Petition for Writ of Certiorari — Nash v. United States (No. 07-423)

Q

| D Supreme ( US.

No, 7-423 SEP 25 2007

OFFICE OF THE CLERK

In The

Supreme Court of the Anited States

October Term, 2007

Joseph V. Nash,

Petitioner,

VS.

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 A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

HOWARD R. PRICK

9777 Wilshire Boulevard

Suite 900

Beverly Hills, CA 90212

(310) 277-8438

Attorney for Petitioner

LEGAL PRINTERS, Washington DC @ 202-747-2400 e legalprinters.com

QUESTIONS PRESENTED

1. Whether the Court of Appeals for the Ninth Circuit erred

in denying a certificate of appealability as to the denial of

Petitioner's Motion under 28 U.S.C. §2255 by the district court

which did find ineffective assistance of counsel, but

nevertheless found no prejudice in:

(a) Petitioner’s counsel’s failure to object to the trial

court’s ruling that it, rather than the jury, determined the

materiality element in 18 U.S.C. §1344 offenses, thereby

precluding appellate review under Fed.R.Cnm.P. 52(a);

(b) Petitioner’s counsel’s failure to object or move to

dismiss an indictment when the district court violated the

Speedy Trial Act by erroneously excluding time based on a

vacation planned by second chair government counsel and its

own busy court calendar. '

1. The §2255 Motion pled four grounds of meffective

assistance of counsel, but only two are the subject of this

Petition.

ul

TABLE OF CONTENTS

Page

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Constitutional provisions

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Reasons for granting the writ.......................- 10

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111

TABLE OF AUTHORITIES

Cases:

Page

Allen v. Ornoski, 435 F.3d 946 (9th Cir. 2006) ......... 13

Johnson v. United States, 520 U.S. 461 (1997} ......... 9

United States v. Alferahin, 433 F.3d 1148 (9" Cir.2006) 10-13

United States v. Gaudin, 515 U.S. 506 (1995) .......... 9

United States v. Nash,

64 F.3d 504 (9th Cir.1995),

withdrawn 72 F.3d 780 (9th Cir. 1996),

115 F.3d 1431 (9th Cir.1997),

ee al A, ee passim

United States v. Taylor, 487 U.S. 326 (1984) .......... 15

United States v. Wells, 519 U.S. 482 (1997) ............ 9

1V

TABLE OF AUTHORITIES

Constitutional and Statutory Provisions:

U.S. CONST.:

i TANT OR oO BENG CO a EE aOR oR OE |

Eo POE tr hectare RTE SE ei Mae N Sy oe 2

Title 18 United States Code

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SPR aie ee Ranke area aE Sei Pa Sree PRIS oe 4

a SEED te peta ee tet aialae eae pen oe see noe 5

Title 28 United States Code

I ES ics, pc's areca 6 oS) dene a I

NN es op rae Sold Kd ee ea EOP 4

I EE 65h Na rakes sae eae es passim

PETITION FOR A WRIT OF CERTIORARI

Joseph V. Nash respectfully petitions for a writ of

certiorari to review the judgment of the United States Court of

Appeals for the Ninth Circuit in this case and requests a

remand with direction to issue a certificate of appealability.

OPINION BELOW

The opinion of the Court of Appeals is not reported.

App. la.

JURISDICTION

The Order denying Petitioner’s request for a certificate of

appealability was filed on June 29, 2007. App.la. The

jurisdiction of this Court is invoked under 28 U.S.C. §1254(1)

CONSTITUTIONAL PROVISIONS AND

STATUTES INVOLVED

Constitutional Provisions

The Fifth Amendment to the United States Constitution

provides:

No person shall be held to answer for a capital

or otherwise infamous crime, unless on a

presentment or indictment of a Grand Jury,

except in cases arising in the land or naval

forces or in the Militia, when in actual service in

time of War or public danger; nor shall any

person be subject for the same offense to be

twice put in jeopardy of life or limb, nor shall be

compelled in any criminal case to be a witness

against himself, nor be deprived of life, liberty,

2

Or property, without due process of law; nor

shall private property be taken for public use,

without just compensation.

The Sixth Amendment to the United States Constitution

provides:

In all criminal prosecutions, the accused shall enjoy the

right to a speedy trial and public trial, by an impartial

jury of the State and district wherein the crime shall

have been committed, which district shall have been

previously ascertained by law, and to be informed of

the nature and cause of the nature and cause of the

accusation; to be confronted with the witnesses against

him; to have compulsory process for obtaining

Witnesses in his favor, and to have the Assistance of

Counsel for his defense.

Statutory Provisions

Title 28 U.S.C.§2255 during the relevant time period

provided in pertinent part:

A prisoner in custody under sentence of a court

established by Act of Congress claiming the right to be

released upon the ground 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, may move the

court which imposed the sentence to vacate, set aside or

correct the sentence.

3

Unless the motion and the files and records of the case

conclusiv. - »how that the prisoner is entitled to no

relief, the court shall cause notice thereof to be served

upon the United States attorney, grant a prompt hearing

thereon, determine the issues and make findings of fact

and conclusions of law with respect thereto. If the

court finds that the judgment was rendered without

jurisdiction, or that the sentence imposed was not

authorized by law or otherwise open to collateral

attack, or that there has been such a denial or

infringement of the constitutional rights of the prisoner

as to render the judgment vulnerable to collateral

attack, the court shall vacate and set the judgment aside

and shall discharge the prisoner or resentence him or

grant a new trial or correct the sentence as may appear

appropriate.

A court may entertain and determine such motion

without requiring the production of the prisoner at the

hearing.

An appeal may be taken to the court of appeals from

the order entered on the motion as from a final

judgment on application for a writ of habeas corpus.

An application for a writ of habeas corpus in behalf of

a prisoner who is authorized to apply for relief by

motion pursuant to this section, shall not be entertained

if it appears that the applicant has failed to apply for

relief, by motion, to the court which sentenced him, or

that such court has denied him relief, unless it also

appears that the remedy by motion is inadequate or

ineffective to test the legality of his detention.

Title 28 U.S.C.§2253(c)(2) during the relevant time

4

period provided in pertinent part:

A certificate of appealability may issue under

paragraph (1) only if the applicant has made a

substantial showing of the denial of a constitutional

right.

Title 18 U.S.C.§3161 during the relevant time period

provided in pertinent part:

(c)(1) In any case in which a plea of not guilty is

entered, the trial of a defendant charged in an

information or indictment with the commission of an

offense shall commence within seventy days from the

filing date (and making public) of the information or

indictment, or from the date the defendant has appeared

before a judicial officer of the court in which such

charge 1s pending, whichever date last occurs. If a

defendant consents in writing to be tried before a

magistrate judge on a complaint, the trial shall

commence within seventy days from the date of such

consent.

Title 18 U.S.C.§3162 during the relevant time period

provided in pertinent part:

(2) If a defendant is not brought to trial within the time

limit required by section 3161(c) as extended by

section 3161(h), the information or indictment shall be

dismissed on motion of the defendant. The defendant

shall have the burden of proof of supporting such

motion but the Government shall have the burden of

going forward with the evidence in connection with any

exclusion of time under subparagraph 3161(h) (3). In

5

determining whether to dismiss the case with or

without prejudice, the court shall consider, among

others, each of the following factors: the seriousness of

the offense; the facts and circumstances of the case

which led to the dismissal; and the impact of a

reprosecution on the administration of this chapter and

on the administration of justice. Fatlure of the

defendant to move for dismissal prior to trial or entry of

a plea of guilty or nolo contendere shall constitute a

waiver of the right to dismissal under this section.

Title 18 U.S.C.§1344 during the relevant time period

provided in pertinent part:

Whoever knowingly executes, or attempts to execute,

a scheme or artifice -

(1) to defraud a federally chartered or insured

financial institution; or

(2) to obtain any of the moneys, funds, credits,

assets, securities or other property owned by or

under the custody or control of a federally

chartered or insured financial institution by

means of false or fraudulent pretenses,

representations, or promises, shall be fined not

more than $10,000, or imprisoned not more

than five years, or both.

6

STATEMENT OF THE CASE

A. Procedural History

Petitioner Joseph V. Nash was charged in a 15 count

indictment for false statements and representations in

connection with four loans from four banks. On July 9, 1991,

a 10 count indictment was filed, charging violations of 18

U.S.C.§§1014 and 1344 regarding two bank loans. Count One

charged a violation of §1344 regarding a loan from one bank,

and Counts Two, Three and Four charged violations of §1014

for the same loan. Counts Five through Eight charged

violations of §1344 regarding a loan from another bank, and

Counts Nine and Ten charged violations of §1014 regarding

the same loan. On July 11, 1991, petitioner appeared in this

matter and was arrested in connection with this indictment.

On October 8, 1991, a superseding indictment was

filed, charging nine of the same counts as in the original

indictment; only Count Four in the original indictment did not

appear in the superseding indictment. Counts Seven, Eight and

Nine in the superseding indictment are identical to Counts One,

Two and Four in the original indictment. Counts Ten through

Thirteen in the superseding indictment are identical to Counts

Five through Eight in the original indictment. Finally, Counts

Fourteen and Fifteen in the superseding indictment are

identical to Counts Nine and Ten in the original indictment.

Thus, Counts Seven through Fifteen tn the superseding

indictment were originally charged in the indictment filed on

July 9, 1991, and the Speedy Trial Clock started then as to

those counts.

The only changes in the superseding indictment from the

original indictment were the deletion of one original count and

the addition of Counts One through Six, which added violations

7

of §1014 regarding the two loans. Counts One through Four

charged violations of 18 U.S.C. §1014 regarding two draft tax

returns submitted in a loan application to Liberty National

Bank. Counts Five and Six charged violations of §1014 for the

Same two returns submitted in a loan application to First

Pacific Bank. Count Seven charged a violation of 18 U.S.C.

$1344 for a scheme to defraud by means of false

representations made to obtain two loan extensions from

Union Bank. Counts Eight and Nine charged violations of

§1014 for the same representations already charged in Count

Seven. Counts Ten through Thirteen charged a scheme to

defraud in violation of §1344 in a loan application to Great

Western Bank (uitimately found by the Court of Appeals to be

multiplicitous). Counts 14 and 15 charged separate violations

of §1014 for the same false statements to Great Western

already charged in Counts 10 through 13.

Following a jury trial in the United States District Court

for the Central District of California, petitioner was convicted

on all counts and was sentenced ‘n April 1992 to a term of

imprisonment of 11 years, which he served.* The trial court

instructed the jury, without defense objection, that ‘“‘[flalse

statements of income and assets are material for the purposes

of these instructions.’ Jury Instruction 40.” (emphasis added)

United States v. Nash, 115 F.3d 1431, 1436 (9th Cir.1997).

2. Petitioner was sentenced on Counts | through 6 to

27 months; followed by 2 years on Counts 7, 8, and 9;

followed by 5 years on Counts 10 through 13 ; followed by 2

years on Counts 14 and 15; for a total of 11 years of

incarceration, all followed by a combination of 5 and 3 years

of supervision. At resentencing on remand, the district court

added four additional months for reasons never stated, all of

which Petitioner served.

8

In an opinion filed August 16, 1996, the Ninth Circuit

reversed 10 counts of the 15 counts of conviction, based on this

Court’s decision in United States v. Gaudin, 515 U.S. 506

(1995). United States v. Nash, 64 F.3d 504 (9th Cir. 1995)

(Nash I). Nash successfully petitioned for rehearing, seeking

reversal of the five affirmed counts. United States v. Nash, 72

F.3d 780 (9th Cir.1996) (granting petition for rehearing and

withdrawing Nash 1); United States v. Nash, 76 F.3d 282 (9th

Cir.1996) (Nash JT) (reversing all 15 counts of conviction).

Following this Court’s opinions in United States v.

Wells, 519 U.S. 482 (1997) and Johnson v. United States, 520

U.S. 461 (1997), the Ninth Circuit withdrew Nash // and

affirmed all counts of conviction (with the exception of a

remand to vacate three of the four multiplicitous counts of

$1344 charged in Counts 10 through 13). United States v.

Nash, 115 F.3d 1431 (9th Cir.1997) (Nash III).

The Ninth Circuit remanded Counts 10 through 13 for

resentencing, finding that they were multiplicitous. Nash, 115

F.3d at 1438, 1442. Resentencing was held in the district court

on August 31, 1998, reimposing the same | 1-year sentence.

Nash appealed that sentence, and on July 7, 2000, the Ninth

Circuit again remanded for the limited purpose of vacating

three of the four multiplicitous counts. United States v. Nash,

229 F.3d 1160 (9th Cir.2000). On November 6, 2000, the

court vacated Counts 11, 12 and 13 (18 U.S.C. § 1344). After

the 10-day period for appeal had expired, the district court

issued a Judgment and Commitment Order which mysteriously

added four months to the sentence which had been capped by

the Court of Appeals at 1! years, even though it had stated in

open court that the sentence remained the same. No appeal

was taken by either party, and Petitioner served the entire

sentence. See, n.4, supra.

9

Previously on January 21, 1999, petitioner filed a motion

under 28 U.S.C. §2255. On February 2, 1999, the government

successfully moved to stay briefing and resolution of this

motion pending petitioner's appeal of the resentencing of

August 31, 1998. App. 3a-4a.

Following the resolution of tl 2 appeal, Petitioner filed

an amended Motion under 28 U.S.C. §2255 on October 24,

2001. The government filed its response on May 10, 2002 and

Petitioner filed his traverse on August 29, 2002.

The matter then stood submitted without decision for

four years. On August 24, 2006, the district court (now the

third court on the Motion) filed its Order Denying the Motion

in its entirety. App 2a-lla. On October 10, 2006, Petitioner

filed a timely notice of appeal with a request for a certification

of appealability. On June 29, 2007, the Court of Appeals

denied his request for a certificate of appealability without

comment. App la.

This Petition concerns the refusal of the Ninth Circuit

Court of Appeals, in clear contravention of the rule established

by this Court, to issue a certificate of appealability for two

issues unsuccessfully raised by Petitioner in the district court

on his $2255 Motion, even though the appellate court

recognized and conceded that at least one issue involved open

and debatable questions of law. Petitioner seeks an order

remanding this matter to the appellate court and directing it to

issue a certificate of appealability."

B. Opinion of the Court of Appeals

The decision of the Court of Appeals of which review is

sought is its denial without explanation of Petitioner's request

10

for a certificate of appealability from the denial of his Motion

under 28 U.S.C. §2255. App. la

REASONS FOR GRANTING THE PETITION

I

THE APPELLATE COURT?’S DENIAL CONFLICTS

WITH ITS HOLDING IN ALFERHANIN THAT

OLANO LEFT OPEN WHETHER AN

INSTRUCTIONAL ERROR ON MATERIALITY CAN

AFFECT SUBSTANTIAL RIGHTS UNDER PLAIN

ERROR ANALYSIS WITHOUT ACTUALLY

PREJUDICING THE DEFENDANT AND THUS

PETITIONER IS ENTITLED TO A CERTIFICATE OF

APPEALABILITY ON THIS OPEN ISSUE

The district court accepted the Ninth Circuit’s findings

(1) that Petitioner’s counsel failed to object to the trial court’s

erroneous determination of materiality in the §1344 Counts

(Counts 10-15); (2) that “the error was plain at the time of

appellate consideration”; and (3) “that it affects substantial

rights.” Nash, 115 F.3d 1437. But the Ninth Circuit held that

“Nash could not meet the fourth prong of the plain error

analysis—that the error seriously affected the fairness, integrity

or reputation of the proceedings.” /d.

However, in its Order, the district court essentially

dismissed any difference between plain error review under

52(b), required by counsel's failure to object, and harmless

error review under 52(a). The district court found that “Rules

52(a) and 52(b) both address whether an error committed

during trial affected ‘substantial nghts..’” App. 1 la.

The district court neglected to note that the Ninth Circuit

1]

had already found the trial court’s error “‘affect[ed] substantial

rights.” Nash, 115 F.3d 1437. The district court stated that the

result of the Ninth Circuit’s review of the instructional error

would have been the same whether reviewed under 52(a) or

(b). App.|la-12a.

Neither the district court nor the Ninth Circuit accorded

its decision in United States v. Alferahin, 433 F.3d 1148. (9"

Cir.2006), filed the prior January. In A/ferahin, the Court held

that the omission of the an instruction on the element of

materiality in false statement cases prejudiced the defendant

and reversed. /d., at 1162. It found it unnecessary to address

“the question of whether an error can ‘affect’ a defendant's

substantial rights for purposes of plain error analysis without

actually prejudicing the defendant.” /d., atn.4._ However, it

noted that

That question appears to be an open one, as both the

Supreme Court and the Ninth Circuit have dodged it.

See Olano, 507 U.S. at 735, 113 S.Ct. 1770(“We need

not decide whether the phrase ‘affecting substantial

rights’ is always synonymous with ‘prejudicial.’ ”’);

Perez, 116 F.3d at 847(“[W]e need not make the

difficult determination of ... ‘whether the phrase

“affecting substantial rights” is always synonymous

with “prejudicial” ° (quoting Olano, 507 U.S. at 735,

113 S.Ct. 1770) ).

Alferahin, 433 F.3d at 1162 n.4. (9" Cir.2006).

In order to obtain a certificate of appealability----

A petitioner must make "a substantia] showing of the

denial of a constitutional right" to warrant a certificate

12

of appealability. 28 U.S.C. § 2253(c)(2); see Slack v.

McDaniel, 529 U.S. 473, 483-84, 120 S.Ct. 1595, 146

L.Ed.2d 542 (2000). ‘The petitioner must demonstrate

that reasonable jurists would find the district court's

assessment of the constitutional claims debatable or

wrong.” Slack, 529 U.S. at 484, 120 S.Ct. 1595; see

also Miller-Fl v. Cockrell, 537 U.S. 322, 338, 123 S.Ct.

1029, 154 L.Ed.2d 931 (2003). To meet this ‘threshold

inquiry,’ Slack, 529 U.S. at 482, 120 S.Ct. 1595, the

petitioner “ ‘must demonstrate that the issues are

debatable among jurists of reason; that a court could

resolve the issues [in a different manner]; or that the

questions are adequate to deserve encouragement to

proceed further.” ” Lambright, 220 F.3d at 1025

(alteration and emphasis in original) (quoting Barefoot

v. Estelle, 463 U.S. 880, 893 n. 4, 103 S.Ct. 3383, 77

L.Ed.2d 1090 (1983) (internal quotation marks

omitted)).

Id., at 951.

Thus, the Ninth Circuit’s denial of a certificate of

appealability on this issue stands in sharp contrast to its

holding that the question presented represents an “open” one.

Alferahin, 433 F.3d. 1161,n.4. Ifthe question is “open,” then

at this stage, “reasonable jurists would find the district court's

assessment of the constitutional claims debatable,” and a

certificate of appealability should be granted on this issue.

Slack, 529 U.S. at 484, 120 S.Ct. 1595.

Thus, the matter should be remanded on this issue in

order for the Ninth Circuit to address the very issue it

determined was left open by Olano—whether an error can affect

a defendant's substantial nghts for purposes of plain error

13

analysis without actually prejyudicing the defendant.

Il

REVIEW IS NECESSARY TO RESOLVE

WHETHER A HABEAS COURT CAN

FIND THAT THE SPEEDY TRIAL ACT

WAS VIOLATED AND THAT THE TIME-

BARRED CHARGES BE DISMISSED,

BUT ALSO FIND THAT THE TRIAL JUDGE

WOULD NEVERTHELESS HAVE DISMISSED

THEM WITHOUT PREJUDICE AND THAT

PETITIONER THEREFORE SUFFERED

NO PREJUDICE

The district court found that Nash’s Speedy Trial Act

and Sixth Amendment rights had indeed been violated when

the trial court excluded time for its “busy court calendar” and

for the “prosecutor’s vacation.” It also found that Petitioner’s

counsel made no objection or motion to dismiss the time-barred

counts. App. 6a. The court did not dispute Nash’s claim that

counsel’s failure constituted ineffective assistance. United

States v. Palomba, 3\ F.3d 1456, 1461 (9th Cir. 1994) (failure

to move for dismissal of counts barred by Speedy Trial Act is

ineffective assistance of counsel).

The district court stated that “Nash was originally

indicted on July 9, 1991,” and “[o]n October 8, 1991, a grand

jury returned a fifteen count superseding indictment...” App

2a.. The district court’s Order appeared erroneously to

assume that the entire case (“If the case had been dismissed...’’)

was the subject of Nash’s Speedy Trial claim. App.7a.

In fact, Nash’s §2255 claim is that only the Counts

‘

14

charged in the original indictment were subject to the

undisputed Speedy Trial Act violation, not the “entire case.”

App.7a.. In the superseding indictment which went to trial in

violation of the Speedy Trial Action, Counts Seven through

Fifteen were subject to dismissal. These counts constituted 9

of the 11 year total sentence. See, n.2, supra.

The district court found that the Government did “not

address whether the 84 days were properly excluded.”

App.6a.. In short, the Government did not dispute that the 84

days were improperly excluded. The court found that

Petitioner’s counsel failed to object to that violation which

allowed “the trial to commence 69 days after required by the

Speedy Trial Act.” /d. The district court did not mention that

Petitioner’s counsel represented to the trial court that he did

not ask to continue cither a motion hearing date set for

November 25, 1991, or the trial date set for December 9, 1991.

The district court then reviewed the options available to

the trial court under 18 U.S.C. §3162(a)(2): “the trial court

could have dismissed the case with or without prejudice.”

App.7a. The district court then stated that “[i]f the court had

dismissed the case with prejudice, Nash can show resulting

prejudice from the underlying Sixth Amendment violation.”

App. 7a.

The district court then went ona flight of inspiration,

unsupported by the record, and erroneously concluded:

If the case had been dismissed without prejudice,

however, the Government almost assuredly would have

reindicted Nash, and Nash makes no showing that the

new trial would have turned out differently.

15

Id.

The district court recognized its duty to “consider

whether the defendant was prejudiced by the delay. United

States v. Taylor, 487 U.S. 326, 334 (1984).” However, it

failed to consider the prejudicial effects of a dismissal without

prejudice outlined in 7aylor:

Dismissal without prejudice is not a toothless sanction:

it forces the Government to obtain a new indictment if

it decides to reprosecute, and it exposes the prosecution

to dismissal on statute of limitations grounds. Given

the burdens borne by the prosecution and the effect of

delay on the Government's ability to meet those

burdens, substantial delay well may make

reprosecution, even if permitted, unlikely.

/d., at 342.

The District court made no such analysis and failed to

consider a host of alternatives, which would have formed the

basis for prejudice. It rejected, without any basis in the record,

that the trial court would have dismissed with prejudice. It

never considered whether any of the dismissible charges would

have been barred by the statute of limitations, such that they

could not have been reindicted. The district court never

considered whether the reindictment would have had to be

presented to a fresh grand jury, since the original grand jury’s

term had ended. The Order did not consider whether the

additional time to secure a new indictment and set a new trial

date would have led to new defense counsel.

It is also possible that the Government may not have

reindicted Nash as to Counts 7 through 15, which admittedly

should have been dismissed by the trial court, had defense

16

counsel objected, and thereby streamlined the trial to Counts |

through 6, which were not time barred.

In short, the district court selected the most severe

alternative without any support in the record and neglected to

consider any prejudice to the petitioner required in Taylor.

Conclusion

For these reasons, the Petition for Writ of Certiorari

should be granted and the matter remanded to the Court of

Appeals for the Ninth Circuit to issue a certificate of

appealability as to either or both of the issues presented here.

Respectfully submitted,

HOWARD R. PRICE

9777 Wilshire Boulevard

Suite 900

Beverly Hills, CA 90212

(310) 277-8438

Attorney for Petitioner

September 24, 2007

APPENDIX

1. Order of the Court of Appeals for the Ninth Circuit

denying Request for Certificate of Appealability, filed June 29,

2007.

2. Order of the District Court for the Central District of

California denying Motion Under 28 U.S.C. Section 2255, filed

August 24, 2006. (pages 1-9, 19,pertinent to the two Issues

presented here).

la

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA, ) No. 06-56460

)

Plaintiff-Appellee, ) DC. Nos.

) CV-99-00557-DT

V. ) CR 91-0609-LEW

)

JOSEPH V. NASH, )

)

)

Defendant-Appellant.

)

Filed June 29, 2007; Cathy A. Catterson, Clerk

U.S. COURT OF APPEALS

Before: RYMER and GRABER, Circuit Judge

The request for a certificate of appealability 1s denied. See

28 U.S.C. § 2253(c)(2)

2a

THIS CONSTITUTES [ENTERED CLERK, US

NOTICE OF DISTRICT COURT

ENTRY AS REQUIRED AUG 2 5 2006]

BY FRCP,

RULE 77(d)

UNITED STATES DISTRICT COURT

CENTRAL DISTRICT OF CALIFORNIA

UNITED STATES, CASE NO. CV 99-0557 DT

CASE NO. CR 91-0609 LEW

Respondent,

v. ORDER DENYING

PETITIONER JOSEPH V.

JOSEPH V. NASH, NASH'S MOTION TO

VACATE, SET ASIDE OR

Petitioner. CORRECT HIS SENTENCE

PURSUANT TO 28 UNITED

STATES CODE SECTION

2255

I. Background

Petitioner Joseph V. Nash moves to vacate, set aside, or

correct his sentence pursuant to 28 United States Code section

2255, alleging ineffective assistance of counsel in violation of

the Sixth Amendment to the United States Constitution. This

motion is denied.

A. Factual Summary

Nash was originally indicted on July 9, 1991. On

October 8, 1991, a grand jury returned a fifteen-count

superceding indictment charging Nash with Eve counts of bank

fraud in violation of 18 United States Code section 1344 and

ten counts of making false statements to a federally-insured

lending institution in violation of 18 United States Code

section 1014. Nash's trial began on December 10, 1991. On

3a

January 21, 1992, a jury convicted Nash of all fifteen counts.

District Judge Laughlin E. Waters sentenced Nash to eleven

years imprisonment, to be followed by five years of supervised

release. Judge Waters also imposed a special assessment of

$750 and ordered restitution.

On appeal, the Ninth Circuit vacated and remanded

Nash's sentence as to counts 10-13 (finding them to be

multiplicitous), but otherwise affirmed. See United States v,

Nash, 115 F.3d 1431 (9th Cir. 1997), cert. denied 522 U.S.

1117 (1998). On remand, Judge Waters sentenced Nash to

eleven years and three months imprisonment (five years on

Counts 10-13 to run concurrently to each other, but to run

consecutive to the six years and three months imposed on

Counts 1-7) and imposed a $600 special assessment. Nash

again appealed, and also filed this motion under 28 United

States Code section 2255. Judge Waters stayed the section

2255 motion pending Nash's appeal to the Ninth Circuit.

On appeal, the Ninth Circuit again remanded to allow

the district court to vacate three of the four multiplicitous

counts, but otherwise affirmed. See United States v Nash, 229

F.3d 1160 (9th Cir. 2000). On November 6, 2000, the district

court vacated counts 11-13. The stay on this motion was then

lifted.

Petitioner's motion is based upon four separate

instances of alleged ineffective assistance of counsel. The facts

underlying each specific allegation are found within the

relevant sections of the Court's analysis, infra.

B. Procedural Summary

On January 21, 1999, Petitioner filed the present

Motion Pursuant to 28 United States Code 2255 to Vacate, Set

Aside or Amend his Sentence, in the United States District

Court for the Central District of California, which was assigned

to Judge Laughlin E. Waters.

On March 17, 1999, the Court ordered that Petitioner's

4a

Motion be stayed until his pending appeal in his criminal case

was resolved.

On October 24, 2001, following the resolution of that

appeal, Petitioner filed

[Page 2 of original document]

an Amended Motion Pursuant to 28 United States Code 2255

to Vacate, Set Aside or Amend his Sentence. On May 10, 2002,

Respondent filed a Memorandum in Opposition to Petitioner's

Amended Motion. On August 29, 2002, Petitioner filed a

Traverse to Respondent's Memorandum in Oppesition.

On June 5, 2002, this matter was reassigned from Judge

Waters to Judge William Matthew Byrne, Jr.

On August 19, 2005, the Court ordered the parties to

provide a status report concerning this matter. On September

8, 2005, Petitioner filed his Status Report. On September 16,

2005, Respondent filed its Response to Petitioner's Status

Report. On October 12, 2005, Petitioner filed a Reply to the

Respondent's Response.

On January 24, 2006, this matter was reassigned from

Judge Byrne to Judge Dickran Tevrizian.

On March 15, 2006, the Court issued a Minute Order

taking this motion under submission.

On May 11, 2006, the Court ordered supplemental

briefing on Ground 3 of Petitioner's Motion. On May 26, 2006,

Petitioner filed his Supplemental Brief. On June 30, 2006,

Respondent filed its Opposition to Petitioner's Supplemental

Brief. On July 11, 2006, Petitioner filed his Reply to the

Opposition.

Il. Discussion

A. Standard

"The [Supreme] Court has recognized that 'the [Sixth

Sa

Amendment] right to counsel is the mght to the effective

assistance of counsel." Strickland v. Washington, 466 U.S.

668, 686 (1984) (quoting McMann v. Richardson, 397 U.S.

759, 771 (1970)). “The benchmark for judging any claim of

ineffectiveness must be whether counsel's conduct so

undermined the proper functioning of the adversarial process

that the tnal cannot be relied on as having produced a just

result."

[Page 3 of original document]

Strickland, 466 U.S. at 686.

In order to succeed on a claim of ineffective assistance

of counsel, the defendant must show (1) that his counsel's

representation was "deficient" in other words, that it "fell

below an objective standard of reasonableness," and (2) that

prejudice resulted, meaning "a reasonable probability that, but

for counsel's unprofessional errors, the result of the proceeding

would have been different." Id. at 686, 688, 694.

B. Analysis

Nash argues that there are four mutually exclusive

bases for finding that there was ineffective assistance of

counsel by his trial counsel, James A. Twitty. He argues that

Twitty was ineffective in: (1) failing to move to dismiss the

case under the Speedy Trial Act; (2) failing to object to the trial

judge's allegedly improper instruction to the jury on

materiality; (3) failing to disclose to the Government the

existence of Nash's expert and failing to inform the court

accurately regarding the substance of the expert's proposed

testimony; and (4) failing to object to, or request a curative

instruction, regarding the Government's purportedly improper

cross-examination of Nash.

The Government argues that Twitty's representation did

6a

not fall below an objective standard of reasonableness, citing

Twitty's declaration as its main evidentiary support.' The

Government also argues that, even if Twitty's

| Page 4 of original document]

representation was deficient, it did not result in prejudice.’

# Speedy Trial Act

18 United States Code section 3161(c)(1) states that

"the trial of a defendant ... shall commence within seventy days

from the filing date (and making public) of the information or

indictment." 152 days elapsed between the filing of the original

indictment and the beginning of Nash's trial. Nash concedes

that the trial court properly excluded thirteen of those days (for

the filing of various motions). However, Nash challenges the

trial court's exclusion of 84 more days, alleging that the reasons

1. Part of Petitioner's motion is factually driven by Nash's

contentions concerning trial strategy on one side and Twitty's contentions

on the other. Nash calls into question Twitty's credibility, given the fact that

in 1996 the State Bar of California suspended Twitty for various ethical

violations, including failing to return unearned fees to his clicnts and

improper contact with an already-represented client. The Court is somewhat

dubious of Twitty's credibility in this matter, but it is immaterial to its

disposition of the case.

2. In its Response to Petitioner's Status Report, the Government

sought leave to tender supplemental arguments concerning Petitioner's

motion. Leave to do so is denied as beyond the scope of the supplemental

briefing as set forth by Judge Byme, and the Court will not consider any

such supplemental arguments. Regardless, though, the Court afforded both

parties an additional opportunity to address Ground 3 of Petitioner's Motion

in the most recent set of supplemental briefing.

7a

given by Judge Waters (a busy court calendar and the

prosecutor's vacation) were improper. Thus, Nash argues,

Twitty's failure to object to the excludability of the 84 days —

thus allowing the trial to commence 69 days after required by

the Speedy Trial Act — constituted ineffective assistance of

counsel.

The Government does not address whether the 84 days

were properly excluded. Instead, the Government relies entirely

on Twitty's contention that Nash repeatedly told Twitty to

delay the trial as long as possible because of Nash's possible

cooperation with a separate grand jury investigation. Nash

claims he never made such requests to Twitty.

This factual dispute makes it difficult for this Court to

determine, without an evidentiary hearing, whether Twitty's

representation fell below an objective standard of

reasonableness. However, Nash's claim fatls for a different

reason --because he

[Page 5 of original document]

cannot show resulting prejudice, or that the outcome of the case

would have been different had Twitty made a speedy trial

motion. "[A] court need not determine whether counsel's

performance was deficient before examining the prejudice

suffered by the defendant as a result of the alleged

deficiencies.” Strickland, 466 U.S. at 697.

Assuming a violation of the Speedy Trial Act occurred,

the trial court could have dismissed the case with or without

prejudice. ce 18 U.S.C. § 3162(a)(2). Ifthe court had dismissed

the case with prejudice, Nash can show resulting prejudice

from the underlying Sixth Amendment violation. If the case

had been dismissed without prejudice, however, the

Government almost assuredly would have re-indicted Nash,

and Nash makes no showing that the new trial would have

turned out differently. The question therefore becomes whether

8a

the trial court would have dismissed the case with or without

prejudice. In dismissing a case because of a violation of the

Speedy Trial Act, "[a] district court has broad discretion

whether to dismiss with or without prejudice." United States v

Jordan, 915 F.2d 563, 566 (9th Cir. 1990) (internal citation

omitted). In making this determination, "the court shall

consider ... the seriousness of the offense: the facts and

circumstances of the case which led to the dismissal; and the

impact of a reprosecution ... on the administration of justice."

18 U.S.C. § 3162(a)(2). The court should also consider whether

the defendant was prejudiced by the delay. United States v.

Taylor, 487 U.S. 326, 334 (1988). The choice of whether to

dismiss with or without prejudice "depends on a careful

application of the statutorily enumerated factors to the

particular case; there is no presumption in favor of either

s-nction.” United States v. Clymer, 25 F.3d 824, 831 (9th Cir.

1994) (citing Taylor, 487 U.S. at 334).

These factors indicate that the district court would have

dismissed the case without prejudice. First, the court must

consider the seriousness of the offense, and balance it with the

seriousness of the delay. Clymer 25 F.3d at 831 (citations

omitted). Because of the nature of Nash's crimes — five counts

of bank fraud and ten counts of making false statements — and

their resulting eleven-year sentence, these

[Page 6 of original document}

were serious enough offenses to warrant dismissing the case

without prejudice. See, United States v. Scott, 270 F.3d 30, 58

(1st Cir. 2001) (bank fraud serious offense in Speedy Trial Act

analysis). Furthermore, the delay here was, at most, just 69

days.

Regarding the facts and circumstances of the case

which led to dismissal, “the court should focus on the

culpability of the delay-producing conduct," United States v.

9a

Saltzman, 984 F.2d 1087, 1092 (10th Cir. 1993), and the "sheer

length" of the period involved. Clymer 25 F.3d at 831-32.

Here, there is no indication that trial was delayed for any

improper purpose and the prosecutors contributed to just a

portion of the relatively short delay, which also supports a

decision to dismiss without prejudice.

Third, Nash makes no showing that his reprosecution

would impair the administration of justice, and the Court

cannot identify any reason why it would.

Lastly, Nash makes no showing that he was prejudiced

by the delay. Taylor, 487 U.S. at 341 (short delay with no harm

to trial preparation weighs against dismissing case with

prejudice); Clymer, 25 F.3d at 832 (inability to find defense

witness and loss of evidence after long delay, loss of ability of

prepare for trial and loss ofliberty is prejudicial to defendant).

Neither party argues any other factors that the court should

have considered in this instance.

Nash has not shown that Twitty's failure to make such

a speedy trial motion resulted in prejudice, so his motion to

vacate the sentence on this ground is denied.

2. Judge Water’s Instruction on Materiality

Materiality is not a required element of 18 United States Code

section 1014, but it is an element of section 1344. See Nash,

115 F.3d at 1435-36. While instructing the jury on these two

statutes, Judge Waters stated, "False statements of income and

assets are material for the purposes of these instructions.” Nash

argues that the jury might have applied this instruction to both

section 1014 and section

[Page 7 of original document]

1344, and thus materiality under section 1344 was not left for

the jury to decide, in violation of United States v. Gaudin, 515

U.S. 506 (2002).

10a

On direct appeal, the Ninth Circuit reviewed this

instruction on mate'iality by Judge Waters and held that, even

if the trial court erroneously instructed on materiality, the

instruction did not prejudice Nash because "[t]here is no

question" that the materiality element was met in the

underlying case. Nash, 115 F.3d at 1437. Thus, even if Twitty's

representation fell below an objective standard of

reasonableness for failing to object to the materiality

instruction, Nash cannot show resulting prejudice.

Nash argues that the result would have been different

because, had Twitty objected, the Court of Appeals would have

reviewed the decision for harmless en-or under Federal Rule of

Criminal Procedure 52(a) rather than for plain error under Rule

52(b). Rules 52(a) and 52(b) both address whether an error

committed during tnal affected "substantial rights,” 1.e.,

whether the error was "prejudicial." United States v. Olano,

507 U.S. 725, 734 (1993) (prejudicial error, or one that affects

substantial rights, required under Rules 52(a) and 52(b)).

When the defendant has made a timely objection to an

error and Rule 52(a) applies, a court of appeals

normally engages in a specific analysis of the district

court record — a so-called "harmless error" inquiry — to

determine whether the error was prejudicial. Rule 52(b)

normally requires the same kind of inquiry, with one

important difference: It is the defendant rather than the

Government who bears the burden of persuasion with

respect to prejudice.

Id. The Court of Appeal's language regarding prejudice —

"[t]here is no question that the representations [by Nash] on

which the bank relied were material for purposes of section

1344" (emphasis added) — confirms that it is immaterial who

had the burden of persuasion, Nash, 115 F.3d at 1437, and that

it would have made the same

[Page 8 of onginal document]

lla

decision whether reviewing the matter under Rule 52(a) or

Rule 52(b). Twitty's failure to object to the trial judge's

materiality instruction did not result in Prejudice.

Nash has not shown that Twitty's failure to object to the

materiality instruction resulted in prejudice, so his motion to

vacate the sentence on this ground is dented.

[end of Order pertinent to the issue presented in this Petition|

[Page 9 of original document]

12a

lil. Conclusion

For the foregoing reasons, the Court DENIES Nash's

Motion to Vacate, Set Aside or Correct his Sentence under 28

United States Code section 2255.

IT 1S SO ORDERED.

DATED: August 23, 2006

DICKRAN IEVRIZIAN

Dickran Tevrzian, Senior Judge

United States District Court

[Page 19 of original document}