United States Court of Appeals For the First Circuit
No. 22-1518
UNITED STATES,
Appellee,
v.
ELIJAH MAJAK BUOI,
Defendant, Appellant.
APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MASSACHUSETTS
[Hon. F. Dennis Saylor, IV, U.S. District Judge]
Before
Gelpí, Lynch, and Thompson, Circuit Judges.
Scott T. Garosshen, with whom Seth B. Orkand, Mallori D. Thompson, and Robinson & Cole, LLP were on brief, for appellant. Javier A. Sinha, Attorney, U.S. Department of Justice, with whom Rachael S. Rollins, United States Attorney, Donald Lockhart, Assistant United States Attorney, Mackenzie Queenin, Assistant United States Attorney, Della Sentilles, Trial Attorney, U.S. Department of Justice, Kenneth A. Polite, Jr., Assistant Attorney General, and Lisa H. Miller, Deputy Assistant Attorney General were on brief, for appellee.
October 13, 2023 GELPÍ, Circuit Judge. Defendant-Appellant Elijah Majak
Buoi ("Buoi") applied for multiple Paycheck Protection Program
("PPP") loans for his startup company, Sosuda Tech LLC ("Sosuda"),
at the beginning of the COVID-19 pandemic. The Government
investigated and charged Buoi for devising a scheme to defraud and
obtain PPP funds by filing fraudulent PPP loan applications, and
he was ultimately indicted on four counts of wire fraud, in
violation of 18 U.S.C. § 1343, and one count of making false
statements to a financial institution, in violation of 18 U.S.C.
§ 1014. At trial, Buoi moved for judgment of acquittal at the
close of the Government's case on the grounds that the Government
provided insufficient evidence to prove beyond a reasonable doubt
that he intended to defraud or influence a financial institution.
The district court denied the motion. Buoi renewed the motion at
the close of his case, resulting in another denial. Buoi was
subsequently convicted on all five counts. Boui appeals the
conviction, challenging the sufficiency of the evidence presented
as to intent, in addition to two ineffective assistance of counsel
claims. We affirm the district court and dismiss Buoi's
ineffective assistance of counsel claims without prejudice. See
United States v. Mala, 7 F.3d 1058, 1063 (1st Cir. 1993).
- 2 - I. Background
A. Facts
The facts that follow are derived from the testimony and
exhibits presented at trial. Because there is a claim of
insufficient evidence, "we recount the facts in the light most
favorable to the verdict." United States v. Paz-Alvarez, 799 F.3d
12, 18 (1st Cir. 2015).
Buoi registered his company, Sosuda, with the
Massachusetts Secretary of State on May 1, 2019, about a year
before the COVID-19 pandemic.1 Sosuda was a technology company
designed to serve communities with limited technological
resources. Buoi, on behalf of Sosuda, did not file tax returns
for 2019 or 2020, and the company was not registered with the
Massachusetts Department of Unemployment Assistance ("DUA"),
meaning that it was not paying unemployment taxes. Sosuda did not
have employees in 2019 or 2020.
In March 2020, COVID-19 was declared a pandemic.
Congress responded by passing the Coronavirus Aid, Relief, and
Economic Security ("CARES") Act, 15 U.S.C. §§ 9001-9141, to aid
Americans negatively impacted by the COVID-19 pandemic. As a part
of the act, the PPP was initiated to provide small businesses with
financial assistance to keep their employees on the payroll and to
1 Sosudawas originally registered as "South Sudanese American Technologies, LLC," but was renamed "Sosuda" on May 15, 2019.
- 3 - cover specified expenses. CARES Act, ch. 116, 134 Stat. 286,
286-94 (2020) (codified as amended at 15 U.S.C. § 636(a)(36)).
Under the program, PPP loans were issued by private lenders but
were guaranteed by the Small Business Administration ("SBA") in
the event that a borrower defaulted.
To obtain a PPP loan, a business was required to submit
an application certifying the business's average monthly payroll
expenses for the prior year, the number of employees, and whether
the United States was the principal place of residence for all
employees on the payroll. If the business did not have prior
payroll expenses or existing employees, the business did not
qualify for a PPP loan. By signing the application, the business's
authorized representative certified that any loan funds "[would]
be used to maintain workers and maintain payroll or make mortgage
interest payments, lease payments, and utility payments" and that
they "unders[tood] that if the funds [were] knowingly used for
unauthorized purposes, the federal government [could] hold [them]
legally liable, such as for charges of fraud." The applicant must
have further certified that the information provided was "true and
accurate" and that "making a false statement to obtain [the loan]
[wa]s punishable under the law."
Additional documents that were often filed with the PPP
application included the IRS Form 940 and IRS Form 941. An IRS
Form 940 is an annual tax return document filed by a company
- 4 - pursuant to the Federal Unemployment Tax Act, showing the total
compensation paid to its employees. An IRS Form 941 is a quarterly
tax return document filed to report Social Security taxes, income
taxes, and Medicare taxes withheld from employee paychecks.
On April 21, 2020, Buoi attended a virtual PPP loan
seminar and, according to his handwritten notes, the PPP was
created to "help[] business[es] keep their workforce employed
during the Coronavirus COVID-19 crisis" and "to provide a direct
incentive for small businesses to help to keep their workers on
the payroll." Between April 2020 and June 2020, Buoi applied for
six different PPP loans with four lenders. There were multiple
inconsistencies in the loan applications and documentation
submitted by Buoi, taken in turn below.
Bank of America PPP Loan Applications
Buoi submitted a PPP loan application to Bank of America
("BOA") on April 21, 2020, seeking $9,400,000, claiming Sosuda had
353 employees, an average monthly payroll of $3,000,000, and
certifying the United States as the principal place of residence
for his employees. Buoi also submitted Excel sheets as payroll
documentation, justifying the $3,000,000 in payroll based on the
expenses for the last seven months of 2019 and for two weeks in
February 2020. BOA did not credit these Excel sheets, so tax forms
were requested. Buoi told the BOA employee that he had very little
payroll in 2019 and did not file 2019 taxes. The BOA employee
- 5 - told Buoi that these forms were required for the loan process to
continue. After this communication, Buoi submitted an IRS Form
941 with what he claims are projections, stating that Sosuda had
353 employees and paid $9,498,987 in wages, tips, and other
compensation during that period. This form was backdated to
April 30, 2020. In addition, Buoi submitted an IRS Form 940
stating Sosuda made $34,800,000 in payments to employees in 2019
and had no employees in any other state but Massachusetts. This
form was backdated to January 31, 2020. BOA denied the PPP loan
application.
Buoi submitted a second PPP loan application to BOA on
May 29, 2020, claiming 95 employees and $800,000 monthly payroll.
The IRS Form 941 submitted with this application claimed 96
employees with $2,400,000 in wages, and the IRS Form 940 submitted
claimed $9,600,000 paid to employees. BOA denied this loan
application as well.
Lendio PPP Loan Applications
Buoi applied to Lendio for a PPP loan on May 21, 2020,
seeking $1,900,000. Buoi claimed that he had 18 employees and an
average monthly payroll of $150,000. Buoi certified in this
application that Sosuda's employees' principal place of residence
was the United States, Sosuda in fact had employees, the funds
would be used to retain workers, and all of the information
provided was true and accurate. The IRS Form 940 Buoi submitted
- 6 - with this application stated that Sosuda paid its employees
$1,800,000, and the IRS Form 941 stated Sosuda had 18 employees in
the first quarter of 2020 and paid them $450,000. Both forms were
backdated, as they were in the BOA application. Buoi also provided
Excel sheet payroll documents, like the ones included in his BOA
application, covering the same time period, albeit with different
numbers. Lendio denied this application.
Buoi submitted a second application to Lendio on May 29,
2020, claiming to have 95 employees and an average monthly payroll
of $800,000. During this time, Buoi had a list of potential
employees curated by LinkedIn and Indeed (which are
employment-focused websites) who had not actually started working
for Sosuda. Lendio requested an employee list in addition to
Buoi's PPP loan application and 2019 tax return documents. In
response to Lendio's request, Buoi sent a list of approximately
100 employees, including the date they were hired, their full-time
status, and taxes deducted with net earnings. The list of
employees contained some entries with missing last names and some
of the listed employees were colleges or universities, like Penn
State and Wilson College. There were 35 examples of crossover
between the list of potential employees Buoi wished to hire and
the list Buoi provided to Lendio in support of his PPP loan
application claiming that said employees were on payroll. It is
unclear from the record whether this application was accepted.
- 7 - Fundbox PPP Loan Application
Buoi applied for a PPP loan from Fundbox on June 7, 2020,
certifying that the funds sought were going to be used to retain
employees already on the payroll and that the information provided
in the application was true and accurate. Buoi claimed that Sosuda
had 96 employees and an $800,000 average monthly payroll.
Accompanying this application were IRS Form 940, claiming
$9,600,000 paid to employees, and IRS Form 941, claiming 96
employees and $2,400,000 in wages, tips, and compensation paid,
both backdated the same as before. Fundbox approved this loan and
transferred $2,000,000 to Sosuda's account.
Newtek PPP Loan Application
Buoi then applied for a PPP loan with Newtek on June 9,
2020, using the same figures and dates as the Fundbox
application -- 96 employees and $800,000 average monthly
payroll -- and the same tax documents as the Fundbox
application -- IRS Form 940, claiming $9,600,000 paid to
employees, and IRS Form 941, claiming 96 employees and $2,400,000
in wages, tips, and compensation paid. This loan application was
denied.
Buoi's Use of the PPP Funds
The PPP funds provided through the PPP program were to
be used to maintain payroll for employees who had their primary
residence in the United States, and for other specific expenses,
- 8 - like rent and mortgage payments. Buoi, however, withdrew $7,200
in cash and wired $20,000 to India, with the word "payroll" in the
memo line, out of the $2,000,000 in PPP funds from Fundbox. The
remainder of the funds were seized by the Government following its
investigation.
B. Procedural History
Following a Government investigation, a grand jury
indicted Buoi on four counts of wire fraud, in violation of 18
U.S.C. § 1343, and one count of making false statements to a
financial institution, in violation of 18 U.S.C. § 1014. The four
counts of wire fraud were for the PPP loan applications Buoi
submitted to Lendio on May 21, 2020, Fundbox on June 7, 2020, and
Newtek on June 9, 2020, as well as the $2,000,000 transfer from
Fundbox to Buoi on June 15, 2020. The false-statement count
stemmed from the PPP loan application Buoi submitted to BOA.
Buoi's three-day jury trial commenced on February 22,
2022. The Government presented the evidence recounted above at
trial. Once the Government rested, Buoi moved for a directed
verdict of acquittal claiming that the Government had not proven
the intent element of wire fraud or influencing a financial
institution. Buoi argued that his admission to BOA that he had no
employees and the fact that he was asking for clarification on the
PPP loan application process shows that he was simply mistaken
about the program's requirements when he submitted the documents.
- 9 - The court denied the motion. Buoi then testified in his own
defense. When the defense rested, Buoi's counsel renewed the
motion for a directed verdict of acquittal, claiming Buoi's
testimony strengthened the position that Buoi was misled and that
the submission of his application and documents was a good faith
mistake. The district court denied the motion stating that the
issue was a question for the jury and that there was sufficient
evidence to sustain a conviction.
The jury instructions on intent and good faith were
discussed by the parties and the court at great length. Both
parties proposed instructions, and, eventually, the court decided
to instruct the jury, using the Government's proposed instruction,
that "[i]f the defendant acted in good faith, he cannot be guilty
of the crime" and "[t]he burden to prove intent, as with all other
elements of the crime, rests with the government." The jury was
so instructed and there was no objection by Buoi as to the good
faith instruction. Given the concerns about a juror's schedule
and court closure due to an impending snowstorm, the jury was also
told that it could "take as much time or as little time as you
think is appropriate to make this decision. None of you should
feel any pressure whatsoever to make a decision today or at any
other time." The jury deliberated for approximately four hours
and returned a guilty verdict on all five counts. At the
conclusion of the verdict, the court asked if Buoi would like to
- 10 - poll the jury, which his counsel declined. The district court
ultimately sentenced Buoi to thirty-nine months of imprisonment to
be served concurrently on each count followed by three years of
supervised release. This timely appeal as to his conviction
followed.
II. Discussion
Buoi raises the following arguments on appeal:
(1) insufficient evidence of his intent to defraud,
(2) insufficient evidence of his intent to influence a financial
institution, (3) ineffective assistance of counsel for requesting
an undermining jury instruction, and (4) ineffective assistance of
counsel for failing to poll the jury. The Government contends
that there was sufficient evidence for a rational jury to convict
Buoi and that his ineffective assistance of counsel claims are not
cognizable on direct appeal. We conclude that sufficient evidence
supported Buoi's convictions, affirming the district court, but
decline to reach the merits of the ineffective assistance of
counsel claims, for the reasons discussed below.
A. Insufficient Evidence Claims
Standard of Review
A defendant may move for and obtain a judgment of
acquittal based on insufficient evidence under Federal Rule of
Criminal Procedure 29 ("Rule 29"). See Fed. R. Crim. P. 29. Buoi
preserved for appeal the challenge to the sufficiency of evidence
- 11 - by moving both at the close of the Government's case and his own.
See United States v. Stein, 233 F.3d 6, 20 (1st Cir. 2000). We
review a preserved Rule 29 claim de novo. United States v.
Millán-Machuca, 991 F.3d 7, 17 (1st Cir. 2021) (citing United
States v. Santos-Soto, 799 F.3d 49, 56 (1st Cir. 2015)).
Challenging the sufficiency of the evidence is a
"difficult task." United States v. Martin, 228 F.3d 1, 10 (1st
Cir. 2000). As explained above, the evidence is viewed in the
light most favorable to the verdict, Paz-Alvarez, 799 F.3d at 18,
and we focus our inquiry on "whether any rational trier of fact
could have found the essential elements of the crime beyond a
reasonable doubt." United States v. Bailey, 405 F.3d 102, 111
(1st Cir. 2005) (citation and internal quotation marks omitted).
"The court must credit both direct and circumstantial evidence,
without evaluating or speculating on the weight the jury has given
different pieces of evidence, and without making its own judgments
as to credibility." Martin, 228 F.3d at 10. The jury may draw
conclusions from the totality of the evidence presented, as opposed
to evaluating pieces of evidence individually. Id. Our inquiry
is not "to determine if alternate interpretations of the evidence
were available," only whether "the evidence was sufficient for the
jury to reach a reasonable interpretation" to convict. Id. at 18.
"[W]e will reverse only if the verdict is irrational." United
States v. Connolly, 341 F.3d 16, 22 (1st Cir. 2003).
- 12 - 1. Wire Fraud Convictions
The jury found Buoi guilty on all four counts of wire
fraud, in violation of 18 U.S.C. § 1343. Wire fraud has three
elements: "1) a scheme to defraud by means of false pretenses,
2) the defendant's knowing and willful participation in the scheme
with the intent to defraud, and 3) the use of interstate wire
communications in furtherance of the scheme." United States v.
Cassiere, 4 F.3d 1009, 1011 (1st Cir. 1993) (citation omitted).
Buoi takes issue only with the second element, arguing that no
reasonable jury could have found intent to defraud beyond a
reasonable doubt because he truthfully told BOA that he had little
payroll and no tax forms, and because the evidence relied upon by
the Government was speculative and insufficient. Buoi's arguments
are, in effect, an attempt to convince us that the jury should
have made different inferences based on the evidence presented.
We disagree, taking each of his arguments in turn.
Buoi, first, mistakenly attempts to argue that his
statements to BOA undermine the evidence of intent needed to uphold
the four counts of wire fraud convictions. But those convictions
were not based on his dealings with BOA. And there is no evidence
that the other lenders knew of his statements to that bank.
Furthermore, to the extent Buoi argues that the jury could have
inferred from these statements to BOA that he did not intend to
defraud the other lenders, the jury was entitled to come to
- 13 - whatever rational conclusion it saw fit based on the evidence
presented and it is not our role to second-guess its conclusion.
See United States v. Soler-Montalvo, 44 F.4th 1, 8 (1st Cir. 2022).
Next, Buoi argues that the evidence presented as to his
alleged intent to defraud was insufficient. Specifically, he
argues that the evidence presented was entirely consistent with
the theory he presented at trial: that he submitted documents "as
a projection of how he intended to use the payroll, the proceeds
from the loan." To that end, he describes how each, individual
piece of the Government's evidence as to intent is consistent with
his theory and inconsistent with an intent to defraud. We reject
these arguments. See United States v. Jimenez-Perez, 869 F.2d 9,
11 (1st Cir. 1989) (noting that the Government need not "'preclude
every reasonable hypothesis inconsistent with guilt' in order to
sustain a conviction" (quoting United States v. Guerrero-Guerrero,
776 F.2d 1071, 1075 (1st Cir. 1985))).
As an initial matter, our task is to "view[] the facts
as a whole, not in splendid isolation." Webster v. Gray, 39 F.4th
27, 38 (1st Cir. 2022) (citations omitted). "[W]e do not view
each piece of evidence separately, re-weigh the evidence, or
second-guess the jury's credibility calls." United States v.
Seary-Colón, 997 F.3d 1, 12 (1st Cir. 2021) (citations omitted).
Viewing the evidence, accordingly, as a whole, there was abundant
evidence from which a jury could easily conclude Buoi knowingly
- 14 - and intentionally lied to the lenders: his numerous false
statements in the applications and supporting documents; his
giving different figures to different lenders which he said covered
the same periods; his failure to file with the IRS his "tax forms"
and his backdating these forms to make it appear to lenders the
forms had been timely filed; his creation and use of these false
"tax forms" to mislead lenders; and his improper use for personal
purposes of the PPP funds he obtained through his deceit, all
reinforcing his wrongful intent. We need not detail the
overwhelming evidence of guilt any further.
Relatedly, Buoi makes three additional arguments in
support of his claim that there was insufficient evidence of his
intent to defraud, the first being that he called BOA with
questions, which supposedly undermines a finding of intent to
defraud. This argument fails because (again) the wire fraud
charges pertain to the other lenders, not BOA. Even if the
argument pertained to other lenders, as stated above, the
applications themselves, and the seminar Buoi attended, made it
clear what qualified a business for the loan, permitting a jury to
conclude he understood he was not qualified despite his testimony
to the contrary.
Second, Buoi argues that there was scant evidence of his
linguistic or legal proficiency, thus undermining his intent to
defraud. However, there was evidence presented at trial that Buoi
- 15 - had a Master's of Science Degree in Innovation and Technology from
the University of Massachusetts Lowell and selected English as his
preferred language for the PPP loan applications. The jury also
observed Buoi's proficiency in English when he testified in his
own defense. This is another attempt to characterize the evidence
in Buoi's favor, when it is obvious that the jury made the opposite
inference. See Soler-Montalvo, 44 F.4th at 8. The jury was
permitted to conclude that, because Buoi had an advanced degree
from a United States university and indicated English to be his
preferred language, he was able to read and understand the
applications with the PPP program requirements and attestations he
made. Therefore, he intended to defraud.
Lastly, Buoi argues that the Government's reliance on
his defensiveness on the stand does not demonstrate an intent to
defraud. Even crediting Buoi's claim, we fail to see the
significance of it, given that the Government presented ample other
evidence demonstrating his intent to defraud.
Ultimately, the various claims Buoi makes, as addressed
above, are an attempt to argue that individual pieces of evidence,
viewed through his own interpretation, undermine the jury's
finding that he intended to defraud. Having reviewed the trial
record as a whole, however, we easily conclude that there was
sufficient evidence of Buoi's intent to defraud for his wire fraud
convictions.
- 16 - 2. False Statement To A Financial Institution Conviction
The jury also found Buoi guilty of making a false
statement to a financial institution, in violation of 18 U.S.C.
§ 1014. Proving a false statement to a financial institution
requires three elements to be met: "(i) the defendant made a false
statement to a bank; (ii) the defendant acted knowingly; and
(iii) the false statement was made for the purpose of influencing
the bank's actions on the loan." United States v. Tierney, 266
F.3d 37, 40 (1st Cir. 2001) (citation omitted). It is "unlawful
to 'knowingly make[] any false statement or report . . . for the
purpose of influencing in any way the action of . . . any
institution the accounts of which are insured by the Federal
Deposit Insurance Corporation.'" United States v. Graham, 146
F.3d 6, 10 (1st Cir. 1998) (alteration and second omission in
original) (quoting 18 U.S.C. § 1014). "'[F]or the purpose of
influencing'" defines the required intent for such a claim. United
States v. Norberg, 612 F.2d 1, 5 (1st Cir. 1979) (quoting United
States v. Sheehy, 541 F.2d 123, 127 (1st Cir. 1976)). Buoi argues
that no reasonable jury could find that he knowingly made false
statements with the intent to influence a financial institution
because he truthfully told BOA that he had little payroll and did
not file taxes, and thus he had no tax forms. We again disagree.
- 17 - The evidence presented at trial was sufficient for a
reasonable jury to conclude that Buoi had the requisite intent to
influence a financial institution. Buoi's main argument is that:
[N]o jury reasonably could conclude that the false statements within Forms 940 and 941 were intended to influence Bank of America, given Buoi's insistence throughout the Bank of America application process that he had no such information or documents . . . [and] sought to prevent any influence by emailing and calling Bank of America to explain his employee and payroll situation.
However, this argument lacks merit because a bank's "awareness of
the fraud is not relevant." United States v. Behenna, No. 94-1571,
1995 WL 3731, at *4 (1st Cir. Jan. 5, 1995) (per curiam)
(unpublished table decision); see also United States v. Kellet,
No. 94-1920, 1995 WL 449640, at *2 (1st Cir. July 31, 1995) (per
curiam) (unpublished table decision) (explaining that bank's
awareness of fraud is not relevant because said awareness is not
inconsistent with defendant's fraudulent intent (citation
omitted)). Therefore, the jury could reasonably conclude that
Buoi intended to influence BOA even if he was unlikely to succeed.
There were also additional BOA employees involved in processing
PPP loan applications -- as evidenced by his application being
forwarded to another BOA employee -- who were potentially unaware
of the statements that Buoi had made to the one employee that he
worked with directly. Because "certain decision-makers in the
bank still remained to be influenced," the jury was justified in
- 18 - finding that the statements made were for the purpose of
influencing BOA. Sheehy, 541 F.2d at 128 (citation and internal
quotation marks omitted).
In addition, there were other documents provided to BOA,
besides the tax forms, that contained false information. Buoi
submitted the PPP loan application and the fabricated payroll
processing sheets before he was asked to provide the tax forms.
This evidence lends support to the jury's finding that Buoi
intended to provide false statements in an attempt to influence
BOA to approve his PPP loan application, as it was done before he
admitted to BOA that he had very little payroll and no tax
documentation. Buoi also testified that he did not have the intent
to mislead the bank in its lending decisions. As noted previously,
it is not our job, but the jury's, to determine which witnesses to
credit and which to discredit. See Soler-Montalvo, 44 F.4th at 8.
These facts, coupled with Buoi's admission that he submitted the
tax forms in order to obtain his PPP loan and all of the evidence
supporting his intent to defraud, were enough for the jury to
conclude that he intended to influence BOA.
B. Ineffective Assistance of Counsel Claim
Lastly, Buoi claims ineffective assistance of counsel
based on two reasons: (1) his counsel requesting a jury instruction
that focused the jury away from specific intent language and
- 19 - instead on good faith language, and (2) his counsel's failure to
poll the jury. An ineffective assistance of counsel claim
typically cannot be raised for the first time on direct review as
there is no record from the lower court to reference. See Mala,
7 F.3d at 1063. Ineffective assistance of counsel claims are
inherently fact dependent and require insight into counsel's
decision making. See United States v. Staveley, 43 F.4th 9, 17
(1st Cir. 2022) (explaining reliance on record for ineffective
assistance of counsel claims). "If the alleged error is one of
commission, the record may reflect the action taken by counsel but
not the reasons for it. The appellate court may have no way of
knowing whether a seemingly unusual or misguided action by counsel
had a sound strategic motive" or was the best alternative
available. Massaro v. United States, 538 U.S. 500, 505 (2003).
Where there is no additional development of fact, we may not be
able to determine if there was prejudicial error. See id. As
such, an ineffective assistance of counsel claim that is raised
for the first time on appeal should typically be addressed through
a collateral proceeding under 28 U.S.C. § 2255. Staveley, 43 F.4th
at 19; see Massaro, 538 U.S. at 504 ("[I]n most cases a motion
brought under § 2255 is preferable to direct appeal for deciding
claims of ineffective assistance.").
In special, limited circumstances, however, "where the
critical facts are not genuinely in dispute and the record is
- 20 - sufficiently developed to allow reasoned consideration of an
ineffective assistance claim, an appellate court may dispense with
the usual praxis and determine the merits of such a contention on
direct appeal." United States v. Natanel, 938 F.2d 302, 309 (1st
Cir. 1991). On appeal, it is "strongly presumed" that counsel has
"'rendered adequate assistance and made all significant decisions
in the exercise of reasonable professional judgment' . . . and
that the burden to 'show that counsel's performance was deficient'
rests squarely on the defendant." Burt v. Titlow, 571 U.S. 12,
22-23 (2013) (quoting Strickland v. Washington, 466 U.S. 668,
687-90 (1984)).
Here, Buoi's claims are not those in which "critical
facts are not genuinely in dispute and the record is sufficiently
developed." Natanel, 938 F.2d at 309. Buoi claims that the record
is adequately developed for us to reach the merits of his
ineffective assistance claims. As to his instructional claim,
Buoi argues that there is an adequate record because there is a
record of which jury instructions were requested, which were not
requested, and which were given. As to his polling claim, Buoi
argues that there is an adequate record regarding counsel's
decision not to poll the jury because the trial transcript reflects
that the jury sent a question during deliberation, the
circumstances surrounding a juror having to leave early and an
impending snowstorm closing the court for the remainder of the
- 21 - week, and the fact that defense counsel was asked if they wanted
to poll the jury. However, we conclude, in accordance with our
precedent's guidance, that there is no adequate record with which
to determine the effectiveness of counsel's decisions. See
Staveley, 43 F.4th at 17 ("There is little in the record to explain
'why counsel acted as he did.'" (quoting United States v.
Torres-Rosario, 447 F.3d 61, 65 (1st Cir. 2006) (emphasis in
original))). Without further fact development, there is no way to
determine why counsel made their decisions at trial and a
collateral proceeding is the appropriate place to explore those
necessary additional facts.2 See Martinez v. Ryan, 566 U.S. 1, 13
(2012) ("Direct appeals, without evidentiary hearings, may not be
as effective as other proceedings for developing the factual basis
for the claim."). We therefore decline to reach the merits of
Buoi's ineffective assistance of counsel claims and dismiss them
without prejudice.
Insofar as Buoi argues that counsel's thought process is 2
irrelevant because no defensible rationale exists for his actions, that argument only reinforces our conclusion. The only support Buoi cites for the proposition that there was no defensible rationale for counsel's actions is his own understanding of what competent counsel would have done in that scenario. But that is hardly the proper benchmark by which we measure ineffective assistance of counsel. To be sure, Buoi's trial counsel may have had legitimate reasons for his actions, which are simply unclear from the record. Any argument that trial counsel did not have a defensible rationale for his actions is, at bottom, speculative and improper for review on appeal at this moment.
- 22 - III. Conclusion
Because we conclude that there was sufficient evidence
presented for a reasonable jury to find intent to defraud and
intent to influence beyond a reasonable doubt and because we
dismiss Buoi's ineffective assistance of counsel claims as
improper for review on direct appeal, Buoi's convictions are
Affirmed.
- 23 -