Petition for Rehearing — John Ching En Lee, Petitioner v. United States

Supreme Court briefMay 3, 2021

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No. 20-1321

IN THE SUPREME COURT OF THE UNITED STATES

JOHN CHING EN LEE

Petitioner

UNITED STATES OF AMERICA,

Respondent

ON PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

PETITION FOR REHEARING

John Ching En Lee

Pro Se Petitioner

1750 Toyon Drive

Concord, CA 94520

(415)819-3635

shuehuapiao@hotmail.com

RECEIVED

MAY 1 0 2021

SUPl^lMEFCo5R<T~n"K

PETITION FOR REHEARING

Pursuant to Supreme Court Rule 44, this petition is filed within 25 days of this

Court’s decision in this case. Petitioner respectfully petitions for rehearing of the

Court’s decision issued on April 19, 2021, John Ching En Lee v. United States of

America, No. 20-1321, denying a Certificate of Appealability.

This case involves Petitioner’s wrongful conviction under 18 USC 1001, for

allegedly mating a false statement to government agents.

REASONS FOR GRANTING THE PETITION

(1) Denial of this petition will set a Conflicting Case Precedent i.e., a

certificate of appealability can be denied even after demonstrating a substantial

showing of the denial of a constitutional right, contrary to this Court’s

holding in Miller-El v. Cockrell, 537 US 322, (2) Petitioner has made the requisite

showing for a Certificate of Appelability, because Petitioner was denied Due

Process under the Due Process Clause of the Constitution, i.e., the Government

never proved beyond a reasonable doubt the elements of Falsity, Materiality, Intent.

STATEMENT OF THE CASE AND FACTS

Petitioner took out a bank loan in August 2006 to help wife to start a

massage therapy business. In March 2008, Petitioner’s wife and 2 other girls were

arrested for alleged solicitation of prostitution. Wife was never convicted and the

other 2 girls were never prosecuted. Wife received 6 months diversion in June 2009,

hut diversion was terminated early in November 2009, after only 5 months, and

wife became a naturalized U.S. citizen in June 2010.

Agent John Henderson and Agent Richard Fuentes from the Office of Inspector

General came to interview Petitioner in August 2009. There was No video tape,

No audio tape, No Q&A, No signed sworn statement by Petitioner for the

interview. Agents claimed that Petitioner denied having provided start-up funding

to wife’s business during the August 2009 interview. This gave rise to Count 1 of

the November 2015 indictment. There was also a second count in the November

2015 indictment. However, Petitioner was acquitted of that count after a Rule 29

motion hearing and will not be discussed here. An appeal was filed with the 9th

Circuit but was denied in June 2018. A Petition for Writ of Certiorari was filed and

denied by the U.S. Supreme Court in February 2019. A 2255 motion was filed with

the District Court in October 2018 but was denied in August 2019 and District

Court also refused to issue a certificate of appeal ability. A request for certificate of

appealability was filed with the 9th Circuit in October 2019 but was denied on

December 14, 2020. A motion to reconsider the denial was filed with the 9th Circuit

and was denied on January 14, 2021. A petition for writ of certiorari was filed with

this Court but was denied on April 19, 2021.

I. (A) AGENTS’ TRIAL TESTIMONIES DO NOT SHOW PETITIONER WAS

ASKED ABOUT START-UP FUNDING DURING THE 2009 INTERVIEW.

• It must first be pointed out that the Primary Job of Agent

John Henderson at the interview was to Take Notes,

besides Being a Witness. (TR 299, Lines 2-10).

• Agent Fuentes contends he asked Petitioner several times

about funding (TR 273, Lines 13-15).

• Agent Fuentes claimed that Petitioner’s answers about funding

“varied” each time (TR 273, Lines 19-21).

• Agent Henderson first said that Agent Fuentes asked Petitioner

the funding question several times (TR 289, Lines 14-16 ).

• Agent Henderson then impeached hoth himself and Agent

Fuentes by saying he ONLY REMEMBERED Agent Fuentes

ASKING THE FUNDING QUESTION 1 TIME (TR 316, Lines 1519).

• Agent Henderson said he DID NOT KNOW EXACTLY WHAT

FUNDING QUESTION Agent Richard Fuentes asked because HE

DID NOT RECORD the questions (TR 316, Lines 20-22).

• Agent Henderson also stated, “every time he (Agent Fuentes)

asked a question about their financial arrangement, I WOULD

CONSIDER that part of asking about how you fund—IF YOU

FUNDED IT” (TR 315, Line 15-17).

I. (B) PETITIONER NEVER MADE A FALSE STATEMENT ACCORDING TO

AGENT HENDERSON’S TRIAL TESTIMONY.

The government’s allegation that Petitioner made false statement was actually

Agent Henderson’s own Speculation/Conclusion after hearing Petitioner’s

response of not sharing money with wife.

• And in your handwritten notes, if you can turn to the second page,

that’s Government Exhibit 55, the bottom Bates Number says

JL001014. (TR 302, lines 4-6). And the entirety of the

statement reads “Not Fund Any of It”; is that right? “That’s

correct”. (TR 302, Lines 11-13).

• Did you see any comments there about Mr. Lee’s funding of

the business? “Yeah, I would refer to the last two digits, 16, “not

share money, no income, her money - “her own money “I am

sorry.” (TR. 303, Lines 6-10).

• It doesn’t say anything about whether he funded her business;

correct? “I think the “not share money would be included in

that”. (TR 303, Lines 14-16).

• How so? “If they are not sharing money, that means he is

not sharing the money, “GIVING HER CAPITAL TO

IMPROVE THE BUSINESS, OPEN IT, or SOMETHING

LIKE THAT.” (TR 303, Lines 17-20).

• So what you just said is a “SPECULATION” about what that

note might have meant? TR 303, Lines 24-25. “It was about

money. That’s it.” (TR 304, Line 1).

I. (Cl GOVERNMENT DID NOT PROVE THE ELEMENT OF MATERIALITY

Both Agent Fuentes and Agent Henderson were investigating (1) “if Mr. Lee

had anything to do with any IMMIGRATION BENEFITS to the individuals that

were arrested there", TR 188, Lines 24-25, TR 189, line 1, and (2) “if there had any

type of HUMAN TRAFFICKING, what his role in that was", TR 189, Lines 2-3,

and (3) “if he was getting outside gain or some type of monetary, I guess you’d say

compensation for his role in that.” TR 189, Lines 4-5. “That there might have been

an OUTSIDE INCOME and that was mostly what I WAS FOCUSING ON.” TR

259. Therefore, any diligent and competent agents would have done what the

Agents claim they did in this case, that is, going out of their way in subpoenaing

financial records of Petitioner. The Agents’ claim that the alleged false statement

made their jobs difficult totally lacks merits.

GOVERNMENT DID NOT PROVE THE ELEMENT OF INTENT.

The government never proved the element of intent. How can the government

argue that there was intent when evidence does not even show Agents asking the

relevant question, and no evidence of Petitioner making a false denial?

CONCLUSION

Petitioner respectfully requests a Certificate of Appealability be granted

because a substantial showing of the denial of a constitutional right has been made,

and a denial of this petition will set a conflicting case precedent.

Dated this date of May 3, 2021

Respectfully submitted,

John Ching En Lee

Petitioner

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CERTIFICATE OF A PARTY UNREPRESENTED BY COUNSEL

I hereby certify that this petition for rehearing is presented in good faith

and not for delay.

Dated this date of May 3, 2021

«Tohn Ching En lee

Pro Se Petitioner

INDEX OF APPENDICES

APPENDIX A

Verdict of the United States District Court for the Northern

District of California (June 30, 2016).

APPENDIX B

Order of the United States District Court for the Northern

District of California acquitting Petitioner of Count 2 but

affirming Count 1 after a Rule 29 Motion (September 20, 2016).

APPENDIX C

Order of the United States Court of Appeals for the Ninth

Circuit denying appeal (June 6, 2018).

APPENDIX D

Order of the United States Supreme Court denying Petition for

a Writ of Certiorari (February 19, 2019).

APPENDIX E

Order of the United States District Court for the Northern

District of California denying Motion to Amend the 2255 Motion,

denying the 2255 Motion itself, and declining to issue a

Certificate of Appealability (August 28, 2019).

APPENDIX F

Order of the United States Court of Appeals for the Ninth

Circuit denying a Certificate of Appealability (December 14,

2020).

APPENDIX G

Order of the United States Court of Appeals for the Ninth

Circuit denying Motion for Reconsideration of the denial of a

Certificate of Appealability (January 14, 2021).

APPENDIX H

Order of the Supreme Court of the United States denying the

petition for a writ of certiorari (April 19, 2021).

APPENDIX A

Case 3:15-cr-00541-SI Document 123 Filed 06/30/16 Page 1 of 1

filed

UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF CALIFORNIA

JUN g 0 2016

UNITED STATES OF AMERICA,

) CASE NO. CR 15-00541 SI

)

Plaintiff,

) VERDICT FORM

)

JOHN CHING EN LEE,

Defendant.

We, the members of the Jury in this action, have reached the following unanimous verdict with

respect to each Count of the Indictment:

Count One:

(False Statement to Government Agency on or about August 26,2009, in violation of 18

U.S.C. § 1001)

We find the defendant, John Ching En Lee:

Not Guilty

Guilty

Count Two:

(False Statement to Government Agency on or about October 10,2013, in violation of 18

U.S.C. § 1001)

We find the defendant, John Ching En Lee:

Not Guilty

Guilty

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DATED:

JURY FOREPERSON

)

APPENDIX B

Case 3:15-cr-00541-SI Document 144 Filed 09/20/16 Page lot 12

UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF CALIFORNIA

UNITED STATES OF AMERICA,

Case No. 15-cr-00541-SI-l

4. lUXJ.iVli.Xj

JOHN CHING EN LEE,

Defendant.

ORDER GRANTING IN PART AND

DENYING IN PART DEFENDANT’S

MOTION FOR JUDGMENT OF

ACQUITTAL OR NEW TRIAL

Re: Dkt. No. 136

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Defendant John Ching En Lee moves for a judgment of acquittal or new trial on two

charges of providing false statements to a government agency. Docket No. 136. Argument on the

matter was heard on September 16, 2016. Having considered the arguments of the parties and the

papers submitted, the Court hereby GRANTS IN PART and DENIES IN PART defendant’s

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motion.

BACKGROUND

Defendant was charged with two counts of making false statements to the government in

violation of 18 U.S.C. § 1001(a), based upon statements he made in interviews with government

agents on August 26, 2009, and October 10, 2013.

indictment charged defendant with “making false statements to representatives of the Department

of Homeland Security about his involvement in providing funding to the owner of Crystal

Massage Parlor, who was arrested for prostitution in relation to the Crystal Massage Parlor. The

statements and representations were false because JOHN CHING EN LEE then and there knew

that he had provided $30,000 to the owner to fund the Crystal Massage Parlor.” Id. at 1-2. The

second count charged defendant with “making false statements to representatives of the

Docket No. 14.

The first count of the

Case 3:15-cr-00541-SI Document 144 Filed 09/20/16 Page 2 of 12

Department of Homeland Security about his use of Treasury Enforcement Communications

System (TECS) for personal reasons. The statements and representations were false because

JOHN CHING EN LEE then and there knew that he had queried his own name, as well as the

name of the owner of the Crystal Massage Parlor, using multiple spellings of the owner’s name

and using the owner’s birthdate.” Id. at 2.

Docket No. 123.

Defendant now moves for a judgment of acquittal under Federal Rule of Criminal Procedure 29 or

for a new trial under Rule 33. Docket No. 136.

evidentiary hearing to determine whether the government committed discovery violations, violated

the Jencks Act, ... or otherwise committed constitutional error with respect to the October 10,

2013 interview of Mr. Lee.” Id. at v.

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On June 30, 2016, a jury found defendant guilty of both counts.

In the alternative, defendant “requests an

LEGAL STANDARD

Rule 29

Rule 29 of the Federal Rules of Criminal Procedure requires the Court, on a defendant’s

motion, to “enter a judgment of acquittal of any offense for which the evidence is insufficient to

sustain a conviction.” Fed. R. Crim. P. 29(a).

The Court’s review of the constitutional sufficiency of evidence to support a criminal

conviction is governed by Jackson v. Virginia, 443 U.S. 307 (1979), which requires a court to

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determine “whether, after viewing the evidence in the light most favorable to the prosecution, any

rational trier of fact could have found the essential elements of the crime beyond a reasonable

doubt.” Id. at 319; see also McDaniel v. Brown, 558 U.S. 120, 133 (2010). This rule establishes a

two-step inquiry:

First, a . . . court must consider the evidence presented at trial in the light most

favorable to the prosecution. . . . [And sjecond, after viewing the evidence in the

light most favorable to the prosecution, the . . . court must determine whether this

evidence, so viewed, is adequate to allow “any rational trier of fact [to find] the

essential elements of the crime beyond a reasonable doubt.”

United States v. Nevils, 598 F.3d 1158, 1164 (9th Cir. 2010) (en banc) (quoting Jackson, 443 U.S.

at 319) (final alteration in Nevils).

Case 3:15-cr-00541-SI Document 144 Filed 09/20/16 Page 3 of 12

“Upon the defendant’s motion, the court may vacate any judgment and grant a new trial if

the interest of justice so requires.” Fed. R. Crim. P. 33(a). The Ninth Circuit described the

standard for granting a new trial in United States, v. A. Lanoy Alston, D.M.D., P.C., 91A F.2d 1206

(9th Cir. 1992), which it reaffirmed in United States v. Kellington, 111 F.3d 1084 (9th Cir. 2000):

[A] district court’s power to grant a motion for a new trial is much broader than its

power to grant a motion for judgment of acquittal. The court is not obliged to view

the evidence in the light most favorable to the verdict, and it is free to weigh the

evidence and evaluate for itself the credibility of the witnesses. ... If the court

concludes that, despite the abstract sufficiency of the evidence to sustain the

verdict, the evidence preponderates sufficiently heavily against the verdict that a

serious miscarriage ofjustice may have occurred, it may set aside the verdict, grant

a new trial, and submit the issues for determination by another jury.

Rule 33

Kellington, 217 F.3d at 1097 (internal quotation marks and citations omitted).

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Defendant urges the Court to grant his motion based on the following: as to Count One, he

argues that the evidence was insufficient to sustain a conviction as to the elements of falsity,

intent, and materiality; as to Count Two, he argues that the evidence was insufficient to sustain a

conviction as to the elements of intent and materiality. He also argues that the government’s case

was weak, that the government improperly and prejudicially focused its case on prostitution, that

the government committed discovery and Jencks Act violations, that the government’s closing

argument was misleading, and that the Court erred by not giving the defendant’s proposed jury

instruction on falsity.

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DISCUSSION

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Count One

Defendant argues, in part, that his conviction on Count One cannot stand because the

government “did not offer sufficient evidence to prove beyond a reasonable doubt the exchange

that was false, i.e., the precise question asked and the answer that was false.” Mot. at 12. The

Court is troubled by the fact that the August 26, 2009 interview was not recorded and that the

agents’ notes do not detail the exact question asked. Nevertheless, “viewing the evidence in the

Case 3:15-cr-00541-SI Document 144 Filed 09/20/16 Page 4 of 12

light most favorable to the prosecution,” it finds that a “rational trier of fact could have found” the

element of falsity beyond a reasonable doubt. See Nevils, 598 F.3d at 1164.

There was much testimony at trial from the agent who conducted the August 2009

interview regarding precisely what he asked. DHS Agent Ricardo Fuentes testified as follows:

♦ Q. And what questions did you ask?

A. Based on that answer, I was actually thinking now at this point well, how did she

fund this business. So I had asked him, I said, “Well, did you loan her or give her any

money to start tins business?”

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Q. And what did you ask him?

A. I asked him if he had actually funded or assisted with that business.

Tr. 236:20-237:9 (Fuentes Direct).

* Q. And so you asked him exactly “what about funding the business” during that

interview?

A. I asked him if he had ever given money to his wife to fund this business, to start it

up.

Q. Your precise question was, "If you ever -- Mr. Lee, have you ever given Ms. Liu

any money to start up the business?"

A. To fund the business, yes.

Q. The same question over and over again, “Did you give” A. Right.

Q. - “your wife any money to fund the Crystal Massage Parlor?”

A. Correct. If he had provided any funds to her.

Q. Is it, "Did you provide any funds to her," or "Did you give her any money to fund" A. I think I probably asked it around three different ways.

Q. What three different ways did you ask him?

A. Probably, "Have you ever funded this" ~ "have you ever provided money to fund

this business," and then he denied doing that. And then later on I would ask him

something similar and he would deny it.

Tr. 260:7-261:5 (Fuentes Cross).

♦ Q. You asked him that question, “Did you give your wife any money to fund the

business.” He said no?

A. He denied that.

Tr. 261:17-19 (Fuentes Cross).

* Q. You asked -- you testified that you asked Mr. Lee several times throughout the

interview about funding of the massage parlor; is that right?

A. Correct.

Q. And that question was, “Did you give your wife any money to fund her business”;

correct?

Case 3:15-cr-00541-SI Document 144 Filed 09/20/16 Page 5 of 12

DHS Agent John Henderson, who also participated in the August 2009 interview, testified that he

did not recall what question Agent Fuentes asked defendant during the interview. Tr. 304:17-20;

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♦ Q. And to the best of your recollection, the precise terminology of that question was,

"Did you give your wife any money to fund the business"?

A. "Did you assist her with funding," yes.

Q. "Did you assist her with funding" or "Did you give her any money to fund"?

A. "Give her any money."

Q. Which one is it?

A. "Give her any money."

Q. "Did you give her any money to fund the business"?

A. Right.

Tr. 277:11-21 (Fuentes Recross).

* Q. Now, without reading your notes, do you recall what specific thing the defendant

said?

A. I asked him specifically if he had given money to fund this business, and he

specifically said, “I have never funded this business.”

Tr. 278:11-15 (Fuentes Further Redirect).

A. Correct.

Tr. 276:7-13 (Fuentes Recross).

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306:19-307:16.

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Although the testimony varies as to the exact wording of the question asked, it shares a

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common thread: the use of the word “fund” or “funding,” which defendant attacks as ambiguous.

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Although this word may be susceptible to the interpretation that defendant put forward at closing

argument—that it could be asking whether Mr. Lee funded his wife’s business with money out of

his own pocket rather than with a loan he obtained from a bank—a rational trier of fact could have

found that the term “fund” included obtaining a loan. Moreover, upon further questioning from

both defense counsel and government counsel, Agent Fuentes settled on the phrasing of his

question as follows: "Did you give her any money to fund the business"? or “.. . specifically if he

had given money to fund this business . ...”’ See Tr. 277:11-21; 278:11-15. In this scenario, the

operative term is not “fund” but is rather “give.” A rational trier of fact could have found the

element of falsity by concluding that whether Mr. Lee gave money to his wife for her business

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This is also the phrasing the parties agreed to in the jury instructions: “The statement

charged in Count One is that Mr. Lee stated: ‘No’ to the question whether he gave his wife any

money to fund her business.” See Docket No. 121 at 36.

Case 3:15-cr-00541-SI Document 144 Filed 09/20/16 Page 6 of 12

included giving her money he borrowed from a bank.

Defendant cites to two Ninth Circuit cases that, though analogous, do not justify

overturning the jury’s verdict here. The first, United States v. Sainz, 772 F.2d 559 (9th Cir. 1985),

involved a perjury conviction where the grand jury transcript clearly documented the exchange at

issue. In that case, the question asked was a compound question containing an imprecise term, to

which the defendant gave a literally true answer. See 772 F.3d at 563-64. The second case,

United States v. Jiang, 476 F.3d 1026 (9th Cir. 2007), involved a bench trial for a charge

involving false statements to the government under 18 U.S.C. § 1001(a). The appeals court

overturned the conviction in part based on factors that are not present here: that the agent’s notes

“were recorded some time after the day of the interview” rather than contemporaneously, as here,

see Tr. 242:11-18, 250:1-3, 283:9-11, 299:2-10; that the agent requested that Jiang bring

documents to the interview regarding the specific topics at issue, unlike here, where the agents did

not tell Mr. Lee the interview topic in advance, see Tr. 194:21-195:4; and that Jiang’s English was

“broken” and “poor.”

August 2013 about whether he obtained a loan for his wife, he was forthcoming, as were the

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defendants in Sainz and Jiang. However, those cases involved much shorter lapses in time

between the challenged question and the follow-up question that elicited the truthful response. See

Jiang, 476 F.3d at 1028-29 (follow-up question asked one week after original interview); Sainz,

772 F.2d at 561 (follow-up question asked during the same interview). Here, defendant gave his

truthful answer four years after the alleged false statement, after his wife had revealed to agents

that her husband had gotten a bank loan for her to purchase the massage parlor. Viewing the

evidence here in the light most favorable to the prosecution, as it must, the Court cannot say that

the evidence is insufficient as to the element of falsity in Count One.

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Defendant argues that his case is also analogous because, when questioned directly in

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The Court also disagrees with defendant that the evidence was insufficient to sustain a

conviction on the elements of materiality and intent. A statement is material if it “is capable of

influencing or affecting a federal agency,” although the false statement “need not have actually

influenced the agency.” United States v. Service Deli, Inc., 151 F.3d 938, 941 (9th Cir. 1998); see

Case 3:15-cr-00541-SI Document 144 Filed 09/20/16 Page 7 of 12

also United States v. De Rosa, 783 F.2d 1401, 1408 (9th Cir. 1986) (statement is material if it

“(1) could affect or influence the exercise of governmental functions; or (2) has a natural tendency

to influence or is capable of influencing agency decision”). Even adopting the stated purposes for

the investigation that defendant puts forth in his motion, a rational juror could have concluded that

the false statement in Count One was material to DHS’s actions. See Mot. at 16. Further, a

rational juror could have concluded that defendant had the requisite intent2 because, as the

government notes, he had a law degree, he had worked as a federal employee since 2001, and at

the beginning of the interview he signed a Garrity form warning him that “[ajnything you say may

be used against you as evidence both in an administrative proceeding or any future criminal

proceeding.” See Oppo. at 8-9.

For these reasons, the Court DENIES defendant’s motion for a judgment of acquittal as to

Count One.

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against the verdict,” the Court DENIES defendant’s motion for a new trial on Count One. See

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Likewise, finding that the evidence does not “preponderate^ sufficiently heavily

Kellington, 217 F.3d at 1097.

Count Two

Defendant also moves for acquittal as to Count Two. The Court agrees with defendant that

the evidence, even viewed in the light most favorable to the prosecution, is insufficient to sustain a

conviction on Count Two because no rational trier of fact could find the essential element of

materiality beyond a reasonable doubt.

At trial, the government introduced evidence that on March 19, 2009, defendant ran three

queries of his wife’s name in TECS, to which he had access as an Immigration Services officer.

Tr. 378:2-379:10. Four and a half years later, on October 10, 2013, DHS Office of Inspector

General Special Agent Lamont Scott interviewed defendant regarding his TECS usage, “to find

out why he ran his wife in the TECS system ....” See Tr. 317:14-318:8; 386:10-387:4.

The jury found defendant guilty based on the following instruction:

2 Defendant’s motion here focuses on whether there was sufficient evidence that he “knew

his conduct was unlawful.” See Mot. at 15.

Case 3:15-cr-00541-SI Document 144 Filed 09/20/16 Page 8 of 12

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Mr. Lee is charged in Count Two with knowingly and willfully making a

false statement on or about October 10, 2013, in a matter within the jurisdiction of

a governmental agency or department, the United States Department of Homeland

Security, in violation of Section 1001 of Title 18 of the United States Code. In

order for Mr. Lee to be found guilty of that charge, the government must prove

each of the following elements beyond a reasonable doubt:

First, Mr. Lee made a false statement in a matter within the jurisdiction of

the Department of Homeland Security;

Second, Mr. Lee acted willfully; that is, Mr. Lee acted deliberately and with

knowledge both that the statement was untrue and that his conduct was unlawful;

and

Third, the statement was material to the activities or decisions of the

Department of Homeland Security; that is, it had a natural tendency to

influence, or was capable of influencing, the agency’s decisions or activities.

The statement charged in Count Two is that Mr. Lee stated: “No” to the

question whether he ever made any unauthorized queries of his wife in TECS for

personal use.

Docket No. 121 at 37 (emphasis added).

Defendant argues first that the statement in question could not have been material because

“Agent Scott told the grand jury that the purpose [of his investigation] was to ‘determine if Mr.

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Lee was associated with the brothel operating as a massage parlor”’ and the massage parlor closed

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five years before the interview regarding the TECS search. Mot. at 17 (citing Tr. 424). The

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government counters that the March 2009 search date was “significant to [Special Agent Scott]

because it raised the specter that Defendant had impermissibly run the queries to obtain restricted

information about [his wife’s] judicial proceedings or immigration status, or both.” Oppo. at 15.

But what the government fails to state, and what it failed to present at trial, was what activities or

decisions of DHS were or could have been influenced by defendant’s October 2013 denial.

The government’s arguments that there was sufficient evidence as to materiality read rather

like after-the-fact justifications. For instance, the government argues that defendant’s August

2013 admission that he had obtained a bank loan for his wife “called Defendant’s overall

credibility into question” and so Special Agent Scott “then expanded his investigation to include

Defendant’s use of the TECS system....” Oppo. at 14. That Special Agent Scott decided, years

into the investigation of defendant, to explore the possibility of TECS misuse years before does

not mean that a false statement regarding that misuse was material. Nor is there materiality in the

Case 3:15-cr-00541-SI Document 144 Filed 09/20/16 Page 9 of 12

government’s assertion that the TECS question “was certainly an important part of the

investigation regarding [defendant’s] connection with Crystal Massage Therapy” when the

business had been closed for several years by the time of the October 2013 interview. See id. at

15.

It is also not persuasive that if defendant had been forthcoming in October 2013 this would

have saved the agency “further investigative steps” into his TECS queries. Special Agent Scott

testified that in February 2014 and April 2014 he requested further documentation about

defendant’s queries and TECS history from Customs and Border Protection.

399:2-25, 406:6-17. Special Agent Scott’s reasons for wanting these documents were broad,3 but

several of the documents (a copy of the TECS exam, defendant’s training records) appear to be

related to TECS training, and Special Agent Scott testified that he had an opportunity to question

defendant about TECS training during the October 2013 interview. See id. 393:1-9, 399:12-16.

Tr. 327:10-14,

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Critically, Special Agent Scott testified that he knew defendant was lying at the October

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2013 interview. Prior to the October 2013 interview, Special Agent Scott obtained a print-out

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from TECS showing defendant’s March 2009 queries of his wife’s name. Tr. 395:25-396:11.

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Therefore, before defendant made the false statement, the agency had internal proof that defendant

had run such a search, and Special Agent Scott testified that he confronted defendant with this

information at the interview.4 Tr. 395:25-396:17. Special Agent Scott further testified that “the

answers that he was giving me in my opinion were not true” and that after Special Agent Scott

confronted defendant with the document he “asked [defendant] a series of questions over again.”

Tr. 396:12-24. Where the agency knew that defendant’s statement was false at the time it was

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3 Special Agent Scott testified that he wanted the information “[t]o gain more information

into who Mr. Lee was and how he had authority, what his training was, all to basically let me

know that he had — he knew about TECS training, he knew about the rules and the regulations, he

was a TECS user, to provide me more backup documentation.” Tr. 399:17-22.

4 Defendant states that the first time he learned of the allegation regarding the TECS print

out was upon hearing Special Agent Scott’s testimony at trial. Mot. at 10. No mention of the

TECS printout is made in the Scott’s notes or report, or those of his assistant, Special Agent Lee,

nor is a copy of it appended to any of those documents. These allegations form the basis of

defendant’s argument regarding discovery violations and his request for an evidentiary hearing.

Case 3:15-cr-00541-SI Document 144 Filed 09/20/16 Page 10 of 12

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made, the government’s evidence does not suffice to show materiality.

Accordingly, the Court GRANTS defendant’s motion for judgment of acquittal on Count

Two. Where a court “enters a judgment of acquittal after a guilty verdict, the court must also

conditionally determine whether any motion for a new trial should be granted if the judgment of

acquittal is later vacated or reversed.” Fed. R. Crim. P. 29(d)(1). For the same reasons stated

above that the Court finds a judgment of acquittal should be granted, and because the evidence

regarding the element of materiality in Count Two “preponderates sufficiently heavily against the

verdict that a serious miscarriage of justice may have occurred,” the Court conditionally finds that

a new trial should be granted if this judgment of acquittal is later vacated or reversed. See

Kellington, 217 F.3d at 1097.

hearing in advance of the new trial is necessary for the reasons stated in defendant’s motion. See

Mot. at 26-27.

III.

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Should that occur, the Court further finds that an evidentiary

Other Matters

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Having granted defendant’s motion for acquittal on Count Two, the Court need not rule on

defendant’s allegations regarding potential discovery and Jencks Act violations, defendant’s

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concerns with the government’s closing argument,5 and defendant’s request for an evidentiary

hearing.6 The Court is not persuaded by defendant’s argument that “the government’s case was

weak at best,” see Mot. at 19, as the Court is granting defendant’s motion for a judgment of

acquittal as to the weakest part of the government’s case—materiality under Count Two. This

leaves defendant’s arguments that the Court erred in failing to give his proposed instruction on

falsity and that the trial was improperly prejudiced by references to prostitution.

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The Court does not find that it was error to fail to give defendant’s proposed instruction on

5 These concerns pertain primarily to the timing of defendant’s TECS query.

6 This request is largely made to gather evidence in support of the defense’s attack on

Count Two.

Case 3:15-cr-00541-SI Document 144 Filed 09/20/16 Page 11 of 12

falsity.

same extent as the questions in Jiang and Sainz, which defendant cites in support. Second, the

Court heard extensive argument on this point from both sides prior to the close of trial. See Tr.

563.17-568.11. The Court permitted defense counsel to make the argument contained in the

proposed instruction during closing, and defense counsel did so. See Tr. 568:6-11, 622:1-5 (“If

you all can decide on the exact question that Agent Fuentes asked, that question still has to be

clear. If that question is ambiguous and there is a reasonable response to that ambiguous question,

it is not a false statement. That is not a knowing and deliberate false statement.”) The jury heard

this argument and still convicted defendant on Count One.

First, the Court does not find that the agent’s question in this case was ambiguous to the

The Court also finds that references to prostitution did not unfairly prejudice the jury, as

defendant argues. The Court discussed this with the parties during the pretrial conference and

again during the first day of trial. See Docket No. 105 at 2; Tr. 5:1-13:20. The Court limited the

government to one witness on the topic of the alleged prostitution activities and ordered “that the

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testimony shall be for the purpose of showing how the massage parlor’s allegedly illegal activities

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triggered DHS’s investigation and how defendant’s statements were material to that

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investigation.”

government exceeded those bounds at trial.

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Docket No. 105 at 2.

The Court does not agree with defendant that the

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Defendant mainly takes issue with two pieces of testimony: (1) that government witness

Leslie Severe testified that “undercover agents ‘were solicited for some type of sexual activity’” at

the massage parlor, and (2) that “Agent Fuentes testified that he read a portion of the police report

to Mr. Lee during the August 2009 interview stating that Ms. Liu solicited sex from an undercover

agent....

on direct examination to respond “based on your personal observations.” Tr. 157:18-22. When

Ms. Severe stepped beyond those boundaries, defense counsel made a hearsay objection that the

Court sustained. Tr. 157:23-158:6. Nor does the Court find that it was impermissible hearsay for

See Mot. at 21-22. As to Ms. Severe’s testimony, the government asked Ms. Severe

Defendant sought the following instruction: “If you find that a particular question asked

of Mr. Lee was ambiguous and that Mr. Lee truthfully answered one reasonable interpretation of

the question under the circumstances presented, then his answer would not be false. It is the

burden of the government agents to clarify any ambiguous statements.” Docket No. 119 at 2.

Case 3:15-cr-00541-SI Document 144 Filed 09/20/16 Page 12 of 12

Ms. Severe to testify as to the direction she gave her officers regarding when to use a “bust

signal.” See Tr. 160:23-162:2. As to Agent Fuentes’s testimony that he read a police report

regarding defendant’s wife’s alleged solicitations, the Court gave a limiting instruction to the jury.

Tr. 198:24-199:22. The references to defendant’s wife’s actions constituted only a brief portion of

Agent Fuentes’s lengthy testimony, and was drawn out to show the effect on the listener as well as

to explain why Agent Fuentes still remembered the interview conducted nearly seven years earlier.

See Tr. 199:24-200:17. Overall, these limited references to sexual activity at the massage parlor

did not “impermissibly taint[] the verdict,” as defendant argues. See Mot. at v.

CONCLUSION

For the foregoing reasons and for good cause shown, the Court hereby DENIES

defendant’s motion for judgment of acquittal or a new trial on Count One. The Court GRANTS

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defendant’s motion for judgment of acquittal on Count Two.

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IT IS SO ORDERED.

Dated: September 20,2016

SUSAN ILLSTON

United States District Judge

APPENDIX C

FILED

NOT FOR PUBLICATION

UNITED STATES COURT OF APPEALS

JUN 06 2018

MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS

FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

No.

16-10448

D.C. No. 3:15-cr-00541-SI

MEMORANDUM*

JOHN CHING EN LEE,

Defendant-Appellant.

Appeal from the United States District Court

for the Northern District of California

Susan Illston, District Judge, Presiding

Argued and Submitted April 12, 2018

San Francisco, California

Before: WARDLAW and NGUYEN, Circuit Judges, and OLIVER,** District

Judge.

Appellant John Ching En Lee (“Lee”) appeals the district court’s denial of his

motion for judgment of acquittal following his jury trial conviction for making a false

This disposition is not appropriate for publication and is not precedent

except as provided by Ninth Circuit Rule 36-3.

♦*

The Honorable Solomon Oliver, Jr., United States District Judge for

the Northern District of Ohio, sitting by designation.

statement to federal agents on the grounds that there was insufficient evidence of the

false statement made to satisfy the elements of 18 U.S.C. § 1001(a)(2), and that the

district court erred by failing to specifically instruct the jury on unanimity relative to

which false statement Lee made. We have jurisdiction under 28 U.S.C. § 1291, and

we affirm.

We review whether there was sufficient evidence to support a jury

convictionde novo. US. v. Vazquez-Hernandez, 849 F.3d 1219,1229 (9th Cir. 2017).

There was ample evidence before the jury from which it could conclude that the

questions the investigators asked Lee, numerous times in numerous iterations, about

funding his wife’s business were not misleading. Despite their clarity, Lee did not

admit that he had provided her a bank loan. See U.S. v. Jiang, 476 F.3d 1026,

1028-30 (9th Cir. 2007). Lee’s argument that these questions cannot support a

conviction under § 1001(a)(2) has no merit, because a statement does not need to be

recorded or transcribed in order to support a conviction. Id. Moreover, the false

statement was material because the agents’ testimony demonstrated it changed the

scope of their investigation. See U.S. v. De Rosa, 783 F.2d 1401, 1408 (9th Cir.

1986). Thus, there was sufficient evidence to satisfy the elements of falsity, specific

intent, and materiality under 18U.S.C. § 1001(a)(2) given the lack of ambiguity in the

possible versions of the question posed as recalled by the agents during their

testimony at trial; the context of the interview and Lee’s background and experience;

the agents’ testimony as to the scope and course of their investigation; and the absence

of other extrinsic factors weighing against conviction. See Jiang, 476 F.3d at

1029-30; U.S. v. Serv. Deli Inc., 151 F.3d 938, 941 (9th Cir. 1998).

2. Because Lee failed to preserve his objection to the district court’s failure to

give a specific unanimity instruction for appeal, by stipulating to the false statement

he allegedly made, we review the district court’s failure to instruct the jury on specific

unanimity for plain error. See U.S. v. Campbell, 42 F.3d 1199,1204 (9th Cir. 1994);

Fed. R. Crim. P. 30. Plain error is “error that is clear under the law and affects

substantial rights.” Campbell, 42 F.3d at 1204. The district court did not plainly err

because a specific unanimity instruction was not required in this case. The general

unanimity instruction was sufficient to charge the jury on the relevant law as there was

considerable evidence presented at trial to support the parties’ stipulation regarding

the false statement Lee allegedly made. See 9th Cir. Model Crim. Jury Instructions

§§ 7.9, 8.73.

AFFIRMED.

APPENDIX D

S5«i

Search documents in this case:

No. 18-597

Title:

John Ching En Lee, Petitioner

United States

Docketed:

November 6, 2018

Linked with 18A203

Lower Ct:

United States Court of Appeals for the Ninth Circuit

Case Numbers:

(16-10448)

Decision Date:

June 6, 2018

DATE

PROCEEDINGS AND ORDERS

Aug 21 2018

Application (18A203) to extend the time to file a petition for a writ of

certiorari from September 4,2018 to November 3, 2018, submitted to The

Chief Justice.

Main Document

Orders/Opinions

Lower Court

Orders/Opinions

Proof of Service

Aug 24 2018

Application (18A203) granted by The Chief Justice extending the time to file

until November 2, 2018.

Nov 02 2018

Petition for a writ of certiorari filed. (Response due December 6, 2018)

Certificate of Word Count

Service

Dec 04 2018

Proof of

Petition

Motion to extend the time to file a response from December 6, 2018 to

January 7,2019, submitted to The Clerk.

Main Document

Dec 06 2018

Motion to extend the time to file a response is granted and the time is

extended to and including January 7, 2019.

Jan 07 2019

Brief of respondent United States in opposition filed.

Main Document

Jan 22 2019

Proof of Service

Reply of petitioner John Lee filed.

Main Document

Service

Certificate of Word Count

Jan 23 2019

DISTRIBUTED for Conference of 2/15/2019.

Feb 19 2019

Petition DENIED.

NAME

ADDRESS

PHONE

Boston College Law School

885 Centre Street

(617) 552-4390

Attorneys for Petitioner

Kari Elisabeth Hong

Counsel of Record

Newton, MA 02459

kari.hong@bc.edu

Party name: John Lee

Attorneys for Respondent

Noel J. Francisco

Counsel of Record

Solicitor General

United States Department of Justice

950 Pennsylvania Avenue, NW

Washington, DC 20530-0001

SupremeCtBriefs@USDOJ.gov

Party name: United States

202-514-2217

Proof of

APPENDIX E

Case 3:15-cr-00541-SI Document 189 Filed 08/28/19 Page 1 of 10

UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF CALIFORNIA

UNITED STATES OF AMERICA,

Plaintiff,

JOHN CHING EN LEE,

Defendant.

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Case Nos. 15-cr-00541-SI-l

18-cv-06223-SI

ORDER DENYING DEFENDANT’S

MOTION UNDER 28 U.S.C. § 2255;

DENYING DEFENDANT’S MOTION

TO AMEND § 2255 MOTION; AND

GRANTING DEFENDANT’S MOTION

TO FILE REPLY BRIEF

Re: Dkt. Nos. 164, 165, 183, 188

Now before the Court are several motions filed by defendant John Ching En Lee, who was

serving a term of federal probation and who is currently representing himselfpro se. For the reasons

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set forth below, the Court DENIES Lee’s motion for relief under 28 U.S.C. § 2255 (Dkt. Nos. 164,

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165); DENIES Lee’s motion to amend his § 2255 motion (Dkt. No. 183); and GRANTS Lee’s

motion for leave to file a reply brief (Dkt. 188). A certificate of appealability will not issue.

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PROCEDURAL BACKGROUND

In an indictment filed in November 2015, Lee was charged with two counts of making false

statements to the government in violation of 18 U.S.C. § 1001(a), based upon statements he made

in interviews with government agents on August 26, 2009, and October 10, 2013. Dkt. No. 42. On

June 30, 2016, a jury found defendant guilty of both counts. Dkt. No. 123. Lee then moved for a

judgment of acquittal under Federal Rule of Criminal Procedure 29 or a for a new trial under Rule

33. On September 20,2016, the Court denied Lee’s motion for judgment of acquittal or a new trial

on Count One but granted his motion for judgment of acquittal on Count Two. Dkt. No. 144. On

October 14, 2016, the Court sentenced Lee to two years of probation, with a special assessment of

Case 3:15-cr-00541-SI Document 189 Filed 08/28/19 Page 2 of 10

$100 and a fine of $500. Dkt.No. 154.

Lee then filed a direct appeal with the United States Court of Appeals for the Ninth Circuit.

On June 6, 2018, in an unpublished memorandum, the Ninth Circuit affirmed this Court’s denial of

defendant’s motion for judgment of acquittal on Count One. Dkt. No. 163; see also United States

v. Lee, 726 Fed. App’x 589 (9th Cir. 2018).

On October 10, 2018, Lee filed in this Court a motion to vacate, set aside, or correct his

sentence pursuant to 28 U.S.C. § 2255. Dkt. Nos. 164, 165. The government moved to dismiss

Lee’s motion, arguing that the motion was not ripe because Lee was seeking review of the Ninth

Circuit’s decision before the United States Supreme Court. Dkt. No. 171. This Court denied the

government’s motion to dismiss but stayed briefing on the § 2255 motion pending the Supreme

Court’s review of Lee’s petition for a writ of certiorari. Dkt. No. 173.

After the Supreme Court denied Lee’s petition on February 19, 2019, see Dkt. No. 174,

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briefing on Lee’s § 2255 motion resumed. The government filed an opposition brief, attaching Lee’s

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opening brief in his direct appeal before the Ninth Circuit. Dkt.No. 179. Lee requested and received

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an extension of time to file his reply brief, making his reply due on May 29, 2019. Dkt. Nos. 181,

182. On May 16, 2019, Lee filed a motion to amend his § 2255 motion, which the government

11 17

opposed. Dkt. Nos. 183,186. On May 24,2019, Lee filed a request for extension of time to file his

reply brief on the § 2255 motion. Dkt. No. 184. The Court vacated the reply deadline pending its

ruling on the motion to amend. Dkt. No. 185. However, on June 20, 2019, Lee filed a motion

requesting the Court’s leave to accept his reply brief to the § 2255 motion and attaching the proposed

reply brief. Dkt.No. 188. i

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LEGAL STANDARD

A prisoner in custody under sentence of a federal court who wishes to attack collaterally the

validity of his conviction or sentence must do so by filing a motion to vacate, set aside or correct

The Court GRANTS Lee’s request that the Court accept his reply brief to the § 2255 motion

and deems as FILED the reply brief attached to Lee’s motion for leave to file a reply brief. See Dkt.

No. 188. The Court has considered the reply brief in ruling on the pending motions decided in this

Order.

Case 3:15-cr-00541-SI Document 189 Filed 08/28/19 Page 3 of 10

the sentence pursuant to 28 U.S.C. § 2255 in the court which imposed the sentence. 28 U.S.C.

§ 2255(a). Under 28 U.S.C. § 2255, the federal sentencing court is authorized to grant relief if it

concludes that “the sentence was imposed in violation of the Constitution or laws of the United

States, or that the court was without jurisdiction to impose such sentence, or that the sentence was

in excess of the maximum authorized by law, or is otherwise subject to collateral attack.” See Tripati

v. Henman, 843 F.2d 1160, 1162 (9th Cir. 1988). If the court finds that relief is warranted under

§ 2255, it must “vacate and set the judgment aside” and then do one of four things: “discharge the

prisoner or resentence him or grant a new trial or correct the sentence as may appear appropriate.”

28 U.S.C. § 2255(b); United States v. Barron, 172 F.3d 1153, 1157 (9th Cir. 1999).

Section 2255 requires that an evidentiary hearing be held unless the record conclusively

reveals that the petitioner is not entitled to relief. See United States v. Mejia-Mesa, 153 F.3d 925,

929 (9th Cir. 1998). “The petitioner need not detail his evidence, but must only make specific

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factual allegations which, if true, would entitle him to relief.” Id. (internal alteration and citations

omitted). An evidentiary hearing need not be held where the petition, files, and record of the case

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conclusively show the petitioner is entitled to no relief. Id.; see also United States v. Howard, 381

F.3d 873, 877-79 (9th Cir. 2004) (a claim for ineffectiveness based on counsel’s failure to address

defendant’s incompetence to plead guilty required an evidentiary hearing where specific, credible

evidence existed that defendant was under the influence of powerful narcotic drugs). The district

court may deny a § 2255 motion without an evidentiary hearing only if the movant’s allegations,

viewed against the record, either do not state a claim for relief or are so palpably incredible or

patently frivolous as to warrant summary dismissal. See Mejia-Mesa, 153 F.3d at 931 (district court

did not abuse discretion in denying evidentiary hearing on claims that failed to state a claim for

relief under § 2255 as a matter of law).

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DISCUSSION

Lee currently stands convicted of Count One of the indictment, for a violation of 18 U.S.C.

§ 1001(a). That count charged Lee with “making false statements to representatives of the

Department of Homeland Security about his involvement in providing funding to the owner of

Case 3:15-cr-00541-SI Document 189 Filed 08/28/19 Page 4 of 10

Crystal Massage Parlor [i.e., Lee’s wife], who was arrested for prostitution in relation to the Crystal

Massage Parlor. The statements and representations were false because JOHN CHING EN LEE

then and there knew that he had provided $30,000 to the owner to fund the Crystal Massage Parlor.”

Dkt. No. 42 at 1-2.

Prior to the start of trial, Lee’s counsel had proposed that the Court instruct the jury on

“specific unanimity,” in the form of the following proposed instruction:

In order for Mr. Lee to be found guilty on Count One, you all must agree that one or

more of the following statements was materially false and made with Mr. Lee’s

knowledge that both the statement was untrue and that his conduct was unlawful,

with all of you unanimously agreeing as to which statement or statements so qualify.

In other words, even if you all agree that Mr. Lee made at least one false statement,

but all of you do not agree on which specific statement was false, the crime of Making

a False Statement has not been proven beyond a reasonable doubt.

[LIST STATEMENTS INTRODUCED AT TRIAL]

Dkt. No. 106 at 43-44. The Court indicated in a subsequent Order that “[i]f the government charges

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more than one false statement in . . . Count One . . ., the Court will give a specific unanimity

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instruction. If the government charges one statement in each count, the Court finds that no separate

unanimity instruction will be required.” Dkt. No. 113 at 6.

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During the course of trial, the parties reached an agreement on how to describe the false

statements in the instructions. See Dkt. No. 137, Tr. at 501:2-15, 562:23-563:1. The parties

submitted their agreement to the Court’s clerk and the final jury instruction on Count One read, in

relevant part, “The statement charged in Count One is that Mr. Lee stated: ‘No’ to the question

whether he gave his wife any money to fund her business.” Dkt. No. 121 at 36 (Jury Instr. No. 28).

Section 2255 Motion

In his § 2255 motion, Lee makes two interrelated arguments. First, he argues that his trial

counsel provided ineffective assistance in violation of the Sixth Amendment “by stipulating in jury

instructions the exact question asked by the agent and exact answer given by defendant.” Dkt. No.

164 at 2.2 Second, Lee argues that the trial court violated his Sixth Amendment rights when it gave

2 Because some of Lee’s briefs lack page numbers, citations in this Order to page numbers

in his briefs refer to the page numbers provided by the Court’s Electronic Case Filing (ECF) system.

Case 3:15-cr-00541-SI Document 189 Filed 08/28/19 Page 5 of 10

the above jury instruction that contained the stipulation his lawyer entered.

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The Sixth Amendment to the United States Constitution guarantees not only assistance, but

effective assistance, of counsel. Strickland v. Washington, 466 U.S. 668, 686 (1984). The purpose

of the right is to ensure a fair trial, and the benchmark for judging any claim of ineffectiveness is

“whether counsel’s conduct so undermined the proper functioning of the adversarial process that

the trial cannot be relied on as having produced a just result.” Id. To prevail on an ineffective

assistance claim, a habeas petitioner must show that (1) counsel’s performance was “deficient,” i.e.,

his “representation fell below an objective standard of reasonableness” under prevailing

professional norms, id. at 687-88, and (2) prejudice flowed from counsel’s performance, i.e., that

there is a reasonable probability that, but for counsel’s errors, the result of the proceedings would

have been different. See id. at 691-94. “A reasonable probability is a probability sufficient to

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Ineffective Assistance of Counsel

undermine confidence in the outcome.” Id. at 694.

“Judicial scrutiny of counsel’s performance must be highly deferential.” Id. at 689. “[A]

court must indulge a strong presumption that counsel’s conduct falls within the wide range of

II 17

reasonable professional assistance; that is, the defendant must overcome the presumption that, under

the circumstances, the challenged action ‘might be considered sound trial strategy.’” Id. (quoting

Michel v. Louisiana, 350 U.S. 91, 101 (1955)). A difference of opinion as to trial tactics does not

constitute denial of effective assistance, United States v. Mayo, 646 F.2d 369, 375 (9th Cir. 1981),

and tactical decisions are not ineffective assistance simply because in retrospect better tactics are

known to have been available. Bashor v. Risley, 730 F.2d 1228, 1241 (9th Cir. 1984). Tactical

decisions of trial counsel deserve deference when: (1) counsel in fact bases trial conduct on strategic

considerations; (2) counsel makes an informed decision based upon investigation; and (3) the

decision appears reasonable under the circumstances. Sanders v. Ratelle, 21 F.3d 1446, 1456 (9th

Cir. 1994).

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The Court finds that Lee’s claim for ineffective assistance of counsel fails because he cannot

meet the first prong of the Strickland test; that is, he cannot show that his trial counsel’s stipulation

Case 3:15-cr-00541-SI Document 189 Filed 08/28/19 Page 6 of 10

to the statement contained in Jury Instruction No. 28 was deficient. Although Lee did not raise an

ineffective assistance of counsel claim on direct appeal, he did litigate the issue at the heart of the

claim, Which is whether it was error for the Court to fail to give a specific unanimity instruction.

The Ninth Circuit found that “a specific unanimity instruction was not required in this case. The

general unanimity instruction was sufficient to charge the jury on the relevant case law as there was

considerable evidence presented at trial to support the parties’ stipulation regarding the false

statement Lee allegedly made.” Lee, 726 Fed. App’x at 590. Under these circumstances, where the

Ninth Circuit has squarely ruled that the evidence at trial supported the stipulation, this Court simply

cannot find that trial counsel’s decision to enter the stipulation was “deficient” under the definition

in Strickland rather than simply a matter of trial tactics.

Because Lee cannot meet the first prong of Strickland, the Court need not analyze whether

Lee is able to meet the second prong regarding prejudice. Nevertheless, the Court notes that Lee’s

31 13

argument on the prejudice prong amounts to little more than speculation that if the jury had received

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a specific unanimity instruction, then it would not have convicted him on Count One. See Dkt. No.

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164 at 3 (arguing that “[t]he error was prejudicial because uncertainty defeats an 18 USC 1001

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conviction. US v. Jiang, 476 F.3d 1026, 1029 (9th Cir. 2007)”); Dkt. No. 188 at 12 (“Defendant

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suffered prejudice^ because he was wrongfully convicted as a result of the faulty jury instruction.”).

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Lee also argues that this Court “violated defendant’s 6th Amendment rights by agreeing with

an erroneous jury instruction” based upon the stipulation entered by his attorney. Dkt. No. 164 at

3. Lee argues that this was error because, by accepting an instruction with the stipulation, the Court

“wrongfully resolved the 8 different versions of that question [asked by the agent] into 1 clear

statement.” Id.

contention on his direct appeal, and that “it is improper to use a petition under Section 2255 to re

litigate that same issue, in the guise of an ineffective assistance claim or a claim of other error.”

Dkt. No. 179 at 10.

Jury Instruction

In opposition, the government argues that the Ninth Circuit rejected Lee’s

Section 2255 may not be used as a chance at a second appeal. United States v. Berry, 624

Case 3:15-cr-00541-SI Document 189 Filed 08/28/19 Page 7 of 10

F.3d 1031, 1038 (9th Cir. 2010) (citing United States v. Addonizio, 442 U.S. 178, 184 (1979)).

Claims presented and rejected on direct appeal may not be litigated again in a § 2255 motion. See

United States v. Scrivner, 189 F.3d 825,828 (9th Cir. 1999). Moreover, “[ujnder the law of the case

doctrine, a court will generally refuse to reconsider an issue that has already been decided by the

same court or a higher court in the same case.” Gonzalez v. Arizona, 677 F.3d 383, 389 n.4 (9th

Cir. 2012) (en banc) (citing Jeffries v. Wood, 114 F.3d 1484, 1488-89 (9th Cir. 1997) (en banc)).

In Scrivner, after the defendant was convicted in a jury trial, he filed a direct appeal, arguing

that the district court violated his Fifth Amendment rights when it admitted an affidavit into evidence

in which he asserted his ownership over a gun that the government had seized during a search of his

home. The Ninth Circuit rejected this argument, finding he had waived his right to invoke the Fifth

Amendment in the civil proceeding over forfeiture of the gun. Scrivner, 189 F.3d at 827. The

defendant then filed a petition for relief under 28 U.S.C. § 2255 with the district court, arguing that

there had been a change in the law. The district court rejected his § 2255 motion, and the Ninth

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Circuit affirmed. The Ninth Circuit explained that the defendant had presented his Fifth Amendment

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claim in his direct appeal and that it had been denied on the merits. As such, “[tjhat decision is

binding on our resolution of the case. See Odom v. United States, 455 F.2d 159,160 (9th Cir. 1972)

(‘The law in this circuit is clear that when a matter has been decided adversely on appeal from a

conviction, it cannot be litigated again on a 2255 motion.’).” Id. at 828.

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The same is true here. Lee concedes that he raised the argument regarding the allegedly

erroneous jury instruction on his direct appeal. See Dkt. No. 165 at 5. His opening brief at the Ninth

Circuit also shows that he argued on appeal that “the district court erred because there is insufficient

evidence to determine what was the exact statement that was uttered[,]” pointing to an alleged eight

different versions of the question that the agents asked. See Dkt. No. 179-1 at 19. However, he now

argues in his reply brief that this claim should not be barred because, according to Lee, “a court may

depart from the law of the case if... the decision is clearly erroneous and its enforcement would

work a manifest injustice.” Dkt. No. 188 at 17 (citing Gonzalez, 677 F.3d at 390 n.4). Lee provides

no argument in support of his assertion that the Ninth Circuit’s decision was “clearly erroneous.”

Rather, in his § 2255 motion and the reply brief, he simply restates the same arguments that the

Case 3:15-cr-00541-SI Document 189 Filed 08/28/19 Page 8 of 10

Ninth Circuit has already considered and rejected. He also raised these arguments in his post-trial

motions before this Court, and this Court rejected them. See Dkt. No. 144 at 3 (“Defendant argues,

in part, that his conviction on Count One cannot stand because the government ‘did not offer

sufficient evidence to prove beyond a reasonable doubt the exchange that was false, i.e., the precise

question asked and the answer that was false.”’). Because these issues were previously litigated and

decided in this case, they are not proper grounds for a § 2255 motion. See Berry, 624 F.3d at 1038.3

Nor does the Court find that the decisions already rendered were clearly erroneous such as to warrant

departing from the law of the case. Accordingly, the Court DENIES Lee’s motion to vacate, set

aside, or correct his sentence under 28 U.S.C. § 2255.

II.

Motion to Amend Section 2255 Motion

In the motion requesting permission to amend his § 2255 motion, Lee states that in addition

to the ineffective assistance of counsel claim raised in the original motion, he would like “to add 1

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183 at 1. He argues that the evidence at trial cannot support his conviction because “testimony by

Agent John Henderson clearly shows the alleged funding question was never asked, and defendant

never made a false denial.” Id. at 2. Citing to the transcript of the trial, he states that the two agents

who testified gave testimony that contradicted each other, that “[t]he so-called funding question was

nothing more than Agent John Henderson’s own characterization of income-sharing question

posed by Agent Fuentes[,]” and that “[t]he government’s allegation that defendant made [a] false

statement was actually Agent Henderson’s own Assumption/Speculation after hearing defendant’s

response of not sharing money with [his] wife.” Id. at 3. Lee concedes that “the issue of false

statement was raised and rejected on appeal at the 9th Circuit” but argues that because the evidence

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additional claim, that is, insufficient evidence to prove he made a false statement. . ..” Dkt. No.

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3 Lee raises one argument here that was arguably not raised on direct appeal, when he takes

the position that the agents never asked him the fiinding question at all. However, this argument

cannot be squared with the Ninth Circuit’s finding that “there was considerable evidence presented

at trial to support the parties’ stipulation regarding the false statement Lee allegedly made.” See

Lee, 726 Fed. App’x at 590. Moreover, arguments that should have been raised on direct appeal but

that were not, such as this one, may not then form the basis for a § 2255 motion. See Torres v.

United States, 469 F.2d 651, 652 (9th Cir. 1972) (per curiam) (citing Evans v. Mitchell, 458 F.2d

993 (9th Cir. 1972)).

Case 3:15-cr-00541-SI Document 189 Filed 08/28/19 Page 9 of 10

he cites shows that the agents asked no funding question and Lee made no false denial, “the

conviction was clearly erroneous and its enforcement will work a manifest injustice.” Id. at 5.

The Civil Rule governing pleading amendments, Federal Rule of Civil Procedure 15, made

applicable to habeas proceedings by 28 U.S.C. § 2242, Federal Rule of Civil Procedure 81(a)(4),

and Habeas Corpus Rule 12, allows amendments with leave of court any time during a proceeding.

Mayle v. Felix, 545 U.S. 644, 654-55 (2005) (citing Fed. R. Civ. P. 15(a)). There are several

accepted reasons to deny leave to amend, including the presence of bad faith by the moving party,

undue delay, prejudice to the non-moving party, futility of amendment, and previous amendments.

See Ascon Props., Inc. v. Mobil Oil Co., 866 F.2d 1149, 1160 (9th Cir. 1989); McGlinchy v. Shell

Chem. Co., 845 F.2d 802, 809-10 (9th Cir. 1988). Leave may be denied if the proposed amendment

is futile or would be subject to dismissal. See Saul v. United States, 928 F.2d 829, 843 (9th Cir.

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1991). “Futility of amendment can, by itself, justify the denial of a motion for leave to amend.”

Bonin v. Calderon, 59 F.3d 815, 845 (9th Cir. 1995).

Here, the Court finds that the amendment to the § 2255 motion that Lee proposes would be

futile. It does not substantially differ from the second grounds for error that he raises in his original

§ 2255 motion, which he argues more fully in his reply brief, and the Court would reject the

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amendment for the same reasons as stated above, that Lee already raised or could have raised these

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challenges on direct appeal. Accordingly, the Court DENIES Lee’s request to amend his § 2255

motion.

Lee also argues that he is entitled to an evidentiary hearing. A habeas petitioner may be

entitled to an evidentiary hearing on a claim “if he alleges facts that, if proven, would entitle him to

relief.” Tapia v. Roe, 189 F.3d 1052, 1056 (9th Cir. 1999) (regarding § 2254 motion); see also

Mejia-Mesa, 153 F.3d at 929. The district court may deny a § 2255 motion without an evidentiary

hearing only if the movant’s allegations, viewed against the record, either do not state a claim for

relief or are so palpably incredible or patently frivolous as to warrant summary dismissal. See Mejia-

Mesa, 153 F.3d at 931 (district court properly denied evidentiary hearing on claims that failed to

state a claim for relief under § 2255 as a matter of law).

The Court finds the claims Lee raises here fail as a matter of law, and thus no hearing is

Case 3:15-cr-00541-SI Document 189 Filed 08/28/19 Page 10 of 10

required to resolve a factual dispute. The request for an evidentiary hearing is DENIED.

CONCLUSION

Lee has not made a substantial showing of the denial of a constitutional right, and

accordingly the Court does not issue a certificate of appealability. See 28 U.S.C. § 2253(c)(2).

Lee’s motion under 28 U.S.C. § 2255 is DENIED. Lee’s motion to amend his § 2255 motion is

DENIED.

IT IS SO ORDERED.

Dated: August 28, 2019

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United States District Judge

APPENDIX F

Case: 19-16745, 12/14/2020, ID: 11926179, DktEntry: 3, Page 1 of 1

UNITED STATES COURT OF APPEALS

FILED

DEC 14 2020

FOR THE NINTH CIRCUIT

MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

No.

19-16745

D.C.Nos.

3:18-cv-06223-SI

3:15-cr-00541-SI-l

Northern District of California,

San Francisco

JOHN CHINGENLEE,

ORDER

Defendant-Appellant.

Before:

BYBEE and HURWITZ, Circuit Judges.

The request for a certificate of appealability (Docket Entry No. 2) is denied

because appellant has not made a “substantial showing of the denial of a

constitutional right.” 28 U.S.C. § 2253(c)(2); see also Miller-El v. Cockrell, 537

U.S. 322, 327 (2003).

Any pending motions are denied as moot.

DENIED.

APPENDIX G

UNITED STATES COURT OF APPEALS

FILED

FOR THE NINTH CIRCUIT

JAN 14 2021

MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

No.

19-16745

D.C. Nos.

3:18-cv-06223-SI

3:15-cr-00541-SI-l

Northern District of California,

San Francisco

JOHN CHINGEN LEE,

ORDER______

Defendant-Appellant.

Before:

THOMAS, Chief Judge, and BRESS, Circuit Judge.

Appellant’s motion for reconsideration (Docket Entiy No. 4) is denied. See

9th Cir. R. 27-10.

No further filings will be entertained in this closed case.

APPENDIX H

Supreme Court of the United States

Office of the Clerk

Washington, DC 20543-0001

April 19, 2021

Scott S. Harris

Clerk of the Court

(202) 479-3011

Mr. John Ching En Lee

1750 Toyon Drive

Concord, CA 94520

Re: John Ching En Lee

___ v. United States

No. 20-1321

Dear Mr. Lee:

The Court today entered the following order in the above-entitled case:

The petition for a writ of certiorari is denied.

Sincerely,

Scott S. Harris, Clerk

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.