                                                                                                                           Opinions of the United
2009 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


5-28-2009

Kamienski v. Hendricks
Precedential or Non-Precedential: Non-Precedential

Docket No. 06-4536




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                                                             NOT PRECEDENTIAL

                      UNITED STATES COURT OF APPEALS
                           FOR THE THIRD CIRCUIT
                                _____________

                                     No. 06-4536
                                    _____________

                                PAUL KAMIENSKI,
                                           Appellant

                                           v.


                    ROY L. HENDRICKS, Administrator;
            ATTORNEY GENERAL OF THE STATE OF NEW JERSEY;
                 OCEAN COUNTY PROSECUTOR'S OFFICE

                                    ______________

                   On Appeal from the United States District Court
                          for the District of New Jersey
                              (D.C. No. 02-cv-03091)
                        District Judge: Stanley R. Chesler
                                _______________

                               Argued April 16, 2009

         Before: McKEE, SMITH, and VAN ANTWERPEN, Circuit Judges.

                                (Filed: May 28, 2009)




Timothy J. McInnis, Esq. (Argued)
Law Office of Timothy J. McInnis
521 Fifth Avenue, Suite 1700
New York, NY 10175
       Counsel for the Appellant

                                          1
Samuel J. Marzarella, Esq. (argued)
Marlene Lynch Ford
Prosecutor of Ocean County New Jersey
119 Hooper Avenue
P.O. Box 2191
Toms River, NJ 08754
      Counsel for Appellees

                                    _______________

                               OPINION OF THE COURT
                                   _______________

McKee, Circuit Judge

       Paul Kamienski appeals from the final order of the United States District Court for

the District of New Jersey denying his petition for a writ of habeas corpus. In that

petition, Kamienski challenged the sufficiency of the evidence to support his 1987

conviction for murder and felony murder in New Jersey state court. The sole question

certified to us on appeal from the order denying habeas relief is whether the evidence was

sufficient to prove Kamienski guilty of first degree murder and felony murder beyond a

reasonable doubt. Based upon our careful review of the record, and despite the very

deferential standard that limits our inquiry, we believe that no reasonable juror could

conclude that the evidence admitted against Kamienski at his trial established that he was

guilty of murder or felony murder beyond a reasonable doubt, and the New Jersey courts’

conclusion to the contrary is an unreasonable application of clearly established Supreme

Court precedent. Accordingly, as we shall explain below, we hold that the district court

erred in denying Kamienski’s petition, and we will therefore remand to the district court

                                             2
with instructions to grant relief.1

                                      I. Factual Background 2

       On September 24, 1983, the body of Henry “Nick” DeTournay was recovered from

the waters of Barnegat Bay in New Jersey. The body was wrapped in a blanket and a

sleeping bag and tied to a cement block, and Kamienski’s business card was found in one

of Nick’s pockets. Writing on the back of that card referred to an apartment phone

number and a “boat” phone number for “Paul and Donna.” The following day, Barbara

DeTournay’s body was found in the bay wrapped in a brown blanket not far from where

Nick’s body had been recovered. Subsequent investigation established that both Nick and

Barbara DeTournay had been killed by multiple gun shot wounds inflicted several days

before their bodies were discovered.

       The ensuing investigation by the Ocean County Prosecutor’s office eventually

focused on Paul Kamienski, Anthony Alongi and Joseph Marsieno.3 Investigators

developed the theory that the DeTournays had been killed in the course of a large drug

deal. However, investigators were not able to formally charge anyone for the murders



       1
           We have appellate jurisdiction under 28 U.S.C. §§ 1291 and 2253.
       2
          Since the only issue before us is the sufficiency of the evidence, we must set forth
the evidence that was developed at trial in some detail. We must state the facts in the
light most favorable to the government, and draw all reasonable inferences from those
facts in the government’s favor.
       3
         Joseph Marsieno is also referred to as “Marzeno” and “Marseno” in various
places in the record. Like the district court, we shall refer to him as “Marsieno.”

                                                 3
until October of 1987 when Kamienski, Alongi, and Marsieno were charged with robbery,

murder and conspiracy to distribute the cocaine that the DeTournays had been trying to

sell.

        Thereafter, the three defendants were tried jointly. Donna Duckworth, who was

Kamienski’s girlfriend from 1981 to 1987, was the main witness against Kamienski.

Kamienski and Duckworth “partied” regularly and frequently shared cocaine. Duckworth

and Kamienski met the DeTournays in the summer of 1982 when the DeTournays docked

their boat at the New Jersey marina where Kamienski kept his boat. In 1983, Nick

DeTournay visited Kamienski on his boat a few days before Labor Day to inquire if

Kamienski knew anyone interested in purchasing a large quantity of cocaine, and

Kamienski stated that he did. During the summer of 1983, Kamienski was buying the

cocaine he and Duckworth used from Marsieno and Alongi, whom they had met

previously.

        During a Labor Day weekend party, Kamienski took the DeTournays to Alongi’s

home and introduced them to Alongi. During that meeting Kamienski vouched for

Alongi to the DeTournays, and he also vouched for the DeTournays to Alongi.

        Christine Longo, Barbara DeTournay’s sister, testified that Barbara DeTournay

had told her that she (Barbara) had spent time during the Labor Day weekend on the boat




                                            4
of a friend named “Paul,” who was a funeral director.4 Thereafter, Barbara advised

Christine that she and her husband were trying to sell some cocaine and that they would

“be set for life” because of a cocaine deal they had arranged. Longo did not know how

much cocaine was involved, but she could tell that it was a “large quantity.”

       Duckworth testified that on September 9, a few days after Labor Day, she heard

Kamienski telling someone on the phone “he didn’t have a scale and to get off the boat.”

When Duckworth inquired, Kamienski told her that he had been speaking to Nick

DeTournay. Phone records that were admitted into evidence showed a call from

Kamienski to the residence where the DeTournays were staying on September 9, 1983.

There is no further indication in the record of communications between Kamienski and

the DeTournays between September 9 and September 19, 1983 when the DeTournays

were murdered.

       Kamienski and Duckworth attended a party at Alongi’s house on Saturday,

September 17, and there was talk about good quality cocaine becoming available in the

very near future. According to Duckworth, Marsieno and Alongi were the ones who

spoke of the upcoming deal. “Buddy” Lehman, a user who purchased cocaine from

Alongi, also heard Alongi make these statements. Marsieno told his girlfriend, Jeanne

Yurcisin, that “he was expecting to get a great deal of cocaine, that it was supposed to be




       4
       It is clear from all of the testimony that the “Paul” that Christine was referring to
was Paul Kamienski.

                                              5
very good, and it was supposed to burn at 88 to 92 percent, and it was coming up from

Florida from friends of Paul and Donna’s.”

       Jeffrey Sidney was the associate of the DeTournays’ responsible for driving the

cocaine from Florida to New Jersey where he checked in to the Holiday Inn in Toms

River. He testified for the prosecution under a grant of immunity. According to Sidney,

the drug deal was initially scheduled for Sunday, September 18. On that day, he met Nick

in the parking lot of the Holiday Inn at 11:30 a.m., but Nick told him that the “people still

weren’t ready and they were getting their money together.” At 4:00 p.m. on the 18th,

Jeanne Yurcisin received a telephone call from Marsieno, in which Marsieno told her to

“pick him up at the Holiday Inn” and “to be there at eight o’clock, not to be a minute late,

because he would be carrying.”

       According to Duckworth’s testimony, she and Kamienski spent the day of the 18th

on Kamienski’s boat and then met Alongi, Marsieno and Jackie Sullivan 5 at the bar of the

Holiday Inn Hotel for drinks around 6:00. Duckworth could not recall what the men

talked about, as she interacted primarily with Sullivan. However, there was no testimony

that anyone at that meeting discussed the pending cocaine transaction. There was also no

testimony that Kamienski met with the DeTournays on the 18th or ever told anyone

(including Duckworth) about any meeting with the DeTournays on the 18th.



       5
        Jackie Sullivan was Alongi’s girlfriend in 1983. By the time of the trial, the two
had married and Jackie Sullivan became Jackie Alongi. Both names appear in the record
and the briefing, but refer to the same person.

                                              6
         Jeanne Yurcisin, Marsieno’s girlfriend, testified that she did pick Marsieno up at

8:00 that evening from the Holiday Inn as instructed and that he was carrying a briefcase.

Yurcisin testified: “as we were pulling away, he said, those lousy MF'ers, He said that

they wanted to see the money first, and that he -- he had no intention of paying them any

money, that he would kill them before they got any of his money.” Yurcisin also testified

that later, at his condo, Marsieno opened the briefcase and that it contained only a gun

and no money.

         As noted above, the drug deal was postponed from September 18, to Monday,

September 19, at 3:00 p.m. according to Sidney, the drug courier. On the 19th, the deal

was further delayed until later in the afternoon. At 5:00 p.m. on the 19th, Barbara was

dropped off at the Holiday Inn to meet Sidney and collect the cocaine. She told Sidney

that instead of Nick coming back with the money, a “distinguished man” would be

picking her up. Thereafter, Sidney saw Barbara get into a car matching the description of

Alongi’s car around 5:00 p.m. Sidney never saw or heard from either of the DeTournays

again.

         Alongi’s neighbor, Mr. Hunt, testified that he saw Nick’s car pull into Alongi’s

driveway and saw Nick get out of the car and shake Alongi’s hand sometime between

3:00 and 6:00 p.m. on Monday, September 19.

         Duckworth testified that Kamienski drove her to a friend’s house and dropped her

off there at about 2:30 p.m. on the 19th. She testified that this was unusual because



                                               7
Kamienski’s license was suspended and he never drove. Furthermore, the two of them

were virtually inseparable during that period as they were always together.

       According to Duckworth, Kamienski subsequently picked her up and brought her

to the Alongi residence around “dusk,” and Kamienski then directed her to wait in the

kitchen with Jackie Sullivan. However, Duckworth did not heed his instruction. Rather,

she went outside towards the dock where she saw Kamienski “standing by the dock”

looking towards Alongi, who was in a boat.6 She saw a blanket and sleeping bag in the

boat and “what appeared . . . to be a body shape in the sleeping bag.” The sleeping bag

was blue and she also saw a brown blanket in the boat. The dock was wet. Alongi started

to lunge at Duckworth when he saw her, but Kamienski told Alongi that Duckworth was

“alright,” and she went back inside.

       After Duckworth returned to the house, she and Sullivan went to the mall and then

to a liquor store. When they returned, Marsieno was also there, and they all shared

drinks. According to Duckworth, Alongi took her upstairs and showed her a gun, a phone

that said “hitman” on it, and then warned her: “if I didn’t be quiet, I’d end up like my

friends.” Alongi also told Duckworth that “Paul wouldn’t be able to save me if I open my

mouth . . . .”

       When Kamienski and Duckworth left Alongi’s house that evening, Duckworth




       6
        Presumably, this was the black marquis boat that belonged to Sullivan’s brother
which the government believes was used to dump the DeTournays’ bodies into the bay.

                                              8
asked Kamienski what happened. Kamienski responded by telling her: “he couldn’t

control what happened” and added that “Nick went first, Barbara didn’t suffer.”

Kamienski then warned her: “if we didn’t shut up that he wouldn’t be able to save me or

himself.” Upon returning to Kamienski’s boat, Duckworth noticed that it was harder to

board the boat than usual because it had been moved slightly forward in its berth and a

box which contained polishing towels and rags had been moved.

       Duckworth also testified that cocaine became very plentiful in late September after

this incident, and Kamienski was looking for a “grinder” after the murders.7 There was

also testimony that after the murders, Marsieno would give small amounts of cocaine to

both Alongi and Kamienski without asking for payment.

       Duckworth also recounted that on October 1, 1983, she, Marsieno, Kamienski,

Alongi, Sullivan, and Yurcisin met at a restaurant. There, she heard Marsieno state:

“[t]hey were like scared puppies . . . it was easy.” When Duckworth exhibited some

discomfort, Marsieno told her to “straighten up or [she] could end up like them . . .”.

       Duckworth also testified that the day Nick DeTournay’s body was found and the

police came to question Kamienski, he instructed her to call Alongi. Telephone records

show that Kamienski called Alongi 5 times in the 6 days following the discovery of the

bodies. Finally, Buddy Lehman - a member of Paul and Donna’s social circle - testified



       7
        According to Duckworth’s testimony, a “grinder” is an appliance that is used to
convert rock cocaine into powder. Sidney testified that the DeTournays’ cocaine was in
rock form.

                                             9
that the same day Nick’s body was found (but before Barbara’s body was recovered),

Kamienski told him: “[M]y friends from Florida have been murdered.” (Emphasis

added).

       Duckworth’s testimony included the fact that the blankets the DeTournay’s bodies

were wrapped in when discovered were similar to blankets that she had seen on

Kamienski’s boat. She also stated that a towel that was found with the bodies resembled

one she had seen Kamienski use to polish his boat, and she testified on direct that the

hitch knots depicted in photos of the recovered bodies that were used to tie the bodies to

cement blocks were the “same type of knots that [Kamienski] would tie.” 8

       There was more testimony at trial regarding evidence linking Alongi and Marsieno

to the crimes, but that evidence was not admitted against Kamienski and has no bearing

on Kamienski’s appeal.9


       8
         The government makes much of this testimony on appeal. See State’s Br. at 36-
37 (“Duckworth had been boating since age five and was familiar with how to secure
boats and the knots boaters used to secure them. Kamienski used a peculiar ‘hitch’ knot
to secure a boat, rather than that taught to Duckworth.”) However, the state’s selective
reliance on that testimony is misleading because Duckworth conceded on cross
examination that there was nothing unique about the knots, and that the hitch knot is a
common boater’s knot. When asked if she had seen other people tie knots like the ones
used to secure the bodies, she responded that she had in “many circumstances.”
Accordingly, the fact finder could only conclude from that portion of her testimony that
Kamienski knew how to tie a common “hitch knot,” used in boating.
       9
         In fact, throughout its brief, counsel for the government has used the term
“defendants” in a manner that included Kamienski without specifying which of the three
defendants the evidence refers to. In several of those references, the evidence being
discussed pertained only to Marsieno and/or Alongi, and not to Kamienski. Moreover,
the government’s brief frequently includes facts based on testimony that was admitted

                                             10
                                  II. Procedural History

       In October, 1987, approximately four years after the killings, a grand jury sitting in

Ocean County, New Jersey, returned an indictment against Paul Kamienski, Anthony

Alongi, and Joseph Marsieno. The indictment charged each defendant with two counts of

first degree murder, one count of felony murder, conspiracy to commit murder and/or

robbery, and conspiracy to possess cocaine with the intent to distribute. The

prosecution’s theory at trial was that Marsieno committed the murders during a drug deal

for three kilograms of cocaine and that Alongi and Kamienski were accomplices to the

robbery and the murder.

       Although it is not determinative of our inquiry into the sufficiency of the evidence

supporting Kamienski’s convictions for murder, or felony murder, it is nevertheless

instructive to note that the prosecutor made the following argument during his closing to

the jury:

              Paul Kamienski was there when [the DeTournays] were murdered.
      Paul Kamienski was there because he put this deal together, he had brokered
      it, the DeTournays trusted him. He was the person they trusted.

                                           ***




only against Marsieno and/or Alongi. Although counsel does note that such evidence was
admitted only against the other defendant(s), it is clearly irrelevant in determining if the
evidence admitted against Kamienski was sufficient. Moreover, including such evidence
in the brief is both unhelpful and misleading as only Kamienski’s appeal is before us.
Counsel for the government has consistently either misunderstood or ignored the
limitations and propriety of including such evidence responding to Kamienski’s appeal.

                                            11
             Am I going to say does Paul Kamienski know that they're going to get
      killed? I don't think so. Not from the evidence and testimony that I've heard.
      Paul Kamienski is there because he is part and parcel, he put this drug deal
      together, he made it work, he was there.

             And you know what, Tony [Alongi] and Joe [Marsieno] they didn't
      have any money, but you know what they had, they had a gun and they killed
      the DeTournays. They murdered them. They murdered them in cold blood.
      And Kamienski was there and that didn't end the murder, a bullet through the
      chest or through the head did not end a murder, a murder is finished and the
      murder ended when that body is disposed of. And I submit to you that's what
      occurred at that point in time was that Paul Kamienski assisted Marzeno and
      Alongi in getting rid of the bodies. That he assisted, he helped, he rendered
      his countenance to that in getting rid of the bodies. He was there. He
      never-I'll say this, he never expected it to happen, he didn't expect them to be
      murdered. He said that to Donna as soon as they got outside. I couldn't
      control the situation, but it happened. And he was there and he helped
      dispose of the bodies.

                                            ***

             ... I’ve indicated to you that I don’t think that Paul Kamienski - - I
      don’t think that [he] was a part of a conspiracy to murder those people, I
      think he very clearly was a part of the conspiracy, that second conspiracy to
      possess that cocaine with intent to distribute it.

(Emphasis added). The jury acquitted all defendants of the charges of conspiracy to

commit murder and conspiracy to commit robbery. However, the jury convicted the

defendants of felony murder, and conspiracy to possess cocaine with the intent to

distribute. Marsieno was found guilty, as the principal actor, of murder in the first

degree. Kamienski and Alongi were found guilty as accomplices to murder in the first

degree.

       Thereafter, the trial court granted post-verdict motions filed by Kamienski and



                                             12
Alongi in which they each requested judgments of acquittal on the murder convictions, or

in the alternative, a new trial on those charges. During oral argument on those post-

verdict motions the prosecutor agreed with the following statement by the trial court:

“prior to the afternoon of the 19th there was nothing suggesting that [Kamienski] knew of

and agreed to assist in or conspired to commit a robbery or a murder . . . [a]nd the jury so

found.” Accordingly, the district court granted Kamienski’s motion for judgment of

acquittal on the murder charges.

       The court reasoned that since the jury acquitted Kamienski on the conspiracies to

rob and murder, the state was required to show some evidence of Kamienski’s conduct

before, during or after the murders to establish his guilt as an accomplice to the murders.10

However, the court concluded that there was insufficient evidence to convict Kamienski

of accomplice liability for either murder or felony murder. In reaching that decision, the

court expressed concern about portions of the jury charge on accomplice liability.

However, the court held that it could not order a new trial based upon the purportedly

erroneous jury charge because the state had not produced sufficient evidence to establish

Kamienski’s guilt for murder or felony murder. Thus, the court entered a judgment of

acquittal on those charges in favor of Kamienski.

       The state appealed, and the Appellate Division reversed and reinstated



       10
         The prosecutor agreed that disposing of the bodies after the fact, absent
something more, was not sufficient for accomplice liability for murder thereby retreating
from the “continuing crime” of murder theory that he had argued to the jury.

                                             13
Kamienski’s murder convictions. The Appellate Division found no error in the jury

charges and concluded: “where a jury is instructed properly, an acquittal under a theory of

conspiracy does not as a matter of law preclude a conviction as an accomplice.” 11 State v.

Kamienski, 603 A.2d 78, 80 (N.J. Super. Ct. App. Div. 1992). The Appellate Division

believed that the evidence was sufficient to convict Kamienski of accomplice murder

and/or felony murder, and it therefore reinstated Kamienski’s murder convictions. Id.

89-95. Thereafter, the New Jersey Supreme Court refused Kamienski’s application for

review of the decision of the Appellate Division.

       After exhausting his state remedies, Kamienski filed a timely petition under 28

U.S.C. § 2254 in the United States District Court for the District of New Jersey. He

challenged his murder convictions on several grounds, including the sufficiency of the

evidence. The district court denied the petition because it did not believe that the New

Jersey Appellate Division’s holding was an unreasonable application of federal law under

AEDPA. It explained: “[a]s set forth in the Appellate Division’s discussion, there is

evidence from which a reasonable jury could have found efforts by Kamienski to

facilitate the robbery and murder.”




       11
         The Appellate Division believed that the trial court granted Kamienski’s motion
for a judgment of acquittal because the jury verdict was inconsistent. However, the court
did not grant relief because of inconsistent verdicts (which are allowed); rather, the trial
court granted judgment of acquittal based upon its conclusion that the prosecution had not
produced sufficient evidence to establish Kamienski’s guilt on those charges beyond a
reasonable doubt.

                                            14
       Thereafter, the District Court granted a certificate of appealability “on the question

of whether [Kamienski’s] criminal conviction was based on legally insufficient evidence

in violation of [Kamienski’s] rights under the Due Process Clause of the Fourteenth

Amendment to the United States Constitution.” 12

       Accordingly, we are presented with the single claim: whether Kamienski’s murder

convictions are supported by sufficient evidence. Kamienski’s primary argument is that

his murder convictions should be vacated under § 2254(d)(1) because the “evidence failed

to prove all the required actus reus or mens rea elements of these offenses beyond a

reasonable doubt.” 13

                                   III. Standard of Review

       We review de novo a district court’s grant or denial of a petition for a writ of

habeas corpus. Pazden v. Maurer, 424 F.3d 303, 310 (3d Cir. 2005). However, like the

district court, our review is circumscribed by the Antiterrorism and Effective Death

Penalty Act (“AEDPA”). Under AEDPA:

       (d) An application for a writ of habeas corpus on behalf of a person in
       custody pursuant to the judgment of a State court shall not be granted with
       respect to any claim that was adjudicated on the merits in State court
       proceedings unless the adjudication of the claim—
       (1) resulted in a decision that was contrary to, or involved an unreasonable


       12
            Additional motions followed that are not relevant to this appeal.
       13
          Kamienski makes an alternative argument that his petition should be granted
under 28 U.S.C. §§ 2254(d)(2) and (e)(1) because the appellate court’s fact finding
conclusions were unreasonable and clearly erroneous. Because we find that Kamienski’s
petition should be granted based on his first argument, we need not reach the second.

                                               15
       application of, clearly established Federal law, as determined by the
       Supreme Court of the United States . . . .

28 U.S.C. § 2254(d)(1). “A state-court decision is ‘contrary to’ clearly established federal

law if the state court (1) ‘contradicts the governing law set forth in [the Supreme] Court’s

cases’ or (2) ‘confronts a set of facts that are materially indistinguishable from a decision

of [the Supreme] Court and nevertheless arrives at a [different] result.’” Lambert v.

Blackwell, 387 F.3d 210, 234 (3d Cir. 2004) (quoting Williams v. Taylor, 529 U.S. 362,

405-06 (2000)). On the other hand, “[a] state-court decision ‘involve[s] an unreasonable

application’ of clearly established federal law if the state court (1) ‘identifies the correct

governing legal rule from [the Supreme] Court’s cases but unreasonably applies it to the

facts of the particular . . . case’; or (2) ‘unreasonably extends a legal principle from

[Supreme Court] precedent to a new context where it should not apply or unreasonably

refuses to extend that principle to a new context where it should apply.’” Id. at 234

(quoting Williams, 529 U.S. at 407). “[A]n unreasonable application of federal law is

different from an incorrect application of federal law.” Williams, 529 U.S. at 410

(emphasis in original). Thus, habeas relief requires not only a determination that the state

court decision on the merits applied clearly established federal law erroneously or

incorrectly, but also that the state court’s application was unreasonable. Id. at 411; see

also Waddington v. Sarausad, 129 S.Ct. 823, 831 (2009).

       Kamienski argues that the state court unreasonably applied Jackson v.Virginia’s

constitutional requirement that every element of a crime be established beyond a

                                              16
reasonable doubt. 443 U.S. 307, 316 (1979) (“Winship presupposes as an essential of the

due process guaranteed by the Fourteenth Amendment that no person shall be made to

suffer the onus of a criminal conviction except upon sufficient proof - defined as evidence

necessary to convince a trier of fact beyond a reasonable doubt of the existence of every

element of the offense.”). A conviction will withstand a challenge under Jackson if,

when “viewing the evidence [in the light] most [favorable] to the government, there is

substantial evidence to support the jury’s guilty verdict.” United States v. Wexler, 838

F.2d 88, 90 (3d Cir. 1988);

       In a habeas proceeding, however, we do not simply conduct a de novo review of

the state court’s application of that rule. Rather, we must review its sufficiency-of-the-

evidence decision under the highly deferential standard of AEDPA. Our task, therefore,

is to determine whether, viewing the evidence in the light most favorable to the state, it

was objectively unreasonable for the Appellate Division to conclude that a rational trier

of fact could have found, beyond a reasonable doubt, that Kamienski was guilty of felony

murder or first-degree murder.

                                      IV. Discussion.

       The New Jersey Code defines felony murder as follows:

        criminal homicide constitutes murder when . . . (3) It is committed when
        the actor, acting either alone or with one or more other persons, is engaged
        in the commission of, or an attempt to commit, or flight after committing
        or attempting to commit robbery, sexual assault, arson, burglary,
        kidnapping, carjacking, criminal escape or terrorism . . . . and in the course
        of such crime or of immediate flight therefrom, any person causes the

                                              17
        death of a person other than one of the participants

N.J.S.A. 2C:11-3(a)(3). Here, the state’s theory was that all three defendants were guilty

of felony murder because the killings occurred in the course of a robbery. A killing in the

course of a drug deal would not qualify as felony murder under New Jersey’s statute,

because distribution of illegal drugs is not one of the predicate felonies listed in the New

Jersey statute defining felony murder. Thus, for Kamienski to have been guilty of felony

murder, the state had to produce sufficient evidence to allow a reasonable juror to

conclude beyond a reasonable doubt that he knowingly participated or aided in the

commission of a robbery.

       The state also charged Kamienski and Alongi with first degree murder based on

their roles as Marsieno’s accomplices. Under N.J.S.A. 2C11-3a, first-degree murder

occurs when “the actor purposely causes death . . . . or . . . [t]he actor knowingly causes

death.” “Purposely” is defined as follows:

       A person acts purposely with respect to the nature of his conduct or a result
       thereof if it is his conscious object to engage in conduct of that nature or to
       cause such a result. A person acts purposely with respect to attendant
       circumstances if he is aware of the existence of such circumstances or he
       believes or hopes that they exist.

N.J.S.A. 2C:2-2. “A person acts knowingly with respect to the nature of his conduct or

the attendant circumstances if he is aware that his conduct is of that nature, or that such

circumstances exist, or he is aware of a high probability of their existence. A person acts

knowingly with respect to a result of his conduct if he is aware that it is practically certain



                                              18
that his conduct will cause such a result.” N.J.S.A. 2C2-2b(2).

       The New Jersey Crimes Code specifies that “a person is legally accountable for the

conduct of another person when . . . he is an accomplice of such other person in the

commission of an offense.” N.J.S.A. 2C:2-6(b)(3).

       A person is an accomplice of another person in the commission of an
       offense if: (1) With the purpose of promoting or facilitating the commission
       of the offense; he (a) Solicits such other person to commit it; (b) Aids or
       agrees or attempts to aid such other person in planning or committing it. . . .

N.J.S.A. 2C2-6(c). New Jersey’s Supreme Court has instructed that “[f]or both the

accomplice and his partner to be guilty, ‘it is essential that they shared in the intent which

is the crime’s basic element.” State v. White, 484 A.2d 691, 695 (N.J. 1984); see also

State v. Torres, 874 A.2d 1084, 1092 (N.J. 2005). Thus, to find Kamienski guilty as an

accomplice to first-degree murder, the state must show that Kamienski shared the specific

intent to kill the DeTournays.

       The state has identified copious evidence that Kamienski was involved in the sale

of cocaine from the DeTournays to Marsieno and Alongi, and the government clearly

proved that he was, even though Kamienski testified in his own behalf and denied all

involvement. The jury clearly disbelieved his blanket denial, and the jury’s conclusion

that Kamienski brokered a cocaine sale between the DeTournays and Marsieno is

supported by overwhelming evidence.

       Kamienski introduced the DeTournays to Marsieno knowing they were looking for

a drug buyer, and he vouched for the actors involved in the transaction, and helped

                                              19
arrange the sale of cocaine. There is also more than sufficient evidence to allow the jury

to conclude that Kamienski was involved in disposing of the DeTournays’ bodies and

covering up their murders.14 However, the state has not identified any direct or

circumstantial evidence that would allow a reasonable jury to conclude that Kamienski

knew of Marsieno’s intent to rob and/or murder the DeTournays before Marsieno shot

them. Moreover, there is nothing other than rank speculation to suggest that he shared

Marsieno’s intent to rob and/or murder the DeTournays.

       As noted above, the state’s murder theory against Kamienski had been based on

some abstract notion that the crime of murder is a continuing offense that includes

attempts to dispose of the victim’s body. That is a theory that is as unique as it is baseless

and the state has not pursued it on appeal. Rather, the state now argues that the evidence

was sufficient to prove that Kamienski knew of Marsieno’s plans to kill the DeTournays

and that he assisted by ensuring that Duckworth was not a witness to the crime.

       Deference to a jury verdict, even under AEDPA’s deferential standard, does not

allow rank speculation to substitute for proof beyond a reasonable doubt. Ironically, the

prosecutor’s closing argument to the jury and post trial representations to the court are the

most accurate assessment of the evidence the government produced at trial. The

prosecutor who tried this case candidly conceded that the state had not proven either the




       14
          The state did not charge Kamienski with being an accessory-after-the-fact for his
role in hiding the DeTournays’ murder, nor was he charged with obstruction of justice.

                                             20
murder or felony murder charge against Kamienski, and we agree.

       As noted earlier, the prosecutor told the jury in closing:

               Am I going to say does Paul Kamienski knew that they're going to
       get killed? I don't think so. Not from the evidence and testimony that I've
       heard. Paul Kamienski is there because he is part and parcel, he put this
       drug deal together, he made it work, he was there.
                                              ***
       He was there. He never-I'll say this, he never expected it to happen, he
       didn't expect them to be murdered. . . . but it happened. And he was there
       and he helped dispose of the bodies.
                                              ***
               I’ve indicated to you that I don’t think that Paul Kamienski - - I don’t
       think that [he] was a part of a conspiracy to murder those people, I think he
       very clearly was a part of the conspiracy, that second conspiracy to possess
       that cocaine with intent to distribute it.


       The prosecutor made a similar remark to the court while opposing Kamienski’s

motion for a judgment of acquittal or a new trial. He agreed with the judge’s observation

that: “prior to the afternoon of the 19th there was nothing suggesting that [Kamienski]

knew of and agreed to assist in or conspired to commit a robbery or a murder . . . [a]nd

the jury so found.”

       This case is therefore a bit of a paradox. While arguing for a conviction of first

degree murder and felony murder, the prosecutor conceded that the evidence did not

establish that Kamienski had the mental state required for a conviction of first degree

murder or that he had the knowledge required for a conviction of felony murder.15 The



       15
        It is not clear whether these admissions rise to the level of a judicial estoppel that
would now preclude the government from taking a contrary litigation stance and now

                                             21
trial judge who saw all of the witnesses and heard their testimony agreed that the

government had not proven either charge beyond a reasonable doubt and entered a

judgement of acquittal for Kamienski on both of those charges. Although the Appellate

Division subsequently reinstated those convictions, our examination of this record

convinces us that the Appellate Division’s decision was an unreasonable application of

clearly established Supreme Court precedent requiring proof of each element of a crime

beyond a reasonable doubt.

       We realize that “[i]nferences from established facts are accepted methods of proof

when no direct evidence is available. It is [nevertheless] essential . . . that there be a

logical and convincing connection between the facts established and the conclusion

inferred.” United States v. Bycer, 593 F.2d 549, 550 (3d Cir. 1979). When we asked the

state to provide a supplemental brief on appeal identifying the evidence from which a jury

could reasonably find Kamienski’s shared intent to rob and/or murder (or assist in those

crimes) the state repeatedly directed us to evidence showing his complicity in the drug

deal or evidence showing his involvement in the disposal of the bodies after the murders




insisting that its evidence established Kamienski was guilty of murder and felony murder
beyond a reasonable doubt. See Ryan Operations G.P. v. Santiam-Midwest Lumber Co.,
81 F.3d 355, 358 (3d Cir. 1996) (“The basic principle of judicial estoppel . . . is that
absent any good explanation, a party should not be allowed to gain an advantage by
litigation on one theory, and then seek an inconsistent advantage by pursuing an
incompatible theory.”). However, since Kamienski does not claim that the government’s
prior concession precludes it from arguing that the evidence was sufficient to convict
Kamienski of murder and felony murder on appeal, we need not explore that issue.

                                              22
had been committed. Neither is sufficient to sustain Kamienski’s murder convictions.

       At argument before us, the state stressed that Kamienski had sequestered

Duckworth on the day the drug deal was to be struck and invited us to connect dots that

would reveal a picture of his knowledge of the robbery Marsieno was apparently planning

and Kamienski’s shared intent to kill the DeTournays. However, based on our review of

the evidence, the picture is simply not there and its existence can not be inferred absent

the kind of guesswork that due process prohibits. Indeed, we can not accept the state’s

view of the evidence without choking all vitality from the requirement of proof beyond a

reasonable doubt.

       The government’s arguments to the contrary rely not on inferences but on

speculation. Although Kamienski and Duckworth had used cocaine together in the past,

jurors must speculate to conclude that Kamienski’s attempts to remove her from the scene

of a very substantial cocaine deal on September 19th suggest anything more than his

reluctance to have her witness the only major cocaine transaction he was involved in

during their relationship (at least there was no evidence of any other large cocaine

transaction).16 “[I]f the evidence tends to give equal or nearly equal circumstantial



       16
         We note that the state must rely on an inference to even place Kamienski at the
scene when the shootings took place. At trial and on appeal, the argument was that
because Kamienski took the unusual step of separating himself from Duckworth at the
time designated for the drug deal and because he later told her that he “couldn’t control
what happened,” he must have witnessed the shootings. While the use of inference to
conclude Kamienski was present when the DeTournays were shot is permissible, the state
must show more than presence to convict for murder.

                                             23
support to guilt and to innocence . . . reversal is required: When the evidence is essentially

in balance, a reasonable jury must necessarily entertain a reasonable doubt.” See United

States v. Ortega Reyna, 148 F.3d 540, 543 (5th Cir. 1998) (internal quotation marks and

citations omitted); see also United States v. Wexler, 838 F.2d 88, 92 (3d Cir. 1988)

(vacating conviction for conspiracy to transport hashish where “the evidence is just as

consistent, for example, with a conspiracy to transport stolen goods, an entirely different

crime”).

       This record does not contain evidence that would allow an inference that

Kamienski purposely or knowingly assisted Marsieno in killing the DeTournays.

Marsieno was clearly the “trigger man,” and there is nothing to suggest that Kamienski

had any part in actually causing the DeTournays’ death or that he even knew that

Marsieno intended to bring a gun to the drug deal. Nor is there any evidence to support

an inference that Kamienski knew Marsieno had a gun and did not intend to pay for the

drugs he was trying to get from the DeTournays. Kamienski’s mere presence at a meeting

the night before in the bar of the Holiday Inn cannot supply that inference because there is

no evidence of the substance of the conversation among those involved in the drug

transaction. See United States v. Cooper, 567 F.2d 252, 254 (3d Cir. 1977) (vacating

conspiracy conviction where record contained no evidence to show defendant-passenger

knew contents of locked trunk compartment contained marijuana). Although Marsieno

had the briefcase containing a gun and no cash when Jeanne Yurcisin picked him up from



                                             24
the bar that night at 8:00 pm, there is nothing to support an inference that Kamienski

knew that Marsieno was only bringing a gun and no cash. Jeffrey, the drug courier,

testified that he was told by the DeTournays on the 18th that the people buying the

cocaine were “still getting their money together.” To the extent Kamienski was involved

in the actual exchange, the evidence only allows an inference that Kamienski believed,

like the DeTournays, that Marsieno intended to pay for the cocaine he was to buy the next

day.

         We realize, of course, that Kamienski received cocaine from Marsieno at no

charge after the murders. The government argues that this should be viewed as “hush

money,” a reward for Kamienski’s involvement in the murders, or payment of his share of

the robbery proceeds. However, even if the jury inferred that the cocaine was given to

buy Kamienski’s silence, it would still not establish knowledge of a robbery or murder

before Marsieno killed the DeTournays. Following the killings, Marsieno had every

reason to keep Kamienski happy and quiet, and the record can not be stretched to infer

that Marsieno’s gifts of cocaine to Kamienski reflect anything more. See Ortega Reyna,

supra.

         We realize, of course, that each strand of evidence need not establish guilt beyond

a reasonable doubt, nor even support an inference of guilt by itself. Rather, we must view

each strand as it is connected to the whole and determine if the totality of evidence,

viewed in the light most favorable to the government, establishes guilt beyond a



                                              25
reasonable doubt. Nevertheless, the web of evidence the government produced here

simply does not allow a reasonable juror to conclude that Kamienski was guilty of murder

or felony murder beyond a reasonable doubt. To paraphrase the prosecutor at trial,

Kamienski “was [not] part of a conspiracy to murder these people. [The evidence does

establish] very clearly [that] he was a part of the . . . conspiracy to possess . . . cocaine

with intent to distribute it,” but that is all he should have been convicted of.

       Accordingly, we are convinced that the Appellate Division’s conclusion regarding

the sufficiency of the evidence underlying Kamienski’s convictions was erroneous; the

more difficult question is whether it was also “unreasonable” under AEDPA.17 Although

the sufficiency question is legal one, the answer requires close scrutiny of the record and

an assessment of the evidence produced for each offense of conviction and for each

defendant. As we have noted, there was more than ample evidence of Kamienski’s role




       17
          It is not clear whether the Appellate Division’s conclusion that the state
produced sufficient evidence to convict Kamienski of murder and felony, was merely
dicta and therefore not entitled to AEDPA deference. The court stated: “[t]hese appeals
raise two significant issues: (1) . . . voir dire . . . and (2) whether an acquittal on a
conspiracy to rob and to murder precluded a conviction on those substantive offenses as
an accomplice.” 603 A.2d at 80. However, after summarizing the government’s evidence
(as set forth above), the court concluded that: “[t]he jury could have believed that
although Kamienski was not part of an agreement or conspiracy to rob the DeTournays . .
. or to murder them, he did purposefully lend assistance and aid to Marzeno in the
commission of the robbery and murders. It was up to the jury to determine the meaning
and significance of Kamienski’s conduct.” Id. at 93. Accordingly, since the state court
opined that the evidence was sufficient to convict Kamienski of murder and felony
murder, we will assume arguendo that its conclusion is entitled to AEDPA deference
whether or not the conclusion was an actual “decision on the merits,” or mere dicta.

                                               26
in brokering a drug transaction. However, the Appellate Division conflated that proof

into its inquiry into evidence of murder and felony murder. Doing so was not only error,

it was unreasonable; it allowed Kamienski to be convicted on something less than proof

of “every element of the offense” of conviction beyond a reasonable doubt. Jackson, 443

U.S. at 316 (discussing Winship).

       The Appellate Division also unreasonably applied the standard governing when

inferences may be relied upon to establish elements of a criminal offense beyond a

reasonable doubt. That standard requires that the inference in question must be “more

likely than not to flow” from the facts already established. Leary v. United States, 395

U.S. 6, 36 (1969). The “more likely than not standard” is well established. It cannot be

satisfied here because the record simply does not allow a reasonable juror to infer that

Kamienski intended that the DeTournays be robbed or killed. Thus, the district court

erred in concluding that the state court’s decision to reinstate Kamienski’s convictions for

murder and felony murder was a reasonable application of Supreme Court precedent to

the facts of this case.

                                       V. Conclusion

       Accordingly, for all the reasons we have set forth above, we will reverse the

district court’s order denying habeas relief and remand to that court for it to issue the writ.




                                              27
