United States v. Su
| Decision Date | 20 March 2019 |
| Docket Number | Case No. 11-cr-00288-JST,Case No. 17-cv-02885-JST |
| Parties | UNITED STATES OF AMERICA, Plaintiff, v. SUSAN XIAO-PING SU, Defendant. |
| Court | U.S. District Court — Northern District of California |
Before the Court are numerous pro se motions filed by Defendant Susan Su: (1) a motion for reconsideration of the Court's May 18, 2018 order, see ECF No. 262, denying Su's motion to vacate her sentence under 28 U.S.C. § 2255, ECF Nos. 269, 271, 291; (2) a motion for a sentence reduction under 18 U.S.C. § 3582(c)(2), ECF No. 275; and (3) two motions for bail pending appeal, ECF Nos. 288, 289. For the reasons that follow, the Court will deny the motions.1
From September 2008 to January 2011, Su created and ran Tri-Valley University ("TVU"), a school in Pleasanton, California that collected tuition and other fees from non-immigrant aliens in return for maintaining their student visa status. ECF No. 199 at 2. Su defrauded its students and the federal government, collecting at least $5.6 million in "tuition fees,"and using those funds to purchase a number of properties. Id.
On March 24, 2014, after a three-week trial, the jury unanimously found Su guilty of all 31 counts charged against her. ECF No. 209. The charges included wire fraud (18 U.S.C. § 1343); mail fraud (18 U.S.C. § 1341); conspiracy to commit visa fraud (18 U.S.C. § 371); visa fraud (18 U.S.C. § 1546(a)); use of a false document and false statements (18 U.S.C. § 1001(a)(3)); alien harboring (18 U.S.C. §§ 1324(a)(1)(A)(iii), (a)(1)(A)(v)(II), (a)(1)(B)(i)); unauthorized use of a government computer (18 U.S.C. § 1030(a)(3)); and money laundering (18 U.S.C. § 1957(a)). ECF No. 199 at 2.2
Subsequently, Su filed motions for a judgment of acquittal and new trial under Federal Rules of Criminal Procedure 29(c) and 33. ECF Nos. 166, 167. On October 31, 2014, this Court denied both motions and sentenced Su to 198 months' imprisonment. ECF No. 203. In determining the sentence, the Court adopted the recommendations in the Presentence Report with only minor exceptions not relevant here, and set Su's offense level at 40 under the United States Sentencing Guidelines ("Guidelines"). ECF No. 213 at 58, 69-70. When applied to Su's criminal history score of 0, that offense level yielded a sentencing range of 292 to 365 months. ECF No. 194 ¶¶ 73-80. But the Court departed downward four levels after considering the factors set forth in 18 U.S.C. § 3553(a). See ECF No. 213 at 44, 75-78.
The Court also ordered restitution in the amount of $1,015,795.64 and entered a forfeiture order permitting the United States to take possession of all proceeds and property traceable to her offenses. See id.; ECF Nos. 208, 226.
On November 3, 2014, Su appealed her convictions and sentence to the Ninth Circuit. ECF No. 205. The Ninth Circuit affirmed. United States v. Su, 633 Fed. Appx. 635 (9th Cir. 2015). On May 16, 2016, the Supreme Court denied certiorari. Su v. United States, 136 S. Ct. 2043 (2016); ECF No. 235 at 79.
On May 15, 2017, Su filed a motion to vacate her sentence pursuant to 28 U.S.C. § 2255. ECF No. 235.3 The Court denied the motion on May 18, 2018, holding that all of Su's claims were either procedurally barred or non-reviewable; the Court also declined to issue a certificate of appealability. ECF Nos. 262, 265.
On May 30, 2018, Su filed a notice of appeal. ECF No. 267. She then filed a motion for reconsideration with this Court on June 15, 2018. ECF No. 269.4 The Court initially denied the motion because it concluded that it lacked jurisdiction to decide the motion due to Su's pending appeal. ECF No. 270.
On July 11, 2018, while that appeal was pending, Su filed a motion for a reduction in sentence under 18 U.S.C. § 3582(c)(2). ECF No. 275.
On November 5, 2018, the Ninth Circuit concluded that the notice of appeal did not divest the Court of jurisdiction over Su's motion for reconsideration and remanded Su's appeal "for the limited purpose of permitting [this Court] . . . to consider the June 15, 2018 motion on its merits," while holding the appeal in abeyance. ECF No. 290 at 2.
With this guidance, the Court now considers Su's motion for reconsideration on the merits. Because, as explained below, Su's motion for a sentence reduction also seeks to amend her pending § 2255 petition, the Court resolves that motion in this same order.
The Court first considers Su's motion for reconsideration. ECF Nos. 269, 271.
The Ninth Circuit has stated that "[m]otions for reconsideration after a final order are . . . available in § 2255 cases." United States v. Martin, 226 F.3d 1042, 1047 n.7 (9th Cir. 2000). Further, the Ninth Circuit has suggested that "it makes sense to conclude that a motion for reconsideration of an order finally resolving a § 2255 petition must meet the time limits set in Rule 59(e)" of the Federal Rules of Civil Procedure. Id. The Ninth Circuit's remand in this case, which cites Federal Rule of Appellate Procedure 4(a)(4), further confirms that the Court should treat Su's motion as a "motion[] under the Federal Rules of Civil Procedure" subject to "the time allowed by those rules." Fed. R. App. P. 4(a)(4)(A).
Because Su's motion for reconsideration was filed within 28 days, the Court therefore construes it as motion to alter or amend a judgment under Rule 59(e). See Am. Ironworks & Erectors Inc. v. N. Am. Constr. Corp., 248 F.3d 892, 898-99 (9th Cir. 2001).
A motion under Rule 59(e) "should not be granted, absent highly unusual circumstances, unless the district court is presented with newly discovered evidence, committed clear error, or if there is an intervening change in the law." McDowell v. Calderon, 197 F.3d 1253, 1255 (9th Cir. 1999) (emphasis in original) (quoting 389 Orange St. Partners v. Arnold, 179 F.3d 656, 665 (9th Cir. 1999)). A district court does not commit clear error warranting reconsideration when the question before it is a debatable one. See McDowell, 197 F.3d at 1256 ().
Courts construing Rule 59(e) have noted that a motion to reconsider is not a vehicle permitting the unsuccessful party to "rehash" arguments previously presented, or to present "contentions which might have been raised prior to the challenged judgment." Costello v. United States, 765 F.Supp. 1003, 1009 (C.D. Cal. 1991). These holdings "reflect[ ] district courts' concerns for preserving dwindling resources and promoting judicial efficiency." Id.
In her original § 2255 motion, Su raised four challenges to her convictions. First, Su argued that her mail and wire fraud convictions should be vacated because her conduct fell outside the scope of the statutes. ECF No. 244 at 3. She claimed that, for the purposes of 18 U.S.C. §§ 1341, 1343, money or property must be obtained from the deceived party, and the I-17 and I-20 forms that were fraudulently obtained from the Department of Homeland Security (DHS) were certificates that did not constitute "property" in the hands of the DHS. Id. at 3, 5-24. Su asserted the jury instructions did not properly require the jury to determine whether the deceived party suffered a pecuniary loss. Id. at 23-24.
Second, Su argued that her visa fraud convictions should be vacated because the I-20 forms employed in her scheme were not among the documents covered under 18 U.S.C. § 1546(a). Id. at 24-25, 27-29. She asserted that an element of the offense was identification of the I-20 as a document prescribed by statute and that this determination should have been submitted to the jury. Id. at 29-31. Su took the position that this alleged error created a constructive amendment triggering automatic reversal. Id. at 32-33.
Third, Su argued that her alien harboring convictions should be vacated because the two individuals she shielded from immigration authorities were not "illegal aliens." Id. at 34, 36-40. She claims these individuals maintained valid F-1 visa status during the relevant period because they were rightfully employed on TVU's campus as permitted by 8 C.F.R. § 214.2(f)(6)(i)(H). Id. at 37-39.
Fourth, Su argued that her money laundering convictions should be vacated because they presented an intrinsic merger problem with her other convictions. Id. at 40, 42-54. She claimed the jury was not properly instructed that, under the money laundering statute, "proceeds" are to be interpreted as "profits." Id. at 52-53. Su asserted this instruction did not permit the jury to determine whether her purchases of real estate and a car were integral components of her other convictions. Id. Su also argued that it was error for the Court to allow these purchases to be usedas evidence of criminal intent in her other convictions. Id. at 48.5
The Court rejected those claims. The Court concluded that the first and second claims failed because "Su is procedurally barred from presenting her arguments challenging the mail fraud, wire fraud, and visa fraud convictions because she failed to raise them on direct appeal and also fails to demonstrate cause and prejudice to overcome the procedural default." ECF No. 262 at 5 (citing Sanchez-Llamas v. Oregon, 548 U.S. 331, 351 (2006); Su, 633 F. App'x at 635). Moreover, the Court rejected Su's reply argument that actual innocence excused her procedural default because she presented no new evidence in support. ECF No. 262 at 6.
The Court concluded that the third and fourth claims were not reviewable because Su had unsuccessfully raised these arguments to the Ninth Circuit on direct appeal. See United...
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