Federal Criminal Law Opinions

Appeal from the U.S. District Court for the Southern District of Georgia (No. 02-00184-CV-LGW).

(Before BIRCH, BARKETT and PRYOR, Circuit Judges.)

(PRYOR, Circuit Judge.) The issue in this appeal is whether the Superior Court of Butts County, Georgia, unreasonably applied clearly established federal law when it ruled that Mark Howard McClain failed to prove ineffective assistance of trial counsel in the investigation of mitigating evidence for the penalty phase of McClain’s trial. McClain was sentenced to death for a murder he committed during an armed robbery. Counsel met with McClain between twenty and thirty times before trial, interviewed McClain’s father and sister, and secured the help of a mental health expert. In his petition for a writ of habeas corpus, McClain alleged that his trial counsel was ineffective for failing to discover and present mitigating evidence regarding his criminal history, childhood abuse, substance abuse, neurological disorder, and good character. The Georgia court denied McClain’s petition because his experienced counsel knew of some of the evidence but reasonably did not pursue it further, counsel reasonably attempted but failed to obtain other evidence, and McClain failed to establish prejudice about any remaining issues. Because that ruling was not objectively unreasonable, we affirm the denial of McClain’s petition.

I. BACKGROUND
At approximately 1:00 a.m. on Sunday, November 20, 1994, McClain left the house of his girlfriend, Tina Butler, drove to a nearby Domino’s Pizza store on Washington Road, and parked his blue Buick automobile beside the store. When Philip Martin Weeks Jr., a delivery man, returned to the store before 2:00 a.m., McClain approached Weeks and asked to purchase a pizza. Weeks explained that the store had stopped selling carry-out pizza at 10:00 p.m. the previous evening. McClain protested and refused to leave. To appease McClain, Weeks said that he would ask the manager, Kevin Scott Brown, to make an exception for McClain. McClain began yelling outside the store that he wanted a pizza. Brown released the lock of the door to the store, and Weeks opened the door.

McClain attempted to force his way into the store. Weeks initially struggled with McClain, but when McClain produced a small caliber revolver, Weeks fled through the store and out the back door. Brown, who weighed approximately 450 pounds, remained behind the counter of the store, unable to move quickly. As Weeks left the store, he heard McClain demand that Brown give him money.

Weeks ran to a pay telephone to call the police. After he realized the phone was broken, Weeks ran toward another pay telephone at a gas station across Washington Road. As he began to cross the street, Weeks saw a car leave the Domino’s parking lot at a high rate of speed and turn onto Washington Road. The driver, McClain, made eye contact with Weeks and an obscene gesture toward him. Weeks memorized the license tag number of McClain’s car. Weeks then flagged down a passing motorist, who drove Weeks back to the store.

Weeks entered the store and found Brown lying on the floor behind the counter and bleeding from a bullet wound to his chest. The keys to the money till of the store, which Brown ordinarily kept in his pocket, were in the till and approximately $100 was missing. Weeks called 911, but Brown bled to death before paramedics arrived.

Within an hour of leaving Butler’s house, McClain returned and gave Butler approximately $100, without explaining where he had obtained the money. McClain spent much of the following day at Butler’s house. In the meantime, police traced to McClain’s father the license tag number of the car Weeks saw. McClain’s father stated that McClain was the primary driver of the car and gave police a description of McClain that matched Weeks’s description. The assistant manager of the Domino’s store identified McClain as having bought a pizza in the store under the name of Johnson two days before the shooting. The box with the receipt for that pizza was found in the trash during a search of McClain’s residence.

McClain was arrested when he arrived at work in his blue Buick the following Monday morning, November 21, 1994. McClain called Butler from the jail that evening and told her to dispose of the clothes, boots, and gun that he had left at her house. McClain also demanded that Butler provide him with an alibi for the night of the shooting and threatened to implicate Butler and her family if she refused to help him. In response to McClain’s request, Butler hid McClain’s jacket in a neighbor’s shed and gave McClain’s gun to her nephew.

The police questioned Butler, who eventually told the police about McClain’s telephone call to her and gave police McClain’s jacket and boots. McClain’s gun was recovered a month later when Butler’s nephew was involved in a shooting. Butler testified against McClain at trial. McClain denied any involvement in the crime until trial, when he testified that he had intended only to rob the store. McClain testified that he shot Brown when he heard a noise as he was leaving the store and believed Brown was pursuing him.

McClain was convicted of murder, armed robbery, burglary, and possession of a firearm during the commission of certain crimes. McClain v. State, 267 Ga. 378, 379 n.1, 477 S.E.2d 814, 818 n.1 (1996). He later pleaded guilty to possession of a firearm by a convicted felon. Id. The jury sentenced McClain to death for the murder and found three statutory aggravating circumstances: the murder was committed during the commission of a burglary; the murder was committed during the commission of an armed robbery; “and the murder was committed for the purpose of receiving money or things of monetary value.” Id. at 379, 477 S.E.2d at 818-19. The Supreme Court of Georgia affirmed McClain’s conviction and sentence, id. at 388, 477 S.E.2d at 826, and the Supreme Court of the United States denied certiorari. McClain v. Georgia, 521 U.S. 1106, 117 S. Ct. 2485 (1997).

McClain filed a petition for a writ of habeas corpus in the Superior Court of Butts County, Georgia, and attacked his sentence on numerous grounds, including ineffectiveness of trial counsel. After conducting an evidentiary hearing, the state court denied habeas relief. The court identified Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052 (1984), as the controlling precedent and determined that McClain’s claim of ineffective assistance failed either or both parts of the Strickland test. The Supreme Court of Georgia denied McClain’s application for a certificate of probable cause to appeal and the Supreme Court of the United States again denied certiorari. McClain v. Head, 537 U.S. 1033, 123 S. Ct. 565 (2002).

On November 1, 2002, McClain filed a petition for a writ of habeas corpus in a federal district court. See 28 U.S.C. § 2254. The district court, in a careful and well-reasoned opinion, denied McClain’s petition and request for a certificate of appealability. We granted McClain’s request for a certificate of appealability on one issue: whether McClain’s trial counsel rendered ineffective assistance in his investigation of mitigating evidence for the penalty phase of the trial.

II. STANDARDS OF REVIEW
McClain’s petition is governed by the Antiterrorism and Effective Death Penalty Act of 1996, which establishes a “general framework of substantial deference” for reviewing “every issue that the state courts have decided[.]” Diaz v. Sec’y for the Dep’t of Corr., 402 F.3d 1136, 1141 (11th Cir. 2005) [18 Fla. L. Weekly Fed. C319a]. Unless the decision of the Georgia court “‘(1) resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established federal law, or (2) resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in state court,’” we will not disturb that decision. Crowe v. Hall, 490 F.3d 840, 844 (11th Cir. 2007) [21 Fla. L. Weekly Fed. C731a] (quoting 28 U.S.C. § 2254(d)). Findings of fact by the Georgia court are presumed correct, and McClain bears the burden of rebutting that presumption by clear and convincing evidence. 28 U.S.C. § 2254(e)(1); Crowe, 490 F.3d at 844.

III. DISCUSSION
As the Georgia court correctly concluded, Strickland v. Washington governs McClain’s claims of ineffective assistance of counsel. We must decide whether the Georgia court unreasonably applied Strickland when it ruled that McClain failed to prove ineffective assistance of counsel in the investigation of mitigating evidence for the penalty phase of McClain’s trial. To prevail, McClain must establish not that the Georgia court applied Strickland incorrectly, but that its decision was objectively unreasonable. Bell v. Cone, 535 U.S. 685, 698-99, 122 S. Ct. 1843, 1852 (2002) [15 Fla. L. Weekly Fed. S295a].

To prove ineffective assistance of counsel under Strickland, McClain “must show that: (1) counsel’s performance was deficient because it fell below an objective standard of reasonableness; and (2) the deficient performance prejudiced the defense.” Stewart v. Sec’y, Dep’t of Corr., 476 F.3d 1193, 1209 (11th Cir. 2007) [20 Fla. L. Weekly Fed. C268a]. “Courts conduct a highly deferential review of counsel’s performance and indulge the strong presumption that counsel’s performance was reasonable . . . .” Id. (internal quotation marks omitted). This presumption is especially strong in this appeal because McClain’s lead counsel had practiced as a criminal defense lawyer for more than twenty years and had served as counsel in over one hundred murder cases, ten of which were capital cases.

To rebut the strong presumption that counsel’s performance was reasonable, McClain “must establish that no competent counsel would have taken the action that his counsel did take.” Id. (internal quotation marks omitted). “In considering claims that counsel was ineffective at the penalty phase of trial, we determine whether counsel reasonably investigated possible mitigating factors and made a reasonable effort to present mitigating evidence to the sentencing court.” Id. (internal quotation marks omitted). To establish prejudice under Strickland, McClain must establish “that there is a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome.” Strickland, 466 U.S. at 694, 104 S. Ct. at 2068. We may decline to decide whether the performance of counsel was deficient if we are convinced that McClain was not prejudiced. Id. at 697, 104 S. Ct. at 2069.

McClain raises two kinds of arguments. He presents several arguments that were addressed first by the Georgia court. McClain argues that his trial counsel was ineffective for failing to discover and present mitigating evidence of McClain’s role in two previous robberies, which was used as aggravating evidence by the prosecution, and evidence of McClain’s childhood abuse, substance abuse, neurological disorder, and good character. These arguments fail because the decision of the Georgia court about these issues was not objectively unreasonable. McClain also argues, for the first time, that his trial counsel was ineffective for failing to discover and present mitigating evidence that Butler instigated the robbery and that Butler and her nephew testified in exchange for a grant of immunity, but this argument is outside the scope of the certificate of appealability.

Our discussion is divided in six parts. We review the conclusions of the Georgia court about the five kinds of mitigating evidence separately, and we then explain why McClain’s new argument is outside the scope of our review.

A. Criminal History
The Georgia court concluded that McClain failed to establish that his counsel’s allegedly deficient performance in investigating McClain’s criminal history prejudiced his sentence, and we cannot say that decision was objectively unreasonable. McClain argues that his counsel would have discovered that McClain had a minimal and nonviolent role in two previous armed robberies if counsel had interviewed Allen Davenport and Jeff Western, his codefendants for those robberies, but their testimonies would have been outweighed heavily by the evidence of McClain’s culpability for those crimes. McClain testified to driving “the getaway car” during both robberies, pleaded guilty to being an accessory after-the-fact, and admitted knowingly participating in the second robbery. Chief Detective Billy Ivey of the Marion County Sheriff’s Department also testified at the penalty phase of McClain’s trial that McClain, Davenport, and Western planned the first robbery together. We agree with the district court that the decision of the Georgia court was reasonable.

B. Childhood Abuse
The Georgia court ruled that McClain failed to establish either that his counsel’s performance in investigating evidence of childhood abuse was deficient or that any alleged deficiency prejudiced his sentence, and we cannot say that decision was objectively unreasonable. McClain argues that his counsel would have uncovered mitigating evidence of McClain’s abusive childhood had they conducted adequate interviews of McClain, his family, and other witnesses. Based on the record before it, the Georgia court reasonably concluded that McClain failed to prove ineffective assistance.

Neither McClain nor his family informed counsel of McClain’s abusive childhood. We have explained that whether information about childhood abuse was supplied by a defendant to his counsel is “extremely important” in determining reasonable performance. Van Poyck v. Fla. Dep’t of Corr., 290 F.3d 1318, 1325 (11th Cir. 2002) [15 Fla. L. Weekly Fed. C555a] (per curiam). McClain’s counsel met with him between twenty and thirty times before trial and counsel conducted both telephone and in-person interviews of McClain’s father, William McClain, and McClain’s sister, Sharon McClain Gay.

Contrary to McClain’s allegation that his counsel did not explain the kind of mitigating evidence they needed, counsel testified that they told McClain and his father and sister that they wanted to know “absolutely everything” about McClain, including both “the good and the bad.” McClain’s counsel also testified that McClain’s father and sister both told counsel about McClain’s drug use and that McClain began “hanging out with the wrong crowd” in high school when his mother died, which suggests that McClain’s father and sister understood the type of “bad” information that counsel wanted to elicit. McClain argues that his counsel’s in-person interview of his sister was unlikely to uncover McClain’s childhood abuse because the interview was conducted at least partially in the presence of McClain’s allegedly abusive father, but the Georgia court reasonably concluded that McClain’s counsel conducted a reasonable investigation after McClain failed to notify his counsel of any abuse.

McClain argues that his counsel would have uncovered mitigating evidence of McClain’s abusive childhood had they interviewed McClain’s brother, Tim McClain, McClain’s friend, Richard Price, or other friends and acquaintances of McClain, but we cannot say the Georgia court was objectively unreasonable in ruling that reasonable counsel might not have attempted to interview Tim McClain, Price, or McClain’s unidentified friends and acquaintances. McClain did not inform counsel of the alleged childhood abuse or that Tim McClain, Price, or any of his friends and acquaintances would have testified to any abuse. When asked by his counsel, McClain struggled to provide the names of any potential mitigating witnesses. McClain eventually identified Price, but McClain described Price only as a “friend.” McClain never identified Tim McClain as a potential mitigating witness and instead said that he did not get along with his brother.

McClain also argues that his counsel would have uncovered mitigating evidence of McClain’s abusive childhood had they communicated better with their mental health expert, Dr. James I. Maish, but we cannot say the Georgia court was objectively unreasonable in ruling to the contrary. Dr. Maish testified that he was “made aware, through speaking with [McClain], his father, and his sister, that [McClain] had an abusive childhood . . . .” McClain’s attorneys testified that they were unaware of any potential childhood abuse and that Dr. Maish did not mention it to them. Counsel could have relied on the report of Dr. Maish, which did not mention child abuse, without asking Dr. Maish about the possibility of abuse. A reasonable attorney could have expected a mental health expert to report to counsel evidence of abuse. We agree with the district court that the decision of the Georgia court was reasonable.

C. Substance Abuse
The Georgia court concluded that McClain’s counsel was not deficient for failing to investigate and present more evidence of McClain’s substance abuse, and we cannot say that decision was objectively unreasonable. McClain argues that many of his friends and acquaintances would have told his counsel of his substance abuse, including Price; McClain’s roommate and coworker, Chuck Musgrove; and McClain’s friend, Debbie Gwinn. McClain admits that his counsel was aware of his history of substance abuse, including his substance abuse on the night of the murder, and McClain acknowledges that evidence of substance abuse is often a “two-edged sword” that provides “little mitigating value . . . .” Stewart, 476 F.3d at 1217. “Rarely, if ever, will evidence of [substance abuse] be so powerful that every objectively reasonable lawyer who had the evidence would have used it.” Id.

McClain’s counsel could have reasonably concluded that it would be better to argue at sentencing, as McClain’s counsel did, that the shooting was reflexive and unintentional, without presenting more evidence of McClain’s substance abuse. McClain argues that counsel’s failure to investigate was due to inattention, not a strategic decision to avoid potentially damaging testimony, but our review of counsel’s performance is objective. “Because this standard is objective, it matters not whether the challenged actions of counsel were the product of a deliberate strategy or mere oversight. The relevant question is not what actually motivated counsel, but what reasonably could have motivated counsel.” Gordon v. United States, 518 F.3d 1291, 1301 (11th Cir. 2008) [21 Fla. L. Weekly Fed. C464a] (citation omitted). Even if McClain’s counsel in fact had no strategic reason for not further investigating McClain’s history of drug abuse, counsel could have reasonably concluded that further investigation would not yield valuable evidence of mitigation. We agree with the district court that the decision of the Georgia court was reasonable.

D. Neurological Disorder
The Georgia court ruled that McClain’s counsel was not deficient in failing to discover McClain’s alleged neurological disorder, and we again cannot say that decision was objectively unreasonable. The Georgia court also found that the testimony McClain contends should have been offered is not entirely favorable to him. McClain relies on the post-conviction testimony of Dr. Jorge A. Herrera-Pino that McClain suffered from a frontal lobe disorder as a result of his substance abuse, and McClain argues that adequate investigation by his counsel and proper communication between counsel and Dr. Maish would have uncovered the frontal lobe disorder.

That McClain later secured a more favorable opinion of an expert than the opinion of Dr. Maish does not mean that trial counsel’s failure to obtain that expert testimony constituted deficient performance. See Gilliam v. Sec’y for Dep’t of Corr., 480 F.3d 1027, 1035 (11th Cir. 2007) [20 Fla. L. Weekly Fed. C366a] (per curiam). McClain’s counsel reasonably relied on Dr. Maish’s opinion that McClain suffered from “Antisocial Personality Disorder” but did not suffer from a frontal lobe disorder or from any “significant emotional disorder.” McClain blames Dr. Maish’s failure to diagnose the frontal lobe disorder on his counsel’s failure to inform Dr. Maish of McClain’s history of childhood abuse and substance abuse, but that argument fails. As McClain acknowledges, Dr. Maish was aware of both McClain’s substance abuse and childhood abuse. We agree with the district court that the decision of the Georgia court was reasonable.

E. Good Character
The Georgia court concluded that McClain failed to establish either that his counsel’s performance in investigating evidence of McClain’s good character was deficient or that any alleged deficiency prejudiced his sentence, and we cannot say that decision was objectively unreasonable. McClain argues that his counsel would have uncovered “strong humanizing evidence . . . about McClain’s good qualities and his attempts to lead a clean life after prison” had they interviewed his friends and acquaintances. Based on the record before it, the Georgia court reasonably concluded that, even if the failure of McClain’s counsel to investigate fell below the standard of effective representation, McClain failed to establish that any deficient performance prejudiced his sentence.

The Georgia court reasonably concluded that McClain’s character evidence was insignificant. McClain argues that Brian Ellefson, McClain’s supervisor at his place of work, would have testified that McClain had an “excellent” work ethic and a “pleasant” personality. McClain also argues that Gwinn would have testified that McClain was a “wonderful person” whom Gwinn knew to be “patient and kind and caring.” In the light of the seriousness of McClain’s crime, the Georgia court concluded that there was not a reasonable probability that McClain’s sentence would have been different had his counsel offered minimally consequential testimony regarding McClain’s “good qualities.” We agree with the district court that the decision of the Georgia court was reasonable.

F. New Argument
McClain also argues, for the first time, that his trial counsel was ineffective for failing to discover and present for the penalty phase mitigating evidence that Butler instigated the robbery and that Butler and her nephew, Diego Davis, testified for the state in return for a grant of immunity, but this argument is outside the scope of the certificate of appealability. See Murray v. United States, 145 F.3d 1249, 1250-51 (11th Cir. 1998) (per curiam). “[I]n an appeal brought by an unsuccessful habeas petitioner, appellate review is limited to the issues specified in the [certificate of appealability].” Id. at 1251. We granted McClain’s request for a certificate of appealability with respect to one issue: “[w]hether McClain’s [trial] counsel rendered ineffective assistance in his investigation of mitigating evidence for the penalty phase of the trial.” Although we did not restate the mitigating evidence at issue, McClain identified the following mitigating evidence in each of his requests for a certificate of appealability: “evidence about McClain’s family background, his long-term drug addictions, his good character, his prior convictions, and his impairments the night of the offense . . . .” McClain did not identify evidence that Butler instigated the robbery or evidence relating to prosecutorial immunity as mitigating evidence for the penalty phase in any of his requests for a certificate of appealability or in either his state or federal petition for a writ of habeas corpus. McClain instead relied on that evidence to support his claims of prosecutorial misconduct and ineffective assistance of trial counsel in the investigation of “exculpatory and impeach[ment]” evidence for the guilt phase of his trial. McClain may not now repackage his argument and describe this evidence as mitigating for the penalty phase to bring it within the scope of the certificate of appealability; neither the Georgia court nor the district court was ever asked to consider this argument.

IV. CONCLUSION
The denial of McClain’s petition for a writ of habeas corpus is

AFFIRMED.

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(BARKETT, Circuit Judge, concurring.) A lawyer must undertake a reasonable investigation as to the existence of mitigating evidence. Strickland v. Washington, 466 U.S. 668, 691 (1984). The scope of counsel’s duty to investigate is not limited by the amount of information that a defendant chooses to reveal. See generally Rompilla v. Beard, 545 U.S. 374, 377 (2005) [18 Fla. L. Weekly Fed. S419a] (holding that trial counsel’s duty to investigate persists “even when a capital defendant’s family members and the defendant himself have suggested that no mitigating evidence is available”); Coleman v. Mitchell, 268 F.3d 417, 449-50 (6th Cir. 2001) (“[D]efendant resistance to disclosure of information does not excuse counsel’s duty to independently investigate.”); American Bar Association Guidelines for the Appointment and Performance of Counsel in Death Penalty Cases, 11.4.1(C) (1989) (“The investigation for preparation of the sentencing phase should be conducted regardless of any initial assertion by the client that mitigation is not to be offered.”).1

These principles recognize a layperson’s lack of knowledge of the law. This is especially true of the legal thicket surrounding death penalty jurisprudence. A defendant generally would not know what evidence is admissible or might impact a jury’s decision to impose the death penalty. Thus, a lawyer must explain what kind of evidence he or she is looking for or ask questions that would elicit such evidence. Simply asking a defendant for information about his or her life without any indication of what counsel is, or should be, looking for does not inform a defendant of the relevance of certain mitigating evidence that a defendant might not think of disclosing or want to disclose without having a reason to do so.

In this case, I am satisfied that the state court was not unreasonable in its application of clearly established federal law in concluding that McClain did not meet his burden of showing ineffective assistance of counsel. Counsel for McClain were extremely experienced and had many conversations with the defendant, his father, and his sister. Additionally, counsel hired a mental health expert to evaluate McClain and search for mitigating evidence. The mental health expert, who understood the relevance of evidence of abuse, conferred with counsel in preparation for his testimony and did not deem the abuse he discovered significant enough to be relevant to his testimony.

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1“Prevailing norms of practice as reflected in American Bar Association standards and the like . . . are guides to determining what is reasonable.” Williams v. Taylor, 529 U.S. 362, 396 (2000).

* * *

Paul G. Hyman, Chief Judge.

MEMORANDUM ORDER DENYING

DEBTOR’S DISCHARGE
THIS MATTER came before the Court for trial on September 11, 2008, upon Deborah Menotte’s (the “Trustee”) Complaint to Deny Debtor’s Discharge (“Complaint”) filed on May 29, 2008. The Complaint contains two counts. Count one seeks denial of Anthony F. Cutaia’s (the “Debtor”) discharge pursuant to 11 U.S.C. § 727(a)(2)(B) on the grounds that the Debtor transferred, without notice or consent, his interest in a Rolex Cellini watch (“Rolex”), with the intent to hinder, delay, or defraud the Trustee and creditors. Count two seeks denial of the Debtor’s discharge pursuant to 11 U.S.C. § 727(a)(4)(A) on the grounds that the Debtor knowingly and fraudulently made a false oath by failing to disclose his interest in a Movado watch (“Movado”) on his Schedules. For the reasons set forth below, the Court denies the Debtor’s discharge pursuant to § 727(a)(2)(B).

FINDINGS OF FACT
The Debtor filed this Chapter 7 bankruptcy petition on July 24, 2007 (the “Petition Date”). However, the Debtor previously filed a Chapter 7 bankruptcy petition on March 25, 1994 and received a discharge. See In re Cutaia, No. 94-30982-SHF (Bankr. S.D. Fla. 1994). Also, on August 26, 1998, the Debtor’s spouse, Susan D. Cutaia, filed for Chapter 7 bankruptcy relief and received a discharge. See In re Cutaia, No. 98-34586-SHF (Bankr. S.D. Fla. 1998). During the Debtor’s 1994 bankruptcy proceeding, the trustee objected to the value of the Debtor’s claimed exempt assets. The Debtor resolved the issue by making payments to the trustee equal to the value of the claimed exempt assets over the actual exemption amount permitted under applicable law.

In this case, the Debtor filed his Schedules and Statement of Financial Affairs on August 22, 2007. On the Debtor’s Summary of Schedules, he listed liabilities of $7,801,203.82 and assets of $16,651.00. On Schedule C, the Debtor claimed $16,651.00 in exempt personal property, including the Rolex. On Schedule B, the Debtor disclosed ownership of the Rolex and asserted it had a current value of $250.00.

On October 16, 2007, the Court entered an Agreed Order Granting Trustee’s Agreed Motion for Extension of Time to File Objections to Claimed Exemptions (“Agreed Order”), which extended the time for the Trustee to object to the Debtor’s exemptions until December 31, 2007. The Court subsequently extended the time for the Trustee to object to the Debtor’s exemptions to May 31, 2008. On January 17, 2008, the Debtor testified at his 2004 examination that he sold the Rolex to a dealer at the Jewelry Exchange in Boca Raton “about a month or about two months ago.” On May 29, 2008, the Trustee filed an Objection to Exemptions. On September 17, 2008, the Court entered an Order Sustaining Trustee’s Objection to Exemptions, which sustained the Trustee’s objection to the Debtor’s claimed exemption for the Rolex.

At his 2004 examination, the Debtor initially testified that he received $2,500.00 for the Rolex, but then stated he only received $1,700.00. At trial, the Debtor conceded he failed to obtain any documentation of the sale and that he failed to make any effort to obtain such documentation. Based on the evidence provided, the Court finds that the Debtor sold the Rolex in December 2007 for $1,700.00.

Pursuant to the Pretrial Order, the Debtor admitted he failed to seek authorization from the Court or the Trustee to sell the Rolex, and he admitted he failed to advise the Court or the Trustee of the sale. The Debtor testified that the proceeds from the sale of the Rolex were used for “living expenses.” He further testified that “my feelings were that I, you know, needed to generate some income, and that’s one of the only things that we had.” The Debtor, however, acknowledged he understood his case listed assets of only $16,651.00 and debts exceeding $7 million, and consequently, the creditors’ claims would not be paid. He also confirmed his understanding that the proceeds of the Rolex may have gone towards payment of his creditors had he not sold it and spent the money.

The Debtor testified that he listed the value of the Rolex as $250.00 on Schedule B for two reasons. First, he purchased the Rolex for $1,000.00 years earlier and second, based on his experience in selling used items, he would receive only “25 to 30 percent of what the value is.” The Debtor later testified that his experience in selling used items involved selling used furniture when he and his wife moved from New York to Florida, and selling pieces of his wife’s jewelry. The Debtor is a sophisticated businessperson. He has appeared on both television and radio, holding himself out to third parties as having expertise in real estate investment and management.

Due to the Debtor’s unauthorized sale of the Rolex, which prevented the Trustee and any third party from inspecting the watch, the Court is unable to place a definitive value on the Rolex. However, the Trustee’s internet searches of comparable Rolex Cellini watches indicated prices of approximately $8,000.00 to $18,000.00. Accordingly, while the Court does not determine the exact value of the Rolex, the Court finds that the Debtor substantially undervalued the Rolex by scheduling its value at $250.00.

The Debtor also failed to account for his ownership of the Movado on his Schedules. The Debtor, however, wore the Movado to the 2004 examination and offered it to the Trustee. At trial, the Debtor testified that he “just forgot” about the Movado when completing his Schedules because “[i]t was in a drawer.” The Debtor testified that he did not remember that he owned the Movado until after he sold the Rolex.

CONCLUSIONS OF LAW
The Court has subject matter jurisdiction over this proceeding pursuant to 28 U.S.C. § 1334 and 28 U.S.C. § 157(b). This is a core proceeding pursuant to 28 U.S.C. § 157(b)(2)(J).

1. Objections to Discharge

The purpose of bankruptcy is to provide unfortunate and honest debtors the opportunity to a fresh start. In order to facilitate this purpose, “[o]bjections to discharge are to be strictly construed against the creditor and liberally in favor of the debtor.” Menotte v. Davis (In re Davis), 363 B.R. 614, 619 (Bankr. M.D. Fla. 2006) (citations omitted). However, “the discharge privilege is reserved only to honest debtors.” Reynolds v. Trafford (In re Trafford), 377 B.R. 387, 392 (Bankr. M.D. Fla. 2007); Jennings v. Maxfield (In re Jennings), 533 F.3d 1333, 1338-39 (11th Cir. July 11, 2008) (“The general policy that provisions denying such a discharge are construed liberally in favor of the debtor and strictly against the creditor applies only to the honest debtor.”); Scribner v. Bosket (In re Bosket), 369 B.R. 106, 110 (Bankr. W.D.N.Y. 2007) (“A [d]ischarge is for an honest but unfortunate debtor.”).

A burden-shifting framework applies to § 727 objections to discharge. The plaintiff bears the initial burden of proving the objection by a preponderance of the evidence. Joint Venture v. Fasolak (In re Fasolak), 381 B.R. 781, 787 (Bankr. M.D. Fla. 2007). “Once the plaintiff meets its initial burden, the debtor must then present evidence that sufficiently explains why he should nevertheless receive a discharge.” Id. (citations omitted).

2. 11 U.S.C. § 727(a)(2)(B)

Count one of the Complaint seeks denial of the Debtor’s discharge pursuant to § 727(a)(2)(B) on the grounds that the Debtor transferred, without notice or consent, the Rolex with the intent to hinder, delay, or defraud the Trustee and creditors.

Section 727(a)(2)(B) of the Bankruptcy Code provides that:

(a) The court shall grant the debtor a discharge, unless —

(2) the debtor, with intent to hinder, delay or defraud a creditor or an officer of the estate charged with custody of property under this title, has transferred, removed, destroyed, mutilated, or concealed, or has permitted to be transferred, removed, destroyed, mutilated, or concealed —

(B) property of the estate, after the date of the filing of the petition

11 U.S.C. § 727(a)(2)(B).

“Section 727(a) (2) is intended to prevent the discharge of a debtor who attempts to avoid payment to creditors by concealing or otherwise disposing of assets.” In re Davis, 363 B.R. at 619 (citing 6 COLLIER ON BANKRUPTCY § 727.02 (15th ed. 2005)).

In order to meet the initial burden under § 727(a)(2)(B), a plaintiff must show by a preponderance of the evidence that: 1) there was a transfer, 2) after the filing of the petition, 3) of property of the estate, 4) by the debtor with the intent to hinder, delay, or defraud his creditors. See Petland, Inc. v. Unger (In re Unger), 333 B.R. 461, 470 (Bankr. M.D. Fla. 2005) (citing Colonial Bank v. Johnson (In re Johnson), 301 B.R. 590, 596 (Bankr. N.D. Ala. 2003)).

The first two elements are established because the Debtor sold the Rolex after the Petition Date. Accordingly, the Court finds that there was a post-petition transfer.

The third element requires that the post-petition transfer involve property of the estate. “Upon filing bankruptcy, all of the debtor’s interest in property, including any potentially exempt property, becomes property of a bankruptcy estate under section 541.” In re Gatto, 380 B.R. 88, 93 (Bankr. M.D. Fla. 2007). “On the filing date of a bankruptcy case, property of the estate includes exempt property. However, once a debtor’s claim of exemption is allowed, exempt property is considered withdrawn from the estate.” In re Quezada, 368 B.R. 44, 48 (Bankr. S.D. Fla. 2007) (citations omitted). Therefore, when the Debtor sold the Rolex in December 2007, it was still property of the estate because the Court had not allowed the exemption. Moreover, in December 2007, the time for the Trustee to object had not expired. Consequently, the third element is satisfied because the Rolex was property of the estate at the time of the sale.

The last element requires the Trustee to establish that the Debtor acted with the intent to hinder, delay, or defraud his creditors. “Since it is unlikely that a debtor will admit that he intended to hinder, delay, or defraud his creditors, the debtor’s intent may be established by circumstantial evidence or inferred from the debtor’s course of conduct.” In re Jennings, 533 F.3d at 1339 (citation omitted); In re Krehl, 86 F.3d 737, 743 (7th Cir. 1996) (“Because direct evidence of a debtor’s intent usually will be unavailable, it may be inferred from the circumstances surrounding his objectionable conduct.”); Furr v. Lordy (In re Lordy), 214 B. R. 650, 664 (Bankr. S.D. Fla. 1997) (“The intent to hinder, delay or defraud can be inferred from extrinsic evidence.”); Taunt v. Patrick (In re Patrick), 290 B.R. 306, 310 (Bankr. E.D. Mich. 2003).

As discussed above, the Debtor substantially undervalued the Rolex. The Debtor testified that he listed the Rolex’s value at $250.00 based on his purchase price of $1,000.00 years earlier and his experience in selling used items where a seller receives only “25 to 30 percent of what the value is.” The Court considers it improbable that the Debtor, a sophisticated businessperson, believed in good faith that substantially discounting his purchase price of $1,000.00 would produce an accurate current value for the Rolex. In addition, the Debtor sold the Rolex without authorization from the Court or Trustee. The Debtor not only failed to advise the Court, the Trustee, and his attorney of the sale and receipt of proceeds, he also failed to provide any documentation of the sale. The Debtor further testified that he exerted no effort to obtain such documentation after this adversary proceeding was filed.

The Court finds unpersuasive the Debtor’s assertion that he sold the Rolex post-petition in December 2007 because he believed it was exempt. The Court notes that the claimed exemption for the Rolex was not determined until September 2008 upon entry of the Court’s Order Sustaining the Trustee’s Objection to Exemptions. Moreover, the Agreed Order extended the Trustee’s exemption objection deadline until December 31, 2007. The Court observes that the Debtor has experience with contested claimed exemptions. During the Debtor’s 1994 bankruptcy, the debtor litigated the value of his claimed exempt assets. The dispute was resolved by the Debtor paying the trustee an amount equal to the value in excess of his allowed exemptions. The Debtor’s wife also previously filed bankruptcy. Thus, the Debtor had knowledge of the rules that guide a debtor in bankruptcy. Therefore, the Court does not find credible the Debtor’s testimony that he sold the Rolex because he believed it was exempt.1

The Court concludes that the Trustee presented sufficient evidence to establish that the Debtor acted with the requisite actual intent to defraud the Trustee and creditors. As a result, the Trustee has sustained her burden for denial of the Debtor’s discharge pursuant to § 727(a)(2)(B). The burden now shifts to the Debtor to “present evidence that sufficiently explains why he should nevertheless receive a discharge.” In re Fasolak, 381 B.R. at 787 (citations omitted).

The Debtor articulated two reasons in an attempt to dissuade the Court from denying his discharge. First, the Debtor testified that the proceeds from the sale of the Rolex were necessary for “living expenses.” He further testified that “my feelings were that I, you know, needed to generate some income, and that’s one of the only things that we had.” However, the Debtor understood he listed over $7 million in debt and only $16,651.00 in assets, and consequently, the creditors’ claims would not be paid. He likewise understood that the proceeds of the Rolex may have gone towards payment of his creditors had he not sold it and spent the money. While the Court is sympathetic to the difficult situation debtors confront, debtors are not permitted to unilaterally dispose of assets of the estate. The Debtor appreciated the bankruptcy restrictions imposed upon the sale of the Rolex but nonetheless chose to sell the Rolex.

Second, the Debtor argued that the Trustee is responsible for the Debtor’s sale of the Rolex because she failed to inquire about the Rolex or demand the Debtor turn over the Rolex prior to the Rule 2004 examination. The Court finds the Debtor’s argument without merit. “Trustees are not expected to assume that honest debtors seeking a discharge and fresh start will violate the provisions of Section 727(a)(2)(B).” In re Bosket, 369 B.R. at 110.

The Court likewise rejects the Debtor’s affirmative defense of abandonment. The Debtor presented no evidence to suggest that the Trustee expressly or impliedly abandoned the Rolex. “[T]he party seeking to demonstrate abandonment bears the burden of persuasion.” Mele v. First Colony Life, 127 B.R. 82, 85 (D.D.C. 1991) (citations omitted). Moreover, in this case, “[m]ere inaction by the Trustee does not accomplish abandonment.” In re Prospero, 107 B.R. 732, 735 (Bankr. C.D. Cal. 1989) (citing In re Schmid, 54 Bankr. 78, 80 (Bankr. Or. 1985)) .

The Court concludes that the Debtor has not presented evidence that sufficiently explains why he should receive a discharge in spite of the evidence presented by the Trustee. Therefore, the Court holds that denial of the Debtor’s discharge is warranted under § 727(a)(2)(B) of the Bankruptcy Code.

3. 11 U.S.C. § 727(a)(4)(A)

Count two of the Complaint seeks denial of the Debtor’s discharge pursuant to § 727(a)(4)(A) on the grounds that the Debtor knowingly and fraudulently made a false oath by failing to disclose the Movado.2

Section 727(a)(4)(A) provides that:

(a) The court shall grant the debtor a discharge, unless —

(4) the debtor knowingly and fraudulently, in or in connection with the case —

(A) made a false oath or account;

11 U.S.C. § 727(a)(4)(A).

“Section 727(a)(4) was established to ensure that the trustee and the creditors would receive reliable information in order to assist the trustee in the administration of the estate.” In re Trafford, 377 B.R. at 393 (citing Discenza v. MacDonald (In re MacDonald), 50 B.R. 255 (Bankr. D. Mass. 1985)).

In order to meet the initial burden under § 727(a)(4)(A), the plaintiff must establish that: 1) the debtor made a material false oath, and 2) the false oath was made knowingly and fraudulently. Swicegood v. Ginn, 924 F. 2d 230, 232 (11th Cir. 1991); In re Unger, 333 B.R. at 465.

As to materiality of the false oath, the Eleventh Circuit has stated that “[t]he subject matter of a false oath is ‘material,’ and thus sufficient to bar discharge, if it bears a relationship to the bankrupt’s business transactions or estate, or concerns the discovery of assets, business dealings, or the existence and disposition of his property.” Chalik v. Moorefield (In re Chalik), 748 F.2d 616, 618 (11th Cir. 1984) (citations omitted); Miller v. Burns (In re Burns), 395 B.R. 756, 767 (Bankr. M.D. Fla. Aug. 8, 2008); Menotte v. Moore (In re Moore), 375 B.R. 696, 703 (Bankr. S.D. Fla. 2007); In re Lordy, 214 B.R. at 666. With respect to the first element, the Court concludes that the Debtor’s failure to disclose the Movado in his Schedules concerns the existence and disposition of his property, and thus, constitutes a material false oath.

As to knowing and fraudulent intent, because intent is difficult to prove by direct evidence, “[t]he circumstances surrounding the fact may warrant the inference that the debtor, in fact, committed willfully and knowingly a false oath.” In re Trafford, 377 B.R. at 394 (citing Dulbina v. Sklarin (In re Sklarin), 69 B.R. 949 (Bankr. S.D. Fla. 1987)). “It is without dispute that an occasional omission from schedules will seldom be accepted as a satisfactory basis to establish the claim of a false oath, and some innocent omissions due to oversight may be excused.” Id. (citing Boroff v. Tully (In re Tully), 818 F.2d 106 (1st Cir. 1987)); Jensen v. Slater (In re Slater), 318 B.R. 881, 888 (Bankr. M.D. Fla. 2004).

The evidence presented leads to the conclusion that the Debtor committed an innocent omission. The Debtor wore the Movado to the 2004 examination, which mitigates against an inference that the Debtor endeavored to conceal the asset from the Trustee and creditors. The Court finds credible the Debtor’s testimony that he “just forgot” the Movado and only remembered it upon the sale of the Rolex. At his 2004 examination, the Debtor testified that he purchased the Movado approximately five years ago and that he believed the Movado to be worth a mere $35.00. The Trustee testified that she was aware that the Movado might have limited value and presented no evidence to contradict the Debtor’s testimony as to the value of the Movado. Thus, with regard to the second element, the Court determines that the Trustee failed to meet her burden to establish that the Debtor knowingly and fraudulently failed to list the Movado on his Schedules.3

Therefore, the Court finds that denial of the Debtor’s discharge is not warranted under § 727(a)(4)(A) of the Bankruptcy Code.

CONCLUSION
For the reasons stated above, the Debtor’s discharge is denied under § 727(a)(2)(B) because the Debtor transferred, without notice or consent, the Rolex with intent to defraud the Trustee and creditors. However, the Court finds that denial of the Debtor’s discharge under § 727(a)(4)(A) is unwarranted because the Trustee failed to prove that the Debtor knowingly and fraudulently omitted the Movado from his Schedules.

ORDER
The Court, having considered the evidence presented at trial, the testimony of the witnesses, the argument of counsel, the applicable law, the submissions of the parties, and being otherwise fully advised in the premises, hereby

ORDERS AND ADJUDGES that:

1. The Debtor’s discharge is denied pursuant to Section 727(a)(2)(B) of the Bankruptcy Code.

2. Pursuant to Federal Rules of Bankruptcy Procedure 9021, a separate final judgment shall be entered by the Court contemporaneously herewith.

__________________

1Were the Court to consider credible the Debtor’s testimony that he believed his Rolex was exempt, the Court would find that the Debtor failed to exert the minimal effort to ascertain whether he could sell the Rolex. Even unsophisticated individuals are required to “comply with the most elementary steps to fulfill his obligation as a debtor in bankruptcy” and apply “the minimal effort necessary.” In re Davis, 363 B.R. at 620. In this case, the Debtor was represented by highly regarded counsel to whom the Debtor could have easily turned for advice.

2The Trustee’s post-trial pleadings raise the issue of whether the Debtor’s listed value of the Rolex implicates the false oath provision of § 727(a)(4)(A). However, in the Complaint, the Trustee did not assert a claim under § 727(a)(4)(A) on the grounds that the Debtor undervalued the Rolex. Furthermore, the Pretrial Order makes no mention of the claim. Rule 15(b) of the Federal Rules of Civil Procedure, which applies in adversary proceedings by virtue of Rule 7015 of the Federal Rules of Bankruptcy Procedure, permits “amendment of the pleadings to bring them in line with the evidence adduced at trial” with “the express or implied consent of the parties.” Int’l Harvester Credit Corp. v. E. Coast Truck, 547 F.2d 888, 890 (5th Cir. 1977). However, “the introduction of evidence relevant to an issue already in the case may not be used to show consent to trial of a new issue absent a clear indication that the party who introduced the evidence was attempting to raise a new issue.” Id. (citing Bettes v. Stonewall Ins. Co., 480 F.2d 92 (5th Cir. 1973); Wirtz v. Savannah Bank & Trust Co., 362 F.2d 857 (5th Cir. 1966) ; 6 CHARLES ALAN WRIGHT & ARTHUR R. MILLER, FEDERAL PRACTICE AND PROCEDURE § 1493 (1971) ; 3 MOORE’S FEDERAL PRACTICE, P 15.13(2) (1974)); Cioffe v. Morris, 676 F.2d 539, 541-42 (11th Cir. 1982) (“[I]mplied consent under Rule 15(b) will not be found if the defendant will be prejudiced; that is, the defendant had no notice of the new issue, if the defendant could have offered additional evidence in defense, or if the defendant in some other way was denied a fair opportunity to defend.”)

In the present case, the Debtor’s listed value of the Rolex was relevant to the Trustee’s claim that the Debtor transferred the Rolex with actual fraudulent intent under § 727(a)(2)(B). When the Trustee introduced the evidence, she did not indicate that she planned to use the evidence to support a claim under § 727(a)(4)(A) on the grounds that the Debtor undervalued the Rolex. Therefore, the Court declines to address the issue on its merits because the Debtor did not impliedly consent to trial of the new issue, and the Court deems it unnecessary given the Court’s conclusions under § 727(a)(2)(B).

3The Court notes that the Debtor’s contention that the Trustee abandoned the Movado when she failed to obtain it during the 2004 examination is without merit. The Debtor presented no evidence to suggest that the Trustee expressly or impliedly abandoned the Movado.

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