U.S. v. Voigt, 88-1821

• Decision Date: 07 June 1989
• Docket Number: No. 88-1821,88-1821
• Citation: 877 F.2d 1465
• Parties: 28 Fed. R. Evid. Serv. 424 UNITED STATES of America, Plaintiff-Appellee, v. Katherine Joanne VOIGT, Defendant-Appellant.
• Court: U.S. Court of Appeals — Tenth Circuit

Page 1465

877 F.2d 1465

28 Fed. R. Evid. Serv. 424

UNITED STATES of America, Plaintiff-Appellee, v. Katherine Joanne VOIGT, Defendant-Appellant.

No. 88-1821.

United States Court of Appeals Tenth Circuit.

June 7, 1989.

Kenneth P. Snoke, Asst. U.S. Atty. (Tony M. Graham, U.S. Atty., and Ron Wallace, Asst. U.S. Atty., with him on the briefs) for N.D.Okl., Tulsa, Okl., for plaintiff-appellee.

Wesley G. Gibson, Asst. Federal Public Defender for N.D. Okl., Tulsa, Okl., for defendant-appellant.

Before SEYMOUR, BARRETT and BRORBY, Circuit Judges.

BRORBY, Circuit Judge.

Ms. Voigt appeals her conviction of one count of conspiracy to violate 18 U.S.C. Sec. 1344 (Supp. II 1984) in violation of 18 U.S.C. Sec. 371 (1982), and forty-six counts of bank fraud in violation of 18 U.S.C. Sec. 1344 (Supp. II 1984). The case against Ms. Voigt was tried to the same jury which convicted co-defendants Bruce Bonnett, Carroll Bernard, and Lester Dierksen of the same and related criminal offenses. See United States v. Bonnett, 877 F.2d 1450 (10th Cir.1989); United States v. Bernard, 877 F.2d 1463 (10th Cir.1989); and United States v. Dierksen, No. 88-1712 Order & Judgment (filed June 6, 1989).

Ms. Voigt asserts seven errors, four of which we addressed in Bonnett. In addition to the matters discussed in Bonnett, Ms. Voigt asserts three errors: (1) ineffective assistance of counsel; (2) jury disregard of instructions; and (3) admission of improper expert witness opinions. We AFFIRM for the reasons set forth in Bonnett, and also for the reasons discussed herein.

I. Ineffective Assistance of Counsel

Ms. Voigt claims that her counsel, to alleviate severe migraine headaches, consumed and was under the influence of Demerol during most of the six-week trial. She argues trial counsel's continued representation while he was under the influence of Demerol was so inadequate as to amount to ineffective assistance of counsel, depriving Ms. Voigt of her Sixth Amendment rights. It appears this issue was not raised at the trial level and is before us for the first time. We are not persuaded by Ms. Voigt's argument.

Ms. Voigt states that Demerol is a "powerful depressant medication," but concedes in her brief: "It is unclear from the record how much counsel's performance and appellant Voigt's case was affected by [counsel's] heavy use of Demerol...." Ms. Voigt points to no citations from the record which directly support her assertions that counsel's performance was affected by the use of the medication; that counsel was taking medication or in what quantity; or the nature of the medication. Ms. Voigt asserts that her counsel performed "under the influence of Demerol." (Emphasis added.) This assertion is simply not supported by the facts. The record merely indicates that short continuances were granted on three occasions due to counsel's migraine headaches. It does not follow that counsel's performance was affected by the use of medication.

Ms. Voigt urges that her counsel's impairment is demonstrated by the following facts regarding his trial performance: (1) failure to argue for a severance; (2) inability to communicate with co-counsel due to medication; (3) failure to cross-examine a key government witness, Mr. Bill Martin; (4) failure to ask for a limiting instruction with regard to any of the Fed.R.Evid. 404(b) evidence stemming from government witnesses Brown, Jackson, Hammer, and the letter written by Edward L. Moore, plus "numerous documents and banking transactions"; (5) failure to ask for "an immediate limiting instruction at the time the [Rule] 404(b) material was offered that the evidence did not apply to appellant Voigt"; (6) decision "to put on no direct evidence" on behalf of Voigt; and (7) decision "to not place his client on the stand." We are not persuaded that Ms. Voigt was represented in a constitutionally defective manner.

In Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), the Supreme Court set forth the two elements that must be established to demonstrate counsel's assistance was so defective as to require the reversal of a conviction. First, it must be shown counsel committed serious errors so as to not be functioning as the "counsel" provided by the Sixth Amendment. Id. at 687, 104 S.Ct. at 2064. To determine whether counsel's performance comported with the Sixth Amendment, the inquiry is whether the attorney's conduct is reasonable in light of all the circumstances of the case. Id. This is an objective standard based on whether the reasonable defense attorney would act in the same manner as the defense counsel in the situation being analyzed. Id. at 688, 104 S.Ct. at 2064. Second, it must be shown that counsel's performance was prejudicial to the defense. Id. at 687, 104 S.Ct. at 2064. "The defendant must show that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Id. at 694, 104 S.Ct. at 2068.

Most recently in United States v. Rantz, 862 F.2d 808, 810 (10th Cir.), cert. denied, --- U.S. ----, 109 S.Ct. 1554, 103 L.Ed.2d 857 (1989), we commented on Strickland:

In order to find that counsel rendered ineffective assistance, it must be shown that counsel did not exercise "the skill, judgment and diligence of a reasonably competent defense attorney." United States v. Afflerbach, 754 F.2d 866, 870 (10th Cir.), cert. den., 472 U.S. 1029, 105 S.Ct. 3506, 87 L.Ed.2d 636 (1985). There is a strong presumption that counsel provided effective assistance of counsel and petitioner has the burden of proof to overcome that presumption. United States v. Cronic, 466 U.S. 648, 658, 104 S.Ct. 2039, 2046, 80 L.Ed.2d 657 (1984).

Under these standards, Ms. Voigt's argument is unpersuasive.

The fact that counsel failed to argue for a severance in this case is of little import. Requests for severance were in fact made on behalf of Ms. Voigt, albeit by other counsel. The record does not establish what effect, if any, the purported inability to communicate with co-counsel may have had on the conduct and outcome of the trial. The failure to cross-examine a witness does not necessitate a finding of ineffective assistance of counsel. Ms. Voigt has not even shown how cross-examination might have changed the outcome of the trial. This decision could simply have been part of trial counsel's strategy. Further, the failure of counsel to seek limiting instructions concerning the Rule 404(b) evidence seems nearly insignificant when one realizes that a proper limiting instruction was in fact given. The failure to seek an immediate Rule 404(b) instruction concerning Rule 404(b) material will not be considered by this court when appellant fails to bring to our attention the specific evidence which necessitated such an instruction. Appellant's failure to offer direct evidence in her own behalf is not sufficient by itself to show ineffective assistance of counsel.

Ms. Voigt has not shown counsel failed to exercise the skill, judgment, and diligence of a reasonably competent defense attorney. She has not met her burden of demonstrating a reasonable probability that but for counsel's unprofessional errors, the result of the proceeding would have been different.

II. Jury Disregard of Instructions

Ms. Voigt attached to her brief the affidavit of counsel for a co-defendant, Mr. Bernard, stating that Ms. Voigt was convicted due to her failure to take the witness stand. ¹ Ms. Voigt asserts this affidavit gives rise to grounds for a new trial based on jury misconduct. During oral argument before this court, counsel for Mr. Bernard was asked if she had personally contacted the juror, and counsel admitted that she had done so. ² Ms. Voigt has cited us to no authority to support her position concerning this issue.

Fed.R.Evid. 606(b) provides that a juror may not testify as to any matter occurring during the course of the jury's deliberations or to the effect of anything upon that or any other juror's mind. The rule further provides that neither a juror's affidavit nor evidence of any statement by the juror concerning a matter about which the juror would be precluded from testifying may be received for these purposes. In United States v. Miller, 806 F.2d 223 (10th Cir.1986), we affirmed the trial court's denial of the defendant's motion to make inquiry of a juror who reportedly had told her pastor, in part, that she may have misunderstood the court's instructions and may have been unduly influenced by the other jurors. We stated: "It is settled law that juror testimony is inadmissible to impeach a verdict, except where the proffered testimony relates to 'whether extraneous prejudicial information' or any 'outside influence was improperly brought to bear upon any juror.' Federal Rule of Evidence 606(b)...." Id. at 225 n. 2. Furthermore, in United States v. Jelsma, 630 F.2d 778 (10th Cir.1980), when appellant presented affidavits of jurors in an effort to impeach the verdict, we stated:

Federal Rule of Evidence 606(b) specifically precludes judicial "inquiry into the validity of a verdict." For very good reasons, this court may not examine the factors "influencing [a juror] to assent to or dissent from the verdict." See United States v. Greer, 620 F.2d 1383, 1385 (10th Cir.1980). Appellant relies on Mr. Justice Cardozo's opinion in Clark v. United States, 289 U.S. 1, 53 S.Ct. 465, 77 L.Ed. 993 (1932), for authority to "let the light in" on jury deliberations. However, Clark involved the serious question, not present here, of a juror's fraudulent presence on the panel. Only then, once a prima facie case of fraud was presented, did the Court permit breach of the sanctity of the jury room. Rule 606(b) itself provides exceptions for determining "whether extraneous prejudicial information was improperly brought to the jury's attention or...