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United States v. Frederiksen

United States District Court, D. Kansas

October 22, 2019




         On May 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.

         I. Factual and Procedural Background

         The 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.

         Petitioner 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.

         Petitioner 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.

         The two 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 the game.

         At 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.

         FBI 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.

         The 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 that.

         Petitioner 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.

         Between Petitioner's direct examination and cross-examination, the Court took up Petitioner's Rule 29 motion.[1] 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.[2] 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.

         After 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.

         In the 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.

         The 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.

         On June 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.

         On July 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.[3] 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.[4] 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 untimely motion.

         On 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.

         The 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.

         Two 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.

         In this 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 vacated.

         The 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.[5] 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.

         When 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.

         At the 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.

         II. Legal Standard

         Under 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 the sentence.

         According 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.

         The 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.”[6] The petitioner must allege facts that, if proven, would warrant relief from his conviction or sentence.[7]

         III. Analysis

         Petitioner 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.[8] 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.[9] 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.”[10] 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.”[11] “A reasonable probability is a ...

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