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Teitelbaum v. Turner

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

May 2, 2018

DANIEL TEITELBAUM, Petitioner,
v.
NEIL TURNER, WARDEN, Respondent.

          MICHAEL H. WATSON, JUDGE.

          REPORT AND RECOMMENDATION

          KIMBERLY A. JOLSON, UNITED STATES MAGISTRATE JUDGE

         Petitioner, a state prisoner, brings this petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. This matter is before the Court on the Petition (Doc. 1), Respondent's Return of Writ (Doc. 13), Petitioner's Reply (Doc. 15), and the exhibits of the parties. For the reasons that follow, it is RECOMMENDED that the petition be DENIED and that this action be DISMISSED.

         I. FACTS AND PROCEDURAL HISTORY

         A. Facts, Trial, and Conviction

         The Ohio Tenth District Court of Appeals summarized the facts and procedural history of the case as follows:

By indictment filed December 12, 2011, the state charged Teitelbaum with one count of aggravated burglary, in violation of R.C. 2911.11, a first-degree felony; two alternative counts of aggravated murder, in violation of R.C. 2903.01, unclassified felonies; and one count of tampering with evidence, in violation of R.C. 2921.12, a third-degree felony. Both aggravated murder charges carried death penalty specifications, and the aggravated burglary and aggravated murder charges all carried firearm specifications. All four charges in the indictment related to the shooting death of Paul Horn. Teitelbaum entered a plea of not guilty to all charges.

         A. Evidence at Trial

         At a jury trial commencing February 2014, Angela York, an officer with the Grove City Division of Police, testified that at 5:42 a.m. on March 11, 2011, she responded to a dispatch to 3574 Gateway Lakes Drive. Upon arrival, the door to the apartment was unlocked. When police pushed the door open further, they saw Horn's body just inside the door. By the time police were called to the scene, some of Horn's blood had already dried. There was also a salad scattered across the floor.

         Dr. Jan Gorniak, then the Franklin County Coroner, testified that Horn died as a result of multiple gunshot wounds to the head and torso. Dr. Gorniak opined that the stippling around the entrance point of the fatal gunshot wound near the right ear indicated the gun had been no more than 6 to 12 inches away when it was fired.

         Gary Wilgus of the Ohio Bureau of Criminal Identification and Investigation (“BCI”) testified that he processed the crime scene at Horn's apartment. Based on the pools of blood around Horn's body and other blood found in the apartment, Wilgus estimated the blood had been left approximately 24 to 36 hours prior to his arrival at the scene. The locations of various blood stains in the apartment suggested the bloodletting began on the sofa and progressed toward the apartment's front door.

         Wilgus testified he did not detect any sign of forced entry into Horn's apartment. Additionally, Wilgus did not see any indication that someone had searched or ransacked the apartment. Wilgus swabbed the inside and outside doorknobs of the apartment for touch DNA. Subsequent testing of the swabs by forensic scientist Emily Draper of the Miami Valley Regional Crime Laboratory revealed a mixture of DNA on the interior doorknob consistent with contributions from Horn, Teitelbaum, and Dennis Hopkins, Horn's roommate. The swab from the exterior doorknob contained a mixture of DNA consistent with Horn, Hopkins, and a third person. Based on the limited profile for the third person, Draper testified she could not rule out Teitelbaum as the third contributor.

         Hopkins, Horn's roommate at the time of his death, testified that he worked for Horn at the Platinum Players Club and a second poker club. Hopkins said that on the afternoon of March 10, 2011, Horn told him to go get the game started at the second club. Hopkins testified he stayed at the second club until around midnight and then went to the Platinum Players Club to do some work in the kitchen. Around 4:15 a.m. on March 11, 2011, Hopkins said he left the Platinum Players Club to go home. When he got to the apartment, the front door was unlocked, which Hopkins said was not unusual. Upon opening the front door, Hopkins saw Horn's body on the ground and could tell Horn had been shot. Hopkins said his initial thought was Horn could have committed suicide.

         Remembering he had two handguns in his duffel bag inside the apartment, Hopkins stepped around Horn's body, checked his bags to make sure the guns were still inside, and took the duffel bag to his car. Hopkins testified he was inside the apartment for two or three minutes and said he did not disturb the body or anything else inside the apartment, other than his duffel bag, while he was there. Hopkins then drove back to the Platinum Players Club, without calling police, and attempted to give his bag with the guns to Minh Nguyen, who was managing the club that night. Nguyen refused to take the bag from Hopkins and told Hopkins to go back to the apartment and call police. Hopkins testified he drove back to the apartment, called 911, but did not reenter the apartment. When police arrived on the scene, Hopkins told them about moving the guns and continued to cooperate with police. Hopkins denied killing Horn.

         Nguyen also testified, and he said he was at work at the Platinum Players Club on the evening of March 10, 2011. Nguyen testified that Horn came into the Platinum Players Club that evening and talked to Nguyen about his concerns regarding the deposition scheduled for the next day. Nguyen identified surveillance footage of the Platinum Players Club that showed Horn leaving the club at 7:46 p.m. Nguyen said he spoke to Horn on the phone a short time later, and phone records showed Horn made that phone call at 8:49 p.m.

         Additionally, Nguyen testified that Hopkins came to the Platinum Players Club sometime before midnight on March 10, 2011 and stayed until 3:00 or 4:00 a.m. on March 11, 2011. After Hopkins left, Nguyen said Hopkins then returned around 4:30 or 5:00 a.m. to tell him that Horn was dead. Nguyen testified Hopkins asked him to take possession of some weapons, but Nguyen told him no and instructed Hopkins to go back to the apartment and call police.

         A server at the Platinum Players Club, Kelsey Adkins, testified that she saw Horn at work on the evening of March 10, 2011. Adkins said she made Horn a salad and he left the Platinum Players Club with it at 7:46 p.m. Adkins further testified she saw Hopkins at the Platinum Players Club that evening, and he was still there when Adkins left work around 3:00 a.m.

         William Newman, an employee at Horn's second poker club, the Celebrities Social Club, testified he received a phone call from Horn on the evening of March 10, 2011. Phone records indicated the phone call occurred at 8:58 p.m. and lasted a little more than six minutes.

         Michael Anthony, an attorney who represented Horn in a commercial dispute against Teitelbaum (“the civil suit”), testified that Horn and Teitelbaum were partners in a poker business known as the Platinum Players Club. The documents from the civil suit showed Teitelbaum had sued Horn for breach of contract and breach of fiduciary duty. Teitelbaum alleged Horn had been stealing from the business. Pursuant to the partnership agreement for the Platinum Players Club, upon death of one of the partners, the survivor would have the option to buy out the decedent's interest or dissolve the business. As the civil suit progressed, the parties scheduled Horn's deposition for March 11, 2011. Anthony testified he met with Horn on March 10, 2011 to prepare for the deposition.

         Anthony further testified he was at his law office the next morning awaiting Horn's arrival when he received a phone call from the Grove City Division of Police informing him Horn had died. Anthony testified that police asked him not to disclose Horn's death. Though Teitelbaum's attorney in the civil suit called Anthony and contacted the assigned judge about possible sanctions for nonappearance, Anthony only indicated that Horn would not be appearing. Subsequently, Teitelbaum won a judgment giving him control of the Platinum Players Club due to Horn's death.

         Adrian Wills, a friend of Teitelbaum's, testified he works in construction and photography but makes extra money by buying and selling items people might need, like rare art and books. According to Wills' testimony, he and Teitelbaum had been old friends who lost touch but eventually reconnected through Facebook in July 2010. Once they reconnected, Wills and Teitelbaum began communicating through email, Facebook, and Skype. Wills testified that at some point prior to March 2011, Teitelbaum asked him during a Skype call whether Wills would be able to obtain a gun for him. Teitelbaum told him he needed the gun for self-defense, and the two discussed types of guns. Wills testified he told Teitelbaum he thought he would be able to help him and even visited a firearms shop in Santa Fe to investigate. Ultimately, Wills said he reported back to Teitelbaum that he could not help him get a gun because of the prohibition against mailing firearms across state lines.

         Wills testified that on March 12, 2011, the day after Horn's death, Wills was in a motorcycle accident and Teitelbaum came to visit him in Santa Fe while he was recovering. Wills testified that in his previous Skype conversations with Teitelbaum, he could see that Teitelbaum had a “mountain man” type of beard. (Tr. Vol. IX at 1737.)

         However, when Teitelbaum arrived in Santa Fe, Wills said Teitelbaum was clean shaven.

         Deborah Davis testified that she is Teitelbaum's ex-wife. In March 2011, both Davis and Teitelbaum lived in New Jersey. Davis testified that after their divorce, Teitelbaum bought a poker club but claimed it did not yield any income relevant to their ongoing child-support issues. Additionally, Davis said Teitelbaum claimed his inheritance from his mother was running out. Davis further testified that in the months leading up to March 2011, Teitelbaum's appearance had changed because he had started growing a beard a few months earlier. According to her testimony, Teitelbaum told Davis he liked the beard because people would not recognize him.

         Davis testified she knew about the civil suit involving the poker club. She recalled having to switch visitation weekends with Teitelbaum in March 2011 because Teitelbaum had to be in Ohio for a deposition. Rather than having his scheduled visitation with his son over the weekend, Davis said Teitelbaum took their son out to dinner on a Thursday evening in March 2011 and said he was driving to Ohio after the dinner. When Davis next saw Teitelbaum on the Tuesday after the deposition date, he was clean shaven. Davis said she asked Teitelbaum about the deposition and he told her “it went well. It went really well.” (Tr. Vol. X at 1915.) Once she learned the deposition never occurred and that Horn had been killed, Davis remembered thinking Teitelbaum's comment was inexplicable and shocking.

         Horn lived at the Gateway Lakes apartment complex in Grove City. Daryl Cox, who lives at the dead end of Thrailkill Road in Grove City, testified that Thrailkill Road is very close to the Gateway Lakes apartment complex. According to his testimony, when Cox returned home from work on the evening of March 10, 2011, it was already dark outside. Cox said he saw a black car parked in a drainage ditch behind some bushes across the street from his house. Cox testified he thought it was “odd” to see a vehicle parked in that location when there is a designated parking area at the end of the road, and the presence of the car in that location made him “a little bit uncomfortable.” (Tr. Vol. XII at 2381.) Cox checked the area around his house and around the car, but he did not see anyone in the vehicle at that time. When Cox left his house the next morning, the car was gone.

         Detective Richard Forney of the Grove City Division of Police testified that during his investigation, he learned Teitelbaum had obtained two different lock picking kits in January 2011. He also identified a calendar kept by Grove City resident Jimmy Neace containing a notation that Teitelbaum stayed at Neace's home on the evening of March 10, 2011.

         Daniel Sachs testified he is an employee of BrickHouse Security in New York City, a company that sells security and surveillance products. Sachs authenticated business records involving Teitelbaum, including a recorded phone call and an invoice. During the trial, the state played the recording of a phone call between Teitelbaum and BrickHouse Security from February 15, 2011. In the phone call, Teitelbaum inquires about obtaining a GPS tracking device called the “Spark Nano Real Time” device. Teitelbaum mentioned he lived in New Jersey, expressed an interest in a ten-day rental, and provided BrickHouse Security with his email address to facilitate a future rental.

         Sachs then authenticated an email from BrickHouse Security to Teitelbaum sent on February 24, 2011, confirming Teitelbaum's rental of the GPS device for a ten-day period. Including the company's grace period for mailing the device, the rental end date was March 12, 2011. The fee for the rental of the GPS device was $129.95, but BrickHouse Security also charged Teitelbaum an additional $100.00 when he failed to return the device and claimed he had lost it.

         Phillip Loesch testified that from 2009 to 2012 he was an employee of Tracking the World, a company that provides GPS devices and software support. Loesch explained that when BrickHouse Security would sell or rent a GPS tracking device, BrickHouse contracted with Tracking the World to store the data obtained by the GPS device.

         Detective Forney testified that he was able to obtain the GPS data from both Tracking the World and Brickhouse Security showing the tracking locations from the GPS device that Teitelbaum had rented. Based on the tracking locations from the GPS device, Forney said he then went to various locations along the tracking route to obtain surveillance footage. The surveillance footage he obtained showing a man who looked like Teitelbaum was consistent with the time stamp information contained in the GPS tracking data.

         Robert Moledor, a detective with the Columbus Division of Police and FBI Task Force Officer, testified that he examined the GPS location data and the cell phone tower location data available from Teitelbaum's and Horn's phones. Detective Moledor testified that on March 9, 2011 at 3:10 p.m., the GPS unit traveled west from Margate City, New Jersey, arriving in the Columbus area around 1:40 p.m. on March 10, 2011. Detective Moledor testified that the cell tower data showing when Teitelbaum made phone calls was consistent with the GPS data.

         Detective Moledor testified that the GPS unit was at Neace's residence on Clime Road at 6:15 p.m. on March 10, 2011. From there, the GPS unit traveled to the parking lot of the Gateway Lakes apartment complex at 6:30 p.m. Next, the GPS shows stops along various businesses on Stringtown Road. Detective Forney identified surveillance footage obtained from a White Castle restaurant on Stringtown Road. The surveillance footage showed a dark colored Toyota sedan pull into the White Castle parking lot, Teitelbaum exited the vehicle, went inside the White Castle, entered the restroom, then exited the restaurant and returned to his vehicle.

         At 8:05 p.m. on March 10, 2011, the GPS unit arrived at the dead end of Thrailkill Road in Grove City, and it remained in that location until 9:20 p.m. Detective Moledor testified he went to this location on Thrailkill Road and that he was able to walk from the Gateway Lakes apartment complex to the dead end location on Thrailkill Road. Teitelbaum's cell phone records showed he made no phone calls during the time frame of 6:15 p.m. to 9:20 p.m. on March 10, 2011. Detective Moledor testified that the cell tower data for Horn's phone showed that at the time of the last phone call from Horn's phone at 8:58 p.m. on March 10, 2011, Horn was not yet back to his apartment but was very close, about four to seven minutes away.

         Detective Moledor further testified that the GPS unit left the location at Thrailkill Road at 9:20 p.m. on March 10, 2011 and next traveled to the area of Waterford Tower condominiums in Columbus, stopping there for several minutes. The manager of the Waterford Tower, Mark Reader, testified regarding the surveillance system at the Waterford Tower. The surveillance footage from Waterford Tower on March 10, 2011 from the time frame of 9:38 p.m. to 10:10 p.m. showed a man walking from an area of parked cars to and from the direction of the nearby Main Street bridge in Columbus. The man had a beard and dark hair, and he was wearing blue jeans.

         Detective Moledor testified that after leaving the area of the Waterford Tower, the GPS unit traveled to a Walmart store around 11:00 p.m. Surveillance footage obtained from the Walmart on Georgesville Road in Columbus showed Teitelbaum at 10:57 p.m. on March 10, 2011 wearing a dark-colored jacket, jeans, and dark-colored shoes. The surveillance video showed Teitelbaum purchase a jacket, shoes, jeans, and a pair of gloves, and he paid cash for the items. Additional surveillance footage showed Teitelbaum exit the store, walk to his car, then reenter the Walmart to purchase screws, again paying in cash. When Teitelbaum left the store for the second time, the surveillance footage showed him walk to his car, bend down in front of his vehicle, bend down at the rear of his vehicle, and then discard a white bag in a trash can before returning to his vehicle and driving away. Detective Moledor testified that the GPS unit then travelled from the Walmart back to Neace's home, arriving there around 11:40 p.m.

         On the morning of March 11, 2011, the GPS unit left Neace's residence and traveled back to Margate City, New Jersey. Detective Forney also testified that a short time after arriving at Teitelbaum's address in Margate City, New Jersey, the GPS unit then sent pings from “a reef very close to [Teitelbaum's] residence out into the ocean.” (Tr. Vol. XIV at 2967.)

         Another old friend of Teitelbaum's, Colin Reedy, testified that he attended college with Teitelbaum but lost touch for several years after college. At the time of trial, Reedy was serving a four-year sentence in prison for having made a straw purchase of a gun for Teitelbaum in November 2010. Reedy testified pursuant to a cooperation agreement with the federal government and the state that he would provide information regarding Horn's murder.

         Eventually, Reedy and Teitelbaum reconnected and would communicate primarily through email. When they first began corresponding, Reedy lived in Seattle, Washington and Teitelbaum lived in New Jersey. At first, Reedy said he had only “sporadic” contact with Teitelbaum, with months sometimes passing between emails. (Tr. Vol. XI at 2139.) Starting around 2009, the two began communicating more regularly and would occasionally send things like books, audio books, and movies to each other.

         Reedy testified that the first time Teitelbaum mentioned his “business situation in Columbus” was October 2010. (Tr. Vol. XI at 2149.) Reedy said Teitelbaum told him that his partner was “swindling” him and had taken over $100, 000 from Teitelbaum. (Tr. Vol. XI at 2150.)

         When Teitelbaum began discussing the problems he was having with his business, Reedy and Teitelbaum would communicate using Skype video conferencing because Teitelbaum felt Skype was a “more secure way to communicate.” (Tr. Vol. XI at 2152.)

         Through their Skype conversations in October, November and December 2010, Reedy said Teitelbaum told him about the issues he was having with Horn, that Horn had locked Teitelbaum out of the Platinum Players Club, and that the lawsuit was dragging on slowly. Reedy testified that Teitelbaum mentioned the possibility of using a lock pick that he had obtained to try to get into either the poker club or Horn's apartment. As they had more conversations, Reedy said Teitelbaum went from wanting to get surveillance and information on Horn to wanting to “get[ ] rid of” Horn. (Tr. Vol. XI at 2159.)

         Teitelbaum told Reedy that the Platinum Players Club would revert to Teitelbaum if Horn were dead.

         Reedy testified that Teitelbaum told him he would sometimes follow Horn to his apartment or the club, and that Teitelbaum discussed the times of day when he knew Horn would be at his apartment. Additionally, Reedy said Teitelbaum showed him a map via Skype of Horn's apartment complex, pointing out Horn's apartment and pointing out a nearby road that Teitelbaum “thought was a good place to park a car and then walk * * * to the apartment complex.” (Tr. Vol. XI at 2163.) Reedy said Teitelbaum discussed whether he should wait either in a car or outside hallway of the apartment complex or whether he should use a lock pick and wait inside Horn's apartment.

         As the discussions progressed, Reedy said Teitelbaum asked him to help kill Horn. Reedy said Teitelbaum told him he had talked to someone in Santa Fe about helping him kill Horn but Teitelbaum decided “it wasn't going to be an option.” (Tr. Vol. XI at 2179.) Reedy testified he suggested to Teitelbaum a sum of $20, 000 upfront plus an additional $1, 000 per month for an unspecified period of time. Reedy said he ultimately said no to the idea of killing Horn for money.

         However, Reedy did help Teitelbaum obtain a gun. He testified that on November 17, 2010, he purchased a semi-automatic Kel-Tec p-11 9 mm handgun at a Seattle gun store and registered it to his name. After a mandatory waiting period, Reedy returned to the gun store to take possession of the gun on November 27, 2010. Reedy testified that a short time later, he sent the gun from a UPS office in Seattle to Teitelbaum in New Jersey. A security representative for UPS identified UPS records showing delivery of the package to Teitelbaum's address in Margate, City New Jersey on December 3, 2010. By check dated January 2, 2011, Teitelbaum paid Reedy $400 for the gun, ammunition, and the cost of shipping. In these Skype conversations, Reedy said Teitelbaum had a “full beard.” (Tr. Vol. XI at 2236.)

         Though Reedy testified that many of his conversations with Teitelbaum were via Skype, Reedy also identified printed emails he sent to Teitelbaum. In one email that Reedy sent in either October or November 2010, Reedy wrote that the gun should be either a .38 handgun or a 9 mm handgun, and he mentioned the need to factor in the mandatory waiting period before he could obtain the gun. Reedy also inquired in the email whether Teitelbaum still wanted Reedy to “take care of it” or whether Teitelbaum had decided to do it himself. (Tr. Vol. XI at 2222.) Reedy testified this was an indirect discussion regarding who should kill Horn.

         Reedy identified another email dated November 12, 2010 in which he wrote to Teitelbaum that he had a second option for a gun and indicated he did not think only $10, 000 upfront was enough money for Reedy to “do it.” (Tr. Vol. XI at 2228.) Reedy wrote that he would ask for $20, 000 upfront plus an additional $1, 000 per month, and he again suggested that Teitelbaum was “the best person to do it based on knowledge, timing and money available.” (Tr. Vol. XI at 2229.) Teitelbaum sent a reply email writing only “[l]et's Skype this morning.” (Tr. Vol. XI at 2232.) In a third email Reedy identified, Reedy wrote to Teitelbaum and referenced their “scheming” about “ending * * * a life.” (Tr. Vol. XI at 2234.)

         Reedy testified that in January 2011, he left the country to go on a backpacking trip around the world, and he did not return to the United States until October 2011. The stamps on his passport showed he was in Indonesia, Thailand and Laos in March and April 2011. He was still overseas in August 2011 when the Federal Bureau of Investigation (“FBI”) contacted him to discuss whether he had any information regarding Horn's murder. Reedy testified he contacted Teitelbaum via Skype to let Teitelbaum know that the FBI had contacted him. Reedy said Teitelbaum told him that the FBI searched his apartment and seized his computer and some other items. Reedy said Teitelbaum also indicated to him that the gun was in a river.

         In September 2011, Reedy said Teitelbaum came to visit him in Vietnam, and Teitelbaum no longer had a beard. Reedy said they discussed Horn's murder and that Teitelbaum again told him he threw the gun in a river. Reedy told Teitelbaum he thought he might need a lawyer, Reedy said Teitelbaum agreed to give him $1, 500 to pay an attorney. Reedy testified that he told Teitelbaum he intended to talk to the police and that Teitelbaum told him “just don't say anything.” (Tr. Vol. XI at 2285.)

         Reedy testified that on November 28, 2011, he met with police and FBI in Columbus, Ohio. During a break from his interviews, Reedy left the room and wrote in a text message that his attorney was negotiating with the prosecutors and police. Reedy said he intended to send that text message to his girlfriend but mistakenly sent it to Teitelbaum instead. When Reedy told his attorney of his mistake, his attorney and the law enforcement officers took a photograph of the text message and told Reedy to send another message to Teitelbaum saying “just kidding.” (Tr. Vol. XI at 2288.) Teitelbaum did not respond to these text messages. The FBI seized Teitelbaum's phone when it searched his residence on May 5, 2011, but Teitelbaum could still monitor text messages by other means.

         James Smith, a forensic scientist with BCI, testified that the bullets fired at Horn were all fired from the same gun, and the five casings found at Horn's apartment were all fired by the same gun. Smith testified the bullets were all 9 mm and were fired from a barrel with characteristics that are consistent with the gun Reedy purchased and sent to Teitelbaum. Additionally, Smith testified his testing excluded both Hopkins' 9 mm gun and another 9 mm weapon used by another Platinum Players Club employee as the weapon that could have fired the bullets.

         Special Agent Kristin Cadieux of the FBI testified she was involved in obtaining search warrants for Teitelbaum's residence in New Jersey and his 2006 Toyota Avalon. Among the items seized in the execution of the search warrants was Teitelbaum's personal journal.

         Davis, Teitelbaum's ex-wife, also testified she knew that Teitelbaum kept a journal in a spiral notebook, and she identified such a notebook that the FBI had seized from his home as containing Teitelbaum's handwriting.

         Special Agent Cadieux read various entries from Teitelbaum's journal. In an entry dated May 4, 2010, Teitelbaum wrote he had made big mistakes in his life, including “pick[ing] a horrible, horrible business partner.” (Tr. Vol. XII at 2602.) In an entry dated May 29, 2010, Teitelbaum wrote about Horn trying to “rob [him] blind, ” and further wrote “[o]ne of the worst aspects of the whole debacle has been the thought of [Horn] running around the club telling everyone how all this is my fault and basically parading round like he owns the club and I'm an idiot.” (Tr. Vol. XII at 2602.) Teitelbaum also expressed frustration in the journal entries with the slow pace of the litigation with Horn, writing on November 26, 2010 “[t]he American legal system is a joke and cannot be relied upon to deliver justice.” (Tr. Vol. XII at 2611.)

         In October of 2010, Teitelbaum wrote he could not “get Ohio out of [his] mind lately * * * it's getting bad.” (Tr. Vol. XII at 2605.) He then wrote of his need to “do something and soon.” (Tr. Vol. XII at 2606.) Teitelbaum also wrote in some entries about his need to contact Wills and Reedy, and he later wrote about having spoken to Wills.

         Though his entries never explicitly mentioned a plan to kill Horn, Teitelbaum described the dark clothing he would wear when he “do[es] it.” (Tr. Vol. XII at 2606.) He also expressed some doubts about whether he was “the man for the job, ” and wrote he “need[ed] more training.” (Tr. Vol. XII at 2614.) On January 25, 2011, he wrote he “really would benefit from borrowing a car, ” but wrote his brother would not lend him one. (Tr. Vol. XII at 2615.) On February 19, 2011, he wrote that “[t]here is something on [his] mind all the time, and [he does not] want to write about it, ” but he “need[s] to do this job.” (Tr. Vol. XII at 2616.)

         Special Agent Cadieux testified there were no journal entries on the date of Horn's death. However, on August 10, 2011, five months after Horn's death, Teitelbaum wrote as his last entry in the journal “I'm alive! Happy to be alive. Jacob is alive. Deb is alive. Joanne is alive. Nick Enright is alive. Paul Horn is dead.” (Tr. Vol. XII at 2619.) Teitelbaum further wrote in that last entry he was drinking coffee, had plans to see his son, plans with his girlfriend, and that “[s]ure beats being dead or in prison, ” stating he should turn his life story into a book. (Tr. Vol. XII at 2619.) He wrote his “depression seems totally lifted.” (Tr. Vol. XII at 2620.)

         Officer John Gagnon of the Columbus Division of Police testified that both the Columbus Police and the FBI searched the Scioto River in downtown Columbus in the area around the Main Street bridge. Officer Gagnon testified neither the Columbus Division of Police nor the FBI ever recovered a gun from the river, but he described that particular area of the river as a difficult and dangerous area to search. Officer Gagnon said that in the time frame of March 9 to 11, 2011, the river was moving at a “rapids” rate. (Tr. Vol. XII at 2437.)

         Jerry Eagan, a United States Customs and Border Protection Officer, testified that he worked the border post at the Lewiston-Queenston Bridge in the area of Buffalo and Niagara Falls, New York from 2010 to 2013. Eagan identified records showing Teitelbaum came back into the United States from Canada alone in his car on November 28, 2011. The records indicated a “Canadian refusal, ” meaning Teitelbaum had attempted to enter Canada but had been refused and sent back to the United States. (Tr. Vol. X at 1978.)

         A. Jury Instructions and Deliberations

         During jury instructions, the trial court paused in the middle of its instruction regarding alternate jurors and engaged in some discussion with counsel off the record. Following that discussion, the trial court stated:

I had a question about this next instruction, and counsel all agree it is appropriate * * *.
The alternates-when you retire to the jury room, the 12 regular jurors will select a foreperson. So the two alternates will not participate in that process. The alternates should listen to the deliberations but must not participate in the deliberations, unless, until, if ever, they are called upon to serve as a regular juror.
Alternate jurors were selected to serve in the event of any misfortune befalling a member of the panel. As yet that has fortunately not occurred. Nonetheless, your presence is still required while this jury is deliberating.

(Tr. Vol. XVII at 3462-63.) The jury then retired to deliberate and the alternate jurors went into the jury room with the regular jurors.

         Shortly after the jury began deliberating, the bailiff notified the trial court of two questions from the jury. The second question was from an individual juror and read “Can a juror be removed for stating he shouldn't have been picked and he has trouble and doesn't like considering circumstantial evidence?” (Tr. Vol. XVII at 3466.) Counsel for both parties agreed to the trial court's response of “The court has received a question from an individual juror. The court may not answer questions like this in the future. While an individual may ask a question, it must come from the entire panel.” (Tr. Vol. XVII at 3466-67.)

         Approximately one hour later, the trial court received another question from the jury. Thereafter, the following exchange occurred:

THE COURT: For the record court has received another question:
“Can [alternate juror No. 1] be accused”-I assume it means recused-“from the jury because its to [sic] hard for him to listen in without commenting or putting in his two sense.” As a way of background, I believe this question is the result of the last question from the jury where I indicated-please be seated-where I said to the jury the question has to come from the panel.
Again for the record since that time, [alternate juror No. 1] did approach my bailiff expressing his problem with sitting there not participating. Is that correct, Cheryl?
THE BAILIFF: That's correct.
THE COURT: She asked me what to do. I told him-I told her to go and simply tell him that the instructions were that he could not participate. I asked that she communicate that information. I asked Lynn to go with her so that there would be a witness to that.
And I believe that was the information you gave; is that correct?
THE BAILIFF: Yes.
THE COURT: And you were there, Lynn?
MS. HARDESTY: Uh-huh.
THE COURT: And he expressed some difficulty at that time?
THE BAILIFF: Yes.
THE COURT: So we're now back with that question. We do have a juror that's I think problematic. However, with the agreement of counsel, I will bring [alternate juror No. 1] back in and express to him the importance of being an alternate, how important an alternate is to making sure that we have a full jury, how he said he would follow the law, and see if we can't agree on to get him to participate by sitting there.

(Tr. Vol. XVII at 3468-70.) Neither party objected to the trial court's proposed plan to speak to the alternate juror.

         At that time, the trial court called the alternate juror, (“alternate juror No. 1”), into the courtroom. The trial court first confirmed that alternate juror No. 1 was the one who submitted the earlier question coming from an individual rather than the whole panel regarding difficulty considering circumstantial evidence. Alternate juror No. 1 stated he thought the alternates “would be away from the deliberation part, ” and “didn't realize that, you know, sitting there not being able to say anything would trigger my anxiety.” (Tr. Vol. XVII at 3473-74.) After some more discussion, alternate juror No. 1 agreed to return to the jury room and obey the instruction not to participate.

         The next morning, the jury resumed deliberations. The trial court then had the following discussion with counsel:

THE COURT: It's been brought to my attention-and I raised the issue about whether or not the alternates should be back with the jury. Both sides approached the bench at my request, and both sides agreed that the ...

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