FILED
NOT FOR PUBLICATION JAN 31 2011
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 09-15890
Plaintiff - Appellee, D.C. Nos. 4:07-cv-05583-CW
4:04-cr-40071-CW-1
v.
LAL BHATIA, MEMORANDUM*
Defendant - Appellant.
Appeal from the United States District Court
for the Northern District of California
Claudia A. Wilken, District Judge, Presiding
Submitted January 12, 2011**
San Francisco, California
Before: HUG, SCHROEDER, and RAWLINSON, Circuit Judges.
Appellant Lal Bhatia (Bhatia) was convicted of mail fraud and money
laundering. Bhatia challenges the district court’s denial of his 28 U.S.C. § 2255
motion. Bhatia contends that his trial counsel provided ineffective assistance of
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
**
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
counsel and that his money laundering convictions should be reversed pursuant to
United States v. Santos, 553 U.S. 507 (2008).
1. Bhatia’s counsel was not ineffective for failing to file a motion to suppress
evidence seized from Bhatia’s residence, as any omissions in the search warrant
affidavit regarding a civil lawsuit against Bhatia “would not have materially
affected the probable cause determination.” United States v. Casteneda, 511 F.3d
1246, 1251 (9th Cir. 2008).
2. The district court correctly denied Bhatia’s claim that his counsel failed to
investigate and prepare a valid defense to the mail fraud charges. Bhatia’s counsel
provided an adequate defense that Bhatia lacked the requisite intent to defraud and
his counsel’s representation did not “fall[ ] below an objective standard of
reasonableness.” Earp v. Cullen, 623 F.3d 1065, 1074 (9th Cir. 2010) (citation and
internal quotation marks omitted).
3. The district court properly denied Bhatia’s claim that his counsel was
ineffective due to a lack of experience. See Ortiz v. Stewart, 149 F.3d 923, 933
(9th Cir. 1998) (“In considering a claim of ineffective assistance of counsel, it is
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not the experience of the attorney that is evaluated, but rather, his performance.”)
(citation and parentheses omitted).
4. Assuming, without deciding, that it was improper for Bhatia’s attorney to
threaten to withdraw if Bhatia testified, Bhatia did not demonstrate that “there
[was] a reasonable probability that, but for counsel’s unprofessional errors, the
result of the proceeding would have been different” given the substantial evidence
of Bhatia’s guilt. Earp, 623 F.3d at 1074 (citations omitted).
5. The failure of Bhatia’s counsel to call additional witnesses, including a
witness mentioned by counsel during his opening statement, did not constitute
deficient performance, as any additional testimony would have been cumulative.
See Clabourne v. Lewis, 64 F.3d 1373, 1382 (9th Cir. 1995) (“[F]ailure to present
cumulative testimony does not amount to ineffective assistance.”) (citation and
parentheses omitted). In any event, there was not “a reasonable probability that,
but for counsel’s alleged errors, the results in [Bhatia’s] case would have been
different.” Young v. Runnels, 435 F.3d 1038, 1043 (9th Cir. 2006) (citations
omitted).
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6. The Supreme Court’s decision in Santos does not compel reversal of
Bhatia’s money laundering convictions, as his convictions were based on payments
independent of the misrepresentations upon which his mail fraud convictions were
premised. See United States v. Bush, 626 F.3d 527, 537 (9th Cir. 2010).
7. Bhatia’s claim based on prosecutorial and judicial misconduct does not
warrant expansion of the certificate of appealability as Bhatia has not “made a
substantial showing of the denial of a constitutional right.” United States v. Cruz,
423 F.3d 1119, 1120 (9th Cir. 2005) (citations and internal quotation marks
omitted).
AFFIRMED.
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