Nathaniel Newhouse v. United States of America

Filing 22

ORDER DENYING DEFENDANTS SECTION 2255 MOTION 10 by Judge Dean D. Pregerson (Made JS-6. Case Terminated.) (lc)

1
2

O

3
4
5
6
7
8

UNITED STATES DISTRICT COURT

9

CENTRAL DISTRICT OF CALIFORNIA

10
11

UNITED STATES OF AMERICA,

12

Plaintiff,

13

v.

14

NATHANIEL NEWHOUSE,

15

Defendants.
___________________________

)
)
)
)
)
)
)
)
)
)

Case No. CV 13-02531 DDP
[CR 08-01147 DDP]
ORDER DENYING SECTION 2255 MOTION

16
17

Presently before the court is Defendant/Petitioner Nathaniel

18

Newhouse’s Motion to Vacate, Set Aside, or Correct Sentence

19

pursuant to 28 U.S.C. § 2255.

20

the parties, the court denies the motion and adopts the following

21

Order.

22

I.

23

Having considered the submissions of

Background
After a jury trial, Defendant was convicted of three counts of

24

possession with the intent to distribute controlled substances.

25

(Dkt. 197.)1

26

imprisonment and three years of supervised release.

27

Ninth Circuit affirmed Defendant’s conviction and the district

The court sentenced Defendant to 96 months
(Id.)

The

28
1

“Dkt.” refers to the docket in the underlying criminal case,
No. CR 08-1147-DDP.

1

court’s denial of Defendant’s motion to suppress evidence.

2

States v. Newhouse, 464 Fed. Appx. 181 (9th Cir. 2012).

3

that officers had probable cause to arrest Defendant, the court

4

provided the following background:

5

United

In holding

Newhouse was arrested following DEA agents' surveillance
of a pharmacy where pharmacists had alerted the DEA to an
unusual number of prescriptions for oxycodone filled by
patients associated with Dr. Efrain Sanchez. Agents
observed three persons each fill two prescriptions for
popular street drugs containing oxycodone and hydrocodone
prescribed by Dr. Sanchez, and depart together with a
fourth person who did not fill any prescriptions. At
least one of the individuals appeared to have multiple,
additional prescriptions in his possession. Agents
followed the individuals to the parking lot of a donut
shop fourteen miles away where, one hour later, they
observed a rendezvous with two other vehicles. The
individual who did not fill any prescriptions delivered a
white paper bag that appeared to be a pharmacy bag to Mr.
Newhouse.

6
7
8
9
10
11
12
13
Id.
14

Defendant now moves for a new trial or, in the alternative, a
15
reduction in sentence to 48 months.

Defendant argues that relief

16
is warranted because he received ineffective assistance of counsel.
17
Specifically, Defendant contends that counsel was ineffective
18
because he (1) failed to obtain surveillance video from the donut
19
shop, (2) convinced Defendant to waive his right to testify, and
20
(3) failed to adequately prepare for trial.2
21
II.

Legal Standard

22
Section 2255 allows federal prisoners to file motions to
23
vacate, set aside, or correct a sentence on the ground that “the
24
sentence was imposed in violation of the Constitution or laws of
25
26
2

27
28

Defendant’s Fourth Ground for relief is that counsel should
have introduced the donut shop surveillance video to impeach an
arresting agent’s testimony. This claim overlaps with Defendant’s
First claim for relief.
2

1

the United States, or that the court was without jurisdiction to

2

impose such sentence, or that the sentence was in excess of the

3

maximum authorized by law, or is otherwise subject to collateral

4

attack[.]”

5

counsel, a defendant must demonstrate (1) that counsel’s

6

performance was deficient and fell below an objective standard of

7

reasonableness, meaning “counsel made errors so serious that

8

counsel was not functioning as the ‘counsel’ guaranteed the

9

defendant by the Sixth Amendment,” and (2) the defendant was

28 U.S.C. § 2255(a).

To show ineffective assistance of

10

prejudiced as a result and deprived of a fair trial.

11

Washington, 466 U.S. 668, 687 (1984).

12

Strickland v.

III. Discussion

13

A.

14

Defendant argues that government agents falsely testified as

Counsel’s Failure to Obtain Surveillance Footage

15

to what they observed in the donut shop parking lot.

16

contends that the donut shop’s surveillance camera footage would

17

have established that the agents did not have probable cause to

18

arrest Defendant.

19

obtain the footage, and that, had counsel introduced the footage,

20

“the result of the district court’s motion to suppress and trial

21

would have been different.”3

22

Defendant

He further asserts that he asked his counsel to

Defendant’s argument does not satisfy either prong of the

23

Strickland test.

“[C]ounsel has a duty to make reasonable

24

investigations or to make a reasonable decision that makes

25

particular investigations unnecessary.

In any ineffectiveness

26
3

27
28

Although the government’s opposition makes repeated
reference to the declaration of Defendant’s counsel, the
government’s citation to the docket is incorrect, and the
declaration does not appear to have been filed elsewhere.
3

1

case, a particular decision not to investigate must be directly

2

assessed for reasonableness in all the circumstances, applying a

3

heavy measure of deference to counsel’s judgments.”

4

466 U.S. at 691.

5

evidence already known to counsel and to “whether the known

6

evidence would lead a reasonable attorney to investigate further.”

7

Wiggins v. Smith, 539 U.S. 510, 527 (2003).

8
9

Strickland,

The court’s assessment must look to both the

Here, as an initial matter, is not clear whether the
surveillance footage to which Defendant refers exists.

Even

10

assuming that it does, and that Defendant did ask his counsel to

11

obtain it, counsel’s failure to do so was not unreasonable.

12

Defendant argues that the footage would have revealed what really

13

happened in the donut shop parking lot.

14

agreed to meet Leslie Wilson at the donut shop parking lot to give

15

his opinion regarding the authenticity of several prescriptions

16

others had had filled.

17

Defendant also asked his wife to meet him at the donut shop to

18

deliver money to him.

19

shop an hour later, Wilson’s car was already there.

20

Defendant’s wife arrived a few minutes later.

21

entered Defendant’s car with a bag of medication, then returned to

22

her car.

23

retrieve the money he had asked her to bring.

24

(Id.)

According to Defendant, he

(Declaration in Support of Motion at 1.)

(Id.)

When Defendant arrived at the donut

(Id.)

(Id. at 2.)
Wilson

Defendant then walked to his wife’s car to
(Id.)

Defendant’s version of these events does not differ from the

25

version elicited through testimony at trial.

Indeed, the Ninth

26

Circuit’s recitation of the facts of the case is consistent with

27

Defendant’s version.

28

events in the parking lot did exist, and assuming Defendant did ask

Thus, even if surveillance footage of the

4

1

counsel to obtain it, it would not have been unreasonable for

2

counsel to conclude that the footage was not necessary, as it would

3

not have added anything to the evidence already known to counsel.

4

Even if counsel had unreasonably failed to investigate the

5

camera footage, Defendant cannot show that he was prejudiced as a

6

result.

7

consistent with the trial testimony, as recounted by the Ninth

8

Circuit.

9

officers did have probable cause to arrest Defendant and that the

As discussed above, Defendant’s version of events is

The Ninth Circuit concluded, based upon those facts, that

10

district court properly denied Defendant’s motion to suppress.

11

Defendant cannot show, therefore, that the outcome of the

12

suppression motion would have been different if camera footage

13

depicting those same facts had been introduced.

14

Nor can Defendant show that the absence of camera footage

15

prejudiced him at trial.

With respect to this argument, Defendant

16

contends that the video would have shown that, contrary to the

17

agents’ testimony, he did not approach the rear of his own car at

18

any time, he had not started his car when agents pulled into the

19

parking lot and blocked his car with their own vehicle, and he did

20

not have any pill bottles in his pockets or in his glove

21

compartment.

22

facts would have resulted in acquittal.

23

was running or not and whether or not he approached his trunk

24

immediately prior to his arrest were not central issues in the

25

case.

26

of the substances at issue.

27

were in a pharmacy bag on top of the car, and not on his person or

28

in his glove compartment, while the third, consistent with agents’

(Decl. at 2-3.)

It is unlikely that any of these
Whether Defendant’s car

Nor is there any dispute that Defendant possessed all three
Defendant argues that two of the drugs

5

1

testimony, was found in his trunk.

2

camera footage would only have confirmed that Defendant possessed

3

the drugs.

4

(Decl. ¶¶ 2(g), 5.)

Thus, the

Even if the camera footage would have called into question the

5

entirety of the arresting agents’ testimony, the government

6

introduced other compelling evidence of Defendant’s guilt.

7

different witnesses testified that they entered into a scheme with

8

Defendant and others to obtain monthly painkiller prescriptions

9

from unethical doctors and then pass those prescriptions on to

Two

10

Defendant in exchange for cash.

(CR 222, 135-149; 187-194.)

11

witness also testified that he saw bags of medication inside the

12

trunk of Defendant’s car “and people [Defendant] was doing business

13

with.

14

testimony aligned closely with later testimony from a government

15

expert about illegal prescription drug distribution schemes in

16

general.

17

highly unlikely that anything the surveillance camera footage of

18

the arrest might have shown would have changed the jury’s decision

19

to convict Defendant.

It is like a circus out there.”

(Id. at 251-269.)

One

(Id. at 151, 169-70.

This

In light of this evidence, it is

20

B.

21

Next, Defendant asserts that counsel convinced him to waive

Waiver of Right to Testify

22

his right to testify in exchange for the government’s agreement not

23

to introduce evidence of controlled substances discovered at

24

Defendant’s home and storage locker.

25

advice was “faulty” because “the medication was being temporarily

26

stored to facilitate [Defendant’s] and another person’s caretaker

27

responsibilities.”

28

advised,” he would have testified on his own behalf, as “the

Defendant argues that this

Defendant argues that, had he been “correctly

6

1

contents of all the bottles were later dumped into a plastic bag

2

and shown to the jurors at trial.”

(Decl. ¶ 7.)

3

The agreement to which Defendant refers was disclosed to the

4

court prior to trial, both in writing and at a pre-trial hearing.

5

(Dkt. 136 at 1; Dkt. 214 at 6.)

6

would “not present or rely on [evidence seized from Defendant’s

7

home or from his storage locker] at trial, conditioned on defendant

8

Newhouse not opening the door to admission of such evidence . . .

9

.”

(Dkt. 136 at 1:21-23.)

The government agreed that it

Thus, contrary to Defendant’s argument,

10

it does not appear that the parties ever reached an agreement that

11

would have required Defendant to waive his right to testify.4

12

Further, it is unclear from the record and the submissions of the

13

parties whether the plastic bag shown to jurors at trial contained

14

pill bottles seized from Defendant’s car or from his home and

15

storage locker.

16

Regardless, Defendant cannot satisfy the second, prejudice

17

prong of Strickland.

18

strong evidence of Defendant’s guilt.

19

clear that, in the absence of counsel’s alleged advice, Defendant

20

would have testified in his own defense.

21

a great deal of impeachment evidence, including evidence of money

22

laundering and tax fraud and, at the very least, Defendant’s prior

23

convictions for perjury and welfare fraud.

24

Defendant had testified, the testimony he now claims he would have

25

given would not have helped his case.

As described above, the government presented
Furthermore, it is far from

The government possessed

(Dkt. 117.)

Even if

Defendant criticizes

26
27
28

4

Although the government represents that counsel has declared
that he never advised Defendant otherwise, the court has been
unable to locate counsel’s declaration in the record.
7

1

counsel’s recommendation as faulty because “the medication was

2

being temporarily stored to facilitate [Defendant’s] and another

3

person’s caretaker responsibilities.”

4

a motion in limine precluding this very argument.

5

the government contended, even if Defendant had been storing and

6

distributing medication purely in his capacity as a caretaker, that

7

would not have been a defense to the charges against him, absent

8

authorization from the Attorney General to distribute controlled

9

substances.

(Dkt. 113 at 4-6.)

The court, however, granted
(Dkt. 137.)

As

There is no dispute that Defendant

10

had no such authorization.

Thus, even if Defendant testified, his

11

testimony would have been, at best, irrelevant, even if allowed.

12

Defendant could not, therefore, have been prejudiced by counsel’s

13

recommendation that he not testify.

14

C.

Counsel’s Preparation for Trial

15

Lastly, Defendant argues that counsel “stated on the record

16

that he was not adequate[ly] prepared for trial.”

17

does not appear on the page of the transcript Defendant has

18

identified, or anywhere else in the document to which Defendant

19

cites.

20

unprepared for trial.5

21

trial representation and performance during trial itself does not

22

reflect any lack of preparation on counsel’s part.

23

Defendant state what counsel should have done differently to

24

prepare for trial or failed to do in advance of trial.

25

deficiency Defendant alleges is counsel’s failure to contact co-

26

Defendant Deborah Barker.

The government represents that counsel has denied being
The court’s own review of counsel’s pre-

5

Nor does

The only

Defendant does not explain how Barker’s

27
28

That statement

(See notes 3 and 4, supra.)
8

1

testimony would have aided him and, in any event, Barker died over

2

a year before Defendant’s trial began.

3

not satisfied either of the Strickland prongs with respect to

4

counsel’s preparation for trial.

5

IV.

6
7

(Dkt. 198.)

Defendant has

Conclusion
For the reasons stated above, Defendant’s Section 2255 motion

is DENIED.

8
9

IT IS SO ORDERED.

10
11

Dated: October 6, 2016
DEAN D. PREGERSON
United States District Judge

12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
9