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Quiel v. USA

United States District Court, D. Arizona

October 24, 2017

Michael Quiel, Petitioner,
v.
USA, Respondent.

          ORDER

          JAMES A. TEILBORG, SENIOR UNITED STATES DISTRICT JUDGE.

         Pending before the Court is Movant's amended Motion Under 28 U.S.C. § 2255 to Vacate, Set Aside or Correct a Sentence by a Person in Federal Custody (Doc. 7.) The Government has answered, (Doc. 11), and Movant has replied, (Doc. 14.) Magistrate Judge Michelle H. Burns has issued a Report and Recommendation (“R&R”) recommending that Movant's claims be denied and dismissed with prejudice, that a Certificate of Appealability be denied, and that leave to proceed in forma pauperis on appeal be denied. (Doc. 17.) Movant objects to the R&R. (Doc. 18.)

         Relatedly, pending before the Court is Movant's Motion to Compel Government to Produce Documents. (Doc. 19.) The Government opposes this request. (Doc. 20.)

         I. Background

         Movant does not dispute the procedural background provided by the Magistrate Judge. Therefore, this Court adopts that background, except regarding Movant's subsequently decided appeal:

On December 8, 2011, a grand jury indicted Movant Michael Quiel with one count of Conspiracy to Defraud the United States, two counts of Willful Subscription to False Individual Income Tax Returns, and two counts of Willful Failure to File Reports of Foreign Bank and Financial Accounts (“FBAR”).[1] (CR Docs. 3, 463.)
On September 24, 2013, Movant was convicted on two counts of Willful Subscription to False Individual Income Tax Returns, in violation of 26 U.S.C. § 7206(1).[2] He was sentenced to a 10-month term of imprisonment, to be followed by a one-year term of supervised release. Movant appealed his convictions to the Ninth Circuit Court of Appeals arguing, the following:
• “[Movant] was denied his constitutional right to cross-examine Rusch on three exhibits entered on redirect”
• “The Government's repeated reference to [Movant's] complicated securities transactions as fraud was prejudicial and the court's allowing such references over objection was error”
• “[Movant] was denied his constitutional right to counsel by the trial court's allowing Rusch to testify in violation of [Movant's] attorney-client privilege”
• “The trial court erroneously refused to require production of the special agent's report, [Movant's] individual master file, and the notes of the Government's chief investigator, and refused to review the documents in camera or even preserve them for review by this court”

(United States v. Quiel, No. 13-10503, Doc. 20.)

         The Ninth Circuit affirmed Movant's convictions on December 19, 2014, and the mandate issued on February 6, 2015. United States v. Quiel, 595 Fed.Appx. 692 (9th Cir. 2014), cert. denied, 135 S.Ct. 2336 (2015). The Ninth Circuit held, in pertinent part:

The question of whether Defendants willfully failed to report income ... is one of fact for the jury. See Rykoff v. United States, 40 F.3d 305, 307-08 (9th Cir. 1994). The jury could have concluded that Kerr and Quiel knew they had a duty to report the income from their foreign accounts, because Christopher Rusch, their attorney and business partner, testified that the accounts were set up using nominees under Kerr's and Quiel's control in order to evade reporting requirements. Even without Rusch's testimony, the jury could have inferred control because (a) the accounts were traded in Kerr's and Quiel's stock for their benefit; (b) the foreign firms never served their stated purpose of finding investors; and (c) these firms were not actual, functioning businesses. Additionally, even without Rusch's testimony, the jury could infer motive from Kerr's having recently paid high tax rates and Quiel's recent payment of a large tax penalty before either engaged in these transactions.
On March 13, 2015, Movant and Kerr filed a Joint Motion for New Trial pursuant to Rule 33 of the Federal Rules of Criminal Procedure alleging newly discovered evidence. (CR Doc. 454.) Specifically, Defendants' argued: (1) “evidence has emerged showing that Rusch engaged in fraudulent activities”; (2) “the Government has agreed ‘to look the other way while its witness commits additional crimes'”; and (3) “Pierre Gabris, a Swiss-national and alleged participant in the structuring of the Swiss accounts, would testify that ‘he did not prepare or send trial exhibits 51 and 52, ' which were offered into evidence on Rusch's re-direct” and “contain emails originally sent from Gabris to Rusch, who forwarded them to Defendants, regarding accounting statements from Defendants' Swiss corporations.” (CR Docs. 454, 463.) The Court denied the Joint Motion for New Trial on July 15, 2015, (CR Doc. 463), and on July 28, 2015, Movant and Kerr filed a Notice of Appeal from the July 15, 2015 Order (CR Doc. 467).
On December 28, 2015, in the appellate court case, Movant and Kerr filed a Joint Motion for Remand to the District Court & Motion to Stay Briefing Schedule, arguing that the Court of Appeals should remand the action to the district court so it can: (1) “consider evidence that was before it but which that [the district] Court did not consider, ” and (2) consider new evidence and argument that either came to light after the Joint Motion for New Trial was filed or “was [not] otherwise ... presented.” (United States v. Kerr, et al., No. 15-10393, Doc. 17.)
The Ninth Circuit denied the Motion for Remand without prejudice to the filing of “a renewed motion accompanied by an indication that the district court is willing to entertain the limited remand motion.” (United States v. Kerr, et al., No. 15-10393, Doc. 19.) On March 7, 2016, Movant and Kerr filed a Joint Motion to Accept Remand to Consider New Evidence for a New Trial in the district court. (CR Doc. 471.) Defendants argued: (1) “This Court should accept a remand so as to consider new evidence and argument that were not before this Court but which came to light while the motion was pending, after it was appealed, or that was otherwise not presented”; and (2) “This Court should accept remand so as to consider evidence that was presented to this Court” but “which this Court did not consider.” (CR Doc. 471.) Defendants' newly discovered evidence consisted of four declarations, one of which came from Jerome Perucchi that was signed on June 4, 2015, and was used as part of civil lawsuit in a state court matter. (CR Doc. 471.)
While the Joint Motion was pending before the district court, on May 17, 2016, Movant filed a Motion Under 28 U.S.C. § 2255 to Vacate, Set Aside, or Correct Sentence by a Person in Federal Custody. (CV Doc. 1; CR Doc. 474.) Thereafter, the district court directed the parties to show cause why the § 2255 proceeding should not be stayed pending the Court's determination on the Joint Motion to Accept Remand. (CV Doc. 3.)
Then, on July 22, 2016, the Court denied the Joint Motion to Accept Remand (CR Doc. 475), [3] and on August 2, 2016, the Court discharged the Order to Show Cause after concluding that it had been mooted by the Court's ruling on the Joint Motion (CV Doc. 6). In the same August 2, 2016 Order, the Court also denied Movant's § 2255 Motion with leave to amend and gave Movant 30 days to file an amended motion using the court-approved form. (CV Doc. 6.)
On September 1, 2016, Movant filed an amended Motion Under 28 U.S.C. § 2255 to Vacate, Set Aside, or Correct Sentence by a Person in Federal Custody (CV Doc. 7). In the amended § 2255 Motion, Movant alleges four grounds for relief. In Ground One, he claims that he received ineffective assistance of counsel because his trial attorney refused to call any witnesses or submit any evidence after the government rested its case in chief. In Ground Two, Movant appears to argue that his due process rights were violated by the introduction at trial of perjured testimony that the government knew or should have known was false. Movant further alleges that the government failed or refused to produce evidence that would confirm that perjured testimony was introduced at trial. In Ground Three, Movant claims that the government has not produced evidence that it properly appointed the attorneys who prosecuted him, and the government has not demonstrated that it followed “proper procedure when it began prosecution.” In Ground Four, Movant argues that he received ineffective assistance of counsel in connection with “matters that occurred pre and post trial.” (CV Docs. 7, 10.)

(Doc. 17 at 1-5.)

         On August 22, 2017, Movant filed Movant's Motion to Compel Government to Produce Documents, requesting that the Court order the Government to produce “amended Forms 1040 for the tax years 2000-2003, along with the FBAR returns for 2000-2003 allegedly prepared with these amended forms.” (Doc. 19.) On August 29, 2017, the Government filed a motion opposing this request. (Doc. 20.)

         On September 27, 2017, the Ninth Circuit Court of Appeals affirmed this Court's denial of Movant's motion for a new trial and motion for remand in the underlying criminal matter. United States v. Kerr, No. 15-10393, 2017 WL 4284757 (9th Cir. Sept. 27, 2017).

         II. Legal Standard

         This Court may “accept, reject, or modify, in whole or in part, the findings or recommendations made by the magistrate judge” in the R&R. 28 U.S.C. § 636(b)(1) (2012). “Within fourteen days after being served with a copy, any party may serve and file written objections” to the R&R. Id. This Court “must review the magistrate judge's findings and recommendations de novo if objection is made, but not otherwise.” United States v. Reyna-Tapia, 328 F.3d 1114, 1121 (9th Cir. 2003) (en banc) (emphasis in original); see also Schmidt v. Johnstone, 263 F.Supp.2d 1219, 1226 (D. Ariz. 2003) (“Following Reyna-Tapia, this Court concludes that de novo review of factual and legal issues is required if objections are made, ‘but not otherwise.'” (internal citation omitted) (emphasis in original)).

         Movant objects to all of the Magistrate Judge's legal findings and many of her factual findings, (Doc. 18); therefore, this Court will review all of Movant's claims de novo.

         III. Discussion

         A. Jurisdiction

         Under 28 U.S.C. § 2255, this Court has limited jurisdiction to adjudicate a collateral action by a “prisoner in custody under sentence of a court established by Act of Congress.” 28 U.S.C. § 2255 (2012); see United States v. Reves, 774 F.3d 562, 565 (9th Cir. 2014) (noting that the “in custody” requirement is jurisdictional and must be satisfied before consideration of the merits). One is in custody when sentenced by a federal court to incarceration or conditional release. Maleng v. Cook, 490 U.S. 488, 491 (1989) (per curiam); see Reves, 774 F.3d at 565. This jurisdictional requirement is satisfied when a collateral action is initiated before custody ends. Maleng, 490 U.S. at 491.

         According to Movant, his term of supervised release terminates on January 13, 2017. (CR Doc. 477.) Movant initiated this collateral action on May 17, 2016. (Doc. 1.) Therefore, because Movant initiated his collateral action before the end of custody, this Court has jurisdiction under Section 2255.

         B. Timeliness

         Under the Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”), collateral actions under Section 2255 are subject to a 1-year statute of limitations. 28 U.S.C. § 2255(f) (2012). As relevant, the limitations period proceeds from the date that a movant's conviction becomes final Id.

         The statute of limitations is not jurisdictional, and is treated as an affirmative defense to be raised by the Government, unless a court discretionarily raises the issue sua sponte. Day v. McDonough, 547 U.S. 198, 209 (2006). Each claim that is challenged by the government as time-barred, or which a court considers sua sponte, must individually meet the requirements of the statute of limitations. See Mardesich v. Cate, 668 F.3d 1164, 1170-71 (9th Cir. 2012) (applying a “claim-by-claim” approach to Section 2244's statute of limitations); see also Clay v. United States, 537 U.S. 522, 528-30 (2003) (reading portions of the statute of limitations requirements in Sections 2244 and 2255 to have the same meaning despite “verbal differences”). When a defendant petitions the Supreme Court for certiorari, the conviction “becomes final when the Supreme Court either denies the writ or issues a decision on its merits.” Clay, 537 U.S. at 529 n.4 (internal citation omitted).

         Federal Rule of Civil Procedure 6(a) provides four guides for calculating Section 2255's statute of limitations. Patterson v. Stewart, 251 F.3d 1243, 1246 (9th Cir. 2001); see also Rule 12 of Rules Governing Section 2255 Proceedings (“The Federal Rules of Civil Procedure and the Federal Rules of Criminal Procedure, to the extent that they are not inconsistent with any statutory provisions or these rules, may be applied to a proceeding under these rules.”). First, exclude the day of the triggering event. Fed.R.Civ.P. 6(a)(1). Second, include all intermediate days. Id. Third, include the last day, but if it is a Saturday, Sunday, or legal holiday, then proceed to the end of the next unqualified day. Id. Fourth, the last day ends at midnight when filing electronically or when the clerk's office closes when filing by other means. Id. A year is 365 days in a normal year and 366 days in a leap year. See United States v. Tawab, 984 F.2d 1533, 1534 (9th Cir. 1993); United States v. Marcello, 212 F.3d 1005, 1010 (7th Cir. 2000).

         The Government asserts that the statute of limitations bars “much of [Movant's] false testimony claim.” (Doc. 11 at 4.) The Supreme Court denied certiorari, making Movant's claim final, on May 18, 2015. Quiel v. United States, 135 S.Ct. 2336 (mem.) (2015). Movant filed this collateral attack in a leap year on May 17, 2016. (Doc. 1.) Therefore, Movant's claim was timely filed on the day before the limitations period ended. The Government concedes that Movant's filing was punctual, but argues that any new facts that surfaced in the September 1, 2016 amendment, particularly Movant's quotations from a declaration by Jerome Perucchi (“Perucchi ...


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