Mahon v. United States

          ORDER

          DAVID G, CAMPBELL SENIOR UNITED STATES DISTRICT JUDGE.

         Dennis 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.

         I. Background.

         On 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).

         After a 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.

         Mahon 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).

         I. Legal Standards.

         A. R&R Standard of Review.

         The 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).

         B. Ineffective Assistance of Counsel.

         “To 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).

         “A 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).

         II. Discussion.

         Mahon 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 at 1-10.

         A. Ground 2A: Motion to Suppress Recorded Statements in Police Van.

         Mahon 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.

         1. Factual Findings.

         In 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).

         After 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.

         Defendants 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.

         During 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.

         Defendants 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.”

         Mahon 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 property.

         Two 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.

         2. Analysis.

         “A 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 at 1169.

         The 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 at 2-4.

         a. Officers' Statements to Defendants.

         The 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 ...