U.S. v. Rodrigues

Decision Date27 October 2003
Docket NumberNo. 02-17311.,02-17311.
Citation347 F.3d 818
PartiesUNITED STATES of America, Plaintiff-Appellee, v. Jess A. RODRIGUES, Defendant-Appellant.
CourtU.S. Court of Appeals — Ninth Circuit

Gerald F. Uelmen, Santa Clara University School of Law, Santa Clara, California, for the defendant-appellant.

Robin L. Harris, Assistant United States Attorney, San Francisco, California, for the plaintiff-appellee.

Appeal from the United States District Court for the Northern District of California; Ronald M. Whyte, District Judge, Presiding. D.C. Nos. CV-00-20862-RMW, CR-94-20031-RMW.

Before: J. Clifford Wallace, Cynthia Holcomb Hall, and Diarmuid F. O'Scannlain, Circuit Judges.

CYNTHIA HOLCOMB HALL, Circuit Judge:

Jess Rodrigues appeals the district court's dismissal of his 28 U.S.C. § 2255 federal habeas petition. Rodrigues argues that the district court erred by denying his request for an evidentiary hearing to examine alleged conflicts of interest on the part of defense counsel. The panel has jurisdiction pursuant to 28 U.S.C. § 1291. Because Rodrigues has alleged no specific facts that, if true, would entitle him to relief under the actual conflict standard articulated in Cuyler v. Sullivan, 446 U.S. 335, 100 S.Ct. 1708, 64 L.Ed.2d 333 (1980), we AFFIRM.

FACTS
A. Background

Rodrigues owned and operated Saratoga Savings and Loan Association ("Saratoga") from 1982 to 1989. While under Rodrigues's control, Saratoga entered into several loan agreements with Richard Cristina, Murray Hall, Ronald Tate, and David Lazares to finance real estate ventures in San Francisco, San Jose, and Marina, California. In return for securing favorable loan terms for these applicants, Rodrigues received a personal stake in the underlying real estate ventures.

In November 1989, the Resolution Trust Corporation (RTC)1 seized Saratoga and placed it under conservatorship. On May 24, 1990, the RTC was formally appointed as Saratoga's receiver. At that time, Saratoga's assets were liquidated and transferred to a new, federally chartered savings and loan.

Although Saratoga was no longer in his control after 1989, Rodrigues continued to own and operate California Housing Securities, Inc. ("Cal Housing"), Saratoga's parent company. In April 1992, Cal Housing received a $3.4 million tax refund for the tax years ending in 1984 and 1985. Around this time, Rodrigues filed suit against KPMG, an accounting firm, alleging that KPMG negligently performed tax and audit work for Saratoga.2

On March 30, 1994, a federal grand jury returned an indictment charging Rodrigues with 47 counts relating to his management of Saratoga, his participation in various real estate ventures, and his personal use of the 1992 Cal Housing tax refund. Nineteen counts were eventually tried to a jury, fourteen of which related to the real estate ventures, and five of which related to the Cal Housing tax refund.

B. The relationship between Rodrigues, Joseph Russoniello, Cooley Godward, KPMG, and the RTC

Stephen C. Neal was lead defense counsel for Rodrigues. When Rodrigues originally retained Neal, Neal was a partner in the law firm of Kirkland & Ellis. On March 31, 1995, Neal left Kirkland & Ellis to join Cooley Godward.

Joseph Russoniello, the former U.S. Attorney for the Northern District of California, is a partner at the Cooley firm. Russoniello was involved in the early stages of the Rodrigues investigation during his tenure as U.S. Attorney. By the time Rodrigues was charged, Russoniello had left his position as U.S. Attorney to join Cooley. Russoniello did not participate in the Rodrigues case after joining Cooley, and appears to have been screened off from the matter. Both Rodrigues and the prosecutor were aware that Russoniello was one of Neal's partners at the Cooley firm.

Before Neal joined Cooley, the firm had represented the RTC in a significant litigation. There was a two week overlap in which Cooley concurrently represented both Rodrigues and the RTC, during which Cooley billed 0.4 hours of time to the RTC. By the time Rodrigues's trial began, Cooley no longer represented the RTC.3 Cooley did not advise Rodrigues about its previous work for the RTC.

On December 20, 1995, while representing Rodrigues, Cooley was engaged by KPMG to provide real estate planning advice to a KPMG individual client. Cooley billed $671.50 to KPMG in connection with the matter. On December 6, 1996, Cooley was engaged to provide estate planning services to another KPMG client. Cooley billed $927.50 to KPMG in connection with the matter. Cooley did not advise Rodrigues about its relationship with KPMG.

C. The Rodrigues trial and appeal

The prosecution's case against Rodrigues centered on testimonial and documentary evidence about four real estate transactions involving Rodrigues, Ronald Tate, David Lazares, Richard Cristina, and Murray Hall.

The prosecution introduced evidence that, on January 18, 1984, Rodrigues signed a letter on behalf of Saratoga committing Saratoga to participate in a joint venture with Tate and Lazares to purchase property located on Lick Avenue, in San Jose, California ("the Lick Avenue property"). Rodrigues later substituted himself for Saratoga and, in return for his role in the transaction, was given a one-third personal interest in the Lick Avenue property.

Later that same year, Rodrigues, Tate, and Lazares entered into a second joint venture to purchase a $500,000 property in Marina, California ("the Marina property"). In November 1984, Saratoga funded the closing by providing $456,000 to Tate and Lazares. Saratoga took no fees, and received only a normal rate of return on the loan. Rodrigues received a one-third interest in the Marina property in exchange for his role in the transaction.

In June 1985, Tate and Lazares sought a $1.6 million loan to purchase the Continental Can warehouse property in San Jose, California ("the Continental Can property"). Rodrigues told Tate and Lazares that they could each draw $800,000 on their personal lines of credit at Saratoga. According to Tate, Rodrigues originally informed them that Saratoga would charge a $200,000 fee for making the funds available, but later agreed to take a one-third interest in the Continental Can property in lieu of a fee. Rodrigues personally took a one-third interest in the property, and received one-third of the profit when it was sold in 1986.

In addition to the transactions involving Tate and Lazares, the prosecution also presented evidence that Rodrigues entered into a joint venture in 1984 with Richard Cristina and Murray Hall to purchase the Cinnabar Building, a warehouse in San Jose, California ("the Cinnabar property"). In connection with the transaction, Rodrigues arranged for Saratoga to provide Cristina and Hall with a $400,000 personal line of credit with no fees. As in the other real estate transactions, Rodrigues received a one-third interest in the property. Rodrigues did not record or disclose his personal interest in the Lick Avenue, Marina, Continental Can, or Cinnabar properties.

The prosecution also presented evidence that Cal Housing received a large tax refund in 1992 for the tax years ending in 1984 and 1985. The prosecution's evidence indicated that Rodrigues used approximately $1.2 million of the Cal Housing refund to pay off a loan on his personal residence, to open a personal checking account and a personal securities account, and to pay a bonus to the accountant who filed the tax returns.4

Rodrigues was convicted on all counts charged and sentenced to 36 months in prison, a $150,000 fine, and $3.6 million in restitution. After nine of the nineteen counts were reversed on appeal, including all of the counts related to the 1984 and 1985 tax refunds,5 the district court reduced Rodrigues's sentence to time served, a fine of $7500, and restitution of $1.5 million.6 This court affirmed the remainder of the conviction, holding that "there was no substantial dispute that [Rodrigues] received a benefit, that Saratoga lost a benefit, and that Rodrigues failed to disclose his interest." United States v. Rodrigues, 159 F.3d 439, 446 (9th Cir. 1998).

On July 31, 2001, Rodrigues brought a 28 U.S.C. § 2255 federal habeas corpus petition alleging due process violations and ineffective assistance of counsel. On October 17, 2001, the district court granted the motion in part and denied it in part. The court rejected Rodrigues's claim that he was denied effective assistance of counsel as a result of former U.S. Attorney Joseph Russoniello's status as a partner of the Cooley firm, and as a result of Cooley's concurrent representation of KPMG, RTC, and Rodrigues. After holding an evidentiary hearing on several other issues not presented in this appeal, the district court denied the petition in its entirety. This appeal followed.

STANDARD OF REVIEW

We review the denial of a 28 U.S.C. § 2255 petition de novo. United States v. McMullen, 98 F.3d 1155, 1156 (9th Cir.1996). Ineffective assistance of counsel claims are also reviewed de novo. Id. at 1157. A district court's decision to deny a motion for an evidentiary hearing is reviewed for an abuse of discretion. Id.

ANALYSIS
A. The Sullivan "Actual Conflict" Standard

In general, ineffective assistance of counsel claims are analyzed under the Strickland test, which has two components: "First, the defendant must show that counsel's performance was deficient.... Second, the defendant must show that the deficient performance prejudiced the defense. This requires showing that counsel's errors were so serious as to deprive the defendant of a fair trial." Strickland v. Washington, 466 U.S. 668, 678, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). In the conflict of interest context, however, a defendant is relieved of the burden to prove prejudice. Instead, prejudice is presumed if a defendant demonstrates that his counsel labored under an ...

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