Rodrigues v. U.S.A
| Decision Date | 01 February 2011 |
| Docket Number | CV. NO. 10-00406 DAE-KSC,CR. NO. 01-00078 DAE |
| Parties | GARY WAYNE RODRIGUES, Petitioner, v. UNITED STATES OF AMERICA, Respondent. |
| Court | U.S. District Court — District of Hawaii |
ORDER DENYING PETITIONER'S § 2255 MOTION
On January 7, 2011, the Court heard Petitioner's 28 U.S.C. § 2255 Motion to Vacate, Set Aside or Correct Sentence. Lawrence Tong, Assistant U.S. Attorney, appeared at the hearing on behalf of the Government; Eric Seitz, Esq., and Ronald Kim, Esq., appeared at the hearing on behalf of Petitioner. After reviewing Petitioner's motion and the supporting and opposing memoranda, the Court DENIES Petitioner's 28 U.S.C. § 2255 Motion to Vacate, Set Aside or Correct Sentence. (Doc. # 408.)
The underlying charges in the case stem from Petitioner Gary Wayne Rodrigues' ("Petitioner") conduct while serving as the State Director of the United Public Workers, AFSCME Local 646, AFL-CIO ("UPW"). ("Opp'n, " Doc. # 413at 3.) Hawaii Dental Services ("HDS") and the Pacific Group Medical Association ("PGMA") entered into contracts with the UPW, negotiated by Petitioner, to provide dental and health insurance to UPW members.1 (Id at 3, 11.) In negotiating these contracts, Petitioner asked the insurance providers to pay a percentage of the premiums received from UPW to UPW-designated "consultants." (Id. at 4.) Once agreed, Petitioner inserted provisions into the insurance contracts, whereby UPW would pay "consultant fees" as a part of their insurance premiums to HDS and PGMA. (Id) The insurance companies, in turn, would provide the premiums to the UPW-designated consultant. (Id.)
The consultants in this scheme were Al Loughrin ("Loughrin"), and later, Petitioner's daughter Robin Haunani Rodrigues Sabatini ("Sabatini"), who at different times received the consulting fees from UPW. (Id at 3, 5.) Loughrin was the "UPW Consultant" from October 2, 1992 until March 16, 1994. (Id at 5 ().) Loughrin was also the stepfather of Petitioner's girlfriend and secretary, Georgietta Carol, to whom Petitioner owed $10,000. (Opp'n at 5.)
Between 1992 and 1994, HDS paid Loughrin $14,430.21 in "consulting fees." (Id.) Loughrin's widow and Carol both testified that Loughrin did not perform any consulting work for UPW in exchange for the fees. (Id. at 5.)
On March 16, 1994, Petitioner informed HDS that Loughrin was no longer a UPW consultant and directed that all consultant fees should be held until a new consultant was designated. (Id at 6.) Thereafter, Petitioner designated Four Winds RSK, Inc. ("Four Winds") of Kapaa, Kauai as the "consultant." (Id at 6 (citing ER at 84-86).) Sabatini was the sole shareholder of Four Winds, which was incorporated on February 13, 1996.2 (Id. at 6 (citing ER 119-125.) Beginning on March 26, 1996 and through 1997, HDS continued to make quarterly payments to Four Winds.3 (Id. at 6 (citing ER at 85-117).) At trial, various witnesses testified that they had no contact with Four Winds other than to send it checks and that they had never seen any work produced by Sabatini. (Id. at 7.) In late 1997, attention was drawn to Four Winds, 4 so Sabatini transferred Four Winds' assets to a newcompany called Auli'i, Inc., which was incorporated using only her middle and maiden names. (Opp'n 7-8.) HDS began to indirectly make payments to Auli'i, Inc. in 1998. Petitioner had HDS pay the consulting fees to Voluntary Employees Benefit Association of Hawaii ("VEBAH").5 VEBAH would then pay the fees to Management Applied Programming ("MAP"), which in turn paid Auli'i, Inc. (Id. at 8.) Sabatini at this time tried to make it seem as though she had performed consulting work, but in actuality all the documentation and work she submitted to MAP had been done by UPW employees. (Id. at 9.)
On April 10, 2002, the United States Government filed its Second Superseding Indictment ("Indictment") against Petitioner. (Doc. # 66.) The 102-count indictment included the following counts:
Counts 1-50, 18 U.S.C. § 1341: Mail Fraud.
Counts 51-55, 29 U.S.C. § 501: Embezzlement.
Counts 56, 18 U.S.C. § 1347: Scheme to Defraud a Health Care Program.
Count 57, 95, 18 U.S.C. § 1956: Money Laundering Conspiracy.
Counts 58-94, 96-100, 18 U.S.C. § 1956: Money Laundering.
Count 101, 18 U.S.C. § 982: Forfeiture.
Count 102, 18 U.S.C. § 1954: Acceptance of Kickbacks in Connection with an Employee Welfare Benefit Plan.
Trial began on October 1, 2002, and the Government rested on November 8, 2002. On November 12, 2002, Petitioner filed a Motion for Judgment of Acquittal (Doc. # 170), which the Court denied on November 13, 2002 (Doc. # 173). The Court, however, found there was insufficient evidence to support the Government's "money or property" theory as to the mail fraud charges in Counts 1-50, but allowed the Government to proceed on its alternative theory that Petitioner schemed to deprive UPW and its members of their right to his honest services. (Doc. # 173.)
On November 19, 2002, the jury returned a verdict finding Petitioner guilty of all counts. (Doc. # 188.) The Court subsequently dismissed Count 101: Forfeiture, leaving Counts 1-100 and 102. On September 30, 2003, the Court sentenced Petitioner to sixty months as to Counts 1-55, sixty-four months as to Counts 56-100, and thirty-six months as to Count 102, with all terms to runconcurrently. (Doc. # 245.) On September 30, 2003, Petitioner filed a notice of appeal.
On June 11, 2007, the Ninth Circuit Court of Appeals affirmed the jury's verdict and ordered a limited remand pursuant to United States v. Ameline, 409 F.3d 1073 (9th Cir. 2005).6 Specifically, the Ninth Circuit ordered "a limited remand for the sentencing judge to determine whether... he would have imposed the same sentences if he had known the guidelines were advisory." United States v. Rodrigues, Nos. 03-10549, 04-10027, 2007 WL 1675012, at *4 (9th Cir. June 11, 2007.) On September 28, 2007, this Court issued an Order Affirming Sentences. (Doc. # 329.) On October 2, 2007, this Court vacated its September 28, 2007 Order Affirming Sentences, finding that the views of counsel should be obtained in writing before deciding whether to resentence. (Doc. # 334.) On October 31, 2007, the Court affirmed Petitioner's sentence and Petitioner was ordered to self-surrender to begin service of his sentence on January 7, 2008. (Doc. # 343.)
On February 9, 2008, the United States Supreme Court denied Petitioner's petition for a writ of certiorari. See Rodrigues v. United States, 552 U.S. 1186 (2008).
On July 16, 2010, Petitioner filed the instant 28 U.S.C. § 2255 Motion ("Motion"), seeking to vacate his conviction as to all counts. ("Mot., " Doc. # 408.) On October 4, 2010, the Government filed its Opposition to the Motion. (Doc. # 413.) On the same day, the Government also filed the Government's Excerpts of Record in Support of Government's Opposition. ("ER, " Doc. # 414.) On November 16, 2010, Petitioner filed a Reply. ("Reply, " Doc. # 418.)
The Court's review of a petitioner's motion is provided for by statute:
A prisoner in custody under sentence of a court established by Act of Congress claiming the right to be released upon the ground 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, may move the court which imposed the sentence to vacate, set aside or correct the sentence.
28 U.S.C. § 2255. The scope of collateral attack of a sentence under § 2255 is limited and it does not encompass all claimed errors in conviction and sentencing. United States v. Addonizio, 442 U.S. 178, 185 (1979). A one-year statute oflimitations is provided for in the statute, the limitation period to run from the latest of several possible dates.7 See 28 U.S.C. § 2255(f).
Under § 2255, the court shall hold an evidentiary hearing on a petitioner's motion "unless the files and records of the case conclusively show that the prisoner is entitled to no relief." 28 U.S.C. § 2255(b). The standard for holding an evidentiary hearing is whether the petitioner has made specific factual allegations that, if true, state a claim on which relief could be granted. United States v. Schaflander, 743 F.2d 714, 717 (9th Cir. 1984).
An evidentiary hearing is not required if the petitioner's allegations, "when viewed against the record, do not state a claim for relief or are so palpably incredible or patently frivolous as to warrant summary dismissal." U.S. v. Leonti, 326 F.3d 1111, 1116 (9th Cir. 2003). Mere conclusory statements, without supporting evidence, are not sufficient to require a hearing. United States v. Johnson, 988 F.2d 941, 945 (9th Cir. 1993). Although the moving party is notrequired to detail his evidence, he must "make factual allegations" to establish his right to a hearing. United States v. Hearst, 638 F.2d 1190, 1194 (9th Cir. 1980). The Court has discretion to ascertain whether a claim is substantial before granting a full evidentiary hearing. Sanders v. United States, 373 U.S. 1, 18 (1963). That discretion is limited, however, when a petitioner claims that he or she instructed his or her attorney to file an appeal and the attorney failed to do so. United States v. Sandoval-Lopez, 409 F.3d 1193, 1197 (9th Cir. 2005). In such situations, evidentiary hearings generally are necessary to determine whether the petitioner, in fact, made such an express instruction. See id.
Petitioner seeks to vacate his sentence as to Counts 1-100 and 102. (Mot. at 1.) Petitioner's primary contention is that his conviction for honest services fraud is constitutionally barred given the Supreme Court's recent decision in Skilling v. United States, 130 S. Ct. 2896 (2010), where the Supreme Court narrowed the construction of 18...
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