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United States v. Penitani

United States District Court, D. Hawaii

March 13, 2018

UNITED STATES OF AMERICA, Plaintiff,
v.
JOHN PENITANI, Defendant.

          ORDER DENYING MOTION TO VACATE, SET ASIDE, OR CORRECT A SENTENCE BY A PERSON IN FEDERAL CUSTODY UNDER 28 U.S.C. § 2255; ORDER GRANTING CERTIFICATE OF APPEALABILITY

          Susan Oki Mollway United States District Judge.

         I. INTRODUCTION.

         Defendant John Penitani was convicted of drug-related crimes in two cases and sentenced to a total of 168 months of imprisonment, 5 years of supervised release, and a $200 special assessment. Penitani unsuccessfully appealed and then timely moved for relief under 28 U.S.C. § 2255 in his two cases. Penitani then submitted numerous handwritten letters. The court issues a single ruling applicable to all his motions.

         Although Penitani initially raised numerous claims in support of his motions, he ultimately restricts himself to arguing that his former counsel, Myles S. Breiner, had a conflict of interest based on Breiner's representation of both Charles Foster and Penitani, and that the Assistant United States Attorney (“AUSA”) should have informed the court about that alleged conflict of interest. The court denies the motions.

         II. THE ISSUES BEFORE THIS COURT HAVE BEEN SIGNIFICANTLY NARROWED.

         After filing his § 2255 motions, Penitani himself mailed numerous letters to this court. This court appointed counsel for Penitani and asked counsel to clarify what issues Penitani wanted the court to consider. The court told Penitani that any issue not identified in the requested response would be deemed waived. See ECF No. 249, 251.[1]

         On July 7, 2017, Penitani identified as issues for the court to adjudicate alleged ineffective assistance of counsel by Myles S. Breiner based on (1) Breiner's alleged conflicts of interest relating to his representation of Charles Foster, Subrina Toomey, and Penitani; (2) Breiner's failure to challenge the presentence investigation report; (3) Breiner's failure to insist that certain alleged plea agreement terms be in writing; and (4) Breiner's bargaining away of Penitani's appellate rights. Penitani additionally identified alleged prosecutorial misconduct by AUSA Chris Thomas based on (1) Thomas's failure to move to disqualify Breiner because of Breiner's conflicts of interest; (2) Thomas's alleged misrepresentations as to the whether Penitani would receive a sentence of less than 10 years; and (3) Thomas's alleged use of information in violation of a proffer agreement. Finally, Penitani identified a breach of an alleged agreement that a sentence of less than 10 years be sought, judicial misconduct, [2] and ineffective assistance by appellate counsel Pamela O'Leary Tower. See ECF No. 255.

         After multiple hearings and live testimony with respect to Penitani's motions, the court asked for supplemental closing argument briefs, telling the parties that any issue not raised in the supplemental brief would be deemed waived:

[Y]ou are limited in your closing argument briefs to issues that were raised in your list of issues, but you are not required to rely on all issues raised in your list of issues[. I]f you do not in your closing argument briefs mention an issue that was on your list, I will deem that issue waived.
Mr. Penitani, do you understand what I'm saying? I'm kind of trying to figure out what really do I need to address. And there may--there's already been a narrowing because I made your lawyer give me a list. If it's not on the list, it's not an issue. He gets to write briefs now. If it's not in the brief, even if it's in your list, I'm not going to consider it to be something I need to decide. Do you understand?
THE DEFENDANT: Yeah, most of it.
THE COURT: What don't you understand?
THE DEFENDANT: I mean I understand.
THE COURT: . . . in any event, whatever's in the brief[, ] that's all that I'm going to consider. Do you understand?
THE DEFENDANT: Yes.

         Transcript of Proceedings (Dec. 19, 2017) at 38-39, ECF No. 297, PageID #s 1889-90.

         In his closing argument of February 9, 2018, ECF No. 300, Penitani limited his discussion to whether Breiner had a conflict of interest based on his representation of both Penitani and Charles Foster, and whether AUSA Thomas should have brought that conflict of interest to the court's attention. This court deems all other issues raised by Penitani in support of his § 2255 motions to have been waived.

         III. FACTUAL BACKGROUND.

         On November 28, 2017, Drug Enforcement Administration Special Agents Clement B. Sze and Lauren A. Carney, Federal Bureau of Investigation Special Agent Grant Knorr, Breiner, and Lani Nakamura, Esq., testified. See ECF No. 291. On November 29, 2017, Breiner and Thomas testified. See ECF No. 292. On December 1, 2017, Penitani testified. See ECF No. 293. Most of the testimony was unrelated to the issues now remaining before this court. Unless specifically noted in the present order, each witness testified credibly, although witnesses' memories sometimes had faded.

         Breiner began representing Charles Foster in February 2013, when Foster was in state court on drug charges. When charges related to the same drugs were brought in federal court, Breiner continued to represent Foster with respect to his federal drug charges. See Crim. No. 13-00219, ECF No. 7; see also Declaration of Attorney Myles S. Breiner ¶ 2, ECF No. 278, PageID # 1771 (“I represented Charles Foster in the case of United States vs. Charles Foster, Cr. No. 13-00219 DKW . . . from February 2013 through August 7, 2013.”); Transcript of Proceedings (Nov. 28, 2017) at 92, ECF No. 305, PageID # 2015. A federal court indictment of Foster was filed on March 6, 2013. See Crim. No. 13-00219, ECF No. 24. It charged that, on or about February 14, 2013, Foster, John Garcia IV, and Chrystyan Burke possessed methamphetamine with intent to distribute (Count 1); and possessed cocaine with intent to distribute (Count 2). It also charged Foster and Garcia with carrying a firearm during and in relation to the drug trafficking crimes (Count 3). Id. That case, assigned to Senior District Judge Helen Gillmor, was the first of three federal criminal cases relevant to the present order.

         Breiner says that, “[a]t no time during my representation of Foster was the name of John Penitani ever brought up, disclosed by Foster or discussed in any way.” See Breiner Decl. ¶ 4, ECF No. 278, PageID # 1772; accord Transcript of Proceedings (Nov. 29, 2017) at 107, ECF No. 306, PageID # 2198 (“During the representation of Charles Foster by Myles Breiner, from February until the time that he was discharged as an attorney, or terminated his representation of Mr. Penitani, Mr. Penitani's name was not raised a single time.”)

         Breiner testified that, after Penitani's arrest, Penitani gave statements to the Government on May 14 and 15, 2013, without legal representation. Transcript of Proceedings (Nov. 28, 2017) at 94, ECF No. 305, PageID # 2017. On May 23, 2013, Penitani was indicted along with Hien Nguyen and Sugalu Galu and charged with drug-related crimes, including possession of and conspiracy to possess with intent to distribute more than 50 grams of methamphetamine, its salts, isomers, and salts of its isomers in violation of 21 U.S.C. §§ 841(a)(1) and 841(b)(1)(A). See Crim. No. 13-00514 SOM, ECF No. 17. The May 2013 indictment, filed in the second federal criminal case relevant here, did not mention Foster. Breiner first appeared on behalf of Penitani at his detention hearing of May 21, 2013. See Crim. No. 13-00514 SOM, ECF No. 14.

         About a month later, on June 20, 2013, in the third federal criminal case relevant here, Penitani faced another indictment with drug charges, this one naming him along with Siaosi Mafileo, Mukusi Penitani, Salvador Maciel, Michael Coleman, Jacob Del Mundo Faagai, Michael Nguyeun, Julius Mitchell, Keschan Taylor, Robert Akolo, and Donald Seals. See Crim. No. 13-00653 SOM, ECF No. 1. This indictment charged Penitani with possession of and conspiracy to distribute and possess with intent to distribute more than 50 grams of methamphetamine, its salts, isomers, and salts of its isomers in violation of 21 U.S.C. §§ 841(a)(1) and 841(b)(1)(A), and included two counts referring to 5 grams or more of the drug. Id. Breiner appeared on behalf of Penitani at his initial appearance in this case on June 27, 2013. See Crim. No. 13-00653 SOM, ECF No. 36. A Superseding Indictment charging the same defendants with similar drug crimes was filed on August 22, 2013. See Crim. No. 13-00653 SOM, ECF No. 88.

         AUSA Thomas prosecuted all three cases. See Transcript of Proceedings (Nov. 29, 2017) at 24, ECF No. 306, PageID # 2115.

         Breiner conceded that there was some overlap in time with respect to his representation of Foster and Penitani. Transcript of Proceedings (Nov. 28, 2017) at 106, ECF No. 305, PageID # 2029. That is, Breiner was representing Foster when he began representing Penitani in May 2013. Breiner did not move to withdraw as Foster's counsel until July 26, 2013. See Crim. No. 13-00219, ECF No. 54. On August 5, 2013, a hearing was held in Foster's federal case on the motion to withdraw as counsel. The court orally granted the motion. Id., ECF No. 56. A written order granting the withdrawal was filed on August 7, 2013. Id., ECF No. 58.

         Breiner testified that, after Penitani was arrested, Penitani made inculpatory statements to the Government before he was represented by an attorney. Most of the co-defendants in the later federal case naming him cooperated against him. Penitani's focus was on reducing his sentence, not asserting his innocence. See Transcript of Proceedings (Nov. 28, 2017) at 95-98, ECF No. 305, PageID #s 2018-21; Transcript of Proceedings (Nov. 29, 2017) at 15, 23, 28, ECF No. 306, PageID # 2106, 2114, 2119.

         To that end, Penitani participated in a number of meetings, or “debriefings, ” with Government agents to provide them with information concerning his drug distribution activities. AUSA Thomas says that Penitani had seven debriefings with Government agents at which he was represented by Breiner or his associate, Lani Nakamura, plus two meetings before Breiner began representing him. Special Agent Sze put the total number of debriefings at eight, with Breiner or Nakamura being present at six of the eight. Penitani testified that there were more than five meetings and possibly more than ten meetings. Breiner testified that there were eleven or twelve debriefings. Transcript of Proceedings (Nov. 29, 2017) at 9, ECF No. 306, PageID # 2100.

         Although Breiner and AUSA Thomas at first told the court that Penitani began discussing Foster in a debriefing in May 2014, they both corrected themselves, testifying that Penitani began discussing Foster on October 1, 2013. Transcript of Proceedings (Nov. 29, 2017) at 24, 96, ECF No. 306, PageID #s 2115, 2187; see also ECF No. 279, PageID # 1801 (Report of Investigation prepared by Special Agent Clement B. Sze on October 2, 2013, memorializing that Penitani told Government agents on October 1, 2013, that Penitani had supplied Foster with both methamphetamine and cocaine); see also Transcript of Proceedings (Nov. 28, 2017) at 16-17, ECF No. 305, PageID #s 1939-40 (Special Agent Sze testifying about the first time Penitani discussed Foster). Breiner and Nakamura were present at the debriefing on October 1, 2013. Transcript of Proceedings (Nov. 28, 2017) at 20, ECF No. 305, PageID # 1943.

         On October 1, 2013, Penitani was shown pictures of various people and identified Foster as a person to whom he had been selling drugs. Breiner said he was “surprised” by that connection. Transcript of Proceedings (Nov. 29, 2017) at 18-19, ECF No. 306, PageID #s 2109-10; ECF No. 279, PageID # 1801. Breiner believed that he did not have a conflict of interest at that time because the drugs Penitani was talking about were not the drugs involved in the charges against Foster. Transcript of Proceedings (Nov. 29, 2017) at 25, ECF No. 306, PageID # 2116.

         Breiner testified that, in a debriefing on May 16, 2014, Penitani further discussed having supplied Foster with drugs. Id. at 21-22, PageID #s 2112-13. Penitani testified about Foster to a grand jury. Transcript of Proceedings (Nov. 29, 2017) at 27, ECF No. 306, PageID # 2118. On May 22, 2014, a Superseding Indictment was filed in Foster's case. See Id. at 26, PageID # 26; see also Crim. No. 13-00219 DKW, ECF No. 99, PageID # 239 (charging Foster, Garcia, and Nguyen with conspiring to commit drug crimes with Sheldon Koyanagi and Penitani).

         As of May 2014, Breiner still believed that he had no conflict of interest, reasoning that he no longer represented Foster and that Penitani was describing drug deals unrelated to the charges Breiner had represented Foster on. Transcript of ...


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