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Blankenburg v. Miller

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

June 19, 2017

MARK BLANKENBURG, Petitioner,
v.
MICHELE MILLER, Warden, Belmont Correctional Institution, Respondent.

          Michael R. Barrett, District Judge

          INTERIM REPORT AND RECOMMENDATIONS

          Michael R. Merz, United States Magistrate Judge

         This habeas corpus case under 28 U.S.C. § 2254 is before the Court for decision on the merits.

         Upon review of the Petition (ECF No. 1), Magistrate Judge Litkovitz, to whom this case was initially referred, ordered the Warden to answer (ECF No. 2). In due course the Warden filed the state court record (“SCR, ” ECF No. 8) and a Return of Writ (ECF No. 16). Judge Litkovitz thereafter granted motions to expand the record and to file under seal (ECF Nos. 17, 18, 19). The reference was transferred to the undersigned to help balance the Magistrate Judge workload in the Western Division (ECF No. 20).

         Mr. Blankenburg pleads the following grounds for relief:

14: The State violated Due Process when it failed to provide sufficient notice of the sex-offenses in the indictment, bill of particulars, and at the trial. Specifically, the State charged multiple, single-act offenses within single counts-indicating that each count contained an undetermined and unspecifiable number of criminal acts and offenses within each count. Even more specifically, this insufficient-notice claim is directed to Counts 15-18 and Counts 37-41 from the indictment and judgment entry of conviction.
15: The State violated Double Jeopardy by convicting Blankenburg of multiple, single-act offenses within single counts. Specifically, the State failed to describe the acts and offenses that formed the basis for Blankenburg's convictions in the indictment, bill of particulars, and at trial regarding Counts 15-18 and 37-41. In this way, Blankenburg remains exposed to future prosecutions for acts and offenses he was already convicted of.
16: Blankenburg's trial was unconstitutionally tainted by the three variants of 6th Amendment juror impartiality: i) actual juror bias, ii) implied juror bias, and iii) deliberate juror concealment during voir dire. Specifically, Blankenburg elicited affidavit evidence that a juror in his case was biased against him. The juror was a pharmacist and filled prescriptions for Blankenburg, which the juror failed to disclose, and some offenses involved Blankenburg's abuse of prescription drug laws. The juror had a minor child that treated with Blankenburg, who was a pediatrician, which the juror likewise failed to disclose and where some offenses involved sex abuse of minor patients. Finally, the juror told the affiants she harbored an actual bias against Blankenburg and intended to convict him, which she also failed to disclose.

(Petition, ECF No. 1, PageID 2-3.)

         Procedural History

         Mr. Blankenburg was indicted by the Butler County grand jury on March 6, 2009, on fifty-four counts: four counts of corruption of a minor, eight counts of corruption another with drugs, nine counts of pandering sexually-oriented matter involving a minor, two counts of aggravated trafficking in drugs, six counts of trafficking in drugs, three counts of bribery, six counts of money laundering, six counts of gross sexual imposition, six counts of illegal use of a minor in a nudity-oriented material of performance, two counts of engaging in a pattern of corrupt activity, one count of compelling prostitution, one count of complicity to compelling prostitution, and one count of complicity to bribery. Blankenburg waived his right to trial by jury as to some counts, but all counts were tried at the same time. The jury found him guilty of four counts of corruption of a minor, six counts of gross sexual imposition, three counts of compelling or complicity of prostitution, and three counts of pandering sexually oriented matter involving a minor. The trial court found him guilty of four counts of drug trafficking, one count of money laundering and one count of aggravated drug trafficking. He was then sentenced to an aggregated sentence of twenty-one to twenty-seven years. On twelve counts that had been severed, he pleaded guilty to two and the rest were merged. The court sentenced him to twelve months on each count, to be served concurrently with the sentences already imposed.

         Blankenburg appealed and his convictions were affirmed. State v. Blankenburg, 197 Ohio App.3d 201 (12th Dist. 2012)(“Blankenburg I”), appellate jurisdiction declined, 132 Ohio St.3d 1514 (2012). While the appeal was pending, Blankenburg filed a petition for post-conviction relief under Ohio Revised Code § 2953.21. The trial court denied relief, but the Twelfth District reversed and remanded. State v. Blankenburg, 2012-Ohio-6175, 2012 Ohio App. LEXIS 5321 (12th Dist. Dec 28, 2012)(“Blankenburg II”). On appeal after remand, the Twelfth District affirmed denial of the petition. State v. Blankenburg, 2014-Ohio-4621, 2014 Ohio App. LEXIS 4519 (Oct 20, 2014)(“Blankenburg III”), appellate jurisdiction declined, 142 Ohio St.3d 1465 (2015). Blankenburg, with the assistance of counsel, then filed his Petition in this Court April 29, 2016.

         Analysis

         Ground One: Insufficient Notice and Double Jeopardy[1]

         In his First Ground for Relief, Blankenburg contends that the indictment, the bill of particulars, and the manner of eliciting evidence at trial deprived him of fair notice of the charges against which he was required to defend and violated his right to be free of double jeopardy.

         The nine counts of the indictment at issue in Ground One are Counts 15, 16, 17, 18, 37, 38, 39, 40, and 41 which read as follows:

         COUNT FIFTEEN (15) GROSS SEXUAL IMPOSITION

On or about May 1, 1990, through April 30, 1993, at Butler County, Ohio, as an ongoing and continuing course of criminal conduct, Mark E. Blankenburg M.D. did have sexual contact with another, not the spouse of the offender, cause another, not the spouse of the offender, to have sexual contact with the offender; or cause two or more other persons to have sexual contact when the other person, or one of the other persons, is less than thirteen years of age, whether or not the offender knows the age of that person, which constitutes the offense of GROSS SEXUAL IMPOSITION, a Third Degree Felony, in violation of R.C. §2907.05(A)(4), and against the peace and dignity of the State Of Ohio .

         COUNT SIXTEEN (16) CORRUPTION OF A MINOR

On or about May 1, 1994, through April 30, 1996, at Butler County, Ohio, as an ongoing and continuing course of criminal conduct, Mark E. Blankenburg M.D., being a person who is eighteen years of age or older, did engage in sexual conduct with another, who is not the spouse of the offender, when the offender knows the other person is thirteen years of age or older but less than sixteen years of age, or the offender is reckless in that regard, and the offender is four or more years older than the other person, which constitutes the offense of CORRUPTION OF A MINOR, a Third Degree Felony, in violation of RC. §2907.04(A), and against the peace and dignity of the State Of Ohio.

         COUNT SEVENTEEN (17) COMPELLING PROSTITUTION

On or about May 1, 1994, through June 30, 1996, at Butler County, Ohio, as an ongoing and continuing course of criminal conduct, Mark E. Blankenburg M.D. did knowingly induce, procure, solicit, or request a minor to engage in sexual activity for hire, whether or not the offender knows the age of the minor, which constitutes the offense of COMPELLING PROSTITUTION, a Third Degree Felony, in violation of R.C. §2907.21 (A)(2), and against the peace and dignity of the State Of Ohio.

         COUNT EIGHTEEN (18) COMPELLING PROSTITUTION

On or about July 1, 1996, through April 30, 1998, at Butler County, Ohio, as an ongoing and continuing course of criminal conduct, Mark E. Blankenburg M.D. did knowingly induce, procure, encourage, solicit, request, or otherwise facilitate a minor to engage in sexual activity for hire, whether or not the offender knows the age of the minor, which constitutes the offense of COMPELLING PROSTITUTION, a Third Degree Felony, in violation of R.C. §2907.21 (A)(2), and against the peace and dignity of the State Of Ohio.

         COUNT THIRTY SEVEN (37) GROSS SEXUAL IMPOSITION

On or about April 18, 1993, through April 17, 1994, at Butler County, Ohio, as an ongoing and continuing course of criminal conduct, Mark E. Blankenburg M.D. did have sexual contact with another, not the spouse of the offender; cause another, not the spouse of the offender, to have sexual contact with the offender; or cause two or more other persons to have sexual contact when the other person, or one of the other persons, is less than thirteen years of age, whether or not the offender knows the age of that person, which constitutes the offense of GROSS SEXUAL IMPOSITION, a Third Degree Felony, in violation of R.C. §2907.05(A)(4), and against the peace and dignity of the State Of Ohio.

         COUNT THIRTY EIGHT (38) GROSS SEXUAL IMPOSITION

On or about April 18, 1994, through April 17, 1995, at Butler County, Ohio, as an ongoing and continuing course of criminal conduct, Mark E. Blankenburg M.D. did have sexual contact with another, not the spouse of the offender; cause another, not the spouse of the offender, to have sexual contact with the offender; or cause two or more other persons to have sexual contact when the other person, or one of the other persons, is less than thirteen years of age, whether or not the offender knows the age of that person, which constitutes the offense of GROSS SEXUAL IMPOSITION, a Third Degree Felony, in violation of R.C. §2907.05(A)(4), and against the peace and dignity of the State Of Ohio.

         COUNT THIRTY NINE (39) GROSS SEXUAL IMPOSITION

On or about April 18, 1995, through June 30, 1996, at Butler County, Ohio, as an ongoing and continuing course of criminal conduct, Mark E. Blankenburg M.D. did have sexual contact with another, not the spouse of the offender; cause another, not the spouse of the offender, to have sexual contact with the offender; or cause two or more other persons to have sexual contact when the other person, or one of the other persons, is less than thirteen years of age, whether or not the offender knows the age of that person, which constitutes the offense of GROSS SEXUAL IMPOSITION, a Third Degree Felony, in violation of R.C. §2907.05(A)(4), and against the peace and dignity of the State Of Ohio.

         COUNT FORTY (40) GROSS SEXUAL IMPOSITION

On or about July 1, 1996, through April 17, 1997, at Butler County, Ohio, as an ongoing and continuing course of criminal conduct, Mark E. Blankenburg M.D. did have sexual contact with another, not the spouse of the offender; cause another, not the spouse of the offender, to have sexual contact with the offender; or cause two or more other persons to have sexual contact when the other person, or one of the other persons, is less than thirteen years of age, whether or not the offender knows the age of that person, which constitutes the offense of GROSS SEXUAL IMPOSITION, a Third Degree Felony, in violation of RC. §2907.05(A)(4), and against the peace and dignity of the State Of Ohio.

         COUNT FORTY ONE (41) GROSS SEXUAL IMPOSITION

On or about April 18, 1997, through April 17, 1998, at Butler County, Ohio, as an ongoing and continuing course of criminal conduct, Mark E. Blankenburg M.D. did have sexual contact with another, not the spouse of the offender; cause another, not the spouse of the offender, to have sexual contact with the offender; or cause two or more other persons to have sexual contact when the other person, or one of the other persons, is less than thirteen years of age, whether or not the offender knows the age of that person, which constitutes the offense of GROSS SEXUAL IMPOSITION, a Third Degree Felony, in violation of R.C. §2907.05(A)(4), and against the peace and dignity of the State Of Ohio.

(Indictment, SCR 8.) Blankenburg avers that two victims were involved in these counts of the indictment, M.K. for counts 15-18 and B.L.B. for counts 37-41.

         Blankenburg raised his First Ground for Relief as his first assignment of error on direct appeal and the Twelfth District decided it as follows:

[**P5] Assignment of Error No. 1:
[**P6] BLANKENBURG'S CONSTITUTIONAL RIGHTS WERE VIOLATED BY A DUPLICITOUS INDICTMENT AND BY DUPLICITOUS CHARGING.
[**P7] Under this assignment of error, Blankenburg argues that "[m]ultiple acts of sexual misconduct were conflated into single counts" and at trial, the state "introduced evidence of multiple acts of sexual misconduct to prove single counts. This constitutes duplicity, and violates Crim. R 8(A), the Sixth Amendment right to notice of the charge, the Fifth Amendment right to avoid double jeopardy, the Article I, §5 right to a unanimous jury in a criminal case, and the Article I, §10 right to have a grand jury determine a criminal charge."
[**P8] According to Black's Law Dictionary, in criminal procedure, "duplicity" takes the form of joining two or more offenses in the same count of an indictment; also termed double pleading." Id. (8 Ed. 2004) 541. "Duplicitous, " as applicable here, is defined as "alleging two or more matters in one plea." Id.; see United States v. Murray, 618 F.2d 892, 896 (2nd Cir.1980) (indictment is duplicitous if it joins two or more distinct crimes in a single count).
[**P9] Blankenburg asked the trial court to address his duplicity arguments on numerous counts of the indictment prior to trial. More than one hearing was devoted at least partially to a discussion of duplicity, specifically as it pertained to certain drug counts. The trial court denied Blankenburg's motion to dismiss the counts or to split individual counts into separate counts.
[**P10] Under this assignment of error, Blankenburg relies on the bill of particulars to identify the alleged victim of a specific count of the indictment he is challenging. Blankenburg asserts that the following counts involved duplicitous charging or a duplicitous indictment or both: Counts 37 through 41 (gross sexual imposition against victim B.B.); Count 15 (gross sexual imposition against victim M.K.); Count 16 (corruption of a minor, victim M.K.); Counts 17 and 18 (compelling prostitution, victim M.K.)
[**P11] For B.B., Count 37 alleges that Blankenburg committed the offense of gross sexual imposition as an on-going and continuing course of conduct during a one-year period from April 18, 1993, through April 17, 1994, when B.B. was eight years old, and each successive count (Counts 38 through 41) involves a one-year period for the following year, which reportedly corresponds to the year in which this particular victim, B.B., would have been 9, 10, between 10 and 11, and 12 years old, respectively.
[**P12] Blankenburg argues Counts 37 through 41 allege multiple acts for each GSI count, and it constituted duplicitous charging when B.B. said Blankenburg fondled B.B.'s genitals 30 to 40 times at Blankenburg's medical office beginning at age eight or nine.
[**P13] As to M.K., Count 15 of the indictment and bill of particulars alleged that Blankenburg committed gross sexual imposition by fondling M.K.'s genitals as an ongoing course of conduct from May 1, 1990, through April 30, 1993; committed the offense of corruption of a minor as an ongoing course of conduct for performing fellatio on M.K. when the victim was 14 to 15 years old for Count 16; and committed the offense of compelling prostitution as an ongoing course of conduct when he paid money to M.K. to induce or procure sexual activity (fellatio) with M.K. for hire from May 1, 1994, through June 30, 1996, for Count 17 and from July 1, 1996, through April 30, 1998, for Count 18.
[**P14] An indictment is sufficient if it: (1) contains the elements of the charged offense, (2) gives the defendant adequate notice of the charges, and (3) protects the defendant against double jeopardy. See Hamling v. United States, 418 U.S. 87, 117-118, 94 S.Ct. 2887, 41 L.Ed.2d 590 (1974).
[**P15] R.C. 2941.03(E) provides, in part, that an indictment is sufficient if it can be understood from the indictment "that the offense was committed at some time prior to the time of finding of the indictment." Each count of the indictment must contain, in substance, "a statement that the accused has committed some public offense therein specified." R.C. 2941.05.
[**P16] The applicable version of R.C. 2941.04 states, in part, that an indictment may charge two or more different offenses connected together in their commission, or different statements of the same offense, or two or more different offenses of the same class of crimes, under separate counts, and if two or more indictments are filed in such cases the court may order them to be consolidated.
[**P17] An indictment is valid even if it states the time imperfectly or omits the time where the time is not an essential element of the offense. R.C. 2941.08(B) and (C). Other defects in the indictment do not render it invalid where they "do not tend to prejudice the substantial rights of the defendant upon the merits." R.C. 2941.08(K).
[**P18] Crim.R. 8(A) provides that two or more offenses may be charged in the same indictment or complaint in a separate count for each offense if the offenses charged, whether felonies or misdemeanors or both, are of the same or similar character or are based on the same act or transaction, or are based on two or more acts or transactions connected together or constituting parts of a common scheme or plan, or are part of a course of criminal conduct.
[**P19] According to R.C. 2941.28, No indictment or information shall be quashed, set aside, or dismissed for any of the following defects:
(A) That there is a misjoinder of the parties accused;
(B) That there is a misjoinder of the offenses charged in the indictment or information, or duplicity therein;
(C) That any uncertainty exists therein.
If the court is of the opinion that either defect referred to in division (A) or (B) of this section exists in any indictment or information, it may sever such indictment or information into separate indictments or informations or into separate counts.
If the court is of the opinion that the defect referred to in division (C) of this section exists in the indictment or information, it may order the indictment or information amended to cure such defect, provided no change is made in the name or identity of the crime charged.
[**P20] We have thoroughly reviewed the record with reference to Blankenburg's specific arguments and found none of them well taken. First, we note this case involves a continuing course of conduct charged as separate offenses differentiated by certain time frames. As noted below, Ohio courts have permitted course of conduct prosecutions in cases involving multiple acts of sexual abuse perpetrated against child victims. The counts at issue here involve allegations ...

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