Trainor v. USA 0 7-CV-352-JD 07/24/08
UNITED STATES DISTRICT COURT DISTRICT OF NEW HAMPSHIRE
William P. Trainor
v. Civil No. 07-cv-352-JD Opinion No. 2008 DNH 128
United States of America
O R D E R
William Trainor, proceeding pro se, has moved under 28
U.S.C. § 2255 for collateral relief from his convictions and
sentence in this court for conspiracy to commit wire fraud under
18 U.S.C. § 373 and multiple counts of wire fraud under 18 U.S.C.
§ 1843. The convictions, which arose out of Trainer's fraudulent
dealings in two pieces of real estate in Lebanon, Maine, were
upheld on appeal. See United States v. Trainor. 477 F.3d 24 (1st
Cir. 2007). For the foregoing reasons, the court denies
Trainer's motion without an evidentiary hearing.
Background
The facts adduced at Trainer's trial are set forth in
detail in the opinion by the court of appeals, 477 F.3d at 27-30,
and therefore will be repeated here only as necessary to resolve
Trainer's present claims. Trainor and two co-defendants, John DesMarais and Donald Smith, were indicted for fraudulently
obtaining two loans, one to finance DesMarais's purchase of a
parcel held by Trainer's wife, at 12 Trainor Road, and the other
to finance the construction of a house on a parcel transferred to
Smith by Trainor, at 16 Trainor Road. All three men were
charged, in one count, with an overarching conspiracy to defraud;
Trainor and DesMarais were charged with three counts of wire
fraud for their role in obtaining the loan on 12 Trainor Road;
and all three men were charged with four counts of wire fraud for
their role in obtaining the loan on 16 Trainor Road.1 DesMarais
and Smith each pled guilty to one of the wire fraud counts before
trial, where they testified against Trainor. At trial, Trainor
was represented by two experienced criminal defense attorneys who
had been appointed by the court.
Trainer's collateral attack on his convictions focuses
largely on those for wire fraud arising out of his dealings in 16
Trainor Road.2 Before securing the construction loan on that
1Two of these counts, numbered seven and eight in the indictment, were dismissed at the close of the government's case at trial due to insufficient evidence to sustain a conviction. See Fed. R. Grim. P. 29(a).
2In one of his allegations of perjury, Trainor claims that Leslie Ogden, who served as the title company's closing attorney on the mortgage loan for 12 Trainor Road, testified falsely "that she never looked at the $75,000 check presented by" Trainor at the closing as part of DesMarais's down payment on the property.
2 parcel, Trainor had arranged for its transfer to a Las Vegas
attorney, James Lee, for what he described as the purpose of
settling a debt Lee was owed by one of his clients, Robert Jones,
who was in turn owed money by Trainor. Jones, who was called as
a witness for the defense, confirmed this understanding,
testifying that he had approached Trainor for help with the debt
to Lee because Trainor "had come to owe [Jones] quite a little
bit of money over the years," about several million dollars.
But Jones was not asked about the circumstances giving rise
to Trainer's debt to him due to defense counsel's concern, shared
by the court, that doing so would open the door to evidence of
Trainer's prior bad acts. These included Trainer's inducing
Jones to invest in a company controlled in part by Trainor,
diverting those monies to his own personal benefit, then failing
to pay tax on that income--all of which Trainor admitted to doing
when he pled guilty to tax evasion in another case after being
convicted in this one. See Plea Agreement, United States v.
The truth, Trainor says, is that Ogden herself asked him "if he had a check on his person" after he had explained that DesMarais had been unable to obtain all of the money needed for the down payment, and that the lender's representative gave his assent. Trainor provides no support at all for this version of events. Indeed, the only evidence he does reference, Ogden's statement to federal investigators, is consistent with her trial testimony.
3 Trainor, No. 01-6215-CR (S.D. Fla. Apr. 14, 2005).3 Lee did
testify, on cross-examination by defense counsel, that he did not
believe that Trainor, who owed Jones "in excess of seven million
dollars," would be realizing any profit from the transfer of 16
Trainor Road, "particularly because of the way that Mr. Trainor
had got the seven million dollars."4 But Lee was never asked to
elaborate on this comment, and it was not brought up again,
either in the testimony of any other witness or counsel's
arguments to the jury.
To effect the transfer of 16 Trainor Road to Lee, Trainor
prepared a warranty deed conveying the property from his son, the
record owner, to Lee's law practice in fee simple. After a title
company in Portsmouth, New Hampshire, placed this instrument on
file with the registry of deeds, the company sent Trainor a fax
3Trainor subsequently moved to vacate this conviction, but the motion was denied by the district court, which also denied him a certificate of appealability. The Court of Appeals for the Eleventh Circuit followed suit; the Supreme Court then denied Trainer's petition for a writ of certiorari.
4Lee and Jones testified as to different understandings of the fate of any proceeds from the eventual sale of 16 Trainor Road. Lee, referencing an undated letter agreement with Jones, understood that the two of them would split those profits, with Lee's portion going to a retainer to fund Jones's future legal fees. But Jones, referencing an e-mail he said he sent to Trainor with Lee's assent, understood that Jones and Trainor would split the profits. Both the letter and the e-mail were put in evidence.
4 notifying him that this had occurred. This transmission was the
basis of count five of the indictment, one of the wire fraud
charges on which Trainor was convicted.
Trainor subsequently prepared a "Lien Certificate," which he
alone signed in his purported capacity as "agent for the
parties," attesting to "funding conditions" on the transfer of
the property to Lee, including a payment to Donald Walden, whom
would later be falsely portrayed as the source of financing for
Smith's purchase of 16 Trainor Road. Lee testified that he did
not learn of either the "Lien Certificate" or the alleged
obligations it referenced until some time after taking title to
16 Trainor Road, when the certificate was discovered on file in
the registry amid Lee's attempts to sell the property.
By that time, Trainor had prepared another document entitled
"Release of Lien" that recited the same "funding obligations" as
the "Lien Certificate," adding that because they "were not paid
in accordance with the agreement between the parties . . . the
deed is rescinded in accordance with the agreement between the
parties and deeded back to" Trainer's son. Trainor also prepared
another deed conveying the property from Lee's practice back to
Trainer's son, signed by Trainor, again, in his purported
capacity as Lee's agent. Lee testified that he had not seen
these documents until after he became embroiled in a dispute with
5 Smith over title to the property, that Trainor had never notified
Lee that the deed was being rescinded due to unpaid obligations,
and that Lee had never authorized Trainor to act as his agent.
Contemporaneously with his preparation of the "Release of
Lien" and deed from Lee's office to Trainer's son, Trainor also
prepared a purchase and sale agreement and deed transferring 16
Trainor Road to Smith. At Trainer's suggestion, DesMarais, who
had fallen behind on his mortgage payments on 12 Trainor Road,
approached Smith, a builder, with a plan to develop 16 Trainor
Road. The particulars of the deal changed over time, but
eventually it was agreed that Smith, having bought the property,
would finance the construction of a custom home there via a bank
loan obtained with Trainer's help, and that DesMarais would
receive a $10,000 finder's fee out of the loan proceeds. Smith
testified that someone he knew only as "Carol," who was the
girlfriend of Smith's friend Bill Ewell, also planned to invest
$20,000 in the development of the property at some point, but
backed out; Trainor said she would be repaid.
On its face, the purchase and sale agreement obligated Smith
to pay $250,000, with $50,000 down, but he and Trainor had agreed
beforehand that the price was actually only $130,000, with
nothing down--Smith was to give Trainor $20,000, but it would be
refunded once Trainor obtained a loan secured by the parcel.
6 Trainor also granted Walden a $200,000 mortgage on the parcel as
"security" for his investment in one of Trainer's businesses,
accompanied by a promissory note in that amount from Smith to
Walden, though Smith testified that he never expected to make any
payments on note because it "would be taken care of" once he
obtained financing for the property. These documents allowed
Smith to seek a $400,000 construction loan from a bank, with half
the proceeds going to repay Walden's "mortgage" and the other
half going to build a house on the parcel.
But the bank would not make the loan unless Smith paid the
full $50,000 down payment on the parcel due under the purchase
and sale agreement. So, to make up for the $30,000 shortfall,
Trainor suggested that Smith sell an easement in the property to
DesMarais, who owned the nearby 12 Trainor Road lot. DesMarais
testified, however, that he never signed the memorandum, later
submitted to the bank, evincing his agreement to buy the easement
and that, in fact, the memorandum misspelled his name. And Smith
testified that he had no expectation of receiving $30,000 from
DesMarais for the easement. The bank, none the wiser as to this
and other unfavorable aspects of the deal from its perspective,
including the actual purchase price and the nature of Walden's
mortgage, agreed to make the construction loan as requested.
7 During the processing of the loan, the registry of deeds in
Maine faxed a copy of Smith's deed for 16 Trainor Road, along
with other documents, to the same title company in Portsmouth
that had handled the transfer of the property to Lee (who, again,
remained very much unaware that his land had been transferred to
and was being encumbered by someone else). This transmission was
the basis of count six of the indictment, another of the wire
fraud charges on which Trainor was convicted. At Trainer's
direction, Walden told the bank how to distribute the $200,000
purportedly due under his mortgage, including five separate
checks to Trainor totaling $91,700, with the balance going to
Walden. Smith testified that Trainor gave him one of these
checks, for $20,000, to refund the down payment on the property,
as agreed. Trainor now claims that this money was actually
intended to reimburse "Carol" for her $20,000 initial investment,
but Smith flatly denied that when asked about it at trial.5
5Trainor claims this testimony was false in light of a "partnership agreement." This agreement, however, merely purports to assign the "right" to purchase 16 Trainor Road from the partnership to Smith, while reserving the partnership's right to "profits generated from the sale of the residence to be constructed there." It is not a "partnership agreement" in that it does not set forth the respective rights and duties of the partners or, indeed, even identify them. Moreover, it does not so much as mention "Carol," let alone reflect any right she had to the proceeds of the construction loan. Shortly after the construction loan closed. Smith was
contacted by Lee, who claimed to be the rightful owner of the 16
Trainor Road property. Lee also confronted his client, Jones,
about the transfer of the parcel, leading Jones to call Trainor
for an explanation. According to Jones, Trainor explained that
he re-transferred the property because of outstanding taxes--not
because, as Trainor now suggests, he did not in fact owe Jones
any money. Defense counsel focused on the claimed non-payment of
taxes in his cross-examination of Lee, getting him to admit that
he was unaware of any real estate transfer tax on the transaction
and that he did not know whether the other real estate taxes on
the parcel had been paid.
Lee also testified to a phone call from Trainor in which he
acknowledged that Lee was upset about the unauthorized transfer
of the property and offered to attempt to resolve the matter.
During this call, Trainor defended his actions by pointing out
that he had never actually signed Lee's name to anything, but,
significantly, did not say that he was entitled to re-transfer
the property back to his son because the debt underlying the
original transfer was invalid. Indeed, according to Lee's
account, Trainor did not dispute the underlying debt at all. The
call ended when Trainor hung up after Lee accused him of fraud.
Lee's next call was to the authorities.
9 Standard of Review
Under 28 U.S.C. § 2255, a prisoner serving a sentence
imposed by a federal court who is
claiming the right to be released upon the ground that the sentence was imposed in violation of the laws of the Constitution or laws of the United States, or that the court was without jurisdiction to impose such sentence, or that the sentence was in excess of the maximum authorized by law, or is otherwise subject to collateral attack, may move the court which imposed the sentence to vacate, set aside or correct the sentence.
"A petitioner who invokes section 2255 is not entitled to an
evidentiary hearing as a matter of right." David v. United
States, 134 F.3d 470, 477 (1st Cir. 1998). In particular, no
hearing is necessary when the petitioner's allegations state
conclusions instead of facts, contradict the record, are
inherently incredible, or do not entitle him to relief even if
they are true. Owens v. United States. 483 F.3d 48, 57 (1st Cir.
2007). As fully explained infra, because Trainer's claims fit
this description, his motion is denied without a hearing.
Discussion
Trainor claims that: (1) the government failed to prove
counts five and six, (2) certain government witnesses perjured
themselves at trial, (3) the court erred in imposing restitution
10 as part of his sentence, and (4) he received ineffective
assistance of counsel in preparing for and conducting his defense
at trial. In response, the government argues that Trainor cannot
raise any of these claims but ineffective assistance in this
collateral proceeding because he failed to raise them on direct
review and, furthermore, that Trainor cannot challenge the
restitution order under § 2255. The government also argues that
all of the claims, including those based on ineffective
assistance of counsel, are without merit. The court will
consider the government's procedural arguments first.
I. Procedural Default and Other Limitations on S 2255
Because a petitioner challenging restitution obligations
imposed as part of a sentence is not '■'claiming the right to be
released," the First Circuit has held that § 2255 does not
authorize collateral attacks on restitution orders. Smullen v.
United States. 94 F.3d 20, 25-26 (1st Cir. 1996); see also, e.g..
Kaminski v. United States. 339 F.3d 84, 85 (2d Cir. 2003);
Barnickel v. United States. 113 F.3d 704, 706 (7th Cir. 1997).
So Trainor cannot challenge the restitution order here.6 That
6Given this limitation, the circuit has recognized that a restitution order can be collaterally attacked by a petition for writ of error coram nobis. United States v. Barrett. 178 F.3d 34, 56 n.20 (1st Cir. 1999). To obtain this extraordinary form
11 claim can therefore be dismissed without the need for an
evidentiary hearing. See Hager, 993 F.2d at 5.
Section 2255 also "is not a substitute for a direct appeal"
from the sentence or the conviction supporting it. Knight v.
United States. 37 F.3d 769, 772 (1st Cir. 1994). So a court
generally cannot entertain, under § 2255, challenges to a
conviction or sentence that were not raised on direct appeal
unless the petitioner shows both "cause" for failing to do and
"prejudice" as a result, or that he is actually innocent. Owens
v. United States. 483 F.3d 48, 56-57 & n.6 (1st Cir. 2007). This
rule is known as "procedural default." Id. An exception to the
rule, however, is a claim of ineffective assistance of counsel,
which normally cannot be raised on direct appeal and must
therefore await review on a collateral attack under § 2255.
Massaro v. United States. 538 U.S. 500, 504 (2003).
The government argues that, by failing to raise any of his
present claims for relief in his direct appeal from his
convictions, Trainor has procedurally defaulted all of them
of relief, however, a petitioner must explain, among other things, why he did not exploit other avenues of attack, including direct appeal. Hager v. United States. 993 F.2d 4, 5 (1st Cir. 1993). Trainor has made no attempt to do so. See infra. It should also be noted that, in entering into a plea agreement to resolve the charges against him in the Southern District of Florida, Trainor waived his right to appeal his sentence in this case as well as that one.
12 except insofar as they allege ineffective assistance of counsel.
To receive collateral review of these claims, then, Trainor bears
the burden of excusing his procedural default, by showing, as
just mentioned, either cause and prejudice or actual innocence.
See Derman v. United States. 298 F.3d 34, 45 (1st Cir. 2002) .
Trainor does not attempt to show cause for the omission of
these claims from his direct appeal, and none is apparent from
the record.7 Indeed, while constitutionally ineffective
assistance of counsel in failing to raise a claim can constitute
cause, see Murray v. Carrier. 477 U.S. 478, 488 (1986), Trainer's
several complaints of omissions by his trial attorneys do not
extend to any of the defaulted claims, and he has made no
allegation at all of ineffective assistance by appellate counsel.
Trainor has also failed to show prejudice from his failure
to raise these claims earlier, because they are without merit:
(1) Trainer's claim that the government failed to adduce
sufficient evidence of counts five and six depends entirely on
his view that the transmissions in question were alleged to have
7There is no indication, for example, that the testimony came to appear false only in light of evidence acquired since trial; to the contrary, Trainor argues that the witnesses committed perjury based on purported inconsistencies between their testimony and other evidence received at trial. There could be no cause, then, for failing to raise the claim earlier. See Magee v. Harshbarqer. 16 F.3d 469, 472 (1st Cir. 1994).
13 come from (count five) or gone to (count six) a title company in
Stratham, New Hampshire, while the evidence at trial showed that
the title company was actually located in nearby Portsmouth.
This view is mistaken. Leaving aside how a variance on such a
minor detail could possibly have prejudiced Trainer's defense,
see United States v. Escobar-de Jesus. 187 F.3d 148, 172 (1st
Cir. 1999) (finding no prejudicial variance between charge that
offense occurred in Guayama, Puerto Rico, and proof that it
occurred in Guanica, Puerto Rico), there was no variance anyway.
Before trial, the government successfully moved to strike from
the indictment, as surplusage, the designation of Stratham as the
place of the title company in counts five and six.8 So, by the
time the case went to trial, the government was alleging that the
title company was located simply in New Hampshire, rather than in
any particular municipality. Trainor does not otherwise contest
the sufficiency of the government's proof on counts five and six.
(2) Trainor claims perjury by three government witnesses:
Lee, Smith, and Leslie Ogden, an attorney who handled the loan
closing on 12 Trainor Road for the title company. But, as
discussed supra notes 2 and 4, Trainor has come forward with
8Based on the same incorrect view of these charges, Trainor argues his "actual innocence" of them. Insofar as this argument is offered to excuse the procedural default of Trainer's claims, then, it likewise cannot prevail.
14 nothing to show that the challenged aspects of Smith's or Ogden's
testimony were false. So these allegations "fall far short of
showing that the witnesses in question perjured themselves, much
less that the government knowingly allowed them to do so."
United States v. Casas. 425 F.3d 23, 45 (1st Cir. 2005). And,
while Lee's testimony differed from Jones's on one point, supra
note 3, such a conflict in the evidence is a matter for the jury,
not a constitutional violation arising from the knowing use of
perjury to convict. See id.
Because Trainor has failed to excuse the procedural default
of his challenges to the sufficiency of the government's evidence
on counts five and six or the testimony of certain witnesses,
those claims can be dismissed without an evidentiary hearing.
See Porcaro v. United States. 784 F.2d 38, 43 (1st Cir. 1984) .
II. Ineffective Assistance of Counsel
Trainor claims that his attorneys made a number of errors of
constitutional magnitude in preparing for his defense, and
defending him, at trial. These claims fall into roughly seven
categories: (A) failure to challenge the underlying debt from
Trainor to Jones that served as the basis of the transfer of 16
Trainor Road to Lee; (B) failure to explore agency theories that
would have, in Trainer's view, cast these dealings in a less
15 culpable light; (C) failure to challenge what Trainor sees as
Lee's implication of other bad acts to him; (D) failure to use a
professional investigator before trial; (E) failure to challenge
the government's theory that Trainer's crimes were motivated by
greed; (F) failure to challenge a number of the allegations in
the indictment; and (G) failure to challenge purported
deficiencies in the indictment.
To prevail on a claim of ineffective assistance, a
petitioner must show both that counsel's "representation fell
below an objective standard of reasonableness" and "a reasonable
probability that, but for counsel's unprofessional errors, the
result of the proceeding would have been different." Strickland
v. Washington. 466 U.S. 668, 687-94 (1984). None of Trainer's
ineffective assistance claims satisfies either of these criteria.
(A) Trainor argues that his trial counsel should have, by
examining Lee and Jones and calling a number of other witnesses,
challenged the debt from Trainor to Jones that, Lee and Jones
testified, served as the basis of the transfer of 16 Trainor Road
to Lee's law practice. As discussed supra, however, defense
counsel steered clear of this subject for fear of opening the
door to an unflattering version of how the debt arose, namely.
16 that Trainor had misappropriated Jones's investments.9 As also
discussed supra. Trainor himself never questioned the validity of
the debt when he was confronted by Lee and Jones for transferring
the property back, but instead attempted to justify his actions
by suggesting that Lee had failed to pay real estate taxes.
In examining Lee and Jones, then, defense counsel chose to
explore that theory, rather than the substantially more
problematic one that Trainor did not owe Jones any money. This
was a reasonable tactical decision--indeed, counsel was able to
get Lee to admit that he did not know whether the taxes had in
fact been paid--not ineffective assistance. See Horton v. Allen.
370 F.3d 75, 86-87 (1st Cir. 2004) (ruling that defense counsel
had not been ineffective in not calling alibi witnesses whose
testimony would have conflicted with defendant's own version of
events); Lema v. United States. 987 F.2d 48, 54 (1st Cir. 1993)
9Trainor claims that the testimony and witnesses overlooked by his lawyers would have demonstrated otherwise, even that it was Jones, not Trainor, who had done the misappropriating. But the proffered evidence--which consists largely of Trainer's representations "on information and belief" as to what various witnesses would say on aspects of his business dealings with Jones, accompanied by various documents the significance of which is not readily apparent--does not call Trainer's malfeasance in those dealings into serious doubt. Aside from the largely unverified nature of this material, Trainor admitted to misappropriating Jones's investments in pleading guilty to tax evasion in another case and, in any event. Trainer's claim that Jones was the wrongdoer was contrary to the explanations he and Lee received from Trainor for re-transferring the parcel.
17 (ruling that defense counsel had not been ineffective in not
calling witnesses who would offer both exculpatory and
inculpatory testimony).
Furthermore, assuming that the proffered testimony could
have clouded the issue of whether Trainor owed money to Jones,
but see note 8, infra, Trainor does not explain how the
government's case of wire fraud arising out of the transfers of
16 Trainor Road to and from Lee would have suffered as a result.
The record still would have shown that Trainor transferred the
parcel from Lee by falsely claiming to be his agent, and without
any notice whatsoever to Lee or Jones as to what was happening,
which is sufficient to prove the "scheme to defraud" essential to
a wire fraud conviction. See, e.g.. United States v. Pimental,
380 F.3d 575, 585 (1st Cir. 2004) ("In order to find a 'scheme to
defraud,' the jury simply had to determine that [the defendant]
was attempting to wrong one in his property rights by dishonest
methods or schemes.") (internal quotation marks and bracketing
omitted). Accordingly, Trainor has failed to show a reasonable
probability that, but for his counsel's alleged errors in failing
to introduce the testimony in question, the jury would have found
differently on that charge.10 See Horton, 370 F.3d at 87
10The same is true of Trainer's analogous claim that counsel erred by failing to call Bill Ewell to testify as to Carol's
18 (rejecting ineffective assistance claim where counsel's failure
to produce witnesses would not have influenced outcome).
(B) Belatedly, Trainor faults trial counsel for not putting
in evidence to support an "apparent authority" theory,
particularly the testimony of Lee's wife and office manager,
Kelly. On this theory, as Trainor sees it, he legitimately acted
as the "apparent agent" of Lee's law practice in "rescinding" the
transfer of 16 Trainor Road.11 The doctrine of apparent
authority, however, binds a principal to third parties for the
actions of an agent in accordance with the principal's
manifestations to those third parties. Restatement (Second) of
Agency § 8 (1958); it does not bind a principal to the actions of
a third party who, by claiming to act as an agent without any
investment in the development of 16 Trainor Road. At most, the proffered testimony would have contradicted Smith's story that the $20,000 in loan proceeds directed to him was intended as a return of his deposit; it would not have undermined the government's case that Trainor procured the loan as part of a fraudulent scheme to enrich himself. In any event, Trainor offers nothing beyond speculation that supports his version of how Ewell would have testified, see note 5, supra.
11Trainor does not claim that Kelly Lee would have contradicted her husband's testimony that he had not authorized Trainor to act as his agent; instead, he speculates that her testimony as to her own authorization to handle certain aspects of the paperwork for 16 Trainor Road-which, it should be noted, never included signing any documents as "agent for the parties," like Trainor did-would have somehow supported the notion that Trainor had similar authorization.
19 authorization at all from the principal, self-deals in his
property, as the evidence showed Trainor had done by transferring
16 Trainor Road to his son from Lee's law office based on
documents Trainor signed in his purported capacity as "agent for
the parties." See id. § 201A, cmt. b (noting that an agent who
holds title to the principal's property in that capacity cannot
effectively transfer it to a third party who has knowledge of the
agency relationship).
Trainor further complains that his trial counsel should have
developed the theory that Lee was acting as the agent to Jones,
"an undisclosed principal," in the 16 Trainor Road transaction in
order to evade judicial oversight that a Nevada court had imposed
over Jones's assets. But, as the government points out, this
theory provides Trainor with no legitimate reason for re
transferring the parcel from Lee without his knowledge.12
Because Trainer's "agency" theories are so far off the mark,
counsel could neither have acted unreasonably nor hurt Trainer's
defense by not raising them. See, e.g.. Veiux v. Pepe, 184 F.3d
12Trainor seems to suggest that, because, on this theory, the purpose of the transaction was to defraud a court, he was somehow justified in undoing the deal afterwards. Like a number of Trainer's other attempts to explain his actions, however, this theory--assuming it has even the slightest merit--conflicts with the contemporaneous explanations Trainor gave to Lee and Jones, and implicates Trainor in another fraudulent scheme. Counsel cannot possibly be criticized for staying away from it.
20 59, 64 (1st Cir. 2001) ("failing to pursue a futile tactic does
not amount to constitutional ineffectiveness").
(C) Trainor argues that counsel erred by failing to
challenge testimony that he sees as having implicated other bad
acts to him: Lee's statement that he did not believe Trainor
would receive any profit from their 16 Trainor Road deal,
"particularly because of the way that Mr. Trainor had got the
seven million dollars" from Jones. Insofar as Trainor suggests
his counsel should have explored that subject further with Lee,
that claim has already been rejected. See Part II.A, supra.
Insofar as Trainor suggests his counsel should have moved
the court to strike or to order the jury to disregard the
testimony, it is common for defense attorneys to eschew such
measures for fear that they serve only to call undue attention to
potentially harmful testimony. See, e.g.. United States v. Diaz.
494 F.3d 221, 224-25 & n .3 (1st Cir. 2007); United States v.
DesMarais. 938 F.2d 347, 350 (1st Cir. 1991). This is a
particularly sound strategy where, as here, the testimony is
limited to only the most isolated and indirect reference to
prejudicial matter. For this reason, in fact, even if counsel
could be said to have been ineffective in failing to object to
the testimony, that error could not possibly have hurt Trainor.
See, e.g.. Diaz. 494 F.3d at 227 (upholding denial of mistrial
21 motion based on prosecution witness's isolated statement that
defendant had entered the United States illegally).
(D) Trainor complains that, instead of taking advantage of
this court's authorization of investigative services on his
behalf to hire a professional investigator, his trial attorneys
used that authorization to cover the expenses of conducting the
investigation themselves. As a result, Trainor alleges, the
investigation failed to turn up exculpatory evidence, but he
provides no details as to what that evidence might have been or,
for that matter, how a professional investigator would have found
it when counsel did not.13 Trainer's claim that counsel rendered
ineffective assistance by entrusting the pre-trial investigation
to themselves is without merit. See, e.g.. Lema. 987 F.2d at 55
(ruling that counsel had not been ineffective in failing to
interview potential witnesses whose testimony would not have
aided and might have hurt the defendant's case).
(E) Trainor also faults his lawyers for failing to
challenge the government's theory that greed had motivated his
crimes, arguing that they should have introduced evidence of what
he portrays as various humanitarian efforts on his part. Because
13Insofar as Trainor suggests that the evidence consists of the testimony and documents he faults counsel for not using to challenge the debt to Jones, that claim fails for the reasons articulated in Part II.A, supra.
22 these efforts have no apparent connection to the transactions at
issue in Trainer's case, however, this evidence could have been
received, if at all, only as character evidence, i.e., to show
that Trainor is not generally a greedy person. Opening the door
to evidence of Trainer's character would have been disastrous,
given his highly checkered past. Trainor has been previously
convicted on multiple occasions, including for crimes of
dishonesty. Indeed, even one of the documents that Trainor
argues should have been introduced, a 1996 letter from the
administrator of a charity, makes reference to the fact that
Trainor "is about to stand trial" on unrelated charges and
alludes to other misconduct by him against the charity itself.
Counsel's judgment in steering clear of the entire issue of
Trainer's character cannot be questioned; the introduction of
that subject at trial would have done far more harm than good.
(F) Trainor also accuses trial counsel of failing to
challenge a number of the allegations in the indictment,
particularly those alleging overt acts in furtherance of the
conspiracy. Yet much of Trainer's argument in support of this
claim simply disputes the government's evidence of these
allegations, rather than identifying what trial counsel failed to
do to contest them. Because the sufficiency of the government's
conspiracy case has already been upheld on Trainer's direct
23 appeal from his conviction, however, the issue cannot be
relitigated through a § 2255 motion, see Murchu v. United States,
926 F.2d 50, 55 (1st Cir. 1991), despite Trainer's attempt to
recharacterize the issue as ineffective assistance of counsel,
see Tracey v. United States. 739 F.2d 679, 682 (1st Cir. 1984).
Insofar as Trainor identifies particular evidence he says should
have been introduced to rebut the government's allegations, that
evidence--or, more accurately. Trainer's representations as to
what that evidence would be--has already been discussed in the
context of Trainer's other claims. This ineffective assistance
of counsel theory has no merit.
(G) Finally, Trainor claims that counsel failed to
challenge what he calls "flaws in the indictment" that prejudiced
his defense, particularly the alleged "failure to particularize"
the nature of the illegal conduct underlying the wire fraud
counts.14 The indictment, however, describes the actions of
14Trainor also asserts, without explanation, that the "flaws" in the indictment amounted to a violation of his Fourth, Fifth, and Sixth Amendment rights. It is difficult to understand how the substance of an indictment can violate any rights of the accused under the Fourth Amendment, which guarantees against unreasonable searches and seizures, or the Sixth Amendment, which guarantees a speedy and public trial by an impartial jury, the confrontation of adverse witnesses, compulsory process, and counsel. And, while some of the protections of the Fifth Amendment do extend to indictments--requiring them for felonies, preventing double jeopardy, and ensuring due process--Trainor does not hint at how the indictment may have violated any of
24 Trainor and his co-defendants in substantial detail in setting
forth the conspiracy count, then simply realleges and
reincorporates those allegations in each of the wire fraud
counts. This is a common method of pleading both civil and
criminal cases. It does not run afoul of the constitutional
requirements for an indictment. See Hamlinq v. United States, .
418 U.S. 87, 117 (1974). Counsel was correct not to challenge
the indictment on this basis (though, it should be noted, they
did challenge it on others, albeit unsuccessfully).
Conclusion
For the foregoing reasons. Trainer's motion to vacate
(document no. 1) is DENIED. Trainor received the able assistance
of counsel throughout the trial and pre-trial processes in this
court. The clerk shall enter judgment accordingly and close the
case .
SO ORDERED.
IJoseph A. DiClerico, JrY United States District Judge
July 24, 2008
cc: Jack B. Patrick, Esquire William P. Trainor, pro se
these guarantees, save for his claim that it failed to allege his illegal conduct with the requisite specificity.