Filed: Jan. 23, 2014
Latest Update: Mar. 02, 2020
Summary: PUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 12-7121 UNITED STATES OF AMERICA, Plaintiff - Appellee, v. ERIK DEHLINGER, Defendant - Appellant. Appeal from the United States District Court for the District of South Carolina, at Florence. Terry L. Wooten, Chief District Judge. (4:06-cr-00900-TLW-1; 4:11-cv-70007-TLW) Argued: October 30, 2013 Decided: January 23, 2014 Before MOTZ, GREGORY, and DAVIS, Circuit Judges. Affirmed by published opinion. Judge Motz wrote the opinion,
Summary: PUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 12-7121 UNITED STATES OF AMERICA, Plaintiff - Appellee, v. ERIK DEHLINGER, Defendant - Appellant. Appeal from the United States District Court for the District of South Carolina, at Florence. Terry L. Wooten, Chief District Judge. (4:06-cr-00900-TLW-1; 4:11-cv-70007-TLW) Argued: October 30, 2013 Decided: January 23, 2014 Before MOTZ, GREGORY, and DAVIS, Circuit Judges. Affirmed by published opinion. Judge Motz wrote the opinion, ..
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PUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 12-7121
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
ERIK DEHLINGER,
Defendant - Appellant.
Appeal from the United States District Court for the District of
South Carolina, at Florence. Terry L. Wooten, Chief District
Judge. (4:06-cr-00900-TLW-1; 4:11-cv-70007-TLW)
Argued: October 30, 2013 Decided: January 23, 2014
Before MOTZ, GREGORY, and DAVIS, Circuit Judges.
Affirmed by published opinion. Judge Motz wrote the opinion, in
which Judge Davis joined. Judge Gregory wrote a separate
opinion concurring in the judgment.
ARGUED: Michael Louis Minns, THE MINNS LAW FIRM, Houston, Texas,
for Appellant. Kevin C. Lombardi, UNITED STATES DEPARTMENT OF
JUSTICE, Washington, D.C., for Appellee. ON BRIEF: Ashley Blair
Arnett, THE MINNS LAW FIRM, Houston, Texas; Jack Bruce Swerling,
JACK SWERLING LAW OFFICE, Columbia, South Carolina, for
Appellant. William N. Nettles, United States Attorney, OFFICE
OF THE UNITED STATES ATTORNEY, Columbia, South Carolina; Kathryn
Keneally, Assistant Attorney General, Frank P. Cihlar, Gregory
Victor Davis, Tax Division, UNITED STATES DEPARTMENT OF JUSTICE,
Washington, D.C., for Appellee.
2
DIANA GRIBBON MOTZ, Circuit Judge:
A jury convicted Dr. Erik Dehlinger of three counts of
filing false income tax returns. He received a sentence of
forty-two months imprisonment and one year of supervised release
and was ordered to pay $363,207 in restitution and a fine of
$5,000. Dehlinger appealed his conviction and sentence, and we
affirmed. Dehlinger then moved for habeas relief, asserting
that his trial counsel had labored under a prejudicial conflict
of interest in violation of Dehlinger’s Sixth Amendment rights.
Following an extensive evidentiary hearing, in which Dehlinger,
his trial counsel, and other witnesses testified, the district
court, in a thorough and well-reasoned opinion, denied Dehlinger
habeas relief. The court did, however, grant Dehlinger a
certificate of appealability pursuant to 28 U.S.C. § 2253. For
the reasons below, we affirm the judgment of the district court.
I.
Dehlinger’s Sixth Amendment challenge rests on his trial
counsel’s relationships with three individuals -- Tara LaGrand,
Gary Kuzel, and Collis Redd -- who were involved in the same
fraudulent scheme that gave rise to his convictions. Dehlinger
maintains that these relationships produced conflicts of
interest that prevented his trial counsel from calling these
3
individuals as witnesses to provide exculpatory testimony at his
trial.
A.
Dehlinger’s convictions arose from his involvement with
Anderson’s Ark and Associates (“AAA”), which marketed programs
enabling users to avoid current income tax liability and
“recapture” taxes paid in the previous two years. Dehlinger
began using the AAA tax programs in 1999. He first became
involved with the AAA through George Benoit, an employee of an
AAA affiliate called Guardian Management, and Richard Marks, an
AAA “planner,” i.e., an AAA employee who prepared client tax
returns and other documents that formed the basis of the
fraudulent tax schemes. Benoit prepared Dehlinger’s 1998, 1999,
and 2000 tax returns using AAA’s tax schemes. Tara LaGrand,
another AAA planner, prepared Dehlinger’s 2001 and amended 2000
tax returns. Use of the AAA programs resulted in a substantial
benefit to Dehlinger. In the three years he used the programs,
he avoided $363,207 in tax liability and obtained annual refunds
on his income taxes despite earning, as an emergency room
doctor, between $250,000 and $300,000 per year.
In 2002, the Government began its investigation of
Dehlinger. The Government offered Dehlinger a plea agreement,
in which he would plead guilty to one felony and cooperate with
the Government. During plea negotiations, Robert Stientjes and
4
other lawyers represented Dehlinger. When Dehlinger rejected
the plea, the Government indicted him in August 2006. Then,
Dehlinger, relying on a recommendation from one of Stientjes’s
partners, retained Scott Engelhard as his trial counsel to work
along with Stientjes at trial.
Dehlinger retained Engelhard based largely on Engelhard’s
relative success as court-appointed counsel for AAA planner Tara
LaGrand in her 2004 trial in Seattle, Washington. 1 The jury
deadlocked over the charges against LaGrand in that trial.
Subsequently, LaGrand (still represented by Engelhard) accepted
a guilty plea and was sentenced to twenty-four months
imprisonment and one year of supervised release. In LaGrand’s
plea agreement, she admitted that she knowingly prepared false
loan statements and tax deductions. This directly contradicted
her trial testimony, in which she had claimed that she did not
know the AAA programs were illegal. LaGrand’s plea agreement
contained a waiver of the right to appeal. Thus, Engelhard’s
representation of LaGrand at her trial effectively ended with
her sentencing in September 2005.
One year after that representation ceased, and before
undertaking his representation of Dehlinger, Engelhard obtained
1
In 2002, Engelhard also engaged in preliminary
representation discussions with two other AAA planners -- Gary
Kuzel and Collis Redd -- but later advised both of them that he
would represent only LaGrand.
5
a conflict waiver from LaGrand. In that waiver, LaGrand
identified Engelhard as her “former attorney” and stated that
“[t]o the extent that there might be any apparent conflict of
interest, I do hereby waive that conflict of interest so that
Mr. Engelhard can represent Mr. Dehlinger at trial.”
Accordingly, when retained by Dehlinger in the autumn of 2006,
Engelhard no longer represented LaGrand, and LaGrand had waived
any continuing duties Engelhard might have owed her.
With Engelhard as his lead counsel, Dehlinger proceeded to
trial in 2007. On October 15, 2007, after a four-day trial, the
jury found Dehlinger guilty of tax fraud on his 1999, 2000, and
2001 tax returns.
A few weeks after Dehlinger’s conviction, Engelhard
contacted LaGrand to inform her that the lawyers for other AAA
clients had written him asking for her contact information.
Those lawyers ultimately subpoenaed LaGrand to testify before
the district court in Seattle, Washington in the prosecution of
other AAA clients. Engelhard was appointed to serve as
LaGrand’s counsel in this matter due to his familiarity with the
AAA prosecutions. The district court in Seattle docketed
Engelhard’s re-appointment as LaGrand’s counsel as of November
29, 2007 –- one and one half months following the conclusion of
Dehlinger’s trial. Engelhard filed a motion to quash the
subpoena of LaGrand on Fifth Amendment grounds. In March 2008,
6
Dehlinger fired Engelhard when he learned that Engelhard had
filed this motion on behalf of LaGrand.
B.
After his unsuccessful appeal of his convictions and
sentence, Engelhard moved for habeas relief pursuant to 28
U.S.C. § 2255. The district court held a two-day evidentiary
hearing on Dehlinger’s § 2255 motion. During that hearing, the
court considered substantial documentary evidence and heard the
testimony of several witnesses, including Dehlinger, Engelhard,
Stientjes, and LaGrand.
Dehlinger testified that his sole defense at trial was his
good faith reliance on the assurances of AAA planners that the
AAA tax plans were legal. He asserted that he wanted Engelhard
to call AAA planners LaGrand, Kuzel, and Redd to testify as to
these assurances, but that Engelhard repeatedly advised him that
their testimony would be harmful rather than helpful. Dehlinger
contended that Engelhard’s decision not to call LaGrand, Kuzel,
or Redd as witnesses was driven by a conflict of interest
arising from Engelhard’s prior representation of them.
Dehlinger also offered evidence that LaGrand had written a
novel based on Engelhard’s earlier representation of her, in
which she depicted “Mr. Scott” (the character modeled after
Engelhard) as a hero. LaGrand herself testified at the § 2255
hearing that she was “in awe of” Engelhard. In addition, she
7
stated that she believed Dehlinger’s tax returns were legal when
she prepared them for Dehlinger and that she told him that. But
LaGrand acknowledged that she had ultimately pled guilty to
fraud in connection with her preparation of AAA returns, invoked
her Fifth Amendment privilege and refused to testify at the
trial of another AAA defendant, and had not appeared voluntarily
at the § 2255 hearing. Although Dehlinger argued that Engelhard
represented LaGrand during Dehlinger’s trial, he provided no
evidence to support this contention. 2
Engelhard testified that he “felt pretty clear . . . before
[he] even started to represent Dr. Dehlinger” that calling AAA
planners as witnesses would not be the best way to present
Dehlinger’s defense. In their preliminary discussions,
Engelhard informed Dehlinger of this assessment. Nevertheless,
Engelhard explored the option of calling AAA planners. He
ultimately concluded that -- given their status as convicted
felons or affiliates of AAA, which a jury had found to be a
fraudulent scheme -- the risks inherent in their testimony
outweighed any benefits.
2
Instead, the evidence produced at the § 2255 hearing
established that Engelhard’s representation of LaGrand in her
criminal proceedings ended in September 2005, more than one year
before he joined Dehlinger’s defense team; Engelhard’s
appointment as LaGrand’s counsel to file the motion to quash the
subpoena in the separate proceeding occurred on November 29,
2007, several weeks after Dehlinger’s trial had concluded.
8
As to Redd and Kuzel, Engelhard testified that Dehlinger
said he had never interacted with them, and for this reason
Engelhard concluded that they were not qualified to testify on
Dehlinger’s behalf. As to LaGrand, Engelhard testified that he
believed she would make an especially poor witness for Dehlinger
because she had testified at her trial “that she was completely
innocent but then later entered a guilty plea” and so could be
impeached on cross-examination. Engelhard also thought
LaGrand’s testimony would not aid Dehlinger because, since she
lacked experience in corporate and offshore matters, “a good
prosecutor could make her look like someone that nobody should
believe as a planner in complicated matters like this.” Co-
counsel Stientjes agreed with this assessment when Engelhard
explained his reasoning to Stientjes and Dehlinger prior to
undertaking Dehlinger’s representation.
Engelhard also opted not to call as witnesses other AAA
planners with whom he had no past relationship. Engelhard
testified that he had considered including AAA affiliate Benoit
as a witness. He believed that Benoit would make a better
witness than LaGrand because the Government had not prosecuted
Benoit, who had prepared two of the three tax returns that
formed the basis of the charges against Dehlinger. However,
after meeting with Benoit, discussing the matter with co-counsel
Stientjes, and conferring with an attorney representing other
9
AAA clients, Engelhard concluded that the risks of Benoit’s
testimony outweighed the benefits. He reasoned, in an e-mail he
sent to Dehlinger weeks before his trial, that “[i]f Benoit
testified for us, all he could do is reiterate the points I can
make without him. If he testifies and does not appear credible,
then a jury might conclude that it was not reasonable for you to
rely upon him.” Engelhard also decided against calling AAA
planner Marks as a witness because, in addition to Marks’s
conviction, Engelhard was familiar with Marks from the 2004
Seattle trial and found him to be a difficult personality. In
contemporaneous e-mails, Engelhard explained all of these
considerations to Dehlinger.
Instead of relying on AAA planners, Engelhard determined
that the best defense strategy was to rely on three other
witnesses to establish Dehlinger’s defense: Scott Stringer,
Bruce Burner, and Carl Charlot. Stringer, an expert, could and
did opine that the structure of the AAA tax schemes was
legitimate. Engelhard believed that “because of [Stringer’s]
credentials and his lack of involvement with AAA programs, his
opinion about the legality of the AAA programs would carry more
weight with a jury than the testimony of an AAA Planner.”
Burner was a former co-worker of Dehlinger who also joined
AAA. Engelhard believed that he would be a strong witness
because “he relied upon the exact same information from AAA as
10
Dr. Dehlinger for his belief that the AAA program was legal” and
Burner’s “credibility was particularly strong because he had
testified as a Government witness/victim in the Seattle trial.”
Engelhard reasoned that “the Government would have no
explanation for how they could treat Dr. Burner as a victim and
yet treat Dr. Dehlinger as a criminal, and that the jury would
feel compelled to acquit Dr. Dehlinger in light of Dr. Burner’s
testimony.”
Engelhard further determined that Charlot, a prior
associate of an IRS agent on whose assurances Dehlinger had
assertedly relied in becoming involved with AAA, would also make
a strong witness. Charlot could tell “a very compelling story”
about how the agent “had conned [Charlot] into believing that
the AAA program was legal.” Engelhard noted that Charlot had
been a convincing witness at LaGrand’s trial in Seattle.
On May 16, 2012, the district court issued a thorough
opinion denying Dehlinger habeas relief. The court found that
Engelhard’s testimony was consistent with contemporaneous
documentation and both “persuasive and credible.” 3 In the
3
The court also made credibility determinations with regard
to the testimony of co-counsel Stientjes and Dehlinger’s expert
witness. Stientjes initially testified at the § 2255 hearing
that “up until the last minute, Dr. Dehlinger expected Tara
LaGrand . . . to testify for Dr. Dehlinger,” but he admitted on
cross-examination that he meant only that Dehlinger expected her
to be available to testify if needed. The district court
(Continued)
11
court’s view, Engelhard’s decision not to call LaGrand, Kuzel,
or Redd as witnesses at Dehlinger’s trial “was based on trial
strategy alone and not linked to any potential conflict of
interest.”
Thus, the court concluded that Engelhard’s “decision not to
call witnesses who would be subject to impeachment for their
prior crimes (LaGrand and Kuzel) or for their participation in a
criminal organization (Redd) was simply a reasonable strategic
decision which the record does not indicate that Dehlinger
opposed.” The district court found that these decisions were
“part of an overarching trial strategy, which [Engelhard]
thought would be most beneficial to [Dehlinger],” and that “the
record support[ed] the conclusion that Dehlinger and Stientjes
acquiesced in this trial strategy.” The court further found
that “this trial strategy was applied evenhandedly
to . . . other [AAA] witnesses [with whom Engelhard had no
history of representation] which were not called for similar
strategic reasons.”
Dehlinger noted a timely appeal.
refused to credit Stientjes’s testimony, which failed to
withstand cross-examination and which also conflicted with
Stientjes’s affidavits and contemporaneous e-mails. The court
also gave little weight to the testimony of Dehlinger’s expert
witness who relied uncritically upon the truth of Stientjes’s
contradicted statement to reach an opinion about the ultimate
legal issues before the court.
12
II.
On appeal, Dehlinger again contends that Engelhard provided
ineffective representation that prejudiced him in violation of
his Sixth Amendment rights. Sixth Amendment protections apply
to every aspect of a lawyer’s representation. Dehlinger’s
claim, however, rests entirely on one portion of Engelhard’s
representation. Dehlinger contends that, in preparation for and
during his trial, Engelhard labored under an active conflict of
interest because of Engelhard’s history with LaGrand, Kuzel, and
Redd. Dehlinger maintains that this conflict adversely affected
Engelhard’s performance because he should have, but did not,
call them as witnesses.
Usually, a defendant can establish a Sixth Amendment
ineffective assistance claim only by proof that (1) “counsel’s
performance was deficient” and (2) “the deficient performance
prejudiced the defense.” Strickland v. Washington, 466 U.S.
668, 687 (1984). 4 A lawyer’s “concurrent representation” of
multiple clients, however, raises a “high probability of
4
In assessing whether counsel’s performance was
constitutionally deficient, “[t]he purpose is simply to ensure
that criminal defendants receive a fair trial,” Strickland, 466
U.S. at 689, “not to enforce the Canons of Legal Ethics,”
Mickens, 535 U.S. at 176. Thus, although the rules of attorney
professional conduct may be relevant as a guide to assessing
reasonableness, “breach of an ethical standard does not
necessarily make out a denial of the Sixth Amendment guarantee
of the assistance of counsel.” Nix v. Whiteside,
475 U.S. 157,
165 (1986).
13
prejudice.” Mickens v. Taylor, 535 U.S. 162, 175 (2002).
Accordingly, the Supreme Court has held that in concurrent
representation cases, a defendant can establish a Sixth
Amendment violation by “showing . . . defective performance, but
not requiring in addition (as Strickland does in other
ineffectiveness-of-counsel cases), a showing of probable effect
upon the outcome of trial.”
Id. at 174.
Arguably at least, this case concerns not concurrent but
successive representation of assertedly conflicted clients. See
Moss v. United States, 323 F.3d 445, 456, n.15, 459 (6th Cir.
2003) (distinguishing between concurrent representation, which
is “the simultaneous representation of two or more co-defendants
by [a] single attorney” and “[s]uccessive representation,” which
occurs when a defendant’s counsel “has previously represented a
co-defendant or trial witness”). The Supreme Court has
specifically reserved the question of whether the second
requirement of Strickland -- namely proof of a prejudicial
effect on the outcome of trial -- applies to asserted conflicts
arising from successive representation. See
Mickens, 535 U.S.
at 175-76. We need not determine, however, whether Engelhard’s
representation was successive and, if so, whether Dehlinger had
to demonstrate that the asserted conflict had a probable
prejudicial effect on the outcome of his trial. This is so
because Dehlinger has failed to make the threshold showing that
14
the asserted conflict rendered Engelhard’s performance
constitutionally deficient.
In order to establish constitutionally deficient
performance on the basis of an alleged conflict of interest, a
defendant, like Dehlinger, who has raised no objection at trial,
must establish that (1) “an actual conflict of interest” (2)
“adversely affected his lawyer’s performance.” Cuyler v.
Sullivan, 446 U.S. 335, 348 (1980). An actual conflict, which
requires a defendant to show that his counsel “actively
represented conflicting interests,” is the “constitutional
predicate” for an ineffective assistance claim.
Id. at 350.
Because “a possible conflict inheres in almost every instance of
multiple representation,”
id. at 348, the mere “possibility of
conflict is insufficient to impugn a criminal conviction,”
id.
at 350.
But even when an “actual conflict” is shown, “an adverse
effect is not presumed.” United States v. Nicholson, 475 F.3d
241, 249 (4th Cir. 2007) (“Nicholson I”). Instead, the
defendant must separately prove that the conflict adversely
affected his counsel’s performance by satisfying the three-prong
test set forth in Mickens v. Taylor:
First, the [defendant] must identify a plausible
alternative defense strategy or tactic that his
defense counsel might have pursued. Second, the
[defendant] must show that the alternative strategy or
tactic was objectively reasonable under the facts of
15
the case known to the attorney at the time of the
attorney’s tactical decision. . . . Finally, the
[defendant] must establish that the defense counsel’s
failure to pursue that strategy or tactic was linked
to the actual conflict.
240 F.3d 348, 361 (4th Cir. 2001) (en banc) (citation omitted),
aff’d without consideration of this point
535 U.S. 162 (2002).
The requirements for establishing an actual conflict and an
adverse effect on the lawyer’s performance “are often
intertwined, making the factual analyses of them overlap.”
United States v. Tatum,
943 F.2d 370, 375 (4th Cir. 1991). The
defendant must make both showings to obtain relief.
Sullivan,
445 U.S. at 349-50.
“Conflicts claims present mixed questions of law and fact
that we review de novo.” Mickens, 240 F.3d at 360 (internal
quotation marks omitted). “When the [district] court [has]
conducted an evidentiary hearing prior to ruling, we review its
findings of fact for clear error.” United States v. Nicholson,
611 F.3d 191, 205 (4th Cir. 2010) (“Nicholson II”). “Because
much of the adverse effect inquiry is heavily fact dependent, we
believe appropriate deference should be given to the findings of
the district court.”
Mickens, 240 F.3d at 360. “When findings
are based on determinations regarding the credibility of
witnesses,” as they were in the case at hand, “we give even
greater deference to the trial court’s findings.” United States
16
v. Hall, 664 F.3d 456, 462 (4th Cir. 2012) (internal quotation
marks omitted).
With these principles in mind, we turn to the question of
whether the district court erred in finding Dehlinger did not
establish that a conflict of interest rendered Engelhard’s
representation constitutionally deficient.
III.
A.
The district court based its denial of Dehlinger’s request
for § 2255 relief on its determination that -- even assuming
arguendo that an actual conflict of interest existed --
Dehlinger failed to satisfy the third prong of Mickens. That
is, the district court focused on whether Engelhard’s decision
to call witnesses other than LaGrand, Kuzel, and Redd was
“linked” to the asserted conflict, or instead was the product of
a legitimate trial strategy. We too will frame our discussion
around this third prong.
Dehlinger, as the defendant, bears the burden of proving
the requisite “link.” Mickens, 240 F.3d at 361. To satisfy
this burden, he must show Engelhard’s decision was not
objectively reasonable. See Stephens v. Branker,
570 F.3d 198,
212 (4th Cir. 2009)(finding that because the defendant failed to
establish a link between an alleged conflict and counsel’s
17
failure to pursue a defense the defendant “fail[ed] to
demonstrate that the trial decisions made by his counsel were
anything other than tactical judgments”). “If a reasonable
attorney would have adopted the same trial strategy absent a
conflict, [a defendant] cannot show [his lawyer’s] performance
was adversely affected by that conflict.” Caban v. United
States, 281 F.3d 778, 786 (8th Cir. 2002).
B.
The district court carefully reviewed the evidence and made
critical credibility determinations. After doing so, the court
found that Engelhard’s decision not to call LaGrand, Kuzel, or
Redd as witnesses amounted to nothing more than a reasonable
strategic decision, which he made in good faith at the outset,
applied evenhandedly to all potential witnesses, and adhered to
consistently throughout trial. Ample evidence supports this
finding.
With regard to Kuzel and Redd, Dehlinger had told Engelhard
that he had no meaningful interaction with them. In fact, he
barely knew them and they had not prepared any of his tax
returns. Thus, it seems unlikely that either of them would have
been permitted to testify as to Dehlinger’s assertedly innocent
state of mind. Even assuming that they would have been
permitted to testify, Dehlinger has failed to demonstrate that
they could have provided testimony not elicited from the defense
18
witnesses who did testify on his behalf at trial. See Eisemann
v. Herbert, 401 F.3d 102, 108 (2d Cir. 2005) (finding no adverse
effect because nothing in the record “provide[d] the slightest
indication as to what [the client-witness] would have said if
called or even that he would have said anything at all”).
As to LaGrand, who is the primary focus of Dehlinger’s
challenge, the record offers substantial support for the
district court’s finding that Engelhard’s decision not to call
her was driven by strategic concerns rather than any conflict.
The testimony and affidavits from Engelhard, Stientjes, and
Dehlinger himself, as well as contemporaneous e-mail
communications, establish that Engelhard and co-counsel
Stientjes believed that the risks of LaGrand’s testimony
outweighed the benefits, and informed Dehlinger of this
strategy. For instance, Dehlinger e-mailed Engelhard and
Stientjes on September 20, 2007 (three weeks prior to trial) to
ask about the witness list. After inquiring about other
potential witnesses, Dehlinger asked Engelhard and Stientjes
whether they “still think that Mar[ks] and/or LaGrand would be
too risky.” (emphasis added). Stientjes responded to
Dehlinger’s e-mail informing him that “[Engelhard] and I have
talked about the benefits [and] burdens of each witness. . . .
I think we have a great defense with our core witnesses. I
think we only have risk in calling any more.”
19
This evidence thus belies Dehlinger’s claim that Engelhard
led him to believe up until the eve of trial that LaGrand would
be called as a witness. Instead, the evidence establishes just
the opposite. First, Engelhard told Dehlinger prior to
undertaking his representation that, in his expert opinion,
LaGrand’s testimony would not help Dehlinger, and Dehlinger
chose to retain Engelhard with this knowledge. 5 Then, Engelhard
and co-counsel adhered to this strategy and kept Dehlinger
apprised of it throughout trial preparations.
As the district court found, the strategic considerations
that led Engelhard to conclude that calling LaGrand would be
“too risky” were objectively reasonable. Not only was LaGrand a
convicted felon; she had also pled guilty to tax fraud involving
the very same fraudulent organization that provided the basis
5
Dehlinger acknowledged at the § 2255 hearing that prior to
agreeing to represent him, Engelhard stated that he did not
think it would be a good strategic decision to call LaGrand, and
“that if that’s the way [Dehlinger] wanted to go, [he] really
should go with some other lawyer.” Dehlinger argues that this
statement shows Engelhard placed LaGrand’s interests above
Dehlinger’s by threatening not to represent Dehlinger unless he
agreed not to call LaGrand as a witness. Even if the statement
could be construed as evidence of a conflict during
representation, as Dehlinger maintains, it could also be
construed as evidence that Engelhard simply provided his
prospective client (Dehlinger) with the frank professional
judgment that LaGrand would make a poor witness and that calling
her would not be the best strategy for presenting Dehlinger’s
defense. Given the deference we must give the district court’s
findings, we cannot hold that the district court erred in so
finding.
20
for the charges against Dehlinger. Moreover, LaGrand had a
history of conflicting statements under oath about this tax
fraud. This conflict made it impossible to predict what she
would say on the stand and rendered any testimony from her
vulnerable to blistering cross-examination. Furthermore,
because LaGrand played no part in Dehlinger’s decision to follow
the AAA tax “plan” and did not prepare most of the tax returns
that formed the basis for Dehlinger’s indictment, it is
difficult to see that anything helpful to Dehlinger would be
gained from her testimony that was not obtained from the more
reliable witnesses Engelhard used to establish Dehlinger’s
defense.
Even more than Kuzel and Redd, LaGrand was a witness with
very little upside and a substantial downside -- involvement in
the same tax fraud as Dehlinger and, in her case, initial denial
of her involvement and then admission of and imprisonment for
it. No adverse effect results from a trial lawyer’s decision
not to call witnesses whose testimony would be cumulative or
potentially damaging to a defendant’s case. See Winfield v.
Roper, 460 F.3d 1026, 1033-34 (8th Cir. 2006) (citing cases). 6
6
The evidence produced at the § 2255 hearing also strongly
suggests that LaGrand, even if called, would not have agreed to
testify at Dehlinger’s trial. At the time of that trial, she
was on supervised release and limitations had not run on charges
the Government waived as part of her plea bargain. At her own
(Continued)
21
Dehlinger’s contentions that LaGrand, Kuzel, or Redd would
have provided exculpatory testimony at his trial rest on nothing
more than conjecture. One can only speculate as to what they
would have said and what effect this testimony might have had on
the jury. Evaluation of the testimony of possible witnesses is
precisely the sort of strategic decision entrusted to the
professional judgment of trial counsel. The record provides
abundant evidence that, as the district court found, Engelhard’s
decision not to call LaGrand, Kuzel, Redd or any other AAA
planner was an objectively reasonable one, which was based on
Engelhard’s familiarity with the facts of the case and his
thorough investigation of the best options available to his
client.
IV.
The Sixth Amendment does not provide a basis for
disappointed clients to launch after-the-fact attacks on the
objectively reasonable strategic decisions of their trial
attorneys. The district court did not err in finding that
Dehlinger failed to establish that Engelhard's representation
trial, she had claimed total innocence; when pleading guilty,
she admitted to knowingly engaging in fraud. Any further
testimony exposed her to charges of perjury and breach of her
plea agreement.
22
was anything other than objectively reasonable. For the
foregoing reasons, the judgment of the district court is
AFFIRMED.
23
GREGORY, Circuit Judge, concurring in the judgment:
I concur in the judgment of the Court. While the evidence
demonstrates that Engelhard’s decisions bear some relationship
to the fact that he represented LaGrand, Dehlinger fails to
prove by a preponderance of the evidence that Engelhard based
his decisions on his loyalty to LaGrand. The absence of a
causal link between the conflict of interests and Engelhard’s
decisions is the basis for denying relief.
24
