
USCA1 Opinion

	




        April 6, 1994           [NOT FOR PUBLICATION]                            UNITED STATES COURT OF APPEALS                                FOR THE FIRST CIRCUIT                                 ____________________        No. 93-1843                               H. RAYMOND KELLETT, JR.,                                     Petitioner,                                          v.                              UNITED STATES OF AMERICA,                                     Respondent.                                 ____________________                     APPEAL FROM THE UNITED STATES DISTRICT COURT                          FOR THE DISTRICT OF MASSACHUSETTS                   [Hon. Edward F. Harrington, U.S. District Judge]                                               ___________________                                 ____________________                                        Before                                 Breyer, Chief Judge,                                         ___________                            Selya and Cyr, Circuit Judges.                                           ______________                                 ____________________            H. Raymond Kellett, Jr. on brief pro se.            _______________________            A.  John Pappalardo,  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, Department of Justice, on brief for appellee.                                 ____________________                                 ____________________                      Per Curiam.  H.  Raymond Kellett, Jr., has appealed                      __________            the  district court's dismissal of his habeas petition on res            judicata grounds.   On  appeal,  the  government agrees  with            Kellett  that  the district  court  erred  in dismissing  the            petition.   It concurs that the doctrine of res judicata does            not  apply in  habeas  or postconviction  proceedings.   See,                                                                     ____            e.g.,  Sanders v. United States, 373 U.S. 1, 8, 14-15 (1963).            _____  _______    _____________            The parties also explain convincingly that the  court had not            resolved Kellett's earlier petition under 28 U.S.C.   2255 on            the merits.  The  government argues, however, that  remand is            not necessary  because Kellett's  petition is meritless  as a            matter of law.   After reviewing the petition and  the record            on appeal, we agree and therefore affirm.1                      In his  habeas petition,  Kellett claimed  that the            prosecutor had  concealed material exculpatory  evidence from            him, i.e., that  senior bank officers and directors had known            that false loan applications were being submitted to the bank            for approval.  On  appeal, he argues  that he would not  have            pled guilty to  the charge  of making false  statements to  a            federally insured bank in violation of 18 U.S.C.   1014 if he            had known of this evidence.  Kellett's argument appears to be            that  this  evidence  was  exculpatory  because  a  necessary                                            ____________________            1.  We hereby  grant the government's motion  to withdraw its            original  appendix and  to  substitute an  appendix excluding            Kellett's presentence report.  In determining this appeal, we            have  considered  only   the  contents  of   the  replacement            appendix.            element of  the crime to  which he pled  guilty was  that the            bank have relied on the false statements when it approved the            loans.  That  is, Kellett  says that no  crime under  section            1014 would have been  committed if the bank was  not actually            deceived  when it approved loans  on the basis  of false loan            documents.   Abundant  case  law to  the contrary  undermines            Kellett's claim.   See, e.g., United  States v. Norberg,  612                               __________ ______________    _______            F.2d 1, 4-5 (1st Cir. 1979) (the focus of the statute is that            a false statement was made for the purpose of influencing the                                                          ___________            bank  to take  certain action;  the cases  make clear  that a            bank's reliance  on the  false statement is  irrelevant); see                                                                      ___            also  United States v. Johnson,  585 F.2d 119,  125 (5th Cir.            ____  _____________    _______            1978)  (The statute  applies "not only  [to] a  defendant who            intends to defraud an  unwitting insured institution but also            [to]  a   defendant  who   intends  to  cooperate   with  the            institution in a scheme requiring him, with the institution's            knowledge, to  make false  statements for the  furtherance of            the scheme.   The [institution's]  awareness of the  fraud is            not relevant, for its existence is  not inconsistent with the            intent   to  influence  which  a  violator  of     1014  must            possess.").                        We  note  further  that,  under section  1014,  the            critical knowledge is that possessed  by the person making or            causing the false statement to be made.  See United States v.                                                     ___ _____________            Concemi,  957  F.2d 942,  951  (1st Cir.  1992)  (among other            _______                                         -3-            things, the  government must  show that the  defendant "acted            knowingly"  in making or causing a false statement be made to            a  federally insured  bank).   Although  Kellett suggests  on            appeal that  the bank actually prepared  the false documents,            by pleading guilty  he admitted  that he had  made or  caused            false statements to be  made and that he knew  the statements            were  false.  It is too late  for Kellett to deny the factual            basis of  the charge  to which  he pled  guilty.  See  United                                                              ___  ______            States  v. Morrison, 938 F.2d  168, 171 (10th  Cir. 1991) (in            ______     ________            sentencing   challenge,  defendant  could  not  assert  facts            contrary  to those  to  which  he  pled  guilty).    This  is            especially true since the "fact"  in question is what Kellett            himself knew about the accuracy of the statements in the loan            documents.    Kellett must  have known  at  the time  he pled            guilty  whether  or  not  he  knew  that  the loan  documents            contained  falsehoods  which  would  influence  the  bank  to            approve  the  loans,  and  the  state  of knowledge  of  bank            officers  or  directors  had  no bearing  on  that  question.            Therefore, any failure by the prosecutor to tell Kellett what            those officers or  directors knew would provide no  basis for            permitting Kellett to withdraw his guilty plea.                        Kellett suggests that the court  might have imposed            a more lenient sentence than it did if it had been aware that            senior  bank officers or directors had  known that false loan            applications were  being submitted to the  bank for approval.                                         -4-            He  claims that the court did  not sentence him with full and            accurate  information  and  that  his   sentencing  therefore            violated his due process  rights.2  The sentencing transcript            shows that the court believed that higher level bank officers            must  have  known that  false  loan  applications were  being            submitted  to the bank.  Thus,  Kellett's suggestion that the            court  was   unaware  of  this  fact   is  simply  incorrect.            Moreover, the sentencing  transcript indicates that both  the            probation  department  and  the  court took  this  and  other            factors  into  account  by reducing  by  one  level the  base            offense level assigned  to the loss amount in  Kellett's case            by the  Sentencing Guidelines.   See U.S.S.G.    2F1.1(b)(1).                                             ___            Accordingly, we  do not  think that the  prosecutor's alleged            failure  to disclose  evidence that  senior bank  officers or            directors  knew  of  the  ongoing  scheme  renders  Kellett's            sentencing constitutionally deficient.                        Kellett  further  claims   that  newly   discovered            evidence  substantiates his  claim of  selective prosecution.            As  the  government  points out,  this  court  has held  that            selective prosecution claims are  deemed waived if not raised            prior to trial.   See Tracey v. United States,  739 F.2d 679,                              ___ ______    _____________            682 (1st  Cir. 1984),  cert.  denied, 469  U.S. 1109  (1985).                                   _____________            Prior  to  his  trial,  Kellett sought  assurances  from  the                                            ____________________            2.  We assume for argument's sake, but without deciding, that            this claim survives dismissal on mootness grounds.                                          -5-            prosecutor   that   his  prosecution   was   not  politically            motivated,  evidencing his  awareness  that he  might have  a            selective prosecution  claim.  But  he did not  challenge his            prosecution on that basis by way of the requisite motion.  On            appeal, Kellett says that the prosecutor assured him that his            prosecution  was  not  politically   motivated.    The  newly            discovered evidence he  refers to, however, has nothing to do            with those  assurances, but at most  supports the proposition            that certain  mall developers, whom  he had opposed  prior to            his  prosecution,  sought  to  ensure the  success  of  their            project by making  political contributions.   Accordingly, we            find the selective prosecution claim to be waived.                      We find Kellett's remaining arguments to be without            merit for the reasons stated in the government's brief.                       Affirmed.                      ________                                         -6-
