Any v. United States

• Court: Court of Appeals for the First Circuit
• Decided: March 2, 1995
• Docket: 93-2281
• Status: Published

Opinion

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                                [NOT FOR PUBLICATION]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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                                          5



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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                                          6



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.  

                                         -9-
                                          9



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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                                          10



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.

                                         -11-
                                          11



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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                                          12



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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