USA v. Janzad

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW MEXICO
UNITED STATES OF AMERICA,
Plaintiff,
vs. 	No. CR 23-0346 JB
FAYE JANZAD,
Defendant.
MEMORANDUM OPINION AND ORDER
THIS MATTER comes before the Court on the Defendant’s Opposed Motion for a New
Trial, filed May 1, 2025 (Doc. 126)(“MNT”). The Court holds hearings on June 2, 2025, June 17,
2025, and September 23, 2025. See Clerk’s Minutes at 1, filed June 2, 2025 (Doc. 146); Clerk’s
Minutes at 1, filed June 17, 2025 (Doc. 148); Clerk’s Minutes at 1, filed September 23, 2025 (Doc.
158). The primary issues are: (i) whether Defendant Faye Janzad’s trial counsel’s failure to depose
the victim, T.H., warrants a new trial; (ii) whether trial counsel’s alleged refusal to prepare Janzad
for her testimony warrants a new trial; (iii) whether trial counsel’s alleged failure to conduct an
adequate defense investigation warrants a new trial; (iv) whether trial counsel’s alleged failure to
communicate with the witnesses on Janzad’s witness lists warrants a new trial; (v) whether trial
counsel’s failure to call corroborating witnesses or character witnesses warrants a new trial; (vi)
whether trial counsel’s alleged threat to stop working on the case unless Janzad paid additional
attorney’s fees warrants a new trial; and (vii) whether trial counsel allowing the United States to
introduce evidence involving former VILA board member, Richard Padilla, warrants a new trial.
The Court concludes that: (i) trial counsel’s failure to depose the victim does not warrant a new
trial, because the victim dies unexpectedly; (ii) trial counsel’s alleged refusal to prepare Janzad for
her testimony does not warrant a new trial, because counsel’s decision not to over-craft Janzad’s
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testimony is a reasonable strategic choice and not Constitutionally deficient; (iii) trial counsel’s
alleged failure to conduct an adequate defense investigation does not warrant a new trial, because
trial counsel’s lack of investigation into Janzad’s performance in other fiduciary accounts is a
reasonable decision; (iv) trial counsel’s alleged failure to communicate with the witnesses on
Janzad’s witness list does not warrant a new trial, because trial counsel did communicate with
witnesses on the first witness list and the proposed testimony does not have a reasonable
probability of producing a different result; (v) trial counsel’s failure to call corroborating witnesses
or character witnesses does not warrant a new trial, because it was a reasonable strategic decision
and additional testimony does not have a reasonable probability of producing a different result;
(vi) trial counsel’s alleged threat to stop working on the case unless Janzad pays additional
attorney’s fees does not warrant a new trial, because it does not involve any failure to present
evidence to the jury and does not undermine confidence in the verdict; (vii) trial counsel allegedly
allowing the United States to introduce evidence involving former VILA board member, Richard
Padilla, does not warrant a new trial, because Mr. trial counsel did object to the evidence and its
exclusion does not have a reasonable probability of producing a different result. 	The Court
therefore denies the MNT.
FACTUAL BACKGROUND
To provide context, the Court takes its recitation of facts from the Indictment, filed March
21, 	2023 	(Doc. 	1), 	the 	Presentence 	Investigation 	Report, 	filed 	January 	30, 	2025 	(Doc.
110)(“PSR”), the MNT, the United States’ Response to Opposed Motion for New Trial (Doc.
134)(“Response”), the Emergency Motion to Preserve the Testimony of Thomas Hubsham, filed
July 19, 2023 (Doc. 17)(“Emergency Motion”), the September 23, 2025, Hearing Transcript
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(September 23, 2025, Tr.”)1 , the August 5, 2024, Hearing Transcript, filed February 21, 2025 (Doc.
118)(“August 5, 2024, Tr.”), and the August 2, 2024, Hearing Transcript, filed February 21, 2025
(Doc. 117)(Janzad)(“August 2, 2024, Tr.”). 	The Court finds, based on a preponderance of
evidence, certain facts in these documents as true. Rule 12(d) of the Federal Rules of Criminal
Procedure requires that the Court state its essential findings on the record when deciding a motion
which involves factual issues. See Fed. R. Crim. P. 12(d)(“When factual issues are involved in
deciding a motion, the court must state its essential findings on the record.”). The findings of fact
in this Memorandum Opinion and Order shall serve as the Court’s essential findings for rule 12(d)
purposes.
1. 	Relevant Conduct Regarding the Convicted Offense.
1. 	Faye Janzad owns and directs Veterans Independent Living of Albuquerque
(“VILA”), a nonprofit organization that provides housing and services to veterans at various levels
of care. See Indictment ¶ 1, at 1.
2. 	T.H., now deceased, is a Vietnam veteran who receives disability income after he
suffers from post-traumatic stress disorder, tinnitus, and hearing loss. See PSR ¶ 8, at 4.
3. 	Because the VA deems T.H. one-hundred-percent disabled, the VA pays him
approximately $4,000.00 per month in VA benefits. See PSR ¶ 8, at 4.
4. 	In 2011, T.H. begins living at a VILA housing facility, where he lives until his death
in 2023. See PSR ¶ 8, at 4.
5. 	After T.H.’s former fiduciary dies, Janzad agrees to serve as T.H.’s fiduciary in
2017. See PSR ¶ 9, at 4.
1 The Court’s citations to the transcript of the hearing refer to the court reporter’s original,
unedited version. Any final transcript may contain slightly different page and/or line numbers.
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6. 	On January 8, 2018, Janzad signs a standard VA fiduciary agreement in which she
agrees, among other things, to: (i) receive and manage T.H.’s money for his benefit; (ii) not borrow,
loan, or gift T.H.’s funds; (iii) immediately report any change in income to the fiduciary activity;
(iv) not commingle T.H.’s funds with another person’s funds; and (v) strictly adhere to the fund-
usage agreement, including obtaining prior written approval for any deviation. See PSR ¶ 9, at 4.
7. 	In March 2018, Janzad commits the initial embezzlement -- which forms the factual
basis of Counts 1 and 2 -- when she deposits $163,363.03 of T.H.’s funds into VILA’s general
operating account instead of into T.H.’s designated account. See PSR ¶ 11, at 4.
8. 	In August 2018, the VA begins investigating Janzad after it discovers that the surety
bond protecting T.H.’s funds is issued incorrectly. See PSR ¶ 12, at 4.
9. 	During a series of onsite visits in October and November 2018, VA representatives
request documentation explaining why Janzad has not deposited the $163,363.03 into the
designated account, but Janzad does not provide any such documentation. See PSR ¶ 13, at 5.
10. 	On November 7, 2018, Janzad sends the VA the following email:
When VILA became his fiduciary, VILA received two checks adding up to
$163,363.03 and please see the attached surety bond for 170,000.00 and the two
deposits. This money went into the VILA account. As his power of attorney, at the
time, VILA felt it was best to secure his money via a recorded mortgage at 5%
interest with a monthly payment of $1,291.86. 	After conversing with you
yesterday, I want to make sure that this is approved by your office so that we
continue to provide stellar service that this Veteran has received.
11. 	The November 7, 2018, email forms the factual basis of Count 3, because, when
Janzad sends it, she knows that no recorded mortgage exists and therefore no mortgage payment
exists. See PSR ¶ 14, at 5.
12. 	On November 27, 2018, after the VA determines that Janzad misuses T.H.’s
benefits, the VA appoints Guiding Star as T.H.’s new fiduciary, and directs Janzad to submit a final
accounting and forward T.H.’s funds to Guiding Star; Janzad did neither. See PSR ¶ 13, at 5.
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13. 	Despite the VA’s directive, Janzad works with a law firm to create and record a
document entitled “Second Mortgage,” which purports to be an agreement between VILA, as
second mortgagor, and T.H., as mortgagee. See PSR ¶ 16, at 5.
14. 	Janzad submits a false VA fiduciary accounting statement -- that forms the factual
basis of Count 4 -- that does not acknowledge the $163,363.03 which T.H. possesses when he
enters Janzad’s care and does not disclose that T.H. purportedly holds a mortgage interest in any
property. See PSR ¶ 19, at 6.
15. 	The VA later receives a letter dated January 10, 2019, that T.H. purportedly signs,
in which he protests the VA’s decision to appoint a new fiduciary; a VILA secretary notarizes the
letter and later states that Janzad asks her to notarize it even though she does not witness T.H. sign
it. See PSR ¶ 20, at 6.
16. 	On January 10, 2019, Janzad creates a document entitled “Life Care Contract,”
which states that she deposits T.H.’s $163,363.03 into VILA’s general operating account and
asserts that she uses the funds in accordance with T.H.’s care needs. See PSR ¶ 25, at 7.
17. 	On January 10, 2019, Janzad also creates a document titled “Transcription from
T.H. Understanding Recording, January 2019,” which attempts to ratify the “Second Mortgage”
transaction by asserting that she uses the funds to improve one of VILA’s housing facilities. See
PSR ¶ 26, at 7-8.
18. 	A financial analysis shows that, after Janzad deposits T.H.’s funds into VILA’s
general operating account, she spends the money as follows: (i) approximately $35,000.00 toward
the first mortgage on the property she purportedly mortgages to T.H.; (ii) approximately
$27,000.00 to unknown payees through cashier’s checks; and (iii) the remaining funds on routine
operating expenses, including staff compensation. See PSR ¶ 30, at 9.
2. 	Janzad’s trial counsel, Robert Gorence’s, relevant conduct.
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19. 	Mr. Gorence does not depose T.H. before T.H.’s unexpected death. See MNT at 17;
Response at 5.
20. 	When Mr. Gorence learns that T.H. aspirates on the food that he is eating which
ultimately leads to T.H.’s death, Mr. Gorence files Janzad’s unopposed Emergency Motion. See
Emergency Motion at 1.
21. 	Mr. Gorence reviews Janzad’s testimony and exhibits with her prior to trial
commencing. See September 23, 2025, Tr. at 35:1-4 (Gorence).
22. 	Mr. Gorence spends time preparing Janzad for cross-examination prior to trial
commencing. See September 23, 2025, Tr. at 37:18-20 (Gorence).
23. 	Mr. Gorence determines that Janzad’s strongest available defense is a mens rea
defense focused on T.H. approving the expenditures at issue. See August 5, 2024, Tr. at 1406:3-
19 (Gorence).
24. 	Mr. Gorence contacts at least some of the individuals whom the first witness list
identifies when he goes to VILA’s facilities and speaks with several employees. See September
23, 2025, Tr. at 12:13-24 (Gorence).
25. 	Mr. Gorence does not call corroborating witnesses or character witnesses on
Janzad’s behalf. See MNT at 22.
26. 	The United States had two witnesses prepared to testify in rebuttal if Mr. Gorence
offered character evidence. See Response at 8.
27. 	Mr. Gorence objects to evidence relating to Richard Padilla as rule 404(b) evidence.
See August 2, 2024, Tr. at 1272:1-15 (Gorence).
PROCEDURAL BACKGROUND
A Federal Grand Jury Indicts Janzad for two counts of the fiduciary misappropriation
statute, in violation of 38 U.S.C. § 6101, and two counts of false statements made to government
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investigators, in violation of 18 U.S.C. § 1001. See Indictment at 1. After the United States files
a motion to exclude five categories of evidence, the Court holds a hearing on the motion, where it
becomes clear that the contested evidentiary issues turn on the mens rea requirement in the § 6101
statute. 	See Transcript of March 5, 2024, Hearing, at 11:14-18, filed February 21, 2025 (Doc.
119)(“March 5, 2024, Tr.”). The United States takes the position that the statute be construed as a
strict liability offense. See March 5, 2024, Tr. at 14:7-16 (Peña). Janzad, through her counsel, Mr.
Gorence, argues that § 6101 is not a strict liability offense. 	See March 5, 2024, Tr. at 4:16-23
(Gorence). This dispute between the parties ultimately leads to the Court filing its Memorandum
Opinion and Order at 1, filed July 26, 2024 (Doc. 78)(“Mens Rea MOO”), deciding, among other
things, the appropriate mens rea requirement for § 6101. The Mens Rea MOO rejected the United
States’ strict liability argument and instead holds that the United States “must prove that Janzad
knowingly embezzled, knowingly misappropriated, or that Janzad -- knowing that the manner in
which she did so was unauthorized by law -- used Hubshman’s VA benefits.” Mens Rea MOO at
19. 	There, the Court holds that Ҥ 6101 is not a strict liability offense, and that it is defined
primarily by Janzad’s knowledge of her conduct’s prohibited character.” Mens Rea MOO at 19.
As Mr. Gorence notes in his later testimony -- and the Court agrees -- this is an issue that was
litigated extensively with the United States and ultimately Janzad prevails on the mens rea
requirement. See September 23, 2025, Tr. at 19:1-14. This ruling is also a win for Janzad, because
it allows related statements from T.H. that informs Janzad’s mental state to be introduced at trial.
See September 23, 2025, Tr. at 9:1-14.
On August 5, 2024, a petit jury finds Janzad guilty of Counts I-IV. See Sealed Jury Verdict,
filed August 5, 2024 (Doc. 101). On May 1, 2025, Janzad files her MNT. In the MNT, Janzad
argues that the Court should grant her a new trial, because she is denied her Sixth Amendment
right to effective assistance of counsel. See MNT at 1. Janzad asserts several reasons why she
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does not have effective assistance of counsel. 	See MNT at 1. 	First, Janzad argues that she is
entitled to a new trial, because trial counsel fails to depose the victim, T.H., before his death. See
MNT at 1-2. Second, she argues that she is entitled to a new trial, because trial counsel “refused
to prepare Janzad effectively to testify in her own defense.” MNT at 1. Third, Janzad argues she
is entitled to a new trial, because trial “counsel was derelict in his duty when he conducted in
inadequate defense investigation.” MNT at 1. Fourth, Janzad asserts that she is entitled to a new
trial, because trial counsel “failed to communicate with any of the people whom he disclosed as
potential witnesses for the defense[.]” MNT at 1. Fifth, she argues that she is entitled to a new
trial, because trial counsel “refused to present the testimony of numerous, available witnesses who
could have corroborated Janzad’s testimony, or express their opinion of Janzad’s reputation for
honesty and truthfulness, or impeached the ‘other crimes’ evidence offered by the prosecution.”
MNT at 1-2. Sixth, Janzad argues that she is entitled to a new trial, because of trial counsel’s
repeated threats to stop working on the case, first when he insisted he be paid more
money as the trial approached and then when he refused to work on the case at all
the weekend before jury selection simply because Janzad was running late to a
weekend appointment at his home.
MNT at 2.
On May 9, 2025, the United States files its Response. In response to Janzad’s claim that
she is entitled to a new trial because trial counsel fails to depose T.H., the United States asserts that
trial counsel is not ineffective when he fails to anticipate an “unexpected and sudden” event.
Response at 5. In response to Janzad’s argument that she is entitled to a new trial, because trial
counsel refuses to prepare her for her testimony, the United States argues that trial counsel not
over-crafting Janzad’s testimony is a strategic decision that does not raise a Constitutional
deficiency. See Response at 6. Responding to Janzad’s argument that trial counsel is ineffective
by conducting an inadequate defense investigation, the United States responds that this is not
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Constitutionally deficient, because Janzad does not point to a subject of inquiry that trial counsel
should have further investigated. See Response at 6. In response to Janzad’s assertion that trial
counsel fails to communicate with the witnesses on the defense witness list, the United States
responds that it does not constitute ineffective assistance of counsel, because Janzad “presents no
evidence in support of the accusation.” Response at 7. In response to Janzad’s argument that trial
counsel is ineffective for failing to call corroborating and character witnesses, the United States
asserts that any corroborating testimony “would not have helped because she admitted the facts
that made her guilty.” 	Response at 7. 	In response to Janzad’s assertion that trial counsel is
ineffective, because he threatens to stop working on the case and demands additional attorneys
fees, the United States asserts that these actions do not constitute ineffective assistance of counsel,
because the “conduct does not involve any failure to present facts to the jury and it does not
undermine confidence in the verdict.” Response at 8.
On May 30, 2025, Janzad files Reply to the Response to a Motion for a New Trial (Doc.
138)(“Reply”). 	The Reply first focuses on the fact that Janzad pays $120,000.00 to her trial
counsel, but allegedly receives very little in return: “But in one respect, the United States is most
assuredly wrong, never before has someone ‘charged more for less.’ Janzad contends that, in truth,
no lawyer practicing before this Honorable Court or in this beloved District has ever done less than
Janzad’s after charging so much.” Reply at 1. Further, Janzad reasserts that witnesses should have
been called to corroborate Janzad’s testimony, “or to provide any context or sympathy for her
testimony.” Reply at 2. Finally, Janzad argues that she is entitled to a new trial, because, at the
closing, “trial counsel seemingly conceded every element of the offenses charged in Counts One
and Two.” Reply at 2.
LAW REGARDING MOTIONS FOR A NEW TRIAL
Rule 33 of the Federal Rules of Criminal Procedure provides:
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(a) 	Defendant’s Motion. Upon the defendant’s motion, the court may vacate
any judgment and grant a new trial if the interest of justice so requires. If
the case was tried without a jury, the court may take additional testimony
and enter a new judgment.
(b) 	Time to File.
(1) 	Newly Discovered Evidence. 	Any motion for a new trial
grounded on newly discovered evidence must be filed within
3 years after the verdict or finding of guilty. If an appeal is
pending, the court may not grant a motion for a new trial
until the appellate court remands the case.
(2) 	Other Grounds. 	Any motion for a new trial grounded on
any reason other than newly discovered evidence must be
filed within 14 days after the verdict or finding of guilty.
Fed. R. Crim. P. 33 (bold in original). Under rule 33, the district court has discretion to grant a
new trial if the interests of justice require one. See Fed. R. Crim. P. 33(a). See also United States
v. Quintanilla, 193 F.3d 1139, 1146 (10th Cir. 1999)(“Quintanilla”). “A motion for a new trial is
not regarded with favor and should only be granted with great caution.” Sinclair, 109 F.3d at 1531
(citing United States v. Chatman, 994 F.2d 1510, 1518 (10th Cir. 1997)). “‘[A] defendant may
not invoke rule 33 when he or she has pled guilty.’” 	United States v. Christy, 883 F. Supp. 2d
1040, 1047 (D.N.M. 2012)(Browning, J.)(quoting United States v. Lambert, 603 F.3d 808, 809
(10th Cir. 1979)).
“The Tenth Circuit has further stated that when ‘deciding a motion for new trial, the [trial]
court may weigh the evidence and consider the credibility of witnesses in determining whether the
verdict is contrary to the weight of the evidence such that a miscarriage of justice may have
occurred.’” United States v. Thomas, No. CR 13-1874 MV, 2016 WL 9819560, at *8 (D.N.M.
August 5, 2016)(Vázquez, J.)(quoting United States v. Evans, 42 F.3d 586, 593 (10th Cir. 1994)).
“‘The power to grant a new trial on the ground that the verdict is against the weight of the evidence
should be invoked only in exceptional cases in which the evidence preponderates heavily against
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the verdict.’” United States v. Guzman-Martinez, No. CR 03-2118 RB, 2004 WL 7338099, at *1
(D.N.M. March 10, 2004)(Brack, J.)(quoting United States v. Mounkes, 204 F.3d 1024, 1027 (10th
Cir. 2000)).
The Court previously has addressed motions for new trials under rule 33 in various cases.
See, e.g., United States v. Kearney, No. CR 19-2848 JB, 2023 WL 5176276, at *23-31 (D.N.M.
Aug. 11, 2023)(denying a motion for a new trial where, despite the defendant’s complaints, the
Court properly instructs the jury, appropriately excuses an intimidated juror, and does not excuse
a juror who had prior business dealings with one of the defendant’s business associates); United
States v. Folse, No. CR 15-2485 JB, 2018 WL 6047415, at *20-22 (D.N.M. Nov. 19,
2018)(Browning, J.)(denying a motion for a new trial and a request for additional discovery where
the defendant does not produce evidence that, with additional discovery, he could show that the
United States destroyed evidence and, despite having earlier had notice that alleged deficiencies
might exist in the United States’ evidence, he did not seek evidence of such information); United
States 	v. 	Neha, 	No. 	CR 	04-1677 	JB, 	2006 	WL 	4062889, 	at 	*2-4 	(D.N.M. 	June 	26,
2006)(Browning, J.)(denying a new trial motion where the defendant complains of the United
States’ brief references to his criminal history and of the United States’ comment to the jury that
the Court altered a co-conspirator’s statement, and where the weight of the evidence supports the
verdict).
Rule 33 permits a defendant to move for a new trial in the event of newly discovered
evidence if the defendant presents that motion within three years of the verdict of guilt. 	See
Fed. R. Crim. P. 33(b)(1). 	Ordinarily, a defendant seeking a new trial under rule 33(b)(1) must
satisfy a five-part test for newly discovered evidence that the Tenth Circuit outlines in Sinclair.
See 109 F.3d at 1531. The defendant must show that:
(1) the evidence was discovered after trial; (2) the failure to learn of the evidence
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was not caused by his own lack of diligence; (3) the new evidence is not merely
impeaching; (4) the new evidence is material to the principal issues involved; and
(5) the new evidence is of such a nature that in a new trial it would probably produce
an acquittal.
Sinclair, 109 F.3d at 1531 (quoting United States v. Stevens, 978 F.2d 565, 570 (10th Cir. 1992).
See Quintanilla, 193 F.3d at 1147 (discussing Sinclair’s rule 33 test). See also United States v.
Velarde, 	No. 	CR 	98-0391 	JB, 	2008 	WL 	5993210, 	at 	*31-44 	(D.N.M. 	May 	16,
2008)(Browning, J.)(permitting a new trial in a sexual assault case where, after the trial, the
defendant uncovered evidence that the alleged victim had accused other individuals of sexual
assault). “Under Sinclair, a court cannot grant a new trial on the discovery of new impeachment
evidence.” 	United States v. Rodella, No. CR 14-2783 JB, 2015 WL 711931, at *33 (D.N.M.
February 2, 2015)(Browning, J.)(citing Sinclair, 109 F.3d at 1531).
LAW REGARDING INEFFECTIVE ASSISTANCE OF COUNSEL
The Supreme Court has long recognized that “the right to counsel is the right to effective
assistance of counsel.” Strickland v. Washington, 466 U.S. 668, 686 (1984). “The benchmark for
judging any claim of ineffectiveness must be whether counsel's conduct so undermined the proper
functioning of the adversarial process that [it] cannot be relied upon as having produced a just
result.” 	Strickland v. Washington, 466 U.S. at 686. 	A defendant can pursue an ineffective
assistance of counsel claim by asserting that the process was not adversarial because of affirmative
state interference or a conflict of interest, or by arguing that his or her attorney was so inadequate
that he or she was effectively denied the benefit of full adversarial testing. 	See Osborn v.
Shillinger, 861 F.2d 612, 626 (10th Cir.1988).
With respect to ineffective assistance arising from inadequate lawyering, Strickland v.
Washington provides the applicable two-part test:
First, the defendant must show that counsel's performance was deficient. This
requires a showing that counsel made errors so serious that counsel was not
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functioning as the “counsel” guaranteed the defendant by the Sixth Amendment.
Second, the defendant must show that the deficient performance prejudiced the
defense. This requires showing that counsel's errors were so serious as to deprive
the defendant of a fair [proceeding]. . . .
Strickland v. Washington, 466 U.S. at 687. See United States v. Kennedy, 225 F.3d 1187, 1197
(10th Cir.2000). The appropriate standard for attorney performance is that of reasonably effective
assistance -- the defendant must demonstrate that counsel's representation, considering all the
circumstances, fell below an objective standard of reasonableness based on prevailing professional
norms. 	See Strickland v. Washington, 466 U.S. at 687-88. 	In evaluating an attorney's
performance, the court must be highly deferential:
A fair assessment of attorney performance requires that every effort be made to
eliminate the distorting effects of hindsight, to reconstruct the circumstances of
counsel's 	challenged 	conduct, 	and 	to 	evaluate 	the 	conduct 	from 	counsel's
perspective at the time. Because of the difficulties inherent in making the
evaluation, a court must indulge a strong presumption that counsel's conduct falls
within the wide range of reasonable professional assistance; that is, the defendant
must overcome the presumption that, under the circumstances, the challenged
action might be considered sound trial strategy.
. . . .
[C]ounsel has a duty to make reasonable investigations or to make a reasonable
decision that makes particular investigations unnecessary. In any ineffectiveness
case, a particular decision not to investigate must be directly assessed for
reasonableness in all the circumstances, applying a heavy measure of deference to
counsel's judgments.
The reasonableness of counsel's actions may be determined or substantially
influenced by the defendant's own statements or actions. Counsel's actions are
usually based, quite properly, on informed strategic choices made by the defendant
and on information supplied by the defendant.
Strickland v. Washington, 466 U.S. at 689-91. See United States v. Kennedy, 225 F.3d at 1197
(“There is a strong presumption that counsel provided effective assistance, and a . . . defendant has
the burden of proof to overcome that presumption.”)(quoting United States v. Williams, 948 F.
Supp. 956, 960 (D.Kan.1996)).
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A defendant asserting ineffective assistance because of deficiency in attorney performance
also must prove prejudice affirmatively. See Strickland v. Washington, 466 U.S. at 693; United
States v. Kennedy, 225 F.3d at 1197. 	“The defendant must show that there is a reasonable
probability that, but for counsel's unprofessional errors, the result of the proceeding would have
been different. A reasonable probability is a probability sufficient to undermine confidence in the
outcome.” Strickland v. Washington, 466 U.S. at 694.
ANALYSIS
The Court denies Janzad’s MNT. First, Janzad’s trial counsel, Robert Gorence, failing to
depose the victim, T.H., does not warrant a new trial, because T.H. died unexpectedly. Second,
Mr. Gorence allegedly failing to prepare Janzad for her testimony does not warrant a new trial,
because Mr. Gorence’s decision not to over-craft Janzad’s testimony is a reasonable strategic
choice and not Constitutionally deficient. 	Third, Mr. Gorence allegedly failing to conduct an
adequate defense investigation does not warrant a new trial, because trial counsel’s lack of
investigation into Janzad’s performance in other fiduciary accounts is a reasonable decision.
Fourth, Mr. Gorence allegedly failing to communicate with the witnesses on Janzad’s witness list
does not warrant a new trial, because Mr. Gorence did communicate with witnesses on the first
witness list and the proposed testimony does not have a reasonable probability of producing a
different result. 	Fifth, Mr. Gorence choosing to not call corroborating witnesses or character
witnesses does not warrant a new trial, because it was a reasonable strategic decision, and
additional testimony does not have a reasonable probability of producing a different result. Sixth,
Mr. Gorence’s alleged threat to stop working on the case unless Janzad pays additional attorney’s
fees does not warrant a new trial, because it does not involve any failure to present evidence to the
jury and does not undermine confidence in the verdict. Seventh, Mr. Gorence allegedly allowing
the United States to introduce evidence involving former VILA board member, Richard Padilla,
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does not warrant a new trial, because Mr. Gorence did object to the evidence and its exclusion
does not have a reasonable probability of producing a different result.
I. 	THAT 	MR. 	GORENCE 	FAILS 	TO 	DEPOSE 	VICTIM, 	T.H., 	DOES 	NOT
WARRANT A NEW TRIAL.
Janzad first argues that a new trial is warranted, because Mr. Gorence fails to depose T.H.
prior to T.H.’s death. See MNT at 16. According to Janzad, “at the time the Grand Jury returned
its Indictment, [T.H.] was still alive and could have provided a videotaped deposition regarding
his expressed wishes that VILA use his lump sum payment to secure himself a permanent place
with VILA[.]” MNT at 16. Janzad asserts that a pre-trial deposition “could have shown the jury
the level of [T.H’s] competence and could have allowed him to explain how, following his decision
to commit his lumpsum payment to VILA in March 2018, he was able to heal from decades of
dysfunction.” 	MNT at 16. 	The United States responds that Mr. Gorence does not qualify as
ineffective counsel for failing to depose a victim who dies unexpectedly. See Response at 5. The
Court agrees with the United States that Mr. Gorence is not ineffective for failing to depose the
victim before his unexpected passing.
A court tasked with deciding an ineffective assistance of counsel claim must determine
whether the counsel’s conduct “so undermined the proper functioning of the adversarial process
that the trial cannot be relied on as having produced a just result.” United States v. Jones, 852 F.2d
1275, 1276 (10th Cir. 1988)(“Jones”)(citing Strickland, 466 U.S. at 688). The proper standard for
assessing attorney performance is that of reasonably effective assistance under prevailing norms.
See Jones, 852 F.2d at 1276. The Strickland Court cautions, however, that “judicial scrutiny of
counsel’s performance must be highly deferential, and that every effort be made to eliminate the
distorting effects of hindsight.” Jones, 852 F.2d at 1277 (citing Strickland, 466 U.S. at 689). First,
a defendant must first overcome the “strong presumption that counsel’s conduct falls within the
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wide range of reasonable professional assistance.” Jones, 852 F.2d at 1277. Second, the defendant
“must show that counsel’s performance prejudiced the defense.” Jones, 852 F.2d at 1277. This
standard requires the defendant to show that “counsel’s errors were so serious as to deprive him of
a fair trial; a trial whose result is reliable.” Jones, 852 F.2d at 1277.
The Court first must determine whether Mr. Gorence’s failure to depose T.H. before
T.H.’s death is reasonable conduct. 	See Jones, 852 F.2d at 1277. 	The Court holds that Mr.
Gorence’s conduct is reasonable conduct. 	Janzad admits that T.H.’s death is “unexpected and
sudden.” MNT at 17. Mr. Gorence is not ineffective for failing to anticipate an unexpected and
sudden death. Moreover, when Mr. Gorence learns that T.H. aspirates on food that he is eating,
which ultimately leads to him being transported to the University of New Mexico Hospital, Mr.
Gorence files Janzad’s Unopposed Emergency Motion to Preserve the Testimony of Thomas
Hubshman, filed July 19, 2023 (Doc. 17). This motion demonstrates that, once Mr. Gorence learns
of T.H.’s sudden declining health, he takes steps to preserve T.H.’s testimony by asking the Court
to conduct a deposition. Ultimately, T.H. dies before Mr. Gorence can conduct that deposition.
Janzad therefore does not overcome the strong presumption that Mr. Gorence’s conduct falls
within the wide range of reasonable professional assistance. See Jones, 852 F.2d at 1277.
In addition to Janzad’s inability to show that Mr. Gorence’s conduct falls outside the range
of reasonable professional assistance, Janzad also is unable to show that Mr. Gorence’s
performance prejudiced her. See Jones, 852 F.2d at 1277. Counsel’s error, even if professionally
unreasonable, “does not warrant setting aside the judgment of a criminal trial if the error had no
effect on the judgment.” Jones, 852 F.2d at 1277. Thus, a defendant must show that there is a
reasonable probability that, but for the counsel’s errors, the result of the proceeding would have
been different. Jones, 852 F.2d at 1277. “A reasonable probability is a probability sufficient to
undermine confidence in the outcome.” Jones, 852 F.2d at 1277. Janzad does not meet her burden
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of showing that the decision which the jury reaches had a reasonable probability of being different
if Mr. Gorence had preserved T.H.’s testimony via deposition.
Janzad argues that, if Mr. Gorence deposes T.H. before T.H.’s death, the jury could have
heard T.H. express his wishes that VILA use his lump sum payment to secure himself a permanent
place with VILA until the end of his life while supporting his fellow veterans whom he felt he had
failed in Vietnam. See MNT at 16. Further, Janzad contends that T.H.’s testimony could show
the jury T.H.’s competence and could have allowed him to explain how, following his decision to
commit his lump sum payment to VILA, he was able mentally to heal. See NMT at 16. Janzad,
however, offers no explanation how T.H.’s testimony leads to a reasonable probability that the
proceeding’s result would have been different. In fact, even if T.H.’s deposition was played for
the jury, in a pretrial Memorandum Opinion and Order, filed July 26, 2024 (Doc 78)(“Motion in
Limine MOO”), the Court excludes “any evidence or argument that, because Janzad commingled
in accordance with [T.H.’s] express wishes, her conduct therefore is not so bad or that the
underlying regulatory violation is a mere technicality.” Motion in Limine MOO at 62. Instead,
T.H.’s expressed wishes are admissible to the extent that the evidence is related to Janzad’s state
of mind at the time. See Motion in Limine MOO at 65. At trial, Janzad testifies to T.H.’s expressed
wishes as they are relevant to her state of mind during the crime. See Response at 5; August 2,
2024, Tr. at 1237:10-12. Janzad therefore presents at trial the relevant evidence regarding T.H.’s
wishes and having T.H.’s cumulative deposition testimony would not lead to a reasonable
probability that the trial’s result would be different. The Court therefore denies the MNT insofar
as it relies on Mr. Gorence failing to depose T.H. before his unexpected death.
II. 	THAT MR. GORENCE ALLEGEDLY FAILS TO PREPARE JANZAD FOR HER
DIRECT EXAMINATION DOES NOT WARRANT A NEW TRIAL.
Janzad next argues that Mr. Gorence makes only a cursory effort to prepare her for her
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direct testimony. See MNT at 20. According to Janzad, Mr. Gorence never provides Janzad with
the questions he proposes to ask her on direct examination and never prepares her to confront
cross-examination. See MNT at 20. Janzad, who claims that she is a deeply spiritual individual
whom is often misunderstood, argues that she is “profoundly unprepared to testify in her own
defense.” MNT at 20. The United States responds that Mr. Gorence’s preparation with Janzad
does not warrant a new trial, because Mr. Gorence avoids over-crafting Janzad’s testimony,
reasoning that an over-prepared witness appears less credible to a jury. See Response at 6. The
Court agrees with the United States that Mr. Gorence’s decision not to over-craft Janzad’s
testimony is a reasonable strategic choice and not Constitutionally deficient.
Turning first to whether Mr. Gorence’s direct examination preparation with Janzad is
reasonable conduct. See Jones, 852 F.2d at 1277. The Court holds that Mr. Gorence’s conduct is
reasonable, because he makes informed strategic decisions while prepping Janzad for her
testimony. 	For starters, Mr. Gorence states that he extensively reviews Janzad’s testimony and
exhibits with her. See September 23, 2025, Tr. at 35:1-4 (Gorence). Mr. Gorence also testifies
that he spends significant time preparing Janzad for cross-examination. See September 23, 2025,
Tr. at 37:18-20 (Gorence). 	Mr. Gorence admits that, during preparation, he did not over craft
Janzad’s testimony by doing things such as telling her to look at the jury, but in his professional
opinion, he does not give that advice to clients because it looks unnatural to the jury. 	See
September 23, 2025, Tr. at 39:11-19 (Gorence). 	These sorts of professional decisions do not
qualify as ineffective assistance of counsel, because informed strategic decisions by trial counsel
are not considered Constitutionally unreasonable. 	Strickland, 466 U.S. at 691. 	Janzad’s
statements that Mr. Gorence does not adequately prepare her, without more, does not overcome
the “strong presumption that counsel’s conduct falls within the wide range of reasonable
professional assistance.” Strickland, 466 U.S. at 669. Thus, Mr. Gorence’s preparation of Janzad’s
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testimony qualifies as reasonable conduct.
In addition to Janzad’s inability to show that Mr. Gorence’s conduct falls outside the range
of reasonable professional assistance, Janzad is also unable to show that Mr. Gorence’s
performance prejudices her. 	See Jones, 852 F.2d at 1277. 	To the extent that Janzad’s direct
testimony is unusual, that oddity is because Janzad’s personality and worldview are unusual.
Different trial counsel would not have made a difference. 	Viewing an exchange between Mr.
Gorence and Janzad at trial makes the Court’s point:
Gorence: 	Okay. 	And my point is given that -- given what you were
directed to do, is there anything false on that November 7
email?
Janzad: 	This was already in work. I mean, if it was -- you know, this
is how God gives you a message, you’re on the wrong path.
The number of mistakes was astronomical. 	You hand a
document to a paralegal, and you say: Here is a sample
mortgage I want you to follow. 	My handwriting is there.
Change it to 163, da, da, da, da. She puts it on Don Felipe.
So you guys charge $500 to do these note and mortgages,
but you don’t do a title search? This is a first grader. You
would have found out that VILA doesn’t even own Don
Felipe. VILA was the owner of 1709 Georgia Street. And I
thought, whoever sees this in the future, they’re going to say:
what a crazy gal. She already gave a life care for 163; she
already moved nine veterans that they only have 14, 1500,
so she already saved the government another 163, and she
even put the second mortgage on top of it. 	It would have
been irrelevant, because the interest would have gone
through another veteran.
Gorence: 	I know.
Janzad: 	They’re all together. 	These are all together. 	I want just
trying to be on the over the top, you know. 	And it’s like,
when all of these things comes at you, you just sit back and
say: God, what is the message? Who would ever charge --
and we’ve already paid that money -- so I thought, well, go
ahead, finish. And then you put the wrong property, and you
just say: How is it it’s the wrong property? How do you do
a note and mortgage without title binders?
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Gorence: 	Now you’re rambling.
Janzad: 	Sorry, sorry.
August 2, 2024, Tr. at 1131:16-1133:2 (Gorence, Janzad). 	Janzad’s unwillingness to answer
simple questions extends to the Court’s questioning at the December 12, 2025, hearing:
Court: 	But if you knew he wasn’t your attorney and wasn’t the right
person to be your attorney, why did you allow him to work
for half a year?
Janzad: 	Well, because I have sir many homeless Veterans that they
come directly from the VA Hospital. Surgery[wise] talking
about six or seven of them that they haven’t been able to pay
[any].
Court: 	Okay, but.
Janzad: 	[I am] very busy.
Court: 	Focus on the Court’s questions. . . .
Hearing Tr. at 17:2-12 (Court, Janzad)(“December 12, 2025, Tr.”).2 Based on Janzad’s consistent
commitment to not answering questions, the Court cannot say that, if Mr. Gorence prepares her
even more for her direct and cross-examination testimony, there would be a reasonable probability
that the result of the trial would have been different. 	See Jones, 852 F.2d at 1277. 	The Court
therefore denies the MNT insofar as it relies on Janzad’s argument that Mr. Gorence does not
adequately prepare her for her testimony.
When the Court saw Janzad’s argument that Mr. Gorence did not prepare her at all for her
trial testimony, the Court thought that Mr. Gorence might testify that it would not do any good to
work with Janzad, because you cannot control her. Mr. Gorence surprised the Court, however, by
not saying anything disparaging about Janzad. Indeed, he thought her direct examination is good.
2 The Court’s citations to the transcript of the hearing refer to the court reporter’s original,
unedited version. Any final transcript may contain slightly different page and/or line numbers.
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See September 23, 2025, Tr. at 37:16-17 (Gorence). Mr. Gorence observed that the United States
did a great job on cross-examination. See September 23, 2025, Tr. at 37:18-20 (Gorence). Thus,
while a different lawyer can spend time preparing for direct, cross is often just as horrendous for
any defendant, regardless how well prepared. 	Even if Mr. Gorence wishes to be generous to
Janzad, the Court was at the trial and heard her testify itself. Mr. Gorence, a very seasoned trial
lawyer, could not control her. 	The Court doubts that anyone could control her, and the United
States did as good of job controlling her on cross, as could be expected. The Court will go to its
grave remembering vividly Janzad’s testimony. Particularly on direct, because she could not be
controlled by a very experienced counsel. 	The Court doubts that further preparation of her
testimony would have been helpful, as she was bound to tell her story.
The one thought that the Court has is whether Janzad should have testified at all. 	Mr.
Gorence states that having Janzad testify is a very important part of her defense, because her mens
rea defense centered on the fact that she did not use T.H.’s money personally; in his opinion, that
could not have come out unless she testified. See September 23, 2025, Tr. at 35:21-25 (Gorence).
In any case, even if Mr. Gorence suggested that she not testify because she is such a bad witness,
the Court states with some confidence that Janzad insists on testifying, because she wants to tell
her story in her own words. The Court doubts that anything or anyone would keep Janzad from
telling her story in her own words and in her own colorful style.
The one good thing about Janzad’s method of testifying is that she got to tell her story as
she wanted to tell it. She cannot say that Mr. Gorence did not let her tell her story. Janzad was
not to be denied, regardless of what her attorney, the Court, or anyone else thought. 	Janzad’s
attempt to throw Mr. Gorence under the bus now for her testimony is not convincing.
III. 	THAT MR. GORENCE ALLEGEDLY FAILS TO CONDUCT AN ADEQUATE
DEFENSE 	INVESTIGATION 	INTO 	JANZAD’S 	PAST 	FIDUCIARY
PERFORMANCE DOES NOT WARRANT A NEW TRIAL.
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Janzad contends that, after she retains Mr. Gorence as counsel, Mr. Gorence fails to pursue
an adequate investigation to demonstrate that Janzad is not guilty. See MNT at 17. Specifically,
Janzad argues that Mr. Gorence fails to investigate Janzad’s performance within the six other
fiduciary accounts which VILA manages in which Janzad serves as fiduciary. 	See MNT at 17.
According to Janzad, evidence that she performs appropriately in those other accounts undercuts
the United States’ theory that her conduct here reflects systemic or calculated misconduct. 	See
MNT at 17. 	She reasons that, if she possesses fraudulent intent, “her evil motive would have
certainly manifested in the other cases where she acted as fiduciary -- not just one.” MNT at 17.
The United States counters that Janzad does not “point to even a subject area of inquiry that trial
counsel could or should have investigated.” MNT at 17. Although the Court disagrees with the
United States to the extent Janzad has identified a discrete category of potential investigation --
her handling of other fiduciary accounts -- a new trial is nevertheless unwarranted. 	Under the
governing standard, Mr. Gorence’s decision not to pursue that line of inquiry is reasonable and,
indeed, wise.
Under Strickland, counsel has a duty “to make reasonable investigations or to make a
reasonable decision that makes particular investigations unnecessary.” 	Strickland, 466 U.S. at
691. “In any ineffectiveness case, a particular decision not to investigate must be directly assessed
for reasonableness in all the circumstances, applying a heavy measure of deference to counsel’s
judgments.” Strickland, 466 U.S. at 691. The question is not whether another lawyer might have
investigated further; it is whether Mr. Gorence’s strategic judgment falls within the wide range of
professionally competent assistance.
Here, the record reflects a coherent and rational strategic choice. Mr. Gorence concludes
that Janzad does not effectively dispute that she violates the fiduciary agreement’s technical terms.
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See September 23, 2025, Tr. at 19:1-14 (Gorence). 	He is correct in his assessment. 	The only
viable defense, in his view, is mens rea -- whether she acts with the intent that 38 U.S.C. § 6101
requires. See September 23, 2025, Tr. at 19:1-14 (Gorence).3 After consulting with multiple VILA
employees, including accounting personnel, Mr. Gorence determines that the strongest available
theory is that T.H. requests or approves the expenditures at issue. 	See August 5, 2024, Tr. at
1406:3-19 (Gorence). In other words, the defense centers on Janzad’s state of mind in this specific
fiduciary relationship and not on her performance in unrelated accounts.
That decision is neither irrational nor professionally deficient. Evidence about six separate
fiduciary relationships requires additional witnesses, documentary evidence, and trial time -- all to
prove that Janzad did not misuse funds in those instances. 	The Court already indicated that it
would not allow the T.H. evidence to show that she did not defraud T.H., but only to show her
state of mind. The Court would not have allowed to prove that she did not defraud others to prove
that she did not defraud T.H. See Fed. R. Civ. P. 404(b). Proof that Janzad complies with the law
in other contexts does not logically negate that she acts with criminal intent here. The inference
Janzad proposes -- that the absence of misconduct elsewhere disproves intent in this case -- is weak
and speculative. Indeed, Janzad’s theory rests on a flawed syllogism: because she does not commit
similar violations in other fiduciary accounts, she therefore does not have act with fraudulent intent
in this one. A defendant charged with embezzlement cannot defend by showing she handled other
accounts properly. A defendant charged with murder cannot claim innocence because he did not
3 As the Court explains in the Procedural Background, preserving the availability of a mens
rea defense was a significant strategic victory for Janzad. Mr. Gorence testified -- and the Court
agrees -- that this issue was heavily litigated by both parties and that he ultimately secured a
favorable ruling permitting the jury to consider whether Janzad acted with the requisite criminal
intent. See September 23, 2025, Tr. at 19:1-14. That ruling was critical. Had the Court rejected
Janzad’s mens rea argument, the offense would effectively have been treated as a strict-liability
crime, leaving her with little to no viable defense. Securing the availability of a mens rea defense
was therefore a crucial victory that Mr. Gorence obtained for Janzad.
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kill others with whom he associated. The absence of other crimes does not negate the mens rea
for the charged offense.
Given this limited probative value, Mr. Gorence reasonably focuses the defense on the
strongest available argument -- that T.H.’s wishes shaped Janzad’s understanding of her authority
and negated fraudulent intent. 	Strategic choices about which themes to emphasize and which
collateral avenues to forgo are judgments to which courts owe deference under Strickland.
Applying that “heavy measure of deference,” Strickland, 466 U.S. at 691, the Court concludes that
Mr. Gorence’s decision not to investigate Janzad’s conduct in other fiduciary accounts falls within
the range of reasonable professional assistance.
Janzad likewise is unable to show that Mr. Gorence’s performance prejudiced her for the
same reason that Mr. Gorence’s lack of investigation is reasonable. See Jones, 852 F.2d at 1277.
Janzad’s contention that that the absence of misconduct elsewhere disproves intent in this case is
weak and speculative. The burden is on Janzad to show that counsel’s errors “were so serious as
to deprive the defendant of a fair trial, a trial whose result is reliable. Strickland, 466 U.S. at 687.
Janzad must establish “that there is a reasonable probability that, but for counsel’s unprofessional
errors, the result of the proceeding would have been different. 	A reasonable probability is a
probability sufficient to undermine confidence in the outcome.” Strickland, 466 U.S. at 694. Thus,
“the question is whether there is a reasonable probability that, absent the errors, the factfinder
would have had a reasonable doubt respecting guilty.” 	Strickland, 466 U.S. at 695. 	“The
likelihood of a different result must be substantial, not just conceivable.” Newmiller v. Raemisch,
877 F.3d 1178, 1197 (10th Cir. 2017). The Court cannot say that the further investigation of weak
and speculative evidence has a substantial likelihood of producing a different result at trial. See
Newmiller v. Raemisch, 877 F.3d at 1197. 	The Court therefore concludes that Mr. Gorence’s
investigations do not prejudice Janzad and Mr. Gorence’s behavior is reasonable. Accordingly,
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the Court denies the MNT insofar as it relies on Mr. Gorence allegedly failing to conduct an
adequate defense investigation into Janzad’s past fiduciary performance.
IV. 	THAT MR. GORENCE ALLEGEDLY FAILS TO COMMUNICATE WITH THE
WITNESSES ON JANZAD’S WITNESS LIST DOES NOT WARRANT A NEW
TRIAL.
Janzad alleges that the most “egregious example” of Mr. Gorence’s deficient investigation
is his purported “complete failure to interview a single witness” on his first witness List. MNT at
17. 	According to Janzad, Mr. Gorence never “attempted to contact a single potential defense
witness or learn the substance of their testimony.” MNT at 17. Janzad contends that this alleged
inaction led to Mr. Gorence proceeding to trial “without having made any independent efforts to
determine whether witnesses and evidence were available to rebut the Government’s case or to
corroborate Janzad’s version of events.” MNT at 17. The United States responds that the mere
fact that Mr. Gorence does not interview certain witnesses, without more, does not amount to
Constitutionally deficient performance. 	See Response at 7. 	The Court agrees with the United
States that Janzad’s allegation that Mr. Gorence does not interview witnesses, without more, does
not amount to ineffective assistance of counsel.
Under Strickland, counsel has a duty “to make reasonable investigations or to make a
reasonable decision that makes particular investigations unnecessary.” 466 U.S. at 691. “In any
ineffectiveness case, a particular decision not to investigate must be directly assessed for
reasonableness in all the circumstances, applying a heavy measure of deference to counsel’s
judgments.” Strickland, 466 U.S. at 691. The question is not whether another lawyer might have
investigated; it is whether Mr. Gorence’s strategic judgment falls within the wide range of
professionally competent assistance.
Here, Janzad asserts that Mr. Gorence fails to interview the individuals listed on his first
witness list, which contains nineteen names. 	See MNT at 17. 	The evidentiary record does not
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support, however, this sweeping claim. Janzad provides affidavits from only two of the nineteen
listed witnesses, and only one of those affiants states that Mr. Gorence does not speak with him.
See Notice of the Submission of Statements in Support of Defendant’s Opposed Motion for a New
Trial at 3-6, filed May 4, 2025 (Doc. 131)(“Witness Affidavits”). She submits no sworn statements
from the remaining seventeen individuals indicating that Mr. Gorence never contacts them. This
limited showing is insufficient to overcome Mr. Gorence’s testimony that he went to VILA’s
facilities and spoke with several individuals there, and that he is “narrowly confident” some of
those individuals were on the first witness list. September 23, 2025, Tr. at 13:13-24 (Gorence).
In light of the absence of contrary evidence from the vast majority of listed witnesses, the Court
credits Mr. Gorence’s testimony and finds that he contacts at least some of the individuals whom
the first witness list identifies.
Even assuming that Mr. Gorence does not interview every person on the first witness list,
Janzad does not demonstrate that such a decision is unreasonable. 	Identifying a category of
uncontacted witnesses, standing alone, does not establish deficient performance. 	The Supreme
Court holds that “a particular decision not to investigate must be directly assessed for
reasonableness in all the circumstances, applying a heavy measure of defense to counsel’s
judgments.” 	Strickland, 466 U.S. at 691. 	Janzad offers no argument why interviewing these
specific individuals is important to the defense strategy, nor does she explain how their anticipated
testimony would alter Mr. Gorence’s strategic calculus. Without such a showing, the Court must
defer to counsel’s professional judgment.
Moreover, Janzad cannot establish prejudice. 	To satisfy Strickland’s second prong, she
must demonstrate that “counsel’s errors were so serious as to deprive the defendant of a fair trial,
a trial whose result is reliable.” 	Newmiller v. Raemisch, 877 F.3d at 1197. 	Although Janzad
submits two affidavits from potential witnesses in support of her motion, she does not explain how
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the testimony in those affidavits meaningfully rebut the United States’ evidence or alter the jury’s
evaluation of her intent. The Court has independently reviewed the affidavits and does not discern
any reasonable probability that their contents would change the trial’s outcome. The statements
do not undermine the central proof that the United States offers, contradict the core factual
narrative that the United States presents at trial, or materially strengthen Janzad’s mens rea defense.
At most, they provide marginal or cumulative information that does not call the verdict’s reliability
into question.
The record instead reflects that Mr. Gorence advances a coherent defense theory focused
on the strongest available argument -- that T.H.’s wishes shape Janzad’s understanding of her
authority and negate fraudulent intent. 	Given the substantial deference owed to Mr. Gorence’s
investigative judgments and the absence of any concrete showing that additional interviews would
alter the result, the Court concludes that Mr. Gorence’s performance Constitutionally is adequate
and that Janzad suffers no prejudice. Accordingly, the Court denies the MNT insofar as it rests on
the allegation that Mr. Gorence fails to conduct an adequate investigation into the witnesses on his
first witness list.
V. 	THAT 	MR. 	GORENCE 	CHOOSES 	NOT 	TO 	CALL 	CORROBORATING
WITNESSES OR CHARACTER WITNESSES DOES NOT WARRANT A NEW
TRIAL.
Janzad argues that she is entitled to a new trial, because Mr. Gorence does not present the
testimony of “available defense witnesses who would have testified that they knew Ms. Janzad
because of the work she did with VILA, and that in working with Ms. Janzad they had formed an
opinion that she was an honest person and that they were aware of her reputation in the community
for honesty and truthfulness.” MNT at 22. The United States responds that Janzad fails to meet
her 	burden 	of 	establishing 	ineffective 	assistance, 	because 	she 	does 	not 	identify 	which
corroborating or character witnesses should testify or explain how their testimony would alter the
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outcome. See Response at 7. The United States further argues that declining to call such witnesses
strategically is sound, particularly because the United States has rebuttal witnesses prepared to
respond if Janzad offers character testimony. 	The Court agrees with the United States that Mr.
Gorence is wise not to call these witnesses and not ineffective.
A court tasked with deciding an ineffective assistance of counsel claim must determine
whether the counsel’s conduct “so undermined the proper functioning of the adversarial process
that the trial cannot be relied on as having produced a just result.” Jones, 852 F.2d at 1276 (citing
Strickland, 466 U.S. at 688). 	The proper standard for assessing attorney performance is that of
reasonably effective assistance under prevailing norms. 	See Jones, 852 F.2d at 1276. 	The
Strickland Court cautions, however, that “judicial scrutiny of counsel’s performance must be
highly deferential, and that every effort be made to eliminate the distorting effects of hindsight.”
Jones, 852 F.2d at 1277 (citing Strickland, 466 U.S. at 689). First, a defendant first must overcome
the “strong presumption that counsel’s conduct falls within the wide range of reasonable
professional assistance.” 	Jones, 852 F.2d at 1277. 	Second, the defendant “must show that
counsel’s performance prejudiced the defense.” Jones, 852 F.2d at 1277. This standard requires
the defendant to show that “counsel’s errors were so serious as to deprive him of a fair trial; a trial
whose result is reliable.” Jones, 852 F.2d at 1277.
First, as to reasonableness, Mr. Gorence’s decision not to call corroborating or character
witnesses is not only permissible; in this case his decision is strategically sound. Janzad does not
identify any specific factual disputes requiring corroboration. The parties do not contest the core
conduct: Janzad commingles T.H.’s funds, uses them for purposes beyond his care, and makes
inaccurate statements concerning those funds. 	See Response at 7. 	Her defense is not factual
innocence, but mens rea -- that she lacks the requisite criminal intent. See August 5, 2024, Tr. at
1406:3-19 (Gorence). Corroborating witnesses therefore have limited utility. To the extent they
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would have confirmed that Janzad engages in good works or is dedicated to veterans, that evidence
does not negate the offenses’ elements. 	Janzad identifies no witness who could have testified
directly to her subjective mental state at the time of the charged conduct. Calling witnesses merely
to restate uncontested facts or to echo Janzad’s own testimony adds little and risks diluting the
focused mens rea that Mr. Gorence presents.
The same reasoning applies to character witnesses. 	Janzad does not specify what any
proposed character witness would say beyond generalized statements regarding honesty or
reputation. 	Moreover, Janzad testifies extensively regarding her work with veterans, thereby
placing her character before the jury in her own words. Introducing additional character witnesses
opens the door to rebuttal evidence. The United States represents that it has two witnesses prepared
to testify in rebuttal if Janzad offers character evidence. 	See Response at 8. 	In light of the
inconsistencies that the United States highlights in Janzad’s testimony, Mr. Gorence reasonably
concludes that inviting rebuttal character evidence poses substantial risk with minimal strategic
upside. Viewed in totality, the decision not to call corroborating or character witnesses falls within
the “wide range of reasonable professional assistance.” Jones, 852 F.2d at 1277.
There is a good reason why very few criminal cases have reputation or opinion/character
witnesses. While the defendant’s character witness can only give a good opinion, the United States
can ask about specific incidents that do not reflect positively on the defendant. 	The cross-
examination is often much worse than any benefit of any opinion introduced.
Second, Janzad cannot demonstrate prejudice. She does not identify any specific factual
issue that, if corroborated, likely would change the jury’s verdict. Instead, she offers two affidavits
-- one from Marshall Estner and one from Louis Aliperta Jr. See Witness Affidavit at 3-6. Janzad
does not provide any explanation how either affidavit would alter the result. The Court reviews
both affidavits carefully. 	The Estner affidavit emphasizes that Janzad does not enrich herself
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personally, but instead uses funds for VILA’s operating expenses. See Witness Affidavits at 3.
That assertion does not undermine the United States’ theory; using fiduciary funds for
unauthorized purposes remains a violation of the fiduciary agreement regardless of personal
enrichment. 	The Aliperta affidavit focuses largely on Janzad’s dedication and good works at
VILA. See Witness Affidavits at 4. Based on the information in the affidavit, Aliperta could have
testified to Janzad’s character by reputation or opinion only. See United States v. Talamante, 981
F.2d 1153, 1156 (10th Cir. 1992)(“When character evidence is used circumstantially to create an
inference that a person acted in conformity with his or her character, Rule 405 allows proof of
character only by reputation and opinion.”). That testimony invites rebuttal and does not negate
the charged offense’s elements.
Neither affidavit meaningfully weakens the United States’ proof nor materially strengthens
the mens rea defense. Given the substantial deference the Court owes to Mr. Gorence’s strategic
judgments and the absence of a reasonable probability that these witnesses would alter the
outcome, the Court concludes that Mr. Gorence’s performance is constitutionally adequate and
that Janzad does not demonstrate prejudice. 	Jones, 852 F.2d at 1277. 	Accordingly, the Court
denies the MNT insofar as it rests on Mr. Gorence’s decision not to call corroborating or character
witnesses.
VI. 	THAT MR. GORENCE’S ALLEGEDLY THREATENS TO STOP WORKING ON
THE CASE UNLESS JANZAD PAYS ADDITIONAL ATTORNEY’S FEES DOES
NOT WARRANT A NEW TRIAL.
Janzad next alleges that Mr. Gorence renders ineffective assistance by threatening to stop
working on her case unless she pays additional attorney’s fees. See MNT at 18-19. She contends
that Mr. Gorence uses the need to prepare for trial as leverage to demand higher compensation.
See MNT at 18. The United States responds that, even if this conduct occurs, it does not amount
to ineffective assistance of counsel, because it does not affect the presentation of evidence, the
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theory of defense, or the reliability of the verdict. See Response at 8. The Court agrees with the
United States that this conduct does not amount to ineffective assistance of counsel, because it
does not undermine confidence in the verdict.
A court tasked with deciding an ineffective assistance of counsel claim must determine
whether the counsel’s conduct “so undermined the proper functioning of the adversarial process
that the trial cannot be relied on as having produced a just result.” Jones, 852 F.2d at 1276 (citing
Strickland, 466 U.S. at 688). 	The proper standard for assessing attorney performance is that of
reasonably effective assistance under prevailing norms. 	See Jones, 852 F.2d at 1276. 	The
Strickland Court cautions, however, that “judicial scrutiny of counsel’s performance must be
highly deferential, and that every effort be made to eliminate the distorting effects of hindsight.”
Jones, 852 F.2d at 1277 (citing Strickland, 466 U.S. at 689). First, a defendant first must overcome
the “strong presumption that counsel’s conduct falls within the wide range of reasonable
professional assistance.” 	Jones, 852 F.2d at 1277. 	Second, the defendant “must show that
counsel’s performance prejudiced the defense.” Jones, 852 F.2d at 1277. This standard requires
the defendant to show that “counsel’s errors were so serious as to deprive him of a fair trial; a trial
whose result is reliable.” Jones, 852 F.2d at 1277.
Even accepting Janzad’s allegations as true for purposes of this motion, she has not
demonstrated that Mr. Gorence’s fee-related communications fall outside the “wide range of
reasonable professional assistance.” Jones, 852 F.2d at 1277. Janzad asserts that, after she paid
the additional fees, Mr. Gorence took only “minimal action” to prepare for trial. MNT at 19. That
allegation, however, is wholly conclusory. She does not identify any specific strategic decision
that is compromised, any investigative lead that Mr. Gorence abandoned, any witness whom Mr.
Gorence should have interviewed but does not, any exhibit that Mr. Gorence should offer for
introduction but Mr. Gorence omits, or any argument that Mr. Gorence does not make because of
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the fee dispute. 	Nor does she contend that Mr. Gorence seeks to withdraw, ceases preparation
altogether, or otherwise fails to perform trial counsel’s core functions. Absent concrete examples
tying the alleged fee dispute to identifiable deficiencies in performance, the Court cannot conclude
that the conduct falls outside the bounds of Constitutionally reasonable representation.
The Sixth Amendment guarantees effective representation at trial and not harmonious fee
negotiations. 	Disputes 	over 	billing 	practices, 	even 	contentious 	ones, 	do 	not 	constitute
Constitutional violations unless they impair counsel’s performance in a manner that undermines
the proceeding’s fairness or reliability. 	Jones, 852 F.2d at 1276 (citing Strickland, 466 U.S. at
688). Here, the record reflects that Mr. Gorence tries the case, presents a coherent defense theory,
cross-examines witnesses, and argues the mens rea issue to the jury. Janzad does not show that
any aspect of that performance was diminished because of the alleged fee dispute.
To the extent that Janzad believes Mr. Gorence’s collection tactics are improper, such
concerns may implicate professional-conduct rules. The question before the Court is not whether
counsel’s tone or billing methods are ideal; it is whether his conduct renders the trial
constitutionally unreliable. On this record, Mr. Gorence’s demand does not affect his performance.
Accordingly, Mr. Gorence’s collection tactics fall within the “wide range of reasonable
professional assistance.” Jones, 852 F.2d at 1277.
For the same reasons, Janzad cannot establish prejudice. 	This standard requires the
defendant to show that “counsel’s errors were so serious as to deprive him of a fair trial; a trial
whose result is reliable.” Jones, 852 F.2d at 1277. She identifies no specific way in which the
alleged demand for additional fees affects the trial’s outcome. She does not point to any evidence
that Mr. Gorence does not introduce, any witness whom Mr. Gorence does not call, or any
argument that Mr. Gorence does not make because of the fee dispute. Without a concrete showing
that the alleged conduct alters the adversarial process or affects the verdict, the Court cannot
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conclude that Mr. Gorence deprives Janzad of a fair trial. Accordingly, the Court concludes that
Mr. Gorence’s alleged fee-related threats do not constitute ineffective assistance of counsel, and
the Court denies the MNT on this ground.
VII. 	THAT MR. GORENCE ALLEGEDLY ALLOWS THE UNITED STATES TO
INTRODUCE EVIDENCE INVOLVING FORMER VILA BOARD MEMBER,
RICHARD PADILLA, DOES NOT WARRANT A NEW TRIAL.
Janzad next argues that the Court should grant a new trial, because Mr. Gorence permits
the United States to introduce evidence relating to her prior involvement with former VILA board
member Richard Padilla. See MNT at 21. Janzad contends that the Court should exclude evidence
relating to Padilla under rule 404(b). See MNT at 21. Janzad also argues that Mr. Gorence fails
to object to Exhibit 96 and Exhibit 97 -- the deed of trust and warranty deed relating to the property
on which Padilla holds a mortgage. 	See MNT at 21. 	According to Janzad, the United States
introduces these exhibits to establish a pattern of her “abusing influence” and “fiduciary
responsibility.” MNT at 21. Finally, Janzad asserts that the United States mischaracterizes her
transaction with Padilla and that Mr. Gorence cannot correct the alleged mischaracterization,
because of his failure to investigate and because of his lack of preparation. See MNT at 21.
The United States responds that the Court rules that information about the transaction
between Janzad and Padilla is intrinsic and res gestae evidence, because the value of the second
mortgage is contingent on the status of the first mortgage that Padilla holds. See Response at 17.
The United States agrees with the Court’s ruling, arguing that the fact that Janzad creates a second
mortgage on the property while withholding facts about the first mortgage that Padilla holds
demonstrates consciousness of guilt and bad faith. See Response at 17. The United States further
argues that Janzad makes several damaging admissions during her cross-examination and
acknowledges facts that she now characterizes as the United States’ misstatements. See Response
at 17. 	The Court agrees with the United States that Mr. Gorence’s conduct regarding the
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introduction of evidence relating to Padilla does not warrant a new trial.
A court tasked with deciding an ineffective assistance of counsel claim must determine
whether the counsel’s conduct “so undermined the proper functioning of the adversarial process
that the trial cannot be relied on as having produced a just result.” Jones, 852 F.2d at 1276 (citing
Strickland, 466 U.S. at 688). The proper standard for assessing attorney performance is that of
reasonably effective assistance under prevailing norms. 	See Jones, 852 F.2d at 1276. 	The
Strickland Supreme Court cautions, however, that “judicial scrutiny of counsel’s performance must
be highly deferential, and that every effort be made to eliminate the distorting effects of hindsight.”
Jones, 852 F.2d at 1277 (citing Strickland, 466 U.S. at 689). First, a defendant must overcome the
“strong presumption that counsel’s conduct falls within the wide range of reasonable professional
assistance.” Jones, 852 F.2d at 1277. 	Second, the defendant “must show that counsel’s
performance prejudiced the defense.” 	Jones, 852 F.2d at 1277. 	This standard requires the
defendant to show that “counsel’s errors were so serious as to deprive him of a fair trial; a trial
whose result is reliable.” Jones, 852 F.2d at 127.
The Court first must determine whether Mr. Gorence’s conduct surrounding the United
States’ cross-examination of Janzad about the first mortgage involving Padilla is reasonable. See
Jones, 852 F.2d at 1277. Despite Janzad’s assertion that Mr. Gorence allows the United States to
introduce evidence relating to Padilla, the record reflects that Mr. Gorence repeatedly opposes the
admission of evidence concerning the property, mortgage, and related lawsuit between Janzad and
Padilla on the ground that it constitutes prohibited rule 404(b) evidence. Far from acquiescing in
the introduction of the evidence, Mr. Gorence actively and consistently sought its exclusion.
During cross-examination, the United States questions Janzad about the first mortgage for
the 1709 Georgia property. See August 2, 2024, Tr. at 1236:9-21 (Peña). This mortgage originally
is between Wells Fargo and Padilla. See August 2, 2024, Tr. at 1236:19-24 (Pena, Janzad). Janzad
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is Padilla’s power of attorney and conducts a cash-out refinance of the property, using the loan
proceeds for her business. 	See August 2, 2024, Tr. at 1271:3-7 (Peña, Janzad). 	While cross-
examining Janzad about the first mortgage, the United States seeks to introduce Exhibit 96, the
deed of trust for the 1709 Georgia property. See August 2, 2024, Tr. at 1267:18-19 (Peña). When
the United States moves to admit Exhibit 96, Mr. Gorence conducts a voir dire of Janzad to
determine her familiarity with the document. 	See August 2, 2024, Tr. at 1267:20-21 (Court,
Gorence). Following this voir dire, Mr. Gorence objects to Exhibit 96, stating that Janzad “doesn’t
have a basis of familiarity” with the document. August 2, 2024, Tr. at 1269:21-25 (Gorence). The
Court then allows the United States further to lay a foundation to establish her connection to the
deed. See August 2, 2024, Tr. at 1270:8-10 (Court). After the United States attempts to establish
that foundation, Mr. Gorence again objects and requests to approach, arguing that evidence
concerning the first mortgage does not relate to T.H. and constitutes impermissible rule 404(b)
evidence. See August 2, 2024, Tr. at 1272:1-15 (Gorence).
The record reflects that, during the ensuing sidebar, Mr. Gorence repeatedly argues that
the Padilla evidence constitutes rule 404(b) evidence:
Gorence: 	I would just like to know what this is being offered for, because it
sounds like this is quintessential 404(b) that’s never been noticed,
and haven't had a chance to object to it. We could have had pretrial
litigation over it. I've never seen this, never put in the discovery.
Court: 	Is the purpose of this, 404(b)?
Pena: 	No, sir. This is intrinsic. Because my next document is going to be
the transfer of 1709 Georgia, which is the property that we're talking
about in this case. 	The next document is going to be the transfer
from Padilla to VILA, to connect it up, so the jury can understand
why she was doing this in relation to this particular property, 1709.
Gorence: 	But, Your Honor, that's 404(b), another act. 	They're going to say
this is a pattern.
August 2, 2024, Tr. at 1272:16-1273:9 (Gorence, Court, Pena).
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Gorence: 	If it's limited to the mortgage -- I just don't want any argument that
this Garcia [] transaction was improper at all. We've already heard
that a veteran can give money. We've heard it from three of their
witnesses; that as long as the veteran is competent, they can do
whatever they want with it. Started with Mr. Quijano, even Mr.
Gonzales. 	I understand the language. 	This will -- why it's a jury
question, why I didn't raise a Rule 29-- testimony is very adverse --
says she can do exactly that from VA personnel. 	I don't have a
problem with this as long as they could -- you did this; another
veteran did exactly what Hubshman did. 	If they're saying it's
improper, I totally object. 404(b), one of the purposes would be to
show intent. That's one thing you can do. They're saying it is an
improper transaction.
August 2, 2024, Tr. at 1275:14-1276:5 (Gorence).
Gorence: 	I'm still objecting. That's 404(b).
Court: 	What he just said is not prejudicial to her. He may use it in
closing.
Gorence: 	He just said she used the power of attorney inappropriately. He's
saying that that power of attorney was used, a second mortgage.
She sucked money out without his knowledge.
Court: 	If you don't want him to ask leading questions, I'm going to let him
ask those questions to elicit that testimony. And no telling what
she's going to say.
Gorence: 	Well, okay. But all I'm getting at, that's 404(b), Your Honor.
August 2, 2024, Tr.1280:9-22 (Gorence, Court).
In sum, the record contradicts Janzad’s contention that Mr. Gorence stands idly by while
the United States introduces the Padilla evidence. Janzad offers only conclusory assertions, which
fall short of overcoming the “strong presumption that counsel’s conduct falls within the wide range
of reasonable professional assistance.” Strickland, 466 U.S. at 669. The transcript instead reflects
a vigorous adversarial process in which Mr. Gorence repeatedly objects to the introduction of the
Padilla evidence and advances multiple rule 404(b) arguments during sidebar discussions with the
Court. Mr. Gorence also objects specifically to the admission of Exhibit 96, arguing that the Court
should exclude the deed of trust and related questioning under rule 404(b). 	Once the Court
overrules that objection after the United States lays additional foundation, it is not unreasonable
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for Mr. Gorence to decline to lodge a redundant objection to Exhibit 97 -- the warranty deed for
the same property -- particularly where the Court already rules on the admissibility of the
underlying subject matter.
In addition to Mr. Gorence’s conduct being reasonable, Janzad is also unable to show that
Mr. Gorence’s conduct prejudices her. 	See Jones, 852 F.2d at 1277. 	Counsel’s error, even if
unreasonable, “does not warrant setting aside the judgment of a criminal trial if the error has no
effect on the judgment.” 	Jones, 852 F.2d at 1277. The Court ruled during trial that the Padilla
evidence is intrinsic to the transactions that places the Georgia property in Janzad’s control. See
August 2, 2024, Tr. at 1273:13-17 (Court). Because the Court admits the evidence on that basis -
- not under rule 404(b) -- its admission is neither improper nor unfairly prejudicial.
Additionally, Janzad does not meet her burden of showing that exclusion of this evidence
alters the jury’s verdict. See Strickland, 466 U.S. at 694. During the trial, the Court observes that
Janzad describes the lawsuit between her and Padilla to the jury, thereby introducing the details
that she now characterizes as prejudicial. See August 2, 2024, Tr. at 1292:21-1293:5 (Court, Pena).
Moreover, as the Court previously notes, Janzad frequently declines to answer questions directly
or provide expansive responses to questions that called for simple yes-or-no answers. 	These
responses -- which often introduce additional information beyond the scope of the United States’
questions -- are the product of her own testimony and not counsel’s performance.
For these reasons, Janzad does not satisfy either Strickland prong. The record demonstrates
that Mr. Gorence actively opposes the admission of the Padilla evidence and advances multiple
rule 404(b) objections during trial. Even if Mr. Gorence objects differently or more frequently, the
Court’s ruling admitting the evidence as intrinsic does not change. 	Nor does Janzad show a
reasonable probability that the jury’s verdict is different, absent the challenged evidence.
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Accordingly, the Court denies the MNT to the extent it relies on the allegation that Mr. Gorence
allows the admission of improper evidence regarding Padilla.
IT IS ORDERED that the Defendant’s Opposed Motion for a New Trial, filed May 1,
2025 (Doc. 126), is denied.
________________________________
UNITED STATES DISTRICT JUDGE
Counsel:
Todd Blanche
Deputy Attorney General
Ryan Ellison
First Assistant United States Attorney
Frederick T. Mendenhall, III
Assistant United States Attorneys
United States Attorney’s Office
Albuquerque, New Mexico
Attorneys for the Plaintiff
Jon K. Stanford
The Law Office of Jon Stanford
Albuquerque, New Mexico
--and--
Joel R. Meyers
Santa Fe, New Mexico
-- and --
Shaheen P. Torgoley
Ryan Rapp Pacheco & Kelley, PLC
Phoenix, Arizona
-- and --
Brian Pori
Albuquerque, New Mexico
Attorneys for the Defendant
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