(HC) Crawford v. CR-F-96-5127, No. 1:2002cv06498 - Document 14 (E.D. Cal. 2009)
Court Description: MEMORANDUM DECISION AND ORDER DENYING MARK CRAWFORDS § 2255 PETITION, signed by Judge Oliver W. Wanger on 12/30/2009, CASE CLOSED. (Gaumnitz, R)
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1 2 3 4 5 6 7 UNITED STATES DISTRICT CO URT FOR THE EASTER N DISTRICT OF C ALIFORNIA 8 9 1:02-CV- 06498 OWW 10 11 UNITED S TATES OF AME RICA, 12 Plai ntiff, 13 v. 14 15 1:96-CR- 05127 OWW MEMORAND UM DECISION AND ORDER DE NYING MARK CRAWFORD S § 2 255 PETITION (1:96-CR-05127 , DOC. 812) MARK E. CRAWFO RD, Defe ndant. 16 17 18 I. INTRODUCTION Before t he cou rt for deci sion is Defendant Mark 19 Crawford s ( C rawfor d or Petitioner ) mot ion pursuant to 20 Title 18 , Unit ed States C ode, section 2255 ( Petition ). 21 Petition er con tends that he did not receive the e ffect ive 22 assistan ce of counse l dur ing his June 1999 trial, whic h 23 resulted in a jury c onvic ting him of racketeering , 24 25 26 27 28 racketee ring c onspir acy, murder in the aid of rac ketee ring, kidnappi ng in the ai d of racketeering, conspiracy , embezzle ment f rom an empl oyee welfare benefit pla n, si x counts o f wire fraud , thr ee counts of money laund ering , 1 2 3 4 obstruct ion of justi ce by killing a witness, obst ructi on of justice by ret aliati on ag ainst a witness (murder) , threaten ing to commi t a c rime of violence against a wi tness, 5 and thre e coun ts of perju ry. 6 incarcer ated, servin g a l ife sentence. 1 7 8 9 10 11 12 Petitioner is curre ntly Doc. 720. 2 Crawford s cen tral c onten tions are that his lead trial counsel, Bill May: ( 1) wa s unprepared for trial a nd wa s impaired by ph ysical , emo tional, financial, and l egal problems durin g tria l; (2 ) failed to call a key d efens e witness, Willi am Noe l, wh o May indicated in his opening 13 statemen t woul d test ify; and (3) had an actual co nflict of 14 interest that advers ely a ffected his representati on of 15 Petition er. 16 constitu tional ly ina dequa te defense warranting a new t rial. C rawfor d mai ntains that he rec eived a 17 18 19 20 21 22 23 24 II. A. PROCEDURAL H ISTORY Original Petit ion. The orig inal P etitio n all eged that Petitioner s l ead trial co unsel, Bill May, was ineffective in seven resp ects: (1) May failed to se cure the attendance of a key defen se witness, Willi am Noe l, wh o purportedly would have test ified 25 26 27 28 1 De fe nd an t wa s se nt en ced t o a li fe ter m on c ou nt s 1, 2 , 3, 17 a nd 18; a 2 40 m on th t er m on Co un ts 1 4, 15, a nd 1 6; a 1 20 m on th te rm f or C o unt 4; an d a 60 m on th t er m o n Co un ts 5 , 6, 7 , 8, 1 0, 1 1, 1 2, 13 , 19 , 20 , 2 1, 22, a ll t o be s er ve d con cu rr en tl y f or a to ta l te rm o f li fe im pr is on me n t. 2 Un le ss o th er wi se n ot ed, a ll Do c. re fe re nc es a re t o do cke t ent ri es i n 1: 96 -c r- 51 27 OW W. 2 1 2 3 4 to a con spirac y to f rame Petitioner for the murde r of Nick Brueggen ; (2) May fa iled to adequately prepare fo r tri al, having a dmitte d as m uch t o Petitioner; (3) May su ffere d 5 overwhe lming personal an d financial proble ms co mpromising 6 counsel s duty of lo yalty and creating a conflict of 7 interest ; (4) May su ffere d financial, emotional, and 8 psycholo gical proble ms co ntributing to his ineffe ctive ness as 9 10 11 12 trial co unsel; (5) M ay sl ept through certain port ions of the trial pr oceedi ngs; ( 6) Ma y failed to offer Petiti oner s sons school a ttenda nce re cords into evidence to corroborate 13 Petition er s a libi d efens e; and (7) May failed to obje ct to 14 the pros ecutio n s cl osing argument that Pet itione r s sons 15 were at school all d ay on the day of the murder. Doc. 812. 16 17 18 B. Prior Ev identi ary Ru lings Several prelim inary, evidentiary matters we re det ermin ed 19 by separ ate Me morand um De cision. 20 reply br ief ( Reply ) inc luded numerous fac tual c laims that 21 were not discu ssed i n the original petition, name ly, t hat: 22 23 24 25 Doc. 932. Petitioner s (1) May failed to ca ll ot her key witness; ( 2) May fail ed to call exp ert wi tnesse s; an d (3) arguments pertaini ng to May s discipli nary r ecords . 1: 02-cv-06498, Doc. 7-1. Petit ioner 26 moved to expan d the recor d with materials submitt ed as 27 exhibits to th e Repl y rel ating to these new factual claims. 28 Id., Doc . 9. The go vernm ent opposed this m otion in pa rt a nd 3 1 2 3 moved to strik e cert ain p ortions of Crawford s Reply, along with cer tain e xhibit s the reto, as time-barred. Doc. 9 20. The Repl y was constr ued a s a motion to amend the 4 5 Petition subje ct to the r elat ion back doctr ine. 6 6-7. 7 pertaini ng to May s alleged failure to call Petit ioner s 8 sons Pr incipa l as a witn ess, id. at 21-22, but denied as to 9 10 11 12 Doc. 932 at Th e moti on to amend was granted as to evide nce all othe r evid ence r egard ing May s failure to cal l oth er witnesse s, inc luding fact witnesses Todd Houston, Robe rt Weekley, and A mber M iller , id. at 15-17, and several 13 purporte d expe rt wit nesse s, id. at 18 -21. 14 motion t o stri ke new ly of fered evidence pertainin g to May s 15 discipli nary r ecord was g rant ed on the grou nd tha t the 16 offered eviden ce did not reflect a pervasive patt ern o f 17 conduct or con duct r elate d to May s alleged failu re to 18 19 20 21 The government s prepare for tr ials a nd/or the allegation that May oper ated under a confli ct of inter est. Id. at 22-24. Defendan t also moved to p roduce certain Criminal Justi ce 22 Act ( CJ A ) bi lling recor ds and CJA 20 form s submitted by May 23 in the c ontext of th e und erlying criminal trial. 24 records were r equest ed be cause Plaintiff believed they would 25 help est ablish that May w as u nprepared for trial. 26 27 28 06498, D oc. 8. The billing 1:0 2-cv- The CJA 20 forms require co unsel to di sclose under pe nalty of per jury any outside income earne d dur ing the 4 1 2 3 4 course o f a CJ A-fund ed representation. Cra wford alleg es that May neve r info rmed t he CJ A Pa nel Administra tor of cert ain private compen sation he w as receiving during the trial and 5 suggests that this f ailur e, if proven, might unde rmine May s 6 credibil ity. 7 Forms, b ut den ied as to t he billing r ecords, because t he 8 billing record s woul d she d no additional light on 9 10 11 12 13 Petition er s a llegations. Doc. 932 at 25-26. Th e CJA Panel Administ rator produc ed th e CJA 20 forms and the p artie s were permitte d to, and di d, su bmit supplemental briefs conc erning those re cords. Id. at 27; Docs. 937 & 939. The cour t hear d oral argu ment on the Petition bef ore i ts 14 15 Defend ant s mot ion was granted as to the CJA 20 submissi on. 16 III. 17 18 19 20 21 22 23 A. FACTUAL BACK GROUND . Overview of th e Ente rpris e. The char ges in this case relate to the organized crime activiti es of a rack eteer ing enterpri se kno wn as the Family, whic h was based in Southeast Texa s and led b y Petition er, th e form er ma yor of Ingleside, Texas. The 24 charged member s of t he Fa mily were defendant Mark E. 25 Crawford , Fran k R. B ochic chio, John R. Crawford ( Defen dant s 26 brother) , Mike Beckc om, K irk A. Johnson, Da vid Franco, George 27 N. Nick Brue ggen, Juan P. Galvan, and others. 28 The e vidence at trial estab lished that Mark Crawford was the l eader of the 5 1 2 3 4 Family, and th at he gave other members large, dis tinct ive gold rin gs, wi th the Chin ese symbol for family embla zone d on them. Repo rter s Tran script of Trial ( R.T. ) at 775-76 5 (Sipila) . 6 and to F amily boss M ark C rawford. 7 (Beckcom ). 8 the Fami ly is going to fu cking pay. 9 10 11 12 The ring symbo lized loyalty, both to e ach o ther Id.; R.T. 2632 :22-23 Th e ring also meant that anybo dy who fuck s with R.T. 776:14 -15 (Sipila) . The Fami ly mem bers crimes, as charge d in t he indictme nt and prov en at trial, fall into four main categori es: 13 (1) Oper ation of a p hony health insurance company , 14 Viking Casualty Com pany, wh ich defrauded health 15 plan par ticipant vic tims in and around Fresno, 16 Californ ia; 17 (2) Oper ation of mul tiple employee staff leasing 18 19 20 21 companie s in southea st Texas and in Gulfport, Mississi ppi, which d efrauded their clients and th e IRS; 22 (3) Oper ation of a p hony Bui lder s H ome Wa rranty 23 insuranc e company in southeast Texas, with victim s 24 in Color ado and else where; and 25 (4) Kidn apping and m urder of one of the Family s own 26 27 28 members, Nick Bruegg en, after he began to coopera te with fed eral law enf orcement authorities in the 6 1 Eastern District of California conducting a grand 2 jury inv estigation i nto Viking Casualty Company. 3 4 5 6 7 8 9 B. The Viki ng Cas ualty Compa ny Scam. Count On e s ra cketee ring predicate acts one (embezzl ement from a n emp loyee welfare benefit pl an), two (wire fr aud), three (mone y laundering), and four (mone y launderi ng con spirac y) al l pertain to Mark Crawfo rd s 10 particip ation in a f raudu lent insurance company w ith J ohn 11 Crawford , Geor ge Bru eggen , Harry Clift, and others. 12 Second S uperse ding I ndict ment, Doc. 88 at 2-13. 13 14 15 16 See From the fall of 199 2 thr ough 1995, a company cal led Ararat I nterna tional Admi nistrators ( Arara t ) operated in Fresno, Califo rnia. R.T. 281 (Rodrig uez). Ararat was a 17 third pa rty ad minist rator of health insurance pla ns fo r small 18 business es. 19 business clien ts and , aft er deducting administrat ive f ees, 20 forwarde d the premiu ms to an insurance carrier fo r 21 underwri ting t o prov ide h ealth benefits for plan parti cipants 22 23 24 25 R .T. 28 0. Ararat accepted premiums from small (employe es of the bu sines ses). R.T. 281. In late 1992, Ararat was looking for an insurance company to ser ve as its u nderwriter. R.T. 282. Insur ance 26 brokers Jarman Holla nd an d James Carroll, of Tennessee , 27 helped A rarat find V iking Casualty Company ( Viking ), bas ed 28 in Corpu s Chri sti, T exas. R.T. 316-20 (Car roll). 7 Dur ing the 1 2 3 4 search f or Vik ing, J ames Carroll spoke initially with defendan ts Geo rge N. Brue ggen and Harry E. Skip Clif t, who represen ted th emselv es as representatives of Viki ng. 5 321. 6 willing to tak e over the risk and assume the busi ness 7 forwarde d by A rarat. R.T. 8 9 10 11 12 Bo th Bru eggen and C lift told Carroll that Viking was R.T . 321-22. On March 25, 1 993, C arrol l and Holland, acting as represen tative s of A rarat , traveled to Corpus Chr isti to meet with Vik ing of ficial s and finalize th e arra ngements fo r Viking t o assu me the Arar at block of business. R .T. 3 38. 13 Mark Cra wford and hi s bro ther John Crawford met C arrol l and 14 Holland at the airpo rt, a nd brought them to what the 15 Crawford s repr esente d was Viking s headquar ters. 16 Brueggen and H arry C lift were brought in to the m eetin g and 17 introduc ed as Viking exec utives. 18 19 20 21 Id. R.T . 340-41, 343. Ararat and Viki ng agr eed in writ ing that Viking would as sume health benefit underw riting for Ararat s cli ents. R.T. 343-44. The agreemen t call ed for Arar at to collect heal th ins uranc e 22 premiums and k eep 22 .5% f or its administrative fe es an d 23 costs. 24 premiums colle cted t o pay small claims, and remit the balance 25 (minus a gents fees) to V ikin g. 26 27 28 R.T. 3 47. A rarat was also to keep 40% of the R.T. 347-48. This am ount remitted to Vi king w as ap proximately 30% of premi ums collecte d. Id . The mone y, h eld in a trust account in 8 1 2 3 4 Tennesse e, R.T . 348, was to b e wire transfe rred to an account set up b y Brue ggen, in Ho uston, Texas, R.T. 350. Viking w as an admitt ed in sura nce carrier in the Distri ct 5 of Colum bia, b ut was suspended, as of Decem ber 31, 1992, from 6 conducti ng any busin ess. 7 never ap plied to do busin ess in the State of Cali forni a, and 8 a Certif icate of Aut horit y permitting Vikin g to do such 9 10 11 12 R.T. 481-82 (Sheppard). business has n ever b een i ssued. Vik ing had R.T. 496 (Torrescano) . Viking w as ser iously unde rcapitalized and was ess entia lly without assets . See R.T. 482. 13 Racketee ring p redica te ac t one (embezzlement from an 14 employee welfa re ben efit plan) encompassed the whole of Mark 15 Crawford s con duct r egard ing Viking Casualty Comp any a nd the 16 premium funds receiv ed fr om Ararat International 17 Administ rators . 18 19 20 21 Doc . 88 at 6-9. Fro m Marc h 1, 1993, through July 30, 1993, Arara t transmi tted $222,573 in health insuranc e prem ium fu nds t o Viking accounts under the c ontrol of Brueg gen, M ark Cr awford, a nd John Crawford. R.T. 6 98 22 (Spjute) . 23 of its p olicyh olders , Vik ing did not pay them, R.T. at 719, 24 and inst ead ke pt the prem ium funds for the Crawfords use and 25 benefit. 26 27 28 Whe n Arar at submitted claims to Viking on behalf Racketee ring p redica te ac t two (wire fraud) consi sted of three su b-pred icates , eac h pertaining to a specific do cument 9 1 2 3 4 sent ove r the wires. Doc . 88 at 9-10. Sub -predi cate one was a March 29, 19 93 fac simil e from Brueggen, a s a represe ntative of Vikin g, to Ararat representative James C arroll, id. at 10, 5 instruct ing Ca rroll to se nd Money to a Houston ac count , R.T. 6 350. 7 James Ca rroll to Bru eggen , breaking down how premium p ayments 8 would be distr ibuted . 9 10 11 12 13 14 15 16 Su b-pred icate two w as an April 8, 199 3 facsimile from R.T. 353. Sub-predi cate three was a June 8, 1993 f acsimi le fr om Brueggen to Jarman Ho lland , Carroll, and V K Hold ing C ompany, requesting payment of fees to Vikin g Casu alty a nd hi mself (Brueggen). C. R.T. 357. The Staf f Leas ing Sc am. Racketee ring p redica te ac ts fourteen (wire fraud) , fifteen (money laund ering ), and sixteen (money la under ing 17 conspira cy) al l pert ain t o the participation of d efend ant 18 Mark Cra wford and hi s co- defendants in the Family s 19 fraudule nt sta ff lea sing companies, includi ng, bu t not 20 limited to, Su perior Empl oyee Leasing and StaffPr o. 21 at 24-28 . 22 23 24 25 Doc. 88 A s taff l easin g co mpany contracts to hire a ll of a client b usines s s em ployees, and then lease s those emp loyees back to the cl ient. The staff leasing process defers expenses , such as pa yroll , quarterly payment of t he 26 employer s sha re of emplo yee tax withholdings to the I RS, and 27 the paym ent of worke rs compensation insura nce. 28 generall y R.T. 2092- 94 (Z amora). 10 See 1 2 3 4 The Fami ly s s taff leasing businesses assured its clients that t hey wo uld d uly hold and forward all payr oll taxes ow ed to the IR S. T he companies would colle ct th e 5 employer s sha re of the e mployees wi thhold ing tax pay ments 6 from cli ent co mpanie s. 7 the taxe s to t he IRS , the Family pocketed much of the money. 8 See gene rally R.T. 9 00-02 (McGuill); R.T. 1 017-19 (Tichenor); 9 10 11 12 R.T. 139 1 (Cag le). H owever, instead of forwa rding all of The F amily s staff leas ing co mpani es failed t o pay taxes due a nd often failed to file tax r eturns at all f or the busin esses to which it lease d employees . 13 generall y R.T. 2067- 81 (Z amora). 14 Family m illion s of d ollar s in just a few years. 15 See The schem e nett ed th e Id. Between 1993 a nd 199 6, Fa mily members acting unde r the 16 directio n of M ark Cr awfor d formed a number of ove rlapp ing and 17 interrel ated s taff l easin g companies. 18 19 20 21 The strate gy wa s to operate these busine sses, pocket the payroll tax and insuranc e mone y, and , whe n the IRS started closin g in, shut the comp any do wn, de clare bankruptcy, and transfe r the 22 clients to a n ew emp loyee sta ff leasing com pany under another 23 Family m ember s name . 24 895 (McG uill); R.T. 962-64 (M oreno); R.T. 1013-1017; R.T. 25 1093 (Ti chenor). 26 27 28 See R. T. 1347-49, 1354 (Beckcom ); R.T. Th e sch eme generated tens of thousan ds o f dollars for Ma rk Cra wford and the Family per week. At one point Ma rk Cra wford alone was incurring at least $35,0 00 per 11 1 2 3 4 month in perso nal ex pense s. See R.T. 2121 (Zamora); R .T. 1349 (Be ckcom) . All of t he sta ff lea sing businesses were interrel ated. 5 Defendan t Mark Crawf ord, often together with his broth er, 6 John, ac ted as the b oss. 7 R.T. 888 (McGu ill), R.T. 1348 (Beckcom). 8 Bochicch io put the b ank a ccounts in his name for multi ple 9 10 11 12 business es. See , e.g., R.T. 7 52-54 (Sipila), Co-defendant S ee, e. g., R .T. 772, 853-54 (S ipila); R.T. 1524, 1527 (Ob enhaus ). Co -defe ndan t David Franco was the accounta nt for all o f the companies. R.T. 778-79 (Sipila). 13 Galla Mc Guill was bo okkee per. 14 Multiple busin esses opera ted from the same office s. 15 matter w hich F amily membe r a business might nominally belong 16 to, mone y was siphon ed ou t to support Mark Crawfo rd an d his 17 fellow F amily member s and friends in lavish style , and to 18 19 20 21 22 maintain the e nterpr ises. R.T. 888-92 (McGuill). Id. See, e.g., R.T. 786-90, 793 -94, 806-07 ( Sipila ); R.T . 899 (Mc Guill); R.T. 964-67 (More no); see gene rally R.T. 2 094-110 ( Zamora). The evid ence e stabli shed that the various compani es an d 23 their re venues were, as a practical matter, compl etely 24 intercha ngeabl e. 25 intermes hed an d inte rtwin ed -- it all became a big mes s. 26 27 28 No As one witness put it, everyth ing g ot R.T. 850 , 852 (Sipil a); see g enerally R.T. 1013-17 (Ticheno r). F or exa mple, money would be siphoned out of 12 1 2 3 4 Superior Emplo yee Le asing and transferred to Staf fPro, and vice ve rsa. R.T. 794-96 (S ipila). This would occur by dummy pa yments to in divid uals , or by wire transfers. R.T. 5 798-802; see g eneral ly R. T. 1 186-91 (R. Gar za). 6 payments from these inter changeable accounts woul d oft en go 7 to Bochi cchio. 8 932 (McG uill); R.T. 984-87 (M oreno); R.T. 1 154-55 (Willis); 9 10 11 12 13 14 15 16 Large See, e.g., R. T. 802-03 (Sip ila); R.T. 903-04, R.T. 117 5-76 ( R. Gar za). Bochicchio would pick up his payments at mu ltiple loca tions, including the Sta ffPro offices D. R.T. 1128- 29 (W illis). The Buil ders H ome Wa rrant y Insurance Scam. Count On e s ra cketee ring acts seven through nine (wire fraud), ten th rough twelv e (mail fraud), and thir teen (money 17 launderi ng) pe rtain to co -def endant Bochicchio s 18 particip ation in the Buil der s Home W arrant y insurance scam. 19 Doc. 88 at 15- 21. 20 Nick Bru eggen, and l ater Bochicchio, but mo ney also fl owed to 21 Mark Cra wford and th e oth er Family members to mai ntain their 22 23 24 25 T his s cam primarily enri ched the de ceased, lifestyl es and to fu nd th eir criminal activities. The buil der s home w arran ty i nsurance scam s main victims were t he new home warranty customers of a comp any 26 called B uilder s Hom e War rant y ( BHW ), located in Eng lewo od, 27 Colorado . 28 provide HUD-re quired home war ranties to hom e builders to R.T . 1763 -67 ( DeRo cher). 13 BHW s business wa s to 1 2 3 4 protect new ho me buy ers. R.T. 1763-65. On avera ge, a builder would pay BH W about $300 per home for the new home buyer s warran ty pro tection, which was supposed to cover the 5 cost of fixing any w orkma nship problems that surf aced in the 6 home. 7 required it to contr act with an insurance company to p rovide 8 extra pr otecti on to the n ew home buye r. 9 10 11 12 13 14 I d. BH W was not a n insurance company. Ra ther, HUD R. T. 1765-66. The insuranc e comp any re ceive d, on average, about hal f of the fee the buil der pa id to BHW. Id. BHW was to cover repair s costing up to $5,000 ; BHW s i nsurance company would co ver repairs costin g more than $5,000. R.T. 1765. Starting in 19 93, Br uegge n, doing business as People s 15 Insuranc e Comp any, began pro viding insurance coverage for 16 BHW for the ho me war ranti es. 17 would ov ernigh t mail or w ire transfer tens of thousand s of 18 19 20 21 R.T. 17 66-67. Ever y mon th, BHW dollars in ins urance prem iums from Colorado to Br uegge n in Houston. R.T. 1767- 69. By 1 996, the payme nts were in the neighbor hood o f $60, 000 p er month. R.T. 1768-69. In 22 addition , BHW also s ent B rueggen a consulting fee amounting 23 to ten p ercent of th e mon thly premiums. 24 Between 1993 a nd his murd er on May 6, 1996, Brueg gen 25 collecte d roug hly $6 73,00 0 from the BHW scam. 26 27 28 R.T. 177 0-71. R. T. 19 60-64 (Spjute) ; Gove rnment Exhibit ( GX ) 5R. Brueggen admin istere d his insurance busine ss wi th the 14 1 2 3 4 help of a CPA, James Knig ht, in Houston, Texas. (Knight) . R.T. 1559-60 Pay ments and p aperwork would come in t o the CPA s office f rom BH W. Fo llowi ng Brueggen s instructions, K night 5 and his staff would pay B rueggen s personal expenses, and 6 would st amp th e insu rance -rel ated paperwork with a sta mp 7 bearing the si gnatur e: Mu lk Raj Dass. 8 (Hettenb ach). 9 10 11 12 R.T. 1633- 36 This same fictitious signature sta mp wa s used by Bochi cchio and Ma rk Cr awford for the operation of s ome of the empl oyee s taff l easing businesses. R.T. 1527 -30 (Obenhau s). Brueggen was n ot a l icens ed insurance agent, nor was h e 13 14 affiliat ed wit h any real or legitimate insurance carri er. 15 See R.T. 1743- 46 (Sh erman ). 16 operate was in fact the n ame of a real insu rance compa ny, 17 affiliat ed wit h the large and reputable Progressi ve Ca sualty 18 19 20 21 Insuranc e Comp any. The name under which he c hose to R.T. 1721-24 (Sch neider). However , Brueggen had n othing what soever to do with Progre ssive Casualty , the real i nsura nce company, the real affilia tes of 22 which ne ver di d busi ness in Colorado or Texas after 1990, and 23 never un derwro te bui lder s home warranty insuranc e policies. 24 Id. 25 actively to ma intain the charade. 26 27 28 Reg ardles s, Brueggen , an d later Bochicchio, worke d As the name of the real insuranc e comp any ch anged ove r the ye ars from Peoples Insuranc e Comp any t o Pr o West Insurance Company to 15 1 2 3 4 5 Progres sive W est In suran ce Company, the name of the fake company in Tex as cha nged with it. R.T. 192 6 (Gar cia). R.T. 1722; R.T . 191 4-15, The phony compan ies ne ver purchas ed insuranc e. From 199 3 thro ugh th e beg inning of 1996, most of the B HW 6 7 insuranc e prem ium wi ndfal l apparently went to enr ich 8 Brueggen . 9 10 11 12 R.T . 1960 -61 ( Spju te); GX 5R. Some of Brue ggen s insuranc e prem ium in come, however, also went to t he Fa mily. For inst ance, in lat e 199 5, Brueggen wired $10,00 0 to Mark Crawford so th at one of t he Family s employee staff le asing 13 companie s, Uni que Co ntrac ting, could meet its pay roll. 14 R.T. 3857 (Re cio). 15 16 17 E. Bochicch io Bec omes t he Fr ont Man. In early 1996, Brueggen began to see the ne ed for a 18 front ma n for the BH W sca m. 19 letter f rom th e Unit ed St ates Attorney s Office in the 20 Eastern Distri ct of Calif ornia informing him that he w as a 21 target o f a gr and ju ry in vestigation into Viking. 22 23 24 25 (Horne). In January 1996, he recei ved a R.T. 2267 Beca use th e fed eral authorities were fo cusin g on Brueggen , it w as dec ided that Bochicchio would pu t the phony BHW busi ness i n his name. R.T. 2630 (Beckcom). This meant, 26 Bochicch io wou ld pla y the same front man role h e pla yed for 27 Mark Cra wford s staf f lea sing companies. 28 Id. In March of 19 96, Br uegge n brought Bochicchio to his 16 1 2 3 4 accounta nt s o ffice and introduced Bochicchio as the person who woul d be t aking over the insuranc e business. (Knight) ; R.T. 1645 (Hett enbach). R.T. 1574 Like Brueggen, Boch icchio 5 had no i nsuran ce lic ense and no connection whatev er to any 6 bona fid e insu rance carri er. 7 1721-24 (Schne ider). 8 continue to us e the Mulk Raj Dass (an unrelated pers on) 9 10 11 12 See R.T. 1745 (Sherman); R.T. Boc hicc hio instructed the a ccoun tant to signatur e stam p when payi ng the company s b ills. (Hettenb ach). R.T. 1636 From then on, Bochicchio was in fr equen t contact with t he acc ounta nt s office, giving instructi ons. 13 See R.T. 1610- 12 (Kn ight) ; R. T. 1645-52 (Hettenbach). 14 same mon th, Br ueggen also notified BHW that premi ums were no 15 longer t o be s ent to Peo ples Insurance Com pany, but instead 16 to Peopl es/BHW in ca re of Bochicchio. 17 (DeRoche r). 18 19 20 21 That See R.T. 1 774-75 In late March 1996, Brueg gen and Bochicchio incorpor ated, in the Stat e of Texas, the fr audulent in surance company Peopl e s BH W an d a holding compan y, Infinity 22 Operatio ns. 23 Bochicch io and Brueg gen s et up two new bank accou nts i n the 24 name of Bochic chio s Peop les/ BHW company, b ut to which 25 Brueggen had a ccess, at t he F irst Sta te Ban k in Corpus 26 27 28 R .T. 16 14-18 (Knight). Christi, Texas . In Apr il 1996, R.T . 1682-83 (Russel l). personal ly aut horize d the new accounts. 17 B ochicchio R.T. 1683. 1 2 3 4 Beginnin g in M arch o r Apr il of 1996, BHW, followi ng Brueggen and B ochicc hio s ins tructions, began sending BHW premiums to Bo chicch io in stead of directly to Bru eggen . 5 3784-85 (DeRoc her). 6 and had access to th e acc ounts. R.T. At t his point, Bruegge n was still ali ve See R.T. 1682 (R ussell). 7 8 F. Conspira cy to Distri bute Marijuana. 9 When the staff leasi ng co mpanies of t he Fam ily began to 10 have fin ancial diffi culti es, Mike Beckcom suggest ed to Mark 11 Crawford that they s ell m arijuana to make some extra c ash. 12 R.T. 262 6-27 ( Beckco m). This discussion oc curred in e arly 1996. During this same time, d efend ant 13 14 15 16 17 18 R .T. 26 27, 26 74. Kirk Joh nson w as cal ling Mike Beckcom asking Beck com f or differen t drug s. R. T. 2627. Kirk Johnson also asked Beckcom if he kn ew of ways t o mak e some extra money. Id. Mike Bec kcom o btaine d thi rty pounds of marijuana from a 19 man in H ouston for $ 17,50 0. 20 delivery of th e mari juana in a box from the man. 21 Inside t he box , the marij uana was bundled into va rious 22 23 24 25 weights. R.T. 2679. R.T. 2674-76. He receive d R.T. 2678. Mik e Beckcom and Mark Crawf ord then sat down to decide how t hey w ere going to sell it. They dec ided t o driv e it to New York. R .T. 2 680. R.T. 2681. Mark 26 Crawford and B eckcom drov e the drugs to New York, wher e they 27 contacte d a ma n Beck com k new. 28 agreed t o purc hase t he dr ugs for $800 per pound. R.T. 2681. 18 Beckco m s c ontact R.T. 2682. 1 2 3 4 Mark Cra wford and Mi ke Be ckcom met with the man i n a h otel room and gave him a duffe l bag containing 50 poun ds of marijuan a. R. T. 268 4. Mark Cra wford and Mi ke Be ckcom then traveled to t he Po rt 5 6 Arthur, Texas, area to pr ovide Kirk Johnson five pound s of 7 the mari juana to sel l for the Family. 8 Johnson sold t he mar ijuan a and gave Mike Beckcom some of the 9 10 11 12 proceeds from the sa le. Id. R.T. 2627. Kir k Mike Beckcom also r eceiv ed money wi red to him f rom N ew York as a result of t he de livery of marij uana t here. Id. When Beckco m rece ived money from 13 the sale of ma rijuan a, he gave the money to the h ead o f the 14 Family, Mark C rawfor d. R .T. 2628. 15 16 17 G. Bankrupt cy Fra ud In Septe mber o f 1994 , Mar k Crawford, doing busine ss as 18 Superior Emplo yee St aff M anagement, Inc. ( Superior ), filed 19 a Chapte r 11 b ankrup tcy p etition in Texas. 20 (Wendlan dt). 21 operate under Bankru ptcy Court protection while i t pay s off 22 23 24 25 R.T. 2022- 23 Chapte r 11 allows a business to con tinue to its debt s, und er the supe rvision of a trustee. R.T. 2 021. At the t ime th is ban kruptcy petition was filed, the business owed the IR S mor e than $1 million in wit hhold ing 26 taxes, p enalti es, an d int eres t. 27 such as Superi or fil es ba nkruptcy, the officers o f the 28 company become debt ors-in-possession. 19 R.T. 2023. When a bu siness R. T. 2025. A 1 2 3 4 5 debtor-i n-poss ession has a duty to operate the busines s in a reasonab le man ner so that the creditors of the bu sines s can receive a fair retur n on the amounts owed to them . R. T. 2025-26. A monthl y oper ating repor t must be filed with the 6 7 bankrupt cy cou rt, stating , un der penalty of perju ry, t he 8 amount o f mone y the busin ess has taken in, the ex pense s of 9 10 11 12 the busi ness, and th e val ue of any as sets. R.T. 2027. Mark Crawford submi tted t wo mo nthly operating reports, one covering Augus t-Sept ember, 1995, and anothe r cove ring 13 October- November, 19 95. 14 by Mark Crawfo rd und er pe nalty of perjury. 15 R.T. 2028. The re ports were signed R.T. 2027. On Janua ry 8, 1996, Mark Crawford testified at a heari ng 16 in U.S. Bankru ptcy C ourt, Corpus Christi, Texas, conce rning 17 Superior s Cha pter 1 1 pet ition. 18 19 20 21 R.T. 2029. Peti tione r admitted takin g mone y ear marked for paying withho lding taxes and usin g the funds to pa y an insurance company. R.T. 2031. He admit ted th at he paid the insurance company $2 mill ion, 22 the bulk of wh ich ca me fr om d iverted employ ee withhold ing 23 taxes. Id. 24 25 26 H. The Kidn apping and M urder of Nick Brueggen. In April 1996, defen dant Mark Crawford learned th at Ni ck 27 Brueggen had m et wit h fed eral authorities in Fres no. 28 R.T. 226 8 (Hor ne); R .T. 2 634 (Beckcom). 20 See He became enr aged 1 2 3 4 5 that Bru eggen was s nitch ing in California. (Beckcom ). R.T . 263 5 Ma rk Cra wford said: Nick s dea d. R .T. 2636 (Beckcom ). In early May 1 996, B ochic chio mentioned to his ba nk 6 teller i n Corp us Chr isti that some associa tes of his were 7 picking up a g entleman fr om t he airport that was comin g from 8 Houston. ... 9 10 11 12 R.T. 1 928 ( Garc ia). On May 6 , 1996, def enda nt Mark Cra wford told M ike B eckcom and defendant Kir k Joh nson to pick up Bruegg en at the C orpus Christi airport wh en hi s flight a rrived from Houston. R.T. 2637 (Be ckcom). For th e 13 promise of $2, 500 fr om Ma rk Crawford, Kirk Johnso n agr eed to 14 help. 15 brought him to Mark Crawf ord s buildi ng at 561 Jacoby Lane. 16 R.T. 264 1-42. 17 men got out of the c ar an d entered the building. 18 19 20 21 R .T. 26 38. B eckco m and Johnson picked up Brueg gen and When they arri ved at J acoby Lane, the t hree Beckcom and Jo hnson drew guns on Brueggen. Mark Cra wford screamed at Bru eggen: screwed my fam ily. R.T. 2643. R.T. 2643- 44. You f ucked me, y ou You v e fucked me for the last time . You 22 are goin g to f ix it today and you are leaving the coun try. 23 R.T. 264 4. 24 Crawford and B eckcom went to Wal-Mart. 25 26 27 28 Jo hnson kept Brue ggen at gunpoi nt while Ma rk R.T . 2645 -46. When Cra wford and Be ckcom returned to Jacoby Lane , Crawford and B ruegge n had a c onversation ab out some document s. R. T. at 2647. Brueggen told Crawford the 21 1 2 3 4 document s were in Ho uston . Id. Craw ford indicated th ey were going to retri eve th e doc uments from Houston. See id. Crawford then took B ruegg en s keys, and forced Br uegge n to 5 get into a lar ge too lbox (a Jobox ). 6 remained behin d with Brue ggen while Crawford and Beckc om went 7 to the C orpus Christ i air port to purchase tickets to H ouston. 8 R.T. 264 8-49. 9 10 11 12 R.T. 2648. Joh nson After maki ng travel arrangem ents, Crawf ord and Beckcom return ed to Jacob y La ne. R.T. 2649 . Johnson had le t Brue ggen out of the Jobox. By then, Id. Crawford became a ngry a nd mad e Bru eggen get back into the box, 13 threaten ing: 14 cap into you. 15 Crawford close d the lid. 16 in the b uildin g. 17 18 19 20 Id. Brueggen got bac k into the box, a nd R.T. 2650. It was ext remel y hot Mark and Beckc om the n wen t to a Dairy Queen in Inglesi de to meet with B ochicc hio. R.T . 2650 (Beckcom). As Bec kcom put it: We sat d own and they had a conversation. First Frank [B ochicchio] w as kind of guarded. I could tell tha t everyone w as kind of nervous. Crawford asked hi m it was pretty much in relationship to a wire tra nsfer that w as expected into the account that Boc hicchio had for Brueggen. 21 22 23 24 25 Get i n the fucking box or I will p op a fucking Id. Lat er tha t afternoon , wh ile Brueggen was sti ll lo cked in 26 the Jobo x, Boc hicchi o sto pped by 561 Jacoby Lane, and Beckcom 27 introduc ed Boc hicchi o to Johnson. 28 rat s in the t rap, Mark Craw ford told Boch icchio. 22 R.T. 2652 (Bec kcom) . Id . The 1 Bochicch io hug ged Ma rk Cr awfo rd, then Bochi cchio left. 2 A short time l ater, Mark Crawford, Beckcom, and K irk 3 4 Id. Johnson made a final trip to Wal-Mart, leav ing Bruegge n 5 locked i n the Jobox. 6 tape and a gar den ho se. 7 Jacoby L ane, B eckcom back ed his Ford Explorer int o the 8 building , leav ing it runn ing. 9 10 11 12 At Wal-Mart the three picked up duct R.T. 2653-55. When they retu rned to R.T. 2656 (Beckcom ). J ohnson taped on e end of the gard en hose to the Ford s exhaust pipe. Id. Mar k Craw ford taped the other end to the Job ox. Id. Mark Cra wford and Jo hnson then together taped ove r all of the 13 remainin g air holes in th e Jobox. 14 stacked debris on th e Job ox to dampe n the noise of N ick 15 Brueggen s las t mome nts. 16 and John son th en wal ked outside the buildin g and made smal l 17 talk whi le Bru eggen was a sphyxiated by the exhaus t fum es. 18 19 20 21 22 R.T. 265 7-58 ( Beckco m). R.T. 265 6-57. R.T . 2657. They Mark Crawford, B eckcom, After Brueggen was dead, Kirk Johnson took t he fa mily ring off Brueggen s han d at Mark Crawford s req uest. R.T. 2661-62. A few da ys aft er the murder, Mark Crawford instru cted 23 Mike Bec kcom t o give Kirk Johnson the Family ri ng formerly 24 worn by the ma n John son h elped murder. 25 (Beckcom ). 26 27 28 Johnson. R.T. 2625 , 266 3-64 W elcome to t he F amily, Mark C rawfor d tol d R.T. 2625, 2663-64. Johnson acce pted t he ri ng. See R.T. 2437. 23 1 2 3 4 About a month later, on J une 6, 1996, Brueggen s body was foun d in a shall ow gr ave behind 561 Jacoby La ne. 2466-69 (River a). R.T. O n hea ring that the body had b een f ound , 5 Bochicch io tol d Beck com, Yea h, that s Mark s pro blem - I 6 told him not t o bury him there. 7 8 9 10 11 12 R.T . 2665 (Beckcom). After th e body was f ound, Mark Crawford became a fugitive . He left T exas and abandoned his red Me rcede s in New Orle ans. R.T. 2 808 ( Bates). In the car, Mar k Cra wford left beh ind BH W corr espon denc e between Brue ggen and BH W CE O Andrew J elonki ewicz. R.T . 2810-11 (B ates); GX 8C -1 an d 8C-2. Mark Cra wford was ar reste d in Mississippi on July 13, 13 14 1996. 15 included a wom an s w ig an d clothing. 16 mobile h ome wh ere Cr awfor d was arrested, officers foun d a 17 blue not ebook contai ning Mark Crawford s inculpat ory 18 19 20 21 22 23 24 25 R .T. 28 31-32 (Kerl ey). He had a dis guise, which R.T. 2833-34. I n th e statemen ts con cernin g the kidnapping of Nick Brue ggen. R.T. 2834-37. I. Bochicch io s C ontinued Maintenance of the Scams. At the s ame ti me tha t Mar k Crawford was bestowing his family ring upon K irk Johnson, a few days after Nick Brueggen s mur der bu t bef ore his body was found, Bochi cchio 26 transfer red th e Peop les/B HW and Infinity Operatio ns ba nk 27 accounts again , this time to accounts in Corpus Christ i over 28 which Br ueggen had n o con trol. 24 R.T. 1885-86. St artin g a few 1 2 3 4 days lat er, Bo chicch io ma de a series of large wit hdraw als from the accou nt. O n May 18, 1996, he made two c ash withdraw als, f or $7, 206.3 8 and $3,245, respective ly. 5 1888-89; Gover nment s Exh ibits 5W-3, 5W-4. 6 day, he withdr ew $8, 463 i n cash. 7 Exhibit 5W-5. 8 withdrew $8,84 6 in c ash. 9 10 11 12 13 6. R.T. The very next R.T. 1889; Gove rnmen t s About eleven days later, on May 31 , 1996, he R.T. 1889; Government s Exhi bit 5W- On M ay 15, 1996, Boch icch io also took o ut a loan f or $10,000 agains t a ce rtifi cate of deposit he had p urcha sed with BHW premi um mon ey. R.T. 1890-92; GX 5W. Meanwhil e, ins urance prem ium money continued to f low i n 14 from Col orado. 15 over $2. 2 mill ion in BHW premium funds. 16 Governme nt s E xhibit 5R; R.T. 1898-1900 (Garcia). 17 used the money for p erson al items, to purchase re al pr operty 18 19 20 21 From 1996 through 1998, Bochicchi o too k in R.T. 196 4 (Sp jute); Boc hicchio in the C orpus Christ i are a, buy certificates of d eposi t, and obtain c ash. R.T. 1965 ( Spjute); R.T . 1905-1922 (Garc ia). At no ti me did Bochi cchio ever engage in any insu rance 22 related activi ties, home warranty or otherwise. 23 1900-03 (Garci a). 24 mailed l etters on fa ke le tterhead, sometime s with forg ed 25 signatur es, to Color ado t o keep the money coming. 26 27 28 See R .T. H oweve r, B ochicchio from time to ti me See, e.g., R.T. 190 2-04 ( Garcia ); R. T. 1965 (Spj ute), 1969-79 (li stin g various forged docum ents purporting to show exist ence of an 25 1 2 3 4 insuranc e busi ness, found during a search warrant exec uted at Bochicch io s r esidence). Also, Bochicchio, from time to time, ch anged the na me of his insurance co mpany to 5 correspo nd to the na me ch anges of the real insura nce c ompany. 6 See, e.g ., R.T . 1914 -15 ( Garc ia) (accounts in the dba name 7 Peoples Pro W est o pened); R.T. 1926 (Garc ia) (company no w 8 referred to as Prog ressive Insurance Compa ny ); see a lso 9 10 11 12 R.T. 172 2 (Sch neider ) (li sting name changes of th e rea l company) . J. 13 14 15 16 17 State Mu rder T rials. May serv ed as Petiti oner s trial counsel in both state trials. 3 Mark Crawford was tried twice in t he Sta te of Texas for his involv ement in th e murder of Nick Bruegge n. T he first tr ial en ded in a hu ng jury; the second in a cquit tal. 18 19 20 K. Federal Indict ment. Mark Cra wford and nu merou s other members of the F amily 21 were ind icted in the East ern District of Ca lifornia on May 22 30, 1996 on mu ltiple felo ny charges related to th e 23 racketee ring e nterpr ise a nd the kidnapping and mu rder of Nick 24 25 26 27 28 3 Bi ll M ay g ra du at ed f rom t he U ni ve r sit y of T ex as L aw S ch ool i n 197 8, a nd w as i n pr iv ate p ra ct ic e b rie fl y be fo re j oi ni ng th e Nu ec es Cou nt y Di st ri ct A tt or ney s O ff ic e i n 1 97 9. Ma y 2/ 20 /0 4 Dep o. He rem ai ne d at t he D is tr ict A tt or ne y s Of fi ce u nt il 1 98 8, a fte r wh ic h he aga in t oo k up p ri va te pr ac ti ce . I d . He h as t ri ed b et we en 30 0- 50 0 cri mi na l ca se s, p ro se cut ed t hr ee c a pit al c as es a s a de pu ty di st ri ct att or ne y, a nd d ef en de d t wo c ap it al cas es w hi le i n pr iv at e l aw p ra ct ic e . Id. 26 1 2 3 4 5 6 Brueggen . On July 23, 1998, the gran d jury retur ned a sec ond supersedin g indi ctmen t alleging the f ollowi ng ch arges: Cou nt Def en da nt Cha rg e 1 Mar k E. C ra wf or d, Fra nk R . Bo ch ic ch io , Joh n R. C ra wf or d, Dav id F ra nc o, J r. , Kir k A. J oh ns on , Jua n P. G al va n Rac ke te er in g 18 U. S. C. § 1 96 2 2 Mar k Cr aw fo rd Boc hi cc hi o Joh n Cr aw fo rd Fra nc o Joh ns on Gal va n Rac ke te er in g Co ns pi ra cy 18 U. S. C § 19 62 (d ) 3 Mar k Cr aw fo rd Boc hi cc hi o Joh ns on Mur de r in A id o f Ra ck ete er in g 18 U. S. C. § 1 95 9( a) (1 ) 4 Mar k Cr aw fo rd Boc hi cc hi o Joh ns on Kid na pp in g in A id o f Rac ke te er in g 18 U. S. C. § 1 95 9( a) (1 ) 5 Mar k Cr aw fo rd Joh n Cr aw fo rd Har ry E . Cl if t Con sp ir ac y 18 U. S. C. § 3 71 6 Mar k Cr aw fo rd Joh n Cr aw fo rd Cli ft Emb ez zl em en t fr om a n Emp lo ye e We lf a re Ben ef it P la n 18 U. S. C. § 6 64 7-1 3 Mar k Cr aw fo rd Joh n Cr aw fo rd Cli ft Wir e Fr au d 18 U. S. C. § 1 34 3 14- 16 Mar k Cr aw fo rd Joh n Cr aw fo rd Cli ft Mon ey L au nd er in g 18 U. S. C. § 1 95 6 17 Mar k Cr aw fo rd Obs tr uc ti on o f Ju st ic e b y Ki ll in g a Wit ne ss 1 8 U. S. C. § 15 12 (a )( 1) (C ) 7 8 9 10 1:9 6-cr-5 127 D ocs. 1, 24, 88. 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 27 1 2 3 Cou nt Def en da nt Cha rg e 18 Mar k Cr aw fo rd Obs tr uc ti on o f Ju st ic e b y Re ta li at i on aga in st a W it ne ss ( Mu rde r) 18 U. S. C. § 1 51 3( a) (1 )(B ) 19 Mar k Cr aw fo rd Thr ea te ni ng t o Co mm it a Cr im e of Vio le nc e ag ai ns t an I ndi vi du al 18 U. S. C. § 1 95 9 20 Mar k Cr aw fo rd Per ju ry b ef or e a Gr an d J ur y 18 U. S. C. § 1 62 3 21 Mar k Cr aw fo rd Per ju ry b ef or e a Gr an d J ur y 18 U. S. C. § 1 62 3 22 Mar k Cr aw fo rd Per ju ry b ef or e a Gr an d J ur y 18 U. S. C. § 1 62 3 23 Joh n Cr aw fo rd Per ju ry b ef or e a Gr an d J ur y 18 U. S. C. § 1 62 3 24 Boc hi cc hi o Per ju ry b ef or e a Gr an d J ur y 18 U. S. C. § 1 62 3 25 Boc hi cc hi o Per ju ry b ef or e a Gr an d J ur y 18 U. S. C. § 1 62 3 26 Fra nc o Per ju ry b ef or e a Gr an d J ur y 18 U. S. C. § 1 62 3 27 Fra nc o Per ju ry b ef or e a Gr an d J ur y 18 U. S. C. § 1 62 3 28 Mar k Cr aw fo rd Boc hi cc hi o Joh n Cr aw fo rd Joh ns on Gal va n Cri mi na l Fo rf ei tu re 18 U. S. C. § 1 96 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Doc. 88. Count On e of t he sec ond s uperseding indictment ch arged the foll owing predic ate r acketeering acts: 28 1 2 3 RIC O Ac t Def en da nt Cha rg e 1 Mar k Cr aw fo rd Joh n Cr aw fo rd Emb ez zl em en t 18 U .S .C. § 6 44 2 Mar k Cr aw fo rd Joh n Cr aw fo rd Wir e Fr au d 18 U .S .C . § 1 34 3 3 Mar k Cr aw fo rd Joh n Cr aw fo rd Mon ey L au nd er in g 18 U. S. C. § 1 95 6( a) (1 )(B )( i) 4 Mar k Cr aw fo rd Joh n Cr aw fo rd Mon ey L au nd er in g Co ns pir ac y 18 U. S. C. § § 19 56 (a )( 1)( B) (i ), 1 95 6 (h) 5 Mar k Cr aw fo rd Joh ns on Con sp ir ac y to D is tr ib ute M ar ij ua na 21 U. S. C. § § 84 6, 8 41 (a) (1 ) 6 Mar k Cr aw fo rd Boc hi cc hi o Joh ns on Kid na pp in g an d Mu rd er Tex . Pe na l Co de A nn . §§ 7. 01 , 7. 02 , 19. 02 (b )( 3) , 19 .0 3( a) (2) , 20 .0 4 7-9 Boc hi cc hi o Wir e Fr au d 18 U .S .C . § 1 34 3 10- 12 Boc hi cc hi o Mai l Fr au d 18 U .S .C . § 1 34 1 13 Boc hi cc hi o Mon ey L au nd er in g 18 U. S. C. § 1 95 6( a) (1 )(B )( i) 14 Mar k Cr aw fo rd Boc hi cc hi o Joh n Cr aw fo rd Gal va n Fra nc o Wir e Fr au d 18 U .S .C . § 1 34 3 15 Mar k Cr aw fo rd Boc hi cc hi o Joh n Cr aw fo rd Gal va n Fra nc o Mon ey L au nd er in g 18 U. S. C. § 1 95 6( a) (1 )(B )( i) 16 Mar k Cr aw fo rd Boc hi cc hi o Joh n Cr aw fo rd Gal va n Fra nc o Mon ey L au nd er in g Co ns pir ac y 18 U. S. C. § § 19 56 (a )( 1)( B) (i ), 1 95 6 (h) 17 Mar k Cr aw fo rd Ban kr up tc y Fr au d 18 U. S. C. § 1 96 2 (d) 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 1 2 Id. 3 4 5 On July 27, 19 98, de fenda nt Mark Crawford was arr aigne d on the s econd superseding indictment and pleaded not g uilty. Doc. 103 . 6 7 8 9 10 11 12 L. Petition er s R epresentation During the Federal Tr ial. Fresno A ttorne y E. M arsha ll Hodgkins was initiall y appointe d by t he dis trict court to represent Craw ford in the federal case. Crawf ord s pecifically requested th at May be appointe d to r eprese nt hi m as well. Doc. 55. At a he aring 13 on March 3, 19 98, Ho dgkin s represented that, in h is 20 years 14 of pract ice, t his wa s the most compl ex cas e ... [he h ad] 15 ever han dled. 16 15 at 4. Hodg kins a lso r equested that May be app ointe d co- counsel. May agreed to s erve as lead counsel, wi th Ho dgkins 17 18 19 20 21 Peti tioner s Reply, Doc. 7, Exhibit ( PRX ) serving the fu nction of l ocal counsel. Id. at 6. May agreed, repres enting that he knew so much about the c ase, it would ta ke for ever for me to tell anyone else eve rythi ng I 22 know abo ut it. ... 23 of recor d and tria l counsel, while Hodgk ins wa s app ointed 24 local c ounsel to assis t May at his direc tion. 25 1-3, 5, 7. 26 27 28 Id. a t 6-7. May was ap pointed at torn ey PRX 16 at In March 1999, Hodgkins withdrew as counsel for Crawford . See Doc. 250. In April 1999, approximately two 30 1 2 3 4 months b efore trial, Roge r Litman was appointed t o rep lace Hodgkins . PRX 3, Li tman 6/20/03 Depo., at 6-7. Litman was wary of accept ing an appo intment in such a complicated case 5 so close to tr ial, b ut Ma y told him not to worry abou t 6 having e nough time t o get up to speed because the case was 7 going to be co ntinue d.... 8 appointm ent in large part based on May s assurance tha t the 9 10 11 12 Id. at 7-8. trial wa s goin g to b e con tinued. Litman accept ed the Id. at 8. On June 7, 199 9, a f ew we eks prior to the schedul ed trial, t he dis trict court held a hearing to consi der m otions 13 in limin e. 14 court a teleph one co nvers ation he had with May that mo rning 15 in which May h ad sai d tha t because of May s finan cial 16 situatio n, th ere is no w ay [ May] could be [in Fresno] for 17 two or t hree m onths, havi ng to pay the hotel, hav ing t o pay 18 19 20 21 Ma y fail ed to appear. Litman relayed to t he for the ongoin g oper ation of his office in Corpus Chri sti without, and t he wor ds he use were, going broke. PRX 21, Reporter s Tra nscrip t of 6/7/99 Proceedings, at 16. May also 22 told Lit man th at eve n assuming the h ousing situation could 23 be worke d out so tha t he wasn t in a position where he was 24 going to be go ing br oke, that [May] felt th at he could not be 25 fully pr epared to re prese nt Crawford without a 30 -day 26 27 28 continua nce of the t rial. continua nce wa s deni ed. Id. at 22 . Id. at 22. 31 The request fo r a 1 2 3 This lef t Litm an wit h, in his opinion, insufficie nt ti me to adequ ately prepar e for trial: [W]hen I got onboard , Mr. May had assured me the case was going to be continued, and I d hav e sufficie nt time to b e properly prepared .... And in fact, wh en he sent m e in there, I ll say as his sacrific ial lamb, to make and unsupported request for a co ntinuance, t hat was ... I won t say summaril y rejected, but rejected and denied by th e court be cause it was without legal or factual bas is, um ... I started won dering, what am I getting int o. 4 5 6 7 8 9 10 11 12 PRX 5, L itman 2/24/0 6 Dep o., at 173. Litma n believes that he was dup ed by May on the issue of the continuanc e. 175. Id. at Li tman d id not rais e his concerns about ina dequa te time 13 to prepa re wit h the court nor with anyone else. By th en, the 14 case had been pendin g for three years, and May ha d bee n in 15 the case as at torney of r ecord for over one year and t hree 16 months. 17 18 19 M. Disposit ion of the F edera l Trial. The jury trial began on J une 23, 1999. Doc . 368. 20 August 2 0, 199 9, the jury convicted Petitioner of 21 On racketee ring, racket eerin g conspiracy , murd er in aid o f 22 23 24 25 racketee ring, kidnap ping in a id of racketee ring, consp iracy, embezzle ment f rom an empl oyee welfare benefit pla n, si x counts o f wire fraud , thr ee counts of money laund ering , 26 obstruct ion of justi ce by killing a witness, obst ructi on of 27 justice by ret aliation ag ainst a witn ess (m urder), 28 threaten ing to commi t a c rime of violence against a wi tness, 32 1 2 3 4 and thre e coun ts of perju ry. Doc. 462. Defendan t Kir k Johnson was co nvicte d of four counts: racketeerin g, racketee ring c onspir acy, murder in aid of racketeering , and 5 kidnappi ng in aid of rack eteering. 6 John Cra wford was co nvict ed of 14 counts, includi ng 7 racketee ring, racket eerin g conspiracy, wire fraud , mon ey 8 launderi ng and perju ry be fore a grand jury. 9 10 11 12 D oc. 45 8. Co -defe ndan t Doc. 460. Co- defendan t Fran k Boch icchi o wa s convicted of 3 cou nts, includin g rack eteeri ng, r acketeering conspiracy a nd pe rjury. Doc. 456 . Co- defend ant J uan Galvan was acq uitted. Do c. 4 64. 13 Petition er, Jo hnson, Boch icchio, and John Crawfor d app ealed. 14 Docs. 56 1, 716 , 721, 750. 15 the Cour t of A ppeals . 16 17 18 All convictions were a ffirm ed by On June 19, 20 00, Cr awfor d was sentenced to life imprison ment a nd was orde red to pay restitution i n the amount of $1.2 millio n. Se e Doc . 71 5. 19 20 21 22 23 24 25 IV. STANDARD OF DECISION. To estab lish a n inef fective assistanc e of c ounsel clai m, Petition er mus t show : (1) the representation was defic ient, falling below an ob jecti ve standard of reasonabl eness ; and (2) the defici ent pe rform ance prejudiced the defe nse. 26 Strickla nd v. Washin gton, 466 U.S. 668, 687 (1984 ); Be ll v . 27 Cone, 53 5 U.S 685, 6 95 (2 002) (both d eficient performa nce and 28 prejudic e to d efenda nt re quired to render the res ult o f a 33 1 2 3 4 proceedi ng unr eliabl e). The Court need not evalu ate b oth prongs o f the Strick land test if the petitioner f ails to establis h one or the othe r. Strickla nd, 466 U.S. at 6 97; 5 Cooper-S mith v . Palm ateer , 397 F.3d 1236, 1294 n. 38 (9th Cir. 6 2005). 7 Under th e firs t pron g, Pe titioner must show that 8 counsel made errors so s erious that counse l was not 9 10 11 12 function ing as the couns el guaranteed the defendant by the Sixth Am endmen t. S trick land, 466 U. S. at 687. A co nvic ted defendan t maki ng a c laim of ineffective assistanc e mus t 13 identify the a cts or omis sions of counsel that ar e all eged 14 not to h ave be en the resu lt of reasonable profess ional 15 judgment . 16 performa nce re quires that every effort be made to elim inate 17 the dist orting effec ts of hindsight, to reconstru ct th e 18 19 20 21 Id . at 6 90. A f air assessment of attorne y circumst ances of cou nsel s challenged conduct, an d to evaluate the c onduct of c ouns el s per forman ce at the t ime. Id. at 6 89. T he proper i nqui ry is whether, in light of all 22 the circ umstan ces, t he id entified acts or omissio ns we re 23 outside the wi de ran ge of professionally competen t 24 assistan ce. 25 deferenc e to c ounsel s ju dgme nts, an d mus t indulge a strong 26 27 28 Id. T he court must apply a heavy measu re o f presumpt ion th at cou nsel s conduct [fell] within the wide range of reaso nable profe ssional assistance. 34 Id . at 690- 1 2 3 4 691. I t is a ll too temp ting for a defendant to secon d-guess counsel s assi stance after conviction or adverse sentence, and it i s all too ea sy fo r a court, examining cou nsel s 5 defense after it has prov ed unsuccessful, to conc lude that a 6 particul ar act or om issio n of counsel was unreaso nable . 7 at 689. 8 defense counse l coul d hav e pursued, but rather wh ether the 9 10 11 12 Id. The releva nt in quir y under Strickland is not wha t choices made b y defe nse c ounsel were reasonable. Siripongs v. Calde ron, 1 33 F.3d 732, 736 (9th Cir. 1988). A decisi on to waive or no t pursue an issue where there 13 is littl e or n o like lihoo d of success and concent rate on 14 other is sues i s indi cativ e of competence, not 15 ineffect ivenes s. Se e Miller v. Keeney, 882 F.2d 1428, 1434 16 (9th Cir . 1989 ). Si milar ly, while a lawyer is un der a duty 17 to make reason able i nvest igations, co unsel may make a 18 19 20 21 reasonab le dec ision that particular investigation s are unnecess ary. Strick land, 466 U.S. at 691. Trial coun sel are also per mitted wide discr etion in their tactical decis ions. 22 See Unit ed Sta tes v. Ferr eira-Alameda , 815 F.2d 1251, 1254 23 (9th Cir . 1986 ); Uni ted S tates v. Appoloney, 761 F.2d 520, 24 525 (9th Cir. 1985). 25 in light of al l the circu mstances and from counse l s 26 27 28 A c ourt must measure counse l s conduct perspect ive at the t ime o f trial. Id. at 688-89. To meet the pr ejudic e req uirement, the petitioner must 35 1 2 3 4 demonstr ate th at err ors actually had an adverse effect on the defe nse. Stric kland , 466 U.S. at 693. It is [also] not enou gh for the d efend ant to show that the err ors h ad some 5 conceiva ble ef fect o n the outcome of the proceedi ng. 6 Virtual ly eve ry act or o mission of c ounsel would meet that 7 test, an d not every error that conceivably could have 8 influenc ed the outco me un dermines the reliability of t he 9 10 11 12 result o f the procee ding. Id. Id. The defen dant must s how that the re is a reas onabl e pr obability that, but for counsel s unpr ofessi onal errors, the result of the proceeding 13 would ha ve bee n diff erent . A reasonable probabili ty is a 14 probabil ity su fficie nt to undermine confidence in the 15 outcome. Id. at 694 . 16 V. 17 18 19 20 21 22 23 A. ANALYSIS Credibil ity Is sue. During t he cou rse of the federal trial, May submi tted three Cr iminal Justi ce Ac t ( CJA ) forms, on Sept ember 30, 1998, Ja nuary 23, 19 99, a nd September 22, 1999. The a mounts claimed on tho se for ms we re $29,067.76, $10,033.0 0, an d 24 $62,164. 64, re specti vely, for a total of $1 01,265 .40, as 25 payment for Ma y s ti me (a t $75.00/hour) and reimb ursem ent for 26 pre-tria l and trial expen ses. 27 checked No i n a bo x tha t asks: Has the person repre sented 28 On eac h of those forms, May paid any money to yo u, or to your knowledge to anyone else, 36 1 2 3 4 in conne ction with t he ma tter for which you were appoi nted to provide repres entati on. Doc. 937-2, 937-3 & 937 -4. It is un disput ed tha t at the time May applied for CJA 5 funds as appoi nted c ounse l, Petitioner s son-in-law, T om 6 Henry, w as len ding May $7 ,500.00 a mo nth pl us addition al 7 funds to upgra de his hote l room to accommodate co urt f iles. 8 PRX 1, M ay 2/2 0/04 D epo., at 61. 9 10 11 12 May asserts that he informed the c ourt a dmini strator s office of the arran gement with Hen ry. I d. at 61-62. Petition er arg ues th at Ma y s false represe ntations to 13 the cour t on t he CJA form s undermine May s credib ility . 14 maintain s that he di d not advise the court of the se pa yments 15 on the C JA for ms bec ause those were loans. 16 Depo. 67 . 17 understa nding that May w ould pay [him] back afte r tri al. 18 19 20 21 May May 10/3 1/05 Hen ry con firms tha t he and May had an PRX 7, T . Henr y Aff. May , wh o eventually d eclared bankrupt cy, ad mits t hat h e has never repaid any o f the se loans, b ut doe s not discl aim Henry s right to col lect. Ma y 22 10/31/05 Depo. , at 6 5, 67 . 23 understa nding betwee n May and Henry that the loan s wou ld not 24 be repai d and Henry has n ot said otherwise. 25 under t he tab le pa yment s for May s representati on of 26 27 28 Crawford . There was no quid pro quo Thes e wer e not May s con duct in connection with the CJA submissi ons an d the loans from Henry do not under mine his 37 1 credibil ity. 2 3 4 5 6 7 8 9 B. Tactical Decis ions o f Cou nsel. Three of Petit ioner s arg uments can be desc ribed as challeng es to tactic al de cisions made by May duri ng th e federal trial. Petitioner contends that May was ineffective because he (1) faile d to call William Noel as a w itnes s; (2) failed t o offe r Peti tione r s son s school a ttendance r ecords 10 at trial ; and (3) fa iled to object to the prosecu tor s 11 referenc e to P etitio ner s son s schoo l attendance in c losing 12 argument . 13 14 15 16 The gove rnment maint ains that these decisions wer e tactica l tria l decisions which, as exercises of trial strategy , cann ot for m the basis of an ineff ective assi stance 17 of couns el cla im und er a long line of precedent. 18 Olivarez , 292 F.3d 9 39, 954 (9th Cir. 2002) (failure to 19 present eviden ce to a jur y does not amount to ine ffect ive 20 assistan ce so long a s cou nsel s decis ion is strategica lly 21 reasonab le); L a Gran de v. Ste wart, 133 F.3d 1253, 1275 (9th 22 23 24 25 Manc uso v. Cir. 199 8) (fa ilure to cr oss-examine witnes ses does not necessar ily am ount t o ine ffective assistance so l ong a s the decision is re asonab le); Clabourne v. Lewis, 64 F.3d 1 373, 26 1383 (9t h Cir. 1995) (exp laining that counsel s f ailure to 27 request a vol untariness instruction to the jury for an 28 insanity defen se amo unted to a tactical decision and d oes not 38 1 2 3 4 constitu te ine ffecti ve as sistance); United States v. Ferreira -Alame da, 81 5 F.2d 1251, 1254 (9th Cir. 1986)(co unsel s stip ulati on t o facts unknow n to him an d 5 failure to obj ect to evid ence does not necessaril y 6 demonstr ate in effect ive a ssistance); United States v. 7 Appolone y, 761 F.2d 520, 525 (9th Cir. 1985) (exp laini ng that 8 counsel s fail ure to raise objections on some issues is not 9 10 11 12 13 14 15 16 deficien t perf ormanc e and may be seen as re asonably strategi c). 1. Testimon y of William Noel. Petition er s p rimary contention is that May s failure to call Wil liam N oel as a wi tness in the federal tri al wa s ineffect ive as sistan ce. Petitioner maintains tha t thi s 17 failure was co mpound ed by May s opening sta tement , whi ch 18 stated t hat No el wou ld pr ovide critical testimony . 19 20 21 22 23 a. Sufficie ncy of Perfo rmance. Failure to pro duce a witn ess promised in opening statemen t may consti tute ineffective assistance o f cou nsel, if the p romise was s uffic iently specific a nd dramatic and 24 the evid ence o mitted woul d have been significant. 25 example, in An derson v. B utle r, 858 F .2d 16, 17 (1st C ir. 26 1988), p etitio ner st abbed his estranged wife nume rous times 27 after fi nding her wi th an other man. 28 For The jury had to determin e whet her pe titio ner committed firs t degree mu rder, 39 1 2 3 4 second d egree murder , or manslaughter. Id. Duri ng op ening statemen ts, De fense couns el told the jury that he woul d call a psychi atrist and a psyc hologist, whose testimon y wou ld show 5 that def endant was walking unconscio usly t oward a 6 psycholo gical no exi t.... Without feeling, withou t any 7 apprecia tion o f what was happening ... on that ni ght [ he] was 8 like a r obot p rogram med o n destruction. 9 10 11 12 13 were ava ilable to te stify . 18 19 20 25 26 27 28 In h is And I ha ve been sitt ing and listening with you as the fact s have been presented in this case, and I had inte nded to try and persuade you with fancy medical and clinical terminology. But there is no amount o f psychiatri c and psychological evaluatio ns that wer e going to p resent a better picture of wh at you have already hea rd. Why should you hear this evidence again from people who presume to know Br uce Anderson better than those who really do know him and test ified what t hey already know? At this poi nt was it r eally necess ary for me to try and impress you? 17 24 Neve rtheless, the def ense closing, couns el ack nowle dged the omission: 16 23 Id. rested t he nex t day witho ut calling the doctors. 15 22 Th is st atement was base d upon the d octor s reports possess ed by couns el, who 14 21 Id. Id. Pet itione r was convi cted of first degr ee mur der. The Firs t Circ uit no ted t hat, little is mo re dam aging than to fail t o prod uce i mportant evidence that h ad be en promised in an openi ng : This wou ld seem part icularly so here when the opening was only the day before, and the jurors h ad been ask ed on the vo ir dire as to their acceptanc e of psych iatric testi mony. The promise was dramati c, and the indicated te stimony strikingly significan t. 40 1 The firs t thing that the ultimately disappointed jurors w ould believe , in the absence of some othe r explanat ion, would b e that the doctors were unwillin g, viz., una ble, to live up to their billing. This they w ould not forget. 2 3 4 5 Id. 6 matter o f law. 7 8 9 10 11 Suc h circ umstances w ere found to be prejudi cial as a Id. at 1 8. Similarl y, in Ouber v. Gu arin o, 293 F .3d 19 (1st Cir. 2002), c ounsel promi sed f our times in his opening stat ement that def endant would test ify, and stated that def endan t s testimon y woul d be c entra l to the case: The case is going to come down to what happened i n that car and what yo ur findings are a s you listen to the cred ibility and the testimony of Todd Shea versus w hat your fin dings are as you listen to th e testimon y of [defend ant] Barbara Ouber. 12 13 14 15 Id. at 2 2. 16 persuade d the defend ant n ot to testif y. 17 First Ci rcuit descri bed t he error attributed to c ounse l as 18 19 20 21 On the evenin g of the first day of tr ial, counsel Id. at 24. T he consisti ng of two i nextr icab ly intertwined events: th e attorney s ini tial d ecisi on to present the petiti oner s testimon y as t he cen terpi ece of the defense (and his s erial 22 announce ment o f that fact to the jury in his open ing 23 statemen t) in conjun ction with his subsequent dec ision to 24 advise t he pet itione r aga inst testifying. 25 26 27 28 Id. a t 27. The Firs t Circ uit re jecte d the government s argument that def ense c ounsel s ac tion s were reasona ble strateg ic choices: 41 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Under or dinary circu mstances, that is true. It is easy to imagine that , on the eve of trial, a thoughtf ul lawyer ma y remain unsure as to whether to call the defendant a s a witness. If such uncertai nty exists, however, it is an abe cedarian princ iple that the lawy er must exer cise some degree of circumsp ection. Had the petitioner s counsel temporiz ed-he was under no obligation to make an opening statement at all, much less to open befor e the pros ecution pres ented its case, and, ev en if he chose to open, he mo st assuredly did not have to commit t o calling hi s client as a witness-this would be a dif ferent case. See Phoenix v. M atesan z, 233 F.3d 77, 85 (1st Cir . 2000) (finding no ineffect iveness wher e, in the absence of an expre ss promise, counsel cho se not to call a potentially importan t witness). Here, ho wever, the c ircumstances were far from ordinary . The petiti oner s counsel elected to mak e his open ing statemen t at the earliest possible ti me. He did n ot hedge his bets, but, rather, act ed as if he had n o doubt abou t whether his client should testify. In the cour se of his opening statement, he promised , over and o ver, that the petitioner woul d testify and exhorted the jurors to draw their ultimate conclusions based on her credibili ty. In fine, th e lawyer str uctured the entire defense around t he prospect of the petitioner s tes timony. In the e nd, however, the petitioner s testi mony w as not fort hcoming. Des pite the fact that the lawyer had call ed the petit ioner to the stand in both prior trials, he did a com plete about-face. The l awyer states i n his affida vit that he only realized tha t keeping his client o ff the witness stand was an option a fter the fir st day of trial. This realizat ion came muc h too late. Indeed, the attorney s del ayed reaction is sharply reminiscen t of the s ituation in Anderson, in which we observe d that eve n if it was ... wise [not to have the witness testify] bec ause of the damaging collater al evidence , it was ine xcusable to have given the matter s o little tho ught at t he outset as t o have made the opening pro mise. Id. at 2 8-29. Take n alone, each of [couns el s] decisions, 42 1 2 3 4 emphasiz ing de fendan t s t esti mony during th e opening statemen t and convin cing defendant not to testify , ma y ha ve fallen w ithin the br oad u nive rse of acceptable profess ional 5 judgment s. Tak en tog ether , however, they are inde fensi ble. 6 Id. at 2 7. 7 The Seve nth Ci rcuit found ineffective assistance in 8 Harris v . Reed , 894 F.2d 871, 873-74 (7th C ir. 1990), a 9 10 11 12 murder c ase in which two eye witnesses iden tified someone other th an def endant runn ing away from the scene of th e crime. That i ndivid ual b ecame the prime suspect until more 13 than a m onth a fter t he sh ooting, when another inf orman t 14 indicate d that he heard t he g unshot and the n saw the 15 defendan t run to his car, get inside, and drive away. 16 873. 17 defendan t to t he mur der s cene. 18 19 20 21 22 23 Id. at Th is inf ormant was the only witness connect ing Defense counsel t old t he jury about th e eye witnes ses a nd the other suspect dur ing o pening statemen t, but , with out h aving interviewed the ey e-witnesses or consu lting with d efend ant, counsel decided not to c all either e ye wit nesses duri ng the trial. Id. at 87 4. The Seve nth Ci rcuit found that the eye witnesses 24 impartia l test imony would have been credible and signi ficant, 25 in that it wou ld have dis credited the infor mant s vers ion of 26 27 28 the even t. Id . at 8 77-78. Counsel o ffered no strateg ic reasons for no t call ing t hese witnesses. 43 Id. at 878. Under 1 2 3 4 the circ umstan ces, t he Se venth Circuit concluded that counsel s ove rall p erformanc e, including his decision not to put on a ny wit nesses in s upport of a viable theor y of 5 defense, falls outsi de th e wide range of professi onall y 6 competen t assi stance . 7 counsel s deci sion t o rest without presenting the eye 8 witnesse s to s upport the alternative suspect theo ry. 9 10 11 12 Id. Harris found prejudice in This left th e jury free to be lieve [the i nforma nt s] account of the inci dent a s the only account. In fact, couns el s open ing primed t he jur y to h ear a different version of th e inc ident. 13 When cou nsel f ailed to pr oduc e the witnesse s to suppor t hi s 14 version, the j ury li kely concluded that counsel c ould not 15 live up to the claim s mad e in the opening. 16 17 18 19 20 21 Id. at 879. In contr ast, w here t he pr omise is more general in nature, and/or where the testimony to be pr ovided would not be signi ficant or wa s eli cited through other mean s, co urts may defe r to c ounsel s re ason able decision to change c ourse. For exam ple, i n Unit ed States v. McGill, 11 F.3d 223, 227 22 (1st Cir . 1993 ), def ense counsel told the jury du ring his 23 opening that h e woul d cal l a firearms expert. 24 decided not to call the e xpert after learning he could be 25 easily i mpeach ed. 26 27 28 I d. Co unsel later I n ad dition, counse l suc ceeded, by dint of skillf ul cro ss-examination of the p rosecution s firearms exper t, in elici ting much the same opini on ev idence 44 1 2 3 4 that he hoped to est ablis h through his own expert . Id.; see also Yeb oah-Se fah v Ficco , 556 F.3d 53, *77-78 (1 st Ci r. 2009) (n o inef fectiv e ass istance where counsel s general 5 promise that j ury wo uld h ear from psychologists and 6 psychiat rists. .. abo ut th e medical affects [sic] of 7 [petitio ner s] medic ation wa s not an explicit promise to 8 produce a part icular witn ess, and psychologist an d 9 10 11 12 psychiat rist d id tes tify (for the government) abo ut petition er s m edications and his ment al cap acity at the time of the c rime); Unite d Sta tes ex rel. Schlager v. Washington, 13 887 F. S upp. 1 019, 1 026-27 (N .D. Ill. 1995), aff d, 11 3 F.3d 14 763 (7th Cir. 1997) (even though counsel indicate d dur ing 15 opening that d efenda nt wo uld testify, counsel and clie nt s 16 reasonab le str ategic deci sion to withhold such te stimo ny did 17 not amou nt to ineffe ctive assistance). 18 19 20 21 Whether May ac ted ap propr iately is evaluated by the nature o f the promis e(s) made during his op ening state ment . Crawford s pri ncipal defe nses to the murder charge wer e (1) 22 that Cra wford had an alib i and (2) that a key gov ernme nt 23 witness, Mike Beckco m, fr amed Crawford. 24 Crawford s Ope ning S tatem ent, at 258: 23-259 :4 ( Mark C rawf ord 25 couldn t have killed Nick Brueggen because he was n t on 26 27 28 PRX 23, M. Jacoby L ane... . In a dditi on to that, we are going to s how you that Mik e Beck com is part of a scheme to frame Ma rk 45 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Crawford . ). In ope ning, May discussed Wil liam Noel s connecti on to these defen ses: What els e are we goi ng to show you? Well, very importan t test imony is go ing to come from a man named Wi lliam Noel, and this is a person that was arrested the same ni ght the body of Nick Brueggen was foun d. How does this tie in? When William Noe l was arre sted, he had with him a briefcase and in the briefcas e was Nick Brueggen s wallet, his checkbook, a lot of personal it ems and all the things that w ere supposed ly on Nick B rueggen when he would have be en murdered . It s all i n Wil liam Noel s possession. William Noel is arre sted after he excites the ire of a neighb orhood dog. William Noel an hour earlier had gone to the poli ce station and asked, Where is Mark Crawford s house, how do I get there? Noe l is given instruc tions because, remember, M ark Crawford was the mayor an d the poli ce would hav e known where he lived. He s headed i n the direct ion of Mark Crawford s house. He s got a briefcase with him with all of N ick Brueggen s pos sessio ns in it. And when William No el gets arr ested, he s quest ioned by police. T he pol ice let him go as a resu lt of his agreement to cooperate against Mark Crawfor d. His firs t story he t ells he recants, then changes the stor y again. He gets called as a witness by Mark Cra wford, by th e state once, and he s called on the seco nd occasion. On the second occasion that Mr. Noel is called as a witness, and Mr. Noel will be here as a witness in court, Noel will tell you th at the reas on that he h ad the briefcase that night i s because Mike Beckcom called him on the phone, tol d him to c ome over the re and get the briefcase and told him to go plant the brie fcase at Mark Crawford s old house so t hat whenever the body is recovere d remember the body is getting recovere d on this same night, the news media is already out there, i t s al ready on th e news Mr. Noel or at least yo u could driv e by and see that there is news media an d everything , Mr. Noel, pursuant to Mike Beckcom s instructio ns, was taking the briefcase over to Mark Crawfor d s h ouse to plant the last piece of evidence to put together the murder fram e 46 1 2 3 4 5 6 7 8 9 10 11 12 on Mark Crawford. Noel tes tifies that, in f act, Beckcom planned to kill Nic k Brueggen a nd we can ask, you know and William Noel, incide ntally, is no angel. He s [sic] certainl y is an ex c onvict. He s cur rently in prison f or a terribl e rape that he committed afte r he was r eleased by l aw en forc ement and afte r he agreed t o testify ag ainst Mr. Crawford, but he ha s importan t testimony about his involvement with Ma rk Crawford . So when I say Mark Crawford was framed, at least on e of the wit nesses will testify that he particip ated in that conspira cy to frame him. Id. at 2 62:14- 264:8. Thi s is a specific, a nd lengthy descript ion th at Noe l wou ld be a witness. It sug gests that Noel wou ld tes tify i n sup port of the defense theo ry th at Mark 13 Crawford was f ramed for t he murder. 14 F.2d at 17 ( d ramati c pr omis e of strikingly signific ant 15 evidence ) with McAle sse v . Ma zurkiewicz, 1 F.3d 159 (3 rd Cir. 16 1993) (o pening was caref ully worded recita tion o f evi dence 17 the defe ndant did pr oduce )(e mphasis added). 18 19 20 21 Compar e Anderson, 858 Neverthe less, May di d not subpoena Noel, wh o neve r testifie d in t he fed eral trial. Noel in his op ening state ment? Why, then, did M ay me ntion As a genera l rule, fai ling to 22 call a w itness will not a mount to ineffective ass istan ce of 23 counsel if the decis ion i s a reasonable tactical choic e ba sed 24 on adequ ate in quiry. 25 1033 (9t h Cir. 1997) (fai lure to call three witne sses who 26 27 28 Ger laug h v. Stewart, 129 F.3d 10 27, could ha ve rel ated m itiga ting sentencing evidence was a reasonab le tac tical decis ion; counsel reasonably belie ved 47 1 2 3 4 5 6 testimon y coul d back fire) . However, an attorney s bas is for not call ing a witnes s can be unreasonable if it i s not supporte d by o bjecti ve ev idence. Ala cala v . Woodford, 334 F.3d 862 , 871 (9th C ir. 2 003). May main tains that h e exp ected Noel would be a 7 governme nt wit ness. 8 also exp lains that h e mad e up his mind not to cal l Noe l after 9 10 11 12 PRX 1, May 2/20/04 Depo., at 49-50. the conc lusion of Ma rk Cr awford s San Anton io trial. May 11/3 1/05 D epo., at 98 . May PRX 2, However, objective evidenc e contradi cts Ma y s as serted belief tha t the government would 13 call Noe l as a witne ss. 14 pretrial witne ss lis t, PRX 22, nor di d the government mention 15 Noel in its op ening state ment. 16 internal defen se wit ness list prepared at May s d irection by 17 the inve stigat or app ointe d for Crawford. 18 19 20 21 Noel was not on the gove rnmen t s 6(B), at 5 (D. Cordi s Aff .). In contrast, Noel was on the PRX 6 ¶ ¶ 4-5 & Exh. This defense witnes s lis t was prepared after May g ave h is o pening stateme nt. Id. At the s ame ti me, May s a sser tion that he never intended 22 to call Noel a s a wi tness in the federal trial is supp orted 23 by signi ficant objec tive evidence. 24 some exc ulpato ry tes timon y at Crawford s state murder trial. 25 Specific ally, Noel t estif ied that Beckcom instruc ted N oel to 26 27 28 Noel arguably prov ided leave Br ueggen s bri efcas e at Mark Crawford s hou se. PRX 28, W. Noel s Dec. 1997 testi mony in Texas v. C rawford, A- 96- 48 1 2 3 4 0062-CR, at 12 17-121 8. F urth er, Noel testi fied in the state trial th at Noe l hims elf h ad wanted to kill Nick B ruegg en, and that, up on lea rning this, Mark Crawford got kind of upset 5 with Noe l. 6 indicati ng tha t he w ould have testified to these facts in the 7 federal trial if he had b een subpoenaed. 8 statemen t. 9 10 11 12 Id . at 1 178-1181. Noel signed a statement PRX 10, W. Noel It is in disput able, howev er, that Noel had serious credibil ity pr oblems as a witness in the state tr ials, credibil ity pr oblems that undoubtedly would have been 13 emphasiz ed and explo ited by the prosecution in th e federal 14 trial. 15 was a wi tness for th e sta te against Petitio ner. 16 2/20/04 Depo., at 7- 8. 17 May in t he sec ond st ate t rial, Noel stated that i f May paid 18 19 20 21 22 23 24 25 26 27 28 During the f irst and second state court trials , Noel GX A, May D uring cross-examination of No el by him enou gh mon ey, he woul d have testified for Cra wford rather than the State of Texas, id. at 8, confirming his tes timony was for sale t o the highe st bidder. May stated a t his February 20, 2 004 de posit ion: Mr. Noel was an extr aordinary witness in a - in that trial. He just basi cally got up there and said h e testifie d for the hi ghest bid der, whoever t hat would have bee n. So, when we began th e trial in California, in opening statement I wanted the jury to know about what it was that was said by - or sai d by Noel to the dete ctives and, more particularly, the circumst ances of Mr. Noel s a pprehension with the 49 1 2 3 4 5 6 7 8 9 10 briefcas e of Mr. Bru eggen. Calling Mr. Noel as a witness myself was never an option. He had writt en a letter to Mr. Crawford t hat I had se en in which Mr. Noel asked me to go to th e prison t o tell him w hat he was supposed to say in the tria l so he coul d be a good defense witness f or Mr. Craw ford. And, obv iously, I di dn t feel like I could truthful ly put Mr. N oel on the stand as a witness without suborning pe rjury, so I ruled him out as a witness. And I had made that decision real ly at the beginnin g of the tri al, that I would never call N oel as a wit ness. 11 Q. Alri ght. Did yo u communicate these - your concerns to Mr. Craw ford? 12 A. Yes, I did. Q. - Was this before the trial or during the trial or 13 14 15 16 17 18 A. It w as actually both. We discussed subpoenaing him to g et him down there for the trial, and I explaine d to him the things - I just said i t now and told him that I woul d never call Noel as a witnes s because of the perju ry problem. I didn t t hink Noel would te ll the truth . 19 GX A, at 8-9. 20 call a w itness whose test imony he knew would be p erjur ious. 21 Noel had alrea dy tes tifie d inconsistently for and agai nst 22 23 24 25 Defense counsel had an ethical dut y not to Mark Cra wford in sta te co urt, and fatally comprom ised his believab ility by con firming his testi mony w as for sale . Noel wro te a l etter to pr osecutors prior to the f edera l 26 trial in which he ex pressly implicate d Craw ford in the murder 27 of Nick Bruegg en. 28 letter, Mr. No el out lined the structure of The Family and G X D, 1:02-cv-06498, Doc . 4-5. 50 In the 1 2 3 4 5 Mark Cra wford s role in t he m urder of Nick Brueggen. This letter w as pro duced in pr e-trial discovery and re viewe d by Mr. May. In addit ion, N oel ha d pri or f elony convictions, 6 includin g an a ggrava ted r ape conviction after he was r eleased 7 from pri son as a cooperat ing witness to tes tify for th e st ate 8 against Petiti oner. 9 10 11 12 Petition er emp hasize s tha t Mr. Litman had a very differen t unde rstand ing o f the defense team s pla ns wi th respect to cal ling N oel a s a witness: It was a given all 13 along th at Mr. Noel would be called, and I was under t he 14 belief t hat Mr . Noel was going to testify as a wi tness for 15 Mr. Craw ford. 16 During M r. Lit man s trip to Corpus Christi to prepare for 17 trial, M r. May empha sized the importance of Mr. Noel s 18 19 20 21 PRX 3, Litman 6/20/03 Depo. , at 2 3-24. testimon y to M r. Lit man: [W] hen I went to Corpus Chri sti, it was poin ted ou t to m e by Mr. May that [Noel] was an im portant witness. And w hen I was r eading the transcripts f rom t he 22 state tr ial, t hat -- he w as one of the witn esses whose 23 testimon y I ma de sure tha t I could locate a nd -- and r ead 24 that. 25 that Mr. May d irectl y and consistently asserted t hat N oel was 26 27 28 PRX 5, Litma n 2/24/06 Depo., at 221. Litman r ecalls an impo rtant witness for Crawford who would be call ed. PRX 3, L itman 6/20/0 3 Depo., at 22. 51 1 2 3 4 May asse rts th at he discu ssed the decision not to call Noel wit h Litm an. P RX 1, May 2/20/04 Depo. , at 50-51. Litman r ecalls no su ch co nversation: I nev er heard [May] 5 explain to Mr. Crawf ord, and he never explained t o me why Mr. 6 Noel was not c alled as a witness. 7 Depo., a t 23. 8 that May never issue d a s ubpoena for Noel. 9 10 11 12 13 PRX 3, Litman 6/20 /03 Litma n says that he was sho cked to le arn Id. a t 57. [T]he s hockin g point was that if he had no t subpoenae d [Noel] a nd yet made the o pening state ment t hat he was going to call him, t hat s what would have shocked me. Id. at 5 9. It is di fficul t to u nders tand why, based on Litma n s 14 expresse d conc ern an d shock at May s failure to call Noel 15 as a wit ness, Litman did nothing about it. 16 time dre w the matter to t he court s a ttenti on in camera, nor 17 to his c lient s. 18 19 20 21 Mr. L itman at no He did not file a motion under seal, did not conf ront M ay at any t ime during the more than six week trial, n or did he ti mely seek to address the matt er wi th the court in any o ther w ay. Nothing prevented Litman from 22 arguing for No el s t ransp ort to and attendance at tria l in 23 Californ ia. 24 Litman s view of tri al st rategy was so contrary t o his co- 25 counsel s, he was fr ee an d had a duty to br ing the issue to 26 27 28 N oel wa s inc arce rated and avai lable. If the cour t s at tentio n by an ex parte motion to wi thdra w and/or f or an ex par te, in ca mera hearing w ith Crawfor d 52 1 2 3 4 present to dis cuss t he is sue of Noel with the cou rt. Given No el s o verwhelming credibility probl ems, likely perjury if he were p ermit ted to testify, an d sordid 5 backgrou nd, th e decision not to call Noel as a defense 6 witness was no t shoc king, nor was it ineffective assis tance. 4 7 One view of Ma y s tr ial t actics is that he sought to m ake the 8 best of the wo rst, b y in effect telling the jury what Noel 9 10 11 said and would say, witho ut the risk associated w ith a ctually putting Noel o n the stand . May was able to prese nt th e Noel 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 4 Pe ti ti on er r ep ea te dl y p oi nt s to M r . L it ma n s op in io ns a bou t th e imp ac t of M ay s f ai lu re to c al l Mr . No el a s a wi tn es s. Lit ma n te st if i ed: Q. Do y ou b el ie ve t ha t, as a n at to r ney , wh en y ou r ep re se nt to a j ur y wh at a w it ne ss is g oi ng t o s ay an d yo u do n t ca ll th at wit ne ss , th at , in f ac t, no t on ly i s it n ot s ou nd s tr at eg y b ut it s ac tu al ly d am ag in g p ot en ti al ly to yo ur c li en ts ca se ? A. Ab so lu te ly . I me an , a n op en in g s tat em en t is n ot e vi de nce , but r ea ll y th at s t he fi rs t ch an ce tha t a la wy er g et s to sp ea k wit h ju ro rs a bo ut t he th eo ry o f th e ca se a nd w ha t th e ev ide nc e is go in g to s ho w or n ot go in g to s h ow. And y ou k no w, a t th e cor e of r ep re s ent at io n of a c li en t is th e jur y ha vi ng t he b el ie f o r th e kn ow l edg e th at d ef en se c ou nse l, no ma tt er w ha t th e ev ide nc e, i s be i ng ca nd id w it h th em . Bec au se i t th ey i f you t el l th em cer ta in t hi ng s an d it do es not c om e ab ou t th at w ay or y ou g iv e th em , th e ju ro rs , th is is wha t th e ev id en ce i s goi ng t o sh ow tha t, t he n no t on ly d o t he y hea r th e ev id en ce t ha t i s ad ve rs e t o t he i nt er es ts o f th e cli en t, b ut t he n th ey re l oo ki ng i t ov er a nd s ay in g, Wa it a min ut e. T he a tt or ne y tol d me t he e v ide nc e wa s go in g to s how som et hi ng e ls e. Th is gu y or g al o r wh at ev er , la dy , is n ot a cre di bl e pe rs on a nd i t s n ot s om eb o dy wh o, w he n I he ar t hem spe ak a ga in , th at I m go in g to h av e co nf id en ce i n or r es pec t in. PRX 4 , Li tm an 1 1/ 10 /0 5 D ep o. , at 6 3 -64 :2 . B ut , in ef fe ct ive a ss is ta nc e of cou ns el o cc ur s wh en c oun se l s co nd u ct fa ll s b el ow a n ob jec ti ve s ta nd a rd of re as on ab le ne ss . Bro wn v . Or no s ki, 5 03 F .3 d 10 06 , 10 11 (9 th C ir . 200 7) ( em ph as is a dd ed ). C o- co un se l s su bj ec ti ve o pi ni on s a re n ot rel ev an t, a s he w as n ot of fe re d or qua li fi ed a s a st an da rd of c ar e exp er t. 53 1 2 3 4 framing defen se th rough his cross-examina tion o f Bec kcom and Kirk Johns on, wh ile a voiding the potential di saster Noel represen ted. Based on No el s testimony and condu ct, N oel was 5 an unpre dictab le and unre liable witness -- a veri table time 6 bomb. 7 The evid ence M ay did elic it regarding Noel and th e 8 framing theo ry sho wed t hat a law enforcement of ficer 9 10 11 12 stopped Noel n ear Mark Crawford s old resid ence at 1:3 0 a.m. on June 4, 199 6, the same night Brueggen s body was fo und. R.T. 374 4-45 ( Perkin s), 3 127-28 (Rive ra). After a search, 13 officers locat ed a b riefc ase containing Brueggen s dri ver s 14 license and ot her pe rsona l belongings. 15 (Rivera) . 16 the fra ming defens e dur ing his closing argument: 17 18 19 20 21 22 23 24 25 26 27 28 R.T . 3118 -3134 May empha sized these and other facts r elate d to When you found -- co mbine it with the other evidence now. He s dri ving t he ca r that Nick Brueggen was driving. He s using Nick Brueggen s t elepho ne. The body is found buried behind his building. And th e dead man s bri efcase with his wallet and personal possessi ons are in h is house. Pretty good case. Pretty g ood case. S o if you want to frame someon e -and, yo u know , the neat thin g about that case, it doesn t even take an ybody to testify. You know, it s a g ood plan because all you have to do is ca ll someone up on the te lephone with a quarter. And if you succ eed in getti ng them down there to drop of f the brie fcase at the righ t ti me where he didn t get caught b y the police , there you have it, nice and simple. Go look behind Mark s bui lding, there is a body there. W hen you arre st him, his son is going to b e driving Brueggen s c ar. Mark is using the telephone and the briefc ase is hidd en in his house, in his 54 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 garage t here, or in the attic. A person doesn t have to go do wn there. S o it s a great way to frame somebody . In fact, it s so obv ious, how many people c ould reasonab ly say that a murderer, one who is smart enough t o be head of a crime family, is going to do all this stuff to im plicate himself? It is absur d that any one would do that. When they found the bo dy out behi nd your hous e, you are going to get on th e telephon e and say, Noel, Noel, see if you can ge t the brie fcase down to my house so they can find t hat too. Do esn t make a ny se nse. Noel, why d on t you stop the police and ask them how to get to my house. Noel appare ntly isn t a brig ht lig ht. That part doe sn t make sense to anybody. But the briefcase was on the way to Mark Cr awford s house. It didn t get the re. And bec ause it didn t get ther e, you shoul d infer that somebody was beh ind the cons piracy to pl ant him with that piece of evidence . That s reasona ble to assum e. Now, if you believe that -- and see, incidentally, what are we doing he re? Do I have to prove that he was fram ed? Do I ha ve to prove who killed Nick Brueggen or why? No , I don t. What you are doing as juror s is you eva luate the government s proof for its qual ity, for how good it is. And you s ay to yourself , Am I convinced beyond a reasonable dou bt that Mar k Crawford i s guilty about this murder? Because what causes you reason for doubt in this case is that, in par t, because if he is getting planted with evidenc e, he s n ot guilty. You don t plant yo urself -- or plant pe ople with evid ence that are guil ty. You kno w, that s what you do to innocent people to f rame them. R.T. 430 9-11. 24 In this way, M ay was able to provide a basis for the 25 framing defens e, wit hout placing the highly impeachable, 26 27 28 disreput able, and in credi ble Noel on the stand. May m ade a reasonab le tac tical decis ion of trial strategy no t to call 55 1 2 3 4 Noel, av oiding the r isk N oel s sordid ness a nd incredibility would ad versel y tain t Cra wford s defense, a nd tur ned availabl e, cre dible evide nce into a defense that Crawf ord had 5 been fra med. Crawfo rd in effect was able to hav e his cake 6 and eat it too . 7 b. 8 Even ass uming, argue ndo, that May s a ctions -- pr omising 9 10 Lack of Prejudice. the jury he wo uld ca ll No el and then failing to p roduc e him - 11 - were u njusti fied, the q uestion stil l rema ins whether these 12 acts wer e prej udicia l to Mark Crawford s defense. 13 The time that elapse d bet ween the opening stateme nt an d 14 jury del iberat ions b ears on this inquiry. 15 defense rested the d ay af ter opening statem ents. 16 17 18 19 17. In And erson , the 858 F.2d at Cal iforni a v. S tanle y, 3 9 Cal. 4th 913, 955 (2006 ), distingu ishing Ander son in part on th e grou nd that the defense rested its g uilt phase case nearly three weeks after 20 deliveri ng an openin g sta tement promising testimony fr om a 21 police w itness who n ever materialized. 22 23 24 25 26 27 28 Here, Ma y gave his o penin g statement on June 24, 1999, Doc. 470 , and the ju ry be gan to deliberate on Aug ust 1 0, 1999, Do c. 437 , more than six weeks later. Any d anger that the jury had b een p rimed by May s o pening to hear a differen t vers ion of the incident, but then disappoin ted, Harris, 894 F. 2d at 879, or led to believe that d efens e 56 1 2 3 4 5 6 witnesse s coul d not live up to their billi ng in a manner they wo uld no t forg et, was minimized and dissipated by t he signific ant te mporal gap of over six weeks betwee n the opening statem ents a nd th e close of evidence. The evid ence o f guil t was overwhelming. Crawford kept 7 close co mpany with B ruegg en, John Crawford, Beckc om, a nd 8 other Fa mily m embers . 9 10 11 12 Th ey frequented the Compound, where they par tied, and tr avele d together to gamble and part y, and also did so in Missi ssipp i. They created and ope rated a number o f frau dulent busi nesses in Texas and Colo rado, from 13 which hu ndreds of th ousan ds of dollars of unlawfu l ins uran ce 14 premiums were genera ted a nd converted to finance their mutual 15 high ro lling life style s. 16 common i ncenti ve to elimi nate Brueggen, a snitch , wh o they 17 believed was c oopera ting against them with federa l 18 19 20 21 All the conspirators had a authorit ies, a nd who coul d ca use their criminal activi ties and prof its to be br ought to an end, as well as t heir ultimate prose cution for this extensive criminal wrong doing. 22 Petition er ign ores t he co nspiracy charges, his jo int a nd 23 concerte d acti vities with John Crawford, Beckcom, John son, 24 Brueggen , and Bochic chio, and the strong incentiv e to murder 25 Brueggen to pr eserve thei r ongoing criminal enter prise s and 26 27 28 avoid pr osecut ion. May s fa ilure to cal l Noe l as a witness was neith er 57 1 2 3 4 deficien t nor prejud icial . The petition is DENIE D on this ground. 2. Petition er s Alibi Defense. 5 a. 6 7 8 9 10 11 Failure to Present S chool Attendance Records Through Principal. In the f ederal trial , Pet itioner s two teen age sons testifie d they were with their father throughout the d ay of the murd er, Ma y 6, 1 999. school d ay. May 6, 1999 was a Monda y -- a A t the San A ntonio trial, May called the 12 principa l of t he boy s hi gh s chool to testi fy that nei ther of 13 Crawford s son s atte nded school that day. 14 11/31/05 Depo. , at 78. 15 16 17 18 19 See PRX 2, May May test ified at his depo sition that in the secon d sta te court tr ial, i mmedia tely before the principal tes tifie d, May noticed the bo y s at tendance records contai ned an inco rrect date. G X A, M ay 2/2 0/04 Depo., at 28. The state pros ecutor 20 did not notice the e rror, but May was so concerne d abo ut the 21 error th at he did no t men tion that alibi evidence duri ng his 22 closing argume nt to the j ury in the second state court trial. 23 Id. at 2 8-29. 24 25 26 27 28 When he began the federal trial, May made t he decision not to p ursue that a libi evidence because he was conce rned that the feder al pro secut ors would read the recor ds mo re carefull y and discov er th e error. 58 Id. May believed s uch an 1 2 3 4 5 error wo uld le ad to impea chment of the principal s tes timony. Id. Eve n thou gh he felt that petitioner s sons were t elling the trut h abou t thei r whe reabouts that day, May b eliev ed the records would contra dict their story. Id. at 82- 84. The tact ical d ecisio ns of trial counsel cannot fo rm th e 6 7 basis fo r a cl aim of inef fective assistance of co unsel , so 8 long as the de cision is strat egically reasonable. 9 10 11 12 292 F.3d at 95 4. Mancuso, Li tman suggests that May s purported strateg ic rea son f or not calling the prin cipal is a post hoc rati onaliz ation, beca use May never discussed this 13 strategi c deci sion w ith h im: 14 attendan ce rec ords I can just tell you that Mr. M ay ne ver 15 asked me to lo cate t hose, never showed those to m e, an d never 16 discusse d thos e with me. 17 40. 18 19 20 21 22 [A]s far as the sc hool PRX 3, Litman 6/ 20/03 Depo. , at Lik ewise, Litma n was una ware that the princi pal w as a potentia l witn ess an d stated that he and Ma y neve r dis cussed whether the pr incipa l wou ld testify in the Fresno tria l. PRX 4, Litma n 11/1 0/05 D epo., 4 at 88. Litman a lso op ined t hat M ay s purported strategic 23 decision was n ot obj ectiv ely reasonable, because the 24 principa l coul d auth oritatively resolve any contradiction or 25 ambiguit y in t he wri tten attendance record. 26 27 28 Id. at 91 . [Y]ou w ould . .. think th at the princ ipal w ould be a responsi ble pe rson, who d oesn t have a bias, who would be 59 1 2 3 4 cognizan t of w hen sc hool was in session and [sic] not, and have no reason whats oever to -- to fabricat e that fact . 5, Litma n 2/24 /06 De po., at 182. PRX But, Litman s i gnorance of 5 and/or d isagre ement with May s strate gic th inking does not 6 necessar ily re nder M ay s reas oning suspect. 7 Texas tr ial la wyer, who h ad twice tried Petitione r s s tate 8 murder c ase, a nd ser ved a s lead counsel in the fe deral case. 9 10 11 12 May was t he He recog nized substa ntial risk in the potential i mpeac hment effect o f the school atte ndance records on the pr incip al s testimon y. Ma y reas onabl y co ncluded that t he attendan ce 13 records, which conta ined an incorrec t date that coul d have 14 undermin ed the alibi defe nse if noticed by the go vernm ent, 15 were so potent ially harmf ul that it was not worth risk ing 16 putting the pr incipa l on the stand. 17 strategi c choi ce of exper ienced trial counsel. 18 This was an infor med The Peti tion i s DENI ED on this ground. 19 20 b. 21 22 Failure to Object to Prosecution s Referenc e to Petition er s S on s D uring Clo sing Arguments . Petition er als o cont ends that his attorneys shoul d have 23 objected durin g clos ing a rgument to the governmen t s 24 suggesti on tha t his sons were in school on Monday , May 6, 25 1996. 26 W hen as ked ab out t his allegation during hi s depositi on, Ma y test ified : 27 28 60 1 2 3 4 Q: There s als o the alleg ation that you did not object to the commen ts or statements made by the prosecut or regarding the testimony or lack thereo f of Mr. C rawford s childre n. Do you u nderstand what that com ment is abou t? 14 A: Yes, I do. And I remember that happening in t he trial. And I told M r. Mr. Litman was mak ing objectio ns during th e argument. That was my recollec tion, is tha t s o ne o f the things t hat I had him do, cause after I fi nished final argument, I was tire d. And I th ink this comment was made in the governme nt s final argument. It was not made in the opening statement. So I m sure it was Mr. Litman that was making thos e objections then. I remembe r the stat ement that h e made. And the only objecti on that I t hink might h ave applied had to do with th e I think he said some thing like it was Monday, it would ha ve been a sc hool day, they would have bee n in schoo l that day, and that s clearl y outs ide the record. But I do n t know if Mr. Litman object ed, and I do n t re call i f I o bjected. 15 Q: Okay. 16 A: But t hat s someth ing I mig ht not object to. 17 Q: Why is that ? 5 6 7 8 9 10 11 12 13 18 19 20 21 22 23 24 25 26 27 28 A: Well, you know, i t s first of all, the objectio n that you w ould make is outside the reco rd, which do esn t tell t he ju ry t he solution to the problem. It doesn t tell the jury th at thi s was a Monday o r that this was the 5th of May or whatever. When the judge susta ins it, even if he instructs them to disregard it , I don t think those instruct ions are ver y effective in final argument . And, in fact, an obj ection can add to the result of having t he jury pay too much attention to that particul ar aspect of the testimony and think that was some thing we wer e trying to slip by them. Whereas if you ignor e it, that s significan t real ly. It s jus t speculation over, well, maybe it was Monday, and it shoul d have been there. I didn t think it was that ef fecti ve w hen it was made, and it s not something I would have objected to in fi nal argument for those r easons. 61 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 GX A, Ma y 2/20 /04 De po., at 29-30. Litman c orrobo rated May s ass ertions, testifying durin g his depo sition : Q: With regard to th e closing where the government told the jury that t he boys were in school, any p art of the c losing argum ent, whose duty was it to obj ect to argum ent that s o utside th e evidence bet ween you and Mr. May? A: I wou ld say it wa s mine. Q: Did y ou even reco gnize that an obj ection should be enter tained at th at time? And I what I mean by that is based on lac k of familiarity with the cas e. A: I nee d to think b ack to um ... to the exact wording, but I think the argument was that they w ere probably in school. Q: I thi nk it was: Y ou kn ow these boys were in school. A: Uh hu h. It s a v ery t ouch y issue about arguing, you know objecting d uring a closing argument. An d unless i t is somethi ng significant, I usually don t do it. GX F, Li tman 2 /24/06 Depo ., at 283-284. The resp onsibi lity f or objecting was not May s, it was Litman s . Eve n if i t wer e May s, not objecting w as a reasonab le str ategic deci sion, agreed with by Lit man, to avoid em phasiz ing th e poi nt to the jury and any a dvers e impressi on cre ated b y int errupting opposing counsel s closing 26 argument . Jud icial revie w of a defense attorney s sum mation 27 and stra tegic choice s on objecting during closing argu ment is 28 highly d eferen tial, and doubly deferential when it is 62 1 2 3 4 5 6 7 8 conducte d thro ugh th e len s of federal habeas. Yarborough v. Gentry, 540 U. S. 1, 6 (2003) (per curiam). C. Preparat ion Fo r Tria l in Federal Court. Petition er s o pening brief alleges that May faile d to adequate ly pre pare f or tr ial. 5 It is undisp uted t hat t his was an e xtreme ly com plex criminal trial. The cha rges against 9 Mr. Craw ford c arried the potential for the death penal ty, and 10 the Unit ed Sta tes fi led a notice of its intention not to seek 11 that sen tence only s evera l weeks before trial. 12 Notice, dated June 9 , 199 9. 13 14 15 16 See Doc 334, Witnesses were locat ed ac ross the coun try, i n Californi a, T exas, Colorado , Mississip pi, and Washingt on, D. C. Th e tri al itself lasted over si x wee ks. Petition er con tends that May s prior experi ence 17 defendin g Craw ford i n two Texas murder trials was 18 insuffic ient p repara tion for the federal tr ial. 19 places g reat w eight on st atements May made during his 20 depositi on: 21 Petitioner I really felt like I was kind of the one-man lawyer/i nvestigator down there in California. And there ju st didn t seem to be it see med to me that if I was going to be doin g that with that l arge a case and that much d iscovery, I ought to have, li ke, two othe r lawyers as sisting me in the three 22 23 24 25 26 27 28 5 Cr aw fo rd s i ni ti al h abe as p et it io n al so a ss er te d th at M ay ad mi tt ed to Pe ti ti on er d ur in g a t el ep ho ne c o nve rs at io n th at h e wa s u np re pa re d a t the f ed er al t ri al . P eti ti on er s r e ply b ri ef a ba nd on s th is sp ec if ic arg um en t in f av or o f a g en er al a ss e rti on t ha t Ma y wa s si mpl y un pr ep ar e d for t ri al . A lt ho ug h May a dm it s te l lin g Cr aw fo rd t ha t he fe lt ove rb ur de ne d by t he t ria l, h e de ni e s s ta ti ng t ha t he w as un pr ep ar ed . GX A, Ma y 2/ 20 /0 4 De po ., at 2 3. 63 1 lawyers really you know , sp ending a hundred percent of their tim e on the case when the trial is going on and have so me time before th e tria l begins to get f amiliar with it and handle aspects of the case. An d there just wasn t a ny of that there. 2 3 4 Would it have made a difference? I don t know. But in being completely honest with you about that, I have to tell you tha t I felt like, you know , I was under a huge pot of responsibility there and didn t have jus t a lot of p eople to help me with it. 5 6 7 8 9 10 11 12 PRX 1, M ay 2/2 0/04 D epo., at 24-25; see als o id. at 23 ( I was over burden ed for the trial. I felt like that both Mr. Litman a nd I w ere ov erbur dene d given the vo lume of the trial. ) . May also belie ved that Litman wasn t available 13 most of the ti me to help ; May didn t really feel lik e [Mr. 14 Litman] was co -couns el. 15 see also PRX 1 at 19 ( I didn t feel like [Litman] was full- 16 fledged counse l. ). 17 18 19 20 21 PRX 2, May 10/31/05 Depo., a t 122; Prior to trial , May told Litman that, without at least a 30-day c ontinu ance, May couldn t be fully prepared to represen t Mark Crawf ord. 22. PRX 4, Litman 11/10/05 Depo., at Alt hough May re quest ed a continuance, that r equest was 22 denied. 23 their re specti ve rol es at the trial until a few days before 24 trial. 25 Litman d ecided that May would be primarily respo nsible for 26 27 28 Litma n test ified that he and May d id not disc uss PRX 3 , Litm an 6/ 30/03 Depo., at 12-13. the exam inatio n of witnes ses. May a nd Id. a t 13:1 5-13:17. role wo uld be to as sist [May] if he needed any legal 64 Litman s 1 2 3 4 research , if w e need ed to be doing any last-minut e preparat ions, speaki ng wi th witnesses. And [Litma n] wo uld be primaril y resp onsibl e for the objecti ons at trial, the 5 evidenti ary ob jectio ns. 6 May s pr eparat ion fo r tri al w as inade quate: 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Id. at 13. Litman now asser ts that Q: Can you tell the cou rt whether or not your feelings about Mr. M ay s preparation did you feel that he had prepared in advan ce of this trial or can you desc ribe that to the court? A: ... [I]t appeared to me that he was doing everythi ng at the la st minute, that he had not do ne any sign ificant prep aration. It appeared to me th at he was r elying subst antially on his knowledge of facts th at he had ga rnered from the state court cases as opposed to preparation that he had done to get back up to speed or to make sure witnesses we re subpoena ed for this Federal trial. Q: Based on your experi ence as an attorney having handled hundreds of cases, did you feel that that was an e ffective way for him to prepare for this case? A: No. PRX 4, L itman 11/10/ 05 De po., at 76. Litman o bserve d that May appeared to have done no prio r preparat ion fo r the cross -exa mination of witnesses: [T]here were multiple times when witnesses were testifyi ng that Mr. May appeared to me to be taki ng -- to be makin g note s, no t ta king notes, but maki ng notes of cross-exami natio n, t hat he was going to ask the witn ess. And it just struck me that he was -that see ms like something that should have been done at an ea rlier time a nd not while the witness was testifyi ng. PRX 3, L itman 6/20/0 3 Dep o., at 24. 65 Litman state d tha t he 1 2 3 attempte d to w ork wi th Ma y during trial, but May never seemed to work on the case: Several occasi ons I did t ry t o get together with Mr. May afte r court or o n a weekend to talk about the case, bu t after a fe w attempts it was just -- it was fruitles s. One time we got together on a Saturday and we e nded up at a gun show. And I thought we w ere coming t o the downto wn area to work on the case a nd he ended up at the f airgrounds at a gun show. 4 5 6 7 8 9 10 11 12 PRX 4, L itman 11/10/ 05 De po., at 82. Three we eks in to tri al, M ay told Litman that Litm an would pr esent all of the defense witnesses, a sig nific ant change f rom th e work load allocation the two had discussed 13 prior to trial . 14 did not learn this u ntil after the witnesses arri ved i n 15 Californ ia. 16 witnesse s who did ar rive in California to p repare thei r 17 testimon y. 18 19 20 21 PRX 3, L itman 2/24/06 Depo., at 175. I d. Litman Li tman and the investigat or met with the Id . at 1 68-169; PRX 6, D. Cordi s Aff., at ¶8. May did not pa rticip ate i n these witness preparat ion sessions . PRX 6 at ¶8. Shortly after Litman bega n presenting defense wit nesse s, 22 Litman f ell il l with a co ndition serious en ough t o req uire 23 hospital izatio n for sever al days. 24 Depo., a t 40. 25 proceed. 26 27 28 PRX 3, Litman 6/20/ 03 The d istri ct Court inquired whethe r May could R.T. 3482. May rep resented to th e Court tha t he was rea dy to procee d, because Mr. L itman at th is stage was pretty m uch as signed to l ining up the witnesses t hat w e were 66 1 2 3 4 going to get i n the following week. Id. Thereafter, May picked u p prim ary re sponsibility for the pr esenta tion of Petition er s d efense witn esses. 5 Notwiths tandin g Litm an s version of e vents, May 6 presente d Craw ford s defe nse in an organize d, effectiv e 7 manner. 8 he was f amilia r with the factual and legal issues surr ounding 9 10 11 12 May h ad alr eady tried the murder charges twic e, so that por tion o f the trial . 18. See GX A, May 2 /20/04 Depo ., at In May s opinio n, th e ad ditional fraud allegation s were not terr ibly c omplex , and he believed he had prop erly 13 prepared a def ense t o tho se allegations. 14 the disc overy produc ed by the government in his o ffice in 15 Corpus C hristi , Texa s bef ore he came to Cal iforni a for trial. 16 Id. 17 and put in his room at hi s hotel so he could cont inue to 18 19 20 21 Id. Ma y rev iewed He had th e discovery shi pped from Texas to C alifo rnia review i t. Id . He revie wed the discovery again befor e ea ch witness testif ied, e ven d uring evening hours, because the governme nt gav e noti ce of who they were going to call the 22 followin g day throug hout the trial. 23 that oth er def endant s, no t Mark Crawford, the lea der, were 24 more inv olved in the day- to-day operation of separate 25 business es in the criminal enterprises. 26 27 28 Id. It is notewo rthy The four other defense attorn eys pa rtici pating in the trial more thor oughly cross-ex amined and d efended against the RICO, money 67 1 2 3 4 launderi ng, an d wire frau d aspects of the case. Despite his re servat ions about May s unwillingness to cooperat ively prepar e for trial, Litman agreed that Ma y was 5 prepared each day fo r tri al. 6 familiar with all th e wit nesses called by the gov ernme nt. 7 C, Litma n 6/20 /03 De po., at 30. 8 he belie ved Ma y was prepa red to handle the testim ony o f each 9 10 11 12 13 Litman testified th at Ma y was GX When asked speci fical ly if witness and th e even ts of each particular court d ay, L itman testifie d that he co uld n ot think of any particul ar in stance where Ma y did not kn ow wh o the witness was or how to h andle the witn ess. Id. 14 The gove rnment cites Dows v. Wood, 211 F.3d 480 (9th 15 Cir. 200 0), in suppo rt of its argument that May s prep arat ion 16 and perf ormanc e were not insufficient. 17 alleged his co unsel was u nprepared for trial, hav ing 18 19 20 21 In Dows, petitioner undertak en onl y thre e day s of prepara tion, conducted n o witness interv iews o r inv estigation, and failed t o con tact a possible alibi witne ss. Id. at 486. The N inth Circuit 22 affirmed denia l of t he pe tition because counsel w as fa miliar 23 with the facts of th e cas e, had a definite defens e str ateg y, 24 made cog ent pr etrial argu ments about the use of e viden ce at 25 trial, a nd rev iewed inter view statements. 26 27 28 Dows, 211 F.3d at 486-87. Here, li ke in Dows, May w as intimately fami liar w ith a ll 68 1 2 3 4 the witn esses and ev idenc e in the murder portion of th e case, and the crimin al act iviti es in Texas and Mississi ppi. He reviewed all o f the alleg ations and familiarized himse lf with 5 relevant inter view s tatem ents and grand jury test imony from 6 witnesse s in t he whi te-collar portion of th e trial. 7 vigorous ly cro ss-exa mined witnesses through out the case, and 8 skillful ly con struct ed a closing argument based o n the record 9 10 11 12 evidence . M ay May was e xtrem ely articulate, and his Texas accent, courte sy, an d aff able demeanor, were well rece ived and effe ctive with t he ju ry. Althoug h his cooperation and 13 communic ation with L itman may not have been ideal , Lit man 14 became i ll, an d May s con duct demonstrated a stro ng gr asp of 15 the rele vant f acts a nd wi tnesses and a clear and reaso nable 16 defense strate gy. 17 challeng ing th e gove rnmen t s case. M ay wa s prepared and effective in 18 19 D. 20 May s Fi nancia l, Emotional, and Psychological WellBeing. Petition er con tends that May was suffering from a host 21 22 of finan cial, emotio nal, and psychological proble ms th at 23 adversel y affe cted h is pe rformance. 24 25 1. Family P roblems 26 Several months before tri al, May sepa rated from his wife 27 and file d for divorc e. 28 67. P RX 1, May 2/20/04 Depo., at 1 0, 66- Sho rtly b efore trial , May s oldest chi ld was arre sted 69 1 2 3 4 for coca ine po ssessi on. Id. at 16. Becaus e of his family situatio n at h ome, o ne of May s child ren -- then, seve n years old -- t ravele d to F resno and spent part of one trial day 5 sitting in the court house hallway unsupervised. 6 68; PRX 5, Lit man 2/ 24/06 Depo., at 275-76. 7 8 9 10 11 12 Id. at 67- May test ified that, contr ary to Petitioner s assertions, his wife had n ot aba ndone d him and his son; rathe r, he separate d from his w ife a nd moved out of his home befo re the trial. GX A, May 2/ 20/04 Depo., at 10. May test ified that it did n ot dis tract him a nd that it would have be en mo re 13 distract ing if he ha d not mov ed out. 14 that his steps on s a rrest did not distract him from 15 adequate ly rep resent ing P etitioner. 16 testifie d that he ig nored all the personal events of h is 17 life, st ayed i n Fres no, C alifornia, and worked al most 18 19 20 21 22 23 24 25 exclusiv ely on Crawf ord s cas e. Id. Id. May also explained Id. at 16-17. May There is in suffi cient factual suppor t for Petit ioner s assertion that M ay s personal life interf ered with his duties as couns el. 2. Drug and /or Alcohol Abuse. At the t ime of trial , May was taking Oxycontin for severe, chroni c pain . PR X 2, May 10/31/05 Depo., at 8 8-89. 26 Oxyconti n, a p owerfu l opi oid narcotic, is known t o be highly 27 addictiv e. 28 been pre scribe d the sleep ing pill Ambien, a hypno tic u sed to PR X 11, J. O Donnell Aff., ¶¶ 4-5. 70 M ay ha d also 1 2 3 4 treat in somnia . Id. at ¶ ¶ 4, 7. May ackno wledge s hav ing two drinks w ith di nner a t a l ocal restaurant and bar. PRX 1, May 2/20/04 Depo., 56-58 ; PRX 3, Litman 6/20/03 Depo., at 28. 5 Accordin g to J ames O Donn ell, a pharmacolog ist who sub mitted 6 an affid avit i n supp ort o f Petitioner s rep ly brief, the 7 combinat ion of Oxyco ntin, Ambien, and alcohol put May at 8 great ri sk for impai rment in his cognitive abilit ies and 9 10 11 12 drug in duced impairment during trial. PRX 11 ¶ ¶ 9, 11. The cons equenc es of these impairments, including disorien tation , conf usion , impaired judgment, red uced ability 13 to delib erate clearl y, in creased impulsivity, and redu ced 14 energy, may l imit [ ones] abi lity to clearly and compe tently 15 plan for and a ddress ... multiple complex issues and o n the 16 spot dec isions neede d du ring a trial. 17 Mr. O Do nnell was no t present at the trial and did not 18 19 20 21 Id. at ¶11. However, observe May ex hibiti ng an y of these symptoms of i mpair ment. The cour t obse rved M ay on a daily basis. intellig ent, a rticul ate, and fully en gaged. He was alert , May was i n 22 command of him self a nd th e defense throughout the tria l. 23 This spe culati ve the orizi ng about impaired functi on ne ver 24 manifest ed its elf in any way during trial. 25 symptoms or ma nifest ation s of drug or alcohol use duri ng 26 27 28 May e xhibi ted no trial, n or in his co mmuni cations with the court o ver t hat more tha n six week p eriod . 71 1 3. 2 3 4 5 Financia l & Legal Pr oblems. May admi ts to having some financial problems duri ng trial. PRX 2, May 1 0/31/ 05 Depo., at 65; PRX 3, Litma n 6/30/03 Depo., at 33 . He had to borr ow money for his law 6 practice durin g the trial to make sure tha t I di dn t go o ut 7 of busin ess wh ile I was s itting in California. 8 2/20/04 Depo., at 27 . 9 week dur ing tr ial, p lus h otel expenses, from Thomas He nry, 10 11 12 13 Ma y accepted loans of $7,5 00.00 per Crawford s son -in-la w, for a total of $43,8 00. PRX 7, T . Henr y Aff. PRX 1, May Id. at 40-41; How ever , there is no evidence th at these lo ans or May s fina ncial extremis impaired May s 14 performa nce as defen se co unsel. 15 His finances wer e not a factor d uring trial. 16 17 18 19 20 21 22 E. Was May Notice ably A sleep During Major Portions o f the Trial? [W]hen an att orney for a criminal de fendan t sleeps through a subs tantia l por tion of the trial, such condu ct is inherent ly pre judici al an d thus no separate showi ng of prejudic e is n ecessa ry. Jav or v. United States, 724 F.2d 23 831, 833 (9th Ci r. 198 4); see also Burdine v . John son, 262 24 F.3d 336 (5th Cir. 2 001) (en banc) (counsel s sle eping during 25 trial is presu mptive ly pr ejudicial). 26 sleeping couns el is equiv alent to no counsel at all. 27 28 [U]nconscious o r 724 F.2d at 83 4. Both Pet itione r and Litma n recall that May was 72 Javor, 1 2 3 4 noticea bly as leep durin g portions of the trial. Mr. Crawford asser ts in his s worn Petition that May was f ast asleep s itting at th e def ense table and [Petition er] h ad to 5 bump him to ge t him to wa ke up. 6 not spec ifical ly sur e if May was asleep, Litman r ecall s that 7 [t]here were times when I saw [May] with h is eyes clo sed. 8 PRX 5, L itman 2/24/0 6 Dep o., at 287. 9 10 11 12 Doc . 812 at 30. Alt hough Litman also reca lls that May was s o exha usted during closing ar gument that he had to sit d own ha lfway throu gh and deliver the remai nder of his argument from a chai r. Id. a t 287-88. Dr. O Con nell asserts 13 that the combi nation of O xycontin, Ambien, and al cohol put 14 Mr. May at ser ious r isk f or f alling asleep during tria l. 15 11 at ¶1 3. 16 a medica tion s pecifi cally to increase his wakeful ness and 17 countera ct the drows iness and sedation caused by Oxyco ntin. 18 19 20 21 22 23 24 25 26 27 28 PRX Af ter tr ial, Mr. May obtained a presc ripti on for Id. at ¶ 10. May was questi oned a bout sleeping dur ing th e proceedi ngs: Q: The l ast allegati on is that you w ere no ticeably asleep a t the defens e table during major portions of the tria l. Were you at any time d id you fall asleep a t the defens e table during the trial itse lf? A: No, I did not fall asleep. One time Mark kick ed me under the counsel table and asked me if I was asleep. And I asked him, You know, why di d you kick me under the ta ble? Cause your eyes were closed, and your hea d was back. And I to ld him that a l ot of times I ll list en to the test imony by doing th at. I ll cl ose m y ey es and put my head back 73 1 and put my glasses o n my forehead, my reading glasses, and just li sten to the words of the witness, and so th at s the way I co ncentr ate better a t it. And I told him that I m not asleep when I d o that, I m liste ning to the witnes s. An d that hap pened, I bel ieve, around the second or th ird day of t rial, and af ter that I don t think we had a problem with it agai n. 2 3 4 5 6 Q: So yo u never fell asleep at the defense table during the trial? 7 8 A: That s a funny th ing, if you re as leep, you really d on t know it or not, unless somebody woke you up. And nobody woke me up, so I presume I ne ver fell asl eep. 9 10 11 GX A, Ma y 2/20 /04 De po., at 31. 12 13 14 There is insuf ficien t evi dence that May was sleeping. He did n ot nee d to b e awa kened or prompted by Lit man o r anyone e lse, n or did he a sk for matters to be rep eated or for 15 16 17 a read b ack of misse d tes timony. No attorney, de fenda nt, prosecut or, co urt se curit y officer, or defense at torne y ever 18 reported or dr ew the cour t s attention to M ay s sleepi ng. 19 one obse rved M ay sle eping during trial. 20 contempo raneou s evid ence or notice to the court o f con cern 21 about th is all eged s leepi ng requires DENIAL of th e pet ition 22 No The lack of on this ground . 23 24 25 26 27 28 F. Did May Operat e Under A C onflict of Interes t? 1. Relevant Facts. Petition er con tends that May s prior financial de aling s with Les Tatum ( Tat um ), May s banker and vice p resid ent and 74 1 2 3 4 5 6 loan off icer o f Kleb erg F irst National Bank ( Kle berg Bank ), dissuade d May from a ctive ly pursuing a defense to the white collar c rimina l char ges a gainst Petitioner and hi s codefendan ts. From 199 3 to 1 998, T atum provided May with financ ial 7 assistan ce and May o btain ed numerous bank loans t hroug h 8 Tatum. 9 10 11 12 See Ma y 2/20/04 Depo., at 15. Among other thi ngs, Tatum op ened n ew acc ounts for May to enable May t o con tinue writing checks ; exte nded the repayment time for M ay s existing loans ; ensu red t hat the bank honored May s ch ecks 13 despite May s overdr aft s tatus; and transferred m oney into, 14 out of, and be tween May s ban k accounts. 15 Kleberg v. May at 92 , 122 -24, 134, 139-40. 16 Tatum pr ovided bank loans to May s wife. 17 sum, Tat um app roved 18 lo ans to May, totaling ove r $1 18 19 20 21 million. P RX 38, May Depo in Additional ly, Id. at 219. In See PRX at 42 n .4 ( citing PRX 38, May s Depo . in Kleberg v. May , in w hich all loans are revi ewed). May maintain s that some of th ese loans were renewals of pr evious 22 loans. 23 some of the lo an doc ument s, and that Tatum pocket ed th e 24 proceeds for h imself. 25 33-34, 7 8, 188 , 240. 26 27 28 May be lieves that Tatum forged May s sign ature on PR X 38 , May Depo. in Klebe rg v. May at Tatum al so mad e loan s to two of the government s cooperat ing wi tnesse s in the federal trial, Crawf ord s co- 75 1 2 3 4 defendan ts, ma ny of the s taff leasing companies o wned by Petition er and his f amily and friends, and to Pet ition er and his fami ly, in cludin g for payment of May s legal fees in the 5 two Stat e murd er tri als. Id. at 24-26; see generally, PRX 6 18, Tatu m gran d jury test imony. 7 Shortly before the s tart of Crawford s federal tr ial, 8 Tatum wa s indi cted b y a f ederal grand jury in Cor pus C hristi, 9 10 11 12 13 Texas fo r embe zzleme nt. R.T. 3816-17. These accusati ons centered on Ta tum s appro val of various bank loan s and conversi on of some l oan p roceeds. Id. During t he Fre sno fe deral trial, Kleberg Ba nk filed suit 14 against May, s eeking to r ecover $500,000 in unpai d loa ns 15 approved by Ta tum. 16 of servi ce). 17 connecti on wit h the loans from Tatum, May concede s tha t he 18 19 20 21 PRX 3 5 (original petition) & 36 (r eturn Althou gh Ma y believed he did nothin g wro ng in may have been concerned tha t he might be indicted fo r particip ating in Tat um s bank fraud. Depo., a t 15-1 6. PRX 1, May 2/20/ 04 He was con cerned that ... the Feds 22 wouldn t be ab le to figur e out that I [May] wasn t doi ng 23 anything wrong , that it w as Les Tatum doing it. 24 But, he was n ot ove rly c oncerned. 25 figure i t out, and n o one talked to me about it. 26 27 28 Id. at 1 5. I figured the y wou ld Id. at 16. Litman r ecalls that May w as concerned that he mig ht be charged crimin ally, but t estified that the issue was n ot 76 1 2 3 4 weighin g on May; r ather [it] was something he menti oned in passing. Lit man 11 /10/0 5 Depo., at 38:2-11. Before t he fed eral t rial, May was alerted that Ta tum h ad 5 met with the f ederal pros ecutor and was a potenti al wi tness 6 in Crawf ord s case. 7 later in quired wheth er Ta tum would in fact be cal led a s a 8 witness for th e pros ecuti on, informed the prosecu tion of his 9 10 11 12 13 PRX 2, May 11/31/05 Depo., at 47. Ma y connecti ons wi th Tat um, a nd was notified that Tat um wa s not going to be ca lled. Id. at 5 6-57. Tatum n ever testified at trial. Federal prosec utors did o ffer evidence of Tatum s loan s 14 to Petit ioner and hi s co- defendants as part of a broad 15 pattern of con duct e stabl ishing that the staff-leasing 16 companie s were fraud ulent . 17 Crawford intro duced Beckc om t o Tatum, and t hat Ta tum g ave 18 19 20 21 22 23 24 25 26 27 28 Mike Beckcom testifie d tha t John Beckcom an uns ecured $50, 000.00 loan to capitaliz e one of the fraudule nt sta ff-lea sing companies: Q: What did you hav e to tell Mr. Tatum to get $50,000? A: Not a word. R.T. 135 2-53. The p rosec ution emphas ized this testimo ny in closing argume nt: [Mike Be ckcom talked about how John Crawford took him to K leberg Bank, 45 minutes outside of Corpus [Cristie ], instead o f down the street, and introduc ed him to Le s Tatum, and how he got a loa n from Les Tatum for P rogre ssiv e with absolutely no collater al, absolute ly nothing. None. 77 1 2 R.T. 422 0. In the c ross-e xamina tion of J ohn Crawford, the 3 4 governme nt sou ght to tie each of the members of t he al leged 5 conspira cy to Tatum and h is criminal activity at the K leberg 6 Bank 7 Q. ... Can you tell the jury who Les Tatum is? 8 A. He i s a banker a t Kleberg First National Bank . Q. And he is your b anker; is that right? A. Yes, he was my b anker. 9 10 11 12 13 Q. And how far is M r. Tatum s bank from where yo u are? A. From where I live or from the off ice? Q. Well , from where you live. A. 45, 50 minutes. 17 Q. 45, 50 minutes? 18 A. Appr oximately, y es. 19 Q. And Mr. Tatum wa s not only your banker, he wa s Mark Cra wford s bank er, too, wasn t he? 14 15 16 20 And that s a 50-minute drive? 22 A. I do n t kn ow if he wa s his personal ban ker. He was the banker for t he business, Superior Employe e Staff Ma nagement. 23 Q. You got loans fr om Mr. Tatum; isn t that true ? 24 A. Yes, I did. 25 Q. And Mark Crawfor d got loans from Mr. Tatum? A. Prob ably. 21 26 27 28 Q. And Mr. Galvan g ot loans from Mr. Tatum, isn t that tru e? 78 1 2 A. 3 Q. And Geneva Garza got loans from Mr. Tatum; is n t that tru e? 4 Prob ably. 5 A. 6 Q. Mich ael Beckcom got loans from Mr. Tatum; isn t that tru e? 7 A. 8 I ha ve no idea. I be lieve that s the way it turne d out, yes. Q. Isn t it true yo u introduced Mike Beckcom to Mr. Tatum? 9 10 A. I ca lled Mr. Tat um and Mr. Tatum said he woul d meet wit h Mr. Beckco m. I took Mr. Beckcom over there. I waited in the lobby. Whether he got a loan or not, I do not kno w. 11 12 13 14 Q. All right. Tatum? 15 A. 16 Q. Do y ou know that Mr. Tatum is currently under indictme nt? 17 TNT Quick Stop got loans from Mr. I do n t know. 18 A. I he ard rumors. 19 Q. For bank fraud? 20 A. I do n t know tha t. 21 R.T. 348 9-91 ( J. Cra wford ). 22 The pros ecutor reviewed e leven specif ic loa ns that Mr. 23 Tatum ha d appr oved f or en tities owned or controll ed by the 24 Family. 25 had appr oved f or Sup erior Services (one of the fr audul ent 26 employee leasi ng com panies), even though the company h ad 27 filed fo r bank ruptcy at t he time of the loan: Id. a t 3489-97. Thi s review focus ed on loans Tatum 28 79 1 2 3 4 5 6 7 8 Q. Now, I believe y ou said Superior Services wen t bankrupt ? A. It f iled bankrup tcy, but the - it never went through the whole pr ocedures, kind of a - I don t know wha t you would call it. Q. Okay . at all? A. And is Su perior Services still operati ng No, not at this time. 10 Q. Can you explain to the jury why, on November 30th, 19 95, you, sig ning as Superior Services, received a $79,000 l oan from Mr. Tatum? 11 A. When was the dat e? 12 Q. Nove mber 30th, 1 995. 9 13 14 15 A. No, I wouldn t h ave any idea why I would do that. 16 Q. Can you explain why on January 10th, 1996 you received a $60,000 l oan from Mr. Tatum under Superior Services? 17 A. 18 19 20 21 22 23 24 No, I m not sure why. Q. Can you ex plain to th e jury why on Marc h 1st, 1996, yo u received a n $85,000 loan from Mr. Tatum for Supe rior Service s? A. I ha ve no idea. Id. at 3 494-95 (J. C rawfo rd). In his e xamina tion o f Joh n Crawford, May sought t o introduc e an i nnocen t exp lanation for the l oans: 26 Q. Now, the prosecu tor mentioned something about Les Tatu m s fraud in dictment. Have you read a co py of that indictment? 27 A. No, I have not. 28 Q. Are you aware th at Mr. Tatum was accused of 25 80 1 2 making f alse loans t o individuals and stealing the money fr om those loa ns? 3 A. No, I m not. 4 Id. at 3 512. 5 experien ce, de spite the f act that May believed hi mself to be 6 one of t hese u nnamed ind ividuals who had been a vict im of 7 Tatum s scheme s. 8 33-35; 7 8). 9 May did not dis close his own, simil ar Se e PRX 38 (May Depo. in Kleberg v. May at To rebut the s uggest ion i n the prosecutor s cross that 10 the Craw fords use o f a b anker whose office was a 45-50 11 minute d rive f rom Co rpus Christi suggested some i mprop riety, 12 May trie d to p rompt John Crawford into identifying other 13 clients from Corpus Chri sti who might have been cust omers 14 of Tatum : 15 16 17 18 19 Q. Now, Kleberg Nat ional Bank or Mr. Tatum in particul ar, had a lo t of clients from Corpus Christi, didn t he? A. Yes. MR. CULL ERS: Object ion, lack of foundation. 20 BY MR. M AY: 21 Q. 22 THE COUR T: 23 24 THE WITN ESS: I know for a fact he did. clients also banked there. 25 BY MR. M AY: 26 Q. Was Mr. Tatum co nsidered to be a good banker at that tim e? 27 28 A. Do y ou know if h e did? Sustaine d. Yeah . 81 Some of our 1 2 Q. And some of the clien ts that you had at the b ank there, d o you know w ho they were, just offhand? 3 A. 4 5 6 7 8 No, not right of f hand. R.T. 351 7 (J. Crawfo rd). On re-di rect, John C rawford s attorney sought to rehabili tate h is cli ent s credibility by emphasiz ing t he explanat ion Ma y had ident ified in his questioning : 10 Q. Now, let s go to something that happened toda y. And I he ard that app arently this Mr. Tatum -- what s his firs t name? 11 A. 12 Q. Les Tatum, the b anker, has apparently been indicted for bank fr aud. Is that your understa nding? 9 13 14 A. Les. That s my unders tanding. 15 16 17 18 19 20 21 22 23 24 25 Q. And from what Mr . May said, apparently it s f or making l oans to ma king phon y loans, in ot her words, m aking it loo k like he s loaning some mone y to someb ody when he really isn t? A. I ca n only say that some of the loans they mentione d and the am ount, I did not do. Id. at 3 540. On Augus t 3, 1 999, d uring a break from testimony, the governme nt ann ounced its intention to introduce a seri es of charts d ocumen ting T atum s loans to the various s taff- leasing companie s. R. T. 381 3-15. Ma y objected to the governm ent s 26 proffer, descr ibing to th e Court his own situatio n wit hout 27 disclosi ng his perso nal i nvolvement: 28 82 1 [T]here is a more ex pansive problem here, and tha t s that Les Tatum is cu rrently under indictmen t in Corpus C hristi. And part of the indictment has t o do and I haven t seen the indictment yet, I don t think b ut fro m talk ing t o his lawyer and from talking to Mr. Kusik , who is the Assistant U.S. Attorney there that s handling the case, it appea rs that Mr. Tatum was d oing loans to various individu als at the b ank and taking the proceeds o f those lo ans without the knowledge of the deposito r, without that person knowing the loan was being ma de and with out that per son knowing that any funds we re proceeds taken from his l oan. 2 3 4 5 6 7 8 9 Mr. Tatu m has been s ince indicted. And there wer e various attorneys in Corpus Christi who had loans through Mr. Tatum th at were notified by the bank to pay the loans. And it turns out those were never loans th at the lawye rs signed on and nor di d they receive any funds fr om them. And Mr. Tatum apparent ly embezzled those amounts. 10 11 12 13 14 Id. at 3 816-17 . 15 believed he wa s one of th e various attorneys in Corpu s 16 Christi who h ad bee n no tified by the bank to pay the 17 loans, and/or one o f the various individuals f rom w hom Mr. 18 19 20 21 22 23 May neve r in formed the Cou rt that he Tatum ha d take n the proc eeds of those loans with out t he knowledg e of t he dep osito r, without that person k nowin g the loan was being made and w ithout that person knowi ng th at any funds we re pro ceeds taken from his loan. May then sugge sted t o the Court that further unsp ecifi ed 24 witnesse s migh t be n ecess ary to testify to Tatum s modus 25 operandi in or der t o rebut the inference that the 26 27 28 prosecut ors ar e seek ing t o get from the evidence. 3817-18. 83 R.T. 1 [T]he mo dus operandi of Mr. Tatum in the federal case in Texas includ ed his setting up an account in the name of the pers on who was going to receive t he money wi thout that p erson s knowledge and putting the mone y into that account under that pers on s name, an d then getti ng the money out of that person s account by transfers to other places. A nd so the f act that the money is traced to an accoun t under th e person s n ame, that occurs in all the places w here Mr. Tat um defrauded the bank. 2 3 4 5 6 7 8 Id. at 3 819. The dist rict c ourt a cknow ledged that establishing this 9 10 modus op erandi would be antithetical to knowle dge o n the 11 part of these defend ants or any operation of the consp iracy 12 or wrong doing, becau se, i n effect, [Mr. Tatum is] stea ling 13 14 from the m in t he pro cess of d oing tha t. Id. at 3825- 26. However, John Crawfo rd ad mitted his direct dealin gs wi th 15 16 Tatum to obtai n unju stifi ed loans. Around this p oint i n the trial, May says he appr oache d 17 18 the pros ecutor and told him that [Tatum] was my banke r an d 19 that I w as con cerned abou t that if he was called as a witness 20 in the c ase. 21 telling the pr osecut or: 22 24 25 26 28 May recalls If Tatum is going to be a witness in this case, h e was my b anker, you k now, as I m sure you have see n. And I th ink he said, yeah. And I said are you go ing to call him as a wit ness. And this was like golly, this had to be almos t at the end of the trial. A nd he said, no we ve de cided not to call him. There s just not hing we ve g ot to call him about. A nd that was it. 23 27 PRX 2 , May 11/31/05 Depo., at 57. Id. 84 1 2 3 4 Neither May, L itman or an yone else raised the relation ship b etween May and Tatum with the Court , and Tatum was not called as a witne ss. The government did not s eek to 5 introduc e in r ebutta l the flow-charts docum enting Tatu m s 6 loans. 7 with Mr. Tatum . 8 9 10 11 12 13 Followin g Craw ford s conv iction, Tatum pleaded gu ilty to one coun t of b ank fr aud. PRX 39, Jud gment in U.S . v. Tatum. May was subpoe naed b y the U.S. Attorney s Office to pr ovide exactly this m odus operan di t estimony at sentenci ng in the criminal case agains t Tat um: I ve bee n asked to t estify about, basically, his [Mr. Tat um s] I gue ss wh at w e would in the criminal law busi ness call hi s MO, his modus operandi, his way of o perating at the bank, of doing the loan, and, you know, you n ot actually receiving the mon ey from the loan procee ds, and, instead, the you know, Mr . Tatum woul d say, well, I m going to disburse the money f or you, and then him not payi ng off the previous not es like h e was supposed to and things l ike that. 14 15 16 17 18 19 20 May pu t on no evi dence regard ing hi s relations hip PRX 38, May De po. in Kleb erg v. May at 40. 21 22 2. 23 Petition er arg ues th at Ma y s relationship with Ta tum 24 dissuade d May from e ffect ively and vigorously pur suing a 25 defense based upon T atum s modus operandi. 26 27 28 Analysis . Crawford contends that suc h a de fense could have responded to the p rosec ution s implicat ions t hat Ta tum s loans were evidence of Crawf ord s 85 1 2 3 4 involvem ent in a ban k fra ud conspiracy. at 60. 1:02-cv- 6498, Doc. 7 Crawfo rd all eges that since May had an in teres t in avoiding both crimin al an d civil liability, May d id no t wish 5 to revea l the extent of h is connections with Tatu m thr ough 6 both the admin istrat ion o f adequate cross-examina tions of the 7 loan rec ipient witne sses and by disqualifying him self and 8 introduc ing hi s own testi mony as to Tatum s modus oper andi. 9 This the ory is speci ous. 10 A crimin al def endant has a sixth amendment right to 11 12 effectiv e assi stance of c ounsel, including repres entat ion 13 free fro m conf licts of in terest. 14 692. 15 Amendmen t [bas ed on a con flict of interest] a def endan t who 16 raised n o obje ction at tr ial must demonstrate tha t an actual 17 conflict of in terest adve rsely affected his lawye r s 18 19 20 21 Str icklan d, 466 U.S. at I n orde r to e stabl ish a violation of the Sixth performa nce. Cuyle r v. Sull ivan, 44 6 U.S. 335, 348 ( 1980). If this standa rd is met, prejudice is presumed be cause the assista nce of couns el ha s been denied entirely o r dur ing a 22 critical stage of th e pro ceeding. 23 U.S. 162 , 166 (2002) . 24 conflict is a confli ct th at a ffected counsel s perform ance-as 25 opposed to a m ere th eoret ical division of loyalti es. 26 27 28 Mickens v. Ta ylor, 535 U nder this standard, an a ctual United States v . Well s, 394 F.3d 725, 733 (9th Cir . 2005 ) (qu oting Mickens, 535 U .S. at 171) . 86 1 2 3 4 Ordinar ily, [ the te rm a ctual conflict ] denotes represen tation of mu ltipl e conflicting interests, such as an attorney 's rep resent ation of more than one defend ant i n the 5 same cri minal case, or re presentation of a defend ant w here 6 the atto rney i s bein g pro secuted for related crim es. 7 Stenson v. Lam bert, 504 F .3d 873, 886 (9th Cir. 2007) (citing 8 Mickens, 535 U .S. at 176 ( until ... a defendant shows that 9 10 11 12 his coun sel ac tively repr esen ted conf lictin g interests , he has not establ ished the c onstitutional predicate for h is claim of ineff ective assi stan ce )(emphasis in original )). To 13 demonstr ate an actua l con flict, petitioner must s how that 14 some pla usible alter nativ e defense strategy or ta ctic might 15 have bee n purs ued bu t was not and that the altern ative 16 defense was in herent ly in conflict with or not un derta ken due 17 to the a ttorne y's ot her l oyalties or interests. 18 19 20 21 Well s, 394 F.3d at 733 (i nterna l quo tation marks omitted); see al so McClure v. Tho mpson, 323 F.3d 1233, 1248 (9 th Cir . 200 3) ( The cl ient m ust de monst rate that his attorney m ade a choice 22 between possib le alt ernat ive courses of act ion that 23 impermis sibly favore d an interest in competition with those 24 of the c lient. ). 25 strategy does amount to a n actual con flict of int erest . 26 27 28 I n con trast, a disagreement ov er tr ial Stenson, 504 F .3d at 886. Petition er cit es Mannhalt v. Reed, 847 F.2d 576 (9th 87 1 2 3 4 Cir. 198 8), in suppo rt of the proposition that Ma y and Tatum s relati onship crea ted an actual conflict o f int erest. Mannhalt was a ccused of c onspiracy to commit robb ery, 5 attempte d robb ery, a nd se veral counts of robbery and 6 possessi on of stolen prop erty. 7 8 9 10 11 12 Id. a t 578. Mannhalt was r eprese nted at trial by James Kempto n, wh o had know n Mann halt f or se veral years. Id. Prior to t he conduct for wh ich Ma nnhal t was to be tried, Kempt on pu rchased a gold w atch f rom Ma nnhal t. Id. Mannhalt assure d Kem pton that the watch had b een p urchased from a friend. Id. The key witnes s in t he st ate s case against Mannh alt w as 13 14 Tommy Mo rris, who ag reed to testify against sever al 15 individu als, i ncludi ng Ma nnhalt, as part of a ple a bar gain. 16 Id. 17 informat ion ab out tw elve items. Item No. 11 read: 18 11. Atto rney James K empton purchased a stolen rin g $1200 wi th $100 bill s; taken from Lake Washington area. Al so purchased a stolen bracelet. 19 20 21 Acc ording to a polic e re port Morris agreed t o giv e Id. Kem pton b ecame aware of this accusation while preparing 22 for Mann halt s trial , dis cussed the accusation wi th Ma nnhalt, 23 but did not po int ou t a p otential conflict of int erest . 24 At trial , Kemp ton co nduct ed an extensive cross- 25 Id. examinat ion of Morri s, a nd brought out th at Mor ris h ad 26 27 28 received a fav orable plea bargain for agreeing to test ify. Kempton then c onfron ted M orris with his accusatio n tha t 88 1 2 3 4 Kempton had pu rchase d sto len property. Id. Kem pton became increasi ngly a gitate d dur ing the cross-examination, o ffer ing his own unswo rn tes timon y that Morris accusatio n was false: 5 No, he' s tell ing th e pol ice I'm buying stolen go ods. I'm 6 proving he's a liar. 7 Kempton s cond uct co ntinu es: 8 At one p oint Kempton asked his wife, a spectator, about he r jewelry an d she came forward and commen ted that she was wearing rings and that she hoped the y were not glass. Kemp ton asked Morris many times whether he would lie and Morris replied: Would you? an d I've got up here and told the truth to the best of my knowl edge. Kempton also asked Mor ris about th e diamonds from the market place in evidence against Man nhalt. Morris admitted he had been in the donut sh op where the jewelry had been seized a nd where Kem pton had allegedly purchased stolen j ewelry . Morr is th en volunteered tha t he had seen Kem pton at the donut shop. 9 10 11 12 13 14 15 16 Kempton admitted tha t he lost his composure durin g the cros s-exam inatio n. In his affidavit sub mitted in these ha beas corpus proceedings, Kempton stated: I was visi bly shaken and I was furious. The court cannot a ppreciate th e furor one feels when being confront ed by an abs olute thieving liar and sayin g that one is the purc haser of stolen items. Also, during t he cross-exa mination the trial judg e remarked : Things ar e coming a little unglu ed here, a little bit out of order. 17 18 19 20 21 22 23 24 25 26 27 28 T he Ninth Circuit s descr iptio n of Id. at 5 78-79. Kempton did not take the stand to refute Morris accusa tion. Id. at 579. The Nint h Circ uit de termi ned that an actual confl ict existed: We find that when an attorney is accused of crimes similar or related t o those of his client, an act ual conflict exists beca use the potential for diminis hed 89 1 2 3 4 5 6 7 8 9 10 11 12 effectiv eness in rep resentation is so great. For example, a vigorous defense might uncover evidenc e of the a ttorney's ow n crimes, and the attorney could not give unbiased ad vice to his client about whet her to testi fy or whethe r to accept a guilty plea. Se e United S tates v. Can cilla, 725 F.2d 867, 870 (2d Cir. 198 4) (counsel may have conspired with someo ne connecte d to defenda nt or similar fraudulent insuranc e clai ms and thus actual conflict e xisted); see also United Stat es v. Salinas, 618 F.2d 1092, 1093 (5t h Cir.) (tri al judge was within discretio n in disqu alifying att orney over defendant's object ion where at torney was t arget of investigation concerning events fo r which clients were indicted), cert. de nied, 449 U. S. 961 (1980). Id. at 5 81 (em phasis adde d). Regardin g the second Cuyler prong -- whethe r the 13 conflict adver sely a ffect ed counsel s performance -- t he 14 Ninth Ci rcuit conclu ded t hat Kempton shoul d have 15 disquali fied h imself so a s to be available to tes tify and 16 dispute Morris test imony about the stolen ring. 17 (citing Washin gton S tate Rules of Professional Co nduct 3.7 18 19 20 21 Id. ( A lawy er sha ll not act as advocate at a trial i n whi ch the lawyer . .. is likely to be a necessary witness... . )). The Ninth Ci rcuit found it pa rticularly disturbing th at Ke mpton s 22 cross-e xamina tion o f Mor ris put his own and his wife s 23 unsworn testim ony be fore the jury.... put[ing] hi mself in the 24 position of ar guing his o wn credibility, pr ecisel y wha t [the 25 ethical rules] seeks to a void. 26 27 28 Id. at 852. Second, the Ni nth Ci rcuit concluded that Morris accusati on aga inst K empto n adversely affected Ke mpton 's 90 1 2 3 4 cross-ex aminat ion of Morris, because Kempton's personal interest in pr eserving his reputation and avoidin g criminal prosecut ion ma y have impa cted the manner of the c ross- 5 examinat ion. 6 and Morr is in terest actu ally did not conflict in a 7 traditio nal se nse: 8 The N inth Circuit did n ote that Kempton Once Kem pton decided to q uestion Morris, bo th he and Mannhalt had an inte rest in undermining Morris credibil ity. The man ner of the cross-examination indicate d, however, that Kempton was motivated, a t least in part, by pe rsonal concerns. The examinat ion was by a ll accounts unorthodox. Kempt on adm itted that he was shaken a nd furious. Kempton's emotion al performa nce may have effectively discredited Morr is in the e yes of the j ury. It is equally likely, however, that the ju ry viewed Kempton's anger as implying that Kempto n and possibly hi s client were involved in illegal conduct. Kempton's personal feelings about Morri s' allegation may have thus adversel y affected h is performance. 9 10 11 12 13 14 15 16 17 Id. Id. 18 The Nint h Circ uit al so fo und that having brought out 19 Morris accusa tion o n cro ss.... Kempton's decision not to 20 question Mannh alt [a bout the accusation] may have been 21 affected by Ke mpton' s per sonal concerns ; and tha t be cause 22 23 24 25 Kempton was th e targ et of the same criminal inves tigat ion, he may not have p ursued a pl ea bargain in which Mann halt would agree to testi fy aga inst Kemp ton. Id. In sum, the Ninth 26 Circuit conclu ded th at th e allegations against Ke mpton 27 created an ac tual c onfli ct and likely affected K empto n's 28 performa nce in four ways : 91 1 [H]e cou ld not call himself as a witness to refut e Morris' accusa tions but h is cross-exa minati on included much of his own unsworn testimony, he cross-ex amined Morri s in an unseemly and emotional manner, he did not q uestion Mannhalt about Morris ' accusati on on direct , and he could not pursue a p lea bargain that might implic ate himself. Mannh alt ha s thus met the require ments of Cuyler and shown a violatio n of his six th amendment right to effecti ve assistan ce of counse l. 2 3 4 5 6 7 8 9 Id. at 8 53. Although Mannh alt clearly holds that when an attorney 10 is accus ed of crimes simi lar or related to those of hi s 11 client, an act ual co nflic t exists because the pot entia l for 12 diminish ed eff ective ness in representation is so great , May 13 14 was not accus ed of any crime at the time of the fede ral trial. May ha d been name d in a civil suit to col lect upon 15 16 17 the frau dulent loans issu ed to him by Tatum, and was concern ed tha t... t he Fe ds wouldn t be able to f igure out 18 that [he ] wasn t doi ng an ything wrong..., but Ma y was not 19 overly c oncern ed, a nd f igured they would figure it o ut, and 20 no one t alked to me about it. 21 15-16. 22 23 24 25 PRX 1 , May 2/20/04 Dep o., at Unlike K empton , May was n ot rendered dysfunctiona l by his emot ions. May s exam ination of John Crawford on t he subject of Tat um s f raudu lent activities was not parti cularly 26 probing, but t his wa s bec ause John Crawford was not pr ivy to 27 informat ion su fficie nt to clearly establish the n ature of 28 Tatum s fraudu lent l oans. 92 1 2 3 4 Petition er, li ke Man nhalt , argues that May should have disquali fied h imself from representing Crawford, to en able May to t estify gener ally about Tatum s misd eeds, e.g., that 5 he was c onceal ing hi s tru e banking operations fro m his 6 customer s. 7 helped t o exon erate Crawf ord and his co-def endants. 8 Petition er als o sugg ests May failed to explore Ta tum s 9 10 11 12 Cr awford cont ends that this testimony woul d have misdeeds out o f conc ern t hat his own connection t o Tat um would be expos ed. T his e ntire line of argument m isses the broader factua l cont ext o f the case, namely that the f amily 13 knew the ir bus inesse s wer e shells and shams and w ere 14 undeserv ing of legit imate ban k loans, makin g it likely that 15 the jury would have viewe d Tatum as another consp irato r in 16 aiding t hese f raudul ent b usinesses. 17 18 19 20 21 Unlike i n Mann halt, where Morris was key to the prosecut ion s case, overw helming evidence showed that the fraudule nt nat ure of the Craw ford Family s businesses went well bey ond an y loan s Tat um made to Family-owned compa nies. 22 Petition er and other s, wi thout proper licenses, b egan 23 underwri ting e mploye e wel fare benefit plans under the name 24 Viking C asualt y Comp any. 25 thousand s of d ollars of p remiums, most of which w ere w ire 26 27 28 After accepting hundreds of transfer red to membe rs of the Family, Viking refu sed t o pay claims s ubmitt ed on behal f of policyholders. 93 Lik ewise , the 1 2 3 4 Family w as sip honing mone y out of the employee le asing business es so rapidl y that the companies did not even have enough c ash to pay e mploy ee taxes. The Family re ceive d funds 5 from the emplo yee le asing companies through dummy paym ents to 6 individu als, w ire tr ansfe rs, and large cash payme nts t o 7 individu al Fam ily me mbers. 8 unlicens ed bui lder s home warranty insurance comp any b y 9 10 11 The Famil y oper ated a simi lar, appropri ating the na me of a large, and reputable insur er, Progress ive Ca sualty , wit hout Progressive s knowl edge or permissi on. M oney f rom t his operation went to su pport Family 13 activiti es. F inally , the Family also profited fr om il licit 14 marijuan a sale s and bankr uptcy fraud. 12 15 The broa d, rep etitiv e, an d pervasive nature of th ese 16 unlawful activ ities could not possibly be written off as 17 Tatum s doing. 18 19 20 21 No m atter how crooked Tatum was made t o appear a t tria l, he had n othing to do with the op erati on of the RICO entit ies. Rathe r, Tatum s bank loans we re to the employee leasi ng bus iness es. Emphasizing the Tat um- 22 originat ed loa ns wou ld on ly have focused more att entio n on 23 how bogu s thos e companies wer e and how financiall y unw orthy 24 the Craw ford c ompani es we re to receive any loans whats oever. 25 This wou ld hav e adve rsely reflected on Petitioner as t he 26 27 28 kingpin of the Famil y bus inesses. If any actual confl ict of interest exist ed bet ween May and Crawford r egarding Tatum, it 94 1 2 3 4 had no i mpact on May s pe rformance, as there was no st rategic basis fo r May to int roduc e and amplify the crook ed-ba nker defense. Such a str ategy would only have prejudi ced 5 Petition er. 6 resultin g from a pur porte d conflict of interest a ssoci ated 7 with an allege d fail ure t o assert an in pari delicto, devil 8 (Tatum) made m e do i t de fense. 9 M ay s f ailur e to do so was not an adverse effect The peti tion i s DENI ED on this ground. 10 11 12 13 14 15 VI.CONCLUSION For all the re asons set f orth above, Mark C rawfor d s petition to va cate, set a side, or correct sentenc e, pu rsuant to 28 U. S.C. § 2255, is D ENIED IN ITS ENTIRETY. 16 17 18 19 SO ORDER ED DATED: D ecembe r 30, 2009 /s/ O liver W. Wanger Oliver W. Wang er United States Distri ct Judge 20 21 22 23 24 25 26 27 28 95
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