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United States District Court, N.D. California

August 9, 2005.

JOAN McKENNA, Defendant.

The opinion of the court was delivered by: CHARLES BREYER, District Judge


Defendant Joan McKenna was convicted in federal court of two counts of perjury in violation of 18 U.S.C. section 1621 and one count of making a false declaration under oath in violation of 18 U.S.C. section 1623(a). The Ninth Circuit affirmed her conviction in a published opinion. United States v. McKenna, 327 F.3d 830 (9th Cir. 2003). Now pending before the Court is McKenna's motion for habeas corpus relief pursuant to 28 U.S.C. section 2255. As the relevant background facts are exhaustively set forth in the Ninth Circuit's opinion, the Court will not repeat them here.

After carefully reviewing McKenna's voluminous submission, including the attached exhibits, as well as the file and records of the case, the Court concludes that these documents "conclusively show" that McKenna is not entitled to relief. See 28 U.S.C. § 2255. DISCUSSION

  I. Ineffective Assistance of Counsel Generally

  McKenna first alleges that her trial and appellate counsel engaged in a litany of acts and omissions that constitute ineffective assistance of counsel. To prevail, McKenna must show that her counsels' representation fell below an objective standard of reasonableness and that it resulted in prejudice. See Strickland v. Washington, 466 U.S. 668, 687-80 (1984). None of McKenna's claims meets this standard.

  A. Failure to require government to meet its burden

  McKenna appears to contend that her trial counsels' lack of experience with perjury cases caused them to fail to require the government to prove all of the elements of perjury. This claim is flatly refuted by the Ninth Circuit's opinion. The court concluded that the verdict was supported by substantial evidence. 327 F.3d at 838-42. The Ninth Circuit's holding, and her conviction, also doom her claim that her counsel should have challenged her prosecution as frivolous. Her complaint about counsels' failure to object to the verdict form fails for a similar reason: the Ninth Circuit held that the verdict form was proper. Id. at 843.

  B. Failure to admit certain evidence

  McKenna places particular emphasis on her counsels' failure to admit any evidence from her civil trial pursuant to a stipulation with the government. She contends: "The harm done to McKenna's case by this single act was enormous: it barred McKenna's defense from bringing forth documents, testimony, and expert witnesses from the civil case that would have exonerated her." Petition at 19 (emphasis in original).

  As a preliminary matter, the Court notes that it can find no record of such a stipulation. McKenna's habeas petition claims the stipulation is located behind exhibit A to her petition, but exhibit A is empty in both the chamber's copy and the file copy of the amended petition. The Court's own review of the file failed to produce any such stipulation. Moreover, the parties' stipulations were read to the jury, and the stipulation to which McKenna refers was not included. Trial Transcript at 244-45. In any event, assuming there was such a stipulation, McKenna fails to show that her counsels' decision to enter into the agreement was unreasonable or prejudiced her defense. Many of the documents she claims her attorneys should have admitted, such as medical records, are relevant, if at all, to the first count of the indictment, that is, the claim she perjured herself at her first deposition by failing to disclose her November 1994 accident. See, e.g., Appendix at 58 n. 8. McKenna, however, was not convicted of that charge; instead, she was convicted of lying about the court reporter's equipment malfunction and disclosing the accident to Dr. Prieto. Moreover, none of the evidence from the civil trial that she claims impeaches several government witnesses in fact does so to the extent that her counsels' alleged failure to have so impeached the witnesses was below an objective standard of reasonableness.

  Furthermore, McKenna herself explains that her attorneys had a reason for entering into the stipulation; namely, they were concerned that if the civil trial documents were entered into the evidence the government would raise questions about exhibits she submitted in support of her civil case, including tax-related documents. Motion at 68 n. 26

  McKenna also fails to show that her counsels' performance was substandard based on their failure to impeach witnesses with other evidence. For example, she contends that her counsel should have impeached Dr. Prieto with evidence that he lied under oath during tax proceedings. Petition at 64 n. 16 and exhibit HC-18. The opinion in which she claims Dr. Prieto was found to have lied under oath, however, was not issued until after McKenna was convicted; thus, her counsel could not have used it for impeachment purposes. Prieto v. Commissioner of Internal Revenue, T.C. Memo 2001-266 (October 4, 2001). More importantly, McKenna mischaracterizes the opinion: nothing in the opinion can reasonably be read as a finding that Dr. Prieto lied under oath; to the contrary, the court found that Dr. Prieto had in good faith relied on a tax professional's advice.

  C. Failure to call witnesses

  McKenna also complains about her counsels' failure to call any witnesses to establish that her chiropractor's signature on a December 4, 1994 letter describing McKenna's injuries from the November 1994 accident was actually a "stamped" signature. She fails to explain, however, how a "stamped" signature versus a "live" signature makes any difference to her case. She also fails to explain how it makes any difference whether the chiropractor's letter was intended for McKenna's civil attorney or some other person. Finally, while she claims AUSA Kingston testified that the initials at the bottom of the page meant the letter was intended for McKenna's counsel, McKenna offers no evidence to support her assertion as to what Kingston testified. The Court has reviewed the transcript of AUSA Kingston's trial testimony and she at no time testified as alleged by McKenna. And again, if Kingston was incorrect, McKenna fails to show how this inaccuracy prejudiced her defense.

  McKenna also challenges her criminal counsels' decision not to call her medical expert in the civil trial, Dr. Wiemer. While Dr. Wiemer attests that if called he would have testified as to McKenna's injuries from the December 1994 accident, such testimony does not tend to prove or disprove whether McKenna lied when she testified that the court reporter's machine had malfunctioned and that she had in fact disclosed the November 1994 accident. Nor does it tend to show that she was telling the truth when she testified that she told Dr. Prieto about the November accident. While such testimony might have some limited relevance, the failure to call Dr. Wiemer as a witness was not objectively unreasonable. McKenna has also failed to show how the failure to call Dr. Wiemer prejudiced her defense. Simply saying it prejudiced her does not make it so.

  D. Failure to challenge jurisdiction

  McKenna next argues that the United States should not have been substituted for the United States Postal Service in her civil case and therefore her civil case should have been dismissed. Had it been dismissed, she argues, there would not have been any perjury prosecution.

  McKenna's argument is frivolous. It is well established that the United States must be substituted for the United States Postal Service in a Federal Tort Claims Act lawsuit. See Staple v. United States, 740 F.2d 766, 768 (9th Cir. 1984); 28 U.S.C. ¶ 2679(a). E. Failure to prove that the government violated McKenna's rights

  McKenna also contends that her counsel, including her appellate counsel, failed to produce evidence that the government had violated her due process rights by initiating a criminal investigation into her conduct in the civil case at the same time it was defending the civil case (and taking her deposition). The Ninth Circuit addressed this argument, too, referring to it as a "perjury trap" argument. 327 F.3d at 837. The court concluded that the "perjury trap" doctrine did not apply because the government questioned McKenna at her depositions and at the civil trial in its role as a defendant in the civil case. Id. at 837-38. The court also concluded that assuming arguendo the defense could apply to civil depositions or trials, it nonetheless did not apply to McKenna because she had failed to establish that the government questioned her at her subsequent depositions or at trial "for the primary purpose of securing a perjury indictment on matters that were not germane to legitimate issues in the civil proceedings." Id. at 838.

  McKenna still has not produced any evidence that suggests the primary purpose in the government's questioning of McKenna was to trap her into perjuring herself. Her counsel did not engage in ineffective assistance of counsel by failing to produce evidence that does not exist.

  McKenna's contention that the initiation of the criminal investigation made her subsequent depositions "custodial" and therefore violated her constitutional rights is incorrect as a matter of law.

  F. Other examples

  On pages 29 through 40 McKenna lists even more examples of her various counsels' alleged shortcomings. None of her arguments has any merit or requires discussion. She makes assertions without offering any evidence to support them. For example, she repeatedly makes representations as to how certain witnesses testified at trial, but she fails to identify where such alleged statements appear in the trial transcript. She also reargues issues already rejected by the Ninth Circuit on her direct appeal. In sum, she has failed to establish that her counsels' conduct fell below an objective standard of reasonableness or that she was sufficiently prejudiced by the alleged errors.

  II. Prosecutorial misconduct

  McKenna also alleges that her counsel was ineffective by failing to raise numerous instances of alleged prosecutorial misconduct. In particular, she argues that the government manufactured evidence used against McKenna, destroyed other evidence, and failed to produce exculpatory evidence. Again, McKenna offers nothing in support of these arguments other than her own unsubstantiated statements.

  For example, McKenna contends that trial Exhibit 6 — the December 1994 letter from her chiropractor describing her injuries from her November 1994 accident — was not written by her chiropractor, as the "stamped signature" suggests, but rather by the office manager, Brenda Lee. McKenna's theory appears to be that although the letter unambiguously refers to the November 3, 1994 accident, it in fact it was describing the February 1994 accident (even though the letter was written in December 1994, just after the November accident and prior to the December accident). Although she does not explain the relevance of whether her chiropractor or the office manager wrote the letter, one argument might be that the office manager was more likely to have made such a significant mistake. She claims that the government knew that Lee, and not the chiropractor, wrote the letter, and that it failed to disclose this exculpatory evidence to McKenna.

  McKenna, however, offers no evidence that Lee in fact wrote the letter or that the government knew Lee wrote the letter. She does not offer a declaration from Lee or Saeed Ghaffari, the owner of the chiropractic clinic (the treating chiropractor is deceased) to substantiate her allegation. Her brief is simply filled with assertions that are not supported by the record. Unsupported assertions do not warrant an evidentiary hearing, let alone the reversal of a conviction. Moreover, as is explained above, the relevance of who actually wrote the letter is limited. It is undisputed that McKenna was in an accident on November 3, 1994, and that she obtained a $25,000 default judgment arising from the accident. Her allegations of evidence tampering are likewise mere speculation unsupported by any evidence.

  McKenna also claims that agent Koh committed prosecutorial misconduct before the grand jury by mis-characterizing a letter McKenna's civil attorney sent to her. In the letter, McKenna's attorney states that he is withdrawing from representing her because of her failure to disclose the November 1994 accident during her July 1998 deposition and to Dr. Prieto. Before the grand jury Koh characterized the letter as stating that the attorney was withdrawing because of McKenna's testimonial omission and that he could not break the law and that under the Professional Responsibility Ethics Code he was not allowed to represent her further.

  Koh's characterization of the letter is a stretch: no where in the letter does the attorney mention any Ethics Code or breaking the law. To the contrary, he explains that because McKenna did not disclose the accident, she will not make a credible witness and will not be able to recover sufficient damages to cover her attorney's costs.

  The Court need not decide, however, whether Koh's testimony rises to the level of prosecutorial misconduct. Koh did not so testify at trial and McKenna was, of course, convicted after a jury trial. The general rule is that a conviction following a jury trial indicates that any prosecutorial misconduct before the grand jury was harm beyond a reasonable doubt. See United States v. Mechanik, 475 U.S. 66, 70 (1960). McKenna has not proffered any reason to depart from this rule here, especially since the other evidence presented to the grand jury supplied more than sufficient grounds to issue the indictment.

  Finally, McKenna claims the government threatened her civil attorney with "felonious misconduct" if he did not withdraw from representing McKenna. Her assertion, however, is based on a conversation she claims she had with her attorney's brother. She does not offer a declaration from the brother and there is no evidence in the record to support her assertion. That the Assistant United States Attorney ("AUSA") reviewed McKenna's attorney's proposed order to be relieved as counsel — an order that required the AUSA's signature — does not in any way support McKenna's accusation. III. Vindictive Prosecution

  Next McKenna argues that her counsel were ineffective because they failed to move to dismiss her indictment on the ground of vindictive prosecution. She claims that the prosecution was brought to retaliate against McKenna for attempting (unsuccessfully) to bring a Bivens claim against several government attorneys.

  Vindictive prosecution claims generally arise when the government increases the severity of charges because the defendant asserted a constitutional or statutory right. See Hooton, 662 F.2d 628, 633 (9th Cir. 1981); Blackledge v. Perry, 417 U.S. 21 (1974) (prosecutor held to have acted vindictively in bringing heightened charges on appeal). The Ninth Circuit has nonetheless recognized that vindictive prosecution claims may be appropriate when a single indictment exists. See Hooton, 662 F.2d at 634 ("This court holds that the mere filing of an indictment can support a claim of vindictive prosecution"). To establish a claim of vindictive prosecution McKenna must make an initial showing that the government filed charges against her because McKenna "exercised a statutory, procedural, or constitutional right in circumstances that give rise to an appearance of vindictiveness." United States v. Gallegos-Curiel, 681 F.2d 1164, 1168 (9th Cir. 1982). However, "the link of vindictiveness cannot be inferred simply because the prosecutor's actions followed the exercise of a right, or because they would not have been taken but for exercise of a defense right." Id.. In other words, "[a] sequence of events is not enough; the likelihood of retaliation is crucial." Id. at 1171.

  McKenna has not come close to meeting her initial burden. She merely alleges a sequence of events, that is, that she attempted to file a Bivens action against certain government attorneys and that after that attempt she was indicted. These circumstances do not create an appearance of vindictiveness, especially since the court did not allow plaintiff to pursue her Bivens' claims. Moreover, elsewhere in her habeas petition she alleges that in the Spring of 1999 the government initiated its criminal investigation. Petition at 43-44. Yet, she did not file her motion to amend her complaint to add a Bivens claim until July 1999 (HC-10), after the initiation of the supposedly vindictive investigation. Her attorneys thus did not render deficient representation by refusing to file a motion to dismiss the indictment for vindictive prosecution.

  IV. Structural Defect

  The parties stipulated that McKenna was under oath when she was deposed in July 1998 and July 1999, and again when she testified in the civil trial. Trial Transcript at 244-45. McKenna claims this stipulation led to several "structural errors."

  An element of perjury is that the defendant made a false statement under oath. See McKenna, 327 F.2d at 838. McKenna first claims that the Court erred in advising the jury that it did not have to consider the "oath" as an element of the crime of perjury. The Court did not so instruct the jury. The Court did instruct the jury that the "parties have agreed to certain facts that have been stated to you. You should therefore treat these facts as having been proved." This instruction was not in error.

  McKenna's claim that the Court should not have allowed her counsel to stipulate to her being under oath also fails. McKenna offers no factual or legal basis for insisting that she was not under oath when she testified at her depositions and at trial.

  McKenna also contends that the corrections she made to her July 1998 deposition transcript were not made under oath and therefore cannot be the basis for a perjury conviction. McKenna, however, was not convicted of her perjuring herself by making the corrections; rather, she was convicted of lying under oath during her July 1999 deposition and again while testifying during the civil trial. Moreover, her attorneys did not stipulate that she was under oath when she made the corrections.

  V. Sufficiency of the evidence

  Finally, McKenna challenges the sufficiency of the evidence. The Ninth Circuit already found that the evidence was sufficient to support the verdict and McKenna offers no new arguments that merit discussion. The Court notes that McKenna appears to have a fundamental misunderstanding of her conviction as she continues to challenge count 1 of the indictment. McKenna was not convicted of that charge.


  For the foregoing reasons, McKenna's motion pursuant to 28 U.S.C. section 2255 is DENIED.



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