Opinion
CV-22-00752-PHX-DGC (JZB)
03-22-2024
Aaron Anthony Ordonez, Petitioner, v. United States of America, Respondent.
AMENDED REPORT AND RECOMMENDATION
Honorable John Z. Boyle United States Magistrate Judge
TO THE HONORABLE DAVID G. CAMPBELL, SENIOR UNITED STATES DISTRICT JUDGE:
On May 3, 2022, Movant Aaron Anthony Ordonez filed a Motion to Vacate, Set Aside, or Correct a Sentence by a person in federal custody pursuant to 28 U.S.C. § 2255. (Doc. 1.) On December 1, 2023, with leave of the Court, Movant filed an Amended Motion. (Doc. 34.)
Citations to “Doc.” are to the docket in CV-22-00752-PHX-DGC-JZB. Citations to “CR Doc.” are to the docket in the underlying criminal case, CR-18-00539-DGC.
I. Summary of Conclusion.
Movant raises 18 grounds for relief in the Amended Petition. Grounds 1-17 were raised in the Petition, and Ground 18 was added in the Amended Petition. Because Movant has not shown that his trial counsel's performance was deficient, or that he suffered prejudice as a result of the alleged errors, it is recommended the Amended Motion be denied and dismissed with prejudice.
II. Background.
A. Conviction and Sentencing.
On April 17, 2018, a grand jury indicted Movant, charging him with five counts of distribution of child pornography in violation of 18 U.S.C. § 2252(a)(2), (b)(1), and § 2256, and one count of possession of child pornography in violation of 18 U.S.C. § 2252(a)(4)(B), (b)(4), and § 2256. (CR Doc. 7.) The indictment alleged Movant used a torrent file to download and distribute sexual depictions of minors on the following dates: December 2, 2017 (Count One), December 6, 2017 (Count Two), December 18, 2017 (Count Three), December 29, 2017 (Count Four), and February 5, 2018 (Count Five). (Id.) The indictment alleged Movant possessed and viewed child pornography on April 4, 2018 (Count Six). (Id.)
On August 29, 2019, after a four-day trial, a jury found Movant guilty as charged on the six counts. (CR Doc. 156.) On February 10, 2020, the Court sentenced Movant to a term of imprisonment of 168 months followed by lifetime supervised release. (CR Doc. 157 at 37-39.)
B. Direct Appeal.
Movant timely appealed. (CR Doc. 135.) Movant argued, inter alia, that he received ineffective assistance of counsel in violation of the Sixth Amendment. (Doc. 1-5 at 2.) The Ninth Circuit declined to rule on whether Movant's trial counsel provided ineffective assistance, finding neither exception present permitting such review, and affirmed his conviction. (Doc. 1-5 at 2-4.)
III. Amended Motion to Vacate, Set Aside, or Correct Sentence.
In the Amended Motion, Movant presents 16 grounds asserting ineffective assistance of counsel, one ground asserting cumulative error, and one ground asserting ineffective assistance of appellate counsel. (Doc. 34.)
The Court notes that counsel for Movant has done an exceptional job organizing, summarizing, and supplementing Movant's claims in a 65-page amended motion. This advocacy was not necessarily required, as the original Report and Recommendation had already been filed. To better assist the district court, this Court elects to file an Amended Report and Recommendation now that each of Movant's grounds are newly organized and presented for review.
Federal prisoners may move to vacate, set aside, or correct their sentence on the ground their 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.” 28 U.S.C.§ 2255. A petition under 28 U.S.C. § 2255 is meant as an “extraordinary remedy” not to be granted lightly. Bousley v. United States, 523 U.S. 614, 621 (1998).
IV. Grounds One Through Seventeen - Ineffective Assistance of Counsel Claims.
To succeed on a claim of ineffective assistance of counsel, a movant must show: (1) counsel's performance was deficient, meaning “counsel's representation fell below an objective standard of reasonableness,” and (2) “the deficient performance prejudiced the [movant's] defense.” Strickland v. Washington, 466 U.S. 668, 687-88 (1984). To establish prejudice, the movant must show “there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different.” Id. at 694. “The likelihood of a different result must be substantial, not just conceivable.” Harrington v. Richter, 562 U.S. 86, 112 (2011); see James v. Borg, 24 F.3d 20, 26 (9th Cir. 1994) (noting that petitioner needs to “identify what evidence counsel should have presented” to show his innocence). The court must also “indulge a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance; that is, the defendant must overcome the presumption that, under the circumstances, the challenged action ‘might be considered sound trial strategy.'” Strickland, 466 U.S. at 689 (citation omitted). The Court need not decide whether counsel's performance was deficient when the claim of ineffectiveness may be rejected for lack of prejudice. See id. at 697.
A. Ground One - Failure to Request Voluntariness Hearing.
In Ground One, Movant argues his trial counsel rendered deficient performance when he did not move to suppress Movant's statements made during an interrogation for lack of voluntariness. (Doc. 34 at 44.) Movant submits his statements during Agent Daniel's “interrogation were not voluntary because he was impaired by alcohol and huffing when he made them.” (Id. at 45.) He argues the agent knew Movant “was impaired due to alcohol and drugs” and Movant's statements “were not the product of a rational intellect and a free will.” (Id .) Movant also asserts counsel “never presented any evidence on the issue of voluntariness so that the jury could decide how much weight to accord his statements.” (Id.)
The Court notes that Movant's original Motion included a “Statement of Facts” that referenced an affidavit from Movant's mother, Renee Villarreal. (Doc. 1-1 at 2.) The affidavit asserts that Agent Daniels “lied to get [Movant] to come home” because the agent “called him and led him to believe that [his mother] was fatally wounded.” (Doc. 1-1 at 9.) The affidavit asserted the FBI agent allegedly ignored Movant's question of whether he needed a lawyer. (Docs. 1-1 at 9.) Movant does not include these allegations in the Amended Motion, so they are not addressed in the Amended Report and Recommendation.
A person subject to custodial interrogation must be advised of his “right to remain silent, that any statement he does make may be used . . . against him, and that he has a right to the presence of an attorney, either retained or appointed.” Miranda v. Arizona, 384 U.S. 436, 444 (1966). The police may interrogate a suspect only if there is a voluntary, knowing, and intelligent waiver of these constitutional rights. See id; Patterson v. Illinois, 487 U.S. 285, 292 (1988). Even absent a Miranda violation, a confession must be suppressed, “when the totality of the circumstances demonstrates that the confession was involuntary.” DeWeaver v. Runnels, 556 F.3d 995, 1003 (9th Cir. 2009) (citing Dickerson v. United States, 530 U.S. 428, 434 (2000)). However, where a confession was obtained after a valid Miranda waiver, the confession was likely voluntary. See id.; Missouri v. Seibert, 542 U.S. 600, 608-09 (2004) (“[G]iving the warnings and getting a waiver has generally produced a virtual ticket of admissibility.”). In addition, “[a] confession made in a drug or alcohol induced state, or one that is the product of physical or psychological pressure, may be deemed voluntary if it remains ‘the product of a rational intellect and a free will.'” United States v. Banks, 282 F.3d 699, 706 (9th Cir. 2002), rev'd on other grounds, 540 U.S. 31, (2003) (quoting Medeiros v. Shimoda, 889 F.2d 819, 823 (9th Cir. 1989)). The Ninth Circuit has held that “an intoxicated individual can give a knowing and voluntary waiver, so long as that waiver is given by his own free will.” Matylinsky v. Budge, 577 F.3d 1083, 1095 (9th Cir. 2009).
1. Voluntariness.
The record does not support Movant's contentions that his statements were involuntary because of the influence of drugs or alcohol. The transcript indicates Agent Daniels arrived at Movant's home to execute a search warrant on Wednesday April 4, 2018, and began the interview by stating, “First off, thank you for coming back here. I know you didn't have to.” (Doc. 10-1 at 11.) Movant gave his name, date of birth, social security number, and phone number. (Id.) The agent provided Movant with a copy of the search warrant. (Id. at 12-13.) Movant replied “Okay. I see what this is for, I guess. Okay.” (Id. at 13.) Agent Daniels advised Movant of his rights. (Id. at 13-14.) Movant responded he understood them. (Id. at 14.) Agent Daniels asked if Movant was “willing to speak with us at this time.” (Id.) Movant responded, “Sure.” (Id.) Agent Daniels explained that a person was using “an IP address.” (Id.) He asked Movant if he knew “what and IP address is[.]” (Id.) Movant said, “Yeah. It's to talk to the computer.” (Id.) Agent Daniels explained the purpose of the search warrant was to investigate the “IP address that comes back to this residence on a peer-to-peer file sharing software.” (Id. at 15.) Movant responded, “I used a torrent way, way back.” (Id.) Agent Daniels stated the “torrent [was used] to share child pornography over that peer-to-peer.” (Id.) Movant proceeded to answer each of Agent Daniels' questions, explaining that Movant possessed a custom-built desktop primarily used for streaming video games that no one else in the home used. (Id. at 15-25.) Movant admitted he had used a torrent to download and share child pornography in the past. (Id. at 12, 28-42). He later clarified that he had viewed child pornography within the past one or two years. (Id. at 80.) The agent asked Movant if he was “currently on any drugs right now?” (Id. at 65.) Movant answered “No.” (Id.) The agent then asked, “When was the last time you got high or drank?” (Id. at 65-66.) Movant answered, “Like I got drunk last night and the night before and the night before. But I didn't get high since Friday, yes.” (Id. at 66.)
Movant does not contest that Miranda warnings were given. (Doc. 1-2 at 27-28). Movant argues instead his admissions were involuntary based on his substance abuse. (Id.) The transcript indicates, however, that Movant answered the questions freely and rationally. The Court has reviewed the audio recording of the interview filed by Respondent. (Doc. 13.) The recording does not reflect intoxication and is consistent with Movant's statement that he had not been high for several days.
Movant submits the opinions of Dr. Frank LoVecchio, presumably to support the claim that Movant's statements on April 4, 2018, were involuntary. (Doc. 1-2 at 33.) Dr. LoVecchio reviewed Movant's medical records and “interviewed” Movant on November 11, 2021. (Id. at 33-34.) Dr. LoVecchio does not state he reviewed the transcript or recording of Movant's interview with Agent Daniels on April 4, 2018. Dr. LoVecchio concluded Movant “had some degree of mental impairment and decreased reasoning associated with his inhalant use.” (Id. at 36.) Although this statement may be true, Dr. LoVecchio does not say when Movant was impaired. Dr. LoVecchio does not provide an onset date or opine that Movant was impaired when he spoke with Agent Daniels in 2018. Dr. LoVecchio concludes that “[b]ased on my interview it appears that [Movant] was comatose for multiple times throughout the day and his computer was accessible by multiple people.” (Id. at 36.) Dr. LoVecchio reviewed no investigation reports and provided no medical basis to conclude that Movant was comatose at any time on April 4, 2018. Dr. LoVecchio's conclusion about Movant's computer is outside the scope of his expertise and has no bearing on the question of Movant's sobriety at the time of Agent Daniel's interview. Dr. LoVecchio does not present an opinion about the voluntariness of Movant's statements on April 4, 2018. The Court concludes the transcript and recording of Movant's interview are far more persuasive than Dr. LoVecchio's opinions.
Defendant was ordered detained in this case on August 14, 2019. (CR Doc. 97.)
Here, a motion to suppress Movant's statements as involuntary was unlikely to prevail. See U.S. v. Kelley, 953 F.2d 562, 564 (9th Cir. 1992) (finding statement voluntary where defendant “remained coherent and responsive” despite “chills, shaking, and trembling” from heroin withdrawal); U.S. v. Coleman, 208 F.3d 786, 791 (9th Cir. 2000) (finding symptoms of heroin withdrawal, including lethargy and physical discomfort, did not render defendant's statements involuntary). Mr. Ber states he “did not find any issues to bring to the Court's attention regarding voluntariness[]” because his “review of the interview recording appeared to show Mr. Ordonez was coherent and alert.” (Doc. 10-1 at 4.) This conclusion was reasonable. The Court concludes trial counsel did not provide ineffective assistance by failing to pursue a claim that was unlikely to succeed. See Shah v. U.S., 878 F.2d 1156, 1162 (9th Cir. 1989) (“The failure to raise a meritless legal argument does not constitute ineffective assistance of counsel.” (citation omitted)); Miller v. Keeney, 882 F.2d 1428, 1434 (9th Cir. 1989) (explaining that a petitioner cannot show deficient performance or prejudice where counsel declined to raise a claim that was meritless).
2. Failure to Argue Voluntariness to the Jury.
Movant submits counsel “also never presented any evidence on the issue of voluntariness so that the jury could decide how much weight to accord his statements.” (Doc. 34 at 45.) Movant does not explain what evidence should have been admitted, other than Movant's recorded statements, that would have assisted the jury on this point. Movant's expert, Dr. LoVecchio, did not submit an opinion on this point. The jury instructions contained Ninth Circuit Model Criminal Jury Instruction 3.1 regarding statements made by a defendant. (CR Doc. 119 at 14.) Regarding closing argument, Movant's counsel could reasonably decide to draw less attention to Movant's alcoholism and drug use. Time spent on Movant's statements could also diminish the effect of counsel's arguments implicating Mr. Gomez and the government's failure to properly investigate Mr. Gomez as a suspect. Movant fails to demonstrate counsel was ineffective in this regard. See Dunn v. Reeves, 141 S.Ct. 2405, 2410 (2021) (“Defense lawyers have limited time and resources, and so must choose from among countless strategic options.” (citation and quotations omitted); Harrington v. Richter, 562 U.S. 86, 109 (2011) (“There is a ‘strong presumption' that counsel's attention to certain issues to the exclusion of others reflects trial tactics rather than ‘sheer neglect.'”) (citation omitted); Strickland, 466 U.S. at 686 (“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 trial cannot be relied on as having produced a just result.”).
B. Ground Two - Failure to Challenge Search Warrant.
Movant contends his trial counsel “should have challenged the search warrant as [Agent] Daniels got the color of [Movant's] house wrong.” (Doc. 34 at 45.) In the original Motion, Movant argued the search warrant “described [Movant's mother's] car as maroon and her house as tan and brown,” but her “car was gray and her house was a light gray,” and her neighbor had a maroon car and brown house. (Doc. 1-1 at 11.)
The Fourth Amendment requires a search warrant describe with particularity the place to be searched. See U.S. Const. Amend. IV. “The test for determining the validity of a warrant is whether the warrant describes the place to be searched with ‘sufficient particularity to enable law enforcement officers to locate and identify the premises with reasonable effort,' and whether any reasonable probability exists that the officers may mistakenly search another premise.” U.S. v. Mann, 389 F.3d 869, 876 (9th Cir. 2004) (quoting U.S. v. Turner, 770 F.2d 1508, 1510 (9th Cir. 1985)). “The practical accuracy rather than the technical precision governs in determining whether a search warrant adequately describes the premises to be searched.” U.S. v. Williams, 687 F.2d 290, 292 (9th Cir. 1982).
Beyond simply pointing out a technical inaccuracy, Movant makes no argument or showing that the search warrant was constitutionally insufficient. Movant does not dispute the search warrant listed the correct home address. The affidavit in support of the search warrant listed an accurate address, name of the homeowner, and IP address for Movant's computer. (Docs. 1-1 at 11, 10-1 at 194.) There is little doubt about the practical accuracy of the search warrant, and a challenge to the warrant would not likely have been successful. See Mann, 389 F.3d at 876 (upholding validity of a search warrant where the “mistaken reference to “Lower Deer Creek” rather than “Upper Deer Creek” [was] immaterial because, aside from this error, all other information in the warrant regarding the location . . . was accurate.”). Movant's trial counsel was not ineffective for declining to raise a meritless claim. See Shah, 878 F.2d at 1162.
C. Ground Three - Motion to Compel.
Movant argues his trial counsel was ineffective “by failing to support a pretrial motion to compel with sufficient evidence.” (Doc. 34 at 45.)
On December 7, 2018, counsel filed a motion to compel the government to allow a defense expert access to the “Torrential Downpour” software used to obtain the child pornography images on Movant's computer. (CR Doc. 32.) A defendant in an unrelated case, Anthony Gonzales, filed a similar motion. (CR 17-1311-DGC-PHX; Doc. 25.) As summarized by the Court, “Defendants contend that Torrential Downpour may be flawed and should be tested and verified by a third party. They also contend that they need access to the program in order to prepare effective cross examination of Agent Daniels and the presentations by their own computer experts.” (CR Doc. 56 at 4.) The Court held a joint evidentiary hearing on January 31, 2019, where Defendant Gonzales called expert Tammy Loehrs and the government called Agent Daniels. (Id. at 2.) Movant did not call a witness.
Movant asserts that counsel provided ineffective assistance by failing to “recite any specific facts concerning why defense expert Ms. Michele Bush needed access to the law enforcement software.” (Doc. 34 at 45.) Movant argues counsel failed to call an expert witness or properly conduct cross-examination at the evidentiary hearing. (Id. at 45-46.)
The Court denied Movant's motion.
The Court granted Defendant Gonzales's motion in part by allowing the defense expert to examine the Torrential Downpour software at a government facility but not allowing copies of the software to be made. (CR Doc. 56 at 15.)
Defendant Ordonez asserts that it is critical to understand how Torrential Downpour functions “to determine its reliability and accuracy in identifying files reported[ly] involving [his] IP address and whether law enforcement went beyond accessing information that was publicly available.” Doc. 32 at 3. But Ordonez has identified no “specific defense to the charges against him that the Torrential Downpour program could help him develop.” Maurek, 2015 WL 12915605 at *3. Nor has he presented any evidence in support of this materiality argument. Conclusory allegations of materiality are not sufficient to compel disclosure under Rule 16(a)(1)(E)(i). See Budziak, 697 F.3d at 1111-12 (citing Mandel, 914 F.2d at 1219); Santiago, 46 F.3d at 894-95 (the defendant's “assertions, although not implausible, do not
satisfy the requirement of specific facts, beyond allegations, relating to materiality”).
Defendant Ordonez does argue in his motion that his expert needs access to Torrential Downpour to determine its reliability. Doc. 32 at 2. He clarified in his reply brief that an associate with Loehrs's firm, Michele Bush, is his defense expert. Doc. 45 at 4. Bush apparently was retained by Ordonez's former counsel and prepared a report of her examination of Ordonez's computer in July 2018, but the report has not been disclosed to the government and has not been provided to the Court. See Doc. 43 at 2 & n.1. Nor did Defendant Ordonez present an affidavit from Bush to support his motion, or call Bush to testify at the evidentiary hearing. Loehrs testified at the hearing that her firm is no longer working on Defendant Ordonez's case and she has no familiarity with the FBI's investigation in that case. Doc. 50 at 58:3-7. Ordonez's counsel stated that he intends to engage another expert going forward (id. at 169:5-6), and he cross-examined Agent Daniels at the hearing, but he has presented no case-specific expert evidence to support the motion to compel.
Because Defendant Ordonez has failed to make a threshold showing of materiality under Rule 16(a)(1)(E)(1), his case falls within the line of cases that distinguish Budziak and deny discovery of government investigative software.(Id. at 11-12.)
Here, Movant fails to establish that counsel's performance regarding the motion to compel was deficient. Movant's counsel states in his affidavit that “I did not call my own expert as I believed the expert testimony would be harmful to the Motion hearing as the defense report corroborated that CP detected by Torrential Downpour was found on [Movant's] computer.” (Doc. 10-1 at 5.) Movant attached a different April 26, 2022, report from a digital forensic examiner, Joshua Michel. (Doc. 1-2 at 42-51.) Movant's expert report from 2022 does not dispute that child pornography was found on Movant's computer. Counsel could reasonably decide to not call an expert who could corroborate the government's evidence.
On December 7, 2018, Mr. Ber advised the Court he hired Michelle Bush from Loehrs & Associates. (CR Doc. 32 at 2.) The report was not forwarded to the government (CR Doc. 41 at 2, fn. 1) and the Court does not find it in the record.
Assuming arguendo that counsel was deficient regarding the motion, Movant fails to establish prejudice. To show ineffective assistance of counsel, a movant must show how the testimony of the witness would have favorably affected the outcome of the hearing. See Grisby v. Blodgett, 130 F.3d 365, 373 (9th Cir. 1997); Dows v. Wood, 211 F.3d 480, 486 (9th Cir. 2000). Movant has not done so. Movant does not identify the witness who should have been called. Movant does not provide the proposed testimony that would have affected the Court's decision regarding materiality. Movant's mere argument that a witness should have testified is insufficient to establish prejudice. See Grisby, 130 F.3d at 373 (“Speculation about what an expert could have said is not enough to establish prejudice.”). Finally, there is also no argument or showing that, had the motion to compel been granted, access to the Torrential Downpour software would have aided Movant's defense or affected the outcome of the trial. Movant only speculates that access to the software may have shown the software to be unreliable. Movant has presented no evidence or argument demonstrating the software was unreliable. Such unsupported speculation and conclusory allegations are not sufficient to show prejudice. See Jackson v. Calderon, 211 F.3d 1148, 1155 (9th Cir. 2000) (speculation that more investigation would have helped the defendant was insufficient to establish prejudice).
D. Ground Four - Withdrawn.
Counsel withdrew Ground Four in his Amended Motion. (Doc. 34 at 46.) Movant argued his trial counsel's performance was deficient because he did not seek “clarification either verbally or in writing from the district court about the fact that neither the district court's comments nor the order presented any analysis of the Rule 404(b) issues on uncharged conduct and uncharged images or rule on the admissibility of the uncharged counts and number of images of child pornography.” (Doc. 1-3 at 16.) This issue was resolved on direct appeal. See United States v. Ordonez, 831 F. App'x. 293 (9th Cir. 2020) (“The district court did not abuse its discretion under Rule 404(b) of the Federal Rules of Evidence by permitting testimony on uncharged conduct and the number of images of child pornography that Ordonez downloaded. The evidence was relevant to whether Ordonez ‘knowingly' transported or distributed child pornography . . . .”).
Movant's trial counsel filed a motion in limine seeking to exclude from evidence the uncharged pictures and to prohibit mention of the total number of files obtained from Movant's computer, arguing the mention of uncharged files would be unduly prejudicial. (CR Doc. 57.) At the final pretrial conference, trial counsel stated he “would object to mentioning the number of uncharged images” because it was not known how many were certified images or duplicates. (CR Doc. 162 at 14.) The government argued in response that the number of files was relevant to show knowledge and intent in acquiring the child pornography. (Id. at 16.) The Court determined, as stated in the hearing:
My conclusion on this issue of uncharged conduct is that I'm going to accept the government's assertion that it will not seek to display any images. I think that is correct since they're not charged.
In my view, the existence of these other files that were downloaded on the dates in question, as the agent will testify, is relevant to the question of whether the defendant knowingly transported or distributed visual depictions in interstate commerce that he knew contained sexually explicit conduct by minors. All of which need to be proven for the distribution of child pornography charge in Counts 1 through 5 . . . And I do not believe that the relevancy of that evidence is substantially outweighed by the danger of unfair prejudice because the jury isn't going to see these images.(CR Doc. 162 at 14.)
E. Ground Five - Failure to Request Trial Continuance.
Movant argues his trial counsel “should have filed a motion to continue the trial as the government dumped so much discovery the weekend before the first day of trial that it was not humanly possible for him to review it all in time.” (Doc. 34 at 47.) Movant specifies the discovery included “23,000 computer images,” recordings of jail calls between Movant and his mother, criminal history, an interview report, and two “Facebook account search warrants.” (Doc. 1-1 at 22-23; doc 34 at 47.)
On August 26, 2019, the first day of trial, the government advised the Court that it disclosed evidence related to Movant's mother “and another witness named Jaime Altamirano.” (Doc. 153 at 18.) The government stated that if “either of these witnesses would take the stand, we're going to impeach with some supporting facts from the investigation” that suggested they falsified evidence. (Id.) In the Response, the government stated that on “August 15, 2019, the government gave Mr. Ber discovery relating to the investigation about manufactured evidence, and provided proposed Trial Exhibits 79-83 to Mr. Ber the Friday before trial.” (Doc. 10 at 55.) Mr. Ber did not address this issue in his affidavit.
Movant has not shown his counsel was ineffective for declining to request a continuance. The record does not support Movant's assertion trial counsel did not have time to review the documents. The trial transcript reflects the government went over possible exhibits with Movant's trial counsel a few days before trial, and those exhibits dealt entirely with impeachment evidence for two defense witnesses - who trial counsel then decided not to call to testify. (CR Doc. 153 at 18-19.) Trial counsel noted, “I did receive that additional discovery regarding my witnesses. I looked it over . . . I understand they may want to use it for impeachment. I don't know at this point whether I'm going to call those particular witnesses.” (CR Doc. 153 at 19.) The trial transcript suggests trial counsel did have time to assess the documents. Trial counsel did not complain that he had insufficient time to review the materials. Movant's argument relies solely on speculation that his trial counsel did not have time to review the discovery. As such, Movant cannot show his trial counsel's performance was deficient or that he suffered prejudice by his trial counsel's decision not to request a continuance. See Jackson, 211 F.3d at 1155 (stating conclusory or unsupported allegations cannot support a claim for ineffective assistance of counsel).
F. Ground Six - Failure to Investigate Alibi Defense.
Movant argues his trial counsel failed to investigate and sufficiently present an alibi defense at trial.
1. Failure to Investigate Jacob Gomez.
Movant first contends Jacob Gomez, Movant's Mother's boyfriend, was the person responsible for downloading the child pornography images onto Movant's computer. (Doc. 34 at 48.) Movant argues he and his mother (Ms. Villareal) “told Ber about all of Gomez's red flags strongly indicating that he was sexually attracted to prepubescent girls, the child porn found on Aaron's desktop computer, yet he chose to dismiss it all and never investigated any further.” (Doc. 34 at 48.)
Defense counsel has a “duty to make reasonable investigations or to make a reasonable decision that makes particular investigations unnecessary.” Strickland, 466 U.S. at 691. To succeed on an ineffective assistance of counsel claim based on a duty to investigate, a defendant must state “what additional information would be gained by the discovery he now claims was necessary.” Eggleston v. United States, 798 F.2d 374, 376 (9th Cir. 1986). “Moreover, ineffective assistance claims based on a duty to investigate must be considered in light of the strength of the government's case.” Id.
Here, Movant fails to demonstrate what additional information would have been obtained if counsel had conducted more investigation. Movant's counsel states that he spoke with Ms. Villareal “several times during the course of my representation” and he describes the information she presented to him. (Doc. 10-1 at 3.) Counsel states he “followed up with family members but they did not confirm that Mr. Gomez did anything other than act weird during a time he visited them.” (Id.) He states he spoke with Mr. Gomez twice but he “did not admit anything or provide me with information helpful for the defense.” (Id.)
Movant does not identify what additional investigation trial counsel should have undertaken, or provide the specific information that Mr. Ber would have obtained if he had investigated further. This unsupported argument therefore cannot support a claim for ineffective assistance of counsel. See James, 24 F.3d at 26 (“Conclusory allegations which are not supported by a statement of specific facts do not warrant habeas relief.”).
2. Failure to Obtain Cell Phone Records.
Movant argues counsel failed to investigate Gomez's cell phone records. (Doc. 34 at 48.) This claim is raised and addressed in Ground Seven.
3. Failure to Present Evidence of Gomez Access to Computer.
Movant argues he and Ms. Villareal “told Ber that Gomez knew Aaron's computer password, that Aaron's desktop computer was in an open area of Renee's basement, and that Aaron had caught Gomez twice on his desktop computer yet Ber just dismissed it and never provided any of that evidence to the jury.” (Doc. 34 at 48.) Movant filed an affidavit that states Movant told trial counsel the computer was kept in a common area where Gomez did laundry, Gomez knew Movant's computer password, and Movant had witnessed Gomez using the computer on occasion. (Doc. 1-2 at 25.)
Movant fails to establish Mr. Ber provided ineffective assistance regarding Mr. Gomez's alleged knowledge of the computer password. Movant asserts in his affidavit that he told Mr. Gomez the computer password and saw him using the computer, but Movant declined to testify at trial. Movant presents no other way this evidence could have been introduced at trial. Movant argues his computer “was in an open area” of the basement, but a picture of the basement was introduced at trial. (CR Doc. 154 at 39.) Movant's counsel asked Agent Daniels about Mr. Gomez's access to the basement, but Mr. Gomez told the agent he “tried to give Aaron his space down the stairs.” (CR Doc. 151 at 75.) During closing argument, Mr. Ber argued there “was no door” on the computer room and that “his computer was exposed.” (CR Doc. 155 at 160.) Movant fails to demonstrate there was additional, persuasive evidence on these topics that was not investigated and produced.
4. Gomez's Mother and Brother Had Access to the Home.
Movant argues Ms. Villareal informed counsel “Gomez's mother Christine and brother Ricardo also had keys to her home and could have downloaded all the child porn.” (Doc. 34 at 48.) Movant's counsel could have reasonably concluded that suggesting a roommate's mother or brother entered the home on at least five separate occasions (Counts 1-5) to download and watch child pornography would be viewed as a desperate argument. Movant also fails to establish prejudice because he fails to show it was reasonably probable that the outcome of his trial would have been different had counsel pursued this theory. See Woods v. Sinclair, 764 F.3d 1109, 1133 (9th Cir. 2014) (finding no ineffective assistance of counsel when a reasonable choice is made to pursue one avenue of defense over another).
As described in Ground Six, the user who was downloading child pornography files was also browsing the internet, watching video games, and accessing a social media site connected to Movant's email and cellphone.
5. Other Alibi Witnesses.
Movant argues he and Ms. Villareal “gave Ber the contact info and context for all of Aaron's alibi witnesses yet Ber lied and made excuses about why he couldn't use them.” (Doc. 34 at 48.) Mr. Ber states that he investigated these witnesses:
Mr. Ordonez and mother provided several names of possible alibi witnesses who may have knowledge that they were with Mr. Ordonez when the alleged downloads occurred. Reviewing my notes, I see I contacted and spoke to all the witnesses including following up with all the witnesses provided to me. My notes indicate I made approximately 30 calls during the course of my investigation. After discussing dates with the potential witnesses, only three of the witnesses could provide testimony for the alibi defense, two of whom appeared at trial.(Doc. 10-1 at 4.)
Movant fails to explain which alibi witnesses should have testified, what they would have stated, and how he was prejudiced. Movant is not entitled to relief on this claim.
6. Failure to Argue Alibi Defense.
Movant argues that from the opening statement (doc. 34 at 48) to closing argument, counsel abandoned an alibi defense “and never presented any evidence showing that Gomez was the person who downloaded all the child porn.” (Id. at 49.) At trial, counsel argued in his opening statement that Movant was not the person to download the child pornography, pointing out there was no child pornography on Movant's computer until he moved into his mother's residence where Gomez also lived. (CR Doc. 153 at 173.) Counsel argued “Jason Gomez had access to this computer, that the government knew about this person who lived there, and didn't really follow up with this person at all.” (Id.) Trial counsel cross-examined the government's witnesses about the lack of investigation into the other residents of the home, including Gomez. (CR Docs. 154 at 27-28; 155 at 74-85.)
Counsel called two defense witnesses in support of the alibi defense. Movant's counsel presented a friend of Movant's (Tina Berdugo) who stated she was with him on December 2, 2017, the date corresponding to Count One of the Indictment. (CR Doc 155 at 97-101.) The witness testified she and Movant went to the mall that day and spent the day together until 1:45 A.M. the following day. (CR Doc. 155 at 97-101.) Trial counsel also called Movant's hair stylist (Dande Goodman), who testified she had cut Movant's hair on December 6, 2017, the date corresponding to Count Two. (CR Doc.155 at 91-93.) She testified Movant arrived at her home for the haircut at 5:15 P.M. and left shortly after 6:00 P.M. (CR Doc. 155 at 91-93.) On cross-examination, the witness acknowledged she previously stated the haircut happened between 4:00 and 4:30 P.M. (CR Doc. 15 at 96.)
In his Reply, Movant argues that counsel should have asked more questions of witness Goodman to explain her “credibility” problem. (Doc. 16 at 7.) He suggests counsel could have prepared the witness to “ameliorate” the problem. (Id. at 8.) But on cross-examination and redirect examination, the witness testified she had a clear memory and calendar that showed the haircut happened from 5:15 to 6:00 P.M. (CR Doc. 155 at 92-96.)
Trial counsel did not discuss the alibi witness testimony in his closing argument. (CR Doc. 155 at 151-161.) Counsel stated in his affidavit that he believed addressing the alibi witness testimony in closing argument would undermine his other arguments.
During closing argument, I believed I covered the issue that the government failed to investigate [the] mother's boyfriend or interview him until a month and [a] half later, that there were no doors on his bedroom and on the way to laundry, that the computer was exposed, that the computer was built years before moving but only had child porn downloaded after moving in with Mr. Gomez. I covered the issue of the computer operator not intending to “distribute” the materials.
However, the alibi witnesses proved problematic as they lacked credibility. The government cross-examined one witness[] who looked to be covering up her considerable weekly contact with Mr. Ordonez's mother. I was concerned that the government would undermine the defense's case by pointing out the credibility issues on their rebuttal closing. Given the sensitivity of the charges, I decided based on my experience to not discuss the alibi witnesses in closing to avoid the government undermining the defense credibility in their rebuttal closing argument just before the jury went to deliberate. My concern was that given the nature of the charges, the jury would close their minds to the other credible evidence if they believed defense was presenting evidence that lacked credibility.(CR Doc. 162 at 14.)
Here, counsel's tactical decision regarding his closing argument is not necessarily deficient representation. On the one hand, counsel had seemingly little to lose by referencing the two alibi witnesses and reminding the jurors to consult their memories regarding their potentially exculpatory testimony. On the other hand, counsel's decision to emphasize an allegedly poor investigation, Mr. Gomez's access to the computer, and a lack of other evidence was not unreasonable. Movant is not entitled to relief on this claim.
G. Ground Seven - Failure to Obtain Cell Phone Records.
Movant also contends trial counsel's representation fell below objective standards because counsel failed to obtain cellphone records for Movant and Mr. Gomez that would have shown Movant was not home during the times alleged in the indictment. (Doc. 34 at 50-52.) Movant asserts that “[d]espite knowing that the cell phone records probably would show Aaron wasn't home and that Gomez was during the dates and times alleged in the indictment, Ber never obtained” Gomez's cell phone records. (Id. at 51.) Movant counsel's affidavit states he did not obtain the phone records because he did not think the records were exculpatory and would have posed a risk of showing that Gomez, the person Movant alleges downloaded the child pornography on Movant's computer, was not at home on any of the relevant days. (Doc. 10-1 at 4.)
Movant has not presented argument or evidence to refute that the decision was the result of professional judgment and trial strategy. See Visciotti v. Martel, 862 F.3d 749, 769 (9th Cir. 2016) (“the defendant must overcome the presumption that, under the circumstances, the challenged action might be considered sound trial strategy.”). Movant did not obtain the cellphone records or present any other evidence as to what the cellphone records would show. Movant did not even specifically allege that he was not at home during all the dates alleged in the indictment or point to any evidence suggesting that Gomez was at home during those times. (See Docs. 1-1, 1-3.) Movant only speculates as to what the phone records may have shown. (Doc. 1-3 at 8-11.) Movant therefore has not overcome the presumption that trial counsel reasonably decided not to present the records and Movant has not shown he was prejudiced by the decision not to obtain the records. See Jackson, 211 F.3d at 1155 (holding unsupported speculation and conclusory allegations regarding an attorney's substandard performance is not sufficient to show prejudice); see also, e.g., Jackson v. U.S., 2012 WL 2953058 *6 (E.D. Cal. July 19, 2012) (rejecting claim that counsel was ineffective for failure to obtain phone records, reasoning at most the records would show a phone registered to the petitioner was used in another location and would not refute the otherwise overwhelming evidence of guilt).
In the Petition, Movant argues that the cell phone records “would have location data showing that Gomez was home and [Movant] was away during the dates and times alleged in the Indictment . . . .” (Doc. 1-1 at 6.) Again, Movant provides no evidence of this fact.
Movant cites to State v. Nicks, 831 N.W.2d 493 (Minn. 2013) in support of his claim and a request for an evidentiary hearing. In Nicks, defendant's cellphone records showed defendant placed two calls to the victim immediately prior to her murder. Id. at 500. The prosecution argued defendant called and threatened the victim, which supported a theory of premeditation. Defendant's counsel failed to have the victim's phone forensically examined and failed to obtain phone records. Id. at 501. A post-sentencing examination of the victim's phone showed no call was received from defendant's phone. Id. at 502. The court in Nicks found the failure to examine the phone or obtain records was a critical lapse by counsel and reversed the trial court's decision to deny relief without a hearing. Id. at 511-12. But unlike Nicks, Movant does not have evidence to support his claim that phone records would have assisted Movant.
H. Ground Eight - Failure to Call Movant at Trial.
1. Failure to Call Movant as a Trial Witness.
Movant contends trial counsel provided ineffective assistance by failing to call Movant to testify at trial. (Doc. 1-3 at 7-8; doc. 34 at 52.) Movant asserts:
Aaron would have testified to the following: his huffing addiction made it difficult to be on the computer and led him to be away from home during the dates and times alleged in the indictment; he was impaired by alcohol and huffing when he was interrogated by Daniels; he caught Gomez twice on his desktop computer; his computer was in an open area of Renee's basement; Gomez knew his computer password; he was always automatically logged in to Google Hangouts; and the card attached to his PayPal account had been inactive since 2015.(Doc. 34 at 52.)
Mr. Ber's affidavit states that “[d]ue to (a defense forensic evaluation) report and statements made by [Movant], I believed it would be harmful to his case to potentially present Mr. Ordonez as a witness. [Movant] expressed agreement with that.” (Doc. 10-1 at 2.)
Movant bears the burden of proving that counsel's trial strategy was deficient. “[T]he defendant must overcome the presumption that, under the circumstances, the challenged action ‘might be considered sound trial strategy.'” Strickland, 466 U.S. at 689.
Assuming arguendo that Movant would have testified as stated, counsel made a reasonable decision to not call Movant as a witness. Certainly, Movant's testimony that he was often away from his computer, caught Gomez on the computer, that Gomez knew his password, he was automatically logged into Google hangouts, and information about his PayPal account may have been helpful. But Movant would have also been subject to potentially withering cross-examination. If Movant testified that he “was impaired by alcohol and huffing when he was interrogated by Daniels,” the government could have replayed portions of his taped interview during cross-examination. A reasonable juror could have concluded Movant was sober and not truthful during trial. The government would have impeached Movant with his admission in his interrogation that he downloaded and viewed child pornography. (Doc. 10-1 at 23-42; CR Doc. 154 at 16-19.) Movant would have been asked numerous questions about his use of the computer, his child pornography search terms, and the volume of his child pornography downloads. He would have been asked about the voluntary nature of his interview and confession to law enforcement. In his affidavit, Movant does not assert that he lied to the agent about downloading child pornography. Movant would have been questioned on how he could differentiate between his child pornography downloads and those of Mr. Gomez. The decision to not call Movant as a witness was within an objective standard of reasonableness. Therefore, Movant has not shown his counsel was ineffective by deciding not to call Movant as a witness at trial. See Pray v. Farwell, 620 F. App'x. 561, 564 (9th Cir. 2015) (stating trial counsel's decision against presenting defendant as a witness was a sound trial strategy given defendant's own admissions).
In his Reply, Movant argues that he would have testified he “drank a whole bottle of vodka” prior to the discussion with Agent Daniels and that he was so intoxicated that “he could barely walk.” (Doc. 16 at 15.) In his affidavit, Movant states he was “under the influence of alcohol and DustOff.” (Doc. 1-2 at 28.) The transcripts of the interview do not reflect Movant was substantially impaired during the questioning. (Doc. 10-1 at 10-99.) Even if he was intoxicated, Movant provided very specific answers to the types of child pornography sites he visited (doc. 10-1 at 50-52), the type of searches he conducted (e.g., “13YO” and “father, daughter” (doc. 10-1 at 47, 51)), and that he was sexually aroused by his downloads (doc. 10-1 at 54).
2. Interference with Movant's Request to Testify.
Movant also argues trial counsel provided ineffective assistance by interfering with Movant's request to testify. Movant asserts that “Ber never called him to testify at trial despite Aaron informing him that he wanted to do so.” (Doc. 34 at 52.) Movant submitted an affidavit asserting that “I told Ber that I wanted to testify and he said that it was a last resort and denied me even when I insisted.” (Doc. 1-2 at 30.) As noted above, Mr. Ber's affidavit asserts that Movant agreed with counsel that Movant should not testify at trial. (Doc. 10-1 at 2.)
A criminal defendant has a constitutional right to testify on his own behalf. Rock v. Arkansas, 483 U.S. 44, 51-53 (1987). “Although the ultimate decision whether to testify rests with the defendant, he is presumed to assent to his attorney's tactical decision not to have him testify.” U.S. v. Joelson, 7 F.3d 174, 177 (9th Cir. 1993). The trial court has no duty to advise the defendant of his right to testify, nor is the court required to ensure that an on-the-record waiver has occurred. U.S. v. Edwards, 897 F.2d 445, 446-47 (9th Cir. 1990) (quotations and citations omitted). If a “defendant wants to testify, he can reject his attorney's tactical decision by insisting on testifying, speaking to the court, or discharging his lawyer.” Joelson, 7 F.3d 177. The “waiver of the right to testify may be inferred from the defendant's conduct and is presumed from the defendant's failure to testify or notify the court of his desire to do so.” (Id.)
Here, Movant did not insist on testifying, advise the court, or discharge his lawyer. Instead, Movant remained silent when his attorney rested without calling him as a witness. (CR Doc. 155 at 103.) Movant waived his right to testify. “When a defendant remains ‘silent in the face of his attorney's decision not to call him as a witness,' he waives the right to testify.” U.S. v. Pino-Noriega, 189 F.3d 1089, 1095 (9th Cir. 1999) (citing U.S. v. Nohara, 3 F.3d 1239, 1244 (9th Cir. 1993)).
I. Ground Nine - Failure to Call Movant's Mother to Testify.
Petitioner asserts that counsel provided ineffective assistance by failing to call Movant's mother, Renee Villareal, to testify at trial in support of his alibi defense. (Doc. 34 at 52.) Movant asserts:
Renee was ready and willing to testify that Gomez had strong red flags showing a sexual attraction to prepubescent girls, his guilty behavior during and after Aaron's arrest, his knowledge of Aaron's computer password, and his access to Aaron's desktop computer that was in an open area of her basement yet Ber ignored her and her evidence.(Doc. 34 at 52.)
Mr. Ber's affidavit states:
I intended to call Ms. Villareal as a witness to all her observations and knowledge of Mr. Gomez' suspicious behavior but later on in the case, the government gave the court and counsel notice that they had collected information on numerous phone calls and/or text messages alleging that it showed her involvement in scheming to produce false evidence. I discussed the issue with Ms. Villareal and I heard about some of her involvement and behavior. I believed that calling Ms. Villareal at that point would have been detrimental to the defense and recommended that Ms. Villareal consult with an attorney. Ms. Villareal agreed. My concern was that on cross-examination not only would Ms. Villareal's testimony not be credible, it would look as if Ms. Villareal and/or the defense was attempting to frame Jacob Gomez. Given the nature of the charges, I believed that would have had a damaging effect on the jury's openness to its other defense arguments.(Doc. 10-1 at 3.)
Movant fails to establish trial counsel acted unreasonably given the weight of impeachment evidence available that may have undermined Movant's mother's credibility. As Movant acknowledges, before trial the prosecution prepared several exhibits suggesting Movant's mother falsified evidence in support of Movant's alibi defense. (CR Doc. 153 at 18-19.) As a result, trial counsel decided against calling Movant's mother as a witness. (Id.) The government may also have impeached Movant's mother with her own prior statement in an interview that “nobody [else] touches [Movant's] computer.” (Doc. 10-1 at 122-23.) Movant now theorizes, without further explanation, trial counsel could have filed a motion in limine that would have permitted his mother to testify without exposure to any impeachment evidence. Movant does not explain why the trial court would have granted such a motion and trial counsel is not constitutionally ineffective for not filing a motion with only a conceivable possibility of success. See Shah, 878 F.2d at 1162.
Movant attached an affidavit from Ms. Villareal that contains numerous assertions regarding Mr. Gomez. Ms. Villareal asserts Mr. Gomez had prior misdemeanor convictions, inappropriately texted naked photos to other women, had access to Movant's “Hulu and Netflix password which was the same for [Movant's] computer,” and that Mr. Gomez acted oddly around young children. (Doc. 1-2 at 2-10.)
J. Ground Ten - Failure to Call Other Alibi Witnesses.
Movant argues trial counsel should have called unspecified additional witnesses, including “defense witnesses who could testify that Gomez was home during the dates and times alleged in the indictment.” (Doc. 1-3 at 5; Doc. 34 at 53.) Trial counsel filed an affidavit stating he interviewed Movant's identified alibi witnesses, and of the list, three could testify and only two were available to testify at trial. (Doc. 10-1 at 4-5.) To support a claim for ineffective assistance of counsel, a movant must identify what witnesses should have been called and show how the witnesses' testimony would have favorably affected the outcome of the trial. See Grisby, 130 F.3d at 373; Dows, 211 F.3d at 486 (holding petitioner failed to show prejudice because there was no evidence, beyond his own affidavit, of the existence of the would-be witnesses or of what their testimony would have been). Movant has not done so.
Movant cites Alcala v. Woodford, 334 F.3d 862 (9th Circ. 2003) and Luna v. Cambra, 306 F.3d 954 (9th Cir. 2002) in support of his argument. In those cases, however, the petitioner claiming ineffective assistance of counsel identified the names of alibi witnesses who would have provided helpful testimony and the exculpatory records that should have been introduced into evidence. In Alcala, 334 F.3d at 870, the court found counsel was ineffective for not presenting a witness who could have testified that she, a farm employee, led petitioner on a “farm tour” on the day of the murder, and for not introducing the supporting business records showing petitioner's attendance. Similarly, in Luna, 306 F.3d at 954, the court found trial counsel was ineffective for failing to subpoena two named alibi witnesses and one exonerating witness, who were each willing and able to testify. Although Movant alluded to additional witnesses who could testify that Gomez was at home during the relevant times, he did not list the identity of those witnesses, state the witnesses were able or willing to testify, or explain how that testimony could have helped considering the government's evidence against Movant. Movant has not shown trial counsel was ineffective for failing to call additional witnesses.
K. Ground Eleven - Cross-Examination of Agent Daniels.
Movant contends trial counsel's cross-examination of witness Agent Daniels amounted to ineffective assistance of counsel. (Doc. 1-3 at 11-12; doc. 34 at 53-54.)
Movant first argues counsel should have questioned Agent Daniels about the password protection on Movant's computer. Movant's affidavit asserts he told Mr. Ber the “computer was password-protected.” (Doc. 1-2 at 26.) Counsel may have reasonably decided that testimony the computer was password-protected would hurt Movant's case for the obvious reason that it would have made it more difficult for other individuals to use Movant's computer. Movant suggests counsel should have asked about Movant's interrogation, but that questioning could have allowed Agent Daniels more opportunity to refute any claim regarding Movant's alleged intoxication. Similarly, counsel's decision not to question about the search warrant, the strength of the circumstantial evidence, the timing of Gomez's interview, and the location of the computer were not unreasonable because the answers could have helped the prosecution.
Movant asserts trial counsel should have questioned Agent Daniels about the reliability of Torrential Downpour software. He argues counsel “never asked Daniels any cross-examination questions about Torrential Downpour's validity, reliability, identified bugs, fixed bugs, change log showing software fixes,” or other topics related to Torrential Downpour. (Doc. 34 at 54.) In his Reply, Movant reasserts that a digital forensics expert should have assisted counsel in the cross-examination of Agent Daniels. (Doc. 16 at 1823.)
Mr. Ber's affidavit states:
I recall discussing Torrential Downpour with Mr. Ordonez and his brother. I took calls from Mr. Ordonez'[s] mother and brother who would call me with ideas and information. I would listen to anything they wanted to tell me. I reviewed Mr. Ordonez'[s] expert report and discussed the report with our expert on a few occasions during the case. I researched Torrential Downpour and discussed Torrential Downpour with Mr. Ordonez' [s] expert. I also went down to FBI headquarters in Phoenix and met with [al Special Agent who discussed with me the software Torrential Downpour and viewed the charged pictures.(Doc. 10-1 at 4.)
Movant attached a report from Senior Forensic Examiner Joshua Michel of Roloff Digital Forensics, LLC. (Doc. 1-2 at 42.) Mr. Michel reviewed the transcript of Agent Daniels' testimony. Mr. Michel submits several areas of potential cross-examination that could have been introduced during cross-examination, to include that the program was not peer-reviewed (id. at 44), better “context” as to other downloads might show a second user (id. at 45), the agent did not have “an open mind” (id. at 47), and a lack of connecting “user credentials” with the “timeline analysis” (id. at 48). Mr. Michel ultimately concludes there was “ample data” that the downstairs computer accessed “the BitTorrent network to download child exploitation materials.” (Id. at 50.) He notes the “defense cross examination was able to highlight some helpful points such as, the short duration in which this investigated activity occurred, that all items were in the recycle bin of the computer, and that the recycle bin is not a shared location.” (Id.) But, he notes “[i]t also could have benefitted from further pressing the agent on how sure he could be that the user is Mr. Ordonez when there appeared to be a lack of confidence in the testimony related to the true meaning of the artifacts attempted to be tied to Mr. Ordonez.” (Id.) Mr. Michel does not assert that the Torrential Downpour program used in this investigation resulted in forensic unreliability.
Here, Movant fails to demonstrate counsel's cross-examination was both deficient and prejudicial. Movant does not establish that Agent Daniels would have conceded Torrential Downpour was unreliable. Movant's expert does not assert the program was unreliable in this case. Instead, additional questioning may have bolstered the perceived reliability of the software. Assuming arguendo that a more robust cross-examination could have shown the Torrential Downpour software to be unreliable, such information would not have been directly relevant to Movant's defense. Movant does not dispute -- in his Motion or affidavit -- that the child pornography for Counts 1-5 was downloaded on his computer. Therefore, the hypothetical unreliability of the law enforcement software that gained access to the downloads is not consequential. Because this proposed line of questioning was not directly relevant to his defense, Movant has not shown trial counsel acted unreasonably in declining to pursue it as vigorously as Movant alleges, or that he was prejudiced by its absence. See Shah, 878 F.2d at 1162.
During his interview with Agent Daniels, Movant admitted he used “Dragonninja,” “PirateBay,” “Crunchyroll,” and “Russian” sites to download torrent files. (Doc. 10-1 at 49-52.)
Movant also argues trial counsel's cross-examination was inadequate because counsel did not question Agent Daniels about the lack of direct evidence establishing Movant as the user who downloaded the child pornography and about Gomez's access to the computer. “Under Strickland, counsel's representation must be only objectively reasonable, not flawless or to the highest degree of skill.” Dows, 211 F.3d at 487 (citing Strickland, 466 U.S. at 688-89). In addition, trial counsel's “tactical decisions at trial, such as refraining from cross-examining a particular witness or from asking a particular line of questions, are given great deference.” Id.
Here, counsel could have questioned Agent Daniels more thoroughly that there was no direct evidence Movant was the individual who downloaded the child pornography in Counts 1-5. The government, on re-direct, could then have revisited Movant's statements and the substantial circumstantial evidence present in the case. It would not be unreasonable for trial counsel to avoid giving the government an opportunity to emphasize to the jury that Movant stated no one else in the home used his computer (doc. 10-1 at 25) or revisit his damaging admissions. Ultimately, no amount of direct or cross-examination would have changed the question before the jury: who downloaded the files for Counts 1 5? Even if Movant's counsel should have asked more questions on this topic, Movant fails to show he was prejudiced. Movant has thus not shown deficient performance or prejudice based on trial counsel's cross-examination of Agent Daniels.
L. Ground Twelve - Linking Forensic Reports with Alibi Testimony.
Movant also alleges his counsel “never linked the IEF Timeline reports with the witnesses' testimony so the jury had no clue that the IEF Timeline reports corroborated the witnesses' testimony that Aaron was with them and not downloading child porn during some of the dates and times alleged in the indictment.” (Doc. 34 at 54-55; doc. 1-3 at 5.) Movant's counsel presented two alibi witnesses to testify about Movant's location during the times alleged in Counts One and Two. Movant does not explain why the jury would not have connected the alibi defense with the times charged in the indictment.
Internet Evidence Finder. (CR Doc. 151 at 63.) A “Timeline” report “will basically take all of the dates and time of an activity on the computer and put it in a nice user-friendly graphical form.” (CR Doc. 154 at 87.) Timeline reports were admitted into evidence. (id. at 63, 68; CR Doc. 154 at 97, 112, 130.)
M. Ground Thirteen - Failure to Request Mistrial.
Movant contends trial counsel was ineffective because he did not file a motion for a mistrial after Movant “was harassed by a U.S. deputy marshal about Siberian Mouse, a known collection of internet child pornography.” (Doc. 1-1 at 38-47; Doc. 34 at 55.) Movant does not identify a basis for which a mistrial should have been sought or granted.On the third day of trial, the government alerted the Court that a Deputy U.S. Marshal asked Movant questions, outside the presence of the jury, about child pornography terms used in the trial. (CR. Doc 155 at 5-6.) The government advised the Court of the following:
Movant also argues counsel failed to request a mistrial regarding a juror's request to be excused based on “discomfort.” (Doc. 34 at 55.) This claim is addressed in Ground Eighteen.
We were made aware this morning by a supervisory deputy U.S. marshal who is here in the courtroom with us. Apparently there was an incident yesterday when the defendant had been taken into the holding area where one of the deputy marshals who was here in the courtroom yesterday was attempting to make small talk with the defendant and had asked him aoout a couple of terms that were used in the trial. The
defendant made no response, did not say anything. The deputy marshal then continued to try to make small talk and asked him a couple questions about the Navy. Defendant again made no statements or comments to that deputy U.S. marshal.
When the defendant finally got downstairs, he had indicated to somebody within the U.S. Marshal's Office he intended to file some sort of grievance or complaint.(Id. at 5.)
The Court asked how the parties wished to proceed. (Id. at 6.) Movant's counsel requested the deputy marshal not have contact with Movant. (Id.) The deputy marshal was reassigned. (Id.) Movant's counsel did not request a mistrial.
“Courts may dismiss an indictment under their inherent supervisory powers (1) to implement a remedy for the violation of a recognized statutory or constitutional right; (2) to preserve judicial integrity by ensuring that a conviction rests on appropriate considerations validly before a jury; and (3) to deter future illegal conduct.” U.S. v. Struckman, 611 F.3d 560, 574 (9th Cir. 2010) (cleaned up). A “defendant must demonstrate prejudice before the court may exercise its supervisory powers to dismiss an indictment.” (Id. at 575.)
Here, Movant has not demonstrated Movant's contact with the deputy had any effect on the jury or the outcome of the trial. Put simply, Movant has not demonstrated any prejudice to justify a mistrial. There is no reasonable probability the trial court would have granted a mistrial even if it was requested, so counsel's decision not to request a mistrial was thus well within the range of competent assistance. See Lowry v. Lewis, 21 F.3d 344, 346 (9th Cir. 1994) (counsel is not obligated to raise frivolous motions, and failure to do so cannot constitute ineffective assistance of counsel).
N. Ground Fourteen - Failure to Move for Judgment of Acquittal.
Movant submits counsel was ineffective for failing to move for a judgment of acquittal pursuant to Rule 29(a) of the Federal Rules of Criminal Procedure. (Doc. 34 at 55.) Other than this cursory allegation, counsel does not argue why Movant was prejudiced by counsel's failure to make the motion. (See Doc. 1-1 at 47; doc. 103 at 17.) Counsel agreed he did not move for an acquittal. (Doc. 10-1 at 7.) Counsel stated in his affidavit that “[a]lthough I would not have thought a motion for a Judgment of Acquittal would be successful, I normally moved for one at the close of the government's case.” (Id.)
“Generally, a defendant claiming ineffective assistance of counsel for failure to file a particular motion must not only demonstrate a likelihood of prevailing on the motion, but also a reasonable probability that the granting of the motion would have resulted in a more favorable outcome in the entire case.” Styers v. Schriro, 547 F.3d 1026, 1030 (9th Cir. 2008) (citation omitted).
Movant presents no argument that a motion for a judgment of acquittal had any reasonable chance at success given the evidence of guilt. Movant does not contest there was sufficient evidence to sustain each conviction. Movant's inculpatory statements and corroboration that evidence was found on his computer was sufficient to sustain the convictions. See U.S. v. Phillips, 569 F. App'x. 542, 543 (9th Cir. 2014) (finding defendant's confession and corroborating evidence sufficient to sustain guilt). Movant therefore cannot demonstrate he was prejudiced by counsel's failure to move for an acquittal. See U.S. v. Evans, 978 F.2d 1112, 1114-15 (9th Cir. 1992) (concluding “there can be no ineffective assistance of counsel based on defense counsel's failure to move for judgment of acquittal” because the “evidence was sufficient to convict [defendant].”); U.S. v. Greer, 440 F.3d 1267, 1272 (11th Cir. 2006) (denying the defendant's claim that his counsel was ineffective for failing to move for a judgment of acquittal because “the evidence the government presented during its case was sufficient to convict”).
O. Ground Fifteen - Failure to Review Presentence Report.
Movant alleges trial counsel “didn't discuss [Movant's] presentence report with him.” (Doc. 1-3 at 18; doc. 34 at 55.)
A trial court “[m]ust verify that the defendant and the defendant's attorney have read and discussed the presentence report and any addendum to the report.” Fed. R. Crim. P. 32(i)(1)(A); see U.S. v. Lewis, 880 F.2d 243, 245-46 (9th Cir. 1989) (“The requirements of [Rule 32(i)(1)(A)] were fulfilled when Lewis's attorney told the sentencing judge that appellant had read the presentence report and Lewis failed to dispute this assertion when personally addressed . . . .”).
At sentencing, trial counsel informed the court he had reviewed the presentence report with Movant and Movant did not disagree. (CR. Doc. 156 at 3.) The record therefore does not support Movant's assertion that trial counsel did not discuss the presentence report with him. Movant also has not shown he was prejudiced. He does not assert the presentence report was inaccurate or argue that a discussion of the report before sentencing would have affected his sentence. See U.S. v. Davila-Escovedo, 36 F.3d 840, 844 (9th Cir. 1994) (finding no prejudice in the trial court's failure to verify whether trial counsel and the defendant discussed the presentence report where the defendant “has not only raised no claim of prejudice, but he has also made no affirmative allegation that he failed to read the report.”). Accordingly, Movant has not shown trial counsel was ineffective on this basis.
P. Ground Sixteen - Failure to Obtain Character Letters.
Movant alleges trial counsel “did such a poor job in obtaining [Movant's] character letters that [family members] resorted to sending them directly to the Court to make sure it had them for [Movant's] sentencing.” (Doc. 1-3 at 18; doc. 34 at 55.) The record shows that 15 character letters were filed with the Court prior to sentencing. (CR Doc. 156 at 16, 33.) Movant has not identified a character reference who was willing and able to send a letter who did not send one. Even if trial counsel failed to file the letters personally, Movant has not shown prejudice on this basis.
Q. Ground Seventeen -- Cumulative error.
Finally, Movant argues trial counsel's actions amount to cumulative error warranting reversal. (Doc. 1-3 at 18-22.) “In some cases, although no single trial error examined in isolation is sufficiently prejudicial to warrant reversal, the cumulative effect of multiple errors may still prejudice a defendant.” U.S. v. Frederick, 78 F.3d 1370, 1381 (9th Cir. 1996) (citing U.S. v. Green, 648 F.2d 587 (9th Cir. 1981)). “[T]he combined effect of multiple trial errors may give rise to a due process violation if it renders a trial fundamentally unfair, even where each error considered individually would not require reversal.” Parle v. Runnels, 505 F.3d 922, 928 (9th Cir. 2007) (citing Chambers v. Miss., 410 U.S. 284, 298 (1973)). Where the government's case is weak, a defendant is more likely to be prejudiced by the effect of cumulative errors. U.S. v. Berry, 627 F.2d 193, 201 (9th Cir.1980) (“The government's case against Berry rested on the virtually uncorroborated testimony . . . .”).
Movant has also not shown the cumulative effect of the suggested errors rendered the trial “fundamentally unfair.” Parle, 505 F.3d at 928. The fact stands that the government presented forensic reports showing a user downloaded child pornography on Movant's computer and during the downloads, or minutes after, accessed Movant's personal files, video games and social media accounts. (CR. Doc. 154.) Movant admitted to downloading child pornography just a year or two prior to the date of his interrogation. (Doc. 10-1 at 23-42; CR Doc. 154 at 16-19.) He also told law enforcement that no one else in the home used his computer. (Doc. 10-1 at 25.) The government presented compelling evidence of guilt. See Berry, 627 F.2d at 201. Movant has not shown that had his counsel presented his alibi defense in the way Movant suggests, that the jury would have reached a different result. Notably, Movant has not cited any evidence, other than speculation about what phone records or additional witnesses may have provided, that would have shown another person was responsible for downloading the child pornography onto Movant's computer. Accordingly, Movant has not shown he was prejudiced by cumulative error.
V. Ground Eighteen - Failing to Argue Juror 7 Disqualification.
A. Law.
Movant asserts that appellate counsel rendered deficient performance by omitting a meritorious issue on appeal. Movant submits the “contention that the trial judge should have excused Juror 7, or at least inquired further into the nature of the discomfort he was experiencing, gives rise to a reasonable probability that the Ninth Circuit would have reversed Mr. Ordonez's conviction and remanded for a new trial.” (Doc. 34 at 60.) Movant argues the Court failed to adequately inquire about the source of Juror 7's discomfort during deliberations.
This Court reviews “claims of ineffective assistance of appellate counsel according to the standard set out in [Strickland].” Cockett v. Ray, 333 F.3d 938, 944 (9th Cir. 2003). Petitioner may bring this claim on habeas review. U.S. v. Baker, 256 F.3d 855, 863 (9th Cir. 2001) (reviewing claim of “ineffective assistance of counsel on direct appeal” in § 2255 proceeding). Movant “must show that (i) counsel's advice fell below an objective standard of reasonableness and that (ii) there is a reasonable probability that, but for counsel's unprofessional errors, [defendant] would have prevailed on appeal.” (Id.) (cleaned up).
These two prongs partially overlap when evaluating the performance of appellate counsel. In many instances, appellate counsel will fail to raise an issue because she foresees little or no likelihood of success on that issue; indeed, the weeding out of weaker issues is widely recognized as one of the hallmarks of effective appellate advocacy ... Appellate counsel will therefore frequently remain above an objective standard of competence (prong one) and have caused her client no prejudice (prong two) for the same reason-because she declined to raise a weak issue.(Id.)
The Court must strike a delicate balance when questioning a juror during deliberations. A judge cannot ask about the content of jury deliberations. Fed. R. Crim. P. 23(b)(3); U.S. v. Symington, 195 F.3d 1080, 1087 (9th Cir. 1999) (“[W]hen a request for dismissal stems from the juror's view of the sufficiency of the evidence . . . a judge may not discharge the juror”) (citation omitted). As Movant notes (doc. 34 at 61), “[A] court may not delve deeply into a juror's motivations because it may not intrude on the secrecy of the jury's deliberations.” Symington, 195 F.3d at 1086. The reasons for this prohibition remain sound. Juror questioning “would invite trial judges to second-guess and influence the work of the jury,” and risk “exposing those deliberations to public scrutiny.” (Id.) (citations omitted).
Finally, “[t]he decision to excuse a juror is committed to the district court's discretion and we must affirm unless we are left with the definite and firm conviction that the court committed a clear error of judgment in reaching its conclusion after weighing the relevant factors.” U.S. v. Beard, 161 F.3d 1190, 1194 (9th Cir. 1998).
The abuse of discretion standard is consistent with other circuits. See e.g. U.S. v. Prosperi, 201 F.3d 1335, 1340 (11th Cir. 2000) (“Investigation of alleged juror misconduct is committed to the discretion of the district court and is reviewed only for an abuse of that discretion.”); U.S. v. Ruggiero, 928 F.2d 1289, 1301 (2d Cir. 1991) (considering Rule 23(b) and stating “decisions as to when to question jurors and the manner of that inquiry are generally left to the trial judge's broad discretion.”).
B. Transcript of Discussion.
While the jury was deliberating, the Court had the following discussion with the parties and, later, Juror 7:
THE COURT: Thank you. Please be seated. All right, everyone, we've received another note from the jury room. And the note says, “Juror 7 asking to be excused. Not comfortable.” That's all it says. It's not signed by anyone, although I think it's Juror 7 who wrote it.
When the lunch order arrived, Nancy took the lunch to the jury room and was standing in the hallway handing the lunches into the jury room, and the juror who I think is Juror 7 asked her if he could speak with her privately and she said no. “If you have a concern, write a note.” And it was five minutes later, two minutes later, that this note came out of the jury room. So that's everything we know about it, is that Juror 7 is apparently asking to be excused because he's not comfortable. He's the young man who I think was on the far right of the back row.
So we need to do something with this note. Since I got the note, I've been looking at some case law. Rule 23(b) oithe Federal Rules of Criminal Procedure states-actually Rule 23(b)(3) says, “After the jury has retired to deliberate, the court may permit a jury of 11 persons to return a verdict, even without a stipulation by the parties, if the court finds good cause to excuse a juror.”
The Ninth Circuit, in the Symington case, which I looked up because I remember that was a conviction of the Arizona governor years ago that was reversed because the district judge excused a juror during trial, addresses the standard for when excusing of a juror is appropriate. And the sort of bottom line that the Ninth Circuit established in that case says, and I'm now reading from headnote 7 of the Symington case, which is at 195 F.3d 1080. This is page 1087:
We hold that if the record evidence discloses any reasonable possibility that the impetus for a juror's dismissal stems from a juror's views on the merits of the case, the court must not dismiss the juror. Under such circumstances, the trial judge has only two options: send the jury back to continue deliberating or declare a mistrial.” So-and in that case, the Ninth Circuit found that there was a reasonable possibility that the woman excused from the jury was excused because of her views on the
merits of the case. There was just a disagreement going on between her and the other 11 jurors. And therefore reversed the conviction. The case law in Symington, and I've also looked at United States versus Vartanian, V-A-R-T-A-N-I-A-N, which is at 475 F.3d 1095, and United States versus Christensen, which is at 801 F.3d 970. Those cases seem to suggest the Symington standard is still the standard in the Ninth Circuit. Apparently it's not followed universally. There are other states and courts that disagree with it. But what Symington says and what my other reading seems to suggest is that a court cannot delve deeply into what the reasons are for a juror wanting to be excused or other jurors wanting the juror to be excused. So there's sort of this difficulty. How do you address this problem without delving deeply into the reasons? There are reasons people can be excused for good cause under Rule 23(b)(3). But if it is clearly in any way related to the merits of the case, it's not appropriate. That's as much as I've been able to learn in the half hour or so since we got the note. I'm interested in thoughts that you all have.
MS. HELART: May we have a couple seconds to think about this?
THE COURT: Yeah, um-hmm.
MS. HELART: Well, first of all, I suppose some thoughts. It really is a conundrum between the two positions. We can't delve at all into their deliberations, yet to figure out if it's the merits it seems like we have to ask that question. So at least one thinking-out-loud thought is asking the question broadly enough and so that the juror understands what we mean by the merits of the case, but just asking that one question might be a solution.
When the Court first read the question, I thought with the defense's permission we could excuse and then put on an alternate juror, but that doesn't seem to be an appropriate avenue. So with our current Juror Number 7, that's what the government proposes, is asking the question broadly enough, and no more. No more details. Just so we understand, because not being comfortable, that could be anything. That could be their personal interactions with other jurors, it could just be anything. And many things not having to do with anything of the merits.
THE COURT: Mr. Ber?
MR. BER: Thank you, Judge, for the recital of the law. I think given what we know and what the law is, we cannot act on this request. Just have to let the juror know the juror has to remain.
THE COURT: Well, the question I've wrestled with, Mr. Ber, is if the juror is feeling ill or if the juror is not comfortable because of some problem in the juror's life, that is an appropriate basis to excuse a juror. If we do nothing, we don't know if that's the reason.
What I had thought about, but I throw this out as a possibility, would be to bring in Juror 7, obviously on the record, have me explain to him that I cannot inquire and the parties cannot inquire into anything regarding the jury's deliberation or his views on the merits of the case, and we don't want him to say anything about those matters, but note that we've received the letter indicating that he is uncomfortable and ask him whether his discomfort in deliberating has to do with something other than the merits of the case, is it related to some other problem he's having. If the answer to that question is no, then I think we've got to stop because it would then suggest that his discomfort is in some way related to the merits of the case, and that's what I can't inquire into and that's what we can't excuse him for. But if he says, “Yeah, I've got a migraine headache,” that's a different situation that I think would fall under Rule 23(b).
So that's one approach. I was looking for some guidance in the Ninth Circuit case how you're supposed to walk this line, and I'm sure it's somewhere, but in the half hour I had, I didn't find it. But I think that would avoid the risk of inquiring into the merits or getting his thoughts on the merits or what the jury's saying about the merits, but at the same time allows us to find out if there's some other problem that is interfering with his ability to serve.
MR. BER: I understand. I guess that seems reasonable.
MS. HELART: I think it frames the question in a very controlled way so that we can kind of control and structure really what we need to know before we can decide. So we are in agreement with what the Court proposes.
THE COURT: All right. The other situation, obviously, is that the other jurors may or may not know that he sent the note. I assume they did. It's a little odd always to go to a jury room and call out one juror. So what I'm wondering about, we can send one of the bailiffs back to say that we would like to have Juror 7 come to the courtroom for a minute, come in, ask him those questions. Then, if the result is we just send him back, do I need to say more to the jury generally so they're not in the dark about what's happening with Juror Number 7?
I suppose one possibility would be to, after we've talked to him, bring in the entire jury and tell them what we did. Tell them essentially the same thing, that we've received a note Juror 7 was not comfortable, I can't inquire into the merits of the case or what's happening in deliberations, so the only thing I asked him was whether his discomfort was some other problem other than the merits of the case and the evidence, he said no, and I can't inquire further, so the jury needs to continue deliberating. That sort of puts him on the spot a little bit in the jury's eyes. But it also would perhaps reduce any speculation on the part of the other jurors as to what's going on in here.
Or we could just leave it. We could let him go back and let
them continue deliberating. If they ask what happened, he can tell them what happened in the courtroom, but there wouldn't be anything to tell except that I asked him a question. Any thoughts on that issue?
MS. HELART: I guess I feel like the Court has just asked a real several-part question where we-maybe we just want to cross one bridge at a time. The one bridge I think to cross first is definitely having Juror 7 come out to the courtroom, but also instructing the jury definitively to stop deliberating because they won't have their 12th member. So that I think we just-if we handle that and then handle our questioning of Juror 7, then I think we'll know better how to handle the rest.
THE COURT: I think they know they're not supposed to be deliberating without a juror in the room.
MR. BER: The worry about this whole procedure is not tainting the jury deliberation process. The more we intrude, the more we question them about, the more disruption, so I don't like the idea of having them all come in here and explain it. But I understand having 7 leave and come back, that could create an atmosphere what was said, is 7 involved in some kind of argument where he's being seen as telling on others and it pollutes the atmosphere.
The only thing that I could conceivably see that's a legitimate reason why Number 7 should walk out of the room is for a health problem. Maybe the best way to handle it is to send a note back to him, if this is health related, say yes or no, and then we'll have him out here. If it's not, he should remain and try to complete the process. But maybe I'm missing some possibility.
MS. HELART: I think a health reason could be one non-merits-of-the-case reason, but that's too narrow. It could be an interpersonal dynamic with another juror that has nothing to do with the merits but still would feel uncomfortable. That part is reading the tea leaves. We couldn't guess that it's just a health problem if it's not the merits. So I do disagree with that. But I do think we're stuck until we know what Juror 7 would say to the question that the Court proposes generally.
THE COURT: All right. Well, I don't think I want to send a personal note back in to Juror 7. I don't want to start a correspondence with Juror 7. I think if we're going to talk with him, it ought to be on the record and in as controlled an environment as it can be. So I'll have him come in and I will ask him the question I described to you. If his answer is it is not something unrelated to the case, then we'll end it there. I'll tell him that I'm not going to excuse him and he needs to continue and deliberate. And then we can talk then about whether we think, in light of how long it took and how well it went, whether we need to do more with the jury. Obviously, if he provides another reason unrelated to the merits to be excused, then we'll talk probably at sidebar about whether
that's good cause under Rule 23(b)(3).
MS. HELART: If by chance Juror 7 asks the question, what do you mean by the merits of the case, what would our answer be?
THE COURT: What I would say is, we don't want any information about what the jury is discussing and I can't dismiss you if your discomfort is over the evidence or how the jury is coming out on the evidence or, you know, what the result is going to be in the case. I would do something like that to define what I mean by the merits of the case. Okay. Let's ask Juror 7 to come in.
(Juror Number 7 entered the courtroom.)
THE COURT: All right. Go ahead and have a seat, folks. Juror 7, you can have a seat, too. Thank you for coming in. I called you in because of the note that we received.
JUROR: Yes.
THE COURT: Let me explain to you a couple of things, and then I'm going to ask you a question.
JUROR: Okay. Thank you.
THE COURT: I cannot inquire into what's happening on the jury deliberations. I can't inquire where the jury is, who's agreeing with whom on what issues. That's all information that needs to stay in the jury room.
JUROR: Okay.
THE COURT: And so I can't ask you any questions about, and I don't want you to tell me anything about, what the jury is deliberating about, how it's viewing the evidence, who's for what position. None of that can be mentioned. Jurors can be excused if during the course of deliberation there is some other problem that they encounter that makes it unable for them to continue. A health problem, a home problem, something like that. So what I need to find out is whether it's that kind of a problem that you're having that is causing your discomfort. And I need to ask that in a way that doesn't elicit any information about what's happening in the jury room. So the question that I want to ask you is whether the discomfort you're experiencing is because of something other than this case and the evidence and the discussion of the jury? Is there something else happening with you that is causing your discomfort?
JUROR: No, there's not.
THE COURT: Okay. If that's the case, then I can't excuse you as a juror and I can't ask you more because we really protect jury deliberations. So in response to your question, although we give it full respect, I can't excuse you and I'm going to ask you to continue and deliberate to the best of your ability.
JUROR: I understand and thank you for your time.
THE COURT: Okay. Thank you. I think if you just push on that, it will open.
(Juror Number 7 exited the courtroom.)
THE COURT: All right, Counsel, Juror 7 was out of the room for two minutes, probably. I don't think we ought to call in the rest of the jury to talk to them. I think that just makes this more of an issue than it already is. Do either of you disagree with that?
MR. BER: No, I don't.
MR. DAY: Government agrees, Your Honor.
THE COURT: Okay. Then we will let you know what we hear. Thank you all.(CR Doc. 156 at 9-19.)
C. Analysis.
Here, appellate counsel's decision to bypass this argument on appeal did not fall below an objective standard of reasonableness because the district court did not err. Movant asserts error because the Court “did not ask Juror 7 whether there was some kind of juror misconduct taking place that was making” Juror 7 uncomfortable. (Doc. 34 at 62.) Movant submits “the trial judge overlooked a third source of potential ‘discomfort' that would have been a legitimate source of inquiry during deliberations-juror misconduct, such as drug use, racial animus, or evidence that another juror lied during voir dire.” (Doc. 36 at 1.)
The Court here did not abuse its discretion to investigate potential juror misconduct when there was no evidence to suggest it was occurring. Juror 7 did not report a problem with other jurors. Instead, Juror 7 submitted a note that read he was “not comfortable.” CR Doc. 156 at 9. The note did not suggest there was “drug and alcohol abuse, racial animus on the part of another juror, or information that suggests another juror's answer to a voir dire question might have been false.” (Doc. 34 at 62.) The cases cited by Movant (e.g., Symington, Tanner, Pena-Rodriguez, Wargur, Estrada) all included statements (during trial or post-trial) by a juror noting problems with another juror. Juror 7's note did not report a problem with other jurors.
Also, Movant's counsel was opposed to additional questioning by the Court. When the Court read the note to counsel, Movant's counsel stated, “I think given what we know and what the law is, we cannot act on this request. Just have to let the juror know the juror has to remain.” (CR Doc. 156 at 12.) When the Court explained that a limited question would be appropriate, Movant's counsel stated, “I understand. I guess that seems reasonable.” (Id. at 13.) When the Court suggested Juror 7 should be brought into the courtroom, Movant's counsel suggested the Court instead send a note to Juror 7 about the juror's health. (Id. at 16.) Movant's counsel advised that if Juror 7 did not have a health issue, then “he should remain and try to complete the process.” (Id. at 16.)
Finally, the Court's approach was consistent with Symington's mandate that a judge “must not compromise the secrecy of jury deliberations.” Symington, at 1086. Every additional question of a juror runs a risk of “exposing those deliberations to public scrutiny.” Id. A trial judge is also “in the best position to evaluate the jury's ability to deliberate.” Beard, 161 F.3d at 1194 (internal quotation marks omitted). In a case where the juror's note did not suggest juror misconduct and Movant opposed additional questioning, the Court did not abuse its discretion when questioning Juror 7.
Movant also fails to establish there was a reasonable probability that, but for counsel's alleged error, Movant would have prevailed on appeal. For the reasons stated above, the Court does not find Movant's argument meritorious. The Court also rejects Movant's argument that any alleged error by the Court resulted in structural error. Movant presents no case applying a structural error analysis in the context of juror questioning. See Neder v. U.S., 527 U.S. 1, 8 (1999) (noting structural error in a “very limited class of cases” such as complete denial of counsel, biased trial judge, racial discrimination in selection of grand jury, denial of self-representation at trial, denial of public trial, and a defective reasonable doubt instruction). Instead, courts apply the familiar abuse of discretion standard. See e.g. U.S. v. Litwin, 972 F.3d 1155, 1170 (9th Cir. 2020) (“In deference to the district court's superior vantage point, we review the district court's dismissal of a juror during deliberations for abuse of discretion.”); Symington, 195 F.3d at 1085 (“We review a district court's dismissal of a juror during deliberations for abuse of discretion.”).
See also, U.S. v. Norton, 867 F.2d 1354, 1364 (11th Cir. 1989) (finding no error where a juror sent a note asking “whether he was compelled to vote with the majority ‘even under duress'” but the court did not inquire further because to “have done so would itself have risked reversible error, since the juror's note made clear that the pressure allegedly placed upon him resulted from discussions between the jurors and not from extraneous prejudicial information.”).
Movant's citations to Pena-Rodriguez v. Colorado, 580 U.S. 206, 209 (2017) (allowing post-verdict hearing “where a juror makes a clear statement that indicates he or she relied on racial stereotypes or animus to convict a criminal defendant”) and Tanner v. United States, 483 U.S. 107, 127 (1987) (affirming ruling that an “additional post-verdict evidentiary hearing was unnecessary” where a post-sentencing juror affidavit alleged jurors were drunk and drug trafficking during deliberations) shed no light on this question.
Movant's counsel initially opposed questioning Juror 7 but later agreed to the Court's limited questioning. There is an argument that an invited error standard would apply on appeal. Movant's counsel should not be given the benefit of opposing questioning, then agreeing to the Court's limited question, and then be permitted to complain that the record is now undeveloped regarding Juror 7's discomfort. U.S. v. Ahmad, 974 F.2d 1163, 1165 (9th Cir. 1992) (finding invited error where defense counsel agreed to the dismissal of a juror under Rule 23(b) and noting where “the trial court announces its intention to embark on a specific course of action and defense counsel specifically approves of that course of action, we will regard any error as having been caused by the actions of defense counsel, and review the error under the doctrine of invited error.”). The Court finds that the abuse of discretion standard is the likely standard to be applied on appeal.
Movant is correct that the “presence of a biased juror is a structural error, not subject to the harmless error analysis, and if one is found the defendant is entitled to a new trial.” Estrada v. Scribner, 512 F.3d 1227, 1235 (9th Cir. 2008) (affirming denial of § 2254 petition that alleged juror bias). But a biased juror was not found on Movant's jury, and a “presumption of impartiality attaches” when a juror agrees to render a verdict based on the evidence. Ybarra v. McDaniel, 656 F.3d 984, 992 (9th Cir. 2011) (citing Murphy v. Florida, 421 U.S. 794, 800 (1974)). Also, Movant's counsel had the ability to request additional questioning of Juror 7 during deliberations but opposed doing so. Counsel is not arguing Mr. Ber provided ineffective assistance by failing to push for more questioning of Juror 7, presumably because Mr. Ber made a sound tactical decision. Mr. Ber likely saw a juror who was uncomfortable with voting to convict and hoped the juror would remain on the jury and vote to acquit. Movant also is not arguing he was subject to a biased jury in violation of his Sixth Amendment right to a verdict by impartial jurors, presumably because there is no evidence that a biased juror was present on the jury. Accordingly, structural error analysis is not appropriate here.
Movant fails to establish that appellate counsel provided ineffective assistance by failing to raise the claim in Ground Eighteen. Movant is not entitled to relief on this claim. See Wildman v. Johnson, 261 F.3d 832, 840 (9th Cir. 2001) (“[A]ppellate counsel's failure to raise issues on direct appeal does not constitute ineffective assistance when appeal would not have provided grounds for reversal.”).
D. Ground Thirteen's Claim Regarding Mistrial.
Movant argues in Ground Thirteen that counsel provided ineffective assistance when he failed to request a mistrial regarding Juror 7's request to be excused based on discomfort. (Doc. 34 at 55.) After a jury is impaneled, a district court may only declare a mistrial if a defendant consents or if there is “manifest necessity.” U.S. v. Bates, 917 F.2d 388, 392-93 (9th Cir. 1990). For the reasons stated above, the Court did not err when questioning Juror 7. The Court could not have removed the juror for being uncomfortable. See U.S. v. Matthews, 709 Fed.Appx. 481 (9th Cir. 2018) (unpublished) (reversing conviction where the judge dismissed a “crying” and “very upset” juror because there was a “reasonable possibility” that “the dismissal of the sole holdout juror was related to the juror's views of the case.”). Movant's counsel also had reason to believe Juror 7 would vote to acquit. Counsel did not provide ineffective assistance by failing to move for a mistrial. Movant is not entitled to relief on this claim.
VI. Conclusion.
The Motion lacks merit. The record is sufficiently developed, and the Court finds the Motion, files, and record conclusively show Movant is entitled to no relief.
VII. Evidentiary Hearing.
Although the undersigned concludes that an evidentiary hearing is likely unnecessary for resolving this matter, the District Court is in the better position to weigh the allegations, its memory, and any credibility determinations. Under section 2255, such a hearing must be granted “[u]nless the motion and the files and record of the case conclusively show that the prisoner is entitled to no relief.” 28 U.S.C. § 2255. “In addition, judges may use their own notes and recollections of the plea hearing and sentencing process to supplement the record.” Shah v. U.S., 878 F.2d 1156, 1159 (9th Cir. 1989). See also U.S. v. Hafoka, 312 Fed.Appx. 77 (9th Cir. 2009) (A district judge has the discretion to rely on the record and “the judge's own notes and recollection of the trial and common sense.”). Also, “[c]ase law and the Rules Governing Habeas Corpus Cases recognize that courts may expand the record for considering section 2255 motions with discovery and documentary evidence.” Watts v. U.S., 841 F.2d 275, 277 (9th Cir. 1988) (affirming denial of a § 2255 motion without an evidentiary hearing).
The Court concludes an evidentiary hearing is not necessary for Grounds One through Eighteen. For many of these claims, the Court assumed the facts as true and concluded Movant was not entitled to relief. Movant is not entitled to an evidentiary hearing for these claims.
The material facts-that is, what Mitchell's lawyers did, what they didn't do, and why-are not disputed. What is disputed is whether counsels' investigation and strategic decisions were reasonable as a matter of law.. Because the material facts are not in dispute-they either entitle Mitchell to relief or they don't-the district court did not abuse its discretion in declining to hold an evidentiary hearing.Mitchell v. U.S., 790 F.3d 881, 886 (9th Cir. 2015).
Regarding Movant's claim in Ground Seven that counsel failed to obtain cell phone records, Movant presents no controverted facts for the Court to consider. Instead, Movant offers nothing more than speculation that the records would be helpful. He is not entitled to a hearing on this claim. See Gonzalez v. Knowles, 515 F.3d 1006, 1014 (9th Cir. 2008) (affirming denial of § 2254 evidentiary hearing where claims were “grounded in speculation” and void “of any quantum of mitigating evidence”); Rasmussen v. Frakes, 325 Fed.Appx. 500, 502 (9th Cir. 2009) (affirming denial of § 2255 evidentiary hearing request based only on “conclusory allegation” that a juror may have seen movant's leg restraints).
Regarding Movant's claim in Ground Eight that counsel failed to call Movant as a trial witness, Movant is not entitled to an evidentiary hearing because this claim can be resolved on the current record. See Guerrero v. U.S., 84 F. App'x. 933, 935 (9th Cir. 2003) (affirming denial of evidentiary hearing in § 2255 proceeding where movant alleged he was denied right to testify, but remained silent, and waived his right); U.S. v. Cervantes, 41 F. App'x. 918, 923 (9th Cir. 2002) (same).
Regarding Movant's claim in Ground Eighteen that the Court erred regarding Juror 7, the Court already conducted a hearing during trial with Juror 7. Movant would not likely be entitled to a new hearing under § 2255 or Rule 606(b) of the Federal Rules of Evidence. See U.S. v. Scott, 576 F. App'x. 409, 411 (5th Cir. 2014) (affirming denial of evidentiary hearing in 2255 proceeding alleging juror may have been “improperly influenced by an attraction to the AUSA that developed during the trial.”); U.S. v. Duffy, CR-22-08057-PCT-DGC, 2024 WL 663440, at *4 (D. Ariz. Feb. 16, 2024) (ruling under Rule 606(b) that defendants were not “entitled to conduct discovery in a search for some external influence that might have affected the jury.”).
Accordingly, IT IS RECOMMENDED that the Amended Motion to Vacate, Set Aside or Correct Sentence (doc. 34) be DENIED.
IT IS FURTHER RECOMMENDED a certificate of appealability and leave to proceed in forma pauperis on appeal be DENIED. A court may issue a certificate of appealability where the moving party has “made a substantial showing of the denial of a constitutional right.” 28 U.S.C.A. § 2253(c)(2); U.S. v. Zuno-Arce, 339 F.3d 886, 888 (9th Cir. 2003). “Where a district court has rejected the constitutional claims on the merits ... [t]he petitioner must demonstrate that reasonable jurists would find the district court's assessment of the constitutional claims debatable or wrong.” Zuno-Arce, 339 F.3d at 88889 (quoting Slack v. McDaniel, 529 U.S. 473, 484 (2000)). Movant has not demonstrated reasonable jurists could find the ruling debatable or jurists could conclude the issues presented are adequate to deserve encouragement to proceed further. See Miller-El v. Cockrell, 537 U.S. 322, 327 (2003).
This Report and Recommendation is not an order that is immediately appealable to the Ninth Circuit Court of Appeals. Any notice of appeal under Federal Rule of Appellate Procedure 4(a)(1) should not be filed until entry of the District Court's judgment. The parties have fourteen days from the date of service of this Report and Recommendation's copy to file specific, written objections with the Court. See 28 U.S.C. § 636(b)(1); Fed.R.Civ.P. 6(a), 6(b) and 72. Thereafter, the parties have fourteen days to respond to the objections.
Failure to timely object to the Magistrate Judge's Report and Recommendation may result in the District Court's acceptance of the Report and Recommendation without further review. See U.S. v. Reyna-Tapia, 328 F.3d 1114, 1121 (9th Cir. 2003). Failure to timely object to any factual determinations of the Magistrate Judge may be considered a waiver of a party's right to appellate review of the findings of fact in an order of judgment entered pursuant to the Magistrate Judge's Report and Recommendation. See Fed.R.Civ.P. 72.