Shin v. United States of America

Filing 33

ORDER DENYING DEFENDANT'S PETITION FOR WRIT OF ERROR CORAM NOBIS, AND INVITING SUPPLEMENTATION OF ALTERNATIVE PETITION FOR WRIT OF AUDITA QUERELA re 1 - Signed by JUDGE SUSAN OKI MOLLWAY on 9/1/2016. (CR 04-00150 SOM; CV 15-00377 SOM-RLP) "This court defers ruling on Shin's petition for writ of audita querela until Shin has filed an optional supplemental memorandum in support of the petition by September 15, 2016, or the deadline has passed without such a filing. If Shin files an optional memorandum, the Government may respond no later than September 29, 2016, in a memorandum of no more than 3,000 words. If this court does not receive a memorandum from Shin by the deadline, i t will enter judgment against Shin in this action." (emt, )CERTIFICATE OF SERVICEParticipants registered to receive electronic notifications received this document electronically at the e-mail address listed on the Notice of Electronic Filing (NEF). Participants not registered to receive electronic notifications were served by first class mail on the date of this docket entry

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF HAWAII
PATRICK SHIN,
Petitioner,
vs.
UNITED STATES OF AMERICA,
Respondent.

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CRIM. NO. 04-00150 SOM
CIV. NO. 15-00377 SOM-RLP

ORDER DENYING DEFENDANT’S
PETITION FOR WRIT OF ERROR
CORAM NOBIS, AND INVITING
SUPPLEMENTATION OF
ALTERNATIVE PETITION FOR WRIT
OF AUDITA QUERELA

ORDER DENYING DEFENDANT’S PETITION FOR WRIT OF ERROR
CORAM NOBIS, AND INVITING SUPPLEMENTATION OF ALTERNATIVE PETITION
FOR WRIT OF AUDITA QUERELA
I.

INTRODUCTION.
Defendant Patrick Shin pled guilty with a plea

agreement to having made a false statement to the Government in
violation of 18 U.S.C. § 1001.

He was sentenced in 2006 to three

years of probation and a fine.

Shin now seeks to vacate his

conviction more than nine years after judgment was entered.
Having long since paid his fine and completed his term of
probation, he seeks a common law writ of coram nobis or audita
querela.
In his Verified Petition for Writ of Error Coram Nobis,
or Alternatively, for Writ of Audita Querela, Shin argues that he
has recently discovered exculpatory evidence that the Government
should have disclosed to him before he entered his guilty plea.
Specifically, Shin contends that, because the Government

wrongfully withheld evidence that a Department of the Navy
engineer involved in the contracting process could not have
testified as to an essential element of the false statement
charge, his conviction should be vacated.
This court denies Shin’s petition for a writ of coram
nobis.

The court defers ruling on his petition for a writ of

audita querela, giving him an opportunity to submit an optional
supplemental memorandum regarding this alternative writ.
II.

BACKGROUND.
At all times material to the conviction, Shin was

authorized to act as an agent on behalf of JHL Construction,
Inc., a general contracting company owned by Shin’s nephew, James
Lee.

See ECF No. 91 in Crim. No. 04-00150 SOM, PageID # 248.
In 2003, JHL was awarded a job order contract (“JOC”)

by the Navy.

JOCs are based on pre-priced construction tasks.

The prices typically come from a unit price book.

See id.

The

Navy’s unit price books list average costs that might be higher
or lower than the actual costs in a particular local economy.
See id., PageID # 250.

Using the unit prices relied on by a

customer such as the Navy, a contractor proposes an appropriate
coefficient to apply to the unit prices in order to cover
overhead and profit, thereby arriving at the contract cost.

See

id., PageID #s 250-51.
JHL anticipated that the unit prices would exceed JHL’s

2

actual costs.

See id., PageID #s 253-54.

Because JHL would make

a profit without adding any coefficient, JHL proposed a 0%
coefficient and was awarded a zero coefficient contract.

See

id., PageID #s 249-54.
Once awarded to a contractor, a JOC allows an agency to
approach and negotiate with the contractor directly, as
construction needs come up.

See id.

In August 2003, the Navy

asked JHL to provide a proposal under the JOC for the overhaul of
Pump # 2, Drydock # 4, at Pearl Harbor Naval Shipyard.
PageID #s 253-54.

See id.,

The Navy was under pressure to award a number

of work orders by the end of the Government’s fiscal year
(September 30, 2003), and assigning the Pump # 2 project to JHL’s
JOC was seen as a quick way to use current year funding.

See id.

JHL provided a proposal for $2,360,153, which was
forwarded to the Navy’s Engineering Department for a technical
review of the costs.

See id., PageID # 272.

Wesley Choy, a

mechanical engineer with the Navy’s Engineering Department,
questioned the costs, which he viewed as high.
#s 259-60.

See id., PageID

The costs were not broken down, and he could not tell

how the final number had been reached.

See id.

Choy asked the

contract administrator, Annette Ching, to get subcontractor
quotes from JHL to substantiate JHL’s cost proposal.

See id.

On August 26, 2003, JHL submitted a second proposal for
the reduced amount of $2,205,138.

3

See id., PageID # 272.

The

second proposal did not include either a line item breakdown of
costs or the requested subcontractor quotes.

Choy asked Shin for

the subcontractor quotes from the two proposed subcontractors,
HSI Electric, Inc., and Alfred Conhagen, Inc.

See id.

On September 4, 2003, Shin called HSI and asked it to
increase its quote by $100,000, but to invoice JHL the original
amount without the $100,000 markup.

See ECF No. 64, ¶ 15.

contacted the FBI to inform it of Shin’s request.

HSI

See ECF No.

91, PageID # 264.
As directed by the FBI, HSI then gave Shin the
requested quote with the inflated price.

See id., PageID # 265.

However, instead of submitting this quote to the Navy, Shin
submitted HSI’s quote from July 10, 2003, which concerned work on
Pump # 1.

See ECF No. 64, ¶ 17.

Shin used white-out to alter

the $114,733 price on the July 2003 quote to $314,733.

See id.

On September 4, 2003, Shin asked Conhagen to increase
its quote by $180,000, bringing Conhagen’s subcontract amount
from $377,260 to $557,260.

Conhagen provided Shin with the

requested quote for $557,260.

See id., ¶ 18.

On September 8, 2003, Shin met with Choy and Ching to
give them the altered HSI and Conhagen quotes.

Shin ultimately

submitted JHL’s best and final offer of $2,150,000.

See ECF No.

91, PageID # 270.
On September 23, 2003, federal agents executed a search

4

warrant at Shin’s business office.

See id., PageID # 266.

Shin

confessed at that time to having submitted altered and inflated
figures for the Pump # 2 job, explaining that the real
subcontractor quotes would not have supported JHL’s cost proposal
and would have caused the Navy to question the legitimacy of the
proposal.

See ECF No. 64, ¶ 20.

He said that, while Conhagen

had provided an inflated quote as he had requested, HSI’s failure
to do so right away had caused him to doctor HSI’s quote from a
previous job.

See id.

The Pump # 2 project did not involve pre-priced tasks
listed in the Navy’s unit book.

For that reason, performing work

on Pump # 2 under JHL’s zero coefficient JOC did not allow JHL to
recover any overhead or profit.

Shin said the inflated

subcontractor quotes were his way of recovering overhead and
profit.

See id.
The Government charged Shin with having made a false

statement to the Government.

On April 21, 2004, pursuant to a

memorandum of plea agreement, Shin pled guilty to that charge.
See ECF No. 8.

On March 8, 2006, Shin was sentenced to three

years of probation, with twelve days of intermittent confinement,
and a fine of $100,000.

See ECF No. 99.

During sentencing proceedings, Shin argued that the
Pump # 2 job was not pre-priced and therefore had been improperly
assigned under JHL’s zero coefficient JOC, depriving JHL of a

5

chance to recover overhead and profit.
67.

See id., PageID #s 263-

Shin contended that he had altered the subcontractor quotes

only to recover a reasonable profit on the job.
# 265.

He denied any malicious intent, but acknowledged that the

way he had handled the situation was wrong.
298.

See id., PageID

See id., PageID #

This court determined that “there was clearly an intent to

deceive,”

and called the offense a “dishonesty kind[] of

crime[],” see id., PageID # 294, but imposed a sentence that
reflected the court’s determination that the Government had
failed to prove that Shin had intended to cause a loss.

See id.,

PageID # 278.
Afer he was sentenced, Shin reached out to Choy several
times to talk about Choy’s role in the prosecution and to ask him
for a written statement.

See id., PageID # 271.

Choy originally

said that Government lawyers had told him not to provide any such
written statement without approval from the U.S. Attorney’s
Office.

See id., PageID #s 271-72.

Eventually, in approximately

April 2014, Choy provided a typed, unsigned “clarification”
statement regarding his role in the contracting process.

See

id., PageID # 272.
Choy’s “clarification” statement includes the following
points:

1) he recalled having stated at a meeting with Shin in

2003 that he understood that Shin needed to “roll” overhead and
profit into the line items, given the zero coefficient contract,

6

but that that was a contractual rather than technical issue; 2)
imposing a zero coefficient contract on JHL was not fair or
reasonable; 3) Choy was surprised to hear that the project had a
zero coefficient; and 4) Choy had turned the issue over to the
contracting officer as the person authorized to resolve the
matter.

See ECF No. 91-2.
In May 2015, Shin spoke with Choy regarding Choy’s

communications with “the Prosecutor and the Prosecutor’s
investigators.”

See ECF No. 91, PageID # 276.

Choy, Shin tape recorded the conversation.

Without telling

See ECF No. 102-3.

When Shin asked Choy whether he had communicated to the
Government personnel any of the points made in his April 2014
“clarification” statement, Choy allegedly stated that he had told
the prosecutor and the prosecutor’s investigators that he did not
have the authority to decide whether JHL needed to be awarded
extra money in the zero coefficient contract to cover its
legitimate and reasonable overhead and profit.
PageID #s 277-78.

See ECF No. 91,

Choy also allegedly told Shin:

1) the

prosecuting authorities “point[ed] the gun” on him regarding his
authority to decide the zero coefficient issue; 2) the
prosecuting authorities “hid” the fact that Choy was not
authorized to deal with the zero coefficient issue; 3) the
prosecuting authorities only “hear what they want to hear . . .
to make their case”; and 4) the declaration that the prosecuting

7

authorities had Choy sign was “sneaky” and “twist[ed]” the facts
he had given them.

See id.

On September 22, 2015, Shin moved for a writ of coram
nobis or, in the alternative, audita querela.

The motion sought

(1) the vacating of Shin’s federal criminal conviction on one
count of False Statement pursuant to 18 U.S.C. § 1001(a)(3); and
(2) leave to withdraw his prior guilty plea in this case.

See

id., PageID # 243.
Shin filed a motion for leave to depose Choy and Ching.
See ECF No. 105.

This court denied Shin’s discovery request to

the extent it supported his petition for a writ of coram nobis,
but noted that it was premature for Shin to seek discovery in aid
of a writ of audita querela because a writ of audita querela is a
remedy of last resort and his request for a writ of coram nobis
was still pending.

See ECF No. 117, PageID #s 600-01.

This

court thus deferred any ruling on Shin’s discovery request
insofar as it was brought in aid of obtaining a writ of audita
querela.

See id.

III.

ANALYSIS.
A.

Writ of Coram Nobis.

The 1946 amendments to Federal Rule of Civil Procedure
60(b) expressly abolished several common law writs, including the
writ of coram nobis.

In United States v. Morgan, 346 U.S. 502

(1954), the Supreme Court held that district courts still retain

8

limited authority to issue common law writs such as writs of
coram nobis and audita querela in collateral criminal
proceedings.
These common law writs survive “only to the extent that
they fill ‘gaps’ in the current systems of postconviction
relief.”

United States v. Valdez-Pacheco, 237 F.3d 1077, 1079

(9th Cir. 2001).

Such writs are not available when the claims

raised would be cognizable in petitions under 28 U.S.C. § 2255.
A writ of coram nobis is “a highly unusual remedy,
available only to correct grave injustices in a narrow range of
cases where no more conventional remedy is applicable.”
States v. Riedl, 496 F.3d 1003, 1005 (9th Cir. 2007).

United
It is

distinguishable from a habeas petition, which is available only
when convicted defendants are in “custody.”

See Hensley v.

Municipal Court, 411 U.S. 345, 349 (1973); Jones v. Cunningham,
371 U.S. 236, 243 (1963).

A writ of coram nobis allows a

petitioner to attack a conviction when the petitioner has already
finished his sentence and is no longer in custody.

See McKinney

v. United States, 71 F.3d 779, 781 (9th Cir. 1995) (citing
Telink, Inc. v. United States, 24 F.3d 42, 45 (9th Cir. 1994)).
To qualify for coram nobis relief, a petitioner must
establish all of the following:

(1) a more usual remedy is not

available; (2) valid reasons exist for not having attacked the
conviction earlier; (3) there are adverse consequences from the

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conviction sufficient to satisfy the case or controversy
requirement of Article III; and (4) the error is of the most
fundamental character.

Hirabayashi v. United States, 828 F.2d

591, 604 (9th Cir. 1987).

“Because these requirements are

conjunctive, failure to meet any one of them is fatal.”
Matus-Leva v. United States, 287 F.3d 758, 760 (9th Cir. 2002)
(citing United States v. McClelland, 941 F.2d 999, 1002 (9th Cir.
1991)).
Shin satisfies three of the four requirements for the
issuance of a writ of coram nobis.1
First, a more usual remedy is not available here.
Hirabayashi, 828 F.2d at 604.

Shin has completed his sentence

and cannot seek relief under § 2255.

See 28 U.S.C. § 2255

(providing that a “prisoner in custody . . . may move the court
which imposed the sentence to vacate, set aside or correct the
sentence” (emphasis added)).
Second, Shin has suffered reputational, professional,
and social consequences as a result of his criminal conviction.
See ECF No. 91, PageID # 285.

He states in his verified petition

1

Shin’s plea agreement included a waiver of his right to
collaterally attack his sentence except when the attack is based
on a claim of ineffective assistance or any upward departure by
the court. See ECF No. 8. Although Shin’s petition for a writ
of coram nobis is a type of collateral attack, it does not
challenge the sentence. Instead, Shin attacks the underlying
conviction, which the Government concedes was not covered by the
appeal waiver. See ECF No. 100, PageID # 402.
10

that he has lost business opportunities because of his conviction
and that newspaper articles published as recently as August 2015
continue to refer to his felony conviction.
297.

See id., PageID #

The Ninth Circuit has “repeatedly reaffirmed the

presumption that collateral consequences flow from any criminal
conviction.”

Hirabayashi, 828 F.2d at 606.

Third, Shin has valid reasons for not having attacked
his conviction earlier.

Although a petition for a writ of coram

nobis is not subject to a statute of limitations, the petitioner
must show that there were valid reasons that the conviction was
not attacked earlier.

See id. at 604-05.

This requirement

upholds a court’s gate-keeping in barring claims that are
unjustifiably late.

Shin’s petition is based on allegedly

exculpatory statements that Choy made to the Government, but that
Shin only learned of during a conversation with Choy in May 2015.
See id., PageID # 294.

Shin filed his petition in September

2015.

These circumstances provide valid reasons

See ECF No. 91.

for Shin’s failure to file his petition earlier.
The fourth factor requires an error of “the most
fundamental character.”

Matus-Leva, 287 F.3d at 760.

A

fundamental error is an error that renders the underlying
proceeding itself irregular and invalid.

See Morgan, 346 U.S.

502; Hirabayashi, 828 F.2d at 604; see also United States v.
George, 676 F.3d 249, 258 (1st Cir. 2012) (“an error of the most

11

fundamental character must denote something more than an error
simpliciter” (citation omitted)).
The Supreme Court and Ninth Circuit have identified a
limited number of fundamental errors, including ineffective
assistance of counsel, see United States v. Ifenatuora, 586 Fed.
Appx. 303, 304 (9th Cir. 2014), cert. denied, 135 S.Ct. 1750
(2015), a federal criminal trial without defense counsel and
without a competent and intelligent waiver of counsel, see
Morgan, 346 U.S. at 512, a guilty plea induced by a bargain that
was not kept, see Holloway v. United States, 393 F.2d 731, 732
(9th Cir. 1968), an erroneous jury instruction relieving the
prosecution of proving an essential element of the offense, see
McClelland, 941 F.2d at 1003, and the nondisclosure of
exculpatory evidence in violation of Brady v. Maryland, 373 U.S.
83(1963), see Ikbal v. United States, 304 Fed. Appx. 604, 606
(9th Cir. 2008).
Shin fails to establish that there is a fundamental
error that rendered his conviction irregular and invalid.
The only fundamental error identified by Shin is what
he calls the Government’s Brady violation.

According to Shin,

the Government failed to “disclose key evidence which was
exculpatory and/or was material to the defense for impeachment
purposes.”

See ECF No. 114, PageID # 552.
Generally, there are three components to a Brady

12

violation:

“The evidence at issue must be favorable to the

accused, either because it is exculpatory, or because it is
impeaching; that evidence must have been suppressed by the State,
either willfully or inadvertently; and prejudice must have
ensued.”

Strickler v. Greene, 527 U.S. 263, 281-82 (1999); see

also Hamilton v. Ayers, 583 F.3d 1100, 1110 (9th Cir. 2009).
In United States v. Ruiz, 536 U.S. 622 (2002), the
Supreme Court held that “[t]he Constitution does not require the
Government to disclose material impeachment evidence prior to
entering a plea agreement with a criminal defendant.”
U.S. at 633.

Ruiz, 536

See also United States v. Eltringham, 550 Fed.

Appx. 398, 399 (9th Cir. 2013).

The Supreme Court explained:

[I]mpeachment information is special in
relation to the fairness of a trial, not in
respect to whether a plea is voluntary
(“knowing,” “intelligent,” and
“sufficient[ly] aware”). Of course, the more
information the defendant has, the more aware
he is of the likely consequences of a plea,
waiver, or decision, and the wiser that
decision will likely be. But the
Constitution does not require the prosecutor
to share all useful information with the
defendant. Weatherford v. Bursey, 429 U.S.
545, 559, 97 S. Ct. 837, 51 L.Ed.2d 30 (1977)
(“There is no general constitutional right to
discovery in a criminal case”). And the law
ordinarily considers a waiver knowing,
intelligent, and sufficiently aware if the
defendant fully understands the nature of the
right and how it would likely apply in
general in the circumstances--even though the
defendant may not know the specific detailed
consequences of invoking it. A defendant,
for example, may waive his right to remain
silent, his right to a jury trial, or his
13

right to counsel even if the defendant does
not know the specific questions the
authorities intend to ask, who will likely
serve on the jury, or the particular lawyer
the State might otherwise provide.
Ruiz, 536 U.S. at 629-30 (second alteration in original).
Therefore, under Ruiz, the withholding of impeachment
evidence would not rise to the level of a Brady violation, let
alone a Brady violation sufficient to justify the issuance of an
extraordinary writ.

Because Shin elected to plead guilty

pursuant to a plea agreement, he can only establish a Brady
violation by a showing that the Government withheld exculpatory
(not just impeaching) evidence from him prior to his guilty plea.
Shin was convicted under 18 U.S.C. § 1001(a)(3) for
having made a false statement to the Government.

Section

1001(a)(3) imposes criminal liability for “whoever, in any matter
within the jurisdiction of the executive, legislative, or
judicial branch of the Government of the United States, knowingly
and willfully . . . makes or uses any false writing or document
knowing the same to contain any materially false, fictitious, or
fraudulent statement or entry.”

“A conviction under § 1001

requires the government to prove (1) a statement, (2) falsity,
(3) materiality, (4) knowledge, and (5) jurisdiction.”

United

States v. Peterson, 538 F.3d 1064, 1073 (9th Cir. 2008) (citing
United States v. Atalig, 502 F.3d 1063, 1066 (9th Cir. 2007)).
Shin does not dispute that he made a false statement to

14

the Government in submitting a project bid with subcontractor
quotes that were inflated by a total of $380,000.
91, PageID #s 266-67.

See ECF No.

But Shin says the Government committed a

Brady violation by failing to disclose that it could not have
shown that the inflated quotes were “material,” as required for a
conviction at trial.

See id.

Under 18 U.S.C. § 1001(a)(3), the element of
materiality is evaluated under “an objective test, which looks at
‘the intrinsic capabilities of the false statement itself, rather
than the possibility of the actual attainment of its end.’”
Peterson, 538 F.3d at 1072 (quoting United States v. Facchini,
832 F.2d 1159, 1162 (9th Cir. 1987)).
“To be material a statement need only have the
propensity or capacity to influence or affect an agency’s
decision.”

United States v. Rodriguez-Rodriguez, 840 F.2d 697,

700 (9th Cir. 1988) (citations omitted).

“The agency need not

rely on the information in fact for it to be material.”

Id.

“Materiality, therefore, is not measured by effect or magnitude.”
Facchini, 832 F.3d at 1162.
Materiality is a question for the trier-of-fact.

See

United States v. Gaudin, 515 U.S. 506, 511-15 (1995).
Specifically, Shin contends that Choy’s “clarification”
statement and his statements in a later conversation that Shin
tape recorded show that the Government withheld exculpatory

15

evidence that Choy “was not a competent or qualified witness to
testify about the issue of ‘materiality.’”
PageID # 244.

See ECF No. 91,

Shin argues that Choy’s post-sentencing statements

show that Choy, far from helping the Government prove its case,
would have “negated the ‘materiality’ element of the False
Statement charge.”

See id.

Shin adds that this evidence also

reveals that “Choy was an exculpatory witness regarding the issue
of ‘materiality’” because Choy’s comments show that the false
statement was not material to him.

See id.

Choy’s “clarification” statement reads:
(1) Clarification as to my role in this
contract. I am not a contracting official
nor do I have the authority to revise a
contractual requirement. My task was to
review the contractor’s proposal to ensure
that the contractor scope of work is in
accordance with the Governments scope of work
and provide an opinion on a fair and
reasonable price for the Government.
(2) On 14 August 2003 despite the fact that
the contractor’s proposal was with range 6%
($148,903) of the Government estimate (GE
$2,211,250 vice contractor proposal
$2,360,153), I was requested by the
contracting administer to review the
contractor’s proposal for technical
compliance (i.e. Contractor’s scope of work)
and provide an opinion of a fair and
reasonable price. Since the contractor
proposal consisted of aggregated pricing it
was difficulty to determine if the contractor
proposal was in practicable in line eh
Government scope of work, I requested to the
contracting administer if the contractor can
provide additional breakdown of their
proposal.

16

(3) On September 8, 2003, I attended a
meeting along with the contracting administer
in which Mr. Patrick Shin explained to the
Government that based on this contractor he
had a zero coefficient for this project. I
recall stating that I understand that Mr.
Shined needed to “roll” this overhead and
profit into the line items since he had a
zero coefficient but that is a contractual
issues and not a technical issue.
(4) My Government estimate was prepared with
a contractor coefficient. It was my
understanding during this time that the
contractor’s coefficient included their
overhead and profit so to not include a
coefficient would not be fair and would be
unreasonable. I was surprised by the fact
that this project had a zero coefficient and
turned this issue to the contracting officer,
the authorized person, to resolve.
ECF No. 91, PageID #s 272-73 (grammar and spelling as in
original).
Shin characterizes Choy’s “clarification” statement as
exculpatory, treating it as an admission by Choy that he could
not have been a materiality witness for the Government.

But this

argument assumes that the Government had no other way of proving
materiality.

As it turns out, Choy was not the only source of

materiality evidence.
The Government could have used testimony by Annette
Ching, the contracting officer for the project bid, to prove that
Shin’s statement was material to the Navy in deciding whether to
award the job to JHL.

Ching’s declaration indicates the type of

testimony she may have given on the Government’s behalf had

17

Shin’s case gone to trial.

See ECF No. 100-3.

Ching states that

she “was assigned responsibility for negotiating and recommending
the award of a task order contract for the overhaul of Pump # 2,
Dry Dock # 4 at the Pearl Harbor Naval Shipyard.”
PageID #s 429-30.

See id.,

She adds:

I later learned from criminal investigators
that the HSI Electric and Conhagen quotations
given to me by Shin had been inflated by
$380,000, by altering the original
quotations. Had I known that the quotations
were altered and inflated, I would have
recommended against the award of the contract
to JHL. I would have been concerned both
about the actual costs incurred by JHL, and
about the integrity of the company.
See id., PageID # 431.
Ching also states:
Regardless of the coefficient on the job, I
wanted to know the actual costs of the
contractor for purposes of deciding whether
to award the contract and at what price.
Choy would be responsible for determining
whether the proposal was technically
acceptable. I would be responsible for
determining whether the price was fair and
reasonable. The true subcontractor costs
charged to JHL would have been a factor Choy
and I could have considered in making our
decisions.
See id.

Testimony by Ching at trial that JHL’s actual costs

would have influenced her decision as to whether the proposed
price was fair, and that she would not have recommended a
contract with JHL had she known that the costs were inflated,
could have established that the inflated quotes had the

18

propensity or capacity to influence or affect the Navy’s award of
the job.

See Rodriguez-Rodriguez, 840 F.2d at 700.
Even if, for some reason, the Government could not have

called Ching as a fact witness, it could conceivably have called
her as an expert witness regarding what the Navy considers in its
decision to award such projects, and whether statements such as
Shin’s would normally be material to the Navy’s decision-making
process.

Shin himself acknowledges that materiality may be

proven through an expert witness.

See ECF No. 91, PageID # 268

(“Materiality is best shown by the testimony of a witness,
generally those who make the decisions on the application or
statements in the particular case, concerning the influence that
defendant’s allegedly false statement might have had on the
ultimate result of the transaction.

Such a witness may be an

expert witness or a fact witness, or both.” (quoting Dep’t of
Just. Manual Resource Manual Title 9 Number 911)).
In its earlier discovery order, this court noted that,
alternatively or additionally, the Government could have relied
on other witnesses like Robert Hokama to testify regarding
materiality.

While not involved in the negotiations in which

Shin made his false statement, Hokama was the Director of the
Procurement Operations Division for Pearl Harbor and Ching’s
supervisor at the time Shin was negotiating the contract on
behalf of JHL.

See ECF No. 48-1.

19

After this court issued its order referring to possible
testimony by Hokama concerning materiality, Shin filed a
memorandum indicating that Hokama had recently told Shin’s
counsel that he would have approved JHL’s proposal even had he
known it included falsified subcontractor amounts.

This court

recognizes that the Government would not, after all, have called
Hokama as a materiality witness at trial if Government attorneys
knew that he would testify to what Shin’s counsel reports.
Shin’s counsel conceded, however, that he had no information
suggesting that Hokama ever communicated his position to anyone
before Shin pled guilty.

In the absence of any statement by

Hokama about his hypothetical approval of a contract in the face
of knowledge that it included falsities, the Government could
have contemplated calling him as a materiality witness.

More

importantly, Hokama’s earlier silence on the subject means that
the Government’s failure to disclose his view could not serve as
the basis of a Brady violation.

The Government has no duty to

disclose exculpatory “evidence” that is simply an unspoken
hypothetical locked in an individual’s mind.
Shin says that he did not know prior to his guilty plea
that the Government had any materiality witness besides Choy.
Shin appears to be claiming that this somehow means that the
Government may not rely on other materiality evidence.
No. 115-1, PageID # 578.

See ECF

It is far-fetched that Shin, who, in

20

his own words, “was experienced in federal government contracting
matters,” see ECF No. 91, PageID # 249; see also id., PageID #s
245-46, did not know that Ching could have testified as to the
materiality of his statements.

But even if Shin thought Choy was

the sole possible witness on materiality, the Government was not
bound by Shin’s assumptions.

The Government was and is free to

present all the evidence in its possession to establish that
Shin’s false statements were material.
It is not the case that, before Shin pled guilty, the
Government was required to outline for Shin which person or
persons might provide evidence at trial going specifically to
materiality or to any other element of a false statement charge.
Nor does Shin point to anything suggesting that the Government
misled him into believing that its only source of materiality
evidence was Choy.

Cf. Ruiz, 536 U.S. at 632 (“Consequently, the

Ninth Circuit’s requirement could force the Government to abandon
its ‘general practice’ of not ‘disclos[ing] to a defendant
pleading guilty information that would reveal the identities of
cooperating informants, undercover investigators, or other
prospective witnesses.’”).

Indeed, Shin’s counsel admitted

during a telephone conference with the court on August 23, 2016,
that the Government never expressly identified Choy as its
materiality witness.

According to Shin’s counsel, Choy’s role in

the Navy’s review of the JHL bid supported Shin’s assumption that

21

Choy was the Government’s materiality witness.

But any

assumption that Choy was the Government’s only possible
materiality witness was unjustified.
It also bears noting that Shin overstates what Choy
told Shin after Shin was sentenced.

Choy never admitted that he

could not have testified regarding the materiality of Shin’s
statement.

Although Choy believed that, because he was not the

contracting authority, he could not testify about contractual
issues such as whether or not JHL should have been awarded the
contract in spite of Shin’s false statement, Choy could still
have testified about a number of issues relevant to materiality.
For example, Choy could have testified as to why he asked JHL to
provide subcontractor quotes; whether including the Pump # 2 work
in JHL’s JOC was typical or a mistake; what type of information
Ching had requested in regards to the JHL bid; what type of
technical assistance Choy had given Ching regarding the JHL bid;
and a host of other things relevant to establishing materiality,
but not requiring testimony as to how Choy might have decided
whether to award the project to JHL.

Choy’s insistence that he

could not testify as to decision-making issues versus “technical”
issues relates only to the scope of his testimony, not to whether
he had anything at all to say about materiality.
Choy was a potential Government witness, not a
Government lawyer.

Any so-called “admission” by him about what

22

he was legally able to say could not have precluded a Government
lawyer from calling him to testify about materiality.
Shin also argues that statements in Choy’s declaration
and taped conversation indicate that Choy believed Shin’s
misrepresentations were immaterial.

There is no such indication.

During the taped conversation, Shin pressed Choy to admit that he
had told Government prosecutors that the inflated quotes did not
matter.

But Choy appears to have instead repeatedly explained

that he lacked the authority to decide such contracting issues.
Shin asked, “Did you ever explain to [the Government prosecutor]
about coefficient and the–-he thought that–-you know, roll in
profit and overhead?”

See ECF No. 102-3, PageID # 481.

answered, “I know that was the issue.
a contracting issue.

Choy

The issue–-that’s why it’s

That wasn’t for me to decide whether, you

know, he bid–-Nan, Inc. [Shin’s company] bid–-but realized that
he needed to make profit and overhead.”

See id., PageID # 482.

Shin against pressed Choy:
Shin: So when you talked to, like, [the
Government prosecutor] and these government
people, you explained there’s no coefficient
and we had to roll it in profit and overhead
and–-but do they still understand when you
were talking to them?
Choy: So I told them that, but I told them I
think–-because it’s an ACQ issue, acquisition
issue, that’s not for me to decide whether
they going let Nan, Inc. roll into the–-into
the–Shin:

Roll in the coefficient?
23

Choy: Yeah, yeah. That’s not my call. I
don’t have the authority to make that kind of
call.
Shin:

Uh-huh.

Choy: So I remember telling them about the
zero percent coefficient. I remember telling
them, “Does it have that?” So I kept–-I
remember telling them that it’s not my job
responsibility to do that, it’s
acquisition’s.
See id., PageID #s 482-83.

See also id., PageID # 481

(discussing contract question about whether Government could give
zero coefficient contract to Nan, Inc., and noting, “I’m not the
one that–-I’m not supposed to decide” and “I don’t know” about
contracting issues); id., PageID # 482 (“that’s not for me to
decide.

That’s ACQ guys.

I just over here to review the

technical aspect and say that, oh, does this make sense kind of
deal, right”).
Choy’s belief that this issue fell outside his duties
is not an indication as to materiality at all.
Shin contends that the following statement by Choy also
indicates that Choy would testify that Shin’s statement was not
material to him:
It was my understanding during this time that
the contractor’s coefficient included their
overhead and profit so to not include a
coefficient would not be fair and would be
unreasonable. I was surprised by the fact
that this project had a zero coefficient and
turned this issue to the contracting officer,
the authorized person, to resolve.

24

See ECF No. 91, PageID # 273 (numbers omitted).

Choy also

recalled telling prosecutors “[a]bout that zero percent
coefficient, yeah, who the contract was awarded and that–-the
zero percent coefficient and it needed to go to overhead and
profit.

I mean how else he going make money, right?”

See ECF

No. 102-3, PageID # 487.
Here, too, Shin treats Choy’s statements as asserting
more than they do.

Choy was expressing his understanding that it

would be unreasonable for the Navy to require a private
contractor like JHL to perform a job for free.

Choy appears to

have been telling Shin that he understood to some extent Shin’s
motive for inflating the subcontractor bids.

But this is a far

cry from suggesting that falsified subcontractor prices were
immaterial to him or to the Navy, or that Choy communicated such
a thought to anyone.

Regardless of whether Choy thought a

contractor should make some profit, an inability to make a profit
absent a false statement to the Government is not a defense to a
charge under 18 U.S.C. § 1001.

Thus, whatever Choy may have said

to Government prosecutors on this subject, there is no reason
that, before Shin pled guilty, the prosecutors had to relay to
Shin Choy’s belief that a contractor was entitled to make a
profit.
Even assuming that Choy had earlier told the Government
what he later told Shin in his clarification statement and the

25

taped conversation, these statements did not constitute
exculpatory evidence that the Government improperly withheld from
Shin prior to his guilty plea.

Having failed to establish the

only fundamental error he identifies, Shin is not entitled to a
writ of coram nobis.
B.

Shin Is Not Entitled to an Evidentiary Hearing in
Support of a Writ of Coram Nobis.

Shin argues that he is entitled to an evidentiary
hearing if this court does not grant his petition for writ of
coram nobis outright.

See ECF No. 91, PageID # 301.

“Whether a hearing is required on a coram nobis motion
should be resolved in the same manner as habeas corpus
petitions.”

United States v. Taylor, 648 F.2d 565, 573, n.25

(9th Cir. 1981) (citing Owensby v. United States, 353 F.2d 412,
417 (10th Cir. 1965)).

See also Korematsu v. United States, 584

F. Supp. 1406, 1412 (N.D. Cal. 1984) (Ҥ 2255 considerations
apply [in a coram nobis proceeding] in determining whether an
evidentiary hearing is required” (citing Taylor, 648 F.2d at 573
n.25)).

A petitioner “is entitled to an evidentiary hearing on

his claim ‘[u]nless the motion and the files and records of the
case conclusively show that the prisoner is entitled to no
relief.’”

Frazer v. United States, 18 F.3d 778, 781 (9th Cir.

1994) (quoting 28 U.S.C. § 2255).

“In deciding whether to grant

an evidentiary hearing, a federal court must consider whether
such a hearing could enable an applicant to prove the petition’s
26

factual allegations, which, if true, would entitle the applicant
to federal habeas relief.”

Schriro v. Landrigan, 550 U.S. 465,

474 (2007).
This court addressed a similar inquiry in determining
whether Shin had good cause to depose Choy and Ching.
No. 117.

See ECF

Under the good cause standard applicable to the

discovery ruling, the court was required to examine whether the
“‘specific allegations before the court show reason to believe
that the petitioner may, if the facts are fully developed, be
able to demonstrate that he is . . . entitled to relief.’”

Id.,

PageID # 605 (quoting Pham v. Terhune, 400 F.3d 740, 743 (9th
Cir. 2005)).

Consistent with the above analysis regarding

whether the Government withheld exculpatory evidence regarding
Choy, this court ruled that Shin’s allegations, together with the
evidence Shin pointed to in support of his allegations, gave this
court no reason to believe that deposing Choy would lead to
evidence demonstrating that the Government had withheld
exculpatory evidence from Shin before he pled guilty.
PageID #s 607-22.

See id.,

With regard to Ching, Shin never alleged that

she provided any exculpatory evidence to the Government.

Thus,

this court determined that Shin had failed to show good cause to
depose Ching as well.

See id., PageID #s 623-25.

Once it denied Shin a chance to depose Choy or Ching,
this court could not discern from the record what further

27

evidence Shin might offer in support of his request for a writ of
coram nobis.

The only fundamental error alleged by Shin involved

the Government’s purported withholding of exculpatory statements
by Choy.

Nevertheless, in an abundance of caution, this court

gave Shin a further opportunity to explain whether he continued
to want an evidentiary hearing.

See id., PageID #s 625-26.

Shin

filed a request for an evidentiary hearing that included an offer
of proof regarding what would be presented at an evidentiary
hearing:
Patrick Shin will testify as set forth in his
Petition that, to him, the key witness in the
entire case as to “materiality” was Wes Choy
because Choy was the Government employee who
prepared the Government Estimate (GE) and
asked for the subcontractor quotes. Shin
will testify that, had he known that once
Choy found out about the zero coefficient
problem, Choy “washed his hands” of the
contract and turned all issues over to the
contracting officers, he would not have pled
guilty.
Robert Hokama will testify (based on
Petitioner’s counsel’s discussion with him
yesterday) that if the Pump #2 contract had
reached his desk with the information that
Petitioner had changed the subcontractor bids
because of the zero coefficient problem, he
still would have approved the contract, i.e.,
the subcontractor quotes would not have been
“material” to him because the JHL proposal
was close to the GE. He will also testify he
was the contracting officer with final
authority to approve the contract over
Annette Ching and Brian Sekiguchi. (This
Court speculated at 22-23 of its Order that
Mr. Hokama might be a witness for the
Government on the issue of “materiality.”
This is clearly not the case.)
28

Brian Sekiguchi will testify (based on
Petitioner’s counsel’s discussion with him
yesterday) about the inappropriate assignment
of the Pump #2 contract to the JHL JOC, as he
set out in his Declaration for sentencing.
He will testify that if the contract had
reached his desk with the information that
Petitioner had changed the subcontractor
bids, he would have passed the contract on to
Robert Hokama for final decision.
Wes Choy will testify as set forth in
Petitioner’s Petition. To the extent that he
tries to deny the statements he made to
Petitioner, his tape recorded statement will
be introduced into evidence. Choy will also
admit that his Government Estimate (GE)
for the contract cost was reasonable with
consideration of a reasonable coefficient.
Annette Ching will testify that she was not
the ultimate deciding authority regarding the
approval of the contract. She may testify
that she would recommend not approving the
contract because of Petitioner’s
falsifications, but she will have to admit
that the final authorities were Brian
Sekiguchi and Robert Hokama.
ECF No. 119, PageID #s 632-34.
Even taking Shin’s offer of proof as an accurate
summary of the testimony that Shin would present, this court sees
no reason to conduct an evidentiary hearing.

The offer of proof

shows that the evidence sought by Shin either duplicates evidence
already in the record, or would not entitle him to the relief he
seeks.

The offer of proof states that Shin would “testify as set

forth in his Petition,” and that “Wes Choy will testify as set
forth in Petitioner’s Petition.”

Id.

Far from demonstrating any

inadequacy in the record with respect to Choy and Shin, Shin’s
29

offer of proof only proposes to corroborate statements Choy made
in his clarification statement and the taped conversation.

See

Korematsu, 584 F. Supp. at 1412 (noting that evidentiary hearing
may be afforded “when a palpable claim is raised by the
petitioner and there is an inadequate record or disputed factual
issues” (citing Townsend v. Sain, 372 U.S. 293, 318 (1963)).

As

discussed above, however, even if the court accepted these
statements as true, they would not be sufficient to show that the
Government withheld exculpatory material from Shin.
Furthermore, the offers of proof for Hokama, Sekiguchi,
and Ching are irrelevant for the purpose of a coram nobis
petition.

During the telephone conference in which Shin’s

request for an evidentiary hearing was discussed, Shin’s counsel
admitted that he had no reason to believe that any of these
witnesses had told anyone before Shin pled guilty that they would
have approved the contract even had they known that Shin had
falsified the subcontractor quotes.

Shin’s counsel conceded that

Shin’s petition was focused solely on the Government’s failure to
disclose what Shin says were exculpatory statements by Choy.
As this court has already noted, Shin’s offer of proof
concerning Hokama indicates that Shin intended to present newly
discovered evidence from Hokama that Shin’s misrepresentations
were immaterial to him.

Shin concedes that this new evidence is

not probative of any fundamental error.

30

See Moody v. United

States, 874 F.2d 1575, 1577 (11th Cir. 1989) (“A claim of newly
discovered evidence relevant only to the guilt or innocence of
the petitioner is not cognizable in a coram nobis proceeding.”).
Although such evidence may have been relevant to the materiality
element of the underlying offense, it is irrelevant to any of the
legal elements for a writ of coram nobis.
With respect to Ching, it appears from Shin’s offer of
proof that he intended to elicit testimony that she was not the
ultimate decision maker and therefore could not testify as to
materiality.

If this is Shin’s purpose, it is based on a

misunderstanding of materiality.

Because materiality is

evaluated under “an objective test, which looks at ‘the intrinsic
capabilities of the false statement itself, rather than the
possibility of the actual attainment of its end,’” Peterson, 538
F.3d at 1072 (quoting Facchini, 832 F.2d at 1162), materiality
evidence can be provided by individuals other than the ultimate
decision maker.

In many cases, the ultimate decision maker

relies on individuals like Ching and Choy to evaluate a proposal
or statement and to make recommendations that guide the final
decision.

See, e.g., U.S. ex rel. Longhi v. Lithium Power

Techs., Inc., 513 F. Supp. 2d 866, 888 (S.D. Tex. 2007)
(rejecting argument that Government could not rely on witness to
establish materiality because he was not ultimate decision maker
regarding award of contract).

Individuals may provide evidence

31

as to materiality to the extent that their knowledge and
experience allow them to testify regarding whether a particular
statement has “the propensity or capacity to influence or affect
an agency’s decision.”
(citations omitted).

Rodriguez-Rodriguez, 840 F.2d at 700
As discussed above, Ching could even have

testified as an expert witness regarding materiality.

Shin’s

offer of proof with respect to Ching does not show that her
testimony would somehow support the issuance of a writ of coram
nobis.
Even assuming that the witnesses Shin identifies would
testify in accordance with his offer of proof, none of the
testimony sought from Hokama, Ching, or Sekiguchi would be
relevant to the narrow issue of whether exculpatory material was
withheld, creating a fundamental error in the underlying
proceeding.

See Ybarra v. United States, 461 F.2d 1195, 1200

(9th Cir. 1972) (affirming denial of evidentiary hearing when
nothing could be gained by granting hearing).

The petition,

file, and records of this case conclusively show that Shin is not
entitled to coram nobis relief.

Shin fails to show that an

evidentiary hearing would change the outcome.
C.

Writ of Audita Querela.

Shin alternatively seeks a writ of audita querela to
vacate his conviction.

See ECF No. 91, PageID #s 304-05.

“The writ of audita querela, meaning literally ‘the

32

complaint having been heard,’ is a common law writ used to attack
a judgment that was correct when rendered, but which later became
incorrect because of circumstances that arose after the fact.”
United States v. Fischer, No. 3:01-CR-00263-HA, 2014 WL 5473586,
at *3 (D. Or. Oct. 28, 2014) (quoting Carrington v. United
States, 503 F.3d 888, 890 n.2 (9th Cir. 2007)).
The Supreme Court has limited the availability of the
writ to “extraordinary” cases presenting circumstances compelling
its use “to achieve justice.”

Morgan, 346 U.S. at 511.

“The

writ is similar, but not identical, to the writ of error coram
nobis; audita querala is directed against the enforcement, or
further enforcement, of a judgment which, when rendered, was just
and unimpeachable, whereas coram nobis attacks the judgment
itself.”

Fischer, 2014 WL 5473586, at *3 (citations omitted).
In Doe v. INS, 120 F.3d 200 (9th Cir. 1997), the Ninth

Circuit ruled that the writ is unavailable for parties who seek
it purely for equitable relief.

With audita querela unavailable

on purely equitable grounds, the Ninth Circuit questioned without
deciding whether any situation existed in which the writ of
audita querala would be the appropriate remedy.
F.3d at 204.

See Doe, 120

See also United States v. Johnson, 962 F.2d 579,

583 (7th Cir. 1992) (questioning “the extent of the viability of
audita querela given the availability of coram nobis and
§ 2255”); United States v. Reyes, 945 F.2d 862, 866 (5th Cir.

33

1991) (noting that “audita querela seems to add little, if
anything, to the current scheme of postconviction relief afforded
by section 2255 and the writ of coram nobis”).

The Ninth Circuit

noted, “with section 2255 and coram nobis available to challenge
the lawfulness of conviction, several courts have questioned,
without deciding, whether audita querela survives at all.”

Doe,

120 F.3d at 204.
Not every court considers the writ of audita querela to
have been eliminated.

In Erickson v. United States, 757 F. Supp.

2d 1060, 1061 (D. Or. 2010), the defendant brought a petition for
writ of audita querala to set aside or invalidate a felony
conviction for refusing to submit to induction into the military
on the grounds that the defendant was a nonreligious
conscientious objector.

Erickson was no longer in custody and

was therefore not eligible for relief under § 2255.

Decades

after his conviction, the Supreme Court had expanded the
definition of and requirements for conscientious objector status,
creating a defense to the crime defendant had been charged with.
Id. at 1064.

With this newfound defense creating a legal defect

in the underlying conviction, the court held that the defendant
was entitled to a writ of audita querela and vacated his
conviction.

Id.

Shin, however, has not made an equivalent

showing justifying the issuance of the writ on the present
record.

34

“Even assuming the continued vitality of audita
querela, courts have ruled that it is only available where there
is a legal objection to a judgment which has arisen subsequent to
that judgment.”
F.3d at 204).

Fischer, 2014 WL 5473586, at *4 (citing Doe, 120
See Doe, 120 F.3d at 204 (“a writ of audita

querela, if it survives at all, is available only if a defendant
has a legal defense or discharge to the underlying judgment”).
Shin does not allege a post-conviction legal defect,
instead arguing that the writ provides relief when an evidentiary
matter arising after the conviction has rendered the conviction
unfair.

Shin is making an equitable, rather than a legal, claim.

He is arguing that even if the prosecuting authorities did not
withhold exculpatory evidence, later statements by Choy, Hokama,
and Sekiguchi are “facts discovered after the judgment was
rendered” that render his conviction unfair.

Shin provides no

authority indicating that the scope of the writ of audita querela
extends to such a circumstance.
This court is cognizant that the writ of audita querela
is a writ of last resort only available, if at all, when all
other post-conviction remedies have been exhausted.

See United

States v. Valdez-Pacheco, 237 F.3d 1077, 1080 (9th Cir. 2001);
see also United States v. Baptista, No. CR 10-00050 PJH, 2013 WL
4014965, at *3 (N.D. Cal. Aug. 5, 2013).

In this regard, a

petitioner may not challenge his conviction through the writ on

35

grounds that are cognizable under another form of post-conviction
relief.
Shin’s petition for writ of audita querela
substantively is a claim that new evidence has arisen that would
support his defense at trial.

See ECF No. 91, PageID # 304.

Shin’s assertion of new evidence is akin to what might be
asserted in a motion for a new trial based upon new evidence.
Fed. R. Crim. P. 33.

Shin may not now avail himself of a motion

for new trial because Rule 33 requires such a motion to be filed
within three years of final judgment.
But the unavailability of a Rule 33 motion does not
necessarily give rise to a right to a writ of audita querela.
Valdez-Pacheco, the petitioner attempted to use the writ of

In

audita querela because a § 2255 habeas motion was precluded by
the Antiterrorism and Effective Death Penalty Act of 1996.
F.3d at 1078-79.

237

The Ninth Circuit affirmed the dismissal of

Valdez’s petition, explaining:
we reject Valdez’s contention that audita
querela is available in his case due to the
fact that he is precluded from raising his
claims in a § 2255 motion by those provisions
of the Antiterrorism and Effective Death
Penalty Act of 1996, Pub.L. 104-132, tit. I,
§ 105, 110 Stat. 1214, 1220 (AEDPA) (codified
in relevant part at 28 U.S.C. §§ 2255 and
2244), that limit the rights of a prisoner to
file a second or successive motion. A
prisoner may not circumvent valid
congressional limitations on collateral
attacks by asserting that those very
limitations create a gap in the
36

postconviction remedies that must be filled
by the common law writs. See Kimberlin, 675
F.2d at 869; see also In re Davenport, 147
F.3d 605, 608 (7th Cir. 1998) (concluding
that, even if the limitations of AEDPA
foreclosed the use of 28 U.S.C. §§ 2241 and
2255 by federal prisoners, “it would be
senseless to suppose that Congress permitted
them to pass through the closed door [by way
of the All Writs Act] simply by changing the
number 2241 to 1651 on their motions”); cf.
Moore v. Reno, 185 F.3d 1054, 1055 (9th Cir.
1999) (per curiam) (concluding that § 2255 is
not inadequate or ineffective merely because
a particular prisoner’s § 2255 motion is
procedurally barred), cert. denied, 528 U.S.
1178, 120 S.Ct. 1214, 145 L.Ed.2d 1115
(2000).
Valdez-Pacheco, 237 F.3d at 1080.

If the writ of audita querela

is available whenever new evidence is discovered, that writ will
nullify the limitations of Rule 33 and thwart society’s
compelling interest in the finality of criminal convictions.
United States v. Hill, 878 F.2d 387 (9th Cir. 1989).

See

This court

therefore questions why Shin’s inability to assert a timely
motion for new trial should, without more, make the writ of
audita querala available.
Notwithstanding the concerns it expresses here, this
court recognizes that it left pending Shin’s request to depose
Choy and Ching in support of his petition for writ of audita
querela.

Given that pending issue, this court does not here

dispose of his petition for writ of audita querela.

Instead, if

Shin still believes he is entitled to relief under this
extraordinary writ, this court invites Shin to file an optional
37

supplemental memorandum no later than September 15, 2016, in
support of his petition for writ of audita querela.

Otherwise,

this court will enter judgment denying the entire petition.

The

memorandum shall be no more than 3,000 words and must include
legal authorities in support of any legal propositions advanced.
Furthermore, if Shin still believes he is entitled to discovery
in support of his petition for writ of audita querela, Shin must
provide this court with argument and legal authority regarding
the appropriate discovery standard for the writ of audita
querela, and an explanation as to how the discovery he seeks
would entitle him to relief under this writ.
V.

CONCLUSION.
Shin’s petition for writ of error coram nobis is

denied.

This court defers ruling on Shin’s petition for writ of

audita querela until Shin has filed an optional supplemental
memorandum in support of the petition by September 15, 2016, or
the deadline has passed without such a filing.

If Shin files an

optional memorandum, the Government may respond no later than
September 29, 2016, in a memorandum of no more than 3,000 words.
If this court does not receive a memorandum from Shin by the
deadline, it will enter judgment against Shin in this action.

38

IT IS SO ORDERED.
DATED: Honolulu, Hawaii, September 1, 2016.

/s/ Susan Oki Mollway
Susan Oki Mollway
United States District Judge

Patrick Shin v. United States of America, Crim. No. 04 00150 SOM, Civ. No. 15
00377 SOM RLP; ORDER DENYING DEFENDANT’S PETITION FOR WRIT OF ERROR CORAM
NOBIS, AND INVITING SUPPLEMENTATION OF ALTERNATIVE PETITION FOR WRIT OF AUDITA
QUERELA

39