United States District Court, D. Hawaii
AMENDED ORDER DENYING DEFENDANT'S PETITION FOR
WRIT OF ERROR CORAM NOBIS; ORDER DENYING 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, which included twelve days of intermittent
confinement, and to a $100, 000 fine. Shin now seeks to
vacate his conviction more than ten years after judgment was
entered. Having long since paid his fine and completed his
term of probation and intermittent confinement, 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, filed on September
22, 2015, 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 the Government wrongfully
withheld evidence that a Navy engineer involved in the
contracting process could not have testified as to the
materiality of Shin's false statements. Shin says that,
because materiality is an essential element of the false
statement charge, his conviction should be vacated.
Shin's original materiality argument was couched in terms
of an alleged violation by the Government of its disclosure
obligation under Brady v. Maryland, 373 U.S. 83
(1963), Shin has, over time, refocused his materiality
analysis. In 2016, months after Shin had filed his Verified
Petition, the Supreme Court discussed the materiality
standard applicable to a False Claims Act charge in
Universal Health Services, Inc. v. United States ex rel.
Escobar, 136 S.Ct. 1989 (2016). Less than a month later,
the Ninth Circuit examined the materiality standard without
mentioning Escobar. Rehearing was sought, and, on
rehearing, the Ninth Circuit expressly considered
Escobar's materiality analysis. See United
States v. Lindsey (Lindsey I), 827 F.3d 865 (9th Cir.
2016), rehearing granted and opinion withdrawn by
854 F.3d 1047 (9th Cir. 2017); see also United States v.
Lindsey (Lindsey II), 850 F.3d 1009 (9th Cir. 2017).
This court gave the parties in the present case an
opportunity to discuss the recent materiality case law.
optional supplemental memoranda, Shin argues that
Escobar articulates a new standard of materiality
that should be retroactively applied to his circumstances,
and that Lindsey II confirms this. Particularly with
respect to his request for a writ of audita querela, Shin
says that, under Escobar, he could have raised a
defense to the false claim charge that he could not have
availed himself of at the time he pled guilty. Shin reads
Escobar as saying that, in the context of a false
claim charge, the relevant evidence concerns whether the
particular government decision-maker was affected by (or
would have been affected by) the false statement, not whether
the statement had the propensity to influence a decision.
That is, Shin contends that, under Escobar, a false
statement is material only if the particular government
official in issue subjectively relied on it (or would have
relied on it), and that materiality is not viewed
objectively. Shin adds that, under the new subjective
standard he says Escobar established, a jury would
have likely acquitted him of the false statement charge in
light of evidence that the Navy official with “ultimate
approving authority” for government contracts would
have approved the contract in issue even knowing that Shin
had made false statements.
Shin says that these arguments also apply to his petition for
a writ of coram nobis, he does not specifically analyze
Escobar or Lindsey II in the coram nobis
context, despite this court's invitation that he do so.
Instead, Shin asks this court to allow him to amend his
Verified Petition to include a request for coram nobis relief
based on Escobar. He signals to this court that, if
denied relief in the present order and if also denied a
chance to amend his petition, he will reserve these arguments
for a motion for reconsideration and an appeal.
court denies Shin's petition for a writ of coram nobis
and a writ of audita querela. The court also denies
Shin's motion to amend his Verified Petition to raise
Escobar in the coram nobis context. Having allowed
Shin to argue any impact Escobar or Lindsey
II may have on his coram nobis argument, this court
concludes that it may proceed to determine that impact on the
present record. This court further concludes that Shin is not
entitled to further discovery or a hearing on his petition.
present order replaces and supersedes this court's
earlier order denying coram nobis relief and reserving any
decision as to audita querela relief. That earlier order,
filed on September 1, 2016, preceded the issuance of the
Lindsey II opinion and the filing of additional
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 #
249. (All ECF and PageID references are to Crim No. 04-00150,
rather than to the companion civil case.)
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 # 250-51. 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 to cover
overhead and profit, thereby arriving at the contract cost.
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 zero percent coefficient and was awarded a zero
coefficient contract. See id.
awarded to a contractor, a JOC allows an agency to approach
and negotiate with the contractor directly, as construction
needs come up. See id., PageID # 249-54. 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 254-55. 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; ECF No. 100, PageID #
395. The costs were not broken down, and he could not tell
how the final number had been reached. See ECF No.
100, PageID # 395. Choy asked the contract administrator,
Annette Ching, to get subcontractor quotes from JHL to
substantiate JHL's cost proposal. See id.
August 26, 2003, JHL submitted a second proposal for the
reduced amount of $2, 205, 138. See id., PageID #s
395-96. The second proposal did not include either a line
item breakdown of costs or the requested subcontractor
quotes. See id., PageID # 396. Choy asked Ching to
get the subcontractor quotes from the two proposed
subcontractors, HSI Electric, Inc., and Alfred Conhagen, Inc.
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 id.; see also ECF No. 91,
PageID # 264.
directed by the FBI, HSI then gave Shin the requested quote
with the inflated price. See ECF No. 64, ¶ 17;
ECF No. 91, 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; ECF No. 91, PageID # 264-65. Shin used
white-out to alter the $114, 733 price on the July 2003 quote
to $314, 733. See ECF No. 64, ¶ 17.
September 4, 2003, Shin asked Conhagen to increase its quote
by $180, 000, bringing Conhagen's subcontract amount from
$377, 260 to $557, 260. See id., ¶ 18. Conhagen
provided Shin with the requested quote for $557, 260. See
September 8, 2003, Shin met with Choy and Ching to give them
the altered HSI and Conhagen quotes. See id., ¶
19; ECF No. 91, PageID # 264. Shin ultimately submitted
JHL's best and final offer of $2, 150, 000. See
ECF No. 64, ¶ 19; ECF No. 91, PageID # 269-70.
September 23, 2003, federal agents executed a search warrant
at Shin's business office. See ECF No. 91,
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. See ECF No. 1. On April 21, 2004,
pursuant to a plea agreement, Shin pled guilty to that
charge. See ECF No. 8. On March 8, 2006, Shin was
sentenced to three years of probation, which included twelve
days of intermittent confinement, and a fine of $100, 000.
See ECF No. 62, PageID #s 140-43.
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 ECF No.
99, PageID #s 337-40. Shin contended that he had altered the
subcontractor quotes only to recover a reasonable profit on
the job. See id., PageID #s 340-41. He denied any
malicious intent, but acknowledged that the way he had
handled the situation was wrong. See id., PageID #s
342-43, 372. This court determined that “there was
clearly an intent to deceive, ” see id.,
PageID # 352, and called the offense “one of these
dishonesty kinds of crimes, ” see id., PageID
# 368, 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.
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 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. Eventually, in approximately
April 2014, Choy provided Shin with 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, PageID # 307.
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 taped the
conversation. See ECF No. 102-3, PageID #s 470-91.
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 “put 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 “heard what they
wanted to hear to make their case”; and 4) a
declaration that the prosecuting authorities had had Choy
sign was “sneaky” and “twisted” 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., PageID # 601.
September 1, 2016, this court denied Shin's petition for
a writ of coram nobis and invited Shin to submit an optional
supplemental memorandum regarding his alternative request for
a writ of audita querela. See Order Denying
Defendant's Petition for Writ of Error Coram Nobis, and
Inviting Supplementation of Alternative Petition for Writ of
Audita Querela, ECF No. 126, PageID # 651. This court again
deferred any ruling on Shin's discovery request to the
extent it related to his request for a writ of audita
querela. See id.
optional supplemental memorandum argues that, in
Universal Health Services, Inc. v. United States ex rel.
Escobar, 136 S.Ct. 1989 (2016), the Supreme Court set
forth a new definition of materiality that is retroactive and
that provides Shin with a defense that was not available to
him at the time judgment was entered. See Shin's
Supplemental Memorandum Regarding His Motion for Writ of
Audita Querela and Motion to Amend Petition, ECF No. 135,
PageID #s 746-50. Shin asserts that, given this new
definition, his conviction should be vacated as defective.
See Id. Specifically, he contends that
Escobar creates a new subjective materiality
standard for false statement claims, replacing the former
objective materiality standard. See id., PageID #s
746-49. Shin says that, under this new standard, his lies
were immaterial if the Government would have awarded the
contract to him even knowing that his subcontractor
quotations were inflated. See id., PageID #s 746-47,
Government counters that Escobar did not change the
law relating to materiality and thus did not create a legal
defect in Shin's conviction. See
Government's Opposition to Shin's Motion for Writ of
Audita Querela, ECF No. 136, PageID # 757. The Government
contends that Escobar “simply applied the
accepted definition [of materiality] to a particular
context.” See id., PageID # 760.
responding to the Government's opposition, Shin submitted
a declaration by Robert Hokama, who allegedly had the
“ultimate” authority to approve the contract.
Hokama “would have approved the contract even if aware
of SHIN's alteration of the subcontractor bids.”
See Responding Memorandum Regarding Shin's
Motion for Writ of Audita Querela, ECF No. 139, PageID #s
776-77. Shin points to Hokama's statement as “very
strong evidence” under Escobar that Shin's
false statements were not material. See id., PageID
1997 to 2004, Hokama was the Director of Procurement
Operations Division at Pearl Harbor responsible for
contracting activity relating to the procurement for
construction and maintenance of naval facilities.
See Declaration of Robert T. Hokama, ECF No. 139-1,
PageID # 780. He supervised Annette Ching and was responsible
for negotiating and recommending the contract awarded to JHL
in 2003. See id., PageID # 781. Hokama suggests that
Ching did not follow certain procedures necessary to awarding
contracts and states that he was “the ultimate
decision-maker regarding whether to award the Contract or
not” to JHL and Shin. See id., PageID #s
781-82. Hokama further states,
I would have considered Shin's alteration of the
subcontractor quotes as his effort to put JHL's proposal
in a form appropriate for consideration and approval by the
Government considering the Government's choice of a JOC
for the Contract, so his alteration of the subcontractor
quotes would not have been material to me. This way, the
Contract would have been awarded at a fair price to both the
Government and JHL, and the funding for the Contract would
not have been lost.
. . .
[Choy's] Government Estimate was prepared with a contract
coefficient, and JHL's best and final offer, including
the altered subcontractor quotes, was very close to the
amount of the Government Estimate. This is also a reason why
the altered subcontractor bids, which contained amounts
covering overhead and profit because of the task order's
out-of-scope nature, would not be material to my decision to
award the Contract to JHL as its best and final offer.
See id., PageID #s 782-83.
November 9, 2016, this court stayed its ruling on the audita
querela issue pending the disposition of the rehearing motion
before the Ninth Circuit in United States v.
Lindsey. See ECF No. 146. Following the
issuance of the Lindsey II opinion, this court
invited the parties to file memoranda “addressing the
new Lindsey decision and its impact, if any on Mr.
Shin's petition (whether in the coram nobis or the audita
querela context, or both).” See ECF No. 150.
they had dueling positions as to Escobar, the
parties disagree on how to read Lindsey II.
According to Shin, a “subjective standard should now
apply to ‘materiality'” pursuant to
Lindsey II. ECF No. 157, PageID # 865. Shin says
that Escobar stands for the proposition that
“if the Government pays a particular claim in
full despite its actual knowledge that certain requirements
were violated, that is very strong evidence that those
requirements are not material.” Id., PageID #
866. Because Hokama would have approved JHL's proposal
even had he known of the inflated subcontractor quotes, Shin
says his conviction should be vacated. Id., PageID
#s 865, 870-72.
submits yet another declaration from Hokama, this one noting
that Hokama's certificate of appointment “stated no
limitation on the scope of [his] authority, other than
limitations contained in applicable law or regulation.”
See Supplemental Declaration of Robert T. Hokama,
ECF No. 157-1, PageID # 873. As the “designated
contracting officer with highest authority for NAVFAC,
” he says that he “enjoyed a wide latitude to
exercise business judgment.” Id., PageID #
874. Hokama further states, “The U.S. Government is not
one monolithic entity which decides contracting issues
uniformly across every aspect of the procurement
process.” Id. He “would have approved of
the JHL Pump 2 contract even with knowledge that Mr. SHIN
provided altered subcontract bids and would not have
considered the alterations by Mr. Shin
‘material'.” Id., PageID # 875.
Government points out that Shin offers no evidence of a
systemic practice of ignoring the use of altered documents or
a contractor's stated costs in determining whether bid
prices are fair and reasonable. ECF No. 156, PageID # 861.
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, 511 (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.
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).
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).
Shin Satisfies the First Three of the Four Requirements for
the Issuance of a Writ of Coram Nobis.
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
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 affirmed 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 ECF No. 91,
PageID #s 294-95. Shin filed his petition in September 2015.
See id., PageID # 305. To the extent Shin relies on