USCA1 Opinion
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[NOT FOR PUBLICATION]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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