Patrick Shin v. United States ( 2023 )

NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS MAR 15 2023
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
PATRICK SHIN, No. 21-16833
Petitioner-Appellant, D.C. Nos.
1:20-cv-00390-SOM-KJM
v. 1:04-cr-00150-SOM-1
UNITED STATES OF AMERICA,
MEMORANDUM*
Respondent-Appellee.
Appeal from the United States District Court
for the District of Hawaii
Susan O. Mollway, District Judge, Presiding
Submitted February 16, 2023**
Honolulu, Hawaii
Before: BEA, COLLINS, and LEE, Circuit Judges.
Concurrence by Judge COLLINS.
Petitioner-Appellant Patrick Shin appeals a district court order denying his
second petition for a writ of coram nobis. Shin’s second petition requests that the
district court vacate the judgment entering a conviction against him for violating 18
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
**
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
U.S.C. § 1001(a)(3), which judgment was entered after he pleaded guilty to having
willfully made a false statement to the United States Navy in connection with a
proposal for the completion of a naval contract. Shin believes that he merits this
unusual remedy because he contends that his guilty plea was made involuntarily;
namely, he argues that he would have chosen not to plead guilty and instead would
have gone to trial had he been properly informed of the correct mens rea standard
required for a conviction under 18 U.S.C. § 1001(a)(3). The parties are familiar with
the facts of this case, so we do not recite them here. We have jurisdiction over this
appeal pursuant to 28 U.S.C. § 1291. We affirm the district court’s order denying
Shin’s petition for a second writ of coram nobis.
1. We review the district court’s denial of a writ of coram nobis de novo.
United States v. Riedl, 496 F.3d 1003, 1005 (9th Cir. 2007). But any factual findings
underlying the district court’s decision are reviewed for clear error. Hirabayashi v.
United States, 828 F.2d 591, 594 (9th Cir. 1987). Namely, “we will affirm a district
court’s factual finding unless that finding is illogical, implausible, or without support
in inferences that may be drawn from the record.” United States v. Hinkson, 585
F.3d 1247, 1263 (9th Cir. 2009) (en banc).
2. For Shin to be entitled to coram nobis relief, he must show that “(1) a more
usual remedy is not available; (2) valid reasons exist for not attacking the conviction
earlier; (3) adverse consequences exist from the conviction sufficient to satisfy the
2
case or controversy requirement of Article III; and (4) the error is of the most
fundamental character.” Hirabayashi, 828 F.2d at 603. We agree with the district
court that Shin has failed to demonstrate that there was an “error of the most
fundamental character” in the judgment entering a conviction against him in light of
his guilty plea.1 Id. While Shin is correct to identify caselaw showing that a guilty
plea made based on a misunderstanding of the applicable legal standard can be
deemed involuntary and therefore constitute a fundamental error, United States v.
Kwan, 407 F.3d 1005, 1014–18 (9th Cir. 2005) abrogated on other grounds by
Padilla v. Kentucky, 559 U.S. 356, 370 (2010), Shin has failed to demonstrate that
he was prejudiced by his not being made aware of the proper mens rea standard
under 18 U.S.C. § 1001(a)(3). Namely, Shin has failed to show that there was “a
reasonable probability that he would have proceeded to trial had he been properly
informed of the elements of the offense.” United States v. Werle, 35 F.4th 1195,
1202 (9th Cir. 2022). Simply, because the question of reasonable probability “is a
factual question” and because Shin has failed to explain why the district court’s
factual findings were clearly erroneous, there was no prejudice that rendered Shin’s
guilty plea involuntary. Id.1
Although the district court also found that Shin had failed to explain why he had
waited so long to raise this challenge to his conviction, which holding the
government defends on appeal, we decline to evaluate the issue considering Shin
fails to satisfy his burden on the fundamental error prong of the coram nobis analysis.
3
3. Shin is correct that the governing body of law interpreting 18 U.S.C. §
1001(a)(3) at the time of his guilty plea in 2004 applied the incorrect mens rea
standard. The caselaw required the government to prove only that the defendant
made the false statement “deliberately and with knowledge,” United States v.
Carrier, 654 F.2d 559, 561 (9th Cir. 1981), despite the fact that willfulness, as
subsequently interpreted by the Supreme Court and recognized by this Circuit,
requires the government to prove that a defendant “acted with knowledge that his
conduct was unlawful.” United States v. Ajoku, 584 F. App’x 824 (9th Cir. 2014)
(emphasis added) (quoting Bryan v. United States, 524 U.S. 184, 191–92 (1998)).
4. But as the district court ably pointed out, Shin’s own colloquy with the
sentencing court reveals that he was fully aware that his conduct was unlawful. Shin
repeatedly reiterated his understanding that his submission of inflated subcontractor
bid prices was “wrong.” And he admitted that his submission of false subcontractor
bid prices was done with the intention of benefiting his company by permitting it to
make a profit on the contract. While an individual can view something as morally
wrong without believing that there is illegal activity afoot, the district court was
correct to note that Shin made these concessions about his own wrongdoing in the
presence of “FBI agents and federal prosecutors [who] are not searching to convict
people who have committed sins or immoral acts.” These observations all support
the district court’s sensible conclusion that Shin’s repeated admission of wrongdoing
4
in the presence of governmental investigators evinced his knowledge that he had
engaged in illegal activity when submitting a proposal containing inflated
subcontractor bid prices.
5. Even if we were to set aside Shin’s colloquy during the sentencing hearing,
the district court identified other facts in the record that strongly support its
conclusion that Shin knew his behavior was illegal. Shin acknowledged that he was
an experienced contractor and understood the contracting process well. As a result,
the district court plausibly concluded that the jury would have balked at Shin’s
current argument that despite his extensive federal contracting background, he was
unaware of the (rather self-evident) illegality of submitting forged documents or
false information to the government. And this inference is further substantiated by
the fact that Shin readily admitted that he spent nearly 20 minutes with a copier to
create the inflated bid price by papering over the “1” digit with a “3” to hide any
evidence of his alterations from a casual observer. That alteration resulted in a
demand for an additional $200,000 to be paid under the now-altered contract. An
individual that takes great pains to conceal the fact that the document that he is
submitting to the government was altered for the express purpose of requesting more
money for a contract—especially one who has ample experience as a federal
contractor and knows that he is obligated to tell the truth—is clearly aware that the
submission of false subcontractor bid prices is both wrong and illegal.
5
6. Shin’s only argument to the contrary that he could not have known he was
engaged in illegal activity because he never intended to bilk the government of more
money than he believed that he was owed is simply unpersuasive.
First, whether a government official viewed the proposed (but inflated) price
of the contract to be fair speaks to the materiality element of the crime,2 not to Shin’s
knowledge of wrongdoing. Cf. United States v. Lindsey, 850 F.3d 1009, 1013–14
(9th Cir. 2017) (reviewing whether the government actually relied on a false
statement under the materiality prong of a wire fraud statute).
Second, Shin misunderstands the mens rea standard when he contends that the
government was required to prove that he intended to cheat the government out of
money and that a “white lie” that allows the contract to be completed before the end
of the fiscal year somehow shields him from criminal liability. Quite simply, one
can have knowledge of being engaged in illegal behavior while still believing that
the reasons for knowingly engaging in that illegal activity are honorable: Robin
Hood is often celebrated as a noble hero for helping the poor, even though he
knowingly engaged in theft and grand larceny in the process. See Dixon v. United
States, 548 U.S. 1, 5–7 (2006) (explaining that an individual can willfully lie to
2
Whether there was a fundamental error in Shin’s guilty plea as it relates to the
materiality element of his crime is a challenge that is now foreclosed by this Court’s
affirmance of a district court’s order denying Shin’s first petition for a writ of coram
nobis. Shin v. United States, 782 F. App’x 595 (9th Cir. 2019).
6
obtain a firearm even if her “will was overborne by the threats made against her and
her daughters, [because] she still knew that she was making false statements and
knew that she was breaking the law by buying a firearm”). Thus, Shin’s repeated
assertion that his reasons for lying were admirable—to ensure that the government’s
contract could be completed before its funding lapsed—does not negate his
satisfying the mens rea of knowingly engaging in illegal activity. Namely, his
motives do not undermine the strong inferences drawn from the other evidence in
the record, which inferences evince Shin’s knowledge that he had engaged in illegal
activity: his clandestine behavior, his consistent refrain to investigators and the court
that his falsifying the subcontractors’ bid prices was wrong, and his
acknowledgement that as a long-time federal contractor, he understood the
contracting process and knew that he was required to be truthful in all submissions
made to the government.3
3
In light of Shin’s misunderstanding of the mens rea standard required under 18
U.S.C. § 1001(a)(3), we see no reason to upset the district court’s conclusion that
the testimony from Shin and his attorney are not persuasive even though the court
did not find that they were deliberately untruthful. As the Supreme Court recently
explained,
credibility and persuasiveness are closely bound concepts, [and]
sometimes treated interchangeably . . . . [But i]t's easy enough to
imagine that a factfinder might not describe the plaintiff as lacking
credibility—in the sense that she was lying or not “worthy of belief,”
Black's Law Dictionary 448 (10th ed. 2014) (defining “credibility”)—
yet [still] find that her testimony on a key fact was outweighed by other
7
7. Because the district court’s factual findings regarding Shin’s knowledge
that his wrongdoing was both morally wrong and illegal are well-supported by
inferences drawn from the record, we conclude that Shin has failed to demonstrate
that there was a reasonable probability that he would not have entered a guilty plea
had he been informed that 18 U.S.C. § 1001(a)(3) required the government to prove
that he knew that his falsifying of the subcontractor bid prices was illegal. Namely,
Shin’s own repeated admission of wrongdoing, which evinced his knowledge of
illegality, forecloses any probability that Shin would have chosen not to plead guilty
had his attorney or the court properly instructed him on the correct mens rea
standard. United States v. Pollard, 20 F.4th 1252, 1257 (9th Cir. 2021) (rejecting
defendant’s “bare assertion on collateral review that he would not have pled guilty”
evidence and thus unpersuasive or insufficient.
Garland v. Dai, 141 S. Ct. 1669, 1680–81 (2021). Just so here: while Shin and his
attorney might not lack credibility in asserting that Shin would have wanted to go to
trial had the government been required to prove that Shin had a nefarious intent to
cheat the Navy of money, their mistaken impression of the proper mens rea standard
under 18 U.S.C. § 1001(a)(3) undermines their testimony’s persuasiveness regarding
the contention that Shin would not have entered a guilty plea had he been told that
willfulness required knowledge of illegality. Considering the rest of the record
uniformly suggests that Shin knew that his falsifying of the subcontractor bid prices
was illegal, the district court did not clearly err in rejecting the testimony from Shin
and his attorney as unpersuasive—their testimony carries little probative value in
light of the contrary inferences drawn from the rest of the record. Hinkson, 585 F.3d
at 1263. Thus, we conclude that the district court’s holding that the failure to inform
Shin of the proper mens rea standard for a conviction under 18 U.S.C. § 1001(a)(3)
was harmless is well-reasoned and supported by the record.
8
after reviewing testimony from the defendant’s original plea colloquy and
concluding that the “writing [was] on the wall”). Shin therefore suffered no
prejudice from the legal mistake, which means that his guilty plea was voluntary.
And as his guilty plea was voluntary, Shin has failed to demonstrate that there was
a fundamental error in the judgment entering his conviction for violation of 18
U.S.C. § 1001(a)(3).
Thus, Shin is not entitled to relief and the district court correctly denied his
second petition for a writ of coram nobis.
AFFIRMED
9
FILED
MAR 15 2023
Shin v. United States, No. 21-16833
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
COLLINS, Circuit Judge, concurring in the judgment:
I concur in the majority’s judgment affirming the denial of Shin’s second
petition for a writ of coram nobis. But I do so on the alternative ground that the
district court correctly concluded that Shin has failed to establish that “valid
reasons exist for not attacking the conviction earlier.” Hirabayashi v. United
States, 828 F.2d 591, 603 (9th Cir. 1987).
Shin filed his first coram nobis petition, which raised a Brady issue, in
September 2015. The district court denied that petition in June 2017, and we
affirmed that dismissal in July 2019. See Shin v. United States, 782 F. App’x. 595,
596–97 (9th Cir. 2019). The Supreme Court denied review in February 2020. See
Shin v. United States, 140 S. Ct. 1123 (2020). Shin filed the instant petition on
September 11, 2020—some 16 years after his guilty plea and nearly five years
after filing his first petition. In this new petition, Shin asserted for the first time
that his 2004 guilty plea to a violation of 18 U.S.C. § 1001 was involuntary
because he had not been informed that one of the elements of that offense is that he
knew that his conduct was unlawful.
In justifying his delay in filing this second petition, Shin provided two
reasons, but neither suffices.
First, Shin argued that courts in the Ninth Circuit had been slow to recognize
that, under Bryan v. United States, 524 U.S. 184 (1998), the scienter required to
establish a violation of 18 U.S.C. § 1001 assertedly requires a showing that the
defendant was aware that his conduct was unlawful. “The Ninth Circuit did not
change course,” he argued, until its pattern jury instructions were amended in 2016
to formally reflect that requirement. This argument fails both factually and legally.
As the district court noted, the pattern instruction had actually been changed in this
respect in 2014, not 2016. And as we have held, “a lack of clarity in the law is not
itself a valid reason to delay filing a coram nobis petition.” United States v.
Kroytor, 977 F.3d 957, 962 (9th Cir. 2020). “If there is a reasonable basis in
existing law for a claim”—even one that involves “extending, modifying, or
reversing existing law or . . . establishing new law”—the “petitioner should raise
it.” Id. (emphasis omitted) (citation omitted). The legal materials cited in Shin’s
own petition make overwhelmingly clear that there was ample “reasonable basis”
for asserting this claim long before September 2020.
Second, Shin contended that his postconviction counsel who filed his first
coram nobis petition—who had also acted as his defense counsel in connection
with his 2004 guilty plea—was ineffective for failing to raise the issue earlier. But
as the Supreme Court recently reiterated, a petitioner seeking postconviction relief
“bears the risk” for all errors made by his attorney, who is his agent, unless that
assistance is constitutionally ineffective.” Shinn v. Ramirez, 142 S. Ct. 1718, 1735
2
(2022) (emphasis added) (citations omitted). And “because there is no
constitutional right to counsel in state [or federal] postconviction proceedings,”
that means that a petitioner “ordinarily must bear responsibility for all attorney
errors during those proceedings.” Id.Although Shinn involved a habeas petition filed by a state prisoner, its
reasoning reflects not just state-federal comity concerns, but also important
interests in “finality” and “the orderly administration of justice.” 142 S. Ct. at
1733; see also id. at 1739 (“Serial relitigation of final convictions undermines the
finality that ‘is essential to both the retributive and deterrent functions of criminal
law.’” (citation omitted)). As such, Shinn’s reasoning necessarily extends to all
“postconviction proceedings,” including coram nobis petitions. See also Chaidez
v. United States, 568 U.S. 342, 348 (2013) (holding that the nonretroactivity rule of
Teague v. Lane, 489 U.S. 288 (1989), applies to a “habeas or similar proceeding,”
including coram nobis); United States v. Denedo, 556 U.S. 904, 916 (2009) (stating
that “judgment finality is not to be lightly cast aside; and courts must be cautious
so that the extraordinary remedy of coram nobis issues only in extreme cases”).
Accordingly, to the extent that our decision in United States v. Kwan, 407 F.3d
1005 (9th Cir. 2005), might be read to suggest that mistakes by postconviction
counsel may justify the delayed filing of a coram nobis petition, it has been
abrogated by Shinn. See Miller v. Gammie, 335 F.3d 889, 899–900 (9th Cir. 2003
3
(en banc). Moreover, we squarely held in Kroytor that the petitioner’s coram nobis
petition was unjustifiably delayed despite the fact that, when the petitioner hired
counsel to inquire about challenging his conviction, “his post-conviction attorney
did not act with the necessary expediency” because counsel was “uncertain” about
the state of the law upon which the challenge would be based. 977 F.3d at 960,
963. As the district court here correctly observed, “[i]t is difficult to see why
Shin’s delay should be found justified when the delay[] by . . . Kroytor w[as] not.”
I would therefore affirm the district court’s denial of Shin’s second coram
nobis petition on the ground that Shin unjustifiably delayed in raising the claim
that petition asserts. On that basis, I concur in the judgment.
4