     Case: 09-41206     Document: 00511550218         Page: 1     Date Filed: 07/25/2011




            IN THE UNITED STATES COURT OF APPEALS
                     FOR THE FIFTH CIRCUIT  United States Court of Appeals
                                                     Fifth Circuit

                                                                            FILED
                                                                           July 25, 2011

                                       No. 09-41206                        Lyle W. Cayce
                                                                                Clerk

UNITED STATES OF AMERICA,

                                                  Plaintiff – Appellee
v.

RICHARD JAMES TUCKER,

                                                  Defendant – Appellant



                   Appeal from the United States District Court
                        for the Eastern District of Texas
                              USDC No. 4:05-CV-17


Before JONES, Chief Judge, and BARKSDALE and GRAVES, Circuit Judges.
PER CURIAM:*
        In 2002, Richard James Tucker was convicted, following a jury trial, of one
count of securities fraud, 15 U.S.C. §§ 77q(a), 77x, and one count of mail fraud,
18 U.S.C. § 1341. The district court judge sentenced Tucker to a total of 120
months of imprisonment, three years of supervised release, and $15,219,965.37
in restitution. On direct appeal, Tucker claimed that the district court erred by
failing to provide a specific unanimity-of-theory instruction to the jury. United



        *
         Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.
R. 47.5.4.
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                                  No. 09-41206

States v. Tucker, 345 F.3d 320, 324 (5th Cir. 2003). This court, however,
affirmed Tucker’s conviction and sentence. Id. at 338.
      Subsequently, Tucker sought relief under 28 U.S.C. § 2255. Without
holding an evidentiary hearing, the magistrate judge recommended that
Tucker’s motion for relief be denied. The district court adopted the magistrate
judge’s recommendation and denied Tucker’s motion for habeas relief and
request for a certificate of appealability (“COA”). This court vacated the district
court’s decision and directed it to conduct an evidentiary hearing regarding
Tucker’s claims of ineffective assistance of trial and appellate counsel. Following
the evidentiary hearing, the district court reached the same conclusion. Tucker
now appeals the district court’s decision. Because we find that Tucker’s trial and
appellate counsel were not ineffective, we affirm the district court’s judgment.
                        FACTS AND PROCEEDINGS
      First Fidelity Acceptance Corporation (“FFAC”), a Nevada Corporation,
headquartered in Plano, Texas, was founded in 1991 for the purpose of
purchasing and selling automobile loans in the form of installment sales
contracts. After purchasing the loans, FFAC would “package” the loans and sell
them to financial institutions and large investors.
      In April 1992, Tucker joined FFAC as a consultant to assist FFAC in its
first private placement of asset-backed securities. Shortly thereafter, the FFAC
Board of Directors named Tucker Chief Executive Officer and Chairman of the
Board.    According to Tucker, from 1992-1996, FFAC’s assets totaled
$11,672,000.00.     The Government, however, contends that FFAC was
experiencing a financial crisis during this time.
      In 1996, FFAC created Automobile Receivables Corporation (“FFAC-ARC”)
for the purpose of establishing three investment trusts. FFAC-ARC established
these trusts with the goal of raising money for FFAC to borrow to make
investments in automobile loans. To generate capital, the trusts facilitated the

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offer and sale of certificates, with a minimum investment of $25,000.00. In order
to entice potential investors to purchase the trust certificates, Tucker drafted a
Private Placement Memorandum (“PPM”) for each trust which included a
description of the investment, the trust, and the trust’s relationship to FFAC.
The PPM also contained information regarding how FFAC would handle and use
the money invested in the trusts.
      In April 1998, FFAC’s Chief Financial Officer reported to FFAC’s Board
of Directors that the corporation was insolvent. Thereafter, the Board forced
Tucker to resign and brought in a team to review the corporation’s financial
records. After a review of FFAC’s records, it was determined that FFAC was
bankrupt. This team also examined the financial records of the three trusts. It
was determined that the three trusts held very few assets of value.
      On November 14, 2001, Tucker was indicted on two counts, charging him
with one count of securities fraud, 15 U.S.C. §§ 77q(a) and 77x, and one count of
mail fraud, 18 U.S.C. §1341. Count one alleged that from January 1996 through
March 1998, in the Eastern District of Texas and elsewhere, Tucker offered and
sold “securities by use of means or instruments or transportation or
communication in interstate commerce or by use of the mails” and
      (a) employed a device, scheme and artifice to defraud;

      (b) obtained money by means of untrue statements of a material fact
      and omitted statements of a material fact necessary in order to
      make the statements made not misleading, in the light of the
      circumstances under which the statements were made; and,

      (c) engaged in a transaction, practice, and course of business that
      operated as a fraud and deceit upon the purchasers.
      The Government alleged that Tucker’s “scheme and artifice to defraud”
was evinced by the various statements contained in the three PPMs.
Specifically, count one of the indictment averred that Tucker failed to disclose


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to investors that (1) their investments would be deposited directly into FFAC’s
operating accounts, rather than the trusts as promised in the PPMs; (2) the
proceeds would be used to pay FFAC’s operating costs; (3) previously invested
funds were not used as promised; and (4) the interest paid to some investors
came out of the proceeds from the sale of certificates of another trust. The
Government also stated that Tucker used the United States mail, interstate
telephone services, and commercial interstate couriers to deliver the fraudulent
PPMs. In addition, the Government listed thirteen individuals that allegedly
had been duped by Tucker, along with the dates and amounts of their
investments.
      Count two of the indictment charged Tucker with mail fraud under 18
U.S.C. §1341. Specifically, count two reiterated the allegations of count one, but
added that Tucker “knowingly and willfully” caused the investors “to place into
the United States mails, envelopes addressed to FFAC in Plano, Texas, such
envelopes containing checks and money orders as directed by TUCKER . . . , for
delivery . . . to FFAC’s headquarters in Plano, Texas . . . .” Count two also listed
the same thirteen investors that were listed in count one.
      Following a jury trial, Tucker was convicted on both counts. On July 19,
2002, the district court sentenced Tucker to a total of 120 months
imprisonment,1 three years of supervised release and ordered Tucker to pay
$15,219,965.37 in restitution.
      On appeal, Tucker argued, inter alia, that the district court failed to
include a specific unanimity-of-theory instruction in the jury instructions. We
found that Tucker could not demonstrate, under plain error review, that the
district court’s failure to instruct the jury on a specific unanimity-of-theory
amounted to clear error. Tucker, 345 F.3d at 338. Therefore, we affirmed. Id.

      1
         The district court sentenced Tucker to 60 months on each count and ordered the
sentences to run consecutively.

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       On January 14, 2005, Tucker sought relief under 28 U.S.C. § 2255,
presenting inter alia multiple claims of ineffective assistance of trial and
appellate counsel. Without conducting an evidentiary hearing, the magistrate
judge recommended that Tucker’s § 2255 motion be denied and that a COA be
denied.2 Following a de novo review, the district court adopted the magistrate
judge’s report, denied Tucker’s § 2255 motion, and denied a COA. Tucker
appealed.
       On April 28, 2008, our court vacated the district court’s judgment, granted
Tucker’s COA application in part and remanded to the district court for an
evidentiary hearing to determine whether trial and appellate counsel rendered
ineffective assistance of counsel. On remand, the magistrate judge conducted an
evidentiary hearing and recommended that Tucker’s § 2255 motion be denied.
After Tucker filed his objections to the report, the magistrate judge issued a
supplemental report and recommendation, recommending that Tucker’s motion
for summary judgment and claim of ineffective assistance of appellate counsel
be denied. Tucker again filed objections to the magistrate judge’s report and
recommendation. Following a de novo review, the district court overruled
Tucker’s objections, adopted the magistrate judge’s report, denied Tucker habeas
relief and denied a COA. Tucker timely appealed.
       This court granted Tucker a COA on only two issues. Specifically, this
court granted a COA regarding Tucker’s claims that (1) his trial counsel was
ineffective in failing to request a specific unanimity-of-theory jury instruction
and (2) his appellate counsel was ineffective for failing to adequately brief the
issue of whether the district court’s failure to instruct the jury on a specific
unanimity-of-theory satisfied the requirements of plain error.



       2
         Pursuant to a Standing Order, certain civil suits are referred at the time of the filing
equally among magistrate judges. See 28 U.S.C. §§ 626(b)(1) and (3).

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                           STANDARD OF REVIEW
      On requests for § 2255 relief, we review the district court’s findings of fact
for clear error and issues of law de novo. Woodfox v. Cain, 609 F.3d 774, 788-789
(5th Cir. 2010). The clear error standard applies equally to findings by the
district court as it does to proposed findings by a magistrate judge adopted by
the district judge. United States v. Cates, 952 F. 2d 149, 153 (5th Cir. 1992). “‘An
ineffective assistance of counsel claim presents a mixed question of law and
fact.’” Richards v. Quarterman, 566 F.3d 553, 561 (5th Cir. 2009) (quoting Ward
v. Dretke, 420 F.3d 479, 486 (5th Cir. 2005)). “When examining mixed questions
of law and fact, [we] employ[] ‘a de novo standard by independently applying the
law to the facts found by the district court, as long as the district court’s factual
determinations are not clearly erroneous.’” Richards, 566 F.3d at 561 (quoting
Ramirez v. Dretke, 396 F.3d 646, 649 (5th Cir. 2005)). “A finding is clearly
erroneous only if it is implausible in the light of the record considered as a
whole.” Rivera v. Quarterman, 505 F.3d 349, 361 (5th Cir. 2007) (citation and
internal quotation marks omitted).
                                  DISCUSSION
      Tucker challenges the district court’s determination that his trial counsel
was not ineffective when he failed to specifically request a unanimity-of-theory
jury instruction. Tucker further challenges the district court’s determination
that his appellate counsel was not ineffective for failing to adequately brief the
issue of whether the district court’s failure to charge the jury with a specific
unanimity-of-theory instruction satisfied the requirements of plain error.
I. Ineffective Assistance of Trial Counsel
      The Sixth Amendment to the United States Constitution guarantees a
defendant in a criminal prosecution the right to effective assistance of counsel.
U.S. Const. amend. VI. In order to make a showing that the defendant was
denied effective assistance of counsel, the defendant must meet the two-prong

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test set forth in Strickland v. Washington, 466 U.S. 668, 687 (1984). Under the
Strickland test, the defendant must show that his counsel’s performance was
deficient and that the deficient performance prejudiced his defense. Id. In
making its determination, a court must take steps to “eliminate the distorting
effects of hindsight” and “evaluate the conduct from counsel’s perspective at the
time.” Id. at 689. Under Strickland, this court can look at either prong first; “if
either one is found dispositive, it is not necessary to address the other.” United
States v. Webster, 392 F.3d 787, 794 n.12 (5th Cir. 2004) (quoting Buxton v.
Lynaugh, 879 F.2d 140, 142 (5th Cir. 1989)).
       The first prong of Strickland requires that counsel’s performance fall
below an objective standard of reasonableness. Strickland, 466 U.S. at 688. For
counsel’s performance to be objectively unreasonable, counsel’s errors must be
so serious that he is not functioning as the “counsel” guaranteed by the Sixth
Amendment. Id. at 690. It is not the province of this court, however, to second
guess an attorney’s strategic decisions; rather, we “must indulge a strong
presumption that counsel’s conduct falls within the wide range of reasonable
professional assistance . . . .” Id. at 689. With regard to the prejudice prong, the
court must determine whether the “errors were so serious as to deprive the
defendant of a fair trial, a trial whose result is reliable.” Id. at 687. Put simply,
to establish the prejudice prong there must be a reasonable probability that, but
for counsel’s errors, the jury would have reached a different conclusion. Id. at
694.
       On direct appeal, Tucker argued for the first time that the district court
erred by failing to include a specific unanimity-of-theory jury instruction.
Tucker, 345 F.3d at 336. Tucker claimed that each count of the indictment listed
thirty mailings, and that each listing could support a separate act of securities
fraud or mail fraud. Thus, Tucker argued that his counsel’s failure to request
a specific unanimity-of-theory instruction was objectively unreasonable, and that

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the jury’s guilty verdict might not have been unanimous as to which mailing
Tucker caused – i.e., prejudicially ineffective. Id. Because Tucker raised this
issue for the first time on appeal, our court reviewed for plain error. Id. at 333;
see also Fed. R. Crim. P. 52(b). Based on Fifth Circuit precedent this court
concluded that the district court did not commit plain error by omitting a
unanimity-of-theory instruction. Id. at 336-37.
      This court’s precedent supporting its decision on direct appeal is relevant
to Tucker’s present § 2255 appeal. This court primarily relied upon United
States v. Gipson, 553 F.2d 453 (5th Cir. 1977) and United States v. Holley, 942
F.2d 916 (5th Cir. 1991). While Gipson established that a defendant not only
has a right to a unanimous verdict, but also has the right to unanimity in the
theory of which actions constituted the crime charged, Tucker’s reliance on
Gipson is misplaced. Gipson, 553 F.2d at 457. Gipson differed from the present
case because the trial judge improperly instructed the jurors that they could
convict Gipson as long as each of them found that Gipson had committed one of
the six enumerated actions prohibited by the statute. Id. at 458. Furthermore,
Gipson explained that in cases where the trial judge does not misinstruct the
jury, “absent competent evidence to the contrary, a court has no reason to
assume that an inconsistent or compromise verdict is not unanimous, and
therefore has no justification for inquiring into the logic behind the jury’s
verdict.” Id. at 457 (internal citation omitted). This presumption was repeated
in Holley.
      Like Gipson, Holley found that “a general unanimity instruction will
ensure that the jury is unanimous on the factual basis for a conviction, even
where the indictment alleges numerous factual bases for criminal liability.”
Holley, 942 F.2d at 925-26 (citation and internal quotation marks omitted). This
rule fails only where “there exists a genuine risk that the jury is confused or that
a conviction may occur as the result of different jurors concluding that a

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defendant committed different acts.” Id. at 926 (citation and internal quotation
marks omitted). In Holley, before the instructions were submitted to the jury,
Holley objected to the instructions because they did not require all of the jurors
to agree “in the knowing falsity of at least one particular statement.” Id. at 929.
The Holley court agreed finding the indictment to be duplicitous, and concluded
that there was a “reasonable possibility that the jury was not unanimous with
respect to at least one statement in each count.” Id. Therefore, this court
ordered a new trial. Id.
       Both Gipson and Holley provide an outline for a defendant’s right to a
unanimous verdict, and indicate that a unanimity-of-theory instruction is a
constitutional right only when “evidence to the contrary” undermines the
expectation that a general unanimity instruction suffices. This is true “even
where an indictment alleges numerous factual bases for criminal liability.” A
habeas petitioner claiming ineffective assistance of counsel, therefore, must
allege more than a duplicitous indictment.                 He must identify facts and
circumstances that raise “a genuine risk” of juror confusion.                           These
circumstances exist, according to Holley, where one count of the indictment
includes offenses that would require the government to prove dissimilar facts.
Tucker, 345 F.3d at 336-37.
           Other than his “bare assertion that the error ‘was plain and substantially
prejudicial to him,’” Tucker has failed to identify facts and circumstances that
juror confusion was likely.3 This court has previously stated as much in ruling
on Tucker’s direct appeal: “Tucker does not corroborate his claim of prejudicial
error with a modicum of evidence tending to show that the jury was confused or
possessed any difficulty reaching a unanimous verdict.” Id.; see also Gipson, 553


       3
         The jury heard both a general unanimity instruction – “[t]o reach a verdict, all of you
must agree. Your verdict must be unanimous” – and an instruction that, to convict, it needed
to find Tucker guilty of each element of the offenses beyond a reasonable doubt.

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F.2d at 457 (no error where appellant does not corroborate claim of prejudicial
error with evidence that the jury was confused in reaching unanimous verdict).
Because Tucker has failed to make the requisite showing, we find that the
district court’s finding that counsel’s performance was not ineffective despite his
decision not to request a unanimity-of-theory instruction was not clearly
erroneous.
      Tucker further contends that the magistrate judge’s proposed findings
were clearly erroneous. The magistrate judge’s proposed finding was that the
“[m]ovant has shown that there could have been a remote possibility that jurors
could not have been unanimous in their decision concerning both mailing and
materiality, he has wholly failed to show any evidence that they were, in fact,
confused, in disagreement, or not unanimous in their decision.” Tucker argues
that people other than the investors themselves might have placed the
documents in the mail, and therefore no juror could have convicted him for one
of the thirty offenses listed in the indictment. This argument fails as a matter
of law. “The test to determine whether the defendant caused the mails to be
used is whether the use was reasonably foreseeable.” United States v. Massey,
827 F.2d 995, 1002 (5th Cir. 1987) (citation and internal quotation marks
omitted). It is of no consequence that a secretary or broker who was not named
in the indictment actually placed the documents or payments in the mail on the
investor’s behalf. Criminal liability attaches when a person “knowingly or
willfully” causes another to use the United States mail and commercial
interstate carriers to deliver checks and negotiable instruments in furtherance
of a scheme or artifice to defraud. See 18 U.S.C. § 1341. Under Massey, an
interpretation that Tucker could foresee his investors using the mails, but not
their staff doing so would undoubtedly be unreasonable. Therefore, despite
Tucker’s argument for juror confusion, the magistrate judge’s proposed finding
that no confusion existed was not clearly erroneous.

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      Similarly, Tucker’s investor-by-investor argument is also inappropriate
to a claim based on the lack of a unanimity-of-theory instruction. In Holley, a
unanimity-of-theory instruction was necessary because the Government’s case
required proving “dissimilar facts” for each of the offenses contained in a single
count of the indictment. 942 F.2d at 928. Without a doubt, Holley’s duplicitous
indictment casts doubt on the jury’s ability to reach a unanimous verdict. Here,
however, the Government’s case requires proving similar facts for each of the
offenses identified in each count of the indictment.       To no avail, Tucker
attempts to cast doubt on the jury’s verdict by highlighting small differences
between the investors (e.g., Mr. Kiyomura relied on his broker to mail his check,
while Mr. Eichinger might have relied on his secretary). Contrary to Tucker’s
assertion, a jury could reach a unanimous verdict that Tucker “set forces in
motion that foreseeably resulted in such use [of the mails].”
      “[A]bsent competent evidence to the contrary,” courts should not doubt
that jurors understood the general unanimity instruction. Gipson, 553 F.2d at
457. Thus, even where an indictment includes multiple offenses within a given
count, a unanimity-of-theory instruction is not constitutionally necessary.
Holley, 942 F.2d at 925-26. Tucker’s trial attorney, therefore, did not engage
in unreasonable performance by failing to seek an instruction on the unanimity
of the jury’s theory. Trial counsel does not fall below an objective standard of
reasonableness by failing to request a jury instruction to which the defendant
is not entitled.
      When presented with an ineffective assistance of counsel claim, this court
need not address both stages of the Strickland inquiry if an insufficient showing
is made as to one. Scheanette v. Quarterman, 482 F.3d 815, 815-20 (5th Cir.
2007).   As discussed supra, Tucker has failed to establish that counsel’s
performance was deficient. Therefore, because Tucker’s trial counsel did not


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fall below an objective standard of reasonableness by failing to seek an
instruction on the unanimity of the jury’s theory and, thus, was not ineffective,
we need not address the prejudice prong under Strickland.
II. Ineffective Assistance of Appellate Counsel
      Tucker also contends that his appellate counsel (on direct appeal) was
ineffective for failing to persuade this court that the omission of a unanimity-of-
theory instruction was plain error. This argument rests on Tucker’s assumption
that “[c]learly, the District Court’s unanimity instruction and mailing
instruction were erroneous . . . .” Tucker argues that this court’s refusal to find
plain error must have resulted from appellate counsel’s sub-par performance.
See Tucker, 345 F.3d at 336-37. As explained above and in this court’s earlier
decision, Tucker was not entitled to a unanimity-of-theory instruction. His
appellate counsel, therefore, did not engage in unreasonable performance by
failing to brief the issue of whether the omission of the instruction was plain
error. Even assuming that a unanimity-of-theory instruction would have been
appropriate, appellate counsel did not render constitutionally infirm
representation by foregoing the instruction. The Supreme Court has recognized
“the importance of having the appellate advocate examine the record with a
view to selecting the most promising issues for review.” Jones v. Barnes, 463
U.S. 745, 752 (1983). In the present case, Tucker’s appellate counsel presented
the unanimity argument, and this court rejected it. In this court’s opinion,
nothing suggests that appellate counsel’s performance was to blame.
                                CONCLUSION
      For the foregoing reasons, Tucker’s trial counsel was not ineffective
despite the decision not to request a specific unanimity-of-theory jury
instruction. Likewise, Tucker’s appellate counsel was not ineffective for failing




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to persuade this court that the jury instructions were incorrect. Therefore, the
judgment of the district court is AFFIRMED.




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