                                                                              United States Court of Appeals
                                                                                       Fifth Circuit
                                                                                    F I L E D
                    IN THE UNITED STATES COURT OF APPEALS
                                                                                   September 14, 2007
                                 FOR THE FIFTH CIRCUIT                           Charles R. Fulbruge III
                                                                                         Clerk


                                         No. 05-60390



       UNITED STATES OF AMERICA,

                                                           Plaintiff-Appellee,

                                             versus

       HAROLD J. WHEELER; LAWYER WHEELER, JR.,

                                                           Defendants-Appellants.



                    Appeal from the United States District Court for
                         the Northern District of Mississippi
                              (USDC No. 4:01-CR-209)
           _________________________________________________________

Before JONES, Chief Judge, and REAVLEY and SMITH, Circuit Judges.

PER CURIAM:*

       Brothers Harold J. Wheeler and Lawyer Wheeler, Jr. (collectively “the Wheelers”)

are Mississippi farmers convicted by jury under 18 U.S.C. § 1001 of making material

false statements regarding planting dates in their applications for crop disaster assistance.

We affirmed the Wheelers’ convictions on the merits in an unpublished opinion, United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 R. 47.5, the Court has determined that this opinion should not be
published and is not precedent except under the limited circumstances set forth in 5TH CIR.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.
States v. Wheeler, No. 02-60830, 79 Fed. App’x 656 (5th Cir. 2003). The Wheelers now

appeal the district court’s denial of habeas corpus filed under 28 U.S.C. § 2255 on

grounds of ineffective assistance of counsel. We affirm.

      1.     The Government challenges our jurisdiction on grounds that the

             materiality issue raised by the Wheelers has been adjudicated. We may not

             consider an issue on petition for habeas when that issue was found against

             the petitioner at trial and on direct appeal. United States v. Segler, 37 F.3d

             1131 (5th Cir. 1994). With respect to the issue of materiality, the Wheelers

             argued at trial and on direct appeal that the planting dates of their cotton

             crops were not material because (1) the disaster form did not have a specific

             blank for the planting date, (2) the Farm Service Agency (“FSA”) employee

             in Carroll County did not ask Harold Wheeler for a planting date, and (3)

             the FSA downloaded the planting date from the crop insurance form after

             the entitlement forms had already been prepared. Wheeler, 79 Fed. App’x

             at 663. The jury rendered a verdict of guilty on the disaster relief charge

             under section 1001(a)(2) and therefore must have concluded that the

             misstatement of the dates on the application was material for the purposes

             of determining whether an eligible crop “disaster,” versus an avoidable poor

             outcome from bad crop practice (e.g. late planting), occurred.

                    However, the Wheelers’ current materiality argument is that

             (1) crops on the two non-irrigated tracts of land involved in their

                                             2
             convictions were not eligible for disaster benefits under any circumstances

             and therefore the stated planting dates, even if false, were of no moment;

             and (2) the application for disaster relief was made past the deadline, and

             therefore the stated planting date for the irrigated tract of land involved in

             their convictions, even if false, was irrelevant. The Wheelers argue that

             trial and appellate counsel should have recognized this threshold

             ineligibility for disaster benefits and utilized a “trivial falsehood”

             defense.1 These particular contentions were not presented to any court until

             the Wheelers’ instant habeas petition, and therefore are not procedurally

             barred.

      2.     We review ineffective assistance of counsel claims under the standard

             announced in Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052

             (1984). United States v. Jones, 287 F.3d 325, 329 (5th Cir. 2002). The

             petitioner must show (1) that counsel's representation was deficient, and (2)

             actual prejudice resulted from the deficient performance. Id. The Wheelers

             have failed to demonstrate either.

      3.     In order to prove that counsel was deficient, a petitioner must show that


      1
           We have recognized that the purpose of the materiality requirement of section
1001 is to exclude trivial falsehoods from the purview of the statute, since false
statements that lack the capacity to influence a determination required to be made are too
trivial to violate the statute. United States v. Baker, 626 F.2d 512, 514 (emphasis in
original, internal quotations and citation omitted).


                                             3
           “counsel made errors so serious that counsel was not functioning as the

           ‘counsel’ guaranteed by the Sixth Amendment.” Strickland, 466 U.S. at

           687. In reviewing counsel’s performance, we employ an objective standard

           of reasonableness, and “indulg[e] a strong presumption that counsel's

           conduct falls within the wide range of reasonable professional assistance . .

           . .” Id. at 689.

                  The Wheelers have made no showing of deficient performance in

           that they have not adequately demonstrated the viability of the two-prong

           defense they claim trial counsel erred in not presenting. With respect to

           their irrigated cotton-behind-wheat crops, the defense the Wheelers

           now urge is that the relief application for these crops was untimely.

                  But, while the application filed by Harold Wheeler four days before

                  the deadline did not initially cover all of his acreage and he later

signed a          revised version, the record reflects that (1) the county FSA office did

not        consider the application late-filed, (2) the supplement to the Wheeler

           application was a common type clearly contemplated and provided

           for in the 1998 regulations (see former 7 C.F.R. 1477.102(e), 64 FR

                  188553-01, 1999 WL 214426), and (3) even if the application had

been       considered late-filed by the FSA, the option for          an extension would

have       been readily available to the Wheelers (see id. and former 7 C.F.R.

           1477.105(c), 64 FR 188553-01, 1999 WL 214426). We therefore agree

                                          4
             with the district court’s conclusion that signing for the corrected

             information was merely a continuation of the timely-begun application

             process and immateriality of the misstated planting dates could not have

             been successfully established under a late-filing rationale.

                    The second allegedly overlooked defense the Wheelers point out —

             that any false statements as to the planting dates of their non-irrigated

             cotton-behind-wheat crops are immaterial due to the complete ineligibility

             of those crops for disaster relief2 — is likewise without teeth. On this

             record, we cannot agree with the Wheelers’ claim that their disaster relief

             applications were ineligible for consideration for relief and thus “dead on

             arrival.” The programs are expansive with provisions for virtually all

             circumstances. Testimony reveals that, had the Wheelers been either

             truthful or believed as to when they planted, the FSA would have properly

             applied the programs regardless of what specific relief category the

             Wheelers checked, separating any non-eligible acreage and assessing

             reductions for poor planting practices or late planting.


      2
          The Wheelers now allege that the two non-irrigated cotton crops at issue do not
fall into any of the three disaster relief options: Insured (for which they applied),
Uninsured, or Noninsurable. They reason that (1) cotton was an insurable crop and
therefore not eligible for the noninsurable benefits (which they, in any event, did not
apply for) and (2) although their cotton was insurable (and, in fact, insured), the non-
irrigated cotton behind wheat was a crop practice excluded from coverage in the crop
insurance policy, and disaster assistance under the Insured or Uninsured options is not
available for a crop practice that leads to an ineligible loss under crop insurance.

                                             5
4.   Further, we have held that materiality is established where the

     false statement has the capacity to influence an agency decision.

     See, e.g., United States v. McIntosh, 655 F.2d 80, 83 (5th Cir. 1981).

     We also find instructive the well-settled authority of our sister circuit

     for the proposition that, where an applicant has willfully submitted a

     false statement calculated to induce agency reliance, irrespective of

     whether actual favorable agency action was for other reasons impossible,

     the otherwise material statement is not rendered immaterial under § 1001.

     See, e.g., United States v. Quirk, 266 F.2d 26 (3d Cir. 1959).

            Here, there is no question that the Wheelers falsely stated

     their planting dates and that the Government has shown that planting

     dates are material to a determination of benefits eligibility. We have

     affirmed both in our prior opinion in this case. The false statements related

     to both the Wheelers’ irrigated and non-irrigated cotton crops therefore had

     the capacity to influence the agency’s decision and thus were not

     immaterial.

5.   Even if the Wheelers’ proposed defenses were viable, trial counsel’s

     decision not to employ them is entitled to deference as reasonable trial

     strategy. United States v. Jones, 287 F.3d 325, 331 (5th Cir. 2002) (“A

     conscious and informed decision on trial tactics and strategy cannot be the

     basis for constitutionally ineffective assistance of counsel unless it is so ill

                                     6
         chosen that it permeates the entire trial with obvious unfairness.” ). The

         position that the non-irrigated crops were ineligible for insurance and

         therefore for disaster relief is inconsistent both with the Wheelers’ own

         testimony and the largely successful strategy3 pursued by counsel at trial

         grounded on a precisely opposite premise: that the non-irrigated double

         cropping was not in fact a poor practice and that the tracts in question were

         technically irrigated under the terms of the crop insurance policy. The

         Wheelers’ current argument on this front ignores the fact that they were

         facing both crop insurance fraud and disaster program fraud counts at trial.

         There is no hint of unfairness. Trial counsel’s tactics may have been the

         best available and the record amply reflects that the Wheelers consented to

         their use. Jones, 287 F.3d at 331.

6.       For this reason, the Wheelers’ also have made no showing of the second

         Strickland prong — prejudice — because they have not shown that there is

         any reasonable probability that the proceedings would have been different

         (in their favor) had counsel made the arguments and defenses the Wheelers

         here raise. Strickland, 466 U.S. at 689. Rather, had the trial defense been

         pursued as the Wheelers now urge, there is a reasonable probability that

         they would have been convicted of crop insurance fraud as well as disaster



3
     The Wheelers were each acquitted of three of four counts levied against them.

                                        7
            program fraud.

AFFIRMED.




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