UNITED STATES CO URT OF APPEALS FOR THE TENTH CIRCUIT

UNITED STATES OF AMERICA, Plaintiff-Appellee,

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

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 Ka nsas. The district court se ntenced 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 relie f. He contends that he received

* This order is not binding precedent, except under the doctrines of law of the case, res judicata, and colla teral estoppel. It may be cited, however, for its persuasive value consistent with Fed. R App. P. 32. 1 and 10th Cir. R. 32.1. FILED United States Court of Appeals Tenth Circuit 

### June 19, 2012
Elisabeth A. Shumaker Clerk of Court- 2 - 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 deta il 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 brie f summary. Kaufman, a doctor of social work, and his wife owned and operated the Kaufman House Residential Care Treatm ent 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, aut horities initiated an investigation of the Center. “They learne d that, over a period of more than fifteen years, the Kaufmans had dir ected the severely mentally ill residents . . . to perform sexually explicit acts and farm labor in th e nude while maintaining that these acts constituted legitimate psyc hotherapy for the residents’ mental illnesses.” Id. at 1246. Execution of a search warrant uncovered seventy-eight videot apes in Kaufman’s bedroom, many showing resident s engaged in graphic sex ac ts directed and filmed by Kaufman. “In several instan ces, the tapes show Dr. Kauf man touching the genitals of some of the residents (two women and a man).” Id . at 1249.- 3 - At trial, the prosecution played some of the tapes for the jury and offered testimony from some of the re sidents who appeared on the tapes. Additionally, two psychiatrists, a psychologist, and a soci al worker testified that there was no therapeutic justification for the nudity and sex acts sugge sted by Kaufman; indeed, they testified that the act s were quite harmful. Th ere was also evidence that Kaufman used physical force against resi dents, 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 th at the Kaufmans had restricted the information they could give to medical and law-enforcement personnel. Kaufman testified in his own defense, asserting that re sidents voluntarily engaged in nudity and the videotaped sex ac ts. He maintained that sexual behavior was appropriate for the residents and he lpful in preventing improper behavior. As the jury began its deliberations, it was provided the videotapes admitted into evidence, along with a V CR and television “in the event that the jury wanted to view the videotapes.” Aplt. Br. at 15. Af ter deliberating for nearly seventeen hours, the jury returned guilty verdicts. Kaufman’s convictions a nd sentence were affirmed on direct appeal. The district court denied § 2255 relief in a thorough and well-re asoned decision. Kaufman now seeks a COA to perfect an appeal from that decision.- 4 - Discussion I. Standards of Review “The issuance of a COA is a jurisdicti onal 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, Ka ufman must demonstrate that “reasonable jurists could deba te whether (or, for that ma tter, agree that) the petition should have been resolved in a different manner or that the is sues presented were adequate to deserve encourag ement 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 reasonablen ess, and that he su ffered prejudice as a result. Id . at 688, 694. Our review of counsel’ s performance is hi ghly deferential; the petitioner must overcome the presumpt ion that, “under the circumstances, the challenged action might be consid ered 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.- 5 - II. Conduct of Counsel Kaufman posits five grounds for c oncluding 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 we re not played in open court. He contends that lack of an objection violated his “right to be present at every stag e of the criminal proceeding,” Aplt. Br. at 30, and is presum ptively prejudicial. The district court disagreed, stating that Kaufman considered the tapes to be evidence demonstrating the legitimacy of his therapy methods, and th at 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 vol untary behavior. Kaufman does not indicate whether the “unplayed tapes,” id. at 38, were inconsistent with such a strategy. And to the extent Kaufman object s to the use of such a strategy, he has not shown that it was unreas onable “considering all the ci rcumstances” 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 tria l counsel acted unreasonably in failing to foresee that his expert’s te stimony in support of his ther apy strategy would ultimately (continued)- 6 - But even if counsel’s failure to obj ect 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 tria l “the jury was so fed up” with watching tapes depicting residents’ se xual behavior that a juror “s ent 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 s hould presume prejudice, that case is not persuasive. Specifically, Noushfar involved tape recordings made by the government during an undercover investig ation. The Ninth Circuit held that giving the jury access to tapes that had not been played in the courtroom constitu ted structural error because it was “akin to allowing a new witn ess to testify privately, without crossexamination, to the jury during its deliberations.” Id. at 1445. But here, it was the defendant who made the recordings, and he ti ed 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 [t he expert’s] testimony until mid-trial.” Aplt. Br. at 42. And even if the government alerted counsel before trial that it would seek to excl ude 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 s hould have objected to the videotapes that were played at trial as irrelevant, prejudicial, and cu mulative. He contends that (continued)- 7 - B. The “No Eye Contact” Order Prior to trial, the distri ct judge ordered the Kaufmans to avoid any contact with the victims during trial, including, “to the ex tent 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 d eal with complaints that defendants [were] trying to influence or in timidate victims thro ugh 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 th e no-eye-contact order” without making particularized findings. Id. at 1255-56. We then conc luded that, “even assuming that the district court plainly erred, . . . the Kaufmans have not es tablished the prejudice required to obtain relief under th e plain error analysis.” Id . at 1257. In the § 2255 proceedings below, Kauf man argued that his trial counsel was ineffective for not objecting. The distri ct court disagreed, citing this court’s lack-of-prejudice conclusion as supporting it s own conclusion that counsel’s failure

the tapes “do not shed much light” on the gove rnment’s charges, Ap lt. Br. at 52, that testimony describing the reside nts’ 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 determin ed that counsel’s failure to object was not ineffective as sistance, reasoning that an objection would have, for the most part, failed because th e tapes were highly probative a nd not unfairly prejudicial. We agree. The government was entitled to make its case using the videotapes. Even if defense counsel had object ed 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 out come of the case.- 8 - 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. Specifica lly, had there been an unsuccessful trial objection, and had this court on direct a ppeal 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 pl ain-error review, it was Kaufman’s burden to de monstrate prejudice. Id. Nevertheless, we disagree with Kauf man’s basic premis e 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 overwhe lming. In addition to the videotapes admitted at trial, residents of the Center and mental-hea lth experts offered detailed testimony in support of the ch arges against Kaufman. We conclude that the district court’s decision that Kaufman is not entitled to relief ba sed on counsel’s failure to object to the “no eye contact ” order is not debatable. C. Closing Argument Kaufman also contends that trial c ounsel provided ineffective assistance during closing arguments by not objecting to (1) the pros ecutor’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 th e prosecution vouched for the credibility of its witn esses. Because he has pr ovided 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).- 9 - rejected the first contention on the grounds that it had instruct ed 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 contenti on, that the prosecutor accused the Kaufmans of being liars wi thout objection by defense c ounsel, the district court stated that the eviden ce showed that they had, in fa ct, lied. Thus, it would have overruled an objection. Indeed, “it is perm issible for the prosec ution to comment on the veracity of a defendant’s story . . . on account of irreconc ilable discrepancies between the defendant’s testimony a nd other evidence in the case.” Bland v.
Sirmons , 459 F.3d 999, 1025 (10th Cir. 2006). Kaufman has not demonstrated that an objection by defe nse 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 Ineffectiv e Assistance of Counsel Kaufman argues that “the cumulative e ffect 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 Ka ufman’s individual claims of ineffective assistance of counsel, we canno t hold that the cumula tive effect of his- 10 - counsel’s conduct was none theless ineffective. See Bunton v. Atherton , 613 F.3d 973, 990 (10th Cir. 2010) ( observing that “the cumula tive error doctrine does not apply [w]here . . . we have not found the existence of tw o or more actual errors”). III. Evidentiary Hearing Insofar as Kaufman suggests that th e 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 conclu sively show that the prisone r 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 th at the district court properly denied Kaufman relief under 28 U.S.C. § 2255. A ccordingly, Kaufman’s application for a COA is DENIED, and this appeal is DISMISSED.

Entered for the Court

ELISABETH A. SHUMAKER, Clerk