FILED
NOT FOR PUBLICATION JAN 04 2010
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U .S. C O U R T OF APPE ALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 08-10343
Plaintiff - Appellee, D.C. No. 1:07-cr-00109-LJO
v.
MEMORANDUM *
MICHAEL DAVID RAMIREZ,
Defendant - Appellant.
Appeal from the United States District Court
for the Eastern District of California
Lawrence J. O’Neill, District Judge, Presiding
Argued and Submitted December 3, 2009
San Francisco, California
Before: B. FLETCHER, THOMAS and N.R. SMITH, Circuit Judges.
Defendant Michael Ramirez appeals the district court’s denial of his motion
for a new trial on the basis of ineffective assistance of counsel. We affirm.
Because the parties are familiar with the factual and procedural history of this case,
we will not recount it here.
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
Because the parties discussed the Appellant’s Emergency Motion to
Supplement Record on Appeal Due to Newly Produced Evidence at the hearing,
we granted the Motion.
This panel reviews de novo claims of ineffective assistance of counsel.
United States v. Benlian, 63 F.3d 824, 826 (9th Cir. 1995). In Strickland v.
Washington, 466 U.S. 668 (1984), the Supreme Court established the test for
analyzing ineffective assistance of counsel claims. The panel must determine: “(1)
whether the performance of counsel was so deficient that he was not functioning as
‘counsel’ as guaranteed under the Sixth Amendment; and (2) whether this deficient
performance prejudiced the defendant by depriving him of a fair trial.” United
States v. Davis, 36 F.3d 1424, 1433 (9th Cir. 1994) (citing Strickland, 466 U.S. at
691–92). Under Strickland, the panel determines “not what defense counsel could
have pursued, but rather whether the choices made by defense counsel were
reasonable.” Siripongs v. Calderon, 133 F.3d 732, 736 (9th Cir. 1998) (emphasis
added).
1. Ramirez argues that his counsel Chase’s performance was deficient in four
respects: (1) Chase failed to adequately communicate with Ramirez; (2) Chase
failed to adequately conduct pre-trial investigation; (3) Chase failed to prepare the
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testimonies of several witnesses; and (4) Chase failed to prepare a cohesive
defense. We disagree.
As to the first argument, the record reflects that the government presented
extensive evidence that: (1) Chase communicated the government’s plea offers to
Ramirez; (2) Chase met with Ramirez on two occasions; and (3) Chase met with
Ramirez’s family members on numerous other occasions. Telephone records
indicate that Chase also communicated with Ramirez and his family extensively by
phone and email.
As to the second argument, Chase hired two computer experts, consulted
with Ramirez’s brothers Noah and Ricky, pressed Noah to produce work records
verifying Noah’s alibi, and declined to investigate those leads that had little chance
of success. Chase adequately investigated Ramirez’s case.
As to the third argument, Chase admittedly did little to prepare the testimony
of Ricky Ramirez. This, however, was a strategic decision, as Chase wanted to
discredit Ricky in order to bolster the defense that Ricky was the guilty party. As
to the testimony of Noah Ramirez, while Chase focused on the wrong date, Noah
Ramirez’s testimony was not credible or corroborated, despite attempts to obtain
corroborating information.
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As to the fourth argument, Chase developed a coherent theory that was
consistent throughout trial. He emphasized that, although there was child
pornography on Ramirez’s hard drive, somebody else likely put it there, namely
Ricky. There was nothing unreasonable about Chase’s defense strategy.
2. Even if Chase’s performance was deficient, Ramirez fails to show that it
deprived him of a fair trial. There was overwhelming evidence of Ramirez’s guilt.
First, Ramirez signed a written confession and told officers that he downloaded
and viewed child pornography. Second, neither of the defense’s expert witnesses
could testify with any degree of certainty that the evidence exculpated Ramirez.
Third, Ramirez could not prove his alibi at trial and did not put forth any credible
evidence that he actually had an alibi in his motion for a new trial or on appeal. In
fact, the Employment Development Department produced records that showed
Ramirez was not registered as employed and was drawing unemployment benefits
during the relevant time periods. Finally, the government produced substantial
evidence to show that the child pornography had been viewed on Ramirez’s laptop.
AFFIRMED.
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