U.S. v. Wilk

• Decision Date: 29 June 2009
• Docket Number: No. 07-14176.,No. 07-14196.,07-14176.,07-14196.
• Citation: 572 F.3d 1229
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Kenneth WILK, a.k.a. Kenneth P. Wilk, Defendant-Appellant.
• Court: U.S. Court of Appeals — Eleventh Circuit

572 F.3d 1229

UNITED STATES of America, Plaintiff-Appellee, v. Kenneth WILK, a.k.a. Kenneth P. Wilk, Defendant-Appellant.

No. 07-14176.

No. 07-14196.

United States Court of Appeals, Eleventh Circuit.

June 29, 2009.

Jose Rafael Rodriguez (Court-Appointed), Rodriguez & Fernandez, PA, Miami, FL, William Donald Matthewman (Court-Appointed), Coral Springs, FL, for Defendant-Appellant.

Evelio J. Yera, Anne R. Schultz, Kathleen M. Salyer, Miami, FL, Phillip DiRosa, Ft. Lauderdale, FL, for Plaintiff-Appellee.

Appeals from the United States District Court for the Southern District of Florida.

Before DUBINA, Chief Judge, and BIRCH and WILSON, Circuit Judges.

WILSON, Circuit Judge:

Kenneth Wilk appeals his convictions for unlawfully killing a state law enforcement officer assisting in a federal investigation, attempted second-degree murder of a state law enforcement officer assisting in a federal investigation, knowingly carrying and using a firearm during and in relation to a crime of violence, possession of child pornography, obstruction of justice, and conspiracy. After thoroughly reviewing the record and considering the parties' briefs, and with the benefit of oral argument, we affirm.

I. BACKGROUND

In the summer of 2001, Wilk's domestic partner, Kelly Ray Jones, was arrested and convicted on child pornography charges.¹ During Jones's prosecution, Wilk made threats against law enforcement personnel, some of which he made online under his computer screen name "Wolfpackeines." Wilk's online profile listed hobbies such as "hunting cops," occupations such as "cop bashing," and "alerting people about kiddy porn stings." Around this time, Wilk purchased several firearms and participated in firearm skill shooting contests throughout Florida. Wilk purchased additional firearms in 2002 and 2003.

On July 12, 2004, while on supervised release, Jones sent images depicting child pornography to an undercover law enforcement agent. The images were transmitted from Wilk's internet account on a computer at the residence shared by Jones and Wilk. After further investigation, law enforcement obtained and executed a search warrant on the residence. Officers recovered numerous child pornography images and arrested Jones on the scene.

While Jones was incarcerated, he instructed Wilk to contact a witness whom the police had told Jones not to contact. Wilk went to the witness's apartment to dissuade him from cooperating with law enforcement. At Jones's direction, Wilk sent derogatory e-mails to the witness's business associate in an attempt to discredit the witness. Further communication between Jones and Wilk suggested that Wilk planned to threaten or kill a witness against Jones. Also at Jones's instruction, Wilk deleted e-mails relevant to Jones's child pornography charges.

Federal agents obtained an arrest warrant for Wilk and a search warrant for his residence. Early in the morning of August 19, 2004, Deputy Sheriff Todd Fatta and Sergeant Angelo Cedeno of the Broward County Sheriff's Office ("BCSO") assisted federal agents, including Immigration and Customs Enforcement Agent Christopher Harvey, in executing the warrants. The agents initially planned to use a ruse to lure Wilk from the residence but abandoned the idea after learning that Wilk anticipated such a tactic. Cedeno determined the officers' assignments and the order of entry. After surrounding Wilk's residence and announcing themselves, the officers forcibly entered.

Fatta entered the residence first, followed by Cedeno. Upon entry, two large caliber gunshots were heard, followed by several smaller caliber gunshots. The other officers opened fire, allowing an injured Cedeno to escape. Wilk appeared at the open front door and surrendered, and the officers found a gun in the doorway where Wilk exited. Inside the residence, officers found Fatta on the floor, motionless and not breathing. Despite revival attempts, he died from a shot to the chest.² Other than Wilk, no one was found in the residence. Tests on Fatta's gun revealed that he fired no shot.

A second superseding indictment charged Wilk with seven Counts: (1) killing Fatta, a state law enforcement officer, while Fatta assisted in a federal investigation, in violation of 18 U.S.C. §§ 1121(a)(1)(A) and 1111; (2) killing Fatta, a state law enforcement officer, while Fatta assisted a federal agent engaged in the performance of his official duties, in violation of 18 U.S.C. §§ 1111(a) and 1114; (3) attempting to kill Cedeno, a state law enforcement officer, while Cedeno assisted a federal agent engaged in the performance of official duties, in violation of 18 U.S.C. §§ 1113 and 1114; (4) knowingly carrying and using a firearm during and in relation to a crime of violence, i.e., the killing and attempted killing of individuals assisting a federal officer, in violation of 18 U.S.C. §§ 924(c)(1) and 924(j)(1); (5) obstruction of justice in connection with the federal prosecution of Jones, in violation of 18 U.S.C. § 1503(a); (6) possession of child pornography, in violation of 18 U.S.C. §§ 2252A(a)(5)(B) and 2; and (7) conspiring to tamper with a witness and destroy evidence, in violation of 18 U.S.C. § 1512(k).

At trial, Wilk testified for six days in his defense. He testified that on the morning of August 19, 2004, he was in his home drinking a cup of coffee and heard no police announcement. Wilk explained that on that morning, he was suffering from an ear infection that impaired his hearing, which was corroborated by expert testimony. According to Wilk, he heard a crashing noise and grabbed his gun, fearing that he was being attacked because he had previously been a victim of anti-gay vandalism and hate mail. Wilk testified that a dark figure, pointing a gun in Wilk's direction, stood in the living room and confronted him and that no police markings were visible. Wilk asserted that he fired his gun in fear for his life and that he acted in self-defense. One of Wilk's experts testified that Wilk suffered from AIDS dementia at the time and that Wilk's ability to assess a stressful situation was impaired. Wilk also presented expert testimony that at the time of the shooting, he suffered from diminished capacity, neurological disorders, brain damage, and was insane.

The jury returned guilty verdicts on all counts except Count 3, on which the jury found Wilk guilty of the lesser-included offense of the attempted second-degree murder of Cedeno.

II. DISCUSSION

Wilk challenges on appeal numerous rulings by the district court. Among other things, Wilk argues that the district court improperly excluded evidence of the slain law enforcement officer's steroid use and evidence pertaining to proper police procedures; erred by failing to suppress evidence of Wilk's confidential medical records; and erred by modifying the self-defense jury instruction. We address each of these issues in turn.

A. Evidence of Steroid Use and Proper Police Procedures

Wilk contends that the district court improperly excluded evidence of Fatta's steroid use and evidence that the officers did not follow proper police procedures when they entered Wilk's home. We review evidentiary rulings for abuse of discretion. United States v. Perez-Oliveros, 479 F.3d 779, 783 (11th Cir.), cert. denied, 551 U.S. 1126, 127 S.Ct. 2964, 168 L.Ed.2d 284 (2007). An abuse of discretion occurs if the district court applies an incorrect legal standard or makes findings of fact that are clearly erroneous. United States v. Izquierdo, 448 F.3d 1269, 1276 (11th Cir.2006).

Fatta's post-mortem examination revealed that he had steroids in his blood, and Wilk sought to admit this evidence as relevant to his self-defense claim. In excluding the evidence, the district court found that with respect to Wilk's defense, Fatta's steroid use was clearly irrelevant, would not tend to prove or disprove any material fact at issue, and that the prejudicial effect and confusion of the issues substantially outweighed any probative value of the evidence. Wilk maintains that this evidence was relevant to his defense because a person on steroids can act aggressively and erratically, which would have corroborated his testimony that the officers acted like armed home invaders instead of police officers. Wilk asserts that the exclusion of the steroid evidence denied him the opportunity to (1) rebut government's theory of motive; (2) demonstrate the state of mind and level of intent; (3) corroborate his claim of self-defense; (4) present his version of events to the jury; and (5) establish his claim of self-defense.

Federal Rule of Evidence 401 defines relevant evidence as that which has "any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence." Yet relevant "evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury...." FED. R. EVID. 403.

Wilk fails to show how the district court abused its discretion in excluding the steroid evidence. We agree with the district court that Fatta's and the other officers' actions at the time of entry were relevant to Wilk's defense, but that the underlying reasons for Fatta's mode of entry tended to neither prove nor disprove any material fact at issue. Further, we find incredible Wilk's claim that he was unable to present his version of events to the jury, as he testified in his defense for six days. Indeed, even Wilk's record testimony that he was confronted by a dark figure standing in his living room, pointing a gun in Wilk's direction, fails to corroborate his assertion that Fatta acted aggressively or erratically. The strongest evidence supporting any aggressive or erratic behavior is that Fatta kicked out the front window of the residence. Yet the record reflects that Fatta did so only as the other officers were attempting, without...