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

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Petition for Writ of Certiorari
- **Published:** January 1, 2007

## Text

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withdrawn 72 F.3d 780 (9th Cir. 1996),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

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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]

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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}

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386009_1516%3A1. Public record. Not legal advice.