Judge tosses ex-trooper’s conviction in gambling probe over lawyer’s effectiveness
A federal judge has thrown out a retired Kansas Highway Patrol trooper’s conviction and sentence related to a multi-year illegal gambling probe in Wichita, saying the former lawman’s defense attorney gave an “objectively unreasonable” performance that deprived the former lawman of a fair trial.
U.S. District Judge Eric Melgren, in a 20-page written memorandum and order filed Tuesday, granted 54-year-old Michael Frederiksen’s request to vacate and set aside his conviction for lying to the FBI on the grounds that his attorney was ineffective.
Frederiksen, in a July 1 written motion, cited four failures on the part of his then-lawyer, Marcos Montemayor, that he says stripped him of a fair trial. Those included Montemayor filing a post-trial motion 45 days late, not objecting when the government misstated the law during closing arguments, failing to object to “irrelevant and prejudicial evidence” presented to jurors, and not asking for a mistrial after the court dismissed one of two charges Frederiksen was facing.
If not for those missteps, Frederiksen argued in his motion, jurors likely would have acquitted him of one count of making a false statement during a federal investigation. Instead, the jury delivered a guilty verdict on May 1, 2018.
Frederiksen, of Derby, was sentenced to a year of unsupervised probation in January.
Melgren, in Tuesday’s memorandum and order, noted that during a Sept. 24 hearing Montemayor admitted that he did not know certain court rules regarding evidence, was licensed to practice in New Mexico but not Kansas and that the only other jury trial he’d worked involved medical debt collection in a New Mexico state court.
Montemayor also testified during the Sept. 24 hearing that “he had concerns about his ability to represent” Frederiksen and recommended “approximately three or four other defense attorneys” before proceeding with the trial.
Melgren added that prosecutors’ case against Frederiksen “was already lacking” overall and said if the defense attorney would have “made a timely and competent argument that the government’s evidence was insufficient to support a finding of guilty … (Frederiksen) likely would have been successful” securing an acquittal or new trial.
“We are grateful that the Court found that the evidence against Mr. Frederiksen was lacking, and that the prosecutors confused the jury by misstating the law,” Frederiksen’s current defense attorneys Melanie Morgan and Branden Bell of Kansas City, Missouri-based law firm Morgan Pilate said an emailed statement responding to The Eagle’s request for comment on Tuesday’s ruling.
“We hope that Mr. Frederiksen can finally put this matter behind him.”
U.S. Attorney Stephen McAllister’s Office did not return a message seeking comment on Melgren’s decision late Wednesday afternoon.
Frederiksen’s 2018 trial gave the public the most-detailed look to date at the FBI probe into illegal poker games in Wichita that involved law enforcement and businessmen, including Brandon Steven who pleaded guilty in June to hiding gambling ledgers connected to the games. Steven’s brother, Johnny Steven, and Wichita bookie Daven Flax, who ran the games, were the “primary targets” of the FBI investigation, according to Melgren’s ruling. Flax is serving two years of federal probation for two counts of illegal gambling and one count of making a false tax statement.
Johnny Steven has not been formally charged with any crime.
Frederiksen was charged with “willfully and knowingly” lying and downplaying his involvement in an illegal poker game on Feb. 12, 2014, during a February 2017 FBI interview. Originally, Frederiksen was tried on two counts of lying. But during the trial Melgren threw out one count involving the question of whether Frederiksen had lied about the extent of his contact with Johnny Steven, saying there was not enough evidence to support it.
This story was originally published October 25, 2019 at 5:01 AM.
