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                                 No. 95-2311
                                _____________

United States of America,             *
                                      *
           Plaintiff - Appellee,      *    Appeal from the United States
                                      *    District Court for the
     v.                               *    District of Minnesota.
                                      *
John Corcoran Wicker,                 *
                                      *
           Defendant - Appellant.     *


                                _____________

                        Submitted:   November 14, 1995

                          Filed: April 3, 1996
                               _____________

Before HANSEN, JOHN R. GIBSON, and MURPHY, Circuit Judges.
                              _____________


HANSEN, Circuit Judge.

     John Corcoran Wicker appeals the district court's1 denial of his
motion to withdraw a guilty plea to conspiracy to commit mail fraud in
violation of 18 U.S.C. § 371 and 18 U.S.C. § 1341.       We affirm.


                                      I.


     Wicker was charged in a 23-count superseding indictment with one
count of conspiracy to commit mail fraud under 18 U.S.C. § 371 and twenty-
two counts of mail fraud under 18 U.S.C. § 1341.         At his plea hearing,
pursuant to a written plea agreement, he entered a




     1
      The Honorable David S. Doty, United States District Judge
for the District of Minnesota.
guilty plea to count one of the indictment, which charged him with
violating §§ 371 and 1341 through a scheme to defraud and obtain money and
property from homeowners by means of false and fraudulent pretenses and
using the United States mails in furtherance of that scheme.2          At his plea
hearing, Wicker stated he understood the nature of the charges against him,
that he was volitionally entering his plea, and that his trial counsel had
represented him well.        Wicker specifically testified to the following
facts.


     In 1984, Wicker formed the company called Neltom, Inc. (later renamed
Shorwac), for which he performed the bulk of the day-to-day business.              He
                         3
brought Patricia Shivers into the operation in 1985 and employed a number
of people at different times.           In this business, Wicker would locate
homeowners who had substantial equity in their homes, but who were behind
in their mortgage payments and in danger of having their homes foreclosed
by the bank.   Through a series of misrepresentations, Wicker would convince
the homeowners to convey their homes to him in the hope of recovering the
property from him later.


     The misrepresentations included both false statements and omissions
of material facts that would have affected the homeowners' decisions
regarding   their   property.     For    example,   Wicker   failed   to   tell   the
homeowners that he planned to put additional mortgages on the properties,
many of which mortgages exceeded the amounts necessary to redeem the
properties.    He also




     2
      Wicker asserts that count one of his superseding indictment
does not charge him with violating 18 U.S.C. § 371.          He is
incorrect.   Count one of the superseding indictment includes a
charge under 18 U.S.C. § 371 at pages 1 and 43.           The plea
transcript clearly shows him pleading to a conspiracy charge. (Plea
Tr. at 5, 6, 13, 20-21.)
     3
      Shivers entered a guilty plea to an information charging
her with conspiracy to defraud the United States (Internal
Revenue Service) under 18 U.S.C. § 371, one day before Wicker
pleaded guilty to count one of the superseding indictment.

                                          2
failed to tell the homeowners that he planned to use "straw parties" to
encumber the titles of the properties.                    Once Wicker acquired title, he
would in some cases charge the homeowners rent and use the rent money for
purposes other than paying the obligations on the property, leaving
homeowners who wanted to recover their property ultimately liable for those
amounts.     In other cases, Wicker told homeowners that he would create
contracts for deed on the properties; he failed to tell those homeowners
he would sell the contracts for deed, reaping a profit for himself,
Shivers, or other investors to whom Wicker owed money.                      This artifice of
enticing    people     to    give    him    title    to    their   homes    through   material
misrepresentations was driven, in large part, by Wicker's desire to wring
additional funds out of the homeowners' properties.                    Wicker's signed plea
agreement    also      contained      a     similar       recitation   of    the   underlying
incriminating facts.


        After the plea hearing, a presentence investigation ensued and a
report was compiled.         Wicker's counsel filed objections to the report, and
a sentencing hearing was scheduled.                Shortly before the scheduled hearing,
Wicker obtained new counsel and filed a motion to withdraw his guilty plea,
asserting, among other things, that the evidence presented at his plea
hearing was insufficient to establish an adequate factual basis for his
plea.    The court held an evidentiary hearing, found the factual foundation
for the plea to be adequate, and denied the motion.


        Wicker    subsequently       filed     a    motion    to   reconsider,     this     time
contending that Wicker's former counsel had labored under an actual
conflict of interest, which rendered counsel ineffective.                     As evidence of
a conflict, Wicker submitted copies of memoranda that his former counsel
had     written   to   the    file    upon     becoming      concerned      that   Wicker    was
contemplating a malpractice suit against counsel.                  The district court held
another evidentiary hearing.               After receiving testimony from both Wicker
and his former counsel, the court determined that the former counsel had
not labored under a




                                                3
conflict of interest and had competently represented Wicker.                The court
denied the motion to reconsider and sentenced Wicker in accordance with his
guilty plea and his plea agreement.             Wicker appeals the denial of his
motion to withdraw his guilty plea.


                                         II.


     A court may grant a motion to withdraw a guilty plea if a defendant
files such a motion before sentencing and establishes a fair and just
reason for withdrawing the plea.        Fed. R. Crim. P. 32(e).4       The defendant
bears the burden of establishing a fair and just reason.          United States v.
Yell, 18 F.3d 581, 582 (8th Cir. 1994).           "[T]he `fair and just' standard
is a liberal standard, [but] it does not create an automatic right to
withdraw a plea."         United States v. Kelly, 18 F.3d 612, 618 (8th Cir.
1994).    Besides considering whether the defendant has established a fair
and just reason, a district court must also consider "whether the defendant
asserts his innocence of the charge, the length of time between the guilty
plea and the motion to withdraw it, and whether the government will be
prejudiced if the court grants the motion."         United States v. Nichols, 986
F.2d 1199, 1201 (8th Cir. 1993).         However, "[i]f the defendant fails to
establish a fair and just reason for withdrawing the guilty plea, the trial
court need not address the remaining considerations."            Id.


     We    review   the    district   court's   decision   to   deny   a   motion   for
withdrawal for an abuse of discretion.            Yell, 18 F.3d at 582.        Wicker
contends that the district court abused its discretion by failing to find
a "fair and just reason."      Specifically, Wicker argues that the transcript
does not contain an adequate factual




     4
      Subdivision (e) under the 1994 amendment to the Federal
Rules of Criminal Procedure was formerly subdivision (d). The
new provision is essentially the same, except for minor stylistic
changes. Fed. R. Crim. P. 32 (commentary to the 1994 amend.,
subd. (e)).

                                          4
basis supporting Wicker's guilty plea and that Wicker's trial counsel
labored under a conflict of interest that led counsel to inadequately
advise Wicker.    We address these arguments in turn.5


     A.     Factual Plea Foundation


         Under Rule 11(f) of the Federal Rules of Criminal Procedure, a court
must make an inquiry sufficient to satisfy itself that a factual basis
exists for the guilty plea.    "A factual basis exists, even if the defendant
protests his innocence, if sufficient evidence is presented at the time of
the plea for the court to reasonably determine that the defendant committed
the offense."      Roberson v. United States, 901 F.2d 1475, 1477 n.3 (8th
Cir. 1990). Wicker contends the record does not contain an adequate factual
foundation to support either mail fraud or conspiracy.      We disagree.


     To commit mail fraud, one must "devise[] or intend[] to devise any
scheme . . . to defraud, or to obtain money or property by means of false
or fraudulent pretenses" and use the United States mails in furtherance of
that scheme.      18 U.S.C. § 1341 (1994).    Wicker first argues that the
factual basis for mail fraud is inadequate as to his intent to defraud
because the evidence does




     5
      After Wicker's counsel had filed a brief with this court,
Wicker moved to file a pro se supplemental brief with numerous
evidentiary exhibits, some of which we believe were stricken from
the record below by the district court in its order of May 30,
1995. As a matter of Eighth Circuit policy, we ordinarily do not
accept pro se briefs from a party who is represented by counsel.
United States v. Blum, 65 F.3d 1436, 1443 n.2 (8th Cir. 1995),
cert. denied, 1995 WL 761577 (U.S. Jan. 22, 1996); United States
v. Marx, 991 F.2d 1369, 1375 (8th Cir.), cert. denied, 114 S. Ct.
618 (1993). Even though Wicker's retained counsel has rendered
able representation in this case, we have gratuitously examined
the tendered pro se filings. We find they set forth no material
of arguable merit not already covered by retained counsel's
argument and brief. The pro se motion to formally file the same
is denied. The clerk shall retain the pro se brief as tendered
so a record is made of what we have in fact reviewed.

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not   establish      that   he    knew    his    activities      were   illegal.         Wicker
misunderstands the intent required for mail fraud.                  "The critical inquiry
is not whether [Wicker] intended to break the law, but, rather, whether
[he] intended to defraud the [homeowners]."                United States v. Costanzo, 4
F.3d 658, 664 (8th Cir. 1993).           "A scheme to defraud is generally one which
is reasonably calculated to deceive persons of ordinary prudence and
comprehension."      United States v. Behr, 33 F.3d 1033, 1035 (8th Cir. 1994).
To    that   end,    Wicker      admitted   at      his   plea    hearing    that   he     used
misrepresentations of material facts to cause the homeowners to turn their
properties over to him.          He further conceded that his misrepresentations
were driven in large part by his desire to draw funds out of the
homeowners' properties.           This testimony provides abundant evidence from
which the district court could conclude that Wicker intended to defraud the
homeowners and that he executed a scheme to obtain property by means of
false or fraudulent pretenses.


       Wicker's second challenge to the factual foundation to his plea is
that the testimony at his plea hearing failed to establish that Wicker used
the United States mail in furtherance of executing his scheme.                  The record,
however, indicates otherwise.            When the district court asked at the plea
hearing whether Wicker had used the United States mails in carrying out his
scheme, Wicker nodded his head and answered, "We used the United States
mails, Your Honor."         (Plea Tr. at 23.)
       Wicker's challenge to the factual basis for his plea to conspiracy
to commit mail fraud under 18 U.S.C. § 371 also fails. Wicker asserts his
plea was inadequate because the thrust of the government's and the district
court's questions focused only on Wicker's intent to defraud homeowners,
not his specific intent to defraud the United States. Wicker's argument
misapprehends       the   indictment.       Section       371    prohibits   two    types    of
conspiracy: conspiring "to commit any offense against the United States"
and conspiring "to defraud the United States."                   18 U.S.C. § 371 (1994).




                                                6
Wicker's indictment charges him not with conspiring to defraud the United
States, but with conspiring to commit an offense against the United States,
namely mail fraud.    Under the conspiracy charge in this case, the intent
the government must establish at a minimum is the necessary intent for the
substantive crime, here mail fraud, which, as explained above, was amply
demonstrated.   See United States v. Feola, 420 U.S. 671, 687 (1975) ("[I]n
order to sustain a judgment of conviction on a charge of conspiracy to
violate a federal statute, the Government must prove at least the degree
of criminal intent necessary for the substantive offense itself.");   United
States v. Fairchild, 526 F.2d 8, 11 (8th Cir. 1975) ("[W]here a substantive
offense embodies only a requirement of mens rea as to each of its elements,
the general federal conspiracy statute requires no more.") (quoting Feola,
420 U.S. at 694); United States v. Friedman, 506 F.2d 511, 516 (8th Cir.
1974), cert. denied, 421 U.S. 1004 (1975) ("The required intent [for
conspiracy] is no less nor no more than that necessary to commit the
substantive crime.").     Given the admissions made by Wicker at the plea
proceeding concerning his involvements with Ms. Shivers and others, the
factual foundation establishing a § 371 conspiracy violation was more than
adequate.


     We believe the evidence at the plea hearing was sufficient for the
district court to reasonably determine that the defendant violated both 18
U.S.C. § 1341 and 18 U.S.C. § 371.    The district court therefore did not
abuse its discretion in denying Wicker's later motion to withdraw his
guilty plea on the basis of an inadequate foundation under Federal Rule of
Criminal Procedure 11.


     B.     Conflict of Interest


     Wicker's second attack on the district court's determination that
Wicker did not establish a "fair and just reason" under Federal Rule
Criminal Procedure 32(b) to withdraw his guilty plea involves his trial
counsel's alleged conflict of interest.    Wicker




                                     7
points to memoranda his attorney wrote to the file as evidence of a
conflict.    Wicker asserts the memoranda reveal a fear of malpractice, which
divided his attorney's loyalty between Wicker on one hand and the attorney
and the attorney's law firm on the other.                   Wicker argues that, because of
this alleged actual conflict of interest, he was presumably prejudiced and
his counsel was ineffective.          See Strickland v. Washington, 466 U.S. 688,
692 (1984).    The government responds that no conflict existed, contending
that   the   memoranda    do    not   reveal      a    divided       loyalty,    but    rather   a
conscientious    attorney       who   was   concerned         that    Wicker    was    not   being
completely forthright.


       The district court conducted an evidentiary hearing on this issue,
during which the court heard conflicting testimony from                         Wicker and his
former attorney about the extent of the attorney's trial preparation
efforts and any alleged conflict.            After reviewing the testimony, along
with other submitted evidence, the district court found that Wicker had
failed to prove that his counsel had actively represented conflicting
interests, that counsel had taken any action unfavorable to Wicker's
interests, or that Wicker was prejudiced by the alleged conflict of
interest.    The court concluded that Wicker had entered his plea knowingly
and voluntarily and had established no fair and just reason for withdrawing
his plea.      When Wicker later attempted to revisit this issue at his
sentencing hearing, the court further explained that Wicker's testimony had
simply lacked credibility.


       We review a district court's determination on issues concerning
conflicts of interest for an abuse of discretion.                    United States v. Haren,
952    F.2d 190, 195 (8th Cir. 1992).                   Credibility determinations are
peculiarly    within     "the   province     of       the   trial    court"     and    "virtually
unreviewable on appeal."        United States v. Heath, 58 F.3d 1271, 1275 (8th
Cir.), cert. denied, 116 S. Ct. 240 (1995).




                                             8
     We have no difficulty in affirming the district court on this issue.
We are unpersuaded by Wicker's theory that an attorney's act of drafting
memoranda to the file, born out of a concern for the integrity of his
practice, in and of itself creates an actual conflict of interest.
Furthermore, Wicker has cited, and we have found, no precedent supporting
this creative argument.    Moreover, given the district court's negative
assessment of Wicker's credibility and the former counsel's contrasting
testimony, we find no abuse of discretion in the court's determination that
no conflict of interest existed.   It follows, then, that the court did not
abuse its discretion in denying Wicker's motion to withdraw based on the
alleged conflict.


                                    III.


     Finding no abuse of discretion in the district court's denial of
Wicker's motion to withdraw his guilty plea, we affirm the judgment of the
district court.


     A true copy.


           Attest:


                  CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.




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