inadequate for this purpose. . . . The
evidence introduced at trial . . . will be devoted to
issues of guilt or innocence, and the resulting record
in many cases will not disclose the facts necessary to
decide either prong of the Strickland analysis. If the
alleged error is one of commission, the record may
reflect the action taken by counsel but not the reasons
for it. . . . Without additional factual development,
moreover, an appellate court may not be able to
ascertain whether the alleged error was prejudicial.

Under the rule we adopt today, ineffective-
assistance claims ordinarily will be litigated in the
first instance in the district court, the forum best suited
to developing the facts necessary to determining the
adequacy of representation during an entire trial. The
court may take testimony from witnesses for the
defendant and the prosecution and from the counsel
alleged to have rendered the deficient performance.

Massaro v. United States, 538 U.S. 500, 504–05 (2003). In
other words:

We have acknowledged that the court of appeals can
resolve an ineffective-assistance issue in the first
instance when the record “conclusively” shows that
the defendant either is or is not entitled to relief. But
given the fact-bound nature of ineffective-assistance
claims, that exception arises only rarely. If there is
any doubt or difficulty, if it is not obvious from the
face of the record whether relief is warranted, the
appropriate course is simply to remand.
 6
Mohammed, 693 F.3d at 206 (Kavanaugh, J., concurring in part
and concurring in the judgment).

Turning to the facts of this case, the record suggests that
Sitzmann attempted to raise a claim of ineffective assistance in
the post-trial proceedings. In a pro se letter to the court filed on
June 12, 2014, Sitzmann explained that he had filed a pro se
motion in November 2012 alleging ineffective assistance of
counsel and had repeatedly asked his attorney for an update on
the status of that motion, but that – against Sitzmann’s wishes
– his attorney had withdrawn the motion. See Letter to Court
Requesting Hearing Date, United States v. Sitzmann, No. 1:08-
cr-242 (D.D.C. June 12, 2014) (Dkt. No. 246). Sitzmann
requested that the court reconsider his motion and schedule a
hearing on his claims. Id. No such hearing was held.

On appeal, Sitzmann raises seven separate bases for his
ineffective assistance claim. If true, the factual allegations
underlying his claims may “establish a violation of his Sixth
Amendment right to counsel.” Mohammed, 693 F.3d at 202
(citation omitted). However, because the record does not
conclusively show whether Sitzmann is or is not entitled to
relief, I would follow our “typical practice” of remanding his
ineffective-assistance claims to the District Court for
consideration in the first instance. United States v. Knight, 824
F.3d 1105, 1112 (D.C. Cir. 2016). Accordingly, I dissent from
Part II.F.