In the
United States Court of Appeals
For the Seventh Circuit

No. 00-3774

Michael Reeves,

Petitioner-Appellant,

v.

United States of America,

Respondent-Appellee.

Appeal from the United States District Court
for the Northern District of Illinois, Eastern Division.
No. 99 C 4537--James B. Zagel, Judge.

Argued May 14, 2001--Decided June 22, 2001


  Before Bauer, Rovner, and Diane P. Wood,
Circuit Judges.

  Bauer, Circuit Judge. Michael Reeves
filed a petition under 28 U.S.C. sec.
2255 challenging his conviction as
obtained in violation of his Sixth
Amendment right to effective assistance
of counsel. The district court denied the
petition because Reeves failed to
demonstrate prejudice. Reeves appeals,
and we review the denial of relief under
sec. 2255 de novo. See Blacharski v.
United States, 215 F.3d 792, 794 (7th
Cir. 2000).

BACKGROUND

  Reeves, represented at trial by attorney
Christopher L. Bohlen (and L. Patrick
Power, whose nominal role will not be
discussed), was convicted by a jury in
June of 1998 of mail fraud under 18
U.S.C. sec. 1341 for using the mails in a
scheme to defraud his employer, Cherry
Communications, Inc. ("CCI"), of money
for work on two projects that he failed
to complete and for depriving CCI of
honest services by not disclosing his
self-dealing.
  At trial the following evidence was
adduced. CCI was a long-distance
telephone company headquartered in
Westchester, Illinois owned by James
Elliot. Elliot and CCI’s President,
Michael Dyer, wanted to expand the
business by constructing switch sites to
route calls on its long-distance network.
Lacking the skill to do this themselves,
they hired Reeves as Vice President of
Engineering in January of 1995. Reeves’
resume indicated that he had completed
two years at MIT and two years at Florida
State University, earning a B.S. in
electrical engineering. Elliot and Dyer
bragged to others that Reeves had a
"double E from MIT." In reality, while
Reeves had taken some classes, he never
earned a degree.

  To purchase equipment to construct the
switch sites, Reeves was instructed to
submit a check requisition form to Elliot
for approval and then to CCI’s
comptroller, Cherrie Marks-Pozniak, who
would issue a check. On July 6, 1995,
Reeves submitted a check requisition form
to Elliot for the purchase of $6,627
worth of equipment to be installed at the
South Federal Street switch site in
Chicago from a company named Electronic
Products located at 6645 La Pas,
Indianapolis, Indiana 60164. Elliot
approved the request and Marks-Pozniak
gave Reeves a check payable to Electronic
Products, whereupon it was endorsed with
a typewriter and deposited in a bank
account Reeves had opened under the name
Electronic Renaissance.

  On July 14th, Reeves submitted another
form to Elliot for more equipment for the
South Federal Street site payable to
Electronic Products for $15,172. The
address listed for Electronic Products
this time though was 6264 La Pas,
Indianapolis, Indiana 60155. Furthermore,
an invoice submitted with the check
requisition form listed yet another
address for Electronic Products--P.O. Box
307, Bradley, Illinois--which had been
rented by Reeves under the name
Electronic Renaissance. The invoice also
stated that the equipment was to be
billed and shipped to CCI at 6264 La Pas,
Indianapolis, Indiana 60155. Despite
these inconsistencies, Elliot approved
the request, and again, a check was given
to Reeves, endorsed with a typewriter,
and deposited in the Electronic
Renaissance bank account.

  In August, Reeves recommended that CCI
buy alarm systems to secure its unmanned
switch sites. Elliot and Dyer approved
the purchase of the systems for over
$88,000, to be paid in four monthly
installments. Reeves submitted a form for
the first installment, to be paid to a
company named Digital Alarm Products at
P.O. Box 172, Bradley, Illinois. Marks-
Pozniak asked Reeves if she should
contact the vendor to set up a payment
schedule. Reeves insisted that he ask
himself because the vendor was "touchy"
and "didn’t like to talk to just
anybody." CCI issued the first
installment check on September 7th for
$22,173. Reeves was given the check, it
was endorsed with a typewriter and
deposited in the Electronic Renaissance
bank account.

  On September 8th, although CCI was
unaware of Reeves’ dealings, he was fired
for poor job performance. Still ignorant,
on October 18th, CCI issued a $22,173
check for the second installment. Since
Reeves was gone, CCI mailed it to the
P.O. Box listed on the invoice, which
unbeknownst to CCI was rented by Reeves.
As before, the check was endorsed with a
typewriter and deposited in the
Electronic Renaissance bank account.

  Robert Carrabis, who became Vice
President of Engineering after Reeves’
termination, noticed that the alarm
system had never been delivered, so he
called Digital Alarm Products to inquire
and heard Reeves’ voice on the company’s
answering machine. Finally realizing that
something was amiss, CCI hired a private
investigator and informed the police.
They discovered that neither the Illinois
nor Indiana Secretary of State offices
had records for companies named
Electronic Products or Digital Alarm
Products.

  At trial, the government charged that
Reeves’ scheme was to submit false forms
from phony equipment suppliers to obtain
money from CCI to satisfy his personal
debt. To prove its theory, the government
offered the testimony of Elliot, Dyer,
Carrabis, Marks-Pozniak, and a postal
inspector who attested that the addresses
given for Reeves’ companies were
fictitious. A bank employee also
introduced the Electronic Renaissance
account records and a summary chart of
expenditures made from the account with
money from CCI. It was also shown that
Reeves’ bank account had been overdrawn
several times in the months before he
undertook this scheme, and in June of
1995 his balance was $8.17. The
government also proved that checks
written on the Electronic Renaissance
account with CCI’s money were issued to,
among others, American Express, Kankakee
Bell Credit Union for a loan payment,
Ameritech, Dr. Martello, Reeves himself,
and cash. Other documentary evidence
included the check requisition forms and
invoices submitted by Reeves and his 1995
federal income tax return showing that he
did not report income realized by his
companies from CCI.

  Reeves’ attorney cross-examined the
government’s witnesses. Reeves did not
take the stand or present witnesses in
his defense. Reeves’ defense was that the
government failed to meet its burden of
proof because Elliot’s testimony was
incredible in light of his prior criminal
convictions, and the government had
failed to prove that any check had been
mailed using the U.S. Postal Service.

  After Reeves was convicted and
sentenced, he filed a direct appeal,
voluntarily dismissed it, and then filed
a sec. 2255 petition. The district court
permitted discovery, held an evidentiary
hearing, and heard oral arguments on
Reeves’ sec. 2255 petition.

  At the evidentiary hearing on April 14,
2000, Reeves testified that Bohlen met
with him three times prior to trial-- in
September of 1997, and in February and
May of 1998-- and that the brief meetings
were not substantive. Bohlen testified
that he did not take notes of these
meetings and could not recall what had
been discussed. At the first meeting
Reeves told Bohlen to visit the South
Federal Street site because he had
purchased and installed equipment there.
Bohlen confirms that Reeves said this,
but admits that he did not go see whether
the equipment was indeed there. Reeves
also told Bohlen that some of the alarm
system equipment was at his home, but
again, Bohlen did not investigate the
claim. Reeves further said to Bohlen that
he had partially performed on the alarm
system project by diagraming a plan and
gathering parts, which were still in his
garage. He claimed that he would have
finished if he had received the final two
installment checks. Instead of
investigating, Bohlen asked Reeves for
documentation of the purchases, but
Reeves did not have any. Bohlen admitted
that in preparing for trial he did not
interview anyone except Reeves and told
him not to testify.

  In support of his contention that he had
fully performed the South Federal Street
job and partially performed the alarm
system project, Reeves offered a report
of a private investigator who visited the
South Federal Street site and Reeves’
garage, accompanied by Reeves. The report
said that there was equipment at the
South Federal Street site, which Reeves
identified as the equipment he had
purchased. It also stated that there was
electrical equipment in Reeves’ garage.
Reeves also offered copies of a
memorandum he had written to Dyer dated
September 6th, two days before he was
fired, detailing the work he had
completed and of a letter he wrote to
Elliot in November, offering to complete
the alarm project despite his
termination. Reeves had given Bohlen
these documents, but they were not used
at trial. Furthermore, Reeves testified
that Elliot asked him to purchase
equipment through his companies because
CCI was having financial difficulties.
Reeves claimed that his companies had
been in business for many years and were
not fictitious, and he was ignorant of
the fact that he had to register with the
Secretary of State.

  Finally, Reeves testified about his
personal background, specifically that he
had served in the military for ten years
where he enjoyed FBI and top-security
clearance and had worked for several
telecommunications companies before CCI.
He explained that he took some classes at
MIT over a two-year period, but denied
that he told Elliot or Dyer that he was
a "double E from MIT."

  On cross-examination, Reeves said that
he had no documentation, such as invoices
or checks, to show that he bought
equipment for CCI. He admitted that he
used fictitious addresses on the check
requisition forms. He could not explain
why he was the only signatory on the
Electronic Renaissance bank account since
he claimed that the company was owned by
someone else. Further, the government
offered evidence admissible under Fed. R.
Evid. 404(b), namely that Reeves had made
false statements in bank loan
applications, in his resume to CCI, in
his 1995 federal income tax return, and
in the unemployment application he filed
with the State after he was fired from
CCI.

  Reeves contends that the new evidence
supports his defense that he did not
intend to defraud CCI. The district court
saw it otherwise and denied the sec. 2255
petition. The court noted that it found
Bohlen’s "performance in preparing for
this trial to be dangerously and
inexcusably close to the line of
ineffective assistance, if not over it.
While the law presumes an attorney’s
competence and reasonableness, I can find
no reasonable trial strategy in failing
to investigate a case at all." However,
the district court declined to hold that
Bohlen’s performance, even if
ineffective, prejudiced Reeves’ case.

  The district court summarized that all
of the "new" evidence emanated from
Reeves or the investigator, whose work
was based on what Reeves told him. For
example, the memorandum and letter were
written by Reeves. No other witnesses,
such as a vendor, testified that Reeves’
businesses were legitimate or that he had
purchased equipment for the projects. No
invoices, receipts or checks were
produced to verify that he had purchased
equipment. No explanations were given as
for why Reeves used fictional addresses
on check requisition forms. The district
court found that Reeves’ self-serving
evidence did not undermine confidence in
the outcome. The court wrote:
"Ultimately, all of the additional
evidence comes from Reeves himself uncor
roborated . . . and given his own
credibility problems, its submission to
the jury would not have produced a
different result."

  The district court also found that the
additional impeachment evidence for
Elliot, namely the fact that he owned CCI
when it went bankrupt and had judgments
entered against it for nonpayment of
taxes, would not have damaged his
credibility beyond that already done at
trial. Elliot’s prior convictions had
already been testified to in order to im
peach him at trial, so the jury weighed
his two convictions for mail fraud and
one conviction for providing false infor
mation to a federal law enforcement
officer in assessing his credibility.
Further, the jury heard and considered
the parties’ stipulation that CCI had
filed a voluntary bankruptcy petition at
the time of trial. The district court
reasoned that since the defense offered
no motive for Elliot to lie, there was no
reasonable probability that a jury would
assess Elliot’s credibility differently.

  The district court concluded that:
"[h]aving personally heard Reeves testify
at the evidentiary hearing, and
remembering the evidence as it came in at
trial, I do not agree that Reeves’
testimony--had it been offered--alone
would have changed the verdict." The
court so held because Reeves had "too
many empty explanations for the many
oddities in his business practices," the
"fictional nature of the addresses, their
mix-and-match nature, and his failure to
register any of them with the Secretary
of State, all undermines his testimony
about the businesses’ legitimacy," and
Reeves’ explanations were "not persuasive
evidence of his innocence." The court
also added that the government had
effectively cross-examined Reeves. Based
on all of the foregoing, the district
court denied Reeves’ petition.

DISCUSSION

  Under Strickland v. Washington, Reeves
bears the burden of showing that his
counsel’s performance fell below an
objective standard of reasonableness and
outside the wide range of professionally
competent assistance. See 466 U.S. 668,
687 (1984). He must also show prejudice,
which means showing that but for his
counsel’s unprofessional errors, there is
a reasonable probability that the result
in his case would have been different.
See id. at 694. A reasonable probability
is a probability sufficient to undermine
confidence in the outcome, although
merely some conceivable effect of the
errors on the outcome is not enough. See
id.

  Reeves’ first argument is that the
district court applied the wrong legal
standard to his case. In the beginning,
the district court articulated the proper
standard; Reeves’ contention is that
after the district court mouthed the
correct standard it turned around and
held him to a higher one. Reeves contends
that the district court misapplied the
prejudice prong of Strickland by (1)
requiring him to prove that he was
actually innocent, (2) requiring him to
prove that the outcome would have more
likely than not been different but for
his attorney’s errors rather than just a
reasonable probability of a different
outcome, and (3) resting its decision
solely on Reeves’ credibility instead of
the totality of the circumstances. Reeves
misreads the court’s opinion.

  While Reeves is correct that requiring
a defendant to prove actual innocence or
that the outcome would have more likely
than not been different would be an
incorrect articulation or application of
the prejudice test, see generally Glover
v. United States, 121 S. Ct. 696, 700-01
(2001), Williams v. Taylor, 120 S. Ct.
1495, 1513-14 (2000), we find that after
giving the district court’s opinion a
thoughtful read that there is not a
scintilla of support for Reeves’ analysis
of the district court’s opinion. It is
enough to say that Reeves’ appellate
argument quotes the words chosen by the
district court out of context. The very
heart of the opinion was an examination
of the totality of the evidence to
determine whether the court’s confidence
in the jury’s verdict was undermined by
the new evidence. The district court
concluded that his confidence in the
verdict remained intact.

  Reeves’ second argument is that if the
district court had applied the correct
standard it would have found that his
case had been prejudiced. We disagree.
Reeves paints the government’s case as
based on weak circumstantial evidence and
Elliot’s incredulous testimony. Given the
weakness of the case against him, he
asserts that if he had testified a
different outcome may well have resulted
because the jury would have been asked to
resolve a credibility contest between him
and Elliot. Not so. The case would not
have become merely a "he said, he said"
if Reeves had testified; not only did
Dyer and Marks-Pozniak corroborate
Elliot’s testimony, but the thrust of the
government’s case was documentary
evidence. In contrast, Reeves offered
self-serving statements and documentary
evidence of little relevance. The
memorandum and letter offered by Reeves
shed little light on the matter; they
were written by Reeves who had an
overwhelming interest in covering up what
he was or was not doing during his employ
at CCI.

  Reeves also complains that the district
court improperly based its decision
solely on his credibility. He asserts
that the district court should not have
decided whether it found Reeves credible,
but rather should have decided whether
confidence in the jury’s verdict had been
undermined. But, we read the opinion as
saying exactly the latter--after hearing
the evidence presented by the defendant,
the court’s confidence in the outcome had
not been undermined. This is quite
different from the court saying that it
did not think that a jury would believe
Reeves. Moreover, the district court
lingered on Reeves’ credibility as a
witness because, not only was it the bulk
of the new evidence, but one of Reeves’
claims was that Bohlen was deficient for
not allowing him to testify. In response
the court evaluated whether the new
evidence presented through Reeves’ testi
mony had a reasonable probability of
altering the result. The court’s opinion
carefully assessed all of the new
evidence, including Reeves’ testimony,
and found that it offered little, as do
we.

CONCLUSION

  The district court’s denial of Reeves’
sec. 2255 petition is hereby Affirmed.
