United States v. Karen Sypher , 684 F.3d 622 ( 2012 )

RECOMMENDED FOR FULL-TEXT PUBLICATION
Pursuant to Sixth Circuit Rule 206
File Name: 12a0207p.06
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
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Plaintiff-Appellee, -
UNITED STATES OF AMERICA,
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Nos. 11-5233/5411
v.
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Defendant-Appellant. -
KAREN CUNAGIN SYPHER,
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Appeals from the United States District Court
for the Western District of Kentucky at Louisville.
No. 3:09-cr-85-1—Charles R. Simpson III, District Judge.
Argued: May 31, 2012
Decided and Filed: July 5, 2012
Before: MARTIN and DAUGHTREY, Circuit Judges; MALONEY, District Judge.*
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COUNSEL
ARGUED: David Nolan, Alexandria, Virginia, for Appellant. Candace G. Hill,
ASSISTANT UNITED STATES ATTORNEY, Louisville, Kentucky, for Appellee.
ON BRIEF: David Nolan, Alexandria, Virginia, for Appellant. Candace G. Hill,
ASSISTANT UNITED STATES ATTORNEY, Louisville, Kentucky, for Appellee.
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OPINION
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BOYCE F. MARTIN, JR., Circuit Judge. Karen Cunagin Sypher appeals her
jury conviction. The relatively uncomplicated issues in this case have been
overshadowed by the publicity generated by the lawyering. Sypher was charged with
six counts of criminal conduct arising from her efforts to extort the University of
*
The Honorable Paul Maloney, Chief United States District Judge for the Western District of
Michigan, sitting by designation.
1
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Louisville’s head basketball coach, Rick Pitino. After a nine-day jury trial, Sypher was
convicted of each of the charged counts. Sypher made several post-trial motions,
including one for a new trial based on new evidence and ineffective assistance of
counsel. The district court denied all of her post-trial motions. Sypher appeals her
conviction and the denial of her post-trial motions. We have considered Sypher’s appeal
of her conviction, as well as the allegations and arguments that she makes in support of
a new trial. Having carefully reviewed the record, as well as Sypher’s arguments, we
AFFIRM the judgment of the district court.
I.
On the evening of July 21, 2003, Sypher and Pitino, who were unknown to each
other at the time, were present at the same restaurant in Louisville, Kentucky. The exact
circumstances of the initial meeting between Sypher and Pitino are disputed, but
eventually the two spent time drinking and speaking together that night. Sypher alleges
that Pitino raped her at the restaurant that night; Pitino testified that they had a
consensual sexual encounter. Sypher soon learned that she was pregnant and contacted
Pitino. Sypher alleges that Pitino raped her a second time during a second meeting
between the two that they had set up to discuss her pregnancy. Eventually, Pitino, with
the help of his employee, Tim Sypher,1 arranged for Sypher to have an abortion.
At trial, Lester Goetzinger, an old friend of Sypher’s, testified that in February
2009, Sypher told him that Pitino had raped her twice; that Pitino had impregnated her;
and that she had an abortion. According to Goetzinger, Sypher gave him Pitino’s cell
phone number and asked Goetzinger to call Pitino to make requests of him on Sypher’s
behalf; Sypher asked that Goetzinger make the calls from a payphone so that they could
not be traced. According to Goetzinger, Sypher wanted, among other things, a house
and between $200,000 and $400,000 from Pitino. Goetzinger testified that he
subsequently made three calls to Pitino’s cell phone—two calls on February 26, and one
on February 28. Goetzinger left anonymous voice messages each time. In the first
1
Karen Sypher married Tim Sypher in 2004. To avoid confusion, we identify Tim Sypher by
his first name.
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message, Goetzinger mentioned that he had “info” that Pitino had paid for “a young lady
that [Pitino] presumably raped” to have an abortion. The second message mentioned the
alleged second rape and stated, “So, naw, I’m not out to get money. I don’t want no part
of that, but . . . I just want you to do the right thing for that woman.” The third message
mentioned the media: “Within two weeks, the media will be notified of all the details
and evidence of the rape.” Eventually, Sypher admitted her involvement in the calls to
FBI agents, identified the anonymous caller as Lester Goetz (Sypher apparently provided
the wrong name for Goetzinger initially), and directed the FBI to Goetzinger’s home.
On April 24, the United States filed a criminal complaint against Sypher. The
charges against Sypher are based on the phone calls described here, as well as other
attempts by Sypher to extort Pitino, and false statements Sypher made to the FBI.
On November 18, the grand jury returned the Superceding Indictment against Sypher,
charging her with one count of willfully causing another to transmit threatening
communications in interstate commerce with intent to extort in violation of 18 U.S.C.
§ 875(d); one count of making threatening communications in interstate commerce with
intent to extort in violation of section 875(d); one count of mailing threatening
communications with intent to extort in violation of 18 U.S.C. § 876(d); two counts of
making false statements to the FBI in violation of 18 U.S.C. § 1001; and one count of
retaliating against an individual for providing truthful information about the commission
of a crime to law enforcement in violation of 18 U.S.C. § 1513(e). On August 5, 2010,
after a nine-day jury trial, Sypher was convicted of all six counts.
After trial, Sypher’s trial counsel requested an extension of time beyond the
fourteen days allowed for a defendant to move for a new trial under Federal Rule of
Criminal Procedure 33(b)(2). The district count granted the motion and required that
any new trial motion, besides one based on newly discovered evidence, be filed within
forty-five days of the verdict, i.e., by September 19. On October 20, Sypher’s new
counsel—not her trial counsel, or either of the individuals who represented her before
trial—entered his appearance as Sypher’s retained attorney. On that day, he moved to
remove the trial judge pursuant to 28 U.S.C. § 144, and to disqualify the trial judge
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pursuant to 28 U.S.C. § 455. Sypher’s new counsel subsequently filed several other
motions.
On January 5, 2011, Sypher moved for a new trial based on newly discovered
evidence and ineffective assistance of counsel. The district court denied the motion as
untimely, finding that Sypher had failed to identify any newly discovered evidence and
had failed to show excusable neglect that would justify untimely filing. On appeal,
Sypher contends that she was entitled to a new trial because her trial counsel rendered
ineffective assistance. She also argues that the district court erred by (1) denying her
pretrial motions to change venue; (2) creating a web page for free, public access to the
trial materials; (3) releasing completed juror questionnaires to the public before seating
a jury; (4) denying her post-trial motion for access to documentary and other evidence;
and (5) denying her motion for the district court judge to recuse himself. Sypher also
argues that she should be granted a new trial because of cumulative error.
II.
Having carefully considered the record, as well as Sypher’s arguments, we
conclude that she has advanced no arguments of merit on appeal. As an initial matter,
we decline to address Sypher’s claim that her trial counsel was ineffective. “Except in
rare circumstances,” this Court does not review ineffective assistance of counsel claims
on direct appeal because “claims of ineffective assistance must be addressed in the first
instance by a district court pursuant to a claim under 28 U.S.C.§ 2255.” United States
v. Gunter, 620 F.3d 642, 643 n.1 (6th Cir. 2010). Sypher has not pursued her ineffective
assistance of counsel claim in the district court under Section 2255, and the record is not
sufficiently developed—there has been no evidentiary hearing and no testimony by
Sypher, by her former counsel, or by any other witnesses—to address Sypher’s
ineffective assistance of counsel claim on direct appeal. See United States v. Walden,
625 F.3d 961, 967 (6th Cir. 2010) (“[A] defendant cannot typically raise claims of
ineffective assistance of counsel on direct appeal because the record is not developed for
the purpose of litigating an ineffective assistance claim and is often incomplete.”).
Therefore, this Court declines to consider whether counsel was ineffective. “[Sypher]
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may of course, if [she] chooses, pursue this claim through the more traditional method
of a collateral proceeding.” Id. (citing Massaro v. United States, 538 U.S. 500, 504
(2003); 28 U.S.C. § 2255 (2006)).
Sypher’s other arguments of reversible error by the district court also fail.
Sypher has not established that the district court should have granted her a new trial
based on newly discovered evidence. This Court reviews for abuse of discretion a
district court’s judgment on a Rule 33 motion for a new trial. United States v. Pierce,
62 F.3d 818, 823 (6th Cir. 1995). To prevail on a motion for a new trial based on newly
discovered evidence, “a defendant must show that the new evidence (1) was discovered
after the trial, (2) could not have been discovered earlier with due diligence, (3) is
material and not merely cumulative or impeaching, and (4) would likely produce an
acquittal.” United States v. Hanna, 661 F.3d 271, 297 (6th Cir. 2011). The district court
correctly articulated and applied this standard to Sypher’s claim, and a careful review
of Sypher’s briefs on appeal reveals that she has failed to identify any newly discovered
evidence. We conclude that the district court did not abuse its discretion in denying
Sypher a new trial.
Sypher has also failed to demonstrate that the district court should have granted
her motions for a change of venue. Sypher argues that the pretrial publicity in the case
made it impossible for her to receive a fair trial. Sypher made two motions to change
venue, once before the empanelling of the jury and once after the empanelling of the
jury, at the same time as she moved to strike the jury. When the defendant moves for
a venue change, “the trial court must transfer the case if ‘the court is satisfied that so
great a prejudice against the defendant exists in the transferring district that the
defendant cannot obtain a fair and impartial trial there.’” United States v. Jamieson, 427
F.3d 394, 412 (6th Cir. 2005) (quoting Fed. R. Crim. P. 21(a)). The denial of a motion
for a change of venue is reviewed for abuse of discretion. Id. The media attention
surrounding this case was substantial because of the celebrity of Pitino and the local
passions surrounding college basketball. Moreover, Sypher herself approached the
media to share her account on at least two occasions. While “pretrial publicity [can be]
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so great that prejudice is presumed,” pretrial publicity on its own does not create a
presumption that the defendant was denied a fair trial. Id. (“To satisfy due process
concerns . . . it is not necessary for the jury to be totally ignorant of the case or to be
wholly free from any exposure to pretrial publicity.”). In the absence of presumptive
prejudice, voir dire is the “primary tool for discerning actual prejudice.” Foley v.
Parker, 488 F.3d 377, 387 (6th Cir. 2007). Sypher has not demonstrated that the
publicity surrounding her trial should create a presumption of prejudice and she has not
alleged any aspects of voir dire that reveal she was denied an impartial trial based on
venue. The district court did not abuse its discretion when it denied her motions for a
change of venue.
Sypher has also failed to demonstrate that the district court erred by creating a
website allowing public access to the district court’s docket. “[B]y agreement of
counsel,” the district court designated the deputy clerk as “media liaison” and created
a “dedicated website” for media information because of “extensive public interest in this
matter.” The website allowed access only to publicly filed documents, not those
documents filed under seal, and it allowed the public documents to be accessed free of
charge. Because the public is typically able to review publicly-filed court records, attend
voir dire, and observe the trial, the district court did not reversibly err in allowing free,
public access to the docket during Sypher’s trial.
Sypher’s argument that the district court erred by releasing the completed juror
questionnaires to the public two weeks before trial is also meritless. Sypher did not
object to this before the district court, and so we review the decision to release the
questionnaires for plain error. United States v. Olano, 507 U.S. 725, 732-35 (1993).
“Plain error” means that an error is clear or obvious. Id. at 734. To warrant reversal, the
plain error must also have affected an individual’s substantial rights, and seriously
affected the fairness, integrity, or public reputation of the judicial proceeding. Id. at 736.
Sypher argues that the release of the questionnaires made “[t]he promise of a fair trial
. . . non-existent when the public bec[a]me[] aware of [the] juror[s’] personal beliefs and
values regarding the trial they [we]re sitting on.” This assertion, however, does not
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explain how the release of the questionnaires could have had an impact on the trial itself.
Though releasing juror questionnaires before trial was an unusual decision, and not the
normal situation, Sypher has presented no evidence that the release seriously affected
the fairness, integrity, or public reputation of the judicial proceeding, and we cannot say
that the district court reversibly erred in releasing them to the public.
Sypher next argues that the district court abused its discretion by denying her
access “to original evidence.” It appears that she is referring to the court’s denial of her
post-trial filing of an “Omnibus Motion to Produce Voice Exemplars . . . Original Voice
Recordings . . . and Original Photographs . . . for Forensic Testing.” In denying these
requests, the district court noted that “no legal authority requires or authorizes such post-
trial discovery.” On appeal, Sypher cites no case law suggesting she was due access to
the evidence she sought following her conviction. We conclude that the district court
did not abuse its discretion in denying Sypher’s post-trial motion.
Sypher has also failed to establish that the district court judge should have
recused himself from presiding over her trial. A district judge’s denial of a motion to
recuse is reviewed for abuse of discretion. Johnson v. Mitchell, 585 F.3d 923, 945 (6th
Cir. 2009). To justify recusal, the moving party must demonstrate prejudice by the
judge, and the judge’s prejudice must be personal or extrajudicial. Jamieson, 427 F.3d
at 405 (citing United States v. Hartsel, 199 F.3d 812, 820 (6th Cir. 1999)). Sypher
makes no specific allegations about why the district court in this case was not impartial.
Instead, Sypher alleges, for example, that the district court “accused [Sypher’s counsel]
of plagiarizing his staff’s own original work regarding an opinion written by [Sypher’s
counsel’s] staff.” This is not evidence of bias. See Alley v. Bell, 307 F.3d 380, 388 (6th
Cir. 2002) (finding that hostility toward defendant’s trial counsel is not evidence of bias
where it stemmed from events occurring in the course of the proceeding). Sypher has
done nothing more than make conclusory allegations to support her claim that the district
court was biased against her. See Lyell v. Renico, 470 F.3d 1177, 1186 (6th Cir. 2006)
(“[A] judge’s misconduct at trial may be characterized as bias or prejudice only if it is
so extreme as to display clear inability to render fair judgment, so extreme in other
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words that it displays a deep-seated favoritism or antagonism that would make fair
judgment impossible.”) (alteration, citation, and internal quotation marks omitted). The
district court did not abuse its discretion in denying her motion to recuse.
Finally, Sypher argues that she should be granted a new trial because of
cumulative error. The cumulative effect of errors that are harmless by themselves can
be so prejudicial as to warrant a new trial. See United States v. Hernandez, 227 F.3d
686, 697 (6th Cir. 2000). To warrant a new trial, however, the cumulative effect of the
errors must have “deprived [the defendant] of a trial consistent with constitutional
guarantees of due process.” Id.; see also United States v. Deitz, 577 F.3d 672, 697 (6th
Cir. 2009) (holding that cumulative error exists when “the combined effect of
individually harmless errors [is] so prejudicial as to render [a defendant’s] trial
fundamentally unfair”). Where, as here, no individual ruling has been shown to be
erroneous, there is no “error” to consider, and the cumulative error doctrine does not
warrant reversal. Deitz, 577 F.3d at 697. Sypher has not demonstrated that she is due
a new trial because of cumulative error.
III.
Accordingly, we AFFIRM the judgment of the district court.