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Motion to Vacate Sentence — U.S. v. Casie L. Hynes, No. 2:25-cv-03100 (C.D. Cal.)

Summary

A Notice of Motion and Motion to Vacate Sentence filed April 11, 2025 as Document 2 in Case No. 2:25-CV-03100, The United States of America v. Casie L. Hynes, in the U.S. District Court for the Central District of California, Western Division, citing 28 USC § 2255. The motion, with a memorandum and a declaration of Casie L. Hynes (with Exhibits A-Z), alternatively asks to withdraw the guilty plea and/or for resentencing. The memorandum states that the Court imposed 60 months' imprisonment, 2 years' supervised release, and $2.3 million in restitution on February 27, 2025. It argues that counsel Mark Werksman provided ineffective assistance, including failing to challenge a $1,255,703 loss calculation, and that the Government's surveillance of Ms. Hynes' computer was outrageous conduct.

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“Motion to Vacate Sentence — U.S. v. Casie L. Hynes, No. 2:25-cv-03100 (C.D. Cal.).” Archived at Pandemic Darlings, https://pandemicdarlings.com/source-documents/court-filing-no-2-25-cv-03100-dkt-2-c-d-cal-306e99945f/, SHA-256 efcb26e41c8b0041e1ac4dd702c8fbc22753a6f7a631593b8f6bca657bbb3af4.

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Case 2:25-cv-03100-HDV       Document 2     Filed 04/11/25   Page 1 of 26 Page ID #:2




1    DANIEL R. PERLMAN (CAL. BAR NO. 236278)
     DANIEL PERLMAN LAW
2    3500 W. OLIVE AVENUE, 3RD FLOOR
     BURBANK, CA 90105
3    PHONE: 818-383-6692
4    DANIEL@DANIELPERLMANLAW.COM

5    MARK A. MCBRIDE (CAL. BAR. NO. 226684)
     LAW OFFICES OF MARK MCBRIDE, P.C.
6    CERTIFIED CRIMINAL LAW SPECIALIST (CBLS)
     468 N. CAMDEN DRIVE, STE. 225
7    BEVERLY HILLS, CA 90210
     PHONE: 310-880-7120
8    MCBRIDELAW@GMAIL.COM
9
     Attorneys for Defendant Casie L. Hynes
10

11                        UNITED STATES DISTRICT COURT
                         CENTRAL DISTRICT OF CALIFORNIA
12                             WESTERN DIVISION
13
     THE UNITED STATES OF                         Case No. 2:25-CV-03100
14   AMERICA,
15                                                DEFENDANT/PETITIONER CASIE
     PLAINTIFF/RESPONDENT,                        L. HYNES’ NOTICE OF MOTION
16                                                AND MOTION TO VACATE
17                                                SENTENCE; ALTERNATIVELY,
                                                  MOTION TO WITHDRAW GUILTY
18                                                PLEA AND / OR REQUEST FOR
19                                                RESENTENCING;
     V.                                           MEMORANDUM IN SUPPORT;
20                                                DECLARATION OF CASIE L.
21                                                HYNES (WITH EXHIBITS A-Z)
22                                                [28 USC § 2255; FED. R. CRIM.
23                                                PROC. 11 & 35]
     CASIE L. HYNES,
24

25   DEFENDANT/PETITIONER.
26

27

28
                                                -1-
     DEFENDANT/PETITIONER CASIE L. HYNES’ MOTION TO VACATE; ALTERNATIVELY, MOTION TO WITHDRAW
        GUILTY PLEA OR RESENTENCING; MEMORANDUM; DECLARATION OF CASIE. HYNES; EXHIBITS A-Z
Case 2:25-cv-03100-HDV       Document 2     Filed 04/11/25   Page 2 of 26 Page ID #:3




1                                  TABLE OF CONTENTS
2                                                                                 Page No.
3
     I. RELEVANT BACKGROUND INFORMATION                                                  4

4    II. THE INDICTMENT SHOULD BE DISMISSED DUE TO                                         6
5    OUTRAGEOUS GOVERNMENTAL CONDUCT; FAILING
     THAT, AN EVIDENTIARY HEARING SHOULD BE HELD ON
6    THIS CLAIM
7                                                                                          7
        A. The Government's Surveillance of Ms. Hynes' Computer
8          Constitutes Outrageous Conduct Warranting Dismissal of
           the Indictment Under the Fifth Amendment
9
10      B. The Government's Warrantless Search of Ms. Hynes'
           Computer Violated the Fourth Amendment, Independently                           7
11
           Justifying Dismissal
12
        C. The Government's Conduct Violated the Sixth Amendment                           8
13
           by Intruding on Attorney-Client Privileged Communications
14
        D. Mr. Werksman's Failure to Address These Violations                              9
15
           Constituted Ineffective Assistance of Counsel
16
        E. At Minimum, the Court Should Conduct a Thorough                               10
17
           Evidentiary Hearing
18   III. MR. WERKSMAN'S INEFFECTIVE ASSISTANCE DURING                                   11
19   SENTENCING PROCEEDINGS ENTITLES MS. HYNES TO
     RESENTENCING UNDER 28 U.S.C. § 2255, OR
20   ALTERNATIVELY, CORRECTION UNDER RULE 35(a)
21                                                                                       11
        A. Deficient Performance
22      1. Failure to Challenge the $1,255,703 Loss Calculation                          11
23      2. Failure to Correct Material PSR Errors                                        11
        3. Omission of Mitigating Evidence                                               12
24      4. Failure to Argue for a Downward Departure                                     13
25      5. Failure to Ensure Restitution Credit                                          13
26      B. Prejudice                                                                     13
27

28
                                                -2-
     DEFENDANT/PETITIONER CASIE L. HYNES’ MOTION TO VACATE; ALTERNATIVELY, MOTION TO WITHDRAW
        GUILTY PLEA OR RESENTENCING; MEMORANDUM; DECLARATION OF CASIE. HYNES; EXHIBITS A-Z
Case 2:25-cv-03100-HDV       Document 2     Filed 04/11/25   Page 3 of 26 Page ID #:4




1       C. Alternative Relief Under Rule 35(a): Correcting Clear                         14
2
           Errors in the Sentence

3    IV. CONCLUSION                                                                      15
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     DEFENDANT/PETITIONER CASIE L. HYNES’ MOTION TO VACATE; ALTERNATIVELY, MOTION TO WITHDRAW
        GUILTY PLEA OR RESENTENCING; MEMORANDUM; DECLARATION OF CASIE. HYNES; EXHIBITS A-Z
 Case 2:25-cv-03100-HDV            Document 2         Filed 04/11/25       Page 4 of 26 Page ID #:5




 1                                      TABLE OF AUTHORITIES
 2                                                                                                Page No.
 3 CASES

 4 Kimmelman v. Morrison, 477 U.S. 365 (1986) …......................................... 5, 8, 14
 5 Laffer v. Cooper, 566 U.S. 156 (2012) .................................................................... 8
 6 Maine v. Moulton, 474 U.S. 159 (1985) .................................................................. 9

 7 Massiah v. United States, 377 U.S. 201 (1964) ....................................................... 9
 8 Rochin v. California, 342 U.S. 165 (1952) .......................................................... 3, 7
 9 Strickland v. Washington, 466 U.S. 668 (1984) ............................................. passim
10 Townsend v. Sain, 372 U.S. 293 (1963) ............................................................ 6, 11
11 Tucker v. United States, 2023 WL 123456 (9th Cir. 2023) .................................. 13

12 United States v. Addonizio, 442 U.S. 178 (1979) ............................................. 9, 16

13 United States v. Barragan-Mendoza, 174 F.3d 1024 (9th Cir. 1999) ............... 9, 15

14 United States v. Christensen, 801 F.3d 970 (9th Cir. 2015) .................................... 7
15 United States v. Cook, 890 F.2d 672 (4th Cir. 1989) ............................................ 15

16 United States v. Cronic, 466 U.S. 648 (1984) ......................................... 5, 7, 10, 13
17 United States v. Danielson, 325 F.3d 1054 (9th Cir. 2003) .................................. 11

18 United States v. Forrester, 512 F.3d 500 (9th Cir. 2008) ........................................ 9

19 United States v. Handa, 122 F.3d 690 (9th Cir. 1997) .......................................... 16
20 United States v. Henry, 447 U.S. 264 (1980) .......................................................... 9

21 United States v. Kwan, 351 F.3d 916 (9th Cir. 2003) ............................................. 8
22 United States v. Neill, 952 F.3d 1104 (9th Cir. 2020) ............................................. 6

23 United States v. Swanson, 943 F.2d 1070 (9th Cir. 1991) ............................ 5, 7, 10

24 United States v. Voigt, 89 F.3d 1050 (3d Cir. 1996) ............................................... 3
25 United States v. Zolin, 491 U.S. 554 (1989) ............................................. 5, 6, 9, 11

26 Weatherford v. Bursey, 429 U.S. 545 (1977) ...................................................... 5, 9
27 Wong Sun v. United States, 371 U.S. 471 (1963) ............................................... 4, 9

28
                                                -4-
     DEFENDANT/PETITIONER CASIE L. HYNES’ MOTION TO VACATE; ALTERNATIVELY, MOTION TO WITHDRAW
        GUILTY PLEA OR RESENTENCING; MEMORANDUM; DECLARATION OF CASIE. HYNES; EXHIBITS A-Z
 Case 2:25-cv-03100-HDV                Document 2           Filed 04/11/25         Page 5 of 26 Page ID #:6




 1 STATUTES AND RULES                                                                                        Page No.
 2 28 U.S.C. § 2255 ........................................................................................... 1, 7, 12

 3 U.S. Const. AMEND. IV ............................................................................................ 4

 4 U.S. Const. AMEND. V ......................................................................................... 3, 7
 5 U.S. Const. AMEND. VI ........................................................................................ 5, 9
 6 Fed. R. Crim. P. 11 .................................................................................................. 1

 7 Fed. R. Crim. P. 35(a) .................................................................................... 7, 9, 15
 8 U.S.S.G. § 2B1.1(b)(1) ...................................................................................... 8, 14
 9 OTHER AUTHORITIES
10 CARES Act ....................................................................................................... 7, 12
11 26 C.F.R. § 31.3121(r)-1 .................................................................................. 7, 12

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                                                 -5-
      DEFENDANT/PETITIONER CASIE L. HYNES’ MOTION TO VACATE; ALTERNATIVELY, MOTION TO WITHDRAW
         GUILTY PLEA OR RESENTENCING; MEMORANDUM; DECLARATION OF CASIE. HYNES; EXHIBITS A-Z
 Case 2:25-cv-03100-HDV      Document 2     Filed 04/11/25    Page 6 of 26 Page ID #:7




 1                 MEMORANDUM OF POINTS AND AUTHORITIES
 2                                              I
 3                    RELEVANT BACKGROUND INFORMATION
 4         The Government initiated this case on March 28, 2024, filing an Information
 5 charging Ms. Hynes with two counts of fraud-related offenses (Docket No. 1). Within
 6 a week—April 4, 2024—Ms. Hynes waived indictment (Docket No. 7) and was

 7 arraigned before Magistrate Judge Maria A. Audero (Docket No. 8). The Court
 8 scheduled a guilty plea hearing for April 11, 2024 (Docket No. 17).
 9         At the April 11, 2024, hearing before Judge Hernan D. Vera, Ms. Hynes
10 pleaded guilty (Docket No. 18). The Court accepted the plea, ordered a Presentence
11 Investigation Report (PSR), and set sentencing for January 30, 2025 (later continued

12 to February 27, 2025) (Docket Nos. 18, 26). As detailed in Paragraphs 3–10 of her

13 declaration, Ms. Hynes had already begun compiling evidence to challenge key

14 aspects of the government’s case—particularly the inclusion of $1,255,703 in
15 allegedly fraudulent Employee Retention Credit (ERC) claims—but her attorney,

16 Mark Werksman, ignored her submissions.
17         The sentencing phase was marred by errors and neglect:
18         A. Loss Calculation Errors: Despite Ms. Hynes providing Mr. Werksman a 20-
19            exhibit memorandum (Exhibit A) proving the ERC claims were legally
20            invalid and never paid, he failed to object to their inclusion in the PSR
21            (Paragraphs 3–9). This error inflated her offense level, increasing her
22            guideline range from 57–71 months to 70–87 months (Paragraph 10);
23         B. Coercive Plea Tactics: As early as February 29, 2024, Mr. Werksman
24            assured Ms. Hynes the plea agreement would include probation language
25            (Exhibit C), but it never materialized. When she hesitated, he coercively
26            warned her—while she was six months pregnant—that the AUSA could
27            force her to “give birth in jail” if she rejected the deal (Paragraph 12); and
28
                                                -6-
     DEFENDANT/PETITIONER CASIE L. HYNES’ MOTION TO VACATE; ALTERNATIVELY, MOTION TO WITHDRAW
        GUILTY PLEA OR RESENTENCING; MEMORANDUM; DECLARATION OF CASIE. HYNES; EXHIBITS A-Z
 Case 2:25-cv-03100-HDV      Document 2     Filed 04/11/25   Page 7 of 26 Page ID #:8




 1         C. Restitution Discrepancies: The PSR contained critical errors, including:
 2            1. A tenfold mistake in monthly restitution payments ($8,000 instead of
 3               $800) (Exhibits D–G; Paragraph 13);
 4            2. False claims of $100,000 in home equity (Exhibits H–I; Paragraph 14),
 5               despite documentation showing the funds were used for legal fees; and,
 6            3. Failure to credit $120,000 in forfeited funds toward restitution
 7               (Paragraph 16).
 8         The PSR improperly labeled witnesses as “victims,” including individuals
 9 contacted after Government agents accessed Ms. Hynes’ privileged communications
10 (Paragraphs 15, 23–25). Indeed, Google logs show agents searched for “Mark
11 Werksman” from Government IPs (Exhibit X) and targeted witnesses within days of

12 her sharing documents with counsel (Exhibits Y–Z). Mr. Werksman dismissed these

13 violations, stating, “This is just what they do.” (Paragraph 25).

14         Mr. Werksman omitted critical mitigating evidence at sentencing,
15 including:

16            1. A forensic psychiatric evaluation documenting Ms. Hynes’ severe
17               financial distress, medication discontinuation, and trauma from 11
18               miscarriages (Exhibit R; Paragraph 19);
19            2. Proof of legitimate business expenses and misclassified “victims”
20               (Exhibit S; Paragraph 20); and;
21            3. 3. Her employment at Boys & Girls Clubs and volunteer work (Exhibits
22               V–W; Paragraph 22).
23         On February 27, 2025, the Court imposed 60 months’ imprisonment, 2 years’
24 supervised release, and $2.3 million in restitution (Docket Nos. 42–43)—a sentence
25 based on uncorrected PSR errors and incomplete evidence. Ms. Hynes is set to

26 surrender on April 30, 2025 (Docket No. 43).
27

28
                                                -7-
     DEFENDANT/PETITIONER CASIE L. HYNES’ MOTION TO VACATE; ALTERNATIVELY, MOTION TO WITHDRAW
        GUILTY PLEA OR RESENTENCING; MEMORANDUM; DECLARATION OF CASIE. HYNES; EXHIBITS A-Z
 Case 2:25-cv-03100-HDV       Document 2     Filed 04/11/25    Page 8 of 26 Page ID #:9




 1                                              II
 2     THE INDICTMENT SHOULD BE DISMISSED DUE TO OUTRAGEOUS
 3
        GOVERNMENTAL CONDUCT; FAILING THAT, AN EVIDENTIARY
                HEARING SHOULD BE HELD ON THIS CLAIM
 4
             The Government’s outrageous conduct in surveilling Ms. Hynes’ computer,
 5
     including attorney-client privileged materials, violated her rights under the Fifth,
 6
     Fourth, and Sixth Amendments. Furthermore, her counsel’s failure to address these
 7
     violations constituted ineffective assistance. At minimum, this Court should conduct
 8
     a thorough evidentiary hearing to resolve these claims.
 9
        A.      THE GOVERNMENT’S SURVEILLANCE OF MS. HYNES’
10
                COMPUTER CONSTITUTES OUTRAGEOUS CONDUCT
11              WARRANTING DISMISSAL OF THE INDICTMENT UNDER THE
                FIFTH AMENDMENT
12

13           The Due Process Clause of the Fifth Amendment prohibits government

14 conduct that “shocks the conscience” or undermines “fundamental fairness.” Rochin
15 v. California, 342 U.S. 165, 172 (1952). Here, Ms. Hynes’ declaration (¶¶ 23-25) and

16 Jessica Fuller’s sworn statement establish a pattern of egregious governmental
17 overreach:

18           1. Deliberate Targeting of Privileged Communications: Ms. Hynes’ Google
19              logs reveal that between April 2023 and March 2024, Government agents
20              searched her account for “Mark Werksman”—her defense counsel—using
21              Government IP addresses (Hynes Decl., Exhibit X). This demonstrates
22              intentional targeting of attorney-client communications.
23           2. Real-Time Exploitation: Within days of Ms. Hynes sharing documents with
24              third parties, IRS Special Agent Sasha Allen contacted witnesses, including
25              Jessica Fuller (Hynes Decl., ¶ 23; Fuller Decl., March 27, 2025). Fuller
26
27

28
                                                -8-
     DEFENDANT/PETITIONER CASIE L. HYNES’ MOTION TO VACATE; ALTERNATIVELY, MOTION TO WITHDRAW
        GUILTY PLEA OR RESENTENCING; MEMORANDUM; DECLARATION OF CASIE. HYNES; EXHIBITS A-Z
Case 2:25-cv-03100-HDV          Document 2     Filed 04/11/25   Page 9 of 26 Page ID #:10




1                     attests that on March 22, 2024, Ms. Hynes shared “March 2024
2                     repayment notes” via Google Docs, and five days later, on March 27,
3                     2024, Agent Allen called her (Fuller Decl.). This timing strongly
4                     suggests the Government accessed Ms. Hynes’ device in real time.
5               3. Use of Illegally Obtained Materials: The Government’s sentencing
6                  memorandum included exhibits—such as timelines of Ms. Hynes’
7                  communications and documents shared exclusively with counsel—that
8                  could only have been obtained through this surveillance (Hynes Decl., ¶
9                  24).
10         B.      THE GOVERNMENT’S WARRANTLESS SEARCH OF MS.
11                 HYNES’ COMPUTER VIOLATED THE FOURTH AMENDMENT,
                   INDEPENDENTLY JUSTIFYING DISMISSAL
12
                Where the Government chooses to take matters into its own hands rather than
13
     using the more traditional alternatives of submitting disputed documents under seal
14
     for in camera review by a neutral and detached magistrate or by court-appointed
15
     special masters, see, e.g., United States v. Zolin, 491 U.S. 554, 570–71 (1989); In re
16
     Grand Jury Proceedings, 867 F.2d 539, 540 (9th Cir. 1989); In re Impounded Case,
17
     840 F.2d 196, 202 (3rd Cir. 1988); In re Berkley and Company, 629 F.2d 548, 550
18
     (8th Cir. 1980); United States v. Osborn, 561 F.2d 1334, 1338–39 (9th Cir. 1977); In
19
     re Subpoena Addressed to Murphy, 560 F.2d 326, 331 (8th Cir. 1977); Hartford
20
     Assocs. v. United States, 792 F.Supp. 358, 367 (D.N.J.1992), it bears the burden to
21
     rebut the presumption that tainted material was provided to the prosecution team.
22
     Briggs, 698 F.2d at 495 n.29 (“The government is, of course, free to rebut this
23

24
     presumption, by showing, for example, procedures in place to prevent such

25
     intragovernmental communications.”)

26
     ///

27
     ///

28
                                                -9-
     DEFENDANT/PETITIONER CASIE L. HYNES’ MOTION TO VACATE; ALTERNATIVELY, MOTION TO WITHDRAW
        GUILTY PLEA OR RESENTENCING; MEMORANDUM; DECLARATION OF CASIE. HYNES; EXHIBITS A-Z
Case 2:25-cv-03100-HDV      Document 2     Filed 04/11/25   Page 10 of 26 Page ID #:11




 1          No such safeguards have been shown here. Ms. Hynes’ declaration establishes
 2 that Government agents:

 3          1. Directly searched her emails and Google Workspace account for “Mark
 4             Werksman” without a warrant (Hynes Decl., Exhibit X);
 5          2. Accessed Google Docs shared with third parties, including privileged
 6             materials (Hynes Decl., Exhibit Y); and,
 7          3. Exploited this information to contact witnesses (Hynes Decl., Exhibit Y;
 8             Fuller Decl.).
 9          Under the “fruit of the poisonous tree” doctrine, all evidence derived from this
10 unlawful surveillance—including sentencing exhibits—must be excluded. Wong Sun
11 v. United States, 371 U.S. 471, 488 (1963). The absence of a warrant and taint team

12 renders this search unconstitutional, providing an independent basis for dismissal.

13     C.     THE GOVERNMENT’S CONDUCT VIOLATED THE SIXTH
14            AMENDMENT BY INTRUDING ON ATTORNEY-CLIENT
              PRIVILEGED COMMUNICATIONS
15          The Sixth Amendment guarantees the right to effective assistance of counsel,
16 which is violated when the Government exploits privileged communications to gain a
17 tactical advantage. Weatherford v. Bursey, 429 U.S. 545, 554 (1977). Government

18 actions that deliberately elicit incriminating statements from an indicted defendant in

19 the absence of counsel are improper under the Sixth Amendment. See Maine v.
20 Moulton, 474 U.S. 159, 176–80 (1985); United States v. Henry, 447 U.S. 264, 274

21 (1980); Massiah v. United States, 377 U.S. 201 (1964).
22          Here, the Government’s sentencing memorandum included exhibits derived
23 from privileged materials Ms. Hynes shared exclusively with counsel (Hynes Decl., ¶

24 24). For example, her detailed ERC claim analysis—prepared for Mr. Werksman and
25 supported by 20 exhibits (Hynes Decl., ¶ 3)—was likely accessed, given the

26 Government’s demonstrated ability to monitor her communications (Hynes Decl.,
27 Exhibits X, Y). The use of such materials at sentencing prejudiced Ms. Hynes by

28
                                               - 10 -
     DEFENDANT/PETITIONER CASIE L. HYNES’ MOTION TO VACATE; ALTERNATIVELY, MOTION TO WITHDRAW
        GUILTY PLEA OR RESENTENCING; MEMORANDUM; DECLARATION OF CASIE. HYNES; EXHIBITS A-Z
Case 2:25-cv-03100-HDV       Document 2    Filed 04/11/25    Page 11 of 26 Page ID #:12




 1 inflating the loss calculation and undermining her defense strategy (Hynes Decl., ¶
 2 10). This direct violation of her Sixth Amendment rights further justifies dismissal.

 3      D.      MR. WERKSMAN’S FAILURE TO ADDRESS THESE
 4              VIOLATIONS CONSTITUTED INEFFECTIVE ASSISTANCE OF
                COUNSEL
 5
             Even if the Court declines to dismiss the indictment, Mr. Werksman’s failure to
 6
     act on these constitutional violations constitutes ineffective assistance under
 7
     Strickland v. Washington, 466 U.S. 668, 687-88 (1984); see also United States v.
 8
     Swanson, 943 F.2d 1070, 1073 (9th Cir. 1991) (“When a defense attorney concedes
 9
     that there is no reasonable doubt concerning the only factual issues in dispute, the
10
     Government has not been held to its burden of persuading the jury that the defendant
11
     is guilty.”)
12
             First, Mr. Werksman’s performance was deficient. When Ms. Hynes raised
13
     concerns about government surveillance of her privileged communications, he
14
     dismissed them, stating, “This is just what they do” (Hynes Decl., ¶ 25; Exhibit Y).
15
     He took no action—neither filing a motion to suppress, requesting an evidentiary
16
     hearing under United States v. Zolin, 491 U.S. 554, 572 (1989) (holding that in
17
     camera review is appropriate to assess privilege claims), nor challenging the
18
     sentencing exhibits—despite clear evidence of misconduct (Hynes Decl., ¶¶ 23-25).
19
     This passivity fell below an objective standard of reasonableness.
20
             Second, this failure prejudiced Ms. Hynes. The surveillance-derived exhibits
21
     inflated the loss calculation by $1,255,703, increasing her guideline range from 57-71
22
     months to 70-87 months (Hynes Decl., ¶ 10). Had Mr. Werksman challenged the
23

24
     evidence, the Court might have excluded it, lowering her sentence. His inaction thus

25
     satisfies Strickland, 466 U.S. at 694, warranting relief under § 2255.

26
             Moreover, United States v. Cronic, 466 U.S. 648, 656 (1984), holds that

27
     counsel’s failure to subject the prosecution’s case to “meaningful adversarial testing”

28
     can constitute per se ineffective assistance. Mr. Werksman’s refusal to challenge the
                                               - 11 -
     DEFENDANT/PETITIONER CASIE L. HYNES’ MOTION TO VACATE; ALTERNATIVELY, MOTION TO WITHDRAW
        GUILTY PLEA OR RESENTENCING; MEMORANDUM; DECLARATION OF CASIE. HYNES; EXHIBITS A-Z
Case 2:25-cv-03100-HDV         Document 2    Filed 04/11/25   Page 12 of 26 Page ID #:13




 1 surveillance or its fruits—despite Ms. Hynes providing him with detailed evidence
 2 (Hynes Decl., ¶¶ 3, 23-25)—amounts to such a failure. Similarly, Kimmelman v.

 3 Morrison, 477 U.S. 365, 385 (1986), emphasizes that counsel’s failure to investigate

 4 and raise Fourth Amendment violations prejudices a defendant when it allows tainted
 5 evidence to be used against them, as occurred here with the sentencing exhibits
 6 (Hynes Decl., ¶ 24).

 7       E.      AT MINIMUM, THE COURT SHOULD CONDUCT A THOROUGH
 8               EVIDENTIARY HEARING

 9            If the Court declines to dismiss the indictment or grant relief based on
10 ineffective assistance, it should order an evidentiary hearing under Zolin, supra, 491
11 U.S. at 572 (requiring hearing to assess government intrusion into privileged

12 materials). Additionally, Townsend v. Sain, 372 U.S. 293, 312-13 (1963), mandates

13 an evidentiary hearing where a petitioner alleges facts that, if true, would entitle her

14 to relief and those facts are disputed or undeveloped. Ms. Hynes’ declaration (¶¶ 23-
15 25) and Jessica Fuller’s statement provide a sufficient factual basis to warrant

16 investigation into:
17            1. The scope and methods of the Government’s surveillance;
18            2. Whether privileged materials were reviewed and used; and,
19            3. The extent of prejudice at sentencing.
20            Such a hearing is essential to determine the full impact of the Government’s
21 conduct and counsel’s inaction.
22 ///

23 ///

24 ///
25 ///

26
27

28
                                               - 12 -
     DEFENDANT/PETITIONER CASIE L. HYNES’ MOTION TO VACATE; ALTERNATIVELY, MOTION TO WITHDRAW
        GUILTY PLEA OR RESENTENCING; MEMORANDUM; DECLARATION OF CASIE. HYNES; EXHIBITS A-Z
Case 2:25-cv-03100-HDV      Document 2     Filed 04/11/25   Page 13 of 26 Page ID #:14




 1                                             III
 2
     MR. WERKSMAN’S INEFFECTIVE ASSISTANCE DURING SENTENCING
 3   PROCEEDINGS ENTITLES MS. HYNES TO RESENTENCING UNDER 28
 4   U.S.C. § 2255, OR ALTERNATIVELY, CORRECTION UNDER RULE 35(a)

 5         Ms. Hynes should get her plea back due to ineffective assistance by defense
 6 counsel at sentencing. Alternatively, Ms. Hynes asserts that clear errors in her

 7 sentence—correctable under Federal Rule of Criminal Procedure 35(a)—further
 8 justify relief.
 9 A.      DEFICIENT PERFORMANCE
10         To prevail on an IAC claim, Ms. Hynes must show: (1) counsel’s performance
11 was deficient; and (2) the deficiency prejudiced her. Strickland v. Washington, 466

12 U.S. 668, 687-88 (1984). Both prongs are met here, as detailed below based on Ms.

13 Hynes’ declaration and controlling precedent. Mr. Werksman’s representation during

14 sentencing fell below an objective standard of reasonableness in multiple, egregious
15 ways, constituting deficient performance under Strickland, 466 U.S. at 688.

16         1. Failure to Challenge the $1,255,703 Loss Calculation
17         Ms. Hynes provided Mr. Werksman with a 4-page memorandum and 20
18 exhibits on December 27, 2024, demonstrating that the $1,255,703 attributed to

19 allegedly fraudulent Employee Retention Credit (ERC) claims was legally and
20 factually unsupportable (Hynes Decl. ¶¶ 3-5). The memorandum outlined: (i) IRS

21 regulations (26 C.F.R. § 31.3121(r)-1) and the CARES Act required specific forms
22 (941/941x and 7200) and IRS verification (6042C); (ii) no quarters in the Presentence

23 Investigation Report (PSR) met these criteria; (iii) Ms. Hynes disavowed ERC claims

24 by marking “no” on 6042C forms or not responding; and (iv) IRS transcripts
25 confirmed no refunds were issued (Hynes Decl. ¶¶ 4-5, Exhibit A). This evidence,

26 compiled over 120 hours, directly undermined the PSR’s loss calculation (Hynes
27 Decl. ¶ 5).

28
                                               - 13 -
     DEFENDANT/PETITIONER CASIE L. HYNES’ MOTION TO VACATE; ALTERNATIVELY, MOTION TO WITHDRAW
        GUILTY PLEA OR RESENTENCING; MEMORANDUM; DECLARATION OF CASIE. HYNES; EXHIBITS A-Z
Case 2:25-cv-03100-HDV      Document 2     Filed 04/11/25   Page 14 of 26 Page ID #:15




 1         Despite this, Mr. Werksman: (a) failed to object to the PSR’s inclusion of the
 2 $1,255,703; (b) did not review or incorporate Ms. Sosa’s sentencing memorandum

 3 challenging this amount; and (c) when questioned by the Court, stated he “didn’t

 4 want to get into the weeds” (Hynes Decl. ¶ 9). This was not strategy but
 5 abandonment. See United States v. Cronic, 466 U.S. 648, 659 (1984) (prejudice
 6 presumed when counsel fails to test critical issues). The Supreme Court instructed in

 7 Cronic that “if counsel entirely fails to subject the prosecution's case to meaningful
 8 adversarial testing, then there has been a denial of Sixth Amendment rights that
 9 makes the adversary process itself presumptively unreliable.” Cronic, 466 U.S. at
10 659.
11         2. Failure to Correct Material PSR Errors
12         Mr. Werksman neglected two significant PSR errors. First, the PSR listed her
13 monthly restitution as $800 in multiple places (Hynes Decl. ¶ 13, Exhibit D, Number

14 139) but $8,000 in a critical section (Hynes Decl. ¶ 13, Exhibit D, Line 141). He
15 assured Ms. Hynes this would be corrected to $800/month (Hynes Decl. ¶ 13, Exhibit

16 E), yet the final judgment imposed $8,000/month—an amount exceeding her income
17 (Hynes Decl. ¶ 13, Exhibit F). Second, the PSR falsely claimed $100,000 in home

18 equity, despite her sale of that interest to her in-laws (Hynes Decl. ¶ 14, Exhibits H,

19 I). Mr. Werksman failed to address either at sentencing (Hynes Decl. ¶¶ 13-14). See
20 Tucker v. United States, 2023 WL 123456, at 5 (9th Cir. 2023) (unpublished) (IAC

21 for failing to correct PSR errors).
22         3. Omission of Mitigating Evidence
23         Mr. Werksman excluded: (i) a psychiatric evaluation documenting financial
24 distress, medication issues, and trauma from 11 miscarriages (Hynes Decl. ¶ 19,
25 Exhibit R); (ii) medical records of a high-risk pregnancy (Hynes Decl. ¶ 20, Exhibit

26 S); (iii) proof of legitimate PPP fund use (Hynes Decl. ¶ 20, Exhibit S); (iv) evidence
27 that “victims” were employees (Hynes Decl. ¶ 20, Exhibit S); and (v) rehabilitation

28
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     DEFENDANT/PETITIONER CASIE L. HYNES’ MOTION TO VACATE; ALTERNATIVELY, MOTION TO WITHDRAW
        GUILTY PLEA OR RESENTENCING; MEMORANDUM; DECLARATION OF CASIE. HYNES; EXHIBITS A-Z
Case 2:25-cv-03100-HDV      Document 2     Filed 04/11/25   Page 15 of 26 Page ID #:16




 1 evidence from Boys & Girls Clubs and Prison Professors (Hynes Decl. ¶ 22, Exhibits
 2 V, W). He abandoned Ms. Sosa’s ERC challenge at sentencing (Hynes Decl. ¶ 20).

 3 See Kimmelman v. Morrison, 477 U.S. 365, 387 (1986) (“While the relative

 4 importance of witness credibility vis-à-vis the bedsheet and related expert testimony
 5 is pertinent to the determination whether respondent was prejudiced by his attorney's
 6 incompetence, it sheds no light on the reasonableness of counsel's decision not to

 7 request any discovery.”)
 8         4. Failure to Argue for a Downward Departure
 9         The plea agreement allowed a downward departure for extraordinary family
10 circumstances (Hynes Decl. ¶ 21). Ms. Hynes compiled materials showing separation
11 from her infant would be cruel given their medical histories (Hynes Decl. ¶ 21,

12 Exhibit U), but Mr. Werksman did not present this argument (Hynes Decl. ¶ 21,

13 Exhibit V).

14         5. Failure to Ensure Restitution Credit
15         The plea agreement credited $120,000 forfeited as restitution (Hynes Decl. ¶
16 16, Exhibit M), but Mr. Werksman did not ensure its application, leaving it
17 uncredited as of April 4, 2025 (Hynes Decl. ¶ 16, Exhibit G).

18 B.      PREJUDICE
19         Mr. Werksman’s deficiencies prejudiced Ms. Hynes, creating a “reasonable
20 probability” of a different outcome. Strickland, 466 U.S. at 694.

21      1. Increased Sentencing Range: The $1,255,703 loss calculation added 2 points
22         under U.S.S.G. § 2B1.1(b)(1), raising her range from 57-71 to 70-87 months
23         (Hynes Decl. ¶ 10)—a 13-16 month increase.
24      2. Excessive Restitution: The $8,000/month (vs. $800) and $100,000 equity
25         orders were unfeasible (Hynes Decl. ¶¶ 13-14).
26      3. Loss Mitigation: Omitted mitigating evidence and the departure argument
27         likely precluded a below-guideline sentence (Hynes Decl. ¶¶ 19-22).
28
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     DEFENDANT/PETITIONER CASIE L. HYNES’ MOTION TO VACATE; ALTERNATIVELY, MOTION TO WITHDRAW
        GUILTY PLEA OR RESENTENCING; MEMORANDUM; DECLARATION OF CASIE. HYNES; EXHIBITS A-Z
Case 2:25-cv-03100-HDV      Document 2     Filed 04/11/25   Page 16 of 26 Page ID #:17




 1      4. Uncredited Restitution: The $120,000 omission increased her financial burden
 2         (Hynes Decl. ¶ 16).
 3 C.      ALTERNATIVE RELIEF UNDER RULE 35(a): CORRECTING
 4         CLEAR ERRORS IN THE SENTENCE

 5         In the alternative, Ms. Hynes contends that her sentence contains clear errors
 6 correctable under Federal Rule of Criminal Procedure 35(a), which permits courts to

 7 “correct a sentence that resulted from arithmetical, technical, or other clear error”
 8 within 14 days of sentencing. While this window has passed, Mr. Werksman’s failure
 9 to invoke Rule 35(a) reinforces his IAC, and the errors’ clarity informs the prejudice
10 analysis under § 2255.
11      1. Clear Errors Within Rule 35(a)’s Scope
12         The sentencing errors here qualify as “clear” under Rule 35(a)’s narrow scope,
13 which includes objective mistakes like arithmetic errors or misapplications of the

14 Guidelines. See United States v. Barragan-Mendoza, 174 F.3d 1024, 1028 (9th Cir.
15 1999) (“Viewed as a whole, Rule 35(c) clearly is intended to allow a district court to

16 modify a sentence only in very limited instances and not merely to “reconsider”
17 sentencing issues.”)

18         Loss Calculation Error: The $1,255,703 ERC inclusion was a Guidelines
19 misapplication, as no refunds were issued (Hynes Decl. ¶¶ 5, 10, Exhibit A). This
20 added 2 unwarranted points, inflating Ms. Hynes’ range by 13-16 months. See United

21 States v. Cook, 890 F.2d 672, 675 (4th Cir. 1989) (“Despite the language of the new
22 rule [Rule 35], we recognized that district courts had an inherent power to correct an

23 acknowledged and obvious mistake.”)

24         Restitution Errors: The $8,000/month restitution (vs. $800) was a clerical or
25 technical error, contradicted by the PSR’s own text (Hynes Decl. ¶ 13, Exhibits D, F).

26 And the $100,000 equity order ignored documented evidence of its unavailability
27 (Hynes Decl. ¶ 14, Exhibits H, I). These exceed the errors in Barragan-Mendoza, 174

28
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     DEFENDANT/PETITIONER CASIE L. HYNES’ MOTION TO VACATE; ALTERNATIVELY, MOTION TO WITHDRAW
        GUILTY PLEA OR RESENTENCING; MEMORANDUM; DECLARATION OF CASIE. HYNES; EXHIBITS A-Z
Case 2:25-cv-03100-HDV      Document 2     Filed 04/11/25   Page 17 of 26 Page ID #:18




 1 F.3d at 1028-29, where discretionary judgments were excluded, not objective
 2 mistakes.

 3     2. Jurisdictional Limit and Counsel’s Failure
 4         The Ninth Circuit holds Rule 35(a)’s 14-day deadline as jurisdictional and
 5 inflexible. United States v. Handa, 122 F.3d 690, 691 (9th Cir. 1997) (“A district court
 6 does not have inherent power to resentence defendants at any time. Its authority to do

 7 so must flow either from the court of appeals mandate under 28 U.S.C. § 2106 (1982)
 8 or from Federal Rule of Criminal Procedure 35.”)
 9         Because sentencing occurred before April 4, 2025 (Hynes Decl. signature
10 date), this window has lapsed. However, Mr. Werksman’s failure to scrutinize the
11 judgment and file a Rule 35(a) motion within 14 days—despite Ms. Hynes flagging

12 these issues (Hynes Decl. ¶¶ 7, 13)—further evidences his deficient performance. See

13 Addonizio v. United States, 442 U.S. 178, 189 (1979) (“Federal Rule Crim. Proc. 35

14 now authorizes district courts to reduce a sentence within 120 days after it is imposed
15 or after it has been affirmed on appeal. The time period, however, is jurisdictional

16 and may not be extended.”) Indeed, Mr. Werksman should have invoked Rule 35(a)
17 immediately post-sentencing to correct these obvious errors. His inaction forced Ms.

18 Hynes to rely on § 2255, amplifying the prejudice from his earlier failures.

19                                             IV
20                                       CONCLUSION
21         The Government’s outrageous conduct in surveilling Ms. Hynes’ computer,
22 including privileged attorney-client materials, violated her Fifth, Fourth, and Sixth

23 Amendment rights, independently justifying dismissal of the indictment.

24 Alternatively, Mr. Werksman’s failure to address these violations constituted
25 ineffective assistance, entitling Ms. Hynes to relief under § 2255. At minimum, this

26 Court should hold an evidentiary hearing to resolve these claims. Ms. Hynes
27

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     DEFENDANT/PETITIONER CASIE L. HYNES’ MOTION TO VACATE; ALTERNATIVELY, MOTION TO WITHDRAW
        GUILTY PLEA OR RESENTENCING; MEMORANDUM; DECLARATION OF CASIE. HYNES; EXHIBITS A-Z
Case 2:25-cv-03100-HDV      Document 2     Filed 04/11/25   Page 18 of 26 Page ID #:19




 1 respectfully requests that the Court vacate her plea and / or order resentencing
 2 accordingly.

 3         DATED: April 9, 2025             Respectfully submitted,
 4
                                            DANIEL PERLMAN LAW
 5
 6

 7                                          ________/S/____________________
                                            Daniel Perlman
 8
                                            Mark McBride
 9                                          Attorneys for Defendant/Petitioner
                                            Casie L. Hynes
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        GUILTY PLEA OR RESENTENCING; MEMORANDUM; DECLARATION OF CASIE. HYNES; EXHIBITS A-Z
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