F I L E D United States Court of Appeals Tenth Circuit UNITED STATES COURT OF APPEALS SEP 2 1997 FOR THE TENTH CIRCUIT PATRICK FISHER Clerk
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v. No. 96-1333 (D.C. No. 96-Z-542) WILLIAM A. KILPATRICK, (D. Colo.)
Defendant-Appellant.
ORDER AND JUDGMENT *
Before ANDERSON, LOGAN, and EBEL, Circuit Judges.
After examining the briefs and appellate record, this panel has determined
unanimously that oral argument would not materially assist the determination of
this appeal. See Fed. R. App. P. 34(a); 10th Cir. R. 34.1.9. The case is therefore
ordered submitted without oral argument.
Defendant William A. Kilpatrick appeals the district court’s denial of his
28 U.S.C. § 2255 motion seeking relief from his convictions for conspiracy, mail
* This order and judgment is not binding precedent, except under the doctrines of law of the case, res judicata, and collateral estoppel. The court generally disfavors the citation of orders and judgments; nevertheless, an order and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3. fraud, wire fraud, and obstruction of justice, all stemming from a penny stock
manipulation scheme involving defendant’s company, United Financial
Operations, Inc. (UFO). On appeal, defendant argues that the district court erred
in denying his claims alleging the ineffectiveness of his trial counsel without an
evidentiary hearing. 1 See generally United States v. Galloway, 56 F.3d 1239,
1242 (10th Cir. 1995) (ineffective assistance claims should be asserted in § 2255
motion).
The district court need not conduct an evidentiary hearing if “the [§ 2255]
motion and the files and records of the case conclusively show that the prisoner is
entitled to no relief.” 28 U.S.C. § 2255. Thus, we first determine whether
defendant’s allegations, if proven, would entitle him to relief and, if so, whether
the district court abused its discretion in denying an evidentiary hearing. See
United States v. Lopez, 100 F.3d 113, 119 (10th Cir. 1996).
Defendant is entitled to § 2255 relief on his ineffective assistance claims
only if he can establish both that his trial attorney’s representation was deficient
and that the deficiency prejudiced his defense. See Strickland v. Washington, 466
U.S. 668, 687 (1984). We review ineffective assistance claims de novo. See
1 The Supreme Court recently held in Lindh v. Murphy, 117 S. Ct. 2059, 2068 (1997), that the new provisions of chapter 153 of the Antiterrorism and Effective Death Penalty Act (Act) generally do not apply to cases such as this one filed prior to the Act’s effective date. Defendant, therefore, does not need to obtain a certificate of appealability to pursue this appeal.
-2- United States v. Prows, 118 F.3d 686, 691 (10th Cir. 1997). Because we conclude
that defendant has failed to allege any claim which, if proven, would entitle him
to § 2255 relief, we affirm the district court’s decision.
On appeal, defendant asserts that his trial counsel was constitutionally
ineffective in failing to (1) prepare defendant to testify; (2) object to the
prosecutor’s improper cross-examination of defendant; (3) object to hearsay
testimony relating to a conspiracy other than the one charged in this case;
(4) request a pretrial hearing on the expected testimony of defendant’s
co-conspirators in order to familiarize himself with the prosecution’s case and to
prepare for cross-examination of those witnesses; and (5) elicit exculpatory
testimony from two prosecution witnesses, Steve Oliver and Makund Gangwal.
Liberally construing defendant’s pro se § 2255 motion, see Haines v. Kerner, 404
U.S. 519, 520 (1972), we do not address his second and fourth appellate
arguments because he failed to raise those issues in the district court, and they do
not present any manifest error. See Sac & Fox Nation v. Hanson, 47 F.3d 1061,
1063 (10th Cir.) (absent manifest error, this court will not review issue raised for
first time on appeal), cert. denied, 116 S. Ct. 57 (1995); see also United States v.
Dixon, 1 F.3d 1080, 1082 n.2 (10th Cir. 1993) (§ 2255 motion).
On defendant’s first argument, our review of the trial record satisfies us
that trial counsel’s preparation and presentation of defendant’s testimony did not
-3- fall below an objective standard of reasonableness. See Strickland, 466 U.S. at
688; see also Andrews v. Deland, 943 F.2d 1162, 1193-94 (10th Cir. 1991).
With respect to defendant’s third argument, he has failed to allege with
sufficient specificity the hearsay testimony, relating to another alleged stock
manipulation conspiracy between defendant and the same people involved in this
UFO scheme, see Fed. R. Evid. 404(b), to which defense counsel should have
objected. See Hatch v. Oklahoma, 58 F.3d 1447, 1457 (10th Cir. 1995)
(allegations of counsel’s ineffective assistance must be specific and
particularized; conclusory allegations will not warrant hearing), cert. denied, 116
S. Ct. 1881 (1996). In any event, the record includes sufficient evidence
establishing the existence of that similar conspiracy to support the admissibility of
co-conspirators’ statements under Fed. R. Evid. 801(d)(2)(E). See United States
v. Sinclair, 109 F.3d 1527, 1533 (10th Cir. 1997) (although there is strong
preference for trial court to determine admissibility of alleged co-conspirator
statements in hearing outside presence of jury, there may be cases where evidence
establishing admissibility under Rule 801(d)(2)(E) is without doubt,
unimpeachable and uncontroverted so that no credibility or factual determination
is required).
Our response to defendant’s final argument is that he has failed to allege
any prejudice suffered from counsel’s purportedly deficient cross-examination of
-4- Steve Oliver. See Strickland, 466 U.S. at 697 (court need not determine whether
counsel’s performance was deficient before examining whether defendant was
prejudiced by alleged deficiencies). Defendant asserts that defense counsel
should have elicited testimony from Oliver explaining that the audit he performed
was for UFO’s fiscal year 1987, which ended on July 31 of that year, and that
UFO’s financial condition had improved by December 1987. Defense counsel did
elicit testimony tending to establish that UFO’s fiscal year ended in July. See 6
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F I L E D United States Court of Appeals Tenth Circuit UNITED STATES COURT OF APPEALS SEP 2 1997 FOR THE TENTH CIRCUIT PATRICK FISHER Clerk
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v. No. 96-1333 (D.C. No. 96-Z-542) WILLIAM A. KILPATRICK, (D. Colo.)
Defendant-Appellant.
ORDER AND JUDGMENT *
Before ANDERSON, LOGAN, and EBEL, Circuit Judges.
After examining the briefs and appellate record, this panel has determined
unanimously that oral argument would not materially assist the determination of
this appeal. See Fed. R. App. P. 34(a); 10th Cir. R. 34.1.9. The case is therefore
ordered submitted without oral argument.
Defendant William A. Kilpatrick appeals the district court’s denial of his
28 U.S.C. § 2255 motion seeking relief from his convictions for conspiracy, mail
* This order and judgment is not binding precedent, except under the doctrines of law of the case, res judicata, and collateral estoppel. The court generally disfavors the citation of orders and judgments; nevertheless, an order and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3. fraud, wire fraud, and obstruction of justice, all stemming from a penny stock
manipulation scheme involving defendant’s company, United Financial
Operations, Inc. (UFO). On appeal, defendant argues that the district court erred
in denying his claims alleging the ineffectiveness of his trial counsel without an
evidentiary hearing. 1 See generally United States v. Galloway, 56 F.3d 1239,
1242 (10th Cir. 1995) (ineffective assistance claims should be asserted in § 2255
motion).
The district court need not conduct an evidentiary hearing if “the [§ 2255]
motion and the files and records of the case conclusively show that the prisoner is
entitled to no relief.” 28 U.S.C. § 2255. Thus, we first determine whether
defendant’s allegations, if proven, would entitle him to relief and, if so, whether
the district court abused its discretion in denying an evidentiary hearing. See
United States v. Lopez, 100 F.3d 113, 119 (10th Cir. 1996).
Defendant is entitled to § 2255 relief on his ineffective assistance claims
only if he can establish both that his trial attorney’s representation was deficient
and that the deficiency prejudiced his defense. See Strickland v. Washington, 466
U.S. 668, 687 (1984). We review ineffective assistance claims de novo. See
1 The Supreme Court recently held in Lindh v. Murphy, 117 S. Ct. 2059, 2068 (1997), that the new provisions of chapter 153 of the Antiterrorism and Effective Death Penalty Act (Act) generally do not apply to cases such as this one filed prior to the Act’s effective date. Defendant, therefore, does not need to obtain a certificate of appealability to pursue this appeal.
-2- United States v. Prows, 118 F.3d 686, 691 (10th Cir. 1997). Because we conclude
that defendant has failed to allege any claim which, if proven, would entitle him
to § 2255 relief, we affirm the district court’s decision.
On appeal, defendant asserts that his trial counsel was constitutionally
ineffective in failing to (1) prepare defendant to testify; (2) object to the
prosecutor’s improper cross-examination of defendant; (3) object to hearsay
testimony relating to a conspiracy other than the one charged in this case;
(4) request a pretrial hearing on the expected testimony of defendant’s
co-conspirators in order to familiarize himself with the prosecution’s case and to
prepare for cross-examination of those witnesses; and (5) elicit exculpatory
testimony from two prosecution witnesses, Steve Oliver and Makund Gangwal.
Liberally construing defendant’s pro se § 2255 motion, see Haines v. Kerner, 404
U.S. 519, 520 (1972), we do not address his second and fourth appellate
arguments because he failed to raise those issues in the district court, and they do
not present any manifest error. See Sac & Fox Nation v. Hanson, 47 F.3d 1061,
1063 (10th Cir.) (absent manifest error, this court will not review issue raised for
first time on appeal), cert. denied, 116 S. Ct. 57 (1995); see also United States v.
Dixon, 1 F.3d 1080, 1082 n.2 (10th Cir. 1993) (§ 2255 motion).
On defendant’s first argument, our review of the trial record satisfies us
that trial counsel’s preparation and presentation of defendant’s testimony did not
-3- fall below an objective standard of reasonableness. See Strickland, 466 U.S. at
688; see also Andrews v. Deland, 943 F.2d 1162, 1193-94 (10th Cir. 1991).
With respect to defendant’s third argument, he has failed to allege with
sufficient specificity the hearsay testimony, relating to another alleged stock
manipulation conspiracy between defendant and the same people involved in this
UFO scheme, see Fed. R. Evid. 404(b), to which defense counsel should have
objected. See Hatch v. Oklahoma, 58 F.3d 1447, 1457 (10th Cir. 1995)
(allegations of counsel’s ineffective assistance must be specific and
particularized; conclusory allegations will not warrant hearing), cert. denied, 116
S. Ct. 1881 (1996). In any event, the record includes sufficient evidence
establishing the existence of that similar conspiracy to support the admissibility of
co-conspirators’ statements under Fed. R. Evid. 801(d)(2)(E). See United States
v. Sinclair, 109 F.3d 1527, 1533 (10th Cir. 1997) (although there is strong
preference for trial court to determine admissibility of alleged co-conspirator
statements in hearing outside presence of jury, there may be cases where evidence
establishing admissibility under Rule 801(d)(2)(E) is without doubt,
unimpeachable and uncontroverted so that no credibility or factual determination
is required).
Our response to defendant’s final argument is that he has failed to allege
any prejudice suffered from counsel’s purportedly deficient cross-examination of
-4- Steve Oliver. See Strickland, 466 U.S. at 697 (court need not determine whether
counsel’s performance was deficient before examining whether defendant was
prejudiced by alleged deficiencies). Defendant asserts that defense counsel
should have elicited testimony from Oliver explaining that the audit he performed
was for UFO’s fiscal year 1987, which ended on July 31 of that year, and that
UFO’s financial condition had improved by December 1987. Defense counsel did
elicit testimony tending to establish that UFO’s fiscal year ended in July. See 6
R. 41-43. Further, the record contained overwhelming evidence that defendant’s
company remained in very poor financial condition at the end of 1987.
Defendant argues that defense counsel should have cross-examined Makund
Gangwal, UFO’s bookkeeper, concerning a number of documents he signed as
UFO’s chief financial officer during his employment. Defendant, however, failed
to allege with specificity what documents Gangwal signed as UFO’s chief
financial officer, other than the SEC filing underlying count ten of the indictment.
See Hatch, 58 F.3d at 1457; see also Church v. Sullivan, 942 F.2d 1501, 1513
(10th Cir. 1991) (defendant bears burden of establishing how more extensive
cross-examination would have changed outcome of trial); United States v. Taylor,
832 F.2d 1187, 1198-99 (10th Cir. 1987) (rejecting ineffective assistance claim
where defendant failed to come forward with documents that he claimed would
exonerate him).
-5- Because defendant has failed to allege any claim which, if proven, would
entitle him to relief, the district court did not abuse its discretion in denying the
§ 2255 motion without conducting an evidentiary hearing.
AFFIRMED.
Entered for the Court
James K. Logan Circuit Judge
-6-