Appeal
from the United States District Court for the Southern
District of Florida D.C. Docket No. 1:13-cv-20863-JEM
Before
ROSENBAUM, GRANT and HULL, Circuit Judges.
HULL,
Circuit Judge.
Dieter
Riechmann, a Florida state prisoner, appeals the district
court's denial of his 28 U.S.C. § 2254 federal
habeas corpus petition challenging his convictions for
first-degree murder and possession of a firearm during the
commission of a felony. This Court granted a certificate of
appealability ("COA") on two issues: (1) whether
trial counsel provided ineffective assistance by failing to
investigate and present available evidence that
Riechmann's relationship with the victim was loving and
respectful and that he did not "live off" her; and
(2) whether the state's failure to disclose to the
defense the statements of Swiss and German witnesses
interviewed by German police violated Brady v.
Maryland, 373 U.S. 83, 83 S.Ct. 1194 (1963). After
review, and with the benefit of oral argument, we affirm.
I.
STATE TRIAL PROCEEDINGS
In
1987, a grand jury indicted Riechmann on charges of
premeditated first-degree murder of Kersten Kischnick and use
of a firearm during the commission of the murder. Riechmann
and Kischnick, "life companions" of 13 years, were
German citizens and residents who came to Florida on October
2, 1987, for a vacation. On October 25, 1987, Kischnick was
shot to death in Miami Beach while she sat in the passenger
seat of the couple's rental car.
At
trial, the state's theory of the case was that the
victim, Kischnick, was a prostitute who financially supported
Riechmann, who was her pimp. When Kischnick decided to quit
prostitution, Riechmann killed her to recover valuable life
insurance proceeds. As to the specific facts of the murder,
the state sought to prove that Riechmann stood outside the
passenger side of the rental car and fired a single shot
through the partially open passenger-side window, striking
Kischnick in the head and killing her. Riechmann insisted to
police and at trial that a random stranger shot Kischnick
when they stopped the car to ask for directions. He
consistently denied committing the crime.
A.
Pretrial Proceedings
Prior
to trial, Riechmann's defense counsel learned that the
state was in possession of 37 statements taken by the German
police in connection with its parallel investigation of
Riechmann. It appears from the record that defense counsel
was in possession of the list of names but not all of the
statements themselves. These were statements of persons in
Germany and Switzerland who knew Riechmann and Kischnick.
Riechmann's
defense counsel did have the statements of ten of those 37
witnesses-the statements of those who might testify at
trial-and he requested copies of the 27 remaining statements.
The state failed to provide the defense with these 27 other
statements despite the state trial court's on-the-record
ruling that Riechmann was to get "carte blanche
discovery . . . . No ifs, ands, or buts. No conditions.
Whatever the state has he gets."
When
the prosecutor refused to comply, Riechmann's defense
counsel moved the state trial court to conduct an in
camera inspection of the statements and turn the
relevant statements over to the defense. It does not appear
that the state trial court ever ruled on that motion, and
Riechmann's trial counsel did not renew it.
Despite
learning about the existence of several Swiss and German
persons who might have had relevant information about the
nature of Riechmann and Kischnick's relationship, defense
counsel spoke to no German witnesses prior to trial, nor did
he send an investigator to Germany. Riechmann also provided
his defense counsel with a handwritten list of persons in
Germany to depose or contact, but defense counsel did not
contact anyone on the list.
B.
Riechmann and Kischnick's Relationship
At
trial, the government sought to establish the nature of
Riechmann and Kischnick's relationship primarily through
the testimony of four German witnesses, including
Kischnick's sister. These witnesses were culled from the
list of 37 German witnesses referenced above.
The
first of these witnesses was Peter Carsten Meyer-Reinach, who
met Riechmann and Kischnick in Hamburg in 1977. During the
time of his acquaintance with the couple, Meyer-Reinach knew
Kischnick to be a prostitute and Riechmann to be her pimp.
During that time, Kischnick earned between 1, 000 and 1, 500
German marks per day as a prostitute.[1]
At some
point, Riechmann and Kischnick moved from Hamburg to a German
town near the Swiss border, in part because "the work
for [Kischnick] . . . wasn't good anymore."
Meyer-Reinach saw Riechmann twice more following the move,
and during one of these interactions, Riechmann commented
that Kischnick "really didn't feel like working
anymore."
The
second German witness, Ernst Siegfried Steffen, was an
insurance agent in Hamburg who sold various life insurance
policies to Riechmann and Kischnick. Steffen too had met
Riechmann in Hamburg in 1977, and was aware that Kischnick
worked as a prostitute under the name Yvonne. Riechmann had
also told Steffen that Riechmann worked as a pimp.
Steffen
confirmed Riechmann and Kischnick maintained a "high
standard of living" while in Hamburg, and he believed
Kischnick was making about 1, 000 German marks per day as a
prostitute. As for Riechmann, Steffen recalled helping him
obtain a luxury apartment by verifying a certificate of
earnings showing Riechmann made 3, 950 German marks per
month, though the certificate of earnings did not state the
origin of those earnings. Riechmann also told Steffen that he
had received training as an insurance agent. Like
Meyer-Reinach, Steffen was aware that Riechmann and Kischnick
had at some point moved to southern Germany near the Swiss
border, in part because "[b]usiness apparently
wasn't going too well in Hamburg."
The
third witness was Kischnick's younger sister, Regina, who
first met Riechmann when Kischnick brought him home in 1974.
Regina did not learn of her sister's occupation until
several years later. During the time that Riechmann and
Kischnick lived in Hamburg, Regina never knew Riechmann to
work at any particular job, though she recalled Kischnick
telling her that Riechmann "had business dealings with
Arabs"-specifically, "dealings in gold."
Kischnick seemed content, if not happy, in her life with
Riechmann in Hamburg, but she became noticeably unhappy upon
their move to southern Germany. On the occasions that Regina
visited her sister in southern Germany, it did not appear to
her that Riechmann was working. Regina learned that Kischnick
had gotten married to someone other than Riechmann and
obtained a Swiss passport. There were several times when
Regina would call the apartment in southern Germany and
Riechmann would answer and tell her that Kischnick "was
in Switzerland with a girlfriend." Regina often heard
Riechmann make derogatory comments about Kischnick's age
and figure.
On
cross-examination, Regina stated that she believed much of
the expensive jewelry and apartment furnishings Riechmann and
Kischnick owned had been paid for by Kischnick's
earnings. Regina conceded, however, that the couple's
earnings likely were supplemented in some way by Riechmann,
and that she had no way of definitively knowing the origin of
the money used to purchase particular gifts or furnishings.
The
final witness was a woman named Dina Mohler, who then worked
as a prostitute in Switzerland. Mohler first met Kischnick a
few years after Kischnick and Riechmann moved to southern
Germany. Kischnick had replied to an advertisement Mohler
placed in the newspaper seeking a "colleague" with
whom to share her apartment. By "colleague," Mohler
meant another prostitute who would pay rent to use the shared
space. Kischnick, who worked under the name Yvonne, was
supposed to pay Mohler 1, 000 Swiss francs per month to use
the apartment, but Kischnick was unable to make this payment
because she was physically ill and depressed. Specifically,
Kischnick was unable to provide services to her customers for
large stretches of time because she was suffering from
"gynecological problem[s]," which at times were so
severe that she doubled over in pain.
Approximately
three months after starting to work with Mohler, Kischnick
departed for the United States with Riechmann. Not once
during those three months with Mohler was Kischnick able to
make a full rental payment, and she confided in Mohler that
she was earning far less than she had previously.
On
cross-examination, Mohler admitted that she had never spent
any time with Riechmann and Kischnick together, and that she
had only spoken to him once briefly on the phone. She
acknowledged that Kischnick had always referred to Riechmann
as her boyfriend, not her pimp, and consistently denied that
she supported him financially, as he "had enough money
of his own." Despite the fact that the couple had a
"very difficult relationship" and "had a lot
of fights," Mohler acknowledged that the two "loved
each other." When asked specifically whether Riechmann
loved Kischnick, Mohler agreed he did, though "not in
the same way she loved him." Mohler never saw Riechmann
physically abuse Kischnick, nor had she seen any evidence
that Kischnick was abused. Just prior to departing for the
United States, Kischnick appeared to be in good health and
was looking forward to the trip.
However,
on redirect, Mohler stated that: (1) prostitutes often refer
to their pimps as boyfriends and never admit to supporting
them; (2) Kischnick stated "very often" than she
wanted to stop being a prostitute; (3) Riechmann was
verbally, if not physically, abusive; and (4) Kischnick would
avoid answering any time Mohler asked how Riechmann supported
himself.
After
the state rested, Riechmann testified on his own behalf and
painted a different picture of his relationship with
Kischnick. Riechmann acknowledged that Kischnick had at times
worked as a prostitute, but he categorically denied being her
pimp or having ever been a pimp at all. According to
Riechmann, he was able to support himself and his relatively
lavish lifestyle through commodities trading, particularly
oil. Through unspecified means, Riechmann was able to
purchase oil for less than the OPEC price and resell it in
Europe for a profit. Riechmann earned a commission of 10
cents per barrel of oil sold.
As for
Kischnick's occupation, Riechmann maintained she first
got into prostitution as a means of supporting herself while
he was serving a ten-month jail sentence for perjury.
Riechmann claimed Kischnick ended up in the clutches of
"a gang of pimps," and he subsequently "bought
her free" by paying the gang six months' worth of
her earnings. Kischnick later became involved with another
gang of pimps when the couple was briefly separated for six
months, and Riechmann again purchased her freedom for 50, 000
German marks.
During
his testimony, Riechmann reiterated his love for Kischnick
and recounted numerous times he had saved her life. The
defense also played for the jury a video that Riechmann had
taken the night that Kischnick was killed, which depicted the
two as being in an apparently loving relationship.
The
state trial court allowed the government to impeach Riechmann
with evidence of his prior German convictions. At the trial,
the jury heard about Riechmann's convictions for: (1)
grand theft of an automobile stolen in 1966; (2) involuntary
manslaughter and negligent bodily harm connected with a 1972
automobile accident; (3) forgery, which occurred in 1973; and
(4) solicitation of perjury, which occurred in 1974.
C.
The Murder
According
to Riechmann, he and Kischnick traveled to Miami in 1987 as a
vacation. The two had previously visited Miami for a week in
1986. While the ostensible purpose of the 1987 trip was
pleasure, Riechmann was also scoping out locations for a
designer clothing store he hoped to open in Miami. He and
Kischnick also took trips to a shooting range during the 1987
trip. Riechmann loved to shoot and collect guns, which he was
unable to do in Germany. Riechmann and Kischnick planned to
stay in Miami from October 2 through 31.
Upon
arriving in Miami from Germany in October of 1987, Riechmann
rented an automobile with his Diner's Club card, which
automatically insured both passengers in the event of
accidental death.[2] In the event of an accidental death in the
vehicle-which included homicide-the deceased's legal heir
would receive 500, 000 German marks.[3] On the evening of October
25, 1987, following a dinner out, Riechmann drove around the
Miami area with Kischnick in the passenger seat of the rental
car. At some point that evening, Kischnick was shot.
When
questioned by police-both at the scene on the evening of
October 25 and during subsequent conversations-Riechmann
consistently claimed Kischnick had been shot by a random
stranger. Specifically, Riechmann told officers that he
stopped to ask for directions from a black man who asked if
they were tourists. Riechmann noticed that the man had
something in his hand. Then Riechmann heard an explosion. At
that point, Riechmann "hit the accelerator and took
off." Riechmann heard Kischnick "wheezing" and
realized she had been shot, at which point he rolled up the
window and reclined her seat. He eventually spotted a police
officer, whom he flagged down. Despite going on multiple
"drive arounds" with police in the days following
the murder, Riechmann was unable to identify specifically
where the shooting took place.
In his
trial testimony, Riechmann provided a more detailed account
of his version of events. On the evening of October 25, he
and Kischnick had dinner and drinks at Bayside in Miami. They
left the restaurant at 10:00 p.m., intending to stop at the
"Welcome to Miami Beach" sign to take pictures, but
they got lost. At that point, the couple stopped at an
unspecified location to ask for directions from a stranger.
Realizing they were close to their destination, Riechmann
unbuckled his seatbelt and reached behind his seat to
retrieve his video camera, apparently preparing to use it. He
placed the camera on Kischnick's lap while she searched
her purse for a few dollars to tip the stranger. Riechmann
then noticed the stranger had approached the car again and
"was holding something in his hand into the car."
Sensing danger and feeling threatened, Riechmann
instinctively "hit the gas pedal" and stretched out
his arm in a "protective manner." At the same time
Riechmann hit the accelerator, he heard an explosion and saw
Kischnick slump over in her seat. Riechmann then drove around
looking for help, eventually spotting a police car and
flagging it down.
D.
Forensic Evidence
At
trial, the state presented testimony from three expert
witnesses: a gunshot-residue expert, a firearms expert, and a
serologist. The defense also called its own gunshot-residue
expert to counter the state's expert.
When
questioning Riechmann at the scene, police swabbed
Riechmann's hands. The state's expert analyzed the
swabs and identified numerous particles typically found in
gunshot residue, the number and nature of which indicated
that Riechmann had recently fired a gun. The expert
specifically testified that he would not have expected to
find the same number and type of particles on Riechmann's
hands if Riechmann had merely sat in the driver's seat
while someone else fired a shot from outside the car. In
contrast, the defense's gunshot-residue expert testified
that the particles of gunshot residue found on
Riechmann's hand proved only that Riechmann was in the
vicinity of a gun when it was fired, not that he actually
fired a gun.
Upon
searching Riechmann's motel room, police found three
handguns and 40 Winchester silver-tipped, 110 grain,
.38-caliber bullets in a 50-shell box.[4] An expert
firearms examiner, who also examined bullet fragments removed
from Kischnick's head, testified that the bullets
recovered from the motel were the same type as the bullet
that killed Kischnick, although none of the specific weapons
found in the room were used to commit the murder. However,
the bullet that killed Kischnick could only have been fired
from one of the following gun models: a .38 Astra, a .38
Special Taurus revolver, or an FIE .38 Special Derringer. Two
of those models-the Taurus revolver and the FIE
Derringer-were among the three guns recovered from
Riechmann's hotel room.
Riechmann
claimed to have bought two of the guns on a prior trip to
Miami in 1986. During that trip, both Riechmann and the
victim took multiple trips to a shooting range, and then left
the guns with a local attorney they knew when they returned
to Germany. They retrieved the guns from the attorney by
October 9, 1987. Riechmann bought the third gun on the 1987
trip. Riechmann claimed he did so because Kischnick saw it in
a magazine and liked it. Riechmann also purchased the
ammunition on that trip for the two of them to use at the
shooting range.
The
state also presented testimony from a serologist concerning
the blood found in the car and on Riechmann's clothing.
The serologist testified that the "high-velocity blood
splatter" found on the driver-side door inside the car
could not have gotten there if the driver's seat was
occupied in a normal driving position when the shot was fired
from outside the passenger-side window. Moreover, upon
examining Riechmann's clothing, the serologist discovered
blood stains, as opposed to high-velocity splatter. Had
Riechmann been sitting in the driver's seat during the
shooting, his clothes would have shown evidence of blood
splatter, rather than blood stains, the serologist stated.
E.
Documentary Evidence
The
state also presented several pieces of documentary evidence
in support of its theory that Riechmann killed Kischnick to
recover insurance proceeds. In addition to establishing that
Riechmann was entitled to 500, 000 German marks as a result
of the insurance policy associated with the rental car, the
state presented evidence of five additional insurance
policies that were taken out on Kischnick's life between
approximately 1978 and 1985 and of which Riechmann was the
beneficiary.
Specifically,
Riechmann had taken out two life insurance policies on
Kischnick, each of which insured her life for 200, 000 German
marks, and one of which provided for double payment in the
event of accidental death, which included murder, so long as
the murderer was not the beneficiary. Riechmann was the
beneficiary of both policies. Riechmann purchased the
double-indemnity policy from Ernst Steffen in 1984. Steffen
had previously sold Riechmann an accident insurance policy,
but Riechmann wanted to cancel that policy and replace it
with two risk life insurance policies, one on himself and the
other on Kischnick. The risk policy on Kischnick (which was
for twice as much as the policy on Riechmann) insured her
only from 1984 to 1994, and Riechmann was only able to
collect on the policy in the event that Kischnick died within
that time frame.
Additionally,
in 1980, while Kischnick and Riechmann were separated,
Kischnick took out two whole-life policies on herself, which
she purchased from Ernst Steffen and which were valued at 29,
227 and 29, 437 German marks, respectively, at the time of
Kischnick's death. Both policies provided for double
indemnity in the event of Kischnick's accidental death
(which, again, included murder, assuming the murderer was not
the beneficiary). Kischnick's parents were the original
beneficiaries on both policies, but in 1983, the insurance
company received Change of Beneficiary forms designating
Riechmann as the new beneficiary on both policies.
Finally,
Riechmann, through his Diner's Club membership, applied
for an accidental death and disability policy, which provided
for a payout of 500, 000 German marks to Riechmann in the
event of Kischnick's death.[5] Following Kischnick's death,
Riechmann attempted to collect on at least four of these
insurance policies. All told, Riechmann stood to gain the
equivalent of over $961, 000 in the event of Kischnick's
accidental death. During his testimony, Riechmann claimed to
have been unaware that the total payout would be so high.
Riechmann claimed he was not aware that murder qualified as
an accidental death under the various policies, nor was he
aware of the automatic coverage associated with the rental
car.
The
state also submitted copies of Riechmann and Kischnick's
reciprocal wills, in which each was named as the other's
sole heir. Evidence showed that the wills were filed in a
German court in June of 1987. Riechmann claimed, during his
testimony, that it was Kischnick who wanted to file the
reciprocal wills. Riechmann agreed, as he wanted to ensure
that Kischnick, not his family, would inherit his estate.
F.
Riechmann's Cell Mate
While
incarcerated pending trial, Riechmann spent two months as a
cellmate to Walter Symkowski. The two would play chess and
discuss their lives. During the course of these
conversations, Riechmann repeated to Symkowski the same
version of events he told police and recounted at trial: that
he and Kischnick had gotten lost and asked a black man for
directions, who then shot Kischnick through the open window
of the car.
However,
Riechmann also told Symkowski that his girlfriend was a
"[h]igh class prostitut[e]" and that he had paid a
Swiss man to marry her so she could obtain a Swiss passport.
Riechmann said that he never had to work because his
"[g]irlfriends support him." Riechmann also
expressed happiness at the prospect of becoming a millionaire
...