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Poandl v. United States

United States District Court, S.D. Ohio, Western Division

April 5, 2017

Robert Poandl, Petitioner,
v.
United States of America, Respondent.

          OPINION AND ORDER

          MICHAEL R. BARRETT, Judge

         This matter is before the Court on Petitioner Robert Poandl's Motion to Vacate under 28 U.S.C. § 2255 and Declarations in Support of his Motion to Vacate. (Docs. 100, 106-1, 106-2, 106-3). The United States has filed a Memorandum in Opposition (Doc. 112), to which Petitioner has replied (Doc. 113).

         I. Prior Proceedings

         In 2012, a jury found Petitioner guilty of transporting a minor in interstate commerce with the intent to engage in sexual activity in violation of 18 U.S.C. § 2423. The charge stems from a trip Petitioner allegedly took on August 3, 1991. At the time, Petitioner was a Catholic priest, and he was travelling from Cincinnati, Ohio to Spencer, West Virginia to cover mass for another priest, Paul Fredette. David Harper, the alleged victim, accompanied him on that trip. David Harper was then ten years old. At trial, David's mother, Barbara Harper, explained the relationship between the Harper family and Petitioner, and how it came about that David accompanied Petitioner on the trip:

Barbara Harper, David Harper's mother, testified that she and her husband, Mike, moved to Cincinnati in 1988 with their four children: Chris, Joe, David, and Amanda. Devout Catholics, she and Mike became involved in Marriage Encounters, a weekend retreat program designed to strengthen marriages. Each Marriage Encounters group featured three couples and a priest. Poandl was the priest for the Harpers's Marriage Encounters group.
In November 1990, Mike Harper lost his job. Because of this, during the spring and summer of 1991, Poandl came to their house frequently, often unannounced. When he came, he would often bring food, and once he gave the couple money to pay bills.
Although she could not remember the “exact date, ” Barbara believed that sometime “around August” of 1991, Poandl came by the house and told her that he had to cover a mass in West Virginia. She testified that Poandl arrived at her house before dinner, probably around 4:30 or 5:00 in the afternoon. Poandl asked Barbara if one of her sons could accompany him on the trip to keep him company and to help him stay awake at the wheel. She asked David, then ten years old, if he would be willing to go, and he initially refused. Barbara responded, “Father Bob has been so good to us, you know. Please go with him.” Barbara packed David an overnight bag and watched as Poandl and her son left. She testified that they left in a blue-gray sedan.
When David returned the next morning, Barbara noticed that he did not look well. She asked him if he was all right, to which David replied that he felt sick because Poandl had given him cornflakes with lemonade for breakfast. He asked if he ever had to go anywhere with Poandl again; Barbara answered that he did not. He then ran upstairs, clearly upset. Weeks later, Poandl came by the house and told Barbara that he would not be visiting the Harpers's house anymore because none of her sons showed promise to be priests. It is uncontested that Marriage Encounters is not a recruitment program for priests.

United States v. Poandl, 612 F.App'x 356, 358 (6th Cir. 2015).

         At trial, David Harper testified that:

Poandl took him on a trip in the late summer of 1991, around August, when he was ten-years-old. They left late in the afternoon or early evening, “probably six or five.” Poandl drove a sedan that David remembered him driving on other occasions. When the two arrived in West Virginia, they spent the night in the rectory at the church. David awoke at some point in the night to find that Poandl had entered his bed and had his hand in David's pants, fondling David's genitalia. When David asked what he was doing, Poandl replied that he was checking to see if David was wearing underwear. David fell asleep again, only to be awakened later by Poandl sodomizing him. David cried out, “What are you doing to me?” to which Poandl replied, “We're having sex.” After Poandl finished, he seemed extremely remorseful and kept repeating, “I did a bad thing. I did a bad thing.” After regaining composure, he said to David, “You sinned, and I sinned, and we need to pray to God for forgiveness, ” at which point they prayed together. David remembered semen running down his leg, to the point that Poandl told him that he should go clean himself up.
The next day, Poandl told David repeatedly to keep to himself what had happened.

Id. at 359-360. David Harper testified that he did not tell anyone what had happened until 2009. Id. at 360.

         Other witnesses at trial included Lauren Cope, David Harper's fiancée; Joseph W. Harper, David Harper's brother; Karen Fredette, who in August of 1991, was the secretary of the Holy Redeemer Church where Petitioner was covering mass for Paul Fredette; and Larry Handorf, a private investigator hired by the mission where Poandl was based in 1991.

         After the jury found Petitioner guilty, this Court held a sentencing hearing and sentenced Petitioner to a prison term of ninety months. This Court denied Petitioner's motion for judgment of acquittal and motion for a new trial. On appeal to the Sixth Circuit Court of Appeals, Petitioner's conviction was affirmed.

         II. Section 2255 Claim

         Petitioner asserts that he was denied the effective assistance of counsel in violation of the Sixth Amendment to the United States Constitution. Petitioner's claim can be broken down into eleven subclaims:

a) Counsel failed to object to a substantial quantity of inadmissible, highly prejudicial testimony, and no conceivable strategy explains the failure to object;
b) The prosecutor mischaracterized testimony of a key witness, Karen Fredette, and counsel failed to object;
c) The prosecution made defense counsel a percipient witness, and counsel failed to object, seek a corrective instruction, or move to withdraw;
d) Counsel failed to object to an improper and highly prejudicial closing argument;
e) Counsel failed to impeach Karen Fredette for bias despite being on notice that she had become hostile to Petitioner;
f) Counsel made no effort to impeach the alleged victim, David Harper with evidence that Harper attempted to obstruct justice;
g) Counsel failed to investigate and offer evidence that David Harper's drug use and addiction could explain his belief that his allegations were true even if they were not;
h) Counsel failed to enlist expert help in selecting a jury in a high profile case with substantial publicity surrounding priest sexual misconduct generally and the defendant's case in particular;
i) Counsel failed to monitor publicity during trial and to request the Court to assure that jurors were not aware of it;
j) Counsel failed to adequately advise Petitioner of his options with respect to testifying and the circumstances in which the government might offer Federal Rule of Evidence 414 evidence; and failed to investigate the background of Jeffrey Allen Hutchison upon whom the government would have relied to present Rule 414 evidence; and
k) Counsel was unprepared for the sentencing hearing, which is evidence of the inadequacy of counsel across the board.

         III. Analysis

         A prisoner seeking relief under 28 U.S.C. § 2255 must allege either “(1) an error of constitutional magnitude; (2) a sentence imposed outside the statutory limits; or (3) an error of fact or law that was so fundamental as to render the entire proceeding invalid.” Mallett v. United States, 334 F.3d 491, 496-97 (6th Cir. 2003) (quoting Weinberger v. United States, 268 F.3d 346, 351 (6th Cir. 2001)).

         “In reviewing a § 2255 motion in which a factual dispute arises, ‘the habeas court must hold an evidentiary hearing to determine the truth of the petitioner's claims.' ” Valentine v. United States, 488 F.3d 325, 333 (6th Cir. 2007) (quoting Turner v. United States, 183 F.3d 474, 477 (6th Cir. 1999)). However, “no hearing is required if the petitioner's allegations cannot be accepted as true because they are contradicted by the record, inherently incredible, or conclusions rather than statements of fact.” Id. (quoting Arredondo v. United States, 178 F.3d 778, 782 (6th Cir. 1999)).

         A petitioner claiming ineffective assistance of counsel must show that his attorney's performance was so inadequate as to violate his Sixth Amendment rights. Strickland v. Washington, 466 U.S. 668, 687 (1984). Strickland's two-part test governs claims of ineffective assistance of counsel. Under the first or “performance” prong, the petitioner must show that his counsel's representation “fell below an objective standard of reasonableness.” Id. at 688. A court considering a claim of ineffective assistance must “indulge a strong presumption that counsel's conduct falls within a wide range of professional assistance; that is, the defendant must overcome the presumption that, under the circumstances, the challenged conduct might be considered sound trial strategy.” Id. at 689. Under the second or “prejudice” prong, the petitioner 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. “A reasonable probability is a probability sufficient to undermine confidence in the outcome.” Id. When assessing prejudice, a court “must consider the totality of the evidence before the jury . . . . [A] verdict or conclusion only weakly supported by the record is more likely to have been affected by errors than one with overwhelming record support.” Id. at 695. If the defendant fails to prove either deficiency or prejudice, then the defendant's ineffective assistance of counsel claims fail. Id. at 697.

         With those standards in mind, the Court now turns to a review of the alleged errors identified by Petitioner.

         A. Failure to object

         1. Testimony of Lauren Cope, Barbara Harper, and Joseph Harper

         Petitioner argues counsel was ineffective for failing to object to testimony on a number of occasions. First, Petitioner argues that it was error for defense counsel to fail to object to certain testimony of Lauren Cope, Barbara Harper, and Joseph Harper. Petitioner explains that the prosecutor elicited testimony from these witnesses that would establish that David Harper made the same allegations about Petitioner to them as he was making at trial. Petitioner argues that even though these witnesses did not repeat the actual words David Harper said to them, this testimony was inadmissible hearsay. Petitioner explains that David Harper was then called to testify that he made the allegations to his fiancée, mother and brother. Petitioner argues the credibility of David Harper's testimony was therefore bolstered by the earlier testimony of his fiancé, mother and brother.

         Under Federal Rule of Evidence 801(d)(1)(B), a prior statement is not hearsay if the statement “is consistent with the declarant's testimony and is offered . . . to rebut and express or implied charge that the declarant recently fabricated it or acted from a recent improper influence or motive in so testifying.” In Tome v. United States, the Court determined a victim's statements made to witnesses were not admissible as a prior consistent statement under Rule 801(d)(1)(B) because the statements were made after her alleged motive to fabricate the testimony arose. 513 U.S. 150, 160-61115 S.Ct. 696, 130 L.Ed.2d 574 (1995).

         The Court finds that an analysis under Rule 801(d)(1)(B) is unnecessary. Prior to trial, counsel for Petitioner filed a Motion in Limine seeking to bar the Government from introducing statements David Harper made to his girlfriend and parents recounting the alleged sexual abuse by Petitioner. (Doc. 31). The Government responded to Petitioner's Motion and stated that it “does not intend to offer any of the identified out-of-court statements made by DH to his girlfriend or his parents through either DH's girlfriend or parents.” (Doc. 35).

         In addition, counsel for Petitioner successfully objected to any statements coming in during the direct examination of Lauren Cope by the Government:

Q. I'm going to direct your attention to the summer of 2009. Can you tell the jury what the status of your relationship with David was at that time?
A. We had a falling-out at one time in the summer of 2009.
Q. Can you tell the jury what happened that led to that?
A. We went to dinner, and we were just having a conversation. We had --we were pretty serious in our relationship, had talked about the future, and I had brought up that I wanted kids and wanted to have a wedding in a Catholic church, and he seemed very standoffish.
MR. WENKE: Objection as to what he would say, Your Honor.
THE COURT: Ma'am, you can't testify as to what he said. You may testify as to his -- as to your observations of his physical appearance and what you did in response to anything that he would have said, but you can't tell the jury what he told you.
That's called hearsay, guys, just so you know.
Go ahead.
MS. MUNCY: Your Honor, for the record, she did not say he made a statement. She said how he appeared.
THE COURT: I understand that, and I think the question -- I believe the objection was a cautionary one.
MS. MUNCY: Thank you.

(Doc. 60, PAGEID #241-42). The Government then continued to question Lauren Cope about the conversation between David and herself. (Id., PAGEID #242-43). At no time did Cope testify as to any of the statements David made. Instead, Cope described David's appearance and the advice she gave him. (Id., PAGEID #242, 243).

         Petitioner points out that the Government argued during closing arguments that David Harper told Lauren Cope about the accusations against Petitioner. (See Doc. 68, PAGEID # 801) (“And ask yourselves just for a minute -- David has this conversation with Lauren, the woman he loves that he's getting ready to marry, maybe, until she brings up the Catholic Church, and then that puts the brakes on everything. He tells her what happened.”). However, David Harper himself testified what he told Lauren:

. . . So the nightmares had gotten worse, and I was getting resolved that I wanted to go and kill him and to make him -- to punish him for what he had done. And then also it just -- it kind of -- it was a Saturday evening. Lauren and I had gone out. We had had dinner, and somehow there was some conversation about getting baptized or something to that effect. I'm like, "There is no way I'm going to raise my kids Catholic."
And I just said it very adamantly, and basically that and the fact that I was -- had -- I was basically at that point planning on killing him.
I wanted to kind of get Lauren away from the situation, so I -- that next morning, I woke up and I broke up with her. And she was crying and went to work, she sent me texts and calling me. And I felt bad about it, and I felt that, you know, I at least owed her the truth to be honest with her.
So after work, we -- I agreed to -- said we can get some dinner and talk about it, went to Chipotle first. I was really welled up with emotion. I mean, it was -- because I was -- I decided I was going to tell her. It was the first person I ever told.
And I got back -- I said I wanted to go back to my apartment. We went back to my apartment, and I sat on my couch and I related to her what I just related to you.

(Doc. 62, PAGEID # 526-27).

         Similarly, Barbara Harper was asked by the Government about conversations she had with David Harper about Petitioner. Counsel for Petitioner objected twice during that testimony. (Doc. 60, PAGEID # 298-99, 299). After the second objection, the following discussion took place during a sidebar conference:

MR. WENKE: This gets back to our motion in limine.
THE COURT: Right.
MR. WENKE: And I know that she's not discussing hearsay. But, at the same time, at some point if David attempts to talk about this, it's still hearsay because just saying, telling ten different people about something doesn't make it more credible. It still has to fit in the exception, and it does --
THE COURT: You mean if she tries to say it. David can testify as to what he said.
MR. WENKE: Well, it's our position it would not unless it fits a recognized exception if --
THE COURT: Why couldn't David say what he said?
MR. WENKE: Because basically it's an attempt using a prior consistent statement to bolster current credibility -- pardon me, not consistent. It does not fit with any hearsay exception. It's our point that if he came in and said, "I told ten different people about this one way or the other, " unless I raised the issue it's not admissible as an exception.
THE COURT: We'll have to deal with that at that time, but how can a statement made by the declarant be hearsay?
MR. WENKE: It can be in the sense that, number one, if it doesn't fit an exception to the hearsay doctrine.
THE COURT: But it's not hearsay. But anyway -- MR. WENKE: That's all right. I understand.
THE COURT: What about the -- Christy was asking what was turned over. What's your objection to that?
MR. WENKE: We believe she's going to answer that it was a firearm. And, once again, it's not -- it's a part of our position that this is being used to try to bolster credibility, so it's our position it's not relevant.
THE COURT: The physical act of turning something over, I mean, it's going to be a blank in a jury's mind until somebody else testifies about it. And she can testify as to what he actually gave her.
MR. WENKE: I understand.
THE COURT: But not -- she can't say why or anything like that.

(Id., PAGEID # 299-300). Therefore, the trial transcript demonstrates that counsel for Petitioner did object and argue that certain statements by Lauren Cope and Barbara Harper were hearsay and irrelevant. However, the Court rejected these arguments.

         In a similar fashion, counsel for Petitioner objected several times during the direct examination of Joseph Harper by the Government:

Q. I want to jump ahead to 2009.
A. Okay.
Q. At that time, did you talk to David about what had happened in West Virginia?
A. I did, yeah.
Q. And could you describe David's demeanor when he told you ...

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