Shin v. United States of America

Filing 66

AMENDED ORDER DENYING DEFENDANT'S PETITION FOR WRIT OF ERROR CORAM NOBIS; ORDER DENYING ALTERNATIVE PETITION FOR WRIT OF AUDITA QUERELA as to PATRICK SHIN re: 1 ; ECF no. 91 in CR 04-150-SOM-01. Signed by JUDGE SUSAN OKI MOLLWAY on 6/28/2017. Conclusion of order: "This court denies Shin's petition for a writ of coram nobis or alternatively for a writ of audita querela. Shin' ;s motion to amend his petition is also denied. Shin's request for an evidentiary hearing and further discovery is denied. This court directs the Clerk of Court to enter judgment against Shin and to close Civil No. 15-00377." (CR 04-00150-SOM-01; CV 15-00377-SOM-RLP) Order amends Order, ECF no. 33 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). All participants are registered to receive electronic notifications.

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF HAWAII
PATRICK SHIN,

)
)
Petitioner,
)
)
vs.
)
)
UNITED STATES OF AMERICA,
)
)
Respondent.
)
_____________________________ )

CRIM. NO. 04-00150 SOM
CIV. NO. 15-00377 SOM-RLP
AMENDED ORDER DENYING
DEFENDANT’S PETITION FOR WRIT
OF ERROR CORAM NOBIS; ORDER
DENYING ALTERNATIVE PETITION
FOR WRIT OF AUDITA QUERELA

AMENDED ORDER DENYING DEFENDANT’S PETITION FOR
WRIT OF ERROR CORAM NOBIS; ORDER DENYING
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, which included twelve days of
intermittent confinement, and to a $100,000 fine.

Shin now

seeks to vacate his conviction more than ten years after
judgment was entered.

Having long since paid his fine and

completed his term of probation and intermittent confinement, 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, filed on
September 22, 2015, Shin argues that he has recently discovered
exculpatory evidence that the Government should have disclosed
to him before he entered his guilty plea.
1

Specifically, Shin

contends that the Government wrongfully withheld evidence that a
Navy engineer involved in the contracting process could not have
testified as to the materiality of Shin’s false statements.
Shin says that, because materiality is an essential element of
the false statement charge, his conviction should be vacated.
Although Shin’s original materiality argument was
couched in terms of an alleged violation by the Government of
its disclosure obligation under Brady v. Maryland, 373 U.S. 83
(1963), Shin has, over time, refocused his materiality analysis.
In 2016, months after Shin had filed his Verified Petition, the
Supreme Court discussed the materiality standard applicable to a
False Claims Act charge in Universal Health Services, Inc. v.
United States ex rel. Escobar, 136 S. Ct. 1989 (2016).

Less

than a month later, the Ninth Circuit examined the materiality
standard without mentioning Escobar.

Rehearing was sought, and,

on rehearing, the Ninth Circuit expressly considered Escobar’s
materiality analysis.

See United States v. Lindsey (Lindsey I),

827 F.3d 865 (9th Cir. 2016), rehearing granted and opinion
withdrawn by 854 F.3d 1047 (9th Cir. 2017); see also United
States v. Lindsey (Lindsey II), 850 F.3d 1009 (9th Cir. 2017).
This court gave the parties in the present case an opportunity
to discuss the recent materiality case law.
In his optional supplemental memoranda, Shin argues
that Escobar articulates a new standard of materiality that
2

should be retroactively applied to his circumstances, and that
Lindsey II confirms this.

Particularly with respect to his

request for a writ of audita querela, Shin says that, under
Escobar, he could have raised a defense to the false claim
charge that he could not have availed himself of at the time he
pled guilty.

Shin reads Escobar as saying that, in the context

of a false claim charge, the relevant evidence concerns whether
the particular government decision-maker was affected by (or
would have been affected by) the false statement, not whether
the statement had the propensity to influence a decision.

That

is, Shin contends that, under Escobar, a false statement is
material only if the particular government official in issue
subjectively relied on it (or would have relied on it), and that
materiality is not viewed objectively.

Shin adds that, under

the new subjective standard he says Escobar established, a jury
would have likely acquitted him of the false statement charge in
light of evidence that the Navy official with “ultimate
approving authority” for government contracts would have
approved the contract in issue even knowing that Shin had made
false statements.
Although Shin says that these arguments also apply to
his petition for a writ of coram nobis, he does not specifically
analyze Escobar or Lindsey II in the coram nobis context,
despite this court’s invitation that he do so.
3

Instead, Shin

asks this court to allow him to amend his Verified Petition to
include a request for coram nobis relief based on Escobar.

He

signals to this court that, if denied relief in the present
order and if also denied a chance to amend his petition, he will
reserve these arguments for a motion for reconsideration and an
appeal.
This court denies Shin’s petition for a writ of coram
nobis and a writ of audita querela.

The court also denies

Shin’s motion to amend his Verified Petition to raise Escobar in
the coram nobis context.

Having allowed Shin to argue any

impact Escobar or Lindsey II may have on his coram nobis
argument, this court concludes that it may proceed to determine
that impact on the present record.

This court further concludes

that Shin is not entitled to further discovery or a hearing on
his petition.
The present order replaces and supersedes this court’s
earlier order denying coram nobis relief and reserving any
decision as to audita querela relief.

That earlier order, filed

on September 1, 2016, preceded the issuance of the Lindsey II
opinion and the filing of additional briefs.
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,
4

James Lee.

See ECF No. 91 in Crim. No. 04-00150 SOM,

PageID # 249.

(All ECF and PageID references are to Crim No.

04-00150, rather than to the companion civil case.)
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 # 250-51.

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 to cover overhead and
profit, thereby arriving at the contract cost.

See id.

JHL anticipated that the unit prices would exceed
JHL’s actual costs.

See id., PageID #s 253-54.

Because JHL

would make a profit without adding any coefficient, JHL proposed
a zero percent coefficient and was awarded a zero coefficient
contract.

See id.
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., PageID # 249-54.

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.

See id., PageID #s 254-55.

The Navy was under

pressure to award a number of work orders by the end of the
5

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.
PageID #s 259-60; ECF No. 100, PageID # 395.

See id.,
The costs were not

broken down, and he could not tell how the final number had been
reached.

See ECF No. 100, PageID # 395.

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.
96.

See id., PageID #s 395-

The second proposal did not include either a line item

breakdown of costs or the requested subcontractor quotes.
id., PageID # 396.

See

Choy asked Ching to get 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.

6

See ECF No. 64, ¶ 15.

HSI

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

See id.; see

also ECF No. 91, PageID # 264.
As directed by the FBI, HSI then gave Shin the
requested quote with the inflated price.
ECF No. 91, PageID # 265.

See ECF No. 64, ¶ 17;

However, instead of submitting this

quote to the Navy, Shin submitted HSI’s quote from July 10,
2003, which concerned work on Pump # 1.
ECF No. 91, PageID # 264-65.

See ECF No. 64, ¶ 17;

Shin used white-out to alter the

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

See ECF

No. 64, ¶ 17.
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.

See id., ¶ 18.

Shin with the requested quote for $557,260.

Conhagen provided
See id.

On September 8, 2003, Shin met with Choy and Ching to
give them the altered HSI and Conhagen quotes.
ECF No. 91, PageID # 264.

See id., ¶ 19;

Shin ultimately submitted JHL’s best

and final offer of $2,150,000.

See ECF No. 64, ¶ 19; ECF

No. 91, PageID # 269-70.
On September 23, 2003, federal agents executed a
search warrant at Shin’s business office.
PageID # 266.

See ECF No. 91,

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
7

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.

See ECF No. 1.

On April 21, 2004,

pursuant to a plea agreement, Shin pled guilty to that charge.
See ECF No. 8.

On March 8, 2006, Shin was sentenced to three

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

See ECF No. 62,

PageID #s 140-43.
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 chance to recover overhead and profit.
PageID #s 337-40.

See ECF No. 99,

Shin contended that he had altered the

subcontractor quotes only to recover a reasonable profit on the
8

job.

See id., PageID #s 340-41.

He denied any malicious

intent, but acknowledged that the way he had handled the
situation was wrong.

See id., PageID #s 342-43, 372.

This

court determined that “there was clearly an intent to deceive,”
see id., PageID # 352, and called the offense “one of these
dishonesty kinds of crimes,” see id., PageID # 368, 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.
After 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.
PageID # 271.

See ECF No. 91,

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.
PageID #s 271-72.

See id.,

Eventually, in approximately April 2014, Choy

provided Shin with 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, but that that was a contractual rather
9

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,

PageID # 307.
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 taped the conversation.
PageID #s 470-91.

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.

See ECF No. 91, PageID #s 277-78.

also allegedly told Shin:

Choy

1) the prosecuting authorities “put

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 “heard what they
wanted to hear to make their case”; and 4) a declaration that
10

the prosecuting authorities had had Choy sign was “sneaky” and
“twisted” 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.
PageID #s 600-01.

See ECF No. 117,

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., PageID # 601.

On September 1, 2016, this court denied Shin’s
petition for a writ of coram nobis and invited Shin to submit an
optional supplemental memorandum regarding his alternative
request for a writ of audita querela.

See Order Denying

Defendant’s Petition for Writ of Error Coram Nobis, and Inviting
Supplementation of Alternative Petition for Writ of Audita
11

Querela, ECF No. 126, PageID # 651.

This court again deferred

any ruling on Shin’s discovery request to the extent it related
to his request for a writ of audita querela.

See id.

Shin’s optional supplemental memorandum argues that,
in Universal Health Services, Inc. v. United States ex rel.
Escobar, 136 S. Ct. 1989 (2016), the Supreme Court set forth a
new definition of materiality that is retroactive and that
provides Shin with a defense that was not available to him at
the time judgment was entered.

See Shin’s Supplemental

Memorandum Regarding His Motion for Writ of Audita Querela and
Motion to Amend Petition, ECF No. 135, PageID #s 746-50.

Shin

asserts that, given this new definition, his conviction should
be vacated as defective.

See id.

Specifically, he contends

that Escobar creates a new subjective materiality standard for
false statement claims, replacing the former objective
materiality standard.

See id., PageID #s 746-49.

Shin says

that, under this new standard, his lies were immaterial if the
Government would have awarded the contract to him even knowing
that his subcontractor quotations were inflated.

See id.,

PageID #s 746-47, 751-53.
The Government counters that Escobar did not change
the law relating to materiality and thus did not create a legal
defect in Shin’s conviction.

See Government’s Opposition to

Shin’s Motion for Writ of Audita Querela, ECF No. 136,
12

PageID # 757.

The Government contends that Escobar “simply

applied the accepted definition [of materiality] to a particular
context.”

See id., PageID # 760.
In responding to the Government’s opposition, Shin

submitted a declaration by Robert Hokama, who allegedly had the
“ultimate” authority to approve the contract.

Hokama “would

have approved the contract even if aware of SHIN’s alteration of
the subcontractor bids.”

See Responding Memorandum Regarding

Shin’s Motion for Writ of Audita Querela, ECF No. 139,
PageID #s 776-77.

Shin points to Hokama’s statement as “very

strong evidence” under Escobar that Shin’s false statements were
not material.

See id., PageID # 777.

From 1997 to 2004, Hokama was the Director of
Procurement Operations Division at Pearl Harbor responsible for
contracting activity relating to the procurement for
construction and maintenance of naval facilities.

See

Declaration of Robert T. Hokama, ECF No. 139-1, PageID # 780.
He supervised Annette Ching and was responsible for negotiating
and recommending the contract awarded to JHL in 2003.
PageID # 781.

See id.,

Hokama suggests that Ching did not follow certain

procedures necessary to awarding contracts and states that he
was “the ultimate decision-maker regarding whether to award the
Contract or not” to JHL and Shin.
Hokama further states,
13

See id., PageID #s 781-82.

I would have considered Shin’s alteration of
the subcontractor quotes as his effort to
put JHL’s proposal in a form appropriate for
consideration and approval by the Government
considering the Government’s choice of a JOC
for the Contract, so his alteration of the
subcontractor quotes would not have been
material to me. This way, the Contract
would have been awarded at a fair price to
both the Government and JHL, and the funding
for the Contract would not have been lost.
. . .
[Choy’s] Government Estimate was prepared
with a contract coefficient, and JHL’s best
and final offer, including the altered
subcontractor quotes, was very close to the
amount of the Government Estimate. This is
also a reason why the altered subcontractor
bids, which contained amounts covering
overhead and profit because of the task
order’s out-of-scope nature, would not be
material to my decision to award the
Contract to JHL as its best and final offer.
See id., PageID #s 782-83.
On November 9, 2016, this court stayed its ruling on
the audita querela issue pending the disposition of the
rehearing motion before the Ninth Circuit in United States v.
Lindsey.

See ECF No. 146.

Following the issuance of the

Lindsey II opinion, this court invited the parties to file
memoranda “addressing the new Lindsey decision and its impact,
if any on Mr. Shin’s petition (whether in the coram nobis or the
audita querela context, or both).”

See ECF No. 150.

Just as they had dueling positions as to Escobar, the
parties disagree on how to read Lindsey II.

14

According to Shin,

a “subjective standard should now apply to ‘materiality’”
pursuant to Lindsey II.

ECF No. 157, PageID # 865.

Shin says

that Escobar stands for the proposition that “if the Government
pays a particular claim in full despite its actual knowledge
that certain requirements were violated, that is very strong
evidence that those requirements are not material.”
PageID # 866.

Id.,

Because Hokama would have approved JHL’s proposal

even had he known of the inflated subcontractor quotes, Shin
says his conviction should be vacated.

Id., PageID #s 865, 870-

72.
Shin submits yet another declaration from Hokama, this
one noting that Hokama’s certificate of appointment “stated no
limitation on the scope of [his] authority, other than
limitations contained in applicable law or regulation.”

See

Supplemental Declaration of Robert T. Hokama, ECF No. 157-1,
PageID # 873.

As the “designated contracting officer with

highest authority for NAVFAC,” he says that he “enjoyed a wide
latitude to exercise business judgment.”

Id., PageID # 874.

Hokama further states, “The U.S. Government is not one
monolithic entity which decides contracting issues uniformly
across every aspect of the procurement process.”

Id.

He “would

have approved of the JHL Pump 2 contract even with knowledge
that Mr. SHIN provided altered subcontract bids and would not

15

have considered the alterations by Mr. Shin ‘material’.”

Id.,

PageID # 875.
The Government points out that Shin offers no evidence
of a systemic practice of ignoring the use of altered documents
or a contractor’s stated costs in determining whether bid prices
are fair and reasonable.
III.

ECF No. 156, PageID # 861.

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, 511 (1954), the Supreme Court held that district courts
still retain 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).
16

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).
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
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).
1.

Shin Satisfies the First Three of the Four
Requirements for the Issuance of a Writ of
Coram Nobis.

Shin satisfies three of the four requirements for the
issuance of a writ of coram nobis. 1

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 of counsel or any
upward departure by the court. See ECF No. 8. Although Shin’s
17

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”).
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 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.
id., PageID # 297.

See

The Ninth Circuit has “repeatedly affirmed

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

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.
18

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 ECF No. 91, PageID #s 294-95.

petition in September 2015.

Shin filed his

See id., PageID # 305.

To the

extent Shin relies on Escobar and Lindsey II, those decisions
issued after Shin had filed the petition before this court.
These circumstances provide valid reasons for Shin’s failure to
file his petition earlier.
2.

Shin Does Not Satisfy the Fourth Factor (a
Fundamental Error Rendering His Conviction
Invalid) Required for the Issuance of a Writ
of Coram Nobis.

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.

at 502; Hirabayashi, 828 F.2d at 604; see also United States v.
George, 676 F.3d 249, 258 (1st Cir. 2012) (“[A]n error of the
most fundamental character must denote something more than an
error simpliciter” (citation and internal quotations omitted)).
The Supreme Court and the Ninth Circuit have
identified a limited number of fundamental errors, including
ineffective assistance of counsel, see United States v.

19

Ifenatuora, 586 F. App’x 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 the burden of proving an essential
element of the offense, see United States v. McClelland, 941
F.2d 999, 1003 (9th Cir. 1991); and the nondisclosure of
exculpatory evidence in violation of Brady, see Ikbal v. United
States, 304 F. App’x 604, 606-07 (9th Cir. 2008).
The only error Shin initially identified that falls
within the errors described above is what he alleges was the
Government’s Brady violation.

According to Shin, the Government

failed to disclose key evidence that was exculpatory and
material to the defense for impeachment purposes.

See ECF No.

91, PageID # 243-45.
Generally, there are three components to a Brady
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 Turner v. United States, No. 15-1503, 2017 WL 2674152,
20

at *8-9 (U.S. June 22, 2017) (focusing on whether petitioners
established prejudice and materiality of withheld evidence,
including whether there was a “reasonable probability that, had
the evidence been disclosed, the result of the proceeding would
have been different”); Hamilton v. Ayers, 583 F.3d 1100, 1110
(9th Cir. 2009) (analyzing alleged Brady violation and
concluding defendant was not prejudiced).
In United States v. Ruiz, 536 U.S. 622 (2002), the
Supreme Court held that “the Constitution does not require the
Government to disclose material impeachment evidence prior to
entering a plea agreement with a criminal defendant.”
633.

Id. at

See also United States v. Eltringham, 550 F. App’x 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
21

his right to remain silent, his right to a jury
trial, or his 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 evidence
that was only impeaching 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

22

(9th Cir. 2008) (quoting United States v. Atalig, 502 F.3d 1063,
1066 (9th Cir. 2007)).
Shin does not dispute that he made a false statement
to the Government in submitting a project bid with subcontractor
quotes that were inflated by a total of $380,000.
No. 91, PageID #s 266-67.

See ECF

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., PageID #s 279-81.

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).

“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.
United States v. Gaudin, 515 U.S. 506, 511-15 (1995).
23

See

As noted above, Shin’s focus on materiality has
undergone a change during the pendency of the petition now
before this court.

Shin views cases like Peterson and

Rodriguez-Rodriguez as undercut by the recent Escobar and
Lindsey II decisions.

Those decisions, issued in the course of

this case, have, according to Shin, changed the law of
materiality.

This court is not persuaded by Shin’s argument.

This court initially cited Lindsey I in considering
the Government’s appeal from a Magistrate Judge’s ruling
permitting Shin to depose Choy.

See ECF No. 117, PageID # 608.

The court’s citation, however, was to a discussion in Lindsey I
that relied on longstanding Ninth Circuit law on materiality,
not to any new discussion unique to Lindsey I.

That

longstanding Ninth Circuit law was not, like Lindsey I,
withdrawn and replaced by Lindsey II.

When the Ninth Circuit

withdrew Lindsey I and subsequently issued Lindsey II, which
expressly addressed the Supreme Court’s materiality analysis in
Escobar, this court allowed the parties to submit briefs
addressing Lindsey II.
Shin reads Escobar as having changed the wellestablished objective materiality standard to a subjective
materiality standard.

Shin also reads Lindsey II as

acknowledging the applicability of a subjective materiality
standard in false statement cases.
24

According to Shin, Escobar

creates a new legal defense that was not previously available to
him and thus creates a legal defect in his conviction.

Notably,

this “legal defect” argument goes more to the standard for a
writ of audita querela, discussed later in this order, than to
the standard for a writ of coram nobis.
Despite this court’s invitation to address how Lindsey
II affects either his coram nobis argument or his audita querela
argument, see ECF No. 150, Shin provides no specifics as to how
either Escobar or Lindsey II entitles him to coram nobis relief.
Instead, Shin says:
The question now becomes whether the Escobar
decision regarding the definition of
“materiality” is more appropriately raised in a
coram nobis or audita querela petition. If
Escobar is viewed as “clarifying” the definition
of “materiality,” then a writ of coram nobis is
more appropriate to raise the Escobar issue. If
Escobar is viewed as “creating a new definition”
of “materiality,” then audita querela applies.
In a sense, it does not matter which way this
Court views the situation because SHIN has pled
both coram nobis and audita querela petitions.
ECF No. 157, PageID # 869.

Shin had also previously stated:

Although we believe that an argument can be made
that the [Escobar] case is applicable to SHIN’s
coram nobis petition, this Court has already
dismissed the coram nobis petition (apparently
considering [Escobar] based on some of this
Court[’s] recent rulings), so we will reserve
this argument for a motion for reconsideration if
this Court dismisses SHIN’s entire Petition and
for possible appeal. If [Escobar] does not apply
to SHIN’s coram nobis petition, we believe, as
argued above, it applies to his audita querela
petition.
25

ECF No. 135, PageID # 753.
In his most recent supplemental memorandum, Shin notes
that he has previously asked this court to allow him to amend
his Verified Petition to “include allegations relating to
Escobar,” and complains that “so far, this Court has ruled based
on Lindsey I without consideration of the applicability of
Escobar to the Petition.”

ECF No. 157, PageID # 869.

This

court gave Shin an expanded word limit and additional time to
file his most recent optional memorandum to supplement prior
filings and to address the impact of recent court decisions on
his coram nobis petition.

See ECF No. 155.

It is unclear to

this court why Shin could not have raised specific arguments as
to why and how Escobar and Lindsey II entitle him to a writ of
coram nobis.
This court nevertheless considers here whether either
Escobar or Lindsey II affects Shin’s petition for a writ of
coram nobis.
In Escobar, the Supreme Court discussed materiality
and what types of evidence might be relevant to proving
materiality depending on the specific facts of a case.
Escobar, 136 S. Ct. at 2003-04.

See

Escobar concerned claims

arising under the False Claims Act.

A patient had died while

being treated at a mental health clinic by various unlicensed
and unsupervised staff in alleged violation of state Medicaid
26

regulations.

Id. at 1995-97.

The Supreme Court examined when

liability could be imposed under the FCA.

Id. at 1996.

Specifically, the Supreme Court stated,
What matters is not the label the Government
attaches to a requirement, but whether the
defendant knowingly violated a requirement
that the defendant knows is material to the
Government’s payment decision. A
misrepresentation about compliance with a
statutory, regulatory, or contractual
requirement must be material to the
Government’s payment decision in order to be
actionable under the False Claims Act.
Id.
The Court noted that the FCA definition of
“materiality” used language that had been employed to define
that term in other federal fraud statutes.

Id. at 2002.

For

example, the Court noted that Neder v. United States, 527 U.S. 1
(1999), and Kungys v. United States, 485 U.S. 759 (1988), had
used the following definition to interpret the relevant federal
fraud statutes:

“[T]he term ‘material’ means having a natural

tendency to influence, or be capable of influencing, the payment
or receipt of money or property.”

Escobar, 136 S. Ct. at 2002.

With respect to the standard that should be applied to
determining materiality in Escobar, the Supreme Court stated,
“Under any understanding of the concept, materiality ‘look[s] to
the effect on the likely or actual behavior of the recipient of
the alleged misrepresentation.’”

27

Id. (quoting 26 R. Lord,

Williston on Contracts § 69:12, p. 549 (4th ed. 2003)
(Williston)).

This standard is consistent with the objective

evaluation of materiality in Neder and Kungys.
The Supreme Court then concluded that, in the FCA
context, the Government’s provision of proof as to materiality
varied depending on the specific facts of the case:
In sum, when evaluating materiality under
the False Claims Act, the Government’s
decision to expressly identify a provision
as a condition of payment is relevant, but
not automatically dispositive. Likewise,
proof of materiality can include, but is not
necessarily limited to, evidence that the
defendant knows that the Government
consistently refuses to pay claims in the
mine run of cases based on noncompliance
with the particular statutory, regulatory,
or contractual requirement. Conversely, if
the Government pays a particular claim in
full despite its actual knowledge that
certain requirements were violated, that is
very strong evidence that those requirements
are not material. Or, if the Government
pays a particular type of claim in full
despite actual knowledge that certain
requirements were violated, and has signaled
no change in position, that is strong
evidence that the requirements are not
material.
Id. at 2003-04.

The Court thus expressly disagreed with the

view that “any statutory, regulatory, or contractual violation
is material so long as the defendant knows that the government
would be entitled to refuse payment were it aware of the
violation.”

Id. at 2004.

28

Shortly after Escobar was published, the Ninth Circuit
decided United States v. Lindsey (Lindsey I), 827 F.3d 865 (9th
Cir. 2016).

Lindsey I involved wire fraud counts arising in the

mortgage loan context.

The defendant had challenged the

materiality of false responses to lender requests.

The Ninth

Circuit adopted a “bright-line test,” holding “that when a
lender requests specific information in its loan applications,
false responses to those specific requests are objectively
material for purposes of proving fraud.”
Circuit ultimately withdrew Lindsey I.

Id. at 871.

The Ninth

See United States v.

Lindsey (Lindsey I), 854 F.3d 1047 (9th Cir. 2017) (granting
rehearing and withdrawing published opinion and companion
memorandum disposition in Lindsey I).

In United States v.

Lindsey (Lindsey II), 850 F.3d 1009 (9th Cir. 2017), the Ninth
Circuit deleted the prior reference to a “bright-line” test
under which the fact of an inquiry rendered a false response
material.

But this deletion did not signal the adoption of a

subjective standard.
In Lindsey II, the Ninth Circuit addressed the
district court’s exclusion of evidence offered by the defendant
to prove that false statements in loan applications were not
material to a lender’s decision-making.

See id. at 1013-18.

The defendant had offered evidence at trial that specific
individual lenders would have approved particular loans even
29

knowing about false statements on loan applications.
1014.

See id. at

The district court excluded that evidence, and the Ninth

Circuit concluded that evidence about particular lending
decisions, as opposed to evidence of how the lending industry
typically treated statements and requirements on loan
applications, were properly excluded.

Id. at 1015-18.

Escobar does not say that a subjective standard now
applies to any evaluation of the materiality of a false
statement.

Escobar actually relies on objective definitions of

“materiality” that the Supreme Court observed have roots in
“common-law antecedents” in the fraud context.

See Escobar, 136

S. Ct. at 2002 (quoting Neder and Kungys).
While Escobar noted that, “if the Government regularly
pays a particular type of claim in full despite actual knowledge
that certain requirements were violated, and has signaled no
change in position, that is strong evidence that the
requirements are not material,” id. at 2003-04, that statement
provided an example of the kind of evidence relevant to proving
the materiality of a false statement in the context of the False
Claims Act.

See id.

Shin is stretching that statement when he

contends that Escobar altered the decades-old objective standard
for evaluating the materiality of a false statement.

Shin’s

error is made clear by the Ninth Circuit in Lindsey II.

30

In Lindsey II, the Ninth Circuit emphasized that the
“element of materiality is evaluated under an objective test, in
which we must examine ‘the intrinsic capabilities of the false
statement itself, rather than the possibility of the actual
attainment of its end.”

850 F.3d at 1014.

The Ninth Circuit

affirmed Lindsey’s conviction, noting that “[a] false statement
is material if it objectively had a tendency to influence, or
was capable of influencing, a lender to approve a loan.”
1015 (emphasis in original) (citations omitted).

Id. at

Looking to

some of the “common-law antecedents” relied on by the Supreme
Court in Escobar, the Ninth Circuit stated, “In general a false
statement is material if it has ‘a natural tendency to
influence, or [is] capable of influencing, the decision of the
decisionmaking body to which it was addressed.’”

Id. at 1013-14

(alteration in original) (quoting Neder, 527 U.S. at 16).
Lindsey II carefully distinguished the “subjective
effect” on a victim from the “intrinsic capabilities of a
statement to influence” a decision-maker.

Id. at 1015-16.

The

Ninth Circuit observed that evidence of a particular lender’s
negligence or the intentional conduct of a particular lender in
disregarding false statements had “little relevance to whether
those statements are intrinsically able to influence a
decision.”

Id. at 1015.

“[M]ateriality is an objective

element, and an absence of reliance does not affect its
31

presence.”

Id. at 1015-16.

That is, “a victim’s intentional

disregard of relevant information is not a defense to wire fraud
and thus evidence of such disregard is not admissible as a
defense to mortgage fraud.”

Id. at 1016.

Lindsey II indicates that it is evidence of a
widespread practice, not of the individual behavior of a
specific decision-maker, that may establish materiality under an
objective standard.

Id.

When the Government is the victim of a

falsehood, the Government may be seen as “represent[ing] the
entire market for issuing federal government contracts.”
1017.

Id. at

“The weight the Government gives to a particular

statutory, regulatory, or contractual requirement is analogous
not to the weight an individual lender gives to a statement on
its loan application, but rather the weight the entire mortgage
industry gives to that type of statement.”

Id.

This

distinction underscores the objective materiality standard under
which “materiality measures natural capacity to influence, not
whether the statement actually influenced any decision.”

Id.

The reasoning of Escobar and Lindsey II makes it clear
that materiality continues to be measured under an objective
standard.

Shin conflates this objective standard with the types

of evidence that may be relevant and admissible in certain
contexts.

To address what Shin argues, this court turns now to

32

how the objective materiality standard applies to the facts of
the present case.
In focusing on materiality, Shin relies heavily on
Choy’s “clarification” statement and his statements in a later
conversation that Shin recorded.

Shin says these statements

show that the Government withheld exculpatory evidence that Choy
“was not a competent or qualified witness to testify about the
issue of ‘materiality.’”

See ECF No. 91, PageID # 244.

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
33

compliance (i.e. Contractor’s scope of work) and
provide an opinion on 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.
(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. Shinn 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. 91-2, PageID # 307 (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.

34

Even assuming the materiality analysis focuses on an
individual’s mindset, as Shin contends it should, the Government
could have used testimony by Annette Ching, the contracting
officer for the project bid, on the issue of whether Shin’s
statement was material to the decision to award the job to JHL.
Ching’s declaration indicates the type of testimony she may have
given on the Government’s behalf had 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.”

See id., PageID #s 429-30.

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

35

Choy and I could have considered in making our
decisions.
See id.

Assuming that, as Shin argues, an individual’s reaction

is relevant to establishing materiality, 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 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

36

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.

See ECF No. 117, PageID # 613.

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.

After this court issued its order referring to
possible testimony by Hokama concerning materiality, Shin filed
several memoranda 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.
followed up with declarations by Hokama.

Shin

This court recognizes

that the Government would not, after all, have called Hokama as
a materiality witness at trial if Government attorneys had known
that he would testify in accordance with his recent
declarations.

Shin’s counsel conceded, however, that he had no

information suggesting that Hokama ever communicated the content
of his declarations 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
37

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.
In any event, there is no evidence that Hokama speaks
for the Government as a whole when he says he would not have
been affected by Shin’s statements even knowing they were false.
As a contracting officer, Hokama had decision-making authority
that is more easily analogized to the decision-making authority
that an individual loan officer or particular lender may have
had in Lindsey II, not to the lending industry as a whole.

As

noted earlier, Lindsey II counsels that it is the practice of
the industry as a whole that is relevant to materiality.
F.3d at 1017.

850

Even if Hokama as an individual decision-maker

would have condoned Shin’s false statements, Hokama’s attitude
would not make the false statements material.

As the Ninth

Circuit said in Lindsey II, “Two wrongs do not make a right, and
lenders’ negligence, or even intentional disregard, cannot
excuse another’s criminal fraud.”

Id. at 1014.

This is consistent with Maslenjak v. United States,
No. 16-309, 2017 WL 2674154, at *8 (U.S. June 22, 2017), in
38

which the Supreme Court discussed the materiality of false
statements made to individual government decision-makers in the
context of immigration law.

Id. at *8.

Divna Maslenjak, who

had immigrated to the United States from Bosnia in the 1990s as
a refugee and who was later naturalized, was charged with having
“procure[d], contrary to law, naturalization” in violation of 18
U.S.C. § 1425(a).

Id. at *4.

Maslenjak was accused of having

violated § 1425(a) by allegedly knowingly making a false
statement under oath in a naturalization proceeding in violation
of 18 U.S.C. § 1015(a).

Id.

With respect to false statements made to government
officials, the Supreme Court said that “objective legal
criteria” determine “whether a false statement sufficiently
altered [] processes [so] as to have influenced an award of
citizenship.”

Id. at *8.

The Supreme Court observed that

government officials must apply immigration laws “faithfully-granting naturalization when the applicable criteria are
satisfied, and denying it when they are not.”
Kungys, 485 U.S. at 774 n.9).

Id. (citing

“The entire system, in other

words, is set up to provide little or no room for subjective
preferences or personal whims.

Because that is so, the question

of what any individual decisionmaker might have done with
accurate information is beside the point.”

Id.

The Supreme

Court further stated that a defendant in this situation “should
39

neither benefit nor suffer from a wayward official’s deviations
from legal requirements.”

Id.

That is, the actions of a

particular individual official should not affect the analysis of
whether a false statement is material.
“framed in objective terms:

Instead, the inquiry is

To decide whether a defendant

acquired citizenship by means of a lie, a jury must evaluate how
knowledge of the real facts would have affected a reasonable
government official properly applying naturalization law.”

Id.

In Escobar, the Supreme Court looked to the Government
as a whole.

Hokama’s position was akin to that of an

immigration official determining whether an applicant should or
should not be granted naturalization status.

Because our system

of Government leaves “little or no room for subjective
preferences or personal whims,” what Hokama might have done if
he had known of Shin’s lies is “beside the point” for
materiality purposes.

See id.

Under the analysis in Maslenjak,

Shin should “neither benefit nor suffer” from Hokama’s
subjective preferences.

The inquiry into the materiality of a

false statement continues to be measured under an objective
standard.
This court has read Shin’s contention 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
40

other materiality evidence.

See ECF No. 115-1, PageID # 578.

It is far-fetched that Shin, who, in 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 might have had something to say about Shin’s
false 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
41

its materiality witness.

See ECF No. 125.

According to Shin’s

counsel, Choy’s role in the Navy’s review of the JHL bid
supported Shin’s assumption that Choy was the Government’s
materiality witness.

But any assumption by Shin that Choy was

the Government’s only possible materiality witness was
unjustified.
It also bears noting that, even assuming Choy’s
individual mindset were as critical as Shin contends, 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 might 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 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
42

issues versus “technical” issues relates only to the scope of
his testimony.

That insistence does not go to whether he had

anything at all to say about materiality, assuming, as Shin
contends, that Choy’s individual mindset is relevant to
materiality.
Choy was a potential Government witness, not a
Government lawyer.

Any so-called “admission” by him about what

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 recorded conversation indicate that Choy believed Shin’s
misrepresentations were immaterial.

Even if Choy’s belief were

relevant here, there is no such indication.

During the recorded

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.

Choy

The issue--and that

wasn’t for me--that’s why it’s a contracting issue.

That wasn’t

for me to decide whether, you know, he bid--Nan, Inc. [Shin’s

43

company] bid--but realized that he needed to make profit and
overhead.”

See id., PageID # 482.
Shin again 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?

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 (“[T]hat’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.”).

44

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.
See ECF No. 91, PageID # 273 (numbers omitted); see also ECF No.
91-2, PageID # 307.

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.
money, right?”

I mean how else he going make

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, much less to the Navy, or that Choy

45

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

Nor

does Shin present any reason for this court to assume that,
applying an objective materiality standard, Shin’s false
statements were not material.

Having failed to establish there

was an actual fundamental error in his conviction, Shin is not
entitled to a writ of coram nobis.
3.

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.

46

“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).

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”).

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 factual allegations, which, if
true, would entitle the applicant to federal habeas relief.”
Schriro v. Landrigan, 550 U.S. 465, 474 (2007).
Shin’s request for an evidentiary hearing is deficient
in failing to show how such a hearing would establish the
Government’s inability to prove materiality or a Brady violation
in the form of the Government’s failure to disclose such an
alleged inability.
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
47

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
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 allegedly relating to materiality.
Nevertheless, in an abundance of caution, this court gave Shin a
further opportunity to explain whether he continued to want an
48

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.)
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.

49

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 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”).

As discussed above, however, even if
50

the court accepted these statements as true, they would not be
sufficient to show that the Government withheld exculpatory
information 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 wants to present newly
discovered evidence from Hokama that Shin’s misrepresentations
were immaterial to him.
any fundamental error.

This new evidence is not probative of
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.”).
With respect to Ching, it appears from Shin’s offer of proof
that he wants to elicit testimony that she was not the ultimate
51

decision-maker and therefore could not testify as to
materiality.

This court has discussed the materiality issue at

length earlier in this order.

In short, because materiality

continues to be 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 an ultimate decision-maker.
In many cases, an 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

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.”

Rodriguez-Rodriguez, 840 F.2d at 700.

As discussed above, Ching could even have testified as an expert
witness regarding materiality.

Shin does not show that

testimony by Ching would somehow support the issuance of a writ
52

of coram nobis.

Nor does Shin suggest how the evidentiary

hearing he requests would show that the Government as a whole
disregards false statements in circumstances analogous to those
presented by this case.
In summary, Shin fails to show that an evidentiary
hearing would support either a Brady violation or an absence of
materiality.

Even assuming that the witnesses Shin identifies

would testify in accordance with his offer of proof, none of the
witnesses would provide evidence 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).

And under the objective materiality standard

that applies even after Escobar and Lindsey II, none of the
matters Shin says he might present would show that Shin’s false
statements were immaterial.

See id.

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 could change that outcome.
B.

Writ of Audita Querela

Shin alternatively seeks a writ of audita querela that
vacates his conviction.

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

No. 135, Page ID #s 744-46.
53

“The writ of audita querela, meaning literally ‘the
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 this
writ to “extraordinary” cases presenting circumstances
compelling its use “to achieve justice.”
511.

Morgan, 346 U.S. at

“The writ is similar, but not identical, to the writ of

error coram nobis; audita quer[e]la 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.

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 querela would be the appropriate remedy.

See id. at

204 n.5 (“[W]ith section 2255 and coram nobis available to
challenge the lawfulness of conviction, several courts have
questioned, without deciding, whether audita querela survives at
54

all.”).

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.
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”).
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 querela 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 the 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.
55

“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.”

Fischer, 2014 WL 5473586, at *4.

See Doe,

120 F.3d at 204 (holding that “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”).
1.

Shin Does Not Establish That He Is Entitled
to Relief Under a Writ of Audita Querela.

In his Verified Petition, Shin does not allege a postconviction 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.

56

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 grounds that are cognizable under another form of
post-conviction relief.
Shin’s verified petition for writ of audita querela
substantively presents a claim that new evidence has arisen that
would support his defense at trial.
PageID # 304.

See ECF No. 91,

This court recognizes that the new evidence Shin

identifies was not available to him until long after he
completed serving his sentence.

While Shin’s assertion of new

evidence is akin to what might be asserted under Rule 33 of the
Federal Rules of Criminal Procedure in a motion for a new trial
based upon newly discovered evidence, Shin had no remedy under
Rule 33 because Rule 33 is inapplicable when a defendant has
pled guilty and, in any event, requires such a motion to be
filed within three years of final judgment.

See United States

v. Collins, 898 F.2d 103, 104 (9th Cir. 1990) (per curiam)
(“When the defendant has pled guilty, as here, no trial has
occurred and the Rule 33 remedy is unavailable.”); see also
United States v. Graciani, 61 F.3d 70, 78 (1st Cir. 1995) (“A
defendant who enters a guilty plea cannot thereafter use Rule 33
as a wedge to undo his acknowledgement that he committed the
offense.”).
57

But the unavailability of other relief does not
necessarily give rise to a right to a writ of audita querela.
In Valdez-Pacheco, the petitioner attempted to use the writ of
audita querela because a § 2255 habeas motion was precluded by
the Antiterrorism and Effective Death Penalty Act of 1996.
237 F.3d at 1078-79.

The Ninth Circuit affirmed the dismissal

of Valdez’s petition, explaining:
[W]e 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 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 (footnotes omitted).

In short,

a writ of audita querela is not necessarily available whenever
58

new evidence is discovered and other remedies are unavailable.
The unavailability of other remedies is a necessary condition in
the audita querela context, but it is not, on its own,
sufficient to support the issuance of the extraordinary writ.
Here, Shin tries to bolster his plea for relief with
the contention that the law has recently changed.

Shin does not

dispute that, at least at the time he pled guilty, the
materiality standard was based on an objective standard.
ECF No. 135, PageID # 747.

See

Instead, Shin clarifies that he now

has a legal objection to the judgment, which he claims has
recently arisen through Escobar.

See id.

Specifically, Shin

claims and makes an offer of proof that the inflated quotes were
immaterial, given how Choy or Hokama would have allegedly
proceeded with the contract in the face of knowledge that
subcontractor quotes were false.

See id., PageID #s 746-49.

As explained above, Shin misreads Escobar and Lindsey
II.

Escobar does not alter the applicable objective materiality

standard.

Rather, Escobar clarifies what types of evidence may

be relevant in proving materiality depending on the facts of a
particular case.

Lindsey II clearly emphasizes that materiality

continues to be evaluated under an objective standard and
applies that standard in the wire fraud context.
Nor does United States ex rel. Kelly v. Serco, Inc.,
846 F.3d 325 (9th Cir. 2017), which Shin also cites, help him.
59

Kelly involved a qui tam action under the False Claims Act.
Shin argues that Kelly applied Escobar’s purported subjective
materiality standard, which Shin contends also applies to Shin’s
case.

Kelly discusses Escobar and notes that under Escobar what

the Government “regularly” does is relevant to materiality.
id. at 334.

See

While Kelly looks at what types of evidence would

support a finding of materiality in the context of the False
Claims Act, Kelly nowhere indicates that a subjective standard
applies.

See id.

Similarly, Shin’s expectation, see ECF No.

135, PageID # 747; ECF No. 152, PageID #s 847-50, that United
States v. Green, No. 15-10554 (9th Cir.) (oral argument held on
June 14, 2017), will somehow help him is misplaced.

The three-

judge panel that decides Green will be bound not only by
Escobar, but also by Lindsey II.

Only an en banc Ninth Circuit

or the Supreme Court can overrule Lindsey II.
Shin’s focus on Hokama’s statements reflects Shin’s
mistaken belief that a subjective standard applies to the
materiality analysis.

In fact, Shin himself concedes that he

“was almost certain to be convicted at a jury trial” under the
objective materiality standard, which is why, he claims, he “had
no choice but to plead guilty” at the time.
PageID # 751.

See ECF No. 135,

In seeking a writ of audita querela, Shin

misreads Escobar and Lindsey II.

Shin is not entitled to a writ

of audita querela on the basis of that misreading.
60

2.

Shin Is Not Entitled to Further Discovery in
Support of His Request for a Writ of Audita
Querela.

Notwithstanding the concerns about Shin’s right to a
writ of audita querela and his inability to establish that he is
entitled to relief under that writ, this court recognizes that
it left pending Shin’s request to depose Choy and Ching in
support of a writ of audita querela.

This court previously

invited Shin to provide further argument and legal support
regarding the appropriate discovery standard for the writ of
audita querela, as well as an explanation as to how the
discovery he seeks would entitle him to relief under this writ,
if Shin still believed he was entitled to discovery in relation
to his request for a writ of audita querela.

See ECF No. 126,

PageID # 687.
Shin’s supplemental memoranda provide no authority
relating to the appropriate discovery standard and do not
specifically address how any discovery matter might entitle him
to a writ of audita querela.
While Shin argues that Ching’s credibility is highly
questionable, see ECF No. 135, PageID # 752, this court is not
able to discern how Ching’s credibility is relevant to Shin’s
audita querela petition.
applies.

An objective materiality standard

Even if, as Shin argues, a subjective materiality

standard applied, it would not help with respect to Ching.
61

The

record reflects that Ching did not know Shin had lied prior to
being informed of that by the FBI.
PageID # 431.

See ECF No. 100-3,

It is thus difficult to see how Ching’s attitude

toward Shin’s lies might help Shin.
Shin’s request to depose Choy and Ching is denied.
Shin has not demonstrated that he is entitled to discovery or
any further hearing in relation to his request for a writ of
audita querela.
IV.

CONCLUSION.
This court denies Shin’s petition for a writ of coram

nobis or alternatively for a writ of audita querela.

Shin’s

motion to amend his petition is also denied.
Shin’s request for an evidentiary hearing and further
discovery is denied.

This court directs the Clerk of Court to

enter judgment against Shin and to close Civil No. 15-00377.
IT IS SO ORDERED.
DATED: Honolulu, Hawaii, June 28, 2017.

/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; AMENDED ORDER DENYING DEFENDANT’S PETITION FOR
WRIT OF ERROR CORAM NOBIS; ORDER DENYING ALTERNATIVE PETITION FOR WRIT OF
AUDITA QUERELA.

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