                                                                            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                               NOT FOR PUBLICATION                           JAN 04 2010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.




                                     Page 3 of 4
      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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