USCA11 Case: 23-12208 Document: 28-1 Date Filed: 07/05/2024 Page: 1 of 11

[DO NOT PUBLISH]

In the
United States Court of Appeals
For the Eleventh Circuit

____________________

No. 23-12208
Non-Argument Calendar
____________________

UNITED STATES OF AMERICA,

Plaintiff-Appellee,
versus
SAMMIE LEE SIAS,

Defendant-Appellant.

____________________

Appeal from the United States District Court

for the Southern District of Georgia
D.C. Docket No. 1:21-cr-00048-JRH-BKE-1
____________________
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2 Opinion of the Court 23-12208

Before JORDAN, LAGOA, and BRASHER, Circuit Judges.

PER CURIAM:
Sammie Sias appeals his convictions for destroying, altering,
or falsifying records in a federal investigation, in violation of
18 U.S.C. § 1519, and for making a false statement to an agent of
the United States, in violation of 18 U.S.C. § 1001(a)(2). He presents
three arguments on appeal. First, he argues that the district court
erred in denying his motion for judgment of acquittal of the Section
1519 conviction because the government failed to prove that his
deletion of electronic files satisfied the element of intentional de-
struction. Second, Sias argues that the district court erred in deny-
ing his motion for judgment of acquittal of the Section 1001 con-
viction because the government failed to prove that his statement
to an investigating agent that he had turned over all electronic files
in his possession met the element of falsity. Third, Sias argues that
the district court erred in declining to address his claim for ineffec-
tive assistance of counsel as part of his motion for a new trial.
Because the district court did not err in denying his motions
for judgment of acquittal or in declining to address his claim for
ineffective assistance of counsel, we affirm.
I.

Sammie Sias served as president of the Sandridge Commu-

nity Association, which maintained the Jamestown Community
Center in Augusta, Georgia. Beginning in March 2014, the county
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23-12208 Opinion of the Court 3

disbursed $150,000 in Special Purpose Local Option Sales Tax

(“SPLOST”) funds to Sandridge for the improvement of the com-
munity center. Dr. Jacqueline Fason eventually succeeded Sias as
the Sandridge president in 2019.
In July of that year, the FBI began investigating whether Sias
misused the SPLOST funds for his personal benefit. On July 30, FBI
special agent Charles McKee served Dr. Fason a subpoena for San-
dridge’s financial records. Because she knew Sias had maintained
Sandridge’s financial and organization documents on his laptop,
Dr. Fason called Sias to read the subpoena aloud and request the
relevant files, all while still in agent McKee’s presence. At 5:50 p.m.
on August 5, McKee served Sias with another subpoena for San-
dridge’s bank records.
A few days later, and after reviewing the documents Sias had
provided to Dr. Fason in response to the subpoena, McKee deter-
mined that they were incomplete and inadequate. Accordingly, on
August 9, the FBI executed a search warrant at Sias’s residence for
documents and electronic items related to the potential misuse of
SPLOST funds. In an audio-recorded conversation after the search,
McKee asked Sias whether the FBI now possessed all the relevant
files and electronic devices, to which Sias answered in the affirma-
tive.
McKee then began searching Sias’s laptop. He noticed that a
folder named “SPLOST VI” was last modified on August 5 at 6:05
p.m.—fifteen minutes after Sias was served with the subpoena.
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4 Opinion of the Court 23-12208

And although McKee could see those documents had been ac-
cessed, he was unable to find the files on the device.
McKee then provided the laptop to Charles McStotts, an ex-
aminer with the FBI’s computer analysis team, to locate files Sias
deleted after he was served with the subpoena but before the FBI
seized the laptop. McStotts testified at trial that Microsoft Win-
dows automatically creates a Volume Shadow Copy (“VSC”) to
back up files even if they are deleted. McStotts used AccessData’s
Forensic Tool Kit (“FTK”) software to view files in the VSC, where
he located deleted items relevant to the community center’s finan-
cial records. According to his review of the laptop, a thumb drive—
which the FBI had not received—had last been connected to the
laptop at 5:56 p.m. on August 5. Agent McKee testified that he
spent several weeks combing through the over 7,400 deleted files
recovered in the VSC, some of which had been rendered unintelli-
gible by symbols and letters. At the conclusion of his review,
McKee located 237 potentially relevant deleted files.
After a jury trial, Sias was convicted of one count of destroy-
ing, altering, or falsifying records in a federal investigation and one
count of making a false statement to an agent of the United States
for his August 9 statement to McKee that the FBI already possessed
all relevant financial records. The district court denied Sias’s
Rule 29 motions for a judgment of acquittal after the government
rested its case-in-chief and after the jury verdict. See Fed. R. Crim.
P. 29(c).
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23-12208 Opinion of the Court 5

After the verdict, Sias filed a pro se motion requesting new

counsel, which was granted. He subsequently filed an ex parte affi-
davit alleging that in May 2020—approximately nine months after
the subpoena—he provided his former counsel with a thumb drive
containing all the deleted documents with instructions to turn it
over to the FBI, and that his former counsel failed to do so, result-
ing in the criminal charges. Sias argued that counsel’s deficient per-
formance prejudiced him because he may not have been indicted
but for the failure to turn over the thumb drive. Because the district
court found that a Rule 33 motion for a new trial was an improper
vehicle for raising an ineffective assistance of counsel claim, it de-
nied Sias’s motion.
This appeal followed.
II.

We review a district court’s denial of a motion for judgment

of acquittal de novo. United States v. Broughton, 689 F.3d 1260, 1276
(11th Cir. 2012). We apply the same standard used in reviewing the
sufficiency of the evidence, meaning that we view the facts and
draw all inferences in the light most favorable to the government.
United States v. Descent, 292 F.3d 703, 706 (11th Cir. 2002).
A district court’s ruling on a motion for a new trial is re-
viewed for an abuse of discretion. United States v. Brester, 786 F.3d
1335, 1338 (11th Cir. 2015). Under this standard, we may reverse
the denial only if the district court made a clear error of judgment
or applied the wrong legal standard. United States v. White, 590 F.3d
1210, 1214 (11th Cir. 2009).
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6 Opinion of the Court 23-12208

III.

We will first consider Sias’s arguments regarding his mo-

tions for judgments of acquittal as to both convictions. We will
then turn to consider his claim for ineffective assistance of counsel.
A.

To affirm the denial of a motion for judgment of acquittal,

we “need only determine that a reasonable fact-finder could con-
clude that the evidence established the defendant’s guilt beyond a
reasonable doubt.” Descent, 292 F.3d at 706 (citation omitted). We
consider “all evidence presented at trial when reviewing a denial of
a Rule 29 motion made at the close of a defendant’s case.” United
States v. Thomas, 987 F.2d 697, 705 (11th Cir. 1993).
Sias first argues that under the Ninth Circuit’s decision in
United States v. Katakis, 800 F.3d 1017 (9th Cir. 2015), the deletion
of a computer file is not actual destruction under Section 1519 if
the destruction can be undone without the use of forensic tools.
Because McStott’s testimony established that Sias’s deleted files
could have been recovered using the laptop’s VSC, the FBI’s deci-
sion to use the forensic software to locate the files did not indicate
a sufficient degree of concealment necessary to support a convic-
tion.
To find a defendant guilty of violating 18 U.S.C. § 1519, a
jury must be satisfied beyond a reasonable doubt that the defend-
ant: (1) knowingly (2) altered, destroyed, mutilated, concealed, or
covered up a record or document (3) with the intent to impede,
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23-12208 Opinion of the Court 7

obstruct, or influence a federal investigation. See United States v.

Hunt, 526 F.3d 739, 743 (11th Cir. 2008).
In interpreting the conduct required to satisfy that second
element—and because we do not have a case on point—the parties
rely on the Ninth Circuit’s decision in Katakis. There, the Ninth
Circuit held that a defendant had not concealed documents within
the scope of Section 1519 when he deleted ten emails containing
incriminating evidence. 800 F.3d at 1030. For concealment to exist,
“there must be some likelihood that the item will not be found in
the course of a cursory examination (without using forensic tools)
of a defendant’s computer.” Id. Still, the Ninth Circuit “empha-
size[d] the limited nature of this holding,” concluding that it was
crucial that the defendant’s actions merely moved the documents
“from one file folder to another,” enabling investigators to easily
locate and recover the documents. Id.
We need not decide whether to adopt the Ninth Circuit’s
narrow reading of Section 1519 because, even under that reading,
Sias’s actions satisfied the element of actual concealment by creat-
ing “some likelihood” that the deleted files would not be found. Id.
Many of the files he scrubbed from his laptop were permanently
altered and rendered unreadable even with the use of forensic tech-
nology. True, the content of some deleted files could be recovered
through alternative, non-forensic methods like the VSC. But even
then, the recovery process was more time consuming and yielded
less valuable information: McKee was forced to spend “weeks and
weeks” sifting through the damaged recovered files for relevant
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8 Opinion of the Court 23-12208

evidence, and it was impossible for him to determine the deleted

files’ original location on the laptop. Unlike moving an email from
one folder to another easily accessed folder, Sias’s deletion of these
files was “more than merely inconvenien[t].” Id.
Because his actions damaged subpoenaed documents and
significantly delayed a federal investigation, a reasonable factfinder
could conclude that Sias altered, destroyed, mutilated, concealed,
or covered up the documents in violation of Section 1519. See De-
scent, 292 F.3d at 706. The district court therefore properly denied
Sias’s motion for judgment of acquittal as to his Section 1519 con-
viction because there was sufficient evidence in the record to sup-
port the jury verdict. See Jiminez, 564 F.3d at 1284.
B.

To find a defendant guilty of violating Section 1001(a)(2), a

jury must be satisfied beyond a reasonable doubt that the defend-
ant made a statement that was (1) false; (2) material; (3) made with
specific intent; and (4) within the jurisdiction of an agency of the
United States. United States v. Boffil-Rivera, 607 F.3d 736, 740 (11th
Cir. 2010). Falsity can be established “by a false representation or
by the concealment of a material fact.” Id. (citation omitted). Ma-
teriality requires that the statement have a “natural tendency to in-
fluence, or be capable of influencing, the decision of the deci-
sionmaking body to which it was addressed.” Id. at 741 (cleaned
up).
Sias challenges the sufficiency of his Section 1001 conviction,
arguing that his statement to McKee that Sias had produced all
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23-12208 Opinion of the Court 9

responsive material was accurate because the deleted files were still
available to the government in his laptop’s VSC. But as we con-
cluded in the previous subsection, Sias’s action of deleting the files
destroyed the content of some of those files, meaning that even
under Sias’s theory of falsity, he had withheld responsive files from
the FBI. And at the time he made the statement to McKee, Sias
knew he had already deleted the files within minutes after receiving
the subpoena, indicating his intent and belief that the deletions
would prevent the FBI from locating the documents.
The jury was free to reject Sias’s construction of the evi-
dence at trial, and it did. And based on the record before us, we
cannot say that “there is no reasonable construction of the evidence
from which the jury could have found the defendant guilty beyond
a reasonable doubt.” United States v. Ifediba, 46 F.4th 1225, 1242
(11th Cir. 2022). Because Sias’s statement to McKee was sufficient
to make out the element of falsity, the district court did not err in
denying the motion for judgment of acquittal as to his Section 1001
conviction.
C.

Upon a defendant’s motion, a district court may vacate a

judgment and order a new trial “if the interest of justice so re-
quires.” Fed. R. Crim. P. 33(a). Rule 33 contemplates “two grounds
upon which a court may grant a motion for new trial: one based
on newly discovered evidence . . . and the other based on any other
reason, typically the interest of justice.” United States v. Campa, 459
F.3d 1121, 1151 (11th Cir. 2006).
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10 Opinion of the Court 23-12208

Sias argues that his counsel was ineffective by allegedly not

giving the FBI the documents Sias placed on a thumb drive nine
months after being served the subpoena and that his counsel’s in-
effectiveness altered the outcome of the case. Had the FBI received
the thumb drive, Sias may never have been indicted.
Sias’s allegations obviously do not reveal “newly discovered
evidence,” so his argument must be that a new trial is necessary in
“the interest of justice.” Id. But a new trial would not solve the
problem Sias identifies. The asserted error occurred pre-indict-
ment. Under Sias’s theory, there never should have been any trial.
Whatever the merits of Sias’s ineffective assistance argument may
be, ordering a new trial under Rule 33 would not solve the problem
he alleges.
In addition to Rule 33 being the wrong vehicle for Sias’s ar-
gument, he also raises the ineffective assistance argument at an in-
appropriate time. Generally, we decline to “consider claims of in-
effective assistance of counsel raised on direct appeal where the dis-
trict court did not entertain the claim nor develop a factual record.”
United States v. Bender, 290 F.3d 1279, 1284 (11th Cir. 2002). On di-
rect appeal, trial records are often “incomplete or inadequate” for
litigating such claims. Massaro v. United States, 538 U.S. 500, 504–05
(2003). Because the evidence introduced at trial is devoted to issues
of the defendant’s guilt or innocence, “the facts necessary to decide
either prong of the Strickland analysis” are usually absent. Id. at 505.
We therefore usually require such claims to be raised in a collateral
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23-12208 Opinion of the Court 11

attack under 28 U.S.C. § 2255, “even if the record contains some

indication of deficiencies in counsel’s performance.” Id. at 504.
It would be inappropriate for us to consider Sias’s claim for
ineffective assistance of counsel. The district court did not entertain
the claim—a decision within that court’s discretion—and the fac-
tual record, as it currently exists, is inadequate. The only evidence
relevant to this ineffective assistance claim is Sias’s post-trial, ex
parte affidavit. We don’t yet know Sias’s former counsel’s version
of the story, which will bear on any ineffectiveness determination.
And we have no information as to whether or how the FBI would
have changed course after receiving a nine-months-late thumb
drive from Sias’s attorney, such that any prejudice analysis at this
point would be entirely speculative. We therefore decline to ad-
dress Sias’s claim for ineffective assistance of counsel on direct re-
view.
IV.

AFFIRMED.
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UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT
ELBERT PARR TUTTLE COURT OF APPEALS BUILDING
56 Forsyth Street, N.W.
Atlanta, Georgia 30303

David J. Smith For rules and forms visit

Clerk of Court www.ca11.uscourts.gov

July 05, 2024

MEMORANDUM TO COUNSEL OR PARTIES

Appeal Number: 23-12208-CC

Case Style: USA v. Sammie Sias
District Court Docket No: 1:21-cr-00048-JRH-BKE-1

Opinion Issued
Enclosed is a copy of the Court's decision issued today in this case. Judgment has been entered
today pursuant to FRAP 36. The Court's mandate will issue at a later date pursuant to FRAP
41(b).

Petitions for Rehearing

The time for filing a petition for panel rehearing is governed by 11th Cir. R. 40-3, and the time
for filing a petition for rehearing en banc is governed by 11th Cir. R. 35-2. Except as otherwise
provided by FRAP 25(a) for inmate filings, a petition for rehearing is timely only if received in
the clerk's office within the time specified in the rules. A petition for rehearing must include
a Certificate of Interested Persons and a copy of the opinion sought to be reheard. See 11th
Cir. R. 35-5(k) and 40-1.

Costs
No costs are taxed.

Bill of Costs
If costs are taxed, please use the most recent version of the Bill of Costs form available on the
Court's website at www.ca11.uscourts.gov. For more information regarding costs, see FRAP 39
and 11th Cir. R. 39-1.

Attorney's Fees
The time to file and required documentation for an application for attorney's fees and any
objection to the application are governed by 11th Cir. R. 39-2 and 39-3.

Appointed Counsel
Counsel appointed under the Criminal Justice Act (CJA) must submit a voucher claiming
compensation via the eVoucher system no later than 45 days after issuance of the mandate or
the filing of a petition for writ of certiorari. Please contact the CJA Team at (404) 335-6167 or
USCA11 Case: 23-12208 Document: 28-2 Date Filed: 07/05/2024 Page: 2 of 2

[email protected] for questions regarding CJA vouchers or the eVoucher

system.

Clerk's Office Phone Numbers

General Information: 404-335-6100 Attorney Admissions: 404-335-6122
Case Administration: 404-335-6135 Capital Cases: 404-335-6200
CM/ECF Help Desk: 404-335-6125 Cases Set for Oral Argument: 404-335-6141

OPIN-1 Ntc of Issuance of Opinion