Naha v. USA

Filing 20

ORDER accordingly, the court DENIES the remaining portion of Movant's Motion to Vacate, Set Aside, or Correct Sentence pursuant to 28:2255 62 (filed in CR 99-206-PCT-RCB-LOA). Having resolved all aspects of Movant's Motion to Vacate, Set Aside, or Correct Sentence pursuant to 28:2255 62 (filed in CR 99-206-PCT-RCB-LOA) against movant and in favor of the United States of America, the court hereby directs the Clerk of the Court to enter Judgment in favor of the United States of America and to terminate this case. Signed by Judge Robert C Broomfield on 3/12/09. (TLJ)

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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF ARIZONA

UNITED STATES OF AMERICA Plaintiff/Respondent, vs. GERALD D. NAHA, SR., Defendant/Movant.

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No. CR 99-206 PCT RCB (LOA) CIV 04-977 PCT RCB ORDER

This court previously ruled on a myriad of motions by movant Gerald D. Naha, Sr. One narrow issue remained unresolved, however.

The court "took under advisement pending further discovery[,]" as specified by the court, movant's ineffective assistance of counsel claim, but only to the extent that claim "relat[ed] to counsel's alleged impairment of Movant's right to a public trial through the exclusion of his aunts from the courtroom[.]" United States v.

Naha, 2007 WL 91614, at *15 (D.Ariz. Jan. 11, 2007) Discovery in accordance with the court's orders is now complete. No party "petition[ed] the Court for leave to file any

28 supplemental briefing[]" upon the conclusion of that discovery.

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United States v. Naha, 2007 WL 91615, at *2 (D.Ariz. Jan. 11, 2007). Thus, in accordance with that order, "the Court will only

look to the currently filed briefing on Movant's § 2255 motion and the filed records of any depositions taken pursuant to this order." Id. Background As the parties are well aware, the court found "good cause to allow limited discovery into" movant's ineffective assistance of counsel. Id. at *1. "[N]ot[ing] the open questions regarding (1)

the truth of Movant's allegation that his counsel had instructed his aunts not to enter the courtroom during his trial and (2) whether Movant's aunts were prospective witnesses to whom the Court's sequestration order under Rule 6151 of the Federal Rules of Evidence would have applied at trial[,]" the court instructed the parties to proceed with written questions pertaining to those issues. Id. (citation omitted and footnote added).

Among other questions, movant's former counsel, Robert

18 McWhirter, was asked, whether he "specifically advise[d] either 19 Patricia Walker or Bernadine Pusher [movant's aunts] that they were 20 excluded from the courtroom[.]" Transcript of McWhirter Dep'n (doc. 21 17) at 4:6-8. Mr. McWhirter unequivocally responded: "I did not Id. at

22 advise them that they were excluded from the courtroom." 23 4:9-10.

In a similar vein, when asked whether he "direct[ed]

24 [movant's mother] to exclude any family members from the 25 courtroom[,]" Mr. McWhirter answered, "No, I did not." 26 27 28
That Rule provides in relevant part that "[a]t the request of a party the court shall order witnesses excluded so that they cannot hear the testimony of other witnesses, and it may make the order on its own motion." Fed. R. Civ. 615.
1

Id. at

-2-

1 4:11-13.

Further, in response to whether he had "any reason to

2 exclude" movant's aunts from the courtroom, Mr. McWhirter replied 3 simply, "No." 4 Id. at 4:14-16.

In contrast, Mr. McWhirter testified that he did specifically

5 "advise" movant's mother "that she could not be present in the 6 courtroom during the trial[]" because she "was considered a 7 potential witness based on allegations that she improperly 8 contacted the victim and her mother at the request of defendant[.]" 9 Id. at 4:3 and 3:21-23. For that reason, movant's mother was In fact, Mr.

10 "excludable under Rule 615[.]" Id. at 3:23-24.

11 McWhirter testified that on the eve of trial he had a discussion 12 with the prosecutor regarding excluding movant's mother from the 13 courtroom on that basis. 14 See id. at 3:19-4:1.

Additionally, Mr. McWhirter testified that when movant asked

15 him why "these family members were not in the courtroom[,]" he 16 "explained . . . why [movant's] mother was excluded from the 17 courtroom under Rule 615." Id. at 4:21-22. As to the aunts, it is

18 Mr. McWhirter's "recollection" that "they simply left and walked 19 out of the courtroom with Mr. Naha's mother." Id. at 4:23-24. Mr.

20 McWhirter "never told them to leave the courtoom[,] and he 21 "explained that to Mr. Naha." 22 Id. at 4:24-25.

Finally, when queried as to why exclusion of the family

23 members was "never raised with [the] trial court or on direct 24 appeal[,]" Mr. McWhirter testified that he "did not see that" 25 raising that issue "would provide any legal benefit to Mr. Naha." 26 Id. at 5:1-5. Turning to the issue of whether Mr. Naha was "denied

27 a public trial[,]" Mr. McWhirter succinctly stated that Mr. Naha 28 "was not denied a public trial[;] [i]t was just his mother was -3-

1 asked to leave the courtroom because she was a potential witness." 2 Id. at 5:6-8. 3 4 Discussion With the advantage of a fully developed record, the court is

5 persuaded that there is absolutely no basis for movant's claim of 6 ineffective assistance of counsel due to the alleged exclusion of 7 his aunts from the courtroom. Mr. McWhirter's testimony flatly

8 contradicts movant's supposition that Mr. McWhirter instructed 9 movant's aunts to leave the courtroom. As Mr. McWhirter's

10 testimony shows, the only person he instructed to leave the 11 courtroom was movant's mother. Moreover, in accordance with Fed.

12 R. Evid. 615, Mr. McWhirter had a sound legal basis for excluding 13 her. Not only that, it is entirely plausible that movant's aunts

14 would have left the courtroom with his mother, as Mr. McWhirter 15 testified, to support her while she waited to be called as a 16 witness. Thus, the additional discovery which the court previously

17 allowed does not provide any factual basis for movant's ineffective 18 assistance of counsel claim based upon the alleged exclusion of his 19 aunts from the courtroom. Accordingly, the court DENIES the

20 remaining portion of Movant's Motion to Vacate, Set Aside, or 21 Correct Sentence pursuant to 28 U.S.C. § 2255 (doc. 62), which it 22 had previously taken under advisement. 23 Having resolved all aspects of Movant's Motion to Vacate, Set

24 Aside, or Correct Sentence pursuant to 28 U.S.C. § 2255 (doc. 62) 25 against movant and in favor of the United States of America, the 26 court hereby directs the Clerk of the Court to enter JUDGMENT in 27 . . . 28 -4-

1 favor of the United States of America and to terminate this case. 2 3 4 5 6 7 8 9 10 11 12 Copies to counsel of record and defendant/movant pro se 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 -5DATED this 12th day of March, 2009.