United States District Court, D. Arizona
G, CAMPBELL SENIOR UNITED STATES DISTRICT JUDGE.
Mahon has filed an amended petition under 28 U.S.C. §
2255 to vacate his convictions and set aside or correct his
sentence. Doc. 31. Judge James F. Metcalf issued a Report and
Recommendation (“R&R”) recommending the Court
deny the petition. Doc. 49. Mahon filed an objection, and the
government responded. Docs. 52, 55. The Court will accept the
R&R and deny the petition.
February 26, 2004, the director of Scottsdale's Diversity
Office opened a package addressed to him, triggering a pipe
bomb explosion. The director suffered severe trauma, required
multiple surgeries and skin grafts, and nearly lost a finger.
The blast injured two other employees, shattered windows,
collapsed a wall and ceiling, and blew a hole in the counter
where the package sat. Months before the explosion, Mahon had
left a voicemail message with the Diversity Office,
identifying himself as “Dennis Mahon of the White Aryan
Resistance of Arizona.” Mahon's message used racial
epithets and complained about the Office's outreach
efforts. He stated: “The White Aryan Resistance is
growing in Scottsdale. There's a few white people who are
standing up. Take care.” See United States v.
Mahon, 793 F.3d 1115, 1117-18 (9th Cir. 2015)
(Mahon's direct appeal to Ninth Circuit).
multi-year undercover investigation, law enforcement
identified evidence of Mahon's participation in the
bombing. He was charged with and convicted of three counts:
(1) conspiracy to damage buildings and other real property by
means of explosive in violation of 18 U.S.C. §§
844(i), (n); (2) malicious damage of a building by means of
explosive in violation of § 844(i); and (3) distribution
of information related to construction of explosives in
violation of § 842(p)(2)(A). He received a 40-year
sentence on Counts 1 and 2, and a concurrent 33-month
sentence on Count 3. Doc. 49 at 2-3.
asserted ten grounds for relief in his § 2255 petition
(Doc. 31), but raises only four objections to the R&R,
each asserting ineffective assistance of counsel (Doc. 52).
R&R Standard of Review.
Court “may accept, reject, or modify, in whole or in
part, the findings or recommendations made by the magistrate
judge.” 28 U.S.C. § 636(b)(1). “[T]he
district judge 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). District courts are not required to conduct “any
review at all . . . of any issue that is not the subject of
an objection.” Thomas v. Arn, 474 U.S. 140,
149 (1985); see also 28 U.S.C. § 636(b)(1).
Ineffective Assistance of Counsel.
establish ineffective assistance of counsel under
Strickland, a prisoner must demonstrate both: (1)
that counsel's performance was deficient, and (2) that
the deficient performance prejudiced his defense.”
Miles v. Ryan, 713 F.3d 477, 486 (9th Cir. 2013)
(citing Strickland v. Washington, 466 U.S. 668,
688-93 (1984)). Courts must “indulge a strong
presumption that counsel's conduct falls within the wide
range of reasonable professional assistance, ” and
attorneys are afforded “wide latitude . . . in making
tactical decisions.” Strickland, 466 U.S. at
689. The reasonableness of counsel's performance is
judged under an objective standard. United States v.
Davis, 36 F.3d 1424, 1433 (9th Cir. 1994).
defendant is prejudiced by counsel's deficient
performance if ‘there is a reasonable probability that,
but for counsel's unprofessional errors, the result of
the proceeding would have been different.'”
Clark v. Arnold, 769 F.3d 711, 725 (9th Cir. 2014)
(quoting Strickland, 466 U.S. at 694). “A
‘reasonable probability is a probability sufficient to
undermine confidence in the outcome' of a
proceeding.” Id. Mahon “need not prove
‘counsel's actions more likely than not altered the
outcome,' but rather he must demonstrate that
‘[t]he likelihood of a different result [is]
substantial, not just conceivable.'” Id.
(quoting Harrington v. Richter, 562 U.S. 86, 111-12
(2011)). “[A]ppellate counsel's failure to raise
issues on direct appeal does not constitute ineffective
assistance when appeal would not have provided grounds for
reversal.” Wildman v. Johnson, 261 F.3d 832,
840 (9th Cir. 2001).
objects to Judge Metcalf's findings that: (1) appellate
counsel was effective despite not appealing the Court's
ruling denying his motion to suppress his statements and
co-defendant's statements; (2) appellate counsel was
effective despite failing to appeal the Court's denial of
his motion to dismiss Count 3 based on entrapment; (3) trial
counsel was effective despite withdrawing the jury
instruction request on entrapment; and (4) appellate counsel
was effective despite failing to appeal the Court's
application of a 12-level enhancement for terrorism. Doc. 52
Ground 2A: Motion to Suppress Recorded Statements in Police
argues that appellate counsel was ineffective for failing to
appeal the Court's denial of his motion to suppress his
and his co-defendant's statements recorded after their
arrest. Doc. 52 at 2.
reviewing Mahon's pretrial motion, the Court observed the
following events from audio and video taken by law
enforcement on the morning of defendants' arrest from
6:51 a.m. to 9:02 a.m., and three other audio clips that day.
See Doc. 49 at 22-23 (citing the Court's order
in CR-09-0712-PHX-DGC (“CR Doc.”) at 613).
his arrest, Mahon was placed in a police van at 6:52 a.m.,
removed from the van at 6:54:40 a.m., and returned to the van
at 6:56:33 a.m. The van was wired for audio and video
recording. Mahon was shown the indictment and warrant by
Special Agent Green and then given Miranda warnings
in the van by Special Agent Hager at 7:05 a.m. After his
rights were read, Mahon was asked “Do you
understand?” He replied in a conversational tone:
“The small talk is over. I can't say anything more
- except for who is praying for the damn humidity to
quit?” Mahon made “small talk” with law
enforcement, but no officers questioned him about the issues
in the case and he volunteered no such information.
Mahon's brother and co-defendant, Daniel Mahon, was given
Miranda warnings at approximately 6:58 a.m. and
placed in the van at 7:09 a.m. Asked whether he understood
his rights, Daniel said “I understand.” He did
not state that he was invoking his rights.
were alone in the van between 7:11 a.m. and 7:13 a.m., and
after 7:14 a.m. Officers were present both inside and outside
the van before 7:11 a.m. and between 7:13 and 7:14 a.m. After
7:14 a.m., officers opened the door from time to time to
check on Defendants, to escort Daniel out to talk with Agent
Moreland, to respond to a request from Mahon to use the
restroom, and to turn on the air conditioning at Daniel's
request. Defendants did not request to be held outside the
vehicle, nor did they complain of discomfort other than
warmth, which appeared to be remedied immediately after
Daniel requested that the air conditioning be turned on.
the contacts with law enforcement while in the van,
Defendants were asked if the house contained any explosive
devices that might harm officers and Mahon said no.
Defendants were also asked whether the barn was safe, to
which they replied that there were no explosives but that
there were bat feces that could be virulent and agents
probably should wear gas masks. The tone of these brief
encounters was not threatening.
expected that the van was wired for recording. At 7:11:12
a.m., Mahon remarked that they were probably being recorded,
and later that they were probably being videotaped.
Defendants nonetheless conversed freely, discussed their
parents and what they saw outside the windows, expressed
frustration with the raid, reviewed potentially incriminating
items on the computer and the property (e.g., soft porn,
supremacist literature, black powder for a pistol Mahon had
owned, weapons and ammunition, etc.), and reassured each
other multiple times that they had no involvement with the
Scottsdale bombing. They also made statements of retribution
against law enforcement for the raid and expressed regret for
not having had a “shootout.”
instructed Daniel at least twice about what to do when
interrogated: ask for a lawyer and state that he has nothing
to say, regardless of accusations. Shortly thereafter, at
8:49 a.m., Daniel was retrieved from the van to talk with
Agent Moreland. Upon returning, Mahon asked Daniel if he did
as instructed. Daniel said that he did not ask for a lawyer
because he was not asked questions, and that he remained
silent. The video provided to the Court does not show what
happened after Mahon spoke with Agent Moreland, nor any
statements made by Defendants after the van left the
audio clips contained conversations between Defendants and
Agent Moreland. The conversations occurred separately for
each Defendant, outside of the van. Moreland informed Daniel
and Mahon of the charges and evidence against them, told them
that they likely would not want to talk with him right away,
told them about raids occurring at the property of other
individuals Defendants knew (including Tom Metzger, an
alleged white supremacist leader), informed Defendants that
Metzger likely would abandon them, and informed Mahon that he
would likely have no friends after this incident.
defendant who is in custody must be given Miranda
warnings before police officers may interrogate him. Once
such warnings are given and the defendant invokes his right
to remain silent, the admissibility of statements obtained
thereafter depends upon whether the defendant's right to
cut off questioning was ‘scrupulously
honored.'” United States v.
Moreno-Flores, 33 F.3d 1164, 1168-69 (9th Cir. 1994)
(quoting Michigan v. Mosley, 423 U.S. 96, 104
(1975)). Miranda applies to custodial
interrogations, Rhode Island v. Innis, 446 U.S. 291,
297 (1980), but it does not require suppression of voluntary
statements made by a defendant in custody if his statements
are not the product of post-invocation interrogation,
Mosley, 423 U.S. at 102. “Interrogation”
refers both to direct questioning and its “functional
equivalent” - “words or actions on the part of
the police (other than those normally attendant to arrest and
custody) that the police should know are reasonably likely to
elicit an incriminating response from the suspect.”
See Innis, 446 U.S. at 229-301;
Moreno-Flores, 33 F.3d at 1169. Whether conduct is
the functional equivalent of direct questioning is an
objective inquiry - the officers' subjective intent is
relevant but not dispositive. Moreno-Flores, 33 F.3d
Court's order found that Mahon invoked his right to
silence at 7:05 a.m. CR Doc. 613 at 5. The inquiry is then -
as the R&R and Mahon agree - whether the totality of
circumstances amounted to the functional equivalent of
interrogation. Docs. 52 at 3; 49 at 32. Mahon asserts that
appellate counsel was deficient under the first
Strickland prong because a “reasonable
probability exists” that the Ninth Circuit would have
found the Court erred and held that the investigators'
actions amounted to the functional equivalent of
interrogation. Doc. 52 at 2. He points to three
circumstances: (1) investigators “baiting”
defendants and “priming the pump” with their
statements; (2) officers placing defendants in a hot van for
two hours; and (3) the fact that the van was wired. Doc. 52
Officers' Statements to Defendants.
R&R found that, under some circumstances, interactions
with non-police third parties may arise to the functional
equivalent of interrogation when police orchestrate the
contact using compelling influences or psychological ploys.
Doc. 49 at 45-49. The R&R based this finding on
“the rule to be distilled” from Arizona v.
Mauro, 481 U.S. 520 (1987), and other cited cases. Judge
Metcalf then concluded that “a highly plausible
argument” existed that Agent Moreland manipulated
Mahon's co-defendant into acting as an interrogator,
amounting to the functional equivalent of interrogation. Doc.
49 at 49-54. Mahon does not object to the R&R's
conclusion that Agent Moreland manipulated Mahon's
co-defendant to act as an interpreter. But as discussed
further below, Mahon objects to the R&R's finding
that the Ninth ...