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Riechmann v. Florida Department of Corrections

United States Court of Appeals, Eleventh Circuit

October 7, 2019

DIETER RIECHMANN, Petitioner-Appellant,

          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.


         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 ...

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