United States District Court, D. Hawaii
ORDER DENYING DEFENDANT'S PETITION FOR WRIT OF
ERROR CORAM NOBIS, AND INVITING SUPPLEMENTATION OF
ALTERNATIVE PETITION FOR WRIT OF AUDITA QUERELA
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. 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.
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.
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.
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 #
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.
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.
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.
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
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
“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.
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.
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.
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.
Writ of Coram Nobis.
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
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.
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)).
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
satisfies three of the four requirements for the issuance of
a writ of coram nobis.
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)).
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.
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.
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 ...