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United States v. Lee

United States District Court, N.D. California

August 28, 2019




         Now before the Court are several motions filed by defendant John Ching En Lee, who was serving a term of federal probation and who is currently representing himself pro se. For the reasons set forth below, the Court DENIES Lee's motion for relief under 28 U.S.C. § 2255 (Dkt. Nos. 164, 165); DENIES Lee's motion to amend his § 2255 motion (Dkt. No. 183); and GRANTS Lee's motion for leave to file a reply brief (Dkt. 188). A certificate of appealability will not issue.


         In an indictment filed in November 2015, Lee was charged with two counts of making false statements to the government in violation of 18 U.S.C. § 1001(a), based upon statements he made in interviews with government agents on August 26, 2009, and October 10, 2013. Dkt. No. 42. On June 30, 2016, a jury found defendant guilty of both counts. Dkt. No. 123. Lee then moved for a judgment of acquittal under Federal Rule of Criminal Procedure 29 or a for a new trial under Rule 33. On September 20, 2016, the Court denied Lee's motion for judgment of acquittal or a new trial on Count One but granted his motion for judgment of acquittal on Count Two. Dkt. No. 144. On October 14, 2016, the Court sentenced Lee to two years of probation, with a special assessment of $100 and a fine of $500. Dkt. No. 154.

         Lee then filed a direct appeal with the United States Court of Appeals for the Ninth Circuit. On June 6, 2018, in an unpublished memorandum, the Ninth Circuit affirmed this Court's denial of defendant's motion for judgment of acquittal on Count One. Dkt. No. 163; see also United States v. Lee, 726 Fed. App'x 589 (9th Cir. 2018).

         On October 10, 2018, Lee filed in this Court a motion to vacate, set aside, or correct his sentence pursuant to 28 U.S.C. § 2255. Dkt. Nos. 164, 165. The government moved to dismiss Lee's motion, arguing that the motion was not ripe because Lee was seeking review of the Ninth Circuit's decision before the United States Supreme Court. Dkt. No. 171. This Court denied the government's motion to dismiss but stayed briefing on the § 2255 motion pending the Supreme Court's review of Lee's petition for a writ of certiorari. Dkt. No. 173.

         After the Supreme Court denied Lee's petition on February 19, 2019, see Dkt. No. 174, briefing on Lee's § 2255 motion resumed. The government filed an opposition brief, attaching Lee's opening brief in his direct appeal before the Ninth Circuit. Dkt. No. 179. Lee requested and received an extension of time to file his reply brief, making his reply due on May 29, 2019. Dkt. Nos. 181, 182. On May 16, 2019, Lee filed a motion to amend his § 2255 motion, which the government opposed. Dkt. Nos. 183, 186. On May 24, 2019, Lee filed a request for extension of time to file his reply brief on the § 2255 motion. Dkt. No. 184. The Court vacated the reply deadline pending its ruling on the motion to amend. Dkt. No. 185. However, on June 20, 2019, Lee filed a motion requesting the Court's leave to accept his reply brief to the § 2255 motion and attaching the proposed reply brief. Dkt. No. 188.[1]


         A prisoner in custody under sentence of a federal court who wishes to attack collaterally the validity of his conviction or sentence must do so by filing a motion to vacate, set aside or correct the sentence pursuant to 28 U.S.C. § 2255 in the court which imposed the sentence. 28 U.S.C. § 2255(a). Under 28 U.S.C. § 2255, the federal sentencing court is authorized to grant relief if it concludes that “the sentence was imposed in violation of the Constitution or laws of the United States, or that the court was without jurisdiction to impose such sentence, or that the sentence was in excess of the maximum authorized by law, or is otherwise subject to collateral attack.” See Tripati v. Henman, 843 F.2d 1160, 1162 (9th Cir. 1988). If the court finds that relief is warranted under § 2255, it must “vacate and set the judgment aside” and then do one of four things: “discharge the prisoner or resentence him or grant a new trial or correct the sentence as may appear appropriate.” 28 U.S.C. § 2255(b); United States v. Barron, 172 F.3d 1153, 1157 (9th Cir. 1999).

         Section 2255 requires that an evidentiary hearing be held unless the record conclusively reveals that the petitioner is not entitled to relief. See United States v. Mejia-Mesa, 153 F.3d 925, 929 (9th Cir. 1998). “The petitioner need not detail his evidence, but must only make specific factual allegations which, if true, would entitle him to relief.” Id. (internal alteration and citations omitted). An evidentiary hearing need not be held where the petition, files, and record of the case conclusively show the petitioner is entitled to no relief. Id.; see also United States v. Howard, 381 F.3d 873, 877-79 (9th Cir. 2004) (a claim for ineffectiveness based on counsel's failure to address defendant's incompetence to plead guilty required an evidentiary hearing where specific, credible evidence existed that defendant was under the influence of powerful narcotic drugs). The district court may deny a § 2255 motion without an evidentiary hearing only if the movant's allegations, viewed against the record, either do not state a claim for relief or are so palpably incredible or patently frivolous as to warrant summary dismissal. See Mejia-Mesa, 153 F.3d at 931 (district court did not abuse discretion in denying evidentiary hearing on claims that failed to state a claim for relief under § 2255 as a matter of law).


         Lee currently stands convicted of Count One of the indictment, for a violation of 18 U.S.C. § 1001(a). That count charged Lee with “making false statements to representatives of the Department of Homeland Security about his involvement in providing funding to the owner of Crystal Massage Parlor [i.e., Lee's wife], who was arrested for prostitution in relation to the Crystal Massage Parlor. The statements and representations were false because JOHN CHING EN LEE then and there knew that he had provided $30, 000 to the owner to fund the Crystal Massage Parlor.” Dkt. No. 42 at 1-2.

         Prior to the start of trial, Lee's counsel had proposed that the Court instruct the jury on “specific unanimity, ” in the form of the following proposed instruction:

In order for Mr. Lee to be found guilty on Count One, you all must agree that one or more of the following statements was materially false and made with Mr. Lee's knowledge that both the statement was untrue and that his conduct was unlawful, with all of you unanimously agreeing as to which statement or statements so qualify. In other words, even if you all agree that Mr. Lee made at least one false statement, but all of you do not agree on which ...

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