*1 613 whole, may en as a they abuse, be true that higher guideline has a level undermined defense credibility counsel’s to than kidnapping Thus, alone. it was abso- However, degree. some small lutely defense coun- correct under the Guidelines for the sel was not innocent this matter —he un- impose court to the sentence for sexuаl dermined his credibility own as well. In abuse. again, Once Defendants’ “claim” is light above, of the circumstances described without merit on its face. especially light judge’s of the instruct- ing jury disregard to questions his own Judgment F. The Should Be Corrected comments, or judge’s improper com- parties Both agree that the judgment in- ments do not amount plain, to error. correctly states that Blair was kidnapped and held government, for ransom. The asks that E. Previous Trial in State Court judgment be corrected reflect that she acknowledging that, While under the dual kidnapped ransom, and “held for reward doctrine, sovereign jeopardy double is or otherwise.” hereby grant We this rе- applicable, argue Defendants that this feder quest. prosecution al constitutes violation of the Department of policy, Justice’s Petite accord III. Conclusion ing to department which the prose will not For foregoing reasons, we instruct the cute a federal following offense prose district court to correct the judgment to re- cution for the same act unless it necessary is flect that the defendant was “held for ran- compelling advance interests of law som, otherwise,” reward or and otherwise enforcement. Brief at (citing Defendants’ affirm Defendants’ convictions and sentences. States, Petite v. United 80 S.Ct. (1960)).
However, Defendants admit that “violation
of the policy Petite rights confers no upon
the accused.” Id. (citing United
Renfro,
(6th Cir.1980),
fendants “submit the conviction and punishment meted out in the District Court
violated their double jeopardy and pro due PARKER, Phil Respondent-Appellee. rights cess under the Fifth Amendment to No. 92-4137. light Constitution.” Id. of Defen admissions, dants’ own their claim facially United States Appeals, Court without merit. Sixth Circuit. Similarly, Defendants ask this court Argued Aug. 1993. consider their whether sentences un- they lawful Decided because were not Dec. 1993. sentenced “sim- ply for kidnapping.” at They Id. 48-49. Rehearing Denied Feb. 1994. offer no argument except point that, out they only had been sentenced for kidnapping,
their sentences lighter. would been have
However, by admission, own Defendants’
where a victim is kidnapped to facilitatе offense, commission of another and the level
for the greater offense other than the level simpliciter, kidnapping re- Guidelines
quire apply a court to the heavier sentence. 2A4.1(5). §
U.S.S.G. present case, In the
the kidnapping facilitated criminal sexual *2 County, Ohio Cuyahoga January a indictment a jury three-count
grand returned rape, en- Martin, charging him with against Al- children, battery. and sexuаl dangering an sexually abused that Martin leging descent, the indict- Korean son adopted of report of abuse the son’s from ment resulted attempt- the son’s personnel after hospital alleged inci- time of At the ed suicide. dents, boy thirteen was between age. years of fifteen jury convict- three-day Following a a Seрtember charges. On of all ed Martin of to a term sentenced Martin trial court imprisonment on the twenty-five years ten to count, merged with the en- rape count, two- a consecutive dangerment imprisonment on the sexual of year term Court Subsequently, the Ohio battery count. judg- trial court’s Appeals affirmed of ment, Supreme overruled Court and the Ohio appeal. application for leave Martin’s peti- a February Martin filed On raised habeas for a of tion writ (1) mis- prosecutorial of error: eight points (2) un- conduct; of an admission erroneous (3) of in- opinion; expert elicitation qualified charge hearsay a of re- to rebut аdmissible evidence; (5) (4) fabrication; insufficient cent (6) counsel; improp- of assistance ineffective (argued), Daniel T. Todt B. force in John Gibbons on the of jury element er instruction OH, Cleveland, Associates, petitioner- (7) by the improper & review rape charge; (8) court; appellant. deprivation appellate effect of to the process cumulative due due (briefed), pro se. George L. Martin referred district court the errors. The (ar- Atty. Keyser, Gen. Asst. G. Donald: judge recom- magistrate to a case Columbus, OH, briefed), for re- gued and of the writ because dismissal mended spondent-appellee. not, in alleged majority errors wеre of the did fact, errors, committed errors and . Before: MARTIN fair, Martin deprive SUHRHEINRICH, Judges; and Circuit Report timely objections to filed WELLFORD, Judge. Circuit Senior Recommendation, con- court district novo review of his petition. On a de ducted PER CURIAM. adopted court the district September Martin, pro George L. se Ohio Petitioner dismissed magistrаte’s recommendation district court’s appeals from the prisoner, corpus. petition for a writ habeas for writ of habeas denial his timely followed. appeal This contends that corpus. Martin fair, ap- reaching the merits of Before trial in an Ohio him a misconduct denied whether must first reasons, peal, this consider following Court- county For court. rem- his has exhausted available grant Martin holding and court’s reverse district 2254(b), § exhaus- 28 U.S.C. Under edies. corpus petition. the habeas tion of “the remedies available the courts cide protect “to family” and to do “what required of the State” a federal before do, the mother wouldn’t prоtect the kids.” grant application court can for the writ of The furthered this innuendo dur- corpus. habeas Because the state here did ing opening statement claiming that *3 not contest exhaustion and Martin because adopted Martin’s daughter, Cathy Garcia, did exhaust concerning his state remedies was the victim of “a sеries of physi- unusual issues, the substantial we conclude that “the punishments.” cal objection, Over Martin’s comity interests of and federalism will be prosecutor the also testimony elicited on di- by addressing better served the merits forth rect examination from Garcia that on one Perini, 342, with.” Cobb v. 832 F.2d 344-45 “punched” Martin had occasion her in the (6th Cir.1987) Grеer, (quoting Granberry v. face and floor, her knocked to the in the 129, 134, 481 U.S. 107 S.Ct. 95 mistaken belief that she had something done (1987)), denied, L.Ed.2d 119 cert. 486 U.S. wrong. Through his comments ques- and 1024, 1998, 100 (1988). 108 S.Ct. L.Ed.2d 230 tions, prosecutor the attempted, in direct contravention of order, the trial court’s Our review of Martin’s for show that Martin acted in conformity with corpus petition writ of habeas necessarily character parent his physically, as gives restricted. This Court complete defer verbally sexually and abused his children. ence to findings state court sup that are ported by Lundy the evidence. Campbell, addition, In prosecutor the pro- exhibited a (6th Cir.1989), 888 F.2d 469-70 cert. pensity for highly prejudicial comments denied, 110 S.Ct. 109 throughout the During trial. cross-examina- (1990). Moreover, L.Ed.2d 538 while we re tion, prosecutor the asked Martin whether he view de novo the district court’s refusal to had adopted abused his daughter and wheth- grant petition, a habeas we review the dis er Martin had a different standard of treat- trict findings only court’s factual for clear аdopted ment for his children than for his Dutton, error. McCall 863 F.2d natural children. He also asked Martin (6th Cir.1988), cert. whether he had used certain epithets racial (1989). in reference to adopted each of his children. initially alleges appeal Martin prosecutor The inquired further ge- into the prosecutorial misconduct him denied a fair netics raising involved pure-bred in Specifically, trial. Martin claims that the German Shepherds, suggesting that Martin prosecutor’s opening closing arguments and applied genetic the same purity stan- and cross-examination prejudicial dards to his family. own mixed-race prosecutor wrongly the introduced evi During closing statement, his prosecu- the uncharged dence of acts and of his character. tor called Martin a “dictator” and stated that considering After the cumulative effect of Martin was “most incredible witness errors, agree these process that due hear, you’ll ever one of the most obnoxious not satisfied in this In aggrеgate, case. you’ll witnesses hear.” prosecutor ever The the effect of prejudicial these errors “was so also characterized as a “disturbed toas strike at fundamental fairness of individual” with problems.” “some real Fi- Parker, the trial.” United States v. 997 F.2d . nally, drawing connections the case between (6th Cir.1993) at Owens’ gold-mеtal-winning Jesse trial Prior to defense counsel filed a mo- performance Hitler, in front of Adolf in tion limine determine admissibility prosecutor directly compared Martin to Hit- testimony. other acts granting ler: motion, the court ordered to introduce such evidence park he until secured [across And in the middle of the apprоval. the trial court’s Despite the is] street from the courthouse ... a statue order, court’s Clevelander, Owens, who, opening argu- Jesse ment alluded to the possibility that Martin point made, there's some to be siniflarities had abused other children in the household Fifty-three years ago in this case. at this by claiming attempted son had sui- wаs in the summer time- n year-it time of you tough moves courageous front most he was in And Berlin.... in he was comes here see. He want very crowd ever hostile in a individual
.of
want
something he doesn’t
environment,
about
bigoted
testifies
environ-
very racist
no interest
do, something he has
bigoted, racist environ-
ment,
most
father.
hurting his
doing,
in the existence
mеnt,
ever
probably,
world,
at
rate.
world, modern
Transcript
472-76.
at
Trial
in from
guy,
comes
And here
prosecu
unseemly
comments
Such
Cleveland,
from East
small kid
streets
right to a fair
compromised
tor
right into the center
He comes
Tech....
corpus relief
grants habeas
This court
war.
right prior to the
Germany,
Nazi
*4
prose
the
improprieties where
the
watching this is
stands
in the
Right
to
egregious as
are
statements
so
cutor’s
goof up
himself,
goose-stepping
the
führer
“fundamentally un
trial
the entire
render
there,
this
believes in
there,
sitting
Overberg,
F.2d
608
682
Angel v.
fair.”
this
believes in
also. He
issue
superiority
Cir.1982).
recognized, in
(6th
As we have
Aryans were the
that
thing and
the
genetic
“invoke
remarks
flammаtory prosecutorial
of
he had all kinds
And
superior race.
jury’s determi
may cloud the
emotions
say
sayings to
about blacks.
nasty little
guilt.” United
defendant’s]
[the
of
nation
taking on
guy
the —the
this
here is
And
(6th
F.3d 706, 712
Cir.
2
Payne,
v.
States
the favorites
champions, which
predicted
1993).
deplorable
Here,
especially
we find
them, in
called
Aryans, as he
sоme
were
suggest to the
attempt
to
the
events,
this Owens
there.
and
the
ar
and final
jury through cross-examination
But,
guy-
soft-spoken
a
And he was
and
similarity
a
between
gument
of
the course
over
day and —or
an
comparison creates
Such a
Adolf Hitler.
ago he
week,
fifty-three years
and
eyes of the
prejudice
the
ovеrwhelming
in
he
in his actions when
spoke
He
spoke.
North,
F.2d
910
jury.
States v.
See United
field there
track and
on that
went out
(D.C.Cir.)
(favorably comparing de
895
gold
Olympic
won four
He
did
events.
Adolph Hitler
strategy
of
to that
fendant’s
big-time
this
he humiliated
medals
inflammatory”),
“[unquestionably
modified
silly,
all his
up there with
sitting
führer
(D.C.Cir.1990), cert.
940
part,
920 F.2d
him,
theories,
as con-
humiliated
ridiculous
—
-,
114
S.Ct.
U.S.
111
years later
nine
allies did
vincingly as the
(1991);
v.
Stein
477
United
L.Ed.2d
This
him in the war.
they defeated
when
Cir.1980)
(6th
koetter,
633
720-21
F.2d
ever
out there without
himself went
man
comparison of defendant
(prosecutor’s
giving a speech,
saying political word or
a
Iscariot
and Judas
mandates
Pilate
Pontius
man was chased
wrong this
proved how
reversal).
improрer
the
highly
Also
so he
of
stadium
out
the
little führer
the
to Martin
references
prosecutor’s deliberate
a black
hands with
to shake
have
didn’t
individual,” a
“dictator,” a
a
“disturbed
as
man.
problems” and “one
“real
who has some
man
some
The führer had
up.
guy
This
stood
you’ll ever
witnesses
of
most obnoxious
congratulating the
ceremоny
he was
characterizations
These unwarranted
hear.”
...
of
ran
out
personally, but he
winners
impermissible “foul
blows.”
the level
reach
be-
first time Owens won
the stadium the
Steinkoetter,
F.2d at 720-21.
633
gold
hand the
want
he didn’t
cause
give that hand-
want to
He didn’t
medal.
heinous
charged
are
offenses
While
fallacy
man
admit the
a
to black
shakе
guilty defendant
respects,
all
most
even
theories.
of his ridiculous
involving
fair
Cases
to a
is entitled
an almost irresistible
abuse exert
guy
sexual
courageous manner that
the same
bench
emotions
way
pressure on the
acted,
up,
guy
way
stood
typically turn
such
führer,
alike.
cases
bar
Because
see
up to that
guy
stood
defendant
credibilities
on the relative
this
ease.
we have
Here
similarities in
however,
witness,
prosecuting
now,
16-year-old kid
comes
15-year-old,
evidence
to the rules
adherence
strict
one of
and makes
in this courtroom
appropriate prosecutorial
required
conduct is
judge
state trial
in a habеas corpus proceed
ing
usually
ensure
fair trial.
not a basis for federal relief.
Cooper
Sowders,
(6th
837 F.2d
Here,
prosecutor’s improper
comments
Cir.1988).
Powell,
See
Stone v.
428 U.S.
references,
repeated
despite
and his
the trial
3037, 3052,
96 S.Ct
.
judge’s warning, to
prior
bad acts
(1976) (“[Wjhere the
provided
State has
deny
right
combined tо
Martin his
to a fair
opportunity for full
litigation
and fair
guilt
trial. Had the evidence of
been over
claim,
Fourth Amendment
prisoner
whelming
case,
in this
in isolation
errors
may
granted
not be
federal habeas
may have been considered harmless. See
ground
relief on the
that evidence obtained in
Chapman
California,
18, 24,
an unconstitutional search or seizure was
824, 828, 17
(1967)
S.Ct.
(holding
L.Ed.2d 705
trial”).
introduced at his
Petitioner is not
that an
if
appears
error
harmless
“be
constitutionally
perfect
entitled to a
or an
yond a reasonable doubt that the error com
error-free
particularly with regard plained of did not contribute to the verdict
evidentiary rulings of thе
judge.
See
obtained”). However, where,
here,
as
Arsdall,
Delaware v.
Van
guilt
evidence of
conflicting,
is at best
egre
*5
(1986).
gious prosecutorial misconduct of this kind Accordingly,
while
error
undoubtedly
was
rises to the level of a
depriva
constitutional
case,
committed
it was not
signifi
so
tion, denying the defendant a fundamentally
cаnt as
require
this court to reverse the
Payne,
fair trial.
See
F.3d at 715-16. district court’s decision.
Accordingly, Martin is entitled to a new trial
regard
With
to the admission of evidence
charges.
on all
regarding
wrongful
other
activity by
peti
Having granted
petition
for a writ
tioner-defendant
relating
charged
to his
of habeas
corpus
ground
prosecuto-
offenses,
criminal
I believe the
is that
rule
misconduct,
rial
we need not address Mar-
such evidence may be
probative
admissible if
remaining
tin’s
claims. Accordingly, we re-
“intent, preparation,
plan”
or
part
on the
verse the
decision
the district court and
of a criminal defendant. See
United
grant the writ of
corpus,
habeas
with orders
Gessa,
(6th Cir.1992).
an error of which we cognizance. must take
An erroneous admission of evidence