Rendelman v. USA - 2255
Filing
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MEMORANDUM AND ORDER denying 104 Motion to Vacate (2255); and denying as moot 113 Motion for Copy Work. Signed by Judge James K. Bredar on 1/9/13. (c/m 1/10/13 bmhs, Deputy Clerk)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MARYLAND
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SCOTT LEWIS RENDELMAN
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v.
CRIMINAL NO. JKB-07-331
CIVIL NO. JKB-12-859
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UNITED STATES OF AMERICA
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MEMORANDUM AND ORDER
Scott Lewis Rendelman pro se has filed a motion (ECF No. 104) under 28 U.S.C. § 2255
to vacate, set aside, or correct the sentence he received after being convicted in this Court of six
counts of mailing threatening communications in violation of 18 U.S.C. § 876(c). (Judgment,
Apr. 21, 2008, ECF No. 53.)1, 2 The Court has considered it, the Government’s response (ECF
No. 112), and the record. The motion will be denied.
I. Standard for Motion under 28 U.S.C. § 2255
Four grounds for relief are provided in § 2255:
1) The sentence was imposed in violation of the Constitution or United States law;
2) The court was without jurisdiction to impose the sentence;
3) The sentence was in excess of the maximum authorized by law; or
1
As originally filed, Rendelman’s motion also sought recusal of Judge Titus, the presiding judge at trial
and sentencing. However, the case was reassigned to the undersigned and the motion to recuse was accordingly
denied as moot. (ECF No. 106.)
2
Rendelman also filed a motion for a copy of the Government’s response. (ECF No. 113.) It appears that
this motion was mailed from prison the day following the electronic filing of the Government’s response, which
indicates service by mail on Rendelman at his prison address (ECF No. 112). Thus, the Court concludes
Rendelman’s motion crossed in the mail with the Government’s response. Unless advised otherwise, the Court
presumes that Rendelman received in due course the Government’s response. It is also noted that the docket does
not show the Court’s second order extending time for the Government to respond was mailed by the Clerk to
Rendelman. The Government was granted an extension to file its response by September 11, 2012. (ECF No. 110.)
The Government’s response was filed on September 10 and was, therefore, timely. Consequently, the motion for a
copy of the Government’s response will be denied as moot.
4) The sentence is otherwise subject to collateral attack.
The Supreme Court has said that, unless a claim alleges either a lack of jurisdiction or a
constitutional error, then the scope of collateral attack is far more limited. United States v.
Addonizio, 442 U.S. 178, 185 (1979), abrogated on other grounds by rule. Thus, an error of law
cannot be the basis for collateral attack unless the claimed error constituted “‘a fundamental
defect which inherently results in a complete miscarriage of justice.’” Id. at 185 (quoting Hill v.
United States, 368 U.S. 424, 428 (1962)). Likewise, errors of fact may only serve as the basis
for § 2255 relief “‘where the errors [are] of the most fundamental character, that is, such as
rendered the proceeding itself irregular and invalid.’” Id. at 186 (quoting United States v. Mayer,
235 U.S. 55, 69 (1914)).
II. Asserted Grounds for Relief
Movant has asserted ten grounds for relief.
The first four are based on allegedly
ineffective assistance of counsel at sentencing. Grounds Five through Ten rest upon allegedly
ineffective assistance of counsel on direct appeal. More specifically, Rendelman contends he
was denied effective assistance of counsel at sentencing for four reasons:
1. His counsel failed to argue for a downward departure under United States Sentencing
Guidelines (“U.S.S.G.”) § 5K2.13 (Motion 6);
2. His counsel failed to argue that his criminal history category overstated Rendelman’s
criminal history (Motion 37);
3. His counsel failed to argue for a downward departure based on the Government’s
wrongdoing (Motion 38); and
4. His counsel failed to argue for a downward departure based upon his vulnerability to
abuse in prison (Motion 46).
2
On appeal, Rendelman’s appellate counsel allegedly provided ineffective assistance for
the following reasons in Grounds Five through Ten:
5. Counsel failed to raise the issue of sufficiency of the evidence as to Count 7 (Motion 39),
charging Rendelman with mailing a written communication addressed to the U.S.
Marshal’s Service in Sacramento, California, that contained a threat to injure the
President and all White House employees while engaged in the performance of official
duties (ECF No. 1);
6. Counsel failed to raise the issue of whether the District Court’s four-level upward
departure for extreme conduct was improper since the conduct at issue was not done
towards any of the named victims in the case but instead was new conduct towards a new
victim, involving a new offense for which no finding of guilt had been made (Motion 40);
7. Counsel failed to raise the issue of the District Court’s exclusion from Rendelman’s
opening statement of psychological evaluations showing Rendelman was not dangerous,
when those evaluations were seen by two victims before receiving their threatening
letters (Motion 40);
8. Counsel failed to raise the issue of the District Court’s allowance into evidence, over
Rendelman’s objection, of letters written after the dates of letters charged in the
indictment (Motion 43);
9. Counsel failed to raise the District Court’s refusal of Rendelman’s tendered jury
instructions pertaining to the “reasonable person test” applicable to the recipients of his
threatening communications (Motion 44);
10.
Counsel failed to raise the issue of jury selection and juror impartiality based on
Rendelman’s challenges for cause and his unsuccessful requests that the District Court
ask his voir dire questions (Motion 44).
3
III. Analysis
Since all of Movant’s contentions hinge upon allegations of ineffective assistance of
counsel, it is useful to state the standard applied in such cases. To prevail on this type of claim,
Rendelman must show both that his attorney’s performance fell below an objective standard of
reasonableness and that Rendelman suffered actual prejudice. Strickland v. Washington, 466
U.S. 668, 687-88, 691-92 (1984). An objective standard of reasonableness is derived from
“prevailing professional norms,” id. at 688, and counsel’s performance presumptively falls
within the realm of reasonable professional assistance, id. at 690. Performance is judged, but in
a “highly deferential” manner, on the facts of the particular case. Id. at 689-90. Thus, a
defendant must show that counsel’s acts and omissions were, in light of all of the circumstances,
“outside the range of professionally competent assistance.”
Id. at 690.
To demonstrate
prejudice, a defendant must show “a reasonable probability that, but for counsel’s unprofessional
errors, the result of the proceeding would have been different. A reasonable probability is a
probability sufficient to undermine confidence in the outcome.” Id. at 694. A court may
evaluate either the “performance” prong or the “prejudice” prong first.
Id. at 697.
An
insufficient showing of either prong ends the inquiry. Id.
A. Sentencing
1.
Downward Departure under U.S.S.G. § 5K2.13
Rendelman represented himself at trial, with his former counsel functioning as standby
counsel. (Dec. 11, 2008, Trial Tr. 3-4, ECF No. 66.) Following Movant’s conviction, his
standby counsel once again assumed his role as attorney for Movant and represented Rendelman
at sentencing. (Sent. Tr. 2, ECF No. 60.) Rendelman has claimed that a psychologist’s opinion
to the effect that he suffered diminished capacity due to his diagnosis of rape trauma syndrome
(“RTS”) should have been brought to the sentencing judge’s attention as a basis for downward
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departure from the sentencing guidelines. (Motion 6.) Rendelman avers he was raped in prison
in 1986 and that he reacted by writing a threatening letter against an individual who had filed a
civil suit against Rendelman in 1984 and a criminal complaint for embezzlement in 1985,
thereby causing Rendelman financial problems and stress for him and his family and
precipitating his conviction for embezzlement. Rendelman was denied parole on his Maryland
state court sentence and apparently continued writing threatening letters. After completion of his
state sentence, he was transferred to federal custody, tried, and convicted of mailing threatening
letters, resulting in a five-year sentence beginning September 1988. Rendelman alleges he was
raped several more times while in federal prison and that the last rape occurred in November
1991.
Rendelman continued to send threatening letters to judges, prosecutors, and prison
officials, as well as to Secret Service officers, the President, the U.S. Attorney General, and
various state governors. He was also convicted in 1995 in California state court of mailing a
threatening letter to that state’s governor and received a three-year sentence.3
Rendelman understood that he would stop being convicted and sentenced for mailing
threatening letters if he stopped mailing threatening letters, as he wrote in the instant motion:
Getting released wasn’t all that complicated. All the Movant had to do was stop
writing the threatening letters and let his sentence run out. But to the Movant this
presented a problem. If the Movant stopped writing the letters and suddenly
showed conforming behavior it would appear to the casual observer that the
government’s correctional programming, which included the brutal rapes (and the
rapists never being brought to justice), achieved the government’s goal of
rehabilitating the Movant to a crime free life. This was something the Movant
3
According to the sentencing transcript, Rendelman was convicted in 1989 in this Court for mailing
threatening communications to a federal judge and was sentenced to 42 months of incarceration and three years of
supervised release. He was also convicted in the Western District of Tennessee in 1990 for mailing threatening
letters to various officials including the President and received a 33-month sentence concurrent to the 1989 sentence.
He received additional sentences for convictions in the Western District of Texas (in the early to mid-1990s) and the
Eastern District of California (in 2000) for mailing threatening letters. After completing those sentences, including
supervised release, Rendelman apparently mailed some letters that became the subject of a Maryland state
prosecution for extortion and, during the proceedings in that case, he wrote threatening letters to the state prosecutor,
a state court judge, and an attorney, as well as the President of the United States and White House employees.
Those letters then, in turn, became the basis for prosecution in the instant case. (ECF No. 60, pp. 9-11.) His
conviction in the extortion case was overturned on appeal.
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swore to himself that he would not allow. The Movant vowed that he would
never let the government and the government officials think that subjecting
inmates to homosexual rape is the right thing to do in order to get good results.
On the contrary, the Movant wanted the government officials to see nothing but
bad results from their immoral and illegal treatment in the hopes they would
realize such treatment is the wrong thing to do and hopefully do something to
change it. In short, the Movant felt he had to continue writing the letters for as
long as he remained incarcerated. He would stop writing the letters only after he
was released, to show the government officials that releasing him had been the
right thing to do all along to achieve the good result they were after. That would
be okay, but in practice it became clear to the Movant that what he wanted to do
was, in fact, self preclusive. In order to get out so he could stop writing the
letters, the Movant would first have to stop writing the letters while in prison. But
if he stopped writing the letters while in prison, he couldn’t show that he stopped
writing the letters upon his release because he would have already stopped writing
the letters in prison in that case. The Movant instead would have to keep writing
the letters until his release, but in that case as long as the Movant kept writing the
letters, he would continue to get new charges and he would never get released.
The Movant was therefore stuck in a loop: the letters kept him locked up, and his
incarceration required that he keep writing the letters. In short, the Movant
realized he would probably stay locked up the rest of his life unless there was
some miracle to release him.
Little did the Movant know that the “miracle” he needed had been there all
along, just waiting to happen. The Movant was suffering from Rape Trauma
Syndrome (“RTS”) which is a species of Post Traumatic Stress Disorder.
(Motion 9.)
Rendelman claims that his RTS condition leaves him in a diminished capacity state such
that he is unable to control his behavior even though he knows his behavior is wrongful. Thus,
he asserts he qualifies for the leniency of sentencing provided in U.S.S.G. § 5K2.13, and his
counsel at sentencing was ineffective for failing to argue that point.
Section 5K2.13 provides as follows:
Diminished Capacity (Policy Statement)
A downward departure may be warranted if (1) the defendant committed the
offense while suffering from a significantly reduced mental capacity; and (2) the
significantly reduced mental capacity contributed substantially to the commission
of the offense. Similarly, if a departure is warranted under this policy state, the
extent of the departure should reflect the extent to which the reduced mental
capacity contributed to the commission of the offense.
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However, the court may not depart below the applicable guideline range if (1) the
significantly reduced mental capacity was caused by the voluntary use of drugs or
other intoxicants; (2) the facts and circumstances of the defendant’s offense
indicate a need to protect the public because the offense involved actual violence
or a serious threat of violence; (3) the defendant’s criminal history indicates a
need to incarcerate the defendant to protect the public; or (4) the defendant has
been convicted of an offense under chapter 71, 109A, 110, or 117, of title 18,
United States Code.
In the Application Note following § 5K2.13, the following comment is made:
For purposes of this policy statement—
“Significantly reduced mental capacity” means the defendant, although convicted,
has a significantly impaired ability to (A) understand the wrongfulness of the
behavior comprising the offense or to exercise the power of reason; or (B) control
behavior that the defendant knows is wrongful.
By its terms, Section 5K2.13 excludes from consideration for lenity an offense involving
a serious threat of violence, and Rendelman’s offense involved a serious threat of violence.
Counsel’s election not to argue for downward departure under § 5K2.13 was a reasonable
tactical decision. Because Rendelman did not qualify for this downward departure, he suffered
no prejudice when his counsel did not argue in favor of it. His first ground for relief is without
merit.
2.
Overstatement of Criminal History
Rendelman contends that Judge Titus should have, as had the judge in the 2001
California conviction, concluded that all of his threatening letters over the years constituted a
single course of conduct, thereby allowing for a three-level reduction in his criminal history
category from Category VI to Category III. Movant says that the sentencing guidelines have
changed since 2001, so that under the current guidelines, a reduction in criminal history category
based on this kind of argument would only be downward one level, not three as in 2001.
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Rendelman’s criminal history category was calculated in the presentence report to be at
the highest level, a Category VI, and Judge Titus noted at sentencing that he qualified as a career
criminal. (Sent. Tr. 9, ECF No. 60.) The parties offered no disagreement about the criminal
history category. Judge Titus then reviewed Movant’s criminal history and observed, “[T]he
criminal history here is a sad and extensive one that dates back to his original conviction in the
Circuit Court for Montgomery County in the mid-eighties . . . .” Judge Titus noted Rendelman’s
numerous convictions for mailing threatening letters in the years leading up to his 2008
conviction for the same conduct.
It was a reasonable tactical decision by counsel not to argue that Movant’s threatening
communications over roughly twenty years were a single course of continuing conduct since the
communications were sent from various locations at various times to various recipients. Counsel
could reasonably decide this line of argument would not be fruitful since there were apparently
sufficient predicate offenses to qualify movant for career-offender status. See also United States
v. Spring, No. 03-4902, 108 F. App’x 116, 122-23 (4th Cir. 2004) (unpublished) (per curiam)
(downward departure for overstatement of criminal history improper where inconsistent with
structure and theory of career offender guideline, which specifically includes threatened use of
physical force in defining term “crime of violence”). This second argument is without merit.
3.
Government’s Wrongdoing
Movant asserts the Government intentionally placed him “in rape situations”;
consequently, the Government caused his RTS and “provok[ed] Movant with wrongful, if not
illegal, incarceration.”
Thus, the Government caused Rendelman to commit his offenses.
(Motion 38.) Rendelman has stated that the last incident of prison rape by inmates occurred in
1991, a time too attenuated from the 2008 conviction to make that and even earlier incidents a
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causative factor for his criminal conduct in the instant case. Counsel made a reasonable strategic
choice not to argue for a downward departure on this basis. This argument is without merit.
4.
Vulnerability to Abuse in Prison
Movant alleges he was raped in prison five times and beaten by cellmates twice. Thus,
he argues, he should have been considered by Judge Titus as vulnerable to abuse in prison,
justifying a downward departure, and that his counsel was ineffective for not arguing this. In
2008 when Rendelman was sentenced, U.S.S.G. § 5H1.4 provided in pertinent part, “Physical
condition or appearance, including physique, is not ordinarily relevant in determining whether a
departure may be warranted. However, an extraordinary physical impairment may be a reason to
depart downward . . . .”
In 2010, § 5H1.4 was revised to read, “Physical condition or
appearance, including physique, may be relevant in determining whether a departure is
warranted, if the condition or appearance, individually or in combination with other offender
characteristics, is present to an unusual degree and distinguishes the case from the typical cases
covered by the guidelines. An extraordinary physical impairment may be a reason to depart
downward . . . .” In Spring, the Fourth Circuit affirmed the district court’s downward departure
on the basis that Spring would be extremely vulnerable to abuse in prison, taking into account
the defendant’s height (5΄6˝), weight (90 pounds), and immature appearance. 108 F. App’x at
124-25.
In reviewing the sentencing transcript, the Court finds no evidence that “distinguishes
th[is] case from the typical cases covered by the guidelines,” if one were to apply the more
lenient 2010 guidelines. Taking his allegations at his word, Rendelman has been subjected to
unacceptable prison abuse, but it is not clear that he is extremely vulnerable to such abuse.
Although both Rendelman and his attorney made lengthy addresses during the sentencing
proceeding, and although Rendelman included the fact of his abuse in his allocution, neither he
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nor counsel asked for a downward departure on this basis, dwelling instead on their requests for
probation instead of incarceration. Rendelman does not say that he asked his lawyer to make the
argument he now presses. That Rendelman’s counsel did not make this argument is not proof
that his assistance fell outside of prevailing professional norms. This ground for relief is without
merit.
B. Appeal
1.
Sufficiency of the Evidence as to Count 7
Rendelman next claims that his appellate counsel failed to raise the sufficiency of the
evidence as to Count 7 on appeal. (Motion 39.) This issue was in fact raised on appeal and
addressed by the Fourth Circuit. On direct appeal, Rendelman’s challenge was to the sufficiency
of the evidence to support the jury’s affirmative answer to a special interrogatory, i.e., “the jury’s
finding that the threatening communication ‘was addressed to the President and all White House
employees while those officers or employees were engaged in the performance of official
duties,’” within the meaning of 18 U.S.C. § 876(c). United States v. Rendelman, 641 F.3d 36, 48
(4th Cir. 2011). The special interrogatory as submitted to the jury read, “Do you find that the
president and all White House employees were, at the time of the charged offense, federal
officers or employees engaged in the performance of their official duties?” (Dec. 14, 2008, Trial
Tr. 73, ECF No. 68.) Although Rendelman’s appellate argument was focused on the meaning of
the words “addressed to,” and Rendelman now seeks to focus on the words “while [they] were
engaged in . . . official duties,” the Fourth Circuit’s opinion nevertheless implicitly evaluated the
sufficiency of the evidence in all respects as to Count 7:
In the light most favorable to the prosecution, Rendelman addressed and mailed
the 2006 Letter to the Marshals Service in California, and threatened to kill the
President and White House employees. The threat to injure in the 2006 Letter
was, as the jury found, addressed to (i.e., directed to) the President and White
House employees while engaged in the performance of official duties.
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641 F.3d at 49 n.14. His argument now has no merit.
2.
Four-level Upward Departure for Extreme Conduct
Before the sentencing proceeding, Judge Titus issued a memorandum to counsel advising
them he
was contemplating a possible departure or variance based upon, among other
factors, the apparent authorship by the defendant of a letter to Judge Motz of this
court dated January 8, 2008, after the date of [Rendelman’s] conviction, which
[Judge Titus] attached to the memo, the existence of aggravating circumstances
under Section 5K2.0(a)(1)(A), disruption of a governmental function under
Section 5K2.7 and, finally, extreme conduct under sentencing guideline 5K2.8.
(Sent. Tr. 3, ECF No. 60.)
Movant did not dispute that he authored the letter to Judge Motz. (Id. 4-5.) But he now
argues the four-level upward departure, which Judge Titus did impose, was improper because
Judge Motz was not one of the victims in his case and Rendelman had not been convicted
regarding that letter. (Motion 40.) However, the letter to Judge Motz was only one of four bases
considered by Judge Titus in deciding on the upward departure, and he later said that his focus as
to an upward departure or a variance was on extreme conduct under § 5K2.8. (Sent. Tr. 11.)
The “extreme conduct” to which Judge Titus was referring was that for which Rendelman was
convicted; the letter to Judge Motz was not the deciding factor, although Judge Titus took it into
account. (Sent. Tr. 50.) Further, Judge Titus emphasized that, if he had erred in the application
of the upward departure, he would find that the range of sentence under the guidelines was
inadequate and that he “would adopt a variance sentence because of the need to more accurately
emulate the [18 U.S.C. §] 3553 factors.” (Sent. Tr. 26.) Thus, Rendelman cannot establish
prejudice since he would have received the same sentence regardless of the upward departure.
This contention is without merit.
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3.
Exclusion from Opening Statement of Mention of Psychological Evaluations
Representing himself at trial, Rendelman made his opening statement to the jury. During
his statement, the following transpired:
In December of 2001 I was facing sentencing for yet another indictment.
The evidence will show I was supposed to get another five years, but the judge in
that case, for reasons which I think will be obvious, decided that he should let me
out. I had been locked up for 15 years. There were psychological evaluations that
were before him saying -MS. BELF: Objection.
MR. RENDELMAN: -- I was not dangerous.
MS. BELF: May we approach?
THE COURT: Yes, you may.
(At the bar of the Court.)
MS. BELF: It’s not going to be in evidence his mental state.
THE COURT: I can’t hear you.
MS. BELF: His mental state is not going to be in evidence whatsoever,
and interjecting that into this trial, we believe, does nothing but confuse the jury.
He has not given any notice of, nor does he intend to raise, any insanity defense.
THE COURT: Do you intend to call any psychiatric testimony?
MR. RENDELMAN: I don’t intend to call any psychiatric testimony. I
myself was going to introduce the reports to show what the recipients saw or
knew at the time they received the letters.
THE COURT: I don’t know what report you’re talking about.
MR. RENDELMAN: Psychological evaluations that were seen by Judge
Dugan, by Carol Crawford –
THE COURT: At this time I can’t make a ruling on those issues. A
circumstance like this is not appropriate for your opening statement. Move on to
another subject, and we will see whether this can be admitted or not. It sounds
doubtful to me, and you can’t fill up your opening statement with information that
is not appropriate. I’ll have you continue with your opening statement, and we’ll
deal with this in the evidentiary -- when we get into the evidentiary phase.
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MR. RENDELMAN: Okay.
(Dec. 11, 2008, Trial Tr. 59-60, ECF No. 77.)
Although Movant says that Judge Titus eliminated the evaluations completely from the
trial (Motion 41), the trial transcript contradicts that statement. He only deferred ruling on
admissibility subject to any later effort by Rendelman to introduce the reports. Rendelman does
not indicate he later offered the reports for admission into evidence. Thus, it cannot be said that
Judge Titus excluded them from trial. Appellate counsel reasonably forewent this argument.
The seventh ground for relief is without merit.
4.
Admission of Post-indictment Letters
Movant next contends that his appellate counsel rendered ineffective assistance because
he failed to argue that the trial court committed reversible error by admitting into evidence, over
his objection, letters written after the dates of the letters charged in the indictment. (Motion 43.)
The Court presumes the letters in question were authored by Rendelman and were of the same
threatening nature as the ones in the case. He has not offered a citation to the trial transcript to
assist in the Court’s analysis of this contention, but from what he has stated in his motion, it
seems likely that these letters could have been admitted under Rule 404(b), Federal Rules of
Evidence, to show intent, identity, absence of mistake, etc. The language of Rule 404(b) is not
limited to similar evidence in existence before indictment; the Rule may be equally employed to
admit similar evidence coming into existence after indictment. Appellate counsel could have
reasonably decided not to argue this on appeal because of its lack of merit.
5.
Tendered and Refused Jury Instructions
Movant argues he received ineffective assistance of appellate counsel because he did not
raise the issue of the trial court’s refusal of Rendelman’s tendered jury instructions pertaining to
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the “reasonable person test” applicable to the recipients of his threatened communications.
(Motion 44.) Rendelman submitted the following proposed additional jury instruction:
Jury Instruction No. 41
(Context of Threat)
To determine whether or not a reasonable person would understand the
threat as a serious expression of intent to inflict injury, you should consider the
context in which the threat was made.
As used here, the word “context” is not limited to the language used
within the 4 corners of the letter, but rather calls for you to put yourself in the
place of the recipient and consider the threat in light of all facts known to the
recipient at the time of the threat. You may consider, for example, what the
recipient knew about the Defendant, his history, his reasons for making the threat,
and any other letters received from the Defendant.
Clarification to Jury Instruction No. 32. See also Roy v. U.S.
(ECF No. 31, p. 1.)
Rendelman had submitted this and other proposed additional instructions pro se after his
motion to dismiss his counsel and proceed pro se was granted at his motions hearing. (ECF
No. 25; docket entries 12/3/07.) Previous to that, his counsel had agreed to a joint submission of
jury instructions with the Government, in which Proposed Jury Instruction Number 32 read as
follows:
JURY INSTRUCTION No. 32
(Counts Two through Seven – First Element – Threat)
The first element the government must establish beyond a reasonable
doubt is that the defendant threatened to kidnap or to injure the named victims as
charged in the indictment.
A threat is a serious statement expressing an intention to inflict injury (or
kidnap) at once or in the future, as distinguished from idle or careless talk,
exaggeration, or something said in a joking manner. A statement is a threat if it
was made under such circumstances that a reasonable person hearing or reading
the statement would understand it as a serious expression of intent to inflict injury
(or a reasonable person making the statement would foresee that the recipient
would understand it as a serious expression of intent to inflict injury).
To determine whether or not the defendant made a threat, you should
consider the circumstances under which the statement was made, including its
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context with respect to surrounding conversation, the language the defendant
used, and the reaction of those who heard or read the statement.
It is not necessary that the government prove that the defendant intended
to carry out the threat or that he had the present ability to carry out the threat. A
threat [m]ay be conditional upon the defendant’s ability to carry it out.
Sand, Modern Federal Jury Instructions, 31-13
(ECF No. 24.)
Prior to the charge conference, Judge Titus had provided the parties with his proposed
instructions including Number 32, which was left unchanged, save for correction of a
typographical error. (ECF No. 38.) At the charge conference, Judge Titus had extensive
dialogue with both Movant and the prosecutor about Number 32, but Rendelman never asked for
the specific language he had included in his earlier filing. The conversation at the charge
conference was directed to the prosecutor’s anticipation that Rendelman would argue to the jury
that his communication could not be considered a threat because it was a protest of his allegedly
wrongful incarceration. Consequently, she requested language to the effect that the statute
prohibiting the mailing of threatening communications did not include a “protest exception.”
After extensive discussion back and forth, everyone agreed that, with the exception of some
editorial changes to delete unnecessary language, the instruction would be fine without any
additional language. (Dec. 13, 2008, Trial Tr. 22-37, ECF No. 99.)4 Thus, Rendelman waived
4
As given, the trial judge’s charge to the jury on the “threat” element was as follows:
The first element, as I mentioned, is that the defendant threatened to kidnap or to injure the named
victims as charged in the indictment. A threat is a serious statement expressing an intent to inflict
injury at once or in the future, as distinguished from idle or careless talk, exaggeration, or
something said in a joking manner.
A statement is a threat if it was made under such circumstances that a reasonable person
hearing or reading the statement would understand it as a serious expression of intent to inflict
injury.
To determine whether or not the defendant made a threat, you should consider the
circumstances under which the statement was made, including its context with respect to
surrounding conversation, the language the defendant used, and the reaction of those who heard or
read the statement. It is not necessary that the government prove that the defendant intended to
carry out the threat, or that he had the present ability to carry out the threat.
(Dec. 13, 2008, Trial Tr. 24-25, ECF No. 98.)
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any appellate objection to the omission of his instruction. His counsel on direct appeal could
reasonably conclude such an argument would not succeed.
6.
Voir Dire
Rendelman’s last argument is that his appellate counsel was ineffective for failing to
challenge the jury selection process—specifically, the challenges for cause by Rendelman and
some requested voir dire questions regarding his offensive language and inflammatory views, as
expressed in his letters, about religion, homosexuality, government, and government employees.
Movant challenged for cause Venire Number 289, a sister of a convicted murderer (Dec. 11,
2008, Trial Tr. 50, ECF No. 92); Venire Number 294, a busy accountant (id. 56); Venire
Number 2, an elementary Spanish teacher scheduled to present a school program the day after
voir dire (id. 79); Venire Number 51, an employee of the International Monetary Fund who was
aware that the IMF had received letters with terrorist threats (id. 100-04); Venire Number 122, a
man with several medical issues (id. 135-40); and Venire Number 143, a retired government
engineer who lost several colleagues in the September 11, 2001, terrorist attack on the Pentagon
(id. 154-58).
Out of those six individuals, only one, Venire Number 143, was picked for the jury panel.
(Dec. 11, 2008, Trial Tr. 32, ECF No. 66.) (Numbers 294, 2, and 122 were excused for hardship
reasons. (Dec. 11, 2008, Trial Tr. 167-70, ECF No. 92.)) However, Number 143 was the
thirteenth person picked for the jury panel and would have been the first alternate juror, if the
jurors were seated in the order in which the courtroom deputy called their numbers. No alternate
jurors wound up serving on the jury panel that deliberated and reached a verdict. Thus, it is
reasonable to conclude that this person had no effect on the verdict. Even if he had been a
member of the jury that determined Movant’s guilt, the trial judge questioned him at voir dire as
to whether he could be fair and impartial if chosen as a juror in the case, and he responded
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affirmatively, indicating he felt duty bound as both a military officer and a federal employee to
defend the Constitution, and he believed he could be impartial. (Dec. 11, 2008, Trial Tr. 156-57,
ECF No. 92.) It was not an abuse of discretion for the trial judge to deny Rendelman’s challenge
for cause to this juror, and appellate counsel may have reasonably decided it was not an issue
worth pursuing on direct appeal.
As for the requested voir dire questions, the Court concludes the voir dire as given
appropriately covered all requested bases. Rendelman’s first requested voir dire question was
directed to his pro se status and asked whether jurors would not be impartial because he was
representing himself. (ECF No. 30.) At the beginning of voir dire, Judge Titus instructed those
present that a defendant has a right to be represented by an attorney and the right to waive the
right of attorney representation and to represent himself. (Dec. 11, 2008, Trial Tr. 14, ECF
No. 92.) He further instructed them:
The defendant in this case has chosen to represent himself, and he has, however,
had a standby counsel appointed for him. You should not infer anything adverse
to the defendant in this case as a result of his decision to represent himself. He
should be treated like any other litigant before this court.
(Id.) Later, the judge asked the following question: “The defendant in this case is representing
himself, as I previously advised you. Does any person here have any difficulty in following an
instruction from me that you should infer nothing adverse to the defendant as a result of his
decision to represent himself?” (Id. 41.) Requested voir dire question number 1 was adequately
addressed in voir dire.
The second requested voir dire question sought opinions from potential jurors about
Rendelman’s appearance. (ECF No. 30.) At an earlier proceeding, Rendelman had appeared
with “very long hair and a beard,” but at voir dire, Judge Titus noted that Rendelman “has a nice
haircut and has been shaved”; thus, this second question was unnecessary. (Dec. 11, 2008, Trial
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Tr. 27, ECF No. 66.) Movant did not disagree with the judge’s assessment. No error occurred
because the second question was not asked.
The third through ninth requested voir dire questions focused on material expected to be
introduced at the trial that could be regarded as “anti-American and anti-government,” offensive
to homosexuals, “anti-religious and blasphemous,” “bloody, gorey [sic], and extremely offensive
to the dignity of the human body, including graphic descriptions of dismemberment and
mutilation of dead bodies,” “graphically sexual, including perverted sex acts and sex acts with
dead bodies,” “gratuitous foul language, ‘four letter words,’ and extremely rude and offensive
remarks, many of which are sexual in nature,” and “extremely derogatory towards law
enforcement officers, correctional officers, police, the President, and other public officials.”
(ECF No. 30.) Judge Titus said all of those questions would be adequately covered in his
instruction number 24, probably meaning voir dire question number 24. (Dec. 11, 2008, Trial
Tr. 27, ECF No. 66.) During voir dire, the judge posed the following question:
Some of the mailed letters about which you will hear in this case may
contain harsh or graphic language and include some sexual content in references
to acts of violence and terrorist acts against the government. Knowing that, do
any of you have concerns about your ability to judge the evidence fairly and
impartially?
(Dec. 11, 2008, Trial Tr. 40, ECF No. 92.) As Judge Titus noted, his voir dire question, as posed
to the venire members, gave them enough information for them to decide whether they could be
fair jurors. (Dec. 11, 2008, Trial Tr. 27-28, ECF No. 66.) No error occurred when the judge did
not pose the specific questions requested by Rendelman on this point.
Movant’s tenth and eleventh requested voir dire questions were designed to find out if
potential jurors or someone close to them had ever received a threatening communication. (ECF
No. 30.) This was covered in voir dire when Judge Titus asked, “Have you, any member of your
family or any of your close friends ever been the victim of a crime, including the receipt of
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threatening communications, including letters and phone calls?” (Dec. 11, 2008, Trial Tr. 43,
ECF No. 92.) No error occurred in this respect.
Movant’s last requested voir dire question was focused on the support of terrorism and
terrorist acts. (ECF No. 30.) This was adequately covered by the voir dire question about the
language and content of the mailed letters (id. 40), which was specifically modified to
incorporate the mention of “terrorist acts against the government” (Dec. 11, 2008, Trial Tr. 2831, ECF No. 66.)
The trial judge addressed all pertinent bases in voir dire, and appellate counsel may have
reasonably decided that raising any issue about voir dire on direct appeal would be unproductive.
IV. Conclusion
Movant has not satisfied the “performance and prejudice” inquiry under Strickland v.
Washington for any of his assignments of error. His motion pursuant to 28 U.S.C. § 2255 (ECF
No. 104) is hereby DENIED. The motion for a copy of the Government’s response (ECF
No. 113) is DENIED AS MOOT.
DATED this 9th day of January, 2013.
BY THE COURT:
/s/
James K. Bredar
United States District Judge
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