Kellett v. United States

• Court: Court of Appeals for the First Circuit
• Decided: April 6, 1994
• Docket: 93-1843
• Status: Published

Opinion

USCA1 Opinion

April 6, 1994           [NOT FOR PUBLICATION]

UNITED STATES COURT OF APPEALS
                                FOR THE FIRST CIRCUIT
                                 ____________________

No. 93-1843

                               H. RAYMOND KELLETT, JR.,

                                     Petitioner,

                                          v.

                              UNITED STATES OF AMERICA,

                                     Respondent.

____________________

                     APPEAL FROM THE UNITED STATES DISTRICT COURT

                          FOR THE DISTRICT OF MASSACHUSETTS

                   [Hon. Edward F. Harrington, U.S. District Judge]
                                               ___________________

                                 ____________________

                                        Before

                                 Breyer, Chief Judge,
                                         ___________
                            Selya and Cyr, Circuit Judges.
                                           ______________

                                 ____________________

            H. Raymond Kellett, Jr. on brief pro se.
            _______________________
            A.  John Pappalardo,  United States  Attorney, Deborah  M.  Smith,
            ___________________                            __________________
        Director, New England Bank  Fraud Task Force, and Donald  C. Lockhart,
                                                          ___________________
        Trial  Attorney, New  England Bank  Fraud  Task Force,  Fraud Section,
        Criminal Division, Department of Justice, on brief for appellee.

____________________

____________________

Per Curiam.  H.  Raymond Kellett, Jr., has appealed
                      __________

            the  district court's dismissal of his habeas petition on res

            judicata grounds.   On  appeal,  the  government agrees  with

            Kellett  that  the district  court  erred  in dismissing  the

            petition.   It concurs that the doctrine of res judicata does

            not  apply in  habeas  or postconviction  proceedings.   See,
                                                                     ____

            e.g.,  Sanders v. United States, 373 U.S. 1, 8, 14-15 (1963).
            _____  _______    _____________

            The parties also explain convincingly that the  court had not

            resolved Kellett's earlier petition under 28 U.S.C.   2255 on

            the merits.  The  government argues, however, that  remand is

            not necessary  because Kellett's  petition is meritless  as a

            matter of law.   After reviewing the petition and  the record

            on appeal, we agree and therefore affirm.1

                      In his  habeas petition,  Kellett claimed  that the

            prosecutor had  concealed material exculpatory  evidence from

            him, i.e., that  senior bank officers and directors had known

            that false loan applications were being submitted to the bank

            for approval.  On  appeal, he argues  that he would not  have

            pled guilty to  the charge  of making false  statements to  a

            federally insured bank in violation of 18 U.S.C.   1014 if he

            had known of this evidence.  Kellett's argument appears to be

            that  this  evidence  was  exculpatory  because  a  necessary

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            1.  We hereby  grant the government's motion  to withdraw its
            original  appendix and  to  substitute an  appendix excluding
            Kellett's presentence report.  In determining this appeal, we
            have  considered  only   the  contents  of   the  replacement
            appendix.

element of  the crime to  which he pled  guilty was  that the

            bank have relied on the false statements when it approved the

            loans.  That  is, Kellett  says that no  crime under  section

            1014 would have been  committed if the bank was  not actually

            deceived  when it approved loans  on the basis  of false loan

            documents.   Abundant  case  law to  the contrary  undermines

            Kellett's claim.   See, e.g., United  States v. Norberg,  612
                               __________ ______________    _______

            F.2d 1, 4-5 (1st Cir. 1979) (the focus of the statute is that

            a false statement was made for the purpose of influencing the
                                                          ___________

            bank  to take  certain action;  the cases  make clear  that a

            bank's reliance  on the  false statement is  irrelevant); see
                                                                      ___

            also  United States v. Johnson,  585 F.2d 119,  125 (5th Cir.
            ____  _____________    _______

            1978)  (The statute  applies "not only  [to] a  defendant who

            intends to defraud an  unwitting insured institution but also

            [to]  a   defendant  who   intends  to  cooperate   with  the

            institution in a scheme requiring him, with the institution's

            knowledge, to  make false  statements for the  furtherance of

            the scheme.   The [institution's]  awareness of the  fraud is

            not relevant, for its existence is  not inconsistent with the

            intent   to  influence  which  a  violator  of     1014  must

            possess.").  

                      We  note  further  that,  under section  1014,  the

            critical knowledge is that possessed  by the person making or

            causing the false statement to be made.  See United States v.
                                                     ___ _____________

            Concemi,  957  F.2d 942,  951  (1st Cir.  1992)  (among other
            _______

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things, the  government must  show that the  defendant "acted

            knowingly"  in making or causing a false statement be made to

            a  federally insured  bank).   Although  Kellett suggests  on

            appeal that  the bank actually prepared  the false documents,

            by pleading guilty  he admitted  that he had  made or  caused

            false statements to be  made and that he knew  the statements

            were  false.  It is too late  for Kellett to deny the factual

            basis of  the charge  to which  he pled  guilty.  See  United
                                                              ___  ______

            States  v. Morrison, 938 F.2d  168, 171 (10th  Cir. 1991) (in
            ______     ________

            sentencing   challenge,  defendant  could  not  assert  facts

            contrary  to those  to  which  he  pled  guilty).    This  is

            especially true since the "fact"  in question is what Kellett

            himself knew about the accuracy of the statements in the loan

            documents.    Kellett must  have known  at  the time  he pled

            guilty  whether  or  not  he  knew  that  the loan  documents

            contained  falsehoods  which  would  influence  the  bank  to

            approve  the  loans,  and  the  state  of knowledge  of  bank

            officers  or  directors  had  no bearing  on  that  question.

            Therefore, any failure by the prosecutor to tell Kellett what

            those officers or  directors knew would provide no  basis for

            permitting Kellett to withdraw his guilty plea.  

                      Kellett suggests that the court  might have imposed

            a more lenient sentence than it did if it had been aware that

            senior  bank officers or directors had  known that false loan

            applications were  being submitted to the  bank for approval.

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He  claims that the court did  not sentence him with full and

            accurate  information  and  that  his   sentencing  therefore

            violated his due process  rights.2  The sentencing transcript

            shows that the court believed that higher level bank officers

            must  have  known that  false  loan  applications were  being

            submitted  to the bank.  Thus,  Kellett's suggestion that the

            court  was   unaware  of  this  fact   is  simply  incorrect.

            Moreover, the sentencing  transcript indicates that both  the

            probation  department  and  the  court took  this  and  other

            factors  into  account  by reducing  by  one  level the  base

            offense level assigned  to the loss amount in  Kellett's case

            by the  Sentencing Guidelines.   See U.S.S.G.    2F1.1(b)(1).
                                             ___

            Accordingly, we  do not  think that the  prosecutor's alleged

            failure  to disclose  evidence that  senior bank  officers or

            directors  knew  of  the  ongoing  scheme  renders  Kellett's

            sentencing constitutionally deficient.  

                      Kellett  further  claims   that  newly   discovered

            evidence  substantiates his  claim of  selective prosecution.

            As  the  government  points out,  this  court  has held  that

            selective prosecution claims are  deemed waived if not raised

            prior to trial.   See Tracey v. United States,  739 F.2d 679,
                              ___ ______    _____________

            682 (1st  Cir. 1984),  cert.  denied, 469  U.S. 1109  (1985).
                                   _____________

            Prior  to  his  trial,  Kellett sought  assurances  from  the

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            2.  We assume for argument's sake, but without deciding, that
            this claim survives dismissal on mootness grounds. 

                                         -5-

prosecutor   that   his  prosecution   was   not  politically

            motivated,  evidencing his  awareness  that he  might have  a

            selective prosecution  claim.  But  he did not  challenge his

            prosecution on that basis by way of the requisite motion.  On

            appeal, Kellett says that the prosecutor assured him that his

            prosecution  was  not  politically   motivated.    The  newly

            discovered evidence he  refers to, however, has nothing to do

            with those  assurances, but at most  supports the proposition

            that certain  mall developers, whom  he had opposed  prior to

            his  prosecution,  sought  to  ensure the  success  of  their

            project by making  political contributions.   Accordingly, we

            find the selective prosecution claim to be waived.

                      We find Kellett's remaining arguments to be without

            merit for the reasons stated in the government's brief. 

                      Affirmed.
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