Kilbride v. United States of America

Filing 19

ORDER ADOPTING REPORT AND RECOMMENDATION 17 . Jeffrey A. Kilbride's 5 petition to vacate, set aside, or correct sentence is denied. A certificate of appealability and leave to proceed in forma pauperis on appeal are denied. The Clerk shall terminate this action. Signed by Judge David G Campbell on 6/28/12. (DMT)

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1 WO 2 3 4 5 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE DISTRICT OF ARIZONA 8 9 United States of America, No. CV11-0174-PHX-DGC CR05-0870 PHX DGC Plaintiff, 10 ORDER 11 v. 12 Jeffrey A. Kilbride, Defendant/Movant. 13 14 15 Jeffrey A. Kilbride moves to vacate, set aside, or correct his sentence pursuant to 16 28 U.S.C. § 2255. Doc. 5. On April 19, 2012, Magistrate Judge Lawrence O. Anderson 17 issued a report and recommendation (“R&R”) that recommended the motion be denied. 18 Doc. 17. Petition has filed an objection to the R&R. Doc. 18. For the reasons that 19 follow, the Court will accept the R&R and deny Mr. Kilbride’s motion. 20 I. Background. 21 On August 25, 2005, Movant and two co-defendants were indicted in the United 22 States District Court, District of Arizona, on numerous counts pertaining to the electronic 23 transmission of obscene images. 05-CR-00870-DGC, Doc. 1. Following a jury trial, 24 Movant was convicted of one count of conspiracy to commit fraud in connection with 25 electronic mail in violation of 18 U.S.C. § 371 (Count 1), two counts of committing fraud 26 in connection with electronic mail in violation of 18 U.S.C. §§ 1037(a)(3) and (a)(4) 27 (Counts 2 and 3), two counts of importation or transportation of obscene material in 28 violation of 18 U.S.C. § 1462 (Counts 4 and 5), two counts of transportation of obscene 1 material for sale or distribution in violation of 18 U.S.C. § 1465 (Counts 6 and 7), and 2 one count of conspiring to launder money in violation of 18 U.S.C. § 1956(h) (Count 8). 3 CR Doc. 296. 4 On August 24, 2007, the Court denied Movant’s motion for judgment of acquittal 5 or, in the alternative, for a new trial. Doc. 334. On September 24, 2007, the Court 6 sentenced Movant to 78 months imprisonment followed by three years of supervised 7 release. CR Doc. 359. This sentence included an enhancement for obstruction of justice 8 pursuant to U.S.S.G. § 3C1.1. CR Doc. 358, at 4. Movant filed an appeal in the Ninth 9 Circuit raising several grounds for relief: (1) the Court erred in instructing the jury on the 10 definition of “obscene” by too narrowly defining the phrase “contemporary community 11 standards,” (2) his conviction for conspiracy to commit money laundering should be 12 vacated because of the lack of a predicate-offense felony conviction, and (3) the Court 13 erred in applying the U.S.S.G. § 3C1.1 sentencing enhancement for obstruction of justice. 14 CR Doc. 382; see Doc. 17. The Ninth Circuit affirmed Movant’s conviction and sentence 15 and remanded the case to this Court to correct a clerical error in the written judgment. 16 CR Docs. 532, 532-1. The Court issued an amended judgment on March 19, 2010. 17 CR Doc. 539. 18 On January 26, 2011, Movant filed a pro se motion to vacate, set aside, or correct 19 his sentence pursuant to 28 U.S.C. § 2255. Doc. 1. He then filed a motion for leave to 20 file a supporting memorandum. Doc. 3. On February 8, 2011, the Court denied the 21 motion for leave to file a supporting memorandum, dismissed the § 2255 motion, and 22 granted leave to file an amended § 2255 motion. Doc. 4. Movant filed his amended 23 § 2255 motion on March 4, 2011, raising three grounds for relief based on ineffective 24 assistance of trial counsel. Doc. 5. The government filed a response (Doc. 13) and 25 Movant filed a reply (Doc. 14). Judge Anderson issued an R&R recommending that the 26 motion be denied and that a certificate of appealability (“COA”) and leave to proceed in 27 forma pauperis on appeal be denied because Movant has not made a substantial showing 28 of the denial of a constitutional right. Doc. 17, at 19. Movant has filed an objection on -2- 1 Grounds One, Two, and Three, argues that Judge Anderson failed to consider the whole 2 record, and raises three factual objections. Doc. 18. The Court will consider Movant’s 3 factual objections before turning to those based on law. 4 II. Factual Objections. 5 A. 6 A district court must grant an evidentiary hearing on a movant’s § 2255 motion if 7 there is a factual dispute and the petitioner’s version, if true, would warrant relief. United 8 States v. Chacon-Palomares, 208 F.3d 1157, 1159 (9th Cir. 2000). Evidentiary hearings 9 are particularly appropriate when “claims raise facts which occurred out of the courtroom 10 Legal Standard. and off the record.” United States v. Burrows, 872 F.2d 915, 917 (9th Cir. 1989). 11 B. Discussion. 12 Movant objects that the facts he contested in his reply brief (Doc. 14) nonetheless 13 appear in Judge Anderson’s R&R. Doc. 18, at 20. Movant takes issue with (1) the 14 timeline surrounding the disclosure of Mr. Law’s discovery, (2) the allegation that 15 Movant’s Mauritius counsel discouraged Mr. Law from traveling to the United States to 16 testify, and (3) the government’s claim that Movant has no standing to take action against 17 Deutsche Bank and Inter-Ocean Management in Mauritius. Id. at 20-21. 18 Judge Anderson’s R&R sets forth the following relevant dates with respect to Mr. 19 Law. See Doc. 17, at 4-5. On May 9, 2007, the government advised Mr. Law that his 20 testimony would be of significant assistance in its case against Movant. On May 11, 21 2007, Mr. Law responded that he was willing to assist the government, but that Mauritius 22 law limited his ability to discuss the trust he had helped Movant and codefendants 23 establish. On May 12, 2007, the government responded that it understood and accepted 24 that limitation, but still wanted to speak with Mr. Law. On May 25, 2007, Mr. Law 25 agreed to cooperate with the government in exchange for immunity from prosecution. 26 The government claims to have provided its May 12, 2007 letter to Movant and 27 codefendants in discovery on May 18, 2007. Mr. Law was listed as a witness on the 28 government’s witness list, filed on May 30, 2007. On June 8, 2007, three days after trial -3- 1 started, Movant’s Mauritius counsel sought and obtained an ex parte temporary 2 injunction from the Supreme Court of Mauritius that limited Mr. Law’s ability to testify. 3 The dates in Judge Anderson’s R&R match the dates alleged by Movant in his 4 reply brief (Doc. 14, at 2-3) and his objections to the R&R (Doc. 18, at 18-19 n.3), with 5 the exception of the May 18, 2007 date on which the government allegedly provided 6 Movant with a copy of its May 12, 2007 letter to Mr. Law. Movant argues that, “[f]or 7 this claim to be true, the Government would have to have disclosed Law’s planned 8 appearance at trial before offering him conditional immunity on May 25, 2007 or his 9 acceptance of the offer on May 29, 2007.”1 Doc. 14, at 3. The government does not 10 claim, however, that it disclosed Mr. Law’s planned appearance at trial on May 18, 2007, 11 but merely that, on that date, it provided Movant with its May 12, 2007 letter to Mr. Law. 12 See Doc. 13, at 7. Movant offers no other evidence to refute the implication that he was 13 at least aware of the government’s communications with and interest in Mr. Law by 14 May 18, 2007. 15 Movant agrees that the government filed its witness list naming Mr. Law as a 16 witness on May 30, 2007. Doc. 14, at 3; Doc. 18, at 18 n.3. Movant also concedes that 17 his Mauritius counsel did not file an injunction against Mr. Law until June 8, 2007, three 18 days after the start of trial. Doc. 14, at 3. Movant’s argument that his trial counsel 19 requested all discovery related to Mr. Law on June 2, 2007, and that the government 20 provided this discovery on June 3, 2007 (Doc. 18, at 18-19 n.3), does not alter the fact 21 that Movant was aware from the May 30, 2007 witness list that Mr. Law would testify at 22 trial, and yet waited until after the start of trial and only days before Mr. Law was 23 scheduled to take the stand to initiate the Mauritian injunction. As the Court noted in its 24 order explaining Movant’s sentence, the timing of these events confirmed its conclusion 25 1 26 27 28 Movant’s reply brief lists May 25, 2007 as the date the government sent Mr. Law an offer of conditional immunity (Doc. 14, at 2), but in Movant’s objections to the R&R, he notes that “Laval Law did not accept the Government’s offer of immunity until May 25, 2007” (Doc. 18, at 18 n.3). It appears that the government indeed sent Mr. Law an offer of conditional immunity on May 25, 2007, and that Mr. Law accepted on May 29, 2007. See CR Doc. 259-1, at 43-45. -4- 1 that Movant initiated the lawsuit in Mauritius not to protect the confidential information 2 of Ganymede Marketing, Ltd. (“Ganymede”), Movant’s shell corporation in Mauritius, 3 but to interfere with Mr. Law’s testimony. CR Doc. 358, at 5. 4 Movant disputes the government’s allegation that his Mauritius counsel 5 discouraged Mr. Law from traveling to the United States to testify. He claims that this 6 allegation was refuted by Mr. Law’s United States counsel. Doc. 14, at 5. Lawrence 7 Palles, Mr. Law’s United States counsel, did clarify on the record that “[n]o threat was 8 ever made. No request or statement that [Mr. Law] shouldn’t come here and testify was 9 ever made.” Doc. 272, at 6. Mr. Palles stated, however, that “the substance of the 10 conversation [between Movant’s Mauritius counsel and Mr. Law] and the tone of it 11 [were] quite at odds with what the version [sic] that we have from the defendant’s 12 Mauritius counsel.” Id. In expressing his concern about potential repercussions that his 13 client might face in Mauritius as a result of testifying in Movant’s trial, Mr. Palles said: 14 “My concern is not with local counsel. My concern is with what happens in Mauritius. I 15 don’t have any reason to feel as confident with regard to the defendant’s lawyer in 16 Mauritius. . . . Mr. Goldsobel told us that the Mauritius lawyer had said that the 17 conversation he had on the phone with Mr. Law a week or two ago was very limited to 18 asking for documents and asking if he had counsel. I believe if Mr. Law were asked to 19 testify about that, he would tell a very different story.” Id. Thus, while the substance of 20 their conversation is uncertain, the record indicates that Movant’s Mauritius counsel did 21 have a conversation with Mr. Law while he was represented by counsel, and that this 22 conversation entailed more than a limited request for documents. Given the timing of the 23 Mauritian injunction against Mr. Law, even if the Court were to find that Movant’s 24 Mauritius counsel never discouraged Mr. Law from testifying, Movant has not shown 25 that his version of the events would warrant relief. The injunction itself was sufficient to 26 warrant the obstruction of justice enhancement. 27 Similarly, Movant’s objection to the government’s claim that he had no standing 28 to take action in Mauritius against Deutsche Bank and Inter-Ocean Management, if -5- 1 accepted, would not warrant relief. The government does not now assert that Movant had 2 no standing to assert rights regarding Ganymede; rather, the government made that 3 argument at a June 12, 2007 hearing on the government’s emergency motion for a 4 protective order relating to Mr. Law. See Doc. 13, at 8; CR Doc. 259, at 4. The Court’s 5 post-sentencing order indicates that Movant hid his interest in Ganymede and forced the 6 government to prove, through an affidavit filed by Movant in the Mauritius action, that he 7 actually owned and controlled the company. CR Doc. 358, at 6. At the same time, 8 Movant argued that the legal actions he initiated in Mauritius were legitimate because he 9 was the true owner of Ganymede. Id. The Court was convinced by Movant’s duplicity 10 relating to his interest in Ganymede that the Mauritius lawsuit was not filed for the 11 legitimate purpose of protecting Ganymede, but for the illegitimate purpose of interfering 12 with evidence at trial. Id. 13 In sum, none of Movant’s factual objections, even if credited, would warrant 14 habeas relief. See Chacon-Palomares, 208 F.3d at 1159. The Court therefore declines to 15 hold an evidentiary hearing, and will proceed to address Movant’s legal objections. 16 III. Legal Objections. 17 A. 18 Section 2255 provides, in relevant part: 19 20 21 22 Standard of Review. A prisoner in custody under sentence of a [federal] court . . . claiming the right to be released upon the ground that the sentence was imposed in violation of the Constitution or laws of the United States, . . . or is otherwise subject to collateral attack, may move the court which imposed the sentence to vacate, set aside, or correct the sentence. 23 24 28 U.S.C. § 2255(a). 25 A party may file specific written objections to the R&R’s proposed findings and 26 recommendations. Fed. R. Civ. P. 72(b); 28 U.S.C. § 636(b)(1)(C). The Court must 27 undertake a de novo review of those portions of the R&R to which specific objections are 28 made. See id.; Thomas v. Arn, 474 U.S. 140, 149 (1985); United States v. Reyna-Tapia, -6- 1 328 F.3d 1114, 1121 (9th Cir. 2003). The Court may accept, reject, or modify, in whole 2 or in part, the findings or recommendations made by the magistrate judge. Fed. R. Civ. 3 P. 72(b); 28 U.S.C. § 636(b)(1). 4 In the context of ineffective assistance of counsel claims, “[j]udicial scrutiny of 5 counsel’s performance must be highly deferential.” Strickland, 466 U.S. at 689. When 6 reviewing counsel’s performance, the Court engages a strong presumption that counsel 7 rendered adequate assistance and exercised reasonable professional judgment. Id. To 8 prevail on a claim for ineffective assistance of counsel, Movant must show that “(1) his 9 attorney’s performance was unreasonable under prevailing professional standards, and 10 (2) a reasonable probability that but for counsel’s unprofessional errors, the results would 11 have been different.” United States v. Blaylock, 20 F.3d 1458, 1465 (9th Cir. 1994) 12 (quoting Strickland v. Washington, 466 U.S. 668, 687-94 (1984)). Strickland defines 13 reasonable probability as “a probability sufficient to undermine confidence in the 14 outcome.” Id. 15 B. 16 Movant objects that the R&R makes no reference to Movant’s reply brief 17 (Doc. 14), other than to acknowledge its existence (Doc. 17, at 1). Doc. 18, at 20. All 18 citations in the R&R to Movant’s arguments refer to his amended motion (Doc. 5) and 19 accompanying memorandum (Doc. 6). Id. Movant contends that Judge Anderson failed 20 to review the whole record because he did not incorporate any of the arguments made in 21 Movant’s reply brief. Id. 22 Failure to Review the Whole Record. The Ninth Circuit has explained that “[t]he record must show that the district court 23 examined all relevant parts of the state court record.” Richmond v. Ricketts, 774 24 F.2d 957, 961 (9th Cir. 1985). Here, the R&R shows that Judge Anderson carefully 25 analyzed all of the claims set forth by Movant. The Court cannot conclude, solely based 26 on lack of citations, that Judge Anderson completely disregarded Movant’s reply brief. 27 C. Ground One: Defining Obscenity According to a National Standard. 28 On direct appeal, Movant argued that “obscenity disseminated via email must be -7- 1 defined according to a national community standard” because there is “no means to 2 control where geographically their messages will be received.” United States v. Kilbride, 3 584 F.3d 1240, 1250-51 (9th Cir. 2009). The Ninth Circuit found that the Court should 4 have instructed the jury to apply a “national community” standard based on Ashcroft v. 5 ACLU, 535 U.S. 564 (2002), which “most directly addressed” Movant’s argument. Id. 6 at 1252. The Ninth Circuit also found, however, that the error, which was not raised at 7 trial, was “far from plain, and thus not reversible.” Id. at 1251, 1255. In Ground One, 8 Movant argues that because the Ninth Circuit found that the Court should have instructed 9 the jury to apply a national community standard, trial counsel was ineffective for failing 10 11 to request such an instruction. Doc. 5, at 5; Doc. 6, at 6. 1. Deficient Performance. 12 Judge Anderson found that trial counsel’s performance was not deficient given the 13 unsettled nature of the law at the time of Movant’s trial concerning the relevant 14 geographical community for determining whether materials disseminated via email were 15 obscene. Doc. 17, at 11. On direct review, the Ninth Circuit relied on Ashcroft v. ACLU, 16 in which the Supreme Court considered the constitutionality of the Child Online Privacy 17 Act. See Kilbride, 584 F.3d at 1252. The Ninth Circuit noted that “[t]he divergent 18 reasoning of the justices in and out of the majority in Ashcroft leaves us with no explicit 19 holding as to the appropriate geographic definition of contemporary community standards 20 to be applied” to Movant’s case. Id. at 1253. The court nonetheless “derive[d] guidance 21 from the areas of agreement in the various opinions,” and ultimately held that “a national 22 community standard must be applied in regulating obscene speech on the Internet, 23 including obscenity disseminated via email.” Id. at 1254. In so holding, the Ninth 24 Circuit acknowledged that prior to its decision “the relevant law in this area was highly 25 unsettled” and that its conclusion “was far from clear and obvious to the district court.” 26 Id. at 1255. Judge Anderson was not persuaded by Movant’s argument on Ground One 27 because it was based on the Ninth Circuit’s analysis, which was not available during 28 Movant’s trial, and thus relied heavily on hindsight. Doc. 17, at 10. -8- 1 Movant objects that his argument does not rely on hindsight and that trial counsel 2 simply failed to adequately research existing case law in order to raise a timely objection 3 to the community standards in the Court’s jury instructions. Doc. 18, at 4. Movant’s 4 national community standard argument “is not an entirely novel one.” Kilbride, 584 F.3d 5 at 1250. Ashcroft was published in 2002 and had been precedent for five years prior to 6 Movant’s trial. Doc. 18, at 5. Although the Ninth Circuit’s conclusion may have been 7 “far from clear and obvious,” Kilbride, 584 F.3d at 1255, appellate counsel was able to 8 distill the “extremely fractured” opinion of Ashcroft v. ACLU and present an argument for 9 a national community standard on appeal. Doc. 18, at 4. Movant argues that trial counsel 10 was able to find the relevant cases and conduct the same analysis as appellate counsel, 11 and that counsel’s failure to do so constituted deficient performance. Id. at 5. 12 The Supreme Court has cautioned, however, that “every effort be made to 13 eliminate the distorting effects of hindsight, to reconstruct the circumstances of counsel’s 14 challenged conduct, and to evaluate the conduct from counsel’s perspective at the time.” 15 Strickland, 466 U.S. at 689. 16 determining whether materials distributed via email are obscene is important in 17 determining whether trial counsel’s actions were reasonable at the time the jury 18 instructions were given. The Ninth Circuit expressly noted that, prior to its decision in 19 this case, “the relevant law in this area was highly unsettled[.]” Kilbride, 584 F.3d 20 at 1255. Movant takes issue with the fact that Judge Anderson cited a Ninth Circuit 21 unpublished disposition to support his conclusion that counsel’s performance was not 22 deficient in view of the unsettled law. Doc. 18, at 6; see Doc. 17, at 11 (citing United 23 States v. Marshall, 6 Fed. Appx. 626, 627 (9th Cir. 2001)). But other circuits similarly 24 have declined to hold counsel liable for errors in judgment based on unsettled law. See 25 United States v. De La Pava, 268 F.3d 157, 166 (2d Cir. 2001) (holding that counsel’s 26 failure to move to dismiss an indictment under the Vienna Convention did not constitute 27 ineffective assistance of counsel when, at the time, no court of appeals had held that the 28 provision at issue formed a basis for a motion to dismiss an indictment); Smith v. The clarity or lack of clarity in federal case law on -9- 1 Singletary, 170 F.3d 1051, 1054 (11th Cir. 1999) (“[A]s an acknowledgement that law is 2 no exact science, the rule that an attorney is not liable for an error of judgment on an 3 unsettled proposition of law is universally recognized[.]”) (internal quotation marks and 4 citations omitted); United States v. Jones, 918 F.2d 9, 11 (2d Cir. 1990) (holding that an 5 ineffective assistance of counsel claim has no merit when, at the time of trial, the 6 question of whether conspiracy could serve as a predicate act was an unsettled question 7 of law); Nelson v. Estelle, 642 F.2d 903, 908 (5th Cir. Unit A Apr. 17, 1981) (“[C]ounsel 8 is normally not expected to foresee future new developments in the law[.]”). 9 Movant’s ineffective assistance claim based on trial counsel’s failure to object to 10 the community standards jury instruction has no merit because it is unacceptably based 11 on hindsight. Applying “a strong presumption that counsel’s conduct falls within the 12 wide range of reasonable professional assistance,” Strickland, 466 U.S. at 689, the Court 13 cannot find fault with Movant’s trial counsel. 14 2. Prejudice. 15 Judge Anderson concluded that even if trial counsel had performed deficiently by 16 failing to propose a national community standard jury instruction, Movant has not 17 established that he was prejudiced as a result. Doc. 17, at 12. Movant objects that Judge 18 Anderson’s reasoning fails to account for the constitutional error that occurred. Doc. 18, 19 at 8. Movant contends that the Court’s jury instructions misstated an element of his 20 offense by inaccurately defining the term “obscenity,” and that under de novo review 21 “[a]ny omission or misstatement of an element of an offense in the jury instructions is 22 constitutional error and, therefore, requires reversal” unless the error is found “harmless 23 beyond a reasonable doubt.” 24 Chapman v. California, 386 U.S. 18, 24 (1967). Id. at 8-9 (quoting Kilbride, 584 F.3d at 1247); see 25 While Chapman’s “harmless beyond a reasonable doubt” standard applies on 26 direct review, a less onerous standard applies on habeas review for constitutional error. 27 The test on collateral review is whether the error “had a substantial and injurious effect or 28 influence in determining the jury’s verdict.” Brecht v. Abrahamson, 507 U.S. 619, 637 - 10 - 1 (1993) (quoting Kotteakos v. United States, 328 U.S. 750, 776 (1946)). Under this 2 standard, petitioners are not entitled to habeas relief based on trial error unless they can 3 establish that it resulted in “actual prejudice.” Id. (quoting United States v. Lane, 474 4 U.S. 438, 449 (1986)). The Ninth Circuit has clarified that Brecht’s harmless error 5 review is unnecessary for alleged Strickland violations “because ‘[t]he Strickland 6 prejudice analysis is complete in itself; there is no place for an additional harmless-error 7 review.’” Avila v. Galaza, 297 F.3d 911, 918 n.7 (9th Cir. 2002) (quoting Jackson v. 8 Calderon, 211 F.3d 1148, 1154 n.2 (9th Cir. 2000), cert. denied, 531 U.S. 1072 (2001)). 9 Movant admits that trial counsel’s proposed obscenity instruction included an 10 expansive definition of the “present-day community” and did not attempt to limit that 11 community to a precise geographical area. 12 Docs. 234, 241. He acknowledges that, at closings, trial counsel argued that the jury 13 should adopt an “expansive” view of the relevant community and consider not only 14 material purchased by defense investigators from several communities in Arizona, but 15 also materials available on “the entire worldwide web.” 16 instructed the jury: “Contemporary community standards are set by what is in fact 17 accepted in the community as a whole; that is to say by society at large, or people in 18 general . . . . The ‘community’ you should consider in deciding these questions is not 19 defined by a precise geographic area. You may consider evidence of standards existing 20 in places outside of this particular district.” CR Doc. 330, at 37-38. In view of these jury 21 instructions, Movant has not shown a reasonable probability that, had counsel requested 22 an instruction on national community standards, the result of the proceeding would have 23 been different. Strickland, 466 U.S. at 694. Doc. 6, at 9; see 05-CR-00870-DGC, Doc. 6, at 9. The Court 24 D. Ground Two: Conspiracy to Commit Money Laundering. 25 In Ground Two, Movant argues that if his obscenity convictions are reversed, then 26 it follows that the government failed to establish the requisite underlying unlawful 27 activity to support a conviction for conspiracy to launder money. 28 Movant’s conviction for 18 U.S.C. § 1956(a)(2)(B)(i) was premised on his knowledge - 11 - Doc. 18, at 10. 1 “that the transportation, transmission, or transfer of the money was designed in whole or 2 in part to conceal or disguise the nature, the location, the source, the ownership, or the 3 control of the proceeds from one of the specified unlawful activities, in this case the 4 transportation of obscene material in violation of 18 U.S.C. § 1462 . . . or the 5 transportation of obscene material for sale or distribution, in violation of 18 U.S.C. 6 § 1465[.]” Doc. 330, at 48 (Jury Instruction No. 46). For the reasons discussed above, 7 Movant has not demonstrated ineffective assistance of counsel with respect to his 8 underlying convictions for transporting obscene material. 9 10 E. Ground Three: Sentencing Enhancement for Obstruction of Justice. In Ground Three, Movant alleges that trial counsel had a conflict of interest which 11 resulted in ineffective assistance of counsel. 12 contends that counsel’s attempts to distance himself from the Mauritian injunction 13 against Mr. Law led the Court to apply the obstruction of justice sentencing 14 enhancement.2 Id. Judge Anderson correctly applied a Strickland analysis. The Sullivan 15 exception to the ordinary requirements of Strickland is inapplicable because Movant does 16 not allege a conflict of interest caused by joint representation of more than one defendant. 17 Doc. 17, at 16. See Earp v. Ornoski, 431 F.3d 1158, 1182-84 (9th Cir. 2005) (noting that 18 the Supreme Court in Mickens v. Taylor, 535 U.S. 162 (2002), expressly limited the 19 “actual conflict of interest” exception in Cuyler v. Sullivan, 446 U.S. 335, 348 (1980), to 20 cases involving joint representation, and that Strickland otherwise applies). Movant does 21 not object to the application of Strickland, but objects to Judge Anderson’s findings that 22 Movant has not demonstrated deficient performance or prejudice. 1. 23 Doc. 5, at 7; Doc. 6, at 15. Movant Deficient Performance. 24 Movant has submitted several emails purporting to show that trial counsel initiated 25 the Mauritian injunction against Mr. Law. Doc. 6, at 29-37. The Court agrees with 26 Judge Anderson that these emails indicate that trial counsel participated in 27 2 28 Judge Anderson has set forth the relevant facts relating to the Mauritius lawsuit. Doc. 17, at 4-6. The Court will not repeat them here. - 12 - 1 communications regarding the Mauritian injunction, but not that trial counsel was 2 responsible for initiating the injunction. See id.; Doc. 17, at 16. 3 Movant claims that trial counsel did not merely omit mentioning his personal 4 involvement with the injunction, but that he “made the objectively unreasonable decision 5 to lie to the District Court.” Doc. 18, at 13-14. According to Movant, trial counsel lied 6 by actively denying his involvement and casting the perceived blame for the injunction 7 onto Movant and Movant’s counsel in Mauritius, and asserting that Movant’s counsel in 8 Mauritius acted alone in drafting the pleading filed with the lawsuit and injunction. Id. 9 at 14. The record does not support these allegations. Trial counsel did deny having a 10 role in the Mauritian injunction. See Doc. 18, at 39 (Mr. Goldsobel: “The government 11 also casts the proceeding in Mauritius as one limited to Mr. Law. That is not the case. 12 The proceeding in Mauritius which, by the way, Your Honor, I do not have a role in, 13 relates to Deutsche Bank as well as Inter Ocean Management Limited[.]”). The Court 14 interprets this statement as a denial of any strategic involvement beyond communicating 15 with Mauritian counsel about proceedings in the district court. Movant has provided no 16 evidence that trial counsel’s statements were false. Trial counsel did not, as Movant 17 suggests, cast the blame for the injunction onto Movant; rather, trial counsel repeatedly 18 defended Movant before the district court. Doc. 18, at 40 (The Court: “How is that 19 consistent with your assertion that you didn’t know until you got this pleading that [Mr. 20 Law] was going to testify about anything beyond the e-mails?” Mr. Goldsobel: “Your 21 Honor, I didn’t have any role in drafting that pleading. . . . I don’t believe Mr. Kilbride 22 saw that pleading either before it was filed.”); id. at 45 (Mr. Goldsobel: “[W]e obtained a 23 lawful order in Mauritius, or Mr. Kilbride through his counsel in Mauritius.”); id. at 36 24 (Mr. Goldsobel: “Mr. Kilbride never saw the pleading before it was filed in court. He 25 never signed it. Never notarized it. He didn’t see it. He saw it after the injunction was 26 already obtained. It was a pleading drafted by the lawyer in Mauritius.”). 27 Trial counsel’s performance was reasonable at both the trial and sentencing stages. 28 At trial, he argued that the Mauritian injunction was lawfully obtained and repeatedly - 13 - 1 emphasized that it was not intended to impede Mr. Law’s ability to testify. CR Doc. 439, 2 at 8-9, 10, 12-13, 25. Trial counsel also submitted a supplemental memorandum before 3 sentencing, which reiterated that an obstruction of justice enhancement should not be 4 imposed because the Mauritian injunction was lawfully obtained from a foreign 5 jurisdiction and not intended to prevent Mr. Law from testifying. CR Doc. 355, at 2-4. 6 Trial counsel further argued that the enhancement should not apply because the Mauritian 7 injunction did not actually prevent Mr. Law from testifying, that the injunction merely 8 prevented Mr. Law from disclosing confidential information that was protected under 9 Mauritian law, and that he was unaware of any legal authority that a lawfully issued court 10 order could form the basis for an obstruction of justice enhancement. Id. at 2, 4. Movant 11 may have wanted his trial counsel to mention his personal involvement with the 12 Mauritian injunction, but effective assistance need not be “infallible” assistance. United 13 States v. McAdams, 759 F.2d 1407, 1409 (9th Cir. 1985). Here, it is clear that trial 14 counsel acted within the wide range of professionally competent assistance. Strickland, 15 466 U.S. at 690. 16 2. Prejudice. 17 Movant argues that the Court was initially amenable to trial counsel’s argument 18 that the injunction was not specifically targeted at preventing Mr. Law from testifying, 19 and that it was only counsel’s continued deception that caused a loss of faith with the 20 Court. Doc. 18, at 45. Moreover, Movant argues that the Court imposed an obstruction 21 of justice enhancement “precisely because counsel refused to clearly and honestly declare 22 his involvement in the lawsuit and injunction against Mr. Law in Mauritius.” Id. at 19. 23 Movant relies on the following portion of the Court’s sentencing order: “When Defendant 24 Kilbride’s United States counsel learned of the Mauritius lawsuit, he promptly took steps 25 to have Defendant Kilbride eliminate the injunction against Mr. Law. These events 26 confirm the Court’s conclusion that Defendant Kilbride initiated the lawsuit in Mauritius 27 . . . to interfere with Laval Law’s testimony.” Id. (quoting CR Doc. 358, at 5). 28 - 14 - 1 Movant has not shown a reasonable likelihood that the result of his sentencing 2 would have been different had the Court been aware of trial counsel’s alleged 3 involvement in obtaining the Mauritian injunction. In the same order referenced by 4 Movant, the Court explained its reasons for concluding that the injunction was a tactical 5 maneuver for the purpose of interfering with Mr. Law’s testimony. See CR Doc. 358, 6 at 5. Movant took no action when the government obtained documents from Ganymede 7 and provided these documents to Movant during the course of discovery. Id. During 8 May 2007, the government arranged for Mr. Law to travel to the United States and testify 9 against Movant and his codefendants at trial; this information was disclosed to Movant 10 before trial, and yet he still took no action in the Mauritius courts. Id. It was not until 11 June 8, 2007, after trial began and only days before Mr. Law was to testify, that Movant 12 initiated legal action in Mauritius concerning Mr. Law’s anticipated testimony in this 13 Court. Id. Even if trial counsel had revealed his communications with Movant’s counsel 14 in Mauritius, the Court cannot conclude that there is a reasonable probability that the 15 obstruction of justice enhancement would not have applied. The fact remains that the 16 injunction was sought on Movant’s behalf through his counsel, and that Movant 17 ultimately was responsible for the injunction. 18 IV. Conclusion. 19 Counsel’s performance “falls within the wide range of reasonable professional 20 assistance,” Strickland, 466 U.S. at 689, and Movant has not shown that the result at trial 21 would have been different had counsel challenged the community standards instruction 22 for obscenity or disclosed his communications with Mauritius counsel. The Court will 23 accept the R&R on Movant’s ineffective assistance of counsel claims. 24 The R&R also recommended denying a certificate of appealability (“COA)” and 25 leave to appeal in forma pauperis because “Movant has not made a substantial showing 26 of the denial of a constitutional right.” Doc. 17, at 19. Movant has failed to establish that 27 a COA and leave to appeal in forma pauperis are warranted, and the Court therefore 28 adopts these recommendations. The Court also concludes that Movant has been - 15 - 1 sufficiently able to set forth his arguments, and that appointment of counsel is not 2 warranted. 3 IT IS ORDERED: 4 1. 5 6 7 8 9 The factual findings and conclusions in Judge Anderson’s R&R (Doc. 17) are accepted. 2. Jeffrey A. Kilbride’s petition to vacate, set aside, or correct sentence (Doc. 5) is denied. 3. A certificate of appealability and leave to proceed in forma pauperis on appeal are denied as stated above. 10 4. The Clerk shall terminate this action. 11 Dated this 28th day of June, 2012. 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 - 16 -

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