United States District Court, D. Hawaii
ORDER REGARDING DISCOVERY APPEALS
Oki Mollway United States District Judge
Patrick Shin pled guilty with a plea agreement to having made
a false statement to the Government in violation of 18 U.S.C.
§ 1001. He was sentenced in 2006 to three years of
probation and a fine. He has already completed his term of
probation and paid the applicable fine. Shin now challenges
his conviction, over nine years after it was imposed, through
the common law writs of coram nobis and audita querela.
Verified Petition for Writ of Error Coram Nobis, or
Alternatively, for Writ of Audita Querela, Shin argues that
recently discovered exculpatory evidence should have been
disclosed by the Government to Shin before he entered his
guilty plea. Specifically, Shin contends that the Government
wrongfully withheld evidence that Wesley Choy, a Department
of the Navy engineer involved in the contracting process,
could not have testified as to an essential element of the
false statement charge. Shin says that his conviction should
therefore be vacated.
the court are appeals from discovery orders by the Magistrate
Judge. Shin had contacted the Government about deposing Choy,
as well as another Navy employee involved in the contracting
process, Annette Ching. When the Government declined to
permit the depositions, Shin moved for a court order
permitting them. The Magistrate Judge issued a minute order
granting Shin’s request to depose Choy, but denying him
leave to depose Ching.
Government appealed the Magistrate Judge’s ruling as to
Choy. Shin asked the Magistrate Judge to reconsider the
denial of the request to depose Ching. The Magistrate Judge
denied reconsideration, and Shin filed his own appeal as to
reasons discussed below, this court affirms the Magistrate
Judge’s denial of leave to take Ching’s
deposition, but reverses the grant of leave to take
times material to the conviction, Shin was authorized to act
as an agent on behalf of JHL Construction, Inc., a general
contracting company owned by Shin’s nephew, James Lee.
See ECF No. 1, PageID # 8.
2003, JHL was awarded a job order contract
(“JOC”) by the Navy. JOCs are based on pre-priced
construction tasks. The prices typically come from a unit
price book. See id. The Navy’s unit price
books list average costs that might be higher or lower than
the actual costs in a particular local economy. See
id., PageID # 10. Using the unit prices relied on by a
customer such as the Navy, a contractor proposes an
appropriate coefficient to apply to the unit prices in order
to cover overhead and profit, thereby arriving at the
contract cost. See id., PageID #s 10-11.
anticipated that the unit prices would exceed JHL’s
actual costs. See id., PageID #s 12-13. Because JHL
would make a profit without adding any coefficient, JHL
proposed a 0% coefficient and was awarded a zero coefficient
contract. See id., PageID #s 8-13.
awarded to a contractor, a JOC allows an agency to approach
and negotiate with the contractor directly, as construction
needs come up. See id. In August 2003, the Navy
asked JHL to provide a proposal under the JOC for the
overhaul of Pump # 2, Drydock # 4, at Pearl Harbor Naval
Shipyard. See id., PageID #s 13-14. The Navy was
under pressure to award a number of work orders by the end of
the Government’s fiscal year (September 30, 2003), and
assigning the Pump # 2 project to JHL’s JOC was seen as
a quick way to use current year funding. See id.
provided a proposal for $2, 360, 153, which was forwarded to
the Navy’s Engineering Department for a technical
review of the costs. See id., PageID # 31. Wesley
Choy, a mechanical engineer with the Navy’s Engineering
Department, questioned the costs, which he viewed as high.
See id., PageID #s 18-19. The costs were not broken
down, and he could not tell how the final number had been
reached. See id. Choy asked the contract
administrator, Annette Ching, to get subcontractor quotes
from JHL to substantiate the proposal costs. See id.
August 26, 2003, JHL submitted a second proposal for the
reduced amount of $2, 205, 138. See id., PageID #
31. The second proposal did not include either a line item
breakdown of costs or the requested subcontractor quotes.
Choy asked Shin for the subcontractor quotes from the
proposed subcontractors, HSI Electric, Inc., and Alfred
Conhagen, Inc. See id.
September 4, 2003, Shin called HSI and asked it to mark up
its quote by $100, 000, but to invoice JHL the original
amount without the $100, 000 markup. See Crim. No.
04-00150, ECF No. 64, ¶ 15. HSI contacted the FBI to
inform it of Shin’s request. See ECF No. 1,
PageID # 23.
directed by the FBI, HSI then gave Shin the requested quote
with the inflated price. See id., PageID # 24.
However, instead of submitting this quote to the Navy, Shin
submitted HSI’s quote from July 10, 2003, which
concerned work on Pump # 1. See Crim. No. 04-00150,
ECF No. 64, ¶ 17. Shin used white-out to alter the $114,
733 price on the 2003 quote to $314, 733. See id.
September 4, 2003, Shin asked Conhagen to increase its quote
by $180, 000, bringing the contract amount from $377, 260 to
$557, 260. Conhagen provided Shin with the requested quote
for $557, 260. See id., ¶ 18.
September 8, 2003, Shin met with Choy and Ching, providing
them with the altered quotes from HSI and Conhagen and
ultimately submitting JHL’s best and final offer of $2,
150, 000. See ECF No. 1, PageID # 29.
September 23, 2003, federal agents executed a search warrant
at Shin’s business office. See id., PageID #
25. Shin confessed at that time to having submitted altered
and inflated figures for the Pump # 2 job, explaining that
the real subcontractor quotes would not have supported the
cost proposal and would have caused the Navy to question the
legitimacy of the proposal. See Crim. No. 04-00150,
ECF No. 64, ¶ 20. He said that, while Conhagen had
provided an inflated quote as he had requested, HSI’s
failure to do so right away had caused him to doctor
HSI’s quote from a previous job. See id.
Pump # 2 project did not involve pre-priced tasks listed in
the Navy’s unit book. For that reason, performing work
on Pump # 2 under JHL’s zero coefficient JOC did not
allow JHL to recover any overhead or profit. Shin said the
inflated subcontractor quotes were requested as a way to
provide for overhead and profit. See id.
Government charged Shin with making a false statement to a
federal official. On April 21, 2004, pursuant to a memorandum
of plea agreement, Shin pled guilty to having made a false
statement to the United States. See Crim. No.
04-00150, ECF No. 8. On March 8, 2006, Shin was sentenced to
three years of probation, with twelve days in intermittent
confinement, and a fine of $100, 000. See Crim. No.
04-00150, ECF No. 99.
sentencing proceedings, Shin argued that the Pump # 2 job was
not pre-priced and therefore had been improperly assigned
under JHL’s zero coefficient JOC, depriving JHL of a
chance to recover overhead and profit. See id., Page
#s 22-26. Shin contended that he had altered the
subcontractor quotes only to recover a reasonable profit on
the job. See id., Page # 24. He denied any malicious
intent, but acknowledged that the way he had handled the
situation was wrong. See id., Page # 57. This court
determined that “there was clearly an intent to
deceive, ” and called the offense a “dishonesty
kind of crime, ” see id., Page # 53, but
imposed a sentence that reflected the court’s
determination that the Government had failed to prove that
Shin had intended to cause a loss. See id., Page #
was sentenced, Shin reached out to Choy several times to talk
about Choy’s role in the prosecution and to ask him for
a written statement. See Crim. No. 04-00150, ECF No.
91, PageID # 271. Choy originally said that Government
lawyers had told him not to provide any such written
statement without approval from the U.S. Attorney’s
Office. See id., PageID #s 271-72. Ultimately, in
approximately April 2014, Choy provided a typed, unsigned
“clarification” statement regarding his role in
the contracting process. See id., PageID # 272.
“clarification” statement includes the following
points: 1) he recalled having stated at a meeting with Shin
in 2003 that he understood that Shin needed to
“roll” overhead and profit into the line items,
given the zero coefficient contract, but that that was a
contractual rather than technical issue; 2) imposing a zero
coefficient contract on JHL would not be fair or reasonable;
3) Choy was surprised to hear that the project had a zero
coefficient; and 4) Choy had turned the issue over to the
contracting officer as the person authorized to resolve the
matter. See Crim. No. 04-00150, ECF No. 91-2.
2015, Shin spoke with Choy regarding Choy’s
communications with “the Prosecutor and the
Prosecutor’s investigators.” See Crim.
No. 04-00150, ECF No. 91, PageID # 276. Unbeknownst to Choy,
Shin tape recorded the conversation. See ECF No.
12-3. When Shin asked Choy whether he had communicated to the
Government personnel any of the points made in his April 2014
“clarification” statement, Choy allegedly stated
that he had told the Government personnel (i.e., “the
Prosecutor and the Prosecutor’s investigators”)
that he did not have the authority to decide whether JHL
needed to be awarded extra money in the zero coefficient
contract to cover its legitimate and reasonable overhead and
profit. See Crim. No. 04-00150, ECF No. 91, PageID
#s 277-78. Choy also allegedly told Shin: 1) the prosecuting
authorities “point[ed] the gun” on him regarding
his authority to decide the zero coefficient issue; 2) the
prosecuting authorities “hid” the fact that Choy
was not authorized to deal with the zero coefficient issue;
3) the prosecuting authorities only “hear what they
want to hear . . . to make their case”; and 4) the
declaration that the prosecuting authorities had Choy sign
was “sneaky” and “twist[ed]” the
facts he had given the Government personnel. See id.
September 22, 2015, Shin moved for a writ of coram nobis or,
in the alternative, audita querela to: 1) vacate Shin’s
federal criminal conviction on one count of False Statement
pursuant to 18 U.S.C. § 1001(a)(3); and 2) grant Shin
leave to withdraw his prior guilty plea in this case. See
id., PageID # 243.
noted earlier, Shin moved for leave to take the depositions
of Choy and Ching in aid of supporting his request for a writ
of coram nobis or audita querela. See ECF No. 14.
Before the Government could respond to the motion for leave
to take the depositions, the Magistrate Judge issued a minute
order granting Shin’s request to depose Choy, but
denying his request to depose Ching. See ECF No. 15.
The Magistrate Judge explained, “Based on the factual
issues raised in the United States’ Opposition,
Petitioner Patrick Shin has demonstrated good cause to allow
him to take the deposition of Wesley Choy. The Court finds
that Petitioner Patrick Shin has failed to demonstrate good
cause to take the deposition of Annette Ching.” See
Government appealed the Magistrate Judge’s grant of
leave to depose Choy. See ECF No. 17. Shin sought
reconsideration of the denial of his request to depose Ching.
The Magistrate Judge denied Shin’s reconsideration
motion, see ECF No. 21, and Shin appealed the denial
of leave to depose Ching, see ECF No. 23.
sought discovery in connection with both his request for a
writ of coram nobis and his request for a writ of audita
querela. See ECF No. 1. However, as Shin is aware, a
writ of error audita querela is a writ of last resort
available only when all other post-conviction remedies have
been exhausted. See United States v. Valdez-Pacheco,
237 F.3d 1077, 1080 (9th Cir. 2001); see also United
States v. Baptista, No. CR 10-00050 PJH, 2013 WL
4014965, at *3 (N.D. Cal. Aug. 5, 2013). Shin seeks a writ of
audita querela only as an alternative to a writ of coram
nobis. See ECF No. 1. Because Shin’s request
for a writ of coram nobis is still pending, it is premature
at this point for Shin to seek discovery in aid of a writ of
audita querela. Accordingly, this court addresses
Shin’s discovery request in the context of only his
request for a writ for coram nobis.
Appeal of a Nondispositive Matter.
to 28 U.S.C. § 636(b)(1) and Local Rule 74.1, a party
may appeal to a district judge any pretrial nondispositive
matter determined by a magistrate judge. Under 28 U.S.C.
§ 636(b)(1)(A), a magistrate judge’s order may be
reversed by a ...