Zahran v. USA

Filing 2

ORDER Denying Petition to Vacate Pursuant to 28 U.S.C. § 2255 as to Saleh Mahmoud Zahran (1). Signed by Judge Dana M. Sabraw on 9/28/2017.(All non-registered users served via U.S. Mail Service)(mxn) Modified text on 9/28/2017 (mxn).

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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 Petitioner, 12 13 14 15 Case Nos. 07cr0332 DMS 09cr4126 DMS 16cv0753 DMS 16cv0755 DMS SALEH MAHMOUD ZAHRAN, v. ORDER DENYING MOTION PURSUANT TO 28 U.S.C. § 2255 UNITED STATES OF AMERICA, Respondent. 16 17 This case returns to the Court on Petitioner Saleh Mahmoud Zahran’s motion 18 to vacate or set aside his sentence pursuant to 28 U.S.C. § 2255. The Government 19 filed a response to the motion on September 23, 2016. Petitioner filed a reply to the 20 Government’s response on January 18, 2017. For the reasons set out below, the 21 motion is denied. 22 I. 23 BACKGROUND 24 On December 11, 2008, the Government filed First Superseding Indictment 25 against Petitioner Saleh Mahmoud Zahran alleging thirty-two criminal counts: one 26 count of conspiracy to defraud the United States with respect to claims, six counts 27 of false, fictitious, or fraudulent claims, six counts of 28 number obtained on false information, four counts of fraudulent use of the social –1– use of a social security 07cr0332 DMS 1 security number of another person, four counts of aggravated identity theft, three 2 counts of false statements, and eight counts of income tax evasion. On November 3 13, 2009, the Government filed another Indictment against Petitioner with two 4 counts of witness tampering. The Court consolidated the two cases on February 12, 5 2010, for purpose of trial. 6 The case proceeded to trial on February 22, 2010. The jury returned its verdict 7 on March 4, 2010. Petitioner was convicted on every count except the two counts 8 dismissed by the Government. 9 10 In July 2010, Jan Ronis was relieved as Petitioner’s counsel, and John Lanahan substituted in to represent Petitioner. 11 On April 12, 2011, the Court sentenced Petitioner to a prison term of 132 12 months with three years of supervised release. Petitioner is currently in federal 13 custody at Taft Correctional Institution and has been continuously incarcerated since 14 October 2009. 15 16 Petitioner appealed his conviction to the Ninth Circuit, which affirmed his conviction in an unpublished opinion. 17 II. 18 DISCUSSION 19 In the present motion, Petitioner argues he received ineffective assistance of 20 counsel in violation of the Sixth Amendment. An attorney’s representation violates 21 the Sixth Amendment right to counsel if two factors are met. See Strickland v. 22 Washington, 466 U.S. 668 (1984). First, the attorney’s representation must fall 23 below an objective standard of reasonableness. Id. at 688. Second, there must be 24 prejudice, i.e., a reasonable probability that but for counsel’s errors, the result of the 25 proceedings would have been different. Id. at 694. 26 Here, Petitioner argues his trial counsel Mr. Ronis was ineffective in (1) 27 failing to timely and accurately communicate plea offers from the Government; (2) 28 allowing a conflict of interest; and (3) failing to competently defend Petitioner at –2– 07cr0332 DMS 1 trial. Petitioner also argues his post-trial counsel Mr. Lanahan was ineffective in (4) 2 failing to prepare and prosecute the motion to reconsider the restitution order and (5) 3 failing to file a motion for new trial and a motion for acquittal on the ground of 4 ineffective assistance of trial counsel. 5 Strickland test. 6 A. None of these allegations satisfy the Ineffective Assistance of Trial Counsel 7 As stated above, Petitioner argues his trial counsel was ineffective in failing 8 to communicate plea offers, allowing a conflict of interest, and failing to 9 competently defend Petitioner at trial. These allegations are addressed below. 10 (1) Failing to Communicate the Plea Offers 11 Counsel’s failure to communicate an offer of a plea agreement to a client 12 constitutes unreasonable conduct under prevailing professional standards. United 13 States v. Blaylock, 20 F.3d 1458, 1465 (9th Cir. 1994). If there is a reasonable 14 probability that but for counsel’s failure of communication, the defendant would 15 have accepted the plea offer, this failure constitutes ineffective assistance of counsel. 16 Here, Petitioner suggests the Government made him two offers, one for 24 17 months and another for 57 months, and that his trial counsel failed to communicate 18 either of those offers to him. The Government denies the existence of a 24-month 19 plea offer and also disputes Petitioner’s assertion that Mr. Ronis failed to convey the 20 57-month offer.1 21 a. The 24-Month Offer. 22 Petitioner first alleges his trial counsel was ineffective for failing to convey 23 24 25 26 27 28 1 Petitioner requests an evidentiary hearing on this claim. An evidentiary hearing is required if the petitioner has (1) alleged specific facts in the motion, which if true, would entitle the petitioner to relief; (2) the petition, files, and records of the case do not conclusively show the petitioner is not entitled to relief. United States v. Howard, 381 F.3d 873, 877 (9th Cir. 2004). Here, Petitioner has alleged specific facts, which if true, would entitle him to relief. Specifically, he has alleged his attorney failed to communicate two plea offers to him, and that he would have accepted those offers if he would have known about them. However, for the reasons set out below, the record in this case conclusively shows Petitioner is not entitled to relief. Accordingly, his request for an evidentiary hearing is denied. –3– 07cr0332 DMS 1 an offer of 24 months. Specifically, Petitioner claims Gretchen Von Helms, who 2 represented Petitioner’s wife, told him there was a 24-month plea offer, and Mr. 3 Ronis failed to convey that offer to him. 4 As an initial matter, except for Petitioner’s self-serving allegations in his 5 motion that there was a 24-month offer, there is no credible evidence to support the 6 existence of such an offer. Indeed, all of the evidence refutes the existence of such 7 an offer. Toni Haas, the IRS Special Agent in charge of this case, states in a 8 declaration in support of the Government’s response to the present motion, “In all 9 of the discussions that Assistant U.S. Attorney Salel and I had with each other or 10 defense counsel to resolve the case against Zahran, there were never any discussions 11 of a plea offer of 24 months.” (Resp. to Mot., Ex. 1, (Decl. of Toni Haas ¶ 113).) 12 Mr. Ronis states, “The government never presented another plea offer that 13 recommended anything less than 57 months in custody for Zahran.” (Resp. to Mot., 14 Ex. 2, (Decl. of Jan Ronis ¶ 11).) Ms. Von Helms also states, “I never told Zahran 15 that the Government agreed to present a plea agreement with a recommendation of 16 24 months in custody.” (Resp. to Mot., Ex. 3, (Decl. of Gretchen Von Helms ¶ 13).) 17 Furthermore, it begs common sense that Petitioner, who was very involved in his 18 defense and his appeals, simply sat back and waited to hear from Mr. Ronis after 19 Ms. Von Helms notified him of the 24-month plea offer. See Shah v. United States, 20 878 F.2d 1156, 1159 (9th Cir.1989) (stating judge may use common sense in 21 deciding whether allegations of off the record events are credible). If Petitioner was 22 as interested in the alleged offer as he now claims to be, he should have contacted 23 Mr. Ronis himself to follow up, not simply waited to hear about the offer from Mr. 24 Ronis. It is also impossible to believe that Petitioner did not raise this issue at some 25 point during his lengthy court proceedings. See Watts v. United States, 841 F.2d 275 26 (9th Cir. 1988) (finding defendant’s allegation impossible in light of record). Similar 27 to the situation in Watts, Petitioner’s “earlier silence refutes his present allegations.” 28 Accordingly, this argument does not warrant granting the motion. –4– 07cr0332 DMS 1 b. The 57-Month Offer 2 Next, Petitioner asserts the Government offered him 57 months, but Mr. Ronis 3 failed to convey that offer. Unlike with the 24-month offer, the Government does 4 not dispute there was a 57-month offer in this case. However, it does dispute Mr. 5 Ronis failed to convey that offer to Petitioner. Specifically, Mr. Ronis states he 6 discussed this offer with Petitioner “on multiple occasions” and recommended 7 Petitioner accept this offer “because of the overwhelming amount of evidence,” but 8 Petitioner “repeatedly rejected the Government’s 57-month plea offer and told me 9 that he did not have anything to do with the fraud schemes.” (Resp. to Mot., Ex. 2, This testimony clearly refutes Petitioner’s allegation 10 (Decl. of Jan Ronis ¶ 11).) 11 that his trial counsel failed to convey this offer. Indeed, at various points in his 12 motion, Petitioner admits he was aware of this offer. (Mem. of P. & A. in Supp. of 13 Mot. at 16-17.) Furthermore, it begs common sense that Petitioner simply remained 14 silent on this issue through the court proceedings and after he retained a new post- 15 trial attorney, if he believed he missed the chance of accepting the plea offer due to 16 his trial counsel’s failure. Absent a showing that trial counsel failed to convey the 17 57-month offer, this allegation does not warrant any relief. 18 (2) Conflict of Interest 19 Petitioner argues Mr. Ronis provided ineffective assistance by representing 20 him despite having a conflict of interest. Specifically, Petitioner asserts Mr. Ronis 21 had a conflict because his wife Gretchen Von Helms represented Petitioner’s wife, 22 who was a co-defendant in this case. Mr. Ronis and Ms. Von Helms share the same 23 office space but have separate practices. The records show that Ms. Von Helms and 24 Mr. Ronis specially appeared for each other in this case. Petitioner argues it was 25 joint representation. He further claims Ms. Von Helms only negotiated a favorable 26 plea offer for his wife while his offer got revoked because of the conflict of interest. 27 First, there was no joint representation in this case. According to Federal Rule 28 of Criminal Procedure 44, joint representation occurs when two or more defendants –5– 07cr0332 DMS 1 who have been jointly charged are “represented by the same counsel, or counsel who 2 are associated in law practice.” Here, Mr. Ronis and Ms. Von Helms have separate 3 law practices. The fact that they share the same office space does not mean they are 4 associated in the practice. Furthermore, the special appearances that Ms. Von Helms 5 made for Mr. Ronis do not establish any attorney-client relationship between Ms. 6 Von Helms and Petitioner. Petitioner and his wife were separately represented by 7 Mr. Ronis and Ms. Von Helms, respectively. 8 Furthermore, there was no conflict of interest. In Willis v. United States, 614 9 F.2d 1200 (9th Cir. 1979), the court required “a factual showing on the record that a 10 conflict existed.” Id. at 1203. It also held “the trial court ‘must be able . . . to rely 11 upon counsel’s representation that the possibility of such a conflict does or does not 12 exist.’” Id. at 1206. In the present case, there was no factual showing on the record 13 to suggest an actual conflict existed. Both Mr. Ronis and Ms. Von Helms state they 14 attempted to resolve the case for their respective clients on favorable terms. (See 15 Resp. to Mot., Exs, 2-3, (Decl. of Jan Ronis ¶ 8), (Decl. of Gretchen Von Helms ¶ 16 9).) The fact that Ms. Von Helms was able to resolve the case for Petitioner’s wife 17 on favorable terms does not demonstrate there was a conflict of interest. 18 Accordingly, this claim is rejected. 19 (3) Competent Defense at Trial 20 Petitioner argues Mr. Ronis did not competently defend him at trial. First, 21 Petitioner claims Mr. Ronis failed to investigate and present the existence of 22 additional loans and expenses for the purpose of determining taxable income. 23 Petitioner argues Mr. Ronis should have called certain witnesses to testify and a 24 forensic accountant to prepare the record. Petitioner also submits credit card records, 25 bank records, tax return records, and self-prepared lists of income to support his 26 claim. Second, Petitioner claims Mr. Ronis failed to prove the false tax returns were 27 prepared by an alleged former partner “Jamil Malough.” Furthermore, Petitioner 28 claims Mr. Ronis failed to impeach the credibility of a key witness, Sal Silva, in the –6– 07cr0332 DMS 1 witness tampering charge. Petitioner argues Mr. Ronis should have called certain 2 witnesses to refute Mr. Silva’s testimony and present his history of making false 3 statements. 4 The Government states nearly all the financial records submitted by Petitioner 5 in the Exhibits are either already known to the IRS or not helpful in determining the 6 accurate taxable income. (See Resp. to Mot., Ex.1, (Decl. of Toni Haas at 1-11).) 7 The Government also provides Mr. Ronis’s declaration, within which he explains 8 the reasons why he decided not to retain a forensic accountant and not to subpoena 9 certain witnesses. (See Resp. to Mot., Ex.2, (Decl. of Jan Ronis at 5-8).) 10 The decision of whether to subpoena certain witnesses or experts “rests upon 11 the sound professional judgment of the trial lawyer,” Gustave v. United States, 627 12 F.2d 901, 904 (9th Cir. 1980), who can “formulate a strategy that was reasonable at 13 the time.” Harrington v. Richter, 562 U.S. 86, 107 (2011). Mr. Ronis’s failure to 14 have witnesses and a forensic accountant to prove alleged additional loans and 15 expenses does not amount to ineffective assistance of counsel. Petitioner failed to 16 show that Mr. Ronis’s decisions are below an objective standard of reasonableness. 17 Not to have a forensic accountant was not an unreasonable decision at the time after 18 Mr. Ronis considered the factors including the resources, the status of the record, 19 and the Government’s analysis of the record. (See Resp. to Mot., Ex.2, (Decl. of Jan 20 Ronis at 5-6).) It is also a reasonable strategy that Mr. Ronis chose not to subpoena 21 certain witnesses when these witnesses were not identified at the time and could 22 have been counterproductive by opening doors to negative areas. (Id. at 7.) 23 Moreover, Petitioner has failed to show prejudice. The Government 24 thoroughly considered the credit card records submitted by Petitioner in the Exhibits. 25 Extra tax return records and self-made lists have no value in assessing Petitioner’s 26 accurate taxable income. Therefore, Petitioner failed to prove a different tactical 27 decision would likely lead to another outcome. 28 Similarly, Mr. Ronis’s failure of proving the existence and wrongdoing of –7– 07cr0332 DMS 1 “Jamil Malough” does not constitute ineffective assistance of counsel. Mr. Ronis 2 states he did not subpoena “Jamil Malough” or any witness to prove the existence of 3 this person because he learned about this name for the first time at trial. (Id.) The 4 Court’s recollection also confirms this point. Moreover, Ms. Haas states Petitioner 5 never mentioned this person during the interviews in 2002 and 2004. (See Resp. to 6 Mot., Ex.1, (Decl. of Toni Haas at 33-34).) Ms. Haas further declares she has 7 searched but did not find any record relating to “Jamil Malough” in the IRS system 8 or in the evidence seized from the search of Petitioner’s business, residence, and 9 vehicles. (Id. at 34.) All of the evidence suggests there was simply no basis for Mr. 10 Ronis to defend Petitioner on this ground. 11 Likewise, Mr. Ronis was not ineffective in impeaching Mr. Silva’s credibility. 12 Mr. Ronis reasonably decided not to call witnesses who were either irrelevant to the 13 case or could be counterproductive. (See Resp. to Mot., Ex.2, (Decl. of Jan Ronis at 14 7-8).) Accordingly, this claim does not entitle Petitioner to any relief. 15 B. Ineffective Assistance of Post-Trial Counsel 16 (1) Motion to Reconsider Restitution Order 17 Petitioner claims his post-trial counsel Mr. Lanahan failed to prepare a motion 18 for reconsideration of the restitution order. However, here again, the records directly 19 contradict Petitioner’s allegation. On January 21, 2013, Mr. Lanahan filed the 20 Motion for Reconsideration of Court’s Summary Denial of Restitution Hearing and 21 Restitution Order of November 15, 2012, which resulted in a hearing on June 27, 22 2013. After the Court re-imposed restitution in the same amount, on March 12, 23 2014, Mr. Lanahan filed the Motion to Reconsider Order Affirming Restitution 24 Order and Respond to Set Restitution Schedule, which was denied by the court on 25 March 26, 2014. Mr. Lanahan further appealed the restitution order to the Ninth 26 Circuit, which was denied in an unpublished opinion. This record of motions and 27 appeal with extensive briefing from both sides refutes this claim. 28 /// –8– 07cr0332 DMS 1 (2) Motion for a New Trial and Motion for Acquittal 2 Finally, Petitioner argues Mr. Lanahan failed to file a motion for a new trial 3 and motion for acquittal to raise the issue of ineffective assistance of counsel and 4 submit the evidence that Mr. Ronis should have presented. However, as discussed 5 previously, Petitioner has not shown Mr. Ronis was ineffective in failing to present 6 such evidence. Therefore, even if Mr. Lanahan filed the motions with the evidence, 7 there is not a reasonable probability that the result of the proceedings would have 8 been different. Petitioner fails to show prejudice caused by Mr. Lanahan’s failure 9 to file a motion for a new trial and motion for acquittal. 10 III. 11 CONCLUSION 12 13 14 15 For these reasons, the Court denies Petitioner’s motion to vacate or set aside his sentence pursuant to 28 U.S.C. § 2255. IT IS SO ORDERED. Dated: September 28, 2017 16 17 18 19 20 21 22 23 24 25 26 27 28 –9– 07cr0332 DMS

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