United States District Court, D. Kansas
MEMORANDUM AND ORDER
F. MELGREN UNITED STATES DISTRICT JUDGE
1, 2018, a jury found Defendant Michael Frederiksen guilty of
one count of making a materially false, fictitious, or
fraudulent statement or representation, in violation of 18
U.S.C. § 1001(a)(2). The Court sentenced Petitioner to
one year of unsupervised probation. Petitioner now brings
this Motion to Vacate under 28 U.S.C. § 2255 (Doc. 76).
In this motion, Petitioner brings four claims of ineffective
assistance of counsel. The Court held an evidentiary hearing
on September 24, 2019. For the reasons described in detail
below, the Court grants Petitioner's motion.
Factual and Procedural Background
facts surrounding Petitioner's judgment of conviction are
as follows. On January 18, 2018, the government charged
Petitioner with two counts of violating 18 U.S.C. §
1001(a)(2). Count One alleged that, on or about February 23,
2017, Petitioner “willfully and knowingly [made] and
[caused] to be made a materially false, fictitious, and
fraudulent statement and representation” to federal
agents by saying that he did not attend and did not play at a
private poker game organized by an illegal gambling business
on February 12, 2014. Count Two charged Petitioner with
willfully and knowingly making a false statement and
representation to federal agents by saying that he had
approximately ten contacts with Johnny Steven, who was
responsible for organizing the illegal gambling
business's poker games.
made his first appearance on February 9, 2018, and he entered
his not guilty plea. The Court entered a Pretrial and
Criminal Case Management Order on February 13. In this order,
the Court required the government to file a notice of its
intent to use any 404(b) evidence under the Federal Rules of
Evidence at least 21 days prior to trial.
proceeded to trial, and trial began on April 30, 2018. The
government called five witnesses, and the defense called
three witnesses, including Petitioner. Testimony demonstrated
that the Wichita Police Department (“WPD”) and
the FBI began a gambling investigation involving illegal
poker games being played at different locations in Wichita in
2014. There was testimony from several individuals about
Petitioner playing poker at multiple locations at different
times. The primary targets of the investigation were Daven
Flax and Johnny Steven.
primary locations that were investigated in 2014 were a
business, O'Brien's, and a loft location on Douglas.
The relevant location and date at issue (for the charges
against Petitioner) was on Douglas and occurred on February
12, 2014. On this date, an undercover officer attended the
poker game. Petitioner was shown on video to have attended
trial, an FBI agent, a WPD detective, and Petitioner
testified about an interview between the agent, detective,
and Petitioner that occurred on February 23, 2017, at
Petitioner's house. WPD Detective Shae testified that
after Petitioner was admonished that lying to a federal agent
was a criminal offense that Petitioner stated that he had
gone to the Douglas location. Shae testified that Petitioner
denied playing in the game because there was an undercover
officer there. Upon cross examination, Shae stated he did not
recall mentioning a specific date to Petitioner.
Agent Ross testified that during the February 23 interview,
Petitioner told them that Steven invited Petitioner to a
poker game at O'Brien's. Ross stated that Petitioner
stated that he went to the game but left after about five
minutes because the stakes were too high, and Petitioner
stated that Steven was not there. Ross asked if Petitioner
had played at other locations and when Petitioner stated that
he had not, Ross told Petitioner that if he was lying, he
would be in trouble. Ross also told Petitioner that they may
have video of him at a Douglas location. According to Ross,
Petitioner then stated that he had gone to another location
on Douglas but did not play poker. There was no testimony
relating to a specific date because Ross stated that he never
asked Petitioner about a specific date.
government asked Ross several questions about what Petitioner
had not said during the interview. In asking about the
Douglas location, the government asked if Petitioner had told
the agents that Petitioner had gone to the Douglas location
four to eight times. Ross answered that he did not tell them
testified at trial. He stated that he played poker
approximately three or four times at the Douglas location.
Petitioner also testified about the February 23 interview. He
stated that he was not asked specific dates during the
interview. Petitioner stated that he played in the February
12 game, but neither agent specifically asked him about that
game because they did not reference dates.
Petitioner's direct examination and cross-examination,
the Court took up Petitioner's Rule 29
motion. Petitioner's counsel made a very brief
argument that the evidence did not support the charges. The
Court granted the motion as to Count Two finding that there
was insufficient evidence to support that
charge. The Court also noted that there had been a
lot of evidence irrelevant to the charges, but the Court had
tolerated it because Petitioner's counsel had not made
any objections. In addition, the Court warned the parties
that based on the extraordinary length of testimony about
matters unrelated to the charges, the Court would no longer
permit evidence unrelated to the remaining charge.
the close of all the evidence, Petitioner did not renew a
Rule 29 motion. The government gave its initial closing.
Petitioner's counsel responded with a closing argument
that was less than three minutes long.
government's rebuttal closing, it characterized
Petitioner's actions as minimization and misdirecting.
The government stated that what had occurred in the case was
Petitioner minimizing his involvement in hopes that he would
not be asked follow-up questions. The government also argued
that Petitioner only answered what was specifically asked
hoping that the agents did not catch on and engaged in
classic minimization. Petitioner's trial counsel did not
object to any of the government's statements in rebuttal.
jury returned a verdict of guilty on Count One on May 1,
2018. After excusing the jurors, the Court set a sentencing
date. The Court then told the parties that it had a concern
that the government made an inaccurate statement of law
regarding the legal elements of 18 U.S.C. § 1001 during
the government's rebuttal. Specifically, the Court noted
its concern with the statement in closing argument about
minimizing involvement and asked whether that was a violation
of § 1001. The Court stated that it did not know if it
was “a completely erroneous statement of law” or
“to the extent to which that might have affected the
verdict, ” but the Court wanted the parties to file
post-trial briefs addressing the issue.
29, 2018, fifty-nine days after the verdict (and after the
Court expressed its desire for post-trial briefing on the
government's potential erroneous statement of law),
Petitioner's counsel filed a Renewed Motion for Judgment
as a Matter of Law. In this motion, Petitioner stated that he
moved the Court “pursuant to Rule 50 of the Federal
Rules of Criminal Procedure.” In the memorandum, he
stated that the government did not prove beyond a reasonable
doubt the five elements of § 1001(a)(2). Petitioner also
stated that the government's statements in its closing
argument were misstatements of law, intentionally misled the
jury, and affected the jury verdict. Finally, in the
“Relief Requested” portion of his memorandum,
Petitioner invoked Fed. R. Crim. P. 50(b) and Rule 59.
30, 2018, the Court denied Petitioner's Renewed Motion
for Judgment as a Matter of Law. The Court noted
Petitioner's erroneous citation to Federal Rules of
Criminal Procedure 50 and 59 and that neither of these rules
governed Petitioner's requested relief. Instead, the
Court pointed out that Rules 29 and 33 of the Federal Rules
of Criminal Procedure would govern Petitioner's request.
In addition, the Court noted that motions filed under Rules
29 and 33 must be filed within 14 days after a guilty
verdict. The Court found that Petitioner did not
timely file his motion or ask the Court for an extension of
time to do so. Despite the Court's serious concerns with
whether the government misstated the law during closing
argument, the Court found that it must deny Petitioner's
August 15, 2018, Petitioner then filed a Motion for
Reconsideration. In this motion, Petitioner stated that the
Court did not give the parties the timeframe to file
post-trial briefs and that neither side could file an
argument without having possession of the trial transcripts.
He asserted that he did not receive a copy of the trial
transcript until three days after the deadline for filing any
motions for new trial. Petitioner also asserted that there
was no question that he should have filed a motion for
extension of time to file post-trial briefs but requested
that the Court find excusable neglect for failing to do so.
Court denied Petitioner's motion. The Court first found
that Petitioner's assertions regarding the trial
transcript misrepresented the facts. The Court then found
that even if the Court entertained Petitioner's argument,
Petitioner did not provide any explanation as to why he
needed 42 days after receiving the trial transcripts to file
his Renewed Motion. In addition, the Court determined that
Petitioner did not make a showing of excusable neglect for
failure to timely file post-trial briefing. The Court noted
Petitioner's counsel's lack of awareness and
“inexcusable failure to comply with the Federal Rules
of Criminal Procedure.” Ultimately, the Court found
that relief was not warranted under Petitioner's Motion
for Reconsideration but noted that Petitioner was not
entirely without recourse should he file a habeas petition
for ineffective assistance of counsel.
weeks after this Order, Petitioner's trial counsel
withdrew from the case, and new counsel entered her
appearance on behalf of Petitioner. On January 30, 2019,
Petitioner was sentenced to one year of probation. Petitioner
filed an appeal with the Tenth Circuit and then dismissed the
appeal several months later. Petitioner has now filed this
Motion to Vacate pursuant to 28 U.S.C. § 2255.
motion, Petitioner sets forth four arguments based on
ineffective assistance of trial counsel. First, Petitioner
claims that he received ineffective assistance because his
counsel missed the post-trial motions deadline. Next, he
states that his counsel was ineffective because he failed to
object to the government's misstatement of law during its
closing argument. Third, Petitioner asserts that his attorney
was ineffective because he failed to object to irrelevant and
prejudicial evidence at trial. Finally, Petitioner claims
that he received ineffective assistance of counsel because
his counsel failed to move for a mistrial after the Court
granted a judgment of acquittal on one of the two charges.
Petitioner requests that his conviction and sentence be
Court held an evidentiary hearing on Petitioner's motion
on September 24, 2019. Petitioner's trial counsel
testified. He stated that he was licensed in New Mexico but
not in Kansas. He was admitted to the federal bar of Kansas
in April 2007, but he did not have to take the Kansas bar
examination or perform any other testing to be admitted to
the Kansas federal bar. Petitioner's trial counsel stated
that Petitioner's trial was his first federal trial.
Counsel's only previous jury trial was in New Mexico
state court involving medical debt collection.
Petitioner's counsel was asked if he knew what Rule 404
of the Federal Rules of Evidence said, he stated that he did
not know. In addition, counsel testified that he did not know
what a Rule 404(b) notice was. He also admitted that he did
not know Federal Rule of Evidence 403 without looking at it.
Petitioner's trial counsel stated that he had concerns
about his ability to represent Petitioner and recommended to
Petitioner approximately three or four other defense
attorneys. Nevertheless, counsel proceeded on as
Petitioner's trial attorney.
close of counsel's testimony, both sides presented their
arguments for and against Petitioner's § 2255
motion. As discussed below, based on a review of the record,
the Court finds Petitioner's assertions of ineffective
assistance of counsel to have merit.
28 U.S.C. § 2255(a),
[a] prisoner in custody under sentence of a court established
by Act of Congress claiming the right to be released upon the
ground that the sentence was imposed in violation of the
Constitution or laws of the United States, or that the court
was without jurisdiction to impose such sentence, or that the
sentence was in excess of the maximum authorized by law, or
is otherwise subject to collateral attack, may move the court
which imposed the sentence to vacate, set aside or correct
to Rule 4(b) of the Rules Governing Section 2255 Proceedings
for the United States District Courts,
[t]he judge who receives the motion must promptly examine it.
If it plainly appears from the motion, any attached exhibits,
and the record of prior proceedings that the moving party is
not entitled to relief, the judge must dismiss the motion . .
. . If the motion is not dismissed, the judge must order the
United States attorney to file an answer, motion, or other
response within a fixed time, or to take other action the
judge may order.
court must hold an evidentiary hearing on a § 2255
motion “[u]nless the motion and the files and records
of the case conclusively show that the prisoner is entitled
to no relief.” The petitioner must allege facts that, if
proven, would warrant relief from his conviction or
brings four separate claims of ineffective assistance of
counsel. In general, to succeed on a claim of ineffective
assistance of counsel, a petitioner must meet the two-prong
test set forth in Strickland v.
Washington. Under Strickland, a petitioner
must prove that: (1) his counsel's representation was
constitutionally deficient because it fell below an objective
standard of reasonableness, and (2) the deficiency prejudiced
the petitioner because it deprived him of the right to a fair
trial. To prevail on the first prong, a
petitioner must demonstrate that the omissions of his counsel
fell “outside the wide range of professionally
competent assistance.” With regard to the second
prong, a petitioner “must show that there is a
reasonable probability that, but for counsel's
unprofessional errors, the result of the proceeding would
have been different.” “A reasonable
probability is a ...