Federal District Court Grants § 2255 Motion, Finds IAC for Failure to Object to Government’s ‘Misstatement of Law’ During Trial
by Dale Chappell
The U.S. District Court for the District of Kansas granted a motion to vacate a conviction under 28 U.S.C. § 2255 on October 22, 2019, finding that, in addition to a host of other errors by counsel, the failure to object to the Government’s “misstatement of law” before the jury at trial prejudiced the defendant.
The motion was filed by Michael Frederiksen after he was convicted by a jury in 2018 for making a false statement to federal agents investigating an illegal gambling business. He raised multiple ineffective assistance of counsel (“IAC”) claims, and the Court ruled that counsel was ineffective in nearly every aspect of the case and granted Frederiksen’s motion. However, the one claim that received the most attention by the Court was counsel’s failure to object to the Government’s statement to the jury that Frederiksen was guilty because he refused to speak to agents and instead “minimized” his role in the offense.
But, as the Court pointed out, refusing to speak to federal agents was not what the Government had to prove in order to obtain a conviction. Under 18 U.S.C § 1001(a)(2), the Government had to prove Frederiksen knowingly made a false statement to federal agents that was “material.” This means that the statement had to “influence” a decision by the agents investigating the crime. When the Government told the jury that Frederiksen was guilty merely because he was “minimizing” his conduct by not answering the agents’ questions, counsel was ineffective for failing to object, the Court said.
Under the Supreme Court’s familiar IAC standard in Strickland v. Washington, 466 U.S. 668 (1984), the Court found that not only was counsel “objectively unreasonable” in failing to object, but his failure to do so prejudiced Frederiksen. “In this case, had Petitioner’s counsel made a timely and competent argument that the government’s evidence was insufficient to support a finding of guilty, and thus Petitioner should be granted a judgment of acquittal or new trial, Petitioner likely would have been successful,” the Court concluded.
The Government’s “misstatement,” as the Court repeatedly referred to it, was “plainly improper” and rendered Frederiksen’s trial “unfair.” And even though counsel never objected, he still could have filed a post-trial “motion for a judgment of acquittal” under Federal Rule of Criminal Procedure 29 within 14 days of the guilty verdict.
But counsel also missed that opportunity. Instead, 59 days later he filed a motion under nonexistent rules that went nowhere. He filed a motion captioned “Judgment as a Matter of Law,” citing Rules 50 and 59. Assuming counsel meant to invoke rules 50 and 59 under the Federal Rules of Civil Procedure, which deal with requesting a new trial in civil cases, the Court denied them as too late to apply in the criminal setting.
Frederiksen’s last chance for a judgment of acquittal or new trial was dashed by counsel’s ignorance of common rules of procedure in criminal cases. “Counsel’s lack of awareness and inexcusable failure to comply with the Federal Rules of Criminal Procedure” did not excuse his failure to file a timely motion for acquittal, the Court said. “Had Petitioner’s counsel timely filed a post-trial Rule 29 motion ... he likely would have been successful,” the Court noted. Even the Government conceded this.
But Frederiksen “was not entirely without recourse should he file a habeas petition for ineffective assistance of counsel,” the Court told him in denying counsel’s late motions. And he wisely took the Court’s advice.
The Court made a point in granting Frederiksen’s § 2255 motion that it considered “all factors” in his case to conclude counsel was ineffective. Frederiksen’s motion provided the Court factual details enough to allow District Judge Melgren, who was also the trial judge who advised him to file the motion, to find a basis to grant his IAC claims.
“Petitioner’s trial counsel’s performance was objectively unreasonable, and it deprived Petitioner of a fair trial,” the Court concluded. “Accordingly, the Court grants Petitioner’s motion to vacate.” See: United States v. Frederiksen, 2019 U.S. Dist. LEXIS 184292 (D. Kan. 2019).
Writer’s note: Mounting a successful claim that counsel failed to object is an uphill battle in a § 2255 motion. Strickland instructs the courts to assume that counsel’s actions were reasonable under the circumstances. And often these claims are summarily tossed by courts as either a “tactical decision” by counsel or because objecting would have been fruitless. But the Court here noted several times that Frederiksen’s lawyer failed in many respects, and the failure to object (which would have acquitted him) was the icing on the cake. Still, it’s instructive on what kind of “failure to object” claim rises to the level of prejudice under Strickland.
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Related legal case
United States v. Frederiksen
|Cite||2019 U.S. Dist. LEXIS 184292 (D. Kan. 2019)|