UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

UNITED STATES OF AMERICA,
Plaintiff-Appellee,

v.
                                                                        No. 97-4170
COLIN VICTOR BROOK, a/k/a Thomas
Lindsay Parker,
Defendant-Appellant.

Appeal from the United States District Court
for the District of South Carolina, at Florence.
Cameron McGowan Currie, District Judge.
(CR-96-147)

Submitted: April 14, 1998

Decided: May 8, 1998

Before MURNAGHAN and ERVIN, Circuit Judges, and
BUTZNER, Senior Circuit Judge.

_________________________________________________________________

Affirmed by unpublished per curiam opinion.

_________________________________________________________________

COUNSEL

Colin Victor Brook, Appellant Pro Se. William Earl Day, II, Assistant
United States Attorney, Florence, South Carolina, for Appellee.

_________________________________________________________________

Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
OPINION

PER CURIAM:

Colin Brook appeals his convictions and sentence for mail fraud1
and money laundering.2 Brook engaged in an elaborate scam from
January 1994 to February 1996, that defrauded seven individuals of
at least $2,000,000. After his fraud was discovered, Brook attempted
to conceal his ill-gotten gains from the government by purchasing
bonds to be held by a nominee, making sham loans, and transferring
real and business assets. On appeal, Brook essentially claims that the
government improperly withheld evidence and coerced him into
pleading guilty. Additionally, Brook asserts that the district court
erred in calculating his sentence under the federal sentencing guide-
lines. Finding no reversible error, we affirm Brook's convictions and
sentence of 108 months incarceration.

In February 1996, a grand jury indicted Brook in a two-count
indictment for mail fraud and money laundering. Pursuant to a plea
agreement, Brook pleaded guilty to mail fraud. In return, the govern-
ment agreed to dismiss the money laundering charge and not to prose-
cute Brook for federal firearms violations. The government's
obligations, however, were contingent upon Brook being "fully truth-
ful and forthright" concerning his assets and complying with all terms
of the agreement.

Brook subsequently failed a polygraph examination during a
debriefing about his assets. Brook gave deceptive answers when ques-
tioned about liquidating assets since entering into the plea agreement
and what he did with the proceeds. Consequently, the government
moved to have its obligations under the plea agreement declared null
and void. After an evidentiary hearing, the district court granted the
government's motion. Brook then pled guilty, pursuant to a written
plea agreement, to money laundering and again promised to truthfully
and fully disclose his assets. Again, Brook failed a polygraph exami-
nation concerning his assets.
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1 See 18 U.S.C. § 1341 (1994).

2 See 18 U.S.C.A. § 1956(a)(1)(A)(i) (West Supp. 1998).

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At Brook's sentencing hearing, the district court determined that
Brook had obstructed justice by lying during the polygraph examina-
tion and refused him an adjustment for acceptance of responsibility.
The government then withdrew its motions to set aside Brook's sec-
ond plea agreement and for an upward departure. With the two-level
adjustment for obstruction of justice, Brook's offense level was 27;
he was in criminal history category III, making his guideline range 87
to 108 months. The court imposed a sentence of 108 months incarcer-
ation with three years supervised release and $1,999,271 restitution.
Brook appealed.

First, Brook claims that the government failed to provide exculpa-
tory material pursuant to Brady v. Maryland, 373 U.S. 83 (1963).
Brook asserts that he was prejudiced by the government's failure to
timely disclose a possibly exculpatory Federal Bureau of Investiga-
tion (FBI) Form 302 concerning statements he made in November
1995. Brook's claim is without merit because the record does not
reveal the untimely disclosure of any evidence or that the FBI Form
302 was exculpatory. Moreover, Brook failed to raise this issue at any
of his numerous hearings, and by pleading guilty Brook waived ante-
cedent non-jurisdictional errors.3

Brook also claims that the district court abused its discretion when
it considered his failed polygraph examinations in determining that he
had failed to comply with the terms of the plea agreement. Courts
have broad discretion whether to admit or exclude polygraph evidence,4
and Brook agreed when he pled guilty to have the information he pro-
vided verified by a polygraph examination. Under these circumstance,
we find no abuse of discretion.

Moreover, the court did not abuse its discretion, during the eviden-
tiary hearing on Brook's failure to comply with the plea agreement,
in sustaining the government's objection to cross-examining a witness
using an FBI Form 302. A trial court's evidentiary rulings are entitled
to substantial deference,5 and a court has great discretion on limiting
_________________________________________________________________
3 See Tollett v. Henderson, 411 U.S. 258, 266-68 (1973).

4 See United States v. Webster, 639 F.2d 174, 186 (4th Cir. 1981).
5 United States v. Russell, 971 F.2d 1098, 1104 (4th Cir. 1992).

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testimony that leads away from the main controversy. 6 Further, the
FBI Form 302 was not admissible as a prior statement because it was
not a prior statement made by the witness, but a summary of an inter-
view prepared by an FBI agent.7 Moreover, Brook failed to lay a
proper foundation for use of the FBI Form 302, and the court did in
fact question the witness concerning discrepancies between his testi-
mony regarding the amount of loss suffered and the amount he had
previously reported to the FBI.

Brook also contends that he was coerced into entering his second
guilty plea when the court ruled the government's obligations under
the first guilty plea were void. Brook's own failure to cooperate fully
and truthfully voided the government's obligations under his first plea
agreement. Brook was free to accept or reject the government's sec-
ond plea offer, and there was no improper attempt by the prosecution
to prevent Brook from invoking his rights.8 Thus, Brook's second
guilty plea was an informed, intelligent, and voluntary decision.9

Next, Brook claims that the court erred in calculating his sentence.
Specifically, Brook asserts that the court improperly grouped together
his mail fraud and money laundering counts, and failed to establish
a methodology to determine the amount of loss suffered by his vic-
tims. Brook's claim is without merit. Where two or more counts are
so closely related that they represent one harm, they are grouped
together and treated as one offense.10 Moreover, Application Note 6
to USSG § 3D1.2(d),11 expressly permits the grouping of offenses
under the fraud and money laundering guidelines; 12 therefore, the
offenses were properly grouped together. Further, the court received
substantial evidence and testimony concerning the extent of Brook's
_________________________________________________________________
6 See Davis v. Alaska, 415 U.S. 308, 316 (1974); United States v.
McMillon, 14 F.3d 948, 956 (4th Cir. 1994).
7 See FED. R. E VID. 613 & 801.
8 See Blackledge v. Perry, 417 U.S. 21, 27-28 (1974).

9 See Boykin v. Alabama, 395 U.S. 238, 242 (1969).
10 See United States v. Young, 916 F.2d 147, 151-52 (4th Cir. 1990).
11 U.S. SENTENCING G UIDELINES MANUAL (1995).

12 See United States v. Porter, 909 F.2d 789, 792-93 (4th Cir. 1990).

                    4
fraud and his victims' losses; thus, based upon the record, the district
court's findings are not clearly erroneous.13

Finally, we decline to address on direct appeal Brook's claim that
counsel was ineffective. Ineffective assistance of counsel claims
should be raised by motion under 28 U.S.C.A. § 2255 (West 1994 &
Supp. 1997) in the district court and not on direct appeal, unless it
"conclusively appears" in the trial record that counsel did not provide
effective representation.14 The record does not conclusively show that
counsel's actions were ineffective.

We therefore affirm Brook's conviction and sentence. We dispense
with oral argument because the facts and legal contentions are ade-
quately presented in the materials before the court and argument
would not aid the decisional process.

AFFIRMED
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13 See United States v. Mullens , 65 F.3d 1560, 1564 (11th Cir. 1995)
(grouping mail fraud and money laundering offenses under § 3D1.2(d)).
14 See United States v. Fisher, 477 F.2d 300, 302 (4th Cir. 1973).

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