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Bierenbaum v. Graham

May 25, 2010



Appeal from the denial of a petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254 by the United States District Court for the Southern District of New York (Sweet, J.). Petitioner-Appellant Robert Bierenbaum argues that his trial counsel rendered ineffective assistance in violation of the Sixth Amendment, and that out-of-court statements were admitted at trial in violation of the Confrontation Clause of the Sixth Amendment.


The opinion of the court was delivered by: Sessions, District Judge

Argued: July 8, 2009

Before CALABRESI, HALL, Circuit Judges, SESSIONS,*fn1 District Judge

CALABRESI, Circuit Judge, filed a concurring opinion.

Petitioner-Appellant Robert Bierenbaum was convicted after a jury trial of murder in the second degree, see N.Y. Penal Law § 125.25[1], and sentenced to a term of imprisonment of twenty years to life. Currently incarcerated, Bierenbaum appeals from the February 26, 2008 judgment of the United States District Court for the Southern District of New York (Sweet, J.) that denied his petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. See Bierenbaum v. Graham, No. 06 Civ. 2120, 2008 WL 515035 (S.D.N.Y. Feb. 25, 2008).

Bierenbaum claims that he was denied his Sixth Amendment right to effective assistance of counsel at trial, and that the admission at trial of numerous out-of-court statements made by the victim violated the Confrontation Clause of the Sixth Amendment. We affirm.


Bierenbaum's wife, Gail Katz Bierenbaum, was last seen on July 7, 1985. Her body was never found. In 1999 Bierenbaum was indicted and charged with murder in the second degree in her death. After an eight-day trial by jury in October 2000 before the Honorable Leslie Crocker Snyder in the Supreme Court of the State of New York, County of New York, the jury returned a verdict of guilty to the charge. Bierenbaum was sentenced on November 29, 2000.

A. The Disappearance of Gail Katz Bierenbaum

Gail Katz and Robert Bierenbaum were married in August 1982. They resided in a twelfth-floor apartment on East 85th Street in Manhattan. Bierenbaum had graduated from medical school in 1978, and was a surgical resident at Maimonides Medical Center in Brooklyn, New York. Katz was a graduate student pursuing a Ph.D. degree in clinical psychology at Long Island University.

On Saturday, July 6, 1985, Katz kept a follow-up appointment with her gynecologist, and made a further appointment in December. She kept an appointment with her hairdresser, and met with a close friend that afternoon for a couple of hours. She told her friend that she was going to leave her husband that weekend, and that she was looking for another place to live.

On the evening of Sunday, July 7, 1985, Bierenbaum attended a family gathering for a nephew's birthday in New Jersey, without Katz. Bierenbaum said that she had gone out earlier in the day and had not returned to their apartment. Although Bierenbaum did not express any concern about his wife at the party, later that evening at a friend's house he appeared distraught and called the apartment a couple of times. To his friend he related that he and Katz had an argument that morning and that she had left the apartment to sunbathe in Central Park wearing shorts, sandals and a halter top.

Close to midnight that evening Bierenbaum telephoned Dr. Yvette Feis, one of Katz's friends, asking if she knew where Katz was. Bierenbaum told Feis that they had had an argument, that she had gone to Central Park and not returned, and that she was still missing when he returned from a family party in New Jersey.

Katz did not keep her regularly scheduled psychotherapy appointment on July 8. Bierenbaum called her therapist and others on that day asking if they had seen her. That evening Bierenbaum filed a missing persons report indicating that when Katz was last seen she was wearing pink shorts and a white t-shirt. He told the detective assigned to investigate the case that he had last seen his wife on July 7 at approximately 11 a.m., and that she had left the apartment to get some sun in Central Park. He told the detective that he remained at home until approximately 5:30 p.m., when he left for New Jersey.

No one, other than Bierenbaum, reported seeing Katz after July 6.

B. Investigation

Detective Virgilio Dalsass from the 19th precinct, where Bierenbaum and Katz resided, and Detective Thomas O'Malley from the Missing Persons Bureau were assigned to investigate the case. In the week after Katz was reported missing, Dalsass left several telephone messages for Bierenbaum, none of which were returned. Dalsass had numerous telephone calls from members of Katz's family during that same time period. On July 14, Dalsass met with Bierenbaum, his father and Katz's parents. Dalsass asked Bierenbaum to narrate specifically and exactly how he spent the weekend that Katz disappeared. Bierenbaum stated that he had come home from work at approximately 5 p.m. on Friday evening, that they went to a movie about 8 p.m. and returned about midnight. He described going to work Saturday morning, leaving the hospital and visiting his father, returning home around noon to go out to eat and do some shopping with his wife, including buying bras at a lingerie store and cat food at a pet supply store. Katz cooked steaks that night and they had a romantic candlelight dinner.

Bierenbaum told Dalsass that he had awakened at approximately 9:30 Sunday morning, that Katz had received a telephone call from an acquaintance that disappointed her, and that she left at about 11 a.m. after an argument, telling him that she intended to go to Central Park to get some sun. Bierenbaum repeated that he had remained in the apartment all day until 5:30 p.m., when he left for the family party in New Jersey, arriving there at approximately 6:30 p.m. He returned from New Jersey at approximately midnight. He called Katz's mother to see if she had heard from Katz, and went to bed. The next morning he went to work, and that evening reported Katz missing.

The police searched for Katz between her apartment and Central Park and found no trace of her. Friends and family posted pictures of Katz in the neighborhood. Dalsass contacted several individuals whose names he had obtained from Bierenbaum or Katz's family who might have information about Katz. These included Ellen Schwartz, Francesca Beale, Katz's therapist Dr. Sybil Baran, Anthony Segalas and Kenneth Feiner.

Bierenbaum had contacted O'Malley on July 10 to inquire about the progress of the investigation. He advised O'Malley that their building doorman, Edgar, had seen Katz leave at about 11 a.m. on July 7. O'Malley met with Bierenbaum on the 13th and requested details of the previous weekend. Bierenbaum told O'Malley that he and Katz had a mild argument Friday night which continued on Saturday, whereupon Katz told him that she was going to Central Park to cool off at about 11 a.m. Bierenbaum said that he had spent some time at the apartment waiting for Katz to return, but then left at some point to visit his family in New Jersey. He said that he had called Katz's mother and two of her friends to see if she was there. When O'Malley asked him why he waited until the evening of the following day to report Katz missing, Bierenbaum stated that he felt she would return, and when she didn't friends advised him to notify the police. During their second conversation, Bierenbaum told O'Malley that he had been mistaken and that the doorman thought it was another day that he had seen Katz.

Bierenbaum told O'Malley that the marriage was in bad shape and that both of them were in therapy to attempt to improve their relationship. He told O'Malley that Katz was depressed and suicidal. O'Malley asked if Bierenbaum had ever hit his wife. Bierenbaum said no. O'Malley asked if he had ever choked his wife to the point of unconsciousness, and Bierenbaum said that he didn't want to speak about that.

In July, early in the investigation, Dalsass asked Bierenbaum if he could look around the apartment. Bierenbaum said he would get back to him, but did not. In September Dalsass finally secured permission to search Bierenbaum's apartment. Bierenbaum's attorney gave permission for the police to search for fingerprints and anything that might help them identify Katz. Although the police wished to search for any evidence that would shed light on Katz's disappearance, the investigators felt they did not have probable cause to obtain a search warrant. The search was thus limited to the scope of the permission given. This limited search was conducted on September 30; nevertheless at that time Dalsass looked around the apartment to see if he could detect any evidence that a crime had been committed there. He did not find anything.

In September 1986 Hope Martin, an investigator from the District Attorney's office, was assigned to investigate Katz's disappearance. Martin learned that Bierenbaum was a licensed pilot. She wanted to know whether Bierenbaum had flown an airplane on the day of his wife's disappearance. On October 17, 1986 she learned that Bierenbaum had rented an airplane from Mac Dan Aircraft Rental at Caldwell Airport in Fairfield, New Jersey on July 7, 1985, the day Katz disappeared. A forensic examination of the aircraft yielded no results. Forensic tests of two automobiles that Bierenbaum was driving at the time also yielded no results.

The investigation was closed in April 1987. In May 1989 a torso found washed up on a beach in Staten Island was determined by x-ray comparison to be Katz. In 1998 the investigation was reopened, and the body was exhumed and determined by DNA comparison not to be Katz. Bierenbaum was charged with murder in the second degree in an indictment returned December 8, 1999.

C. The Evidence at Trial

In addition to the evidence detailed above, the prosecution marshaled a wealth of circumstantial evidence that, in the words of the Appellate Division, "when . . . attentively review[ed] and critically assesse[d] . . ., and after applying all natural and reasonable inferences," led to the "inescapable" conclusion that Bierenbaum murdered his wife on July 7, 1985, "and the evidence excludes beyond a reasonable doubt any reasonable hypothesis of innocence." People v. Bierenbaum, 748 N.Y.S.2d 563, 574 (N.Y. App. Div. 2002).The evidence at trial was set forth in detail in the district court's February 25, 2008 opinion, and we recount below only the evidence necessary to resolve the issues presented on appeal.

1. Katz's statements

Over defense objection eleven witnesses--friends, relatives, colleagues and Katz's therapist--were permitted to testify about conversations they had with Katz between 1983 and 1985 in which she talked about the state of her marriage, her fear of Bierenbaum's temper, his controlling behavior, his threats, and an argument in 1983 during which he choked her to the point of unconsciousness. Certain of these witnesses also testified that Katz told them she had received a letter from Bierenbaum's therapist warning her that Bierenbaum was a danger to her, and that Katz intended to threaten Bierenbaum with disclosure of this letter. The trial court permitted this testimony as background evidence of the state of the marriage and Katz's state of mind, and Bierenbaum's motive, intent and identity. The trial court gave a limiting instruction to that effect after each witness's testimony and at the close of trial, and admonished the jury that they were not to take this testimony as proof that Bierenbaum had acted in accordance with the statements, or as evidence of propensity.

Hillard Wiese, Katz's cousin, testified that Katz reported to him in the fall of 1983 that she had an argument with her husband during which he had choked her to unconsciousness. This was not the first time Bierenbaum had choked her, but it was the first time that she lost consciousness. Wiese advised her to leave immediately. Katz moved out and lived for a time with her grandfather.

Alayne Katz, Katz's sister, testified that Katz had called her in the fall of 1983, extremely upset, and told her that her husband had tried to strangle her, that she lost consciousness, Bierenbaum revived her and apologized profusely. Alayne Katz testified that her sister told her about a letter she had received from Bierenbaum's psychiatrist warning her about Bierenbaum's potential for dangerousness and advising her to move out. She also testified that they had many times discussed Katz separating from her husband.

Dr. Leigh McCullough, Katz's employer in the fall of 1983, noticed bruises on Katz's neck one day. McCullough testified that Katz told her that her husband had gotten angry at her and choked her because she had been smoking a cigarette. Katz confided in McCullough that she was having difficulty in her marriage, and that she and Bierenbaum fought a lot.

Denise Kasenbaum, a friend, testified that Katz had told her there were problems in the marriage, incidents of violence, that Bierenbaum was very controlling, and that she was not happy. Katz recounted an incident when Bierenbaum discovered her smoking a cigarette, got very angry, came at her and choked her. Katz also told Kasenbaum that she had gotten a letter from Bierenbaum's psychiatrist. Kasenbaum testified that Katz told her she was having an affair with a colleague at a hospital where she was interning. Kasenbaum saw Katz on the day before she disappeared. Katz told her that she was looking for an apartment and that she was going to tell her husband that weekend that she was leaving.

Francesca Beale, a former employer, testified that in a telephone conversation in 1983, Katz said that her husband had a terrible temper, that she was afraid of him. Katz asked Beale if she could move in with her.

Maryann DeCesare, a friend, testified that Katz told her that she was afraid of Bierenbaum's temper and that he had threatened her. Katz told DeCesare that she had gone out on the terrace of their apartment to smoke a cigarette, where he confronted her and choked her.

Katz told DeCesare that she was unconscious, and that Bierenbaum had to call 9-1-1 for assistance. Often thereafter Katz would ask her for advice: would DeCesare leave her husband if he threatened to strangle her; had DeCesare's husband ever threatened to hurt her; should she leave Bierenbaum. DeCesare testified that Katz told her that Bierenbaum had threatened to kill her if she left him. In another conversation Katz told DeCesare that she and Bierenbaum had discussed the Claus von Bulow case, and that Bierenbaum had said the problem with the case was that von Bulow left evidence and that he would leave no evidence. A few days before she disappeared, Katz told DeCesare that she had met someone in whom she was interested, and she wondered if DeCesare thought it would be all right if she brought him up to the apartment when Bierenbaum wasn't there. She also told DeCesare that she thought she was being followed. In their last telephone conversation, Katz told DeCesare that she planned to ask Bierenbaum for a divorce, and that she had secretly borrowed $10,000.00 and put it in a safe deposit box to pay for a year of graduate school.

Dr. Kenneth Feiner developed a romantic relationship with Katz in the months prior to her disappearance. He testified that Katz discussed with him her wish to leave her husband, their constant fights and arguments, and one argument during which Bierenbaum put his hands to her neck. Katz told him that she was going to move in with her friend Ellen Schwartz in Connecticut.

Katz had an affair with Anthony Segalas, an investment banker, during the summer of 1984 and the spring of 1985. Segalas testified that Katz told him she was in a very unhappy marriage, that she was afraid of her husband and that he had tried to strangle her once. More recently she talked of moving in with a girlfriend in Connecticut. Segalas and Katz used cocaine together.

Dr. Yvette Feis, Katz's former professor and friend, testified that Katz told her she was looking for other sexual partners. In 1984 Katz told her about a time in 1983 when Bierenbaum noticed her smoking a cigarette on the terrace of their apartment, became violent and began choking her. Late in 1984 or early 1985 Katz told her that she had received a letter from Bierenbaum's psychiatrist warning her that Bierenbaum posed a danger to her, and suggesting that Katz separate from him. Katz told Feis that she intended to use the letter as leverage in divorce proceedings by threatening to use it to ruin his career.

Dr. Sybil Baran, Katz's therapist, testified that Katz was afraid of Bierenbaum's anger. Katz told her about an incident, precipitated by smoking, when Bierenbaum became enraged and attempted to strangle her. In the four to six months before she disappeared she told her therapist that she was looking for an apartment so that she could separate from Bierenbaum.

Dr. Ellen Schwartz, a close friend from graduate school, testified that Katz told her she was afraid of her husband, and that she was planning to leave him soon. Katz told her that the night before she took her Graduate Record Exam, Bierenbaum choked her to unconsciousness because she smoked a cigarette.

2. The Videotapes

Dr. Charles Hirsch, Chief Medical Examiner for New York City, testified that prior to the onset of rigor mortis, a dead body is "pliable." The body of a woman five feet three inches tall, weighing about one hundred ten pounds could be folded and tied into a "package" about thirty- six inches long. Hirsch also stated that a body could be "disarticulated" at the joints, a simple process that someone trained in anatomy could accomplish in ten minutes.

There was evidence that Bierenbaum regularly carried heavy duffel bags. The jury also learned that a Cessna 172 Skyhawk, the airplane that Bierenbaum rented, is a stable, easy-to-handle four passenger aircraft. An inspector for the Federal Aviation Administration testified that in his opinion a pilot could singlehandedly dispose of something from the plane without a great deal of difficulty.

Sergeant Matthew Rowley of the New York police department's Aviation Unit executed three flights in a Cessna 172 from Caldwell Airport on October 11, 2000, during the trial. Three times Rowley loaded a bag containing one hundred ten pounds of sand and rice into the plane, flew out over the ocean, and ejected the bag, each time performing a different maneuver to ...

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