                                                                           F I L E D
                                                                    United States Court of Appeals
                                                                            Tenth Circuit
                     UNITED STATES COURT OF APPEALS
                                                                         December 1, 2005
                            FOR THE TENTH CIRCUIT
                                                                           Clerk of Court

    UNITED STATES OF AMERICA,

                Plaintiff-Appellee,

    v.                                                    No. 04-1480
                                                    (D.C. Nos. 04-N-241 and
    DOUGLAS M. MURPHY,                                   99-CR-418-N)
                                                           (D. Colo.)
                Defendant-Appellant.


                             ORDER AND JUDGMENT           *




Before LUCERO , ANDERSON , and BRORBY , 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)(2); 10th Cir. R. 34.1(G). The case is

therefore ordered submitted without oral argument.

         Hoping to ameliorate the result of a conviction by a federal jury on one

count of conspiracy, five counts of mail fraud, two counts of securities fraud, and



*
      This order and judgment is not binding precedent, except under the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.
one count of money laundering, a verdict affirmed by this court on direct appeal,

see United States v. Aptt , 354 F.3d 1269 (10th Cir. 2004), petitioner Douglas

Murphy filed this 28 U.S.C. § 2255 motion to set aside his convictions alleging

that he had been the victim of ineffective assistance of counsel and was

prejudiced thereby. The district court held a hearing on the § 2255 motion and

denied both the requested relief and a certificate of appealability. Mr. Murphy

appeals the denial of his § 2255 motion. This court has previously granted a

certificate of appealability, and we now affirm.

      Mr. Murphy, his brother, Mr. Bruce Murphy, and Mr. John Aptt were all

involved in Financial Instruments Group, a Ponzi scheme which ultimately

collapsed in the late 1990’s costing losses to investors in excess of eleven million

dollars. Mr. Aptt and Mr. Bruce Murphy pleaded guilty to counts of mail fraud

and money laundering and were sentenced to nine years and ten years in prison,

respectively. Mr. Douglas Murphy went to trial and was found guilty. He was

sentenced to just over eight years imprisonment.

      In his § 2255 motion, Mr. Murphy asserted that it was ineffective assistance

of counsel for his trial attorney to stipulate to the admission of all the

government’s exhibits, particularly to exhibit 352, a memo addressed to “John”

from “Doug and Bruce” in which the authors outlined a business plan for the

company. The plan included forming a new corporation in order to “clean up past


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securities compliance sins, and gain relief from the onerous debt repayment

structure.” Aplt. App. Vol. I at 134. The new corporation additionally would

raise new capital and would “go back in the market under claimed exemptions,

with enough disclosure to keep regulators at bay.”    Id. at 135. The memo

cautioned that “[s]ecurities compliance comes at a very high cost, both in terms of

dollars and in terms of its effect on the ability of Financial Instruments to

continue to conduct business. Securities compliance also means full disclosure of

all financial details, past, present and future, and full disclosure of any SEC

investigations or inquiries.”   Id. at 134. The memo laid out a “roadmap,”

explaining how the business could “avoid paying the high price for past errors,

AND show[] the way to capitalize on the positives.”    Id.

       The exhibit was used by both sides during trial and in their closing

arguments, although the government used it more extensively, referring to it as

the “smoking gun” id. Vol. III at 853, and as direct evidence of Mr. Murphy’s

criminal intent, id. at 813, 819. The defense urged the jury to view exhibit 352 as

Mr. Murphy’s attempt to convince Mr. John Aptt to make “full and fair

disclosure” and “to fully comply with SEC regulations and all securities laws. . . .

[Mr. Murphy] wanted John to get the ship floating right. He wanted him to do the

right thing.”   Id. at 843. Because Mr. Aptt refused to act on this advice, the

defense argued, Mr. Aptt and not Mr. Murphy was the culprit.       Id.


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       In the district court and on appeal, Mr. Murphy argues that his trial counsel

was ineffective under Strickland v. Washington , 466 U.S. 668 (1988), for

allowing exhibit 352 to come into evidence, and he offers alternative theories for

how it could have been kept from the jury. He also argues that he was prejudiced

by trial counsel’s ineffective performance.

       “Ineffective assistance under      Strickland is deficient performance by counsel

resulting in prejudice, with performance being measured against an objective

standard of reasonableness under prevailing professional norms.”        Rompilla v.

Beard , 125 S. Ct. 2456, 2464 (2005) (citations and internal quotation marks

omitted). In order to prevail on his claim of ineffective assistance, Mr. Murphy

must show that his attorney “made errors so serious that counsel was not

functioning as the ‘counsel’ guaranteed the defendant by the Sixth Amendment,”

Strickland , 466 U.S. at 687, and that (2) counsel’s performance prejudiced him in

that “there is a reasonable probability that, but for counsel’s unprofessional

errors, the result of the proceeding would have been different,”     id. at 694. When

reviewing an ineffective assistance of counsel claim, we must make every effort

“to eliminate the distorting effects of hindsight, to reconstruct the circumstances

of counsel’s challenged conduct, and to evaluate the conduct from counsel’s

perspective at the time.”   Id. at 689.




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       Guided by Strickland, we proceed under the strong “presumption that

‘counsel’s conduct falls within the wide range of reasonable professional

assistance; that is, . . . the presumption that, under the circumstances, the

challenged action might be considered sound trial strategy.’”          Aptt , 354 F.3d at

1284 (quoting Strickland , 466 U.S. at 689). Strategic decisions of trial counsel

are ordinarily shielded from charges of ineffectiveness. “‘Tactical decisions,

whether wise or unwise, successful or unsuccessful, cannot ordinarily form the

basis of a claim of ineffective assistance.’”         Hatch v. Oklahoma , 58 F.3d 1447,

1459 (10th Cir. 1995) (quoting     United States v. Ortiz Oliveras, 717 F.2d 1, 3,

(1st Cir. 1983). “For counsel’s advice to rise to the level of constitutional

ineffectiveness, the decision to [stipulate to the admission of an exhibit] must

have been completely unreasonable, not merely wrong, so that it bears no

relationship to a possible defense strategy.”         Hatch , 58 F.3d at 1459 (quotation

omitted).

       This deference to an attorney’s strategic trial decision will stand unless the

decision itself was objectively unreasonable.          Bullock v. Carver , 297 F.3d 1036,

1047 (10th Cir. 2002). But “[w]here it is shown that a particular decision was, in

fact, an adequately informed strategic choice, the presumption that the attorney’s

decision was objectively reasonable becomes ‘virtually unchallengeable.’”            United




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States v. Nguyen , 413 F.3d 1170, 1181 (10th Cir. 2005) (citing   Bullock , 297 F.3d

at 1044).

       “[T]he mere incantation of ‘strategy’ [however] does not insulate attorney

behavior from review.”     Bullock , 297 F.3d at 1048 (internal quotation marks and

citation omitted). “[T]he ultimate inquiry when deciding whether an attorney

performed in a constitutionally deficient manner is not whether the counsel’s

actions can be considered strategic, but whether, under all the circumstances,

counsel’s actions may be considered objectively reasonable.”      Id. at 1041.

“Whether a petitioner’s claim satisfies   Strickland’s two-part test is a mixed

question of law and fact we review de novo.”     Id. at 1044.

       At the § 2255 hearing, at which trial counsel testified, Mr. Murphy argued

that trial counsel’s decision to stipulate to the admission of exhibit 352 was not

reasonable and therefore not shielded from post conviction review; that there

would have been a good objection to the exhibit, either on the basis of hearsay or

authenticity; and that the government could not have laid more foundation for the

exhibit to overcome a successful objection. Aplt. App. Vol. III at 1023.

Mr. Murphy also argued in his brief to the district court that he had been

prejudiced by trial counsel’s representation.

       The district court disagreed that trial counsel had been ineffective, finding

that it was reasonable strategy to conclude that admission of the exhibit would aid


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in Mr. Murphy’s defense by getting a seemingly helpful document before the jury

without having to call Mr. Murphy as a witness.         Id. at 1029. Elaborating, the

district court concluded that the problem with the exhibit was not a hearsay

problem but one of authenticity and that the government could have called

Mr. Bruce Murphy or Mr. John Aptt to authenticate the document or have

otherwise authenticated it.    Id. at 1030-33. As for the prejudice prong of an

ineffective assistance claim, the district court concluded that, because there was

more than sufficient other evidence of Mr. Murphy’s guilt aside from the exhibit,

he was not prejudiced by its admission.       Id. at 1036-37.

       At the § 2255 hearing, trial counsel testified that he had considered all of

the potential exhibits and “how . . . the trial would play out”and that he and his

client “really wanted [exhibit 352] in.”      Id. Vol. III at 957. In response to a

question from the court as to why the defense wanted exhibit 352 in evidence, the

attorney explained that he and Mr. Murphy felt that there were positive aspects to

the exhibit and that their trial strategy was a distancing strategy.    Id. Counsel

testified:

       In other words, John Aptt, this was his deal, and he had
       masterminded this whole deal. And what I wanted to do at trial, and
       Doug and I had agreed upon that, is to distance him away from John
       Aptt, and also FIG and Global Instruments Group . . . .

             But there were positives in 352, because it showed that there
       was an attempt for Doug to want John Aptt to make sure everything


                                              -7-
      was complied with, including SEC regulations, including honesty
      aspects. And so there were positive aspects that we viewed in 352.

Id. at 957-58.

      When asked whether he had considered objecting to the foundation of the

exhibit and its authenticity and forcing the government to its proof, counsel

recalled that he had discussed those issues with his client, but that “there were

certain things we wanted definitely in front of the jury, and 352 was really one of

them.” Id. at 995. At one point during the hearing, the court even commented

that he understood counsel to have considered ways to block the exhibit’s

admission but that “[h]e just considered it very quickly, because it was primarily

on his mind that he wanted it in. And if you want it in, you don’t spend a lot of

time researching ways to keep it out.”    Id. at 1016.

      Thus, although both Mr. Murphy and his counsel were aware of the

negatives that exhibit 352 would reveal, defense strategy was to get the exhibit

before the jury without having Mr. Murphy testify.        Id. at 1004.

      Despite Mr. Murphy’s strong arguments to the contrary, we are unable to

conclude that trial counsel’s representation in this regard was ineffective. On

direct appeal, this court noted that any question of counsel’s ineffectiveness was

more properly brought in a collateral proceeding.        Aptt , 354 F.3d at 1284.

Specifically the panel noted, “the record [on appeal] does not show whether

counsel for Mr. Murphy had carefully reviewed the stipulated exhibits, nor does it

                                           -8-
show whether he hoped to gain any strategic advantages by making the

stipulation.”   Id. at 1284-85. Now, thanks to the hearing held by the district

court, we can answer confidently that counsel carefully reviewed exhibit 352 and

concluded, in accord with Mr. Murphy, that they could gain a strategic advantage

by getting the exhibit before the jury without having to call Mr. Murphy to

authenticate it. Counsel’s performance was thus not only an adequately informed

strategic choice, it was, under all the circumstances, objectively reasonable.        See

Bullock , 297 F.3d at 1047.

       Mr. Murphy’s arguments theorizing how he could have kept exhibit 352

away from the jury are beside the point. The strategy was to get the exhibit in, a

tactic that, while not as successful as Mr. Murphy would have wished, was not

unreasonable. The fact that the strategy was unsuccessful, perhaps even unwise,

is not a basis upon which to find ineffective assistance of counsel.       Hatch ,

58 F.3d at 1459.

       In addition to his arguments concerning the admission of exhibit 352,

Mr. Murphy points to what he considers additional instances of counsel’s

ineffectiveness. While those examples may or may not have been objectively

reasonable performance by trial counsel, Mr. Murphy has made no showing that

the alleged errors prejudiced him.     See Rompilla , 125 S. Ct. at 2476 (Kennedy, J.,

dissenting) (noting that the defendant has the burden of proving prejudice);         see


                                             -9-
also Strickland , 466 U.S. at 697 (“If it is easier to dispose of an ineffectiveness

claim on the ground of lack of sufficient prejudice, which we expect will often be

so, that course should be followed.”).

      The judgment of the district court is AFFIRMED.

                                                      Entered for the Court


                                                      Stephen H. Anderson
                                                      Circuit Judge




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