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Shin v. United States

United States District Court, D. Hawaii

September 1, 2016

PATRICK SHIN, Petitioner,
v.
UNITED STATES OF AMERICA, Respondent. Crim. No. 04-00150 SOM

          ORDER DENYING DEFENDANT'S PETITION FOR WRIT OF ERROR CORAM NOBIS, AND INVITING SUPPLEMENTATION OF ALTERNATIVE PETITION FOR WRIT OF AUDITA QUERELA

          Susan Oki Mollway United States District Judge

         I. INTRODUCTION.

         Defendant 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. Shin now seeks to vacate his conviction more than nine years after judgment was entered. Having long since paid his fine and completed his term of probation, he seeks a common law writ of coram nobis or audita querela.

         In his Verified Petition for Writ of Error Coram Nobis, or Alternatively, for Writ of Audita Querela, Shin argues that he has recently discovered exculpatory evidence that the Government should have disclosed to him before he entered his guilty plea. Specifically, Shin contends that, because the Government wrongfully withheld evidence that 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, his conviction should be vacated.

         This court denies Shin's petition for a writ of coram nobis. The court defers ruling on his petition for a writ of audita querela, giving him an opportunity to submit an optional supplemental memorandum regarding this alternative writ.

         II. BACKGROUND.

         At all 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. 91 in Crim. No. 04-00150 SOM, PageID # 248.

         In 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 # 250. 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 250-51.

         JHL anticipated that the unit prices would exceed JHL's actual costs. See id., PageID #s 253-54. 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 249-54.

         Once 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 253-54. 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.

         JHL 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 # 272. Wesley Choy, a mechanical engineer with the Navy's Engineering Department, questioned the costs, which he viewed as high. See id., PageID #s 259-60. 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 JHL's cost proposal. See id.

         On August 26, 2003, JHL submitted a second proposal for the reduced amount of $2, 205, 138. See id., PageID # 272. 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 two proposed subcontractors, HSI Electric, Inc., and Alfred Conhagen, Inc. See id.

         On September 4, 2003, Shin called HSI and asked it to increase its quote by $100, 000, but to invoice JHL the original amount without the $100, 000 markup. See ECF No. 64, ¶ 15. HSI contacted the FBI to inform it of Shin's request. See ECF No. 91, PageID # 264.

         As directed by the FBI, HSI then gave Shin the requested quote with the inflated price. See id., PageID # 265. 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 ECF No. 64, ¶ 17. Shin used white-out to alter the $114, 733 price on the July 2003 quote to $314, 733. See id.

         On September 4, 2003, Shin asked Conhagen to increase its quote by $180, 000, bringing Conhagen's subcontract amount from $377, 260 to $557, 260. Conhagen provided Shin with the requested quote for $557, 260. See id., ¶ 18.

         On September 8, 2003, Shin met with Choy and Ching to give them the altered HSI and Conhagen quotes. Shin ultimately submitted JHL's best and final offer of $2, 150, 000. See ECF No. 91, PageID # 270.

         On September 23, 2003, federal agents executed a search warrant at Shin's business office. See id., PageID # 266. 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 JHL's cost proposal and would have caused the Navy to question the legitimacy of the proposal. See 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.

         The 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 his way of recovering overhead and profit. See id.

         The Government charged Shin with having made a false statement to the Government. On April 21, 2004, pursuant to a memorandum of plea agreement, Shin pled guilty to that charge. See ECF No. 8. On March 8, 2006, Shin was sentenced to three years of probation, with twelve days of intermittent confinement, and a fine of $100, 000. See ECF No. 99.

         During 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., PageID #s 263-67. Shin contended that he had altered the subcontractor quotes only to recover a reasonable profit on the job. See id., PageID # 265. He denied any malicious intent, but acknowledged that the way he had handled the situation was wrong. See id., PageID # 298. This court determined that “there was clearly an intent to deceive, ” and called the offense a “dishonesty kind[] of crime[], ” see id., PageID # 294, 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., PageID # 278.

         Afer he 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 id., 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. Eventually, in approximately April 2014, Choy provided a typed, unsigned “clarification” statement regarding his role in the contracting process. See id., PageID # 272.

         Choy's “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 was not 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 ECF No. 91-2.

         In May 2015, Shin spoke with Choy regarding Choy's communications with “the Prosecutor and the Prosecutor's investigators.” See ECF No. 91, PageID # 276. Without telling Choy, Shin tape recorded the conversation. See ECF No. 102-3. 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 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 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 them. See id.

         On September 22, 2015, Shin moved for a writ of coram nobis or, in the alternative, audita querela. The motion sought (1) the vacating of Shin's federal criminal conviction on one count of False Statement pursuant to 18 U.S.C. § 1001(a)(3); and (2) leave to withdraw his prior guilty plea in this case. See id., PageID # 243.

         Shin filed a motion for leave to depose Choy and Ching. See ECF No. 105. This court denied Shin's discovery request to the extent it supported his petition for a writ of coram nobis, but noted that it was premature for Shin to seek discovery in aid of a writ of audita querela because a writ of audita querela is a remedy of last resort and his request for a writ of coram nobis was still pending. See ECF No. 117, PageID #s 600-01. This court thus deferred any ruling on Shin's discovery request insofar as it was brought in aid of obtaining a writ of audita querela. See id.

         III. ANALYSIS.

         A. Writ of Coram Nobis.

         The 1946 amendments to Federal Rule of Civil Procedure 60(b) expressly abolished several common law writs, including the writ of coram nobis. In United States v. Morgan, 346 U.S. 502 (1954), the Supreme Court held that district courts still retain limited authority to issue common law writs such as writs of coram nobis and audita querela in collateral criminal proceedings.

         These common law writs survive “only to the extent that they fill ‘gaps' in the current systems of postconviction relief.” United States v. Valdez-Pacheco, 237 F.3d 1077, 1079 (9th Cir. 2001). Such writs are not available when the claims raised would be cognizable in petitions under 28 U.S.C. § 2255.

         A writ of coram nobis is “a highly unusual remedy, available only to correct grave injustices in a narrow range of cases where no more conventional remedy is applicable.” United States v. Riedl, 496 F.3d 1003, 1005 (9th Cir. 2007). It is distinguishable from a habeas petition, which is available only when convicted defendants are in “custody.” See Hensley v. Municipal Court, 411 U.S. 345, 349 (1973); Jones v. Cunningham, 371 U.S. 236, 243 (1963). A writ of coram nobis allows a petitioner to attack a conviction when the petitioner has already finished his sentence and is no longer in custody. See McKinney v. United States, 71 F.3d 779, 781 (9th Cir. 1995) (citing Telink, Inc. v. United States, 24 F.3d 42, 45 (9th Cir. 1994)).

         To qualify for coram nobis relief, a petitioner must establish all of the following: (1) a more usual remedy is not available; (2) valid reasons exist for not having attacked the conviction earlier; (3) there are adverse consequences from the conviction sufficient to satisfy the case or controversy requirement of Article III; and (4) the error is of the most fundamental character. Hirabayashi v. United States, 828 F.2d 591, 604 (9th Cir. 1987). “Because these requirements are conjunctive, failure to meet any one of them is fatal.” Matus-Leva v. United States, 287 F.3d 758, 760 (9th Cir. 2002) (citing United States v. McClelland, 941 F.2d 999, 1002 (9th Cir. 1991)).

         Shin satisfies three of the four requirements for the issuance of a writ of coram nobis.[1]

         First, a more usual remedy is not available here. Hirabayashi, 828 F.2d at 604. Shin has completed his sentence and cannot seek relief under § 2255. See 28 U.S.C. § 2255 (providing that a “prisoner in custody . . . may move the court which imposed the sentence to vacate, set aside or correct the sentence” (emphasis added)).

         Second, Shin has suffered reputational, professional, and social consequences as a result of his criminal conviction. See ECF No. 91, PageID # 285. He states in his verified petition that he has lost business opportunities because of his conviction and that newspaper articles published as recently as August 2015 continue to refer to his felony conviction. See id., PageID # 297. The Ninth Circuit has “repeatedly reaffirmed the presumption that collateral consequences flow from any criminal conviction.” Hirabayashi, 828 F.2d at 606.

         Third, Shin has valid reasons for not having attacked his conviction earlier. Although a petition for a writ of coram nobis is not subject to a statute of limitations, the petitioner must show that there were valid reasons that the conviction was not attacked earlier. See id. at 604-05. This requirement upholds a court's gate-keeping in barring claims that are unjustifiably late. Shin's petition is based on allegedly exculpatory statements that Choy made to the Government, but that Shin only learned of during a conversation with Choy in May 2015. See id., PageID # 294. Shin filed his petition in September 2015. See ECF No. 91. These circumstances provide valid reasons for Shin's failure to file his petition earlier.

         The fourth factor requires an error of “the most fundamental character.” Matus-Leva, 287 F.3d at 760. A fundamental error is an error that renders the underlying proceeding itself irregular and invalid. See Morgan, 346 U.S. 502; Hirabayashi, 828 F.2d at 604; see also United States v. George, 676 F.3d 249, 258 (1st Cir. 2012) (“an error of the most ...


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