31 F.3d 1456 (9th Cir. 1994), 93-10061, United States v. Palomba

Docket Nº:93-10061.
Citation:31 F.3d 1456
Party Name:UNITED STATES of America, Plaintiff-Appellee, v. Joseph M. PALOMBA, Defendant-Appellant.
Case Date:August 10, 1994
Court:United States Courts of Appeals, Court of Appeals for the Ninth Circuit

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31 F.3d 1456 (9th Cir. 1994)

UNITED STATES of America, Plaintiff-Appellee,


Joseph M. PALOMBA, Defendant-Appellant.

No. 93-10061.

United States Court of Appeals, Ninth Circuit

August 10, 1994

Submitted May 11, 1994[*]

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Joseph M. Palomba, pro se.

Rory K. Little and Eric R. Havian, Asst. U.S. Attys., San Francisco, CA, for plaintiff-appellee.

Appeal from the United States District Court for the Northern District of California.

Before CHOY, POOLE, and REINHARDT, Circuit Judges.

CHOY, Circuit Judge:

On October 22, 1990, Appellant Joseph Palomba (Palomba) was convicted of mail fraud, wire fraud and making false statements to a federal agency, in violation of 18 U.S.C. Secs. 1341, 1343 and 1001. He was sentenced to 71 months imprisonment and three years supervised release. Palomba challenges his conviction on the basis of ineffective assistance of counsel and the district court's lack of subject matter jurisdiction or venue.

Palomba contends that he received ineffective assistance of counsel because his attorney failed (i) to argue that the district court lacked subject matter jurisdiction over the crimes; (ii) to object when Palomba was not brought to trial within 70 days of indictment pursuant to Section 3161(c) of the Speedy Trial Act (STA), 18 U.S.C. Sec. 3161 et. seq.; and (iii) to argue that two counts in the superseding indictment violated the 30-day limit set forth in Section 3162(a)(1) of the STA. Palomba further contends that the district court committed reversible error in imposing a consecutive sentence of 11 months for mail fraud, in addition to a 60 month sentence for a separate count of wire fraud, to achieve a combined sentence exceeding the maximum punishment for any single charge of conviction.

We affirm Palomba's conviction of wire fraud and making a false statement to a federal agency, vacate his conviction of two counts of mail fraud and remand for resentencing.


The facts of this case are straightforward and undisputed. On April 10, 1990, a complaint was filed against Palomba in the United States District Court for the Northern District of California, charging Palomba with making false statements to a federal agency, mail fraud and conspiracy, in violation of 18 U.S.C. Secs. 1001, 1341 and 371. These charges arose in connection with a scheme wherein Palomba, through Surety Bond Services, Inc., an Arizona corporation (SBS), submitted affidavits containing false statements of financial worth to federal agencies in order to obtain approval to act as a surety on government construction contracts.

On April 11, 1990, a bench warrant was issued. The following day Palomba was arrested, brought before a magistrate judge in the Central District of California, and released on bond. On April 20, 1990, an indictment was filed in the Northern District of California charging Palomba with one count of conspiracy to defraud the United States and one count of making false statements to a federal agency in violation of 18 U.S.C. Secs. 371 and 1001. The following day Palomba claims the 70-day clock between indictment and trial began to tick under Section Sec. 3161(c) of the STA.

On May 15, 1990, Palomba made his initial appearance in the Northern District of California.

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The Government contends that the 70-day clock began to run on this date. Two days later Palomba was arraigned on the two-count indictment and trial was set for May 30, 1990. When Palomba's counsel failed to appear for trial on the scheduled date, trial was reset for June 7.

On June 7, 1990, the trial was postponed on the Government's motion pending resolution of a dispute between the parties. The Government withdrew the motion on June 27. Judge Smith then rescheduled the trial for July 30. The Government contends, and Palomba does not explicitly dispute, that its motion tolled the 70-day clock during this twenty day interim between submission and withdrawal of the motion.

On July 13, 1990, a superseding indictment was returned which: (1) recharged Palomba with two counts of mail fraud in violation of 18 U.S.C. Sec. 1341, a charge previously raised in the complaint but omitted from the original indictment; (2) charged Palomba for the first time with four counts of wire fraud in violation of 18 U.S.C. Sec. 1343; and (3) recharged Palomba with one count of making false statements to a federal agency in violation of 18 U.S.C. Sec. 1001, a charge raised in the complaint and repeated in the original indictment.

On July 19, 1990, Palomba moved for a continuance to permit counsel time to adequately prepare for the complex trial. Counsel stated, and Palomba does not dispute, that she "discussed the need for a continuance with [Palomba] and he has no objection." On July 24, 1990, Judge Smith granted Palomba's motion for a continuance. Defense counsel requested a trial date in September. After the judge stated that he would be unavailable in September, defense counsel requested an October 15 trial date. Before accepting this date, Judge Smith informed Palomba of his right to a speedy trial and offered to reassign the case. Palomba declared that he agreed with his counsel's proposed trial date of October 15, 1990. Judge Smith then rescheduled the trial for that date.

Trial began on October 15, 1990. One week later Palomba was convicted on all counts. Palomba was sentenced to consecutive sentences of 60 and 11 months on the two mail fraud counts, with the remaining sentences to be served concurrently.

On August 5, 1992, Palomba appealed the district court's consideration at sentencing of unrealized losses to the Government. A Ninth Circuit panel affirmed Palomba's sentence in United States v. Palomba, 972 F.2d 1346 (1992).

On January 7, 1993, Judge Smith rejected as "meritless" Palomba's motion pro se to vacate his sentence for lack of subject matter jurisdiction and ineffective assistance of counsel.



Palomba's first contention of error is that the district court erred in rejecting his motion to correct, set aside or vacate his sentence in view of trial counsel's failure "to challenge the court's jurisdiction over the properties on which the offenses took place." Palomba further contends that " 'federal jurisdiction' was lacking within the Northern District of California because the offenses of both mail and wire fraud, set out in the superseding indictment, clearly took place within the Central District of California." We disagree.

We review de novo as a mixed question of law and fact whether counsel rendered ineffective assistance of counsel. United States v. Olson, 925 F.2d 1170, 1173 (9th Cir.1991). To prevail on an ineffective assistance of counsel claim, Palomba must overcome a strong presumption that counsel "rendered adequate assistance and made all significant decisions in the exercise of reasonable professional judgment." Strickland v. Washington, 466 U.S. 668, 690, 104 S.Ct. 2052, 2066, 80 L.Ed.2d 674 (1984). Under Strickland, a defendant seeking reversal on this ground "must establish both deficient performance and resulting prejudice." Olson, 925 F.2d at 1173. To establish deficient performance, the defendant must first demonstrate that counsel not merely committed errors, but rather performed outside the "wide range of professionally competent assistance."

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Strickland, 466 U.S. at 690, 104 S.Ct. at 2066. Under Strickland's second, prejudice prong, the defendant must also meet the substantial burden of showing that "there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Id. at 694, 104 S.Ct. at 2068. Under the Court's recent explication of Strickland's second prong, prejudice analysis "focussing solely on mere outcome determination, without attention to whether the result of the proceeding was fundamentally unfair or unreliable, is defective." Lockhart v. Fretwell, --- U.S. ----, ----, 113 S.Ct. 838, 842, 122 L.Ed.2d 180 (1993).

Viewed literally as a jurisdiction argument, Palomba's first contention of error plainly lacks merit. See 18 U.S.C. Sec. 3231 (conferring original jurisdiction over federal offenses on federal district courts). Defense counsel's failure to raise this futile jurisdictional argument was not erroneous, much less deficient.

However, upon closer inspection, Palomba's first contention of error appears to be an imprecisely worded venue argument. In this case we deem such imprecision by a pro se party excusable given that "[o]ccasionally courts speak in terms of jurisdiction when they mean venue ... [without converting] venue problems into problems involving subject matter jurisdiction." United States v. Roberts, 618 F.2d 530, 537 (9th Cir.1980). Accordingly, we reach the merits of Palomba's argument.

Because the record does not clearly demonstrate that the transmissions underlying counts 1-6 originated from, passed through, were received in, or were orchestrated from Northern California, these crimes were evidently not "committed" there for venue purposes. See...

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