Michael L. Johnson v. John Bett , Warden

In the
United States Court of Appeals
For the Seventh Circuit
____________
No. 02-4190
M ICHAEL L. J OHNSON ,
Petitioner-Appellant,
v.
J OHN B ETT , W ARDEN ,
Respondent-Appellee.
____________
Appeal from the United States District Court
for the Eastern District of Wisconsin.
No. 99 C 412—J.P. Stadtmueller, Judge.
____________
No. 03-2245
D ALE B ASTEN ,
Petitioner-Appellant,
v.
D ANIEL B ERTRAND ,
Respondent-Appellee.
____________
Appeal from the United States District Court
for the Eastern District of Wisconsin.
No. 99 C 411—Aaron Goodstein, Magistrate Judge.
____________
A RGUED S EPTEMBER 23, 2003—D ECIDED N OVEMBER 20, 2003
____________

-- 1 of 14 --

2 Nos. 02-4190 & 03-2245
Before P OSNER , M ANION , and E VANS , Circuit Judges.
E VANS , Circuit Judge. These petitions for writs of habe-
as corpus require us to again look at the gruesome mur-
der of Thomas Monfils at the hands of some of his cowork-
ers at the James River Paper Mill in Green Bay, Wisconsin.
We have previously set out the facts in a civil rights case,
Monfils v. Taylor, 165 F.3d 511 (7th Cir. 1998), and two
petitions for habeas corpus, Piaskowski v. Bett, 256 F.3d
687 (7th Cir. 2001), and Moore v. Casperson, 345 F.3d 474
(7th Cir. 2003). We repeat them here only as necessary
to resolve these appeals, which we have consolidated.
On November 10, 1992, the Green Bay Police Depart-
ment received an anonymous tip that James River em-
ployee Keith Kutska was planning to steal a piece of
electrical cord. That information was passed on to the
company, and when Kutska was leaving after his shift, he
was stopped by a security guard who asked to search his
duffel bag. Kutska refused to allow the search and, as a
result, was suspended without pay for 5 days.
Kutska found out that the police had been tipped off by
an anonymous call, and he set out to find out who the
caller was. Meanwhile, fearing being found out, Monfils,
who had called in the tip, begged the police not to give
Kutska access to the tape. But in a bureaucratic blunder,
Kutska was given the tape, which allowed him to iden-
tify Monfils’ voice.
Kutska brought the tape to the mill on November 21 and
played it for anyone who would listen, including petition-
ers Michael Johnson and Dale Basten.
At 7:34 the same morning the tape was being played,
Monfils performed a routine task known as a “turnover,”
which is essentially changing a paper roll. A minute later,
an altercation involving Monfils and a number of other
workers occurred near a water fountain. Monfils was

-- 2 of 14 --

Nos. 02-4190 & 03-2245 3
attacked and beaten until he was unconscious, lying in a
ball on the floor.
At trial, there was testimony about the encounter at
the water fountain from James Gilliam, a jailhouse in-
formant, who was Reynold Moore’s cellmate. Gilliam said
that Moore told him that he and others decided to scare
Monfils. Kutska hit Monfils in the face and Monfils went
into a cuddle on the floor. Moore said he attacked Monfils
“like everybody else.” According to Gilliam’s account of
what Moore said, the attackers then went back to work,
and Moore was shocked to learn that Monfils was found
dead.
Not everyone immediately went back to work, however,
because about 5 minutes later, mill worker David Wiener
saw Basten and Johnson in an area which connects the
paper machines with the vat that supplies pulp to the
machines. Johnson was walking backwards 5 or 6 feet in
front of Basten. The men appeared to be carrying some-
thing toward the pulp vat.
At 7:45 Kutska and Moore, another of the convicted men,
were in an area of the plant with Michael Piaskowski.
Kutska told Piaskowski to alert a supervisor that Monfils
was missing. After Piaskowski notified the supervisor, a
search was begun. The next day, Monfils’ body was found
at the bottom of the pulp vat. A heavy weight was tied
around his neck. The coroner determined that he died
by asphyxiation due to the aspiration of paper pulp, which,
of course, means he was alive when he was thrown into
the vat to which he was carried, if Wiener’s account is
true, by Johnson and Basten.
A break in the case over 2 years later allowed the police
to charge six men with first-degree intentional homicide,
as a party to a crime. In April 1995, Brian Kellner, another
mill worker, told police that Kutska admitted that the
six defendants and another man confronted Monfils near
the water fountain after the 7:34 turnover. All six men

-- 3 of 14 --

4 Nos. 02-4190 & 03-2245
were convicted after a joint trial. The Wisconsin Court of
Appeals affirmed the convictions and the Wisconsin Su-
preme Court denied review. Later, Piaskowski’s petition
for a writ of habeas corpus was granted in a decision we
affirmed in the case cited above. Basten and Johnson are
hoping for the same good fortune in their petitions for
writs of habeas corpus.
Both men contend that the evidence was insufficient
to sustain their convictions. In addition, Johnson argues
that he was denied his right to present a defense, specifi-
cally an expert witness. Basten complains of the admis-
sion of hearsay statements of a codefendant, the failure
to sever his trial from the others, the abridgement of his
right to confront witnesses and present evidence, and the
denial of his request for a new trial based on newly dis-
covered evidence.
Under the Antiterrorism and Effective Death Penalty
Act (AEDPA), 28 U.S.C. § 2254(d)(1), habeas relief may
be granted if the decision of the state court “was contrary
to, or involved an unreasonable application of, clearly
established Federal law, as determined by the Supreme
Court of the United States[.]” In Williams v. Taylor, 529
U.S. 362, 405, 407 (2000), the Court explained that a
state court decision is “contrary to” Supreme Court prece-
dent if the “state court arrives at a conclusion opposite to
that reached by [the Supreme Court] on a question of law”
or “confronts facts that are materially indistinguishable
from a relevant Supreme Court precedent” and arrives
at an opposite result. An unreasonable application of Su-
preme Court precedent occurs when “the state court
unreasonably applies it to the facts of the particular
state prisoner’s case” or “unreasonably extends a legal
principle . . . to a new context where it should not apply
or unreasonably refuses to extend that principle to a
new context where it should apply.” To be unreasonable,
the decision of the state court must not be simply incor-

-- 4 of 14 --

Nos. 02-4190 & 03-2245 5
rect or erroneous, it must have been “objectively unreason-
able.” Wiggens v. Smith, 123 S. Ct. 2527 (2003).
The clearly established federal law which applies to the
petitioners’ claims that the evidence is insufficient to
sustain their convictions is that set out in Jackson v.
Virginia, 443 U.S. 307 (1979). Jackson, at 319, holds that
due process is satisfied if, viewing the evidence in the
light most favorable to the prosecution, “any rational trier
of fact could have found the essential elements of the
crime beyond a reasonable doubt.” For purposes of the
habeas petitions, we must determine whether the Wis-
consin Court of Appeals’ decision that a rational jury could
have convicted Basten and Johnson was an objectively
unreasonable application of the Jackson standard.
As we said, we have previously considered Piaskowski’s
claim that the evidence was insufficient to convict him,
and we agreed that it was. We have also glanced at
Moore’s claim in the context of whether he could show
prejudice for his procedural default in not presenting the
issue to the Wisconsin Supreme Court. Moore, 2003 WL
22227975. His case, we said, was different from (and more
compelling than) Piaskowski’s.
Turning to the evidence against Basten and Johnson, we
find considerably more evidence than existed against
Piaskowski. And, as the respondent points out, the State’s
theory of the case against Basten and Johnson was differ-
ent from that against Piaskowski. As to Piaskowski, the
theory was that he participated in a conspiracy to kill
Monfils but did little else to cause the death. By contrast,
the theory as to Basten and Johnson was that they actually
committed the murder by throwing Monfils into the pulp
vat.
The evidence on which the Wisconsin Court of Appeals
relied includes that set out above regarding the tape of
Monfils’ call to the police. The court considered the testi-

-- 5 of 14 --

6 Nos. 02-4190 & 03-2245
mony from Kellner about his conversation with Kutska
and the testimony of Wiener that he saw the two men
carrying something from the location of the beating to the
pulp vat. Johnson was walking backwards about 5 or 6
feet ahead of Basten—the approximate length of Monfils’
body. There was evidence that after the body was found,
Basten began acting strange and talked about how he
would have disposed of the body. There was also evi-
dence that Basten approached Wiener on several occa-
sions to find out what he knew about the incident. The
court of appeals determined that the jury could reason-
ably infer that Basten’s curiosity about what Wiener had
seen was rooted in his fear that his involvement in carry-
ing the body was observed. Basten also had a threatening
conversation with Connie Jones, an employee who had
listened to the tape of Monfils’ call to the police and who
said that before she heard the tape, she saw Monfils seated
by a machine and that Kutska pointed him out to the
others while the tape was playing at about 7:30 a.m. Also,
Basten told his employer that Monfils could have been
kicked in the groin even though that information had
not been made public. Basten was reported to have called
Wiener a “fuckin’ squealer.” Basten was overheard say-
ing that he should have left town when the police started
to question him because now they knew for a fact that
“we did the shit.” When he was interrogated, he started to
cry, and in response to an interrogator’s statement that
“you didn’t mean to kill Tom Monfils, did you,” he said no.
There was evidence that Johnson was with Basten at
least one of the times he talked with Wiener, and Johnson
told coworkers that Monfils got what he deserved. Also,
the jury could have relied on inconsistencies in Johnson’s
statements following the murder. Additionally, the jury
could infer that Basten and Johnson carried Monfils and
that they were the ones who tossed him in the vat. We
cannot conclude that the determination that a rational jury

-- 6 of 14 --

Nos. 02-4190 & 03-2245 7
could have convicted Basten and Johnson based on this
evidence was an objectively unreasonable application of
Jackson.
Next, the defendants present claims that the exclusion
of certain evidence violated their constitutional rights,
including the right to present a defense. The question for
us is whether the exclusion of this testimony violated
the Constitution in a manner clearly prohibited by the
Supreme Court. We must start with the proposition that
the Constitution recognizes the right of a criminal defen-
dant to present evidence in his defense. Chambers v.
Mississippi, 410 U.S. 284 (1973). That right, however, is
not unlimited and is subject to reasonable restrictions.
Taylor v. Illinois, 484 U.S. 400 (1988). The states have
broad latitude to establish rules excluding evidence so
long as the rules are not arbitrary or disproportionate to
the purpose they are designed to serve. The exclusion of
evidence is unconstitutionally arbitrary or disproportion-
ate only in circumstances in which it has infringed
on a weighty interest of the accused. Rock v. Arkansas, 483
U.S. 44 (1987).
Both Basten and Johnson complain about the exclusion
of part of the testimony of Dr. Edward Geiselman, a psych-
ologist. Basten wanted to undermine the testimony of
Wiener, who said he saw Basten and Johnson carrying
something to the area of the pulp vat. Wiener did not
come forward immediately with this observation. Rather,
he said that his memory of seeing Basten and Johnson
suddenly returned May 15, 1993, when, in a drunken,
depressed, and paranoid state at a wedding, he heard
the name of a person he did not know who had nothing
to do with the Monfils case. Somehow this reference jogged
his memory.
To counter that claim, Basten called Dr. Geiselman as a
witness. Dr. Geiselman was allowed to testify to suggestive

-- 7 of 14 --

8 Nos. 02-4190 & 03-2245
investigative techniques on memory; that is, that false
memories can be constructed by techniques that posit
certain facts as true so that a witness erroneously be-
lieves that what he had been told by an interviewer is
what he actually remembers. But certain evidence Basten
wanted to elicit was excluded. In his offer of proof regard-
ing the excluded evidence, Basten said that Dr. Geiselman
would be able to testify about the circumstances in
which repressed memory was found to occur in clinical
studies and about how Wiener’s claim of repressed memory
stacked up with other cases.
The evidence was excluded under Wis. Stat. § 904.03,
which precludes the admission of evidence whose proba-
tive value is outweighed, for instance, by the danger of
confusing or misleading the jury, or by considerations of
undue delay or waste of time. In itself, this rule is not
arbitrary or disproportionate to its purpose. And the
exclusion of Dr. Geiselman’s testimony can easily be
supported under the rule. The jury would not need expert
testimony to discredit Wiener’s account of how he hap-
pened to remember seeing Basten and Johnson carrying
something. The jury would likely conclude on its own that
another explanation existed. The jurors could have thought
that Wiener remembered seeing the men all along but
was afraid to say anything because of the danger of
retaliation—certainly a legitimate fear in the environment
of this paper mill. When Wiener finally reported what he
saw, he had to come up with an explanation of why he
hadn’t come forward earlier, so he made up the repressed
memory story. The decision of the Wisconsin Court of
Appeals on this issue is not contrary to or an unreason-
able application of clearly established Supreme Court
precedent.
Basten also contends that he was not allowed to dispute
the testimony of witness James Charleston. Charleston
testified that he and Basten were watching a television

-- 8 of 14 --

Nos. 02-4190 & 03-2245 9
news story that identified Wiener as a witness in the case
against Basten. Charleston testified that during the
news story, Basten mumbled “fuckin’ squealer.” At trial,
the jury was aware that Wiener had been convicted of
a crime unrelated to the Monfils murder and that he was
in prison at the time of trial, but they did not know why.
Basten wanted to testify that what he actually said
was “killer,” rather than squealer, and he wanted to ex-
plain to the jury why he would have said “killer”; that
is, that Wiener had been arrested for killing his brother.
The trial judge allowed Basten to testify that he had “said
something else”; Basten was allowed to say that he uttered
an epithet relating to the conduct with which Wiener
was charged, but he was not allowed to say what Wiener’s
crime was.
The Wisconsin Court of Appeals affirmed the reasoning
of the trial judge that the evidence was highly prejudicial
and that its probative value, given what Basten was
allowed to testify to, was low. The Wisconsin courts walked
a tight line on this issue, but we cannot say that its res-
olution violated Basten’s rights. Labeling Wiener a mur-
derer could easily have prejudiced the jurors and caused
them to think that perhaps Wiener was responsible for
Monfils’ death as well. Basten’s testimony that he did
not say “squealer” refutes the testimony without inject-
ing confusing and prejudicial collateral evidence into
the already lengthy proceedings.
Basten also disputes the propriety of admitting certain
evidence. He contends that the admission of a statement
Kutska made to Kellner at a Fourth of July party vio-
lated his Sixth Amendment and due process rights. Kellner
testified that he and Kutska began drinking beer at
noon and continued into the evening. During that time,
Kutska told Kellner that the six men charged with Monfils’
murder confronted Monfils near a drinking fountain, that
someone waved the audio tape of the call to the police in

-- 9 of 14 --

10 Nos. 02-4190 & 03-2245
Monfils’ face, and then hit Monfils on the back of the
head. Kutska said he was “just standing back and watch-
ing the show progress and that then he had to leave”
because there were problems with a piece of machinery.
By the time he finished fixing the machine, Kutska said,
“Tom was gone.”
Basten argues that the statement was improperly admit-
ted under an exception to the hearsay rule, as set out
in Wis. Stat. § 908.045(4). The statute requires that, to be
admissible, the statement must be against the declarant’s
interest and the declarant must be unavailable as a wit-
ness. The Wisconsin Court of Appeals found that the
statement was admissible under § 908.045(4).
Whether it was error to admit the statement under
the Wisconsin evidentiary rule is not our concern. Even
before AEDPA, the Supreme Court has made clear that
federal habeas corpus does not reach errors of state law.
In conducting habeas review, “a federal court is limited
to deciding whether a conviction violated the Constitu-
tion, laws, or treaties of the United States.” Estelle v.
McGuire, 502 U.S. 62, 68 (1991).
What is our concern is whether the admission of the
evidence was so unfair as to be a violation of the Due
Process Clause or the Sixth Amendment’s Confrontation
Clause. We find it was not. Even when presumptively
unreliable hearsay is admitted as substantive evidence,
there is no violation so long as the declarant testifies as
a witness and is subject to cross-examination. California
v. Green, 399 U.S. 149 (1970); Kentucky v. Stincer, 482
U.S. 730 (1987); Nelson v. O’Neil, 402 U.S. 622 (1971). As
we said in Moore, Kutska testified at trial, thus curing
any error under Bruton v. United States, 391 U.S. 123
(1968). See Moore, 2003 WL 22227975.
Next, Basten argues that the denial of his severance
motion violated his due process rights. That is so, he

-- 10 of 14 --

Nos. 02-4190 & 03-2245 11
says, because of the admission of Kutska’s statements to
Kellner and because the abundance of evidence against
the other defendants could influence the jury to find him
guilty.
We cannot find, however, that the decision regarding
severance is contrary to or an unreasonable application of
Supreme Court precedent. In fact, the Court has said
that when a single crime is committed against a single
victim in a single series of events by several defendants,
a joint trial is not only acceptable but is desirable to
promote greater reliability and consistency in the verdicts.
Buchanan v. Kentucky, 483 U.S. 402 (1987). A misjoinder
of defendants rises to the level of a federal constitutional
violation only if it results in substantial prejudice to a
defendant. United States v. Lane, 474 U.S. 438 (1986).
A defendant might be prejudiced if the jury heard evi-
dence admissible against only one defendant, which would
be inadmissible against him were he tried alone. That is
the gist of what Basten says happened to him. But it is
likely that if Basten had been tried alone, Kutska’s state-
ment to Kellner would have been properly admitted as
a statement against interest. The bulk of the remaining
evidence was relevant to all the defendants. And, of course,
Wiener’s statement that he saw Basten and Johnson
carrying something toward the vat applies directly to
Basten and Johnson. The defendants were in this conspir-
acy together. Trying them together allowed the State to
present a chronology of what happened. Had each of the
defendants been tried separately (and there is no reason
to believe Basten is more entitled to a separate trial than
any of the others), the story would have had to be pre-
sented six times. This case is a fairly good illustration of
why joint trials are preferred.
Finally, Basten argues that his due process rights
were violated because he was denied a new trial on the

-- 11 of 14 --

12 Nos. 02-4190 & 03-2245
basis of newly discovered evidence. That evidence is
Kellner’s partial recantation of his trial testimony and
testimony from various inmates with whom Wiener was
incarcerated, which allegedly cast doubt on his trial testi-
mony.
On this claim, Basten must shoulder a heavy burden.
Again he must show that the decision denying him a
new trial was “contrary to” or an “unreasonable application
of” Supreme Court precedent. And the Court has expressly
held that “the existence merely of newly discovered evi-
dence relevant to the guilt of a state prisoner is not a
ground for relief on federal habeas corpus.” Townsend v.
Sain, 372 U.S. 293, 317 (1963). For claims based on newly
discovered evidence to state a ground for federal habeas
relief, they must relate to a constitutional violation inde-
pendent of any claim of innocence. Herrera v. Collins, 506
U.S. 390 (1993). We have said that the “refusal to grant a
new trial on the basis of newly discovered evidence is
not actionable in habeas corpus.” Guinan v. United States,
6 F.3d 468, 470 (7th Cir. 1993). And further, we have
said that
[w]here the “newly discovered evidence” consists of
witness recantations of trial testimony or confessions
by others of the crime, most courts decline to consider
it in the absence of any showing that the prosecution
knowingly proffered false testimony or failed to dis-
close exculpatory evidence, or that petitioner’s counsel
was ineffective.
Coogan v. McCaughtry, 958 F.2d 793, 801 (7th Cir. 1992).
Recently we decided that Kellner’s “recantation” did not
require a new trial for Reynold Moore. We again come to
that conclusion. In his trial testimony, Kellner said that
Kutska named all six defendants as involved in the con-
frontation with Monfils. At the postconviction hearing, he
testified that Kutska said all were present immediately

-- 12 of 14 --

Nos. 02-4190 & 03-2245 13
before the confrontation but that Kutska named only
Hirn and Moore specifically at the confrontation. Kutska
did this by drawing a diagram and labeling where people
were standing. While the diagram showed several people,
only Hirn and Moore were named. The testimony, even
if we could consider it as a basis for habeas corpus, does
not clear Basten.
The second basis for Basten’s claim is that there is new
evidence that Wiener’s trial testimony was false and that
Wiener was actually the killer. As we said above, after the
Monfils’ murder, Wiener went to prison for reckless homi-
cide in the killing of his brother. At the postconviction
hearing in the present case there was testimony from
Wiener’s fellow inmates, who testified that Wiener told
them he did not see Basten carrying anything. In addi-
tion, one inmate testified that Wiener asked what the
State would be able to do if they found out he was the one
who killed Monfils. Another inmate and a paralegal said
that Wiener had not actually mentioned Monfils’ name, but
used a pronoun. The State argues that Wiener could have
been talking about killing his brother. That is not an
overly convincing explanation of the remark, but, on the
other hand, because Monfils’ murder was the result of a
conspiracy, the fact that Wiener may have been involved in
the murder does not mean that others were not involved.
Additionally, we note that there is nothing in the rec-
ord to suggest that the prosecution had knowledge that
either Kellner or Wiener might be testifying untruthfully
at trial and, despite that knowledge, offered false testi-
mony. There is no basis in this record to grant habeas re-
lief based on this evidence.
The judgments of the district courts denying the writs
are A FFIRMED .

-- 13 of 14 --

14 Nos. 02-4190 & 03-2245
A true Copy:
Teste:
________________________________
Clerk of the United States Court of
Appeals for the Seventh Circuit
USCA-02-C-0072—11-20-03

-- 14 of 14 --