The opinion of the court was delivered by: Alicemarie H. Stotler United States District Judge
ORDER DENYING PETITION FOR RELIEF PURSUANT TO 28 U.S.C. § 2255
I. BACKGROUND AND PROCEDURAL HISTORY
On March 28, 2003, Defendant/petitioner Richard Lee Carlisle ("petitioner") was convicted after a jury trial for conspiracy to obtain and disclose contractor bid and proposal information and aiding and abetting the disclosing of procurement information, pursuant to 18 U.S.C. § 371 and 41 U.S.C. § 423. On August 11, 2003, the Court sentenced petitioner to 24 months imprisonment on counts ten and eleven of the Redacted Indictment. On June 14, 2005, the Court of Appeals for the Ninth Circuit affirmed petitioner's conviction and remanded for sentencing after United States Supreme Court's decision in United States v. Booker, 543 U.S. 220, 125 S.Ct. 738, 160 L.Ed. 2d 621 (2005). On January 27, 2006, the Court re-sentenced petitioner to 24 months imprisonment. On May 1, 2007, the Ninth Circuit affirmed the sentence. The Ninth Circuit denied petitioner's en banc rehearing request. Petitioner filed a petition for a writ of certiorari that was denied on October 27, 2007, and the conviction became final.
On September 15, 2008, petitioner filed a § 2255 motion to vacate, set aside or correct his sentence. On November 28, 2008, the government filed opposition. Petitioner filed a reply on January 5, 2009. Having read and considered the papers, the Court denies petitioner's § 2255 motion.
Petitioner worked for AMS, a company that performed contract work for the United States Army and its Contract Command in Korea, called the United States Contract Command Korea ("USACCK"). In 2001, AMS's contract for administering Army procurement software was going to expire, and CCK solicited bids. Kimberly Stewart ("Stewart") wrote and submitted a bid for AMS. The co-defendants of petitioner, who worked at USA-CCK, forwarded AMS's bid to petitioner, who also likely had access to the bid because it was on AMS's computer system. Petitioner, using a separate company name, then submitted his own lower bid based largely on AMS's bid and his company was awarded the contract.
III. SUMMARY OF PARTIES' CONTENTIONS
Petitioner's counsel, both trial and appellate, were ineffective for thirteen reasons. Trial counsel was ineffective because he failed to elicit at trial that petitioner received a copy of the AMS proposal before it was submitted to CCK and that AMS never officially submitted its bid to CCK.
Counsel also failed to challenge the jury instructions. Additionally, because petitioner's bid merely copied AMS's format, and not its information, the only action that should have been brought was a civil one by AMS. Counsel's failure to elicit this fact constituted ineffective assistance. Counsel failed to challenge venue, and the Court lacked jurisdiction to oversee the case because petitioner had no contacts with California; therefore, the case should have been dismissed. Further, counsel failed to challenge petitioner's eight-level sentencing enhancement.
The sentencing guidelines, while advisory, violate petitioner's Sixth Amendment and Fourteenth Amendment rights because they violate the separation of powers doctrine. The Ninth Circuit's affirmation was plain error and was wrongly decided. Additionally, the United States was not harmed by the submission of petitioner's bid because the contract awarded to petitioner saved the government $140,000, thus it had no standing to prosecute petitioner. Lastly, "there was 'plain error' in judgment by both the plaintiff and the prosecution in their action against petitioner as a 'natural person' who is a 'nonjuridical'[sic] entity." (Pet'r Mot. at 10.)
B. Government's Opposition
Petitioner's grounds are not meritorious. To prevail on an ineffective assistance of counsel claim, petitioner must establish: (1) his counsel's performance was deficient; and (2) such deficiency prejudiced petitioner's defense, for example, but for counsel's conduct, there is a reasonable probability that the proceeding's outcome would have been different. Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed. 2d 674 (1984). Failing to make meritless arguments does not constitute ineffective assistance. Shah v. United States, 878 F.2d 1156, 1162 (9th Cir. 1989). If trial counsel makes a tactical decision not to present evidence, it is likely counsel's performance was not ineffective. Smith v. Stewart, 140 F.3d 1263, 1269 (9th Cir. 1998).
1. Calling James Caton as a Witness
Trial counsel was not ineffective because he failed to call James Caton ("Caton"), who would have testified that petitioner received AMS's proposal in advance of when his co-defendant illegally provided it to him. As set out in the declaration of trial counsel, he did not call Caton as a witness because: (1) Caton did not want to testify for the defense and may have damaged petitioner's case; (2) Stewart could and did testify to the same information; and (3) early disclosure was irrelevant because AMS did not consent to petitioner's use of the information to solicit his own contract. Petitioner agreed with his counsel not to call Caton.
2. Jury Instruction Claim
The jury was not erroneously instructed that petitioner "could [have] only receive[d] the unsolicited for (sic) bid proposal of AMS Inc. from the government." There is no evidence of this instruction in the record. The jury instructions in petitioner's case were consistent with the Ninth Circuit Model Criminal Jury Instructions. Additionally, petitioner defaulted on this claim by failing to raise it previously. See, e.g., United States v. Frady, 456 U.S. 152, 162-65, 102 S.Ct. 1584, 71 L.Ed. 2d 816 (1982); United States v. English, 42 F.3d 473, 477 (9th Cir. 1994). Once a claim is procedurally defaulted, a Court may only review it collaterally if petitioner establishes both cause for failing to raise it and resulting prejudice. Frady, 456 U.S. at 167. "[T]he mere fact that counsel failed to recognize the factual or legal basis for the claim, or failed to raise the claim despite recognizing it, does not constitute cause for a procedural default." Cockett v. Ray, 333 F.3d 938, 943 (9th Cir. 2003). Petitioner does not raise or show cause and resulting prejudice.
3. Lack of Evidence that the Bid Proposal was Public Knowledge
Counsel's performance was not defective for failing to present evidence that the bid and proposal were not proprietary because they were not marked secret or restricted.
Contractor bid and proposal information are confidential as a matter of law and include non-public costs and pricing data as well as information marked as contractor bid information. 41 U.S.C. § 432(f)(1). It is not limited to material marked secret or restricted.
Extensive trial testimony demonstrated that the bid proposals were proprietary, sensitive, and non-public. Stewart testified that the proposal included the notation, "[t]his proposal or quotation includes data that shall not be disclosed outside the government and shall not be duplicated, used or disclosed in whole or in part for any purpose other than to evaluate this proposal or quotation." Defendant provides no evidence that the bid was public and cannot show that his counsel was deficient and that prejudice resulted.
4. Petitioner's Conduct was a Violation of Criminal Law
In claims five, seven and twelve, petitioner argues that his conduct did not constitute criminal conduct and that, at most, AMS had a civil breach of contract claim against him. Claims five and seven further allege that his counsel was ineffective for failing to bring such a challenge, and claim twelve states that the government did not have "standing" to prosecute defendant because it saved money by choosing petitioner's contract.
Petitioner was charged with violating 18 U.S.C. § 371, and the government proved that: (1) there was an agreement between two or more persons to knowingly disclose and receive contractor bid or proposal information prior to the award of a federal agency procurement; (2) petitioner was a knowing member of the conspiracy; and (3) one of the members performed at least one overt act. Petitioner was also charged with violating, and aiding and abetting a violation of, 41 U.S.C. § 423, and the government proved that petitioner: (1) was a present or former official of the United States with access to contractor bid or proposal information; (2) knowingly disclosed that information prior to the award of the federal procurement contract; and (3) disclosed the information to give someone a competitive advantage in the award of a federal agency procurement contract.
Neither statute requires that the government suffer pecuniary harm, and any civil remedy for AMS is irrelevant. A jury found petitioner guilty of charges under both statutes. And, there was sufficient evidence on which to convict petitioner. United States ...