                                                                                                                           Opinions of the United
2004 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


12-23-2004

USA v. Kobold
Precedential or Non-Precedential: Non-Precedential

Docket No. 04-1800




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"USA v. Kobold" (2004). 2004 Decisions. Paper 36.
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                                                                     NOT PRECEDENTIAL

                   IN THE UNITED STATES COURT OF APPEALS
                            FOR THE THIRD CIRCUIT
                                 ____________

                                      No. 04-1800
                                     ____________

                           UNITED STATES OF AMERICA,

                                            v.

                                  MICHAEL KOBOLD,

                                            Appellant
                                      ____________

                      Appeal from the United States District Court
                       For the Western District of Pennsylvania
                                D.C. No.: 03-cr-00010
                        District Judge: Honorable Joy F. Conti
                                    ____________

            Submitted Under Third Circuit LAR 34.1(a) December 13, 2004

             Before: NYGAARD, ROSENN, and BECKER, Circuit Judges

                        (Filed      December 23, 2004            )
                                     ____________

                                 OPINION OF THE COURT
                                      ____________

ROSENN, Circuit Judge.

       Defendant Michael Kobold (“Kobold”) was tried to a jury in the United States

District Court for the Western District of Pennsylvania, and convicted on one count of

willfully making false statements, in violation of 18 U.S.C. § 1001. On this timely
appeal, Kobold raises three issues: (1) whether the evidence adduced at trial was

sufficient to support his conviction; (2) whether he was unduly prejudiced by the closing

statements of his co-defendant’s counsel; and (3) whether his trial counsel rendered

ineffective assistance by, inter alia, failing to move for a judgment of acquittal and failing

to object to the closing remarks of co-defendant’s counsel. We affirm the judgment of

conviction and sentence imposed by the District Court.

                                              I.

        Because the facts are known to the parties and counsel, we briefly refer only to the

salient facts pertinent to the issues raised. Kobold, born and raised abroad, was educated

internationally. In 2002, he earned a bachelor of science degree in economics from

Carnegie Mellon University, in Pittsburgh, Pennsylvania. Kobold operates a company

that he founded, which designs and manufactures watches. He also works in his father’s

business, which designs and manufactures instruments for industrial applications. He

also presides over a non-profit organization of his creation, the Kobold Foundation.

        Although not a law enforcement officer, Kobold apparently has an interest in law

enforcement. His conviction stems from his illicit use of a constable’s badge to gain

access to a secured area of the Pittsburgh International Airport reserved for ticketed

passengers only. When questioned by a federal customs inspector about his presence in

this area without a ticket, Kobold produced a Pennsylvania constable’s badge, and

responded that he was a Pennsylvania constable. He explained that he had recently lost



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his constable’s identification and Pennsylvania driver’s license in the course of making an

arrest.

                                               II.

          Kobold concedes that he has failed to preserve his first two claims that: (1) the

evidence was insufficient to sustain the jury’s verdict and (2) the closing statements of co-

defendant’s counsel were unduly prejudicial. Thus, we review these claims for plain

error. United States v. Powell, 113 F.3d 464, 466-67 (3d Cir. 1997); United States v.

Sandini, 888 F.2d 300, 309 (3d Cir. 1989). To demonstrate plain error, Kobold must

show that: (1) there was an error; (2) the error was clear; (3) it affected “substantial

rights”; and (4) it “seriously affect[ed] the fairness, integrity, or public reputation of

judicial proceedings.” Johnson v. United States, 520 U.S. 461, 467 (1997) (citations

omitted). Kobold has not satisfied this burden.

          We apply a particularly deferential standard of review when we consider whether

a jury verdict is supported by legally sufficient evidence. United States v. Dent, 149 F.3d

180, 187 (3d Cir. 1998). The evidence is viewed in the light most favorable to the

government, and we will sustain the verdict if any rational trier of fact could have found

the essential elements of the crime beyond a reasonable doubt. Id. (quoting United States

v. Voigt, 89 F.3d 1050, 1080 (3d Cir. 1996), in turn quoting Jackson v. Virginia, 443 U.S.

307, 319 (1979)) (internal citation omitted). The evidence against Kobold, including his

own admissions, is more than sufficient to support the jury verdict. It is undisputed that



                                               3
Kobold was never actually a constable or deputy constable. It is also undisputed that

Kobold never possessed a Pennsylvania driver’s license. At trial, Kobold admitted that he

identified himself as a law enforcement officer, displayed his constable’s badge, and

explained that he lost his constable’s identification while effectuating an arrest. Kobold

denied telling the customs inspector that he had a Pennsylvania driver’s license, but

admitted that he falsely told the inspector that he misplaced his driver’s license. Other

evidence produced at trial, including the testimony of the federal customs inspector who

questioned Kobold, amply supports the jury’s guilty verdict.

       Further, because the jury was presented with sufficient evidence of Kobold’s

guilt, we reject his claim that he suffered undue prejudice as a result of the closing

remarks of counsel for his co-defendant.

       Kobold also argues that he received ineffective assistance of counsel. As a

general rule, we will not entertain ineffective assistance of counsel claims on direct

review. Rather, we “defer the issue of ineffectiveness of trial counsel to a collateral

attack,” so that the record can be adequately developed with facts necessary to decide

such claims. United States v. Thornton, 327 F.3d 268, 271 (3d Cir. 2003); see also

Massaro v. United States, 538 U.S. 500, 504-05 (2003). Therefore, Kobold’s ineffective

assistance of counsel claim must abide the determination of the court in the event he

raises it in a collateral proceeding pursuant to 28 U.S.C. § 2255.

       For the foregoing reasons, we affirm the judgment of conviction and sentence.



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