Any v. United States

March 2, 1995
[NOT FOR PUBLICATION]
UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT

No. 93-2281

J. MICHAEL ANY,
Petitioner, Appellant,

v.

UNITED STATES OF AMERICA,
Respondent, Appellee.

No. 94-1340

J. MICHAEL ANY,
Plaintiff, Appellant,

v.

UNITED STATES OF AMERICA,
Defendant, Appellee.

APPEALS FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS

[Hon. Rya W. Zobel, U.S. District Court Judge]

Before

Selya, Cyr and Boudin,
Circuit Judges

J. Michael Any on brief pro se.

Donald K. Stern, United States Attorney, and Nadine Pelegrini,

Assistant United States Attorney, on brief for appellee.

Per Curiam. J. Michael Any ("appellant") appeals pro se

the denial of his petition under 28 U.S.C. 2255 to vacate

his conviction, as well as his motion under Fed. R. App. P.

10(e) to correct the record. We affirm.

BACKGROUND

On March 20 1990, a federal indictment was returned

charging appellant, Barney Canada, and Gayle Canada with

operating an "advance fee" scheme in which they allegedly

defrauded potential borrowers by falsely representing that

they could arrange financing for them and then, when the

financing did not occur, refusing to refund the advance fees.

Appellant, in particular, was charged with one count of

conspiracy, see 18 U.S.C. 371, twelve counts of wire fraud,

see 18 U.S.C. 1343, and one count of mail fraud, see 18

U.S.C. 1341. Some time thereafter, appellant made a

massive proffer of documentary evidence to the government.

Initial plea negotiations apparently failed. On July 17,

1990, a superseding indictment was returned which charged

appellant with an additional count of wire fraud.

The trial began on March 4, 1991. In its opening, the

government outlined a complex scheme to defraud which began

in early 1987 when co-defendant Barney Canada set up various

shell corporations, including a merchant bank on the

Caribbean island of Saint Kitts, and advertised in various

newspapers that he could fund or arrange funding for large

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commercial projects. Sometime in late 1987, Canada enlisted

appellant in his plan. At the time, appellant was employed

by ComFed Advisory Group, a subsidiary of ComFed Savings

Bank. During late 1987 and early 1988, after having been

terminated by ComFed, appellant held himself out to potential

borrowers as a manager at ComFed and falsely represented that

ComFed would provide them with funding. Appellant also set

up an account at the Bank of Boston called the ComFed

Advisory Client Group account. Prospective borrowers, whose

advance fees were placed in this account, were misled into

believing that their money was being held in safe escrow by

ComFed Savings Bank. In February or March 1988, appellant

took over and operated through the bank on Saint Kitts even

though it was never licensed. During the course of the

conspiracy, appellant and Canada misled potential borrowers

in many ways. Among other things, they misrepresented their

background and experience; demanded large advance fees, which

were to be held in safe escrow but were, in fact, converted

to their personal use; and made no valid attempts to arrange

financing for their clients.

For his part, defense counsel painted a very different

picture. He submitted that the evidence would show that

appellant was a "patsy," who was lulled into believing that

what Canada was doing was legitimate, in part, by appellant's

past dealings with Canada, but also by Canada's employment of

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a well-appointed Boston law firm and his association with

former Senator Vance Hartke of Indiana. Defense counsel

further submitted that appellant spent a lot of money and a

lot of time actively attempting to arrange loan packages,

that he had no intent to defraud, and that appellant,

himself, was defrauded by Barney Canada.

During five days of trial, the government submitted

evidence which strongly showed that appellant was a knowing

participant in the scheme to defraud. On the sixth day of

trial, near the close of the government's case, appellant

expressed his desire to plead guilty. After conducting a

thorough colloquy, in accord with Fed. R. Crim. P. 11, the

district court accepted the change of plea. Appellant

admitted, under oath, that potential borrowers had got the

"run around." He also indicated that he was satisfied with

trial counsel's representation and that his change of plea

was voluntary. On May 23, 1991, appellant was sentenced to

eighteen months imprisonment, followed by a period of

supervised release. There was no direct appeal.

On February 23, 1993, appellant filed a pro se petition

to vacate his conviction under 28 U.S.C. 2255 alleging

ineffective assistance of trial counsel, prosecutorial

misconduct, and lack of jurisdiction. The petition was later

amended to allege, as a fourth ground for relief, the denial

of appellant's rights to due process and compulsory process

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based on trial counsel's alleged failure to subpoena

"indispensable witnesses" and the government's alleged

failure to extend immunity to these witnesses. With his

petition, appellant filed initial and continuing affidavits,

as well as seven volumes of documentary evidence. On March

1, 1993, appellant filed various motions including a motion

for the appointment of "assistant" counsel, for the

production of grand jury minutes documenting attendance and

voting, for the production of trial transcripts [at

government expense], and for an evidentiary hearing and oral

argument for the purpose of introducing "documentary evidence

without limitation." These motions were denied. In May

1993, appellant filed a motion for summary judgment, a

discovery request, and a motion for expansion of the record

to include all documentary materials referred to in the

initial and continuing affidavits. The district court denied

these motions on September 16, 1993. On September 21, 1993

the district court denied the 2255 petition. Appellant

filed a timely notice of appeal.

On March 14, 1994, after filing his appellate brief,

appellant filed a motion in the district court under Fed. R.

App. P. 10(e) for correction of the transcript of the change

of plea hearing. Appellant alleged that this transcript

omitted a statement that he had made in open court protesting

his innocence and blaming his attorney for failing to procure

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witnesses. In opposition, the government provided the

district court with a statement from the court reporter re-

certifying the accuracy of the transcript based on his review

of his notes and the voice recording of the plea colloquy.

The government also submitted an affidavit by the prosecutor

on appeal attesting to the accuracy of the transcript based

on her own review of the voice recording. The district court

denied the Rule 10(e) motion without evidentiary hearing, and

appellant appealed. We subsequently granted appellant's

motion to consolidate the two appeals.

DISCUSSION

As an initial matter, we observe that when a dispute

concerning the accuracy of the record has been submitted to

the district court, "the court's determination is conclusive

`absent a showing of intentional falsification or plain

unreasonableness.'" United States v. Serrano, 870 F.2d 1, 12

(1st Cir. 1989) (quoting United States v. Mori, 444 F.2d 240,

246 (5th Cir.), cert. denied, 404 U.S. 913 (1971)). There

has been no such showing here, and appellant fails to advance

any persuasive reason why an evidentiary hearing on his Rule

10(e) motion was necessary. Accordingly, we reject

appellant's argument that the district court erred in denying

his Rule 10(e) motion, and we accept the transcript of the

change of plea hearing as an accurate record.

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We turn next to appellant's allegations that his trial

counsel rendered ineffective assistance. A defendant who

pleads guilty and later seeks to set aside his conviction

based on inadequate counsel must demonstrate that his

counsel's performance fell below an objective standard of

reasonableness and "a reasonable probability that, but for

counsel's errors, he would not have pleaded guilty and would

have insisted on going to trial." Hill v. Lockhart, 474 U.S.

52, 56-59 (1985). We accept statements made by the accused

in a change of plea proceeding as true, unless he offers

"credible, valid reasons why a departure from those earlier

contradictory statements is now justified." Hernandez-

Hernandez v. United States, 904 F.2d 758, 762 (1st Cir. 1990)

(quoting United States v. Butt, 731 F.2d 75, 80 (1st Cir.

1984)).

Applying these standards, we cannot say that the

district court erred in rejecting appellant's claim of

ineffective assistance based on "distracted" and "unprepared"

counsel. Appellant's principal complaint is that his trial

counsel did not have a "working knowledge" of the one hundred

and twenty-five volumes of documentary evidence appellant

provided him and failed to ensure that appellant had the

witnesses he needed in his defense. However, trial counsel's

performance before and during the five days of trial

demonstrates that he was focused and well-prepared. Counsel

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filed many pre-trial motions on appellant's behalf,

effectively cross-examined the government's witnesses, and

introduced numerous documents into evidence. Counsel also

submitted a proposed witness list of approximately thirty

witnesses and subpoenaed three out-of-state witnesses,

including Senator Vance Hartke, Jan Hartke, and Bob Schatz.

Moreover, appellant fails to offer any valid reason

which would explain why he expressed his satisfaction with

trial counsel at the plea colloquy when he now claims that he

was forced to plead guilty because of trial counsel's

incompetence. In particular, we reject appellant's

suggestion that he was misled when trial counsel advised him

that attorneys Barry Klickstein and Paul Roberts, members of

the law firm employed by Barney Canada, would be unavailable

to testify on appellant's behalf. Although these attorneys

had indicated their intention, if called as witnesses, to

exercise their Fifth Amendment privilege, appellant argues

that there are various ways his attorney could have resolved

the dilemma. Evaluating trial counsel's practical advice, as

we must, from his perspective at the time, we cannot say that

it fell below an objective level of competency. Klickstein

and Roberts appeared to be additional targets of the

government's investigation, making it unlikely that the

government would seek formal immunity for them. See 18

U.S.C. 6003. In addition, most courts have held that

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judges are powerless to confer immunity. United States v.

Angiulo, 897 F.2d 1169, 1191 (1st Cir.) (collecting cases),

cert. denied, 498 U.S. 845 (1990).1

Appellant also urges that his trial counsel was

ineffective because he operated under a conflict of interest.

According to appellant, trial counsel was a former colleague

of attorney Bruce Singal, who had represented appellant

during some of the period covered by the indictment. It

appears from the materials filed that appellant hired

Attorney Singal on or about the time the FBI began to

investigate the financing scheme. Appellant also alleges

that trial counsel went to law school with Jan Hartke, the

son of Senator Vance Hartke. Senator Hartke, also an

attorney, had been hired as a special consultant to the bank

on Saint Kitts. Appellant apparently wished to call both

Senator Hartke and Attorney Singal in support of a defense of

advice of counsel, but trial counsel advised against it.

Appellant now suggests that trial counsel's advice proceeded

from his loyalty towards Singal and to the Hartkes, and that

it conflicted with appellant's interests.

1. Although a trial judge might refuse to entertain the
prosecution if it found that defense testimony had been
thwarted by prosecutorial misconduct, see United States v. De

La Cruz, 996 F.2d 1307, 1313 (1st Cir.), cert. denied, 114 S.

Ct. 356 (1993), there would have been, in this case, no
apparent basis to urge such a finding.

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To demonstrate an actual conflict of interest, a

defendant must show that a defense strategy or tactic

inherently in conflict with his attorney's other loyalties

possessed sufficient substance to be a viable alternative.

United States v. Fahey, 769 F.2d 829, 836 (1st Cir. 1985).

Based on the record, we do not think that appellant has

sustained this burden. There is no evidence, and appellant

does not allege, that either Hartke or Singal were kept fully

informed of all important and material facts or that

appellant acted strictly in accord with their advice in his

dealings with prospective borrowers. See Liss v. United

States, 915 F.2d 287 (7th Cir. 1990) (setting forth elements

of "advice of counsel" defense). Indeed, based on

appellant's affidavits and exhibits, it appears that Hartke

and Singal had limited roles as legal counsel in the instant

matter. Hartke allegedly provided some guidance to the bank

on Saint Kitts during its "early affairs." Singal was hired

after most of the acts charged in the indictment had already

taken place.2 Since an advice of counsel defense built upon

2. In one of the exhibits filed below, appellant states that
he employed Attorney Singal between June and August 1988.
Most of the acts charged in the indictment occurred during
1987 and the first half of 1988.

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their testimony was not a viable alternative, we do not find

an actual conflict of interest.3

We need not linger long on appellant's allegations of

prosecutorial misconduct. Appellant contends, inter alia,

that the prosecution employed perjured testimony before the

grand jury, failed to present exculpatory evidence to the

second grand jury, engaged in selective prosecution, and

failed to grant immunity to witnesses essential to his

defense. We express no opinion on the merits of these

claims. A knowing and voluntary guilty plea waives all

nonjurisdictional defects. United States v. Broce, 488 U.S.

563, 569 (1989); Valencia v. United States, 923 F.2d 917, 920

(1st Cir. 1991). Since appellant has made no persuasive

argument that actions by the prosecution rendered his guilty

plea involuntary, his claims based on prosecutorial

misconduct are foreclosed.

Finally, we turn to appellant's argument that the

district court should have granted him an evidentiary

hearing. Under Rule 4 of the Rules Governing Proceedings in

the U.S. District Courts under 2255, the district court was

entitled to dismiss the petition if it appeared "from the

face of the motion and any annexed exhibits and the prior

3. We add that trial counsel's advice against proceeding
with Senator Hartke as a witness appears to have been a
strategic decision. Hartke had indicated that he would
"bury" appellant if called to testify.

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proceedings in the case that the movant is not entitled to

relief . . . " We have clarified that when, as in this case,

a 2255 petition is presented to the judge who presided over

the trial, "the judge is at liberty to employ the knowledge

gleaned during previous proceedings and make findings thereon

without convening an additional hearing." United States v.

McGill, 11 F.3d 223, 225 (1st Cir. 1993).

In the instant case, the familiarity of the judge with

the case obviated the need for an evidentiary hearing. In

particular, we reject appellant's suggestion that he was

entitled to an evidentiary hearing so that he could introduce

documentary material "without limitation." Based on his

affidavits, appellant had assembled this material and

presented it to trial counsel prior to the change of plea

hearing in which he indicated his satisfaction with counsel's

representation. Since the district court was entitled to

accept his statements at the Rule 11 proceeding as true, it

could properly reject his claim of inadequate assistance

without further inquiry into the contents of these materials

or counsel's alleged failure to master them. We add that to

the extent these documentary materials were relevant to

appellant's claims of prosecutorial misconduct, no

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evidentiary hearing was necessary since these claims are

waived.4

Having found that the district court properly rejected

the instant petition based upon the papers filed and the

prior proceedings, we need not discuss in detail appellant's

claim that he was entitled to summary judgment in his favor.

We observe, however, that any failure by the government to

adequately respond to appellant's filings does not, as he

suggests, automatically entitle him to relief. Cf. Jaroma v.

Massey, 873 F.2d 17, 20 (1st Cir. 1989) (stating that the

district court cannot grant a motion for summary judgment

merely for lack of any response by the opposing party). In

so observing, we express no opinion on whether the

government's response was adequate or inadequate.

We have carefully considered appellant's remaining

arguments and reject them as without merit.

Affirmed.

4. For the same reasons, we think that the district
appropriately denied appellant's request to expand the record
to include these documents.

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