United States v. Frank Fredman

390 F.3d 1153 UNITED STATES of America, Plaintiff-Appellee, v. Frank FREDMAN, Defendant-Appellant. No. 03-35808. United States Court of Appeals, Ninth Circuit. Argued and Submitted November 1, 2004. Filed December 10, 2004. Jane E. Ellis, Portland, OR, for the defendant-appellant. Jeffrey Kent, Assistant United States Attorney, Eugene, OR, for the plaintiff-appellee. Before FERGUSON, TROTT, and KLEINFELD, Circuit Judges. TROTT, Circuit Judge: 1 Frank Fredman appeals the district court's denial of his habeas corpus petition. Fredman argues that he was denied effective assistance of counsel because of his counsel's decision to admit in opening statement to some of Fredman's criminal wrongdoing. We conclude that the "confession and avoidance" tactic used by counsel does not constitute ineffective assistance of counsel. Because Fredman does not show that his counsel was constitutionally ineffective, we affirm the district court's denial of his habeas petition. BACKGROUND 2 In April of 1996, Fredman and Cynthia Herndon, Fredman's girlfriend at the time, traveled to Klammath Falls, Oregon. They stayed with co-defendants Angie and Wayne "Buck" Jenkins during the first few weeks of their…

Frank Fredman appeals the district court’s denial of his habeas corpus petition. Fredman argues that he was denied effective assistance of counsel because of his counsel’s decision to admit in opening statement to some of Fredman’s criminal wrongdoing. We conclude that the “confession and avoidance” tactic used by counsel does not constitute ineffective assistance of counsel. Because Fredman does not show that his counsel was constitutionally ineffective, we affirm the district court’s denial of his habeas petition.

BACKGROUND

. In April of 1996, Fredman and Cynthia Herndon, Fredman’s girlfriend at the time, traveled to Klammath, Falls, Oregon. They stayed with co-defendants Angie and Wayne “Buck” Jenkins during the first few weeks of their sojourn in Oregon. Between April and July of 1996, they spent . most of their time in Oregon but traveled also to other parts of the United States. At one point, Fredman took a short trip to Texas. Herndon testified that the purpose of this trip was to sell drugs. Fredman and Herndon later took a long road trip to New Jersey, stopping in Minneapolis to sell drugs to a man named Pat. While in New Jersey, they purchased a motor home from…

concurring:

I concur in the opinion written by Judge Trott.

I write only to ensure that defense counsels realize that a “confession and avoidance” tactic is not something courts ordinarily will approve.

It must be understood that defense counsel’s tactic here was reasonable only because no other defense was possible. As Judge Trott declares, defendant’s case was a “lost cause.”