F I L E D
United States Court of Appeals
Tenth Circuit
UNITED STATES COURT OF APPEALS
SEP 3 1997
FOR THE TENTH CIRCUIT
PATRICK FISHER
Clerk
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v. No. 95-1519
(D.C. No. 94-CB-466)
GERALD LEO ROGERS, (D. Colo.)
Defendant-Appellant.
ORDER AND JUDGMENT *
Before KELLY and LOGAN, Circuit Judges, and DOWNES, ** District Judge.
After examining the briefs and appellate record, this panel has determined
unanimously that oral argument would not materially assist the determination of
this appeal. See Fed. R. App. P. 34(a); 10th Cir. R. 34.1.9. The case is therefore
ordered submitted without oral argument.
*
This order and judgment is not binding precedent, except under the
doctrines of law of the case, res judicata, and collateral estoppel. The court
generally disfavors the citation of orders and judgments; nevertheless, an order
and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3.
**
The Honorable William F. Downes, District Judge, United States District
Court for the District of Wyoming, sitting by designation.
Defendant was charged in a thirty-count superseding indictment with mail
fraud, RICO violations, securities fraud, tax fraud, obstruction of justice, and
conspiracy in connection with his involvement with two mining tax shelters in
Canada and French Guiana. He fled the country and was eventually extradicted
from Switzerland for trial. He was convicted on ten counts of mail fraud and
three counts of securities fraud and sentenced to twenty-five years imprisonment.
On appeal this court affirmed defendant’s conviction on nine counts and
remanded to the district court with instructions to dismiss four counts based on
collateral estoppel.
Defendant filed a motion to reverse, vacate, set aside, or correct his
sentence, pursuant to 28 U.S.C. § 2255, with respect to which the district court
denied relief. 1 The appeal raises the issues of ineffective assistance of counsel,
1
Defendant filed his § 2255 motion on February 28, 1994. He filed a
“Supplement To Writ Of Habeas Motion” on December 30, 1994, raising a double
jeopardy issue. The district court denied the § 2255 motion on January 30, 1995,
and denied defendant’s motion for reconsideration on February 15, 1995. Neither
of those orders mentioned the “supplement,” nor did they address the double
jeopardy issue. Thereafter, defendant filed several motions regarding the double
jeopardy issue, including one asking the court to grant him summary judgment on
the double jeopardy issue or to clarify whether the orders denying § 2255 relief
and reconsideration constituted a final judgment on all issues, including double
jeopardy. The district court did not respond, and ultimately defendant filed
“Movant’s Motion And Notice Of Hearing On Motion For Reconsideration To
Conduct Hearing Concerning The Alteration Of Trial Transcripts, Or, In
Alternative, Hearing For Default Judgment On Motion To Dismiss For Reasons
Of Double Jeopardy Due To Movant’s Immediate Liberty Interest.” I R. doc 1.
(continued...)
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double jeopardy, Brady violations, and transcript tampering which defendant
asserts require reversal of his convictions or a new trial. We exercise jurisdiction
under 28 U.S.C. § 1291 and affirm.
I
Defendant argues that his Sixth Amendment right to counsel was violated
because he received ineffective assistance of counsel as a result of a conflict of
interest that occurred when his attorneys, Pierce O’Donnell and Jeffery Gordon,
secretly testified before the grand jury that returned his indictment. O’Donnell
and Gordon had represented defendant on various matters, and they were his
attorneys during the grand jury investigation that resulted in defendant’s
indictment. O’Donnell testified before the grand jury, and Gordon represented
O’Donnell, remaining outside the grand jury room. After defendant’s indictment
in 1984, O’Donnell and Gordon continued to represent defendant, participating in
numerous pre-trial matters. O’Donnell and Gordon were granted leave to
withdraw as defendant’s counsel in August 1987 when defendant failed to make a
1
(...continued)
The district court dismissed defendant’s motion for lack of merit on November 2,
1995. Defendant filed his notice of appeal on December 14, 1995. Because
defendant filed his notice of appeal within sixty days, see Fed. R. App. P. 4(a),
from the district court’s order denying his motion to dismiss based on double
jeopardy--the last issue in the § 2255 action--we hold that defendant’s appeal was
timely.
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court appearance and fled the country. Defendant represented himself at trial
with a public defender as advisory counsel.
The Sixth Amendment right to effective assistance of conflict-free counsel,
see United States v. Cook, 45 F.3d 388, 393 (10th Cir. 1995), attaches only after
initiation of adversary proceedings against a defendant, in this case formal charge
by indictment. See Kirby v. Illinois, 406 U.S. 682, 688-89 (1972). Thus, to the
extent defendant argues that O’Donnell’s grand jury testimony and a pre-
indictment meeting between government attorneys and O’Donnell and Gordon
violated his Sixth Amendment rights, the argument fails. Further, defendant has
not demonstrated an actual conflict of interest that adversely affected his
attorneys’ performance from the time he was charged by indictment until they
withdrew following defendant’s disappearance. See Cuyler v. Sullivan, 446 U.S.
335, 348 (1980). 2 The record reveals no prejudice resulting from O’Donnell’s
and Gordon’s representation of defendant, and, therefore, defendant has not
established ineffective assistance of counsel. See Strickland v. Washington, 466
U.S. 668, 687 (1984) (requiring prejudice resulting from constitutionally deficient
performance of counsel).
2
As the district court recognized, although O’Donnell and Gordon did not
represent defendant at trial, they enjoyed some success on pretrial motions before
they withdrew.
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II
Defendant argues that his criminal prosecution after the seizure of his
assets by the Canadian government and the Seventh Elect Church through state
process violated his right to be free from double jeopardy.
The Double Jeopardy Clause prohibits the government from punishing
twice for the same offense. See United States v. Ursery, 116 S. Ct. 2135, 2139-40
(1996). Defendant’s conclusory allegations, however, that the United States
government was responsible for the seizures by the Canadian government and for
the state forfeitures in favor of the Seventh Elect Church, are completely
unsupported by evidence. Defendant has not shown that the United States
government was connected in any way with the alleged loss of his property, or
that such loss was the result of punitive action.
III
Defendant cites three pieces of information that he claims the government
had a duty to disclose under the doctrine announced in Brady v. Maryland, 373
U.S. 83 (1963). We agree with the district court that this claim was procedurally
barred because defendant failed to raise it on direct appeal. 3 See United States v.
Cox, 83 F.3d 336, 341 (10th Cir. 1996). Defendant does not argue cause and
3
Defendant did raise an unrelated Brady issue on direct appeal.
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prejudice for failing to raise the issue nor does he argue a fundamental
miscarriage of justice if it is not considered. Further, even if the claim were not
barred it is unmeritorious. Brady requires that the evidence be material to either
guilt or punishment; “the relevant standard of materiality does not focus on the
trial preparation, but instead on whether earlier disclosure would have created a
reasonable doubt of guilt that did not otherwise exist.” United States v. Rogers,
960 F.2d 1501, 1510-11 (10th Cir.) (quotation omitted) cert. denied, 506 U.S.
1035 (1992). Defendant’s conclusory allegations regarding the value of the
allegedly concealed evidence in impeaching witnesses do not satisfy the
materiality requirements.
IV
Defendant alleges that his trial transcript was altered. On appeal he
abandons his accusations against the trial judge and the court reporter and asserts
that the transcript was altered by unknown persons. The district court squarely
rejected defendant’s claim, finding that he “produced absolutely no evidence to
support his claim except for an affidavit signed by his co-defendant Gary
Coomber, stating that ‘to the best of [his] recollection’ certain testimony has been
omitted from the transcript.” App. at 294. We find no error in the district court’s
ruling on this issue.
V
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Because we have found no error in the district court’s disposition of
defendant’s arguments, we hold that there is no cumulative error. In addition, we
reject defendant’s several requests for an evidentiary hearing. The record and
filings before us on the § 2255 motion “conclusively show that [defendant] is
entitled to no relief,” and, therefore, the district court was not required to hold an
evidentiary hearing on his claims. United States v. Simmonds, 111 F.3d 737, 746
(10th Cir. 1997).
AFFIRMED.
Entered for the Court
James K. Logan
Circuit Judge
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