                                                              FILED
                                                  United States Court of Appeals
                     UNITED STATES COURT OF APPEALS       Tenth Circuit

                           FOR THE TENTH CIRCUIT                         June 19, 2012

                                                                      Elisabeth A. Shumaker
                                                                          Clerk of Court
UNITED STATES OF AMERICA,

             Plaintiff-Appellee,

v.                                                         No. 11-3253
                                                (D.C. Nos. 5:10-CV-04150-MLB &
ARLAN DEAN KAUFMAN,                                  5:04-CR-40141-MLB-1)
                                                             (D. Kan.)
             Defendant-Appellant.


                        ORDER DENYING CERTIFICATE
                            OF APPEALABILITY*


Before TYMKOVICH, BALDOCK, and GORSUCH, Circuit Judges.



      Arlan Dean Kaufman was convicted of numerous federal charges related to his

physical and sexual abuse of mentally ill persons under his care at a residential

treatment facility in rural Kansas. The district court sentenced Kaufman to 30 years’

imprisonment.

      He now seeks a certificate of appealability (COA) to appeal the denial of his

28 U.S.C. § 2255 motion for sentencing relief. He contends that he received



*
       This order is not binding precedent, except under the doctrines of law of the
case, res judicata, and collateral estoppel. It may be cited, however, for its
persuasive value consistent with Fed. R App. P. 32.1 and 10th Cir. R. 32.1.
ineffective assistance of trial counsel. We have jurisdiction under 28 U.S.C. § 1291,

and we deny a COA.

                                     Background

      Because the facts of this case are recounted in detail in our opinion on direct

appeal, United States v. Kaufman, 546 F.3d 1242 (10th Cir. 2008), and the parties are

familiar with those facts, we provide only a brief summary.

      Kaufman, a doctor of social work, and his wife owned and operated the

Kaufman House Residential Care Treatment Center, an unlicensed group home for

severely mentally-ill persons. After deputies discovered two of the Center’s male

residents working in the nude on a Kaufman farm, authorities initiated an

investigation of the Center. “They learned that, over a period of more than fifteen

years, the Kaufmans had directed the severely mentally ill residents . . . to perform

sexually explicit acts and farm labor in the nude while maintaining that these acts

constituted legitimate psychotherapy for the residents’ mental illnesses.” Id. at 1246.

Execution of a search warrant uncovered seventy-eight videotapes in Kaufman’s

bedroom, many showing residents engaged in graphic sex acts directed and filmed by

Kaufman. “In several instances, the tapes show Dr. Kaufman touching the genitals of

some of the residents (two women and a man).” Id. at 1249.




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      At trial, the prosecution played some of the tapes for the jury and offered

testimony from some of the residents who appeared on the tapes. Additionally, two

psychiatrists, a psychologist, and a social worker testified that there was no

therapeutic justification for the nudity and sex acts suggested by Kaufman; indeed,

they testified that the acts were quite harmful. There was also evidence that

Kaufman used physical force against residents, confined residents naked to a

“seclusion room” that lacked a bed and a toilet, id. at 1250, and took some of the

residents to a nudist colony. Finally, the residents testified that the Kaufmans had

restricted the information they could give to medical and law-enforcement personnel.

      Kaufman testified in his own defense, asserting that residents voluntarily

engaged in nudity and the videotaped sex acts. He maintained that sexual behavior

was appropriate for the residents and helpful in preventing improper behavior.

      As the jury began its deliberations, it was provided the videotapes admitted

into evidence, along with a VCR and television “in the event that the jury wanted to

view the videotapes.” Aplt. Br. at 15. After deliberating for nearly seventeen hours,

the jury returned guilty verdicts.

      Kaufman’s convictions and sentence were affirmed on direct appeal. The

district court denied § 2255 relief in a thorough and well-reasoned decision.

Kaufman now seeks a COA to perfect an appeal from that decision.




                                          -3-
                                       Discussion

      I. Standards of Review

      “The issuance of a COA is a jurisdictional prerequisite to an appeal from the

denial of an issue raised in a § 2255 motion.” United States v. Gonzalez, 596 F.3d

1228, 1241 (10th Cir. 2010). To obtain a COA, Kaufman must demonstrate that

“reasonable jurists could debate whether (or, for that matter, agree that) the petition

should have been resolved in a different manner or that the issues presented were

adequate to deserve encouragement to proceed further.” Slack v. McDaniel, 529 U.S.

473, 484 (2000) (quotation omitted).

      To establish ineffective assistance of counsel under Strickland v. Washington,

466 U.S. 668 (1984), a petitioner must show both that his counsel’s performance fell

below an objective standard of reasonableness, and that he suffered prejudice as a

result. Id. at 688, 694. Our review of counsel’s performance is highly deferential;

the petitioner must overcome the presumption that, “under the circumstances, the

challenged action might be considered sound trial strategy.” United States v. Taylor,

454 F.3d 1075, 1079 (10th Cir. 2006) (quotation omitted). To demonstrate prejudice,

the petitioner must show that “there is a reasonable probability that, but for counsel’s

unprofessional errors, the result of the proceeding would have been different.”

Strickland, 466 U.S. at 694.




                                          -4-
      II. Conduct of Counsel

      Kaufman posits five grounds for concluding the conduct of his counsel

violated constitutional norms. We address each in turn.

                                     A. Videotapes

      Kaufman argues that his trial counsel was ineffective for not objecting to the

jury being given videos that were not played in open court. He contends that lack of

an objection violated his “right to be present at every stage of the criminal

proceeding,” Aplt. Br. at 30, and is presumptively prejudicial. The district court

disagreed, stating that Kaufman considered the tapes to be evidence demonstrating

the legitimacy of his therapy methods, and that he failed to show how the lack of an

objection resulted in his conviction.

      We do not find the district court’s ruling debatable. Defense counsel’s failure

to object is consistent with a trial strategy to minimize the tapes’ damning impact by

portraying them as recordings of therapy sessions or voluntary behavior. Kaufman

does not indicate whether the “unplayed tapes,” id. at 38, were inconsistent with such

a strategy. And to the extent Kaufman objects to the use of such a strategy, he has

not shown that it was unreasonable “considering all the circumstances” of the case

against him. United States v. Rushin, 642 F.3d 1299, 1307 (10th Cir. 2011)

(quotation omitted), cert. denied, 132 S. Ct. 1818 (2012).1


1
      We reject Kaufman’s claim that trial counsel acted unreasonably in failing to
foresee that his expert’s testimony in support of his therapy strategy would ultimately
                                                                            (continued)
                                          -5-
      But even if counsel’s failure to object was deficient performance, Kaufman has

not shown prejudice. First, there is no evidence that the jurors watched any unplayed

tapes. Indeed, as Kaufman notes, during trial “the jury was so fed up” with watching

tapes depicting residents’ sexual behavior that a juror “sent a question to the court

asking how many more videos the jury would be required to watch.” Aplt. Br. at 20.

      To the extent Kaufman relies on United States v. Noushfar, 78 F.3d 1442

(9th Cir. 1996), to contend that we should presume prejudice, that case is not

persuasive. Specifically, Noushfar involved tape recordings made by the government

during an undercover investigation. The Ninth Circuit held that giving the jury

access to tapes that had not been played in the courtroom constituted structural error

because it was “akin to allowing a new witness to testify privately, without cross-

examination, to the jury during its deliberations.” Id. at 1445. But here, it was the

defendant who made the recordings, and he tied them to his defense strategy. Under

these circumstances, we will not deem counsel’s failure to object structural error or

presumptively prejudicial trial performance.2


be excluded under Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 589
(1993) (holding that trial courts have a gatekeeping function to ensure both the
relevance and reliability of scientific expert testimony). As Kaufman concedes,
“the government did not file its motion to exclude [the expert’s] testimony until
mid-trial.” Aplt. Br. at 42. And even if the government alerted counsel before trial
that it would seek to exclude the expert’s testimony under Daubert, it was not
unreasonable for defense counsel to proceed under the therapy strategy and fight for
the expert’s testimony when the government challenged it.
2
      Kaufman also argues that his counsel should have objected to the videotapes
that were played at trial as irrelevant, prejudicial, and cumulative. He contends that
                                                                            (continued)
                                            -6-
                              B. The “No Eye Contact” Order

       Prior to trial, the district judge ordered the Kaufmans to avoid any contact with

the victims during trial, including, “to the extent possible, . . . eye contact with the

victims when they are in court.” Kaufman, 546 F.3d at 1251 (quotation omitted).

The district judge explained that he did not “want to deal with complaints that

defendants [were] trying to influence or intimidate victims through eye contact.” Id.

Defense counsel did not object. On direct appeal, this court applied plain-error

review and stated, “There is considerable support for the Kaufmans’ contention that

the district court erred in issuing the no-eye-contact order” without making

particularized findings. Id. at 1255-56. We then concluded that, “even assuming that

the district court plainly erred, . . . the Kaufmans have not established the prejudice

required to obtain relief under the plain error analysis.” Id. at 1257.

       In the § 2255 proceedings below, Kaufman argued that his trial counsel was

ineffective for not objecting. The district court disagreed, citing this court’s

lack-of-prejudice conclusion as supporting its own conclusion that counsel’s failure


the tapes “do not shed much light” on the government’s charges, Aplt. Br. at 52, that
testimony describing the residents’ sexual behavior would have been adequate on its
own, see, e.g. id. at 47, and that “brief clip[s] . . . would have sufficed to support the
government’s argument,” id. The district court determined that counsel’s failure to
object was not ineffective assistance, reasoning that an objection would have, for the
most part, failed because the tapes were highly probative and not unfairly prejudicial.
We agree. The government was entitled to make its case using the videotapes. Even
if defense counsel had objected and managed to exclude or truncate some of the
video clips, he would not have been able to exclude enough material to make a
difference in the outcome of the case.


                                           -7-
to object was not prejudicial under Strickland. As Kaufman observes, however, the

burden of establishing prejudice on direct appeal would have been different had there

been an objection at trial. Specifically, had there been an unsuccessful trial

objection, and had this court on direct appeal definitively declared error, the

government would have had the burden of showing that the error was harmless

beyond a reasonable doubt. See id. at 1259. But under plain-error review, it was

Kaufman’s burden to demonstrate prejudice. Id.

      Nevertheless, we disagree with Kaufman’s basic premise that “[u]nder a

harmless error standard, [he] would have been entitled to a new trial.” Aplt. Br.

at 41. The evidence against him was overwhelming. In addition to the videotapes

admitted at trial, residents of the Center and mental-health experts offered detailed

testimony in support of the charges against Kaufman. We conclude that the district

court’s decision that Kaufman is not entitled to relief based on counsel’s failure to

object to the “no eye contact” order is not debatable.

                                   C. Closing Argument

      Kaufman also contends that trial counsel provided ineffective assistance

during closing arguments by not objecting to (1) the prosecutor’s misstatements of

the evidence; and (2) accusations that the Kaufmans had lied.3 The district court


3
       Before the district court, Kaufman also argued that the prosecution vouched
for the credibility of its witnesses. Because he has provided no discussion regarding
vouching on appeal, the argument is abandoned. See Swanson ex rel. Swanson v.
Guthrie Indep. Sch. Dist. No. I-L, 135 F.3d 694, 702-03 (10th Cir. 1998).


                                          -8-
rejected the first contention on the grounds that it had instructed the jury that

counsel’s arguments are not evidence, and that any misstatements concerned only a

small portion of the evidence. It then cited our opinion in Bledsoe v. Bruce, 569 F.3d

1223, 1239 (10th Cir. 2009), holding that “[a] jury instruction may minimize the

impact of any error made by misstating the evidence in closing arguments.” We find

nothing debatable in this respect.

      As for Kaufman’s second contention, that the prosecutor accused the

Kaufmans of being liars without objection by defense counsel, the district court

stated that the evidence showed that they had, in fact, lied. Thus, it would have

overruled an objection. Indeed, “it is permissible for the prosecution to comment on

the veracity of a defendant’s story . . . on account of irreconcilable discrepancies

between the defendant’s testimony and other evidence in the case.” Bland v.

Sirmons, 459 F.3d 999, 1025 (10th Cir. 2006).

      Kaufman has not demonstrated that an objection by defense counsel would

have been meritorious or that a failure to object had any effect on the outcome of the

case. The district court’s decision on this point is not debatable.

                     D. Cumulative Ineffective Assistance of Counsel

      Kaufman argues that “the cumulative effect of counsel’s errors must be

considered.” Aplt. Br. at 61. The district court does not appear to have addressed

this argument. Nevertheless, because we reject all of Kaufman’s individual claims of

ineffective assistance of counsel, we cannot hold that the cumulative effect of his


                                           -9-
counsel’s conduct was nonetheless ineffective. See Bunton v. Atherton, 613 F.3d

973, 990 (10th Cir. 2010) (observing that “the cumulative error doctrine does not

apply [w]here . . . we have not found the existence of two or more actual errors”).

      III. Evidentiary Hearing

      Insofar as Kaufman suggests that the district court erred in ruling on his

§ 2255 motion without holding a hearing, we conclude that “the motion and the files

and records of the case conclusively show that the prisoner is entitled to no relief.”

28 U.S.C. § 2255. Thus, the district court appropriately declined to hold a hearing.

                                      Conclusion

      No reasonable jurist could dispute that the district court properly denied

Kaufman relief under 28 U.S.C. § 2255. Accordingly, Kaufman’s application for a

COA is DENIED, and this appeal is DISMISSED.


                                                  Entered for the Court



                                                  ELISABETH A. SHUMAKER, Clerk




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