FILED NOT FOR PUBLICATION JUL 2 2024 UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
MATTHEW HOANG HO, AKA Mat No. 24-1883 Hoang Ho D.C. No. Petitioner, 8:23-cr-00051-JVS
v. MEMORANDUM* UNITED STATES DISTRICT COURT FOR THE CENTRAL DISTRICT OF CALIFORNIA, SANTA ANA,
Respondent,
UNITED STATES OF AMERICA,
Real Party in Interest.
Petition for Writ of Mandamus
Argued and Submitted June 5, 2024 Pasadena, California
Before: M. SMITH and BADE, Circuit Judges, and FITZWATER,** District Judge.
* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. ** The Honorable Sidney A. Fitzwater, United States District Judge for the Northern District of Texas, sitting by designation. Matthew Hoang Ho, M.D. (“Dr. Ho”) petitions for a writ of mandamus
directing the district court to vacate its February 26, 2024 order disqualifying Dr. Ho’s
retained attorneys—Brown White & Osborn LLP (“BWO”)—from representing him
in a criminal case. We have jurisdiction under 28 U.S.C. § 1651(a), and we deny the
petition.
Because the parties are familiar with the facts, we recount them here only to the
extent necessary to provide context for our ruling. Dr. Ho is charged with the
following offenses in connection with the submission of allegedly fraudulent loan
applications for COVID-related relief programs: conspiracy to commit wire fraud, in
violation of 18 U.S.C. § 1349; wire fraud and aiding and abetting wire fraud, in
violation of 18 U.S.C. §§ 1343 and 2(a); and money laundering and aiding and
abetting money laundering, in violation of 18 U.S.C. §§ 1956(a)(1)(B)(i) and 2(a) and
(b). Along with Dr. Ho, the government has also charged Hanna Dinh (“Hanna”) and
her brother, Anthony Dinh (“Anthony”). Hanna has pleaded guilty to conspiracy to
commit wire fraud, and the government has listed her as a witness whom it intends to
call at Dr. Ho’s trial. BWO represented Hanna earlier in this case.
In view of the government’s intent to call Hanna as a trial witness, the district
court disqualified BWO as Dr. Ho’s counsel based on its prior representation of
Hanna. The district court considered the likelihood that a conflict would actually arise
2 from Hanna’s testifying and concluded that there was a “serious potential for
conflict.” The district court reasoned that the government might call her to testify
about her knowledge of Dr. Ho’s activities in the conspiracy, or, at the very least, the
process the coconspirators used for their alleged fraud scheme; that this would create
an unethical situation where BWO would face the choice either of exploiting its prior,
privileged relationship with her or failing to defend Dr. Ho zealously for fear of
misusing confidential information. The district court also found that neither the
conflict of interest waivers that Dr. Ho had signed nor Dr. Ho’s proposed solution of
arranging for substitute counsel to cross-examine Hanna was sufficient to cure BWO’s
ethical dilemma.
Dr. Ho maintains that he is entitled to mandamus relief because the record
shows that the government does not in fact intend to call Hanna as a witness at trial,
and that prosecutors manufactured a conflict of interest so that Dr. Ho’s counsel of
choice would be disqualified, in violation of his Sixth Amendment right to counsel.
1. Mandamus “is a drastic and extraordinary remedy reserved for really
extraordinary causes.” Cheney v. U.S. District Court, 542 U.S. 367, 380 (2004)
(internal quotation marks and citation omitted). Because it is “one of the most potent
weapons in the judicial arsenal,” id. (internal quotation marks and citation omitted),
mandamus will not issue unless the district court’s decision involved a “clear abuse
3 of discretion or usurpation of judicial power,” Bankers Life & Cas. Co. v. Holland,
346 U.S. 379, 383 (1953) (internal quotation marks omitted). If the decision is merely
“erroneous” or even reversible, it will not be corrected by mandamus. See id. at 382.
2. “We determine whether mandamus relief is appropriate in a particular case
by reference to the guidelines set forth in Bauman v. United States Dist[rict] Court,
557 F.2d 650 (9th Cir. 1977).” Christensen v. U.S. District Court, 844 F.2d 694,
696–97 (9th Cir. 1988). “Analysis of whether to grant a writ usually begins with the
third Bauman factor of ‘clear error, because the absence of the third factor is
dispositive.’” In re Mersho, 6 F.4th 891, 898 (9th Cir. 2021) (quoting In re Boon
Glob. Ltd., 923 F.3d 643, 649 (9th Cir. 2019)). Although Dr. Ho argues that ordinary
error applies, we have rarely used that standard in mandamus cases and only when the
case raises an “important issue of first impression,” see San Jose Mercury News, Inc.
v. U.S. District Court, 187 F.3d 1096, 1100 (9th Cir. 1999), and this is not such a case,
see United States v. Stites, 56 F.3d 1020, 1025 (9th Cir. 1995) (rejecting argument that
the government was “bluff[ing]” when it expressed an intent to call a co-defendant as
a witness, which would pose a potential conflict, because, “[a]s the case appeared to
the court at the time of the disqualification hearing, [co-defendant] was a probable
witness” (emphasis added)).
4 “The clear error standard is significantly deferential and is not met unless the
reviewing court is left with a ‘definite and firm conviction that a mistake has been
committed.’” Cohen v. U.S. District Court, 586 F.3d 703, 708 (9th Cir. 2009)
(quoting Concrete Pipe & Prods. of Cal., Inc. v. Constr. Laborers Pension Tr. for S.
Cal., 508 U.S. 602, 623 (1993)). If the district court’s decision would be reviewable
under an abuse of discretion standard on direct appeal, the Ninth Circuit’s “review in
mandamus proceedings is ‘especially deferential,’” and the court “look[s] to see if the
district court abused its discretion in a manner so obvious that the error is ‘clear’ to
all.” In re Bundy, 840 F.3d 1034, 1041 (9th Cir. 2016) (citations omitted).
3.
Free access — add to your briefcase to read the full text and ask questions with AI
FILED NOT FOR PUBLICATION JUL 2 2024 UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
MATTHEW HOANG HO, AKA Mat No. 24-1883 Hoang Ho D.C. No. Petitioner, 8:23-cr-00051-JVS
v. MEMORANDUM* UNITED STATES DISTRICT COURT FOR THE CENTRAL DISTRICT OF CALIFORNIA, SANTA ANA,
Respondent,
UNITED STATES OF AMERICA,
Real Party in Interest.
Petition for Writ of Mandamus
Argued and Submitted June 5, 2024 Pasadena, California
Before: M. SMITH and BADE, Circuit Judges, and FITZWATER,** District Judge.
* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. ** The Honorable Sidney A. Fitzwater, United States District Judge for the Northern District of Texas, sitting by designation. Matthew Hoang Ho, M.D. (“Dr. Ho”) petitions for a writ of mandamus
directing the district court to vacate its February 26, 2024 order disqualifying Dr. Ho’s
retained attorneys—Brown White & Osborn LLP (“BWO”)—from representing him
in a criminal case. We have jurisdiction under 28 U.S.C. § 1651(a), and we deny the
petition.
Because the parties are familiar with the facts, we recount them here only to the
extent necessary to provide context for our ruling. Dr. Ho is charged with the
following offenses in connection with the submission of allegedly fraudulent loan
applications for COVID-related relief programs: conspiracy to commit wire fraud, in
violation of 18 U.S.C. § 1349; wire fraud and aiding and abetting wire fraud, in
violation of 18 U.S.C. §§ 1343 and 2(a); and money laundering and aiding and
abetting money laundering, in violation of 18 U.S.C. §§ 1956(a)(1)(B)(i) and 2(a) and
(b). Along with Dr. Ho, the government has also charged Hanna Dinh (“Hanna”) and
her brother, Anthony Dinh (“Anthony”). Hanna has pleaded guilty to conspiracy to
commit wire fraud, and the government has listed her as a witness whom it intends to
call at Dr. Ho’s trial. BWO represented Hanna earlier in this case.
In view of the government’s intent to call Hanna as a trial witness, the district
court disqualified BWO as Dr. Ho’s counsel based on its prior representation of
Hanna. The district court considered the likelihood that a conflict would actually arise
2 from Hanna’s testifying and concluded that there was a “serious potential for
conflict.” The district court reasoned that the government might call her to testify
about her knowledge of Dr. Ho’s activities in the conspiracy, or, at the very least, the
process the coconspirators used for their alleged fraud scheme; that this would create
an unethical situation where BWO would face the choice either of exploiting its prior,
privileged relationship with her or failing to defend Dr. Ho zealously for fear of
misusing confidential information. The district court also found that neither the
conflict of interest waivers that Dr. Ho had signed nor Dr. Ho’s proposed solution of
arranging for substitute counsel to cross-examine Hanna was sufficient to cure BWO’s
ethical dilemma.
Dr. Ho maintains that he is entitled to mandamus relief because the record
shows that the government does not in fact intend to call Hanna as a witness at trial,
and that prosecutors manufactured a conflict of interest so that Dr. Ho’s counsel of
choice would be disqualified, in violation of his Sixth Amendment right to counsel.
1. Mandamus “is a drastic and extraordinary remedy reserved for really
extraordinary causes.” Cheney v. U.S. District Court, 542 U.S. 367, 380 (2004)
(internal quotation marks and citation omitted). Because it is “one of the most potent
weapons in the judicial arsenal,” id. (internal quotation marks and citation omitted),
mandamus will not issue unless the district court’s decision involved a “clear abuse
3 of discretion or usurpation of judicial power,” Bankers Life & Cas. Co. v. Holland,
346 U.S. 379, 383 (1953) (internal quotation marks omitted). If the decision is merely
“erroneous” or even reversible, it will not be corrected by mandamus. See id. at 382.
2. “We determine whether mandamus relief is appropriate in a particular case
by reference to the guidelines set forth in Bauman v. United States Dist[rict] Court,
557 F.2d 650 (9th Cir. 1977).” Christensen v. U.S. District Court, 844 F.2d 694,
696–97 (9th Cir. 1988). “Analysis of whether to grant a writ usually begins with the
third Bauman factor of ‘clear error, because the absence of the third factor is
dispositive.’” In re Mersho, 6 F.4th 891, 898 (9th Cir. 2021) (quoting In re Boon
Glob. Ltd., 923 F.3d 643, 649 (9th Cir. 2019)). Although Dr. Ho argues that ordinary
error applies, we have rarely used that standard in mandamus cases and only when the
case raises an “important issue of first impression,” see San Jose Mercury News, Inc.
v. U.S. District Court, 187 F.3d 1096, 1100 (9th Cir. 1999), and this is not such a case,
see United States v. Stites, 56 F.3d 1020, 1025 (9th Cir. 1995) (rejecting argument that
the government was “bluff[ing]” when it expressed an intent to call a co-defendant as
a witness, which would pose a potential conflict, because, “[a]s the case appeared to
the court at the time of the disqualification hearing, [co-defendant] was a probable
witness” (emphasis added)).
4 “The clear error standard is significantly deferential and is not met unless the
reviewing court is left with a ‘definite and firm conviction that a mistake has been
committed.’” Cohen v. U.S. District Court, 586 F.3d 703, 708 (9th Cir. 2009)
(quoting Concrete Pipe & Prods. of Cal., Inc. v. Constr. Laborers Pension Tr. for S.
Cal., 508 U.S. 602, 623 (1993)). If the district court’s decision would be reviewable
under an abuse of discretion standard on direct appeal, the Ninth Circuit’s “review in
mandamus proceedings is ‘especially deferential,’” and the court “look[s] to see if the
district court abused its discretion in a manner so obvious that the error is ‘clear’ to
all.” In re Bundy, 840 F.3d 1034, 1041 (9th Cir. 2016) (citations omitted).
3. Our analysis begins and ends with the third Bauman factor: the district court
did not clearly err as a matter of law when it disqualified BWO based on a finding of
a “serious potential for conflict” after the government listed Hanna as a witness whom
it intends to call at Dr. Ho’s criminal trial. Dr. Ho and Hanna are co-defendants in the
same alleged criminal conspiracy; the government alleges that they both worked with
Hanna’s brother, Anthony, to submit fraudulent loan applications; and BWO
previously represented Hanna concerning the same or substantially similar alleged
criminal conduct. The district court did not clearly err when it found, based on these
facts, that it is possible that BWO may have knowledge from Hanna that would be
helpful to Dr. Ho, but cannot be used without violating BWO’s duty of loyalty and
5 confidentiality to Hanna, and, if Hanna is called as a witness, that BWO’s
representation of Dr. Ho may “create an unethical situation where BWO would be
faced with the choice of either exploiting its prior, privileged relationship with her or
failing to defend Dr. Ho zealously for fear of misusing confidential information.”
District courts have “substantial” discretion to disqualify counsel “not only in those
rare cases where an actual conflict may be demonstrated before trial, but in the more
common cases where a potential for conflict exists which may or may not burgeon
into an actual conflict as the trial progresses.” Wheat v. United States, 486 U.S. 153,
163 (1988).
Because the district court did not clearly err in disqualifying BWO, we deny the
petition for a writ of mandamus.1
PETITION DENIED.
1 Dr. Ho’s motion to file a document under seal and in camera, Dkt. 7, is granted. The clerk is directed to file volume three of Dr. Ho’s exhibits under seal and in camera.