United States District Court, N.D. California
August 9, 2005.
UNITED STATES OF AMERICA, Plaintiff,
JOAN McKENNA, Defendant.
The opinion of the court was delivered by: CHARLES BREYER, District Judge
MEMORANDUM AND ORDER
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
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
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
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
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
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.
IT IS SO ORDERED.
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