United States v. Kellett

Opinion

USCA1 Opinion

July 31, 1995

                                [NOT FOR PUBLICATION]



                            UNITED STATES COURT OF APPEALS

                                FOR THE FIRST CIRCUIT


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No. 94-1920


UNITED STATES,



                                      Appellee,



                                          v.



                               H. RAYMOND KELLETT, JR.,



                                Defendant, Appellant.



                                 ____________________



                     APPEAL FROM THE UNITED STATES DISTRICT COURT



                        FOR THE DISTRICT OF MASSACHUSETTS



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



                                 ____________________



                                        Before



                                Torruella, Chief Judge,
                                           ___________

                          Boudin and Stahl, Circuit Judges.
                                            ______________



                                 ____________________



            H. Raymond Kellett, Jr. on brief pro se.
            _______________________

            Donald  K.  Stern,  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,  U.S. Department of Justice, on brief for appellee.


____________________


____________________



Per Curiam.   H. Raymond Kellett  appeals from  the
                      __________



            summary denial of his  motion for a new trial  and his motion



            for reconsideration.  We affirm.



                      Kellett  was a  closing  attorney for  a  federally



            insured  bank, ComFed Savings Bank.  In 1990, he was indicted



            for  making false  statements  to ComFed  in violation  of 18



            U.S.C.   1014 and  for obstructing justice.  His  trial ended



            in  a hung jury.   Thereafter,  a superceding  indictment was



            returned.  Kellett then pled guilty to  one count of making a



            false statement to the  bank and to one count  of obstructing



            justice.   He was sentenced, served his term of imprisonment,



            and  is  now serving  a term  of  supervised release.   After



            bringing  two petitions  for post-conviction  relief, Kellett



            brought the  motion now before  us.   In a margin  order, the



            district court denied  the motion; it  also summarily  denied



            subsequent  motions to  amend and  to reconsider  the court's



            decision. 



                      Kellett's  motion sought  to invalidate  his guilty



            plea.  According to the motion, Kellett had recently obtained



            exculpatory  evidence which  the prosecution  had had  in its



            possession, but had  failed to produce during  discovery.  If



            the  withheld evidence  had  been  produced, Kellett's  trial



            allegedly would likely  have ended in acquittal  and he would



            not  have pled  guilty.   In support  of his  motion, Kellett



            submitted his own affidavit and affidavits and a statement by



            his  trial  attorney.   Kellett asked  for  a hearing  on his



claims  and  a  new trial.    For  reasons  which follow,  we



            affirm.2  



                      Because   Kellett  was   never   tried  after   his



            reindictment, we construe  his motion  for a new  trial as  a



            motion  for post-conviction  relief under  28 U.S.C.    2255.



            See United States  v. Collins,  898 F.2d 103,  104 (9th  Cir.
            ___ _____________     _______



            1990) (per  curiam) (a  defendant who  pleads guilty may  not



            bring a  motion for a new  trial under Fed. R.  Crim. P. 33).



            For argument's sake, we assume that Kellett may challenge his



            guilty  plea  on the  ground that  the prosecution  failed to



            disclose exculpatory evidence.  See Sanchez v. United States,
                                            ___ _______    _____________



            50 F.3d 1448,  1453 (9th Cir. 1995)  (a defendant challenging



            the voluntariness of a guilty plea may assert a Brady claim);
                                                            _____



            United  States v. Wright, 43  F.3d 491, 496  (10th Cir. 1994)
            ______________    ______



            (under limited circumstances, a  Brady violation can render a
                                             _____



            defendant's  plea involuntary); White  v. United  States, 858
                                            _____     ______________



            F.2d  416, 422 (8th  Cir. 1988) (Supreme  Court precedent did



            not foreclose  a Brady  challenge to  a  guilty plea),  cert.
                             _____                                  _____



            denied, 489 U.S. 1029 (1989); Campbell  v. Marshall, 769 F.2d
            ______                        ________     ________



            314,  321 (6th Cir.  1985) (similar), cert.  denied, 475 U.S.
                                                  _____________



                                
            ____________________



            2.  Because this appeal is so clearly meritless and rendering

            a decision on the  merits would not alter the  result reached

            below,  we agree with the  government that we  may bypass the

            jurisdictional questions it  raises in  its appellate  brief.

            See  FDIC v. Bay Street  Development Corp., 32  F.3d 636, 639
            ___  ____    _____________________________

            n.4  (1st Cir. 1994).   In view  of our  disposition, we also

            decline to consider other issues raised by the  government in

            its thorough brief, e.g.,  whether Kellett's motion should be

            denied as an abuse of the writ.



                                         -3-



1048  (1986); but see Smith  v. United States,  876 F.2d 655,
                          ___ ___ _____     _____________



            657  (8th Cir.) (in  pleading guilty, a  defendant waives all



            nonjurisdictional challenges to  the prosecution, including a



            claim  based  on   the  prosecution's  failure   to  disclose



            favorable evidence), cert. denied, 493  U.S. 869 (1989).  The
                                 ____________



            relevant question, then, is  whether the withheld information



            was  material to Kellett's defense.   The test of materiality



            in  evaluating  a challenge  to a  guilty  plea based  on the



            withholding  of exculpatory  evidence is  whether there  is a



            "reasonable probability" that a defendant would have  refused



            to  plead  and  would   have  gone  to  trial  but   for  the



            prosecution's withholding  of the evidence.   See Sanchez, 50
                                                          ___ _______



            F.3d  at 1454;  accord Wright,  43 F.3d  at 496  (evidence is
                            ______ ______



            material only if  there is a reasonable  probability that its



            disclosure would have altered the result of the proceeding in



            question); compare  White, 858  F.2d at 424  (rejecting Brady
                       _______  _____                               _____



            challenge  to defendant's  Alford  plea because  the withheld
                                       ______



            evidence would  not have  been  "controlling" in  defendant's



            decision to plead guilty); Campbell, 769  F.2d at 324 (same).
                                       ________



            The test of  materiality is  an objective one.   Sanchez,  50
                                                             _______



            F.3d at 1454.  



                      Viewed objectively, there  is no question that  the



            withheld evidence was not material to Kellett's determination



            to plead  guilty.  Here,  Kellett essentially pled  guilty to



            knowingly  making a  false statement  to ComFed  in  order to


-4-



influence  the bank's action upon a loan application.  See 18
                                                                   ___



            U.S.C.    1014.  The government's charge against him was that



            he had  knowingly signed loan  documents falsely representing



            that there  was no secondary financing on  the property being



            mortgaged.  The withheld  evidence consisted, first, of notes



            by  Frank Buco,  a co-defendant  and former  ComFed Executive



            Vice-President who pled guilty  to making false statements to



            ComFed  and who  testified for  the prosecution  at Kellett's



            trial;  and,  second,  of   a  transcript  of  two  telephone



            conversations between  James Baldini, a  former President and



            director of  ComFed, and  a person identified  only by  first



            name in  the transcript.   The Buco notes are  far from self-



            explanatory, consisting in large part of incomplete sentences



            and  phrases,  unexplained  bank jargon,  and  references  to



            unidentified persons and events.   Without further background



            explanation, we cannot see the precise significance of Buco's



            notes.  They  refer to Kellett  once, but  the import of  the



            reference  is unclear.3    They suggest,  as Kellett  argues,



            that Jack Zoeller, a ComFed director and President, knew that



            second  mortgages were  being concealed.    If so,  the notes



            indicate that Buco had information which could have impeached



                                
            ____________________



            3.  The paragraph containing the reference to Kellett reads:



                 Accusations are made  by Fred Maloof about  scheme.  Ray

                 Kellett, abused, Addullah, Ambiehl.  Kick Backs, etc. NO

                 DOC  Program stopped  3/89  reluctantly by  Zoeller.   I

                 urged him many times to kill program, not loan officers.

                 He did it his way.



                                         -5-



Zoeller at trial, who allegedly denied any involvement in the



            "No  Doc"  loan program.4   The  notes  may also  suggest, as



            Kellett  claims, that  bank  directors had  willfully ignored



            information  that  loan   applications  with  hidden   second



            mortgages were being submitted to  the bank, and that Baldini



            had  been   involved  in  establishing  the   program.    The



            discussions recorded in the  Baldini transcript involved loan



            transactions involving "bogus  buyers."  Neither Baldini  nor



            the  person he  spoke with  referred to  Kellett or  to loans



            involving  hidden second  mortgages.   At one  point, Baldini



            expressed his dislike  of fraud, adding vaguely that  he "got



            set up by  a Board of Directors at Comfed to take a fall that



            the US Attorney has cleared  me of."  His statement  does not



            support  Kellett's  claim  that  the  transcript  shows  that



            Baldini,  Zoeller  and  ComFed's  directors  knew  about  and



            participated in the No Doc loan program. 



                      Thus,  the withheld evidence  contains nothing that



            even hints at Kellett's  innocence.  For argument's sake,  we



            assume that it clearly  showed that senior bank  officers and



            directors, including Baldini and Zoeller, had approved the No



            Doc  loan program  and  that they  continued  to promote  the



                                
            ____________________



            4.  Apparently, the  bank  had  implemented  a  loan  program

            whereby it would approve loan  applications without obtaining

            documents  verifying   a  borrower's  assets.     It  is  our

            understanding  that  it  was  the failure  to  require  asset

            verification  that permitted  Kellett and  others to  prepare

            documents  falsely representing  that  there were  no  second

            mortgages on the properties in question. 



                                         -6-



program   after   becoming  aware   that   loan  applications



            concealing second mortgages were being submitted to the bank.



            As  a  matter  of  law,  however,  that  evidence  would  not



            exonerate Kellett.  The case law is clear that the complicity



            of  a bank or of bank officers is  not a defense in a section



            1014 prosecution.5   See, e.g., United  States v. Blumenthal,
                                 _________  ______________    __________



            945 F.2d  280, 282-83  (9th Cir.  1991) (affirming the  lower



            court's  refusal  to  give  jury  instructions  on  the  bank



            officers' collusion with the defendant; the  instructions did



            not  advance  a "legally  sound"  theory);  United States  v.
                                                        _____________



            Wilcox,  919 F.2d  109, 112  (9th  Cir. 1990)  (affirming the
            ______



            exclusion of  evidence that bank officers  had told defendant



            that he could make the false statements in question);  United
                                                                   ______



            States  v. Bush, 599 F.2d  72, 75 (5th  Cir. 1979) (affirming
            ______     ____



            the  lower court's  refusal  to instruct  the  jury that  the



            defendant's  false statements  could  not have  been made  to



            influence  the bank  because  the bank's  president knew  the



            statements were false;    1014 does not "immunize a  party in



            duplicity with  a bank  officer"); United States  v. Johnson,
                                               _____________     _______



            585 F.2d 119, 123-25 (5th Cir. 1978) (affirming the exclusion



            of  evidence  about  bank officers'  complicity;  the  bank's



                                
            ____________________



            5.  The  government correctly  notes that we  have previously

            denied  Kellett's  contention   that  the  bank's  complicity

            exculpates him under section 1014.  See H. Raymond Kellett v.
                                                ___ __________________

            United States, No. 93-1843,  at 2-4 (1st Cir. Apr.  6, 1994).
            _____________

            In that  appeal, the Buco  notes and Baldini  transcript were

            not in  the record,  although Kellett's reply  brief in  that

            case referred to them.



                                         -7-



awareness of the fraud is not relevant since its existence is



            not   inconsistent  with   the  defendant's   possessing  the



            requisite intent to influence); United States v. Brennan, 832
                                            _____________    _______



            F.  Supp.  435, 448  (D.  Mass. 1991)  (   1014 focuses  on a



            defendant's  intent to  influence  the bank  by making  false



            statements, not on whether  the bank was actually influenced;



            thus,  "it  was  of no  consequence  whether  or  not a  bank



            official knew th[e]  statements were false when  submitted"),



            aff'd, 994 F.2d 918 (1st Cir. 1993).6
            _____



                      Viewed   objectively,   therefore,   the   withheld



            evidence  would not have supported a viable defense and so it



            was  not material (except for  the very limited  use it might



            have been for impeachment purposes).  See Sanchez, 50 F.3d at
                                                  ___ _______



            1454  (the   withheld  evidence  was  not   material  to  the



            defendant's  decision  to plead  guilty  because  one of  the



            defenses it allegedly  supported was not viable and the other


____________________



            6.  Kellett's argument concerning  the bank's complicity  may

            be based on  the premise  that any false  statements he  made

            could not have been intended to influence the bank to approve

            the  loans since  the bank  itself had  initiated the  No Doc

            program and continued it knowing that false loan applications

            were being submitted.   See United States v. Grissom,  44 F3d
                                    ___ _____________    _______

            1507, 1510 (10th Cir.) (a requisite element of a section 1014

            prosecution is  that the defendant has  made false statements

            to a bank  for the  purpose of influencing  the bank),  cert.
                                                                    _____

            denied,  115 S.  Ct. 1720 (1995).   If so,  his premise would
            ______

            seem wrong as a  matter of common sense.  The bank apparently

            would not  have approved  the loan  applications if  they had

            disclosed the  existence  of secondary  financing.    Because

            Kellett  was willing to close on  documents he knew contained

            false  representations,  the bank  was  able  to approve  the

            loans.



                                         -8-



would "almost  certainly fail"  at trial).   Although Kellett



            avers  that he  would not  have pled  guilty if  the withheld



            evidence had  been produced, he  would have had  no objective



            legal basis for  that decision, and  so we have no  basis for



            overturning his guilty plea.    



                      We  also  reject  Kellett's argument  that  he  has



            steadfastly maintained his innocence and that he did not know



            that the loan  documents sent  to him by  the bank  contained



            false statements.   In  order to  obtain  a conviction  under



            section 1014,  the prosecution  must show that  the defendant



            made  false  statements knowingly.    See  18  U.S.C.    1014
                                    _________     ___



            (imposing  liability on  those  who  "knowingly"  make  false



            statements  to a  federally insured  bank); United  States v.
                                                        ______________



            Grissom, 44 F.3d 1507, 1510 (10th Cir.), cert. denied, 115 S.
            _______                                  ____________



            Ct.  1720 (1995).  In  his plea agreement,  Kellett agreed to



            plead  guilty  to  making   false  statements  to  ComFed  in



            violation  of section 1014.7   At  his plea  hearing, Kellett



            confirmed  that   he  had   informed  his  attorney   of  the



            circumstances of  the charge  against him; he  also confirmed



            that  his attorney  had advised  him of  the nature  of those



            charges  and his possible defenses.   He then  pled guilty to


____________________



            7.  The page in  the superceding  indictment against  Kellett

            which describes  Count 25,  the count  to which  Kellett pled

            guilty,  is  missing.    The  original  indictment,  however,

            explicitly  charged  Kellett  with "knowingly"  making  false

            statements to ComFed; presumably, the  superceding indictment

            did as well.



                                         -9-



violating section 1014 after  the court had advised  him that



            doing so would waive his  right to be presumed innocent.   He



            did not  object to the  government's description of  its case



            against him.8   Moreover,  Kellett's attorney stated  that he



            did not know  of any reason why  the court should  not accept



            the plea.  The court accepted Kellett's plea  as "voluntarily



            and  knowledgeably offered."   The  court further  found that



            there  was  an  independent   basis  of  fact  for  accepting



            Kellett's plea  because of  what he  had  heard at  Kellett's



            trial  on the  first  indictment.   Under the  circumstances,



            Kellett  cannot claim  now that  he  did not  knowingly plead



            guilty,  and cannot  now  protest that  he  was innocent  all



            along.   It  is inconceivable  that Kellett's  attorney would



            have recommended a guilty plea, or that Kellett, an attorney,



            would have pled  guilty, if  Kellett had not  known that  the



            loan documents he signed contained false statements.  We have


____________________



            8.  The prosecutor stated that she had been prepared to prove

            the following  at trial: that  Kellett had participated  in a

            scheme to  conceal  second mortgages  from  the  underwriting

            department at the bank; that, in connection with one specific

            loan  application,  Kellett  had  prepared or  caused  to  be

            prepared a  HUD-1 settlement statement, a  HUD-1 certificate,

            and a Fannie Mae affidavit, all of which falsely  represented

            that no  second mortgage on the property in question existed;

            that Kellett had signed those documents, thereby vouching for

            their veracity; that the  bank had granted a mortgage  on the

            basis  of those  documents;  that the  mortgage violated  the

            bank's underwriting guidelines and the mortgagor subsequently

            defaulted; and that ComFed was a federally insured bank.   



                                         -10-



no basis for  relieving Kellett  of the  consequences of  his



            informed and voluntary decision to plead guilty.9



                      On appeal, Kellett also argues that the trial court



            initiated plea discussions with  him in chambers in violation



            of Fed.  R. Crim. P.  11(e).   We do not  address that  claim



            since it was not squarely raised below.  See United States v.
                                                     ___ _____________



            Ocasio-Rivera, 991  F.2d  1,  3 (1st  Cir.  1993).    Kellett
            _____________



            suggests as well that the  court should have recused  itself.



            Because  he failed to file a motion below seeking the court's



            disqualification or recusal, that  claim is not before  us on



            appeal.  See  United States v. Towns, 913 F.2d  434, 443 (7th
                     ___  _____________    _____



            Cir. 1990); United States v. De La Fuente, 548  F.2d 528, 541
                        _____________    ____________



            (5th Cir.), cert. denied, 431 U.S. 932 (1977).
                        ____________



                      Because Kellett's claim that his guilty plea should



            be overturned was meritless, no hearing was required.  



                      Affirmed.
                      _________


____________________



            9.  In  view  of  his  plea hearing  and  sentencing  hearing

            transcripts, we discount entirely Kellett's claim that he had

            only  accepted responsibility on behalf of his office.  It is

            true that  his presentence  investigation report  records his

            comment that he accepted responsibility for his subordinates'

            conduct.   At sentencing,  the government asked  the court to

            deny Kellett a two-level reduction in his base offense  level

            because of Kellett's  equivocal acceptance of responsibility;

            it maintained that Kellett was  "trying to . . . walk  a thin

            line so as to preserve his bar membership."  In any event, in

            response to  questioning by the court,  Kellett unequivocally

            agreed  that he accepted responsibility for the two counts of

            the indictment to which he had pled guilty.



                                         -11-