USA v. Jayavarman

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF ALASKA
UNITED STATES OF AMERICA,
Respondent,
v.
JASON JAYAVARMAN,
Petitioner.
Case No. 3:13-cr-00097-SLG
ORDER RE SECTION 2255 PETITION
Before the Court at Docket 332 is Defendant Jason Jayavarman’s Amended
Motion Under 28 U.S.C. § 2255 to Vacate, Set Aside, or Correct Sentence by a
Person in Federal Custody.1 The government opposed at Docket 328. Mr.
Jayavarman replied at Docket 329.
BACKGROUND
A. Procedural History
On August 23, 2013, a grand jury indicted Mr. Jayavarman on six counts:
production of child pornography in violation of 18 U.S.C. §§ 2251(a) and (e);
transportation of child pornography in violation of 18 U.S.C. §§ 2252(a)(1) and
(b)(1); possession of child pornography in violation of 18 U.S.C. §§ 2252(a)(5)(B)
and (b)(2); engaging in illicit sexual conduct in a foreign place in violation of 18
1 Because Mr. Jayavarman did not sign or verify his original petition at Docket 316, the Court
dismissed it without prejudice and granted Mr. Jayavarman an opportunity to file an amended
verified petition. See Docket 331.
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U.S.C. § 2423(c); travel with intent to engage in illicit sexual conduct in violation of
18 U.S.C. § 2423(b); and travel with intent to engage in illicit sexual conduct in
violation of 18 U.S.C. §§ 2423(b) and (e).2
A superseding indictment was returned on September 17, 2014, charging
Mr. Jayavarman on just two counts: production and attempted production of child
pornography in violation of 18 U.S.C. §§ 2251(c) and (e); and attempt to travel with
intent to engage in sexual conduct in violation of 18 U.S.C. §§ 2423(b) and (e).3
The case proceeded to trial on those two counts.
At trial, the verdict form broke down the counts as follows: sexual
exploitation of a child (Count 1A), attempted sexual exploitation of a child (Count
1B), attempted travel with intent to engage in illicit sexual conduct (Count 2A),
attempt to aid and abet another person’s travel with intent to engage in sexual
conduct (Count 2B).4 The Court instructed the jury that “[a] separate crime is
charged on each count separately. Your verdict on one count should not control
your verdict on any other count. In this case, there are separate theories for each
count.” 5 The Court additionally instructed the jury on the elements of the four
2 Docket 12.
3 Docket 75.
4 Docket 130 at 1–3.
5 Docket 128 at 12.
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counts with four separate jury instructions.6 On March 23, 2015, after a five-day
trial, the jury found Mr. Jayavarman guilty of Counts 1B and 2B.7 The jury did not
reach a unanimous verdict on the remaining counts.8
Mr. Jayavarman was sentenced to a term of 216 months imprisonment on
both counts 1B and 2B, to be served concurrently, followed by a life term of
supervised relief.9 He appealed his conviction to the Ninth Circuit Court of
Appeals.10 A panel of the Ninth Circuit affirmed the conviction for attempted sexual
exploitation of a child (Count 1B) and vacated the conviction for attempt to aid and
abet travel with intent to engage in illicit sexual conduct (Count 2B).11 The Ninth
Circuit vacated the sentence as to both counts and remanded for resentencing,
reasoning that Mr. “Jayavarman’s sentence as to Count 1B was likely affected by
his conviction as to Count 2B.”12 On remand, Mr. Jayavarman was sentenced to
204 months followed by a life term of supervised release.13 Again, Mr. Jayavarman
6 Docket 128 at 14–23 (Instruction Nos. 13, 14, 15, and 16).
7 Docket 130.
8 Docket 130.
9 Docket 241 at 2.
10 Docket 23.
11 Docket 254 at 7–8 and 28. The Ninth Circuit accepted the government’s concession that the
conviction on Count 2B must be vacated because 18 U.S.C. § 2423 does not cover attempted
aiding and abetting. Id. at 7–8.
12 Docket 254 at 28.
13 Docket 299.
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appealed to the Ninth Circuit; however, on October 16, 2018, he voluntarily
dismissed his appeal.14 Mr. Jayavarman timely filed a motion to vacate pursuant
to 28 U.S.C. § 2255, seeking to vacate the sentence for ineffective assistance of
counsel.15 An amended motion with a verified signature by Mr. Jayavarman was
filed on August 10, 2020.16
B. Plea Agreement
Before trial, the parties discussed a possible plea agreement. On August
12, 2014, Mr. Jayavarman’s counsel, Rex Butler, wrote to Assistant United States
Attorney (“AUSA”) Audrey Renschen:
I met with my client and provided him with a copy of the various
scenarios, however, those certain scenarios we reviewed created
certain zones depending on certain circumstances but as things stand
today it appears we still do not have a particular offer. Please correct
me if I am mistaken.17
On August 13, 2014 AUSA Renschen replied:
There actually was a “particular offer” made at our August 17th, 3 pm
meeting in the United States Attorney’s Office . . . The offer extended
was to plead guilty to Count 6 of the Indictment – Travel with Intent to
Engage in Illicit Sexual Conduct (18 U.S.C. §§ 2423(b) and (e)), as
an attempt/aiding and abetting the travel of another – with open
14 Docket 301 and Docket 312.
15 Docket 316 at 8, 12. The judgment of conviction became final on October 16, 2018, when the
appeal was dismissed. Mr. Jayavarman filed his petition on October 7, 2019. See 28 U.S.C. §§
2255(f)(1).
16 Docket 332.
17 Docket 328-1 at 4.
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sentencing. . . . We agreed that you would respond by the end of last
week. At this point, we are proceeding with trial preparation.18
On August 13, 2014, Mr. Butler responded:
It certainly jogged my memory and you are correct. I recall these
things just as you have presented them here. I will go back down to
the jail and present this to my client and get back with you as soon as
possible. I’ve been in 3 back to back trials and have been in trial for
five straight weeks.19
On August 26, 2014, AUSA Renschen sent a formal, signed letter to Mr. Butler:
This letter is to confirm today’s telephone conversation about
extending the plea agreement offer until September 10, 2014. As you
know, and as I should have emphasized in our conversation, it is very
unusual to reopen a plea offer, but this is being done because of your
unexpected situation of being in three back to back trials for seven
straight weeks.
The offer is to plead guilty to Count 6 of the Indictment . . . . As you
know, the guilty plea to Count 6 carries no mandatory minimum prison
sentence. The most obvious and important benefit of the plea
agreement for your client is that Count 1, Production of Child
Pornography, will be dismissed. Mr. Jayavarman will thus avoid the
certainty of at least 15 years imprisonment – the mandatory minimum
sentence on that charge. (All charges other than Count 1 will also be
dismissed).
In order to benefit from this agreement, you must advise me on
or before noon on September 10th that your client wishes to accept
the plea agreement. This is a firm deadline. If you do not so advise,
the case will proceed to trial and no further plea offers will be possible.
. . .
18 Docket 328-1 at 5.
19 Docket 328-1 at 6.
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If Mr. Jayavarman accepts the offer by noon on September 10th, we
will quickly provide you with the written plea agreement . . . .20
Mr. Butler represents, in a declaration filed with the government’s opposition
to this motion, that he “went to Mr. Jayavarman to see if he would be willing to
resolve his case pretrial and presenting the information contained in the e-mail”
from AUSA Renschen.21 Mr. Butler further declares that “any offer, perceived or
real, was presented to Mr. Jayavarman” but that “he was not willing to resolve his
case pretrial” and “he rejected the offer.”22
DISCUSSION
To prevail on a claim of ineffective assistance of counsel, a petitioner must
show (1) that his “counsel’s representation fell below an objective standard of
reasonableness,” and (2) that “there is a reasonable probability that, but for
counsel’s unprofessional errors, the result of the proceeding would have been
different.”23 “The reasonableness of counsel’s performance is to be evaluated from
counsel’s perspective at the time of the alleged error and in light of all the
circumstances, and the standard of review is highly deferential.”24
20 Docket 317-1 at 1–2 (emphases in original).
21 Docket 328-1 at 3, ¶ 7.
22 Docket 328-1 at 3, ¶¶ 8–10.
23 Strickland v. Washington, 466 U.S. 668, 688, 694 (1984) (“A reasonable probability is a
probability sufficient to undermine confidence in the outcome.”).
24 Kimmelman v. Morrison, 477 U.S. 365, 381 (1986) (citing Strickland, 466 U.S. at 689).
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A district court should grant an evidentiary hearing on a § 2255 motion
“[u]nless the motion and the files and records of the case conclusively show that
the prisoner is entitled to no relief.”25 The burden on the petitioner to obtain an
evidentiary hearing is “fairly lenient,” but nonetheless requires him “to allege
specific facts which, if true, would entitle him to relief.”26 An evidentiary hearing is
not necessary if the petitioner’s allegations are “so palpably incredible or patently
frivolous as to warrant summary dismissal.”27
Mr. Jayavarman requests that the Court vacate his conviction based on
either of his two claims of ineffective assistance of counsel: (1) his counsel’s
alleged failure to communicate a formal plea offer prior to its expiration, and (2) his
counsel’s failure to object to an allegedly duplicitous indictment and to the jury
charge allowing for conviction on sub-counts of an indictment.28 Mr. Jayavarman
requests an evidentiary hearing as well as discovery pursuant to Rule 6 of the
Rules Governing Section 2255 Proceedings.29
25 28 U.S.C. § 2255(b).
26 United States v. Rodrigues, 347 F.3d 818, 824 (9th Cir. 2003) (quoting United States v.
McMullen, 98 F.3d 1155, 1159 (9th Cir. 1996)); see also United States v. Quan, 789 F.2d 711,
715 (9th Cir. 1986) (“Where a prisoner’s motion presents no more than conclusory allegations,
unsupported by facts and refuted by the record, an evidentiary hearing is not required.”).
27 United States v. McMullen, 98 F.3d at 1159 (quoting Marrow v. United States, 772 F.2d 525,
526 (9th Cir. 1985)).
28 Docket 316 at 8, 12.
29 Docket 329 at 3. Rule 6 provides that a “judge may, for good cause, authorize a party to
conduct discovery under the Federal Rules of Civil Procedure,” and requires the requesting
party to “provide reasons for the request” and “specify any requested documents.”
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For the following reasons, the Court determines that limited discovery and
an evidentiary hearing are warranted on Mr. Jayavarman’s first claim, but that Mr.
Jayavarman’s second claim is without merit and should be summarily dismissed.
A. Claim 1: the Plea Agreement
“Defense counsel has the duty to communicate formal offers from the
prosecution to accept a plea on terms and conditions that may be favorable to the
accused,” and if “defense counsel allowed the offer to expire without advising the
defendant or allowing him to consider it, defense counsel did not render the
effective assistance the Constitution requires.”30
To “show prejudice from ineffective assistance of counsel where a plea offer
has lapsed . . . defendants must demonstrate a reasonable probability they would
have accepted the earlier plea offer had they been afforded effective assistance of
counsel” and “demonstrate a reasonable probability the plea would have been
entered without the prosecution canceling it or the trial court refusing to accept
it.”31 The defendant must also “show a reasonable probability that the end result
of the criminal process would have been more favorable by reason of a plea to a
lesser charge or a sentence of less prison time.”32
30 Missouri v. Frye, 566 U.S. 134, 145 (2012); see also Turner v. Calderon, 281 F.3d 851, 879–
80 (9th Cir. 2002) (“Strickland’s two-prong test applies to ineffectiveness claims arising from the
plea process.”).
31 Missouri v. Frye, 566 U.S. 134, 147 (2012).
32 Missouri v. Frye, 566 U.S. 134, 147 (2012).
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Mr. Jayavarman contends that “Mr. Butler never communicated to him that
the Government had reopened plea negotiations prior to the September 10, 2014
deadline,”33 and that, accordingly, his “counsel’s performance was below that
guaranteed by the Sixth Amendment.”34 Mr. Jayavarman adds that he “would have
accepted the Government’s plea offer” and that it was “evident from the
Government’s letter that it would not have rejected Jayavarman’s acceptance if
provided prior to the September 10, 2014 deadline.”35 Mr. Jayavarman contends
that the “proper remedy under these circumstances would be to vacate [his]
conviction and sentence and for the government to re-offer its formal plea
agreement” for his consideration.36
The government, in contrast, maintains that “evidence shows that trial
counsel did convey the Government’s plea offer to Defendant.”37 Specifically, the
government emphasizes that “Defendant’s trial counsel has stated in his
declaration that he, in fact, communicated the Government’s plea offer to
Defendant and that Defendant rejected that offer.”38 The government adds that
33 Docket 317 at 9.
34 Docket 317 at 10.
35 Docket 317 at 11. Mr. Jayavarman emphasizes that the letter stated that if he “accepts the
offer by noon on September 10th, we will quickly provide . . . [a] written plea agreement and with
the Court’s permission, we will use the September 17th status hearing date for the guilty plea.”
Docket 317 at 11.
36 Docket 317 at 12.
37 Docket 328 at 7 (emphasis added).
38 Docket 328 at 8. The Court notes that Mr. Jayavarman was present at a September 22, 2014
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Mr. Jayavarman has not provided a declaration to the contrary.39
In his reply brief, Mr. Jayavarman disputes the significance of Mr. Butler’s
declaration, noting that none of the three communications with AUSA Renschen
on which Mr. Butler relies establishes that Mr. Butler met with Mr. Jayavarman or
that he conveyed the plea offer.40 Mr. Jayavarman contends that Mr. Butler never
visited him at the Anchorage Correctional Center between August 26, 2014, when
Mr. Butler received the formal offer letter, and September 10, 2014, when the offer
expired.41 Mr. Jayavarman requests that the Court order visitation logs from the
Anchorage Correctional Center between those dates, and order Mr. Butler to
provide any records evidencing a visit during that time.42
The Court finds that Mr. Jayavarman has met the “fairly lenient” burden to
obtain an evidentiary hearing on these claims by alleging specific facts, which if
status conference when Mr. Butler told the Court that “[c]ounsel did extend an offer . . . I did
discuss the matters with my client . . . [a]nd at this time, he prefers to go to trial.” Docket 330 at
3:21–25.
39 Docket 328 at 8. Although Mr. Jayavarman did not submit a declaration along with this
motion, at the resentencing in this case in June 2018, he stated that Mr. Butler had failed to
communicate the Government’s plea deal. See Docket 308 at 48:17–23 (“There were two
Government formal offers before trial, but my trial lawyer did not let me know, did not advise me
of the offer, did not allow me to consider. They just send me the copy of the form, and he never
talked to me. And every time when I called him, he either at another trial or he was out of town.
He never got to talk to me about the Government formal offers.”); see also Docket 308 at 50:1–
5 (“[A]bout the deal, he is supposed to talk to me because I could have taken the deal, so
maybe I get less time, and now it's – he did not tell me until now.”).
40 Docket 329 at 4–5.
41 Docket 329 at 6.
42 Docket 329 at 9.
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true, would entitle him to relief;43 Mr. Jayavarman has alleged that his counsel
failed to communicate to him a plea deal that he would have accepted.44
Accordingly, an evidentiary hearing is warranted to determine whether Mr. Butler
communicated the plea deal to Mr. Jayavarman, and if not, whether Mr.
Jayavarman would have accepted the plea offer.45
Further, the Court finds that there is good cause to authorize the limited
discovery requested by Mr. Jayavarman. Although Mr. Butler declares that he
communicated the formal offer to Mr. Jayavarman, the record before the Court
shows that on a prior occasion, Mr. Butler had inadvertently failed to communicate
a plea offer to Mr. Jayavarman before its expiration.46
Mr. Jayavarman seeks two categories of discovery. First, he requests a
copy of his visitor logs from the Anchorage Correctional Center for the period from
August 26, 2014 to September 10, 2014. Second, he requests any records or
documents of Mr. Butler’s evidencing that he visited Mr. Jayavarman or otherwise
43 Mr. Jayavarman contends that the plea offer “would have resulted in a reasonable probability
of a lesser sentence, as Jayavarman would not have been subject to the statute’s mandatory
minimum term of imprisonment and his Guidelines calculations would have produced a lower
range.” Docket 317 at 11. The government does not dispute that, if true, counsel’s failure to
disclose the offer was prejudicial. See generally Docket 328.
44 See United States v. Rodrigues, 347 F.3d 818, 824 (9th Cir. 2003) (requiring petitioner “to
allege specific facts which, if true, would entitle him to relief” (quoting United States v. McMullen,
98 F.3d 1155, 1159 (9th Cir. 1996))).
45 See United States v. Baylock, 20 F.3d 1458, 1466 (9th Cir. 1994) (remanding for an
evidentiary hearing to determine whether petitioner would have accepted the plea).
46 See Docket 328-1 at 5 (AUSA Renschen reminding Mr. Butler that there was a “particular
offer” made and that he had agreed to “respond by the end of last week”).
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communicated the plea offer to Mr. Jayavarman during the same time frame. The
Court orders the government to provide all documents it can obtain that are
responsive to these requests within 21 days of the date of this order. However, in
the likely event the government cannot obtain either the visitor logs or Mr. Butler’s
records, it should so inform Mr. Jayavarman, in which case Mr. Jayavarman is
authorized to seek these specific documents only directly from the third parties by
subpoena pursuant to Rule 45, Federal Rules of Civil Procedure.47
B. Claim Two: Duplicitous Indictment
Mr. Jayavarman contends that Count One of the Superseding Indictment
was erroneously duplicitous48 because it charged Mr. Jayavarman with the
substantive and attempted offenses in a single count:
Between on or about April 7, 2010 and on or about August 14, 2013,
in the District of Alaska and elsewhere, the Defendant Jason
Jayavarman, did, and did attempt to, employ, use, persuade, induce,
entice, and coerce a minor child to engage in any sexually explicit
conduct outside of the United States for purpose of producing a visual
depiction of such conduct and thereafter transported such visual
depiction to the United States by any means, including by using any
means or facility of interstate or foreign commerce.49
Mr. Jayavarman maintains that trial counsel should have objected to the duplicity
47 See Rule 6, Rules Governing Section 2255 Proceedings.
48 “[A]n indictment is duplicitous where a single count joins two or more distinct and separate
offenses.” United States v. UCO Oil. Co., 546 F.2d 833, 835 (9th Cir. 1976)).
49 Docket 317 at 13 (emphasis added) (quoting Docket 75).
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of Count One of the Superseding Indictment, thereby forcing the government “to
select which sub-count to proceed to trial on, rather than both being submitted to
the jury.”50 Mr. Jayavarman reasons that “there would be a fifty-fifty chance on
which sub-count the Government chose to pursue,” and in light of the jury’s failure
to reach unanimity on Count 1A, “there stands a reasonable probability that a
timely objection . . . would have resulted in a different outcome at trial.”51 In the
alternative, Mr. Jayavarman contends that counsel was ineffective for failing to
object to the Court’s jury instructions, which “allowed both sub-counts to proceed
to the jury.”52 He contends that the instructions and the verdict form improperly
allowed the jury to convict him on the individual sub-counts when, in fact, he could
only be found guilty of Count 1 of the Superseding Indictment if the jury found he
both “did and did attempt” to violate 18 U.S.C. §§ 2251(c) and (e).53 Because the
jury did not reach a unanimous decision on sub-count 1A, Mr. Jayavarman
concludes he should not have been found guilty of Count 1 at all.54 The
government, in contrast, maintains that “the jury instructions and the verdict form
properly remedied the duplicitous indictment,” as allowed by the Ninth Circuit.55
50 Docket 317 at 14.
51 Docket 317 at 14.
52 Docket 317 at 14–15.
53 Docket 317 at 15.
54 Docket 317 at 15–16.
55 Docket 328 at 9 (citing United States v. Ramirez-Martinez, 273 F.3d 903, 915 (9th Cir. 2001),
overruled on other grounds by United States v. Lopez, 484 F.3d 1186, 1188 & n.2 (9th Cir. 2007)
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But Mr. Jayavarman insists that “[r]ather than curing the duplicitous indictment, the
jury instructions and form improperly broadened the indictment, allowing for
conviction on each sub-count.”56
“[T]he rules about . . . duplicity are pleading rules, the violation of which is
not fatal to an indictment.”57 The Ninth Circuit has explained that a duplicitous
indictment can be remedied if “either (1) the government elects between the
charges in the offending count, or (2) the court provides an instruction requiring all
members of the jury to agree as to which of the distinct charges the defendant
actually committed.”58
Mr. Jayavarman’s contention that his counsel was ineffective for failing to
object to the indictment and causing the government to elect between the charges
in Count 1 is without merit. Although the government did not remedy the indictment
by selecting one of the charges, the Court did with its jury instructions, thereby
mooting any failure of counsel to object. The Court separated the two charges of
Count 1 into sub-count 1A (the substantive offense) and sub-count 1B (the
(en banc)).
56 Docket 329 at 10.
57 United States v. Ramirez-Martinez, 273 F.3d 903, 915 (9th Cir. 2001) (quoting United States v.
Robinson, 651 F.2d 1188, 1194 (6th Cir. 1981)), overruled on other grounds by United States v.
Lopez, 484 F.3d 1186, 1188 n.2 (9th Cir. 2007) (en banc).
58 United States v. Ramirez-Martinez, 273 F.3d 903, 915 (9th Cir. 2001) overruled on other
grounds by United States v. Lopez, 484 F.3d 1186, 1188 n.2 (9th Cir. 2007) (en banc).
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attempted offense) and instructed the jury on the elements of each.59 Moreover,
the verdict form also separated the charges of Count 1 into sub-counts60 and the
Court instructed the jury that “[a] separate crime is charged on each count
separately. Your verdict on one count should not control your verdict on any other
count. In this case, there are separate theories for each count.” 61
Mr. Jayavarman’s additional contention that his counsel was ineffective for
failing to object to the Court’s jury instructions as improperly allowing him to be
convicted on individual sub-counts is foreclosed by the Ninth Circuit’s
jurisprudence, which specifically provides that a court can remedy a duplicitous
indictment with its instructions by ensuring the jury agrees “as to which of the
distinct charges the defendant actually committed.”62
Mr. Jayavarman’s second claim presents a discrete legal issue as to which
there is no evidentiary dispute. Based on the foregoing, Mr. Jayavarman’s second
claim for relief based on a duplicitous indictment is summarily dismissed.63
59 See Docket 128 at 14–23 (Instructions 13, 14, 15, and 16).
60 Docket 130 at 1–3.
61 Docket 128 at 12.
62 United States v. Ramirez-Martinez, 273 F.3d 903, 915 (9th Cir. 2001) overruled on other
grounds by United States v. Lopez, 484 F.3d 1186, 1188 n.2 (9th Cir. 2007) (en banc). This
avoids the “vice of duplicity . . . that a jury may find a defendant guilty on that count without
having reached a unanimous verdict on the commission of a particular offense.” Id. at 913.
63 See United States v. McMullen, 98 F.3d 1155, 1159 (9th Cir. 1996) (explaining that no
evidentiary hearing is required when petitioner’s allegations are “so palpably incredible or
patently frivolous as to warrant summary dismissal” (quoting Marrow v. United States, 772 F.2d
525, 526 (9th Cir. 1985))).
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CONCLUSION
In light of the foregoing, Defendant’s Section 2255 Petition at Docket 316 is
DENIED as to claim two.64 A telephonic hearing to schedule the evidentiary
hearing shall be held on October 23, 2020 at 10:00 a.m. All parties shall attend
telephonically by dialing 877-402-9753 (use access code 6288202) from a landline
approximately five minutes before the scheduled hearing time. Defense counsel,
at his option, may make arrangements for the defendant to appear telephonically.
The government shall produce any documents or records responsive to Mr.
Jayavarman’s two discovery requests within 21 days of this order.
DATED this 22nd day of September, 2020 at Anchorage, Alaska.
/s/ Sharon L. Gleason
UNITED STATES DISTRICT JUDGE
64 The Court further finds that for his second claim, Mr. Jayavarman has not made the requisite
substantial showing of the denial of a constitutional right, and therefore a certificate of
appealability will not be issued by this Court. See Slack v. McDaniel, 529 U.S. 473, 484 (2000)
(certificate of appealability may be granted only if applicant made “substantial showing of the
denial of a constitutional right,” i.e., showing that “reasonable jurists could debate whether . . .
the petition should have been resolved in a different manner or that the issues presented were
adequate to deserve encouragement to proceed further” (internal quotations and citations
omitted)). Mr. Jayavarman may request a certificate of appealability from the Ninth Circuit Court
of Appeals.
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